Exhibit (e)
DISTRIBUTION AGREEMENT
between
THE TOCQUEVILLE TRUST
and
LEPERCQ, DE NEUFLIZE/TOCQUEVILLE SECURITIES, L.P.
(amended as of September 30, 2003)
WHEREAS, The Tocqueville Trust, a Massachusetts business trust (the
"Trust") and Lepercq, de Neuflize/Tocqueville Securities, L.P. (the
"Distributor") had originally entered into this Distribution Agreement (the
"Agreement") on March 1, 1991, as amended on September 30, 2002; and
WHEREAS, the parties desire to amend this Agreement in order to
reflect the addition of The Tocqueville Genesis Fund, a new series of the Trust;
and
WHEREAS, the Board of Trustees of the Trust has approved the
amendment of this Agreement.
W I T N E S S E T H:
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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 Trust hereby appoints the Distributor as its underwriter
to promote the sale and to arrange for the sale of shares of beneficial interest
of each series of the Trust as set forth in Exhibit A (each series is referred
to as a "Portfolio") to the
public through its sales representatives and to investment dealers. The Trust
and the Distributor will cooperate with each other in taking such action as may
be necessary to qualify shares of the Trust's shares of beneficial interest for
sale under the securities laws of such states as the Trust and the Distributor
may designate, provided, that the Distributor shall not be required to register
as a broker-dealer or file a consent to service of process in any such state
where it is not now so registered. The Distributor will receive, with respect to
The Tocqueville Genesis Fund series of the Trust, a sales charge, as described
in the Trust's most recent prospectus filed with the Securities and Exchange
Commission ("SEC"). In addition, the Distributor may receive payment for certain
distribution expenses pursuant to a Rule 12b-l distribution plan.
The Trust 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 Trust hereby authorizes the Distributor, subject to law
and the Declaration of Trust of the Trust, to accept, for the account of the
Trust, 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 Trust.
Third: The Trust will determine the net asset value of the shares of
each Portfolio once daily as of the close of regular 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, Xx. Xxxxxx Xxxxxx Xxxx, Xx. Day, Presidents' Day, Good Friday,
Memorial Day, Independence Day, Labor Day,
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Thanksgiving Day and Christmas Day. The net asset value is determined by
dividing the market value of a Portfolio'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 shares outstanding in such Portfolio. Securities held by a Portfolio
are valued in accordance with procedures established by the Board of Trustees of
the Trust, as described in the Prospectus.
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 Trust 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 Trust
reserves the right to issue shares in connection with any merger or
consolidation of the Trust 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 (the "1940 Act").
Fifth: Upon receipt by the Trust at its principal place of business
of a written order from the Distributor, together with delivery instructions,
the Trust 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 Trust.
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Sixth: All sales literature and advertisements used by the
Distributor in connection with sales of the shares of the Trust shall be subject
to the approval of the Trust. The Trust 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 Trust or in such financial
statements and reports as are furnished to the Distributor pursuant to this
Agreement. The Trust 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 Trust is authorized,
subject to the direction of the Trust, to accept shares of the Portfolios for
redemption at their net asset value, determined as prescribed in the then
current Prospectus of the Trust.
Eighth: The Trust 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 Trust that it does not wish such qualification continued; and
(B) all legal expenses in connection with the foregoing.
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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 Trust 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; and
(B) expenses of any advertising used by the Distributor in
connection with such public offering.
Tenth: The Distributor will accept orders for shares of the
Portfolios 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 Trust 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 Trust 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.
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Twelfth: The Trust agrees to register, from time to time as
necessary, additional shares with the SEC, 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 Trust with the SEC and
effective under the Securities Act of 1933 (the "1933 Act"), 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 Trust and the Distributor shall each comply with all
applicable provisions of the 1940 Act, the 1933 Act, and of all other federal
and state laws, rules and regulations governing the issuance and sale of shares
of the Trust.
(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 Trust agrees to indemnify the Distributor against any and all
claims, demands, liabilities and expenses which the Distributor may incur under
the 1933 Act, or common law or otherwise, arising out of or based upon any
alleged untrue statement of a material fact
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contained in any registration statement, statement of additional information or
prospectus of the Trust, 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 Trust in connection therewith by or on behalf of
the Distributor. The Distributor agrees to indemnify the Trust against any and
all claims, demands, liabilities and expenses which the Trust 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 Trust against any and
all claims, demands, liabilities and expenses which the Trust may incur under
the 1933 Act, 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 Trust, 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 Trust in connection therewith by
or on behalf of the Distributor.
Fourteenth: Nothing herein contained shall require the Trust 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
Trust and shall remain in effect until September 30, 2004, and shall continue in
force and effect for successive annual periods thereafter, provided that such
continuance is
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specifically approved at least annually (a) (i) by the Board of Trustees of the
Trust, or (ii) by vote of a majority of the Trust's outstanding voting
securities (as defined in Section 2(a)(42) of the 1940 Act), and (b) by vote of
a majority of the Trust's Trustees who are not interested persons (as defined in
Section 2(a)(19) of the 0000 Xxx) of the Trust or 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 Trust 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 Trust.
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
Trust or by vote of a majority of the outstanding voting securities of the
Trust, 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 1940 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
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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 Trust 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 on September 30, 2003.
ATTEST: THE TOCQUEVILLE TRUST
By:/s/ Xxxxxx X. Xxxxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxxxx
Title: President
ATTEST: LEPERCQ, DE NEUFLIZE/ TOCQUEVILLE
SECURITIES, L.P.
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By:/s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Chief Operating Officer
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EXHIBIT A
The Tocqueville Fund
The Tocqueville International Value Fund
The Tocqueville Small Cap Value Fund
The Tocqueville Gold Fund
The Tocqueville Genesis Fund
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