As filed with the Securities and Exchange Commission on March 7, 2011

Securities Act File No. 333-166168
Investment Company Act File No. 811-22021

 

 

UNITED STATES SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM N-2

(Check Appropriate Box or Boxes)

þ Registration Statement under the Securities Act of 1933
o Pre-Effective Amendment No. __
þ Post-Effective Amendment No. 2

þ Registration Statement under the Investment Company Act of 1940
þ Amendment No. 5

THE GABELLI HEALTHCARE & WELLNESS^Rx TRUST

(Exact Name of Registrant as Specified in the Declaration of Trust)

One Corporate Center, Rye, New York 10580-1422
(Address of Principal Executive Offices)

Registrant’s Telephone Number, Including Area Code: (800) 422-3554
Agnes Mullady
The Gabelli Healthcare & Wellness^Rx Trust
One Corporate Center
Rye, New York 10580-1422
(914) 921-5100
(Name and Address of Agent for Service)

Peter D. Goldstein, Esq. The Gabelli Healthcare & WellnessRx Trust One Corporate Center Rye, New York 10580-1422 (914) 921-5100		Rose F. DiMartino, Esq. Willkie Farr & Gallagher LLP 787 Seventh Avenue New York, New York 10019 (212) 728-8000

     Approximate date of proposed public offering: From time to time after the effective date of this Registration Statement.

     If any securities being registered on this form will be offered on a delayed or continuous basis in reliance on Rule 415 under the Securities Act of 1933, as amended, other than securities offered in connection with a dividend reinvestment plan, check the following box. þ

 

 

TABLE OF CONTENTS

PART C — OTHER INFORMATION			C-1
Item 25. Financial Statements and Exhibits			C-1
Item 26. Marketing Arrangements			C-3
Item 27. Other Expenses of Issuance and Distribution			C-3
Item 28. Persons Controlled or Under Common Control			C-3
Item 29. Number of Holders of Securities as of December 31, 2010			C-3
Item 30. Indemnification			C-4
Item 31. Business and Other Connections of Investment Adviser			C-6
Item 32. Location of Accounts and Records			C-6
Item 33. Management Services			C-6
Item 34. Undertaking			C-6
SIGNATURES			C-8
EXHIBIT INDEX			C-9
EX-99.A.I
EX-99.B.I
EX-99.D.III
EX-99.D.IV
EX-99.K.I
EX-99.K.II
EX-99.L.III
EX-99.N.III

EXPLANATORY NOTE

     This Post-Effective Amendment No. 2 to the Registration Statement on Form N-2 (File Nos. 333-166168 and 811-22021) of The Gabelli Healthcare & Wellness^Rx Trust (the “Registration Statement”) is being filed pursuant to Rule 462(d) under the Securities Act of 1933, as amended (the “Securities Act”), solely for the purpose of filing exhibits to the Registration Statement. Accordingly, this Post-Effective Amendment No. 2 consists only of a facing page, this explanatory note and Part C of the Registration Statement on Form N-2 setting forth the exhibits to the Registration Statement. This Post-Effective Amendment No. 2 does not modify any other part of the Registration Statement. Pursuant to Rule 462(d) under the Securities Act, this Post-Effective Amendment No. 2 shall become effective immediately upon filing with the Securities and Exchange Commission. The contents of the Registration Statement are hereby incorporated by reference.

PART C — OTHER INFORMATION

Item 25. Financial Statements and Exhibits

1.

Financial Statements

	(a)		None
	(b)		Part A
			None
			Part B
			The following statements of the Registrant are incorporated by reference in Part B of the Registration Statement:
			Schedule of Investments at December 31, 2009
			Statement of Assets and Liabilities as of December 31, 2009
			Statement of Operations for the Year Ended December 31, 2009
			Statement of Changes in Net Assets for the Year Ended December 31, 2009
			Notes to Financial Statements for the Year Ended December 31, 2009
			Report of Independent Registered Public Accounting Firm for the Year Ended December 31, 2009
			Unaudited Schedule of Investments at June 30, 2010
			Unaudited Statement of Assets and Liabilities as of June 30, 2010
			Unaudited Statement of Operations for the Period Ended June 30, 2010
			Unaudited Statement of Changes in Net Assets for the Period Ended June 30, 2010
			Unaudited Notes to Financial Statements for the Period Ended June 30, 2010
			Schedule of Investments at December 31, 2010
			Statement of Assets and Liabilities as of December 31, 2010
			Statement of Operations for the Year Ended December 31, 2010
			Statement of Changes in Net Assets for the Year Ended December 31, 2010
			Notes to Financial Statements for the Year Ended December 31, 2010
			Report of Independent Registered Public Accounting Firm for the Year Ended December 31, 2010

2.

Exhibits

		(a)(i)		Third Amended and Restated Agreement and Declaration of Trust of Registrant (5)

		(a)(ii)		Statement of Preferences of 5.76% Series A Cumulative Preferred Shares (4)
		(b)(i)		Second Amended and Restated By-Laws of Registrant (5)
		(c)		Not applicable
		(d)(i)		Form of Registrant’s Common Share Certificate (1)
		(d)(ii)		Form of Registrant’s Specimen Preferred Share Certificate (4)
		(d)(iii)		Form of Subscription Certificate (5)
		(d)(iv)		Form of Notice of Guaranteed Delivery (5)
		(e)		Automatic Dividend Reinvestment and Voluntary Cash Purchase Plan of Registrant (1)
		(f)		Not applicable
		(g)		Form of Investment Advisory Agreement between Registrant and Gabelli Funds, LLC (1)
		(h)		Not applicable
		(i)		Not applicable
		(j)(i)		Form of Custodian Contract between Registrant and Mellon Trust of New England, N.A. (1)
		(j)(ii)		Form of Custodian Fee Schedule between Registrant and Mellon Trust of New England, N.A. (1)
		(j)(iii)		Form of Registrar, Transfer Agency and Service Agreement between Registrant and Computershare Trust Company, N.A. (4)
		(j)(iv)		Form of Service Fee Schedule between Registrant and Computershare Trust Company, N.A. (1)
		(k)(i)		Form of Subscription Agent Agreement (5)
		(k)(ii)		Form of Information Agent Agreement (5)
		(l)(i)		Opinion and Consent of Richards, Layton & Finger with respect to legality of Common and Preferred Shares (3)
		(l)(ii)		Opinion and Consent of Richards, Layton & Finger with respect to legality of Series A Cumulative Preferred Shares (4)
		(l)(iii)		Opinion and Consent of Richards, Layton & Finger with respect to legality of Common Shares (5)
		(m)		Not applicable
		(n)(i)		Consent of Independent Registered Public Accounting Firm — Fiscal Year 2009 (3)
		(n)(ii)		Powers of Attorney (2)
		(n)(iii)		Consent of Independent Registered Public Accounting Firm — Fiscal Year 2010 (5)
		(o)		Not applicable
		(p)(i)		Purchase Agreement dated April 12, 2007 between Registrant and the Equity Trust Inc. (1)

		(q)		Not applicable
		(r)(i)		Codes of Ethics of the Investment Adviser and of the Fund (2)
		(r)(ii)		Joint Code of Ethics of the Investment Adviser and of the Fund for Chief Executive and Senior Financial Officers of the Gabelli Funds (2)

Item 26. Marketing Arrangements

The information contained under the heading “Plan of Distribution” on page 53 of the Prospectus is incorporated by reference, and any information concerning any underwriters will be contained in the accompanying Prospectus Supplement, if any.

Item 27. Other Expenses of Issuance and Distribution

The following table sets forth the estimated expenses to be incurred in connection with the offering described in this Registration Statement:

Accounting fees		$	12,000
Legal fees			200,000
NYSE listing fees			20,000
Printing expenses			125,000
Postage and mailing fees			79,944
Rights Agent fees			150,000
Miscellaneous			13,056
Total		$	600,000

Item 28. Persons Controlled or Under Common Control

None.

Item 29. Number of Holders of Securities as of December 31, 2010

Title of Class		Number of Record Holders
Common Shares of Beneficial Interest				8,120
Series A Cumulative Preferred Shares				1

Item 30. Indemnification

Article IV of the Registrant’s Amended Agreement and Declaration of Trust provides as follows:

     4.1 No Personal Liability of Shareholders, Trustees, etc. No Shareholder of the Trust shall be subject in such capacity to any personal liability whatsoever to any Person in connection with Trust Property or the acts, obligations or affairs of the Trust. Shareholders shall have the same limitation of personal liability as is extended to stockholders of a private corporation for profit incorporated under the general corporation law of the State of Delaware. No Trustee or officer of the Trust shall be subject in such capacity to any personal liability whatsoever to any Person, other than the Trust or its Shareholders, in connection with Trust Property or the affairs of the Trust, save only liability to the Trust or its Shareholders arising from bad faith, willful misfeasance, gross negligence or reckless disregard for his duty to such Person; and, subject to the foregoing exception, all such Persons shall look solely to the Trust Property for satisfaction of claims of any nature arising in connection with the affairs of the Trust. If any Shareholder, Trustee or officer, as such, of the Trust, is made a party to any suit or proceeding to enforce any such liability, subject to the foregoing exception, he shall not, on account thereof, be held to any personal liability.

     4.2 Mandatory Indemnification. (a) The Trust shall indemnify the Trustees and officers of the Trust (each such person being an “indemnitee”) against any liabilities and expenses, including amounts paid in satisfaction of judgments, in compromise or as fines and penalties, and reasonable counsel fees reasonably incurred by such indemnitee in connection with the defense or disposition of any action, suit or other proceeding, whether civil or criminal, before any court or administrative or investigative body in which he may be or may have been involved as a party or otherwise (other than, except as authorized by the Trustees, as the plaintiff or complainant) or with which he may be or may have been threatened, while acting in any capacity set forth above in this Section 4.2 by reason of his having acted in any such capacity, except with respect to any matter as to which he shall not have acted in good faith in the reasonable belief that his action was in the best interest of the Trust or, in the case of any criminal proceeding, as to which he shall have had reasonable cause to believe that the conduct was unlawful, provided, however, that no indemnitee shall be indemnified hereunder against any liability to any person or any expense of such indemnitee arising by reason of (i) willful misfeasance, (ii) bad faith, (iii) gross negligence (negligence in the case of Affiliated Indemnitees), or (iv) reckless disregard of the duties involved in the conduct of his position (the conduct referred to in such clauses (i) through (iv) being sometimes referred to herein as “disabling conduct”). Notwithstanding the foregoing, with respect to any action, suit or other proceeding voluntarily prosecuted by any indemnitee as plaintiff, indemnification shall be mandatory only if the prosecution of such action, suit or other proceeding by such indemnitee was authorized by a majority of the Trustees.

     (b) Notwithstanding the foregoing, no indemnification shall be made hereunder unless there has been a determination (1) by a final decision on the merits by a court or other body of competent jurisdiction before whom the issue of entitlement to indemnification hereunder was brought that such indemnitee is entitled to indemnification hereunder or, (2) in the absence of such a decision, by (i) a majority vote of a quorum of those Trustees who are neither Interested Persons of the Trust nor parties to the proceeding (“Disinterested Non-Party Trustees”), that the indemnitee is entitled to indemnification hereunder, or (ii) if such quorum is not obtainable or even if obtainable, if such majority so directs, independent legal counsel in a written opinion conclude that the indemnitee should be entitled to indemnification hereunder. All determinations to make advance payments in connection with the expense of defending any proceeding shall be authorized and made in accordance with the immediately succeeding paragraph (c) below.

     (c) The Trust shall make advance payments in connection with the expenses of defending any action with respect to which indemnification might be sought hereunder if the Trust receives a written affirmation by the indemnitee of the indemnitee’s good faith belief that the standards of conduct necessary for indemnification have been met and a written undertaking to reimburse the Trust unless it is subsequently determined that he is entitled such indemnification and if a majority of the Trustees determine that the applicable standards of conduct necessary for indemnification appear to have been met. In addition, at least one of the following conditions must be met: (1) the indemnitee shall provide adequate security for his undertaking, (2) the Trust shall be insured against losses arising by reason of any lawful advances, or (3) a majority of a quorum of the Disinterested Non-Party Trustees, or if a majority vote of such quorum so direct, independent legal counsel in a written opinion, shall conclude, based on a review of readily available facts (as opposed to a full trial-type inquiry), that there is substantial reason to believe that the indemnitee ultimately will be found entitled to indemnification.

     (d) The rights accruing to any indemnitee under these provisions shall not exclude any other right to which he may be lawfully entitled.

     (e) Notwithstanding the foregoing, subject to any limitations provided by the 1940 Act and this Declaration, the Trust shall have the power and authority to indemnify Persons providing services to the Trust to the full extent provided by law as if the Trust were a corporation organized under the Delaware General Corporation Law provided that such indemnification has been approved by a majority of the Trustees.

     4.3 No Duty of Investigation; Notice in Trust Instruments, etc. No purchaser, lender, transfer agent or other person dealing with the Trustees or with any officer, employee or agent of the Trust shall be bound to make any inquiry concerning the validity of any transaction purporting to be made by the Trustees or by said officer, employee or agent or be liable for the application of money or property paid, loaned, or delivered to or on the order of the Trustees or of said officer, employee or agent. Every obligation, contract, undertaking, instrument, certificate, Share, other security of the Trust, and every other act or thing whatsoever executed in connection with the Trust shall be conclusively taken to have been executed or done by the executors thereof only in their capacity as Trustees under this Declaration or in their capacity as officers, employees or agents of the Trust. The Trustees may maintain insurance for the protection of the Trust Property, its Shareholders, Trustees, officers, employees and agents in such amount as the Trustees shall deem adequate to cover possible liability, and such other insurance as the Trustees in their sole judgment shall deem advisable or is required by the 1940 Act.

     4.4 Reliance on Experts, etc. Each Trustee and officer or employee of the Trust shall, in the performance of its duties, be fully and completely justified and protected with regard to any act or any failure to act resulting from reliance in good faith upon the books of account or other records of the Trust, upon an opinion of counsel, or upon reports made to the Trust by any of the Trust’s officers or employees or by any advisor, administrator, manager, distributor, selected dealer, accountant, appraiser or other expert or consultant selected with reasonable care by the Trustees, officers or employees of the Trust, regardless of whether such counsel or other person may also be a Trustee.

Section 9 of the Registrant’s Investment Advisory Agreement provides as follows:

9. Indemnity

     (a) The Fund hereby agrees to indemnify the Adviser and each of the Adviser’s trustees, officers, employees, and agents (including any individual who serves at the Adviser’s request as director, officer, partner, trustee or the like of another corporation) and controlling persons (each such person being an “indemnitee”) against any liabilities and expenses, including amounts paid in satisfaction of judgments, in compromise or as fines and penalties, and counsel fees (all as provided in accordance with applicable corporate law) reasonably incurred by such indemnitee in connection with the defense or disposition of any action, suit or other proceeding, whether civil or criminal, before any court or administrative or investigative body in which he may be or may have been involved as a party or otherwise or with which he may be or may have been threatened, while acting in any capacity set forth above in this paragraph or thereafter by reason of his having acted in any such capacity, except with respect to any matter as to which he shall have been adjudicated not to have acted in good faith in the reasonable belief that his action was in the best interest of the Fund and furthermore, in the case of any criminal proceeding, so long as he had no reasonable cause to believe that the conduct was unlawful, provided, however, that (1) no indemnitee shall be indemnified hereunder against any liability to the Fund or its shareholders or any expense of such indemnitee arising by reason of (i) willful misfeasance, (ii) bad faith, (iii) gross negligence, (iv) reckless disregard of the duties involved in the conduct of his position (the conduct referred to in such clauses (i) through (iv) being sometimes referred to herein as “disabling conduct”), (2) as to any matter disposed of by settlement or a compromise payment by such indemnitee, pursuant to a consent decree or otherwise, no indemnification either for said payment or for any other expenses shall be provided unless there has been a determination that such settlement or compromise is in the best interests of the Fund and that such indemnitee appears to have acted in good faith in the reasonable belief that his action was in the best interest of the Fund and did not involve disabling conduct by such indemnitee and (3) with respect to any action, suit or other proceeding voluntarily prosecuted by any indemnitee as plaintiff, indemnification shall be mandatory only if the prosecution of such action, suit or other proceeding by such indemnitee was authorized by a majority of the full Board of the Fund. Notwithstanding the foregoing the Fund shall not be obligated to provide any such indemnification to the extent such provision would waive any right which the Fund cannot lawfully waive.

     (b) The Fund shall make advance payments in connection with the expenses of defending any action with respect to which indemnification might be sought hereunder if the Fund receives a written affirmation of the indemnitee’s good faith belief that the standard of conduct necessary for indemnification has been met and a written undertaking to reimburse the Fund unless it is subsequently determined that he is entitled to such indemnification and if the trustees of the Fund determine that the facts then known to them would not preclude indemnification. In addition, at

least one of the following conditions must be met: (A) the indemnitee shall provide a security for his undertaking, (B) the Fund shall be insured against losses arising by reason of any lawful advances, or (C) a majority of a quorum of trustees of the Fund who are neither “interested persons” of the Fund (as defined in Section 2(a)(19) of the Act) nor parties to the proceeding (“Disinterested Non-Party Trustees”) or an independent legal counsel in a written opinion, shall determine, based on a review of readily available facts (as opposed to a full trial-type inquiry), that there is reason to believe that the indemnitee ultimately will be found entitled to indemnification.

     (c) All determinations with respect to indemnification hereunder shall be made (1) by a final decision on the merits by a court or other body before whom the proceeding was brought that such indemnitee is not liable by reason of disabling conduct or, (2) in the absence of such a decision, by (i) a majority vote of a quorum of the Disinterested Non-party Trustees of the Fund, or (ii) if such a quorum is not obtainable or even, if obtainable, if a majority vote of such quorum so directs, independent legal counsel in a written opinion.

     The rights accruing to any indemnitee under these provisions shall not exclude any other right to which he may be lawfully entitled.

Item 31. Business and Other Connections of Investment Adviser

The Investment Adviser, a limited liability company organized under the laws of the State of New York, acts as investment adviser to the Registrant. The Registrant is fulfilling the requirement of this Item 31 to provide a list of the officers and directors of the Investment Adviser, together with information as to any other business, profession, vocation or employment of a substantial nature engaged in by the Investment Adviser or those officers and trustees during the past two years, by incorporating by reference the information contained in the Form ADV of the Investment Adviser filed with the commission pursuant to the Investment Advisers Act of 1940 (Commission File No. 801-37706).

Item 32. Location of Accounts and Records

The accounts and records of the Registrant are maintained in part at the office of the Investment Adviser at One Corporate Center, Rye, New York 10580-1422, in part at the offices of the Fund’s custodian, The Bank of New York Mellon Corporation, at 135 Santilli Highway, Everett, Massachusetts 01249, in part at the offices of the Fund’s sub-administrator, BNY Mellon Investment Servicing (US) Inc., at 760 Moore Road, King of Prussia, PA 19406, and in part at the offices of the Fund’s transfer agent, Computershare Trust Company, N.A., 250 Royall Street, Canton, Massachusetts 02021.

Item 33. Management Services

Not applicable.

Item 34. Undertaking

     1. Registrant undertakes to suspend the offering of shares until the Prospectus is amended, if subsequent to the effective date of this Registration Statement, its net asset value declines more than ten percent from its net asset value, as of the effective date of the Registration Statement or its net asset value increases to an amount greater than its net proceeds as stated in the Prospectus.

     2. Not applicable.

     3. Not applicable.

     4. Registrant hereby undertakes:

          (a) to file, during a period in which offers or sales are being made, a post-effective amendment to this Registration Statement:

               (1) to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended (the “1933 Act”);

               (2) to reflect in the Prospectus any facts or events after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement; and

               (3) to include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement.

     (b) that for the purpose of determining any liability under the 1933 Act, each post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof;

     (c) to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering; and

     (d) that, for the purpose of determining liability under the 1933 Act to any purchaser, if the Registrant is subject to Rule 430C: Each prospectus filed pursuant to Rule 497(b), (c), (d) or (e) under the 1933 Act as part of a registration statement relating to an offering, other than prospectuses filed in reliance on Rule 430A under the 1933 Act shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.

     (e) that for the purpose of determining liability of the Registrant under the 1933 Act to any purchaser in the initial distribution of securities:

          The undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant pursuant to this Registration Statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to the purchaser:

          (1) any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 497 under the 1933 Act.

          (2) the portion of any advertisement pursuant to Rule 482 under the 1933 Act relating to the offering containing material information about the undersigned Registrant or its securities provided by or on behalf of the undersigned Registrant; and

          (3) any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser.

     5. Registrant undertakes that, for the purpose of determining any liability under the 1933 Act, the information omitted from the form of Prospectus filed as part of the Registration Statement in reliance upon Rule 430A and contained in the form of Prospectus filed by the Registrant pursuant to Rule 497(h) will be deemed to be a part of the Registration Statement as of the time it was declared effective.

     Registrant undertakes that, for the purpose of determining any liability under the 1933 Act, each post-effective amendment that contains a form of Prospectus will be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time will be deemed to be the initial bona fide offering thereof.

     6. Registrant undertakes to send by first class mail or other means designed to ensure equally prompt delivery, within two business days of receipt of a written or oral request, any Statement of Additional Information constituting Part B of this Registration Statement.

SIGNATURES

     As required by the Securities Act of 1933, as amended, the Registrant has duly caused this Registration Statement on Form N-2 to be signed on its behalf by the undersigned, in the City of Rye, State of New York, on the 7^th day of March, 2011.

     As required by the Securities Act of 1933, as amended, this Form N-2 has been signed below by the following persons in the capacities set forth below on the 7^th day of March, 2011.

NAME		TITLE
/s/ Mario J. Gabelli*		Chairman
Mario J. Gabelli
/s/ Thomas E. Bratter*		Trustee
Thomas E. Bratter
/s/ Anthony J. Colavita*		Trustee
Anthony J. Colavita
/s/ James P. Conn*		Trustee
James P. Conn
/s/ Vincent D. Enright*		Trustee
Vincent D. Enright
/s/ Robert C. Kolodny*		Trustee
Robert C. Kolodny
/s/ Anthonie C. van Ekris*		Trustee
Anthonie C. van Ekris
/s/ Salvatore J. Zizza*		Trustee
Salvatore J. Zizza
/s/ Agnes Mullady Agnes Mullady		President (Principal Executive Officer)
/s/ Agnes Mullady Agnes Mullady		Treasurer (Principal Financial and Accounting Officer)
/s/ Bruce N. Alpert		Attorney-in-Fact
Bruce N. Alpert

EXHIBIT INDEX

Exhibit Number		Description
Ex-.99 (a)(i)		Third Amended and Restated Agreement and Declaration of Trust of Registrant
Ex-.99 (b)(i)		Second Amended and Restated By-Laws of Registrant
Ex-.99 (d)(iii)		Form of Subscription Certificate
Ex-.99 (d)(iv)		Form of Notice of Guaranteed Delivery
Ex-.99 (k)(i)		Form of Subscription Agent Agreement
Ex-.99 (k)(ii)		Form of Information Agent Agreement
Ex-.99 (l)(iii)		Opinion and Consent of Richards, Layton & Finger with respect to legality of Common Shares
Ex-.99 (n)(iii)		Consent of Independent Registered Public Accounting Firm