AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the
“Agreement”) is made as of This 20th day of
October, 2008, by and between THE NAVELLIER AGGRESSIVE MICRO CAP
PORTFOLIO (the “Portfolio”) OF THE NAVELLIER
PERFORMANCE FUNDS (the “Performance Funds”), a
Delaware business trust with its principal place of business at
Xxx Xxxx Xxxxxxx Xxxxxx, Xxxxx Xxxxx, Xxxx, Xxxxxx 00000, and
THE NAVELLIER FUNDAMENTAL ‘A’ PORTFOLIO (the
“Acquiring Fund”) of THE NAVELLIER PERFORMANCE FUNDS
(the “Performance Funds”), a Delaware business trust
with its principal place of business at Xxx Xxxx Xxxxxxx Xxxxxx,
Xxxxx Xxxxx, Xxxx, Xxxxxx 00000.
This Agreement is intended to be and is adopted as a plan of
reorganization and liquidation within the meaning of
Section 368(a) of the United States Internal Revenue Code
of 1986, as amended (the “Code”), with respect to the
proposed reorganization of the NAVELLIER AGGRESSIVE MICRO CAP
PORTFOLIO (the “Portfolio”), which portfolio is a
series of the Performance Funds, pursuant to which the Portfolio
will be merged into and become part of THE NAVELLIER FUNDAMENTAL
‘A’ PORTFOLIO (the “Acquiring Fund”) of the
Performance Funds (the “Reorganization”).
Specifically, this Agreement is intended to be and is adopted
for the purpose of providing for the Reorganization of the
Portfolio into the Acquiring Fund. The Reorganization will
consist of the transfer of all of the assets of the Portfolio to
the Acquiring Fund in exchange solely for (i) shares of
beneficial interest in the Acquiring Fund (the “Acquiring
Fund Shares”) and (ii) the assumption by the
Acquiring Fund of all valid liabilities of the Portfolio and the
distribution of the Acquiring Fund Shares to the
Shareholders of the Portfolio in complete liquidation of the
Portfolio, as provided herein, all upon the terms and conditions
hereinafter set forth in this Agreement.
WHEREAS, the Performance Funds is an open-end, registered
investment company of the management type and the Portfolio owns
securities which are assets of the character in which the
Acquiring Fund is permitted to invest;
WHEREAS, the Shareholders of the Portfolio have determined, with
respect to such Reorganization, that the exchange of all of the
assets of the Portfolio for Acquiring Fund shares and the
assumption of all valid liabilities of the Portfolio by the
Acquiring Fund is in the best interests of the Portfolio and its
Shareholders and that the interests of the existing Shareholders
of the Portfolio would not be diluted as a result of this
transaction; and
WHEREAS, the purpose of the Reorganization is to combine the
assets of the Acquiring Fund with those of the Portfolio in an
attempt to achieve greater operating economies and to retain
Navellier & Associates, Inc. as the investment advisor
to manage the assets of both the Portfolio and the Acquiring
Fund;
NOW, THEREFORE, in consideration of the premises and of the
covenants and agreements hereinafter set forth, the parties
hereto covenant and agree, with respect to the Reorganization,
as follows:
| 1. | THE TRANSFER OF ASSETS OF THE PORTFOLIO TO THE ACQUIRING FUND IN EXCHANGE FOR THE ACQUIRING FUND SHARES, THE ASSUMPTION OF ALL VALID LIABILITIES OF THE PORTFOLIO, AND THE LIQUIDATION OF THE PORTFOLIO |
1.1 For the Reorganization, the closing shall take place as
provided for in paragraph 3.1 (“Closing”) and the
provisions of paragraphs 1 through 8 of this Agreement
shall apply. At the Closing, the Portfolio agrees to transfer
all of its assets, as set forth in paragraph 1.2, to the
Acquiring Fund, and the Acquiring Fund agrees in exchange
therefor: (1) to deliver to the Portfolio the number of
Acquiring Fund Shares, including fractional Acquiring
Fund Shares, determined by dividing the value of the
Portfolio’s net assets computed in the manner and as of the
time and date set forth in paragraph 2.1 by the net asset
value of one Acquiring Fund Share computed in the manner
and as of the time and date set forth in paragraph 2.2; and
(ii) to assume all valid liabilities of the Portfolio, as
set forth in paragraph 1.3.
1.2 The assets of the Portfolio to be acquired by the
Acquiring Fund shall consist of all property, including, without
limitation, all cash, securities, interests, and dividends or
interest receivable which are owned by the Portfolio and any
deferred or prepaid expenses shown as assets on the books of the
Portfolio on the closing date provided in paragraph 3.1
(the “Closing Date”).
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1.3 The Portfolio will endeavor to discharge all of its
known valid liabilities and obligations prior to the Closing
Date. The Acquiring Fund shall assume all valid liabilities,
expenses, costs, charges and reserves reflected on an unaudited
statement of assets and liabilities of the Portfolio prepared by
the administrator of the Acquiring Fund and the Portfolio, as of
the Valuation Date (as defined in paragraph 2.1), in
accordance with generally accepted accounting principles
consistently applied from the prior audited period.
1.4 Immediately after the transfer of assets provided for
in paragraph 1.1, the Portfolio will distribute pro rata to its
Shareholders of record, determined as of immediately after the
close of business on the Closing Date (the “Portfolio
Shareholders”), the Acquiring Fund Shares received by
the Portfolio pursuant to paragraph 1.1 and will completely
liquidate. Such distribution and liquidation will be
accomplished by the transfer of the Acquiring Fund Shares
then credited to the account of the Portfolio on the books of
the Acquiring Fund to the share records of the Acquiring Fund in
the names of the Portfolio Shareholders and representing the
respective pro rata number of the Acquiring Fund Shares due
such Shareholders. All issued and outstanding shares of the
Portfolio will simultaneously be canceled on the books of the
Portfolio. The Acquiring Fund shall not issue certificates
representing the Acquiring Fund Shares in connection with
such exchange. Ownership of Acquiring Fund Shares will be
shown on the books of the Acquiring Fund’s transfer agent.
| 2. | VALUATION |
2.1 The value of the Portfolio’s assets to be acquired
by the Acquiring Fund hereunder shall be the net asset value of
such assets computed as of immediately after the close of
business of the New York Stock Exchange on the Closing Date
(such time and date being hereinafter called the “Valuation
Date”), using the valuation procedures for computing net
asset value set forth in the Portfolio’s then-current
prospectus or statement of additional information.
2.2 The net asset value of an Acquiring Fund Share
shall be the net asset value per share computed as of
immediately after the close of business of the New York Stock
Exchange on the Valuation Date, using the valuation procedures
for computing net asset value set forth in the Performance
Funds’ then-current prospectus or statement of additional
information.
2.3 The number of the Acquiring Fund Shares to be
issued (including fractional shares, if any) in exchange for the
Portfolio’s assets shall be determined by dividing the
value of the net assets of the Portfolio determined using the
same valuation procedures referred to in paragraph 2.1 by
the net asset value of an Acquiring Fund Share determined
in accordance with paragraph 2.2.
2.4 All computations of value for the Performance Funds,
the Portfolio and the Acquiring Fund shall be made by
X.X. Xxxxxx, the transfer agent.
| 3. | CLOSING AND CLOSING DATE |
3.1 The Closing for the Reorganization shall be
October 20, 2008 or such other date as the parties may
agree to in writing. All acts taking place at the Closing shall
be deemed to take place simultaneously as of immediately after
the close of business on the Closing Date unless otherwise
agreed to by the parties. The close of business on the Closing
Date shall be as of 4:00 p.m., New York Time. The Closing
shall be held at the offices of the Performance Funds, Xxx Xxxx
Xxxxxxx Xxxxxx, Xxxxx Xxxxx, Xxxx, Xxxxxx 00000, or at such
other time
and/or place
as the parties may agree.
3.2 X.X. Xxxxxx, Cincinnati, Ohio, as custodian for the
Portfolio (the “Custodian”), shall deliver at the
Closing a certificate of an authorized officer stating that:
(i) the Portfolio’s portfolio securities, cash, and
any other assets shall have been delivered in proper form to the
Acquiring Fund within two business days prior to or on the
Closing Date; and (ii) all necessary taxes, including all
applicable Federal and state stock transfer stamps, if any,
shall have been paid, or provision for payment shall have been
made, in conjunction with the delivery of the Portfolio’s
portfolio securities.
3.3 X.X. Xxxxxx (the “Transfer Agent”), on behalf
of the Acquiring Fund and the Portfolio, shall deliver at the
Closing a certificate of an authorized officer stating that
their records contain the names and addresses of the Portfolio
Shareholders and the number and percentage ownership of
outstanding shares owned by each such shareholder immediately
prior to the Closing. The Acquiring Fund shall issue and deliver
a confirmation evidencing
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the Acquiring Fund Shares to be credited on the Closing
Date to the Secretary of the Portfolio or provide evidence
satisfactory to the Portfolio that such Acquiring
Fund Shares have been credited to the Portfolio’s
account on the books of the Acquiring Fund. At the Closing, each
party shall deliver to the other such bills of sales, checks,
assignments, share certificates, if any, receipts or other
documents as such other party or its counsel may reasonably
request.
| 4. | REPRESENTATIONS AND WARRANTIES |
4.1 The Portfolio represents and warrants to the
Performance Funds and the Acquiring Fund as follows:
(a) The Portfolio is a business trust duly organized,
validly existing, and in good standing under the laws of the
State of Delaware;
(b) The Portfolio is a registered investment company
classified as a management company of the open-end type, and its
registration with the Securities and Exchange Commission (the
“Commission”), as an investment company under the
Investment Company Act of 1940, as amended (the “1940
Act”), and the registration of its shares, under the
Securities Act of 1933, as amended (the
“1933 Act”) are in full force and effect;
(c) The Portfolio is not in, and the execution, delivery
and performance of this Agreement will not result in, a material
violation of the Performance Funds’ Declaration of Trust or
By-Laws or of any agreement, indenture, instrument, contract,
lease or other undertaking to which the Portfolio is a party or
by which the Portfolio is bound;
(d) The Portfolio has no material contracts or other
commitments (other than this Agreement) which will be terminated
with liability to the Portfolio prior to the Closing Date;
(e) Except as otherwise disclosed in writing to and
accepted by the Performance Funds or the Acquiring Fund, no
material litigation or administrative proceeding or
investigation of or before any court or governmental body is
presently pending or to their knowledge threatened against the
Portfolio or any of its properties or assets which, if adversely
determined, would materially and adversely affect the
Portfolio’s financial condition or the conduct of the
Portfolio’s business. The Portfolio knows of no facts which
might form the basis for the institution of such proceedings and
the Portfolio is not a party to or subject to the provisions of
any order, decree or judgment of any court or governmental body
which materially and adversely affects the business or the
ability the Portfolio to consummate the transactions herein
contemplated;
(f) The Statement of Assets and Liabilities of the
Portfolio at December 31, 2007 has been audited by Xxxx,
Xxxxxx & Xxxxx LLP, independent registered public
accounting firm, and is in accordance with generally accepted
accounting principles consistently applied, and such statement
(a copy of which has been furnished to the Performance Funds)
fairly reflects the financial condition of the Portfolio as of
such date, and there are no known contingent liabilities of the
Portfolio as of such date not disclosed therein;
(g) Since December 31, 2007, there has not been any
material adverse change in the Portfolio’s financial
condition, assets, liabilities or business other than changes
occurring in the ordinary course of business, or any incurrence
by the Portfolio of indebtedness maturing more than one year
from the date such indebtedness was incurred, except as
otherwise disclosed to and accepted by the Performance Funds.
For the purposes of this subparagraph (g), a decline in net
asset value per share of the Portfolio, the discharge of
Portfolio liabilities, or the redemption of Portfolio shares by
Portfolio Shareholders shall not constitute a material adverse
change;
(h) At the Closing Date, all material Federal and other tax
returns and reports of the Portfolio required by law to have
been filed by such date or due after request for extension, if
any, shall have been filed and are or will be correct, and all
Federal and other taxes shown as due or required to be shown as
due on said returns and reports shall have been paid or
provision shall have been made for the payment thereof, and to
the best knowledge of the Portfolio, no such return is currently
under audit and no assessment has been asserted with respect to
such returns;
(i) For each taxable year of its operation, the Portfolio
has met the requirements of Subchapter M of the Code for
qualification as a regulated investment company and has elected
to be treated as such;
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(j) All issued and outstanding shares of the Portfolio are,
and at the Closing Date will be, duly and validly issued and
outstanding, fully paid and non-assessable by the Portfolio. All
of the issued and outstanding shares of the Portfolio will, at
the time of closing, be held by the persons and in the amounts
set forth in the records of the Transfer Agent, on behalf of the
Portfolio as provided in paragraph 3.3. The Portfolio does
not have outstanding any options, warrants or other rights to
subscribe for or to purchase any of the Portfolio shares, nor is
there outstanding any security convertible into any of the
Portfolio shares;
(k) At the Closing Date, the Portfolio will have good and
marketable title to the Portfolio’s assets to be
transferred to the Acquiring Fund pursuant to paragraph 1.2
and full right, power and authority to sell, assign, transfer
and deliver such assets hereunder and, upon delivery and payment
for such assets, the Acquiring Fund will acquire good and
marketable title thereto, subject to any restrictions as might
arise under the 1933 Act, other than as disclosed to the
Acquiring Fund;
(l) The execution, delivery and performance of this
Agreement will have been duly authorized prior to the Closing
Date by all necessary action on the part of the Portfolio’s
Trustees and, subject to the approval of the Portfolio
Shareholders, this Agreement will constitute a valid and binding
obligation of the Portfolio, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or
affecting creditors’ rights and to general equity
principles;
(m) The information to be furnished by the Portfolio for
use in registration statements, proxy materials and other
documents which may be necessary in connection with the
transactions contemplated hereby shall be accurate and complete
in all material respects and shall comply in all material
respects with Federal securities and other laws and regulations
thereunder applicable thereto; and
(n) The proxy statement of the Portfolio (the “Proxy
Statement”) to be included in the Registration Statement
referred to in paragraph 5.6 (other than information
therein that relates to the Performance Funds and the Acquiring
Fund) will, on the effective date of the Registration Statement
and on the Closing Date, not contain any untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances under which such statements were
made, not materially misleading.
4.2 The Performance Funds, on its own behalf and on behalf
of the Acquiring Fund, represents and warrants to the Portfolio
as follows:
(a) The Performance Funds is a business trust duly
organized, validly existing and in good standing under the laws
of the State of Delaware;
(b) The Performance Funds is a registered investment
company classified as a management company of the open-end type,
and its registration with the Commission, as an investment
company under the 1940 Act, and the registration of its shares,
under the 1933 Act, are in full force and effect;
(c) The current prospectus and statement of additional
information of the Performance Funds conform in all material
respects to the applicable requirements of the 1933 Act and
the 1940 Act and the rules and regulations of the Commission
thereunder and do not include any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not materially
misleading;
(d) At the Closing Date, the Acquiring Fund will have good
and marketable title to the Acquiring Fund’s assets;
(e) Neither the Performance Funds nor the Acquiring Fund is
in, and the execution, delivery and performance of this
Agreement will not result in, a material violation of the
Performance Funds’ Declaration of Trust or By-Laws or of
any agreement, indenture, instrument, contract, lease or other
undertaking to which the Performance Funds or the Acquiring Fund
is a party or by which the Performance Funds or the Acquiring
Fund are bound;
(f) No material litigation or administrative proceeding or
investigation of or before any court or governmental body is
presently pending or threatened against the Performance Funds or
the Acquiring Fund
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or any of their properties or assets, except as previously
disclosed in writing to the Portfolio. Neither the Performance
Funds nor the Acquiring Fund knows of any facts which might form
the basis for the institution of such proceedings and neither
the Performance Funds nor the Acquiring Fund is a party to or
subject to the provisions of any order, decree or judgment of
any court or governmental body which materially and adversely
affects the business or the ability of the Performance Funds or
the Acquiring Fund to consummate the transactions contemplated
herein;
(g) The Statement of Assets and Liabilities of the
Acquiring Fund at December 31, 2007, audited by Xxxx,
Xxxxxx & Xxxxx LLP, independent registered public
accounting firm, and a copy of which has been furnished to the
Portfolio, fairly and accurately reflects the financial
condition of the Acquiring Fund as of such date in accordance
with generally accepted accounting principles consistently
applied;
(h) Since December 31, 2007, there has not been any
material adverse change in the Acquiring Fund’s financial
condition, assets, liabilities or business other than changes
occurring in the ordinary course of business, or any incurrence
by the Acquiring Fund of indebtedness maturing more than one
year from the date such indebtedness was incurred. For the
purposes of this subparagraph (h), a decline in net asset value
per share of the Acquiring Fund shares, the discharge of
Acquiring Fund liabilities or the redemption of Acquiring Fund
shares by Acquiring Fund Shareholders, shall not constitute
a material adverse change;
(i) At the Closing Date all material Federal and other tax
returns and reports of the Performance Funds and the Acquiring
Fund required by law to have been filed by such date or due
after request for extension, if any, shall have been filed and
are or will be correct, and all Federal and other taxes shown as
due or required to be shown as due on said returns and reports
shall have been paid or provision shall have been made for the
payment thereof, and, to the best knowledge of the Performance
Funds and the Acquiring Fund, no such return is currently under
audit and no assessment has been asserted with respect to such
returns;
(j) For each taxable year of its operation, the Acquiring
Fund has met the requirements of Subchapter M of the Code for
qualification as a regulated investment company and has elected
to be treated as such;
(k) All issued and outstanding Acquiring Fund Shares
are, and at the Closing Date will be, duly and validly issued
and outstanding, fully paid and non-assessable by the Acquiring
Fund. The Acquiring Fund does not have outstanding any options,
warrants or other rights to subscribe for or to purchase any
Acquiring Fund Shares, nor is there outstanding any
security convertible into any Acquiring Fund Shares;
(l) The execution, delivery and performance of this
Agreement will have been fully authorized prior to the Closing
Date by all necessary action, if any, on the part of the
Trustees of the Performance Funds and this Agreement will
constitute a valid and binding obligation of the Acquiring Fund
enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization,
moratorium and other laws relating to or affecting
creditors’ rights, and to general equity principles;
(m) The Acquiring Fund Shares to be issued and
delivered (transferred on the Acquiring Fund’s books) to
the Portfolio for the account of the Portfolio Shareholders,
pursuant to the terms of this Agreement, will, at the Closing
Date, have been duly authorized and, when so issued and
delivered, will be duly and validly issued Acquiring Fund
Shares, and will be fully paid and non-assessable by the
Acquiring Fund;
(n) The information to be furnished by the Acquiring Fund
for use in registration statements, proxy materials and other
documents which may be necessary in connection with the
transactions contemplated hereby shall be accurate and complete
in all material respects and shall comply in all material
respects with Federal securities and other laws and regulations
applicable thereto;
(o) The Proxy Statement to be included in the Registration
Statement (only insofar as it relates to the Performance Funds
and the Acquiring Fund) will, on the effective date of the
Registration Statement and on the Closing Date, not contain any
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statement therein, in light of the circumstances under which
such statements were made, not materially misleading; and
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(p) The Performance Funds and the Acquiring Fund each
agrees to use all reasonable efforts to obtain the approvals and
authorizations required by the 1933 Act, the 1940 Act and
such of the state blue sky or securities laws as may be
necessary in order to continue their operations after the
Closing Date.
| 5. | COVENANTS OF THE ACQUIRING FUND AND THE PORTFOLIO |
The following covenants of the Acquiring Fund and the Portfolio,
as applicable, are made, respectively, by the Performance Funds
and the Portfolio:
5.1 The Acquiring Fund and the Portfolio each will operate
its business in the ordinary course between the date hereof and
the Closing Date, it being understood that such ordinary course
of business will include the declaration and payment of
customary dividends and distributions and any other distribution
that may be advisable.
5.2 The Portfolio will call a meeting of the Portfolio
Shareholders to consider and act upon this Agreement and to take
all other action necessary to obtain approval of the
transactions contemplated herein.
5.3 The Portfolio covenants that the Acquiring
Fund Shares to be issued hereunder are not being acquired
for the purpose of making any distribution thereof other than in
accordance with the terms of this Reorganization Agreement.
5.4 The Portfolio will assist the Acquiring Fund in
obtaining such information as the Acquiring Fund reasonably
requests concerning the beneficial ownership of the shares of
the Portfolio.
5.5 Subject to the provisions of this Agreement, the
Acquiring Fund and the Portfolio will each take, or cause to be
taken, all actions and do, or cause to be done, all things
reasonably necessary, proper or advisable to consummate and make
effective the transactions contemplated by this Agreement.
5.6 The Portfolio will provide the Acquiring Fund with
information reasonably necessary for the preparation of a
prospectus (the “Prospectus”) which will include the
Proxy Statement referred to in paragraph 4.1(n), all to be
included in a Registration Statement on
Form N-14
of the Performance Funds (the “Registration
Statement”), in compliance with the 1933 Act, the
Securities Exchange Act of 1934, as amended (the
“1934 Act”), and the 1940 Act, in connection with
the meeting of the Portfolio Shareholders to consider approval
of this Agreement and the transactions contemplated herein (the
“Meeting”).
| 6. | CONDITIONS PRECEDENT TO OBLIGATIONS OF THE PORTFOLIO |
The obligations of the Portfolio to consummate the transactions
provided for herein shall be subject, at its election, to the
performance by the Performance Funds and the Acquiring Fund of
all the obligations to be performed by the Performance Funds and
the Acquiring Fund hereunder on or before the Closing Date and,
in addition thereto, to the following further conditions:
6.1 All representations and warranties of the Performance
Funds and the Acquiring Fund contained in this Agreement shall
be true and correct in all material respects as of the date
hereof and, except as they may be affected by the transactions
contemplated by this Agreement, as of the Closing Date with the
same force and effect as if made on and as of the Closing
Date; and
6.2 The Performance Funds shall have delivered to the
Portfolio, on the Closing Date, a certificate executed in the
Performance Funds’ name by the Performance Funds’
President and Treasurer, in a form reasonably satisfactory to
the Portfolio and dated as of the Closing Date, to the effect
that the representations and warranties of the Performance Funds
and the Acquiring Fund made in this Agreement are true and
correct at and as of the Closing Date, except as these
representations and warranties may be affected by the
transactions contemplated by this Agreement and as to such other
matters as the Performance Funds shall reasonably request.
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| 7. | CONDITIONS PRECEDENT TO OBLIGATIONS OF THE PERFORMANCE FUNDS AND THE ACQUIRING FUND |
The obligations of the Performance Funds and the Acquiring Fund
to complete the transactions provided for herein shall be
subject, at their election, to the performance by the Portfolio
of all of the obligations to be performed by the Portfolio
hereunder on or before the Closing Date and, in addition
thereto, to the following conditions:
7.1 All representations and warranties of the Portfolio
contained in this Agreement shall be true and correct in all
material respects as of the date hereof and, except as these
representations and warranties may be affected by the
transactions contemplated by this Agreement, as of the Closing
Date, with the same force and effect as if made on and as of the
Closing Date;
7.2 The Portfolio shall have delivered to the Performance
Funds a statement of the Portfolio’s assets and
liabilities, as of the Closing Date, certified by the Treasurer
of the Series Fund; and
7.3 The Portfolio shall have delivered to the Performance
Funds, on the Closing Date, a certificate executed in the
Portfolio’s name by the Portfolio’s President and
Treasurer, in form and substance satisfactory to the Performance
Funds and dated as of the Closing Date, to the effect that the
representations and warranties of the Portfolio, with respect to
the Portfolio made in this Agreement are true are correct at and
as of the Closing Date, except as these representations and
warranties may be affected by the transactions contemplated by
this Agreement and as to such other matters as the Performance
Funds shall reasonably request.
| 8. | FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND AND THE PORTFOLIO |
If any of the conditions set forth below do not exist on or
before the Closing Date, with respect to the Portfolio or the
Acquiring Fund, then the other party to this Agreement shall, at
its option, not be required to consummate the transactions
contemplated by this Agreement:
8.1 The Agreement and the transactions contemplated herein
shall have been approved by the requisite vote of the holders of
the outstanding shares of beneficial interest of the Portfolio
in accordance with the provisions of the Performance Funds’
Declaration of Trust and By-Laws and copies of the resolutions
evidencing such approval shall have been delivered to the
Performance Funds. Notwithstanding anything herein to the
contrary, neither the Performance Funds or the Acquiring Fund or
the Portfolio may waive the conditions set forth in this
paragraph 8.1;
8.2 All consents of other parties and all other consents,
orders and permits of Federal, state and local regulatory
authorities deemed necessary by the Performance Funds or the
Portfolio to permit consummation, in all material respects, of
the transactions contemplated hereby shall have been obtained,
except where failure to obtain any such consent, order or permit
would not involve a risk of a material adverse effect on the
assets or properties of the Performance Funds or the Acquiring
Fund or the Portfolio, provided that either party hereto may,
for itself, waive any of such conditions;
8.3 The Registration Statement shall have become effective
under the 1933 Act and no stop orders suspending the
effectiveness thereof shall have been issued; and
8.4 The parties shall have received the legal opinion of
Xxxxxx Xxxxxxxxxx, attorney at law, addressed to the Performance
Funds and the Portfolio, substantially to the effect that the
transactions contemplated by this Agreement shall constitute a
tax-free reorganization for Federal income tax purposes.
| 9. | BROKERAGE FEES AND EXPENSES |
9.1 The Performance Funds and the Portfolio each represents
and warrants to the other that there are no brokers or finders
entitled to receive any payments in connection with the
transactions provided for herein.
9.2 Navellier & Associates, Inc. will bear the
aggregate expenses and costs of its solicitation of this Proxy
Solicitation regarding the Reorganization.
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| 10. | ENTIRE AGREEMENT; SURVIVAL OF WARRANTIES |
10.1 The Performance Funds and the Portfolio agree that
neither party has made any representation, warranty or covenant
not set forth herein and that this Agreement constitutes the
entire agreement between the parties.
10.2 The representations, warranties and covenants
contained in this Agreement, or in any document delivered
pursuant hereto or in connection herewith, shall survive the
consummation of the transactions contemplated hereunder.
| 11. | TERMINATION |
This Agreement and the transactions contemplated hereby may be
terminated and abandoned by either party by resolution of the
party’s Board of Trustees and resolution passed by the
requisite number of Shareholders of that party at any time prior
to the Closing Date if circumstances should develop that make
proceeding with the Agreement inadvisable.
| 12. | WAIVER |
The Performance Funds and the Portfolio, by mutual consent of
their respective Board of Trustees, may waive any condition to
their respective obligations hereunder, except as provided
herein.
13. AMENDMENTS
This Agreement may be amended, modified or supplemented in such
manner as may be mutually agreed upon in writing by the
authorized officers of the Performance Funds and the Portfolio;
provided, however, that following the meeting of the Portfolio
Shareholders called by the Portfolio pursuant to
paragraph 5.2 of this Agreement, no such amendment may have
the effect of changing the provisions for determining the number
of the Acquiring Fund Shares to be issued to the Portfolio
Shareholders under this Agreement to the detriment of such
Shareholders without their further approval.
14. NOTICES
Any notice, report, statement or demand required or permitted by
any provisions of this Agreement shall be in writing and shall
be given by prepaid telegraph, telecopy or certified mail
addressed to the Performance Funds at Xxx Xxxx Xxxxxxx Xxxxxx,
Xxxxx Xxxxx, Xxxx, Xxxxxx 00000 or to the Portfolio at Xxx Xxxx
Xxxxxxx Xxxxxx, Xxxxx Xxxxx, Xxxx, Xxxxxx 00000.
| 15. | HEADINGS; COUNTERPARTS; GOVERNING LAW; ASSIGNMENT; LIMITATION OF LIABILITY |
15.1 The Article and paragraph headings contained in this
Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement.
15.2 This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original.
15.3 This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
15.4 This Agreement shall bind and inure to the benefit of
the parties hereto and their respective successors and assigns,
but no assignment or transfer hereof or of any rights or
obligations hereunder shall be made by any party without the
written consent of the other party. Nothing herein expressed or
implied is intended or shall be construed to confer upon or to
give any person, firm or corporation, other than the parties
hereto and their respective successors and assigns, any rights
or remedies under or by reason of this Agreement.
C-38
15.5 It is expressly agreed that the obligations of the
Portfolio hereunder shall not be binding upon any of the
Trustees, Shareholders, nominees, officers, agents or employees
of the Performance Funds personally, but shall bind only the
corporate property of the Performance Funds and the Portfolio,
as provided in the Declaration of Trust of the Performance
Funds. The execution and delivery by such officers of the
Performance Funds shall not be deemed to have been made by any
of them individually or to impose any liability on any of them
personally, but shall bind only the trust property of the
Performance Funds and the Portfolio as provided in the
Declaration of Trust of the Performance Funds.
15.6 It is expressly agreed that the obligations of the
Performance Funds and the Acquiring Fund hereunder shall not be
binding upon any of the Trustees, Shareholders, nominees,
officers, agents or employees of the Performance Funds
personally, but shall bind only the trust property of the
Performance Funds and the Acquiring Fund, as provided in the
Performance Funds’ Declaration of Trust. The execution and
delivery by such officers of the Performance Funds shall not be
deemed to have been made by any of them individually or to
impose any liability on any of them personally, but shall bind
only the trust property of the Performance Funds and the
Acquiring Fund, as provided in the Performance Funds’
Declaration of Trust.
C-39
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed by its President and attested by its
Secretary.
|
Attest:
|
THE NAVELLIER PERFORMANCE FUNDS | |
|
By: /s/ Xxxxx Xxxxxx
Secretary
|
By: /s/ Xxxxx Xxxxxxxxx President |
|
|
Attest:
|
THE NAVELLIER FUNDAMENTAL ‘A’ PORTFOLIO | |
|
BY: /s/ Xxxxx Xxxxxx
Secretary
|
By: /s/ Xxxxx Xxxxxxxxx
|
|
|
Attest:
|
THE NAVELLIER AGGRESSIVE MICRO CAP PORTFOLIO | |
|
BY: /s/ Xxxxxx Xxxxxxxxxx
|
By: /s/ Xxxxx Xxxxxxxxx
|
C-40
