EXHIBIT (e)(1)
DISTRIBUTION AGREEMENT
AGREEMENT, made the 26th day of August, 1999, as amended May 25, 2000
and further amended February 28, 2002 by and between The Navellier Top 20
Portfolio, The Navellier International Growth Portfolio, The Navellier Large Cap
Growth Portfolio, The Navellier All Cap Growth Portfolio, The Navellier Mid Cap
Growth Portfolio and The Navellier Money Market Portfolio (the "Portfolios") 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").
WITNESSETH
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 Portfolios, 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 Portfolios' 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 Portfolios, 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 Portfolios 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 Portfolios. 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 Portfolios hereunder shall be made in the manner set
forth in Section 3(g).
(e) The net asset value of the shares of the Portfolios 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. Each 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 each Portfolio may be
tendered for redemption at any time, and each 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 each Portfolio
hereunder shall be made in the manner set forth below.
Each 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 each 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) Each 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. Each 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. Each 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) Each 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
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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 each 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 a 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 each 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, each 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 each
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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 each 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. Each 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.
Each Portfolio is not obligated to pay any distribution expenses
in excess of the distribution fees with respect to each Portfolio, pursuant to
this Section 8.(a). In addition, any expenses of distribution of each
Portfolio's shares accrued by the Distributor in any one fiscal year of each
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) Each 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) Each 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
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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 Portfolio, 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 each 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. Each
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 a 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, each 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 each
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 a 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 each 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. Each
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, a 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. Each 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 a 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 Portfolios, 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 Portfolios, 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 each Portfolio. This Agreement may be terminated by a 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
------------------------ -----------------------------------------
Xxxxx Xxxxxx, Trustee
By: /s/ XXXX XXXXXXX
-----------------------------------------
Xxxx Xxxxxxx, Trustee
By: /s/ XXXXXXX XXXXXXXXX
-----------------------------------------
Xxxxxxx Xxxxxxxxx, Trustee
By: /s/ XXXXX XXXXXX
-----------------------------------------
Xxxxx Xxxxxx, Trustee
By: /s/ XXXXX X. XXXXXXXXX
-----------------------------------------
Xxxxx X. Xxxxxxxxx, Trustee
ATTEST: NAVELLIER SECURITIES CORP.
By: /s/ XXXXX X. XXXXXXXXX
------------------------ -----------------------------------------
Xxxxx X. Xxxxxxxxx, President
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