FORM OF
DISTRIBUTION AGREEMENT FOR REGISTRANT
FORM OF
DISTRIBUTION AGREEMENT
BETWEEN
THE TOCQUEVILLE TRUST
AND
TOCQUEVILLE SECURITIES L.P.
THIS AGREEMENT made this ___ day of ______, 199_, by and
between THE TOCQUEVILLE FUND, a Massachusetts business trust (hereinafter
referred to as the "Fund"), on behalf of its series listed on Exhibit A, and
TOCQUEVILLE SECURITIES L.P. (hereinafter referred to as the "Distributor").
W I T N E S S E T H:
In consideration of the mutual covenants herein contained and
other good and valuable consideration, the receipt whereof is hereby
acknowledged, the parties hereto agree as follows:
FIRST: The Fund hereby appoints the Distributor as its
underwriter to promote the sale and to arrange for the sale of shares of
beneficial interest of the Fund to the public through its sales representatives
and to investment dealers in the states set forth in Exhibit B. In addition, the
Distributor may receive payment for certain distribution expenses pursuant to a
Rule 12b- 1 distribution plan.
The Fund agrees to sell and deliver its shares, upon the terms
hereinafter set forth, as long as it has unissued and/or treasury shares
available for sale.
SECOND: The Fund hereby authorizes the Distributor, subject to
law and the Declaration of Trust of the Fund, to accept, for the account of the
Fund, orders for the purchase of its shares, satisfactory to the Distributor, as
of the time of receipt of such orders by the dealer or as otherwise described in
the then current Prospectus of the Fund.
THIRD: The Fund will determine the net asset value of its
shares once daily as of the close of trading on The New York Stock Exchange on
each day that the Exchange is open for business. It is expected that the
Exchange will be closed on Saturdays and Sundays and on New Year's Day, Xxxxxx
Xxxxxx Xxxx Day, President's Day, Good Friday, Memorial Day, Independence Day,
Labor Day, Thanksgiving Day and Christmas Day. The net asset value is determined
by dividing the market value of the Fund's investments as of the close of
trading plus any cash or other assets (including dividends receivable and
accrued interest) less all liabilities (including accrued expenses) by the
number of Fund shares outstanding. Securities traded on the New York Stock
Exchange or the American Stock Exchange will be valued at the last sale price
or, if no sale, at the mean between the latest bid and asked price. Securities
traded in any other U.S. or foreign market shall be valued in a manner as
similar as possible to the above or, if not so traded, on the basis of the
latest available price. Securities sold short against the box will be valued at
market as determined above; however, in instances where the Fund has sold
securities short against a long position in the issuer's convertible securities,
for the purpose of valuation, the securities in
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the short position will be valued at the "asked" price rather than the mean of
the last "bid" and "asked" prices. Gold bullion investments will be valued at
their respective fair market values determined on the basis of the mean between
the last current bid and asked prices based on dealer or exchange quotations.
Where there are no readily available quotations for securities they will be
valued at fair market value as determined by the Board of Trustees of the Fund
acting in good faith.
FOURTH: The Distributor agrees to devote reasonable time and
effort to enlist investment dealers and otherwise promote the sale and
distribution and act as Distributor for the sale and distribution of the shares
of the Fund as such arrangements may profitably be made; but so long as it does
so, nothing herein contained shall prevent the Distributor from entering into
similar arrangements with other funds and to engage in other activities. The
Fund reserves the right to issue shares in connection with any merger or
consolidation of the Fund with any other investment company or any personal
holding company or in connection with offers of exchange exempted from Section
22(a) of the Investment Company Act of 1940.
FIFTH: Upon receipt by the Fund at its principal place of
business of a written order from the Distributor, together with delivery
instructions, the Fund shall, as promptly as practicable, cause certificates for
the shares called for in such order to be delivered or credited in such amounts
and in such names as shall be specified by the Distributor, against payment
therefor in such manner as may be acceptable to the Fund.
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SIXTH: All sales literature and advertisements used by the
Distributor in connection with sales of the shares of the Fund shall be subject
to the approval of the Fund. The Fund authorizes the Distributor in connection
with the sale or arranging for the sale of its shares to give only such
information and to make only such statement or representations as are contained
in the current Prospectus and Statement of Additional Information or in sales
literature or advertisements approved by the Fund or in such financial
statements and reports as are furnished to the Distributor pursuant to this
Agreement. The Fund shall not be responsible in any way for any information,
statements or representations given or made by the Distributor or its
representatives or agents other than such information, statements and
representations contained in the then current Prospectus and Statement of
Additional Information.
SEVENTH: The Distributor as agent of the Fund is authorized,
subject to the direction of the Fund, to accept shares for redemption at their
net asset value, determined as prescribed in the then current prospectus of the
Fund.
EIGHTH: The Fund shall bear:
(A) the expenses of qualification of the shares for sale in
connection with such public offerings in such states as shall be selected by the
Distributor and of continuing the qualification therein until the Distributor
notifies the Fund that it does not wish such qualification continued; and
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(B) all legal expenses in connection with the foregoing.
NINTH: The Distributor shall bear:
(A) the expenses of printing and distributing prospectuses and
statements of additional information (other than those prospectuses and
statements of additional information required by applicable laws and regulations
to be distributed to the shareholders by the Fund and pursuant to any Rule 12b-1
distribution plan), and any other promotional or sales literature which are used
by the Distributor or furnished by the Distributor to purchasers or dealers in
connection with the Distributor's activities pursuant to this Agreement;
(B) expenses of any advertising used by the Distribu-
tor in connection with such public offering; and
TENTH: The Distributor will accept orders for shares of the
Fund only to the extent of purchase orders actually received and not in excess
of such orders, and it will not avail itself of any opportunity of making a
profit by expediting or withholding orders.
ELEVENTH: The Fund shall keep the Distributor fully informed
with regard to its affairs, shall furnish the Distributor with a certified copy
of all financial statements, and a signed copy of each report, prepared by
independent public accountants, and with such reasonable number of printed
copies of each quarterly, semi-annual and annual report of the Fund as the
Distributor may request, and shall cooperate fully in the efforts
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of the Distributor to sell and arrange for the sale of its shares and in the
performance by the Distributor of all its duties under this Agreement.
TWELFTH: The Fund agrees to register, from time to time as
necessary, additional shares with the Securities and Exchange Commission, state
and other regulatory bodies and to pay the related filing fees therefor and to
file such amendments, reports and other documents as may be necessary in order
that there may be no untrue statement of a material fact in the Registration
Statement, Prospectus or necessary in order that there may be no omission to
state a material fact therein necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading. As
used in this Agreement, the term "Registration Statement" shall mean from time
to time the Registration Statement most recently filed by the Fund with the
Securities and Exchange Commission and effective under the Securities Act of
1933, as amended, as such Registration Statement is amended at such time, and
the term "Prospectus" shall mean for the purposes of this Agreement from time to
time the form of prospectus and statement of additional information authorized
by the Trust for use by the Underwriter and by dealers.
THIRTEENTH:
(A) The Fund and the Distributor shall each comply with all
applicable provisions of the Investment Company Act of 1940, the Securities Act
of 1933, and of all other Federal and
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state laws, rules and regulations governing the issuance and sale of shares of
the Fund.
(B) In absence of willful misfeasance, bad faith, gross
negligence or reckless disregard of obligations or duties hereunder on the part
of the Distributor, the Fund agrees to indemnify the Distributor against any and
all claims, demands, liabilities and expenses which the Distributor may incur
under the Securities Act of 1933, or common law or otherwise, arising out of or
based upon any alleged untrue statement of a material fact contained in any
registration statement, statement of additional information or prospectus of the
Fund, or any omission to state a material fact therein, the omission of which
makes any statement contained therein misleading, unless such statement or
omission was made in reliance upon, and in conformity with information furnished
to the Fund in connection therewith by or on behalf of the Distributor. The
Distributor agrees to indemnify the Fund against any and all claims, demands,
liabilities and expenses which the Fund may incur arising out of or based upon
any act or deed of sales representatives of the Distributor which is outside the
scope of their authority.
(C) The Distributor agrees to indemnify the Fund against any
and all claims, demands, liabilities and expenses which the Fund may incur under
the Securities Act of 1933, or common law or otherwise, arising out of or based
upon any alleged untrue statement of a material fact contained in any
registration statement, or Prospectus of the Fund, or any omission to state a
material fact therein if such statement or omission was made in reliance upon,
and in conformity with, information furnished to
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the Fund in connection therewith by or on behalf of the Distributor.
FOURTEENTH: Nothing herein contained shall require the Fund to
take any action contrary to any provision of its trust agreement or to any
applicable statute or regulation.
FIFTEENTH: This Agreement has been approved by the Trustees of
the Fund and shall become effective at the close of business on the date hereof,
and shall remain in effect for two years from the date hereof and shall continue
in force and effect for successive annual periods thereafter, provided that such
continuance is specifically approved at least annually (a)(i) by the Board of
Trustees of the Fund, or (ii) by vote of a majority of the Fund's outstanding
voting securities (as defined in Section 2(a)(42) of the Investment Company
Act), and (b) by vote of a majority of the Fund's Trustees who are not
interested persons (as defined in Section 2(a)(19) of the Investment Company
Act) of the Distributor by votes cast in person at a meeting called for such
purpose.
SIXTEENTH: A copy of the Agreement and Declaration of Trust of
the Trust is on file with the Secretary of The Commonwealth of Massachusetts,
and notice is hereby given that this instrument is executed on behalf of the
Trustees of the Fund as Trustees and not individually and that the obligations
of this instrument are not binding upon any of the Trustees or shareholders
individually but are binding only upon the assets and property of the Fund.
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SEVENTEENTH:
(A) This Agreement may be terminated at any time, without the
payment of any penalty, by vote of the Board of Trustees of the Fund or by vote
of a majority of the outstanding voting securities of the Fund, or by the
Distributor, on sixty (60) days written notice to the other party.
(B) This Agreement shall automatically terminate in the event
of its assignment, the term "assignment" for this purpose having the meaning
defined in Section 2(a)(4) of the Investment Company Act.
EIGHTEENTH: Any notice under this Agreement shall be in
writing, addressed and delivered, or mailed, postage paid, to the other party at
such address as such other party may designate for the receipt of such notices.
Until further notice to the other party, it is agreed that the address of the
Fund shall be 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and the address of the
Distributor shall be 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
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IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed in duplicate on the day and year first above written.
ATTEST: THE TOCQUEVILLE TRUST, on behalf of the
series listed in Exhibit A
By:
---------------- ------------------
ATTEST: TOCQUEVILLE SECURITIES L.P.
By:
---------------- ------------------
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EXHIBIT A
The Tocqueville Gold Fund (as of June 29, 1998)
EXHIBIT B
THE TOCQUEVILLE TRUST
The Tocqueville Gold Fund
