Exhibit 23(h)
FORM OF REGISTRAR,
TRANSFER AGENCY AND SERVICE AGREEMENT
between
THE GABELLI UTILITIES FUND
and
STATE STREET BANK AND TRUST COMPANY
TABLE OF CONTENTS
ARTICLE 1 TERMS OF APPOINTMENT; DUTIES OF THE BANK.............3
ARTICLE 2 FEES AND EXPENSES....................................6
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF THE BANK...........6
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF THE FUND...........7
ARTICLE 5 DATA ACCESS AND PROPRIETARY INFORMATION..............8
ARTICLE 6 INDEMNIFICATION.....................................10
ARTICLE 7 STANDARD OF CARE....................................12
ARTICLE 8 COVENANTS OF THE FUND AND THE BANK..................13
ARTICLE 9 TERMINATION OF AGREEMENT............................14
ARTICLE 10 ASSIGNMENT..........................................15
ARTICLE 11 AMENDMENT...........................................15
ARTICLE 12 MASSACHUSETTS LAW TO APPLY..........................16
ARTICLE 13 FORCE MAJEURE.......................................16
ARTICLE 14 CONSEQUENTIAL DAMAGES...............................16
ARTICLE 15 MERGER OF AGREEMENT.................................16
ARTICLE 16 SURVIVAL............................................17
ARTICLE 17 SEVERABILITY........................................17
ARTICLE 18 COUNTERPARTS........................................17
REGISTRAR, TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the __________ day of ____________, 1999, by and
between The Gabelli Utilities Fund a Delaware business trust, having its
principal office and place of business at ____________(the "Fund"), and STATE
STREET BANK AND TRUST, Gabelli, a Massachusetts trust company having its
principal office and place of business at 000 Xxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000 (the "Bank").
WHEREAS, the Fund desires to appoint the Bank as its registrar,
transfer agent, dividend disbursing agent and agent in connection with
certain other activities and the Bank 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 BANK
1.01 Subject to the terms and conditions set forth in this
Agreement, the Fund hereby employs and appoints the Bank to act as, and the
Bank 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 Bank 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 Bank, the Bank
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 Bank 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 Bank of indemnification satisfactory to
the Bank and protecting the Bank and the Fund, and the
Bank 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
Bank shall: (i) perform all of the customary services of
a registrar, transfer agent, dividend disbursing agent
and agent of the dividend reinvestment anc 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 Bank 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 Bank.
ARTICLE 2 FEES AND EXPENSES
2.01 For the performance by the Bank pursuant to this
Agreement, the Fund agrees to pay the Bank 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 Bank.
2.02 In addition to the fee paid under Section 2.01 above,
the Fund agrees to reimburse the Bank 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 Bank for the items set out in the fee schedule attached
hereto. In addition, any other expenses incurred by the Bank 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 Bank by the Fund at least seven (7) days prior to the mailing
date of such materials.
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF THE BANK
The Bank 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 the Commonwealth of Massachusetts.
3.02 It is duly qualified to carry on its business in the
Commonwealth of Massachusetts.
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 Bank that:
4.01 It is a corporation duly organized and existing and
in good standing under the laws of Maryland.
4.02 It is empowered under applicable laws and by its
Articles of Incorporation and By-Laws to enter into and perform this
Agreement
4.03 All corporate proceedings required by said Articles of
Incorporation and By-Laws have been taken to authorize it to enter into and
perform this Agreement.
4.04 It is a closed-end, 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
Bank.
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 Bank 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 Bank. 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 Bank and (iii) in accordance with the Bank'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 Bank's computer to the Funds' terminal to be
retransmitted to any other computer terminal or other device except as
expressly permitted by the Bank, (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 Bank; and
(f) to honor reasonable written requests made by the Bank to
protect at the Bank's expense the rights of the Bank 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 Bank 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 Bank
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 Bank from time to time.
ARTICLE 6 INDEMNIFICATION
6.01 The Bank shall not be responsible for, and the Fund
shall indemnify and hold the Bank 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 Bank 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 Bank or its agents or
subcontractors of information, records, documents or services which (i) are
received by the Bank 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 Bank
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 Bank 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
Bank under this Agreement, and the Bank 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 Bank, 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 Bank 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 Bank, 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 Bank, the Bank 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 Bank in the defense of such claim or to
defend against said claim in its own name or in the name of the Bank. The
Bank shall in no case confess any claim or make any compromise in any case
in which the Fund may be required to indemnify the Bank except with the
Fund's prior written consent.
ARTICLE 7 STANDARD OF CARE
7.01 The Bank 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 BANK
8.01 The Fund shall promptly furnish to the Bank
the following:
(a) A certified copy of the resolution of the Board of
Directors of the Fund authorizing the appointment of the Bank 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 Bank 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 Bank 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 Bank agrees that all such records
prepared or maintained by the Bank relating to the services to be performed
by the Bank 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 Bank 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 Bank will endeavor to notify
the Fund and to secure instructions from an authorized officer of the Fund
as to such inspection. The Bank 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 Bank 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 Bank 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 Bank 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
16.01 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 Utilities Fund
BY:
State Street Bank and Trust Company
BY:
