<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 16, 1995
1933 ACT FILE NO. 2-22019
1940 ACT FILE NO. 811-1241
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM N-1A
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933 [X]
POST-EFFECTIVE AMENDMENT NO. 59 [X]
AND
REGISTRATION STATEMENT
UNDER
THE INVESTMENT COMPANY ACT OF 1940 [X]
AMENDMENT NO. 31 [X]
EATON VANCE GROWTH TRUST
----------------------------------------------
(FORMERLY EATON VANCE GROWTH FUND)
(EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER)
24 FEDERAL STREET, BOSTON, MASSACHUSETTS 02110
----------------------------------------------
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
617-482-8260
-------------------------------------
(REGISTRANT'S TELEPHONE NUMBER)
THOMAS OTIS
24 FEDERAL STREET, BOSTON, MASSACHUSETTS 02110
----------------------------------------------
(NAME AND ADDRESS OF AGENT FOR SERVICE)
It is proposed that this filing will become effective on October 30, 1995
pursuant to paragraph (a) of Rule 485 or such earlier date as the Commission
may determine.
The exhibit index required by Rule 483(a) under the Securities Act of 1933
is located on page in the sequential numbering system of the manually
signed copy of this Registration Statement.
The Registrant has filed a Declaration pursuant to Rule 24f-2, and on
October 20, 1994 filed its "Notice" as required by that Rule for the series of
the registrant with a fiscal year ended August 31, 1994.
===============================================================================
<PAGE>
This Amendment to the registration statement on Form N-1A consists of the
following documents and papers:
Cross Reference Sheets required by Rule 481(a) under the Securities Act of
1933
Part A -- The Prospectus of:
EV Marathon Gold & Natural Resources Fund
Part B -- The Statement of Additional Information of:
EV Marathon Gold & Natural Resources Fund
Part C -- Other Information
Signatures
Exhibit Index Required by Rule 483(a) under the Securities Act of 1933
Exhibits
This Amendment is not intended to amend the Prospectuses and Statements of
Additional Information of any Series of the Registrant not identified above.
<PAGE>
EATON VANCE GROWTH TRUST
EV MARATHON GOLD & NATURAL RESOURCES FUND
<TABLE>
<CAPTION>
CROSS REFERENCE SHEET
ITEMS REQUIRED BY FORM N-1A
---------------------------
PART A
ITEM NO. ITEM CAPTION PROSPECTUS CAPTION
------ -------- ---------------------------------------------
<S> <C> <C>
1. ................... Cover Page Cover Page
2. ................... Synopsis Shareholder and Fund Expenses
3. ................... Condensed Financial Information The Fund's Financial Highlights; Performance
Information
4. ................... General Description of Registrant The Fund's Investment Objective; How the Fund
Invests its Assets; Special Considerations;
Organization of the Fund
5. ................... Management of the Fund Management of the Fund
5A.................... Management's Discussion of Fund Not Applicable
Performance
6. ................... Capital Stock and Other Securities Organization of the Fund; Reports to
Shareholders; The Lifetime Investing
Account/Distribution Options; Distributions
and Taxes
7. ................... Purchase of Securities Being Offered Valuing Fund Shares; How to Buy Fund Shares;
Distribution Plan; The Lifetime Investing
Account/Distribution Options; The Eaton
Vance Exchange Privilege; Eaton Vance
Shareholder Services
8. ................... Redemption or Repurchase How to Redeem Fund Shares
9. ................... Pending Legal Proceedings Not Applicable
PART B
ITEM NO. ITEM CAPTION STATEMENT OF ADDITIONAL INFORMATION CAPTION
------ -------- ---------------------------------------------
10. ................... Cover Page Cover Page
11. ................... Table of Contents Table of Contents
12. ................... General Information and History Other Information
13. ................... Investment Objective and Policies Investment Objective and Policies; Investment
Restrictions
14. ................... Management of the Fund Trustees and Officers
15. ................... Control Persons and Principal Holders of Control Persons and Principal Holders of
Securities Securities
16. ................... Investment Advisory and Other Investment Adviser; Distribution Plan;
Services Custodian; Independent Certified Public
Accountants
17. ................... Brokerage Allocation and Other Portfolio Security Transactions
Practices
18. ................... Capital Stock and Other Securities Other Information
19. ................... Purchase, Redemption and Pricing of Determination of Net Asset Value; Service for
Securities Being Offered Withdrawal; Principal Underwriter;
Distribution Plan
20. ................... Tax Status Taxes
21. ................... Underwriters Principal Underwriter
22. ................... Calculation of Performance Data Investment Performance
23. ................... Financial Statements Financial Statements
</TABLE>
<PAGE>
EATON VANCE GROWTH TRUST
EV MARATHON GOLD & NATURAL RESOURCES FUND
SUPPLEMENT TO PROSPECTUS DATED FEBRUARY 1, 1995
1. Effective August 31, 1995, EV Marathon Gold & Natural Resources Fund was
reorganized and became a series of Eaton Vance Growth Trust, a business trust
organized under the laws of the Commonwealth of Massachusetts. Prior to the
reorganization, the Fund had been a separate Massachusetts business trust.
Except for the fact that the Fund is now a series of Eaton Vance Growth Trust,
shares of the Fund represent the same interest in the Fund's assets, are of the
same class, are subject to the same terms and conditions, fees and expenses and
confer the same rights as when the Fund was separate trust.
2. THE FOLLOWING PARAGRAPH REPLACES THE PARAGRAPH UNDER THE CAPTION "EATON
VANCE SHAREHOLDER SERVICES - REINVESTMENT PRIVILEGE":
REINVESTMENT PRIVILEGE: A SHAREHOLDER WHO HAS REPURCHASED OR REDEEMED SHARES MAY
REINVEST, WITH CREDIT FOR ANY CONTINGENT DEFERRED SALES CHARGES PAID ON THE
REPURCHASED OR REDEEMED SHARES, ANY PORTION OR ALL OF THE REPURCHASE OR
REDEMPTION PROCEEDS (PLUS THAT AMOUNT NECESSARY TO ACQUIRE A FRACTIONAL SHARE TO
ROUND OFF THE PURCHASE TO THE NEAREST FULL SHARE) IN SHARES OF THE FUND,
provided that the reinvestment is effected within 60 days after such repurchase
or redemption, and the privilege has not been used more than once in the prior
12 months. Shares are sold to a reinvesting shareholder at the next determined
net asset value following timely receipt of a written purchase order by the
Principal Underwriter or by the Fund (or by the Fund's Transfer Agent). To the
extent that any shares of the Fund are sold at a loss and the proceeds are
reinvested in shares of the Fund (or other shares of the Fund are acquired
within the period beginning 30 days before and ending 30 days after the date of
the redemption), some or all of the loss generally will not be allowed as a tax
deduction. Shareholders should consult their tax advisers concerning the tax
consequences of reinvestments.
3. UNDER THE SECTION ENTITLED "MANAGEMENT OF THE FUND", THE FOLLOWING PARAGRAPH
REPLACES THE EXISTING PARAGRAPH IDENTIFYING THE PORTFOLIO MANAGER:
William D. Burt and Barclay Tittmann are the co-portfolio managers of the
Fund. Mr. Burt joined Eaton Vance Management as a Vice President in November,
1994. Previously he was a Vice President of The Boston Company (1990-1994) and
a Vice President of Baring America Asset Management (1979-1990). Mr. Tittmann
joined Eaton Vance Management as a Vice President in October, 1993. He was a
Vice President, portfolio manager and analyst with Invesco Management and
Research (formerly Gardner and Preston Moss) from 1970-1993.
THE DATE OF THE ATTACHED PROSPECTUS IS CHANGED TO SEPTEMBER 1, 1995.
September 1, 1995 M-NRPS
<PAGE>
EV Marathon Gold & Natural Resources Fund
Supplement
to Prospectus dated February 1, 1995
Under the section entitled "Management of the Fund", the following
paragraph replaces the existing paragraph identifying the portfolio manager:
William D. Burt and Barclay Tittmann are the co-portfolio
managers of the Fund. Mr. Burt joined Eaton Vance Management as a Vice
President in November, 1994. Previously he was a Vice President of The
Boston Company (1990-1994) and a Vice President of Baring America Asset
Management (1979-1990). Mr. Tittmann joined Eaton Vance Management as a
Vice President in October, 1993. He was a Vice President, portfolio
manager and analyst with Invesco Management and Research (formerly
Gardner and Preston Moss) from 1970-1993.
March 31, 1995 M-NRPS
<PAGE>
EV MARATHON GOLD & NATURAL RESOURCES FUND
EV MARATHON GOLD & NATURAL RESOURCES FUND (THE "FUND") IS A MUTUAL FUND
SEEKING CAPITAL APPRECIATION AND PROTECTION OF PURCHASING POWER THROUGH
NATURAL RESOURCE RELATED INVESTMENTS.
Shares of the Fund are not deposits of, or guaranteed or endorsed by, any
bank or other insured depository institution, and are not federally insured by
the Federal Deposit Insurance Corporation, the Federal Reserve Board or any
other government agency. Shares of the Fund involve investment risks, including
fluctuations in value and the possible loss of some or all of the principal
investment.
This Prospectus is designed to provide you with information you should know
before investing. Please retain this document for future reference. A Statement
of Additional Information for the Fund dated February 1, 1995, as supplemented
from time to time, has been filed with the Securities and Exchange Commission
and is incorporated herein by reference. The Statement of Additional Information
is available without charge from the Fund's Principal Underwriter, Eaton Vance
Distributors, Inc., 24 Federal Street, Boston, MA 02110 (telephone (800)
225-6265). The Fund's investment adviser is Eaton Vance Management (the
"Investment Adviser") which is located at the same address.
------------------------------------------------------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
------------------------------------------------------------------------------
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page Page
<S> <C> <C> <C>
Shareholder and Fund Expenses ..................... 2 How to Buy Fund Shares ........................ 17
The Fund's Financial Highlights ................... 3 How to Redeem Fund Shares ..................... 18
The Fund's Investment Objective ................... 4 Reports to Shareholders ....................... 20
How the Fund Invests Its Assets ................... 4 The Lifetime Investing Account/Distribution
Special Considerations ............................ 8 Options ..................................... 20
Organization of the Fund .......................... 12 The Eaton Vance Exchange Privilege ............ 21
Management of the Fund ............................ 13 Eaton Vance Shareholder Services .............. 22
Distribution Plan ................................. 13 Distributions and Taxes ....................... 24
Valuing Fund Shares ............................... 16 Performance Information ...................... 25
</TABLE>
------------------------------------------------------------------------------
PROSPECTUS DATED FEBRUARY 1, 1995
<PAGE>
SHAREHOLDER AND FUND EXPENSES
------------------------------------------------------------------------------
<TABLE>
<S> <C>
SHAREHOLDER TRANSACTION EXPENSES
Sales Charges Imposed on Purchases of Shares None
Sales Charges Imposed on Reinvested Distributions None
Fees to Exchange Shares None
Range of Declining Contingent Deferred Sales Charges Imposed on Redemption During the
First Seven Years (as a percentage of redemption proceeds exclusive of all
reinvestments and capital appreciation in the account)<F2> 5.00%-0%
ANNUAL FUND OPERATING EXPENSES
(as a percentage of average daily net assets)
Investment Adviser Fee 0.750%
Rule 12b-1 Distribution (and Service) Fees 0.833%
Other Expenses 1.057%
-----
Total Operating Expenses 2.640%
=====
<CAPTION>
EXAMPLE 1 YEAR 3 YEARS 5 YEARS 10 YEARS
------ ------- ------- --------
<S> <C> <C> <C> <C>
An investor would pay the following contingent deferred
sales charge and expenses on a $1,000 investment,
assuming (a) 5% annual return and (b) redemption at the end
of each period: $77 $122 $160 $297
An investor would pay the following expenses on the same
investment, assuming (a) 5% annual return and (b) no redemptions: $27 $ 82 $140 $297
<FN>
Notes:
<F1> The purpose of the above table and Example is to assist investors in
understanding the various costs and expenses that investors in the Fund may
bear directly or indirectly. The percentages indicated in the table and the
amounts included in the Example are based on the Fund's fiscal year ended
September 30, 1994. The table and Example should not be considered a
representation of past or future expenses and actual expenses may be
greater or less than those shown. For further information regarding the
expenses of the Fund, see "The Fund's Financial Highlights", "Management of
the Fund" and "How to Redeem Fund Shares." Because the Fund makes payments
under its Distribution Plan adopted under Rule 12b-1, a long-term
shareholder may pay more than the economic equivalent of the maximum
front-end sales charge permitted by a rule of the National Association of
Securities Dealers, Inc. See "Distribution Plan."
<F2> No contingent deferred sales charge is imposed on (a) shares purchased more
than six years prior to the redemption, (b) shares acquired through the
reinvestment of dividends and distributions and (c) any appreciation in
value of other shares in the account (see "How to Redeem Fund Shares"), and
no such charge is imposed on exchanges of Fund shares for shares of the
funds currently listed under "The Eaton Vance Exchange Privilege".
</TABLE>
<PAGE>
THE FUND'S FINANCIAL HIGHLIGHTS
------------------------------------------------------------------------------
The following information should be read in conjunction with the financial
statements included in the Statement of Additional Information, all of which has
been so included in reliance upon the report of Deloitte & Touche LLP,
independent certified public accountants, as experts in accounting and auditing.
Further information regarding the performance of the Fund is contained in the
Fund's annual report to shareholders which may be obtained without charge by
contacting the Fund's Principal Underwriter, Eaton Vance Distributors, Inc.
------------------------------------------------------------------------------
<TABLE>
<CAPTION>
YEAR ENDED SEPTEMBER 30,
-------------------------------------------------------------------------------------------------------
1994 1993 1992 1991 1990 1989 1988<F2>
---- ---- ---- ---- ---- ---- ------
<S> <C> <C> <C> <C> <C> <C> <C>
NET ASSET VALUE,
beginning of year $13.240 $11.850 $11.140 $12.140 $13.460 $11.420 $10.000
------- ------- ------- ------- ------- ------- -------
INCOME FROM
OPERATIONS:
Net investment
income (loss) .. $(0.050) $(0.090) $(0.083) $ 0.020 $ 0.069 $ 0.060 $ 0.134
Net realized and
unrealized gain
(loss) on
investments .... 2.650 1.480 1.103 (0.570) (0.009) 2.480 1.406
------- ------- ------- ------- ------- ------- -------
Total income
from investment
operations ... $ 2.600 $ 1.390 $ 1.020 $(0.550) $ 0.060 $ 2.540 $ 1.540
------- ------- ------- ------- ------- ------- -------
LESS DISTRIBUTIONS FROM:
Net investment
income ......... $ -- $ -- $ -- $(0.020) $(0.069) $(0.074) $(0.120)
Net realized gain
on investments . -- -- (0.060) (0.320) (1.220) (0.280) --
In excess of net
investment income<F4> (0.020) -- (0.250) (0.110) (0.091) (0.146) --
In excess of
realized gain on
investment ..... (0.930) -- -- -- -- -- --
------- ------- ------- ------- ------- ------- -------
Total
distributions $(0.950) $ -- $(0.310) $(0.450) $(1.380) $(0.500) $(0.120)
------- ------- ------- ------- ------- ------- -------
NET ASSET VALUE, end
of year .......... $14.890 $13.240 $11.850 $11.140 $12.140 $13.460 $11.420
======= ======= ======= ======= ======= ======= =======
TOTAL RETURN<F5>.... 20.47% 11.73% 9.44% (4.36)% 0.01% 22.96% 15.39%
RATIOS/SUPPLEMENTAL DATA<F1>:
Net assets, end of
year (000 omitted) $13,055 $ 5,792 $ 3,775 $ 4,042 $ 4,391 $ 2,999 $ 2,424
Ratio of net
expenses to
average daily
net assets ..... 2.64% 3.15% 3.26% 3.29% 2.50% 1.62% 0.99%<F3>
Ratio of net
investment income
(loss) to
average daily net
assets ......... (0.96)% (0.92)% (0.67)% 0.17% 0.33% 0.45% 0.83%<F3>
PORTFOLIO TURNOVER . 17% 57% 32% 27% 35% 53% 25%
<FN>
<F1> For the six years ended September 30, 1993, the operating expenses of the
Fund reflect a reduction of the investment adviser fee, an allocation of
expenses to the Investment Adviser, or both. Had such actions not been
taken, net investment income per share and the ratios would have been as
follows:
NET INVESTMENT
INCOME (LOSS) PER
SHARE ............ $(0.210) $(0.240) $(0.110) $(0.300) $(0.600) $(0.980)
======= ======= ======= ======= ======= =======
RATIOS (As a percentage of
average daily net assets):
Expenses ...... 3.90% 4.65% 4.42% 5.23% 6.87% 7.90%<F3>
Net investment
income (loss) . (1.67)% (2.06)% (0.96)% (2.40)% (4.80)% (6.08)%<F3>
<F2> For the period from the start of business, October 21, 1987, to September
30, 1988.
<F3> Computed on an annualized basis.
<F4> Distributions from paid-in capital for the years ended September 30, 1992
and for the years prior thereto have been restated to conform with the
treatment under current financial reporting standards.
<F5> Total return is calculated assuming a purchase at the net asset value on
the first day and a sale at the net asset value on the last day of each
period. Dividends and distributions, if any, are assumed to be reinvested
at the net asset value on the reinvestment date.
</TABLE>
<PAGE>
THE FUND'S INVESTMENT OBJECTIVE
------------------------------------------------------------------------------
THE FUND'S INVESTMENT OBJECTIVE IS CAPITAL APPRECIATION AND PROTECTION OF THE
PURCHASING POWER OF THE SHAREHOLDER'S CAPITAL. The Fund will concentrate its
assets in natural resource related investments and may engage in various active
management strategies, as described below. Although the Fund will derive income
from some of its investments, current income is not an investment objective and
will not be a primary consideration in selecting securities for the Fund's
portfolio. There can be no assurance that the Fund will achieve its investment
objective. The Fund's investment adviser, Eaton Vance Management ("Eaton
Vance"), will manage its investments and affairs.
Except as otherwise indicated in this Prospectus, the investment objective
and policies of the Fund may be changed by the Trustees of the Fund without
shareholder approval, although the Trustees intend to submit material changes in
the investment objective to shareholders for their approval. If any changes were
made, the Fund might have investment objectives different from the objectives
which an investor considered appropriate at the time the investor became a
shareholder in the Fund.
HOW THE FUND INVESTS ITS ASSETS
------------------------------------------------------------------------------
BASIC INVESTMENT STRATEGIES. The Fund seeks to achieve its investment objective
through a portfolio of domestic and foreign natural resource related
investments. Under normal investment conditions the Fund expects that it will
invest primarily in common stocks, but it may also hold convertible bonds,
convertible preferred stocks, warrants, preferred stocks and debt securities if
Eaton Vance believes such investments would help to achieve the Fund's
investment objective. The Fund may also invest in debt, preferred or convertible
securities, the value of which is related to the market value of some natural
resource asset ("asset-related securities"). See "Special Considerations --
Asset-Related Securities" below. In making investments for the Fund, Eaton Vance
will seek to identify companies or asset-related securities it believes are
attractively priced relative to the intrinsic value of the underlying natural
resource assets, revenues or profits or are especially well positioned to
benefit during particular periods of investment or inflationary cycles.
The Fund may also from time to time invest to a limited extent in natural
resource-related direct placement securities and venture capital companies and
in gold or silver bullion, strategic metals, and gold or silver coins. See
"Direct Placement Securities and Venture Capital Investments" and "Metals
Investments" below.
WHEN EATON VANCE ANTICIPATES SIGNIFICANT ECONOMIC OR POLITICAL INSTABILITY,
SUCH AS HIGH INFLATION OR TURMOIL IN THE FOREIGN CURRENCY EXCHANGE MARKETS, THE
FUND, IN SEEKING TO PROTECT THE PURCHASING POWER OF SHAREHOLDERS' CAPITAL, MAY
INVEST A MAJORITY OF ITS ASSETS IN COMPANIES THAT EXPLORE FOR, EXTRACT, PROCESS
OR DEAL IN GOLD OR IN ASSET-RELATED SECURITIES INDEXED TO THE VALUE OF SOME
NATURAL RESOURCE SUCH AS GOLD BULLION. Such a change in investment strategy
could require the Fund to liquidate portfolio assets and incur transaction
costs. There can be no assurance that any such change in investment strategy
will result in the realization of the Fund's investment objective.
Except as described below, the Fund under normal circumstances will maintain
at least 65% of its total assets in natural resource related investments or in
asset-related securities.
At times Eaton Vance may judge that investment conditions make the Fund's
basic investment strategies described above inconsistent with the best interests
of shareholders. At such times Eaton Vance may use alternative investment
strategies primarily designed to reduce fluctuations in the value of the Fund's
assets. In implementing these temporary "defensive" strategies, the Fund may
invest in U.S. Government securities and money market securities, including
repurchase agreements, or hold a portion of its assets in cash or cash
equivalents. The Fund may also hold a portion of its assets in cash or money
market instruments, including repurchase agreements and cash equivalents, for
liquidity purposes. It is impossible to predict when, or for how long, the Fund
will use these alternative strategies.
NATURAL RESOURCE RELATED INVESTMENTS. Under normal investment conditions it is
anticipated that the Fund's portfolio will include a significant amount of
domestic and foreign natural resource related investments. A natural resource
related investment includes securities issued by companies engaged in exploring
for, developing, processing, fabricating, producing, distributing, dealing in or
owning natural resources, companies engaged in the creation or development of
technologies for the production or use of natural resources, and companies
engaged in the furnishing of technology, equipment, supplies or services to the
natural resource investment sector. Eaton Vance currently deems a company to be
in the natural resource investment sector (a) if at least 50% of the non-current
assets, capitalization, gross revenues or operating profit of the company in the
most recent or current fiscal year are involved in or result from (whether
directly or indirectly through affiliates) any of the foregoing activities, or
(b) if in Eaton Vance's judgment the company's natural resource assets, revenues
or profit are of such magnitude, when compared with the total non-current
assets, capitalization, gross revenues or operating profit of the company, that
favorable changes in the value of such assets or level of its natural resource
revenues or profit could favorably affect the market value of the equity
securities of the company.
Natural resources include substances, materials and energy derived from
natural sources which have economic value. Examples of natural resources include
precious metals (e.g., gold, silver and platinum), ferrous and non-ferrous
metals (e.g., iron, aluminum and copper), strategic metals (e.g., titanium,
chromium, vanadium and niobium), energy resources (coal, oil, natural gas, oil
shale and uranium), timberland, undeveloped real property and agricultural and
other commodities.
Eaton Vance will seek to identify securities of companies in this investment
sector which, in its judgment, are undervalued relative to the value of their
natural resource assets, revenues or profits in light of current and anticipated
economic or financial conditions. Eaton Vance believes that the market value of
securities of companies that have different kinds of natural resource assets,
revenues or profits may move relatively independently of one another during
different stages of investment and inflationary cycles. Eaton Vance's flexible
investment approach enables it to change the Fund's investment emphasis to
various subsectors within the large natural resource investment sector depending
upon Eaton Vance's outlook as to developments and trends which may affect the
value of and prospects for different types of natural resource related
investments.
In reviewing natural resource related investments available to the Fund,
Eaton Vance will consider, among other investments, domestic and foreign
companies which may
* EXPLORE FOR, FINANCE, DEVELOP, PRODUCE OR HOLD GOLD, SILVER, PLATINUM AND
OTHER PRECIOUS METALS. Eaton Vance will give special emphasis in this
subsector to efficiently managed, low cost gold producers which are able
to operate profitably at the current level of gold prices, thereby
benefiting from any future increase in gold prices.
* EXPLORE FOR, FINANCE, DEVELOP OR PRODUCE ENERGY RESOURCES SUCH AS OIL,
NATURAL GAS, COAL, OIL SHALE AND URANIUM. In this subsector, Eaton Vance
will stress low cost producers whose reserves will allow expansion of
production and those companies with established earnings records in both
rising and falling energy markets.
* EXPLORE FOR, FINANCE, DEVELOP, PRODUCE OR HOLD STRATEGIC METALS, SUCH AS
TITANIUM, CHROMIUM, VANADIUM AND NIOBIUM.
* CREATE AND DEVELOP NEW GEOCHEMICAL TECHNOLOGY OR PROPRIETARY METHODS FOR
DETECTING, DEVELOPING, PRODUCING OR PROCESSING MINERAL DEPOSITS AND OTHER
NATURAL RESOURCES.
* OWN, LEASE OR HAVE RIGHTS TO HOLDINGS OF TIMBER AND TIMBERLANDS. This
would include those companies which manufacture or process pulp, paper,
wood products and other specialty products.
* PROVIDE NATURAL RESOURCE TRANSPORTATION, DISTRIBUTION AND PROCESSING
SERVICES, SUCH AS PIPELINES AND REFINING.
DIRECT PLACEMENT SECURITIES AND VENTURE CAPITAL INVESTMENTS. On occasion the
Fund may make natural resource related investments in "direct placement
securities" issued by a company directly to the Fund. Direct placement
securities are normally not available to small investors, but are often offered
to institutional investors such as the Fund. Various considerations may lead
issuers to seek direct placement of their securities. For example, such issuers
may not be in a position to sell such securities publicly because they need to
raise money within a short period of time or need a relatively small amount of
money to fund their current operations or a particular project. Such issuers may
desire to establish relations with institutional investors such as the Fund
which will have a continuing financial interest in the issuer and perhaps make
further investments. Alternatively, the climate of the public securities market
may be temporarily unfavorable either in general or with respect to the
particular industry or company. The Fund believes there exist opportunities for
acquiring direct placement securities from issuers (particularly from junior
North American gold mining companies) with substantial growth potential in the
natural resources area.
Direct placement securities acquired by the Fund will be common stock, or
obligations or preferred stock having, as part of the package purchased, equity
features such as accompanying shares of common stock, securities convertible
into such shares, or conversion rights or warrants to purchase such shares. The
shares of common stock which are the subject of such equity features will
generally be the shares of the issuer, although in some cases they may be the
shares of a parent or other affiliate of the issuer, and will usually have or be
expected in time to have a public market. Nearly all securities acquired by the
Fund directly from an issuer and shares into which such securities may be
converted or which may be purchased on the exercise of warrants will, however,
be subject to legal or contractual delays in or restrictions on resale and will
therefore initially be treated as "restricted securities" in the Fund's
portfolio.
The Fund is also empowered to make natural resource related investments in
"venture capital companies" -- companies, the securities of which have no public
market at the time of investment. An investment of this type gives the
aggressive investor participation in a private enterprise which may, if
successful, afford significant appreciation potential. Venture capital investing
is by its very nature a high-risk activity which can result in substantial
losses.
Eaton Vance anticipates that the Fund's direct placement securities and
venture capital investments will constitute a small portion of its total
portfolio, and may include companies involved in the production of precious
metals. Advances in extractive and exploration technology as well as
inflationary economic conditions have provided opportunities for small and
medium sized independent companies to profitably exploit previously known gold
orebodies and newly discovered types of orebodies. Eaton Vance believes that
investing in such companies may produce superior investment returns. In this
connection, Eaton Vance will attempt to identify those entrepreneurially managed
emerging companies which concentrate in developing mines that offer the
potential of quick payback, relatively high rates of return at current prices,
and the possibility of orebody extensions.
All of such investments will involve risks to the Fund and its shareholders.
Therefore, the Fund may not invest more than 10% of its total assets, taken at
market value at the time of investment, in certain securities issued by venture
capital companies, certain over-the-counter options, unmarketable securities,
and repurchase agreements maturing in more than seven days. The Fund is further
subject to an additional investment restriction (set forth in the Statement of
Additional Information) which in effect prohibits an investment which would
cause more than 5% of its total assets, taken at market value, to be invested in
companies with less than three years of continuous operations. The Fund's direct
placement securities and venture capital investments are considered speculative
in nature and are not readily marketable.
METALS INVESTMENTS. In addition to investments in natural resource related
securities, the Fund may invest up to 10% of its portfolio in gold or silver
bullion, strategic metals, and gold or silver coins ("Metals Investments"). The
Fund will invest only in metals that are readily marketable, and in coins only
if there is an active quoted market for the coins in question. Coins will not be
purchased for their numismatic value.
In making direct investments in bullion or metals, the Fund normally will
not take possession of the bullion or metals, but instead will obtain receipts
or certificates representing ownership. In the event the Fund does take
possession, the bullion or metals would be delivered to and held by a
nonaffiliated sub-custodian in a segregated account. When it purchases bullion
or metals, either by purchasing receipts or certificates or by having a
sub-custodian physically hold such metals, the Fund will pay for the metals only
upon actual receipt. Although the Fund would incur storage, shipping and other
costs by owning bullion or metals, such costs should be minimized by the use of
receipts or certificates.
The Fund's Metals Investments will not generate income. The return to the
Fund from its Metals Investments will consist solely of market appreciation or
depreciation and gains or losses realized on sales. Accordingly, as indicated
above, the Fund will not invest more than 10% of its total assets, taken at
market value at the time of investment, in Metals Investments.
ACTIVE MANAGEMENT STRATEGIES. The Fund may engage in various active management
strategies, including entering into repurchase agreements and forward foreign
currency exchange contracts, writing and purchasing options on foreign
currencies, and leverage through borrowing. The Fund may write covered call and
covered put options on securities and metals, purchase such call and put
options, and enter into closing purchase and sale transactions with respect
thereto. The Fund may, for hedging or permissible non-hedging purposes, purchase
and sell futures contracts on various securities and metals and other physical
commodities, certificates of deposit, Eurodollar time deposits, securities
indices, economic indices (e.g., the Consumer Price Indices and the Commodity
Research Bureau Futures Price Index) and other financial instruments or indices,
purchase and write call and put options on any of such futures contracts and
enter into closing purchase and sale transactions with respect to such contracts
and options. Options, futures contracts, forward contracts and repurchase
agreements involve credit and other risks which are described below. A
discussion of the greater costs and risks which may result from the Fund's
investment policy with respect to leveraging through borrowing is set forth
under "Special Considerations -- Leverage Through Borrowing". The Fund's
investments in Metals Investments and in certain options, futures contracts and
forward contracts on foreign currencies or commodities may be limited by tax
requirements for qualification of the Fund as a regulated investment company.
The Fund expects that various new types of investments, hedging techniques and
management strategies will be developed and made available to institutional
investors in the future. Eaton Vance will consider making such investments or
using such techniques or strategies if it determines that they are consistent
with the Fund's investment objective and policies.
SPECIAL CONSIDERATIONS
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The Fund's classification under the Investment Company Act of 1940 as a
"non-diversified" investment company allows it to invest more than 5% of its
assets in the securities of any issuer and, during certain periods, to own more
than 10% of the voting securities of an issuer. Since a relatively high
percentage of the Fund's assets may from time to time be invested in the
securities of a limited number of issuers which may be in the natural resource
investment sector, the value of the Fund's shares could be adversely affected by
a single economic, political or regulatory occurrence or other development. In
any event, because the Fund expects to concentrate its investments in the
natural resources sector or various subsectors thereof, the value of its shares
will be especially affected by factors peculiar to this investment sector and
may fluctuate more widely than the value of shares of a mutual fund which
invests in a broader range of industries. The Fund should therefore be
considered as an investment vehicle in the natural resources sector, and not as
a balanced investment program.
FOREIGN INVESTMENTS. There are no prescribed geographic limits on companies in
which the Fund may invest. The Fund has no restrictions on the amount of its
assets that may be invested in securities of foreign issuers and thus the
relative amount of such investments will change from time to time. Under certain
economic, financial and political conditions, the Fund may invest primarily in
foreign securities. Investing in foreign securities may represent a greater
degree of risk than investing in domestic securities, because of the possibility
of exchange rate fluctuations, adoption of adverse exchange control regulations,
delays in settlement of transactions, less publicly- available financial and
other information, more volatile and less liquid markets, less securities
regulation, higher brokerage costs, difficulties in enforcing judgments, less
favorable tax provisions, war, expropriation or nationalization of assets or
other adverse governmental actions. Since the Fund may invest in securities
denominated or quoted in currencies other than the United States dollar, changes
in foreign currency exchange rates may affect the value of securities in the
portfolio and the unrealized appreciation or depreciation of investments insofar
as United States investors are concerned.
The Fund may invest in securities of foreign issuers either directly or in
the form of American Depository Receipts ("ADRs"), European Depository Receipts
("EDRs") or other similar securities convertible into securities of foreign
issuers. These securities are not necessarily denominated in the same currency
as the securities into which they may be converted. ADRs are receipts typically
issued by a U.S. banking institution evidencing ownership of the underlying
securities; EDRs are receipts evidencing a similar arrangement with a European
banking institution. Generally ADRs, in registered form, are designed for use in
U.S. securities markets and EDRs, in bearer form, are designed for use in
European securities markets. Such securities may or may not be listed on a
foreign securities exchange.
GOLD-RELATED INVESTMENTS. As indicated above, under certain circumstances the
Fund may invest a majority of its assets in gold-related companies or in
asset-related securities. Based on historic experience, during periods of
economic or political instability the securities of gold-related companies may
be subject to wide price fluctuations, reflecting the high volatility of gold
prices during such periods. In addition, the instability of gold prices may
result in volatile earnings of gold-related companies which, in turn, may affect
adversely the financial condition of such companies. Gold mining companies also
are subject to the risks generally associated with mining operations.
The major producers of gold include the Republic of South Africa, Russia,
Canada, the United States, Brazil and Australia. Sales of gold by Russia are
largely unpredictable and often relate to political and economic considerations
rather than to market forces. Economic, social and political developments within
South Africa may affect significantly South African gold production.
The Fund does not intend to invest in companies the assets of which are
located primarily in the Republic of South Africa. This current limitation may
affect adversely the Fund's ability to invest in gold-related securities and
during certain periods may result in the Fund restricting its investments to
relatively few gold-related companies.
ASSET-RELATED SECURITIES. The Fund may invest in debt securities, preferred
stocks or convertible securities, the principal amount, redemption terms or
conversion terms of which are related to the market price of some natural
resource asset such as gold bullion. For the purposes of the Fund's investment
policies, these securities are referred to as "asset-related securities". While
the market prices for an asset-related security and the related natural resource
asset generally are expected to move in the same direction, there may not be
perfect correlation in the two price movements. Asset-related securities may not
necessarily be secured by a security interest in or claim on the underlying
natural resource asset. The asset-related securities in which the Fund may
invest may bear interest or pay preferred dividends at below market (or even
relatively nominal) rates. As an example, assume gold is selling at a market
price of $300 per ounce and an issuer sells a $1,000 face amount gold related
note with a seven year maturity, payable at maturity at the greater of either
$1,000 in cash or the then market price of three ounces of gold. If at maturity,
the market price of gold is $400 per ounce, the amount payable on the note would
be $1,200. Certain asset-related securities may be payable at maturity in cash
at the stated principal amount or, at the option of the holder, directly in a
stated amount of the asset to which it is relate. In such instance the Fund may
sell the asset-related security in the secondary market, to the extent one
exists, prior to maturity if the value of the stated amount of the asset exceeds
the stated principal amount and thereby realize the appreciation in the
underlying asset.
CERTAIN INVESTMENT RESTRICTIONS AND POLICIES. The Fund has adopted certain
fundamental investment restrictions and policies which are enumerated in detail
in the Statement of Additional Information and which may not be changed unless
authorized by a shareholder vote. Briefly, among these fundamental restrictions,
the Fund may not (1) pledge more than 33 1/3% of its total assets to secure its
permitted borrowings; (2) purchase more than 10% of the total outstanding voting
securities of an issuer, except when significant economic, political or
financial instability is anticipated; or (3) invest more than 10% of its total
assets in venture capital companies, unmarketable securities, options on foreign
currencies which do not trade on exchanges and repurchase agreements maturing in
more than seven days. These restrictions are considered at the time of
acquisition of assets; the sale of portfolio assets is not required in the event
of a subsequent change in cirumstances. In addition, the Fund has adopted a
fundamental policy which requires it during normal market conditions to
concentrate at least 25% of its total assets in the natural resource group of
industries. Except for the fundamental investment restrictions and policies
specifically enumerated in the Statement of Additional Information, the
investment objective and policies of the Fund are not fundamental policies and
accordingly may be changed by the Trustees without obtaining the approval of the
Fund's shareholders. While not required to do so, the Trustees intend to submit
any material change in the Fund's investment objective to the shareholders for
their approval.
Eaton Vance intends to follow certain other nonfundamental investment
policies (which may be changed without shareholder authorization) in managing
the Fund's portfolio in addition to the other nonfundamental investment policies
described or referred to elsewhere in this Prospectus. These policies may help
to reduce investment risk. It is the Fund's current policy not to invest more
than 10% of its total assets in the securities of any one issuer (excluding U.S.
Government securities, or certificates of deposit, bankers' acceptances or time
deposits of banking or thrift institutions), or to invest more than 5% of its
assets in warrants (excluding warrants acquired in units or attached to
securities, which warrants are deemed to be without value).
The Fund intends to qualify as a regulated investment company under the
Internal Revenue Code (the "Code") and consequently will not be required to pay
any Federal income or excise taxes to the extent that it distributes to its
shareholders its net investment income and net realized capital gains in the
manner required by the Code. The Code currently requires that the Fund, to so
qualify, among other things, at the close of each of its fiscal quarters and
with respect to 50% of its assets, (i) may not have more than 5% of its total
assets invested in the securities of any one issuer (except obligations of the
U.S. Government, its agencies or instrumentalities) and (ii) may not own more
than 10% of the outstanding voting securities of any one issuer. These Code
diversification requirements could affect the Fund's portfolio investments under
certain conditions.
PORTFOLIO TURNOVER. Eaton Vance will change the Fund's investments whenever it
believes a change may be appropriate, without regard to how long a particular
investment may have been held. Changes in investments generally involve expenses
to the Fund, which may include brokerage commissions or dealer mark-ups and
other transaction costs on the disposition of investments and reinvestment of
the proceeds in other investments, and may result in net capital gains
distributions of which will be subject to tax. The Fund's investment policies
and strategies may result in a higher portfolio turnover rate than that
experienced by other mutual funds. The Fund's portfolio turnover rate will not
be a limiting factor when Eaton Vance considers a change in the Fund's
investment portfolio, and in any fiscal year such rate could exceed 200%.
REPURCHASE AGREEMENTS. The Fund may enter into repurchase agreements with
respect to its permitted investments, but currently intends to do so only with
member banks of the Federal Reserve System or with primary dealers in U.S.
Government securities. Under a repurchase agreement the Fund buys a security at
one price and simultaneously promises to sell that same security back to the
seller at a higher price. The repurchase date is usually within seven days of
the original purchase date. At no time will the Fund commit more than 10% of its
assets to repurchase agreements which mature in more than seven days. Repurchase
agreements are deemed to be loans under the Investment Company Act of 1940. In
all cases Eaton Vance must be satisfied with the creditworthiness of the other
party to the agreement before entering into a repurchase agreement. In the event
of the bankruptcy of the other party to a repurchase agreement, the Fund might
experience delays in recovering its cash. To the extent that, in the meantime,
the value of the securities the Fund purchased may have decreased, the Fund
could experience a loss.
LEVERAGE THROUGH BORROWING. The Fund may borrow from banks or by entering into
reverse repurchase agreements to increase its portfolio holdings of securities,
commodities and commodity contracts. Such borrowings may be on a secured or
unsecured basis at fixed or variable rates of interest. A reverse repurchase
agreement is functionally identical to a repurchase agreement except that the
roles of the parties are reversed so that the Fund will sell the the underlying
security with the promise to repurchase. The Investment Company Act of 1940
requires the Fund to maintain continuous asset coverage of not less than 300%
with respect to all borrowings. This allows the Fund to borrow for such purposes
an amount (when taken together with any borrowings for temporary or emergency
purposes as described below) equal to as much as 50% of the value of its net
assets (not including such borrowings). If such asset coverage should decline to
less than 300% due to market fluctuations or other reasons, the Fund may be
required to dispose of some of its portfolio holdings within three days in order
to reduce the Fund's debt and restore the 300% asset coverage, even though it
may be disadvantageous from an investment standpoint to dispose of assets at
that time. Leveraging will exaggerate any increase or decrease in the net asset
value of the Fund's portfolio, and in that respect may be considered a
speculative practice. The interest which the Fund must pay on borrowed money,
together with any additional fees to maintain a line of credit or any minimum
average balances required to be maintained by the bank, are additional costs
which will reduce or eliminate any net investment income and may also offset any
potential capital gains. Unless the appreciation and income, if any, on assets
acquired with borrowed funds exceed the costs of borrowing, the use of leverage
will diminish the investment performance of the Fund compared with what it would
have been without leverage.
The Fund will not always borrow money for additional investments. The Fund's
willingness to borrow money, and the amount it will borrow, will depend on many
factors the most important of which are market conditions and interest rates.
Successful use of a leveraging strategy depends on Eaton Vance's ability to
correctly predict interest rates and market movements.
The Fund, like many other investment companies, may also borrow money for
temporary or emergency purposes, but such borrowings may not exceed 10% of the
value of the Fund's gross assets when the loan is made.
DERIVATIVE INSTRUMENTS. From time to time, the Fund may purchase or enter into
derivative instruments to enhance return, to hedge against fluctuations in
securities prices or currency exchange rates, to change the duration of the
Fund's fixed income portfolio (if any) or as a substitute for the purchase or
sale of securities or currency. The Fund's investments in derivative securities
may include indexed securities. The Fund's transactions in derivative contracts
may include the purchase or sale of futures contracts on securities, indices or
currency; options on futures contracts; options on securities, indices or
currency; and forward contracts to purchase or sell securities or currency.
All of the Fund's transactions in derivative instruments involve a risk of
loss or depreciation due to unanticipated adverse changes in interest rates,
securities prices or currency exchange rates. The loss on derivative contracts
(other than purchase options) may exceed the Fund's initial investment in these
contracts. In addition, the Fund may lose the entire premium paid for purchased
options that expire before they can be profitably exercised by the Fund.
Indexed Securities. The Fund may invest in indexed securities, including
PERLs and other currency linked securities. The interest rate or, in some cases,
the principal payable at the maturity of an indexed security may change
positively or inversely in relation to one or more interest rates, financial
indices, currency rates or other financial indicators ("reference prices"). An
indexed security may be leveraged to the extent that the magnitude of any change
in the interest rate or principal payable on an indexed security is a multiple
of the change in the reference price. Thus, indexed securities may decline in
value due to adverse market changes in currency exchange rates and other
reference prices.
Derivative Contracts. The Fund may purchase and sell a variety of derivative
contracts, including futures contracts on securities, indices or currency;
options on futures contracts; options on securities, indices or currency;
forward contracts to purchase or sell securities or currency; and currency
swaps. The Fund incurs liability to a counterparty in connection with
transactions in futures contracts, forward contracts and swaps and in selling
options. The Fund pays a premium for purchased options. In addition, the Fund
incurs transactions costs in opening and closing positions in derivative
contracts.
Risks Associated With Derivative Securities and Contracts. The risks
associated with the Fund's transactions in derivative securities and contracts
may include some or all of the following: (1) market risk; (2) leverage and
volatility risk; (3) correlation risk; (4) credit risk; and (5) liquidity and
valuation risk.
Entering into a derivative contract involves a risk that the applicable
market will move against the Fund's position and that the Fund will incur a
loss. For derivative contracts other than purchased options, this loss may
exceed the amount of the initial investment made or the premium received by the
Fund.
Derivative instruments may sometimes increase or leverage the Fund's
exposure to a particular market risk. Leverage enhances the price volatility of
derivative instruments held by the Fund. The Fund may partially offset the
leverage inherent in derivative contracts by maintaining a segregated account
consisting of cash and liquid, high grade debt securities, by holding offsetting
portfolio securities or currency positions or by covering written options.
The Fund's success in using derivative instruments to hedge portfolio assets
depends on the degree of price correlation between the derivative instrument and
the hedged asset. Imperfect correlation may be caused by several factors,
including temporary price disparities among the trading markets for the
derivative instrument, the assets underlying the derivative instrument and the
Fund's assets.
Derivative securities and over-the-counter derivative contracts involve a
risk that the issuer or counterparty will fail to perform its contractual
obligations.
Some derivative securities are not readily marketable or may become illiquid
under adverse market conditions. In addition, during periods of extreme market
volatility, a commodity or exchange may suspend or limit trading in an
exchange-traded derivative contract, which may make the contract temporarily
illiquid and difficult to price. The staff of the Securities and Exchange
Commission ("SEC") takes the position that certain over-the-counter options are
illiquid investments. The Fund's ability to terminate over-the-counter
derivative contracts may depend on the cooperation of the counterparties to such
contracts. For thinly traded derivative securities and contracts, the only
source of price quotations may be the selling dealer or counterparty.
ORGANIZATION OF THE FUND
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EV MARATHON GOLD & NATURAL RESOURCES FUND, A BUSINESS TRUST ESTABLISHED UNDER
MASSACHUSETTS LAW PURSUANT TO A DECLARATION OF TRUST DATED AUGUST 3, 1987, AS
AMENDED, IS A MUTUAL FUND -- AN OPEN-END NON-DIVERSIFIED MANAGEMENT INVESTMENT
COMPANY. The Fund changed its name from Eaton Vance Natural Resources Trust to
EV Marathon Gold & Natural Resources Fund on April 1, 1994. The Trustees of the
Fund are responsible for the overall management and supervision of its affairs.
The Fund has one class of shares of beneficial interest, an unlimited number of
which may be issued. Each share represents an equal proportionate beneficial
interest in the Fund. When issued and outstanding, the shares are fully paid and
nonassessable by the Fund and redeemable as described under "How to Redeem Fund
Shares". Shareholders are entitled to one vote for each full share held.
Fractional shares may be voted proportionately. Shares have no preemptive or
conversion rights and are freely transferable. Upon liquidation of the Fund,
shareholders are entitled to share pro rata in the net assets of the Fund
available for distribution to shareholders.
MANAGEMENT OF THE FUND
------------------------------------------------------------------------------
THE FUND ENGAGES EATON VANCE MANAGEMENT ("EATON VANCE") AS ITS INVESTMENT
ADVISER. EATON VANCE, ITS AFFILIATES AND ITS PREDECESSOR COMPANIES HAVE BEEN
MANAGING ASSETS OF INDIVIDUALS AND INSTITUTIONS SINCE 1924 AND MANAGING
INVESTMENT COMPANIES SINCE 1931.
Acting under the general supervision of the Trustees of the Fund, Eaton
Vance manages the Fund's investments and affairs. Under its investment advisory
agreement with the Fund, Eaton Vance receives a monthly advisory fee of .0625%
(equivalent to .75 of 1% annually) of the average daily net assets of the Fund
up to $500 million; the fee will be reduced at various asset levels over $500
million. This fee may be higher than that paid by many other investment
companies.
For the fiscal year ended September 30, 1994, the Fund paid Eaton Vance
advisory fees equivalent to 0.75%, of the Fund's average daily net assets for
such period.
Eaton Vance also furnishes for the use of the Fund office space and all
necessary office facilities, equipment and personnel for servicing the
investments of the Fund. The Fund is responsible for the payment of all expenses
other than those expressly stated to be payable by Eaton Vance under the
investment advisory agreement.
Eaton Vance places the Fund's portfolio security transactions for execution
with many broker-dealer firms and uses its best efforts to obtain execution of
such transactions at prices which are advantageous to the Fund and at reasonably
competitive commission rates. Subject to the foregoing, Eaton Vance may consider
sales of shares of the Fund or of other investment companies sponsored by Eaton
Vance as a factor in the selection of firms to execute portfolio transactions.
Thomas E. Faust, Jr. has acted as the portfolio manager since 1987. He has
been a Vice President of Eaton Vance since 1985.
EATON VANCE OR ITS AFFILIATES ACTS AS INVESTMENT ADVISER TO INVESTMENT COMPANIES
AND VARIOUS INDIVIDUAL AND INSTITUTIONAL CLIENTS WITH ASSETS UNDER MANAGEMENT OF
APPROXIMATELY $15 BILLION. Eaton Vance is a wholly-owned subsidiary of Eaton
Vance Corp., a publicly held holding company. Eaton Vance Corp., through its
subsidiaries and affiliates, engages in investment management and marketing
activities, fiduciary and banking services, oil and gas operations, real estate
investment, consulting, and management, and development of precious metals
properties. Eaton Vance Distributors, Inc. (the "Principal Underwriter" or
"EVD"), 24 Federal Street, Boston, MA 02110, a wholly-owned subsidiary of Eaton
Vance, acts as Principal Underwriter to the Fund.
DISTRIBUTION PLAN
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THE FUND FINANCES DISTRIBUTION ACTIVITIES AND HAS ADOPTED A DISTRIBUTION PLAN
(THE "PLAN") PURSUANT TO RULE 12B-1 UNDER THE INVESTMENT COMPANY ACT OF 1940.
Rule 12b-1 permits a mutual fund, such as the Fund, to finance distribution
activities and bear expenses associated with the distribution of its shares
provided that any payments made by the Fund are made pursuant to a written plan
adopted in accordance with the Rule. The Plan is also subject to, and complies
with, the sales charge rule of the National Association of Securities Dealers,
Inc. (the "NASD Rule"). The Plan is described in the Statement of Additional
Information, and the following is a brief description of the salient features of
the Plan. The Plan provides that the Fund, subject to the NASD Rule, will pay
sales commissions and distribution fees to the Principal Underwriter only after
and as a result of the sale of shares of the Fund. On each sale of Fund shares
(excluding reinvestment of distributions) the Fund will pay the Principal
Underwriter amounts representing (i) sales commissions equal to 5% of the amount
received by the Fund for each share sold and (ii) distribution fees calculated
by applying the rate of 1% over the prime rate then reported in The Wall Street
Journal to the outstanding balance of Uncovered Distribution Charges (as
described below) of the Principal Underwriter. The Principal Underwriter
currently expects to pay sales commissions (except on exchange transactions and
reinvestments) to a financial services firm (an "Authorized Firm") at the time
of sale equal to 4% of the purchase price of the shares sold by such Firm. The
Principal Underwriter will use its own funds (which may be borrowed from banks)
to pay such commissions. Because the payment of the sales commissions and
distribution fees to the Principal Underwriter is subject to the NASD Rule
described below, it will take the Principal Underwriter a number of years to
recoup the sales commissions paid by it to Authorized Firms from the payments
received by it from the Fund pursuant to the Plan.
THE NASD RULE REQUIRES THE FUND TO LIMIT ITS ANNUAL PAYMENTS OF SALES
COMMISSIONS AND DISTRIBUTION FEES TO THE PRINCIPAL UNDERWRITER TO AN AMOUNT NOT
EXCEEDING .75% OF THE FUND'S AVERAGE DAILY NET ASSETS FOR EACH FISCAL YEAR.
Accordingly, the Fund accrues daily an amount at the rate of 1/365 of .75% of
the Fund's net assets, and pays such accrued amounts monthly to the Principal
Underwriter. The Plan requires such accruals to be automatically discontinued
during any period in which there are no outstanding Uncovered Distribution
Charges under the Plan. Uncovered Distribution Charges are calculated daily and,
briefly, are equivalent to all unpaid sales commissions and distribution fees to
which the Principal Underwriter is entitled under the Plan less all contingent
deferred sales charges theretofore paid to the Principal Underwriter. The Eaton
Vance organization may be considered to have realized a profit under the Plan if
at any point in time the aggregate amounts of all payments received by the
Principal Underwriter from the Fund pursuant to the Plan, including any
contingent deferred sales charges, have exceeded the total expenses theretofore
incurred by such organization in distributing shares of the Fund. Total expenses
for this purpose will include an allocable portion of the overhead costs of such
organization and its branch offices.
The amount payable to the Principal Underwriter pursuant to the Plan with
respect to each day will be accrued on such day as a liability of the Fund and
will accordingly reduce the Fund's net assets upon such accrual, all in
accordance with generally accepted accounting principles. The amount payable on
each day is limited to 1/365 of .75% of the Fund's net assets on such day. The
level of the Fund's net assets changes each day and depends upon the amount of
sales and redemptions of Fund shares, the changes in the value of the
investments held by the Fund, the expenses of the Fund accrued on such day,
income on portfolio investments of the Fund accrued on such day, and any
dividends and distributions declared by the Fund. The Fund does not accrue
possible future payments as a liability of the Fund or reduce the Fund's current
net assets in respect of unknown amounts which may become payable under the Plan
in the future because the standards for accrual of a liability under such
accounting principles have not been satisfied.
The Plan provides that the Fund will receive all contingent deferred sales
charges and will make no payments to the Principal Underwriter in respect of any
day on which there are no outstanding Uncovered Distribution Charges of the
Principal Underwriter. Contingent deferred sales charges and accrued amounts
will be paid to the Principal Underwriter whenever there exist Uncovered
Distribution Charges under the Plan.
The provisions of the Plan relating to payments of sales commissions and
distribution fees to the Principal Underwriter are also included in the
Distribution Agreement between the Fund and the Principal Underwriter. The Plan
continues in effect through and including April 28, 1995, and shall continue in
effect indefinitely thereafter for so long as such continuance is approved at
least annually by the vote of both a majority of (i) the Trustees of the Fund
who are not interested persons of the Fund and who have no direct or indirect
financial interest in the operation of the Plan or any agreements related to the
Plan (the "Rule 12b-1 Trustees") and (ii) all of the Trustees then in office,
and the Distribution Agreement contains a similar provision. The Plan and
Distribution Agreement may be terminated at any time by vote of a majority of
the Rule 12b-1 Trustees or by a vote of a majority of the outstanding voting
securities of the Fund.
Periods with a high level of sales of Fund shares accompanied by a low level
of early redemptions of Fund shares resulting in the imposition of contingent
deferred sales charges will tend to increase the time during which there will
exist Uncovered Distribution Charges of the Principal Underwriter. Conversely,
periods with a low level of sales of Fund shares accompanied by a high level of
early redemptions of Fund shares resulting in the imposition of contingent
deferred sales charges will tend to reduce the time during which there will
exist Uncovered Distribution Charges of the Principal Underwriter.
Because of the NASD Rule limitation on the amount of sales commissions and
distribution fees paid to the Principal Underwriter during any fiscal year, a
high level of sales of Fund shares during the initial years of the Fund's
operations would cause a large portion of the sales commissions attributable to
a sale of Fund shares to be accrued and paid by the Fund to the Principal
Underwriter in fiscal years subsequent to the year in which such shares were
sold. This spreading of sales commissions payments under the Plan over an
extended period would result in the incurrence and payment of increased
distribution fees under the Plan.
For the fiscal year ended September 30, 1994, the Fund paid sales
commissions under the Plan equivalent to .75% (annualized) of the Fund's average
daily net assets. As of September 30, 1994 the outstanding Uncovered
Distribution Charges of the Principal Underwriter calculated under the Plan
amounted to approximately, $435,762 (which amount was equivalent to 3.34% of the
Fund's net assets on such day).
THE PLAN ALSO AUTHORIZES THE FUND TO MAKE PAYMENTS OF SERVICE FEES TO THE
PRINCIPAL UNDERWRITER, AUTHORIZED FIRMS AND OTHER PERSONS IN AMOUNTS NOT
EXCEEDING .25% OF THE FUND'S AVERAGE DAILY NET ASSETS FOR EACH FISCAL YEAR. The
Trustees of the Fund have initially implemented this provision of the Plan by
authorizing the Fund to make quarterly payments of service fees to the Principal
Underwriter and Authorized Firms in amounts not expected to exceed .25% of the
Fund's average daily net assets for any fiscal year based on the value of Fund
shares sold by such persons and remaining outstanding for at least twelve
months. As permitted by the NASD Rule, such payments are made for personal
services and/or the maintenance of shareholder accounts. Service fees are
separate and distinct from the sales commissions and distribution fees payable
by the Fund to the Principal Underwriter, and as such are not subject to
automatic discontinuance when there are no outstanding Uncovered Distribution
Charges of the Principal Underwriter. For the fiscal year ended September 30,
1994, the Fund made service fee payments to the Principal Underwriter and
Authorized Firms equivalent to 0.08% of the Fund's average daily net assets for
such year.
The Plan as currently implemented by the Trustees authorizes payments of
sales commissions and distribution fees to the Principal Underwriter and service
fees to the Principal Underwriter and Authorized Firms which may be equivalent,
on an aggregate basis during any fiscal year of the Fund, to 1% of the Fund's
average daily net assets for such year. The Fund believes that the combined rate
of all these payments may be higher than the rate of payments made under
distribution plans adopted by other investment companies pursuant to Rule 12b-1.
It is anticipated that the Eaton Vance organization will profit by reason of the
operation of the Plan through increases in the Fund's assets (thereby increasing
the advisory fees payable to Eaton Vance) resulting from sale of Fund shares and
through amounts paid under the Plan to the Principal Underwriter and contingent
deferred sales charges paid to the Principal Underwriter.
The Principal Underwriter may, from time to time, at its own expense,
provide additional incentives to Authorized Firms which employ registered
representatives who sell a minimum dollar amount of the Fund's shares and/or
shares of other funds distributed by the Principal Underwriter. In some
instances, such additional incentives may be offered only to certain Authorized
Firms whose representatives are expected to sell significant amounts of shares.
In addition, the Principal Underwriter may from time to time increase or
decrease the sales commissions payable to Authorized Firms.
The Fund may, in its absolute discretion, suspend, discontinue or limit the
offering of its shares at any time. In determining whether any such action
should be taken, the Fund's management intends to consider all relevant factors,
including without limitation the size of the Fund, the investment climate and
market conditions, the volume of sales and redemptions of Fund shares, and the
amount of Uncovered Distribution Charges of the Principal Underwriter. The Plan
may continue in effect and payments may be made under the Plan following any
such suspension, discontinuance or limitation of the offering of Fund shares;
however, the Fund is not contractually obligated to continue the Plan for any
particular period of time. Suspension of the offering of Fund shares would not,
of course, affect a shareholder's ability to redeem shares.
VALUING FUND SHARES
------------------------------------------------------------------------------
THE FUND VALUES ITS SHARES ONCE ON EACH DAY THE NEW YORK STOCK EXCHANGE (THE
"EXCHANGE") IS OPEN FOR TRADING, as of the close of regular trading on the
Exchange (normally 4:00 p.m. New York time). The Fund's net asset value per
share is determined by its custodian, Investors Bank & Trust Company ("IBT"),
(as agent for the Fund) in the manner authorized by the Trustees of the Fund.
Net asset value is computed by dividing the value of the Fund's total assets,
less its liabilities, by the number of shares outstanding. The Trustees have
established procedures for the valuation of the Fund's assets; in general, these
valuations are based on market value or fair value, with special provisions for
valuing debt obligations, short-term investments, foreign securities, hedging
instruments, direct placement securities, investments in Venture Capital
Companies, and assets not having readily available market quotations.
Authorized Firms must communicate an investor's order to the Principal
Underwriter prior to the close of the Principal Underwriter's business day to
receive that day's net asset value per share. It is the Authorized Firms'
responsibility to transmit orders promptly to the Principal Underwriter, which
is a wholly-owned subsidiary of Eaton Vance. Eaton Vance Corp. owns 77.3% of the
outstanding stock of IBT, the Fund's custodian.
--------------------------------------------------------------------------------
SHAREHOLDERS MAY DETERMINE THE VALUE OF THEIR INVESTMENT BY MULTIPLYING THE
NUMBER OF FUND SHARES OWNED BY THE CURRENT NET ASSET VALUE.
------------------------------------------------------------------------------
HOW TO BUY FUND SHARES
------------------------------------------------------------------------------
SHARES OF THE FUND MAY BE PURCHASED FOR CASH OR MAY BE ACQUIRED IN EXCHANGE FOR
SECURITIES. Investors may purchase shares of the Fund through Authorized Firms
at the net asset value per share of the Fund next determined after an order is
effective. The Fund may suspend the offering of shares at any time and may
refuse an order for the purchase of shares.
An initial investment in the Fund must be at least $1,000. Once an account
has been established the investor may send investments of $50 or more at any
time directly to the Fund's Transfer Agent (the "Transfer Agent") as follows:
The Shareholder Services Group, Inc., BOS725, P.O. Box 1559, Boston, MA 02104.
The $1,000 minimum initial investment is waived for Bank Draft Investing
accounts, which may be established with an investment of $50 or more. See "Eaton
Vance Shareholder Services".
In connection with employee benefit or other continuous group purchase plans
under which the average initial purchase by a participant of the plan is $1,000
or more, the Fund may accept initial investments of less than $1,000 on the part
of an individual participant. In the event a shareholder who is a participant of
such a plan terminates his or her participation in the plan, the shares will be
transferred to a regular individual account. However, such account will be
subject to the right of redemption by the Fund as described below under "How to
Redeem Fund Shares."
ACQUIRING FUND SHARES IN EXCHANGE FOR SECURITIES. IBT, as escrow agent,
will receive securities acceptable to Eaton Vance, as investment adviser, in
exchange for Fund shares at their net asset value as determined above. The
minimum value of securities or securities and cash accepted for deposit is
$5,000. Securities accepted will be sold by IBT as agent for the account of
their owner on the day of their receipt by IBT or as soon thereafter as
possible. The number of Fund shares to be issued in exchange for securities will
be the aggregate proceeds from the sale of such securities, divided by the
applicable net asset value per Fund share on the day such proceeds are received.
Eaton Vance will use reasonable efforts to obtain the current market price for
such securities but does not guarantee the best price available. Eaton Vance
will absorb any transaction costs, such as commissions, on the sale of the
securities.
Securities determined to be acceptable should be transferred via book entry
or physically delivered, in proper form for transfer, through an Authorized
Firm, together with a completed and signed Letter of Transmittal in approved
form (available from Authorized Firms), as follows:
IN THE CASE OF BOOK ENTRY:
Deliver through Depository Trust Co.
Broker #2212
Investors Bank & Trust Company
For A/C EV Marathon Gold & Natural Resources Fund
IN THE CASE OF PHYSICAL DELIVERY:
Investors Bank & Trust Company
Attention: EV Marathon Gold & Natural Resources Fund
Physical Securities Processing Settlement Area
89 South Street
Boston, MA 02111
Investors who are contemplating an exchange of securities for shares of the
Fund, or their representatives, must contact Eaton Vance to determine whether
the securities are acceptable before forwarding such securities to IBT. Eaton
Vance reserves the right to reject any securities. Exchanging securities for
Fund shares may create a taxable gain or loss. Each investor should consult his
or her tax adviser with respect to the particular Federal, state and local tax
consequences of exchanging securities for Fund shares.
--------------------------------------------------------------------------------
IF YOU DON'T HAVE AN AUTHORIZED FIRM, EATON VANCE CAN RECOMMEND ONE.
------------------------------------------------------------------------------
HOW TO REDEEM FUND SHARES
------------------------------------------------------------------------------
A SHAREHOLDER MAY REDEEM FUND SHARES BY DELIVERING TO THE SHAREHOLDER SERVICES
GROUP, INC., BOS725, P.O. BOX 1559, BOSTON, MASSACHUSETTS 02104, during its
business hours a written request for redemption in good order, plus any share
certificates with executed stock powers. The redemption price will be based on
the net asset value per share next computed after such delivery. Good order
means that all relevant documents must be endorsed by the record owner(s)
exactly as the shares are registered and the signature(s) must be guaranteed by
a member of either the Securities Transfer Association's STAMP program or the
New York Stock Exchange's Medallion Signature Program, or certain banks, savings
and loan institutions, credit unions, securities dealers, securities exchanges,
clearing agencies and registered securities associations as required by a
regulation of the Securities and Exchange Commission (the "Commission") and
acceptable to The Shareholder Services Group, Inc. In addition, in some cases,
good order may require the furnishing of additional documents such as where
shares are registered in the name of a corporation, partnership or fiduciary.
Within seven days after receipt of a redemption request in good order by The
Shareholder Services Group, Inc., the Fund will make payment in cash for the net
asset value of the shares as of the date determined above, reduced by the amount
of any applicable contingent deferred sales charges described below and Federal
income tax required to be withheld.
To sell shares at their net asset value through an Authorized Firm (a
repurchase), a shareholder can place a repurchase order with the Authorized
Firm, which may charge a fee. The value of such shares is based upon the net
asset value calculated after EVD, as the Fund's agent, receives the order. It is
the Authorized Firm's responsibility to transmit promptly repurchase orders to
EVD. Throughout this Prospectus, the word "redemption" is generally meant to
include a repurchase.
If shares were recently purchased, the proceeds of redemption (or
repurchase) will not be sent until the check (including a certified or cashier's
check) received for the shares purchased has cleared. Payment for shares
tendered for redemption may be delayed up to 15 days from the purchase date when
the purchase check has not yet cleared. Redemptions or repurchases may result in
a taxable gain or loss.
Due to the high cost of maintaining small accounts, the Fund reserves the
right to redeem Fund accounts with balances of less than $1,000. Prior to such a
redemption, shareholders will be given 60 days written notice to make an
additional purchase. Thus, an investor making an initial investment of $1,000
would not be able to redeem shares without being subject to this policy.
However, no such redemption would be required by the Fund if the cause of the
low account balance was a reduction in the net asset value of Fund shares. No
contingent deferred sales charge will be imposed with respect to such
involuntary redemptions.
CONTINGENT DEFERRED SALES CHARGE. Shares redeemed within the first six years
of their purchase (except shares acquired through the reinvestment of
distributions) generally will be subject to a contingent deferred sales charge.
This contingent deferred sales charge is imposed on any redemption the amount of
which exceeds the aggregate value at the time of redemption of (a) all shares in
the account purchased more than six years prior to the redemption, (b) all
shares in the account acquired through reinvestment of distributions, and (c)
the increase, if any, of value of all other shares in the account (namely those
purchased within the six years preceding the redemption) over the purchase price
of such shares. Redemptions are processed in a manner to maximize the amount of
redemption proceeds which will not be subject to a contingent deferred sales
charge; i.e., each redemption will be assumed to have been made first from the
exempt amounts referred to in clauses (a), (b) and (c) above, and second through
liquidation of those shares in the account referred to in clause (c) on a
first-in-first-out basis. Any contingent deferred sales charge which is required
to be imposed on share redemptions will be made in accordance with the following
schedule:
YEAR OF CONTINGENT
REDEMPTION DEFERRED SALES
AFTER PURCHASE CHARGE
-------------- --------------
First .............................................. 5%
Second ............................................. 5%
Third .............................................. 4%
Fourth ............................................. 3%
Fifth .............................................. 2%
Sixth .............................................. 1%
Seventh and following .............................. 0%
For shares purchased prior to August 1, 1994, the contingent deferred sales
charge for redemptions within the first year after purchase is 6%. In
calculating the contingent deferred sales charge upon the redemption of Fund
shares acquired in an exchange for shares of a fund currently listed under "The
Eaton Vance Exchange Privilege", the contingent deferred sales charge schedule
applicable to the shares at the time of purchase will apply and the purchase of
Fund shares acquired in the exchange is deemed to have occurred at the time of
the original purchase of exchanged shares. The contingent deferred sales charge
will be waived for shares redeemed (1) pursuant to a Withdrawal Plan (see "Eaton
Vance Shareholder Services") or (2) as part of a required distribution from a
tax-sheltered retirement plan or (3) following the death of all beneficial
owners of such shares, provided the redemption is requested within one year of
death (a death certificate and other applicable documents may be required).
No contingent deferred sales charge will be imposed on shares of the Fund
which have been sold to Eaton Vance, its affiliates or to their respective
employees or clients. The contingent deferred sales charge will be paid to the
Principal Underwriter or the Fund. When paid to the Principal Underwriter it
will reduce the amount of Uncovered Distribution Charges calculated under the
Fund's Distribution Plan. See "Distribution Plan."
--------------------------------------------------------------------------------
THE FOLLOWING EXAMPLE ILLUSTRATES THE OPERATION OF THE CONTINGENT DEFERRED
SALES CHARGE. ASSUME THAT AN INVESTOR PURCHASES $10,000 OF THE FUND'S SHARES
AND THAT 16 MONTHS LATER THE VALUE OF THE ACCOUNT HAS GROWN THROUGH INVESTMENT
PERFORMANCE AND REINVESTMENT OF DISTRIBUTIONS TO $12,000. THE INVESTOR THEN
MAY REDEEM UP TO $2,000 OF SHARES WITHOUT INCURRING A CONTINGENT DEFERRED
SALES CHARGE. IF THE INVESTOR SHOULD REDEEM $3,000 OF SHARES, A CHARGE WOULD
BE IMPOSED ON $1,000 OF THE REDEMPTION. THE RATE WOULD BE 5% BECAUSE IT WAS IN
THE SECOND YEAR AFTER THE PURCHASE WAS MADE AND THE CHARGE WOULD BE $50.
------------------------------------------------------------------------------
REPORTS TO SHAREHOLDERS
------------------------------------------------------------------------------
THE FUND WILL ISSUE TO ITS SHAREHOLDERS SEMI-ANNUAL AND ANNUAL REPORTS
CONTAINING FINANCIAL STATEMENTS. Financial statements included in annual reports
are audited by the Fund's independent certified public accountants. Shortly
after the end of each year, the Fund will furnish all shareholders with
information necessary for preparing their Federal and state income tax returns.
THE LIFETIME INVESTING ACCOUNT/DISTRIBUTION OPTIONS
------------------------------------------------------------------------------
AFTER AN INVESTOR MAKES AN INITIAL PURCHASE OF FUND SHARES, THE FUND'S TRANSFER
AGENT, THE SHAREHOLDER SERVICES GROUP, INC., WILL SET UP A LIFETIME INVESTING
ACCOUNT FOR THE INVESTOR ON THE FUND'S RECORDS. This account is a complete
record of all transactions between the investor and the Fund which at all times
shows the balance of shares owned. The Fund will not issue share certificates
except upon request.
Each time a transaction takes place in a shareholder's account, the
shareholder will receive a statement showing complete details of the transaction
and the current share balance in the account. (Under certain plans, statements
may be sent only quarterly). THE LIFETIME INVESTING ACCOUNT PERMITS A
SHAREHOLDER TO MAKE ADDITIONAL INVESTMENTS IN SHARES BY SENDING A CHECK FOR $50
OR MORE TO The Shareholder Services Group, Inc.
Any questions concerning a shareholder's account or services available may
be directed by telephone to EATON VANCE SHAREHOLDER SERVICES at 800-225-6265,
extension 2, or in writing to The Shareholder Services Group, Inc., BOS725, P.O.
Box 1559, Boston, MA 02104 (please provide the name of the shareholder, the Fund
and the account number).
THE FOLLOWING DISTRIBUTION OPTIONS WILL BE AVAILABLE TO ALL LIFETIME
INVESTING ACCOUNTS and may be changed as often as desired by written notice to
the Fund's dividend disbursing agent, The Shareholder Services Group, Inc.,
BOS725, P.O. Box 1559, Boston, MA 02104. The currently effective option will
appear on each confirmation statement.
Share Option -- Dividends and capital gains will be reinvested in additional
shares.
Income Option -- Dividends will be paid in cash and capital gains will be
reinvested in additional shares.
Cash Option -- Dividends and capital gains will be paid in cash.
The Share Option will be assigned if no other option is specified.
Distributions, including those reinvested, will be reduced by any withholding
required under the Federal income tax laws.
If the Income Option or Cash Option has been selected, dividend and/or
capital gains distribution checks which are returned by the United States Postal
Service as not deliverable or which remain uncashed for six months or more will
be reinvested in the account in shares at the then current net asset value.
Furthermore, the distribution option on the account will be automatically
changed to the Share Option until such time as the shareholder selects a
different option.
DISTRIBUTION INVESTMENT OPTION. In addition to the distribution options set
forth above, dividends and/or capital gains may be invested in additional shares
of another Eaton Vance fund. Before selecting this option, a shareholder should
obtain a prospectus of the other Eaton Vance fund and consider its objectives
and policies carefully.
"STREET NAME" ACCOUNTS. If shares of the Fund are held in a "street name"
account with an Authorized Firm, all recordkeeping, transaction processing and
payments of distributions relating to the beneficial owner's account will be
performed by the Authorized Firm, and not by the Fund and its transfer agent.
Since the Fund will have no record of the beneficial owner's transactions, a
beneficial owner should contact the Authorized Firm to purchase, redeem or
exchange shares, to make changes in or give instructions concerning the account,
or to obtain information about the account. The transfer of shares in a "street
name" account to an account with another dealer or to an account directly with
the Fund involves special procedures and will require the beneficial owner to
obtain historical purchase information about the shares in the account from the
Authorized Firm. Before establishing a "street name" account with an investment
firm, or transferring the account to another investment firm, an investor
wishing to reinvest distributions should determine whether the firm which will
hold the shares allows reinvestment of distributions in "street name" accounts.
--------------------------------------------------------------------------------
UNDER A LIFETIME INVESTING ACCOUNT A SHAREHOLDER CAN MAKE ADDITIONAL
INVESTMENTS BY SENDING A CHECK OF $50 OR MORE.
------------------------------------------------------------------------------
THE EATON VANCE EXCHANGE PRIVILEGE
------------------------------------------------------------------------------
Shares of the Fund may be exchanged for shares of one or more other funds in
the Eaton Vance Marathon Group of Funds (currently Eaton Vance Equity-Income
Trust, Eaton Vance Liquid Assets Trust (until March 31, 1995), and any EV
Marathon fund, except EV Marathon Short-Term Strategic Income Fund, Eaton Vance
Prime Rate Reserves and any EV Marathon Limited Maturity Fund which are
distributed with a contingent deferred sales charge, on the basis of the net
asset value per share of each fund at the time of the exchange, provided that
such exchange offers are available only in states where shares of such fund
being acquired may be legally sold. Effective March 31, 1995, the EV Marathon
Group of Funds will also include EV Marathon Short-Term Strategic Income Fund,
any EV Marathon Limited Maturity Fund and, when publicly available, Eaton Vance
Money Market Fund (availability expected on or about April 3, 1995).
Each exchange must involve shares which have a net asset value of at least
$1,000. The exchange privilege may be changed or discontinued without penalty.
Shareholders will be given sixty (60) days notice prior to any termination or
material amendment of the exchange privilege. The Fund does not permit the
exchange privilege to be used for "Market Timing" and may terminate the exchange
privilege for any shareholder account engaged in Market Timing activity. Any
shareholder account for which more than two round-trip exchanges are made within
any twelve month period will be deemed to be engaged in Market Timing.
Furthermore, a group of unrelated accounts for which exchanges are entered
contemporaneously by a financial intermediary will be considered to be engaged
in Market Timing.
The Shareholder Services Group, Inc. makes exchanges at the next determined
net asset value after receiving an exchange request in good order (see "How to
Redeem Fund Shares"). Consult The Shareholder Services Group, Inc. for
additional information concerning the exchange privilege. Applications and
prospectuses of the other funds are available from Authorized Firms or the
Principal Underwriter. The prospectus for each fund describes its investment
objectives and policies, and shareholders should obtain a prospectus and
consider these objectives and policies carefully before requesting an exchange.
No contingent deferred sales charge is imposed on exchanges. No contingent
deferred sales charge is imposed on exchanges. For purposes of calculating the
contingent deferred sales charge upon redemption of shares acquired in an
exchange, the contingent deferred sales charge schedule applicable to the shares
at the time of purchase will apply and the purchase of shares acquired in one or
more exchanges is deemed to have occurred at the time of the original purchase
of the exchanged shares. For the contingent deferred sales charge schedule
applicable to the EV Marathon Group of Funds (except EV Marathon Short-Term
Strategic Income Fund and Class I shares of any EV Marathon Limited Maturity
Fund), see "How to Redeem Fund Shares". The contingent deferred sales charge
schedule applicable to EV Marathon Short-Term Strategic Income Fund or Class I
shares of any EV Marathon Limited Maturity Fund is 3%, 2.5%, 2% or 1% in the
event of a redemption occurring in the first, second, third or fourth year,
respectively, after the original share purchase.
Shares of the other funds in the Eaton Vance Marathon Group of Funds may be
exchanged for Fund shares at net asset value per share, but subject to any
restrictions or qualifications set forth in the current prospectus of any such
fund.
Telephone exchanges are accepted by The Shareholder Services Group, Inc.
provided the investor has not disclaimed in writing the use of the privilege. To
effect such exchanges, call The Shareholder Services Group, Inc. at 800-
262-1122 or, within Massachusetts, 617-573-9403, Monday through Friday, 9:00
a.m. to 4:00 p.m. (Eastern Standard Time). Shares acquired by telephone exchange
must be registered in the same name(s) and with the same address as the shares
being exchanged. Neither the Fund, the Principal Underwriter nor The Shareholder
Services Group, Inc., will be responsible for the authenticity of exchange
instructions received by telephone, provided that reasonable procedures to
confirm that instructions communicated are genuine have been followed. Telephone
instructions will be tape recorded. In times of drastic economic or market
changes, a telephone exchange may be difficult to implement. An exchange may
result in a taxable gain or loss.
EATON VANCE SHAREHOLDER SERVICES
------------------------------------------------------------------------------
THE FUND OFFERS THE FOLLOWING SERVICES, WHICH ARE VOLUNTARY, INVOLVE NO EXTRA
CHARGE, AND MAY BE CHANGED OR DISCONTINUED WITHOUT PENALTY AT ANY TIME. Full
information on each of the services described below and an application, where
required, are available from Authorized Firms or the Principal Underwriter. The
cost of administering such services for the benefit of shareholders who
participate in them is borne by the Fund as an expense to all shareholders.
INVEST-BY-MAIL -- FOR PERIODIC SHARE ACCUMULATION: Once the $1,000 minimum
investment has been made, checks of $50 or more payable to the order of the Fund
may be mailed directly to The Shareholder Services Group, Inc., BOS725, P.O. Box
1559, Boston, MA 02104 at any time -- whether or not distributions are
reinvested. The name of the shareholder, the Fund and the account number should
accompany each investment.
BANK DRAFT INVESTING -- FOR REGULAR SHARE ACCUMULATION: Cash investments of $50
or more may be made through the shareholder's checking account via bank draft
each month or quarter. The $1,000 minimum initial investment and small account
redemption policy are waived for these accounts.
WITHDRAWAL PLAN: A shareholder may draw on shareholdings systematically with
monthly or quarterly checks in an aggregate amount that does not exceed annually
12% of the account balance at the time the Plan is established. Such amount will
not be subject to a contingent deferred sales charge. See "How to Redeem Fund
Shares". A minimum deposit of $5,000 in shares is required.
REINVESTMENT PRIVILEGE: A SHAREHOLDER WHO HAS REPURCHASED OR REDEEMED SHARES MAY
REINVEST, WITH CREDIT FOR ANY CONTINGENT DEFERRED SALES CHARGES PAID ON THE
REDEEMED OR REPURCHASED SHARES, ANY PORTION OR ALL OF THE REPURCHASE OR
REDEMPTION PROCEEDS (PLUS THAT AMOUNT NECESSARY TO ACQUIRE A FRACTIONAL SHARE TO
ROUND OFF THE PURCHASE TO THE NEAREST FULL SHARE) IN SHARES OF THE FUND,
provided that the reinvestment is effected within 30 days after such repurchase
or redemption. Shares are sold to a reinvesting shareholder at the next
determined net asset value following timely receipt of a written purchase order
by the Principal Underwriter or by the Fund (or by the Fund's Transfer Agent).
To the extent that any shares are sold at a loss and the proceeds are reinvested
in shares of the Fund (or other shares of the Fund are acquired within the
period beginning 30 days before and ending 30 days after the date of
redemption), some or all of the loss generally will not be allowed as a tax
deduction. Shareholders should consult their tax advisers concerning the tax
consequences of reinvestments.
TAX-SHELTERED RETIREMENT PLANS: Shares of the Fund are available for purchase
in connection with the following tax-sheltered retirement plans:
--Pension and Profit Sharing Plans for self-employed individuals,
corporations and non-profit organizations;
--Individual Retirement Account Plans for individuals and their non-
employed spouses; and
--403(b) Retirement Plans for employees of public school systems, hospitals,
colleges and other non-profit organizations meeting certain requirements
of the Internal Revenue Code.
Detailed information concerning these plans, including certain exceptions to
minimum investment requirements, and copies of the plans are available from the
Principal Underwriter. This information should be read carefully and
consultation with an attorney or tax adviser may be advisable. The information
sets forth the service fee charged for retirement plans and describes the
Federal income tax consequences of establishing a plan. Under all plans,
dividends and distributions will be automatically reinvested in additional
shares.
DISTRIBUTIONS AND TAXES
------------------------------------------------------------------------------
DISTRIBUTIONS
It is the present policy of the Fund to make (A) at least one distribution
annually (normally in December) of all or substantially all of its investment
income earned, less its expenses, and (B) at least one distribution (normally in
December) of all or substantially all of the net capital gains (reduced by any
available capital loss carryforwards from prior years) realized by the Fund, if
any.
Shareholders may reinvest all distributions in shares of the Fund at net
asset value as of the close of business on the record date.
TAXES
Distributions of the Fund from its net investment income, net short-term
capital gains and certain foreign exchange gains are taxable to shareholders as
ordinary income, whether received in cash or reinvested in additional shares. A
portion of distributions from the Fund's net investment income may qualify for
the dividends-received deduction for corporate shareholders.
Capital gains referred to in clause (B) above, if any, realized on sales of
investments and on options, futures and certain forward foreign currency
exchange transactions during the fiscal year, which ends on September 30, will
usually be distributed prior to the end of December. Distributions from the
Fund's net long-term capital gains are taxable to shareholders as long-term
capital gains, whether paid in cash or additional shares of the Fund and
regardless of the length of time Fund shares have been owned by the shareholder.
If shares are purchased shortly before the record date of a distribution,
the shareholder will pay the full price for the shares and then receive some
portion of the price back as a taxable distribution. The amount, timing and
character of distributions to shareholders may be affected by special tax rules
governing the Fund's activities in options, futures and forward foreign currency
exchange transactions.
Certain distributions declared in October, November or December and paid the
following January will be taxable to shareholders as if received on December 31
of the year in which they are declared.
The Fund may be required to pay foreign taxes with respect to income
(possibly including, in some cases, capital gains) that it derives from
investments in foreign securities. If more than 50% of the value of the Fund's
total assets at the close of its taxable year (September 30) consists of
securities in foreign corporations, the Fund may make an election under Section
853 of the Code to pass through to its shareholders the right to take the credit
or deduction for qualifying foreign taxes paid by the Fund during such year. The
Fund will send a written notice of any such election (not later than 60 days
after the close of its taxable year) to each shareholder indicating the amount
to be treated as the proportionate share of such taxes paid to each foreign
country or U.S. possession and the portion of the distribution which represents
income derived from sources within each country or U.S. possession. Each
shareholder will include in gross income (in addition to taxable distributions
received from the Fund) the proportionate share of such taxes, and can treat
such amount as paid by such shareholder for purposes of the deduction or credit
for foreign taxes on the shareholders own Federal income tax return.
Availability of the deduction or credit for foreign taxes is subject to certain
tax restrictions.
Shareholders will receive annually one or more Forms 1099 to assist in
reporting on their Federal and state income tax returns the prior calendar
year's distributions, proceeds from the redemption or exchange of Fund shares,
and Federal income tax (if any) withheld by the Fund's Transfer Agent.
--------------------------------------------------------------------------------
AS A REGULATED INVESTMENT COMPANY UNDER THE INTERNAL REVENUE CODE, THE FUND
DOES NOT PAY FEDERAL INCOME OR EXCISE TAXES TO THE EXTENT THAT IT DISTRIBUTES
TO SHAREHOLDERS ITS NET INVESTMENT INCOME AND NET REALIZED CAPITAL GAINS IN
THE MANNER REQUIRED BY THE CODE.
------------------------------------------------------------------------------
PERFORMANCE INFORMATION
------------------------------------------------------------------------------
FROM TIME TO TIME, THE FUND MAY ADVERTISE ITS YIELD AND/OR AVERAGE ANNUAL TOTAL
RETURN. The current yield for the Fund will be calculated by dividing the net
investment income per share during a recent 30 day period by the maximum
offering price per share (net asset value) of the Fund on the last day of the
period and annualizing the resulting figure. The Fund's average annual total
return is determined by computing the average annual percentage change in value
of $1,000 invested at the maximum public offering price (net asset value) for
specified periods ending with the most recent calendar quarter, assuming
reinvestment of all distributions. The total return calculation assumes a
complete redemption of the investment and the deduction of any contingent
deferred sales charge at the end of the period. The Fund may also publish annual
and cumulative total return figures from time to time.
The Fund may also publish total return figures which do not take into
account any contingent deferred sales charge which may be imposed upon
redemptions at the end of the specified period. Any performance figure which
does not take into account the contingent deferred sales charge would be reduced
to the extent such charge is imposed upon a redemption.
Investors should note that the investment results of the Fund will fluctuate
over time, and any presentation of the Fund's current yield or total return for
any prior period should not be considered a representation of what an investment
may earn or what an investor's yield or total return may be in any future
period.
<PAGE>
INVESTMENT ADVISER
Eaton Vance Management
24 Federal Street
Boston, MA 02110
PRINCIPAL UNDERWRITER
Eaton Vance Distributors, Inc.
24 Federal Street
Boston, MA 02110
(800) 225-6265
CUSTODIAN
Investors Bank & Trust Company
24 Federal Street
Boston, MA 02110
TRANSFER AGENT
The Shareholder Services Group, Inc.
BOS725
P.O. Box 1559
Boston, MA 02104
(800) 262-1122
AUDITORS
Deloitte & Touche LLP
125 Summer Street
Boston, MA 02110
EV MARATHON GOLD &
NATURAL RESOURCES FUND
24 FEDERAL STREET
BOSTON, MA 02110
NRP
EV MARATHON GOLD &
NATURAL RESOURCES
FUND
PROSPECTUS
FEBRUARY 1, 1995
<PAGE>
EATON VANCE GROWTH TRUST
EV MARATHON GOLD & NATURAL RESOURCES FUND
SUPPLEMENT TO STATEMENT OF ADDITIONAL INFORMATION DATED FEBRUARY 1, 1995
Effective August 31, 1995, EV Marathon Gold & Natural Resources Fund
was reorganized and became a series of Eaton Vance Growth Trust, a business
trust organized under the laws of the Commonwealth of Massachusetts. Prior to
the reorganization, the Fund had been a separate Massachusetts business trust.
Except for the fact that the Fund is now a series of Eaton Vance Growth Trust,
shares of the Fund represent the same interest in the Fund's assets, are of the
same class, are subject to the same terms and conditions, fees and expenses and
confer the same rights as when the Fund was a separate trust.
The fiscal year end of the Fund has been changed from September 30 to
August 31.
THE DATE OF THE ATTACHED STATEMENT OF ADDITIONAL INFORMATION IS CHANGED
TO SEPTEMBER 1, 1995.
September 1, 1995 M-NRSAIS
<PAGE>
PART B
INFORMATION REQUIRED IN A STATEMENT OF ADDITIONAL INFORMATION
STATEMENT OF
ADDITIONAL INFORMATION
February 1, 1995
EV MARATHON GOLD & NATURAL RESOURCES FUND
24 Federal Street
Boston, Massachusetts 02110
(800) 225-6265
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TABLE OF CONTENTS Page
Investment Objective and Policies ................................. 2
Investment Restrictions ........................................... 10
Trustees and Officers ............................................. 12
Control Persons and Principal Holders of Securities ............... 14
Investment Adviser ................................................ 14
Custodian ......................................................... 16
Independent Certified Public Accountants .......................... 16
Service for Withdrawal ............................................ 16
Determination of Net Asset Value .................................. 17
Purchase and Redemption of Shares ................................. 17
Investment Performance ............................................ 17
Taxes ............................................................. 19
Principal Underwriter ............................................. 21
Distribution Plan ................................................. 21
Portfolio Security Transactions ................................... 23
Other Information ................................................. 24
Appendix .......................................................... 26
Financial Statements .............................................. 29
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THIS STATEMENT OF ADDITIONAL INFORMATION IS NOT A PROSPECTUS AND IS
AUTHORIZED FOR DISTRIBUTION TO PROSPECTIVE INVESTORS ONLY IF PRECEDED OR
ACCOMPANIED BY THE PROSPECTUS OF EV MARATHON GOLD & NATURAL RESOURCES FUND (THE
"FUND") DATED FEBRUARY 1, 1995, AS SUPPLEMENTED FROM TIME TO TIME. THIS
STATEMENT OF ADDITIONAL INFORMATION SHOULD BE READ IN CONJUNCTION WITH SUCH
PROSPECTUS, A COPY OF WHICH MAY BE OBTAINED WITHOUT CHARGE BY CONTACTING THE
PRINCIPAL UNDERWRITER (SEE BACK COVER FOR ADDRESS AND PHONE NUMBER).
<PAGE>
INVESTMENT OBJECTIVE AND POLICIES
INVESTMENT OBJECTIVE
The investment objective of EV Marathon Gold & Resources Fund (the "Fund")
is capital appreciation and protection of the purchasing power of the
shareholder's capital. Although the Fund will derive income from some of its
investments, current income is not an investment objective and will not be a
primary consideration in selecting securities for the Fund's portfolio.
INVESTMENT POLICIES
The following investment policies supplement those set forth in the
Prospectus. They are not fundamental policies and accordingly may be changed by
the Trustees without obtaining the approval of the Fund's shareholders.
ASSET-RELATED SECURITIES
The Fund may invest in debt securities, preferred stocks or convertible
securities, the principal amount, redemption terms or conversion terms of which
are related to the market price of some natural resource asset such as gold
bullion. For the purposes of the Fund's investment policies, these securities
are referred to as "asset-related securities". The Fund's investment adviser
will evaluate the creditworthiness of the issuer of an asset-related security.
If the asset-related security is backed by a bank letter of credit or other
similar facility, the investment adviser may take such backing into
consideration in determining the creditworthiness of the issuer. While the
market prices for an asset-related security and the related natural resources
asset generally are expected to move in the same direction, there may not be
perfect correlation in the two price movements. Asset-related securities may not
necessarily be secured by a security interest in or claim on the underlying
natural resource assets.
The Fund will not acquire asset-related securities for which no trading
market exists if at the time of acquisition more than 10% of its total assets
are invested in securities which are not readily marketable. The Fund may invest
in asset-related securities without limit when it has the option to put such
securities to the issuer or a stand-by bank or broker and receive the principal
amount or redemption price thereof less transaction costs on no more than seven
days notice or when the Fund has the right to convert or exchange such
securities into a readily marketable security in which it could otherwise invest
upon not less than seven days notice.
The asset-related securities in which the Fund may invest may bear interest
or pay preferred dividends at below market (or even relatively nominal) rates.
The Fund's holdings of such securities therefore may not generate appreciable
current income, and the return from such securities primarily will be from any
profit on the sale, maturity or conversion thereof at a time when the price of
the related asset is higher than it was when the Fund purchased such securities.
FOREIGN INVESTMENTS
Investing in foreign issuers involves certain special considerations,
including those set forth below, which are not typically associated with
investing in U.S. issuers. Since investments in foreign issuers may involve
currencies of foreign countries, and since the Fund may temporarily hold funds
in bank deposits in foreign currencies during completion of investment programs,
the Fund may be affected favorably or unfavorably by changes in currency rates
and in exchange control regulations and may incur costs in connection with
conversions between various currencies.
Since foreign companies are not generally subject to uniform accounting,
auditing and financial reporting standards, practices and requirements
comparable to those applicable to U.S. companies, there may be less publicly
available information about a foreign company than about a domestic company.
Foreign stock markets, while growing in volume of trading activity, have
substantially less volume than the New York Stock Exchange, and securities of
some foreign companies are less liquid and more volatile than securities of
comparable U.S. companies. Similarly, volume and liquidity in most foreign bond
markets is less than in the United States and, at times, volatility of price can
be greater than in the United States. Fixed commissions on foreign stock
exchanges are generally higher than negotiated commissions on U.S. exchanges,
although the Fund endeavors to achieve the most favorable net results on its
portfolio transactions. There is generally less government supervision and
regulation of stock exchanges, brokers and listed companies than in the United
States. Mail service between the United States and foreign countries may be
slower or less reliable than within the United States, thus increasing the risk
of delayed settlements of portfolio transactions or loss of certificates for
portfolio securities. In addition, with respect to certain foreign countries,
there is the possibility of expropriation or confiscatory taxation, political or
social instability, or diplomatic developments which could affect the Fund's
investments in those countries. Moreover, individual foreign economies may
differ favorably or unfavorably from the U.S. economy in such respects as growth
of gross national product, rate of inflation, capital reinvestment, resource
self-sufficiency and balance of payments position. In some countries delayed
settlements are customary which increases the risk of loss.
FORWARD FOREIGN CURRENCY EXCHANGE TRANSACTIONS
The Fund may enter into forward foreign currency exchange contracts. A
forward foreign currency exchange contract involves an obligation to purchase or
sell a specific currency at a future date, which may be any fixed number of days
from the date of the contract agreed upon by the parties, at a price set at the
time of entering into the contract. These contracts are traded in the interbank
market conducted directly between currency traders (usually large commercial
banks) and their customers. A forward contract generally has no deposit
requirement, and no commissions are charged at any stage for trades.
At the maturity of a forward contract the Fund may either accept or make
delivery of the currency specified in the contract or, at or prior to maturity,
enter into a closing transaction involving the purchase or sale of an offsetting
contract. Closing transactions with respect to forward contracts are usually
effected with the currency trader who is a party to the original forward
contract.
The Fund may enter into forward foreign currency exchange contracts in
several circumstances. First, when the Fund enters into a contract for the
purchase or sale of a security denominated in a foreign currency, or when the
Fund anticipates the receipt in a foreign currency of dividend or interest
payments on such a security which it holds, the Fund may desire to "lock in" the
U.S. dollar price of the security or the U.S. dollar equivalent of such dividend
or interest payment, as the case may be. By entering into a forward contract for
the purchase or sale, for a fixed amount of dollars, of the amount of foreign
currency involved in the underlying transactions, the Fund will attempt to
protect itself against an adverse change in the relationship between the U.S.
dollar and the subject foreign currency during the period between the date on
which the security is purchased or sold, or on which the dividend or interest
payment is declared, and the date on which such payments are made or received.
Additionally, when management of the Fund believes that the currency of a
particular foreign country may suffer a substantial decline against the U.S.
dollar, it may enter into a forward contract to sell, for a fixed amount of
dollars, the amount of foreign currency approximating the value of some or all
of the Fund's portfolio securities denominated in such foreign currency. The
precise matching of the forward contract amounts and the value of the securities
involved will not generally be possible because the future value of such
securities in foreign currencies will change as a consequence of market
movements in the value of those securities between the date on which the
contract is entered into and the date it matures. The precise projection of
short-term currency market movements is not possible, and short-term hedging
provides a means of fixing the dollar value of only a portion of the Fund's
foreign assets. The Fund will not enter into forward contracts or maintain a net
exposure to such contracts where the consummation of the contracts would
obligate the Fund to deliver an amount of foreign currency in excess of the
value of the Fund's portfolio securities or other assets denominated in that
currency.
The Fund's custodian will place cash or liquid securities into a segregated
account of the Fund in an amount equal to the value of the Fund's total assets
committed to the consummation of forward foreign currency exchange contracts
requiring the Fund to purchase foreign currencies. If the value of the
securities placed in the segregated account declines, additional cash or
securities will be placed in the account on a daily basis so that the value of
the account will equal the amount of the Fund's commitments with respect to such
contracts.
The Fund generally will not enter into a forward contract with a term of
greater than one year. It also should be realized that this method of protecting
the value of the Fund's portfolio securities against a decline in the value of a
currency does not eliminate fluctuations in the underlying prices of the
securities. It simply establishes a rate of exchange which the Fund can achieve
at some future point in time.
While the Fund will enter into forward contracts to reduce currency exchange
rate risks, transactions in such contracts involve certain other risks. Thus,
while the Fund may benefit from such transactions, unanticipated changes in
currency prices may result in a poorer overall performance for the Fund than if
it had not engaged in any such transactions. Moreover, there may be imperfect
correlation between the Fund's portfolio holdings of securities denominated in a
particular currency and forward contracts entered into by the Fund. Such
imperfect correlation may prevent the Fund from achieving a complete hedge or
expose the Fund to risk of foreign exchange loss.
REPURCHASE AGREEMENTS
The Fund's repurchase agreements will provide that the value of the
collateral underlying the repurchase agreement will always be at least equal to
the repurchase price, including any accrued interest earned on the repurchase
agreement, and will be marked to market daily.
REVERSE REPURCHASE AGREEMENTS
The Fund may enter into reverse repurchase agreements. Under a reverse
repurchase agreement, the Fund temporarily transfers possession of a portfolio
instrument to another party, such as a bank or broker-dealer, in return for
cash. At the same time, the Fund agrees to repurchase the instrument at an
agreed upon time (normally within seven days) and price, which reflects an
interest payment. The Fund expects that it will enter into reverse repurchase
agreements when it is able to invest the cash so acquired at a rate higher than
the cost of the agreement, which would increase the income earned by the Fund.
The Fund could also enter into reverse repurchase agreements as a means of
raising cash to satisfy redemption requests without the necessity of selling
portfolio assets.
When the Fund enters into a reverse repurchase agreement, any fluctuations
in the market value of either the securities transferred to another party or the
securities in which the proceeds may be invested would affect the market value
of the Fund's assets. As a result, such transactions may increase fluctuations
in the market value of the Fund's assets. While there is a risk that large
fluctuations in the market value of the Fund's assets could affect the Fund's
net asset value per share, this risk is not significantly increased by entering
into reverse repurchase agreements, in the opinion of the Fund's investment
adviser, Eaton Vance Management ("Eaton Vance"). Because reverse repurchase
agreements may be considered to be the practical equivalent of borrowing funds,
they constitute a form of leverage. If the Fund reinvests the proceeds of a
reverse repurchase agreement at a rate lower than the cost of the agreement,
entering into the agreement will lower the Fund's yield.
At all times that a reverse repurchase agreement is outstanding, the Fund
will maintain cash and liquid securities in a segregated account at its
custodian bank with a value at least equal to its obligation under the
agreement. Securities and other assets held in the segregated account may not be
sold while the reverse repurchase agreement is outstanding, unless other
suitable assets are substituted. While Eaton Vance does not consider reverse
repurchase agreements to involve a traditional borrowing of money, reverse
repurchase agreements will be included within the aggregate limitation on
"borrowings" contained in the Fund's investment restriction (1) set forth below.
LEVERAGE THROUGH BORROWING
The Investment Company Act of 1940 requires the Fund to maintain continuous
asset coverage of not less than 300% with respect to its borrowings. This allows
the Fund to borrow for leverage purposes an amount equal to as much as 50% of
the value of its net assets (not including such borrowings). If such asset
coverage should decline to less than 300% due to market fluctuations or other
reasons, the Fund may be required to sell some of its portfolio holdings within
three days in order to reduce the Fund's debt and restore the 300% asset
coverage, even though it may be disadvantageous from an investment standpoint to
sell such holdings at that time. The practice of leveraging to enhance
investment return may be viewed as a speculative activity. Leveraging will
exaggerate any increase or decrease in the market value of the Fund's portfolio.
Money borrowed for leveraging will be subject to interest costs which may or may
not exceed the income from the investments acquired with the borrowed funds. The
Fund may also be required to maintain minimum average balances in connection
with such borrowing or to pay a commitment or other fee to maintain a line of
credit; either of these requirements will increase the cost of borrowing over
the stated interest rate.
WRITING AND PURCHASING CALL AND PUT OPTIONS
A call option written by the Fund obligates the Fund to sell specified
securities to the holder of the option at a specified price if the option is
exercised at any time before the expiration date. The Fund will write a covered
call option on a security for the purpose of increasing its return on such
security and/or to partially hedge against a decline in the value of the
security. In particular, when the Fund writes an option which expires
unexercised or is closed out by the Fund at a profit, it will retain the premium
paid for the option, which will increase its gross income and will offset in
part the reduced value of the portfolio security underlying the option, or the
increased cost of acquiring the security for its portfolio. However, if the
price of the underlying security moves adversely to the Fund's position, the
option may be exercised and the Fund will be required to purchase or sell the
underlying security at a disadvantageous price, which may only be partially
offset by the amount of the premium, if at all. The Fund does not intend to
write a covered option on any security if after such transaction more than 15%
of its net assets, as measured by the aggregate value of the securities
underlying all covered calls and puts written by the Fund, would be subject to
such options. The Fund will only write a put option on a security which it
intends to ultimately acquire for its portfolio. A put option written by the
Fund would obligate the Fund to purchase specified securities from the option
holder at a specified price if the option is exercised at any time before the
expiration date.
The Fund may terminate its obligations under a call or put option by
purchasing an option identical to the one it has written. Such purchases are
referred to as "closing purchase transactions."
The Fund may purchase put or call options on securities or securities
indices in anticipation of changes in the value of its existing portfolio
securities or in the prices of securities that the Fund intends to purchase at a
later date. In the event that the expected changes occur, the Fund may be able
to offset adverse changes in the value of its portfolio, in whole or in part,
through the options purchased. The premium paid for a put or call option plus
any transaction costs will reduce the benefit, if any, realized by the Fund upon
exercise or liquidation of the option. Unless the price of the underlying
security changes sufficiently, the option may expire without value to the Fund.
The Fund does not intend to purchase an option on any security if after such
transaction more than 5% of its net assets, as measured by the aggregate of all
premiums paid for all such options held by the Fund, would be so invested.
The Fund would normally purchase call options in anticipation of an increase
in the market value of securities of the type in which the Fund may invest. The
purchase of a call option would entitle the Fund, in return for the premium
paid, to purchase specified securities at a specified price during the option
period. The Fund would ordinarily realize a gain if, during the option period,
the value of such securities exceeded the sum of the exercise price, the premium
paid and transaction costs; otherwise, the Fund would realize a loss on the
purchase of the call option.
The Fund would normally purchase put options in anticipation of a decline in
the market value of securities in its portfolio ("protective puts") or
securities of the type in which it is permitted to invest. The purchase of a put
option would entitle the Fund, in exchange for the premium paid, to sell
specified securities at a specified price during the option period. The purchase
of protective puts is designed merely to offset or hedge against a decline in
the market value of the Fund's portfolio securities. The Fund would ordinarily
realize a gain if, during the option period, the value of the underlying
securities decreased below the exercise price sufficiently to cover the premium
and transaction costs; otherwise, the Fund would realize a loss on the purchase
of the put option. Gains and losses on the purchase of protective put options
would tend to be offset by countervailing changes in the value of underlying
portfolio securities.
The Fund would also be able to enter into closing sale transactions in order
to realize gains or minimize losses on options purchased by the Fund.
The Fund would write and purchase put and call options on securities indices
for the same purposes as the writing and purchase of options on securities.
Options on securities indices are similar to options on securities, except that
the exercise of securities index options requires cash payments and does not
involve the actual purchase or sale of securities. In addition, securities index
options are designed to reflect price fluctuations in a group of securities or
segment of the securities market rather than price fluctuations in a single
security.
SPECIAL RISKS ASSOCIATED WITH OPTIONS ON SECURITIES
An options position may be closed out only on an options exchange which
provides a secondary market for an option of the same series. Although the Fund
will generally purchase or write only those options for which there appears to
be an active secondary market, there is no assurance that a liquid secondary
market on an exchange will exist for any particular option, or at any particular
time. For some options no secondary market on an exchange may exist. In such
event, it might not be possible to effect closing transactions in particular
options, with the result that the Fund would have to exercise its options in
order to realize any profit and would incur transaction costs upon the sale of
underlying securities pursuant to the exercise of put options. If the Fund as a
covered call option writer is unable to effect a closing purchase transaction in
a secondary market, it will not be able to sell the underlying security until
the option expires or it delivers the underlying security upon exercise.
Reasons for the absence of a liquid secondary market on an exchange include
the following: (i) there may be insufficient trading interest in certain
options; (ii) restrictions may be imposed by an exchange on opening transactions
or closing transactions or both; (iii) trading halts, suspensions or other
restrictions may be imposed with respect to particular classes or series of
options or underlying securities; (iv) unusual or unforeseen circumstances may
interrupt normal operations on an exchange; (v) the facilities of an exchange or
the Options Clearing Corporation may not at all times be adequate to handle
current trading volume; or (vi) one or more exchanges could, for economic or
other reasons, decide or be compelled at some future date to discontinue the
trading of options (or a particular class or series of options), in which event
the secondary market on that exchange (or in that class or series of options)
would cease to exist, although outstanding options on that exchange that had
been issued by the Options Clearing Corporation as a result of trades on that
exchange would continue to be exercisable in accordance with their terms.
The Fund will pay brokerage commissions in connection with writing options
and effecting closing purchase transactions, as well as for purchases and sales
of underlying securities. The writing of options could result in significant
increases in the Fund's portfolio turnover rate, especially during periods when
market prices of the underlying securities appreciate.
There is no assurance that higher than anticipated trading activity or other
unforeseen events might not, at times, render certain of the facilities of the
Options Clearing Corporation inadequate, and thereby result in the institution
by an exchange of special procedures which may interfere with the timely
execution of customers' orders.
The amount of the premiums which the Fund may pay or receive may be
adversely affected as new or existing institutions, including other investment
companies, engage in or increase their option purchasing and writing activities.
FUTURES TRANSACTIONS
Futures Contracts. A change in the level of interest rates, currency exchange
rates or securities prices may affect the value of the Fund's portfolio
securities (or of securities that the Fund expects to purchase). To hedge
against changes in rates or prices, or for non-hedging purposes, the Fund may
enter into (i) futures contracts for the purchase or sale of securities and
currency, (ii) futures contracts on securities indices and (iii) futures
contracts on other financial instruments and indices. In the United States,
futures contracts are traded on exchanges or boards of trade that are licensed
and regulated by the Commodity Futures Trading Commission ("CFTC") and must be
executed through a futures commission merchant or brokerage firm which is a
member of the relevant exchange. The Fund may also enter into futures contracts
traded on a foreign exchange if it is determined by the investment adviser that
trading on such exchange does not subject the Fund to risks, including credit
and liquidity risks, that are materially greater than the risks associated with
trading on United States exchanges. The futures contracts may be based on
various securities and commodities in which the Fund may invest, foreign
currencies, certificates of deposit, Eurodollar time deposits, securities
indices, economic indices (such as the Consumer Price Indices compiled by the
U.S. Department of Labor) and other financial instruments and indices.
Futures Contracts on Securities and Currency. A futures contract on securities
or currency is a binding contractual commitment which, if held to maturity, will
result in an obligation to make or accept delivery, during a particular month,
of securities having a standardized face value and rate of return or of the
specified currency. By purchasing futures on securities or currency, the Fund
will legally obligate itself to accept delivery of the underlying security or
currency and pay the agreed price; by selling futures on securities or currency,
it will legally obligate itself to make delivery of the security or currency
against payment of the agreed price.
Positions taken in the futures markets are not normally held to maturity,
but are instead liquidated through offsetting transactions which may result in a
profit or a loss. While the Fund's futures contracts on securities or currency
will usually be liquidated in this manner, it may instead make or take delivery
of the underlying securities or currency whenever it appears economically
advantageous for the Fund to do so. A clearing corporation associated with the
exchange on which futures on securities or currency are traded guarantees that,
if still open, the sale or purchase will be performed on the settlement date.
Futures Contracts on Securities Indices. Futures contracts on securities or
other indices do not require the physical delivery of securities, but merely
provide for profits and losses resulting from changes in the market value of a
contract to be credited or debited at the close of each trading day to the
respective accounts of the parties to the contract. On the contract's expiration
date a final cash settlement occurs and the future positions is simply closed
out. Changes in the market value of a particular futures contract reflect
changes in the level of the index on which the futures contract is based.
Hedging Strategies. Hedging by use of futures contracts seeks to establish more
certainly than would otherwise be possible the effective price or rate of return
on portfolio securities or securities that the Fund proposes to acquire. The
Fund may, for example, take a "short" position in the futures market by selling
futures contracts in order to hedge against an anticipated rise in interest
rates or a decline in market prices or foreign currency exchange rates that
would adversely affect the value of the Fund's portfolio securities. Such
futures contracts may include contracts for the future delivery of securities
held by the Fund (or currency in which such securities are denominated) or
securities with characteristics similar to those of the Fund's portfolio
securities. If, in the opinion of Eaton Vance, there is a sufficient degree of
correlation between price trends for the Fund's portfolio securities and futures
contracts based on other financial instruments, securities indices or other
indices, the Fund may also enter into such futures contracts as part of its
hedging strategy. Although under some circumstances prices of securities in the
Fund's portfolio may be more or less volatile than prices of such futures
contracts, Eaton Vance will attempt to estimate the extent of this difference in
volatility based on historical patterns and to compensate for it by having the
Fund enter into a greater or lesser number of futures contracts or by attempting
to achieve only a partial hedge against price changes affecting the Fund's
securities portfolio. When hedging of this character is successful, any
depreciation in the value of portfolio securities will be substantially offset
by appreciation in the value of the futures position.
On other occasions, the Fund may take a "long" position by purchasing such
futures contracts. This would be done, for example, when the Fund anticipates
the subsequent purchase of particular securities when it has the necessary cash,
but expects the prices then available in the securities market or foreign
currency exchange rates to be less favorable than prices or rates that are
currently available.
Options on Futures Contracts. The Fund may purchase and write call and put
options on futures contracts which are traded on a United States exchange or
board of trade. An option on a futures contract gives the purchaser the right,
in return for the premium paid, to assume a position in a futures contract at a
specified exercise price at any time during the option period. Upon exercise of
the option, the writer of the option is obligated to convey the appropriate
futures position to the holder of the option. If an option is exercised on the
last trading day before the expiration date of the option, a cash settlement
will be made in an amount equal to the difference between the closing price of
the futures contract and the exercise price of the option.
The Fund may use options on futures contracts for bona fide hedging purposes
as defined below or for non-hedging purposes subject to the limitations imposed
by CFTC regulations. If the Fund purchases a call (put) option on a futures
contract it benefits from any increase (decrease) in the value of the futures
contract, but is subject to the risk of decrease (increase) in value of the
futures contract. The benefits received are reduced by the amount of the premium
and transaction costs paid by the Fund for the option. If market conditions do
not favor the exercise of the option, the Fund's loss is limited to the amount
of such premium and transaction costs paid by the Fund for the option.
If the Fund writes a call (put) option on a futures contract, the Fund
receives a premium but assumes the risk of a rise (decline) in value in the
underlying futures contract. If the option is not exercised, the Fund gains the
amount of the premium, which may partially offset unfavorable changes in the
value of securities (or the currency in which such securities are denominated)
held or to be acquired for the Fund's portfolio. If the option is exercised, the
Fund will incur a loss, which will be reduced by the amount of the premium it
receives. However, depending on the degree of correlation between changes in the
value of its portfolio securities (or the currency in which they are
denominated) and changes in the value of futures positions, the Fund's losses
from writing options on futures may be partially offset by favorable changes in
the value of portfolio securities or in the cost of securities to be acquired.
The holder or writer of an option on a futures contract may terminate its
position by selling or purchasing an offsetting option of the same series. There
is no guarantee that such closing transactions can be effected. The Fund's
ability to establish and close out positions on such options will be subject to
the development and maintenance of a liquid market.
Limitations on the Use of Futures Contracts and Options on Futures Contracts.
The Fund will engage in futures and related options transactions for bona fide
hedging or non-hedging purposes as defined in or permitted by CFTC regulations.
The Fund will determine that the price fluctuations in the futures contracts and
options on futures used for hedging purposes are substantially related to price
fluctuations in securities (or the currency in which they are denominated) held
by the Fund or which it expects to purchase. Except as stated below, the Fund's
futures transactions will be entered into for traditional hedging purposes --
i.e, futures contracts will be sold to protect against a decline in the price of
securities that the Fund owns, or futures contracts will be purchased to protect
the Fund against an increase in the price of securities it intends to purchase.
As evidence of this hedging intent, the Fund expects that on 75% or more of the
occasions on which it takes a long futures (or option) position (involving the
purchase of futures contracts), the Fund will have purchased, or will be in the
process of purchasing, equivalent amounts of related securities in the cash
market at the time when the futures (or option) position is closed out. However,
in particular cases, when it is economically advantageous for the Fund to do so,
a long futures position may be terminated (or an option may expire) without the
corresponding purchase of securities. As an alternative to compliance with the
bona fide hedging definition, a CFTC regulation now permits the Fund to elect to
comply with a different test, under which the aggregate initial margin and
premiums required to establish non-hedging positions in futures contracts and
options on futures will not exceed 5% of the Fund's net asset value after taking
into account unrealized profits and losses on such positions and excluding the
in-the-money amount of such options. The Fund will engage in transactions in
futures contracts and related options only to the extent such transactions are
consistent with the requirements of the Internal Revenue Code for maintaining
its qualification as a regulated investment company for Federal income tax
purposes (see "Taxes").
The Fund will be required, in connection with transactions in futures
contracts and the writing of options on futures, to make margin deposits, which
will be held by the Fund's custodian for the benefit of the futures commission
merchant through whom the Fund engages in such futures and options transactions.
Cash or liquid debt securities required to be segregated in connection with a
"long" futures position taken by the Fund will also be held by the custodian in
a segregated account and will be marked to market daily.
SPECIAL RISKS ASSOCIATED WITH FORWARD CONTRACTS, FOREIGN CURRENCY FUTURES
CONTRACTS AND OPTIONS THEREON AND OPTIONS ON FOREIGN CURRENCIES
Transactions in forward contracts, as well as futures and options on foreign
currencies, are subject to the risk of governmental actions affecting trading in
or the prices of currencies underlying such contracts, which could restrict or
eliminate trading and could have a substantial adverse effect on the value of
positions held by the Fund. In addition, the value of such positions could be
adversely affected by a number of other complex political and economic factors
applicable to the countries issuing the underlying currencies.
Further, unlike trading in most other types of instruments, there is no
systematic reporting of last sale information with respect to the foreign
currencies underlying forward contracts, futures contracts and options. As a
result, the available information on which the Fund's trading systems will be
based may not be as complete as the comparable data on which the Fund makes
investment and trading decisions in connection with securities and other
transactions. Moreover, because the foreign currency market is a global,
twenty-four hour market, events could occur on that market which will not be
reflected in the forward, futures or options markets until the following day,
thereby preventing the Fund from responding to such events in a timely manner.
Settlements of over-the-counter forward contracts or of an exercise of
foreign currency options generally must occur within the country issuing the
underlying currency, which in turn requires parties to such contracts to accept
or make delivery of such currencies in conformity with any United States or
foreign restrictions and regulations regarding the maintenance of foreign
banking relationships, fees, taxes or other charges.
Unlike currency futures contracts and exchange-traded options, options on
foreign currencies and forward contracts are not traded on contract markets
regulated by the CFTC or (with the exception of certain foreign currency
options) the SEC. To the contrary, such instruments are traded through financial
institutions acting as market-makers. (Foreign currency options are also traded
on the Philadelphia Stock Exchange subject to SEC regulation). In an
over-the-counter trading environment, many of the protections associated with
transactions on exchanges will not be available. For example, there are no daily
price fluctuation limits, and adverse market movements could therefore continue
to an unlimited extent over a period of time. Although the purchaser of an
option cannot lose more than the amount of the premium plus related transaction
costs, this entire amount could be lost. Moreover, an option writer could lose
amounts substantially in excess of its investment, due to the margin and
collateral requirements associated with such option positions. Similarly, there
is no limit on the amount of potential losses on forward contracts to which the
Fund is a party.
In addition, over-the-counter transactions can only be entered into with a
financial institution willing to take the opposite side, as principal, of the
Fund's position unless the institution acts as broker and is able to find
another counterparty willing to enter into the transaction with the Fund. Where
no such counterparty is available, it will not be possible to enter into a
desired transaction. There also may be no liquid secondary market in the trading
of over-the-counter contracts, and the Fund may be unable to close out options
purchased or written, or forward contracts entered into, until their exercise,
expiration or maturity. This in turn could limit the Fund's ability to realize
profits or to reduce losses on open positions and could result in greater
losses.
Further, over-the-counter transactions are not backed by the guarantee of an
exchange clearing house, and the Fund will thererfore be subject to the risk of
default by, or the bankruptcy of, the financial institution serving as its
counterparty. One or more such institutions also may decide to discontinue their
role as market-makers in a particular currency, thereby restricting the Fund's
ability to enter into desired hedging transactions. A Fund will enter into
over-the-counter transactions only with parties whose creditworthiness has been
reviewed and found satisfactory by the Fund's investment adviser.
Over-the-counter options on foreign currencies, like exchange-traded
commodity futures contracts and commodity option contracts, are within the
exclusive regulatory jurisdiction of the CFTC, which currently permits the
trading of such options, but only subject to a number of conditions regarding
the commercial purpose of the purchaser of such option. The Fund is not able to
determine at this time whether or to what extent the CFTC may impose additional
restrictions on the trading of over-the-counter options on foreign currencies at
some point in the future, or the effect that any such restrictions may have on
the hedging strategies to be implemented by the Fund.
CFTC regulations require that the Fund not enter into transactions in
commodity futures contracts or commodity option contracts for which the
aggregate initial margin and premiums exceed 5% of the fair market value of the
Fund's assets. Premiums paid to purchase over-the-counter options on foreign
currencies, and margin deposited in connection with the writing of such options,
are required to be included in determining compliance with this requirement.
This could, depending upon the Fund's existing positions in futures contracts
and options on futures contracts, limit the Fund's ability to purchase or write
options on foreign currencies. Conversely, the existence of open positions in
options on foreign currencies could limit the ability of the Fund to enter into
desired transactions in other options or futures contracts.
While forward contracts are not presently subject to regulation by the CFTC,
the CFTC may in the future assert or be granted authority to regulate such
instruments. In such event, the Fund's ability to utilize forward contracts in
the manner set forth above could be restricted.
Options on foreign currencies traded on a national securities exchange are
within the jurisdiction of the SEC, as are other securities traded on such
exchanges. As a result, many of the protections provided to traders on organized
exchanges will be available with respect to such transactions. In particular,
all foreign currency option positions entered into on a national securities
exchange are cleared and guaranteed by the Options Clearing Corporation ("OCC"),
thereby reducing the risk of counterparty default. Further, a liquid secondary
market in options traded on a national securities exchange may be more readily
available than in the over-the-counter market, potentially permitting the Fund
to liquidate open positions at a profit prior to exercise or expiration, or to
limit losses in the event of adverse market movements.
The purchase and sale of exchange-traded foreign currency options, however,
is subject to the risks of the availability of a liquid secondary market
described above, as well as the risks regarding adverse market movements,
margining of options written, the nature of the foreign currency market,
possible intervention by governmental authorities and the effects of other
political and economic events. In addition, exchange-traded options on foreign
currencies involve certain risks not presented by the over-the-counter market.
For example, exercise and settlement of such options must be made exclusively
through the OCC, which has established banking relationships in applicable
foreign countries for this purpose. As a result, the OCC may, if it determines
that foreign governmental restrictions or taxes would prevent the orderly
settlement of foreign currency option exercises, or would result in undue
burdens on the OCC or its clearing member, impose special procedures for
exercise and settlement, such as technical changes in the mechanics of delivery
of currency, the fixing of dollar settlement prices or prohibitions on exercise.
DIRECT PLACEMENT SECURITIES AND VENTURE CAPITAL INVESTMENTS
Assets of the Fund may be invested in direct placement securities of small,
unseasoned companies and in the securities of small, unseasoned Venture Capital
companies as well as in the securities of large and well known companies. There
may be little operating history and less available information about such
unseasoned companies than about large and well known companies, and it may be
more difficult to evaluate the management of a small, unseasoned company. The
securities of an unseasoned company may have a limited trading market, which may
adversely affect their disposition by the Fund. In view of the limited liquidity
of this type of investment, management will not permit a substantial portion of
the Fund to be so invested. The making of this type of investment is subject to
the policies of the Fund set forth under "Investment Restrictions" below.
CONVERTIBLE SECURITIES
The Fund may from time to time invest a portion of its assets in debt
securities and preferred stocks which are convertible into, or carry the right
to purchase, common stock or other equity securities. The debt security or
preferred stock may itself be convertible into or exchangeable for equity
securities, or the purchase right may be evidenced by warrants attached to the
security or acquired as part of a unit with the security. Convertible securities
may be purchased for their appreciation potential when they yield more than the
underlying securities at the time of purchase or when they are considered to
present less risk of principal loss than the underlying securities. Generally
speaking, the interest or dividend yield of a convertible security is somewhat
less than that of a non-convertible security of similar quality issued by the
same company.
WARRANTS
The Fund may purchase warrants, but does not intend to invest more than 5%
of its net assets at the time of purchase in warrants (other than those that
have been acquired in units or attached to other securities). Warrants are an
option to purchase equity securities at a specific price valid for a specific
period of time. They do not represent ownership of the securities, but only the
right to buy them. The prices of warrants do not necessarily move parallel to
the prices of the underlying securities. Warrants may become valueless if not
sold or exercised prior to their expiration.
PORTFOLIO TURNOVER
The Fund cannot accurately predict its portfolio turnover rate, but it is
anticipated that the annual turnover rate will generally not exceed 200%
(excluding turnover of securities having a maturity of one year or less). A 200%
annual turnover rate would occur, for example, if all the securities in the
portfolio were replaced twice in a period of one year. A high turnover rate
(such as 200%) necessarily involves greater expenses to the Fund. The Fund
engages in portfolio trading (including short-term trading) if it believes that
a transaction including all costs will help in achieving its investment
objective by enhancing the Fund's net asset value or potential performance.
INVESTMENT RESTRICTIONS
Whenever an investment policy or investment restriction set forth in the
Fund's Prospectus or Statement of Additional Information states a maximum
percentage of the Fund's assets that may be invested in any security or other
asset or describes a policy regarding quality standards, such percentage
limitation or standard shall be determined immediately after and as a result of
the Fund's acquisition of such security or other asset. Accordingly, any later
increase or decrease resulting from a change in values, assets or other
circumstances or any subsequent rating change made by a rating service will not
compel the Fund to dispose of such security or other asset.
The following investment restrictions (1) through (14) are designated as
fundamental policies and as such cannot be changed without the approval of the
holders of a majority of the Fund's outstanding voting securities, which as used
in this Statement of Additional Information means the lesser of (a) 67% of the
shares of the Fund present or represented by proxy at a meeting if the holders
of more than 50% of the shares are present or represented at the meeting or (b)
more than 50% of the shares of the Fund. The Fund will not:
(1) Borrow money, except that it may borrow
(i) from banks to purchase or carry securities, commodities,
commodities contracts or other investments, or
(ii) from banks for temporary or emergency purposes not in excess of
10% of its gross assets taken at market value, or
(iii) by entering into reverse repurchase agreements,
if, immediately after any such borrowing, the value of the Fund's assets,
including all borrowings then outstanding, less its liabilities, is equal to at
least 300% of the aggregate amount of borrowings then outstanding (for the
purpose of determining the 300% asset coverage, the Fund's liabilities will not
include amounts borrowed). Any such borrowings may be secured or unsecured. The
Fund may issue securities (including senior securities) appropriate to evidence
the indebtedness, including reverse repurchase agreements, which the Fund is
permitted to incur.
(2) Pledge its assets, except that the Fund may pledge not more than
one-third of its total assets (taken at current value) to secure borrowings made
in accordance with investment restriction (1) above; for the purpose of this
restriction the deposit of cash, cash equivalents, portfolio securities or other
assets in a segregated account with the Fund's custodian in connection with any
of the Fund's investment transactions is not considered to be a pledge.
(3) Purchase securities on margin (but the Fund may obtain such short-term
credits as may be necessary for the clearance of purchases and sales of
securities).
(4) Make short sales of securities, unless at all times when a short sale
position is open the Fund either owns an equal amount of such securities or owns
securities convertible into or exchangeable for securities of the same issue as,
and equal in amount to, the securities sold short.
(5) Purchase securities of any issuer if such purchase, at the time thereof,
would cause more than 10% of the total outstanding voting securities of such
issuer to be held by the Fund; this restriction will not apply during periods
when management of the Fund anticipates significant economic, political or
financial instability.
(6) Purchase securities issued by any other investment company, except in
connection with a merger, consolidation, acquisition of assets or
reorganization, or by purchase in the open market of securities of closed-end
investment companies where no underwriter's or dealer's commission or profit,
other than customary broker's commission, is involved and only if immediately
thereafter not more than 10% of the Fund's total assets (taken at current value)
would be invested in such securities.
(7) Purchase or retain in its portfolio any securities issued by an issuer
any of whose officers, directors, trustees or security holders is an officer or
Trustee of the Fund or is a member, officer, director or trustee of any
investment adviser of the Fund, if after the purchase of the securities of such
issuer by the Fund one or more of such persons owns beneficially more than / of
1% of the shares or securities or both (all taken at current value) of such
issuer and such persons owning more than / of 1% of such shares or securities
together own beneficially more than 5% of such shares or securities or both (all
taken at current value).
(8) Underwrite securities issued by other persons, except insofar as it may
technically be deemed to be an underwriter under the Securities Act of 1933 in
selling or disposing of a portfolio security.
(9) Make loans to other persons, except by (a) the acquisition of money
market instruments, debt securities and other obligations in which the Fund is
authorized to invest in accordance with its investment objective and policies,
(b) entering into repurchase agreements and (c) lending its portfolio
securities.
(10) Invest for the purpose of gaining control of a company's management.
(11) Purchase or sell real estate, although it may purchase and sell
securities which are secured by interests in real estate or interests therein
and securities of issuers (including real estate investment trusts) which invest
or deal in real estate or interests therein.
(12) Buy investment securities from or sell them to any of its officers or
Trustees, its investment adviser or its principal underwriter, as principal;
provided, however, that any such person or firm may be employed as a broker upon
customary terms.
(13) Purchase oil, gas or other mineral leases or purchase partnership
interests in oil, gas or other mineral exploration or development programs; this
restriction shall not be deemed to limit or restrict the Fund's investments in
securities issued by companies that engage in oil, gas or other mineral
exploration or development activities.
(14) Knowingly (i) purchase a security issued by a Venture Capital Company
(a company the securities of which have no public market at the time the
investment is made) or which at the time of purchase cannot be readily resold
because of legal or contractual restrictions or for which at the time of
purchase there is clearly no readily available market, (ii) invest in options on
foreign currencies which are not traded on an exchange or board of trade or
(iii) enter into a repurchase agreement maturing in more than seven days if, as
a result, more than 10% of the Fund's total assets (taken at current value)
would be invested in such securities, options and repurchase agreements. The
following securities are not subject to this restriction -- securities which the
Fund has a right to convert or exchange into a readily marketable security in
which it could otherwise invest upon not less than seven days notice; securities
which the Fund has the option to put to the issuer or a stand-by bank or broker
and receive the principal amount of redemption price less transaction costs on
not more than seven days notice; and securities (purchased by the Fund at a time
when the issuer was a Venture Capital Company) of a company which has ceased to
be a Venture Capital Company provided that such securities are readily
marketable.
For the purpose of investment restrictions (1), (2) and (3), the
arrangements (including escrow, margin and collateral arrangements) made by the
Fund with respect to its transactions in all types of options, futures
contracts, options on futures contracts, forward contracts, currencies, coins,
bullion, and commodities and options thereon shall not be considered to be (i) a
borrowing of money or the issuance of securities (including senior securities)
by the Fund, (ii) a pledge of its assets, or (iii) the purchase of a security on
margin.
In connection with investment restriction (9) above, the Fund has no present
intention of lending its portfolio securities. The Fund would lend its portfolio
securities to increase its income only if and when the Trustees determine such
activity to be appropriate, and such loans would be subject to such policies and
conditions as the Trustees may impose to safeguard the Fund's assets. The
Prospectus and Statement of Additional Information of the Fund will be amended
to describe Fund lending policies prior to the lending of portfolio securities,
except to the extent repurchase agreements may be deemed to be loans of
securities.
The Fund has adopted the following additional fundamental investment
policies which may not be changed without the approval of the holders of a
majority of the Fund's outstanding voting securities:
(A) During normal market conditions the Fund will invest at least 25% of
its total assets in the natural resource group of industries, except when
such percentage is reduced as a result of a decrease in value of the assets
so invested or during such times when management believes that the assets so
invested should be redeployed for defensive purposes or during such times
when management believes that the assets so invested should be redeployed in
obligations or other securities, the principal amount, redemption terms or
conversion terms of which are related to the market price of some natural
resource asset such as gold bullion; the Fund may invest more than 25% of
its total assets in any industry in the natural resource group of
industries; and the Fund may invest up to 25% of its total assets, taken at
market value at the time of each investment, in any other industry. For the
purposes of this policy, an investment by the Fund in gold or silver
bullion, other precious metals, strategic metals, or gold or silver coins,
or in securities issued by companies deemed by the Fund's investment adviser
to be engaged in the natural resource investment sector (as from time to
time described in the Fund's Prospectus), shall be considered as an
investment in the natural resource group of industries.
(B) The Fund may purchase and sell commodities and commodities contracts
(including without limitation futures contracts and options on futures
contracts) of all types and kinds.
In connection with investment policy (B) above, the Fund's present
intentions with respect to its investments in commodities and commodities
contracts are set forth in the Fund's Prospectus and elsewhere in this Statement
of Additional Information. The Fund would make other types of investments in
commodities and commodities contracts only if and when the Trustees determine
such activity is appropriate; any such additional investment activity will be
disclosed in the Fund's Prospectus or Statement of Additional Information or in
an amendment to either of them.
The Fund has adopted the following policies which may be changed without
shareholder approval. The Fund currently does not intend to purchase the
securities of any one issuer (other than securities or obligations issued or
guaranteed by the U.S. Government or any of its agencies or instrumentalities)
if, as a result of such purchase, more than 10% of the Fund's total assets
(taken at current value) would be invested in the securities of such issuer;
this policy does not apply to or limit the Fund's investments in certificates of
deposit, bankers' acceptances or time deposits of banking and thrift
institutions. Except for obligations issued or guaranteed by the U.S. Government
or any of its agencies or instrumentalities, the Fund will not knowingly
purchase a security issued by a company (including predecessors) with less than
three years operating history (unless such security is rated at least B or a
comparable rating at the time of purchase by at least one nationally recognized
rating service or unless such company is a regulated public utility or pipeline
company) if, as a result of such purchase, more than 5% of the Fund's total
assets (taken at current value) would be invested in such securities. For a
description of the securities ratings, see the Appendix. The Fund will not
purchase warrants if, as a result of such purchase, more than 5% of the Fund's
net assets, taken at current value, would be invested in warrants and the value
of such warrants which are not listed on the New York or American Stock Exchange
may not exceed 2% of the Fund's net assets); this policy does not apply to or
restrict warrants acquired by the Fund in units or attached to securities,
inasmuch as such warrants are deemed to be without value. The Fund will not
purchase or sell real property (including limited partnership interests, but
excluding readily marketable interests in real estate investment trusts or
readily marketable securities of companies which invest in real estate).
In order to permit the sale of shares of the Fund in certain states, the
Fund may make commitments more restrictive than the policies described above.
Should the Fund determine that any such commitment is no longer in the best
interests of the Fund and its shareholders, it will revoke the commitment by
terminating sales of its shares in the state(s) involved.
TRUSTEES AND OFFICERS
The Fund's Trustees and officers are listed below. Except as indicated, each
individual has held the office shown or other offices in the same company for
the last five years. Unless otherwise noted, the business address of each
Trustee and officer is 24 Federal Street, Boston, Massachusetts 02110, which is
also the address of Eaton Vance Management; Eaton Vance's wholly-owned
subdisiary, Boston Management and Research ("BMR"); Eaton Vance's parent, Eaton
Vance Corp. ("EVC"); and of Eaton Vance's and BMR's trustee, Eaton Vance, Inc.
("EV"). Eaton Vance and EV are both wholly-owned subsidiaries of EVC. Those
Trustees and officers who are "interested persons" of the Fund, Eaton Vance,
BMR, EVC or EV, as defined in the Investment Company Act of 1940, by virtue of
their affiliation with any one or more of the Fund, Eaton Vance, BMR, EVC or EV,
are indicated by an asterisk(*).
JAMES B. HAWKES (53), PRESIDENT AND TRUSTEE*
Executive Vice President of Eaton Vance, BMR, EVC and EV, and a Director of EVC
and EV. Director, Trustee and officer of various investment companies managed by
Eaton Vance or BMR.
LANDON T. CLAY (68), VICE PRESIDENT AND TRUSTEE*
Chairman of Eaton Vance, BMR, EVC and EV, and Director of EVC and EV. Director
or Trustee and officer of various investment companies managed by Eaton Vance or
BMR. Mr. Clay was elected a Trustee of the Fund on December 16, 1991.
DONALD R. DWIGHT (63), TRUSTEE
President of Dwight Partners, Inc. (a corporate relations and communications
company) founded in 1988; Chairman of the Board of Newspapers of New England,
Inc., since 1983. Director or Trustee of various investment companies managed
by Eaton Vance or BMR.
Address: Clover Mill Lane, Lyme, New Hampshire 03768
SAMUEL L. HAYES, III (59), TRUSTEE
Jacob H. Schiff Professor of Investment Banking, Harvard University Graduate
School of Business Administration. Director or Trustee of various investment
companies managed by Eaton Vance or BMR.
Address: Harvard Business School, Soldiers Field Road, Boston, Massachusetts
02134
NORTON H. REAMER (59), TRUSTEE
President and Director, United Asset Management Corporation, a holding company
owning institutional investment management firms. Chairman, President and
Director, The Regis Fund, Inc. (mutual fund). Director or Trustee of various
investment companies managed by Eaton Vance or BMR.
Address: One International Place, Boston, Massachusetts 02110
JOHN L. THORNDIKE (68), TRUSTEE
Director, Fiduciary Trust Company. Director or Trustee of various investment
companies managed by Eaton Vance or BMR.
Address: 175 Federal Street, Boston, Massachusetts 02110
JACK L. TREYNOR (64), TRUSTEE
Investment Adviser and Consultant. Director or Trustee of various investment
companies managed by Eaton Vance or BMR.
Address: 504 Via Almar, Palos Verdes Estates, California 90274
THOMAS E. FAUST, JR. (36), VICE PRESIDENT*
Vice President of Eaton Vance, BMR and EV. Officer of various investment
companies managed by Eaton Vance or BMR.
THOMAS OTIS (63), SECRETARY*
Vice President and Secretary of Eaton Vance, BMR, EVC and EV. Officer of various
investment companies managed by Eaton Vance or BMR.
JAMES L. O'CONNOR (49), TREASURER*
Vice President of Eaton Vance, BMR and EV. Officer of various other investment
companies managed by Eaton Vance or BMR.
WILLIAM J. AUSTIN, JR. (43), ASSISTANT TREASURER*
Assistant Vice President of Eaton Vance, BMR and EV. Officer of various
investment companies managed by Eaton Vance or BMR. Mr. Austin was elected
Assistant Treasurer of the Fund on June 22, 1992.
JANET E. SANDERS (59), ASSISTANT TREASURER AND ASSISTANT SECRETARY* Vice
President of Eaton Vance, BMR and EV. Officer of various investment companies
managed by Eaton Vance or BMR.
Messrs. Thorndike (Chairman), Hayes and Reamer are members of the Special
Committee of the Board of Trustees of the Fund. The Special Committee's
functions include a continuous review of the Fund's contractual relationship
with the investment adviser, making recommendations to the Trustees regarding
the compensation of those Trustees who are not members of the investment
adviser's organization, and making recommendations to the Trustees regarding
candidates to fill vacancies, as and when they occur, in the ranks of those
Trustees who are not "interested persons" of the Fund or the investment adviser.
Messrs. Treynor (Chairman) and Dwight are members of the Audit Committee of
the Board of Trustees. The Audit Committee's functions include making
recommendations to the Trustees regarding the selection of the independent
certified public accountants, and reviewing with such accountants and the
Treasurer of the Fund matters relative to accounting and auditing practices and
procedures, accounting records, internal accounting controls, and the functions
performed by the custodian, transfer agent and dividend disbursing agent of the
Fund.
The fees and expenses of those Trustees of the Fund who are not members of
the Eaton Vance organization are paid by the Fund. During the fiscal year ended
September 30, 1994, the Trustees of the Fund earned the following compensation
in their capacities as Trustees from the Fund and other funds in the Eaton Vance
fund complex:
<TABLE>
<CAPTION>
AGGREGATE RETIREMENT TOTAL COMPENSATION
COMPENSATION BENEFIT ACCRUED FROM FUND AND
NAME FROM FUND FROM FUND COMPLEX FUND COMPLEX<F1>
---- ------------ ----------------- ------------------
<S> <C> <C> <C>
Donald R. Dwight .................. $102 -- 0 -- $132,500
Samuel L. Hayes, III .............. 99 -- 0 -- 140,000
Norton H. Reamer .................. 94 -- 0 -- 132,500
John L. Thorndike ................. 96 -- 0 -- 137,500
Jack L. Treynor ................... 102 -- 0 -- 137,500
<FN>
<F1> The Eaton Vance fund complex consists of 201 registered investment companies or series thereof.
</TABLE>
Trustees of the Fund that are not affiliated with the Investment Adviser may
elect to defer receipt of all or a percentage of their annual fees in accordance
with the terms of a Trustees Deferred Compensation Plan (the "Plan"). Under the
Plan, an eligible Trustee may elect to have his deferred fees invested by the
Fund in the shares of one or more funds in the Eaton Vance Family of Funds, and
the amount paid to the Trustees under the Plan will be determined based upon the
performance of such investments. Deferral of Trustees' fees in accordance with
the Plan will have a negligible effect on the Fund's assets, liabilities, and
net income per share, and will not obligate the Fund to retain the services of
any Trustee or obligate the Fund to pay any particular level of compensation to
the Trustee.
CONTROL PERSONS AND PRINCIPAL HOLDERS OF SECURITIES
As at December 31, 1994, the Trustees and officers of the Fund, as a group,
owned in the aggregate less than 1% of the outstanding shares of the Fund. As of
December 31, 1994, Merrill Lynch, Pierce, Fenner & Smith, Inc., New Brunswick,
NJ was the record owner of approximately 19.5% of the outstanding shares, which
they held on behalf of their customers who are the beneficial owners of such
shares and as to which they had voting power under certain limited
circumstances. To the knowledge of the Fund, no other person beneficially owns
5% or more of its outstanding shares.
INVESTMENT ADVISER
The Fund engages Eaton Vance as investment adviser pursuant to an Investment
Advisory Agreement originally made on October 21, 1987 and re- executed on
November 1, 1990. Eaton Vance or its affiliates acts as investment adviser to
investment comanies and various individual and institutional clients with
combined assets under management of approximately $15 billion. Eaton Vance is a
wholly-owned subsidiary of EVC, a holding company.
Eaton Vance, its affiliates and its predecessor companies have been managing
assets of individuals and institutions since 1924 and managing investment
companies since 1931. It maintains a large staff of experienced fixed-income and
equity investment professionals to service the needs of its clients. The
fixed-income division focuses on all kinds of taxable investment- grade and
high-yield securities, tax-exempt investment-grade and high-yield securities,
and U.S. Government securities. The equity division covers stocks ranging from
blue chip to emerging growth companies.
Eaton Vance manages the investments and affairs of the Fund subject to the
supervision of the Fund's Board of Trustees. Eaton Vance furnishes to the Fund
investment advice and assistance, administrative services, office space,
equipment and clerical personnel, and investment advisory, statistical and
research facilities, and has arranged for certain members of the Eaton Vance
organization to serve without salary as officers or Trustees of the Fund. The
Fund is responsible for all expenses not expressly stated to be payable by Eaton
Vance under the Investment Advisory Agreement, including, without limitation,
the fees and expenses of its custodian and transfer agent, including those
incurred for determining the Fund's net asset value and keeping its books; the
cost of share certificates; membership dues in investment company organizations;
brokerage commissions and fees; fees and expenses of registering its shares;
expenses of reports to shareholders, proxy statements, and other expenses of
shareholders' meetings; insurance premiums; printing and mailing expenses;
interest, taxes and corporate fees; legal and accounting expenses; and
compensation and expenses of Trustees not affiliated with Eaton Vance. The Fund
will also bear expenses incurred in connection with litigation in which the Fund
is a party and the legal obligation the Fund may have to indemnify its officers
and Trustees with respect thereto.
The Fund pays Eaton Vance as compensation under the Investment Advisory
Agreement a monthly fee based on average daily net assets as follows:
<TABLE>
<CAPTION>
AVERAGE DAILY NET ANNUALIZED FEE RATE MONTHLY FEE RATE
ASSETS FOR THE MONTH (FOR EACH LEVEL) (FOR EACH LEVEL)
-------------------- ------------------- ----------------
<S> <C> <C>
Up to $500 million ............................................................ 0.7500% 1/16 of 1%
$500 million but less than $1 billion ......................................... 0.6875% 11/192 of 1%
$1 billion but less than $1.5 billion ......................................... 0.6250% 5/96 of 1%
$1.5 billion but less than $2 billion ......................................... 0.5625% 3/64 of 1%
$2 billion but less than $3 billion ........................................... 0.5000% 1/24 of 1%
$3 billion and over ........................................................... 0.4375% 7/192 of 1%
</TABLE>
As at September 30, 1994, the Fund had net assets of $13,055,315. For the
fiscal year ended September 30, 1994, the Fund paid Eaton Vance advisory fees of
$70,439 (equivalent to 0.75% of the Fund's average daily net assets for such
period). For the fiscal year ended September 30, 1993, Eaton Vance would have
earned, absent a fee reduction, advisory fees of $32,300 (equivalent to 0.75%,
of the Fund's average daily net assets for such period). To enhance the net
income of the Fund and to satisfy certain state expense limitations, Eaton Vance
reduced its fee by $32,300. For the fiscal year ended September 30, 1992, Eaton
Vance would have earned, absent a fee reduction, advisory fees of $29,517
(equivalent to 0.75% of the Fund's average daily net assets for such period. To
enhance the net income of the Fund and to satisfy certain state expense
limitations, Eaton Vance reduced its fee by $29,517 and $25,207 of additional
expenses related to the operations of the Fund were allocated to Eaton Vance.
A commitment has been made to a state securities authority that Eaton Vance
will take certain actions, if necessary, so that the Fund's expenses will not
exceed expense limitation requirements of such state. The commitment may be
amended or rescinded by Eaton Vance in response to changes in the requirements
of the state or for other reasons.
The Investment Advisory Agreement with Eaton Vance remains in effect until
February 28, 1995. It may be continued indefinitely thereafter so long as such
continuance after February 28, 1995 is approved at least annually (i) by the
vote of a majority of the Trustees who are not interested persons of the Fund or
of Eaton Vance cast in person at a meeting specifically called for the purpose
of voting on such approval and (ii) by the Board of Trustees of the Fund or by
vote of a majority of the outstanding voting securities of the Fund. The
Agreement may be terminated at any time without penalty on sixty (60) days'
written notice by the Board of Trustees of either party, or by vote of the
majority of the outstanding voting securities of the Fund, and the Agreement
will terminate automatically in the event of its assignment. The Agreement
provides that Eaton Vance may render services to others and may permit other
fund clients and other corporations and organizations to use the words "Eaton
Vance" in their names. The Agreement also provides that, in the absence of
willful misfeasance, bad faith, gross negligence or reckless disregard of
obligations or duties under the Agreement on the part of Eaton Vance, Eaton
Vance shall not be liable to the Fund or to any shareholder for any act or
omission in the course of or connected with rendering services or for any losses
sustained in the purchase, holding or sale of any security.
Eaton Vance and EV are both wholly-owned subsidiaries of EVC. BMR is a
wholly-owned subsidiary of Eaton Vance. Eaton Vance and BMR are both
Massachusetts business trusts, and EV is the trustee of Eaton Vance and BMR. The
Directors of EV are Landon T. Clay, H. Day Brigham, Jr., M. Dozier Gardner,
James B. Hawkes and Benjamin A. Rowland, Jr. The Directors of EVC consist of the
same persons and John G. L. Cabot and Ralph Z. Sorenson. Mr. Clay is chairman
and Mr. Gardner is president and chief executive officer of EVC, Eaton Vance,
BMR and EV. All of the issued and outstanding shares of Eaton Vance and EV are
owned by EVC. All of the issued and outstanding shares of BMR are owned by Eaton
Vance. All shares of the outstanding Voting Common Stock of EVC are deposited in
a Voting Trust which expires on December 31, 1996, the Voting Trustees of which
are Messrs. Clay, Brigham, Gardner, Hawkes and Rowland. The Voting Trustees have
unrestricted voting rights for the election of Directors of EVC. All of the
outstanding voting trust receipts issued under said Voting Trust are owned by
certain of the officers of Eaton Vance and BMR who are also officers and
Directors of EVC and EV. As of December 31, 1994, Messrs. Clay, Gardner and
Hawkes each owned 24% of such voting trust receipts, and Messrs. Rowland and
Brigham owned 15% and 13%, respectively, of such voting trust receipts. Messrs.
Clay, Hawkes and Otis who are officers or Trustees of the Fund are members of
the EVC, Eaton Vance, BMR and EV organizations. Messrs. Austin, Faust and
O'Connor and Ms. Sanders, are officers of the Fund, and are also members of the
Eaton Vance, BMR and EV organizations. Eaton Vance will receive the fees paid
under the Investment Advisory Agreement and its wholly-owned subsidiary, Eaton
Vance Distributors, Inc., as Principal Underwriter, will receive its portion of
the sales charge on shares of the Fund sold through Authorized Firms.
Eaton Vance owns all of the stock of Energex Corporation, which is engaged
in oil and gas operations. EVC owns all of the stock of Marblehead Energy Corp.
(which engages in oil and gas operations) and owns 77.3% of the stock of
Investors Bank & Trust Company, custodian of the Fund, which provides custodial,
trustee and other fiduciary services to investors, including individuals,
employee benefit plans, corporations, investment companies, savings banks and
other institutions. Eaton Vance owns all the stock of Northeast Properties,
Inc., which is engaged in real estate investment, consulting and management. EVC
owns all the stock of Fulcrum Management, Inc. and MinVen, Inc., which are
engaged in the development of precious metal properties. EVC, Eaton Vance, BMR
and EV may also enter into other businesses.
EVC and its affiliates and their officers and employees from time to time
have transactions with various banks, including the Fund's custodian. Investors
Bank & Trust Company. It is Eaton Vance's opinion that the terms and conditions
of such transactions were not and will not be influenced by existing or
potential custodial or other relationships between the Fund and such banks.
CUSTODIAN
Investors Bank & Trust Company ("IBT"), 24 Federal Street, Boston,
Massachusetts (a 77.3% owned subsidiary of EVC) acts as custodian for the Fund.
IBT has the custody of all cash and securities of the Fund, maintains the Fund's
general ledger and computes the daily per share net asset value. In such
capacity it attends to details in connection with the sale, exchange,
substitution, transfer or other dealings with the Fund's investments, receives
and disburses all funds and performs various other ministerial duties upon
receipt of proper instructions from the Fund. IBT charges fees which are
competitive within the industry. A portion of the fee relates to custody,
bookkeeping and valuation services and is based upon a percentage of Fund net
assets and a portion of the fee relates to activity charges, primarily the
number of portfolio transactions. These fees are then reduced by a credit for
the cash balances of the particular investment company at the custodian equal to
75% of the 91-day, U.S. Treasury Bill auction rate applied to the particular
investment company's average daily collected balances for the week. In view of
the ownership of EVC in IBT, the Fund is treated as a self- custodian pursuant
to Rule 17f-2 under the Investment Company Act of 1940, and the Fund's
investments held by IBT as custodian are thus subject to the additional
examinations by the Fund's independent certified public accountants as called
for by such Rule. For the fiscal year ended September 30, 1994, the Fund paid
Investors Bank & Trust Company $16,072 under these arrangements.
INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Deloitte & Touche LLP, 125 Summer Street, Boston, Massachusetts, are the
Fund's independent certified public accountants, providing audit services, tax
return preparation, and assistance and consultation with respect to the
preparation of filings with the Securities and Exchange Commission. A recent
Internal Revenue Service ruling requires that sales commissions paid by the Fund
pursuant to its Distribution Plan be expensed for tax purposes (rather than
charged to paid-in capital as the Fund has done in the past). The Fund changed
its tax accounting practice to conform to the ruling on November 16, 1994. The
change will have no effect on the Fund's current yield or total return.
SERVICE FOR WITHDRAWAL
By a standard agreement, the Fund's Transfer Agent will send to the
shareholder regular monthly or quarterly payments of any designated amount based
upon the value of the shares held. The checks will be drawn from share
redemptions and hence, although they are a return of principal, may give rise to
gain or loss for tax purposes. Income dividends and capital gains distributions
in connection with withdrawal accounts will be credited at net asset value as of
the record for each distribution. Continued withdrawals in excess of current
income will eventually use up principal, particularly in a period of declining
market prices.
To use this service, at least $5,000 in cash or shares at the public
offering price (i.e., net asset value) will have to be deposited with the
Transfer Agent. A shareholder may not have a withdrawal plan in effect at the
same time he has authorized Bank Draft Investing or is otherwise making regular
purchases of Fund shares. The shareholder, the Transfer Agent or the Principal
Underwriter will be able to terminate the withdrawal plan at any time without
penalty.
DETERMINATION OF NET ASSET VALUE
Shares of the Fund are offered and sold at their net asset value. For a
description of how the Fund values its shares, see "Valuing Fund Shares" in the
Fund's current prospectus. The Fund will be closed for business and will not
price its shares on the following business holidays: New Year's Day,
Washington's Birthday, Good Friday (a New York Stock Exchange holiday), Memorial
Day, Independence Day, Labor Day, Thanksgiving Day and Christmas Day.
The Trustees have established the following procedures for the valuation of
the Fund's assets. Marketable securities listed on securities exchanges or in
the NASDAQ National Market System are valued at closing sale prices or if there
were no sales at the mean between the closing bid and asked prices therefor on
such exchanges or System. Unlisted or listed securities for which closing sale
prices are not available are valued at the mean between the latest bid and asked
prices. An option contract is valued at last sale price as quoted on the
principal exchange or board of trade on which such option or contract is traded,
or in the absence of a sale, the mean between the last bid and asked price.
Futures positions on securities or currencies are generally valued at closing
settlement prices. Direct placement securities and securities of venture capital
companies, except as provided below, are taken at fair value as determined in
good faith by or pursuant to procedures established by the Trustees. Direct
placement securities and securities of former venture capital companies which
are readily marketable are considered marketable securities.
Short term debt securities are valued at amortized cost, which approximates
value. Other fixed income and debt securities, including listed securities and
securities for which price quotations are available, will normally be valued on
the basis of valuations furnished by a pricing service.
Generally, trading in the foreign securities owned by the Fund is
substantially completed each day at various times prior to the close of the New
York Stock Exchange. The values of these securities used in determining the net
asset value of the Fund's shares are computed as of such times. Occasionally,
events affecting the value of foreign securities may occur between such times
and the close of the Exchange which will not be reflected in the computation of
the Fund's net asset value (unless the Fund deems that such events would
materially affect its net asset value, in which case an adjustment would be made
and reflected in such computation). Foreign securities and currency held by the
Fund will be valued in U.S. dollars.
Physical commodities, including bullion, will generally be valued at fair
value based on prevailing market prices.
PURCHASE AND REDEMPTION OF SHARES
The Fund has authorized the Principal Underwriter to act as its agent in
repurchasing shares and paid the Principal Underwriter $262.50 for the fiscal
year ended September 30, 1994 (being $2.50 for each repurchase transaction
handled by the Principal Underwriter). The Principal Underwriter estimates that
the expenses incurred by it in acting as repurchase agent for the Fund will
exceed the amounts paid therefor by the Fund.
For information regarding the purchase of shares, see "How to Buy Fund
Shares" in the Fund's current Prospectus.
For a description of how a shareholder may have the Fund redeem his shares,
see "How to Redeem Fund Shares" in the Fund's current Prospectus.
INVESTMENT PERFORMANCE
The average annual total return is determined by multiplying a hypothetical
initial purchase order of $1,000 by the average annual compound rate of return
(including capital appreciation/depreciation, and dividends and distributions
paid and reinvested) for the stated period and annualizing the result. The
calculation assumes that all dividends and distributions are reinvested at net
asset value on the reinvestment dates during the period, and a complete
redemption of the investment and the deduction of the maximum contingent
deferred sales charge at the end of the period. The Fund's average annual total
return for the period from the start of business October 21, 1987 through fiscal
year ended September 30, 1994 was 10.48%.
The Fund's yield is computed pursuant to a standardized formula by dividing
its net investment income per share earned during a recent thirty-day period by
the maximum offering price (net asset value) per share on the last day of the
period and annualizing the resulting figure. Net investment income per share is
equal to the dividends and interest earned during the period, reduced by accrued
expenses for the period with the resulting number being divided by the average
daily number of shares outstanding and entitled to receive dividends during the
period. This yield figure does not reflect the deduction of any contingent
deferred sales charges which are imposed upon certain redemptions at the rates
set forth under "How to Redeem Fund Shares" in the Prospectus.
The table below indicates the total return (capital changes plus
reinvestment of all distributions) on a hypothetical investment of $1,000 in the
Fund covering the life of the Fund from October 21, 1987 through September 30,
1994, the five year period and for the one year period ended September 30, 1994.
<TABLE>
<CAPTION>
VALUE OF A $1,000 INVESTMENT<F3>
VALUE OF VALUE OF
INVESTMENT INVESTMENT
BEFORE AFTER
DEDUCTING DEDUCTING
THE THE TOTAL RETURN BEFORE DEDUCTING TOTAL RETURN AFTER DEDUCTING
CONTINGENT CONTINGENT THE CONTINGENT DEFERRED THE CONTINGENT DEFERRED
DEFERRED DEFERRED SALES CHARGE SALES CHARGE<F2>
INVESTMENT INVESTMENT AMOUNT OF SALES CHARGE SALES CHARGE<F2> ---------------------------- ----------------------------
PERIOD DATE INVESTMENT ON 9/30/94 ON 9/30/94 CUMULATIVE ANNUALIZED CUMULATIVE ANNUALIZED
------------ ---------- ---------- -------------- ---------------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Life of
the Fund<F1> 10/21/87 $1,000 $1,999.25 $1,999.25 99.93% 10.48% 99.93% 10.48%
5 Years
Ended
9/30/94 9/30/89 $1,000 $1,409.12 $1,389.12 40.91% 7.10% 38.91% 6.79%
1 Year
Ended
9/30/94 9/30/93 $1,000 $1,204.72 $1,154.72 20.47% 20.47% 15.47% 15.47%
PERCENTAGE CHANGES 10/21/87 -- 9/30/94<F3>
<CAPTION>
NET ASSET VALUE TO NET ASSET VALUE BEFORE NET ASSET VALUE TO NET ASSET VALUE AFTER
DEDUCTING THE CONTINGENT DEFERRED SALES CHARGE DEDUCTING THE CONTINGENT DEFERRED SALES CHARGE
FISCAL WITH ALL DISTRIBUTIONS REINVESTED WITH ALL DISTRIBUTIONS REINVESTED
YEAR ----------------------------------------------------- --------------------------------------------------
ENDED ANNUAL CUMULATIVE AVERAGE ANNUAL ANNUAL CUMULATIVE AVERAGE ANNUAL
----- ------ ---------- -------------- ------ ---------- --------------
<S> <C> <C> <C> <C> <C> <C>
9/30/88<F1> -- 15.39% -- -- 10.39% --
9/30/89 22.96% 41.88% 19.70% 17.96% 36.88% 17.51%
9/30/90 0.01% 41.90% 12.62% -4.50% 37.90% 11.53%
9/30/91 -4.36% 35.71% 8.05% -8.94% 32.71% 7.44%
9/30/92 9.44% 48.53% 8.32% 4.44% 46.53% 8.03%
9/30/93 11.73% 65.95% 8.89% 6.73% 64.95% 8.78%
9/30/94 20.47% 99.93% 10.48% 15.47% 99.93% 10.48%
Past performance is not indicative of future results. Investment return and principal value will fluctuate and shares, when
redeemed, may be worth more or less than their original cost.
---------
<FN>
<F1> Investment operations began on October 21, 1987.
<F2> No contingent deferred sales charge is imposed on shares purchased more than six years prior to the redemption, shares
acquired through the reinvestment of dividends and distributions and any appreciation in value of other shares in the account,
and no such charge is imposed on exchanges of Fund shares for shares of one or more other funds listed under "The Eaton Vance
Exchange Privilege" in the Prospectus.
<F3> Some of the expenses related to the operation of the Fund for the periods up to and including September 30, 1993, were
allocated to Eaton Vance, the adviser, which increased total return/yield.
</TABLE>
The Fund's total return may be compared to the Consumer Price Index and
various domestic securities indices. The Fund's total return and comparisons
with these indices may be used in advertisements and in information furnished to
present or prospective shareholders.
From time to time evaluations of the Fund's performance made by independent
sources may be used in advertisements and in information furnished to present or
prospective shareholders.
From time to time, information about the Fund's portfolio allocation and
holdings may be included in advertisements and other material furnished to
present and prospective shareholders.
The Fund's portfolio allocation on October 31, 1994 was:
PERCENT OF
NET ASSETS
-----------
Common stock 92.4%
Gold 25.7%
Oil & gas 17.3
Paper & Forest Products 17.0
Industrial Metals 13.0
Industrial Minerals 10.3
Iron & Steel 9.1
Preferred Stock -- Gold 3.9
Cash and Commercial Paper 3.7
Total 100.0%
The Fund's 10 largest common stock holdings on October 31, 1994 were:
PERCENT OF
COMPANY NET ASSETS
----- ----------
RTZ Corp. PLC ADR 3.7%
Placer Dome Inc. 3.2
American Barrick Resources Corp. 3.1
Anadarko Petroleum Corp. 3.0
Firstmiss Gold, Inc. 3.0
Phillips Petroleum Co. 2.9
Freeport McMoRan Copper & Gold, Inc. 2.8
Longview Fibre 2.8
Apache Corp. 2.6
Rouge Steel Company 2.6
Total 29.7%
From time to time, information, charts and illustrations relating to
inflation and the effects of inflation on the dollar may be included in
advertisements and other material furnished to present and prospective
shareholders. For example: After 10 years, the purchasing power of $25,000 would
shrink to $16,621, $14,968, $13,465 and $12,100, respectively, if the annual
rates of inflation during such period were 4%, 5%, 6% and 7%, respectively. (To
calculate the purchasing power, the value at the end of each year is reduced by
the above inflation rates for 10 consecutive years.)
Information used in advertisements and in materials furnished to present and
prospective shareholders may include statements or illustrations relating to the
appropriateness of types of securities and/or mutual funds which may be employed
to meet specific financial goals, such as (1) funding retirement, (2) paying for
children's education, and (3) financially supporting aging parents. These three
financial goals may be referred to in such advertisements or materials at the
"Triple Squeeze."
TAXES
FEDERAL INCOME TAXES
See "Distributions and Taxes" in the Fund's current Prospectus.
The Fund has elected to be treated, has qualified, and intends to continue
to qualify each year as a regulated investment company under the Internal
Revenue Code (the "Code"). Accordingly, the Fund intends to satisfy certain
requirements relating to sources of its income and diversification of its assets
and to distribute its net investment income (including tax-exempt income) and
net realized capital gains in accordance with the timing requirements imposed by
the Code, so as to avoid any Federal income or excise tax on the Fund. The Fund
so qualified for its fiscal year ended September 30, 1994 (see Note 1B to
Financial Statements).
In order to avoid Federal excise tax, the Code requires that the Fund
distribute (or be deemed to have distributed) by December 31 of each calendar
year at least 98% of its ordinary income (not including tax-exempt income) for
such year, at least 98% of the excess of its realized capital gains over its
realized capital losses, generally computed on the basis of the one-year period
ending on October 31 of such year, after reduction by any available capital loss
carryforwards, and 100% of any income from the prior year (as previously
computed) that was not paid out during such year and on which the Fund paid no
Federal income tax. Under current law, provided the Fund qualifies as a
regulated investment company for Federal income tax purposes, the Fund is not
liable for any income, corporate excise or franchise tax in the Commonwealth of
Massachusetts.
The Fund's transactions in options, futures contracts, forward contracts and
certain other transactions involving foreign exchange gain or loss will be
subject to special tax rules, the effect of which may be to accelerate income to
the Fund, defer Fund losses, cause adjustments in the holding periods of Fund
securities, convert capital gain into ordinary income and convert short-term
capital losses into long-term capital losses. For example, the tax treatment of
many types of options, futures contracts and forward contracts entered into by
the Fund will be governed by Section 1256 of the Code. Absent a tax election for
"mixed straddles" (see below), each such position held by the Fund on the last
business day of each taxable year will be marked to market (i.e., treated as if
it were closed out on such day), and any resulting gain or loss, except for
certain currency-related positions, will generally be treated as 60% long-term
and 40% short-term capital gain or loss, with subsequent adjustments made to any
gain or loss realized upon an actual disposition of such positions. When the
Fund holds an option or contract governed by Section 1256 which substantially
diminishes the Fund's risk of loss with respect to another position of the Fund
not governed by Section 1256 (as might occur in some hedging transactions), this
combination of positions could be a "mixed straddle" which is generally subject
to special tax rules requiring deferral of losses and other adjustments in
addition to being subject in part to Section 1256. The Fund may make certain tax
elections for its "mixed straddles" which could alter certain effects of these
rules. In order to qualify as a regulated investment company for Federal income
tax purposes, the Fund must derive less than 30% of its annual gross income from
the sale or other disposition of securities and certain other investments held
for less than three months and will limit its activities in options, futures
contracts and forward contracts to the extent necessary to comply with this
requirement.
The Fund may be subject to foreign withholding or other foreign taxes with
respect to income (possibly including, in some cases, capital gains) derived
from securities of foreign issuers and may be able to pass such taxes through to
shareholders along with foreign tax credits or deductions relating to these
taxes. These taxes may be reduced or eliminated under the terms of an applicable
U.S. income tax treaty. Certain foreign exchange gains and losses realized by
the Fund will be treated as ordinary income and losses. Certain uses of foreign
currency and options, futures or forward contracts thereon and investment by the
Fund in the stock of certain "passive foreign investment companies" may be
limited or a tax election may be made, if available, in order to avoid
imposition of a tax on the Fund.
The Fund's investments, if any, in securities issued with original issue
discount (possibly including certain asset-related securities) or securities
acquired at a market discount (if an election is made to include accrued market
discount in current income) will cause it to realize income prior to the receipt
of cash payments with respect to these securities. In order to distribute this
income and avoid a tax on the Fund, the Fund may be required to liquidate
portfolio securities that it might otherwise have continued to hold.
The portion of distributions made by the Fund which is attributable to
dividends received by the Fund from U.S. domestic corporations may qualify for
the dividends-received deduction for corporations. The dividends-received
deduction is reduced to the extent the shares with respect to which the
dividends are received are treated as debt-financed under the Federal income tax
law and is eliminated if the shares are deemed to have been held for less than a
minimum period, generally 46 days. Receipt of certain distributions qualifying
for the deduction may result in reduction of the tax basis of the corporate
shareholder's shares. Distributions eligible for the dividends-received
deduction may give rise to (or increase) an alternative minimum tax for
corporations depending upon the shareholder's particular tax situation.
Distributions of net investment income, the excess of net short-term capital
gain over net long-term capital loss, and certain foreign exchange gains are
taxable to shareholders as ordinary income, whether received in cash or
reinvested in additional shares. Distributions of the excess of net long-term
capital gain over net short-term capital loss (including any capital losses
carried forward from prior years) are taxable to shareholders as long-term
capital gains, whether received in cash or in additional shares and regardless
of the length of time their shares of the Fund have been held.
Any loss realized upon the redemption or exchange of shares with a tax
holding period of 6 months or less will be treated as a long-term capital loss
to the extent of any distribution of net long-term capital gains with respect to
such shares. All or a portion of a loss realized upon a redemption or other
disposition of Fund shares may be disallowed under "wash sale" rules if other
Fund shares are purchased (whether through reinvestment of dividends or
otherwise) within the period beginning 30 days before and ending 30 days after
the date of such disposition.
Amounts paid by the Fund to individuals and certain other shareholders who
have not provided the Fund with their correct taxpayer identification number and
certain required certifications, as well as shareholders with respect to whom
the Fund has received notification from the Internal Revenue Service or a
broker, may be subject to "backup" withholding of Federal income tax from the
Fund's dividends and distributions and the proceeds of redemptions (including
repurchases and exchanges), at a rate of 31%. An individual's taxpayer
identification number is generally his or her social security number.
Non-resident alien individuals and certain foreign corporations and other
foreign entities generally will be subject to a U.S. withholding tax at a rate
of 30% on the Fund's distributions from its ordinary income and the excess of
its net short-term capital gain over its net long-term capital loss, unless the
tax is reduced or eliminated by an applicable tax treaty. Distributions from the
excess of the Fund's net long-term capital gain over its net short-term capital
loss received by such shareholders and any gain from the sale or other
disposition of shares of the Fund generally will not be subject to U.S. Federal
income taxation, provided that non-resident alien status has been certified by
the shareholder. Different U.S. tax consequences may result if the shareholder
is engaged in a trade or business in the United States, is present in the United
States for a sufficient period of time during a taxable year to be treated as a
U.S. resident, or fails to provide any required certifications regarding status
as a non-resident alien investor. Foreign shareholders should consult their tax
advisers regarding the U.S. and foreign tax consequences of an investment in the
Fund.
Special tax rules apply to Individual Retirement Accounts ("IRAs") and other
retirement plans and persons investing through such plans should consult their
tax advisers for more information.
The foregoing discussion does not address the special tax rules applicable
to certain classes of investors, such as retirement plans, tax-exempt entities,
insurance companies and financial institutions. Shareholders should consult
their own tax advisers with respect to special tax rules that may apply in their
particular situations, as well as the state, local or foreign tax consequences
of investing in the Fund.
PRINCIPAL UNDERWRITER
Under the Distribution Agreement the Principal Underwriter acts as principal
in selling shares of the Fund. The expenses of printing copies of prospectuses
used to offer shares to financial service firms or investors and other selling
literature and of advertising is borne by the Principal Underwriter. The fees
and expenses of qualifying and registering and maintaining qualifications and
registrations of the Fund and its shares under Federal and state securities laws
are borne by the Fund. In addition, the Fund makes payments to the Principal
Underwriter pursuant to its Distribution Plan as described in the Fund's current
Prospectus; the provisions of the plan relating to such payments are included in
the Distribution Agreement. The Distribution Agreement is renewable annually by
the Fund's Board of Trustees (including a majority of its Trustees who are not
interested persons of the Fund and who have no direct or indirect financial
interest in the operation of the Fund's Distribution Plan or the Distribution
Agreement), may be terminated on sixty days' notice either by such Trustees or
by vote of a majority of the outstanding voting securities of the Fund or on six
months' notice by the Principal Underwriter and is automatically terminated upon
assignment. The Principal Underwriter currently distributes Fund shares on a
"best efforts" basis under which it is required to take and pay for only such
shares as may be sold.
DISTRIBUTION PLAN
The Distribution Plan (the "Plan") is described in the Prospectus and is
designed to meet the requirements of Rule 12b-1 under the 1940 Act and the sales
charge rule of the National Association of Securities Dealers, Inc. (the "NASD
Rule"). The purpose of the Plan is to compensate the Principal Underwriter for
its distribution services and facilities provided to the Fund by paying the
Principal Underwriter sales commissions and a separate distribution fee in
connection with sales of Fund shares. The following supplements the discussion
of the Plan contained in the Fund's Prospectus.
In calculating daily the amount of uncovered distribution charges,
distribution charges will include the aggregate amount of sales commissions and
distribution fees theretofore paid plus the aggregate amount of sales
commissions and distribution fees which the Principal Underwriter is entitled to
be paid under the Plan since its inception. Payments theretofore paid and
payable under the Plan by the Fund to the Principal Underwriter and contingent
deferred sales charges theretofore paid and payable to the Principal Underwriter
will be subtracted from such distribution charges; if the result of such
subtraction is positive, a distribution fee (computed at 1% over the prime rate
then reported in The Wall Street Journal) will be computed on such amount and
added thereto, with the resulting sum constituting the amount of outstanding
uncovered distribution charges with respect to such day. The amount of
outstanding uncovered distribution charges of the Principal Underwriter
calculated on any day does not constitute a liability recorded on the financial
statements of the Fund.
It is anticipated that the Eaton Vance organization will profit by reason of
the operation of the Plan through an increase in the Fund's assets (thereby
increasing the advisory fee payable to Eaton Vance) resulting from sale of Fund
shares and through amounts paid to the Principal Underwriter, including
contingent deferred sales charges pursuant to the Plan. The Eaton Vance
organization may be considered to have realized a profit under the Plan if at
any point in time the aggregate amounts theretofore received by the Principal
Underwriter pursuant to the Plan and from contingent deferred sales charges have
exceeded the total expenses theretofore incurred by such organization in
distributing shares of the Fund. Total expenses for this purpose will include an
allocable portion of the overhead costs of such organization and its branch
offices, which costs will include without limitation leasing expense,
depreciation of building and equipment, utilities, communication and postage
expense, compensation and benefits of personnel, travel and promotional expense,
stationery and supplies, literature and sales aids, interest expense, data
processing fees, consulting and temporary help costs, insurance, taxes other
than income taxes, legal and auditing expense and other miscellaneous overhead
items. Overhead is calculated and allocated for such purpose by the Eaton Vance
organization in a manner deemed equitable to the Fund.
The amount of uncovered distribution charges of the Principal Underwriter at
any particular time depends upon various changing factors, including the level
and timing of sales of Fund shares, the nature of such sales (i.e., whether they
result from exchange transactions, reinvestments or from cash sales through
Authorized Firms), the level and timing of redemptions of Fund shares upon which
a contingent deferred sales charge will be imposed, the level and timing of
redemptions of Fund shares upon which no contingent deferred sales charge will
be imposed (including redemptions involving exchanges of Fund shares for shares
of another fund in the Eaton Vance Marathon Group of Funds which result in a
reduction of uncovered distribution charges), changes in the level of the net
assets of the Fund, and changes in the interest rate used in the calculation of
the distribution fee under the Plan.
For the fiscal year ended September 30, 1994, the Fund made sales commission
payments under the Plan to the Principal Underwriter aggregating $70,406, which
amount was used by the Principal Underwriter to defray sales commissions
aggregating $206,788 paid during such period by the Principal Underwriter to
Authorized Firms on sales of Fund shares. During such period contingent deferred
sales charges aggregating approximately $35,518 were imposed on early redeeming
shareholders and paid to the Principal Underwriter to partially defray such
sales commissions. As at September 30, 1994, the outstanding uncovered
distribution charges of the Principal Underwriter calculated under the Plan
amounted to approximately $435,762 (which amount was equivalent to 3.34% of the
Fund's net assets on such day). The Plan also authorizes the Fund to make
payments of service fees. For the fiscal year ending September 30, 1994, the
Fund made service fee payments under the Plan aggregating $7,063, of which
$6,934 was paid to Authorized Firms and the balance of which was retained by the
Principal Underwriter.
The Plan and Distribution Agreement remain in effect until April 28, 1995
and may be continued as described under "Distribution Plan" in the Prospectus.
Pursuant to Rule 12b-1, the Plan has been approved by the Fund's initial sole
shareholder (Eaton Vance) and by the Board of Trustees of the Fund, as required
by Rule 12b-1. Under the Plan the President or a Vice President of the Fund
shall provide to the Trustees for their review, and the Trustees shall review at
least quarterly, a written report of the amount expended under the Plan and the
purposes for which such expenditures were made. The Plan may not be amended to
increase materially the payments described therein without approval of the
shareholders of the Fund, and all material amendments of the Plan must also be
approved by the Trustees as required by Rule 12b-1. So long as the Plan is in
effect, the selection and nomination of the Trustees who are not interested
persons of the Fund shall be committed to the discretion of the Trustees who are
not such interested persons.
The Trustees believe that the Plan has been and will be a significant factor
in the growth of the Fund's assets, resulting in increased investment
flexibility and advantages which have benefited and will continue to benefit the
Fund and its shareholders. Payments for sales commissions and distribution fees
made to the Principal Underwriter under the Plan will compensate the Principal
Underwriter for its services and expenses in distributing shares of the Fund.
Service fee payments made to the Principal Underwriter and Authorized Firms
under the Plan provide incentives to provide continuing personal services to
investors and the maintenance of shareholder accounts. By providing incentives
to the Principal Underwriter and Authorized Firms, the Plan is expected to
result in the maintenance of, and possible future growth in, the assets of the
Fund. Based on the foregoing and other relevant factors, the Trustees have
determined that in their judgment there is a reasonable likelihood that the Plan
will benefit the Fund and its shareholders.
PORTFOLIO SECURITY TRANSACTIONS
Decisions concerning the execution of Fund portfolio security transactions,
including the selection of the market and the broker-dealer firm, are made by
Eaton Vance. Eaton Vance is also responsible for the execution of transactions
for all other accounts managed by it.
Eaton Vance places the portfolio transactions of the Fund and of all other
accounts managed by it for execution with many broker-dealer firms. Eaton Vance
uses its best efforts to obtain execution of portfolio transactions at prices
which are advantageous to the Fund and (when a disclosed commission is being
charged) at reasonably competitive commission rates. In seeking such execution,
Eaton Vance will use its best judgment in evaluating the terms of a transaction,
and will give consideration to various relevant factors, including without
limitation the size and type of the transaction, the general execution and
operational capabilities of the broker-dealer, the nature and character of the
market for the security, the confidentiality, speed and certainty of effective
execution required for the transaction, the reputation, reliability, experience
and financial condition of the broker-dealer, the value and quality of the
services rendered by the broker-dealer in other transactions, and the
reasonableness of the commission or spread, if any. Transactions on United
States stock exchanges and other agency transactions involve the payment by the
Fund of negotiated brokerage commissions. Such commissions vary among different
broker-dealer firms, and a particular broker-dealer may charge different
commissions according to such factors as the difficulty and size of the
transaction and the volume of business done with such broker-dealer.
Transactions in foreign securities usually involve the payment of fixed
brokerage commissions, which are generally higher than those in the United
States. There is generally no stated commission in the case of securities traded
in the over-the-counter markets, but the price paid or received by the Fund
usually includes an undisclosed dealer markup or markdown. In an underwritten
offering, the price paid by the Fund often includes a disclosed fixed commission
or discount retained by the underwriter or dealer. Although commissions paid on
portfolio security transactions will, in the judgment of Eaton Vance, be
reasonable in relation to the value of the services provided, commissions
exceeding those which another firm might charge may be paid to broker-dealers
who were selected to execute transactions on behalf of the Fund and Eaton
Vance's other clients for providing brokerage and research services to Eaton
Vance.
As authorized in Section 28(e) of the Securities Exchange Act of 1934, a
broker or dealer who executes a portfolio transaction on behalf of the Fund may
receive a commission which is in excess of the amount of commission another
broker or dealer would have charged for effecting that transaction if Eaton
Vance determines in good faith that such compensation was reasonable in relation
to the value of the brokerage and research services provided. This determination
may be made on the basis of either that particular transaction or on the basis
of overall responsibilities which Eaton Vance and its affiliates have for
accounts over which they exercise investment discretion. In making any such
determination, Eaton Vance will not attempt to place a specific dollar value on
the brokerage and research services provided or to determine what portion of the
commission should be related to such services. Brokerage and research services
may include advice as to the value of securities, the advisability of investing
in, purchasing, or selling securities, and the availability of securities or
purchasers or sellers of securities; furnishing analyses and reports concerning
issuers, industries, securities, economic factors and trends, portfolio strategy
and the performance of accounts; effecting securities transactions and
performing functions incidental thereto (such as clearance and settlement) and
the "Research Services" referred to in the next paragraph.
It is a common practice in the investment advisory industry for the advisers
of investment companies, institutions and other investors to receive research,
statistical and quotation services, data, information and other services,
products and materials which assist such advisers in the performance of their
investment responsibilities ("Research Services") from broker-dealer firms which
execute portfolio transactions for the clients of such advisers and from third
parties with which such broker-dealers have arrangements. Consistent with this
practice, Eaton Vance receives Research Services from many broker-dealer firms
with which Eaton Vance places the Fund's portfolio transactions and from third
parties with which these broker-dealers have arrangements. These Research
Services include such matters as general economic and market reviews, industry
and company reviews, evaluations of securities and portfolio strategies and
transactions, recommendations as to the purchase and sale of securities and
other portfolio transactions, financial, industry and trade publications, news
and information services, pricing and quotation equipment and services, and
research oriented computer hardware, software, data bases and services. Any
particular Research Service obtained through a broker-dealer may be used by
Eaton Vance in connection with client accounts other than those accounts which
pay commissions to such broker-dealer. Any such Research Service may be broadly
useful and of value to Eaton Vance in rendering investment advisory services to
all or a significant portion of its clients, or may be relevant and useful for
the management of only one client's account or of a few clients' accounts, or
may be useful for the management of merely a segment of certain clients'
accounts, regardless of whether any such account or accounts paid commissions to
the broker-dealer through which such Research Service was obtained. The advisory
fee paid by the Fund is not reduced because Eaton Vance receives such Research
Services. Eaton Vance evaluates the nature and quality of the various Research
Services obtained through broker-dealer firms and attempts to allocate
sufficient commissions to such firms to ensure the continued receipt of Research
Services which Eaton Vance believes are useful or of value to it in rendering
investment advisory services to its clients.
Subject to the requirement that Eaton Vance shall use its best efforts to
seek to execute Fund portfolio security transactions at advantageous prices and
at reasonably competitive commission rates or spreads, Eaton Vance is authorized
to consider as a factor in the selection of any broker-dealer firm with whom
Fund portfolio orders may be placed the fact that such firm has sold or is
selling shares of the Fund or of other investment companies sponsored by Eaton
Vance. This policy is not inconsistent with a rule of the National Association
of Securities Dealers, Inc., which rule provides that no firm which is a member
of the Association shall favor or disfavor the distribution of shares of any
particular investment company or group of investment companies on the basis of
brokerage commissions received or expected by such firm from any source.
Securities considered as investments for the Fund may also be appropriate
for other investment accounts managed by Eaton Vance or its affiliates. Eaton
Vance will attempt to allocate equitably portfolio security transactions among
the Fund and the portfolios of its other investment accounts whenever decisions
are made to purchase or sell securities by the Fund and one or more of such
other accounts simultaneously. In making such allocations, the main factors to
be considered are the respective investment objectives of the Fund and such
other accounts, the relative size of portfolio holdings of the same or
comparable securities, the availability of cash for investment by the Fund and
such accounts, the size of investment commitments generally held by the Fund and
such accounts and the opinions of the persons responsible for recommending
investments to the Fund and such accounts. While this procedure could have a
detrimental effect on the price or amount of the securities available to the
Fund from time to time, it is the opinion of the Trustees that the benefits
available from the Eaton Vance organization outweigh any disadvantage that may
arise from exposure to simultaneous transactions.
During the fiscal year ending September 30, 1994 the Fund paid brokerage
commissions of $ $19,482, all of which was paid in respect of portfolio security
transactions aggregating approximately $6,856,282 to firms which provided some
research services to Eaton Vance (although many of such firms may have been
selected in any particular transactions primarily because of their execution
capabilities). During the fiscal years ended September 30, 1993 and 1992, the
Fund paid brokerage commissions of $15,436 and $8,355, respectively.
OTHER INFORMATION
The Fund, which is a Massachusetts business trust established in 1987, was
originally called Eaton Vance Natural Resources Trust. The Fund changed its name
to EV Marathon Gold & Natural Resources Fund on April 1, 1994.
Eaton Vance, pursuant to the Investment Advisory Agreement, controls the use
of the Fund's name and may use the words "Eaton Vance" in other connections and
for other purposes. Eaton Vance may require the Fund to cease using such words
in its name if Eaton Vance or any other subsidiary or affiliate of Eaton Vance
ceases to act as investment adviser of the Fund.
The Fund's Declaration of Trust may not be amended without the affirmative
vote of a majority of the outstanding shares of the Fund, except that the
Declaration of Trust may be amended by the Trustees to change the name of the
Fund, to make such other changes as do not have a materially adverse effect on
the rights or interests of shareholders and to conform the Declaration of Trust
to applicable federal laws or regulations. The Fund may be terminated (i) upon
the merger or consolidation with or sale of the Fund's assets to another
company, if approved by the holders of two-thirds of the outstanding shares of
the Fund, except that if the Trustees recommend such transaction, the approval
by vote of the holders of a majority of the outstanding shares will be
sufficient, or (ii) upon liquidation and distribution of the assets of the Fund,
if approved by a majority of the Trustees or by the holders of a majority of the
Fund's outstanding shares. If not so terminated, the Fund may continue
indefinitely.
The Declaration of Trust further provides that the Trustees will not be
liable for errors of judgment or mistakes of fact or law; but nothing in the
Declaration of Trust protects a Trustee against any liability to the Fund or its
shareholders to which he would otherwise be subject by reason of willful
misfeasance, bad faith, gross negligence, or reckless disregard of the duties
involved in the conduct of his office. In addition, the By-Laws of the Fund
provide that no natural person shall serve as a Trustee of the Fund after the
holders of record of not less than two-thirds of the outstanding shares have
declared that he be removed from that office either by a declaration in writing
signed by such holders and filed with the custodian of the assets of the Fund or
by votes cast in person or by proxy at a meeting called for the purpose. The
By-Laws also provide that the Trustees shall promptly call a meeting of
shareholders for the purpose of voting upon a question of removal of a Trustee
when requested so to do by the record holders of not less than 10 per centum of
the outstanding shares.
As permitted by Massachusetts law, there will normally be no meetings of
shareholders for the purpose of electing Trustees unless and until such time as
less than a majority of the Trustees of the Fund holding office have been
elected by shareholders. In such an event the Trustees then in office will call
a shareholders' meeting for the election of Trustees. Except for the foregoing
circumstances and unless removed by action of the shareholders in accordance
with the Fund's by-laws, the Trustees shall continue to hold office and may
appoint successor Trustees.
The right to redeem can be suspended and the payment of the redemption price
deferred when the New York Stock Exchange is closed (other than for customary
weekend and holiday closings), during periods when trading on the New York Stock
Exchange is restricted as determined by the Securities and Exchange Commission,
or during any emergency as determined by the Securities and Exchange Commission
which makes it impracticable for the Fund to dispose of its securities or value
its assets, or during any other period permitted by order of the Securities and
Exchange Commission for the protection of investors.
<PAGE>
APPENDIX
FIXED-INCOME SECURITY RATINGS
DESCRIPTION OF MOODY'S INVESTORS SERVICE, INC.'S CORPORATE BOND RATINGS:
Aaa: Bonds which are rated Aaa are judged to be of the best quality. They carry
the smallest degree of investment risk and are generally referred to as
"gilt-edge". Interest payments are protected by a large or by an exceptionally
stable margin and principal is secure. While the various protective elements are
likely to change, such changes as can be visualized are most unlikely to impair
the fundamentally strong position of such issues.
Aa: Bonds which are rated Aa are judged to be of high quality by all standards.
Together with the Aaa group they comprise what are generally known as high grade
bonds. They are rated lower than the best bonds because margins of protection
may not be as large as in Aaa securities or fluctuation of protective elements
may be of greater amplitude or there may be other elements present which make
the long-term risks appear somewhat larger than in Aaa securities.
A: Bonds which are rated A possess many favorable investment attributes and are
to be considered as upper medium grade obligations. Factors giving security to
principal and interest are considered adequate, but elements may be present
which suggest a susceptibility to impairment sometime in the future.
Baa: Bonds which are rated Baa are considered as medium grade obligations, i.e.,
they are neither highly protected nor poorly secured. Interest payments and
principal security appear adequate for the present, but certain protective
elements may be lacking or may be characteristically unreliable over any great
length of time. Such bonds lack outstanding investment characteristics and in
fact have speculative characteristics as well.
Ba: Bonds which are rated Ba are judged to have speculative elements; their
future cannot be considered as well assured. Often the protection of interest
and principal payments may be very moderate and thereby not well safeguarded
during both good and bad times over the future. Uncertainty of position
characterizes bonds in this class.
B: Bonds which are rated B generally lack characteristics of the desirable
investment. Assurance of interest and principal payments or of maintenance of
other terms of the contract over any long period of time may be small.
Caa: Bonds which are rated Caa are of poor standing. Such issues may be in
default or there may be present elements of danger with respect to principal
or interest.
Ca: Bonds which are rated Ca represent obligations which are speculative in a
high degree. Such issues are often in default or have other marked
shortcomings.
C: Bonds which are rated C are the lowest rated class of bonds and issues so
rated can be regarded as having extremely poor prospects of ever attaining any
real investment standing.
NOTE: Moody's applies numerical modifiers, 1, 2 and 3 in each generic rating
classification from Aa through B in its corporate bond rating system. The
modifier 1 indicates that the security ranks in the higher end of its generic
rating category; the modifier 2 indicates a mid-range ranking; and the modifier
3 indicates that the issue ranks in the lower end of its generic rating
category.
DESCRIPTION OF STANDARD & POOR'S RATINGS GROUP CORPORATE BOND RATINGS:
INVESTMENT GRADE
AAA: Bonds rated AAA have the highest rating assigned by Standard & Poor's to
a debt obligation. Capacity to pay interest and repay principal is extremely
strong.
AA: Bonds rated AA have a very strong capacity to pay interest and repay
principal and differ from the higher rated issues only in small degree.
A: Bonds rated A have a strong capacity to pay interest and repay principal
although they are somewhat more susceptible to the adverse effects of changes in
circumstances and economic conditions than bonds in higher rated categories.
BBB: Bonds rated BBB are regarded as having an adequate capacity to pay interest
and repay principal. Whereas they normally exhibit adequate protection
parameters, adverse economic conditions or changing circumstances are more
likely to lead to a weakened capacity to pay interest and repay principal for
bonds in this category than for bonds in higher rated categories.
SPECULATIVE GRADE
Debt rated BB, B, CCC, CC, and C is regarded as having predominantly speculative
characteristics with respect to capacity to pay interest and repay principal. BB
indicates the least degree of speculation and C the highest. While such debt
will likely have some quality and protective characteristics, these are
outweighed by large uncertainties or major exposures to adverse conditions.
BB: Debt rated BB has less near-term vulnerability to default than other
speculative issues. However, it faces major ongoing uncertainties or exposure to
adverse business, financial, or economic conditions which could lead to
inadequate capacity to meet timely interest and principal payments. The BB
rating category is also used for debt subordinated to senior debt that is
assigned an actual or implied BBB- rating.
B: Debt rated B has a greater vulnerability to default but currently has the
capacity to meet interest payments and principal repayments. Adverse business,
financial, or economic conditions will likely impair capacity or willingness to
pay interest and repay principal.
The B rating category is also used for debt subordinated to senior debt that is
assigned an actual or implied BB or BB- rating.
CCC: Debt rated CCC has a currently identifiable vulnerability to default, and
is dependent upon favorable business, financial, and economic conditions to meet
timely payment of interest and repayment of principal. In the event of adverse
business, financial, or economic conditions, it is not likely to have the
capacity to pay interest and repay principal.
The CCC rating category is also used for debt subordinated to senior debt that
is assigned an actual or implied B or B- rating.
CC: The rating CC is typically applied to debt subordinated to senior debt
which is assigned an actual or implied CCC debt rating.
C: The rating C is typically applied to debt subordinated to senior debt which
is assigned an actual or implied CCC- debt rating. The C rating may be used to
cover a situation where a bankruptcy petition has been filed, but debt service
payments are continued.
C1: The Rating C1 is reserved for income bonds on which no interest is being
paid.
D: Debt rated D is in payment default. The D rating category is used when
interest payments or principal payments are not made on the date due even if the
applicable grace period has not expired, unless Standard & Poor's believes that
such payments will be made during such grace period. The D rating also will be
used upon the filing of a bankruptcy petition if debt service payments are
jeopardized.
PLUS (+) OR MINUS (-): The ratings from AA to CCC may be modified by the
addition of a plus or minus sign to show relative standing within the major
rating categories.
NR: Bonds may lack a Standard & Poor's rating because no public rating has been
requested, because there is insufficient information on which to base a rating,
or because Standard & Poor's does not rate a particular type of obligation as a
matter of policy.
NOTES: Bonds which are unrated expose the investor to risks with respect to
capacity to pay interest or repay principal which are similar to the risks of
lower-rated speculative obligations. The Fund is dependent on the Investment
Adviser's judgment, analysis and experience in the evaluation of such bonds.
Investors should note that the assignment of a rating to a bond by a rating
service may not reflect the effect of recent developments on the issuer's
ability to make interest and principal payments.
<PAGE>
--------------------------------------------------------------------------
EV MARATHON GOLD & NATURAL
RESOURCES FUND
PORTFOLIO OF INVESTMENTS
MARCH 31, 1995
(UNAUDITED)
--------------------------------------------------------------------------
COMMON STOCKS - 96.1%
--------------------------------------------------------------------------
NAME OF COMPANY SHARES VALUE
--------------------------------------------------------------------------
GOLD & PRECIOUS METALS - 24.3%
Ashanti Goldfields Ltd. GDR 12,000 $ 292,500
Battle Mountain Gold Co. 24,000 288,000
Barrick Gold Corp.+ 17,000 425,000
Dayton Mining Corp.+ 55,000 160,754
Firstmiss Gold, Inc.* 40,000 400,000
Hecla Mining Co. 25,000 287,500
Newmont Mining Corp. 6,237 266,631
Placer Dome, Inc.+ 19,000 463,125
Santa Fe Pacific Gold Corp. 33,000 416,625
TVX Gold, Inc.*+ 45,000 298,125
-----------
$ 3,298,260
-----------
INDUSTRIAL METALS - 17.4%
Aluminum Co. of America 2,600 $ 107,575
ASARCO Inc. 10,000 263,750
Commonwealth Aluminum Corp. 12,000 168,000
Cyprus Amax Minerals Co. 12,500 354,688
Freeport McMoRan Copper & Gold 16,300 356,562
Inco Limited+ 5,600 156,100
Phelps Dodge Corp. 4,700 267,312
Reynolds Metals Co. 5,000 246,250
RTZ Corp. PLC ADR+ 8,424 438,048
-----------
$ 2,358,285
-----------
INDUSTRIAL MINERALS - 6.1%
Minerals Technologies, Inc. 10,500 $ 338,625
National Gypsum Co. 4,500 226,125
Potash Corp. of Saskatchewan+ 6,000 267,000
-----------
$ 831,750
-----------
IRON & STEEL - 6.9%
Geneva Steel Company Class A 15,000 $ 178,125
J & L Specialty Steel, Inc.* 16,000 318,000
Lukens Inc. 4,000 122,000
Rouge Steel Company Class A 13,000 318,500
-----------
$ 936,625
-----------
OIL & GAS - 27.4%
Amerada Hess Corp. 2,000 $ 98,750
Anadarko Petroleum Corp. 8,000 350,000
Apache Corp. 12,000 327,000
Arakis Energy Corp.*+ 35,000 251,563
Burlington Resources, Inc. 3,000 122,250
Cabot Oil & Gas Corp. 13,000 203,125
Mobil Corp. 1,500 138,937
<PAGE>
PORTFOLIO OF INVESTMENTS (Continued)
--------------------------------------------------------------------------
COMMON STOCKS (Continued)
--------------------------------------------------------------------------
NAME OF COMPANY SHARES VALUE
--------------------------------------------------------------------------
OIL & GAS (Continued)
Noble Affiliates, Inc. 15,000 $ 410,625
Phillips Petroleum Co. 10,100 369,913
Plains Resources, Inc. 17,000 131,750
Royal Dutch Petroleum PLC ADR 1,800 216,000
Triton Energy Corp. 14,000 535,500
Unocal Corp. 8,500 244,375
Western Co. of North America 15,000 315,000
-----------
$ 3,714,788
-----------
PAPER & FOREST PRODUCTS - 14.0%
International Paper Co. 1,300 $ 97,663
Jefferson Smurfit Corp. 20,000 322,500
Mead Corporation 3,300 176,963
Pacific Forest Products*+ 10,000 86,437
Rayonier Inc.* 5,000 155,625
Temple Inland Inc. 6,500 291,687
Timberwest Forest Ltd.*+ 18,000 170,022
Weyerhaeuser Co. 6,100 237,138
Willamette Inds Inc. 6,600 359,700
-----------
$ 1,897,735
-----------
TOTAL COMMON STOCKS
(Identified cost, $11,377,090) $13,037,443
--------------------------------------------------------------------------
PREFERRED STOCKS - 3.6%
--------------------------------------------------------------------------
Amax Gold, Inc., Conv. Pfd. 5,000 $ 245,000
Freeport McMoRan Copper & Gold, Inc. Var. Pfd. 7,000 241,500
-----------
TOTAL PREFERRED STOCKS
(Identified cost, $528,670) $ 486,500
-----------
TOTAL INVESTMENTS
(Identified cost, $11,905,760) $13,523,943
OTHER ASSETS, LESS LIABILITIES - 0.3% 45,625
-----------
NET ASSETS - 100% $13,569,568
===========
*Non-income producing security.
+Foreign Security.
See notes to financial statements
<PAGE>
EV MARATHON GOLD & NATURAL RESOURCES FUND
FINANCIAL STATEMENTS
STATEMENT OF ASSETS AND LIABILITIES
--------------------------------------------------------------------------------
March 31, 1995 (Unaudited)
--------------------------------------------------------------------------------
ASSETS:
Investments, at value (Note 1A) (identified cost,
$11,905,760) $13,523,943
Cash 705
Receivable for investments sold 122,276
Receivable for Trust shares sold 76,608
Dividends receivable 14,547
-----------
Total assets $13,738,079
LIABILITIES:
Due to bank $ 14,000
Payable for Trust shares redeemed 149,105
Payable to affiliates --
Custodian fee 100
Trustees' fees 45
Accrued expenses 5,261
--------
Total liabilities 168,511
-----------
NET ASSETS for 936,209 shares of beneficial interest
outstanding $13,569,568
===========
SOURCES OF NET ASSETS:
Paid-in capital $11,964,658
Accumulated net realized gain on investment
transactions 1,963
Net investment loss (15,236)
Unrealized appreciation of investments (computed on
the basis of identified cost) 1,618,183
-----------
Total $13,569,568
===========
NET ASSET VALUE, OFFERING PRICE, AND REDEMPTION PRICE (NOTE 6)
PER SHARE ($13,569,568 / 936,209 shares of beneficial interest) $14.49
======
See notes to financial statements
<PAGE>
PORTFOLIO OF INVESTMENTS (Continued)
STATEMENT OF OPERATIONS
--------------------------------------------------------------------------------
For the Six Months Ended March 31, 1995 (Unaudited)
--------------------------------------------------------------------------------
INVESTMENT INCOME:
Income --
Dividends (less withholding taxes of $2,270) $ 107,694
Interest 13,144
---------
Total income $ 120,838
Expenses --
Investment adviser fee (Note 4) $ 48,165
Compensation of Trustees not members of the
Investment Adviser's organization 81
Custodian fee (Note 4) 4,171
Distribution fees (Note 5) 54,062
Registration costs 10,643
Printing and postage 8,002
Legal and accounting services 12,505
Transfer and dividend disbursing agent fees 6,568
Miscellaneous 4,129
---------
Total expenses 148,326
---------
Net investment loss $ (27,488)
REALIZED AND UNREALIZED GAIN (LOSS) ON INVESTMENTS:
Net realized gain on investments, computed on the
basis of identified cost $ 63,188
Decrease in unrealized appreciation of investments (375,066)
---------
Net realized and unrealized loss on
investments (311,878)
---------
Net decrease in net assets from operations $(339,366)
=========
See notes to financial statements
<PAGE>
STATEMENT OF CHANGES IN NET ASSETS
--------------------------------------------------------------------------------
SIX MONTHS
ENDED YEAR ENDED
MARCH 31, 1995 SEPTEMBER 30,
(UNAUDITED) 1994
-------------- -------------
INCREASE (DECREASE) IN NET ASSETS:
From operations:
Net investment loss $ (27,488) $ (89,807)
Net realized gain (loss) on investments 63,188 (61,225)
Increase (decrease) in unrealized appreciation
of investments (375,066) 1,765,546
----------- -----------
Net increase (decrease) in net assets from
operations $ (339,366) $ 1,614,514
----------- -----------
Distributions to shareholders from (Note 2) --
In excess of net investment income $ -- $ (10,924)
In excess of net realized gain on investment
transactions -- (508,281)
----------- -----------
Total $ -- $ (519,205)
----------- -----------
Transactions in shares of beneficial interest
(exclusive of amounts allocated to
net investment income) (Note 3) --
Proceeds from sales of shares $ 2,502,217 $10,163,553
Net asset value of shares issued to
shareholder in payment of distributions
declared -- 378,380
Cost of shares redeemed (1,648,598) (4,374,063)
----------- -----------
Increase in net assets from Trust share
transactions $ 853,619 $ 6,167,870
----------- -----------
Net increase in net assets $ 514,253 $ 7,263,179
NET ASSETS:
At beginning of year 13,055,315 5,792,136
----------- -----------
At end of year $13,569,568 $13,055,315
=========== ===========
See notes to financial statements
<PAGE>
FINANCIAL STATEMENTS (Continued)
<TABLE>
FINANCIAL HIGHLIGHTS
----------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
SIX MONTHS
ENDED YEAR ENDED SEPTEMBER 30,
MARCH 31, 1995 -------------------------------------------------------------------
(UNAUDITED) 1994 1993 1992 1991 1990
----------- ------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C>
NET ASSET VALUE, beginning of year $14.890 $13.240 $11.850 $11.140 $12.140 $13.460
------- ------- ------- ------- ------- -------
INCOME FROM OPERATIONS:
Net investment income (loss) $(0.016) $(0.050) $(0.090) $(0.083) $ 0.020 $ 0.069
Net realized and unrealized gain (loss)
on investments (0.384) 2.650 1.480 1.103 (0.570) (0.009)
------- ------- ------- ------- ------- -------
Total income from investment operations $(0.400) $ 2.600 $ 1.390 $ 1.020 $(0.550) $ 0.060
------- ------- ------- ------- ------- -------
LESS DISTRIBUTIONS FROM:
Net investment income $ -- $ -- $ -- $ -- $(0.020) $(0.069)
Net realized gain on investments -- -- -- (0.060) (0.320) (1.220)
Paid-in capital -- -- -- (0.250) (0.110) (0.091)
In excess of net investment income -- (0.020) -- -- -- --
In excess of realized gain on investment -- (0.930) -- -- -- --
------- ------- ------- ------- ------- -------
Total distributions $ -- $(0.950) $ -- $(0.310) $(0.450) $(1.380)
------- ------- ------- ------- ------- -------
NET ASSET VALUE, end of year $14.490 $14.890 $13.240 $11.850 $11.140 $12.140
======= ======= ======= ======= ======= =======
TOTAL RETURN (2.69)% 20.47% 11.73% 9.44% (4.36)% 0.01%
RATIOS/SUPPLEMENTAL DATA:<F1>
Net assets, end of year (000's omitted) $13,570 $13,055 $ 5,792 $ 3,775 $ 4,042 $4,391
Ratio of net expenses to average net assets 2.31%<F2> 2.64% 3.15% 3.26% 3.29% 2.50%
Ratio of net investment income (loss) to
average net assets (0.43)%<F2> (0.96)% (0.92)% (0.67)% 0.17% 0.33%
PORTFOLIO TURNOVER 13% 17% 57% 32% 27% 35%
<FN>
<F1> For the four years ended September 30, 1993, the operating expenses of the
Trust reflect a reduction of the investment adviser fee, an allocation of
expenses to the Investment Adviser, or both. Had such actions not been
taken, net investment income per share and the ratios would have been as
follows:
NET INVESTMENT INCOME (LOSS) PER SHARE $(0.210) $(0.240) $(0.110) $(0.300)
======= ======= ======= =======
RATIOS (As a percentage of average net assets):
Expenses 3.90% 5.23% 4.42% 5.23%
Net investment income (loss) (1.67)% (2.06)% (0.96)% (2.40)%
<F2> Annualized
</FN>
</TABLE>
See notes to financial statements
<PAGE>
NOTES TO FINANCIAL STATEMENTS
(UNAUDITED)
(1) SIGNIFICANT ACCOUNTING POLICIES
The Trust is an entity of the type commonly known as a Massachusetts business
trust and is registered under the Investment Company Act of 1940, as amended, as
a non-diversified open-end management investment company. The following is a
summary of significant accounting policies consistently followed by the Trust in
the preparation of its financial statements. The policies are in conformity with
generally accepted accounting principles.
A. INVESTMENT VALUATIONS -- Investments, other than fixed income securities,
listed on securities exchanges or in the NASDAQ National Market System are
valued at closing sale prices. Unlisted securities or listed securities for
which closing sale prices are not available are valued at the mean between the
latest bid and asked prices.Options are valued at the last quoted sale price on
the exchange or board of trade on which they are primarily traded or, in the
absence of a sale, the mean between the last bid and asked price. Futures
positions on investments or currencies are generally valued at closing
settlement prices. Short-term obligations are valued at amortized cost, which
approximates value. Other fixed income and debt securities, including listed
securities and securities for which price quotations are available, will
normally be valued on the basis of valuations furnished by a pricing service.
All other securities are appraised at fair value as determined in good faith by
or pursuant to procedures established by the Trustees.
B. FEDERAL TAXES -- The Trust's policy is to comply with the provisions of the
Internal Revenue Code available to regulated investment companies and to
distribute to shareholders each year all of its taxable income, including any
net realized gain on investments. Accordingly, no provision for federal income
or excise tax is necessary. At September 30, 1994, the Trust, for federal income
tax purposes, had a capital loss carryover of $61,225 which will reduce the
Trust's taxable income arising from future net realized gain on investments, if
any, to the extent permitted by the Internal Revenue Code, and thus will reduce
the amount of the distributions to shareholders which would otherwise be
necessary to relieve the Trust of any liability for federal income or excise
tax. Such capital loss carryovers will expire on September 30, 2002.
C. DISTRIBUTION COSTS -- For book purposes, commissions paid on the sale of
Trust shares and other distribution costs are charged to operations. For tax
purposes, commissions paid were charged to paid-in capital prior to November 16,
1994 and subsequently charged to operations. The change in the tax accounting
practice was prompted by a recent Internal Revenue Service ruling and has no
effect on either the Trust's current yield or total return (Note 5).
D. OTHER -- Investment security transactions are accounted for on a trade date
basis. Dividend income, distributions to shareholders and shares issued to
shareholders electing to receive distributions in shares are recorded on the
ex-dividend date.
E. INTERIM FINANCIAL INFORMATION -- The interim financial statements relating to
March 31, 1995 and for the six-month period then ended have not been audited by
independent certified public accountants, but in the opinion of the Trust's
management, reflect all adjustments, consisting only of normal recurring
adjustments, necessary for fair presentation of the financial statements.
<PAGE>
NOTES TO FINANCIAL STATEMENTS (Continued)
--------------------------------------------------------------------------------
(2) DISTRIBUTIONS TO SHAREHOLDERS
It is the present policy of the Trust to make (A) at least one distribution
annually (normally in December) of substantially all of the investment income
earned by the Trust, less its expenses (other than sales commissions incurred in
the sale of Trust shares, which commissions are charged to the Trust's paid-in
capital for tax purposes), and (B) at least one distribution annually of
substantially all of the capital gains realized by the Trust, if any.
Distributions are paid in the form of additional shares of the Trust or, at the
election of the shareholder, in cash. The Trust distinguishes between
distributions on a tax basis and a financial reporting basis. Generally accepted
accounting principles require that only distributions in excess of tax basis
earnings and profits be reported in the financial statements as a return of
capital. Differences in the recognition or classification of income between the
financial statements and tax earnings and profits which result in
overdistributions only for financial statement purposes are classified as
distributions in excess of net investment income or accumulated net realized
gains. Permanent differences between book and tax accounting relating to
distributions are reclassified to paid in capital.
--------------------------------------------------------------------------------
(3) SHARES OF BENEFICIAL INTEREST
The Declaration of Trust permits the Trustees to issue an unlimited number of
full and fractional shares of beneficial interest (without par value).
Transactions in Trust shares were as follows:
SIX MONTHS
ENDED YEAR ENDED
MARCH 31, 1995 SEPTEMBER 30,
(UNAUDITED) 1994
-------------- -------------
Sales 181,002 731,556
Issued to shareholders electing to receive
payment of distribution in Trust shares -- 28,365
Redemptions (121,675) (320,555)
-------- --------
Net increase 59,327 439,366
======== ========
--------------------------------------------------------------------------------
(4) INVESTMENT ADVISER FEE AND OTHER TRANSACTIONS WITH AFFILIATES
The investment adviser fee was paid to Eaton Vance Management (EVM) as
compensation for management and investment advisory services rendered to the
Trust. The fee is computed at the monthly rate of 0.0625% (0.75% per annum) of
the Trust's average daily net assets up to $500 million and at reduced rates as
daily net assets exceed that level. For the six months ended March 31, 1995, the
effective annual rate, based on average daily net assets, was 0.75%.
Except as to Trustees of the Trust who are not members of EVM's organization,
officers and Trustees receive remuneration for their services to the Trust out
of such investment adviser fee. Investors Bank & Trust Company (IBT), an
affiliate of EVM, serves as custodian of the Trust. Pursuant to the custodian
agreement, IBT receives a fee reduced by credits which are determined based on
the average daily cash balances the Trust maintains with IBT. Certain of the
officers and Trustees of the Trust are officers and directors/trustees of the
above organizations (See Note 5).
Trustees of the Portfolio that are not affiliated with the Investment Advisor
may elect to defer receipt of all or a percentage of their annual fees in
accordance with the terms of the Trustees Deferred Compensation Plan. For the
six months ended March 31, 1995, no significant amounts have been deferred.
<PAGE>
--------------------------------------------------------------------------------
(5) DISTRIBUTION PLAN
The Trust has adopted a distribution plan pursuant to Rule 12b-1 under the
Investment Company Act of 1940. The Plan requires the Trust to pay the Principal
Underwriter, Eaton Vance Distributors, Inc. (EVD) amounts equal to 1/365 of
0.75% of the Trust's daily net assets, for providing ongoing distribution
services and facilities to the Trust. The Trust will automatically discontinue
payments to EVD during any period in which there are no outstanding Uncovered
Distribution Charges, which are equivalent to the sum of (i) 5% of the aggregate
amount received by the Trust for shares sold plus (ii) distribution fees
calculated by applying the rate of 1% over the prevailing prime rate to the
outstanding balance of Uncovered Distribution Charges of EVD, reduced by the
aggregate amount of contingent deferred sales charges (see Note 6) and daily
amounts theretofore paid to EVD. The amount payable to EVD with respect to each
day is accrued on such day as a liability of the Trust and, accordingly, reduces
the Trust's net assets. The Trust accrued $48,056 as payable to EVD for the year
ended March 31, 1995, representing 0.75% (annualized) of daily average net
assets. At March 31, 1995, the amount of Uncovered Distribution Charges of EVD
calculated under the Plan was approximately $457,581.
In addition, the Plan authorizes the Trust to make payments of service fees to
the Principal Underwriter, Authorized Firms and other persons in amounts not
exceeding 0.25% of the Trust's average daily net assets for each fiscal year.
The Trustees have initially implemented the Plan by authorizing the Trust to
make quarterly payments of service fees to the Principal Underwriter and
Authorized Firms in amounts not expected to exceed 0.25% per annum of the
Trust's average daily net assets based on the value of Trust shares sold by such
persons and remaining outstanding for at least one year. Service fee payments
will be made for personal services and/or the maintenance of shareholder
accounts. Service fees are separate and distinct from the sales commissions and
distribution fees payable by the Trust to EVD, and, as such, are not subject to
automatic discontinuance where there are no outstanding Uncovered Distribution
Charges of EVD. Provision for service fees payments amounted to $6,006 for the
year ended March 31, 1995.
Certain officers and Trustees of the Trust are officers or directors of EVD.
--------------------------------------------------------------------------------
(6) CONTINGENT DEFERRED SALES CHARGE
A contingent deferred sales charge (CDSC) is imposed on any redemption of Trust
shares made within six years of purchase. Generally, the CDSC is based upon the
lower of net asset value at date of redemption or date of purchase. No charge is
levied on shares acquired by reinvesetment of dividends or capital gain
distributions. The CDSC is imposed at declining rates that begin at 5% in the
case of redemptions in the first and second year after purchase (6% and 5%,
respectively for shares acquired prior to August 1, 1994), declining one
percentage point each year. No CDSC is levied on shares which have been sold to
EVM or its affiliates or to their respective employees or clients. CDSC charges
are paid to EVD to reduce the amount of Uncovered Distribution Charges
calculated under the Trust's Distribution Plan. If no Uncovered Distribution
Charges exist, the CDSC will be credited to operations. EVD received
approximately $24,176 of CDSC paid by shareholders for the six months ended
March 31, 1995.
<PAGE>
NOTES TO FINANCIAL STATEMENTS (Continued)
--------------------------------------------------------------------------------
(7) LINE OF CREDIT
The Trust participates with other funds managed by EVM in a $120 million
unsecured line of credit aggrement with a bank. The line of credit consists of a
$20 million committed facility and a $100 million discretionary facility.
Borrowings will be made by the Trust solely to facilitate the handling of
unusual and/or unanticipated short-term cash requirements. Interest is charged
to each fund based on its borrowings at an amount above either the bank's
adjusted certificate of deposit rate, a variable adjusted certificate of deposit
rate, or a federal funds effective rate. In addition, a fee computed at an
annual rate of 1/4 of 1% on the $20 million committed facility and on the daily
unused portion of the $100 million discretionary facility is allocated among the
participating funds at the end of each quarter. The Trust did not have any
significant borrowings or allocated fees during the period.
--------------------------------------------------------------------------------
(8) PURCHASES AND SALES OF INVESTMENTS
Purchases and sales of investments, other than short-term obligations,
aggregated $3,009,253 and $1,571,699, respectively.
--------------------------------------------------------------------------------
(9) FEDERAL INCOME TAX BASIS OF INVESTMENTS
The cost and unrealized appreciation/depreciation in value of the investment
securities owned at March 31, 1995, as computed on a federal income tax basis,
are as follows:
Aggregate cost $11,905,760
===========
Gross unrealized appreciation $ 2,063,458
Gross unrealized depreciation 445,275
-----------
Net unrealized appreciation $ 1,618,183
===========
<PAGE>
EV MARATHON GOLD & NATURAL RESOURCES FUND
PORTFOLIO OF INVESTMENTS
SEPTEMBER 30, 1994
<TABLE>
<CAPTION>
SHARES VALUE
<S> <C> <C>
COMMON STOCKS -- 90.8%
GOLD & PRECIOUS METALS -- 24.6%
American Barrick Resources Corp. 17,000 $ 452,625
Ashanti Goldfields Ltd. GDR 12,000 232,500
Battle Mountain Gold Co. 24,000 306,000
Cambior Inc. 17,000 269,875
Dayton Mining Corp.*# 55,000 192,715
Firstmiss Gold, Inc.* 40,000 325,000
Hecla Mining Co.* 25,000 331,250
Newmont Mining Corp. 6,237 280,665
Placer Dome, Inc. 19,000 477,375
TVX Gold, Inc.* 45,000 348,750
$ 3,216,755
INDUSTRIAL METALS -- 16.3%
Aluminum Co. of America 1,300 $ 110,175
Cyprus Amax Minerals Co. 12,500 390,625
Freeport McMoRan Copper & Gold 16,300 407,500
Inco Limited 5,600 168,700
Phelps Dodge Corp. 4,700 291,988
Reynolds Metals Co. 5,000 283,125
RTZ Corp. PLC ADR 8,424 481,221
$ 2,133,334
INDUSTRIAL MINERALS -- 8.4%
Minerals Technologies, Inc. 10,500 $ 311,062
National Gypsum Co. 8,500 323,000
Potash Corp. of Saskatchewan 6,000 245,250
Vulcan Materials, Inc. 4,000 215,500
$ 1,094,812
IRON & STEEL -- 7.0%
J & L Specialty Steel, Inc. 16,000 $ 304,000
Lukens Inc. 4,000 140,000
Rouge Steel Company Class A 9,000 264,375
WHX Corp. 12,000 205,500
$ 913,875
OIL & GAS -- 16.1%
Amerada Hess Corp. 2,000 $ 93,000
Amoco Corp. 2,000 118,500
Anadarko Petroleum Corp. 8,000 358,000
Apache Corp. 12,000 303,000
Arakis Energy Corp.* 35,000 214,375
Burlington Resources, Inc. 3,000 112,500
Mobil Corp. 1,500 118,687
Phillips Petroleum Co. 10,100 345,925
Royal Dutch Petroleum PLC ADR 1,800 193,275
Unocal Corp. 8,500 240,125
$ 2,097,387
PAPER & FOREST PRODUCTS -- 18.4%
International Paper Co. 1,300 $ 102,050
Longview Fibre Co. 22,000 401,500
Mead Corporation 3,300 171,600
Pacific Forest Products*# 10,000 93,190
Rayonier Inc. 10,000 322,500
Scott Paper Co. 3,000 183,375
Temple Inland Inc. 6,500 359,125
Timberwest Forest Ltd.*# 18,000 157,676
Weyerhaeuser Co. 6,100 272,213
Willamette Industries, Inc. 6,600 338,250
$ 2,401,479
TOTAL COMMON STOCKS
(identified cost, $9,876,348) $11,857,642
PREFERRED STOCKS -- 4.1%
Amax Gold Inc., Conv. Pfd. 5,000 $ 278,125
Freeport McMoRan Copper & Gold, Inc. Var.
Pfd. 7,000 262,500
TOTAL PREFERRED STOCKS
(identified cost, $528,670) $ 540,625
SHORT-TERM OBLIGATIONS -- 8.4%
PRINCIPAL
AMOUNT
(000 OMITTED)
CXC Inc., 5.05s, 10/3/94 $500 $ 499,860
Heller Financial, Inc. 4.9s, 10/5/94 600 599,673
TOTAL SHORT-TERM OBLIGATIONS,
AT AMORTIZED COST $ 1,099,533
TOTAL INVESTMENTS
(identified cost, $11,504,551) $13,497,800
OTHER ASSETS, LESS LIABILITIES -- (3.3%) (442,485)
NET ASSETS -- 100.0% $13,055,315
<FN>
* Non-income producing security.
# Foreign Security
</TABLE>
See notes to financial statements
FINANCIAL STATEMENTS
STATEMENT OF ASSETS AND LIABILITIES
September 30, 1994
<TABLE>
<S> <C> <C>
ASSETS:
Investments, at value (Note 1A) (identified cost,
$11,504,551) $13,497,800
Cash 157,725
Receivable for investments sold 162,505
Receivable for Trust shares sold 196,731
Dividends receivable 10,166
Total assets $14,024,927
LIABILITIES:
Payable for investment purchased $938,832
Payable for Trust shares redeemed 26,229
Payable to affiliates --
Custodian fee 645
Trustees' fees 45
Accrued expenses 3,861
Total liabilities 969,612
NET ASSETS for 876,882 shares of beneficial interest
outstanding $13,055,315
SOURCES OF NET ASSETS:
Paid-in capital $11,123,291
Accumulated net realized loss on investment trans-
actions (computed on the basis of identified
cost) (61,225)
Unrealized appreciation of investments (computed
on the basis of identified cost) 1,993,249
Total $13,055,315
NET ASSET VALUE, OFFERING PRICE, AND REDEMPTION
PRICE (NOTE 6) PER SHARE ($13,055,315 / 876,882
shares of beneficial interest) $14.89
</TABLE>
See notes to financial statements
STATEMENT OF OPERATIONS
For the Year Ended September 30, 1994
<TABLE>
<S> <C> <C>
INVESTMENT INCOME:
Income --
Dividends $ 146,257
Interest 10,761
Total income $ 157,018
Expenses --
Investment adviser fee (Note 4) $ 70,439
Compensation of Trustees not members of the In-
vestment Adviser's organization 744
Custodian fee (Note 4) 16,072
Distribution fees (Note 5) 78,196
Registration costs 25,344
Printing and postage 21,288
Legal and accounting services 16,628
Transfer and dividend disbursing agent fees 11,564
Miscellaneous 6,550
Total expenses 246,825
Net investment loss $ (89,807)
REALIZED AND UNREALIZED GAIN (LOSS) ON INVESTMENTS:
Net realized loss on investments, computed on the
basis of identified cost $ (61,225)
Increase in unrealized appreciation of investments 1,765,546
Net realized and unrealized gain on
investments 1,704,321
Net increase in net assets from
operations $1,614,514
</TABLE>
See notes to financial statements
STATEMENTS OF CHANGES IN NET ASSETS
<TABLE>
<CAPTION>
YEAR ENDED SEPTEMBER 30,
1994 1993
<S> <C> <C>
INCREASE (DECREASE) IN NET ASSETS:
From operations --
Net investment loss $ (89,807) $ (39,887)
Net realized gain (loss) on investments (61,225) 501,513
Increase (decrease) in unrealized appreciation
of investments 1,765,546 (78,433)
Net increase in net assets from operations $ 1,614,514 $ 383,193
Distributions to shareholders from (Note 2) --
In excess of net investment income $ (10,924) $ --
In excess of net realized gain on investment
transactions (508,281) --
Total $ (519,205) $ --
Transactions in shares of beneficial interest (ex-
clusive of amounts allocated to net investment
income) (Note 3) --
Proceeds from sales of shares $10,163,553 $ 3,275,450
Net asset value of shares issued to shareholder
in payment of distributions
declared 378,380 --
Cost of shares redeemed (4,374,063) (1,641,795)
Increase in net assets from Trust share trans-
actions $ 6,167,870 $ 1,633,655
Net increase in net assets $ 7,263,179 $ 2,016,848
NET ASSETS:
At beginning of year 5,792,136 3,775,288
At end of year (including accumulated net invest-
ment loss of $82,877 and $52,552, respectively) $13,055,315 $ 5,792,136
</TABLE>
See notes to financial statements
FINANCIAL HIGHLIGHTS
<TABLE>
<CAPTION>
YEAR ENDED SEPTEMBER 30,
1994 1993 1992 1991 1990
<S> <C> <C> <C> <C> <C>
NET ASSET VALUE, beginning of year $ 13.240 $11.850 $11.140 $12.140 $13.460
INCOME FROM OPERATIONS:
Net investment income (loss) $ (0.050) $(0.090) $(0.083) $ 0.020 $ 0.069
Net realized and unrealized gain (loss)
on investments 2.650 1.480 1.103 (0.570) (0.009)
Total income from investment opera-
tions $ 2.600 $ 1.390 $ 1.020 $(0.550) $ 0.060
LESS DISTRIBUTIONS FROM:
Net investment income $ -- $ -- -- $(0.020) $(0.069)
Net realized gain on investments -- -- (0.060) (0.320) (1.220)
Paid-in capital -- -- (0.250) (0.110) (0.091)
In excess of net investment income (0.020) -- -- -- --
In excess of realized gain on investment (0.930) -- -- -- --
Total distributions $ (0.950) $ -- $(0.310) $(0.450) $(1.380)
NET ASSET VALUE, end of year $ 14.890 $13.240 $11.850 $11.140 $12.140
TOTAL RETURN 20.47% 11.73% 9.44% (4.36)% 0.01%
RATIOS/SUPPLEMENTAL DATA*:
Net assets, end of year (000 omitted) $13,055 $5,792 $3,775 $4,042 $4,391
Ratio of net expenses to average net as-
sets 2.64% 3.15% 3.26% 3.29% 2.50%
Ratio of net investment income (loss) to
average net assets (0.96)% (0.92)% (0.67)% 0.17% 0.33%
PORTFOLIO TURNOVER 17% 57% 32% 27% 35%
* For the four years ended September 30, 1993, the operating expenses of the
Trust reflect a reduction of the investment adviser fee, an allocation of ex-
penses to the Investment Adviser, or both. Had such actions not been taken,
net investment income per share and the ratios would have been as follows:
NET INVESTMENT INCOME (LOSS) PER SHARE $(0.210) $(0.240) $(0.110) $(0.300)
RATIOS (As a percentage of average net as-
sets):
Expenses 3.90% 4.65% 4.42% 5.23%
Net investment income (loss) (1.67)% (2.06)% (0.96)% (2.40)%
</TABLE>
See notes to financial statements
NOTES TO FINANCIAL STATEMENTS
(1) SIGNIFICANT ACCOUNTING POLICIES
The Trust is an entity of the type commonly known as a Massachusetts busi-
ness trust and is registered under the Investment Company Act of 1940, as
amended, as a non-diversified open-end management investment company. The
following is a summary of significant accounting policies consistently
followed by the Trust in the preparation of its financial statements. The
policies are in conformity with generally accepted accounting principles.
A. INVESTMENT VALUATIONS -- Investments, other than fixed income securi-
ties, listed on securities exchanges or in the NASDAQ National Market Sys-
tem are valued at closing sale prices. Unlisted securities or listed secu-
rities for which closing sale prices are not available are valued at the
mean between the latest bid and asked prices. Options are valued at the
last quoted sale price on the exchange or board of trade on which they are
primarily traded or, in the absence of a sale, the mean between the last
bid and asked price. Futures positions on investments or currencies are
generally valued at closing settlement prices. Short-term obligations are
valued at amortized cost, which approximates value. Other fixed income and
debt securities, including listed securities and securities for which
price quotations are available, will normally be valued on the basis of
valuations furnished by a pricing service. All other securities are
appraised at fair value as determined in good faith by or pursuant to pro-
cedures established by the Trustees.
B. FEDERAL TAXES -- The Trust's policy is to comply with the provisions of
the Internal Revenue Code available to regulated investment companies and
to distribute to shareholders each year all of its taxable income, includ-
ing any net realized gain on investments. Accordingly, no provision for
federal income or excise tax is necessary. At September 30, 1994, the
Trust, for federal income tax purposes, had a capital loss carryover of
$61,225 which will reduce the Trust's taxable income arising from future
net realized gain on investments, if any, to the extent permitted by the
Internal Revenue Code, and thus will reduce the amount of the distribu-
tions to shareholders which would otherwise be necessary to relieve the
Trust of any liability for federal income or excise tax. Such capital loss
carryovers will expire on September 30, 2002.
C. DISTRIBUTION COSTS -- For book purposes, commissions paid on the sale
of Trust shares and other distribution costs are charged to operations.
For tax purposes, commissions paid are charged to paid-in capital (See
Note 5).
D. EQUALIZATION -- Prior to October 1, 1993, the Trust followed the ac-
counting practice known as equalization by which a portion of the proceeds
from the sales and costs of redemptions of Trust shares was allocated to
undistributed net investment income. As of October 1, 1993, the Trust dis-
continued the use of equalization. This change had no effect on the
Trust's net asset, net asset value per share, or its net increase or (de-
crease) in net assets from operations. Discontinuing the use of equaliza-
tion will result in a simpler and more meaningful financial statement pre-
sentation.
E. OTHER -- Investment security transactions are accounted for on a trade
date basis. Dividend income, distributions to shareholders and shares is-
sued to shareholders electing to receive distributions in shares are re-
corded on the ex-dividend date.
(2) DISTRIBUTIONS TO SHAREHOLDERS
It is the present policy of the Trust to make (A) at least one distribu-
tion annually (normally in December) of substantially all of the invest-
ment income earned by the Trust, less its expenses (other than sales com-
missions incurred in the sale of Trust shares, which commissions are
charged to the Trust's paid-in capital for tax purposes), and (B) at least
one distribution annually of substantially all of the capital gains real-
ized by the Trust, if any. Distributions are paid in the form of addi-
tional shares of the Trust or, at the election of the shareholder, in
cash. The Trust distinguishes between distributions on a tax basis and a
financial reporting basis. Generally accepted accounting principles re-
quire that only distributions in excess of tax basis earnings and profits
be reported in the financial statements as a return of capital. Differ-
ences in the recognition or classification of income between the financial
statements and tax earnings and profits which result in overdistributions
only for financial statement purposes are classified as distributions in
excess of net investment income or accumulated net realized gains. Perma-
nent differences between book and tax accounting relating to distributions
are reclassified to paid in capital. During the year ended September 30,
1994, $70,406 was reclassified from accumulated loss to paid in capital
due to the fact such losses would never be utilized for tax purposes. In
addition, $82,877 was reclassified from accumulated investment loss and
$52,635 from realized loss to paid in capital for the same reason.
(3) SHARES OF BENEFICIAL INTEREST
The Declaration of Trust permits the Trustees to issue an unlimited number
of full and fractional shares of beneficial interest (without par value).
Transactions in Trust shares were as follows:
<TABLE>
<CAPTION>
YEAR ENDED SEPTEMBER 30,
1994 1993
<S> <C> <C>
Sales 731,556 250,369
Issued to shareholders electing to receive pay-
ment of
distributions in Trust shares 28,365 --
Redemptions (320,555) (131,463)
Net increase 439,366 118,906
</TABLE>
(4) INVESTMENT ADVISER FEE AND OTHER TRANSACTIONS WITH AFFILIATES
The investment adviser fee was paid to Eaton Vance Management (EVM) as
compensation for management and investment advisory services rendered to
the Trust. The fee is computed at the monthly rate of 0.0625% (0.75% per
annum) of the Trust's average daily net assets up to $500 million and at
reduced rates as daily net assets exceed that level. For the year ended
September 30, 1994, the effective annual rate, based on average daily net
assets, was 0.75%.
Except as to Trustees of the Trust who are not members of EVM's organiza-
tion, officers and Trustees receive remuneration for their services to the
Trust out of such investment adviser fee. Investors Bank & Trust Company
(IBT), an affiliate of EVM, serves as custodian of the Trust. Pursuant to
the custodian agreement, IBT receives a fee reduced by credits which are
determined based on the average daily cash balances the Trust maintains
with IBT. Certain of the officers and Trustees of the Trust are officers
and directors/trustees of the above organizations (See Note 5).
(5) DISTRIBUTION PLAN
The Trust has adopted a distribution plan (the "Plan") pursuant to Rule
12b-1 under the Investment Company Act of 1940. The Plan requires the
Trust to pay the Principal Underwriter, Eaton Vance Distributors, Inc.
(EVD) amounts equal to 1/365 of 0.75% of the Trust's daily net assets, for
providing ongoing distribution services and facilities to the Trust. The
Trust will automatically discontinue payments to EVD during any period in
which there are no outstanding Uncovered Distribution Charges, which are
equivalent to the sum of (i) 5% of the aggregate amount received by the
Trust for shares sold plus (ii) distribution fees calculated by applying
the rate of 1% over the prevailing prime rate to the outstanding balance
of Uncovered Distribution Charges of EVD, reduced by the aggregate amount
of contingent deferred sales charges (see Note 6) and daily amounts there-
tofore paid to EVD. The amount payable to EVD with respect to each day is
accrued on such day as a liability of the Trust and, accordingly, reduces
the Trust's net assets. The Trust accrued $70,406 as payable to EVD for
the year ended September 30, 1994, representing 0.75% (annualized) of
daily average net assets. At September 30, 1994, the amount of Uncovered
Distribution Charges of EVD calculated under the Plan was approximately
$435,762.
In addition, the Plan authorizes the Trust to make payments of service
fees to the Principal Underwriter, Authorized Firms and other persons in
amounts not exceeding 0.25% of the Trust's average daily net assets for
each fiscal year. The Trustees have initially implemented the Plan by au-
thorizing the Trust to make quarterly payments of service fees to the
Principal Underwriter and Authorized Firms in amounts not expected to
exceed 0.25% per annum of the Trust's average daily net assets based on
the value of Trust shares sold by such persons and remaining outstanding
for at least one year. Service fee payments will be made for personal ser-
vices and/or the maintenance of shareholder accounts. Service fees are
separate and distinct from the sales commissions and distribution fees
payable by the Trust to EVD, and, as such, are not subject to automatic
discontinuance where there are no outstanding Uncovered Distribution
Charges of EVD. Provision for service fees payments amounted to $7,790 for
the year ended September 30, 1994.
Certain officers and Trustees of the Trust are officers or directors of
EVD.
(6) CONTINGENT DEFERRED SALES CHARGE
A contingent deferred sales charge (CDSC) is imposed on any redemption of
Trust shares made within six years of purchase. Generally, the CDSC is
based upon the lower of net asset value at date of redemption or date of
purchase. No charge is levied on shares acquired by reinvestment of divi-
dends or capital gain distributions. The CDSC is imposed at declining
rates that begin at 5% in the case of redemptions in the first and second
year after purchase (6% and 5%, respectively for shares acquired prior to
August 1, 1994), declining one percentage point each year. No CDSC is lev-
ied on shares which have been sold to EVM or its affiliates or to their
respective employees or clients. CDSC charges are paid to EVD to reduce
the amount of Uncovered Distribution Charges calculated under the Trust's
Distribution Plan. If no Uncovered Distribution Charges exist, the CDSC
will be credited to operations. EVD received approximately $35,518 of CDSC
paid by shareholders for the year ended September 30, 1994.
(7) LINE OF CREDIT
The Trust participates with other funds managed by EVM in a $120 million
unsecured line of credit agreement with a bank. The line of credit con-
sists of a $20 million committed facility and a $100 million discretionary
facility. Borrowings will be made by the Trust solely to facilitate the
handling of unusual and/or unanticipated short-term cash requirements. In-
terest is charged to each fund based on its borrowings at an amount above
either the bank's adjusted certificate of deposit rate, a variable ad-
justed certificate of deposit rate, or a federal funds effective rate. In
addition, a fee computed at an annual rate of 1/4 of 1% on the $20 million
committed facility and on the daily unused portion of the $100 million
discretionary facility is allocated among the participating funds at the
end of each quarter. The Trust did not have any significant borrowings or
allocated fees during the period.
(8) PURCHASES AND SALES OF INVESTMENTS
Purchases and sales of investments, other than short- term obligations,
aggregated $6,829,517 and $1,505,768, respectively.
(9) FEDERAL INCOME TAX BASIS OF INVESTMENTS
The cost and unrealized appreciation/depreciation in value of the invest-
ment securities owned at September 31, 1994, as computed on a federal in-
come tax basis, are as follows:
<TABLE>
<S> <C>
Aggregate cost $11,504,551
Gross unrealized appreciation $ 2,114,469
Gross unrealized depreciation 121,220
Net unrealized appreciation $ 1,993,249
</TABLE>
INDEPENDENT AUDITORS' REPORT
To the Trustees and Shareholders of
EV Marathon Gold and Natural Resources Fund:
We have audited the accompanying statement of assets and liabilities, in-
cluding the portfolio of investments, of EV Marathon Gold and Natural Re-
sources Fund (formerly Eaton Vance Natural Resources Trust) as of Septem-
ber 30, 1994, the related statement of operations for the year then ended,
the statement of changes in net assets for the years ended September 30,
1994 and 1993, and the financial highlights for each of the years in the
five- year period ended September 30, 1994. These financial statements and
financial highlights are the responsibility of the Trust's management. Our
responsibility is to express an opinion on these financial statements and
financial highlights based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements and fi-
nancial highlights are free of material misstatement. An audit includes
examining, on a test basis, evidence supporting the amounts and disclo-
sures in the financial statements. Our procedures included confirmation of
securities owned at September 30, 1994, by correspondence with the custo-
dian and brokers; where replies were not received from brokers, we per-
formed other auditing procedures. An audit also includes assessing the ac-
counting principles used and significant estimates made by management, as
well as evaluating the overall financial statement presentation. We be-
lieve that our audits provide a reasonable basis for our opinion.
In our opinion, such financial statements and financial highlights present
fairly, in all material respects, the financial position of EV Marathon
Gold and Natural Resources Fund at September 30, 1994, the results of its
operations, the changes in its net assets, and its financial highlights
for the respective stated periods in conformity with generally accepted
accounting principles.
DELOITTE & TOUCHE LLP
Boston, Massachusetts
November 2, 1994
<PAGE>
INVESTMENT ADVISER
Eaton Vance Management
24 Federal Street
Boston, MA 02110
PRINCIPAL UNDERWRITER
Eaton Vance Distributors, Inc.
24 Federal Street
Boston, MA 02110
(800) 225-6265
CUSTODIAN
Investors Bank & Trust Company
24 Federal Street
Boston, MA 02110
TRANSFER AGENT
The Shareholder Services Group, Inc.
BOS725
P.O. Box 1559
Boston, MA 02104
(800) 262-1122
AUDITORS
Deloitte & Touche LLP
125 Summer Street
Boston, MA 02110
EV MARATHON GOLD &
NATURAL RESOURCES FUND
24 FEDERAL STREET
BOSTON, MA 02110
[LOGO]
EV MARATHON GOLD &
NATURAL RESOURCES
FUND
STATEMENT OF
ADDITIONAL
INFORMATION
FEBRUARY 1, 1995
NRSAI
<PAGE>
OTHER INFORMATION
ITEM 24: FINANCIAL STATEMENTS AND EXHIBITS
(A) FINANCIAL STATEMENTS
INCLUDED IN PART A:
For EV Marathon Gold & Natural Resources Fund:
Financial Highlights for the six months ended March 31, 1995
(Unaudited) and for the five years ended September 30, 1994
INCLUDED IN PART B:
FOR EV MARATHON GOLD & NATURAL RESOURCES FUND:
Financial Statements for EV Marathon Gold & Natural Resources Fund:
Portfolio of Investments as of March 31, 1995 (Unaudited)
Statement of Assets and Liabilities as of March 31, 1995 (Unaudited)
Statement of Operations for the six months ended March 31, 1995
(Unaudited)
Statement of Changes in Net Assets for the six months ended March
31, 1995 (Unaudited)
Financial Highlights for the six months ended March 31, 1995
(Unaudited) and for the five years ended September 30, 1994
Notes to Financial Statements (Unaudited)
Portfolio of Investments as of September 30, 1994
Statement of Assets and Liabilities as of September 30, 1994
Statement of Operations for the year ended, September 30, 1994
Statements of Changes in Net Assets for the year ended, September
30, 1994, and for the year ended September 30, 1993
Financial Highlights for the five years ended September 30, 1994
Notes to Financial Statements
Independent Auditors' Report
(B) EXHIBITS:
<TABLE>
<C> <C> <C>
(1)(a) Declaration of Trust dated May 25, 1989. Filed herewith.
(b) Amendment to the Declaration of Trust Filed herewith.
dated August 18, 1992.
(c) Amendment and Restatement of Filed herewith.
Establishment and Designation of Series
of Shares dated June 19, 1995.
(d) Form of Amendment and Restatement of Filed as Exhibit (1)(h) to Post-Effective
Establishment and Designation of Series Amendment No. 57 and incorporated herein by
of Shares. reference.
(2)(a) By-Laws Filed herewith.
(b) Amendment to By-Laws dated December 13, Filed herewith.
1993.
(3) Not applicable
(4) Not applicable
(5)(a) Investment Advisory Agreement with Eaton Filed herewith.
Vance Management for EV Marathon Gold &
Natural Resources Fund dated August 15,
1995.
(b) Management Contract with Eaton Vance Filed herewith.
Management for Eaton Vance Greater China
Growth Fund.
(c) Management Contract with Eaton Vance Filed herewith.
Management for EV Marathon Greater China
Growth Fund dated June 7, 1993.
(d) Management Contract with Eaton Vance Filed herewith.
Management for EV Classic Greater China
Growth Fund dated December 17, 1993.
(e) Form of Management Contract with Eaton Filed as Exhibit (5)(e) to Post-Effective
Vance Management for EV Marathon Amendment No. 57 and incorporated herein by
Information Age Fund. reference.
(f) Form of Management Contract with Eaton Filed as Exhibit (5)(f) to Post-Effective
Vance Management for EV Traditional Amendment No. 57 and incorporated herein by
Information Age Fund. reference.
(6)(a)(1)Distribution Agreement with Eaton Vance Filed herewith.
Distributors, Inc. dated August 30,
1989.
(a)(2)Distribution Agreement with Eaton Vance Filed herewith.
Distributors, Inc. for Eaton Vance
Greater China Growth Fund.
(a)(3)Distribution Agreement with Eaton Vance Filed herewith.
Distributors, Inc. for EV Marathon
Greater China Growth Fund dated June
7,1993.
(a)(4)Distribution Agreement with Eaton Vance Filed herewith.
Distributors, Inc. for EV Classic
Greater China Growth Fund.
(a)(5)Distribution Agreement with Eaton Vance Filed herewith.
Distributors, Inc. for EV Classic Growth
Fund.
(a)(6)Distribution Agreement with Eaton Vance Filed herewith.
Distributors, Inc. for EV Marathon
Growth Fund.
(a)(7)Form of Distribution Agreement with Filed as Exhibit (6)(a)(7) to Post-Effective
Eaton Vance Distributors, Inc. for EV Amendment No. 57 and incorporated herein by
Marathon Information Age Fund. reference.
(a)(8)Form of Distribution Agreement with Filed as Exhibit (6)(a)(8) to Post-Effective
Eaton Vance Distributors, Inc. for EV Amendment No. 57 and incorporated herein by
Traditional Information Age Fund. reference.
(a)(9)Distribution Agreement with Eaton Vance Filed herewith.
Distributors, Inc. for EV Marathon Gold
& Natural Resources Fund dated August
15, 1995.
(b) Selling Group Agreement between Eaton Filed herewith.
Vance Distributors, Inc. and Authorized
Firms.
(c) Schedule of Dealer Discounts and Sales Filed herewith.
Charges.
(7) The Securities and Exchange Commission
has granted the Registrant an exemptive
order that permits the Registrant to
enter into deferred compensation
arrangements with its indepen- dent
Trustees. See in the Matter of Capital
Exchange Fund, Inc., Release No. IC-
20671 (November 1, 1994).
(8) Custodian Agreement with Investors Bank Filed herewith.
& Trust Company dated November 7, 1994.
(9)(a) Administrative Services Agreement with Filed herewith.
Eaton Vance Management for EV
Traditional Growth Fund.
(b) Administrative Services Agreement with Filed herewith.
Eaton Vance Management for EV Classic
Growth Fund.
(c) Administrative Services Agreement with Filed herewith.
Eaton Vance Management for EV Marathon
Growth Fund.
(d) Transfer Agency Agreement dated June 7, Filed herewith.
1989.
(e) Amendment to Transfer Agency Agreeement Filed herewith.
dated February 1, 1993.
(10) Not applicable
(11) Consent of Independent Auditors for EV Filed herewith.
Marathon Gold & Natural Resources Fund.
(12) Not applicable
(13) Not applicable
(14) (1)Vance, Sanders Profit Sharing Retirement Filed as Exhibit (8)(b)(1) to Post-Effective
Plan for Self-Employed Persons with Amendment No. 28 and incorporated herein by
Adoption Agreement and instructions. reference.
(2)Eaton & Howard, Vance Sanders Defined Filed as Exhibit (14)(2) to Post-Effective
Contribution Prototype Plan and Trust Amendment No. 29 and incorporated herein by
with Adoption Agreements: reference.
(1) Basic Profit-Sharing Retirement
Plan.
(2) Basic Money Purchase Pension Plan.
(3) Thrift Plan Qualifying as Profit-
Shar$ing Plan.
(4) Thrift Plan Qualifying as Money
Purchase Plan.
(5) Integrated Profit-Sharing Retirement
Plan.
(6) Integrated Money Purchase Pension
Plan.
(3)Individual Retirement Custodian Account Filed as Exhibit 18 to Post-Effective Amendment
(Form 5305A) and Instructions. No. 24 on Form S-5, File #2-22019 and
incorporated herein by reference.
(15)(a) Service Plan dated July 7, 1993 pursuant Filed herewith.
to Rule 12b-1 under the Investment
Company Act of 1940 for EV Traditional
Growth Fund.
(b) Distribution Plan pursuant to Rule 12b-1 Filed herewith.
under the Investment Company Act of 1940
for Eaton Vance Greater China Growth
Fund.
(c) Distribution Plan pursuant to Rule 12b-1 Filed herewith.
under the Investment Company Act of 1940
for EV Marathon Greater China Growth
Fund dated June 7, 1993.
(d) Distribution Plan pursuant to Rule 12b-1 Filed herewith.
under the Investment Company Act of 1940
for EV Classic Greater China Growth
Fund.
(e) Distribution Plan for EV Classic Growth Filed herewith.
Fund pursuant to Rule 12b-1 under the
Investment Company Act of 1940.
(f) Distribution Plan for EV Marathon Growth Filed herewith.
Fund pursuant to Rule 12b-1 under the
Investment Company Act of 1940.
(g) Form of Distribution Plan for Eaton Filed as Exhibit (15)(g) to Post-Effective
Vance Growth Trust pursuant to Rule Amendment No. 57 and incorporated herein by
12b-1 under the Investment Company Act reference.
of 1940, as amended, on behalf of EV
Marathon Information Age Fund.
(h) Form of Distribution Plan for Eaton Filed as Exhibit (15)(g) to Post-Effective
Vance Growth Trust pursuant to Rule Amendment No. 57 and incorporated herein by
12b-1 under the Investment Company Act reference.
of 1940, as amended, on behalf of EV
Traditional Information Age Fund.
(i) Distribution Plan for Eaton Vance Growth Filed herewith.
Trust pursuant to Rule 12b-1 under the
Investment Company Act of 1940, as
amended, on behalf of EV Marathon Gold &
Natural Resources Fund dated June 19,
1995.
(16) Schedule for Computation of Performance Filed herewith.
Quotations.
(17)(a) Power of Attorney dated August 7, 1995 Filed herewith.
for Eaton Vance Growth Trust.
(b) Power of Attorney dated March 30, 1993 Filed herewith.
for Greater China Growth Portfolio.
(c) Power of Attorney dated August 7, 1995 Filed herewith
for Growth Portfolio.
</TABLE>
ITEM 25. PERSONS CONTROLLED BY OR UNDER COMMON CONTROL WITH REGISTRANT
Not applicable
ITEM 26. NUMBER OF HOLDERS OF SECURITIES
(2)
NUMBER OF RECORD
(1) HOLDERS AS OF
TITLE OF CLASS JULY 31, 1995
-------------- ----------------
Shares of beneficial interest without par value
EV Traditional Growth Fund 11,251
EV Marathon Growth Fund 120
EV Classic Growth Fund 13
EV Traditional Greater China Growth Fund 20,719
EV Marathon Greater China Growth Fund 29,214
EV Classic Greater China Growth Fund 1,270
EV Marathon Gold & Natural Resources Fund 938
ITEM 27. INDEMNIFICATION
No change from the information set forth in Item 27 of Form N-1A, filed as
Post-Effective Amendment No. 41 to the Registration Statement under the
Securities Act of 1933 and Amendment No. 14 under the Investment Company Act
of 1940, which information is incorporated herein by reference.
Registrant's Trustees and officers are insured under a standard mutual
fund errors and omissions insurance policy covering loss incurred by reason of
negligent errors and omissions committed in their capacities as such.
ITEM 28. BUSINESS AND OTHER CONNECTIONS OF INVESTMENT ADVISER
Reference is made to the information set forth under the caption
"Investment Adviser and Administrator" in the Statement of Additional
Information, which information is incorporated herein by reference.
ITEM 29. PRINCIPAL UNDERWRITER
(A) Registrant's principal underwriter, Eaton Vance Distributors, Inc., a
wholly-owned subsidiary of Eaton Vance Management, is the principal
underwriter for each of the investment companies named below:
<TABLE>
<C> <C>
EV Classic Alabama Tax Free Fund EV Classic Florida Limited Maturity
EV Classic Arizona Tax Free Fund Tax Free Fund
EV Classic Arkansas Tax Free Fund EV Classic Florida Tax Free Fund
EV Classic California Limited Maturity EV Classic Georgia Tax Free Fund
Tax Free Fund EV Classic Government Obligations Fund
EV Classic California Municipals Fund EV Classic Greater China Growth Fund
EV Classic Colorado Tax Free Fund EV Classic Growth Fund
EV Classic Connecticut Limited Maturity EV Classic Hawaii Tax Free Fund
Tax Free Fund EV Classic High Income Fund
EV Classic Connecticut Tax Free Fund EV Classic Investors Fund
EV Classic Florida Insured Tax Free Fund EV Classic Kansas Tax Free Fund
<PAGE>
EV Classic Kentucky Tax Free Fund EV Marathon Georgia Tax Free Fund
EV Classic Louisiana Tax Free Fund EV Marathon Gold & Natural Resources Fund
EV Classic Maryland Tax Free Fund EV Marathon Government Obligations Fund
EV Classic Massachusetts Limited Maturity EV Marathon Greater China Growth Fund
Tax Free Fund EV Marathon Greater India Fund
EV Classic Massachusetts Tax Free Fund EV Marathon Growth Fund
EV Classic Michigan Limited Maturity EV Marathon Hawaii Tax Free Fund
Tax Free Fund EV Marathon High Income Fund
EV Classic Michigan Tax Free Fund EV Marathon High Yield Municipals Fund
EV Classic Minnesota Tax Free Fund EV Marathon Investors Fund
EV Classic Mississippi Tax Free Fund EV Marathon Kansas Tax Free Fund
EV Classic Missouri Tax Free Fund EV Marathon Kentucky Tax Free Fund
EV Classic National Limited Maturity Tax Free Fund EV Marathon Louisiana Tax Free Fund
EV Classic National Municipals Fund EV Marathon Maryland Tax Free Fund
EV Classic New Jersey Limited Maturity EV Marathon Massachusetts Limited Maturity
Tax Free Fund Tax Free Fund
EV Classic New Jersey Tax Free Fund EV Marathon Massachusetts Tax Free Fund
EV Classic New York Limited Maturity EV Marathon Michigan Limited Maturity
Tax Free Fund Tax Free Fund
EV Classic New York Tax Free Fund EV Marathon Michigan Tax Free Fund
EV Classic North Carolina Tax Free Fund EV Marathon Minnesota Tax Free Fund
EV Classic Ohio Limited Maturity Tax Free Fund EV Marathon Mississippi Tax Free Fund
EV Classic Ohio Tax Free Fund EV Marathon Missouri Tax Free Fund
EV Classic Oregon Tax Free Fund EV Marathon National Limited Maturity
EV Classic Pennsylvania Limited Maturity Tax Free Fund
Tax Free Fund EV Marathon National Municipals Fund
EV Classic Pennsylvania Tax Free Fund EV Marathon New Jersey Limited Maturity
EV Classic Rhode Island Tax Free Fund Tax Free Fund
EV Classic Strategic Income Fund EV Marathon New Jersey Tax Free Fund
EV Classic South Carolina Tax Free Fund EV Marathon New York Limited Maturity
EV Classic Special Equities Fund Tax Free Fund
EV Classic Senior Floating-Rate Fund EV Marathon New York Tax Free Fund
EV Classic Stock Fund EV Marathon North Carolina Limited Maturity
EV Classic Tennessee Tax Free Fund Tax Free Fund
EV Classic Texas Tax Free Fund EV Marathon North Carolina Tax Free Fund
EV Classic Total Return Fund EV Marathon Ohio Limited Maturity Tax Free Fund
EV Classic Virginia Tax Free Fund EV Marathon Ohio Tax Free Fund
EV Classic West Virginia Tax Free Fund EV Marathon Oregon Tax Free Fund
EV Marathon Alabama Tax Free Fund EV Marathon Pennsylvania Limited Maturity
EV Marathon Arizona Limited Maturity Tax Free Fund
Tax Free Fund EV Marathon Pennsylvania Tax Free Fund
EV Marathon Arizona Tax Free Fund EV Marathon Rhode Island Tax Free Fund
EV Marathon Arkansas Tax Free Fund EV Marathon Strategic Income Fund
EV Marathon California Limited Maturity EV Marathon South Carolina Tax Free Fund
Tax Free Fund EV Marathon Special Equities Fund
EV Marathon California Municipals Fund EV Marathon Stock Fund
EV Marathon Colorado Tax Free Fund EV Marathon Tennessee Tax Free Fund
EV Marathon Connecticut Limited Maturity EV Marathon Texas Tax Free Fund
Tax Free Fund EV Marathon Total Return Fund
EV Marathon Connecticut Tax Free Fund EV Marathon Virginia Limited Maturity
EV Marathon Emerging Markets Fund Tax Free Fund
Eaton Vance Equity - Income Trust EV Marathon Virginia Tax Free Fund
EV Marathon Florida Insured Tax Free Fund EV Marathon West Virginia Tax Free Fund
EV Marathon Florida Limited Maturity EV Traditional California Municipals Fund
Tax Free Fund EV Traditional Connecticut Tax Free Fund
EV Marathon Florida Tax Free Fund EV Traditional Emerging Markets Fund
<PAGE>
EV Traditional Florida Insured Tax Free Fund EV Traditional New Jersey Tax Free Fund
EV Traditional Florida Limited Maturity EV Traditional New York Limited Maturity
Tax Free Fund Tax Free Fund
EV Traditional Florida Tax Free Fund EV Traditional New York Tax Free Fund
EV Traditional Government Obligations Fund EV Traditional Pennsylvania Tax Free Fund
EV Traditional Greater China Growth Fund EV Traditional Special Equities Fund
EV Traditional Greater India Fund EV Traditional Stock Fund
EV Traditional Growth Fund EV Traditional Total Return Fund
EV Traditional High Yield Municipals Fund Eaton Vance Cash Management Fund
Eaton Vance Income Fund of Boston Eaton Vance Liquid Assets Trust
EV Traditional Investors Fund Eaton Vance Money Market Fund
Eaton Vance Municipal Bond Fund L.P. Eaton Vance Prime Rate Reserves
EV Traditional National Limited Maturity Eaton Vance Short-Term Treasury Fund
Tax Free Fund Eaton Vance Tax Free Reserves
EV Traditional National Municipals Fund Massachusetts Municipal Bond Portfolio
</TABLE>
<TABLE>
<CAPTION>
(b)
(1) (2) (3)
NAME AND PRINCIPAL POSITIONS AND OFFICES POSITIONS AND OFFICE
BUSINESS ADDRESS WITH PRINCIPAL UNDERWRITER WITH REGISTRANT
------------------ -------------------------- --------------------
<C> <C> <C>
James B. Hawkes* Vice President and Director President and Trustee
William M. Steul* Vice President and Director None
Wharton P. Whitaker* President and Director None
Howard D. Barr Vice President None
2750 Royal View Court
Oakland, Michigan
Nancy E. Belza Vice President None
463-1 Buena Vista East
San Francisco, California
Chris Berg Vice President None
45 Windsor Lane
Palm Beach Gardens, Florida
H. Day Brigham, Jr.* Vice President None
Susan W. Bukima Vice President None
106 Princess Street
Alexandria, Virginia
Jeffrey W. Butterfield Vice President None
9378 Mirror Road
Columbus, Indiana
Mark A. Carlson* Vice President None
Jeffrey Chernoff Vice President None
115 Concourse West
Bright Waters, New York
William A. Clemmer* Vice President None
James S. Comforti Vice President None
1859 Crest Drive
Encinitas, California
Mark P. Doman Vice President None
107 Pine Street
Philadelphia, Pennsylvania
Michael A. Foster Vice President None
850 Kelsey Court
Centerville, Ohio
William M. Gillen Vice President None
280 Rea Street
North Andover, Massachusetts
Hugh S. Gilmartin Vice President None
1531-184th Avenue, NE
Bellevue, Washington
Richard E. Houghton* Vice President None
Brian Jacobs* Senior Vice President None
Stephen D. Johnson Vice President None
13340 Providence Lake Drive
Alpharetta, Georgia
Thomas J. Marcello Vice President None
553 Belleville Avenue
Glen Ridge, New Jersey
Timothy D. McCarthy Vice President None
9801 Germantown Pike
Lincoln Woods Apt. 416
Lafayette Hill, Pennsylvania
Morgan C. Mohrman* Senior Vice President None
Gregory B. Norris Vice President None
6 Halidon Court
Palm Beach Gardens, Florida
Thomas Otis* Secretary and Clerk Secretary
George D. Owen Vice President None
1911 Wildwood Court
Blue Springs, Missouri
F. Anthony Robinson Vice President None
510 Gravely Hill Road
Wakefield, Rhode Island
Benjamin A. Rowland, Jr.* Vice President, None
Treasurer and Director
John P. Rynne* Vice President None
George V.F. Schwab, Jr. Vice President None
9501 Hampton Oaks Lane
Charlotte, North Carolina
Cornelius J. Sullivan* Vice President None
Maureen C. Tallon Vice President None
518 Armistead Drive
Nashville, Tennessee
David M. Thill Vice President None
126 Albert Drive
Lancaster, New York
Chris Volf Vice President None
6517 Thoroughbred Loop
Odessa, Florida
Donald E. Webber* Senior Vice President None
Sue Wilder Vice President None
141 East 89th Street
New York, New York
----------
*Address is 24 Federal Street, Boston, MA 02110
</TABLE>
(c) Not applicable
ITEM 30. LOCATION OF ACCOUNTS AND RECORDS
All applicable accounts, books and documents required to be maintained by
the Registrant by Section 31(a) of the Investment Company Act of 1940 and the
Rules promulgated thereunder are in the possession and custody of the
Registrant's custodian, Investors Bank & Trust Company, 24 Federal Street,
Boston, MA 02110 and 89 South Street, Boston, MA 02111, and its transfer
agent, The Shareholder Services Group, Inc., 53 State Street, Boston, MA
02104, with the exception of certain corporate documents and portfolio trading
documents which are in the possession and custody of Eaton Vance Management,
24 Federal Street, Boston, MA 02110. Registrant is informed that all
applicable accounts, books and documents required to be maintained by
registered investment advisers are in the custody and possession of Eaton
Vance Management.
ITEM 31. MANAGEMENT SERVICES
Not applicable
ITEM 32. UNDERTAKINGS
The Registrant undertakes to file a Post-Effective Amendment, using
financial statements which need not be certified, within four to six months
from the effective date of Post-Effective Amendment No. 57.
The Registrant undertakes to furnish to each person to whom a prospectus
is delivered a copy of the latest annual report to shareholders, upon request
and without charge.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, and the
Investment Company Act of 1940, the Registrant certifies that it has duly
caused this Amendment to its Registration Statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Boston, and
Commonwealth of Massachusetts, on the 16th day of August, 1995.
EATON VANCE GROWTH TRUST
By /s/ JAMES B. HAWKES
------------------------------
JAMES B. HAWKES, President
Pursuant to the requirements of the Securities Act of 1933, this Post-
Effective Amendment to the Registration Statement has been signed below by the
following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <C> <C>
President, Principal Executive
/s/ JAMES B. HAWKES Officer and Trustee August 16, 1995
------------------------------------
JAMES B. HAWKES
Treasurer and Principal
Financial and Accounting
/s/ JAMES L. O'CONNOR Officer August 16, 1995
------------------------------------
JAMES L. O'CONNOR
/s/ LANDON T. CLAY Trustee August 16, 1995
------------------------------------
LANDON T. CLAY
/s/ DONALD R. DWIGHT Trustee August 16, 1995
------------------------------------
DONALD R. DWIGHT
/s/ SAMUEL L. HAYES, III Trustee August 16, 1995
------------------------------------
SAMUEL L. HAYES, III
/s/ NORTON H. REAMER Trustee August 16, 1995
------------------------------------
NORTON H. REAMER
/s/ JOHN L. THORNDIKE Trustee August 16, 1995
------------------------------------
JOHN L. THORNDIKE
/s/ JACK L. TREYNOR Trustee August 16, 1995
------------------------------------
JACK L. TREYNOR
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT INDEX
PAGE IN
SEQUENTIAL
NUMBERING
EXHIBIT NO. DESCRIPTION ---------
----------- ----------- SYSTEM
<S> <C> <C>
(1)(a) Declaration of Trust dated May 25, 1989.
(b) Amendment to the Declaration of Trust dated August 18, 1992.
(c) Amendment and Restatement of Establishment and Designation of Series
dated June 19, 1995.
(2)(a) By-Laws.
(b) Amendment to By-Laws of Eaton Vance Growth Trust dated December 13,
1993.
(5)(a) Investment Advisory Agreement with Eaton Vance Management for EV
Marathon Gold & Natural Resources Fund dated August 15, 1995.
(b) Management Contract with Eaton Vance Management for Eaton Vance
Greater China Growth Fund.
(c) Management Contract with Eaton Vance Management for EV Marathon
Greater China Growth Fund.
(d) Management Contract with Eaton Vance Management for EV Classic Greater
China Growth Fund.
(6)(a)(1) Distribution Agreement with Eaton Vance Distributors, Inc. dated
August 30, 1989.
(2) Distribution Agreement with Eaton Vance Distributors, Inc. for Eaton
Vance Greater China Growth Fund.
(3) Distribution Agreement with Eaton Vance Distributors, Inc. for EV
Marathon Greater China Growth Fund.
(4) Distribution Agreement with Eaton Vance Distributors, Inc. for EV
Classic Greater China Growth Fund.
(5) Distribution Agreement with Eaton Vance Distributors, Inc. for EV
Classic Growth Fund.
(6) Distribution Agreement with Eaton Vance Distributors, Inc. for EV
Marathon Growth Fund.
(9) Distribution Agreement with Eaton Vance Distributors, Inc. for EV
Marathon Gold & Natural Resources Fund.
(b) Selling Group Agreement between Eaton Vance Distributors, Inc. and
Authorized Firms.
(c) Schedule of Dealer Discounts and Sales Charges.
(8) Custodian Agreement with Investors Bank & Trust Company dated November
7, 1994.
(9)(a) Administrative Services Agreement with Eaton Vance Management for EV
Traditional Growth Fund.
(b) Administrative Services Agreement with Eaton Vance Management for EV
Classic Growth Fund.
(c) Administrative Services Agreement with Eaton Vance Management for EV
Marathon Growth Fund.
(d) Transfer Agency Agreement dated June 7, 1989.
(e) Amendment to Transfer Agency Agreement dated February 1, 1993.
(11) Consent of Independent Auditors for EV Gold & Natural Resources Fund
dated July 14, 1995.
(15)(a) Service Plan dated July 7, 1993 for EV Traditional Growth Fund.
(b) Distribution Plan for Eaton Vance Greater China Growth Fund.
(c) Distribution Plan for EV Marathon Greater China Growth Fund.
(d) Distribution Plan for EV Classic Greater China Growth Fund.
(e) Distribution Plan for EV Classic Growth Fund.
(f) Distribution Plan for EV Marathon Growth Fund.
(i) Distribution Plan for EV Marathon Gold & Natrual Resources Fund.
(16) Schedule for Computation of Performance Quotations.
(17)(a) Power of Attorney for Eaton Vance Growth Trust dated August 7, 1995.
(b) Power of Attorney for Greater China Growth Portfolio.
(c) Power of Attorney for Growth Portfolio.
</TABLE>
EXHIBIT 99.1(a)
EATON VANCE GROWTH FUND
DECLARATION OF TRUST
Dated May 25, 1989
DECLARATION OF TRUST, made May 25, 1989 by James B. Hawkes and John L.
Thorndike hereinafter referred to collectively as the "Trustees" and
individually as a "Trustee", which terms shall include any successor Trustees or
Trustee and any present Trustees who are not signatories to this instrument.
WHEREAS, the Trustees desire to establish a trust fund under a
Declaration of Trust for the investment and reinvestment of funds contributed
thereto;
NOW, THEREFORE, the Trustees declare that all money and property
contributed to the trust fund hereunder shall be held and managed under this
Declaration of Trust IN TRUST as herein set forth below.
ARTICLE I
NAME
This Trust shall be known as Eaton Vance Growth Fund.
ARTICLE II
PURPOSE OF TRUST
The purpose of this Trust is to provide investors with a continuous
source of managed investment primarily in securities.
ARTICLE III
MANAGEMENT OF THE TRUST
The business and affairs of the Trust shall be managed by the Trustees
and they shall have all powers necessary and appropriate to perform that
function. The number, term of office, manner of election, resignation, filling
of vacancies and procedures with respect to meetings of Trustees shall be as
prescribed in the By-Laws of the Trust.
ARTICLE IV
OWNERSHIP OF ASSETS OF THE TRUST
The legal title to all cash, securities and property held by the Trust
shall at all times be vested in the Trustees. Shareholders (hereinafter referred
to as "Shareholders", or individually as a "Shareholder") of the Trust shall not
have title to any such assets held by the Trust, but each Shareholder shall be
deemed to own a proportionate undivided beneficial interest in the Trust equal
to the number of Shares of a series, if more than one series of Shares is
established by the Trustees as provided in Section 2 of Article VI, of which
such Shareholder is the record owner divided by the total number of Shares of
such series outstanding.
ARTICLE V
POWERS OF THE TRUSTEES
The Trustees in all instances shall act as principals The Trustees
shall have full power and authority to do any and all acts and to make and
execute any and all contracts and instruments that they may consider necessary
or appropriate in connection with the management of the Trust. The Trustees
shall not be bound or limited by present or future laws or customs in regard to
trust investments, but shall have full authority and power to make any and all
investments which they, in their uncontrolled discretion, shall deem proper to
accomplish the purpose of this Trust. The Trustees shall have full power and
authority to adopt such accounting and tax accounting practices as they consider
appropriate. Without limiting the generality of the foregoing, the Trustees
shall have power and authority:
(a) To buy, and invest funds of the Trust in, own, hold for investment
or otherwise, and to sell or otherwise dispose of, securities
including, but not limited to, bonds, debentures, warrants and rights
to purchase securities, certificates of beneficial interest, notes or
other evidences of indebtedness, or other negotiable securities,
however named or described, issued by corporations, trusts,
associations or other persons, domestic or foreign, or issued and
guaranteed by the United States of America or any agency or
instrumentality thereof, by the government of any foreign country, by
any State of the United States, or by any political sub-division or
agency of any State or foreign country, deposit any assets of the Trust
in any bank, trust company or banking institution or retain any such
assets in cash; to purchase and sell (or write) options on securities,
currency, precious metals and other commodities, indices, futures
contracts and other financial instruments and enter into closing
transactions in connection therewith; to enter into all types of
commodities contracts, including without limitation the purchase and
sale of futures contracts on securities, currency, precious metals and
other commodities, indices and other financial instruments; to enter
into forward foreign currency exchange contracts; to purchase and sell
gold and silver bullion, precious or strategic metals, coins and
currency of all countries; to engage in "when issued" and delayed
delivery transactions; to enter into repurchase agreements and reverse
repurchase agreements; and to employ all kinds of hedging techniques
and investment management strategies; and from time to time change the
investments of the funds of the Trust.
(b) To adopt By-Laws not inconsistent with this Declaration of Trust
providing for the conduct of the business of the Trust, which By-Laws
shall bind the Shareholders, and to amend and repeal such By-Laws to
the extent that such authority is not otherwise reserved to the
Shareholders.
(c) To elect and remove such officers of the Trust and to appoint and
terminate such agents of the Trust as they consider appropriate.
(d) To employ one or more banks, trust companies or banking
institutions as custodian of any assets of the Trust subject to any
conditions set forth in this Declaration of Trust or in the By-Laws.
(e) To retain one or more transfer agents and shareholder servicing
agents, or both, which may be the same entity, for the Trust.
(f) From time to time to sell Shares of the Trust either for cash or
property whenever and in such amounts as the Trustees may deem
desirable and to provide for the distribution of Shares of the Trust
either through one or more principal underwriters in the manner
hereinafter provided for or by the Trust itself, or both.
(g) To set record dates or direct that the Share transfer books be
closed for a stated period for the purpose of making a determination
with respect to Shareholders, including which Shareholders are entitled
to notice of a meeting, vote at a meeting, consent to actions or other
matters, receive a distribution or dividend, or exercise or be allotted
other rights.
(h) To delegate such authority as they consider desirable to any
officers of the Trust and to any agent, custodian or underwriter.
(i) To sell or give assent, or exercise any rights of ownership, with
respect to stock or other securities or property held by the Trust, and
to execute and deliver powers of attorney to such person or persons as
the Trustees shall deem proper, granting to such person or persons such
power and discretion with relation to stock or other securities or
property as the Trustees shall deem proper.
(j) To exercise all of the rights of the Trust as owner of any
securities which might be exercised by any individual owning such
securities in his own right, including without limitation the right to
vote by proxy for any and all purposes (including the right to
authorize any officer or agent of the Trust to execute proxies), to
consent to the reorganization, merger or consolidation of any company,
or to consent to the sale or lease of all or substantially all of the
property and assets of any company to any other company; to exchange
any of the securities of any company for the securities, including
shares of stock, issued therefor upon any such reorganization, merger,
consolidation, sale or lease; to exercise any conversion or
subscription privileges, rights, options and warrants incident to the
ownership of any security owned by it or acquired therewith; to hold
any securities acquired in the name of any custodian of the assets of
the Trust, or in the name of its nominee or a nominee of the Trust, or
in any manner permitted herein or in the By-Laws; and to execute any
and all instruments and do any and all things incidental to the Trust
not inconsistent with the provisions hereof, the execution or
performance of which the Trustees may deem expedient.
(k) To hold any security or property in a form not indicating any
trust, whether in bearer, unregistered or other negotiable form; or
either in its own name or in the name of a custodian or a nominee or
nominees of the Trust or of a custodian, subject in either case to
proper safeguards according to the usual practice of Massachusetts
trust companies or investment companies.
(l) To compromise, arbitrate, or otherwise adjust claims of the Trust
in favor of or against the Trust or any matter in controversy
including, but not limited to, claims for taxes.
(m) To make distributions of the earnings or profits, surplus
(including paid-in surplus), capital or assets of the Trust to
Shareholders in the manner hereinafter provided for, the amount of such
distributions and their payment to be solely at the discretion of the
Trustees.
(n) To pay any and all taxes or liens of whatever nature or
kind imposed upon or against the Trust or any part thereof, or imposed
upon any of the Trustees herein, individually or jointly, by reason of
the Trust, or of the business conducted by said Trustees under the
terms of this Declaration of Trust, out of the funds of the Trust
available for such purpose.
(o) To engage in and to prosecute, compound, compromise, abandon, or
adjust, by arbitration, or otherwise, any actions, suits, proceedings,
disputes, claims, demands, and things relating to the Trust, and out of
the assets of the Trust to pay, or to satisfy, any debts, claims or
expenses incurred in connection therewith, including those of
litigation, upon any evidence that the Trustees may deem sufficient The
powers aforesaid are to include any actions, suits, proceedings,
disputes, claims, demands and things relating to the Trust wherein any
of the Trustees may be named individually, but the subject matter of
which arises by reason of business for and on behalf of the Trust.
(p) To buy or join with any person or persons in buying the property of
any corporation, association, or other organization any of the
securities of which are included in the Trust, or any property in which
the Trustees, as such, shall have or may hereafter acquire an interest,
and to allow the title to any property so bought to be taken in the
name or names of, and to be held by, such person, or persons as the
Trustees shall name or approve.
(q) From time to time in their discretion to enter into, modify and
terminate agreements with Federal or state regulatory authorities,
which agreements may restrict but not amplify their powers under this
Declaration of Trust.
(r) To borrow money and in this connection issue notes or other
evidence of indebtedness; to secure borrowings by mortgaging, pledging
or otherwise subjecting as security the Trust property; to endorse,
guarantee, or undertake the performance of any obligation or engagement
of any other person and to lend the portfolio securities or other
assets of the Trust to other persons.
(s) From time to time in their discretion to charge all or any part of
any cost, expense or expenditure (including without limitation any
expense of selling or distributing the Shares of the Trust) or tax
against the principal or capital of the Trust, and to credit all or any
part of any profit, income or receipt (including without limitation any
deferred sales charge or fee, whether contingent or otherwise, paid or
payable to the Trust on any redemption or repurchase of Shares of the
Trust) to the principal or capital of the Trust.
The foregoing enumeration of specific powers shall not be held to limit
or restrict in any manner the general powers of the Trustees.
No one dealing with the Trustees shall be under any obligation to make
any inquiry concerning the authority of the Trustees, or to see to the
application of any payments made or property transferred to the Trustees or upon
their order. The Trustees may authorize one of their number to sign, execute,
acknowledge, and deliver any agreement, contract, note, deed, certificate or
other instrument in the name of, and in behalf of, the Trust, and upon such
authorization such signature, acknowledgement or delivery shall have full force
and effect as the act of all of the Trustees.
ARTICLE VI
BENEFICIAL INTEREST
Section 1. Shares of Beneficial Interest The beneficial interest in the
Trust shall at all times be divided into an unlimited number of transferable
shares (herein referred to as the "Shares" and individually as a "Share"),
without par value The Trustees may, in their discretion and as provided by
Section 2 of this Article VI, authorize the division of Shares into two or more
series, and the Trustees may vary the relative rights and preferences between
different series. Each Share represents an equal proportionate interest in the
Trust or the series with each other outstanding Share of the Trust or the
series, as the case may be. The Trustees may from time to time divide or combine
the Shares into a greater or lesser number without thereby changing the
proportionate beneficial interests in the Trust or in any series. Contributions
to the Trust may be accepted for, and Shares shall be redeemed as, whole Shares
and/or fractional Shares as the Trustees may in their discretion determine. The
Trustees may issue certificates of beneficial interest to evidence ownership of
such Shares.
Section 2. Series Designation The Trustees, in their discretion, may
authorize the division of Shares into two or more series, and the different
series shall be established and designated, and the variations in the relative
rights and preferences as between the different series shall be fixed and
determined by the Trustees; provided, that all Shares shall be identical except
that there may be variations so fixed and determined between different series as
to investment objective, investment policies, purchase price, right of
redemption, special and relative rights as to dividends and on liquidation,
conversion rights, and conditions under which the several series shall have
separate voting rights. All references to Shares in this Declaration shall be
deemed to be shares of any or all series as the context may require.
If the Trustees shall divide the Shares of the Trust into two or more
series, the following provisions shall be applicable:
(a) The number of authorized Shares and the number of Shares of each
series that may be issued shall be unlimited. The Trustees may classify or
reclassify any unissued Shares or any Shares previously issued and reacquired of
any series into one or more series that may be established and designated from
time to time. The Trustees may hold as treasury shares (of the same or some
other series), reissue for such consideration and on such terms as they may
determine, or cancel any Shares of any series reacquired by the Trust at their
discretion from time to time.
(b) All consideration received by the Trust for the issue or sale of
Shares of a particular series, together with all assets in which such
consideration is invested or reinvested, all income, earnings, profits, and
proceeds thereof, including any proceeds derived from the sale, exchange or
liquidation of such assets, and any funds or payments derived from any
reinvestment of such proceeds in whatever form the same may be, shall
irrevocably belong to that series for all purposes, subject only to the rights
of creditors and except as may otherwise be required by applicable tax laws, and
shall be so recorded upon the books of account of the Trust. In the event that
there are any assets, income, earnings, profits, and proceeds thereof, funds or
payments which are not readily identifiable as belonging to any particular
series, the Trustees shall allocate them among any one or more of the series
established and designated from time to time in such manner and on such basis as
they, in their sole discretion, deem fair and equitable. Each such allocation by
the Trustees shall be conclusive and binding upon the shareholders of all series
for all purposes.
(c) The assets belonging to each particular series shall be charged
with the liabilities of the Trust in respect of that series and all expenses,
costs, charges and reserves attributable to that series, and any general
liabilities, expenses, costs, charges or reserves of the Trust which are not
readily identifiable as belonging to any particular series shall be allocated
and charged by the Trustees to and among any one or more of the series
established and designated from time to time in such manner and on such basis as
the Trustees in their sole discretion deem fair and equitable. Each allocation
of liabilities, expenses, costs, charges and reserves by the Trustees shall be
conclusive and binding upon the holders of all series for all purposes. The
Trustees shall have full discretion, to the extent not inconsistent with the
Investment Company Act of 1940, to determine which items are capital; and each
such determination and allocation shall be conclusive and binding upon the
Shareholders.
The establishment and designation of any series of Shares shall be
effective upon the execution by a majority of the then Trustees of an instrument
setting forth such establishment and designation and the relative rights and
preferences of such series, or as otherwise provided in such instrument. At any
time that there are no Shares outstanding of any particular series previously
established and designated, the Trustees may by an instrument executed by a
majority of their number abolish that series and the establishment and
designation thereof. Each instrument referred to in this paragraph shall have
the status of an amendment to this Declaration in accordance with Section 7 of
Article XIV hereof, and a copy of each such instrument shall be filed in
accordance with Section 5 of Article XIV hereof.
Section 3. Ownership of Shares The ownership of Shares shall be
recorded in the books of the Trust or of one or more transfer agents. The
Trustees may make such rules and adopt such procedures as they consider
appropriate for the transfer of Shares and similar matters. The record books of
the Trust or of any transfer agent, as the case may be, shall be conclusive
evidence as to who are the holders of Shares and as to the number of Shares held
from time to time by each such holder.
Section 4. Investments in the Trust The Trustees shall accept
investments in the Trust from such persons and on such terms as they may from
time to time authorize. After the date of the initial contribution of capital,
the number of Shares representing the initial contribution may, in the Trustees'
discretion, be considered as outstanding and the amount received by the Trustees
on account of the contribution shall be treated as an asset of the Trust.
Subsequent investments in the Trust shall be credited to the Shareholder's
account in the form of full and fractional Shares of the Trust at the net asset
value per Share as determined in accordance with Article XII hereof; provided,
however, that the Trustees may, in their sole discretion, impose a sales charge
upon investments in the Trust.
Section 5. Preemptive Rights Shareholders shall have no preemptive or
other right to subscribe to any additional Shares or other securities issued by
the Trust, except as the Trustees may determine with respect to any series of
Shares.
ARTICLE VII
CUSTODY OF ASSETS
The Trustees shall at all times employ a bank or trust company having
an aggregate capital, surplus and undivided profits (as shown in its last
published report) of at least two million dollars ($2,000,000) as the principal
custodian of the Trust (the "Custodian") with authority as its agent, but
subject to such restrictions, limitations and other requirements, if any, as may
be contained in the By-Laws:
(a) To hold the securities owned by the Trust and deliver the same upon
written order;
(b) To receive and receipt for any moneys due to the Trust and deposit
the same in its own banking department or, as the Trustees may direct,
in any bank, trust company or banking institution approved by the
Custodian, provided that all such deposits shall be subject only to the
draft or order of the Custodian; and
(c) To disburse such funds upon orders or vouchers.
The Trustees may also employ such Custodian as its agent:
(a) To keep the books and accounts of the Trust and furnish clerical
and accounting services; and
(b) To compute the net asset value per Share in accordance with the
provision of Article XII hereof.
All of the foregoing services shall be performed upon such basis of
compensation as may be agreed upon between the Trustees and the Custodian. If so
directed by vote of the holders of a majority of the outstanding Shares, the
Custodian shall deliver and pay over all property of the Trust held by it as
specified in such vote.
The Trustees may also authorize the Custodian to employ one or more
sub-custodians from time to time to perform such of the acts and services of the
Custodian and upon such terms and conditions as may be agreed upon between the
Custodian and such sub-custodian and approved by the Trustees.
Subject to such rules, regulations and orders as the Securities and
Exchange Commission (the "Commission") may adopt, the Trustees may direct the
Custodian to deposit all or any part of the securities in a depository and
clearing system established by a national securities exchange or a national
securities association registered with the Commission under the Securities
Exchange Act of 1934, as from time to time amended, or such other person as may
be permitted by the Commission, or otherwise in accordance with the Investment
Company Act of 1940, as from time to time amended (the "1940 Act"), pursuant to
which system all securities of any particular class or series of any issuer
deposited within the system are treated as fungible and may be transferred or
pledged by bookkeeping entry without physical delivery of such securities,
provided that all such deposits shall be subject to withdrawal only upon the
order of the Trust or the Custodian. The Trustees may also authorize the deposit
with one or more eligible foreign custodians of all or part of the Trust's
foreign assets, securities, cash and cash equivalents in amounts reasonably
necessary to effect the Trust's foreign investment transactions, in accordance
with such rules, regulations and orders as the Commission may adopt.
ARTICLE VIII
CONTRACTS
Section 1. Adviser The Trustees may in their discretion from time to
time authorize the Trust to enter into an investment advisory agreement whereby
the other party to such agreement shall undertake to furnish to the Trustees
such investment advisory, statistical and research facilities and services and
such other facilities and services, if any, and all upon such terms and
conditions as the Trustees may in their discretion determine. Notwithstanding
any provisions of this Declaration of Trust, the Trustees may authorize the
Adviser, in its discretion and without any prior consultation with the Trust, to
buy, sell, lend and otherwise trade in any and all securities, commodity
contracts and other investments and assets of the Trust and to engage in and
employ all types of transactions and strategies in connection therewith. Any
such action taken pursuant to such agreement shall be deemed to have been
authorized by all of the Trustees.
The Trustees may also employ, or authorize the Adviser to employ, one
or more sub-investment advisers from time to time to perform such of the acts
and services of the Adviser and upon such terms and conditions as may be agreed
upon between the Adviser and such sub-investment adviser and approved by the
Trustees.
Section 2. Principal Underwriters The Trustees may in their discretion
from time to time authorize the Trust to enter into one or more contracts
providing for the sale of the Shares of the Trust. Pursuant to any such contract
the Trust may either agree to sell the Shares to the other party to the contract
or appoint such other party its sales agent for such Shares (such other party
being herein sometimes called the "underwriter") In either case, any such
contract shall be on such terms and conditions as may be prescribed in the
By-Laws, if any, and such further terms and conditions as the Trustees may in
their discretion determine; and any such contract may also provide for the
repurchase or sale of Shares of the Trust by such other party as principal or as
agent of the Trust.
Section 3. Plan of Distribution The Trustees may in their discretion
authorize the Trust to adopt or enter into a plan or plans of distribution and
any related agreements whereby the Trust may finance directly or indirectly any
activity which is primarily intended to result in sales of Shares. Such plan or
plans of distribution and any related agreements may contain such terms and
conditions as the Trustees may in their discretion determine, subject to the
requirements of Section 12 of the 1940 Act, Rule 12b-1 thereunder, and any other
applicable rules and regulations.
Section 4. Transfer Agents The Trustees may in their discretion from
time to time appoint one or more transfer agents for the Trust Any contract with
a transfer agent shall be on such terms and conditions as the Trustees may in
their discretion determine. The Trustees may employ a transfer agent as the
Trust's agent to (a) keep the books and accounts of the Trust and furnish
clerical and accounting services and (b) compute the net asset value per Share
in accordance with the provisions of Article XII hereof.
Section 5. Parties to Contract Any contract of the character described
in Sections 1, 2, 3 and 4 of this Article VIII or in Article VII hereof may be
entered into with any corporation, firm, trust or association, although one or
more of the Trustees or officers of the Trust may be an officer, director,
trustee, shareholder, or member of such other party to the contract, and no such
contract shall be invalidated or rendered voidable by reason of the existence of
any such relationship, nor shall any person holding such relationship be liable
merely by reason of such relationship for any loss or expense to the Trust under
or by reason of said contract or accountable for any profit realized directly or
indirectly therefrom, provided that the contract when entered into was
reasonable and fair and not inconsistent with the provisions of this Article
VIII, Article VII or the By-Laws. The same person (including a firm,
corporation, trust, or association) may be the other party to contracts entered
into pursuant to Sections 1, 2, 3 and 4 above or Article VII, and any individual
may be financially interested or otherwise affiliated with persons who are
parties to any or all of the contracts mentioned in this Section 5.
ARTICLE IX
COMPENSATION AND REIMBURSEMENT OF TRUSTEES
The Trustees shall be entitled to reasonable compensation from the
Trust and shall be reimbursed from the Trust estate for their expenses and
disbursements incurred by them in connection with the administration and
management of the Trust, including, without limitation, interest expense, taxes,
fees and commissions of every kind, payments made and expenses incurred pursuant
to any plan of distribution referred to in Section 3 of Article VIII hereof,
expenses of issue, repurchase and redemption of shares including expenses
attributable to a program of periodic repurchases or redemptions, expenses of
registering and qualifying the Trust and its Shares under Federal and state laws
and regulations, charges of custodians, transfer agents, shareholder servicing
agents, and registrars, expenses of preparing and setting in type prospectuses,
expenses of printing and distributing prospectuses sent annually to existing
shareholders, auditing and legal expense, reports to Shareholders, expenses of
meetings of Shareholders and proxy solicitations therefor, insurance expense,
association membership dues, expenses primarily intended to result in sales of
Shares of the Trust, and such non-recurring items as may arise, including
litigation to which the Trust is a party and for all losses and liabilities, as
well as such other expenses as the Trustees may determine are properly
chargeable to the Trust. This section shall not preclude the Trust from directly
paying any of the aforementioned fees and expenses.
ARTICLE X
SALE OF SHARES
The Trustees shall have the power from time to time to issue and sell
or cause to be issued and sold an unlimited number of Shares of any series of
the Trust for cash or for property, which shall in every case be paid to the
Custodian as agent of the Trust before the delivery of any certificate for such
Shares. The Shares of the Trust, including any Shares which may have been
redeemed or repurchased by the Trust (herein sometimes referred to as "treasury
shares"), may be sold at a price as specified in the current prospectus of the
Trust.
When an underwriting contract is in effect pursuant to Article VIII,
Section 2, the time of sale shall be the time when an unconditional order is
placed with the underwriter. Such contract may provide for the sale of Shares
either at a price based on the net asset value determined next after the order
is placed with said underwriter or at a price based on a net asset value to be
determined at some later time, or at such other price as is assented to by vote
of a majority of the outstanding voting securities of the Trust. No Shares need
be offered to existing Shareholders before being offered to others. No Shares
shall be sold by the Trust (although Shares previously contracted to be sold may
be issued upon payment therefor) during any period when the determination of net
asset value is suspended by declaration of the Trustees pursuant to the
provisions of Article XII hereof. In connection with the acquisition by merger
or otherwise of all or substantially all the assets of a trust or another
investment company, including companies classified as personal holding companies
under Federal income tax laws, the Trustees may issue or cause to be issued
Shares of the Trust and accept in payment therefor such assets at such value as
may be determined by or under the direction of the Trustees, provided that such
assets are of the character in which the Trustees are permitted to invest the
funds of the Trust.
ARTICLE XI
REDEMPTIONS
Section 1. Redemption In case any Shareholder of record of the Trust
desires to dispose of his Shares, he may deposit at the office of the transfer
agent or other authorized agent of the Trust a written request or such other
form of request as the Trustees may from time to time authorize, requesting that
the Trust purchase the Shares in accordance with this Section l; and the
Shareholder so requesting shall be entitled to require the Trust to purchase,
and the Trust or the underwriter of the Trust shall purchase his said Shares,
but only at the net asset value per Share (as determined under Article XII
hereof) minus any applicable sales charge, except that with respect to any
series of Shares established by the Trustees, the right of a Shareholder to
redeem such Shares may be varied. Payment for such Shares shall be made by the
Trust or the underwriter of the Trust to the Shareholder of record within seven
(7) days after the date upon which the request is received. The Trust may
require Shareholders to pay a sales charge to the Trust, the underwriter or any
other person designated by the Trustees upon redemption or repurchase of Trust
Shares in such amount as shall be determined from time to time by the Trustees.
The Trustees may also charge a redemption or repurchase fee in such amount as
may be determined from time to time by the Trustees. If the Trustees shall have
divided the Shares into two or more series, payment for shares of a series
tendered for redemption shall be made only out of assets allocated to that
series.
Section 2. Manner of Payment Payment for such Shares may at the option
of the Trustees or such officer or officers as they may duly authorize for the
purpose, in their complete discretion, be made in cash, or in kind, or partially
in cash and partially in kind. In case of payment in kind the Trustees, or their
delegate, shall have absolute discretion as to what security or securities shall
be distributed in kind and the amount of the same, and the securities shall be
valued for purposes of distribution at the figure at which they were appraised
in computing the net asset value of the Shares, provided that any Shareholder
who cannot legally acquire securities so distributed in kind by reason of the
prohibitions of the 1940 Act shall receive cash.
Section 3. Suspension of the Right of Redemption If, pursuant to
Article XII hereof, the Trustees declare a suspension of the determination of
net asset value, the rights of Shareholders (including those who shall have
applied for redemption pursuant to Section 1 of this Article XI but who shall
not yet have received payment) to have Shares redeemed and paid for by the Trust
shall be suspended until the termination of such suspension is declared. In the
case of a suspension of the right of redemption, a Shareholder may either
withdraw his request for redemption or receive payment based on the net asset
value existing after the termination of the suspension.
Section 4. Involuntary Redemptions The Trustees may require a
Shareholder to redeem his Shares if the value of the Shares in his account is
below $1,000. The manner of effecting such involuntary redemptions shall be
determined from time to time by the Trustees.
If the Trustees shall, at any time and in good faith, be of the opinion
that direct or indirect ownership of Shares or other securities of the Trust has
or may become concentrated in any person to an extent which would disqualify the
Trust as a regulated investment company under the Internal Revenue Code, then
the Trustees shall have the power by lot or other means deemed equitable by them
(i) to call for redemption by any such person a number, or principal amount, of
Shares or other securities of the Trust sufficient to maintain or bring the
direct or indirect ownership of Shares or other securities of the Trust into
conformity with the requirements for such qualification and (ii) to refuse to
transfer or issue Shares or other securities of the Trust to any person whose
acquisition of the Shares or other securities of the Trust in question would
result in such disqualification. The redemption shall be effected at the
redemption price and in the manner provided in Sections 1 and 2 of this Article
XI.
The holders of Shares or other securities of the Trust shall upon
demand disclose to the Trustees in writing such information with respect to
direct and indirect ownership of Shares or other securities of the Trust as the
Trustees deem necessary to comply with the provisions of the Internal Revenue
Code, or to comply with the requirements of any other taxing authority.
ARTICLE XII
NET ASSET VALUE PER SHARE
The net asset value of each Share of the Trust outstanding shall be
determined by the Trustees not less frequently than once on each day on which
the Trust is open for business, as of the close of trading on the New York Stock
Exchange or at such other time as the Trustees by resolution may determine. The
power and duty to determine net asset value may be delegated by the Trustees
from time to time to one or more of the Trustees and officers of the Trust, to
the other party to any contract entered into pursuant to Article VIII hereof, or
to the Custodian or a transfer agent. For the purpose of this Declaration of
Trust, any reference to the time at which a determination of net asset value is
made shall mean the time as of which the determination is made.
The Trustees may declare a suspension of the determination of net asset
value to the extent permitted by the 1940 Act.
The value of the assets of the Trust shall be determined in a manner
approved by the Trustees. From the total value of said assets, there shall be
deducted all indebtedness, interest and taxes, payable or accrued, expenses and
management charges accrued to the appraisal date, amounts determined and
declared as a distribution and all other items in the nature of liabilities
which shall be deemed appropriate. The resulting amount which shall represent
the total net assets of the Trust shall be divided by the number of Shares
outstanding at the time as of which the calculation is made and the quotient so
obtained shall be deemed to be the net asset value of the Shares.
Nothing in this Article XII shall be construed to affect the ability of
the Trustees to establish any series of Shares in accordance with Section 2 of
Article VI. In such a case, the net asset value per Share of a series shall be
determined as nearly as possible as set forth above for Shares of the Trust.
ARTICLE XIII
DIVIDENDS AND DISTRIBUTIONS
(a) The Trustees may from time to time distribute ratably among the
Shareholders such proportion of the earnings or profits, surplus (including
paid-in surplus), capital, or assets held by the Trustees as they may deem
proper. Such distributions may be made in cash, additional shares or property
(including without limitation any type of obligations of the Trust or any assets
thereof), and the Trustees may distribute ratably among the Shareholders
additional Shares issuable hereunder in the form of a stock dividend or
otherwise in such manner, at such times, and on such terms as the Trustees may
deem proper. Such distributions may be among the Shareholders of record at the
time of declaring a distribution or among the Shareholders of record at such
other date or time or dates or times as the Trustees shall determine. The
Trustees may in their discretion determine that, solely for the purposes of such
distributions, outstanding Shares shall exclude Shares for which orders have
been placed subsequent to a specified time on the date the distribution is
declared as of a day on which Boston banks are not open for business. The
Trustees may always retain from the net profits such amount as they may deem
necessary to pay the debts or expenses of the Trust or to meet obligations of
the Trust, or as they may deem desirable to use in the conduct of its affairs or
to retain for future requirements or extensions of the business. The Trustees
may adopt and offer to Shareholders such dividend reinvestment plans, cash
dividend payout plans or other distribution plans as the Trustees shall deem
appropriate.
(b) The Trustees may prescribe, in their absolute discretion, such
bases and times for determining the amounts for the declaration and payment of
dividends and distributions as they may deem necessary or desirable.
ARTICLE XIV
MISCELLANEOUS
Section 1. Trust Not a Partnership It is hereby expressly declared that
a trust and not a partnership is created hereby. No Trustee hereunder shall have
any power to bind personally either the Trust's officers or any Shareholders.
Section 2. Limitation of Personal Liability The Trustees shall not have
the power to bind the Shareholders or to call upon them or any of them for the
payment of any sum of money or any assessment whatever other than such sums as
the Shareholders at any time personally agree to pay by way of subscription for
Shares or otherwise. All persons or corporations dealing or contracting with the
Trustees as such shall have recourse only to the Trust for the payment of their
claims or for the payment or satisfaction of claims or obligations arising out
of such dealings or contracts, so that neither the Trustees nor the
Shareholders, nor the agents or attorneys of the Trust, past, present or future,
shall be personally liable therefor. In all contracts or instruments creating
liability it may be expressly stipulated, either by such reference to this
instrument as shall accomplish such purpose or otherwise, that the liability of
the Trustees and Shareholders under such contracts or instruments shall be
limited to the assets which may from time to time constitute the Trust.
Section 3. Trustee's Good Faith Action, Expert Advice, No Bond or
Surety The exercise by the Trustees of their powers and discretions hereunder in
good faith shall be binding upon everyone interested. The Trustees shall not be
liable for errors of judgment or mistakes of fact or law. The Trustees may take
advice of counsel or other experts with respect to the meaning and operation of
this Declaration of Trust, and shall be under no liability for any act or
omission in accordance with such advice or for failing to follow such advice.
Unless otherwise required by the By-Laws, the Trustees shall not be required to
give any bond as such, nor any surety if a bond is required.
Section 4. Termination of Trust
(a) This Trust shall continue without limitation of time but subject to
the provisions of sub-sections (b), (c) and (d) of this Section 4.
(b) The Trust may merge or consolidate with any other corporation,
association, trust or other organization or may sell, lease or exchange
all or substantially all of the Trust property, including its good
will, upon such terms and conditions and for such consideration when
and as authorized by a majority of the Trustees and by the vote of a
majority of the outstanding voting securities of the Trust; and any
such merger, consolidation, sale, lease or exchange shall be deemed for
all purposes to have been accomplished under and pursuant to the
statutes of the Commonwealth of Massachusetts.
(c) Subject to the approval thereof by a majority of the Trustees or by
vote of a majority of the outstanding voting securities of the Trust,
the Trustees may at any time sell and convert into money all the assets
of the Trust. Upon making provision for the payment of all outstanding
obligations, taxes and other liabilities, accrued or contingent, of the
Trust, the Trustees shall distribute the remaining assets of the Trust
ratably among the holders of the outstanding Shares, except as may be
otherwise provided by the Trustees with respect to any series of
Shares, and except that the Trustees shall distribute to holders of
Shares of a series only assets allocated to that series.
(d) Upon completion of the distribution of the remaining proceeds or
the remaining assets as provided in sub-sections (b) and (c), the Trust
shall terminate and the Trustees shall be discharged of any and all
further liabilities and duties hereunder and the right, title and
interest of all parties shall be cancelled and discharged.
Section 5. Filing of Copies, References, Headings and Counterparts The
original or a copy of this instrument, of any amendment hereto and of each
declaration of trust supplemental hereto, shall be kept at the office of the
Trust where it may be inspected by any Shareholder. A copy of this instrument,
of any amendment hereto, and of each supplemental declaration of trust shall be
filed by the Trustees with the Massachusetts Secretary of State and with any
other governmental office where such filing may from time to time be required.
Anyone dealing with the Trust may rely on a certificate by an officer of the
Trust as to whether or not any such amendments or supplemental declarations of
trust have been made and as to any matters in connection with the Trust
hereunder, and with the same effect as if it were the original, may rely on a
copy certified by a Trustee or an officer of the Trust to be a copy of this
instrument or of any such amendment hereto or supplemental declaration of trust.
In this instrument or in any such amendment or supplemental declaration of
trust, references to this instrument, and all expressions such as "herein",
"hereof" and "hereunder", shall be deemed to refer to this instrument as amended
or affected by any such supplemental declaration of trust. Headings are placed
herein for convenience of reference only and in case of any conflict, the text
of this instrument, rather than the headings, shall control. This instrument may
be executed in any number of counterparts each of which shall be deemed an
original, but such counterparts shall constitute one instrument.
Section 6. Applicable Law The Trust set forth in this instrument is
made in the Commonwealth of Massachusetts, and it is created under and is to be
governed by and construed and administered according to the laws of said
Commonwealth. The Trust shall be of the type commonly called a Massachusetts
business trust, and without limiting the provisions hereof, the Trust may
exercise all powers which are ordinarily exercised by such a trust.
Section 7. Amendments The execution of an instrument setting forth the
establishment and designation and the relative rights of any series of Shares in
accordance with Section 2 of Article VI hereof shall, without any authorization,
consent or vote of the Shareholders, effect an amendment of this Declaration.
Except as otherwise provided in this Section 7, if authorized by vote of a
majority of the Trustees and by a vote of a majority of the outstanding voting
securities of the Trust affected by the amendment (which Shares shall, unless
otherwise provided by vote of a majority of the Trustees, vote together on such
amendment as a single class), or by any larger vote which may be required by
applicable law or this Declaration of Trust in any particular case, the Trustees
may amend or otherwise supplement this Declaration. The Trustees may also amend
this Declaration without the vote or consent of Shareholders to change the name
of the Trust or to make such other changes as do not have a materially adverse
effect on the rights or interests of Shareholders hereunder or if they deem it
necessary to conform this Declaration to the requirements of applicable Federal
laws or regulations or the requirements of the regulated investment company
provisions of the Internal Revenue Code, but the Trustees shall not be liable
for failing so to do. Copies of any amendment or of the supplemental Declaration
of Trust shall be filed as specified in Section 5 of this Article XIV.
Section 8. Definition The term "vote of a majority of the outstanding
voting securities", when used herein, shall have the meaning specified in the
1940 Act as now in effect or as hereafter amended.
Nothing contained in this Declaration shall permit the amendment of
this Declaration to impair the exemption from personal liability of the
Shareholders, Trustees, officers, employees and agents of the Trust or to permit
assessments upon Shareholders.
Notwithstanding any other provision hereof, until such time as a
Registration Statement under the Securities Act of 1933, as amended, covering
the first public offering of securities of the Trust shall have become
effective, this Declaration may be terminated or amended in any respect by the
affirmative vote of a majority of the Trustees or by an instrument signed by a
majority of the Trustees.
IN WITNESS WHEREOF, the undersigned have executed this instrument this
25th day of May, 1989.
/s/ James B. Hawkes /s/ John L. Thorndike
------------------- ---------------------
James B. Hawkes John L. Thorndike
<PAGE>
THE COMMONWEALTH OF MASSACHUSETTS
May 25, 1989
Suffolk, ss. Boston, Massachusetts
Then personally appeared the above named James B. Hawkes and John L.
Thorndike, being all of the Trustees then in office, who severally acknowledged
the foregoing instrument to be their free act and deed.
Before me,
/s/ Ruth E. McDonald
Notary Public
My commission expires: June 4, 1993.
<PAGE>
The Address of the Trust and Trustees is:
24 Federal Street
Boston, Massachusetts 02110
EXHIBIT 99.1(b)
EATON VANCE GROWTH TRUST
(formerly called Eaton Vance Growth Fund)
AMENDMENT TO DECLARATION OF TRUST
August 18, 1992
AMENDMENT, made August 18, 1992, to the Declaration of Trust made May
25, 1989 (hereinafter called the "Declaration") of Eaton Vance Growth Fund, a
Massachusetts business trust (hereinafter called the "Trust"), by the
undersigned being at least a majority of the Trustees of the Trust in office on
August 18, 1992.
WHEREAS, Section 7 of Article XIV of the Declaration empowers the
Trustees of the Trust to amend the Declaration without the vote or consent of
Shareholders to change the name of the Trust;
WHEREAS, the Trustees of the Trust have deemed it desirable to amend
the Declaration in the following manner to change the name of the Trust, and a
majority of the Trustees are empowered to make, execute and file this Amendment
to the Declaration;
NOW, THEREFORE, the undersigned Trustees do hereby amend the
Declaration in the following manner:
1. The caption at the head of the Declaration is hereby amended to read
as follows:
EATON VANCE GROWTH TRUST
2. Article I of the Declaration is hereby amended to read as follows:
ARTICLE I
NAME
This Trust shall be known as Eaton Vance Growth Trust.
<PAGE>
IN WITNESS WHEREOF, the undersigned Trustees have executed this
instrument this 18th day of August, 1992.
/s/ Landon T. Clay /s/ Samuel L. Hayes, III
----------------- ------------------------
Landon T. Clay Samuel L. Hayes, III
/s/ Donald R. Dwight /s/ Norton H. Reamer
------------------- ------------------------
Donald R. Dwight Norton H. Reamer
/s/ James B. Hawkes /s/ John L. Thorndike
------------------- ------------------------
James B. Hawkes John L. Thorndike
-----------------------
Jack L. Treynor
EXHIBIT 99.1(c)
EATON VANCE GROWTH TRUST
Amendment and Restatement
of
Establishment and Designation of Series of Shares
of Beneficial Interest, Without Par Value
(as amended and restated June 19, 1995)
WHEREAS, the Trustees of Eaton Vance Growth Trust, a Massachusetts
business trust (the "Trust"), have previously designated separate series (or
"Funds"); and
WHEREAS, the Trustees now desire to further redesignate the series or
Funds pursuant to Section 2 of Article VI of the Trust's Amended and Restated
Declaration of Trust dated May 25, 1989, as further amended August 18, 1992 (the
"Declaration of Trust");
NOW, THEREFORE, the undersigned, being at least a majority of the duly
elected and qualified Trustees presently in office of the Trust, hereby divide
the shares of beneficial interest of the Trust into nine separate series
("Funds"), each Fund to have the following special and relative rights:
1. The Funds shall be designated as follows:
EV Marathon Information Age Fund
EV Traditional Information Age Fund
EV Marathon Gold & Natural Resources Fund
EV Classic Greater China Growth Fund
EV Marathon Greater China Growth Fund
EV Traditional Greater China Growth Fund
EV Classic Growth Fund
EV Marathon Growth Fund
EV Traditional Growth Fund
2. Each Fund shall be authorized to invest in cash, securities,
instruments and other property as from time to time described in the Trust's
then currently effective registration statements under the Securities Act of
1933 and the Investment Company Act of 1940. Each share of beneficial interest
of each Fund ("share") shall be redeemable, shall be entitled to one vote (or
fraction thereof in respect of a fractional share) on matters on which shares of
that Fund shall be entitled to vote and shall represent a pro rata beneficial
interest in the assets allocated to that Fund, all as provided in the
Declaration of Trust. The proceeds of sales of shares of each Fund, together
with any income and gain thereon, less any diminution or expenses thereof, shall
irrevocably belong to such Fund, unless otherwise required by law. Each share of
a Fund shall be entitled to receive its pro rata share of net assets of that
Fund upon liquidation of that Fund.
3. Shareholders of each Fund shall vote separately as a class to the
extent provided in Rule 18f-2, as from time to time in effect, under the
Investment Company Act of 1940.
4. The assets and liabilities of the Trust shall be allocated among the
above-referenced Funds as set forth in Section 2 of Article VI of the
Declaration of Trust, except as provided below:
(a) Costs incurred by each Fund in connection with its organization and
start-up, including Federal and state registration and qualification fees and
expenses of the initial public offering of such Fund's shares, shall (if
applicable) be borne by such Fund and deferred and amortized over the five year
period beginning on the date that such Fund commences operations.
(b) Reimbursement required under any expense limitation applicable to
the Trust shall be allocated among those Funds whose expense ratios exceed such
limitation on the basis of the relative expense ratios of such Funds.
(c) The liabilities, expenses, costs, charges and reserves of the Trust
(other than the management and investment advisory fees or the organizational
expenses paid by the Trust) which are not readily identifiable as belonging to
any particular Fund shall be allocated among the Funds on an equitable basis as
determined by the Trustees.
5. The Trustees (including any successor Trustees) shall have the right
at any time and from time to time to reallocate assets and expenses or to change
the designation of any Fund now or hereafter created, or to otherwise change the
special and relative rights of any such Fund, and to terminate any Fund or add
additional Funds as provided in the Declaration of Trust.
6. Any Fund may merge or consolidate with any other corporation,
association, trust or other organization or may sell, lease or exchange all or
substantially all of its property, including its good will, upon such terms and
conditions and for such consideration when and as authorized by the Trustees;
and any such merger, consolidation, sale, lease or exchange shall be deemed for
all purposes to have been accomplished under and pursuant to the statutes of the
Commonwealth of Massachusetts. The Trustees may also at any time sell and
convert into money all the assets of any Fund. Upon making provision for the
payment of all outstanding obligations, taxes and other liabilities, accrued or
contingent, of such Fund, the Trustees shall distribute the remaining assets of
such Fund ratably among the holders of the outstanding shares. Upon completion
of the distribution of the remaining proceeds or the remaining assets as
provided in this paragraph 6, the Fund shall terminate and the Trustees shall be
discharged of any and all further liabilities and duties hereunder with respect
to such Fund and the right, title and interest of all parties with respect to
such Fund shall be cancelled and discharged.
7. It is anticipated that the Declaration of Trust may be revised to
authorize the Trustees to divide each Fund and any other series of shares into
two or more classes and to fix and determine the relative rights and preferences
as between, and all provisions applicable to, each of the different classes so
established and designated by the Trustees. The establishment and designation of
any class of any Fund or other series of shares shall be effective upon the
execution by a majority of the then Trustees of an instrument setting forth such
establishment and designation and the relative rights and preferences, and
provisions applicable to, such class, or as otherwise provided in such
instrument.
Dated: June 19, 1995
/s/ Landon T. Clay /s/ Samuel L. Hayes III
------------------- ------------------------
Landon T. Clay Samuel L. Hayes, III
/s/ Donald R. Dwight /s/ Norton H. Reamer
------------------- ------------------------
Donald R. Dwight Norton H. Reamer
/s/ James B. Hawkes /s/ John L. Thorndike
------------------- ------------------------
James B. Hawkes John L. Thorndike
/s/ Jack L. Treynor
------------------------
Jack L. Treynor
EXHIBIT 99.2(a)
BY-LAWS
OF
EATON VANCE GROWTH FUND
ARTICLE I
The Trustees
SECTION 1. Election and Term of Office. The Trustees named in the Preamble of
the Declaration of Trust dated May 25, 1989, as from time to time amended (the
"Declaration of Trust"), and any additional Trustees appointed pursuant to
Section 4 of this Article I, shall serve as Trustees during the lifetime of the
Trust, except as otherwise provided below.
SECTION 2. Number of Trustees. The number of Trustees shall be fixed by the
Trustees, provided, however, that such number shall at no time exceed eighteen.
SECTION 3. Resignation and Removal. Any Trustee may resign his trust by written
instrument signed by him and delivered to the other Trustees, which shall take
effect upon such delivery or upon such later date as is specified therein. Any
Trustee who requests in writing to be retired or who has become incapacitated by
illness or injury may be retired by written instruments signed by a majority of
the other Trustees, specifying the date of his retirement. Any Trustee may be
removed at any time by written instrument, signed by at least two-thirds of the
number of Trustees prior to such removal, specifying the date when such removal
shall become effective.
No natural person shall serve as a Trustee of the Trust after the
holders of record of not less than two-thirds of the outstanding shares of
beneficial interest of the Trust (the "shares") have declared that he be removed
from that office by a declaration in writing signed by such holders and filed
with the Custodian of the assets of the Trust or by votes cast by such holders
in person or by proxy at a meeting called for the purpose. Solicitation of such
a declaration shall be deemed a solicitation of a proxy within the meaning of
Section 20(a) of the Investment Company Act of 1940 (the "Act").
The Trustees of the Trust shall promptly call a meeting of the
shareholders for the purpose of voting upon a question of removal of any such
Trustee or Trustees when requested in writing so to do by the record holders of
not less than 10 per centum of the outstanding shares.
Whenever ten or more shareholders of record of the Trust who have been
such for at least six months preceding the date of application, and who hold in
the aggregate either shares having a net asset value of at least $25,000 or at
least 1 per centum of the outstanding shares, whichever is less, shall apply to
the Trustees in writing, stating that they wish to communicate with other
shareholders with a view to obtaining signatures to a request for a meeting of
shareholders pursuant to this Section 3 and accompanied by a form of
communication and request which they wish to transmit, the Trustees shall within
five business days after receipt of such application either
(1) afford to such applicants access to a list of the names and
addresses of all shareholders as recorded on the books of the Trust; or
(2) inform such applicants as to the approximate number of shareholders
of record, and the approximate cost of mailing to them the proposed
communication and form of request.
If the Trustees elect to follow the course specified in subparagraph
(2) above of this Section 3, the Trustees, upon the written request of such
applicants, accompanied by a tender of the material to be mailed and of the
reasonable expenses of mailing, shall, with reasonable promptness, mail such
material to all shareholders of record at their addresses as recorded on the
books, unless within five business days after such tender the Trustees shall
mail to such applicants and file with the Securities and Exchange Commission
(the "Commission"), together with a copy of the material to be mailed, a written
statement signed by at least a majority of the Trustees to the effect that in
their opinion either such material contains untrue statements of fact or omits
to state facts necessary to make the statements contained therein not
misleading, or would be in violation of applicable law, and specifying the basis
of such opinion.
After the Commission has had an opportunity for hearing upon the
objections specified in the written statement so filed by the Trustees, the
Trustees or such applicants may demand that the Commission enter an order either
sustaining one or more of such objections or refusing to sustain any of such
objections. If the Commission shall enter an order refusing to sustain any of
such objections, or if, after the entry of an order sustaining one or more of
such objections, the Commission shall find, after notice and opportunity for
hearing, that all objections so sustained have been met, and shall enter an
order so declaring, the Trustees shall mail copies of such material to all
shareholders with reasonable promptness after the entry of such order and the
renewal of such tender.
Until such provisions become null, void, inoperative and removed from
these By-Laws pursuant to the next sentence, the provisions of all but the first
paragraph of this Section 3 may not be amended or repealed without the vote of a
majority of the Trustees and a majority of the outstanding shares of the Trust.
These same provisions shall be deemed null, void, inoperative and removed from
these By-Laws upon the effectiveness of any amendment to the Act which
eliminates them from Section 16 of the Act or the effectiveness of any successor
Federal law governing the operation of the Trust which does not contain such
provisions.
SECTION 4. Vacancies. In case of the declination, death, resignation,
retirement, removal, or inability of any of the Trustees, or in case a vacancy
shall, by reason of an increase in number, or for any other reason, exist, the
remaining Trustees shall fill such vacancy by appointing such other person as
they in their discretion shall see fit. Such appointment shall be evidenced by a
written instrument signed by a majority of the Trustees in office whereupon the
appointment shall take effect. Within three months of such appointment the
Trustees shall cause notice of such appointment to be mailed to each shareholder
at his address as recorded on the books of the Trustees. An appointment of a
Trustee may be made by the Trustees then in office and notice thereof mailed to
shareholders as aforesaid in anticipation of a vacancy to occur by reason of
retirement, resignation or increase in number of Trustees effective at a later
date, provided that said appointment shall become effective only at or after the
effective date of said retirement, resignation or increase in number of
Trustees. As soon as any Trustee so appointed shall have accepted this trust,
the trust estate shall vest in the new Trustee or Trustees, together with the
continuing Trustees, without any further act or conveyance, and he shall be
deemed a Trustee hereunder and under the Declaration of Trust. The power of
appointment is subject to the provisions of Section 16(a) of the Act.
Whenever a vacancy among the Trustees shall occur, until such vacancy
is filled, or while any Trustee is absent from the Commonwealth of Massachusetts
or, if not a domiciliary of Massachusetts, is absent from his state of domicile,
or is physically or mentally incapacitated by reason of disease or otherwise,
the other Trustees shall have all the powers hereunder and the certificate of
the other Trustees of such vacancy, absence or incapacity shall be conclusive,
provided, however, that no vacancy shall remain unfilled for a period longer
than six calendar months.
SECTION 5. Temporary Absence of Trustee. Any Trustee may, by power of attorney,
delegate his power for a period not exceeding six months at any one time to any
other Trustee or Trustees, provided that in no case shall less than two Trustees
personally exercise the other powers hereunder except as herein otherwise
expressly provided.
SECTION 6. Effect of Death, Resignation, Removal, Etc. of a Trustee. The death,
declination, resignation, retirement, removal, or incapacity of the Trustees, or
any one of them, shall not operate to annul the Trust or to revoke any existing
agency created pursuant to the terms of the Declaration of Trust or these
By-Laws.
ARTICLE II
Officers and Their Election
SECTION 1. Officers. The officers of the Trust shall be a President, a
Treasurer, a Secretary, and such other officers or agents as the Trustees may
from time to time elect. It shall not be necessary for any Trustee or other
officer to be a holder of shares in the Trust.
SECTION 2. Election of Officers. The Treasurer and Secretary shall be chosen
annually by the Trustees. The President shall be chosen annually by and from the
Trustees.
Except for the offices of President and Secretary, two or more offices
may be held by a single person. The officers shall hold office until their
successors are chosen and qualified.
SECTION 3. Resignations and Removals. Any officer of the Trust may resign by
filing a written resignation with the President or with the Trustees or with the
Secretary, which shall take effect on being so filed or at such time as may
otherwise be specified therein. The Trustees may at any meeting remove an
officer.
ARTICLE III
Powers and Duties of Trustees and Officers
SECTION 1. Trustees. The business and affairs of the Trust shall be managed by
the Trustees, and they shall have all powers necessary and desirable to carry
out that responsibility, so far as such powers are not inconsistent with the
laws of the Commonwealth of Massachusetts, the Declaration of Trust, or these
By-Laws.
SECTION 2. Executive and Other Committees. The Trustees may elect from their own
number an executive committee to consist of not less than three nor more than
five members, which shall have the power and duty to conduct the current and
ordinary business of the Trust, including the purchase and sale of securities,
while the Trustees are not in session, and such other powers and duties as the
Trustees may from time to time delegate to such committee. The Trustees may also
elect from their own number other committees from time to time, the number
composing such committees and the powers conferred upon the same to be
determined by the Trustees.
SECTION 3. Chairman of the Trustees. The Trustees may, but need not, appoint
from among their number a Chairman. When present he shall preside at the
meetings of the shareholders and of the Trustees. He may call meetings of the
Trustees and of any committee thereof whenever he deems it necessary. He shall
be an executive officer of this Trust and shall have, with the President,
general supervision over the business and policies of this Trust, subject to the
limitations imposed upon the President, as provided in Section 4 of this Article
III.
SECTION 4. President. In the absence of the Chairman of the Trustees, the
President shall preside at all meetings of the shareholders. Subject to the
Trustees and to any committees of the Trustees, within their respective spheres,
as provided by the Trustees, he shall at all times exercise a general
supervision and direction over the affairs of the Trust. He shall have the power
to employ attorneys and counsel for the Trust and to employ such subordinate
officers, agents, clerks and employees as he may find necessary to transact the
business of the Trust. He shall also have the power to grant, issue, execute or
sign such powers of attorney, proxies or other documents as may be deemed
advisable or necessary in furtherance of the interests of the Trust. The
President shall have such other powers and duties as, from time to time, may be
conferred upon or assigned to him by the Trustees.
SECTION 5. Treasurer. The Treasurer shall be the principal financial and
accounting officer of the Trust. He shall deliver all funds and securities of
the Trust which may come into his hands to such bank or trust company as the
Trustees shall employ as custodian in accordance with Article VII of the
Declaration of Trust. He shall make annual reports in writing of the business
conditions of the Trust, which reports shall be preserved upon its records, and
he shall furnish such other reports regarding the business and condition as the
Trustees may from time to time require. The Treasurer shall perform such duties
additional to foregoing as the Trustees may from time to time designate.
SECTION 6. Secretary. The Secretary shall record in books kept for the purpose
all votes and proceedings of the Trustees and the shareholders at their
respective meetings. He shall have custody of the seal, if any, of the Trust and
shall perform such duties additional to the foregoing as the Trustees may from
time to time designate.
SECTION 7. Other Officers. Other officers elected by the Trustees shall perform
such duties as the Trustees may from time to time designate.
SECTION 8. Compensation. The Trustees and officers of the Trust may receive such
reasonable compensation from the Trust for the performance of their duties as
the Trustees may from time to time determine.
ARTICLE IV
Meetings of Shareholders
SECTION 1. Meetings. Meetings of the shareholders may be called at any time by
the President, and shall be called by the President or the Secretary at the
request, in writing or by resolution, of a majority of the Trustees, or at the
written request of the holder or holders of ten percent (10%) or more of the
total number of shares of the then issued and outstanding shares of the Trust
entitled to vote at such meeting. Any such request shall state the purposes of
the proposed meeting.
SECTION 2. Place of Meetings. Meetings of the shareholders shall be held at the
principal place of business of the Trust in Boston, Massachusetts, unless a
different place within the United States is designated by the Trustees and
stated as specified in the respective notices or waivers of notice with respect
thereto.
SECTION 3. Notice of Meetings. Notice of all meetings of the shareholders,
stating the time, place and the purposes for which the meetings are called,
shall be given by the Secretary to each shareholder entitled to vote thereat,
and to each shareholder who under the By-Laws is entitled to such notice, by
mailing the same postage paid, addressed to him at his address as it appears
upon the books of the Trust, at least seven (7) days before the time fixed for
the meeting, and the person giving such notice shall make an affidavit with
respect thereto. If any shareholder shall have failed to inform the Trust of his
post office address, no notice need be sent to him. No notice need be given to
any shareholder if a written waiver of notice, executed before or after the
meeting by the shareholder or his attorney thereunto authorized, is filed with
the records of the meeting.
SECTION 4. Quorum. Except as otherwise provided by law, to constitute a quorum
for the transaction of any business at any meeting of shareholders, there must
be present, in person or by proxy, holders of a majority of the total number of
shares of the then issued and outstanding shares of the Trust entitled to vote
at such meeting; provided that if a series of shares is entitled to vote as a
separate series on any matter, then in the case of that matter a quorum shall
consist of the holders of a majority of the total number of shares of the then
issued and outstanding shares of that series entitled to vote at the meeting.
Shares owned directly or indirectly by the Trust, if any, shall not be deemed
outstanding for this purpose.
If a quorum, as above defined, shall not be present for the purpose of
any vote that may properly come before any meeting of shareholders at the time
and place of any meeting, the shareholders present in person or by proxy and
entitled to vote at such meeting on such matter holding a majority of the shares
present and entitled to vote on such matter may by vote adjourn the meeting from
time to time to be held at the same place without further notice than by
announcement to be given at the meeting until a quorum, as above defined,
entitled to vote on such matter, shall be present, whereupon any such matter may
be voted upon at the meeting as though held when originally convened.
SECTION 5. Voting. At each meeting of the shareholders every shareholder of the
Trust who shall be entitled to one (1) vote in person or by proxy for each of
the then issued and outstanding shares of the Trust then having voting power in
respect of the matter upon which the vote is to be taken, standing in his name
on the books of the Trust at the time of the closing of the transfer books for
the meeting, or, if the books be not closed for any meeting, on the record date
fixed as provided in Section 4 of Article VI of these By-Laws for determining
the shareholders entitled to vote at such meeting, or if the books be not closed
and no record date be fixed, at the time of the meeting. The record holder of a
fraction of a share shall be entitled in like manner to a corresponding fraction
of a vote. Notwithstanding the foregoing, the Trustees may, in conjunction with
the establishment of any series of shares, establish conditions under which the
several series shall have separate voting rights or no voting rights.
All elections of Trustees shall be conducted in any manner approved at
the meeting of the shareholders at which said election is held, and shall be by
ballot if so requested by any shareholder entitled to vote thereon. The persons
receiving the greatest number of votes shall be deemed and declared elected.
Except as otherwise required by law or by the Declaration of Trust or by these
By-Laws, all matters shall be decided by a majority of the votes cast, as
hereinabove provided, by persons entitled to vote thereon. With respect to the
submission of a management or investment advisory contract or a change in
investment policy to the shareholders for any shareholder approval required by
the Act, such matter shall be deemed to have been effectively acted upon with
respect to any series of shares if the holders of the lesser of
(i) 67 per centum or more of the shares of that
series present or represented at the meeting if the
holders of more than 50 per centum of the outstanding
shares of that series are present or represented by
proxy at the meeting or
(ii) more than 50 per centum of the outstanding shares
of that series
vote for the approval of such matter, notwithstanding (a) that such matter has
not been approved by the holders of a majority of the outstanding voting
securities of any other series affected by such matter (as described in rule
18f-2 under the Act) or (b) that such matter has not been approved by the vote
of a majority of the outstanding voting securities of the Trust (as defined in
the Act).
SECTION 6. Proxies. Any shareholder entitled to vote upon any matter at any
meeting of the shareholders may so vote by proxy. A proxy may be in writing
subscribed by the shareholder or by his duly authorized representative, agent or
attorney. A written proxy shall be dated; if an undated written proxy solicited
by the management of the Trust is delivered to the Trust or its agent or
representative, such proxy shall be deemed dated by the shareholder on the date
of its receipt by the Trust or its agent or representative. A written proxy need
not be sealed, witnessed or acknowledged. The shareholder may also authorized
and empower the persons named as proxies, representatives, agents or attorneys
(or their duly appointed substitutes), or any one of them on any form of proxy
solicited by the management of the Trust to vote all shares of the Trust which
he is entitled to vote upon any matter at any meeting of the shareholders by
recording his voting instructions on any recording device maintained for the
purpose by the Trust or its agent or representative; such recorded instructions
shall be deemed to constitute a written proxy subscribed by the shareholder and
delivered by him to the Trust or its agent or representative and shall be deemed
to be dated as of the date such instructions were transmitted, and the
shareholder shall be deemed to have approved and ratified all actions taken by
such persons in accordance with the voting instructions so recorded. No proxy
which is dated (or deemed dated) more than six months before the initial session
of the meeting shall be accepted and no such proxy shall be valid after the
final adjournment of the meeting. A proxy solicited by the management of the
Trust purporting to be executed or transmitted by or on behalf of a shareholder
shall be valid unless challenged at or prior to exercise of the proxy, and the
burden of proving any invalidity shall be borne by the person asserting the
challenge. A proxy solicited by the management of the Trust with respect to
shares held in the name of two or more persons shall be valid if executed or
transmitted by one of them unless at or prior to its exercise the Trust receives
a specific written notice to the contrary from any one of them.
SECTION 7. Consents. Any action which may be taken by shareholders may be taken
without a meeting if a majority of shareholders entitled to vote on the matter
(or such larger proportion thereof as shall be required by law, the Declaration
of Trust or these By-Laws for approval of such matter) consent to the action in
writing and the written consents are filed with the records of the meetings of
shareholders. Such contents shall be treated for all purposes as a vote taken at
a meeting of shareholders.
ARTICLE V
Trustees Meetings
SECTION 1. Meetings. The Trustees may in their discretion provide for regular or
stated meetings of the Trustees. Meetings of the Trustees other than regular or
stated meetings shall be held whenever called by the Chairman, President or by
any other Trustee at the time being in office. Any or all of the Trustees may
participate in a meeting by means of a conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other at the same time, and participation by such means
shall constitute presence in person at a meeting.
SECTION 2. Notices. Notice of regular or stated meetings need not be given.
Notice of the time and place of each meeting other than regular or stated
meetings shall be given by the Secretary or by the Trustee calling the meeting
and shall be mailed to each Trustee at least two (2) days before the meeting, or
shall be telegraphed, cabled, or wirelessed to each Trustee at his business
address or personally delivered to him at least one (1) day before the meeting.
Such notice may, however, be waived by all the Trustees. Notice of a meeting
need not be given to any Trustee if a written waiver of notice, executed by him
before or after the meeting, is filed with the records of the meeting, or to any
Trustee who attends the meeting without protesting prior thereto or at its
commencement the lack of notice to him. A notice or waiver of notice need not
specify the purpose of any special meeting.
SECTION 3. Consents. Any action required or permitted to be taken at any meeting
of the Trustees may be taken by the Trustees without a meeting if a written
consent thereto is signed by all the Trustees and filed with the records of the
Trustees' meetings. Such consent may be treated as a vote at a meeting for all
purposes.
SECTION 4. Place of Meetings. The Trustees may hold their meetings within or
without the Commonwealth of Massachusetts.
SECTION 5. Quorum and Manner of Acting. A majority of the Trustees in office
shall be present in person at any regular stated or special meeting of the
Trustees in order to constitute a quorum for the transaction of business at such
meeting and (except as otherwise required by the Declaration of Trust, by these
By-Laws or by statute) the act of a majority of the Trustees present at any such
meeting, at which a quorum is present, shall be the act of the Trustees. In the
absence of quorum, a majority of the Trustees present may adjourn the meeting
from time to time until a quorum shall be present. Notice of any adjourned
meeting need not be given.
ARTICLE VI
Shares of Beneficial Interest
SECTION 1. Certificates for Shares of Beneficial Interest. Certificates for
shares of beneficial interest of any series of shares of the Trust, if issued,
shall be in such form as shall be approved by the Trustees. They shall be signed
by, or in the name of, the Trust by the President and by the Treasurer and may,
but need not be, sealed with seal of the Trust; provided, however, that where
such certificate is signed by a transfer agent or a transfer clerk acting on
behalf of the Trust or a registrar other than a Trustee, officer or employee of
the Trust, the signature of the President or Treasurer and the seal may be
facsimile. In case any officer or officers who shall have signed, or whose
facsimile signature or signatures shall have been used on any such certificate
or certificates, shall cease to be such officer or officers of the Trust whether
because of death, resignation or otherwise, before such certificate or
certificates shall have been delivered by the Trust, such certificate or
certificates may nevertheless be adopted by the Trust and be issued and
delivered as though the person or persons who signed such certificate or
certificates or whose facsimile signatures shall have been used thereon had not
ceased to be such officer or officers of the Trust.
SECTION 2. Transfer of Shares. Transfers of shares of beneficial interest of any
series of shares of the Trust shall be made only on the books of the Trust by
the owner thereof or by his attorney thereunto authorized by a power of attorney
duly executed and filed with the Secretary or a transfer agent, and only upon
the surrender of any certificate or certificates for such shares. The Trust
shall not impose any restrictions upon the transfer of the shares of any series
of the Trust, but this requirement shall not prevent the charging of customary
transfer agent fees.
SECTION 3. Transfer Agent and Registrar; Regulations. The Trust shall, if and
whenever the Trustees shall so determine, maintain one or more transfer offices
or agencies, each in the charge of a transfer agent designated by the Trustees,
where the shares of beneficial interest of the Trust shall be directly
transferable. The Trust shall, if and whenever the Trustees shall so determine,
maintain one or more registry offices, each in the charge of a registrar
designated by the Trustees, where such shares shall be registered, and no
certificate for shares of the Trust in respect of which a transfer agent and/or
registrar shall have been designated shall be valid unless countersigned by such
transfer agent and/or registered by such registrar. The principal transfer agent
may be located within or without the Commonwealth of Massachusetts and shall
have charge of the share transfer books, lists and records, which shall be kept
within or without Massachusetts in an office which shall be deemed to be the
share transfer office of the Trust. The Trustees may also make such additional
rules and regulations as it may deem expedient concerning the issue, transfer
and redemption of certificates for shares of the Trust.
SECTION 4. Closing of Transfer Books and Fixing Record Date. The Trustees may
fix in advance a time which shall be not more than sixty (60) days before the
date of any meeting of shareholders, or the date for the payment of any dividend
or the making of any distribution to shareholders or the last day on which the
consent or dissent of shareholders may be effectively expressed for any purpose,
as the record date for determining the shareholders having the right to notice
of and to vote at such meeting, and any adjournment thereof, or the right to
receive such dividend or distribution or the right to give such consent or
dissent, and in such case only shareholders of record on such record date shall
have such right, notwithstanding any transfer of shares on the books of the
Trust after the record date. The Trustees may, without fixing such record date,
close the transfer books for all or any part of such period for any of the
foregoing purposes.
SECTION 5. Lost, Destroyed or Mutilated Certificates. The holder of any shares
of a series of the Trust shall immediately notify the Trust of any loss,
destruction or mutilation of the certificate therefor, and the Trustees may, in
their discretion, cause a new certificate or certificates to be issued to him,
in case of mutilation of the certificate, upon the surrender of the mutilated
certificate, or, in case of loss or destruction of the certificate, upon
satisfactory proof of such loss or destruction and, in any case, if the Trustees
shall so determine, upon the delivery of a bond in such form and in such sum and
with such surety or sureties as the Trustees may direct, to indemnify the Trust
against any claim that may be made against it on account of the alleged loss or
destruction of any such certificate.
SECTION 6. Record Owner of Shares. The Trust shall be entitled to treat the
person in whose name any share of a series of the Trust is registered on the
books of the Trust as the owner thereof, and shall not be bound to recognize any
equitable or other claim to or interest in such share or shares on the part of
any other person.
ARTICLE VII
Fiscal Year
The fiscal year of the Trust shall end on August 31, of each year,
provided, however, that the Trustees may from time to time change the fiscal
year.
ARTICLE VIII
Seal
The Trustees may adopt a seal of the Trust which shall be in such form
and shall have such inscription thereon as the Trustees may from time to time
prescribe.
ARTICLE IX
Inspection of Books
The Trustees shall from time to time determine whether and to what
extent, and at what times and places, and under what conditions and regulations
the accounts and books of the Trust or any of them shall be open to the
inspection of the shareholders; and no shareholder shall have any right of
inspecting any account or book or document of the Trust except as conferred by
law or authorized by the Trustees or by resolution of the shareholders.
ARTICLE X
Custodian
The following provisions shall apply to the employment of the Custodian
pursuant to Article VII of the Declaration of Trust and to any contract entered
into with the Custodian so employed:
(a) The Trustees shall cause to be delivered to the Custodian all
securities owned by the Trust or to which it may become
entitled, and shall order the same to be delivered by the
Custodian only in completion of a sale, exchange, transfer,
pledge, loan, or other disposition thereof, against receipt by
the Custodian of the consideration therefor or a certificate
of deposit or a receipt of an issuer or of its transfer agent,
or to a securities depository as defined in Rule 17f-4 under
the Act, all as the Trustees may generally or from time to
time require or approve, or to a successor Custodian; and the
Trustees shall cause all funds owned by the Trust or to which
it may become entitled to be paid to the Custodian, and shall
order the same disbursed only for investment against delivery
of the securities acquired, or in payment of expenses,
including management compensation, and liabilities of the
Trust, including distributions to shareholders, or to a
successor Custodian.
(b) In case of the resignation, removal or inability to serve of
any such Custodian, the Trustees shall promptly appoint
another bank or trust company meeting the requirements of said
Article VII as successor Custodian. The agreement with the
Custodian shall provide that the retiring Custodian shall,
upon receipt of notice of such appointment, deliver the funds
and property of the Trust in its possession to and only to
such successor, and that pending appointment of a successor
Custodian, or a vote of the shareholders to function without a
Custodian, the Custodian shall not deliver funds and property
of the Trust to the Trustees, but may deliver them to a bank
or trust company doing business in Boston, Massachusetts, of
its own selection, having an aggregate capital, surplus and
undivided profits, as shown by its last published report, of
not less than $2,000,000, as the property of the Trust to be
held under terms similar to those on which they were held by
the retiring Custodian.
ARTICLE XI
Limitation of Liability and Indemnification
SECTION 1. Limitation of Liability. Provided they have acted in good faith in
the reasonable belief that their actions are in the best interests of the Trust,
the Trustees shall not be responsible for or liable in any event for neglect or
wrongdoing of them or any officer, agent, employee or investment adviser of the
Trust, but nothing contained in the Declaration of Trust or herein shall protect
any Trustee against any liability to the Trust or its shareholders to which he
would otherwise be subject by reason of willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of his
office.
SECTION 2. Indemnification of Trustees and Officers.
(A) Subject to the exceptions and limitations contained in Paragraph
(B) of this Section 2,
(1) every person who is, or has been, a Trustee or officer of the Trust
shall be indemnified by the Trust to the fullest extend permitted by law against
liability and against all expenses reasonably incurred or paid by him in
connection with any claim, action, suit or proceeding in which he becomes
involved as a party or otherwise by virtue of his being or having been a Trustee
or officer (or by virtue of his serving or having served at the request of the
Trust as a trustee, director, partner, officer, employee or agent of another
trust, corporation, partnership, joint venture or other enterprise) and against
amounts paid or incurred by him in the settlement thereof;
(2) the words "claim", "action", "suit", "proceeding" shall apply to
all claims, actions, suits or proceedings (civil, criminal, administrative,
investigative, legislative or other, including appeals), actual or threatened,
whether or not based on any act or omission antedating the organization of the
Trust; and the words "liability" and "expenses" shall include, without
limitation, attorneys' fees, costs, judgments, amounts paid in settlement,
fines, penalties, taxes and other liabilities.
(B) No indemnification shall be provided hereunder to a Trustee or
officer:
(1) against any liability to the Trust or its shareholders by reason of
willful misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of his office;
(2) with respect to any matter as to which he shall have been finally
adjudicated not to have acted in good faith in the reasonable belief that his
action was in the best interests of the Trust;
(3) in the event of a settlement involving a payment by the officer or
Trustee unless there has been a determination that such Trustee or officer did
not engage in willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of his office,
(a) by the court or other body approving the settlement; or
(b) by vote of a majority of the outstanding shares of the
Trust not including any shares owned by any affiliated person of the Trust; or
(c) by vote of a majority of those members of the Board of
Trustees of the Trust who are not themselves involved in the clam, action, suit
or proceeding, provided that a majority of the Board of Trustees consists of
members not so involved; or
(d) by written opinion of independent counsel,
provided, however, that any shareholder may, by appropriate legal proceedings,
challenge any such determination by the Board of Trustees, or by independent
counsel.
(C) The rights of indemnification herein provided may be insured
against by policies maintained by the Trust, shall be severable, shall not be
exclusive of or affect any other rights to which any Trustee or officer may now
or hereafter by entitled, shall continue as to a person who has ceased to be
such Trustee or officer and shall inure to the benefit of the heirs, executors
and administrators of such a person. Nothing contained herein shall affect any
rights to indemnification to which Trust personnel other than Trustees and
officers may be entitled by contract or otherwise under law.
(D) Expenses incurred with respect to any claim, action, suit or
proceeding of the character described in paragraph (A) of this Section 2 may be
advanced by the Trust prior to final disposition thereof upon receipt of an
undertaking by or on behalf of the recipient to repay such amount if it is
ultimately determined that he is not entitled to indemnification under this
Article XI.
(E) For the purposes of this Section 2, the Trustees and officers of
the Trust shall also mean the directors and officers of the Trust's predecessor
Eaton Vance Growth Fund, Inc.
SECTION 3. Indemnification of Shareholders. In case any shareholder or former
shareholder shall be held to be personally liable solely by reason of his being
or having been a shareholder and not because of his acts or omissions or for
some other reason, the shareholder or former shareholder (or his heirs,
executors, administrators or other legal representatives or, in the case of a
corporation or other entity, its corporate or other general successor) shall be
entitled out of the Trust estate to be held harmless from and indemnified
against all loss and expense arising from such liability. The Trust shall, upon
request by the shareholder, assume the defense of any claim made against any
shareholder for any act or obligation of the Trust and satisfy any judgment
thereon.
ARTICLE XII
Underwriting Arrangements
Any contract entered into for the sale of shares of the Trust pursuant
to Article VIII, Section 2 of the Declaration of Trust shall require the other
party thereto (hereinafter called the "underwriter") whether acting as principal
or as agent to use reasonable efforts, consistent with the other business of the
underwriter, to secure purchasers for the shares of the Trust.
The underwriter may be granted the right
(a) To purchase as principal, from the Trust, at not less
than net asset value per share, the shares needed,
but no more than the shares needed (except for
clerical errors and errors of transmission), to fill
unconditional orders for shares of the Trust received
by the underwriter.
(b) To purchase as principal, from shareholders of the
Trust at not less than net asset value per share
(minus any applicable sales charge payable upon
redemption or repurchase of shares) such shares as
may be presented to the Trust, or the transfer agent
of the Trust, for redemption and as may be determined
by the underwriter in its sole discretion.
(c) to resell any such shares purchased at not less than
net asset value per share (minus any applicable sales
charge payable upon redemption or repurchase of
shares).
ARTICLE XIII
Report to Shareholders
The Trustees shall at least semi-annually submit to the shareholders a
written financial report of the transactions of the Trust including financial
statements which shall at least annually be certified by independent public
accountants.
ARTICLE XIV
Certain Transactions
SECTION 1. Long and Short Positions. Except as hereinafter provided, no officer
or Trustee and no partner, officer, director or shareholder of the manager,
administrator or investment adviser of the Trust or of the underwriter of the
Trust, and no manager, administrator or investment adviser or underwriter of the
Trust, shall take long or short positions in the securities issued by the Trust.
(a) The foregoing provision shall not prevent the
underwriter from purchasing shares of the Trust from
the Trust if such purchases are limited (except for
reasonable allowances for clerical errors, delays and
errors of transmission and cancellation of orders) to
purchases for the purpose of filling orders for such
shares received by the underwriter, and provided that
orders to purchase from the Trust are entered with
the Trust or the Custodian promptly upon receipt by
the underwriter of purchase orders for such shares,
unless the underwriter is otherwise instructed by its
customer.
(b) The foregoing provision shall not prevent the
underwriter from purchasing shares of the Trust as
agent for the account of the Trust.
(c) The foregoing provision shall not prevent the
purchase from the Trust or from the underwriter of
shares issued by the Trust by any officer or Trustee
of the Trust or by any partner, officer, director or
shareholder of the manager or investment adviser of
the Trust at the price available to the public
generally at the moment of such purchase or, to the
extent that any such person is a shareholder, at the
price available to shareholders of the Trust
generally at the moment of such purchase, or as
described in the current Prospectus of the Trust.
SECTION 2. Loans of Trust Assets. The Trust shall not lend assets of the Trust
to any officer or Trustee of the Trust, or to any partner, officer, director or
shareholder of, or person financially interested in, the manager or investment
adviser of the Trust, or the underwriter of the Trust, or to the manager or
investment adviser of the Trust or to the underwriter of the Trust.
SECTION 3. Miscellaneous. The Trust shall not permit any officer or Trustee, or
any officer or director of the manager or investment adviser or underwriter of
the Trust, to deal for or on behalf of the Trust with himself as principal or
agent, or with any partnership, association or corporation in which he has a
financial interest; provided that the foregoing provisions shall not prevent (i)
officers and Trustees of the Trust from buying, holding or selling shares in the
Trust, or from being partners, officers or directors of or otherwise financially
interested in the manager or investment adviser or underwriter of the Trust;
(ii) purchases or sales of securities or other property by the Trust from or to
an affiliated person or to the manager or investment adviser or underwriter of
the Trust if such transaction is exempt from the applicable provisions of the
Act; (iii) purchases of investments from the portfolio of the Trust or sales of
investments owned by the Trust through a security dealer who is, or one or more
of whose partners, shareholders, officers or directors is, an officer or Trustee
of the Trust, if such transactions are handled in the capacity of broker only
and commissions charged do not exceed customary brokerage charges for such
services; (iv) employment of legal counsel, registrar, transfer agent, dividend
disbursing agent or custodian who is, or has a partner, shareholder, officer or
director who is, an officer or Trustee of the Trust if only customary fees are
charged for services to the Trust; (v) sharing statistical, research, legal and
management expenses and office hire and expenses with any other investment
company in which an officer or Trustee of the Trust is an officer,trustee or
director or otherwise financially interested; or (vi) the purchase for the
portfolio of the Trust of securities issued by an issuer having an officer,
director or security holder who is an officer, Trustee or director of the Trust
or of the manager or investment adviser of the Trust, unless such purchase would
violate the Trust's investment policies or restrictions.
References to the manager or investment adviser of the Trust contained
in this Article XIV shall also be deemed to refer to any sub-investment adviser
appointed in accordance with Article VIII, Section 1 of the Declaration of
Trust.
ARTICLE XV
Amendments
Except as provided in Section 3 of Article I of these By-Laws for the
portions of such Section 3 referred to therein, these By-Laws may be amended at
any meeting of the Trustees by a vote of a majority of the Trustees then in
office.
**********
EXHIBIT 99.2(b)
AMENDMENT TO
BY-LAWS
OF
EATON VANCE GROWTH TRUST
December 13, 1993
Pursuant to ARTICLE XV of the BY-LAWS of Eaton Vance Growth Trust, (the "Trust")
upon vote of a majority of the Trustees of the Trust SECTION 2. of ARTICLE II of
the BY-LAWS of the Trust was amended to read as follows:
SECTION 2. Election of Officers. The President, Treasurer and Secretary shall be
chosen annually by the Trustees.
Except for the offices of President and Secretary, two or more offices
may be held by a single person. The officers shall hold office until their
successors are chosen and qualified.
********************
EXHIBIT 99.(5)(a)
EATON VANCE GROWTH TRUST
INVESTMENT ADVISORY AGREEMENT
ON BEHALF OF EV MARATHON GOLD & NATURAL RESOURCES FUND
AGREEMENT made on the 15th day of August, 1995, by and between Eaton
Vance Growth Trust, a Massachusetts business trust (the "Trust") on behalf of EV
Marathon Gold & Natural Resources Fund (the "Fund"), and Eaton Vance Management,
a Massachusetts business trust (hereinafter sometimes called the "Adviser").
1. Duties of the Adviser. The Trust hereby employs the Adviser to act
as investment adviser for and to manage the investment and reinvestment of the
assets of the Fund and to administer its affairs, subject to the supervision of
the Board of Trustees of the Trust, for the period and on the terms set forth in
this Agreement.
The Adviser hereby accepts such employment, and undertakes to afford to
the Trust the advice and assistance of the Adviser's organization in the choice
of investments and in the purchase and sale of securities for the Fund and to
furnish for the use of the Fund office space and all necessary office
facilities, equipment and personnel for servicing the investments of the Fund.
The Adviser shall pay the salaries and fees of all officers and Trustees of
the Trust who are members of the Adviser's organization and of all personnel of
the Adviser performing services relating to research and investment activities.
The Adviser shall for all purposes herein be deemed to be an independent
contractor and shall, except otherwise expressly provided or authorized, have
no authority to act for or represent the Trust in any way or otherwise be
deemed an agent of the Trust.
The Adviser shall provide the Trust with such investment management and
supervision as the Trust may from time to time consider necessary for the proper
supervision of the Fund. As investment adviser to the Trust, the Adviser shall
furnish continuously an investment program and shall determine from time to time
what securities shall be purchased, sold or exchanged and what portion of the
Fund's assets shall be held uninvested, subject always to the applicable
restrictions of the Declaration of Trust, By-Laws and registration statement of
the Trust under the Investment Company Act of 1940, all as from time to time
amended. The Adviser is authorized, in its discretion and without prior
consultation with the Trust, to buy, sell, lend and otherwise trade in any and
all types of securities, commodities and investment instruments on behalf of the
Fund. Should the Trustees of the Trust at any time, however, make any specific
determination as to investment policy for the Fund and notify the Adviser
thereof in writing, the Adviser shall be bound by such determination for the
period, if any, specified in such notice or until similarly notified that such
determination has been revoked. The Adviser shall take, on behalf of the Trust,
all actions which it deems necessary or desirable to implement the investment
policies of the Trust and of the Fund.
The Adviser shall place all orders for the purchase or sale of
portfolio securities for the Fund's account with brokers or dealers or other
persons selected by the Adviser, and to that end the Adviser is authorized as
the agent of the Fund to give instructions to the custodian of the Fund as to
deliveries of securities and payments of cash for the account of the Fund. In
connection with the selection of such brokers or dealers or other persons and
the placing of such orders, the Adviser shall use its best efforts to seek to
execute security transactions at prices which are advantageous to the Fund and
at reasonably competitive spreads or (when a disclosed commission is being
charged) at reasonably competitive commission rates. In selecting brokers or
dealers qualified to execute a particular transaction, brokers or dealers may be
selected who also provide brokerage and research services (as those terms are
defined in Section 28(e) of the Securities Exchange Act of 1934) to the Adviser,
and the Adviser is expressly authorized to pay any broker or dealer who provides
such brokerage and research services a commission for executing a security
transaction which is in excess of the amount of commission another broker or
dealer would have charged for effecting that transaction if the Adviser
determines in good faith that such amount of commission is reasonable in
relation to the value of the brokerage and research services provided by such
broker or dealer, viewed in terms of either that particular transaction or the
overall responsibilities which the Adviser and its affiliates have with respect
to accounts over which they exercise investment discretion. Subject to the
requirement set forth in the second sentence of this paragraph, the Adviser is
authorized to consider, as a factor in the selection of any broker or dealer
with whom purchase or sale orders may be placed, the fact that such broker or
dealer has sold or is selling shares of the Fund, or any other series of the
Trust, or of other investment companies sponsored by the Adviser.
2. Compensation of the Adviser. For the services, payments and
facilities to be furnished hereunder by the Adviser, the Fund shall pay to the
Adviser on the last day of such month a monthly fee based on the average daily
net assets of the Fund for the month, computed in accordance with the
Declaration of Trust of the Trust and any applicable votes of the Trustees of
the Trust.
Average Daily Net Monthly Fee Rate
Assets for the Month (For Each Level)
-------------------- -----------------
Up to $500 million 1/16 of 1%
$500 million but less than $1 billion 11/192 of 1%
$1 billion but less than $1.5 billion 5/96 of 1%
$1.5 billion but less than $2 billion 3/64 of 1%
$2 billion but less than $3 billion 1/24 of 1%
$3 billion and over 7/192 of 1%
In case of initiation or termination of the Agreement during any month with
respect to the Fund, the fee for that month shall be reduced proportionately on
the basis of the number of calendar days during which it is in effect and the
fee shall be computed upon the basis of the average of valuations made
throughout such period.
The Adviser may, from time to time, waive all or a part of the above
compensation.
3. Allocation of Charges and Expenses. It is understood that the Fund
will pay all its expenses other than those expressly stated to be payable by the
Adviser hereunder, which expenses payable by the Fund shall include, without
implied limitation, (i) expenses of organizing and maintaining the Fund and
continuing its existence, (ii) registration of the Trust under the Investment
Company Act of 1940, (iii) commissions, spreads, fees and other expenses
connected with the purchase or sale of securities, (iv) auditing, accounting and
legal expenses, (v) taxes and interest, (vi) governmental fees, (vii) expenses
of issue, sale, repurchase and redemption of shares, (viii) expenses of
registering and qualifying the Fund and its shares under federal and state
securities laws and of preparing and printing prospectuses for such purposes and
for distributing the same to shareholders and investors, and fees and expenses
of registering and maintaining registrations of the Fund and of the Fund's
principal underwriter, if any, as broker-dealer or agent under state securities
laws, (ix) expenses of reports and notices to shareholders and of meetings of
shareholders and proxy solicitations therefor, (x) expenses of reports to
governmental officers and commissions, (xi) insurance expenses, (xii)
association membership dues, (xiii) fees, expenses and disbursements of
custodians and subcustodians for all services to the Fund (including without
limitation safekeeping of funds and securities, keeping of books and accounts
and determination of net asset values), (xiv) fees, expenses and disbursements
of transfer agents, dividend disbursing agents, shareholder servicing agents and
registrars for all services to the Fund, (xv) expenses for servicing shareholder
accounts, (xvi) any direct charges to shareholders approved by the Trustees of
the Trust, (xvii) compensation and expenses of Trustees of the Trust who are not
members of the Adviser's organization, (xviii) all payments to be made and
expenses to be assumed by the Fund pursuant to any one or more distribution
plans adopted by the Trust on behalf of the Fund pursuant to Rule 12b-1 under
the Investment Company Act of 1940, and (xix) such non-recurring items as may
arise, including expenses incurred in connection with litigation, proceedings
and claims and the obligation of the Trust to indemnify its Trustees and
officers with respect thereto.
4. Other Interests. It is understood that Trustees and officers of the
Trust and shareholders of the Fund are or may be or become interested in the
Adviser as trustees, officers, employees, shareholders or otherwise and that
trustees, officers, employees and shareholders of the Adviser are or may be or
become similarly interested in the Fund, and that the Adviser may be or become
interested in the Fund as a shareholder or otherwise. It is also understood that
trustees, officers, employees and shareholders of the Adviser may be or become
interested (as directors, trustees, officers, employees, stockholders or
otherwise) in other companies or entities (including, without limitation, other
investment companies) which the Adviser may organize, sponsor or acquire, or
with which it may merge or consolidate, and which may include the words "Eaton
Vance" or any combination thereof as part of their name, and that the Adviser or
its subsidiaries or affiliates may enter into advisory or management agreements
or other contracts or relationships with such other companies or entities.
5. Limitation of Liability of the Adviser. The services of the Adviser
to the Trust are not to be deemed to be exclusive, the Adviser being free to
render services to others and engage in other business activities. In the
absence of willful misfeasance, bad faith, gross negligence or reckless
disregard of obligations or duties hereunder on the part of the Adviser, the
Adviser shall not be subject to liability to the Trust or to any shareholder of
the Fund for any act or omission in the course of, or connected with, rendering
services hereunder or for any losses which may be sustained in the purchase,
holding or sale of any security.
6. Sub-Investment Advisers. The Adviser may employ one or more
sub-investment advisers from time to time to perform such of the acts and
services of the Adviser, including the selection of brokers or dealers or other
persons to execute the Fund's portfolio security transactions, and upon such
terms and conditions as may be agreed upon between the Adviser and such
sub-investment adviser and approved by the Trustees of the Trust.
7. Duration and Termination of this Agreement. This Agreement shall
become effective upon the date of its execution, and, unless terminated as
herein provided, shall remain in full force and effect through and including
February 28, 1996 and shall continue in full force and effect indefinitely
thereafter, but only so long as such continuance after February 28, 1996 is
specifically approved at least annually (i) by the Board of Trustees of the
Trust or by vote of a majority of the outstanding voting securities of the Fund
and (ii) by the vote of a majority of those Trustees of the Trust who are not
interested persons of the Adviser or the Trust cast in person at a meeting
called for the purpose of voting on such approval.
Either party hereto may, at any time on sixty (60) days' prior written
notice to the other, terminate this Agreement without the payment of any
penalty, by action of the Trustees of the Trust or the trustees of the Adviser,
as the case may be, and the Trust may, at any time upon such written notice to
the Adviser, terminate this Agreement by vote of a majority of the outstanding
voting securities of the Fund. This Agreement shall terminate automatically in
the event of its assignment.
8. Amendments of the Agreement. This Agreement may be amended by a
writing signed by both parties hereto, provided that no amendment to this
Agreement shall be effective until approved (i) by the vote of a majority of
those Trustees of the Trust who are not interested persons of the Adviser or the
Trust cast in person at a meeting called for the purpose of voting on such
approval, and (ii) by vote of a majority of the outstanding voting securities of
the Fund.
9. Limitation of Liability. The Adviser expressly acknowledges the
provision in the Declaration of Trust of the Trust limiting the personal
liability of shareholders of the Fund, and the Adviser hereby agrees that it
shall have recourse to the Trust or the Fund for payment of claims or
obligations as between the Trust or the Fund and the Adviser arising out of this
Agreement and shall not seek satisfaction from the shareholders or any
shareholder of the Fund.
10. Use of the Name "Eaton Vance". The Adviser hereby consents to the
use by the Fund of the name "Eaton Vance" as part of the Fund's name; provided,
however, that such consent shall be conditioned upon the employment of the
Adviser or one of its affiliates as the investment adviser of the Fund. The name
"Eaton Vance" or any variation thereof may be used from time to time in other
connections and for other purposes by the Adviser and its affiliates and other
investment companies that have obtained consent to the use the name "Eaton
Vance". The Adviser shall have the right to require the Fund to cease using the
name "Eaton Vance" as part of the Fund's name if the Fund ceases, for any
reason, to employ the Adviser or one of its affiliates as the Fund's investment
adviser. Future names adopted by the Fund for itself, insofar as such names
include identifying words requiring the consent of the Adviser, shall be the
property of the Adviser and shall be subject to the same terms and conditions.
11. Certain Definitions. The terms "vote of a majority of the
outstanding voting securities", "assignment", and "interested persons", when
used herein, shall have the respective meanings specified in the Investment
Company Act of 1940 as now in effect or as hereafter amended, subject, however,
to such exemptions as may be granted by the Securities and Exchange Commission
by any rule, regulation or order.
12. This Agreement shall replace and be substituted for an agreement
originally executed on October 21, 1987, and re-executed on November 1, 1990.
The Trust and the Fund are the successors in operations to a predecessor fund
(EV Marathon Gold & Natural Resources Fund) pursuant to a reorganization and the
Trustees of the Trust have determined that it is desirable to replace the
original agreement with an investment advisory agreement with substantially the
same terms.
EATON VANCE GROWTH TRUST (on behalf of EATON VANCE MANAGEMENT
EV Marathon Gold & Natural Resources Fund)
by/s/ James B. Hawkes by/s/ H. Day Brigham Jr.
---------------------------------- -------------------------
President Vice President,
and not individually
EXHIBIT 99.5(b)
EATON VANCE GROWTH TRUST
MANAGEMENT CONTRACT
on behalf of Eaton Vance Greater China Growth Fund
AGREEMENT made this 27th day of October, 1992 between Eaton Vance
Growth Trust, a Massachusetts business trust (the "Trust"), on behalf of Eaton
Vance Greater China Growth Fund (the "Fund") and Eaton Vance Management, a
Massachusetts business trust (the "Manager"):
1. Duties of the Manager. The Trust hereby employs the Manager to act
as manager for and to manage and administer the affairs of the Fund, subject to
the supervision of the Trustees of the Trust, for the period and on the terms
set forth in this Contract.
The Manager hereby accepts such employment, and agrees to manage and
administer the Fund's business affairs and, in connection therewith, to furnish
for the use of the Fund office space and all necessary office facilities,
equipment and personnel for administering the affairs of the Fund.
The Manager's services include monitoring and providing reports to the
Trustees of the Trust concerning the investment performance achieved by the
investment adviser for China Growth Portfolio, recordkeeping, preparation and
filing of documents required to comply with Federal and state securities laws,
supervising the activities of the transfer agent of the Fund, providing
assistance in connection with Trustees and shareholders' meetings and other
management and administrative services necessary to conduct the business of the
Fund. The Manager shall not provide any investment management or advisory
services to the Fund.
2. Compensation of the Manager. For the services, payments and
facilities to be furnished hereunder by the Manager, the Fund shall pay to the
Manager on the last day of such month a fee computed by applying the annual
asset rate applicable to that portion of the average daily net assets of the
Fund throughout the month in each Category as indicated below:
Annual
Category Average Daily Net Assets Asset Rate
1 less than $500 million 0.25000%
2 $500 million but less than $1 billion 0.23333%
3 $1 billion but less than $1.5 billion 0.21667%
4 $1.5 billion but less than $2 billion 0.20000%
5 $2 billion but less than $3 billion 0.18333%
6 $3 billion and over 0.16667%
The average daily net assets of the Fund will be computed in accordance with the
Declaration of Trust, and any applicable votes of the Trustees of the Trust. In
case of initiation or termination of this Contract during any month, the fee for
that month shall be reduced proportionately on the basis of the number of
calendar days during which it is in effect and the fee shall be computed upon
the average net assets for the business days it is so in effect for that month.
The Manager may, from time to time, waive all or a part of the above
compensation.
3. Allocation of Charges and Expenses. It is understood that the Fund
will pay all its expenses other than those expressly stated to be payable by the
Manager hereunder, which expenses payable by the Fund shall include, without
implied limitation, (i) expenses of maintaining the Fund and continuing its
existence, (ii) registration of the Trust under the Investment Company Act of
1940, (iii) commissions, fees and other expenses connected with the purchase or
sale of securities and other investments, (iv) auditing, accounting and legal
expenses, (v) taxes and interest, (vi) governmental fees, (vii) expenses of
issue, sale, repurchase and redemption of shares, (viii) expenses of registering
and qualifying the Fund and its shares under federal and state securities laws
and of preparing and printing prospectuses for such purposes and for
distributing the same to shareholders and investors, and fees and expenses of
registering and maintaining registrations of the Fund and of the Fund's
principal underwriter, if any, as broker-dealer or agent under state securities
laws, (ix) expenses of reports and notices to shareholders and of meetings of
shareholders and proxy solicitations therefor, (x) expenses of reports to
governmental officers and commissions, (xi) insurance expenses, (xii)
association membership dues, (xiii) fees, expenses and other disbursements, if
any, of custodians and sub-custodians for all services to the Fund (including
without limitation safekeeping of funds, securities and other investments,
keeping of books and accounts and determination of net asset value, (xiv) fees,
expenses and disbursements of transfer agents, dividend disbursing agents,
shareholder servicing agents and registrars for all services to the Fund, (xv)
expenses of servicing shareholder accounts, (xvi) any direct charges to
shareholders approved by the Trustees of the Trust, (xvii) compensation and
expenses of Trustees of the Trust who are not members of the Manager's
organization, (xviii) all payments to be made and expenses to be assumed by the
Fund pursuant to any one or more distribution plans adopted by the Trust on
behalf of the Fund pursuant to Rule 12b-1 under the Investment Company Act of
1940 and (xix) such non-recurring items as may arise, including expenses
incurred in connection with litigation, proceedings and claims and the
obligation of the Trust to indemnify its Trustees and officers with respect
thereto.
4. Other Interests. It is understood that Trustees, officers and
shareholders of the Trust are or may be or become interested in the Manager as
Trustees, officers, or employees, or otherwise and that Trustees, officers and
employees of the Manager are or may be or become similarly interested in the
Trust, and that the Manager may be or become interested in the Fund as
shareholder or otherwise. It is also understood that Trustees, officers and
employees of the Manager may be or become interested (as directors, trustees,
officers, employees, stockholders or otherwise) in other companies or entities
(including, without limitation, other investment companies) which the Manager
may organize, sponsor or acquire, or with which it may merge or consolidate, and
that the Manager or its subsidiaries or affiliates may enter into advisory or
management agreements or other contracts or relationships with such other
companies or entities.
5. Limitation of Liability of the Manager. The services of the Manager
of the Fund are not to be deemed to be exclusive, the Manager being free to
render services to others and engage in other business activities. In the
absence of willful misfeasance, bad faith, gross negligence or reckless
disregard of obligations or duties hereunder on the part of the Manager, the
Manager shall not be subject to liability to the Fund or to any shareholder of
the Fund for any act or omission in the course of, or connected with, rendering
services hereunder or for any losses which may be sustained in the purchase,
holding or sale of any security or other instrument, including options and
futures contracts.
6. Duration and Termination of the Contract. This Contract shall become
effective upon the date of its execution, and, unless terminated as herein
provided, shall remain in full force and effect to and including February 28,
1994 and shall continue in full force and effect indefinitely thereafter, but
only so long as such continuance after February 28, 1994 is specifically
approved at least annually by the Trustees of the Trust.
Either party hereto may, at any time on sixty (60) days' prior written
notice to the other, terminate this Contract, without the payment of any
penalty, by action of its Trustees, and the Trust may, at any time upon such
written notice to the Manager, terminate this Contract by vote of a majority of
the outstanding voting securities of the Fund. This Contract shall terminate
automatically in the event of its assignment.
7. Amendment of the Contract. This Contract may be amended by a writing
signed by both parties hereto, provided that no amendment to this Contract shall
be effective until approved by the vote of a majority of the Trustees of the
Trust.
8. Limitation of Liability. The Fund shall not be responsible for the
obligations of any other series of the Trust. The Manager expressly acknowledges
the provision in the Declaration of Trust (Article XIV, Section 2) limiting the
personal liability of shareholders of the Trust, and the Manager hereby agrees
that it shall have recourse only to the assets of the Fund for payment of claims
or obligations as between the Fund and Manager arising out of this Contract and
shall not seek satisfaction from the shareholders or any shareholder or Trustee
of the Fund or the Trust.
9. Use of the Name "Eaton Vance". The Manager hereby consents to the
use by the Fund of the name "Eaton Vance" as part of the Fund's name; provided,
however, that such consent shall be conditioned upon the employment of the
Manager or one of its affiliates as the manager or investment adviser of the
Fund. The name "Eaton Vance" or any variation thereof may be used from time to
time in other connections and for other purposes by the Manager and its
affiliates and other investment companies that have obtained consent to the use
of the name "Eaton Vance." Eaton Vance shall have the right to require the Fund
to cease using the name "Eaton Vance" as part of the Fund's name if the Fund
ceases, for any reason, to employ the Manager or one if its affiliates as the
Fund's manager or investment adviser. Future names adopted by the Fund for
itself, insofar as such names include identifying words requiring the consent of
the Manager, shall be the property of the Manager and shall be subject to the
same terms and conditions.
10. Certain Definitions. The term "assignment" when used herein shall
have the meaning specified in the Investment Company Act of 1940 as now in
effect or as hereafter amended subject, however, to such exemptions as may be
granted by the Securities and Exchange Commission by any rule, regulation or
order. The term "vote of a majority of the outstanding voting securities of the
Fund" shall mean the vote of the lesser of (a) 67 per centum or more of the
shares of the Fund present or represented by proxy at the meeting if the holders
of more than 50 per centum of the outstanding shares of the Fund are present or
represented by proxy at the meeting, or (b) more than 50 per centum of the
outstanding shares of the Fund.
EATON VANCE GROWTH TRUST EATON VANCE MANAGEMENT
(on behalf of
Eaton Vance Greater China Growth Fund)
By/s/ James B. Hawkes By/s/ Curtis H. Jones
---------------------------- ---------------------------------
President Vice President,
and not individually
EXHIBIT 99.5(c)
MANAGEMENT CONTRACT
OF
EATON VANCE GROWTH TRUST
ON BEHALF OF EV MARATHON GREATER CHINA GROWTH FUND
AGREEMENT made this 7th day of June, 1993 between Eaton Vance Growth
Trust, a Massachusetts business trust (the "Trust"), on behalf of EV Marathon
Greater China Growth Fund (the "Fund") and Eaton Vance Management, a
Massachusetts business trust (the "Manager"):
1. Duties of the Manager. The Trust hereby employs the Manager to act
as manager for and to manage and administer the affairs of the Fund, subject to
the supervision of the Trustees of the Trust, for the period and on the terms
set forth in this Contract.
The Manager hereby accepts such employment, and agrees to manage and
administer the Fund's business affairs and, in connection therewith, to furnish
for the use of the Fund office space and all necessary office facilities,
equipment and personnel for administering the affairs of the Fund.
The Manager's services include monitoring and providing reports to the
Trustees of the Trust concerning the investment performance achieved by the
investment adviser for China Growth Portfolio, recordkeeping, preparation and
filing of documents required to comply with Federal and state securities laws,
supervising the activities of the transfer agent of the Fund, providing
assistance in connection with Trustees and shareholders' meetings and other
management and administrative services necessary to conduct the business of the
Fund. The Manager shall not provide any investment management or advisory
services to the Fund.
2. Compensation of the Manager. For the services, payments and
facilities to be furnished hereunder by the Manager, the Fund shall pay to the
Manager on the last day of such month a fee computed by applying the annual
asset rate applicable to that portion of the average daily net assets of the
Fund throughout the month in each Category as indicated below:
Annual
Category Average Daily Net Assets Asset Rate
1 less than $500 million 0.25000%
2 $500 million but less than $1 billion 0.23333%
3 $1 billion but less than $1.5 billion 0.21667%
4 $1.5 billion but less than $2 billion 0.20000%
5 $2 billion but less than $3 billion 0.18333%
6 $3 billion and over 0.16667%
The average daily net assets of the Fund will be computed in accordance with the
Declaration of Trust, and any applicable votes of the Trustees of the Trust. In
case of initiation or termination of this Contract during any month, the fee for
that month shall be reduced proportionately on the basis of the number of
calendar days during which it is in effect and the fee shall be computed upon
the average net assets for the business days it is so in effect for that month.
The Manager may, from time to time, waive all or a part of the above
compensation.
3. Allocation of Charges and Expenses. It is understood that the Fund
will pay all its expenses other than those expressly stated to be payable by the
Manager hereunder, which expenses payable by the Fund shall include, without
implied limitation, (i) expenses of maintaining the Fund and continuing its
existence, (ii) registration of the Trust under the Investment Company Act of
1940, (iii) commissions, fees and other expenses connected with the purchase or
sale of securities and other investments, (iv) auditing, accounting and legal
expenses, (v) taxes and interest, (vi) governmental fees, (vii) expenses of
issue, sale, repurchase and redemption of shares, (viii) expenses of registering
and qualifying the Fund and its shares under federal and state securities laws
and of preparing and printing prospectuses for such purposes and for
distributing the same to shareholders and investors, and fees and expenses of
registering and maintaining registrations of the Fund and of the Fund's
principal underwriter, if any, as broker-dealer or agent under state securities
laws, (ix) expenses of reports and notices to shareholders and of meetings of
shareholders and proxy solicitations therefor, (x) expenses of reports to
governmental officers and commissions, (xi) insurance expenses, (xii)
association membership dues, (xiii) fees, expenses and other disbursements, if
any, of custodians and sub-custodians for all services to the Fund (including
without limitation safekeeping of funds, securities and other investments,
keeping of books and accounts and determination of net asset value, (xiv) fees,
expenses and disbursements of transfer agents, dividend disbursing agents,
shareholder servicing agents and registrars for all services to the Fund, (xv)
expenses of servicing shareholder accounts, (xvi) any direct charges to
shareholders approved by the Trustees of the Trust, (xvii) compensation and
expenses of Trustees of the Trust who are not members of the Manager's
organization, (xviii) all payments to be made and expenses to be assumed by the
Fund pursuant to any one or more distribution plans adopted by the Trust on
behalf of the Fund pursuant to Rule 12b-1 under the Investment Company Act of
1940 and (xix) such non-recurring items as may arise, including expenses
incurred in connection with litigation, proceedings and claims and the
obligation of the Trust to indemnify its Trustees and officers with respect
thereto.
4. Other Interests. It is understood that Trustees, officers and
shareholders of the Trust are or may be or become interested in the Manager as
Trustees, officers, or employees, or otherwise and that Trustees, officers and
employees of the Manager are or may be or become similarly interested in the
Trust, and that the Manager may be or become interested in the Fund as
shareholder or otherwise. It is also understood that Trustees, officers and
employees of the Manager may be or become interested (as directors, trustees,
officers, employees, stockholders or otherwise) in other companies or entities
(including, without limitation, other investment companies) which the Manager
may organize, sponsor or acquire, or with which it may merge or consolidate, and
that the Manager or its subsidiaries or affiliates may enter into advisory or
management agreements or other contracts or relationships with such other
companies or entities.
5. Limitation of Liability of the Manager. The services of the Manager
of the Fund are not to be deemed to be exclusive, the Manager being free to
render services to others and engage in other business activities. In the
absence of willful misfeasance, bad faith, gross negligence or reckless
disregard of obligations or duties hereunder on the part of the Manager, the
Manager shall not be subject to liability to the Fund or to any shareholder of
the Fund for any act or omission in the course of, or connected with, rendering
services hereunder or for any losses which may be sustained in the purchase,
holding or sale of any security or other instrument, including options and
futures contracts.
6. Duration and Termination of the Contract. This Contract shall become
effective upon the date of its execution, and, unless terminated as herein
provided, shall remain in full force and effect to and including February 28,
1995 and shall continue in full force and effect indefinitely thereafter, but
only so long as such continuance after February 28, 1995 is specifically
approved at least annually by the Trustees of the Trust.
Either party hereto may, at any time on sixty (60) days' prior written
notice to the other, terminate this Contract, without the payment of any
penalty, by action of its Trustees, and the Trust may, at any time upon such
written notice to the Manager, terminate this Contract by vote of a majority of
the outstanding voting securities of the Fund. This Contract shall terminate
automatically in the event of its assignment.
7. Amendment of the Contract. This Contract may be amended by a writing
signed by both parties hereto, provided that no amendment to this Contract shall
be effective until approved by the vote of a majority of the Trustees of the
Trust.
8. Limitation of Liability. The Fund shall not be responsible for the
obligations of any other series of the Trust. The Manager expressly acknowledges
the provision in the Declaration of Trust (Article XIV, Section 2) limiting the
personal liability of shareholders of the Trust, and the Manager hereby agrees
that it shall have recourse only to the assets of the Fund for payment of claims
or obligations as between the Fund and Manager arising out of this Contract and
shall not seek satisfaction from the shareholders or any shareholder or Trustee
of the Fund or the Trust.
9. Use of the Name "Eaton Vance". The Manager hereby consents to the
use by the Fund of the name "Eaton Vance" as part of the Fund's name; provided,
however, that such consent shall be conditioned upon the employment of the
Manager or one of its affiliates as the manager or investment adviser of the
Fund. The name "Eaton Vance" or any variation thereof may be used from time to
time in other connections and for other purposes by the Manager and its
affiliates and other investment companies that have obtained consent to the use
of the name "Eaton Vance." Eaton Vance shall have the right to require the Fund
to cease using the name "Eaton Vance" as part of the Fund's name if the Fund
ceases, for any reason, to employ the Manager or one if its affiliates as the
Fund's manager or investment adviser. Future names adopted by the Fund for
itself, insofar as such names include identifying words requiring the consent of
the Manager, shall be the property of the Manager and shall be subject to the
same terms and conditions.
10. Certain Definitions. The term "assignment" when used herein shall
have the meaning specified in the Investment Company Act of 1940 as now in
effect or as hereafter amended subject, however, to such exemptions as may be
granted by the Securities and Exchange Commission by any rule, regulation or
order. The term "vote of a majority of the outstanding voting securities of the
Fund" shall mean the vote of the lesser of (a) 67 per centum or more of the
shares of the Fund present or represented by proxy at the meeting if the holders
of more than 50 per centum of the outstanding shares of the Fund are present or
represented by proxy at the meeting, or (b) more than 50 per centum of the
outstanding shares of the Fund.
EATON VANCE GROWTH TRUST EATON VANCE MANAGEMENT
(ON BEHALF OF EV MARATHON
GREATER CHINA GROWTH FUND)
By/s/ James B. Hawkes By/s/ Curtis H. Jones
---------------------------- ---------------------------------
President Vice President,
and not individually
EXHIBIT 99.5(d)
MANAGEMENT CONTRACT
OF
EATON VANCE GROWTH TRUST
ON BEHALF OF EV CLASSIC GREATER CHINA GROWTH FUND
AGREEMENT made this 17th day of December, 1993 between Eaton Vance
Growth Trust, a Massachusetts business trust (the "Trust"), on behalf of EV
Classic Greater China Growth Fund (the "Fund") and Eaton Vance Management, a
Massachusetts business trust (the "Manager"):
1. Duties of the Manager. The Trust hereby employs the Manager to act
as manager for and to manage and administer the affairs of the Fund, subject to
the supervision of the Trustees of the Trust, for the period and on the terms
set forth in this Contract.
The Manager hereby accepts such employment, and agrees to manage and
administer the Fund's business affairs and, in connection therewith, to furnish
for the use of the Fund office space and all necessary office facilities,
equipment and personnel for administering the affairs of the Fund.
The Manager's services include monitoring and providing reports to the
Trustees of the Trust concerning the investment performance achieved by the
investment adviser for China Growth Portfolio, recordkeeping, preparation and
filing of documents required to comply with Federal and state securities laws,
supervising the activities of the transfer agent of the Fund, providing
assistance in connection with Trustees and shareholders' meetings and other
management and administrative services necessary to conduct the business of the
Fund. The Manager shall not provide any investment management or advisory
services to the Fund.
2. Compensation of the Manager. For the services, payments and
facilities to be furnished hereunder by the Manager, the Fund shall pay to the
Manager on the last day of such month a fee computed by applying the annual
asset rate applicable to that portion of the average daily net assets of the
Fund throughout the month in each Category as indicated below:
Annual
Category Average Daily Net Assets Asset Rate
1 less than $500 million 0.25000%
2 $500 million but less than $1 billion 0.23333%
3 $1 billion but less than $1.5 billion 0.21667%
4 $1.5 billion but less than $2 billion 0.20000%
5 $2 billion but less than $3 billion 0.18333%
6 $3 billion and over 0.16667%
The average daily net assets of the Fund will be computed in accordance with the
Declaration of Trust, and any applicable votes of the Trustees of the Trust. In
case of initiation or termination of this Contract during any month, the fee for
that month shall be reduced proportionately on the basis of the number of
calendar days during which it is in effect and the fee shall be computed upon
the average net assets for the business days it is so in effect for that month.
The Manager may, from time to time, waive all or a part of the above
compensation.
3. Allocation of Charges and Expenses. It is understood that the Fund
will pay all its expenses other than those expressly stated to be payable by the
Manager hereunder, which expenses payable by the Fund shall include, without
implied limitation, (i) expenses of maintaining the Fund and continuing its
existence, (ii) registration of the Trust under the Investment Company Act of
1940, (iii) commissions, fees and other expenses connected with the purchase or
sale of securities and other investments, (iv) auditing, accounting and legal
expenses, (v) taxes and interest, (vi) governmental fees, (vii) expenses of
issue, sale, repurchase and redemption of shares, (viii) expenses of registering
and qualifying the Fund and its shares under federal and state securities laws
and of preparing and printing prospectuses for such purposes and for
distributing the same to shareholders and investors, and fees and expenses of
registering and maintaining registrations of the Fund and of the Fund's
principal underwriter, if any, as broker-dealer or agent under state securities
laws, (ix) expenses of reports and notices to shareholders and of meetings of
shareholders and proxy solicitations therefor, (x) expenses of reports to
governmental officers and commissions, (xi) insurance expenses, (xii)
association membership dues, (xiii) fees, expenses and other disbursements, if
any, of custodians and sub-custodians for all services to the Fund (including
without limitation safekeeping of funds, securities and other investments,
keeping of books and accounts and determination of net asset value, (xiv) fees,
expenses and disbursements of transfer agents, dividend disbursing agents,
shareholder servicing agents and registrars for all services to the Fund, (xv)
expenses of servicing shareholder accounts, (xvi) any direct charges to
shareholders approved by the Trustees of the Trust, (xvii) compensation and
expenses of Trustees of the Trust who are not members of the Manager's
organization, (xviii) all payments to be made and expenses to be assumed by the
Fund pursuant to any one or more distribution plans adopted by the Trust on
behalf of the Fund pursuant to Rule 12b-1 under the Investment Company Act of
1940 and (xix) such non-recurring items as may arise, including expenses
incurred in connection with litigation, proceedings and claims and the
obligation of the Trust to indemnify its Trustees and officers with respect
thereto.
4. Other Interests. It is understood that Trustees, officers and
shareholders of the Trust are or may be or become interested in the Manager as
Trustees, officers, or employees, or otherwise and that Trustees, officers and
employees of the Manager are or may be or become similarly interested in the
Trust, and that the Manager may be or become interested in the Fund as
shareholder or otherwise. It is also understood that Trustees, officers and
employees of the Manager may be or become interested (as directors, trustees,
officers, employees, stockholders or otherwise) in other companies or entities
(including, without limitation, other investment companies) which the Manager
may organize, sponsor or acquire, or with which it may merge or consolidate, and
that the Manager or its subsidiaries or affiliates may enter into advisory or
management agreements or other contracts or relationships with such other
companies or entities.
5. Limitation of Liability of the Manager. The services of the Manager
of the Fund are not to be deemed to be exclusive, the Manager being free to
render services to others and engage in other business activities. In the
absence of willful misfeasance, bad faith, gross negligence or reckless
disregard of obligations or duties hereunder on the part of the Manager, the
Manager shall not be subject to liability to the Fund or to any shareholder of
the Fund for any act or omission in the course of, or connected with, rendering
services hereunder or for any losses which may be sustained in the purchase,
holding or sale of any security or other instrument, including options and
futures contracts.
6. Duration and Termination of the Contract. This Contract shall become
effective upon the date of its execution, and, unless terminated as herein
provided, shall remain in full force and effect to and including February 28,
1995 and shall continue in full force and effect indefinitely thereafter, but
only so long as such continuance after February 28, 1995 is specifically
approved at least annually by the Trustees of the Trust.
Either party hereto may, at any time on sixty (60) days' prior written
notice to the other, terminate this Contract, without the payment of any
penalty, by action of its Trustees, and the Trust may, at any time upon such
written notice to the Manager, terminate this Contract by vote of a majority of
the outstanding voting securities of the Fund. This Contract shall terminate
automatically in the event of its assignment.
7. Amendment of the Contract. This Contract may be amended by a writing
signed by both parties hereto, provided that no amendment to this Contract shall
be effective until approved by the vote of a majority of the Trustees of the
Trust.
8. Limitation of Liability. The Fund shall not be responsible for the
obligations of any other series of the Trust. The Manager expressly acknowledges
the provision in the Declaration of Trust (Article XIV, Section 2) limiting the
personal liability of shareholders of the Trust, and the Manager hereby agrees
that it shall have recourse only to the assets of the Fund for payment of claims
or obligations as between the Fund and Manager arising out of this Contract and
shall not seek satisfaction from the shareholders or any shareholder or Trustee
of the Fund or the Trust.
9. Use of the Name "Eaton Vance". The Manager hereby consents to the
use by the Fund of the name "Eaton Vance" as part of the Fund's name; provided,
however, that such consent shall be conditioned upon the employment of the
Manager or one of its affiliates as the manager or investment adviser of the
Fund. The name "Eaton Vance" or any variation thereof may be used from time to
time in other connections and for other purposes by the Manager and its
affiliates and other investment companies that have obtained consent to the use
of the name "Eaton Vance." Eaton Vance shall have the right to require the Fund
to cease using the name "Eaton Vance" as part of the Fund's name if the Fund
ceases, for any reason, to employ the Manager or one if its affiliates as the
Fund's manager or investment adviser. Future names adopted by the Fund for
itself, insofar as such names include identifying words requiring the consent of
the Manager, shall be the property of the Manager and shall be subject to the
same terms and conditions.
10. Certain Definitions. The term "assignment" when used herein shall
have the meaning specified in the Investment Company Act of 1940 as now in
effect or as hereafter amended subject, however, to such exemptions as may be
granted by the Securities and Exchange Commission by any rule, regulation or
order. The term "vote of a majority of the outstanding voting securities of the
Fund" shall mean the vote of the lesser of (a) 67 per centum or more of the
shares of the Fund present or represented by proxy at the meeting if the holders
of more than 50 per centum of the outstanding shares of the Fund are present or
represented by proxy at the meeting, or (b) more than 50 per centum of the
outstanding shares of the Fund.
EATON VANCE GROWTH TRUST EATON VANCE MANAGEMENT
(ON BEHALF OF EV CLASSIC
GREATER CHINA GROWTH FUND)
By/s/ James B. Hawkes By/s/ Curtis H. Jones
---------------------------- ---------------------------------
President Vice President,
and not individually
EXHIBIT 99.6(a)(1)
DISTRIBUTION AGREEMENT
AGREEMENT made this 30th day of August, 1984 between EATON VANCE GROWTH
FUND, a Massachusetts business trust having its principal place of business in
Boston in the Commonwealth of Massachusetts, hereinafter called the "Fund," and
Eaton Vance Distributors, Inc., a Massachusetts corporation having its principal
place of business in said Boston, hereinafter sometimes called the "Principal
Underwriter".
Now therefore, in consideration of the mutual promises and undertakings
herein contained, the parties hereto agree:
1. The Fund grants to the Principal Underwriter the right to purchase
shares of the Fund upon the terms hereinbelow set forth during the term of this
Agreement. While this Agreement is in force, the Principal Underwriter agrees to
use all reasonable efforts (consistent with the other business of the Principal
Underwriter) to secure purchasers for shares of the Fund.
The Principal Underwriter shall have the right to buy from the Fund the
shares needed, but not more than the shares needed (except for clerical errors
and errors of transmission) to fill unconditional orders for shares of the Fund
placed with the Principal Underwriter by dealers or investors as set forth in
the current Prospectus relating to shares of the Fund. The price which the
Principal Underwriter shall pay for the shares so purchased from the Fund shall
be the net asset value used in determining the public offering price on which
such orders were based. The Principal Underwriter shall notify Investors Bank &
Trust Company and The Shareholder Services Group, Inc., Custodian and Transfer
Agent of the Fund, respectively, at the end of each business day, or as soon
thereafter as the orders placed with it have been compiled, of the number of
shares and the prices thereof which the Principal Underwriter is to purchase as
principal for resale. The Principal Underwriter shall take down and pay for
shares ordered from the Fund on or before the tenth business day (excluding
Saturdays) after the shares have been so ordered.
The right granted to the Principal Underwriter to buy shares from the
Fund shall be exclusive, except that said exclusive right shall not apply to
shares issued in connection with the merger or consolidation of any other
investment company or personal holding company with the Fund or the acquisition
by purchase or otherwise of all (or substantially all) the assets or the
outstanding shares of any such company, by the Fund; nor shall it apply to
shares issued by the Fund in distribution of realized capital gains of the Fund
payable in shares or in cash at the option of the shareholder.
2. The shares may be resold by the Principal Underwriter to dealers
having sales agreements with the Principal Underwriter, and to investors, upon
the following terms and conditions:
The public offering price, i.e., the price per share at which the
Principal Underwriter or dealer purchasing shares from the Principal Underwriter
may sell shares to the public, shall be the public offering price as set forth
in the current Prospectus relating to said shares, but not to exceed the net
asset value at which the Principal Underwriter is to purchase the shares, plus a
sales charge not to exceed 4.75% of the public offering price (the net asset
value divided by .9525). If the resulting public offering price does not come
out to an even cent, the public offering price shall be adjusted to the nearer
cent.
The Principal Underwriter may also sell shares to the trustees and
officers of the fund, and to the directors and officers of its investment
adviser and of the Principal Underwriter, and to the bona fide, full-time
employees or sales representatives of any of the foregoing who have acted as
such for not less than 90 days, and to any trust, pension, profit-sharing or
other benefit plan for such person, at the net asset value at which the
Principal Underwriter is to purchase such shares, provided such sales are made
upon the written assurance of the purchaser that the purchase is made for
investment purposes and that the shares will not be resold except through
redemption or repurchase by or on behalf of the Fund. The term "employees" as
used in this paragraph includes an employee's spouse and minor children and
retired employees.
The net asset value of shares of the Fund shall be determined by the
Fund or Investors Bank & Trust Company, as the agent of the Fund, as of the
close of the New York Stock Exchange on each business day on which said Exchange
is open, in accordance with the method referred to in Article XII of the
Declaration of Trust of the Fund. The Fund may also cause the net asset value to
be determined in substantially the same manner or estimated in such manner and
as of such other time or times as may from time to time be agreed upon by the
Fund and Principal Underwriter. The Fund will notify the Principal Underwriter
each time the net asset value of the shares is determined and when such value is
so determined it shall be applicable to transactions as set forth in the current
Prospectus and Statement of Additional Information relating to shares.
No share of its stock shall be sold by the Fund during any period when
the determination of net asset value is suspended pursuant to Article XII of the
Declaration of Trust of the Fund, except to the Principal Underwriter, in the
manner and upon the terms above set forth to cover contracts of sale made by the
Principal Underwriter with its customers prior to any such suspension, and
except as provided in the last paragraph of paragraph 1 hereof. The Fund shall
also have the right to suspend the sale of its shares if in the judgment of the
Fund conditions obtaining at any time render such action advisable. The
Principal Underwriter shall have the right to suspend sales at any time, to
refuse to accept or confirm any order from an investor or dealer, or to accept
of confirm any such order in part only, if in the judgment of the Principal
Underwriter such action is in the best interests of the Fund.
3. The Fund agrees that it will, from time to time, take all necessary
action to register its shares under the Federal Securities Act of 1933 (as
amended from time to time) to the end that there will be available for sale such
number of shares as the Principal Underwriter may reasonably be expected to
sell. The Fund covenants and agrees that it will use its best efforts in all
respects duly to conform with the requirements of all federal and state laws
relating to the sale of its shares, and will indemnify and hold harmless the
Principal Underwriter and each person, if any, who controls the Principal
Underwriter within the meaning of Section 15 of the Securities Act of 1933
against any loss, liability, claim, damages or expense (including the reasonable
cost of investigating or defending any alleged loss, liability, claim, damages
or expense and reasonable counsel fees incurred in connection therewith),
arising by reason of any person acquiring any shares, which may be based upon
the Securities Act of 1933 or on any other statute or at common law, on the
ground that the registration statement or Prospectus and Statement of Additional
Information, as from time to time amended and supplemented, includes an untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading, unless such statement or omission was made in reliance upon, and in
conformity with, information furnished in writing to the Fund in connection
therewith by or on behalf of the Principal Underwriter; provided, however, that
in no case (i) is the indemnity of the Fund in favor of the Principal
Underwriter and any such controlling person to be deemed to protect such
Principal Underwriter or any such controlling person against any liability to
the Fund or its security holders to which such Principal Underwriter or any such
controlling person would otherwise be subject by reason of willful misfeasance,
bad faith, or gross negligence in the performance of its duties or by reason of
its reckless disregard of its obligations and duties under this Agreement, or
(ii) is the Fund to be liable under its indemnity agreement contained in this
paragraph with respect to any claim made against the Principal Underwriter or
such controlling person unless the Principal Underwriter or any such controlling
person, as the case may be, shall have notified the Fund in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon the Principal
Underwriter or such controlling person (or after such Principal Underwriter or
such controlling person shall have received notice of such service on any
designated agent), but failure to notify the Fund of any such claim shall not
relieve it from liability which may have to the person against whom such action
is brought otherwise than on account of its indemnity agreement contained in
this paragraph. The Fund shall be entitled to participate, at its own expense,
in the defense, or, if it so elects, to assume the defense of any suit brought
to enforce any such liability, but if the Fund elects to assume the defense,
such defense shall be conducted by counsel chosen by it and satisfactory to the
Principal Underwriter or controlling person or persons, defendant or defendants
in the suit. In the event the Fund elects to assume the defense of any such suit
and retains such counsel, the Principal Underwriter or controlling person or
persons, defendant or defendants in the suit, shall bear the fees and expenses
of any additional counsel retained by them, but, in case the Fund does not elect
to assume the defense of any such suit, it shall reimburse the Principal
Underwriter or controlling person or persons, defendant or defendants in the
suit, for the reasonable fees and expenses of any counsel retained by them. The
Fund agrees promptly to notify the Principal Underwriter of the commencement of
any litigation or proceedings against it or any of its officers or Trustees in
connection with the issuance or sale of any of the shares.
4. The Principal Underwriter covenants and agrees that, in selling the
shares of the Fund, it will use its best efforts in all respects duly to conform
with the requirements of all state and federal laws relating to the sale of such
securities, and will indemnify and hold harmless the Fund and each of its
Trustees and officers and each person, if any, who controls the Fund within the
meaning of Section 15 of the Securities Act of 1933, against any loss,
liability, damages, claim or expense (including the reasonable cost of
investigating or defending any alleged loss, liability, damages, claim or
expense and reasonable counsel fees incurred in connection therewith), arising
by reason of any person acquiring any shares, which may be based upon the
Securities Act of 1933 or any other statute or at common law, on account of any
wrongful act of the Principal Underwriter or any of its employees (including any
failure to conform with any requirement of any state or federal law relating to
the sale of such securities) or on the ground that the registration statement or
Prospectus and Statement of Additional Information, as from time to time amended
and supplemented, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading, insofar as any such statement or
omission was made in reliance upon, and in conformity with information furnished
in writing to the Fund in connection therewith by or on behalf of the Principal
Underwriter, provided, however, that in no case (i) is the indemnity of the
Principal Underwriter in favor of any person indemnified to be deemed to protect
the Fund or any such person against any liability to which the Fund or any such
person would otherwise be subject to by reason of willful misfeasance, bad
faith, or gross negligence in the performance of its or his duties or by reason
of its or his reckless disregard of its obligations and duties under this
Agreement, or (ii) is the Principal Underwriter to be liable under its indemnity
agreement contained in this paragraph with respect to any claim made against the
Fund or any person indemnified unless the Fund or such person, as the case may
be, shall have notified the Principal Underwriter in writing within a reasonable
time after the summons or other first legal process giving information of the
nature of the claim shall have been served upon the Fund or upon such person (or
after the Fund or such person shall have received notice of such service on any
designated agent), but failure to notify the Principal Underwriter of any such
claim shall not relieve it from any liability which it may have to the Fund or
any person against whom such action is brought otherwise than on account of its
indemnity agreement contained in this paragraph. The Principal Underwriter shall
be entitled to participate, at its own expense, in the defense, or, if it so
elects, to assume the defense of any suit brought to enforce any such liability,
but if the Principal Underwriter elects to assume the defense, such defense
shall be conducted by counsel chosen by it and satisfactory to the Fund, or to
its officers or Trustees, or to any controlling person or persons, defendant or
defendants in the suit. In the event that the Principal Underwriter elects to
assume the defense of any such suit and retains such counsel, the Fund or such
officers or Trustees or controlling person or persons, defendant or defendants
in the suit, shall bear the fees and expenses of any additional counsel retained
by them, but, in case the Principal Underwriter does not elect to assume the
defense of any such suit, it shall reimburse the Fund, and such officers and
Trustees or controlling person or persons, defendant or defendants in such suit,
for the reasonable fees and expenses of any counsel retained by them. The
Principal Underwriter agrees promptly to notify the Fund of the commencement of
any litigation or proceedings against it in connection with the issue and sale
of any of the shares.
Neither the Principal Underwriter nor any dealer nor any other person
is authorized by the Fund to give any information or to make any
representations, other than those contained in the Registration Statement or
Prospectus and Statement of Additional Information filed with the Securities and
Exchange Commission under the Securities Act of 1933, as amended (as said
Registration Statement, Prospectus and Statement of Additional Information may
be amended or supplemented from time to time), covering the shares of the Fund.
Neither the Principal Underwriter nor any dealer nor any other person is
authorized to act as agent for the Fund in connection with the offering or sale
of shares of the Fund to the public or otherwise. All such sales made by the
Principal Underwriter shall be made by it as principal, for its own account. The
Principal Underwriter may, however, act as agent in connection with the
repurchase of shares as provided in paragraph 6 below, or in connection with
"exchanges" between investment companies for which the Principal Underwriter (or
an affiliate thereof) acts as Principal Underwriter or investment adviser.
5. The Fund will pay, or cause to be paid -
(i) all the costs and expenses of the Fund, including fees and
disbursements of its counsel, in connection with the preparation and filing of
any required Registration Statement and/or Prospectus and Statement of
Additional Information under the Securities Act of 1933 or the Investment
Company Act of 1940 and all amendments and supplements thereto, and preparing
and distributing periodic reports, Prospectuses and Statements of Additional
Information to shareholders (including the expense of setting up in type any
such Registration Statement, Prospectus, and Statement of Additional Information
or periodic report);
(ii) the cost of preparing temporary and permanent stock
certificates for shares of the Fund;
(iii) The cost and expenses of delivering to the Principal
Underwriter at its office in Boston, Massachusetts, all shares purchased by it
as principal hereunder;
(iv) all the federal and state (if any) issue and/or transfer taxes
payable upon the issue by or (in the case of treasury shares) transfer from the
Fund to the Principal Underwriter of any and all shares of the Fund purchased by
the Principal Underwriter hereunder;
(v) the fees, costs and expenses of the registration or
qualification of shares of the Fund for sale in the various states, territories
or other jurisdictions (including without limitation the registering or
qualifying the Fund as a broker or dealer or any officer of the Fund as agent or
salesman in any state, territory or other jurisdiction); and
(vi) all expenses and payments to be paid by the Fund pursuant to
any written plan approved in accordance with Rule 12b-1 under the Investment
Company Act of 1940 in connection with the distribution of shares of the Fund.
The Principal Underwriter agrees that, after the Prospectus, Statement
of Additional Information, and periodic reports have been set up in type, it
will bear the expense of printing and distributing any copies thereof which are
to be used in connection with the offering of shares to dealers or investors
(other than to existing shareholders of the Fund). The Principal Underwriter
further agrees that it will bear the expenses of preparing, printing and
distributing any other literature used by the Principal Underwriter or furnished
by it for use by dealers in connection with the offering of the shares for sale
to the public and any expenses of advertising in connection with such offering.
6. The Fund hereby authorizes the Principal Underwriter to repurchase,
upon the terms and conditions set forth in written instructions given by the
Fund to the Principal Underwriter from time to time, as agent of the Fund and
for its account, such shares of the Fund as may be offered for sale to the Fund
from time to time.
(a) The Principal Underwriter shall notify in writing Investors Bank &
Trust Company and The Shareholder Services Group, Inc., Custodian and Transfer
Agent of the Fund, respectively, at the end of each business day, or as soon
thereafter as the repurchases in each pricing period have been compiled, of the
number of shares repurchased for the account of the Fund since the last previous
report, together with the prices at which such repurchases were made, and upon
the request of any officer or Trustee of the Fund shall furnish similar
information with respect to all repurchases made up to the time of the request
on any day.
(b) The Fund reserves the right to suspend or revoke the foregoing
authorization at any time; unless otherwise stated, any such suspension or
revocation shall be effective forthwith upon receipt of notice thereof by an
officer of the Principal Underwriter, by telegraph or by written instrument from
an officer of the Fund duly authorized by its Board of Trustees. In the event
that the authorization of the Principal Underwriter is, by the terms of such
notice, suspended for more than twenty-four hours or until further notice, the
authorization given by this paragraph 6 shall not be revived except by action of
a majority of the Board of Trustees of the Fund.
(c) The Principal Underwriter shall have the right to terminate the
operation of this paragraph 6 upon giving to the Fund thirty (30) days' written
notice thereof.
(d) The Fund agrees to authorize and direct The Shareholder Services
Group, Inc., Transfer Agent, to pay, for the account of the Fund, the purchase
price of any shares so repurchased against delivery of the certificates in
proper form for transfer to the Fund or for cancellation by the Fund.
(e) The Principal Underwriter shall receive no commission in respect of
any repurchase of shares under the foregoing authorization and appointment as
agent.
(f) The Fund agrees to reimburse the Principal Underwriter, from time
to time on demand, for any reasonable expenses incurred in connection with the
repurchase of shares pursuant to this paragraph 6.
7. If, at any time during the existence of this Agreement, the Fund
shall deem it necessary or advisable in the best interests of the Fund that any
amendment of this Agreement be made in order to comply with the recommendations
or requirements of the Securities and Exchange Commission or other governmental
authority or to obtain any advantage under Massachusetts or federal tax laws,
and shall notify the Principal Underwriter of the form of amendment which it
deems necessary or advisable and the reasons therefor, and, if the Principal
Underwriter declines to assent to such amendment, the fund may terminate this
Agreement forthwith by written notice to the Principal Underwriter. If, at any
time during the existence of this Agreement upon request by the Principal
Underwriter, the Fund fails (after a reasonable time) to make any changes in its
Declaration of Trust or in its methods of doing business which are necessary in
order to comply with any requirements of federal law or regulations of the
Securities and Exchange Commission or of a national securities association of
which the Principal Underwriter is or may be a member, relating to the sale of
the shares of the Fund, the Principal Underwriter may terminate this Agreement
forthwith by written notice to the Fund.
8. In connection with purchases or sales of portfolio securities for
the account of the Fund, neither the Principal Underwriter nor any officer or
trustee of the Principal underwriter shall act as a principal. The Principal
Underwriter covenants that it and its officers and trustees shall comply with
the provisions Section 1 of Article XIV of the Fund's By-Laws applicable to
them.
9. The Principal Underwriter agrees that it will not take any long or
short positions in the shares of the Fund except as permitted by paragraphs 1
and 6 hereof, and that, so far as it can control the situation, it will prevent
any officer, Director or owner of voting common stock of the Principal
Underwriter from taking any long or short position in the shares of the Fund,
except as permitted by the By-Laws of the Fund as from time to time in effect.
10. (a)The Principal Underwriter is a corporation in the United States,
organized under the laws of Massachusetts and holding membership in the National
Association of Securities Dealers, Inc., a securities association registered
under Section 15A of the Securities Exchange Act of 1934, and during the life of
this Agreement will continue to be so resident in the United States, so
organized and a member in good standing of said Association. The Principal
Underwriter will comply with the Fund's Declaration of Trust and By-Laws, and
the Investment Company Act of 1940 and the rules promulgated thereunder, insofar
as they are applicable to the Principal Underwriter.
(b) The Principal Underwriter shall maintain in the United States and
preserve therein for such period or periods as the Securities and Exchange
Commission shall prescribe by rules and regulations applicable to it as
Principal Underwriter of an open-end investment company registered under the
1940 Act such accounts, books and other documents as are necessary or
appropriate to record its transactions with the Fund. Such accounts, books and
other documents shall be subject at any time and from time to time to such
reasonable periodic, special and other examinations by the Commission or any
member or representative thereof as the Commission may prescribe. The Principal
Underwriter shall furnish to the Commission within such reasonable time as the
Commission may prescribe copies of or extracts from such records which may be
prepared without effort, expense or delay as the Commission may by order
require.
11. This Agreement shall continue in force indefinitely until
terminated as in this Agreement above provided, except that:
(a) that this Agreement shall remain in full force and effect through
and including February 28, 1990, and shall continue in full force and effect
indefinitely thereafter, but only so long as such continuance after February 28,
1990 is specifically approved at least annually (i) by the vote of a majority of
the Trustees of the Fund who are not interested persons of the Fund or of the
Principal Underwriter case in person at a meeting called for the purpose of
voting on such approval, and (ii) by the Board of Trustees of the Fund or by
vote of a majority of the outstanding voting securities of the Fund; and
(b) that either shall have the right to terminate this Agreement on six
(6) months' written notice thereof given in writing to the other.
(c) the Fund shall have the right to terminate this Agreement forthwith
in the event that it shall have been established by a court of competent
jurisdiction that the Principal Underwriter or any director or officer of the
Principal Underwriter has taken any action which results in a breach of the
covenants set out in paragraph 8 hereof.
12. In the event of the assignment of this Agreement by the Principal
Underwriter, this Agreement shall automatically terminate.
13. Any notice under this Agreement shall be in writing, addressed and
delivered, or mailed postage paid, to the other party, at such address as such
other party may designate for the receipt of such notices. Until further notice
to the other party, it is agreed that the record address of the Fund, and that
of the Principal Underwriter, shall be 24 Federal Street, Boston, Massachusetts.
14. The services of the Principal Underwriter to the Fund hereunder are
not to be deemed to be exclusive, the Principal Underwriter being free to (a)
render similar services to, and to act as principal underwriter in connection
with the distribution of shares of, other investment companies, and (b) engage
in other business and activities from time to time.
15. The terms "vote of a majority of the outstanding voting
securities", "assignment" and "interested persons, " when used herein, shall
have the respective meanings specified in the Investment Company Act of 1940 as
now in effect or as hereafter amended, subject, however, to such exemptions as
may be granted by the Securities and Exchange Commission by any rule, regulation
or order.
16. The Adviser expressly acknowledges the provision in the Declaration
of Trust of the Fund (Article XIV, Section 2) limiting the personal liability of
the Trustees and shareholders of the Fund, and the Adviser hereby agrees that it
shall have recourse only to the assets of the Fund for payment of claims or
obligations as between the Fund and Adviser arising out of this Agreement and
shall not seek satisfaction thereof from the Trustees or shareholders of the
Fund.
17. This Agreement replaces the Distribution Agreement dated December
15, 1982 between the Principal Underwriter and Eaton Vance Growth Fund, Inc.
(the Fund's predecessor), said Distribution Agreement being terminated effective
with the execution of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
EATON VANCE GROWTH FUND
By/s/ Edwin W. Bragdon
-------------------------------
Vice President
EATON VANCE DISTRIBUTORS, INC.
By/s/ Duane E. Waldenburg
-------------------------------
President
<PAGE>
EXHIBIT 99.6(a)(2)
EATON VANCE GROWTH TRUST
DISTRIBUTION AGREEMENT
ON BEHALF OF EATON VANCE GREATER CHINA GROWTH FUND
AGREEMENT made this 27th day of October, 1992 between EATON VANCE
GROWTH TRUST, a Massachusetts business trust having its principal place of
business in Boston in the Commonwealth of Massachusetts, hereinafter called the
"Trust", on behalf of Eaton Vance Greater China Growth Fund (the "Fund") and
EATON VANCE DISTRIBUTORS, INC., a Massachusetts corporation having its principal
place of business in said Boston, hereinafter sometimes called the "Principal
Underwriter";
Now, therefore, in consideration of the mutual promises and
undertakings herein contained, the parties hereto agree:
1. The Trust grants to the Principal Underwriter the right to purchase
shares of the Fund upon the terms hereinbelow set forth during the term of this
Agreement. While this Agreement is in force, the Principal Underwriter agrees to
use all reasonable efforts (consistent with the other business of the Principal
Underwriter) to secure purchasers for shares of the Fund.
The Principal Underwriter shall have the right to buy from the Fund the
shares needed, but not more than the shares needed (except for clerical errors
and errors of transmission) to fill unconditional orders for shares of the Fund
placed with the Principal Underwriter by financial service firms or investors as
set forth in the current Prospectus relating to shares of the Fund. The price
which the Principal Underwriter shall pay for the shares so purchased from the
Fund shall be the net asset value used in determining the public offering price
on which such orders were based. The Principal Underwriter shall notify
Investors Bank & Trust Company and The Shareholder Services Group, Inc.,
Custodian and Transfer Agent of the Fund, respectively, at the end of each
business day, or as soon thereafter as the orders placed with it have been
compiled, of the number of shares and the prices thereof which the Principal
Underwriter is to purchase as principal for resale. The Principal Underwriter
shall take down and pay for shares ordered from the Fund on or before the tenth
business day (excluding Saturdays) after the shares have been so ordered.
The right granted to the Principal Underwriter to buy shares from the
Fund shall be exclusive, except that said exclusive right shall not apply to
shares issued in connection with the merger or consolidation of any other
investment company or personal holding company with the Fund or the acquisition
by purchase or otherwise of all (or substantially all) the assets or the
outstanding shares of any such company, by the Fund; nor shall it apply to
shares issued by the Fund in distribution of realized capital gains of the Fund
payable in shares or in cash at the option of the shareholder.
2. The shares may be resold by the Principal Underwriter to financial
service firms having agreements with the Principal Underwriter, and to
investors, upon the following terms and conditions:
The public offering price, i.e., the price per share at which the
Principal Underwriter or financial service firm purchasing shares from the
Principal Underwriter may sell shares to the public, shall be the public
offering price as set forth in the current Prospectus relating to said shares,
but not to exceed the net asset value at which the Principal Underwriter is to
purchase the shares, plus a sales charge not to exceed 8.50% of the public
offering price (the net asset value divided by .915). If the resulting public
offering price does not come out to an even cent, the public offering price
shall be adjusted to the nearer cent.
The Principal Underwriter may also sell shares of the Fund to the
Trustees and officers of the Trust, and to the directors and officers of its
investment adviser and of the Principal Underwriter, and to the bona fide,
full-time employees or sales representatives of any of the foregoing who have
acted as such for not less than 90 days, and to any trust, pension,
profit-sharing or other benefit plan for such person, at the net asset value at
which the Principal Underwriter is to purchase such shares, provided such sales
are made upon the written assurance of the purchaser that the purchase is made
for investment purposes and that the shares will not be resold except through
redemption or repurchase by or on behalf of the Fund. The term "employees" as
used in this paragraph includes an employee's spouse and minor children and
retired employees.
The net asset value of shares of the Fund shall be determined by the
Trust or Investors Bank & Trust Company, as the agent of the Fund, as of the
close of the New York Stock Exchange on each business day on which said Exchange
is open, in accordance with the method referred to in Article XII of the
Declaration of Trust of the Trust. The Trust may also cause the net asset value
to be determined in substantially the same manner or estimated in such manner
and as of such other time or times as may from time to time be agreed upon by
the Trust and Principal Underwriter. The Trust will notify the Principal
Underwriter each time the net asset value of the Fund's shares is determined and
when such value is so determined it shall be applicable to transactions as set
forth in the current Prospectus relating to the Fund's shares.
No shares of the Fund shall be sold by the Fund during any period when
the determination of net asset value is suspended pursuant to the Declaration of
Trust of the Trust, except to the Principal Underwriter, in the manner and upon
the terms above set forth to cover contracts of sale made by the Principal
Underwriter with its customers prior to any such suspension, and except as
provided in the last paragraph of paragraph 1 hereof. The Trust shall also have
the right to suspend the sale of the Fund's shares if in the judgment of the
Trust conditions obtaining at any time render such action advisable. The
Principal Underwriter shall have the right to suspend sales at any time, to
refuse to accept or confirm any order from an investor or financial service
firm, or to accept or confirm any such order in part only, if in the judgment of
the Principal Underwriter such action is in the best interests of the Fund.
3. The Trust agrees that it will, from time to time, but subject to the
necessary approval of the Fund's shareholders, take such steps as may be
necessary to register the Fund's shares under the federal Securities Act of
1933, as amended from time to time (the "1933 Act"), to the end that there will
be available for sale such number of shares as the Principal Underwriter may
reasonably be expected to sell. The Trust covenants and agrees that it will use
its best efforts in all respects duly to conform with the requirements of all
federal and state laws relating to the sale of its shares, and will indemnify
and hold harmless the Principal Underwriter and each person, if any, who
controls the Principal Underwriter within the meaning of Section 15 of the 1933
Act against any loss, liability, claim, damages or expense (including the
reasonable cost of investigating or defending any alleged loss, liability,
claim, damages or expense and reasonable counsel fees incurred in connection
therewith), arising by reason of any person acquiring any shares of the Fund,
which may be based upon the 1933 Act or on any other statute or at common law,
on the ground that the Registration Statement or Prospectus, as from time to
time amended and supplemented, includes an untrue statement of a material fact
or omits to state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading, unless such statement of
omission was made in reliance upon, and in conformity with information furnished
in writing to the Trust in connection therewith by or on behalf of the Principal
Underwriter; provided, however, that in no case (i) is the indemnity of the
Trust in favor of the Principal Underwriter and any such controlling person to
be deemed to protect such Principal Underwriter or any such controlling person
against any liability to the Trust or the Fund or its security holders to which
such Principal Underwriter or any such controlling person would otherwise be
subject by reason of willful misfeasance, bad faith, or gross negligence, in the
performance of its duties or by reason of its reckless disregard of its
obligations and duties under this Agreement, or (ii) is the Trust or the Fund to
be liable under its indemnity agreement contained in this paragraph with respect
to any claim made against the Principal Underwriter or any such controlling
person unless the Principal Underwriter or any such controlling person, as the
case may be, shall have notified the Trust in writing within a reasonable time
after the summons or other first legal process giving information of the nature
of the claim shall have been served upon the Principal Underwriter or upon such
controlling person (or after such Principal Underwriter or such controlling
person shall have received notice of such service on any designated agent), but
failure to notify the Trust of any such claim shall not relieve it from any
liability which the Fund may have to the person against whom such action is
brought otherwise than on account of its indemnity agreement contained in this
paragraph. The Trust shall be entitled to participate, at the expense of the
Fund, in the defense, or, if the Trust so elects, to assume the defense of any
suit brought to enforce any such liability, but if the Trust elects to assume
the defense, such defense shall be conducted by counsel chosen by it and
satisfactory to the Principal Underwriter or controlling person or persons,
defendant or defendants in the suit. In the event the Trust elects to assume the
defense of any such suit and retains such counsel, the Principal Underwriter or
controlling person or persons, defendant or defendants in the suit, shall bear
the fees and expenses of any additional counsel retained by them, but, in case
the Trust does not elect to assume the defense of any such suit, the Fund shall
reimburse the Principal Underwriter or controlling person or persons, defendant
or defendants in the suit, for the reasonable fees and expenses of any counsel
retained by them. The Trust agrees promptly to notify the Principal Underwriter
of the commencement of any litigation or proceedings against it or any of its
officers or Trustees in connection with the issuance or sale of any of the
Fund's shares.
4. The Principal Underwriter covenants and agrees that, in selling the
shares of the Fund, it will use its best efforts in all respects duly to conform
with the requirements of all state and federal laws relating to the sale of such
shares, and will indemnify and hold harmless the Trust and each of its Trustees
and officers and each person, if any, who controls the Trust within the meaning
of Section 15 of the 1933 Act against any loss, liability, damages, claim or
expense (including the reasonable cost of investigating or defending any alleged
loss, liability, damages, claim or expense and reasonable counsel fees incurred
in connection therewith), arising by reason of any person acquiring any shares
of the Fund, which may be based upon the 1933 Act or any other statute or at
common law, on account of any wrongful act of the Principal Underwriter or any
of its employees (including any failure to conform with any requirement of any
state or federal law relating to the sale of such shares) or on the ground that
the Registration Statement or Prospectus, as from time to time amended and
supplemented, includes an untrue statement of a material fact or omits to state
a material fact required to be stated therein or necessary in order to make the
statements therein not misleading, insofar as any such statement or omission was
made in reliance upon, and in conformity with information furnished in writing
to the Fund in connection therewith by or on behalf of the Principal
Underwriter, provided, however, that in no case (i) is the indemnity of the
Principal Underwriter in favor of any person indemnified to be deemed to protect
the Fund or any such person against any liability to which the Fund or any such
person would otherwise be subject to by reason of willful misfeasance, bad
faith, or gross negligence, in the performance of its or his duties or by reason
of its or his reckless disregard of its obligations and duties under this
Agreement, or (ii) is the Principal Underwriter to be liable under its indemnity
agreement contained in this paragraph with respect to any claim made against the
Fund or any person indemnified unless the Trust or such person, as the case may
be, shall have notified the Principal Underwriter in writing within a reasonable
time after the summons or other first legal process giving information of the
nature of the claim shall have been served upon the Trust; the Fund or upon such
person (or after the Trust or such person shall have received notice of such
service on any designated agent), but failure to notify the Principal
Underwriter of any such claim shall not relieve it from any liability which it
may have to the Fund or any person against whom such action is brought otherwise
than on account of its indemnity agreement contained in this paragraph. The
Principal Underwriter shall be entitled to participate, at its own expense, in
the defense, or, if it so elects, to assume the defense of any suit brought to
enforce any such liability, but, if the Principal Underwriter elects to assume
the defense, such defense shall be conducted by counsel chosen by it and
satisfactory to the Trust, or to its officers or Trustees, or to any controlling
person or persons, defendant or defendants in the suit. In the event that the
Principal Underwriter elects to assume the defense of any such suit and retains
such counsel, the Fund or such officers or Trustees or controlling person or
persons, defendant or defendants in the suit, shall bear the fee and expenses of
any additional counsel retained by them or the Trust, but, in case the Principal
Underwriter does not elect to assume the defense of any such suit, it shall
reimburse the Fund, any such officers and Trustees or controlling person or
persons, defendant or defendants in such suit, for the reasonable fees and
expenses of any counsel retained by them or the Trust. The Principal Underwriter
agrees promptly to notify the Trust of the commencement of any litigation or
proceedings against it in connection with the issue and sale of any of the
Fund's shares.
Neither the Principal Underwriter nor any financial service firm nor
any other person is authorized by the Trust to give any information or to make
any representations, other than those contained in the Registration Statement or
Prospectus filed with the Securities and Exchange Commission (hereinafter
sometimes called the "Commission") under the 1933 Act, as amended (as said
Registration Statement or Prospectus may be amended or supplemented from time to
time), covering the shares of the Fund. Neither the Principal Underwriter nor
any financial service firm nor any other person is authorized to act as agent
for the Trust or the Fund in connection with the offering or sale of shares of
the Fund to the public or otherwise. All such sales made by the Principal
Underwriter shall be made by it as principal, for its own account. The Principal
Underwriter may, however, act as agent in connection with the repurchase of
shares as provided in paragraph 6 below, or in connection with "exchanges"
between investment companies for which the Principal Underwriter (or an
affiliate thereof) acts as Principal Underwriter or investment adviser.
5. The Fund will pay, or cause to be paid -
(i) all the costs and expenses of the Fund, including fees and
disbursements of its counsel, in connection with the preparation and filing of
any required Registration Statement and/or Prospectus under the 1933 Act or the
Investment Company Act of 1940 and all amendments and supplements thereto, and
preparing and distributing periodic reports and Prospectuses to shareholders
(including the expense of setting up in type any such Registration Statement,
Prospectus or periodic report);
(ii) the cost of preparing temporary and permanent share
certificates (if any) for shares of the Fund;
(iii) the cost and expenses of delivering to the Principal
Underwriter at its office in Boston, Massachusetts, all shares of the Fund
purchased by it as principal hereunder;
(iv) all the federal and state (if any) issue and/or transfer
taxes payable upon the issue by or (in the case of treasury shares) transfer
from Fund to the Principal Underwriter of any and all shares of the Fund
purchased by the Principal Underwriter hereunder;
(v) the fees, costs and expenses of the registration or
qualification of shares of the Fund for sale in the various states, territories
or other jurisdictions (including without limitation the registering or
qualifying the Trust or the Fund as a broker or dealer or any officer of the
Trust as agent or salesman in any state, territory or other jurisdiction); and
(vi) all expenses and payments to be paid by the Fund pursuant
to any written plan approved in accordance with Rule 12b-1 under the Investment
Company Act of 1940 in connection with the distribution of shares of the Fund.
The Principal Underwriter agrees that, after the Prospectus and
periodic reports of the Fund have been set up in type, it will bear the expense
of printing and distributing any copies thereof which are to be used in
connection with the offering of shares to financial service firms or investors
(other than to existing shareholders of the Fund). The Principal Underwriter
further agrees that it will bear the expenses of preparing, printing and
distributing any other literature used by the Principal Underwriter or furnished
by it for use by financial service firms in connection with the offering of the
shares of the Fund for sale to the public, and any expenses of advertising in
connection with such offering.
6. The Trust hereby authorizes the Principal Underwriter to repurchase,
upon the terms and conditions set forth in written instructions given by the
Trust to the Principal Underwriter from time to time, as agent of the Fund and
for its account, such shares of the Fund as may be offered for sale to the Fund
from time to time.
(a) The Principal Underwriter shall notify in writing
Investors Bank and Trust Company and The Shareholder Services Group, Inc.,
Custodian and Transfer Agent of the Fund, respectively, at the end of each
business day, or as soon thereafter as the repurchases in each pricing period
have been compiled, of the number of shares repurchased for the account of the
Fund since the last previous report, together with the prices at which such
repurchases were made, and upon the request of any officer or Trustee of the
Trust shall furnish similar information with respect to all repurchases made up
to the time of the request on any day.
(b) The Trust reserves the right to suspend or revoke the
foregoing authorization at any time; unless otherwise stated, any such
suspension or revocation shall be effective forthwith upon receipt of notice
thereof by an officer of the Principal Underwriter, by telegraph or by written
instrument from an officer of the Trust duly authorized by its Trustees. In the
event that the authorization of the Principal Underwriter is, by the terms of
such notice, suspended for more that twenty-four hours or until further notice,
the authorization given by this paragraph 6 shall not be revived except by
action of a majority of the Trustees of the Trust.
(c) The Principal Underwriter shall have the right to
terminate the operation of this paragraph 6 upon giving to the Trust thirty (30)
days' written notice thereof.
(d) The Trust agrees to authorize and direct the Fund's
custodian or transfer agent, to pay, for the account of the Fund, the purchase
price of any shares so repurchased against delivery of the certificates in
proper form for transfer to the Fund or for cancellation by the Fund.
(e) The Principal Underwriter shall receive no commission in
respect of any repurchase of shares under the foregoing authorization and
appointment as agent.
(f) The Trust agrees that the Fund will reimburse the
Principal Underwriter, from time to time upon demand, for any reasonable
expenses incurred in connection with the repurchase of shares of the Fund
pursuant to this paragraph 6.
7. If, at any time during the existence of this Agreement, the Trust
shall deem it necessary or advisable in the best interests of the Fund that any
amendment of this Agreement be made in order to comply with the recommendations
or requirements of the Securities and Exchange Commission or other governmental
authority or to obtain any advantage under Massachusetts or federal tax laws,
and shall notify the Principal Underwriter of the form of amendment which it
deems necessary or advisable and the reasons therefor, and, if the Principal
Underwriter declines to assent to such amendment, the Trust may terminate this
Agreement forthwith by written notice to the Principal Underwriter. If, at any
time during the existence of this Agreement, upon request by the Principal
Underwriter, the Trust fails (after a reasonable time) to make any changes in
its Declaration of Trust, as amended, or in its methods of doing business which
are necessary in order to comply with any requirements of federal law or
regulations of the Securities and Exchange Commission or of a national
securities association of which the Principal Underwriter is or may be a member,
relating to the sale of the shares of the Fund, the Principal Underwriter may
terminate this agreement forthwith by written notice to the Trust.
8. In connection with purchase or sales of portfolio securities for the
account of the Fund, neither the Principal Underwriter nor any officer or
director of the Principal Underwriter shall act as a principal. The Principal
Underwriter covenants that it and its officers and directors shall comply with
the provisions of the Trust's By-Laws applicable to them.
9. The Principal Underwriter agrees that it will not take any long or
short positions in the shares of the Fund except as permitted by paragraphs 1
and 6 hereof, and that, so far as it can control the situation, it will prevent
any officer, director or owner of voting common stock of the Principal
Underwriter from taking any long or short position in the shares of the Fund,
except as permitted by the By-Laws of the Trust as from time to time in effect.
10. (a) The Principal Underwriter is a corporation in the United
States, organized under the laws of Massachusetts holding membership in the
National Association of Securities Dealers, Inc., a securities association
registered under Section 15A of the Securities Exchange Act of 1934, and during
the life of this Agreement will continue to be so resident in the United States,
so organized and a member in good standing of said Association. The Principal
Underwriter will comply with the Trust's Declaration of Trust and By-Laws, and
the Investment Company Act of 1940 and the rules promulgated thereunder, insofar
as they are applicable to the Principal Underwriter.
(b) The Principal Underwriter shall maintain in the United
States and preserve therein for such period or periods as the Commission shall
prescribe by rules and regulations applicable to it as a Principal Underwriter
of an open-end investment company registered under the Investment Company Act of
1940 such accounts, books and other documents as are necessary or appropriate to
record its transactions with the Fund. Such accounts, books and other documents
shall be subject at any time and from time to time to such reasonable periodic,
special and other examinations by the Commission or any member or representative
thereof as the Commission may prescribe. The Principal Underwriter shall furnish
to the Commission within such reasonable time as the Commission may prescribe
copies of or extracts from such records which may be prepared without effort,
expense or delay as the Commission may by order require.
11. This Agreement shall continue in force indefinitely until
terminated as in this Agreement above provided, except:
(a) that this Agreement shall remain in full force and effect
through and including April 28, 1993, and shall continue in full force and
effect indefinitely thereafter, but only so long as such continuance after April
28, 1993 is specifically approved at least annually (i) by the vote of a
majority of the Trustees of the Trust who are not interested persons of the
Trust or of the Principal Underwriter cast in person at a meeting called for the
purpose of voting on such approval, and (ii) by the Board of Trustees of the
Trust or by vote of a majority of the outstanding voting securities of the Fund;
and
(b) that either party shall have the right to terminate this
Agreement on six (6) months' written notice thereof given in writing to the
other.
(c) the Trust shall have the right to terminate this Agreement
forthwith in the event that it shall have been established by a court of
competent jurisdiction that the Principal Underwriter or any director or officer
of the Principal Underwriter has taken any action which results in a breach of
the covenants set out in paragraph 8 hereof.
12. In the event of the assignment of this Agreement by the Principal
Underwriter, this Agreement shall automatically terminate.
13. Any notice under this Agreement shall be in writing, addressed and
delivered, or mailed postage paid, to the other party, at such address as such
other party may designate for the receipt of such notices. Until further notice
to the other party, it is agreed that the record address of the Trust, and that
of the Principal Underwriter, shall be 24 Federal Street, Boston, Massachusetts
02110.
14. The services of the Principal Underwriter to the Fund hereunder are
not to be deemed to be exclusive, the Principal Underwriter being free to (a)
render similar services to, and to act as principal underwriter in connection
with the distribution of shares of, other series of the Trust or investment
companies, and (b) engage in other businesses and activities from time to time.
15. The terms "vote of a majority of the outstanding voting
securities," "assignment" and "interested persons," when used herein, shall have
the respective meanings specified in the Investment Company Act of 1940 as now
in effect or as hereafter amended, subject, however, to such exemptions as may
be granted by the Securities and Exchange Commission by any rule, regulation or
order.
16. The Principal Underwriter expressly acknowledges the provision in
the Trust's Declaration of Trust limiting the personal liability of the
shareholders of the Fund or the Trustees of the Trust, and the Principal
Underwriter hereby agrees that it shall have recourse to the Trust or the Fund
for payment of claims or obligations as between the Trust or the Fund and the
Principal Underwriter arising out of this Agreement and shall not seek
satisfaction from the shareholders or any shareholder of the Fund or from the
Trustees or any Trustee of the Trust. The Fund shall not be responsible for
obligations of any other series of the Trust.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
EATON VANCE GROWTH TRUST
(on behalf of Eaton Vance Greater China Growth Fund)
By /s/ James B. Hawkes
-------------------------------------------------
President
EATON VANCE DISTRIBUTORS, INC.
By /s/ Wharton P. Whitaker
-------------------------------------------------
President
<PAGE>
EXHIBIT 99.6(a)(3)
DISTRIBUTION AGREEMENT
EATON VANCE GROWTH TRUST
ON BEHALF OF EV MARATHON GREATER CHINA GROWTH FUND
AGREEMENT effective as of June 7, 1993 between EATON VANCE GROWTH
TRUST, a Massachusetts business trust having its principal place of business in
Boston in the Commonwealth of Massachusetts, hereinafter called the "Trust", on
behalf of EV Marathon Greater China Growth Fund (the "Fund"), and EATON VANCE
DISTRIBUTORS, INC., a Massachusetts corporation having its principal place of
business in said Boston, hereinafter sometimes called the "Principal
Underwriter".
IN CONSIDERATION of the mutual promises and undertakings herein
contained, the parties hereto agree:
1. The Trust grants to the Principal Underwriter the right to purchase
shares of the Fund upon the terms hereinbelow set forth during the term of this
Agreement. While this Agreement is in force, the Principal Underwriter agrees to
use its best efforts to find purchasers for shares of the Fund.
The Principal Underwriter shall have the right to buy from the Fund the
shares needed, but not more than the shares needed (except for clerical errors
and errors of transmission) to fill unconditional orders for shares of the Fund
placed with the Principal Underwriter by financial service firms or investors as
set forth in the current Prospectus relating to shares of the Fund. The price
which the Principal Underwriter shall pay for the shares so purchased shall be
equal to the price paid by investors upon purchasing such shares. The Principal
Underwriter shall notify Investors Bank & Trust Company, Custodian of the Fund,
at the end of each business day, or as soon thereafter as the orders placed with
it have been compiled, of the number of shares and the prices thereof which the
Principal Underwriter is to purchase as principal for resale. The Principal
Underwriter shall take down and pay for shares ordered from the Fund on or
before the eleventh business day (excluding Saturdays) after the shares have
been so ordered.
The right granted to the Principal Underwriter to buy shares from the
Fund shall be exclusive, except that said exclusive right shall not apply to
shares issued in connection with the merger or consolidation of any other
investment company or personal holding company with the Fund or the acquisition
by purchase or otherwise of all (or substantially all) the assets or the
outstanding shares of any such company, by the Fund; nor shall it apply to
shares, if any, issued by the Fund in distribution of realized capital gains of
the Fund payable in shares or in cash at the option of the shareholder.
2. The shares may be resold by the Principal Underwriter to or through
financial service firms having agreements with the Principal Underwriter, and to
investors, upon the following terms and conditions.
The public offering price, i.e., the price per share at which the
Principal Underwriter or financial service firm purchasing shares from the
Principal Underwriter may sell shares to the public, shall be equal to the net
asset value at which the Principal Underwriter is to purchase the shares.
The net asset value of shares of the Fund shall be determined by the
Trust or Investors Bank & Trust Company, as the agent of the Fund, as of the
close of trading on the New York Stock Exchange on each business day on which
said Exchange is open, or as of such other time on each such business day as may
be determined by the Trustees of the Trust, in accordance with the methodology
and procedures for calculating such net asset value authorized by the Trustees.
The Trust may also cause the net asset value to be determined in substantially
the same manner or estimated in such manner and as of such other time or times
as may from time to time be agreed upon by the Trust and Principal Underwriter.
The Trust will notify the Principal Underwriter each time the net asset value of
the Fund's shares is determined and when such value is so determined it shall be
applicable to transactions as set forth in the current Prospectus relating to
the Fund's shares.
No shares of the Fund shall be sold by the Fund during any period when
the determination of net asset value is suspended pursuant to the Declaration of
Trust, except to the Principal Underwriter, in the manner and upon the terms
above set forth to cover contracts of sale made by the Principal Underwriter
with its customers prior to any such suspension, and except as provided in the
last paragraph of paragraph 1 hereof. The Trust shall also have the right to
suspend the sale of the Fund's shares if in the judgment of the Trust conditions
obtaining at any time render such action advisable. The Principal Underwriter
shall have the right to suspend sales at any time, to refuse to accept or
confirm any order from an investor or financial service firm, or to accept or
confirm any such order in part only, if in the judgment of the Principal
Underwriter such action is in the best interests of the Fund.
3. The Trust agrees that it will, from time to time, but subject to the
necessary approval of the Fund's shareholders, take such steps as may be
necessary to register the Fund's shares under the federal Securities Act of 1933
(as amended from time to time) to the end that there will be available for sale
such number of shares as the Principal Underwriter may reasonably be expected to
sell. The Trust agrees to indemnify and hold harmless the Principal Underwriter
and each person, if any, who controls the Principal Underwriter within the
meaning of Section 15 of the Securities Act of 1933 against any loss, liability,
claim, damages or expense (including the reasonable cost of investigating or
defending any alleged loss, liability, claim, damages or expense and reasonable
counsel fees incurred in connection therewith), arising by reason of any person
acquiring any shares of the Fund, which may be based upon the Securities Act of
1933 or on any other statute or at common law, on the ground that the
Registration Statement or Prospectus, as from time to time amended and
supplemented, includes an untrue statement of a material fact or omits to state
a material fact required to be stated therein or necessary in order to make the
statements therein not misleading, unless such statement or omission was made in
reliance upon, and in conformity with, information furnished in writing to the
Trust in connection therewith by or on behalf of the Principal Underwriter;
provided, however, that in no case (i) is the indemnity of the Trust in favor of
the Principal Underwriter and any such controlling person to be deemed to
protect such Principal Underwriter or any such controlling person against any
liability to the Trust or the Fund or its security holders to which such
Principal Underwriter or any such controlling person would otherwise be subject
by reason of willful misfeasance, bad faith, or gross negligence in the
performance of its duties or by reason of its reckless disregard of its
obligations and duties under this Agreement, or (ii) is the Trust or the Fund to
be liable under its indemnity agreement contained in this paragraph with respect
to any claim made against the Principal Underwriter or any such controlling
person unless the Principal Underwriter or any such controlling person, as the
case may be, shall have notified the Trust in writing within a reasonable time
after the summons or other first legal process giving information of the nature
of the claim shall have been served upon the Principal Underwriter or such
controlling person (or after such Principal Underwriter or such controlling
person shall have received notice of such service on any designated agent), but
failure to notify the Trust of any such claim shall not relieve it from any
liability which the Fund may have to the person against whom such action is
brought otherwise than on account of its indemnity agreement contained in this
paragraph. The Trust shall be entitled to participate, at the expense of the
Fund, in the defense, or, if the Trust so elects, to assume the defense of any
suit brought to enforce any such liability, but if the Trust elects to assume
the defense, such defense shall be conducted by counsel chosen by it and
satisfactory to the Principal Underwriter or controlling person or persons,
defendant or defendants in the suit. In the event the Trust elects to assume the
defense of any such suit and retains such counsel, the Principal Underwriter or
controlling person or persons, defendant or defendants in the suit, shall bear
the fees and expenses of any additional counsel retained by them, but, in case
the Trust does not elect to assume the defense of any such suit, the Fund shall
reimburse the Principal Underwriter or controlling person or persons, defendant
or defendants in the suit, for the reasonable fees and expenses of any counsel
retained by them. The Trust agrees promptly to notify the Principal Underwriter
of the commencement of any litigation or proceedings against it or any of its
officers or Trustees in connection with the issuance or sale of any of the
Fund's shares.
4. The Principal Underwriter covenants and agrees that, in selling the
shares of the Fund, it will use its best efforts in all respects duly to conform
with the requirements of all state and federal laws relating to the sale of such
shares, and will indemnify and hold harmless the Trust and each of its Trustees
and officers and each person, if any, who controls the Trust within the meaning
of Section 15 of the Securities Act of 1933, against any loss, liability,
damages, claim or expense (including the reasonable cost of investigating or
defending any alleged loss, liability, damages, claim or expense and reasonable
counsel fees incurred in connection therewith), arising by reason of any person
acquiring any shares of the Fund, which may be based upon the Securities Act of
1933 or any other statute or at common law, on account of any wrongful act of
the Principal Underwriter or any of its employees (including any failure to
conform with any requirement of any state or federal law relating to the sale of
such shares) or on the ground that the registration statement or Prospectus, as
from time to time amended and supplemented, includes an untrue statement of a
material fact or omits to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading, insofar as any
such statement or omission was made in reliance upon, and in conformity with
information furnished in writing to the Fund in connection therewith by or on
behalf of the Principal Underwriter, provided, however, that in no case (i) is
the indemnity of the Principal Underwriter in favor of any person indemnified to
be deemed to protect the Fund or any such person against any liability to which
the Fund or any such person would otherwise be subject by reason of willful
misfeasance, bad faith, or gross negligence in the performance of its or his
duties or by reason of its or his reckless disregard of its obligations and
duties under this Agreement, or (ii) is the Principal Underwriter to be liable
under its indemnity agreement contained in this paragraph with respect to any
claim made against the Fund or any person indemnified unless the Trust or such
person, as the case may be, shall have notified the Principal Underwriter in
writing within a reasonable time after the summons or other first legal process
giving information of the nature of the claim shall have been served upon the
Trust, the Fund or upon such person (or after the Trust or such person shall
have received notice of such service on any designated agent), but failure to
notify the Principal Underwriter of any such claim shall not relieve it from any
liability which it may have to the Fund or any person against whom such action
is brought otherwise than on account of its indemnity agreement contained in
this paragraph. The Principal Underwriter shall be entitled to participate, at
its own expense, in the defense, or, if it so elects, to assume the defense of
any suit brought to enforce any such liability, but if the Principal Underwriter
elects to assume the defense, such defense shall be conducted by counsel chosen
by it and satisfactory to the Trust, or to its officers or Trustees, or to any
controlling person or persons, defendant or defendants in the suit. In the event
that the Principal Underwriter elects to assume the defense of any such suit and
retains such counsel, the Fund or such officers or Trustees or controlling
person or persons, defendant or defendants in the suit, shall bear the fees and
expenses of any additional counsel retained by them or the Trust, but, in case
the Principal Underwriter does not elect to assume the defense of any such suit,
it shall reimburse the Fund, any such officers and Trustees or controlling
person or persons, defendant or defendants in such suit, for the reasonable fees
and expenses of any counsel retained by them or the Trust. The Principal
Underwriter agrees promptly to notify the Trust of the commencement of any
litigation or proceedings against it in connection with the issue and sale of
any of the Fund's shares.
Neither the Principal Underwriter nor any financial service firm nor
any other person is authorized by the Trust to give any information or to make
any representations, other than those contained in the Registration Statement or
Prospectus filed with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (as said Registration Statement and
Prospectus may be amended or supplemented from time to time), covering the
shares of the Fund. Neither the Principal Underwriter nor any financial service
firm nor any other person is authorized to act as agent for the Trust or the
Fund in connection with the offering or sale of shares of the Fund to the public
or otherwise. All such sales made by the Principal Underwriter shall be made by
it as principal, for its own account. The Principal Underwriter may, however,
act as agent in connection with the repurchase of shares as provided in
paragraph 6 below, or in connection with "exchanges" between investment
companies for which the Principal Underwriter acts as Principal Underwriter or
for which an affiliate of the Principal Underwriter acts as investment adviser.
5(a). The Fund will pay, or cause to be paid -
(i) all the costs and expenses of the Fund, including fees and
disbursements of its counsel, in connection with the preparation and filing of
any required Registration Statement and/or Prospectus under the Securities Act
of 1933, as amended, covering its shares and all amendments and supplements
thereto, and preparing and mailing periodic reports to shareholders (including
the expense of setting up in type any such Registration Statement, Prospectus or
periodic report);
(ii) the cost of preparing temporary and permanent share
certificates (if any) for shares of the Fund;
(iii) The cost and expenses of delivering to the Principal
Underwriter at its office in Boston, Massachusetts, all shares of the Fund
purchased by it as principal hereunder; and
(iv) all the federal and state (if any) issue and/or transfer
taxes payable upon the issue by or (in the case of treasury shares) transfer
from the Fund to the Principal Underwriter of any and all shares of the Fund
purchased by the Principal Underwriter hereunder.
(b) The Principal Underwriter agrees that, after the Prospectus and
periodic reports have been set up in type, it will bear the expense of printing
and distributing any copies thereof which are to be used in connection with the
offering of shares of the Fund to financial service firms or investors. The
Principal Underwriter further agrees that it will bear the expenses of
preparing, printing and distributing any other literature used by the Principal
Underwriter or furnished by it for use by financial service firms in connection
with the offering of the shares of the Fund for sale to the public and any
expenses of advertising in connection with such offering. The Fund agrees to pay
the expenses of registration and maintaining registration of its shares for sale
under federal and state securities laws, and, if necessary or advisable in
connection therewith, of qualifying the Trust or the Fund as a dealer or broker,
in such states as shall be selected by the Principal Underwriter and the fees
payable to each such state for continuing the qualification therein until the
Principal Underwriter notifies the Trust that it does not wish such
qualification continued.
(c) In addition, the Trust agrees, in accordance with the Fund's
Distribution Plan (the "Plan"), adopted pursuant to Rule 12b-1 under the
Investment Company Act of 1940, as amended (the "1940 Act") with respect to
shares, to make certain payments as follows. The Principal Underwriter shall be
entitled to be paid by the Fund a sales commission equal to an amount not
exceeding 5% of the price received by the Fund for each sale of shares
(excluding reinvestment of dividends and distributions), such payment to be made
in the manner set forth in this paragraph 5. The Principal Underwriter shall
also be entitled to be paid by the Fund a separate distribution fee (calculated
in accordance with paragraph 5(d)), such payment to be made in the manner set
forth and subject to the terms of this paragraph 5.
(d) The sales commissions and distribution fees referred to in
paragraph 5(c) shall be accrued and paid by the Fund in the following manner.
The Fund shall accrue daily an amount calculated at the rate of .75% per annum
of the daily net assets of the Fund, which net assets shall be computed as
described in paragraph 2. The daily amounts so accrued throughout the month
shall be paid to the Principal Underwriter on the last day of each month. The
amount of such daily accrual, as so calculated, shall first be applied and
charged to all unpaid sales commissions, and the balance, if any, shall then be
applied and charged to all unpaid distribution fees. No amount shall be accrued
with respect to any day on which there exist no outstanding uncovered
distribution charges of the Principal Underwriter. The amount of such uncovered
distribution charges shall be calculated daily. For purposes of this
calculation, distribution charges of the Principal Underwriter shall include (a)
the aggregate of all sales commissions which the Principal Underwriter has been
paid pursuant to this paragraph (d) plus all sales commissions which it is
entitled to be paid pursuant to paragraph (d) since inception of this Agreement
through and including the day next preceding the date of calculation, and (b) an
amount equal to the aggregate of all distribution fees referred to below which
the Principal Underwriter has been paid pursuant to this paragraph (d) plus all
such fees which it is entitled to be paid pursuant to paragraph 5(c) since
inception of this Agreement through and including the day next preceding the
date of calculation. From this sum (distribution charges) there shall be
subtracted (i) the aggregate amount paid or payable to the Principal Underwriter
pursuant to this paragraph (d) since inception of this Agreement through and
including the day next preceding the date of calculation and (ii) the aggregate
amount of all contingent deferred sales charges paid or payable to the Principal
Underwriter since inception of this Agreement through and including the day next
preceding the date of calculation, and (iii) the aggregate o all amounts paid or
payable to the Principal Underwriter (or any affiliate thereof) by any party
other than the Fund with respect to the sale of shares of the Fund since
inception of this Agreement through and including the day next preceding the
date of calculation. If the result of such subtraction is a positive amount, a
distribution fee [computed at the rate of 1% per annum above the prime rate
(being the base rate on corporate loans posted by at least 75% of the nation's
30 largest banks) then being reported in the Eastern Edition of The Wall Street
Journal or if such prime rate is not so reported such other rate as may be
designated from time to time by vote or other action of a majority of (i) the
Rule 12b-1 Trustees and (ii) all of the Trustees then in office] shall be
computed on such amount and added to such amount, with the resulting sum
constituting the amount of outstanding uncovered distribution charges of the
Principal Underwriter with respect to such day for all purposes of this
Agreement. If the result of such subtraction is a negative amount, there shall
exist no outstanding uncovered distribution charges of the Principal Underwriter
with respect to such day and no amount shall be accrued or paid to the Principal
Underwriter with respect to such day. The aggregate amounts accrued and paid
pursuant to this paragraph (d) during any fiscal year of the Fund shall not
exceed .75% of the average daily net assets of the Fund for such year.
(e) The Principal Underwriter shall be entitled to receive all
contingent deferred sales charges paid or payable with respect to any day on
which there exist outstanding uncovered distribution charges of the Principal
Underwriter. The Fund shall be entitled to receive all remaining contingent
deferred sales charges paid or payable by shareholders with respect to any day
on which there exist no outstanding uncovered distribution charges of the
Principal Underwriter, provided that no such sales charge which would cause the
Fund to exceed the maximum applicable cap imposed thereon by paragraph (2) of
subsection (d) of Section 26 of Article III of the NASD Rules shall be imposed.
(f) The persons authorized to direct the disposition of monies paid or
payable by the Fund pursuant to the Plan or this Agreement shall be the
President or any Vice President of the Trust. Such persons shall provide to the
Trust's Trustees and the Trustees shall review, at least quarterly, a written
report of the amounts so expended and the purposes for which such expenditures
were made.
(g) In addition to the payments to the Principal Underwriter provided
for in paragraph 5(d), the Fund may make payments of service fees to the
Principal Underwriter, Authorized Firms and other persons. The aggregate of such
payments during any fiscal year of the Fund shall not exceed .25% of the Fund's
average daily net assets for such year.
6. The Trust hereby authorizes the Principal Underwriter to repurchase,
upon the terms and conditions set forth in written instructions given by the
Trust to the Principal Underwriter from time to time, as agent of the Fund and
for its account, such shares of the Fund as may be offered for sale to the Fund
from time to time.
(a) The Principal Underwriter shall notify in writing Investors Bank &
Trust Company, Custodian of the Fund, at the end of each business day, or as
soon thereafter as the repurchases in each pricing period have been compiled, of
the number of shares repurchased for the account of the Fund since the last
previous report, together with the prices at which such repurchases were made,
and upon the request of any officer or Trustee of the Trust shall furnish
similar information with respect to all repurchases made up to the time of the
request on any day.
(b) The Trust reserves the right to suspend or revoke the foregoing
authorization at any time; unless otherwise stated, any such suspension or
revocation shall be effective forthwith upon receipt of notice thereof by an
officer of the Principal Underwriter, by telegraph or by written instrument from
an officer of the Trust duly authorized by its Trustees. In the event that the
authorization of the Principal Underwriter is, by the terms of such notice,
suspended for more than twenty-four hours or until further notice, the
authorization given by this paragraph 6 shall not be revived except by action of
a majority of the Trustees of the Trust.
(c) The Principal Underwriter shall have the right to terminate the
operation of this paragraph 6 upon giving to the Trust thirty (30) days' written
notice thereof.
(d) The Trust agrees to authorize and direct Investors Bank & Trust
Company, Custodian, to pay, for the account of the Fund, the purchase price of
any shares so repurchased against delivery of the certificates in proper form
for transfer to the Fund or for cancellation by the Fund.
(e) The Principal Underwriter shall receive no commission in respect
of any repurchase of shares under the foregoing authorization and appointment as
agent, except for any sales commission, distribution fee or contingent deferred
sales charges payable under paragraph 5.
(f) The Trust agrees that the Fund will reimburse the Principal
Underwriter, from time to time on demand, for any reasonable expenses incurred
in connection with the repurchase of shares of the Fund pursuant to this
paragraph 6.
7. If, at any time during the existence of this Agreement, the Trust
shall deem it necessary or advisable in the best interests of the Fund that any
amendment of this Agreement be made in order to comply with the recommendations
or requirements of the Securities and Exchange Commission or other governmental
authority or to obtain any advantage under Massachusetts or federal tax laws,
and shall notify the Principal Underwriter of the form of amendment which it
deems necessary or advisable and the reasons therefor, and, if the Principal
Underwriter declines to assent to such amendment, the Trust may terminate this
Agreement forthwith by written notice to the Principal Underwriter. If, at any
time during the existence of its agreement upon request by the Principal
Underwriter, the Trust fails (after a reasonable time) to make any changes in
its Declaration of Trust, as amended, or in its methods of doing business which
are necessary in order to comply with any requirement of federal law or
regulations of the Securities and Exchange Commission or of a national
securities association of which the Principal Underwriter is or may be a member,
relating to the sale of the shares of the Fund, the Principal Underwriter may
terminate this Agreement forthwith by written notice to the Trust.
8. In connection with purchases or sales of portfolio securities for
the account of the Fund, neither the Principal Underwriter nor any officer or
director of the Principal Underwriter hall act as a principal. The Principal
Underwriter covenants that it and its officers and directors shall comply with
the provisions of the Trust's By-Laws applicable to them.
9. The Principal Underwriter agrees that it will not take any long or
short positions in the shares of the Fund except as permitted by paragraphs 1
and 6 hereof, and that, so far as it can control the situation, it will prevent
any officer, director or owner or voting common stock of the Principal
Underwriter from taking any long or short position in the shares of the Fund,
except as permitted by the By-Laws of the Trust as from time to time in effect.
10. The term "net asset value" as used in this Agreement with
reference to the shares of the Fund shall have the same meaning as used in the
Declaration of Trust, as amended, and calculated in the manner referred to in
paragraph 2 above.
11. (a) The Principal Underwriter is a corporation in the United
States organized under the laws of Massachusetts and holding membership in the
National Association of Securities Dealers, Inc., a securities association
registered under Section 15A of the Securities Exchange Act of 1934, and during
the life of this Agreement will continue to be so resident in the United States,
so organized and a member in good standing of said Association. The Principal
Underwriter will comply with the Trust's Declaration of Trust and By-Laws, and
the 1940 Act and the rules promulgated thereunder, insofar as they are
applicable to the Principal Underwriter.
(b) The Principal Underwriter shall maintain in the United States
and preserve therein for such period or periods as the Securities and Exchange
Commission shall prescribe by rules and regulations applicable to it as
Principal Underwriter of an open-end investment company registered under the
1940 Act such accounts, books and other documents as are necessary or
appropriate to record its transactions with the Fund. Such accounts, books and
other documents shall be subject at any time and from time to time to such
reasonable periodic, special and other examinations by the Securities and
Exchange Commission or any member or representative thereof as the Securities
and Exchange Commission may prescribe. The Principal Underwriter shall furnish
to the Securities and Exchange Commission within such reasonable time as the
Securities and Exchange Commission may prescribe copies of or extracts from such
records which may be prepared without effort, expense or delay as the Securities
and Exchange Commission may by order require.
12. This Agreement shall continue in force indefinitely until
terminated as in this Agreement above provided, except that:
(a) this Agreement shall remain in effect through and including
April 28, 1994 and shall continue in full force indefinitely thereafter, but
only so long as such continuance after April 28, 1994 is specifically approved
at least annually (i) by the vote of a majority of the Trustees of the Trust who
are not "interested persons" (as defined in Section 2(a)(19) of the 1940 Act) of
the Trust and who have no direct or indirect interest in the operation of the
Plan or this Agreement (the "Rule 12b-1 Trustees") cast in person at a meeting
called for the purpose of voting on such approval, and (ii) by the Trustees of
the Trust or by vote of a majority of the outstanding voting securities (as
defined in Section 2(a)(42) of the 1940 Act) of the Fund;
(b) this Agreement may be terminated at any time by vote of a
majority of the Rule 12b-1 Trustees or by vote of a majority of the outstanding
voting securities of the Fund on not more than (60) sixty days' notice to the
Principal Underwriter. The Principal Underwriter shall be entitled to receive
all contingent deferred sales charges paid or payable with respect to any day
subsequent to the termination of this Agreement;
(c) the Principal Underwriter shall have the right to terminate
this Agreement on six (6) months' written notice thereof given in writing to the
Fund; and
(d) the Trust shall have the right to terminate this Agreement
forthwith in the event that it shall have been established by a court of
competent jurisdiction that the Principal Underwriter or any director or officer
of the Principal Underwriter has taken any action which results in a breach of
the covenants set out in paragraph 8 hereof.
13. In the event of the assignment (as defined in Section 2(a)(4) of
the 1940 Act) of this Agreement by the Principal Underwriter, this Agreement
shall automatically terminate.
14. Any notice under this Agreement shall be in writing, addressed and
delivered, or mailed postage paid, to the other party, at such address as such
other party may designate for the receipt of such notices. Until further notice
to the other party, it is agreed that the record address of the Trust and that
of the Principal Underwriter, shall be 24 Federal Street, Boston, Massachusetts
02110.
15. The services of the Principal Underwriter to the Fund hereunder
are not to be deemed to be exclusive, the Principal Underwriter being free to
(a) render similar services to, and to act as principal underwriter in
connection with the distribution of shares of, other series of the Trust or
investment companies, and (b) engage in other business and activities from time
to time.
16. The Principal Underwriter expressly acknowledges the provision in
the Trust's Declaration of Trust limiting the personal liability of the
shareholders of the Fund or the Trustees of the Trust. The Principal Underwriter
hereby agrees that it shall have recourse to the Trust or the Fund for payment
of claims or obligations as between the Trust or the Fund and the Principal
Underwriter arising out of this Agreement and shall not seek satisfaction from
the shareholders or any shareholder of the Trust or from the Trustees or any
Trustee of the Trust. The Fund shall not be responsible for obligations of any
other series of the Trust.
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement
on this 7th day of June, 1993.
EATON VANCE GROWTH TRUST
(on behalf of EV Marathon Greater
China Growth Fund)
By /s/ James B. Hawkes
--------------------------------
President
EATON VANCE DISTRIBUTORS, INC.
By /s/ H. Day Brigham Jr.
--------------------------------
Vice President
<PAGE>
EXHIBIT 99.6(a)(4)
EATON VANCE GROWTH TRUST
AMENDED DISTRIBUTION AGREEMENT
ON BEHALF OF EV CLASSIC GREATER CHINA GROWTH FUND
AGREEMENT effective as of January 27, 1995 between EATON VANCE GROWTH
TRUST, a Massachusetts business trust having its principal place of business in
Boston in the Commonwealth of Massachusetts, hereinafter called the "Trust", on
behalf of EV Classic Greater China Growth Fund (the "Fund"), and EATON VANCE
DISTRIBUTORS, INC., a Massachusetts corporation having its principal place of
business in said Boston, hereinafter sometimes called the "Principal
Underwriter".
IN CONSIDERATION of the mutual promises and undertakings herein
contained, the parties hereto agree:
1. The Trust grants to the Principal Underwriter the right to purchase
shares of the Fund upon the terms hereinbelow set forth during the term of this
Agreement. While this Agreement is in force, the Principal Underwriter agrees to
use its best efforts to find purchasers for shares of the Fund.
The Principal Underwriter shall have the right to buy from the Fund the
shares needed, but not more than the shares needed (except for clerical errors
and errors of transmission) to fill unconditional orders for shares of the Fund
placed with the Principal Underwriter by financial service firms or investors as
set forth in the current Prospectus relating to shares of the Fund. The price
which the Principal Underwriter shall pay for the shares so purchased shall be
equal to the price paid by investors upon purchasing such shares. The Principal
Underwriter shall notify Investors Bank & Trust Company, Custodian of the Fund
("IBT"), and The Shareholder Services Group, Inc., Transfer Agent of the Fund
("TSSG"), or a successor transfer agent, at the end of each business day, or as
soon thereafter as the orders placed with it have been compiled, of the number
of shares and the prices thereof which the Principal Underwriter is to purchase
as principal for resale. The Principal Underwriter shall take down and pay for
shares ordered from the Fund on or before the eleventh business day (excluding
Saturdays) after the shares have been so ordered.
The right granted to the Principal Underwriter to buy shares from the
Fund shall be exclusive, except that said exclusive right shall not apply to
shares issued in connection with the merger or consolidation of any other
investment company or personal holding company with the Fund or the acquisition
by purchase or otherwise of all (or substantially all) the assets or the
outstanding shares of any such company, by the Fund; nor shall it apply to
shares, if any, issued by the Fund in distribution of income or realized capital
gains of the Fund payable in shares or in cash at the option of the shareholder.
2. The shares may be resold by the Principal Underwriter to or through
financial service firms having agreements with the Principal Underwriter, and to
investors, upon the following terms and conditions.
The public offering price, i.e., the price per share at which the
Principal Underwriter or financial service firm purchasing shares from the
Principal Underwriter may sell shares to the public, shall be equal to the net
asset value at which the Principal Underwriter is to purchase the shares.
The net asset value of shares of the Fund shall be determined by the
Trust or IBT, as the agent of the Fund, as of the close of regular trading on
the New York Stock Exchange on each business day on which said Exchange is open,
or as of such other time on each such business day as may be determined by the
Trustees of the Trust, in accordance with the methodology and procedures for
calculating such net asset value authorized by the Trustees. The Trust may also
cause the net asset value to be determined in substantially the same manner or
estimated in such manner and as of such other time or times as may from time to
time be agreed upon by the Trust and Principal Underwriter. The Trust will
notify the Principal Underwriter each time the net asset value of the Fund's
shares is determined and when such value is so determined it shall be applicable
to transactions as set forth in the current Prospectus and Statement of
Additional Information (hereafter the "Prospectus") relating to the Fund's
shares.
No shares of the Fund shall be sold by the Fund during any period when
the determination of net asset value is suspended pursuant to the Declaration of
Trust, except to the Principal Underwriter, in the manner and upon the terms
above set forth to cover contracts of sale made by the Principal Underwriter
with its customers prior to any such suspension, and except as provided in the
last paragraph of paragraph 1 hereof. The Trust shall also have the right to
suspend the sale of the Fund's shares if in the judgment of the Trust conditions
obtaining at any time render such action advisable. The Principal Underwriter
shall have the right to suspend sales at any time, to refuse to accept or
confirm any order from an investor or financial service firm, or to accept or
confirm any such order in part only, if in the judgment of the Principal
Underwriter such action is in the best interests of the Fund.
3. The Trust agrees that it will, from time to time, but subject to the
necessary approval of the Fund's shareholders, take such steps as may be
necessary to register the Fund's shares under the federal Securities Act of
1933, as amended from time to time, (the "1933 Act"), to the end that there will
be available for sale such number of shares as the Principal Underwriter may
reasonably be expected to sell. The Trust agrees to indemnify and hold harmless
the Principal Underwriter and each person, if any, who controls the Principal
Underwriter within the meaning of Section 15 of the 1933 Act against any loss,
liability, claim, damages or expense (including the reasonable cost of
investigating or defending any alleged loss, liability, claim, damages or
expense and reasonable counsel fees incurred in connection therewith), arising
by reason of any person acquiring any shares of the Fund, which may be based
upon the 1933 Act or on any other statute or at common law, on the ground that
the Registration Statement or Prospectus, as from time to time amended and
supplemented, includes an untrue statement of a material fact or omits to state
a material fact required to be stated therein or necessary in order to make the
statements therein not misleading, unless such statement or omission was made in
reliance upon, and in conformity with, information furnished in writing to the
Trust in connection therewith by or on behalf of the Principal Underwriter;
provided, however, that in no case (i) is the indemnity of the Trust in favor of
the Principal Underwriter and any such controlling person to be deemed to
protect such Principal Underwriter or any such controlling person against any
liability to the Trust or the Fund or its security holders to which such
Principal Underwriter or any such controlling person would otherwise be subject
by reason of willful misfeasance, bad faith, or gross negligence in the
performance of its duties or by reason of its reckless disregard of its
obligations and duties under this Agreement, or (ii) is the Trust or the Fund to
be liable under its indemnity agreement contained in this paragraph with respect
to any claim made against the Principal Underwriter or any such controlling
person unless the Principal Underwriter or any such controlling person, as the
case may be, shall have notified the Trust in writing within a reasonable time
after the summons or other first legal process giving information of the nature
of the claim shall have been served upon the Principal Underwriter or such
controlling person (or after such Principal Underwriter or such controlling
person shall have received notice of such service on any designated agent), but
failure to notify the Trust of any such claim shall not relieve it from any
liability which the Fund may have to the person against whom such action is
brought otherwise than on account of its indemnity agreement contained in this
paragraph. The Trust shall be entitled to participate, at the expense of the
Fund, in the defense, or, if the Trust so elects, to assume the defense of any
suit brought to enforce any such liability, but if the Trust elects to assume
the defense, such defense shall be conducted by counsel chosen by it and
satisfactory to the Principal Underwriter or controlling person or persons,
defendant or defendants in the suit. In the event the Trust elects to assume the
defense of any such suit and retains such counsel, the Principal Underwriter or
controlling person or persons, defendant or defendants in the suit, shall bear
the fees and expenses of any additional counsel retained by them, but, in case
the Trust does not elect to assume the defense of any such suit, the Fund shall
reimburse the Principal Underwriter or controlling person or persons, defendant
or defendants in the suit, for the reasonable fees and expenses of any counsel
retained by them. The Trust agrees promptly to notify the Principal Underwriter
of the commencement of any litigation or proceedings against it or any of its
officers or Trustees in connection with the issuance or sale of any of the
Fund's shares.
4. The Principal Underwriter covenants and agrees that, in selling the
shares of the Fund, it will use its best efforts in all respects duly to conform
with the requirements of all state and federal laws relating to the sale of such
shares, and will indemnify and hold harmless the Trust and each of its Trustees
and officers and each person, if any, who controls the Trust within the meaning
of Section 15 of the 1933 Act, against any loss, liability, damages, claim or
expense (including the reasonable cost of investigating or defending any alleged
loss, liability, damages, claim or expense and reasonable counsel fees incurred
in connection therewith), arising by reason of any person acquiring any shares
of the Fund, which may be based upon the 1933 Act or any other statute or at
common law, on account of any wrongful act of the Principal Underwriter or any
of its employees (including any failure to conform with any requirement of any
state or federal law relating to the sale of such shares) or on the ground that
the Registration Statement or Prospectus, as from time to time amended and
supplemented, includes an untrue statement of a material fact or omits to state
a material fact required to be stated therein or necessary in order to make the
statements therein not misleading, insofar as any such statement or omission was
made in reliance upon, and in conformity with information furnished in writing
to the Fund in connection therewith by or on behalf of the Principal
Underwriter, provided, however, that in no case (i) is the indemnity of the
Principal Underwriter in favor of any person indemnified to be deemed to protect
the Fund or any such person against any liability to which the Fund or any such
person would otherwise be subject by reason of willful misfeasance, bad faith,
or gross negligence in the performance of its or his duties or by reason of its
or his reckless disregard of its obligations and duties under this Agreement, or
(ii) is the Principal Underwriter to be liable under its indemnity agreement
contained in this paragraph with respect to any claim made against the Fund or
any person indemnified unless the Trust or such person, as the case may be,
shall have notified the Principal Underwriter in writing within a reasonable
time after the summons or other first legal process giving information of the
nature of the claim shall have been served upon the Trust, the Fund or upon such
person (or after the Trust or such person shall have received notice of such
service on any designated agent), but failure to notify the Principal
Underwriter of any such claim shall not relieve it from any liability which it
may have to the Fund or any person against whom such action is brought otherwise
than on account of its indemnity agreement contained in this paragraph. The
Principal Underwriter shall be entitled to participate, at its own expense, in
the defense, or, if it so elects, to assume the defense of any suit brought to
enforce any such liability, but if the Principal Underwriter elects to assume
the defense, such defense shall be conducted by counsel chosen by it and
satisfactory to the Trust, or to its officers or Trustees, or to any controlling
person or persons, defendant or defendants in the suit. In the event that the
Principal Underwriter elects to assume the defense of any such suit and retains
such counsel, the Fund or such officers or Trustees or controlling person or
persons, defendant or defendants in the suit, shall bear the fees and expenses
of any additional counsel retained by them or the Trust, but, in case the
Principal Underwriter does not elect to assume the defense of any such suit, it
shall reimburse the Fund, any such officers and Trustees or controlling person
or persons, defendant or defendants in such suit, for the reasonable fees and
expenses of any counsel retained by them or the Trust. The Principal Underwriter
agrees promptly to notify the Trust of the commencement of any litigation or
proceedings against it in connection with the issue and sale of any of the
Fund's shares.
Neither the Principal Underwriter nor any financial service firm nor
any other person is authorized by the Trust to give any information or to make
any representations, other than those contained in the Registration Statement or
Prospectus filed with the Securities and Exchange Commission (the "Commission")
under the 1933 Act, (as said Registration Statement and Prospectus may be
amended or supplemented from time to time), covering the shares of the Fund.
Neither the Principal Underwriter nor any financial service firm nor any other
person is authorized to act as agent for the Trust or the Fund in connection
with the offering or sale of shares of the Fund to the public or otherwise. All
such sales made by the Principal Underwriter shall be made by it as principal,
for its own account. The Principal Underwriter may, however, act as agent in
connection with the repurchase of shares as provided in paragraph 6 below, or in
connection with "exchanges" between investment companies for which the Principal
Underwriter acts as Principal Underwriter or for which an affiliate of the
Principal Underwriter acts as investment adviser.
5(a). The Fund will pay, or cause to be paid -
(i) all the costs and expenses of the Fund, including fees and
disbursements of its counsel, in connection with the preparation and filing of
any required Registration Statement and/or Prospectus under the 1933 Act, or the
Investment Company Act of 1940, as amended from time to time, (the "1940 Act")
covering its shares and all amendments and supplements thereto, and preparing
and mailing periodic reports to shareholders (including the expense of setting
up in type any such Registration Statement, Prospectus or periodic report);
(ii) the cost of preparing temporary and permanent share
certificates (if any) for shares of the Fund;
(iii) the cost and expenses of delivering to the Principal
Underwriter at its office in Boston, Massachusetts, all shares of the Fund
purchased by it as principal hereunder; and
(iv) all the federal and state (if any) issue and/or transfer
taxes payable upon the issue by or (in the case of treasury shares) transfer
from the Fund to the Principal Underwriter of any and all shares of the Fund
purchased by the Principal Underwriter hereunder.
(b) The Principal Underwriter agrees that, after the Prospectus and
periodic reports have been set up in type, it will bear the expense of printing
and distributing any copies thereof which are to be used in connection with the
offering of shares of the Fund to financial service firms or investors. The
Principal Underwriter further agrees that it will bear the expenses of
preparing, printing and distributing any other literature used by the Principal
Underwriter or furnished by it for use by financial service firms in connection
with the offering of the shares of the Fund for sale to the public and any
expenses of advertising in connection with such offering. The Fund agrees to pay
the expenses of registration and maintaining registration of its shares for sale
under federal and state securities laws, and, if necessary or advisable in
connection therewith, of qualifying the Trust or the Fund as a dealer or broker,
in such states as shall be selected by the Principal Underwriter and the fees
payable to each such state for continuing the qualification therein until the
Principal Underwriter notifies the Trust that it does not wish such
qualification continued.
(c) In addition, the Trust agrees, in accordance with the Fund's
Amended Distribution Plan (the "Plan"), adopted pursuant to Rule 12b-1 under the
1940 Act with respect to shares, to make certain payments as follows. The
Principal Underwriter shall be entitled to be paid by the Fund a sales
commission equal to an amount not exceeding 6.25% of the price received by the
Fund for each sale of shares (excluding reinvestment of dividends and
distributions), such payment to be made in the manner set forth in this
paragraph 5. The Principal Underwriter shall also be entitled to be paid by the
Fund a separate distribution fee (calculated in accordance with paragraph 5(d)),
such payment to be made in the manner set forth and subject to the terms of this
paragraph 5.
(d) The sales commissions and distribution fees referred to in
paragraph 5(c) shall be accrued and paid by the Fund in the following manner.
The Fund shall accrue daily an amount calculated at the rate of .75% per annum
of the daily net assets of the Fund, which net assets shall be computed as
described in paragraph 2. The daily amounts so accrued throughout the month
shall be paid to the Principal Underwriter on the last day of each month. The
amount of such daily accrual, as so calculated, shall first be applied and
charged to all unpaid sales commissions, and the balance, if any, shall then be
applied and charged to all unpaid distribution fees. No amount shall be accrued
with respect to any day on which there exist no outstanding uncovered
distribution charges of the Principal Underwriter. The amount of such uncovered
distribution charges shall be calculated daily. For purposes of this
calculation, distribution charges of the Principal Underwriter shall include (a)
the aggregate of all sales commissions which the Principal Underwriter has been
paid pursuant to this paragraph (d) (and pursuant to paragraph (d) of the
Original Agreement) plus all sales commissions which it is entitled to be paid
pursuant to paragraph 5(c) (and pursuant to paragraph 5(c) of the Original
Agreement) since inception of the Original Agreement through and including the
day next preceding the date of calculation, and (b) an amount equal to the
aggregate of all distribution fees referred to below which the Principal
Underwriter has been paid pursuant to this paragraph (d) (and pursuant to
paragraph (d) of the Original Agreement) plus all such fees which it is entitled
to be paid pursuant to paragraph 5(c) (and pursuant to paragraph 5(c) of the
Original Agreement) since inception of the Original Agreement through and
including the day next preceding the date of calculation. From this sum
(distribution charges) there shall be subtracted (i) the aggregate amount paid
or payable to the Principal Underwriter pursuant to this paragraph (d) (and
pursuant to paragraph (d) of the Original Agreement) since inception of the
Original Agreement through and including the day next preceding the date of
calculation, (ii) the aggregate amount of all contingent deferred sales charges
paid or payable to the Principal Underwriter since inception of the Original
Agreement through and including the day next preceding the date of calculation,
and (iii) the aggregate of all amounts paid or payable to the Principal
Underwriter (or any affiliate thereof) by any party other than the Fund with
respect to the sale of shares of the Fund since inception of the Original
Agreement through and including the day next preceding the date of calculation.
If the result of such subtraction is a positive amount, a distribution fee
[computed at the rate of 1% per annum above the prime rate (being the base rate
on corporate loans posted by at least 75% of the nation's 30 largest banks) then
being reported in the Eastern Edition of The Wall Street Journal or if such
prime rate is not so reported such other rate as may be designated from time to
time by vote or other action of a majority of (i) those Trustees of the Trust
who are not "interested persons" of the Trust (as defined in the 1940 Act) and
have no direct or indirect financial interest in the operation of the Plan or
any agreements related to it (the "Rule 12b-1 Trustees") and (ii) all of the
Trustees then in office] shall be computed on such amount and added to such
amount, with the resulting sum constituting the amount of outstanding uncovered
distribution charges of the Principal Underwriter with respect to such day for
all purposes of this Agreement. If the result of such subtraction is a negative
amount, there shall exist no outstanding uncovered distribution charges of the
Principal Underwriter with respect to such day and no amount shall be accrued or
paid to the Principal Underwriter with respect to such day. The aggregate
amounts accrued and paid pursuant to this paragraph (d) during any fiscal year
of the Fund shall not exceed .75% of the average daily net assets of the Fund
for such year.
(e) The Principal Underwriter shall be entitled to receive all
contingent deferred sales charges paid or payable with respect to any day on
which there exist outstanding uncovered distribution charges of the Principal
Underwriter. The Fund shall be entitled to receive all remaining contingent
deferred sales charges paid or payable by shareholders with respect to any day
on which there exist no outstanding uncovered distribution charges of the
Principal Underwriter, provided that no such sales charge which would cause the
Fund to exceed the maximum applicable cap imposed thereon by paragraph (2) of
subsection (d) of Section 26 of Article III of the Rules of Fair Practice of the
National Association of Securities Dealers, Inc. shall be imposed.
(f) The persons authorized to direct the disposition of monies paid or
payable by the Fund pursuant to the Plan or this Agreement shall be the
President or any Vice President of the Trust. Such persons shall provide to the
Trust's Trustees and the Trustees shall review, at least quarterly, a written
report of the amounts so expended and the purposes for which such expenditures
were made.
(g) In addition to the payments to the Principal Underwriter provided
for in paragraph 5(d), the Fund may make payments of service fees to the
Principal Underwriter, Authorized Firms and other persons. The aggregate of such
payments during any fiscal year of the Fund shall not exceed .25% of the Fund's
average daily net assets for such year.
6. The Trust hereby authorizes the Principal Underwriter to repurchase,
upon the terms and conditions set forth in written instructions given by the
Trust to the Principal Underwriter from time to time, as agent of the Fund and
for its account, such shares of the Fund as may be offered for sale to the Fund
from time to time.
(a) The Principal Underwriter shall notify in writing IBT and TSSG at
the end of each business day, or as soon thereafter as the repurchases in each
pricing period have been compiled, of the number of shares repurchased for the
account of the Fund since the last previous report, together with the prices at
which such repurchases were made, and upon the request of any officer or Trustee
of the Trust shall furnish similar information with respect to all repurchases
made up to the time of the request on any day.
(b) The Trust reserves the right to suspend or revoke the foregoing
authorization at any time; unless otherwise stated, any such suspension or
revocation shall be effective forthwith upon receipt of notice thereof by an
officer of the Principal Underwriter, by telegraph or by written instrument from
an officer of the Trust duly authorized by its Trustees. In the event that the
authorization of the Principal Underwriter is, by the terms of such notice,
suspended for more than twenty-four hours or until further notice, the
authorization given by this paragraph 6 shall not be revived except by action of
a majority of the Trustees of the Trust.
(c) The Principal Underwriter shall have the right to terminate the
operation of this paragraph 6 upon giving to the Trust thirty (30) days' written
notice thereof.
(d) The Trust agrees to authorize and direct IBT to pay, for the
account of the Fund, the purchase price of any shares so repurchased against
delivery of the certificates in proper form for transfer to the Fund or for
cancellation by the Fund.
(e) The Principal Underwriter shall receive no commission in respect of
any repurchase of shares under the foregoing authorization and appointment as
agent, except for any sales commission, distribution fee or contingent deferred
sales charges payable under paragraph 5.
(f) The Trust agrees that the Fund will reimburse the Principal
Underwriter, from time to time on demand, for any reasonable expenses incurred
in connection with the repurchase of shares of the Fund pursuant to this
paragraph 6.
7. If, at any time during the existence of this Agreement, the Trust
shall deem it necessary or advisable in the best interests of the Fund that any
amendment of this Agreement be made in order to comply with the recommendations
or requirements of the Commission or other governmental authority or to obtain
any advantage under Massachusetts or Federal tax laws, and shall notify the
Principal Underwriter of the form of amendment which it deems necessary or
advisable and the reasons therefor, and, if the Principal Underwriter declines
to assent to such amendment, the Trust may terminate this Agreement forthwith by
written notice to the Principal Underwriter. If, at any time during the
existence of its agreement upon request by the Principal Underwriter, the Trust
fails (after a reasonable time) to make any changes in its Declaration of Trust,
as amended, or in its methods of doing business which are necessary in order to
comply with any requirement of Federal law or regulations of the Commission or
of a national securities association of which the Principal Underwriter is or
may be a member, relating to the sale of the shares of the Fund, the Principal
Underwriter may terminate this Agreement forthwith by written notice to the
Trust.
8. The term "net asset value" as used in this Agreement with reference
to the shares of the Fund shall have the same meaning as used in the Declaration
of Trust, as amended, and calculated in the manner referred to in paragraph 2
above.
9(a). The Principal Underwriter is a corporation in the United States
organized under the laws of Massachusetts and holding membership in the National
Association of Securities Dealers, Inc., a securities association registered
under Section 15A of the Securities Exchange Act of 1934, as amended from time
to time, and during the life of this Agreement will continue to be so resident
in the United States, so organized and a member in good standing of said
Association. The Principal Underwriter will comply with the Trust's Declaration
of Trust and By-Laws, and the 1940 Act and the rules promulgated thereunder,
insofar as they are applicable to the Principal Underwriter.
(b) The Principal Underwriter shall maintain in the United States and
preserve therein for such period or periods as the Commission shall prescribe by
rules and regulations applicable to it as Principal Underwriter of an open-end
investment company registered under the 1940 Act such accounts, books and other
documents as are necessary or appropriate to record its transactions with the
Fund. Such accounts, books and other documents shall be subject at any time and
from time to time to such reasonable periodic, special and other examinations by
the Commission or any member or representative thereof as the Commission may
prescribe. The Principal Underwriter shall furnish to the Commission within such
reasonable time as the Commission may prescribe copies of or extracts from such
records which may be prepared without effort, expense or delay as the Commission
may by order require.
10. This Agreement shall continue in force indefinitely until
terminated as in this Agreement above provided, except that:
(a) this Agreement shall remain in effect through and including April
28, 1995, and shall continue in full force and effect indefinitely thereafter,
but only so long as such continuance is specifically approved at least annually
(i) by the vote of a majority of the Rule 12b-1 Trustees cast in person at a
meeting called for the purpose of voting on such approval, and (ii) by the
Trustees of the Trust or by vote of a majority of the outstanding voting
securities of the Fund;
(b) this Agreement may be terminated at any time by vote of a majority
of the Rule 12b-1 Trustees or by vote of a majority of the outstanding voting
securities of the Fund on not more than sixty (60) days' notice to the Principal
Underwriter. The Principal Underwriter shall be entitled to receive all
contingent deferred sales charges paid or payable with respect to any day
subsequent to the termination of this Agreement;
(c) the Principal Underwriter shall have the right to terminate this
Agreement on six (6) months' written notice thereof given in writing to the
Fund; and
(d) the Trust shall have the right to terminate this Agreement
forthwith in the event that it shall have been established by a court of
competent jurisdiction that the Principal Underwriter or any director or officer
of the Principal Underwriter has taken any action which results in a breach of
the covenants set out in paragraph 9 hereof.
11. In the event of the assignment of this Agreement by the Principal
Underwriter, this Agreement shall automatically terminate.
12. Any notice under this Agreement shall be in writing, addressed and
delivered, or mailed postage paid, to the other party, at such address as such
other party may designate for the receipt of such notices. Until further notice
to the other party, it is agreed that the record address of the Trust and that
of the Principal Underwriter, shall be 24 Federal Street, Boston, Massachusetts
02110.
13. The services of the Principal Underwriter to the Fund hereunder are
not to be deemed to be exclusive, the Principal Underwriter being free to (a)
render similar service to, and to act as principal underwriter in connection
with the distribution of shares of, other series of the Trust or other
investment companies, and (b) engage in other business and activities from time
to time.
14. The terms "vote of a majority of the outstanding voting
securities," "assignment" and "interested persons," when used herein, shall have
the respective meanings specified in the 1940 Act, subject, however, to such
exemptions as may be granted by the Commission by any rule, regulation or order.
15. The Principal Underwriter expressly acknowledges the provision in
the Trust's Declaration of Trust limiting the personal liability of the
shareholders of the Fund or the Trustees of the Trust. The Principal Underwriter
hereby agrees that it shall have recourse to the Trust or the Fund for payment
of claims or obligations as between the Trust or the Fund and the Principal
Underwriter arising out of this Agreement and shall not seek satisfaction from
the shareholders or any shareholder of the Trust or from the Trustees or any
Trustee of the Trust. The Fund shall not be responsible for obligations of any
other series of the Trust.
16. All references in this Agreement to the "Original Agreement" shall
mean the Distribution Agreement dated December 17, 1993 between the Trust on
behalf of the Fund and the Principal Underwriter.
17. This Agreement shall amend, replace and be substituted for the
Original Agreement as of the opening of business on January 30, 1995, and this
Agreement shall be effective as of such time. The outstanding uncovered
distribution charges of the Principal Underwriter calculated under the Original
Agreement as of the close of business on January 29, 1995 shall be the
outstanding uncovered distribution charges of the Principal Underwriter
calculated under this Agreement as of the opening of business on January 30,
1995.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement
on the 27th day of January, 1995.
EATON VANCE GROWTH TRUST
(on behalf of EV CLASSIC GREATER CHINA
GROWTH FUND)
By /s/ James B. Hawkes
-----------------------------------
President
EATON VANCE DISTRIBUTORS INC.
By /s/ Wharton P. Whitaker
-----------------------------------
President
<PAGE>
EXHIBIT 99.6(a)(5)
EATON VANCE GROWTH TRUST
AMENDED DISTRIBUTION AGREEMENT
ON BEHALF OF EV CLASSIC GROWTH FUND
AGREEMENT effective as of January 27, 1995 between EATON VANCE GROWTH
TRUST, a Massachusetts business trust having its principal place of business in
Boston in the Commonwealth of Massachusetts, hereinafter called the "Trust", on
behalf of EV Classic Growth Fund (the "Fund"), and EATON VANCE DISTRIBUTORS,
INC., a Massachusetts corporation having its principal place of business in said
Boston, hereinafter sometimes called the "Principal Underwriter".
IN CONSIDERATION of the mutual promises and undertakings herein
contained, the parties hereto agree:
1. The Trust grants to the Principal Underwriter the right to purchase
shares of the Fund upon the terms hereinbelow set forth during the term of this
Agreement. While this Agreement is in force, the Principal Underwriter agrees to
use its best efforts to find purchasers for shares of the Fund.
The Principal Underwriter shall have the right to buy from the Fund the
shares needed, but not more than the shares needed (except for clerical errors
and errors of transmission) to fill unconditional orders for shares of the Fund
placed with the Principal Underwriter by financial service firms or investors as
set forth in the current Prospectus relating to shares of the Fund. The price
which the Principal Underwriter shall pay for the shares so purchased shall be
equal to the price paid by investors upon purchasing such shares. The Principal
Underwriter shall notify Investors Bank & Trust Company, Custodian of the Fund
("IBT"), and The Shareholder Services Group, Inc., Transfer Agent of the Fund
("TSSG"), or a successor transfer agent, at the end of each business day, or as
soon thereafter as the orders placed with it have been compiled, of the number
of shares and the prices thereof which the Principal Underwriter is to purchase
as principal for resale. The Principal Underwriter shall take down and pay for
shares ordered from the Fund on or before the eleventh business day (excluding
Saturdays) after the shares have been so ordered.
The right granted to the Principal Underwriter to buy shares from the
Fund shall be exclusive, except that said exclusive right shall not apply to
shares issued in connection with the merger or consolidation of any other
investment company or personal holding company with the Fund or the acquisition
by purchase or otherwise of all (or substantially all) the assets or the
outstanding shares of any such company, by the Fund; nor shall it apply to
shares, if any, issued by the Fund in distribution of income or realized capital
gains of the Fund payable in shares or in cash at the option of the shareholder.
2. The shares may be resold by the Principal Underwriter to or through
financial service firms having agreements with the Principal Underwriter, and to
investors, upon the following terms and conditions.
The public offering price, i.e., the price per share at which the
Principal Underwriter or financial service firm purchasing shares from the
Principal Underwriter may sell shares to the public, shall be equal to the net
asset value at which the Principal Underwriter is to purchase the shares.
The net asset value of shares of the Fund shall be determined by the
Trust or IBT, as the agent of the Fund, as of the close of regular trading on
the New York Stock Exchange on each business day on which said Exchange is open,
or as of such other time on each such business day as may be determined by the
Trustees of the Trust, in accordance with the methodology and procedures for
calculating such net asset value authorized by the Trustees. The Trust may also
cause the net asset value to be determined in substantially the same manner or
estimated in such manner and as of such other time or times as may from time to
time be agreed upon by the Trust and Principal Underwriter. The Trust will
notify the Principal Underwriter each time the net asset value of the Fund's
shares is determined and when such value is so determined it shall be applicable
to transactions as set forth in the current Prospectus and Statement of
Additional Information (hereafter the "Prospectus") relating to the Fund's
shares.
No shares of the Fund shall be sold by the Fund during any period when
the determination of net asset value is suspended pursuant to the Declaration of
Trust, except to the Principal Underwriter, in the manner and upon the terms
above set forth to cover contracts of sale made by the Principal Underwriter
with its customers prior to any such suspension, and except as provided in the
last paragraph of paragraph 1 hereof. The Trust shall also have the right to
suspend the sale of the Fund's shares if in the judgment of the Trust conditions
obtaining at any time render such action advisable. The Principal Underwriter
shall have the right to suspend sales at any time, to refuse to accept or
confirm any order from an investor or financial service firm, or to accept or
confirm any such order in part only, if in the judgment of the Principal
Underwriter such action is in the best interests of the Fund.
3. The Trust agrees that it will, from time to time, but subject to
the necessary approval of the Fund's shareholders, take such steps as may be
necessary to register the Fund's shares under the federal of the Securities Act
of 1933, as amended from time to time, (the "1933 Act"), to the end that there
will be available for sale such number of shares as the Principal Underwriter
may reasonably be expected to sell. The Trust agrees to indemnify and hold
harmless the Principal Underwriter and each person, if any, who controls the
Principal Underwriter within the meaning of Section 15 of the 1933 Act against
any loss, liability, claim, damages or expense (including the reasonable cost of
investigating or defending any alleged loss, liability, claim, damages or
expense and reasonable counsel fees incurred in connection therewith), arising
by reason of any person acquiring any shares of the Fund, which may be based
upon the 1933 Act or on any other statute or at common law, on the ground that
the Registration Statement or Prospectus, as from time to time amended and
supplemented, includes an untrue statement of a material fact or omits to state
a material fact required to be stated therein or necessary in order to make the
statements therein not misleading, unless such statement or omission was made in
reliance upon, and in conformity with, information furnished in writing to the
Trust in connection therewith by or on behalf of the Principal Underwriter;
provided, however, that in no case (i) is the indemnity of the Trust in favor of
the Principal Underwriter and any such controlling person to be deemed to
protect such Principal Underwriter or any such controlling person against any
liability to the Trust or the Fund or its security holders to which such
Principal Underwriter or any such controlling person would otherwise be subject
by reason of willful misfeasance, bad faith, or gross negligence in the
performance of its duties or by reason of its reckless disregard of its ob
ligations and duties under this Agreement, or (ii) is the Trust or the Fund to
be liable under its indemnity agreement contained in this paragraph with respect
to any claim made against the Principal Underwriter or any such controlling
person unless the Principal Underwriter or any such controlling person, as the
case may be, shall have notified the Trust in writing within a reasonable time
after the summons or other first legal process giving information of the nature
of the claim shall have been served upon the Principal Underwriter or such
controlling person (or after such Principal Underwriter or such controlling
person shall have received notice of such service on any designated agent), but
failure to notify the Trust of any such claim shall not relieve it from any
liability which the Fund may have to the person against whom such action is
brought otherwise than on account of its indemnity agreement contained in this
paragraph. The Trust shall be entitled to participate, at the expense of the
Fund, in the defense, or, if the Trust so elects, to assume the defense of any
suit brought to enforce any such liability, but if the Trust elects to assume
the defense, such defense shall be conducted by counsel chosen by it and
satisfactory to the Principal Underwriter or controlling person or persons,
defendant or defendants in the suit. In the event the Trust elects to assume the
defense of any such suit and retains such counsel, the Principal Underwriter or
controlling person or persons, defendant or defendants in the suit, shall bear
the fees and expenses of any additional counsel retained by them, but, in case
the Trust does not elect to assume the defense of any such suit, the Fund shall
reimburse the Principal Underwriter or controlling person or persons, defendant
or defendants in the suit, for the reasonable fees and expenses of any counsel
retained by them. The Trust agrees promptly to notify the Principal Underwriter
of the commencement of any litigation or proceedings against it or any of its
officers or Trustees in connection with the issuance or sale of any of the
Fund's shares.
4. The Principal Underwriter covenants and agrees that, in selling the
shares of the Fund, it will use its best efforts in all respects duly to conform
with the requirements of all state and federal laws relating to the sale of such
shares, and will indemnify and hold harmless the Trust and each of its Trustees
and officers and each person, if any, who controls the Trust within the meaning
of Section 15 of the 1933 Act, against any loss, liability, damages, claim or
expense (including the reasonable cost of investigating or defending any alleged
loss, liability, damages, claim or expense and reasonable counsel fees incurred
in connection therewith), arising by reason of any person acquiring any shares
of the Fund, which may be based upon the 1933 Act or any other statute or at
common law, on account of any wrongful act of the Principal Underwriter or any
of its employees (including any failure to conform with any requirement of any
state or federal law relating to the sale of such shares) or on the ground that
the Registration Statement or Prospectus, as from time to time amended and
supplemented, includes an untrue statement of a material fact or omits to state
a material fact required to be stated therein or necessary in order to make the
statements therein not misleading, insofar as any such statement or omission was
made in reliance upon, and in conformity with information furnished in writing
to the Fund in connection therewith by or on behalf of the Principal
Underwriter, provided, however, that in no case (i) is the indemnity of the
Principal Underwriter in favor of any person indemnified to be deemed to protect
the Fund or any such person against any liability to which the Fund or any such
person would otherwise be subject by reason of willful misfeasance, bad faith,
or gross negligence in the performance of its or his duties or by reason of its
or his reckless disregard of its obligations and duties under this Agreement, or
(ii) is the Principal Underwriter to be liable under its indemnity agreement
contained in this paragraph with respect to any claim made against the Fund or
any person indemnified unless the Trust or such person, as the case may be,
shall have notified the Principal Underwriter in writing within a reasonable
time after the summons or other first legal process giving information of the
nature of the claim shall have been served upon the Trust, the Fund or upon such
person (or after the Trust or such person shall have received notice of such
service on any designated agent), but failure to notify the Principal
Underwriter of any such claim shall not relieve it from any liability which it
may have to the Fund or any person against whom such action is brought otherwise
than on account of its indemnity agreement contained in this paragraph. The
Principal Underwriter shall be entitled to participate, at its own expense, in
the defense, or, if it so elects, to assume the defense of any suit brought to
enforce any such liability, but if the Principal Underwriter elects to assume
the defense, such defense shall be conducted by counsel chosen by it and
satisfactory to the Trust, or to its officers or Trustees, or to any controlling
person or persons, defendant or defendants in the suit. In the event that the
Principal Underwriter elects to assume the defense of any such suit and retains
such counsel, the Fund or such officers or Trustees or controlling person or
persons, defendant or defendants in the suit, shall bear the fees and expenses
of any additional counsel retained by them or the Trust, but, in case the
Principal Underwriter does not elect to assume the defense of any such suit, it
shall reimburse the Fund, any such officers and Trustees or controlling person
or persons, defendant or defendants in such suit, for the reasonable fees and
expenses of any counsel retained by them or the Trust. The Principal Underwriter
agrees promptly to notify the Trust of the commencement of any litigation or
proceedings against it in connection with the issue and sale of any of the
Fund's shares.
Neither the Principal Underwriter nor any financial service firm nor
any other person is authorized by the Trust to give any information or to make
any representations, other than those contained in the Registration Statement or
Prospectus filed with the Securities and Exchange Commission (the "Commission")
under the 1933 Act, (as said Registration Statement and Prospectus may be
amended or supplemented from time to time), covering the shares of the Fund.
Neither the Principal Underwriter nor any financial service firm nor any other
person is authorized to act as agent for the Trust or the Fund in connection
with the offering or sale of shares of the Fund to the public or otherwise. All
such sales made by the Principal Underwriter shall be made by it as principal,
for its own account. The Principal Underwriter may, however, act as agent in
connection with the repurchase of shares as provided in paragraph 6 below, or in
connection with "exchanges" between investment companies for which the Principal
Underwriter acts as Principal Underwriter or for which an affiliate of the
Principal Underwriter acts as investment adviser.
5(a). The Fund will pay, or cause to be paid -
(i) all the costs and expenses of the Fund, including fees
and disbursements of its counsel, in connection with the preparation and filing
of any required Registration Statement and/or Prospectus under the 1933 Act, or
the Investment Company Act of 1940, as amended from time to time, (the "1940
Act") covering its shares and all amendments and supplements thereto, and
preparing and mailing periodic reports to shareholders (including the expense of
setting up in type any such Registration Statement, Prospectus or periodic
report);
(ii) the cost of preparing temporary and permanent share
certificates (if any) for shares of the Fund;
(iii) the cost and expenses of delivering to the Principal
Underwriter at its office in Boston, Massachusetts, all shares of the Fund
purchased by it as principal hereunder; and
(iv) all the federal and state (if any) issue and/or
transfer taxes payable upon the issue by or (in the case of treasury shares)
transfer from the Fund to the Principal Underwriter of any and all shares of the
Fund purchased by the Principal Underwriter hereunder.
(b) The Principal Underwriter agrees that, after the Prospectus and
periodic reports have been set up in type, it will bear the expense of printing
and distributing any copies thereof which are to be used in set connection with
the offering of shares of the Fund to financial service firms or investors. The
Principal Underwriter further agrees that it will bear the expenses of
preparing, printing and distributing any other literature used by the Principal
Underwriter or furnished by it for use by financial service firms in connection
with the offering of the shares of the Fund for sale to the public and any
expenses of advertising in connection with such offering. The Fund agrees to pay
the expenses of registration and maintaining registration of its shares for sale
under federal and state securities laws, and, if necessary or advisable in
connection therewith, of qualifying the Trust or the Fund as a dealer or broker,
in such states as shall be selected by the Principal Underwriter and the fees
payable to each such state for continuing the qualification therein until the
Principal Underwriter notifies the Trust that it does not wish such
qualification continued.
(c) In addition, the Trust agrees, in accordance with the Fund's
Amended Distribution Plan (the "Plan"), adopted pursuant to Rule 12b-1 under the
1940 Act with respect to shares, to make certain payments as follows. The
Principal Underwriter shall be entitled to be paid by the Fund a sales
commission equal to an amount not exceeding 6.25% of the price received by the
Fund for each sale of shares (excluding reinvestment of dividends and
distributions), such payment to be made in the manner set forth in this
paragraph 5. The Principal Underwriter shall also be entitled to be paid by the
Fund a separate distribution fee (calculated in accordance with paragraph 5(d)),
such payment to be made in the manner set forth and subject to the terms of this
paragraph 5.
(d) The sales commissions and distribution fees referred to in
paragraph 5(c) shall be accrued and paid by the Fund in the following manner.
The Fund shall accrue daily an amount calculated at the rate of .75% per annum
of the daily net assets of the Fund, which net assets shall be computed as
described in paragraph 2. The daily amounts so accrued throughout the month
shall be paid to the Principal Underwriter on the last day of each month. The
amount of such daily accrual, as so calculated, shall first be applied and
charged to all unpaid sales commissions, and the balance, if any, shall then be
applied and charged to all unpaid distribution fees. No amount shall be accrued
with respect to any day on which there exist no outstanding uncovered
distribution charges of the Principal Underwriter. The amount of such uncovered
distribution charges shall be calculated daily. For purposes of this
calculation, distribution charges of the Principal Underwriter shall include (a)
the aggregate of all sales commissions which the Principal Underwriter has been
paid pursuant to this paragraph (d) (and pursuant to paragraph (d) of the
Original Agreement) plus all sales commissions which it is entitled to be paid
pursuant to paragraph 5(c) (and pursuant to paragraph 5(c) of the Original
Agreement) since inception of the Original Agreement through and including the
day next preceding the date of calculation, and (b) an amount equal to the
aggregate of all distribution fees referred to below which the Principal
Underwriter has been paid pursuant to this paragraph (d) (and pursuant to
paragraph (d) of the Original Agreement) plus all such fees which it is entitled
to be paid pursuant to paragraph 5(c) (and pursuant to paragraph 5(c) of the
Original Agreement) since inception of the Original Agreement through and
including the day next preceding the date of calculation. From this sum
(distribution charges) there shall be subtracted (i) the aggregate amount paid
or payable to the Principal Underwriter pursuant to this paragraph (d) (and
pursuant to paragraph (d) of the Original Agreement) since inception of the
Original Agreement through and including the day next preceding the date of
calculation and (ii) the aggregate amount of all contingent deferred sales
charges paid or payable to the Principal Underwriter since inception of the
Original Agreement through and including the day next preceding the date of
calculation. If the result of such subtraction is a positive amount, a
distribution fee [computed at the rate of 1% per annum above the prime rate
(being the base rate on corporate loans posted by at least 75% of the nation's
30 largest banks) then being reported in the Eastern Edition of The Wall Street
Journal or if such prime rate is not so reported such other rate as may be
designated from time to time by vote or other action of a majority of (i) those
Trustees of the Trust who are not "interested persons" of the Trust (as defined
in the 1940 Act) and have no direct or indirect financial interest in the
operation of the Plan or any agreements related to it (the "Rule 12b-1
Trustees") and (ii) all of the Trustees then in office] shall be computed on
such amount and added to such amount, with the resulting sum constituting the
amount of outstanding uncovered distribution charges of the Principal
Underwriter with respect to such day for all purposes of this Agreement. If the
result of such subtraction is a negative amount, there shall exist no
outstanding uncovered distribution charges of the Principal Underwriter with
respect to such day and no amount shall be accrued or paid to the Principal
Underwriter with respect to such day. The aggregate amounts accrued and paid
pursuant to this paragraph (d) during any fiscal year of the Fund shall not
exceed .75% of the average daily net assets of the Fund for such year.
(e) The Principal Underwriter shall be entitled to receive all
contingent deferred sales charges paid or payable with respect to any day on
which there exist outstanding uncovered distribution charges of the Principal
Underwriter. The Fund shall be entitled to receive all remaining contingent
deferred sales charges paid or payable by shareholders with respect to any day
on which there exist no outstanding uncovered distribution charges of the
Principal Underwriter, provided that no such sales charge which would cause the
Fund to exceed the maximum applicable cap imposed thereon by paragraph (2) of
subsection (d) of Section 26 of Article III of the Rules of Fair Practice of the
National Association of Securities Dealers, Inc. shall be imposed.
(f) The persons authorized to direct the disposition of monies paid or
payable by the Fund pursuant to the Plan or this Agreement shall be the
President or any Vice President of the Trust. Such persons shall uant provide to
the Trust's Trustees and the Trustees shall review, at least quarterly, a
written report of the amounts so expended and the purposes for which such
expenditures were made.
(g) In addition to the payments to the Principal Underwriter provided
for in paragraph 5(d), the Fund may make payments of service fees to the
Principal Underwriter, Authorized Firms and other persons. The aggregate of such
payments during any fiscal year of the Fund shall not exceed .25% of the Fund's
average daily net assets for such year.
6. The Trust hereby authorizes the Principal Underwriter to
repurchase, upon the terms and conditions set forth in written instructions
given by the Trust to the Principal Underwriter from time to time, as agent of
the Fund and for its account, such shares of the Fund as may be offered for sale
to the Fund from time to time.
(a) The Principal Underwriter shall notify in writing IBT and TSSG at
the end of each business day, or as soon thereafter as the repurchases in each
pricing period have been compiled, of the number of shares day, repurchased for
the account of the Fund since the last previous report, together with the prices
at which such repurchases were made, and upon the request of any officer or
Trustee of the Trust shall furnish similar information with respect to all
repurchases made up to the time of the request on any day.
(b) The Trust reserves the right to suspend or revoke the foregoing
authorization at any time; unless otherwise stated, any such suspension or
revocation shall be effective forthwith upon receipt of notice thereof by an
officer of the Principal Underwriter, by telegraph or by written instrument from
an officer of the Trust duly authorized by its Trustees. In the event that the
authorization of the Principal Underwriter is, by the terms of such notice,
suspended for more than twenty-four hours or until further notice, the
authorization given by this paragraph 6 shall not be revived except by action of
a majority of the Trustees of the Trust.
(c) The Principal Underwriter shall have the right to terminate the
operation of this paragraph 6 upon giving to the Trust thirty (30) days' written
notice thereof. s paragraph 6
(d) The Trust agrees to authorize and direct IBT to pay, for the
account of the Fund, the purchase price of any shares so repurchased against
delivery of the certificates in proper form for transfer to the Fund or for
cancellation by the Fund.
(e) The Principal Underwriter shall receive no commission in respect
of any repurchase of shares under the foregoing authorization and appointment as
agent, except for any sales commission, distribution fee or contingent deferred
sales charges payable under paragraph 5.
(f) The Trust agrees that the Fund will reimburse the Principal
Underwriter, from time to time on demand, for any reasonable expenses incurred
in connection with the repurchase of shares of the Fund pursuant to this
paragraph 6.
7. If, at any time during the existence of this Agreement, the Trust
shall deem it necessary or advisable in the best interests of the Fund that any
amendment of this Agreement be made in order to comply with the recommendations
or requirements of the Commission or other governmental authority or to obtain
any advantage under Massachusetts or Federal tax laws, and shall notify the
Principal Underwriter of the form of amendment which it deems necessary or
advisable and the reasons therefor, and, if the Principal Underwriter declines
to assent to such amendment, the Trust may terminate this Agreement forthwith by
written notice to the Principal Underwriter. If, at any time during the
existence of its agreement upon request by the Principal Underwriter, the Trust
fails (after a reasonable time) to make any changes in its Declaration of Trust,
as amended, or in its methods of doing business which are necessary in order to
comply with any requirement of Federal law or regulations of the Commission or
of a national securities association of which the Principal Underwriter is or
may be a member, relating to the sale of the shares of the Fund, the Principal
Underwriter may terminate this Agreement forthwith by written notice to the
Trust.
8. The term "net asset value" as used in this Agreement with reference
to the shares of the Fund shall have the same meaning as used in the Declaration
of Trust, as amended, and calculated in the manner referred to in paragraph 2
above.
9(a). The Principal Underwriter is a corporation in the United States
organized under the laws of Massachusetts and holding membership in the National
Association of Securities Dealers, Inc., a securities of association registered
under Section 15A of the Securities Exchange Act of 1934, as amended from time
to time, and during the life of this Agreement will continue to be so resident
in the United States, so organized and a member in good standing of said
Association. The Principal Underwriter will comply with the Trust's Declaration
of Trust and By-Laws, and the 1940 Act and the rules promulgated thereunder,
insofar as they are applicable to the Principal Underwriter.
(b) The Principal Underwriter shall maintain in the United States and
preserve therein for such period or periods as the Commission shall prescribe by
rules and regulations applicable to it as Principal Underwriter of an open-end
investment company registered under the 1940 Act such accounts, books and other
documents as are necessary or appropriate to record its transactions with the
Fund. Such accounts, books and other documents shall be subject at any time and
from time to time to such reasonable periodic, special and other examinations by
the Commission or any member or representative thereof as the Commission may
prescribe. The Principal Underwriter shall furnish to the Commission within such
reasonable time as the Commission may prescribe copies of or extracts from such
records which may be prepared without effort, expense or delay as the Commission
may by order require.
10. This Agreement shall continue in force indefinitely until
terminated as in this Agreement above provided, except that: reement above
(a) this Agreement shall remain in effect through and including April
28, 1995, and shall continue in full force and effect indefinitely thereafter,
but only so long as such continuance is specifically approved at least annually
(i) by the vote of a majority of the Rule 12b-1 Trustees cast in person at a
meeting called for the purpose of voting on such approval, and (ii) by the
Trustees of the Trust or by vote of a majority of the outstanding voting
securities of the Fund;
(b) this Agreement may be terminated at any time by vote of a majority
of the Rule 12b-1 Trustees or by vote of a majority of the outstanding voting
securities of the Fund on not more than sixty (60) days' ees notice to the
Principal Underwriter. The Principal Underwriter shall be entitled to receive
all contingent deferred sales charges paid or payable with respect to any day
subsequent to the termination of this Agreement;
(c) the Principal Underwriter shall have the right to terminate this
Agreement on six (6) months' written notice thereof given in writing to the
Fund; and x (6) months'
(d) the Trust shall have the right to terminate this Agreement
forthwith in the event that it shall have been established by a court of
competent jurisdiction that the Principal Underwriter or any director or hall
officer of the Principal Underwriter has taken any action which results in a
breach of the covenants set out in paragraph 9 hereof.
11. In the event of the assignment of this Agreement by the Principal
Underwriter, this Agreement shall automatically terminate. his Agreement
12. Any notice under this Agreement shall be in writing, addressed and
delivered, or mailed postage paid, to the other party, at such address as such
other party may designate for the receipt of such notices. age Until further
notice to the other party, it is agreed that the record address of the Trust and
that of the Principal Underwriter, shall be 24 Federal Street, Boston,
Massachusetts 02110.
13. The services of the Principal Underwriter to the Fund hereunder
are not to be deemed to be exclusive, the Principal Underwriter being free to
(a) render similar service to, and to act as principal underwriter in connection
with the distribution of shares of, other series of the Trust or other
investment companies, and (b) engage in other business and activities from time
to time.
14. The terms "vote of a majority of the outstanding voting
securities," "assignment" and "interested persons," when used herein, shall have
the respective meanings specified in the 1940 Act, subject, however, to such
exemptions as may be granted by the Commission by any rule, regulation or order.
15. The Principal Underwriter expressly acknowledges the provision in
the Trust's Declaration of Trust limiting the personal liability of the
shareholders of the Fund or the Trustees of the Trust. The Principal Underwriter
hereby agrees that it shall have recourse to the Trust or the Fund for payment
of claims or obligations as between the Trust or the Fund and the Principal
Underwriter arising out of this Agreement and shall not seek satisfaction from
the shareholders or any shareholder of the Trust or from the Trustees or any
Trustee of the Trust. The Fund shall not be responsible for obligations of any
other series of the Trust.
16. All references in this Agreement to the "Original Agreement" shall
mean the Distribution Agreement dated August 1, 1994 between the Trust on behalf
of the Fund and the Principal Underwriter.
17. This Agreement shall amend, replace and be substituted for the
Original Agreement as of the opening of business on January 30, 1995, and this
Agreement shall be effective as of such time. The outstanding uncovered
distribution charges of the Principal Underwriter calculated under the Original
Agreement as of the close of business on January 29, 1995 shall be the
outstanding uncovered distribution charges of the Principal Underwriter
calculated under this Agreement as of the opening of business on January 30,
1995.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have entered into this
Agreement on the 27th day of January, 1995.
EATON VANCE GROWTH TRUST
(on behalf of EV CLASSIC GROWTH FUND)
By /s/ James B. Hawkes
----------------------------------
President
EATON VANCE DISTRIBUTORS INC.
By /s/ Wharton P. Whitaker
----------------------------------
President
<PAGE>
EXHIBIT 99.6(a)(6)
EATON VANCE GROWTH TRUST
DISTRIBUTION AGREEMENT
ON BEHALF OF EV MARATHON GROWTH FUND
AGREEMENT effective as of August 1, 1994 between EATON VANCE GROWTH
TRUST, a Massachusetts business trust having its principal place of business in
Boston in the Commonwealth of Massachusetts, hereinafter called the "Trust", on
behalf of EV Marathon Growth Fund (the "Fund"), and EATON VANCE DISTRIBUTORS,
INC., a Massachusetts corporation having its principal place of business in said
Boston, hereinafter sometimes called the "Principal Underwriter".
IN CONSIDERATION of the mutual promises and undertakings herein
contained, the parties hereto agree:
1. The Trust grants to the Principal Underwriter the right to purchase
shares of the Fund upon the terms hereinbelow set forth during the term of this
Agreement. While this Agreement is in force, the Principal Underwriter agrees to
use its best efforts to find purchasers for shares of the Fund.
The Principal Underwriter shall have the right to buy from the Fund the
shares needed, but not more than the shares needed (except for clerical errors
and errors of transmission) to fill unconditional orders for shares of the Fund
placed with the Principal Underwriter by financial service firms or investors as
set forth in the current Prospectus relating to shares of the Fund. The price
which the Principal Underwriter shall pay for the shares so purchased shall be
equal to the price paid by investors upon purchasing such shares. The Principal
Underwriter shall notify Investors Bank & Trust Company, Custodian of the Fund,
at the end of each business day, or as soon thereafter as the orders placed with
it have been compiled, of the number of shares and the prices thereof which the
Principal Underwriter is to purchase as principal for resale. The Principal
Underwriter shall take down and pay for shares ordered from the Fund on or
before the eleventh business day (excluding Saturdays) after the shares have
been so ordered.
The right granted to the Principal Underwriter to buy shares from the
Fund shall be exclusive, except that said exclusive right shall not apply to
shares issued in connection with the merger or consolidation of any other
investment company or personal holding company with the Fund or the acquisition
by purchase or otherwise of all (or substantially all) the assets or the
outstanding shares of any such company, by the Fund; nor shall it apply to
shares, if any, issued by the Fund in distribution of income or realized capital
gains of the Fund payable in shares or in cash at the option of the shareholder.
2. The shares may be resold by the Principal Underwriter to or through
financial service firms having agreements with the Principal Underwriter, and to
investors, upon the following terms and conditions.
The public offering price, i.e., the price per share at which the
Principal Underwriter or financial service firm purchasing shares from the
Principal Underwriter may sell shares to the public, shall be equal to the net
asset value at which the Principal Underwriter is to purchase the shares.
The net asset value of shares of the Fund shall be determined by the
Trust or Investors Bank & Trust Company, as the agent of the Fund, as of the
close of regular trading on the New York Stock Exchange on each business day on
which said Exchange is open, or as of such other time on each such business day
as may be determined by the Trustees of the Trust, in accordance with the
methodology and procedures for calculating such net asset value authorized by
the Trustees. The Trust may also cause the net asset value to be determined in
substantially the same manner or estimated in such manner and as of such other
time or times as may from time to time be agreed upon by the Trust and Principal
Underwriter. The Trust will notify the Principal Underwriter each time the net
asset value of the Fund's shares is determined and when such value is so
determined it shall be applicable to transactions as set forth in the current
Prospectus relating to the Fund's shares.
No shares of the Fund shall be sold by the Fund during any period when
the determination of net asset value is suspended pursuant to the Declaration of
Trust, except to the Principal Underwriter, in the manner and upon the terms
above set forth to cover contracts of sale made by the Principal Underwriter
with its customers prior to any such suspension, and except as provided in the
last paragraph of paragraph 1 hereof. The Trust shall also have the right to
suspend the sale of the Fund's shares if in the judgment of the Trust conditions
obtaining at any time render such action advisable. The Principal Underwriter
shall have the right to suspend sales at any time, to refuse to accept or
confirm any order from an investor or financial service firm, or to accept or
confirm any such order in part only, if in the judgment of the Principal
Underwriter such action is in the best interests of the Fund.
3. The Trust agrees that it will, from time to time, but subject to the
necessary approval of the Fund's shareholders, take such steps as may be
necessary to register the Fund's shares under the federal Securities Act of 1933
(as amended from time to time) to the end that there will be available for sale
such number of shares as the Principal Underwriter may reasonably be expected to
sell. The Trust agrees to indemnify and hold harmless the Principal Underwriter
and each person, if any, who controls the Principal Underwriter within the
meaning of Section 15 of the Securities Act of 1933 against any loss, liability,
claim, damages or expense (including the reasonable cost of investigating or
defending any alleged loss, liability, claim, damages or expense and reasonable
counsel fees incurred in connection therewith), arising by reason of any person
acquiring any shares of the Fund, which may be based upon the Securities Act of
1933 or on any other statute or at common law, on the ground that the
Registration Statement or Prospectus, as from time to time amended and
supplemented, includes an untrue statement of a material fact or omits to state
a material fact required to be stated therein or necessary in order to make the
statements therein not misleading, unless such statement or omission was made in
reliance upon, and in conformity with, information furnished in writing to the
Trust in connection therewith by or on behalf of the Principal Underwriter;
provided, however, that in no case (i) is the indemnity of the Trust in favor of
the Principal Underwriter and any such controlling person to be deemed to
protect such Principal Underwriter or any such controlling person against any
liability to the Trust or the Fund or its security holders to which such
Principal Underwriter or any such controlling person would otherwise be subject
by reason of willful misfeasance, bad faith, or gross negligence in the
performance of its duties or by reason of its reckless disregard of its
obligations and duties under this Agreement, or (ii) is the Trust or the Fund to
be liable under its indemnity agreement contained in this paragraph with respect
to any claim made against the Principal Underwriter or any such controlling
person unless the Principal Underwriter or any such controlling person, as the
case may be, shall have notified the Trust in writing within a reasonable time
after the summons or other first legal process giving information of the nature
of the claim shall have been served upon the Principal Underwriter or such
controlling person (or after such Principal Underwriter or such controlling
person shall have received notice of such service on any designated agent), but
failure to notify the Trust of any such claim shall not relieve it from any
liability which the Fund may have to the person against whom such action is
brought otherwise than on account of its indemnity agreement contained in this
paragraph. The Trust shall be entitled to participate, at the expense of the
Fund, in the defense, or, if the Trust so elects, to assume the defense of any
suit brought to enforce any such liability, but if the Trust elects to assume
the defense, such defense shall be conducted by counsel chosen by it and
satisfactory to the Principal Underwriter or controlling person or persons,
defendant or defendants in the suit. In the event the Trust elects to assume the
defense of any such suit and retains such counsel, the Principal Underwriter or
controlling person or persons, defendant or defendants in the suit, shall bear
the fees and expenses of any additional counsel retained by them, but, in case
the Trust does not elect to assume the defense of any such suit, the Fund shall
reimburse the Principal Underwriter or controlling person or persons, defendant
or defendants in the suit, for the reasonable fees and expenses of any counsel
retained by them. The Trust agrees promptly to notify the Principal Underwriter
of the commencement of any litigation or proceedings against it or any of its
officers or Trustees in connection with the issuance or sale of any of the
Fund's shares.
4. The Principal Underwriter covenants and agrees that, in selling the
shares of the Fund, it will use its best efforts in all respects duly to conform
with the requirements of all state and federal laws relating to the sale of such
shares, and will indemnify and hold harmless the Trust and each of its Trustees
and officers and each person, if any, who controls the Trust within the meaning
of Section 15 of the Securities Act of 1933, against any loss, liability,
damages, claim or expense (including the reasonable cost of investigating or
defending any alleged loss, liability, damages, claim or expense and reasonable
counsel fees incurred in connection therewith), arising by reason of any person
acquiring any shares of the Fund, which may be based upon the Securities Act of
1933 or any other statute or at common law, on account of any wrongful act of
the Principal Underwriter or any of its employees (including any failure to
conform with any requirement of any state or federal law relating to the sale of
such shares) or on the ground that the registration statement or Prospectus, as
from time to time amended and supplemented, includes an untrue statement of a
material fact or omits to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading, insofar as any
such statement or omission was made in reliance upon, and in conformity with
information furnished in writing to the Fund in connection therewith by or on
behalf of the Principal Underwriter, provided, however, that in no case (i) is
the indemnity of the Principal Underwriter in favor of any person indemnified to
be deemed to protect the Fund or any such person against any liability to which
the Fund or any such person would otherwise be subject by reason of willful
misfeasance, bad faith, or gross negligence in the performance of its or his
duties or by reason of its or his reckless disregard of its obligations and
duties under this Agreement, or (ii) is the Principal Underwriter to be liable
under its indemnity agreement contained in this paragraph with respect to any
claim made against the Fund or any person indemnified unless the Trust or such
person, as the case may be, shall have notified the Principal Underwriter in
writing within a reasonable time after the summons or other first legal process
giving information of the nature of the claim shall have been served upon the
Trust, the Fund or upon such person (or after the Trust or such person shall
have received notice of such service on any designated agent), but failure to
notify the Principal Underwriter of any such claim shall not relieve it from any
liability which it may have to the Fund or any person against whom such action
is brought otherwise than on account of its indemnity agreement contained in
this paragraph. The Principal Underwriter shall be entitled to participate, at
its own expense, in the defense, or, if it so elects, to assume the defense of
any suit brought to enforce any such liability, but if the Principal Underwriter
elects to assume the defense, such defense shall be conducted by counsel chosen
by it and satisfactory to the Trust, or to its officers or Trustees, or to any
controlling person or persons, defendant or defendants in the suit. In the event
that the Principal Underwriter elects to assume the defense of any such suit and
retains such counsel, the Fund or such officers or Trustees or controlling
person or persons, defendant or defendants in the suit, shall bear the fees and
expenses of any additional counsel retained by them or the Trust, but, in case
the Principal Underwriter does not elect to assume the defense of any such suit,
it shall reimburse the Fund, any such officers and Trustees or controlling
person or persons, defendant or defendants in such suit, for the reasonable fees
and expenses of any counsel retained by them or the Trust. The Principal
Underwriter agrees promptly to notify the Trust of the commencement of any
litigation or proceedings against it in connection with the issue and sale of
any of the Fund's shares.
Neither the Principal Underwriter nor any financial service firm nor
any other person is authorized by the Trust to give any information or to make
any representations, other than those contained in the Registration Statement or
Prospectus filed with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (as said Registration Statement and
Prospectus may be amended or supplemented from time to time), covering the
shares of the Fund. Neither the Principal Underwriter nor any financial service
firm nor any other person is authorized to act as agent for the Trust or the
Fund in connection with the offering or sale of shares of the Fund to the public
or otherwise. All such sales made by the Principal Underwriter shall be made by
it as principal, for its own account. The Principal Underwriter may, however,
act as agent in connection with the repurchase of shares as provided in
paragraph 6 below, or in connection with "exchanges" between investment
companies for which the Principal Underwriter acts as Principal Underwriter or
for which an affiliate of the Principal Underwriter acts as investment adviser.
5(a). The Fund will pay, or cause to be paid -
(i) all the costs and expenses of the Fund, including fees and
disbursements of its counsel, in connection with the preparation and filing of
any required Registration Statement and/or Prospectus under the Securities Act
of 1933, as amended, covering its shares and all amendments and supplements
thereto, and preparing and mailing periodic reports to shareholders (including
the expense of setting up in type any such Registration Statement, Prospectus or
periodic report);
(ii) the cost of preparing temporary and permanent share
certificates (if any) for shares of the Fund;
(iii) The cost and expenses of delivering to the Principal
Underwriter at its office in Boston, Massachusetts, all shares of the Fund
purchased by it as principal hereunder; and
(iv) all the federal and state (if any) issue and/or transfer
taxes payable upon the issue by or (in the case of treasury shares) transfer
from the Fund to the Principal Underwriter of any and all shares of the Fund
purchased by the Principal Underwriter hereunder.
(b) The Principal Underwriter agrees that, after the Prospectus and
periodic reports have been set up in type, it will bear the expense of printing
and distributing any copies thereof which are to be used in connection with the
offering of shares of the Fund to financial service firms or investors. The
Principal Underwriter further agrees that it will bear the expenses of
preparing, printing and distributing any other literature used by the Principal
Underwriter or furnished by it for use by financial service firms in connection
with the offering of the shares of the Fund for sale to the public and any
expenses of advertising in connection with such offering. The Fund agrees to pay
the expenses of registration and maintaining registration of its shares for sale
under federal and state securities laws, and, if necessary or advisable in
connection therewith, of qualifying the Trust or the Fund as a dealer or broker,
in such states as shall be selected by the Principal Underwriter and the fees
payable to each such state for continuing the qualification therein until the
Principal Underwriter notifies the Trust that it does not wish such
qualification continued.
(c) In addition, the Trust agrees, in accordance with the Fund's
Distribution Plan (the "Plan"), adopted pursuant to Rule 12b-1 under the
Investment Company Act of 1940, as amended (the "1940 Act") with respect to
shares, to make certain payments as follows. The Principal Underwriter shall be
entitled to be paid by the Fund a sales commission equal to an amount not
exceeding 5% of the price received by the Fund for each sale of shares
(excluding reinvestment of dividends and distributions), such payment to be made
in the manner set forth in this paragraph 5. The Principal Underwriter shall
also be entitled to be paid by the Fund a separate distribution fee (calculated
in accordance with paragraph 5(d)), such payment to be made in the manner set
forth and subject to the terms of this paragraph 5.
(d) The sales commissions and distribution fees referred to in
paragraph 5(c) shall be accrued and paid by the Fund in the following manner.
The Fund shall accrue daily an amount calculated at the rate of .75% per annum
of the daily net assets of the Fund, which net assets shall be computed in
accordance with the governing documents of the Fund and applicable votes and
determinations of the Trustees of the Trust. The daily amounts so accrued
throughout the month shall be paid to the Principal Underwriter on the last day
of each month. The amount of such daily accrual, as so calculated, shall first
be applied and charged to all unpaid sales commissions, and the balance, if any,
shall then be applied and charged to all unpaid distribution fees. No amount
shall be accrued with respect to any day on which there exist no outstanding
uncovered distribution charges of the Principal Underwriter. The amount of such
uncovered distribution charges shall be calculated daily. For purposes of this
calculation, distribution charges of the Principal Underwriter shall include (a)
the aggregate of all sales commissions which the Principal Underwriter has been
paid pursuant to this paragraph (d) plus all sales commissions which it is
entitled to be paid pursuant to paragraph 5(c) since inception of this Agreement
through and including the day next preceding the date of calculation, and (b) an
amount equal to the aggregate of all distribution fees referred to below which
the Principal Underwriter has been paid pursuant to this paragraph (d) plus all
such fees which it is entitled to be paid pursuant to paragraph 5(c) since
inception of this Agreement through and including the day next preceding the
date of calculation. From this sum (distribution charges) there shall be
subtracted (i) the aggregate amount paid or payable to the Principal Underwriter
pursuant to this paragraph (d) since inception of this Agreement through and
including the day next preceding the date of calculation and (ii) the aggregate
amount of all contingent deferred sales charges paid or payable to the Principal
Underwriter since inception of this Agreement through and including the day next
preceding the date of calculation. If the result of such subtraction is a
positive amount, a distribution fee [computed at the rate of 1% per annum above
the prime rate (being the base rate on corporate loans posted by at least 75% of
the nation's 30 largest banks) then being reported in the Eastern Edition of The
Wall Street Journal or if such prime rate is not so reported such other rate as
may be designated from time to time by vote or other action of a majority of (i)
those Trustees of the Trust who are not "interested persons" of the Trust (as
defined in the 1940 Act) and have no direct or indirect financial interest in
the operation of the Plan or any agreements related to it and (ii) all of the
Trustees then in office] shall be computed on such amount and added to such
amount, with the resulting sum constituting the amount of outstanding uncovered
distribution charges of the Principal Underwriter with respect to such day for
all purposes of this Agreement. If the result of such subtraction is a negative
amount, there shall exist no outstanding uncovered distribution charges of the
Principal Underwriter with respect to such day and no amount shall be accrued or
paid to the Principal Underwriter with respect to such day. The aggregate
amounts accrued and paid pursuant to this paragraph (d) during any fiscal year
of the Fund shall not exceed .75% of the average daily net assets of the Fund
for such year.
(e) The Principal Underwriter shall be entitled to receive all
contingent deferred sales charges paid or payable with respect to any day on
which there exist outstanding uncovered distribution charges of the Principal
Underwriter. The Fund shall be entitled to receive all remaining contingent
deferred sales charges paid or payable by shareholders with respect to any day
on which there exist no outstanding uncovered distribution charges of the
Principal Underwriter, provided that no such sales charge which would cause the
Fund to exceed the maximum applicable cap imposed thereon by paragraph (2) of
subsection (d) of Section 26 of Article III of the Rules of Fair Practice of the
National Association of Securities Dealers, Inc. shall be imposed.
(f) The persons authorized to direct the disposition of monies paid or
payable on behalf of the Fund pursuant to the Plan or this Agreement shall be
the President or any Vice President of the Trust. Such persons shall provide to
the Trust's Trustees and the Trustees shall review, at least quarterly, a
written report of the amounts so expended and the purposes for which such
expenditures were made.
(g) In addition to the payments to the Principal Underwriter provided
for in paragraph 5(d), the Fund may make payments of service fees to the
Principal Underwriter, Authorized Firms and other persons. The aggregate of such
payments during any fiscal year of the Fund shall not exceed .25% of the Fund's
average daily net assets for such year.
6. The Trust hereby authorizes the Principal Underwriter to repurchase,
upon the terms and conditions set forth in written instructions given by the
Trust to the Principal Underwriter from time to time, as agent of the Fund and
for its account, such shares of the Fund as may be offered for sale to the Fund
from time to time.
(a) The Principal Underwriter shall notify in writing Investors Bank &
Trust Company, Custodian of the Fund, at the end of each business day, or as
soon thereafter as the repurchases in each pricing period have been compiled, of
the number of shares repurchased for the account of the Fund since the last
previous report, together with the prices at which such repurchases were made,
and upon the request of any officer or Trustee of the Trust shall furnish
similar information with respect to all repurchases made up to the time of the
request on any day.
(b) The Trust reserves the right to suspend or revoke the foregoing
authorization at any time; unless otherwise stated, any such suspension or
revocation shall be effective forthwith upon receipt of notice thereof by an
officer of the Principal Underwriter, by telegraph or by written instrument from
an officer of the Trust duly authorized by its Trustees. In the event that the
authorization of the Principal Underwriter is, by the terms of such notice,
suspended for more than twenty-four hours or until further notice, the
authorization given by this paragraph 6 shall not be revived except by action of
a majority of the Trustees of the Trust.
(c) The Principal Underwriter shall have the right to terminate the
operation of this paragraph 6 upon giving to the Trust thirty (30) days' written
notice thereof.
(d) The Trust agrees to authorize and direct Investors Bank & Trust
Company, Custodian, to pay, for the account of the Fund, the purchase price of
any shares so repurchased against delivery of the certificates in proper form
for transfer to the Fund or for cancellation by the Fund.
(e) The Principal Underwriter shall receive no commission in respect
of any repurchase of shares under the foregoing authorization and appointment as
agent, except for any sales commission, distribution fee or contingent deferred
sales charges payable under paragraph 5.
(f) The Trust agrees that the Fund will reimburse the Principal
Underwriter, from time to time on demand, for any reasonable expenses incurred
in connection with the repurchase of shares of the Fund pursuant to this
paragraph 6.
7. If, at any time during the existence of this Agreement, the Trust
shall deem it necessary or advisable in the best interests of the Fund that any
amendment of this Agreement be made in order to comply with the recommendations
or requirements of the Securities and Exchange Commission or other governmental
authority or to obtain any advantage under Massachusetts or federal tax laws,
and shall notify the Principal Underwriter of the form of amendment which it
deems necessary or advisable and the reasons therefor, and, if the Principal
Underwriter declines to assent to such amendment, the Trust may terminate this
Agreement forthwith by written notice to the Principal Underwriter. If, at any
time during the existence of its agreement upon request by the Principal
Underwriter, the Trust fails (after a reasonable time) to make any changes in
its Declaration of Trust, as amended, or in its methods of doing business which
are necessary in order to comply with any requirement of federal law or
regulations of the Securities and Exchange Commission or of a national
securities association of which the Principal Underwriter is or may be a member,
relating to the sale of the shares of the Fund, the Principal Underwriter may
terminate this Agreement forthwith by written notice to the Trust.
8. The term "net asset value" as used in this Agreement with reference
to the shares of the Fund shall have the same meaning as used in the Declaration
of Trust, as amended, and calculated in the manner referred to in paragraph 2
above.
9. (a) The Principal Underwriter is a corporation in the United States
organized under the laws of Massachusetts and holding membership in the National
Association of Securities Dealers, Inc., a securities association registered
under Section 15A of the Securities Exchange Act of 1934, and during the life of
this Agreement will continue to be so resident in the United States, so
organized and a member in good standing of said Association. The Principal
Underwriter will comply with the Trust's Declaration of Trust and By-Laws, and
the 1940 Act and the rules promulgated thereunder, insofar as they are
applicable to the Principal Underwriter.
(b) The Principal Underwriter shall maintain in the United
States and preserve therein for such period or periods as the Securities and
Exchange Commission shall prescribe by rules and regulations applicable to it as
Principal Underwriter of an open-end investment company registered under the
1940 Act such accounts, books and other documents as are necessary or
appropriate to record its transactions with the Fund. Such accounts, books and
other documents shall be subject at any time and from time to time to such
reasonable periodic, special and other examinations by the Securities and
Exchange Commission or any member or representative thereof as the Securities
and Exchange Commission may prescribe. The Principal Underwriter shall furnish
to the Securities and Exchange Commission within such reasonable time as the
Securities and Exchange Commission may prescribe copies of or extracts from such
records which may be prepared without effort, expense or delay as the Securities
and Exchange Commission may by order require.
10. This Agreement shall continue in force indefinitely until
terminated as in this Agreement above provided, except that:
(a) this Agreement shall remain in effect through and including
April 28, 1995 and shall continue in full force and effect indefinitely
thereafter, but only so long as such continuance after April 28, 1995 is
specifically approved at least annually (i) by the vote of a majority of the
Trustees of the Trust who are not "interested persons" (as defined in Section
2(a)(19) of the 1940 Act) of the Trust and who have no direct or indirect
interest in the operation of the Plan or this Agreement (the "Rule 12b-1
Trustees") cast in person at a meeting called for the purpose of voting on such
approval, and (ii) by the Trustees of the Trust or by vote of a majority of the
outstanding voting securities (as defined in Section 2(a)(42) of the 1940 Act)
of the Fund;
(b) this Agreement may be terminated at any time by vote of a
majority of the Rule 12b-1 Trustees or by vote of a majority of the outstanding
voting securities of the Fund on not more than sixty days' notice to the
Principal Underwriter. The Principal Underwriter shall be entitled to receive
all contingent deferred sales charges paid or payable with respect to any day
subsequent to the termination of this Agreement;
(c) the Principal Underwriter shall have the right to terminate
this Agreement on six (6) months' written notice thereof given in writing to the
Fund; and
(d) the Trust shall have the right to terminate this Agreement
forthwith in the event that it shall have been established by a court of
competent jurisdiction that the Principal Underwriter or any director or officer
of the Principal Underwriter has taken any action which results in a breach of
the covenants set out in paragraph 9 hereof.
11. In the event of the assignment (as defined in Section 2(a)(4) of
the 1940 Act) of this Agreement by the Principal Underwriter, this Agreement
shall automatically terminate.
12. Any notice under this Agreement shall be in writing, addressed and
delivered, or mailed postage paid, to the other party, at such address as such
other party may designate for the receipt of such notices. Until further notice
to the other party, it is agreed that the record address of the Trust and that
of the Principal Underwriter, shall be 24 Federal Street, Boston, Massachusetts
02110.
13. The services of the Principal Underwriter to the Fund hereunder
are not to be deemed to be exclusive, the Principal Underwriter being free to
(a) render similar services to, and to act as principal underwriter in
connection with the distribution of shares of, other series of the Trust or
investment companies, and (b) engage in other business and activities from time
to time.
14. The Principal Underwriter expressly acknowledges the provision in
the Trust's Declaration of Trust limiting the personal liability of the
shareholders of the Fund or the Trustees of the Trust. The Principal Underwriter
hereby agrees that it shall have recourse to the Trust or the Fund for payment
of claims or obligations as between the Trust or the Fund and the Principal
Underwriter arising out of this Agreement and shall not seek satisfaction from
the shareholders or any shareholder of the Trust or from the Trustees or any
Trustee of the Trust. The Fund shall not be responsible for obligations of any
other series of the Trust.
IN WITNESS WHEREOF, the parties hereto have entered into this
Agreement on the 1st day of August, 1994.
EATON VANCE GROWTH TRUST
(on behalf of EV MARATHON GROWTH FUND)
By /s/ James B. Hawkes
-------------------------------------
President
EATON VANCE DISTRIBUTORS, INC.
By /s/ Wharton P. Whitaker
-------------------------------------
President
EXHIBIT 99.(6)(a)(9)
EATON VANCE GROWTH TRUST
DISTRIBUTION AGREEMENT
ON BEHALF OF EV MARATHON GOLD & NATURAL RESOURCES FUND
AGREEMENT effective as of September 1, 1995 between EATON VANCE GROWTH
TRUST, a Massachusetts business trust having its principal place of business in
Boston in the Commonwealth of Massachusetts, hereinafter called the "Trust", on
behalf of EV Marathon Gold & Natural Resources Fund (the "Fund") and EATON VANCE
DISTRIBUTORS INC., a Massachusetts corporation having its principal place of
business in said Boston, hereinafter sometimes called the "Principal
Underwriter".
IN CONSIDERATION of the mutual promises and undertakings herein
contained, the parties hereto agree:
1. The Trust grants to the Principal Underwriter the right to purchase
shares of the Fund upon the terms hereinbelow set forth during the term of this
Agreement. While this Agreement is in force, the Principal Underwriter agrees to
use its best efforts to find purchasers for shares of the Fund.
The Principal Underwriter shall have the right to buy from the Fund the
shares needed, but not more than the shares needed (except for clerical errors
and errors of transmission) to fill unconditional orders for shares of the Fund
placed with the Principal Underwriter by financial service firms or investors as
set forth in the current Prospectus relating to shares of the Fund. The price
which the Principal Underwriter shall pay for the shares so purchased shall be
equal to the price paid by investors upon purchasing such shares. The Principal
Underwriter shall notify Investors Bank & Trust Company, Custodian of the Fund
("IBT"), and The Shareholder Services Group, Inc., Transfer Agent of the Fund
("TSSG"), or a successor transfer agent, at the end of each business day, or as
soon thereafter as the orders placed with it have been compiled, of the number
of shares and the prices thereof which the Principal Underwriter is to purchase
as principal for resale. The Principal Underwriter shall take down and pay for
shares ordered from the Fund on or before the eleventh business day (excluding
Saturdays) after the shares have been so ordered.
The right granted to the Principal Underwriter to buy shares from the
Fund shall be exclusive, except that said exclusive right shall not apply to
shares issued in connection with the merger or consolidation of any other
investment company or personal holding company with the Fund or the acquisition
by purchase or otherwise of all (or substantially all) the assets or the
outstanding shares of any such company, by the Fund; nor shall it apply to
shares, if any, issued by the Fund in distribution of income or realized capital
gains of the Fund payable in shares or in cash at the option of the shareholder.
2. The shares may be resold by the Principal Underwriter to or through
financial service firms having agreements with the Principal Underwriter, and to
investors, upon the following terms and conditions.
The public offering price, i.e., the price per share at which the
Principal Underwriter or financial service firm purchasing shares from the
Principal Underwriter may sell shares to the public, shall be equal to the net
asset value at which the Principal Underwriter is to purchase the shares.
The net asset value of shares of the Fund shall be determined by the
Trust or IBT, as the agent of the Fund, as of the close of regular trading on
the New York Stock Exchange on each business day on which said Exchange is open,
or as of such other time on each such business day as may be determined by the
Trustees of the Trust, in accordance with the methodology and procedures for
calculating such net asset value authorized by the Trustees. The Trust may also
cause the net asset value to be determined in substantially the same manner or
estimated in such manner and as of such other time or times as may from time to
time be agreed upon by the Trust and Principal Underwriter. The Trust will
notify the Principal Underwriter each time the net asset value of the Fund's
shares is determined and when such value is so determined it shall be applicable
to transactions as set forth in the current Prospectus and Statement of
Additional Information (hereafter the "Prospectus") relating to the Fund's
shares.
No shares of the Fund shall be sold by the Fund during any period when
the determination of net asset value is suspended pursuant to the Declaration of
Trust, except to the Principal Underwriter, in the manner and upon the terms
above set forth to cover contracts of sale made by the Principal Underwriter
with its customers prior to any such suspension, and except as provided in the
last paragraph of paragraph 1 hereof. The Trust shall also have the right to
suspend the sale of the Fund's shares if in the judgment of the Trust conditions
obtaining at any time render such action advisable. The Principal Underwriter
shall have the right to suspend sales at any time, to refuse to accept or
confirm any order from an investor or financial service firm, or to accept or
confirm any such order in part only, if in the judgment of the Principal
Underwriter such action is in the best interests of the Fund.
3. The Trust agrees that it will, from time to time, but subject to the
necessary approval of the Fund's shareholders, take such steps as may be
necessary to register the Fund's shares under the federal Securities Act of
1933, as amended from time to time, (the "1933 Act), to the end that there will
be available for sale such number of shares as the Principal Underwriter may
reasonably be expected to sell. The Trust agrees to indemnify and hold harmless
the Principal Underwriter and each person, if any, who controls the Principal
Underwriter within the meaning of Section 15 of the 1933 Act against any loss,
liability, claim, damages or expense (including the reasonable cost of
investigating or defending any alleged loss, liability, claim, damages or
expense and reasonable counsel fees incurred in connection therewith), arising
by reason of any person acquiring any shares of the Fund, which may be based
upon the 1933 Act or on any other statute or at common law, on the ground that
the Registration Statement or Prospectus, as from time to time amended and
supplemented, includes an untrue statement of a material fact or omits to state
a material fact required to be stated therein or necessary in order to make the
statements therein not misleading, unless such statement or omission was made in
reliance upon, and in conformity with, information furnished in writing to the
Trust in connection therewith by or on behalf of the Principal Underwriter;
provided, however, that in no case (i) is the indemnity of the Trust in favor of
the Principal Underwriter and any such controlling person to be deemed to
protect such Principal Underwriter or any such controlling person against any
liability to the Trust or the Fund or its security holders to which such
Principal Underwriter or any such controlling person would otherwise be subject
by reason of willful misfeasance, bad faith, or gross negligence in the
performance of its duties or by reason of its reckless disregard of its
obligations and duties under this Agreement, or (ii) is the Trust or the Fund to
be liable under its indemnity agreement contained in this paragraph with respect
to any claim made against the Principal Underwriter or any such controlling
person unless the Principal Underwriter or any such controlling person, as the
case may be, shall have notified the Trust in writing within a reasonable time
after the summons or other first legal process giving information of the nature
of the claim shall have been served upon the Principal Underwriter or such
controlling person (or after such Principal Underwriter or such controlling
person shall have received notice of such service on any designated agent), but
failure to notify the Trust of any such claim shall not relieve it from any
liability which the Fund may have to the person against whom such action is
brought otherwise than on account of its indemnity agreement contained in this
paragraph. The Trust shall be entitled to participate, at the expense of the
Fund, in the defense, or, if the Trust so elects, to assume the defense of any
suit brought to enforce any such liability, but if the Trust elects to assume
the defense, such defense shall be conducted by counsel chosen by it and
satisfactory to the Principal Underwriter or controlling person or persons,
defendant or defendants in the suit. In the event the Trust elects to assume the
defense of any such suit and retains such counsel, the Principal Underwriter or
controlling person or persons, defendant or defendants in the suit, shall bear
the fees and expenses of any additional counsel retained by them, but, in case
the Trust does not elect to assume the defense of any such suit, the Fund shall
reimburse the Principal Underwriter or controlling person or persons, defendant
or defendants in the suit, for the reasonable fees and expenses of any counsel
retained by them. The Trust agrees promptly to notify the Principal Underwriter
of the commencement of any litigation or proceedings against it or any of its
officers or Trustees in connection with the issuance or sale of any of the
Fund's shares.
4. The Principal Underwriter covenants and agrees that, in selling the
shares of the Fund, it will use its best efforts in all respects duly to conform
with the requirements of all state and federal laws relating to the sale of such
shares, and will indemnify and hold harmless the Trust and each of its Trustees
and officers and each person, if any, who controls the Trust within the meaning
of Section 15 of the 1933 Act, against any loss, liability, damages, claim or
expense (including the reasonable cost of investigating or defending any alleged
loss, liability, damages, claim or expense and reasonable counsel fees incurred
in connection therewith), arising by reason of any person acquiring any shares
of the Fund, which may be based upon the 1933 Act or any other statute or at
common law, on account of any wrongful act of the Principal Underwriter or any
of its employees (including any failure to conform with any requirement of any
state or federal law relating to the sale of such shares) or on the ground that
the Registration Statement or Prospectus, as from time to time amended and
supplemented, includes an untrue statement of a material fact or omits to state
a material fact required to be stated therein or necessary in order to make the
statements therein not misleading, insofar as any such statement or omission was
made in reliance upon, and in conformity with information furnished in writing
to the Fund in connection therewith by or on behalf of the Principal
Underwriter, provided, however, that in no case (i) is the indemnity of the
Principal Underwriter in favor of any person indemnified to be deemed to protect
the Fund or any such person against any liability to which the Fund or any such
person would otherwise be subject by reason of willful misfeasance, bad faith,
or gross negligence in the performance of its or his duties or by reason of its
or his reckless disregard of its obligations and duties under this Agreement, or
(ii) is the Principal Underwriter to be liable under its indemnity agreement
contained in this paragraph with respect to any claim made against the Fund or
any person indemnified unless the Trust or such person, as the case may be,
shall have notified the Principal Underwriter in writing within a reasonable
time after the summons or other first legal process giving information of the
nature of the claim shall have been served upon the Trust, the Fund or upon such
person (or after the Trust, the Fund or such person shall have received notice
of such service on any designated agent), but failure to notify the Principal
Underwriter of any such claim shall not relieve it from any liability which it
may have to the Fund or any person against whom such action is brought otherwise
than on account of its indemnity agreement contained in this paragraph. The
Principal Underwriter shall be entitled to participate, at its own expense, in
the defense, or, if it so elects, to assume the defense of any suit brought to
enforce any such liability, but if the Principal Underwriter elects to assume
the defense, such defense shall be conducted by counsel chosen by it and
satisfactory to the Trust or to its officers or Trustees, or to any controlling
person or persons, defendant or defendants in the suit. In the event that the
Principal Underwriter elects to assume the defense of any such suit and retains
such counsel, the Fund or such officers or Trustees or controlling person or
persons, defendant or defendants in the suit, shall bear the fees and expenses
of any additional counsel retained by them or the Trust, but, in case the
Principal Underwriter does not elect to assume the defense of any such suit, it
shall reimburse the Fund, any such officers and Trustees or controlling person
or persons, defendant or defendants in such suit, for the reasonable fees and
expenses of any counsel retained by them or the Trust. The Principal Underwriter
agrees promptly to notify the Trust of the commencement of any litigation or
proceedings against it in connection with the issue and sale of any of the
Fund's shares.
Neither the Principal Underwriter nor any financial service firm nor
any other person is authorized by the Trust to give any information or to make
any representations, other than those contained in the Registration Statement or
Prospectus filed with the Securities and Exchange Commission (the "Commission")
under the 1933 Act, (as said Registration Statement and Prospectus may be
amended or supplemented from time to time), covering the shares of the Fund.
Neither the Principal Underwriter nor any financial service firm nor any other
person is authorized to act as agent for the Trust in connection with the
offering or sale of shares of the Fund to the public or otherwise. All such
sales made by the Principal Underwriter shall be made by it as principal, for
its own account. The Principal Underwriter may, however, act as agent in
connection with the repurchase of shares as provided in paragraph 6 below, or in
connection with "exchanges" between investment companies for which the Principal
Underwriter acts as Principal Underwriter or for which an affiliate of the
Principal Underwriter acts as investment adviser.
5(a). The Fund will pay, or cause to be paid -
(i) all the costs and expenses of the Fund, including fees and
disbursements of its counsel, in connection with the preparation and filing of
any required Registration Statement and/or Prospectus under the 1933 Act, or the
Investment Company Act of 1940, as amended from time to time, (the "1940 Act")
covering its shares and all amendments and supplements thereto, and preparing
and mailing periodic reports to shareholders (including the expense of setting
up in type any such Registration Statement, Prospectus or periodic report);
(ii) the cost of preparing temporary and permanent share
certificates (if any) for shares of the Fund;
(iii) The cost and expenses of delivering to the Principal
Underwriter at its office in Boston, Massachusetts, all shares of the Fund
purchased by it as principal hereunder; and
(iv) all the federal and state (if any) issue and/or transfer
taxes payable upon the issue by or (in the case of treasury shares) transfer
from the Fund to the Principal Underwriter of any and all shares of the Fund
purchased by the Principal Underwriter hereunder.
(b) The Principal Underwriter agrees that, after the Prospectus and
periodic reports have been set up in type, it will bear the expense of printing
and distributing any copies thereof which are to be used in connection with the
offering of shares of the Fund to financial service firms or investors. The
Principal Underwriter further agrees that it will bear the expenses of
preparing, printing and distributing any other literature used by the Principal
Underwriter or furnished by it for use by financial service firms in connection
with the offering of the shares of the Fund for sale to the public and any
expenses of advertising in connection with such offering. The Fund agrees to pay
the expenses of registration and maintaining registration of its shares for sale
under federal and state securities laws, and, if necessary or advisable in
connection therewith, of qualifying the Trust or the Fund as a dealer or broker,
in such states as shall be selected by the Principal Underwriter and the fees
payable to each such state for continuing the qualification therein until the
Principal Underwriter notifies the Trust that it does not wish such
qualification continued.
(c) In addition, the Trust agrees, in accordance with the Fund's
Distribution Plan (the "Plan"), adopted pursuant to Rule 12b-1 under the 1940
Act, with respect to shares, to make certain payments as follows. The Principal
Underwriter shall be entitled to be paid by the Fund a sales commission equal to
an amount not exceeding 5% of the price received by the Fund for each sale of
shares (excluding reinvestment of dividends and distributions), such payment to
be made in the manner set forth in this paragraph 5. The Principal Underwriter
shall also be entitled to be paid by the Fund a separate distribution fee
(calculated in accordance with paragraph 5(d)), such payment to be made in the
manner set forth and subject to the terms of this paragraph 5.
(d) The sales commissions and distribution fees referred to in
paragraph 5(c) shall be accrued and paid by the Fund in the following manner.
The Fund shall accrue daily an amount calculated at the rate of .75% per annum
of the daily net assets of the Fund, which net assets shall be computed as
described in paragraph 2. The daily amounts so accrued throughout the month
shall be paid to the Principal Underwriter on the last day of each month. The
amount of such daily accrual, as so calculated, shall first be applied and
charged to all unpaid sales commissions, and the balance, if any, shall then be
applied and charged to all unpaid distribution fees. No amount shall be accrued
with respect to any day on which there exist no outstanding uncovered
distribution charges of the Principal Underwriter. The amount of such uncovered
distribution charges shall be calculated daily. For purposes of this
calculation, distribution charges of the Principal Underwriter shall include (a)
the aggregate of all sales commissions which the Principal Underwriter has been
paid pursuant to this paragraph (d) (and pursuant to paragraph (d) of the
Original Agreement) plus all sales commissions which it is entitled to be paid
pursuant to paragraph 5(c) (and pursuant to paragraph 5(c) of the Original
Agreement) since inception of the Original Agreement through and including the
day next preceding the date of calculation, and (b) an amount equal to the
aggregate of all distribution fees referred to below which the Principal
Underwriter has been paid pursuant to this paragraph (d) (and pursuant to
paragraph (d) of the Original Agreement) plus all such fees which it is entitled
to be paid pursuant to paragraph 5(c) (and pursuant to paragraph 5(c) of the
Original Agreement) since inception of the Original Agreement through and
including the day next preceding the date of calculation. From this sum
(distribution charges) there shall be subtracted (i) the aggregate amount paid
or payable to the Principal Underwriter pursuant to this paragraph (d) (and
pursuant to paragraph (d) of the Original Agreement) since inception of the
Original Agreement through and including the day next preceding the date of
calculation and (ii) the aggregate amount of all contingent deferred sales
charges paid or payable to the Principal Underwriter since inception of the
Original Agreement through and including the day next preceding the date of
calculation. If the result of such subtraction is a positive amount, a
distribution fee [computed at the rate of 1% per annum above the prime rate
(being the base rate on corporate loans posted by at least 75% of the nation's
30 largest banks) then being reported in the Eastern Edition of the Wall Street
Journal or if such prime rate is not so reported such other rate as may be
designated from time to time by vote or other action of a majority of (i) those
Trustees of the Trust who are not "interested persons" of the Trust (as defined
in the 1940 Act) and have no direct or indirect financial interest in the
operation of the Plan or any agreements related to it (the "Rule 12b-1
Trustees") and (ii) all of the Trustees then in office] shall be computed on
such amount and added to such amount, with the resulting sum constituting the
amount of outstanding uncovered distribution charges of the Principal
Underwriter with respect to such day for all purposes of this Agreement. If the
result of such subtraction is a negative amount, there shall exist no
outstanding uncovered distribution charges of the Principal Underwriter with
respect to such day and no amount shall be accrued or paid to the Principal
Underwriter with respect to such day. The aggregate amounts accrued and paid
pursuant to this paragraph (d) during any fiscal year of the Fund shall not
exceed .75% of the average daily net assets of the Fund for such year.
(e) The Principal Underwriter shall be entitled to receive all
contingent deferred sales charges paid or payable with respect to any day on
which there exist outstanding uncovered distribution charges of the Principal
Underwriter. The Fund shall be entitled to receive all remaining contingent
deferred sales charges paid or payable by shareholders with respect to any day
on which there exist no outstanding uncovered distribution charges of the
Principal Underwriter, provided that no such sales charge which would cause the
Fund to exceed the maximum applicable cap imposed thereon by paragraph (2) of
subsection (d) of Section 26 of Article III of the Rules of Fair Practice of the
National Association of Securities Dealers, Inc. shall be imposed.
(f) The persons authorized to direct the disposition of monies paid or
payable on behalf of the Fund pursuant to the Plan or this Agreement shall be
the President or any Vice President of the Trust. Such persons shall provide to
the Trust's Trustees and the Trustees shall review, at least quarterly, a
written report of the amounts so expended and the purposes for which such
expenditures were made.
(g) In addition to the payments to the Principal Underwriter provided
for in paragraph 5(d), the Fund may make payments of service fees to the
Principal Underwriter, Authorized Firms and other persons. The aggregate of such
payments during any fiscal year of the Fund shall not exceed .25% of the Fund's
average daily net assets for such year.
6. The Trust hereby authorizes the Principal Underwriter to repurchase,
upon the terms and conditions set forth in written instructions given by the
Trust to the Principal Underwriter from time to time, as agent of the Fund and
for its account, such shares of the Fund as may be offered for sale to the Fund
from time to time.
(a) The Principal Underwriter shall notify in writing IBT and TSSG at
the end of each business day, or as soon thereafter as the repurchases in each
pricing period have been compiled, of the number of shares repurchased for the
account of the Fund since the last previous report, together with the prices at
which such repurchases were made, and upon the request of any officer or Trustee
of the Trust shall furnish similar information with respect to all repurchases
made up to the time of the request on any day.
(b) The Trust reserves the right to suspend or revoke the foregoing
authorization at any time; unless otherwise stated, any such suspension or
revocation shall be effective forthwith upon receipt of notice thereof by an
officer of the Principal Underwriter, by telegraph or by written instrument from
an officer of the Trust duly authorized by its Trustees. In the event that the
authorization of the Principal Underwriter is, by the terms of such notice,
suspended for more than twenty-four hours or until further notice, the
authorization given by this paragraph 6 shall not be revived except by action of
a majority of the Trustees of the Trust.
(c) The Principal Underwriter shall have the right to terminate the
operation of this paragraph 6 upon giving to the Trust thirty (30) days' written
notice thereof.
(d) The Trust agrees to authorize and direct IBT to pay, for the
account of the Fund, the purchase price of any shares so repurchased against
delivery of the certificates in proper form for transfer to the Fund or for
cancellation by the Fund.
(e) The Principal Underwriter shall receive no commission in respect of
any repurchase of shares under the foregoing authorization and appointment as
agent, except for any sales commission, distribution fee or contingent deferred
sales charges payable under paragraph 5.
(f) The Trust agrees that the Fund will reimburse the Principal
Underwriter, from time to time on demand, for any reasonable expenses incurred
in connection with the repurchase of shares of the Fund pursuant to this
paragraph 6.
7. If, at any time during the existence of this Agreement, the Trust
shall deem it necessary or advisable in the best interests of the Fund that any
amendment of this Agreement be made in order to comply with the recommendations
or requirements of the Commission or other governmental authority or to obtain
any advantage under Massachusetts or federal tax laws, and shall notify the
Principal Underwriter of the form of amendment which it deems necessary or
advisable and the reasons therefor, and, if the Principal Underwriter declines
to assent to such amendment, the Trust may terminate this Agreement forthwith by
written notice to the Principal Underwriter. If, at any time during the
existence of its agreement upon request by the Principal Underwriter, the Trust
fails (after a reasonable time) to make any changes in its Declaration of Trust,
as amended, or in its methods of doing business which are necessary in order to
comply with any requirement of federal law or regulations of the Commission or
of a national securities association of which the Principal Underwriter is or
may be a member, relating to the sale of the shares of the Fund, the Principal
Underwriter may terminate this Agreement forthwith by written notice to the
Trust.
8. The term "net asset value" as used in this Agreement with reference
to the shares of the Fund shall have the same meaning as used in the Declaration
of Trust, as amended, and calculated in the manner referred to in paragraph 2
above.
9. (a) The Principal Underwriter is a corporation in the United States
organized under the laws of Massachusetts and holding membership in the National
Association of Securities Dealers, Inc., a securities association registered
under Section 15A of the Securities Exchange Act of 1934, as amended from time
to time, and during the life of this Agreement will continue to be so resident
in the United States, so organized and a member in good standing of said
Association. The Principal Underwriter will comply with the Trust's Declaration
of Trust and By-Laws, and the 1940 Act and the rules promulgated thereunder,
insofar as they are applicable to the Principal Underwriter.
(b) The Principal Underwriter shall maintain in the United States
and preserve therein for such period or periods as the Commission shall
prescribe by rules and regulations applicable to it as Principal Underwriter of
an open-end investment company registered under the 1940 Act such accounts,
books and other documents as are necessary or appropriate to record its
transactions with the Fund. Such accounts, books and other documents shall be
subject at any time and from time to time to such reasonable periodic, special
and other examinations by the Commission or any member or representative thereof
as the Commission may prescribe. The Principal Underwriter shall furnish to the
Commission within such reasonable time as the Commission may prescribe copies of
or extracts from such records which may be prepared without effort, expense or
delay as the Commission may by order require.
10. This Agreement shall continue in force indefinitely until
terminated as in this Agreement above provided, except that:
(a) this Agreement shall remain in effect through and including
April 28, 1996 and shall continue in full force and effect indefinitely
thereafter, but only so long as such continuance is specifically approved at
least annually (i) by the vote of a majority of the Rule 12b-1 Trustees cast in
person at a meeting called for the purpose of voting on such approval, and (ii)
by the Trustees of the Trust or by vote of a majority of the outstanding voting
securities of the Fund;
(b) this Agreement may be terminated at any time by vote of a
majority of the Rule 12b-1 Trustees or by vote of a majority of the outstanding
voting securities of the Fund on not more than sixty (60) days' notice to the
Principal Underwriter. The Principal Underwriter shall be entitled to receive
all contingent deferred sales charges paid or payable with respect to any day
subsequent to the termination of this Agreement;
(c) the Principal Underwriter shall have the right to terminate this
Agreement on six (6) months' written notice thereof given in writing to the
Fund; and
(d) the Trust shall have the right to terminate this Agreement
forthwith in the event that it shall have been established by a court of
competent jurisdiction that the Principal Underwriter or any director or officer
of the Principal Underwriter has taken any action which results in a breach of
the covenants set out in paragraph 9 hereof.
11. In the event of the assignment of this Agreement by the Principal
Underwriter, this Agreement shall automatically terminate.
12. Any notice under this Agreement shall be in writing, addressed and
delivered, or mailed postage paid, to the other party, at such address as such
other party may designate for the receipt of such notices. Until further notice
to the other party, it is agreed that the record address of the Trust and that
of the Principal Underwriter, shall be 24 Federal Street, Boston, Massachusetts
02110.
13. The services of the Principal Underwriter to the Fund hereunder are
not to be deemed to be exclusive, the Principal Underwriter being free to (a)
render similar service to, and to act as principal underwriter in connection
with the distribution of shares of, other series of the Trust or other
investment companies, and (b) engage in other business and activities from time
to time.
14. The terms "vote of a majority of the outstanding voting
securities," "assignment" and "interested persons," when used herein, shall have
the respective meanings specified in the 1940 Act, subject, however, to such
exemptions as may be granted by the Commission by any rule, regulation or order.
15. The Principal Underwriter expressly acknowledges the provision in
the Trust's Declaration of Trust limiting the personal liability of the
shareholders of the Fund or the Trustees of the Trust. The Principal Underwriter
hereby agrees that it shall have recourse to the Trust or the Fund for payment
of claims or obligations as between the Trust or the Fund and the Principal
Underwriter arising out of this Agreement and shall not seek satisfaction from
the shareholders or any shareholder of the Trust or from the Trustees or any
Trustee of the Trust. The Fund shall not be responsible for obligations of any
other series of the Trust.
16. All references in this Agreement to the "Original Agreement" shall
mean the Distribution Agreement dated October 21, 1987, amended and replaced
July 7, 1993 between the Trust's predecessor on behalf of the Fund's predecessor
and the Principal Underwriter. The Trust and the Fund are the successors in
operations to their predecessors (EV Marathon Gold & Natural Resources Fund, a
Massachusetts business trust) pursuant to a reorganization and the Trustees of
the Trust have determined that it is desirable to replace the Original Agreement
with a distribution agreement with substantially the same terms.
17. This Agreement shall replace and be substituted for the Original
Agreement as of the opening of business on September 1, 1995, and this Agreement
shall be effective as of such time. The outstanding uncovered distribution
charges of the Principal Underwriter calculated under the Original Agreement as
of the close of business on August 31, 1995 shall be the outstanding uncovered
distribution charges of the Principal Underwriter calculated under this
Agreement as of the opening of business on September 1, 1995.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement
the 15th day of August, 1995.
EATON VANCE GROWTH TRUST
(on behalf of EV MARATHON GOLD & NATURAL
RESOURCES FUND)
By/s/ James B. Hawkes
-------------------------------------
President
EATON VANCE DISTRIBUTORS INC.
By/s/ H. Day Brigham Jr.
-------------------------------------
Vice President
EXHIBIT 99.6(b)
[LOGO] EATON VANCE DISTRIBUTORS, INC.
24 Federal Street, Boston, MA 02110
SELLING GROUP AGREEMENT
As the principal underwriter of the shares of the Eaton Vance Group of Funds, we
(Eaton Vance Distributors, Inc.) agree to sell to you shares of each of the
Funds purchased by us from the Funds for resale upon the following terms and
conditions:
1. (a) In all resales to the public of shares of the Funds having an initial
sales charge (SC Funds) sold to you by us (i) you shall sell at the
applicable public offering price described in the then-current prospectus of
the Fund whose shares are being resold; (ii) you shall act as dealer; and
(iii) your discount with respect to the resale shall be as set forth in the
applicable schedule of dealer discounts issued by us and in effect at the
time of the sale by us to you of such shares. Such schedules are subject to
change or discontinuance by us from time to time as set forth below.
(b) In all resales to the public of shares of Funds having a contingent
deferred sales charge or early withdrawal charge (CDSC Funds) sold to you by
us (i) you shall sell at the applicable net asset value described in the
then-current prospectus of the Fund whose shares are being resold; (ii) you
shall act as dealer; and (iii) your sales commission with respect to the
resale shall be as set forth in the schedule of sales commissions issued by
us and in effect at the time of the sale by us to you of such shares. Such
schedules are subject to change or discontinuance by us from time to time as
set forth below.
(c) In the case of a Fund which has adopted a distribution plan pursuant to
Rule 12b-1 under the Investment Company Act, we or the Fund may from time to
time elect to make payments to you as contemplated by such plan and as
described in the then-current prospectus or statement of additional
information of the Fund. Any such payment shall be made in the manner set
forth in the schedule of distribution plan payments issued by us and in
effect at the time such payment is made. Such schedules are subject to change
or discontinuance by us from time to time and as set forth below.
2. (a) The placing of orders with us shall be governed by instructions which we
shall issue from time to time. Payment for shares ordered from us shall be
received by us within five days after our acceptance of your order. If such
payment is not received by us, we reserve the right, without notice,
forthwith to cancel the sale, or, at our option, to sell the shares ordered
back to the issuer, in which latter case we may hold you responsible for any
loss, including loss of profit, suffered by us resulting from your failure to
make payment as aforesaid.
(b) Shares sold to you hereunder shall be available to you for delivery
against payment at the office of our agent as indicated on our trade
confirmation, unless other arrangements are made with us for delivery and
payment.
(c) You appoint the transfer agent for each Fund as your agent to execute
customers purchases of Fund shares sold to you by us in accordance with the
terms and provisions of any account, program, plan or service established or
used by your customers and to confirm each such purchase to your customers on
your behalf, and you guarantee the legal capacity of your customers so
purchasing such shares and any co-owners of such shares. All sales of fund
shares sold through you hereunder shall be deemed to be made in Boston,
Massachusetts, and title to such shares shall pass in Boston, Massachusetts.
3. Upon request, we will furnish you with a reasonable number of copies of the
then-current prospectus and statement of additional information of any of the
Funds and the printed information referred to in paragraph 5 below issued as
supplemental thereto.
4. We both represent to each other that we are broker-dealers registered under
the Securities Exchange Act of 1934, as amended, and are members of the
National Association of Securities Dealers, Inc. (NASD). We both agree to
abide by all the rules and regulations of the NASD applicable to the sale of
investment company shares, and to the following provisions:
(a) we shall not purchase Fund shares from the Funds except for the purpose
of covering purchase orders already received by us, and you shall not
purchase Fund shares from us other than for investment except for the purpose
of covering purchase orders already received by you;
(b) you shall not withhold placing customers orders for Fund shares so as to
profit yourself as a result of such withholding, e.g., by virtue of a change
in the net asset value from that used in determining the offering price to
your customers;
(c) we shall not accept a conditional order for Fund shares on any basis
other than a definite specified price;
(d) if shares of a SC Fund are repurchased by the issuing Fund or by us for
the account of such Fund or are tendered for redemption within seven business
days after confirmation by us of your original purchase order for such
shares, (i) you shall forthwith refund to us the full discount allowed to you
on the original sale and (ii) we shall forthwith pay to such Fund our share
of the sales charge on the original sale by us and shall also pay such Fund
the refund received under clause (i) when we receive it. You shall be
notified by us of such repurchase or redemption within ten days of the date
on which the certificate, or, in the case of uncertificated shares, a
properly executed stock power together with appropriate supporting papers is
delivered to us or to such Fund (delivery to the Funds transfer agent is
delivery to the Fund).
(e) if shares of a CDSC Fund other then Eaton Vance Prime Rate Reserves are
repurchased by the issuing Fund or by us for the account of such Fund or are
tendered for redemption within seven business days after confirmation by us
of your original purchase order for such shares, (i) you shall forthwith
refund to us the full sales commission paid to you on the original sale and
(ii) we shall forthwith pay to such Fund any sales commission paid by the
Fund to us on the original sale by us. You shall be notified by us of such
repurchase or redemption within ten days of the date on which the
certificate, or, in the case of uncertificated shares, a properly executed
stock power together with appropriate supporting papers is delivered to us or
to such Fund (delivery to the Funds transfer agent is delivery to the Fund).
(f) neither we nor you shall, as principal, purchase Fund shares from a
record holder at a price lower than the bid price next quoted by or for the
issuing Fund;
(g) you agree that you will not make a secondary market in the shares of
Eaton Vance Prime Rate Reserves, and that you will not purchase or hold
shares of Eaton Vance Prime Rate Reserves for purposes of resale to your
customer; and
(h) nothing in this agreement shall prevent you from selling Fund shares for
the account of a record owner to us or the issuing Fund and charging the
investor a reasonable charge for handling the transaction, provided you
disclose to such record owner that direct redemption of the shares can be
accomplished by the record owner without incurring such charge.
5. Under this agreement you are not employed by us or by the Funds as broker,
agent, employee or representative, nor are you authorized to make any
representations on our behalf. No person is authorized to make any
representations concerning Fund shares except those contained in the
then-current prospectus and statement of additional information and in such
printed information subsequently issued to you by us or by the Funds as
supplemental to such prospectus and statement of additional information. In
buying Fund shares shares from us or selling shares to us hereunder, you
shall rely solely on the representations contained in the appropriate
prospectus and statement of additional information and in the supplemental
information mentioned in the preceding sentence. We or the Fund shall bear
the expense of qualifying Fund shares under the securities laws of the
various states, and any printed information which we shall furnish you (other
than the Funds prospectuses and statements of additional information and
periodic reports and printed information subsequently issued by the Fund as
supplemental to such prospectuses and statements of additional information)
is our sole responsibility; you agree that the Funds shall have no liability
or responsibility to you in these respects.
6. All orders are subject to acceptance or rejection by us. We reserve the
right in our discretion, without notice, to suspend sales or to withdraw the
offering of Fund shares, in whole or in part, or to make a limited offering
of Fund shares. Either of us may cancel this agreement upon ten days written
notice to the other. Upon written notice to you, we may change or amend any
provision of this agreement or restate this agreement in its entirety. Upon
written notice to you, we may change, amend or discontinue any schedule or
schedules of dealer discounts, of sale commissions and of distribution plan
payments from time to time and we may issue a new or replacement schedule or
schedules of dealer discounts, of sales commissions and of distribution plan
payments from time to time. You hereby agree that you shall have no vested
interest in any type or level of discount, sales commission, distribution
assistance payment or service fee, and that you shall have no claim against
us or any Fund by virtue of any change or diminution in the rate or amount
of, or discontinuance of, any discount, sales commission, distribution
assistance payment or service fee in connection with shares of any Fund. Upon
your ceasing to be a member of the NASD, this agreement shall automatically
terminate.
7. As used herein, the following terms shall have the meaning hereinafter set
forth (unless a different meaning is plainly required by the context):
(a) Eaton Vance Group of Funds shall mean the investment companies the shares
of which from time to time shall be offered by us as principal underwriter
for sale to you hereunder and which are designated by us as such from time to
time by notice to you.
(b) Fund shall mean any one of the Eaton Vance Group of Funds.
8. All communications to us should be sent to the above address. Any notice to
you shall be duly given if mailed or telegraphed to you at the address
specified by you below. If you are already a member of our selling group,
this agreement amends and restates our existing agreement and shall become
binding on you and us on the date of your first order for shares of any Fund
sold to you by us subsequent to our furnishing a copy of this agreement to
you. If you are about to become a new member of our selling group, this
agreement shall become binding upon receipt by us in Boston of a counterpart
hereof duly accepted and signed by you. This agreement shall be construed in
accordance with the laws of Massachusetts.
EATON VANCE DISTRIBUTORS, INC.
/s/ W.P. Whitaker
DATED:------------------------------ BY:----------------------------------
President
ACCEPTED
FIRM: ------------------------------------------------------------------------
BY: --------------------------------------------------------------------------
Authorized Representative
ADDRESS: ---------------------------------------------------------------------
Restated 2/92
<PAGE>
[LOGO] EATON VANCE DISTRIBUTORS, INC.
24 Federal Street, Boston, MA 02110
SERVICE AGREEMENT
In connection with your providing various services to your customers, you desire
to make available to your customers, under an agency relationship with your
customers, shares of the Eaton Vance Group of Funds. As the principal
underwriter of the shares of the Eaton Vance Group of Funds, we (Eaton Vance
Distributors, Inc.) agree to make shares of the Funds available upon the
following terms and conditions:
l. (a) The customers in question are for all purposes your customers. We will
furnish you, without charge and on request, reasonable quantities of the
Funds prospectuses, statement of additional information, shareholder reports
and sales material. You will deliver a copy of the Funds current prospectus
to your customer prior to the placement of any order for shares on behalf of
such customer. We then will confirm transactions for each of your customers
only upon your authorization, it being understood in all cases that (i) you
are acting as the agent for the customer; (ii) the transactions are without
recourse against you by the customer except to the extent that your failure
to transmit orders in a timely fashion results in a loss to your customer;
(iii) as between you and the customer, the customer will have beneficial
ownership of the Fund shares; (iv) each transaction is initiated solely upon
the order of the customer; and (v) each transaction is for the account of the
customer and not for your account.
(b) Orders received from you will be accepted by us only at the public
offering price applicable to each order, except for transactions at net asset
value in accordance with the then-current Fund prospectus. The minimum dollar
purchase of shares of the Fund by any person shall be the applicable minimum
amount described in the then current Fund prospectus, and no order for less
than such amount will be accepted hereunder. The public offering price of
shares of Funds having an initial sales charge (SC Funds) shall be the net
asset value per share plus a sales charge, expressed as a percentage of the
applicable public offering price, as determined and effective as of the time
specified in the then-current SC Fund prospectus. Shares of Funds having a
contingent deferred sales charge or early withdrawal charge (CDSC Funds) are
sold at the applicable net asset value described in the then-current CDSC
Fund prospectus. The procedures relating to the handling of orders shall be
subject to instructions which we shall issue from time to time. All orders
are subject to acceptance or rejection by us in our sole discretion.
(c) The agency fees payable to you in connection with your services to your
customer shall be determined as provided in the applicable Fee Schedule
issued by us and in effect from time to time. Upon notice to you, we may
change, amend or discontinue the Fee Schedule at any time and we may issue a
new or replacement Fee Schedule from time to time. You shall have no vested
interest in any type or level of fee or payment of any kind, and you shall
have no claim against us or any Fund by virtue of any change or diminution in
the rate or amount of, or discontinuance of, any fee or payment in connection
with shares of any Fund acquired by your customers.
2. (a) The placing of orders with us shall be governed by instructions which we
shall issue from time to time. Payment for shares ordered from us shall be
received by us within five days after our acceptance of the order. If such
payment is not received by us, we reserve the right, without notice,
forthwith to cancel the sale, or, at our option, to sell the shares ordered
back to the issuer, in which latter case we may hold you responsible for any
loss, including loss of profit, suffered by us resulting from your failure to
make payment as aforesaid.
(b) Shares sold hereunder shall be available for delivery against payment at
the office of our agent as indicated on our trade confirmation unless other
arrangements are made with us for delivery and payment. Unless other
instructions are received by us on or before the settlement date, orders
accepted by us may be placed in an open account in your name. On each order
accepted by us for shares of a SC Fund, we understand that you will charge
your customer an initial agency fee in lieu of receiving from us a dealer
discount from the sales charge; on or before the settlement date of each such
transaction, you will remit the full offering price less an amount equal to
your initial agency fee and your customer will be credited in shares of the
SC Fund equal to such public offering price less the applicable initial
agency fee and less our share of any sales charge retained by us.
(c) You appoint the transfer agent for each Fund as your agent to execute
customers purchases of Fund shares sold through you by us in accordance with
the terms and provisions of any account, program, plan or service established
or used by your customers, and to confirm each such purchase to your
customers, and you guarantee the legal capacity of your customers so
purchasing such shares and any co-owners of such shares. All sales of Fund
shares sold through you hereunder shall be deemed to be made in Boston,
Massachusetts, and title to such shares shall pass in Boston, Massachusetts.
3. Upon request, we will furnish you a reasonable number of copies of the
then-current prospectus and statement of additional information of any of the
Funds and the printed information referred to in paragraph 5 below issued as
supplemental thereto.
4. We both represent to each other that we are broker-dealers registered under
the Securities Exchange Act of 1934, as amended, and are members of the
National Association of Securities Dealers, Inc. (NASD). We both agree to
abide by the rules and regulations of the NASD applicable to the sale of
investment company shares, and we both agree to the following provisions:
(a) we shall not purchase Fund shares from the Funds except for the purpose
of covering purchase orders already received by us, and you shall make Fund
shares available only for the purpose of covering purchase orders already
received by you;
(b) you shall not withhold placing customers orders for Fund shares so as to
profit yourself as a result of such withholding, e.g., by virtue of a change
in the net asset value from that used in determining the offering price to
your customers;
(c) we shall not accept a conditional order for Fund shares on any basis
other than a definite specified price;
(d) if shares of a SC Fund are repurchased by the issuing Fund or by us for
the account of such Fund or are tendered for redemption within seven business
days after confirmation by us of the original purchase order for such shares,
(i) you shall forthwith refund to us the full initial agency fee allowed to
you on the original sale and (ii) we shall forthwith pay to such Fund our
share of the sales charge on the original sale by us and shall also pay such
Fund the refund received under clause (i) when we receive it. You shall be
notified by us of such repurchase or redemption within ten days of the date
on which the certificate or, in the case of uncertificated shares, a properly
executed stock power together with appropriate supporting papers is delivered
to us or to such Fund (delivery to the Funds transfer agent is delivery to
the Fund);
(e) if shares of a CDSC Fund other than Eaton Vance Prime Rate Reserves are
repurchased by the issuing Fund or by us for the account of such Fund or are
tendered for redemption within seven business days after confirmation by us
of the original purchase order for such shares, (i) you shall forthwith
refund to us the full initial agency fee paid to you on the original sale and
(ii) we shall forthwith pay to such Fund any sales commission paid by the
Fund to us on the original sale by us. You shall be notified by us of such
repurchase or redemption within ten days of the date on which the certificate
or, in the case of uncertificated shares, a properly executed stock power
together with appropriate supporting papers, is delivered to us or to such
Fund (delivery to the Funds transfer agent is delivery to the Fund);
(f) neither we nor you shall, as principal, purchase Fund shares from a
record holder at a price lower than the bid price next quoted by or for the
issuing Fund;
(g) you agree that you will not make a secondary market in the shares of
Eaton Vance Prime Rate Reserves and that you will not purchase or hold shares
of Eaton Vance Prime Rate Reserves for purposes of resale to your customers;
and
(h) nothing in this agreement shall prevent you from selling Fund shares for
the account of a record owner to us or the issuing Fund and charging the
investor a reasonable charge for handling the transaction, provided you
disclose to such record owner that direct redemption of the shares can be
accomplished by the record owner without incurring such charge.
5. Under this agreement you are not employed by us or by the Funds as broker,
agent, employee or representative, nor are you authorized to make any
representations on our behalf. No person is authorized to make any
representations concerning Fund shares except those contained in the
then-current prospectus and statement of additional information and in such
printed information subsequently issued to you by us or by the Funds as
supplemental to such prospectus and statement of additional information. In
making Fund shares available to your customers hereunder, you shall rely
solely on the representations contained in the appropriate prospectus and
statement of additional information and in the supplemental information
mentioned in the preceding sentence. We or the Fund shall bear the expense of
qualifying Fund shares under the securities laws of the various states, and
any printed information which we shall furnish you (other than the Funds
prospectuses and statements of additional information and periodic reports
and printed information subsequently issued by the Fund as supplemental to
such prospectuses and statements of additional information) is our sole
responsibility; you agree that the Funds shall have no liability or
responsibility to you in these respects.
6. Because only you will have a direct relationship with your customers, you
will be responsible for insuring compliance with all laws and regulations
including those of the regulatory authorities directly applicable to you and
any other federal or state regulatory body having jurisdiction over you or
your customers to the extent applicable to securities purchases hereunder for
the account of your customers. You shall be obligated to deliver the
then-current Fund prospectus to your customer in accordance with the
applicable federal and state securities laws; and you agree that either you
or a clearing broker through which you clear transactions for your customer
will comply with the recordkeeping requirements of Section 17(a) of the
Securities Exchange Act of 1934 and any rules or regulations thereunder.
7. We reserve the right in our discretion, without notice, to suspend sales or
to withdraw the offering of Fund shares, in whole or in part, or to make a
limited offering of Fund shares. Either of us may cancel this agreement upon
written notice to the other. Upon written notice to you, we may change or
amend any provision of this agreement or restate this agreement in its
entirety. Upon your ceasing to be a member of the NASD, this agreement shall
automatically terminate.
8. As used herein, the following terms shall have the meaning hereinafter set
forth (unless a different meaning is plainly required by the context):
(a) Eaton Vance Group of Funds shall mean the investment companies the shares
of which from time to time shall be made available by us hereunder and which
are designated by us as such from time to time by notice to you.
(b) Fund shall mean any one of the Eaton Vance Group of Funds.
9. All communications to us should be sent to the above address. Any notice to
you shall be duly given if mailed or telegraphed to you at the address
specified by you below.
This agreement shall become binding upon receipt by us in Boston of a
counterpart hereof duly accepted and signed by you. This agreement shall be
construed in accordance with the laws of Massachusetts.
EATON VANCE DISTRIBUTORS, INC.
/s/ W.P. Whitaker
DATED:------------------------------ BY:----------------------------------
President
ACCEPTED
FIRM: ------------------------------------------------------------------------
BY: --------------------------------------------------------------------------
Authorized Representative
ADDRESS: ---------------------------------------------------------------------
Restated 2/92
<PAGE>
SERVICE AGREEMENT &
EATON VANCE DISTRIBUTORS, INC. BANK SERVICE AGREEMENT
SCHEDULE OF AGENCY FEES & SERVICE FEES FEE SCHEDULE
SALES ANNUAL
MARATHON FAMILY OF FUNDS COMMISSION SERVICE FEE
(Back-end Pricing) (% OF NAV) (PAID QUARTERLY)#
I. CDSC Declining Over 6 Yrs.
EV Marathon Emerging Markets Fund 4% .25%
Eaton Vance Equity-Income Trust 4% .25%
EV Marathon Government Obligations Fund 4% .25%
EV Marathon Greater China Growth Fund 4% .25%
EV Marathon Greater India Fund 4% .25%
EV Marathon High Income Fund 4% .25%
EV Marathon Investors Fund 4% .25%
Eaton Vance Liquid Assets Trust 4% .25%
EV Marathon Gold & Natural Resources Fund 4% .25%
EV Marathon Total Return Fund 4% .25%
EV Marathon National Municipals Fund 4% .25%
EV Marathon Alabama Tax Free Fund 4% .20%
EV Marathon Arizona Tax Free Fund 4% .20%
EV Marathon Arkansas Tax Free Fund 4% .20%
EV Marathon California Municipals Fund 4% .25%
EV Marathon Colorado Tax Free Fund 4% .20%
EV Marathon Connecticut Tax Free Fund 4% .20%
EV Marathon Florida Tax Free Fund 4% .20%
EV Marathon Florida Insured Tax Free Fund 4% .20%
EV Marathon Georgia Tax Free Fund 4% .20%
EV Marathon Growth Fund 4% .25%
EV Marathon Hawaii Tax Free Fund 4% .20%
EV Marathon Kansas Tax Free Fund 4% .20%
EV Marathon Kentucky Tax Free Fund 4% .20%
EV Marathon Louisiana Tax Free Fund 4% .20%
EV Marathon Maryland Tax Free Fund 4% .20%
EV Marathon Massachusetts Tax Free Fund 4% .20%
EV Marathon Michigan Tax Free Fund 4% .20%
EV Marathon Minnesota Tax Free Fund 4% .20%
EV Marathon Mississippi Tax Free Fund 4% .20%
EV Marathon Missouri Tax Free Fund 4% .20%
EV Marathon New Jersey Tax Free Fund 4% .20%
EV Marathon New York Tax Free Fund 4% .20%
EV Marathon North Carolina Tax Free Fund 4% .20%
EV Marathon Ohio Tax Free Fund 4% .20%
EV Marathon Oregon Tax Free Fund 4% .20%
EV Marathon Pennsylvania Tax Free Fund 4% .20%
EV Marathon Rhode Island Tax Free Fund 4% .20%
EV Marathon South Carolina Tax Free Fund 4% .20%
EV Marathon Special Equities Fund 4% .25%
EV Marathon Stock Fund 4% .25%
EV Marathon Tennessee Tax Free Fund 4% .20%
EV Marathon Texas Tax Free Fund 4% .20%
EV Marathon Virginia Tax Free Fund 4% .20%
EV Marathon West Virginia Tax Free Fund 4% .20%
<PAGE>
II. CDSC DECLINING OVER 4 YRS.
EV Marathon Strategic Income Fund 3.5% .25%
EV Marathon National Ltd. Mat. Tax Free Fund 2.5% .15%
EV Marathon Arizona Ltd. Mat. Tax Free Fund 2.5% .15%
EV Marathon California Ltd. Mat. Tax Free Fund 2.5% .15%
EV Marathon Connecticut Ltd. Mat. Tax Free Fund 2.5% .15%
EV Marathon Florida Ltd. Mat. Tax Free Fund 2.5% .15%
EV Marathon Massachusetts Ltd. Mat. Tax Free Fund 2.5% .15%
EV Marathon Michigan Ltd. Mat. Tax Free Fund 2.5% .15%
EV Marathon New Jersey Ltd. Mat. Tax Free Fund 2.5% .15%
EV Marathon New York Ltd. Mat. Tax Free Fund 2.5% .15%
EV Marathon North Carolina Ltd. Mat. Tax Free Fund 2.5% .15%
EV Marathon Ohio Ltd. Mat. Tax Free Fund 2.5% .15%
EV Marathon Pennsylvania Ltd. Mat. Tax Free Fund 2.5% .15%
EV Marathon Virginia Ltd. Mat. Tax Free Fund 2.5% .15%
ANNUAL
MARATHON FAMILY OF FUNDS SERVICE FEE
(Back-end Pricing) (PAID QUARTERLY)#
II. CDSC Declining Over 4 Yrs. (cont.)
Eaton Vance Prime Rate Reserves
(Sales commission of 3%)
ANNUAL SERVICE FEE SCHEDULE:
Year 1 0 bp
Year 2 10 bp
Year 3 15 bp
Year 4 20 bp
Year 5 25 bp
Year 6 30 bp
PAYMENT AT ANNUAL
CLASSIC FAMILY OF FUNDS TIME OF SALE* COMPENSATION*
(Level Pricing) (% OF NAV) (PAID MONTHLY)#
III. 1% CDSC FOR FIRST 12 MONTHS
EV Classic Government Obligations Fund 1% 100bp
EV Classic Greater China Growth Fund 1% 100bp
EV Classic Investors Fund 1% 100bp
EV Classic Total Return Fund 1% 100bp
EV Classic National Municipals Fund 1% 100bp
EV Classic National Limited Maturity Tax Free Fund 1% 90bp
EV Classic Alabama Tax Free Fund 1% 95bp
EV Classic Arizona Tax Free Fund 1% 95bp
EV Classic Arkansas Tax Free Fund 1% 95bp
EV Classic California Municipals Fund 1% 100bp
EV Classic California Ltd. Mat. Tax Free Fund 1% 90bp
EV Classic Colorado Tax Free Fund 1% 95bp
EV Classic Connecticut Tax Free Fund 1% 95bp
EV Classic Connecticut Ltd. Mat. Tax Free Fund 1% 90bp
EV Classic Florida Tax Free Fund 1% 95bp
EV Classic Florida Ltd. Mat. Tax Free Fund 1% 90bp
EV Classic Florida Insured Tax Free Fund 1% 95bp
EV Classic Georgia Tax Free Fund 1% 95bp
EV Classic Growth Fund 1% 100bp
EV Classic High Income Fund 1% 100bp
EV Classic Hawaii Tax Free Fund 1% 95bp
EV Classic Kansas Tax Free Fund 1% 95bp
EV Classic Kentucky Tax Free Fund 1% 95bp
EV Classic Louisiana Tax Free Fund 1% 95bp
EV Classic Maryland Tax Free Fund 1% 95bp
EV Classic Massachusetts Tax Free Fund 1% 95bp
EV Classic Massachusetts Ltd. Mat. Tax Free Fund 1% 90bp
EV Classic Michigan Tax Free Fund 1% 95bp
EV Classic Michigan Ltd. Mat. Tax Free Fund 1% 90bp
EV Classic Minnesota Tax Free Fund 1% 95bp
EV Classic Mississippi Tax Free Fund 1% 95bp
EV Classic Missouri Tax Free Fund 1% 95bp
EV Classic New Jersey Tax Free Fund 1% 95bp
EV Classic New Jersey Ltd. Mat. Tax Free Fund 1% 90bp
EV Classic New York Tax Free Fund 1% 95bp
EV Classic New York Ltd. Mat. Tax Free Fund 1% 90bp
EV Classic North Carolina Tax Free Fund 1% 95bp
EV Classic Ohio Tax Free Fund 1% 95bp
EV Classic Ohio Ltd. Mat. Tax Free Fund 1% 90bp
EV Classic Oregon Tax Free Fund 1% 95bp
EV Classic Pennsylvania Tax Free Fund 1% 95bp
EV Classic Pennsylvania Ltd. Mat. Tax Free Fund 1% 90bp
EV Classic Rhode Island Tax Free Fund 1% 95bp
EV Classic Senior-Floating Rate Fund 1% 75bp
EV Classic Strategic Income Fund 1% 100bp
EV Classic South Carolina Tax Free Fund 1% 95bp
EV Classic Special Equities Fund 1% 100bp
EV Classic Stock Fund 1% 100bp
EV Classic Tennessee Tax Free Fund 1% 95bp
EV Classic Texas Tax Free Fund 1% 95bp
EV Classic Virginia Tax Free Fund 1% 95bp
EV Classic West Virginia Tax Free Fund 1% 95bp
# 13-month hold
* See current prospectus which explains what portions of each payment constitute
a sales commission and a service fee.
June 30, 1995
<PAGE>
TRADITIONAL FAMILY OF FUNDS
(Front-end Pricing)
TAXABLE FIXED-INCOME AND
LONG-TERM TAX FREE FUNDS
AMOUNT OF PURCHASE SALES CHARGE DEALER DISCOUNT
(TAX FREE FUNDS) (% OF OFFERING PRICE)
Less than $ 50,000 3.75% 4.00%
$ 50,000 - 100,000 2.75 3.00
$ 100,000 - 250,000 2.25 2.50
$ 250,000 - 500,000 1.75 2.00
$ 500,000 - 1,000,000 1.25 1.50
$1,000,000 and over 0.00 0.25
SERVICE FEE
(PAID QUARTERLY)#
EV Traditional Government Obligations Fund . .25%
Eaton Vance Income Fund of Boston . .25%
Eaton Vance Municipal Bond Fund L.P. . None
EV Traditional National Municipals Fund .25%
EV Traditional California Municipals Fund .25%
EV Traditional Connecticut Tax Free Fund .20%
EV Traditional Florida Tax Free Fund .20%
EV Traditional Florida Insured Tax Free Fund .20%
EV Traditional New Jersey Tax Free Fund .20%
EV Traditional New York Tax Free Fund .20%
EV Traditional Pennsylvania Tax Free Fund .20%
LIMITED MATURITY TAX FREE FUNDS
AMOUNT OF PURCHASE SALES CHARGE DEALER DISCOUNT
(TAX FREE FUNDS) (% OF OFFERING PRICE)
Less than $ 50,000 2.50% 2.75%
$ 50,000 - 100,000 2.25 2.50
$ 100,000 - 250,000 1.75 2.00
$ 250,000 - 500,000 1.25 1.50
$ 500,000 - 1,000,000 0.75 1.00
$1,000,000 and over 0.00 0.25
Service Fee
(Paid Quarterly)#
EV Traditional National Limited Maturity Tax Free Fund .15%
EV Traditional Florida Limited Maturity Tax Free Fund .15%
EV Traditional New York Limited Maturity Tax Free Fund .15%
EQUITY FUNDS
AMOUNT OF PURCHASE SALES CHARGE DEALER DISCOUNT
(% OF OFFERING PRICE)
Up to $99,999 4.75% 4.00%
$ 100,000 - 249,999 3.75 3.15
$ 250,000 - 499,999 2.75 2.30
$ 500,000 - 999,999 2.00 1.70
$1,000,000 and over 0.00* 0.00**
Service Fee
(Paid Quarterly)#
EV Traditional Emerging Markets Fund .25%
EV Traditional Greater China Growth Fund .25%
EV Traditional Greater India Fund .25%
EV Traditional Growth Fund .25%
EV Traditional Investors Fund .25%
EV Traditional Special Equities Fund .25%
EV Traditional Stock Fund .25%
EV Traditional Total Return Fund .25%
* No sales charge is payable at the time of purchase on investments of $1
million or more. A contingent deferred sales charge of 1% will be imposed on
such investments in the event of certain redemption transactions within 18
months of purchase. See the funds current prospectuses for further details.
** The Principal Underwriter may pay a commission to Authorized Dealers who
initiate and are responsible for purchases of $1 million or more as follows:
1.00% on sales up to $2 million, plus 0.8% on the next million, 0.2% on the
next $2 million, and 0.08% on the excess of $5 million.
+ The Principal Underwriter may pay Authorized Firms that initiate and are
responsible for purchases of $1 million or more a commission, that, coupled
with the applicable service fee, is at an annual rate of .25% of average
daily net assets paid quarterly.
# 13-month hold
Eaton Vance Short-Term Treasury Fund ............... no initial sales charge
.......... .25% annual service fee, paid quarterly
NOTES
1. ALL MARATHON FUNDS (EXCLUDING PRIME RATE RESERVES, EV MARATHON STRATEGIC
INCOME FUND AND THE LIMITED MATURITY TAX FREE FUNDS)
The customer may be subject to a contingent deferred sales charge payable to
the fund or the Principal Underwriter at declining rates in the event such
customer redeems within the first six years of ownership, as described in
detail in the prospectus of the fund.
2. EV MARATHON STRATEGIC INCOME FUND AND THE LIMITED MATURITY TAX FREE FUNDS
The customer may be subject to a contingent deferred sales charge payable to
the fund or the Principal Underwriter at declining rates in the event such
customer redeems within the first four years of ownership, as described in
detail in the prospectus of the fund.
3. ALL CLASSIC FUNDS (EXCEPT EV CLASSIC SENIOR FLOATING-RATE FUND)
The customer may be subject to a contingent deferred sales charge payable to
the fund or the Principal Underwriter of 1% in the event such customer
redeems within the first year of ownership, as described in detail in the
prospectus of the fund.
4. PRIME RATE RESERVES - EARLY WITHDRAWAL CHARGE
The customer may be subject to an early withdrawal charge payable to the
Principal Underwriter at declining rates in the event shares held for less
than four years are accepted by the fund for repurchase pursuant to a tender
offer, as described in detail in the prospectus of the fund.
5. EV CLASSIC SENIOR FLOATING-RATE FUND - EARLY WITHDRAWAL CHARGE
The customer may be subject to an early withdrawal charge payable to the
Principal Underwriter of 1% in the event shares held for less than one year
are accepted by the fund for repurchase pursuant to a tender offer, as
described in detail in the prospectus of the fund.
Compensation
A. CLASSIC FUNDS -- Dealers receive (a) a monthly sales commission equal
to 1/12 of .75% of the value of shares sold to your customers and (b)
a monthly service fee payment equal to 1/12 of .15% to .25% of the
value of shares sold to your customers, each based on the annual n
asset value of fund shares owned and outstanding for at least one
year. Combined payments are equal to 75-100 basis points annualized.
Specifics of these payments can be found in the funds prospectuses,
in the section discussing Distribution Plan. Please see the schedule
for a complete fund-by-fund listing.
Service Fee
B. MARATHON FUNDS -- Dealers receive a service fee payment quarterly in
an amount equal to .15% to .25% on an annual basis of the net asset
value of fund shares owned for at least one year by your customers
for each quarter, such payment to begin the first quarter after the
quarter in which the first anniversary of the purchase occurs.
Specifics of these payments can be found in the funds prospectuses,
in the section discussing Distribution Plan. Please see the schedule
for a listing of fund participation.
C. TRADITIONAL FUNDS -- Dealers receive a service fee payment quarterly
in an amount equal to .15% to .25% on an annual basis of the net
asset value of fund shares owned for at least one year by your
customers for each quarter, such payment to begin the first quarter
after the quarter in which the first anniversary of the purchase
occurs (payments are not made in the case of funds where it is so
indicated). Specifics of these payments can be found in the funds
prospectuses, in the section discussing Service Plan. Please see the
schedule for listing of fund participation.
Distribution Reinvestments
All distributions are reinvested at net asset value.
xxxxx - 6\95 DSCS-B
<PAGE>
[LOGO] EATON VANCE DISTRIBUTORS, INC.
24 Federal Street, Boston, MA 02110
BANK SERVICE AGREEMENT
In connection with your providing various services to your customers, you desire
to make available to your customers, under an agency relationship with your
customers, shares of the Eaton Vance Group of Funds. As the principal
underwriter of the shares of the Eaton Vance Group of Funds, we (Eaton Vance
Distributors, Inc.) agree to make shares of the Funds available upon the
following terms and conditions:
l. (a) The customers in question are for all purposes your customers. We will
furnish you, without charge and on request, reasonable quantities of the
Funds prospectuses, statement of additional information, shareholder reports
and sales material. You will deliver a copy of the Funds current prospectus
to your customer prior to the placement of any order for shares on behalf of
such customer. We then will confirm transactions for each of your customers
only upon your authorization, it being understood in all cases that (i) you
are acting as the agent for the customer; (ii) the transactions are without
recourse against you by the customer except to the extent that your failure
to transmit orders in a timely fashion results in a loss to your customer;
(iii) as between you and the customer, the customer will have beneficial
ownership of the Fund shares; (iv) each transaction is initiated solely upon
the order of the customer; and (v) each transaction is for the account of the
customer and not for your account.
(b) Orders received from you will be accepted by us only at the public
offering price applicable to each order, except for transactions at net asset
value in accordance with the then-current Fund prospectus. The minimum dollar
purchase of shares of the Fund by any person shall be the applicable minimum
amount described in the then-current Fund prospectus, and no order for less
than such amount will be accepted hereunder. The public offering price of
shares of Funds having an initial sales charge (SC Funds) shall be the net
asset value per share plus a sales charge, expressed as a percentage of the
applicable public offering price, as determined and effective as of the time
specified in the then-current SC Fund prospectus. Shares of Funds having a
contingent deferred sales charge or early withdrawal charge (CDSC Funds) are
sold at the applicable net asset value described in the then-current CDSC
Fund prospectus. The procedures relating to the handling of orders shall be
subject to instructions which we shall issue from time to time. All orders
are subject to acceptance or rejection by us in our sole discretion.
(c) The agency fees payable to you in connection with your services to your
customer shall be determined as provided in the applicable Fee Schedule
issued by us and in effect from time to time. Upon notice to you, we may
change, amend or discontinue the Fee Schedule at any time and we may issue a
new or replacement Fee Schedule from time to time. You shall have no vested
interest in any type or level of fee or payment of any kind, and you shall
have no claim against us or any Fund by virtue of any change or diminution in
the rate or amount of, or discontinuance of, any fee or payment in connection
with shares of any Fund acquired by your customers.
2. (a) The placing of orders with us shall be governed by instructions which we
shall issue from time to time. Payment for shares ordered from us shall be
received by us within five days after our acceptance of the order. If such
payment is not received by us, we reserve the right, without notice,
forthwith to cancel the sale, or, at our option, to sell the shares ordered
back to the issuer, in which latter case we may hold you responsible for any
loss, including loss of profit, suffered by us resulting from your failure to
make payment as aforesaid.
(b) Shares sold hereunder shall be available for delivery against payment at
the office of our agent as indicated on our trade confirmation unless other
arrangements are made with us for delivery and payment. Unless other
instructions are received by us on or before the settlement date, orders
accepted by us may be placed in an open account in your name. On each order
accepted by us for shares of a SC Fund, we understand that you will charge
your customer an initial agency fee in lieu of receiving from us a dealer
discount from the sales charge; on or before the settlement date of each such
transaction, you will remit the full offering price less an amount equal to
your initial agency fee and your customer will be credited in shares of the
SC Fund equal to such public offering price less the applicable initial
agency fee and less our share of any sales charge retained by us.
(c) You appoint the transfer agent for each Fund as your agent to execute
customers purchases of Fund shares sold through you by us in accordance with
the terms and provisions of any account, program, plan or service established
or used by your customers, and to confirm each such purchase to your
customers, and you guarantee the legal capacity of your customers so
purchasing such shares and any co-owners of such shares. All sales of Fund
shares sold through you hereunder shall be deemed to be made in Boston,
Massachusetts, and title to such shares shall pass in Boston, Massachusetts.
3. You represent and warrant to us that (i) (a) your are a bank as such term is
defined in Section 3(a)(6) of the Securities Exchange Act of 1934, as
amended, or (b) you are a bank holding company as such term is defined in the
Bank Holding Company Act of 1956, as amended; (ii) you are a duly organized
and validly existing bank or bank holding company in good standing under the
laws of the jurisdiction in which you are organized; (iii) all authorization
(if any) required for your lawful execution of this Agreement and your
performance hereunder have been obtained; and (iv) upon execution and
delivery by you, and assuming due and valid execution and delivery by us,
this Agreement will constitute a valid and binding agreement, enforceable
against you in accordance with its terms. In the event you are a bank holding
company as such term is defined in the Bank Holding Company Act, you shall
complete the Exhibit attached to and made a part of this Agreement which sets
forth the names and addresses of the banks on whose behalf you are authorized
to execute this Agreement. You agree to give written notice to us promptly in
the event you shall cease to be a bank as such term is defined in Section
3(a)(6) of the Securities Exchange Act or a bank holding company as such term
is defined in the Bank Holding Company Act. In such event, this Agreement
shall be automatically terminated upon such written notice.
4. Upon request, we will furnish you a reasonable number of copies of the
then-current prospectus and statement of additional information of any of the
Funds and the printed information referred to in paragraph 5 below issued as
supplemental thereto.
5. We are a broker-dealer registered under the Securities Exchange Act of 1934,
as amended, and a member of the National Association of Securities Dealers,
Inc. (the NASD). While as a bank or bank holding company you are not a
broker-dealer or a member of the NASD, we nonetheless both agree to abide by
the rules and regulations of the NASD applicable to the sale of investment
company shares, and we both agree to the following provisions:
(a) we shall not purchase Fund shares from the Funds except for the purpose
of covering purchase orders already received by us, and you shall make Fund
shares available only for the purpose of covering purchase orders already
received by you;
(b) you shall not withhold placing customers orders for Fund shares so as to
profit yourself as a result of such withholding, e.g., by virtue of a change
in the net asset value from that used in determining the offering price to
your customers;
(c) we shall not accept a conditional order for Fund shares on any basis
other than a definite specified price;
(d) if shares of a SC Fund are repurchased by the issuing Fund or by us for
the account of such Fund or are tendered for redemption within seven business
days after confirmation by us of the original purchase order for such shares,
(i) you shall forthwith refund to us the full initial agency fee allowed to
you on the original sale and (ii) we shall forthwith pay to such Fund our
share of the sales charge on the original sale by us and shall also pay such
Fund the refund received under clause (i) when we receive it. You shall be
notified by us of such repurchase or redemption within ten days of the date
on which the certificate or, in the case of uncertificated shares, a properly
executed stock power together with appropriate supporting papers is delivered
to us or to such Fund (delivery to the Funds transfer agent is delivery to
the Fund);
(e) if shares of a CDSC Fund other than Eaton Vance Prime Rate Reserves are
repurchased by the issuing Fund or by us for the account of such Fund or are
tendered for redemption within seven business days after confirmation by us
of the original purchase order for such shares, (i) you shall forthwith
refund to us the full initial agency fee paid to you on the original sale and
(ii) we shall forthwith pay to such Fund any sales commission paid by the
Fund to us on the original sale by us. You shall be notified by us of such
repurchase or redemption within ten days of the date on which the certificate
or, in the case of uncertificated shares, a properly executed stock power
together with appropriate supporting papers, is delivered to us or to such
Fund (delivery to the Funds transfer agent is delivery to the Fund);
(f) neither we nor you shall, as principal, purchase Fund shares from a
record holder at a price lower than the bid price next quoted by or for the
issuing Fund;
(g) you agree that you will not make a secondary market in the shares of
Eaton Vance Prime Rate Reserves and that you will not purchase or hold shares
of Eaton Vance Prime Rate Reserves for purposes of resale to your customers;
and
(h) nothing in this agreement shall prevent you from selling Fund shares for
the account of a record owner to us or the issuing Fund and charging the
investor a reasonable charge for handling the transaction, provided you
disclose to such record owner that direct redemption of the shares can be
accomplished by the record owner without incurring such charge.
6. Under this agreement you are not employed by us or by the Funds as broker,
agent, employee or representative, nor are you authorized to make any
representations on our behalf. No person is authorized to make any
representations concerning Fund shares except those contained in the
then-current prospectus and statement of additional information and in such
printed information subsequently issued to you by us or by the Funds as
supplemental to such prospectus and statement of additional information. In
making Fund shares available to your customers hereunder, you shall rely
solely on the representations contained in the appropriate prospectus and
statement of additional information and in the supplemental information
mentioned in the preceding sentence. We or the Fund shall bear the expense of
qualifying Fund shares under the securities laws of the various states, and
any printed information which we shall furnish you (other than the Funds
prospectuses and statements of additional information and periodic reports
and printed information subsequently issued by the Fund as supplemental to
such prospectuses and statements of additional information) is our sole
responsibility; you agree that the Funds shall have no liability or
responsibility to you in these respects.
7. Because only you will have a direct relationship with your customers, you
will be responsible for insuring compliance with all laws and regulations
including those of the regulatory authorities directly applicable to you and
any other federal or state regulatory body having jurisdiction over you or
your customers to the extent applicable to securities purchases hereunder for
the account of your customers. You shall be obligated to deliver the
then-current Fund prospectus to your customer in accordance with the
applicable federal and state securities laws; and you agree that either you
or a clearing broker through which you clear transactions for your customer
will comply with the recordkeeping requirements of Section 17(a) of the
Securities Exchange Act of 1934 and any rules or regulations thereunder.
8. We reserve the right in our discretion, without notice, to suspend sales or
to withdraw the offering of Fund shares, in whole or in part, or to make a
limited offering of Fund shares. Either of us may cancel this agreement upon
written notice to the other. Upon written notice to you, we may change or
amend any provision of this agreement or restate this agreement in its
entirety.
9. As used herein, the following terms shall have the meaning hereinafter set
forth (unless a different meaning is plainly required by the context):
(a) Eaton Vance Group of Funds shall mean the investment companies the shares
of which from time to time shall be made available by us hereunder and which
are designated by us as such from time to time by notice to you.
(b) Fund shall mean any one of the Eaton Vance Group of Funds.
10. All communications to us should be sent to the above address. Any notice to
you shall be duly given if mailed or telegraphed to you at the address
specified by you below.
This agreement shall become binding upon receipt by us in Boston of a
counterpart hereof duly accepted and signed by you. This agreement shall be
construed in accordance with the laws of Massachusetts.
EATON VANCE DISTRIBUTORS, INC.
/s/ W.P. Whitaker
DATED:------------------------------ BY:----------------------------------
President
ACCEPTED
FIRM: ------------------------------------------------------------------------
BY: --------------------------------------------------------------------------
Authorized Representative
ADDRESS: ---------------------------------------------------------------------
<PAGE>
[LOGO] EATON VANCE DISTRIBUTORS, INC.
EXHIBIT TO BANK SERVICE AGREEMENT
Name:
The above named "bank holding company" as such term in defined in the Bank
Holding Company Act represents that it is authorized to execute this Agreement
on behalf of the "bank(s)" listed below:
BANK ADDRESS
1. ---------------------------------- ----------------------------------
2. ---------------------------------- ----------------------------------
3. ---------------------------------- ----------------------------------
4. ---------------------------------- ----------------------------------
5. ---------------------------------- ----------------------------------
6. ---------------------------------- ----------------------------------
7. ---------------------------------- ----------------------------------
8. ---------------------------------- ----------------------------------
9. ---------------------------------- ----------------------------------
10. ---------------------------------- ----------------------------------
Restated 2/92
Exhibit 99.6(c)
[LOGO] Eaton Vance Distributors, Inc.
SCHEDULE OF DEALER SALES COMMISSIONS, DISCOUNTS
& DISTRIBUTION PLAN PAYMENTS
SALES ANNUAL
MARATHON FAMILY OF FUNDS COMMISSION SERVICE FEE
(Back-end Pricing) (% OF NAV) (PAID QUARTERLY)#
I. CDSC Declining Over 6 Yrs.
EV Marathon Emerging Markets Fund 4% .25%
Eaton Vance Equity-Income Trust 4% .25%
EV Marathon Government Obligations Fund 4% .25%
EV Marathon Greater China Growth Fund 4% .25%
EV Marathon Greater India Fund 4% .25%
EV Marathon High Income Fund 4% .25%
EV Marathon Investors Fund 4% .25%
Eaton Vance Liquid Assets Trust 4% .25%
EV Marathon Gold & Natural Resources Fund 4% .25%
EV Marathon Total Return Fund 4% .25%
EV Marathon National Municipals Fund 4% .25%
EV Marathon Alabama Tax Free Fund 4% .20%
EV Marathon Arizona Tax Free Fund 4% .20%
EV Marathon Arkansas Tax Free Fund 4% .20%
EV Marathon California Municipals Fund 4% .25%
EV Marathon Colorado Tax Free Fund 4% .20%
EV Marathon Connecticut Tax Free Fund 4% .20%
EV Marathon Florida Tax Free Fund 4% .20%
EV Marathon Florida Insured Tax Free Fund 4% .20%
EV Marathon Georgia Tax Free Fund 4% .20%
EV Marathon Growth Fund 4% .25%
EV Marathon Hawaii Tax Free Fund 4% .20%
EV Marathon Kansas Tax Free Fund 4% .20%
EV Marathon Kentucky Tax Free Fund 4% .20%
EV Marathon Louisiana Tax Free Fund 4% .20%
EV Marathon Maryland Tax Free Fund 4% .20%
EV Marathon Massachusetts Tax Free Fund 4% .20%
EV Marathon Michigan Tax Free Fund 4% .20%
EV Marathon Minnesota Tax Free Fund 4% .20%
EV Marathon Mississippi Tax Free Fund 4% .20%
EV Marathon Missouri Tax Free Fund 4% .20%
EV Marathon New Jersey Tax Free Fund 4% .20%
EV Marathon New York Tax Free Fund 4% .20%
EV Marathon North Carolina Tax Free Fund 4% .20%
EV Marathon Ohio Tax Free Fund 4% .20%
EV Marathon Oregon Tax Free Fund 4% .20%
EV Marathon Pennsylvania Tax Free Fund 4% .20%
EV Marathon Rhode Island Tax Free Fund 4% .20%
EV Marathon South Carolina Tax Free Fund 4% .20%
EV Marathon Special Equities Fund 4% .25%
EV Marathon Stock Fund 4% .25%
EV Marathon Tennessee Tax Free Fund 4% .20%
EV Marathon Texas Tax Free Fund 4% .20%
EV Marathon Virginia Tax Free Fund 4% .20%
EV Marathon West Virginia Tax Free Fund 4% .20%
II. CDSC Declining Over 4 Yrs.
EV Marathon Strategic Income Fund 3.5% .25%
EV Marathon National Ltd. Mat. Tax Free Fund 2.5% .15%
EV Marathon Arizona Ltd. Mat. Tax Free Fund 2.5% .15%
EV Marathon California Ltd. Mat. Tax Free Fund 2.5% .15%
EV Marathon Connecticut Ltd. Mat. Tax Free Fund 2.5% .15%
EV Marathon Florida Ltd. Mat. Tax Free Fund 2.5% .15%
EV Marathon Massachusetts Ltd. Mat. Tax Free Fund 2.5% .15%
EV Marathon Michigan Ltd. Mat. Tax Free Fund 2.5% .15%
EV Marathon New Jersey Ltd. Mat. Tax Free Fund 2.5% .15%
EV Marathon New York Ltd. Mat. Tax Free Fund 2.5% .15%
EV Marathon North Carolina Ltd. Mat. Tax Free Fund 2.5% .15%
EV Marathon Ohio Ltd. Mat. Tax Free Fund 2.5% .15%
EV Marathon Pennsylvania Ltd. Mat. Tax Free Fund 2.5% .15%
EV Marathon Virginia Ltd. Mat. Tax Free Fund 2.5% .15%
ANNUAL
MARATHON FAMILY OF FUNDS SERVICE FEE
(Back-end Pricing) (PAID QUARTERLY)#
II. CDSC Declining Over 4 Yrs. (cont.)
Eaton Vance Prime Rate Reserves
(Sales commission of 3%)
ANNUAL SERVICE FEE SCHEDULE:
Year 1 0 bp
Year 2 10 bp
Year 3 15 bp
Year 4 20 bp
Year 5 25 bp
Year 6 30 bp
CLASSIC FAMILY OF FUNDS
(Level Pricing)
PAYMENT AT ANNUAL
MARATHON FAMILY OF FUNDS TIME OF SALE* COMPENSATION*
(Back-end Pricing) (% OF NAV) (PAID MONTHLY)#
III. 1% CDSC for First 12 Months
EV Classic Government Obligations Fund 1% 100bp
EV Classic Greater China Growth Fund 1% 100bp
EV Classic Investors Fund 1% 100bp
EV Classic Total Return Fund 1% 100bp
EV Classic National Municipals Fund 1% 100bp
EV Classic National Limited Maturity Tax Free Fund 1% 90bp
EV Classic Alabama Tax Free Fund 1% 95bp
EV Classic Arizona Tax Free Fund 1% 95bp
EV Classic Arkansas Tax Free Fund 1% 95bp
EV Classic California Municipals Fund 1% 100bp
EV Classic California Ltd. Mat. Tax Free Fund 1% 90bp
EV Classic Colorado Tax Free Fund 1% 95bp
EV Classic Connecticut Tax Free Fund 1% 95bp
EV Classic Connecticut Ltd. Mat. Tax Free Fund 1% 90bp
EV Classic Florida Tax Free Fund 1% 95bp
EV Classic Florida Ltd. Mat. Tax Free Fund 1% 90bp
EV Classic Florida Insured Tax Free Fund 1% 95bp
EV Classic Georgia Tax Free Fund 1% 95bp
EV Classic Growth Fund 1% 100bp
EV Classic High Income Fund 1% 100bp
EV Classic Hawaii Tax Free Fund 1% 95bp
EV Classic Kansas Tax Free Fund 1% 95bp
EV Classic Kentucky Tax Free Fund 1% 95bp
EV Classic Louisiana Tax Free Fund 1% 95bp
EV Classic Maryland Tax Free Fund 1% 95bp
EV Classic Massachusetts Tax Free Fund 1% 95bp
EV Classic Massachusetts Ltd. Mat. Tax Free Fund 1% 90bp
EV Classic Michigan Tax Free Fund 1% 95bp
EV Classic Michigan Ltd. Mat. Tax Free Fund 1% 90bp
EV Classic Minnesota Tax Free Fund 1% 95bp
EV Classic Mississippi Tax Free Fund 1% 95bp
EV Classic Missouri Tax Free Fund 1% 95bp
EV Classic New Jersey Tax Free Fund 1% 95bp
EV Classic New Jersey Ltd. Mat. Tax Free Fund 1% 90bp
EV Classic New York Tax Free Fund 1% 95bp
EV Classic New York Ltd. Mat. Tax Free Fund 1% 90bp
EV Classic North Carolina Tax Free Fund 1% 95bp
EV Classic Ohio Tax Free Fund 1% 95bp
EV Classic Ohio Ltd. Mat. Tax Free Fund 1% 90bp
EV Classic Oregon Tax Free Fund 1% 95bp
EV Classic Pennsylvania Tax Free Fund 1% 95bp
EV Classic Pennsylvania Ltd. Mat. Tax Free Fund 1% 90bp
EV Classic Rhode Island Tax Free Fund 1% 95bp
EV Classic Senior-Floating Rate Fund 1% 75bp
EV Classic Strategic Income Fund 1% 100bp
EV Classic South Carolina Tax Free Fund 1% 95bp
EV Classic Special Equities Fund 1% 100bp
EV Classic Stock Fund 1% 100bp
EV Classic Tennessee Tax Free Fund 1% 95bp
EV Classic Texas Tax Free Fund 1% 95bp
EV Classic Virginia Tax Free Fund 1% 95bp
EV Classic West Virginia Tax Free Fund 1% 95bp
# 13-month hold
* See current prospectus which explains what portions of each payment constitute
a sales commission and a service fee.
TRADITIONAL FAMILY OF FUNDS
(Front-end Pricing)
TAXABLE FIXED-INCOME AND
LONG-TERM TAX FREE FUNDS
AMOUNT OF PURCHASE SALES CHARGE DEALER DISCOUNT
(TAX FREE FUNDS) (% OF OFFERING PRICE)
Less than $ 50,000 3.75% 4.00%
$ 50,000 - 100,000 2.75 3.00
$ 100,000 - 250,000 2.25 2.50
$ 250,000 - 500,000 1.75 2.00
$ 500,000 - 1,000,000 1.25 1.50
$1,000,000 and over 0.00 0.25
SERVICE FEE
(PAID QUARTERLY)#
EV Traditional Government Obligations Fund .25%
Eaton Vance Income Fund of Boston .25%
Eaton Vance Municipal Bond Fund L.P. None
EV Traditional National Municipals Fund .25%
EV Traditional California Municipals Fund .25%
EV Traditional Connecticut Tax Free Fund .20%
EV Traditional Florida Tax Free Fund .20%
EV Traditional Florida Insured Tax Free Fund .20%
EV Traditional New Jersey Tax Free Fund .20%
EV Traditional New York Tax Free Fund .20%
EV Traditional Pennsylvania Tax Free Fund .20%
LIMITED MATURITY TAX FREE FUNDS
AMOUNT OF PURCHASE SALES CHARGE DEALER DISCOUNT
(TAX FREE FUNDS) (% OF OFFERING PRICE)
Less than $ 50,000 2.50% 2.75%
$ 50,000 - 100,000 2.25 2.50
$ 100,000 - 250,000 1.75 2.00
$ 250,000 - 500,000 1.25 1.50
$ 500,000 - 1,000,000 0.75 1.00
$1,000,000 and over 0.00 0.25
Service Fee
(Paid Quarterly)#
EV Traditional National Limited Maturity Tax Free Fund .15%
EV Traditional Florida Limited Maturity Tax Free Fund .15%
EV Traditional New York Limited Maturity Tax Free Fund .15%
EQUITY FUNDS
AMOUNT OF PURCHASE SALES CHARGE DEALER DISCOUNT
(% OF OFFERING PRICE)
Up to $99,999 4.75% 4.00%
$ 100,000 - 249,999 3.75 3.15
$ 250,000 - 499,999 2.75 2.30
$ 500,000 - 999,999 2.00 1.70
$1,000,000 and over 0.00* 0.00**
Service Fee
(Paid Quarterly)#
EV Traditional Emerging Markets Fund .25%
EV Traditional Greater China Growth Fund .25%
EV Traditional Greater India Fund .25%
EV Traditional Growth Fund .25%
EV Traditional Investors Fund .25%
EV Traditional Special Equities Fund .25%
EV Traditional Stock Fund .25%
EV Traditional Total Return Fund .25%
* No sales charge is payable at the time of purchase on investments of $1
million or more. A contingent deferred sales charge of 1% will be imposed on
such investments in the event of certain redemption transactions within 18
months of purchase. See the funds current prospectuses for further details.
** The Principal Underwriter may pay a commission to Authorized Dealers who
initiate and are responsible for purchases of $1 million or more as follows:
1.00% on sales up to $2 million, plus 0.8% on the next million, 0.2% on the
next $2 million, and 0.08% on the excess of $5 million.
+ The Principal Underwriter may pay Authorized Firms that initiate and are
responsible for purchases of $1 million or more a commission, that, coupled
with the applicable service fee, is at an annual rate of .25% of average
daily net assets paid quarterly.
# 13-month hold
Eaton Vance Short-Term Treasury Fund................. no initial sales charge
...............25% annual service fee, paid quarterly
NOTES
1. ALL MARATHON FUNDS (EXCLUDING PRIME RATE RESERVES, EV MARATHON STRATEGIC
INCOME FUND AND THE LIMITED MATURITY TAX FREE FUNDS)
The customer may be subject to a contingent deferred sales charge payable to
the fund or the Principal Underwriter at declining rates in the event such
customer redeems within the first six years of ownership, as described in
detail in the prospectus of the fund.
2. EV MARATHON STRATEGIC INCOME FUND AND THE LIMITED MATURITY TAX FREE FUNDS
The customer may be subject to a contingent deferred sales charge payable to
the fund or the Principal Underwriter at declining rates in the event such
customer redeems within the first four years of ownership, as described in
detail in the prospectus of the fund.
3. ALL CLASSIC FUNDS (EXCEPT EV CLASSIC SENIOR FLOATING-RATE FUND)
The customer may be subject to a contingent deferred sales charge payable to
the fund or the Principal Underwriter of 1% in the event such customer
redeems within the first year of ownership, as described in detail in the
prospectus of the fund.
4. PRIME RATE RESERVES - EARLY WITHDRAWAL CHARGE
The customer may be subject to an early withdrawal charge payable to the
Principal Underwriter at declining rates in the event shares held for less
than four years are accepted by the fund for repurchase pursuant to a tender
offer, as described in detail in the prospectus of the fund.
5. EV CLASSIC SENIOR FLOATING-RATE FUND - EARLY WITHDRAWAL CHARGE
The customer may be subject to an early withdrawal charge payable to the
Principal Underwriter of 1% in the event shares held for less than one year
are accepted by the fund for repurchase pursuant to a tender offer, as
described in detail in the prospectus of the fund.
COMPENSATION
A. Classic Funds Dealers receive (a) a monthly sales commission equal to
1/12 of .75% of the value of shares sold to your customers and (b) a
monthly service fee payment equal to 1/12 of .15% to .25% of the
value of shares sold to your customers, each based on the annual n
asset value of fund shares owned and outstanding for at least one
year. Combined payments are equal to 75-100 basis points annualized.
Specifics of these payments can be found in the funds prospectuses,
in the section discussing Distribution Plan. Please see the schedule
for a complete fund-by-fund listing.
SERVICE FEE
B. Marathon Funds Dealers receive a service fee payment quarterly in an
amount equal to .15% to .25% on an annual basis of the net asset
value of fund shares owned for at least one year by your customers
for each quarter, such payment to begin the first quarter after the
quarter in which the first anniversary of the purchase occurs.
Specifics of these payments can be found in the funds prospectuses,
in the section discussing Distribution Plan. Please see the schedule
for a listing of fund participation.
C. Traditional Funds Dealers receive a service fee payment quarterly in
an amount equal to .15% to .25% on an annual basis of the net asset
value of fund shares owned for at least one year by your customers
for each quarter, such payment to begin the first quarter after the
quarter in which the first anniversary of the purchase occurs
(payments are not made in the case of funds where it is so
indicated). Specifics of these payments can be found in the funds
prospectuses, in the section discussing Service Plan. Please see the
schedule for listing of fund participation.
DISTRIBUTION REINVESTMENTS
All distributions are reinvested at net asset value.
DSCS
<PAGE>
EXHIBIT 99.8
24 Federal Street
Boston, MA 02110
(617) 482-8260
November 7, 1994
Eaton Vance Growth Trust hereby adopts and agrees to become a party to the
attached Master Custodian Agreement between the Eaton Vance Group of Funds and
Investors Bank & Trust Company on behalf of the series of the Trust listed on
the attached Schedule A.
EATON VANCE GROWTH TRUST
BY: /s/ James L. O'Conner
--------------------------------
Treasurer
Accepted and agreed to:
INVESTORS BANK & TRUST COMPANY
BY: /s/ J.M. Keenan
----------------------------------
Title Vice President
<PAGE>
Schedule A
August 1, 1995
EATON VANCE GROWTH TRUST
EV Traditional Growth Fund
EV Classic Growth Fund
EV Marathon Growth Fund
EV Tradtional Greater China Growth Fund
EV Marathon Greater China Growth Fund
EV Classic Greater China Growth Fund
EV Marathon Gold + Natural Resources Fund
<PAGE>
MASTER CUSTODIAN AGREEMENT
between
EATON VANCE GROUP OF FUNDS
and
INVESTORS BANK & TRUST COMPANY
<PAGE>
TABLE OF CONTENTS
1. Definitions ..................................................... 1-3
2. Employment of Custodian and Property to be held by it ........... 3-4
3. Duties of the Custodian with Respect to
Property of the Fund ............................................ 4
A. Safekeeping and Holding of Property ......................... 4
B. Delivery of Securities ...................................... 4-7
C. Registration of Securities .................................. 7
D. Bank Accounts ............................................... 8
E. Payments for Shares of the Fund ............................. 8
F. Investment and Availability of Federal Funds ................ 8
G. Collections ................................................. 8-9
H. Payment of Fund Moneys ...................................... 9-11
I. Liability for Payment in Advance of
Receipt of Securities Purchased ............................. 11
J. Payments for Repurchases of Redemptions
of Shares of the Fund ....................................... 11-12
K. Appointment of Agents by the Custodian ...................... 12
L. Deposit of Fund Portfolio Securities in Securities Systems .. 12-14
M. Deposit of Fund Commercial Paper in an Approved Book-Entry
System for Commercial Paper ................................. 14-16
N. Segregated Account .......................................... 17
O. Ownership Certificates for Tax Purposes ..................... 17
P. Proxies ..................................................... 17
Q. Communications Relating to Fund Portfolio Securities ........ 18
R. Exercise of Rights; Tender Offers .......................... 18
<PAGE>
S. Depository Receipts ......................................... 19
T. Interest Bearing Call or Time Deposits ...................... 19
U. Options, Futures Contracts and Foreign Currency Transactions 19-21
V. Actions Permitted Without Express Authority ................. 21
4. Duties of Bank with Respect to Books of Account and
Calculations of Net Asset Value ................................. 22
5. Records and Miscellaneous Duties ................................ 22
6. Opinion of Fund's Independent Public Accountants ................ 23
7. Compensation and Expenses of Bank ............................... 23
8. Responsibility of Bank .......................................... 23-24
9. Persons Having Access to Assets of the Fund ..................... 24
10. Effective Period, Termination and Amendment; Successor Custodian. 25
11. Interpretive and Additional Provisions .......................... 26
12. Notices ......................................................... 26
13. Massachusetts Law to Apply ...................................... 26
14. Adoption of the Agreement by the Fund ........................... 26
-ii-
<PAGE>
MASTER CUSTODIAN AGREEMENT
This Agreement is made between each investment company advised by Eaton
Vance Management which has adopted this Agreement in the manner provided herein
and Investors Bank & Trust Company (hereinafter called "Bank", "Custodian" and
"Agent"), a trust company established under the laws of Massachusetts with a
principal place of business in Boston, Massachusetts.
Whereas, each such investment company is registered under the
Investment Company Act of 1940 and has appointed the Bank to act as Custodian of
its property and to perform certain duties as its Agent, as more fully
hereinafter set forth; and
Whereas, the Bank is willing and able to act as each such investment
company's Custodian and Agent, subject to and in accordance with the provisions
hereof;
Now, therefore, in consideration of the premises and of the mutual
covenants and agreements herein contained, each such investment company and the
Bank agree as follows:
1. Definitions
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
(a) "Fund" shall mean the investment company which has adopted this
Agreement. If the Fund is a Massachusetts business trust, it may in the future
establish and designate other separate and distinct series of shares, each of
which may be called a "portfolio"; in such case, the term "Fund" shall also
refer to each such separate series or portfolio.
(b) "Board" shall mean the board of directors/trustees/managing
general partners/director general partners of the Fund, as the case may be.
(c) "The Depository Trust Company", a clearing agency registered with
the Securities and Exchange Commission under Section 17A of the Securities
Exchange Act of 1934 which acts as a securities depository and which has been
specifically approved as a securities depository for the Fund by the Board.
(d) "Participants Trust Company", a clearing agency registered with
the Securities and Exchange Commission under Section 17A of the Securities
Exchange Act of 1934 which acts as a securities depository and which has been
specifically approved as a securities depository for the Fund by the Board.
(e) "Approved Clearing Agency" shall mean any other domestic clearing
agency registered with the Securities and Exchange Commission under Section 17A
of the Securities Exchange Act of 1934 which acts as a securities depository but
only if the Custodian has received a certified copy of a vote of the Board
approving such clearing agency as a securities depository for the Fund.
(f) "Federal Book-Entry System" shall mean the book-entry system
referred to in Rule 17f-4(b) under the Investment Company Act of 1940 for United
States and federal agency securities (i.e., as provided in Subpart O of Treasury
Circular No. 300, 31 CFR 306, Subpart B of 31 CFR Part 350, and the book-entry
regulations of federal agencies substantially in the form of Subpart O).
(g) "Approved Foreign Securities Depository" shall mean a foreign
securities depository or clearing agency referred to in rule 17f-4 under the
Investment Company Act of 1940 for foreign securities but only if the Custodian
has received a certified copy of a vote of the Board approving such depository
or clearing agency as a foreign securities depository for the Fund.
(h) "Approved Book-Entry System for Commercial Paper" shall mean a
system maintained by the Custodian or by a subcustodian employed pursuant to
Section 2 hereof for the holding of commercial paper in book-entry form but only
if the Custodian has received a certified copy of a vote of the Board approving
the participation by the Fund in such system.
(i) The Custodian shall be deemed to have received "proper
instructions" in respect of any of the matters referred to in this Agreement
upon receipt of written or facsimile instructions signed by such one or more
person or persons as the Board shall have from time to time authorized to give
the particular class of instructions in question. Electronic instructions for
the purchase and sale of securities which are transmitted by Eaton Vance
Management to the Custodian through the Eaton Vance equity trading system and
the Eaton Vance fixed income trading system shall be deemed to be proper
instructions; the Fund shall cause all such instructions to be confirmed in
writing. Different persons may be authorized to give instructions for different
purposes. A certified copy of a vote of the Board may be received and accepted
by the Custodian as conclusive evidence of the authority of any such person to
act and may be considered as in full force and effect until receipt of written
notice to the contrary. Such instructions may be general or specific in terms
and, where appropriate, may be standing instructions. Unless the vote delegating
authority to any person or persons to give a particular class of instructions
specifically requires that the approval of any person, persons or committee
shall first have been obtained before the Custodian may act on instructions of
that class, the Custodian shall be under no obligation to question the right of
the person or persons giving such instructions in so doing. Oral instructions
will be considered proper instructions if the Custodian reasonably believes them
to have been given by a person authorized to give such instructions with respect
to the transaction involved. The Fund shall cause all oral instructions to be
confirmed in writing. The Fund authorizes the Custodian to tape record any and
all telephonic or other oral instructions given to the Custodian. Upon receipt
of a certificate signed by two officers of the Fund as to the authorization by
the President and the Treasurer of the Fund accompanied by a detailed
description of the communication procedures approved by the President and the
Treasurer of the Fund, "proper instructions" may also include communications
effected directly between electromechanical or electronic devices provided that
the President and Treasurer of the Fund and the Custodian are satisfied that
such procedures afford adequate safeguards for the Fund's assets. In performing
its duties generally, and more particularly in connection with the purchase,
sale and exchange of securities made by or for the Fund, the Custodian may take
cognizance of the provisions of the governing documents and registration
statement of the Fund as the same may from time to time be in effect (and votes,
resolutions or proceedings of the shareholders or the Board), but, nevertheless,
except as otherwise expressly provided herein, the Custodian may assume unless
and until notified in writing to the contrary that so-called proper instructions
received by it are not in conflict with or in any way contrary to any provisions
of such governing documents and registration statement, or votes, resolutions or
proceedings of the shareholders or the Board.
2. Employment of Custodian and Property to be Held by It
The Fund hereby appoints and employs the Bank as its Custodian and
Agent in accordance with and subject to the provisions hereof, and the Bank
hereby accepts such appointment and employment. The Fund agrees to deliver to
the Custodian all securities, participation interests, cash and other assets
owned by it, and all payments of income, payments of principal and capital
distributions and adjustments received by it with respect to all securities and
participation interests owned by the Fund from time to time, and the cash
consideration received by it for such new or treasury shares ("Shares") of the
Fund as may be issued or sold from time to time. The Custodian shall not be
responsible for any property of the Fund held by the Fund and not delivered by
the Fund to the Custodian. The Fund will also deliver to the Bank from time to
time copies of its currently effective charter (or declaration of trust or
partnership agreement, as the case may be), by-laws, prospectus, statement of
additional information and distribution agreement with its principal
underwriter, together with such resolutions, votes and other proceedings of the
Fund as may be necessary for or convenient to the Bank in the performance of its
duties hereunder.
The Custodian may from time to time employ one or more subcustodians to
perform such acts and services upon such terms and conditions as shall be
approved from time to time by the Board of Directors. Any such subcustodian so
employed by the Custodian shall be deemed to be the agent of the Custodian, and
the Custodian shall remain primarily responsible for the securities,
participation interests, moneys and other property of the Fund held by such
subcustodian. Any foreign subcustodian shall be a bank or trust company which is
an eligible foreign custodian within the meaning of Rule 17f-5 under the
Investment Company Act of 1940, and the foreign custody arrangements shall be
approved by the Board of Directors and shall be in accordance with and subject
to the provisions of said Rule. For the purposes of this Agreement, any property
of the Fund held by any such subcustodian (domestic or foreign) shall be deemed
to be held by the Custodian under the terms of this Agreement.
3. Duties of the Custodian with Respect to Property of the Fund
A. Safekeeping and Holding of Property The Custodian shall keep safely
all property of the Fund and on behalf of the Fund shall from time
to time receive delivery of Fund property for safekeeping. The
Custodian shall hold, earmark and segregate on its books and
records for the account of the Fund all property of the Fund,
including all securities, participation interests and other assets
of the Fund (1) physically held by the Custodian, (2) held by any
subcustodian referred to in Section 2 hereof or by any agent
referred to in Paragraph K hereof, (3) held by or maintained in The
Depository Trust Company or in Participants Trust Company or in an
Approved Clearing Agency or in the Federal Book-Entry System or in
an Approved Foreign Securities Depository, each of which from time
to time is referred to herein as a "Securities System", and (4)
held by the Custodian or by any subcustodian referred to in Section
2 hereof and maintained in any Approved Book-Entry System for
Commercial Paper.
B. Delivery of Securities The Custodian shall release and deliver
securities or participation interests owned by the Fund held (or
deemed to be held) by the Custodian or maintained in a Securities
System account or in an Approved Book-Entry System for Commercial
Paper account only upon receipt of proper instructions, which may
be continuing instructions when deemed appropriate by the parties,
and only in the following cases:
1) Upon sale of such securities or participation interests
for the account of the Fund, but only against receipt of
payment therefor; if delivery is made in Boston or New
York City, payment therefor shall be made in accordance
with generally accepted clearing house procedures or by
use of Federal Reserve Wire System procedures; if
delivery is made elsewhere payment therefor shall be in
accordance with the then current "street delivery"
custom or in accordance with such procedures agreed to
in writing from time to time by the parties hereto; if
the sale is effected through a Securities System,
delivery and payment therefor shall be made in
accordance with the provisions of Paragraph L hereof; if
the sale of commercial paper is to be effected through
an Approved Book-Entry System for Commercial Paper,
delivery and payment therefor shall be made in
accordance with the provisions of Paragraph M hereof; if
the securities are to be sold outside the United States,
delivery may be made in accordance with procedures
agreed to in writing from time to time by the parties
hereto; for the purposes of this subparagraph, the term
"sale" shall include the disposition of a portfolio
security (i) upon the exercise of an option written by
the Fund and (ii) upon the failure by the Fund to make a
successful bid with respect to a portfolio security, the
continued holding of which is contingent upon the making
of such a bid;
2) Upon the receipt of payment in connection with any
repurchase agreement or reverse repurchase agreement
relating to such securities and entered into by the
Fund;
3) To the depository agent in connection with tender or
other similar offers for portfolio securities of the
Fund;
4) To the issuer thereof or its agent when such securities
or participation interests are called, redeemed, retired
or otherwise become payable; provided that, in any such
case, the cash or other consideration is to be delivered
to the Custodian or any subcustodian employed pursuant
to Section 2 hereof;
5) To the issuer thereof, or its agent, for transfer into
the name of the Fund or into the name of any nominee of
the Custodian or into the name or nominee name of any
agent appointed pursuant to Paragraph K hereof or into
the name or nominee name of any subcustodian employed
pursuant to Section 2 hereof; or for exchange for a
different number of bonds, certificates or other
evidence representing the same aggregate face amount or
number of units; provided that, in any such case, the
new securities or participation interests are to be
delivered to the Custodian or any subcustodian employed
pursuant to Section 2 hereof;
6) To the broker selling the same for examination in
accordance with the "street delivery" custom; provided
that the Custodian shall adopt such procedures as the
Fund from time to time shall approve to ensure their
prompt return to the Custodian by the broker in the
event the broker elects not to accept them;
7) For exchange or conversion pursuant to any plan of
merger, consolidation, recapitalization, reorganization
or readjustment of the securities of the Issuer of such
securities, or pursuant to provisions for conversion of
such securities, or pursuant to any deposit agreement;
provided that, in any such case, the new securities and
cash, if any, are to be delivered to the Custodian or
any subcustodian employed pursuant to Section 2 hereof;
8) In the case of warrants, rights or similar securities,
the surrender thereof in connection with the exercise of
such warrants, rights or similar securities, or the
surrender of interim receipts or temporary securities
for definitive securities; provided that, in any such
case, the new securities and cash, if any, are to be
delivered to the Custodian or any subcustodian employed
pursuant to Section 2 hereof;
9) For delivery in connection with any loans of securities
made by the Fund (such loans to be made pursuant to the
terms of the Fund's current registration statement), but
only against receipt of adequate collateral as agreed
upon from time to time by the Custodian and the Fund,
which may be in the form of cash or obligations issued
by the United States government, its agencies or
instrumentalities; except that in connection with any
securities loans for which collateral is to be credited
to the Custodian's account in the book-entry system
authorized by the U.S. Department of Treasury, the
Custodian will not be held liable or responsible for the
delivery of securities loaned by the Fund prior to the
receipt of such collateral;
10) For delivery as security in connection with any
borrowings by the Fund requiring a pledge or
hypothecation of assets by the Fund (if then permitted
under circumstances described in the current
registration statement of the Fund), provided, that the
securities shall be released only upon payment to the
Custodian of the monies borrowed, except that in cases
where additional collateral is required to secure a
borrowing already made, further securities may be
released for that purpose; upon receipt of proper
instructions, the Custodian may pay any such loan upon
redelivery to it of the securities pledged or
hypothecated therefor and upon surrender of the note or
notes evidencing the loan;
11) When required for delivery in connection with any
redemption or repurchase of Shares of the Fund in
accordance with the provisions of Paragraph J hereof;
12) For delivery in accordance with the provisions of any
agreement between the Custodian (or a subcustodian
employed pursuant to Section 2 hereof) and a
broker-dealer registered under the Securities Exchange
Act of 1934 and, if necessary, the Fund, relating to
compliance with the rules of The Options Clearing
Corporation or of any registered national securities
exchange, or of any similar organization or
organizations, regarding deposit or escrow or other
arrangements in connection with options transactions by
the Fund;
13) For delivery in accordance with the provisions of any
agreement among the Fund, the Custodian (or a
subcustodian employed pursuant to Section 2 hereof), and
a futures commissions merchant, relating to compliance
with the rules of the Commodity Futures Trading
Commission and/or of any contract market or commodities
exchange or similar organization, regarding futures
margin account deposits or payments in connection with
futures transactions by the Fund;
14) For any other proper corporate purpose, but only upon
receipt of, in addition to proper instructions, a
certified copy of a vote of the Board specifying the
securities to be delivered, setting forth the purpose
for which such delivery is to be made, declaring such
purpose to be proper corporate purpose, and naming the
person or persons to whom delivery of such securities
shall be made.
C. Registration of Securities Securities held by the Custodian (other
than bearer securities) for the account of the Fund shall be
registered in the name of the Fund or in the name of any nominee of
the Fund or of any nominee of the Custodian, or in the name or
nominee name of any agent appointed pursuant to Paragraph K hereof,
or in the name or nominee name of any subcustodian employed
pursuant to Section 2 hereof, or in the name or nominee name of The
Depository Trust Company or Participants Trust Company or Approved
Clearing Agency or Federal Book-Entry System or Approved Book-Entry
System for Commercial Paper; provided, that securities are held in
an account of the Custodian or of such agent or of such
subcustodian containing only assets of the Fund or only assets held
by the Custodian or such agent or such subcustodian as a custodian
or subcustodian or in a fiduciary capacity for customers. All
certificates for securities accepted by the Custodian or any such
agent or subcustodian on behalf of the Fund shall be in "street" or
other good delivery form or shall be returned to the selling broker
or dealer who shall be advised of the reason thereof.
D. Bank Accounts The Custodian shall open and maintain a separate bank
account or accounts in the name of the Fund, subject only to draft
or order by the Custodian acting in pursuant to the terms of this
Agreement, and shall hold in such account or accounts, subject to
the provisions hereof, all cash received by it from or for the
account of the Fund other than cash maintained by the Fund in a
bank account established and used in accordance with Rule 17f-3
under the Investment Company Act of 1940. Funds held by the
Custodian for the Fund may be deposited by it to its credit as
Custodian in the Banking Department of the Custodian or in such
other banks or trust companies as the Custodian may in its
discretion deem necessary or desirable; provided, however, that
every such bank or trust company shall be qualified to act as a
custodian under the Investment Company Act of 1940 and that each
such bank or trust company and the funds to be deposited with each
such bank or trust company shall be approved in writing by two
officers of the Fund. Such funds shall be deposited by the
Custodian in its capacity as Custodian and shall be subject to
withdrawal only by the Custodian in that capacity.
E. Payment for Shares of the Fund The Custodian shall make appropriate
arrangements with the Transfer Agent and the principal underwriter
of the Fund to enable the Custodian to make certain it promptly
receives the cash or other consideration due to the Fund for such
new or treasury Shares as may be issued or sold from time to time
by the Fund, in accordance with the governing documents and
offering prospectus and statement of additional information of the
Fund. The Custodian will provide prompt notification to the Fund of
any receipt by it of payments for Shares of the Fund.
F. Investment and Availability of Federal Funds Upon agreement between
the Fund and the Custodian, the Custodian shall, upon the receipt
of proper instructions, which may be continuing instructions when
deemed appropriate by the parties,
1) invest in such securities and instruments as may be set
forth in such instructions on the same day as received
all federal funds received after a time agreed upon
between the Custodian and the Fund; and
2) make federal funds available to the Fund as of specified
times agreed upon from time to time by the Fund and the
Custodian in the amount of checks received in payment
for Shares of the Fund which are deposited into the
Fund's account.
G. Collections The Custodian shall promptly collect all income and
other payments with respect to registered securities held hereunder
to which the Fund shall be entitled either by law or pursuant to
custom in the securities business, and shall promptly collect all
income and other payments with respect to bearer securities if, on
the date of payment by the issuer, such securities are held by the
Custodian or agent thereof and shall credit such income, as
collected, to the Fund's custodian account.
The Custodian shall do all things necessary and proper in
connection with such prompt collections and, without limiting the
generality of the foregoing, the Custodian shall
1) Present for payment all coupons and other income items
requiring presentations;
2) Present for payment all securities which may mature or
be called, redeemed, retired or otherwise become
payable;
3) Endorse and deposit for collection, in the name of the
Fund, checks, drafts or other negotiable instruments;
4) Credit income from securities maintained in a Securities
System or in an Approved Book-Entry System for
Commercial Paper at the time funds become available to
the Custodian; in the case of securities maintained in
The Depository Trust Company funds shall be deemed
available to the Fund not later than the opening of
business on the first business day after receipt of such
funds by the Custodian.
The Custodian shall notify the Fund as soon as reasonably
practicable whenever income due on any security is not promptly
collected. In any case in which the Custodian does not receive any
due and unpaid income after it has made demand for the same, it
shall immediately so notify the Fund in writing, enclosing copies
of any demand letter, any written response thereto, and memoranda
of all oral responses thereto and to telephonic demands, and await
instructions from the Fund; the Custodian shall in no case have any
liability for any nonpayment of such income provided the Custodian
meets the standard of care set forth in Section 8 hereof. The
Custodian shall not be obligated to take legal action for
collection unless and until reasonably indemnified to its
satisfaction.
The Custodian shall also receive and collect all stock dividends,
rights and other items of like nature, and deal with the same
pursuant to proper instructions relative thereto.
H. Payment of Fund Moneys Upon receipt of proper instructions, which
may be continuing instructions when deemed appropriate by the
parties, the Custodian shall pay out moneys of the Fund in the
following cases only:
1) Upon the purchase of securities, participation
interests, options, futures contracts, forward contracts
and options on futures contracts purchased for the
account of the Fund but only (a) against the receipt of
(i) such securities registered as provided in
Paragraph C hereof or in proper form for transfer or
(ii) detailed instructions signed by an officer of
the Fund regarding the participation interests to be
purchased or
(iii) written confirmation of the purchase by the
Fund of the options, futures contracts, forward
contracts or options on futures contracts
by the Custodian (or by a subcustodian employed pursuant
to Section 2 hereof or by a clearing corporation of a
national securities exchange of which the Custodian is a
member or by any bank, banking institution or trust
company doing business in the United States or abroad
which is qualified under the Investment Company Act of
1940 to act as a custodian and which has been designated
by the Custodian as its agent for this purpose or by the
agent specifically designated in such instructions as
representing the purchasers of a new issue of privately
placed securities); (b) in the case of a purchase
effected through a Securities System, upon receipt of
the securities by the Securities System in accordance
with the conditions set forth in Paragraph L hereof; (c)
in the case of a purchase of commercial paper effected
through an Approved Book-Entry System for Commercial
Paper, upon receipt of the paper by the Custodian or
subcustodian in accordance with the conditions set forth
in Paragraph M hereof; (d) in the case of repurchase
agreements entered into between the Fund and another
bank or a broker-dealer, against receipt by the
Custodian of the securities underlying the repurchase
agreement either in certificate form or through an entry
crediting the Custodian's segregated, non-proprietary
account at the Federal Reserve Bank of Boston with such
securities along with written evidence of the agreement
by the bank or broker-dealer to repurchase such
securities from the Fund; or (e) with respect to
securities purchased outside of the United States, in
accordance with written procedures agreed to from time
to time in writing by the parties hereto;
2) When required in connection with the conversion,
exchange or surrender of securities owned by the Fund as
set forth in Paragraph B hereof;
3) When required for the redemption or repurchase of Shares
of the Fund in accordance with the provisions of
Paragraph J hereof;
4) For the payment of any expense or liability incurred by
the Fund, including but not limited to the following
payments for the account of the Fund: advisory fees,
distribution plan payments, interest, taxes, management
compensation and expenses, accounting, transfer agent
and legal fees, and other operating expenses of the Fund
whether or not such expenses are to be in whole or part
capitalized or treated as deferred expenses;
5) For the payment of any dividends or other distributions
to holders of Shares declared or authorized by the
Board; and
6) For any other proper corporate purpose, but only upon
receipt of, in addition to proper instructions, a
certified copy of a vote of the Board, specifying the
amount of such payment, setting forth the purpose for
which such payment is to be made, declaring such purpose
to be a proper corporate purpose, and naming the person
or persons to whom such payment is to be made.
I. Liability for Payment in Advance of Receipt of Securities Purchased
In any and every case where payment for purchase of securities for
the account of the Fund is made by the Custodian in advance of
receipt of the securities purchased in the absence of specific
written instructions signed by two officers of the Fund to so pay
in advance, the Custodian shall be absolutely liable to the Fund
for such securities to the same extent as if the securities had
been received by the Custodian; except that in the case of a
repurchase agreement entered into by the Fund with a bank which is
a member of the Federal Reserve System, the Custodian may transfer
funds to the account of such bank prior to the receipt of (i) the
securities in certificate form subject to such repurchase agreement
or (ii) written evidence that the securities subject to such
repurchase agreement have been transferred by book-entry into a
segregated non-proprietary account of the Custodian maintained with
the Federal Reserve Bank of Boston or (iii) the safekeeping
receipt, provided that such securities have in fact been so
transfered by book-entry and the written repurchase agreement is
received by the Custodian in due course; and except that if the
securities are to be purchased outside the United States, payment
may be made in accordance with procedures agreed to in writing from
time to time by the parties hereto.
J. Payments for Repurchases or Redemptions of Shares of the Fund From
such funds as may be available for the purpose, but subject to any
applicable votes of the Board and the current redemption and
repurchase procedures of the Fund, the Custodian shall, upon
receipt of written instructions from the Fund or from the Fund's
transfer agent or from the principal underwriter, make funds and/or
portfolio securities available for payment to holders of Shares who
have caused their Shares to be redeemed or repurchased by the Fund
or for the Fund's account by its transfer agent or principal
underwriter.
The Custodian may maintain a special checking account upon which
special checks may be drawn by shareholders of the Fund holding
Shares for which certificates have not been issued. Such checking
account and such special checks shall be subject to such rules and
regulations as the Custodian and the Fund may from time to time
adopt. The Custodian or the Fund may suspend or terminate use of
such checking account or such special checks (either generally or
for one or more shareholders) at any time. The Custodian and the
Fund shall notify the other immediately of any such suspension or
termination.
K. Appointment of Agents by the Custodian The Custodian may at any
time or times in its discretion appoint (and may at any time
remove) any other bank or trust company (provided such bank or
trust company is itself qualified under the Investment Company Act
of 1940 to act as a custodian or is itself an eligible foreign
custodian within the meaning of Rule 17f-5 under said Act) as the
agent of the Custodian to carry out such of the duties and
functions of the Custodian described in this Section 3 as the
Custodian may from time to time direct; provided, however, that the
appointment of any such agent shall not relieve the Custodian of
any of its responsibilities or liabilities hereunder, and as
between the Fund and the Custodian the Custodian shall be fully
responsible for the acts and omissions of any such agent. For the
purposes of this Agreement, any property of the Fund held by any
such agent shall be deemed to be held by the Custodian hereunder.
L. Deposit of Fund Portfolio Securities in Securities Systems The
Custodian may deposit and/or maintain securities owned by the Fund
(1) in The Depository Trust Company;
(2) in Participants Trust Company;
(3) in any other Approved Clearing Agency;
(4) in the Federal Book-Entry System; or
(5) in an Approved Foreign Securities Depository
in each case only in accordance with applicable Federal Reserve
Board and Securities and Exchange Commission rules and regulations,
and at all times subject to the following provisions:
(a) The Custodian may (either directly or through one or more
subcustodians employed pursuant to Section 2 keep securities of the
Fund in a Securities System provided that such securities are
maintained in a non-proprietary account ("Account") of the
Custodian or such subcustodian in the Securities System which shall
not include any assets of the Custodian or such subcustodian or any
other person other than assets held by the Custodian or such
subcustodian as a fiduciary, custodian, or otherwise for its
customers.
(b) The records of the Custodian with respect to securities of
the Fund which are maintained in a Securities System shall identify
by book-entry those securities belonging to the Fund, and the
Custodian shall be fully and completely responsible for maintaining
a recordkeeping system capable of accurately and currently stating
the Fund's holdings maintained in each such Securities System.
(c) The Custodian shall pay for securities purchased in
book-entry form for the account of the Fund only upon (i) receipt
of notice or advice from the Securities System that such securities
have been transferred to the Account, and (ii) the making of any
entry on the records of the Custodian to reflect such payment and
transfer for the account of the Fund. The Custodian shall transfer
securities sold for the account of the Fund only upon (i) receipt
of notice or advice from the Securities System that payment for
such securities has been transferred to the Account, and (ii) the
making of an entry on the records of the Custodian to reflect such
transfer and payment for the account of the Fund. Copies of all
notices or advices from the Securities System of transfers of
securities for the account of the Fund shall identify the Fund, be
maintained for the Fund by the Custodian and be promptly provided
to the Fund at its request. The Custodian shall promptly send to
the Fund confirmation of each transfer to or from the account of
the Fund in the form of a written advice or notice of each such
transaction, and shall furnish to the Fund copies of daily
transaction sheets reflecting each day's transactions in the
Securities System for the account of the Fund on the next business
day.
(d) The Custodian shall promptly send to the Fund any report or
other communication received or obtained by the Custodian relating
to the Securities System's accounting system, system of internal
accounting controls or procedures for safeguarding securities
deposited in the Securities System; the Custodian shall promptly
send to the Fund any report or other communication relating to the
Custodian's internal accounting controls and procedures for
safeguarding securities deposited in any Securities System; and the
Custodian shall ensure that any agent appointed pursuant to
Paragraph K hereof or any subcustodian employed pursuant to Section
2 hereof shall promptly send to the Fund and to the Custodian any
report or other communication relating to such agent's or
subcustodian's internal accounting controls and procedures for
safeguarding securities deposited in any Securities System. The
Custodian's books and records relating to the Fund's participation
in each Securities System will at all times during regular business
hours be open to the inspection of the Fund's authorized officers,
employees or agents.
(e) The Custodian shall not act under this Paragraph L in the
absence of receipt of a certificate of an officer of the Fund that
the Board has approved the use of a particular Securities System;
the Custodian shall also obtain appropriate assurance from the
officers of the Fund that the Board has annually reviewed the
continued use by the Fund of each Securities System, and the Fund
shall promptly notify the Custodian if the use of a Securities
System is to be discontinued; at the request of the Fund, the
Custodian will terminate the use of any such Securities System as
promptly as practicable.
(f) Anything to the contrary in this Agreement notwithstanding,
the Custodian shall be liable to the Fund for any loss or damage to
the Fund resulting from use of the Securities System by reason of
any negligence, misfeasance or misconduct of the Custodian or any
of its agents or subcustodians or of any of its or their employees
or from any failure of the Custodian or any such agent or
subcustodian to enforce effectively such rights as it may have
against the Securities System or any other person; at the election
of the Fund, it shall be entitled to be subrogated to the rights of
the Custodian with respect to any claim against the Securities
System or any other person which the Custodian may have as a
consequence of any such loss or damage if and to the extent that
the Fund has not been made whole for any such loss or damage.
M. Deposit of Fund Commercial Paper in an Approved Book-Entry System
for Commercial Paper Upon receipt of proper instructions with
respect to each issue of direct issue commercial paper purchased by
the Fund, the Custodian may deposit and/or maintain direct issue
commercial paper owned by the Fund in any Approved Book-Entry
System for Commercial Paper, in each case only in accordance with
applicable Securities and Exchange Commission rules, regulations,
and no-action correspondence, and at all times subject to the
following provisions:
(a) The Custodian may (either directly or through one or more
subcustodians employed pursuant to Section 2) keep commercial paper
of the Fund in an Approved Book-Entry System for Commercial Paper,
provided that such paper is issued in book entry form by the
Custodian or subcustodian on behalf of an issuer with which the
Custodian or subcustodian has entered into a book-entry agreement
and provided further that such paper is maintained in a
non-proprietary account ("Account") of the Custodian or such
subcustodian in an Approved Book-Entry System for Commercial Paper
which shall not include any assets of the Custodian or such
subcustodian or any other person other than assets held by the
Custodian or such subcustodian as a fiduciary, custodian, or
otherwise for its customers.
(b) The records of the Custodian with respect to commercial
paper of the Fund which is maintained in an Approved Book-Entry
System for Commercial Paper shall identify by book-entry each
specific issue of commercial paper purchased by the Fund which is
included in the System and shall at all times during regular
business hours be open for inspection by authorized officers,
employees or agents of the Fund. The Custodian shall be fully and
completely responsible for maintaining a recordkeeping system
capable of accurately and currently stating the Fund's holdings of
commercial paper maintained in each such System.
(c) The Custodian shall pay for commercial paper purchased in
book-entry form for the account of the Fund only upon
contemporaneous (i) receipt of notice or advice from the issuer
that such paper has been issued, sold and transferred to the
Account, and (ii) the making of an entry on the records of the
Custodian to reflect such purchase, payment and transfer for the
account of the Fund. The Custodian shall transfer such commercial
paper which is sold or cancel such commercial paper which is
redeemed for the account of the Fund only upon contemporaneous (i)
receipt of notice or advice that payment for such paper has been
transferred to the Account, and (ii) the making of an entry on the
records of the Custodian to reflect such transfer or redemption and
payment for the account of the Fund. Copies of all notices, advices
and confirmations of transfers of commercial paper for the account
of the Fund shall identify the Fund, be maintained for the Fund by
the Custodian and be promptly provided to the Fund at its request.
The Custodian shall promptly send to the Fund confirmation of each
transfer to or from the account of the Fund in the form of a
written advice or notice of each such transaction, and shall
furnish to the Fund copies of daily transaction sheets reflecting
each day's transactions in the System for the account of the Fund
on the next business day.
(d) The Custodian shall promptly send to the Fund any report or
other communication received or obtained by the Custodian relating
to each System's accounting system, system of internal accounting
controls or procedures for safeguarding commercial paper deposited
in the System; the Custodian shall promptly send to the Fund any
report or other communication relating to the Custodian's internal
accounting controls and procedures for safeguarding commercial
paper deposited in any Approved Book-Entry System for Commercial
Paper; and the Custodian shall ensure that any agent appointed
pursuant to Paragraph K hereof or any subcustodian employed
pursuant to Section 2 hereof shall promptly send to the Fund and to
the Custodian any report or other communication relating to such
agent's or subcustodian's internal accounting controls and
procedures for safeguarding securities deposited in any Approved
Book-Entry System for Commercial Paper.
(e) The Custodian shall not act under this Paragraph M in the
absence of receipt of a certificate of an officer of the Fund that
the Board has approved the use of a particular Approved Book-Entry
System for Commercial Paper; the Custodian shall also obtain
appropriate assurance from the officers of the Fund that the Board
has annually reviewed the continued use by the Fund of each
Approved Book-Entry System for Commercial Paper, and the Fund shall
promptly notify the Custodian if the use of an Approved Book-Entry
System for Commercial Paper is to be discontinued; at the request
of the Fund, the Custodian will terminate the use of any such
System as promptly as practicable.
(f) The Custodian (or subcustodian, if the Approved Book-Entry
System for Commercial Paper is maintained by the subcustodian)
shall issue physical commercial paper or promissory notes whenever
requested to do so by the Fund or in the event of an electronic
system failure which impedes issuance, transfer or custody of
direct issue commercial paper by book-entry.
(g) Anything to the contrary in this Agreement notwithstanding,
the Custodian shall be liable to the Fund for any loss or damage to
the Fund resulting from use of any Approved Book-Entry System for
Commercial Paper by reason of any negligence, misfeasance or
misconduct of the Custodian or any of its agents or subcustodians
or of any of its or their employees or from any failure of the
Custodian or any such agent or subcustodian to enforce effectively
such rights as it may have against the System, the issuer of the
commercial paper or any other person; at the election of the Fund,
it shall be entitled to be subrogated to the rights of the
Custodian with respect to any claim against the System, the issuer
of the commercial paper or any other person which the Custodian may
have as a consequence of any such loss or damage if and to the
extent that the Fund has not been made whole for any such loss or
damage.
N. Segregated Account The Custodian shall upon receipt of proper
instructions establish and maintain a segregated account or
accounts for and on behalf of the Fund, into which account or
accounts may be transferred cash and/or securities, including
securities maintained in an account by the Custodian pursuant to
Paragraph L hereof, (i) in accordance with the provisions of any
agreement among the Fund, the Custodian and any registered
broker-dealer (or any futures commission merchant), relating to
compliance with the rules of the Options Clearing Corporation and
of any registered national securities exchange (or of the Commodity
Futures Trading Commission or of any contract market or commodities
exchange), or of any similar organization or organizations,
regarding escrow or deposit or other arrangements in connection
with transactions by the Fund, (ii) for purposes of segregating
cash or U.S. Government securities in connection with options
purchased, sold or written by the Fund or futures contracts or
options thereon purchased or sold by the Fund, (iii) for the
purposes of compliance by the Fund with the procedures required by
Investment Company Act Release No. 10666, or any subsequent release
or releases of the Securities and Exchange Commission relating to
the maintenance of segregated accounts by registered investment
companies and (iv) for other proper purposes, but only, in the case
of clause (iv), upon receipt of, in addition to proper
instructions, a certificate signed by two officers of the Fund,
setting forth the purpose such segregated account and declaring
such purpose to be a proper purpose.
O. Ownership Certificates for Tax Purposes The Custodian shall execute
ownership and other certificates and affidavits for all federal and
state tax purposes in connection with receipt of income or other
payments with respect to securities of the Fund held by it and in
connection with transfers of securities.
P. Proxies The Custodian shall, with respect to the securities held by
it hereunder, cause to be promptly delivered to the Fund all forms
of proxies and all notices of meetings and any other notices or
announcements or other written information affecting or relating to
the securities, and upon receipt of proper instructions shall
execute and deliver or cause its nominee to execute and deliver
such proxies or other authorizations as may be required. Neither
the Custodian nor its nominee shall vote upon any of the securities
or execute any proxy to vote thereon or give any consent or take
any other action with respect thereto (except as otherwise herein
provided) unless ordered to do so by proper instructions.
Q. Communications Relating to Fund Portfolio Securities The Custodian
shall deliver promptly to the Fund all written information
(including, without limitation, pendency of call and maturities of
securities and participation interests and expirations of rights in
connection therewith and notices of exercise of call and put
options written by the Fund and the maturity of futures contracts
purchased or sold by the Fund) received by the Custodian from
issuers and other persons relating to the securities and
participation interests being held for the Fund. With respect to
tender or exchange offers, the Custodian shall deliver promptly to
the Fund all written information received by the Custodian from
issuers and other persons relating to the securities and
participation interests whose tender or exchange is sought and from
the party (or his agents) making the tender or exchange offer.
R. Exercise of Rights; Tender Offers In the case of tender offers,
similar offers to purchase or exercise rights (including, without
limitation, pendency of calls and maturities of securities and
participation interests and expirations of rights in connection
therewith and notices of exercise of call and put options and the
maturity of futures contracts) affecting or relating to securities
and participation interests held by the Custodian under this
Agreement, the Custodian shall have responsibility for promptly
notifying the Fund of all such offers in accordance with the
standard of reasonable care set forth in Section 8 hereof. For all
such offers for which the Custodian is responsible as provided in
this Paragraph R, the Fund shall have responsibility for providing
the Custodian with all necessary instructions in timely fashion.
Upon receipt of proper instructions, the Custodian shall timely
deliver to the issuer or trustee thereof, or to the agent of
either, warrants, puts, calls, rights or similar securities for the
purpose of being exercised or sold upon proper receipt therefor and
upon receipt of assurances satisfactory to the Custodian that the
new securities and cash, if any, acquired by such action are to be
delivered to the Custodian or any subcustodian employed pursuant to
Section 2 hereof. Upon receipt of proper instructions, the
Custodian shall timely deposit securities upon invitations for
tenders of securities upon proper receipt therefor and upon receipt
of assurances satisfactory to the Custodian that the consideration
to be paid or delivered or the tendered securities are to be
returned to the Custodian or subcustodian employed pursuant to
Section 2 hereof. Notwithstanding any provision of this Agreement
to the contrary, the Custodian shall take all necessary action,
unless otherwise directed to the contrary by proper instructions,
to comply with the terms of all mandatory or compulsory exchanges,
calls, tenders, redemptions, or similar rights of security
ownership, and shall thereafter promptly notify the Fund in writing
of such action. S. Depository Receipts The Custodian shall, upon
receipt of proper instructions, surrender or cause to be
surrendered foreign securities to the depository used by an issuer
of American Depository Receipts or International Depository
Receipts (hereinafter collectively referred to as "ADRs") for such
securities, against a written receipt therefor adequately
describing such securities and written evidence satisfactory to the
Custodian that the depository has acknowledged receipt of
instructions to issue with respect to such securities ADRs in the
name of a nominee of the Custodian or in the name or nominee name
of any subcustodian employed pursuant to Section 2 hereof, for
delivery to the Custodian or such subcustodian at such place as the
Custodian or such subcustodian may from time to time designate. The
Custodian shall, upon receipt of proper instructions, surrender
ADRs to the issuer thereof against a written receipt therefor
adequately describing the ADRs surrendered and written evidence
satisfactory to the Custodian that the issuer of the ADRs has
acknowledged receipt of instructions to cause its depository to
deliver the securities underlying such ADRs to the Custodian or to
a subcustodian employed pursuant to Section 2 hereof.
T. Interest Bearing Call or Time Deposits The Custodian shall, upon
receipt of proper instructions, place interest bearing fixed term
and call deposits with the banking department of such banking
institution (other than the Custodian) and in such amounts as the
Fund may designate. Deposits may be denominated in U.S. Dollars or
other currencies. The Custodian shall include in its records with
respect to the assets of the Fund appropriate notation as to the
amount and currency of each such deposit, the accepting banking
institution and other appropriate details and shall retain such
forms of advice or receipt evidencing the deposit, if any, as may
be forwarded to the Custodian by the banking institution. Such
deposits shall be deemed portfolio securities of the applicable
Fund for the purposes of this Agreement, and the Custodian shall be
responsible for the collection of income from such accounts and the
transmission of cash to and from such accounts.
U. Options, Futures Contracts and Foreign Currency Transactions
1. Options. The Custodians shall, upon receipt of proper
instructions and in accordance with the provisions of any
agreement between the Custodian, any registered broker-dealer
and, if necessary, the Fund, relating to compliance with the
rules of the Options Clearing Corporation or of any registered
national securities exchange or similar organization or
organizations, receive and retain confirmations or other
documents, if any, evidencing the purchase or writing of an
option on a security or securities index or other financial
instrument or index by the Fund; deposit and maintain in a
segregated account for each Fund separately, either physically
or by book-entry in a Securities System, securities subject to
a covered call option written by the Fund; and release and/or
transfer such securities or other assets only in accordance
with a notice or other communication evidencing the expiration,
termination or exercise of such covered option furnished by the
Options Clearing Corporation, the securities or options
exchange on which such covered option is traded or such other
organization as may be responsible for handling such options
transactions. The Custodian and the broker-dealer shall be
responsible for the sufficiency of assets held in each Fund's
segregated account in compliance with applicable margin
maintenance requirements.
2. Futures Contracts The Custodian shall, upon receipt of
proper instructions, receive and retain confirmations and other
documents, if any, evidencing the purchase or sale of a futures
contract or an option on a futures contract by the Fund;
deposit and maintain in a segregated account, for the benefit
of any futures commission merchant, assets designated by the
Fund as initial, maintenance or variation "margin" deposits
(including mark-to-market payments) intended to secure the
Fund's performance of its obligations under any futures
contracts purchased or sold or any options on futures contracts
written by Fund, in accordance with the provisions of any
agreement or agreements among the Fund, the Custodian and such
futures commission merchant, designed to comply with the rules
of the Commodity Futures Trading Commission and/or of any
contract market or commodities exchange or similar organization
regarding such margin deposits or payments; and release and/or
transfer assets in such margin accounts only in accordance with
any such agreements or rules. The Custodian and the futures
commission merchant shall be responsible for the sufficiency of
assets held in the segregated account in compliance with the
applicable margin maintenance and mark-to-market payment
requirements.
3. Foreign Exchange Transactions The Custodian shall, pursuant
to proper instructions, enter into or cause a subcustodian to
enter into foreign exchange contracts or options to purchase
and sell foreign currencies for spot and future delivery on
behalf and for the account of the Fund. Such transactions may
be undertaken by the Custodian or subcustodian with such
banking or financial institutions or other currency brokers, as
set forth in proper instructions. Foreign exchange contracts
and options shall be deemed to be portfolio securities of the
Fund; and accordingly, the responsibility of the Custodian
therefor shall be the same as and no greater than the
Custodian's responsibility in respect of other portfolio
securities of the Fund. The Custodian shall be responsible for
the transmittal to and receipt of cash from the currency broker
or banking or financial institution with which the contract or
option is made, the maintenance of proper records with respect
to the transaction and the maintenance of any segregated
account required in connection with the transaction. The
Custodian shall have no duty with respect to the selection of
the currency brokers or banking or financial institutions with
which the Fund deals or for their failure to comply with the
terms of any contract or option. Without limiting the
foregoing, it is agreed that upon receipt of proper
instructions and insofar as funds are made available to the
Custodian for the purpose, the Custodian may (if determined
necessary by the Custodian to consummate a particular
transaction on behalf and for the account of the Fund) make
free outgoing payments of cash in the form of U.S. dollars or
foreign currency before receiving confirmation of a foreign
exchange contract or confirmation that the countervalue
currency completing the foreign exchange contact has been
delivered or received. The Custodian shall not be responsible
for any costs and interest charges which may be incurred by the
Fund or the Custodian as a result of the failure or delay of
third parties to deliver foreign exchange; provided that the
Custodian shall nevertheless be held to the standard of care
set forth in, and shall be liable to the Fund in accordance
with, the provisions of Section 8.
V. Actions Permitted Without Express Authority The Custodian may in
its discretion, without express authority from the Fund:
1) make payments to itself or others for minor expenses of
handling securities or other similar items relating to its
duties under this Agreement, provided, that all such
payments shall be accounted for by the Custodian to the
Treasurer of the Fund;
2) surrender securities in temporary form for securities in
definitive form;
3) endorse for collection, in the name of the Fund, checks,
drafts and other negotiable instruments; and
4) in general, attend to all nondiscretionary details in
connection with the sale, exchange, substitution, purchase,
transfer and other dealings with the securities and property
of the Fund except as otherwise directed by the Fund.
4. Duties of Bank with Respect to Books of Account and Calculations of Net
Asset Value
The Bank shall as Agent (or as Custodian, as the case may be) keep such
books of account (including records showing the adjusted tax costs of the Fund's
portfolio securities) and render as at the close of business on each day a
detailed statement of the amounts received or paid out and of securities
received or delivered for the account of the Fund during said day and such other
statements, including a daily trial balance and inventory of the Fund's
portfolio securities; and shall furnish such other financial information and
data as from time to time requested by the Treasurer or any executive officer of
the Fund; and shall compute and determine, as of the close of business of the
New York Stock Exchange, or at such other time or times as the Board may
determine, the net asset value of a Share in the Fund, such computation and
determination to be made in accordance with the governing documents of the Fund
and the votes and instructions of the Board at the time in force and applicable,
and promptly notify the Fund and its investment adviser and such other persons
as the Fund may request of the result of such computation and determination. In
computing the net asset value the Custodian may rely upon security quotations
received by telephone or otherwise from sources or pricing services designated
by the Fund by proper instructions, and may further rely upon information
furnished to it by any authorized officer of the Fund relative (a) to
liabilities of the Fund not appearing on its books of account, (b) to the
existence, status and proper treatment of any reserve or reserves, (c) to any
procedures established by the Board regarding the valuation of portfolio
securities, and (d) to the value to be assigned to any bond, note, debenture,
Treasury bill, repurchase agreement, subscription right, security, participation
interests or other asset or property for which market quotations are not readily
available.
5. Records and Miscellaneous Duties
The Bank shall create, maintain and preserve all records relating to
its activities and obligations under this Agreement in such manner as will meet
the obligations of the Fund under the Investment Company Act of 1940, with
particular attention to Section 31 thereof and Rules 31a-1 and 31a-2 thereunder,
applicable federal and state tax laws and any other law or administrative rules
or procedures which may be applicable to the Fund. All books of account and
records maintained by the Bank in connection with the performance of its duties
under this Agreement shall be the property of the Fund, shall at all times
during the regular business hours of the Bank be open for inspection by
authorized officers, employees or agents of the Fund, and in the event of
termination of this Agreement shall be delivered to the Fund or to such other
person or persons as shall be designated by the Fund. Disposition of any account
or record after any required period of preservation shall be only in accordance
with specific instructions received from the Fund. The Bank shall assist
generally in the preparation of reports to shareholders, to the Securities and
Exchange Commission, including Forms N-SAR and N-1Q, to state "blue sky"
authorities and to others, audits of accounts, and other ministerial matters of
like nature; and, upon request, shall furnish the Fund's auditors with an
attested inventory of securities held with appropriate information as to
securities in transit or in the process of purchase or sale and with such other
information as said auditors may from time to time request. The Custodian shall
also maintain records of all receipts, deliveries and locations of such
securities, together with a current inventory thereof, and shall conduct
periodic verifications (including sampling counts at the Custodian) of
certificates representing bonds and other securities for which it is responsible
under this Agreement in such manner as the Custodian shall determine from time
to time to be advisable in order to verify the accuracy of such inventory. The
Bank shall not disclose or use any books or records it has prepared or
maintained by reason of this Agreement in any manner except as expressly
authorized herein or directed by the Fund, and the Bank shall keep confidential
any information obtained by reason of this Agreement.
6. Opinion of Fund's Independent Public Accountants
The Custodian shall take all reasonable action, as the Fund may from
time to time request, to enable the Fund to obtain from year to year favorable
opinions from the Fund's independent public accountants with respect to its
activities hereunder in connection with the preparation of the Fund's
registration statement and Form N-SAR or other periodic reports to the
Securities and Exchange Commission and with respect to any other requirements of
such Commission.
7. Compensation and Expenses of Bank
The Bank shall be entitled to reasonable compensation for its services
as Custodian and Agent, as agreed upon from time to time between the Fund and
the Bank. The Bank shall be entitled to receive from the Fund on demand
reimbursement for its cash disbursements, expenses and charges, including
counsel fees, in connection with its duties as Custodian and Agent hereunder,
but excluding salaries and usual overhead expenses.
8. Responsibility of Bank
So long as and to the extent that it is in the exercise of reasonable
care, the Bank as Custodian and Agent shall be held harmless in acting upon any
notice, request, consent, certificate or other instrument reasonably believed by
it to be genuine and to be signed by the proper party or parties.
The Bank as Custodian and Agent shall be entitled to rely on and may
act upon advice of counsel (who may be counsel for the Fund) on all matters, and
shall be without liability for any action reasonably taken or omitted pursuant
to such advice.
The Bank as Custodian and Agent shall be held to the exercise of
reasonable care in carrying out the provisions of this Agreement but shall be
liable only for its own negligent or bad faith acts or failures to act.
Notwithstanding the foregoing, nothing contained in this paragraph is intended
to nor shall it be construed to modify the standards of care and responsibility
set forth in Section 2 hereof with respect to subcustodians and in subparagraph
f of Paragraph L of Section 3 hereof with respect to Securities Systems and in
subparagraph g of Paragraph M of Section 3 hereof with respect to an Approved
Book-Entry System for Commercial Paper.
The Custodian shall be liable for the acts or omissions of a foreign
banking institution to the same extent as set forth with respect to
subcustodians generally in Section 2 hereof, provided that, regardless of
whether assets are maintained in the custody of a foreign banking institution, a
foreign securities depository or a branch of a U.S. bank, the Custodian shall
not be liable for any loss, damage, cost, expense, liability or claim resulting
from, or caused by, the direction of or authorization by the Fund to maintain
custody of any securities or cash of the Fund in a foreign county including, but
not limited to, losses resulting from nationalization, expropriation, currency
restrictions, acts of war, civil war or terrorism, insurrection, revolution,
military or usurped powers, nuclear fission, fusion or radiation, earthquake,
storm or other disturbance of nature or acts of God.
If the Fund requires the Bank in any capacity to take any action with
respect to securities, which action involves the payment of money or which
action may, in the opinion of the Bank, result in the Bank or its nominee
assigned to the Fund being liable for the payment of money or incurring
liability of some other form, the Fund, as a prerequisite to requiring the
Custodian to take such action, shall provide indemnity to the Custodian in an
amount and form satisfactory to it.
9. Persons Having Access to Assets of the Fund
(i) No trustee, director, general partner, officer, employee or agent
of the Fund shall have physical access to the assets of the Fund held by the
Custodian or be authorized or permitted to withdraw any investments of the Fund,
nor shall the Custodian deliver any assets of the Fund to any such person. No
officer or director, employee or agent of the Custodian who holds any similar
position with the Fund or the investment adviser of the Fund shall have access
to the assets of the Fund.
(ii) Access to assets of the Fund held hereunder shall only be
available to duly authorized officers, employees, representatives or agents of
the Custodian or other persons or entities for whose actions the Custodian shall
be responsible to the extent permitted hereunder, or to the Fund's independent
public accountants in connection with their auditing duties performed on behalf
of the Fund.
(iii) Nothing in this Section 9 shall prohibit any officer, employee or
agent of the Fund or of the investment adviser of the Fund from giving
instructions to the Custodian or executing a certificate so long as it does not
result in delivery of or access to assets of the Fund prohibited by paragraph
(i) of this Section 9.
10. Effective Period, Termination and Amendment; Successor Custodian
This Agreement shall become effective as of its execution, shall
continue in full force and effect until terminated as hereinafter provided, may
be amended at any time by mutual agreement of the parties hereto and may be
terminated by either party by an instrument in writing delivered or mailed,
postage prepaid to the other party, such termination to take effect not sooner
than sixty (60) days after the date of such delivery or mailing; provided, that
the Fund may at any time by action of its Board, (i) substitute another bank or
trust company for the Custodian by giving notice as described above to the
Custodian, or (ii) immediately terminate this Agreement in the event of the
appointment of a conservator or receiver for the Custodian by the Federal
Deposit Insurance Corporation or by the Banking Commissioner of The Commonwealth
of Massachusetts or upon the happening of a like event at the direction of an
appropriate regulatory agency or court of competent jurisdiction. Upon
termination of the Agreement, the Fund shall pay to the Custodian such
compensation as may be due as of the date of such termination and shall likewise
reimburse the Custodian for its costs, expenses and disbursements.
Unless the holders of a majority of the outstanding Shares of the Fund
vote to have the securities, funds and other properties held hereunder delivered
and paid over to some other bank or trust company, specified in the vote, having
not less than $2,000,000 of aggregate capital, surplus and undivided profits, as
shown by its last published report, and meeting such other qualifications for
custodians set forth in the Investment Company Act of 1940, the Board shall,
forthwith, upon giving or receiving notice of termination of this Agreement,
appoint as successor custodian, a bank or trust company having such
qualifications. The Bank, as Custodian, Agent or otherwise, shall, upon
termination of the Agreement, deliver to such successor custodian, all
securities then held hereunder and all funds or other properties of the Fund
deposited with or held by the Bank hereunder and all books of account and
records kept by the Bank pursuant to this Agreement, and all documents held by
the Bank relative thereto. In the event that no such vote has been adopted by
the shareholders and that no written order designating a successor custodian
shall have been delivered to the Bank on or before the date when such
termination shall become effective, then the Bank shall not deliver the
securities, funds and other properties of the Fund to the Fund but shall have
the right to deliver to a bank or trust company doing business in Boston,
Massachusetts of its own selection, having an aggregate capital, surplus and
undivided profits, as shown by its last published report, of not less than
$2,000,000, all funds, securities and properties of the Fund held by or
deposited with the Bank, and all books of account and records kept by the Bank
pursuant to this Agreement, and all documents held by the Bank relative thereto.
Thereafter such bank or trust company shall be the successor of the Custodian
under this Agreement.
11. Interpretive and Additional Provisions
In connection with the operation of this Agreement, the Custodian and
the Fund may from time to time agree on such provisions interpretive of or in
addition to the provisions of this Agreement as may in their joint opinion be
consistent with the general tenor of this Agreement. Any such interpretive or
additional provisions shall be in a writing signed by both parties and shall be
annexed hereto, provided that no such interpretive or additional provisions
shall contravene any applicable federal or state regulations or any provision of
the governing instruments of the Fund. No interpretive or additional provisions
made as provided in the preceding sentence shall be deemed to be an amendment of
this Agreement.
12. Notices
Notices and other writings delivered or mailed postage prepaid to the
Fund addressed to 24 Federal Street, Boston, Massachusetts 02110, or to such
other address as the Fund may have designated to the Bank, in writing, or to
Investors Bank & Trust Company, 24 Federal Street, Boston, Massachusetts 02110,
shall be deemed to have been properly delivered or given hereunder to the
respective addressees.
13. Massachusetts Law to Apply
This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of The Commonwealth of
Massachusetts.
If the Fund is a Massachusetts business trust, the Custodian expressly
acknowledges the provision in the Fund's declaration of Trust limiting the
personal liability of the trustees and shareholders of the Fund; and the
Custodian agrees that it shall have recourse only to the assets of the Fund for
the payment of claims or obligations as between the Custodian and the Fund
arising out of this Agreement, and the Custodian shall not seek satisfaction of
any such claim or obligation from the trustees or shareholders of the Fund.
14. Adoption of the Agreement by the Fund
The Fund represents that its Board has approved this Agreement and has
duly authorized the Fund to adopt this Agreement, such adoption to be evidenced
by a letter agreement between the Fund and the Bank reflecting such adoption,
which letter agreement shall be dated and signed by a duly authorized officer of
the Fund and duly authorized officer of the Bank. This Agreement shall be deemed
to be duly executed and delivered by each of the parties in its name and behalf
by its duly authorized officer as of the date of such letter agreement, and this
Agreement shall be deemed to supersede and terminate, as of the date of such
letter agreement, all prior agreements between the Fund and the Bank relating to
the custody of the Fund's assets.
* * * * *
EXHIBIT 99.9(a)
EATON VANCE GROWTH TRUST
ADMINISTRATIVE SERVICES AGREEMENT
On behalf of EV Traditional Growth Fund
AGREEMENT made this 1st day of August, 1994, between Eaton Vance Growth
Trust, a Massachusetts business trust (the "Trust") on behalf of EV Traditional
Growth Fund (the "Fund") and Eaton Vance Management, a Massachusetts business
Trust, (the "Administrator").
1. Duties of the Administrator. The Trust hereby employs the
Administrator to act as administrator of the Fund and to administer its affairs,
subject to the supervision of the Trustees of the Trust, for the period and on
the terms set forth in this Agreement.
The Administrator hereby accepts such employment, and undertakes to
afford to the Trust the advice and assistance of the Administrator's
organization in the administration of the Fund and to furnish for the use of the
Fund office space and all necessary office facilities, equipment and personnel
for administering the affairs of the Fund and to pay the salaries and fees of
all officers and Trustees of the Trust who are members of the Administrator's
organization and all personnel of the Administrator performing services relating
to administrative activities. The Administrator shall for all purposes herein be
deemed to be an independent contractor and shall, except as otherwise expressly
provided or authorized, have no authority to act for or represent the Trust in
any way or otherwise be deemed an agent of the Trust.
Notwithstanding the foregoing, the Administrator shall not be deemed to
have assumed any duties with respect to, and shall not be responsible for, the
management of the Fund's assets or the rendering of investment advice and
supervision with respect thereto or the distribution of shares of the Fund, nor
shall the Administrator be deemed to have assumed or have any responsibility
with respect to functions specifically assumed by any transfer agent, custodian
or shareholder servicing agent of the Trust or the Fund. It is intended that the
assets of the Fund will be invested in an interest in Growth Portfolio (the
"Portfolio"), a registered open-end investment company having substantially the
same investment objective, policies and restrictions as the Fund. Boston
Management and Research ("BMR"), an affiliate of the Administrator, currently
acts as investment adviser to the Portfolio under the Investment Advisory
Agreement dated August 1, 1994 between the Portfolio and BMR.
2. Allocation of Charges and Expenses. The Administrator shall pay the
entire salaries and fees of all of the Trust's Trustees and officers who devote
part or all of their time to the affairs of the Administrator, and the salaries
and fees of such persons shall not be deemed to be expenses incurred by the
Trust for purposes of this Section 2. Except as provided in the foregoing
sentence, the Administrator shall not pay any expenses relating to the Trust or
the Fund including, without implied limitation, (i) expenses of maintaining the
Fund and continuing its existence, (ii) registration of the Trust under the
Investment Company Act of 1940, (iii) commissions, fees and other expenses
connected with the acquisition, disposition and valuation of securities and
other investments, (iv) auditing, accounting and legal expenses, (v) taxes and
interest, (vi) governmental fees, (vii) expenses of issue, sale, repurchase and
redemption of shares, (viii) expenses of registering and qualifying the Trust,
the Fund and its shares under federal and state securities laws and of preparing
and printing prospectuses for such purposes and for distributing the same to
shareholders and investors, and fees and expenses of registering and maintaining
registrations of the Fund and of the Fund's principal underwriter, if any, as
broker-dealer or agent under state securities laws, (ix) expenses of reports and
notices to shareholders and of meetings of shareholders and proxy solicitations
therefor, (x) expenses of reports to governmental officers and commissions, (xi)
insurance expenses, (xii) association membership dues (xiii) fees, expenses and
disbursements of custodians and subcustodians for all services to the Fund
(including without limitation safekeeping of funds, securities and other
investments, keeping of books and accounts and determination of net asset
values), (xiv) fees, expenses and disbursements of transfer agents, dividend
disbursing agents, shareholder servicing agents and registrars for all services
to the Fund, (xv) expenses for servicing shareholder accounts, (xvi) any direct
charges to shareholders approved by the Trustees of the Trust, (xvii)
compensation and expenses of Trustees of the Trust who are not members of the
Adviser's organization, and (xviii) such non-recurring items as may arise,
including expenses incurred in connection with litigation, proceedings and
claims and the obligation of the Trust to indemnify its Trustees and officers
with respect thereto.
3. Compensation of Administrator. The Board of Trustees of the Trust
have currently determined that, based on the current level of compensation
payable to BMR by the Portfolio under the Portfolio's present Investment
Advisory Agreement with BMR, the Administrator shall receive no compensation
from the Trust or the Fund in respect of the services to be rendered and the
facilities to be provided by the Administrator under this Agreement. If the
Trustees determine that the Trust or Fund, should compensate the Administrator
for such services and facilities, such compensation shall be set forth in a new
agreement or in an amendment to this Agreement to be entered into by the parties
hereto.
4. Other Interests. It is understood that Trustees and officers of the
Trust and shareholders of the Fund are or may be or become interested in the
Administrator as trustees, officers, employees, shareholders or otherwise and
that trustees, officers, employees and shareholders of the Administrator are or
may be or become similarly interested in the Fund, and that the Administrator
may be or become interested in the Fund as shareholder or otherwise. It is also
understood that trustees, officers, employees and shareholders of the
Administrator may be or become interested (as directors, trustees, officers,
employees, stockholders or otherwise) in other companies or entities (including,
without limitation, other investment companies) which the Administrator may
organize, sponsor or acquire, or with which it may merge or consolidate, and
which may include the words "Eaton Vance" or "Eaton & Howard" or "Vance Sanders"
or any combination thereof as part of their name, and that the Administrator or
its subsidiaries or affiliates may enter into advisory or management or
administration agreements or other contracts or relationships with such other
companies or entities.
5. Limitation of Liability of the Administrator. The services of the
Administrator to the Trust and the Fund are not to be deemed to be exclusive,
the Administrator being free to render services to others and engage in other
business activities. In the absence of willful misfeasance, bad faith, gross
negligence or reckless disregard of obligations or duties hereunder on the part
of the Administrator, the Administrator shall not be subject to liability to the
Trust or the Fund or to any shareholder of the Fund for any act or omission in
the course of, or connected with, rendering services hereunder or for any losses
which may be sustained in the acquisition, holding or disposition of any
security or other investment.
6. Sub-Administrators. The Administrator may employ one or more
sub-administrators from time to time to perform such of the acts and services of
the Administrator and upon such terms and conditions as may be agreed upon
between the Administrator and such sub-administrators and approved by the
Trustees of the Trust.
7. Duration and Termination of this Agreement. This Agreement shall
become effective upon the date of its execution, and, unless terminated as
herein provided, shall remain in full force and effect through and including
February 28, 1996 and shall continue in full force and effect indefinitely
thereafter, but only so long as such continuance after February 28, 1996 is
specifically approved at least annually (i) by the Board of Trustees of the
Trust and (ii) by the vote of a majority of those Trustees of the Trust who are
not interested persons of the Administrator or the Trust.
Either party hereto may, at any time on sixty (60) days' prior written
notice to the other, terminate this Agreement without the payment of any
penalty, by action of Trustees of the Trust or the trustee of the Administrator,
as the case may be, and the Trust may, at any time upon such written notice to
the Administrator, terminate this Agreement by vote of a majority of the
outstanding voting securities of the Fund. This Agreement shall terminate
automatically in the event of its assignment.
8. Amendments of the Agreement. This Agreement may be amended by a
writing signed by both parties hereto, provided that no amendment to this
Agreement shall be effective until approved (i) by the vote of a majority of
those Trustees of the Trust who are not interested persons of the Administrator
or the Trust, and (ii) by vote of the Board of Trustees of the Trust.
9. Limitation of Liability. The Fund shall not be responsible for the
obligations of any other series of the Trust. The Administrator expressly
acknowledges the provision in the Declaration of Trust of the Trust limiting the
personal liability of shareholders of the Fund and of the officers and Trustees
of the Trust, and the Administrator hereby agrees that it shall have recourse to
the Trust or the Fund for payment of claims or obligations as between the Trust
or the Fund and the Administrator arising out of this Agreement and shall not
seek satisfaction from the shareholders or any shareholder of the Fund or from
the officers or Trustees of the Trust.
10. Use of the Name "Eaton Vance." The Administrator hereby consents to
the use by the Fund of the name "Eaton Vance" as part of the Fund's name;
provided, however, that such consent shall be conditioned upon the employment of
the Administrator or one of its affiliates as the administrator of the Fund. The
name "Eaton Vance" or any variation thereof may be used from time to time in
other connections and for other purposes by the Administrator and its affiliates
and other investment companies that have obtained consent to the use of the name
"Eaton Vance." The Administrator shall have the right to require the Fund to
cease using the name "Eaton Vance" as part of the Fund's name if the Fund
ceases, for any reason, to employ the Administrator or one of its affiliates as
the Fund's administrator. Future names adopted by the Fund for itself, insofar
as such names include identifying words requiring the consent of the
Administrator, shall be the property of the Administrator and shall be subject
to the same terms and conditions.
11. Certain Definitions. The terms "assignment" and "interested
persons" when used herein shall have the respective meanings specified in the
Investment Company Act of 1940 as now in effect or as hereafter amended subject,
however, to such exemptions as may be granted by the Securities and Exchange
Commission by any rule, regulation or order. The term "vote of a majority of the
outstanding voting securities" shall mean the vote of the lesser of (a) 67 per
centum or more of the shares of the Fund present or represented by proxy at the
meeting if the holders of more than 50 per centum of the outstanding shares of
the Fund are present or represented by proxy at the meeting, or (b) more than 50
per centum of the outstanding shares of the Fund.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first above written.
EATON VANCE GROWTH TRUST EATON VANCE MANAGEMENT
(on behalf of EV Traditional
Growth Fund)
By/s/ James B. Hawkes By/s/ H. Day Brigham Jr.
----------------------------- ---------------------------------
President Vice President and not individually
EXHIBIT 99.9(b)
EATON VANCE GROWTH TRUST
ADMINISTRATIVE SERVICES AGREEMENT
On behalf of EV Classic Growth Fund
AGREEMENT made this 1st day of August, 1994, between Eaton Vance Growth
Trust, a Massachusetts business trust (the "Trust") on behalf of EV Classic
Growth Fund (the "Fund") and Eaton Vance Management, a Massachusetts business
Trust, (the "Administrator").
1. Duties of the Administrator. The Trust hereby employs the
Administrator to act as administrator of the Fund and to administer its affairs,
subject to the supervision of the Trustees of the Trust, for the period and on
the terms set forth in this Agreement.
The Administrator hereby accepts such employment, and undertakes to
afford to the Trust the advice and assistance of the Administrator's
organization in the administration of the Fund and to furnish for the use of the
Fund office space and all necessary office facilities, equipment and personnel
for administering the affairs of the Fund and to pay the salaries and fees of
all officers and Trustees of the Trust who are members of the Administrator's
organization and all personnel of the Administrator performing services relating
to administrative activities. The Administrator shall for all purposes herein be
deemed to be an independent contractor and shall, except as otherwise expressly
provided or authorized, have no authority to act for or represent the Trust in
any way or otherwise be deemed an agent of the Trust.
Notwithstanding the foregoing, the Administrator shall not be deemed to
have assumed any duties with respect to, and shall not be responsible for, the
management of the Fund's assets or the rendering of investment advice and
supervision with respect thereto or the distribution of shares of the Fund, nor
shall the Administrator be deemed to have assumed or have any responsibility
with respect to functions specifically assumed by any transfer agent, custodian
or shareholder servicing agent of the Trust or the Fund. It is intended that the
assets of the Fund will be invested in an interest in Growth Portfolio (the
"Portfolio"), a registered open-end investment company having substantially the
same investment objective, policies and restrictions as the Fund. Boston
Management and Research ("BMR"), an affiliate of the Administrator, currently
acts as investment adviser to the Portfolio under the Investment Advisory
Agreement dated August 1, 1994 between the Portfolio and BMR.
2. Allocation of Charges and Expenses. The Administrator shall pay the
entire salaries and fees of all of the Trust's Trustees and officers who devote
part or all of their time to the affairs of the Administrator, and the salaries
and fees of such persons shall not be deemed to be expenses incurred by the
Trust for purposes of this Section 2. Except as provided in the foregoing
sentence, the Administrator shall not pay any expenses relating to the Trust or
the Fund including, without implied limitation, (i) expenses of maintaining the
Fund and continuing its existence, (ii) registration of the Trust under the
Investment Company Act of 1940, (iii) commissions, fees and other expenses
connected with the acquisition, disposition and valuation of securities and
other investments, (iv) auditing, accounting and legal expenses, (v) taxes and
interest, (vi) governmental fees, (vii) expenses of issue, sale, repurchase and
redemption of shares, (viii) expenses of registering and qualifying the Trust,
the Fund and its shares under federal and state securities laws and of preparing
and printing prospectuses for such purposes and for distributing the same to
shareholders and investors, and fees and expenses of registering and maintaining
registrations of the Fund and of the Fund's principal underwriter, if any, as
broker-dealer or agent under state securities laws, (ix) expenses of reports and
notices to shareholders and of meetings of shareholders and proxy solicitations
therefor, (x) expenses of reports to governmental officers and commissions, (xi)
insurance expenses, (xii) association membership dues (xiii) fees, expenses and
disbursements of custodians and subcustodians for all services to the Fund
(including without limitation safekeeping of funds, securities and other
investments, keeping of books and accounts and determination of net asset
values), (xiv) fees, expenses and disbursements of transfer agents, dividend
disbursing agents, shareholder servicing agents and registrars for all services
to the Fund, (xv) expenses for servicing shareholder accounts, (xvi) any direct
charges to shareholders approved by the Trustees of the Trust, (xvii)
compensation and expenses of Trustees of the Trust who are not members of the
Adviser's organization, and (xviii) such non-recurring items as may arise,
including expenses incurred in connection with litigation, proceedings and
claims and the obligation of the Trust to indemnify its Trustees and officers
with respect thereto.
3. Compensation of Administrator. The Board of Trustees of the Trust
have currently determined that, based on the current level of compensation
payable to BMR by the Portfolio under the Portfolio's present Investment
Advisory Agreement with BMR, the Administrator shall receive no compensation
from the Trust or the Fund in respect of the services to be rendered and the
facilities to be provided by the Administrator under this Agreement. If the
Trustees determine that the Trust or Fund, should compensate the Administrator
for such services and facilities, such compensation shall be set forth in a new
agreement or in an amendment to this Agreement to be entered into by the parties
hereto.
4. Other Interests. It is understood that Trustees and officers of the
Trust and shareholders of the Fund are or may be or become interested in the
Administrator as trustees, officers, employees, shareholders or otherwise and
that trustees, officers, employees and shareholders of the Administrator are or
may be or become similarly interested in the Fund, and that the Administrator
may be or become interested in the Fund as shareholder or otherwise. It is also
understood that trustees, officers, employees and shareholders of the
Administrator may be or become interested (as directors, trustees, officers,
employees, stockholders or otherwise) in other companies or entities (including,
without limitation, other investment companies) which the Administrator may
organize, sponsor or acquire, or with which it may merge or consolidate, and
which may include the words "Eaton Vance" or "Eaton & Howard" or "Vance Sanders"
or any combination thereof as part of their name, and that the Administrator or
its subsidiaries or affiliates may enter into advisory or management or
administration agreements or other contracts or relationships with such other
companies or entities.
5. Limitation of Liability of the Administrator. The services of the
Administrator to the Trust and the Fund are not to be deemed to be exclusive,
the Administrator being free to render services to others and engage in other
business activities. In the absence of willful misfeasance, bad faith, gross
negligence or reckless disregard of obligations or duties hereunder on the part
of the Administrator, the Administrator shall not be subject to liability to the
Trust or the Fund or to any shareholder of the Fund for any act or omission in
the course of, or connected with, rendering services hereunder or for any losses
which may be sustained in the acquisition, holding or disposition of any
security or other investment.
6. Sub-Administrators. The Administrator may employ one or more
sub-administrators from time to time to perform such of the acts and services of
the Administrator and upon such terms and conditions as may be agreed upon
between the Administrator and such sub-administrators and approved by the
Trustees of the Trust.
7. Duration and Termination of this Agreement. This Agreement shall
become effective upon the date of its execution, and, unless terminated as
herein provided, shall remain in full force and effect through and including
February 28, 1996 and shall continue in full force and effect indefinitely
thereafter, but only so long as such continuance after February 28, 1996 is
specifically approved at least annually (i) by the Board of Trustees of the
Trust and (ii) by the vote of a majority of those Trustees of the Trust who are
not interested persons of the Administrator or the Trust.
Either party hereto may, at any time on sixty (60) days' prior written
notice to the other, terminate this Agreement without the payment of any
penalty, by action of Trustees of the Trust or the trustee of the Administrator,
as the case may be, and the Trust may, at any time upon such written notice to
the Administrator, terminate this Agreement by vote of a majority of the
outstanding voting securities of the Fund. This Agreement shall terminate
automatically in the event of its assignment.
8. Amendments of the Agreement. This Agreement may be amended by a
writing signed by both parties hereto, provided that no amendment to this
Agreement shall be effective until approved (i) by the vote of a majority of
those Trustees of the Trust who are not interested persons of the Administrator
or the Trust, and (ii) by vote of the Board of Trustees of the Trust.
9. Limitation of Liability. The Fund shall not be responsible for the
obligations of any other series of the Trust. The Administrator expressly
acknowledges the provision in the Declaration of Trust of the Trust limiting the
personal liability of shareholders of the Fund and of the officers and Trustees
of the Trust, and the Administrator hereby agrees that it shall have recourse to
the Trust or the Fund for payment of claims or obligations as between the Trust
or the Fund and the Administrator arising out of this Agreement and shall not
seek satisfaction from the shareholders or any shareholder of the Fund or from
the officers or Trustees of the Trust.
10. Use of the Name "Eaton Vance." The Administrator hereby consents to
the use by the Fund of the name "Eaton Vance" as part of the Fund's name;
provided, however, that such consent shall be conditioned upon the employment of
the Administrator or one of its affiliates as the administrator of the Fund. The
name "Eaton Vance" or any variation thereof may be used from time to time in
other connections and for other purposes by the Administrator and its affiliates
and other investment companies that have obtained consent to the use of the name
"Eaton Vance." The Administrator shall have the right to require the Fund to
cease using the name "Eaton Vance" as part of the Fund's name if the Fund
ceases, for any reason, to employ the Administrator or one of its affiliates as
the Fund's administrator. Future names adopted by the Fund for itself, insofar
as such names include identifying words requiring the consent of the
Administrator, shall be the property of the Administrator and shall be subject
to the same terms and conditions.
11. Certain Definitions. The terms "assignment" and "interested
persons" when used herein shall have the respective meanings specified in the
Investment Company Act of 1940 as now in effect or as hereafter amended subject,
however, to such exemptions as may be granted by the Securities and Exchange
Commission by any rule, regulation or order. The term "vote of a majority of the
outstanding voting securities" shall mean the vote of the lesser of (a) 67 per
centum or more of the shares of the Fund present or represented by proxy at the
meeting if the holders of more than 50 per centum of the outstanding shares of
the Fund are present or represented by proxy at the meeting, or (b) more than 50
per centum of the outstanding shares of the Fund.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first above written.
EATON VANCE GROWTH TRUST EATON VANCE MANAGEMENT
(on behalf of EV Classic
Growth Fund)
By/s/ James B. Hawkes By/s/ H. Day Brigham Jr.
---------------------------- ------------------------------------
President Vice President and not individually
<PAGE>
EXHIBIT 99.9(c)
EATON VANCE GROWTH TRUST
ADMINISTRATIVE SERVICES AGREEMENT
On behalf of EV Marathon Growth Fund
AGREEMENT made this 1st day of August, 1994, between Eaton Vance Growth
Trust, a Massachusetts business trust (the "Trust") on behalf of EV Marathon
Growth Fund (the "Fund") and Eaton Vance Management, a Massachusetts business
Trust, (the "Administrator").
1. Duties of the Administrator. The Trust hereby employs the
Administrator to act as administrator of the Fund and to administer its affairs,
subject to the supervision of the Trustees of the Trust, for the period and on
the terms set forth in this Agreement.
The Administrator hereby accepts such employment, and undertakes to
afford to the Trust the advice and assistance of the Administrator's
organization in the administration of the Fund and to furnish for the use of the
Fund office space and all necessary office facilities, equipment and personnel
for administering the affairs of the Fund and to pay the salaries and fees of
all officers and Trustees of the Trust who are members of the Administrator's
organization and all personnel of the Administrator performing services relating
to administrative activities. The Administrator shall for all purposes herein be
deemed to be an independent contractor and shall, except as otherwise expressly
provided or authorized, have no authority to act for or represent the Trust in
any way or otherwise be deemed an agent of the Trust.
Notwithstanding the foregoing, the Administrator shall not be deemed to
have assumed any duties with respect to, and shall not be responsible for, the
management of the Fund's assets or the rendering of investment advice and
supervision with respect thereto or the distribution of shares of the Fund, nor
shall the Administrator be deemed to have assumed or have any responsibility
with respect to functions specifically assumed by any transfer agent, custodian
or shareholder servicing agent of the Trust or the Fund. It is intended that the
assets of the Fund will be invested in an interest in Growth Portfolio (the
"Portfolio"), a registered open-end investment company having substantially the
same investment objective, policies and restrictions as the Fund. Boston
Management and Research ("BMR"), an affiliate of the Administrator, currently
acts as investment adviser to the Portfolio under the Investment Advisory
Agreement dated August 1, 1994 between the Portfolio and BMR.
2. Allocation of Charges and Expenses. The Administrator shall pay the
entire salaries and fees of all of the Trust's Trustees and officers who devote
part or all of their time to the affairs of the Administrator, and the salaries
and fees of such persons shall not be deemed to be expenses incurred by the
Trust for purposes of this Section 2. Except as provided in the foregoing
sentence, the Administrator shall not pay any expenses relating to the Trust or
the Fund including, without implied limitation, (i) expenses of maintaining the
Fund and continuing its existence, (ii) registration of the Trust under the
Investment Company Act of 1940, (iii) commissions, fees and other expenses
connected with the acquisition, disposition and valuation of securities and
other investments, (iv) auditing, accounting and legal expenses, (v) taxes and
interest, (vi) governmental fees, (vii) expenses of issue, sale, repurchase and
redemption of shares, (viii) expenses of registering and qualifying the Trust,
the Fund and its shares under federal and state securities laws and of preparing
and printing prospectuses for such purposes and for distributing the same to
shareholders and investors, and fees and expenses of registering and maintaining
registrations of the Fund and of the Fund's principal underwriter, if any, as
broker-dealer or agent under state securities laws, (ix) expenses of reports and
notices to shareholders and of meetings of shareholders and proxy solicitations
therefor, (x) expenses of reports to governmental officers and commissions, (xi)
insurance expenses, (xii) association membership dues (xiii) fees, expenses and
disbursements of custodians and subcustodians for all services to the Fund
(including without limitation safekeeping of funds, securities and other
investments, keeping of books and accounts and determination of net asset
values), (xiv) fees, expenses and disbursements of transfer agents, dividend
disbursing agents, shareholder servicing agents and registrars for all services
to the Fund, (xv) expenses for servicing shareholder accounts, (xvi) any direct
charges to shareholders approved by the Trustees of the Trust, (xvii)
compensation and expenses of Trustees of the Trust who are not members of the
Adviser's organization, and (xviii) such non-recurring items as may arise,
including expenses incurred in connection with litigation, proceedings and
claims and the obligation of the Trust to indemnify its Trustees and officers
with respect thereto.
3. Compensation of Administrator. The Board of Trustees of the Trust
have currently determined that, based on the current level of compensation
payable to BMR by the Portfolio under the Portfolio's present Investment
Advisory Agreement with BMR, the Administrator shall receive no compensation
from the Trust or the Fund in respect of the services to be rendered and the
facilities to be provided by the Administrator under this Agreement. If the
Trustees determine that the Trust or Fund, should compensate the Administrator
for such services and facilities, such compensation shall be set forth in a new
agreement or in an amendment to this Agreement to be entered into by the parties
hereto.
4. Other Interests. It is understood that Trustees and officers of the
Trust and shareholders of the Fund are or may be or become interested in the
Administrator as trustees, officers, employees, shareholders or otherwise and
that trustees, officers, employees and shareholders of the Administrator are or
may be or become similarly interested in the Fund, and that the Administrator
may be or become interested in the Fund as shareholder or otherwise. It is also
understood that trustees, officers, employees and shareholders of the
Administrator may be or become interested (as directors, trustees, officers,
employees, stockholders or otherwise) in other companies or entities (including,
without limitation, other investment companies) which the Administrator may
organize, sponsor or acquire, or with which it may merge or consolidate, and
which may include the words "Eaton Vance" or "Eaton & Howard" or "Vance Sanders"
or any combination thereof as part of their name, and that the Administrator or
its subsidiaries or affiliates may enter into advisory or management or
administration agreements or other contracts or relationships with such other
companies or entities.
5. Limitation of Liability of the Administrator. The services of the
Administrator to the Trust and the Fund are not to be deemed to be exclusive,
the Administrator being free to render services to others and engage in other
business activities. In the absence of willful misfeasance, bad faith, gross
negligence or reckless disregard of obligations or duties hereunder on the part
of the Administrator, the Administrator shall not be subject to liability to the
Trust or the Fund or to any shareholder of the Fund for any act or omission in
the course of, or connected with, rendering services hereunder or for any losses
which may be sustained in the acquisition, holding or disposition of any
security or other investment.
6. Sub-Administrators. The Administrator may employ one or more
sub-administrators from time to time to perform such of the acts and services of
the Administrator and upon such terms and conditions as may be agreed upon
between the Administrator and such sub-administrators and approved by the
Trustees of the Trust.
7. Duration and Termination of this Agreement. This Agreement shall
become effective upon the date of its execution, and, unless terminated as
herein provided, shall remain in full force and effect through and including
February 28, 1996 and shall continue in full force and effect indefinitely
thereafter, but only so long as such continuance after February 28, 1996 is
specifically approved at least annually (i) by the Board of Trustees of the
Trust and (ii) by the vote of a majority of those Trustees of the Trust who are
not interested persons of the Administrator or the Trust.
Either party hereto may, at any time on sixty (60) days' prior written
notice to the other, terminate this Agreement without the payment of any
penalty, by action of Trustees of the Trust or the trustee of the Administrator,
as the case may be, and the Trust may, at any time upon such written notice to
the Administrator, terminate this Agreement by vote of a majority of the
outstanding voting securities of the Fund. This Agreement shall terminate
automatically in the event of its assignment.
8. Amendments of the Agreement. This Agreement may be amended by a
writing signed by both parties hereto, provided that no amendment to this
Agreement shall be effective until approved (i) by the vote of a majority of
those Trustees of the Trust who are not interested persons of the Administrator
or the Trust, and (ii) by vote of the Board of Trustees of the Trust.
9. Limitation of Liability. The Fund shall not be responsible for the
obligations of any other series of the Trust. The Administrator expressly
acknowledges the provision in the Declaration of Trust of the Trust limiting the
personal liability of shareholders of the Fund and of the officers and Trustees
of the Trust, and the Administrator hereby agrees that it shall have recourse to
the Trust or the Fund for payment of claims or obligations as between the Trust
or the Fund and the Administrator arising out of this Agreement and shall not
seek satisfaction from the shareholders or any shareholder of the Fund or from
the officers or Trustees of the Trust.
10. Use of the Name "Eaton Vance." The Administrator hereby consents to
the use by the Fund of the name "Eaton Vance" as part of the Fund's name;
provided, however, that such consent shall be conditioned upon the employment of
the Administrator or one of its affiliates as the administrator of the Fund. The
name "Eaton Vance" or any variation thereof may be used from time to time in
other connections and for other purposes by the Administrator and its affiliates
and other investment companies that have obtained consent to the use of the name
"Eaton Vance." The Administrator shall have the right to require the Fund to
cease using the name "Eaton Vance" as part of the Fund's name if the Fund
ceases, for any reason, to employ the Administrator or one of its affiliates as
the Fund's administrator. Future names adopted by the Fund for itself, insofar
as such names include identifying words requiring the consent of the
Administrator, shall be the property of the Administrator and shall be subject
to the same terms and conditions.
11. Certain Definitions. The terms "assignment" and "interested
persons" when used herein shall have the respective meanings specified in the
Investment Company Act of 1940 as now in effect or as hereafter amended subject,
however, to such exemptions as may be granted by the Securities and Exchange
Commission by any rule, regulation or order. The term "vote of a majority of the
outstanding voting securities" shall mean the vote of the lesser of (a) 67 per
centum or more of the shares of the Fund present or represented by proxy at the
meeting if the holders of more than 50 per centum of the outstanding shares of
the Fund are present or represented by proxy at the meeting, or (b) more than 50
per centum of the outstanding shares of the Fund.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first above written.
EATON VANCE GROWTH TRUST EATON VANCE MANAGEMENT
(on behalf of EV Marathon
Growth Fund)
By/s/ James B. Hawkes By/s/ H. Day Brigham Jr.
---------------------------- -------------------------------------
President Vice President and not individually
<PAGE>
EXHIBIT 99.9(d)
TRANSFER AGENCY AGREEMENT
AGREEMENT dated as of June 7, 1989, between Depositors Fund, Inc. (the
"Fund"), having its principal office and place of business at 24 Federal Street,
Boston, Massachusetts 02110 and BOSTON SAFE DEPOSIT AND TRUST COMPANY (the
"Transfer Agent"), a Massachusetts corporation with principal offices at One
Boston Place, Boston, Massachusetts 02108.
W I T N E S S E T H:
That for and in consideration of the mutual promises hereinafter set
forth, the Fund and the Transfer Agent agree as follows:
1. Definitions. Whenever used in this Agreement, the following words and
phrases, unless the context otherwise requires, shall have the following
meanings:
(a) "Articles of Organization" shall mean the Articles of Organization
of the Fund as the same may be amended from time to time;
(b) "Authorized Person" shall be deemed to include the President, any
Vice President, the Secretary and Treasurer of the Fund, the persons listed in
Appendix A hereto, and any other person, whether or not such person is an
Officer or employee of the Fund, duly authorized to give Oral Instructions or
Written Instructions on behalf of the Fund as indicated in a certificate
furnished to the Transfer Agent pursuant to Section 5(d) or 5(e) hereof as may
be received by the Transfer Agent from time to time;
(c) "Commission" shall have the meaning given it in the 1940 Act;
(d) "Custodian" refers to the custodian and any sub-custodian of all
securities and other property which the Fund may from time to time deposit, or
cause to be deposited or held under the name or account of such custodian
(pursuant to the Custodian Agreement between the Fund and Investors Bank & Trust
Company);
(e) "Directors" or "Board of Directors" refers to the duly elected
Directors of the Fund;
(f) "Portfolio" refers to the Depositors Fund or any such other
separate and distinct Portfolio as may from time to time be established and
designated by the Fund in accordance with the provisions of the Articles of
Organization.
(g) "Officer" shall mean the President, any Vice President, Secretary
and Treasurer;
(h) "Oral Instructions" shall mean instructions, other than written
instructions, actually received by the Transfer Agent from a person reasonably
believed by the Transfer Agent to be an Authorized Person;
(i) "Prospectus" shall mean the Fund's current prospectus and statement
of additional information relating to the registration of the Fund's Shares
under the Securities Act of 1933, as amended, and the 1940 Act;
(j) "Shares" refers to the Shares of Common Stock of the Fund;
(k) "Shareholder" means a record owner of Shares;
(l) "Written Instructions" shall mean written communication signed by
an Authorized Person and actually received by the Transfer Agent; and
(m) The "1940 Act" refers to the Investment Company Act of 1940 and the
Rules and regulations promulgated thereunder, all as amended from time to time.
2. Appointment of the Transfer Agent. The Fund hereby appoints and
constitutes the Transfer Agent as transfer agent for its Shares and as
shareholder servicing agent for the fund, and the Transfer agent accepts such
appointment and agrees to perform the duties hereinafter set forth. If the Board
of Directors, pursuant to the Articles of Incorporation, hereafter establishes
and designates a new Portfolio, the Transfer Agent agrees that it will act as
transfer agent and shareholder servicing agent for such new Portfolio in
accordance with the terms set forth herein. The Directors shall cause a written
notice to be sent to the Transfer Agent to the effect that it has established a
new Portfolio and that it appoints the Transfer Agent in a reasonable period of
time prior to the commencement of operations of the new Portfolio to allow the
Transfer Agent, in the ordinary course of its business, to prepare to perform
its duties for such new Portfolio.
3. Compensation
(a) The Fund will compensate the Transfer Agent for the
performance of its obligations hereunder in accordance with the fees set forth
in the written schedule of fees annexed hereto as Schedule A and incorporated
herein. Schedule A does not include out-of-pocket disbursements of the Transfer
Agent for which the Transfer Agent shall be entitled to bill the Fund
separately.
The Transfer Agent will bill the Fund as soon as practicable
after the end of each calendar month, and said billings will be detailed in
accordance with the Schedule A. The Fund will promptly pay to the Transfer Agent
the amount of such billing.
Out-of-pocket disbursements shall mean the items specified in
the written schedule of out-of-pocket charges annexed hereto as Schedule B and
incorporated herein. Reimbursement by the Fund for such out-of-pocket
disbursements incurred by the Transfer Agent in any month shall be made as soon
as practicable after the receipt of an itemized bill from the Transfer Agent.
Reimbursement by the Fund for expenses other than those specified in Schedule B
shall be upon mutual agreement of the parties as provided in Schedule B.
(b) Any compensation agreed to hereunder may be adjusted from
time to time by attaching to Schedule A of this Agreement a revised Fee
Schedule, dated and signed by an Officer of each party hereto.
4. Documents. In connection with the appointment of the Transfer Agent,
the Fund shall upon request, on or before the date this Agreement goes into
effect, but in any case within a reasonable period of time for the Transfer
Agent to prepare to perform its duties hereunder, furnish the Transfer agent
with the following documents.
(a) A certified copy of the Articles of Organization of the
Fund, as amended;
(b) A copy of the resolution of the Directors authorizing the
execution and delivery of this Agreement;
(c) If applicable, a specimen of the certificate for Shares of
the Fund in the form approved by the Directors, with a certificate of an Officer
of the Fund as to such approval; authorizing the execution and delivery of this
Agreement;
(d) All account application forms and other documents relating
to Shareholder accounts or to any plan, program or service offered by the Fund;
(e) A signature card bearing the signatures of any Officer of
the Fund or other Authorized Person who will sign Written Instructions.
5. Further Documentation. The Fund will also furnish from time to time
the following documents:
(a) Certified copies of each vote of the Directors designating
Authorized Persons;
(b) The current Prospectus and Statement of Additional
Information of the Fund.
(c) Certificates as to any change in any Officer or Director of
the Fund.
6. Representations of the Fund. The Fund represents to the Transfer
Agent that all outstanding Shares are validly issued, fully paid and
non-assessable by the Fund. When Shares are hereafter issued in accordance with
the terms of the Fund's Articles of Organization and its Prospectus, such Shares
shall be validly issued, fully paid and non-assessable by the Fund.
In the event that the Board of Directors shall declare a
distribution payable in Shares, the Fund shall deliver to the Transfer Agent
written notice of such declaration signed on behalf of the Fund by an Officer
thereof, upon which the Transfer Agent shall be entitled to rely for all
purposes, certifying (i) the number of Shares involved and (ii) that all
appropriate action has been taken.
7. Duties of the Transfer Agent. The Transfer Agent shall be
responsible for administering and/or performing transfer agent functions; for
acting as service agent in connection with dividend and distribution functions;
and for performing shareholder account and administrative agent functions in
connection with the issuance, transfer and redemption or repurchase (including
coordination with the Custodian) of shares. The operating standards and
procedures to be followed shall be determined from time to time by agreement
between the Transfer Agent and the Fund and shall be expressed in a written
schedule of duties of the Transfer Agent annexed hereto as Schedule C and
incorporated herein.
8. Recordkeeping and Other Information. The Transfer Agent shall create
and maintain all necessary records in accordance with all applicable laws, rules
and regulations, including but not limited to records required by Section 31 (a)
of the 1940 Act, as amended, and the Rules thereunder, as the same may be
amended from time to time, and those records pertaining to the various functions
performed by it hereunder which are set forth in Schedule C and Exhibit 1 to
Schedule C attached hereto. All records and other data established and
maintained by the Transfer Agent pursuant to this Agreement shall be the
property of the Fund, shall be available for inspection and use by the Fund and
shall be surrendered promptly upon request. Where applicable, such records shall
be maintained by the Transfer Agent for the periods and in the places required
by Rule 31a-2 under the 1940 Act, as the same may be amended from time to time.
Disposition of such records after such prescribed periods shall be as mutually
agreed upon from time to time by the Fund and the Transfer Agent.
9. Audit, Inspection and Visitation. The Transfer Agent shall make
available during regular business hours all records and other data created and
maintained pursuant to this Agreement for reasonable audit and inspection by the
Fund, or any person retained by the Fund. Upon reasonable notice by the Fund,
the Transfer Agent shall make available during regular business hours its
facilities and premises employed in connection with its performance of this
Agreement for reasonable visitation by the Fund, or any person retained by the
Fund, to inspect its operating capabilities or for any other reason.
10. Confidentiality of Records. The Transfer Agent agrees to treat all
records and other information relative to the Fund and its prior, present or
potential Shareholders in confidence except that, after prior notification to
and approval in writing by the Fund, which approval shall not be unreasonably
withheld and may not be withheld where the Transfer Agent may be exposed to
civil or criminal contempt proceedings for failure to comply, when requested to
divulge such information by duly constituted authorities, or when so requested
by the Fund.
11. Reliance by the Transfer Agent; Instructions
(a) The Transfer Agent will be protected in acting upon
Written or Oral Instructions which it may reasonably have believed to have been
executed or orally communicated by an Authorized Person and will not be held to
have any notice of any change of authority or any person until receipt of a
Written Instruction thereof from the Fund. The Transfer Agent will also be
protected in processing Share certificates which it reasonably believes to bear
the proper manual or facsimile signatures of the Officers of the Fund and the
proper countersignature of the Transfer Agent.
(b) At any time the Transfer Agent may apply to any Authorized
Person of the Fund for Written Instructions and may, after obtaining prior oral
or written approval by an Authorized Person, seek advice from legal counsel for
the Fund, or its own legal counsel, with respect to any matter arising in
connection with this Agreement, and it shall not be liable for any action taken
or not taken or suffered by it in good faith in accordance with such Written
Instructions or in accordance with the opinion of counsel for the Fund or for
the Transfer Agent. Written Instructions requested by the Transfer Agent will be
provided by the Fund within a reasonable period of time. In addition, the
Transfer Agent, its Officers, agents or employees, shall accept Oral
Instructions or Written Instructions given to them by any person representing or
acting on behalf of the Fund only if said representative is known by the
Transfer Agent, or its Officers, agents or employees, to be an Authorized
Person. The Transfer Agent shall have no duty or obligation to inquire into, nor
shall the Transfer Agent be responsible for, the legality of any act done by it
upon the request or direction of an Authorized Person.
(c) Notwithstanding any of the foregoing provisions of this Agreement,
the Transfer Agent shall be under no duty or obligation to inquire into, and
shall not be liable for: (i) the legality of the issuance or sale of any Shares
or the sufficiency of the amount to be received therefor; (ii) the propriety of
the amount per share to be paid on any redemption; (iii) the legality of the
declaration of any dividend by the Directors, or the legality of the issuance of
any Shares in payment of any dividend; or (iv) the legality of any
recapitalization or readjustment of the Shares.
12. Acts of God, etc. The Transfer Agent will not be liable or
responsible for delays or errors by reason or circumstances beyond its control,
including acts of civil or military authority, national emergencies, fire,
mechanical breakdown beyond its control, flood, acts of God, insurrection, war,
riots, and loss of communication or power supply.
13. Duty of Care and Indemnification. The Fund will indemnify the
Transfer Agent against and hold it harmless from any and all losses, claims,
damages, liabilities or expenses (including reasonable counsel fees and
expenses) resulting from any claim, demand, action or suit not resulting from
the bad faith or negligence of the Transfer Agent, and arising out of, or in
connection with, its duties on behalf of the Fund hereunder. In addition, the
Fund will indemnify the Transfer Agent against and hold it harmless from any and
all losses, claims, damages, liabilities or expenses (including reasonable
counsel fees and expenses) resulting from any claim, demand action or suit as a
result of: (i) any action taken in accordance with Written or Oral Instructions,
or any other instructions, or share certificates reasonably believed by the
Transfer Agent to be genuine and to be signed, countersigned or executed, or
orally communicated by an Authorized Person; (ii) any action taken in accordance
with written or oral advice reasonably believed by the Transfer Agent to have
been given by counsel for the Fund or its own counsel; or (iii) any action taken
as a result of any error or omission in any record which the Transfer Agent had
no reason to believe was inaccurate (including but not limited to magnetic
tapes, computer printouts, hard copies and microfilm copies) and was delivered,
or caused to be delivered, by the Fund to the Transfer Agent in connection with
this Agreement.
In any case in which the Fund may be asked to indemnify or hold the
Transfer Agent harmless, the Fund shall be advised of all pertinent facts
concerning the situation in question and the Transfer Agent shall notify the
Fund promptly concerning any situation which presents or appears likely to
present a claim for indemnification against the Fund. The Fund shall have the
option to defend the Transfer Agent against any claim which may be the subject
of this indemnification and, in the event that the Fund so elects, such defense
shall be conducted by counsel chosen by the Fund, and thereupon the Fund shall
take over complete defense of the claim and the Transfer Agent shall sustain no
further legal or other expenses in such situation for which it seeks
indemnification under this Section 13. The Transfer Agent will not confess any
claim or make any compromise in any case in which the Fund will be asked to
provide indemnification, except with the Fund's prior written consent. The
obligations of the parties hereto under this Section shall survive the
termination of this Agreement.
14. Terms and Termination. This Agreement shall become effective on the
date first set forth above (the "Effective date") and shall continue in effect
from year to year thereafter as the parties may mutually agree; provided,
however, that either party hereto may terminate this Agreement by giving to the
other party a notice in writing specifying the date of such termination, which
shall not be less than 60 days after the date of receipt of such notice. In the
event such notice is given by the Fund, it shall be accompanied by a resolution
of the Board of Directors, certified by a Secretary, electing to terminate this
Agreement and designating a successor transfer agent or transfer agents. Upon
such termination the Transfer Agent will deliver to such successor a certified
list of shareholders of the Fund (with names, addresses and taxpayer
identification or Social Security numbers and such other federal tax information
as the Transfer Agent may be required to maintain), an historical record of the
account of each shareholder and the status thereof, and all other relevant
books, records, correspondence, and other data established or maintained by the
Transfer Agent under this Agreement in the form reasonably acceptable to the
Fund, and will cooperate in the transfer of such duties and responsibilities,
including provisions for assistance from the Transfer Agent's personnel in the
establishment of books, records and other data by such successor or successors.
If this Agreement is terminated, the Transfer Agent shall deliver all
records and data established or maintained under this Agreement without
compensation or other fees except that the Transfer Agent shall be entitled to
incidental out-of-pocket expenses as limited by and provided for in Schedule B
to this Agreement incurred in the delivery of such records and data.
15. Amendment. This Agreement may not be amended or modified in any
manner except by a written agreement executed by both parties.
16. Subcontracting. The Fund agrees that the Transfer Agent may, in its
discretion, subcontract for certain of the services described under this
Agreement or the Schedules hereto; provided that the appointment of any such
Agent shall not relieve the Transfer Agent of its responsibilities hereunder and
provided that the Transfer Agent has given 30 days prior written notice to an
Authorized Person.
17. Use of Transfer Agent's Name. The Transfer Agent shall approve all
reasonable uses of its name which merely refer in accurate terms to its
appointment hereunder or which are required by the Commission or a state
securities commission.
18. Use of the Fund's Name. The Transfer Agent shall not use the name
of the Fund or material relating to the Fund on any documents or forms for other
than internal use in a manner not approved prior thereto in writing; provided,
that the Fund shall approve all reasonable uses of its name which merely refer
in accurate terms to the appointment of the Transfer Agent or which are required
by the Commission or a state securities commission.
19. Security. The Transfer Agent represents and warrants that, to best
of its knowledge, the various procedures and systems which the Transfer Agent
has implemented or will implement with regard to safeguarding from loss or
damage attributable to fire, theft or any other cause (including provision for
24 hours-a-day restricted access) of the Fund's records and other data and the
Transfer Agent's records, data, equipment, facilities and other property used in
the performance of its obligations hereunder are adequate and that it will make
such changes therein from time to time as in its judgement are required for the
secure performance of its obligations hereunder. The parties shall review such
systems and procedures on a periodic basis.
20. Insurance. The Transfer Agent shall notify the Fund should any of
its insurance coverage as set forth in Schedule D attached hereto be changed for
any reason. Such notification shall include the date of change and reason or
reasons therefor. The Transfer Agent shall notify the Fund of any claims against
it whether or not they may be covered by insurance and shall notify the Fund
from time to time as may be appropriate, and at least within 30 days following
the end of each fiscal year of the Transfer Agent, of the total outstanding
claims made by the Transfer Agent under its insurance coverage.
21. Miscellaneous
(a) Any notice or other instrument authorized or required by
this Agreement to be given in writing to the Fund or the Transfer Agent, shall
be sufficiently given if addressed to that party and received by it at its
office set forth below or at such other place as it may from time to time
designate in writing.
To the Fund:
Depositors Fund, Inc.
24 Federal Street
Boston, Massachusetts 02110
Attention: H. Day Brigham, Jr., Esq.
To the Transfer Agent:
Boston Safe Deposit and Trust Company
One Boston Place
Boston, Massachusetts 02108
Attn: Susan Mann
(b) This Agreement shall extend to and shall be binding upon the
parties hereto, and their respective successors and assigns; provided, however,
that this Agreement shall be assignable without the written consent of the other
party.
(c) This Agreement shall be construed in accordance with the laws of
the Commonwealth of Massachusetts.
(d) This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original; but such counterparts shall,
together, constitute only one instrument.
(e) The captions of this Agreement are included for convenience or
reference only and in no way define or delimit any of the provisions hereof or
otherwise affect their construction or effect.
22. Liability of Directors, Officers and Shareholders. The execution
and delivery of this Agreement have been authorized by the Directors of the Fund
and signed by an authorized Officer of the Fund, acting as such, and neither
such authorization by such Directors nor such execution and delivery by such
Officer shall be deemed to have been made by any of them individually or to
impose any liability on any of them personally, and the obligations of this
Agreement are not are not binding upon any of the Directors or shareholders of
the Fund, but bind only the property of the Fund.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective Officers thereunder duly authorized as of the day
and year first above written.
Depositors Fund, Inc.
Attest: /s/ Paul W. Wallace, Jr. By: /s/ James L. O'Connor
------------------------- -------------------------
BOSTON SAFE DEPOSIT AND
TRUST COMPANY
Attest: By: /s/ Susan Mann
------------------------- -------------------------
<PAGE>
Appendix A
AUTHORIZED PERSONS
Benjamin A. Rowland, Jr.
Richard E. Houghton
Daniel A. MacLellan
Robert A. Chisholm
<PAGE>
Schedule A
SCHEDULE OF FEES
Transfer Agent Fees are paid monthly based on the Funds flat charge:
$1250 per month
<PAGE>
Schedule B
OUT-OF-POCKET EXPENSES
The Fund shall reimburse the Transfer Agent monthly for the following
out-of-pocket expenses:
* Postage and mailing
* forms
* outgoing wire charges
* telephone
* if applicable, magnetic tape and freight
* retention of records
* microfilm/microfiche
* stationery
* if applicable, terminals, transmitting lines and any
expenses incurred in connection with such terminals
and lines
The Fund agrees that an estimate of the postage and mailing expenses of
the Transfer Agent will be paid on the day of or prior to a mailing if requested
reasonably in advance by the Transfer Agent. In addition, the Fund will
reimburse the Transfer Agent for other expenses incurred by the Transfer Agent
which the Fund and the Transfer Agent for other expenses incurred by the
Transfer Agent which the Fund and the Transfer Agent mutually agree are not
otherwise properly borne by the Transfer Agent as part of its duties and
obligations under the Agreement.
<PAGE>
Schedule C
DUTIES OF THE TRANSFER AGENT (See Exhibit 1 for Summary of Services)
1. Shareholder Information. The Transfer Agent shall maintain a record
of the number of Shares held by each holder of record which shall include their
addresses and taxpayer identification numbers and which shall indicate whether
such Shares are held in certificated or uncertificated form.
2. Shareholder Services. The Transfer Agent will investigate all
Shareholder inquiries relating to Shareholder accounts and will answer all
correspondence from Shareholders and others relating to its duties hereunder
between the Transfer Agent and the Fund. The Transfer Agent shall keep records
between the Transfer Agent and the Fund. The Transfer Agent shall keep records
of Shareholder correspondence and replies thereto, and of the lapse of time
between the receipt of such correspondence and the mailing of such replies.
3. State Registration Reports. The Transfer Agent shall furnish the
Fund, on a state-by-state basis, sales reports, such periodic and special
reports as the Fund may reasonably request, and such other information,
including Shareholder lists and statistical information concerning accounts, as
may be agreed upon from time to time between the Fund and the Transfer Agent.
4. Share Certificates
(a) At the expenses of the Fund, the Transfer Agent shall
maintain an adequate supply of blank Share certificates to meet the Transfer
Agent's requirements therefor. Such Share certificates shall be properly signed
by facsimile. The Fund agrees that, notwithstanding the death, resignation, or
removal of any Officer of the Fund whose signature appears on such certificates,
the Transfer Agent may continue to countersign certificates which bear such
certificates, the Transfer Agent may continue to countersign certificates which
bear such signatures until otherwise directed by the Fund.
(b) The Transfer Agent shall issue replacement Share
certificates in lieu of certificates which have been lost, stolen or destroyed
without any further action by the Board of Directors or any Officer of the Fund,
upon receipt by the Transfer Agent of properly executed affidavits and lost
certificate bonds, in form satisfactory to the Transfer Agent, with the Fund and
the Transfer Agent as obligees under the bond.
(c) The Transfer Agent shall also maintain a record of each
certificate issued, the number of Shares represented thereby and the holder of
record. With respect to Shares held in open accounts or uncertificated forms,
i.e., no certificate being issued with respect thereto, the Transfer Agent shall
maintain comparable records of the record holders thereof, including their
names, addresses and taxpayer identification numbers. The Transfer Agent shall
further maintain separately for the Fund a stop transfer record on lost and/or
replaced certificates.
5. Mailing Communications to Shareholders; Proxy Materials. The
Transfer Agent will address and mail to Shareholders of the Fund all reports to
Shareholders, dividend and distribution notices and proxy material for the
Fund's meetings of Shareholders, and such other communications as the Fund may
authorize. In connection with meetings of Shareholders, the Transfer Agent will
prepare Shareholder lists, mail and certify as to the mailing of proxy
materials, process and tabulate returned proxy cards, report on proxies voted
prior to meetings, act as inspector of election at meetings and certify Shares
voted at meetings.
6. Sales of Shares
(a) Processing of Investment Checks or Other Investments. Upon
receipt of any check or other instrument drawn or endorsed to it as agent for,
or identified as being for the account of, the Fund, or drawn or endorsed to the
Distributor of the Fund's Shares for the purchase of Shares, the Transfer Agent
shall stamp the check with the date of receipt, shall forthwith process the same
for collection and shall record the number of Shares sold, the trade date and
price per Share, and the amount of money to be delivered to the Custodian of the
Fund for the sale of such Shares.
Upon receipt of an order to purchase shares from a broker or
dealer pursuant to procedures approved by the Fund, the Transfer Agent shall
record the number of Shares sold for the account of such broker or dealer, the
trade date and price per share, the amount of money to be delivered to the
Custodian of the Fund for the sale of such Shares, and shall confirm such order
and amount to the broker or dealer promptly in accordance with good industry
practice.
(b) Issuance of Shares. Upon receipt of notification that the
Custodian has received the amount of money specified in the first paragraph of
section (a) above, the Transfer Agent shall issue to and hold in the account of
the purchaser/Shareholder, or if no account is specified therein, in a new
account established in the name of the purchaser, the number of Shares such
purchaser is entitled to receive, as determined in accordance with applicable
Federal law or regulation.
(c) Confirmation. The Transfer Agent shall send to the
purchaser/Shareholder a confirmation of each purchase which will show the new
share balance, the Shares held under a particular plan, if any, for withdrawing
investments, the amount invested and the price paid for the newly purchased
Shares, or will be in such other form as the Fund and the Transfer Agent may
agree from time to time.
(d) Suspension of Sales of Shares. The Transfer Agent shall
not be required to issue any Shares of the Fund where it has received a Written
Instruction from the Fund or written notice from any appropriate Federal or
state authority that the sale of the Shares of the Fund has been suspended or
discontinued, and the Transfer Agent shall be entitled to rely upon such Written
Instructions or written notification.
(e) Taxes in Connection with Issuance of Shares. Upon the
issuance of any Shares in accordance with the foregoing provisions of this
Section, the Transfer Agent shall not be responsible for the payment of any
original issue or other taxes required to be paid in connection with such
issuance.
(f) Returned Checks. In the event that any check or other
order for the payment of money is returned unpaid for any reason, the Transfer
Agent will: (i) give prompt notice of such return to the Fund or its designee;
(ii) place a stop transfer order against all Shares issued as a result of such
check or order; and (iii) take such actions as the Transfer Agent may from time
to time deem appropriate.
7. Redemptions
(a) Requirements for transfer or Redemption of Shares. The
Transfer Agent shall process all requests from Shareholders to transfer or
redeem Shares in accordance with the procedures set forth in the Fund's
Prospectus, or as authorized by the Fund pursuant to Written Instructions,
including, but not limited to, all requests from Shareholders to redeem Shares,
all determinations of the number of Shares required to be redeemed to fund
designated monthly payments and automatic payments or any such distribution or
withdrawal plan.
The Transfer Agent reserves the right to refuse to transfer or
redeem Shares until it is satisfied that the instructions to do so are valid and
genuine, in accordance with procedures set forth in the Fund's Prospectus. The
Transfer Agent shall incur no liability for the refusal, in good faith, to make
transfer or redemptions which the Transfer Agent, in its good judgment deems
improper or unauthorized based upon such procedures, or until it is reasonably
satisfied that there is no basis for any claim adverse to such transfer or
redemption.
The Transfer Agent may in effecting transactions, rely upon
the provisions of the Uniform Act for the Simplification of Fiduciary Security
Transfers or the provisions of Article 8 of the Uniform Commercial Code, as the
same may be amended from time to time in the Commonwealth of Massachusetts,
which in the opinion of legal counsel for the Fund or of its own legal counsel
protect it in not requiring certain documents in connection with the transfer or
redemption of Shares. The Fund may authorize the Transfer Agent to waive the
signature guarantee in certain cases by Written Instructions.
For the purpose of the redemption of Shares of the Fund which
have been purchased within 15 days of a redemption request, the Fund shall
provide the Transfer Agent with written Instructions (see Exhibit 2 hereto)
concerning the time within which such requests may be honored.
(b) Notice to Custodian. When Shares are redeemed, the
Transfer Agent shall, upon receipt of the instructions and documents in proper
form, deliver to the Custodian a notification setting forth the number of Shares
to be redeemed. Such redemptions shall be reflected an appropriate maintained by
the Transfer Agent reflecting outstanding Shares of the Fund and Shares
attributed to individual accounts and, if applicable, any individual withdrawal
or distribution plan.
(c) Payment of Redemption Proceeds. The Transfer Agent shall,
upon receipt of the money paid to it by the Custodian for the redemption of
Shares, pay to the Shareholder, or his authorized agent or legal representative,
such moneys as are received from the Custodian, all in accordance with the
redemption procedures described in the Fund's Prospectus; provided, however,
that the Transfer Agent shall pay the proceeds of any redemption of Shares
purchased within a period of time agreed upon in writing by the Transfer Agent
and the Fund only in accordance with procedures agreed to in writing by the
Transfer Agent and the Fund for determining that good funds have been collected
for the purchase of such Shares, such written procedures being attached to this
Schedule as Exhibit 2. The Fund shall indemnify the Transfer Agent for any
payment of redemption proceeds or refusal or make such payment if the payment or
refusal to pay is in accordance with said written procedures of notification of
the suspension of the determination of the Fund's net asset value.
The Transfer Agent shall not process or effect any redemptions
pursuant to a plan of distribution or redemption or in accordance with any other
Shareholder request upon the receipt by the Transfer Agent of notification of
the suspension of the determination of the Fund's net asset value.
(d) The Transfer Agent shall send to the Shareholder a
confirmation of each redemption showing the amount (and price) of shares
redeemed, the new Share balance, and such other information as the Fund may
request from time to time.
8. Dividends
(a) Notice to Transfer Agent and Custodian. Upon the
declaration of each dividend and each capital gains distribution by the Board of
Directors of the Fund with respect to its Shares, the Fund shall furnish to the
Transfer Agent Written Instructions setting forth, with respect to Shares the
date of the declaration of such dividend or distribution, the ex-dividend date,
the date of payment thereof, the record date as of which Shareholders entitled
to payment shall be determined, the amount payable per Share to the Shareholders
of record as of that date, the total amount payable to the Transfer Agent on the
payment date and whether such dividend or distribution is to be paid in Shares
of such class at net asset value.
On or before the payment date specified in such resolution of
the Board of Directors, the Fund will cause the Custodian of the Fund to pay to
the Transfer Agent sufficient cash to make payment to the Shareholders of record
as of such payment date.
(b) Payment of Dividends by the Transfer Agent. The Transfer
Agent will, on the designated payment date, automatically reinvest all dividends
in additional Shares at net asset value (determined on the record date of such
dividend with respect to Shareholders who have elected such reinvestment), and
promptly mail to each Shareholder at his address of record, or such other
address as the Shareholder may have designated, a statement showing the number
of full and fractional Shares (rounded to three decimal places) then currently
owned by the Shareholder and the net asset value of the Shares so credited to
the Shareholder's account. All other dividends shall be paid in cash, or by
check, to Shareholders of their designees, for shareholders who have so elected.
(c) Insufficient Funds for Payments. If the Transfer Agent
does not receive sufficient cash from the Custodian to make total dividend
and/or distribution payments to all Shareholders of the Fund as of the record
date, the Transfer Agent will, upon notifying the Fund, withhold payment to all
Shareholders of record as of the record date until such sufficient cash is
provided to the Transfer Agent.
(d) Information Returns. It is understood that the Transfer
Agent shall file in a timely manner such appropriate information returns
concerning the payment of dividends, return of capital, capital gains
distributions and special information returns for retirement plan accounts with
the proper Federal, state, local and other authorities as are required by law to
be filed and shall be responsible for the withholding of taxes, if any, due on
such dividends or distributions to Shareholders when required to withhold taxes
under applicable law. The Transfer Agent shall also mail copies of such
information returns to the appropriate Shareholders.
<PAGE>
Exhibit 1
to
Schedule C
Summary of Services
The services to be performed by the Transfer Agent shall be as follows;
A. DAILY RECORDS
Maintain daily on disk, tape or other magnetic media the following
information with respect to each shareholder account as received:
* Name and Address (Zip Code)
* Balance of Shares held by Transfer Agent
* State of residence code
* Beneficial owner code: i.e, male, female, joint tenant, etc.
* Dividend code (reinvestment)
* Number of Shares held in certificate form
* Tax information (certified tax identification number, any
TEFRA and backup withholding)
* Other special coding for retirement plan accounts
B. OTHER DAILY ACTIVITY
* Answer written inquiries relating to Shareholder accounts
(matters relating to portfolio management, distribution of
Shares and other management policy questions
will be referred to the Fund).
* Furnish a Statement of Additional Information to any
Shareholder who requests (in writing or by telephone) such
statement from the Transfer Agent.
* Examine and process Share purchase applications in accordance
with the Prospectus.
* Furnish Forms W-9 to all shareholders whose initial
subscriptions for Shares did not include certified taxpayer
identification numbers.
* Process additional payments into established Shareholder
accounts in accordance with the Prospectus.
* Upon receipt of proper instructions and all required
documentation, process requests for redemption of Shares.
* In accordance with procedures outlined in the Fund's
Prospectus, process and effect telephone exchanges among funds
with similar distribution plans.
* Maintain records of Letter of Intent escrow shares.
* Maintain records necessary to properly invoke the contingent
deferred sales charge.
* Identify redemption requests made with respect to accounts in
which Shares have been purchased within an agreed-upon period
of time for determining whether good funds have been collected
with respect to such purchase and process as agreed by the
Transfer Agent and the Fund in accordance with written
procedures set forth in the Fund's Prospectus.
* Examine and process all transfers of Shares, ensuring that all
transfer requirements and legal documents have been supplied.
* Issue and mail replacement checks.
* Maintain and execute share purchases with respect to Rights
of Accumulation.
C. SPECIAL REQUIREMENTS WITH RESPECT TO DAILY FUNDING
The Transfer Agent shall provide the Custodian on or before 9:30 A.M.
each day reports summarizing the previous day's transaction activity,
subtotaled by transaction type and trade date, and showing the balance
of the Fund's shares outstanding and other pertinent information. These
reports shall indicate all cash amounts to be paid or received by the
Fund for such purposes as settling sales and redemption of Fund Shares
or making distributions to Shareholders. Providing that the Transfer
Agent has reported the daily settlement amounts in a timely manner with
appropriate back-up documentation, the Fund will cause to be wired
monies due the Transfer Agent by the Fund on or before the close of
business that day. All monies due the Fund from the Transfer agent
shall be wired by the Transfer Agent on or before 2:00 P.M.
D. REPORTS PROVIDED TO THE FUND AND/OR THE CUSTODIAN
Furnish the following reports to the Fund:
* Daily financial totals
* Monthly form N-SAR information (sales/redemptions)
* Monthly report of outstanding Shares
* Monthly analysis of accounts by beneficial owner code
* Monthly analysis of accounts by share range
* Bi-monthly analysis of sales by state; provide a "warning
system" that informs the Fund when sales of Shares in certain
states are within a specified percentage of the Shares
registered in the state.
E. DIVIDEND AND REDEMPTION ACTIVITY
* Calculate and process Share dividends and distributions as
instructed by the Fund.
* Compute; prepare and mail all necessary reports to
Shareholders, federal and/or state authorities as requested by
the Fund.
* On the payable date of a distribution to shareholders, the
Transfer Agent shall deliver to the Custodian a complete
dividend reconciliation, including the record date shares,
total amount distributed, amount reinvested and cash due the
Transfer Agent. Payment of the cash by the Custodian upon
receipt of the reconciliation shall be contingent upon the
Custodian's assent that the figures in such reconciliation
appear to be reasonable.
* The Transfer Agent shall deliver a final dividend
reconciliation to the Custodian no later than 30 days after
the payable date which will reflect any adjustments made
subsequent to the payable date. After the final dividend
reconciliation is prepared, no further adjustments shall be
made to affect the total amount of the distribution without
the written approval of the Fund.
F. MEETINGS OF SHAREHOLDERS
* Cause to be mailed proxy and related material for all meetings
of Shareholders. Tabulate returned proxies (proxies must be
adaptable to mechanical equipment of the Transfer Agent or its
agents) and supply daily reports when sufficient proxies have
been received.
* Prepare and submit to the Fund an Affidavit of Mailing.
* At the time of the meeting, if requested, furnish a certified
list of Shareholders in hard copy, microfilm or microfiche and
Inspectors of Election.
G. PERIODIC ACTIVITIES
* Cause to be mailed reports, Prospectuses, and any other
enclosures requested by the Fund (material must be adaptable
to the mechanical equipment of Transfer Agent or its agents).
* Produce and mail periodic statements as requested to
Shareholders and broker/dealers.
H. AS OF TRANSACTIONS
* The Transfer Agent shall make every effort to minimize the
occurrence of "as of" transactions. For those that do occur,
the Transfer Agent shall maintain records as to the reason for
the delay in processing. In the event the delayed processing
is the fault of the Transfer Agent, and the Fund sustains a
loss, the Fund shall be entitled to compensation from the
Transfer Agent.
<PAGE>
Exhibit 2
to
Schedule C
It is hereby agreed between the Fund and the Transfer Agent that Shares
purchased by personal check may be redeemed only after they are deemed to have
been collected in accordance with the attached check-aging schedule. The
check-aging schedule, which is based upon a Shareholder's address of record,
designates the number of days between the receipt of an investment check by the
Transfer Agent and the date on which funds provided by such checks will be
deemed to have been collected.
<PAGE>
CHECK-AGING SCHEDULE
STATE STATE NUMBER
CODE ABBREV. STATE DESCRIPTION OF DAYS
----- ------- ----------------- -------
01 AL Alabama 9
02 AK Alaska 15
03 AZ Arizona 12
04 AR Arkansas 9
05 CA California 13
06 CO Colorado 11
07 CT Connecticut 7
08 DE Delaware 7
09 DC District of Columbia 8
10 FL Florida 9
11 GA Georgia 9
12 HI Hawaii 15
13 ID Idaho 11
14 IL Illinois 10
15 IN Indiana 10
16 IA Iowa 10
17 KS Kansas 10
18 KY Kentucky 9
19 LA Louisiana 9
20 ME Maine 7
21 MD Maryland 8
22 MA Massachusetts 7
23 MI Michigan 10
24 MN Minnesota 10
25 MS Mississippi 10
26 MO Missouri 10
27 MT Montana 11
28 NE Nebraska 10
29 NV Nevada 11
30 NH New Hampshire 7
<PAGE>
STATE STATE NUMBER
CODE ABBREV. STATE DESCRIPTION OF DAYS
----- ------- ----------------- -------
31 NJ New Jersey 8
32 NM New Mexico 11
33 NY New York 8
34 NC North Carolina 9
35 ND North Dakota 11
36 OH Ohio 10
37 OK Oklahoma 11
38 OR Oregon 12
39 PA Pennsylvania 8
40 RI Rhode Island 7
41 SC South Carolina 9
42 SD South Dakota 11
43 TN Tennessee 9
44 TX Texas 11
45 UT Utah 12
46 VT Vermont 7
47 VA Virginia 9
48 WA Washington 12
49 WV West Virginia 9
50 WI Wisconsin 10
51 WY Wyoming 11
52 PR Puerto Rico 16
53 53 APO, FPO New York
54 54 APO, FPO California
55 55 Other U.S. Possessions
56 56 Foreign Addresses
<PAGE>
SCHEDULE D
SCHEDULE OF INSURANCE COVERAGE
Boston Safe Deposit and Trust Company ("Boston Safe"), and its New York clearing
facility, Boston Safe Clearing Corporation, are named insureds under the
following insurance policies presently in force covering assets held in custody
at either company.
BANKERS BLANKET BOND
Basic Coverage: $22,500,000
Carrier: Continental Insurance Company #BND1619079, et al., policy
dated April 7, 1985 and effective until cancelled.
Deductible: $250,000
This coverage relates to any dishonest act of any employee of Boston
Safe and to any loss by burglary or mysterious unexplainable
disappearance of securities. The bond provides coverage for forgery
losses up to $2,500,000 and losses for Boston Safe's acceptance of
counterfeited securities in good faith up to $1,000,000.
Additional Coverage;
In addition, both companies are named insureds for $57,500,000 of
excess bond coverage through American Express, bringing the total
blanket bond coverage to $80,000,000
Also, through American Express, Boston Safe has $245,000,000 of Lost
Instrument Bond coverage in addition to the $80.0 million blanket bond
coverage.
ERRORS AND OMISSIONS & FIDUCIARY LIABILITY INSURANCE POLICY
Coverage: $5,000,000
Carrier First State Insurance Company, policy dated November 14, 1988,
and effective until November 14, 1989
Deductible: $250,000
Protection under the Errors and Omissions Policy for an account would
be in the area of any alleged negligent act, error, or omission
committed by Boston Safe in the course of its performance of its duties
as Custodian.
As a participant in the Depository Trust Company ("DTC"), Boston Safe is insured
under policies made available by DTC with respect to securities deposited.
<PAGE>
EXHIBIT 99.(9)(e)
AMENDMENT TO THE TRANSFER AGENCY AGREEMENT
This Agreement, dated as of February 1, 1993, is made to the Transfer
Agency Agreement (the "Agreements") dated June 7, 1989 between each of the EATON
VANCE HIGH YIELD MUNICIPALS TRUST (now Eaton Vance Municipals Trust); EATON
VANCE CALIFORNIA MUNICIPALS FUND (now Eaton Vance Investment Trust); EATON VANCE
LIQUID ASSETS TRUST; EATON VANCE HIGH INCOME TRUST; EATON VANCE NATURAL
RESOURCES TRUST; EATON VANCE EQUITY-INCOME TRUST; THE EXCHANGE FUND OF BOSTON,
INC.; SECOND FIDUCIARY EXCHANGE FUND, INC.; FIDUCIARY EXCHANGE FUND, INC.;
DEPOSITORS FUND OF BOSTON, INC.; CAPITAL EXCHANGE FUND, INC.; VANCE SANDERS
EXCHANGE FUND, L.P.; DIVERSIFICATION FUND, INC.; EATON VANCE MUNICIPAL BOND FUND
L.P.; EATON VANCE INVESTORS FUND, INC. (now Eaton Vance Investors Fund); EATON
VANCE GROWTH FUND, INC. (now Eaton Vance Investors Fund); EATON VANCE GROWTH
FUND, INC. (now Eaton Vance Growth Trust); EATON VANCE STOCK FUND; EATON VANCE
TAX-FREE RESERVES; EATON VANCE GOVERNMENT OBLIGATIONS TRUST; EATON VANCE TOTAL
RETURN TRUST; EATON VANCE INCOME FUND OF BOSTON, INC. (now Eaton Vance Income
Fund of Boston); and dated November 2, 1992, between each of EATON VANCE PRIME
RATE RESERVES and EATON VANCE SHORT-TERM GLOBAL INCOME FUND, INC. (collectively,
the "Funds") and THE SHAREHOLDER SERVICES GROUP, INC. (the "Transfer Agent"),
being a successor in interest to Boston Safe Deposit and Trust Company.
The Funds and the Transfer Agent agree that the Agreements shall, as of
February 1, 1993, be amended as follows:
1. The Transfer Agent will maintain its registration as a transfer
agent as provided in Section 17A(c) of the Securities Act of 1934, as amended,
(the "1934 Act") and shall comply with all applicable provisions of Section 17A
of the 1934 Act and the rules promulgated thereunder, as may be amended from
time to time, including rules relating to record retention.
2. The references to "legal counsel" and "counsel" in Section 11(b) and
13 of the Agreement and the third paragraph of Section 7(a) of Schedule C of the
Agreement shall be limited to (a) outside legal counsel of the Fund in its
capacity as such, and (b) outside legal counsel of the Transfer Agent if such
counsel has been specifically authorized by an Authorized Person of the Fund to
render its opinion on the matter that has arisen.
3. Section 12 of the Agreement is amended by adding the following
clause after the word "supply": ", provided, however, that the Transfer Agent
shall have acted in accordance with its Disaster Recovery Plan attached hereto
as Schedule F, which Schedule may be amended from time to time by agreement of
the Trust and the Transfer Agent.
4. Section 13 of the Agreement is deleted in its entirety and replaced
with the following paragraphs:
(a) Each party shall fulfill its obligations hereunder by
acting with reasonable care and in good faith;
(b) The Fund will indemnify the Transfer Agent against and
hold it harmless from any and all losses, claims, damages, liabilities or
expenses (including reasonable counsel fees and expenses) resulting from any
claim, demand, action or suit not resulting from the bad faith or negligence of
the Transfer Agent, and arising out of, or in connection with, its duties on
behalf of the Trust hereunder. In addition, the Fund will indemnify the Transfer
Agent against and hold it harmless from any and all losses, claims, damages,
liabilities or expenses (including reasonable counsel fees and expenses)
resulting from any claim, demand action or suit as a result of: (i) any action
taken in accordance with Written or Oral Instructions, or share certificates
reasonable believed by the Transfer Agent to be genuine and to be signed,
countersigned or executed, or orally communicated by an Authorized Person; (ii)
any action taken in accordance with written or oral advise reasonably believed
by the Transfer Agent to have been given by counsel for the Fund; or (iii) any
action taken as a result of any error or omission in any record which the
Transfer Agent had no reasonable basis to believe was inaccurate (including but
not limited to magnetic tapes, computer printouts, hard copies and microfilm
copies) and was delivered, or caused to be delivered, by the Fund to the
Transfer Agent in connection with this Agreement;
(c) The Transfer Agent will indemnify the Fund against and
hold it harmless from any and all losses, claims, damages, liabilities or
expenses (including reasonable counsel fees and expenses) resulting from any
claim, demand, action or suit not resulting from the bad faith or negligence of
the Fund, or arising out of, or in connection with, the Transfer Agent's breach
of this Agreement;
(d) In any case in which a party may be asked to indemnify or
hold the other party harmless, the indemnifying party shall be advised of all
pertinent facts concerning the situation in question and the party seeking
indemnification shall notify the indemnifying party promptly concerning any
situation which presents or appears likely to present a claim for
indemnification. The indemnifying party shall have the option to defend against
any claim which may be the subject of this indemnification and, in the event
that the indemnifying party so elects, such defense shall be conducted by
counsel chosen by the indemnifying party, and thereupon the indemnifying party
shall take over complete defense of the claim and the party seeking
indemnification shall sustain no further legal or other expenses in such
situation for which it seeks indemnification. The party seeking indemnification
will not confess any claim or make any compromise in any case in which the
indemnifying party will be asked to provide indemnification, except with the
indemnifying party's prior written consent; and
(e) The obligations of the parties hereto under this Section
shall survive the termination of this Agreement.
5. The second paragraph of Section 7(a) of Schedule C of the Agreement
is amended by deleting the second sentence, and the third paragraph of such
Section 7(a) of Schedule C is amended by deleting the first sentence.
6. Section 14 of each Agreement is deleted in its entirety and replaced
with the following paragraphs:
(a) Either party may terminate this Agreement without cause on
or after January 31, 1998 by giving 180 days written notice to the other party;
(b) Either party may terminate this Agreement if the other
party has materially breached the Agreement by giving the defaulting party 30
days written notice and the defaulting party has failed to cure the breach
within 60 days thereafter; and
(c) Any written notice of termination shall specify the date
of termination. The Fund shall provide notice of the successor transfer agent
within 30 days of the termination date. Upon termination, the Transfer Agent
will deliver to such successor a certified list of shareholders of the Fund
(with names, addresses and taxpayer identification of Social Security numbers
and such other federal tax information as the Transfer Agent may be required to
maintain), an historical record of the account of each shareholder and the
status thereof, and all other relevant books, records, correspondence, and other
data established or maintained by the books, records, correspondence, and other
data established or maintained by the Transfer Agent under this Agreement in the
form reasonably acceptable to the Fund, and will cooperate in the transfer of
such duties and responsibilities, including provisions for assistance from the
Transfer Agent's personnel in the establishment of books, records and other data
by such successor or successors. The Transfer Agent shall be entitled to its
out-of-pocket expenses set forth in Schedule B incurred in the delivery of such
records net of the fees owed to the Transfer Agent for the last month of service
if this Agreement is terminated pursuant to paragraph (b) immediately above.
7. The following paragraph is added to Section 15 of the
Agreement:
The Fund and the Transfer Agent agree to renegotiate the terms
of this Agreement if an independent party acceptable to both
parties, after notice to and a hearing with both Fund
management and representatives of the Transfer Agent,
determines that the performance of the Transfer Agent has been
adverse to the interests of the Fund shareholders and if such
negotiations do not result in a mutually acceptable amendment
then the Fund may terminate this Agreement on 60 days written
notice.
8. The following sentence shall be added at the end of Section 17
of the Agreements:
Notwithstanding the foregoing, any reference to the Transfer
Agent shall include a statement to the effect that it is a
wholly owned subsidiary of First Data Corporation.
9. The name and address of the transfer agent in Section 21(a)
of the Agreements shall be deleted and replaced with the following:
The Shareholder Services Group, Inc.
One Exchange Place
53 State Street
Boston, Massachusetts 02109
Attention: Robert F. Radin, President
with a copy to TSSG Counsel
10. Section 21(b) of the Agreements shall be deleted in its
entirety and replaced with the following:
(b) This Agreement shall extend to and shall be binding upon
the parties hereto, and their respective successors and
assigns; provided, however, that any assignment of this
Agreement to an entity shall require the written consent of
the other party.
11. The following paragraphs shall be added to Schedule A of the
Agreements:
For all funds serviced by Eaton Vance Management for which the
Transfer Agent commences service as transfer agent after
February 1, 1993 (the "New Funds"), the Transfer Agent shall
waive per account fees for the initial 90 days of service.
After the initial 90 days, New Funds that impose a 12b-1 Trail
Commission or service fee shall pay the Transfer Agent a
monthly fee based on month-end net assets at an annual rate of
8 basis points. After the initial 90 days, New funds that do
not impose a 12b-1 Trail Commission or service fee shall pay
the Transfer Agent a monthly fee based on month-end net assets
at an annual rate of 7 basis points.
If a New Fund's net assets exceed $250 million for a calendar
month, the fees due the Transfer Agent for that month shall be
reduced by one-twelfth of one basis point, for those assets in
excess on that breakpoint.
If a New Fund's net assets exceed $500 million for a calendar
month, the fees due the Transfer Agent for that month shall be
reduced by one-twelfth of two basis points, for those assets
in excess of that breakpoint. If a New Fund's net assets
exceed $750 million for a calendar month, the fees due the
Transfer Agent for that month shall be reduced by one-twelfth
of three basis points, for those assets in excess of that
breakpoint. If a New Fund's net assets exceed $1 billion for a
calendar month, the fees due the Transfer Agent for that month
shall be reduced by one-twelfth of four basis points, for
those assets in excess of that breakpoint. In addition to
these breakpoints, if Eaton Vance National Municipals Trust's
net assets exceed $1.5 Billion for a calendar month, the fees
due the Transfer Agent for the month shall be reduced by
one-twelfth of four basis points, for those assets in excess
of that breakpoint. If Eaton Vance National Municipals Trust's
net assets exceed $2 Billion for a calendar month, the fees
due the Transfer Agent for the month shall be reduced by
one-twelfth of three basis points, for those assets in excess
of that breakpoint. No other breakpoints in fees shall apply.
12. Schedule B of the Transfer Agency Agreements is deleted and
replaced by Schedule B attached hereto.
13. Schedule E, attached hereto, will be added to the Agreements.
14. This Amendment contains the entire understanding among the parties
with respect to the transactions contemplated hereby. To the extent that any
provision of this amendment modifies or is otherwise inconsistent with any
provision of the Agreement and related agreements, this Amendment shall control,
but the Agreement and all related documents shall otherwise remain in full force
and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their duly authorized officers, as of the day and year first above
written.
EATON VANCE MUNICIPALS TRUST
EATON VANCE INVESTMENT TRUST
EATON VANCE LIQUID ASSETS TRUST
EATON VANCE HIGH INCOME TRUST
EATON VANCE NATURAL RESOURCES TRUST
EATON VANCE EQUITY-INCOME TRUST
THE EXCHANGE FUND OF BOSTON, INC.
SECOND FIDUCIARY EXCHANGE FUND, INC.
FIDUCIARY EXCHANGE FUND, INC.
DEPOSITORS FUND OF BOSTON, INC.
CAPITAL EXCHANGE FUND, INC.
VANCE SANDERS EXCHANGE FUND, L.P.
DIVERSIFICATION FUND, INC.
EATON VANCE MUNICIPAL BOND FUND L.P.
EATON VANCE INVESTORS FUND
EATON VANCE GROWTH TRUST
EATON VANCE STOCK FUND
EATON VANCE SPECIAL INVESTMENT TRUST
EATON VANCE CASH MANAGEMENT FUND
EATON VANCE TAX FREE RESERVES
EATON VANCE GOVERNMENT OBLIGATIONS TRUST
EATON VANCE TOTAL RETURN TRUST
EATON VANCE INCOME FUND OF BOSTON
EATON VANCE PRIME RATE RESERVES
EATON VANCE SHORT-TERM GLOBAL INCOME FUND, INC.
By: /s/ Barry Rowland Jr.
-----------------------------------
Title: V.P. Eaton Vance Management
-----------------------------------
/s/ James L. O'Connor Treasurer
-----------------------------
THE SHAREHOLDER SERVICES GROUP, INC.
By:/s/ Jack P. Kutner
-----------------------------------
Title: EVP-COO
-----------------------------------
<PAGE>
B-1
Schedule B
OUT-OF-POCKET EXPENSES
The Fund shall reimburse the Transfer Agent monthly for applicable
out-of-pocket expenses, including, but not limited to the following items:
- Microfiche/microfilm production
- Magnetic media tapes and freight
- Stock costs, including certificates, envelopes, checks, stationery,
confirmations and statements
- Postage (bulk, pre-sort, ZIP+4, barcoding, first class) direct pass
through to the Fund
- Due diligence mailings - Telephone and telecommunications costs,
including all lease, maintenance and line costs
- Proxy solicitations, mailings and tabulations - Daily &
Distribution advice mailings
- Shipping, Certified and Overnight mail and insurance
- Year-end form production and mailings
- Terminals, communication lines, printers and other equipment and
any expenses incurred in connection with such terminals and lines
as pre-approved by the Fund
- Duplicating services, as pre-approved by the Fund
- Courier services
- Banking charges, including without limitation incoming @ $6.00 and
outgoing wire charges @ $8.00 per wire
- Federal Reserve charges for check clearance
- Record retention, retrieval and destruction costs, including, but
not limited to exit fees charged by third party record keeping
vendors
- The Transfer Agent shall provide the Funds with an aggregate credit
of 1,000 system programming hours at no cost during each calendar
year.
- Certificate Insurance
<PAGE>
B-2
The Fund agrees that postage and mailing expenses will be paid on the
day of or prior to mailing. In addition, the Fund will promptly reimburse the
Transfer Agent for any other unscheduled expenses incurred by the Transfer Agent
whenever the Fund and the Transfer Agent mutually agree that such expenses are
not otherwise properly borne by the Transfer Agent as part of its duties and
obligations under the Agreement.
<PAGE>
E-1
Schedule E
Transfer Agent Performance Standards
1. SCOPE
The Transfer Agent agrees to meet or exceed the processing standards set forth
in this schedule for those items received by the Transfer Agent in the proper
condition, form and order to permit the Transfer Agent to process the item
within the requirements of this Agreement.
"Turnaround", for the purposes of the Schedule, shall be tracked by the Transfer
Agent and shall consist of the date the Transfer Agent receives the item in good
order ("R") and such additional business days (e.g. R=1, R=2) as designated. For
the purpose of this Schedule, "business days" shall be the calendar days on
which the New York Stock Exchange is opened and such other days as agreed to in
writing by the Transfer Agent and the Fund. The Transfer Agent shall track the
processing of items on a calendar month basis and shall report to the Fund the
percentage of the total number of items received and the percentage of items
that were processed within the specific Turnaround period by the 20th of the
following month.
The Transfer Agent shall also track the number of Funds shareholders who contact
the Transfer Agent to complain that their transactions were not processed
correctly. The Transfer Agent shall report to the Funds, on a monthly basis, no
later than the 20th of the following month, the transactions and the total
number of shareholder complaints received by the Transfer Agent from Funds
shareholders, which arose solely from processing errors by the Transfer Agent.
With respect to these turnaround and error standards, the Transfer Agent shall
be responsible for its own conduct only and shall not be held responsible for
delays and other problems arising from the actions or omissions of the Fund,
other agents of the Fund or third parties not affiliated with the Transfer
Agent. In addition, the Fund agrees that these performance standards shall be
waived for any calendar month in which the processing exceeds by more than 20%
the average monthly number of items received by the Transfer Agent during the
six month period prior to that calendar month.
2. CORRECTIVE ACTION
If performance standards are not met for any type of transaction for a given
monthly period, the Transfer Agent shall report to the Fund by the 20th of the
following month the reason for the deficiency and the corrective action being
taken by the Transfer Agent.
The Fund may terminate this Agreement if either: (i) One quarter or more of the
performance standards listed in this Schedule are not met by the Transfer Agent
for four consecutive months, or (ii) any one performance standard is not met by
the Transfer Agent for any six months during a 12 month period. Unless the Fund
provides the Transfer Agent with notice of the Fund's intent to exercise this
option within 60 days of the occurrence, the Fund shall have waived its option
to terminate under this provision. Termination is not the sole remedy of the
Fund for failure to meet the performance standards.
3. PERFORMANCE STANDARDS
The Transfer Agent will use a statistical sampling defined below as a percentage
of transactions processed through the transaction processing and quality control
units of the Transfer Agent providing services to the Fund and will track and
report to the Fund on the accuracy of the transactions processed. Examining the
sampling against predetermined Transfer Agent criteria for accuracy, the
Transfer Agent will provide an accuracy rate as represented by "percent",
measured to the last Friday of each month from the last Friday of the previous
month. The Fund reserves the right to inspect, or have a third party inspect,
the Quality Assurance procedures and documentation and all documents reviewed
and considered in determining the accuracy of processing.
<TABLE>
I. Transaction Processing
<CAPTION>
Turnaround QA Statistical Accuracy
R R+1-R+7 Sampling % Standard
---------- -------------- --------
<S> <C> <C> <C>
A1. New Accounts 15%
- Purchases R 98%
- Exchanges R 98%
- Transfer R+3 98%
B. Purchases 5%
- Directs (Money Market Funds) R+1 98%
- Directs (All Other Funds R 98%
- Wire Orders (Placement) R 98%
- Wire Orders (Settlement) R+1 98%
C. Redemptions 10%
- Direct R 98%
- Wire Orders R 98%
D. Exchanges R 5-10% 98%
E. Transfers R+3 10% 98%
F. Adjustments 10%
- Priority R+1 98%
- Non-Priority R+4 98%
- OCF Cancel/Rebill R+1 98%
II. Shareholder Services
Turnaround QA Statistical Accuracy
R R+1-R+7 Sampling % Standard
---------- -------------- --------
A. Research 5%
- Priority R+2 95%
- Non-Priority R+4 95%
- Transcripts R+9 95%
B. Telephone Responsiveness R 2% 98%
(excluding calls abandoned
within 20 seconds)
C. Correspondence 10%
- Priority (Financial) R+3 98%
- Non Priority (Other) R+5 98%
III. Administration
Turnaround QA Statistical Accuracy
R R+1-R+7 Sampling % Standard
---------- -------------- --------
A. Duplicate Confirmation R+2 2% 98%
Mailed
B. Certificates Mailed R+3 10%
98%
C. Daily Checks Mailed R+1 5% 98%
(includes redemptions, SWP's
and replacements)
D. Periodic Checks Mailed R+2 Client 98%
Specific
Sampling
</TABLE>
IV. Data Center Services
A. Response Time
An average of 98% of all CICS entries on Business Days from 8:00 p.m. EST
("Business Hours") during a calendar month will have a response time of three
(3) seconds or less.
An average of 98% of all CICS entries during Business hours in a calendar month
will have a response item of five (5) seconds or less.
B. On-Line Systems Availability
The On-Line System will be available for inquiry and data entry at least 96% of
the time during Business Day and from 8:00 a.m. to 8:00 p.m. EST (Business
Hours), measured on a calendar month basis.
V. Quality Assurance
TSSG will use a statistical sampling defined categorically in Section I-III of
transaction processed through the transaction processing and the quality control
units of TSSG providing services to the Funds and will track and report to the
Funds on the accuracy of the transaction processed. Examining the sampling
against pre-determined TSSG criteria for accuracy, TSSG will provide a 98%
accuracy rate, measured monthly by their independent Quality Assurance
Department and reported to the Fund by the 20th of the following month.
<PAGE>
EXHIBIT 11
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the inclusion in Post-Effective Amendment No. 59 to the
Registration Statement on Form N-1A (1933 Act File Number 2-22019) of Eaton
Vance Growth Trust: EV Marathon Gold & Natural Resources Fund (the "Fund") of
our report dated November 2, 1994 on our audit of the financial statements and
financial highlights of the Fund, which report is included in the Annual
Report to Shareholders for the year ended September 30, 1994, which is also
included in this Registration Statement.
We also consent to the reference to our Firm under the caption "The Fund's
Financial Highlights" in the Prospectus and under the caption "Independent
Certified Public Accountants" in the Statement of Additional Information of
the Registration Statement.
/s/ DELOITTE & TOUCHE LLP
----------------------------------
DELOITTE & TOUCHE LLP
Boston, Massachusetts
August 16, 1995
<PAGE>
EXHIBIT 99.15(a)
EATON VANCE GROWTH TRUST
SERVICE PLAN
ON BEHALF OF
EATON VANCE GROWTH FUND
WHEREAS, Eaton Vance Growth Trust (the "Trust") engages in business as
an open-end management investment company and is registered as such under the
Investment Company Act of 1940, as amended (the "Act");
WHEREAS, the Trust adopted a distribution plan dated August 30, 1989
(the "Original Plan"), on behalf of its series, Eaton Vance Growth Fund (the
"Fund"), pursuant to which the Fund has made payments in connection with the
distribution of shares of the Fund;
WHEREAS, the Trust desires to adopt a Service Plan pursuant to which
the Fund intends to pay service fees as contemplated in subsections (b) and (d)
of Section 26 of Article III of the Rules of Fair Practice of the National
Association of Securities Dealers, Inc. (the "NASD Rules");
WHEREAS, the Trust employs Eaton Vance Distributors, Inc. to act as
Principal Underwriter (as defined in the Act) of its shares;
WHEREAS, the Trustees of the Trust have determined that it is desirable
to amend and replace the Original Plan with this Service Plan; and
WHEREAS, the Trustees of the Trust have determined that there is a
reasonable likelihood that adoption of this Service Plan will benefit the Fund
and its shareholders.
NOW, THEREFORE, the Trust hereby adopts this Service Plan (the "Plan")
in accordance with Rule 12b-1 under the Act and containing the following terms
and conditions:
1. The Fund may make payments of service fees to the Principal
Underwriter, Authorized Firms and other persons. The aggregate of such payments
during any fiscal year of the Fund shall not exceed .25% of the Fund's average
daily net assets for such year. Appropriate adjustment of service fee payments
shall be made whenever necessary to ensure that no such payment shall cause the
Fund to exceed the applicable maximum cap imposed thereon by paragraph (5) of
subsection (d) of Section 26 of Article III of the NASD Rules.
2. This Plan shall not take effect until after it has been approved by
both a majority of (i) those Trustees of the Trust who are not "interested
persons" of the Trust (as defined in the Act) and have no direct or indirect
financial interest in the operations of this Plan or any agreements related to
it (the "Rule 12b-1 Trustees"), and (ii) all of the Trustees then in office,
cast in person at a meeting (or meetings) called for the purpose of voting on
this Plan.
3. Any agreements between the Trust on behalf of the Fund and any
person relating to this Plan shall be in writing and shall not take effect until
approved in the manner provided for Trustee approval of this Plan in Section 2.
4. This Plan shall continue in effect through and including April 28,
1994 and shall continue indefinitely thereafter, but only so long as such
continuance after April 28, 1994 is specifically approved at least annually in
the manner provided for Trustee approval of this Plan in Section 2.
5. The persons authorized to direct the disposition of monies paid or
payable by the Trust pursuant to this Plan or any related agreement made by the
Trust on behalf of Fund shall be the President or any Vice President of the
Trust. One or more of such persons shall provide to the Trustees of the Trust
and the Trustees shall review, at least quarterly, a written report of the
amounts so expended and the purposes for which such expenditures were made.
6. This Plan may be terminated at any time by vote of a majority of the
Rule 12b-1 Trustees, or by vote of a majority of the outstanding voting
securities of the Fund.
7. This Plan may not be amended to increase materially the payments to
be made by the Fund as provided in Section 1 unless such amendment, if required
by law, is approved by a vote of at least a majority of the outstanding voting
securities of the Fund. In addition, all material amendments to this Plan shall
be approved in the manner provided for in Section 2.
8. While this Plan is in effect, the selection and nomination of the
Rule 12b-1 Trustees shall be committed to the discretion of the Rule 12b-1
Trustees.
9. The Trust shall preserve copies of this Plan and any related
agreements made by the Trust on behalf of the Fund and all reports made pursuant
to Section 5, for a period of not less than six years from the date of this
Plan, or of the agreements or of such report, as the case may be, the first two
years in an easily accessible place.
10. Consistent with the limitation of shareholder, officer and Trustee
liability as set forth in the Trust's Declaration of Trust, any obligations
assumed by the Fund pursuant to this Plan shall be limited in all cases to the
assets of the Fund and no person shall seek satisfaction thereof from the
shareholders of the Fund or officers or Trustees of the Trust.
11. When used in this Plan, the term "service fees" shall have the same
meaning as such term has in subsections (b) and (d) of Section 26 of Article III
of the NASD Rules. When used in this Plan, the term "vote of a majority of the
outstanding voting securities" shall mean the vote of the lesser of (a) 67 per
centum or more of the shares of the Fund present or represented by proxy at the
meeting if the holders of more than 50 per centum of the outstanding shares of
the Fund are present or represented by proxy at the meeting, or (b) more than 50
per centum of the outstanding shares of the Fund.
12. If any provision of this Plan shall be held or made invalid by a
court decision, statute, rule or regulation of the Securities and Exchange
Commission or otherwise, the remainder of this Plan shall not be affected
thereby.
13. This Plan shall amend, replace and be substituted for the Original
Plan as of the opening of business on July 7, 1993, and this Plan shall be
effective as of such time.
IN WITNESS WHEREOF, the Trust has executed this Service Plan on the 7th
day of July, 1993.
EATON VANCE GROWTH TRUST
(on behalf of EATON VANCE GROWTH FUND)
By: /s/ James B. Hawkes
----------------------------------
Attest: President
/s/ Thomas Otis
----------------------------------
Secretary
<PAGE>
EXHIBIT 99.15(b)
DISTRIBUTION PLAN
OF
EATON VANCE GROWTH TRUST
ON BEHALF OF
EATON VANCE GREATER CHINA GROWTH FUND
WHEREAS, Eaton Vance Growth Trust (the "Trust") engages in business as
an open-end management investment company and is registered as such under the
Investment Company Act of 1940, as amended (the "Act");
WHEREAS, the Trust desires to adopt a separate Distribution Plan
pursuant to Rule 12b-1 under the Act on behalf of the Eaton Vance Greater China
Growth Fund (the "Fund");
WHEREAS, the Fund intends to finance activities which are primarily
intended to result in the distribution and sale of its shares of beneficial
interest and to make payments in connection with the distribution of its shares;
WHEREAS, the Trust intends to employ Eaton Vance Distributors, Inc., to
act as Principal Underwriter (as defined in the Act) of the Fund's shares;
WHEREAS, the Fund intends to compensate the Principal Underwriter for
its distribution services to the Fund by paying the Principal Underwriter
monthly distribution fees in connection with the sale of shares of the Fund;
WHEREAS, the Fund intends to pay quarterly service fees (as
contemplated in subsections (b) and (d) of section 26 of Article III of the
Rules of Fair Practice of the National Association of Securities Dealers, Inc.)
to the Principal Underwriter (from which the Principal Underwriter may pay
service fees to Authorized Firms and other third parties based on the amount of
Fund shares sold through them and remaining outstanding for specified periods of
time);
WHEREAS, such service fees will compensate the Principal Underwriter,
Authorized Firms and other third parties for providing personal services and/or
the maintenance of shareholder accounts;
WHEREAS, the Trustees of the Trust have determined that there is a
reasonable likelihood that adoption of this Distribution Plan will benefit the
Fund and its shareholders.
NOW, THEREFORE, the Trust hereby adopts this Distribution Plan (the
"Plan") on behalf of the Fund in accordance with Rule 12b-1 under the Act and
containing the following terms and conditions:
1. The Principal Underwriter will provide the Fund with such
distribution services and facilities as the Fund may from time to time consider
necessary to enhance the sale of shares of the Fund, and the Principal
Underwriter shall pay such compensation to Authorized Firms and other third
parties as it considers appropriate to encourage distribution of such shares.
The Principal Underwriter will also provide such personal and account
maintenance services as the Fund may from time to time consider necessary to
enhance the provision of personal services and/or the maintenance of shareholder
accounts, and the Principal Underwriter may pay such service fees to Authorized
Firms and other third parties as it considers appropriate to encourage the
provision of personal services and/or the maintenance of shareholder accounts.
2. The Fund shall pay a monthly distribution fee to the Principal
Underwriter on the last day of each month. Such distribution fee shall be in an
amount equal on an annual basis to the aggregate of (a) .50% of that portion of
the Fund's average daily net assets for any fiscal year which is attributable to
shares of the Fund which have remained outstanding for less than one year and
(b) .25% of that portion of the Fund's average daily net assets for any fiscal
year which is attributable to shares of the Fund which have remained outstanding
for more than one year. For the purposes of this Plan, daily net assets of the
Fund shall be computed in accordance with the governing documents of the Fund
and applicable votes and determinations of the Trustees of the Trust. All
distribution fees are being paid in consideration for the distribution services
and facilities to be furnished to the Fund hereunder by the Principal
Underwriter.
3. Appropriate adjustment of payments made pursuant to Section 2 of
this Plan shall be made whenever necessary to ensure that no such payment shall
cause the Fund to exceed the applicable maximum cap imposed on asset-based,
front-end and deferred sales charges by subsection (d) of section 26 of Article
III of the Rules of Fair Practice of the National Association of Securities
Dealers, Inc.
4. In addition to the payments of distribution fees to the Principal
Underwriter provided for in Section 2, the Fund shall pay a quarterly service
fee to the Principal Underwriter on the last day of each calendar quarter of the
Fund. Such service fee shall be in an amount equal on an annual basis to .25% of
that portion of the Fund's average daily net assets for any fiscal year which is
attributable to shares of the Fund which have remained outstanding for more than
one year. All service fees are being paid to the Principal Underwriter hereunder
in consideration for the personal and account maintenance services to be
furnished by the Principal Underwriter and for the payment of service fees by
the Principal Underwriter to Authorized Firms and other third parties in
connection with the provision of personal services and/or the maintenance of
shareholder accounts.
5. This Plan shall not take effect until it has been approved by (a) a
vote of at least a majority of the outstanding voting securities of the Fund and
(b) both a majority of (i) those Trustees of the Trust who are not "interested
persons" of the Trust or the Fund (as defined in the Act) and have no direct or
indirect financial interest in the operation of the Plan or any agreements
related to it (the "Rule 12b-1 Trustees") and (ii) all of the Trustees then in
office, cast in person at a meeting (or meetings) called for the purpose of
voting on this Plan.
The term "vote of a majority of the outstanding voting securities of
the Fund" shall mean the vote of the lesser (a) 67 per centum or more of the
shares of the Fund present or represented by proxy at the meeting if the holders
of more than 50 per centum of the outstanding shares of the Fund are present or
represented by proxy at the meeting, or (b) more than 50 per centum of the
outstanding shares of the Fund.
6. Any agreements between the Fund and any person relating to this Plan
shall be in writing and shall not take effect until approved in the manner
provided for in clause (b) of the first paragraph of Section 5.
7. This Plan shall continue in effect through and including April 28,
1993 and shall continue indefinitely thereafter, but only for so long as such
continuance after April 28, 1993 is specifically approved at least annually in
the manner provided for approval of this Plan in clause (b) of the first
paragraph of Section 5.
8. The persons authorized to direct the disposition of monies paid or
payable by the Fund pursuant to this Plan or any related agreement made by the
Fund shall be the President or any Vice President of the Trust. Such persons
shall provide to the Trust's Board of Trustees and the Board of Trustees shall
review, at least quarterly, a written report of the amounts so expended and the
purposes for which such expenditures were made.
9. This Plan may be terminated at any time by vote of a majority of the
Rule 12b-1 Trustees, or by vote of a majority of the outstanding voting
securities of the Fund.
10. This Plan may not be amended to increase materially the payments to
be made by the Fund as provided in Sections 2, 3 and 4 unless such amendment is
approved in the manner provided for initial approval of the Plan in Section 5,
and all material amendments to this Plan shall be approved in the manner
provided for in clause (b) of the first paragraph of Section 5.
11. While this Plan is in effect, the selection and nomination of the
Rule 12b-1 Trustees shall be committed to the discretion of the Rule 12b-1
Trustees.
12. The Fund shall preserve copies of this Plan and any related
agreements made by the Fund and all reports made pursuant to Section 8, for a
period of not less than six years from the date of this Plan, or of the
agreements or of such report, as the case may be, the first two years in an
easily accessible place.
13. As used in this Plan, the term "service fees" shall have the same
meaning as such term is used in subsections (b) and (d) of section 26 of Article
III of the Rules of Fair Practice of the National Association of Securities
Dealers, Inc.
14. If any provision of this Plan shall be held or made invalid by a
court decision, statute, rule or regulation of the Securities and Exchange
Commission or otherwise, the remainder of this Plan shall not be affected
thereby.
IN WITNESS WHEREOF, the Trust has executed this Distribution Plan on
behalf of the Fund on the 27th day of October, 1992.
EATON VANCE GROWTH TRUST
(on behalf of EATON VANCE
GREATER CHINA GROWTH FUND)
BY /s/ James B. Hawkes
-----------------------
President
Attest:
/s/ Thomas Otis
-----------------------
Secretary
<PAGE>
EXHIBIT 99.15(c)
DISTRIBUTION PLAN
OF
EATON VANCE GROWTH TRUST
ON BEHALF OF
EV MARATHON GREATER CHINA GROWTH FUND
WHEREAS, Eaton Vance Growth Trust (the "Trust") engages in business as
an open-end investment company with multiple series and is registered as such
under the Investment Company Act of 1940, as amended (the "Act");
WHEREAS, the Trust desires to adopt a separate Distribution Plan on
behalf of its series, EV Marathon Greater China Growth Fund (the "Fund"),
pursuant to which the Fund will make payments in connection with the
distribution of shares of the Fund;
WHEREAS, the Trust employs Eaton Vance Distributors, Inc. to act as
Principal Underwriter (as defined in the Act) of shares of the Fund, but does
not intend to remunerate the Principal Underwriter unless and until the
Principal Underwriter sells shares of the Fund;
WHEREAS, the Fund will pay the Principal Underwriter sales commissions
and distribution fees only in connection with the sale of shares of the Fund;
WHEREAS, the Fund intends to pay service fees as contemplated in
subsections (b) and (d) of Section 26 of Article III of the Rules of Fair
Practice of the National Association of Securities Dealers, Inc. (the "NASD
Rules"); and
WHEREAS, the Trustees of the Trust have determined that there is a
reasonable likelihood that adoption of this Distribution Plan will benefit the
Fund and its shareholders.
NOW, THEREFORE, the Trust hereby adopts this Distribution Plan (this
"Plan") on behalf of the Fund in accordance with Rule 12b-1 under the Act and
containing the following terms and conditions:
1. The Fund will pay sales commissions and distribution fees to the
Principal Underwriter only after and as a result of the sales of shares of the
Fund. The Principal Underwriter will provide the Fund with such distribution
services and facilities as the Trust may from time to time consider necessary to
accomplish the sale of shares of the Fund. It is understood that the Principal
Underwriter may pay such sales commissions and make such other payments to
Authorized Firms and other persons as it considers appropriate to encourage
distribution of such shares.
2. On each sale of Fund shares (excluding reinvestment of dividends and
distributions), the Fund shall pay the Principal Underwriter a sales commission
in an amount not exceeding 5% of the price received by the Fund therefor, such
payment to be made in the manner set forth and subject to the terms of this
Plan. The amount of the sales commission shall be established from time to time
by vote or other action of a majority of (i) those Trustees of the Trust who are
not "interested persons" (as defined in the Act) of the Trust and have no direct
or indirect financial interest in the operation of this Plan or any agreements
related to it (the "Rule 12b-1 Trustees") and (ii) all of the Trustees then in
office. The Fund shall also pay the Principal Underwriter a separate
distribution fee (calculated in accordance with Section 3), such payment to be
made in the manner set forth and subject to the terms of this Plan.
3. The sales commissions and distribution fees referred to in Section 2
shall be accrued and paid by the Fund in the following manner. The Fund shall
accrue daily an amount calculated at the rate of .75% per annum of the daily net
assets of the Fund, which net assets shall be computed in accordance with the
governing documents of the Trust and applicable votes and determinations of the
Trustees of the Trust. The daily amounts so accrued throughout the month shall
be paid to the Principal Underwriter on the last day of each month. The amount
of such daily accrual, as so calculated, shall first be applied and charged to
all unpaid sales commissions, and the balance, if any, shall then be applied and
charged to all unpaid distribution fees. No amount shall be accrued with respect
to any day on which there exist no outstanding uncovered distribution charges of
the Principal Underwriter. The amount of such uncovered distribution charges
shall be calculated daily. For purposes of this calculation, distribution
charges of the Principal Underwriter shall include (a) the aggregate of all
sales commissions which the Principal Underwriter has been paid pursuant to this
Section 3 plus all sales commissions which it is entitled to be paid pursuant to
Section 2 since inception of this Plan through and including the day next
preceding the date of calculation, and (b) an amount equal to the aggregate of
all distribution fees referred to below which the Principal Underwriter has been
paid pursuant to this Section 3 plus all such fees which it is entitled to be
paid pursuant to Section 2 since inception of this Plan through and including
the day next preceding the date of calculation. From this sum (distribution
charges) there shall be subtracted (i) the aggregate amount paid or payable to
the Principal Underwriter pursuant to this Section 3 since inception of this
Plan through and including the day next preceding the date of calculation, (ii)
the aggregate amount of all contingent deferred sales charges paid or payable to
the Principal Underwriter since inception of this Plan through and including the
day next preceding the date of calculation, and (iii) the aggregate of all
amounts paid or payable to the Principal Underwriter (or any affiliate thereof)
by any party other than the Fund with respect to the sale of shares of the Fund
since inception of this Plan through and including the day next preceding the
date of calculation. If the result of such subtraction is a positive amount, a
distribution fee [computed at the rate of 1% per annum above the prime rate
(being the base rate on corporate loans posted by at least 75% of the nation's
30 largest banks) then being reported in the Eastern Edition of The Wall Street
Journal or if such prime rate is not so reported such other rate as may be
designated from time to time by vote or other action of a majority of (i) the
Rule 12b-1 Trustees and (ii) all of the Trustees then in office] shall be
computed on such amount and added to such amount, with the resulting sum
constituting the amount of outstanding uncovered distribution charges of the
Principal Underwriter with respect to such day for all purposes of this Plan. If
the result of such subtraction is a negative amount, there shall exist no
outstanding uncovered distribution charges of the Principal Underwriter with
respect to such day and no amount shall be accrued or paid to the Principal
Underwriter with respect to such day. The aggregate amounts accrued and paid
pursuant to this Section 3 during any fiscal year of the Fund shall not exceed
.75% of the average daily net assets of the Fund for such year.
4. The Principal Underwriter shall be entitled to receive all
contingent deferred sales charges paid or payable with respect to any day on
which there exist outstanding uncovered distribution charges of the Principal
Underwriter. The Fund shall be entitled to receive all remaining contingent
deferred sales charges paid or payable by shareholders with respect to any day
on which there exist no outstanding uncovered distribution charges of the
Principal Underwriter, provided that no such sales charge which would cause the
Fund to exceed the maximum applicable cap imposed thereon by paragraph (2) of
subsection (d) of Section 26 of Article III of the NASD Rules shall be imposed.
5. The Fund may make payments of service fees to the Principal
Underwriter, Authorized Firms and other persons. The aggregate of such payments
during any fiscal year of the Fund shall not exceed .25% of the Fund's average
daily net assets for such year. Appropriate adjustment of service fee payments
shall be made whenever necessary to ensure that no such payment shall cause the
Fund to exceed the applicable maximum cap imposed thereon by paragraph (5) of
subsection (d) of Section 26 of Article III of the NASD Rules.
6. This Plan shall not take effect until after it has been approved by
both a majority of (i) the Rule 12b-1 Trustees and (ii) all of the Trustees then
in office, cast in person at a meeting (or meetings) called for the purpose of
voting on this Plan.
7. Any agreements between the Trust on behalf of the Fund and any
person relating to this Plan shall be in writing and shall not take effect until
approved in the manner provided for Trustee approval of this Plan in Section 6.
8. This Plan shall continue in effect through and including April 28,
1994 and shall continue indefinitely thereafter, but only so long as such
continuance after April 28, 1994 is specifically approved at least annually in
the manner provided for Trustee approval of this Plan in Section 6.
9. The persons authorized to direct the disposition of monies paid or
payable by the Fund pursuant to this Plan or any related agreement made on
behalf of the Fund shall be the President or any Vice President of the Trust.
Such persons shall provide to the Trustees of the Trust and the Trustees shall
review, at least quarterly, a written report of the amounts so expended and the
purposes for which such expenditures were made.
10. This Plan may be terminated at any time by vote of a majority of
the Rule 12b-1 Trustees, or by vote of a majority of the outstanding voting
securities of the Fund. The Principal Underwriter shall also be entitled to
receive all contingent deferred sales charges paid or payable with respect to
any day subsequent to termination of this Plan on which there exist outstanding
uncovered distribution charges of the Principal Underwriter.
11. This Plan may not be amended to increase materially the payments to
be made by the Fund as provided in Sections 2, 3 and 5 unless such amendment is
approved by a vote of at least a majority of the outstanding voting securities
of the Fund. In addition, all material amendments to this Plan shall be approved
in the manner provided for Trustee approval of this Plan in Section 6.
12. While this Plan is in effect, the selection and nomination of the
Rule 12b-1 Trustees shall be committed to the discretion of the Rule 12b-1
Trustees.
13. The Trust shall preserve copies of this Plan and any related
agreements made by the Trust on behalf of the Fund and all reports made pursuant
to Section 9, for a period of not less than six years from the date of this
Plan, or of the agreements or of such report, as the case may be, the first two
years in an easily accessible place.
14. Consistent with the limitation of shareholder, officer and Trustee
liability as set forth in the Trust's Declaration of Trust, any obligations
assumed by the Fund pursuant to this Plan shall be limited in all cases to the
assets of the Fund and no person shall seek satisfaction thereof from the
shareholders of the Trust, officers or Trustees of the Trust or any other series
of the Trust.
15. This Plan shall, prior to the initial accrual or payment of any
amount hereunder, be approved by a vote of at least a majority of the
outstanding voting securities of the Fund.
16. When used in this Plan, the term "service fees" shall have the same
meaning as such term has in subsections (b) and (d) of Section 26 of Article III
of the NASD Rules. When used in this Plan, the term "vote of a majority of the
outstanding voting securities of the Fund" shall mean the vote of the lesser of
(a) 67 per centum or more of the shares of the Fund present or represented by
proxy at the meeting if the holders of more than 50 per centum of the
outstanding shares of the Fund are present or represented by proxy at the
meeting, or (b) more than 50 per centum of the outstanding shares of the Fund.
17. If any provision of this Plan shall be held or made invalid by a
court decision, statute, rule or regulation of the Securities and Exchange
Commission or otherwise, the remainder of this Plan shall not be affected
thereby.
IN WITNESS WHEREOF, the Trust has executed this Plan on behalf of the
Fund on the 7th day of June, 1993.
EATON VANCE GROWTH TRUST
(on behalf of EV MARATHON GREATER
CHINA GROWTH FUND)
BY /s/ James B. Hawkes
------------------------------
President
Attest:
/s/ Thomas Otis
------------------------------
Secretary
<PAGE>
EXHIBIT 99.15(d)
EATON VANCE GROWTH TRUST
AMENDED DISTRIBUTION PLAN
ON BEHALF OF
EV CLASSIC GREATER CHINA GROWTH FUND
WHEREAS, Eaton Vance Growth Trust (the "Trust") engages in business as
an open-end investment company with multiple series and is registered as such
under the Investment Company Act of 1940, as amended (the "Act");
WHEREAS, the Trust adopted a separate Distribution Plan (the "Original
Plan") on behalf of its series, EV Classic Greater China Growth Fund (the
"Fund"), pursuant to which the Fund has made payments in connection with the
distribution of shares of the Fund;
WHEREAS, the Trust employs Eaton Vance Distributors, Inc. to act as
Principal Underwriter (as defined in the Act) of shares of the Fund, but does
not intend to remunerate the Principal Underwriter unless and until the
Principal Underwriter sells shares of the Fund;
WHEREAS, the Fund will pay the Principal Underwriter sales commissions
and distribution fees only in connection with the sale of shares of the Fund;
WHEREAS, the Fund intends to pay service fees as contemplated in
subsections (b) and (d) of Section 26 of Article III of the Rules of Fair
Practice of the National Association of Securities Dealers, Inc. (the "NASD
Rules");
WHEREAS, the Trustees of the Trust have determined that it is desirable
to amend and replace the Original Plan with this Amended Distribution Plan; and
WHEREAS, the Trustees of the Trust have determined that there is a
reasonable likelihood that adoption of this Amended Distribution Plan will
benefit the Fund and its shareholders.
NOW, THEREFORE, the Trust hereby adopts this Amended Distribution Plan
(this "Plan") on behalf of the Fund in accordance with Rule 12b-1 under the Act
and containing the following terms and conditions:
1. The Fund will pay sales commissions and distribution fees to the
Principal Underwriter only after and as a result of the sales of shares of the
Fund. The Principal Underwriter will provide the Fund with such distribution
services and facilities as the Trust may from time to time consider necessary to
accomplish the sale of shares of the Fund. It is understood that the Principal
Underwriter may pay such sales commissions and make such other payments to
Authorized Firms and other persons as it considers appropriate to encourage
distribution of such shares.
2. On each sale of Fund shares (excluding reinvestment of dividends and
distributions), the Fund shall pay the Principal Underwriter a sales commission
in an amount not exceeding 6.25% of the price received by the Fund therefor,
such payment to be made in the manner set forth and subject to the terms of this
Plan. The amount of the sales commission shall be established from time to time
by vote or other action of a majority of (i) those Trustees of the Trust who are
not "interested persons" (as defined in the Act) of the Trust and have no direct
or indirect financial interest in the operation of this Plan or any agreements
related to it (the "Rule 12b-1 Trustees") and (ii) all of the Trustees then in
office. The Fund shall also pay the Principal Underwriter a separate
distribution fee (calculated in accordance with Section 3), such payment to be
made in the manner set forth and subject to the terms of this Plan.
3. The sales commissions and distribution fees referred to in Section 2
shall be accrued and paid by the Fund in the following manner. The Fund shall
accrue daily an amount calculated at the rate of .75% per annum of the daily net
assets of the Fund, which net assets shall be computed in accordance with the
governing documents of the Trust and applicable votes and determinations of the
Trustees of the Trust. The daily amounts so accrued throughout the month shall
be paid to the Principal Underwriter on the last day of each month. The amount
of such daily accrual, as so calculated, shall first be applied and charged to
all unpaid sales commissions, and the balance, if any, shall then be applied and
charged to all unpaid distribution fees. No amount shall be accrued with respect
to any day on which there exist no outstanding uncovered distribution charges of
the Principal Underwriter. The amount of such uncovered distribution charges
shall be calculated daily. For purposes of this calculation, distribution
charges of the Principal Underwriter shall include (a) the aggregate of all
sales commissions which the Principal Underwriter has been paid pursuant to this
Section 3 (and pursuant to Section 3 of the Original Plan) plus all sales
commissions which it is entitled to be paid pursuant to Section 2 (and pursuant
to Section 2 of the Original Plan) since inception of the Original Plan through
and including the day next preceding the date of calculation, and (b) an amount
equal to the aggregate of all distribution fees referred to below which the
Principal Underwriter has been paid pursuant to this Section 3 (and pursuant to
Section 3 of the Original Plan) plus all such fees which it is entitled to be
paid pursuant to Section 2 (and pursuant to Section 2 of the Original Plan)
since inception of the Original Plan through and including the day next
preceding the date of calculation. From this sum (distribution charges) there
shall be subtracted (i) the aggregate amount paid or payable to the Principal
Underwriter pursuant to this Section 3 (and pursuant to Section 3 of the
Original Plan) since inception of the Original Plan through and including the
day next preceding the date of calculation, (ii) the aggregate amount of all
contingent deferred sales charges paid or payable to the Principal Underwriter
since inception of the Original Plan through and including the day next
preceding the date of calculation, and (iii) the aggregate amounts paid or
payable to the Principal Underwriter (or any affiliate thereof) by any party
other than the Fund with respect to the sale of shares of the Fund since
inception of the Original Plan through and including the day next preceding the
date of calculation. If the result of such subtraction is a positive amount, a
distribution fee [computed at the rate of 1% per annum above the prime rate
(being the base rate on corporate loans posted by at least 75% of the nation's
30 largest banks) then being reported in the Eastern Edition of The Wall Street
Journal or if such prime rate is not so reported such other rate as may be
designated from time to time by vote or other action of a majority of (i) the
Rule 12b-1 Trustees and (ii) all of the Trustees then in office] shall be
computed on such amount and added to such amount, with the resulting sum
constituting the amount of outstanding uncovered distribution charges of the
Principal Underwriter with respect to such day for all purposes of this Plan. If
the result of such subtraction is a negative amount, there shall exist no
outstanding uncovered distribution charges of the Principal Underwriter with
respect to such day and no amount shall be accrued or paid to the Principal
Underwriter with respect to such day. The aggregate amounts accrued and paid
pursuant to this Section 3 during any fiscal year of the Fund shall not exceed
.75% of the average daily net assets of the Fund for such year.
4. The Principal Underwriter shall be entitled to receive all
contingent deferred sales charges paid or payable with respect to any day on
which there exist outstanding uncovered distribution charges of the Principal
Underwriter. The Fund shall be entitled to receive all remaining contingent
deferred sales charges paid or payable by shareholders with respect to any day
on which there exist no outstanding uncovered distribution charges of the
Principal Underwriter, provided that no such sales charge which would cause the
Fund to exceed the maximum applicable cap imposed thereon by paragraph (2) of
subsection (d) of Section 26 of Article III of the NASD Rules shall be imposed.
5. The Fund may make payments of service fees to the Principal
Underwriter, Authorized Firms and other persons. The aggregate of such payments
during any fiscal year of the Fund shall not exceed .25% of the Fund's average
daily net assets for such year. Appropriate adjustment of service fee payments
shall be made whenever necessary to ensure that no such payment shall cause the
Fund to exceed the applicable maximum cap imposed thereon by paragraph (5) of
subsection (d) of Section 26 of Article III of the NASD Rules.
6. This Plan shall not take effect until after it has been approved by
both a majority of (i) the Rule 12b-1 Trustees and (ii) all of the Trustees then
in office, cast in person at a meeting (or meetings) called for the purpose of
voting on this Plan.
7. Any agreements between the Trust on behalf of the Fund and any
person relating to this Plan shall be in writing and shall not take effect until
approved in the manner provided for Trustee approval of this Plan in Section 6.
8. This Plan shall continue in effect through and including April 28,
1995, and shall continue in effect indefinitely thereafter, but only for so long
as such continuance after April 28, 1995 is specifically approved at least
annually in the manner provided for Trustee approval of this Plan in Section 6.
9. The persons authorized to direct the disposition of monies paid or
payable by the Fund pursuant to this Plan or any related agreement made on
behalf of the Fund shall be the President or any Vice President of the Trust.
Such persons shall provide to the Trustees of the Trust and the Trustees shall
review, at least quarterly, a written report of the amounts so expended and the
purposes for which such expenditures were made.
10. This Plan may be terminated at any time by vote of a majority of
the Rule 12b-1 Trustees, or by vote of a majority of the outstanding voting
securities of the Fund. The Principal Underwriter shall also be entitled to
receive all contingent deferred sales charges paid or payable with respect to
any day subsequent to termination of this Plan on which there exist outstanding
uncovered distribution charges of the Principal Underwriter.
11. This Plan may not be amended to increase materially the payments to
be made by the Fund as provided in Sections 2, 3 and 5 unless such amendment is
approved by a vote of at least a majority of the outstanding voting securities
of the Fund. In addition, all material amendments to this Plan shall be approved
in the manner provided for Trustee approval of this Plan in Section 6.
12. While this Plan is in effect, the selection and nomination of the
Rule 12b-1 Trustees shall be committed to the discretion of the Rule 12b-1
Trustees.
13. The Trust shall preserve copies of this Plan and any related
agreements made by the Trust on behalf of the Fund and all reports made pursuant
to Section 9, for a period of not less than six years from the date of this
Plan, or of the agreements or of such report, as the case may be, the first two
years in an easily accessible place.
14. Consistent with the limitation of shareholder, officer and Trustee
liability as set forth in the Trust's Declaration of Trust, any obligations
assumed by the Fund pursuant to this Plan shall be limited in all cases to the
assets of the Fund and no person shall seek satisfaction thereof from the
shareholders of the Trust, officers or Trustees of the Trust or any other series
of the Trust.
15. When used in this Plan, the term "service fees" shall have the same
meaning as such term has in subsections (b) and (d) of Section 26 of Article III
of the NASD Rules. When used in this Plan, the term "vote of a majority of the
outstanding voting securities of the Fund" shall mean the vote of the lesser of
(a) 67 per centum or more of the shares of the Fund present or represented by
proxy at the meeting if the holders of more than 50 per centum of the
outstanding shares of the Fund are present or represented by proxy at the
meeting, or (b) more than 50 per centum of the outstanding shares of the Fund.
16. If any provision of this Plan shall be held or made invalid by a
court decision, statute, rule or regulation of the Securities and Exchange
Commission or otherwise, the remainder of this Plan shall not be affected
thereby.
17. This Plan shall amend, replace and be substituted for the Original
Plan as of the opening of business on January 30, 1995 and this Plan shall be
effective as of such time. The outstanding uncovered distribution charges of the
Principal Underwriter calculated under the Original Plan as of the close of
business on January 29, 1995 shall be the outstanding uncovered distribution
charges of the Principal Underwriter calculated under this Plan as of the
opening of business on January 30, 1995.
IN WITNESS WHEREOF, the Trust has executed this Plan on behalf of the
Fund on the 27th day of January, 1995.
EATON VANCE GROWTH TRUST
(on behalf of EV CLASSIC GREATER
CHINA GROWTH FUND)
BY /s/ James B. Hawkes
-----------------------------
President
Attest:
/s/ Thomas Otis
-----------------------------
Secretary
<PAGE>
EXHIBIT 99.15(e)
EATON VANCE GROWTH TRUST
AMENDED DISTRIBUTION PLAN
ON BEHALF OF
EV CLASSIC GROWTH FUND
WHEREAS, Eaton Vance Growth Trust (the "Trust") engages in business as
an open-end investment company with multiple series and is registered as such
under the Investment Company Act of 1940, as amended (the "Act");
WHEREAS, the Trust adopted a separate Distribution Plan (the "Original
Plan") on behalf of its series, EV Classic Growth Fund (the "Fund"), pursuant to
which the Fund has made payments in connection with the distribution of shares
of the Fund;
WHEREAS, the Trust employs Eaton Vance Distributors, Inc. to act as
Principal Underwriter (as defined in the Act) of shares of the Fund, but does
not intend to remunerate the Principal Underwriter unless and until the
Principal Underwriter sells shares of the Fund;
WHEREAS, the Fund will pay the Principal Underwriter sales commissions
and distribution fees only in connection with the sale of shares of the Fund;
WHEREAS, the Fund intends to pay service fees as contemplated in
subsections (b) and (d) of Section 26 of Article III of the Rules of Fair
Practice of the National Association of Securities Dealers, Inc. (the "NASD
Rules");
WHEREAS, the Trustees of the Trust have determined that it is desirable
to amend and replace the Original Plan with this Amended Distribution Plan; and
WHEREAS, the Trustees of the Trust have determined that there is a
reasonable likelihood that adoption of this Amended Distribution Plan will
benefit the Fund and its shareholders.
NOW, THEREFORE, the Trust hereby adopts this Amended Distribution Plan
(this "Plan") on behalf of the Fund in accordance with Rule 12b-1 under the Act
and containing the following terms and conditions:
1. The Fund will pay sales commissions and distribution fees to the
Principal Underwriter only after and as a result of the sales of shares of the
Fund. The Principal Underwriter will provide the Fund with such distribution
services and facilities as the Trust may from time to time consider necessary to
accomplish the sale of shares of the Fund. It is understood that the Principal
Underwriter may pay such sales commissions and make such other payments to
Authorized Firms and other persons as it considers appropriate to encourage
distribution of such shares.
2. On each sale of Fund shares (excluding reinvestment of dividends and
distributions), the Fund shall pay the Principal Underwriter a sales commission
in an amount not exceeding 6.25% of the price received by the Fund therefor,
such payment to be made in the manner set forth and subject to the terms of this
Plan. The amount of the sales commission shall be established from time to time
by vote or other action of a majority of (i) those Trustees of the Trust who are
not "interested persons" (as defined in the Act) of the Trust and have no direct
or indirect financial interest in the operation of this Plan or any agreements
related to it (the "Rule 12b-1 Trustees") and (ii) all of the Trustees then in
office. The Fund shall also pay the Principal Underwriter a separate
distribution fee (calculated in accordance with Section 3), such payment to be
made in the manner set forth and subject to the terms of this Plan.
3. The sales commissions and distribution fees referred to in Section 2
shall be accrued and paid by the Fund in the following manner. The Fund shall
accrue daily an amount calculated at the rate of .75% per annum of the daily net
assets of the Fund, which net assets shall be computed in accordance with the
governing documents of the Trust and applicable votes and determinations of the
Trustees of the Trust. The daily amounts so accrued throughout the month shall
be paid to the Principal Underwriter on the last day of each month. The amount
of such daily accrual, as so calculated, shall first be applied and charged to
all unpaid sales commissions, and the balance, if any, shall then be applied and
charged to all unpaid distribution fees. No amount shall be accrued with respect
to any day on which there exist no outstanding uncovered distribution charges of
the Principal Underwriter. The amount of such uncovered distribution charges
shall be calculated daily. For purposes of this calculation, distribution
charges of the Principal Underwriter shall include (a) the aggregate of all
sales commissions which the Principal Underwriter has been paid pursuant to this
Section 3 (and pursuant to Section 3 of the Original Plan) plus all sales
commissions which it is entitled to be paid pursuant to Section 2 (and pursuant
to Section 2 of the Original Plan) since inception of the Original Plan through
and including the day next preceding the date of calculation, and (b) an amount
equal to the aggregate of all distribution fees referred to below which the
Principal Underwriter has been paid pursuant to this Section 3 (and pursuant to
Section 3 of the Original Plan) plus all such fees which it is entitled to be
paid pursuant to Section 2 (and pursuant to Section 2 of the Original Plan)
since inception of the Original Plan through and including the day next
preceding the date of calculation. From this sum (distribution charges) there
shall be subtracted (i) the aggregate amount paid or payable to the Principal
Underwriter pursuant to this Section 3 (and pursuant to Section 3 of the
Original Plan) since inception of the Original Plan through and including the
day next preceding the date of calculation and (ii) the aggregate amount of all
contingent deferred sales charges paid or payable to the Principal Underwriter
since inception of the Original Plan through and including the day next
preceding the date of calculation. If the result of such subtraction is a
positive amount, a distribution fee [computed at the rate of 1% per annum above
the prime rate (being the base rate on corporate loans posted by at least 75% of
the nation's 30 largest banks) then being reported in the Eastern Edition of The
Wall Street Journal or if such prime rate is not so reported such other rate as
may be designated from time to time by vote or other action of a majority of (i)
the Rule 12b-1 Trustees and (ii) all of the Trustees then in office] shall be
computed on such amount and added to such amount, with the resulting sum
constituting the amount of outstanding uncovered distribution charges of the
Principal Underwriter with respect to such day for all purposes of this Plan. If
the result of such subtraction is a negative amount, there shall exist no
outstanding uncovered distribution charges of the Principal Underwriter with
respect to such day and no amount shall be accrued or paid to the Principal
Underwriter with respect to such day. The aggregate amounts accrued and paid
pursuant to this Section 3 during any fiscal year of the Fund shall not exceed
.75% of the average daily net assets of the Fund for such year.
4. The Principal Underwriter shall be entitled to receive all
contingent deferred sales charges paid or payable with respect to any day on
which there exist outstanding uncovered distribution charges of the Principal
Underwriter. The Fund shall be entitled to receive all remaining contingent
deferred sales charges paid or payable by shareholders with respect to any day
on which there exist no outstanding uncovered distribution charges of the
Principal Underwriter, provided that no such sales charge which would cause the
Fund to exceed the maximum applicable cap imposed thereon by paragraph (2) of
subsection (d) of Section 26 of Article III of the NASD Rules shall be imposed.
5. The Fund may make payments of service fees to the Principal
Underwriter, Authorized Firms and other persons. The aggregate of such payments
during any fiscal year of the Fund shall not exceed .25% of the Fund's average
daily net assets for such year. Appropriate adjustment of service fee payments
shall be made whenever necessary to ensure that no such payment shall cause the
Fund to exceed the applicable maximum cap imposed thereon by paragraph (5) of
subsection (d) of Section 26 of Article III of the NASD Rules.
6. This Plan shall not take effect until after it has been approved by
both a majority of (i) the Rule 12b-1 Trustees and (ii) all of the Trustees then
in office, cast in person at a meeting (or meetings) called for the purpose of
voting on this Plan.
7. Any agreements between the Trust on behalf of the Fund and any
person relating to this Plan shall be in writing and shall not take effect until
approved in the manner provided for Trustee approval of this Plan in Section 6.
8. This Plan shall continue in effect through and including April 28,
1995, and shall continue in effect indefinitely thereafter, but only for so long
as such continuance after April 28, 1995 is specifically approved at least
annually in the manner provided for Trustee approval of this Plan in Section 6.
9. The persons authorized to direct the disposition of monies paid or
payable by the Fund pursuant to this Plan or any related agreement made on
behalf of the Fund shall be the President or any Vice President of the Trust.
Such persons shall provide to the Trustees of the Trust and the Trustees shall
review, at least quarterly, a written report of the amounts so expended and the
purposes for which such expenditures were made.
10. This Plan may be terminated at any time by vote of a majority of
the Rule 12b-1 Trustees, or by vote of a majority of the outstanding voting
securities of the Fund. The Principal Underwriter shall also be entitled to
receive all contingent deferred sales charges paid or payable with respect to
any day subsequent to termination of this Plan on which there exist outstanding
uncovered distribution charges of the Principal Underwriter.
11. This Plan may not be amended to increase materially the payments to
be made by the Fund as provided in Sections 2, 3 and 5 unless such amendment is
approved by a vote of at least a majority of the outstanding voting securities
of the Fund. In addition, all material amendments to this Plan shall be approved
in the manner provided for Trustee approval of this Plan in Section 6.
12. While this Plan is in effect, the selection and nomination of the
Rule 12b-1 Trustees shall be committed to the discretion of the Rule 12b-1
Trustees.
13. The Trust shall preserve copies of this Plan and any related
agreements made by the Trust on behalf of the Fund and all reports made pursuant
to Section 9, for a period of not less than six years from the date of this
Plan, or of the agreements or of such report, as the case may be, the first two
years in an easily accessible place.
14. Consistent with the limitation of shareholder, officer and Trustee
liability as set forth in the Trust's Declaration of Trust, any obligations
assumed by the Fund pursuant to this Plan shall be limited in all cases to the
assets of the Fund and no person shall seek satisfaction thereof from the
shareholders of the Trust, officers or Trustees of the Trust or any other series
of the Trust.
15. When used in this Plan, the term "service fees" shall have the same
meaning as such term has in subsections (b) and (d) of Section 26 of Article III
of the NASD Rules. When used in this Plan, the term "vote of a majority of the
outstanding voting securities of the Fund" shall mean the vote of the lesser of
(a) 67 per centum or more of the shares of the Fund present or represented by
proxy at the meeting if the holders of more than 50 per centum of the
outstanding shares of the Fund are present or represented by proxy at the
meeting, or (b) more than 50 per centum of the outstanding shares of the Fund.
16. If any provision of this Plan shall be held or made invalid by a
court decision, statute, rule or regulation of the Securities and Exchange
Commission or otherwise, the remainder of this Plan shall not be affected
thereby.
17. This Plan shall amend, replace and be substituted for the Original
Plan as of the opening of business on January 30, 1995 and this Plan shall be
effective as of such time. The outstanding uncovered distribution charges of the
Principal Underwriter calculated under the Original Plan as of the close of
business on January 29, 1995 shall be the outstanding uncovered distribution
charges of the Principal Underwriter calculated under this Plan as of the
opening of business on January 30, 1995.
IN WITNESS WHEREOF, the Trust has executed this Plan on behalf of the
Fund on the 27th day of January, 1995.
EATON VANCE GROWTH TRUST
(on behalf of EV CLASSIC GROWTH FUND)
BY /s/ James B. Hawkes
----------------------------------
President
Attest:
/s/ Thomas Otis
----------------------------------
Secretary
<PAGE>
EXHIBIT 99.15(f)
EATON VANCE GROWTH TRUST
DISTRIBUTION PLAN
ON BEHALF OF
EV MARATHON GROWTH FUND
WHEREAS, Eaton Vance Growth Trust (the "Trust") engages in business as
an open-end investment company with multiple series and is registered as such
under the Investment Company Act of 1940, as amended (the "Act");
WHEREAS, the Trust desires to adopt a separate Distribution Plan on
behalf of its series, EV Marathon Growth Fund (the "Fund"), pursuant to which
the Fund will make payments in connection with the distribution of shares of the
Fund;
WHEREAS, the Trust employs Eaton Vance Distributors, Inc. to act as
Principal Underwriter (as defined in the Act) of shares of the Fund, but does
not intend to remunerate the Principal Underwriter unless and until the
Principal Underwriter sells shares of the Fund;
WHEREAS, the Fund will pay the Principal Underwriter sales commissions
and distribution fees only in connection with the sale of shares of the Fund;
WHEREAS, the Fund intends to pay service fees as contemplated in
subsections (b) and (d) of Section 26 of Article III of the Rules of Fair
Practice of the National Association of Securities Dealers, Inc. (the "NASD
Rules"); and
WHEREAS, the Trustees of the Trust have determined that there is a
reasonable likelihood that adoption of this Distribution Plan will benefit the
Fund and its shareholders.
NOW, THEREFORE, the Trust hereby adopts this Distribution Plan (this
"Plan") on behalf of the Fund in accordance with Rule 12b-1 under the Act and
containing the following terms and conditions:
1. The Fund will pay sales commissions and distribution fees to the
Principal Underwriter only after and as a result of the sales of shares of the
Fund. The Principal Underwriter will provide the Fund with such distribution
services and facilities as the Trust may from time to time consider necessary to
accomplish the sale of shares of the Fund. It is understood that the Principal
Underwriter may pay such sales commissions and make such other payments to
Authorized Firms and other persons as it considers appropriate to encourage
distribution of such shares.
2. On each sale of Fund shares (excluding reinvestment of dividends and
distributions), the Fund shall pay the Principal Underwriter a sales commission
in an amount not exceeding 5% of the price received by the Fund therefor, such
payment to be made in the manner set forth and subject to the terms of this
Plan. The amount of the sales commission shall be established from time to time
by vote or other action of a majority of (i) those Trustees of the Trust who are
not "interested persons" (as defined in the Act) of the Trust and have no direct
or indirect financial interest in the operation of this Plan or any agreements
related to it (the "Rule 12b-1 Trustees") and (ii) all of the Trustees then in
office. The Fund shall also pay the Principal Underwriter a separate
distribution fee (calculated in accordance with Section 3), such payment to be
made in the manner set forth and subject to the terms of this Plan.
3. The sales commissions and distribution fees referred to in Section 2
shall be accrued and paid by the Fund in the following manner. The Fund shall
accrue daily an amount calculated at the rate of .75% per annum of the daily net
assets of the Fund, which net assets shall be computed in accordance with the
governing documents of the Trust and applicable votes and determinations of the
Trustees of the Trust. The daily amounts so accrued throughout the month shall
be paid to the Principal Underwriter on the last day of each month. The amount
of such daily accrual, as so calculated, shall first be applied and charged to
all unpaid sales commissions, and the balance, if any, shall then be applied and
charged to all unpaid distribution fees. No amount shall be accrued with respect
to any day on which there exist no outstanding uncovered distribution charges of
the Principal Underwriter. The amount of such uncovered distribution charges
shall be calculated daily. For purposes of this calculation, distribution
charges of the Principal Underwriter shall include (a) the aggregate of all
sales commissions which the Principal Underwriter has been paid pursuant to this
Section 3 plus all sales commissions which it is entitled to be paid pursuant to
Section 2 since inception of this Plan through and including the day next
preceding the date of calculation, and (b) an amount equal to the aggregate of
all distribution fees referred to below which the Principal Underwriter has been
paid pursuant to this Section 3 plus all such fees which it is entitled to be
paid pursuant to Section 2 since inception of this Plan through and including
the day next preceding the date of calculation. From this sum (distribution
charges) there shall be subtracted (i) the aggregate amount paid or payable to
the Principal Underwriter pursuant to this Section 3 since inception of this
Plan through and including the day next preceding the date of calculation and
(ii) the aggregate amount of all contingent deferred sales charges paid or
payable to the Principal Underwriter since inception of this Plan through and
including the day next preceding the date of calculation. If the result of such
subtraction is a positive amount, a distribution fee [computed at the rate of 1%
per annum above the prime rate (being the base rate on corporate loans posted by
at least 75% of the nation's 30 largest banks) then being reported in the
Eastern Edition of The Wall Street Journal or if such prime rate is not so
reported such other rate as may be designated from time to time by vote or other
action of a majority of (i) the Rule 12b-1 Trustees and (ii) all of the Trustees
then in office] shall be computed on such amount and added to such amount, with
the resulting sum constituting the amount of outstanding uncovered distribution
charges of the Principal Underwriter with respect to such day for all purposes
of this Plan. If the result of such subtraction is a negative amount, there
shall exist no outstanding uncovered distribution charges of the Principal
Underwriter with respect to such day and no amount shall be accrued or paid to
the Principal Underwriter with respect to such day. The aggregate amounts
accrued and paid pursuant to this Section 3 during any fiscal year of the Fund
shall not exceed .75% of the average daily net assets of the Fund for such year.
4. The Principal Underwriter shall be entitled to receive all
contingent deferred sales charges paid or payable with respect to any day on
which there exist outstanding uncovered distribution charges of the Principal
Underwriter. The Fund shall be entitled to receive all remaining contingent
deferred sales charges paid or payable by shareholders with respect to any day
on which there exist no outstanding uncovered distribution charges of the
Principal Underwriter, provided that no such sales charge which would cause the
Fund to exceed the maximum applicable cap imposed thereon by paragraph (2) of
subsection (d) of Section 26 of Article III of the NASD Rules shall be imposed.
5. The Fund may make payments of service fees to the Principal
Underwriter, Authorized Firms and other persons. The aggregate of such payments
during any fiscal year of the Fund shall not exceed .25% of the Fund's average
daily net assets for such year. Appropriate adjustment of service fee payments
shall be made whenever necessary to ensure that no such payment shall cause the
Fund to exceed the applicable maximum cap imposed thereon by paragraph (5) of
subsection (d) of Section 26 of Article III of the NASD Rules.
6. This Plan shall not take effect until after it has been approved by
both a majority of (i) the Rule 12b-1 Trustees and (ii) all of the Trustees then
in office, cast in person at a meeting (or meetings) called for the purpose of
voting on this Plan.
7. Any agreements between the Trust on behalf of the Fund and any
person relating to this Plan shall be in writing and shall not take effect until
approved in the manner provided for Trustee approval of this Plan in Section 6.
8. This Plan shall continue in effect for so long as such continuance
is specifically approved at least annually in the manner provided for Trustee
approval of this Plan in Section 6.
9. The persons authorized to direct the disposition of monies paid or
payable by the Fund pursuant to this Plan or any related agreement made on
behalf of the Fund shall be the President or any Vice President of the Trust.
Such persons shall provide to the Trustees of the Trust and the Trustees shall
review, at least quarterly, a written report of the amounts so expended and the
purposes for which such expenditures were made.
10. This Plan may be terminated at any time by vote of a majority of
the Rule 12b-1 Trustees, or by vote of a majority of the outstanding voting
securities of the Fund. The Principal Underwriter shall also be entitled to
receive all contingent deferred sales charges paid or payable with respect to
any day subsequent to termination of this Plan on which there exist outstanding
uncovered distribution charges of the Principal Underwriter.
11. This Plan may not be amended to increase materially the payments to
be made by the Fund as provided in Sections 2, 3 and 5 unless such amendment is
approved by a vote of at least a majority of the outstanding voting securities
of the Fund. In addition, all material amendments to this Plan shall be approved
in the manner provided for Trustee approval of this Plan in Section 6.
12. While this Plan is in effect, the selection and nomination of the
Rule 12b-1 Trustees shall be committed to the discretion of the Rule 12b-1
Trustees.
13. The Trust shall preserve copies of this Plan and any related
agreements made by the Trust on behalf of the Fund and all reports made pursuant
to Section 9, for a period of not less than six years from the date of this
Plan, or of the agreements or of such report, as the case may be, the first two
years in an easily accessible place.
14. Consistent with the limitation of shareholder, officer and Trustee
liability as set forth in the Trust's Declaration of Trust, any obligations
assumed by the Fund pursuant to this Plan shall be limited in all cases to the
assets of the Fund and no person shall seek satisfaction thereof from the
shareholders of the Trust, officers or Trustees of the Trust or any other series
of the Trust.
15. This Plan shall, prior to the initial accrual or payment of any
amount hereunder, be approved by a vote of at least a majority of the
outstanding voting securities of the Fund.
16. When used in this Plan, the term "service fees" shall have the same
meaning as such term has in subsections (b) and (d) of Section 26 of Article III
of the NASD Rules. When used in this Plan, the term "vote of a majority of the
outstanding voting securities of the Fund" shall mean the vote of the lesser of
(a) 67 per centum or more of the shares of the Fund present or represented by
proxy at the meeting if the holders of more than 50 per centum of the
outstanding shares of the Fund are present or represented by proxy at the
meeting, or (b) more than 50 per centum of the outstanding shares of the Fund.
17. If any provision of this Plan shall be held or made invalid by a
court decision, statute, rule or regulation of the Securities and Exchange
Commission or otherwise, the remainder of this Plan shall not be affected
thereby.
IN WITNESS WHEREOF, the Trust has executed this Plan on behalf of the
Fund on the 1st day of August, 1994.
EATON VANCE GROWTH TRUST
(on behalf of EV MARATHON GROWTH FUND)
BY /s/ James B. Hawkes
-----------------------------------
President
Attest:
/s/ Thomas Otis
-----------------------------------
Secretary
EXHIBIT 99.(15)(i)
EATON VANCE GROWTH TRUST
DISTRIBUTION PLAN
ON BEHALF OF
EV MARATHON GOLD & NATURAL RESOURCES FUND (THE "FUND")
WHEREAS, Eaton Vance Growth Trust (the "Trust") engages in business as
an open-end investment company with multiple series and is registered as such
under the Investment Company Act of 1940, as amended (the "Act");
WHEREAS, the Trust's predecessor adopted a Distribution Plan dated
October 21, 1987, amended and replaced July 7, 1993 (the "Original Plan") on
behalf of its series, EV Marathon Gold & Natural Resources Fund's predecessor
(the "Series), pursuant to which the Series has made payments in connection with
the distribution of shares of the Series;
WHEREAS, the Trust employs Eaton Vance Distributors, Inc. to act as
Principal Underwriter (as defined in the Act) of shares of the Fund, but does
not intend to remunerate the Principal Underwriter unless and until the
Principal Underwriter sells shares of the Fund;
WHEREAS, the Fund will pay the Principal Underwriter sales commissions
and distribution fees only in connection with the sale of shares of the Fund;
WHEREAS, the Fund intends to pay service fees as contemplated in
subsections (b) and (d) of Section 26 of Article III of the Rules of Fair
Practice of the National Association of Securities Dealers, Inc. (the "NASD
Rules");
WHEREAS, the Fund is the successor in operations to the Series pursuant
to a reorganization and the Trustees of the Trust have determined that it is
desirable to replace the Original Plan with a distribution plan with
substantially the same terms;
WHEREAS, the Trustees of the Trust have determined that there is a
reasonable likelihood that adoption of this Distribution Plan will benefit the
Fund and its shareholders.
NOW, THEREFORE, the Trust hereby adopts this Distribution Plan (this
"Plan") on behalf of the Fund in accordance with Rule 12b-1 under the Act and
containing the following terms and conditions:
1. The Fund will pay sales commissions and distribution fees to the
Principal Underwriter only after and as a result of the sale of shares of the
Fund. The Principal Underwriter will provide the Fund with such distribution
services and facilities as the Trust may from time to time consider necessary to
accomplish the sale of shares of the Fund. It is understood that the Principal
Underwriter may pay such sales commissions and make such other payments to
Authorized Firms and other persons as it considers appropriate to encourage
distribution of such shares.
2. On each sale of Fund shares (excluding reinvestment of dividends and
distributions), the Fund shall pay the Principal Underwriter a sales commission
in an amount not exceeding 5% of the price received by the Fund therefor, such
payment to be made in the manner set forth and subject to the terms of this
Plan. The amount of the sales commission shall be established from time to time
by vote or other action of a majority of (i) those Trustees of the Trust who are
not "interested persons" (as defined in the Act) of the Trust and have no direct
or indirect financial interest in the operation of this Plan or any agreements
related to it (the "Rule 12b-1 Trustees") and (ii) all of the Trustees then in
office. The Fund shall also pay the Principal Underwriter a separate
distribution fee (calculated in accordance with Section 3), such payment to be
made in the manner set forth and subject to the terms of this Plan.
3. The sales commissions and distribution fees referred to in Section 2
shall be accrued and paid by the Fund in the following manner. The Fund shall
accrue daily an amount calculated at the rate of .75% per annum of the daily net
assets of the Fund, which net assets shall be computed in accordance with the
governing documents of the Trust and applicable votes and determinations of the
Trustees of the Trust. The daily amounts so accrued throughout the month shall
be paid to the Principal Underwriter on the last day of each month. The amount
of such daily accrual, as so calculated, shall first be applied and charged to
all unpaid sales commissions, and the balance, if any, shall then be applied and
charged to all unpaid distribution fees. No amount shall be accrued with respect
to any day on which there exist no outstanding uncovered distribution charges of
the Principal Underwriter. The amount of such uncovered distribution charges
shall be calculated daily. For purposes of this calculation, distribution
charges of the Principal Underwriter shall include (a) the aggregate of all
sales commissions which the Principal Underwriter has been paid pursuant to this
Section 3 (and pursuant to Section 3 of the Original Plan) plus all sales
commissions which it is entitled to be paid pursuant to Section 2 (and pursuant
to Section 2 of the Original Plan) since inception of the Original Plan through
and including the day next preceding the date of calculation, and (b) an amount
equal to the aggregate of all distribution fees referred to below which the
Principal Underwriter has been paid pursuant to this Section 3 (and pursuant to
Section 3 of the Original Plan) plus all such fees which it is entitled to be
paid pursuant to Section 2 (and pursuant to Section 2 of the Original Plan)
since inception of the Original Plan through and including the day next
preceding the date of calculation. From this sum (distribution charges) there
shall be subtracted (i) the aggregate amount paid or payable to the Principal
Underwriter pursuant to this Section 3 (and pursuant to Section 3 of the
Original Plan) since inception of the Original Plan through and including the
day next preceding the date of calculation and (ii) the aggregate amount of all
contingent deferred sales charges paid or payable to the Principal Underwriter
since inception of the Original Plan through and including the day next
preceding the date of calculation. If the result of such subtraction is a
positive amount, a distribution fee [computed at the rate of 1% per annum above
the prime rate (being the base rate on corporate loans posted by at least 75% of
the nation's 30 largest banks) then being reported in the Eastern Edition of The
Wall Street Journal or if such prime rate is not so reported such other rate as
may be designated from time to time by vote or other action of a majority of (i)
the Rule 12b-1 Trustees and (ii) all of the Trustees then in office] shall be
computed on such amount and added to such amount, with the resulting sum
constituting the amount of outstanding uncovered distribution charges of the
Principal Underwriter with respect to such day for all purposes of this Plan. If
the result of such subtraction is a negative amount, there shall exist no
outstanding uncovered distribution charges of the Principal Underwriter with
respect to such day and no amount shall be accrued or paid to the Principal
Underwriter with respect to such day. The aggregate amounts accrued and paid
pursuant to this Section 3 during any fiscal year of the Fund shall not exceed
.75% of the average daily net assets of the Fund for such year.
4. The Principal Underwriter shall be entitled to receive all
contingent deferred sales charges paid or payable with respect to any day on
which there exist outstanding uncovered distribution charges of the Principal
Underwriter. The Fund shall be entitled to receive all remaining contingent
deferred sales charges paid or payable by shareholders with respect to any day
on which there exist no outstanding uncovered distribution charges of the
Principal Underwriter, provided that no such sales charge which would cause the
Fund to exceed the maximum applicable cap imposed thereon by paragraph (2) of
subsection (d) of Section 26 of Article III of the NASD Rules shall be imposed.
5. The Fund may make payments of service fees to the Principal
Underwriter, Authorized Firms and other persons. The aggregate of such payments
during any fiscal year of the Fund shall not exceed .25% of the Fund's average
daily net assets for such year. Appropriate adjustment of service fee payments
shall be made whenever necessary to ensure that no such payment shall cause the
Fund to exceed the applicable maximum cap imposed thereon by paragraph (5) of
subsection (d) of Section 26 of Article III of the NASD Rules.
6. This Plan shall not take effect until after it has been approved by
both a majority of (i) the Rule 12b-1 Trustees and (ii) all of the Trustees then
in office, cast in person at a meeting (or meetings) called for the purpose of
voting on this Plan.
7. Any agreements between the Trust on behalf of the Fund and any
person relating to this Plan shall be in writing and shall not take effect until
approved in the manner provided for Trustee approval of this Plan in Section 6.
8. This Plan shall continue in effect through and including April 28,
1996 and shall continue indefinitely thereafter, but only for so long as such
continuance after April 28, 1996 is specifically approved at least annually in
the manner provided for Trustee approval of this Plan in Section 6.
9. The persons authorized to direct the disposition of monies paid or
payable by the Fund pursuant to this Plan or any related agreement made on
behalf of the Fund shall be the President or any Vice President of the Trust.
Such persons shall provide to the Trustees of the Trust and the Trustees shall
review, at least quarterly, a written report of the amounts so expended and the
purposes for which such expenditures were made.
10. This Plan may be terminated at any time by vote of a majority of
the Rule 12b-1 Trustees, or by vote of a majority of the outstanding voting
securities of the Fund. The Principal Underwriter shall also be entitled to
receive all contingent deferred sales charges paid or payable with respect to
any day subsequent to termination of this Plan on which there exist outstanding
uncovered distribution charges of the Principal Underwriter.
11. This Plan may not be amended to increase materially the payments to
be made by the Fund as provided in Sections 2, 3 and 5 unless such amendment is
approved by a vote of at least a majority of the outstanding voting securities
of the Fund. In addition, all material amendments to this Plan shall be approved
in the manner provided for Trustee approval of this Plan in Section 6.
12. While this Plan is in effect, the selection and nomination of the
Rule 12b-1 Trustees shall be committed to the discretion of the Rule 12b-1
Trustees.
13. The Trust shall preserve copies of this Plan and any related
agreements made by the Trust on behalf of the Fund and all reports made pursuant
to Section 9, for a period of not less than six years from the date of this
Plan, or of the agreements or of such report, as the case may be, the first two
years in an easily accessible place.
14. Consistent with the limitation of shareholder, officer and Trustee
liability as set forth in the Trust's Declaration of Trust, any obligations
assumed by the Fund pursuant to this Plan shall be limited in all cases to the
assets of the Fund and no person shall seek satisfaction thereof from the
shareholders of the Trust, officers or Trustees of the Trust or any other series
of the Trust.
15. When used in this Plan, the term "service fees" shall have the same
meaning as such term has in subsections (b) and (d) of Section 26 of Article III
of the NASD Rules. When used in this Plan, the term "vote of a majority of the
outstanding voting securities of the Fund" shall mean the vote of the lesser (a)
67 per centum or more of the shares of the Fund present or represented by proxy
at the meeting if the holders of more than 50 per centum of the outstanding
shares of the Fund are present or represented by proxy at the meeting, or (b)
more than 50 per centum of the outstanding shares of the Fund.
16. If any provision of this Plan shall be held or made invalid by a
court decision, statute, rule or regulation of the Securities and Exchange
Commission or otherwise, the remainder of this Plan shall not be affected
thereby.
17. This Plan shall amend, replace and be substituted for the Original
Plan as of the opening of business on September 1, 1995, and this Plan shall be
effective as of such time. The outstanding uncovered distribution charges of the
Principal Underwriter calculated under the Original Plan as of the close of
business on August 31, 1995 shall be the outstanding uncovered distribution
charges of the Principal Underwriter calculated under this Plan as of the
opening of business on September 1, 1995.
ADOPTED JUNE 19, 1995
* * *
<TABLE>
EV MARATHON GOLD AND NATURAL RESOURCES FUND
INVESTMENT PERFORMANCE
The table below indicates the total return (capital changes plus reinvestment of all distributions) on a hypothetical investment of
$1,000 in the Fund covering the life of the Fund ending September 30, 1994. Past performance is not indicative of future results.
Investment return and principal value will fluctuate and shares, when redeemed, may be worth more or less than their original cost.
<CAPTION>
TOTAL TOTAL
RETURN RETURN
NO. OF SHARES 09/30/94 09/30/94 THROUGH THOUGH
GAINED THROUGH VALUE OF VALUE OF 09/30/94 09/30/94
REINVESTMENT TOTAL INVEST- INVEST- BEFORE AFTER
NO. OF NAV ON OF ALL NO. OF MENT MENT DEDUCTING DEDUCTING
INVEST- INVEST- AMT OF SHARES DATE OF DISTRIBUTIONS SHARES BEFORE AFTER THE CDSC THE CDSC*
MENT MENT INVEST- PUR- INVEST- THROUGH AS OF 09/30/94 DEDUCTING DEDUCTING
PERIOD DATE MENT CHASED MENT 09/30/94 09/30/94 NAV THE CDSC THE CDSC* CUMUL^ ANN++ CUMUL^^ ANN++
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
LIFE OF 10/21/87 $1,000 100.000 $10.00 34.268 134.268 $14.89 $1,999.25 $1,999.25 99.93% 10.48% 99.93% 10.48%
THE FUND
(6.95 YRS)
5 YEARS
ENDING 09/30/89 $1,000 74.294 $13.46 20.341 94.635 $14.89 $1,409.12 $1,389.12 40.91% 7.10% 38.91% 6.79%
09/30/94
1 YEAR
ENDING 09/30/93 $1,000 75.529 $13.24 5.379 80.908 $14.89 $1,204.72 $1,154.72 20.47% 20.47% 15.47% 15.47%
09/30/94
* No contingent deferred sales charge (CDSC) is imposed on shares purchased more than six years prior to the redemption,
shares acquired through the reinvestment of dividends and distributions and any appreciation in value of other shares in
the account, and no such charge is imposed on exchanges of fund shares for shares of one or more other funds in the Eaton
Vance Marathon Group of Funds.
^ Cumulative total return (net asset value to net asset value) is calculated by dividing the cumulative net asset value on
09/30/94 by the initial net asset value.
^^ Cumulative total return (net asset value to net asset value) is calculated by dividing the cumulative net asset value on
09/30/94 by the initial net asset value and subtracting the CDSC.
++ Average annual total return is the average annual compounded rate of return based on the cumulative value for each period.
It is calculated by taking the nth root of 1 + the cumulative total return, where n = the number of years invested.
</TABLE>
<PAGE>
EXHIBIT 99.17(a)
POWER OF ATTORNEY
We, the undersigned officers and Trustees of Eaton Vance Growth Trust,
a Massachusetts business trust, do hereby severally constitute and appoint H.
Day Brigham, Jr., James B. Hawkes and Thomas Otis, or any of them, to be true,
sufficient and lawful attorneys, or attorney for each of us, to sign for each of
us, in the name of each of us in the capacities indicated below, any and all
amendments (including post-effective amendments) to the Registration Statement
on Form N-1A filed by Eaton Vance Growth Trust with the Securities and Exchange
Commission in respect of shares of beneficial interest and other documents and
papers relating thereto.
IN WITNESS WHEREOF we have hereunto set our hands on the dates set
opposite our respective signatures.
Signature Title Date
President, Principal
/s/ James B. Hawkes Executive Officer and August 7, 1995
------------------------ Trustee
James B. Hawkes
Treasurer and Principal
/s/ James L. O'Connor Financial and Accounting August 7, 1995
------------------------ Officer
James L. O'Connor
/s/ Landon T. Clay Trustee August 7, 1995
------------------------
Landon T. Clay
/s/ Donald R. Dwight Trustee August 7, 1995
------------------------
Donald R. Dwight
/s/ Samuel L. Hayes III Trustee August 7, 1995
------------------------
Samuel L. Hayes, III
/s/ Norton H. Reamer Trustee August 7, 1995
------------------------
Norton H. Reamer
/s/ John L. Thorndike Trustee August 7, 1995
------------------------
John L. Thorndike
/s/ Jack L. Treynor Trustee August 7, 1995
------------------------
Jack L. Treynor
EXHIBIT 99.17(b)
POWER OF ATTORNEY
We, the undersigned officers and Trustees of Greater China Growth
Portfolio, a New York trust, do hereby severally constitute and appoint H. Day
Brigham, Jr., James B. Hawkes and Thomas Otis, or any of them, to be true,
sufficient and lawful attorneys, or attorney for each of us, to sign for each of
us, in the name of each of us in the capacities indicated below, any and all
amendments (including post-effective amendments) to the Registration Statement
on Form N-1A filed by Eaton Vance Growth Trust on behalf of Eaton Vance Greater
China Growth Fund with the Securities and Exchange Commission in respect of
shares of beneficial interest and other documents and papers relating thereto.
IN WITNESS WHEREOF we have hereunto set our hands on the dates set
opposite our respective signatures.
Name Capacity Date
/s/ R. Lloyd George Trustee and President of
------------------------ Greater China Growth Portfolio March 30, 1993
Robert Lloyd George
/s/ James B. Hawkes Trustee of Greater
------------------------ China Growth Portfolio March 30, 1993
James B. Hawkes
/s/ Samuel L. Hayes III Trustee of Greater
------------------------ China Growth Portfolio March 30, 1993
Samuel L. Hayes, III
Treasurer (Principal Financial
and Principal Accounting Officer)
/s/ James L. O'Connor of Greater China Growth Portfolio March 30, 1993
------------------------
James L. O'Connor
/s/ Edward K.Y. Chen Trustee of Greater
------------------------ China Growth Portfolio March 30, 1993
Edward K.Y. Chen
/s/ S. H. Leckie Trustee of Greater
------------------------ China Growth Portfolio March 30, 1993
Stuart Hamilton Leckie
EXHIBIT 99.17(c)
POWER OF ATTORNEY
We, the undersigned officers and Trustees of Growth Portfolio, a New
York trust, do hereby severally constitute and appoint H. Day Brigham, Jr.,
James B. Hawkes and Thomas Otis, or any of them, to be true, sufficient and
lawful attorneys, or attorney for each of us, to sign for each of us, in the
name of each of us in the capacities indicated below, any and all amendments
(including post-effective amendments) to the Registration Statement on Form N-1A
filed by Eaton Vance Growth Trust with the Securities and Exchange Commission in
respect of shares of beneficial interest and other documents and papers relating
thereto.
IN WITNESS WHEREOF we have hereunto set our hands on the dates set
opposite our respective signatures.
Name Title Date
/s/ James B. Hawkes President and Trustee August 7, 1995
------------------------
James B. Hawkes
/s/ Landon T. Clay Trustee August 7, 1995
------------------------
Landon T. Clay
/s/ Donald R. Dwight Trustee August 7, 1995
------------------------
Donald R. Dwight
/s/ Samuel L. Hayes III Trustee August 7, 1995
------------------------
Samuel L. Hayes, III
/s/ Norton H. Reamer Trustee August 7, 1995
------------------------
Norton H. Reamer
/s/ John L. Thorndike Trustee August 7, 1995
------------------------
John L. Thorndike
/s/ Jack L. Treynor Trustee August 7, 1995
------------------------
Jack L. Treynor
/s/ James L. O'Connor Treasurer and Principal
------------------------ Financial and Accounting August 7, 1995
James L. O'Connor Officer
WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.
<TABLE> <S> <C>
<ARTICLE> 6
<CIK> 0000819938
<NAME> EV MARATHON GOLD & NATURAL RESOURCES FUND
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> SEP-30-1995
<PERIOD-END> MAR-31-1995
<INVESTMENTS-AT-COST> 11,905,760
<INVESTMENTS-AT-VALUE> 13,523,943
<RECEIVABLES> 213,431
<ASSETS-OTHER> 0
<OTHER-ITEMS-ASSETS> 705
<TOTAL-ASSETS> 13,738,079
<PAYABLE-FOR-SECURITIES> 0
<SENIOR-LONG-TERM-DEBT> 0
<OTHER-ITEMS-LIABILITIES> 168,511
<TOTAL-LIABILITIES> 168,511
<SENIOR-EQUITY> 0
<PAID-IN-CAPITAL-COMMON> 11,964,658
<SHARES-COMMON-STOCK> 936,209
<SHARES-COMMON-PRIOR> 0
<ACCUMULATED-NII-CURRENT> (15,236)
<OVERDISTRIBUTION-NII> 0
<ACCUMULATED-NET-GAINS> 1,963
<OVERDISTRIBUTION-GAINS> 0
<ACCUM-APPREC-OR-DEPREC> 1,618,183
<NET-ASSETS> 13,569,568
<DIVIDEND-INCOME> 107,694
<INTEREST-INCOME> 13,144
<OTHER-INCOME> 0
<EXPENSES-NET> 148,326
<NET-INVESTMENT-INCOME> (27,488)
<REALIZED-GAINS-CURRENT> 63,188
<APPREC-INCREASE-CURRENT> (375,066)
<NET-CHANGE-FROM-OPS> (339,366)
<EQUALIZATION> 0
<DISTRIBUTIONS-OF-INCOME> 0
<DISTRIBUTIONS-OF-GAINS> 0
<DISTRIBUTIONS-OTHER> 0
<NUMBER-OF-SHARES-SOLD> 181,002
<NUMBER-OF-SHARES-REDEEMED> 121,675
<SHARES-REINVESTED> 0
<NET-CHANGE-IN-ASSETS> 514,253
<ACCUMULATED-NII-PRIOR> 0
<ACCUMULATED-GAINS-PRIOR> 0
<OVERDISTRIB-NII-PRIOR> 0
<OVERDIST-NET-GAINS-PRIOR> 0
<GROSS-ADVISORY-FEES> 48,163
<INTEREST-EXPENSE> 0
<GROSS-EXPENSE> 148,326
<AVERAGE-NET-ASSETS> 12,853
<PER-SHARE-NAV-BEGIN> 14.89
<PER-SHARE-NII> (0.016)
<PER-SHARE-GAIN-APPREC> (0.384)
<PER-SHARE-DIVIDEND> 0
<PER-SHARE-DISTRIBUTIONS> 0
<RETURNS-OF-CAPITAL> 0
<PER-SHARE-NAV-END> 14.49
<EXPENSE-RATIO> 2.31
<AVG-DEBT-OUTSTANDING> 0
<AVG-DEBT-PER-SHARE> 0
</TABLE>
WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.
<TABLE> <S> <C>
<ARTICLE> 6
<CIK> 0000819938
<NAME> EV MARATHON GOLD & NATURAL RESOURCES FUND
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> SEP-30-1994
<PERIOD-END> SEP-30-1994
<INVESTMENTS-AT-COST> 11,504,551
<INVESTMENTS-AT-VALUE> 13,497,800
<RECEIVABLES> 369,402
<ASSETS-OTHER> 0
<OTHER-ITEMS-ASSETS> 157,725
<TOTAL-ASSETS> 14,024,927
<PAYABLE-FOR-SECURITIES> 938,832
<SENIOR-LONG-TERM-DEBT> 0
<OTHER-ITEMS-LIABILITIES> 30,780
<TOTAL-LIABILITIES> 969,612
<SENIOR-EQUITY> 0
<PAID-IN-CAPITAL-COMMON> 11,123,291
<SHARES-COMMON-STOCK> 876,882
<SHARES-COMMON-PRIOR> 0
<ACCUMULATED-NII-CURRENT> 0
<OVERDISTRIBUTION-NII> 0
<ACCUMULATED-NET-GAINS> (61,225)
<OVERDISTRIBUTION-GAINS> 0
<ACCUM-APPREC-OR-DEPREC> 1,993,249
<NET-ASSETS> 13,055,315
<DIVIDEND-INCOME> 146,257
<INTEREST-INCOME> 10,761
<OTHER-INCOME> 0
<EXPENSES-NET> 246,825
<NET-INVESTMENT-INCOME> (89,807)
<REALIZED-GAINS-CURRENT> (61,225)
<APPREC-INCREASE-CURRENT> 1,765,546
<NET-CHANGE-FROM-OPS> 1,614,514
<EQUALIZATION> 0
<DISTRIBUTIONS-OF-INCOME> 0
<DISTRIBUTIONS-OF-GAINS> 0
<DISTRIBUTIONS-OTHER> (519,205)
<NUMBER-OF-SHARES-SOLD> 731,556
<NUMBER-OF-SHARES-REDEEMED> (320,555)
<SHARES-REINVESTED> 28,365
<NET-CHANGE-IN-ASSETS> 7,263,179
<ACCUMULATED-NII-PRIOR> 0
<ACCUMULATED-GAINS-PRIOR> 0
<OVERDISTRIB-NII-PRIOR> 0
<OVERDIST-NET-GAINS-PRIOR> 0
<GROSS-ADVISORY-FEES> 70,439
<INTEREST-EXPENSE> 0
<GROSS-EXPENSE> 246,825
<AVERAGE-NET-ASSETS> 9,409,068
<PER-SHARE-NAV-BEGIN> 13.24
<PER-SHARE-NII> (0.050)
<PER-SHARE-GAIN-APPREC> 2.650
<PER-SHARE-DIVIDEND> 0
<PER-SHARE-DISTRIBUTIONS> 0
<RETURNS-OF-CAPITAL> (0.950)
<PER-SHARE-NAV-END> 14.89
<EXPENSE-RATIO> 2.64
<AVG-DEBT-OUTSTANDING> 0
<AVG-DEBT-PER-SHARE> 0
</TABLE>
