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REGISTRATION NO.
FILED SEPTEMBER 10, 1998
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM N-1A
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REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 X
Pre-Effective Amendment No.
Post-Effective Amendment No.
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and/or
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REGISTRATION STATEMENT UNDER THE INVESTMENT COMPANY
ACT OF 1940 X
Amendment No.
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THE AMERICAN TIGER FUNDS
Chatfield Dean & Co.
7935 East Prentice Avenue, Suite 200
Greenwood Village, Colorado 80111
1-800-723-3326
Agent for Service:
SAMUEL KORNHAUSER
155 Jackson Street, Suite 1807
San Francisco, California 94111
The approximate date of the proposed Public Offering is October 2, 1998.
It is proposed that this filing will become effective (check the appropriate
box):
/ / immediately upon filing pursuant to paragraph (b)
/X/ on September 30, 1998 pursuant to Section 8(a), Securities Act of 1933
/ / 60 days after filing pursuant to paragraph (a)(1)
/ / 75 days after filing pursuant to paragraph (a)(2)
/ / on (date) pursuant to paragraph (a)(2) of Rule 485
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Registrant has declared that it has registered an indefinite number or amount of
securities under the Securities Act of 1933 pursuant to Investment Company Act
Rule 24f-2 and that the Rule 24f-2 Notice for Registrant's fiscal year 1998 will
be filed on or before February 28, 1999.
Page 1 of ___ pages sequentially numbered.
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THE AMERICAN TIGER FUNDS
CONTENTS
This Registration Statement on Form N-1A consists of the following:
1. Facing Sheet
2. Contents
3. Cross-Reference Sheet
4. Part A - Prospectus for all shares of The American Tiger Funds
5. Part B - Statement of Additional Information for all shares of The
American Tiger Funds
6. Part C - Other Information
7. Signature Sheet
8. Exhibits
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CROSS-REFERENCE SHEET
Part A
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FORM N-1A ITEM NUMBER PROSPECTUS CAPTION
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1. Cover Page Cover Page
2. Synopsis Summary of Fund Expenses
3. Condensed Financial Information Condensed Financial Information-- Financial
Highlights
4. General Description of Registrant Investment Objectives and Policies, General
Information, Risk Considerations
5. Management of Registrant Management of the Fund
5A. Management's Discussion of Fund Performance Financial Highlights; Performance
6. Capital Stock and Other Securities General Information
7. Purchases of Securities Being Offered Management of the Fund
How to Buy Shares
Dividend Reinvestment
Distribution Fees
8. Redemption or Repurchase How to Redeem Shares
9. Legal Proceedings N/A
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Part B--Statement of Additional Information
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FORM N-1A ITEM NUMBER PROSPECTUS CAPTION
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10. Cover Page Cover Page
11. Table of Contents Table of Contents
12. General Information and History N/A
13. Investment Objectives and Policies Investment Objective and Policies
Investment Restrictions
14. Management of the Fund Management
15. Control Persons and Principal Holders of Management
Securities
16. Investment Advisory and Other Services Management of the Fund
Management
Distribution Plan
Other Information
17. Brokerage Allocation and Portfolio Transactions Management of the Fund
Other Practices
18. Capital Stock and Other Securities General Information
19. Purchase, Redemption and Pricing of How to Buy Shares
Securities Being Offered Net Asset Value
20. Tax Statutes Dividends, Distributions, and Taxes
21. Underwriters Management
Distribution Plan
22. Calculation of Performance Data Performance Information
23. Financial Statements Financial Statements
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Part C
Information required to be included in Part C is set forth under the
appropriate Item, so numbered, in Part C to this Registration Statement.
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THE AMERICAN TIGER FUNDS
The American Tiger Funds (the "Fund") is an open-end management investment
company which offers its shares in a series of load, non-diversified portfolios
which invest in stocks which the Fund's investment advisor believes to be among
the best stocks available at any given time based on its quantitative analysis,
applying its proprietary modern portfolio theory analysis. The Fund is presently
offering its shares in one Portfolio: The American Tiger Top 20 ("Top 20"), a
non-diversified, open-end management company portfolio with the authority to
invest in a full range of equity securities. The investment objective is to
attain capital appreciation through investment in equity securities which the
investment advisor believes to represent the best investment opportunities at
any given time. Additional non-diversified or diversified portfolios may be
added to the Fund in the future. There can be no assurance that the Portfolios
of the Fund will achieve their investment objectives.
This Prospectus sets forth concisely the information about the Fund that a
prospective investor should know before investing and should be read and
retained for future reference.
A Statement of Additional Information about the Fund has also been filed
with the Securities and Exchange Commission. The Statement of Additional
Information is, and the Fund's Annual and Semi-Annual Reports will be, available
upon request and without charge by calling or writing The American Tiger Funds
c/o Chatfield Dean & Co., 7935 East Prentice Avenue, Suite 200, Greenwood
Village, Colorado, 80111; Telephone: 1-800-723-3326. Shareholders may also call
toll-free or write to Chatfield Dean with any questions they may have.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
NO DEALER, SALESMAN, OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS, OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS, AND, IF GIVEN OR MADE, SUCH OTHER INFORMATION OR REPRESENTATIONS
MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE FUND, ITS INVESTMENT
ADVISER, OR ITS DISTRIBUTOR. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO BUY
ANY OF THE SECURITIES OFFERED HEREBY IN ANY STATE TO ANY PERSON TO WHOM IT IS
UNLAWFUL TO MAKE SUCH AN OFFER IN SUCH STATE.
DISTRIBUTOR AND SALES INFORMATION
CHATFIELD DEAN & CO.
7935 EAST PRENTICE AVENUE, SUITE 200
GREENWOOD VILLAGE, COLORADO 80111
1-800-723-3326
THE DATE OF THIS PROSPECTUS IS SEPTEMBER 30, 1998.
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TABLE OF CONTENTS
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PAGE
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SHAREHOLDER TRANSACTION EXPENSES AND ANNUAL FUND OPERATING EXPENSES....... 1
SUMMARY................................................................... 4
INVESTMENT OBJECTIVES AND POLICIES........................................ 6
SPECIAL INVESTMENT METHODS AND RISKS...................................... 8
INVESTMENT RESTRICTIONS................................................... 9
RISK FACTORS.............................................................. 10
PERFORMANCE............................................................... 13
MANAGEMENT OF THE FUND.................................................... 14
EXPENSES OF THE FUND...................................................... 15
REPORTS AND INFORMATION................................................... 16
DESCRIPTION OF SHARES..................................................... 17
DIVIDENDS AND DISTRIBUTIONS............................................... 18
TAXES..................................................................... 19
PURCHASE AND PRICING OF SHARES............................................ 21
REDEMPTION OF SHARES...................................................... 24
CERTAIN SERVICES PROVIDED TO SHAREHOLDERS................................. 26
ADDITIONAL INFORMATION.................................................... 27
ASSENT TO TRUST INSTRUMENT................................................ 28
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SHAREHOLDER TRANSACTION EXPENSES
AND ANNUAL FUND OPERATING EXPENSES
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THE
AMERICAN
TIGER TOP
20
PORTFOLIO
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SHAREHOLDER TRANSACTION EXPENSES(1)
Maximum Sales Load Imposed on Purchases(5)
(as a percentage of offering price).............................................. 4.95%
Maximum Sales Load Imposed on Reinvested Dividends................................. None
Redemption Fees.................................................................... None
Exchange Fee(3).................................................................... 0-$5
ANNUAL FUND OPERATING EXPENSES
(AS A PERCENTAGE OF AVERAGE NET ASSETS)
Management Fees(4)................................................................. 1.00%
12b-1 Fees(2)...................................................................... 0.25%
Other Expenses..................................................................... 0.25%
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Total Fund Operating Expenses...................................................... 1.50%
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(1) The above table of fees and other expenses is provided to assist you in
understanding the various potential costs and expenses that an investor in
the Fund may bear directly or indirectly. The Investment Advisor may, but is
under no obligation to, reimburse the Fund's expenses now or in the future.
The American Tiger Top 20 Portfolio is a newly organized portfolio which has
been in existence since September 30, 1998 and has no operating history.
(2) The American Tiger Top 20 Portfolio charges an annual 0.25% 12b-1 fee
payable to the distributor or brokers who have signed a selling agreement
with the Fund. The applicable Portfolio of the Fund pays these brokers or
the distributor annually 0.25% of the value of the assets of the applicable
Portfolio of the Fund which were obtained by said broker or distributor. The
fee is paid to the broker or distributor for continuous personal services
and distribution services by such broker or distributor to investors in the
applicable Portfolio. Investors may also be charged a transaction fee if
they effect transactions in fund shares through a broker or agent. Long-term
shareholders in the Fund may pay more than the economic equivalent of the
maximum front-end sales charge permitted by the National Association of
Securities Dealers ("NASD").
(3) Shares of each of the portfolios may be exchanged for shares of each other
portfolio at net asset value without charge (up to five (5) exchanges per
account). There is a charge of $5 per exchange thereafter.
(4) Represents the advisory fee paid to Navellier Management, Inc. (See
"Expenses of the Fund-- Compensation of the Investment Advisor".)
(5) The American Tiger Top 20 Portfolio charges an initial sales load of 4.95%,
which sales load is reduced to 4.00% for purchases between $50,000 and
$99,999. The sales load is 3.50% for purchases between $100,000 and
$249,999. The sales load is 2.50% for purchases between $250,000 and
$499,999. The sales load is 2.00% for purchases between $500,000 and
$999,999. There is no sales load for Trustees of the Fund, the Distributor
or its employees, the Investment Advisor or its employees.
1
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EXAMPLES:
The following example indicates the direct and indirect expenses an investor
(maintaining an average annual investment of $1,000) could expect to incur in a
single year and three-year period for the applicable portfolio:
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THE
AMERICAN
TIGER
TOP 20
PORTFOLIO
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One-Year........................................................................... $ 15
Three-Year......................................................................... $ 46
Five-Year.......................................................................... *
Ten-Year........................................................................... *
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The foregoing examples assume (a) that an investor maintains an average of
$1,000 invested in the Portfolio; (b) a 4.95% sales load; (c) a 5% annual
return; (d) percentage amounts listed above for Annual Fund Operating Expenses
remain constant (for all periods shown above); (e) reinvestment of all dividends
and distributions; and (f) no exchanges between Portfolios.
THE EXAMPLES SHOWN ABOVE SHOULD NOT BE CONSIDERED A REPRESENTATION OF PAST
OR FUTURE EXPENSES. ACTUAL EXPENSES OF EACH PORTFOLIO OF THE FUND MAY BE GREATER
OR LESS THAN THOSE SHOWN ABOVE.
* No estimates because the Portfolio had an operating history of less than 12
months.
2
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FINANCIAL HIGHLIGHTS
There is presently no financial history for The American Tiger Top 20
Portfolio since it is a newly organized portfolio with no operating history as
of September 30, 1998. The distribution of The American Tiger Top 20 Portfolio
shares commenced on October 2, 1998.
3
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SUMMARY
THIS PROSPECTUS SETS FORTH CONCISELY THE INFORMATION ABOUT THE FUND THAT A
PROSPECTIVE INVESTOR SHOULD KNOW BEFORE INVESTING AND SHOULD BE READ AND
RETAINED FOR FUTURE REFERENCE. THE CURRENT PORTFOLIO OF THE FUND IS DESIGNED FOR
LONG TERM INVESTORS AND NOT AS A TRADING VEHICLE AND IS NOT INTENDED TO PRESENT
A COMPLETE INVESTMENT PROGRAM FOR THE INVESTOR. AN INVESTMENT IN THE CURRENT
PORTFOLIO OF THE FUND INVOLVES CERTAIN SPECULATIVE CONSIDERATIONS; SEE "RISK
FACTORS". THE CURRENT PORTFOLIO EMPLOYS AN AGGRESSIVE INVESTMENT STRATEGY THAT
HAS THE POTENTIAL FOR YIELDING HIGH RETURNS. HOWEVER, SHARE PRICES OF THE
PORTFOLIO MAY ALSO EXPERIENCE SUBSTANTIAL FLUCTUATIONS INCLUDING DECLINES SO
THAT YOUR SHARES MAY BE WORTH LESS THAN WHEN YOU ORIGINALLY PURCHASED THEM.
(SEE INVESTMENT OBJECTIVES AND POLICIES PP. FOR GREATER DETAIL.)
A STATEMENT OF ADDITIONAL INFORMATION ABOUT THE FUND HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION AND IS AVAILABLE UPON REQUEST AND WITHOUT
CHARGE BY CALLING OR WRITING THE AMERICAN TIGER FUNDS, C/O CHATFIELD DEAN & CO.,
7935 EAST PRENTICE AVENUE, SUITE 200, GREENWOOD VILLAGE, COLORADO 80111;
TELEPHONE: 800-723-3326. THE STATEMENT OF ADDITIONAL INFORMATION BEARS THE SAME
DATE AS THIS PROSPECTUS AND IS INCORPORATED BY REFERENCE INTO THIS PROSPECTUS IN
ITS ENTIRETY.
INVESTMENT ADVISOR
Navellier Management, Inc. (the "Investment Advisor") administers the assets
of the existing Portfolio of the Fund and has ultimate responsibility for
determining which securities will be selected as investments for the existing
Portfolio of the Fund. Louis Navellier, the President and CEO of the Investment
Advisor, refined the Modern Portfolio Theory investment strategy which is
applied in managing the assets of the current Portfolio. Louis Navellier sets
the strategies and guidelines for the current Portfolio and oversees the current
Portfolio Manager's activities. Louis Navellier and Alan Alpers are the
Portfolio Managers involved in the day-to-day investment activities of the
current Portfolio. Alan Alpers has been an analyst and portfolio manager for
Navellier & Associates, Inc. since 1989 and is responsible along with Mr.
Navellier for day-to-day management of over $1.5 billion in individual accounts
for Navellier & Associates, Inc. The Investment Advisor receives an annual
advisory fee, equal to 1.00% of the average daily net asset value of assets
under management for The American Tiger Top 20 Portfolio. The advisory fee for
the current Portfolio is payable monthly, based upon a percentage of that
Portfolio's average daily net assets.
DISTRIBUTION OF SHARES
Chatfield Dean & Co. (the "Distributor") acts as the sole underwriter for
the shares of the current Portfolio of the Fund. The Distributor is a
corporation owned by Chatfield Dean Holdings, Inc. The Distributor may sell
shares of the current Portfolio of the Fund directly to investors or shares may
be purchased through a network of broker-dealers selected by the Distributor.
The Distributor will compensate these selected dealers for shareholder services
by paying them directly, or by allowing them to receive annually all or a
portion of the 0.25% annual 12b-1 fee paid on the current Portfolio
HOW TO INVEST
Shares of the current Portfolio of the Fund are continuously offered for
sale by the Distributor and through selected broker-dealers. The daily purchase
price for the current Portfolio is the net asset value next computed after
receipt of your order. Initial purchases must be at least $2,000 ($500 in the
case of IRA and other retirement plans or qualifying group plans) and subsequent
investments must be $100 or more.
4
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RISK FACTORS
Investment in the Portfolio involves special risks and there can be no
guarantee of profitability. Some of those risks are briefly described here.
Because The American Tiger Top 20 Portfolio is allowed to invest up to 10% of
the Portfolio's assets in any single company and/or up to 25% in the companies
of any single industry, there is potentially a greater risk of loss or
fluctuation in value of this portfolio.
Some of the small cap securities which the current Portfolio may purchase
may be difficult to liquidate on short notice or, on occasion, only a portion of
the shares of a company in which the Investment Advisor intends to trade may be
available to be bought or sold by the current Portfolio. There can be no
assurance of profitability or of what the Portfolio's total annual operating
expenses will be. Investments, if any, in securities of foreign issuers may pose
greater risks. The Investment Advisor's investment style could result in above
average portfolio turnover which could result in higher brokerage expenses. As
with any equity fund, the investments may decline, resulting in a loss of value
to the shareholder. (For more detail, see "Risk Factors".)
5
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INVESTMENT OBJECTIVES AND POLICIES
INVESTMENT OBJECTIVE OF THE AMERICAN TIGER TOP 20 PORTFOLIO
THE INVESTMENT OBJECTIVE OF THE AMERICAN TIGER TOP 20 PORTFOLIO IS TO
ACHIEVE LONG TERM GROWTH OF CAPITAL PRIMARILY THROUGH INVESTMENTS IN STOCKS OF
COMPANIES WITH APPRECIATION POTENTIAL.
The American Tiger Top 20 Portfolio is a non-diversified Portfolio, which
means it may invest a larger than normal percentage of its total assets in the
equity (including convertible debt) securities of any one company or companies
which the Investment Advisor believes represents an opportunity for significant
capital appreciation. The Investment Advisor can invest up to 10% of the
Portfolio's assets in the securities of any single company or up to 25% of its
assets in securities issued by companies in any one industry. Since the
Investment Advisor can invest more of the Portfolio's assets in the stock of a
single company, this Portfolio should be considered to offer greater potential
for capital appreciation as well as greater risk of loss due to the potential
increased investment of assets in a single company. This Portfolio, because of
its non-diversification, also poses a greater potential for volatility. This
Portfolio should not be considered suitable for investors seeking current
income. This Portfolio may invest its assets in the securities of a broad range
of companies without restriction on their capitalization. Under normal
circumstances, The American Tiger Top 20 Portfolio will invest at least 65% of
its total assets in securities of companies. However, that projected minimum
percentage could be lowered during adverse market condi-tions or for defensive
purposes and is not a fundamental policy of the Portfolio. Securities of issuers
include, but are not limited to, common and preferred stock, and convertible
preferred stocks that are convertible into common stock. While this Portfolio
intends to operate as a non-diversified open end management investment company
for the purposes of the 1940 Act, it also intends to qualify as a regulated
investment company under the Internal Revenue Code ("Code"). As a
non-diversified investment company under the 1940 Act, the Fund may invest more
than 5% and up to 10% of its assets in the securities of any one issuer at the
time of purchase. However, for purposes of the Internal Revenue Code, as of the
last day of any fiscal quarter, this Portfolio may not have more than 25% of its
total assets invested in any one issuer, and, with respect to 50% of its total
assets, the Portfolio may not have more than 5% of its total assets invested in
any one issuer, nor may it own more than 10% of the outstanding voting
securities of any one issuer. These limitations do not apply to investments in
securities issued or guaranteed by the U.S. Government or its agencies or
instru-mentalities or the securities of investment companies that qualify as
regulated investment companies under the Code.
Investors in The American Tiger Top 20 Portfolio pay an initial sales charge
(load) and pay an annual 0.25% fee ("12b-1 fee").
OTHER INVESTMENTS
The American Tiger Top 20 Portfolio may, for temporary defensive purposes or
to maintain cash or cash equivalents to meet anticipated redemptions, also
invest in debt securities and money market funds if, in the opinion of the
Investment Advisor, such investment will further the cash needs or temporary
defensive needs of the Portfolio. In addition, when the Investment Advisor feels
that market or other conditions warrant it, for temporary defensive purposes,
the current Portfolio may retain cash or invest all or any portion of its assets
in cash equivalents, including money market mutual funds. Under normal
conditions, The American Tiger Top 20 Portfolio's holdings in such non-equity
securities should not exceed 35% of the total assets of the Portfolio. If the
current Portfolio's assets, or a portion thereof, are retained in cash or money
market funds or money market mutual funds, such cash will, in all probability,
be deposited in interest-bearing or money market accounts or Rushmore's money
market mutual funds. Rushmore Trust & Savings, FSB is also the Fund's Transfer
Agent and Custodian. Cash deposits by the Fund in interest bearing instruments
issued by Rushmore Trust & Savings ("Transfer Agent") will only be deposited
with the Transfer Agent if its interest rates, terms, and security are equal to
or better than could
6
<PAGE>
be received by depositing such cash with another savings institution. Money
market investments have no FDIC protection and deposits in Rushmore Trust &
Savings accounts have only $100,000 protection.
It is anticipated that, for the current Portfolio, all of its investments in
corporate debt securities (other than commercial paper) and preferred stocks
will be represented by debt securities and preferred stocks which have, at the
time of purchase, a rating within the four highest grades as determined by
Moody's Investors Service, Inc. (Aaa, Aa, A, Baa) or by Standard & Poor's
Corporation (AAA, AA, A, BBB; securities which are rated BBB/Baa have
speculative characteristics). Although investment-quality securities are subject
to market fluctuations, the risk of loss of income and principal is generally
expected to be less than with lower quality securities. In the event the rating
of a debt security or preferred stock in which the Portfolio has invested drops
below investment grade, the Portfolio will promptly dispose of such investment.
When interest rates go up, the market value of debt securities generally goes
down and long-term debt securities tend to be more volatile than short term debt
securities.
In determining the types of companies which will be suitable for investment
by The American Tiger Top 20 Portfolio, the Investment Advisor will screen over
9,000 stocks and will take into account various factors and base its stock
selection on its own model portfolio theory concepts to select from the twenty
stocks which have the highest ranking based on the Investment Advisor's
analysis. The current Portfolio invests primarily in what the Investment Advisor
believes are undervalued common stocks believed to have long-term appreciation
potential. Stocks are selected on the basis of an evaluation of factors such as
earnings growth, expanding profit margins, market dominance and/or factors that
create the potential for market dominance, sales growth, and other factors that
indicate a company's potential for growth or increased value. There are no
limita-tions on The American Tiger Top 20 Portfolio as to the type, operating
history, or dividend paying record of companies or industries in which this
Portfolio may invest; the principal criteria for investment is that the
securities provide opportuni-ties for capital growth and that they rank in the
Investment Advisor's Top 20 highest rated investment opportunities at the time
the Investment Advisor makes its analysis, which analysis shall be made at least
monthly. The Portfolio will invest up to 100% of its capital in equity
securities selected for their growth or value potential. The Investment Advisor
will typically (but not always) purchase common stocks of issuers which have
records of profitability and strong earnings momentum. When selecting such
stocks for investment by the current Portfolio, the issuers may be lesser known
companies moving from a lower to a higher market share position within their
industry groups rather than the largest and best known companies in such groups.
The Investment Advisor, when investing for The American Tiger Top 20 Portfolio,
may also purchase common stocks of well known, highly researched, large
companies if the Investment Advisor believes such common stocks offer
opportunity for long-term capital appreciation.
7
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SPECIAL INVESTMENT METHODS AND RISKS
REPURCHASE AGREEMENTS
The Fund may enter into repurchase agreements, by which the Fund purchases a
security and obtains a simultaneous commitment from the seller (a bank or, to
the extent permitted by the Investment Company Act of 1940, as amended (the
"1940 Act"), a recognized securities dealer) to repurchase the security at an
agreed-upon price and date (usually seven days or less from the date of original
purchase). The resale price is in excess of the purchase price and reflects an
agreed-upon market rate unrelated to the coupon rate on the purchased security.
Such transactions afford the Fund the opportuniloty to earn a return on
temporarily available cash. Although the underlying security may be a bill,
certificate of indebtedness, note or bond issued by an agency, authority or
instrumentality of the U.S. Government, the obligation of the seller is not
guaranteed by the U.S. Government and there is a risk that the seller may fail
to repurchase the underlying security. In such event, the Fund would attempt to
exercise rights with respect to the underlying security, including possible
disposition in the market. However, the Fund may be subject to various delays
and risks of loss, including (a) possible declines in the value of the
underlying security during the period while the Fund seeks to enforce its rights
thereto and (b) inability to enforce rights and the expenses involved in
attempted enforcement.
LOANS OF PORTFOLIO SECURITIES
The Fund may lend some or all of its portfolio securities to broker-dealers.
Securities loans are made to broker-dealers pursuant to agreements requiring
that loans be continuously secured by collateral in cash or U.S. Government
securities at least equal at all times to the market value of the securities
lent. The borrower pays to the Fund an amount equal to any dividends or interest
received on the securities lent. When the collateral is cash, the Fund may
invest the cash collateral in interest-bearing, short-term securities. When the
collateral is U.S. Government securities, the Fund usually receives a fee from
the borrower. Although voting rights or rights to consent with respect to the
loaned securities passed to the borrower, the Fund retains the right to call the
loans at any time on reasonable notice, and it will do so in order that that
securities may be voted by the Fund if the holders of such securities are asked
to vote upon or consent to matters materially affecting the investment. The Fund
may also call such loans in order to sell the securities involved. The risks in
lending portfolio securities, as with other extensions of credit, include
possible delay in recovery of the securities or possible loss of rights in the
collateral should the borrower fail financially. However, such loans will be
made only to broker-dealers that are believed by the Investment Advisor to be of
relatively high credit standing.
8
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INVESTMENT RESTRICTIONS
The American Tiger Top 20 Portfolio can invest up to 10% of its assets in
securities of a single issuer and can invest up to 25% of its assets in
securities of companies in a single industry. The American Tiger Top 20
Portfolio may not make investments in real estate or commodities or commodity
contracts, including futures contracts, but may purchase securities of issuers
which deal in real estate or commodities. The American Tiger Top 20 Portfolio is
prohibited from investing in or selling puts, calls, straddles (or any
combination thereof). The American Tiger Top 20 Portfolio is prohibited from
investing in derivatives. The American Tiger Top 20 Portfolio may borrow money
only from banks for temporary or emergency (not leveraging) purposes provided
that, after each borrowing, there is an asset coverage in the borrowing
Portfolio of at least 300%. The American Tiger Top 20 Portfolio will not
purchase securities if the amount of borrowing by such Portfolio exceeds 5% of
total assets of such Portfolio. In order to secure any such borrowing, the
borrowing Portfolio may pledge, mortgage, or hypothecate up to 10% of the market
value of the assets of the Portfolio. The investment by The American Tiger Top
20 Portfolio in securities, including American Depository Receipts, of issuers
or any govern-mental entity or political subdivision thereof, located,
incorporated or organized outside of the United States is limited to 25% of the
net asset value of the Portfolio, provided that no such foreign securities may
be purchased unless they are traded on United States securities markets.
The Fund may not purchase for The American Tiger Top 20 Portfolio
"restricted securities" (as defined in Rule 144(a)(3) of the Securities Act of
1933) if, as a result of such purchase, more than 10% of the net assets (taken
at market value) of such Portfolio would be invested in such securities nor will
the Fund invest in illiquid or unseasoned securities if as a result of such
purchase more than 5% of the net assets of such portfolio would be invested in
either illiquid or unseasoned securities. The Board of Trustees will determine
whether these securities are liquid and will monitor liquidity on an ongoing
basis.
In addition to the investment restrictions described above, the investment
program of each Portfolio is subject to further restrictions which are described
in the Statement of Additional Information. The restrictions for each Portfolio
are fundamental and may not be changed without shareholder approval.
9
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RISK FACTORS
LACK OF OPERATING HISTORY
The American Tiger Top 20 Portfolio is a newly organized investment company
portfolio which went effective September 30, 1998. The Investment Advisor was
organized on May 28, 1993. Although the Investment Advisor sub-contracts a
substantial portion of its responsibilities for administrative services of the
Fund's operations to various agents, including the Transfer Agent and the
Custodian, the Investment Advisor still has overall responsibility for the
administration of each of the Portfolios and oversees the administrative
services performed by others as well as servicing customer's needs and, along
with each Portfolio's Trustees, is responsible for the selection of such agents
and their oversight. The Investment Advisor also has overall responsibility for
the selection of securities for investment for The American Tiger Top 20
Portfolio. The owner of the Investment Advisor has been in the business of
rendering advisory services to significant pools of capital such as retirement
plans and large investors since 1987.
The owner of the Investment Advisor is also the owner of another investment
advisory firm, Navellier & Associates Inc., which presently manages over $1.5
billion in investor funds. The owner of the Investment Advisor is also the owner
of another investment advisory firm, Navellier Fund Management, Inc., and
controls other investment advisory entities which manage assets and/or act as
sub-advisors, all of which firms employ the same basic modern portfolio theories
and select many of the same over-the-counter stocks and other securities which
the Investment Advisor intends to employ and invest in while managing the
Portfolios of the Fund. Because many of the over-the-counter and other
securities in which the Investment Advisor intends to, or may invest, have a
smaller number of shares available to trade than larger capitalized companies,
lack of shares available at any given time may result in The American Tiger Top
20 Portfolio of the Fund not being able to purchase or sell all shares which
Investment Advisor desires to trade at a given time or period of time, thereby
creating a potential liquidity problem which could adversely affect the
performance of The American Tiger Top 20 Portfolio. Since the Investment Advisor
will be trading on behalf of the Portfolio of the Fund in some or all of the
same securities at the same time that Navellier & Associates Inc., Navellier
Fund Management, Inc., other Navellier controlled investment entities are
trading, the potential liquidity problem could be exacerbated. In the event the
number of shares available for purchase or sale in a security or securities is
limited and therefore the trade order cannot be fully executed at the time it is
placed, i.e., where the full trade orders of Navellier & Associates Inc.,
Navellier Fund Management, Inc., and other Navellier controlled investment
entities and the Fund cannot be completed at the time the order is made,
Navellier & Associates, Inc., and the other Navellier controlled investment
entities and the Investment Advisor will allocate their purchase or sale orders
in proportion to the dollar value of the order made by the other Navellier
entities, and the dollar value of the order made by the Fund. For example, if
Navellier & Associates Inc., and Navellier Fund Management, Inc., each place a
$25,000 purchase order and Investment Advisor on behalf of the Fund places a
$50,000 purchase order for the same stock and only $50,000 worth of stock is
available for purchase, the order would be allocated $12,500 each of the stock
to Navellier & Associates Inc., and Navellier Fund Management, Inc., and $25,000
of the stock to the Fund. As the assets of each Portfolio of the Fund increase
the potential for shortages of buyers or sellers increases, which could
adversely affect the performance of the various Portfolios. While the Investment
Advisor generally does not anticipate liquidity problems (i.e., the possibility
that the Portfolio cannot sell shares of a company and therefore the value of
those shares drops) unless the Fund has assets in excess of two billion dollars
(although liquidity problems could still occur when the Fund has assets of
substantially less than two billion dollars), each investor is being made aware
of this potential risk in liquidity and should not invest in the Fund if he,
she, or it is not willing to accept this potentially adverse risk, and by
investing, acknowledges that he, she or it is aware of the risks.
An investment in shares of The American Tiger Top 20 Portfolio of the Fund
involves certain speculative considerations. There can be no assurance that The
American Tiger Top 20 Portfolio's objectives will be achieved or that the value
of the investment will increase. An investment in shares of The
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American Tiger Top 20 Portfolio may also involve a higher degree of risk than an
investment in shares of a more traditional open-end diversified investment
company because The American Tiger Top 20 Portfolio may invest up to 10% of its
assets in the securities of any single issuer and up to 25% of its assets in the
securities of any single industry, thereby potentially creating greater
volatility or increasing the chance of losses. As a non-diversified investment
Portfolio, The American Tiger Top 20 Portfolio may be subject to greater
fluctuation in the total market value of such Portfolio, and economic, political
or regulatory developments may have a greater impact on the value of this
Portfolio than would be the case if this Portfolio were diversified among a
greater number of issuers. The American Tiger Top 20 Portfolio intends to comply
with the diversification and other requirements applicable to regulated
investment companies under the Internal Revenue Code.
All securities in which the Fund's Portfolio may invest are inherently
subject to market risk, and the market value of the Fund's investments will
fluctuate. From time to time the Fund may choose to close a portfolio or
portfolios to new investors.
INVESTING IN SECURITIES OF FOREIGN ISSUERS
Investments in foreign securities (those which are traded principally in
markets outside of the United States), particularly those of non-governmental
issuers, involve considerations which are not ordinarily associated with
investing in domestic issuers. These considerations include, among others,
changes in currency rates, currency exchange control regulations, the
possibility of expropriation, the unavailability of financial information, the
difficulty of interpreting financial information prepared under laws applicable
to foreign securities markets, the impact of political, social, or diplomatic
developments, difficulties in invoking legal process abroad, and the difficulty
of assessing economic trends in foreign countries. Furthermore, issuers of
foreign securities are subject to different, and often less comprehensive,
accounting, reporting and disclosure requirements than domestic issuers. The
laws of some foreign countries may limit a Fund's ability to invest in
securities of certain issuers located in those countries. The securities of some
foreign issuers and securities traded principally in foreign securities markets
are less liquid and at times more volatile than securities of comparable U.S.
issuers and securities traded principally in U.S. securities markets. Foreign
brokerage commissions and other fees are also generally higher than those
charged in the United States. There are also special tax considerations which
apply to securities of foreign issuers and securities traded principally in
foreign securities markets.
The risks of investing in foreign securities may be intensified in the case
of investments in emerging markets or countries with limited or developing
capital markets. Prices of securities of companies in emerging markets can be
significantly more volatile than prices of securities of companies in the more
developed nations of the world, reflecting the greater uncertainties of
investing in less developed markets and economies. In particular, countries with
emerging markets may have relatively unstable governments, present the risk of
nationalization of businesses, restrictions on foreign ownership, or
prohibitions of repatriation of assets, and may have less protection of property
rights than more developed countries. The economies of countries with emerging
markets may be predominantly based on only a few industries or dependent on
revenues from particular commodities or on international aid or development
assistance, may be highly vulnerable to changes in local or global trade
conditions, and may suffer from extreme and volatile debt burdens or inflation
rates. Local securities markets may trade a small number of securities and may
be unable to respond effectively to increases in trading volume, potentially
making prompt liquidation of substantial holdings difficult or impossible at
times. Consequently, securities of issuers located in countries with emerging
markets may have limited marketability and may be subject to more abrupt or
erratic price movements. Also, such local markets typically offer less
regulatory protections for investors.
While to some extent the risks to the Fund of investing in foreign
securities may be limited, since The American Tiger Top 20 Portfolio may not
invest more than 25% of its net asset value in such securities and
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such Portfolio of the Fund may only invest in foreign securities which are
traded in the United States securities markets, the risks nonetheless exist.
The Investment Advisor will use the same basic selection criteria for
investing in foreign securities as it uses in selecting domestic securities as
described in the Investment Objectives and Policies section of this Prospectus.
NET ASSET VALUE
The net asset value of The American Tiger Top 20 Portfolio is determined by
adding the values of all securities and other assets of that specific Portfolio,
subtracting liabilities, and dividing by the number of outstanding shares of
that Portfolio. (See "Purchase and Pricing of Shares--Valuation of Shares" and
the Statement of Additional Information.)
PORTFOLIO TURNOVER
The Portfolio turnover rate for The American Tiger Top 20 Portfolio is
unknown since this is a newly organized Portfolio which only began operations on
September 30, 1998. The Investment Advisor estimates that the portfolio turnover
rate for The American Tiger Top 20 Portfolio will not exceed 300% per annum.
However, this is not a restriction on the Investment Advisor and if in the
Investment Advisor's judgment a higher annual portfolio turnover rate is
required in order to attempt to achieve a higher overall Portfolio performance,
then the Investment Advisor is permitted to do so. However, high portfolio
turnover (100% or more) will result in increased brokerage commissions, dealer
mark-ups, and other transaction costs on the sale of securities and on
reinvestment in other securities and could therefore adversely affect Portfolio
performance. To the extent that increased portfolio turnover results in sales at
a profit of securities held less than three months, the Fund's ability to
qualify as a "regulated investment company" under the Internal Revenue Code may
be affected. (See the Statement of Additional Information, "Taxes".)
SPECIAL RISK CONSIDERATIONS RELATING TO SECURITIES OF THE PORTFOLIO
For a description of certain other factors, including certain risk factors,
which investors should consider relating to the securities in which the
Portfolio will invest, see "Risk Factors".
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PERFORMANCE
From time to time the Fund may include the performance history of any
Portfolio (and if appropriate, the performance history of the Investment Advisor
and/or the Portfolio Manager in managing comparable asset accounts) in
advertisements, sales literature, or reports to prospective shareholders.
The "total return" of each Portfolio refers to the average annual compounded
rate of return of the Portfolio over some representative period that would
equate an initial payment of $1,000 at the beginning of a stated period to the
ending redeemable value of the investment, after giving effect to the
reinvestment of all dividends and distributions and deductions of expenses
during the period.
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MANAGEMENT OF THE FUND
THE BOARD OF TRUSTEES
The Fund's Board of Trustees directs the business and affairs of the current
Portfolio of the Fund and supervises the Investment Advisor, Distributor,
Transfer Agent and Custodian, as described below.
THE INVESTMENT ADVISOR
Navellier Management, Inc. acts as the Investment Advisor to the only
current Portfolio of the Fund. The Investment Advisor is registered as an
investment adviser under the Investment Advisors Act of 1940. The Investment
Advisor is responsible for selecting the securities which will constitute the
pool of securities which will be selected for investment for The American Tiger
Top 20 Portfolio. Pursuant to a separate Administrative Services Agreement, the
Investment Advisor provides The American Tiger Top 20 Portfolio with certain
administrative services, including accounting and bookkeeping services and
supervising the Custodian's and Transfer Agent's activities and The American
Tiger Top 20 Portfolio's compliance with its reporting obligations. The
Investment Advisor may sub-contract for the performance of such services by the
Custodian, Transfer Agent, or others and payment for such sub-contracted
services should be paid by the Investment Advisor out of its fees under the
Administrative Services Agreement. The Investment Advisor also provides each
Portfolio of the Fund with a continuous investment program based on its
investment research and management with respect to all securities and
investments. The Investment Advisor will determine from time to time what
securities and other investments will be selected to be purchased, retained, or
sold by The American Tiger Top 20 Portfolio of the Fund.
The Investment Advisor is owned and controlled by its sole shareholder,
Louis G. Navellier (a 100% stockholder). Louis Navellier is, and has been, in
the business of rendering investment advisory services to significant pools of
capital since 1987.
For information regarding the Fund's expenses and the fees paid to the
Investment Advisor see "Expenses of the Fund".
CONTROL PERSONS AND PRINCIPAL HOLDERS OF SECURITIES
On September 3, 1998, in order to fulfill the requirements of Section
14(a)(1) of the Investment Company Act of 1940, one hundred percent (100%) of
the issued and outstanding shares of the only existing Portfolio of the Fund
(The American Tiger Top 20 Portfolio) was subscribed to for purchase by Louis
Navellier under an agreement dated September 3, 1998. Such subscription was made
for an aggregate of $100,000 allocated 100% for the Portfolio (to purchase
10,000 shares).
THE DISTRIBUTOR
Chatfield Dean & Co. acts as the Fund's Distributor and is registered as a
broker-dealer under the Securities Exchange Act of 1934 and is a member of the
National Association of Securities Dealers ("NASD"). The Distributor renders its
services to the Fund pursuant to a distribution agreement under which it serves
as the principal underwriter of the shares of each existing Portfolio of the
Fund. The Distributor may sell certain of the Fund's Portfolio shares by direct
placements. Through a network established by the Distributor, each of the Fund's
Portfolio shares may also be sold through selected broker-dealers. (For
information regarding the Fund's expenses and the fees it pays to the
Distributor, see "Expenses of the Fund" following.)
THE CUSTODIAN AND THE TRANSFER AGENT
Rushmore Trust & Savings, FSB, 4922 Fairmont Avenue, Bethesda, Maryland,
20814, telephone: (301) 657-1510 or (800) 622-1386, is Custodian for the Fund's
securities and cash and Transfer Agent for the Fund shares. The Distributor
shall be responsible for the review of applications in order to guarantee that
all requisite and statistical information has been provided with respect to the
establishment of accounts.
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EXPENSES OF THE FUND
GENERAL
The American Tiger Top 20 Portfolio is responsible for the payment of its
own expenses. These expenses are deducted from the Portfolio's investment income
before dividends are paid. These expenses include, but are not limited to: fees
paid to the Investment Advisor, the Custodian and the Transfer Agent; Trustees'
fees; taxes; interest; brokerage commissions; organization expenses; securities
registration ("blue sky") fees; legal fees; auditing fees; printing and other
expenses which are not directly assumed by the Investment Advisor under its
investment advisory or expense reimbursement agreements with the Fund. General
expenses which are not associated directly with a specific Portfolio (including
fidelity bond and other insurance) are allocated to each Portfolio based upon
their relative net assets. The Investment Advisor may, but is not obligated to,
from time to time advance funds, or directly pay, for expenses of the Fund and
may seek reimbursement of or waive reimbursement of those advanced expenses.
COMPENSATION OF THE INVESTMENT ADVISOR
The Investment Advisor receives an annual 1.00% fee for investment
management of The American Tiger Top 20 Portfolio The fee is payable monthly,
based upon the Portfolio's average daily net assets. The Investment Advisor is
entitled to reimbursement for operating expenses it advances for the Fund.
DISTRIBUTION PLAN
THE DISTRIBUTION PLAN FOR THE AMERICAN TIGER TOP 20 PORTFOLIO
The American Tiger Top 20 Portfolio has adopted a Plan pursuant to Rule
12b-1 under the 1940 Act (the "Plan"), whereby such Portfolio compensates
Distributor or others in the amount of 0.25% per annum of the average daily net
assets of such Portfolio for expenses incurred and services rendered for the
promotion and distribution of the shares such Portfolio of the Fund, including,
but not limited to, the printing of prospectuses, statements of additional
information and reports used for sales purposes, expenses (including personnel
of Distributor) of preparation of sales literature and related expenses,
advertisements and other distribution-related expenses, including a prorated
portion of Distributor's overhead expenses attributable to the distribution of
such particular portfolio's shares. Such payments are made monthly. The 12b-1
fee includes, in addition to promotional activities, amounts such Portfolio pays
to Distributor or others as a service fee to compensate such parties for
personal services provided to shareholders of such Portfolio and/or the
maintenance of shareholder accounts. The total amount of 12b-1 fees paid for
such personal services and promotional services for such portfolio shall be
0.25% per year of the average daily net assets of such Portfolio. The
Distributor can keep all of said 12b-1 fees it receives to the extent it is not
required to pay others for such services. Such Rule 12b-1 fees are made pursuant
to the distribution plan and distribution agreements entered into between such
service providers and Distributor or such Portfolio directly. The 12b-1 Plan for
such Portfolio also covers payments by the Distributor and Investment Advisor to
the extent such payments are deemed to be for the financing of any activity
primarily intended to result in the sale of shares issued by such Portfolio
within the context of Rule 12b-1. The payments under the 12b-1 Plan for such
Portfolio are included in the maximum operating expenses which may be borne by
such Portfolio. Payments under the 12b-1 Plan for such Portfolio may exceed
actual expenses incurred by the Distributor, Investment Advisor or others.
BROKERAGE COMMISSIONS
The Investment Advisor may select selected broker-dealers to execute
portfolio transactions for the current Portfolio of the Fund, provided that the
commissions, fees, or other remuneration received by such party in exchange for
executing such transactions are reasonable and fair compared to those paid to
other brokers in connection with comparable transactions. In addition, when
selecting broker-dealers for Fund portfolio transactions, the Investment Advisor
may consider the record of such broker-dealers with respect to the sale of
shares of the Fund. (See the Statement of Additional Information.)
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REPORTS AND INFORMATION
The Fund will distribute to the shareholders of the current Portfolio
semi-annual reports containing unaudited financial statements and information
pertaining to matters of such Portfolio of the Fund. An annual report containing
financial statements for such Portfolio, together with the report of the
independent auditors for such Portfolio of the Fund is distributed to
shareholders each year. Shareholder inquiries should be addressed to The
American Tiger Funds at Chatfield Dean & Co., 7935 East Prentice Avenue, Suite
200, Greenwood Village, Colorado 80111; 800-723-3326 or to the Transfer Agent,
Rushmore Trust & Savings, FSB, 4922 Fairmont Avenue, Bethesda, Maryland, 20814,
Telephone: (301) 657-1510 or (800) 622-1386.
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DESCRIPTION OF SHARES
The Fund is a Delaware business trust organized on September 4, 1998. The
Declaration of Trust permits the Trustees to issue an unlimited number of shares
of beneficial interest. The Board of Trustees has the power to designate one or
more classes ("Portfolios") of shares of beneficial interest and to classify or
reclassify any unissued shares with respect to such classes. Presently the Fund
is offering shares of one Portfolio--The American Tiger Top 20 Portfolio, which
is described above.
The shares of The American Tiger Top 20 Portfolio, when issued, are fully
paid and non-assessable, are redeemable at the option of the holder, are fully
transferable, and have no conversion or preemptive rights. Shares are also
redeemable at the option of such Portfolio of the Fund when a shareholder's
investment, as a result of redemptions in the Fund, falls below the minimum
investment required by the Fund (see "Redemption of Shares"). Each share of the
Portfolio is equal as to earnings, expenses, and assets of the Portfolio and, in
the event of liquidation of the Portfolio, is entitled to an equal portion of
all of the Portfolio's net assets. Shareholders of such Portfolio of the Fund
are entitled to one vote for each full share held and fractional votes for
fractional shares held, and will vote in the aggregate and not by Portfolio
except as other-wise required by law or when the Board of Trustees determines
that a matter to be voted upon affects only the interest of the shareholders of
a particular Portfolio. Voting rights are not cumulative, so that the holders of
more than 50% of the shares voting in any election of Trustees can, if they so
choose, elect all of the Trustees. While the Fund is not required, and does not
intend, to hold annual meetings of shareholders, such meetings may be called by
the Trustees at their discretion, or upon demand by the holders of 10% or more
of the outstanding shares of such Portfolio for the purpose of electing or
removing Trustees.
All shares (including reinvested dividends and capital gain distributions)
are issued or redeemed in full or fractional shares rounded to the second
decimal place. No share certificates will be issued. Instead, an account will be
established for each shareholder and all shares purchased will be held in
book-entry form by the Fund.
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DIVIDENDS AND DISTRIBUTIONS
All dividends and distributions with respect to the shares of The American
Tiger Top 20 Portfolio will be payable in shares at net asset value or, at the
option of the shareholder, in cash. Any shareholder who purchases shares of the
Portfolio prior to the close of business on the record date for a dividend or
distribution will be entitled to receive such dividend or distribution.
Dividends and distributions (whether received in shares or in cash) are treated
either as return of capital, ordinary income or long-term capital gain for
federal income tax purposes. Between the record date and the cash payment date,
such Portfolio retains the use and benefits of such monies as would be paid as
cash dividends.
The American Tiger Top 20 Portfolio will distribute all of its net
investment income and net realized capital gains, if any, annually in December.
If a cash payment is requested with respect to the Portfolio, a check will
be mailed to the shareholder. Unless otherwise instructed, the Transfer Agent
will mail checks or confirmations to the shareholder's address of record.
The federal income tax laws impose a four percent (4%) nondeductible excise
tax on each regulated investment company with respect to the amount, if any, by
which such company does not meet distribution requirements specified in the
federal income tax laws. The American Tiger Top 20 Portfolio intends to comply
with the distribution requirements and thus does not expect to incur the four
percent (4%) nondeductible excise tax, although the imposition of such excise
tax may possibly occur.
Shareholders will have their dividends and/or capital gain distributions
reinvested in additional shares of The American Tiger Top 20 Portfolio unless
they elect in writing to receive such distributions in cash. Shareholders whose
shares are held in the name of a broker or nominee should contact such broker or
nominee to determine whether they want dividends reinvested or distributed.
The automatic reinvestment of dividends and distributions will not relieve
participants of any income taxes that may be payable (or required to be
withheld) on dividends and distributions. (See "Taxes" following.)
In the case of foreign participants whose dividends are subject to U.S.
income tax withholding and in the case of any participants subject to 31%
federal backup withholding, the Transfer Agent will reinvest dividends after
deduction of the amount required to be withheld.
Experience may indicate that changes in the automatic reinvestment of
dividends are desirable. Accordingly, the Fund reserves the right to amend or
terminate this provision as applied to any dividend or distribution paid
subsequent to written notice of the change sent to shareholders at least 90 days
before the record date for such dividend or distribution.
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TAXES
FEDERAL TAXES
Each Portfolio of the Fund is a separate taxpayer and intends to meet the
requirements of Subchapter M of the Internal Revenue Code of 1986 (relating to
regulated investment companies) with respect to diversification of assets,
sources of income, and distributions of taxable income and will elect to be
taxed as a regulated investment company for federal income tax purposes.
Because each Portfolio of the Fund intends to distribute all of its net
investment income and net realized capital gains at least annually, it is not
expected that any Portfolio of the Fund will be required to pay federal income
tax for any year throughout which it was a regulated investment company nor, for
this reason, is it expected that any Portfolio will be required to pay the 4%
federal excise tax imposed on regulated investment companies that fail to
satisfy certain minimum distribution requirements. However, the possibility of
federal or state income tax and/or imposition of the federal excise tax does
exist.
If a Portfolio pays a dividend in January of any year which was declared in
the last three months of the previous year and was payable to shareholders of
record on a specified date in such a month, the dividend will be treated as
having been paid and received in the previous year.
Dividends (other than capital gains dividends) will be taxable to
shareholders as ordinary income, whether received in shares or cash and will, in
the case of corporate shareholders, generally qualify for the dividends-received
deduction to the extent paid out of qualifying dividends received by the
Portfolio.
Capital gains dividends will ordinarily be taxable to shareholders as
long-term capital gain, regardless of how long they have held their shares. A
dividend is a capital gains dividend if it is so designated by the Portfolio and
is paid out of the Portfolio 's net capital gain (that is, the excess of the
Portfolio's net long-term capital gain over its net short-term capital loss).
Any dividends paid shortly after a purchase by an investor may have the
effect of reducing the per share net asset value of the investor's shares by the
per share amount of dividends. Furthermore, such dividends, although in effect a
return of capital, are subject to federal income taxes. Therefore, prior to
purchasing shares of the Fund, the investor should carefully consider the impact
of dividends, including capital gains distributions, which are expected to be or
have been announced.
If the Fund redeems some or all of the shares held by any shareholder, the
transaction will generally be treated as a sale or exchange unless the
redemption fails to substantially reduce the shareholder's percentage ownership
interest in the Fund (determined for this purpose using certain specific rules
of constructive ownership). If a redemption of shares is not treated as a sale
or exchange, the amount paid for the shares will be treated as a dividend.
If a redemption is treated as a sale or exchange, the shareholder will
generally recognize gain or loss measured by the difference between the
redemption price and the basis of the shares. This gain or loss will generally
be treated as capital gain (long-term or short-term, depending upon the holding
period for the redeemed shares).
Shareholders will be subject to information reporting with respect to
dividends and redemptions, and may be subject to backup withholding with respect
to dividends at the rate of 31% unless (a) they are corporations or come within
other exempt categories or (b) they provide correct taxpayer identification
numbers, certify as to no loss of exemption from backup withholding, and
otherwise comply with applicable requirements of the law relating to backup
withholding. Any amounts paid as backup withholding will be creditable against
the federal income tax liabilities of the affected shareholders.
The Fund may pay taxes to foreign countries with respect to dividends or
interest it receives from foreign issuers or from domestic issuers that derive a
substantial amount of their revenues in foreign
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countries, or such taxes may be withheld at the source by such issuers. The Fund
will generally be entitled to deduct such taxes in computing its taxable income.
STATE AND LOCAL TAXES
Each Portfolio of the Fund may be subject to state or local taxation in
jurisdictions in which it may be deemed to be doing business. Taxable income of
each Portfolio of the Fund and its shareholders for state and local purposes may
be different from taxable income calculated for federal income tax purposes.
The foregoing is a general summary of possible federal, state and foreign
tax consequences of investing in The American Tiger Funds to shareholders who
are U.S. citizens or U.S. corporations. Each prospective investor is advised to
consult his or her tax adviser for advice as to the federal, state, local and
foreign taxation which may be applicable to such investor in connection with an
investment in the Fund.
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PURCHASE AND PRICING OF SHARES
PURCHASE OF SHARES
The Fund's portfolio shares are sold to the general public on a continuous
basis through the Distributor, the Transfer Agent and the Distributor's network
of broker-dealers.
PURCHASE BY MAIL
Investments in the Fund can be made directly to the Distributor or through
the transfer agent-- Rushmore Trust & Savings, FSB--or through selected
securities dealers who have the responsibility to transmit orders promptly and
who may charge a processing fee.
TO INVEST BY MAIL: Fill out an application designating which Portfolio you
are investing in and make a check payable to "The American Tiger Funds." Mail
the check along with the application to:
The American Tiger Funds
c/o Rushmore Trust & Savings, FSB
4922 Fairmont Avenue
Bethesda, MD 20814
Purchases by check will be credited to an account as of the date the
Portfolio's net asset value is next determined after receipt of payment and a
properly completed account application. Foreign checks will not be accepted. Be
certain to specify which Portfolio or Portfolios you are investing in.
Purchase orders which do not specify the Portfolio in which an investment is
to be made will be returned. (See "Purchase and Pricing of Shares--General
Purchasing Information".) Net asset value per share is calculated once daily as
of 4 p.m. E.S.T. on each business day. (See "Purchase and Pricing of
Shares--Valuation of Shares".)
THE AMERICAN TIGER FUNDS' PORTFOLIOS
The shares of The American Tiger Top 20 Portfolio are sold at their net
asset value per share next determined after an order in proper form (i.e., a
completely filled out application form) is received by the Transfer Agent.
If an order for shares of the Portfolio is received by the Transfer Agent by
4:00 p.m. on any business day, such shares will be purchased at the net asset
value determined as of 4:00 p.m. New York Time on that day. Otherwise, such
shares will be purchased at the net asset value determined as of 4:00 p.m New
York Time on the next business day. However, orders received by the Transfer
Agent from the Distributor or from dealers or brokers after the net asset value
is determined that day will receive such net asset value price if the orders
were received by the Distributor or broker or dealer from its customer prior to
such determination and were transmitted to and received by the Transfer Agent
prior to its close of business on that day (normally 4:00 p.m. New York Time).
Shares are entitled to receive any declared dividends on the day following the
date of purchase.
PURCHASES THROUGH SELECTED DEALERS
Shares purchased through Selected Dealers will be effected at the net asset
value next determined after the Selected Dealer receives the purchase order,
provided that the Selected Dealer transmits the order to the Transfer Agent and
the Transfer Agent accepts the order by 4:00 p.m. New York Time on the day of
determination. See "Valuation of Shares". If an investor's order is not
transmitted and accepted by 4:00 p.m. New York Time, the investor must settle
his or her entitlement to that day's net asset value with the Selected Dealer.
Investors may also purchase shares of the Fund by telephone through a Selected
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Dealer by having the Selected Dealer telephone the Transfer Agent with the
purchase order. Investors may be charged a transaction fee if they effect
transactions in Fund shares through a broker or agent.
Certain selected Dealers may effect transactions in shares of the Portfolios
through the National Securities Clearing Corporation's Fund/SERV system.
Purchases of shares through Selected Dealers not utilizing the National
Securities Clearing Corporation's Fund/SERV system will be effected when
received in proper form by the Transfer Agent, as described above, in the same
manner and subject to the same terms and conditions as are applicable to shares
purchased directly through the Transfer Agent. There is a 4.95% sales load
charged to the investor on purchases of the Fund's Portfolio, whether purchased
through a Selected Dealer or directly through the Transfer Agent; there is
however an ongoing Rule 12b-1 fee applicable to The American Tiger Top 20
Portfolio.
Shareholders who wish to transfer Fund shares from one broker-dealer to
another should contact the Fund's Transfer Agent at (800) 622-1386.
TO INVEST BY BANK WIRE: Request a wire transfer to:
Rushmore Trust & Savings FSB
4922 Fairmont Avenue
Bethesda, MD 20814
Routing Number: 055071084
For Account of: The American Tiger Funds
Account Number: 029385770
AFTER INSTRUCTING YOUR BANK TO TRANSFER MONEY BY WIRE, YOU MUST TELEPHONE
THE FUND AT (800) 622-1386 OR (301) 657-1510 BETWEEN 8:30 A.M. AND 4:00 P.M. NEW
YORK TIME AND TELL US THE AMOUNT YOU TRANSFERRED AND THE NAME OF THE BANK
SENDING THE TRANSFER. YOUR BANK MAY CHARGE A FEE FOR SUCH SERVICES. IF THE
PURCHASE IS CANCELLED BECAUSE YOUR WIRE TRANSFER IS NOT RECEIVED, YOU MAY BE
LIABLE FOR ANY LOSS THE FUND MAY INCUR.
Such wire should identify the name of the Portfolio, the account number, the
order number (if available), and your name.
TO INVEST BY AUTOMATIC MONTHLY INVESTMENT PLAN:
Shareholders may make automatic monthly purchases of a Portfolio's shares by
executing an automatic monthly withdrawal application authorizing his/her/its
bank to transfer money from his/her/its checking account to the Transfer Agent
for the automatic monthly purchase of shares of the Portfolio for the
shareholder. There is no charge by the Portfolio for this automatic monthly
investment plan and the shareholder can discontinue the service at any time.
GENERAL PURCHASING INFORMATION
The existing portfolio of the Fund, the American Tiger Top 20 Portfolio, has
established a minimum initial investment of $2,000 ($500 in the case of IRA and
other retirement plans or qualifying group plans) and $100 for subsequent
investments in such Portfolio. Orders for shares may be made by mail by
completing the Account Application included with this Prospectus and mailing the
completed application and the payment for shares to the Transfer Agent.
Documentation in addition to the information required by the Account Application
may be required when deemed appropriate by the Fund and/or the Transfer Agent
and the Account Application will not be deemed complete until such additional
information has been received. The Fund reserves the right to not accept an
applicant's proposed investment in any of the Fund's shares.
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<PAGE>
VALUATION OF SHARES
The net asset value of the shares of The American Tiger Top 20 Portfolio of
the Fund is determined once daily as of 4 p.m. New York Time, on days when the
New York Stock Exchange is open for trading. In the event that the New York
Stock Exchange or the national securities exchanges on which Portfolio stocks
are traded adopt different trading hours on either a permanent or temporary
basis, the Trustees of the Fund will reconsider the time at which net asset
value is to be computed. The net asset value is determined by adding the values
of all securities and other assets of the Portfolio, subtracting liabilities,
and dividing by the number of outstanding shares of the Portfolio. The price at
which a purchase is effected is based on the next calculation of net asset value
after the order is received.
In determining the value of the assets of each Portfolio, the securities for
which market quotations are readily available are valued at market value. Debt
securities (other than short-term obligations) are normally valued on the basis
of valuations provided by a pricing service when such prices are believed to
reflect the fair value of such securities. All other securities and assets are
valued at their fair value as determined in good faith by the Trustees, although
the actual calculations may be made by persons acting pursuant to the direction
of the Trustees.
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<PAGE>
REDEMPTION OF SHARES
GENERAL
A shareholder may redeem shares of each Portfolio at the net asset value
next determined after receipt of a notice of redemption in accordance with the
procedures set forth below and compliance with the further redemption
information and/or additional documentation requirements described in this
Section. As used in this Prospectus, the term "business day " refers to those
days on which stock exchanges trading stocks held by the Fund are open for
business. The Fund may change the following procedures at its discretion.
The shareholder will not be credited with dividends on those shares being
redeemed for the day on which the shares are redeemed by the Portfolio (but will
be credited with dividends on the day such shares were purchased). A check for
the proceeds of redemption will normally be mailed within seven days of receipt
of any redemption request received by the Transfer Agent. If shares to be
redeemed were purchased by check, the Fund may delay transmittal of redemption
proceeds only until such times as it is reasonably assured that good payment has
been collected for the purchase of such shares, which may be up to 15 days from
purchase date. Such delays can be avoided by wiring Federal Funds in effecting
share purchases.
If a shareholder wishes to redeem his or her entire shareholdings in a
Portfolio, he or she will receive, in addition to the net asset value of shares,
all declared but unpaid dividends thereon. The net asset value of the shares may
be more or less than a shareholder's cost depending on the market value of the
Portfolio securities at the time of the redemption.
REDEMPTION BY MAIL
A shareholder may redeem shares by mail on each day that the New York Stock
Exchange is open by submitting a written redemption request to:
The American Tiger Funds
c/o Rushmore Trust & Savings, FSB
4922 Fairmont Avenue
Bethesda, MD 20814
The request for redemption should include the name of the Portfolio, the
account name and number, and should be signed by all registered owners of the
shares in the exact names in which they are registered. Each request should
specify the number or dollar amount of shares to be redeemed or that all shares
in the account are to be redeemed.
REDEMPTIONS BY TELEPHONE
If you have indicated on your Account Application that you wish to establish
telephone redemption privileges, you may redeem shares by calling the Transfer
Agent at 1-800-622-1386 by 4:00 p.m. New York Time on any day the New York Stock
Exchange is open for business.
If any account has more than one owner, the Transfer Agent may rely on the
instructions of any one owner. The American Tiger Top 20 Portfolio of the Fund
employs reasonable procedures in an effort to confirm the authenticity of
telephone instructions, which may include giving some form of personal
identification prior to acting on the telephone instructions. If these
procedures are not followed, the Fund and the Transfer Agent may be responsible
for any losses because of unauthorized or fraudulent instructions. By requesting
telephone redemption privileges, you authorize the Transfer Agent to act upon
any telephone instructions it believes to be genuine, (1) to redeem shares from
your account and (2) to mail or wire transfer the redemption proceeds. You
cannot redeem shares by telephone until 30 days after you have notified the
Transfer Agent of any change of address.
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<PAGE>
Telephone redemption is not available for shares held in IRAs. The Portfolio
may change, modify, or terminate its telephone redemption services at any time
upon 30 days' notice.
FURTHER REDEMPTION INFORMATION
Additional documentation (i.e., signature guarantee for redemptions in
excess of $1,000 or verification identification when redemption is by telephone)
regarding a redemption by any means may be required when deemed appropriate by
the Fund and/or the Transfer Agent, and the request for such redemption will not
be considered to have been received in proper form until such additional
documentation has been received. An investor should contact the Fund or the
Transfer Agent to inquire what, if any, additional documentation may be
required.
The Fund reserves the right to modify any of the methods of redemption upon
30 days' written notice to shareholders.
Due to the high cost of maintaining accounts of less than $2,000 ($500 for
IRA or other qualifying plan accounts), the Fund reserves the right to redeem
shares involuntarily in any such account at their then current net asset value.
Shareholders will first be notified and allowed 30 days to make additional share
purchases to bring their accounts to more than $2,000 ($500 for IRA or other
qualifying plan accounts). An account will not be redeemed involuntarily if the
balance falls below $2,000 ($500 for IRA or other qualifying plan accounts) by
virtue of fluctuations in net asset value rather than through investor
redemptions.
Under certain circumstances (i.e., when the applicable exchange is closed or
trading has been restricted, etc.), the right of redemption may be suspended or
the redemption may be satisfied by distribution of portfolio securities rather
than cash if a proper election pursuant to Rule 18F-1 of the Investment Company
Act has been made by the Fund. Information as to those matters is set forth in
the Statement of Additional Information.
Investors may redeem their shares and instruct the Fund or Transfer Agent,
in writing or by telephone, to either deposit the redemption proceeds in the
money market mutual fund--Fund for Government Investors, Inc.--a regulated
investment company custodied by Rushmore Trust & Savings, FSB, pending further
instructions as to the investor's desire to subsequently reinvest in the Fund or
the investor may direct some other disposition of said redemption proceeds.
OPTION TO MAKE SYSTEMATIC WITHDRAWALS
The owner of $25,000 or more worth of the shares of The American Tiger Top
20 Portfolio may provide for the payment from his/her account of any requested
dollar amount (but not less than $1,000) to him/her or his/her designated payee
monthly, quarterly, or annually. Shares will be redeemed on the last business
day of each month. Unless otherwise instructed, the Transfer Agent will mail
checks to the shareholder at his/her address of record. A sufficient number of
shares will be redeemed to make the designated payment.
25
<PAGE>
CERTAIN SERVICES PROVIDED TO SHAREHOLDERS
STATEMENTS OF ACCOUNT
Statements of Account for The American Tiger Top 20 Portfolio will be sent
to each shareholder at least quarterly.
DIVIDEND ELECTION
A shareholder may elect to receive dividends in shares or in cash. If no
election is made, dividends will automatically be credited to a shareholder's
account in additional shares of the Portfolio to which such dividend relates.
EXCHANGE PRIVILEGES
Shares of The American Tiger Top 20 Portfolio may be exchanged in the future
for the shares of another Portfolio, if any, of the Fund, at net asset value.
Exchanges among portfolios of the Fund may be made only in those states where
such exchanges may legally be made. The total value of shares being exchanged
must at least equal the minimum investment requirement of the Portfolio into
which they are being exchanged. Exchanges are made based on the net asset value
next determined of the shares involved in the exchange. Only one exchange in any
30-day period is permitted. The Fund reserves the right to restrict the
frequency or otherwise modify, condition, terminate, or impose charges upon the
exchange, upon 60 days' prior written notice to shareholders. Exchanges between
Portfolios will be subject to a $5 exchange fee after five (5) exchanges per
year. There is a limit of ten (10) exchanges per year. Exchanges will be
effected by the redemption of shares of the Portfolio held and the purchase of
shares of the other Portfolio. For federal income tax purposes, any such
exchange constitutes a sale upon which a gain or loss, if any, may be realized,
depending upon whether the value of the shares being exchanged is more or less
than the shareholder's adjusted cost basis. For this purpose, however, a
shareholder's cost basis may not include the sales charge, if any, if the
exchange is effectuated within 90 days of the acquisition of the shares.
Shareholders wishing to make an exchange should contact the Transfer Agent.
Exchange requests in the form required by the Transfer Agent and received by the
Transfer Agent prior to 4:00 p.m. New York Time will be effected at the next
determined net asset value.
26
<PAGE>
ADDITIONAL INFORMATION
The Statement of Additional Information, available upon request, without
charge from the Fund, provides a further discussion of certain sections of the
Prospectus and other infor-mation which may be of interest to certain investors.
This Prospectus and the Statement of Additional Information do not contain all
the information included in the Registration Statement filed with the Securities
and Exchange Commission with respect to the securities being sold, certain
portions of which have been omitted pursuant to the rules and regulations of the
Securities and Exchange Commission. The Registration Statement, including the
exhibits filed therewith, may be examined at the office of the Securities and
Exchange Commission in Washington, D.C.
Statements contained in this Prospectus as to the contents of any contract
or other document referred to are not necessarily complete, and, in each
instance, reference is made to the Statement of Additional Information and the
copy of such contract or other document filed as an exhibit to the Registration
Statement of which this Prospectus forms a part, each such statement being
qualified in all respects by such reference.
27
<PAGE>
ASSENT TO TRUST INSTRUMENT
Every Shareholder, by virtue of having purchased a Share or Interest shall
become a Shareholder and shall be held to have expressly assented and agreed to
be bound by the terms hereof.
28
<PAGE>
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- -------------------------------------------
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INVESTMENT ADVISOR
Navellier Management, Inc.
One East Liberty, Third Floor
Reno, NV 89501
(800) 887-8671
DISTRIBUTOR
Chatfield Dean & Co.
7935 East Prentice Avenue, Suite 200
Greenwood Village, Colorado 80111
800-723-3326
INDEPENDENT AUDITORS
Tait, Weller & Baker
Certified Public Accountants
8 Penn Center, Suite 800
Philadelphia, PA 19103-2108
(215) 979-8800
TRANSFER AGENT AND CUSTODIAN
Rushmore Trust & Savings, FSB
4922 Fairmont Avenue
Bethesda, MD 20814
(800) 622-1386
COUNSEL
Samuel Kornhauser
Law Offices of Samuel Kornhauser
155 Jackson Street, Suite 1807
San Francisco, CA 94111
(415) 981-6281
SALES INFORMATION
Chatfield Dean & Co.
7935 East Prentice Avenue, Suite 200
Greenwood Village, Colorado 80111
800-723-3326
SHAREHOLDER INQUIRIES
Rushmore Trust & Savings, FSB
4922 Fairmont Avenue
Bethesda, MD 20814
(800) 622-1386
THE AMERICAN TIGER FUNDS
SEPTEMBER 30, 1998
- -------------------------------------------
-------------------------------------------
- -------------------------------------------
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<PAGE>
THE AMERICAN TIGER FUNDS
MAIL APPLICATION & CHECKS TO:
The American Tiger Funds
c/o Rushmore Trust & Savings, FSB
4922 Fairmont Ave.
Bethesda, MD 20814
800-622-1386
NEW ACCOUNT APPLICATION FOR A RETIREMENT ACCOUNT APPLICATION CALL 800-723-3326
800-723-3326
REGISTRATION
/ /Individual
Use lines 1 & 3
/ /Joint Account with
Rights of Survivor
Lines 1, 2 & 3
/ /Joint Account with
Tenancy in Common
Lines 1, 2 & 3
/ /Gift to Minor
Lines 4 & 5
OR
/ /Corporations,
Partnerships,
Trusts & Others
Lines 6 & 7
1. Individual __________________________________________________________
First Name Initial Last Name
2. Joint Tenant __________________________________________________________
First Name Initial Last Name
Rights of survivor will be applied unless otherwise indicated
3. Social Security No. _______________________ Date of Birth __________________
S.S.# to be used for tax purposes
4. Uniform Gift to Minor ______________________________________________________
Custodian's Name / State
5. ____________________________________________________________________________
Minor's Name Minor's Social Security No. Date of Birth
6. ____________________________________________________________________________
Name of Corporation or Entity Tax ID Number
7. Registration Type: ___ Corporation ___ Partnership
___ Unincorporated Association ___ Trust - Date of Trust _______________
Please include a copy of the first and last pages of your trust agreement.
MAILING ADDRESS
COMPLETE IF DIFFERENT FROM
ABOVE ADDRESS LABEL
Street or P.O. Box ________________________________________________________
City _________________________ State __________ Zip _____________________
Telephone: Home _______________________ Work _______________________________
Your Residency: / / U.S. / / Resident Alien / / Non-Resident Alien
Specify Country __________________
INVESTMENT
MAKE CHECK PAYABLE TO:
THE AMERICAN TIGER FUNDS
PORTFOLIO AMOUNT
/ / American Tiger Top 20 Portfolio $________________________
/ / By check $ / / By wire $________________________
From Account No. ________________
Minimum initial investment is $2,000 ($500 for IRAs, call 800-622-1386 for an
IRA application). Make checks payable to The American Tiger Funds. Call
800-622-1386 for wiring instructions or see the prospectus.
DIVIDENDS
AND CAPITAL GAINS
DISTRIBUTIONS
/ / Reinvest dividends and capital gains.
/ / Reinvest dividends, pay capital gains.
/ / Pay dividends and capital gains in cash.
/ / Pay dividends, reinvest capital gains.
All dividends and capital gains distributions will be reinvested if no box is
checked. All distributions will be reinvested if a withdrawal plan is
elected.
INVESTOR FINANCIAL
& INVESTMENT INFO.
REQUIRED BY NASD
Annual Income: $ ______________________ Net Worth: $ ______________________
Investment Objective: / / Growth / / Value
<PAGE>
SHAREHOLDER
PRIVILEGES
Telephone/Expedited Redemption - PLEASE CHECK ALL THAT APPLY. These
privileges are subject to the terms set forth in the Prospectus.
/ / Yes, I would like to be able to redeem shares by telephone.
/ / Deposit redemption proceeds in the money market mutual fund, Fund for
Government Investors, Inc., custodied by Rushmore Trust & Savings, FSB.
/ / Wire redemption proceeds to: _______________________________________
Name of Bank
______________________________ ________________________________________
Type of Account Account Number
/ / Mail a check to my address indicated above.
SYSTEMATIC / / YES
WITHDRAWAL / / NO
PLAN
OPTIONAL
A Systematic Withdrawal Plan is available for accounts with an underlying
share value of $25,000 or more. If this plan is elected, all distributions
will be automatically reinvested. Minimum withdrawal is $1,000.
Amount of payment $ ______________________
Payments made: / / Monthly / / Quarterly / / Annually
Payments to commence the 2nd business day of: __________________________
Month, Year
If checks are to be sent to another address or paid to someone other than the
registered owner shown on application, please provide the following:
Name: _______________________________________________________________________
Address: ____________________________________________________________________
BROKER
INFORMATION
IF SHARES ARE BEING PURCHASED
THROUGH A SERVICE AGENT, AGENT
SHOULD COMPLETE THIS SECTION.
Firm ________________________________________________________________________
Mailing Address ___________________________ City ____________________________
State ____________________ Zip __________________ Phone _____________________
Dealer Code _________________ Office Code ______________ Rep. Number ________
Agent Name ____________________________ Agent Signature: ____________________
SIGNATURES
& CERTIFICATION
Confirmation of Account
Establishment: Soon after all
essential items are received
by the custodian, a
confirmation statement(s)
showing account number(s),
amount received, shares
purchased, and price paid per
share will be sent to the
registered shareholder.
Subsequent Payments: A new
application need not be
submitted with additional
payments to an existing
account if a current
application is on file with
the custodian. Subsequent
purchases should be identified
by account number and account
registration name.
I/We authorize Rushmore Trust & Savings, FSB, as custodian and transfer
agent for The American Tiger Funds, to honor any requests made in accordance
with the terms of this application, and I/we further affirm that, subject to
any limitations imposed by applicable law, neither Rushmore Trust & Savings,
FSB, nor The American Tiger Funds shall be held liable by me/us for any loss,
liability, cost, or expense for acting in accordance with this application,
or any section thereof. I/We understand that all of the shareholder options
described in this application are subject to the terms set forth in the
Prospectus.
I/WE CERTIFY THAT WE HAVE FULL RIGHT, POWER, AUTHORITY, AND LEGAL CAPACITY TO
PURCHASE AND REDEEM SHARES AND AFFIRM THAT I/WE HAVE RECEIVED AND READ THE
PROSPECTUS, AGREE TO ITS TERMS, AND HAVE NOT RELIED ON OR MADE MY/OUR
DECISION TO INVEST IN THE AMERICAN TIGER FUNDS ON ANY WRITTEN OR ORAL
INFORMATION OTHER THAN THE WRITTEN INFORMATION CONTAINED IN THE PROSPECTUS,
REGISTRATION STATEMENT AND STATEMENT OF ADDITIONAL INFORMATION. Under
penalties of perjury, I/we certify (i) that the number shown on this form is
my/our correct Social Security Number or Taxpayer Identification Number and
(ii) that (1) I/we are not subject to backup withholding either because I/we
have not been notified by the Internal Revenue Service that I/we are subject
to backup withholding as a result of a failure to report all interest or
dividends, or (2) the IRS has notified me/us that I am/we are no longer
subject to backup withholding. IF YOU HAVE BEEN NOTIFIED BY THE IRS THAT YOU
ARE CURRENTLY SUBJECT TO BACKUP WITHHOLDING STRIKE OUT PHRASE (2) ABOVE.
X __________________________________ X ___________________________________
Signature as it Date Joint Signature (if Date
appears on Line No. 1 applicable)
<PAGE>
PART B
THE AMERICAN TIGER FUNDS
STATEMENT OF ADDITIONAL INFORMATION
DATED SEPTEMBER 30, 1998
This Statement of Additional Information, which is not a prospectus,
should be read in conjunction with the Prospectus of The American Tiger Funds
(the "Fund"), dated September 30, 1998, a copy of which Prospectus may be
obtained, without charge, by contacting the Fund, at its mailing address c/o
Chatfield Dean, & Co., 7935 East Prentice Avenue, Suite 200, Greenwood
Village, Colorado 80111; Telephone: 800-723-3326
TABLE OF CONTENTS
GENERAL INFORMATION AND HISTORY. . . . . . . . . . . . . . . . . . . . . . 1
INVESTMENT OBJECTIVES AND POLICIES . . . . . . . . . . . . . . . . . . . . 1
TRUSTEES AND OFFICERS OF THE FUND. . . . . . . . . . . . . . . . . . . . . 5
CONTROL PERSONS AND PRINCIPAL HOLDERS OF SECURITIES. . . . . . . . . . . . 7
THE INVESTMENT ADVISOR, DISTRIBUTOR,
CUSTODIAN AND TRANSFER AGENT . . . . . . . . . . . . . . . . . . . . . . 8
BROKERAGE ALLOCATION AND OTHER PRACTICES . . . . . . . . . . . . . . . . . 12
CAPITAL STOCK AND OTHER SECURITIES . . . . . . . . . . . . . . . . . . . . 14
PURCHASE, REDEMPTION, AND PRICING OF SHARES. . . . . . . . . . . . . . . . 15
TAXES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
UNDERWRITERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
CALCULATION OF PERFORMANCE DATA. . . . . . . . . . . . . . . . . . . . . . 21
FINANCIAL STATEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
<PAGE>
GENERAL INFORMATION AND HISTORY
The Fund is a business trust organized under the laws of the State of
Delaware on September 4, 1998.
INVESTMENT OBJECTIVES AND POLICIES
INVESTMENT POLICIES. The investment objectives and policies of each
Portfolio are described in the "Investment Objectives and Policies" section of
the Prospectus. The following general policies supplement the information
contained in that section of the Prospectus.
CERTIFICATES OF DEPOSIT. Certificates of deposit are generally short-term,
interest-bearing, negotiable certificates issued by banks or savings and loan
associations against funds deposited in the issuing institution.
TIME DEPOSITS. Time deposits are deposits in a bank or other financial
institution for a specified period of time at a fixed interest rate for which a
negotiable certificate is not received.
BANKER'S ACCEPTANCES. A banker's acceptance is a time draft drawn on a
commercial bank by a borrower usually in connection with an international
commercial transaction (to finance the import, export, transfer, or storage of
goods). The borrower, as well as the bank, is liable for payment, and the bank
unconditionally guarantees to pay the draft at its face amount on the maturity
date. Most acceptances have maturities of six months or less and are traded in
secondary markets prior to maturity.
COMMERCIAL PAPER. Commercial paper refers to short-term, unsecured
promissory notes issued by corporations to finance short-term credit needs.
Commercial paper is usually sold on a discount basis and has a maturity at the
time of issuance not exceeding nine months.
CORPORATE DEBT SECURITIES. Corporate debt securities with a remaining
maturity of less than one year tend to become liquid and can sometimes be traded
as money market securities.
UNITED STATES GOVERNMENT OBLIGATIONS. Securities issued or guaranteed as
to principal and interest by the United States government include a variety of
Treasury securities, which differ only in their interest rates, maturities, and
times of issuance. Treasury bills have a maturity of one year or less.
Treasury notes have maturities of one to seven years, and Treasury bonds
generally have a maturity of greater than five years.
1
<PAGE>
Agencies of the United States government which issue or guarantee
obligations include, among others, export-import banks of the United States,
Farmers' Home Administration, Federal Housing Administration, Government
National Mortgage Association, Maritime Administration, Small Business
Administration, the Defense Security Assistance Agency of the Department of
Defense, and the Tennessee Valley Authority. Obligations of instrumentalities
of the United States government include securities issued or guaranteed by,
among others, the Federal National Mortgage Associates, Federal Intermediate
Credit Banks, Banks for Cooperatives, and the United States Postal Service.
Some of the securities are supported by the full faith and credit of the United
States government; others are supported by the right of the issuer to borrow
from the Treasury, while still others are supported only by the credit of the
instrumentality.
INVESTMENT RESTRICTIONS. The Fund's fundamental policies as they affect a
Portfolio cannot be changed without the approval of a vote of a majority of the
outstanding securities of such Portfolio. A proposed change in fundamental
policy or investment objective will be deemed to have been effectively acted
upon with respect to any Portfolio if a majority of the outstanding voting
securities of that Portfolio votes for the matter. Such a majority is defined
as the lesser of (a) 67% or more of the voting shares of the Fund present at a
meeting of shareholders of the Portfolio, if the holders of more than 50% of the
outstanding shares of the Portfolio are present or represented by proxy or
(b) more than 50% of the outstanding shares of the Portfolio. For purposes of
the following restrictions (except the percentage restrictions on borrowing and
illiquid securities -- which percentage must be complied with) and those
contained in the Prospectus: (i) all percentage limitations apply immediately
after a purchase or initial investment; and (ii) any subsequent change in any
applicable percentage resulting from market fluctuations or other changes in the
amount of total assets does not require elimination of any security from the
Portfolio.
The following investment restrictions are fundamental policies of The
American Tiger Top 20 Portfolio of the Fund with respect to all Portfolios
(unless otherwise specified when a new portfolio is added to the Fund) and
may not be changed except as described above. The American Tiger Top 20
Portfolio of the Fund except as otherwise specified herein may not:
1. Purchase any securities or other property on margin; PROVIDED,
HOWEVER, that The American Tiger Top 20 Portfolio of the Fund may obtain
short-term credit as may be necessary for the clearance of purchases and
sales of securities.
2. Make cash loans, except that The American Tiger Top 20 Portfolio of
the Fund may purchase bonds, notes, debentures, or similar obligations which are
customarily purchased by institutional investors whether publicly distributed or
not.
3. Make securities loans, except that The American Tiger Top 20 Portfolio
of the Fund may make loans of the portfolio securities of such Portfolio,
provided that the market value of the securities subject to any such loans does
not exceed 33-1/3% of the value of the total assets (taken at market value) of
such Portfolio.
4. Make investments in real estate or commodities or commodity contracts,
including futures contracts, although The American Tiger Top 20 Portfolio of the
Fund may purchase securities of issuers which deal in real estate or commodities
although this is not a primary objective of the Portfolio.
2
<PAGE>
5. Invest in oil, gas, or other mineral exploration or development
programs, although The American Tiger Top 20 Portfolio of the Fund may purchase
securities of issuers which engage in whole or in part in such activities.
6. Purchase securities of companies for the purpose of exercising
management or control.
7. Participate in a joint or joint and several trading account in
securities.
8. Issue senior securities or borrow money, except that The American
Tiger Top 20 Portfolio of the Fund may (i) borrow money only from banks for such
Portfolio for temporary or emergency (not leveraging) purposes, including the
meeting of redemption requests, that might otherwise require the untimely
disposition of securities, provided that any such borrowing does not exceed 10%
of the value of the total assets (taken at market value) of such Portfolio, and
(ii) borrow money only from banks for such Portfolio for investment purposes,
provided that (a) after each such borrowing, when added to any borrowing
described in clause (i) of this paragraph, there is an asset coverage of at
least 300% as defined in the Investment Company Act of 1940, and (b) is subject
to an agreement by the lender that any recourse is limited to the assets of that
Portfolio with respect to which the borrowing has been made. As an operating
policy, such Portfolio may not invest in portfolio securities while the amount
of borrowing of such Portfolio exceeds 5% of the total assets of such Portfolio.
9. Pledge, mortgage, or hypothecate the assets of The American Tiger Top
20 Portfolio to an extent greater than 10% of the total assets of such Portfolio
to secure borrowings made pursuant to the provisions of Item 8 above.
10. Purchase for The American Tiger Top 20 Portfolio "restricted
securities" (as defined in Rule 144(a)(3) of the Securities Act of 1933), if, as
a result of such purchase, more than 10% of the net assets (taken at market
value) of such Portfolio would then be invested in such securities nor will the
Fund invest in illiquid or unseasoned securities if as a result of such purchase
more than 5% of the net assets of such portfolio would be invested in either
illiquid or unseasoned securities.
11. Invest more than 10% of The American Tiger Top 20 Portfolio's assets
in the securities of any single company or 25% or more of such portfolio's total
assets in a single industry.
If a percentage restriction is adhered to at the time of investment, a
later increase or decrease in percentage beyond the specified limit resulting
from a change in values of portfolio securities or amount of net assets shall
not be considered a violation of the restrictions, except as to the 5%, 10% and
300% percentage restrictions on borrowing specified in Restriction Number 8
above.
PORTFOLIO TURNOVER. The American Tiger Top 20 Portfolio has an expected
annual rate of portfolio turnover which is calculated by dividing the lesser of
purchases or sales of portfolio securities during the fiscal year by the monthly
average of the value of the Portfolio's securities (excluding from the
computation all securities, including options, with maturities at the time of
acquisition of one year or less). A high rate of portfolio turnover generally
involves correspondingly greater expenses to the Portfolio, including brokerage
commission expenses, dealer mark-ups, and other transaction costs on the sale of
securities,
3
<PAGE>
which must be borne directly by the Portfolio. Turnover rates may
vary greatly from year to year as well as within a particular year and may also
be affected by cash requirements for redemptions of such Portfolio's shares and
by requirements which enable the Fund to receive certain favorable tax
treatment. Because The American Tiger Top 20 Portfolio is a new Fund portfolio
which has not been in operation for a year, no actual turnover rate can be given
at this time. The Fund will attempt to limit the annual portfolio turnover rate
of The American Tiger Top 20 Portfolio to 300% or less, however, this rate may
be exceeded if in the Investment Advisor's discretion securities are or should
be sold or purchased in order to attempt to increase the Portfolio's
performance. In Wisconsin an annual portfolio turnover rate of 300% or more is
considered a speculative activity and under Wisconsin statutes could involve
relatively greater risks or costs to the Fund.
4
<PAGE>
TRUSTEES AND OFFICERS OF THE FUND
The following information, as of September 10, 1998, is provided with
respect to each trustee and officer of the Fund:
POSITION(s) HELD WITH
REGISTRANT AND ITS PRINCIPAL OCCUPATION(s)
NAME AND ADDRESS AFFILIATES DURING PAST FIVE YEARS
Louis Navellier(1) Trustee; Trustee, Mr. Navellier is and has been the
One East Liberty President of The CEO and President of Navellier
Third Floor Navellier Performance. & Associates Inc., an investment
Reno, NV 89501 Funds Mr. Navellier is management company since 1988; CEO
also the CEO, President, and President of Navellier
Secretary, and Management, Inc., an investment
Treasurer of Navellier management company since May 10,
Management, Inc., a 1993; CEO and President of
Delaware corporation Navellier International
which is the Investment Management, Inc., an investment
Advisor to the Fund. management company, since May 10,
Mr. Navellier is also 1993; CEO and President of
CEO, President, Navellier Securities Corp. since
Secretary, and May 10, 1993; CEO and President of
Treasurer of Navellier Navellier Fund Management, Inc.,
Securities Corp., the an investment management company,
principal underwriter since November 30, 1995; and has
of the Navellier been publisher and editor of MPT
Performance Funds' Review from August 1987 to the
shares. present and was publisher and
editor of the predecessor
investment advisory newsletter OTC
Insight, which he began in 1980
and wrote through July 1987.
Arjen Kuyper(1) Trustee; Treasurer; Operations Manager for The
One East Liberty, Director of Navellier Group
Third Floor Administration for the
Reno, Nevada Mutual Fund Division of
89501 The Navellier Group
Barry Sander Trustee Currently the President and
695 Mistletoe CEO of Ursa Major Inc., a
Rd., #2 stencil manufacturing firm
Ashland, OR and has been for the past
97520 eight years.
Joel Rossman Trustee Currently retired as of
20 Place Moulin March 15, 1998; Formerly,
Tiburon, CA President and CEO of
94920 Personal Stamp Exchange,
Inc., a manufacturer,
designer and distributor of
rubber stamp products. He
had been President and CEO
of Personal Stamp Exchange
for the past 10 years.
Jacques Trustee Professor of Business
Delacroix Administration, Leavy School
University of of Business, Santa Clara
Santa Clara University (1983-present).
Santa Clara,
CA
_______________________________________________________
(1) This person is an interested person affiliated with the Investment Advisor.
5
<PAGE>
OFFICERS
The officers of the Fund are affiliated with the Investment Advisor and
receive no salary or fee from the Fund. The Fund's disinterested Trustees are
each compensated by the Fund with an annual fee, payable quarterly (calculated
at an annualized rate), of $10,000. Each disinterested Trustee also receives
$500 per meeting. The Trustees' fees may be adjusted according to increased
responsibilities if the Fund's assets exceed two hundred million dollars. In
addition, each disinterested Trustee receives reimbursement for actual expenses
of attendance at Board of Trustees meetings.
The Fund does not expect, in its current fiscal year, to pay aggregate
remuneration in excess of $60,000 for services in all capacities to any
(a) Trustee, (b) officer, (c) affiliated person of the Fund (other than the
Investment Advisor), (d) affiliated person of an affiliate or principal
underwriter of the Fund, or (e) all Trustees and officers of the Fund as a
group.
The Board of Trustees is permitted by the Fund's By-Laws to appoint an
advisory committee which shall be composed of persons who do not serve the Fund
in any other capacity and which shall have no power to dictate corporate
operations or to determine the investments of the Fund. The Fund currently has
no advisory committee.
REMUNERATION TABLE
<TABLE>
<CAPTION>
Name Capacity In Which Remuneration Aggregate
Received Remuneration
From Registrant and
Fund Complex
expected for fiscal
1998
<S> <C> <C>
Louis G. Navellier Trustee, President, Chief $ 0.00
Executive Officer, and
Treasurer
Barry Sander Trustee $ 4,000.001
Arjen Kuyper Trustee $ 0.00
Joel Rossman Trustee $ 4,000.001
Jacques Delacroix Trustee $ 4,000.001
</TABLE>
(1) Includes one fourth of $10,000 annual salary, $500 per meeting and any
reimbursement for out-of-pocket expenses. There were no out of pocket
expenses for fiscal 1998 as of October 2, 1998.
6
<PAGE>
CONTROL PERSONS AND PRINCIPAL HOLDERS OF SECURITIES
On September 3, 1998, in order to fulfill the requirements of
Section 14(a)(1) of the Investment Company Act of 1940, one hundred percent
(100%) of the issued and outstanding shares of the only existing Portfolio of
the Fund was purchased by Louis Navellier under a subscription agreement dated
September 3, 1998. Such subscription for acquisition was made for an aggregate
of $100,000 allocated 100% for The American Tiger Top 20 Portfolio (to purchase
10,000 shares).
7
<PAGE>
THE INVESTMENT ADVISOR, DISTRIBUTOR,
CUSTODIAN AND TRANSFER AGENT
(a) THE INVESTMENT ADVISOR
The offices of the Investment Advisor (Navellier Management, Inc.) are
located at One East Liberty, Third Floor, Reno, Nevada 89501. The Investment
Advisor began operation in May 1993 and only advises this Fund and The
Navellier Performance Funds.
(i) The following individuals own the enumerated shares of
outstanding stock of the Investment Advisor and, as a result, maintain
control over the Investment Advisor:
<TABLE>
<CAPTION>
SHARES OF OUTSTANDING STOCK PERCENTAGE OF
NAME OF THE INVESTMENT ADVISOR OUTSTANDING SHARES
<S> <C> <C>
Louis G. Navellier 1,000 100%
</TABLE>
(ii) The following individuals are affiliated with the Fund, the
Investment Advisor, and the Distributor in the following capacities:
NAME
Louis G. Navellier Trustee and one of the Portfolio Managers of the
Fund; Director, CEO, President, Secretary and
Treasurer of Navellier Management, Inc.; Director,
President, CEO, Secretary and Treasurer of Navellier
Securities Corp.; Trustee and one of the Portfolio
Managers of The Navellier Performance Funds.
Alan Alpers One of the Portfolio Managers of The Navellier
Performance Funds; One of the Portfolio Managers
of The American Tiger Top 20 Portfolio.
Arjen Kuyper Trustee and Treasurer of the Fund; Trustee and
Treasurer of The Navellier Performance Funds;
Operations Manager for Navellier Management, Inc.
(iii) The management fees payable to the Investment Advisor under the
terms of the Investment Advisory Agreement (the "Advisory Agreement")
between the Investment Advisor and the Fund are payable monthly and are
based upon 1.00% of The American Tiger Top 20 Portfolio's average daily net
assets. The Investment Advisor has the right, but not the obligation, to
waive any portion or all of its management fee, from time to time.
Since the Fund is a newly organized fund which was organized on
September 4, 1998, as of that date, Navellier Management, Inc. had not been
paid any investment advisory fees for The American Tiger Top 20 Portfolio.
8
<PAGE>
The Investment Advisor has agreed to waive reimbursement of all or a portion of
the expenses advanced by it on behalf of The American Tiger Top 20 Portfolio for
the following years if total operating expenses exceed the following amounts:
<TABLE>
<CAPTION>
Portfolio Expense Limit Year(s)
<S> <C> <C>
Tiger Top 20 Portfolio 1.5% 1998 & 1999
</TABLE>
Expenses not expressly assumed by the Investment Advisor under the
Advisory Agreement are paid by the Fund. The Advisory Agreement lists
examples of expenses paid by the Fund for the account of the applicable
Portfolio, the major categories of which relate to taxes, fees to Trustees,
legal, accounting, and audit expenses, custodian and transfer agent expenses,
certain printing and registration costs, and non-recurring expenses,
including litigation.
The Advisory Agreement provides that the Investment Advisor shall not be
liable for any error of judgment or mistake of law or for any loss suffered by
the Fund or its investors except for losses (i) resulting from the willful
misfeasance, bad faith, or gross negligence on its part, (ii) resulting from
reckless disregard by it of its obligations and duties under the Advisory
Agreement, or (iii) a loss for which the Investment Advisor would not be
permitted to be indemnified under the Federal Securities laws.
(iv) Pursuant to an Administrative Services Agreement, the Fund reimburses
the Investment Advisor for certain expenses incurred by the Investment Advisor
in connection with the Fund, including payments to reimburse it for fees the
Investment Advisor pays to others for administrative services.
The Investment Advisory Agreement permits the Investment Advisor to act as
investment adviser for any other person, firm, or corporation, and designates
the Investment Advisor as the owner of the name "Navellier" and/or "American
Tiger Top 20" or any use or derivation of the words Navellier or American Tiger
Top 20. If the Investment Advisor shall no longer act as investment adviser to
the Fund, the right of the Fund to use the name "Navellier" or "American Tiger
Top 20" as part of its title may, solely at the Investment Advisor's option, be
withdrawn.
The Investment Advisor advanced the Fund's organizational expenses. The
Fund has agreed to reimburse the Investment Advisor for the organizational and
other expenses it advances, without interest, on a date or dates to be chosen at
the sole discretion of Navellier Management, Inc., or the Investment Advisor can
elect to waive reimbursement of some or all of such advances. No Portfolio
shall be responsible for the reimbursement of more than its proportionate share
of expenses.
(b) THE DISTRIBUTOR
The Fund's Distributor is Chatfield Dean & Co., a Corporation owned by
Chatfield Dean Holdings, Inc. Chatfield Dean & Co. is registered as a
broker-dealer with the Securities Exchange Commission and National
Association of Securities Dealers and the various states in which this Fund's
securities will be offered for sale by Distributor and will be registered
with such agencies and governments before any Fund shares are sold by it.
The Fund's shares will be continuously distributed by Chatfield Dean & Co.
(the "Distributor") located at 7935 East Prentice Avenue, Suite 200,
Greenwood Village, Colorado, 80111, pursuant to a Distribution Agreement,
dated September 9, 1998. The Distribution Agreement obligates the
Distributor to pay certain expenses in connection with the offering of the
shares of the Fund. The Distributor is responsible for any payments made to
its registered representatives as well as the cost in excess of the 12b-1 fee
(discussed below under
9
<PAGE>
"Distribution Plan") of printing and mailing Prospectuses to potential
investors and of any advertising incurred by it in connection with the
distribution of shares of the Fund.
DISTRIBUTION PLAN
THE DISTRIBUTION PLAN FOR THE AMERICAN TIGER TOP 20 PORTFOLIO
The American Tiger Top 20 Portfolio has adopted a Plan pursuant to Rule
12b-1 under the 1940 Act (the "Plan"), whereby such Portfolio compensates
Distributor or others in the amount of 0.25% per annum of the average daily net
assets of such Portfolio for expenses incurred and services rendered for the
promotion and distribution of the shares of such Portfolio of the Fund,
including, but not limited to, the printing of prospectuses, statements of
additional information and reports used for sales purposes, expenses (including
personnel of Distributor) of preparation of sales literature and related
expenses, advertisements and other distribution-related expenses, including a
prorated portion of Distributor's overhead expenses attributable to the
distribution of such Portfolio's Fund shares. Such payments are made monthly.
The 12b-1 fee includes, in addition to promotional activities, amounts that such
Portfolio pays to Distributor or others as a service fee to compensate such
parties for personal services provided to shareholders of such Portfolio and/or
the maintenance of shareholder accounts. The total amount of 12b-1 fees paid
for such personal services and promotional services shall be 0.25% per year of
the average daily net assets of such Portfolio. The Distributor can keep all of
said 12b-1 fees it receives to the extent it is not required to pay others for
such services. Such Rule 12b-1 fees are paid pursuant to the distribution plan
and distribution agreements entered into between such service providers and
Distributor or the Portfolio directly. The 12b-1 Plan for such Portfolio also
covers payments by the Distributor and Investment Advisor to the extent such
payments are deemed to be for the financing of any activity primarily intended
to result in the sale of shares issued by such Portfolio within the context of
Rule 12b-1. The payments under such 12b-1 Plan for such Portfolio are included
in the maximum operating expenses which may be borne by such Portfolio.
Payments under such 12b-1 Plan for such Portfolio may exceed actual expenses
incurred by the Distributor, Investment Advisor or others.
Since the Fund is a newly organized fund, the Distributor had not been paid
any 12b-1 fees as of September 30, 1998 for services in connection with The
American Tiger Top 20 Portfolio. In addition to 12b-1 fees, investors may also
be charged a transaction fee if they effect transactions in fund shares through
a broker or agent.
(c) THE CUSTODIAN AND TRANSFER AGENT
Rushmore Trust & Savings, FSB, 4922 Fairmont Avenue, Bethesda, Maryland
20814, serves as the custodian of the Fund's portfolio securities and as the
Fund's transfer agent and, in those capacities, maintains certain accounting and
other records of the Fund and processes requests for the purchase or the
redemption of shares, maintains records of ownership for shareholders, and
performs certain other shareholder and administrative services on behalf of the
Fund.
The Fund has entered into an agreement with Rushmore Trust & Savings, FSB,
to perform, in addition to custodian and transfer agent services, some or all
administrative services and may contract in the future with other persons or
entities to perform some or all of its administrative services. All of these
contracted services are and will be paid for by the Fund out of its assets.
(d) LEGAL COUNSEL
The Law Offices of Samuel Kornhauser is legal counsel to the Fund and to
the Investment Advisor.
10
<PAGE>
BROKERAGE ALLOCATION AND OTHER PRACTICES
In effecting portfolio transactions for the Fund, the Investment Advisor
adheres to the Fund's policy of seeking best execution and price, determined as
described below, except to the extent it is permitted to pay higher brokerage
commissions for "brokerage and research services," as defined herein. The
Investment Advisor may cause the Fund to pay a broker or dealer an amount of
commission for effecting a securities transaction in excess of the amount of
commission which another broker or dealer would have charged for effecting the
transaction if the Investment Advisor determines in good faith that such amount
of commission is reasonable in relation to the value of the brokerage and
research services provided by such broker or dealer or that any offset of direct
expenses of a Portfolio yields the best net price. As provided in Section 28(e)
of the Securities Exchange Act of 1934, "brokerage and research services"
include giving advice as to the value of securities, the advisability of
investing in, purchasing, or selling securities, and the availability of
securities; furnishing analysis and reports concerning issuers, industries,
economic facts and trends, portfolio strategy and the performance of accounts;
and effecting securities transactions and performing functions incidental
thereto (such as clearance and settlement). Brokerage and research services
provided by brokers to the Fund or to the Investment Advisor are considered to
be in addition to and not in lieu of services required to be performed by the
Investment Advisor under its contract with the Fund and may benefit both the
Fund and other clients of the Investment Advisor or customers of or affiliates
of the Investment Advisor. Conversely, brokerage and research services provided
by brokers to other clients of the Investment Advisor or its affiliates may
benefit the Fund.
If the securities in which a particular Portfolio of the Fund invests
are traded primarily in the over-the-counter market, where possible, the Fund
will deal directly with the dealers who make a market in the securities
involved unless better prices and execution are available elsewhere. Such
dealers usually act as principals for their own account. On occasion,
securities may be purchased directly from the issuer. Bonds and money market
instruments are generally traded on a net basis and do not normally involve
either brokerage commissions or transfer taxes.
The determination of what may constitute best execution and price in the
execution of a securities transaction by a broker involves a number of
considerations including, without limitation, the overall direct net economic
result to the Fund (involving both price paid or received and any net
commissions and other costs paid), the efficiency with which the transaction is
effected, the ability to effect the transaction at all where a large block is
involved, the availability of the broker to stand ready to execute possibly
difficult transactions in the future, and the financial strength and stability
of the broker. Such considerations are judgmental and are weighed by the
Investment Advisor in determining the overall reasonableness of brokerage
commissions paid by the Fund. Some portfolio transactions are subject to the
Rules of Fair Practice of the National Association of Securities Dealers, Inc.,
and subject to obtaining best prices and executions, effected through dealers
who sell shares of the Fund.
The Board of Trustees of the Fund will periodically review the performance
of the Investment Advisor of its respective responsibilities in connection with
the placement of portfolio transactions on behalf of the Fund and review the
commissions paid by the Fund over representative periods of time to determine if
they are reasonable in relation to the benefits to the Fund.
The Board of Trustees will periodically review whether the recapture for
the benefit of the Fund of some portion of the brokerage commissions or similar
fees paid by the Fund on portfolio transactions is legally permissible and
advisable. At present, no recapture arrangements are in effect. The Board of
Trustees will review whether recapture opportunities are available and are
legally permissible, and, if so, will determine, in the exercise of their
business judgment, whether it would be advisable for the Fund to seek such
recapture.
11
<PAGE>
CAPITAL STOCK AND OTHER SECURITIES
The rights and preferences attached to the shares of each Portfolio are
described in the Prospectus. (See "Description of Shares".) The Investment
Company Act of 1940 requires that where more than one class or series of shares
exists, each class or series must be preferred over all other classes or series
in respect of assets specifically allocated to such class or series. Rule 18f-2
under the Act provides that any matter required to be submitted by the
provisions of the Investment Company Act or applicable state law, or otherwise,
to the holders of the outstanding voting securities of an investment company
such as the Fund shall not be deemed to have been effectively acted upon unless
approved by the holders of a majority of the outstanding shares of each series
affected by such matter. Rule 18f-2 further provides that a series shall be
deemed to be affected by a matter unless the interests of each series in the
matter are substantially identical or that the matter does not affect any
interest of such series. However, the Rule exempts the selection of independent
public accountants, the approval of principal distribution contracts, and the
election of Trustees from the separate voting requirements of the Rule.
12
<PAGE>
PURCHASE, REDEMPTION, AND PRICING OF SHARES
REDEMPTION OF SHARES. The Prospectus, under "Redemption of Shares"
describes the requirements and methods available for effecting redemption. The
Fund may suspend the right of redemption or delay payment more than seven days
(a) during any period when the New York Stock Exchange or any other applicable
exchange, is closed (other than a customary weekend and holiday closing),
(b) when trading on the New York Stock Exchange, or any other applicable
exchange, is restricted, or an emergency exists as determined by the Securities
and Exchange Commission ("SEC") or the Fund so that disposal of the Fund's
investments or a fair determination of the net asset values of the Portfolios is
not reasonably practicable, or (c) for such other periods as the SEC by order
may permit for protection of the Portfolio's shareholders.
The Fund normally redeems shares for cash. However, the Board of Trustees
can determine that conditions exist making cash payments undesirable. If they
should so determine (and if a proper election pursuant to Rule 18F-1 of the
Investment Company Act has been made by the Fund), redemption payments could be
made in securities valued at the value used in determining net asset value.
There generally will be brokerage and other costs incurred by the redeeming
shareholder in selling such securities.
DETERMINATION OF NET ASSET VALUE. As described in the Prospectus under
"Purchase and Pricing of Shares - Valuation of Shares," the net asset value
of shares of each Portfolio of the Fund is determined once daily as of 4 p.m.
New York time on each day during which the New York Stock Exchange, or other
applicable exchange, is open for trading. The New York Stock Exchange is
scheduled to be closed for trading on the following days: New Year's Day,
Washington's Birthday, Good Friday, Memorial Day, Independence Day, Labor
Day, Thanksgiving Day, and Christmas Day. The Board of Trustees of the
Exchange reserves the right to change this schedule. In the event that the
New York Stock Exchange or the national securities exchanges on which small
cap equities are traded adopt different trading hours on either a permanent
or temporary basis, the Board of Trustees of the Fund will reconsider the
time at which net asset value is to be computed.
VALUATION OF ASSETS. In determining the value of the assets of any
Portfolio of the Fund, the securities for which market quotations are readily
available are valued at market value, which is currently determined using the
last reported sale price, or, if no sales are reported - as is the case with
many securities traded over-the-counter - the last reported bid price. Debt
securities (other than short-term obligations, i.e., obligations which have
60 days or less left to maturity, which are valued on the basis of amortized
cost) are normally valued on the basis of valuations provided by a pricing
service when such prices are believed to reflect the fair value of such
securities. Prices provided by a pricing service may be determined without
exclusive reliance on quoted prices and take into account appropriate factors
such as institution-size trading in similar groups of securities, yield,
quality of issue, trading characteristics, and other market data. All other
securities and assets are valued at their fair value as determined in good
faith by the Board of Trustees, although the actual calculations may be made
by persons acting pursuant to the direction of the Board of Trustees.
13
<PAGE>
TAXES
In the case of a "series fund" (that is, a regulated investment company
having more than one segregated portfolio of investments the beneficial
interests in which are owned by the holders of a separate series of stock), each
investment portfolio is treated as a separate corporation for federal income tax
purposes. The Fund will be deemed a series fund for this purpose and, thus,
each Portfolio will be deemed a separate corporation for such purpose.
Each Portfolio of the Fund intends to qualify as a regulated investment
company for federal income tax purposes. Such qualification requires, among
other things, that each Portfolio (a) make a timely election to be a
regulated investment company, (b) derive at least 90% of its gross income
from dividends, interest, payments with respect to securities loans, and
gains from the sale or other disposition of stock or securities (including
options and futures) or foreign currencies and (c) diversify its holdings so
that at the end of each fiscal quarter (i) 50% of the market value of its
assets is represented by cash, government securities, securities of other
regulated investment companies, and securities of one or more other issuers
(to the extent the value of the securities of any one such issuer owned by
the Portfolio does not exceed 5% of the value of its total assets and 10% of
the outstanding voting securities of such issuer) and (ii) not more than 25%
of the value of its assets is invested in the securities (other than
government securities and securities of other regulated investment companies)
of any one industry. These requirements may limit the ability of the
Portfolios to engage in transactions involving options and futures contracts.
If each Portfolio qualifies as a regulated investment company, it will
not be subject to federal income tax on its "investment company taxable
income" (calculated by excluding the amount of its net capital gain, if any,
and by excluding the dividends-received and net operating loss deductions) or
"net capital gain" (the excess of its long-term capital gain over its net
short-term capital loss) which is distributed to shareholders. In
determining taxable income, however, a regulated investment company holding
stock on the record date for a dividend is required to include the dividend
in income on the later of the ex-dividend date or the date of acquisition.
Dividends paid out of net investment income and net short-term capital
gains of a Portfolio will be taxable to shareholders as ordinary income
regardless of whether such distributions are reinvested in additional shares
or paid in cash. If a portion of a Portfolio's net investment income is
derived from dividends from domestic corporations, a corresponding portion of
the dividends paid out of such income may be eligible for the
dividends-received deduction. Corporate shareholders will be informed as to
the portion, if any, of dividends received by them which will qualify for the
dividends-received deduction.
14
<PAGE>
Dividends paid out of the net capital gain of a Portfolio that are
designated as capital gain dividends by the Fund will be taxable to
shareholders as long-term capital gains regardless of how long the
shareholders have held their shares. Such dividends will not be eligible for
the dividends-received deduction. If shares of the Fund to which such
capital gains dividends are attributable are held by a shareholder for less
than 31 days and there is a loss on the sale or exchange of such shares, then
the loss, to the extent of the capital gain dividend or undistributed capital
gain, is treated as a long-term capital loss.
All distributions, whether received in shares or cash, must be reported by
each shareholder on his federal income tax return. Taxable dividends declared
in October, November, or December of any year and payable to shareholders of
record on a specified date in such a month will be deemed to have been paid by
the Fund and received by such shareholders on December 31 of the year if such
dividend is actually paid by the Fund during January of the following year.
Any dividends paid shortly after a purchase by an investor may have the
effect of reducing the per share net asset value of the investor's shares by the
per share amount of the dividends. Furthermore, such dividends, although in
effect a return of capital, are subject to federal income taxes. Therefore,
prior to purchasing shares of the Fund, the investor should carefully consider
the impact of dividends, including capital gains distributions, which are
expected to be or have been announced.
The redemption of all or part of the shares of a series held by any
shareholder will generally be treated as a sale or exchange unless the
redemption fails to substantially reduce the shareholder's percentage
ownership interest in the related Portfolio (determined for this purpose
using certain specific rules of constructive ownership). Any redemption that
does not substantially reduce a shareholder's percentage ownership interest
in a Portfolio may be treated as a dividend.
If a redemption is treated as a sale or exchange, the shareholder will
generally recognize gain or loss measured by the difference between the
redemption price and the basis of the shares. This gain will generally be
treated as capital gain (long-term or short-term, depending upon the
shareholder's holding period for the redeemed shares).
The exchange of the shares in one Portfolio for shares in another
Portfolio will be treated as a taxable exchange for federal income tax
purposes. If the exchange occurs within 90 days of the acquisition of the
original shares, however, the shareholder's basis in the original shares will
not include the sales charge, if any, to the extent such charge does not
exceed the amount that would have been charged on the acquisition of the
second-acquired shares if such shares were acquired directly. To the extent
that the sales charge, if any, paid upon acquisition of the original shares
is not taken into account in determining the shareholder's gain or loss from
the disposition of the original shares, it is added to the basis of the newly
acquired shares.
On or before January 31 of each year, the Fund will issue to each person
who was a shareholder at any time in the prior year a statement of the federal
income tax status of all distributions made to such shareholder.
Shareholders who fail to provide correct taxpayer identification numbers or
fail to certify as to no loss of exemption from backup withholding or otherwise
fail to comply with applicable requirements of the law relating to backup
withholding will be subject to backup withholding with
15
<PAGE>
respect to dividends at the rate of 31% unless they are corporations or come
within other exempt categories. Any amounts paid as backup withholding will
be creditable against the federal income tax liabilities of the affected
shareholders. All shareholders should consult their own tax advisers with
regard to the tax consequences applicable to their respective investments in
the Fund.
The foregoing discussion relates solely to United States federal income
tax laws as applicable to United States persons (that is, citizens and
residents of the United States and domestic corporations, partnerships,
trusts, and estates). Each shareholder who is not a United States person
should consult his tax adviser regarding the United States and non-United
States tax consequences of ownership of shares, including the possibility
that distributions by the Fund may be subject to a United States withholding
tax at the rate of 30% (or at a lower rate under an applicable United States
income tax treaty).
Each Portfolio will be subject to a nondeductible excise tax for any
year equal to 4% of the "required distribution" for the year over the
"distributed amount" for the year. For this purpose, the term "required
distribution" means, with respect to any year, the sum of (a) 98% of the
Portfolio's "ordinary income" (that is, its taxable income determined by
excluding its net capital gain, if any, by disallowing the dividends-received
and net operating loss deductions, and by not taking into account any capital
gain or loss), (b) 98% of its net capital gain income (that is, the excess of
capital gains over capital losses) for the one-year period ending on December
31 of the year, and (c) the "prior year shortfall" (that is, the excess, if
any, of the "grossed-up required distribution" for the prior year over the
"distributed amount" for such year). For this purpose, the term "grossed-up
required distribution" means, with respect to any year, the required
distribution for the year (determined by including 100% of the Portfolio's
ordinary income and capital gain net income) and the term "distributed
amount" means, with respect to any year, the sum of (a) the amount of
dividends-paid or deemed paid during the year, (b) any amount on which the
Portfolio is required to pay corporate tax for the year, and (c) the excess,
if any, of the distributed amount for the prior year over the required
distribution for such year.
The individual Portfolios will not be subject to tax in Delaware for any
year in which they each qualify as a regulated investment company. They may,
however, be subject to such tax for any year in which they do not so qualify
and may be subject to tax in certain other states where they are deemed to be
doing business. Moreover, distributions may be subject to state and local
taxes. In those states which have income tax laws, the tax treatment of such
Portfolios and the tax treatment of shareholders with respect to
distributions may be different from the federal income tax treatment of such
persons.
The foregoing is a general summary of the federal income tax consequences
of investing in the Fund to shareholders who are U.S. citizens or U.S.
corporations. Shareholders should consult their own tax advisors about the tax
consequences of an investment in the Fund in light of each of each shareholder's
particular tax situation. Shareholders should also consult their own tax
advisors about consequences under foreign, state, local or other applicable tax
laws.
16
<PAGE>
UNDERWRITERS
The Fund's shares will be continuously distributed through Chatfield Dean &
Co. (the "Distributor") located at 7935 East Prentice Avenue, Suite 200,
Greenwood Village, Colorado, 80111, pursuant to a distribution agreement dated
September 9, 1998. The Distributor will begin selling this Fund's shares as
soon as the Fund goes effective with the SEC, which is expected to be in
September 1998.
The Distributor acts as the sole principal underwriter of the Fund's
shares. Through a network established by the Distributor, the Fund's shares may
also be sold through selected investment brokers and dealers. For a description
of the Distributor's obligations to distribute the Fund's securities, see "The
Investment Advisor, Distributor, Custodian and Transfer Agent - Distributor."
17
<PAGE>
CALCULATION OF PERFORMANCE DATA
Performance information for each Portfolio may appear in advertisements,
sales literature, or reports to shareholders or prospective shareholders.
Performance information in advertisements and sales literature may be
expressed as total return on the applicable Portfolio.
The average annual total return on such Portfolios represents an
annualization of each Portfolio's total return ("T" in the formula below)
over a particular period and is computed by finding the current percentage
rate which will result in the ending redeemable value ("ERV" in the formula
below) of a $1,000 payment* ("P" in the formula below) made at the beginning
of a one-, five-, or ten-year period, or for the period from the date of
commencement of the Portfolio's operation, if shorter ("n" in the formula
below). The following formula will be used to compute the average annual
total return for the Portfolio:
n
P (1 + T) = ERV
In addition to the foregoing, each Portfolio may advertise its total
return over different periods of time by means of aggregate, average,
year-by-year, or other types of total return figures.
The American Tiger Top 20 Portfolio is a newly formed portfolio which has
been in operation for less than one year and therefore, no performance figures
for this portfolio are included.
Performance information for the Portfolio shall reflect only the
performance of a hypothetical investment in the Portfolio during the
particular time period on which the calculations are based. Performance
information should be considered in light of the investment objectives and
policies, characteristics and quality of the particular Portfolio, and the
market conditions during the given time period, and should not be considered
as a representation of what may be achieved in the future.
Each Portfolio may, from time to time, include in advertisements
containing total return the ranking of those performance figures relative to
such figures for groups of mutual funds categorized by Lipper Analytical
Services, or other services, as having the same investment objectives. The
total return may also be used to compare the performance of the Portfolio
against certain widely acknowledged outside standards or indices for stock
and bond market performance. The Standard & Poor's Composite Index of 500
stocks ("S&P 500") is a market value-weighted and unmanaged index showing the
changes in the aggregate market value of 500 stocks relative to the base
period 1941-43. The S&P 500 is composed almost entirely of common stocks of
companies listed on the New York Stock Exchange, although the common stocks
of a few companies listed on the American Stock Exchange or traded
over-the-counter are included.
As summarized in the Prospectus under the heading "Performance and Yield,"
the total return of each Portfolio may be quoted in advertisements and sales
literature.
18
<PAGE>
FINANCIAL STATEMENTS
19
<PAGE>
September 4, 1998 Audited Financial Statement
20
<PAGE>
REPORT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
TO: THE SHAREHOLDERS AND BOARD OF TRUSTEES OF
THE AMERICAN TIGER FUNDS
RENO, NEVADA
We have audited the accompanying statement of assets and liabilities of The
American Tiger Top 20 Portfolio (the "FUND") a series of shares of The
American Tiger Funds. This financial statement is the responsibility of the
Fund's management. Our responsibility is to express an opinion on this
financial statement based on our audit.
We conducted our audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the statement of assets and
liabilities is free of material misstatement. An audit includes examining on
a test basis, evidence supporting the amounts and disclosures in the
statement of assets and liabilities. An audit also includes assessing the
accounting principles used and significant estimates made by management, as
well as evaluating the overall financial statement presentation. We believe
that our audit of the statement of assets and liabilities provides a
reasonable basis for our opinion.
In our opinion, the statement of assets and liabilities referred to above
presents fairly, in all material respects, the financial position of The
American Tiger Top 20 Portfolio as of September 4, 1998, in conformity with
generally accepted accounting principles.
PHILADELPHIA, PENNSYLVANIA
SEPTEMBER 4, 1998
<PAGE>
THE AMERICAN TIGER TOP 20 PORTFOLIO
STATEMENT OF ASSETS AND LIABILITIES
<TABLE>
SEPTEMBER 4, 1998
________________________________________________________________________________
<S> <C>
ASSETS
Cash $100,000
--------
NET ASSETS $100,000
========
Shares of beneficial interest outstanding, unlimited amount
authorized 10,000
------
Net Asset value and redemption price per share $10.00
------
At September 4, 1998, the components of net assets were as follows:
Paid-in capital $100,000
--------
Offering price calculation
($10.00 per share divided by 0.9505) $10.52*
-------
</TABLE>
* On sales of $50,000 or more, the offering price is reduced.
SEE NOTES TO STATEMENT OF ASSETS AND LIABILITIES
<PAGE>
THE AMERICAN TIGER TOP 20 PORTFOLIO
NOTES TO STATEMENT OF ASSETS AND LIABILITIES
SEPTEMBER 4, 1998
(1) ORGANIZATION
American Tiger Funds (the "TRUST") is registered under the Investment
Company Act of 1940, as amended (the "1940 ACT"), as an open-end
management investment company and is authorized to issue shares of
beneficial interests. The Trust currently offers shares of beneficial
interests in one portfolio, The American Tiger Top 20 Portfolio.
The Trust was organized on September 4, 1998, as a Delaware Business
Trust. The Trust had no operations other than those relating to
organizational matters and the registration of its shares under applicable
securities laws.
<PAGE>
APPENDIX
A-1 AND P-1 COMMERCIAL PAPER RATINGS
Each of the Portfolios will invest only in commercial paper which, at
the date of investment, is rated A-1 by Standard & Poor's Corporation ("S&P")
or P-1 by Moody's Investors Services, Inc. ("Moody's"), or, if not rated, is
issued or guaranteed by companies which at the date of investment have an
outstanding debt issue rated AA or higher by Standard & Poor's or Aa or
higher by Moody's.
Commercial paper rated A-1 by S&P has the following characteristics:
(1) liquidity ratios are adequate to meet cash requirements; (2) long-term
senior debt is rated "A" or better; (3) the issuer has access to at least two
additional channels of borrowing; (4) basic earnings and cash flow have an
upward trend with allowance made for unusual circumstances; (5) typically, the
issuer's industry is well established and the issuer has a strong position
within the industry; and (6) the reliability and quality of management are
unquestioned.
The rating P-1 is the highest commercial paper rating assigned by Moody's.
Among the factors considered by Moody's in assigning ratings are the following:
(1) evaluation of the management of the issuer; (2) economic evaluation of the
issuer's industry or industries and an appraisal of speculative-type risks which
may be inherent in certain areas; (3) evaluation of the issuer's products in
relation to competition and customer acceptance; (4) liquidity; (5) amount and
quality of long-term debt; (6) trend of earnings over a period of ten years;
(7) financial strength of a parent company and the relationship which exists
with the issuer; and (8) recognition by the management of obligations which may
be present or may arise as a result of public interest questions and
preparations to meet such obligations.
<PAGE>
PART C
OTHER INFORMATION
ITEM 24 FINANCIAL STATEMENTS AND EXHIBITS
1. FINANCIAL STATEMENTS:
(a) N/A
(b) Included in Part B of this Registration Statement:
(i) Audited financial statement dated September 4, 1998.
(c) Included in Part C of this Registration Statement: none
All other statements and schedules have been omitted because they are not
applicable or the information is shown in the Financial Statements or Financial
Highlights or notes thereto.
2. EXHIBITS:
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION
- ----------------- --------------------------------------------------------------------------------------------
<C> <S>
1.1 Certificate of Trust of Registrant
1.2 Declaration of Trust of Registrant
2 By-Laws of Registrant
3 None
4 None
5 Investment Management Agreement between Registrant and Navellier Management, Inc., dated
September 9, 1998
6 Distribution Agreement dated September 9, 1998
6.1 Selected Dealer Agreement (specimen)
7 None
8.1 Agreement for Fund Accounting Services, Transfer Agency Services and Custody Services
between Registrant and Rushmore Trust & Savings, FSB
8.2 Administrative Services Agreement between Registrant and Navellier Management, Inc. dated
September 9, 1998
9.0 Trustee Indemnification Agreements
10 Opinion and Consent of Counsel
11 Consent of Independent Auditors dated September 4, 1998
12 None
13 Subscription Agreement between The American Tiger Funds and Louis Navellier, dated September
3, 1998
13.1 Investment Advisor Operating Expense Reimbursement Agreement
14 None
15 12b-1 Distribution Plan for The American Tiger Top 20 Portfolio
16 N/A
17 N/A
</TABLE>
ITEM 25 PERSONS CONTROLLED BY OR UNDER COMMON CONTROL WITH REGISTRANT
(a) As is described in the Statement of Additional Information ("Control
Persons and Principal Holders of Securities") the Fund was initially controlled
by Louis Navellier, the sole stockholder, officer, and director of the
Investment Advisor, who also serves as Trustee and in various officer positions
with the Fund (as described more fully under "The Investment Advisor,
Distributor, Custodian and Transfer Agent" in the Statement of Additional
Information).
22
<PAGE>
ITEM 26 NUMBER OF HOLDERS OF SECURITIES
As of September 10, 1998 The American Tiger Top 20 Portfolio had one (1)
shareholder.
ITEM 27 INDEMNIFICATION
The Fund shall indemnify each of its Trustees, officers, employees, and
agents (including persons who serve at its request as directors, officers, or
trustees of another organization in which it has any interest, as a shareholder,
creditor, or otherwise) against all liabilities and expenses (including amounts
paid in satisfaction of judgments, in compromise, as fines and penalties, and as
counsel fees) reasonably incurred by him in connection with the defense or
disposition of any action, suit, or other proceeding, whether civil or criminal,
in which he may be involved or with which he may be threatened, while in office
or thereafter, by reason of his being or having been such a Trustee, officer,
employee, or agent, except with respect to any matter as to which he shall have
been adjudicated to have acted in bad faith, willful misfeasance, gross
negligence, or reckless disregard of his duties; provided, however, that as to
any matter disposed of by a compromise payment by such Person, pursuant to a
consent decree or otherwise, no indemnification either for said payment or for
any other expenses shall be provided unless there has been a determination that
such person did not engage in bad faith, willful misfeasance, gross negligence,
or reckless disregard of his duties involved in the conduct of his office by the
court or other body approving the settlement or other disposition or by a
reasonable determination, based upon review of readily available facts (as
opposed to a full trial-type inquiry), that he did not engage in such conduct by
written opinion from independent legal counsel approved by a majority of a
quorum of trustees who are neither interested persons nor parties to the
proceedings. The rights accruing to any person under these provisions shall not
exclude any other right to which he may be lawfully entitled; provided that no
person may satisfy any right of indemnity or reimbursement granted herein or to
which he may otherwise be entitled except out of the Fund Property. A majority
of a quorum of disinterested non-party Trustees may make advance payments in
connection with indemnification under this section, provided that the
indemnified person shall have given a written undertaking adequately secured to
reimburse the Fund in the event it is subsequently determined that he is not
entitled to such indemnification, or a majority of a quorum of disinterested
non-party Trustees or independent counsel determine, after a review of readily
available facts, that the person seeking indemnification will probably be found
to be entitled to indemnification.
Insofar as indemnification for liability arising under the Securities Act of
1933 may be permitted to the Trustees, officers, and controlling persons of the
Fund pursuant to the provisions described under this Item 27, or otherwise, the
Fund has been advised that, in the opinion of the SEC, such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the Fund of expenses incurred or paid by a Trustee, officer,
or controlling person of the Fund in the successful defense of any action, suit,
or proceeding) is asserted by such Trustee, officer, or controlling person in
connection with the securities being registered, the Fund will, unless in the
opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question of whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
The Fund may purchase and maintain insurance on behalf of an officer,
Trustee, employee, or agent protecting such person, to the full extent permitted
by applicable law, from liability incurred by such person as officer, Trustee,
employee, or agent of the Fund or arising from his activities in such capacity.
Section 9 of the Distribution Agreement between the Fund and Chatfield Dean
& Co. provides for indemnification of the parties thereto under certain
circumstances.
Section 4 of the Advisory Agreement between the Portfolio and the Investment
Advisor provides for indemnification of the parties thereto under certain
circumstances.
23
<PAGE>
ITEM 28 BUSINESS AND OTHER CONNECTIONS OF INVESTMENT ADVISOR
Set forth below is a description of any other business, profession,
vocation, or employment of a substantial nature in which each investment adviser
of the Fund and each director, officer, or partner of any such investment
adviser, is or has been at any time during the past two fiscal years, engaged
for his own account or in the capacity of director, officer, employee, partner,
or trustee:
<TABLE>
<CAPTION>
NAME AND PRINCIPAL POSITIONS HELD WITH REGISTRANT PRINCIPAL OCCUPATIONS
BUSINESS ADDRESS AND ITS AFFILIATES DURING PAST TWO YEARS
- ------------------------------ --------------------------------------- ---------------------------------------
<S> <C> <C>
Louis Navellier Trustee and one of the Portfolio Mr. Navellier is and has been the CEO
One East Liberty Managers of the Fund; Trustee, and President of Navellier & Associates
Third Floor President, and Treasurer of The Inc., an investment management company
Reno, NV 89501 Navellier Performance Funds, one of since 1988; is and has been CEO and
Portfolio Managers of the Aggressive President of Navellier Management,
Growth Portfolio, the Mid Cap Growth Inc.; one of the Portfolio Managers for
Portfolio and the Aggressive Small Cap the Investment Advisor to this Fund and
Portfolio, the Large Cap Value was one of Portfolio Managers to The
Portfolio, the Large Cap Growth Navellier Series Fund; President and
Portfolio, the Small Cap Value CEO of Navellier Securities Corp.; CEO
Portfolio and the Micro Cap Portfolio. and President of Navellier Fund
Mr. Navellier is also the CEO, Management, Inc. and has been publisher
President, Treasurer, and Secretary of and editor of MPT Review from August
Navellier Management, Inc., a Delaware 1987 to the present, and was publisher
Corporation which is the Investment and editor of the predecessor
Advisor to the Fund. Mr. Navellier is investment advisory newsletter OTC
also CEO, President, Secretary, and Insight, which he began in 1980 and
Treasurer of Navellier & Associates wrote through July 1987; and editor of
Inc., Navellier Publications, Inc., MPT The Blue Chip Newsletter.
Review Inc., and Navellier
International Management, Inc. and
Navellier Fund Management, Inc.
</TABLE>
ITEM 29 PRINCIPAL UNDERWRITERS
(a) The Distributor does not currently act as principal underwriter,
depositor, or investment adviser for any investment company other than the Fund.
24
<PAGE>
(b) The following information is provided, as of the date hereof, with
respect to each director, officer, or partner of each principal underwriter
named in response to Item 21:
<TABLE>
<CAPTION>
NAME AND PRINCIPAL POSITION AND OFFICES POSITIONS AND OFFICES
BUSINESS ADDRESS WITH UNDERWRITER WITH REGISTRANT
- ------------------------------------ ------------------------------------ ------------------------------------
<S> <C> <C>
Sanford D. Greenberg Chief Executive Officer; Director Chief Executive Officer and Director
Chatfield Dean & Co. of Underwriter for the Fund
7935 East Prentice Avenue
Suite 200
Greenwood Village,
Colorado 80111
Robert L. Lemon President; Director President and Director of
Chatfield Dean & Co. Underwriter for the Fund
7935 East Prentice Avenue
Suite 200
Greenwood Village
Colorado 80111
Richard O'Donnell Executive Vice President; Director Executive Vice President and
Chatfield Dean & Co. Director of Underwriter for the
7935 East Prentice Avenue Fund
Suite 200
Greenwood Village
Colorado 80111
Scott W. Carothers Vice President; Director Vice President and Director of
Chatfield Dean & Co. Underwriter for the Fund
7935 East Prentice Avenue
Suite 200
Greenwood Village
Colorado 80111
Kenneth L. Greenberg Vice President; Director Vice President and Director of
Chatfield Dean & Co. Underwriter for the Fund
7935 East Prentice Avenue
Suite 200
Greenwood Village
Colorado 80111
Barry Cheren Senior Vice President; Director Senior Vice President and Director
Chatfield Dean & Co. of Underwriter of the Fund
7935 East Prentice Avenue
Suite 200
Greenwood Village
Colorado 80111
</TABLE>
(c) As of the date hereof, no principal underwriter who is not an affiliated
person of the Fund has received any commissions or other compensation during the
Fund's last fiscal year.
ITEM 30 LOCATION OF ACCOUNTS AND RECORDS
All accounts, records, and other documents required to be maintained under
Section 31(a) of the 1940 Act and the rules promulgated thereunder are
maintained at the office of The American Tiger Funds
25
<PAGE>
located at One East Liberty, Third Floor, Reno, Nevada 89501, and the offices of
the Fund's Custodian and Transfer agent at 4922 Fairmont Avenue, Bethesda, MD
20814.
ITEM 31 MANAGEMENT SERVICES
Other than as set forth in Part A and Part B of this Registration Statement,
the Fund is not a party to any management-related service contract.
ITEM 32 UNDERTAKINGS
The Fund hereby undertakes to furnish each person to whom a prospectus is
delivered a copy of the latest annual report to shareholders, upon request and
without change.
The Fund hereby undertakes that if it is requested by the holders of at
least 10% of its outstanding shares to call a meeting of shareholders for the
purpose of voting upon the question of removal of a Trustee, it will do so and
will assist in communications with other shareholders as required by Section
16(c) of the Investment Company Act of 1940.
The Fund hereby undertakes, as to The American Tiger Top 20 Portfolio, to
file a post-effective amendment using unaudited financial statements, which need
not be certified, within four (4) to six (6) months from the effective date of
such portfolio's 1933 Act Registration Statement.
26
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933 and the
Investment Company Act of 1940, the Registrant has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereto duly
authorized, in the City of San Francisco, and State of California on the 9th day
of September, 1998.
<TABLE>
<S> <C> <C>
THE AMERICAN TIGER FUNDS
By: /s/ ARJEN KUYPER
-----------------------------------------
Arjen Kuyper
TRUSTEE
</TABLE>
The American Tiger Funds, and each person whose signature appears below
hereby constitutes and appoints Arjen Kuyper as such person's true and lawful
attorney-in-fact, with full power to sign for such person and in such person's
name, in the capacities indicated below, any and all amendments to this
Registration Statement, hereby ratifying and confirming such person's signature
as it may be signed by said attorney-in-fact to any and all amendments to said
Registration Statement.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons or their
attorneys-in-fact pursuant to authorization given on September 9, 1998, in the
capacities and on the date indicated:
<TABLE>
<C> <S> <C>
- ------------------------------ Trustee and Treasurer September 9, 1998
Arjen Kuyper(1)
- ------------------------------ Trustee September 9, 1998
Joel Rossman
- ------------------------------ Trustee September 9, 1998
Barry Sander
- ------------------------------ Trustee and Principle September 9, 1998
Louis G. Navellier(1) Executive Officer
- ------------------------------ Trustee September 9, 1998
Jacques Delacroix
</TABLE>
(1) This person is an interested person affiliated with the Investment Advisor.
27
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIALLY
NUMBER DESCRIPTION NUMBERED PAGE
- ----------- -------------------------------------------------------------------- -----------------
<C> <S> <C>
1.0 None (Financial Statement)
1.1 Certificate of Trust of Registrant
1.2 Declaration of Trust of Registrant
2 By-Laws of Registrant
3 None
4 None
5 Investment Advisory Agreement between Registrant and Navellier
Management, Inc., dated September 9, 1998
6 Distribution Agreement dated September 9, 1998
6.1 Selected Dealer Agreement (specimen)
7 None
8.1 Agreement for Fund Accounting Services, Transfer Agency Services and
Custody Services between Registrant and Rushmore Trust & Savings,
FSB
8.2 Administrative Services Agreement between Registrant and Navellier
Management, Inc., dated September 9, 1998
9 Trustee Indemnification Agreements
10 Opinion and Consent of Counsel
11 Consent of Independent Auditors
12 None
13 Subscription Agreement between The American Tiger Funds and Louis
Navellier, dated September 3, 1998
13.1 Investment Adviser Operating Expense Reimbursement Agreement
14 None
15 12b-1 Plan
16 N/A
17 N/A
</TABLE>
28
<PAGE>
EXHIBIT 99.1.1
CERTIFICATE OF TRUST
THE AMERICAN TIGER FUNDS
The undersigned, constituting all the members of the Board of Trustees of
The American Tiger Funds (the "Trust"), in order to form a Delaware business
trust pursuant to the provisions of the Delaware Business Trust Act (12 Del.C.
Section 3801 et seq.), do hereby certify the following:
1. The name of the Delaware business trust is
THE AMERICAN TIGER FUNDS
2. The registered office of the Trust in Delaware is the The Company
Corporation, 1013 Center Road, County of New Castle, Wilmington, Delaware 19805.
3. Prior to the issuance of beneficial interests, the Trust will become a
registered investment company under the Investment Company Act of 1940, as
amended.
4. The registered agent for service of process on the Trust is the The
Company Corporation, 1013 Center Road, County of New Castle, Wilmington,
Delaware 19801.
5. This Certificate of Trust shall be effective the date it is filed with
the Office of the Delaware Secretary of State.
6. Section 3804 (a) of the Delaware Business Trust Act shall apply to
limit the liabilities of any Series of this Trust solely to the liabilities,
debts, obligations, and expenses incurred, contracted for, or otherwise
existing, incurred, or accrued with respect to that Series and shall only be
enforceable against the assets of that particular Series and not against the
assets of the business trust generally.
IN WITNESS WHEREOF, the undersigned Trustees of The American Tiger Funds
have executed this Certificate of Trust as of the 4th day of September, 1998.
- -------------------------------- -----------------------------------
Louis G. Navellier, Trustee Arjen Kuyper, Trustee
- -------------------------------- -----------------------------------
Barry Sander, Trustee Jacques Delacroix, Trustee
- --------------------------------
Joel Rossman, Trustee
<PAGE>
EXHIBIT 99.1.2
DECLARATION OF TRUST
OF
THE AMERICAN TIGER FUNDS
DATED SEPTEMBER 9, 1998
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
<S> <C>
ARTICLE I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
NAMES AND DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . 1
NAME . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.02. . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
BENEFICIAL INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SHARES OF BENEFICIAL INTEREST. . . . . . . . . . . . . . . . . . . 3
Section 2.01. . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 2.02. . . . . . . . . . . . . . . . . . . . . . . . . 4
REGISTER OF SHARES AND SHARE CERTIFICATES. . . . . . . . . . . . . 4
Section 2.03. . . . . . . . . . . . . . . . . . . . . . . . . 4
TRANSFER OF SHARES . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.04. . . . . . . . . . . . . . . . . . . . . . . . . 5
TREASURY SHARES. . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.05. . . . . . . . . . . . . . . . . . . . . . . . . 5
ESTABLISHMENT OF SERIES. . . . . . . . . . . . . . . . . . . . . . 6
Section 2.06. . . . . . . . . . . . . . . . . . . . . . . . . 6
INVESTMENT IN THE TRUST. . . . . . . . . . . . . . . . . . . . . . 7
Section 2.07. . . . . . . . . . . . . . . . . . . . . . . . . 7
ASSETS AND LIABILITIES OF SERIES . . . . . . . . . . . . . . . . . 7
Section 2.08. . . . . . . . . . . . . . . . . . . . . . . . . 7
NO PREEMPTIVE RIGHTS . . . . . . . . . . . . . . . . . . . . . . . 9
Section 2.09. . . . . . . . . . . . . . . . . . . . . . . . . 9
PERSONAL LIABILITY OF SHAREHOLDERS . . . . . . . . . . . . . . . . 9
Section 2.10. . . . . . . . . . . . . . . . . . . . . . . . . 9
ASSENT TO TRUST INSTRUMENT . . . . . . . . . . . . . . . . . . . . 10
Section 2.11. . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE III. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
THE TRUSTEES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
MANAGEMENT OF THE TRUST. . . . . . . . . . . . . . . . . . . . . . 10
Section 3.01. . . . . . . . . . . . . . . . . . . . . . . . . 10
INITIAL TRUSTEES . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 3.02. . . . . . . . . . . . . . . . . . . . . . . . . 11
TERM OF OFFICE OF TRUSTEES . . . . . . . . . . . . . . . . . . . . 11
Section 3.03. . . . . . . . . . . . . . . . . . . . . . . . . 11
VACANCIES AND APPOINTMENT OF TRUSTEES. . . . . . . . . . . . . . . 12
Section 3.04. . . . . . . . . . . . . . . . . . . . . . . . . 12
TEMPORARY ABSENCE OF TRUSTEE . . . . . . . . . . . . . . . . . . . 13
Section 3.05. . . . . . . . . . . . . . . . . . . . . . . . . 13
NUMBER OF TRUSTEES . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 3.06. . . . . . . . . . . . . . . . . . . . . . . . . 13
i
<PAGE>
EFFECT OF DEATH, RESIGNATION, ETC., OF A TRUSTEE . . . . . . . . . 13
Section 3.07. . . . . . . . . . . . . . . . . . . . . . . . . 13
OWNERSHIP OF ASSETS OF THE TRUST . . . . . . . . . . . . . . . . . 13
Section 3.08. . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
POWERS OF THE TRUSTEES. . . . . . . . . . . . . . . . . . . . . . . . . 14
POWERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 4.01. . . . . . . . . . . . . . . . . . . . . . . . . 14
ISSUANCE AND REPURCHASE OF SHARES. . . . . . . . . . . . . . . . . 18
Section 4.02. . . . . . . . . . . . . . . . . . . . . . . . . 18
TRUSTEES AND OFFICERS AS SHAREHOLDERS. . . . . . . . . . . . . . . 19
Section 4.03. . . . . . . . . . . . . . . . . . . . . . . . . 19
ACTION OF THE TRUSTEES . . . . . . . . . . . . . . . . . . . . . . 19
Section 4.04. . . . . . . . . . . . . . . . . . . . . . . . . 19
CHAIRMAN OF THE TRUSTEES . . . . . . . . . . . . . . . . . . . . . 20
Section 4.05. . . . . . . . . . . . . . . . . . . . . . . . . 20
PRINCIPAL TRANSACTIONS . . . . . . . . . . . . . . . . . . . . . . 20
Section 4.06. . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE V. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
EXPENSES OF THE TRUST . . . . . . . . . . . . . . . . . . . . . . . . . 21
TRUSTEE REIMBURSEMENT. . . . . . . . . . . . . . . . . . . . . . . 21
Section 5.01. . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
INVESTMENT ADVISER, PRINCIPAL UNDERWRITER, AND TRANSFER AGENT . . . . . 22
INVESTMENT ADVISER . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 6.01. . . . . . . . . . . . . . . . . . . . . . . . . 22
PRINCIPAL UNDERWRITER. . . . . . . . . . . . . . . . . . . . . . . 23
Section 6.02. . . . . . . . . . . . . . . . . . . . . . . . . 23
TRANSFER AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 6.03. . . . . . . . . . . . . . . . . . . . . . . . . 23
PARTIES TO CONTRACT. . . . . . . . . . . . . . . . . . . . . . . . 23
Section 6.04. . . . . . . . . . . . . . . . . . . . . . . . . 23
PROVISIONS AND AMENDMENTS. . . . . . . . . . . . . . . . . . . . . 24
Section 6.05. . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE VII. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SHAREHOLDERS' VOTING POWERS AND MEETINGS. . . . . . . . . . . . . . . . 25
VOTING POWERS. . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 7.01. . . . . . . . . . . . . . . . . . . . . . . . . 25
MEETINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 7.02. . . . . . . . . . . . . . . . . . . . . . . . . 26
QUORUM AND REQUIRED VOTE . . . . . . . . . . . . . . . . . . . . . 26
Section 7.03. . . . . . . . . . . . . . . . . . . . . . . . . 26
ii
<PAGE>
ARTICLE VIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
CUSTODIAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
APPOINTMENT AND DUTIES . . . . . . . . . . . . . . . . . . . . . . 27
Section 8.01. . . . . . . . . . . . . . . . . . . . . . . . . 27
CENTRAL CERTIFICATE SYSTEM . . . . . . . . . . . . . . . . . . . . 28
Section 8.02. . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE IX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
DISTRIBUTIONS AND REDEMPTIONS . . . . . . . . . . . . . . . . . . . . . 29
DISTRIBUTIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 9.01. . . . . . . . . . . . . . . . . . . . . . . . . 29
REDEMPTIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 9.02. . . . . . . . . . . . . . . . . . . . . . . . . 30
DETERMINATION OF NET ASSET VALUE AND VALUATION OF PORTFOLIO
ASSETS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 9.03. . . . . . . . . . . . . . . . . . . . . . . . . 30
SUSPENSION OF THE RIGHT OF REDEMPTION. . . . . . . . . . . . . . . 32
Section 9.04. . . . . . . . . . . . . . . . . . . . . . . . . 32
REDEMPTION OF SHARES IN ORDER TO QUALIFY AS REGULATED INVESTMENT
COMPANY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 9.05. . . . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE X. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
LIMITATION OF LIABILITY AND INDEMNIFICATION . . . . . . . . . . . . . . 33
NO PERSONAL LIABILITY OF TRUSTEES, OFFICERS, EMPLOYEES,
OR AGENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 10.01 . . . . . . . . . . . . . . . . . . . . . . . . 33
INDEMNIFICATION OF TRUSTEES, OFFICERS, EMPLOYEES, AGENTS . . . . . 34
Section 10.02 . . . . . . . . . . . . . . . . . . . . . . . . 34
LIABILITY OF SHAREHOLDERS; INDEMNIFICATION . . . . . . . . . . . . 35
Section 10.03 . . . . . . . . . . . . . . . . . . . . . . . . 35
NO BOND REQUIRED OF TRUSTEES . . . . . . . . . . . . . . . . . . . 35
Section 10.04 . . . . . . . . . . . . . . . . . . . . . . . . 35
NO DUTY OF INVESTIGATION; NOTICE IN TRUST INSTRUMENTS, ETC . . . . 35
Section 10.05 . . . . . . . . . . . . . . . . . . . . . . . . 35
RELIANCE ON EXPERTS, ETC.. . . . . . . . . . . . . . . . . . . . . 36
Section 10.06 . . . . . . . . . . . . . . . . . . . . . . . . 36
SHAREHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 10.07 . . . . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE XI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
TRUST NOT A PARTNERSHIP. . . . . . . . . . . . . . . . . . . . . . 37
Section 11.01 . . . . . . . . . . . . . . . . . . . . . . . . 37
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<PAGE>
TRUSTEES' GOOD FAITH ACTION, EXPERT ADVICE, NO BOND OR SURETY. . . 38
Section 11.02 . . . . . . . . . . . . . . . . . . . . . . . . 38
ESTABLISHMENT OF RECORD DATES. . . . . . . . . . . . . . . . . . . 38
Section 11.03 . . . . . . . . . . . . . . . . . . . . . . . . 38
TERMINATION OF TRUST . . . . . . . . . . . . . . . . . . . . . . . 39
Section 11.04 . . . . . . . . . . . . . . . . . . . . . . . . 39
REORGANIZATION . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 11.05 . . . . . . . . . . . . . . . . . . . . . . . . 40
FILING OF COPIES, REFERENCES, HEADINGS . . . . . . . . . . . . . . 41
Section 11.06 . . . . . . . . . . . . . . . . . . . . . . . . 41
APPLICABLE LAW . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 11.07 . . . . . . . . . . . . . . . . . . . . . . . . 42
AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 11.08 . . . . . . . . . . . . . . . . . . . . . . . . 43
FISCAL YEAR. . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 11.09 . . . . . . . . . . . . . . . . . . . . . . . . 43
USE OF THE WORD "NAVELLIER . . . . . . . . . . . . . . . . . . . . 44
Section 11.10 . . . . . . . . . . . . . . . . . . . . . . . . 44
PROVISIONS IN CONFLICT WITH LAW. . . . . . . . . . . . . . . . . . 44
Section 11.11 . . . . . . . . . . . . . . . . . . . . . . . . 44
</TABLE>
iv
<PAGE>
DECLARATION OF TRUST
OF
THE AMERICAN TIGER FUNDS
THIS TRUST INSTRUMENT is made September 9, 1998 by Louis G. Navellier, Arjen
Kuyper, Barry Sander, Joel Rossman, and Jacques Delacroix (the "Trustees").
WHEREAS, the Trustees desire to establish a business trust for the
investment and reinvestment of funds contributed thereto;
NOW, THEREFORE, the Trustees declare that all money and property
contributed to the trust hereunder shall be held and managed in trust as a
series open end management investment company under this Trust Instrument as
herein set forth below.
ARTICLE I
NAMES AND DEFINITIONS
NAME
SECTION 1.01. The name of the trust created hereby is "The American Tiger
Funds."
DEFINITIONS.
SECTION 1.02. Wherever used herein, unless otherwise required by the
context or specifically provided:
(a) "Bylaws" means the Bylaws referred to in Article IV, Section 4.01(e)
hereof, as from time to time amended;
(b) The term "Commission" has the meaning given it in the 1940 Act. The
terms "Affiliated Person," "Assignment," "Interested Person," and "Principal
Underwriter" shall
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<PAGE>
have the meanings given them in the 1940 Act, as modified by or interpreted by
any applicable order or orders of the Commission or any rules or regulations
adopted or interpretive releases of the Commission thereunder. "Majority
Shareholder Vote" shall have the same meaning as the term "vote of a majority of
the outstanding voting securities" is given in the 1940 Act, as modified by or
interpreted by any applicable order or orders of the Commission or any rules or
regulations adopted or interpretive releases of the Commission thereunder.
(c) The "Delaware Act" refers to Chapter 38 of Title 12 of the Delaware
Code entitled "Treatment of Delaware Business Trusts," as it may be amended from
time to time.
(d) "Net Asset Value" means the net asset value of each Series of the
Trust determined in the manner provided in Article IX, Section 9.03 hereof;
(e) "Outstanding Shares" means those Shares shown from time to time in the
books of the Trust or its Transfer Agent as then issued and outstanding, or, if
Shares are not issued, then the Shares which would have been issued if Shares
had been issued, but shall not include Shares which have been redeemed or
repurchased by the Trust and which are at the time held in the treasury of the
Trust;
(f) "Series" or "Portfolio" means a series or portfolio of Shares of the
Trust established in accordance with the provisions of Article II, Section 2.06
hereof.
(g) "Shareholder" means a record owner of Outstanding Shares of the Trust;
(h) "Shares" means the equal proportionate transferable units of
beneficial interest into which the beneficial interest of each Series of the
Trust or class thereof shall be divided and may include fractions of Shares as
well as whole Shares;
(i) The "Trust" refers to The American Tiger Funds and reference to the
Trust, when applicable to one or more Series of the Trust, shall refer to any
such Series;
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<PAGE>
(j) The "Trustees" means the person or persons who has or have signed this
Trust Instrument, so long as he or they shall continue in office in accordance
with the terms hereof, and all other persons who may from time to time be duly
qualified and serving as Trustees in accordance with the provisions of
Article III hereof, and reference herein to a Trustee or to the Trustees shall
refer to the individual Trustees in their capacity as Trustees hereunder;
(k) "Trust Property" means any and all property, real or personal,
tangible or intangible, which is owned or held by or for the account of one or
more of the Trust or any Series, or the Trustees on behalf of the Trust or any
Series.
(l) The "1940 Act" refers to the Investment Company Act of 1940, and the
Rules and Regulations thereunder, as amended from time to time.
ARTICLE II
BENEFICIAL INTEREST
SHARES OF BENEFICIAL INTEREST
SECTION 2.01. The beneficial interest in the Trust shall be divided into
such transferable Shares of one or more separate and distinct Series or classes
of a Series as the Trustees shall from time to time create and establish. The
number of Shares of each Series, and class thereof, authorized hereunder is
unlimited. Each Share shall have no par value. All Shares issued hereunder,
including, without limitation, Shares issued in connection with a dividend in
Shares or a split or reverse split of Shares, shall be fully paid and
nonassessable.
ISSUANCE OF SHARES
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<PAGE>
SECTION 2.02. The Trustees in their discretion may, from time to time,
without vote of the Shareholders, issue Shares, in addition to the then issued
and outstanding Shares and Shares held in the treasury, to such party or parties
and for such amount and type of consideration, subject to applicable law,
including cash or securities, at such time or times and on such terms as the
Trustees may deem appropriate, and may in such manner acquire other assets
(including the acquisition of assets subject to, and in connection with, the
assumption of liabilities) and businesses. In connection with any issuance of
Shares, the Trustees may issue fractional Shares and Shares held in the
treasury. The Trustees may from time to time divide or combine the Shares into
a greater or lesser number without thereby changing the proportionate beneficial
interests in the Trust. Contributions to the Trust may be accepted for, and
Shares shall be redeemed as, whole Shares and/or 1/100th of a Share or integral
multiples thereof.
REGISTER OF SHARES AND SHARE CERTIFICATES
SECTION 2.03. A register shall be kept at the principal office of the
Trust or an office of the Trust's transfer agent which shall contain the names
and addresses of the Shareholders of each Series, the number of Shares of that
Series (or any class or classes thereof) held by them respectively, and a record
of all transfers thereof. As to Shares for which no certificate has been
issued, such register shall be conclusive as to who are the holders of the
Shares and who shall be entitled to receive dividends or other distributions or
otherwise to exercise or enjoy the rights of Shareholders. No Shareholder shall
be entitled to receive payment of any dividend or other distribution, nor to
have notice given him as herein or in the Bylaws provided, until he has given
his address to the transfer agent or such other officer or agent of the Trustees
as shall keep the said register for entry thereon. The Trustees, in their
discretion, may authorize the issuance of share certificates and promulgate
appropriate rules
4
<PAGE>
and regulations as to their use. Such certificates may be issuable for any
purpose limited in the Trustees' discretion. In the event that one or more
certificates are issued, whether in the name of a shareholder or a nominee, such
certificate or certificates shall constitute evidence of ownership of Shares for
all purposes, including transfer, assignment, or sale of such Shares, subject to
such limitations as the Trustees may, in their discretion, prescribe.
TRANSFER OF SHARES
SECTION 2.04. Except as otherwise provided by the Trustees, Shares shall
be transferable on the records of the Trust only by the record holder thereof or
by his agent thereunto duly authorized in writing, upon delivery to the Trustees
or the Trust's transfer agent of a duly executed instrument of transfer,
together with a Share certificate, if one is outstanding, and such evidence of
the genuineness of each such execution and authorization and of such other
matters as may be required by the Trustees. Upon such delivery the transfer
shall be recorded on the register of the Trust. Until such record is made, the
Shareholder of record shall be deemed to be holder of such Shares for all
purposes hereunder, and neither the Trustees nor the Trust, nor any transfer
agent or registrar nor any officer, employee, or agent of the Trust shall be
affected by any notice of the proposed transfer.
TREASURY SHARES
SECTION 2.05. Shares held in the treasury shall, until reissued pursuant
to Section 2.02 hereof, not confer any voting rights on the Trustees, nor shall
such Shares be entitled to any dividends or other distributions declared with
respect to the Shares.
ESTABLISHMENT OF SERIES
SECTION 2.06. The Trust created hereby shall consist of one or more
Series, and separate and distinct records shall be maintained by the Trust for
each Series and the assets
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<PAGE>
associated with any such Series shall be held and accounted for separately from
the assets of the Trust or any other Series. The Trustees shall have full power
and authority, in their sole discretion, and without obtaining any prior
authorization or vote of the Shareholders of any Series of the Trust, to
establish and designate and to change in any manner any such Series of Shares or
any classes of initial or additional Series and to fix such preferences, voting
powers, rights and privileges of such Series or classes thereof as the Trustees
may from time to time determine, to divide or combine the Shares or any Series
or classes thereof into a greater or lesser number, to classify or reclassify
any issued Shares or any Series or classes thereof into one or more Series or
classes of Shares, and to take such other action with respect to the Shares as
the Trustees may deem desirable. The establishment and designation of any
Series shall be effective upon the adoption of a resolution by a majority of the
Trustees setting forth such establishment and designation and the relative
rights and preferences of the Shares of such Series. A Series may issue any
number of Shares and need not issue shares. At any time that there are no
Shares outstanding of any particular Series previously established and
designated, the Trustees may by a majority vote abolish that Series and the
establishment and designation thereof.
All references to Shares in this Trust Instrument shall be deemed to be
Shares of any or all Series, or classes thereof, as the context may require.
All provisions herein relating to the Trust shall apply equally to each Series
of the Trust, and each class thereof, except as the context otherwise requires.
Each Share of a Series of the Trust shall represent an equal beneficial
interest in the net assets of such Series. Each holder of Shares of a Series
shall be entitled to receive his pro rata share of distributions of income and
capital gains, if any, made with respect to such
6
<PAGE>
Series. Upon redemption of his Shares, such Shareholder shall be paid solely
out of the funds and property of such Series of the Trust.
INVESTMENT IN THE TRUST
SECTION 2.07. The Trustees shall accept investments in any Series of the
Trust from such persons and on such terms as they may from time to time
authorize. At the Trustees' discretion, such investments, subject to applicable
law, may be in the form of cash or securities in which the affected Series is
authorized to invest, valued as provided in Article IX, Section 9.03 hereof.
Investments in a Series shall be credited to each Shareholder's account in the
form of full Shares at the Net Asset Value per Share next determined after the
investment is received; provided, however, that the Trustees may, in their sole
discretion, (a) fix the Net Asset Value per Share of the initial capital
contribution, (b) impose a sales charge, contingent deferred sales charge or
12b-1 fees in connection with investments in the Trust in such manner and at
such time determined by the Trustees, or (c) issue fractional Shares.
ASSETS AND LIABILITIES OF SERIES
SECTION 2.08. All consideration received by the Trust for the issue or
sale of Shares of a particular Series, together with all assets in which such
consideration is invested or reinvested, all income, earnings, profits, and
proceeds thereof, including any proceeds derived from the sale, exchange, or
liquidation of such assets, and any funds or payments derived from any
reinvestment of such proceeds in whatever form the same may be, shall be held
and accounted for separately from the other assets of the Trust and of every
other Series and may be referred to herein as "assets belonging to" that Series.
The assets belonging to a particular Series shall belong to that Series for all
purposes, and to no other Series, subject only to the rights of creditors of
that Series. In addition, any assets, income, earnings,
7
<PAGE>
profits or funds, or payments and proceeds with respect thereto, which are not
readily identifiable as belonging to any particular Series, shall be allocated
by the Trustees between and among one or more of the Series in such manner as
the Trustees, in their sole discretion, deem fair and equitable. Each such
allocation shall be conclusive and binding upon the Shareholders of all Series
for all purposes, and such assets, income, earnings, profits or funds, or
payments and proceeds with respect thereto shall be assets belonging to that
Series. The assets belonging to a particular Series shall be so recorded upon
the books of the Trust, and shall be held by the Trustees in trust for the
benefit of the holders of Shares of that Series. The assets belonging to each
particular Series shall be charged with the liabilities of that Series and all
expenses, costs, charges, and reserves attributable to that Series. Any general
liabilities, expenses, costs, charges, or reserves of the Trust which are not
readily identifiable as belonging to any particular Series shall be allocated
and charged by the Trustees between or among any one or more of the Series in
such manner as the Trustees, in their sole discretion, deem fair and equitable.
Each such allocation shall be conclusive and binding upon the Shareholders of
all Series for all purposes. Without limitation of the foregoing provisions of
this Section 2.08, but subject to the right of the Trustees in their discretion
to allocate general liabilities, expenses, costs, charges, or reserves as herein
provided, the debts, liabilities, obligations and expenses incurred, contracted
for or otherwise existing with respect to a particular Series shall be
enforceable against the assets of such Series only, and not against the assets
of the Trust generally. Notice of this contractual limitation on inter-Series
liabilities may, in the Trustees' sole discretion, be set forth in the
certificate of trust of the Trust (whether originally or by amendment) as filed
or to be filed in the Office of the Secretary of State of the State of Delaware
pursuant to the Delaware Act, and upon the giving of such notice in the
certificate of trust, the statutory provisions of
8
<PAGE>
Section 3804 of the Delaware Act relating to limitations on inter-Series
liabilities (and the statutory effect under Section 3804(a) of setting forth
such notice in the certificate of trust) shall become applicable to the Trust
and each Series. Any person extending credit to, contracting with, or having
any claim against any Series may look only to the assets of that Series to
satisfy or enforce any debt, liability, obligation or expense incurred,
contracted for, or otherwise existing with respect to that Series. No
Shareholder or former Shareholder of any Series shall have a claim on or any
right to any assets allocated or belonging to any other Series.
NO PREEMPTIVE RIGHTS
SECTION 2.09. Shareholders shall have no preemptive or other right to
subscribe to any additional Shares or other securities issued by the Trust or
the Trustees, whether of the same or other Series.
PERSONAL LIABILITY OF SHAREHOLDERS
SECTION 2.10. Pursuant to Section 3803(a) of the Delaware Act, each
Shareholder of the Trust and of each Series shall not be personally liable for
the debts, liabilities, obligations and expenses incurred by, contracted for, or
otherwise existing with respect to, the Trust or by or on behalf of any Series.
The Trustees shall have no power to bind any Shareholder personally or to call
upon any Shareholder for the payment of any sum of money or assessment
whatsoever other than such as the Shareholder may at any time personally agree
to pay by way of subscription for any Shares or otherwise. Every note, bond,
contract, or other undertaking issued by or on behalf of the Trust or the
Trustees relating to the Trust or to a Series shall include a recitation
limiting the obligation represented thereby to the Trust or to one or more
Series and its or their assets (but the omission of such a recitation shall not
operate to bind any Shareholder or Trustee of the Trust).
9
<PAGE>
ASSENT TO TRUST INSTRUMENT
SECTION 2.11. Every Shareholder, by virtue of having purchased a Share or
Interest shall become a Shareholder and shall be held to have expressly assented
and agreed to be bound by the terms hereof, and shall further be held to have
expressly assented to and agreed that he/she or it has relied solely on the
Prospectus, Registration Statement, and Statement of Additional Information and
any written sales material given him in connection with the offering and his
investment in this Fund and has NOT relied on any other representation, promise,
or statement by any agent, broker, dealer, or other person or entity not
expressly contained in said written documents.
ARTICLE III
THE TRUSTEES
MANAGEMENT OF THE TRUST
SECTION 3.01. The Trustees shall have exclusive and absolute control over
the Trust Property and over the business of the Trust to the same extent as if
the Trustees were the sole owners of the Trust Property and business in their
own right, but with such powers of delegation as may be permitted by this Trust
Instrument. The Trustees shall have power to conduct the business of the Trust
and carry on its operations in any and all of its branches and maintain offices
both within and without the State of Delaware, in any and all states of the
United States of America, in the District of Columbia, in any and all
commonwealths, territories, dependencies, colonies, or possessions of the United
States of America, and in any foreign jurisdiction, and to do all such other
things and execute all such instruments as they deem necessary, proper, or
desirable in order to promote the interests of the Trust, although such things
are not herein specifically mentioned. Any determination as to what is
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<PAGE>
in the interests of the Trust made by the Trustees in good faith shall be
conclusive. In construing the provisions of this Trust Instrument, the
presumption shall be in favor of a grant of power to the Trustees.
The enumeration of any specific power in this Trust Instrument shall not be
construed as limiting the aforesaid power. The powers of the Trustees may be
exercised without order of or resort to any court.
Except for the Trustees named herein or appointed to fill vacancies
pursuant to Section 3.04 of this Article III, the Trustees shall be elected by
the Shareholders owning of record a plurality of the Shares voting at a meeting
of Shareholders. Such a meeting shall be held on a date fixed by the Trustees.
In the event that less than a majority of the Trustees holding office have been
elected by Shareholders, the Trustees then in office will call a Shareholders'
meeting for the election of Trustees.
INITIAL TRUSTEES
SECTION 3.02. The initial Trustees shall be the persons named herein. On
a date fixed by the Trustees, the Shareholders shall elect five (5) Trustees, as
specified by the Trustees pursuant to Section 3.06 of this Article III.
TERM OF OFFICE OF TRUSTEES
SECTION 3.03. The Trustees shall hold office during the lifetime of this
Trust, and until its termination as herein provided; except (a) that any Trustee
may resign his trust by written instrument signed by him and delivered to the
other Trustees, which shall take effect upon such delivery or upon such later
date as is specified therein; (b) that any Trustee may be removed at any time by
written instrument, signed by at least two-thirds of the number of Trustees
prior to such removal, specifying the date when such removal shall become
effective; (c) that any Trustee who requests in writing to be retired or who has
died, become
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physically or mentally incapacitated by reason of disease or otherwise, or is
otherwise unable to serve, may be retired by written instrument signed by a
majority of the other Trustees, specifying the date of his retirement; and
(d) that a Trustee may be removed at any meeting of the Shareholders of the
Trust by a vote of Shareholders owning at least two-thirds of the outstanding
Shares.
VACANCIES AND APPOINTMENT OF TRUSTEES
SECTION 3.04. In case of the declination to serve, death, resignation,
retirement, removal, physical or mental incapacity by reason of disease or
otherwise, or a Trustee is otherwise unable to serve, or an increase in the
number of Trustees, a vacancy shall occur. Whenever a vacancy in the Board of
Trustees shall occur, until such vacancy is filled, the other Trustees shall
have all the powers hereunder and the certificate of the other Trustees of such
vacancy shall be conclusive. In the case of an existing vacancy, the remaining
Trustees shall fill such vacancy by appointing such other person as they in
their discretion shall see fit consistent with the limitations under the 1940
Act. Such appointment shall be evidenced by a written instrument signed by a
majority of the Trustees in office or by resolution of the Trustees, duly
adopted, which shall be recorded in the minutes of a meeting of the Trustees,
whereupon the appointment shall take effect.
An appointment of a Trustee may be made by the Trustees then in office in
anticipation of a vacancy to occur by reason of retirement, resignation, or
increase in number of Trustees effective at a later date, provided that said
appointment shall become effective only at or after the effective date of said
retirement, resignation, or increase in number of Trustees. As soon as any
Trustee appointed pursuant to this Section 3.04 shall have accepted this trust,
the trust estate shall vest in the new Trustee or Trustees, together with the
continuing Trustees, without any further act or conveyance, and he shall be
deemed a
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Trustee hereunder. The power to appoint a Trustee pursuant to this Section 3.04
is subject to the provisions of Section 16(a) of the 1940 Act.
TEMPORARY ABSENCE OF TRUSTEE
SECTION 3.05. Any Trustee may, by power of attorney, delegate his power
for a period not exceeding six months at any one time to any other Trustee or
Trustees, provided that in no case shall less than two Trustees personally
exercise the other powers hereunder except as herein otherwise expressly
provided.
NUMBER OF TRUSTEES
SECTION 3.06. The number of Trustees shall be five (5) or such number as
shall be fixed from time to time by a majority of the Trustees.
EFFECT OF DEATH, RESIGNATION, ETC., OF A TRUSTEE
SECTION 3.07. The declination to serve, death, resignation, retirement,
removal, incapacity, or inability of the Trustees, or any one of them, shall not
operate to terminate the Trust or to revoke any existing agency created pursuant
to the terms of this Trust Instrument.
OWNERSHIP OF ASSETS OF THE TRUST
SECTION 3.08. The assets of the Trust and of each Series shall be held
separate and apart from any assets now or hereafter held in any capacity other
than as Trustee hereunder by the Trustees or any successor Trustees. Legal
title in all of the assets of the Trust and the right to conduct any business
shall at all times be considered as vested in the Trustees on behalf of the
Trust, except that the Trustees may cause legal title to any Trust Property to
be held by, or in the name of the Trust, or in the name of any person as
nominee. No Shareholder shall be deemed to have a severable ownership in any
individual asset of the Trust or of any Series or any right of partition or
possession thereof, but each Shareholder shall have, except as otherwise
provided for herein, a proportionate undivided beneficial
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interest in the Trust or Series. The Shares shall be personal property giving
only the rights specifically set forth in this Trust Instrument.
ARTICLE IV
POWERS OF THE TRUSTEES
POWERS
SECTION 4.01. The Trustees in all instances shall act as principals, and
are and shall be free from the control of the Shareholders. The Trustees shall
have full power and authority to do any and all acts and to make and execute any
and all contracts and instruments that they may consider necessary or
appropriate in connection with the management of the Trust. The Trustees shall
not in any way be bound or limited by present or future laws or customs in
regard to trust investments, but shall have full authority and power to make any
and all investments which they, in their sole discretion, shall deem proper to
accomplish the purpose of this Trust without recourse to any court or other
authority. Subject to any applicable limitation in this Trust Instrument or the
Bylaws of the Trust and applicable federal law, the Trustees shall have power
and authority, including but not limited,
(a) To invest and reinvest cash and other property, and to hold cash or
other property uninvested, without in any event being bound or limited by any
present or future law or custom in regard to investments by trustees, and to
sell, exchange, lend, pledge, mortgage, hypothecate, write options on and lease
any or all of the assets of the Trust;
(b) To operate as and carry on the business of an investment company, and
exercise all the powers necessary and appropriate to the conduct of such
operations;
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(c) To borrow money and in this connection issue notes or other evidence
of indebtedness; to secure borrowings by mortgaging, pledging, or otherwise
subjecting as security the Trust Property; to endorse, guarantee, or undertake
the performance of an obligation or engagement of any other Person and to lend
Trust Property;
(d) To provide for the distribution of interests of the Trust either
through a principal underwriter in the manner hereinafter provided for or by the
Trust itself, or both, or otherwise pursuant to a plan of distribution of any
kind;
(e) To adopt Bylaws not inconsistent with this Trust Instrument providing
for the conduct of the business of the Trust and to amend and repeal them to the
extent that they do not reserve that right to the Shareholders; such Bylaws
shall be deemed incorporated and included in this Trust Instrument;
(f) To elect and remove such officers and appoint and terminate such
agents as they consider appropriate;
(g) To employ one or more banks, trust companies, or companies that are
members of a national securities exchange, or such other entities as the
Commission may permit as custodians of any assets of the Trust subject to any
conditions set forth in this Trust Instrument or in the Bylaws.;
(h) To retain one or more transfer agents and shareholder servicing
agents, or both;
(i) To set record dates in the manner provided herein or in the Bylaws;
(j) To delegate such authority as they consider desirable to any officers
of the Trust and to any investment adviser, manager, custodian, underwriter, or
other agent or independent contractor;
(k) To sell or exchange any or all of the assets of the Trust, subject to
the provisions of Article XI, Section 11.04(b) hereof;
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(l) To vote or give assent, or exercise any rights of ownership, with
respect to stock or other securities or property; and to execute and deliver
powers of attorney to such person or persons as the Trustees shall deem proper,
granting to such person or persons such power and discretion with relation to
securities or property as the Trustees shall deem proper;
(m) To exercise powers and rights of subscription or otherwise which in
any manner arise out of ownership of securities;
(n) To hold any security or property in a form not indicating any trust,
whether in bearer, book entry, unregistered, or other negotiable form; or either
in the name of the Trust or in the name of a custodian or a nominee or nominees,
subject in either case to proper safeguards according to the usual practice of
Delaware business trusts or investment companies;
(o) to establish separate and distinct Series with separately defined
investment objectives and policies and distinct investment purposes in
accordance with the provisions of Article II thereof and to establish classes of
such Series having relative rights, powers, and duties as they may provide
consistent with applicable law;
(p) Subject to the provisions of Section 3804(a) of the Delaware Act, to
allocate assets, liabilities, and expenses of the Trust to a particular Series
or to apportion the same between or among two or more Series, provided that any
liabilities or expenses incurred by a particular Series shall be payable solely
out of the assets belonging to that Series as provided for in Article II hereof;
(q) To consent to or participate in any plan for the reorganization,
consolidation, or merger of any corporation or concern, any security of which is
held in the Trust; to consent to any contract, lease, mortgage, purchase, or
sale of property by such corporation or concern, and to pay calls or
subscriptions with respect to any security held in the Trust;
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(r) To compromise, arbitrate, or otherwise adjust claims in favor of or
against the Trust or any matter in controversy including, but not limited to,
claims for taxes;
(s) To make distributions of income and of capital gains to Shareholders
in the manner hereinafter provided;
(t) To establish, from time to time, a minimum investment for Shareholders
in the Trust or in one or more Series or class, and to require the redemption of
the Shares of any Shareholders whose investment is less than such minimum upon
giving notice to such Shareholder;
(u) To establish one or more committees, to delegate any of the powers of
the Trustees to said committees and to adopt a committee charter providing for
such responsibilities, membership (including Trustees, officers, or other agents
of the Trust therein) and any other characteristics of said committees as the
Trustees may deem proper. Notwithstanding the provisions of this Article IV,
and in addition to such provisions or any other provision of this Trust
Instrument or of the Bylaws, the Trustees may by resolution appoint a committee
consisting of less than the whole number of Trustees then in office, which
committee may be empowered to act for and bind the Trustees and the Trust, as if
the acts of such committee were the acts of all the Trustees then in office,
with respect to the institution, prosecution, dismissal, settlement, review, or
investigation of any action, suit, or proceeding which shall be pending or
threatened to be brought before any court, administrative agency, or other
adjudicatory body;
(v) To interpret the investment policies, practices, or limitations of any
Series;
(w) To establish a registered office and have a registered agent in the
State of Delaware; and
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(x) In general to carry on any other business in connection with or
incidental to any of the foregoing powers, to do everything necessary, suitable,
or proper for the accomplishment of any purpose or the attainment of any object
or the furtherance of any power hereinbefore set forth, either alone or in
association with others, and to do every other act or thing incidental or
appurtenant to or growing out of or connected with the aforesaid business or
purposes, objects or powers.
The foregoing clauses shall be construed both as objects and powers, and
the foregoing enumeration of specific powers shall not be held to limit or
restrict in any manner the general powers of the Trustees. Any action by one or
more of the Trustees in their capacity as such hereunder shall be deemed an
action on behalf of the Trust or the applicable Series, and not an action in an
individual capacity.
The Trustees shall not be limited to investing in obligations maturing
before the possible termination of the Trust.
No one dealing with the Trustees shall be under any obligation to make any
inquiry concerning the authority of the Trustees, or to see to the application
of any payments made or property transferred to the Trustees or upon their
order.
ISSUANCE AND REPURCHASE OF SHARES
SECTION 4.02. The Trustees shall have the power to issue, sell,
repurchase, redeem, retire, cancel, acquire, hold, resell, reissue, dispose of,
and otherwise deal in Shares and, subject to the provisions set forth in
Article II and Article IX, to apply to any such repurchase, redemption,
retirement, cancellation, or acquisition of Shares any funds or property of the
Trust, or the particular Series of the Trust, with respect to which such Shares
are issued.
TRUSTEES AND OFFICERS AS SHAREHOLDERS
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SECTION 4.03. Any Trustee, officer, or other agent of the Trust may
acquire, own, and dispose of Shares to the same extent as if he were not a
Trustee, officer, or agent; and the Trustees may issue and sell or cause to be
issued and sold Shares to and buy such Shares from any such person or any firm
or company in which he is interested, subject only to the general limitations
herein contained as to the sale and purchase of such Shares; and all subject to
any restrictions which may be contained in the Bylaws.
ACTION OF THE TRUSTEES
SECTION 4.04. The Trustees shall act by majority vote at a meeting duly
called or by unanimous written consent without a meeting or by telephone meeting
provided a quorum of Trustees participate in any such telephone meeting, unless
the 1940 Act requires that a particular action be taken only at a meeting at
which the Trustees are present in person. At any meeting of the Trustees, a
majority of the Trustees shall constitute a quorum. Meetings of the Trustees
may be called orally or in writing by the Chairman of the Board of Trustees or
by any two other Trustees. Notice of the time, date, and place of all meetings
of the Trustees shall be given by the party calling the meeting to each Trustee
by telephone, telefax, or telegram sent to his home or business address at least
24 hours in advance of the meeting or by written notice mailed to his home or
business address at least 72 hours in advance of the meeting. Notice need not
be given to any Trustee who attends the meeting without objecting to the lack of
notice or who executes a written waiver of notice with respect to the meeting.
Any meeting conducted by telephone shall be deemed to take place at the
principal office of the Trust, as determined by the Bylaws or by the Trustees.
Subject to the requirements of the 1940 Act, the Trustees by majority vote may
delegate to any one or more of their number their authority to approve
particular matters or take particular actions on behalf of the Trust. Written
consents or waivers of the Trustees may be executed
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in one or more counterparts. Execution of a written consent or waiver and
delivery thereof to the Trust may be accomplished by telefax.
CHAIRMAN OF THE TRUSTEES
SECTION 4.05. The Trustees shall appoint one of their number to be
Chairman of the Board of Trustees. The Chairman shall preside at all meetings
of the Trustees, shall be responsible for the execution of policies established
by the Trustees and the administration of the Trust, and may be (but is not
required to be) the chief executive, financial and/or accounting officer of the
Trust.
PRINCIPAL TRANSACTIONS
SECTION 4.06. Except to the extent prohibited by applicable law, the
Trustees may, on behalf of the Trust, buy any securities from or sell any
securities to, or lend any assets of the Trust to, any Trustee or officer of the
Trust or any firm of which any such Trustee or officer is a member acting as
principal, or have any such dealings with any investment adviser, distributor,
or transfer agent for the Trust or with any Interested Person of such person;
and the Trust may employ any such person, or firm or company in which such
person is an Interested Person, as broker, legal counsel, registrar, investment
adviser, distributor, transfer agent, dividend disbursing agent, custodian, or
in any other capacity upon customary terms.
ARTICLE V
EXPENSES OF THE TRUST
TRUSTEE REIMBURSEMENT
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SECTION 5.01. Subject to the provisions of Article II, Section 2.08
hereof, the Trustees shall be reimbursed from the Trust estate or the assets
belonging to the appropriate Series for their expenses and disbursements,
including, without limitation, fees and expenses of Trustees who are not
Interested Persons of the Trust, interest expense, taxes, fees and commissions
of every kind, expenses of pricing Trust portfolio securities, expenses of
issue, repurchase and redemption of shares, including expenses attributable to a
program of periodic repurchases or redemptions, expenses of registering and
qualifying the Trust and its Shares under federal and state laws and regulations
or under the laws of any foreign jurisdiction, charges of third parties,
including investment advisers, managers, custodians, transfer agents, portfolio
accounting and/or pricing agents, and registrars, expenses of preparing and
setting up in type prospectuses and statements of additional information and
other related Trust documents, expenses of printing and distributing
prospectuses sent to existing Shareholders, auditing and legal expenses, reports
to Shareholders, expenses of meetings of Shareholders and proxy solicitations
therefor, insurance expenses, association membership dues and for such
non-recurring items as may arise, including litigation to which the Trust (or a
Trustee acting as such) is a party, and for all losses and liabilities by them
incurred in administering the Trust, and for the payment of such expenses,
disbursements, losses, and liabilities the Trustees shall have a lien on the
assets belonging to the appropriate Series, or in the case of an expense
allocable to more than one Series, on the assets of each such Series, prior to
any rights or interests of the Shareholders thereto. This Section shall not
preclude the Trust from directly paying any of the aforementioned fees and
expenses.
ARTICLE VI
INVESTMENT ADVISER, PRINCIPAL UNDERWRITER, AND TRANSFER AGENT
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INVESTMENT ADVISER
SECTION 6.01. The Trustees may in their discretion, from time to time,
enter into an investment advisory or management contract or contracts with
respect to the Trust or any Series whereby the other party or parties to such
contract or contracts shall undertake to furnish the Trustees with such
management, investment advisory, statistical and research facilities and
services, and such other facilities and services, if any, and all upon such
terms and conditions as the Trustees may, in their discretion, determine;
provided, however, that the initial approval and entering into of such contract
or contracts shall be subject to a Majority Shareholder Vote. Notwithstanding
any other provision of this Trust Instrument, the Trustees may authorize any
investment adviser (subject to such general or specific instructions as the
Trustees may from time to time adopt) to effect purchases, sales, or exchanges
of portfolio securities, other investment instruments of the Trust, or other
Trust Property on behalf of the Trustees, or may authorize any officer, agent,
or Trustee to effect such purchases, sales, or exchanges pursuant to
recommendations of the investment adviser (and all without further action by the
Trustees). Any such purchases, sales, and exchanges shall be deemed to have
been authorized by all of the Trustees.
The Trustees may authorize, subject to applicable requirements of the 1940
Act, including those relating to Shareholder approval, the investment adviser to
employ, from time to time, one or more sub-advisers to perform such of the acts
and services of the investment adviser, and upon such terms and conditions, as
may be agreed upon between the investment adviser and sub-adviser. Any
reference in this Trust Instrument to the investment adviser shall be deemed to
include such sub-advisers, unless the context otherwise requires.
PRINCIPAL UNDERWRITER
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SECTION 6.02. The Trustees may in their discretion from time to time enter
into an exclusive or non-exclusive underwriting contract or contracts providing
for the sale of Shares, whereby the Trust may either agree to sell Shares to the
other party to the contract or appoint such other party its sales agent for such
Shares. In either case, the contract shall be on such terms and conditions, if
any, as may be prescribed in the Bylaws, and such further terms and conditions
as the Trustees may in their discretion determine not inconsistent with the
provisions of this Article VI, or the Bylaws; and such contract may also provide
for the repurchase or sale of Shares by such other party as principal or as
agent of the Trust.
TRANSFER AGENT
SECTION 6.03. The Trustees may, in their discretion, from time to time
enter into one or more transfer agency and Shareholder service contracts whereby
the other party or parties shall undertake to furnish the Trustees with transfer
agency and Shareholder services. The contract or contracts shall be on such
terms and conditions as the Trustees may, in their discretion, determine not
inconsistent with the provisions of this Trust Instrument or of the Bylaws.
PARTIES TO CONTRACT
SECTION 6.04. Any contract of the character described in Sections 6.01,
6.02, and 6.03 of this Article VI or any contract of the character described in
Article VIII hereof may be entered into with any corporation, firm, partnership,
trust, or association, although one or more of the Trustees or officers of the
Trust may be an officer, director, trustee, shareholder, or member of such other
party to the contract, and no such contract shall be invalidated or rendered
void or voidable by reason of the existence of any relationship, nor shall any
person holding such relationship be disqualified from voting on or executing the
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same in his capacity as Shareholder and/or Trustee, nor shall any person holding
such relationship be liable merely by reason of such relationship for any loss
or expense to the Trust under or by reason of said contract or accountable for
any profit realized directly or indirectly therefrom, provided that the contract
when entered into was not inconsistent with the provisions of this Article VI or
Article VIII hereof or of the Bylaws. The same person (including a firm,
corporation, partnership, trust, or association) may be the other party to
contracts entered into pursuant to Sections 6.01, 6.02, and 6.03 of this
Article VI or pursuant to Article VIII hereof, and any individual may be
financially interested or otherwise affiliated with persons who are parties to
any or all of the contracts mentioned in this Section 6.04.
PROVISIONS AND AMENDMENTS
SECTION 6.05. Any contract entered into pursuant to Sections 6.01 or 6.02
of this Article VI shall be consistent with and subject to the requirements of
Section 15 of the 1940 Act or other applicable Act of Congress hereafter enacted
with respect to its continuance in effect, its termination, and the method of
authorization and approval of such contract or renewal thereof, and no amendment
to any contract, entered into pursuant to Section 6.01 of this Article VI shall
be effective unless assented to in a manner consistent with the requirements of
said Section 15, as modified by any applicable rule, regulation, or order of the
Commission.
ARTICLE VII
SHAREHOLDERS' VOTING POWERS AND MEETINGS
VOTING POWERS
SECTION 7.01. The Shareholders shall have power to vote only (i) for the
election of Trustees as provided in Article III, Sections 3.01 and 3.02 hereof,
(ii) for the removal of
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Trustees as provided in Article III, Section 3.03(d) hereof, (iii) with respect
to any investment advisory or management contract as provided in Article VI,
Sections 6.01 and 6.05 hereof, and (iv) with respect to such additional matters
relating to the Trust as may be required by law, by this Trust Instrument, or
the Bylaws, or any registration of the Trust with the Commission or any state,
or as the Trustees may consider desirable.
On any matter submitted to a vote of the Shareholders, all Shares shall be
voted separately by individual Series, except (i) when required by the 1940 Act,
Shares shall be voted in the aggregate and not by individual Series; and
(ii) when the Trustees have determined that the matter affects the interests of
more than one Series, then the Shareholders of all such Series shall be entitled
to vote thereon. The Trustees may also determine that a matter affects only the
interests of one or more classes of a Series, in which case any such matter
shall be voted on by such class or classes. Each whole Share shall be entitled
to one vote as to any matter on which it is entitled to vote, and each
fractional Share shall be entitled to a proportionate fractional vote. There
shall be no cumulative voting in the Election of Trustees. Shares may be voted
in person or by proxy or in any manner provided for in the Bylaws. A proxy may
be given in writing. The Bylaws may provide that proxies may also, or may
instead, be given by any electronic or telecommunications device or in any other
manner. Notwithstanding anything else herein or in the Bylaws, in the event a
proposal by anyone other than the officers or Trustees of the Trust is submitted
to a vote of the Shareholders of one or more Series or of the Trust, or in the
event of any proxy contest or proxy solicitation or proposal in opposition to
any proposal by the officers or Trustees of the Trust, Shares may be voted only
in person or by written proxy. Until Shares are issued, the Trustees may
exercise all rights of Shareholders and may take any action required or
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permitted by law, this Trust Instrument, or any of the Bylaws of the Trust to be
taken by Shareholders.
MEETINGS
SECTION 7.02. The first Shareholders' meeting shall be held in order to
elect Trustees as specified in Section 3.02 of Article III hereof at the
principal office of the Trust or such other place as the Trustees may designate.
Meetings may be held within or without the State of Delaware. Special meetings
of the Shareholders of any Series may be called by the Trustees and shall be
called by the Trustees upon the written request of Shareholders owning at least
one-tenth of the Outstanding Shares entitled to vote. Whenever ten or more
Shareholders meeting the qualifications set forth in Section 16(c) of the 1940
Act, as the same may be amended from time to time, seek the opportunity of
furnishing materials to the other Shareholders with a view to obtaining
signatures on such a request for a meeting, the Trustees shall comply with the
provisions of said Section 16(c) with respect to providing such Shareholders
access to the list of the Shareholders of record of the Trust or the mailing of
such materials to such Shareholders of record, subject to any rights provided to
the Trust or any Trustees provided by said Section 16(c). Notice shall be sent,
by First Class Mail or such other means determined by the Trustees, at least 15
days prior to any such meeting.
QUORUM AND REQUIRED VOTE
SECTION 7.03. One-third of Shares entitled to vote in person or by proxy
shall be a quorum for the transaction of business at a Shareholders' meeting,
except that where any provision of law or of this Trust Instrument permits or
requires that holders of any Series shall vote as a Series (or that holders of a
class shall vote as a class), then one-third of the aggregate number of Shares
of that Series (or that class) entitled to vote shall be necessary to constitute
a quorum for the transaction of business by that Series (or that class). Any
lesser
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number shall be sufficient for adjournments. Any adjourned session or sessions
may be held, within a reasonable time after the date set for the original
meeting, without the necessity of further notice. Except when a larger vote is
required by law or by any provision of this Trust Instrument or the Bylaws, a
majority of the Shares voted in person or by proxy shall decide any questions
and a plurality shall elect a Trustee, provided that where any provision of law
or of this Trust Instrument permits or requires that the holders of any Series
shall vote as a Series (or that the holders of any class shall vote as a class),
then a majority of the Shares present in person or by proxy of that Series or,
if required by law, a Majority Shareholder Vote of that Series (or class), voted
on the matter in person or by proxy shall decide that matter insofar as that
Series (or class) is concerned. Shareholders may act by unanimous written
consent. Actions taken by Series (or class) may be consented to unanimously in
writing by Shareholders of that Series.
ARTICLE VIII
CUSTODIAN
APPOINTMENT AND DUTIES
SECTION 8.01. The Trustees shall at all times employ a bank, a company
that is a member of a national securities exchange, or a trust company as
custodian with authority as its agent, but subject to such restrictions,
limitations, and other requirements, if any, as may be contained in the Bylaws
of the Trust:
(1) to hold the securities owned by the Trust and deliver the same upon
written order or oral order confirmed in writing;
(2) to receive and receipt for any moneys due to the Trust and deposit the
same in its own banking department or elsewhere as the Trustees may direct; and
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(3) to disburse such funds upon orders or vouchers;
and the Trust may also employ such custodian as its agent:
(4) to keep the books and accounts of the Trust or of any Series or class
and furnish clerical and accounting services; and
(5) to compute, if authorized to do so by the Trustees, the Net Asset
Value of any Series, or class thereof, in accordance with the provisions hereof;
all upon such basis of compensation as may be agreed upon between the Trustees
and the custodian.
The Trustees may also authorize the custodian to employ one or more
sub-custodians from time to time to perform such of the acts and services of the
custodian, and upon such terms and conditions, as may be agreed upon between the
custodian and sub-custodian and approved by the Trustees, provided that in every
case such sub-custodian shall be a bank, a company that is a member of a
national securities exchange, or a trust company organized under the laws of the
United States or one of the states thereof, or such other person as may be
permitted by the Commission, or otherwise in accordance with the 1940 Act.
CENTRAL CERTIFICATE SYSTEM
SECTION 8.02. Subject to such rules, regulations, and orders as the
Commission may adopt, the Trustees may direct the custodian to deposit all or
any part of the securities owned by the Trust in a system for the central
handling of securities established by a national securities exchange or a
national securities association registered with the Commission under the
Securities Exchange Act of 1934, as amended, or such other person as may be
permitted by the Commission, or otherwise in accordance with the 1940 Act,
pursuant to which system all securities of any particular class or series of any
issuer deposited within the system are treated as fungible and may be
transferred or pledged by bookkeeping entry without physical
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delivery of such securities, provided that all such deposits shall be subject to
withdrawal only upon the order of the Trust or its custodians, sub-custodians,
or other agents.
ARTICLE IX
DISTRIBUTIONS AND REDEMPTIONS
DISTRIBUTIONS
SECTION 9.01. (a) The Trustees may from time to time declare and pay
dividends or other distributions with respect to any Series. The amount of such
dividends or distributions and the payment of them and whether they are in cash
or any other Trust Property shall be wholly in the discretion of the Trustees.
(b) Dividends and other distributions may be paid or made to the
Shareholders of record at the time of declaring a dividend or other distribution
or among the Shareholders of record at such other date or time or dates or times
as the Trustees shall determine, which dividends or distributions, at the
election of the Trustees, may be paid pursuant to a standing resolution or
resolutions adopted only once or with such frequency as the Trustees may
determine. The Trustees may adopt and offer to Shareholders such dividend
reinvestment plans, cash dividend payout plans, or related plans as the Trustees
shall deem appropriate.
(c) Anything in this Trust Instrument to the contrary notwithstanding, the
Trustees may at any time declare and distribute a stock dividend pro rata among
the Shareholders of a particular Series, or class thereof, as of the record date
of that Series fixed as provided in Section (b) hereof.
REDEMPTIONS
SECTION 9.02. In case any holder of record of Shares of a particular
Series desires to dispose of his Shares or any portion thereof, he may deposit
at the office of the transfer
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agent or other authorized agent of that Series a written request or such other
form of request as the Trustees may from time to time authorize, requesting that
the Series purchase the Shares in accordance with this Section 9.02; and the
Shareholder so requesting shall be entitled to require the Series to purchase,
and the Series or the principal underwriter of the Series shall purchase his
said Shares, but only at the Net Asset Value thereof (as described in
Section 9.03 of this Article IX). The Series shall make payment for any such
Shares to be redeemed, as aforesaid, in cash or property from the assets of that
Series and payment for such Shares shall be made by the Series or the principal
underwriter of the Series to the Shareholder of record within seven (7) days
after the date upon which the request is effective. Upon redemption, shares
shall become Treasury shares and may be re-issued from time to time.
DETERMINATION OF NET ASSET VALUE AND VALUATION OF PORTFOLIO ASSETS
SECTION 9.03. The term "Net Asset Value" of any Series shall mean that
amount by which the assets of that Series exceed its liabilities, all as
determined by or under the direction of the Trustees. Such value shall be
determined separately for each Series and shall be determined on such days and
at such times as the Trustees may determine. Such determination shall be made
with respect to securities for which market quotations are readily available, at
the market value of such securities; and with respect to other securities and
assets, at the fair value as determined in good faith by the Trustees; provided,
however, that the Trustees, without Shareholder approval, may alter the method
of valuing portfolio securities insofar as permitted under the 1940 Act and the
rules, regulations, and interpretations thereof promulgated or issued by the
Commission, or insofar as permitted by any Order of the Commission applicable to
the Series. The Trustees may delegate any of
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their powers and duties under this Section 9.03 with respect to valuation of
assets and liabilities. The resulting amount, which shall represent the total
Net Asset Value of the particular Series, shall be divided by the total number
of shares of that Series outstanding at the time, and the quotient so obtained
shall be the Net Asset Value per Share of that Series. At any time the Trustees
may cause the Net Asset Value per Share last determined to be determined again
in similar manner, and may fix the time when such redetermined value shall
become effective. If, for any reason, the net income of any Series, determined
at any time, is a negative amount, the Trustees shall have the power with
respect to that Series (i) to offset each Shareholder's pro rata share of such
negative amount from the accrued dividend account of such Shareholder, or
(ii) to reduce the number of Outstanding Shares of such Series by reducing the
number of Shares in the account of each Shareholder by a pro rata portion of
that number of full and fractional Shares which represents the amount of such
excess negative net income, or (iii) to cause to be recorded on the books of
such Series an asset account in the amount of such negative net income (provided
that the same shall thereupon become the property of such Series with respect to
such Series and shall not be paid to any Shareholder), which account may be
reduced by the amount of dividends declared thereafter upon the Outstanding
Shares of such Series on the day such negative net income is experienced, until
such asset account is reduced to zero; (iv) to combine the methods described in
clauses (i) and (ii) and (iii) of this sentence; or (v) to take any other action
they deem appropriate, in order to cause (or in order to assist in causing) the
Net Asset Value per Share of such Series to remain at a constant amount per
Outstanding Share immediately after each such determination and declaration.
The Trustees shall also have the power not to declare a dividend out of net
income for the purpose of causing the Net Asset Value per Share to be increased.
The Trustees shall not be required to adopt, but may at any
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time adopt, discontinue, or amend the practice of maintaining the Net Asset
Value per Share of the Series at a constant amount.
SUSPENSION OF THE RIGHT OF REDEMPTION
SECTION 9.04. The Trustees may declare a suspension of the right of
redemption or postpone the date of payment as permitted under the 1940 Act.
Such suspension shall take effect at such time as the Trustees shall specify but
not later than the close of business on the business day next following the
declaration of suspension, and thereafter there shall be no right of redemption
or payment until the Trustees shall declare the suspension at an end. In the
case of a suspension of the right of redemption, a Shareholder may either
withdraw his request for redemption or receive payment based on the Net Asset
Value per Share next determined after the termination of the suspension. In the
event that any Series is divided in to classes, the provisions of this
Section 9.03, to the extent applicable as determined in the discretion of the
Trustees and consistent with applicable law, may be equally applied to each such
class.
REDEMPTION OF SHARES IN ORDER TO QUALIFY AS REGULATED INVESTMENT COMPANY
SECTION 9.05. If the Trustees shall, at any time and in good faith, be of
the opinion that direct or indirect ownership of Shares of any Series has or may
become concentrated in any Person to an extent which would disqualify any Series
as a regulated investment company under the Internal Revenue Code, then the
Trustees shall have the power (but not the obligation) by lot or other means
deemed equitable by them (i) to call for redemption by any such person of a
number, or principal amount, of Shares sufficient to maintain or bring the
direct or indirect ownership of Shares into conformity with the requirements for
such qualification, and (ii) to refuse to transfer or issue Shares to any person
whose acquisition of
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the Shares in question would result in such disqualification. The redemption
shall be effected at the redemption price and in the manner provided in this
Article IX.
The holders of Shares shall upon demand disclose to the Trustees in writing
such information with respect to direct and indirect ownership of Shares as the
Trustees deem necessary to comply with the provisions of the Internal Revenue
Code, or to comply with the requirements of any other taxing authority.
ARTICLE X
LIMITATION OF LIABILITY AND INDEMNIFICATION
NO PERSONAL LIABILITY OF TRUSTEES, OFFICERS, EMPLOYEES, OR AGENTS
SECTION 10.01. No Trustee, officer, employee, or agent of the Trust
shall be subject to any personal liability whatsoever, in his official or
individual capacity, to any Person, other than the Trust or its Shareholders,
in connection with Trust Property or the affairs of the Trust, save only that
arising from his bad faith, willful misfeasance, gross negligence, or reckless
disregard of his duty to such Person; and all such Persons shall look solely to
the Trust Property for satisfaction of claims of any nature against a Trustee,
officer, employee, or agent of the Trust arising in connection with the affairs
of the Trust. No Trustee, officer, employee, or agent of the Trust shall be
liable to the Trust, Shareholders of Interests therein, or to any Trustee,
officer, employee, or agent thereof for any action or failure to act (including,
without limitation, the failure to compel in any way any former or acting
Trustee to redress any breach of trust) except for his own bad faith, willful
misfeasance, gross negligence, or reckless disregard of his duties.
INDEMNIFICATION OF TRUSTEES, OFFICERS, EMPLOYEES, AGENTS
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SECTION 10.02. The Trust shall indemnify each of its Trustees, officers,
employees, and agents (including Persons who serve at its request as directors,
officers, or trustees of another organization in which it has any interest, as a
shareholder, creditor, or otherwise) against all liabilities and expenses
(including amounts paid in satisfaction of judgments, in compromise, as fines
and penalties, and as counsel fees) reasonably incurred by him in connection
with the defense or disposition of any action, suit, or other proceeding,
whether civil or criminal, in which he may be involved or with which he may be
threatened, while in office or thereafter, by reason of his being or having been
such a Trustee, officer, employee, or agent, except with respect to any matter
as to which he shall have been adjudicated to have acted in bad faith, willful
misfeasance, gross negligence, or reckless disregard of his duties; provided,
however, that as to any matter disposed of by a compromise payment by such
Person, pursuant to a consent decree or otherwise, no indemnification either for
said payment or for any other expenses shall be provided unless there has been a
determination that such Person did not engage in bad faith, willful misfeasance,
gross negligence, or reckless disregard of the duties involved in the conduct of
his office by the court or other body approving the settlement or other
disposition or by a reasonable determination, based upon review of readily
available facts (as opposed to a full trial-type inquiry), that he did not
engage in such conduct by written opinion from independent legal counsel
approved by the Trustees. The rights accruing to any Person under these
provisions shall not exclude any other right to which he may be lawfully
entitled; provided that no Person may satisfy any right of indemnity or
reimbursement granted herein or in Section 10.01 or to which he may be otherwise
entitled except out of the Trust Property. The Trustees may make advance
payments in connection with indemnification under this Section 10.02, provided
that the
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indemnified Person shall have given a written undertaking to reimburse the Trust
in the event it is subsequently determined that he is not entitled to such
indemnification.
LIABILITY OF SHAREHOLDERS; INDEMNIFICATION
SECTION 10.03. "Shareholders" shall mean as of any particular time any
or all holders of record of interests in the Trust or in Trust Property, as the
case may be, at such time. The Trust shall indemnify and hold each Shareholder
harmless from and against any claim or liability to which such Shareholder may
become subject solely by reason of his being or having been a Shareholder and
not because of such Shareholder's acts or omissions or for some other reason,
and shall reimburse such Shareholder for all legal and other expenses reasonably
incurred by him in connection with any such claim or liability (upon proper and
timely request by the Shareholder). The rights accruing to a Shareholder under
this Section 10.03 shall not exclude any other right to which such Shareholder
may be lawfully entitled, nor shall anything herein contained restrict the right
of the Trust to indemnify or reimburse a Shareholder in any appropriate
situation even though not specifically provided herein.
NO BOND REQUIRED OF TRUSTEES
SECTION 10.04. No Trustee shall, as such, be obligated to give any bond or
surety or other security for the performance of any of his duties hereunder.
NO DUTY OF INVESTIGATION; NOTICE IN TRUST INSTRUMENTS, ETC.
SECTION 10.05. No purchaser, lender, or other Person dealing with the
Trustees or any officer, employee, or agent of the Trust shall be bound to make
any inquiry concerning the validity of any transaction purporting to be made by
the Trustees or by said officer, employee, or agent, or be liable for the
application of money or property paid, loaned, or delivered to, or on the order
of, the Trustees or of said officer, employee, or agent. Every
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obligation, contract, instrument, certificate, or other interest or undertaking
of the Trust, and every other act or thing whatsoever executed in connection
with the Trust, shall be conclusively taken to have been executed or done by the
executors thereof only in their capacity as Trustees, officers, employees, or
agents of the Trust. Every written obligation, contract, instrument,
certificate, or other interest or undertaking of the Trust made by the Trustees
or by any officer, employee, or agent of the Trust, in his capacity as such,
shall contain an appropriate recital to the effect that the Trustee, officer,
employee, and agent of the Trust shall not personally be bound by or liable
thereunder, nor shall resort be had to their private property for the
satisfaction of any obligation or claim thereunder, and appropriate references
shall be made therein to the Declaration, and may contain any further recital
which they may deem appropriate, but the omission of such recital shall not
operate to impose personal liability on any of the Trustees, officers,
employees, or agents of the Trust. The Trustees may maintain insurance for the
protection of the Trust Property, Shareholders, Trustees, officers, employees,
and agents in such amount as the Trustees shall deem advisable.
RELIANCE ON EXPERTS, ETC.
SECTION 10.06. Each Trustee and officer or employee of the Trust shall, in
the performance of his duties, be fully and completely justified and protected
with regard to any act or any failure to act resulting from reliance in good
faith upon the books of account or other records of the Trust, upon an opinion
of counsel, or upon reports made to the Trust by any of its officers or
employees or by any Investment Adviser, Administrator, accountant, appraiser, or
other experts or consultants selected with reasonable care by the Trustees,
officers, or employees of the Trust, regardless of whether such counsel or
expert may also be a Trustee.
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SHAREHOLDERS
SECTION 10.07. In case any Shareholder or former Shareholder of any Series
shall be held to be personally liable solely by reason of his being or having
been a Shareholder of such Series and not because of his acts or omissions or
for some other reason, the Shareholder or former Shareholder (or his heirs,
executors, administrators, or other legal representatives, or, in the case of a
corporation or other entity, its corporate or other general successor) shall be
entitled out of the assets belonging to the applicable Series to be held
harmless from and indemnified against all loss and expense arising from such
liability. The Trust, on behalf of the affected Series, shall, upon request by
the Shareholder, assume the defense of any claim made against the Shareholder
for any act or obligation of the Series and satisfy any judgement thereon from
the assets of the Series.
ARTICLE XI
MISCELLANEOUS
TRUST NOT A PARTNERSHIP
SECTION 11.01. It is hereby expressly declared that a trust and not a
partnership is created hereby. No Trustee hereunder shall have any power to
bind personally either the Trust's officers or any Shareholder. All persons
extending credit to, contracting with, or having any claim against the Trust or
the Trustees shall look only to the assets of the appropriate Series or (if the
Trustees shall have yet to have established Series) of the Trust for payment
under such credit, contract, or claim; and neither the Shareholders nor the
Trustees, nor any of their agents, whether past, present, or future, shall be
personally liable therefor. Nothing in this Trust Instrument shall protect a
Trustee against any liability to which the Trustee would otherwise be subject by
reason of willful misfeasance, bad faith,
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gross negligence, or reckless disregard of the duties involved in the conduct of
the office of Trustee hereunder.
TRUSTEES' GOOD FAITH ACTION, EXPERT ADVICE, NO BOND OR SURETY
SECTION 11.02. The exercise by the Trustees of their powers and
discretions hereunder in good faith and with reasonable care under the
circumstances then prevailing shall be binding upon everyone interested.
Subject to the provisions of Article X hereof and to Section 11.01 of this
Article XI, the Trustees shall not be liable for errors of judgment or mistakes
of fact or law. The Trustees may take advice of counsel or other experts with
respect to the meaning and operation of this Trust Instrument, and subject to
the provisions of Article X hereof and Section 11.01 of this Article XI, shall
be under no liability for any act or omission in accordance with such advice or
for failing to follow such advice. The Trustees shall not be required to give
any bond as such, nor any surety if a bond is obtained.
ESTABLISHMENT OF RECORD DATES
SECTION 11.03. The Trustees may close the Share transfer books of the
Trust for a period not exceeding sixty (60) days preceding the date of any
meeting of Shareholders, or the date for the payment of any dividends or other
distributions, or the date for the allotment of rights, or the date when any
change or conversion or exchange of Shares shall go into effect; or in lieu of
closing the stock transfer books as aforesaid, the Trustees may fix in advance a
date, not exceeding sixty (60) days preceding the date of any meeting of
Shareholders, or the date for payment of any dividend or other distribution, or
the date for the allotment of rights, or the date when any change or conversion
or exchange of Shares shall go into effect, as a record date for the
determination of the Shareholders entitled to notice of, and to vote at, any
such meeting, or entitled to receive payment of any such dividend or other
distribution, or to any such allotment of rights, or to exercise the rights in
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respect of any such change, conversion, or exchange of Shares, and in such case
such Shareholders and only such Shareholders as shall be Shareholders of record
on the date so fixed shall be entitled to such notice of, and to vote at, such
meeting, or to receive payment of such dividend or other distribution, or to
receive such allotment or rights, or to exercise such rights, as the case may
be, notwithstanding any transfer of any Shares on the books of the Trust after
any such record date fixed as aforesaid.
TERMINATION OF TRUST
SECTION 11.04. (a) This Trust shall continue without limitation of time
but subject to the provisions of sub-section (b) of this Section 11.04.
(b) The Trustees may, subject to a Majority Shareholder Vote of each
Series affected by the matter or, if applicable, to a Majority Shareholder Vote
of the Trust, and subject to a vote of a majority of the Trustees:
(i) sell and convey all or substantially all of the assets of the
Trust or any affected Series to another trust, partnership, association, or
corporation, or to a separate series of shares thereof, organized under the laws
of any state which trust, partnership, association, or corporation is an
open-end management investment company as defined in the 1940 Act, or is a
series thereof, for adequate consideration which may include the assumption of
all outstanding obligations, taxes, and other liabilities, accrued or
contingent, of the Trust or any affected Series, and which may include shares of
beneficial interest, stock, or other ownership interests of such trust,
partnership, association, or corporation or of a series thereof; or
(ii) at any time sell and convert into money all of the assets of the
Trust or any affected Series.
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Upon making reasonable provision, in the determination of the Trustees, for
the payment of all such liabilities in either (i) or (ii), by such assumption or
otherwise, the Trustees shall distribute the remaining proceeds or assets (as
the case may be) of each Series (or class) ratably among the holders of Shares
of that Series then outstanding.
(c) Upon completion of the distribution of the remaining proceeds or the
remaining assets as provided in sub-section (b), the Trust or any affected
Series shall terminate, and the Trustees and the Trust shall be discharged of
any and all further liabilities and duties hereunder and the right, title, and
interest of all parties with respect to the Trust or Series shall be cancelled
and discharged.
Upon termination of the Trust, following completion of winding up of its
business, the Trustees shall cause a certificate of cancellation of the Trust's
certificate of trust to be filed in accordance with the Delaware Act, which
certificate of cancellation may be signed by any one Trustee.
REORGANIZATION
SECTION 11.05. Notwithstanding anything else herein, the Trustees, in
order to change the form of organization of the Trust, may, without prior
Shareholder approval, (i) cause the Trust to merge or consolidate with or into
one or more trusts, partnerships, associations, or corporations so long as the
surviving or resulting entity is an open-end management investment company under
the 1940 Act, or is a series thereof, that will succeed to or assume the Trust's
registration under that Act and which is formed, organized, or existing under
the laws of a state, commonwealth, possession, or colony of the United States,
or (ii) cause the Trust to incorporate under the laws of Delaware. Any
agreement of merger or consolidation or certificate of merger may be signed by a
majority of Trustees, and facsimile signatures conveyed by electronic or
telecommunication means shall be valid.
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Pursuant to and in accordance with the provisions of Section 3815(f) of the
Delaware Act, and notwithstanding anything to the contrary contained in this
Trust Instrument, an agreement of merger or consolation approved by the Trustees
in accordance with this Section 11.05 may effect any amendment to the Trust
Instrument or effect the adoption of a new trust instrument of the Trust if it
is the surviving or resulting trust in the merger or consolidation.
FILING OF COPIES, REFERENCES, HEADINGS
SECTION 11.06. The original or a copy of this Trust Instrument and of each
amendment hereof or Trust Instrument supplemental hereto shall be kept at the
office of the Trust where it may be inspected by any Shareholder. Anyone
dealing with the Trust may rely on a certificate by an officer or Trustee of the
Trust as to whether or not any such amendments or supplements have been made and
as to any matters in connection with the Trust hereunder, and with the same
effect as if it were the original, may rely on a copy certified by an officer or
Trustee of the Trust to be a copy of this Trust Instrument or of any such
amendment or supplemental Trust Instrument. In this Trust Instrument or in any
such amendment or supplemental Trust Instrument, references to this Trust
Instrument, and all expressions like "herein," hereof," and "hereunder," shall
be deemed to refer to this Trust Instrument as amended or affected by any such
supplemental Trust Instrument. All expressions like "his," "he," and "him,"
shall be deemed to include the feminine and neuter, as well as masculine,
genders. Headings are placed herein for convenience of reference only, and in
case of any conflict, the text of this Trust Instrument, rather than the
headings, shall control. This Trust Instrument may be executed in any number of
counterparts, each of which shall be deemed an original.
APPLICABLE LAW
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SECTION 11.07. The trust set forth in this instrument is made in the State
of Delaware, and the Trust and this Trust Instrument, and the rights and
obligations of the Trustees and Shareholders hereunder, are to be governed by
and construed and administered according to the Delaware Act and the laws of
said State; provided, however, that there shall not be applicable to the Trust,
the Trustees, or this Trust Instrument (a) the provisions of Section 3540 of
Title 12 of the Delaware Code or (b) any provisions of the laws (statutory or
common) of the State of Delaware (other than the Delaware Act) pertaining to
trusts which relate to or regulate (i) the filing with any court or governmental
body or agency of trustee accounts or schedules of trustee fees and charges,
(ii) affirmative requirements to post bonds for trustees, officers, agents, or
employees of a trust, (iii) the necessity for obtaining court or other
governmental approval concerning the acquisition, holding, or disposition of
real or personal property, (iv) fees or other sums payable to trustees,
officers, agents, or employees of a trust, (v) the allocation of receipts and
expenditures to income or principal, (vi) restrictions or limitations on the
permissible nature, amount, or concentration of trust investments or
requirements relating to the titling, storage, or other manner of holding of
trust assets, or (vii) the establishment of fiduciary or other standards or
responsibilities or limitations on the acts or powers of trustees, which are
inconsistent with the limitations or liabilities or authorities and powers of
the Trustees set forth or referenced in this Trust Instrument. The Trust shall
be of the type commonly called a "business trust," and without limiting the
provisions hereof, the Trust may exercise all powers which are ordinarily
exercised by such a trust under Delaware law. The Trust specifically reserves
the right to exercise any of the powers or privileges afforded to trusts or
actions that may be engaged in by trusts under the Delaware Act, and the absence
of a specific reference herein to any such
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power, privilege, or action shall not imply that the Trust may not exercise such
power or privilege or take such actions.
AMENDMENTS
SECTION 11.08. Except as specifically provided herein, the Trustees may,
without shareholder vote, amend, or otherwise supplement this Trust Instrument
by making an amendment, a Trust Instrument supplemental hereto, or an amended
and restated trust instrument. Shareholders shall have the right to vote (i) on
any amendment which would affect their right to vote granted in Section 7.01 of
Article VII hereof, (ii) on any amendment to this Section 11.08, (iii) on any
amendment as may be required by law or by the Trust's registration statement
filed with the Commission, and (iv) on any amendment submitted to them by the
Trustees. Any amendment required or permitted to be submitted to Shareholders
which, as the Trustees determine, shall affect the Shareholders of one or more
Series shall be authorized by vote of the Shareholders of each Series
affected,and no vote of shareholders of a Series not affected shall be required.
Notwithstanding anything else herein, any amendment to Article X hereof shall
not limit the rights to indemnification or insurance provided therein with
respect to action or omission of Covered Persons prior to such amendment.
FISCAL YEAR
SECTION 11.09. The fiscal year of the Trust shall end on December 31;
provided, however, that the Trustees may, without Shareholder approval, change
the fiscal year of the Trust.
USE OF THE WORD "NAVELLIER"
SECTION 11.10. Louis G. Navellier ("Navellier") has consented to, and
granted a non-exclusive license for, the use by any Series or by the Trust of
the identifying word
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"Navellier" in the name of any Series or of the Trust. Such consent is subject
to revocation by Navellier in its discretion, if Navellier or any entity owned
or controlled by Louis Navellier or subsidiary or affiliate thereof is not
employed as the investment adviser of each Series of the Trust. As between the
Trust and Navellier, Navellier controls the use of the name of the Trust insofar
as such name contains the identifying word "Navellier." Navellier may, from
time to time, use the identifying word "Navellier" in other connections and for
other purposes, including, without limitation, in the names of other investment
companies, corporations, or businesses which it may manage, advise, sponsor, or
own, or in which it may have a financial interest. Navellier may require the
Trust or any Series thereof to cease using the identifying word "Navellier" in
the name of the Trust or any Series thereof if the Trust or any Series thereof
ceases to employ Navellier or a subsidiary or affiliate thereof as investment
adviser.
PROVISIONS IN CONFLICT WITH LAW
SECTION 11.11. The provisions of this Trust Instrument are severable, and
if the Trustees shall determine, with the advice of counsel, that any of such
provisions are in conflict with the 1940 Act, the regulated investment company
provisions of the Internal Revenue Code, or with other applicable laws and
regulations, the conflicting provision shall be deemed never to have constituted
a part of this Trust Instrument; provided, however, that such determination
shall not affect any of the remaining provisions of this Trust Instrument, or
render invalid or improper any action taken or omitted prior to such
determination. If any provision of this Trust Instrument shall be held invalid
or unenforceable in any jurisdiction, such invalidity or unenforceability shall
attach only to such provision in such jurisdiction and shall not in any manner
affect such provisions in any other jurisdiction or any other provision of this
Trust Instrument in any jurisdiction.
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IN WITNESS WHEREOF, the undersigned, being all of the initial Trustees of
the Trust, have executed this instrument this 9th day of September, 1998.
---------------------------------------
Louis G. Navellier, as Trustee
and not individually.
---------------------------------------
Barry Sander, as Trustee
and not individually.
---------------------------------------
Joel Rossman, as Trustee
and not individually.
---------------------------------------
Arjen Kuyper, as Trustee
and not individually.
---------------------------------------
Jacques Delacroix, as Trustee
and not individually.
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EXHIBIT 99.2
BYLAWS
OF
THE AMERICAN TIGER FUNDS
These Bylaws of The American Tiger Funds (the "Trust"), a Delaware business
trust, are subject to the Trust Instrument of the Trust dated September 9, 1998
as from time to time amended, supplemented or restated (the "Trust Instrument").
Capitalized terms used herein which are defined in the Trust Instrument are used
as therein defined.
ARTICLE I
PRINCIPAL OFFICE
The principal office of the Trust shall be located at One East Liberty,
Third Floor, Reno, Nevada, 89501, or such other location as the Trustees may,
from time to time, determine. The Trust may establish and maintain such other
offices and places of business as the Trustees may, from time to time,
determine.
ARTICLE II
OFFICERS AND THEIR ELECTION
OFFICERS
SECTION 1. The officers of the Trust shall be a President, a Treasurer, a
Secretary, and such other officers as the Trustees may from time to time elect.
The Trustees may delegate to any officer or committee the power to appoint any
subordinate officers or agents. It shall not be necessary for any Trustee or
other officer to be a holder of Shares in the Trust.
ELECTION OF OFFICERS
SECTION 2. The Treasurer and Secretary shall be chosen by the Trustees.
The President shall be chosen by and from the Trustees. Two or more offices may
be held by a single person. Subject to the provisions of Section 12 hereof, the
President, the Treasurer, and the Secretary shall each hold office until their
successors are chosen and qualified, and all other officers shall hold office at
the pleasure of the Trustees.
RESIGNATIONS
SECTION 3. Any officer of the Trust may resign, notwithstanding Section 2
hereof, by filing a written resignation with the President, the Trustees, or the
Secretary, which resignation shall take effect on being so filed or at such time
as may be therein specified.
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ARTICLE III
POWERS AND DUTIES OF OFFICERS AND TRUSTEES
MANAGEMENT OF THE TRUST - GENERAL
SECTION 1. The business and affairs of the Trust shall be managed by, or
under the direction of, the Trustees, and they shall have all powers necessary
and desirable to carry out their responsibilities, so far as such powers are not
inconsistent with the laws of the State of Delaware, the Trust Instrument, or
with these Bylaws.
EXECUTIVE AND OTHER COMMITTEES
SECTION 2. The Trustees may elect from their own number an executive
committee, which shall have any or all the powers of the Trustees while the
Trustees are not in session. The Trustees may also elect from their own number
other committees from time to time. The number composing such committees and
the powers conferred upon the same are to be determined by vote of a majority of
the Trustees. All members of such committees shall hold such offices at the
pleasure of the Trustees. The Trustees may abolish any such committee at any
time. Any committee to which the Trustees delegate any of their powers or
duties shall keep records of its meetings and shall report its actions to the
Trustees. The Trustees shall have power to rescind any action of any committee,
but no such rescission shall have retroactive effect.
COMPENSATION
SECTION 3. Each Trustee and each committee member may receive such
compensation for his services and reimbursement for his expenses as may be fixed
from time to time by resolution of the Trustees.
CHAIRMAN OF THE TRUSTEES.
SECTION 4. The Trustees shall appoint from among their number a Chairman
who shall serve as such at the pleasure of the Trustees. When present, he shall
preside at all meetings of the Shareholders and the Trustees, and he may,
subject to the approval of the Trustees, appoint a Trustee to preside at such
meetings in his absence. He shall perform such other duties as the Trustees may
from time to time designate.
PRESIDENT
SECTION 5. The President shall be the chief executive officer of the Trust
and, subject to the direction of the Trustees, shall have general administration
of the business and policies of the Trust. Except as the Trustees may otherwise
order, the President shall have the power to grant, issue, execute, or sign such
powers of attorney, proxies, agreements, or other documents as may be deemed
advisable or necessary in the furtherance of the interests of the Trust or any
Series thereof. He shall also have the power to employ attorneys, accountants,
and other advisers and agents and counsel for the Trust. The President shall
perform such duties additional to all of the foregoing as the Trustees may from
time to time designate.
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TREASURER
SECTION 6. The Treasurer shall be the principal financial and accounting
officer of the Trust. He shall deliver all funds and securities of the Trust
which may come into his hands to such company as the Trustees shall employ as
Custodian in accordance with the Trust Instrument and applicable provisions of
law. He shall make annual reports regarding the business and condition of the
Trust, which reports shall be preserved in Trust records, and he shall furnish
such other reports regarding the business and condition of the Trust as the
Trustees may from time to time require. The Treasurer shall perform such
additional duties as the Trustees may from time to time designate.
SECRETARY
SECTION 7. The Secretary shall record in books kept for the purpose all
votes and proceedings of the Trustees and the Shareholders at their respective
meetings. He shall have the custody of the seal of the Trust. The Secretary
shall perform such additional duties as the Trustees may from time to time
designate.
VICE PRESIDENT
SECTION 8. Any Vice President of the Trust shall perform such duties as
the Trustees or the President may from time to time designate. At the request
or in the absence or disability of the President, the Vice President (or, if
there are two or more Vice Presidents, then the senior of the Vice Presidents
present and able to act) may perform all the duties of the President and, when
so acting, shall have all the powers of and be subject to all the restrictions
upon the President.
ASSISTANT TREASURER
SECTION 9. Any Assistant Treasurer of the Trust shall perform such duties
as the Trustees or the Treasurer may from time to time designate, and, in the
absence of the Treasurer, the senior Assistant Treasurer, present and able to
act, may perform all the duties of the Treasurer.
ASSISTANT SECRETARY
SECTION 10. Any Assistant Secretary of the Trust shall perform such duties
as the Trustees or the Secretary may from time to time designate, and, in the
absence of the Secretary, the senior Assistant Secretary, present and able to
act, may perform all the duties of the Secretary.
SUBORDINATE OFFICERS
SECTION 11. The Trustees from time to time may appoint such other officers
or agents as they may deem advisable, each of whom shall have such title, hold
office for such period, have such authority, and perform such duties as the
Trustees may determine. The Trustees from time to time may delegate to one or
more officers or committees of Trustees the power
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to appoint any such subordinate officers or agents and to prescribe their
respective terms of office, authorities, and duties.
SURETY BONDS
SECTION 12. The Trustees may require any officer or agent of the Trust to
execute a bond (including, without limitation, any bond required by the
Investment Company Act of 1940, as amended ("the 1940 Act") and the rules and
regulations of the Securities and Exchange Commission ("Commission") to the
Trust in such sum and with such surety or sureties as the Trustees may
determine, conditioned upon the faithful performance of his duties to the Trust,
including responsibility for negligence and for the accounting of any of the
Trust's property, funds, or securities that may come into his hands.
REMOVAL
SECTION 13. Any officer may be removed from office whenever, in the
judgment of the Trustees, the best interest of the Trust will be served thereby,
by the vote of a majority of the Trustees given at any regular meeting or any
special meeting of the Trustees. In addition, any officer or agent appointed in
accordance with the provisions of Section 11 hereof may be removed, either with
or without cause, by any officer upon whom such power of removal shall have been
conferred by the Trustees.
REMUNERATION
SECTION 14. The salaries or other compensation, if any, of the officers of
the Trust shall be fixed from time to time by resolution of the Trustees.
ARTICLE IV
SHAREHOLDERS' MEETINGS
SPECIAL MEETINGS
SECTION 1. A special meeting of the Shareholders shall be called by the
Secretary whenever (i) ordered by the Trustees or (ii) requested in writing by
the holder or holders of at least 10% of the Outstanding Shares entitled to
vote. If the Secretary, when so ordered or requested, refuses or neglects for
more than 30 days to call such special meeting, the Trustees or the Shareholders
so requesting may, in the name of the Secretary, call the meeting by giving
notice thereof in the manner required when notice is given by the Secretary. If
the meeting is a meeting of the Shareholders of one or more Series or classes of
Shares, but not a meeting of all Shareholders of the Trust, then only special
meetings of the Shareholders of such one or more Series or Classes shall be
called, and only the Shareholders of such one or more Series or Classes shall be
entitled to notice of and to vote at such meeting.
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NOTICES
SECTION 2. Except as above provided, notices of any meeting of the
Shareholders shall be given by the Secretary by delivering or mailing, postage
prepaid, to each Shareholder entitled to vote at said meeting, written or
printed notification of such meeting at least 15 days before the meeting, to
such address as may be registered with the Trust by the Shareholder. Notice of
any Shareholder meeting need not be given to any Shareholder if a written waiver
of notice, executed before or after such meeting, is filed with the record of
such meeting, or to any Shareholder who shall attend such meeting in person or
by proxy. Notice of adjournment of a Shareholders' meeting to another time or
place need not be given, if such time and place are announced at the meeting or
reasonable notice is given to persons present at the meeting and the adjourned
meeting is held within a reasonable time after the date set for the original
meeting.
VOTING - PROXIES
SECTION 3. Subject to the provisions of the Trust Instrument, Shareholders
entitled to vote may vote either in person or by proxy, provided that either
(i) an instrument authorizing such proxy to act is executed by the Shareholder
in writing and dated not more than 11 months before the meeting, unless the
instrument specifically provides for a longer period, or (ii) the Trustees adopt
by resolution an electronic, telephonic, computerized, or other alternative to
execution of a written instrument authorizing the proxy to act, which
authorization is received not more than 11 months before the meeting. Proxies
shall be delivered to the Secretary of the Trust or other person responsible for
recording the proceedings before being voted. A proxy with respect to Shares
held in the name of two or more persons shall be valid if executed by one of
them, unless at or prior to exercise of such proxy the Trust receives a specific
written notice to the contrary from any one of them. Unless otherwise
specifically limited by their terms, proxies shall entitle the holder thereof to
vote at any adjournment of a meeting. A proxy purporting to be exercised by or
on behalf of a Shareholder shall be deemed valid unless challenged at or prior
to its exercise, and the burden or proving invalidity shall rest on the
challenger. At all meetings of the Shareholders, unless the voting is conducted
by inspectors, all questions relating to the qualifications of voters, the
validity of proxies, and the acceptance or rejection of votes shall be decided
by the Chairman of the meeting. Except as otherwise provided herein or in the
Trust Instrument, as these Bylaws or such Trust Instrument may be amended or
supplemented from time to time, all matters relating to the giving, voting, or
validity of proxies shall be governed by the General Corporation Law of the
State of Delaware relating to proxies, and judicial interpretations thereunder,
as if the Trust were a Delaware corporation and the Shareholders were
shareholders of a Delaware corporation.
PLACE OF MEETING
SECTION 4. All special meetings of the Shareholders shall be held at the
principal place of business of the Trust or at such other place in the United
States as the Trustees may designate.
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ACTION WITHOUT A MEETING
SECTION 5. Any action to be taken by Shareholders may be taken without a
meeting if all Shareholders entitled to vote on the matter consent to the action
in writing and the written consents are filed with the records of meetings of
Shareholders of the Trust. Such consent shall be treated for all purposes as a
vote at a meeting of the Trustees held at the principal place of business of the
Trust.
ARTICLE V
TRUSTEES' MEETINGS
SPECIAL MEETINGS
SECTION 1. Special meetings of the Trustees may be called orally or in
writing by the Chairman of the Board of Trustees or any two other Trustees.
REGULAR MEETINGS
SECTION 2. Regular meetings of the Trustees may be held at such places and
at such times as the Trustees may from time to time determine; each Trustee
present at such determination shall be deemed a party calling the meeting, and
no call or notice will be required to such Trustee provided that any Trustee who
is absent when such determination is made shall be given notice of the
determination by the Chairman or any two other Trustees, as provided for in
Section 4.04 of the Trust Instrument.
QUORUM
SECTION 3. A majority of the Trustees shall constitute a quorum for the
transaction of business, and an action of a majority of the quorum shall
constitute action of the Trustees.
NOTICE
SECTION 4. Except as otherwise provided, notice of any special meeting of
the Trustees shall be given by the party calling the meeting to each Trustee, as
provided for in Section 4.04 of the Trust Instrument. A written notice may be
mailed, postage prepaid, addressed to him at his address as registered on the
books of the Trust, or, if not so registered, at his last known address.
PLACE OF MEETING
SECTION 5. All special meetings of the Trustees shall be held at the
principal place of business of the Trust or such other place as the Trustees may
designate. Any meeting may adjourn to any place.
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SPECIAL ACTION
SECTION 6. When all the Trustees shall be present at any meeting, however
called or wherever held, or shall assent to the holding of the meeting without
notice, or shall sign a written assent thereto filed with the record of such
meeting, the acts of such meeting shall be valid as if such meeting had been
regularly held.
ACTION BY CONSENT
SECTION 7. Any action by the Trustees may be taken without a meeting if a
written consent thereto is signed by all the Trustees and filed with the records
of the Trustees' meeting. Such consent shall be treated, for all purposes, as a
vote at a meeting of the Trustees held at the principal place of business of the
Trustees.
PARTICIPATION IN MEETINGS BY CONFERENCE TELEPHONE
SECTION 8. Trustees may participate in a meeting of Trustees by conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and such participation shall
constitute presence in person at such meeting. Any meeting conducted by
telephone shall be deemed to take place at and from the principal office of the
Trust.
ARTICLE VI
SHARES OF BENEFICIAL INTEREST
BENEFICIAL INTEREST
SECTION 1. The beneficial interest in the Trust shall at all times be
divided into such transferable Shares of one or more separate and distinct
Series, or classes thereof, as the Trustees shall from time to time create and
establish. The number of Shares is unlimited, and each Share of each Series or
class thereof shall be without par value and shall represent an equal
proportionate interest with each other Share in the Series, none having priority
or preference over another, except to the extent that such priorities or
preferences are established with respect to one or more classes of shares
consistent with applicable law and any rule or order of the Commission.
TRANSFER OF SHARES
SECTION 2. The Shares of the Trust shall be transferable, so as to affect
the rights of the Trust, only by transfer recorded on the books of the Trust, in
person, by attorney, or by written and notarized direction of the shareholder.
EQUITABLE INTEREST NOT RECOGNIZED
SECTION 3. The Trust shall be entitled to treat the holder of record of
any Share or Shares of beneficial interest as the holder in fact thereof, and
shall not be bound to recognize
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any equitable or other claim or interest in such Share or Shares on the part of
any other person except as may be otherwise expressly provided by law.
SHARE CERTIFICATE
SECTION 4. No certificates certifying the ownership of Shares shall be
issued except as the Trustees may otherwise authorize. The Trustees may issue
certificates to a Shareholder of any Series or class thereof for any purpose,
and the issuance of a certificate to one or more Shareholders shall not require
the issuance of certificates generally. In the event that the Trustees
authorize the issuance of Share certificates, such certificate shall be in the
form proscribed from time to time by the Trustees and shall be signed by the
President or a Vice President and by the Treasurer, Assistant Treasurer,
Secretary, or Assistant Secretary. Such signatures may be facsimiles if the
certificate is signed by a transfer or shareholder services agent or by a
registrar, other than a Trustee, officer, or employee of the Trust. In case any
officer who has signed or whose facsimile signature has been placed on such
certificate shall have ceased to be such officer before such certificate is
issued, it may be issued by the Trust with the same effect as if he or she were
such officer at the time of issue.
In lieu of issuing certificates for Shares, the Trustees or the transfer or
shareholder services agent may either issue receipts therefor or may keep
accounts upon the books of the Trust for the record holders of such Shares, who
shall in either case be deemed, for all purposes hereunder, to be the holders of
certificates for such Shares as if they had accepted such certificates and shall
be held to have expressly assented and agreed to the terms hereof.
LOSS OF CERTIFICATE
SECTION 5. In the case of the alleged loss or destruction or the
mutilation of a Share certificate, a duplicate certificate may be issued in
place thereof, upon such terms as the Trustees may prescribe.
DISCONTINUANCE OF ISSUANCE OF CERTIFICATES
SECTION 6. The Trustees may at any time discontinue the issuance of Share
certificates and may, by written notice to each Shareholder, require the
surrender of Share certificates to the Trust for cancellation. Such surrender
and cancellation shall not affect the ownership of Shares in the Trust.
ARTICLE VII
OWNERSHIP OF ASSETS OF THE TRUST
The Trustees, acting for and on behalf of the Trust, shall be deemed to
hold legal and beneficial ownership of any income earned on securities held by
the Trust issued by any business entity formed, organized, or existing under the
laws of any jurisdiction other than a state, commonwealth, possession, or colony
of the United States or the laws of the United States.
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ARTICLE VIII
INSPECTION OF BOOKS
The Trustees shall from time to time determine whether and to what extent,
and at what times and places, and under what conditions and regulations the
accounts and books of the Trust or any of them shall be open to the inspection
of the Shareholders; and no Shareholder shall have any right to inspect any
account or book or document of the Trust except as conferred by law or otherwise
by the Trustees or by resolution of the Shareholders.
ARTICLE IX
INSURANCE OF OFFICERS, TRUSTEES, AND EMPLOYEES
The Trust may purchase and maintain insurance on behalf of any Covered
Person or employee of the Trust, including any Covered Person or employee of the
Trust who is or was serving at the request of the Trust as a Trustee, officer,
or employee of a corporation, partnership, joint venture, trust, or in any other
capacity or in any other enterprise, against any liability asserted against him
and incurred by him in any such capacity or arising out of his status as such,
whether or not the Trustees would have the power to indemnify him against such
liability.
The Trust may not acquire or obtain a contract for insurance that protects
or purports to protect any Trustee or officer of the Trust against any liability
to the Trust or its Shareholders to which he would otherwise be subject by
reason of willful misfeasance, bad faith, gross negligence, or reckless
disregard of the duties involved in the conduct of his office.
ARTICLE X
SEAL
The seal of the Trust shall be circular in form bearing the inscription:
THE AMERICAN TIGER FUNDS - 1998
THE STATE OF DELAWARE
The form of the seal shall be subject to alteration by the Trustees, and
the seal may be used by causing it or a facsimile to be impressed or affixed or
printed or otherwise reproduced.
Any officer or Trustee of the Trust shall have authority to affix the seal
of the Trust to any document, instrument, or other paper executed and delivered
by or on behalf of the Trust; however, unless otherwise required by the
Trustees, the seal shall not be necessary to be placed on and its absence shall
not impair the validity of any document, instrument, or other paper executed by
or on behalf of the Trust.
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ARTICLE XI
FISCAL YEAR
The fiscal year of the Trust shall end on such date as the Trustees shall
from time to time determine.
ARTICLE XII
AMENDMENTS
These Bylaws may be amended at any meeting of the Trustees of the Trust by
a majority vote.
ARTICLE XIII
REPORTS TO SHAREHOLDERS
The Trustees shall at least semi-annually submit to the Shareholders a
written financial report of the Trust including financial statements which shall
be certified at least annually by independent public accountants.
XIV
HEADINGS
Headings are placed in these Bylaws for convenience of reference only, and
in case of any conflict, the text of these Bylaws rather than the headings shall
control.
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EXHIBIT 99.5
THE AMERICAN TIGER FUNDS
INVESTMENT ADVISORY AGREEMENT
AGREEMENT made as of the 9th day of September, 1998, by and between THE
AMERICAN TIGER 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 is currently comprised of one portfolio designated as the
"American Tiger Top 20 Portfolio" (the "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 Fund desires to retain the Adviser as investment adviser to
furnish advisory and portfolio management services to the Fund;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafter contained, the Fund and the Adviser agree as follows:
1. DUTIES AS ADVISER. The Fund hereby appoints the Adviser to act as the
investment adviser to the Fund with respect to all of the Fund's Portfolios (the
"Portfolios"), and, subject to the supervision of the Board of Trustees of the
Fund, to provide investment advisory services to the Fund 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
Fund 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 Fund, or the Custodian, including the placing of purchase and sale orders
on behalf of the Fund as it shall deem necessary and appropriate; (vi) to
furnish to or place at the disposal of the Fund such of the information,
evaluations, analyses, and opinions formulated or obtained by it in the
discharge of its duties as the Fund may, from time to time, reasonably request;
(vii) to take such actions necessary or appropriate to carry out the decisions
of the Fund's Board of Trustees; (viii) to make decisions for the Fund as to the
manner in which voting rights, rights to consent to trust action, and any other
rights pertaining to how the Fund's portfolio securities shall be exercised
("Portfolio Voting Rights"). The Fund has directed the
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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 Fund 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 Fund, furnish
the services of such members of the Adviser's organization as may be duly
elected to be officers of the Fund, subject to their individual consent to serve
and to any limitations imposed by law.
The Fund will pay or cause to be paid all other expenses of the Fund
(except for the expenses to be paid by the Fund'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 Fund, if any, (vii) auditing the Fund's books and accounts,
(viii) the cost of bookkeeping and accounting services, (ix) any and all Fund
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 Fund 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 Fund, (xiv) costs of printing and
mailing monthly statements and confirmations, (xv) expense of organizing the
Fund, (xvi) filing fees and expenses relating to the registration and
qualification of the Fund's shares under federal and/or state securities laws
and maintaining such registrations and qualifications and (vii) other expenses
properly payable by the Fund.
3. COMPENSATION OF THE ADVISER. For the services to be rendered by the
Adviser hereunder, the Fund shall pay to the Adviser, on a monthly basis, an
annual fee of one percent (1.00%) (the "Management Fee") of the Fund's average
daily net assets for The American Tiger Top 20 Portfolio. 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
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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 applicable 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 such 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 "average daily net assets" of each Portfolio for a particular period
shall be determined by adding together all calculations of net assets, as
regularly computed for such 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 Fund 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 Fund 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 A 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 Fund; or (b) by the vote of a majority (as defined in the Act) of the
outstanding voting securities of the fund, and, in addition, (c) by the vote of
a majority of the Trustees of the Fund 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 Fund, or by a vote of a majority (as
defined in the Act) of the outstanding voting securities of the Fund, 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 Fund. 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.
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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 Fund, 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 Fund) 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 Portfolios of the Fund to
which this Agreement is applicable.
This Agreement may be amended by agreement of the parties without the vote
or consent of the shareholders of the Fund 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 Fund 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 Fund and the Adviser and their respective successors.
9. NAME OF THE FUND. The Fund acknowledges that the names "Navellier"
and "American Tiger" are and shall remain the sole property of the Adviser,
notwithstanding the use thereof by the Fund. The Fund may use the name
"Navellier" 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 business of the Adviser and for only so long as Navellier Management,
Inc., remains as Adviser to the Fund. At such time as such an agreement shall
no longer be in effect, or Adviser's services have terminated, the Fund 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.
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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 Fund 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 Fund's agreement relating to the
performance of investment advisory services for the Fund, 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.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement on the day and year first above written in San Francisco,
California.
THE AMERICAN TIGER FUNDS
By:
----------------------------
Barry Sander, Trustee
By:
----------------------------
Attest: Joel Rossman, Trustee
/s/ By:
- ------------------------ ----------------------------
Samuel Kornhauser Arjen Kuyper, Trustee
By:
----------------------------
Jacques Delacroix, Trustee
5
<PAGE>
NAVELLIER MANAGEMENT, INC.
By:
----------------------------
Louis Navellier, President
Attest:
/s/
- ------------------------
Samuel Kornhauser
6
<PAGE>
EXHIBIT A
7
<PAGE>
INDEMNIFICATION AGREEMENT
The American Tiger Top 20 Portfolio of The American Tiger 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
8
<PAGE>
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
9
<PAGE>
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.
10
<PAGE>
ATTEST: THE AMERICAN TIGER TOP 20 PORTFOLIO OF THE
AMERICAN TIGER FUNDS
By:
- --------------------- ---------------------------------------
Louis G. Navellier, Trustee
By:
---------------------------------------
Barry Sander, Trustee
By:
---------------------------------------
Joel Rossman, Trustee
By:
---------------------------------------
Jacques Delacroix, Trustee
By:
---------------------------------------
Arjen Kuyper, Trustee
ATTEST: NAVELLIER MANAGEMENT, INC.
By:
- --------------------- ---------------------------------------
Louis Navellier, President
11
<PAGE>
EXHIBIT 99.6
DISTRIBUTION AGREEMENT
AGREEMENT, made as of this 9th day of September, 1998, by and between The
American Tiger Funds, a business trust organized under the laws of the State of
Delaware (the "Fund"), and Chatfield Dean & Co., a corporation (the
"Distributor").
W I T N E S S E T H
WHEREAS, the Fund is registering as an investment company under the
Investment Company Act of 1940, as amended (the "1940 Act"), and intends to
engage in business as an open-end management investment company;
WHEREAS, the Fund desires to employ the Distributor to act as principal
underwriter (as defined in the Act) with respect to the continuous offering of
its shares of common stock, at no par value (the "Shares), which shall initially
be sold in one series consisting of an equity portfolio (the "American Tiger Top
20 Portfolio"), along with any other series as may be created in the future,
from time to time (the "Portfolios"), 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 each of the Fund's Portfolios whether now
existing or hereafter created, 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
1
<PAGE>
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 FUND 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 Fund 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.
(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
2
<PAGE>
not equal an even cent, the public offering price may be adjusted to the nearest
cent. All payments to the Fund hereunder shall be made in the manner set forth
in Section 3(g).
(e) The net asset value of the shares of each Portfolio of the Fund
shall be determined by the Fund or any agent of the Fund once daily at the times
and otherwise in accordance with the terms set forth in the Prospectus and the
Statement of Additional Information and guidelines established by the Board of
Trustees of the Fund, from time to time.
(f) The Fund shall have the right to suspend the sale of the Shares
at times when redemption is suspended pursuant to the conditions set forth in
Section 4(c) hereof. The Fund shall also have the right to suspend the sale of
the Shares if trading on the New York Stock Exchange or other exchange shall
have been suspended, if a banking moratorium shall have been declared by federal
or state authorities, or if there shall have been some other extraordinary
event, which, in the judgment of the Fund, makes it impracticable to sell the
Shares. The Fund also reserves the right to suspend the sale of Shares at any
time, in the absolute discretion of its Board of Trustees.
(g) The Fund, or any agent of the Fund designated in writing by the
Fund, shall be promptly advised of all purchase orders for Shares received by
the Distributor. Any order may be rejected by the Fund; PROVIDED, HOWEVER, that
the Fund will not arbitrarily or without reasonable cause refuse to accept
orders for the purchase of Shares. The Distributor (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 Fund (or its agent).
4. REPURCHASE OR REDEMPTION OF SHARES.
(a) Any of the outstanding shares of any Portfolio may be tendered
for redemption at any time, and the Fund agrees to redeem the Shares so tendered
in accordance with the applicable provisions set forth in the Prospectus and the
Statement of Additional Information. The price to be paid to redeem the Shares
shall be equal to the net asset value calculated in accordance with the
provisions of Section 3(e) hereof. All payments by the Fund hereunder shall be
made in the manner set forth below.
The Fund, on behalf of the applicable Portfolio, shall pay the total
amount of the redemption price subsequent to its having received the notice of
redemption in proper form, all in accordance with applicable provisions of the
Prospectus and the Statement of Additional Information on or before the seventh
day after receipt of notice of redemption.
(b) The Distributor is authorized, as agent for the Fund, 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
3
<PAGE>
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 FUND.
(a) The Fund shall furnish to the Distributor copies of all
information (including, without limitation, sales literature and
advertisements), financial statements and other papers prepared (or caused by
the Fund to be prepared) for publication or distribution which refer in any way
to the Distributor, prior to the use thereof, and shall not use such material if
the Distributor reasonably objects in writing within five (5) business days (or
such other time as may be mutually agreed) after receipt thereof. The foregoing
sentence shall survive the termination of this Agreement. The Fund 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
Portfolios, and examined by independent accountants. The Fund shall, subject to
the provisions of Section 8 hereof, make available to the Distributor such
number of copies of the Prospectus and the Statement of Additional Information
as the Distributor shall reasonably request.
(b) The Fund shall take, from time to time, but subject to the
necessary approval of the Portfolios' 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
4
<PAGE>
then effective Prospectus or for additional information, (iii) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement, or the initiation of any proceedings for that purpose,
and (iv) of the happening of any event which makes untrue any material statement
made in the Registration Statement or the current Prospectus or which, in the
opinion of counsel for the Fund, requires the making of a change in the
Registration Statement or the current Prospectus in order to make the statements
therein not misleading. In case of the happening at any time of any event which
materially affects the Fund or its securities and which should be set forth in a
supplement to or an amendment of the then effective Prospectus in order to make
the statements therein not misleading, the Fund shall prepare and furnish to the
Distributor such amendment or amendments to the then effective Prospectus, as
will correct the Prospectus so that as corrected it will not contain, or such
supplement or supplements to the then effective Prospectus which, when read in
conjunction with the then effective Prospectus, will make the combined
information not contain any untrue statement of a material fact or any omission
to state any material fact necessary in order to make the statements in the then
effective Prospectus not misleading. The Fund shall, if at any time the SEC
shall issue any stop order suspending the effectiveness of the Registration
Statement, make reasonable effort to obtain the prompt lifting of such order.
(e) Except as otherwise contemplated by Section 8(a) hereof, the Fund
shall, at the expense of the Distributor, furnish, in reasonable quantities upon
request of the Distributor, copies of Prospectuses, Statements of Additional
Information, Proxies and annual and interim reports of the Fund, in respect of
the Portfolios.
6. DUTIES OF THE DISTRIBUTOR.
(a) The Distributor shall devote reasonable time and effort to effect
sales of the Shares (but only in states and other jurisdictions in which it may
legally do so), but shall not be obligated to sell any specific number of
Shares. The services of the Distributor hereunder are not to be deemed
exclusive and nothing herein contained shall prevent the Distributor from
entering into distribution or dealer arrangements with other investment
companies so long as the performance of its obligations hereunder are not
impaired thereby.
(b) Neither the Distributor nor any Selected Dealer nor any other
person is authorized by the Fund to give any information or to make any
representations, other than those contained in the Registration Statement or
related Prospectus and Statement of Additional Information and any sales
literature specifically approved by the Fund.
(c) The Distributor shall cooperate with the Fund in effecting the
qualifications contemplated by Section 5(c) hereof.
(d) The Distributor shall furnish to the Fund copies of all
information including, without limitation, sales literature and advertisements,
financial statements and other papers prepared (or caused by the Distributor to
be prepared) for the publication or distribution, which refer in any way to the
Fund, prior to the use thereof, and shall not use such material if the Fund
reasonably objects in writing within (5) business days (or such
5
<PAGE>
other time as may be mutually agreed) after receipt thereof. The foregoing
sentence shall survive the termination of this Agreement.
(e) In selling the Shares, the Distributor shall use its best efforts
in all respects to duly conform with the requirements of all applicable federal,
state and foreign laws. In connection therewith, the Distributor shall use its
best efforts in granting any Distributor's Consent under Section 7(b) hereof, to
make certain that such Foreign Offer or Sale does not violate applicable law or
otherwise cause the Fund to have any liability with respect to such Foreign
Offer or Sale.
7. SELECTED DEALER AGREEMENTS.
(a) The Distributor shall have the right to enter into selected
dealer agreements ("Selected Dealer Agreements") with securities dealers of its
choice (the "Selected Dealers") for the sale of Shares. In connection with such
sales by Selected Dealers, the Selected Dealer Agreement shall provide that the
portion of the Sales Charge which may be allocated to Selected Dealers shall be
limited to all or a portion of the Sales Charge as stated in the Fund's then
current Prospectus. In making agreements with Selected Dealers, the Distributor
shall act only as principal and not as agent for the Fund. Shares sold to
Selected Dealers shall be for resale by such dealers only at the public offering
price(s) set forth in the Prospectus and the Statement of Additional
Information.
(b) The Distributor shall offer and sell Shares only to such Selected
Dealers as are (i) members in good standing of the National Association of
Securities Dealers (the "NASD"), or (ii) exempt from membership in the NASD. In
any Selected Dealer Agreement, the Distributor shall require the Selected Dealer
to obtain the written consent of the Distributor (the "Distributor's Consent")
prior to such Selected Dealer's making, causing to be made or otherwise
participating, directly or indirectly, in the making of any offer or sale of any
of the Fund's shares to any individual, corporation, partnership, trust, joint
venture, or other person or entity located outside of the United States of
America (a "Foreign Offer or Sale"). Such Selected Dealer Agreements shall also
provide that any Foreign Offer or Sale shall be made only upon the terms and in
accordance with the conditions set forth in the Distributor's Consent.
(c) The Distributor shall adopt and follow procedures, as approved by
the Fund, for the confirmation of sales and Shares to investors and Selected
Dealers, the collection of amounts payable by investors and Selected Dealers on
such sales, and the cancellation of unsettled transactions, as may be necessary
to comply with the requirements of the National Association of Securities
Dealers, as such requirements may from time to time exist.
8. COMPENSATION AND EXPENSES.
(a) Pursuant to its 12b-1 Distribution Plan, and in order to further
enhance the distribution of the shares, the Fund shall, on a monthly basis, pay
the Distributor a 12b-1 fee of 0.25% of the aggregate average daily net assets
of the American Tiger Top 20
6
<PAGE>
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 related services for the Fund. 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 Fund and their transactions with the
Fund, expenses for advertising, the preparation and distribution of sales
literature and other promotional activities on behalf of the Fund. The Fund
shall pay the cost of preparing, printing and distributing the Prospectuses and
Statements of Additional Information to existing investors, 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 Fund and the Distributor in accordance with Section 5(c) hereof
and the costs and expenses payable to each such state or other jurisdiction for
continuing qualifications therein. The Distributor and/or Investment Advisor
shall pay for the printing and distribution of Prospectuses and Statements of
Additional Information to prospective investors.
The Fund is not obligated to pay any distribution expenses in excess
of the distribution fees with respect to any one Portfolio, pursuant to this
Section 8.(a). In addition, any expenses of distribution of the Fund's shares
accrued by the Distributor in any one fiscal year of the Fund may not be paid
from distribution fees received from the Fund 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.
(b) The Fund shall not bear the expense of the registration or
qualification of the Distributor as a dealer or a broker under federal, state or
other applicable law or the expenses of continuing such registration or
qualification.
9. INDEMNIFICATION.
(a) The Fund agrees with the Distributor, for the benefit of the
Distributor and each person, if any, who controls the Distributor within the
meaning of Section 15 of the Securities Act and each and all and any of them, to
indemnify and hold harmless the Distributor and any such controlling person from
and against any and all losses, claims, damages or liabilities, joint or several
(including reasonable legal fees and expenses) to which they or any of them may
become subject under the Securities Act or under any other statute, at common
law or otherwise, and to reimburse the Distributor and such controlling persons,
if any, for any legal or other expenses (including the cost of any investigation
and preparation) reasonably incurred by them in connection with any litigation,
whether or not
7
<PAGE>
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 Fund on account of its
agreement contained in this paragraph, notify the Fund in writing of the
commencement thereof. The omission of the Distributor 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 Distributor 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
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 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 Distributor 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 Distributor or any such controlling person, and shall survive any delivery
of shares of the Fund. The Fund 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 Fund.
(b) Anything herein to the contrary notwithstanding, the agreement in
subparagraph (a) of this Section, insofar as it constitutes a basis of
reimbursement by the 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
8
<PAGE>
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.
(c) The Distributor 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
Distributor for inclusion in any Registration Statement or any Prospectus, or
any amendment thereof or supplement thereto or otherwise for distribution or
publication. The Distributor shall not be liable for amounts paid in settlement
of any such litigation if such settlement was effected without its consent. The
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 Distributor or account of its agreement contained in this
paragraph, notify the Distributor in writing of the commencement thereof. The
omission of the Fund 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 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 Distributor 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 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 Fund and shall survive any delivery of
shares of the Fund. The Fund agrees to notify the Distributor 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.
(d) Notwithstanding any provision contained in this Agreement, no
party hereto and no person or persons in control of any party hereto shall be
protected against any liability to the Fund or its security holders to which
they would otherwise be subject by
9
<PAGE>
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 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 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 Fund. This
Agreement may be terminated by the Fund at any time or by the Distributor on
sixty (60) days' written notice to the Fund. 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 Chatfield Dean & Co., 7935 East
Prentice Avenue, Suite 200, Greenwood Village, Colorado 80111 or to the Fund at
One East Liberty, Third Floor, Reno, Nevada 89501.
10
<PAGE>
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 AMERICAN TIGER FUNDS
By:
- ------------------------ --------------------------------
Barry Sander, Trustee
By:
--------------------------------
Joel Rossman, Trustee
By:
--------------------------------
Jacques Delacroix, Trustee
By:
--------------------------------
Arjen Kuyper, Trustee
By:
--------------------------------
Louis G. Navellier, Trustee
ATTEST: CHATFIELD DEAN & CO.
By:
- ------------------------ --------------------------------
11
<PAGE>
EXHIBIT 99.6.1
SELECTED DEALER AGREEMENT
Chatfield Dean & Co.
7935 East Prentice Avenue, Suite 200
Greenwood Village, Colorado 80111
, 1998
-----------------
Dear Sir/Madam:
We invite you, upon the following terms and conditions, to participate as
principal in the distribution of the shares of any of the mutual funds including
The American Tiger Funds, of which we are, or may become, Distributor
(hereinafter collectively referred to as the "Funds" and each individually as a
"Fund"):
1. You are to offer and sell such shares only at the public offering
prices which shall be then currently in effect in accordance with the terms of
the then current prospectus of the Fund. You agree to act only as principal in
such transactions and shall not have authority to act as transfer agent for the
Fund, for us, or for any other dealer in any respect. All orders are subject to
acceptance or rejection by us or the Fund (or its agent) (in such party's sole
discretion) and become effective only upon confirmation by us or the Fund (or
its agent).
2. On each purchase of shares by you from us, the total sales charges, if
any, to selected dealers shall be as stated in the Fund's then current
prospectus.
Such sales charges, if any, to selected dealers are subject to reductions
under circumstances as described in the Fund's then current prospectus.
There is no sales charge to selected dealers on the reinvestment of
dividends or capital gains distributions or upon any merger or consolidation of
any other entity with the Fund or the acquisition of the assets or shares of any
entity by the Fund.
3. As a selected dealer, you are hereby authorized (i) to place orders
directly with the Fund for shares to be resold by us to you, at all times,
subject to (a) the applicable terms and conditions governing the placement of
orders by us set forth in the Distribution Agreement between us and the Fund,
and (b) applicable compensation provisions set forth in the Fund's then current
prospectus, and (c) instructions issued by us from time to time, and (ii) to
tender shares directly to the Fund or its transfer agent for redemption subject
to (a) the applicable terms and conditions set forth in the Distribution
Agreement, (b) the provisions of the Fund's then current prospectus, or (c)
instructions issued by us from time to time. You appoint the transfer agent for
the Fund as your agent to execute customers' purchases of fund shares sold to
you by us in accordance with the terms and provisions of any account, program,
plan or service established or used by your customers and to confirm each such
purchase to your customers on your behalf, and you guarantee the legal capacity
of your customers so purchasing such shares and any co-owners of such shares.
<PAGE>
4. Repurchases of shares will be made at the net asset value of such
shares in accordance with the then current prospectus of the Fund.
5. You represent that you are either (i) a member in good standing of the
National Association of Securities Dealers, Inc. (the "NASD") or (ii) that you
are exempt from membership in the NASD. If you are a member of the NASD, any
termination of such membership in good standing shall terminate this Agreement.
6. Regardless of whether or not you are a member of the NASD this
Agreement is in all respects subject to, and you agree to abide by all the rules
and regulations of the NASD concerning the distribution of securities of
open-end investment companies, including, without limitation, Section 26 of
Article III of the Rules of Fair Practice of the NASD which shall control any
provisions to the contrary in this Agreement.
7. You agree:
(a) To purchase shares only from us or from your customers.
(b) To purchase shares from us only for the purpose of covering
purchase orders already received or for your own bona fide
investment.
(c) That you will not purchase any shares from your customers at
prices lower than the redemption or repurchase prices then quoted
by the Fund. You shall, however, be permitted to sell shares for
the account of their record owners to the Fund at the repurchase
prices currently established for such shares and may charge the
owner a fair commission for handling the transaction.
(d) That you will not withhold placing customers' orders for shares
so as to profit yourself as a result of such withholding.
(e) You will not make, cause to be made, or otherwise participate,
directly or indirectly, in the making of, any offer or sale (a
"Foreign Offer or Sale") of any of the Fund's shares to any
individual, corporation, partnership, trust, joint venture or
other person or entity located outside of the geographical
boundaries of the United States of America without first
obtaining our written consent. Any Foreign Offer or Sale will be
made only upon the terms and in accordance with the conditions
set forth in such consent.
(f) Except as provided by Section 12 hereof, all expenses which you
incur in connection with your activities under this Agreement
will be borne by you.
<PAGE>
8. We shall not accept from you any conditional orders for shares.
Confirmations of purchases of shares (or the delivery of share certificates, if
any) shall be made by the Fund only against receipt of the purchase price. If
payment for the purchase is not received within the time customary for such
payments, the sale may be cancelled forthwith without any responsibility or
liability on our part or on the part of the Fund (in which case you will be
responsible for any loss, including loss or profit, suffered by the Fund
resulting from your failure to make payment as aforesaid), or, at our option, we
may sell the shares so ordered back to the Fund (in which case we may hold you
responsible for any loss, including loss or profit suffered by us resulting from
your failure to make payment as aforesaid).
9. You will not offer or sell any of the shares except under
circumstances that will result in compliance with the applicable federal, state
and foreign securities and other applicable laws and in connection with sales
and offers to sell shares you will furnish to each person to whom any such sale
or offer is made a copy of the Fund's then current prospectus. We shall be
under no liability to you except for lack of good faith and for obligations
expressly assumed by us herein. Nothing herein contained however, shall be
deemed to be a condition, stipulation or provision binding any persons acquiring
any security to waive compliance with any provision of the Securities Act of
1933, or of the Rules and Regulations of the Securities and Exchange Commission,
or to relieve the parties hereto from any liability arising under the Securities
Act of 1933.
10. No person is authorized to make any representations concerning shares
of the Fund except those contained in the then current prospectus and printed
information issued by the Fund or by us as information supplemental to such
prospectus. We shall supply you with prospectuses and reasonable quantities of
supplemental sales literature, sales bulletins, and additional information as
same are issued. You agree not to use other advertising or sales material
relating to the Fund unless approved in writing by us in advance of such use.
Any printed information furnished by us other than the then current prospectus
for the Fund, periodic reports and proxy solicitation materials are our sole
responsibility and not the responsibility of the Fund, and you agree that the
Fund shall have no liability or responsibility to you in these respects unless
expressly assumed thereby in connection therewith.
11. Either party to this Agreement may cancel this Agreement by giving
written notice to the other. Such notice shall be deemed to have been given on
the date on which it was either delivered personally to the other party, or was
mailed postpaid or delivered to a telegraph office for transmission to the other
party at his or its address as shown below. If you are a member of the NASD,
upon your ceasing to be a member in good standing of the NASD, this Agreement
shall automatically terminate. This Agreement and any schedule of distribution
assistance payments adopted pursuant to paragraph 12 hereof may be amended by us
at any time and your placing of an order after the effective date of any such
amendment shall constitute your acceptance thereof.
<PAGE>
12. As compensation for your marketing and customer services, we shall pay
you 75% of the Sales Charge (if any, paid by each investor you obtain for the
Fund) and 75% of the 0.25% annual 12b-1 fee, payable pro rata monthly, (as set
forth in the Distribution Agreement between The American Tiger Funds and
Chatfield Dean & Co.) (i.e., 75% of 0.25% of the value of the assets of each
investor you obtain for the Fund).
13. Our obligations to you under this Agreement are subject to all the
provisions of any distributorship agreement entered into between us and the
Fund, a copy of which you hereby acknowledge receiving. You understand and
agree that in performing your services covered by this Agreement you are acting
as principal, and that we are in no way responsible for any of your acts, or the
acts of your employees or representatives, and that neither you nor your
employees, representatives, or agents is our agent, partner, or employee, or the
agent or employee of the Fund.
<PAGE>
14. This Agreement shall be construed in accordance with the laws of the
State of Nevada and shall be binding upon both parties hereto when signed by us
and accepted by you in the space provided below. In the event of any
disagreement or litigation arising out of or concerning this Agreement the
parties agree that such litigation or arbitration (if both parties agree to
arbitration) shall only be brought and decided in a court (or arbitration, if
mutually agreed upon) located in Reno, Nevada. The prevailing party to such
action shall be entitled, in addition to any other relief, to its reasonable
attorneys' fees, costs, and expenses.
CHATFIELD DEAN & CO.
By:____________________________
(Authorized Signature)
Firm Name
------------------------------------------------------------
Address
--------------------------------------------------------------
City State Zip Code
------------------------ ----- ------------------
ACCEPTED BY (signature)
---------------------------------------------
Name (print) Title
------------------------ --------------------------
Date 19 Telephone #
---------- --------- ------------------------------
Please return two signed copies of this Agreement
(one of which will be signed by us and thereafter
returned to you) in the
accompanying return envelope to:
Chatfield Dean & Co.
7935 East Prentice Avenue, Suite 200
Greenwood Village, Colorado 80111
<PAGE>
AGREEMENT
FOR
FUND ACCOUNTING SERVICES,
TRANSFER AGENCY SERVICES
AND
CUSTODY SERVICES
AGREEMENT made as of August 31, 1998, by and between those investment
companies listed on Exhibit 1, as may be amended from time to time, having their
principal office and place of business at One East Liberty, Third Floor, Reno,
Nevada 89501 (the "Investment Company"), on behalf of the portfolios
(individually referred to herein as a "Fund" and collectively as "Funds") of the
Investment Company, and RUSHMORE TRUST AND SAVINGS, FSB, a Federal savings bank,
having its principal office and place of business at 4922 Fairmont Avenue,
Bethesda, MD 20814, on behalf of itself and its affiliates (the "Company").
WHEREAS, the Investment Company is registered as an open-end management
investment company under the Investment Company Act of 1940, as amended (the
"1940 Act"), with authorized shares of capital stock or beneficial interest
("Shares");
WHEREAS, the Investment Company desires to retain the Company as fund
accountant to provide Fund Accounting Services (as herein defined) including
certain pricing, accounting and recordkeeping services for each of the Funds,
including any classes of shares issued by any Fund ("Classes"), and the Company
desires to accept such appointment;
WHEREAS, the Investment Company desires to appoint the Company as its
transfer agent and dividend disbursing agent to provide it with Transfer Agency
Services (as herein defined) and agent in connection with certain other
activities, and the Company desires to accept such appointment; and
WHEREAS, the Investment Company desires to appoint the Company as
depository of the Investment Company's assets and to provide certain other
Custodial Services (as herein defined), and the Company desires to accept such
appointment.
NOW THEREFORE, in consideration of the premises and mutual covenants herein
contained, and intending to be legally bound hereby, the parties hereto agree as
follows:
SECTION ONE: FUND ACCOUNTING SERVICES.
ARTICLE 1. APPOINTMENT.
The Investment Company hereby appoints the Company to provide certain
pricing and accounting services to the Funds, and/or the Classes, for the period
and on the terms set forth in this Agreement. The Company accepts such
appointment and agrees to furnish the services subject to the terms and
conditions set forth in this Agreement.
<PAGE>
ARTICLE 2. THE DUTIES OF THE COMPANY.
Subject to the supervision and control of the Investment Company's Board of
Trustees or Directors ("Board"), the Company will assist the Investment Company
with regard to fund accounting for the Investment Company, and/or the Funds,
and/or the Classes, and in connection therewith undertakes to perform the
following specific services:
A. Value the assets of the Funds using: primarily, market quotations,
including the use of matrix pricing, supplied by the independent pricing
services selected by the Company in consultation with the adviser, or sources
selected by the adviser, and reviewed by the Board; secondarily, if a designated
pricing service does not provide a price for a security which the Company
believes should be available by market quotation, the Company may obtain a price
by calling brokers designated by the investment adviser of the fund holding the
security, or if the adviser does not supply the names of such brokers, the
Company will attempt on its own to find brokers to price those securities;
thirdly, for securities for which no market price is available, the Pricing
Committee of the Board will determine a fair value in good faith. Consistent
with Rule 2a-4 of the 1940 Act, estimates may be used where necessary or
appropriate. The Company's obligations with regard to the prices received from
outside pricing services and designated brokers or other outside sources, is to
exercise reasonable care in the supervision of the pricing agent. The Company is
not the guarantor of the securities prices received from such agents and the
Company is not liable to the Fund for potential errors in valuing a Fund's
assets or calculating the net asset value per share of such Fund or Class when
the calculations are based upon such prices. All of the above sources of prices
used as described are deemed by the Company to be authorized sources of security
prices. The Company provides daily to the adviser the securities prices used in
calculating the net asset value of the fund, for its use in preparing exception
reports for those prices on which the adviser has comment. Further, upon receipt
of the exception reports generated by the adviser, the Company diligently
pursues communication regarding exception reports with the designated pricing
agents;
B. Determine the net asset value per share of each Fund and/or Class, at
the time and in the manner from time to time determined by the Board and as set
forth in the Prospectus and Statement of Additional Information ("Prospectus")
of each Fund;
C. Calculate the net income of each of the Funds, if any;
D. Calculate realized capital gains or losses of each of the Funds
resulting from sale or disposition of assets, if any;
E. Maintain the general ledger and other accounts, books and financial
records of the Investment Company, including for each Fund, and/or Class, as
required under Section 31(a) of the 1940 Act and the Rules thereunder in
connection with the services provided by the Company;
F. Preserve for the periods prescribed by Rule 31a-2 under the 1940 Act
the records to be maintained by Rule 31a-1 under the 1940 Act in connection with
the services provided by the
2
<PAGE>
Company. The Company further agrees that all such records it maintains for the
Investment Company are the property of the Investment Company and further agrees
to surrender promptly to the Investment Company such records in the form such
records are maintained upon the Investment Company's request; and
G. At the request of the Investment Company, prepare various reports or
other financial documents in accordance with generally accepted accounting
principles as required by federal, state and other applicable laws and
regulations required in the ordinary course of business of the Investment
Company.
The foregoing, along with any additional services that the Company shall
agree in writing to perform for the Investment Company under this Section One,
shall be referred to as "Fund Accounting Services."
The Company, in its sole discretion, may from time to time subcontract to,
employ or associate with itself such person or persons as the Company may
believe to be particularly suited to assist it in performing Fund Accounting
Services. Such person or persons may be affiliates of the Company, third-party
service providers, or they may be officers and employees who are employed by
both the Company and the Investment Company; provided, however, that the Company
shall be as fully responsible to each Fund for the acts and omissions of any
such subcontractor as it is for its own acts and omissions. The compensation of
such person or persons shall be paid by the Company and no obligation shall be
incurred on behalf of the Investment Company, the Funds, or the Classes in such
respect.
SECTION TWO: TRANSFER AGENCY SERVICES.
ARTICLE 3. TERMS OF APPOINTMENT.
Subject to the terms and conditions set forth in this Agreement, the
Investment Company hereby appoints the Company to act as, and the Company agrees
to act as, transfer agent and dividend disbursing agent for each Fund's Shares,
and agent in connection with any accumulation, open-account or similar plans
provided to the shareholders of any Fund ("Shareholder(s)"), including without
limitation any periodic investment plan or periodic withdrawal program.
ARTICLE 4. DUTIES OF THE COMPANY.
The Company shall perform the following services in accordance with Proper
Instructions as may be provided from time to time by the Investment Company as
to any Fund:
A. Purchases
(1) The Company shall receive orders and payment for the purchase of
shares and promptly deliver payment and appropriate documentation therefore
to the custodian of
3
<PAGE>
the relevant Fund. The Company shall notify the Fund and the custodian on a
daily basis of the total amount of orders and payments so delivered.
(2) Pursuant to purchase orders and in accordance with the Fund's
current Prospectus, the Company shall compute and issue the appropriate
number of Shares of each Fund and/or Class and hold such Shares in the
appropriate Shareholder accounts.
(3) In the event that any check or other order for the purchase of
Shares of the Fund and/or Class is returned unpaid for any reason, the
Company shall debit the Share account of the Shareholder by the number of
Shares that had been credited to its account upon receipt of the check or
other order, promptly mail a debit advice to the Shareholder, and notify
the Fund and/or Class of its action. In the event that the amount paid for
such Shares exceeds proceeds of the redemption of such Shares plus the
amount of any dividends paid with respect to such Shares, the Fund and/the
Class or its distributor will reimburse the Company on the amount of such
excess.
B. Distribution
(1) Upon notification by the Funds of the declaration of any
distribution to Shareholders, the Company shall act as Dividend Disbursing
Agent for the Funds in accordance with the provisions of its governing
document and the then-current Prospectus of the Fund. The Company shall
prepare and mail or credit income, capital gain, or any other payments to
Shareholders. As the Dividend Disbursing Agent, the Company shall, on or
before the payment date of any such distribution, notify the custodian of
the estimated amount required to pay any portion of said distribution which
is payable in cash and request the custodian to make available sufficient
funds for the cash amount to be paid out. The Company shall reconcile the
amounts so requested and the amounts actually received with the custodian
on a daily basis. If a Shareholder is entitled to receive additional Shares
by virtue of any such distribution or dividend, appropriate credits shall
be made to the Shareholder's account; and
(2) The Company shall maintain records of account for each Fund and
Class and advise the Investment Company, each Fund and Class and its
Shareholders as to the foregoing.
C. Redemptions and Transfers
(1) The Company shall receive redemption requests and redemption
directions and, if such redemption requests comply with the procedures as
may be described in the Fund Prospectus or set forth in Proper
Instructions, deliver the appropriate instructions therefor to the
custodian. The Company shall notify the Funds on a daily basis of the total
amount of redemption requests processed and monies paid to the Company by
the custodian for redemptions.
4
<PAGE>
(2) Pursuant to redemption requests and in accordance with the Fund's
current Prospectus, the Company shall compute and issue the appropriate
number of Shares of each Fund and/or Class to be redeemed and deduct such
Shares in the appropriate Shareholder accounts.
(3) At the appropriate time upon receiving redemption proceeds from
the custodian with respect to any redemption, the Company shall pay or
cause to be paid the redemption proceeds in the manner instructed by the
redeeming Shareholders, pursuant to procedures described in the
then-current Prospectus of the Fund.
(4) The Company shall effect transfers of Shares by the registered
owners thereof.
(5) The Company shall identify and process abandoned accounts and
uncashed checks for state escheat requirements on an annual basis and
report such actions to the Fund.
D. Recordkeeping
(1) The Company shall record the issuance of Shares of each Fund,
and/or Class, and maintain pursuant to applicable rules of the Securities
and Exchange Commission ("SEC") a record of the total number of Shares of
the Fund and/or Class which are authorized, based upon data provided to it
by the Fund, and issued and outstanding. The Company shall also provide the
Fund on a regular basis or upon reasonable request with the total number of
Shares which are authorized and issued and outstanding, but shall have no
obligation when recording the issuance of Shares, except as otherwise set
forth herein, to monitor the issuance of such Shares or to take cognizance
of any laws relating to the issue or sale of such Shares, which functions
shall be the sole responsibility of the Funds.
(2) The Company shall establish and maintain records pursuant to
applicable rules of the SEC relating to the services to be performed
hereunder in the form and manner as agreed to by the Investment Company or
the Fund to include a record for each Shareholder's account of the
following:
(a) Name, address and tax identification number (and whether such
number has been certified);
(b) Number of Shares held;
(c) Historical information regarding the account, including
dividends paid and date and price for all transactions;
(d) Any stop or restraining order placed against the account;
5
<PAGE>
(e) Information with respect to withholding in the case of a
foreign account or an account for which withholding is required by the
Internal Revenue Code;
(f) Any dividend reinvestment order, plan application, dividend
address and correspondence relating to the current maintenance of the
account;
(g) Any information required in order for the Company to perform
the calculations contemplated or required by this Agreement.
(3) The Company shall preserve any such records required to be
maintained pursuant to the rules of the SEC for the periods prescribed in
said rules as specifically noted below. Such record retention shall be at
the expense of the Company, and such records may be inspected by the Fund
at reasonable times. The Company may, at its option at any time, and shall
forthwith upon the Fund's demand, turn over to the Fund and cease to retain
in the Company's files, records and documents created and maintained by the
Company pursuant to this Agreement, which are no longer needed by the
Company in performance of its services or for its protection. If not so
turned over to the Fund, such records and documents will be retained by the
Company for six years from the year of creation, during the first two of
which such documents will be in readily accessible form. At the end of the
six year period, such records and documents will either be turned over to
the Fund or destroyed in accordance with Proper Instructions.
E. Confirmations/Reports
(1) The Company shall furnish to the Fund periodically the following
information:
(a) A copy of the transaction register;
(b) Dividend and reinvestment blotters;
(c) The total number of Shares issued and outstanding in each
state for "blue sky" purposes as determined according to Proper
Instructions delivered from time to time by the Fund to the Company;
(d) Shareholder lists and statistical information;
(e) Payments to third parties relating to distribution
agreements, allocations of sales loads, redemption fees, or other
transaction- or sales-related payments;
(f) Such other information as may be agreed upon from time to
time.
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(2) The Company shall prepare in the appropriate form, file with the
Internal Revenue Service and appropriate state agencies, and, if required,
mail to Shareholders, such notices for reporting dividends and
distributions paid as are required to be so filed and mailed and shall
withhold such sums as are required to be withheld under applicable federal
and state income tax laws, rules and regulations.
(3) In addition to and not in lieu of the services set forth above,
the Company shall:
(a) Perform all of the customary services of a transfer agent,
dividend disbursing agent and, as relevant, agent in connection with
accumulation, open-account or similar plans (including without
limitation any periodic investment plan or periodic withdrawal
program), including but not limited to: maintaining all Shareholder
accounts, mailing Shareholder reports and Prospectuses to current
Shareholders, withholding taxes on accounts subject to back-up or
other withholding (including non-resident alien accounts), preparing
and filing reports on U.S. Treasury Department Form 1099 and other
appropriate forms required with respect to dividends and distributions
by federal authorities for all Shareholders, preparing and mailing
confirmation forms and statements of account to Shareholders for all
purchases and redemptions of Shares and other conformable transactions
in Shareholder accounts, preparing and mailing activity statements for
Shareholders, and providing Shareholder account information; and
(b) Provide a system which will enable the Fund to monitor the
total number of Shares of each Fund (and/or Class) sold in each state
("blue sky reporting"). The Fund shall by Proper Instructions (i)
identify to the Company those transactions and assets to be treated as
exempt from the blue sky reporting for each state and (ii) verify the
classification of transactions for each state on the system prior to
activation and thereafter monitor the daily activity for each state.
The responsibility of the Company for each Fund's (and/or Class's)
state blue sky registration status is limited solely to the recording
of the initial classification of transactions or accounts with regard
to blue sky compliance and the reporting of such transactions and
accounts to the Fund as provided above.
F. Other Duties
The Company shall answer correspondence from Shareholders relating to
their Share accounts and such other correspondence as may from time to time
be addressed to the Company.
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The foregoing, along with any additional services that the Company shall
agree in writing to perform for the Investment Company under this Section Two,
shall hereafter be referred to as "Transfer Agency Services."
ARTICLE 5. DUTIES OF THE INVESTMENT COMPANY.
A. Compliance
The Investment Company or Fund assume full responsibility for the
preparation, contents and distribution of their own and/or their classes'
Prospectus and for complying with all applicable requirements of the Securities
Act of 1933, as amended (the "1933 Act"), the 1940 Act and any laws, rules and
regulations of government authorities having jurisdiction.
B. Distributions
The Fund shall promptly inform the Company of the declaration of any
dividend or distribution on account of any Fund's shares.
SECTION THREE: CUSTODY SERVICES.
ARTICLE 6. APPOINTMENT.
The Fund hereby employs the Company (referred to as the "Custodian" in this
capacity) to serve as depository of its assets pursuant to Rule 17f-2 of the
1940 Act . The Fund agrees to deliver to the Custodian substantially all
securities and cash owned by it from time to time, and substantially all income,
principal or capital distributions or other payments received by it with respect
to such securities, and the cash consideration received for the issuance and
sale of Shares of the Funds from time to time. The Custodian will not be
responsible for any property of the Funds not delivered to the Custodian. The
services set forth in this Section Three along with other services that the
Custodian agrees in writing to perform for the Investment Company under this
Section Three shall be referred to as "Custodial Services."
ARTICLE 7. THE COMPANY AND ITS DUTIES.
A. Holding Securities
The Custodian will hold, earmark and physically segregate for the account
of the Funds all non-cash property, including all securities owned by the Funds,
other than securities maintained pursuant to Section J hereof in a clearing
agency which acts as a securities depository or in an authorized book-entry
system authorized by the U.S. Department of the Treasury, collectively referred
to herein as a "Securities System."
B. Delivery of Securities
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The Custodian will deliver securities held by the Custodian or in a
Securities System account only upon receipt of proper instructions, which may be
continuing instructions, and only in the following cases:
1. Upon sale of such securities for the account of a Fund and receipt of
payment therefor;
2. Upon receipt of payment in connection with any repurchase agreement
related to such securities entered into by a Fund;
3. In the case of a sale effected through a Securities System, in
accordance with the provisions of Section J hereof;
4. To the depository agent in connection with tenders or other similar
offers for securities of a Fund;
5. To the issuer thereof, or its agent, when such securities are called,
redeemed, retired or otherwise become payable; provided that, in any such case,
the cash or other consideration is to be delivered to the Custodian;
6. To the issuer thereof, or its agent, for registration or
re-registration pursuant to the provisions of Section C hereof; or for exchange
for a different number of certificates or other evidence representing the same
aggregate face amount or number of units; provided that, in any such case, the
new securities are to be delivered to the Custodian;
7. To the broker selling such securities for examination in accordance
with the "street delivery" custom; provided that the Custodian will maintain
procedures to ensure prompt return to the Custodian by the broker in the event
the broker elects not to accept such securities;
8. For exchange or conversion pursuant to any plan of merger,
consolidation, recapitalization, reorganization or readjustment of the
securities of the issuer or pursuant to provisions for conversion contained in
such securities, or pursuant to any deposit agreement; provided that, in any
such case, the new securities and cash, if any, are to be delivered to the
Custodian;
9. In the case of warrants, rights or similar securities, the surrender
thereof in the exercise of such warrants, rights or similar securities or the
surrender of interim receipts or temporary securities for definitive securities;
provided that, in any such case, the new securities and cash, if any, are to be
delivered to the Custodian;
10. For delivery in connection with any loans of securities made by a
Fund, but only against receipt of adequate collateral, as agreed upon from time
to time by the Custodian and a Fund, which may be in the form of cash or
obligations issued by the United States government, its agencies or
instrumentalities;
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11. For delivery as security in connection with any borrowing by a Fund
requiring a pledge of assets by the Fund against receipt of amounts borrowed;
12. Upon receipt of instructions from the transfer agent for a Fund for
delivery to the Transfer Agent or to holders of Shares in connection with
distributions in kind in satisfaction of requests by holders of Shares for
repurchase or redemption; and
13. For any other proper corporate purposes, but only upon receipt of, in
addition to Proper Instructions, a certified copy of a resolution of the Board
signed by an officer of the Fund and certified by the Secretary or an Assistant
Secretary, specifying the securities to be delivered, setting forth the purpose
for which such delivery is to be made, declaring such purposes to be proper
corporate purposes, and naming the persons to whom delivery of such securities
will be made.
C. Registration of Securities
Securities held by the Custodian (other than bearer securities) will be
registered in the name of the Fund, or in the name of any nominee of the Fund,
the Custodian or any Securities System, or in the name or nominee name of any
agent or sub-custodian appointed pursuant to Section I hereof, provided that the
Custodian will maintain a mechanism for identifying all securities belonging to
the Fund, wherever held or registered. All securities accepted by the Custodian
hereunder will be in "street name" or other good delivery form.
D. Bank Accounts
If requested by a Fund, the Custodian will open and maintain a separate
bank account or accounts in the name of the Fund, subject only to draft or order
by the Custodian acting pursuant to the terms of this Agreement, and will hold
in such account or accounts, subject to the provisions hereof, all cash received
by it from or for the account of the Fund, other than cash maintained by the
Fund in a bank account established and used in accordance with Rule 17f-3 under
the 1940 Act.
E. Payment for Shares
The Custodian will receive from the distributor of a Fund's Shares or from
the transfer agent and deposit into the Fund's custody account payments received
for Shares issued or sold from time to time by the Fund. The Custodian will
provide timely notification to the Fund and the Transfer Agent of any receipt by
it of cash payments for Shares.
F. Collection of Income and Other Payments
The Custodian will collect on a timely basis all income and other payments
with respect to securities held hereunder to which the Fund will be entitled by
law or pursuant to custom in the securities business, and will credit such
income and other payments, as collected, to the Fund's custody account.
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G. Payment of Fund Moneys
Upon receipt of proper instructions, which may be continuing instructions,
the Custodian will pay out moneys on behalf of the Fund in the following cases
only:
1. Upon the purchase of securities for the account of a Fund, but only (a)
against the delivery of such securities to the Custodian (or any bank, banking
firm or trust company doing business in the United States or abroad which is
qualified under the 1940 Act to act as a custodian and has been designated by
the Fund or by the Custodian as its agent for this purpose); (b) in the case of
a purchase effected through a Securities System, in accordance with the
conditions set forth in Section J hereof or; (c) in the case of repurchase
agreements entered into between the Fund and the Custodian, or another bank, (i)
against delivery of securities either in certificate form or through an entry
crediting the Custodian's account at the Federal Reserve Bank with such
securities and with an indication on the books of the Custodian that such
securities are held for the benefit of the Fund, and (ii) against delivery of
the receipt evidencing purchase by the Fund of securities owned by the Custodian
or other bank along with written evidence of the agreement by the Custodian or
other bank to repurchase such securities from the Fund;
2. In connection with conversion, exchange or surrender of securities
owned by the Fund as set forth in Section B hereof;
3. For the redemption or repurchase of Shares as set forth in Section H
hereof;
4. For the payment of any expense or liability incurred by the Fund,
including, but not limited to, the following payments for the account of the
Fund: interest, dividend disbursements, taxes, trade association dues, advisory,
administration, accounting, transfer agent and legal fees, and operating
expenses allocated to the Fund whether or not such expenses are to be in whole
or part capitalized or treated as deferred expenses;
5. For the payment of any dividend declared pursuant to the governing
documents of the Fund; and
6. For any other proper corporate purposes, but only upon receipt of, in
addition to proper instructions, a certified copy of a resolution of the Board
signed by an officer of the Fund and certified by its Secretary or an Assistant
Secretary, specifying the amount of such payment, setting forth the purpose for
which such payment is to be made, declaring such purpose to be a proper
corporate purpose, and naming the person or persons to whom such payment is to
be made.
H. Payments for Repurchase or Redemptions of Shares of the Fund
From such funds as may be available, the Custodian will, upon receipt of
instructions from the transfer agent, make funds available for payment to
holders of Shares who have
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delivered to the transfer agent a request for redemption or repurchase of their
Shares. In connection with the redemption or repurchase of Shares, the
Custodian is authorized upon receipt of instructions from the transfer agent to
wire funds to a member of the Federal Reserve designated by the redeeming
shareholders.
I. Appointment of Agents
The Custodian may at any time in its discretion appoint, but only in
accordance with an applicable vote by the Board, any bank or trust company,
which is qualified under the 1940 Act to act as a custodian, as its agent or
sub-custodian to carry out such of the provisions of this Section 3 as the
Custodian may from time to time direct; provided that the appointment of any
such agent or sub-custodian will not relieve the Custodian of any of its
responsibilities or liabilities hereunder. The Custodian is hereby authorized
to deposit, arrange for deposit and/or maintain foreign securities owned by the
Fund on behalf of the Funds with the Custodian or with the subcustodians or
agents of the Custodian's agent.
J. Deposit of Fund Assets in Securities Systems
The Custodian may deposit and/or maintain securities owned by the Funds in
a clearing agency registered with the Securities and Exchange Commission (the
"SEC") under Section 17A of the Securities Exchange Act of 1934, which acts as a
securities depository, or in the book-entry system authorized by the U.S.
Department of the Treasury and certain federal agencies (collectively referred
to herein as a "Securities System") in accordance with applicable Federal
Reserve Board and SEC rules and regulations, if any, and subject to the
following provisions:
1. The Custodian may keep securities of the Fund in a Securities System
provided that such securities are represented in an account ("Account") of the
Custodian in the Securities System which will not include any assets of the
Custodian other than assets held as a fiduciary, custodian, or otherwise for
customers;
2. The records of the Custodian with respect to securities of the Fund
which are maintained in a Securities System will identify by book-entry those
securities belonging to the Fund;
3. The Custodian will pay for securities purchased for the account of the
Fund upon (i) receipt of advice from the Securities System that such securities
have been transferred to the Account, and (ii) the making of an entry on the
records of the Custodian to reflect such payment and transfer for the account of
the Fund. The Custodian will transfer securities sold for the account of the
Fund upon (i) receipt of advice from the Securities System that payment for such
securities has been transferred to the Account, and (ii) the making of an entry
on the records of the Custodian to reflect such transfer and payment for the
account of the Fund. The Custodian will furnish the Fund a monthly account
statement showing confirmation of each transfer to or
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from the account of the Fund and each day's transactions in the Securities
System for the account of the Fund;
4. The book-entry system of the Federal Reserve System authorized by the
U.S. Department of the Treasury and the Depository Trust Company, a clearing
agency registered with the SEC, each are hereby specifically approved as a
Securities System, provided that any changes in these arrangements shall be
subject to the approval of the Board; and
5. The Custodian will be liable to a Fund for any direct loss or damage to
a Fund resulting from use of the Securities System to the extent caused by the
gross negligence, misfeasance or misconduct of the Custodian or any of its
agents or of any of its or their employees. In no event will the Custodian be
liable for any indirect, special, consequential or punitive damages.
K. Segregated Accounts for Futures Commission Merchants
The Custodian may enter into separate custodial agreements with various
Futures Commission Merchants ("FCMs") which the Fund uses (each an "FCM
agreement"), pursuant to which the Fund's margin deposits in certain
transactions involving futures contracts and options on futures contracts will
be held by the Custodian in accounts (each an "FCM account") subject to the
disposition by the FCM involved in such contracts in accordance with the
customer contract between FCM and the Fund ("FCM contract"), SEC rules governing
such segregated accounts, Commodities Futures Trading Commission ("CFTC") rules
and the rules of applicable securities or commodities exchanges. Such custodial
agreements will only be entered into upon receipt of written instructions from
the Fund which state that (a) an agreement between the FCM and the Fund has been
entered into, and (b) the Fund is in compliance with all the rules and
regulations of the CFTC. Transfers of initial margin will be made into an FCM
account only upon written instructions; transfers of premium and variation
margin may be made into an FCM account pursuant to oral instructions. Transfers
of funds from an FCM account to the FCM for which the Custodian holds such an
account may only occur upon certification by the FCM to the Custodian that
pursuant to the FCM agreement and the FCM contract, all conditions precedent to
its right to give the Custodian such instructions have been satisfied.
L. Ownership Certificates for Tax Purposes
The Custodian will execute ownership and other certificates and affidavits
for all federal and state tax purposes in connection with receipt of income or
other payments with respect to securities of the Fund held by it and in
connection with transfers of securities.
M. Proxies
The Custodian will cause to be promptly executed by the registered holder
of such securities, if the securities are registered otherwise than in the name
of the Fund or a nominee of the Fund, all proxies, without indication of the
manner in which such proxies are to be voted, and
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will promptly deliver to the Fund's investment advisor such proxies, all proxy
soliciting materials and all notices relating to such securities.
N. Communications Relating to Fund Securities
The Custodian will transmit promptly to the investment advisor all written
information (including, without limitation, pendency of calls and maturities of
securities and expirations of rights in connection therewith) received by the
Custodian from issuers of the securities being held for the Fund. With respect
to tender or exchange offers, the Custodian will transmit promptly to the
investment advisor all written information received by the Custodian from
issuers of the securities whose tender or exchange is sought and from the party
(or its agents) making the tender or exchange offer. If the investment advisor
desires to take action with respect to any tender offer, exchange offer or any
other similar transaction, the investment advisor will notify the Custodian at
least five business days prior to the date on which the Custodian is to take
such action.
O. Actions Permitted Without Express Authority
The Custodian may in its discretion, without express authority from the
Fund:
1. Make payments to itself or others for minor expenses of handling
securities or other similar items relating to its duties under this Agreement,
provided that all such payments will be accounted for to the Fund;
2. Surrender securities in temporary form for securities in definitive
form;
3. Endorse for collection, in the name of the Fund, checks, drafts and
other negotiable instruments; and
4. In general, attend to all non-discretionary details in connection with
the sale, exchange, substitution, purchase, transfer and other dealings with the
securities and property of the Fund, except as otherwise directed by the Fund or
the Board.
ARTICLE 8. DUTIES OF CUSTODIAN WITH RESPECT TO BOOKS OF ACCOUNT.
The Custodian will cooperate with and supply to the entity or entities
appointed to keep the books of account of the Fund such information in the
possession of the Custodian as is reasonably necessary to the maintenance of the
books of account of the Fund.
ARTICLE 9. RECORDS.
The Custodian will create and maintain all records relating to its
activities and obligations under this Agreement in such manner as will meet the
obligations of the Fund under the 1940 Act, including, without limitation,
Section 31 thereof and Rules 31a-1 and 31a-2 thereunder. All such records will
be property of the Fund and will at all times during the regular business hours
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of the Custodian be open for inspection by duly authorized officers, employees
or agents of the Fund and employees and agents of the SEC. The Custodian will,
upon request, provide the Fund with a tabulation of securities held by the
Custodian on behalf of the Fund, and will, upon request, and for such
compensation as will be agreed upon between the Fund and the Custodian, include
certificate numbers in such tabulations.
ARTICLE 10. OPINION OF FUND'S INDEPENDENT ACCOUNTANT.
The Custodian will provide reasonable assistance, as the Fund may from time
to time request, in obtaining from year to year favorable opinions from the
Fund's independent accountants with respect to its activities hereunder in
connection with the preparation of the Fund's Form N-1A, Form N-SAR or other
annual or semiannual reports to the SEC and with respect to any other
requirements of the SEC.
ARTICLE 11. SUCCESSOR CUSTODIAN.
If the Board appoints a successor custodian, the Custodian will, upon
termination, deliver to such successor custodian at the office of the Custodian,
duly endorsed and in the form for transfer, all securities and other assets of
the Fund then held by it hereunder. The Custodian will also deliver to such
successor custodian copies of such books and records relating to the Fund as the
Fund and Custodian may mutually agree.
In the event that no written order designating a successor custodian or
certified copy of a vote of the Board will have been delivered to the Custodian
on or before the date when such termination will become effective, then the
Custodian will have the right to deliver to a bank or trust company of its own
selection, doing business in the state in which either the principal place of
business of the Fund or the Custodian is located and having an aggregate
capital, surplus, and undivided profits of not less than $25,000,000, all
securities, funds and other properties held by the Custodian under this
Agreement. Thereafter, such bank or trust company will be the successor of the
Custodian under this Agreement. In the event that securities, funds and other
properties remain in the possession of the Custodian after the date of
termination hereof owing to failure of the Fund to procure the certified copy of
vote referred to, or of the Board to appoint a successor custodian, the
Custodian will be entitled to fair compensation for its services during such
period as the Custodian and retain possession of such securities, funds and
other properties and the provisions of this Agreement relating to the duties and
obligations of the Custodian will remain in full force and effect.
SECTION FOUR: COMPENSATION AND ALLOCATION OF EXPENSES.
A. The Investment Company and/or Funds will compensate the Company in
accordance with Exhibit 2 hereto.
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B. In addition to the compensation paid under Section A above, the
Investment Company and/or Funds agree to reimburse the Company for out-of-pocket
expenses or advances incurred by the Company for the items agreed upon between
the parties, as may be added to or amended from time to time. In addition, any
other expenses incurred by the Company at the request or with the consent of the
Investment Company and/or the Funds, will be reimbursed by the appropriate Fund.
C. The Investment Company and/or Funds, and not the Company, shall bear
the cost of: membership dues in the Investment Company Institute or any similar
organization; transfer agency expenses; investment advisory expenses; costs of
printing and mailing Prospectuses, reports and notices; administrative expenses;
interest on borrowed money; brokerage commissions; taxes and fees payable to
federal, state and other governmental agencies; fees of Trustees or Directors of
the Investment Company; independent auditors expenses; legal and audit expenses
billed to the Company for work performed related to the Investment Company, the
Funds, or the Classes; law firm expenses; organizational expenses; or other
expenses relating to the Investment Company or the Funds not specified in this
Agreement as being the responsibility of the Company.
D. The compensation and out-of-pocket expenses attributable to the Fund
shall be accrued by the Fund and shall be paid to the Company no less frequently
than monthly, and shall be paid daily upon request of the Company. The Company
will maintain detailed information about the compensation and out-of-pocket
expenses by Fund and Class.
E. Any schedule of compensation agreed to hereunder, as may be adjusted
from time to time, shall be dated and signed by a duly authorized officer of the
Investment Company and/or the Funds and a duly authorized officer of the
Company.
The fee for the period from the effective date of this Agreement with
respect to a Fund or a Class to the end of the initial month shall be prorated
according to the proportion that such period bears to the full month period.
Upon any termination of this Agreement before the end of any month, the fee for
such period shall be prorated according to the proportion which such period
bears to the full month period. For purposes of determining fees payable to the
Company, the value of the Fund's net assets shall be computed at the time and in
the manner specified in the Fund's Prospectus.
SECTION FIVE: GENERAL PROVISIONS.
ARTICLE 12. PROPER INSTRUCTIONS.
As used throughout this Agreement, a "Proper Instruction" means a writing
signed or initialed by one or more person or persons as the Board shall have
from time to time authorized. Each such writing shall set forth the specific
transaction or type of transaction involved. Oral instructions will be deemed
to be Proper Instructions if (a) the Company reasonably believes them to have
been given by a person previously authorized in Proper Instructions to give such
instructions with respect to the transaction involved, and (b) the Investment
Company, or the
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Fund, and the Company promptly cause such oral instructions to be confirmed in
writing. Proper Instructions may include communications effected directly
between electro-mechanical or electronic devices provided that the Investment
Company, or the Fund, and the Company are satisfied that such procedures afford
adequate safeguards for the Fund's assets. Proper Instructions may only be
amended in writing.
ARTICLE 13. EVIDENCE OF AUTHORITY.
The Company will be protected in acting upon any instruction, notice,
request, consent, certificate or other instrument or paper reasonably believed
by it to be genuine and to have been properly executed by or on behalf of a
Fund. The Company may receive and accept a certified copy of a vote of the
Board of the Fund as conclusive evidence (a) of the authority of any person to
act in accordance with such vote, or (b) of any determination or of any action
by the Board as described in such vote, and such vote may be considered as in
full force and effect until receipt by the Company of written notice to the
contrary.
ARTICLE 14. ASSIGNMENT.
Except as provided below or elsewhere in this Agreement, neither this
Agreement nor any of the rights or obligations under this Agreement may be
assigned by either party without the written consent of the other party.
A. This Agreement shall inure to the benefit of and be binding upon the
parties and their respective permitted successors and assigns.
B. With respect to Transfer Agency Services, the Company may without
further consent on the part of the Investment Company subcontract for the
performance of Transfer Agency Services with such other provider of services
duly registered as a transfer agent under Section 17A(c)(1) or as the Company
shall select. The Company shall be as fully responsible to the Investment
Company for the acts and omissions of any subcontractor as it is for its own
acts and omissions.
C. With regard to Fund Accounting Services, the Company may without
further consent on the part of the Investment Company subcontract for the
performance of such services with any affiliate of the Company. The Company
shall be as fully responsible to the Investment Company for the acts and
omissions of any subcontractor as it is for its own acts and omissions.
D. The Company shall upon instruction from the Investment Company
subcontract for the performance of services under this Agreement with an Agent
selected by the Investment Company, other than as described in B. and C. above;
provided, however, that the Company shall in no way be responsible to the
Investment Company for the acts and omissions of the Agent.
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ARTICLE 15. DOCUMENTS.
A. In connection with the appointment of the Company under this
Agreement, the Investment Company shall file with the Company the following
documents:
(1) A copy of the Charter and By-Laws of the Investment Company and
all amendments thereto;
(2) A copy of the resolution of the Board of the Investment Company
authorizing this Agreement;
(3) All account application forms and other documents relating to
Shareholders accounts; and
(4) A copy of the current Prospectus for each Fund.
B. The Fund will also furnish from time to time the following documents:
(1) Each resolution of the Board of the Investment Company authorizing
the original issuance of each Fund's, and/or Class's Shares;
(2) Each Registration Statement filed with the SEC and amendments
thereof and orders relating thereto in effect with respect to the sale of
Shares of any Fund, and/or Class;
(3) A certified copy of each amendment to the governing document and
the By-Laws of the Investment Company;
(4) Certified copies of each vote of the Board authorizing officers to
give Proper Instructions to the Custodian and agents for fund accounting,
custody services, and shareholder recordkeeping or transfer agency
services;
(5) Such other certificates, documents or opinions which the Company
may, in its discretion, deem necessary or appropriate in the proper
performance of its duties; and
(6) Revisions to the Prospectus of each Fund.
ARTICLE 16. REPRESENTATIONS AND WARRANTIES.
A. Representations and Warranties of the Company
The Company represents and warrants to the Fund that:
(1) It is a savings bank existing and in good standing under the laws
of the United States;
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(2) It is duly qualified to carry on its business in each jurisdiction
where the nature of its business requires such qualification;
(3) It is empowered under applicable laws and by its Articles of
Incorporation and By-Laws to enter into and perform this Agreement;
(4) All requisite corporate proceedings have been taken to authorize
it to enter into and perform its obligations under this Agreement;
(5) It has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and obligations
under this Agreement; and
(6) It is in material compliance with federal securities law
requirements as is necessary for the Company to conduct its business.
B. Representations and Warranties of the Investment Company
The Investment Company represents and warrants to the Company that:
(1) It is an investment company duly organized and existing and in
good standing under the laws of its state of organization;
(2) It is empowered under applicable laws and by its Charter and
By-Laws to enter into and perform its obligations under this Agreement;
(3) All corporate proceedings required by said Charter and By-Laws
have been taken to authorize it to enter into and perform its obligations
under this Agreement;
(4) The Investment Company is an open-end investment company
registered under the 1940 Act; and
(5) A registration statement under the 1933 Act will be effective, and
appropriate state securities law filings have been made and will continue
to be made, with respect to all Shares of each Fund being offered for sale.
ARTICLE 17. STANDARD OF CARE AND INDEMNIFICATION.
A. Standard of Care
With regard to Sections One, Two and Three, the Company shall be held to a
standard of reasonable care in carrying out the provisions of this Contract. The
Company shall be entitled to rely on and may act upon advice of counsel for the
Investment Company, Administrator, Adviser, Sub-adviser, or other party
contracted by or approved by the Investment Company or Fund, on all matters, and
shall be without liability for any action reasonably taken or omitted
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pursuant to such advice, provided that such action is not in violation of
applicable federal or state laws or regulations, and is in good faith.
B. Indemnification by Investment Company
The Company shall not be responsible for and the Investment Company and/or
Fund shall indemnify and hold the Company, including its officers, directors,
shareholders and their agents, employees and affiliates, harmless against any
and all losses, damages, costs, charges, counsel fees, payments, expenses and
liabilities arising out of or attributable to:
(1) The acts or omissions of any Administrator, Adviser, Sub-adviser,
or other party contracted by or approved by the Investment Company or Fund,
(2) The reliance on or use by the Company or its agents or
subcontractors of information, records and documents in proper form which
(a) are received by the Company or its agents or subcontractors
and furnished to it by or on behalf of the Fund, its Shareholders or
investors regarding the purchase, redemption or transfer of Shares and
Shareholder account information;
(b) are received by the Company from independent pricing services
or sources for use in valuing the assets of the Funds; or
(c) are received by the Company or its agents or subcontractors
from Administrators, Advisers, Sub-advisers or other third parties
contracted by or approved by the Investment Company of Fund for use in
the performance of services under this Agreement;
(d) have been prepared and/or maintained by the Fund or its
affiliates or any other person or firm on behalf of the Investment
Company.
(3) The reliance on, or the carrying out by the Company or its agents
or subcontractors of Proper Instructions of the Investment Company or the
Fund.
(4) The offer or sale of Shares in violation of any requirement under
the federal securities laws or regulations or the securities laws or
regulations of any state that such Shares be registered in such state or in
violation of any stop order or other determination or ruling by any federal
agency or any state with respect to the offer or sale of such Shares in
such state.
Provided, however, that the Company shall not be protected by this Article
17 from liability for any act or omission resulting from the Company's willful
misfeasance, bad faith, negligence or reckless disregard of its duties or
failure to meet the standard of care set forth above in this Article 17.
20
<PAGE>
C. Reliance
At any time the Company may apply to any officer of the Investment Company
or Fund for instructions, and may consult with legal counsel with respect to any
matter arising in connection with the services to be performed by the Company
under this Agreement, and the Company and its agents or subcontractors shall not
be liable and shall be indemnified by the Investment Company or the appropriate
Fund for any action reasonably taken or omitted by it in reliance upon such
instructions or upon the opinion of such counsel provided such action is not in
violation of applicable federal or state laws or regulations.
D. Notification
In order that the indemnification provisions contained in this Article 17
shall apply, upon the assertion of a claim for which either party may be
required to indemnify the other, the party seeking indemnification shall
promptly notify the other party of such assertion, and shall keep the other
party advised with respect to all developments concerning such claim. The party
who may be required to indemnify shall have the option to participate with the
party seeking indemnification in the defense of such claim. The party seeking
indemnification shall in no case confess any claim or make any compromise in any
case in which the other party may be required to indemnify it except with the
other party's prior written consent.
ARTICLE 18. TERM AND TERMINATION OF AGREEMENT.
This Agreement shall be effective from on the first date set forth above
and shall continue until August 31, 2000 ("Term"). Thereafter, the Agreement
will continue for successive twelve month terms, unless terminated by either
party upon two months notice. In the event, however, of willful misfeasance,
bad faith, negligence or reckless disregard of its duties by the Company, the
Investment Company has the right to terminate the Agreement upon 60 days written
notice, if Company has not cured such willful misfeasance, bad faith, negligence
or reckless disregard of its duties within 60 days. The termination date for
all original or after-added Investment companies which are, or become, a party
to this Agreement shall be coterminous. Investment Companies that merge or
dissolve during the Term, shall cease to be a party on the effective date of
such merger or dissolution.
Should the Investment Company exercise its rights to terminate, all
out-of-pocket expenses associated with the movement of records and materials
will be borne by the Investment Company or the appropriate Fund. Additionally,
the Company reserves the right to charge for any other reasonable expenses
associated with such termination. The provisions of Article 18 shall survive
the termination of this Agreement.
ARTICLE 19. AMENDMENT.
This Agreement may be amended or modified by a written agreement executed
by both parties.
21
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ARTICLE 20. INTERPRETIVE AND ADDITIONAL PROVISIONS.
In connection with the operation of this Agreement, the Company and the
Investment Company may from time to time agree on such provisions interpretive
of or in addition to the provisions of this Agreement as may in their joint
opinion be consistent with the general tenor of this Agreement. Any such
interpretive or additional provisions shall be in a writing signed by both
parties and shall be annexed hereto, provided that no such interpretive or
additional provisions shall contravene any applicable federal or state
regulations or any provision of the Charter. No interpretive or additional
provisions made as provided in the preceding sentence shall be deemed to be an
amendment of this Agreement.
ARTICLE 21. GOVERNING LAW.
This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of the State of Delaware.
ARTICLE 22. NOTICES.
Except as otherwise specifically provided herein, Notices and other
writings delivered or mailed postage prepaid to the Investment Company at One
East Liberty, Third Floor, Reno, Nevada 89501, or to the Company at 4922
Fairmont Avenue, Bethesda, MD 20814, or to such other address as the Investment
Company or the Company may hereafter specify, shall be deemed to have been
properly delivered or given hereunder to the respective address.
ARTICLE 23. COUNTERPARTS.
This Agreement may be executed simultaneously in two or more counterparts,
each of which shall be deemed an original.
ARTICLE 24. MERGER OF AGREEMENT.
This Agreement constitutes the entire agreement between the parties hereto
and supersedes any prior agreement with respect to the subject hereof whether
oral or written.
ARTICLE 25. SUCCESSOR AGENT.
If a successor agent for the Investment Company shall be appointed by the
Investment Company, the Company shall upon termination of this Agreement deliver
to such successor agent at the office of the Company all properties of the
Investment Company held by it hereunder. If no such successor agent shall be
appointed, the Company shall at its office upon receipt of Proper Instructions
deliver such properties in accordance with such instructions.
22
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In the event that no written order designating a successor agent or Proper
Instructions shall have been delivered to the Company on or before the date when
such termination shall become effective, then the Company shall have the right
to deliver to a bank or trust company, which is a "bank" as defined in the 1940
Act, of its own selection, having an aggregate capital, surplus, and undivided
profits, as shown by its last published report, of not less than $25,000,000,
all properties held by the Company under this Agreement. Thereafter, such bank
or trust company shall be the successor of the Company under this Agreement.
ARTICLE 26. FORCE MAJEURE.
The Company shall have no liability for cessation of services hereunder or
any damages resulting therefrom to the Fund as a result of work stoppage, power
or other mechanical failure, natural disaster, governmental action,
communication disruption or other impossibility of performance.
ARTICLE 27. ASSIGNMENT; SUCCESSORS.
This Agreement shall not be assigned by either party without the prior
written consent of the other party, except that either party may assign all of
or a substantial portion of its business to a successor, or to a party
controlling, controlled by, or under common control with such party. Nothing in
this Article 27 shall prevent the Company from delegating its responsibilities
to another entity to the extent provided herein.
ARTICLE 28. SEVERABILITY.
In the event any provision of this Agreement is held illegal, void or
unenforceable, the balance shall remain in effect.
ARTICLE 29. LIMITATIONS OF LIABILITY OF TRUSTEES AND SHAREHOLDERS OF THE
INVESTMENT COMPANY.
The execution and delivery of this Agreement have been authorized by the
Trustees of the Investment Company and signed by an authorized officer of the
Investment Company, acting as such, and neither such authorization by such
Trustees nor such execution and delivery by such officer shall be deemed to have
been made by any of them individually or to impose any liability on any of them
personally, and the obligations of this Agreement are not binding upon any of
the Trustees or Shareholders of the Investment Company, but bind only the
property of the Fund, or Class, as provided in the Declaration of Trust.
23
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf under their seals by and through
their duly authorized officers, as of the day and year first above written.
INVESTMENT COMPANIES
(LISTED ON EXHIBIT 1)
By
-----------------------------
Title
---------------------------
RUSHMORE TRUST AND SAVINGS, FSB
By:
-----------------------------
Title
---------------------------
24
<PAGE>
EXHIBIT 1
THE AMERICAN TIGER FUND
American Tiger Top Twenty Portfolio
25
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EXHIBIT 2
THE AMERICAN TIGER FUND
FEE SCHEDULE
BASE CHARGE
10.0 basis points on the first $200 million of average daily net assets
7.5 basis points on the next $200 million of average daily net assets
5.0 basis points after $400 million of average daily net assets
(Asset balance in Fund for Government Investors is not considered in the
base charge calculation.)
TRANSFER AGENCY SERVICES
Monthly Account Maintenance $1.00 per account
Transaction Charge $1.00 per transaction
12b-1 Calculation $0.25 per account, per cycle
MINIMUM MONTHLY CHARGE $2,500.00 EACH IF 1 - 3 PORTFOLIOS OR;
$2,000.00 EACH IF 4 - 6 PORTFOLIOS OR;
$1,500.00 EACH IF 7 - 9 PORTFOLIOS
CUSTODY SERVICES
Portfolio Transaction Charge $12.00 per transaction
MINIMUM MONTHLY CHARGE $1,500.00 EACH IF 1 - 3 PORTFOLIOS OR;
$1,000.00 EACH IF 4 - 6 PORTFOLIOS OR;
$ 500.00 EACH IF 7 - 9 PORTFOLIOS
The above transaction charge is applied to any discretionary security
transaction such as a buy, sell, tender, conversion, maturity, free
receipt/delivery, and in-kind distribution. The charge does not apply to
dividend and interest payments or to cash transactions in Fund for
Government Investors. Mortgage-backed securities, foreign transactions,
futures or options transactions are priced separately.
FUND ACCOUNTING SERVICES
Monthly Charge $1,500.00
26
<PAGE>
THE AMERICAN TIGER FUND
FEE SCHEDULE (Continued)
The above fees shall be accrued by the Funds and shall be paid to the
Company no less frequently than monthly. However, during the first three
months beginning on the date the Fund goes "effective", the minimum monthly
charges set forth above will be waived (i.e., only actual fees will be
charged) and during the next three months the minimum monthly charges for
each Fund will total $2,000/month.
27
<PAGE>
EXHIBIT 8.2
THE AMERICAN TIGER FUNDS
ADMINISTRATIVE SERVICES AGREEMENT
AGREEMENT made as of the 9th day of September, 1998, by and between THE
AMERICAN TIGER 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 registered as such under the Investment Company Act of
1940, as amended (the "Investment Company Act"); and
WHEREAS, the Fund is currently comprised of one portfolio designated as the
"American Tiger Top 20 Portfolio" ("Portfolio"); and
WHEREAS, the Adviser is registering as an investment adviser under the
Investment Advisers Act of 1940, and will be engaged in the business of acting
as investment adviser and providing certain other services to the Fund; and
WHEREAS, the Fund desires to retain the Adviser to render certain
additional services to the Fund regarding certain bookkeeping, accounting, and
administrative services (the "Services") in the manner and on the terms and
conditions hereinafter set forth; and
WHEREAS, the Adviser desires to be retained to perform such services on
said terms and conditions;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafter contained, the Fund and the Adviser agree as follows:
1. DUTIES OF ADVISER: (a) The Fund hereby retains the Adviser to provide
to the Fund: (A) such accounting and bookkeeping services and functions as are
reasonably necessary for the operation of the Fund. Such services shall
include, but shall not be limited to, preparation and maintenance of the
following books, records, and other documents: (1) journals containing daily
itemized records of all purchases and sales, and receipts and deliveries of
securities, and all receipts and disbursements of cash, and all other debits and
credits, in the form required by Rule 31a-1(b)(1) under the Investment Company
Act; (2) general and auxiliary ledgers reflecting all asset, liability,
reserve, capital, income and expense accounts, in the form required by
Rules 31a-1(b)(2)(i)-(iii) under the Investment Company Act; (3) a securities
record or ledger reflecting separately for each portfolio security as of trade
date all "long" and "short" positions carried by the Fund for the account of
each Portfolio, if any, and showing the location of all securities long and the
off-setting position to all securities short, in the form required by
Rule 31a-1(b)(3) under the Investment Company Act; (4) a record of all portfolio
purchases or sales, in the form required by Rule 31a-1(b)(6) under the
Investment Company Act; (5) a record of all puts, calls, spreads, straddles,
and all other options, if any, in which any Portfolio has any direct or indirect
interest or which any Portfolio has granted or guaranteed, in the form required
by Rule 31a-1(b)(7) under the Investment Company Act; (6) a record of the proof
of money balances in all ledger accounts maintained pursuant to this Agreement,
in the form required by Rule 31a-1(b)(8) under the Investment Company Act; and
(7) price mark-up sheets and such records as are necessary to reflect the
1
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determination of each Portfolio's net asset value. The foregoing books and
records shall be maintained by the Adviser in accordance with and for the time
periods specified by applicable rules and regulations, including Rule 31a-2
under the Investment Company Act. All such books and records shall be the
property of the Fund and upon request therefore, the Adviser shall surrender to
the Fund such of the books and records so requested; and (B) certain
administrative services including, but not limited to, administrative services
to shareholders of the Fund and to respond to inquiries related to shareholder
accounts.
(b) The services to be provided hereunder shall also include
supervisory services relating to the preparation and filing with the appropriate
offices of any reports or other documents, on behalf of the Fund, as shall be
required by applicable law and requested by the Fund, from time to time,
including but not limited to tax returns, financial statements, and such
Forms N-1A and other filings required by the securities laws of the United
States or any state as may be requested form time to time by the Fund.
2. PROVISION OF PERSONNEL. The Adviser shall, at its own expense,
maintain such staff and employ or retain such personnel and consult with such
other persons as it shall, from time to time, determine to be necessary or
useful to the performance of its obligations under this Agreement. Without
limiting the generality of the foregoing, such staff and personnel shall be
deemed to include officers of the Adviser and persons employed or otherwise
retained by the Adviser to provide or assist in providing of the Services to the
Fund.
3. PROVISION OF CERTAIN FACILITIES AND EQUIPMENT. The Adviser shall
provide such office space, facilities, and equipment (including, but not limited
to, computer equipment, communication lines and supplies) and such clerical help
and other services as shall be necessary to provide the services to the Fund.
In addition, the Adviser may arrange, on behalf of the Fund and its Portfolios,
to obtain: (1) data processing and/or all of the above services, subject to
approval by a majority of the Fund's Board of Trustees, as necessary to assist
it in providing the Services to the Fund, and (2) pricing information regarding
the Fund's investment securities from such company or companies as are approved
by a majority of the Fund's Board of Trustees, and the Fund shall be financially
responsible to such company or companies as aforesaid, for the reasonable cost
of such services.
4. PROVISION OF INFORMATION TO THE ADVISER. The Fund will, from time to
time, furnish or otherwise make available to the Adviser such information
relating to the business and affairs of the Fund as the Adviser may reasonably
require in order to discharge its duties and obligations hereunder.
5. REIMBURSEMENT OF EXPENSES OF ADVISER. The Fund shall reimburse the
Adviser for such direct expenses, including, but not limited to, (i) those
listed in paragraph 1(b) and 3 above, incurred on behalf of the Fund that are
associated with the providing of the Services, and (ii) those paid to any
delegates of the Adviser pursuant to Section 13 hereof. In no event, however,
shall such reimbursement exceed levels that are fair and reasonable in light of
the usual and customary charges made by others for services of the same nature
and quality. Reimbursement under this Agreement shall be calculated and paid
monthly.
2
<PAGE>
The Adviser shall not be required to pay any filing fees and expenses
incurred in connection with the filing of reports or documents pursuant to
section 1(b) herein, or required to be filed by applicable federal or state law,
which fees or expenses shall be borne directly by the Fund.
6. ACCESS TO RECORDS. The Adviser will permit representatives of the
Fund, including the Fund's independent auditors, to have reasonable access to
the personnel and records of the Adviser in order to enable such representatives
to monitor the quality of services being provided and the determination of
reimbursements due the Adviser pursuant to this Agreement. In addition, the
Adviser shall promptly deliver to the Board of Trustees of the Fund such
information as may reasonably be requested form time to time to permit the Board
of Trustees to make an informed determination regarding continuation of this
Agreement and the payments contemplated to be made hereunder.
7. LIMITATION 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 Fund 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.
8. DURATION OF AGREEMENT. This Agreement shall become effective as of the
date of execution hereof and shall remain in effect for two (2) years from the
date hereof and from year to year thereafter, provided such continuance is
approved at least annually by the vote of a majority of the Trustees of the Fund
who are not parties to this Agreement or "interested persons" (as defined in the
Investment Company Act) of any such party, which vote must be cast in person at
a meeting called for the purpose of voting on such approval; and further
PROVIDED, HOWEVER, that (a) the Fund may, at any time and without the payment of
any penalty, terminate this Agreement upon written notice to the Adviser;
(b) this Agreement shall immediately terminate in the event of its "assignment"
(within the meaning of the Investment company Act) to the extent that it would
similarly be required to terminate under similar circumstances if it were an
advisory contract subject to the provisions of Section 15 of the Investment
Company Act and the rules thereunder; and (c) the Adviser may terminate this
Agreement without payment of penalty on sixty days' written notice to the Fund.
Any notice under this Agreement shall be given in writing, addressed and
delivered, or mailed post-paid, to the other party at the principal office of
such party.
9. GOVERNING LAW. This Agreement shall be construed in accordance with
the laws of the State of Delaware and the applicable provisions of the
Investment Company Act. To the extent the applicable law of the State of
Delaware or any of the provisions herein conflict with the applicable provisions
of the Investment Company Act, the latter shall control.
10. SEPARATE CONTRACT. This Agreement is separate and distinct from, and
neither affects nor is affected by (i) the Distribution Agreement in effect
between the Fund and Navellier Securities Corp., a Delaware Corporation, or
(ii) the Investment Advisory Agreement in effect between the Adviser and the
Fund.
11. BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of the Fund and the Adviser and their respective successors.
3
<PAGE>
12. AMENDMENT. No amendment or modification of this Agreement shall be
effective unless in writing signed by other parties and witnessed and until
approved by a majority of the outstanding shares of the Fund.
13. DELEGATION OF DUTIES. The Adviser may delegate each duty to be
performed by it hereunder; PROVIDED, HOWEVER, that notwithstanding any such
delegation, the Adviser shall remain responsible for the performance of the
duties to be performed by it hereunder as though such delegation had not
occurred.
14. 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.
15. COMPENSATION. The Fund shall, in addition to reimbursing Adviser for
expenses as described in Section 5, pay Adviser an annual fee payable monthly
equal to .25% of the Fund's average daily net asset value for performing such
administrative services.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement on the day and year first above written in San Francisco,
California.
THE AMERICAN TIGER FUNDS
By:
------------------------------------------
Louis G. Navellier, Trustee
ATTEST:
By:
------------------------------------------
Jacques Delacroix, Trustee
/s/ By:
- ------------------------- ------------------------------------------
Barry Sander, Trustee
By:
------------------------------------------
Joel Rossman, Trustee
By:
------------------------------------------
Arjen Kuyper, Trustee
Attest:
/s/ NAVELLIER MANAGEMENT, INC.
- -------------------------
By:
------------------------------------------
Louis G. Navellier, President
4
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EXHIBIT 99.9
TRUSTEE INDEMNIFICATION AGREEMENT
In consideration of Louis G. Navellier ("Trustee"), acting as a trustee of
The American Tiger Funds (the "Fund"), pursuant to a Declaration of Trust dated
September 9, 1998, the Fund and Trustee agree as follows: Trustee will use his
best efforts in performing his Trustee obligations, but in the absence of
willful misfeasance, bad faith, gross negligence, or reckless disregard of his
obligations, Trustee shall not be liable to the Fund, or any of the Fund's
investors, for any error of judgment or mistake of law or fact, for any act or
omission by Trustee or for any losses sustained by the Fund, or the Fund's
investors.
The Fund shall indemnify each of its Trustees, officers, employees, and
agents (including persons who serve at its request as directors, officers, or
trustees of another organization in which it has any interest, as a shareholder,
creditor, or otherwise) against all liabilities and expenses (including amounts
paid in satisfaction of judgments, in compromise, as fines and penalties, and as
counsel fees) reasonably incurred by him in connection with the defense or
disposition of any action, suit, or other proceeding, whether civil or criminal,
in which he may be involved or with which he may be threatened, while in office
or thereafter, by reason of his being or having been such a Trustee, officer,
employee, or agent, except with respect to any matter as to which he shall have
been adjudicated to have acted in bad faith, willful misfeasance, gross
negligence, or reckless disregard of his duties; provided, however, that as to
any matter disposed of by a compromise payment by such Person, pursuant to a
consent decree or otherwise, no indemnification either for said payment or for
any other expenses shall be provided unless there has been a determination that
such person
1
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did not engage in bad faith, willful misfeasance, gross negligence, or reckless
disregard of his duties involved in the conduct of his office by the court or
other body approving the settlement or other disposition or by a reasonable
determination, based upon review of readily available facts (as opposed to a
full trial-type inquiry), that he did not engage in such conduct by written
opinion from independent legal counsel approved by a majority of a quorum of
trustees who are neither interested persons nor parties to the proceedings. The
rights accruing to any person under these provisions shall not exclude any other
right to which he may be lawfully entitled; provided that no person may satisfy
any right of indemnity or reimbursement granted herein or to which he may
otherwise be entitled except out of the Fund Property. A majority of a quorum
of disinterested non-party Trustees may make advance payments in connection with
indemnification under this section, provided that the indemnified person shall
have given a written undertaking adequately secured to reimburse the Fund in the
event it is subsequently determined that he is not entitled to such
indemnification, or a majority of a quorum of disinterested non-party Trustees
or independent counsel determine, after a review of readily available facts,
that the person seeking indemnification will probably be found to be entitled to
indemnification.
Insofar as indemnification for liability arising under the Securities Act
of 1933 may be permitted to the Trustees, officers, and controlling persons of
the Fund pursuant to the provisions described herein, the Fund has been advised
that, in the opinion of the SEC, such indemnification is against public policy
as expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Fund of expenses incurred or paid by a Trustee, officer, or controlling
person of the Fund in the successful defense of any action, suit, or proceeding)
is asserted by such Trustee, officer, or controlling person in connection with
the securities
2
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being registered, the Fund will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
The Fund may purchase and maintain insurance on behalf of an officer,
Trustee, employee, or agent protecting such person, to the full extent permitted
by applicable law, from liability incurred by such person as officer, Trustee,
employee, or agent of the Fund or arising from his activities in such capacity.
This Agreement may be amended from time to time by written agreement signed
by all of the parties; provided, that such amendment shall be approved both by
the vote of a majority of Trustees of the Fund, including a majority of Trustees
who are not interested persons of the Trustee to this Agreement (other than as
Trustees of the Fund) 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 Fund to which this Agreement is applicable.
This Agreement may be amended by agreement of the parties without the vote
or consent of the shareholders of the Fund 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 Fund nor the Trustee shall be liable for failing to do so.
In the event of any litigation or disagreement between the parties
regarding the subject of this indemnification, the prevailing party shall, in
addition to any other relief, be paid its reasonable attorneys' fees and costs
as determined by the court or trier of fact hearing said
3
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dispute. The parties agree that any litigation arising out of this
indemnification shall only be brought and heard and shall only be venued in a
federal or state court in Reno, Nevada.
THE AMERICAN TIGER FUNDS
Dated as of September 9, 1998
By:
------------------------------------
Jacques Delacroix, Trustee
By:
------------------------------------
Barry Sander, Trustee
By:
------------------------------------
Joel Rossman, Trustee
By:
------------------------------------
Arjen Kuyper, Trustee
ACCEPTED AND AGREED
By:
-------------------------------
Louis G. Navellier, Trustee
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TRUSTEE INDEMNIFICATION AGREEMENT
In consideration of Barry Sander ("Trustee"), acting as a trustee of The
American Tiger Funds (the "Fund"), pursuant to a Declaration of Trust dated
September 9, 1998, the Fund and Trustee agree as follows: Trustee will use his
best efforts in performing his Trustee obligations, but in the absence of
willful misfeasance, bad faith, gross negligence, or reckless disregard of his
obligations, Trustee shall not be liable to the Fund, or any of the Fund's
investors, for any error of judgment or mistake of law or fact, for any act or
omission by Trustee or for any losses sustained by the Fund, or the Fund's
investors.
The Fund shall indemnify each of its Trustees, officers, employees, and
agents (including persons who serve at its request as directors, officers, or
trustees of another organization in which it has any interest, as a shareholder,
creditor, or otherwise) against all liabilities and expenses (including amounts
paid in satisfaction of judgments, in compromise, as fines and penalties, and as
counsel fees) reasonably incurred by him in connection with the defense or
disposition of any action, suit, or other proceeding, whether civil or criminal,
in which he may be involved or with which he may be threatened, while in office
or thereafter, by reason of his being or having been such a Trustee, officer,
employee, or agent, except with respect to any matter as to which he shall have
been adjudicated to have acted in bad faith, willful misfeasance, gross
negligence, or reckless disregard of his duties; provided, however, that as to
any matter disposed of by a compromise payment by such Person, pursuant to a
consent decree or otherwise, no indemnification either for said payment or for
any other expenses shall be provided unless there has been a determination that
such person
1
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did not engage in bad faith, willful misfeasance, gross negligence, or reckless
disregard of his duties involved in the conduct of his office by the court or
other body approving the settlement or other disposition or by a reasonable
determination, based upon review of readily available facts (as opposed to a
full trial-type inquiry), that he did not engage in such conduct by written
opinion from independent legal counsel approved by a majority of a quorum of
trustees who are neither interested persons nor parties to the proceedings. The
rights accruing to any person under these provisions shall not exclude any other
right to which he may be lawfully entitled; provided that no person may satisfy
any right of indemnity or reimbursement granted herein or to which he may
otherwise be entitled except out of the Fund Property. A majority of a quorum
of disinterested non-party Trustees may make advance payments in connection with
indemnification under this section, provided that the indemnified person shall
have given a written undertaking adequately secured to reimburse the Fund in the
event it is subsequently determined that he is not entitled to such
indemnification, or a majority of a quorum of disinterested non-party Trustees
or independent counsel determine, after a review of readily available facts,
that the person seeking indemnification will probably be found to be entitled to
indemnification.
Insofar as indemnification for liability arising under the Securities Act
of 1933 may be permitted to the Trustees, officers, and controlling persons of
the Fund pursuant to the provisions described herein, the Fund has been advised
that, in the opinion of the SEC, such indemnification is against public policy
as expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Fund of expenses incurred or paid by a Trustee, officer, or controlling
person of the Fund in the successful defense of any action, suit, or proceeding)
is asserted by such Trustee, officer, or controlling person in connection with
the securities
2
<PAGE>
being registered, the Fund will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
The Fund may purchase and maintain insurance on behalf of an officer,
Trustee, employee, or agent protecting such person, to the full extent permitted
by applicable law, from liability incurred by such person as officer, Trustee,
employee, or agent of the Fund or arising from his activities in such capacity.
This Agreement may be amended from time to time by written agreement signed
by all of the parties; provided, that such amendment shall be approved both by
the vote of a majority of Trustees of the Fund, including a majority of Trustees
who are not interested persons of the Trustee to this Agreement (other than as
Trustees of the Fund) 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 Fund to which this Agreement is applicable.
This Agreement may be amended by agreement of the parties without the vote
or consent of the shareholders of the Fund 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 Fund nor the Trustee shall be liable for failing to do so.
In the event of any litigation or disagreement between the parties
regarding the subject of this indemnification, the prevailing party shall, in
addition to any other relief, be paid its reasonable attorneys' fees and costs
as determined by the court or trier of fact hearing said
3
<PAGE>
dispute. The parties agree that any litigation arising out of this
indemnification shall only be brought and heard and shall only be venued in a
federal or state court in Reno, Nevada.
THE AMERICAN TIGER FUNDS
Dated as of September 9, 1998
By:
-------------------------------------
Louis G. Navellier, Trustee
By:
-------------------------------------
Jacques Delacroix, Trustee
By:
-------------------------------------
Joel Rossman, Trustee
By:
-------------------------------------
Arjen Kuyper, Trustee
ACCEPTED AND AGREED
By:
-------------------------
Barry Sander, Trustee
4
<PAGE>
TRUSTEE INDEMNIFICATION AGREEMENT
In consideration of Arjen Kuyper ("Trustee"), acting as a trustee of The
American Tiger Funds (the "Fund"), pursuant to a Declaration of Trust dated
September 9, 1998, the Fund and Trustee agree as follows: Trustee will use his
best efforts in performing his Trustee obligations, but in the absence of
willful misfeasance, bad faith, gross negligence, or reckless disregard of his
obligations, Trustee shall not be liable to the Fund, or any of the Fund's
investors, for any error of judgment or mistake of law or fact, for any act or
omission by Trustee or for any losses sustained by the Fund, or the Fund's
investors.
The Fund shall indemnify each of its Trustees, officers, employees, and
agents (including persons who serve at its request as directors, officers, or
trustees of another organization in which it has any interest, as a shareholder,
creditor, or otherwise) against all liabilities and expenses (including amounts
paid in satisfaction of judgments, in compromise, as fines and penalties, and as
counsel fees) reasonably incurred by him in connection with the defense or
disposition of any action, suit, or other proceeding, whether civil or criminal,
in which he may be involved or with which he may be threatened, while in office
or thereafter, by reason of his being or having been such a Trustee, officer,
employee, or agent, except with respect to any matter as to which he shall have
been adjudicated to have acted in bad faith, willful misfeasance, gross
negligence, or reckless disregard of his duties; provided, however, that as to
any matter disposed of by a compromise payment by such Person, pursuant to a
consent decree or otherwise, no indemnification either for said payment or for
any other expenses shall be provided unless there has been a determination that
such person
1
<PAGE>
did not engage in bad faith, willful misfeasance, gross negligence, or reckless
disregard of his duties involved in the conduct of his office by the court or
other body approving the settlement or other disposition or by a reasonable
determination, based upon review of readily available facts (as opposed to a
full trial-type inquiry), that he did not engage in such conduct by written
opinion from independent legal counsel approved by a majority of a quorum of
trustees who are neither interested persons nor parties to the proceedings. The
rights accruing to any person under these provisions shall not exclude any other
right to which he may be lawfully entitled; provided that no person may satisfy
any right of indemnity or reimbursement granted herein or to which he may
otherwise be entitled except out of the Fund Property. A majority of a quorum
of disinterested non-party Trustees may make advance payments in connection with
indemnification under this section, provided that the indemnified person shall
have given a written undertaking adequately secured to reimburse the Fund in the
event it is subsequently determined that he is not entitled to such
indemnification, or a majority of a quorum of disinterested non-party Trustees
or independent counsel determine, after a review of readily available facts,
that the person seeking indemnification will probably be found to be entitled to
indemnification.
Insofar as indemnification for liability arising under the Securities Act
of 1933 may be permitted to the Trustees, officers, and controlling persons of
the Fund pursuant to the provisions described herein, the Fund has been advised
that, in the opinion of the SEC, such indemnification is against public policy
as expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Fund of expenses incurred or paid by a Trustee, officer, or controlling
person of the Fund in the successful defense of any action, suit, or proceeding)
is asserted by such Trustee, officer, or controlling person in connection with
the securities
2
<PAGE>
being registered, the Fund will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
The Fund may purchase and maintain insurance on behalf of an officer,
Trustee, employee, or agent protecting such person, to the full extent permitted
by applicable law, from liability incurred by such person as officer, Trustee,
employee, or agent of the Fund or arising from his activities in such capacity.
This Agreement may be amended from time to time by written agreement signed
by all of the parties; provided, that such amendment shall be approved both by
the vote of a majority of Trustees of the Fund, including a majority of Trustees
who are not interested persons of the Trustee to this Agreement (other than as
Trustees of the Fund) 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 Fund to which this Agreement is applicable.
This Agreement may be amended by agreement of the parties without the vote
or consent of the shareholders of the Fund 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 Fund nor the Trustee shall be liable for failing to do so.
In the event of any litigation or disagreement between the parties
regarding the subject of this indemnification, the prevailing party shall, in
addition to any other relief, be paid its reasonable attorneys' fees and costs
as determined by the court or trier of fact hearing said
3
<PAGE>
dispute. The parties agree that any litigation arising out of this
indemnification shall only be brought and heard and shall only be venued in a
federal or state court in Reno, Nevada.
THE AMERICAN TIGER FUNDS
Dated as of September 9, 1998
By:
-------------------------------------
Louis G. Navellier, Trustee
By:
-------------------------------------
Jacques Delacroix, Trustee
By:
-------------------------------------
Barry Sander, Trustee
By:
-------------------------------------
Joel Rossman, Trustee
ACCEPTED AND AGREED
By:
-------------------------
Arjen Kuyper, Trustee
4
<PAGE>
TRUSTEE INDEMNIFICATION AGREEMENT
In consideration of Joel Rossman ("Trustee"), acting as a trustee of The
American Tiger Funds (the "Fund"), pursuant to a Declaration of Trust dated
September 9, 1998, the Fund and Trustee agree as follows: Trustee will use his
best efforts in performing his Trustee obligations, but in the absence of
willful misfeasance, bad faith, gross negligence, or reckless disregard of his
obligations, Trustee shall not be liable to the Fund, or any of the Fund's
investors, for any error of judgment or mistake of law or fact, for any act or
omission by Trustee or for any losses sustained by the Fund, or the Fund's
investors.
The Fund shall indemnify each of its Trustees, officers, employees, and
agents (including persons who serve at its request as directors, officers, or
trustees of another organization in which it has any interest, as a shareholder,
creditor, or otherwise) against all liabilities and expenses (including amounts
paid in satisfaction of judgments, in compromise, as fines and penalties, and as
counsel fees) reasonably incurred by him in connection with the defense or
disposition of any action, suit, or other proceeding, whether civil or criminal,
in which he may be involved or with which he may be threatened, while in office
or thereafter, by reason of his being or having been such a Trustee, officer,
employee, or agent, except with respect to any matter as to which he shall have
been adjudicated to have acted in bad faith, willful misfeasance, gross
negligence, or reckless disregard of his duties; provided, however, that as to
any matter disposed of by a compromise payment by such Person, pursuant to a
consent decree or otherwise, no indemnification either for said payment or for
any other expenses shall be provided unless there has been a determination that
such person
1
<PAGE>
did not engage in bad faith, willful misfeasance, gross negligence, or reckless
disregard of his duties involved in the conduct of his office by the court or
other body approving the settlement or other disposition or by a reasonable
determination, based upon review of readily available facts (as opposed to a
full trial-type inquiry), that he did not engage in such conduct by written
opinion from independent legal counsel approved by a majority of a quorum of
trustees who are neither interested persons nor parties to the proceedings. The
rights accruing to any person under these provisions shall not exclude any other
right to which he may be lawfully entitled; provided that no person may satisfy
any right of indemnity or reimbursement granted herein or to which he may
otherwise be entitled except out of the Fund Property. A majority of a quorum
of disinterested non-party Trustees may make advance payments in connection with
indemnification under this section, provided that the indemnified person shall
have given a written undertaking adequately secured to reimburse the Fund in the
event it is subsequently determined that he is not entitled to such
indemnification, or a majority of a quorum of disinterested non-party Trustees
or independent counsel determine, after a review of readily available facts,
that the person seeking indemnification will probably be found to be entitled to
indemnification.
Insofar as indemnification for liability arising under the Securities Act
of 1933 may be permitted to the Trustees, officers, and controlling persons of
the Fund pursuant to the provisions described herein, the Fund has been advised
that, in the opinion of the SEC, such indemnification is against public policy
as expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Fund of expenses incurred or paid by a Trustee, officer, or controlling
person of the Fund in the successful defense of any action, suit, or proceeding)
is asserted by such Trustee, officer, or controlling person in connection with
the securities
2
<PAGE>
being registered, the Fund will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
The Fund may purchase and maintain insurance on behalf of an officer,
Trustee, employee, or agent protecting such person, to the full extent permitted
by applicable law, from liability incurred by such person as officer, Trustee,
employee, or agent of the Fund or arising from his activities in such capacity.
This Agreement may be amended from time to time by written agreement signed
by all of the parties; provided, that such amendment shall be approved both by
the vote of a majority of Trustees of the Fund, including a majority of Trustees
who are not interested persons of the Trustee to this Agreement (other than as
Trustees of the Fund) 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 Fund to which this Agreement is applicable.
This Agreement may be amended by agreement of the parties without the vote
or consent of the shareholders of the Fund 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 Fund nor the Trustee shall be liable for failing to do so.
In the event of any litigation or disagreement between the parties
regarding the subject of this indemnification, the prevailing party shall, in
addition to any other relief, be paid its reasonable attorneys' fees and costs
as determined by the court or trier of fact hearing said
3
<PAGE>
dispute. The parties agree that any litigation arising out of this
indemnification shall only be brought and heard and shall only be venued in a
federal or state court in Reno, Nevada.
THE AMERICAN TIGER FUNDS
Dated as of September 9, 1998
By:
-------------------------------------
Louis G. Navellier, Trustee
By:
-------------------------------------
Jacques Delacroix, Trustee
By:
-------------------------------------
Barry Sander, Trustee
By:
-------------------------------------
Arjen Kuyper, Trustee
ACCEPTED AND AGREED
By:
-------------------------
Joel Rossman, Trustee
4
<PAGE>
TRUSTEE INDEMNIFICATION AGREEMENT
In consideration of Jacques Delacroix ("Trustee"), acting as a trustee of
The American Tiger Funds (the "Fund"), pursuant to a Declaration of Trust dated
September 9, 1998, the Fund and Trustee agree as follows: Trustee will use his
best efforts in performing his Trustee obligations, but in the absence of
willful misfeasance, bad faith, gross negligence, or reckless disregard of his
obligations, Trustee shall not be liable to the Fund, or any of the Fund's
investors, for any error of judgment or mistake of law or fact, for any act or
omission by Trustee or for any losses sustained by the Fund, or the Fund's
investors.
The Fund shall indemnify each of its Trustees, officers, employees, and
agents (including persons who serve at its request as directors, officers, or
trustees of another organization in which it has any interest, as a shareholder,
creditor, or otherwise) against all liabilities and expenses (including amounts
paid in satisfaction of judgments, in compromise, as fines and penalties, and as
counsel fees) reasonably incurred by him in connection with the defense or
disposition of any action, suit, or other proceeding, whether civil or criminal,
in which he may be involved or with which he may be threatened, while in office
or thereafter, by reason of his being or having been such a Trustee, officer,
employee, or agent, except with respect to any matter as to which he shall have
been adjudicated to have acted in bad faith, willful misfeasance, gross
negligence, or reckless disregard of his duties; provided, however, that as to
any matter disposed of by a compromise payment by such Person, pursuant to a
consent decree or otherwise, no indemnification either for said payment or for
any other expenses shall be provided unless there has been a determination that
such person
1
<PAGE>
did not engage in bad faith, willful misfeasance, gross negligence, or reckless
disregard of his duties involved in the conduct of his office by the court or
other body approving the settlement or other disposition or by a reasonable
determination, based upon review of readily available facts (as opposed to a
full trial-type inquiry), that he did not engage in such conduct by written
opinion from independent legal counsel approved by a majority of a quorum of
trustees who are neither interested persons nor parties to the proceedings. The
rights accruing to any person under these provisions shall not exclude any other
right to which he may be lawfully entitled; provided that no person may satisfy
any right of indemnity or reimbursement granted herein or to which he may
otherwise be entitled except out of the Fund Property. A majority of a quorum
of disinterested non-party Trustees may make advance payments in connection with
indemnification under this section, provided that the indemnified person shall
have given a written undertaking adequately secured to reimburse the Fund in the
event it is subsequently determined that he is not entitled to such
indemnification, or a majority of a quorum of disinterested non-party Trustees
or independent counsel determine, after a review of readily available facts,
that the person seeking indemnification will probably be found to be entitled to
indemnification.
Insofar as indemnification for liability arising under the Securities Act
of 1933 may be permitted to the Trustees, officers, and controlling persons of
the Fund pursuant to the provisions described herein, the Fund has been advised
that, in the opinion of the SEC, such indemnification is against public policy
as expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Fund of expenses incurred or paid by a Trustee, officer, or controlling
person of the Fund in the successful defense of any action, suit, or proceeding)
is asserted by such Trustee, officer, or controlling person in connection with
the securities
2
<PAGE>
being registered, the Fund will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
The Fund may purchase and maintain insurance on behalf of an officer,
Trustee, employee, or agent protecting such person, to the full extent permitted
by applicable law, from liability incurred by such person as officer, Trustee,
employee, or agent of the Fund or arising from his activities in such capacity.
This Agreement may be amended from time to time by written agreement signed
by all of the parties; provided, that such amendment shall be approved both by
the vote of a majority of Trustees of the Fund, including a majority of Trustees
who are not interested persons of the Trustee to this Agreement (other than as
Trustees of the Fund) 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 Fund to which this Agreement is applicable.
This Agreement may be amended by agreement of the parties without the vote
or consent of the shareholders of the Fund 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 Fund nor the Trustee shall be liable for failing to do so.
In the event of any litigation or disagreement between the parties
regarding the subject of this indemnification, the prevailing party shall, in
addition to any other relief, be paid its reasonable attorneys' fees and costs
as determined by the court or trier of fact hearing said
3
<PAGE>
dispute. The parties agree that any litigation arising out of this
indemnification shall only be brought and heard and shall only be venued in a
federal or state court in Reno, Nevada.
THE AMERICAN TIGER FUNDS
Dated as of September 9, 1998
By:
-------------------------------------
Louis G. Navellier, Trustee
By:
-------------------------------------
Barry Sander, Trustee
By:
-------------------------------------
Joel Rossman, Trustee
By:
-------------------------------------
Arjen Kuyper, Trustee
ACCEPTED AND AGREED
By:
-------------------------------
Jacques Delacroix, Trustee
4
<PAGE>
EXHIBIT 99.10
LAW OFFICES
SAMUEL KORNHAUSER
155 Jackson Street, Suite 1807, San Francisco, CA 9411
(415) 981-6281; FAX (415) 981-7616
SAMUEL KORNHAUSER
September 9, 1998
The American Tiger Funds
One East Liberty, Third Floor
Reno, Nevada 89501
Gentlemen:
I have acted as counsel to The American Tiger Funds (the "Fund") in
connection with the preparation of a Registration Statement on Form N-1A for
filing with the Securities and Exchange Commission, covering shares of common
stock at no par value, of the Fund.
I have prepared and examined the Declaration of Trust and By-Laws of the
Fund, the Registration Statement, and such other corporate records and documents
as I have deemed necessary for the purpose of this opinion. I also have
examined such other documents, papers, statues, and authorities as I deemed
necessary to form a basis for the opinion hereinafter expressed. In my
examination of such material, I have assumed the genuineness of all signatures
and the conformity to original documents of all copies submitted to me. As to
various questions of fact material to such opinion, I have relied upon
statements and certificates of officers and representatives of the Fund and
others.
I am admitted only to the bar of the States of California and Ohio. As to
various questions arising under the laws of the State of Delaware, I have relied
on statues and various other registered Delaware business trust documents.
Based upon the foregoing, I am of the opinion that the shares of common
stock, no par value, of the Fund to be issued in accordance with the terms of
the offering as set forth in the Prospectus included as part of the Registration
Statement, have been duly and validly authorized for issuance by the Board of
Trustees of the Fund and, when issued and sold as described in the Registration
Statement, will be legally issued, fully paid, and non-assessable.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference of my name in the Prospectus
included in the Registration Statement ad to the filing of this opinion as an
exhibit to any application made by or on behalf of the Fund or any Distributor
or dealer in connection with the registration and qualification of the fund or
its common stock under the securities laws of any state or
<PAGE>
jurisdiction. In giving such permission, I do not admit hereby that I come
within the category of persons whose consent is required under Section 7 of the
Securities Act of 1933 or the rules and regulations of the Securities and
Exchange Commission thereunder.
Very truly yours,
LAW OFFICES OF SAMUEL KORNHAUSER
By:
-------------------------------------
Samuel Kornhauser
SK/ds
<PAGE>
EXHIBIT 99.11
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the references to our firm in the Registration Statement on Form
N-1A of the American Tiger Funds (the "TRUST") and to the use of our report
dated September 4, 1998 on the statement of assets and liabilities of The
American Tiger Top 20 Portfolio. Such statement of assets and liabilities
appears in the Trust's Statement of Additional Information.
TAIT, WELLER & BAKER
Philadelphia, Pennsylvania
September 4, 1998
<PAGE>
EXHIBIT 99.13
SUBSCRIPTION FOR SHARES
September 3, 1998
The Board of Trustees
of The American Tiger Funds
Gentlemen:
The undersigned hereby offers to purchase an aggregate of 10,000 shares of
common stock (no par value per share) of The American Tiger Funds (the "Fund")
for the consideration set forth below. This subscription and purchase is made
for investment purposes without any present intention of redeeming or selling
the shares subscribed for and purchased.
<TABLE>
<CAPTION>
Number of Purchase
Portfolio Shares Price
- --------- --------- --------
<S> <C> <C>
American Tiger Top
20 Portfolio 10,000 $100,000
</TABLE>
Very truly yours,
-----------------------------
Louis G. Navellier
<PAGE>
EXHIBIT 99.13.1
Navellier Management, Inc.
One East Liberty, Third Floor
Reno, Nevada 89501
September 9, 1998
The American Tiger Funds
One East Liberty, Third Floor
Reno, Nevada 89501
Re: Investment Adviser Operating Expenses
Reimbursement Agreement
Gentlemen:
Since the inception of operations of The American Tiger Funds (the "Fund"),
Navellier Management, Inc. (the "Adviser"), has paid the operating expenses of
the Fund without requiring reimbursement from the Fund. The purpose of this
letter is to obtain an acknowledgment from the Fund that (i) the Adviser has
been under no obligation to pay such operating expenses, and (ii) the Adviser is
under no obligation to continue to pay the Fund's operating expenses now or in
the future.
Notwithstanding the foregoing, until further notice to the contrary, the
Adviser will continue to pay the Fund's operating expenses without requiring
current reimbursement, from the Fund, of expenses advanced which total more than
1.5% of the Fund's total operating expenses, i.e., the Adviser will be entitled
to reimbursement of expenses advanced to the extent that such reimbursement plus
other Fund operating expenses do not exceed 1.5% per annum. If the Fund's total
operating expenses exceed 1.5% per annum, the excess expenses advanced will not
be reimbursed. The Adviser reserves the right to require reimbursement in the
future for operating expenses of the Fund at any time upon notice to the Fund
that some or all past and presently accrued operating expenses of the Fund shall
be required to be reimbursed to the Adviser, or paid directly by the Fund.
<PAGE>
If the foregoing accurately reflects the Fund's understanding regarding the
matters discussed herein, please sign and return the enclosed copy of this
letter.
Very truly yours,
NAVELLIER MANAGEMENT, INC.
By:
-------------------------------
Louis G. Navellier, President
ACKNOWLEDGED AND
AGREED as to THE AMERICAN TIGER FUNDS
the 9th day of September, 1998:
By:
-----------------------------------
Barry Sander, Trustee
By:
-----------------------------------
Joel Rossman, Trustee
By:
-----------------------------------
Arjen Kuyper, Trustee
By:
-----------------------------------
Jacques Delacroix, Trustee
By:
-----------------------------------
Louis G. Navellier, Trustee
<PAGE>
EXHIBIT 99.15
THE AMERICAN TIGER FUNDS
RULE 12b-1 DISTRIBUTION PLAN
FOR
THE AMERICAN TIGER TOP 20 PORTFOLIO
This distribution plan (the "Rule 12 b-1 Distribution Plan" or the
"Plan"), has been adopted by the American Tiger Top 20 Portfolio (the
"Portfolio") of The American Tiger Funds, a registered open-end investment
company organized as a Delaware Business Trust (the "Fund"), pursuant to Rule
12b-1 under the Investment Company Act of 1940, as amended (the "Act").
W H E R E A S
The American Tiger Top 20 Portfolio presently distributes its shares
of capital stock through a contractual arrangement with a principal distributor,
Chatfield Dean & Co. (the "Principal Distributor"), duly qualified to act on
behalf of the American Tiger Top 20 Portfolio in such capacity, which contract
has been approved by the Fund's Board of Trustees in accordance with
requirements of the Act (the "Distribution Agreement"). Pursuant to the
Distribution Agreement, the Principal Distributor may enter into service
agreements ("Service Agreements") with certain securities dealers, financial
institutions or other industry professionals, such as investment advisers,
accountants and estate planning firms (severally, a "Service Organization") for
<PAGE>
distribution and promotion of, administration of, and servicing investors in,
the American Tiger Top 20 Portfolio's shares.
Under this proposal, the American Tiger Top 20 Portfolio and its
Investment Advisor (the "Advisor") may from time to time and from their own
funds or from such other resources as may be permitted by rules of the
Securities and Exchange Commission, make payments as described in Sections 2 and
3 hereof for distribution and service assistance.
In voting to approve the Plan and related Service Agreement, the Board
requested and evaluated such information as it deemed necessary to an informed
determination and has concluded, in the exercise of their reasonable business
judgment and in light of their respective fiduciary duties, that there is a
reasonable likelihood that the plan will benefit the American Tiger Top 20
Portfolio and its shareholders.
NOW, THEREFORE, in consideration of the foregoing, the American Tiger
Top 20 Portfolio hereby adopts this Plan under the Act:
1. The Principal Distributor shall act as distributor of the
American Tiger Top 20 Portfolio's shares pursuant to the Distribution Agreement
and shall receive from the American Tiger Top 20 Portfolio an annual 0.25% 12b-1
fee (payable pro rata monthly) of the average daily net assets of the American
Tiger Top 20 Portfolio. Payments under this 0.25% 12b-1 fee may exceed actual
expenses of the Principal Distributor in distributing, promoting and servicing
the American Tiger Top 20 Portfolio. The Principal Distributor may, at its own
expense, enter into Service
<PAGE>
Agreements with Service Organizations for Distribution and Service Assistance.
2. The American Tiger Top 20 Portfolio shall pay all costs and
expenses in connection with the preparation, printing and distribution of the
American Tiger Top 20 Portfolio's prospectuses and shareholder reports to
existing shareholders. The Principal Distributor shall pay for printing and
distribution of prospectuses sent to prospective investors and any promotional
material.
3. (a) There shall be paid periodically to one or more Service
Organizations payments in respect of such Service Organizations' services to the
American Tiger Top 20 Portfolio's shares owned by shareholders for whom the
Service Organization is the dealer of record or holder of record, or owned by
shareholders for whom the Service Organization provides service assistance.
These payments for services shall be included in the 12b-1 fee paid to
Distributor and shall be paid by Distributor to such Service Organization out of
the 12b-1 fee. Payments to the Principal Distributor under the 12b-1 plan may
exceed the Principal Distributor's actual expenses and payments to Service
Organizations. The Service Payments are subject to compliance with the terms of
the Service Agreements between the Service Organization and the Principal
Distributor.
(b) Distribution and Service Assistance, as defined in this
Plan, shall include, but not be limited to, INTER ALIA, (i) formulating and
implementing marketing and promotional activities,
<PAGE>
including, but not limited to, direct mail promotions and television, radio,
newspaper, magazine and other mass media advertising; (ii) arranging and
contracting for the preparation and printing of sales literature and the mailing
and distribution thereof; (iii) procuring, evaluating and providing to the
American Tiger Top 20 Portfolio such information, analyses and opinions with
respect to marketing and promotional activities as the American Tiger Top 20
Portfolio may, from time to time, reasonably request; (iv) providing office
space and equipment, telephone facilities and dedicated personnel as is
necessary to provide the services hereunder; (v) answering Client inquiries
regarding the American Tiger Top 20 Portfolio and assisting Clients in changing
dividend options, account designations and addresses; (vi) establishing and
maintaining Client accounts and records; (vii) processing purchase and
redemption transactions; (viii) providing automatic investment in American Tiger
Top 20 Portfolio shares of Client cash account balances; (ix) providing periodic
statements showing a client's account balance and integrating such statements
with those of other transactions and balances in the Client's other accounts
serviced by the Service Organization; and (x) arranging for bank wires and such
other services as the American Tiger Top 20 Portfolio may request, to the extent
that the Service Organization is permitted by applicable statute, rule or
regulation. Anything stated herein to the contrary notwithstanding and subject
to the rules and regulations of the Act, any Service Payments made pursuant to
this Plan shall cover any series or class of shares of capital stock of the
American Tiger Top 20 Portfolio as to which the Plan is effective.
<PAGE>
(c) In each year that this Plan remains in effect, the
Distributor of the American Tiger Top 20 Portfolio and/or the Investment Advisor
shall prepare and furnish to the Board of Trustees of the American Tiger Top 20
Portfolio and the Trustees shall review, at least quarterly, written reports,
complying with the requirements of Rule 12b-1 under the Act, of the amounts
expended under the Plan and purposes for which such expenditures were made.
4. The Fund will allocate the amounts expended by it under the Plan
to each series or class of securities of the Fund as to which the Plan is
effective in the proportion that the average daily net asset values of such
series or class of securities bears to the average daily net assets of all such
series or classes of securities as to which the Plan is effective.
5. The Plan shall become effective upon approval by (a) a vote of
(i) the American Tiger Top 20 Portfolio's Board of Trustees and (ii) the
Qualified Trustees (as defined in Section 8 hereof), cast in person at a meeting
called for the purpose of voting thereon, and (b) with respect to the securities
of the American Tiger Top 20 Portfolio, at least a majority vote of the
outstanding voting securities of the American Tiger Top 20 Portfolio, as defined
in Section 2(a)(42) of the Act.
6. This Plan shall remain in effect for one year from its adoption
date and may be continued thereafter if this Plan is approved at least annually
by a vote of the Board of Trustees of the American Tiger Top 20 Portfolio, and
of the Qualified Trustees, cast in person at a meeting called for the purpose of
voting on
<PAGE>
such Plan. This Plan may not be amended in order to increase materially the
amounts to be expended in accordance with Sections 1, 2 and 3(a) hereof without
approval of each series or class of securities affected in accordance with
Section 5 hereof. All material amendments to this Plan must be approved by a
vote of the Board of Trustees of the American Tiger Top 20 Portfolio, and of the
Qualified Trustees, cast in person at a meeting called for the purpose of voting
thereon.
7. This Plan may be terminated at any time by a majority vote of the
Trustees who are not interested persons (as defined in Section 2(a)(19) of the
Act) of the American Tiger Top 20 Portfolio ("Independent Trustees") and have no
direct or indirect financial interest in the operation of the Plan or in any
agreements related to the Plan ("Qualified Trustees"), by vote of a majority of
the outstanding voting securities of the American Tiger Top 20 Portfolio, as
defined in Section 2(a)(42) of the Act.
8. While this Plan shall be in effect, the selection and nomination
of the Independent Trustees of the American Tiger Top 20 Portfolio shall be
committed to the discretion of the Independent Trustees then in office.
9. Any termination or noncontinuance of a Service Agreement by the
Principal Distributor with a particular Service Organization shall have no
effect on similar agreements between the Principal Distributor and other Service
Organizations.
10. The Principal Distributor is not obligated by this Plan to
execute a Service Agreement with a qualifying Service Organization nor is it
required to pay all or any portion of the
<PAGE>
12b-1 fee to any service organization. The Principal Distributor shall be
entitled to retain the entire amount of the 12b-1 fee.
11. The American Tiger Top 20 Portfolio shall preserve copies of this
Plan and any related agreements and all reports made pursuant to Paragraph 6
hereof, for a period of not less than six years from the date of this Plan, or
the agreements or such report, as the case may be, the first two years in an
easily accessible place.
Dated: September 9, 1998
THE AMERICAN TIGER TOP 20 PORTFOLIO
OF THE AMERICAN TIGER FUNDS
By
------------------------------
Louis G. Navellier, Trustee
By
------------------------------
Barry Sander, Trustee
By
------------------------------
Joel Rossman, Trustee
By
------------------------------
Arjen Kuyper, Trustee
By
------------------------------
Jacques Delacroix, Trustee
