DISTRIBUTION AGREEMENT
between
THE TOCQUEVILLE ALEXIS TRUST
and
LEPERCQ, DE NEUFLIZE/TOCQUEVILLE SECURITIES L.P.
THIS AGREEMENT made this 28th day of February, 2003, by and between
THE TOCQUEVILLE ALEXIS TRUST, a Delaware statutory trust on behalf of its
series, TOCQUEVILLE ALEX FUND (hereinafter referred to as the "Fund"), and
LEPERCQ, DE NEUFLIZE/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. 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 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.
FOURTH: Upon receipt by the Fund of an order from the Distributor,
together with delivery instructions, the Fund shall, as promptly as practicable,
cause 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.
FIFTH: 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.
SIXTH: 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.
SEVENTH: 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
(B) all legal expenses in connection with the foregoing.
EIGHTH: 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 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 Distributor in
connection with such public offering;
NINTH: For the services provided pursuant to this Agreement the Fund
will pay to the Distributor a fee, payable monthly in arrears, at the annual
rate equal to 0.25% of the Fund's average daily net assets, provided that such
fee shall be reduced to the extent necessary to result in the Fund's expense
ratio not exceeding the Expense Cap. The Expense Cap shall
equal 1.294%, provided that at any time the Fund's average daily net asset value
during the prior 30 day period is less than $60 million, the Expense Cap would
equal the product of 1.294% multiplied by a fraction the numerator of which is
the sum of $60 million plus the excess of $60 million over the Fund's average
daily net asset value during the prior 30 day period and denominator of which is
$60 million).
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 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 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 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) 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.
SEVENTEENTH: 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.
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 ALEXIS FUND
/s/Xxxxx Xxxxx By:/s/Xxxxx X. Xxxxxxxxx
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Secretary/Treasurer President
ATTEST: LEPERCQ, DE NEUFLIZE /TOCQUEVILLE
SECURITIES L.P.
/s/Xxxxx Xxxxx By:/s/Xxxxxx X. Xxxxxxxxxxxx
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Secretary President
