As filed with the Securities and Exchange Commission on July 31, 1995
1940 Act File No. 811-1295
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
DEPOSITORS FUND OF BOSTON, INC.
(Exact Name of Registrant as Specified in Charter)
24 Federal Street, Boston, Massachusetts 02110
(Address of Principal Executive Offices)
(617) 482-8260
(Registrant's Telephone Number including Area Code)
THOMAS OTIS, Clerk
24 Federal Street, Boston, Massachusetts 02110
(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) The Registrant is an open-end diversified management
investment company organized on November 25, 1964, as a Massachusetts
corporation.
(ii) The investment objective of the Registrant is to seek long-term
growth of capital and of income. The Registrant has the authority to invest
all or a portion of its assets in bonds and other evidences of indebtedness,
preferred stocks and common stocks. While reserving freedom of action to
invest in any type of such securities, it is the present policy of the
Registrant to invest in common stocks, securities convertible into common
stocks and temporary investments in debt short-term obligations of governments,
banks and corporations.
The investment objective and policies set forth in this paragraph (ii) may
not be changed without the vote of the holders of a majority of the
Registrant's outstanding voting securities. Additional fundamental policies
are set forth under Item 13.
(b) No discussion or disclosure required.
(c) The Registrant generally remains fully invested in a diversified
equity portfolio which cannot eliminate the usual risks of common stock
ownership. For this reason, and because securities fluctuate in value and
income distributed by corporations varies with their earnings and dividend
policies, the Registrant cannot give assurance that its investment objective
will be achieved.
Item 5. Management of the Fund
(a) The investment adviser manages the Registrant and administers its
affairs on a day-to-day basis subject to the direction of, and overall control
by, the Board of Directors of the Registrant.
(b) (i) Eaton Vance Management ("Eaton Vance" or the "Investment
Adviser")
24 Federal Street
Boston, Massachusetts 02110
Eaton Vance, its affiliates and its predecessors have more than 60
years experience in the investment management field, and Eaton Vance or its
affiliates currently acts as investment adviser and/or provides administrative
and management services to investment companies and various individual and
institutional clients with combined assets under management of approximately
$15 billion. Eaton Vance is a wholly-owned subsidiary of Eaton Vance Corp.
("EVC"), a publicly-held holding company which through subsidiaries and
affiliates is engaged in investment management and marketing activities, real
estate investment, consulting and management, oil and gas operations, fiduciary
and banking services and development of precious metal properties.
(ii) Pursuant to the Investment Advisory Agreement, Eaton Vance
provides investment advisory and administrative services and is responsible for
overall management of Registrant's business affairs subject to the direction of
and control by the Board of Directors.
(iii) The Registrant pays the Investment Adviser a monthly fee
of 5/96 of 1% (equivalent to 5/8 of 1% annually) of the average monthly net
assets of the Registrant throughout the month. The fee for the fiscal year
ended March 31, 1995 was $350,354 (equivalent to 5/8 of 1% of Registrant's
average net assets for the year).
(c) Thomas E. Faust, Jr. has acted as the Registrant's portfolio
manager since 1990. Mr. Faust is a Vice President of Eaton Vance.
(d) Not applicable
(e) The transfer and dividend disbursing agent is The Shareholder
Services Group, Inc., BOS725, P. 0. Box 1559, Boston, Massachusetts 02104.
(f) The Registrant's ratio of expenses to average net assets for the
fiscal year ended March 31, 1995 was 0.83%.
(g) Not applicable
Item 6. Capital Stock and Other Securities
(a)(i)(ii)(iii) The Registrant has one class of stock, consisting of
shares of common stock, par value $1.00 per share, all having equal voting
rights. All shares participate equally in earnings, dividends and assets.
Shares of the Registrant are fully paid, nonassessable and fully transferable
and have no pre-emptive or conversion rights.
(b) Not applicable
(c) Not applicable
(d) Not applicable
(e) Shareholder inquiries should be forwarded to the Registrant's
office at 24 Federal Street, Boston, Massachusetts 02110.
(f) Dividends from net investment income are paid 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. Net
realized long-term capital gains are retained by the Registrant.
(g)(i) Since the Registrant intends to distribute substantially all
of its net investment income to shareholders, it is not expected that the
Registrant will be required to pay any federal income taxes on such income.
However, shareholders of the Registrant normally will have to pay federal
income taxes and any state or local taxes, on the dividends from investment
income.
(ii) Since the Registrant retains any net realized long-term capital gain
and pays the federal tax thereon on behalf of shareholders, the shareholder
includes in his personal federal 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. Registrant provides each shareholder with information regarding the
shareholder's federal income tax treatment of any undistributed realized long-
term capital gain retained by Registrant.
(iii) After the end of each calendar year, each shareholder receives
information for tax purposes regarding the dividends paid during the year and
the amount of dividends eligible for the dividends received exclusion for
individuals.
(h) Not applicable
Item 7. Purchase of Securities Being Offered
Inapplicable. Registrant has not offered its shares for sale
subsequent to its initial public offering in 1964.
Item 8. Redemption or Repurchase of Registrant's Shares
A shareholder has the right to redeem fund shares by delivering to
The Shareholder Services Group, Inc., BOS725, P. 0. Box 1559, Boston, MA 02104,
during its business hours a written request in good order plus any share
certificates, or stock powers if no certificates have been issued. Redemption
will be made at the net asset value next computed after such delivery. Good
order means that all relevant documents must be endorsed by the record owner(s)
exactly as the shares are registered and the signature(s) must be guaranteed by
a member of either the Securities Transfer Association's STAMP program or the
New York Stock Exchange's Medallion Signature Program, or certain banks,
savings and loan institutions, credit unions, securities dealers, securities
exchanges, clearing agencies and registered securities associations as required
by a regulation of the Securities and Exchange Commission (the "Commission")
acceptable to The Shareholder Services Group, Inc. In addition, in some cases,
good order may require the furnishing of additional documentation if shares are
registered in the name of a corporation, partnership or fiduciary.
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 The Shareholder Services
Group, Inc. 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 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 assets over its liabilities).
Investments listed on national securities exchanges or in the NASDAQ National
Market are valued at closing sale prices. Listed or unlisted investments for
which closing sale prices are not available are valued at the closing bid
prices. Short-term obligations, maturing in sixty days or less, are valued at
amortized cost, which approximates value.
Item 9. Pending Legal Proceeding
Not applicable
<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
Inapplicable
Item 13. Investment Objectives and Policies
(a) The responses to Item 4 hereof are incorporated herein by
reference.
(b) Recital of Fundamental Policies:
(1) Not applicable.
(2) Article X, Section 1, Paragraph (H) of Registrant's by-laws
provide as follows:
"(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 or the purchase price and pledged
the purchased securities or 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 an provided that if such
right is conditional the sale is made upon the same conditions."
(3) Article X, Section 1, Paragraphs (F) and (G) of Registrant's by-
laws provide as follows:
"(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."
(4) It is not Registrant's policy to act as underwriter of securities
issued by other persons.
(5) It is not the Registrant's policy to concentrate its investments
in any particular industry, but if it is deemed appropriate for the attainment
of the Registrant's investment objective, up to 25% of the value of its assets
may be invested in any one industry.
(6) It is not the policy of Registrant to purchase or sell real
estate.
(7) It is not the policy of Registrant to purchase or sell
commodities or commodity contracts.
(8) It is not Registrant's policy to make loans to other persons.
For these purposes, the purchase of a portion of an issue of bonds, debentures
or other debt securities of the type customarily purchased by institutional
investors, whether or not the purchase was made on the original issuance, is
not to be considered the making of a loan by the Registrant, nor shall time or
demand deposits with banks be so considered.
(9) It is not the policy of the Registrant to make investments for
the purpose of exercising control or management.
Article X, Section 1, Paragraphs (A) through (E) of the Registrant's
by-laws provide as follows:
"(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)."
(c) Not applicable
(d) The Registrant has not had a significant variation in the
portfolio turnover rate for the past two years and does not anticipate there
will be any significant variation in the future.
Item 14. Management of the Fund
(a) and (b)
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"); of 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 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(*).
<TABLE>
<CAPTION>
(1) (2) (3)
Position Held Principal Occupations
Name (Age) and Address with Registrant during Past 5 Years
<S> <C> <C>
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
Lyme, New Hampshire 03468 corporate relations and
communications company;
Chairman of the Board of New
Board of Newspapers of New
England, Inc. (since 1983).
Samuel L. Hayes, III(60) Director Jacob H. Schiff Professor
Harvard Graduate School of of Investment Banking,
Business Administration Harvard Graduate School of
Soldiers Field Road Business Administration.
Boston, Massachusetts 02163
Norton H. Reamer (59) Director President and Director,
One International Place United Asset Management
Boston, Massachusetts 02110 Corporation, a holding,
company owning institutional
investment management firms;
Chairman, President and
Director, The Regis Fund,
Inc. (mutual fund); Trustee
Union College (since January
1990).
John L. Thorndike (68) Director Director, Fiduciary Trust
175 Federal Street Company.
Boston, Massachusetts 02110
Jack L. Treynor (65) Director Investment Adviser and
504 Via Almar Consultant.
Palos Verdes Estates,
California 90274
James B. Hawkes (53) Vice President Executive Vice President
and Director, EVC and EV;
Executive Vice President of
Eaton Vance and BMR.
Duncan W. Richardson (37) Vice President Vice President, Eaton
Vance, EV and BMR.
Thomas Otis (63) 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 (59) Assistant Treasurer Vice President, Eaton
& Assistant Clerk Vance, EV and BMR.
James F. Alban (33) Assistant Treasurer Assistant Vice President,
(since 12/16/91) Eaton Vance and EV
(since 1/17/92 and
(8/11/92, respectively);
employee of Eaton
Vance (since 9/23/91);
Tax Consultant and Audit
Senior with Deloitte &
Touche LLP (1987 to 1991).
A. John Murphy (32) 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
(since 6/19/95) Vance, BMR and EV and
employee of Eaton Vance
(since February, 1993);
formerly, associate at
Dechart, Price & Rhoads and
Gaston Snow & Ely Bartlett.
</TABLE>
/R>
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.
(c) The fees and expenses of the Directors of the Fund who are not
members of the Eaton Vance organization (noninterested Directors) are paid by
the Fund. (The Directors of the Fund who are members of the Eaton Vance
organization receive no compensation from the Fund). During the fiscal year
ended March 31, 1995, the noninterested Directors of the Fund earned the
following compensation in their capacities as Directors from the Fund, and as
Directors and/or Trustees from the other funds in the Eaton Vance fund
complex(1):
Aggregate Total Compensation
Name from Fund from Trust and Fund Complex
Donald R.
Dwight $ 1,174(2) $135,000(4)
Samuel L.
Hayes, III 1,213(3) 147,500(5)
Norton H.
Reamer 1,258 135,000
John L.
Thorndike 1,322 140,000
Jack L.
Treynor 1,240 140,000
(1) The Eaton Vance fund complex consists of 205 registered investment
companies or series thereof.
(2) Includes $199 of deferred compensation.
(3) Includes $393 of deferred compensation.
(4) Includes $17,500 of deferred compensation.
(5) Includes $33,750 of deferred compensation.
Directors of the Fund that are not affiliated with the Investment Adviser
may elect to defer receipt of all or a percentage of their annual fees in
accordance with the terms of a Deferred Compensation Plan (the "Plan"). Under
the Plan, an eligible Director may elect to have his deferred fees invested by
the Fund in the shares of one or more funds in the Eaton Vance Family of Funds,
and the amount paid to the 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 a Fund's assets,
liabilities, and net income per share, and will not obligate the Fund to retain
the services of any Director or obligate the Fund to pay any particular level
of compensation to the Director.
<PAGE>
Item 15. Control Persons and Principal Holders of Securities
(a) Not applicable
(b) As of June 30, 1995, the Directors and officers of the Fund, 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 of record or
beneficially owned 5% or more of its stock, except the following shareholders
who owned of record the approximate percentage of outstanding shares indicated
after their names as of June 30, 1995: Walter S. Rosenberry, III, TR, U/A
dated 10/20/81 Sarah Maud W. Siversten, St. Paul, MN (10.7%); and Bank of
America & John H. McCormick, TTEES, A.L. McCormick 1991 Trust, dated 8/28/91
Account 10-10-022-552700, Los Angeles, CA U/A (9.2%). To the Fund's knowledge,
no other person owned of record or beneficially 5% or more of the Fund's
outstanding shares as of such date.
Item 16. Investment Advisory and Other Services
(a)(i) and (ii)
Eaton Vance, its affiliates and its predecessors have more than 60
years experience in the investment management field, and currently acts as
investment adviser and/or provides administrative and management services to
investment companies and various individual and institutional clients with
combined assets under management of approximately $15 billion.
Eaton Vance and EV are both wholly-owned subsidiaries of EVC. BMR is
a wholly-owned subsidiary of Eaton Vance. Eaton Vance and BMR are both
Massachusetts business trusts and EV is the trustee of Eaton Vance and BMR.
The Directors of EV are Landon T. Clay, H. Day Brigham, Jr., M. Dozier Gardner,
James B. Hawkes, and Benjamin A. Rowland, Jr. The Directors of EVC consist of
the same persons and John G. L. Cabot and Ralph Z. Sorenson. Mr. Clay is
chairman and Mr. Gardner is president and chief executive officer of EVC, Eaton
Vance, BMR and EV. All of the issued and outstanding shares of Eaton Vance and
of EV stock are owned by EVC. All of the issued and outstanding shares of BMR
are owned by Eaton Vance. All shares of the outstanding Voting Common Stock of
EVC are deposited in a Voting Trust which expires December 31, 1996, the Voting
Trustees of which are Messrs. Clay, Gardner, Hawkes, Rowland and Brigham. The
Voting Trustees have unrestricted voting rights for the election of Directors
of EVC. All of the outstanding voting trust receipts issued under said Voting
Trust are owned by certain of the officers of Eaton Vance and BMR who are also
officers and Directors of EVC and EV. As of June 30, 1995, Messrs. Clay,
Gardner and Hawkes each owned 24% of such voting trust receipts. Messrs.
Rowland and Brigham owned 15% and 13%, respectively, of such voting trust
receipts. Messrs. Clay, Hawkes and Otis, who are officers or Directors of the
Registrant, are members of the EVC, Eaton Vance, BMR and EV organizations.
Messrs. Alban, Murphy, Richardson, O'Connor, Woodbury, and Ms. Sanders who are
officers of the Registrant, are also members of the Eaton Vance, BMR and EV
organizations. See Item 14.
(iii) On July 23, 1982 a new Investment Advisory Agreement was
executed and the Registrant pays the Investment Adviser on the last day of each
month a fee of 5/96 of 1% (equivalent to 5/8 of 1% annually) of the average
daily net assets of the Registrant throughout the month.
(A) The management fees paid by the Registrant for the fiscal years
ended March 31, 1995, 1994 and 1993 were $350,354, $370,335 and $395,218,
respectively.
(B) and (C) Not applicable
(b) The Investment Adviser manages the Registrant and administers
its affairs subject to the direction of, and overall control by the Board of
Directors of the Registrant. EVM agrees to furnish the Registrant with
management and investment advisory services and office facilities, equipment
and clerical personnel, and has arranged for certain members of the EVM
organization to serve without salaries as officers or directors of the
Registrant.
(c)(d)(e)(f) and (g) Not applicable
(h) and (i) Investors Bank & Trust Company ("IBT"), 24 Federal
Street, Boston, Massachusetts, (a 77.3% owned subsidiary of EVC) 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
investment company's average daily collected balances for the week. In view of
the ownership of EVC in IBT, the Registrant is treated as a self-custodian
pursuant to Rule 17f-2 under the 1940 Act, and the Registrant's investments
held by IBT as custodian are thus subject to additional examinations by the
Registrant's independent certified public accountants as called for by such
Rule. For the fiscal year ended March 31, 1995, the Fund paid IBT $36,157.
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
Decisions concerning the execution of Fund portfolio security
transactions, including the selection of the market and the broker-dealer firm,
are made by Eaton Vance. Eaton Vance is also responsible for the execution of
transactions for all other accounts managed by it.
Eaton Vance places the portfolio security transactions of the
Registrant and of all other accounts managed by it for execution with many
broker-dealer firms. Eaton Vance uses its best efforts to obtain execution of
portfolio security transactions at prices which are advantageous to the
Registrant and (when a disclosed commission is being charged) at reasonably
competitive commission rates. In seeking such execution, Eaton Vance will use
its best judgment in evaluating the terms of a transaction, and will give
consideration to various relevant factors, including without limitation the
size and type of the transaction, the general execution and operational
capabilities of the broker-dealer, the nature and character of the market for
the security, the confidentiality, speed and certainty of effective execution
required for the transaction, the reputation, reliability, experience and
financial condition of the broker-dealer, the value and quality of services
rendered by the broker-dealer in other transactions, and the reasonableness of
the commission, if any. Transactions on United States stock exchanges and
other agency transactions involve the payment by the Registrant of negotiated
brokerage commissions. Such commissions vary among different broker-dealer
firms, and a particular broker-dealer may charge different commissions
according to such factors as the difficulty and size of the transaction and the
volume of business done with such broker-dealer. Transactions in foreign
securities usually involve the payment of fixed brokerage commissions, which
are generally higher than those in the United States. There is generally no
stated commission in the case of securities traded in the over-the-counter
markets, but the price paid or received by the Registrant usually includes an
undisclosed dealer markup or markdown. In an underwritten offering the price
paid by the Registrant includes a disclosed fixed commission or discount
retained by the underwriter or dealer. Although commissions paid on portfolio
security transactions will, in the judgment of Eaton Vance, be reasonable in
relation to the value of the services provided, commissions exceeding those
which another firm might charge may be paid to broker-dealers who were selected
to execute transactions on behalf of the Registrant and Eaton Vance's other
clients for providing brokerage and research services to Eaton Vance.
As authorized in Section 28(e) of the Securities Exchange Act of
1934, a broker or dealer who executes a portfolio security transaction on
behalf of the Fund may receive a commission which is in excess of the amount of
commission another broker or dealer would have charged for effecting that
transaction if Eaton Vance determines in good faith that such commission was
reasonable in relation to the value of the brokerage and research services
which have been provided. This determination may be made on the basis of
either that particular transaction or on the basis of the overall
responsibilities which Eaton Vance and its affiliates have for accounts over
which they exercise investment discretion. In making any such determination,
Eaton Vance will not attempt to place a specific dollar value on the brokerage
and research services provided or to determine what portion of the commission
should be related to such services. Brokerage and research services may
include advice as to the value of securities, the advisability of investing in,
purchasing, or selling securities, and the availability of securities or
purchasers or sellers of securities; furnishing analyses and reports concerning
issuers, industries, securities, economic factors and trends, portfolio
strategy and the performance of accounts and effecting securities transactions
and performing functions incidental thereto (such as clearance and settlement);
and the "Research Services" referred to in the next paragraph.
It is a common practice in the investment advisory industry for the
advisers of investment companies, institutions and other investors to receive
research, statistical and quotation services, data, information and other
services, products and materials which assist such advisers in the performance
of their investment responsibilities ("Research Services") from broker-dealer
firms which execute portfolio transactions for the clients of such advisers
from third parties with which such broker-dealers have arrangements.
Consistent with this practice, Eaton Vance receives Research Services from many
broker-dealer firms with which Eaton Vance places the Registrant's portfolio
transactions and from third parties with which these broker-dealers have
arrangements. These Research Services include such matters as general economic
and market reviews, industry and company reviews, evaluations of securities and
portfolio strategies and transactions and recommendations as to the purchase
and sale of securities and other portfolio transactions, financial, industry
and trade publications, news and information services, pricing and quotation
equipment and services, and research oriented computer hardware, software, data
bases and services. Any particular Research Service obtained through a broker-
dealer maybe used by Eaton Vance in connection with client accounts other than
those accounts which pay commissions to such broker-dealers. Any such Research
Service may be broadly useful and of value to Eaton Vance in rendering
investment advisory services to all or a significant portion of its clients, or
may be relevant and useful for the management of only one client's account or
of a few clients' accounts, or may be useful for the management of merely a
segment of certain clients' accounts, regardless of whether any such account or
accounts paid commissions to the broker-dealer through which such Research
Service was obtained. The advisory fee paid by the Registrant is not reduced
because Eaton Vance receives such Research Services. Eaton Vance evaluates the
nature and quality of the various Research Services obtained through
broker-dealer firms and attempts to allocate sufficient commissions to such
firms to ensure the continued receipt of Research Services which Eaton Vance
believes are useful or of value to it in rendering investment advisory services
to its clients.
Subject to the requirement that Eaton Vance shall use its best efforts to
seek to execute portfolio security transactions at advantageous prices and at
reasonably competitive commission rates or spreads. Eaton Vance is authorized
to consider as a factor in the selection of any broker-dealer firm with whom
portfolio orders may be placed the fact that such firm has sold or is selling
shares of the Fund or of other investment companies sponsored by Eaton Vance or
BMR. This policy is not inconsistent with a rule of the National Association
of Securities Dealers, Inc., which rule provides that no firm which is a member
of the Association shall favor or disfavor the distribution of shares of any
particular investment company or group of investment companies on the basis of
brokerage commissions received or expected by such firm from any source.
Securities considered as investments for the Registrant may also be
appropriate for other investment accounts managed by Eaton Vance or its
affiliates. Eaton Vance will attempt to allocate equitably portfolio security
transactions among the Registrant and the portfolios of its other investment
accounts whenever decisions are made to purchase or sell securities by the
Registrant and one or more of such other accounts simultaneously. In making
such allocations, the main factors to be considered are the respective
investment objectives of the Registrant and such other accounts, the relative
size of portfolio holdings of the same or comparable securities, the
availability of cash for investment by the Registrant and such accounts, the
size of investment commitments generally held by the Registrant and such
accounts and the opinions of the persons responsible for recommending
investments to the Registrant and such accounts. While this procedure could
have a detrimental effect on the price or amount of the securities available to
the Registrant from time to time, it is the opinion of the Directors that the
benefits available from the Eaton Vance organization outweigh any disadvantage
that may arise from exposure to simultaneous transactions.
During the Registrant's fiscal years ended March 31, 1995, 1994, and
1993, the Registrant paid brokerage commissions of $1,776, $9,629 and $3,587,
respectively, on portfolio security transactions of which approximately $1,776,
$7,001 and $2,987, respectively, was paid in respect of portfolio security
transactions aggregating approximately $1,694,221, $3,511,996 and $1,578,452,
respectively, to firms which provided some research services to Eaton Vance
(although many of such firms may have been selected in any particular
transaction primarily because of their execution capabilities).
Item 18. Capital Stock and Other Securities
(a) The Registrant has one class of securities, i.e., shares of
common stock of the par value of $1.00 each, all of one class and all having
equal voting rights. Shareholder are entitled to dividends when and as
declared by the Board of Directors, and to participate equally in any
liquidation or dissolution of the Registrant. Shares when issued will be fully
paid and nonassessable and fully transferable. Shares have no pre-emptive,
subscription or conversion rights. There are no sinking fund provisions.
The shareholder may redeem his shares by depositing his shares in good
order for transfer with the Transfer Agent with a written request for
redemption. The shareholder will receive the net asset value determined next
after said deposit. Payment must be made within seven days after deposit. If
the determination of the purchase price is postponed beyond the date on which
it wold normally occur by reason of a declaration of the Board of Directors
suspending determination of net asset value, the right of the shareholder to
have his shares purchased by the Registrant shall be similarly suspended, and
the shareholder may withdraw his shares form deposit if he so elects; or, if he
does not so elect, the purchase price shall be the net asset value of the
shares deposited, determined next after termination of such suspension and
payment therefore shall be within seven days thereafter. See Item 19 below.
The rights of the holders of the Common Stock may be modified by a vote of
the holders of not less than a majority of the outstanding voting securities
(as that term is defined in the Investment Company Act of 1940).
(b) Not applicable
Item 19. Purchase, Redemption and Pricing of Securities Being Offered
(a) Subsequent to its initial public offering in 1964, the
Registrant has not offered its shares for sale.
(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 securities for which
market quotations are readily available shall be appraised at their market
value and all other securities and assets shall be appraised at their fair
value, in each case pursuant to methods or procedures authorized or approved by
the Board of Directors or any duly authorized committee thereof. 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) Not applicable
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
March 31, 1995 and intends to meet such requirement for the taxable year ending
March 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
Not applicable, inasmuch as Registrant does not make a continuous
offering of its shares.
<PAGE>
Item 22. Calculation of Performance Data
Not applicable
Item 23. Financial Statements
Registrant incorporates by reference the audited financial information for
the Fund contained in the Fund's shareholder report for the fiscal year ended
March 31, 1995 as previously filed electronically with the Securities and
Exchange Commission on May 31, 1995 (Accession Number 0000950156-95-000402).
<PAGE>
PART C
OTHER INFORMATION
Item 24. Financial Statements and Exhibits
(a) INCLUDED IN ITEM 23 OF THE REGISTRANT'S PART B
INCORPORATED BY REFERENCE TO THE ANNUAL REPORT FOR DEPOSITORS FUND OF
BOSTON, INC., DATED MARCH 31, 1995, FILED ELECTRONICALLY ON MAY 31,
1995 WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO SECTION
30(b)(2) OF THE INVESTMENT COMPANY ACT OF 1940 (Accession No.
0000950156-95-000402) which contains the following:
Portfolio of Investments, March 31, 1995
Statement of Assets and Liabilities, March 31, 1995
Statement of Operations For The Year Ended March 31, 1995
Statement of Changes In Net Assets For Each of The Two Years In
The Year Ended March 31, 1995
Financial Highlights For Each of The Five Years In the Year Ended
March 31, 1995
Notes to Financial Statement
Independent Auditor's Report dated May 5, 1995
(b) Exhibits:
(1)(a) Articles of Organization dated November 24, 1964, filed
herewith.
(b) Articles of Amendment dated June 29, 1983, filed herewith.
(2) By-Laws adopted November 24, 1964, (incorporating all
amendments to date and currently in effect) filed
herewith.
(3) Not Applicable
(4) Not Applicable
(5) Investment Advisory Agreement with Eaton Vance Management
dated November 1, 1990, filed herewith.
(6) Not Applicable
(7) The Securities and Exchange Commission has granted the
Registrant an exemptive order that permits the Registrant
to enter into deferred compensation arrangements with its
independent Directors. See in the Matter of Capital
Exchange Fund, Inc. , Release No. IC-20671 (November 1,
1994).
(8) Custodian Agreement dated December 17, 1990 filed
herewith.
(9) Not Applicable
(10) Not Applicable
(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 351
$1.00 par value as of June 30, 1995
Item 27. Indemnification
Registrant's Articles of Organization contain the following provision with
respect to indemnification of Directors and officers:
"(a) Subject to the exceptions and limitations contained in paragraph (b),
below:
(i) every person who is, or has been, a director or officer of the
Corporation shall be indemnified by the Corporation to the fullest extent
permitted by law against liability and against all expenses reasonable
incurred or paid by him in connection with any claim, action, suit or
proceeding in which he becomes involved as a party or otherwise by virtue
of his being or having been a director or officer and against amounts paid
or incurred by him in the settlement thereof;
(ii) the words 'claim', 'action', 'suit', or 'proceeding' shall apply to
all claims, actions, suits or proceedings (civil, criminal or other,
including appeals), actual or threatened, whether or not based on any act
or omission antedating adoption of this Article XIV; and words 'liability'
and 'expenses' shall include, without limitation, attorneys' fees, costs,
judgments, amounts paid in settlement, fines, penalties and other
liabilities.
(b) No indemnification shall be provided hereunder to a director or officer:
(i) against any liability to the Corporation or its shareholders by
reason of wilful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of his office;
(ii) with respect to any matter as to which he shall have been finally
adjudicated not to have acted in good faith in the reasonable belief that
his action was in the best interests of the Corporation;
(iii) in the event of a settlement unless there has been a determination
that such director or officer did not engage in wilful misfeasance, bad
faith, gross negligence or reckless disregard of the duties involved in
the conduct of his office,
(A) by the court or other body approving the settlement; or
(B) by vote of a majority of the outstanding shares of the
Corporation not including any shares owned by any affiliated person
(as defined in Section 2 (a) (3) of the Investment Company Act of
1940) of the Corporation; or
(C) by vote of two-thirds (2/3) of those members of the Board of
Directors of the Corporation, constituting at least a majority of
such Board, who are not themselves involved in the claim, action,
suit or proceeding; or
(D) by written opinion of independent counsel,
provided, however, that any shareholder may, by appropriate legal
proceedings, challenge any such determination by the Board of Directors,
or by independent counsel.
(c) The rights of indemnification herein provided may be insured against by
policies maintained by the Corporation, shall be severable, shall not affect
any other rights to which any director or officer may now or hereafter be
entitled, shall continue as to a person who has ceased to be such director or
officer and shall inure to the benefit of the heirs, executors and
administrators of such a person. Nothing contained herein shall affect any
rights to indemnification to which corporate personnel other than directors and
officers may be entitled by contract or otherwise under law.
(d) Expenses of preparation and presentation of a defense to any claim,
action, suit or proceeding of the character described in paragraph (a) of this
Article XIV may be advanced by the Corporation prior to final disposition
thereof upon receipt of an undertaking by or on behalf of the recipient,
guaranteed by a surety bond issued by an insurance company qualified to do
business in the Commonwealth of Massachusetts, to repay such amount if it is
ultimately determined that he is not entitled to indemnification under this
Article XIV."
The Massachusetts Business Corporation Laws Section 67 "Indemnification of
officers and directors", of Chapter 156B of the General Laws of Massachusetts)
provides as follows:
"Indemnification of directors and officers, employees and other agents of
a corporation, and persons who serve at its request as directors, officers,
employees or other agents of another organization, or who serve at its request
in any capacity with respect to any employee benefit plan, may be provided by
it to whatever extent shall be specified in or authorized by (i) the articles
of organization or (ii) a by-law adopted by the stockholders or (iii) a vote
adopted by the holders of a majority of the shares of stock entitle to vote on
the election of directors. Except as the articles of organization or by-laws
otherwise require, indemnification of any persons referred to in the preceding
sentence who are not directors of the corporation may be provided by it to the
extent authorized by the directors. Such indemnification may include payment
by the corporation of expenses incurred in defending a civil or criminal action
or proceeding in advance of the final disposition of such action or proceeding,
upon receipt of an undertaking by the person indemnified to repay such payment
if he shall be adjudicated to be not entitled to indemnification under this
section which undertaking may be accepted without reference to the financial
ability of such person to make repayment. Any such indemnification may be
provided although the person to be indemnified is no longer an officer,
director, employee or agent of the corporation or of such other organization no
longer serves with respect to any such employee benefit plan.
No indemnification shall be provided for any person with respect to any
matter as to which he shall have been adjudicated in any proceeding not to have
acted in good faith in the reasonable belief that his action was in the best
interest of the corporation or to the extent that such matter relates to
service with respect to an employee benefit plan, in the best interests of the
participants or beneficiaries of such employee benefit plan.
The absence of any express provision for indemnification shall not limit
any right of indemnification existing independently of this section.
A corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or other agent
of the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or other agent of another organization in which it
owns shares or of which it is a creditor, against any liability incurred by him
in any such capacity or arising out of his status as such whether or not the
corporation would have the power to indemnify him against such liability."
So long as the position of the Division of Investment Management of the
Securities and Exchange Commission with respect to indemnification of officers
and directors as set forth in Release No. IC-11330 dated September 2, 1980
remains in effect, the Registrant undertakes that it will not indemnify any
such officer or director pursuant to clause (B) or (C) of Paragraph (b) (iii)
of Article XIV of the Registrant's Articles of Organization in the absence of
written determination by independent legal counsel that the person being
indemnified was not liable to the Registrant or its shareholders by reason of
disabling conduct, unless in the opinion of its counsel the matter has been
settled by controlling precedent.
Registrant's Directors and officers are insured under a standard mutual
fund errors and omissions insurance policy covering loss incurred by reason of
negligent errors and omissions committed in their capacities as such.
Item 28. Business and Other Connections of Investment Adviser
In addition to Eaton Vance acting as Investment Adviser to the Fund,
Eaton Vance or its affiliates a currently act as investment adviser and/or
provide administrative and management services to investment companies under
other agreements and also provide such services to various individual and
institutional clients, with combined assets under management of approximately
$15 billion. Such investment companies are:
Alabama Tax Free Portfolio
Arizona Limited Maturity Tax Free Portfolio
Arizona Tax Free Portfolio
Arkansas Tax Free Portfolio
California Limited Maturity Tax Free Portfolio
California Tax Free Portfolio
Capital Exchange Fund, Inc.
Cash Management Portfolio
Colorado Tax Free Portfolio
Connecticut Limited Maturity Tax Free Portfolio
Connecticut Tax Free Portfolio
Depositors Fund of Boston, Inc.
Diversification Fund, Inc.
EV Marathon Gold & Natural Resources Fund
Eaton Vance Equity-Income Trust
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 Tax Free Portfolio
Florida Limited Maturity Tax Free Portfolio
Florida Tax Free Portfolio
Georgia Tax Free Portfolio
Government Obligations Portfolio
Greater China Growth Portfolio
Growth Portfolio
Hawaii Tax Free Portfolio
High Income Portfolio
Investors Portfolio
Kansas Tax Free Portfolio
Kentucky Tax Free Portfolio
Louisiana Tax Free Portfolio
Maryland Tax Free Portfolio
Massachusetts Limited Maturity Tax Free Portfolio
Massachusetts Tax Free Portfolio
Michigan Limited Maturity Tax Free Portfolio
Michigan Tax Free Portfolio
Minnesota Tax Free Portfolio
Missouri Tax Free Portfolio
Mississippi Tax Free Portfolio
National Limited Maturity Tax Free Portfolio
National Municipals Portfolio
New Jersey Limited Maturity Tax Free Portfolio
New Jersey Tax Free Portfolio
New York Limited Maturity Tax Free Portfolio
New York Tax Free Portfolio
North Carolina Limited Maturity Tax Free Portfolio
North Carolina Tax Free Portfolio
Ohio Limited Maturity Tax Free Portfolio
Ohio Tax Free Portfolio
Oregon Tax Free Portfolio
Pennsylvania Limited Maturity Tax Free Portfolio
Pennsylvania Tax Free Portfolio
Rhode Island Tax Free Portfolio
Second Fiduciary Exchange Fund, Inc.
Senior Debt Portfolio
South Asia Portfolio
South Carolina Tax Free Portfolio
Special Investment Portfolio
Stock Portfolio
Strategic Income Portfolio
Tennessee Tax Free Portfolio
Texas Tax Free Portfolio
Total Return Portfolio
The Exchange Fund of Boston, Inc.
Vance, Sanders Exchange Fund (A California Limited Partnership)
Virginia Limited Maturity Tax Free Portfolio
Virginia Tax Free Portfolio
West Virginia Tax Free Portfolio
Registrant's principal underwriter, Eaton Vance Distributors, Inc., a
wholly-owned subsidiary of Eaton Vance is the Registrant's principal
underwriter for each of the investment companies named below:
EV Classic Alabama Tax Free Fund
EV Classic Arizona Tax Free Fund
EV Classic Arkansas Tax Free Fund
EV Classic California Limited Maturity Tax Free Fund
EV Classic California Municipals Fund
EV Classic Colorado Tax Free Fund
EV Classic Connecticut Limited Maturity Tax Free Fund
EV Classic Connecticut Tax Free Fund
EV Classic Florida Insured Tax Free Fund
EV Classic Florida Limited Maturity Tax Free Fund
EV Classic Florida Tax Free Fund
EV Classic Georgia Tax Free Fund
EV Classic Government Obligations Fund
EV Classic Greater China Growth Fund
EV Classic Growth Fund
EV Classic Hawaii Tax Free Fund
EV Classic High Income Fund
EV Classic Investors Fund
EV Classic Kansas Tax Free Fund
EV Classic Kentucky Tax Free Fund
EV Classic Louisiana Tax Free Fund
EV Classic Maryland Tax Free Fund
EV Classic Massachusetts Limited Maturity Tax Free Fund
EV Classic Massachusetts Tax Free Fund
EV Classic Michigan Limited Maturity Tax Free Fund
EV Classic Michigan Tax Free Fund
EV Classic Minnesota Tax Free Fund
EV Classic Mississippi Tax Free Fund
EV Classic Missouri Tax Free Fund
EV Classic National Limited Maturity Tax Free Fund
EV Classic National Municipals Fund
EV Classic New Jersey Limited Tax Free Fund
EV Classic New Jersey Tax Free Fund
EV Classic New York Limited Maturity Tax Free Fund
EV Classic New York Tax Free Fund
EV Classic North Carolina Tax Free Fund
EV Classic Ohio Limited Maturity Tax Free Fund
EV Classic Ohio Tax Free Fund
EV Classic Oregon Tax Free Fund
EV Classic Pennsylvania Limited Maturity Tax Free Fund
EV Classic Pennsylvania Tax Free Fund
EV Classic Rhode Island Tax Free Fund
EV Classic Senior Floating-Rate Fund
EV Classic South Carolina Tax Free Fund
EV Classic Special Equities Fund
EV Classic Stock Fund
EV Classic Strategic Income Fund
EV Classic Tennessee Tax Free Fund
EV Classic Texas Tax Free Fund
EV Classic Total Return Trust
EV Classic Virginia Tax Free Fund
EV Classic West Virginia Tax Free Fund
EV Marathon Alabama Tax Free Fund
EV Marathon Arizona Limited Maturity Tax Free Fund
EV Marathon Arizona Tax Free Fund
EV Marathon Arkansas Tax Free Fund
EV Marathon California Limited Maturity Tax Free Fund
EV Marathon California Municipals Fund
EV Marathon Colorado Tax Free Fund
EV Marathon Connecticut Limited Maturity Tax Free Fund
EV Marathon Connecticut Tax Free Fund
EV Marathon Emerging Markets Fund
Eaton Vance Equity-Income Trust
EV Marathon Florida Insured Tax Free Fund
EV Marathon Florida Limited Maturity Tax Free Fund
EV Marathon Florida Tax Free Fund
EV Marathon Georgia Tax Free 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 Tax Free Fund
EV Marathon High Income Fund
EV Marathon Investors Fund
EV Marathon Kansas Tax Free Fund
EV Marathon Kentucky Tax Free Fund
EV Marathon Louisiana Tax Free Fund
EV Marathon Maryland Tax Free Fund
EV Marathon Massachusetts Limited Maturity Tax Free
EV Marathon Massachusetts Tax Free Fund
EV Marathon Michigan Limited Maturity Tax Free Fund
EV Marathon Michigan Tax Free Fund
EV Marathon Minnesota Tax Free Fund
EV Marathon Mississippi Tax Free Fund
EV Marathon Missouri Tax Free Fund
EV Marathon National Limited Maturity Tax Free Fund
EV Marathon National Municipals Fund
EV Marathon New Jersey Limited Maturity Tax Free Fund
EV Marathon New Jersey Tax Free Fund
EV Marathon New York Limited Maturity Tax Free Fund
EV Marathon New York Tax Free Fund
EV Marathon North Carolina Limited Maturity Tax Free Fund
EV Marathon North Carolina Tax Free Fund
EV Marathon Ohio Limited Maturity Tax Free Fund
EV Marathon Ohio Tax Free Fund
EV Marathon Oregon Tax Free Fund
EV Marathon Pennsylvania Limited Maturity Tax Free Fund
EV Marathon Pennsylvania Tax Free Fund
EV Marathon Rhode Island Tax Free Fund
EV Marathon South Carolina Tax Free Fund
EV Marathon Special Equities Fund
EV Marathon Stock Fund
EV Marathon Strategic Income Fund
EV Marathon Tennessee Tax Free Fund
EV Marathon Texas Tax Free Fund
EV Marathon Total Return Fund
EV Marathon Virginia Limited Maturity Tax Free Fund
EV Marathon Virginia Tax Free Fund
EV Marathon West Virginia Tax Free Fund
EV Traditional California Municipals Fund
EV Traditional Connecticut Tax Free Fund
EV Traditional Emerging Markets Fund
EV Traditional Florida Insured Tax Free Fund
EV Traditional Florida Limited Maturity Tax Free Fund
EV Traditional Florida Tax Free Fund
EV Traditional Government Obligations Fund
EV Traditional Greater China Growth Fund
EV Traditional Greater India Fund
EV Traditional Growth Fund
Eaton Vance Income Fund of Boston
EV Traditional Investors Fund
Eaton Vance Municipal Bond Fund L.P.
EV Traditional National Limited Maturity Tax Free Fund
EV Traditional National Municipals Fund
EV Traditional New Jersey Tax Free Fund
EV Traditional New York Limited Maturity Tax Free Fund
EV Traditional New York Tax Free Fund
EV Traditional Pennsylvania Tax Free Fund
EV Traditional Special Equities Fund
EV Traditional Stock Fund
EV Traditional Total Return 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
Eaton Vance owns all of the stock of Energex Corporation, which is
engaged in oil and gas operations. EVC owns 77.3% of the stock of Investors
Bank & Trust Company, ("IBT"), the Registrant's custodian, which also provides
bookkeeping and pricing services to the Registrant. The charges for its
services are offset by the value (determined by an agreed-upon formula) of the
Registrant's cash balances, which are maintained with it as the Registrant's
custodian. The Registrant also pays a fee based on the number and type of
portfolio transactions. IBT also provides custodial, trustee and other
fiduciary services to investors, including individuals, employee benefit plans,
corporations, savings banks, investment companies and other institutions. 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 Marblehead Energy Corp., which is engaged in oil and gas
operations, all of the stock of Fulcrum Management, Inc. and MinVen, Inc. both
of which are engaged in the development of precious metal properties. 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. See Item 21.
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, 24 Federal Street,
Boston, Massachusetts 02110 and 89 South Street, Boston, MA 02ll0, and the
Registrant's transfer agent, The Shareholder Services Group, Inc., 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 Registrant's Investment Adviser Eaton
Vance, 24 Federal Street, Boston, Massachusetts 02110.
Item 31. Management Services
Not Applicable
Item 32. Undertakings
Not Applicable
<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 31st day of July 1995.
DEPOSITORS FUND OF BOSTON, INC.
By /s/Eric G. Woodbury
Eric G. Woodbury, Assistant Clerk
<PAGE>
EXHIBIT INDEX
The following exhibits are filed as part of this Registration Statement.
Exhibit No. Description
1(a) Articles of Incorporation dated November 24, 1964.
1(b) Articles of Amendment dated June 29, 1983.
2 By-Laws adopted November 24, 1964, (incorporating all
amendments to date and currently in effect).
5 Investment Advisory Agreement with Eaton Vance Management
dated November 1, 1990.
8 Custodian Agreement dated December 17, 1990.
<PAGE>
EXHIBIT 99.1(a)
The Commonwealth of Massachusetts
KEVIN H. WHITE
Secretary of the Commonwealth
STATE HOUSE
BOSTON, MASS.
ARTICLES OF ORGANIZATION
We, Robert S. Swain, Arthur H. Haussermann and Charles
Jackson, Jr.
being a majority of the directors of DEPOSITORS FUND OF BOSTON,
INC.
elected at its first meeting, in compliance with the requirements
of General Laws, Chapter 156, Section 10, hereby certify that the
following is a true copy of the agreement of association to form
said corporation, with the names of the subscribers thereto:
We, whose names are hereto subscribed, do, by this
agreement, associate ourselves with the intention of forming a
corporation under the provisions of General Laws, Chapter 156.
The name by which the corporation shall be known is
DEPOSITORS FUND OF BOSTON, INC.
The location of the principal office of the corporation in
Massachusetts is to be in the city of Boston
{The business address of the corporation is to be
Second Floor, 111 Devonshire Street, Boston, Massachusetts 02109
If such business address is not yet determined, give the
name and business address of the treasurer or other officer
to receive mail.
}
The purposes for which the corporation is formed and the
nature of the business to be transacted by it are as follows:
To engage in the business of an incorporated investment
company of the management type, investing and reinvesting, in
accordance with the provisions of Article I of this Agreement of
Association and Articles of Organization (hereinafter sometimes
called "these Articles") the proceeds of the sale of the shares
of its capital stock; and to do any and all acts and things,
necessary or incidental thereto, to the extent permitted to
business corporations under the provisions of Chapter 156 of the
General Laws of Massachusetts as heretofore and from time to time
amended. The Corporation may sell its shares only in accordance
with the provisions of Article VI of these Articles and may buy
its own shares only in accordance with the provisions of Article
VII of these Articles. The Corporation may borrow money and
pledge securities as collateral security for such borrowings only
to such extent and subject to such restrictions and limitations
as may be provided in the By-Laws.
The total capital stock to be authorized is as follows:
WITH PAR VALUE
CLASS OF STOCK NUMBER OF SHARES PAR VALUE
AMOUNT
Common 2,000,000 $1 2,000,000
The corporation may issue and sell fractions of shares
having pro rata all the rights of full shares, including, without
limitation, the right to vote and to receive dividends, and
wherever the words "share" or "shares" are used in these Articles
they shall be deemed to include fractions of shares, where the
context does not clearly indicate that only full shares are
intended.
The following lawful provisions are inserted in the Articles
of Organization for the conduct and regulation of the business of
the corporation, for its voluntary dissolution, for limiting,
defining or regulating the powers of the corporation, its
directors and shareholders.
<PAGE>
[If notice is waived, fill in the following paragraph]
We hereby waive all requirements of the General Laws of
Massachusetts for notice of the first meeting of the
incorporators for the purpose of organization, and appoint the
24th day of
November ,1964, at 1:30 o 'clock P.M., at Second
Floor, 111 Devonshire St., Boston Mass. as the time and place
for holding such first meeting.
The names and residences of the incorporators and the amount
of stock subscribed for by each are as follows:
AMOUNT OF STOCK
NAME DOMICIL SUBSCRIBED FOR
PREFERRED
COMMON
Robert S. Swain 172 Beacon Street
none
Arthur H. Haussermann 22 Allen Road
none
Wellesley, Massachusetts
Charles Jackson, Jr. Farm Street
none
Dover, Massachusetts
IN WITNESS WHEREOF we hereto sign our names, this 24th day of
November ,1964.
/s/ Robert s. Swain
Robert S. Swain
/s/ Arthur H. Haussermann
Arthur H. Haussermann
/s/ Charles Jackson Jr.
Charles Jackson, Jr.
The Commonwealth of Massachusetts
KEVIN H. WHITE
SECRETARY OF THE COMMONWEALTH
No. 1205
Boston, NOV 25 1964
Received of /s/ Depositors Fund of Boston, Inc.
/s/ One Thousand-------------------------------------------------
- -----------------------------Dollars
in payment of statutory fee for filing Articles of Organizations
and issuing certificate of Incorporation.
/s/ Kevin H. White Secretary
And we further certify that:
The first meeting of the subscribers to said agreement was held
on the 24th day
of November 1964
The amount of capital stock now to be issued is as follows:
NUMBER OF SHARES
CLASS OF STOCK WITHOUT PAR VALUE WITH PAR
VALUE
Preferred
Common 1
Preferred Common
TO BE PAID FOR:
IN CASH:
In Full 1
In installments
Amount of instalment to be paid before commencing
business
IN PROPERTY
REAL ESTATE
Location
Area
PERSONAL PROPERTY:
Accounts receivable
Notes receivable
Merchandise
Supplies
Securities
Machinery
Motor vehicles and trailers
Equipment and tools
Furniture and fixtures
Patent rights
Trade-marks
Copyrights
Goodwill
IN SERVICES
IN EXPENSES
<PAGE>
The name, residence, and post office address of each of the
officers of the corporation is as follows:
NAME DOMICIL POST OFFICE ADDRESS
President Robert S. Swain, 172 Beacon Street
Boston, Massachusetts
Treasurer Arthur H. Haussermann,22 Allen Road
Wellesley, Massachusetts
Clerk Arthur H. Haussermann,
Directors Charles Jackson, Jr., Farm Street,
Dover, Mass.
Robert S. Swain, 172 Beacon Street
Boston, Massachusetts
Arthur H. Haussermann,22 Allen Road
Wellesley, Massachusetts
We, being a majority of the directors of Depositors Fund
of Boston, Inc.
do hereby certify that the provisions of sections eight and nine
of Chapter 156 relative to the calling and holding of the first
meeting of the corporation, and the election of a temporary
clerk, the adoption of by-laws and the election of officers have
been complied with.
The final day of the corporation's fiscal year is
March
31st and the
date provided in the by-laws for the annual
meeting is 4th Tuesday June
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we
hereto sign our names, this 24th day of
November ,1964
/s/ Robert S. Swain
President and Director
/s/ Arthur H. Haussermann
Treasurer, Clerk and Director
/s/ Charles Jackson Jr.
Director
<PAGE>
ARTICLE I
Investments
The Corporation shall have authority from time to time,
subject to any restrictions and limitations which may be
contained in these Articles or the By-Laws with respect to the
character of investments and the diversification thereof, to
invest in, own, hold for investment or otherwise, and to sell or
otherwise dispose of (1) any shares of stock or voting trust
certificates issued or created in respect of shares issued by any
corporation, either public, quasi-public or private, association,
trust or other organization, domestic or foreign, (2) any bonds,
notes, certificates of indebtedness, or other negotiable
securities, however named or described, issued by such
organizations, (3) any bonds, notes, certificates of indebtedness
or other negotiable securities, however named or described,
issued by governments, states, counties, cities, towns or
districts, or other governmental agencies, domestic or foreign,
and (4) deposits in any bank or trust company in good standing
organized under the laws of the United States of America or under
the laws of any State thereof.
ARTICLE II
Management of Securities Owned
The Board of Directors on behalf of the Corporation shall
have the authority to exercise all of the rights of the
Corporation as owner of any securities which might be exercised
by any individual owning such securities in his own right,
including without limitation the right to vote by proxy for any
and all purposes (including the right to authorize any officer to
execute proxies), to consent to the reorganization, merger or
consolidation of any company, or to consent to the sale or lease
of all or substantially all of the property and assets of any
company to any other company; to exchange any of the securities
of any company for the securities, including shares of stock,
issued therefor upon any such reorganization, merger,
consolidation, sale or lease; to exercise any conversion
privileges, rights, options, and warrants incident to the
ownership of any security owned by it or acquired therewith; and
to hold any securities acquired in the name of the Custodian, or
in the name of its nominee or a nominee of the Corporation, or in
any manner permitted herein or in the By-Laws.
ARTICLE III
Maintenance of Assets
The Corporation shall maintain custodial and depository
arrangements for its assets in the manner referred to in the By-
laws. As used in these Articles, the term "Custodian" shall mean
the principal custodian of the Corporation appointed by the Board
of Directors.
ARTICLE IV
Contracts
(a) The Board of Directors may in their discretion from
time to time enter into an exclusive or non-exclusive
underwriting contract or contracts providing for the sale of the
shares of this Corporation to net the Corporation not less than
the amount provided for in Article VI hereof, whereby the
Corporation may either agree to sell the shares to the other
party to the contract or appoint such other party its sales agent
for such shares (such other party being herein sometimes called
the "underwriter"), and in either case on such terms and
conditions as may be prescribed in the By-Laws, if any, and such
further terms and conditions as the Board of Directors may in
their discretion determine not inconsistent with the provisions
of this Article IV, of Article VI hereof or of the By-Laws; and
such contract may also provide for the repurchase of shares of
this Corporation by such other party as agent of the Corporation.
(b) The Board of Directors may in its discretion from time
to time inter into an investment advisory or management contract
whereby the other party to such contract shall undertake to
furnish to the Board of Directors such management, investment
advisory, statistical and research facilities and services and
such other facilities and services, if any, and all upon such
terms and conditions, as the Board of Directors may in its
discretion determine.
(c) Any contract of the character described in paragraphs
(a) or (b) or any contract with a custodian or subcustodian may
be entered into with any corporation, firm, trust or association,
although one or more of the Board of Directors or officers of
this Corporation may be an officer, director, trustee,
shareholder, or member of such other party to the contract, and
no such contract shall be invalidated or rendered voidable by
reason of the existence of any such relationship, nor shall any
person holding such relationship be liable merely by reason of
such relationship for any loss or expense to the Corporation
under or by reason of said contract or accountable for any profit
realized directly or indirectly therefrom, provided that the
contract when entered into was reasonable and fair and not
inconsistent with the provisions of this Article IV. The same
person (including a firm, corporation, trust or association) may
be the other party to contracts entered into pursuant to
paragraphs (a) and (b) above, and any individual may be
financially interested or otherwise affiliated with persons who
are parties to any or all of the contracts mentioned in this
paragraph (c).
(d) Any contract entered into pursuant to paragraph (a) or
(b) above shall be consistent with and subject to the
requirements of Section 15 of the Investment Company Act of 1940
(including any amendment thereof or other applicable Act of
Congress hereafter enacted) with respect to its continuance in
effect, its termination and the method of authorization and
approval of such contract or renewal thereof, and no amendment to
any contract entered into pursuant to paragraph (b) shall be
effective unless assented to by affirmative vote of a majority of
the outstanding shares of the Corporation.
(ARTICLE V deleted)
ARTICLE VI
Sale of Shares of the Corporation
The Board of Directors may offer for sale, issue and sell or
cause to be offered, issued and sold, an initial issue of shares
consisting of such number of shares at prices to net the
Corporation, before paying any taxes in connection with the issue
and sale, such amount per share as may be specified, from time to
time, by the Board of Directors or its delegate, provided that no
change in said amount shall be made after the registration
statement under the Federal Securities Act of 1933 relating to
such shares shall have become effective. In connection with such
initial issue and sale, the Board of Directors may accept
securities of other issuers at market value in lieu of cash,
notwithstanding that the Federal income tax basis to the
Corporation of any securities so acquired may be less than the
market value, provided that the securities so acquired are of the
character in which the Board of Directors are permitted to invest
the funds of the Corporation, and provided that the consideration
for the shares to be issued shall in every case be paid or
delivered to the Custodian, as agent of the Corporation, before
the delivery of any certificate for such shares.
The Board of Directors may from time to time issue and sell
or cause to be issued and sold shares of the Corporation for
cash, which shall in every case be paid to the Custodian as agent
of the Corporation before the delivery of any certificate for
such shares. The authorized shares, including additional shares
which may hereafter be authorized by vote of the shareholders, as
well as any shares which may have been repurchased by the
Corporation (herein sometimes referred to as "treasury shares")
may be sold at a price which will net the Corporation, before
paying any taxes in connection with such issue or sale, not less
than the par value thereof and not less than the net asset value
thereof (as defined in Article VIII hereof) in effect when the
sale is made.
When an underwriting contract is in effect pursuant to
Article IV (a) the time of sale shall be the time when an
unconditional order is placed with the underwriter, unless the
order is an unconditional order to be executed at the public
offering price to be established by a calculation of net asset
value later to become effective, in which event the time of sale
shall be the time when such net asset value becomes effective.
Such contract may provide for the sale of shares either at a
price based on the net asset value in effect when the order is
placed with the underwriter or at a price based on such later
ineffective net asset value. No shares need be offered to
existing shareholders before being offered to others. No shares
shall be sold by the corporation (although shares previously
contracted to be sold may be issued upon payment therefor) during
any period when the determination of net asset value is suspended
by declaration of the Board of Directors pursuant to the
provisions of Article VIII hereof. In connection with the
acquisition by merger or otherwise of all or substantially all
the assets of another investment company or trust the Board of
Directors may issue or cause to be issued shares of the
Corporation and accept in payment therefor such assets at market
value in lieu of cash, notwithstanding that the Federal income
tax basis to the Corporation of any assets so acquired may be
less than the market value, provided that such assets are of the
character in which the Board of Directors are permitted to invest
the funds of the Corporation.
ARTICLE VII
Redemption and Repurchase of Shares
of the Corporation
(a) In case any shareholder in the Corporation at any time
desires to dispose of shares recorded in his name, he may deposit
his certificate or certificates therefor duly endorsed or
accompanied by a proper instrument of transfer at the office of
the Custodian together with a request that the Corporation
purchase the shares represented thereby in accordance with this
Article VII(a). The shareholder so depositing his certificate or
certificates shall be entitled to require the Corporation to
purchase, and the Corporation shall purchase, his said shares,
but only at the net asset value of such shares (as defined in
Article VIII hereof) determined by or on behalf of the Board of
Directors next after said deposit.
Payment for such shares shall be made by the Corporation to
the shareholder of record within seven (7) days after the date
upon which the shares are deposited. If the determination of the
purchase price is postponed beyond the date on which it would
normally occur by reason of a declaration by the Board of
Directors suspending determination of net asset value pursuant to
said Article VIII, the right of the shareholder to have his
shares purchased by the Corporation shall be similarly suspended,
and he may withdraw his certificate or certificates from deposit
if he so elects; or, if he does not so elect, the purchase price
shall be the net asset value of the shares deposited, determined
next after termination of such suspension and payment therefor
shall be made within seven (7) days thereafter.
Payment for such shares may at the option of the Board of
Directors, or such officer or officers as they may duly authorize
for the purpose, in their complete discretion be made in cash, or
in kind, or partially in cash and partially in kind. In case of
payment in kind the Board of Directors, or their delegate, shall
have absolute discretion as to what security or securities shall
be distributed in kind and the amount of the same, and the
securities shall be valued for purposes of distribution at the
figure at which they were appraised in computing the asset value
of the Corporation's shares, provided that any shareholder who
cannot legally acquire securities so distributed in kind by
reason of the prohibitions of the Investment Company Act of 1940
shall receive cash.
(b) The Corporation may purchase shares of the Corporation
by agreement with the owner thereof (1) at a price not exceeding
the net asset value per share determined next after the purchase
or contract of purchase is made or (2) at a price not exceeding
the net asset value per share determined at some later time, and
may make payment in whole or in part in kind, as provided in
paragraph (a).
(c) Shares purchased by the Corporation either pursuant to
paragraph (a) or paragraph (b) of this Article VII shall be
deemed treasury shares and may be resold by the Corporation.
ARTICLE VIII
NET ASSET VALUE OF SHARES
The net asset value of each share of the Corporation
outstanding shall be determined by the Board of Directors or its
delegate not less frequently than once on each business day
(which term shall, wherever it appears in this instrument, be
deemed to mean each day on which the net asset value of the
shares of the Corporation is required to be computed by the
provisions of the Investment Company Act of 1940, including any
amendment thereof or other applicable Act of Congress hereafter
enacted [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 under this Article VIII with respect to the
determination of net asset value and appraisal of assets and
liabilities. 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. For the purposes of Articles VII and
VIII any reference to the time at which a determination of net
asset value is made shall mean the time as of which the
determination is made.
The 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 Corporation 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 Corporation (i.e., the value of the assets of the
Corporation less its actual and accrued liabilities 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
securities for which market quotations are readily available
shall be appraised at their market value and all other securities
and assets shall be appraised at their fair value, in each case
pursuant to methods or procedures authorized or approved by the
Board of Directors or any duly authorized committee thereof. 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.
For the purposes of this Article VIII:
(i) Shares of the Corporation sold shall be
deemed to become outstanding immediately after the
close of business on the day on which the contract of
sale is made, and the sale price thereof (less
commission, if any, and less any stamp or other tax
payable by the Corporation in connection with the
issuance thereof) shall thereupon be deemed an asset of
the Corporation.
(ii) Shares of the Corporation tendered for
purchase by the Corporation under Article VII(a) shall
be deemed to be outstanding at the close of business on
the day as of which the purchase price is determined,
and thereafter they shall be deemed treasury stock and,
until paid, the price thereof shall deemed to be a
liability of the Corporation.
(iii) Shares of the Corporation purchased by the
Corporation under Article VII(b) shall be deemed to be
outstanding at the close of business on the day as of
which the purchase price is determined, and thereafter
the shall be deemed treasury stock and, until paid, the
price thereof shall be deemed to be a liability of the
Corporation.
(iv) Portfolio securities owned by the
Corporation which the Board of Directors or its
delegate shall, pursuant to Article VII(a) have
selected for distribution in redemption or repurchase
of shares of the Corporation tendered to it pursuant to
Article VII(a) or repurchased pursuant to Article
VII(b) at any time shall be included in determining the
price of such shares of the Corporation, and thereafter
neither such securities nor such shares of the
Corporation shall be included in determinations of net
asset value pursuant to this Article VIII.
ARTICLE IX
Dividends
(a) The total of distributions to shareholders paid in
respect of any one fiscal year, subject to the exceptions noted
below, shall be approximately equal to (A) the net income,
exclusive of profits or losses realized upon the sale of
securities or other property, for such fiscal year, determined in
accordance with good accounting practice (which, if the Board of
Directors so determine, maybe adjusted for net amounts included
as such accrued net income in the price of shares of capital
stock of the Corporation issued or repurchased), but if the net
income exceeds the amount distributed by less than one cent per
share outstanding at the record date for the final dividend, the
excess shall be treated as distributable income of the following
year. Such total of distributions may also include in the
discretion of the Board of Directors an additional amount (B)
which shall not substantially exceed the excess or profits over
losses on sales of securities or other property for such fiscal
year. The decision of the Board of Directors as to what, in
accordance with good accounting practice, is income and what is
principal shall be final, and except as specifically provided
herein the decision of the Board of Directors as to what expenses
and charges of the Corporation shall be charged against principal
and what against income shall be final, all subject to any
applicable provisions of the Investment Company Act of 1940 and
rules and regulations of the Securities and Exchange Commission
promulgated thereunder. For the purposes of the limitation
imposed by this paragraph (a), shares issued pursuant to
paragraph (b) of this Article IX shall be valued at the amount of
cash which the shareholders would have received if they had
elected to receive cash in lieu of such shares.
Inasmuch as the computation of net income and gains for
Federal income tax purposes may vary from the computation thereof
on the books, the above provisions shall be interpreted to give
to the Board of Directors the power in its discretion to
distribute for any fiscal year as ordinary dividends and as
capital gains distributions, respectively, additional amounts
sufficient to enable the Corporation to avoid or reduce liability
for taxes. Any payment made to shareholders pursuant to clause
(B) shall be accompanied by a written statement showing the
source or sources of such payment, and the basis of computation
thereof.
(b) The Board of Directors shall have power, to the fullest
extent permitted by the laws of Massachusetts, but subject to the
limitation as to cash distributions imposed by paragraph (a) of
this Article IX, at any time or from time to time to declare and
cause to be paid distributions payable at the election of any of
the shareholders (whether exercised before or after the
declaration of the distributions) either in cash or in shares of
capital stock, provided that the sum of (i) the cash distribution
actually paid to any shareholder and (ii) the net asset value of
the shares which that shareholder elects to receive, in effect at
such time at or after the election as the Board of Directors may
specify, shall not exceed the full amount of cash to which that
shareholder would be entitled if he elected to receive only cash.
In the case of a distribution payable in cash or shares of
capital stock at the election of a shareholder, the Board of
Directors may prescribe whether a shareholder failing to express
his election before a given time shall be deemed to have elected
to take shares rather than cash, or to take cash rather than
shares, or to take shares with cash adjustment of fractions.
(c) Anything in this instrument to the contrary
notwithstanding, the Board of Directors may at any time declare
and distribute pro rata among the shareholders a "stock dividend"
out of either authorized but unissued or treasury shares of the
Corporation, or both.
ARTICLE X
Dealings with Directors and Officers
The Board of Directors shall not on behalf of the
Corporation buy any securities (other than shares issued by the
Corporation) from or sell any securities (other than shares
issued by the Corporation) to or lend any assets of the
Corporation to any director or officer of the Corporation or any
firm of which any such director or officer is a member acting as
principal; or have any such dealings with the other party to any
contract entered into pursuant to paragraph (a) or (b) or Article
IV hereof or with any person interested in such other party as
director, partner, trustee or officer; but the Corporation may
employ any such other party or any such person or any firm or
company in which any such person is so interested as broker upon
customary terms.
Any director, officer or other agent of the Corporation may
acquire, own and dispose of shares of the Corporation to the same
extent as if he were not a director, officer or agent; and the
Board of Directors may issue and sell, or cause to be issued and
sold for cash, shares in the Corporation to, and buy such shares
for cash from, any such person or any firm or company in which he
is interested, subject only to the general limitations herein
contained as to the sale and purchase of such shares; and all
subject to any restrictions which may be contained in the By-
Laws.
ARTICLE XI
Winding Up and Dissolution
In the event that the holders of a majority of the shares of
the Corporation vote to wind up and liquidate the Corporation, no
further shares of the Corporations shall be sold or redeemed or
repurchased by the Corporation, and the then Directors shall
proceed to wind up its affairs, liquidate its assets, pay its
liabilities and expenses, distribute assets or the proceeds
thereof among the holders of the shares in proportion to their
holdings of shares, and do all acts necessary to secure the
dissolution of the Corporation.
For the purpose of such winding up, liquidation,
distribution and dissolution, the then Directors shall continue
in office until such duties have been duly performed. During the
period of liquidation and until all distribution to the
shareholders has been completed the Directors shall cause the
asset value of the shares to be determined as hereinbefore
provided, and their compensation shall be subject to the
limitation contained in Article V hereof.
Article XII
By-Laws
The By-Laws of the Corporation may provide for their
amendment, alteration, enlargement or repeal in whole or in part
by the Board of Directors without the assent or vote of the
Shareholders. The By-Laws may also provide for the conduct of
meetings of the Board of Directors or Committees thereof by means
of a telephone conference circuit.
ARTICLE XIII
Liability of Directors
The Directors of the Corporation shall not be liable to the
Corporation or to any shareholder or creditor thereof because of
any action taken by them in good faith, and in taking any such
action the Directors shall be full protect in relying in good
faith upon the books of account of the Corporation or statements
or reports prepared by any of its officials or employees or by
others who they believe in good faith are qualified to make such
statements or reports.
Nothing contained in the preceding sentence or elsewhere in
this Agreement of Association shall protect any director or
officer of this Corporation against any liability to the
Corporation or to its shareholders to which he would otherwise be
subject by reason of willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the
conduct of his office.
ARTICLE XIV
(a) Subject to the exceptions and limitations contained in
paragraph (b), below:
(i) every person who is, or has been, a director or officer
of the Corporation shall be indemnified by the Corporation
to the fullest extent permitted by law against liability and
against all expenses reasonable incurred or paid by him in
connection with any claim, action, suit or proceeding in
which he becomes involved as a party or otherwise by virtue
of his being or having been a director or officer and
against amounts paid or incurred by him in the settlement
thereof;
(ii) the words 'claim', 'action', 'suit', or 'proceeding'
shall apply to all claims, actions, suits or proceedings
(civil, criminal or other, including appeals), actual or
threatened, whether or not based on any act or omission
antedating adoption of this Article XIV; and words
'liability' and 'expenses' shall include, without
limitation, attorneys' fees, costs, judgments, amounts paid
in settlement, fines, penalties and other liabilities.
(b) No indemnification shall be provided hereunder to a director
or officer:
(i) against any liability to the Corporation or its
shareholders by reason of wilful misfeasance, bad
faith, gross negligence or reckless disregard of the duties
involved in the conduct of his office;
(ii) with respect to any matter as to which he shall have
been finally adjudicated not to have acted in good
faith in the reasonable belief that his action was in the
best interests of the Corporation;
(iii) in the event of a settlement unless there has been a
determination that such director or officer did not
engage in wilful misfeasance, bad faith , gross negligence
or reckless disregard of the duties involved in the
conduct of his office,
(A) by the court or other body approving the
settlement; or
(B) by vote of a majority of the outstanding shares of
the Corporation not including any shares owned by
any affiliated person (as defined in Section 2 (a) (3)
of the Investment Company Act of 1940) of
the Corporation; or
(C) by vote of two-thirds (2/3) of those members of the
Board of Directors of the Corporation, constituting
at least a majority of such Board, who are not
themselves involved in the claim, action, suit or
proceeding; or
(D) by written opinion of independent counsel,
provided, however, that any shareholder may, by
appropriate legal proceedings, challenge any such
determination by the Board of Directors, or by
independent counsel.
(c) The rights of indemnification herein provided may be insured
against by policies maintained by the Corporation, shall be
severable, shall not affect any other rights to which any
director or officer may now or hereafter be entitled, shall
continue as to a person who has ceased to be such director or
officer and shall inure to the benefit of the heirs, executors
and administrators of such a person. Nothing contained herein
shall affect any rights to indemnification to which corporate
personnel other than directors and officers may be entitled by
contract or otherwise under law.
(d) Expenses of preparation and presentation of a defense to any
claim, action, suit or proceeding of the character described in
paragraph (a) of this Article XIV may be advanced by the
Corporation prior to final disposition thereof upon receipt of an
undertaking by or on behalf of the recipient, guaranteed by a
surety bond issued by an insurance company qualified to do
business in the Commonwealth of Massachusetts, to repay such
amount if it is ultimately determined that he is not entitled to
indemnification under this Article XIV.
<PAGE>
EXHIBIT 99.1(b)
The Commonwealth of Massachusetts
FEDERAL
IDENTIFICATION
NO. 04-2374753
MICHAEL JOSEPH CONNOLLY
Secretary of State
ONE ASHBURTON PLACE, BOSTON, MASS. 02108
ARTICLES OF AMENDMENT
General Laws, Chapter 156B, Section 72
This certificate must be submitted to the Secretary of the
Commonwealth within sixty days after the date of the vote of
stockholders adopting the amendment. The fee for filing this
certificate is prescribed by General Laws, Chapter 156B, Section
114. Make check payable to the Commonwealth of Massachusetts.
We, Landon T. Clay , President/ and
Thomas Otis , Clerk/ of
Depositors Fund of Boston, Inc.
located at 24 Federal Street, Boston, Massachusetts 02110
do hereby certify that the following amendment to the articles of
organization was duly adopted at a meeting held on June
28 , 1983 , by vote of
981,824.793 shares of Common Stock out of 1,433,418.000
shares outstanding,
shares or out of
shares outstanding, and
shares of out of
shares outstanding,
being at least two thirds of each class outstanding and entitled
to vote thereon,
<PAGE>
The following other lawful provisions for the conduct and
regulation of the business of the Corporation, for its voluntary
dissolution, for limiting, defining or regulating the powers of
the Corporation, its directors or shareholders are amended as
indicated below:
VOTED: That Article III of the Articles of Organization of the
corporation be and it hereby is amended to read as
follows:
ARTICLE III
Maintenance of Assets
The Corporation shall maintain custodial and depository
arrangements for its assets in the manner referred to in the By-
Laws. As used in these Articles, the term "Custodian" shall mean
the principal custodian of the Corporation appointed by the Board
of Directors.
FURTHER
VOTED: That the first sentence of paragraph (c) of Article IV
of the Articles of Organization of the corporation be
and it hereby is amended to read as follows:
Any contract of the character described in paragraphs
(a) or (b) or any contract with a custodian or
subcustodian may be entered into with any corporation,
firm, trust or association, although one or more of the
Board of Directors or officers of this Corporation may
be an officer, director, trustee, shareholder, or
member of such other party to the contract, and no such
contract shall be invalidated or rendered voidable by
reason of the existence of any such relationship, nor
shall any person holding such relationship be liable
merely by reason of such relationship for any loss or
expense to the Corporation under or by reason of said
contract or accountable for any profit realized
directly or indirectly therefrom, provided that the
contract when entered into was reasonable and fair and
not inconsistent with the provisions of this Article
IV.
The foregoing amendment will become effective when these
articles of amendment are filed in accordance with Chapter 156B,
Section 6 of The General Laws unless these articles specify, in
accordance with the vote adopting the amendment, a later
effective date not more than thirty days after such filing, in
which event the amendment will become effective on such later
date.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have
hereto signed our names this
29th day of June ,in the
year 1983.
/s/ Landon T. Clay
President
/s/ Thomas Otis
Clerk
<PAGE>
RECEIVED
Aug. 8, 1983
Corporation Division
SECRETARY'S OFFICE
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF AMENDMENT
(General Laws, Chapter 156B, Section 72)
I hereby approve the within
articles of amendment and, the
filing fee in the amount of $75.00
having been paid, said articles are
deemed to have been filed with me
this 8th
day of August
, 1983
/s/ Michael Joseph
Connolly
MICHAEL JOSEPH
CONNOLLY
Secretary of
State
TO BE FILLED IN BY CORPORATION
PHOTO COPY OF AMENDMENT TO BE SENT
TO:
Thomas Otis, Esq.
Depositors Fund of Boston, Inc.
24 Federal Street, Boston, Mass. 02110
Telephone 482-8260
<PAGE>
EXHIBIT 99.2
BY-LAWS
OF
DEPOSITORS FUND OF BOSTON, INC.
ARTICLE I.
Offices.
Section 1. Principal Office. 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, 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 fourth Tuesday of September at 11 A.M., Boston
Time, beginning in 1965, 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.
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 or at such other place within the
Commonwealth of Massachusetts as may be specified or fixed 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 Agreement of Association and
Articles of Organization (hereinafter called "the Articles") or
under the By-Laws is entitled to such notice, by mailing the
same, postage prepaid, 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. Whenever all
shareholders entitled to notice shall meet in person or by proxy
filed with the clerk of the meeting or all such shareholders
shall have waived notice thereof, any annual or special meeting
shall be valid for all purposes without call or notice, and at
such meeting any corporate action may be taken.
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, Treasurer and Clerk shall be
conducted in any manner approved at the meeting of the
shareholders at which said election is held, but shall be by
ballot. 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 meting. 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.
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 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. If all of the
members of the Board of Directors shall be present at any
meeting, such meeting shall be a legal meeting and any business
may be transacted thereat, even though no notice thereof shall
have been given. If it is impracticable 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.
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 and he 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, who shall be elected by the Board of Directors as soon
as may be after the election of the Directors in each year, and a
Treasurer and a Clerk who shall be elected at the annual meeting
of the shareholder. 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. Each officer
elected by the Board of Directors, unless removed in the manner
hereinafter provided, shall hold his office until his successor
shall have been duly elected and qualified. 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
officer with cause, or any officer except the Treasurer and the
Clerk without cause. The shareholders at a meeting duly called
for the purpose may remove the Treasurer or the Clerk 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.
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 respect 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 a 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 al 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 XIV 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 and shall be
sworn. 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 be sworn and 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
for 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 (stock
certificates) shall be numbered in the order of their issue and
shall be signed by the President or any of the Vice Presidents
and by the Treasurer or an Assistant Treasurer and shall be
sealed by the corporate seal; provided, however, that where such
certificate is signed by a transfer agent or 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 of 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 n 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 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 on the first
day of April in each year and shall end on the thirty-first day
of March in each 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 wold
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
Underwriting Arrangements.
Any contract for the sale of the shares of the Corporation
entered into pursuant to paragraph (a) of Article IV of the
Articles shall require the other party thereto (hereinafter
called the "underwriter"), whether acting as principal or as
agent, to use all reasonable efforts, consistent with the other
business of the underwriter, to secure purchasers for the shares
of the Corporation. Such contract shall require the underwriter
to bear all expenses (i) of printing and distributing any
prospectus other than (a) the expense of preparing and setting up
in type any prospectus required under Federal law to be filed
with the Securities and Exchange Commission or (b) the expense of
preparing and setting up in type and distributing to shareholders
of the Corporation any report or other communication in their
capacity as such, (ii) of preparing, printing and distributing
any other literature used by the underwriter or dealers in
connection with the offering of the shares for sale to the
public, (iii) any expense of advertising in connection with such
offering, and (iv) the expenses (other than auditing expense) of
qualification of the shares for sale and, if necessary or
advisable in connection therewith, of qualifying the Corporation
as a dealer or broker, in such states as shall be selected by the
underwriter and the fees payable to each such state for
continuing the qualification therein until the underwriter
notifies the Corporation that it does not wish such qualification
continued.
ARTICLE XII.
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 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 XIII.
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 a member of
the Advisory Board of the Corporation.
ARTICLE XIV.
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 XV.
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. 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 99.5
DEPOSITORS FUND OF BOSTON, INC
INVESTMENT ADVISORY AGREEMENT
AGREEMENT originally made on the 23rd day of July, 1982, by
and between Depositors Fund of Boston, Inc., a Massachusetts
corporation (hereinafter sometimes called the "Fund"), and Eaton
& Howard, Vance Sanders Inc., a Maryland corporation which on
June 29, 1984 merged with and into Eaton Vance Management, Inc.,
a Massachusetts corporation, and re-executed this 1st day of
November, 1990, by and between the Fund and Eaton Vance
Management, a Massachusetts business trust (hereinafter sometimes
called the "Adviser") which is the successor to Eaton Vance
Management, Inc. in a transaction qualifying under Rule 2a-6
under the Investment Company Act of 1940.
1. Pursuant to the Articles of Organization of the Fund,
the Fund hereby employs the Adviser to act as investment adviser
for and to manage the investment and reinvestment of the assets
of the Fund and to administer its affairs, subject to the
supervision of the Board of Directors of the Fund, for the period
and on the terms set forth in this Agreement
2. The Adviser hereby accepts such employment, and
undertakes to afford to the Fund the advice and assistance of the
Adviser's organization in the choice of investments and in the
purchase and sale of portfolio securities and to furnish for the
use of the Fund office space and all necessary office facilities,
equipment and personnel for servicing the investments of the Fund
and for administering its affairs and to pay the salaries and
fees of all officers and Directors of the Fund who are members of
the Adviser's organization and all personnel of the Adviser
performing services relating to research and investment
activities. The Adviser shall for all purposes herein be deemed
to be an independent contractor and shall, except as otherwise
expressly provided or authorized, have no authority to act for or
represent the Fund in any way or otherwise be deemed an agent of
the Fund.
3. The Adviser shall provide the Fund with such investment
management and supervision as the Fund may from time to time
consider necessary for the proper supervision of its Funds. As
investment adviser to the Fund, the Adviser shall furnish
continuously an investment program and shall determine from time
to time what securities shall be purchased, sold or exchanged and
what portion of the assets of the Fund shall be held uninvested,
subject always to the applicable restrictions of the Articles of
Organization, By-Laws and registration statement of the Fund
under the Investment Company Act of 1940, all as from time to
time amended. Should the Directors of the Fund at any time,
however, make any specific determination as to investment policy
and notify the Adviser thereof in writing, the Adviser shall be
bound by such determination for the period, if any, specified in
such notice or until similarly notified that such determination
has been revoked. The Adviser shall take, on behalf of the Fund,
all actions which it deems necessary or desirable to implement
the investment policies of the Fund.
4. The Adviser shall place all orders for the purchase or
sale of portfolio securities for the Fund's account with brokers
or dealers selected by the Adviser, and to that end the Adviser
is authorized as the agent of the Fund to give instructions to
the custodian of the Fund as to deliveries of securities and
payments of cash for the account of the Fund. In connection with
the selection of such brokers or dealers and the placing of such
orders, the Adviser shall use its best efforts to seek to execute
Fund portfolio security transactions at prices which are
advantageous to the Fund and (when a disclosed commission is
being charged) at reasonably competitive commission rates. In
selecting brokers or dealers qualified to execute a particular
transaction, brokers or dealers may be selected who also provide
brokerage and research services (as those terms are defined in
Section 28(e) of the Securities Exchange Act of 1934) to the
Adviser and the Adviser is expressly authorized to pay any broker
or dealer who provides such brokerage and research services a
commission for executing a Fund portfolio security transaction
which is in excess of the amount of commission another broker or
dealer would have charged for effecting that transaction if the
Adviser determines in good faith that such amount of commission
is reasonable in relation to the value of the brokerage and
research services provided by such broker or dealer, viewed in
terms of either that particular transaction or the overall
responsibilities which the Adviser and its affiliates have with
respect to accounts over which they exercise investment
discretion.
5. For the services, payments and facilities to be
furnished hereunder by the Adviser, the Fund shall pay to the
Adviser on the last day of each month a fee of 5/96 of 1% of the
average daily net assets of the Fund throughout the month,
computed in accordance with the Articles of Organization of the
Fund and applicable votes of the Board of Directors of the Fund.
In case of initiation or termination of this Agreement during any
month, the fee for that month shall be reduced proportionately on
the basis of the number of calendar days during which it is in
effect and the fee shall be computed upon the average net assets
for the business days it is so in effect for that month.
6. It is understood that the Fund will pay all expenses
other than those expressly stated to be payable by the Adviser
hereunder, which expenses payable by the Fund shall include,
without implied limitation, (i) expenses of maintaining the Fund
and continuing its existence, (ii) registration of the Fund under
the Investment Company Act of 1940, (iii) commissions, fees and
other expenses connected with the purchase or sale of securities,
(iv) auditing, accounting and legal expenses, (v) taxes and
interest, (vi) governmental fees, (vii) expenses of issue, sale,
repurchase and redemption of shares, (viii) expenses of
registering and qualifying the Fund and its shares under federal
and state securities laws and of preparing and printing
prospectus for such purposes and for distributing the same to
shareholders and investors, (ix) expenses of reports and notices
to shareholders and of meetings of shareholders and proxy
solicitations therefor, (x) expenses of reports to governmental
officers and commissions, (xi) insurance expenses, (xii)
association membership dues, (xiii) fees, expenses and
disbursements of custodians and subcustodians for all services to
the Fund (including without limitation safekeeping of funds and
securities, keeping of books and accounts and determination of
net asset values), (xiv) fees, expenses and disbursements of
transfer agents, dividend disbursing agents, shareholder
servicing agents and registrars for all services to the Fund,
(xv) expenses for servicing shareholder accounts, (xvi) any
direct charges to shareholders approved by the Directors of the
Fund, (xvii) compensation and expenses of Directors of the Fund
who are not members of the Adviser's organization, and (xviii)
such non-recurring items as may arise, including expenses
incurred in connection with litigation, proceedings and claims
and the obligation of the Fund to indemnify its Directors and
officers with respect thereto.
7. It is understood that Directors, officers and
shareholders of the Fund are or may be or become interested in
the Adviser as trustees, officers, employees, shareholders or
otherwise and that trustees, officers, employees and shareholders
of the Adviser are or may be or become similarly interested in
the Fund, and that the Adviser may be or become interested in the
Fund as shareholder or otherwise. It is also understood that
trustees, officers, employees and shareholders of the Adviser may
be or become interested (as directors, officers, employees,
stockholders or otherwise in other companies or entities
(including, without limitation, other investment companies)which
the adviser may organize, sponsor or acquire, or with which it
may merge or consolidate, and which may include the words "Eaton
Vance" or "Eaton & Howard" or "Vance Sanders" or any combination
thereof as part of their name, and that the Adviser or its
subsidiaries or affiliates may enter into advisory or management
agreements or other contracts or relationships with such other
companies or entities.
8. The services of the Adviser to the Fund are not to be
deemed to be exclusive, the Adviser being free to render services
to others and engage in other business activities. In the
absence of willful misfeasance, bad faith, gross negligence or
reckless disregard of obligations or duties hereunder on the part
of the Adviser, the Adviser shall not be subject to liability to
the Fund or to any shareholder of the Fund for any act or
omission in the course of, or connected with, rendering services
hereunder or for any losses which may be sustained in the
purchase, holding or sale of any security.
9. This Agreement shall become effective upon the date of
its execution, and, unless terminated as herein provided, shall
remain in full force and effect through and including February
28, 1991 and shall continue in full force and effect
indefinitely thereafter, but only so long as such continuance
after February 28, 1991* is specifically approved at least
annually (i) by the Board of Directors of the Fund or by vote of
a majority of the outstanding voting securities of the Fund, and
(ii) by the vote of a majority of those Directors of the Fund who
are not interested persons of the Adviser or the Fund cast in
person at a meeting called for the purpose of voting on such
approval.
Either party hereto may, at any time on sixty (60) days'
prior written notice to the other, terminate this Agreement
without the payment of any penalty, by action of the Directors of
the Fund or the trustees of the Adviser, as the case may be, and
the Fund may, at any time upon such written notice to the
Adviser, terminate this Agreement by vote of a majority of the
outstanding voting securities of the Fund. This Agreement shall
terminate automatically in the event of its assignment.
10. This Agreement may be amended by a writing signed by
both parties hereto, provided that no amendment to this Agreement
shall be effective until approved (i) by the vote of a majority
of those Directors of the Fund who are not interested persons of
the Adviser or the Fund cast in person at a meeting called for
the purpose of voting on such approval, and (ii) by vote of a
majority of the outstanding voting securities of the Fund.
11. The terms "vote of a majority of the outstanding voting
securities", "assignment", and "interested persons", when used
herein, shall have the respective meanings specified in the
Investment Company Act of 1940 as now in effect or as hereafter
amended, subject, however, to such exemptions as may be granted
by the Securities and Exchange Commission by any rule, regulation
or order.
12. This Agreement, originally executed on July 23, 1982,
has been re-executed by the Adviser and the Fund on November 1,
1990. This Agreement replaced a Management Agreement dated June
24, 1975.
DEPOSITORS FUND OF BOSTON, INC.
By:/s/ Landon T. Clay
EATON VANCE MANAGEMENT
By:/s/ Curtis H. Jones
Vice President
and not individually
<PAGE>
EXHIBIT 99.8
Depositors Fund of Boston, Inc.
24 Federal Street
Boston, MA 02110
(617) 482-8260
December 17,
1990
Depositors Fund of Boston, 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.
DEPOSITORS FUND OF BOSTON, 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-
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-
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
<PAGE>
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.
* * * * *
<TABLE> <S> <C>
<ARTICLE> 6
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> MAR-31-1995
<PERIOD-END> MAR-31-1995
<INVESTMENTS-AT-COST> 47,097
<INVESTMENTS-AT-VALUE> 60,004
<RECEIVABLES> 143
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<NET-CHANGE-FROM-OPS> 8,758
<EQUALIZATION> 0
<DISTRIBUTIONS-OF-INCOME> 0
<DISTRIBUTIONS-OF-GAINS> 0
<DISTRIBUTIONS-OTHER> 0
<NUMBER-OF-SHARES-SOLD> 0
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<SHARES-REINVESTED> 0
<NET-CHANGE-IN-ASSETS> 5,216
<ACCUMULATED-NII-PRIOR> 0
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<PER-SHARE-NAV-BEGIN> 0
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<PER-SHARE-NAV-END> 95.16
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</TABLE>
