Exhibit h(5)
TRANSFER AGENT AGREEMENT
THIS AGREEMENT is made and entered into on this sixteenth day of June,
1998, by and between The Tocqueville Trust a Massachusetts business trust, on
behalf of the Gold Fund (hereinafter referred to as the "Fund") and Firstar
Trust Company, a corporation organized under the laws of the State of Wisconsin
(hereinafter referred to as the "Agent").
WHEREAS, the Fund are open-ended management investment companies which
are registered under the Investment Company Act of 1940; and
WHEREAS, the Agent is a trust company and, among other things, is in the
business of administering transfer and dividend disbursing agent functions for
the benefit of its customers;
NOW, THEREFORE, the Fund and the Agent do mutually .promise and agree as
follows:
1. Terms of Appointment; Duties of the Agent
Subject to the terms and conditions set forth in this Agreement, the
Funds hereby employ and appoint the Agent to act as transfer agent and dividend
disbursing agent.
The Agent shall perform all of the customary services of a transfer
agent and 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:
A. Receive orders for the purchase of shares;
B. Process purchase orders and issue the appropriate number of
certificated or uncertificated shares with such uncertificated
shares being held in the appropriate shareholder account;
C. Process redemption requests received in good order;
D. Pay monies;
E. Process transfers of shares in accordance with the shareowner's
instructions;
F. Process exchanges between fund within the same family of fund;
G. Issue and/or cancel certificates as instructed; replace lost,
stolen or destroyed certificates upon receipt of satisfactory
indemnification or surety bond;
H. Prepare and transmit payments for dividends and distributions
declared by the Fund;
I. Make changes to shareholder records, including, but not limited
to, address changes in plans (i.e., systematic withdrawal,
automatic investment, dividend reinvestment, etc.);
J. Record the issuance of shares of the Fund and maintain, pursuant
to Securities Exchange Act of 1934 Rule 17ad-10(e), a record of
the total number of shares of the Fund which are authorized,
issued and outstanding.
K. Prepare shareholder meeting lists and, if applicable, mail,
receive and tabulate proxies;
L. Mail shareholder reports and prospectuses to current
shareholders;
M. Prepare and file U.S. Treasury Department forms 1099 and other
appropriate information returns required with respect to
dividends and distributions for all shareholders;
N. Provide shareholder account information upon request and prepare
and mail confirmations and statements of account to shareholders
for all purchases, redemptions and other confirmable
transactions as agreed upon with the Fund; and
O. Provide a Blue Sky System which will enable the Funds to monitor
the total number of shares sold in each state. In addition, the
Funds shall identify to the Agent in writing those transactions
and assets to be treated as exempt from the Blue Sky reporting
to the Fund for each state. The responsibility of the Agent for
the Fund's Blue Sky state registration status is solely limited
to the initial compliance by the Fund and the reporting of such
transactions to the Fund.
2. Compensation
The Fund agrees to pay the Agent for performance of the duties listed in
this Agreement; the fees and out-of-pocket expenses include, but are not limited
to the following: printing, postage, forms, stationery, record retention,
mailing, insertion, programming, labels, shareholder lists and proxy expenses.
Also, Firstar's conversion agreement outlines Tocqueville's consent to
reimburse Firstar for all related expenses of the former Fundamental Fund. These
expenses include but are not limited to programming, hourly labor, parallel
system testing, and any unpaid invoices for Firstar services to Fundamental
prior to the tabulation of Fundamental's shareholder proxy.
These fees and reimbursable expenses may be changed from time to time
subject to mutual written agreement between the Fund and the Agent.
The Fund agree to pay all fees and reimbursable expenses within ten (10)
business days following the mailing of the billing notice.
2
3. Representations of Agent
The Agent represents and warrants to the Fund that:
A. It is a trust company duly organized, existing and in good
standing under the laws of Wisconsin;
B. It is a registered transfer agent under the Securities Exchange
Act of 1934 as amended;
C. It is duly qualified to carry on its business in the state of
Wisconsin;
D. It is empowered under applicable laws and by its charter and
bylaws to enter into and perform this Agreement;
E. All requisite corporate proceedings have been taken to authorize
it to enter and perform this Agreement;
F. 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
G. It will comply with all applicable requirements of the
Securities Act of 1933, as amended, the Securities Exchange Act
of 1934, as amended, the Investment Company Act of 1940, as
amended, and any laws, rules, and regulations of governmental
authorities having jurisdiction.
4. Representations of the Fund
The Fund represent and warrant to the Agent that:
A. The Fund is an open-ended diversified investment company under
the Investment Company Act of 1940;
B. The Fund is a Massachusetts business trust organized, existing,
and in good standing under the laws of Massachusetts;
C. The Fund is empowered under applicable laws and by their
Declaration of Trust and bylaws to enter into and perform this
Agreement;
D. All necessary proceedings required by the Declaration of Trust
have been taken to authorize them to enter into and perform this
Agreement;
E. The Fund will comply with all applicable requirements of the
Securities Act of 1933, as amended, Securities Exchange Act of
1934, as amended, the Investment Company Act of 1940, as
amended, and any laws, rules and regulations of governmental
authorities having jurisdiction, and
F. A registration statement under the Securities Act of 1933 is
currently effective and will remain effective, and appropriate
state securities law filings have been
3
made and will continue to be made, with respect to all shares of
the Fund being offered for sale.
5. Covenants of the Fund and Agent
The Fund shall furnish the Agent a certified copy of the resolution of
the Board of Trustees of the Fund authorizing the appointment of the Agent and
the execution of this Agreement. The Fund shall provide to the Agent a copy of
the Declaration of Trust, bylaws of the Fund, and all amendments.
The Agent shall keep records relating to the services to be performed
hereunder, in the form and manner as it may deem advisable. To the extent
required by Section 31 of the Investment Company Act of 1940, as amended, and
the rules thereunder, the Agent agrees that all such records prepared or
maintained by the Agent relating to the services to be performed by the Agent
hereunder are the property of the Fund and will be preserved, maintained and
made available in accordance with such section and rules and will be surrendered
to the Fund on and in accordance with their request.
6. Indemnification; Remedies Upon Breach
The Agent shall exercise reasonable care in the performance of its
duties under this Agreement. The Agent shall not be liable for any error of
judgment or mistake of law or for any loss suffered by the Fund in connection
with matters to which this Agreement relates, including losses resulting from
mechanical breakdowns or the failure of communication or power supplies beyond
the Agent's control, except a loss resulting from the Agent's refusal or failure
to comply with the terms of this Agreement or from bad faith, negligence, or
willful misconduct on its part in the performance of its duties under this
Agreement. Notwithstanding any other provision of this Agreement, the Fund shall
indemnify and hold harmless the Agent from and against any and all claims,
demands, losses, expenses, and liabilities (whether with or without basis in
fact or law) of any and every nature (including reasonable attorneys' fees)
which the Agent may sustain or incur or which may be asserted against the Agent
by any person arising out of any action taken or omitted to be taken by it in
performing the services hereunder (i) in accordance with the foregoing
standards, or (ii) in reliance upon any written or oral instruction provided to
the Agent by any duly authorized officer of the Fund, such duly authorized
officer to be included in a list of authorized officers furnished to the Agent
and as amended from time to time in writing by resolution of the Board of
Trustees of the Fund.
Further, the Fund will indemnify and hold the Agent harmless against any
and all losses, claims, damages, liabilities or expenses (including reasonable
counsel fees and expenses) resulting from any claim, demand, action, or suit as
a result of the negligence of the Fund or the principal underwriter (unless
contributed to by the Agent's breach of this Agreement or other Agreements
between the Fund and the Agent, or the Agent's own negligence or bad faith); or
as a result of the Agent acting upon telephone instructions relating to the
exchange or redemption of shares received by the Agent and reasonably believed
by the Agent under a standard of care customarily used in the industry to have
originated from the record owner of the subject shares; or as a result of acting
in reliance upon any genuine instrument or stock certificate signed,
4
countersigned, or executed by any person or persons authorized to sign,
countersign, or execute the same.
In the event of a mechanical breakdown or failure of communication or
power supplies beyond its control, the Agent shall take all reasonable steps to
minimize service interruptions for any period that such interruption continues
beyond the Agent's control. The Agent will make every reasonable effort to
restore any lost or damaged data and correct any errors resulting from such a
breakdown at the expense of the Agent. The Agent agrees that it shall, at all
times, have reasonable contingency plans with appropriate parties, making
reasonable provision for emergency use of electrical data processing equipment
to the extent appropriate equipment is available. Representatives of the Fund
shall be entitled to inspect the Agent's premises and operating capabilities at
any time during regular business hours of the Agent, upon reasonable notice to
the Agent.
Regardless of the above, the Agent reserves the right to reprocess and
correct administrative errors at its own expense.
In order that the indemnification provisions contained in this section
shall apply, it is understood that if in any case the Fund may be asked to
indemnify or hold the Agent harmless, the Fund shall be fully and promptly
advised of all pertinent facts concerning the situation in question, and it is
further understood that the Agent will use all reasonable care to notify the
Fund promptly concerning any situation which presents or appears likely to
present the probability of such a claim for indemnification against the Fund.
The Fund shall have the option to defend the Agent against any claim which may
be the subject of this indemnification. In the event that the Fund so elects,
the Fund will so notify the Agent and thereupon the Fund shall take over
complete defense of the claim, and the Agent shall in such situation initiate no
further legal or other expenses for which it shall seek indemnification under
this section. The Agent shall in no case confess any claim or make any
compromise in any case in which the Fund will be asked to indemnify the Agent
except with the Fund's prior written consent.
The Agent shall indemnify and hold the Fund harmless from and against
any and all claims, demands, losses, expenses, and liabilities (whether with or
without basis in fact or law) of any and every nature (including reasonable
attorneys' fees) which may be asserted against the Fund by any person arising
out of any action taken or omitted to be taken by the Agent as a result of the
Agent's refusal or failure to comply with the terms of this Agreement, its bad
faith, negligence, or willful misconduct.
7. Confidentiality
The Agent agrees on behalf of itself and its employees to treat
confidentially all records and other information relative to the Fund and their
shareholders and shall not disclose to any other party, except after prior
notification to and approval in writing by the Fund, which approval shall not be
unreasonably withheld and may not be withheld where the Agent may be exposed to
civil or criminal contempt proceedings for failure to comply after being
requested to divulge such information by duly constituted authorities.
5
Additional Series. The Tocqueville Trust is authorized to issue separate
Series of shares of beneficial interest representing interests in separate
investment portfolios. The parties intend that each portfolio established by the
Trust, now or in the future, be covered by the terms and conditions of this
agreement. The Trust is currently entering into this service agreement for the
Gold Fund.
8. Records
The Agent shall keep records relating to the services to be performed
hereunder, in the form and manner, and for such period as it may deem advisable
and is agreeable to the Fund but not inconsistent with the rules and regulations
of appropriate government authorities, in particular, Section 31 of The
Investment Company Act of 1940 as amended (the "Investment Company Act"), and
the rules thereunder. The Agent agrees that all such records prepared or
maintained by The Agent relating to the services to be performed by The Agent
hereunder are the property of the Fund and will be preserved, maintained, and
made available with such section and rules of the Investment Company Act and
will be promptly surrendered to the Fund on and in accordance with its request.
9. Wisconsin Law to Apply
This Agreement shall be construed and the provisions thereof interpreted
under and in accordance with the laws of the state of Wisconsin.
10. Amendment, Assignment, Termination and Notice
A. This Agreement may be amended by the mutual written consent of
the parties.
B. This Agreement may be terminated upon ninety (90) days' written
notice given by one party to the other.
C. This Agreement and any right or obligation hereunder may not be
assigned by either party without the signed, written consent of
the other party.
D. Any notice required to be given by the parties to each other
under the terms of this Agreement shall be in writing, addressed
and delivered, or mailed to the principal place of business of
the other party. If to the agent, such notice should be sent to
Firstar Trust Company/Mutual Fund Services located at 000 Xxxx
Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000. If to the Fund,
such notice should be sent to The Tocqueville Trust located at
0000 Xxxxxxxx, Xxx Xxxx, X.X. 00000.
E. In the event that the Fund gives to the Agent their written
intention to terminate and appoint a successor transfer agent,
the Agent agrees to cooperate in the transfer of its duties and
responsibilities to the successor, including any and all
relevant books, records and other data established or maintained
by the Agent under this Agreement.
6
F. Should the Fund exercise their right to terminate, all
out-of-pocket expenses associated with the movement of records
and material will be paid by the Fund.
The Tocqueville Trust Firstar Trust Company
By: /s/ Xxxxxx Xxxxx By: /s/ Xxx X. Xxxxxxx
------------------------------------ ---------------------------
Print: Xxxxxx Xxxxx Print: Xxx X. Xxxxxxx
--------------------------------- ------------------------
Title: Vice President Title: Senior Vice president
--------------------------------- ------------------------
Date: 6/25/98 Date: 6/30/98
---------------------------------- -------------------------
Attest: /s/ Xxxx X. Xxxxxx Attest: /s/ Xxxx X. Zen
-------------------------------- -----------------------
7
THE TOCQUEVILLE TRUST
AMENDMENT TO THE TRANSFER AGENT AGREEMENT
THIS AMENDMENT dated as of January 1, 2002 to the Transfer Agent Agreement
dated as of June 16, 1998, by and between The Tocqueville Trust, a Massachusetts
business trust, and Firstar Mutual Fund Services, LLC, a Wisconsin limited
liability company, shall be as follows:
Effective January 1, 2002, the name Firstar Mutual Fund Services, LLC has
been changed to U.S. Bancorp Fund Services, LLC. Accordingly, all references to
Firstar Mutual Fund Services, LLC in this Agreement should be replaced with U.S.
Bancorp Fund Services, LLC. Similarly, any references to Firstar Bank, N.A.
should be replaced with U.S. Bank, N.A.
Paragraph 7 Proprietary and Confidential Information shall he amended and
replaced in its entirety as follows:
7. Proprietary and Confidential Information
USBFS agrees on behalf of itself and its directors, officers, and employees
to treat confidentially and as proprietary information of the Company all
records and other information relative to the Company and prior, present,
or potential shareholders (and clients of said shareholders) and not to use
such records and information for any purpose other than the performance of
its responsibilities and duties hereunder, except after prior notification
to and approval in writing by the Company, which approval shall not be
unreasonably withheld and may not be withheld where USBFS may be exposed to
civil or criminal contempt proceedings for failure to comply after being
requested to divulge such information by duly constituted authorities, or
when so requested by the Company.
Further, USBFS will adhere to the privacy policies adopted by the Trust
pursuant to Title V of the Xxxxx-Xxxxx-Xxxxxx Act, as may be modified from time
to time (the "Act"). Notwithstanding the foregoing, USBFS will not share any
nonpublic personal information concerning any of the Trust's shareholders with
any third party unless specifically directed by the Trust or allowed under one
of the exceptions noted under the Act.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by a duly authorized officer on one or more counterparts as of the day
and year first written above.
THE TOCQUEVILLE TRUST U.S. BANCORP FUND SERVICES, LLC
By:_________________________________ By:_________________________________
