FORM OF REGISTRAR, TRANSFER AGENCY AND SERVICE AGREEMENT between THE GABELLI HEALTHCARE & WELLNESSRx Trust and
Exhibit 9(c)
FORM OF
REGISTRAR,
TRANSFER AGENCY AND SERVICE AGREEMENT
between
THE GABELLI HEALTHCARE & WELLNESSRx Trust
and
TABLE OF CONTENTS
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ARTICLE 1
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Terms of Appointment; Duties of the ▇▇▇▇▇▇▇▇▇ | ▇ | ||||
ARTICLE 2
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Fees and Expenses | 4 | ||||
ARTICLE 3
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Representations and Warranties of the ▇▇▇▇▇▇▇▇▇ | ▇ | ||||
ARTICLE 4
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Representations and Warranties of the Fund | 5 | ||||
ARTICLE 5
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Data Access and Proprietary Information | 5 | ||||
ARTICLE 6
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Indemnification | 6 | ||||
ARTICLE 7
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Standard of Care | 7 | ||||
ARTICLE 8
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Covenants of the Fund and the ▇▇▇▇▇▇▇▇▇ | ▇ | ||||
ARTICLE 9
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Termination of Agreement | 8 | ||||
ARTICLE 10
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Assignment | 8 | ||||
ARTICLE 11
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Amendment | 9 | ||||
ARTICLE 12
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Massachusetts Law to Apply | 9 | ||||
ARTICLE 13
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Force Majeure | 9 | ||||
ARTICLE 14
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Consequential Damages | 9 | ||||
ARTICLE 15
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Merger of Agreement | 9 | ||||
ARTICLE 16
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Survival | 9 | ||||
ARTICLE 17
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Severability | 9 | ||||
ARTICLE 18
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Counterparts | 9 | ||||
AGREEMENT made as of the day of May ___, 2004, by and between The Gabelli Healthcare &
WellnessRx Trust, a Delaware statutory trust, having its principal office and place of
business at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (the “Fund”), and [ ], N.A., located at [
](the “Registrar”).
WHEREAS, the Fund desires to appoint the Registrar as its registrar, transfer agent, dividend
disbursing agent and agent in connection with certain other activities and the Registrar desires to
accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties hereto
agree as follows:
ARTICLE 1 Terms of Appointment; Duties of the Registrar
1.01 Subject to the terms and conditions set forth in this Agreement, the Fund hereby employs
and appoints the Registrar to act as, and the Registrar agrees to act as registrar, transfer agent
for the Fund’s authorized and issued shares of its common stock (“Shares”), dividend disbursing
agent and agent in connection with any dividend reinvestment plan as set out in the prospectus of
the Fund, corresponding to the date of this Agreement.
1.02 The Registrar agrees that it will perform the following services:
(a) In accordance with procedures established from time to time by agreement between the Fund
and the Registrar, the Registrar shall:
(i) Issue and record the appropriate number of Shares as authorized and hold
such shares in the appropriate Shareholder account (ii) Effect transfers of
Shares by the registered owners thereof upon receipt of appropriate
documentation; (iii) Prepare and transmit payments for dividends and
distributions declared by the Fund; (iv) Act as agent for Shareholders
pursuant to the dividend reinvestment and cash purchase plan as amended from
time to time in accordance with the terms of the agreement to be entered
into between the Shareholders and the Registrar in substantially the form
attached as Exhibit hereto; (v) Issue replacement certificates for those
certificates alleged to have been lost, stolen or destroyed upon receipt by
the Registrar of indemnification satisfactory to the Registrar and
protecting the Registrar and the Fund, and the Registrar at its option, may
issue replacement certificates in place of mutilated stock certificates upon
presentation thereof and without such indemnity.
(b) In addition to and neither in lieu nor in contravention of the services set forth in the
above paragraph (a), the Registrar shall: (i) perform all of the customary services of a registrar,
transfer agent, dividend disbursing agent and agent of the dividend reinvestment and cash purchase
plan as described in Article 1 consistent with those requirements in effect as of the
date of this agreement. The detailed definition, frequency, limitations and associated costs
(if any) set out in the attached fee schedule, include but are not limited to: maintaining all
Shareholder accounts, preparing Shareholder meeting lists, mailing proxies, and mailing Shareholder
reports to current Shareholders, withholding taxes on U.S. resident and non-resident alien accounts
where applicable, preparing and filing U.S. Treasury Department Forms 1099 and other appropriate
forms required with respect to dividends and distributions by federal authorities for all
registered Shareholders.
(c) The Registrar shall provide additional services on behalf of the Fund (i.e., escheatment
services) which may be agreed upon in writing between the Fund and the Registrar.
ARTICLE 2 Fees and Expenses
2.01 For the performance by the Registrar pursuant to this Agreement, the Fund agrees to pay
the Registrar an annual maintenance fee as set out in the initial fee schedule attached hereto.
Such fees and out-of-pocket expenses and advances identified under Section 2.02 below may be
changed from time to time subject to mutual written agreement between the Fund and the Registrar.
2.02 In addition to the fee paid under Section 2.01 above, the Fund agrees to reimburse the
Registrar for out-of-pocket expenses, including but not limited to confirmation production,
postage, forms, telephone, microfilm, microfiche, tabulating proxies, records storage, or advances
incurred by the Registrar for the items set out in the fee schedule attached hereto. In addition,
any other expenses incurred by the Registrar at the request or with the consent of the Fund, will
be reimbursed by the Fund.
2.03 The Fund agrees to pay all fees and reimbursable expenses within five days following the
receipt of the respective billing notice. Postage and the cost of materials for mailing of
dividends, proxies, Fund reports and other mailings to all Shareholder accounts shall be advanced
to the Registrar by the Fund at least seven (7) days prior to the mailing date
of such materials.
ARTICLE 3 Representations and Warranties of the Registrar
The Registrar represents and warrants to the Fund that:
3.01 It is a trust company duly organized and existing and in good standing under the laws of
[ ].
3.02 It is duly qualified to carry on its business in [ ].
3.03 It is empowered under applicable laws and by its Charter and By-Laws to enter into and
perform this Agreement.
3.04 All requisite corporate proceedings have been taken to authorize it to enter into and
perform this Agreement.
3.05 It has and will continue to have access to the necessary facilities, equipment and
personnel to perform its duties and obligations under this Agreement.
ARTICLE 4 Representations and Warranties of the Fund
The Fund represents and warrants to the Registrar that:
4.01 It is a trust organized and existing and in good standing under the laws of Delaware.
4.02 It is empowered under applicable laws and by its Agreement and Declaration of Trust and
By-Laws to enter into and perform this Agreement
4.03 All proceedings required by said Agreement and Declaration of Trust and By-Laws have been
taken to authorize it to enter into and perform this Agreement.
4.04 It is a closed-end, non-diversified investment company registered under the Investment
Company Act of 1940, as amended.
4.05 To the extent required by federal securities laws a registration statement under the
Securities Act of 1933, as amended is currently effective and appropriate state securities law
filings have been made with respect to all Shares of the Fund being offered for sale; information
to the contrary will result in immediate notification to the Registrar.
4.06 It shall make all required filings under federal and state securities laws.
ARTICLE 5 Data Access and Proprietary Information
5.01 The Fund acknowledges that the data bases, computer programs, screen formats, interactive
design techniques, and other information furnished to the Fund by the Registrar are provided solely
in connection with the services rendered under this Agreement and constitute copyrighted trade
secrets or proprietary information of substantial value to the Registrar. Such databases, programs,
formats, designs, techniques and other information are collectively referred to below as
“Proprietary Information.” The Fund agrees that it shall treat all Proprietary Information to any
person or organization except as expressly permitted hereunder. The Fund agrees for itself and its
employees and agents:
(a) to use such programs and databases (i) solely on the Fund computers, or (ii) solely from
equipment at the locations agreed to between the Fund and the Registrar and (iii) in accordance
with the Registrar’s applicable user documentation;
(b) to refrain from copying or duplicating in any way (other than in the normal course of
performing processing on the Fund’s computers) any part of any Proprietary Information;
(c) to refrain from obtaining unauthorized access to any programs, data or other information
not owned by the Fund, and if such access is accidentally obtained, to respect and safeguard the
same Proprietary Information;
(d) to refrain from causing or allowing information transmitted from the Registrar’s computer
to the Funds’ terminal to be retransmitted to any other computer terminal or other device except as
expressly permitted by the Registrar, (such permission not to be unreasonably withheld);
(e) that the Fund shall have access only to those authorized transactions as agreed to between
the Fund and the Registrar; and
(f) to honor reasonable written requests made by the Registrar to protect at the Registrar’s
expense the rights of the Registrar in Proprietary Information at common law and under applicable
statues.
5.02 If the transactions available to the Fund include the ability to originate electronic
instructions to the Registrar in order to (i) effect the transfer or movement of cash or Shares or
(ii) transmit Shareholder information or other information, then in such event the Registrar shall
be entitled to rely on the validity and authenticity of such instruction without undertaking any
further inquiry as long as such instruction is undertaken in conformity with security procedures
established by the Registrar from time to time.
ARTICLE 6 Indemnification
6.01 The Registrar shall not be responsible for, and the Fund shall indemnify and hold the
Registrar harmless from and against, any and all losses, damages, costs, charges, counsel fees,
payments, expenses and liability arising out of or attributable to:
(a) All actions of the Registrar or its agents or subcontractors required to be taken pursuant
to this Agreement; provided that such actions are taken in good faith and without negligence or
willful misconduct.
(b) The Fund’s lack of good faith, negligence or willful misconduct which arise out of the
breach of any representation or warranty of the Fund hereunder.
(c) The reliance on or use by the Registrar or its agents or subcontractors of information,
records, documents or services which (i) are received by the Registrar or its agents or
subcontractors, and (ii) have been prepared, maintained or performed by the Fund or any other
person or firm on behalf of the Fund including but not limited to any previous transfer agent
registrar.
(d) The reliance on, or the carrying out by the Registrar or its agents or subcontractors of
any instructions or requests of the Fund.
(e) The offer or sale of Shares in violation of any requirement under the federal securities
laws or regulations or the securities laws or regulations of any state that such Shares be
registered in such state or in violation of any stop order or other determination or ruling by any
federal agency or any state with respect to the offer or sale of such Shares in such State.
6.02 At any time the Registrar may apply to any officer of the Fund for instructions, and may
consult with legal counsel with respect to any matter arising in connection with the services to be
performed by the Registrar under this Agreement, and the Registrar and its agents or subcontractors
shall not be liable and shall be indemnified by the Fund for any action taken or omitted by it in
reliance upon such instructions or upon the opinion of such counsel. The Registrar, its agents and
subcontractors shall be protected and indemnified in acting upon any paper or document furnished by
or on behalf of the Fund, reasonably believed to be genuine and to have been signed by the proper
person or persons, or upon any instruction, information, data, records or documents provided the
Registrar or its agents or subcontractors by telephone, in person, machine readable input, telex,
CRT data entry or other similar means authorized by the Fund, and shall not be held to have notice
thereof from the Fund. The Registrar, its agents and subcontractors shall also be protected and
indemnified in recognizing stock certificates which are reasonably believed to bear the proper
manual or facsimile signatures of the officers of the Fund, and the proper countersignature of any
former transfer agent or former registrar, or of a co-transfer agent or co-registrar.
6.03 In order that the indemnification provisions contained in this Article 6 shall apply,
upon the assertion of a claim for which the Fund may be required to indemnify the Registrar, the
Registrar shall promptly notify the Fund in writing of such assertion, and shall keep the Fund
advised with respect to all developments concerning such claim. The Fund shall have the option to
participate with the Registrar in the defense of such claim or to defend against said claim in its
own name or in the name of the Registrar. The Registrar shall in no case confess any claim or make
any compromise in any case in which the Fund may be required to indemnify the Registrar except with
the Fund’s prior written consent.
ARTICLE 7 Standard of Care
7.01 The Registrar shall at all times act in good faith and agrees to use its best efforts
within reasonable limits to insure the accuracy of all services performed under this Agreement, but
assumes no responsibility and shall not be liable for loss or damage due to errors unless said
errors are caused by its negligence, bad faith, or willful misconduct of that of its employees.
ARTICLE 8 Covenants of the Fund and the Registrar
8.01 The Fund shall promptly furnish to the Registrar the following:
(a) A certified copy of the resolution of the Board of Directors of the Fund authorizing the
appointment of the Registrar and the execution and delivery of this Agreement.
(b) A copy of the Articles of Incorporation and By-Laws of the Fund and all amendments
thereto.
8.02 The Registrar hereby agrees to establish and maintain facilities and procedures
reasonably acceptable to the Fund for safekeeping of stock certificates, check forms and facsimile
signature imprinting devices, if any; and for the preparation or use, and for keeping account of,
such certificates, forms and devices.
8.03 The Registrar shall keep records relating to the services to be performed hereunder, in
the form and manner as it may deem advisable. To the extent required by Section 31 of the
Investment Company Act of 1940, as amended, and the Rules thereunder, the Registrar agrees that all
such records prepared or maintained by the Registrar relating to the services to be performed by
the Registrar hereunder are the property of the Fund and will be preserved, maintained and made
available in accordance with such Section and Rules, and will be surrendered promptly to the Fund
on and in accordance with its request.
8.04 The Registrar and the Fund agree that all books, records, information and data pertaining
to the business of the other party which are exchanged or received pursuant to the negotiation or
the carrying out of this Agreement shall remain confidential, and shall not be voluntarily
disclosed to any other person, except as may be requested by a governmental entity or as may be
required by law.
8.05 In cases of any requests or demands for the inspection of the Shareholder records of the
Fund, the Registrar will endeavor to notify the Fund and to secure instructions from an authorized
officer of the Fund as to such inspection. The Registrar reserves the right, however, to exhibit
the Shareholder records to any person whenever it is advised by its counsel that it may be held
liable for the failure to exhibit the Shareholder records to such person.
ARTICLE 9 Termination of Agreement
9.01 This Agreement may be terminated by either party upon one hundred twenty (120) days
written notice to the other.
9.02 Should the Fund exercise its right to terminate, all out- of-pocket expenses associated
with the movement of records and material will be borne by the Fund. Additionally, the Registrar
reserves the right to charge for any other reasonable expenses associated with such termination
and/or a charge equivalent to the average of three (3) month’s fees.
ARTICLE 10 Assignment
10.01 Except as provided in Section 10.03 below, neither this Agreement nor any rights or
obligations hereunder may be assigned by either party without the written consent of the other
party.
10.02 This Agreement shall inure to the benefit of and be binding upon the parties and their
respective permitted successors and assigns.
10.03 The Registrar may, without further consent on the part of the Fund, subcontract for the
performance hereof with (i) Boston Financial Data Services, Inc., a Massachusetts corporation
(“BFDS”), which is duly registered as a transfer agent pursuant to Section 17A(c)(2) of the
Securities Exchange Act of 1934 (“Section 17A(c)(2)”), or (ii) a BFDS affiliate duly registered as
a transfer agent pursuant to Section 17A(c)(2), provided, however, that the Registrar shall be as
fully responsible to the Fund for the acts and omissions of any subcontractor as it is for its own
acts and omissions.
ARTICLE 11 Amendment
11.01 This Agreement may be amended or modified by a written agreement executed by both
parties and authorized or approved by a resolution of the Board of Directors of the Fund.
ARTICLE 12 Massachusetts Law to Apply
12.01 This Agreement shall be construed and the provisions thereof interpreted under and in
accordance with the laws of The Commonwealth of Massachusetts.
ARTICLE 13 Force Majeure
13.01 In the event either party is unable to perform its obligations under the terms of this
Agreement because of acts of God, strikes, equipment or transmission failure or damage reasonably
beyond its control, or other causes reasonably beyond its control, such party shall not be liable
for damages to the other for any damages resulting from such failure to perform or otherwise from
such causes.
ARTICLE 14 Consequential Damages
14.01 Neither party to this Agreement shall be liable to the other party for consequential
damages under any provision of this Agreement or for any consequential damages arising out of any
act or failure to act hereunder.
ARTICLE 15 Merger of Agreement
15.01 This Agreement constitutes the entire agreement between the parties hereto and
supersedes any prior agreement with respect to the subject hereof whether oral or written.
ARTICLE 16 Survival
All provisions regarding indemnification, warranty, liability and limits thereon, and
confidentiality and/or protection of proprietary rights and trade secrets shall survive the
termination of this Agreement.
ARTICLE 17 Severability
17.01 If any provision or provisions of this Agreement shall be held to be invalid, unlawful,
or unenforceable, the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired.
ARTICLE 18 Counterparts
18.01 This Agreement may be executed by the parties hereto on any number of counterparts, and
all of said counterparts taken together shall be deemed to constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in their
names and on their behalf by and through their duly authorized officers, as of the day and year
first above written.
| The Gabelli Healthcare & WellnessRx Trust |
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| BY: | ||||
| [Registrar] | ||||
| BY: | ||||