Exhibit (e)(5)
NAVELLIER PERFORMANCE FUNDS
XXX XXXX XXXXXXX, XXXXX XXXXX
XXXX, XXXXXX 00000
DEALER'S AGREEMENT
IFS Fund Distributors, Inc. ("Underwriter") invites you, as a selected
dealer, to participate as principal in the distribution of shares (the "Shares")
of Navellier Performance 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 must be made at net asset
value determined by, or for, the Trust, and shall be subject to the conditions
of offering set forth in the then-current prospectus of the Trust (the
"Prospectus"), including the Trust's policies and procedures with respect to
frequent purchases and redemptions of Shares, if any, and to the terms and
conditions herein set forth. 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
the Rules of the National Association of Securities Dealers, Inc. (the "NASD"),
including Section 2740 of the Conduct Rules of the NASD. Specifically, you agree
to comply with Rule 22c-1 of the Investment Company Act of 1940, as amended. 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 Underwriter in its
sole discretion. The Underwriter reserves the right, in its discretion, without
notice, to suspend sales or withdraw the offering of Shares entirely.
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 (1) 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, (2) 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. 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.
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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.
11. (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 as set forth in the
Trust's then-current prospectus. You hereby authorize Underwriter to act as your
agent in connections 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) Underwriter shall notify you promptly of any amendments to the
Trust's prospectus.
12. 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 it plans 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
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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. The Trust agrees not to use the information
received for marketing or any other similar purpose without your prior written
consent.
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 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 business days after the instructions have been executed.
For purposes of this paragraph 12:
The term "Trust" includes the Trust's principal underwriter and transfer
agent. The term not does 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.
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 the
NASD 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.
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(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.
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.
15. (a) 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.
(b) Underwriter agrees to indemnify you and hold you and your
affiliates harmless against all losses, claims, demands liabilities and expenses
including reasonable legal and other expenses in defending claims or liabilities
arising from, (a) any wrongful act or omission by Underwriter or its affiliates
not in accordance with this Agreement, or (b) any untrue statement or alleged
untrue statement of any material fact contained in the prospectus or any
amendment or supplement thereto, or which shall arise out of or be based upon
any omission or alleged omission to state a material fact required to be stated
in the prospectus or any amendment or supplement thereto or which is necessary
to make the statements or a part thereof not misleading.
(c) These indemnification provisions shall survive the termination
of this Agreement.
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16. 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: (1) Have
and maintain policies and procedures designed to detect and prevent money
laundering; (2) Have designated an Anti-Money Laundering Compliance Officer; (3)
Have and provide regular anti-money laundering training to your employees; (4)
Will arrange for an independent audit of your anti-money laundering program; (5)
Have policies and procedures in place to report suspicious activity relating to
anti-money laundering; (6) Have policies and procedures in place relating to
detect and terminate correspondent accounts for unregulated foreign shell banks;
and (7) 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.
17. 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. 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.
18. All communications to Underwriter should be sent to IFS Fund
Distributors, Inc., 000 Xxxxxxxx, Xxxxx 0000, Xxxxxxxxxx, Xxxx 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.
19. 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.
Underwriter may modify the terms of this Agreement by providing you with written
notice of the modifications, which shall become effective fifteen business days
following your receipt of the written notice unless you notify Underwriter in
writing that you do not accept any such modification.
20. 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.
21. This Agreement shall be binding (i) upon placing your first order with
Underwriter for the purchase of Shares, or (ii) upon receipt by Underwriter in
Cincinnati, Ohio of
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a counterpart of this Agreement duly accepted and signed by you, whichever shall
occur first. This Agreement shall be construed in accordance with the laws of
the State of Ohio.
22. 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.
THE REMAINDER OF THIS PAGE HAS BEEN LEFT INTENTIONALLY BLANK
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If the foregoing is in accordance with your understanding of our agreement,
please sign and return one copy of this Agreement to the Underwriter.
ACCEPTED BY DEALER IFS FUND DISTRIBUTORS, INC.
By:________________________________ By: ___________________________
Authorized Signature, Position
___________________________________
Type or Print Name Date: __________________________
___________________________________
Dealer Name
___________________________________
Address
___________________________________
Phone
___________________________________
Date
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