Investment Advisory Agreement
THE TOCQUEVILLE ALEXIS TRUST
and
THE TOCQUEVILLE ALEXIS FUND
As of June 24, 2002
Tocqueville Asset Management L.P.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
The Tocqueville Alexis Trust (the "Trust") has been organized as a business
trust under the laws of the State of Delaware to engage in the business of an
investment company. The Trust's shares of beneficial interest may be classified
into series, each series representing the entire undivided interest in a
separate portfolio of assets. As of the date hereof, the Trust has one series of
shares, representing interests in The Tocqueville Alexis Fund (the "Fund").
The Trustees of the Trust (the "Trustees") have selected you to provide
investment advice to the Fund, as more fully set forth below, and you are
willing to provide such advice under the terms and conditions hereinafter set
forth. Accordingly, the Trust agrees with you as follows:
1. Delivery of Documents. The Trust has furnished you with copies,
properly certified or otherwise authenticated, of each of the following:
(a) Agreement and Declaration of Trust of the Trust, dated as of
March 17, 1994 (the "Declaration").
(b) By-Laws of the Trust as in effect on the date hereof.
(c) Resolution of the Trustees selecting you as investment adviser
for the Fund and approving the form of this Agreement.
(d) Commitments, limitations and undertakings made by the Trust to
state "blue sky" authorities for the purpose of qualifying shares
of the Trust representing beneficial interests in the Fund (the
"Shares") for sale in such states.
(e) Post-Effective Amendment No. 13 to the Trust's Registration
Statement on Form N-1A, dated February 26, 2002, registering the
Shares under the Securities Act of 1933, as amended, together
with all exhibits and
amendments thereto (the "N-1A Registration Statement").
The Trust will furnish you from time to time with copies, properly certified or
otherwise authenticated, of all amendments of or supplements to the foregoing,
if any.
2. Investment Advisory Services. You will use your best efforts to
provide to the Fund continuing and suitable investment programs consistent with
the investment objective, policies and restrictions of the Fund. In the
performance of your duties hereunder, subject always (x) to the provisions
contained in the documents delivered to you pursuant to Section 1 as each of the
same may from time to time be amended or supplemented and (y) to the limitations
set forth in the N-1A Registration Statement as in effect from time to time, as
amended, you will, at your expense:
(a) determine from time to time which securities shall be purchased,
sold or exchanged and what portion of the assets of the Fund
shall be held in the various securities and assets in which the
Fund invests or in cash;
(b) make decisions for the Fund with respect to foreign currency
matters and foreign exchange contracts, having regard to foreign
exchange controls, if any;
(c) make determinations as to the manner in which voting rights,
subscription rights, rights to consent to corporate action and
any other rights pertaining to the Fund's assets shall be
exercised;
(d) advise the Trust in connection with policy decisions to be made
by the Trustees or any committee thereof with respect to the
Fund's investments and, as requested, furnish the Fund with
research, economic and statistical data in connection with its
investments and investment policies;
(e) submit such reports relating to the valuation of the Fund's
securities as the Trustees or the administrator of the Fund may
reasonably request;
(f) place orders for the purchase, sale or exchange of portfolio
assets for the Fund's accounts with brokers or dealers selected
by you; provided, however, that in connection with the placing of
such orders and the selection of such brokers or dealers you
shall seek to obtain execution and pricing within the policy
guidelines established by the Trustees and set forth in the N-1A
Registration Statement as in effect from time to time;
(g) provide information in your possession to the administrator of
the Fund as such administrator may request to maintain and
preserve the records required by the Investment Company Act of
1940, as amended (the "Investment Company Act");
(h) obtain and evaluate such information relating to economies,
industries, businesses, securities markets and securities as you
may deem necessary or useful in the discharge of your duties
hereunder;
(i) from time to time, or at any time requested by the Trustees, make
reports to the Trustees concerning your performance of the
foregoing services and furnish advice and recommendations with
respect to other aspects of the business and affairs of the Fund;
and
(j) cooperate generally with the Trust and the Fund to provide
information necessary for the preparation of registration
statements and periodic reports to be filed with the Securities
and Exchange Commission, including post-effective amendments to
the Form N-1A Registration Statement, filings on Form N-SAR,
periodic statements, reports to shareholders, shareholder
communications and proxy material furnished to holders of the
Shares, filings with state "blue sky" authorities and with the
United States agencies responsible for tax matters, and other
reports and filings of like nature.
3. Expenses of the Fund. You will pay for maintaining the staff and
personnel necessary to perform your obligations under this Agreement and shall,
at your own expense, maintain the office space, facilities, equipment and
personnel that are reasonably necessary to carry out your obligations hereunder.
In addition, you shall pay the reasonable salaries, fees and expenses of such of
the Trust's officers and employees (including payroll taxes) and any fees and
expenses of such of the Trustees as are directors, officers or employees of you.
4. Expenses of the Trust or the Fund Not Paid by You. You will not be
required to pay any expenses which this Agreement does not expressly make
payable by you. In particular, and without limiting the generality of the
foregoing but subject to the provisions of Section 3, the Trust and the Fund
assume and shall pay or cause to be paid fees to you and the administrator of
the Trust and the Fund and all other expenses of the Trust and the Fund
including, without limitation: (i) charges and expenses of any custodian,
subcustodian or depositary appointed by the Trust or the Fund for the
safekeeping of cash, securities or property and fees and expenses of any
transfer agent, dividend paying agent and registrar for the Fund; (ii) charges
and expenses of accounting and auditing; (iii) expenses and fees associated with
registering and qualifying securities issued by the Trust and the Fund for sale
with the Securities and Exchange Commission
and in various states, expenses of preparing Share certificates, if any, and
other expenses in connection with the issuance, offering or distribution of
securities issued by the Trust and the Fund, including freight insurance and
other charges in connection with the shipment of the Fund's portfolio
securities; (iv) expenses and fees associated with obtaining an order pursuant
to Section 17(b) of the Investment Company Act authorizing certain transactions;
(v) expenses of stationery, preparing, printing and distributing reports,
notices and dividends and other documents to the Fund's shareholders, including,
without limitation, to the extent not borne by the Fund's administrator,
distributor or transfer agent; (vi) interest on any indebtedness of the Fund;
(vii) governmental fees and taxes of the Trust and the Fund, including any stock
transfer tax payable on a portfolio security of the Fund; (viii) brokerage
commissions and other expenses incurred in acquiring or disposing of the Fund's
portfolio securities; (ix) costs of trustees' and officers' insurance and
fidelity bonds; (x) compensation and expenses of the Trustees who are not
interested persons of you, including out-of-pocket travel expenses; (xi) costs
and expenses incidental to holding meetings of the Trustees, or any committees
thereof, or meetings of shareholders; (xii) fees for legal, auditing and
consulting services and litigation expenses, including settlement or arbitration
costs; (xiii) dues and expenses incurred in connection with membership in
investment company organizations and expenses relating to investor and public
relations; and (xiv) costs, expenses and fees incurred in connection with
obtaining, maintaining, refinancing or repaying indebtedness.
5. Compensation of the Adviser. For all services to be rendered,
facilities furnished and expenses paid or assumed by you as herein provided, the
Trust will pay you, on behalf of the Fund, an investment advisory fee, which
shall accrue daily and be payable monthly in arrears, calculated at an annual
rate of 0.60% of the Fund's average daily net assets.
If this Agreement becomes effective subsequent to the first day of a month
or shall terminate before the last day of a month, compensation for that part of
the month that this Agreement is in effect shall be subject to a pro rata
adjustment based on the number of days elapsed in the relevant month as a
percentage of the total number of days in such month in order to permit the fee
to be calculated in a manner consistent with the calculation of the fee as set
forth above. During any period when the determination of net asset value is
suspended by the Trustees, the average net asset value of a Share for the last
day prior to such suspension shall for this purpose be deemed to be the average
net asset value at the close of each succeeding day until it is again
determined.
In the event the operating expenses of the Fund, including amounts payable
to you pursuant to this Section 5, for any fiscal year of the Fund ending on a
date on which this Agreement is in effect, exceed the expense limitations
applicable to the Fund imposed by applicable state securities laws or
regulations thereunder, as such limitations may be raised or lowered from time
to time, you shall reduce your management fee by the extent of such excess and,
if required pursuant to any such laws or regulations, will reimburse the Fund in
the amount of such excess; provided, however, to the extent permitted by law,
there shall be excluded from such expenses the amount of any interest, taxes,
brokerage commissions and extraordinary expenses (including but not limited to
legal claims and liabilities and litigation costs, including settlement or
arbitration costs, and any indemnification related thereto) paid or payable by
the Fund. Whenever the expenses
of the Fund exceed a pro rata portion of the applicable annual expense
limitations, the estimated amount of reimbursement under such limitations shall
be applicable as an offset against the monthly payment of the management fee due
to you. Should two or more such expense limitations be applicable as at the end
of the last business day of the month, that expense limitation which results in
the largest reduction in your fee shall be applicable.
The net asset value of the Fund shall be determined pursuant to the
applicable provisions of the Trust's Declaration of Trust and applicable law,
and as described in the N-1A Registration Statement, as such registration
statement may be amended from time to time.
6. Other Activities of Adviser and Its Affiliates. Nothing herein
contained shall prevent you or any affiliate or associate of yours from engaging
in any other business or from acting as investment adviser or investment manager
for any other person or entity, whether or not having investment policies or
portfolios similar to that of the Fund; and it is specifically understood that
officers, directors, and employees of yours and of your subsidiaries, if any,
may continue to engage in providing portfolio management services and advice to
other investment companies, whether or not registered, and to other investment
advisory clients of yours.
7. Avoidance of Inconsistent Position. In connection with purchases or
sales of portfolio securities for the account of the Fund, neither you nor any
of your directors, officers or employees will act as principal or agent or
receive any commission. If any occasion should arise in which you advise persons
concerning the Shares, you will act solely on your own behalf and not in any way
on behalf of the Trust or the Fund.
8. No Partnership or Joint Venture. The Trust, the Fund and you are not
partners of or joint venturers with each other and nothing herein shall be
construed so as to make them such partners or joint venturers or impose any
liability as such on any of them.
9. Name of Trust and Fund. The Trust and the Fund may use the name
"Tocqueville" or any name derived from or similar to the name "Tocqueville Asset
Management L.P." only for so long as this Agreement or any extension, renewal,
or amendment hereof remains in effect. At such time as such Agreement shall no
longer be in effect, the Trust and the Fund will (to the extent they lawfully
can) cease to use such a name or any other name indicating that the Fund is
advised or they are otherwise connected with you. The Trust acknowledges that it
has adopted the name "The Tocqueville Alexis Trust," and the Fund has adopted
the name "The Tocqueville Alexis Fund," through permission of Tocqueville Asset
Management L.P., [a Delaware limited partnership], and agrees that Tocqueville
Asset Management L.P. reserves to itself and any successor to its business the
right to grant the non-exclusive right to use the name "Tocqueville" or any
similar name to any other corporation or entity, including but not limited to
any investment company of which Tocqueville Asset Management L.P., or any
subsidiary or affiliate thereof or any successor to the business of any thereof
shall be the investment adviser.
10. Limitation of Liability of Adviser. You shall not be liable for any
error of judgment or mistake of law or for any loss suffered by the Trust or the
Fund in connection with the matters to which this Agreement relates if such
actions by you were performed in good faith and were reasonably believed by you
to be in or not opposed to the best interests of the Trust or Fund, as the case
may be, except a loss resulting from willful misfeasance, bad faith or gross
negligence on your part in the performance of your duties or from reckless
disregard by you of your obligations and duties under this Agreement. Any
person, even though also employed by you, who may be or become an employee of
and paid by the Trust or the Fund shall be deemed, when acting within the scope
of his employment by the Trust or the Fund, to be acting in such employment
solely for the Trust or the Fund and not as your employee or agent.
You shall not be liable for any losses caused by disturbances of your
operations by virtue of force majeure, war, riot, or damage caused by nature or
due to other events for which you are not responsible (e.g., strike, lock-out or
losses caused by the imposition of foreign exchange controls, expropriation of
assets or other acts of domestic or foreign authorities).
The presence of exculpatory language in this Agreement shall not be deemed
by the Trust, the Fund, you or any other party appointed pursuant to this
Agreement, including without limitation any custodian, as in any way limiting
causes of action and remedies which may, notwithstanding such language, be
available to the Trust or Fund either under common law or statutory law
principles applicable to fiduciary relationships or under the federal securities
laws.
11. Duration and Termination of this Agreement. This Agreement shall
remain in force until the second anniversary of the date upon which this
Agreement was executed by the parties hereto, and from year to year thereafter,
but only so long as such continuance is specifically approved at least annually
by (a) a majority of the Trustees who are not interested persons of you or
(other than as Trustees) of the Trust, cast in person at a meeting called for
the purpose of voting on such approval, and (b) either (i) the Trustees or (ii)
a majority of the outstanding voting securities of the Fund. This Agreement may,
on 60 days' written notice, be terminated at any time by the Trustees without
the payment of any penalty by the Trust or the Fund, by vote of a majority of
the outstanding voting securities of the Fund, or by you. Termination of this
Agreement with respect to the Fund shall not be deemed to terminate or otherwise
invalidate any provision of any contract between you and any other series of the
Trust. This Agreement shall automatically terminate in the event of its
assignment. In interpreting the provisions of this Section 11, the definitions
contained in Section 2(a) of the Investment Company Act (particularly the
definitions of "assignment", "interested person" and "voting security") shall be
applied.
12. Amendment of This Agreement. No provision of this Agreement may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought, and no amendment, transfer, assignment,
sale, hypothecation or pledge of this Agreement shall be effective until
approved by (a) the Trustees, including a majority of the Trustees who are not
interested persons of you or (other than as Trustees) of the Trust cast in
person at a meeting called for the purpose of voting on such approval,
and (b) a majority of the outstanding voting securities of the Fund, as defined
in the Investment Company Act, provided that no approval shall be required
pursuant to this clause (b) in respect of any contract between you and the
holders of outstanding voting securities of any other series of the Trust other
than the Fund.
13. Notice. Any notice or other communication required to be given
pursuant to this Agreement shall be in writing or by fax, with hard copy to
follow, and shall be effective upon receipt. Notices and communications shall be
given: (a) to the Trust and the Fund c/o Tocqueville Asset Management L.P., 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X. Xxxxxxxxx and (b) to you
at the same address.
14. Governing Law. This Agreement shall be construed in accordance with
the laws of the State of New York and the applicable provisions of the
Investment Company Act. To the extent the applicable laws of the State of New
York, or any of the provisions herein, conflict with the applicable provisions
of the Investment Company Act, the latter shall control.
15. Miscellaneous. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. This
Agreement may be executed simultaneously in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument. The obligations of the Trust or the Fund are not
binding upon any of the Trustees, shareholders, officers, employees or agents of
the Trust individually, but only upon the assets and property of the Fund.
Yours very truly,
THE TOCQUEVILLE ALEXIS TRUST,
for itself and its initial series,
The Tocqueville Alexis Fund
By
/s/Xxxxx X. Xxxxxxxxx
--------------------------------
Xxxxx X. Xxxxxxxxx
President
The foregoing Agreement
is hereby agreed to as of
the date hereof.
TOCQUEVILLE ASSET MANAGEMENT L.P.
By: Tocqueville Management Corporation,
its general partner
By: /s/Xxxxxx X. Xxxxxxxxxxxx
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Name:
