<PAGE>
As filed with the Securities and Exchange Commission on February 28, 1996
1940 Act File No. 811-1339
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM N-lA
REGISTRATION STATEMENT UNDER
THE INVESTMENT COMPANY ACT OF 1940 X
Amendment No. 19 X
CAPITAL EXCHANGE FUND, INC.
(Exact Name of Registrant as Specified in Charter)
24 Federal Street, Boston, Massachusetts 02110
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(Address of Principal Executive Offices)
(617) 482-8260
--------------
(Registrant's Telephone Number including Area Code)
THOMAS OTIS, Clerk
24 Federal Street, Boston, Massachusetts 02110
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(Name and address of agent for service)
<PAGE>
PART A
INFORMATION REQUIRED IN A PROSPECTUS
Responses to Items 1, 2, 3 and 5A have been omitted pursuant to
Paragraph 4 of Instruction F of the General Instructions to Form N-1A.
Item 4. General Description of Registrant
(a)(i) Capital Exchange Fund, Inc. ( the "Registrant") is an open-end
diversified management investment company organized on October 14, 1965 as a
Massachusetts corporation.
(ii) The investment objective of the Registrant is to achieve
long-term, after-tax returns for its shareholders through investing in a
diversified portfolio of equity securities. This objective is nonfundamental but
the Directors intend to submit any proposed change which would be material to
shareholders for approval.
The Registrant intends to achieve its investment objective by investing
in Tax-Managed Growth Portfolio (the "Portfolio") (File No. 811-7409). The
Registrant and the Portfolio have the same investment policies and restrictions,
and, therefore, the Registrant incorporates by reference the Portfolio's
Registration Statement under the Investment Company Act of 1940 (the "1940 Act")
on Form N-1A as previously filed electronically with the Securities and Exchange
Commission (the "Commission") on November 2, 1995 (Accession No.
0000898432-95-000362).
(b) The Registrant incorporates the information set forth under Item 4
of the Registration Statement of the Portfolio herein by reference.
(c) The Registrant incorporates the information set forth under Item 4
of the Registration Statement of the Portfolio herein by reference.
Item 5. Management of the Fund
(a) The Board of Directors has overall responsibility for management of
the Registrant.
(b) Inapplicable.
(c) Inapplicable.
(d) Eaton Vance Management ("Eaton Vance" or "Administrator") acts as
Administrator of the Registrant, but currently receives no compensation for
providing administrative services to the Registrant. As Administrator, Eaton
Vance provides the Registrant with general office facilities and supervises the
overall administration of the Registrant.
(e) The transfer and dividend disbursing agent is First Data Investor
Services Group, BOS725, P. 0. Box 1559, Boston, Massachusetts 02104.
(f) The Registrant's ratio of expenses to average net assets for the
fiscal year ended October 31, 1995 was 0.76%.
(g) Inapplicable.
Item 6. Capital Stock and Other Securities
No change from the information set forth in Item 6 of Form N-1A, filed
as Amendment No. 8 to the Registration Statement under the 1940 Act, File No.
811-1339, which information is incorporated herein by reference. In addition,
whenever the Registrant as an investor in the Portfolio is requested to vote on
matters pertaining to the Portfolio (other than the termination of the
Portfolio's business, which may be determined by the Trustees of the Portfolio
without investor approval), the Registrant will hold a meeting of shareholders
and will vote its interest in the Portfolio for or against such matters
proportionately to the instructions to vote for or against such matters received
from shareholders. The Registrant shall vote shares for which it receives no
voting instructions in the same proportion as the shares for which it receives
voting instructions. Other investors in the Portfolio may alone or collectively
acquire sufficient voting interests in the Portfolio to control matters relating
to the operation of the Portfolio, which may require the Registrant to withdraw
its investment in the Portfolio or take other appropriate action.
Item 7. Purchase of Securities Being Offered
Inapplicable. Registrant has not offered its shares for sale subsequent
to its initial public offering in 1965.
Item 8. Redemption or Repurchase of Registrant's Shares
A shareholder has the right to redeem fund shares by delivering to
First Data Investor Services Group, BOS725, P. 0. Box 1559, Boston, MA 02104,
either share certificates, or a stock power if no certificates have been issued,
in good order for transfer, with a separate written request for redemption.
Redemption will be made at the net asset value next computed after such
delivery. Good order means that the certificates or stock powers 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 acceptable to First Data Investor Services Group. 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. Payment will be made within seven days of the receipt
of the aforementioned documents.
In addition to the redemption of shares in the manner described above,
the Registrant, for the convenience of its shareholders, has authorized Eaton
Vance to act as its agent in the repurchase of shares. Eaton Vance will normally
accept orders to repurchase shares by wire or telephone from investment dealers
for their customers at the net asset value next computed after receipt of the
order by the dealer if such order is received by Eaton Vance prior to its close
of business that day. It is the dealer's responsibility to promptly transmit the
repurchase order to Eaton Vance. These repurchase arrangements do not involve a
charge to the shareholder by either the Registrant or its agent; however,
investment dealers may make a charge to the shareholder. Payment will be made
within seven days of the receipt of an order to repurchase provided that the
certificates, or a stock power if no certificates have been issued, have been
delivered to First Data Investor Services Group in good order as described
above.
The Registrant reserves the right to pay the redemption or repurchase
price in whole or in part by a distribution of portfolio securities in lieu of
cash if, in the opinion of management, it seems advisable to do so; normally,
when the redemption or repurchase price equals or exceeds $2,500 portfolio
securities will be used by the Registrant. Any portfolio securities so
distributed will be valued at the figure at which they were appraised in
computing the net asset value of Registrant's shares. If the portfolio
securities so distributed are sold by the redeeming shareholder he or she will
incur brokerage commissions or other transaction costs in connection with such
sale.
The net asset value is determined by Investors Bank & Trust Company
("IBT")(as agent for the Registrant) in the manner authorized by the Directors
of the Registrant. Briefly, this determination is made as of the close of
trading (normally at 4:00 P.M. New York time) on the New York Stock Exchange
(the "Exchange") each business day on which the Exchange is open for trading,
and is accomplished by dividing the number of outstanding shares of the
Registrant into its net worth (the excess of its investment in the Portfolio
over its liabilities).
Item 9. Pending Legal Proceeding
Inapplicable.
<PAGE>
PART B
INFORMATION REQUIRED IN A STATEMENT OF ADDITIONAL INFORMATION
Item 10. Cover Page
Inapplicable.
Item 11. Table of Contents
Inapplicable.
Item 12. General Information and History
Until October 31, 1995, the Registrant invested in a portfolio of
securities. Since then, it invests in the Portfolio.
Item 13. Investment Objectives and Policies
(a) - (c) The Registrant incorporates the information set forth under
Item 13 of the Portfolio's Registration Statement herein by reference.
(d) Inapplicable.
Item 14. Management of the Fund
The Registrant's Directors 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 Director and officer is 24 Federal Street, Boston,
Massachusetts, 02110, which is also the address of the Registrant's investment
advisor, Eaton Vance Management ("Eaton Vance"); Eaton Vance's wholly-owned
subsidiary, Boston Management and Research ("BMR"); Eaton Vance's parent, Eaton
Vance Corp. ("EVC"); and of Eaton Vance's and BMR's Trustees, Eaton Vance, Inc.
("EV"). Eaton Vance and EV are both wholly-owned subsidiaries of EVC. Those
directors and officers who are "interested persons" of the Registrant, Eaton
Vance, BMR, EVC, or EV as defined in the 1940 Act, by virtue of their
affiliation with or stockholdings of any one or more of, the registrant, Eaton
Vance, BMR, EVC or EV are indicated by an asterisk(*).
<PAGE>
Item 14. (a) and (b)
(1) (2) (3)
Position Held Principal Occupations
Name and Address with Registrant during Past 5 Years
- ---------------- --------------- -------------------
Landon T. Clay (69)* President & Chairman of the Board and
Director Director of EVC and EV;
Chairman, Eaton Vance,
and BMR.
Donald R. Dwight (64) Director President, Dwight Partners,
Clover Mill Lane Inc. (since 1988) (a corporate
Lyme, New Hampshire relations and communications
company); Chairman of the
Board of Newspapers of New
England, Inc. (since 1983).
Samuel L. Hayes, III (61) Director Jacob H. Schiff, Professor
Harvard University Graduate of Investment Banking
School of Business Harvard University Graduate
Administration School of Business
Soldiers Field Road Administration.
Boston, Massachusetts
Norton H. Reamer (60) Director President and Director, United
One International Place Asset Management Corporation
Boston, Massachusetts (a holding company owning
institutional investment
management firms); Chairman,
President and Director, UAM Funds
(mutual funds).
John L. Thorndike (69) Director Director, Fiduciary Trust
175 Federal Street Company.
Boston, Massachusetts
Jack L. Treynor (66) Director Investment Adviser and
504 Via Almar Consultant.
Palos Verdes Estates,
California
James B. Hawkes (54) Vice President Executive Vice President and
Director, EVC and EV;
Executive Vice President of
Eaton Vance and BMR.
Duncan W. Richardson (38) Vice President Vice President, Eaton Vance,
EV and BMR.
<PAGE>
Item 14. (a) and (b) Continued
(1) (2) (3)
Position Held Principal Occupations
Name and Address with Registrant during Past 5 Years
- ---------------- --------------- -------------------
Thomas Otis (64) Clerk Vice President and Secretary,
EVC, Eaton Vance, EV and BMR.
James L. O'Connor (50) Treasurer Vice President, Eaton Vance,
EV and BMR.
Janet E. Sanders (60) Assistant Treasurer Vice President, Eaton Vance,
& Assistant Clerk EV and BMR.
(since 2/26/90)
A. John Murphy (33) Assistant Clerk Assistant Vice President,
(since 3/27/95) Eaton Vance, BMR and EV
(since 3/1/94)
employee of Eaton
Vance (since March, 1993);
State Regulations Supervisor,
The Boston Company (1991-1993);
Registration Specialist,
Fidelity Management &
Research Co. (1986-1991).
Eric G. Woodbury (38) Assistant Clerk Vice President of Eaton Vance,
(since 6/19/95) BMR and EV and employee of
Eaton Vance (since February,
1993); formerly associate at
Dechert, Price & Rhoads and
Gaston Snow & Ely Bartlett.
Messrs. Thorndike (Chairman), Hayes and Reamer are members of
the Special Committee of the Board of Directors of the Registrant. The Special
Committee's functions include a continuous review of the Registrant's investment
advisory agreement with the investment adviser, making recommendations to the
Board regarding the compensation of those Directors who are not members of the
investment adviser's organization, and making recommendations to the Board
regarding candidates to fill vacancies, as and when they occur, in the ranks of
those Directors who are not "interested persons" of the Registrant or the
investment adviser.
Messrs. Treynor (Chairman) and Dwight are members of the Audit
Committee of the Board of Directors. The Audit Committee's functions include
making recommendations to the Board regarding the selection of the independent
public accountants, and reviewing with such accountants and the Treasurer of the
Registrant 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 Registrant.
Item 14. (c)
The fees and expenses of the Directors of the Registrant who are not
members of the Eaton Vance organization (noninterested Directors) are paid by
the Registrant. (The Directors of the Registrant who are members of the Eaton
Vance organization receive no compensation from the Registrant.) During the
fiscal year ended October 31, 1995, the noninterested Directors of the
Registrant received the following compensation in their capacities as Directors
from the Registrant, and, for the year ended December 31, 1995, received the
following compensation in their capacities as Directors and/or Trustees from the
funds in the Eaton Vance fund complex(1):
Aggregate
Compensation Total Compensation
Name from Registrant from Trust and Fund Complex
---- ---------------- ---------------------------
Donald R.
Dwight $ 1,244(2) $ 135,000(4)
Samuel L.
Hayes, III 1,297(3) 150,000(5)
Norton H.
Reamer 1,329 135,000
John L.
Thorndike 1,412 140,000
Jack L.
Treynor 1,318 140,000
(1) The Eaton Vance fund complex consists of 219 registered investment companies
or series thereof.
(2) Includes $417 deferred compensation.
(3) Includes $393 deferred compensation.
(4) Includes $35,000 deferred compensation.
(5) Includes $33,750 deferred compensation.
Directors of the Registrant 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 Deferred Compensation Plan (the "Plan"). Under
the Plan, an eligible Director may elect to have his deferred fees invested by
the Registrant in the shares of one or more funds in the Eaton Vance Family of
Funds, and the amount paid to the Directors under the Plan will be determined
based upon the performance of such investments. Deferral of Directors' fees in
accordance with the Plan will have a negligible effect on the Registrant's
assets, liabilities, and net income per share, and will not obligate the
Registrant to retain the services of any Director or obligate the Registrant to
pay any particular level of compensation to the Director. The Registrant does
not have a retirement plan for its Directors.
Item 15. Control Persons and Principal Holders of Securities
(a) Inapplicable.
(b) As of January 31, 1996, the Directors and officers of the
Registrant, as a group, owned in the aggregate less than 1% of the outstanding
shares of the Registrant. To the knowledge of the Registrant, no person owned
beneficially or of record 5% or more of its stock, except the following
shareholders who owned of record the percentages of outstanding shares indicated
after their names, as of January 31, 1996: Patterson & Co., Philadelphia, PA
(11.10%); Leonard G. Carpenter, C. Curtis Lee and David R. Brink, Trustees U/A
dated 11/16/79 Geraldine K. Carpenter Living Trust, Wayzata, MN (9.56%); and
Arthur F. Albert, Trustee Arthur F. Albert Trust U/A dated 10/3/78, Glenview, IL
(6.23%).
Item 16. Investment Advisory and Other Services
(a) - (c) Inapplicable.
(d) Eaton Vance serves as Administrator of the Registrant, but
currently receives no compensation for providing administrative services to the
Registrant. Under its agreement with the Registrant, Eaton Vance has been
engaged to administer the Fund's affairs, subject to the supervision of the
Board of Directors, and shall furnish for the use of the Registrant office space
and all necessary office facilities, equipment and personnel for administering
the affairs of the Registrant.
(e)(f) and (g) Inapplicable.
(h) and (i) Investors Bank & Trust Company ("IBT"), 89 South Street,
Boston, Massachusetts, has been the custodian of the Registrant since 1985. IBT
has custody of all cash and securities of the Registrant, maintains the
Registrant'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 Registrant's investments,
receives and disburses all funds, and performs various other ministerial duties
upon receipt of proper instructions from the Registrant. 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 the
Registrant's 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 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 invstment company's average daily collected balances for the week.
Landon T. Clay, a Director of EVC and an officer, Trustee or Director of other
members of the Eaton Vance organization, owns approximately 13% of the voting
stock of Investors Financial Services Corp., the holding company parent of IBT.
For the fiscal year ended October 31, 1995, IBT was paid $52,555.
Deloitte & Touche LLP, 125 Summer Street, Boston, Massachusetts are the
independent certified public accountants for the Registrant. As such they
provide customary professional services in connection with the audit function
for a management investment company, including services leading to the
expression of an opinion on the financial statements in the annual report to
shareholders and preparation of the Registrant's federal tax returns.
Item 17. Brokerage Allocation and Other Practices
(a) - (e) Inapplicable.
Item 18. Capital Stock and Other Securities
(a) No change from the information set forth in Item 18(a) of Form
N-1A, filed as Amendment No. 8 to the Registration Statement under the 1940 Act,
File No. 811-1339, which information is incorporated herein by reference.
(b) Inapplicable.
Item 19. Purchase, Redemption and Pricing of Securities Being Offered
(a) No change from the information set forth in Item 19(a) of Form
N-1A, filed as Amendment No. 8 to the Registration Statement under the 1940 Act,
File No. 811-1339, which information is incorporated herein by reference.
(b) The net asset value of each share of the Registrant outstanding is
determined by the Board of Directors or its delegate not less frequently than
once on each business day (which term means each day on which the net asset
value of shares of the Registrant is required to be computed by the provisions
of the 1940 Act or rules or regulations promulgated thereunder) and the net
asset value as so determined shall become effective at such time as the Board of
Directors or its delegate may determine. The Board of Directors may delegate any
of its powers and duties with respect to the determination of net asset value
and appraisal of assets and liabilities. Currently the net asset value is
determined once each business day by IBT, as agent for the Registrant, as of the
close of the Exchange. The Board of Directors or its delegate may cause the net
asset value per share last determined to be determined again, and may determine
the time when such redetermined net asset value may become effective. Any such
redetermination may be made by appraisal, or by estimate based upon changes in
the market value of representative or selected securities or in recognized
market averages or in other standard market data since the last determination.
The Board of Directors may declare a suspension of the determination of
net asset value for the whole or any part of any period with respect to which an
open-end investment company may declare such a suspension not inconsistent with
the provisions of the 1940 Act or rules or regulations promulgated thereunder.
Such suspension shall take effect at such time as the Board of Directors shall
specify but not later than the close of business on the business day next
following the declaration, and thereafter there shall be no determination of net
asset value until the Board of Directors shall declare the suspension at an end,
except that the suspension shall terminate in any EVent when the conditions
precedent prescribed by the 1940 Act or rules or regulations promulgated
thereunder to the declaration of such a suspension shall have terminated.
The net asset value of each share of the Registrant as of any
particular time shall be the quotient (adjusted to the nearer cent) obtained by
dividing the value, as of such time, of the net assets of the Registrant (i.e.
the value of the assets of the Registrant less its actual and accrued liability
exclusive of capital and surplus) by the total number of shares outstanding
(exclusive of treasury shares) at such time, all as determined by the Board of
Directors or its delegate. In appraising the liabilities of the Corporation the
Board of Directors or its delegate may include in liabilities such reserves for
taxes, estimated expenses and contingencies as the Board or its delegate deems
fair and reasonable under the circumstances. All determinations of net asset
value and appraisals of assets and liabilities made in good faith by the Board
of Directors or its delegate shall be binding and conclusive upon all
stockholders and other persons interested.
The Registrant may issue shares at net asset value in connection with
any merger or consolidation with, or acquisition of the assets of, any
investment company or personal holding company, subject to the requirements of
the 1940 Act.
The information set forth under Item 8 hereof is incorporated herein by
reference.
(c) Inapplicable.
Item 20. Tax Status
Under the provisions of Subchapter M of the Internal Revenue Code, an
investment company, such as the Registrant, which distributes to its
shareholders for any year substantially all of its net investment income pays no
federal income or excise taxes on such income as to that year. The Registrant
met the requirements of Subchapter M for the taxable year ended October 31, 1995
and intends to meet such requirement for the taxable year ending October 31,
1996.
Dividends from net investment income are paid at least quarterly. These
dividends are paid in shares of the Registrant computed at net asset value,
subject to an option to each shareholder to elect to be paid in cash. Such
dividends from net investment income are taxable to the shareholders at ordinary
income rates for federal income tax purposes.
Net realized long-term capital gains are normally retained by the
Registrant, and the Registrant pays the federal tax thereon on behalf of
shareholders. When this is done the shareholder includes in his personal income
tax return his proportionate share of such gains, takes a credit for the payment
of taxes thereon, and increases the tax cost basis of his shares by an amount
equal to such gains less the taxes paid. Due to regulations imposed by the
Internal Revenue Service the Registrant is required to distribute net realized
long-term capital gains (computed on the basis of the one-year period ending on
October 31 of such year) and 100% of any income from the present year that was
not paid out during such year and on which the Fund was not taxed. The
Registrant therefore reserves the right to distribute such capital gains when
required.
The Registrant currently plans to continue to pay dividends at least
quarterly from its net investment income and retain realized net long-term
capital gains as outlined above. However, Registrant reserves the right, in its
discretion, to distribute such capital gains in shares of the Registrant at net
asset value, or at the option of each shareholder, in cash.
Item 21. Underwriters
Inapplicable, inasmuch as Registrant does not make a continuous
offering of its shares.
Item 22. Calculation of Performance Data
Inapplicable.
Item 23. Financial Statements
Registrant incorporates by reference the audited financial information
for the Fund contained in the Fund's Annual Report to shareholders for the
fiscal year ended October 31, 1995 as previously filed electronically with the
Securities and Exchange Commission on December 19, 1995 (Accession Number
0000950156-95-000873).
<PAGE>
PART C
OTHER INFORMATION
Item 24. Financial Statements and Exhibits
(a) INCLUDED IN ITEM 23 OF THE REGISTRANT'S STATEMENT OF ADDITIONAL
INFORMATION (Form N-1A, Part B) INCORPORATED BY REFERENCE TO THE ANNUAL
REPORT FOR CAPITAL EXCHANGE FUND, INC., DATED October 31, 1995, AS
FILED ELECTRONICALLY ON DECEMBER 19, 1995 WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO SECTION 30(b)(2) OF THE INVESTMENT
COMPANY ACT OF 1940 (Accession No. 0000950156-95-000873) which contain
the following:
Portfolio of Investments, October 31, 1995
Statement of Assets and Liabilities, October 31, 1995
Statement of Operations For The Year Ended October 31, 1995
Statement of Changes In Net Assets For Each of The Two Years
In The Period Ended October 31, 1995
Financial Highlights For Each of The Five Years In the Period
Ended October 31, 1995
Notes to Financial Statements
Independent Auditors' Report
(b) Exhibits:
(1) Articles of Organization Filed as Exhibit No. 1.1 to Post-
incorporating all amendments Effective Amendment No. 7 to
to date and currently in effect Registration Statement on Form N-1,
File No. 811-1339 and incorporated
herein by reference.
(2)(a) By-Laws incorporating all Filed herewith.
amendments through
March 28, 1984
(b) Amendment to By-Laws Filed herewith.
dated December 15, 1995
(3) Not Applicable
(4) Specimen of each security Filed as Exhibit No. 4a to Post-
issued by the Registrant Effective Amendment No. 6 to
Registration Statement on Form
N-1, File No. 811-1339 and
incorporated herein by
reference.
<PAGE>
Item 24. (b) Continued
(5) Investment Advisory Filed as Exhibit No. 5
Agreement with Eaton Vance to Post-Effective Amendment No. 14
Management dated to Registration Statement on Form
November 1, 1990 N-1A, File No. 811-1339 and
incorporated herein by reference.
(6) Not Applicable
(7) Not Applicable
(8)(a) Custodian Agreement dated Filed herewith.
December 17, 1990
(b) Amendment to Custodian Agreement Filed herewith.
dated October 23, 1995
(9) Not Applicable
(10) Legal Opinion of Gaston, Filed as Exhibit No. 9B to
Snow, Motley & Holt, dated Amendment No. 4 to
February 14, 1966 Registration Statement on
Form S-5, File No. 2-24149 and
and incorporated herein
by reference.
(11) Not Applicable
(12) Not Applicable
(13) Not Applicable
(14) Not Applicable
(15) Not Applicable
(16) Not Applicable
Item 25. Persons Controlled by or under Common Control with Registrant
Not Applicable
Item 26. Number of Holders of Securities
(1) (2)
Number of Record
Title of Class Holders
-------------- ----------------
Capital Stock 339
$1.00 par value as of January 31, 1996
Item 27. Indemnification
No change from the information set forth in Item 27 of Form N-1A,
filed as Post-Effective Amendment No. 8 to the Registration Statement under the
1940 Act, File No. 811-1339, which information is incorporated herewith by
reference.
Item 28. Business and Other Connections of Investment Adviser
In addition to acting as investment adviser to the Portfolio, Boston
Management and Research ("BMR") (or an affiliate) also act as investment adviser
under other agreements for the following investment companies and also various
individual and institutional clients, with combined assets under management of
approximately $16 billion. Such investment companies are:
Alabama Municipals Portfolio
Arizona Limited Maturity Municipals Portfolio
Arizona Municipals Portfolio
Arkansas Municipals Portfolio
California Limited Maturity Municipals Portfolio
California Municipals Portfolio
Capital Exchange Fund, Inc.
Cash Management Portfolio
Colorado Municipals Portfolio
Connecticut Limited Maturity Municipals Portfolio
Connecticut Municipals Portfolio
Depositors Fund of Boston, Inc.
Diversification Fund, Inc.
EV Marathon Gold & Natural Resources Fund
Eaton Vance Income Fund of Boston
Eaton Vance Municipal Bond Fund L.P.
Eaton Vance Prime Rate Reserves
Eaton Vance Short-Term Treasury Fund
Eaton Vance Tax Free Reserves
Emerging Markets Portfolio
Fiduciary Exchange Fund, Inc.
Florida Insured Municipals Portfolio
Florida Limited Maturity Municipals Portfolio
Florida Municipals Portfolio
Georgia Municipals Portfolio
Government Obligations Portfolio
Greater China Growth Portfolio
Growth Portfolio
Hawaii Municipals Portfolio
High Income Portfolio
High Yield Municipals Portfolio
Information Age Portfolio
Investors Portfolio
Kansas Municipals Portfolio
Kentucky Municipals Portfolio
Louisiana Municipals Portfolio
Maryland Municipals Portfolio
Massachusetts Limited Maturity Municipals Portfolio
Massachusetts Municipals Portfolio
Michigan Limited Maturity Municipals Portfolio
Michigan Municipals Portfolio
Minnesota Municipals Portfolio
Mississippi Municipals Portfolio
Missouri Municipals Portfolio
National Limited Maturity Municipals Portfolio
National Municipals Portfolio
New Jersey Limited Maturity Municipals Portfolio
New Jersey Municipals Portfolio
New York Limited Maturity Municipals Portfolio
New York Municipals Portfolio
North Carolina Municipals Portfolio
Ohio Limited Maturity Municipals Portfolio
Ohio Municipals Portfolio
Oregon Municipals Portfolio
Pennsylvania Limited Maturity Municipals Portfolio
Pennsylvania Municipals Portfolio
Rhode Island Municipals Portfolio
Second Fiduciary Exchange Fund, Inc.
Senior Debt Portfolio
South Asia Portfolio
South Carolina Municipals Portfolio
Special Investment Portfolio
Stock Portfolio
Strategic Income Portfolio
Tax-Managed Growth Portfolio
Tennessee Municipals Portfolio
Texas Municipals Portfolio
Total Return Portfolio
The Exchange Fund of Boston, Inc.
Vance, Sanders Exchange Fund (A California Limited Partnership)
Virginia Municipals Portfolio
West Virginia Municipals Portfolio
Eaton Vance Distributors, Inc., a wholly-owned subsidiary of Eaton
Vance is the principal underwriter for each of the investment companies named
below:
EV Classic California Municipals Fund
EV Classic Connecticut Municipals Fund
EV Classic Florida Insured Municipals Fund
EV Classic Florida Limited Maturity Municipals Fund
EV Classic Florida Municipals Fund
EV Classic Government Obligations Fund
EV Classic Greater China Growth Fund
EV Classic Growth Fund
EV Classic High Income Fund
EV Classic Investors Fund
EV Classic Massachusetts Limited Maturity Municipals Fund
EV Classic National Limited Maturity Municipals Fund
EV Classic National Municipals Fund
EV Classic New Jersey Municipals Fund
EV Classic New York Limited Maturity Municipals Fund
EV Classic New York Municipals Fund
EV Classic Pennsylvania Limited Maturity Municipals Fund
EV Classic Pennsylvania Municipals Fund
EV Classic Rhode Island Municipals Fund
EV Classic Senior Floating-Rate Fund
EV Classic Special Equities Fund
EV Classic Stock Fund
EV Classic Strategic Income Fund
EV Classic Total Return Fund
EV Marathon Alabama Municipals Fund
EV Marathon Arizona Limited Maturity Municipals Fund
EV Marathon Arizona Municipals Fund
EV Marathon Arkansas Municipals Fund
EV Marathon California Limited Maturity Municipals Fund
EV Marathon California Municipals Fund
EV Marathon Colorado Municipals Fund
EV Marathon Connecticut Limited Maturity Municipals Fund
EV Marathon Connecticut Municipals Fund
EV Marathon Emerging Markets Fund
EV Marathon Florida Insured Municipals Fund
EV Marathon Florida Limited Maturity Municipals Fund
EV Marathon Florida Municipals Fund
EV Marathon Georgia Municipals Fund
EV Marathon Gold & Natural Resources Fund
EV Marathon Government Obligations Fund
EV Marathon Greater China Growth Fund
EV Marathon Greater India Fund
EV Marathon Growth Fund
EV Marathon Hawaii Municipals Fund
EV Marathon High Income Fund
EV Marathon High Yield Municipals Fund
EV Marathon Information Age Fund
EV Marathon Investors Fund
EV Marathon Kansas Municipals Fund
EV Marathon Kentucky Municipals Fund
EV Marathon Louisiana Municipals Fund
EV Marathon Maryland Municipals Fund
EV Marathon Massachusetts Limited Maturity Municipals Fund
EV Marathon Massachusetts Municipals Fund
EV Marathon Michigan Limited Maturity Municipals Fund
EV Marathon Michigan Municipals Fund
EV Marathon Minnesota Municipals Fund
EV Marathon Mississippi Municipals Fund
EV Marathon Missouri Municipals Fund
EV Marathon National Limited Maturity Municipals Fund
EV Marathon National Municipals Fund
EV Marathon New Jersey Limited Maturity Municipals Fund
EV Marathon New Jersey Municipals Fund
EV Marathon New York Limited Maturity Municipals Fund
EV Marathon New York Municipals Fund
EV Marathon North Carolina Municipals Fund
EV Marathon Ohio Limited Maturity Municipals Fund
EV Marathon Ohio Municipals Fund
EV Marathon Oregon Municipals Fund
EV Marathon Pennsylvania Limited Maturity Municipals Fund
EV Marathon Pennsylvania Municipals Fund
EV Marathon Rhode Island Municipals Fund
EV Marathon South Carolina Municipals Fund
EV Marathon Special Equities Fund
EV Marathon Stock Fund
EV Marathon Strategic Income Fund
EV Marathon Tennessee Municipals Fund
EV Marathon Texas Municipals Fund
EV Marathon Total Return Fund
EV Marathon Virginia Limited Maturity Municipals Fund
EV Marathon Virginia Municipals Fund
EV Marathon West Virginia Municipals Fund
EV Traditional Alabama Municipals Fund
EV Traditional Arizona Municipals Fund
EV Traditional Arkansas Municipals Fund
EV Traditional California Limited Maturity Municipals Fund
EV Traditional California Municipals Fund
EV Traditional Colorado Municipals Fund
EV Traditional Connecticut Limited Maturity Municipals Fund
EV Traditional Connecticut Municipals Fund
EV Traditional Emerging Markets Fund
EV Traditional Florida Insured Municipals Fund
EV Traditional Florida Limited Maturity Municipals Fund
EV Traditional Florida Municipals Fund
EV Traditional Georgia Municipals Fund
EV Traditional Government Obligations Fund
EV Traditional Greater China Growth Fund
EV Traditional Greater India Fund
EV Traditional Growth Fund
EV Traditional Hawaii Municipals Fund
EV Traditional High Yield Municipals Fund
Eaton Vance Income Fund of Boston
EV Traditional Information Age Fund
EV Traditional Investors Fund
Eaton Vance Municipal Bond Fund L.P.
EV Traditional Kansas Municipals Fund
EV Traditional Kentucky Municipals Fund
EV Traditional Louisiana Municipals Fund
EV Traditional Maryland Municipals Fund
EV Traditional Massachusetts Municipals Fund
EV Traditional Michigan Limited Maturity Municipals Fund
EV Traditional Michigan Municipals Fund
EV Traditional Minnesota Municipals Fund
EV Traditional Mississippi Municipals Fund
EV Traditional Missouri Municipals Fund
EV Traditional National Limited Maturity Municipals Fund
EV Traditional National Municipals Fund
EV Traditional New Jersey Limited Maturity Municipals Fund
EV Traditional New Jersey Municipals Fund
EV Traditional New York Limited Maturity Municipals Fund
EV Traditional New York Municipals Fund
EV Traditional North Carolina Municipals Fund
EV Traditional Ohio Limited Maturity Municipals Fund
EV Traditional Ohio Municipals Fund
EV Traditional Oregon Municipals Fund
EV Traditional Pennsylvania Municipals Fund
EV Traditional South Carolina Municipals Fund
EV Traditional Special Equities Fund
EV Traditional Stock Fund
EV Traditional Tennessee Municipals Fund
EV Traditional Texas Municipals Fund
EV Traditional Total Return Fund
EV Traditional Virginia Municipals Fund
EV Traditional West Virginia Municipals Fund
Eaton Vance Cash Management Fund
Eaton Vance Liquid Assets Fund
Eaton Vance Money Market Fund
Eaton Vance Prime Rate Reserves
Eaton Vance Short-Term Treasury Fund
Eaton Vance Tax Free Reserves
Massachusetts Municipal Bond Portfolio
EVC owns all of the stock of Energex Energy Corporation, which engages
in oil and gas operations. In addition, Eaton Vance owns all the stock of
Northeast Properties, Inc., which is engaged in real estate investment,
consulting and management. EVC owns all of the stock of Fulcrum Management, Inc.
and MinVen, Inc. which are engaged in the development of precious metal
properties. EVC also owns 24% of the Class A shares of Lloyd George Management
(B.V.I.) Limited, a registered investment adviser. EVC, Eaton Vance, BMR and EV
may also enter into other businesses.
Item 29. Principal Underwriters
Inapplicable inasmuch as Registrant does not make a continuous
offering of its shares.
Item 30. Location of Accounts and Records
All applicable accounts, books, and documents required to be maintained
by 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, 89 South Street, Boston,
MA 02111, and the Registrant's transfer agent, First Data Investor Services
Group, 53 State Street, Boston, Massachusetts 02104 with the exception of
certain corporate documents and portfolio trading documents as prescribed and
listed in Rules 31a-1(b), (4), (5), (6), (7), (9), (10), and (11) which are in
the possession and custody of the Registrant's Treasurer at 24 Federal Street,
Boston, Massachusetts 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 the Portfolio's investment
adviser, BMR, 24 Federal Street, Boston, Massachusetts 02110.
Item 31. Management Services
Inapplicable
Item 32. Undertakings
Inapplicable
<PAGE>
SIGNATURE
Pursuant to the requirements of the Investment Company Act of 1940, the
Registrant has duly caused this Amendment to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of Boston and Commonwealth of
Massachusetts, on the 28th day of February, 1996.
CAPITAL EXCHANGE FUND, INC.
By /s/ A. John Murphy
-------------------------------
A. John Murphy, Assistant Clerk
<PAGE>
SIGNATURE
Tax-Managed Growth Portfolio has duly caused this Amendment to the
Registration Statement on Form N-1A of Capital Exchange Fund, Inc. to be signed
on its behalf by the undersigned, thereunto duly authorized in the City of
Boston and Commonwealth of Massachusetts, on the 28th day of February, 1996.
TAX-MANAGED GROWTH PORTFOLIO
By /s/ Landon T. Clay
-------------------------------
Landon T. Clay, President
<PAGE>
EXHIBIT INDEX
The following exhibits are filed as part of this Registration Statement or
incorporated herein by reference pursuant to General Instruction E of Form N-1A.
Page in Sequential
Exhibit No. Description Numbering System
- ----------- ------------ ------------------
(2)(a) By-Laws incorporating all amendments
through March 28, 1984.
(b) Amendment to By-Laws dated
December 15, 1995.
(8)(a) Custodian Agreement dated
December 17, 1990.
(b) Amendment to Custodian Agreement
dated October 23, 1995.
<PAGE>
EXHIBIT 99.2(a)
BY-LAWS
OF
CAPITAL EXCHANGE FUND, INC.
ARTICLE I.
Offices.
Section 1. Principal Office. Until changed by the Board of Directors,
the principal office of the Corporation in the Commonwealth of Massachusetts
shall be in the City of Boston, County of Suffolk.
Section 2. Other Offices. The Corporation may have offices at such
other places without as well as within the Commonwealth as the Board of
Directors may from time to time determine.
ARTICLE II.
Meetings of Shareholders.
Section 1. Annual Meeting. A meeting of the shareholders for the
purpose of electing a Board of Directors, and for the transaction of such other
business as may properly be brought before the meeting, shall be held annually
on the third Thursday in March at 11:00 A.M., Boston Time, beginning in 1966
unless said day be a legal holiday, in which case the annual meeting shall be
held on the next day thereafter not a legal holiday. The purposes for which the
annual meeting is to be held, in addition to those prescribed by law, the
Articles of Organization (hereinafter called "the Articles") or the By-Laws, may
be specified by the President or the Board of Directors.
In the event that such annual meeting is omitted by oversight or
otherwise on the date herein provided for, a subsequent meeting may be held in
place thereof and any business transacted or elections held at such meeting
shall be as valid as if transacted or held at the annual meeting. Such
subsequent meeting shall be called in the same manner and as provided for
special shareholders' meetings.
Section 2. Special Meetings. Special meetings of the shareholders may
be called at any time by the President; and shall be called by the President or
any Vice President or the Secretary at the request, in writing or by resolution,
of a majority of the Board of Directors, or at the written request of the holder
or holders of ten per cent (10%) or more of the total number of shares of the
then issued and outstanding capital stock of the Corporation entitled to vote at
such meeting. Any such request shall state the purposes of the proposed meeting.
Section 3. Place of Meeting. Meetings of the shareholders of the
Corporation shall be held at the office of the Corporation in Boston,
Massachusetts unless a different place within the United States is fixed by the
Board of Directors and stated as specified in the respective notices or waivers
of notice thereof.
Section 4. 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 Clerk of the Corporation 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 Corporation, at least twenty
(20) days before the time fixed for the meeting, and the person giving such
notice shall make affidavit thereto. If any shareholder shall have failed to
inform the Corporation of his post office address, no notice need be sent to
him. No notice need be given to any stockholder if a written waiver of notice,
executed before or after the meeting by the stockholder or his attorney
thereunto authorized, is filed with the records of the meeting.
Section 5. 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 capital stock of the
Corporation entitled to vote at such meeting.
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 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 6. Organization. At every meeting of the shareholders, the
Chairman of the Board of Directors, or in his absence the President, or in the
absence of the Chairman of the Board of Directors and the President, a Vice
President shall act as chairman of the meeting. In the absence of the Chairman
of the Board of Directors and the President and the Vice Presidents, the holders
of a majority in number of shares of the shareholders present in person or by
proxy shall by vote elect a chairman of the meeting. The Clerk, or in his
absence, an Assistant Clerk, or in the absence of the Clerk and an Assistant
Clerk, any person appointed by the chairman of the meeting shall act as
secretary of the meeting.
Section 7. Voting. At each meeting of the shareholders every
shareholder of the Corporation shall be entitled to one (1) vote in person or by
proxy for each share of the then issued and outstanding capital stock of the
Corporation 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 Corporation 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.
All elections of Directors 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 stockholder 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 Articles or by these By-Laws all
matters shall be decided by a majority of the votes cast, as hereinabove
provided, entitled to vote thereon.
Section 8. Proxies. Any shareholder entitled to vote upon any matter at
any meeting of the shareholders may so vote by proxy; but no proxy which is
dated more than six months before the meeting named therein shall be accepted
and no such proxy shall be valid after the final adjournment of such meeting.
Every proxy shall be in writing subscribed by the shareholder or his duly
authorized attorney and shall be dated, but need not be sealed, witnessed or
acknowledged. Proxies shall be delivered to the Clerk of the Corporation or
person acting as secretary of the meeting before being voted. A proxy with
respect to stock held in the name of two or more persons shall be valid if
executed by one of them unless at or prior to exercise of the proxy the
Corporation receives a specific written notice to the contrary from any one of
them. A proxy purporting to be executed by or on behalf of a stockholder shall
be deemed valid unless challenged at or prior to its exercise.
ARTICLE III.
Board of Directors.
Section 1. Number of Directors. The number of Directors of the
Corporation shall be fixed for the ensuing year at the first meeting of
shareholders and at each annual meeting or meeting held in lieu thereof, and
shall be not less than five nor more than fifteen. Directors need not be
shareholders.
The number of Directors of the Corporation may, from time to time, be
increased or decreased within the above limits by vote of a majority of the
Directors; provided that no reduction in the number of Directors shall affect
any Director whose term of office shall not have expired.
The term of office of each Director shall be from the time of his
election and qualification until the annual meeting next succeeding his election
and until his successor shall have been duly elected and shall have qualified.
Section 2. Powers and Duties. The business, property and affairs of the
Corporation shall be managed and controlled by or under the direction of the
Board of Directors. In each year, at a meeting to be held as soon as practicable
after the election of Directors, the Board shall elect the officers of the
Corporation as provided in Section 1 of Article V hereof. In addition to the
powers and authority by these By-Laws expressly conferred upon it, the Board of
Directors may exercise all such powers of the Corporation and do all such lawful
acts and things as are not by statute or by the Articles or by these By- Laws
directed or required to be exercised or done by the shareholders and may elect
or appoint or provide for the appointment of such other officers and agents as
it may deem necessary or desirable; provided, however, that the Board of
Directors may in its discretion leave vacant for any period any office or
offices other than those of President, Treasurer and Clerk.
Section 3. Organization. At every meeting of the Board of Directors,
the Chairman shall preside and in the absence of the Chairman, the President
shall preside. In the absence of both the Chairman and the President a chairman
chosen by a majority of the Directors present shall preside. The Secretary, or
in his absence, the Clerk, or an Assistant Secretary, or, in the absence of the
Clerk and an Assistant Secretary, any person appointed by the chairman of the
meeting shall keep the records of the meeting.
Section 4. Vacancies and Resignations. Any vacancy in the Board of
Directors because of death, resignation, increase in number or otherwise, may be
filled either by the Board of Directors at any meeting thereof by a vote of a
majority of the Directors in office at the time of such meeting or by vote of
the shareholders at an annual meeting or a special meeting called for that
purpose, but subject to compliance with Section 16(a) of the Investment Company
Act of 1940. Any Director may resign his office at any time by delivering his
resignation in writing to the President or to the Clerk or Secretary of the
Corporation. Such resignation shall take effect at the date of its receipt or at
any later time specified therein; and the acceptance of such resignation, unless
required by the terms thereof, shall not be necessary to make such resignation
effective.
Section 5. Place of Meetings, Offices and Transfer Books. The Board of
Directors may hold its meetings and have an office or offices outside of the
Commonwealth of Massachusetts, and may, to the extent permitted by law, keep the
books and records of the Corporation, and provide for the issue, transfer and
registration of its stock, outside of said State at such places as may, from
time to time, be designated by the Board of Directors.
Section 6. Meetings of the Board. The Board of Directors may in its
discretion provide for regular or stated meetings of the Board of Directors.
Notice of regular or stated meetings need not be given. Meetings of the Board of
Directors other than regular or stated meetings shall be held whenever called by
the Chairman, or in the absence of the Chairman, by the President, or by any one
of the Directors at the time being in office. Notice of the time and place of
each meeting other than regular or stated meetings shall be given by the
Secretary or the Clerk or an Assistant Clerk or by the officer or Director
calling the meeting and shall be mailed to each Director at least two (2) days
before the meeting, or shall be telegraphed, cabled, or wirelessed to each
Director at his business address or personally delivered to him at least one (1)
day before the meeting; but such notice may be waived by all the Directors.
Notice of a meeting need not be given to any Director, 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 Director 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. If it is
impractical for the Directors to meet in person the Board may meet by means of a
telephone conference circuit to which all Directors are connected or of which
all Directors shall have waived notice, which meetings shall be deemed to have
been held at a place designated by the Board at the meeting.
Section 7. Quorum and Manner of Acting. A majority of the Directors in
office shall be present in person at any regular or special meeting of the Board
of Directors in order to constitute a quorum for the transaction of business at
such meeting and (except as otherwise required by the Articles, by these By-Laws
or by statute) the act of a majority of the Directors present at any such
meeting, at which a quorum is present, shall be the act of the Board of
Directors. In the absence of a quorum, a majority of the Directors present may
adjourn the meeting from time to time until a quorum shall be present. Notice of
any adjourned meeting need not be given.
Section 8. Removal of Directors. Any Director may be removed at any
time with or without cause, upon the affirmative vote of the holders of a
majority of the shares of the then issued and outstanding stock of the
Corporation.
ARTICLE IV.
Committees and Advisory Board.
Section 1. Executive and Other Committees. The Board of Directors, by
vote of a majority of the whole Board, may elect an Executive Committee to
consist of not less than three to hold office until the annual meeting of the
shareholders next succeeding their election, which shall have the power to
conduct the current and ordinary business of the Corporation while the Board is
not session, including the purchase and sale of securities and the designation
of securities to be delivered upon redemption of shares of the Corporation, and
such other powers of the Board as the Board may, from time to time, delegate to
them except those powers which by law, the Articles or these By-Laws they are
prohibited from delegating. The Board may also elect from their own number other
Committees from time to time, the number composing such Committees, the powers
conferred upon the same (but subject to the same limitation) and the term of
membership on such Committees to be determined by vote of the Directors. The
Board of Directors may designate a chairman for any such Committee; in the
absence of such designation the Committee may elect its own chairman.
Section 2. Meetings, Quorum and Manner of Acting. The Board of
Directors may (1) provide for stated meetings of any Committee, (2) specify the
manner of calling and notice required for special meetings of any Committee, (3)
specify the number of members of a Committee required to constitute a quorum and
the number of members of a Committee required to exercise specified powers
delegated to such Committee, (4) authorize the taking of decisions to exercise
specified powers by written assent of the requisite number of members of a
Committee without a meeting, (5) authorize the members of a Committee to meet by
means of a telephone conference circuit to which all members are connected or of
which all members shall have waived notice.
The Executive Committee shall keep regular minutes of its meetings and
records of decisions taken without a meeting, cause them to be recorded in a
book designated for that purpose and kept in the office of the Corporation and
shall submit such minutes and other records of their proceedings to the Board of
Directors at the regular or special meetings of the Board.
Section 3. Advisory Board. The Directors may appoint an Advisory Board
to consist in the first instance of not less than three members. Members of such
Advisory Board shall not be directors or officers and need not be shareholders.
Members of this Board shall hold office for such period as the Directors may by
resolution provide. Any member of such Board may resign therefrom by a written
instrument signed by him which shall take effect upon delivery to the Directors.
The Advisory Board shall have no legal powers and shall not perform the
functions of directors in any manner, said Board being intended merely to act in
an advisory capacity. Such Advisory Board shall meet at such times and upon such
notice as the Board of Directors may by resolution provide.
ARTICLE V.
Officers.
Section 1. General Provisions. The Officers of the Corporation shall be
a Chairman of the Board of Directors, and a President, a Treasurer and a Clerk,
who shall be elected by the Board of Directors at the first meeting of the Board
following the annual meeting of shareholders. The Board of Directors may elect
or appoint such other officers or agents as the business of the Corporation may
require including one or more Vice Presidents, a Secretary and one or more
Assistant Treasurers and one or more Assistant Secretaries and one or more
Assistant Clerks. The Board of Directors may delegate to any officer or
committee the power to appoint any subordinate officers or agents.
Section 2. Term of Office and Qualifications. Except as otherwise
provided by law, by the Articles or by the By-Laws, the President, the Treasurer
and the Clerk shall hold office until the first meeting of the Board of
Directors following the annual meeting of shareholders and thereafter until his
successor shall have been duly elected and qualified, and all other officers
shall hold office until such first meeting unless a shorter term is specified in
the vote electing or appointing them. The Chairman of the Board of Directors and
the President shall be Directors of the Corporation. The Clerk and Treasurer or
the Clerk and Secretary or all three may be the same person. A Vice President
and the Treasurer or a Vice President and the Clerk and the Secretary may be the
same person, but the offices of Vice President, Clerk and Treasurer shall not be
held by the same person. The President shall hold no other office. Except as
above provided, any two offices may be held by the same person.
Section 3. Removal. The Board of Directors, at a regular meeting or any
special meeting of the Board, may remove any director with cause and any officer
with or without cause. Any officer or agent appointed by any officer or
committee may be removed, either with or without cause, by such appointing
officer or committee. A director or officer may be removed for cause only after
a reasonable notice and opportunity to be heard before the body proposing to
remove him.
Section 4. Powers and Duties of the President. In the absence of the
Chairman of the Board of Directors, the President shall preside at all meetings
of the shareholders. Subject to the Board of Directors and to any Committees of
the Board, within their respective spheres, as provided by the Board of
Directors, he shall at all times exercise a general supervision and direction
over the affairs of the Corporation. He shall have the power to employ attorneys
and counsel for the Corporation and to employ such subordinate officers, agents,
clerks and employees as he may find necessary to transact the business of the
Corporation. 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 Corporation. The President
shall have such other powers and duties as, from time to time, may be conferred
upon or assigned to him by Board of Directors.
Section 5. Chairman of the Board of Directors. The Chairman of the
Board of Directors shall be chosen from among the Directors of this Corporation.
When present he shall preside at the meetings of the shareholders and of the
Board of Directors. He may call meetings of the Board of Directors and of any
committee thereof whenever he deems it necessary. He shall be an executive
officer of this Corporation and shall have, with the President, general
supervision over the business and policies of this Corporation, subject to the
limitations imposed upon the President, as provided in Section 4 of this Article
V.
Section 6. Powers and Duties of Vice Presidents. In the absence or
disability of the Chairman of the Board of Directors and the President, the Vice
President, or (if there be more than one Vice President) any Vice President
designated by the Board of Directors shall perform all the duties and may
exercise any of the powers of the President, subject to the control of the
Board. Each Vice President shall perform such other duties as may be assigned to
him, from time to time, by the Board or by the President.
Section 7. Powers and Duties of the Treasurer. The Treasurer shall be
the principal financial and accounting officer of the Corporation. He shall
maintain the securities and similar investments of the Corporation in accordance
with Article XIII of these By-Laws. He shall render a statement of the condition
of the finances of the Corporation to the Board of Directors as often as it
shall require the same and he shall in general perform all the duties incident
to the office of Treasurer and such other duties as from time to time may be
assigned to him by the Board of Directors. The Treasurer shall give a bond for
the faithful discharge of his duties, if required so to do by the Board of
Directors, in such sum and with such surety or sureties as the Board of
Directors shall require.
Section 8. Powers and Duties of the Clerk. The Clerk shall be a
resident of the Commonwealth of Massachusetts unless the Corporation has a
resident agent appointed for the purpose of service of process. The Clerk shall
keep the minutes of all meetings of the shareholders, in proper books provided
for that purpose; he shall have custody of the corporate seal of the
Corporation; he shall have charge of the stock transfer books, lists and records
unless the same are in the charge of a transfer agent in the Commonwealth of
Massachusetts appointed pursuant to Section 3 of Article VI; he or the Secretary
shall attend to the giving and serving of all notices by the Corporation in
accordance with the provisions of these By-Laws and as required by law; and
subject to these By-Laws, he shall in general perform all duties incident to the
office of Clerk and such other duties as from time to time may be assigned to
him by the Board of Directors.
Section 9. Powers and Duties of Secretary. The Secretary, if any, shall
keep the minutes of all meetings of the Board of Directors. He shall perform
such other duties and have such other powers in addition to those specified in
these By-Laws as the Board of Directors shall from time to time designate. If
there be no Secretary or Assistant Secretary, the Clerk shall perform the duties
of Secretary.
Section 10. Powers and Duties of Assistant Treasurers. In the absence
or disability of the Treasurer, any Assistant Treasurer designated by the Board
of Directors shall perform all the duties, and may exercise any of the powers,
of the Treasurer; and the Assistant Treasurers shall perform such other duties
as from time to time may be assigned to them by the Board of Directors. Each
Assistant Treasurer shall give a bond for the faithful discharge of his duties,
if required so to do by the Board of Directors, in such sum and with such surety
or sureties as the Board of Directors shall require.
Section 11. Powers and Duties of Assistant Clerk. In the absence or
disability of the Clerk, any Assistant Clerk designated by the Board of
Directors shall perform all the duties, and may exercise any of the powers, of
the Clerk; and the Assistant Clerks shall perform such other duties as from time
to time may be assigned to them by the Board of Directors.
Section 12. Powers and Duties of Assistant Secretaries. In the absence
or disability of the Secretary, any Assistant Secretary designated by the Board
of Directors shall perform all of the duties, and may exercise any of the powers
of the Secretary; and the Assistant Secretaries shall perform such other duties
as from time to time may be assigned to them by the Board of Directors.
Section 13. Compensation of Officers, Directors and Members of Advisory
Board. Subject to Article V of the Articles the compensation of the officers,
Directors and members of the Advisory Board shall be fixed from time to time by
the Board of Directors or, in the case of officers, by any committee or officer
upon whom such power may be conferred by the Board of Directors. No officer
shall be prevented from receiving such compensation as such officer by reason of
the fact that he is also a Director of the Corporation.
ARTICLE VI.
Corporate Stock.
Section 1. Certificates of Stock. Certificates for shares of the
capital stock of the Corporation shall be in such form as shall be approved by
the Board of Directors. They shall be numbered in the order of their issue and
shall be signed by, or in the name of the Corporation by, the President or any
one of the Vice Presidents and by the Treasurer or an Assistant Treasurer and
may but need not be sealed with its seal; provided, however, that where such
certificate is signed by a transfer agent or a transfer clerk acting on behalf
of the Corporation or a registrar other than a Director, officer or employee of
the Corporation, the signature of any such President, Vice President, Treasurer
or Assistant Treasurer and the corporate 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 Corporation whether because of
death, resignation or otherwise, before such certificate or certificates shall
have been delivered by the Corporation, such certificate or certificates may
nevertheless be adopted by the Corporation 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 Corporation.
Section 2. Transfer of Stock. Transfers of shares of capital stock of
the Corporation shall be made only on the books of the Corporation by the holder
thereof or by his attorney thereunto authorized by a power of attorney duly
executed and filed with the Clerk of the Corporation or a transfer agent, and on
the surrender of the certificate or certificates for such shares.
Section 3. Transfer Agent and Registrar; Regulations. The Corporation
shall, if and whenever the Board of Directors shall so determine, maintain one
or more transfer officers or agencies each in charge of a transfer agent
designated by the Board of Directors where the shares of the capital stock of
the Corporation shall be directly transferable, and also one or more registry
offices, each in charge of a registrar, designated by the Board of Directors
where such shares of stock shall be registered, and no certificate for shares of
the capital stock of the Corporation 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 shall be in the Commonwealth of Massachusetts and shall have charge of the
stock transfer books, lists and records, which shall be kept in Massachusetts in
an office which shall be deemed to be the stock transfer office of the
Corporation. The Board of Directors may also make such additional rules and
regulations as it may deem expedient concerning the issue, transfer and
registration of certificates for shares of the capital stock of the Corporation.
Section 4. Closing of Transfer Books and Fixing Record Date. The Board
of Directors 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 stock on the books
of the Corporation after the record date; or without fixing such record date the
Board of Directors may for any of such purposes close the transfer books for all
or any part of such period.
Section 5. Lost, Destroyed or Mutilated Certificates. The holder of any
stock of the Corporation shall immediately notify the Corporation of any loss,
destruction or mutilation of the certificate therefor, and the Board of
Directors may, in its 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 Board of Directors shall so determine, upon the delivery of a bond
in such form and in such sum and with such surety or sureties as the Board may
direct, to indemnify the Corporation against any claim that may be made against
it on account of the alleged loss or destruction of any such certificate.
Section 6. Record of Holder of Stock. The Corporation shall be entitled
to treat the person in whose name any share of stock is registered on the books
of the Corporation 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 Corporation shall begin the first day of
November in each year and shall end on the thirty-first day of October in the
following calendar year provided that the Board of Directors may from time to
time change the fiscal year.
ARTICLE VIII
Seal.
The Board of Directors shall adopt a corporate seal which shall be in
such form and shall have such inscription thereon as the Board of Directors may
from time to time prescribe.
ARTICLE IX.
Waivers of Notice.
Whenever any notice whatever is required to be given under the
provisions of any statute of the Commonwealth of Massachusetts, under the
provisions of the Articles or these By-Laws, a waiver thereof in writing, signed
by the person or persons entitled to said notice, whether before or after the
time stated therein, shall be deemed equivalent thereto. A notice shall be
deemed to have been telegraphed, cabled or wirelessed for the purposes of these
By-Laws when it has been delivered to a representative of any telegraph, cable
or wireless company with instructions that it be telegraphed, cabled or
wirelessed. Any notice shall be deemed to be given at the time when the same
shall be mailed, telegraphed, cabled or wirelessed.
ARTICLE X.
Investments; Borrowing and Pledging.
Section 1. The authority of the Board of Directors to invest the funds
of the Corporation, to borrow money and to pledge securities as provided in the
statement of purposes contained in the Articles shall be subject to the
following restrictions and limitations:
(A) The Corporation shall not purchase the securities of any
issuer if such purchase at the time thereof would cause more than five
per cent (5%) of the total assets of the Corporation (taken at market
value) to be invested in the securities of such issuer. The foregoing
limitation shall not apply to investments in Government securities as
defined in the Investment Company Act of 1940.
(B) The Corporation shall not purchase securities of any
issuer if such purchase at the time thereof would cause more than ten
per cent (10%) of any class of securities of such issuer to be held by
the Corporation. For this purpose all outstanding bonds and other
evidences of indebtedness shall be deemed to be a single class of
securities of the issuer, and all kinds of stock of an issuer preferred
over the common stock as to dividends or in liquidation shall be deemed
to constitute a single class regardless of relative priorities, series
designations, conversion rights and other differences.
(C) The Corporation shall not purchase securities issued by
any other investment company or investment trust except by purchase in
the open market where no commission or profit to a sponsor or dealer
results from such purchase other than the customary broker's
commission, or except when such purchase, though not made in the open
market, is part of a plan of merger or consolidation.
(D) The Corporation shall not purchase securities of any
issuer which has a record of less than three (3) years' continuous
operation including, however, in such three (3) years the operation of
any predecessor company or companies, partnership or individual
enterprise if the issuer whose securities are proposed as an investment
for funds of the Corporation has come into existence as a result of a
merger, consolidation, reorganization, or the purchase of substantially
all the assets of such predecessor company or companies, partnership or
individual enterprise, provided that nothing in this sub-paragraph D
shall prevent
(1) the purchase of securities of a company
substantially all of whose assets are
(a) securities of one or more companies
which have had a record of three (3) years'
continuous operation, or
(b) assets of an independent division of
another company, which division has had a record
of three (3) years' continuous operation;
(2) the purchase of securities of (a) a public
utility subject to supervision or regulation as to its rates
or charges by a commission or board or officer of the United
States or of any state or territory thereof, or of the
government of Canada or of any province or territory of Canada
or (b) companies operating or formed for the purpose of
operating pipe or transmission lines for the transmission of
oil, gas or electric energy or like products,
provided that no security shall be purchased pursuant to exception (1)
or (2) of this sub-paragraph D if such purchase at the time thereof
will cause more than five per cent (5%) of the total assets of the Fund
(taken at market value) to be invested in securities of companies which
would not then be eligible for purchase but for those exceptions.
(E) The Corporation shall not 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 Director of
the Corporation, or is a member, officer, director or trustee of the
Investment Adviser of the Corporation, if after the purchase of the
securities of such issuer by the Corporation one or more of such
persons owns beneficially more than one-half of one per cent (1/2%) of
the shares or securities, or both (all taken at market value), of such
issuer, and such persons owning more than one-half of one per cent
(1/2%) of such shares or securities together own beneficially more than
five per cent (5%) of such shares or securities, or both (all taken at
market value).
(F) The Corporation shall not borrow amounts in excess of ten
per cent (10%) of the gross assets of the Corporation taken at cost
determined in accordance with good accounting practice, and no
borrowing shall be undertaken except as a temporary measure for
extraordinary or emergency purposes.
(G) The Corporation shall not pledge, mortgage, or hypothecate
the assets of the Corporation.
(H) The Corporation shall not
(a) purchase any securities or evidences of interest
therein on "margin", that is to say in a transaction in which
it has borrowed all or a portion of the purchase price and
pledged the purchased securities of evidences of interest
therein as collateral for the amount so borrowed;
(b) sell or contract to sell any security which it
does not own unless by virtue of its ownership of other
securities it has at the time of sale a right to obtain
securities equivalent in kind and amount to the securities
sold and provided that if such right is conditional the sale
is made upon the same conditions.
ARTICLE XI.
Miscellaneous.
(A) No officer, Director or member of the Advisory Board of the
Corporation, and no member, officer, Director or trustee of the Investment
Adviser of the Corporation (as that term is defined in the Investment Company
Act of 1940) or of the underwriter of the Corporation, and no Investment Adviser
or underwriter of the Corporation shall take long or short positions in the
securities issued by the Corporation.
(1) The foregoing provision shall not prevent the underwriter
from purchasing from the Corporation shares of the Corporation 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
Corporation are entered with the Corporation or the Custodian promptly
upon receipt by the underwriter of purchase orders for such shares,
unless the underwriter is otherwise instructed by its customer
(2) The foregoing provision shall not prevent the underwriter
from purchasing shares of the Corporation as agent for the account of
the Corporation.
(3) The foregoing provision shall not prevent the purchase
from the Corporation or from the underwriter of shares issued by the
Corporation by any officer, Director, or member of the Advisory Board
of the Corporation or by any member, officer, Director or trustee of
the Investment Adviser of the Corporation or of the underwriter of the
Corporation 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 Corporation
generally at the moment of such purchase.
(B) The Corporation shall not lend assets of the Corporation to any
officer, Director or member of the Advisory Board of the Corporation, or to any
member, officer, Director or trustee of, or person financially interested in the
Investment Adviser of the Corporation, or in the underwriter of the Corporation,
or to the Investment Adviser of the Corporation or to the underwriter of the
Corporation.
(C) The Corporation shall not impose any restriction upon the transfer
of the shares of the Corporation but this requirement shall not prevent the
charging of customary transfer agent fees.
(D) In the event that at any time less than a majority of the Directors
of the corporation holding office at that time were elected by the shareholders,
the Board of Directors or any officer authorized by the By-Laws to call a
special meeting of the shareholders shall forthwith cause to be held as promptly
as possible and in any event within sixty days a special meeting of the
shareholders for the purpose of electing Directors to fill any existing
vacancies in the Board of Directors; provided, however, that no such meeting
need be held during the sixty-day period preceding the date specified in the
By-Laws for the holding of the annual meeting of the shareholders of the
Corporation, if permitted by an order of the Securities and Exchange Commission
or succeeding governmental authority exempting the delay of such meeting from
the prohibition contained in Section 16(a) of the Investment Company Act of
1940.
ARTICLE XII.
Report to Shareholders.
The Board of Directors shall at least semi-annually submit to the
shareholders a written financial report of the transactions of the Corporation,
including financial statements which shall at least annually be certified by
independent public accountants. Such reports shall clearly set forth, in
addition to the information required by the Investment Company Act of 1940 to be
furnished to shareholders of registered open-end investment companies, a
statement of all amounts paid to any security dealers, legal counsel, transfer
agent, disbursing agent, registrar or custodian, where such payments are made to
a firm, association, trust or corporation having a member, officer, Director or
trustee who is an officer, Director of member of the Advisory Board of the
Corporation.
ARTICLE XIII.
Maintenance of Assets
The Corporation shall place and maintain its securities and similar
investments in the custody of one or more of the following:
(1) one or more banks, trust companies, banking
institutions or other qualified depositories,
(2) one or more companies each of which is a member of a
national securities exchange as defined in the Securities Exchange Act
of 1934, or
(3) the Corporation,
in each case subject to the Investment Company Act of 1940 and all applicable
rules, regulations and orders as the Securities and Exchange Commission may from
time to time prescribe, adopt or issue. Any such custodian may be employed to
keep all or any part of the books and accounts of the Corporation, to furnish
clerical and accounting services to the Corporation and to determine or compute
the net asset value of the shares of the Corporation, and shall perform such
acts and services upon such terms and conditions as shall be approved from time
to time by the Board of Directors of the Corporation. The Corporation may also
employ one or more subcustodians or authorize any such custodian to employ one
or more subcustodians, in each case to perform such acts and services upon such
terms and conditions as shall be approved from time to time by the Board of
Directors of the Corporation. Subject to the Investment Company Act of 1940 and
all applicable rules, regulations and orders as said Commission may from time to
time prescribe, adopt or issue, the Corporation may (or permit any such
custodian or subcustodian to) deposit all or any part of the securities owned by
the Corporation in one or more systems for the central handling of securities
(including, without limitation, securities depositories, clearing agencies and
book-entry systems), 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.
ARTICLE XIV.
Amendments.
The By-Laws, or any of them, of the Corporation may be altered, amended
or repealed or new By-Laws may be adopted by the vote of the holders of a
majority in number of shares of the stock of the Corporation issued, outstanding
and entitled to vote, at any annual meeting, or at a special meeting called for
the purpose. The Board of Directors of the Corporation, at any regular or
special meeting of the Board, may, by a majority vote of the whole Board, adopt
or amend supplementary By-Laws provided that notice of the proposed
supplementary By-Law shall have been given at a previous meeting of the Board,
and provided further that no such supplementary By-Law shall alter, amend or
repeal any By-Law in effect at the time of such action. Not later than the time
of giving notice of the meeting of shareholders next following the making,
amending or repealing by the Board of any such supplementary By-Law, notice
thereof stating the substance of such change shall be given to all shareholders
entitled to vote on amending the By-Laws. Any such action of the Board of
Directors may be amended or repealed by the shareholders, as aforesaid, at any
annual meeting or any special meeting called for that purpose.
<PAGE>
EXHIBIT 99.2(b)
AMENDMENT TO
BY-LAWS
OF
CAPITAL EXCHANGE FUND, INC.
December 15, 1995
Pursuant to ARTICLE XIV of the BY-LAWS of Capital Exchange Fund, Inc., (the
"Fund") upon vote of a majority of the Directors of the Fund SECTION 1. of
ARTICLE II of the BY-LAWS of the Fund was amended to read as follows:
SECTION 1. Annual Meeting. A meeting of the shareholders for the purpose of
electing a Board of Directors, the Treasurer and the Clerk, and for the
transaction of such other business as may properly be brought before the
meeting, shall be held annually, on the second Wednesday in April, unless said
day be a legal holiday, in which case the annual meeting shall be held on the
next day thereafter not a legal holiday.
********************
<PAGE>
EXHIBIT 99.8(a)
Capital Exchange Fund, Inc.
24 Federal Street
Boston, MA 02110
(617) 482-8260
December 17, 1990
Capital Exchange Fund, Inc. 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.
CAPITAL EXCHANGE FUND, INC.
BY: /s/ Landon T. Clay
----------------------------
President
Accepted and agreed to:
INVESTORS BANK & TRUST COMPANY
BY: /s/ Henry M. Joyce
------------------------------------
Title: Vice President
<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
-i-
<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
transferred 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.
* * * * *
<PAGE>
EXHIBIT 99.8(b)
AMENDMENT TO
MASTER CUSTODIAN AGREEMENT
BETWEEN
EATON VANCE GROUP OF FUNDS
AND
INVESTORS BANK & TRUST COMPANY
This Amendment, dated as of October 23, 1995, is made to the MASTER
CUSTODIAN AGREEMENT (the "Agreement") between each investment company for which
Eaton Vance Management acts as investment adviser or administrator which has
adopted the Agreement (the "Funds") and Investors Bank & Trust Company (the
"Custodian") pursuant to Section 10 of the Agreement.
The Funds and the Custodian agree that Section 10 of the Agreement
shall, as of October 23, 1995, be amended to read as follows:
Unless otherwise defined herein, terms which are defined in the
Agreement and used herein are so used as so defined.
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 by either party after August
31, 2000 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 in the event
the Custodian assigns this Agreement to another party without consent of the
noninterested Trustees of the Funds, 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).
This Agreement may be amended at any time by the written agreement of
the parties hereto. If a majority of the non-interested trustees of any of the
Funds determines that the performance of the Custodian has been unsatisfactory
or adverse to the interests of shareholders of any Fund or Funds or that the
terms of the Agreement are no longer consistent with publicly available industry
standards, then the Fund or Funds shall give written notice to the Custodian of
such determination and the Custodian shall have 60 days to (1) correct such
performance to the satisfaction of the non-interested trustees or (2)
renegotiate terms which are satisfactory to the non-interested trustees of the
Funds. If the conditions of the preceding sentence are not met then the Fund or
Funds may terminate this Agreement on sixty (60) days written notice.
The Board of the Fund shall, forthwith, upon giving or receiving notice
of termination of this Agreement, appoint as successor custodian, a bank or
trust company having the qualifications required by the Investment Company Act
of 1940 and the Rules thereunder. 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 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 meeting the above required qualifications,
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.
Except as expressly provided herein, the Agreement shall remain
unchanged and in full force and effect.
<PAGE>
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.
CAPITAL EXCHANGE FUND, INC. EATON VANCE MUNICIPALS TRUST II
DEPOSITORS FUND OF BOSTON, INC. EATON VANCE MUTUAL FUNDS TRUST
DIVERSIFICATION FUND, INC. EATON VANCE PRIME RATE RESERVES
EATON VANCE EQUITY-INCOME TRUST EATON VANCE SPECIAL INVESTMENT TRUST
EATON VANCE GROWTH TRUST EV CLASSIC SENIOR FLOATING-RATE FUND
EATON VANCE INVESTMENT FUND, INC. FIDUCIARY EXCHANGE FUND, INC.
EATON VANCE INVESTMENT TRUST SECOND FIDUCIARY EXCHANGE FUND, INC.
EATON VANCE MUNICIPAL BOND FUND L.P. THE EXCHANGE FUND OF BOSTON, INC.
EATON VANCE MUNICIPALS TRUST VANCE, SANDERS EXCHANGE FUND
By: /s/ James L. O'Connor
---------------------------
Treasurer
INVESTORS BANK & TRUST COMPANY
By: /s/ Michael Rogers
---------------------------
<TABLE> <S> <C>
<ARTICLE> 6
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> OCT-31-1995
<PERIOD-END> OCT-31-1995
<INVESTMENTS-AT-COST> 95,499
<INVESTMENTS-AT-VALUE> 115,474
<RECEIVABLES> 155
<ASSETS-OTHER> 122
<OTHER-ITEMS-ASSETS> 0
<TOTAL-ASSETS> 115,751
<PAYABLE-FOR-SECURITIES> 0
<SENIOR-LONG-TERM-DEBT> 0
<OTHER-ITEMS-LIABILITIES> 1,108
<TOTAL-LIABILITIES> 1,108
<SENIOR-EQUITY> 0
<PAID-IN-CAPITAL-COMMON> 0
<SHARES-COMMON-STOCK> 0
<SHARES-COMMON-PRIOR> 0
<ACCUMULATED-NII-CURRENT> 0
<OVERDISTRIBUTION-NII> 0
<ACCUMULATED-NET-GAINS> 28,467
<OVERDISTRIBUTION-GAINS> 0
<ACCUM-APPREC-OR-DEPREC> 95,499
<NET-ASSETS> 114,643
<DIVIDEND-INCOME> 2,009
<INTEREST-INCOME> 102
<OTHER-INCOME> 0
<EXPENSES-NET> 768
<NET-INVESTMENT-INCOME> 1,343
<REALIZED-GAINS-CURRENT> 6,830
<APPREC-INCREASE-CURRENT> 21,643
<NET-CHANGE-FROM-OPS> 29,817
<EQUALIZATION> 0
<DISTRIBUTIONS-OF-INCOME> 0
<DISTRIBUTIONS-OF-GAINS> 0
<DISTRIBUTIONS-OTHER> 0
<NUMBER-OF-SHARES-SOLD> 0
<NUMBER-OF-SHARES-REDEEMED> 0
<SHARES-REINVESTED> 0
<NET-CHANGE-IN-ASSETS> 0
<ACCUMULATED-NII-PRIOR> 0
<ACCUMULATED-GAINS-PRIOR> 0
<OVERDISTRIB-NII-PRIOR> 0
<OVERDIST-NET-GAINS-PRIOR> 0
<GROSS-ADVISORY-FEES> 634
<INTEREST-EXPENSE> 0
<GROSS-EXPENSE> 768
<AVERAGE-NET-ASSETS> 114,643
<PER-SHARE-NAV-BEGIN> 0
<PER-SHARE-NII> 0
<PER-SHARE-GAIN-APPREC> 0
<PER-SHARE-DIVIDEND> 0
<PER-SHARE-DISTRIBUTIONS> 0
<RETURNS-OF-CAPITAL> 0
<PER-SHARE-NAV-END> 0
<EXPENSE-RATIO> 0
<AVG-DEBT-OUTSTANDING> 0
<AVG-DEBT-PER-SHARE> 0
</TABLE>
