NAVELLIER FUNDS Dealer's Agreement
NAVELLIER
FUNDS
Dealer's
Agreement
BHIL Distributors, Inc. ("Underwriter")
invites you, as a selected dealer, to participate as principal in the
distribution of shares (the "Shares") of Navellier Funds (the "Trust"), of which
it is the exclusive underwriter. Underwriter agrees to sell to you,
subject to any limitations imposed by the Trust, Shares issued by the Trust and
to promptly confirm each sale to you. All sales will be made
according to the following terms:
1. All
offerings of any of the Shares by you shall be made at the public offering price
per Share (i.e., the net asset value per Share plus any applicable initial sales
load, if any) determined by, or for, the Trust, subject to the terms and
conditions set forth in the then-current prospectus of the Trust (the
"Prospectus"); provided, however,
that you may, at your discretion, sell Class A shares of any of the Funds from
time to time at net asset value, with all loads thereon waived, to the extent
permitted by the terms of the Prospectus. You agree to comply with all
requirements applicable to you of all applicable laws, including federal and
state securities laws, the rules and regulations of the Securities and Exchange
Commission, and Financial Industry Regulatory Authority (“FINRA”) Rules,
including Section 2740 of the Conduct Rules of the NASD contained within the
FINRA rulebook. Specifically, you agree to comply with Rule 22c-1 of
the Investment Company Act of 1940, as amended. You will maintain
such controls and procedures as are necessary to ensure compliance with this
paragraph. You agree to certify, in writing upon the Underwriter’s
request, that your controls and procedures are adequate in design and have been
tested for effectiveness. You will not offer the Shares for sale in
any state or other jurisdiction where they are not qualified for sale under the
Blue Sky Laws and regulations of such state or jurisdiction, or where you are
not qualified to act as a dealer. Upon application to Underwriter,
Underwriter will inform you as to the states or other jurisdictions in which
Underwriter believes the Shares may legally be sold. You further
agree that you will maintain such controls and procedures as are necessary to
ensure compliance with this paragraph.
2.
You hereby authorize Underwriter to act as your agent in connection with all
transactions in open accounts in which you are designated as Dealer of
Record. All designations as Dealer of Record, and all authorizations
of Underwriter to act as your Agent pursuant thereto, shall cease upon the
termination of this Agreement or upon the investor's instructions to transfer
his or her open account to another Dealer of Record.
3. Underwriter
reserves the right to cancel this Agreement at any time without notice if any
Shares shall be offered for sale by you at less than the then-current net asset
value determined by, or for, the Trust.
4. All
orders are subject to acceptance or rejection by the Trust or Underwriter in its
sole discretion. The Trust or Underwriter reserves the right, in its
discretion, without notice, to suspend sales or withdraw the offering of Shares
entirely.
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5. You
represent that you maintain controls with respect to the processing of Trust
trades received prior to and after the close of trading on the NYSE (the “Close
of Trading”), and that you have designed procedures to provide reasonable
assurance that such controls are effective. Such controls and procedures
are designed to provide reasonable assurance that trades placed prior to the
Close of Trading are executed at the current day's NAV, trades placed after the
Close of Trading are executed at the next day's NAV, and that the receipt and
delivery of transactional information are effected in a timely manner. You
agree that (a) you or your affiliate will obtain a report from an independent
source regarding the controls related to the processing of transactions and you
will provide a copy of such report upon request; or alternatively,
(b) you agree to provide a certification regarding adherence to
the provisions of the paragraph upon request.
6. Payment
shall be made to the Trust and shall be received by its transfer agent within
three (3) business days after the acceptance of your order or such shorter time
as may be required by law. With respect to all Shares ordered by you
for which payment has not been received, you hereby assign and pledge to
Underwriter all of your right, title and interest in such Shares to secure
payment therefor. You appoint Underwriter as your agent to execute
and deliver all documents necessary to effectuate any of the transactions
described in this paragraph. If such payment is not received within
the required time period, Underwriter reserves the right, without notice, and at
its option, forthwith (a) to cancel the sale, (b) to sell the Shares ordered by
you back to the Trust, or (c) to assign your payment obligation, accompanied by
all pledged Shares, to any person. You agree that Underwriter may
hold you responsible for any loss, including loss of profit, suffered by the
Trust, its Transfer Agent or Underwriter, resulting from your failure to make
payment within the required time period.
7. You
will offer and sell shares of the Funds only in accordance with the terms and
conditions of the then-current prospectus and Statement of Additional
Information. No person is authorized to make any representations
concerning Shares of the Trust except those contained in the current applicable
Prospectus and Statement of Additional Information and in sales literature
issued and furnished by Underwriter supplemental to such
Prospectus. Underwriter will furnish additional copies of the current
Prospectus and Statement of Additional Information and such sales literature and
other releases and information issued by Underwriter in reasonable quantities
upon request.
8. Under
this Agreement, you act as principal and are not employed by Underwriter as
broker, agent or employee. You are not authorized to act for
Underwriter nor to make any representation on its behalf; and in purchasing or
selling Shares hereunder, you rely only upon the current Prospectus and
Statement of Additional Information furnished to you by Underwriter from time to
time and upon such written representations as may hereafter be made by
Underwriter to you over its signature.
9. You
appoint the transfer agent for the Trust as your agent to execute the purchase
transactions of Shares in accordance with the terms and provisions of any
account, program, plan or service established or used by your customers and to
confirm each purchase to your customers on your behalf, and you guarantee the
legal capacity of your customers purchasing such Shares and any
co-owners of such Shares. Orders shall be placed either directly with
the Funds’ Transfer Agent in accordance with such procedures as may be
established by us or the Transfer Agent, or with the Transfer Agent through the
facilities of the National Securities Clearing Corporation (“NSCC”), if
available, in accordance with the rules of the NSCC. You confirm that
all mutual fund orders that you accept and place will be based solely on
instructions received by you in good order prior to the close of trading on the
New York Stock Exchange (on days which the New York Stock Exchange is open for
trading) on the date to which you credit such orders.
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10. You
will (a) maintain all records required by law relating to transactions in the
Shares, and upon the request of Underwriter, or the request of the Trust,
promptly make such records available to Underwriter or to the Trust as are
requested, and (b) promptly notify Underwriter if you experience any difficulty
in maintaining the records required in the foregoing clause in an accurate and
complete manner. In addition, you will establish appropriate
procedures and reporting forms and schedules, approved by Underwriter and by the
Trust, to enable the parties hereto and the Trust to identify all accounts
opened and maintained by your customers. You agree to respond to
investor inquiries concerning the Trust to the best of your ability and to
contact all shareholders in the Trust to whom you have sold Shares on a periodic
basis to provide them with such information about the Trust as Underwriter will
reasonably provide to you.
11. You
agree to provide the Trust, upon written request, the taxpayer identification
number (“TIN”), if known, of any or all Shareholder(s) of the account and the
amount, date, name or other identifier of any investment professional(s)
associated with the Shareholder(s) or account (if known), and transaction type
(purchase, redemption, transfer, or exchange) of every purchase, redemption,
transfer, or exchange of Shares held through an account maintained by you during
the period covered by the request. Requests must set forth a specific
period, not to exceed 180 days from the date of the request, for which
transaction information is sought. The Trust may request
transaction information older than 180 days from the date of the request as it deems
necessary to investigate compliance with policies established by the Trust for
the purpose of eliminating or reducing any dilution of the value of the
outstanding shares issued by the Trust.
You agree
to transmit the requested information that is on its books and records to the
Trust or its designee promptly, but in any event not later than fifteen (15) business days, after
receipt of a request. If the requested information is not on your books and
records, you agree to: (i) provide or arrange to provide to the Trust the
requested information from shareholders who hold an account with an indirect
intermediary; or (ii) if directed by the Trust, block further purchases of Trust
Shares from such indirect intermediary. In such instance, you agree to inform
the Trust whether you plan to perform (i) or (ii). Responses required
by this paragraph must be communicated in writing and in a format mutually
agreed upon by the parties. To the extent practicable, the format for any
transaction information provided to the Trust should be consistent with the NSCC
Standardized Data Reporting Format. For purposes of this provision, an "indirect
intermediary" has the same meaning as in SEC Rule 22c-2 under the Investment
Company Act of 1940. The Trust agrees not to use the information
received for marketing or any other similar purpose without your prior written
consent.
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You agree to execute written
instructions from the Trust to restrict or prohibit further purchases or
exchanges of Shares by a Shareholder that has been identified by the Trust as
having engaged in transactions of the Trust’s Shares (directly or indirectly
through the Intermediary’s account) that violate policies established by the
Trust for the purpose of eliminating or reducing any dilution of the value of
the outstanding Shares issued by the Trust. Instructions must include
the TIN, if known, and the specific restriction(s) to be executed. If the TIN is
not known, the instructions must include an equivalent identifying number of the
Shareholder(s) or account(s) or other agreed upon information to which the
instruction relates. You agree to execute instructions as soon as
reasonably practicable, but not later than five (5) business days after receipt
of the instructions by the Intermediary. You must provide written
confirmation to the Trust that instructions have been executed. You agree to
provide confirmation as soon as reasonably practicable, but not later than ten
(10) business days after the instructions have been executed.
For
purposes of these paragraphs:
The term
“Trust” includes the Trust’s principal underwriter and transfer agent. The term
does not include any “excepted funds” as defined in SEC Rule 22c-2(b) under the
Investment Company Act of 1940.
The term
“Shares” means the interests of Shareholders corresponding to the redeemable
securities of record issued by the Trust under the Investment Company Act of
1940 that are held by you.
The term
“Shareholder” means the beneficial owner of Shares, whether the Shares are held
directly or by you in nominee name.
The term
“written” includes electronic writings and facsimile transmissions.
12. (a) You
will receive a discount from the public offering price (“concession”) on all
Shares purchased by you from Underwriter as indicated in the Trust’s
then-current prospectus, as it may be amended from time to time.
(b) In
all transactions in open accounts in which you are designated as Dealer of
Record, you will receive the concessions (12b-1 fees) as set forth in the
Trust’s then-current prospectus. You hereby authorize Underwriter to act as your
agent in connection with all transactions in opening accounts in which you are
designated as Dealer of Record. All designations as Dealer of Record and all
authorizations of Underwriter to act as your Agent pursuant thereto, shall cease
upon the termination of this Agreement or upon the investor’s instructions to
transfer his open account to another Dealer of Record. No dealer concessions
will be allowed on purchases generating less than $1.00 in dealer
concessions.
(c) Subject
to and in accordance with the terms of the Prospectus and the Distribution Plan
and/or Service Plan, if any, adopted by the Trust pursuant to Rule 12b-1 under
the Investment Company Act of 1940, you will receive such fees as indicated in
the Trust’s then-current prospectus, as it may be amended by Underwriter from
time to time, for distribution, shareholder or administrative services, as
described therein. With respect to such payments to you, Underwriter
shall have only the obligation to make payments to you after, for as long as,
and to the extent that, Underwriter receives from the Trust an amount equivalent
to the amount payable to you. The Trust and Underwriter each reserves
the right, without prior notice, to suspend, eliminate or change the payment of
such Rule 12b-1 Plan payments or other dealer compensation by amendment, sticker
or supplement to the Prospectus. Underwriter shall notify you
promptly of any amendments to the Trust’s prospectus.
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13. Each
party hereto represents that it is presently, and, at all times during the term
of this Agreement, will be, a member in good standing of FINRA and agrees to
abide by all its Rules of Conduct including, but not limited to, the following
provisions:
(a) You
shall not withhold placing customers' orders for any Shares so as to profit
yourself as a result of such withholding. You shall not purchase any
Shares from Underwriter other than for investment, except for the purpose of
covering purchase orders already received.
(b) All
conditional orders received by Underwriter must be at a specified definite
price.
(c) Neither
Underwriter, as exclusive underwriter for the Trust, nor you as principal, shall
purchase any Shares from a record holder at a price lower than the net asset
value then quoted by, or for, the Trust. Nothing in this
sub-paragraph shall prevent you from selling Shares for the account of a record
holder to Underwriter or the Trust at the net asset value currently quoted by,
or for, the Trust and charging the investor a fair commission for handling the
transaction.
(d) You
warrant on behalf of yourself and your registered representatives and employees
that any purchase of Shares at net asset value by the same pursuant to the terms
of the Prospectus of the Trust is for investment purposes only and not for
purposes of resale. Shares so purchased may be resold only to the
Trust.
(e) You
understand and acknowledge that the Trust may offer Shares in multiple classes,
and you represent and warrant that you have established compliance procedures
designed to ensure that your customers are made aware of the terms of each
available class of Fund Shares, to ensure that each customer is offered only
Shares that are suitable investments for him or her, to ensure that each
customer is availed of the opportunity to obtain sales charge break points as
detailed in the Prospectus, and to ensure proper supervision of your
representatives in recommending and offering the Shares of multiple classes to
your customers.
14. Underwriter
represents that (a) the Trust is properly registered pursuant to the Investment
Company Act of 1940; (b) that the Trust's Shares are properly registered under
the Securities Act of 1933; (c) that the registration statement and Prospectus
comply in all material respects with the provisions of the Securities Act of
1933, including the rules and regulations promulgated thereunder, and do not
contain any untrue statement of material fact nor omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; and (d) Underwriter is not aware of any investigation commenced by
the Securities and Exchange Commission or any other regulatory or
self-regulatory organization, or any proceeding or threatened proceeding, that
concerns the Trust.
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15. You
agree to deliver or cause to be delivered to each Shareholder at or prior to the
time of any purchase of Shares, a copy of the then-current prospectus of the
applicable Fund and, upon request by a Shareholder, a copy of the Trust's
current Statement of Additional Information. You agree to deliver to
Shareholders, upon the request of, copies of amended prospectuses and to deliver
or cause to be delivered to Shareholders proxy solicitation materials and copies
of the Funds' annual and semi-annual reports.
16. You
agree that you will indemnify Underwriter, the Trust, the Trust's transfer
agent, the Trust's investment adviser, and the Trust's custodian and hold such
persons harmless from any claims or assertions relating to the lawfulness of
your participation in this Agreement and the transactions contemplated hereby or
relating to any activities of any persons or entities affiliated with you which
are performed in connection with the discharge of your responsibilities under
this Agreement. If any such claims are asserted, the indemnified
parties shall have the right to engage in their own defense, including the
selection and engagement of legal counsel of their choosing, and all costs of
such defense shall be borne by you. Such indemnification shall be strictly
limited to actual out-of-pocket losses or damages actually paid or incurred by
the indemnitee and shall not include any
losses or damages or amounts which are paid for or to the indemnitee by
insurance or some other source to reimburse or satisfy the claims or expenses of
the indemnitee. The purpose and intent of this provision is to avoid the
application of the so-called “collateral source rule” so that the indemnitee is
only indemnified for actual net, out-of-pocket losses or damages and does not
receive a “double recovery” from indemnitor and insurance or some other
source.
17. Underwriter
agrees that it will indemnify you and hold you harmless from any claims or
assertions relating to (a) the lawfulness of Underwriter’s participation in this
Agreement and the transactions contemplated hereby: (b) any activities of any
persons or entities affiliated with Underwriter which are performed in
connection with the discharge of Underwriter’s responsibilities under this
Agreement; or (c) any untrue statement, or alleged untrue statement, of a
material fact contained in offering documents, sales literature, or marketing
materials that you or any of your affiliates are provided with by Underwriter or
Trust or their affiliates, or any omission, or alleged omission in such
documents, to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, provided that the untrue
statement, alleged untrue statement, omission, or alleged omission is based on
information provided by Underwriter. If any such claims are asserted,
the indemnified parties shall have the right to engage in their own defense,
including the selection and engagement or legal counsel of their choosing, and
all costs of such defense shall be borne by Underwriter. Such indemnification
shall be strictly limited to actual out-of-pocket losses or damages actually
paid or incurred by the indemnitee and shall not include any
losses or damages or amounts which are paid for or to the indemnitee by
insurance or some other source to reimburse or satisfy the claims or expenses of
the indemnitee. The purpose and intent of this provision is to avoid the
application of the so-called “collateral source rule” so that the indemnitee is
only indemnified for actual net, out-of-pocket losses or damages and does not
receive a “double recovery” from indemnitor and insurance or some other
source.
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18. You
represent and warrant that you have in place and will maintain suitable and
adequate know your customer policies and procedures and that you shall comply
with all applicable laws and regulations regarding anti-money laundering
activity including the USA PATRIOT ACT. Specifically, you: (a) have
and maintain policies and procedures designed to detect and prevent money
laundering; (b) have designated an Anti-Money Laundering Compliance Officer; (c)
have and provide regular anti-money laundering training to your employees; (d)
will arrange for an independent audit of your anti-money laundering program; (e)
have policies and procedures in place to report suspicious activity relating to
anti-money laundering; (f) have policies and procedures in place relating to
detect and terminate correspondent accounts for unregulated foreign shell banks;
and (g) have and maintain a Customer Identification Program that verifies the
identity of your shareholders. You further agree to provide
documentation certifying your compliance with anti-money laundering regulations
to us upon our request.
19. This
Agreement may be assigned by Underwriter to an affiliated entity controlling,
controlled by, or under common control with Underwriter, provided, however, that
this Agreement will automatically terminate in the event of its assignment as
such term is defined in the Investment Company Act of 1940. Either
party hereto may cancel this Agreement without penalty upon ten days' written
notice or immediately for cause, i.e., material breach of any term of this
Agreement. This Agreement may also be terminated at any time without
penalty by the vote of a majority of the members of the Board of Trustees of the
Trust who are not "interested persons" (as such term is defined in the
Investment Company Act of 1940), or by a vote of a majority of the outstanding
voting securities of any series of the Trust with respect to that series on ten
days' written notice.
20. All
communications to Underwriter should be sent to BHIL Distributors, Inc., 0000 X.
Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, XX 00000, or at such other address as
Underwriter may designate in writing. Any notice to you shall be duly
given if mailed or telegraphed to you at the address of your principal office,
as indicated below in your acceptance of this Agreement.
21. This
Agreement supersedes any other agreement with you relating to the offer and sale
of the Shares, and relating to any other matter discussed herein.
22. Underwriter
agrees that the names, addresses and telephone numbers of all customers of you
and your affiliates obtained by virtue of this Agreement shall remain
confidential and shall not be used by Underwriter for any purpose whatsoever
except as may be necessary to distribute and administer the Trust. In
no event shall the names, addresses or telephone numbers of customers or
prospective customers of you and your affiliates be furnished by Underwriter or
its agents to any other individuals, organizations or institutions except as may
be required by law. This provision shall survive termination of this
Agreement. You agree not to provide the names, telephone numbers or addresses of
any Trust shareholder to any third party without the express written consent of
the Trust or the shareholder.
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23. This
Agreement, including any exhibits, may be amended by Underwriter from time to
time by the following procedure. Underwriter will mail a copy of the
amendment to you. If you do not object to the amendment within thirty
(30) days after its receipt, the amendment will become part of the
Agreement. Your objection must be in writing and be received by
Underwriter within such thirty days.
24. This
Agreement shall be binding (i) upon acceptance by Underwriter of your first
order placed with Underwriter for the purchase of Shares, or (ii) upon signing
and dating by Underwriter of a counterpart of this Agreement only after
receiving a similar counterpart duly accepted and signed by you, whichever shall
occur first. For record-keeping purposes, each Party shall keep two
signed originals of their counterpart and forward to the other Party a signed
copy of the counterpart via facsimile, electronically or via hard
copy. Each counterpart will be deemed an original, but all of which
taken together shall constitute but one and the same instrument. Each
Party reserves the right to request a signed original from the other Party at a
later date. This Agreement shall be construed in accordance with the
laws of the State of Ohio.
25. The
undersigned, executing this Agreement on behalf of Dealer, hereby warrants and
represents that he is duly authorized to so execute this Agreement on behalf of
Dealer.
If the foregoing is in accordance with
your understanding of our agreement, please sign and return one copy of this
Agreement to the Underwriter.
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ACCEPTED
BY DEALER
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BHIL
DISTRIBUTORS, INC.
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By:________________________________
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By: ___________________________
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Authorized
Signature, Position
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___________________________________
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Type
or Print Name
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Date:
__________________________
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___________________________________
Dealer
Name
___________________________________
Address
___________________________________
Phone
___________________________________
Date
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