Exhibit (h)(5)
AMENDED AND RESTATED
TRANSFER AGENT SERVICING AGREEMENT
THIS AGREEMENT is made and entered into as of this 12th day of January,
2005, by and between The Tocqueville Trust, a Massachusetts business trust and
The Tocqueville Alexis Trust, a Delaware statutory trust, severally and not
jointly, (each a "Trust" and together, the "Tocqueville Funds") and U.S. Bancorp
Fund Services, LLC, a Wisconsin limited liability company ("USBFS").
WHEREAS, the parties desire to add The Tocqueville Alexis Trust to the
Transfer Agent Servicng Agreement by and between the The Tocqueville Trust and
USBFS, dated September 12, 1997;
WHEREAS, The Tocqueville Trust, on behalf of The Tocqueville Gold Fund,
and USBFS have entered into a Transfer Agent Agreement, dated June 16, 1998,
(together with the Transfer Agent Agreement dated September 12, 1997, the "Prior
Agreements") and desire to consolidate the Prior Agreements;
WHEREAS, this Agreement amends and restates the Prior Agreements;
WHEREAS, the Tocqueville Funds engage in business as open-end management
investment companies and are so registered under the Investment Company Act of
1940, as amended (the "1940 Act"), with each such series of the Tocqueville
Funds representing interests in a separate portfolio of securities and other
assets;
WHEREAS, USBFS is, among other things, in the business of administering
transfer and dividend disbursing agent functions for the benefit of its
customers; and
WHEREAS, the Tocqueville Funds desire to retain USBFS to provide
transfer and dividend disbursing agent services to each series of the
Tocqueville Funds listed on Exhibit A hereto (as amended from time to time)
(each a "Fund").
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, and other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto, intending to be legally bound,
do hereby agree as follows:
1. Appointment of USBFS as Transfer Agent
The Tocqueville Funds hereby appoint USBFS as transfer agent of the
Tocqueville Funds on the terms and conditions set forth in this
Agreement, and USBFS hereby accepts such appointment and agrees to
perform the services and duties set forth in this Agreement.
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2. Services and Duties of USBFS
USBFS shall perform all of the customary services of a transfer agent
and dividend disbursing agent for the Funds, and, as relevant, 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 and process all orders for the purchase, exchange,
and/or redemption of shares in accordance with Rule 22c-1 of the
1940 Act.
B. Process purchase orders with prompt delivery, where appropriate,
of payment and supporting documentation to the Tocqueville
Funds' custodian, and issue the appropriate number of
uncertificated shares with such uncertificated shares being held
in the appropriate shareholder account.
C. Arrange for issuance of shares obtained through transfers of
funds from Fund shareholders' accounts at financial institutions
and arrange for the exchange of shares for shares of other
eligible investment companies, when permitted by each Fund's
current prospectus ("Prospectus").
D. Process redemption requests received in good order and, where
relevant, deliver appropriate documentation to the Tocqueville
Funds' custodian.
E. Pay monies upon receipt from the Tocqueville Funds' custodian,
where relevant, in accordance with the instructions of redeeming
shareholders.
F. Process transfers of shares in accordance with the shareholder's
instructions.
G. Process exchanges between Funds and/or classes of shares of
Funds both within the same family of funds and with a First
American Money Market Fund, if applicable.
H. Prepare and transmit payments for dividends and distributions
declared by the Tocqueville Funds with respect to each Fund,
after deducting any amount required to be withheld by any
applicable laws, rules and regulations and in accordance with
shareholder instructions.
I. Make changes to shareholder records, including, but not limited
to, address changes in plans (e.g., systematic withdrawal,
automatic investment, dividend reinvestment).
J. Record the issuance of shares of each Fund and maintain,
pursuant to Rule 17Ad-10(e) promulgated under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), a record
of the total number of shares of each Fund which are authorized,
issued and outstanding.
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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 Tocqueville Funds.
O. Mail requests for shareholders' certifications under penalties
of perjury and pay on a timely basis to the appropriate federal
authorities any taxes to be withheld on dividends and
distributions paid by the Tocqueville Funds, all as required by
applicable federal tax laws and regulations.
P. Provide a Blue Sky system that will enable the Tocqueville Funds
to monitor the total number of shares of each Fund sold in each
state. In addition, the Tocqueville Funds or its agent,
including USBFS, shall identify to USBFS in writing those
transactions and assets to be treated as exempt from the Blue
Sky reporting for each state. The responsibility of USBFS for
the Tocqueville Funds' Blue Sky state registration status is
solely limited to the initial compliance by the Tocqueville
Funds and the reporting of such transactions to the Tocqueville
Funds or its agent.
Q. Answer correspondence from shareholders, securities brokers and
others relating to USBFS's duties hereunder and such other
correspondence as may from time to time be mutually agreed upon
between USBFS and the Tocqueville Funds.
R. Reimburse each Fund each month for all material losses resulting
from "as of" processing errors for which USBFS is responsible in
accordance with the "as of" processing guidelines set forth on
Exhibit C hereto.
3. Representations of USBFS
USBFS represents and warrants to the Tocqueville Funds that:
A. It is a limited liability corporation duly organized, existing
and in good standing under the laws of Wisconsin;
B. It is a registered transfer agent under the Exchange Act.
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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 Act"), the
Exchange Act, the 1940 Act, and any laws, rules, and regulations
of governmental authorities having jurisdiction.
4. Representations of the Tocqueville Funds
The Tocqueville Funds represents and warrants to USBFS that:
A. The Tocqueville Funds are each series of open-end investment
companies under the 1940 Act;
B. The Tocqueville Trust and The Tocqueville Alexis Trust are each
business trusts organized, existing, and in good standing under
the laws of Massachusetts and Delaware, respectively;
C. The Tocqueville Funds are empowered under applicable laws and by
their Declarations of Trust and Bylaws to enter into and perform
this Agreement;
D. All necessary proceedings required by the Declarations of Trust
have been taken to authorize it to enter into and perform this
Agreement;
E. The Tocqueville Funds will comply with all applicable
requirements of the Securities Act, the Exchange Act, the 1940
Act, and any laws, rules and regulations of governmental
authorities having jurisdiction; and
F. A registration statement under the Securities Act will be made
effective and will remain effective, and appropriate state
securities law filings have been made and will continue to be
made, with respect to all shares of the Tocqueville Funds being
offered for sale.
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5. Compensation
USBFS shall be compensated for providing the services set forth in this
Agreement in accordance with the fee schedule set forth on Exhibit B
hereto (as amended from time to time). The Tocqueville Funds shall pay
all fees and reimbursable expenses within thirty (30) calendar days
following receipt of the billing notice, except for any fee or expense
subject to a good faith dispute. The Tocqueville Funds shall notify
USBFS in writing within thirty (30) calendar days following receipt of
each invoice if the Tocqueville Funds is disputing any amounts in good
faith. The Tocqueville Funds shall settle such disputed amounts within
ten (10) calendar days of the day on which the parties agree to the
amount to be paid. Notwithstanding anything to the contrary, amounts
owed by the Tocqueville Funds to USBFS, including under paragraph 10
hereunder, shall only be paid out of assets and property of the
particular Fund involved.
6. Indemnification; Limitation of Liability
A. USBFS shall exercise reasonable care in the performance of its
duties under this Agreement. USBFS shall not be liable for any
error of judgment or mistake of law or for any loss suffered by
the Tocqueville Funds in connection with matters to which this
Agreement relates, including losses resulting from mechanical
breakdowns or the failure of communication or power supplies
beyond USBFS's control, except a loss arising out of or relating
to USBFS'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, if USBFS has exercised reasonable care in the
performance of its duties under this Agreement, each Tocqueville
Fund shall indemnify and hold harmless, severally and not
jointly, USBFS from and against any and all claims, demands,
losses, expenses, and liabilities of any and every nature
(including reasonable attorneys' fees) which USBFS may sustain
or incur or which may be asserted against USBFS by any person
arising out of any action taken or omitted to be taken by it in
performing the services hereunder, except for any and all
claims, demands, losses, expenses, and liabilities arising out
of or relating to USBFS's refusal or failure to comply with the
terms of this Agreement or from bad faith, negligence or from
willful misconduct on its part in performance of its duties
under this Agreement, (i) in accordance with the foregoing
standards, or (ii) in reliance upon any written or oral
instruction provided to USBFS by any duly authorized officer of
the Tocqueville Funds, such duly authorized officer to be
included in a list of authorized officers furnished to USBFS and
as amended from time to time in writing by resolution of the
Boards of Trustees of the Tocqueville Funds (the "Boards of
Trustees" or "Trustees").
USBFS shall indemnify and hold the Tocqueville Funds harmless
from and against any and all claims, demands, losses, expenses,
and liabilities of any and every nature (including reasonable
attorneys' fees) that the Tocqueville Funds
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may sustain or incur or that may be asserted against the
Tocqueville Funds by any person arising out of any action taken
or omitted to be taken by USBFS as a result of USBFS's refusal
or failure to comply with the terms of this Agreement, its bad
faith, negligence, or willful misconduct.
In the event of a mechanical breakdown or failure of
communication or power supplies beyond its control, USBFS shall
take all reasonable steps to minimize service interruptions for
any period that such interruption continues beyond USBFS's
control. USBFS 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 USBFS. USBFS 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 Tocqueville Funds
shall be entitled to inspect USBFS's premises and operating
capabilities at any time during regular business hours of USBFS,
upon reasonable notice to USBFS.
Notwithstanding the above, USBFS reserves the right to reprocess
and correct administrative errors at its own expense.
B. In order that the indemnification provisions contained in this
section shall apply, it is understood that if in any case the
indemnitor may be asked to indemnify or hold the indemnitee
harmless, the indemnitor shall be fully and promptly advised of
all pertinent facts concerning the situation in question, and it
is further understood that the indemnitee will use all
reasonable care to notify the indemnitor promptly concerning any
situation that presents or appears likely to present the
probability of a claim for indemnification. The indemnitor shall
have the option to defend the indemnitee against any claim that
may be the subject of this indemnification. In the event that
the indemnitor so elects, it will so notify the indemnitee and
thereupon the indemnitor shall take over complete defense of the
claim, and the indemnitee shall in such situation initiate no
further legal or other expenses for which it shall seek
indemnification under this section. The indemnitee shall in no
case confess any claim or make any compromise in any case in
which the indemnitor will be asked to indemnify the indemnitee
except with the indemnitor's prior written consent.
The provisions of this paragraph 6 shall survive termination of
this Agreement.
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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
Tocqueville Funds all records and other information relative to the
Tocqueville Funds and prior, present, or potential shareholders (and
clients of said shareholders), including information relating to the
Funds' portfolio holdings, 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 Tocqueville Funds, 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 Tocqueville Funds. USBFS may
not, and shall ensure that all employees with access to portfolio
holdings information do not place any trades based on such information.
Further, USBFS will adhere to the privacy policies adopted by the
Tocqueville Funds 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 Tocqueville Funds' shareholders with any third
party unless specifically directed by the Tocqueville Funds or allowed
under one of the exceptions noted under the Act. USBFS further
represents and agrees that it maintains and will continue to maintain
(a) policies and procedures designed to ensure only necessary access to
and use of information about shareholders of the Tocqueville Funds and
(b) safeguards that comply with federal standards to guard nonpublic
personal information concerning the shareholders of the Tocqueville
Funds.
The provisions of this paragraph 7 shall survive termination of this
Agreement.
8. Anti-Money Laundering Program
The Tocqueville Funds acknowledge that they have had an opportunity to
review, consider and comment upon the procedures provided by USBFS
describing various tools designed to promote the detection and reporting
of potential money laundering activity by monitoring certain aspects of
shareholder activity (the "Monitoring Procedures") as well as written
procedures for verifying a customer's identity (the "Customer
Identification Procedures"), together referred to as the "Procedures,"
and the Tocqueville Funds have determined that the Procedures, as part
of the Tocqueville Funds' overall anti-money laundering program, are
reasonably designed to prevent any Fund from being used for money
laundering or the financing of terrorist activities and to achieve
compliance with the applicable provision of the Bank Secrecy Act and the
implementing regulations thereunder.
Based on this determination, the Tocqueville Funds hereby instruct and
direct USBFS to implement the Procedures on the Tocqueville Funds'
behalf, as such may be amended or
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revised from time to time.
It is contemplated that these Procedures will be amended from time to
time by the parties as additional regulations are adopted and/or
regulatory guidance is provided relating to the Tocqueville Funds'
anti-money laundering responsibilities.
USBFS agrees to provide to the Tocqueville Funds:
(a)Prompt written notification of any transaction or combination of
transactions that USBFS believes, based on the Procedures, evidence
money laundering activity in connection with the Tocqueville Funds or
any shareholder of each Fund;
(b)Prompt written notification of any customer(s) that USBFS reasonably
believes, based upon the Procedures, to be engaged in money
laundering activity, provided that the Tocqueville Funds agree not to
communicate this information to the customer;
(c)Any reports received by USBFS from any government agency or
applicable industry self-regulatory organization pertaining to
USBFS's anti-money laundering monitoring on behalf of the Tocqueville
Funds;
(d)Prompt written notification of any action taken in response to
anti-money laundering violations as described in (a), (b) or (c); and
(e)A certified annual report of its monitoring and customer
identification activities on behalf of the Tocqueville Funds. USBFS
shall provide such other reports on the monitoring and customer
identification activities conducted at the direction of the
Tocqueville Funds as may be agreed to from time to time by USBFS and
the Tocqueville Funds.
The Tocqueville Funds hereby direct, and USBFS acknowledges, that USBFS
shall (i) permit federal regulators access to such information and
records maintained by USBFS and relating to USBFS's implementation of
the Procedures on behalf of the Tocqueville Funds, as they may request,
and (ii) permit such federal regulators to inspect USBFS's
implementation of the Procedures on behalf of the Tocqueville Funds.
9. Term of Agreement; Amendment
This Agreement shall become effective on February 28, 2005 and will
continue automatically in effect for successive annual periods, unless
otherwise terminated as provided herein. This Agreement may be
terminated by either party upon giving ninety (90) days prior written
notice to the other party or such shorter period as is mutually agreed
upon by the parties. However, this Agreement may be amended by mutual
written consent of the parties. The termination of this Agreement with
respect to any one Trust will not cause the Agreement's termination with
respect to any other Trust.
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10. Duties in the Event of Termination
In the event that, in connection with termination, a successor to any of
USBFS's duties or responsibilities hereunder is designated by the
Tocqueville Funds by written notice to USBFS, USBFS will promptly, upon
such termination and at the expense of the Tocqueville Funds, transfer
to such successor all relevant books, records, correspondence, and other
data established or maintained by USBFS under this Agreement in a form
reasonably acceptable to the Tocqueville Funds (if such form differs
from the form in which USBFS has maintained, the Tocqueville Funds shall
pay any expenses associated with transferring the data to such form),
and will cooperate in the transfer of such duties and responsibilities,
including provision for assistance from USBFS's personnel in the
establishment of books, records, and other data by such successor.
11. Records
USBFS 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 Tocqueville Funds, but not
inconsistent with the rules and regulations of appropriate government
authorities, in particular, Section 31 of the 1940 Act and the rules
thereunder. USBFS agrees that all such records prepared or maintained by
USBFS relating to the services to be performed by USBFS hereunder are
the property of the Tocqueville Funds and will be preserved, maintained,
and made available in accordance with such applicable sections and rules
of the 1940 Act and will be promptly surrendered to the Tocqueville
Funds on and in accordance with its request. Further, federal examiners
shall have access to information and records relating to anti-money
laundering activities performed by USBFS hereunder and USBFS consents to
any inspection authorized by law or regulation in connection thereof.
12. Governing Law
This Agreement shall be construed in accordance with the laws of the
State of Wisconsin, without regard to conflicts of law principles. To
the extent that the applicable laws of the State of Wisconsin, or any of
the provisions herein, conflict with the applicable provisions of the
1940 Act, the latter shall control, and nothing herein shall be
construed in a manner inconsistent with the 1940 Act or any rule or
order of the Securities and Exchange Commission thereunder.
13. Data Necessary to Perform Services
The Tocqueville Funds or its agent, which may be USBFS, shall furnish to
USBFS the data necessary to perform the services described herein at
such times and in such form as mutually agreed upon. If USBFS is also
acting in another capacity for the Tocqueville Funds, nothing herein
shall be deemed to relieve USBFS of any of its obligations in such
capacity.
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14. Assignment
This Agreement may not be assigned by either party without the prior
written consent of the other party.
15. Notices
Any notice required or permitted to be given by either party to the
other shall be in writing and shall be deemed to have been given on the
date delivered personally or by courier service, or three (3) days after
sent by registered or certified mail, postage prepaid, return receipt
requested, or on the date sent and confirmed received by facsimile
transmission to the other party's address set forth below:
Notice to USBFS shall be sent to:
U.S. Bancorp Fund Services, LLC
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
and notice to the Tocqueville Funds shall be sent to:
The Tocqueville Trust and The Tocqueville Alexis Trust
00 Xxxx 00xx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
16. Several, Not Joint Obligations.
The obligations of each Trust hereunder are several, not joint, and no
Trust shall be liable or responsible for the obligations of another
Trust under this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by a duly authorized officer on one or more counterparts as of the date
first above written.
THE TOCQUEVILLE ALEXIS TRUST U.S. BANCORP FUND SERVICES, LLC
By: /s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxx X. Xxxxxxx
--------------------------- ---------------------------
Title: President Title: President
------------------------ -------------------------
THE TOCQUEVILLE TRUST
By: /s/ Xxxxxx X. Xxxxxxxxxxxx
---------------------------
Title: President
------------------------
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Exhibit A
to the
Transfer Agent Servicing Agreement
Fund Names
Each a Separate Series of
The Tocqueville Trust or The Tocqueville Alexis Trust
Name of Series Date Added
-------------- ----------
The Tocqueville Trust
---------------------
The Tocqueville Fund
The Tocqueville Small Cap Value Fund
The Tocqueville International Value Fund
The Tocqueville Gold Fund
The Tocqueville Genesis Fund
The Tocqueville Alexis Trust
----------------------------
The Tocqueville Alexis Fund
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Exhibit B
to the
Transfer Agent Servicing Agreement
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TRANSFER AGENT & SHAREHOLDER SERVICES
ANNUAL FEE SCHEDULE
Tocqueville Funds
(Effective for a period of three (3) years from date of the Agreement)
----------------------------------------------------------------------------------------------------------
Service Charges to the Complex Service Charges to Investors
------------------------------ ----------------------------
Shareholder Account Fee Qualified Plan Fees (Billed to Investors)
$15.00/qualified plan acct (Cap at $30.00/SSN)
Tocqueville Fund, Tocqueville Small $15.00/Xxxxxxxxx ESA acct (Cap at $30.00/SSN)
Cap Value, Tocqueville International $25.00/transfer to successor trustee
Value, Tocqueville Gold, Tocqueville $25.00/participant distribution (Excluding SWPs)
Genesis, and Tocqueville Alexis $25.00 /refund of excess contribution
Additional Shareholder Fees (Billed to Investors)
$13.00 per open account $15.00/outgoing wire transfer
$ 9.00 per network level 3 account $15.00/overnight delivery
$ 2.50 per closed account $ 5.00/telephone exchange
(Subject to $144,000 complex minimum $25.00/return check or ACH
for 6 Funds) $25.00/stop payment
$ 5.00/research request per account (Cap at
Activity Charges $25.00/request) (For requested items of the second
---------------- calendar year [or previous] to the request)
Telephone Calls - $1.50/call
Daily Valuation Trades - $6.75/trade
Lost Shareholder Search - $5.00/search
AML Base Service - Technology Charges
5,000 - 9999 Accounts - $2,500/year ------------------
New Account Service - $1.00/new 1. Fund Setup - $1,500/CUSIP
domestic accounts and $2.00/new foreign 2. NSCC Service Interface - All NSCC Services
account Setup - $1,500/fund group
Shareholder Verification - $0.25/each Annual - $1,400/CUSIP/year
ACH/EFT Shareholder Services: 3. Telecommunications and Voice Services
$125.00/month/fund group Service Setup - $1,650 ATT transfer connect
$ .50/ACH item, setup, change VRU Setup - $500/fund group
$ 5.00/correction, reversal VRU Maintenance - $100/CUSIP/month
$.35 /voice response call
Out-of-pocket Costs - Including but not limited $.40 /voice recognition call
------------------- 4. Average Cost - $.36/account/year
to: 5. Development/Programming - $150/hour
Telephone toll-free lines, call transfers, 6. File Transmissions - subject to requirements
etc. 7. Selects - $300 per select
Mailing, sorting and postage 8. Extraordinary services - charged as incurred
Stationery, envelopes Conversion of Records (if necessary) -
Programming, special reports Estimate to be provided.
Insurance, record retention, microfilm/ Custom processing, re-processing
fiche
Proxies, proxy services All other extraordinary services
ACH fees, NSCC charges Fees are billed monthly.
All other out-of-pocket expenses
----------------------------------------------------------------------------------------------------------
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Exhibit C
to the
Transfer Agent Servicing Agreement
As Of Processing Policy
USBFS will reimburse each Fund for any net material loss that may exist
on the Fund's books and for which USBFS is responsible, at the end of each
calendar month. "Net Material Loss" shall be defined as any remaining loss,
after netting losses against any gains, which impacts a Fund's net asset value
per share by more than 1/2 cent. Gains and losses will be reflected on the
Fund's daily share sheet, and the Fund will be reimbursed for any net material
loss on a monthly basis. USBFS will reset the as of ledger each calendar month
so that any losses which do not exceed the materiality threshold of 1/2 cent
will not be carried forward to the next succeeding month. USBFS will notify the
advisor to the Fund on the daily share sheet of any losses for which the advisor
may be held accountable.
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