As filed with the Securities and Exchange Commission on April 28, 1998
File No. 811-8014
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM N-1A
REGISTRATION STATEMENT
UNDER
THE INVESTMENT COMPANY ACT OF 1940 [X]
AMENDMENT NO. 5 [X]
UTILITIES PORTFOLIO
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(formerly Total Return Portfolio)
(Exact Name Of Registrant As Specified In Charter)
24 Federal Street
Boston, Massachusetts 02110
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(Address Of Principal Executive Offices)
(617) 482-8260
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(Registrant's Telephone Number, including Area Code)
Alan R. Dynner
24 Federal Street, Boston, Massachusetts 02110
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(Name and Address of Agent for Service)
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EXPLANATORY NOTE
This Registration Statement Amendment contains information regarding
Utilities Portfolio (formerly Total Return Portfolio) (the "Portfolio"). Certain
information concerning the Portfolio is incorporated by reference from Amendment
No. 51 to the Registration Statement of Eaton Vance Special Investment Trust
(File No. 2-27962 under the Securities Act of 1933 (the "1933 Act")) (the
"Amendment"), which was filed electronically with the Securities and Exchange
Commission on April 23, 1998 (Accession No. 0000950156-98-000321). The Amendment
contains the prospectus and statement of additional information ("SAI") of Eaton
Vance Utilities Fund (formerly Eaton Vance Total Return Fund) (the "Feeder
Fund"), which invests substantially all of its assets in the Portfolio.
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PART A
Responses to Items 1 through 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
The Portfolio is a diversified, open-end management investment company
which was organized as a trust under the laws of the State of New York on May 1,
1992. Interests in the Portfolio are issued solely in private placement
transactions that do not involve any "public offering" within the meaning of
Section 4(2) of the 1933 Act. Investments in the Portfolio may be made only by
U.S. and foreign investment companies, common or commingled trust funds,
organizations or trusts described in Sections 401(a) or 501(a) of the Internal
Revenue Code of 1986, as amended (the "Code"), or similar organizations or
entities that are "accredited investors" within the meaning of Regulation D
under the 1933 Act. This Registration Statement, as amended, does not constitute
an offer to sell, or the solicitation of an offer to buy, any "security" within
the meaning of the 1933 Act.
The Portfolio is not intended to be a complete investment program, and a
prospective investor should take into account its objectives and other
investments when considering the purchase of an interest in the Portfolio. The
Portfolio cannot assure achievement of its investment objective(s).
The Portfolio seeks to achieve its objective by investing principally in
dividend-paying common stocks with the potential to increase dividends in the
future. The Portfolio concentrates its investments in common stocks of utilities
("utility stocks"). "Utilities" are companies engaged in the manufacture,
production, generation, transmission, sale and distribution of water, gas and
electric energy, as well as companies engaged in the communications field,
including telephone, telegraph, satellite, cable, microwave, radio-telephone
mobile communication and cellular paging, electronic mail, videotext and
teletext. Registrant incorporates by reference additional information concerning
the Portfolio's investment objective(s) and investment practices from "The
Funds' Investment Objectives" and "Investment Policies and Risks" in the Feeder
Fund prospectus.
ITEM 5. MANAGEMENT OF THE PORTFOLIO
Registrant incorporates by reference information concerning the Portfolio's
management from "Management of the Funds and the Portfolios" in the Feeder Fund
prospectus.
ITEM 6. CAPITAL STOCK AND OTHER SECURITIES
Registrant incorporates by reference information concerning interests in
the Portfolio from "Organization of the Funds and the Portfolios" in the Feeder
Fund prospectus and "Other Information" in the Feeder Fund SAI. An interest in
the Portfolio has no preemptive or conversion rights and is fully paid and
nonassessable by the Portfolio, except as described under "Organization of the
Funds and the Portfolios" in the Feeder Fund prospectus.
As of March 31, 1998, the Feeder Fund controlled the Portfolio by virtue of
owning approximately 99.9% of the outstanding voting interests of the Portfolio.
A-1
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The net asset value of the Portfolio is determined each day on which the
New York Stock Exchange (the "Exchange") is open for trading ("Portfolio
Business Day"). This determination is made each Portfolio Business Day as of the
close of regular trading on the Exchange (currently 4:00 p.m., New York time)
(the "Portfolio Valuation Time").
Each investor in the Portfolio may add to or reduce its investment in the
Portfolio on each Portfolio Business Day as of the Portfolio Valuation Time. The
value of each investor's interest in the Portfolio will be determined by
multiplying the net asset value of the Portfolio by the percentage, determined
on the prior Portfolio Business Day, which represented that investor's share of
the aggregate interest in the Portfolio on such prior day. Any additions or
withdrawals for the current Portfolio Business Day will then be recorded. Each
investor's percentage of the aggregate interest in the Portfolio will then be
recomputed as a percentage equal to a fraction (i) the numerator of which is the
value of such investor's investment in the Portfolio as of the Portfolio
Valuation Time on the prior Portfolio Business Day plus or minus, as the case
may be, the amount of any additions to or withdrawals from the investor's
investment in the Portfolio on the current Portfolio Business Day and (ii) the
denominator of which is the aggregate net asset value of the Portfolio as of the
Portfolio Valuation Time on the prior Portfolio Business Day plus or minus, as
the case may be, the amount of the net additions to or withdrawals from the
aggregate investment in the Portfolio on the current Portfolio Business Day by
all investors in the Portfolio. The percentage so determined will then be
applied to determine the value of the investor's interest in the Portfolio for
the current Portfolio Business Day.
The Portfolio will allocate at least annually among its investors its net
investment income, net realized capital gains, and any other items of income,
gain, loss, deduction or credit. The Portfolio's net investment income consists
of all income accrued on the Portfolio's assets, less all actual and accrued
expenses of the Portfolio, determined in accordance with generally accepted
accounting principles.
Under the anticipated method of operation of the Portfolio, the Portfolio
will not be subject to any federal income tax. (See Part B, Item 20.) However,
each investor in the Portfolio will take into account its allocable share of the
Portfolio's ordinary income and capital gain in determining its federal income
tax liability. The determination of each such share will be made in accordance
with the governing instruments of the Portfolio, which are intended to comply
with the requirements of the Code and the regulations promulgated thereunder.
It is intended that the Portfolio's assets and income will be managed in
such a way that an investor in the Portfolio that seeks to qualify as a
regulated investment company ("RIC") under the Code will be able to satisfy the
requirements for such qualification.
ITEM 7. PURCHASE OF INTERESTS IN THE PORTFOLIO
Interests in the Portfolio are issued solely in private placement
transactions that do not involve any "public offering" within the meaning of
Section 4(2) of the 1933 Act. See "General Description of Registrant" above.
Registrant incorporates by reference information concerning the computation
of net asset value and valuation of Portfolio securities from "Valuing Shares"
in the Feeder Fund prospectus. For further information, see Item 19 of Part B.
There is no minimum initial or subsequent investment in the Portfolio. The
Portfolio reserves the right to cease accepting investments at any time or to
reject any investment order.
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The placement agent for the Portfolio is Eaton Vance Distributors, Inc.
("EVD"), a wholly-owned subsidiary of Eaton Vance Management. The principal
business address of EVD is 24 Federal Street, Boston, Massachusetts 02110. EVD
receives no compensation for serving as the placement agent for the Portfolio.
ITEM 8. REDEMPTION OR DECREASE OF INTEREST
An investor in the Portfolio may withdraw all of (redeem) or any portion of
(decrease) its interest in the Portfolio if a withdrawal request in proper form
is furnished by the investor to the Portfolio. All withdrawals will be effected
as of the next Portfolio Valuation Time. The proceeds of a withdrawal will be
paid by the Portfolio normally on the Portfolio Business Day the withdrawal is
effected, but in any event within seven days. The Portfolio reserves the right
to pay the proceeds of a withdrawal (whether a redemption or decrease) by a
distribution in kind of portfolio securities (instead of cash). The securities
so distributed would be valued at the same amount as that assigned to them in
calculating the net asset value for the interest (whether complete or partial)
being withdrawn. If an investor received a distribution in kind upon such
withdrawal, the investor could incur brokerage and other charges in converting
the securities to cash. The Portfolio has filed with the Securities and Exchange
Commission (the "Commission") a notification of election on Form N-18F-1
committing to pay in cash all requests for withdrawals by any investor, limited
in amount with respect to such investor during any 90 day period to the lesser
of (a) $250,000 or (b) 1% of the net asset value of the Portfolio at the
beginning of such period.
Investments in the Portfolio may not be transferred.
The right of any investor to receive payment with respect to any withdrawal
may be suspended or the payment of the withdrawal proceeds postponed during any
period in which the Exchange is closed (other than weekends or holidays) or
trading on the Exchange is restricted or, to the extent otherwise permitted by
the Investment Company Act of 1940 (the "Act"), if an emergency exists, or
during any other period permitted by order of the Commission for the protection
of investors.
ITEM 9. PENDING LEGAL PROCEEDINGS
Not applicable.
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PART B
ITEM 10. COVER PAGE.
Not applicable.
ITEM 11. TABLE OF CONTENTS.
PAGE
General Information and History.........................................B-1
Investment Objective(s) and Policies ...................................B-1
Management of the Portfolio ............................................B-1
Control Persons and Principal Holder of Securities......................B-1
Investment Advisory and Other Services .................................B-2
Brokerage Allocation and Other Practices................................B-2
Capital Stock and Other Securities .....................................B-2
Purchase, Redemption and Pricing of Securities .........................B-4
Tax Status..............................................................B-4
Underwriters ...........................................................B-6
Calculation of Performance Data.........................................B-6
Financial Statements....................................................B-6
ITEM 12. GENERAL INFORMATION AND HISTORY.
Not applicable.
ITEM 13. INVESTMENT OBJECTIVE(S) AND POLICIES.
Part A contains additional information about the investment objective(s)
and policies of the Portfolio. This Part B should be read in conjunction with
Part A. Capitalized terms used in this Part B and not otherwise defined have the
meanings given them in Part A.
Registrant incorporates by reference additional information concerning the
investment policies of the Portfolio as well as information concerning the
investment restrictions of the Portfolio from "Additional Information about
Investment Policies" and "Investment Restrictions" in the Feeder Fund SAI.
ITEM 14. MANAGEMENT OF THE PORTFOLIO
Registrant incorporates by reference additional information concerning the
management of the Portfolio from "Trustees and Officers" and "Investment Adviser
and Administrator" in the Feeder Fund SAI.
ITEM 15. CONTROL PERSONS AND PRINCIPAL HOLDER OF SECURITIES
Because the Feeder Fund controls the Portfolio as set forth in Item 6 of
Part A above, the Feeder Fund may take actions without the approval of any other
investor. The Feeder Fund has informed the Portfolio that whenever it is
requested to vote on matters pertaining to the fundamental policies of the
Portfolio, it will hold a meeting of shareholders and will cast its vote as
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instructed by its shareholders. It is anticipated that any other investor in the
Portfolio which is an investment company registered under the 1940 Act would
follow the same or a similar practice. The Feeder Fund is a series of Eaton
Vance Special Investment Trust, an open-end management investment company
organized as a business trust under the laws of the Commonwealth of
Massachusetts. The address of the Feeder Fund is 24 Federal Street, Boston, MA
02110.
ITEM 16. INVESTMENT ADVISORY AND OTHER SERVICES
Registrant incorporates by reference information concerning investment
advisory and other services provided to the Portfolio from "Investment Adviser
and Administrator", "Custodian" and "Independent Accountants" in the Feeder Fund
SAI.
ITEM 17. BROKERAGE ALLOCATION AND OTHER PRACTICES
Registrant incorporates by reference information concerning the brokerage
practices of the Portfolio from "Portfolio Security Transactions" in the Feeder
Fund SAI.
ITEM 18. CAPITAL STOCK AND OTHER SECURITIES
Under the Portfolio's Declaration of Trust, the Trustees are authorized to
issue interests in the Portfolio. Investors are entitled to participate pro rata
in distributions of taxable income, loss, gain and credit of the Portfolio. Upon
dissolution of the Portfolio, the Trustees shall liquidate the assets of the
Portfolio and apply and distribute the proceeds thereof as follows: (a) first,
to the payment of all debts and obligations of the Portfolio to third parties
including, without limitation, the retirement of outstanding debt, including any
debt owed to holders of record of interests in the Portfolio ("Holders") or
their affiliates, and the expenses of liquidation, and to the setting up of any
reserves for contingencies which may be necessary; and (b) second, in accordance
with the Holders' positive Book Capital Account balances after adjusting Book
Capital Accounts for certain allocations provided in the Declaration of Trust
and in accordance with the requirements described in Treasury Regulations
Section 1.704-1(b)(2)(ii)(b) (2). Notwithstanding the foregoing, if the Trustees
shall determine that an immediate sale of part or all of the assets of the
Portfolio would cause undue loss to the Holders, the Trustees, in order to avoid
such loss, may, after having given notification to all the Holders, to the
extent not then prohibited by the law of any jurisdiction in which the Portfolio
is then formed or qualified and applicable in the circumstances, either defer
liquidation of and withhold from distribution for a reasonable time any assets
of the Portfolio except those necessary to satisfy the Portfolio's debts and
obligations or distribute the Portfolio's assets to the Holders in liquidation.
Certificates representing an investor's interest in the Portfolio are issued
only upon the written request of a Holder.
Each Holder is entitled to vote in proportion to the amount of its interest
in the Portfolio. Holders do not have cumulative voting rights. The Portfolio is
not required and has no current intention to hold annual meetings of Holders but
the Portfolio will hold meetings of Holders when in the judgment of the
Portfolio's Trustees it is necessary or desirable to submit matters to a vote of
Holders at a meeting. Any action which may be taken by Holders may be taken
without a meeting if Holders holding more than 50% of all interests entitled to
vote (or such larger proportion thereof as shall be required by any express
provision of the Declaration of Trust of the Portfolio) consent to the action in
writing and the consents are filed with the records of meetings of Holders.
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The Portfolio's Declaration of Trust may be amended by vote of Holders of
more than 50% of all interests in the Portfolio at any meeting of Holders or by
an instrument in writing without a meeting, executed by a majority of the
Trustees and consented to by the Holders of more than 50% of all interests. The
Trustees may also amend the Declaration of Trust (without the vote or consent of
Holders) to change the Portfolio's name or the state or other jurisdiction whose
law shall be the governing law, to supply any omission or cure, correct or
supplement any ambiguous, defective or inconsistent provision, to conform the
Declaration of Trust to applicable federal law or regulations or to the
requirements of the Code, or to change, modify or rescind any provision,
provided that such change, modification or rescission is determined by the
Trustees to be necessary or appropriate and not to have a materially adverse
effect on the financial interests of the Holders. No amendment of the
Declaration of Trust which would change any rights with respect to any Holder's
interest in the Portfolio by reducing the amount payable thereon upon
liquidation of the Portfolio may be made, except with the vote or consent of the
Holders of two-thirds of all interests. References in the Declaration of Trust
and in Part A or this Part B to a specified percentage of, or fraction of,
interests in the Portfolio, means Holders whose combined Book Capital Account
balances represent such specified percentage or fraction of the combined Book
Capital Account balance of all, or a specified group of, Holders.
The Portfolio may merge or consolidate with any other corporation,
association, trust or other organization or may sell or exchange all or
substantially all of its assets upon such terms and conditions and for such
consideration when and as authorized by the Holders of (a) 67% or more of the
interests in the Portfolio present or represented at the meeting of Holders, if
Holders of more than 50% of all interests are present or represented by proxy,
or (b) more than 50% of all interests, whichever is less. The Portfolio may be
terminated (i) by the affirmative vote of Holders of not less than two- thirds
of all interests at any meeting of Holders or by an instrument in writing
without a meeting, executed by a majority of the Trustees and consented to by
Holders of not less than two-thirds of all interests, or (ii) by the Trustees by
written notice to the Holders.
In accordance with the Declaration of Trust, there normally will be no
meetings of the investors for the purpose of electing Trustees unless and until
such time as less than a majority of the Trustees holding office have been
elected by investors. In such an event, the Trustees of the Portfolio then in
office will call an investors' meeting for the election of Trustees. Except for
the foregoing circumstances, and unless removed by action of the investors in
accordance with the Portfolio's Declaration of Trust, the Trustees shall
continue to hold office and may appoint successor Trustees.
The Declaration of Trust provides that no person shall serve as a Trustee
if investors holding two-thirds of the outstanding interests have removed him
from that office either by a written declaration filed with the Portfolio's
custodian or by votes cast at a meeting called for that purpose. The Declaration
of Trust further provides that under certain circumstances, the investors may
call a meeting to remove a Trustee and that the Portfolio is required to provide
assistance in communicating with investors about such a meeting.
The Declaration of Trust provides that obligations of the Portfolio are not
binding upon the Trustees individually but only upon the property of the
Portfolio and that the Trustees will not be liable for any action or failure to
act, but nothing in the Declaration of Trust protects a Trustee against any
liability 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.
B-3
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ITEM 19. PURCHASE, REDEMPTION AND PRICING OF SECURITIES
See "Purchase of Interests in the Portfolio" and "Redemption or Decrease of
Interest" in Part A.
Registrant incorporates by reference information concerning valuation of
the Portfolio's assets from "Determination of Net Asset Value" in the Feeder
Fund SAI.
ITEM 20. TAX STATUS
The Portfolio has been advised by tax counsel that, provided the Portfolio
is operated at all times during its existence in accordance with certain
organizational and operational documents, the Portfolio should be classified as
a partnership under the Code, and it should not be a "publicly traded
partnership" within the meaning of Section 7704 of the Code. Consequently, the
Portfolio does not expect that it will be required to pay any federal income tax
and a Holder will be required to take into account in determining its federal
income tax liability its share of the Portfolio's income, gains, losses,
deductions and credits.
Under Subchapter K of the Code, a partnership is considered to be either an
aggregate of its members or a separate entity depending upon the factual and
legal context in which the question arises. Under the aggregate approach, each
partner is treated as an owner of an undivided interest in partnership assets
and operations. Under the entity approach, the partnership is treated as a
separate entity in which partners have no direct interest in partnership assets
and operations. The Portfolio has been advised by tax counsel that, in the case
of a Holder that seeks to qualify as a RIC, the aggregate approach should apply,
and each such Holder should accordingly be deemed to own a proportionate share
of each of the assets of the Portfolio and to be entitled to the gross income of
the Portfolio attributable to that share for purposes of all requirements of
Sections 851(b), 852(b)(5), 853(a) and 854 of the Code. Further, the Portfolio
has been advised by tax counsel that each Holder that seeks to qualify as a RIC
should be deemed to hold its proportionate share of the Portfolio's assets for
the period the Portfolio has held the assets or for the period the Holder has
been an investor in the Portfolio, whichever is shorter. Investors should
consult their tax advisers regarding whether the entity or the aggregate
approach applies to their investment in the Portfolio in light of their
particular tax status and any special tax rules applicable to them.
In order to enable a Holder (that is otherwise eligible) to qualify as a
RIC, the Portfolio intends to satisfy the requirements of Subchapter M of the
Code relating to sources of income and diversification of assets as if they were
applicable to the Portfolio and to permit withdrawals in a manner that will
enable a Holder which is a RIC to comply with the distribution requirements
applicable to RICs (including those under Sections 852 and 4982 of the Code. The
Portfolio will allocate at least annually to each Holder it's distributive share
of the Portfolio's net investment income, net realized capital gains, and any
other items of income, gain, loss, deduction or credit in a manner intended to
comply with the Code and applicable Treasury regulations. Tax counsel has
advised the Portfolio that the Portfolio's allocations of taxable income and
loss should have "economic effect" under applicable Treasury regulations.
To the extent the cash proceeds of any withdrawal (or, under certain
circumstances, such proceeds plus the value of any marketable securities
distributed to an investor) ("liquid proceeds") exceed a Holder's adjusted basis
of his interest in the Portfolio, the Holder will generally realize a gain for
federal income tax purposes. If, upon a complete withdrawal (redemption of the
entire interest), a Holder receives only liquid proceeds (and/or unrealized
receivables) and the Holder's adjusted basis of his interest exceeds the liquid
proceeds of such withdrawal, the Holder will generally realize a loss for
B-4
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federal income tax purposes. In addition, on a distribution to a Holder from the
Portfolio (whether pursuant to a partial or complete withdrawal or otherwise),
(1) income or gain will be recognized if the distribution is in liquidation of
the Holder's entire interest in the Portfolio and includes a disproportionate
share of any unrealized receivables held by the Portfolio and (2) gain or loss
may be recognized on a distribution to a Holder that contributed property to the
Portfolio. The tax consequences of a withdrawal of property (instead of or in
addition to liquid proceeds) will be different and will depend on the specific
factual circumstances. A Holder's adjusted basis of an interest in the Portfolio
will generally be the aggregate prices paid therefor (including the adjusted
basis of contributed property and any gain recognized on the contribution
thereof), increased by the amounts of the Holder's distributive share of items
of income (including interest income exempt from federal income tax) and
realized net gain of the Portfolio, and reduced, but not below zero, by (i) the
amounts of the Holder's distributive share of items of Portfolio loss, and (ii)
the amount of any cash distributions (including distributions of interest income
exempt from federal income tax and cash distributions on withdrawals from the
Portfolio) and the basis to the Holder of any property received by such Holder
other than in liquidation, and (iii) the Holder's distributive share of the
Portfolio's nondeductible expenditures not properly chargeable to capital
account. Increases or decreases in a Holder's share of the Portfolio's
liabilities may also result in corresponding increases or decreases in such
adjusted basis.
The Portfolio's transactions in options, futures contracts, forward
contracts and certain other transactions involving foreign exchange gain or loss
will be subject to special tax rules, the effect of which may be to accelerate
income to the Portfolio, defer Portfolio losses, cause adjustments in the
holding periods of Portfolio securities, convert capital gain into ordinary
income and convert short-term capital losses into long-term capital losses. For
example, the tax treatment of many types of options, futures contracts and
forward contacts entered into by the Portfolio will be governed by Section 1256
of the Code. Absent a tax election for "mixed straddles" (see below), each such
position held by the Portfolio on the last business day of each taxable year
will be marked to market (i.e., treated as if it were closed out on such day),
and any resulting gain or loss, except for certain currency-related positions,
will generally be treated as 60% long-term and 40% short-term capital gain or
loss, with subsequent adjustments made to any gain or loss realized upon an
actual disposition of such positions. When the Portfolio holds an option or
contract governed by Section 1256 which substantially diminishes the Holder's
risk of loss with respect to another position of the Portfolio not governed by
Section 1256 (as might occur in some hedging transactions), this combination of
positions could be a "mixed straddle" which is generally subject to special tax
rules requiring deferral of losses and other adjustments in addition to being
subject in part to Section 1256. The Portfolio may make certain tax elections
for its "mixed straddles" which could alter certain effects of these rules.
Income from transactions in options derived by the Portfolio with respect
to its business of investing in securities will qualify as permissible income
for its Holders that are RICs under the requirement that at least 90% of a RIC's
gross income each taxable year consist of specified types of income.
The Portfolio may be subject to foreign withholding or other foreign taxes
with respect to income (possibly including, in some cases, capital gains) on
certain foreign securities. These taxes may be reduced or eliminated under the
terms of an applicable U.S. income tax treaty. The anticipated extent of the
Portfolio's investment in foreign securities is such that it is not expected
that an investor that is a RIC will be eligible to pass through to its
shareholders foreign taxes paid by the Portfolio and allocated to the investor,
so that shareholders of such a RIC will not be entitled to foreign tax credits
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or deductions for foreign taxes paid by the Portfolio. Certain foreign exchange
gains and losses realized by the Portfolio and allocated to the RIC will be
treated as ordinary income and losses. Certain uses of foreign currency and
investment by the Portfolio in the stock of certain "passive foreign investment
companies" may be limited or a tax election may be made, if available, in order
to enable an investor that is a RIC to preserve its qualification as a RIC or to
avoid imposition of a tax on such an investor.
The Portfolio's investments, if any, in securities issued with original
issue discount (possibly including certain asset-related securities) or
securities acquired at a market discount (if an election is made to include
accrued market discount in current income) will cause it to realize income prior
to the receipt of cash payments with respect to these securities. In order to
enable a Holder to distribute its proportionate share of this income, the
Portfolio may be required to liquidate portfolio securities that is might
otherwise have continued to hold in order to generate cash that the Holder may
withdraw from the Portfolio for subsequent distribution to such Holder's
shareholders.
An entity that is treated as a partnership under the Code, such as the
Portfolio, is generally treated as a partnership under state and local tax laws,
but certain states may have different entity classification criteria and may
therefore reach a different conclusion. Entities that are classified as
partnerships are not treated as taxable entities under most state and local tax
laws, and the income of a partnership is considered to be income of partners
both in timing and in character.
The foregoing discussion does not address the special tax rules applicable
to certain classes of investors, such as tax-exempt entities, insurance
companies and financial institutions. Investors should consult their own tax
advisers with respect to special tax rules that may apply in their particular
situations, as well as the state, local or foreign tax consequences of investing
in the Portfolio.
ITEM 21. UNDERWRITERS
The placement agent for the Portfolio is EVD. Investment companies, common
and commingled trust funds, and similar organizations and entities may
continuously invest in the Portfolio.
ITEM 22. CALCULATION OF PERFORMANCE DATA
Not applicable.
ITEM 23. FINANCIAL STATEMENTS
The following audited financial statements of the Portfolio are
incorporated by reference into this Part B and have been so incorporated in
reliance upon the report of Coopers & Lybrand L.L.P., independent accountants,
as experts in accounting and auditing.
Portfolio of Investments as of December 31, 1997
Statement of Assets and Liabilities as of December 31, 1997
Statement of Operations for the fiscal year ended December 31, 1997
Statement of Changes in Net Assets for the fiscal years ended
December 31, 1997 and 1996
Supplementary Data for the fiscal years ended December 31, 1997,
1996 and 1995
Notes to Financial Statements
Report of Independent Auditors
For purposes of the EDGAR filing of this amendment to the Portfolio's
registration statement, the Portfolio incorporates by reference the above
audited financial statements, as previously filed electronically with the
Commission (Accession No. 0000950109-98-001827).
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PART C
ITEM 24. FINANCIAL STATEMENTS AND EXHIBITS
(a) Financial Statements
The financial statements called for by this Item are incorporated by
reference in Part B and listed in Item 23 hereof.
(b) Exhibits
1(a).Declaration of Trust dated May 1, 1992 filed as Exhibit No. 1 to
Amendment No. 3 and incorporated herein by reference.
(b). Amendment to Declaration of Trust dated June 14, 1993 filed as Exhibit
No. 1(b) to Amendment No. 4 and incorporated herein by reference.
(c). Amendment to Declaration of Trust effective May 1, 1998 filed
herewith.
2. By-Laws of the Registrant adopted May 1, 1992 filed as Exhibit No. 2
to Amendment No. 3 and incorporated herein by reference.
5. Investment Advisory Agreement between the Registrant and Boston
Management and Research dated October 28, 1993 filed as Exhibit No. 5
to Amendment No. 3 and incorporated herein by reference.
6. Placement Agent Agreement with Eaton Vance Distributors, Inc. dated
November 1, 1996 filed as Exhibit No. 6 to Amendment No. 4 and
incorporated herein by reference.
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 Trustees. See IN THE
MATTER OF CAPITAL EXCHANGE FUND, INC., Release No. IC-20671 (November
1, 1994).
8(a).Custodian Agreement with Investors Bank & Trust Company dated October
28, 1993 filed as Exhibit No. 8(a) to Amendment No. 3 and incorporated
herein by reference.
(b). Amendment to Custodian Agreement dated October 23, 1995 filed as
Exhibit No. 8(b) to Amendment No. 3 and incorporated herein by
reference.
13. Investment representation letter of Eaton Vance Total Return Trust (on
behalf of EV Traditional Total Return Fund) dated September 27, 1993
filed as Exhibit No. 13 to Amendment No. 3 and incorporated herein by
reference.
ITEM 25. PERSONS CONTROLLED BY OR UNDER COMMON CONTROL WITH REGISTRANT
Not applicable.
C-1
<PAGE>
ITEM 26. NUMBER OF HOLDERS OF SECURITIES
(1) (2)
Number of
Title of Class Record Holders
-------------- --------------
Interests As of March 31, 1998
3
ITEM 27. INDEMNIFICATION
Article V of the Registrant's Declaration of Trust contains indemnification
provisions for Trustees and officers. The Trustees and officers of the
Registrant and the personnel of the Registrant's investment adviser are insured
under an errors and omissions liability insurance policy.
The Placement Agent Agreement also provides for reciprocal indemnity of the
placement agent, on the one hand, and the Trustees and officers, on the other.
ITEM 28. BUSINESS AND OTHER CONNECTIONS
To the knowledge of the Portfolio, none of the trustees or officers of the
Portfolio's investment adviser, except as set forth on its Form ADV as filed
with the Commission, is engaged in any other business, profession, vocation or
employment of a substantial nature, except that certain trustees and officers
also hold various positions with and engage in business for affiliates of the
investment adviser.
ITEM 29. PRINCIPAL UNDERWRITERS
Not applicable.
ITEM 30. LOCATION OF ACCOUNTS AND RECORDS
All applicable accounts, books and documents required to be maintained by
the Registrant by Section 31(a) of the 1940 Act and the Rules promulgated
thereunder are in the possession and custody of the Registrant's custodian,
Investors Bank & Trust Company, 200 Clarendon Street, Boston, MA 02116, with the
exception of certain corporate documents and portfolio trading documents, which
are in the possession and custody of the Registrant's investment adviser at 24
Federal Street, Boston, MA 02110. The Registrant is informed that all applicable
accounts, books and documents required to be maintained by registered investment
advisers are in the custody and possession of the Registrant's investment
adviser.
ITEM 31. MANAGEMENT SERVICES
Not applicable.
ITEM 32. UNDERTAKINGS
Not applicable.
C-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Investment Company Act of 1940, the
Registrant has duly caused this Amendment No. 5 to the Registration Statement on
Form N-1A to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Boston and Commonwealth of Massachusetts, on this
27th day of April, 1998.
UTILITIES PORTFOLIO
By /s/ M. Dozier Gardner
-----------------------------
M. Dozier Gardner
President
C-3
<PAGE>
INDEX TO EXHIBITS
Exhibit No. Description of Exhibit
----------- ----------------------
1(c). Amendment to Declaration of Trust effective May 1, 1998
C-4
EXHIBIT 1(c)
UTILITIES PORTFOLIO
(formerly called Total Return Portfolio)
AMENDMENT TO DECLARATION OF TRUST
AMENDMENT, to be effective May 1, 1998 to the Declaration of Trust made May
1, 1992, as amended June 14, 1993, (hereinafter called the "Declaration") of
Total Return Portfolio, a New York trust (hereinafter called the "Trust") by the
undersigned, being at least a majority of the Trustees of the Trust in office.
WHEREAS, Section 10.4 of Article X of the Declaration empowers a majority
of the Trustees of the Trust to amend the Declaration without the vote or
consent of Holders to change the name of the Trust;
NOW, THEREFORE, the undersigned Trustees, do hereby amend the Declaration
as of May 1, 1998 in the following manner:
1. The caption at the head of the Declaration is hereby amended to read as
follows:
UTILITIES PORTFOLIO
2. Section 1.1 of Article I of the Declaration is hereby amended to read as
follows:
ARTICLE I
1.1. NAME. The name of the trust created hereby (the "Trust") shall be
Utilities Portfolio and so far as may be practicable the Trustees shall conduct
the Trust's activities, execute all documents and sue or be sued under that
name, which name (and the word "Trust" wherever hereinafter used) shall refer to
the Trustees as Trustees, and not individually, and shall not refer to the
officers, employees, agents or independent contractors of the Trust or holders
of interests in the Trust.
<PAGE>
IN WITNESS WHEREOF, the undersigned Trustees have executed this instrument
this 27th day of April, 1998.
/s/ Donald R. Dwight /s/ Norton H. Reamer
- --------------------------- -----------------------------
Donald R. Dwight Norton H. Reamer
/s/ M. Dozier Gardner /s/ John L. Thorndike
- --------------------------- -----------------------------
M. Dozier Gardner John L. Thorndike
/s/ James B. Hawkes /s/ Jack L. Treynor
- --------------------------- -----------------------------
James B. Hawkes Jack L. Treynor
/s/ Samuel L. Hayes, III
- ---------------------------
Samuel L. Hayes, III
<TABLE> <S> <C>
<ARTICLE> 6
<CIK> 0000912751
<NAME> TOTAL RETURN PORTFOLIO
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> DEC-31-1997
<INVESTMENTS-AT-COST> 370,284,624
<INVESTMENTS-AT-VALUE> 437,161,305
<RECEIVABLES> 2,735,570
<ASSETS-OTHER> 2,592
<OTHER-ITEMS-ASSETS> 2,897
<TOTAL-ASSETS> 439,902,364
<PAYABLE-FOR-SECURITIES> 26,418,623
<SENIOR-LONG-TERM-DEBT> 0
<OTHER-ITEMS-LIABILITIES> 74,842
<TOTAL-LIABILITIES> 26,493,465
<SENIOR-EQUITY> 0
<PAID-IN-CAPITAL-COMMON> 346,511,992
<SHARES-COMMON-STOCK> 0
<SHARES-COMMON-PRIOR> 0
<ACCUMULATED-NII-CURRENT> 0
<OVERDISTRIBUTION-NII> 0
<ACCUMULATED-NET-GAINS> 0
<OVERDISTRIBUTION-GAINS> 0
<ACCUM-APPREC-OR-DEPREC> 66,896,907
<NET-ASSETS> 413,408,899
<DIVIDEND-INCOME> 18,358,463
<INTEREST-INCOME> 3,800,498
<OTHER-INCOME> 0
<EXPENSES-NET> 3,215,326
<NET-INVESTMENT-INCOME> 18,943,635
<REALIZED-GAINS-CURRENT> 34,486,025
<APPREC-INCREASE-CURRENT> 12,004,904
<NET-CHANGE-FROM-OPS> 65,434,564
<EQUALIZATION> 0
<DISTRIBUTIONS-OF-INCOME> 0
<DISTRIBUTIONS-OF-GAINS> 0
<DISTRIBUTIONS-OTHER> 0
<NUMBER-OF-SHARES-SOLD> 0
<NUMBER-OF-SHARES-REDEEMED> 0
<SHARES-REINVESTED> 0
<NET-CHANGE-IN-ASSETS> (41,658,096)
<ACCUMULATED-NII-PRIOR> 0
<ACCUMULATED-GAINS-PRIOR> 0
<OVERDISTRIB-NII-PRIOR> 0
<OVERDIST-NET-GAINS-PRIOR> 0
<GROSS-ADVISORY-FEES> 2,839,559
<INTEREST-EXPENSE> 0
<GROSS-EXPENSE> 3,215,326
<AVERAGE-NET-ASSETS> 428,562,778
<PER-SHARE-NAV-BEGIN> 0
<PER-SHARE-NII> 0
<PER-SHARE-GAIN-APPREC> 0
<PER-SHARE-DIVIDEND> 0
<PER-SHARE-DISTRIBUTIONS> 0
<RETURNS-OF-CAPITAL> 0
<PER-SHARE-NAV-END> 0
<EXPENSE-RATIO> 0.75
<AVG-DEBT-OUTSTANDING> 0
<AVG-DEBT-PER-SHARE> 0
</TABLE>
