DISTRIBUTION AGREEMENT
AGREEMENT, made as of this 26 day of August, 1999, by and between The
Navellier Top 20 Portfolio ("Portfolio") of The Navellier Millennium Funds, a
business trust organized under the laws of the State of Delaware (the
"Fund"), and Navellier Securities Corp., a corporation (the "Distributor").
W I T N E S S E T H
WHEREAS, the Fund is registering as an investment company under the
Investment Company Act of 1940, as amended (the "1940 Act"), and intends to
engage in business as an open-end management investment company;
WHEREAS, the Fund desires to employ the Distributor to act as principal
underwriter (as defined in the Act) with respect to the continuous offering of
its Class A shares of common stock of the Portfolio, at no par value (the
"Shares"), and the Distributor is willing to serve in such capacity pursuant to
the terms and conditions of this Agreement;
WHEREAS, this Agreement has been approved by a vote of the Board of
Trustees of the Fund, including a majority of the Trustees who are not
"interested persons" of the Fund, as defined in the Act, and who have no direct,
or indirect financial interest in the operation of this Agreement (the
"disinterested Trustees") cast in person at a meeting called for the purpose of
voting on this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and other good and valuable consideration, the receipt of which is hereby
acknowledged, it is agreed by and between the parties hereto as follows:
1. APPOINTMENT OF THE DISTRIBUTOR.
(a) The Fund hereby appoints the Distributor as the principal
underwriter and distributor of the Portfolio's Class A Shares to sell and to
arrange for the sale of Shares to the public on the terms set forth in this
Agreement and the Distributor hereby accepts such appointment and agrees to
act in accordance herewith. The Fund, during the term of this Agreement,
shall sell Shares to the Distributor upon the terms and conditions set forth
herein.
(b) The Distributor agrees to purchase Shares, as principal for its
own account, from the Fund and to sell Shares, as principal, to investors and
dealers, upon the terms described herein and in the Fund's prospectus (the
"Prospectus") and statement of additional information (the "Statement of
Additional Information") included in the Fund's Registration Statement (the
"Registration Statement") last filed with the Securities and Exchange Commission
(the "SEC") and declared effective under the 1933 Act and 1940 Act
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or as said Prospectus and Statement of Additional Information may be otherwise
amended or supplemented from time to time thereafter.
2. EXCLUSIVE NATURE OF DUTIES. The Distributor shall be the exclusive
representative of the Fund, in respect of the Portfolio, and act as its
principal underwriter and distributor, except that neither the exclusive rights
granted to the Distributor to sell the Shares nor the right to receive
compensation under Section 3(b) hereof or otherwise hereunder shall apply to
Shares issued by the Fund (i) in connection with the merger or consolidation of
any other investment company or personal holding company with the Fund or the
Portfolios or the acquisition by purchase or otherwise of all (or substantially
all) of the assets or outstanding shares of any such company by the Fund or the
Portfolios, or (ii) pursuant to reinvestment of dividends or capital gains
distributions.
3. PURCHASE OF SHARES FROM THE PORTFOLIO AND COMPENSATION OF DISTRIBUTOR.
(a) Subsequent to the effective date of the Registration
Statement, the Fund will commence a continuous offering of the Shares.
During such continuous offering, the Distributor shall have the right to buy
from the Fund the Shares needed, but not more than the Shares needed (except
for clerical errors in transmissions), to fill unconditional orders for
Shares placed with the Distributor by investors or securities dealers. The
price which the Distributor shall pay for the Shares so purchased from the
Portfolio shall be the net asset value (determined as set forth in Section
3(e) hereof) used in determining the public offering price on which such
orders were based.
(b) A sales charge of 4.95% of the net asset value of the Shares sold
shall constitute the entire compensation (subject to any fees paid to the
Distributor as provided in Section 8 hereof) of the Distributor for acting as
principal underwriter and distributor of the Portfolio. The 4.95% sales charge
shall be reduced to 4.00% for purchases of between $50,000 and $99,999.99, and
shall be reduced to 3.50% for purchases of between $100,000 and $249,999.99 and
shall be reduced to 2.00% for purchases of between $500,000 and $999,999.99.
There is no sales charge for purchases of $1,000,000 or more or for purchases by
Trustees, the Distributor or its employees, or the Investment Advisor or its
employees. The sales charge shall also be reduced for other purchases as
specified in the Prospectus. The sales charge will be deducted from the
purchase price paid by the investor at the time of making the purchase.
There is a contingent deferred sales charge ("CDSC") of 1% on purchases
between $1 million and $2,499,999 which are redeemed within 18 months and the
CDSC is reduced to 0.50% for purchases of $2,500,000 to $4,999,999 which are
redeemed within 18 months of purchase. The CDSC is reduced to 0.25% for
purchases of $5,000,000 or more which are redeemed within 18 months.
(c) The Shares are to be resold by the Distributor to investors at
the public offering price, as set forth in Section 3(d) hereof, or to Selected
Dealers (as hereinafter defined) having agreements with the Distributor upon the
terms and conditions set forth in Section 7 hereof.
(d) The public offering price(s) of the Shares, i.e., the price per
share at which the Distributor or Selected Dealers (as hereinafter defined) may
sell the Shares to the public, shall be the public offering price as set forth
in the then current Prospectus and the Statement of Additional Information
relating to the Shares. If the public offering price does
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not equal an even cent, the public offering price may be adjusted to the
nearest cent. All payments to the Portfolio hereunder shall be made in the
manner set forth in Section 3(g).
(e) The net asset value of the shares of the Portfolio shall be
determined by the Fund or any agent of the Fund once daily at the times and
otherwise in accordance with the terms set forth in the Prospectus and the
Statement of Additional Information and guidelines established by the Board
of Trustees of the Fund, from time to time.
(f) The Fund shall have the right to suspend the sale of the Shares
at times when redemption is suspended pursuant to the conditions set forth in
Section 4(c) hereof. The Fund shall also have the right to suspend the sale of
the Shares if trading on the New York Stock Exchange or other exchange shall
have been suspended, if a banking moratorium shall have been declared by federal
or state authorities, or if there shall have been some other extraordinary
event, which, in the judgment of the Fund, makes it impracticable to sell the
Shares. The Fund also reserves the right to suspend the sale of Shares at any
time, in the absolute discretion of its Board of Trustees.
(g) The Fund, or any agent of the Fund designated in writing by the
Fund, shall be promptly advised of all purchase orders for Shares received by
the Distributor. Any order may be rejected by the Fund; PROVIDED, HOWEVER, that
the Fund will not arbitrarily or without reasonable cause refuse to accept
orders for the purchase of Shares. The Portfolio (or its agent) upon receipt
of payment therefore will enter the purchase and ownership on its books (in lieu
of issuing stock certificates) or a statement confirming the issuance of Shares.
The Distributor agrees to cause such payment and such instructions to be
delivered promptly to the Portfolio (or its agent).
4. REPURCHASE OR REDEMPTION OF SHARES.
(a) Any of the outstanding shares of the Portfolio may be tendered
for redemption at any time, and the Portfolio agrees to redeem the Shares so
tendered in accordance with the applicable provisions set forth in the
Prospectus and the Statement of Additional Information. The price to be paid
to redeem the Shares shall be equal to the net asset value calculated in
accordance with the provisions of Section 3(e) hereof. All payments by the
Portfolio hereunder shall be made in the manner set forth below.
The Portfolio, shall pay the total amount of the redemption price
subsequent to its having received the notice of redemption in proper form,
all in accordance with applicable provisions of the Prospectus and the
Statement of Additional Information on or before the seventh day after
receipt of notice of redemption.
(b) The Distributor is authorized, as agent for the Portfolio, to
repurchase Shares from investors and Selected Dealers in accordance with the
applicable provisions set forth in the then current Prospectus and the
Statement of Additional Information. The Distributor shall promptly transmit
to the Fund's transfer agent for redemption, all orders so received from
Selected Dealers or investors for the repurchase of Shares. The Distributor
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shall be responsible for the accuracy of instructions transmitted to the Fund's
transfer agent in connection with all such repurchases.
(c) The Fund may suspend the right of redemption or dealer payment
more than seven days (a) during any period when the New York Stock Exchange or
other exchange is closed (other than a customary weekend and holiday closing),
(b) when trading on any Exchange is restricted or an emergency exists as
determined by the Securities and Exchange Commission or the Fund so that
disposal of the Fund's investments or determination of the net asset value of
the Portfolios is not reasonably practicable, or (c) during any other period
when the Securities and Exchange Commission, by order, so permits.
5. DUTIES OF THE PORTFOLIO.
(a) The Portfolio shall furnish to the Distributor copies of all
information (including, without limitation, sales literature and
advertisements), financial statements and other papers prepared (or caused by
the Fund to be prepared) for publication or distribution which refer in any
way to the Distributor, prior to the use thereof, and shall not use such
material if the Distributor reasonably objects in writing within five (5)
business days (or such other time as may be mutually agreed) after receipt
thereof. The foregoing sentence shall survive the termination of this
Agreement. The Portfolio shall furnish or otherwise make available to the
Distributor such other information as the Distributor may reasonably request
for use in connection with the distribution of the Shares, including one
certified copy, upon request by the Distributor, of all financial statements
prepared by the Fund, in respect of the Portfolio, and examined by
independent accountants. The Portfolio shall, subject to the provisions of
Section 8 hereof, make available to the Distributor such number of copies of
the Prospectus and the Statement of Additional Information as the Distributor
shall reasonably request.
(b) The Portfolio shall take, from time to time, but subject to
the necessary approval of the Portfolio's Class A shareholders (as may be
required by applicable law), all necessary action to fix the number of its
authorized Shares and to register the Shares under the 1933 Act, to the end
that there will be available for sale such number of the Shares as investors
may reasonably be expected to purchase.
(c) The Fund shall use its best efforts to qualify and maintain the
qualification of an appropriate number of the Shares for sale under the
securities laws of such states as the Distributor and the Fund may approve. Any
such qualification may be withheld, terminated or withdrawn by the Fund at any
time in its discretion. The Distributor shall furnish such information and
other material relating to its affairs and activities as may be required by the
Fund in connection with such qualification.
(d) The Fund shall immediately advise the Distributor (i) when any
post-effective amendment to its Registration Statement or any further amendment
or supplement thereto or any further Registration Statement or amendment or
supplement thereto becomes effective, (ii) of any request by the SEC for
amendment to the Registration Statement or the
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then effective Prospectus or for additional information, (iii) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement, or the initiation of any proceedings for that purpose,
and (iv) of the happening of any event which makes untrue any material statement
made in the Registration Statement or the current Prospectus or which, in the
opinion of counsel for the Fund, requires the making of a change in the
Registration Statement or the current Prospectus in order to make the statements
therein not misleading. In case of the happening at any time of any event which
materially affects the Fund or its securities and which should be set forth in a
supplement to or an amendment of the then effective Prospectus in order to make
the statements therein not misleading, the Fund shall prepare and furnish to the
Distributor such amendment or amendments to the then effective Prospectus, as
will correct the Prospectus so that as corrected it will not contain, or such
supplement or supplements to the then effective Prospectus which, when read in
conjunction with the then effective Prospectus, will make the combined
information not contain any untrue statement of a material fact or any omission
to state any material fact necessary in order to make the statements in the then
effective Prospectus not misleading. The Fund shall, if at any time the SEC
shall issue any stop order suspending the effectiveness of the Registration
Statement, make reasonable effort to obtain the prompt lifting of such order.
(e) Except as otherwise contemplated by Section 8(a) hereof, the Fund
shall, at the expense of the Distributor, furnish, in reasonable quantities upon
request of the Distributor, copies of Prospectuses, Statements of Additional
Information, Proxies and annual and interim reports of the Fund, in respect of
the Portfolios.
6. DUTIES OF THE DISTRIBUTOR.
(a) The Distributor shall devote reasonable time and effort to effect
sales of the Shares (but only in states and other jurisdictions in which it may
legally do so), but shall not be obligated to sell any specific number of
Shares. The services of the Distributor hereunder are not to be deemed
exclusive and nothing herein contained shall prevent the Distributor from
entering into distribution or dealer arrangements with other investment
companies so long as the performance of its obligations hereunder are not
impaired thereby.
(b) Neither the Distributor nor any Selected Dealer nor any other
person is authorized by the Fund to give any information or to make any
representations, other than those contained in the Registration Statement or
related Prospectus and Statement of Additional Information and any sales
literature specifically approved by the Fund.
(c) The Distributor shall cooperate with the Fund in effecting the
qualifications contemplated by Section 5(c) hereof.
(d) The Distributor shall furnish to the Fund copies of all
information including, without limitation, sales literature and advertisements,
financial statements and other papers prepared (or caused by the Distributor to
be prepared) for the publication or distribution, which refer in any way to the
Fund, prior to the use thereof, and shall not use such material if the Fund
reasonably objects in writing within (5) business days (or such
5
other time as may be mutually agreed) after receipt thereof. The foregoing
sentence shall survive the termination of this Agreement.
(e) In selling the Shares, the Distributor shall use its best efforts
in all respects to duly conform with the requirements of all applicable federal,
state and foreign laws. In connection therewith, the Distributor shall use its
best efforts in granting any Distributor's Consent under Section 7(b) hereof, to
make certain that such Foreign Offer or Sale does not violate applicable law or
otherwise cause the Fund to have any liability with respect to such Foreign
Offer or Sale.
7. SELECTED DEALER AGREEMENTS.
(a) The Distributor shall have the right to enter into selected
dealer agreements ("Selected Dealer Agreements") with securities dealers of
its choice (the "Selected Dealers") for the sale of Shares. In connection
with such sales by Selected Dealers, the Selected Dealer Agreement shall
provide that the portion of the Sales Charge which may be allocated to
Selected Dealers shall be limited to all or a portion of the Sales Charge as
stated in the Fund's then current Prospectus. In making agreements with
Selected Dealers, the Distributor shall act only as principal and not as
agent for the Portfolio. Shares sold to Selected Dealers shall be for resale
by such dealers only at the public offering price(s) set forth in the
Prospectus and the Statement of Additional Information.
(b) The Distributor shall offer and sell Shares only to such
Selected Dealers as are (i) members in good standing of the National
Association of Securities Dealers (the "NASD"), or (ii) exempt from
membership in the NASD. In any Selected Dealer Agreement, the Distributor
shall require the Selected Dealer to obtain the written consent of the
Distributor (the "Distributor's Consent") prior to such Selected Dealer's
making, causing to be made or otherwise participating, directly or
indirectly, in the making of any offer or sale of any of the Portfolio's
shares to any individual, corporation, partnership, trust, joint venture, or
other person or entity located outside of the United States of America (a
"Foreign Offer or Sale"). Such Selected Dealer Agreements shall also provide
that any Foreign Offer or Sale shall be made only upon the terms and in
accordance with the conditions set forth in the Distributor's Consent.
(c) The Distributor shall adopt and follow procedures, as approved
by the Portfolio, for the confirmation of sales and Shares to investors and
Selected Dealers, the collection of amounts payable by investors and Selected
Dealers on such sales, and the cancellation of unsettled transactions, as may
be necessary to comply with the requirements of the National Association of
Securities Dealers, as such requirements may from time to time exist.
8. COMPENSATION AND EXPENSES.
(a) Pursuant to its 12b-1 Distribution Plan, and in order to
further enhance the distribution of the shares, the Portfolio shall, on a
monthly basis in arrears, pay the Distributor a 12b-1 fee of 1/12 of 0.25% of
the aggregate average daily net assets of the
6
Portfolio. Out of said 12b-1 fee (and/or sales load), the Distributor shall
pay the distribution expenditures which expenditures shall include, but shall
not be limited to, the payment of compensation (including incentive
compensation such as continuing payments) to financial consultants, sales and
marketing personnel, broker-dealers, other financial institutions and other
organizations to obtain various distribution and shareholder related services
for the Portfolio. These services include, among others, processing new
shareholder account application, preparing and transmitting to the Fund's
Transfer Agent computer processable tapes of transactions by customers and
serving as a source of information to customers in answering their questions
concerning the Portfolio and their transactions with the Portfolio, expenses
for advertising, the preparation and distribution of sales literature and
other promotional activities on behalf of the Portfolio. The Portfolio shall
pay its proportionate share of the cost of preparing, printing and
distributing the Prospectuses and Statements of Additional Information to
existing investors, its proportionate share of the cost of (i) preparation,
filing and printing of any Registration Statements and Prospectuses required
to be filed by or under applicable federal, state or foreign law, (ii) the
preparation and mailing of annual and interim reports, Prospectuses and proxy
material to current shareholders, (iii) qualifications of Shares for sale
under the securities laws of such states or other jurisdiction as shall be
selected by the Portfolio and the Distributor in accordance with Section 5(c)
hereof and the costs and expenses payable to each such state or other
jurisdiction for continuing qualifications therein. The Distributor and/or
Investment Advisor shall pay for the printing and distribution of
Prospectuses and Statements of Additional Information to prospective
investors.
The Portfolio is not obligated to pay any distribution expenses in
excess of the distribution fees with respect to the Portfolio, pursuant to
this Section 8.(a). In addition, any expenses of distribution of the
Portfolio's shares accrued by the Distributor in any one fiscal year of the
Portfolio may not be paid from distribution fees received from the Portfolio
in subsequent fiscal years and also will not be used to pay any interest
expense, carrying charges or other financing costs or overhead of the
Distributor. "Overhead costs" include items of expense generally referred to
as overhead, including, without limitation, costs related to leases,
depreciation, salaries, payroll taxes, supplies and insurance. The 12b-1 fee
payable to Distributor may exceed actual expenses paid or incurred by
Distributor, the Investment Advisor or others.
(b) The Portfolio shall not bear the expense of the registration
or qualification of the Distributor as a dealer or a broker under federal,
state or other applicable law or the expenses of continuing such registration
or qualification.
9. INDEMNIFICATION.
(a) The Portfolio agrees with the Distributor, for the benefit of
the Distributor and each person, if any, who controls the Distributor within
the meaning of Section 15 of the Securities Act and each and all and any of
them, to indemnify and hold harmless the Distributor and any such controlling
person from and against any and all losses, claims, damages or liabilities,
joint or several (including reasonable legal fees and expenses) to which they
or any of them may become subject under the Securities Act or under any other
statute, at common law or otherwise, and to reimburse the Distributor and
such controlling persons, if any, for any legal or other expenses (including
the cost of any investigation and preparation) reasonably incurred by them in
connection with any litigation, whether or not
7
resulting in any liability, insofar as such losses, claims, damages,
liabilities or litigation arise out of, or are based upon, any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement or any Prospectus, filed with the SEC, or any
amendment thereof or supplement thereto, or which arise out of, or are based
upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading; PROVIDED, HOWEVER, that this indemnity agreement shall not apply
to amounts paid in settlement of any such litigation if such settlement is
effected without the consent of the Fund or to any such losses, claims,
damages, liabilities or litigation arising out of, or based upon, any untrue
statement or alleged untrue statement of a material fact contained in any
such Registration Statement or prospectus, or any amendment thereof of or
supplement thereof, or arising out of, or based upon, the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, which statement or
omission was made in reliance upon information furnished in writing to the
Fund by the Distributor for inclusion in any such Registration Statement or
Prospectus or any amendment thereof or supplement thereto. The Distributor
and each such controlling person shall, within thirty (30) days after the
complaint shall have been served upon the Distributor or such controlling
person in respect of which indemnity may be sought from the Portfolio on
account of its agreement contained in this paragraph, notify the Portfolio in
writing of the commencement thereof. The omission of the Distributor or such
controlling person so to notify the Portfolio of any such litigation shall
relieve the Portfolio from any liability which it may have to the Distributor or
such controlling person on account of the indemnity agreement contained in
this paragraph if such failure to timely notify the Portfolio has resulted in
substantial prejudice to the Portfoliio, but shall not relieve the Portfolio
from any liability which it may have to the Distributor or controlling person
otherwise than on account of the indemnity agreement contained in this
paragraph. In case any such litigation shall be brought against the
Distributor or any such controlling person and notice of the commencement
thereof shall have been timely given to the Portfolio, the Portfolio shall be
entitled to participate in (and, to the extent that it shall wish, to direct)
the defense thereof at its own expense, but such defense shall be conducted
by counsel of good standing and reasonably satisfactory to the Distributor or
such controlling person(s) or defendant(s) in the litigation. The indemnity
agreement of the Portfolio contained in this paragraph shall remain operative
and in full force and effect regardless of any investigation made by or on
behalf of the Distributor or any such controlling person, and shall survive
any delivery of shares of the Portfolio. The Portfolio agrees to notify the
Distributor promptly of the commencement of any litigation or proceeding
against it or any of it officers or directors of which it may be advised in
connection with the issue and sale of shares of the Portfolio.
(b) Anything herein to the contrary notwithstanding, the agreement in
subparagraph (a) of this Section, insofar as it constitutes a basis of
reimbursement by the Portfolio for liabilities (other than payment by the
Portfolio of expenses incurred or paid in the successful defense of any action,
suit or proceeding) arising under the Securities Act, shall not extend to the
extent of any interest therein of any person who is an underwriter or a partner
or controlling person of an underwriter within the meaning of Section 15 of the
Securities Act or who, at the date of this Agreement, is a Trustee of the Fund,
except to the extent that an interest of such character shall have been
determined by a court of appropriate
8
jurisdiction as not against public policy as expressed in the Securities Act.
Unless in the opinion of counsel for the Fund the matter has been adjudicated
by controlling precedent, the Portfolio, will, if a claim for such
reimbursement is asserted, submit to a court of appropriate jurisdiction the
question of whether or not such interest is against the public policy as
expressed in the Securities Act.
(c) The Distributor agrees to indemnify and hold harmless the
Portfolio and the Fund's Trustees and such officers as shall have signed any
Registration Statement filed with the Commission from and against any and all
losses, claims, damages, or liabilities, joint or several, to which the
Portfolio or such Trustees or officers may become subject under the
Securities Act, under any other statute, at common law or otherwise, and will
reimburse the Portfolio or such Trustees or officers for any legal or other
expenses (including the cost of any investigation and preparation) reasonably
incurred by it or them or any of them in connection with any litigation,
whether or not resulting in any liability, insofar as such losses, claims,
damages, liabilities, or litigation arise out of, or are based upon, any
untrue statement or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, which statement or omission was made by the Fund in reliance upon
information furnished in writing to the Fund by the Distributor for inclusion
in any Registration Statement or any Prospectus, or any amendment thereof or
supplement thereto or otherwise for distribution or publication. The
Distributor shall not be liable for amounts paid in settlement of any such
litigation if such settlement was effected without its consent. The
Portfolio and the Fund's Trustees and such officers or defendant(s), in any
such litigation, shall, within thirty (30) days after the complaint shall
have been served upon the Portfolio or any such Trustee or officer in respect
of which indemnity may be sought from the Distributor or account of its
agreement contained in this paragraph, notify the Distributor in writing of
the commencement thereof. The omission of the Portfolio or such Trustee or
officer so to notify the Distributor of any such litigation shall relieve the
Distributor from any liability which it may have to the Portfolio or such
Trustee or officer of liability which it may have to the Portfolio or such
Trustee or officer on account of the indemnity agreement contained in this
paragraph, but shall not relieve the Distributor from any liability which it
may have to the Portfolio or such Trustee or officer otherwise than on account
of the indemnity agreement contained in this paragraph. In case any such
litigation shall be brought against the Fund, Portfolio or any such Trustee or
officer and timely notice of the commencement thereof shall have been so given
to the Distributor, the Distributor shall be entitled to participate in (and,
to the extent it shall wish, to direct) the defense thereof at its own expense,
but such defense shall be conducted by counsel of good standing and satisfactory
to the Fund. The indemnity agreement of the Distributor contained in this
paragraph shall remain operative and in full force and effect regardless of
any investigation made by or on behalf of the Portfolio and shall survive any
delivery of shares of the Portfolio. The Portfolio agrees to notify the
Distributor promptly of the commencement of any litigation or proceeding
against it or any of its officers or the Fund's Trustees or against any such
controlling person of which it may be advised in connection with the issue
and sale of the Portfolio's shares.
(d) Notwithstanding any provision contained in this Agreement, no
party hereto and no person or persons in control of any party hereto shall be
protected against any liability to the Portfolio or its security holders to
which they would otherwise be subject by
9
reason of willful misfeasance, bad faith, or gross negligence, in the
performance of their duties, or by reason of their reckless disregard of their
obligations and duties under this Agreement.
(e) Except as expressly provided in subparagraphs (a) and (c)
hereof, the agreements herein set forth have been made and are made solely
for the benefit of the Fund, the Portfolio, the Distributor, and the persons
expressly provided for in subparagraphs (a) and (c), their respective heirs,
successor, personal representatives and assigns, and except as so provided,
nothing expressed or mentioned herein is intended or shall be construed to
give any person, firm or corporation, other than the Fund, the Portfolio, the
Distributor, and the persons expressly provided for in subparagraphs (a) and
(c), any legal or equitable right, remedy or claim under or in respect of
this Agreement or any representation, warranty or agreement herein contained.
Except as so provided, the terms "heirs, successors, personal
representatives and assigns" shall not include any purchaser of shares merely
because of such purchase.
10. DURATION, TERMINATION AND AMENDMENT OF THIS AGREEMENT.
This Agreement shall become effective on the date it shall be
approved by a vote of the Board of Trustees of the Fund and of a majority of
the disinterested Trustees, and shall, unless terminated as hereinafter
provided, continue in effect for a period of more than one (1) year from such
date so long as such continuance is specifically approved at least annually
by a vote of the Board of Trustees of the Fund and of a majority of the
disinterested Trustees or by vote of a majority of the outstanding voting
securities of the Class A shares of the Portfolio. This Agreement may be
terminated by the Portfolio at any time or by the Distributor on sixty (60)
days' written notice to the Portfolio. No provisions of this Agreement may
be changed, waived, discharged, or terminated orally, but only by an
instrument in writing signed by the party against which enforcement of the
change, waiver, discharge or termination is sought and approved by a majority
of the disinterested Trustees.
11. NOTICES.
Any notice or other communication required to be given pursuant to
this Agreement shall be deemed duly given if delivered or mailed by
registered mail, postage prepaid, to the Distributor at Xxx Xxxx Xxxxxxx,
Xxxxx Xxxxx, Xxxx, Xxxxxx 00000 or to the Portfolio at Xxx Xxxx Xxxxxxx,
Xxxxx Xxxxx, Xxxx, Xxxxxx 00000.
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12. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Nevada and any action arising out of a breach of this
Agreement shall be brought in the State or Federal Court in San Francisco,
California.
ATTEST: THE NAVELLIER MILLENNIUM FUNDS
By: /s/
------------------------ --------------------------------
Xxxxx Xxxxxx, Trustee
By: /s/
--------------------------------
Xxxx Xxxxxxx, Trustee
By: /s/
--------------------------------
Xxxxxxx Xxxxxxxxx, Trustee
By: /s/
--------------------------------
Xxxxx Xxxxxx, Trustee
By: /s/
--------------------------------
Xxxxx X. Xxxxxxxxx, Trustee
ATTEST: NAVELLIER SECURITIES CORP.
By: /s/
------------------------ --------------------------------
Xxxxx X. Xxxxxxxxx, President
11
