EXHIBIT 5.6
THE NAVELLIER PERFORMANCE FUNDS
INVESTMENT ADVISORY AGREEMENT
FOR
THE NAVELLIER INTERNATIONAL EQUITY PORTFOLIO
AGREEMENT made as of the 27th day of April, 1998, by and between The
Navellier International Equity Portfolio ("Portfolio") of THE NAVELLIER
PERFORMANCE FUNDS, a business trust organized under the laws of the State of
Delaware (the "Fund"), and NAVELLIER MANAGEMENT, INC., a Delaware corporation
(the "Adviser").
WHEREAS, the Fund intends to engage in business as an open-end management
investment company and is being registered as such under the Investment Company
Act of 1940, as amended (the "Investment Company Act"); and
WHEREAS, the Fund has a portfolio designated as the "Navellier
International Equity Portfolio" ("Portfolio"); and
WHEREAS, the Adviser is being registered as an investment adviser under the
Investment Advisers Act of 1940, and engages in the business of acting as
investment adviser with an emphasis on over the counter stocks; and
WHEREAS, the Portfolio desires to retain the Adviser as investment adviser
to furnish advisory and portfolio management services to the Portfolio;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafter contained, the Portfolio and the Adviser agree as follows:
1. DUTIES AS ADVISER. The Portfolio hereby appoints the Adviser to act
as the investment adviser to the Portfolio and, subject to the supervision of
the Board of Trustees of the Portfolio, to provide investment advisory services
to the Portfolio as hereinafter set forth: (i) to obtain and evaluate such
information and advice relating to the economy, securities markets, and
securities as it deems necessary or useful to discharge its duties hereunder;
(ii) to continuously manage the assets of the Portfolio in a manner consistent
with applicable law and the investment objectives and policies set forth in the
most current prospectus and statement of additional information of the Fund
under the Securities Act of 1933 (the "Prospectus"); (iii) to determine which
issuers will be deemed "Qualified Issuers" (as defined in the Prospectus);
(iv) to determine the timing of purchases, sales, and dispositions of
securities; (v) to take such further action in its sole discretion (but always
in compliance with applicable law and the Prospectus) without obligation to give
prior notice to the Board of Trustees of the Portfolio, or the Custodian,
including the placing of purchase and sale orders on behalf of the Portfolio as
it shall deem necessary and appropriate; (vi) to furnish to or place at the
disposal of the Portfolio such of the information, evaluations, analyses, and
opinions formulated or obtained by it in the discharge of its duties as the
Portfolio may, from time to time, reasonably request; (vii) to take such actions
necessary or appropriate to carry out the decisions of the Portfolio's Board of
Trustees; (viii) to make decisions for the
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Portfolio as to the manner in which voting rights, rights to consent to trust
action, and any other rights pertaining to how the Portfolio's securities shall
be exercised ("Portfolio Voting Rights"). The Portfolio has directed the
Custodian, and Custodian as agreed, to act in accordance with the instructions
of the Adviser. The Adviser shall at no time have custody of or physical
control over the investment account assets or securities, and the Adviser shall
not be liable for any act or omission of the Custodian. The Adviser shall
maintain records required under the Investment Advisers Act of 1940 ("Advisers
Act") and shall make them available to the Portfolio or its designees for review
or inspection upon demand and at the Adviser's expense.
2. ALLOCATION OF CHARGES AND EXPENSES. The Adviser shall bear the cost
of rendering the investment advisory services to be performed by it under this
Agreement and shall, at its expense, maintain such staff and employ or retain
personnel and consult with other persons as it shall determine necessary.
Without limiting the generality of the foregoing, the staff and personnel of the
Adviser shall be deemed to include persons employed or otherwise retained by the
Adviser to furnish statistical and other factual data, advice regarding economic
factors and trends, information with respect to technical and scientific
developments, and such other information, advice, and assistance as the Adviser
may deem appropriate. The Adviser shall, without expense to the Portfolio,
furnish the services of such members of the Adviser's organization as may be
duly elected to be officers of the Portfolio, subject to their individual
consent to serve and to any limitations imposed by law.
The Portfolio will pay or cause to be paid all other expenses of the
Portfolio (except for the expenses to be paid by the Portfolio's Distributor),
including, without limitation, the following: (i) services rendered by the
Custodian and the Transfer Agent, (ii) fees, voluntary assessments, and other
expenses incurred in connection with membership in investment company
organizations, (iii) cost of stock certificates, reports, proxy materials and
notices to shareholders, and other like miscellaneous expenses, (iv) brokerage
commissions and other brokerage expenses, (v) taxes (including any income or
franchise taxes), and any fees payable to federal, state, and other governmental
agencies, (vi) fees and salaries payable to the Trustees, officers, and advisory
board members of the Portfolio, if any, (vii) auditing the Fund's books and
accounts, (viii) the cost of bookkeeping and accounting services, (ix) any and
all Portfolio legal expenses, (x) costs of mailing and tabulating proxies and
costs of shareholders' and Trustees' meetings, (xi) the cost of investment
company literature and other publications provided by the Portfolio to its
Trustees and officers, (xii) costs of any liability, uncollectible items of
deposit and other insurance or fidelity bonds, (xiii) any extraordinary expenses
(including fees and disbursements of counsel) incurred by the Portfolio,
(xiv) costs of printing and mailing monthly statements and confirmations,
(xv) expense of organizing the Portfolio, (xvi) filing fees and expenses
relating to the registration and qualification of the Portfolio's shares under
federal and/or state securities laws and maintaining such registrations and
qualifications and (vii) other expenses properly payable by the Portfolio.
3. COMPENSATION OF THE ADVISER. For the services to be rendered by the
Adviser hereunder, the Portfolio shall pay to the Adviser, on a monthly basis,
an annual fee of one percent (1.00%) (the "Management Fee") of the Portfolio's
average daily net assets.
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Payment of the Adviser's compensation for the preceding month shall be made as
promptly as possible after the last day of each such month. The compensation
for the period from the effective date hereof to the next succeeding last day of
the month shall be prorated according to the proportion which such period bears
to the full month ending on such date, and provided further that, upon any
termination of this Agreement before the end of the month, such compensation for
the period from the end of the last month ending prior to such termination shall
be prorated according to the proportion which such period bears to a full month,
and shall be payable upon the date of termination. If the annual operating
expenses borne by the Fund relating to any Portfolio, including amounts payable
to the Adviser hereunder paid or payable by such Portfolio for any fiscal year,
exceed the applicable expense limitations imposed by state securities laws or
regulations thereunder (as same may be adjusted from time to time), the Adviser
will reduce its Management Fee to the extent of such excess and if required,
pursuant to any such laws or regulations ((unless otherwise waived), will
reimburse the Portfolio for annual operating expenses in excess of any such
expense limitation up to the amount of the Management Fee payable to it during
that fiscal year with respect to the Portfolio. The Adviser has the right, but
not the obligation, to waive any portion or all of its Management Fee, from time
to time.
The Adviser has entered into a Sub-Advisory Agreement with Global Value
Investors, Inc. ("GVI") whereby GVI will make the day-to-day investment
decisions regarding investments by the Portfolio. As part of that Sub-Advisory
Agreement, Adviser has agreed to pay GVI a sub-advisory fee of 0.625% of the
average daily net assets of the Portfolio. The Adviser will pay such fees to
GVI. The Fund and the Portfolio shall have no obligation to pay such fees.
Said Sub-Advisory Agreement is adopted, approved and made a part hereof as
Exhibit A.
The "average daily net assets" of the Portfolio for a particular period
shall be determined by adding together all calculations of net assets, as
regularly computed for the Portfolio on each business day during such period,
and dividing the resulting total by the number of business days during such
period.
4. LIMITATIONS OF LIABILITY OF ADVISER. The Adviser shall not be liable
for any error of judgment or mistake of law or fact, or, for any loss suffered
by the Portfolio or its investors in connection with the matters to which this
Agreement relates, except (i) a loss resulting from willful misfeasance, bad
faith, or gross negligence on the part of the Adviser in the performance of its
duties, or from reckless disregard by the Adviser of its obligations and duties
under this Agreement, or (ii) a loss for which the Adviser would not be
permitted to be indemnified under the federal Securities laws. The Portfolio
also agrees to indemnify Adviser to the extent provided for and agreed to by the
parties in that agreement entitled Indemnification Agreement executed by both
parties on this date and incorporated herein as Exhibit B and made a part
hereof.
5. DURATION AND TERMINATION OF THIS AGREEMENT. This Agreement shall
become effective as of the date hereof and shall continue in effect unless
sooner terminated, as herein provided, for two years after the date hereof, and
thereafter only if approved at least annually: (a) by the Board of Trustees of
the Portfolio; or (b) by the vote of a majority (as defined in the Act) of the
outstanding voting securities of the Portfolio, and, in addition,
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(c) by the vote of a majority of the Trustees of the Portfolio who are not
parties hereto nor interested persons of any party, as required by the Act.
This Agreement may be terminated at any time, without payment of any
penalty, by the Board of Trustees of the Portfolio, or by a vote of a majority
(as defined in the Act) of the outstanding voting securities of the Portfolio,
in either case upon written notice to the Adviser, and it may be terminated by
the Adviser upon sixty (60) days' written notice to the Portfolio. This
Agreement shall automatically terminate in the event of its assignment, within
the meaning of the Act, unless such automatic termination shall be prevented by
an exemptive order of the Securities and Exchange Commission.
6. SEPARATE CONTRACT. This Agreement is separate and distinct form, and
neither affects nor is affected by (i) the Fund's Distribution Agreement, and
(ii) the Fund's Administrative Services Agreement. Nothing contained in this
Agreement shall prevent the Adviser or any affiliated person of the Adviser from
acting as investment adviser or manager for any other person, firm, corporation,
or other entity and shall not in any way bind or restrict the Adviser or any
such affiliated person from buying, selling, or trading any securities,
commodities, futures contracts, or options on such contracts for their own
accounts or for the account of others for whom they may be acting. Nothing in
this Agreement shall limit or restrict the right of any director, officer, or
employee of the Adviser to engage in any other business or to devote his time
and attention in part to the management or other aspects of any other business
whether of a similar or dissimilar nature.
7. AMENDMENT. This Agreement may be amended from time to time by
agreement of the parties; provided, that such amendment shall be approved both
by the vote of a majority of Trustees of the Portfolio, including a majority of
Trustees who are not parties to this Agreement or interested persons of any such
party to this Agreement (other than as Trustees of the Portfolio) cast in person
at a meeting called for that purpose, and by the holders of a majority (as
defined in the Act) of the outstanding voting securities of the Portfolio.
This Agreement may be amended by agreement of the parties without the vote
or consent of the shareholders of the Portfolio to supply any omission, to cure,
correct, or supplement any ambiguous, defective, or inconsistent provision
hereof, or if they deem it necessary to conform this Agreement to the
requirements of applicable federal and/or state laws or regulations, but neither
the Portfolio nor the Investment Adviser shall be liable for failing to do so.
8. BINDING EFFECT. This Agreement shall be binding upon, and inure to
the benefit of the Portfolio and the Adviser and their respective successors.
9. NAME OF THE PORTFOLIO. The Portfolio acknowledge that the name
"Navellier" is and shall remain the sole property of the Adviser,
notwithstanding the use thereof by the Portfolio. The Portfolio may use the
name "The Navellier Performance Fund, The Navellier International Equity
Portfolio" or any name derived from the name "Navellier" only for so long as
this Agreement or any extension, renewal, or amendment hereof remains in effect,
including any similar agreement with any organization which shall have succeeded
to the
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business of the Adviser and for only so long as Navellier Management, Inc.,
remains as Adviser to the Portfolio. At such time as such an agreement shall no
longer be in effect, or Adviser's services have terminated, the Portfolio will
(to the extent that it is lawfully able) cease to use such a name or any other
name connected with the Adviser or any organization which shall have succeeded
to the business of the Adviser.
10. DEFINITIONS. Capitalized terms used herein without definition shall
have the meanings ascribed thereto in the Prospectus. For the purpose of this
Agreement, the terms "vote of a majority of the outstanding voting securities,"
"assignment," "affiliated person," and "interested person" shall have the
respective meanings specified in the Investment Company Act of 1940.
11. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and each party may
become a party hereto by executing a counterpart hereof. This Agreement and any
counterpart so executed shall be deemed to be one and the same instrument.
12. APPLICABLE LAW. This Agreement shall be governed by, and construed in
accordance with the laws of the State of Delaware. Any dispute or controversy
arising out of this Agreement shall be either submitted to arbitration (if both
parties agree) in Reno, Nevada (near the Fund's principal place of business) in
accordance with the rules and regulations of the National Association of
Securities Dealers, Inc., or decided by a trier of fact in a federal or state
court in Reno, Nevada, and in no other jurisdiction or court venued outside of
Reno, Nevada.
13. ACKNOWLEDGEMENT OF RECEIPT OF FORM ADV PART II. The Portfolio hereby
acknowledges receipt of the Adviser's Form ADV Part II or its brochure as
required by Rule 204-3 promulgated under the Investments Advisers Act of 1940.
14. INTEGRATION OF ALL PRIOR DISCUSSIONS, NEGOTIATIONS AND AGREEMENTS.
This Agreement integrates all prior discussions, negotiations and agreements
between the parties relating to Adviser's and Portfolio's agreement relating to
the performance of investment advisory services for the Portfolio, and no
evidence or parol evidence may be introduced to vary or change the terms of this
written Agreement which is the full and final expression of the parties'
agreement. Any change in the terms of this Agreement must be in writing signed
by both parties.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement on the day and year first above written in Reno, Nevada.
THE NAVELLIER INTERNATIONAL EQUITY
PORTFOLIO OF THE NAVELLIER
PERFORMANCE FUNDS
By:
----------------------------
Xxxxx Xxxxxx, Trustee
By:
----------------------------
Attest: Xxxx Xxxxxxx, Trustee
/s/ By:
-------------------- ----------------------------
Xxxxxx Xxxxxxx, Trustee
By:
----------------------------
Xxxxxxx Xxxxxxxxx, Trustee
NAVELLIER MANAGEMENT, INC.
By:
----------------------------
Xxxxx Xxxxxxxxx, President
Attest:
/s/
--------------------------
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EXHIBIT A
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DATED AUGUST 14, 1997
GLOBAL VALUE INVESTORS, INC.
and
THE NAVELLIER PERFORMANCE FUNDS
_____________________________________________
INVESTMENT ADVISORY AGREEMENT
_____________________________________________
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THIS AGREEMENT is made the 14th day of August 1998
AMONG
(1) NAVELLIER MANAGEMENT, INC., a corporation incorporated in and under the
laws of the state of Delaware, whose principal office is at Xxx Xxxx
Xxxxxxx, Xxxxx Xxxxx, Xxxx, Xxxxxx 00000 (hereinafter called "the
Manager"); and
(2) THE NAVELLIER PERFORMANCE FUNDS, a Delaware business trust, whose principal
office is at Xxx Xxxx Xxxxxxx, Xxxxx Xxxxx, Xxxx, Xxxxxx 00000 (hereinafter
called the "Funds"); and
(3) GLOBAL VALUE INVESTORS, INC., a corporation incorporated in and under the
laws of the state of New Jersey, whose principal office is at 000 Xxxxxxxx
Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxx Xxxxxx 00000 (hereinafter called "the
Investment Advisor").
WHEREAS
A. The Navellier International Portfolio (the "Portfolio") is to be a new
portfolio of the Funds. The Portfolio is being organized with the
principal object to carry on business as a mutual fund portfolio investing
in international securities. None of the other portfolios of the Funds
invests primarily in securities of companies located outside of the United
States.
B. Manager has previously entered into an agreement with the Funds to provide
certain administrative and management services.
C. The Investment Advisor has experience in investing in international
securities that the Manager desires to utilize in managing the Portfolio.
D. The Manager is desirous of appointing the Investment Advisor to act as a
sub-advisor to the Portfolio and to the Manager in the stock selection and
investment advice relating to the Portfolio, and the Investment Advisor
(having been approved by the trustees of the Funds) has agreed so to act
with a view to attempting to achieve the investment objective of the
Portfolio.
NOW IT IS HEREBY AGREED as follows:
1. APPOINTMENT OF INVESTMENT ADVISOR
(a) The Manager hereby appoints the Investment Advisor and the Investment
Advisor hereby agrees to act as the sole investment advisor to the
Portfolio from the date hereof upon the terms and subject to the
conditions hereinafter contained.
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(b) The Investment Advisor shall use its best endeavors to increase the
value of the cash and investments securities of the Portfolio
(hereinafter "Investments") by investing and reinvesting the same in
such manner as the Investment Advisor shall think fit.
(c) In carrying out its duties hereunder the Investment Advisor shall
observe and comply with the Trust Agreement and Bylaws of the
Portfolio, all applicable provisions of the Prospectus (all of which
documents shall first be provided to the Investment Advisor for its
review and approval), the Investment Company Act of 1940 (the "Act"),
and all resolutions and directions of the Board of Trustees of the
Funds (the "Trustees") of which it shall have notice, PROVIDED THAT
such resolutions, Bylaws and provisions of the Prospectus do not
violate any laws or restrictions placed upon the Investment Advisor
under applicable law.
2. DUTIES OF INVESTMENT ADVISOR
The Manager hereby delegates to the Investment Advisor the management of
the investment and reinvestment of the Investments comprising the assets of
the Portfolio with power on behalf of and in the name of the Portfolio at
its discretion:
(a) To direct the purchase, subscription or other acquisition of
Investments and to direct the sale, redemption, exchange thereof,
subject to the duty to render to the Trustees, the Manager and the
institution having custody of the Portfolio's Investments (the
"Custodian") written reports of the composition of the portfolio of
the Portfolio as often as the Trustees shall reasonably require;
(b) To make all decisions (except for decisions relating to leverage)
relating to the manner, method and timing of investment transactions,
to select brokers, dealers and other intermediaries by or through whom
such transactions will be effected, and to engage such consultants,
analysts and experts in connection therewith as may be considered
necessary or appropriate;
(c) To direct banks, brokers or custodians to disburse funds or assets
solely in order to execute investment transactions for the Portfolio,
PROVIDED THAT the Investment Advisor shall have no authority to direct
the transfer of Portfolio funds or assets to itself or other persons
and shall have no authority over the disbursement (as opposed to
investment decisions) of funds or assets nor any custody of any
Portfolio funds or assets; and
(d) To take all such other actions as may be considered necessary or
appropriate to discharge its duties hereunder;
PROVIDED THAT any specific or general directions which the Trustees may
give to the Investment Advisor with regard to any of the foregoing powers
shall, unless the contrary is expressly stated therein, override the
general authority given by this clause to the extent that the Trustees may,
at any time and from time to time, take over,
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either generally or to a limited extent, the exercise of all or any of the
same as they shall think fit and, in particular, the Manager shall have the
right to direct the Investment Advisor to place trades through brokers and
other agents of the Manager's choice, subject to such broker or agents
executing such trades on a "best execution basis", i.e. at the best price
and/or with research or other services which render that broker's services
the most appropriate for the Investment Advisor's needs, and further that
the Investment Advisor is satisfied that the dealing and execution quality
of such brokers are satisfactory to the Investment Advisor; PROVIDED
FURTHER THAT nothing herein shall be construed as giving the Investment
Advisor power to manage the aforesaid cash and Investments in such a manner
as would cause the Portfolio to be considered a "dealer" in stocks,
securities or commodities for U.S. federal income tax purposes; PROVIDED
FURTHER THAT such directions by the Trustees do not violate any fiduciary
duties, U.S. statutes or the laws of any other countries with regard to the
Investment Advisor's duties and responsibilities; and PROVIDED FURTHER THAT
if the Trustees elect to take over, either generally or to a limited
extent, the exercise of all or any of the Investment Advisor's
responsibilities hereunder, then the provisions of clause 3(b) shall be
applicable to those circumstances.
3. REMUNERATION OF THE INVESTMENT ADVISOR
a. The Manager shall pay to the Investment Advisor by way of remuneration
for its services hereunder 50% of the investment advisory fees
received by Manager, i.e., 50% of 1.00% (0.50%) of average daily net
assets of the Portfolio. The fee payable to the Investment Advisor
under this clause shall accrue and be due on the last business day of
each month and shall be paid on that day or as soon thereafter as is
practicable, PROVIDED THAT nothing contained in this clause shall
preclude the Manager from charging the Portfolio a Section 12b-1 fee
of no greater than one-fourth of one percent (0.25%).
b. If Investment Advisor should cease to be Investment Advisor to the
Portfolio for any reason then either:
(i) Investment Advisor and Manager shall agree upon a fair and
equitable severance payment to the Investment Advisor; or
(ii) The Manager shall resign as a manager of the Portfolio, and
neither the Manager nor an affiliated person or affiliated
company of the Manager (as those terms are defined in the Act)
shall accept any compensation, directly or indirectly,
attributable to investment advisory services to the Portfolio
for a period of ten (10) years from the date on which the
Investment Advisor ceases to perform the duties required of him
hereunder.
c. If any of the Manager's rights and responsibilities under the
investment advisory agreement between the Manager and the Funds are
transferred or assigned to a third party, then the Investment Advisor
shall be entitled to one-half (1/2) of the consideration attributable
to the Portfolio in the same form
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and at the same time as the Manager receives such compensation. If
receipt of such consideration is subject to the recipients' obligation
to refrain from competing with the assignee or transferee of such
rights, then the Investment Advisor's right to receive any
consideration under this paragraph shall be contingent upon the
agreement of the Investment Advisor to agree to the same restrictions
upon its future activities as those to which the Manager agrees.
4. DEALINGS OF INVESTMENT ADVISOR
(a) Subject to sub-clause (b) below, the duties of the Investment Advisor
hereunder shall not preclude the Investment Advisor from providing
investment advisory services of a like nature to any other person or
entity, including, without limitation, the management of managed
accounts and clients' accounts as part of its existing or future
business and the Investment Advisor shall not be liable to account for
any profit arising therefrom to the Manager, the Portfolio or the
shareholders of the Portfolio (the "Shareholders").
(b) The Investment Advisor undertakes, while acting as investment advisor
to the Portfolio hereunder, and for a period of one year thereafter,
that neither it nor any of its affiliates (as that term is defined in
the Act) shall establish any mutual fund which may reasonably be
deemed to compete with the Portfolio, nor enter into any arrangements
to manage or advise any such fund without obtaining the prior written
consent of the Manager, which consent shall not be unreasonably
withheld. Specifically, the Investment Advisor agrees that it shall
not deal directly with any investor of the Portfolio in connection
with subscription(s) or with the investment of funds in the Portfolio
and will direct all inquiries from prospective investors to the
Manager. The Investment Advisor further agrees that it will not
accept any fee directly from any prospective investor or take any
other action to aid any prospective investor in circumventing the
Manager in connection with its management fee. The Investment Advisor
further agrees that information concerning investors in the Portfolio,
including but not limited to investors' names, addresses, telephone
numbers, net worth, investment objectives, brokers, consultants, and
financial advisors, constitute confidential customer lists and trade
secret information which belong to Manager and Funds only and not to
Investment Advisor. Nothing contained in this paragraph shall limit
or restrict the Investment Adviser from receiving compensation for
rendering investment advice to its clients nor from assisting the
Manager in marketing the Portfolio.
5. EXPENSES
a. The Investment Advisor shall be entitled to reimbursement from the
Portfolio or Manager of its non-overhead, out-of-pocket, reasonable
expenses properly associated with and incurred by the Investment
Advisor in exercising or carrying out its powers and duties hereunder.
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b. The Investment Advisor shall bear its own overhead research and other
internal operating costs.
c. For the avoidance of doubt, the Portfolio shall bear its own overhead
and other internal operating costs (whether incurred directly or by
the Manager) including, without limitation:
(i) The costs incurred by the Portfolio in registration under the
Act and the Securities Act of 1933, including, but not limited
to the preparation and printing of the prospectus or any
offering literature (including any form of advertisement or
other solicitation materials calculated to lead to investors
subscribing for Shares) and compliance with Blue Sky laws;
(ii) All fees and expenses on behalf of the Portfolio to its
transfer agent and custodian;
(iii) The reasonable fees and expenses of accountants, auditors,
lawyers and other professional advisors to the Portfolio;
(iv) Any interest, fee or charge payable on or on account of any
borrowing by the Portfolio;
(v) Fiscal and governmental charge and duties relating to the
purchase, sale, issue or redemption of Shares and increases in
authorized share capital of the Portfolio;
(vi) The fees of any stock exchange or over-the-counter market on
which the Shares may from time to time by listed, quoted or
dealt in and the expenses of obtaining any such listing,
quotation or permission to deal;
(vii) The fees and expenses (if any) payable to the Trustees;
(viii) Brokerage, fiscal or governmental charges or duties in respect
of or in connection with the acquisition, holding or disposal
of any of the assets of the Portfolio or otherwise in
connection with its business;
(ix) The annual registration fees for the Funds;
(x) The expenses of publishing details and prices of Shares in
newspapers and other publications;
(xi) All expenses incurred in the convening of meetings of
Shareholders or in the preparation of agreements or other
documents relating to the Portfolio or in relation to the safe
custody of the documents of title of any Investments;
(xii) All Trustees' fees and communications costs.
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d. The Manager shall be responsible for all expenses of marketing of the
Portfolio, including fees payable for inclusion in mutual fund
supermarkets.
6. CONCERNING THE INVESTMENT ADVISOR
The Investment Advisor agrees to use its best efforts and judgment and to
take due care in exercising or carrying out its power and duties hereunder,
PROVIDED THAT it shall not, in the absence of wilful default or negligence
as opposed to errors in investment judgment on its part, be liable to the
Manager, the Portfolio or the Shareholders for any act or omission in
connection with the performance of its services hereunder. The Investment
Advisor shall not be liable to the Portfolio or any of its Shareholders or
any other party for any error of judgment or any other action or omission
by the Manager and/or the Portfolio or any of their employees, associates,
brokers, distributors, agents or persons or entities working on their
behalf or for any loss sustained by the Portfolio or its Shareholders or
any third party or entity which is a result of any action or omission taken
by the Manager or the Portfolio, or any of their employees, associates,
brokers, distributors, agents or persons or entities working on their
behalf.
7 INDEMNITY
Each of the Manager and the Investment Advisor Investment Advisor (the
"Indemnifying Party") agrees to indemnify the other (the "Covered Person")
from and against all liabilities, losses, expenses, reasonable attorneys'
fees and costs (other than attorneys' fees and costs in relation to the
preparation of this Agreement, for which each party shall bear its own
costs and attorneys' fees) or damages (other than liabilities, losses,
expenses, attorneys' fees and costs or damages arising from any wilful
default or gross negligence on the Covered Person's part) claimed by any
third party as a result of the acts or commissions of the Indemnifying
Party in connection with the performance of services hereunder, including
but not limited to any claims asserted or threatened by the Portfolio, any
Shareholder, governmental or regulatory agency, or any other person
PROVIDED THAT any claim for indemnity made by a Covered Person under the
terms of this indemnity shall first be made by that party to the
Indemnifying Party. The Indemnifying Party shall advance to the Covered
Party its reasonable expenses and costs (including any reasonable
attorneys' fees and costs) of investigating and/or defending any claim
asserted or threatened by the Portfolio or any such Shareholder or
Shareholders, governmental or regulatory agency or any other third person
in connection with the indemnity provisions of this Agreement, subject
always to the Indemnifying Party first receiving a written undertaking from
the Covered Party to repay any amounts advanced to him in the event and to
the extent of any subsequent determination that the Covered Party was not
entitled to indemnification hereunder in respect thereof. Notwithstanding
any of the foregoing provisions of this paragraph to the contrary, the
Investment Advisor shall not be liable to the Manager hereunder for any
error of judgment or any other action or omission for which the Investment
Advisor would not be liable pursuant to the provisions of Clause 5 of this
Agreement.
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8. INDEPENDENT CONTRACTOR
The Investment Advisor shall for all purposes of this Agreement be deemed
to be an independent contractor and, except as otherwise expressly provided
herein, shall have no authority to act for, bind or represent the Portfolio
in any way or otherwise be deemed to be an agent of the Portfolio. Without
limiting the generality of the foregoing, the Investment Advisor shall have
no authority (nor shall it have any duty) on behalf of the Portfolio
(a) To maintain the principal corporate records or books of account of the
Portfolio;
(b) To disburse funds or assets of the Portfolio payments of dividends,
legal and accounting fees, and trustees' and officers' salaries;
(c) To publish or furnish the subscription price or redemption price of
the shares of the Portfolio;
(d) To make redemptions of the Portfolio's shares;
(e) To calculate or determine the Net Asset Value of the Portfolio's
shares; or
(f) To market, sell, advertise, produce prospectuses and file financial
reports with any governmental agency or to be involved in any such
activity associated with the Fund.
9. ACCOUNT AND OTHER INFORMATION The Investment Advisor shall:
(a) Arrange that there be sent to the Portfolio confirmations of all
transactions in the Portfolio's Investments and periodic statements
(not less frequently than monthly) thereof at a fair market valuation,
together with such further information concerning its services
performed for the Portfolio as the Portfolio may reasonably request;
(b) Provide to the Portfolio and the Manager on execution of this
Agreement a copy of Part II of the Investment Advisors' current Form
ADV filed with the Securities and Exchange Commission (and shall
provide promptly to the Portfolio any supplement or amendment
thereto);
(c) Provide to the Manager such information at such times as the Manager
may reasonably require for the purposes of preparing or procuring the
preparation of monthly trading and quarterly reports for dispatch to
the Shareholders; and
(d) Provide to the Manager, or such other person as the Manager may
direct, timely valuations of Investments for the purpose of
calculating the Net Asset Value of the Porfolio's shares (however, the
Investment Advisor shall have no
15
responsibility in preparing or calculating the Net Asset Value, which
responsibility shall be solely that of the Manager).
10. USE OF NAMES AND PERFORMANCE RECORD
a. The name and right to the name Navellier Management, Inc. or any
derivation of the name Navellier shall at all times be owned and be
the sole and exclusive property of Xxxxx Xxxxxxxxx. At the conclusion
of the term of this Agreement or in the event of any termination of
this Agreement or if the Investment Advisor's services are terminated
for any reason, the Portfolio and its employees, representatives,
affiliates, associates agree that they shall immediately cease using
the name Navellier and/or any derivatives of said name for the
Portfolio.
b. The Portfolio and Manager shall not publish or distribute to its
Shareholders, prospective investors, sales agents or members of the
public any disclosure document, offering literature (including any
form of advertisement or other solicitation materials calculated to
lead to investors subscribing for shares in the Portfolio) or other
document referring by name to the Investment Advisor unless the
Investment Advisor shall have consented in writing to such references
in the form and context in which they appear.
c. The performance record of the Portfolio shall belong to the Investment
Advisor.
11. TERMINATION
The appointment of the Investment Advisor hereunder shall continue in force
until a date which is twenty-four (24) calendar months after the later of
the date of its initial execution and approval by the Board of Trustees of
the Navellier Performance Funds, and, subject to approval at least annually
by the Board of Trustees, shall continue thereafter until terminated either
by the Portfolio giving to the Investment Advisor notice in writing at any
time or by the Investment Advisor giving to the Manager and/or the
Portfolio not less than sixty (60) days notice in writing. Notwithstanding
the foregoing provisions of this clause to the contrary, the provisions of
clauses 3, 4b and 10 shall survive the termination of the Investment
Advisor's appointment hereunder.
12. NOTICES
Any notice, instruction or other instrument required or permitted to be
given hereunder may be delivered in person to the offices of the parties as
set forth herein during normal business hours, or delivered or sent by
prepaid registered mail or by telex, cable or telecopy to the parties at
such offices or such other address as may be notified by either party from
time to time. Such notice, instruction or other instrument shall be deemed
to have been served, in the case of a registered letter at the expiration
of seventy-two (72) hours after posting; in the case of cable twenty-four
16
(24) hours after dispatch; and, in the case of telex or telecopy,
immediately on dispatch, and if delivered outside normal business hours it
shall be deemed to have been received at the next time after delivery when
normal business hours commence, and in the case of cable, telex or telecopy
on the business day after the receipt thereof. Evidence that the notice,
instruction or other instrument was properly addressed, stamped and put
into the post shall be conclusive evidence of posting.
13. ASSIGNMENT AND DELEGATION
The benefit of this Agreement shall not be assigned by any party hereto
save with the written consent of the other parties. This Agreement shall
be personal to the Investment Advisor, who shall not sub-contract or
delegate the performance of its services hereunder to any person
whatsoever.
14. PROPER LAW AND FORUM
This Agreement shall be governed by and construed in accordance with the
laws of the State of Nevada, and the parties agree that the federal or
state court located in San Francisco, California shall hear and determine
any suit, action or proceeding, and/or settle any disputes between the
parties which may arise out of or in connection with this Agreement unless
otherwise agreed in writing signed by all parties.
15 MODIFICATIONS
Except as otherwise provided herein, this Agreement shall not be considered
amended, modified or waived unless evidenced by an instrument in writing
signed by the party or parties to be charged with such amendment,
modification or waiver.
16. COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one
and the same instrument. This Agreement shall not be effective until the
execution and delivery between the parties of at least one set of
counterparts. The parties authorize each other to detach and combine
original signature pages and consolidate them into a single identical
original. Any one of such completely executed counterparts shall be
sufficient proof of this Agreement.
17. ATTORNEYS' FEES
In the event of a material breach of this Agreement by any party hereto,
the prevailing party, as determined by the trier of fact, shall be entitled
to its reasonable attorneys' fees and costs as determined by the court in
such action, in addition to any other damages awarded.
18. INTEGRATION
17
Unless otherwise agreed in writing between the parties hereto, the parties
intend that the terms of this Agreement shall be the final expression of
their agreement with respect to the subject matter hereof and may not be
contradicted by evidence of any prior or contemporaneous negotiations or
agreement. The parties further intend that this Agreement shall constitute
the complete and exclusive statement of its terms and that no extrinsic
evidence whatsoever may be introduced in any judicial, administrative, or
other legal proceeding involving this Agreement, to alter its terms. Any
dispute as to which persons or entities are liable for a breach of this
Agreement shall be determined by the court or other trier of fact.
19. MUTUAL CONTRIBUTION
This Agreement has been negotiated at arm's length among persons
sophisticated and knowledgeable in the matters dealt with in the Agreement.
In addition, each party has been represented by experienced and
knowledgeable legal counsel. Accordingly, any rule of law or legal
decision that would require interpretation of any ambiguities in this
Agreement against the party that has drafted it is not applicable and it
waived. The provisions of this Agreement shall be interpreted in a
reasonable manner to effect the purposes of the parties and this Agreement.
20. HEADINGS.
The paragraph headings of this Agreement are intended solely for
convenience of reference and shall not be used to define, limit, extend, or
describe the scope of this Agreement or the intent of any provision hereof.
References to clauses or paragraphs shall be deemed to refer to clauses or
paragraphs of this Agreement unless specific reference is made to another
document.
18
IN WITNESS WHEREOF, the parties have signed this Agreement as of the date first
set forth above.
GLOBAL VALUE INVESTORS, INC.
---------------------------------
Ram Xxxxxxx, President
August 14, 1997
NAVELLIER MANAGEMENT, INC.
By
---------------------------------
Xxxxx X. Xxxxxxxxx, President
THE NAVELLIER PERFORMANCE FUNDS
By
---------------------------------
Xxxxx X. Xxxxxxxxx
19
EXHIBIT B
20
INDEMNIFICATION AGREEMENT
The Navellier International Equity Portfolio of The Navellier Performance
Funds (the "Fund") and Navellier Management, Inc. (the "Advisor") agree as
follows:
1. The Fund agrees with the Advisor, for the benefit of the Advisor and
each person, if any, who controls the Advisor within the meaning of Section 15
of the Securities Act and each and all and any of them, to indemnify and hold
harmless the Advisor 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 Advisor 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 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 Advisor for inclusion in any
such Registration Statement or Prospectus or any amendment thereof or supplement
thereto. The Advisor and each such controlling person shall, within thirty (30)
days after the complaint shall have been served upon the Advisor or such
controlling person in respect of which indemnity may be sought from the Fund on
account of its agreement contained in this paragraph, notify the Fund in writing
of the commencement thereof. The omission of the Advisor of such controlling
person so to notify the Fund of any such litigation shall relieve the Fund from
any liability which it may have to the Advisor or such controlling person on
account of the indemnity agreement contained in this paragraph if such failure
to timely notify the Fund has resulted in substantial prejudice to the Fund, but
shall not relieve the Fund from any liability which it may have to the Advisor
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 Advisor or any such controlling person and notice of the
commencement thereof shall have been timely given to the Fund, the Fund 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 Advisor or such
controlling person(s) or defendant(s) in the litigation. The indemnity
agreement of the Fund contained in this paragraph shall remain operative and in
full force and effect regardless of any investigation made by or on behalf of
the Advisor or any such controlling person, and shall survive any delivery of
shares of the
21
Fund. The Fund agrees to notify the Advisor 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 Fund.
2. Anything herein to the contrary notwithstanding, the agreement in
paragraph 1 of this Indemnification Agreement, insofar as it constitutes a basis
of reimbursement by the Fund for liabilities (other than payment by the Fund 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 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 Fund, 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.
3. The Advisor agrees to indemnify and hold harmless the Fund and
its 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 Fund 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 Fund 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 Advisor for inclusion in any
Registration Statement or any Prospectus, or any amendment thereof or supplement
thereto or otherwise for distribution or publication. The Advisor shall not be
liable for amounts paid in settlement of any such litigation if such settlement
was effected without its consent. The Fund and its 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 Fund or any such Trustee or
officer in respect of which indemnity may be sought from the Advisor or account
of its agreement contained in this paragraph, notify the Advisor in writing of
the commencement thereof. The omission of the Fund or such Trustee or officer
so to notify the Advisor of any such litigation shall relieve the Advisor from
any liability which it may have to the Fund or such Trustee or officer of
liability which it may have to the Fund or such Trustee or officer on account of
the indemnity agreement contained in this paragraph, but shall not relieve the
Advisor from any liability which it may have to the Fund 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 or any
such Trustee or officer and timely notice of the commencement thereof shall have
been so given to the Advisor, the Advisor 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 Advisor
22
contained in this paragraph shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of the Fund and shall
survive any delivery of shares of the Fund. The Fund agrees to notify the
Advisor promptly of the commencement of any litigation or proceeding against it
or any of its officers or Trustees or against any such controlling person of
which it may be advised in connection with the issue and sale of the Fund's
shares.
4. 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 Fund or its security holders to which
they would otherwise be subject by 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.
5. Except as expressly provided in paragraphs 1 and 3 hereof, the
agreements herein set forth have been made and are made solely for the benefit
of the Fund, the Advisor, and the persons expressly provided for in paragraphs 1
and 3, 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 Advisor, and the persons expressly provided for in paragraphs 1 and 3, 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.
23
ATTEST: THE NAVELLIER INTERNATIONAL EQUITY
PORTFOLIO OF THE NAVELLIER
PERFORMANCE FUNDS
By:
---------------------- ------------------------------
Xxxxx Xxxxxx, Trustee
By:
------------------------------
Xxxx Xxxxxxx, Trustee
By:
------------------------------
Xxxxxxx Xxxxxxxxx, Trustee
By:
------------------------------
Xxxxxx Xxxxxxx, Trustee
ATTEST: NAVELLIER MANAGEMENT, INC.
By:
---------------------- ------------------------------
Xxxxx Xxxxxxxxx, President
24
