Exhibit (h)(2)
TRANSFER AGENT SERVICING AGREEMENT
THIS AGREEMENT is made and entered into as of this ___ day of
_______, 2004, by and between The Tocqueville Trust, a Massachusetts business
trust, The Tocqueville Alexis Trust, a Delaware statutory trust, (together,
the "Tocqueville Funds") and U.S. Bancorp Fund Services, LLC, a Wisconsin
limited liability company ("USBFS").
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.
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.
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.
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.
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. With the
exception of any fee or expense the Tocqueville Funds is disputing in
good faith as set forth above, unpaid invoices shall accrue a finance
charge of one and one-half percent (1 1/2%) per month, after the due
date. Notwithstanding anything to the contrary, amounts owed by the
Tocqueville Funds to USBFS 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, the Tocqueville Funds shall
indemnify and hold harmless 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 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.
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) 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.
Further, USBFS will adhere to the privacy policies adopted by the
Tocqueville Funds pursuant to Title V of the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ 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.
8. Anti-Money Laundering Program
The Tocqueville Funds acknowledges that it has 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 has 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 instructs
and directs USBFS to implement the Procedures on the Tocqueville
Funds' behalf, as such may be amended or 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 agrees 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 directs, 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 as of the date first written
above and will continue in effect for a period of one year.
Subsequent to the initial one year term, 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.
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.
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
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
and notice to the Tocqueville Funds shall be sent to:
The Tocqueville Trust and The Tocqueville Alexis Trust
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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: ______________________________ By: _____________________________
Title: ___________________________ Title: __________________________
THE TOCQUEVILLE TRUST
By: ______________________________
Title: ___________________________
Exhibit A
to the
Transfer Agent Servicing Agreement
Fund Names
Each a Separate Series of
The Tocqueville Trust and The Tocqueville Alexis Trust
Name of Series Date Added
-------------- ----------
The Tocqueville Fund
The Tocqueville Small Cap Value Fund
The Tocqueville International Value
The Tocqueville Gold Fund
The Tocqueville Genesis Fund
The Tocqueville Alexis Fund
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 Cap Value, $15.00 /▇▇▇▇▇▇▇▇▇ ESA acct (Cap at $30.00/SSN)
Tocqueville International Value, Tocqueville Gold, $25.00 /transfer to successor trustee
Tocqueville Genesis, and Tocqueville Alexis $25.00 /participant distribution (Excluding SWPs)
$25.00 /refund of excess contribution
$13.00 per open account Additional Shareholder Fees (Billed to Investors)
$ 9.00 per network level 3 account $15.00 /outgoing wire transfer
$ 2.50 per closed account $15.00 /overnight delivery
(Subject to $144,000 complex minimum $ 5.00 /telephone exchange
for 6 Funds) $25.00 /return check or ACH
$25.00 /stop payment
Activity Charges $5.00 /research request per account (Cap at
--------------- $25.00/request) (For requested items of
Telephone Calls - $1.50 /call the second calendar year [or previous]
Daily Valuation Trades - $6.75 /trade to the request)
Lost Shareholder Search - $5.00 /search
AML Base Service - Technology Charges
5,000 - 9999 Accounts - $2,500 / year ------------------
New Account Service - $1.00/new domestic 1. Fund Setup - $1,500 /CUSIP
accounts and $2.00/new foreign account 2. NSCC Service Interface - All NSCC Services
Shareholder Verification - $0.25 / each Setup - $1,500 /fund group
ACH/EFT Shareholder Services: Annual - $1,400 /CUSIP/year
$125.00 /month/fund group 3. Telecommunications and Voice Services
$ .50 /ACH item, setup, change Service Setup - $1,650 ATT transfer connect
$5.00 /correction, reversal VRU Setup - $500 /fund group
VRU Maintenance - $100 /CUSIP/month
Out-of-pocket Costs - Including but not limited to: $.35 /voice response call
------------------- $.40 /voice recognition call
Telephone toll-free lines, call transfers, etc. 4. Average Cost - $.36 /account/year
Mailing, sorting and postage 5. Development/Programming - $150 /hour
Stationery, envelopes 6. File Transmissions - subject to requirements
Programming, special reports 7. Selects - $300 per select
Insurance, record retention, microfilm/fiche 8. Extraordinary services - charged as incurred
Proxies, proxy services Conversion of Records (if necessary) -
ACH fees, NSCC charges Estimate to be provided.
All other out-of-pocket expenses Custom processing, re-processing
All other extraordinary services
Fees are billed monthly.
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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.
