VOID IF NOT RECEIVED BY THE SUBSCRIPTION AGENT BEFORE 5:00 P.M. NEW YORK TIME
ON THE EXPIRATION DATE
CONTROL NO. _____ MAXIMUM PRIMARY SUBSCRIPTION SHARES AVAILABLE
--------------------------------------
THE GABELLI UTILITY TRUST
SUBSCRIPTION RIGHTS FOR COMMON STOCK
Dear Shareholder:
IN ORDER TO EXERCISE YOUR RIGHTS, YOU
MUST COMPLETE BOTH SIDES OF THE TEAR OFF CARD.
As the registered owner of the Subscription Certificate below, you
are entitled to subscribe for the number of shares of Common Stock, $.001
par value per share, of The Gabelli Utility Trust (the "Fund"), shown above
pursuant to the Primary Subscription Right and upon the terms and
conditions and at the Subscription Price for each share of Common Stock
specified in the Prospectus relating thereto. The Rights represented hereby
include the Over-Subscription Privilege for Rights holders, as described in
the Prospectus. Under the Privilege, any number of additional shares may be
purchased by a Rights holder if such shares are available and the holder's
Primary Subscription Rights have been fully exercised to the extent possible.
Registered owners who are participants in The Gabelli Utility
Trust Automatic Dividend Reinvestment and Voluntary Cash Purchase Plan will
receive their primary and oversubscription shares via an uncertificated
share credit to their existing accounts. To request a stock certificate,
participants in the plan must check Box D on the reverse side of the
Subscription Certificate below. Registered owners who are not participants
in the plan will be automatically issued stock certificates. Stock
certificates for primary share subscriptions will be delivered as soon as
practicable after receipt of the required completed Subscription
Certificate and after full payment has been received and cleared. Stock
certificates for oversubscriptions and confirmation statements reflecting
uncertificated share credits for dividend reinvestment accounts will be
delivered as soon as practicable after the Expiration Date and after all
allocations have been effected.
THE SUBSCRIPTION RIGHT IS TRANSFERABLE
PAYMENT MUST BE IN UNITED STATES DOLLARS. ONLY MONEY ORDERS OR
CHECKS DRAWN ON A BANK LOCATED IN THE CONTINENTAL UNITED STATES (OR FOR
CANADIAN RESIDENTS ONLY, ON A BANK LOCATED IN CANADA) AND MADE PAYABLE TO
THE GABELLI UTILITY TRUST WILL BE ACCEPTED. PLEASE REFERENCE YOUR RIGHTS
CARD CONTROL NUMBER ON YOUR CHECK, MONEY ORDER OR NOTICE OF GUARANTEED
DELIVERY.
--------------------------------------------
VOID IF NOT RECEIVED BY THE SUBSCRIPTION AGENT BEFORE 5:00 P.M.
NEW YORK TIME ON THE EXPIRATION DATE
CONTROL NO. CUSIP NO.
-------------- ------------
__________ RIGHTS REPRESENTED BY THIS
SUBSCRIPTION CERTIFICATE
----------------------------
ACCOUNT NO.
----------------------------
THE GABELLI UTILITY TRUST
SUBSCRIPTION RIGHTS FOR COMMON STOCK
(COMPLETE APPROPRIATE SECTION ON REVERSE SIDE OF THIS FORM)
The registered owner of this Subscription Certificate named below,
or assigns, is entitled to the number of Rights to subscribe for the Common
Stock, $.001 par value, of The Gabelli Utility Trust (the "Fund") shown
above, in the ratio of one share of Common Stock for each three Rights,
pursuant to the Primary Subscription Right and upon the terms and
conditions and at the price for each share of Common Stock specified in the
Prospectus relating thereto. The Rights represented hereby include the
Over-Subscription Privilege for Record Date Stockholders only, as described
in the Prospectus. Under this Privilege, any number of additional shares
may be purchased by a Record Date Stockholder if such shares are available
and the owner's Primary Subscription Rights have been fully exercised to
the extent possible and the pro rata allocation requirements have been
satisfied. Stock certificates for the shares subscribed for pursuant to the
Primary Subscription Right will be delivered as soon as practicable after
receipt of the required completed Subscription Certificate and after full
payment has been received and cleared. Stock certificates for the shares
subscribed for pursuant to the Over-Subscription Privilege will be
delivered as soon as practicable after the Expiration Date and after all
allocations have been effected. Registered owners who are participants in
The Gabelli Utility Trust Automatic Dividend Reinvestment and Voluntary
Cash Purchase Plan will receive their primary and oversubscription shares
via an uncertificated share credit to their existing accounts. To request a
stock certificate, participants in the plan should check Box D on the
reverse side of this form. Any refund in connection with an
over-subscription will be delivered as soon as practicable after the
Expiration Date and after all allocations have been effected. The
Subscription Certificate may be transferred in the same manner and with the
same effect as in the case of a negotiable instrument payable to specific
persons, by duly completing and signing the assignment on the reverse side
hereof. To subscribe pursuant to the Primary Subscription Right or the
Over-Subscription Privilege, six Rights and the Subscription Price are
required for each share of Common Stock. Payment of the $__ per share must
accompany the Subscription Certificate. See reverse side of forms.
To subscribe for your primary shares please complete line "A"
on the card below.
Example:
100 shares = 100 rights (100 rights will be AUTOMATICALLY rounded up to 102
rights, the nearest number of rights divisible by three)
102 rights divided by 3 = 34 primary shares
The maximum number of primary subscription shares would be 34.
A. 34 x $____ = $_____
(No. of shares)
If you are not subscribing for your full Primary Subscription, check box
"E" below and we will attempt to sell any remaining unexercised Rights.
To subscribe for any over-subscription shares please complete line "B"
below.
PLEASE NOTE: Only Record Date Stockholders who have exercised their Primary
Subscription in full may apply for shares pursuant to the Over-Subscription
Privilege.
PAYMENT OF SHARES: Full payment for both the primary and over-subscription
shares or a notice of guaranteed delivery must accompany this subscription.
Please reference your rights card control number on your check, money order
or notice of guaranteed delivery.
If the aggregate Subscription Price paid by a Record Date Stockholder is
insufficient to purchase the number of shares of Common Stock that the
holder indicates are being subscribed for, or if a Record Date Stockholder
does not specify the number of shares of Common Stock to be purchased, then
the Record Date Stockholder will be deemed to have exercised first, the
Primary Subscription Right (if not already fully exercised) and second, the
Over-Subscription Privilege to purchase shares of Common Stock to the full
extent of the payment rendered. If the aggregate Subscription Price paid by
a Record Date Stockholder exceeds the amount necessary to purchase the
number of shares of Common Stock for which the Record Date Stockholder has
indicated an intention to subscribe, then the Record Date Stockholder will
be deemed to have exercised first, the Primary Subscription Right (if not
already fully exercised) and second, the Over-Subscription Privilege to the
full extent of the excess payment tendered.
-------------------------------------------------------
Expiration Date June , 2002 (unless extended) To: EQUISERVE
Attention: Corporate Actions
PLEASE FILL IN ALL APPLICABLE INFORMATION
By Mail:
P.O. Box 9573
Boston, MA 02205-9573
By Overnight Courier:
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
A. Primary Subscription _____________ x $ = $____________
(3 Rights = 1 share) (No. of Shares) (Purchase Price)
B. Over-Subscription
Privilege _____________ x $ = $___________(1)
(Shares) (Purchase Price)
C. Amount of Check Enclosed
= $________
(or amount in notice of guaranteed delivery)
D. IF YOU CURRENTLY PARTICIPATE IN THE FUND'S AUTOMATIC DIVIDEND
REINVESTMENT AND CASH PURCHASE PLAN AND WISH TO RECEIVE A CERTIFICATE,
CHECK HERE [ ]
By Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
With the original Subscription Certificate to be sent by mail, hand or
overnight courier. Confirm facsimile by telephone to (▇▇▇) ▇▇▇-▇▇▇▇
By Hand:
Securities Transfer and Reporting Services, Inc.
c/o EquiServe
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇. ▇▇▇▇ any Remaining Rights [ ]
▇. ▇▇▇▇ all of my Rights [ ]
(1) The Over-Subscription Privilege can be exercised only by a Record
Date Stockholder, as described in the Prospectus, and only if the
Rights initially issued to him are exercised to the fullest extent
possible.
SECTION 1. TO SUBSCRIBE: I hereby irrevocably subscribe for the face amount
of Common Stock indicated as the total of A and B hereon upon the terms and
conditions specified in the Prospectus relating thereto, receipt of which
is acknowledged. I hereby agree that if I fail to pay for the shares of
Common Stock for which I have subscribed, the Fund may exercise any of the
remedies set forth in the Prospectus.
TO SELL: If I have checked either the box on line E or on line F,
I authorize the sale of Rights by the Subscription Agent according to the
procedures described in the Prospectus.
-----------------------------------------
----------------------------------------------------
Signature(s) of Subscriber(s)
-----------------------------------------------------
Address for delivery of Shares if other than shown on front
If permanent change of address, check here [ ]
Please give your telephone number: ( ) _______________
Please give your e-mail address: ___________________
SECTION 2. TO TRANSFER RIGHTS (except pursuant to E or F above):
For value received, ________ of the Rights represented by the
Subscription Certificate are assigned to:
-------------------------------------------------
(Print Full Name of Assignee)
-------------------------------------------------
(Print Full Address)
-------------------------------------------------
Signature(s) of Assignee(s)
IMPORTANT: The Signature(s) must correspond in every particular,
without alteration, with the name(s) as printed on your Subscription
Certificate.
Your signature must be guaranteed by:
(a) a commercial bank or trust company or
(b) a member firm of a domestic stock exchange or
(c) a savings bank or credit union.
Signature
-------------------------------------------------
(Name of Bank or Firm)
Guaranteed By:
-------------------------------------------------
(Signature of Officer and Title)
-------------------------------------------------
NOTICE OF GUARANTEED DELIVERY
FOR SHARES OF COMMON STOCK OF
THE GABELLI UTILITY TRUST
SUBSCRIBED FOR UNDER PRIMARY SUBSCRIPTION
AND THE OVER-SUBSCRIPTION PRIVILEGE
As set forth in the Prospectus, this form or one substantially equivalent
hereto may be used as a means of effecting subscription and payment for all
shares of the Fund's Common Stock (the "Shares") subscribed for under the
Primary Subscription and the Over-Subscription Privilege. Such form may be
delivered by hand or sent by facsimile transmission, overnight courier or
first class mail to the Subscription Agent.
THE SUBSCRIPTION AGENT IS:
EQUISERVE
Attention: Corporate Actions
BY MAIL: BY FACSIMILE:
P.O. Box 9573 (▇▇▇) ▇▇▇-▇▇▇▇
Boston, MA 02205-9573
CONFIRM BY TELEPHONE TO:
(▇▇▇) ▇▇▇-▇▇▇▇
BY OVERNIGHT COURIER: BY HAND:
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Securities Transfer and
Braintree, MA 02184 Reporting Services, Inc.
c/o EquiServe
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS, OR TRANSMISSION OF INSTRUCTIONS
VIA A TELECOPY FACSIMILE NUMBER, OTHER THAN AS SET FORTH ABOVE, DOES NOT
CONSTITUTE A VALID DELIVERY.
The New York Stock Exchange member firm or bank or trust company which
completes this form must communicate this guarantee and the number of
Shares subscribed for in connection with this guarantee (separately
disclosed as to the Primary Subscription and the Over-Subscription
Privilege) to the Subscription Agent and must deliver this Notice of
Guaranteed Delivery of Payment, guaranteeing delivery of (a) payment in
full for all subscribed Shares and (b) a properly completed and signed copy
of the Subscription Certificate (which certificate and full payment must
then be delivered no later than the close of business of the third business
day after the Expiration Date, unless extended) to the Subscription Agent
prior to 5:00 p.m., New York time, on the Expiration Date, unless extended.
Failure to do so will result in a forfeiture of the Rights.
GUARANTEE
The undersigned, a member firm of the New York Stock Exchange or a bank or
trust company having an office or correspondent in the United States,
guarantees delivery to the Subscription Agent by no later than 5:00 p.m.,
New York time, on June , 2002 (unless extended as described in the
Prospectus) of (a) a properly completed and executed Subscription
Certificate and (b) payment of the full Subscription Price for Shares
subscribed for on Primary Subscription and for any additional Shares
subscribed for pursuant to the Over-Subscription Privilege, as subscription
for such Shares is indicated herein or in the Subscription Certificate.
BROKER ASSIGNED CONTROL #
THE GABELLI UTILITY TRUST
1. Primary Subscription Number of Rights to be Number of Primary Shares Payment to be made in
exercised requested for which you connection with Primary
are guaranteeing delivery Shares.
of Rights and Payment
_______________Rights _______________Shares $_______________
(Rights / by 3)
2. Over-Subscription Number of Payment to be made in
Over-Subscription Shares connection with
requested for which you Over-Subscription Shares
are guaranteeing payment
_______________Shares $_______________
3. Totals Total Number of Rights
to be Delivered
_______________Rights $_________________
Total Payment
Method of delivery (circle one)
A. Through DTC
B. Direct to EquiServe, as Subscription Agent. Please reference below the
registration of the Rights to be delivered.
-----------------------------------
-----------------------------------
-----------------------------------
PLEASE SIGN A UNIQUE CONTROL NUMBER FOR EACH GUARANTEE SUBMITTED. This
number needs to be referenced on any direct delivery of Rights or any
delivery through DTC. In addition, please note that if you are guaranteeing
for Over-Subscription Privilege Shares and are a DTC participant, you must
also execute and forward to EquiServe a DTC Participant Over-Subscription
Exercise form.
------------------------------------------------- -----------------------------------------------------
Name of Firm Authorized Signature
------------------------------------------------- -----------------------------------------------------
DTC Participant Number Title
------------------------------------------------- -----------------------------------------------------
Address Name (Please Type or Print)
------------------------------------------------- -----------------------------------------------------
Zip Code Phone Number
------------------------------------------------- -----------------------------------------------------
Contact Name Date
THE GABELLI UTILITY TRUST
RIGHTS OFFERING
DTC PARTICIPANT OVER-SUBSCRIPTION EXERCISE FORM
THIS FORM IS TO BE USED ONLY BY DEPOSITORY TRUST COMPANY PARTICIPANTS TO
EXERCISE THE OVER-SUBSCRIPTION PRIVILEGE IN RESPECT OF RIGHTS WITH RESPECT
TO WHICH THE PRIMARY SUBSCRIPTION WAS EXERCISED AND DELIVERED THROUGH THE
FACILITIES OF THE DEPOSITORY TRUST COMPANY. ALL OTHER EXERCISES OF
OVER-SUBSCRIPTION PRIVILEGES MUST BE EFFECTED BY THE DELIVERY OF THE
SUBSCRIPTION CERTIFICATES.
-----------------------------------
THE TERMS AND CONDITIONS OF THE RIGHTS OFFERING ARE SET FORTH IN THE
COMPANY'S PROSPECTUS DATED, MAY __, 2002 (THE "PROSPECTUS") AND ARE
INCORPORATED HEREIN BY REFERENCE. COPIES OF THE PROSPECTUS ARE AVAILABLE
UPON REQUEST FROM THE COMPANY AND THE SUBSCRIPTION AGENT.
-----------------------------------
VOID UNLESS RECEIVED BY THE SUBSCRIPTION AGENT BY 5:00 PM, NEW YORK CITY
TIME, ON JUNE __, 2002, UNLESS THE OFFER IS EXTENDED (THE "EXPIRATION DATE").
-----------------------------------
1. The undersigned hereby certifies to the Company and the Subscription
Agent that it is a participant in The Depository Trust Company ("DTC") and
that it has either (i) fully exercised its Rights under the Primary
Subscription and delivered such exercised Rights to the Subscription Agent
by means of transfer to the DTC account of the Subscription Agent or (ii)
delivered to the Subscription Agent a Notice of Guaranteed Delivery in
respect of the exercise of the Rights under the Primary Subscription and
will deliver the Rights called for in such Notice of Guaranteed Delivery to
the Subscription Agent by means of transfer to such DTC account of the
Subscription Agent.
2. The undersigned hereby exercises the Over-Subscription Privilege to
purchase, to the extent available, ____________ shares of Common Stock and
certifies to the Company and the Subscription Agent that such
Over-Subscription Privilege is being exercised for the account or accounts
of persons (which may include the undersigned) on whose behalf all Primary
Subscription Rights have been exercised.
3. The undersigned understands that payment of the Subscription Price of $
per share for each share of Common Stock subscribed for pursuant to the
Over-Subscription Privilege must be received by the Subscription Agent at
or before 5:00 p.m., New York City time, on the Expiration Date and
represents that such payment, in the aggregate amount of $________, either
(check appropriate box):
[ ] has been or is being delivered to the Subscription Agent pursuant
to the Notice of Guaranteed Delivery referred to above
or
[ ] is being delivered to the Subscription Agent herewith
or
[ ] has been delivered separately to the Subscription Agent;
and, in the case of funds not delivered pursuant to a
Notice of Guaranteed Delivery, is or was delivered in the
manner set forth below (check appropriate box and
complete information relating thereto):
[ ] uncertified check
[ ] certified check
[ ] bank draft
----------------------------------------
Primary Subscription Confirmation Number
----------------------------------------
DTC Participant Number
----------------------------------------
Name of DTC Participant
For allocation purposes, the total number of record date shares owned by
the persons on whose behalf this Over-Subscription Privilege is being
exercised were ________________________.
Registration into which shares, interest and/or refund checks should be
issued:
Name: ___________________________________
Address: ___________________________________
___________________________________
___________________________________
Certified TIN: ____________________________
By: ___________________________________
Name:
Title:
Contact Name: ____________________________
Phone Number: ____________________________
Dated: , 200_
THE GABELLI UTILITY TRUST
RIGHTS OFFERING
NOMINEE HOLDER OVER-SUBSCRIPTION CERTIFICATION
PLEASE COMPLETE ALL APPLICABLE INFORMATION
By Express Mail or Overnight Courier: By Mail: By Hand:
Securities Transfer and Reporting
Equiserve Equiserve Services, Inc.
Att: Corporate Actions Att: Corporate Actions c/o Equiserve
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ P.O. Box 9573 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
THIS FORM IS TO BE USED ONLY BY NOMINEE HOLDERS TO EXERCISE THE
OVER- SUBSCRIPTION PRIVILEGE IN RESPECT OF RIGHTS WITH RESPECT TO WHICH THE
PRIMARY SUBSCRIPTION PRIVILEGE WAS EXERCISED IN FULL AND DELIVERED THROUGH
THE FACILITIES OF A COMMON DEPOSITORY. ALL OTHER EXERCISES OF
OVER-SUBSCRIPTION PRIVILEGES MUST BE EFFECTED BY THE DELIVERY OF THE
SUBSCRIPTION CERTIFICATES.
THE TERMS AND CONDITIONS OF THE RIGHTS OFFERING ARE SET FORTH IN
THE FUND'S PROSPECTUS DATED MAY __, 2002 (THE "PROSPECTUS") AND ARE
INCORPORATED HEREIN BY REFERENCE. COPIES OF THE PROSPECTUS ARE AVAILABLE
UPON REQUEST FROM THE SUBSCRIPTION AGENT.
VOID UNLESS RECEIVED BY THE SUBSCRIPTION AGENT WITH PAYMENT IN
FULL OR WITH A PROPERLY COMPLETED NOTICE OF GUARANTEED DELIVERY BEFORE 5:00
P.M., NEW YORK CITY TIME, ON JUNE , 2002, UNLESS EXTENDED BY THE FUND (THE
"EXPIRATION DATE").
1. The undersigned hereby certifies to the Subscription Agent that
it is a participant in ____________ [Name of Depository] (the "Depository")
and that it has either (i) exercised the Primary Subscription in respect of
the Rights and delivered such exercised Rights to the Subscription Agent by
means of transfer to the Depository Account of the Subscription Agent or
(ii) delivered to the Subscription Agent a Notice of Guaranteed Delivery in
respect of the exercise of the Primary Subscription Privilege and will
deliver the Rights called for in such Notice of Guaranteed Delivery to the
Subscription Agent by means of transfer to such Depository Account of
Subscription Agent.
2. The undersigned hereby exercises the Over-Subscription
Privilege to purchase, to the extent available, ____________ shares of
Common Stock and certifies to the Subscription Agent that such
Over-Subscription Privilege is being exercised for the account or accounts
of persons (which may include the undersigned) on whose behalf all Primary
Subscription Rights have been exercised.*
3. The undersigned understands that payment of the Subscription
Price of $ per share for each share of Common Stock subscribed for pursuant
to the Over-Subscription Privilege must be received by the Subscription
Agent before 5:00 p.m., New York City time, on the Expiration Date, unless
a Notice of Guaranteed Delivery is used, in which case, payment in full
must be received by the Subscription Agent no later than the close of
business on the third business day after the Expiration Date and represents
that such payment, in the aggregate amount of $________, either
(check appropriate box)
[ ] has been or is being delivered to the Subscription Agent pursuant
to the Notice of Guaranteed Delivery referred to above
or
[ ] is being delivered to the Subscription Agent herewith
or
[ ] has been delivered separately to the Subscription Agent; and, in
the case of funds not delivered pursuant to a Notice of Guaranteed
Delivery, is or was delivered in the manner set forth below (check
appropriate box and complete information relating thereto):
[ ] uncertified check
[ ] certified check
[ ] bank draft
---------------------------------------------------
Primary Subscription Confirmation Number
-----------------------------------------
Name of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Address:
-------------------------------- -----------------------------------------
Depository Participant Number
-----------------------------------------
City State Zip Code
--------------------------------
Contact Name
--------------------------------
Phone Number By:
-------------------------------------
Name:
Title:
Dated: , 200_
* PLEASE ATTACH A BENEFICIAL OWNER LISTING CONTAINING THE RECORD DATE
POSITION OF RIGHTS OWNED, THE NUMBER OF PRIMARY SHARES SUBSCRIBED AND THE
NUMBER OF OVER-SUBSCRIPTION SHARES, IF APPLICABLE, REQUESTED BY EACH SUCH OWNER.
SUBSCRIPTION, DISTRIBUTION AND ESCROW AGENCY AGREEMENT
This Subscription, Distribution and Escrow Agency Agreement (the
"Agreement") is made as of ______________, 2002 between The Gabelli Utility
Trust, a Delaware business trust ("Gabelli") and Equiserve Trust Company,
N.A., a national banking association, as subscription, distribution and
escrow agent ("Agent").
WHEREAS, ▇▇▇▇▇▇▇ proposes to make a subscription offer by issuing
certificates or other evidences of subscription rights, in the form
designated by Gabelli ("Subscription Certificates") to shareholders of
record ("Record Date Shareholders") of its Common Shares of Beneficial
Interest as of a record date specified by ▇▇▇▇▇▇▇ (the "Record Date"),
pursuant to which each Record Date Shareholder will have certain rights
(the "Rights") to subscribe to shares of Gabelli Common Shares of
Beneficial Interest, par value $.001 ("Common Capital Stock"), as described
in and upon such terms as are set forth in the prospectus (the
"Prospectus") included in the Form N-2 Registration Statement filed by
Gabelli with the Securities and Exchange Commission on March 22, 2002, as
amended by any amendment filed with respect thereto (the "Registration
Statement");
WHEREAS, ▇▇▇▇▇▇▇ wishes the Agent to perform certain acts on
behalf of ▇▇▇▇▇▇▇, and the Agent is willing to so act, in connection with
the distribution of the Subscription Certificates and the issuance and
exercise of the Rights to subscribe therein set forth, all upon the terms
and conditions set forth herein;
NOW, THEREFORE, in consideration of the foregoing and of the
mutual agreements set forth herein, the parties agree as follows:
1. Pursuant to resolution of its Board of Trustees Gabelli hereby
appoints and authorizes the Agent to act on its behalf in accordance with
the provisions hereof, and the Agent hereby accepts such appointment and
agrees to so act.
2. (a) Each Subscription Certificate shall evidence the Rights of
the Record Date Shareholder therein named to purchase Common Capital Stock
upon the terms and conditions therein and herein set forth.
(b) Upon the written advice of ▇▇▇▇▇▇▇, signed by its Chairman,
President, Secretary or Assistant Secretary, as to the Record Date, the Agent
shall, from a list of Gabelli Shareholders as of the Record Date to be
prepared by the Agent in its capacity as Transfer Agent of ▇▇▇▇▇▇▇, prepare
and record Subscription Certificates in the names of the Record Date
Shareholders, setting forth the number of Rights to subscribe to Gabelli
Common Capital Stock calculated on the basis of one Right for each share of
Common Capital Stock recorded on the Gabelli books in the name of each such
Record Date Shareholder as of the Record Date. Each Subscription Certificate
shall be dated as of the Record Date and shall be executed manually or by
facsimiles signature of a duly authorized Officer of Gabelli. Upon the
written advice, signed as aforesaid, as to the effective date of the
Registration Statement, the Agent shall as promptly as practicable
countersign and deliver the Subscription Certificates, together with a copy
of the Prospectus, to all Record Date Shareholders. No Subscription
Certificate shall be valid for any purpose unless so executed. Should any
Officer whose signature has been placed upon any Subscription Certificate
cease to hold such office at any time thereafter, such event shall have no
effect on the validity of such Subscription Certificate.
3. (a) Each Subscription Certificate shall be irrevocable and fully
transferable. The Agent shall, in its capacity as Transfer Agent of Gabelli
maintain a register of Subscription Certificates and the holders of record
thereof (each of whom shall be deemed a "Record Date Shareholder" hereunder
for purposes of determining the rights of holders of Subscription
Certificates). Each Subscription Certificate shall, subject to the provisions
thereof, entitle the Record Date Shareholder in whose name it is recorded to
the following:
(1) The right (the "Basic Subscription Right") to
purchase a number of shares of Common Capital Stock equal to one
share of Common Capital Stock for every three Subscription Rights;
provided, however, that no fractional shares of Common Capital
Stock shall be issued; and
(2) The right (the "Oversubscription Right") to purchase
from Gabelli additional shares of Common Capital Stock, subject to
the availability of such shares and to allotment of such shares as
may be available among Record Date Shareholders who exercise
Oversubscription Rights on the basis specified in the Prospectus;
provided, however, that a Record Date Shareholder who has not
exercised his Basic Subscription Rights with respect to the full
number of shares that such Record Date Shareholder is entitled to
purchase by virtue of his Basic Subscription Rights as of the
Expiration Date, if any, shall not be entitled to any
Oversubscription Rights.
(b) A Record Date Shareholder may exercise his Basic Subscription
Rights and Oversubscription Rights by delivery to the Agent at its
corporate office specified in the Prospectus of (i) the Subscription
Certificate with respect thereto, duly executed by such Record Date
Shareholder in accordance with and as provided by the terms and conditions
of the Subscription Certificate, together with (ii) the purchase price of
$__. __ for each share of Common Capital Stock subscribed for by exercise
of such Rights, in United States dollars in cash, by check, or bank draft
drawn on a bank in the continental United States or by postal, telegraphic,
or express money order, in each case payable to the order of Gabelli.
(c) Rights may be exercised at any time after the date of issuance
of the Subscription Certificates with respect thereto but no later than
5:00 P.M. Eastern Daylight Time on such date as ▇▇▇▇▇▇▇ shall designate to
the Agent in writing (the "Expiration Date"). For the purpose of
determining the time of the exercise of any Rights, delivery of any
material to the Agent shall be deemed to occur when such materials are
received at the corporate office of the Agent specified in the Prospectus.
(d) Not withstanding the provisions of Section 3(b) and 3(c)
retarding delivery of an executed Subscription Certificate to the Agent
prior to 5:00 P.M. Eastern Daylight Time on the Expiration Date, if prior
to such time the Agent receives notice of guaranteed delivery by telegram
or otherwise from a bank, trust company or a New York Stock Exchange member
guaranteeing delivery of (i) full payment for shares purchased and
subscribed for by virtue of a Rights Holder's Rights, and (ii) a properly
completed and executed Subscription Certificate, then such exercise of
Basic Subscription Rights and Oversubscription Rights shall be regarded as
timely, subject, however, to receipt of the duly executed Subscription
Certificate and full payment for the Capital Common Stock by the Agent
within five business days after the Expiration Date (as defined in the
Prospectus).
(e) Within ten business days following the Expiration Date (the
"Confirmation Date"), the Agent shall send a confirmation to each
Shareholder (or, if shares of Common Capital Stock on the Record Date are
held by Cede & Co. or any other depository or nominee, to Cede & Co. or
such other depository or nominee), showing (i) the number of shares
acquired pursuant to the Basic Subscription Rights, (ii) the number of
shares, if any, acquired pursuant to the Oversubscription Rights, (iii) the
per share and total purchase price for the shares, (iv) any amount payable
to the Shareholder pursuant to Section 9, and (v) any excess to be refunded
by Gabelli to such Shareholder, in each case based on the Subscription
Price. Any excess payment to be refunded by ▇▇▇▇▇▇▇ to a Shareholder, shall
be mailed by the Agent to the Shareholder within fifteen business days
after the Expiration Date, as provided in Section 6 below.
4. If, after allocation of shares of Common Capital Stock to
persons exercising Basic Subscription Rights, there remain unexercised
Rights, then the Agent shall allot the shares issuable upon exercise of
such unexercised Rights (the "Remaining Shares") to persons exercising
Oversubscription Rights, in the amounts of such oversubscriptions. If the
number of shares for which Oversubscription Rights have been exercised is
greater than the Remaining Shares, the Agent shall allot the Remaining
Shares to the persons exercising Oversubscription Rights pro rata based
solely on the number of Basic Subscription Rights exercised by each of
them. The Agent shall advise ▇▇▇▇▇▇▇ immediately upon the completion of the
allocation set forth above as to the total number of shares subscribed and
distributable.
5. (a) The Agent, will deliver (i) certificates representing those
shares purchased pursuant to exercise of Basic Subscription Rights as soon
as practicable after the corresponding Rights have been validly exercised
and full payment for such shares has been received and cleared; (ii)
certificates representing those shares purchased pursuant to the exercise
of Oversubscription Rights as soon as practicable after the Expiration Date
and after all allocations have been effected; (iii) in the case of each
Rights Holder whose rights were sold pursuant to Section 9, within fifteen
business days after the Expiration Date, proceeds of such sale (provided,
however, that proceeds of sales on behalf of Record ▇▇▇▇ Shareholders whose
Subscription Certificates are undeliverable shall be held by the Agent
until they are either claimed or escheated); (iv) in the case of each
Record Date Shareholder who subscribed, pursuant to the exercise of
Oversubscription Rights, for a greater number of shares than was allotted
to such Record Date Shareholder under Section 4, within fifteen business
days after the Expiration Date, a refund (and interest on such) in the
amount of the difference between the purchase price delivered for the
shares subscribed for pursuant to the exercise of such Oversubscription
Rights and the purchase price of the shares so allotted under Section 4 (an
"Excess Payment").
6. (a) All proceeds received by the Agent from Rights holders in
respect of the exercise of rights shall be held by the Agent, on behalf of
▇▇▇▇▇▇▇, in a segregated, interest-bearing escrow account (the "Escrow
Account"). Pending disbursement in the manner described in Section 6(b)
below, Funds held in the Escrow Account shall be invested by the Agent at
the direction of Gabelli.
(b) The Agent shall deliver all proceeds received in respect of
this exercise of the Rights (including interest earned thereon) to Gabelli
as promptly as practicable, but in no event later than fifteen business
days after the Confirmation Date. Proceeds held in respect of Excess
Payments (including interest earned thereon) shall be refunded to Record
Date Shareholders entitled to such a refund within fifteen business days
after the Expiration Date.
7. The Agent shall promptly advise ▇▇▇▇▇▇▇ as to the date of
delivery of Common Capital Stock hereunder and shall supply Gabelli with a
certified list of Shareholders as of the Record Date.
8. The Agent shall account promptly to Gabelli with respect to
Rights exercised and concurrently account for all monies received and
returned by the Agent with respect to the purchase of shares of Common
Capital Stock upon the exercise of Rights.
9. The Agent shall use its best efforts to sell on the New York
Stock Exchange, on the terms set forth in the Prospectus, (i) all Rights
submitted to it for sale by Rights Holders in accordance with the
Prospectus, provided such Rights are received by the Agent at least one day
prior to the Expiration Date, (ii) all Rights of Record Date Shareholders
whose Subscription Certificates remain unclaimed as a result of being
returned by postal authorities as undeliverable as of one business day
prior to the Expiration Date, and (iii) all rights a Rights Holder is
unable to exercise because such rights represent the right to subscribe for
less than one share. Such sales will be made through a broker or brokers
selected by the Subscription Agent, and the Agent shall deliver the
proceeds of such sales to the Rights Holder net of commissions charged by
such broker or brokers.
10. In the event the Agent does not receive, within five business
days after the Expiration Date, any amount due from a Rights Holder as
specified in Section 3(e), then it shall take such action with respect to
such Rights Holder's Subscription Rights as may be instructed in writing by
▇▇▇▇▇▇▇, including without limitation (i) applying any payment actually
received by it toward the purchase of the greatest whole number of shares
of Common Capital Stock which could be acquired with such payment, (ii)
allocating the shares subject to such Subscription Rights to one or more
other Record Date Shareholders, and (iii) selling all or a portion of the
shares of Common Capital Stock deliverable upon exercise of such
Subscription Rights on the open market, and applying the proceeds thereof
to the amount owed.
11. No Subscription Certificate shall entitle a Rights Holder to
vote or receive dividends or be deemed the holder of shares of Common
Capital Stock for any purpose, nor shall anything contained in any
Subscription Certificate be construed to confer upon any Rights Holder any
of the rights of a shareholder of Gabelli or any right to vote, give or
withhold consent to any action by ▇▇▇▇▇▇▇ (whether upon any
recapitalization, issue of stock, reclassification of stock, consolidation,
merger, conveyance or otherwise), receive notice of meetings of other
action affecting shareholders, or receive dividends or otherwise, until the
Rights evidenced thereby shall have been exercised and the shares of Common
Capital Stock purchasable upon the exercise thereof shall have become
deliverable as provided in this Agreement and in the Prospectus.
12. If any Subscription Certificate is lost, stolen, mutilated, or
destroyed the Agent may, on such terms which will indemnify Gabelli as the
Agent may in its discretion impose (which shall, in the case of a
Subscription Certificate include the surrender thereof), issue a new
Subscription Certificate of like denomination in substitution for the
Subscription Certificate so lost, stolen or mutilated or destroyed.
13. (a) Gabelli covenants that all shares of Common Capital Stock
issued on exercise of Rights set forth in the Subscription Certificates will
be validly issued, fully paid, nonassessable and free of preemptive rights.
(b) ▇▇▇▇▇▇▇ shall furnish to the Agent, upon request, an opinion
of counsel satisfactory to the Agent to the effect that a registration
statement under the Securities Act of 1933, as amended (the "Act"), is then
in effect with respect to its shares of Common Capital Stock issuable upon
exercise of the Rights set forth in the Subscription Certificates. Upon
written advice to the Agent that the Securities and Exchange Commission
shall have issued or threatened to have issued any order preventing or
suspending the use of the Prospectus, or if for any reason it shall be
necessary to amend or supplement the Prospectus in order to comply with the
Act, the Agent shall cease acting hereunder until receipt of written
instructions from ▇▇▇▇▇▇▇ and such assurances as it may reasonably request
that it may comply with such instruction without violations of the Act.
14. (a) Any corporation into which the Agent may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Agent
shall be a party, or any corporation succeeding to the corporate trust
business of the Agent, shall be the successor to the Agent hereunder
without the execution or filing of any of the parties hereto, provided that
such corporation would be eligible for appointment as a successor Agent. In
case at the time such successor to the Agent shall succeed to the agency
created by this Agreement, any of the Subscription Certificates shall have
been countersigned but not delivered, any such successor to the Agent may
adopt the countersignature of the original Agent and deliver such
Subscription Certificates so countersigned, and in case at that time any of
the Subscription Certificates shall not have been countersigned, any
successor to the Agent may countersign such Subscription Certificates
either in the name of the predecessor Agent or in the name of the successor
Agent, and in all such cases such Subscription Certificates shall have the
full force provided in the Subscription Certificates and in this Agreement.
(b) In case at any time the name of the Agent shall be changed and
at such time any of the Subscription Certificates shall have been
countersigned but not delivered, the Agent may adopt the countersignature
under its prior name and deliver Subscription Certificates so
countersigned, and in case at that time any of the Subscription
Certificates shall not have been countersigned, the Agent may countersign
such Subscription Certificates either in its prior name or in its changed
name, and in all such cases such Subscription Certificates shall have the
full force provided in the Subscription Certificates and in this Agreement.
15. ▇▇▇▇▇▇▇ agrees to pay to the Agent from time to time, on
demand of the Agent, reasonable compensation for all services rendered by
it hereunder and also its reasonable expenses and other disbursements
incurred in the administration and execution of this Agreement and the
exercise and performance of its duties hereunder.
16. The Agent undertakes the duties and obligations imposed by this
Agreement upon the following terms and conditions:
(a) Whenever in the performance of its duties under this Agreement
the Agent shall deem it necessary or desirable that any fact or matter be
proved or established, prior to taking or suffering any action hereunder,
such fact or matter (unless other evidence in respect thereof is herein
specifically prescribed) may be deemed to be conclusively proved and
established by a certificate signed by the Chairman of the Board or
President or a Vice President or the Secretary or Assistant Secretary or
the Treasurer of Gabelli delivered to the Agent, and such certificate shall
be full authorization to the Agent for any action taken or suffered in good
faith by it under the provisions of this Agreement in reliance upon such
certificate.
(b) The Agent shall not be responsible for and ▇▇▇▇▇▇▇ shall
indemnify and hold the Agent harmless from and against, any and all losses,
damages, costs, charges, counsel fees, payments, expenses and liability
arising out of or attributable to all actions of the Agent 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.
(c) The Agent shall be liable hereunder only for its own negligence
or willful misconduct.
(d) Nothing herein shall preclude the Agent from acting in any
othercapacity for Gabelli or for any other legal entity.
(e) The Agent is ▇▇▇▇▇▇ authorized and directed to accept
instructions with respect to the performance of its duties hereunder from
any officer or assistant officer of ▇▇▇▇▇▇▇ and to apply to any such
officer of Gabelli for advice or instructions in connection with its
duties, and shall be indemnified and not be liable for any action taken or
suffered by it in good faith in accordance with instructions of any officer
or assistant officer.
(f) The Agent shall be indemnified and shall incur no liability
for or in respect of any action taken, suffered, or omitted by it in
reliance upon any Subscription Certificate or certificate for Common
Capital Stock, instrument of assignment or transfer, power of attorney,
endorsement, affidavit, letter, notice, direction, consent, certificate,
statement, or other paper or document that it reasonably believes to be
genuine and to be signed, executed and, where necessary, verified or
acknowledged, by the proper person or persons.
(g) Neither party to this Agreement shall be liable to the other
party for consequential damages under any provision of this Agreement of
for any consequential damages arising out of any act or failure to act
hereunder.
17. The Agent, may without the consent or concurrence of the
Shareholders in whose names Subscription Certificates are registered, by
supplemental agreement or otherwise, concur with Gabelli in making any
changes or corrections in a Subscription Certificate that it shall have
been advised by counsel (who may be counsel for Gabelli) is appropriate to
cure any ambiguity or to correct any defective or inconsistent provision or
clerical omission or mistake or manifest error therein or herein contained,
and which shall not be inconsistent with the provisions of the Subscription
Certificate except insofar as any such change may confer additional rights
upon the Rights Holders.
18. Assignment
(a) Except as provided in Section c below, neither this Agreement
nor any rights or obligations hereunder may be assigned by either party
without the written consent of the other party.
(b) This Agreement shall inure to the benefit of and be binding
upon the parties and their respective permitted successors and assigns.
(c) [The Agent may, without further consent on the part of
Gabelli, 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 17(c)(1) of the
Securities Exchange Act of 1934 ("Section A(c)(1)"), or (ii) the current
third party vendor utilized by BFDS; provided, however, that the Agent
shall be as fully responsible to Gabelli for the acts and omissions of any
subcontractor as it is for its own acts and omissions.]
19. All the covenants and provisions of this Agreement by or for
the benefit of ▇▇▇▇▇▇▇, or the Agent shall bind and insure to the benefit
of their respective successors and assigns hereunder.
20. The validity, interpretation and performance of this Agreement
shall be governed by the law of the Commonwealth of Massachusetts.
Equiserve Trust Company, N.A. The Gabelli Utility Trust
By: By:
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Vice President Vice President
Dated: Dated:
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