As filed with the Securities and Exchange Commission on May 14, 2002
Registration No. 333-85140
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM N-14
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
PRE-EFFECTIVE AMENDMENT NO. 1
POST-EFFECTIVE AMENDMENT NO.
THE TOCQUEVILLE TRUST
(Exact Name of Registrant as Specified in Charter)
1675 Broadway, New York, New York 10019
(Address of Principal Executive Offices)
(212) 698-0800
(Registrant's Telephone Number)
Francois D. Sicart
c/o The Tocqueville Trust
1675 Broadway, New York, New York 10019
(Name and Address of Agent for Service)
with copies to:
Michael R. Rosella, Esq.
Paul, Hastings, Janofsky & Walker LLP
75 East 55th Street
New York, New York 10022
Approximate Date of Proposed Public Offering: As soon as practicable after the
Registration Statement becomes effective under the Securities Act of 1933.
It is proposed that this filing become effective on May 14, 2002, pursuant to
Rule 488 under the Securities Act of 1933.
No filing fee is due because the Registrant has previously registered an
indefinite number of shares under the Securities Act of 1933.
LEPERCQ-ISTEL TRUST
Lepercq-Istel Fund
NOTICE OF SPECIAL MEETING OF
SHAREHOLDERS - May __, 2002
1675 Broadway
New York, New York 10019
(800) 497-1411
A Special Meeting of Shareholders of the Lepercq-Istel Fund series of
the Lepercq-Istel Trust ("Lepercq") will be held at 10:00 a.m. on May __, 2002
at the offices of Lepercq, de Neuflize & Co. Incorporated at 1675 Broadway, New
York, New York 10019 for the following purposes, all of which are more fully
described in the accompanying Combined Proxy Statement/Prospectus dated May __,
2002.
1. To approve the Agreement and Plan of Reorganization and Liquidation
between The Tocqueville Fund series of The Tocqueville Trust ("Tocqueville") and
Lepercq which contemplates the transfer to Tocqueville of all the assets and
liabilities of Lepercq in exchange for shares of Tocqueville, the distribution
of such shares to the shareholders of Lepercq, the liquidation and dissolution
of Lepercq, and the termination of Lepercq's registration under the Investment
Company Act of 1940, as amended.
2. To transact such other business as may properly come before the
meeting.
Only shareholders of record at the close of business on April __, 2002 are
entitled to notice of, and to vote at, the meeting.
By Order of the Board of Trustees
PETER HARTNEDY, Secretary
New York, New York
May __, 2002
Your vote is important no matter how many shares you owned on the record date.
Please indicate your voting instructions on the enclosed proxy, date and sign
it, and return it in the envelope provided, which is addressed for your
convenience and needs no postage if mailed in the United States. In order to
avoid the additional expense to Lepercq of further solicitation, we ask for your
cooperation in mailing your proxy promptly.
COMBINED PROXY STATEMENT/PROSPECTUS
RELATING TO THE ACQUISITION OF ASSETS OF
LEPERCQ-ISTEL FUND
of
LEPERCQ-ISTEL TRUST
1675 Broadway
New York, New York 10019
(800) 497-1411
BY AND IN EXCHANGE FOR SHARES OF
THE TOCQUEVILLE FUND
of
THE TOCQUEVILLE TRUST
1675 Broadway
New York, New York 10019
(800) 697-3863
This Combined Proxy Statement/Prospectus relates to the proposed
transfer to The Tocqueville Fund series of The Tocqueville Trust ("Tocqueville")
of all of the assets and liabilities of the Lepercq-Istel Fund series of
Lepercq-Istel Trust ("Lepercq") in exchange for shares of Tocqueville to be
distributed to the shareholders of Lepercq in liquidation and dissolution of
Lepercq (the "Reorganization"). As a result of the proposed transaction, each
shareholder of Lepercq will receive that number of full and fractional shares of
Tocqueville equal in value at the time of the exchange to the value of such
shareholder's shares of Lepercq (Tocqueville and Lepercq are collectively
referred to as the "Funds").
The investment objective of Tocqueville is to seek long-term capital
appreciation. Tocqueville pursues these objectives by investing primarily in the
equity securities of United States companies which are considered to be
undervalued or out of favor and provide an opportunity for capital appreciation.
This Proxy Statement/Prospectus sets forth concisely information about
Tocqueville that shareholders of Lepercq should know before investing and should
be read and retained by investors for future reference. Copies of the prospectus
for Tocqueville dated February 28, 2002 and the annual report for Tocqueville
for the fiscal year ended October 31, 2001 are enclosed and are incorporated by
reference herein.
A Statement of Additional Information dated May __, 2002 relating to
this Combined Proxy Statement/Prospectus has been filed with the Securities and
Exchange Commission (the "SEC") and is incorporated by reference herein. A
Statement of Additional Information for Tocqueville dated February 28, 2002
containing additional and more detailed information about Tocqueville, has been
filed with the SEC and is incorporated by reference herein. In addition, a
prospectus for Lepercq dated April 30, 2002, and a Statement of Additional
Information for Lepercq dated April 30, 2002, have been filed with the SEC and
are incorporated by reference herein. Copies of all of these documents are
available without charge and can be obtained by writing to Lepercq, de Neuflize
& Co. Incorporated, at 1675 Broadway, New York, New York 10019 or calling (800)
497-1411.
The Securities and Exchange Commission has not approved or disapproved
these securities or passed upon the adequacy of this Prospectus. Any
representation to the contrary is a criminal offense.
This Combined Proxy Statement/Prospectus is dated May __, 2002.
ii
Table of Contents
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Page
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INTRODUCTION..............................................................1
Synopsis 1
Principal Risk Factors...........................................4
Comparison of Fees and Expenses..................................4
INFORMATION ABOUT THE REORGANIZATION......................................6
The Plan and Vote Required.......................................6
Method of Carrying Out the Plan..................................6
Description of Shares to be Issued...............................7
Reasons for the Reorganization...................................7
Tax Aspects......................................................9
Capitalization Table (Unaudited)................................11
ADDITIONAL INFORMATION ABOUT THE FUNDS...................................11
Investment Objectives and Policies..............................11
Investment Restrictions.........................................12
Portfolio Transactions..........................................12
Dividends and Distributions.....................................12
Rights of Shareholders..........................................13
Advisory Arrangements...........................................13
Distribution Arrangements.......................................13
Further Information.............................................14
VOTING MATTERS...........................................................14
Generally.......................................................14
Quorum and Adjournments.........................................15
Appraisal Rights................................................16
FINANCIAL STATEMENTS.....................................................16
OTHER MATTERS............................................................16
INTRODUCTION
Synopsis
This synopsis provides a concise summary of the information contained
in this Combined Proxy Statement/Prospectus, and presents key considerations for
shareholders of Lepercq to assist them in determining whether to approve the
Agreement and Plan of Reorganization and Liquidation of Lepercq (the "Plan").
The Proposed Transaction. On February 20, 2002, the Board of Trustees
of Lepercq (the "Board") approved the Plan, which contemplates the transfer of
all of the assets and liabilities of Lepercq in exchange for shares of
Tocqueville. Following the transfer, shares of Tocqueville will be distributed
to shareholders of Lepercq in liquidation of Lepercq and Lepercq subsequently
will be dissolved. In connection therewith, Lepercq will deregister under the
Investment Company Act of 1940, as amended (the "Act"), by filing the
appropriate application with the SEC. See "Information About the Reorganization
- - The Plan and Vote Required" and "Information About the Reorganization - Method
of Carrying Out the Plan."
The Board of Trustees of Lepercq and Tocqueville share one common
trustee, Mr. Francois Letaconnoux. Both Funds are equity funds with similar
investment objectives and strategies. Lepercq is managed by Lepercq, de Neuflize
& Co. Incorporated and Tocqueville is managed by Tocqueville Asset Management
L.P. (Tocqueville Asset Management L.P. may be referred to herein as "the
Tocqueville Adviser" and Lepercq, de Neuflize & Co. Incorporated may be referred
to herein as "the Lepercq Adviser" and together, the "Advisers"). Each Fund's
Board of Trustees and the Advisers recognize that greater economies of scale and
efficiencies can be attained by combining the assets of the Funds and that since
the investment objectives are very similar, such a combination would not
materially alter the investment experience of the shareholders of Lepercq.
As a result of the proposed Reorganization, each shareholder of Lepercq
will receive that number of full and fractional shares of Tocqueville equal in
value at the time of the exchange to the value of such shareholder's shares of
Lepercq. The Board of Trustees has determined that the interests of existing
shareholders of Lepercq will not be diluted as a result of the transactions
contemplated by the Reorganization. For the reasons set forth below under
"Reasons for the Reorganization," the Board of Trustees, including the
disinterested trustees, concluded that the Reorganization would be in the best
interests of the shareholders of Lepercq and recommends approval of the Plan.
Tax Consequences. In the opinion of Paul, Hastings, Janofsky & Walker
LLP, the proposed transaction will qualify as a tax-free reorganization for
federal income tax purposes. As a result, no gain or loss will be recognized by
either Tocqueville, Lepercq, or the shareholders of Lepercq as a result of the
Reorganization. However, Lepercq will have non-qualifying gross income equal to
its reorganization expenses paid by the Tocqueville Adviser and/or the
Tocqueville distributor. See "Information About the Reorganization--Tax
Aspects."
Investment Objectives and Policies. The Funds are both open-end,
diversified management investment companies. The investment objective of
Tocqueville is to seek long-term capital appreciation. Tocqueville pursues these
objectives by investing primarily in the
equity securities of United States companies which Tocqueville believes to be
undervalued or out of favor. Tocqueville may invest up to 25% of its net assets
in securities of foreign issuers through American Depositary Receipts ("ADRs").
The investment objective of Lepercq is to seek long-term capital appreciation.
Lepercq seeks to achieve this objective by investing primarily in the equity
securities of United States companies which the Lepercq Adviser believes to be
undervalued. Lepercq may invest up to 20% of its net assets in securities of
foreign issuers through ADRs. The investment objectives and policies of the
Funds are more fully described in "Additional Information About the
Funds--Investment Objectives and Policies."
Investment Advisory, Administration and Distribution and Service Plan
Fees. Lepercq, de Neuflize & Co. Incorporated is the investment adviser for
Lepercq and US Bancorp Fund Services, LLC is the administrator for Lepercq.
Tocqueville Asset Management L.P. is the investment adviser and administrator
for Tocqueville. Currently, the advisory fee payable by Lepercq to its Adviser
under the Investment Advisory Agreement is equal to .75% of average daily net
assets. The administrative services fee payable by Lepercq to its administrator
under the Administrative Services Agreement is equal to 0.07% of the average
daily net assets on the first $200 million, 0.06% on the next $500 million and
0.04% on the balance with a minimum annual fee of $35,000. The management fee
payable by Tocqueville to its Adviser under the Investment Advisory Agreement is
equal to .75% of the average daily net assets on the first $500 million and .65%
of the average daily net assets in excess of $500 million and the administrative
services fee payable by Tocqueville to its Adviser under the Administrative
Services Agreement is equal to .15% of average daily net assets. See "Additional
Information About the Funds - Management Arrangements."
Lepercq has adopted a Distribution Plan and Tocqueville has adopted a
Distribution and Service Plan pursuant to Rule 12b-1 under the Act which
regulates the circumstances under which an investment company may, directly or
indirectly, bear the expenses of distributing its shares. The shares of
Tocqueville may pay up to .25% of its average daily net assets pursuant to its
Distribution and Service Plan to pay the cost of advertising, printing of
prospectuses and reports for other than existing shareholders, preparation and
distribution of advertising material and sales literature and payments to
dealers and shareholder servicing agents including the Tocqueville Distributor
who enter into agreements with Tocqueville or its distributor. Lepercq may pay
up to .75% of its average daily net assets pursuant to its Distribution Plan to
pay the cost of printing of Prospectuses, Statements of Additional Information,
reports used for sales purposes, advertisements, expenses of preparation and
printing of sales literature and other distribution-related expenses. However,
Lepercq made no payments under the Distribution Plan during the fiscal year
ended December 31, 2001. See "Additional Information About the
Funds--Distribution Arrangements."
Lepercq has also adopted a Shareholder Servicing Plan whereby Lepercq
may enter into shareholder servicing agreements under which it pays fees of up
to .25% of the average daily net assets of the Fund for fees in connection with
the personal service and maintenance of accounts holding shares of Lepercq. Such
agreements are entered into between Lepercq and various shareholder servicing
agents, including the Lepercq Distributor and its affiliates, and other
financial institutions and securities brokers. These shareholder servicing
agents may periodically waive all or a portion of their respective shareholder
servicing fees. Currently, Lepercq does not pay any shareholder servicing fees.
2
Lepercq/Tocqueville Transaction. On May 6, 2002, Lepercq, de Neuflize
Securities Inc. (the "Lepercq Distributor") combined its broker-dealer
operations with Tocqueville Securities L.P. (the "Tocqueville Distributor") (the
"Lepercq/Tocqueville Transaction"). In the combination, the Lepercq Distributor
contributed a portion of its assets to the Tocqueville Distributor in exchange
for an interest in the Tocqueville Distributor. The Tocqueville Distributor
changed its name to Lepercq, de Neuflize/Tocqueville Securities, L.P. The
Lepercq/Tocqueville Transaction may be considered to result in the assignment of
the Lepercq Distribution Agreement, causing it to terminate. The Board of
Trustees has approved a new Distribution Agreement with the Tocqueville
Distributor, which became effective upon the consummation of the
Lepercq/Tocqueville Transaction. The new Distribution Agreement is identical to
the current Distribution Agreement, except for the identity of the distributor
and the dates of execution and effectiveness. The new Distribution Agreement did
not require shareholder approval. The Lepercq/Tocqueville Transaction is
expected to be consummated regardless of whether the Reorganization is approved
by the Lepercq shareholders.
Purchases, Redemptions and Exchanges. The Funds sell and redeem their
shares on a continuing basis at their net asset values and do not impose a sales
charge for either sales or redemptions. All other purchase and redemption
procedures applicable to the Funds are substantially the same except as follows:
(1) Tocqueville imposes a 1.50% redemption fee on certain redemptions of shares
held less than 90 days. Shares of Tocqueville issued to Lepercq shareholders as
a result of the proposed Reorganization will be deemed to be held for the period
the shares were held in Lepercq prior to the Reorganization and in Tocqueville
after the Reorganization for purposes of determining whether the redemption fee
is applicable; (2) pursuant to Tocqueville's exchange privileges, Tocqueville
shareholders can exchange some or all of their shares for shares of the other
three Tocqueville Funds i.e., The Tocqueville Small Cap Value Fund, The
Tocqueville International Value Fund and The Tocqueville Gold Fund, which retain
Tocqueville Adviser as investment adviser. Tocqueville shareholders also can
exchange some or all of their shares for shares of certain funds managed by an
affiliate of Tocqueville's transfer agent; and (3) Lepercq may redeem a
shareholder's account if the balance in the account falls below $1,000 and the
shareholder, after having been given 30 days' notice, does not bring the account
balance above such amount. Tocqueville may redeem a shareholder's account if the
balance in the account falls below $500 for a period of three months or more due
to redemptions. Shareholders of Tocqueville will be given at least 60 days'
written notice of any proposed redemption and the option to purchase additional
shares to avoid the redemption.
Other Considerations. In the event the shareholders of Lepercq do not
approve the Reorganization, the Board will consider possible alternatives to the
proposed Reorganization. Shareholders have no right of appraisal, but may
continue to redeem their shares in accordance with normal Lepercq redemption
policies.
Cost of the Reorganization. The cost of the preparation and
distribution of the proxies and proxy statements and any other out-of-pocket
expenses associated with this Reorganization incurred by Lepercq in an amount of
approximately $_______ will be borne by the Tocqueville Adviser and/or the
Tocqueville Distributor.
This Synopsis is qualified by reference to the more complete
information contained elsewhere in this Combined Prospectus/Proxy Statement,
including information incorporated by reference herein.
3
Principal Risk Factors
Since the Funds both invest primarily in common stocks of United States
companies, investors are subject to risks inherent in an investment in common
stocks, including stock market fluctuations, fluctuations in the value of the
Funds' portfolios and liquidity risks (the risk that a trading market may not
exist for a stock when the Funds decide to sell it). When stock prices
fluctuate, the Funds' share prices may go down in value. Also, common stocks
selected by each Fund may or may not increase in value when the stock market is
rising or may fail to perform as expected. Additionally, Lepercq may invest up
to 20% of its net assets and Tocqueville may invest up to 25% of its net assets
in securities of foreign issuers through ADRs. ADRs are certificates issued by
U.S. banks representing the right to receive securities of a foreign issuer
deposited with that bank or corresponding bank. Investments in such securities
involve additional risks including fluctuations in foreign exchange rates,
future political and economic developments and possible imposition of exchange
controls or other foreign governmental laws or restrictions. Also, foreign
companies are not subject to accounting, auditing and financial reporting
standards and requirements comparable to those of United States companies. Thus,
the prices of securities in different countries are subject to different
economic, financial, political and social factors. As of April 30, 2002,
Tocqueville had approximately 13% of its net assets in securities of foreign
issuers. Tocqueville does not intend to significantly increase its holdings in
securities of foreign issuers after the Reorganization.
Comparison of Fees and Expenses
The following table shows the comparative fees and expenses of the
Funds. The table also reflects the pro forma fees for Tocqueville after giving
effect to the Reorganization. Based upon this comparison, Lepercq shareholders
will bear the benefit of a decrease in the applicable current estimated expense
ratio of the Reorganization.
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FEE TABLE
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Pro Forma
Lepercq Tocqueville Combined
Shareholder Fees
- ---------------- ------------- --------------- -------------
(fees that are paid directly from your investment)
Maximum Sales Charge (Load) Imposed on Purchases (as a
percentage of offering price)............................. None(1) None None
Maximum Deferred Sales Charge (Load)
(as a percentage of offering price)....................... None None None
Maximum Sales Charge (Load) Imposed on
Reinvestment Dividends.................................... None None None
Redemption Fee............................................ None(1) 1.50%(3) 1.50%(3)
Exchange Fee.............................................. None (4) (4)
Maximum Account Fee....................................... None None None
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4
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Annual Fund Operating Expenses
- ------------------------------ Pro Forma
(expenses that are deducted from Fund assets) Lepercq Tocqueville Combined
------------- --------------- -------------
Management Fees........................................... .75% .75% .75%
Distribution and Service (12b-1) Fees..................... .00%(2) .25% .25%
Other Expenses............................................ .90% .46%(5) .51%
Total Annual Fund Operating Expenses...................... 1.65% 1.46%(5) 1.51%
(1) Although no sales load or transaction fees are charged, you will be assessed
a $15.00 fee for outgoing wire transfers and a $25.00 fee for returned checks.
(2) The amount shown for Rule 12b-1 fees indicates that there were no 12b-1 fees
paid by the Fund for the fiscal year ended December 31, 2001. Under the
fund's Rule 12b-1 Plan, the maximum fee the fund may incur for annual sales
and distribution expenses is 0.75%. However, the fund has voluntarily capped the
amount paid under the plan to 0.10% per year of the fund's average daily
net assets for the fiscal year ending December 31, 2002. Investors will be given
30 days' prior notice if the fund decides to discontinue the cap.
(3) A redemption fee is imposed on certain redemptions of shares held less than
90 days. A redemption fee will not be imposed on redemptions of shares where the
Tocqueville Adviser or Tocqueville Securities L.P. is the shareholder of record,
or exercises discretion over the account. Shares of Tocqueville issued to
Lepercq shareholders as a result of the proposed Reorganization will be deemed
to be held for the period the shares were held in Lepercq prior to the
Reorganization and in Tocqueville after the Reorganization for purposes of
determining whether the redemption fee is applicable. The Transfer Agent charges
a $15 service fee for each payment of redemption proceeds made by
wire.
(4) The Transfer Agent charges a $5 fee for each telephone exchange.
(5) Other Expenses and Total Annual Fund Operating Expenses are .40% and 1.40%,
respectively, after voluntary waiver by the Tocqueville Adviser. This waiver may
be terminated at any time.
Example
This Example is intended to help you compare the cost of investing in
Lepercq, Tocqueville and the combined fund. The expenses shown are at levels
anticipated for the current fiscal year.
The Example assumes that you invest $10,000 in a fund for the time
periods indicated and then redeem all of your shares at the end of those
periods. The Example also assumes that your investment has a 5% return each year
and that the fund's operating expenses remain the same. Although your actual
costs may be higher or lower, based on these assumptions your costs would be:
1 Year 3 Years 5 Years 10 Years
Lepercq: $168 $520 $897 $1,955
Tocqueville: $149 $462 $797 $1,746
Pro Forma Combined: $154 $477 $824 $1,802
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5
INFORMATION ABOUT THE REORGANIZATION
The Plan and Vote Required
On February 20, 2002, the Board of Trustees of Lepercq adopted the Plan
and approved the Plan's submission to the shareholders of Lepercq. The Plan (a
copy of which is set forth in full as Exhibit A to this combined Proxy
Statement/Prospectus) contemplates the Reorganization under which (i) all of the
assets and liabilities of Lepercq would be transferred to Tocqueville in
exchange for shares of Tocqueville, (ii) these shares would be distributed among
the shareholders of Lepercq and (iii) Lepercq would be liquidated and dissolved
and its registration under the Act would be terminated.
The result of the carrying out of the Plan would be that (i)
Tocqueville would add to its gross assets and liabilities all of the assets (net
of any liability for portfolio securities purchased but not settled) and
liabilities of Lepercq and (ii) the shareholders of Lepercq would become
shareholders of Tocqueville as soon as practicable after the closing. In
essence, shareholders of Lepercq who vote their shares in favor of the Plan are
electing to redeem their shares of Lepercq at net asset value and reinvest the
proceeds in shares of Tocqueville at net asset value without sales charge and
without recognition of taxable gain or loss for federal income tax purposes (see
"Tax Aspects" below). The Tocqueville Adviser and/or the Tocqueville Distributor
will bear all of the expenses associated with the Reorganization, including
legal, accounting, printing, transfer agency, filing, proxy soliciting, transfer
taxes and similar expenses incurred. Management estimates that the expenses of
the Reorganization will not exceed $_______. Liabilities as of the date of the
transfer of assets will consist primarily of accrued but unpaid normal operating
expenses of Lepercq including the cost of any portfolio securities purchased but
not yet settled.
The vote of the holders of at least a majority of the outstanding
shares of Lepercq entitled to vote at the meeting is required for the approval
of the Plan, including the liquidation and dissolution of Lepercq. If the
shareholders do not approve the Plan, the Reorganization will not be effected
and the Board will consider possible alternatives.
Method of Carrying Out the Plan
The consummation of the transactions contemplated by the Plan is
contingent upon the approval of this proposal by the shareholders of Lepercq and
the receipt of the opinions and certificates set forth in Sections 10 and 11 of
the Plan and the occurrence of the events described in those Sections.
Under the Plan, all the assets and liabilities of Lepercq will be
delivered to Tocqueville in exchange for shares of Tocqueville. The actual
exchange of assets is expected to take place on or about May __, 2002 (defined
in the Plan as the "Closing Date"). Under the Plan, all redemptions of shares of
Lepercq shall be permanently suspended on or about (assuming a May __, 2002
Closing Date) May __, 2002; only redemption requests received in proper form on
or prior to the close of business on that date shall be fulfilled by Lepercq;
redemption requests received by Lepercq after that date will be treated as
requests for redemptions of shares of Tocqueville to be distributed to the
shareholders requesting redemption. The number of full and fractional shares of
Tocqueville to be issued to shareholders of Lepercq will be based on the
relative net asset values per share of Lepercq and Tocqueville determined at or
immediately
6
preceding the effective time of the Reorganization. Portfolio securities of both
Funds will be valued in accordance with the valuation practices as described
under "Net Asset Value" in each Fund's Prospectus.
After the Closing Date, Lepercq will distribute on a pro rata basis to
its shareholders of record on May __, 2002 shares of Tocqueville received by
Lepercq at closing, in liquidation and cancellation of the outstanding shares of
Lepercq. To assist Lepercq in this distribution, Tocqueville, in accordance with
a shareholder list supplied by Lepercq, will cause its transfer agent to credit
and confirm an appropriate number of shares of Tocqueville to each shareholder
of Lepercq. No certificates for shares of Tocqueville will be issued.
Under the Plan, within one year after the Closing Date, Lepercq shall
(a) effect its liquidation and dissolution under Massachusetts law, terminate
its registration under the Act and file a final report to the SEC under the Act,
and (b) either pay or make provision for all of its debts and taxes.
If the Plan is approved by shareholders, Lepercq reserves the right to
sell portfolio securities and/or purchase other securities, to the extent
necessary so that the asset composition of Lepercq is consistent with the
investment policies and restrictions of Tocqueville. To the extent Lepercq sells
securities at a gain, current shareholders may receive a capital gain dividend.
Transaction costs associated with any such purchases and sales would be borne by
the Tocqueville Adviser and/or the Tocqueville Distributor.
Under the Plan, either of the Funds may abandon and terminate the Plan
at any time prior to the Closing Date without liability if (i) the other party
breaches any material provision of the Plan, (ii) prior to the Closing Date, any
legal, administrative or other proceeding shall be instituted or threatened
seeking to restrain or otherwise prohibit the transactions contemplated by the
Plan and/or asserting a material liability of either party, which proceeding has
not been terminated or the threat thereto removed prior to the Closing Date or
(iii) on the Valuation Date (as defined in the Plan attached hereto as Exhibit
A) either party has, pursuant to the Act or any rule, regulation or order
thereunder, suspended the redemption of its shares and such suspension continues
for a period of 60 days beyond the Valuation Date.
In the event that the Plan is not consummated for any reason, the Board
of Trustees of Lepercq will consider and may submit to the shareholders other
alternatives.
Description of Shares to be Issued
Full and fractional shares of Tocqueville will be issued to
shareholders of Lepercq in accordance with the procedures under the Plan as
described above. Each share will be fully paid and nonassessable when issued and
transferable without restriction and will have no preemptive or conversion
rights.
Reasons for the Reorganization
The Board considered the Reorganization and adopted the Plan at a
meeting on February 20, 2002. At the meeting, the Lepercq Adviser recommended to
the Trustees that they adopt the Plan and approve the Plan's submission to the
shareholders of Lepercq.
7
Management of the Funds is of the view that both Funds would benefit
from the Reorganization because of the economies of scale that would come with a
larger asset base. Management has informed the Board of its belief that a
reduction in expenses could potentially be realized as a result of the
elimination of duplicative costs presently incurred for services that are
performed for both Funds.
In making its recommendation, Management considered the similarities of
the investment objectives and policies of the Funds and the fact that the Funds
share the same service providers. Further, Management considered that the
Reorganization would be effected as a tax-free reorganization.
Given the above factors and the similarity in the investment strategies
of the Funds, the Lepercq Adviser concluded that combining the two Funds would
be appropriate and would enable the shareholders of Lepercq to benefit from
certain economies of scale. The Lepercq Adviser indicated to the Board its
belief that the most appropriate method of combining the Funds would be through
a tax-free reorganization of the assets of the Funds. The Lepercq Adviser also
stated its belief that the Reorganization is a better alternative than a taxable
redemption of Lepercq shares or an outright liquidation and dissolution, and the
Board concurred.
In considering the Lepercq Adviser's proposal, the Board considered
other alternatives that are available to shareholders, including the ability to
redeem shares of Lepercq prior to the Reorganization. The Board also inquired
into a number of other factors which include the expense ratios and the
investment performance of the Funds. The Board was informed of the expense
ratios of the Funds for the most recently completed fiscal year which for
Lepercq is 1.65% and for Tocqueville is 1.46%. See the Fee Table on page [4]
which reflects the proposed impact on overall expense ratios applicable to
Lepercq's shareholders.
The Board also considered the following comparative investment
performance information regarding the Funds:
- --------------------------------------------------------------------------------
Total Return Information for Periods Ended December 31, 2001
- -------------------------------------------------------------------------------
One Year Three Years Five Years Ten Years
- --------------------------------------------------------------------------------
Lepercq (17.35)% (8.76)% (0.92)% 5.71%
- --------------------------------------------------------------------------------
Tocqueville (6.33)% 4.54% 6.33% 12.28%
- --------------------------------------------------------------------------------
Thus, the factors considered by the Board included, among other things:
(1) recent and anticipated asset and expense levels of the Funds and future
prospects of each Fund; (2) the similarity of the investment advisory,
distribution and administration arrangements, the fact that the Funds have the
same service providers and the fact that the Funds expect the Reorganization to
realize savings in fixed expenses because of resulting efficiencies in
administration, portfolio management and marketing; (3) alternative options to
the Reorganization; (4) the terms and conditions of the Reorganization; (5) the
similarity of the investment objectives, policies and
8
restrictions of the Funds; (6) the lack of tax consequences from the
Reorganization; and (7) potential tax consequences if there is no Reorganization
and Lepercq's assets continue to decline.
The Board also considered the overall Lepercq/Tocqueville Transaction,
in particular the strategic combination of the businesses of both groups and the
resulting effectiveness and efficiency in having the two Funds combined.
Based upon these factors, the Board, including the Trustees who are not
interested persons of Lepercq, has determined that the Reorganization of Lepercq
would be in the best interests of Lepercq's shareholders and that no
shareholder's interest would be diluted as a consequence thereof, and approves
the Plan's submission to the shareholders of Lepercq.
Tax Aspects
Immediately prior to the Valuation Date referred to in the Plan,
Lepercq will pay a dividend or dividends which, together with all previous such
dividends, shall have the effect of distributing to Lepercq's shareholders all
of Lepercq's investment company taxable income (computed without regard to any
deduction for dividends paid) for taxable years ending on or prior to the
Closing Date and all of its net capital gain, if any (after reduction for any
available capital loss carry forward), realized in taxable years ending on or
prior to the Closing Date. Such dividends will be included in the income of
Lepercq's shareholders as ordinary income and capital gain, respectively.
The exchange of the assets of Lepercq for shares of Tocqueville and the
assumption by Tocqueville of the liabilities of Lepercq, and the liquidation of
Lepercq, are intended to qualify for federal income tax purposes as a tax-free
reorganization under Section 368(a)(1)(C) of the Internal Revenue Code (the
"Code"). As a condition to the closing of the proposed transaction, the Funds
will each receive the opinion of Paul, Hastings, Janofsky & Walker LLP, counsel
to the Funds, to the effect that, based on certain assumptions and on the
existing provisions of the Code, Treasury Regulations issued thereunder, current
Revenue Rulings, Revenue Procedures and court decisions, for federal income tax
purposes:
(1) Lepercq's transfer of all of its assets to Tocqueville in exchange
for shares of Tocqueville and Tocqueville's assumption of all of Lepercq's
liabilities, followed by Lepercq's distribution of Tocqueville shares to
Lepercq's shareholders as part of the liquidation of Lepercq, will qualify as a
tax-free "reorganization" within the meaning of Section 368(a)(1)(C) of the
Code. The Funds will each be "a party to a reorganization" within the meaning of
Section 368(b) of the Code,
(2) no gain or loss will be recognized by the shareholders of Lepercq
upon the exchange of Lepercq shares for Tocqueville shares (Section 354(a) of
the Code),
(3) Lepercq will not recognize gain or loss upon the transfer of all of
its assets to Tocqueville in exchange for shares of Tocqueville and
Tocqueville's assumption of all of the liabilities of Lepercq (Sections 361(a)
and 357(a) of the Code), or upon the distribution of such shares of Tocqueville
to Lepercq's shareholders in exchange for all of their shares in Lepercq
(Section 361(c) of the Code),
9
(4) Tocqueville will not recognize gain or loss upon its receipt of
Lepercq's assets in exchange for shares of Tocqueville (Section 1032(a) of the
Code),
(5) the basis of shares of Tocqueville received by the shareholders of
Lepercq will be the same as their basis in the shares of Lepercq surrendered in
exchange therefor (Section 358(a)(1) of the Code),
(6) the holding period of shares of Tocqueville received by the
shareholders of Lepercq in exchange for Lepercq shares will include the period
during which they held Lepercq shares surrendered, provided that such Lepercq
shares are capital assets on the date of the exchange (Section 1223(1) of the
Code),
(7) the tax basis of the assets of Lepercq acquired by Tocqueville will
be the same as the tax basis of such assets to Lepercq immediately prior to the
transaction (Section 362(b) of the Code), and
(8) the holding period of the assets of Lepercq in the hands of
Tocqueville will include the period during which those assets were held by
Lepercq (Section 1223(2) of the Code).
Lepercq will have non-qualifying income in an amount equal to its
reorganization expenses paid by the Tocqueville Adviser and/or the Tocqueville
Distributor. Lepercq does not expect such non-qualifying income to prevent it
from qualifying as a regulated investment company.
Immediately prior to the Reorganization, Lepercq will have a net
operating loss ("NOL") carryover. Tocqueville will be limited in its ability to
use this NOL carryover in the future because Lepercq will be treated as having
undergone an ownership change under Section 382 of the Code. As a result,
Tocqueville will be able to use the NOL carryover in any year only up to an
amount equal to the product of (i) the value of Lepercq on the date of the
Reorganization and (ii) the long-term tax-exempt rate as of that date published
by the Internal Revenue Service. For May, the long-term tax-exempt rate is
5.01%.
Shareholders of Lepercq should consult their tax advisors regarding the
effect, if any, of the proposed transaction in light of their individual
circumstances. Since the foregoing discussion only relates to the federal income
tax consequences of the proposed transaction, shareholders of Lepercq should
also consult their tax advisers as to state and local tax consequences, if any,
of the proposed transaction.
10
Capitalization Table (Unaudited)
The table below sets forth the existing capitalization of the Funds, as
well as the pro forma capitalization, as of October 31, 2001.
- --------------------------------------------------------------------------------
Tocqueville
Lepercq Tocqueville After Transfer of
Lepercq
- --------------------------------------------------------------------------------
Net Assets $ 19,233,861 $ 51,089,015 $ 70,322,876
- --------------------------------------------------------------------------------
Shares Outstanding 1,350,191 3,407,393 4,690,925
- --------------------------------------------------------------------------------
Net Asset Value Per Share $ 14.25 $ 14.99 $ 14.99
- --------------------------------------------------------------------------------
ADDITIONAL INFORMATION ABOUT THE FUNDS
Additional information about the Funds is presented below. Shareholders
of Lepercq should bear in mind that the Reorganization will not result in any
change in the investment management or day-to-day operation of Tocqueville. Such
information is incorporated herein by reference from (i) Tocqueville's
Prospectus dated February 28, 2002, enclosed herewith, and Tocqueville's
Statement of Additional Information dated February 28, 2002; and (ii) Lepercq's
Prospectus and Statement of Additional Information, both dated April 30, 2002.
Investment Objectives and Policies
The investment objectives and policies of the Funds are substantially
similar. Both Funds seek long-term capital appreciation primarily through
diversified portfolios of equity securities. Under normal circumstances, the
Funds will have most of their assets invested in domestic equity securities,
including common stocks, securities convertible into common stocks or rights or
warrants to subscribe for or purchase common stocks. However, Tocqueville and
Lepercq also may invest 25% and 20%, respectively, of their net assets in the
securities of foreign issuers through ADRs. Critical factors that will be
considered in the selection of any securities in which the Funds may invest will
include the values of individual securities relative to other investment
alternatives, trends in the determinants of corporate profits, corporate cash
flow, balance sheet changes, management capability and practices, and the
economic and political outlook.
The investment objective of Tocqueville is to seek long-term capital
appreciation. Tocqueville seeks to achieve its investment objective by investing
primarily in common stocks of United States companies. Tocqueville follows a
value approach to investing, meaning that it seeks to invest in companies that
the portfolio manager has identified as out of favor or undervalued. The
portfolio manager will identify companies that are undervalued based on his
judgment of relative value and growth potential. This judgment will be based
primarily on: the company's past growth and profitability or the portfolio
manager's belief that the company has achieved better results than similar
companies in a depressed industry which the portfolio manager believes will
improve within the next two years. The portfolio manager will generally consider
the following stocks to be out of favor: stocks which have underperformed market
indices for at least one year and companies which have a historically low stock
price in relation
11
to the company's sales, potential earnings or underlying assets. The portfolio
manager will purchase stocks for Tocqueville's portfolio when they meet the
above criteria and have a limited risk of further decline. The portfolio manager
will sell stocks when they are no longer considered to be good values.
The investment objective of Lepercq is also long-term capital
appreciation. Lepercq seeks to achieve its goal by investing in common stock of
companies undergoing a transformation that might include a realignment of
business focus, re-engineering of business process, or entry into new markets
that provides an opportunity for capital appreciation. The Lepercq Adviser
purchases securities when, in its view, the positive changes taking place in a
company are not properly recognized by the stock market. The Lepercq Adviser's
approach of investing in corporate transformation rests on the belief that
attractive returns are possible from the early recognition that changes taking
place in a corporation will be successful. Examples of the kind of changes that
might significantly improve the business prospects of a company include
refocusing a company around its core competencies or re-engineering a company to
improve its effectiveness. Because it is the Lepercq Adviser's belief that the
success of a company emanates from the abilities of its top management, the
Lepercq Adviser places a great deal of emphasis on investigating the
qualifications of company management. In pursuing its investment approach, the
Lepercq Adviser is indifferent to whether the investments adhere to either the
growth or value style of investing. The adviser purchases an investment when it
believes that the positive changes in a company are not properly recognized by
the market and sells an investment when it concludes that either the positive
changes are adequately recognized or that the outcome will be less attractive
than previously expected.
Investment Restrictions
The Funds each have certain fundamental investment restrictions which
cannot be changed unless approved by a majority of the outstanding shares of
each of the Funds' shares that would be affected by such a change. These
restrictions can be found under the caption "Investment Restrictions" in each
Fund's respective Statement of Additional Information.
The investment restrictions applicable to the Funds are substantially
similar except for the differences of Tocqueville noted below. Tocqueville is
prohibited from underwriting securities, investing in precious metals other than
in accordance with the Fund's investment objective and policy, if as a result
the Fund would then have more than 10% of its total net assets (taken at current
value) invested in such precious metals, and participating in a joint investment
account.
Portfolio Transactions
Brokerage practices are the same for the Funds.
Dividends and Distributions
The Funds have elected to be treated as regulated investment companies
under the Code. By qualifying, the Funds generally will not be subject to
federal income tax to the extent they distribute their investment company
taxable income and net capital gains in the manner required under the Code. It
is each Fund's policy to distribute to shareholders substantially all of its net
investment income and net capital gains each year, if any.
12
Rights of Shareholders
Both of the Funds are Massachusetts business trusts. As Massachusetts
business trusts, the operation of the Funds is governed by their respective
Declaration of Trust and applicable Massachusetts law. Shares of the Funds are
redeemable at their net asset value. The voting rights of both Funds are
substantially the same. The shares of each Fund entitle the holder to one vote
per share on the election of trustees and all other matters submitted to
shareholders. All shares of each class of each such Fund participate equally in
its dividends and distributions and in its net assets on liquidation, and all
shares of each, when issued, are fully paid and non-assessable, freely
transferable and have no preference, pre-emptive or conversion rights. It is
contemplated that neither Fund will hold regular annual meetings of
shareholders.
Advisory Arrangements
The Tocqueville Investment Advisory Agreement provides that the
Tocqueville Adviser identify and analyze possible investments for the Fund,
determine the amount and timing of such investments, and the form of investment.
The Tocqueville Adviser has the responsibility of monitoring and reviewing the
Fund's portfolio, and, on a regular basis, to recommend the ultimate disposition
of such investments. It is the Tocqueville Adviser's responsibility to cause the
purchase and sale of securities in the Fund's portfolio, subject at all times to
the policies set forth by Tocqueville's Board of Trustees.
The Lepercq Investment Advisory Agreement provides that the Lepercq
Adviser shall supervise the investment and reinvestment of the cash, securities
or other properties comprising Lepercq's assets, subject at all times to the
policies and controls of the Trustees.
The advisory fee for Tocqueville is .75% of the average daily net
assets on the first $500 million and .65% of the average daily net assets in
excess of $500 million. The advisory fee for Lepercq is .75% of average daily
net assets.
Pursuant to the Administrative Services Agreement between Tocqueville
and its Adviser, the Tocqueville Adviser supervises the administration of all
aspects of the Fund's operations, including each Fund's receipt of services for
which the Fund is obligated to pay, provides the Funds with general office
facilities and provides, at the Fund's expense, the services of persons
necessary to perform such supervisory, administrative and clerical functions as
are needed to effectively operate the Fund.
The Tocqueville Adviser receives a fee from Tocqueville equal to .15%
of average daily net assets under the Administrative Services Agreement.
Distribution Arrangements
Tocqueville has adopted a Distribution and Service Plan pursuant to
12b-1 under the Act whereby Tocqueville distributes Fund shares through the
Tocqueville Distributor. Under the Plan, the Fund may finance activities which
are primarily intended to result in the sale of the Fund's shares, including,
but not limited to, advertising, printing of prospectuses and reports for other
than existing shareholders, preparation and distribution of advertising material
and sales literature and payments to dealers and shareholder servicing agents
including the Tocqueville Distributor who enter into agreements with the Fund or
its distributor.
13
Lepercq has adopted a Distribution Plan pursuant to 12b-1 under the Act
whereby the Lepercq Distributor will be entitled to reimbursement each month of
up to an aggregate maximum of .75% per year of the Fund's average daily net
assets for actual expenses incurred in the distribution and promotion of the
shares of the Fund, including but not limited to, the printing of Prospectuses,
Statements of Additional Information, reports used for sales purposes,
advertisements, expenses of preparation and printing sales literature and other
distribution related expenses. Lepercq has voluntarily capped the amount paid
under the plan to .10% per year of its average daily net assets. Lepercq did not
make any payments under the Distribution Plan for the fiscal year ended December
31, 2001.
Lepercq has also adopted a Shareholder Servicing Plan whereby Lepercq
may enter into shareholder servicing agreements under which it pays fees of up
to .25% of the average daily net assets of the Fund for fees in connection with
the personal service and maintenance of accounts holding shares of Lepercq. Such
agreements are entered into between Lepercq and various shareholder servicing
agents, including the Lepercq Distributor and its affiliates, and other
financial institutions and securities brokers. These shareholder servicing
agents may periodically waive all or a portion of their respective shareholder
servicing fees. Currently, Lepercq does not pay any shareholder servicing fees.
Further Information
The Funds file reports and other information with the SEC. Proxy
material, reports and other information about the Funds which are of public
record can be inspected and copied at public reference facilities maintained by
the SEC at 450 Fifth Street, N.W., Washington, DC 20549, and at the SEC's
regional office at 233 Broadway, New York, New York 10279, and copies of such
materials can be obtained at prescribed rates from the Public Reference Branch,
Office of Consumer Affairs and Information Services, SEC, Washington, DC 20549
or by e-mailing the SEC at publicinfo@sec.gov.
VOTING MATTERS
Generally
This Combined Prospectus/Proxy Statement is being furnished in
connection with the solicitation of proxies by the Board of Trustees of Lepercq
for use at a Special Meeting of Shareholders (the "Meeting") to be held at the
offices of Lepercq, de Neuflize & Co. Incorporated at 1675 Broadway, New York,
New York on May __, 2002 at 10:00 a.m. or any adjournment thereof, to approve or
disapprove the Plan. It is expected that the solicitation of proxies will be
primarily by mail. Supplemental solicitations may be made by mail, telephone or
personal interviews by officers and representatives of Lepercq. It is
anticipated that banks, broker-dealers and other institutions will be requested
to forward proxy materials to beneficial owners and to obtain authorization for
the execution of proxies. The Tocqueville Adviser and/or the Tocqueville
Distributor may, upon request, reimburse banks, broker-dealers and other
institutions for their expenses in forwarding proxy materials to beneficial
owners.
Only shareholders of record of Lepercq at the close of business on
April __, 2002 (the "Record Date"), will be entitled to vote at the Meeting. As
of the Record Date, there were
14
____________ shares of Lepercq issued and
outstanding, with each whole share entitled to one vote and each fraction of a
share entitled to a proportionate fraction of a vote.
As of the Record Date, the officers and trustees of Lepercq, as a
group, owned ___% of the outstanding shares of Lepercq.
As of the Record Date, the following person(s) owned of record or
beneficially 5% or more of the outstanding shares of Lepercq:
Name and Address % of Ownership Nature of Ownership
- ---------------- -------------- -------------------
%
%
%
As of the Record Date, the following person(s) owned of record or
beneficially 5% or more of the outstanding shares of Tocqueville:
Name and Address % of Ownership Nature of Ownership
- ---------------- -------------- -------------------
%
%
%
If the accompanying proxy is executed and returned in time for the
Meeting, the shares covered thereby will be voted in accordance with the
instructions thereon. In the absence of any instructions, such proxy will be
voted to approve the Plan. Any shareholder giving a proxy may revoke it at any
time before the Meeting by submitting to Lepercq a written notice of revocation
or a subsequently executed proxy, or by attending the Meeting and voting in
person.
If a proxy represents a broker "non-vote" (that is, a proxy from a
broker or nominee indicating that such person has not received instructions from
the beneficial owner or other person entitled to vote shares on a particular
matter with respect to which the broker or nominee does not have discretionary
power) or is marked with an abstention (collectively, "abstentions"), the shares
represented thereby will be considered to be present at the meeting for purposes
of determining the existence of a quorum for the transaction of business. These
broker non-votes and abstentions will not be treated as votes in favor of the
Plan.
Quorum and Adjournments
The presence of the holders of a majority of the outstanding shares of
Lepercq, in person or by proxy, constitutes a quorum. However, the mere presence
of a quorum at the Meeting may not be sufficient to approve one or more of the
proposals. If at the time any session of the
15
Meeting is called to order a quorum is not present, in person or by proxy, the
persons named as proxies may vote those proxies which have been received to
adjourn the Meeting to a later date. In the event that a quorum is present but
sufficient votes in favor of one or more of the proposals have not been
received, the persons named as proxies may propose one or more adjournments of
the Meeting to permit further solicitation of proxies with respect to any such
proposal. All such adjournments will require the affirmative vote of a majority
of the shares present in person or by proxy at the session of the Meeting to be
adjourned. The persons named as proxies will vote those proxies which they are
entitled to vote in favor of the proposal, in favor of such an adjournment, and
will vote those proxies required to be voted against the proposal, against any
such adjournment. A vote may be taken on one or more of the proposals in this
proxy statement prior to any such adjournment if sufficient votes for its
approval have been received and it is otherwise appropriate.
Appraisal Rights
Under the Commonwealth of Massachusetts and the Act, shareholders do
not have any rights of share appraisal. Shareholders have the right to redeem
their shares of Lepercq at net asset value at any time until the close of
business on the business day prior to the Closing Date of the Reorganization
and, thereafter, on any business day shareholders may redeem at net asset value
their shares of Tocqueville acquired by them in the Reorganization.
FINANCIAL STATEMENTS
The financial statements of the Funds for the fiscal years ended
October 31, 2001 for Tocqueville and December 31, 2001 for Lepercq, contained in
the Funds' 2001 Annual Reports to shareholders, have been audited by
PricewaterhouseCoopers LLP for Tocqueville and KPMG LLP for Lepercq, independent
auditors, as stated in their reports, which are incorporated herein by
reference.
OTHER MATTERS
As a Massachusetts business trust, Lepercq is not required, and does
not intend, to hold regular annual meetings. Shareholders who wish to present
proposals at any future shareholder meeting must present such proposals to the
Board at a reasonable time prior to the solicitation of any shareholder proxy.
The management does not know of any matters to be presented at this
Special Meeting of Shareholders other than that mentioned in this Proxy
Statement. If any matters properly come before the meeting, the shares
represented by proxies will be voted with respect thereto in accordance with the
best judgment of the person or persons voting the proxies.
By Order of the Board of Trustees
PETER HARTNEDY, Secretary
May __, 2002
16
LEPERCQ-ISTEL FUND
Series of
LEPERCQ-ISTEL TRUST
PROXY FOR SPECIAL SHAREHOLDERS MEETING TO BE HELD MAY __, 2002
The undersigned shareholder of Lepercq-Istel Fund revoking previous proxies,
hereby appoints Tsering Ngudu and Peter Hartnedy, and each of them, as
attorneys-in-fact and proxies of the undersigned, with full power of
substitution, to attend the Meeting of Shareholders of Lepercq-Istel Fund to be
held on May __, 2002 at the offices of Lepercq, de Neuflize & Co.
Incorporated, 1675 Broadway, New York, New York 10019, at 10:00 a.m., Eastern
time, and at all adjournments thereof, and to vote the shares held in the name
of the undersigned on the record date for said meeting on the proposal specified
on the reverse side. As to any other matter, said attorneys-in-fact shall vote
in accordance with their best judgment.
PROXY SOLICITED ON BEHALF OF THE BOARD OF TRUSTEES.
MANAGEMENT RECOMMENDS A VOTE FOR THE PROPOSAL ON THE REVERSE SIDE HEREOF. THE
SHARES REPRESENTED HEREBY WILL BE VOTED AS INDICATED ON THE REVERSE SIDE OR FOR
THE PROPOSAL IF NO CHOICE IS INDICATED.
Please mark your proxy, date and sign it on the other side and return it
promptly in the accompanying envelope which requires no postage if mailed in the
United States.
OVER
17
PROPOSAL
--------
To approve the Agreement and Plan of Reorganization and Liquidation between The
Tocqueville Fund of the Tocqueville Trust ("Tocqueville") and the
Lepercq-Istel Fund Series of the Lepercq-Istel Trust ("Lepercq") which
contemplates the transfer to Tocqueville of all the assets and liabilities of
Lepercq in exchange for shares of Tocqueville and the distribution of such
shares to the shareholders of Lepercq, the liquidation and dissolution of
Lepercq, and the termination of the Lepercq's registration under the
Investment Company Act of 1940, as amended.
FOR ___ AGAINST ___ ABSTAIN ___
Dated: __________________________________, 2002
Month Day
------------------------------------------------------
Signature(s)
------------------------------------------------------
Signature(s)
NOTE: PLEASE SIGN EXACTLY AS YOUR NAME(S) APPEAR HEREON. When signing
as attorney, executor, administrator, trustee, guardian, etc., please give your
full title as such. Joint owners should each sign this proxy. If account is
registered in the name of a corporation, partnership or other entity, a duly
authorized individual must sign on its behalf and give title.
18
STATEMENT OF ADDITIONAL INFORMATION
Relating to the acquisition of the assets of
LEPERCQ-ISTEL FUND
of
LEPERCQ-ISTEL TRUST
1675 Broadway
New York, New York 10019
by and in exchange for shares of
The Tocqueville Fund
THE TOCQUEVILLE TRUST
1675 Broadway
New York, New York 10019
This Statement of Additional Information, relating specifically to the
proposed acquisition of all of the assets of the Lepercq-Istel Fund series of
the Lepercq-Istel Trust ("Lepercq") by The Tocqueville Fund series of The
Tocqueville Trust ("Tocqueville"), consists of this cover page, pro forma
financial statements and the following described documents, each of which is
incorporated by reference herein:
The Statement of Additional Information of Lepercq dated April 28,
2002;
The Statement of Additional Information of Tocqueville dated February
28, 2002;
The Annual Report of Tocqueville for the year ended October 31, 2001;
and
The Annual Report of Lepercq for the year ended December 31, 2001.
This Statement of Additional Information is not a prospectus. A
Combined Proxy Statement/Prospectus dated May __, 2002 relating to the
above-referenced transaction may be obtained from Lepercq, de Neuflize & Co.
Incorporated, 1675 Broadway, New York, New York 10019, (800) 497-1411. This
Statement of Additional Information relates to, and should be read in
conjunction with, such Combined Proxy Statement/Prospectus.
Shown below are financial statements for both Lepercq and Tocqueville
and Pro Forma financial statements for the Combined Fund at October 31, 2001, as
though the reorganization occurred as of that date. The first table presents
Statements of Assets and Liabilities (unaudited) for both Lepercq and
Tocqueville and Pro Forma figures for the Combined Fund. The second table
presents Statements of Operations (unaudited) for both Lepercq and Tocqueville
and Pro Forma figures for the Combined Fund. The third table presents Portfolio
of Investments (unaudited) for both Lepercq and Tocqueville and Pro Forma
figures for the Combined Fund. The tables are followed by the Notes to the Pro
Forma Financial Statements (unaudited).
The date of this Statement of Additional Information is May __, 2002.
1
PRO FORMA FINANCIAL STATEMENTS
Statements of Assets and Liabilities as of October 31, 2001 (Unaudited)
The
Tocqueville (Pro Forma)
Lepercq Fund Adjustments Combined
------------- -------------- ------------- --------------
Assets
Investments, at value(1) $ 19,235,901 $ 51,365,654 $ 70,601,555
Cash 39,354 - 39,354
Receivable for fund shares sold 2,008 2,008
Dividends, interest and other receivables 8,738 20,565 29,303
Prepaid assets 24,846 10,394 35,240
------------- -------------- ------------- --------------
Total Assets $ 19,308,839 $ 51,398,621 $ 70,707,460
------------- -------------- ------------- --------------
Liabilities
Funds advanced by custodian - 197,014 197,014
Payable to Adviser 12,609 17,378 29,987
Accrued distribution fee 2,611 20,957 23,568
Accrued expenses and other liabilities 59,758 74,257 134,015
------------- -------------- ------------- --------------
Total Liabilities 74,978 309,606 384,584
------------- -------------- ------------- --------------
Net Assets $ 19,233,861 $ 51,089,015 $ 70,322,876
------------- -------------- ------------- --------------
Net assets consisted of:
Paid in capital $ 28,424,793 $ 40,669,397 $ 69,094,190
Accumulated net investment income (loss) 281,476 40,335 321,811
Accumulated net realized gain (loss) (7,258,436) 900,765 (6,357,671)
Net unrealized appreciation (depreciation)
on:
Investments (2,213,972) 9,478,518 7,264,546
------------- -------------- ------------- --------------
Net assets $ 19,233,861 $ 51,089,015 $ 70,322,876
Shares of beneficial interest outstanding
(unlimited shares of $0.01 par value
authorized) 1,350,191 3,407,393 (66,659) 4,690,925
Net asset value, offering and redemption
price per share $ 14.25 $ 14.99 $ 14.99
------------- -------------- ------------- --------------
(1)Cost of Investments $ 21,449,873 $ 41,887,137 $ 63,337,010
See Notes to Pro Forma Financial Statements (Unaudited)
2
Statements of Operations for the twelve months ended October 31, 2001
(Unaudited)
The
Tocqueville (Pro Forma)
Lepercq Fund Adjustments Combined
------------ ------------- ------------- -------------
Investment Income:
Dividends* $ 139,602 $ 909,141 $ - $ 1,048,743
Interest 414,202 54,977 - 469,179
Other Income 77,552 - - 77,552
------------ ------------- ------------- -------------
631,356 964,118 - 1,595,474
------------ ------------- ------------- -------------
Expenses:
Investment Adviser's fee 171,332 432,078 - 603,410
Custody fees 8,040 19,181 - 27,221
Fund accounting fees 31,589 26,647 - 58,236
Transfer agent and shareholder services 33,721 24,011 - 57,732
Professional fees 51,294 60,684 (42,937) 69,041
Distribution fees 144,025 57,111 201,136
Administration fee 37,902 86,410 - 124,312
Printing and mailing expense 4,762 13,753 (1,500) 17,015
Registration fees 15,526 17,982 - 33,508
Trustee fees and expenses 14,266 8,810 (10,423) 12,653
Insurance expense 9,875 3,594 (8,594) 4,875
Other 846 4,086 - 4,932
------------ ------------- ------------- -------------
Total expenses before waivers 379,153 841,261 (6,343) 1,214,071
Less: Fees waived (37,686) (50,020) (87,706)
------------ ------------- ------------- -------------
Net expenses 379,153 803,575 (56,363) 1,126,365
------------ ------------- ------------- -------------
Net Investment Income (Loss) 252,203 160,543 56,363 469,109
------------ ------------- ------------- -------------
Realized and Unrealized Gain (Loss):
Net realized gain (loss) on:
Investments (4,610,582) 936,216 - (3,674,366)
Net change in unrealized appreciation
(depreciation) on:
Investments (3,198,401) (7,090,640) - (10,289,041)
------------ ------------- ------------- -------------
Net gain (loss) on investments (7,808,983) (6,154,424) - (13,963,407)
Net Increase (Decrease) in Net Assets
Resulting from Operations $ (7,556,780) $(5,993,881) $ 53,363 $(13,494,298)
------------ ------------- ------------- -------------
*Net of Foreign Taxes Withheld $ (3,817) $ (4,536) $ - $ (8,353)
------------ ------------- ------------- -------------
See Notes to Pro Forma Financial Statements (Unaudited)
3
Portfolio of Investments as of October 31, 2001 (Unaudited)
(Pro Forma)
Lepercq The Tocqueville Fund Combined
Common Stocks - 84.3% Shares Value Shares Value Shares Value
- ----------------------- ------ ----- ------ ----- ------ -----
Advertising - 1.0%
Interpublic Group Companies Inc. $ 30,000 $ 673,500 30,000 $ 673,500
----------- --------- -----------
673,500 673,500
Business Services - 4.2%
American Express Company 15,000 441,450 25,000 735,750 40,000 1,177,200
H&R Block, Inc. 30,000 1,022,400 30,000 1,022,400
Waste Management, Inc. 30,000 735,000 30,000 735,000
------------ ---------- ------------
441,450 2,493,150 2,934,600
Consumer Non-Durables - 4.3%
American Home Products Corp. 20,000 1,116,600 20,000 1,116,600
Bristol-Meyer/Squibb 6,500 347,425 6,500 347,425
Johnson & Johnson 7,000 405,370 7,000 405,370
Merck & Co. 5,000 319,050 5,000 319,050
Pfizer Inc. 8,000 335,200 8,000 335,200
Gilette Co. 15,000 466,350 15,000 466,350
------------ ---------- ------------
1,873,395 1,116,600 2,989,995
Energy - 16.1%
Anadarko Petroleum Corp. 3,500 199,675 10,000 570,500 13,500 770,175
Apache Corp. 4,000 206,400 4,000 206,400
ChevronTexaco Corp. 23,100 2,045,505 23,100 2,045,505
Devon Energy Corporation 10,000 383,000 10,000 383,000
El Paso Corporation 5,000 245,300 5,000 245,300
Exxon Mobil Corporation 20,000 789,000 20,000 789,000
Ivanhoe Energy Inc. (CN) 175,000 249,275 175,000 249,275
Murphy Oil Corp. 30,000 2,385,000 30,000 2,385,000
Nabors Industries 13,000 399,620 13,000 399,620
Ocean Energy 15,000 273,750 15,000 273,750
Schlumberger 8,000 387,360 8,000 387,360
Tesco Corp. (CN) 200,000 1,241,649 200,000 1,241,649
Varco International, Inc. 132,200 1,983,000 132,200 1,983,000
------------ ---------- ------------
2,484,485 8,874,549 11,359,034
Entertainment - 1.3%
Viacom Inc. Cl B 10,000 365,100 10,000 365,100
The Walt Disney Company 16,000 297,440 15,000 278,850 31,000 576,290
------------ ---------- ------------
662,540 278,850 941,390
Finance - 8.8%
American International Group 5,790 455,094 5,790 455,094
Bank of America Corp. 30,000 1,769,700 30,000 1,769,700
Banc One Corp. 5,000 165,950 5,000 165,950
Bank Of New York 15,000 510,150 15,000 510,150
Citigroup, Inc. 40,000 1,820,800 40,000 1,820,800
Mitsubishi Tokyo Financial Group, 200,000 1,498,000 200,000 1,498,000
Inc. - ADR (JP)
------------ ---------- ------------
1,131,194 5,088,500 6,219,694
4
(Pro Forma)
Lepercq The Tocqueville Fund Combined
Common Stocks - (continued) Shares Value Shares Value Shares Value
- --------------------------- ------ ----- ------ ----- ------ -----
Insurance - 4.7%
The Allstate Corp. 50,000 1,569,000 50,000 1,569,000
Humana Inc. 125,000 1,443,750 125,000 1,443,750
IPC Holdings LTD 10,000 281,000 10,000 281,000
---------- ------------
3,293,750 3,293,750
Jewelry Store - 0.8%
Zale Corp. 20,000 572,400 20,000 572,400
---------- ------------
572,400 572,400
Lumber and Wood Products - 1.6%
Longview Fibre Company 100,000 1,100,000 100,000 1,100,000
--------- ------------
1,100,000 1,100,000
Manufacturing - 2.4%
Applied Materials, Inc. 6,000 204,660 6,000 204,660
Olin Corp. 100,000 1,498,000 100,000 1,498,000
------------ ---------- ------------
204,660 1,498,000 1,702,660
Medical Services - 1.3%
McKesson HBOC, Inc. 25,000 924,750 25,000 924,750
---------- ------------
924,750 924,750
Metals & Minerals - 8.7%
Alcoa, Inc. 75,000 2,420,250 75,000 2,420,250
Anglogold Limited-Sponsor ADR 14,000 232,260 14,000 232,260
Barrick Gold Corp. (CN) 100,000 1,559,000 100,000 1,559,000
Inco, Limited (CN) 100,000 1,364,000 100,000 1,364,000
Placer Dome Inc. 15,000 171,150 15,000 171,150
Stillwater Mining Company * 25,000 389,750 25,000 389,750
---------- ------------
6,136,410 6,136,410
Photo Equipment & Supplies - 0.9%
Eastman Kodak Company 25,000 639,250 25,000 639,250
---------- ------------
639,250 639,250
Retail - 1.5%
Gap, Inc. 22,000 287,540 22,000 287,540
Home Depot 12,500 477,875 12,500 477,875
Radioshack Corporation 12,000 299,880 12,000 299,880
----------- ------------
1,065,295 1,065,295
Restaurants - 1.5%
McDonald's Corp. 40,000 1,042,800 40,000 1,042,800
---------- ------------
1,042,800 1,042,800
Technology - 16.0%
Adobe Systems, Inc. 30,000 792,000 30,000 792,000
AOL Time Warner, Inc. 11,500 358,915 11,500 358,915
Autodesk, Inc. 50,000 1,661,000 50,000 1,661,000
The Boeing Company 50,000 1,630,000 50,000 1,630,000
Cisco Systems, Inc. 20,000 338,400 20,000 338,400
General Electric 5,000 182,050 5,000 182,050
5
(Pro Forma)
Lepercq The Tocqueville Fund Combined
Common Stocks - 84.3% Shares Value Shares Value Shares Value
- ----------------------- ------ ----- ------ ----- ------ -----
Honeywell International Inc. 35,000 1,034,250 35,000 1,034,250
Intel Corp. 10,000 244,200 10,000 244,200
International Business Machines Corp. 20,000 2,161,400 20,000 2,161,400
Lucent Technologies 100,000 670,000 100,000 670,000
Nokia Corp - ADR A 10,000 205,100 10,000 205,100
Nortel Networks Corp. 15,000 87,150 15,000 87,150
Sun Microsystems 20,000 203,000 20,000 203,000
Symantec Corp. 10,000 549,900 10,000 549,900
Symbol Technologies Inc. 50,000 642,500 50,000 642,500
Systems and Computer Tech Co. 20,000 245,000 20,000 245,000
Texas Instruments 10,000 279,900 10,000 279,900
------------ ---------- ------------
1,898,715 9,386,050 11,284,765
Toys - 1.3%
Mattel Inc. 50,000 946,500 50,000 946,500
---------- ------------
946,500 946,500
Transportation & Public Utilities - 5.0%
AT&T Corp. 70,000 1,067,500 70,000 1,067,500
Alexander & Baldwin, Inc. 50,000 1,113,500 50,000 1,113,500
FPL Group, Inc. 25,000 1,327,500 25,000 1,327,500
---------- ------------
3,508,500 3,508,500
Utilities - 0.4%
Duke Power 8,000 307,280 8,000 307,280
------------ ------------
307,280 307,280
Unit Investment Trust - 2.4%
Nasdaq-100 Index Tracking Stock 50,000 1,695,000 50,000 1,695,000
---------- ------------
1,695,000 1,695,000
- ------------------------------------------------------------------------------------------------------------
Total Common Stocks (Cost $52,076,739) 10,069,014 49,268,559 59,337,573
- ------------------------------------------------------------------------------------------------------------
(Pro Forma)
Lepercq The Tocqueville Fund Combined
Short-Term Investments - 16.0%
Principal Value Principal Value Principal Value
----------------------------------------------------------------------------------
Repurchase Agreement with Firstar Bank
1.50%, dated 10/31/01, due 11/01/01,
collateralized by U.S. Treasury Bill
valued at $1,019,797
Repurchase proceeds of $999,042 (cost
$999,000) 999,000 999,000 999,000 999,000
U.S. Treasury Bill - 3.40% 11/08/01 600,000 599,751 600,000 599,751
U.S. Treasury Bill -
5.65%11/29/01 5,250,000 5,236,657 5,250,000 5,236,657
U.S. Treasury Bill - 2.29% 12/27/01 500,000 498,344 500,000 498,344
U.S. Treasury - 0.00% 1/31/02 3,950,000 3,930,230 3,950,000 3,930,230
- -----------------------------------------------------------------------------------------------------------------------------
9,200,000 9,166,887 2,199,000 2,097,095 11,399,000 11,263,982
- -----------------------------------------------------------------------------------------------------------------------------
Total Short-Term Investments (Cost
$11,260,271) 9,200,000 9,166,887 2,199,000 2,097,095 11,399,000 11,263,982
- -----------------------------------------------------------------------------------------------------------------------------
Total Investments (Cost $63,337,010) -
100.4% 19,235,901 51,365,654 70,601,555
- -----------------------------------------------------------------------------------------------------------------------------
6
(Pro Forma)
Lepercq The Tocqueville Fund Combined
Principal Value Principal Value Principal Value
------------------------------------------------------------------------------------
------------------------------------------------------------------------------------
Other Assets and Liabilities - (0.4%) (2,040) (276,639) (278,679)
------------------------------------------------------------------------------------
Total Net Assets - 100.0% $19,233,861 $51,089,015 $70,322,876
* Non-income producing security.
- -------------------------------------------------------------------------------------------------------------------------------
Notes to the Pro Forma Financial Statements October 31, 2001 (Unaudited)
1. BASIS OF COMBINATION
The Pro Forma Combined Statement of Assets and Liabilities, including
the Portfolio of Investments ("Pro Forma Statements") as of October 31, 2001,
and the related Combined Statement of Operations for the twelve months ended
October 31, 2001, reflect the accounts of The Tocqueville Fund series of The
Tocqueville Trust ("Tocqueville") and Lepercq-Istel Fund series of the
Lepercq-Istel Trust ("Lepercq"). The Pro Forma Combined Statement of Assets and
Liabilities has been restated to reflect a tax free exchange of Lepercq shares
as of the close of business on October 31, 2001. Tocqueville's adviser,
Tocqueville Asset Management L.P., and/or Tocqueville's distributor, Lepercq, de
Neuflize/Tocqueville Securities, L.P., will pay the cost of the reorganization.
The Pro Forma Statements give effect to the proposed transfer of all
assets and liabilities of Lepercq in exchange for shares of Tocqueville. In
conjunction with the reorganization, Tocqueville is the surviving fund.
The Pro Forma Statements should be read in conjunction with the
historical financial statements of Tocqueville and Lepercq included in their
respective Statements of Additional Information.
2. VALUATION
Investments in securities, including foreign securities, traded on an
exchange or quoted on the over-the-counter market are valued at the last sale
price or, if no sale occurred during the day, at the mean between closing bid
and asked prices, as last reported by a pricing service approved by the
Trustees. When market quotations are not readily available, or when restricted
securities or other assets are being valued, such assets are valued at fair
value as determined in good faith by or under procedures established by the
Trustees. Short-term investments are stated at cost which, together with accrued
interest, approximates fair value.
3. CAPITAL SHARES
The Pro Forma Combined net asset value per share assumes the issuance
of additional shares of Tocqueville which would have been issued at October 31,
2001, in connection with the proposed reorganization. The amount of additional
shares assumed to be issued was calculated based on the October 31, 2001 net
asset value per share of Tocqueville ($14.99).
7
The Pro Forma number of shares outstanding are determined as follows:
Shares of Tocqueville: 3,407,393
Additional Shares to
be issued to Lepercq: 1,283,532
Pro Forma
Shares Outstanding: 4,690,925
The Pro Forma Statements assume that all shares of Lepercq outstanding
on October 31, 2001 were exchanged, tax free, for shares of Tocqueville.
4. PRO FORMA OPERATING EXPENSES
The Pro Forma Statement of Operations assumes expense adjustments based
on the agreements of Tocqueville, the surviving entity. Certain accounts have
been adjusted to reflect the expenses of the combined entity more closely. Pro
Forma operating expenses include the expenses of Tocqueville and Lepercq
combined, adjusted for certain items which are factually supportable. Advisory
fees have been charged to the combined entity based upon the contract in effect
for Tocqueville at the level of assets of the combined fund for the stated
period.
8
EXHIBIT A
AGREEMENT AND PLAN OF REORGANIZATION AND LIQUIDATION
AGREEMENT AND PLAN OF REORGANIZATION AND LIQUIDATION dated this ____
day of _______, 2002, by and between the Lepercq-Istel Fund series of the
Lepercq-Istel Trust (the "Fund"), a Massachusetts business trust, and The
Tocqueville Fund series of The Tocqueville Trust (the "Trust"), a Massachusetts
business trust.
W I T N E S S E T H:
WHEREAS, the parties are each open-end investment management companies;
and
WHEREAS, the parties hereto desire to provide for the acquisition by
the Trust of all of the assets and liabilities of the Fund solely in exchange
for shares of beneficial interest (par value $.01) ("shares") of the Trust,
which shares of the Trust will thereafter be distributed by the Fund pro rata to
its shareholders in complete liquidation and complete cancellation of its
shares;
NOW, THEREFORE, in consideration of the mutual promises herein
contained, the parties agree as follows:
1. The parties hereto hereby adopt an Agreement and Plan of
Reorganization and Liquidation (the "Agreement") pursuant to Section 368(a) of
the Internal Revenue Code of 1986, as amended (the "Code") as follows: The
reorganization will be comprised of the acquisition by the Trust of all of the
properties, assets and liabilities of the Fund solely in exchange for shares of
the Trust, followed by the distribution of such Trust shares to the shareholders
of the Fund in exchange for their shares of the Fund, and the liquidation and
dissolution of the Fund all upon and subject to the terms of the Agreement
hereinafter set forth.
The share transfer books of the Fund will be permanently closed on the
Valuation Date (as hereinafter defined) and only redemption requests made by
shareholders of the Fund pursuant to Section 22(e) of the Investment Company Act
of 1940 (the "Act") received in proper form on or prior to the close of business
on the Valuation Date shall be fulfilled by the Fund; redemption requests
received by the Fund after that date shall be treated as requests for the
redemption of the shares of the Trust to be distributed to the shareholder in
question as provided in Section 5.
2. On the Closing Date (as hereinafter defined), all of the assets and
liabilities of the Fund on that date shall be delivered to the Trust and the
number of shares of the Trust having an aggregate net asset value equal to the
value of the assets of the Fund will be transferred and delivered to the Fund.
3. The net asset value of shares of the Trust and the value of the
assets of the Fund to be transferred shall in each case be determined as of the
close of business of the New York Stock Exchange on the Valuation Date. The
computation of the net asset value of the shares of the Trust and the Fund shall
be done in the manner used by the Trust and the Fund, respectively, in the
computation of such net asset value per share as set forth in their respective
A-1
prospectuses. The methods used by the Trust in such computation shall be applied
to the valuation of the assets of the Fund to be transferred to the Trust.
The Fund shall declare and pay, immediately prior to the Valuation
Date, a dividend or dividends which, together with all previous such dividends,
shall have the effect of distributing to the Fund's shareholders all of the
Fund's investment company taxable income for taxable years ending on or prior to
the Closing Date (computed without regard to any dividends paid) and all of its
net capital gain, if any, realized in taxable years ending on or prior to the
Closing Date (after reduction for any capital loss carry-forward) (the "RIC
dividend").
4. The closing shall be at the office of the Trust at 1675 Broadway,
New York, New York 10019, at 10:00 a.m. on May __, 2002, or at such other time,
date or place as the parties may designate or as provided below (the "Closing
Date"). The business day preceding the Closing Date is herein referred to as the
"Valuation Date".
In the event that on the Valuation Date either party has, pursuant to
the Act or any rule, regulation or order thereunder, suspended the redemption of
its shares or postponed payment therefor, the Closing Date shall be postponed
until the first business day after the date when both parties have ceased such
suspension or postponement; provided, however, that if such suspension shall
continue for a period of 60 days beyond the Valuation Date, then the other party
to this Agreement shall be permitted to terminate this Agreement without
liability to either party for such termination.
5. As soon as practicable after the closing, the Fund shall distribute
on a pro rata basis to those persons who were shareholders of the Fund on the
Valuation Date the shares of the Trust received by the Fund pursuant to the
Agreement in liquidation and cancellation of the outstanding shares of the
Trust. For the purpose of the distribution by the Fund of such shares of the
Trust to its shareholders, the Trust will promptly cause U.S. Bancorp Fund
Services, LLC (the "Transfer Agent") to: (a) credit an appropriate
number of shares of the Trust on the books of the Trust to each shareholder of
the Fund in accordance with a list (the "Shareholder List") of its
shareholders received from the Fund; and (b) confirm an appropriate number of
shares of the Trust to each shareholder of the Fund. No certificates for shares
of the Trust will be issued.
The Shareholder List shall indicate, as of the close of business on the
Valuation Date, the name and address of each shareholder of the Fund, indicating
his or her share balance. The Fund agrees to supply the Shareholder List to the
Trust not later than the Closing Date.
6. As soon as practicable, and in any event within one year after the
closing, the Fund shall (a) effect its dissolution with the proper Massachusetts
authorities, terminate its registration under the Act and file a final annual
report on Form N-SAR with the Securities and Exchange Commission under that Act
and (b) either pay or make provision for payment of all of its liabilities and
taxes.
7. Subsequent to the date of approval by shareholders of the Fund of
the transactions contemplated by this Agreement and prior to the Closing Date,
there shall be coordination between the parties as to their respective
portfolios so that, after the closing, the Trust will be in compliance with all
of its investment policies and restrictions. At the time of
A-2
delivery of portfolio securities for examination as provided in Section 8, the
Fund shall deliver to the Trust two copies of a list setting forth the
securities then owned by the Fund and the respective federal income tax basis
thereof.
8. Portfolio securities or written evidence acceptable to the Trust of
record ownership thereof by The Depository Trust Company or through the Federal
Reserve Book Entry System or any other depository approved by the Fund pursuant
to Rule 17f-4 under the Act shall be presented by the Fund to the Trust or, at
its request, to its custodian bank, for examination no later than five business
days preceding the Closing Date, and shall be delivered, or transferred by
appropriate transfer or assignment documents, by the Fund on the Closing Date to
the Trust duly endorsed in proper form for transfer in such condition as to
constitute good delivery thereof in accordance with the custom of brokers and
shall be accompanied by all necessary state transfer stamps, if any, or a check
for the appropriate purchase price thereof. The cash delivered, if any, shall be
in the form of certified or bank cashiers checks or by bank wire payable to the
order of the Trust. The number of shares (to the nearest whole share) of the
Trust being delivered against the securities and cash of the Fund, registered in
the name of the Fund, shall be delivered to the Fund on the Closing Date. Such
shares shall thereupon be assigned by the Fund to its shareholders so that the
shares of the Trust may be distributed as provided in Section 5.
If, at the Closing Date, the Fund is unable to make delivery under this
Section 8 to the Trust of any of its portfolio securities or cash for the reason
that any of such securities purchased by the Fund, or the cash proceeds of a
sale of portfolio securities, prior to the Closing Date have not yet been
delivered to it or the Fund's custodian, then the delivery requirements of this
Section 8 with respect to said undelivered securities or cash will be waived and
the Fund will deliver to the Trust by or on the Closing Date and with respect to
said undelivered securities or cash executed copies of an agreement or
agreements of assignment in a form reasonably satisfactory to the Trust,
together with such other documents, including a due bill or due bills and
brokers' confirmation slips as may reasonably be required by the Trust.
9. The Trust shall assume the liabilities (including for portfolio
securities purchased which have not settled) of the Fund, but the Fund will,
nevertheless, use its best efforts to discharge all known liabilities, so far as
may be possible, prior to the Closing Date. The expenses of the Fund and the
Trust, respectively, related to the reorganization including legal, accounting,
printing, filing, proxy soliciting and portfolio transfer taxes, if any, will be
borne by the Trust's adviser and/or the distributor.
10. The obligations of the Trust hereunder shall be subject to the
following conditions:
A. The Board of Trustees of the Fund shall have authorized the
execution of this Agreement and the shareholders of the Fund shall have approved
the transactions contemplated herein, and the Fund shall have furnished to the
Trust copies of resolutions to that effect certified by the Secretary or an
Assistant Secretary of the Fund; such shareholder approval shall have been by
the vote of the holders of a majority of the outstanding voting securities of
the Fund entitled to vote at a meeting for which proxies have been solicited by
the Combined Proxy Statement/Prospectus.
A-3
B. The Trust shall have received an opinion dated the Closing Date of
Paul, Hastings, Janofsky & Walker LLP, to the effect that (i) the Fund is a
validly existing Massachusetts business trust under the laws of Massachusetts
with full corporate powers to carry on its business as then being conducted and
to enter into and perform this Agreement; and (ii) all corporate action
necessary to make this Agreement, according to its terms, valid, binding and
enforceable on the Fund and to authorize effectively the transactions
contemplated by this Agreement have been taken by the Fund.
C. The representations and warranties of the Fund contained herein
shall be true and correct at and as of the Closing Date, and the Trust shall
have been furnished with a certificate of the President or the Secretary or the
Treasurer of the Fund, dated the Closing Date, to that effect.
D. On the Closing Date, the Fund shall have furnished to the Trust a
certificate of the Treasurer of the Fund as to the amount of the capital loss
carry-over and net unrealized appreciation or depreciation, if any, with respect
to the Fund as of the Closing Date.
E. A Registration Statement filed by the Trust solely under the
Securities Act of 1933 on Form N-14 and containing a preliminary form of the
Combined Proxy Statement/Prospectus shall have become effective under that Act
not later than April __, 2002.
F. The Trust shall have received an opinion, dated the Closing Date, of
Paul, Hastings, Janofsky & Walker LLP, to the same effect as the opinion
contemplated by Section 11D of this Agreement.
11. The obligations of the Fund hereunder shall be subject to the
following conditions:
A. The Board of Trustees of the Trust shall have authorized the
execution of this Agreement and the transactions contemplated hereby, and the
Trust shall have furnished to the Fund copies of resolutions to that effect
certified by the Secretary or an Assistant Secretary of the Trust.
B. The Fund shall have received an opinion dated the Closing Date of
Paul, Hastings, Janofsky & Walker LLP, to the effect that (i) the Trust is a
validly existing Massachusetts business trust under the laws of Massachusetts
with full corporate powers to carry on its business as then being conducted and
to enter into and perform this Agreement; (ii) all corporate action necessary to
make this Agreement, according to its terms, valid, binding and enforceable upon
the Trust and to authorize effectively the transactions contemplated by this
Agreement have been taken by the Trust, and (iii) the shares of the Trust to be
issued hereunder are duly authorized and when issued will be validly issued,
fully-paid and non-assessable.
C. The representations and warranties of the Trust contained herein
shall be true and correct at and as of the Closing Date, and the Fund shall have
been furnished with a certificate of the President or the Secretary or the
Treasurer of the Trust to that effect dated the Closing Date.
D. The Fund shall have received an opinion of Paul, Hastings, Janofsky
& Walker LLP to the effect that for federal income tax purposes:
A-4
(a) The Fund's transfer of all of its assets to the Trust solely
in exchange for shares of the Trust, followed by the Fund's distribution of
shares of the Trust to the Fund's shareholders as part of the liquidation
of the Fund will qualify as a tax-free "reorganization" within the
meaning of Section 368(a)(1)(C) of the Code. The Fund and the Trust will each be
"a party to a reorganization" within the meaning of Section 368(b) of
the Code;
(b) No gain or loss will be recognized by the shareholders of the Fund
upon the exchange of shares of the Trust for the shares of the Fund (Section
354(a) of the Code);
(c) The Fund will not recognize gain or loss under the provisions of
the Code upon the transfer of all of its assets to the Trust solely in exchange
for shares of the Trust and the Trust's assumption of all of the
liabilities of the Fund (Sections 361(a) and 357(a) of the Code);
(d) The Trust will not recognize gain or loss upon its receipt of all
of the Fund's assets solely in exchange for shares of the Trust (Section
1032(a) of the Code);
(e) The basis of the shares of the Trust received by the shareholders
of the Fund will be the same as the basis in the shares of the Fund surrendered
in exchange therefor (Section 358(a)(1) of the Code);
(f) The holding period of the shares of the Trust received in exchange
for Fund shares by the shareholders of the Fund will include the period that the
shareholders of the Fund held the Fund shares surrendered in exchange therefor,
provided that such Fund shares are held by the shareholders as capital assets on
the date of the exchange (Section 1223(1) of the Code);
(g) The tax basis of the Fund's assets acquired by the Trust will
be the same as the tax basis of such assets to the Fund immediately prior to the
transaction (Section 362(b) of the Code); and
(h) The holding period of the assets of the Fund in the hands of the
Trust will include the period during which those assets were held by the Fund
(Section 1223(2) of the Code).
E. A Registration Statement filed by the Trust under the Securities Act
of 1933 on Form N-14, containing a preliminary form of the Combined Proxy
Statement/Prospectus shall have become effective under that Act not later than
April __, 2002.
12. The Fund hereby represents and warrants that:
(a) The financial statements of the Fund as of December 31, 2001
heretofore furnished to the Trust present fairly the financial position, results
of operations, and changes in net assets of the Fund as of that date, in
conformity with accounting principles generally accepted in the United States of
America applied on a basis consistent with the preceding year; and that from
January 1, 2002 through the date hereof, there have not been, and through the
Closing Date there will not be, any material adverse change in the business or
financial condition of the Fund, it being agreed that a decrease in the size of
the Fund due to a diminution in the value of its portfolio and/or redemption of
its shares shall not be considered a material adverse change;
A-5
(b) The prospectus contained in the Fund's Registration Statement
under the Securities Act of 1933, as amended, is true, correct and complete,
conforms to the requirements of the Securities Act of 1933 and does not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading. The Registration Statement, as amended, was, as of the date of the
filing of the last Post-Effective Amendment, true, correct and complete,
conformed to the requirements of the Securities Act of 1933 and did not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading;
(c) There is no material contingent liability of the Fund and no
material legal, administrative or other proceedings pending or, to the knowledge
of the Fund, threatened against the Fund, not reflected in such prospectus;
(d) There are no material contracts outstanding to which the Fund is a
party other than those ordinary in the conduct of its business;
(e) The Fund is a validly existing Massachusetts business trust;
(f) All federal and other tax returns and reports of the Fund required
by law to be filed have been filed, and all federal and other taxes shown as due
on said returns and reports have been paid or provision shall have been made for
the payment thereof and to the best of the knowledge of the Fund no such return
is currently under audit and no assessment has been asserted with respect to
such returns and to the extent such tax returns with respect to the taxable year
of the Fund ended December 31, 2001 have not been filed, such returns will be
filed when required and the amount of tax shown as due thereon shall be paid
when due;
(g) The Fund has elected to be treated as a regulated investment
company and, for each fiscal year of its operations, the Fund has met the
requirements of Subchapter M of the Code for qualification and treatment as a
regulated investment company and the Fund intends to meet such requirements with
respect to its current taxable year. The Fund is an investment company within
the meaning of Section 368(a)(2)(F)(i) and (iii) of the Code and satisfies the
diversification requirements of Section 368(a)(2)(F)(ii). Not more than 25
percent of the value of the Fund's total assets is invested in the stock
and securities of any one issuer, and not more than 50 percent of the value of
the Fund's total assets is invested in the stock and securities of five or
fewer issuers;
(h) The Fund will transfer to the Trust assets representing at least 90
percent of the fair market value of the net assets and 70 percent of the gross
assets held by the Fund immediately prior to the transaction. In calculating
these percentages, all redemptions and distributions (other than distributions
required pursuant to Section 22(e) of the Act or to enable the Fund to qualify
as a regulated investment company) made by the Fund immediately prior to the
transfer and which are part of the plan of reorganization will be considered as
assets held by the Fund immediately prior to the transfer;
(i) There is no plan or intention by the shareholders of the Fund who
own five percent or more of the Fund's shares, and, to the best of the knowledge
of management of the Fund, there is no plan or intention on the part of the
remaining shareholders of the Fund to sell,
A-6
exchange, or otherwise dispose of a number of shares of the Trust received in
the transaction that would reduce the Fund's shareholders' ownership of shares
of the Trust to a number of shares having a value as of the Closing Date of less
than 50 percent of the value of all of the formerly outstanding stock of the
Fund as of the Closing Date. There are no dissenters' rights in the transaction,
and no cash will be exchanged for stock of the Fund in lieu of fractional shares
of the Trust. Shares of the Fund and shares of the Trust held by a shareholder
of the Fund and otherwise sold, redeemed, or disposed of prior or subsequent to
the transaction will be considered in making this representation;
(j) The Fund will distribute the shares of the Trust and any other
property it receives in this transaction, and its other properties, in pursuance
of the plan of reorganization;
(k) The Fund's liabilities assumed by the Trust and the liabilities to
which the transferred assets of the Fund are subject were incurred in the
ordinary course of its business;
(l) The Fund is not under the jurisdiction of a court in a Title 11 or
similar case within the meaning of Section 368(a)(3)(A) of the Code;
(m) As soon as practicable, but in no event later than 12 months
following the date that all of the assets are transferred to the Trust, the Fund
will be liquidated and dissolved under state law;
(n) The fair market value of the assets of the Fund transferred to the
Trust will equal or exceed the sum of the liabilities assumed by the Trust plus
the amount of liabilities, if any, to which the transferred assets are subject;
(o) The sum of the liabilities of the Fund to be assumed by the Trust
and the expenses of the transaction do not exceed twenty percent of the fair
market value of the assets of the Fund;
13. The Trust hereby represents and warrants that:
(a) The financial statements of the Trust as of October 31, 2001
heretofore furnished to the Fund present fairly the financial position, results
of operations, and changes in net assets of the Trust, as of that date, in
conformity with accounting principles generally accepted in the United States of
America applied on a basis consistent with the preceding year; and that from
November 1, 2001 through the date hereof there have not been, and through the
Closing Date there will not be, any material adverse changes in the business or
financial condition of the Trust, it being understood that a decrease in the
size of the Trust due to a diminution in the value of its portfolio and/or
redemption of its shares shall not be considered a material or adverse change;
(b) The prospectus contained in the Trust's Registration Statement
under the Securities Act of 1933, as amended, is true, correct and complete,
conforms to the requirements of the Securities Act of 1933 and does not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading. The Registration Statement, as amended, was, as of the date of the
filing of the last Post-Effective Amendment, true, correct and complete,
conformed to the requirements of the Securities Act of 1933 and did not contain
any untrue statement of a material fact or omit to state
A-7
a material fact required to be stated therein or necessary to make the
statements therein not misleading;
(c) There is no material contingent liability of the Trust and no
material, legal, administrative or other proceedings pending or, to the
knowledge of the Trust, threatened against the Trust, not reflected in such
prospectus;
(d) There are no material contracts outstanding to which the Trust is a
party other than those ordinary in the conduct of its business and there are not
outstanding options or rights to acquire its shares;
(e) The Trust is a validly existing Massachusetts business trust; has
all necessary and material federal, state and local authorizations to own all
its properties and assets and to carry on its business as now being conducted;
the shares of the Trust which the Trust issues to the Fund pursuant to this
Agreement will be duly authorized, validly issued, fully-paid and
non-assessable; will conform to the description thereof contained in the
Trust's Registration Statement, and will be duly registered under the
Securities Act of 1933 and the states where registration is required; and the
Trust is duly registered under the Act and such registration has not been
revoked or rescinded and is in full force and effect;
(f) All federal and other tax returns and reports of the Trust required
by law to be filed have been filed, and all federal and other taxes shown due on
said returns and reports have been paid or provision shall have been made for
the payment thereof and to the best of the knowledge of the Trust no such return
is currently under audit and no assessment has been asserted with respect to
such returns and to the extent such tax returns with respect to the taxable year
of the Trust ended December 31, 2001 have not been filed, such returns will be
filed when required and the amount of tax shown as due thereon shall be paid
when due;
(g) The shares of the Trust constitute voting stock for purposes of
Sections 368(a)(1)(C) and 368(c) of the Code;
(h) The Trust has elected to be treated as a regulated investment
company and, for each fiscal year of its operations, it has met the requirements
of Subchapter M of the Code for qualification and treatment as a regulated
investment company and it intends to meet such requirements with respect to its
current taxable year. The Trust is an investment company that meets the
requirements of a regulated investment company as defined in Section
368(a)(2)(F)(i) of the Code. Not more than 25 percent of the value of the
Trust's total assets is invested in the stock and securities of any one
issuer, and not more than 50 percent of the value of the Trust's total
assets is invested in the stock and securities of five or fewer issuers;
(i) The Trust has no plan or intention (i) to sell or dispose of any of
the assets transferred by the Fund, except for dispositions made in the ordinary
course of business or dispositions necessary to maintain its status as a
regulated investment company or (ii) to redeem or reacquire any of the shares
issued by it;
(j) After consummation of the transactions contemplated by the
Agreement, the Trust will continue to operate its business in a substantially
unchanged manner;
A-8
(k) Following the transaction, the Trust will continue the historic
business of the Fund or use a significant portion of the Fund's historic
business assets in a business; and
(l) The Trust does not own, directly or indirectly, nor has it owned
during the past five years directly or indirectly, any shares of the Fund.
14. Each party hereby represents to the other that no broker or finder
has been employed by it with respect to this Agreement or the transactions
contemplated hereby. Each party also represents and warrants to the other that
the information concerning it in the Combined Proxy Statement/Prospectus will
not as of its date contain any untrue statement of a material fact or omit to
state a fact necessary to make the statements concerning it therein not
misleading and that the financial statements concerning it will present the
information shown fairly in accordance with generally accepted accounting
principles consistently applied. Each party also represents and warrants to the
other that this Agreement is valid, binding and enforceable in accordance with
the terms and that the execution, delivery and performance of this Agreement
will not result in any violation of, or be in conflict with, any provision of
any charter, by-laws, contract, agreement, judgment, decree or order to which it
is subject or to which it is a party. The Trust hereby represents to and
covenants with the Fund that, if the reorganization becomes effective, the Trust
will treat each shareholder of the Fund who received any of its share of the
Trust as a result of the reorganization as having made the minimum initial
purchase of shares of the Trust received by such shareholder for the purpose of
making additional investments in shares of such class, regardless of the value
of the shares of the Trust received. Each party hereby further represents and
warrants that:
(a) The fair market value of the shares of the Trust received by each
shareholder of the Fund will be approximately equal to the fair market value of
the shares of the Fund surrendered in the exchange;
(b) The Trust's adviser and/or the distributor will pay all of the
expenses, if any, incurred by the Fund and the Trust in connection with this
transaction; and
(c) There is no intercorporate indebtedness existing between the Fund
and the Trust that was issued, acquired, or will be settled at a discount.
15. The Trust agrees that it will prepare and file a Registration
Statement under the Securities Act of 1933 on Form N-14 and which shall contain
a preliminary form of proxy statement and prospectus contemplated by Rule 145
under the Securities Act of 1933. The final form of such proxy statement and
prospectus, as amended, is referred to in this Agreement as the "Combined
Proxy Statement/Prospectus" and that term shall include any prospectus
and/or report to shareholders of the Trust which is included in the material
mailed to the shareholders of the Fund. Each party agrees that it will use its
best efforts to have such Registration Statement declared effective and to
supply such information concerning itself for inclusion in the Combined Proxy
Statement/Prospectus as may be necessary or desirable in this connection.
16. The obligations of the parties under this Agreement shall be
subject to the right of either party to abandon and terminate this Agreement
without liability if the other party breaches any material provision of this
Agreement or if any material legal, administrative or other proceeding shall be
instituted or threatened between the date of this Agreement and the
A-9
Closing Date (i) seeking to restrain or otherwise prohibit the transactions
contemplated hereby and/or (ii) asserting a material liability of either party,
which proceeding has not been terminated or the threat thereof removed prior to
the Closing Date.
17. This Agreement may be executed in several counterparts, each of
which shall be deemed an original, but all taken together shall constitute one
Agreement. The rights and obligations of each party pursuant to this Agreement
shall, however, not be assignable.
18. All prior or contemporaneous agreements and representations are
merged into this Agreement, which constitutes the entire contract between the
parties hereto. No amendment or modification hereof shall be of any force and
effect unless in writing and signed by the parties and no party shall be deemed
to have waived any provision herein for its benefit unless it executes a written
acknowledgment of such waiver.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
A-10
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed and attested by its officers thereunto duly authorized on the date
first set forth above.
The Tocqueville Fund series of
THE TOCQUEVILLE TRUST
By: ______________________________
Title:
Attest:
___________________
Lepercq-Istel Fund series of
LEPERCQ-ISTEL TRUST
By: ______________________________
Title:
Attest:
___________________
A-11
PART C
OTHER INFORMATION
Item 15 Indemnification
Article VIII of the Registrant's Agreement and Declaration of Trust
provides as follows:
The Trust shall indemnify each of its Trustees and officers (including
persons who serve at the Trust's request as directors, officers or trustees of
another organization in which the Trust has any interest as a shareholder,
creditor or otherwise) (hereinafter referred to as a "Covered Person") against
all liabilities and expenses, including but not limited to amounts paid in
satisfaction of judgments, in compromise or as fines and penalties, and counsel
fees reasonably incurred by any Covered Person in connection with the defense or
disposition of any action, suit or other proceeding, whether civil or criminal,
before any court or administrative or legislative body, in which such Covered
Person may be or may have been involved as a party or otherwise or with which
such Covered Person may be or may have been threatened, while in office or
thereafter, by reason of being or having been such a Covered Person except with
respect to any matter as to which such Covered Person shall have been finally
adjudicated in any such action, suit or other proceeding (a) not to have acted
in good faith in the reasonable belief that such Covered Person's action was in
the best interests of the Trust or (b) to be liable to the Trust or its
Shareholders by reason of wilful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of such Covered
Person's office. Expenses, including counsel fees so incurred by any such
Covered Person (but excluding amounts paid in satisfaction of judgments, in
compromise or as fines or penalties) shall be paid from time to time by the
Trust in advance of the final disposition of any such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such Covered Person to repay
amounts so paid to the Trust if it is ultimately determined that indemnification
of such expenses is not authorized under this Article, provided, however, that
either (a) such Covered Person shall have provided appropriate security for such
undertaking, (b) the Trust shall be insured against losses arising from any such
advance payments or (c) either a majority of the disinterested Trustees acting
on the matter (provided that a majority of the disinterested Trustees then in
office act on the matter), or independent legal counsel in a written opinion
shall have determined, based upon a review of readily available facts (as
opposed to a full trial type inquiry) that there is reason to believe that such
Covered Person will be found entitled to indemnification under this Article.
As to any matter disposed of (whether by a compromise payment, pursuant
to a consent decree or otherwise) without an adjudication by a court, or by any
other body before which the proceeding was brought, that such Covered Person
either (a) did not act in good faith in the reasonable belief that his or her
action was in the best interests of the Trust or (b) is liable to the Trust or
its Shareholders by reason of wilful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of his or her office,
indemnification shall be provided if (a) approved as in the best interests of
the Trust, after notice that it involves such indemnification, by at least a
majority of the disinterested Trustees acting on the matter (provided that a
majority of the disinterested Trustees then in office act on the matter) upon a
determination, based upon a review of readily available facts (as opposed to a
full trial type inquiry) that such Covered Person acted in good faith in the
reasonable belief that his or her action was in the best interests of the Trust
and is not liable to the Trust or its Shareholders by reasons of wilful
misfeasance, bad faith, gross negligence or reckless disregard of the duties
involved in the conduct of his or her office, or (b) there has been obtained an
opinion in writing
2
of independent legal counsel, based upon a review of readily available facts (as
opposed to a full trial type inquiry) to the effect that such Covered Person
appears to have acted in good faith in the reasonable belief that his or her
action was in the best interests of the Trust and that such indemnification
would not protect such Covered Person against any liability to the Trust to
which he or she would otherwise be subject by reason of wilful misfeasance, bad
faith, gross negligence or reckless disregard of the duties involved in the
conduct of his or her office. Any approval pursuant to this Section shall not
prevent the recovery from any Covered Person of any amount paid to such Covered
Person in accordance with this Section as indemnification if such Covered Person
is subsequently adjudicated by a court of competent jurisdiction not to have
acted in good faith in the reasonable belief that such Covered Person's action
was in the best interests of the Trust or to have been liable to the Trust or
its Shareholders by reason of wilful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of such Covered
Person's office.
Insofar as indemnification for liability arising under the Securities
Act of 1933 may be permitted to Covered Persons of the Registrant pursuant to
the foregoing provisions, or otherwise, the Registrant has been advised that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid by a Covered
Person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such Covered Person in connection with the securities
being registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the 1933 Act and will be governed by the
final adjudication of such issue.
Item 16 Exhibits
(1) (a) Agreement and Declaration of Trust of the Registrant
(originally filed on Form N-1A to Registration Statement No.
33-8746 on September 15, 1986; re-filed for EDGAR purposes only
with Post-Effective Amendment No. 26 on January 30, 2002,
accession number 0000950130-02-000460, and incorporated by
reference herein).
(b) Amendment to the Agreement and Declaration of Trust of
Registrant (filed with Post-Effective Amendment No. 14 on Form
N-1A to Registration Statement No. 33-8746 on February 28,
1996, accession number 0000922423-96-000107, and incorporated
by reference herein).
(2) By-Laws of the Registrant (originally filed on Form N-1A to
Registration Statement No. 33-8746 on September 15, 1986;
re-filed for EDGAR purposes only with Post-Effective Amendment
No. 26 on January 30, 2002, accession number
0000950130-02-000460, and incorporated by reference herein).
(3) Not Applicable
(4) Agreement and Plan of Reorganization and Liquidation between
the Registrant and the Lepercq-Istel Trust filed herewith as
Appendix A to the Combined Prospectus/Proxy Statement.
3
(5) Form of certificate for shares of beneficial interest, par
value $.01 per share, of the Registrant (originally filed with
Pre-Effective Amendment No. 1 on Form N-1A to Registration
Statement No. 33-8746 on December 2, 1986; re-filed for EDGAR
purposes only with Post-Effective Amendment No. 26 on January
30, 2002, accession number 0000950130-02-000460, and
incorporated by reference herein).
(6) (a) Investment Advisory Agreement between Registrant on behalf
of The Tocqueville Fund and Tocqueville Asset Management L.P.
(filed with Post-Effective Amendment No. 26 on Form N-1A to
Registration Statement No. 33-8746 on January 30, 2002,
accession number 0000950130-02-000460, and incorporated by
reference herein).
(b) Investment Advisory Agreement between Registrant on behalf
of The Tocqueville Small Cap Value Fund and Tocqueville Asset
Management L.P. (filed with Post-Effective Amendment No. 26 on
Form N-1A to Registration Statement No. 33-8746 on January 30,
2002, accession number 0000950130-02-000460, and incorporated
by reference herein).
(c) Investment Advisory Agreement between Registrant on behalf
of The Tocqueville International Value Fund and Tocqueville
Asset Management L.P. (filed with Post-Effective Amendment No.
26 on Form N-1A to Registration Statement No. 33-8746 on
January 30, 2002, accession number 0000950130-02-000460, and
incorporated by reference herein).
(d) Form of Investment Advisory Agreement between Registrant on
behalf of The Tocqueville Gold Fund and Tocqueville Asset
Management L.P. (filed with Post-Effective Amendment No. 19 on
Form N-1A to Registration Statement No. 33-8746 on April 15,
1998, accession number 0000922423-98-000170, and incorporated
by reference herein).
(7) (a) Distribution Agreement between the Registrant and
Tocqueville Securities L.P. (filed with Post-Effective
Amendment No. 14 on Form N-1A to Registration Statement No.
33-8746 on February 28, 1996, accession number
0000922423-96-000107, and incorporated by reference herein).
(8) Not applicable.
(9) (a) Custodian Agreement between Registrant and Firstar Trust
Company (filed with Post-Effective Amendment No. 16 on Form
N-1A to Registration Statement No. 33-8746 on February 28,
1997, accession number 0000922423-97-000170, and incorporated
by reference herein).
(b) Form of Custodian Agreement between Registrant on behalf of
The Tocqueville Gold Fund and Firstar Trust Company (filed with
Post-Effective Amendment No. 19 on Form N-1A to Registration
Statement No. 33-8746 on April 15, 1998, accession number
0000922423-98-000170, and incorporated by reference herein).
(c) Global Custody Tri-Party Agreement among The Chase
Manhattan Bank, Firstar Trust and Registrant (filed with
Post-Effective Amendment No. 26 on
4
Form N-1A to Registration Statement No. 33-8746 on January 30,
2002, accession number 0000950130-02-000460, and incorporated
by reference herein).
(d) Form of Global Custody Tri-Party Agreement among The Chase
Manhattan Bank, Firstar Trust and the Registrant on behalf of
The Tocqueville Gold Fund (filed with Post-Effective Amendment
No. 26 on Form N-1A to Registration Statement No. 33-8746 on
January 30, 2002, accession number 0000950130-02-000460, and
incorporated by reference herein).
(10) (a) Rule 12b-1 Plan for the Class B shares of The Tocqueville
Fund (filed with Post-Effective Amendment No. 14 on Form N-1A
to Registration Statement No. 33-8746 on February 28, 1996,
accession number 0000922423-96-000107, and incorporated by
reference herein).
(b) Rule 12b-1 Plan for the Class B shares of The Tocqueville
Europe Fund (now The Tocqueville International Value Fund's
Rule 12b-1 Plan) (filed with Post-Effective Amendment No. 14 on
Form N-1A to Registration Statement No. 33-8746 on February 28,
1996, accession number 0000922423-96-000107, and incorporated
by reference herein).
(c) Rule 12b-1 Plan for the Class B shares of The Tocqueville
Small Cap Value Fund (filed with Post-Effective Amendment No.
14 on Form N-1A to Registration Statement No. 33-8746 on
February 28, 1996, accession number 0000922423-96-000107, and
incorporated by reference herein).
(d) Rule 12b-1 Plan for The Tocqueville Fund (filed with
Post-Effective Amendment No. 26 on Form N-1A to Registration
Statement No. 33-8746 on January 30, 2002, accession number
0000950130-02-000460, and incorporated by reference herein).
(e) Rule 12b-1 Plan for The Tocqueville Small Cap Value Fund
(filed with Post-Effective Amendment No. 26 on Form N-1A to
Registration Statement No. 33-8746 on January 30, 2002,
accession number 0000950130-02-000460, and incorporated by
reference herein).
(f) Rule 12b-1 Plan for The Tocqueville International Value
Fund (filed with Post-Effective Amendment No. 26 on Form N-1A
to Registration Statement No. 33-8746 on January 30, 2002,
accession number 0000950130-02-000460, and incorporated by
reference herein).
(g) Rule 12b-1 Plan for The Tocqueville Gold Fund (filed with
Post-Effective Amendment No. 26 on Form N-1A to Registration
Statement No. 33-8746 on January 30, 2002, accession number
0000950130-02-000460, and incorporated by reference herein).
(h) Rule 18f-3 Plan for The Tocqueville Trust (filed with
Post-Effective Amendment No. 26 on Form N-1A to Registration
Statement No. 33-8746 on January 30, 2002, accession number
0000950130-02-000460, and incorporated by reference herein).
5
(11) Opinion and Consent of Counsel.*
(12) Opinion and Consent as to tax matters and consequences.*
(13) (a) Administration Agreement between Registrant and Tocqueville
Asset Management L.P. (filed with Post-Effective Amendment No.
14 on Form N-1A to Registration Statement No. 33-8746 on
February 28, 1996, accession number 0000922423-96-000107, and
incorporated by reference herein).
(b) Transfer Agent Agreement between the Registrant and Firstar
Trust Company (filed with Post-Effective Amendment No. 16 on
Form N-1A to Registration Statement No. 33-8746 on February 28,
1997, accession number 0000922423-97-000170, and incorporated
by reference herein).
(c) Fund Accounting Servicing Agreement between the Registrant
and Firstar Trust Company (filed with Post-Effective Amendment
No. 16 on Form N-1A to Registration Statement No. 33-8746 on
February 28, 1997, accession number 0000922423-97-000170, and
incorporated by reference herein).
(d) Fund Sub-Administration Service Agreement (filed with
Post-Effective Amendment No. 25 on Form N-1A to Registration
Statement No. 33-8746 on February 28, 2001, accession number
0000950130-01-001088, and incorporated by reference herein).
(e) Form of Fulfillment Servicing Agreement (filed with
Post-Effective Amendment No. 25 on Form N-1A to Registration
Statement No. 33-8746 on February 28, 2001, accession number
0000950130-01-001088, and incorporated by reference herein).
(14) (a) Consent of PricewaterhouseCoopers LLP
(b) Consent of KPMG LLP
(15) (a) Annual Report for the fiscal year ended October 31, 2001
(filed with Registrant's N-30D filed on January 7, 2002,
accession number 0000950109-02-000114, and incorporated by
reference herein).
(b) Annual Report for the fiscal year ended December 31, 2001
for the Lepercq Istel Trust (filed with N-30D filed on March 8,
2002, accession number 0000898531-02-000088, and incorporated
by reference herein).
(16) Not applicable.
(17) (a) Form of Proxy Card filed herewith as part of the Combined
Proxy Statement/ Prospectus.
(b) Prospectus and Statement of Additional Information for The
Tocqueville Trust (filed with Post-Effective Amendment No. 26
to Registration Statement No.
*To be Filed by Amendment
6
33-8746 on January 30, 2002, accession number
0000950130-02-000460, and incorporated by reference herein).
(c) Prospectus and Statement of Information for the
Lepercq-Istel Trust (filed with Post-Effective Amendment No. 80
to Registration Statement No. 2-10841 on April 30, 2002,
accession number 0001116679-02-001008, and incorporated by
reference herein).
Item 17 Undertakings
(1) The undersigned agrees that, prior to any public reoffering of
the securities registered through the use of a prospectus which
is part of this registration statement by any person or party
who is deemed to be an underwriter within the meaning of Rule
145(c) of the Securities Act of 1933, the reoffering prospectus
will contain the information called for by the applicable
registration form for the reofferings by persons who may be
deemed underwriters, in addition to the information called for
by the other items of the applicable form.
(2) The undersigned registrant agrees that every prospectus that is
filed under paragraph (1) above will be filed as part of an
amendment to the registration statement and will not be used
until the amendment is effective, and that, in determining any
liability under the 1933 Act, each post-effective amendment
shall be deemed to be a new registration statement for the
securities offered therein, and the offering of the securities
at that time shall be deemed to be the initial bona fide
offering of them.
7
SIGNATURES
As required by the Securities Act of 1933, this Pre-Effective Amendment
No. 1 to the Registration Statement on Form N-14 has been signed on behalf of
the Registrant, in the City of New York, and State of New York, on the 14th day
of May, 2002.
THE TOCQUEVILLE TRUST
By: /s/ Francois D. Sicart
----------------------------
Francois D. Sicart
Principal Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Pre-Effective Amendment No. 1 to the Registration Statement on Form N-14 has
been signed by the following persons in the capacities and on the dates
indicated.
/s/ Francois D. Sicart Principal Executive Officer May 14, 2002
- ------------------------------------------
Francois D. Sicart and Trustee
/s/ Robert Kleinschmidt President, Principal Operating May 14, 2002
- ------------------------------------------
Robert Kleinschmidt Officer, Principal Financial
Officer and Trustee
/s/ Inge Heckel Trustee May 14, 2002
- ------------------------------------------
Inge Heckel
/s/ Francois Letaconnoux Trustee May 14, 2002
- ------------------------------------------
Francois Letaconnoux
/s/ Lucille G. Bono Trustee May 14, 2002
- ------------------------------------------
Lucille G. Bono
/s/ Larry M. Senderhauf Trustee May 14, 2002
- ------------------------------------------
Larry M. Senderhauf
/s/ Guy A. Main Trustee May 14, 2002
- ------------------------------------------
Guy A. Main
8
/s/ James W. Gerard Trustee May 14, 2002
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James W. Gerard
/s/ James B. Flaherty Trustee May 14, 2002
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James B. Flaherty
9