As filed with the Securities and Exchange Commission on June 22, 1998.
-------------------------File No. 811-07363----------------------------
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM N-1A
REGISTRATION STATEMENT
UNDER THE INVESTMENT COMPANY ACT OF 1940
--
Amendment No. 4 /X/
--
GROWTH PORTFOLIO
(Exact Name of Registrant as Specified in Charter)
50 California Street, 27th Floor
San Francisco, California 94111
(Address of Principal Executive Offices)
Registrant's Telephone Number, including Area Code: 415-392-6181
Michael A. Silver, Esq.
INVESCO (NY), Inc.
50 California Street, 27th Floor
San Francisco, California 94111
(Name and Address of Agent for Service)
-----------------------------------------------------------------------
By this amendment to the registration statement on Form N-1A of Growth
Portfolio, a New York common law trust, the Registrant hereby adopts the
Notification of Registration and Registration Statement of such trust under
the Investment Company Act of 1940.
<PAGE>
EXPLANATORY NOTE
This Amendment to the Registration Statement of Growth Portfolio has been
filed by the Registrant pursuant to Section 8(b) of the Investment Company
Act of 1940, as amended (the "1940 Act"). However, beneficial interests in
the Registrant have not been registered under the Securities Act of 1933, as
amended (the "1933 Act") since such interests are offered 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 Registrant may
only be made by investment companies, insurance company separate accounts,
common or commingled trust funds or similar organizations or entities which
are "accredited investors" as defined in Regulation D under the 1933 Act.
This Amendment to the Registration Statement does not constitute an offer to
sell, or the solicitation of an offer to buy, any beneficial interests in the
Registrant.
<PAGE>
GROWTH PORTFOLIO
CONTENTS OF REGISTRATION STATEMENT
This registration statement of Growth Portfolio contains the following
documents:
Facing Sheet
Contents of Registration Statement
Part A
Part B
Part C
Signature Pages
Exhibits
<PAGE>
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.
Responses to certain Items required to be included in Part A of this
Registration Statement are incorporated herein by reference from
Post-Effective Amendment No. 42 to the Registration Statement of AIM Growth
Series ("Growth Series") (1940 Act File No. 811-2699), as filed with the
Securities and Exchange Commission ("SEC") on June 1, 1998 ("Feeder
Registration Statement"). Part A of the Feeder Registration Statement
includes the joint prospectus of the AIM Equity Funds ("Feeder's Part A").
Item 4. GENERAL DESCRIPTION OF REGISTRANT.
-------------------------------------------
Growth Portfolio is a diversified, open-end management investment company
which was organized as a Delaware business trust on May 7, 1998. On May 29,
1998, Growth Portfolio acquired the assets and assumed the liabilities of
Growth Portfolio, a New York common law trust.
Beneficial interests in Growth Portfolio are divided currently into two
separate subtrusts or "series" -- Small Cap Portfolio and Value Portfolio
(individually, a "Portfolio" and collectively, the "Portfolios") -- each
having a distinct investment objective and distinct investment policies. Each
Portfolio is described herein. Additional subtrusts of Growth Portfolio may
be organized at a later date. The assets of each Portfolio belong only to
that Portfolio, and the liabilities of each Portfolio are borne solely by
that Portfolio, and no other.
Beneficial interests in the Portfolios are offered solely in private
placement transactions which do not involve any "public offering" within the
meaning of Section 4(2) of the 1933 Act. Investments in the Portfolios may
only be made by investment companies, insurance company separate accounts,
common or commingled trust funds or similar organizations or entities which
are "accredited investors" as defined in Regulation D under the 1933 Act. The
Registration Statement does not constitute an offer to sell, or the
solicitation of an offer to buy, any "security" within the meaning of the
1933 Act.
Each Portfolio is managed and administered by A I M Advisors, Inc. ("AIM")
and is sub-advised and sub-administered by INVESCO (NY), Inc. (the
"Sub-adviser"). AIM and the Sub-adviser and their worldwide asset management
affiliates provide investment management and/or administrative services to
institutional, corporate and individual clients around the world. AIM and the
Sub-adviser are both indirect wholly owned subsidiaries of AMVESCAP PLC.
AMVESCAP PLC and its subsidiaries are in independent investment management
group that has a significant presence in the institutional and retail segment
of the investment management industry in North America and Europe, and a
growing presence in Asia.
A-1
<PAGE>
Information on the Portfolios' investment objectives, the kinds of
securities in which the Portfolios principally invest, other investment
practices of the Portfolios and the risk factors associated with investments
in the Portfolios are incorporated herein by reference from the sections
entitled "Investment Objectives and Policies" and "Risk Factors" in the
Feeder's Part A. Additional investment techniques, features and limitations
concerning the Portfolios' investment program are described in Part B of this
Registration Statement.
Item 5. MANAGEMENT OF THE PORTFOLIOS.
-------------------------------------
A description of how the business of the Portfolios is managed is
incorporated herein by reference from the section entitled "Management" in
the Feeder's Part A. The following list identifies the specific sections of
the Feeder's Part A under which the information required by Item 5 of Form
N-1A may be found; each listed section is incorporated herein by reference.
Item 5 (a) Management
Item 5 (b) Management--Investment Management
and Administration
Item 5 (c) Management
Item 5 (d) Management
Item 5 (e) Other Information--Transfer Agent
Item 5 (f) Management; Prospectus Summary
Item 5 (g) Management
Item 5A. MANAGEMENT'S DISCUSSION OF FUND PERFORMANCE.
------------------------------------------------------
Not Applicable.
Item 6. CAPITAL STOCK AND OTHER SECURITIES.
--------------------------------------------
Growth Portfolio is organized as a Delaware business trust. Under the
Portfolio's Agreement and Declaration of Trust, the Trustees are authorized
to issue beneficial interests in separate subtrusts or "series" of Growth
Portfolio. Growth Portfolio currently has two series (i.e., the Portfolios).
Growth Portfolio reserves the right to create and issue additional series.
Each investor in a Portfolio is entitled to participate equally in the
Portfolio's earnings and assets and to a vote in proportion to the amount of
its interest in the Portfolio. Investments in a Portfolio may not be
transferred, but an investor may withdraw all or any portion of its
investment at any time at net asset value ("NAV"). Under Delaware law, AIM
Small Cap Equity Fund ("Small Cap Fund"), AIM America Value Fund ("Value
Fund") and other entities investing in the Portfolios enjoy the same
A-2
<PAGE>
limitations of liability extended to shareholders of private, for-profit
corporations. There is a remote possibility, however, that under certain
circumstances an investor in a Portfolio may be held liable for the
Portfolio's obligations. However, Growth Portfolio's Agreement and
Declaration of Trust disclaims shareholder liability for acts or obligations
of the Portfolios and requires that notice of such disclaimer be given in
each agreement, obligation or instrument entered into or executed by the
Portfolios or a trustee. The Agreement and Declaration of Trust also provides
for indemnification from the Portfolio property for all losses and expenses
of any shareholder held personally liable for a Portfolio's obligations. Thus
the risk of an investor incurring financial loss on account of such liability
is limited to circumstances in which the Portfolio itself would be unable to
meet its obligations and where the other party was held not to be found by
the disclaimer. The Agreement and Declaration of Trust also provides that
each Portfolio may maintain appropriate insurance (for example, fidelity
bonding and errors and omissions insurance) covering certain kinds of
potential liabilities. Thus, the risk of an investor incurring financial loss
on account of investor liability is limited to circumstances in which both
inadequate insurance existed and the investor's Portfolio itself was unable
to meet its obligations.
As of the date of this Registration Statement, Growth Series owns a
majority interest in Growth Portfolio and each Portfolio. However, Growth
Series has undertaken that, with respect to most matters on which Growth
Portfolio seeks a vote of its interestholders, Growth Series will seek a vote
of its shareholders and will vote its interest in Growth Portfolio in
accordance with their instructions.
Investments in a Portfolio have no pre-emptive or conversion rights.
Growth Portfolio is not required to hold annual meetings of investors, but it
will hold special meetings of investors when in the judgment of the Trustees
it is necessary or desirable to submit matters for an investor vote.
Investors have the right to communicate with other investors to the extent
provided in Section 16(c) of the 1940 Act in connection with requesting a
meeting of investors for the purpose of removing one or more Trustees, which
removal requires a two-thirds vote of Growth Portfolio's beneficial
interests. Investors also have under certain circumstances the right to
remove one or more Trustees without a meeting. Upon liquidation of a
Portfolio, investors would be entitled to share pro rata in that Portfolio's
net assets available for distribution to investors.
Each Portfolio annually declares as a dividend all of its net investment
income, if any, which includes dividends, accrued interest and earned
discount (including both original issue and market discounts) less applicable
expenses. Each Portfolio also annually distributes substantially all of its
realized net short-term capital gain (the excess of short-term capital gains
over short-term capital losses), net capital gain (the excess of net
long-term capital gain over net short-term capital loss) and net gains from
foreign currency transactions, if any. Each Portfolio may make an additional
dividend or other distribution if necessary to avoid a 4% excise tax on
certain undistributed income and gain.
Under the current method of the Portfolios' operation, they are not
subject to any income tax. However, each investor in a Portfolio is taxable
on its share (as determined in accordance with the governing instruments of
Growth Portfolio and the Internal Revenue Code of 1986, as amended ("Code")
and the regulations promulgated thereunder) of that Portfolio's income,
A-3
<PAGE>
gains, losses, deductions, and credits in determining its income tax
liability. The determination of such share will be made in accordance with
the Code and the regulations promulgated thereunder. It is intended that each
Portfolio's assets, income and distributions will be managed in such a way
that an investor in a Portfolio will be able to satisfy the requirements of
Subchapter M of the Code, assuming that the investor invested all of its
assets in the Portfolio. See Part B for a discussion of the foregoing tax
matters and certain other matters.
Investor inquiries may be directed to the Sub-adviser at the following
address: 50 California Street, 27th Floor, San Francisco, CA 94111.
Item 7. PURCHASE OF SECURITIES.
--------------------------------
Beneficial interests in each 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.
An investment in a Portfolio may be made without a sales load at the NAV
next determined after an order is received in "good order" by a Portfolio.
There is no minimum initial or subsequent investment in a Portfolio. However,
investments must be made in federal funds (i.e., monies credited to the
account of a Portfolio's custodian bank by a Federal Reserve Bank). Each
investor in a Portfolio may add to or reduce its investment in the Portfolio
on each day the New York Stock Exchange ("NYSE") is open for trading.
Information on the time and method of valuation of the Portfolios' assets
is incorporated by reference from the section entitled "Calculation of Net
Asset Value" in the Feeder's Part A.
Each Portfolio reserves the right to cease accepting investments at any
time or to reject any investment order.
Item 8. REDEMPTION OR REPURCHASE.
----------------------------------
An investor in a Portfolio may redeem any portion or all of its investment
at any time at the NAV next determined after a request in "good order" is
furnished by the investor to that Portfolio. The proceeds of a redemption
will be paid by a Portfolio in federal funds normally on the next business
day after the redemption is effected, but in any event within seven days.
Investments in a Portfolio may not be transferred.
The right of any investor to receive payment with respect to any
redemption may be suspended or the payment of the proceeds therefrom
postponed during any period (1) when the NYSE is closed (other than customary
weekend or holiday closings) or trading on the NYSE is restricted as
A-4
<PAGE>
determined by the SEC, (2) when an emergency exists, as defined by the SEC,
which would prohibit a Portfolio in disposing of its portfolio securities or
in fairly determining the value of its assets, or (3) as the SEC may
otherwise permit.
Item 9. PENDING LEGAL PROCEEDINGS.
-----------------------------------
Not applicable.
A-5
<PAGE>
PART B
Part B of this Registration Statement should be read only in conjunction
with Part A. Capitalized terms used in Part B and not otherwise defined have
the meanings given them in Part A of this Registration Statement.
Responses to certain Items required to be included in Part B of this
Registration Statement are incorporated herein by reference from the Feeder
Registration Statement. Part B of the Feeder Registration Statement includes
the joint statement of additional information of Small Cap Fund and Value
Fund (collectively, "Feeder's Part B").
Item 10. COVER PAGE.
---------------------
Not applicable.
Item 11. TABLE OF CONTENTS.
----------------------------
Page
General Information and History.......................B-1
Investment Objectives and Policies....................B-1
Management of the Growth Portfolio....................B-1
Control Persons and Principal Holders of Interests....B-2
Investment Advisory and Other Services................B-2
Brokerage Allocation and Other Practices..............B-3
Capital Stock and Other Securities....................B-3
Purchase, Redemption and Pricing of Interests.........B-4
Tax Status............................................B-4
Underwriters..........................................B-4
Calculation of Performance Data.......................B-4
Financial Statements..................................B-4
Item 12. GENERAL INFORMATION AND HISTORY.
------------------------------------------
Not applicable.
B-1
<PAGE>
Item 13. INVESTMENT OBJECTIVES AND POLICIES.
---------------------------------------------
Part A contains basic information about the investment objectives,
policies and limitations of the Portfolios. This Part B supplements the
discussion in Part A of the investment objectives, policies and limitations
of the Portfolios.
Information on the fundamental investment limitations and the
non-fundamental investment policies and limitations of the Portfolios, the
types of securities bought and investment techniques used by the Portfolios,
and certain risks attendant thereto, as well as other information on the
Portfolios' investment programs, is incorporated by reference from the
sections entitled "Investment Objectives and Policies," "Options and
Futures," "Risk Factors," "Investment Limitations" and "Execution of
Portfolio Transactions" in the Feeder's Part B.
Item 14. MANAGEMENT OF THE GROWTH PORTFOLIO.
---------------------------------------------
Information about the Trustees and Officers of Growth Portfolio, and their
roles in management of the Portfolios and other AIM/GT Funds, is incorporated
herein by reference from the section entitled "Trustees and Executive
Officers" in the Feeder's Part B.
The Board of Trustees has a Nominating and Audit Committee, comprised of
Ms. Quigley and Messrs. Anderson, Bayley and Patterson, which is responsible
for nominating persons to serve as Trustees, reviewing audits of Growth
Portfolio and its Portfolios recommending firms to serve as independent
auditors for Growth Portfolio. Each of the Trustees and officers of the
Growth Portfolio is also a Director and officer of AIM Investment Portfolios,
Inc., GT Global Floating Rate Fund, Inc. (dba AIM Floating Rate Fund) and AIM
Investment Funds, Inc., and a Trustee and officer of AIM Global Growth
Series, AIM Global Eastern Europe Fund, GT Global Variable Investment Trust,
GT Global Variable Investment Series, AIM Series Trust, Global Investment
Portfolio, Global High Income Portfolio and Floating Rate Portfolio, which
also are registered investment companies managed and administered by AIM and
sub-advised and sub-administered by the Sub-adviser. Each Trustee and Officer
serves in total as a Director, Trustee and/or Officer, respectively, of 12
registered investment companies with 47 series managed or administered by AIM
and sub-advised and sub-administered by the Sub-adviser.
Each Trustee who is not a director, officer or employee of the
Sub-adviser or any affiliated company and other Trustees and officers
receive no compensation or expense reimbursement from the Portfolio. For
the fiscal year ended December 31, 1997, the Small Cap Portfolio and Value
Portfolio paid Mr. Anderson, Mr. Bayley, Mr. Patterson and Ms. Quigley
Trustees' fees and expense reimbursements of $0, $0, $0 and $0 each. For
the fiscal year ended December 31, 1997, Mr. Anderson, Mr. Bayley, Mr.
Patterson and Ms. Quigley, who are not directors, officers or employees of
the Sub-adviser or any affiliated company, each received total
B-2
<PAGE>
compensation of $103,654, $106,556, $89,700 and $98,038, respectively,
from the investment companies managed or administered by AIM and
sub-advised and sub-administered by the Sub-adviser for which he or she
served as a Director or Trustee. Fees and expenses disbursed to the
Trustees contained no accrued or payable pension, or retirement benefits.
As of the date of this filing, the officers and Trustees and their
families as a group owned in the aggregate beneficially or of record less
than 1% of the outstanding interests of each Portfolio.
Item 15. CONTROL PERSONS AND PRINCIPAL HOLDERS OF BENEFICIAL INTERESTS.
------------------------------------------------------------------------
As of the date of this filing, Small Cap Fund and Value Fund (each a
"Fund," and collectively, the "Funds") owned 99.9% and 99.9% of the value of
the outstanding beneficial interests in Small Cap Portfolio and Value
Portfolio, respectively (a "corresponding Portfolio"). Because each Fund
currently controls its corresponding Portfolio, each Fund may take actions
affecting its corresponding Portfolio without the approval of any other
investor.
Each Fund has informed its corresponding Portfolio that whenever a Fund is
requested to vote on any proposal of its corresponding Portfolio, it will
hold a meeting of shareholders and will cast its vote as instructed by its
shareholders. It is anticipated that other investors in each Portfolio will
follow the same or a similar practice.
Item 16. INVESTMENT ADVISORY AND OTHER SERVICES.
------------------------------------------------
Information on the investment management and other services provided for
or on behalf of the Portfolios is incorporated herein by reference from the
sections entitled "Management," "Trustees and Executive Officers" and
"Additional Information" in the Feeder's Part B. The following list
identifies the specific sections in the Feeder's Part B under which the
information required by Items 16 of Form N-1A may be found; each section is
incorporated herein by reference.
Item 16 (a) Management; Additional
Information
Item 16 (b) Management
Item 16 (c) Not applicable
Item 16 (d) Management
Item 16 (e) Not applicable
Item 16 (f) Not applicable
Item 16 (g) Not applicable
Item 16 (h) Additional Information
Item 16 (i) Not applicable
B-3
<PAGE>
For the fiscal period October 18, 1995 (commencement of operations) to
December 31, 1995, the Small Cap Portfolio and the Value Portfolio paid
investment management and administration fees of $1,293 and $622,
respectively, to the Sub-adviser. For the same period, the Small Cap Fund and
Value Fund paid administration fees of $755 and $349, respectively, to the
Sub-adviser. For the fiscal period October 18, 1995 (commencement of
operations) to December 31, 1995, the Sub-adviser reimbursed the Small Cap
Portfolio and Value Portfolio for their respective investment management and
administration fees in the amounts of $1,293 and $622, respectively; for the
same period, the Small Cap Fund and Value Fund reimbursed administration fees
in the amounts of $755 and $349, respectively. Accordingly, the Sub-adviser
reimbursed each Fund and its respective Portfolio investment management and
administration fees in the aggregate amounts of $2,048 and $971,
respectively.
For the fiscal years ended December 31, 1997 and December 31, 1996, the
Small Cap Portfolio and the Value Portfolio paid investment management and
administration fees of $120,544 and $73,312; and $74,372 and $27,487,
respectively, to the Sub-adviser. For the same periods, the Small Cap Fund
and Value Fund paid administration fees of $63,460 and $39,004; and $39,171
and $14,722, respectively, to the Sub-adviser. For the fiscal years ended
December 31, 1997 and December 31, 1996, the Sub-adviser reimbursed the Small
Cap Portfolio and Value Portfolio for their respective investment management
and administration fees in the amounts of $67,837 and $73,312; and $74,372
and $27,487, respectively; for the same periods, the Sub-adviser reimbursed
the Small Cap Fund and Value Fund for their respective administration fees in
the amounts of $63,460 and $39,004; and $39,171 and $14,722, respectively.
Accordingly, the Sub-adviser reimbursed each Fund and its corresponding
Portfolio investment management and administration fees in the aggregate
amounts of $131,297 and $112,316; and $113,543 and $42,209, respectively.
For the fiscal period October 18, 1995 (commencement of operations) to
December 31, 1995, the Sub-adviser, pursuant to a voluntary expense
undertaking to limit expenses to the maximum annual level of 1.65% of average
daily net assets of Advisor Class shares of the Funds, reimbursed the Small
Cap Fund and Value Fund for expenses in the additional amounts of $65,079 and
$66,907, respectively.
For the fiscal years ended December 31, 1997 and December 31, 1996, the
Sub-adviser, pursuant to its voluntary expense undertaking, reimbursed the
Small Cap Fund and Value Fund for expenses in the additional amounts of $0
and $58,269; and $38,419 and $164,683, respectively.
Item 17. BROKERAGE ALLOCATION AND OTHER PRACTICES.
---------------------------------------------------
A description of the Portfolios' brokerage allocation and other practices
is incorporated herein by reference from the section entitled "Execution of
Portfolio Transactions" in the Feeder's Part B.
B-4
<PAGE>
Item 18. CAPITAL STOCK AND OTHER SECURITIES.
---------------------------------------------
Under the Portfolio's Agreement and Declaration of Trust, the Trustees are
authorized to issue beneficial interests in each Portfolio. An investor in a
Portfolio is entitled to participate pro rata in distributions of the
Portfolio's income and gains and to be allocated a pro rata share of the
Portfolio's income, gains, losses, deductions, and credits. Upon liquidation
or dissolution of a Portfolio, investors are entitled to share pro rata in
that Portfolio's net assets available for distribution to its investors.
Investments in a Portfolio have no preference, preemptive, conversion or
similar rights. Investments in each Portfolio may not be transferred.
Each investor in a Portfolio is entitled to a vote in proportion to the
amount of its investment in that Portfolio. Investors in the Portfolios will
all vote together in certain circumstances (e.g., election of the Trustees
and auditors, and as required by the 1940 Act and the rules thereunder).
Investors in a Portfolio do not have cumulative voting rights, and investors
holding more than 50% of the aggregate beneficial interest in Growth
Portfolio or in a Portfolio, as the case may be, may control the outcome of
these votes. Growth Portfolio is not required to hold annual meetings of
investors but Growth Portfolio will hold special meetings of investors when
in the judgment of Growth Portfolio's Trustees it is necessary or desirable
to submit matters for an investor vote. No amendment required to be approved
by investors may be made to Growth Portfolio's Agreement and Declaration of
Trust without the affirmative majority vote of investors (with the vote of
each being in proportion to the amount of its investment).
Growth Portfolio or any Portfolio may be terminated by (1) "the vote of a
majority of the outstanding voting securities" (as defined in the 1940 Act)
of Growth Portfolio or the affected Portfolio, respectively, or (2) if there
are fewer than 100 record owners of a beneficial interest in Growth Portfolio
or of such terminating Portfolio, the Trustees pursuant to written notice to
the record owners of Growth Portfolio or the affected Portfolio. The Trustees
may cause (i) Growth Portfolio or one or more of its Portfolios to the extent
consistent with applicable law to sell all or substantially all of its
assets, or be merged into or consolidated with another business trust or
company, (ii) the beneficial interests of a record owner in Growth Portfolio
or any Portfolio to be converted into beneficial interests in another
business trust (or series thereof) created pursuant to Section 10.4 of
Article X of Growth Portfolio's Agreement and Declaration of Trust, or (iii)
the beneficial interests of a record owner of Growth Portfolio to be
exchanged under or pursuant to any state or federal statute to the extent
permitted by law. In all respects not governed by statute or applicable law,
the Trustees shall have power to prescribe the procedure necessary or
appropriate to accomplish a sale of assets, merger or consolidation including
the power to create one or more separate business trusts to which all or any
part of the assets, liabilities, profits or losses of the Trust may be
transferred and to provide for the conversion of interests in the Trust or
any Portfolio into beneficial interests in such separate business trust or
trusts (or series or class thereof).
B-5
<PAGE>
The Agreement and Declaration of Trust further provides that obligations
of each Portfolio are not binding upon the Trustees individually but only
upon the property of that Portfolio and that the Trustees will not be liable
for any action or failure to act, but nothing in the Agreement and
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
or her office. The Agreement and Declaration of Trust provides that the
Trustees and officers will be indemnified by Growth Portfolio against
liabilities and expenses incurred in connection with litigation in which they
may be involved because of their offices with Growth Portfolio, unless, as to
liability to Growth Portfolio or its investors, it is finally adjudicated
that they engaged in willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in their offices, or unless with
respect to any other matter it is finally adjudicated that they did not act
in good faith in the reasonable belief that their actions were in the best
interests of the Growth Portfolio. In the case of settlement, such
indemnification will not be provided unless it has been determined by a court
or other body approving the settlement or other disposition, or by a
reasonable determination, based upon a review of readily available facts, by
vote of a majority of disinterested Trustees or in a written opinion of
independent counsel, that such officers or Trustees have not engaged in
willful misfeasance, bad faith, gross negligence or reckless disregard of
their duties.
Item 19. PURCHASE, REDEMPTION AND PRICING OF SECURITIES.
---------------------------------------------------------
Beneficial interests in each Portfolio are issued solely in private
placement transactions which do not involve any "public offering" within the
meaning of Section 4(2) of the 1933 Act, as amended. See Items 4 and 7 in
Part A.
Information on the method followed by the Portfolios in determining their
net asset value and the timing of such determination is incorporated by
reference from the section entitled "Valuation of Fund Shares" in the
Feeder's Part B. See also Items 7 & 8 in Part A.
Each Portfolio reserves the right, if conditions exist which make cash
payments undesirable, to honor any request for redemption or repurchase order
by making payment in whole or in part in readily marketable securities chosen
by that Portfolio and valued as they are for purposes of computing the
Portfolio's NAV (a redemption in kind). If payment is made in securities, an
investor may incur transaction expenses in selling any such securities so
received and would be subject to any increase or decrease in the value of the
securities until they were sold.
Each investor in a Portfolio may add to or reduce its investment in that
Portfolio on each day that the NYSE is open for trading. At the close of
trading, on each such day, the value of each investor's interest in a
Portfolio will be determined by multiplying the NAV of such Portfolio by the
percentage representing that investor's share of the aggregate beneficial
interests in that Portfolio. Any additions or reductions which are to be
effected on that day will then be effected. The investor's percentage of the
B-6
<PAGE>
aggregate beneficial interests in a Portfolio will then be recomputed as the
percentage equal to the fraction (i) the numerator of which is the value of
such investor's investment in the Portfolio as of the close of trading on
such day plus or minus, as the case may be, the amount of net additions to or
reductions in the investor's investment in that Portfolio effected on such
day, and (ii) the denominator of which is the aggregate NAV of the Portfolio
as of the close of trading on such day plus or minus, as the case may be, the
amount of the net additions to or reductions in the aggregate investments in
that Portfolio by all investors in that Portfolio. The percentage so
determined will then be applied to determine the value of the investor's
interest in that Portfolio as of the close of trading on the following day
the NYSE is open for trading.
Item 20. TAX STATUS.
---------------------
Information on the taxation of the Portfolios is incorporated by reference
from the section entitled "Taxes" in the Feeder's Part B.
Item 21. UNDERWRITERS.
-----------------------
Not applicable.
Item 22. CALCULATION OF PERFORMANCE DATA.
------------------------------------------
Not applicable.
Item 23. FINANCIAL STATEMENTS.
-------------------------------
The financial statements of each Portfolio for the fiscal year ended
December 31, 1997, are included herein, in reliance on the report of Coopers
& Lybrand L.L.P., independent auditors, given on the authority of said firm
as experts in auditing and accounting.
B-7
<PAGE>
SMALL CAP PORTFOLIO
VALUE PORTFOLIO
REPORT OF INDEPENDENT ACCOUNTANTS
- --------------------------------------------------------------------------------
ANNUAL REPORT
To the Shareholders and Board of Trustees of Growth Portfolio:
We have audited the accompanying statements of assets and liabilities of Small
Cap Growth Portfolio and Value Portfolio, including the portfolios of
investments, as of December 31, 1997, the related statements of operations for
the year then ended, the statements of changes in net assets for each of the two
years then ended and the supplementary data for each of the periods indicated
herein. These financial statements and the supplementary data are the
responsibility of the Portfolios' management. Our responsibility is to express
an opinion on these financial statements and the supplementary data based on our
audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audits to obtain
reasonable assurance about whether the financial statements and supplementary
data are free of material misstatement. An audit includes examining, on a test
basis, evidence supporting the amounts and disclosures in the financial
statements. Our procedures included confirmation of securities owned as of
December 31, 1997 by correspondence with the custodian and brokers. An audit
also includes assessing the accounting principles used and significant estimates
made by management, as well as evaluating the overall financial statement
presentation. We believe that our audits provide a reasonable basis for our
opinion.
In our opinion, the financial statements and the supplementary data referred to
above present fairly, in all material respects, the financial position of Small
Cap Growth Portfolio and Value Portfolio as of December 31, 1997, the results of
their operations for the year then ended, the changes in their net assets for
each of the two years then ended and the supplementary data for each of the
periods indicated herein, in conformity with generally accepted accounting
principles.
COOPERS & LYBRAND L.L.P.
BOSTON, MASSACHUSETTS
FEBRUARY 17, 1998
F1
<PAGE>
SMALL CAP PORTFOLIO
PORTFOLIO OF INVESTMENTS
December 31, 1997
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
VALUE % OF NET
EQUITY INVESTMENTS COUNTRY SHARES (NOTE 1) ASSETS
- ------------------------------------------------------------- -------- ----------- ------------ -------------
<S> <C> <C> <C> <C>
Services (33.0%)
Signature Resorts, Inc.-/- ................................ US 45,550 $ 996,400 3.0
LEISURE & TOURISM
Personnel Group of America, Inc.-/- ....................... US 25,700 848,100 2.5
BUSINESS & PUBLIC SERVICES
Insight Enterprises, Inc.-/- .............................. US 20,700 760,725 2.3
RETAILERS-OTHER
Vistana, Inc.-/- .......................................... US 26,900 618,700 1.8
LEISURE & TOURISM
American Disposal Services, Inc.-/- ....................... US 16,700 609,550 1.8
CONSUMER SERVICES
CDW Computer Centers, Inc.-/- ............................. US 11,000 573,375 1.7
RETAILERS-OTHER
Superior Services, Inc.-/- ................................ US 18,000 519,750 1.5
CONSUMER SERVICES
Lason Holdings, Inc.-/- ................................... US 19,000 505,875 1.5
CONSUMER SERVICES
BA Merchant Services, Inc. "A"-/- ......................... US 28,400 504,100 1.5
BUSINESS & PUBLIC SERVICES
Comfort Systems USA, Inc.-/- .............................. US 22,800 450,300 1.3
BUSINESS & PUBLIC SERVICES
HA-LO Industries, Inc.-/- ................................. US 17,200 447,200 1.3
CONSUMER SERVICES
Clear Channel Communications, Inc.-/- ..................... US 5,600 444,850 1.3
TELECOM - OTHER
Caribiner International, Inc.-/- .......................... US 9,300 413,850 1.2
CONSUMER SERVICES
Henry Schein, Inc.-/- ..................................... US 11,400 399,000 1.2
RETAILERS-OTHER
Lamar Advertising Co.-/- .................................. US 9,700 385,575 1.1
BUSINESS & PUBLIC SERVICES
C.H. Robinson Worldwide, Inc. ............................. US 16,600 371,425 1.1
TRANSPORTATION - SHIPPING
Jevic Transportation, Inc.-/- ............................. US 21,100 340,238 1.0
TRANSPORTATION - SHIPPING
Universal Outdoor Holdings, Inc.-/- ....................... US 5,900 306,800 0.9
BUSINESS & PUBLIC SERVICES
Bright Horizons, Inc.-/- .................................. US 16,000 300,000 0.9
CONSUMER SERVICES
Hagler Bailly, Inc.-/- .................................... US 10,900 245,250 0.7
BUSINESS & PUBLIC SERVICES
Service Experts, Inc.-/- .................................. US 8,400 240,450 0.7
CONSUMER SERVICES
Industrial Distribution Group, Inc.-/- .................... US 13,900 218,056 0.6
WHOLESALE & INTERNATIONAL TRADE
Execustay Corp.-/- ........................................ US 19,300 188,175 0.6
LEISURE & TOURISM
BridgeStreet Accomodations, Inc.-/- ....................... US 17,700 179,766 0.5
CONSUMER SERVICES
EduTrek International, Inc. "A"-/- ........................ US 4,900 127,400 0.4
BUSINESS & PUBLIC SERVICES
</TABLE>
The accompanying notes are an integral part of the financial statements.
F2
<PAGE>
SMALL CAP PORTFOLIO
PORTFOLIO OF INVESTMENTS (cont'd)
December 31, 1997
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
VALUE % OF NET
EQUITY INVESTMENTS COUNTRY SHARES (NOTE 1) ASSETS
- ------------------------------------------------------------- -------- ----------- ------------ -------------
<S> <C> <C> <C> <C>
Services (Continued)
Linens 'N Things, Inc.-/- ................................. US 1,800 $ 78,525 0.2
RETAILERS-APPAREL
NEXTLINK Communications, Inc. "A"-/- ...................... US 3,600 76,725 0.2
TELEPHONE - REGIONAL/LOCAL
Coldwater Creek, Inc.-/- .................................. US 1,800 60,750 0.2
RETAILERS-OTHER
------------
11,210,910
------------
Health Care (14.0%)
Jones Medical Industries, Inc. ............................ US 16,700 638,775 1.9
MEDICAL TECHNOLOGY & SUPPLIES
SangStat Medical Corp.-/- ................................. US 9,400 380,700 1.1
MEDICAL TECHNOLOGY & SUPPLIES
Atria Communities, Inc.-/- ................................ US 21,300 364,763 1.1
HEALTH CARE SERVICES
ESC Medical Systems Ltd.-/- {\/} .......................... ISRL 9,400 364,250 1.1
MEDICAL TECHNOLOGY & SUPPLIES
SEQUUS Pharmaceuticals, Inc.-/- ........................... US 47,900 356,256 1.0
PHARMACEUTICALS
AmeriSource Health Corp. "A"-/- ........................... US 5,600 329,000 1.0
HEALTH CARE SERVICES
Waters Corp.-/- ........................................... US 8,500 319,813 0.9
MEDICAL TECHNOLOGY & SUPPLIES
Arris Pharmaceutical Corp.-/- ............................. US 36,800 308,200 0.9
PHARMACEUTICALS
Pharmacopeia, Inc.-/- ..................................... US 18,100 289,600 0.9
BIOTECHNOLOGY
Lunar Corp.-/- ............................................ US 13,800 282,900 0.8
MEDICAL TECHNOLOGY & SUPPLIES
VIVUS, Inc.-/- ............................................ US 24,600 261,375 0.8
MEDICAL TECHNOLOGY & SUPPLIES
COR Therapeutics, Inc.-/- ................................. US 9,700 218,250 0.6
BIOTECHNOLOGY
Focal, Inc.-/- ............................................ US 18,000 191,250 0.6
MEDICAL TECHNOLOGY & SUPPLIES
Nitinol Medical Technologies, Inc.-/- ..................... US 15,000 120,000 0.4
MEDICAL TECHNOLOGY & SUPPLIES
Gilead Sciences, Inc.-/- .................................. US 2,700 103,275 0.3
BIOTECHNOLOGY
AmeriPath, Inc.-/- ........................................ US 5,800 98,600 0.3
HEALTH CARE SERVICES
Depotech Corp.-/- ......................................... US 23,500 83,719 0.2
PHARMACEUTICALS
Sofamor Danek Group, Inc.-/- .............................. US 600 39,038 0.1
MEDICAL TECHNOLOGY & SUPPLIES
------------
4,749,764
------------
</TABLE>
The accompanying notes are an integral part of the financial statements.
F3
<PAGE>
SMALL CAP PORTFOLIO
PORTFOLIO OF INVESTMENTS (cont'd)
December 31, 1997
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
VALUE % OF NET
EQUITY INVESTMENTS COUNTRY SHARES (NOTE 1) ASSETS
- ------------------------------------------------------------- -------- ----------- ------------ -------------
<S> <C> <C> <C> <C>
Technology (12.8%)
Software AG Systems, Inc.-/- .............................. US 31,600 $ 458,200 1.3
SOFTWARE
Documentum, Inc.-/- ....................................... US 10,000 421,250 1.2
SOFTWARE
Analysts International Corp. .............................. US 11,050 381,225 1.1
COMPUTERS & PERIPHERALS
Roper Industries, Inc. .................................... US 12,600 355,950 1.0
INSTRUMENTATION & TEST
Pegasystems, Inc.-/- ...................................... US 16,000 323,000 0.9
SOFTWARE
Integrated Circuit Systems, Inc.-/- ....................... US 10,900 310,650 0.9
SEMICONDUCTORS
MRV Communications, Inc.-/- ............................... US 12,900 307,988 0.9
TELECOM TECHNOLOGY
Ciber, Inc.-/- ............................................ US 4,800 278,400 0.8
COMPUTERS & PERIPHERALS
Inacom Corp.-/- ........................................... US 9,300 260,981 0.8
COMPUTERS & PERIPHERALS
Peerless Systems Corp.-/- ................................. US 18,500 238,188 0.7
SOFTWARE
Metro Information Services, Inc.-/- ....................... US 7,700 213,675 0.6
COMPUTERS & PERIPHERALS
Aspect Development, Inc.-/- ............................... US 3,400 176,800 0.5
SOFTWARE
Logility, Inc.-/- ......................................... US 18,100 176,475 0.5
SOFTWARE
Cirrus Logic, Inc.-/- ..................................... US 15,800 167,875 0.5
SEMICONDUCTORS
Pericom Semiconductor Corp.-/- ............................ US 15,400 112,613 0.3
SEMICONDUCTORS
FactSet Research Systems, Inc.-/- ......................... US 2,300 70,725 0.2
COMPUTERS & PERIPHERALS
Aehr Test Systems-/- ...................................... US 8,400 67,200 0.2
INSTRUMENTATION & TEST
PRI Automation, Inc.-/- ................................... US 2,000 57,750 0.2
COMPUTERS & PERIPHERALS
Excel Switching Corp.-/- .................................. US 2,800 50,050 0.2
TELECOM TECHNOLOGY
------------
4,428,995
------------
Finance (9.3%)
AmeriCredit Corp.-/- ...................................... US 15,100 418,081 1.2
CONSUMER FINANCE
Camden Property Trust ..................................... US 13,400 415,400 1.2
REAL ESTATE INVESTMENT TRUST
LaSalle Partners, Inc.-/- ................................. US 11,500 409,688 1.2
REAL ESTATE
Affiliated Managers Group, Inc.-/- ........................ US 13,000 377,000 1.1
INVESTMENT MANAGEMENT
</TABLE>
The accompanying notes are an integral part of the financial statements.
F4
<PAGE>
SMALL CAP PORTFOLIO
PORTFOLIO OF INVESTMENTS (cont'd)
December 31, 1997
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
VALUE % OF NET
EQUITY INVESTMENTS COUNTRY SHARES (NOTE 1) ASSETS
- ------------------------------------------------------------- -------- ----------- ------------ -------------
<S> <C> <C> <C> <C>
Finance (Continued)
ARM Financial Group, Inc. "A"-/- .......................... US 13,200 $ 348,150 1.0
INVESTMENT MANAGEMENT
HomeSide, Inc.-/- ......................................... US 12,000 330,750 1.0
SAVINGS & LOANS
Stirling Cooke Brown Holdings Ltd.-/- ..................... US 8,900 218,050 0.6
INSURANCE - PROPERTY-CASUALTY
Resource America, Inc. "A" ................................ US 3,900 178,425 0.5
CONSUMER FINANCE
American Capital Strategies Ltd. .......................... US 9,800 177,625 0.5
CONSUMER FINANCE
PAULA Financial-/- ........................................ US 5,800 133,400 0.4
REAL ESTATE
Tower Realty Trust, Inc. .................................. US 5,100 125,588 0.4
REAL ESTATE INVESTMENT TRUST
Citizens National Bank of Texas ........................... US 6,600 82,500 0.2
BANKS-REGIONAL
------------
3,214,657
------------
Capital Goods (7.2%)
General Cable Corp.-/- .................................... US 17,500 633,281 1.9
INDUSTRIAL COMPONENTS
Knoll, Inc.-/- ............................................ US 18,400 591,100 1.7
OFFICE EQUIPMENT
Chart Industries, Inc. .................................... US 17,100 390,094 1.1
MACHINERY & ENGINEERING
OSI Systems, Inc.-/- ...................................... US 22,300 273,175 0.8
ELECTRICAL PLANT/EQUIPMENT
Wyman-Gordon Co.-/- ....................................... US 13,700 268,863 0.8
ELECTRICAL PLANT/EQUIPMENT
The Middleby Corp.-/- ..................................... US 20,700 161,719 0.5
MACHINERY & ENGINEERING
Power-One, Inc.-/- ........................................ US 9,000 123,750 0.4
INDUSTRIAL COMPONENTS
------------
2,441,982
------------
Energy (5.3%)
Newfield Exploration Co.-/- ............................... US 27,900 650,419 1.9
OIL
Hanover Compressor Co.-/- ................................. US 27,800 556,000 1.6
ENERGY EQUIPMENT & SERVICES
Pride International, Inc.-/- .............................. US 10,400 262,600 0.8
OIL
ADAC Laboratories-/- ...................................... US 13,100 258,725 0.8
ENERGY EQUIPMENT & SERVICES
Dril-Quip, Inc.-/- ........................................ US 2,000 70,250 0.2
ENERGY EQUIPMENT & SERVICES
------------
1,797,994
------------
</TABLE>
The accompanying notes are an integral part of the financial statements.
F5
<PAGE>
SMALL CAP PORTFOLIO
PORTFOLIO OF INVESTMENTS (cont'd)
December 31, 1997
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
VALUE % OF NET
EQUITY INVESTMENTS COUNTRY SHARES (NOTE 1) ASSETS
- ------------------------------------------------------------- -------- ----------- ------------ -------------
<S> <C> <C> <C> <C>
Consumer Non-Durables (4.2%)
JLK Direct Distribution, Inc. "A"-/- ...................... US 20,200 $ 565,600 1.7
OTHER CONSUMER GOODS
DM Management Co.-/- ...................................... US 20,900 326,563 1.0
OTHER CONSUMER GOODS
GameTech International, Inc.-/- ........................... US 30,100 323,575 1.0
RECREATION
Meadowcraft, Inc.-/- ...................................... US 13,600 159,800 0.5
HOUSEHOLD PRODUCTS
------------
1,375,538
------------
Materials/Basic Industry (3.9%)
Cambrex Corp. ............................................. US 10,100 464,600 1.4
CHEMICALS
Gibraltar Steel Corp.-/- .................................. US 22,600 446,350 1.3
METALS - STEEL
Crompton & Knowles Corp. .................................. US 12,700 336,550 1.0
CHEMICALS
Steel Dynamics, Inc.-/- ................................... US 4,200 67,200 0.2
METALS - STEEL
------------
1,314,700
------------
Consumer Durables (3.8%)
Avis Rent A Car, Inc.-/- .................................. US 17,000 542,938 1.6
TRANSPORTATION - ROAD & RAIL
Tower Automotive, Inc.-/- ................................. US 10,800 454,275 1.3
AUTO PARTS
Aftermarket Technology Corp.-/- ........................... US 17,400 315,375 0.9
AUTO PARTS
------------
1,312,588
------------
Multi-Industry/Miscellaneous (2.5%)
Cornell Corrections, Inc.-/- .............................. US 23,500 487,625 1.4
MISCELLANEOUS
Equity Corporation International-/- ....................... US 15,600 360,750 1.1
MISCELLANEOUS
------------
848,375
------------ -----
TOTAL EQUITY INVESTMENTS (cost $31,799,304) ................. 32,695,503 95.8
------------ -----
</TABLE>
The accompanying notes are an integral part of the financial statements.
F6
<PAGE>
SMALL CAP PORTFOLIO
PORTFOLIO OF INVESTMENTS (cont'd)
December 31, 1997
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
VALUE % OF NET
REPURCHASE AGREEMENT (NOTE 1) ASSETS
- ------------------------------------------------------------- ------------ -------------
<S> <C> <C> <C> <C>
Dated December 31, 1997, with State Street Bank & Trust
Co., due January 2, 1998, for an effective yield of 5.80%
collateralized by $905,000 U.S. Treasury Notes, 5.75% due
12/31/98 (market value of collateral is $905,993,
including accrued interest). (cost $884,000) ............ $ 884,000 2.6
------------ -----
TOTAL INVESTMENTS (cost $32,683,304) * ..................... 33,579,503 98.4
Other Assets and Liabilities ................................ 554,948 1.6
------------ -----
NET ASSETS .................................................. $ 34,134,451 100.0
------------ -----
------------ -----
</TABLE>
- --------------
-/- Non-income producing security.
{\/} U.S. currency denominated.
* For Federal income tax purposes, cost is $32,768,260 and
appreciation (depreciation) is as follows:
<TABLE>
<S> <C>
Unrealized appreciation: $ 2,952,339
Unrealized depreciation: (2,141,096)
-------------
Net unrealized appreciation: $ 811,243
-------------
-------------
</TABLE>
The accompanying notes are an integral part of the financial statements.
F7
<PAGE>
VALUE PORTFOLIO
PORTFOLIO OF INVESTMENTS
December 31, 1997
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
VALUE % OF NET
EQUITY INVESTMENTS COUNTRY SHARES (NOTE 1) ASSETS
- ------------------------------------------------------------- -------- ----------- ------------ -------------
<S> <C> <C> <C> <C>
Finance (36.6%)
Student Loan Marketing Association ........................ US 5,175 $ 719,972 2.9
OTHER FINANCIAL
Travelers Group, Inc. ..................................... US 11,850 638,419 2.6
INSURANCE - MULTI-LINE
Allstate Corp. ............................................ US 6,875 624,766 2.5
INSURANCE - MULTI-LINE
Chase Manhattan Corp. ..................................... US 5,675 621,413 2.5
BANKS-MONEY CENTER
Household International, Inc. ............................. US 4,600 586,779 2.4
OTHER FINANCIAL
NationsBank Corp. ......................................... US 9,600 583,800 2.3
BANKS-SUPER REGIONAL
First Union Corp. (N.C.) .................................. US 11,300 579,125 2.3
BANKS-SUPER REGIONAL
Exel Ltd. ................................................. US 8,900 564,038 2.3
INSURANCE - PROPERTY-CASUALTY
BankAmerica Corp. ......................................... US 7,250 529,250 2.1
BANKS-SUPER REGIONAL
Citicorp .................................................. US 4,100 518,394 2.1
BANKS-MONEY CENTER
Fleet Financial Group, Inc. ............................... US 5,800 434,638 1.8
BANKS-SUPER REGIONAL
GreenPoint Financial Corp. ................................ US 5,900 428,119 1.7
BANKS-REGIONAL
Norwest Corp. ............................................. US 10,950 422,944 1.7
BANKS-REGIONAL
Equity Office Properties Trust ............................ US 9,700 306,156 1.2
REAL ESTATE INVESTMENT TRUST
Crescent Real Estate Equities Co. ......................... US 7,200 283,500 1.1
REAL ESTATE INVESTMENT TRUST
Tower Realty Trust, Inc. .................................. US 11,100 273,338 1.1
REAL ESTATE INVESTMENT TRUST
Patriot American Hospitality, Inc. ........................ US 9,198 265,017 1.1
REAL ESTATE INVESTMENT TRUST
Equity Residential Property Trust ......................... US 4,875 246,492 1.0
REAL ESTATE INVESTMENT TRUST
Highwoods Properties, Inc. ................................ US 6,425 238,930 1.0
REAL ESTATE INVESTMENT TRUST
Felcor Suite Hotels, Inc. ................................. US 6,025 213,888 0.9
REAL ESTATE INVESTMENT TRUST
------------
9,078,978
------------
Energy (16.4%)
McDermott International, Inc. ............................. US 13,900 509,088 2.0
ENERGY EQUIPMENT & SERVICES
Mobil Corp. ............................................... US 6,300 454,781 1.8
OIL
Amerada Hess Corp. ........................................ US 8,025 440,372 1.8
OIL
</TABLE>
The accompanying notes are an integral part of the financial statements.
F8
<PAGE>
VALUE PORTFOLIO
PORTFOLIO OF INVESTMENTS (cont'd)
December 31, 1997
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
VALUE % OF NET
EQUITY INVESTMENTS COUNTRY SHARES (NOTE 1) ASSETS
- ------------------------------------------------------------- -------- ----------- ------------ -------------
<S> <C> <C> <C> <C>
Energy (Continued)
Tosco Corp. ............................................... US 10,600 $ 400,813 1.6
GAS PRODUCTION & DISTRIBUTION
Unocal Corp. .............................................. US 9,800 380,363 1.5
OIL
Ultramar Diamond Shamrock Corp. ........................... US 11,925 380,109 1.5
OIL
Pinnacle West Capital Corp. ............................... US 8,025 340,059 1.4
ELECTRICAL & GAS UTILITIES
Texaco, Inc. .............................................. US 5,850 318,094 1.3
OIL
Edison International ...................................... US 10,300 280,031 1.1
ELECTRICAL & GAS UTILITIES
Central & South West Corp. ................................ US 8,700 235,444 1.0
ELECTRICAL & GAS UTILITIES
GPU, Inc. ................................................. US 5,225 220,103 0.9
ELECTRICAL & GAS UTILITIES
CMS Energy Corp. .......................................... US 2,550 112,359 0.5
ELECTRICAL & GAS UTILITIES
------------
4,071,616
------------
Services (14.5%)
Bell Atlantic Corporation ................................. US 7,500 682,500 2.8
TELEPHONE - REGIONAL/LOCAL
Federated Department Stores, Inc.-/- ...................... US 15,800 680,388 2.7
RETAILERS-APPAREL
U.S. West, Inc. ........................................... US 12,500 564,063 2.3
TELEPHONE - REGIONAL/LOCAL
Burlington Northern, Inc. ................................. US 6,000 557,625 2.3
TRANSPORTATION - ROAD & RAIL
The Limited, Inc. ......................................... US 19,825 505,538 2.0
RETAILERS-APPAREL
Time Warner, Inc. ......................................... US 5,525 342,550 1.4
BROADCASTING & PUBLISHING
ITT Corp.-/- .............................................. US 3,100 256,913 1.0
LEISURE & TOURISM
------------
3,589,577
------------
Materials/Basic Industry (11.2%)
Imperial Chemical Industries PLC - ADR{\/} ................ UK 10,900 707,819 2.9
CHEMICALS
Hercules, Inc. ............................................ US 8,075 404,255 1.6
CHEMICALS
Stone Container Corp.-/- .................................. US 38,600 402,888 1.6
PAPER/PACKAGING
Crompton & Knowles Corp. .................................. US 14,400 381,600 1.5
CHEMICALS
W.R. Grace & Co. .......................................... US 4,225 339,848 1.4
CHEMICALS
Aluminum Company of America (ALCOA) ....................... US 4,400 309,650 1.2
METALS - NON-FERROUS
</TABLE>
The accompanying notes are an integral part of the financial statements.
F9
<PAGE>
VALUE PORTFOLIO
PORTFOLIO OF INVESTMENTS (cont'd)
December 31, 1997
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
VALUE % OF NET
EQUITY INVESTMENTS COUNTRY SHARES (NOTE 1) ASSETS
- ------------------------------------------------------------- -------- ----------- ------------ -------------
<S> <C> <C> <C> <C>
Materials/Basic Industry (Continued)
PPG Industries, Inc. ...................................... US 4,200 $ 239,925 1.0
CHEMICALS
------------
2,785,985
------------
Consumer Durables (6.4%)
Ford Motor Co. ............................................ US 14,650 713,272 2.9
AUTOMOBILES
Chrysler Corp. ............................................ US 12,725 447,761 1.8
AUTOMOBILES
Dollar Thrifty Automotive Group, Inc.-/- .................. US 20,000 410,000 1.7
AUTOMOBILES
------------
1,571,033
------------
Consumer Non-Durables (5.2%)
RJR Nabisco Holdings Corp. ................................ US 16,875 632,813 2.5
TOBACCO
Philip Morris Cos., Inc. .................................. US 8,550 387,422 1.6
TOBACCO
Fruit of the Loom, Inc.-/- ................................ US 10,700 274,188 1.1
TEXTILES & APPAREL
------------
1,294,423
------------
Technology (4.9%)
International Business Machines Corp. ..................... US 7,000 731,938 2.9
COMPUTERS & PERIPHERALS
Compaq Computer Corp.-/- .................................. US 8,950 505,116 2.0
COMPUTERS & PERIPHERALS
------------
1,237,054
------------
Capital Goods (1.2%)
Textron, Inc. ............................................. US 4,800 300,000 1.2
AEROSPACE/DEFENSE
------------ -----
TOTAL EQUITY INVESTMENTS (cost $21,927,922) ................. 23,928,666 96.4
------------ -----
</TABLE>
The accompanying notes are an integral part of the financial statements.
F10
<PAGE>
VALUE PORTFOLIO
PORTFOLIO OF INVESTMENTS (cont'd)
December 31, 1997
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
VALUE % OF NET
REPURCHASE AGREEMENT (NOTE 1) ASSETS
- ------------------------------------------------------------- ------------ -------------
<S> <C> <C> <C> <C>
Dated December 31, 1997, with State Street Bank & Trust
Co., due January 2, 1998, for an effective yield of 5.80%,
collateralized by $1,130,000 U.S. Treasury Notes, 5.75%
due 12/31/98 (market value of collateral is $1,131,060,
including accrued interest).
(cost $1,104,000) ....................................... $ 1,104,000 4.4
------------ -----
TOTAL INVESTMENTS (cost $23,031,922) * ..................... 25,032,666 100.8
Other Assets and Liabilities ................................ (129,067) (0.8)
------------ -----
NET ASSETS .................................................. $ 24,903,599 100.0
------------ -----
------------ -----
</TABLE>
- --------------
-/- Non-income producing security.
{\/} U.S. currency denominated.
* For Federal income tax purposes, cost is $23,069,999 and
appreciation (depreciation) is as follows:
<TABLE>
<S> <C>
Unrealized appreciation: $ 2,281,685
Unrealized depreciation: (319,018)
-------------
Net unrealized appreciation: $ 1,962,667
-------------
-------------
</TABLE>
Abbreviation:
ADR--American Depositary Receipt
The accompanying notes are an integral part of the financial statements.
F11
<PAGE>
SMALL CAP PORTFOLIO
STATEMENT OF ASSETS
AND LIABILITIES
December 31, 1997
- --------------------------------------------------------------------------------
<TABLE>
<S> <C> <C>
Assets:
Investments in securities, at value (cost $32,683,304) (Note 1)................................... $33,579,503
U.S. currency..................................................................................... 927
Receivable for securities sold.................................................................... 887,683
Unamortized organizational costs (Note 1)......................................................... 13,972
Dividends receivable.............................................................................. 10,766
Interest receivable............................................................................... 142
----------
Total assets.................................................................................... 34,492,993
----------
Liabilities:
Payable for securities purchased.................................................................. 348,610
Payable for professional fees..................................................................... 5,453
Payable for custodian fees........................................................................ 2,924
Payable for Trustees' fees and expenses (Note 2).................................................. 653
Other accrued expenses............................................................................ 902
----------
Total liabilities............................................................................... 358,542
----------
Net assets.......................................................................................... $34,134,451
----------
----------
Net assets consist of:
Paid in capital................................................................................... $29,310,377
Accumulated net investment income................................................................. 138,935
Accumulated net realized gain on investments and foreign currency transactions.................... 3,788,940
Net unrealized appreciation of investments........................................................ 896,199
----------
Total -- representing net assets applicable to shares of beneficial interest outstanding............ $34,134,451
----------
----------
</TABLE>
The accompanying notes are an integral part of the financial statements.
F12
<PAGE>
SMALL CAP PORTFOLIO
STATEMENT OF OPERATIONS
Year ended December 31, 1997
- --------------------------------------------------------------------------------
<TABLE>
<S> <C> <C>
Investment income: (Note 1)
Interest income............................................................................. $ 95,213
Dividend income............................................................................. 35,957
---------
Total investment income................................................................... 131,170
---------
Expenses:
Investment management and administration fees (Note 2)...................................... 120,544
Custodian fees.............................................................................. 21,876
Legal fees.................................................................................. 11,855
Amortization of organization costs (Note 1)................................................. 5,000
Audit fees.................................................................................. 3,000
Other expenses (Note 1)..................................................................... 122
---------
Total expenses before reductions.......................................................... 162,397
---------
Expense reductions...................................................................... (20,049)
---------
Total net expenses........................................................................ 142,348
---------
Net investment loss........................................................................... (11,178)
---------
Net realized and unrealized gain on investments: (Note 1)
Net realized gain on investments................................................. $2,524,251
Net change in unrealized appreciation of investments............................. 1,674,235
---------
Net realized and unrealized gain on investments............................................... 4,198,486
---------
Net increase in net assets resulting from operations.......................................... $4,187,308
---------
---------
</TABLE>
The accompanying notes are an integral part of the financial statements.
F13
<PAGE>
SMALL CAP PORTFOLIO
STATEMENT OF CHANGES IN NET ASSETS
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
<S> <C> <C>
YEAR ENDED YEAR ENDED
DECEMBER 31, DECEMBER 31,
1997 1996
------------- -------------
Increase in net assets
Operations:
Net investment income (loss)............................................. $ (11,178) $ 145,368
Net realized gain on investments and foreign currency transactions....... 2,524,251 1,264,689
Net change in unrealized appreciation (depreciation) of investments...... 1,674,235 (782,829)
------------- -------------
Net increase in net assets resulting from operations................... 4,187,308 627,228
------------- -------------
Beneficial interest transactions:
Contributions............................................................ 34,998,418 31,029,243
Withdrawals.............................................................. (24,498,523) (15,955,572)
------------- -------------
Net increase from beneficial interest transactions..................... 10,499,895 15,073,671
------------- -------------
Total increase in net assets............................................... 14,687,203 15,700,899
Net assets:
Beginning of year........................................................ 19,447,248 3,746,349
------------- -------------
End of year.............................................................. $34,134,451 $19,447,248
------------- -------------
------------- -------------
</TABLE>
The accompanying notes are an integral part of the financial statements.
F14
<PAGE>
SMALL CAP PORTFOLIO
SUPPLEMENTARY DATA
- --------------------------------------------------------------------------------
Contained below are ratios and supplemental data that have been derived from
information provided in the financial statements.
<TABLE>
<CAPTION>
OCTOBER 18, 1995
(COMMENCEMENT
YEAR ENDED YEAR ENDED OF OPERATIONS)
DECEMBER 31, DECEMBER 31, TO DECEMBER 31,
1997 1996 1995
------------ ------------ ----------------
<S> <C> <C> <C>
Ratios and supplemental data:
Net assets, end of period (in 000's).... $ 34,134 $ 19,447 $ 3,746
Ratio of net investment income to
average net assets..................... (0.04)% 0.94% 1.74% (a)
Ratio of expenses to average net assets:
With expense reductions............... 0.56% 0.70% 2.33% (a)
Without expense reductions............ 0.64% 0.70% 2.33% (a)
Portfolio turnover rate+................ 233% 150% N/A
Average commission rate per share paid
on portfolio transactions+............. $ 0.0517 $ 0.0489 N/A
</TABLE>
- --------------
(a) Annualized
+ Portfolio turnover rate and average commission rate paid on portfolio
transactions are calculated on the basis of the Portfolio as a whole
without distinguishing between the classes of shares issued.
The accompanying notes are an integral part of the financial statements.
F15
<PAGE>
VALUE PORTFOLIO
STATEMENT OF ASSETS
AND LIABILITIES
December 31, 1997
- --------------------------------------------------------------------------------
<TABLE>
<S> <C> <C>
Assets:
Investments in securities, at value (cost $23,031,922) (Note 1)................................... $25,032,666
U.S. currency..................................................................................... 988
Receivable for securities sold.................................................................... 90,237
Dividends receivable.............................................................................. 42,920
Unamortized organizational costs (Note 1)......................................................... 13,971
Interest receivable............................................................................... 178
----------
Total assets.................................................................................... 25,180,960
----------
Liabilities:
Payable for securities purchased.................................................................. 263,514
Payable for professional fees..................................................................... 4,364
Payable for Trustees' fees and expenses (Note 2).................................................. 3,783
Payable for custodian fees........................................................................ 2,892
Other accrued expenses............................................................................ 2,808
----------
Total liabilities............................................................................... 277,361
----------
Net assets.......................................................................................... $24,903,599
----------
----------
Net assets consist of:
Paid in capital................................................................................... $20,468,434
Accumulated net investment income................................................................. 347,658
Accumulated net realized gain on investments and foreign currency transactions.................... 2,086,763
Net unrealized appreciation of investments........................................................ 2,000,744
----------
Total -- representing net assets applicable to shares of beneficial interest outstanding............ $24,903,599
----------
----------
</TABLE>
The accompanying notes are an integral part of the financial statements.
F16
<PAGE>
VALUE PORTFOLIO
STATEMENT OF OPERATIONS
Year ended December 31, 1997
- --------------------------------------------------------------------------------
<TABLE>
<S> <C> <C>
Investment income: (Note 1)
Dividend income............................................................................. $ 357,943
Interest income............................................................................. 46,139
---------
Total investment income................................................................... 404,082
---------
Expenses:
Investment management and administration fees (Note 2)...................................... 74,372
Custodian fees.............................................................................. 9,431
Legal fees.................................................................................. 8,817
Amortization of organization costs (Note 1)................................................. 5,000
Audit fees.................................................................................. 4,949
Trustees' fees and expenses (Note 2)........................................................ 130
Other expenses (Note 1)..................................................................... 4,351
---------
Total expenses before reductions.......................................................... 107,050
---------
Expense reductions...................................................................... (1,332)
---------
Total net expenses........................................................................ 105,718
---------
Net investment income......................................................................... 298,364
---------
Net realized and unrealized gain on investments: (Note 1)
Net realized gain on investments................................................. $1,352,859
Net change in unrealized appreciation of investments............................. 2,016,032
---------
Net realized and unrealized gain on investments............................................... 3,368,891
---------
Net increase in net assets resulting from operations.......................................... $3,667,255
---------
---------
</TABLE>
The accompanying notes are an integral part of the financial statements.
F17
<PAGE>
VALUE PORTFOLIO
STATEMENT OF CHANGES IN NET ASSETS
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
YEAR ENDED YEAR ENDED
DECEMBER 31, DECEMBER 31,
1997 1996
------------- -------------
<S> <C> <C>
Increase in net assets
Operations:
Net investment income.................................................... $ 298,364 $ 50,661
Net realized gain on investments and foreign currency transactions....... 1,352,859 733,904
Net change in unrealized appreciation (depreciation) of investments...... 2,016,032 (69,965)
------------- -------------
Net increase in net assets resulting from operations................... 3,667,255 714,600
------------- -------------
Beneficial interest transactions:
Contributions............................................................ 24,444,169 10,565,026
Withdrawals.............................................................. (11,524,091) (4,841,948)
------------- -------------
Net increase from beneficial interest transactions..................... 12,920,078 5,723,078
------------- -------------
Total increase in net assets............................................... 16,587,333 6,437,678
Net assets:
Beginning of year........................................................ 8,316,266 1,878,588
------------- -------------
End of year.............................................................. $24,903,599 $ 8,316,266
------------- -------------
------------- -------------
</TABLE>
The accompanying notes are an integral part of the financial statements.
F18
<PAGE>
VALUE PORTFOLIO
SUPPLEMENTARY DATA
- --------------------------------------------------------------------------------
Contained below are ratios and supplemental data that have been derived from
information provided in the financial statements.
<TABLE>
<CAPTION>
OCTOBER 18, 1995
(COMMENCEMENT
YEAR ENDED YEAR ENDED OF OPERATIONS)
DECEMBER 31, DECEMBER 31, TO DECEMBER 31,
1997 1996 1995
------------ ------------ ----------------
<S> <C> <C> <C>
Ratios and supplemental data:
Net assets, end of period (in 000's).... $ 24,904 $ 8,316 $ 1,879
Ratio of net investment income to
average net assets..................... 1.90% 0.88% (1.04)% (a)
Ratio of expenses to average net assets:
With expense reductions............... 0.67% 1.06% 4.33% (a)
Without expense reductions............ 0.68% 1.06% 4.33% (a)
Portfolio turnover rate+................ 93% 256% N/A
Average commission rate per share paid
on portfolio transactions+............. $ 0.0278 $ 0.0551 N/A
</TABLE>
- --------------
(a) Annualized
+ Portfolio turnover rate and average commission rate paid on portfolio
transactions are calculated on the basis of the Portfolio as a whole
without distinguishing between the classes of shares issued.
The accompanying notes are an integral part of the financial statements.
F19
<PAGE>
SMALL CAP PORTFOLIO
VALUE PORTFOLIO
NOTES TO
FINANCIAL STATEMENTS
December 31, 1997
- --------------------------------------------------------------------------------
1. SIGNIFICANT ACCOUNTING POLICIES
Small Cap Portfolio and Value Portfolio ("Portfolios") are organized as New York
Trusts and are registered under the Investment Company Act of 1940, as amended
("1940 Act"), as a diversified open-end management investment companies. The
following is a summary of significant accounting policies consistently followed
by the Portfolios in the preparation of the financial statements. The
preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of income and expenses during the reporting period. Actual
results could differ from those estimates.
(A) PORTFOLIO VALUATION
The Portfolios calculate the net asset value of and complete orders to purchase,
exchange or repurchase Portfolio shares of beneficial interest on each business
day, with the exception of those days on which the New York Stock Exchange is
closed.
Equity securities are valued at the last sale price on the exchange on which
such securities are traded, or on the principal over-the-counter market on which
such securities are traded, as of the close of business on the day the
securities are being valued or, lacking any sales, at the last available bid
price. In cases where securities are traded on more than one exchange, the
securities are valued on the exchange determined by Chancellor LGT Asset
Management, Inc. (the "Manager") to be the primary market.
Fixed income investments are valued at the mean of representative quoted bid and
ask prices for such investments or, if such prices are not available, at prices
for investments of comparative maturity, quality and type; however, when the
Manager deems it appropriate, prices obtained for the day of valuation from a
bond pricing service will be used. Short-term investments with a maturity of 60
days or less are valued at amortized cost, adjusted for market fluctuation, if
any.
Investments for which market quotations are not readily available (including
restricted securities which are subject to limitations on their sale) are valued
at fair value as determined in good faith by or under the direction of the
Company's Board of Trustees.
(B) REPURCHASE AGREEMENTS
With respect to repurchase agreements entered into by a Portfolio (the phrase
"Portfolio" hereinafter includes each of the two Portfolios), it is the
Portfolio's policy to always receive, as collateral, United States government
securities or other high quality debt securities of which the value, including
accrued interest, is at least equal to the amount to be repaid to the Portfolio
under each agreement at its maturity.
(C) OPTION ACCOUNTING PRINCIPLES
When a Portfolio writes a call or put option, an amount equal to the premium
received is included in the Portfolio's "Statement of Assets and Liabilities" as
an asset and an equivalent liability. The amount of the liability is
subsequently marked-to-market to reflect the current market value of the option.
The current market value of an option listed on a traded exchange is valued at
its last bid price, or, in the case of an over-the-counter option, is valued at
the average of the last bid prices obtained from brokers, unless a quotation
from only one broker is available, in which case only that broker's price will
be used. If an option expires on its stipulated expiration date or if the
F-20
<PAGE>
Portfolio enters into a closing purchase transaction, a gain or loss is realized
without regard to any unrealized gain or loss on the underlying security, and
the liability related to such option is extinguished. If a written call option
is exercised, a gain or loss is realized from the sale of the underlying
security and the proceeds of the sale are increased by the premium originally
received. If a written put option is exercised, the cost of the underlying
security purchased would be decreased by the premium originally received. The
Portfolio can write options only on a covered basis, which, for a call, requires
that the Portfolio hold the underlying security, and, for a put, requires the
Portfolio to set aside cash, U.S. government securities or other liquid
securities in an amount not less than the exercise price or otherwise provide
adequate cover at all times while the put option is outstanding. The Portfolio
may use options to manage its exposure to the stock market and to fluctuations
in interest rates.
The premium paid by the Portfolio for the purchase of a call or put option is
included in the Portfolio's "Statement of Assets and Liabilities" as an
investment and subsequently "marked-to-market" to reflect the current market
value of the option. If an option which the Portfolio has purchased expires on
the stipulated expiration date, the Portfolio realizes a loss in the amount of
the cost of the option. If the Portfolio enters into a closing sale transaction,
the Portfolio realizes a gain or loss, depending on whether proceeds from the
closing sale transaction are greater or less than the cost of the option. If the
Portfolio exercises a call option, the cost of the securities acquired by
exercising the call is increased by the premium paid to buy the call. If the
Portfolio exercises a put option, it realizes a gain or loss from the sale of
the underlying security, and the proceeds from such sale are decreased by the
premium originally paid.
The risk associated with purchasing options is limited to the premium originally
paid. The risk in writing a call option is that the Portfolio may forego the
opportunity of profit if the market value of the underlying security or index
increases and the option is exercised. The risk in writing a put option is that
the Portfolio may incur a loss if the market value of the underlying security or
index decreases and the option is exercised. In addition, there is the risk the
Portfolio may not be able to enter into a closing transaction because of an
illiquid secondary market.
(D) FUTURES CONTRACTS
A futures contract is an agreement between two parties to buy and sell a
security at a set price on a future date. Upon entering into such a contract the
Portfolio is required to pledge to the broker an amount of cash or securities
equal to the minimum "initial margin" requirements of the exchange on which the
contract is traded. Pursuant to the contract, a Portfolio agrees to receive from
or pay to the broker an amount of cash equal to the daily fluctuation in value
of the contract. Such receipts or payments are known as "variation margin" and
are recorded by the Portfolio as unrealized gains or losses. When the contract
F21
<PAGE>
SMALL CAP PORTFOLIO
VALUE PORTFOLIO
is closed, the Portfolio records a realized gain or loss equal to the difference
between the value of the contract at the time it was opened and the value at the
time it was closed. The potential risk to the Portfolio is that the change in
value of the underlying securities may not correlate to the change in value of
the contracts. The Portfolio may use futures contracts to manage its exposure to
the stock market and to fluctuations in interest rates.
(E) SECURITY TRANSACTIONS AND RELATED INVESTMENT INCOME
Security transactions are accounted for on the trade date (date the order to buy
or sell is executed). The cost of securities sold is determined on a first-in,
first-out basis, unless otherwise specified. Dividends are recorded on the
ex-dividend date. Interest income is recorded on the accrual basis. Where a high
level of uncertainty exists as to its collection, income is recorded net of all
withholding tax with any rebate recorded when received. The Portfolio may trade
securities on other than normal settlement terms. This may increase the risk if
the other party to the transaction fails to deliver and causes the Portfolio to
subsequently invest at less advantageous prices.
(F) PORTFOLIO SECURITIES LOANED At December 31, 1997 Small Cap Portfolio and
Value Portfolio had stocks with an aggregate value of $1,812,494 and $794,531
respectively, which were on loan to brokers. The loans were secured by cash
collateral of $1,869,550, received by Small Cap Portfolio and $810,000, received
by Value Portfolio. Cash collateral is received by the Portfolio against loaned
securities in the amount at least equal to 102% of the market value of the
loaned securities at the inception of each loan. The collateral cash is invested
in a securities lending trust which consists of a portfolio of high quality
short duration securities whose average effective duration is restricted to 120
days or less. This collateral must be maintained at not less than 100% of the
market value of the loaned securities during the period of the loan. Small Cap
Portfolio and Value Portfolio received securities lending fees of $17,489 and
$896 respectively.
(G) DEFERRED ORGANIZATIONAL EXPENSES
Expenses incurred by the Portfolios in connection with their organization, their
initial registration with the Securities and Exchange Commission and with
various states and the initial public offering of their shares aggregated
$25,000 for each Portfolio. These expenses are being amortized on a straightline
basis over a five-year period.
(H) TAXES
It is the policy of the Portfolios to meet the requirements of the Internal
Revenue Code of 1986, as amended ("Code"). Therefore, no provision has been made
for Federal taxes on income, capital gains, or unrealized appreciation of
securities held, and excise tax on income and capital gains.
(I) RESTRICTED SECURITIES
A Portfolio is permitted to invest in privately placed restricted securities.
These securities may be resold in transactions exempt from registration or to
the public if the securities are registered. Disposal of these securities may
involve time-consuming negotiations and expense, and prompt sale at an
acceptable price may be difficult.
(J) INDEXED SECURITIES
A Portfolio may invest in indexed securities whose value is linked either
directly or indirectly to changes in foreign currencies, interest rates,
equities, indices, or other reference instruments. Indexed securities may be
more volatile than the reference instrument itself, but any loss is limited to
the amount of the original investment.
F-22
<PAGE>
(K) LINE OF CREDIT
Each of the GT Global America Small Cap Growth Fund and the GT Global America
Value Fund (and their respective Portfolios), along with certain other funds
advised and/or administered by the Manager, has a line of credit with BankBoston
and State Street Bank & Trust Company. The arrangements with the banks allow all
specific funds to borrow an aggregate maximum amount of $250,000,000. Each of
these two funds is limited to borrowing up to 33 1/3% of the value of each
Fund's total assets. The Funds had no loans outstanding at December 31, 1997.
For the year ended December 31, 1997, the average outstanding daily balance of
bank loans (based on the number of days the loans were outstanding) for Small
Cap Portfolio and Value Portfolio was $101,429 and $284,000 with a weighted
average interest rate of 6.34% and 6.31%, respectively. Interest expense for
Small Cap Portfolio and Value Portfolio for the year ended December 31, 1997 was
$125 and $50, respectively, included in "Other Expenses" on the Statement of
Operations.
2. RELATED PARTIES
Chancellor LGT Asset Management, Inc. is the Portfolio's investment manager and
administrator. Each portfolio pays investment management and administration fees
to the Manager at the annualized rate of 0.475% on the first $500 million of
average daily net assets of the Portfolio; 0.45% on the next $500 million;
0.425% on the next $500 million; and 0.40% on amounts thereafter. These fees are
computed daily and paid monthly.
The Portfolio pays each of its Trustees who is not an employee, officer or
director of the Manager, GT Global or GT Global Investor Services, Inc. $500 per
year plus $150 for each meeting of the board or any committee thereof attended
by the Trustees.
At December 31, 1997, all of the shares of beneficial interest of each Portfolio
were owned either by GT Global America Small Cap Growth Fund and GT Global
America Value Fund or the Manager.
3. PURCHASES AND SALES OF SECURITIES
For the year ended December 31, 1997, purchases of investment securities by the
Small Cap Portfolio and Value Portfolio, other than U.S. government obligations
and short-term investments, aggregated $1,037,388,895 and $25,951,699,
respectively. Sales of investment securities by the Small Cap Portfolio and
Value Portfolio, other than U.S. government obligations and short-term
investments, aggregated $1,221,752,474 and $13,967,002, respectively. There were
no purchases or sales of U.S. government obligations by the Portfolios during
the year.
F23
<PAGE>
PART C
Item 24. FINANCIAL STATEMENTS AND EXHIBITS.
--------------------------------------------
(a) Financial Statements
The following financial statements as of December 31, 1997, and for
the fiscal year then ended for Small Cap Portfolio and Value Portfolio are
included herewith.
--Report of Independent Accountants
--Portfolios of Investments
--Statements of Assets and Liabilities
--Statements of Operations
--Statements of Changes in Net Assets
--Supplementary Data
--Notes to Financial Statements
(b) Exhibits
1. Agreement and Declaration of Trust of the Registrant -- Filed
herewith.
2. By-Laws of the Registrant -- Filed herewith.
5.(a) Form of Investment Management and Administration Contract
between the Registrant and A I M Advisors, Inc. -- Filed
herewith.
(b) Form of Investment Sub-Advisory and Sub-Administration
Contract between A I M Advisors, Inc. and INVESCO (NY), Inc.
-- Filed herewith.
8.(a) Custodian Agreement between the Registrant and State Street
Bank and Trust Company. (1)
(b) Letter Agreement between Registrant and State Street Bank and
Trust Company -- Filed herewith.
9.(a) Transfer Agency Agreement between the Registrant and GT Global
Investor Services, Inc. (1)
(b) Form of Letter Agreement assigning Transfer Agency Contract --
Filed herewith.
11. Consent of Coopers & Lybrand L.L.P., Independent Accountants -
Filed herewith.
C-1
<PAGE>
13. Investment representation letters of initial investors. (2)
27. Financial Data Schedules. (3)
-------------------------------
(1)Incorporated by reference to the identically enumerated Exhibit of the
Registration Statement on Form N-1A, filed on October 17, 1995.
(2)Incorporated by reference to the identically enumerated Exhibit of
Post-Effective Amendment No. 2 to the Registration Statement on Form N-1A,
filed on April 29, 1996.
(3)Incorporated by reference to the identically enumerated Exhibit of
Post-Effective Amendment No. 3 to the Registration Statement on Form N-1A,
filed on April 30, 1998.
Item 25. PERSONS CONTROLLED BY OR UNDER COMMON CONTROL WITH REGISTRANT.
------------------------------------------------------------------------
Not applicable.
Item 26. NUMBER OF HOLDERS OF SECURITIES.
------------------------------------------
(1) (2)
Title of Class Number of Record Holders
Series of Beneficial (as of June 1, 1998)
Interests
Small Cap Portfolio 2
Value Portfolio 2
Item 27. INDEMNIFICATION.
--------------------------
The Registrant's Agreement and Declaration of Trust dated May 7, 1998,
provides, among other things, (1) that a Trustee shall not be liable for any
act, omission, or obligation of the Registrant or any Trustee (except for
liability to the Registrant or its shareholders by reason of willful
misfeasance, bad faith, gross negligence, or reckless disregard of the
Trustees' duties); (2) that the Trustees and Officers shall be indemnified by
the Registrant to the fullest extent permitted by the Delaware Business Trust
Act and other applicable law; and (3) that the shareholders and former
shareholders of the Registrant shall be held harmless by the Registrant (or
applicable portfolio) from personal liability arising from their status as
C-2
<PAGE>
such, and shall be indemnified by the Registrant (or applicable portfolio)
against all loss and expense arising from such personal liability in
accordance with the Registrant's By-Laws and applicable law.
Item 28. BUSINESS AND OTHER CONNECTIONS OF INVESTMENT ADVISER AND
SUB-ADVISER.
---------------------------------------------------------------------------
Information as to any other business, profession, vocation or employment
of a substantial nature in which each director or officer of A I M Advisors,
Inc. and INVESCO (NY), Inc. is, or at any time during the past two years has
been, engaged for his or her own account or in the capacity of director,
officer, employee, partner or trustee is incorporated herein by reference
from the section entitled "Management" in the Feeder's Part A and the
sections entitled "Trustees and Executive Officers" and "Management" in the
Feeder's Part B.
Information as to the directors and officers of A I M Advisors, Inc. and
INVESCO (NY), Inc., the Registrant's investment manager and sub-adviser, is
included in Schedule A and Schedule D of Part 1 of each entity's Form ADV
(File No. 801-12313 and File No. 801-10254, respectively), filed with the
SEC, which are incorporated herein by reference thereto.
Item 29. PRINCIPAL UNDERWRITERS.
---------------------------------
Not applicable.
Item 30. LOCATION OF ACCOUNTS AND RECORDS.
-------------------------------------------
Accounts, books and other records required by Rules 31a-1 and 31a-2 under
the 1940 Act, are maintained and held in the offices of the Registrant and
its sub-adviser, INVESCO (NY), Inc., 50 California Street, 27th Floor, San
Francisco, California 94111.
Records covering shareholder accounts and portfolio transactions are also
maintained and kept by the Registrant's Custodian, State Street Bank and
Trust Company, 225 Franklin Street, Boston, Massachusetts 02110.
Item 31. MANAGEMENT SERVICES.
------------------------------
Other than as set forth in Parts A and B of this Registration Statement,
the Registrant is not a party to any management-related service contract.
C-3
<PAGE>
Item 32. UNDERTAKINGS.
-----------------------
None.
C-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Investment Company Act of 1940, Growth
Portfolio, a New York common law trust, has duly caused this Registration
Statement on Form N-1A to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of San Francisco and State of
California on the 18th day of June, 1998.
GROWTH PORTFOLIO
By /s/ Michael A. Silver
---------------------
Michael A. Silver
Assistant Secretary
<PAGE>
SIGNATURES
Pursuant to the requirements of the Investment Company Act of 1940, Growth
Portfolio, a Delaware business trust, has duly caused this Registration
Statement on Form N-1A to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of San Francisco and State of
California on the 18th day of June, 1998.
GROWTH PORTFOLIO
By /s/ MICHAEL A. SILVER
---------------------
Michael A. Silver
Assistant Secretary
AGREEMENT AND DECLARATION OF TRUST
OF
GROWTH PORTFOLIO
WHEREAS, THIS AGREEMENT AND DECLARATION OF TRUST is made and entered into
as of May 7, 1998, among William J. Guilfoyle, C. Derek Anderson, Frank S.
Bayley, Arthur C. Patterson, and Ruth H. Quigley, as Trustees, and each person
who becomes a Holder in accordance with the terms hereinafter set forth.
WHEREAS, the parties hereto desire to create a business trust pursuant to
the Delaware Act for the investment and reinvestment of funds contributed
thereto;
NOW, THEREFORE, the Trustees hereby direct that a Certificate of Trust be
filed with the Office of the Secretary of State of Delaware and do hereby
declare that all money and property contributed to the trust hereunder shall be
held and managed in trust under this Agreement for the benefit of the Holders as
herein set forth below.
ARTICLE I
NAME, DEFINITIONS, PURPOSE AND CERTIFICATE OF TRUST
Section 1.1. NAME. The name of the business trust created hereby is
"Growth Portfolio," and the Trustees may transact the Trust's affairs in that
name. The Trust shall constitute a Delaware business trust in accordance with
the Delaware Act.
Section 1.2. DEFINITIONS. Whenever used herein, unless otherwise required
by the context or specifically provided:
(a) "Affiliated Person," "Company," "Person," and "Principal
Underwriter" shall have the meanings given them in the 1940 Act, as
modified by or interpreted by any applicable order or orders of the
Commission or any rules or regulations adopted or interpretive
releases of the Commission thereunder. The term "Commission" shall
have the meaning given it in the 1940 Act;
(b) "Agreement" means this Agreement and Declaration of Trust, as it may
be amended from time to time;
(c) "Book Capital Account" means, for any Holder of an Interest in a
particular Portfolio at any time, the Book Capital Account of the
Holder with respect to that Portfolio, maintained in accordance with
Article VIII, Section 8.1 hereof;
(d) "Bylaws" means the Bylaws referred to in Article IV, Section 4.1(e)
hereof, as from time to time amended;
<PAGE>
(e) "Code" means the Internal Revenue Code of 1986, as amended;
(f) "Covered Person" means every person who is, or has been, a Trustee
or an officer or employee of the Trust;
(g) The "Delaware Act" refers to the Delaware Business Trust Act, 12
Del. C.ss. 3801 et seq., as such Act may be amended from time to
time;
(h) "Fiscal Year" means, with respect to any Portfolio, the annual
period that ends on December 31 of each year or such other annual
period as may be determined from time to time by the Trustees;
(i) "Holder" means a record owner of an Interest in a Portfolio;
(j) "Interest" means, with respect to each Portfolio, the beneficial
interest of a Holder in that Portfolio, including all rights,
powers, and privileges accorded to such Holders in this Agreement.
The Interest of a Holder in any particular Portfolio may be
expressed as a percentage, determined by calculating, at such times
and on such bases as the Trustees shall from time to time determine,
the ratio of the Holder's Book Capital Account balance to the total
Book Capital Account balances of all Holders in that Portfolio.
Reference herein to a specified percentage in, or fraction of, the
Interests of the Holders in a Portfolio means Holders whose combined
Book Capital Account balances represent such specified percentage or
fraction of the Book Capital Account balances of all Holders in that
Portfolio;
(k) "Liabilities," when used with respect to the Trust or a Portfolio,
means all debts, liabilities, obligations, expenses, costs, and
charges incurred, contracted for, or otherwise existing with respect
to the Trust or that Portfolio;
(l) "Majority Interests Vote" means "the vote of a majority of the
outstanding voting securities" (as defined in the 1940 Act) of the
Trust or Portfolio, as applicable;
(m) "Net Asset Value" means, with respect to any Portfolio, the amount
by which the assets belonging to that Portfolio exceed its
Liabilities, all as determined by or under the Trustees' direction;
(n) "Net Profits" of a Portfolio for any given time period means the
excess of its Net Asset Value at the close of business on the last
day of such period, prior to any distributions being made with
respect to such period, over its Net Asset Value as of the opening
of business on the first day of such period, after any contributions
made on such date; and "Net Losses" of a Portfolio for any given
time period means the excess of its Net Asset Value as of the
opening of business on the first day of such period, after any
2
<PAGE>
contributions made on such date, over its Net Asset Value at the
close of business on the last day of such period, prior to any
distributions being made with respect to such period;
(o) The "1940 Act" refers to the Investment Company Act of 1940, as
amended from time to time;
(p) "Portfolio" means a series of Interests in the Trust established in
accordance with the provisions of Article II, Section 2.3 hereof;
(q) The "Trust" means Growth Portfolio, the Delaware business trust
established hereby, and reference to the Trust, when applicable to
one or more Portfolios, shall refer to each such Portfolio;
(r) The "Trustees" means the Persons who have signed this Agreement as
trustees so long as they shall continue to serve as trustees of the
Trust in accordance with the terms hereof, and all other Persons who
may from time to time be duly appointed as Trustee in accordance
with the provisions of Article III, Section 3.4 hereof or elected as
Trustee in accordance with the provisions of Article III, Section
3.6 hereof, and reference herein to a Trustee or to the Trustees
shall refer to such Persons in their capacity as Trustees hereunder;
and
(s) "Trust Property" means any and all property, real or personal,
tangible or intangible, which is owned or held by or for the account
of the Trust or any Portfolio, or the Trustees on behalf of the
Trust or any Portfolio.
Section 1.3. PURPOSE. The purpose of the Trust is to conduct, operate and
carry on the business of a management investment company registered under the
1940 Act through one or more Portfolios investing primarily in securities and to
carry on such other business as the Trustees may from time to time determine
pursuant to their authority under this Agreement.
Section 1.4. CERTIFICATE OF TRUST. Immediately upon the execution of this
Agreement, the Trustees shall file a Certificate of Trust with respect to the
Trust in the Office of the Secretary of State of the State of Delaware pursuant
to the Delaware Act.
ARTICLE II
BENEFICIAL INTEREST
Section 2.1. INTERESTS. The beneficial interest in the Trust shall be
divided into an unlimited number of Interests. The Trustees may, from time to
time, authorize the division of the Interests into one or more series, each of
which constitutes a Portfolio, in accordance with Article II, Section 2.3 of
this Agreement. All Interests issued hereunder shall be fully paid and
nonassessable.
Section 2.2. ISSUANCE OF INTERESTS. The Trustees in their discretion may,
from time to time, without vote of the Holders, issue Interests, in addition to
the then issued and outstanding Interests, to such party or parties and for such
amount and type of consideration, subject to applicable law, including cash or
securities, at such time or times and on such terms as the Trustees may deem
3
<PAGE>
appropriate, and may in such manner acquire other assets (including the
acquisition of assets subject to, and in connection with, the assumption of
liabilities) and businesses.
Section 2.3. ESTABLISHMENT OF PORTFOLIOS. The Trust shall consist of one
or more separate and distinct Portfolios, each with an unlimited number of
Interests unless otherwise specified. The Trustees hereby establish and
designate the Portfolios listed on Schedule A attached hereto and made a part
hereof ("Schedule A"). Each additional Portfolio shall be established by the
adoption of a resolution by the Trustees and shall be effective upon the date
stated therein (or, if no such date is stated, upon the date of such adoption).
The Interests in each Portfolio shall have the relative rights and preferences
provided for herein and such rights and preferences as may be designated by the
Trustees. The Trust shall maintain separate and distinct records for each
Portfolio and shall hold and account for the assets belonging thereto separately
from the other Trust Property and the assets belonging to any other Portfolio.
Each Interest in a Portfolio shall represent an equal beneficial interest in the
net assets belonging to that Portfolio. A Portfolio may have exclusive voting
rights with respect to matters affecting only that Portfolio.
Section 2.3.1. Subject to Article VI, Section 6.1 of this Agreement, the
Trustees shall have full power and authority, in their sole discretion without
obtaining any prior authorization or vote of the Holders of any Portfolio, to
establish and designate and to change in any manner any Portfolio; to fix such
preferences, voting powers, rights, and privileges of any Portfolio as the
Trustees may from time to time determine (but the Trustees may not change the
preferences, voting powers, rights, and privileges of Interests in a manner
materially adverse to the Holders of such Interests without the prior approval
of the affected Holders); and to take such other action with respect to the
Interests as the Trustees may deem desirable. A Portfolio may issue any number
of Interests but need not issue any Interests. At any time that there are no
Interests outstanding of any particular Portfolio previously established and
designated, the Trustees may abolish that Portfolio and the establishment and
designation thereof.
Section 2.3.2. Unless the establishing resolution or any other resolution
adopted pursuant to this Section 2.3 otherwise provides, Interests in each
Portfolio established hereunder shall have the following relative rights and
preferences:
(a) Holders shall have no preemptive or other right to subscribe to any
additional Interests or other securities issued by the Trust or the
Trustees, whether of the same or other Portfolio.
(b) All consideration received by the Trust for the issue or sale of
Interests in a particular Portfolio, together with all assets in
which such consideration is invested or reinvested, all income,
earnings, profits, and proceeds thereof, including any proceeds
derived from the sale, exchange, or liquidation of such assets, and
any funds or payments derived from any reinvestment of such proceeds
in whatever form the same may be, shall be held and accounted for
separately from the other assets of the Trust and of every other
Portfolio and may be referred to herein as "assets belonging to"
that Portfolio. The assets belonging to a particular Portfolio shall
4
<PAGE>
belong to that Portfolio for all purposes, and to no other
Portfolio, subject only to the rights of creditors of that
Portfolio. In addition, any assets, income, earnings, profits, or
funds, or payments and proceeds with respect thereto, which are not
readily identifiable as belonging to any particular Portfolio shall
be allocated by the Trustees between and among one or more of the
Portfolios for all purposes and such assets, income, earnings,
profits, or funds, or payments and proceeds with respect thereto,
shall be assets belonging to that Portfolio.
(c) A particular Portfolio shall be charged with the Liabilities of that
Portfolio, and all Liabilities attributable to any particular
Portfolio shall be borne by such Portfolio. Any general Liabilities
of the Trust that are not readily identifiable as chargeable to any
particular Portfolio shall be allocated and charged by the Trustees
between or among any one or more of the Portfolios in such manner as
the Trustees in their sole discretion deem fair and equitable. Each
such allocation shall be conclusive and binding upon the Holders in
all Portfolios for all purposes. Without limitation of the foregoing
provisions of this Subsection 2.3.2, the Liabilities incurred,
contracted for or otherwise existing with respect to a particular
Portfolio shall be enforceable against the assets of such Portfolio
only, and not against the assets of the Trust generally or the
assets belonging to any other Portfolio. Notice of this contractual
limitation of inter-Portfolio liabilities shall be set forth in the
Certificate of Trust described in Article I, Section 1.4 of this
Agreement (whether originally or by amendment), and upon the giving
of such notice in the Certificate of Trust, the statutory provisions
of Section 3804 of the Delaware Act relating to limitations on
inter-Portfolio liabilities (and the statutory effect under Section
3804 of setting forth such notice in the Certificate of Trust) shall
become applicable to the Trust and each Portfolio.
All references to Interests in this Agreement shall be deemed to be
Interests in any or all Portfolios as the context may require. All provisions
herein relating to the Trust shall apply equally to each Portfolio of the Trust,
except as the context otherwise requires.
Section 2.4. INVESTMENT IN THE TRUST; LIMITATION ON NUMBER OF HOLDERS.
Investments may be accepted by the Trust from such Persons, at such times, on
such terms, and for such consideration, which may consist of cash or tangible or
intangible property or a combination thereof, as the Trustees from time to time
may authorize. At the Trustees' sole discretion, such investments, subject to
applicable law, may be in the form of cash or securities in which the affected
Portfolio is authorized to invest, valued as provided in applicable law. Each
such investment shall be credited to the individual Holder's account in the form
of full and fractional Interests in the Trust, in such Portfolio as the
purchaser shall select. The Trustees shall have the right to refuse to accept
investments in any Portfolio at any time without any cause or reason therefor
whatsoever. Notwithstanding anything herein to the contrary, (a) Interests shall
only be issued in a transaction or transactions not requiring registration under
the Securities Act of 1933 and (b) no Portfolio shall at any time have more than
100 Holders. In determining the number of Holders of any Portfolio, a person
owning an Interest through a partnership, grantor trust, or S corporation (a
"flow-through entity") shall be counted as a Holder if substantially all the
5
<PAGE>
value of that person's interest in the flow-through entity is attributable to
that Portfolio and a principal purpose for using a tiered structure was to
satisfy the 100-Holder condition. The Trustees shall impose such other
limitations on investments in the Portfolios as are necessary to avoid having
any Portfolio treated as a "publicly traded partnership" within the meaning of
Section 7704 of the Code.
Section 2.5. PERSONAL LIABILITY OF HOLDERS. As provided by applicable law,
no Holder of the Trust shall be personally liable for the Liabilities incurred
by, contracted for, or otherwise existing with respect to, the Trust or any
Portfolio. Neither the Trust nor the Trustees, nor any officer, employee, or
agent of the Trust shall have any power to bind personally any Holder or, except
as provided herein or by applicable law, to call upon any Holder for the payment
of any sum of money or assessment whatsoever other than such as the Holder may
at any time personally agree to pay by way of subscription for an Interest or
otherwise. The Holders shall be entitled, to the fullest extent permitted by
applicable law, to the same limitation of personal liability as is extended
under the Delaware General Corporation Law to stockholders of private
corporations for profit. Every note, bond, contract, or other undertaking issued
by or on behalf of the Trust or the Trustees relating to the Trust or to any
Portfolio thereof shall include a recitation limiting the obligation represented
thereby to the Trust and its assets or to one or more Portfolios thereof and the
assets belonging thereto (but the omission of such a recitation shall not
operate to bind any Holder or Trustee of the Trust).
Section 2.6. ASSENT TO AGREEMENT. Every Holder, by virtue of having
purchased an Interest, shall be held to have expressly assented to, and agreed
to be bound by, the terms hereof. The death of a Holder during the continuance
of the Trust shall not operate to terminate the same nor entitle the
representative of any deceased Holder to an accounting or to take any action in
court or elsewhere against the Trust or the Trustees, but only to rights of said
decedent under this Trust.
ARTICLE III
THE TRUSTEES
Section 3.1. MANAGEMENT OF THE TRUST. The Trustees shall have exclusive
and absolute control over the Trust Property and over the business of the Trust
to the same extent as if the Trustees were the sole owners of the Trust Property
and business in their own right, but with such powers of delegation as may be
permitted by this Agreement. The Trustees shall have power to conduct the
business of the Trust and carry on its operations in any and all of its branches
and maintain offices both within and without the State of Delaware, in any and
all states of the United States of America, in the District of Columbia, in any
and all commonwealths, territories, dependencies, colonies, or possessions of
the United States of America, and in any and all foreign jurisdictions and to do
all such other things and execute all such instruments as they deem necessary,
proper or desirable in order to promote the interests of the Trust although such
things are not herein specifically mentioned. Any determination as to what is in
the interests of the Trust made by the Trustees in good faith shall be
conclusive. In construing the provisions of this Agreement, the presumption
shall be in favor of a grant of power to the Trustees.
6
<PAGE>
The enumeration of any specific power in this Agreement shall not be
construed as limiting the aforesaid power. The powers of the Trustees may be
exercised without order of or resort to any court or other authority.
Section 3.2. INITIAL TRUSTEES. The initial Trustees shall be the persons
named herein.
Section 3.3. TERMS OF OFFICE OF TRUSTEES. The Trustees shall hold office
during the lifetime of this Trust, and until its termination as herein provided;
except (a) that any Trustee may resign his trusteeship or may retire by written
instrument signed by him and delivered to the other Trustees, which shall take
effect upon such delivery or upon such later date as is specified therein; (b)
that any Trustee may be removed at any time by written instrument, signed by at
least two-thirds of the number of Trustees prior to such removal, specifying the
date when such removal shall become effective; (c) that any Trustee who has
died, become physically or mentally incapacitated by reason of disease or
otherwise, or is otherwise unable to serve, may be retired by written instrument
signed by a majority of the other Trustees, specifying the date of his
retirement; and (d) that a Trustee may be removed at any meeting of the Holders
of the Trust by a vote of the Holders owning at least two-thirds of the
Interests.
Section 3.4. VACANCIES AND APPOINTMENT OF TRUSTEES. A vacancy shall occur
in case of the declination to serve, death, resignation, retirement or removal
of a Trustee, or a Trustee is otherwise unable to serve, or an increase in the
number of Trustees. Whenever a vacancy in the Board of Trustees shall occur,
until such vacancy is filled, the other Trustees shall have all the powers
hereunder and the certification of the other Trustees of such vacancy shall be
conclusive. In the case of an existing vacancy, the remaining Trustees may fill
such vacancy by appointment of such other person as they in their discretion
shall see fit, or may leave such vacancy unfilled or may reduce the number of
Trustees to not less than two (2) Trustees. Such appointment shall be evidenced
by a written instrument signed by a majority of the Trustees in office or by
resolution of the Trustees, duly adopted, which shall be recorded in the minutes
of a meeting of the Trustees, whereupon the appointment shall take effect.
An appointment of a Trustee may be made by the Trustees then in office in
anticipation of a vacancy to occur by reason of retirement, resignation, or
removal of a Trustee or an increase in number of Trustees effective at a later
date, provided that said appointment shall become effective only at the time or
after the expected vacancy occurs. As soon as any Trustee appointed pursuant to
this Section 3.4 shall have accepted this appointment in writing and agreed in
writing to be bound by the terms of the Agreement, the Trust estate shall vest
in the new Trustee or Trustees, together with the continuing Trustees, without
any further act or conveyance, and he shall be deemed a Trustee hereunder.
Section 3.5. TEMPORARY ABSENCE OF TRUSTEE. Any Trustee may, by power of
attorney, delegate his power for a period not exceeding six months at any one
time to any other Trustee or Trustees, provided that in no case shall less than
two Trustees personally exercise the other powers hereunder except as herein
otherwise expressly provided.
7
<PAGE>
Section 3.6. NUMBER OF TRUSTEES. The number of Trustees shall initially be
five (5), and thereafter shall be such number as shall be fixed from time to
time by a majority of the Trustees; provided, however, that the number of
Trustees shall in no event be less than two (2) nor more than twelve (12). The
Holders shall elect the Trustees (other than the initial Trustees) on such dates
as the Trustees may fix from time to time.
Section 3.7. EFFECT OF DEATH, RESIGNATION, ETC. OF A TRUSTEE. The
declination to serve, death, resignation, retirement, removal, incapacity, or
inability of the Trustees, or any one of them, shall not operate to terminate
the Trust or to revoke any existing agency created pursuant to the terms of this
Trust Agreement.
Section 3.8. OWNERSHIP OF ASSETS OF THE TRUST. The assets of the Trust and
of each Portfolio thereof shall be held separate and apart from any assets now
or hereafter held in any capacity other than as Trustee hereunder by the
Trustees or any successor Trustees. Legal title in all of the assets of the
Trust and the right to conduct any business shall at all times be considered as
vested in the Trustees on behalf of the Trust, except that the Trustees may
cause legal title to any Trust Property to be held by, or in the name of the
Trust, or in the name of any Person as nominee. No Holder shall be deemed to
have a severable ownership in any individual asset of the Trust or belonging to
any Portfolio or any right of partition or possession thereof, but each Holder
shall have, except as otherwise provided for herein, a proportionate undivided
beneficial interest in the Trust or the assets belonging to the Portfolio in
which the Holder holds an Interest. The Interests shall be personal property
giving only the rights specifically set forth in this Agreement or the Delaware
Act.
ARTICLE IV
POWERS OF THE TRUSTEES
Section 4.1. POWERS. The Trustees in all instances shall act as
principals, and are and shall be free from the control of the Holders. The
Trustees shall have full power and authority to do any and all acts and to make
and execute any and all contracts and instruments that they may consider
necessary or appropriate in connection with the management of the Trust. Without
limiting the foregoing and subject to any applicable limitation in this
Agreement or the Bylaws of the Trust, the Trustees shall have power and
authority:
(a) To invest and reinvest cash and other property, and to hold cash or
other property uninvested, without in any event being bound or
limited by any present or future law or custom in regard to
investments by Trustees, and to sell, exchange, lend, pledge,
mortgage, hypothecate, write options on, and lease any or all of the
assets of the Trust;
(b) To operate as, and to carry on the business of, an investment
company, and exercise all the powers necessary and appropriate to
the conduct of such operations;
(c) To borrow money and in this connection issue notes or other evidence
of indebtedness; to secure borrowings by mortgaging, pledging, or
8
<PAGE>
otherwise subjecting as security the Trust Property; to endorse,
guarantee, or undertake the performance of an obligation or
engagement of any other Person and to lend Trust Property;
(d) To provide for the distribution of Interests either through a
placement agent or by the Trust itself, or both;
(e) To adopt Bylaws not inconsistent with this Agreement providing for
the conduct of the business of the Trust and to amend and repeal
them to the extent that they do not reserve such right to the
Holders; such Bylaws shall be deemed incorporated and included in
this Agreement;
(f) To elect and remove such officers and appoint and terminate such
agents as they consider appropriate;
(g) To employ one or more banks, trust companies or companies that are
members of a national securities exchange, or such other domestic or
foreign entities as custodians of any assets of the Trust subject to
any conditions set forth in this Agreement or in the Bylaws;
(h) To set record dates in the manner provided herein or in the Bylaws;
(i) To delegate such authority as they consider desirable to any
officers of the Trust and to any investment adviser, manager,
administrator, custodian, placement agent, or other agent or
independent contractor;
(j) To sell or exchange any or all of the assets of the Trust, subject
to the provisions of Article VI, Section 6.1 hereof;
(k) To vote or give assent, or exercise any rights of ownership, with
respect to stock or other securities or property; and to execute and
deliver proxies and powers of attorney to such person or persons as
the Trustees shall deem proper, granting to such person or persons
such power and discretion with relation to securities or property as
the Trustee shall deem proper;
(l) To exercise powers and rights of subscription or otherwise which in
any manner arise out of ownership of securities;
(m) To hold any security or property in a form not indicating any trust,
whether in bearer, book entry, unregistered, or other negotiable
form; or either in the name of the Trust or of a Portfolio or of a
custodian or a nominee or nominees, subject in either case to proper
safeguards according to the usual practice of Delaware business
trusts or investment companies;
9
<PAGE>
(n) To establish separate and distinct Portfolios with separately
defined investment objectives and policies and distinct investment
purposes in accordance with the provisions of Article II hereof;
(o) Subject to the provisions of Section 3804 of the Delaware Act, to
allocate assets, liabilities, and expenses of the Trust to a
particular Portfolio or to apportion the same between or among two
or more Portfolios, provided that any liabilities or expenses
incurred by a particular Portfolio shall be payable solely out of
the assets belonging to that Portfolio as provided for in Article II
hereof;
(p) To consent to or participate in any plan for the reorganization,
consolidation, or merger of any corporation or concern, any security
of which is held in the Trust; to consent to any contract, lease,
mortgage, purchase, or sale of property by such corporation or
concern, and to pay calls or subscriptions with respect to any
security held in the Trust;
(q) To compromise, arbitrate, or otherwise adjust claims in favor of or
against the Trust or any matter in controversy including, but not
limited to, claims for taxes;
(r) To make distributions of income and of capital gains and capital to
Holders in the manner hereinafter provided;
(s) To establish, from time to time, a minimum investment for Holders in
the Trust or in one or more Portfolios, and to require the
redemption of the Interests of any Holder whose investment is less
than such minimum upon giving notice to such Holder;
(t) Subject to the requirements of the 1940 Act, to establish one or
more committees, to delegate any of the powers of the Trustees to
said committees, and to adopt a committee charter providing for such
responsibilities, membership (including Trustees, officers, or other
agents of the Trust therein) and any other characteristics of said
committees as the Trustees may deem proper. Notwithstanding the
provisions of this Article IV, and in addition to such provisions or
any other provision of this Agreement or of the Bylaws, the Trustees
may by resolution appoint a committee consisting of less than the
whole number of Trustees then in office, which committee may be
empowered to act for and bind the Trustees and the Trust, as if the
acts of such committee were the acts of all the Trustees then in
office, with respect to the institution, prosecution, dismissal,
settlement, review, or investigation of any action, suit, or
proceeding which shall be pending or threatened to be brought before
any court, administrative agency, or other adjudicatory body;
(u) To interpret the investment policies, practices or limitations of
any Portfolios;
(v) To establish a registered office and have a registered agent in the
State of Delaware; and
10
<PAGE>
(w) In general to carry on any other business in connection with or
incidental to any of the foregoing powers, to do everything
necessary, suitable, or proper for the accomplishment of any purpose
or the attainment of any object or the furtherance of any power
hereinbefore set forth, either alone or in association with others,
and to do every other act or thing incidental or appurtenant to or
growing out of or connected with the aforesaid business or purposes,
objects, or powers.
The foregoing clauses shall be construed both as objects and powers, and
the foregoing enumeration of specific powers shall not be held to limit or
restrict in any manner the general powers of the Trustees. Any action by one or
more of the Trustees in their capacity as such hereunder shall be deemed an
action on behalf of the Trust or the applicable Portfolio, and not an action in
an individual capacity.
The Trustees shall not be limited to investing in obligations maturing
before the possible termination of the Trust.
No one dealing with the Trustees shall be under any obligation to make any
inquiry concerning the authority of the Trustees, or to see to the application
of any payments made or property transferred to the Trustees or upon their
order.
Section 4.2. ISSUANCE AND REPURCHASE OF INTERESTS. The Trustees shall have
the power to issue, sell, repurchase, redeem, retire, cancel, acquire, hold,
resell, reissue, dispose of, and otherwise deal in Interests and, subject to the
provisions set forth in Articles II and VII, to apply to any such repurchase,
redemption, retirement, cancellation, or acquisition of Interests any funds or
property of the Trust, or any assets belonging to the particular Portfolio with
respect to which such Interests are issued.
Section 4.3. ACTION BY THE TRUSTEES. The Trustees shall act by majority
vote of those present at a meeting duly called (including a meeting by
telephonic or other electronic means, unless the 1940 Act requires that a
particular action be taken only at a meeting of the Trustees in person) at which
a quorum is present or by unanimous written consent of the Trustees (or by
written consent of a majority of the Trustees if the President of the Trust
determines that such exceptional circumstances exist, and are of such urgency,
as to make unanimous written consent impossible or impractical, which
determination shall be conclusive and binding on all Trustees and not otherwise
subject to challenge) without a meeting. A majority of the Trustees shall
constitute a quorum at any meeting. Meetings of the Trustees may be called
orally or in writing by the President of the Trust or by any two Trustees.
Notice of the time, date, and place of all meetings of the Trustees shall be
given to each Trustee by telephone, facsimile, electronic-mail, or other
electronic mechanism sent to his or her home or business address at least
twenty-four hours in advance of the meeting or in person at another meeting of
the Trustees or by written notice mailed to his or her home or business address
at least seventy-two hours in advance of the meeting. Notice need not be given
to any Trustee who attends the meeting without objecting to the lack of notice
or who signs a waiver of notice either before or after the meeting. Subject to
the requirements of the 1940 Act, the Trustees by majority vote may delegate to
11
<PAGE>
any Trustee or Trustees authority to approve particular matters or take
particular actions on behalf of the Trust. Any written consent or waiver may be
provided and delivered to the Trust by any means by which notice may be given to
a Trustee.
Section 4.4. PRINCIPAL TRANSACTIONS. The Trustees may, on behalf of the
Trust, buy any securities from or sell any securities to, or lend any assets of
the Trust to, any Trustee or officer of the Trust or any firm of which any such
Trustee or officer is a member acting as principal, or have any such dealings
with any investment adviser for the Trust or with any Affiliated Person of such
Person; and the Trust may employ any such Person, or firm or Company in which
such Person is an Affiliated Person, as broker, legal counsel, registrar,
investment adviser, administrator, custodian, or in any capacity upon customary
terms, subject in all cases to applicable laws, rules, and regulations and
orders of regulatory authorities.
Section 4.5. PAYMENT OF EXPENSES BY THE TRUST. The Trustees are authorized
to pay or cause to be paid out of the principal or income of the Trust or any
Portfolio, or partly out of the principal and partly out of income, and to
charge or allocate the same to, between or among such one or more of the
Portfolios, as they deem fair, all fees, taxes, and Liabilities incurred or
arising in connection with the Trust or Portfolio, or in connection with the
management thereof, including, but not limited, to the Trustees' compensation
and such expenses and charges for the services of the Trust's officers,
employees, investment adviser and manager, administrator, auditors, counsel,
custodian, and such other agents or independent contractors and such other
expenses and charges as the Trustees may deem necessary or proper to incur.
Section 4.6. TRUSTEE COMPENSATION. The Trustees as such shall be entitled
to reasonable compensation from the Trust. They may fix the amount of their
compensation. Nothing herein shall in any way prevent the employment of any
Trustee for advisory, management, administrative, legal, accounting, investment
banking, underwriting, brokerage, or investment dealer or other services and the
payment for the same by the Trust.
ARTICLE V
INVESTMENT ADVISER AND OTHER SERVICE PROVIDERS
Section 5.1. INVESTMENT ADVISER. Subject to the approval of Shareholders
as required by Article VI, Section 6.1, the Trustees may in their discretion,
from time to time, enter into an investment advisory or management contract or
contracts with respect to the Trust or any Portfolio whereby the other party or
parties to such contract or contracts shall undertake to furnish the Trustees
with 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 Trustees may in their discretion determine.
The Trustees may authorize the investment adviser to employ, from time to
time, one or more sub-advisers to perform such of the acts and services of the
investment adviser, and upon such terms and conditions, as may be agreed upon
among the Trustees, the investment adviser, and the sub-adviser. Any references
in this Agreement to the investment adviser shall be deemed to include such
sub-advisers, unless the context otherwise requires.
12
<PAGE>
Section 5.2. OTHER SERVICE CONTRACTS. The Trustees may authorize the
engagement of an principal underwriter, transfer agent, administrator,
custodian, and similar service providers.
Section 5.3. PARTIES TO CONTRACT. Any contract of the character described
in Sections 5.1 and 5.2 of this Article V may be entered into with any
corporation, firm, partnership, trust, or association, although one or more of
the Trustees or officers of the Trust may be an officer, director, trustee,
shareholder, or member of such other party to the contract.
Section 5.4. MISCELLANEOUS. The fact that (i) any of the Holders,
Trustees, or officers of the Trust is a shareholder, director, officer, partner,
trustee, employee, manager, adviser, principal underwriter or distributor, or
agent of or for any Company or of or for any parent or affiliate of any Company,
with which an advisory or administration contract, placement agent, custodian,
or other agency contract may have been or may hereafter be made, or that any
such Company, or any parent or affiliate thereof, is a Holder or has an interest
in the Trust, or that (ii) any Company with which an advisory or administration
contract or placement agent, custodian, or other agency contract may have been
or may hereafter be made also has an advisory or administration contract, or
placement agent, custodian, or other agency contract with one or more other
companies, or has other business or interests shall not affect the validity of
any such contract or disqualify any Holder, Trustee, or officer of the Trust
from voting upon or executing the same or create any liability or accountability
to the Trust or its Holders.
ARTICLE VI
HOLDERS' VOTING POWERS AND MEETING
Section 6.1. VOTING POWERS. The Holders shall have power to vote only with
respect to (1) the election of Trustees as provided in Article III, Section 3.6,
(2) the removal of a Trustee as provided in Article III, Section 3.3(d), (3) any
investment advisory contract to the extent required by the 1940 Act, (4)
termination of the Trust or a Portfolio as provided in Article X, Section 10.3,
(5) amendment of this Agreement only as provided in Article X, Section 10.7, (6)
the sale of all or substantially all the assets of the Trust or of the assets
belonging to any Portfolio, unless the primary purpose of such sale is to change
the Trust's domicile or form of organization or form of business trust; (7) the
merger or consolidation of the Trust or any Portfolio with and into another
Company or portfolio, unless (A) the primary purpose of such merger or
consolidation is to change the Trust's domicile or form of organization or form
of business trust, or (B) after giving effect to such merger or consolidation,
based on the Interests outstanding as of a date selected by the Trustees, the
Holders of the Trust or such portfolio will have a majority of the outstanding
interests of the surviving Company or Portfolio, as the case may be; and (8)
such additional matters relating to the Trust as may be required by law or as
the Trustees may consider desirable.
Until Interests are issued, the Trustees may exercise all rights of
Holders and may make any action required or permitted by law, this Agreement or
any of the Bylaws of the Trust to be taken by Holders.
13
<PAGE>
On any matter submitted to a vote of the Holders, all Interests shall be
voted together, except when required by applicable law or when the Trustees have
determined that the matter affects the interests of one or more Portfolios, then
only the Holders of all such Portfolios shall be entitled to vote thereon. The
vote necessary to approve any such matter shall be set forth in this Agreement
or in the Bylaws.
ARTICLE VII
INCREASES, DECREASES, AND REDEMPTIONS OF INTERESTS
Section 1. INCREASES. Subject to the provisions hereof and such
restrictions as the Trustees, in their sole discretion, may from time to time
adopt, each Holder may increase its investment in any Portfolio at any time
without limitation. An increase in a Holder's investment in any Portfolio shall
be reflected as an increase in the Holder's Book Capital Account balance with
respect to that Portfolio and shall be included in its Interest therein.
Section 2. DECREASES AND REDEMPTIONS. Each Holder may decrease its
investment in any Portfolio or redeem its entire Interest in any Portfolio
(I.E., completely withdraw therefrom) at any time, on such terms and conditions
as the Trustees, in their sole discretion, may from time to time determine,
subject to any applicable provisions of the 1940 Act. A decrease in or
redemption of a Holder's investment in any Portfolio shall be reflected as a
decrease in the Holder's Book Capital Account balance with respect to that
Portfolio and shall be deducted from its Interest therein. Subject to the
foregoing, the Trust shall, on appropriate and adequate notice from a Holder,
decrease or redeem the Holder's Interest for an amount (which shall be treated
as a distribution for purposes of Article VIII, Section 8.1) determined by
applying a formula adopted for such purpose by resolution of the Trustees;
provided that (a) such amount shall not exceed the smaller of (i) the decrease
in the Holder's Book Capital Account balance effected by such decrease or
redemption and (ii) the positive balance in the Holder's Book Capital Account
(determined after taking into account such adjustments as are required by
Treasury Regulation ss. 1.704-1(b)(2)(ii)(B)(2) but before reduction thereof to
reflect the distribution of such amount) and (b) if so authorized by the
Trustees, the Trust may, at any time and from time to time, (i) charge fees for
effecting any such decrease or redemption, at such rates as the Trustees in
their sole discretion may establish, and (ii) suspend such right of decrease or
redemption. The procedures for effecting decreases or redemptions shall be as
determined by the Trustees from time to time.
ARTICLE VIII
BOOK CAPITAL ACCOUNTS; NET ASSET VALUE;
ALLOCATIONS AND DISTRIBUTIONS
Section 8.1. BOOK CAPITAL ACCOUNTS. (a) A Book Capital Account shall be
maintained for each Holder of each Portfolio. With respect to each Portfolio,
each Holder's Book Capital Account (i) shall be credited with the amount(s) of
consideration paid by the Holder to purchase or increase its Interest in that
Portfolio and with the Holder's share of that Portfolio's Net Profits, (ii)
14
<PAGE>
shall be charged with the Holder's share of that Portfolio's Net Losses,
distributions to the Holder, and withholding taxes (if any), and (iii) shall
otherwise appropriately reflect transactions of that Portfolio and its Holders.
No interest shall be paid on any amount of consideration paid to the Trust to
purchase or increase Interests.
(b) The Book Capital Account balances of Holders of each Portfolio shall
be determined periodically at such time or times as the Trustees may determine.
The power and duty to make calculations necessary to determine such balances may
be delegated by the Trustees to an investment adviser, custodian, or such other
person as the Trustees may determine.
(c) Notwithstanding anything herein to the contrary, the Book Capital
Accounts and any related accounts (including without limitation tax capital
accounts and revaluation accounts) of the Holders and of any Portfolio shall at
all times during the full term of that Portfolio be determined and maintained in
accordance with the requirements of Treasury Regulation ss. 1.704-1(b)(2)(iv).
The Trustees are authorized to prescribe, in their sole discretion, such
policies for the establishment and maintenance of such accounts ("Policies") as
they, in consultation with the Trust's professional advisers, consider to be in
accordance with such requirements.
Section 8.2. NET ASSET VALUE. In making a determination of Net Asset
Value, the Trustees, without Holder approval, may alter the method of valuing
portfolio securities insofar as permitted under the 1940 Act and the rules,
regulations, and interpretations thereof promulgated or issued by the Commission
or any applicable order of the Commission. The Trustees may delegate any of
their powers and duties under this Section with respect to the valuation of
assets and liabilities.
Section 8.3. ALLOCATION OF NET PROFITS AND NET LOSSES. (a) As of the close
of business each day, the Net Profits and Net Losses of each Portfolio shall be
determined and allocated to and among the Holders of that Portfolio in
proportion to their respective Interests in that Portfolio, determined as of the
opening of business on that day.
(b) Except as otherwise provided in this Section, for each taxable year of
a Portfolio, all items of income, gain, loss, deduction, and credit that are
recognized by that Portfolio for tax purposes shall be allocated pursuant to
Treasury Regulation ss. 1.704-1(b) in a manner that equitably reflects amounts
credited or debited to the Book Capital Account of each Holder of that Portfolio
for such year. Allocations of such items also shall be made, where appropriate,
in accordance with Section 704(c) of the Code and the regulations thereunder, as
may be provided in any Policies adopted by the Trustees pursuant to Article
VIII, Section 8.1(c).
(c) Expenses of a Portfolio, if any, that are borne by any Holder of that
Portfolio in its individual capacity shall be specially allocated to the Holder.
(d) Notwithstanding anything to the contrary in the preceding paragraphs
(b) or (c), if any Holder of a Portfolio unexpectedly receives any adjustments,
allocations, or distributions described in Treasury Regulation ss.ss.
1.704-1(b)(2)(ii)(D)(4), (5), OR (6), items of income (including gross income)
and gain of that Portfolio shall be specially allocated to the Holder in an
amount and manner sufficient to eliminate the deficit balance in the Holder's
Book Capital Account (as determined in accordance with Treasury Regulation ss.
1.704-1(b)(2)(ii)(D)) created by such adjustments, allocations, or distributions
15
<PAGE>
as quickly as possible. Any special allocations of income and gain of a
Portfolio pursuant to this paragraph shall be taken into account in computing
subsequent allocations of income and gain of that Portfolio pursuant to this
Article, so that the net amount of any items of that Portfolio so allocated and
the income, gain, loss, deductions, and other items of that Portfolio allocated
to each Holder pursuant to this Article shall, to the extent possible, equal the
net amount that would have been allocated to each such Holder pursuant to this
Article if such special allocations had not been made.
Section 8.4. DISTRIBUTIONS. The Trustees may from time to time determine
to pay distributions to Holders of a Portfolio. The amount of such distributions
and the payment of them and whether they are paid in cash or in any other assets
belonging to a Portfolio shall be determined wholly in the Trustees' sole
discretion.
Section 8.5. POWER TO MODIFY ARTICLE. Notwithstanding any foregoing
provision of this Article, the Trustees may prescribe, in their sole discretion,
such other bases and times for determining, for financial reporting and/or tax
accounting purposes, (a) the Net Profits, Net Losses, taxable income, tax loss,
and/or net assets of any Portfolio (or, where appropriate in the Trustees' sole
judgment, of the Trust as a whole) and/or (b) the allocation of the Net Profits
or Net Losses and taxable income or tax loss so determined among, or the payment
of distributions to, the Holders of any Portfolio as they deem necessary or
desirable to enable the Trust or any Portfolio to comply with any provision of
the 1940 Act, the Code, any rule or regulation thereunder, or any order of
exemption issued by the Commission or any ruling issued by the Internal Revenue
Service, all as in effect now or as hereafter amended or modified.
ARTICLE IX
LIMITATION OF LIABILITY AND INDEMNIFICATION
Section 9.1. LIMITATION OF LIABILITY. A Trustee, when acting in such
capacity, shall not be personally liable to any person for any act, omission, or
obligation of the Trust or any Trustee; provided, however, that nothing
contained herein or in the Delaware Act shall protect any Trustee against any
liability to the Trust or to Holders 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 the office of Trustee
hereunder.
Section 9.2. INDEMNIFICATION OF COVERED PERSONS. Every Covered Person
shall be indemnified by the Trust to the fullest extent permitted by the
Delaware Act and other applicable law.
Section 9.3. INDEMNIFICATION OF HOLDERS. In case any Holder or former
Holder of the Trust shall be held to be personally liable solely by reason of
his being or having been a Holder of the Trust or any Portfolio and not because
of his acts or omissions or for some other reason, the Holder or former Holder
(or his heirs, executors, administrators, or other legal representatives, or, in
the case of a corporation or other entity, its corporate or general successor)
shall be entitled, out of the assets belonging to the applicable Portfolio, to
16
<PAGE>
be held harmless from and indemnified against all loss and expense arising from
such liability in accordance with the Bylaws and applicable law. The Trust, on
behalf of the affected Portfolio, shall, upon request by the Holder, assume the
defense of any claim made against the Holder for any act or obligation of that
Portfolio.
ARTICLE X
MISCELLANEOUS
Section 10.1. TRUST NOT A PARTNERSHIP, EXCEPT FOR INCOME TAX PURPOSES; TAX
MATTERS PARTNER. (a) This Agreement creates a trust and not a partnership, and
no Trustee shall have any power to bind personally either the Trust's officers
or any Holder. Notwithstanding the foregoing, it is intended that the Trust, or
each Portfolio if there is more than one Portfolio, be classified as a
partnership for income tax purposes, and the Trustees shall do all things that
they, in their sole discretion, determine are necessary to achieve that
objective, including (if they so determine) electing such classification on
Internal Revenue Form 8832. Any Trustee is hereby authorized to sign such form
on behalf of the Trust or any Portfolio, and the Trustees may delegate such
authority to any executive officer(s) of any Portfolio's investment adviser. The
Trustees, in their sole discretion and without the vote or consent of the
Holders, may amend this Agreement to ensure that this objective is achieved.
(b) The Trustees annually shall designate for each Portfolio a "Tax
Matters Partner" under Section 6231(a)(7) of the Code. A Portfolio's Tax Matters
Partner shall have all the powers and responsibilities of such position as
provided in the Code, provided it (1) shall promptly furnish the Internal
Revenue Service with information sufficient to cause each Holder in that
Portfolio to be treated as a "notice partner" as defined in Section 6231(a)(8)
of the Code, (2) shall not file any action or suit or extend any statute of
limitations relating to Portfolio tax matters without first notifying each such
Holder and obtaining the consent of Holders owning more than 50% of all
Interests in that Portfolio, and (3) shall not settle any action or suit
relating to Portfolio tax matters without first notifying all Holders in that
Portfolio and obtaining the consent of Holders owning at least 75% of all
Interests therein. Reasonable expenses incurred by the Tax Matters Partner, in
its capacity as such, will be treated as Portfolio expenses. Any Holder in a
Portfolio shall have the right to participate in any administrative proceedings
relating to the determination of partnership tax items at that Portfolio's
level.
Section 10.2. TRUSTEE'S GOOD FAITH ACTION, EXPERT ADVICE, NO BOND OR
SURETY. The exercise by the Trustees of their powers and discretion hereunder in
good faith and with reasonable care under the circumstances then prevailing
shall be binding upon everyone interested. Subject to the provisions of Article
IX hereof and to Section 10.1 of this Article X, the Trustees shall not be
liable for errors of judgment or mistakes of fact or law. The Trustees may take
advice of counsel or other experts with respect to the meaning and operation of
this Agreement, and subject to the provisions of Article IX hereof and Section
10.1 of this Article X, shall be under no liability for any act or omission in
accordance with such advice or for failing to follow such advice. The Trustees
shall not be required to give any bond as such, nor any surety if a bond is
obtained.
Section 10.3. TERMINATION OF TRUST OR PORTFOLIO. (a) The Trust or any
Portfolio may be terminated by (1) a Majority Interests Vote of the Trust or the
affected Portfolio, respectively, or (2) if there are fewer than 100 Holders of
17
<PAGE>
record of the Trust or of such terminating Portfolio, the Trustees pursuant to
written notice to the Holders of the Trust or the affected Portfolio .
(b) On termination of the Trust or any Portfolio pursuant to paragraph
(a),
(1) the Trust or that Portfolio thereafter shall carry on no
business except for the purpose of winding up its affairs,
(2) the Trustees shall proceed to wind up the affairs of the Trust
or that Portfolio, and all powers of the Trustees under this Agreement
with respect thereto shall continue until such affairs have been wound up,
including the powers to fulfill or discharge the contracts of the Trust or
that Portfolio, collect its assets, sell, convey, assign, exchange, or
otherwise dispose of all or any part of its remaining assets to one or
more persons at public or private sale for consideration that may consist
in whole or in part of cash, securities, or other property of any kind,
discharge or pay its liabilities, and do all other acts appropriate to
liquidate its business, and
(3) after paying or adequately providing for the payment of all
liabilities, and upon receipt of such releases, indemnities, and refunding
agreements as they deem necessary for their protection, the Trustees shall
distribute the remaining assets ratably among the Holders of the Trust or
that Portfolio.
(c) On completion of distribution of the remaining assets pursuant to
paragraph (b), the Trust or the affected Portfolio shall terminate and the
Trustees and the Trust shall be discharged from all further liabilities
and duties hereunder with respect thereto and the rights and interests of
all parties therein shall be canceled and discharged. On termination of
the Trust, following completion of winding up of its business, the
Trustees shall cause a Certificate of Cancellation of the Trust's
Certificate of Trust to be filed in accordance with the Delaware Act,
which Certificate may be signed by any one Trustee.
Section 10.4. SALE OF ASSETS; MERGER AND CONSOLIDATION. Subject to Article
VI, Section 6.1, the Trustees may cause (i) the Trust or one or more of its
Portfolios to the extent consistent with applicable law to sell all or
substantially all of its assets, or be merged into or consolidated with another
business trust or Company, (ii) the Interests in the Trust or any Portfolio to
be converted into beneficial interests in another business trust (or series
thereof) created pursuant to this Section 10.4 of Article X, or (iii) the
Interests to be exchanged under or pursuant to any state or federal statute to
the extent permitted by law. In all respects not governed by statute or
applicable law, the Trustees shall have power to prescribe the procedure
necessary or appropriate to accomplish a sale of assets, merger or consolidation
including the power to create one or more separate business trusts to which all
or any part of the assets, liabilities, profits or losses of the Trust may be
transferred and to provide for the conversion of Interests in the Trust or any
Portfolio into beneficial interests in such separate business trust or trusts
(or series or class thereof).
Section 10.5. FILING OF COPIES, REFERENCES, HEADINGS. The original or a
copy of this Agreement, or any amendment hereto or supplemental to this
Agreement shall be kept at the office of the Trust where it may be inspected by
18
<PAGE>
any Holder. In this Agreement or in any such amendment or supplemental
Agreement, references to this Agreement, and all expressions like "herein,"
"hereof," and "hereunder," shall be deemed to refer to this Agreement as amended
or affected by any such supplemental Agreement. All expressions like "his,"
"he," and "him," shall be deemed to include the feminine and neuter, as well as
masculine, genders. Headings are placed herein for convenience of reference only
and in case of any conflict, the text of this Agreement, rather than the
headings, shall control. This Agreement may be executed in any number of
counterparts each of which shall be deemed an original.
Section 10.6. GOVERNING LAW. The Trust and this Agreement, and the rights,
obligations and remedies of the Trustees and Holders hereunder, are to be
governed by and construed and administered according to the Delaware Act and the
other laws of the State of Delaware; provided, however, that there shall not be
applicable to the Trust, the Trustees, the Holders or this Trust Agreement (a)
the provisions of Section 3540 of Title 12 of the Delaware Code or (b) any
provisions of the laws (statutory or common) of the State of Delaware (other
than the Delaware Act) pertaining to trusts which relate to or regulate (i) the
filing with any court or governmental body or agency of trustee accounts or
schedules of trustee fees and charges, (ii) affirmative requirements to post
bonds for trustees, officers, agents, or employees of a trust, (iii) the
necessity for obtaining court or other governmental approval concerning the
acquisition, holding, or disposition of real or personal property, (iv) fees or
other sums payable to trustees, officers, agents, or employees of a trust, (v)
the allocation of receipts and expenditures to income or principal, (vi)
restrictions or limitations on the permissible nature, amount, or concentration
of trust investments or requirements relating to the titling, storage, or other
manner of holding of trust assets, or (vii) the establishment of fiduciary or
other standards or responsibilities or limitations on the indemnification, acts
or powers of trustees or other Persons, which are inconsistent with the
limitations of liabilities or authorities and powers of the Trustees or officers
of the Trust set forth or referenced in this Agreement.
The Trust shall be of the type commonly called a "business trust," and
without limiting the provisions hereof, the Trust may exercise all powers which
are ordinarily exercised by such a trust under Delaware law. The Trust
specifically reserves the right to exercise any of the powers or privileges
afforded to trusts or actions that may be engaged in by trusts under the
Delaware Act, and the absence of a specific reference herein to any such power,
privilege, or action shall not imply that the Trust may not exercise such power
or privilege or take such actions, provided, however, that the exercise of any
such power, privilege, or action shall not otherwise violate applicable law.
Section 10.7. AMENDMENTS. Except as specifically provided herein, the
Trustees may, without any Holder vote, amend this Agreement by making an
amendment, an Agreement supplemental hereto, or an amended and restated
Agreement. Any amendment submitted to Holders that the Trustees determine would
affect the Holders of less than all Portfolios shall be authorized by vote of
only the Holders of the affected Portfolio(s), and no vote shall be required of
Holders of any Portfolio that is not affected. Notwithstanding anything else
herein to the contrary, any amendment to Article IX that would have the effect
of reducing the indemnification provided thereby to Covered Persons or to
Holders or former Holders, and any repeal or amendment of this sentence shall
each require the affirmative vote of Holders owning at least two-thirds of the
19
<PAGE>
Interests entitled to vote thereon. A certification signed by a majority of the
Trustees setting forth an amendment to this Agreement and reciting that it was
duly adopted by the Holders or by the Trustees as aforesaid, or a copy of this
Agreement, as amended, executed by a majority of the Trustees, shall be
conclusive evidence of such amendment when lodged among the records of the
Trust.
Section 10.8. PROVISIONS IN CONFLICT WITH LAW. The provisions of this
Agreement are severable, and the Trustees shall determine, with the advice of
counsel, that any of such provisions is in conflict with applicable law the
conflicting provision shall be deemed never to have constituted a part of this
Agreement; provided, however, that such determination shall not affect any of
the remaining provisions of this Agreement or render invalid or improper any
action taken or omitted prior to such determination. If any provision of this
Agreement shall be held invalid or enforceable in any jurisdiction, such
invalidity or unenforceability shall attach only to such provision in such
jurisdiction and shall not in any manner affect such provisions in any other
jurisdiction or any other provision of this Agreement in any jurisdiction.
Section 10.9. HOLDERS' RIGHT TO INSPECT HOLDER LIST. One or more Persons
who together and for at least six months have been Holders of at least five
percent (5%) of the outstanding Interests of any Portfolio may present to any
officer or resident agent of the Trust a written request for a list of its
Holders. Within twenty (20) days after such request is made, the Trust shall
prepare and have available on file at its principal office a list verified under
oath by one of its officers or its transfer agent or registrar which sets forth
the name and address of each Holder and the number of Interests of that
Portfolio that the Holder holds. The rights provided for herein shall not extend
to any Person who is a beneficial owner but not also a record owner of Interests
in the Trust.
20
<PAGE>
IN WITNESS WHEREOF, the undersigned, being all of the Trustees of the
Trust, have executed this instrument this 7th day of May, 1998.
--------------------
[ ]
--------------------
[ ]
--------------------
[ ]
--------------------
[ ]
--------------------
[ ]
21
<PAGE>
SCHEDULE A
Growth Portfolio shall be divided into the following Portfolios:
Small Cap Portfolio
Value Portfolio
Date: May 7, 1998
22
BYLAWS
OF
GROWTH PORTFOLIO,
A DELAWARE BUSINESS TRUST
ADOPTED EFFECTIVE MAY 7, 1998
<PAGE>
TABLE OF CONTENTS
ARTICLE I OFFICES............................................................1
Section 1. REGISTERED OFFICE..............................................1
Section 2. OTHER OFFICES..................................................1
ARTICLE II TRUSTEES..........................................................1
Section 1. NUMBER.........................................................1
Section 2. TERM...........................................................1
Section 3. VACANCY........................................................1
Section 4. DELEGATION OF POWER............................................2
Section 5. INABILITY TO SERVE FULL TERM...................................2
Section 6. POWERS.........................................................2
Section 7. MEETINGS OF THE TRUSTEES.......................................3
Section 8. REGULAR MEETINGS...............................................3
Section 9. QUORUM.........................................................3
Section 10. ACTION WITHOUT MEETING.........................................3
Section 11. DESIGNATION, POWERS, AND NAME OF COMMITTEES....................4
Section 12. MINUTES OF COMMITTEE...........................................4
Section 13. COMPENSATION OF TRUSTEES.......................................4
ARTICLE III OFFICERS.........................................................4
Section 1. EXECUTIVE OFFICERS.............................................4
Section 2. TERM OF OFFICE.................................................5
Section 3. PRESIDENT......................................................5
Section 4. CHAIRMAN OF THE BOARD..........................................5
Section 5. OTHER OFFICERS.................................................5
Section 6. SECRETARY......................................................5
Section 7. TREASURER......................................................6
Section 8. SURETY BOND....................................................6
ARTICLE IV MEETINGS OF SHAREHOLDERS..........................................6
Section 1. PURPOSE........................................................6
Section 2. NOMINATIONS OF TRUSTEES........................................7
Section 3. ELECTION OF TRUSTEES...........................................7
Section 4. NOTICE OF MEETINGS.............................................7
Section 5. SPECIAL MEETINGS...............................................7
Section 6. NOTICE OF SPECIAL MEETING......................................7
Section 7. CONDUCT OF SPECIAL MEETING.....................................7
Section 8. QUORUM.........................................................7
Section 9. ORGANIZATION OF MEETINGS.......................................8
Section 10. VOTING STANDARD................................................8
Section 11. VOTING PROCEDURE...............................................8
Section 12. ACTION WITHOUT MEETING.........................................9
i
<PAGE>
ARTICLE V NOTICES............................................................9
Section 1. METHODS OF GIVING NOTICE.......................................9
Section 2. WRITTEN WAIVER................................................10
ARTICLE VI GENERAL PROVISIONS...............................................10
Section 1. DIVIDENDS AND DISTRIBUTIONS...................................10
Section 2. REDEMPTIONS...................................................10
Section 3. INDEMNIFICATION...............................................11
Section 4. ADVANCE PAYMENTS OF INDEMNIFIABLE EXPENSES....................11
Section 5. SEAL..........................................................11
Section 6. SEVERABILITY..................................................11
Section 7. HEADINGS......................................................11
ARTICLE VII AMENDMENTS......................................................12
Section 1. AMENDMENTS....................................................12
ii
<PAGE>
BYLAWS
OF
GROWTH PORTFOLIO,
A DELAWARE BUSINESS TRUST
Capitalized terms not specifically defined herein
shall have the meanings ascribed to them in the Trust's
Agreement and Declaration of Trust ("Agreement").
ARTICLE I
OFFICES
Section 1. REGISTERED OFFICE. The registered office of Growth Portfolio
(the "Trust") shall be in the County of New Castle, State of Delaware.
Section 2. OTHER OFFICES. The Trust may also have offices at such other
places both within and without the State of Delaware as the Trustees may from
time to time determine or the business of the Trust may require.
ARTICLE II
TRUSTEES
Section 1. NUMBER. The number of Trustees shall initially be five, and
thereafter shall be such number as shall be fixed from time to time by
resolution of the Board of Trustees; provided, however, that the number of
Trustees shall in no event be less than two nor more than twelve.
Section 2. TERM. The Trustees shall hold office during the lifetime of the
Trust, except (a) that any Trustee may resign his trusteeship or may retire by
written instrument signed by him and delivered to the other Trustees, which
shall take effect upon such delivery or upon such later date as is specified
therein; (b) that any Trustee may be removed at any time by written instrument,
signed by at least two-thirds of the number of Trustees prior to such removal,
specifying the date when such removal shall become effective; (c) that any
Trustee who has died, become physically or mentally incapacitated by reason of
disease or otherwise, or is otherwise unable to serve, may be retired by written
instrument signed by a majority of the other Trustees, specifying the date of
his retirement; and (d) that a Trustee may be removed at any meeting of the
Holders of the Trust.
Section 3. VACANCY. In case of the declination to serve, death,
resignation, retirement or removal of a Trustee, or a Trustee is otherwise
unable to serve, or an increase in the number of Trustees, a vacancy shall
occur. Whenever a vacancy in the Trustees shall occur, until such vacancy is
filled, the other Trustees shall have all the powers hereunder and the
<PAGE>
certification of the other Trustees of such vacancy shall be conclusive. In the
case of an existing vacancy, the remaining Trustees may fill such vacancy by
appointing such other person as they in their discretion shall see fit, or may
leave such vacancy unfilled or may reduce the number of Trustees to not less
than two Trustees. Such appointment shall be evidenced by a written instrument
signed by a majority of the Trustees in office or by resolution of the Trustees,
duly adopted, which shall be recorded in the minutes of a meeting of the
Trustees, whereupon the appointment shall take effect.
An appointment of a Trustee may be made by the Trustees then in office in
anticipation of a vacancy to occur by reason of retirement, resignation or
increase in number of Trustees effective at a later date, provided that said
appointment shall become effective only at or after the effective date of said
retirement, resignation or increase in number of Trustees. As soon as any
Trustee appointed pursuant to Sections 2 and 3 of Article II of these Bylaws, or
elected pursuant to Section 3 of Article IV, and the Agreement shall have
accepted this appointment in writing and agreed in writing to be bound by the
terms of the Trust Agreement, the Trust estate shall vest in the new Trustee or
Trustees, together with the continuing Trustees, without any further act or
conveyance, and he shall be deemed a Trustee hereunder.
Section 4. DELEGATION OF POWER. Any Trustee may, by power of attorney,
delegate his power for a period not exceeding six months at any one time to any
other Trustee or Trustees, provided that in no case shall less than two Trustees
personally exercise the other powers hereunder except as herein otherwise
expressly provided.
Section 5. INABILITY TO SERVE FULL TERM. The declination to serve, death,
resignation, retirement, removal, incapacity, or inability of the Trustees, or
any one of them, shall not operate to terminate the Trust or to revoke any
existing agency created pursuant to the terms of the Agreement.
Section 6. POWERS. The Trustees shall have exclusive and absolute control
over the trust property and over the business of the Trust to the same extent as
if the Trustees were the sole owners of the trust property and business in their
own right, but with such powers of delegation as may be permitted by the
Agreement. The Trustees shall have power to conduct the business of the Trust
and carry on its operations in any and all of its branches and maintain offices
both within and without the State of Delaware, in any and all states of the
United States of America, in the District of Columbia, in any and all
commonwealths, territories, dependencies, colonies, or possessions of the United
States of America, and in any foreign jurisdiction and to do all such other
things and execute all such instruments as they deem necessary, proper or
desirable in order to promote the interests of the Trust although such things
are not herein specifically mentioned. Any determination as to what is in the
interests of the Trust made by the Trustees in good faith shall be conclusive.
In construing the provisions of these Bylaws and the Agreement, the presumption
shall be in favor of a grant of power to the Trustees.
Section 7. MEETINGS OF THE TRUSTEES. The Trustees of the Trust may hold
meetings, both regular and special, either within or without the State of
Delaware.
2
<PAGE>
Section 8. REGULAR MEETINGS. Regular meetings of the Board of Trustees
shall be held each year, at such time and place as the Board of Trustees may
determine.
Section 9. NOTICE OF MEETINGS. Notice of the time, date, and place of all
meetings of the Trustees shall be given to each Trustee by telephone, facsimile,
electronic-mail, or other electronic mechanism sent to his or her home or
business address at least twenty-four hours in advance of the meeting or in
person at another meeting of the Trustees or by written notice mailed to his or
her home or business address at least seventy-two hours in advance of the
meeting.
Section 10. QUORUM. At all meetings of the Trustees, a majority of the
Trustees then in office (but in no event less than two Trustees) shall
constitute a quorum for the transaction of business and the act of a majority of
the Trustees present at any meeting at which there is a quorum shall be the act
of the Board of Trustees, except as may be otherwise specifically provided by
applicable law or by the Agreement or these Bylaws. If a quorum shall not be
present at any meeting of the Board of Trustees, the Trustees present thereat
may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
Section 11. ACTION WITHOUT MEETING. Unless otherwise restricted by the
Agreement or these Bylaws, any action required or permitted to be taken at any
meeting of the Board of Trustees or of any committee thereof may be taken
without a meeting by unanimous written consent of the Trustees or committee
members (or by written consent of a majority of the Trustees if the President of
the Trust determines that such exceptional circumstances exist, and are of such
urgency, as to make unanimous written consent impossible or impractical, which
determination shall be conclusive and binding on all Trustees and not otherwise
subject to challenge) and the writing or writings are filed with the minutes of
proceedings of the board or committee.
Section 12. DESIGNATION, POWERS, AND NAME OF COMMITTEES. The Board of
Trustees may, by resolution passed by a majority of the whole Board, designate
one or more committees, each committee to consist of two or more of the Trustees
of the Trust. The Board may designate one or more Trustee as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of such committee. Each committee, to the extent provided in the
resolution, shall have and may exercise the powers of the Board of Trustees in
the management of the business and affairs of the Trust; provided, however, that
in the absence or disqualification of any member of such committee or
committees, the member or members thereof present at any meeting and not
disqualified from voting, whether or not such members constitute a quorum, may
unanimously appoint another member of the Board of Trustees to act at the
meeting in the place of any such absent or disqualified member. Such committee
or committees shall have such name or names as may be determined from time to
time by resolution adopted by the Board of Trustees.
Section 13. MINUTES OF COMMITTEE. Each committee shall keep regular
minutes of its meetings and report the same to the Board of Trustees when
required.
3
<PAGE>
Section 14. COMPENSATION OF TRUSTEES. The Trustees as such shall be
entitled to reasonable compensation for their services as determined from time
to time by the Board of Trustees. Nothing herein shall in any way prevent the
employment of any Trustee for advisory, management, administrative, legal,
accounting, investment banking, underwriting, brokerage, or investment dealer or
other services and the payment for the same by the Trust.
ARTICLE III
OFFICERS
Section 1. EXECUTIVE OFFICERS. The initial executive officers of the Trust
shall be elected by the Board of Trustees as soon as practicable after the
organization of the Trust. The executive officers may include a Chairman of the
Board, and shall include a President, one or more Vice Presidents (the number
thereof to be determined by the Board of Trustees), a Secretary and a Treasurer.
The Chairman of the Board, if any, shall be selected from among the Trustees.
The Board of Trustees may also in its discretion appoint Assistant Vice
Presidents, Assistant Secretaries, Assistant Treasurers, and other officers,
agents and employees, who shall have such authority and perform such duties as
the Board may determine. The Board of Trustees may fill any vacancy which may
occur in any office. Any two offices, except for those of President and Vice
President, may be held by the same person, but no officer shall execute,
acknowledge or verify any instrument on behalf of the Trust in more than one
capacity, if such instrument is required by law or by these Bylaws to be
executed, acknowledged or verified by two or more officers.
Section 2. TERM OF OFFICE. Unless otherwise specifically determined by the
Board of Trustees, the officers shall serve at the pleasure of the Board of
Trustees. If the Board of Trustees in its judgment finds that the best interests
of the Trust will be served, the Board of Trustees may remove any officer of the
Trust at any time with or without cause. The Trustees may delegate this power to
the President with respect to any other officer. Such removal shall be without
prejudice to the contract rights, if any, of the person so removed. Any officer
may resign from office at any time by delivering a written resignation to the
Trustees or the President. Unless otherwise specified therein, such resignation
shall take effect upon delivery.
Section 3. PRESIDENT. The President shall be the chief executive officer
of the Trust and, subject to the Board of Trustees, shall generally manage the
business and affairs of the Trust. If there is no Chairman of the Board, or if
the Chairman of the Board has been appointed but is absent, the President shall,
if present, preside at all meetings of the Holders and the Board of Trustees.
Section 4. CHAIRMAN OF THE BOARD. The Chairman of the Board, if any, shall
preside at all meetings of the Holders and the Board of Trustees, if the
Chairman of the Board is present. The Chairman of the Board shall have such
other powers and duties as shall be determined by the Board of Trustees, and
shall undertake such other assignments as may be requested by the President.
4
<PAGE>
Section 5. OTHER OFFICERS. The Chairman of the Board or one or more Vice
Presidents shall have and exercise such powers and duties of the President in
the absence or inability to act of the President, as may be assigned to them,
respectively, by the Board of Trustees or, to the extent not so assigned, by the
President. In the absence or inability to act of the President, the powers and
duties of the President not otherwise assigned by the Board of Trustees or the
President shall devolve upon the Chairman of the Board, or in the Chairman's
absence, the Vice Presidents in the order of their election.
Section 6. SECRETARY. The Secretary shall (a) have custody of the seal of
the Trust; (b) attend meetings of the shareholders, the Board of Trustees, and
any committees of Trustees and keep the minutes of such meetings of Holders,
Board of Trustees and any committees thereof; and (c) issue all notices of the
Trust. The Secretary shall have charge of the Holder records and such other
books and papers as the Board may direct, and shall perform such other duties as
may be incidental to the office or which are assigned by the Board of Trustees.
The Secretary shall also keep or cause to be kept a Holder book, which may be
maintained by means of computer systems, containing the names, alphabetically
arranged, of all persons who are Holders, showing their places of residence, the
number and class or series of any class of shares of beneficial interest held by
them, respectively, and the dates when they became the record owners thereof,
and such book shall be open for inspection as prescribed by the laws of the
State of Delaware.
Section 7. TREASURER. The Treasurer shall have the care and custody of the
funds and securities of the Trust and shall deposit the same in the name of the
Trust in such bank or banks or other depositories, subject to withdrawal in such
manner as these Bylaws or the Board of Trustees may determine. The Treasurer
shall, if required by the Board of Trustees, give such bond for the faithful
discharge of duties in such form as the Board of Trustees may require.
Section 8. SURETY BOND. The Trustees may require any officer or agent of
the Trust to execute a bond (including, without limitation, any bond required by
the Investment Company Act of 1940, as amended ("1940 Act") and the rules and
regulations of the Securities and Exchange Commission ("Commission") to the
Trust in such sum and with such surety or sureties as the Trustees may
determine, conditioned upon the faithful performance of his or her duties to the
Trust, including responsibility for negligence and for the accounting of any of
the Trust's property, funds, or securities that may come into his or her hands.
ARTICLE IV
MEETINGS OF HOLDERS
Section 1. PURPOSE. All meetings of the Holders for the election of
Trustees shall be held at such place as may be fixed from time to time by the
Trustees, or at such other place either within or without the State of Delaware
as shall be designated from time to time by the Trustees and stated in the
notice indicating that a meeting has been called for such purpose. Meetings of
Holders may be held for any purpose determined by the Trustees and may be held
at such time and place, within or without the State of Delaware as shall be
stated in the notice of the meeting or in a duly executed waiver of notice
thereof. At all meetings of the Holders, every Holder of record entitled to vote
thereat shall be entitled to vote at such meeting either in person or by written
5
<PAGE>
proxy signed by the Holder or by his duly authorized attorney in fact. A Holder
may duly authorize such attorney in fact through written, electronic,
telephonic, computerized, facsimile, telecommunication, telex or oral
communication or by any other form of communication. Unless a proxy provides
otherwise, such proxy is not valid more than eleven months after its date. A
proxy with respect to shares held in the name of two or more persons shall be
valid if executed by any one of them unless at or prior to exercise of the proxy
the Trust receives a specific written notice to the contrary from any one of
them. A proxy purporting to be executed by or on behalf of a Holder shall be
deemed valid unless challenged at or prior to its exercise and the burden of
proving invalidity shall rest on the challenger.
Section 2. NOMINATIONS OF TRUSTEES. Nominations of individuals for
election to the Board of Trustees shall be made by the Board of Trustees or a
nominating committee of the Board of Trustees, if one has been established (the
"Nominating Committee"). Any Holder of the Trust may submit names of individuals
to be considered by the Nominating Committee or the Board of Trustees, as
applicable, provided, however, (i) that such person was a Holder of record at
the time of submission of such names and is entitled to vote at the meeting, and
(ii) that the Nominating Committee or the Board of Trustees, as applicable,
shall make the final determination of persons to be nominated.
Section 3. ELECTION OF TRUSTEES. All meetings of Holders for the purpose
of electing Trustees shall be held on such date and at such time as shall be
designated from time to time by the Trustees and stated in the notice of the
meeting, at which the Holders shall elect by a plurality vote any number of
Trustees as the notice for such meeting shall state are to be elected, and
transact such other business as may properly be brought before the meeting in
accordance with Section 1 of this Article IV.
Section 4. NOTICE OF MEETINGS. Written notice of any meeting stating the
place, date, and hour of the meeting shall be given to each Holder entitled to
vote at such meeting not less than ten days before the date of the meeting in
accordance with Article V hereof.
Section 5. SPECIAL MEETINGS. Special meetings of the Holders, for any
purpose or purposes, unless otherwise prescribed by applicable law or by the
Agreement, may be called by any Trustee; provided, however, that the Trustees
shall promptly call a meeting of the Holders solely for the purpose of removing
one or more Trustees, when requested in writing so to do by the record Holders
of not less than ten percent of the outstanding Interest in the Trust.
Section 6. NOTICE OF SPECIAL MEETING. Written notice of a special meeting
stating the place, date, and hour of the meeting and the purpose of purposes for
which the meeting is called, shall be given not less than ten days before the
date of the meeting, to each Holder entitled to vote at such meeting.
Section 7. CONDUCT OF SPECIAL MEETING. Business transacted at any special
meeting of Holders shall be limited to the purpose stated in the notice.
Section 8. QUORUM. The Holders of one-third of the Interests that are
issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the Holders
6
<PAGE>
for the transaction of business except as otherwise provided by applicable law
or by the Agreement. If, however, such quorum shall not be present or
represented at any meeting of the Holders, the vote of the Holders of a majority
of Interests cast shall have power to adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum shall be
present or represented. At such adjourned meeting, at which a quorum shall be
present or represented, any business may be transacted which might have been
transacted at the meeting as originally notified.
Section 9. ORGANIZATION OF MEETINGS.
(a) The Chairman of the Board of Trustees shall preside at each
meeting of Holders. In the absence of the Chairman of the Board, the meeting
shall be chaired by the President, or if the President shall not be present, by
a Vice President. In the absence of all such officers, the meeting shall be
chaired by a person elected for such purpose at the meeting. The Secretary of
the Trust, if present, shall act as Secretary of such meetings, or if the
Secretary is not present, an Assistant Secretary of the Trust shall so act, and
if no Assistant Secretary is present, then a person designated by the Secretary
of the Trust shall so act, and if the Secretary has not designated a person,
then the meeting shall elect a secretary for the meeting.
(b) The Board of Trustees of the Trust shall be entitled to make
such rules and regulations for the conduct of meetings of Holders as it shall
deem necessary, appropriate or convenient. Subject to such rules and regulations
of the Board of Trustees, if any, the chairman of the meeting shall have the
right and authority to prescribe such rules, regulations and procedures and to
do all such acts as, in the judgment of such chairman, are necessary,
appropriate or convenient for the proper conduct of the meeting, including,
without limitation, establishing: an agenda or order of business for the
meeting; rules and procedures for maintaining order at the meeting and the
safety of those present; limitations on participation in such meeting to Holders
of record of the Trust and their duly authorized and constituted proxies, and
such other persons as the chairman shall permit; restrictions on entry to the
meeting after the time fixed for the commencement thereof; limitations on the
time allotted to questions or comments by participants; and regulation of the
opening and closing of the polls for balloting on matters which are to be voted
on by ballot, unless and to the extent the Board of Trustees or the chairman of
the meeting determines that meetings of Holders shall not be required to be held
in accordance with the rules of parliamentary procedure.
Section 10. VOTING STANDARD. When a quorum is present at any meeting, the
vote of the Holders of a majority of the Interests cast shall decide any
question brought before such meeting, unless the question is one on which, by
express provision of applicable law, the Agreement, these Bylaws, or applicable
contract, a different vote is required, in which case such express provision
shall govern and control the decision of such question.
Section 11. VOTING PROCEDURE. Each Interest shall be entitled to vote in
proportion to its share in the Trust. On any matter submitted to a vote of the
Holders, the Interests shall be voted together, except when required by
applicable law or when the Trustees have determined that the matter affects the
interests of one or more Portfolios (or Classes), then only the Holders of such
Portfolios (or Classes) shall be entitled to vote thereon.
7
<PAGE>
Section 12. ACTION WITHOUT MEETING. Unless otherwise provided in the
Agreement or applicable law, any action required to be taken at any meeting of
Holders of the Trust, or any action which may be taken at any meeting of such
Holders, may be taken without a meeting, without prior notice and without a
vote, if a consent in writing, setting forth the action so taken, shall be
signed by the Holders of outstanding Interests having not less than the minimum
number of votes that would be necessary to authorize or take such action at a
meeting at which all Interests entitled to vote thereon were present and voted.
Prompt notice of the taking of any such action without a meeting by less than
unanimous written consent shall be given to those Holders who have not consented
in writing.
Section 13. FIXING RECORD DATE. In order that the Trustees may determine
the Holders entitled to notice of or to vote at any meeting of Holders or any
adjournment thereof, or to express consent to action in writing without a
meeting, or entitled to receive payment of any dividend or other distribution of
allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of beneficial interests or for the purpose of any
other lawful action, the Board of Trustees may fix a record date, which record
date shall not precede the date upon which the resolution fixing the record date
is adopted by the Board of Trustees, and which record date shall not be more
than ninety nor less than ten days before the date of such meeting, nor more
than ten days after the date upon which the resolution fixing the record date is
adopted by the Board of Trustees for action by Holder consent in writing without
a meeting, nor more than ninety days prior to any other action. A determination
of Holders of record entitled to notice of or to vote at a meeting of Holders
shall apply to any adjournment of the meeting; provided, however, that the Board
of Trustees may fix a new record date for the adjourned meeting.
ARTICLE V
NOTICES
Section 1. METHODS OF GIVING NOTICE. Whenever, under the provisions of
applicable law or of the Agreement or of these Bylaws, notice is required to be
given to any Trustee or Holder, it shall not, unless otherwise provided herein,
be construed to mean personal notice, but such notice may be given orally in
person, or by telephone (promptly confirmed in writing) or in writing, by mail
addressed to such Trustee or Holder, at his address as it appears on the records
of the Trust, with postage thereon prepaid, and such notice shall be deemed to
be given at the time when the same shall be deposited in the United States mail.
Notice to Trustees or members of a committee may also be given by telex,
telegram, telecopier or via overnight courier. If sent by telex or telecopier,
notice to a Trustee or member of a committee shall be deemed to be given upon
transmittal; if sent by telegram, notice to a Trustee or member of a committee
shall be deemed to be given when the telegram, so addressed, is delivered to the
telegraph company, and if sent via overnight courier, notice to a Trustee or
member of a committee shall be deemed to be given when delivered against a
receipt therefor.
Section 2. WRITTEN WAIVER. Whenever any notice is required to be given
under the provisions of applicable law or of the Agreement or of these Bylaws, a
8
<PAGE>
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.
ARTICLE VI
GENERAL PROVISIONS
Section 1. DIVIDENDS AND OTHER DISTRIBUTIONS. The Trustees may from time
to time declare and pay dividends and make other distributions with respect to
any Portfolio, or Class thereof, which may be from income, capital gains or
capital. The amount of such dividends or other distributions and the payment of
them and whether they are in cash or any other Trust Property shall be wholly in
the discretion of the Trustees.
Section 2. REDEMPTIONS. Any Holder of record of shares of a particular
Portfolio, or Class thereof, shall have the right to require the Trust to redeem
his Interests, or any portion thereof, subject to the terms and conditions set
forth in the registration statement in effect from time to time. The redemption
price may in any case or cases be paid wholly or partly in kind if the Trustees
determine that such payment is advisable in the interest of the remaining
shareholders of the Portfolio or Class thereof for which the shares are being
redeemed. Subject to the foregoing, the fair value, selection and quantity of
securities or other property so paid or delivered as all or part of the
redemption price may be determined by or under authority of the Trustees. In no
case shall the Trust be liable for any delay of any Person in transferring
securities selected for delivery as all or part of any payment in kind.
The Trustees may, at their option, and at any time, have the right to
redeem shares of any shareholder of a particular Portfolio or Class thereof in
accordance with Section 2 of this Article VII. The Trustees may refuse to
transfer or issue shares to any person to the extent that the same is necessary
to comply with applicable law or advisable to further the purposes for which the
Trust is formed.
Section 3. INDEMNIFICATION. Every person who is, or has been, a Trustee or
officer of the Trust shall be indemnified by the Trust to the fullest extent
permitted by the Delaware Business Trust Act, these Bylaws and other applicable
law.
Section 4. ADVANCE PAYMENTS OF INDEMNIFIABLE EXPENSES. To the maximum
extent permitted by the Delaware Act and other applicable law, the Trust or
applicable Portfolio may advance to a Covered Person, in connection with the
preparation and presentation of a defense to any claim, action, suit, or
proceeding, expenses for which the Covered Person would ultimately be entitled
to indemnification; provided that the Trust or applicable Portfolio has received
an undertaking by or on behalf of such Covered Person that such amount will be
paid over by him to the Trust or applicable Portfolio if it is ultimately
determined that he is not entitled to indemnification for such expenses, and
further provided that (i) such Covered Person shall have provided appropriate
security for such undertaking, (ii) the Trust is insured against losses arising
out of any such advance payments, or (iii) either a majority of the Trustees who
are not interested persons (as defined in the 1940 Act) of the Trust nor parties
to the matter, or independent legal counsel in a written opinion shall have
9
<PAGE>
determined, based upon a review of readily available facts (as opposed to a full
trial-type inquiry) that there is reason to believe that such Covered Person
will not be disqualified from indemnification for such expenses.
Section 5. SEAL. The business seal shall have inscribed thereon the name
of the business trust, the year of its organization and the word "Business Seal,
Delaware." The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or otherwise reproduced. Any officer or Trustee of the
Trust shall have authority to affix the corporate seal of the Trust to any
document requiring the same.
Section 6. SEVERABILITY. The provisions of these Bylaws are severable. If
the Board of Trustees determines, with the advice of counsel, that any provision
hereof conflicts with the 1940 Act, the regulated investment company provisions
of the Internal Revenue Code, or other applicable laws and regulations, the
conflicting provision shall be deemed never to have constituted a part of these
Bylaws; provided, however, that such determination shall not affect any of the
remaining provisions of these Bylaws or render invalid or improper any action
taken or omitted prior to such determination. If any provision hereof shall be
held invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall attach only to such provision only in such jurisdiction
and shall not affect any other provision of these Bylaws.
Section 7. HEADINGS. Headings are placed in these Bylaws for convenience
of reference only and in case of any conflict, the text of these Bylaws rather
than the headings shall control.
ARTICLE VII
AMENDMENTS
Section 1. AMENDMENTS. These Bylaws may be altered or repealed at any
regular or special meeting of the Board of Trustees without prior notice. These
Bylaws may also be altered or repealed at any special meeting of the Holders,
but only if the Board of Trustees resolves to put a proposed alteration or
repealer to the vote of the Holders and notice of such alteration or repealer is
contained in a notice of the special meeting being held for such purpose.
10
GROWTH PORTFOLIO
INVESTMENT MANAGEMENT AND ADMINISTRATION CONTRACT
BETWEEN
GROWTH PORTFOLIO
AND
A I M ADVISORS, INC.
Contract made as of _________________, 1998, between Growth Portfolio, a
Delaware business trust ("Company), and A I M Advisors, Inc., a Delaware
corporation (the "Adviser").
WHEREAS the Company is registered under the Investment Company Act of
1940, as amended ("1940 Act"), as an open-end management investment company, has
established several subtrusts with each subtrust having its own assets and
investment policies; and
WHEREAS the Company desires to retain Adviser as investment manager and
administrator to furnish certain investment advisory, portfolio management and
administration services to the Company and the Funds, and Adviser is willing to
furnish such services;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. APPOINTMENT. The Company hereby appoints Adviser as investment manager and
administrator of each Fund for the period and on the terms set forth in this
Contract. Adviser accepts such appointment and agrees to render the services
herein set forth, for the compensation herein provided.
2. DUTIES AS INVESTMENT MANAGER.
(a) Subject to the supervision of the Company's Board of Trustees
("Board"), Adviser will provide a continuous investment program for each Fund,
including investment research and management with respect to all securities and
investments and cash equivalents of the Fund. Adviser will determine from time
to time what securities and other investments will be purchased, retained or
sold by each Fund, and the brokers and dealers through whom trades will be
executed.
(b) Adviser agrees that in placing orders with brokers and dealers it will
attempt to obtain the best net results in terms of price and execution.
Consistent with this obligation Adviser may, in its discretion, purchase and
sell portfolio securities to and from brokers and dealers who sell shares of the
Funds or provide the Funds or Adviser's other clients with research, analysis,
advice and similar services. Adviser may pay to brokers and dealers, in return
for research and analysis, a higher commission or spread than may be charged by
other brokers and dealers, subject to Adviser's determining in good faith that
<PAGE>
such commission or spread is reasonable in terms either of the particular
transaction or of the overall responsibility of Adviser to the Funds and its
other clients and that the total commissions or spreads paid by each Fund will
be reasonable in relation to the benefits to the Fund over the long term. In no
instance will portfolio securities be purchased from or sold to Adviser or any
affiliated person thereof except in accordance with the federal securities laws
and the rules and regulations thereunder and any exemptive orders currently in
effect. Whenever Adviser simultaneously places orders to purchase or sell the
same security on behalf of a Fund and one or more other accounts advised by
Adviser, such orders will be allocated as to price and amount among all such
accounts in a manner believed to be equitable to each account. The Company
recognizes that in some cases this procedure may adversely affect the results
obtained for each Fund.
(c) Adviser will oversee the maintenance of all books and records with
respect to the securities transactions of the Funds, and will furnish the Board
with such periodic and special reports as the Board reasonably may request. In
compliance with the requirements of Rule 31a-3 under the 1940 Act, Adviser
hereby agrees that all records which it maintains for the Company are the
property of the Company, agrees to preserve for the periods prescribed by Rule
31a-2 under the 1940 Act any records which it maintains for the Company and
which are required to be maintained by Rule 31a-1 under the 1940 Act, and
further agrees to surrender promptly to the Company any records which it
maintains for the Company upon request by the Company.
3. DUTIES AS ADMINISTRATOR. Adviser will administer the affairs of each Fund
subject to the supervision of the Board and the following understandings:
(a) Adviser will supervise all aspects of the operations of each Fund,
including the oversight of transfer agency and custodial services, except as
hereinafter set forth; provided, however, that nothing herein contained shall be
deemed to relieve or deprive the Board of its responsibility for control of the
conduct of the affairs of the Funds.
(b) At Adviser's expense, Adviser will provide the Company and the Funds
with such corporate, administrative and clerical personnel (including officers
of the Company) and services as are reasonably deemed necessary or advisable by
the Board.
(c) Adviser will arrange, but not pay, for the periodic preparation,
updating, filing and dissemination (as applicable) of each Fund's proxy
material, tax returns and required reports with or to the Fund's shareholders,
the Securities and Exchange Commission and other appropriate federal or state
regulatory authorities.
(d) Adviser will provide the Company and the Funds with, or obtain for
them, adequate office space and all necessary office equipment and services,
including telephone service, heat, utilities, stationery supplies and similar
items.
4. FURTHER DUTIES. In all matters relating to the performance of this Contract,
Adviser will act in conformity with the Agreement and Declaration of Trust,
By-Laws and Registration Statement of the Company and with the instructions and
2
<PAGE>
directions of the Board and will comply with the requirements of the 1940 Act,
the rules thereunder, and all other applicable federal and state laws and
regulations.
5. DELEGATION OF ADVISER'S DUTIES AS INVESTMENT MANAGER AND ADMINISTRATOR. With
respect to one or more of the Funds, Adviser may enter into one or more
contracts ("Sub-Advisory or Sub-Administration Contract") with a sub-adviser or
sub-administrator in which Adviser delegates to such sub-adviser or
sub-administrator the performance of any or all of the services specified in
Paragraphs 2 and 3 of this Contract, provided that: (i) each Sub-Advisory and
Sub-Administration Contract imposes on the sub-adviser or sub-administrator
bound thereby all the duties and conditions to which Adviser is subject with
respect to the services under Paragraphs 2, 3 and 4 of this Contract; (ii) each
Sub-Advisory and Sub-Administration Contract meets all requirements of the 1940
Act and rules thereunder, and (iii) Adviser shall not enter into a Sub-Advisory
or Sub-Administration Contract unless it is approved by the Board prior to
implementation.
6. SERVICES NOT EXCLUSIVE. The services furnished by Adviser hereunder are not
to be deemed exclusive and Adviser shall be free to furnish similar services to
others so long as its services under this Contract are not impaired thereby.
Nothing in this Contract shall limit or restrict the right of any director,
officer or employee of Adviser, who may also be a Trustee, officer or employee
of the Company, to engage in any other business or to devote his or her time and
attention in part to the management or other aspects of any other business,
whether of a similar nature or a dissimilar nature.
7. EXPENSES.
(a) During the term of this Contract, each Fund will bear all expenses,
not specifically assumed by Adviser, incurred in its operations.
(b) Expenses borne by each Fund will include but not be limited to the
following: (i) all direct charges relating to the purchase and sale of portfolio
securities, including the cost (including brokerage commissions, if any) of
securities purchased or sold by the Fund and any losses incurred in connection
therewith; (ii) fees payable to and expenses incurred on behalf of the Fund by
Adviser under this Contract; (iii) investment consulting fees and related costs;
(iv) expenses of organizing the Company and the Fund; (v) expenses of preparing
filing reports and other documents with governmental and regulatory agencies;
(vi) filing fees and expenses relating to the registration and qualification of
the Fund's shares and the Company under federal and/or state securities laws and
maintaining such registrations and qualifications; (vii) costs incurred in
connection with the issuance, sale or repurchase of the Fund's shares of
beneficial interest; (viii) fees and salaries payable to the Company's Trustees
who are not parties to this Contract or interested persons of any such party
("Independent Trustees"); (ix) all expenses incurred in connection with the
Independent Trustees' services, including travel expenses; (x) taxes (including
any income or franchise taxes) and governmental fees; (xi) costs of any
liability, uncollectible items of deposit and other insurance and fidelity
bonds; (xii) any costs, expenses or losses arising out of a liability of or
3
<PAGE>
claim for damages or other relief asserted against the Company or the Fund for
violation of any law; (xiii) interest charges; (xiv) legal, accounting and
auditing expenses, including legal fees of special counsel for the Independent
Trustees; (xv) charges of custodians, transfer agents, pricing agents and other
agents; (xvi) expenses of disbursing dividends and distributions; (xvii)
expenses of setting in type, printing and mailing reports, notices and proxy
materials for existing shareholders; (xviii) any extraordinary expenses
(including fees and disbursements of counsel, costs of actions, suits or
proceedings to which the Company is a party and the expenses the Company may
incur as a result of its legal obligation to provide indemnification to its
officers, Trustees, employees and agents) incurred by the Company or the Fund;
(xix) fees, voluntary assessments and other expenses incurred in connection with
membership in investment company organizations; (xx) costs of mailing and
tabulating proxies and costs of meetings of shareholders, the Board and any
committees thereof; (xxi) the cost of investment company literature and other
publications provided by the Company to its Trustees and officers; and (xxii)
costs of mailing, stationery and communications equipment.
(c) All general expenses of the Company and joint expenses of the Funds
shall be allocated among each Fund on a basis deemed fair and equitable by
Adviser, subject to the Board's supervision.
(d) Adviser will assume the cost of any compensation for services provided
to the Company received by the officers of the Company and by the Trustees of
the Company who are not Independent Trustees.
(e) The payment or assumption by Adviser of any expense of the Company or
any Fund that Adviser is not required by this Contract to pay or assume shall
not obligate Adviser to pay or assume the same or any similar expense of the
Company or any Fund on any subsequent occasion.
8. COMPENSATION.
(a) For the services provided to a Fund under this Contract, the Company
shall pay the Adviser an annual fee, payable monthly, based upon the average
daily net assets of such Fund as forth in Appendix A attached hereto. Such
compensation shall be paid solely from the assets of such Fund.
(b) For the services provided under this Contract, each Fund as hereafter
may be established will pay to Adviser a fee in an amount to be agreed upon in a
written Appendix to this Contract executed by the Company on behalf of such Fund
and by Adviser.
(c) The fee shall be computed daily and paid monthly to Adviser on or
before the last business day of the next succeeding calendar month.
4
<PAGE>
(d) If this Contract becomes effective or terminates before the end of any
month, the fee for the period from the effective date to the end of the month or
from the beginning of such month to the date of termination, as the case may be,
shall be prorated according to the proportion which such period bears to the
full month in which such effectiveness or termination occurs.
9. LIMITATION OF LIABILITY OF ADVISER AND INDEMNIFICATION. Adviser shall not be
liable and each Fund shall indemnify Adviser and its directors, officers and
employees, for any costs or liabilities arising from any error of judgment or
mistake of law or any loss suffered by the Fund or the Company in connection
with the matters to which this Contract relates except a loss resulting from
willful misfeasance, bad faith or gross negligence on the part of Adviser in the
performance by Adviser of its duties or from reckless disregard by Adviser of
its obligations and duties under this Contract. Any person, even though also an
officer, partner, employee, or agent of Adviser, who may be or become an
officer, Trustee, employee or agent of the Company shall be deemed, when
rendering services to a Fund or the Company or acting with respect to any
business of a Fund or the Company, to be rendering such service to or acting
solely for the Fund or the Company and not as an officer, partner, employee, or
agent or one under the control or direction of Adviser even though paid by it.
10. DURATION AND TERMINATION.
(a) This Contract shall become effective upon the date hereabove written,
provided that this Contract shall not take effect with respect to any Fund
unless it has first been approved (i) by a vote of a majority of the Independent
Trustees, cast in person at a meeting called for the purpose of voting on such
approval, and (ii) by vote of a majority of that Fund's outstanding voting
securities.
(b) Unless sooner terminated as provided herein, this Contract shall
continue in effect for two years from the above written date. Thereafter, if not
terminated, with respect to each Fund this Contract shall continue automatically
for successive periods not to exceed twelve months each, provided that such
continuance is specifically approved at least annually (i) by a vote of a
majority of the Independent Trustees, cast in person at a meeting called for the
purpose of voting on such approval, and (ii) by the Board or by vote of a
majority of the outstanding voting securities of that Fund.
(c) Notwithstanding the foregoing, with respect to any Fund this Contract
may be terminated at any time, without the payment of any penalty, by vote of
the Board or by a vote of a majority of the outstanding voting securities of the
Fund on sixty days' written notice to Adviser or by Adviser at any time, without
the payment of any penalty, on sixty days' written notice to the Company.
Termination of this Contract with respect to one Fund shall not affect the
continued effectiveness of this Contract with respect to any other Fund. This
Contract will automatically terminate in the event of its assignment.
5
<PAGE>
11. AMENDMENT OF THIS CONTRACT. No provision of this Contract may be changed,
waived, discharged or terminated orally, but only by an instrument in writing
signed by the party against which enforcement of the change, waiver, discharge
or termination is sought, and no amendment of this Contract shall be effective
until approved by vote of a majority of the Fund's outstanding voting
securities, when required by the 1940 Act.
12. GOVERNING LAW. This Contract shall be construed in accordance with the laws
of the State of Delaware (without regard to Delaware conflict or choice of law
provisions) and the 1940 Act. To the extent that the applicable laws of the
State of Delaware conflict with the applicable provisions of the 1940 Act, the
latter shall control.
13. LICENSE AGREEMENT. The Company shall have the non-exclusive right to use
the name "AIM" to designate any current or future series of shares only so long
as A I M Advisors, Inc. serves as investment manager or adviser to the Company
with respect to such series of shares.
14. LIMITATION OF SHAREHOLDER LIABILITY. It is expressly agreed that the
obligations of the Company hereunder shall not be binding upon any of the
Trustees, shareholders, nominees, officers, agents or employees of the Company
personally, but shall only bind the assets and property of the Funds, as
provided in the Company's Agreement and Declaration of Trust. The execution and
delivery of this Contract have been authorized by the Trustees of the Company
and shareholders of the Funds, and this Contract has been executed and delivered
by an authorized officer of the Company acting as such; neither such
authorization by such Trustees and shareholders nor such execution and delivery
by such officer shall be deemed to have been made by any of them individually or
to impose any liability on any of them personally, but shall bind only the
assets and property of the Funds, as provided in the Company's Agreement and
Declaration of Trust.
15. MISCELLANEOUS. The captions in this Contract are included for convenience
of reference only and in no way define or limit any of the provisions hereof or
otherwise affect their construction or effect. If any provision of this Contract
shall be held or made invalid by a court decision, statute, rule or otherwise,
the remainder of this Contract shall not be affected thereby. This Contract
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective successors. As used in this Contract, the terms "majority of
the outstanding voting securities," "interested person," "assignment," "broker,"
"dealer," "investment adviser," "national securities exchange," "net assets,"
"prospectus," "sale," "sell" and "security" shall have the same meaning as such
terms have in the 1940 Act, subject to such exemption as may be granted by the
Securities and Exchange Commission by any rule, regulation or order. Where the
effect of a requirement of the 1940 Act reflected in any provision of this
Contract is made less restrictive by a rule, regulation or order of the
Securities and Exchange Commission, whether of special or general application,
such provision shall be deemed to incorporate the effect of such rule,
regulation or order.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their officers designated as of the day and year first above
written.
6
<PAGE>
Attest: GROWTH PORTFOLIO
By:_____________________________ By:_____________________________
Name: Michael A. Silver Name: Helge K. Lee
Title: Assistant Secretary Title: Vice President and Secretary
Attest: A I M ADVISORS, INC.
By: _____________________________ By: _____________________________
Name: Name:
Title: Title:
7
<PAGE>
APPENDIX A
TO
INVESTMENT MANAGEMENT AND ADMINISTRATION CONTRACT
OF
GROWTH PORTFOLIO
The Company shall pay the Adviser, out of the assets of a Fund, as full
compensation for all services rendered and all facilities furnished hereunder, a
management fee for such Fund set forth below. Such fee shall be calculated by
applying the following annual rates to the average daily net assets of such Fund
for the calendar year computed in the manner used for the determination of the
net asset value of shares of such Fund.
SMALL CAP PORTFOLIO, VALUE PORTFOLIO
NET ASSETS ANNUAL RATE
- ---------- -----------
First $ 500 million......................................... .475%
Next $ 500 million.......................................... .45%
Next $ 500 million.......................................... .425%
On amounts thereafter....................................... .40%
GROWTH PORTFOLIO
SUB-ADVISORY AND SUB-ADMINISTRATION CONTRACT
BETWEEN
A I M ADVISORS, INC.
AND
INVESCO (NY), INC.
Contract made as of May 29, 1998, between A I M Advisors, Inc., a Delaware
corporation ("Adviser"), and INVESCO (NY), INC., a California corporation
("Sub-Adviser").
WHEREAS Adviser has entered into an Investment Management and
Administration Contract with Growth Portfolio ("Company"), an open-end
management investment company registered under the Investment Company Act of
1940, as amended ("1940 Act"), which has established several subtrusts with each
subtrust having its own assets and investment policies; and
WHEREAS Adviser desires to retain Sub-Adviser as sub-adviser and
sub-administrator to furnish certain advisory and administrative services to the
Funds, and Sub-Adviser is willing to furnish such services;
NOW THEREFORE, in consideration of the promises and the mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. APPOINTMENT. Adviser hereby appoints Sub-Adviser as sub-adviser and
sub-administrator of each Fund for the period and on the terms set forth in this
Contract. Sub-Adviser accepts such appointment and agrees to render the services
herein set forth, for the compensation herein provided.
2. DUTIES AS SUB-ADVISER.
(a) Subject to the supervision of the Company's Board of Trustees
("Board") and Adviser, the Sub-Adviser will provide a continuous investment
program for each Fund, including investment research and management, with
respect to all securities and investments and cash equivalents of the Fund. The
Sub-Adviser will determine from time to time what securities and other
investments will be purchased, retained or sold by each Fund, and the brokers
and dealers through whom trades will be executed.
(b) The Sub-Adviser agrees that, in placing orders with brokers and
dealers, it will attempt to obtain the best net result in terms of price and
execution. Consistent with this obligation, the Sub-Adviser may, in its
discretion, purchase and sell portfolio securities from and to brokers and
dealers who sell shares of the Funds or provide the Funds, Adviser's other
clients, or Sub-Adviser's other clients with research, analysis, advice and
similar services. The Sub-Adviser may pay to brokers and dealers, in return for
such research and analysis, a higher commission or spread than may be charged by
<PAGE>
other brokers and dealers, subject to the Sub-Adviser determining in good faith
that such commission or spread is reasonable in terms either of the particular
transaction or of the overall responsibility of the Adviser and the Sub-Adviser
to the Funds and their other clients and that the total commissions or spreads
paid by each Fund will be reasonable in relation to the benefits to the Fund
over the long term. In no instance will portfolio securities be purchased from
or sold to the Sub-Adviser, or any affiliated person thereof, except in
accordance with the federal securities laws and the rules and regulations
thereunder and any exemptive orders currently in effect. Whenever the
Sub-Adviser simultaneously places orders to purchase or sell the same security
on behalf of a Fund and one or more other accounts advised by the Sub-Adviser,
such orders will be allocated as to price and amount among all such accounts in
a manner believed to be equitable to each account.
(c) The Sub-Adviser will maintain all books and records with respect to
the securities transactions of the Funds, and will furnish the Board and Adviser
with such periodic and special reports as the Board or Adviser reasonably may
request. In compliance with the requirements of Rule 31a-3 under the 1940 Act,
the Sub-Adviser hereby agrees that all records which it maintains for the
Company are the property of the Company, agrees to preserve for the periods
prescribed by Rule 31a-2 under the 1940 Act any records which it maintains for
the Company and which are required to be maintained by Rule 31a-1 under the 1940
Act, and further agrees to surrender promptly to the Company any records which
it maintains for the Company upon request by the Company.
3. DUTIES AS SUB-ADMINISTRATOR. Sub-Adviser will administer the affairs of each
Fund subject to the supervision of the Company's Board of Trustees ("Board"),
the Adviser and the following understandings:
(a) Sub-Adviser will supervise all aspects of the operations of each Fund,
including the oversight of transfer agency and custodial services except as
hereinafter set forth; provided, however, that nothing herein contained shall be
deemed to relieve or deprive the Board of its responsibility for control of the
conduct of the affairs of the Funds.
(b) At Sub-Adviser's expense, Sub-Adviser will provide the Company and the
Funds with such corporate, administrative and clerical personnel (including
officers of the Company) and services as are reasonably deemed necessary or
advisable by the Board.
(c) Sub-Adviser will arrange, but not pay, for the periodic preparation,
updating, filing and dissemination (as applicable) of each Fund's proxy
material, tax returns and required reports with or to the Fund's shareholders,
the Securities and Exchange Commission and other appropriate federal or state
regulatory authorities.
(d) Sub-Adviser will provide the Company and the Funds with, or obtain for
them, adequate office space and all necessary office equipment and services,
including telephone service, heat, utilities, stationery supplies and similar
items.
2
<PAGE>
4. FURTHER DUTIES. In all matters relating to the performance of this Contract,
Sub-Adviser will act in conformity with the Agreement and Declaration of Trust,
By-Laws and Registration Statement of the Company and with the instructions and
directions of the Board and will comply with the requirements of the 1940 Act,
the rules thereunder, and all other applicable federal and state laws and
regulations.
5. SERVICES NOT EXCLUSIVE. The services furnished by Sub-Adviser hereunder are
not to be deemed exclusive and Sub-Adviser shall be free to furnish similar
services to others so long as its services under this Contract are not impaired
thereby. Nothing in this Contract shall limit or restrict the right of any
director, officer or employee of Sub-Adviser, who may also be a Trustee, officer
or employee of the Company, to engage in any other business or to devote his or
her time and attention in part to the management or other aspects of any other
business, whether of a similar nature or a dissimilar nature.
6. EXPENSES.
(a) During the term of this Contract, each Fund will bear all expenses,
not specifically assumed by Sub-Adviser, incurred in its operations.
(b) Expenses borne by each Fund will include but not be limited to the
following: (i) all direct charges relating to the purchase and sale of portfolio
securities, including the cost (including brokerage commissions, if any) of
securities purchased or sold by the Fund and any losses incurred in connection
therewith; (ii) fees payable to and expenses incurred on behalf of the Fund by
Sub-Adviser under this Contract; (iii) investment consulting fees and related
costs; (iv) expenses of organizing the Company and the Fund; (v) expenses of
preparing and filing reports and other documents with governmental and
regulatory agencies; (vi) filing fees and expenses relating to the registration
and qualification of the Fund's shares and the Company under federal and/or
state securities laws and maintaining such registrations and qualifications;
(vii) costs incurred in connection with the issuance, sale or repurchase of the
Fund's shares of beneficial interest; (viii) fees and salaries payable to the
Company's Trustees who are not parties to this Contract or interested persons of
any such party ("Independent Trustees"); (ix) all expenses incurred in
connection with the Independent Trustees' services, including travel expenses;
(x) taxes (including any income or franchise taxes) and governmental fees; (xi)
costs of any liability, uncollectible items of deposit and other insurance and
fidelity bonds; (xii) any costs, expenses or losses arising out of a liability
of or claim for damages or other relief asserted against the Company or the Fund
for violation of any law; (xiii) interest charges; (xiv) legal, accounting and
auditing expenses, including legal fees of special counsel for the Independent
Trustees; (xv) charges of custodians, transfer agents, pricing agents and other
agents; (xvi) expenses of disbursing dividends and distributions; (xvii)
expenses of setting in type, printing and mailing reports, notices and proxy
materials for existing shareholders; (xviii) any extraordinary expenses
(including fees and disbursements of counsel, costs of actions, suits or
proceedings to which the Company is a party and the expenses the Company may
incur as a result of its legal obligation to provide indemnification to its
3
<PAGE>
officers, Trustees, employees and agents) incurred by the Company; (xix) fees,
voluntary assessments and other expenses incurred in connection with membership
in investment company organizations; (xx) costs of mailing and tabulating
proxies and costs of meetings of shareholders, the Board and any committees
thereof; (xxi) the cost of investment company literature and other publications
provided by the Company to its Trustees and officers; and (xxii) costs of
mailing, stationery and communications equipment.
(c) Sub-Adviser will assume the cost of any compensation for services
provided to the Company received by the officers of the Company and by the
Trustees of the Company who are not Independent Trustees.
(d) The payment or assumption by Sub-Adviser of any expense of the Company
or any Fund that Sub-Adviser is not required by this Contract to pay or assume
shall not obligate Sub-Adviser to pay or assume the same or any similar expense
of the Company or any Fund on any subsequent occasion.
7. COMPENSATION.
(a) For the services provided to a Fund under this Contract, Adviser will
pay Sub-Adviser a fee, computed weekly and paid monthly, as set forth in
Appendix A hereto.
(b) For the services provided under this Contract to each Fund as
hereafter may be established, Adviser will pay to Sub-Adviser a fee in an amount
to be agreed upon in a written Appendix to this Contract executed by Adviser and
by Sub-Adviser.
(c) The fee shall be computed weekly and paid monthly to Sub-Adviser on or
before the last business day of the next succeeding calendar month.
(d) If this Contract becomes effective or terminates before the end of any
month, the fee for the period from the effective date to the end of the month or
from the beginning of such month to the date of termination, as the case may be,
shall be prorated according to the proportion which such period bears to the
full month in which such effectiveness or termination occurs.
8. LIMITATION OF LIABILITY OF SUB-ADVISER AND INDEMNIFICATION. Sub-Adviser shall
not be liable for any costs or liabilities arising from any error of judgment or
mistake of law or any loss suffered by the Fund or the Company in connection
with the matters to which this Contract relates except a loss resulting from
willful misfeasance, bad faith or gross negligence on the part of Sub-Adviser in
the performance by Sub-Adviser of its duties or from reckless disregard by
Sub-Adviser of its obligations and duties under this Contract. Any person, even
though also an officer, partner, employee, or agent of Sub-Adviser, who may be
or become a Trustee, officer, employee or agent of the Company, shall be deemed,
when rendering services to a Fund or the Company or acting with respect to any
4
<PAGE>
business of a Fund or the Company to be rendering such service to or acting
solely for the Fund or the Company and not as an officer, partner, employee, or
agent or one under the control or direction of Sub-Adviser even though paid by
it.
9. DURATION AND TERMINATION.
(a) This Contract shall become effective upon the date hereabove written,
provided that this Contract shall not take effect with respect to any Fund
unless it has first been approved (i) by a vote of a majority of the Independent
Trustees, cast in person at a meeting called for the purpose of voting on such
approval, and (ii) by vote of a majority of that Fund's outstanding voting
securities.
(b) Unless sooner terminated as provided herein, this Contract shall
continue in effect for two years from the above written date. Thereafter, if not
terminated, with respect to each Fund, this Contract shall continue
automatically for successive periods not to exceed twelve months each, provided
that such continuance is specifically approved at least annually (i) by a vote
of a majority of the Independent Trustees, cast in person at a meeting called
for the purpose of voting on such approval, and (ii) by the Board or by vote of
a majority of the outstanding voting securities of that Fund.
(c) Notwithstanding the foregoing, with respect to any Fund this Contract
may be terminated at any time, without the payment of any penalty, by vote of
the Board or by a vote of a majority of the outstanding voting securities of the
Fund on sixty days' written notice to Sub-Adviser or by Sub-Adviser at any time,
without the payment of any penalty, on sixty days' written notice to the
Company. Termination of this Contract with respect to one Fund shall not affect
the continued effectiveness of this Contract with respect to any other Fund.
This Contract will automatically terminate in the event of its assignment.
10. AMENDMENT. No provision of this Contract may be changed, waived, discharged
or terminated orally, but only by an instrument in writing signed by the party
against which enforcement of the change, waiver, discharge or termination is
sought, and no amendment of this Contract shall be effective until approved by
vote of a majority of the Fund's outstanding voting securities, when required by
the 1940 Act.
11. GOVERNING LAW. This Contract shall be construed in accordance with the laws
of the State of Delaware (without regard to Delaware conflict or choice of law
provisions) and the 1940 Act. To the extent that the applicable laws of the
State of Delaware conflict with the applicable provisions of the 1940 Act, the
latter shall control.
12. MISCELLANEOUS. The captions in this Contract are included for convenience
of reference only and in no way define or delimit any of the provisions hereof
or otherwise affect their construction or effect. If any provision of this
Contract shall be held or made invalid by a court decision, statute, rule or
otherwise, the remainder of this Contract shall not be affected thereby. This
Contract shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors. As used in this Contract, the terms
"majority of the outstanding voting securities," "interested person,"
5
<PAGE>
"assignment," "broker," "dealer," "investment adviser," "national securities
exchange," "net assets," "prospectus," "sale," "sell" and "security" shall have
the same meaning as such terms have in the 1940 Act, subject to such exemption
as may be granted by the Securities and Exchange Commission by any rule,
regulation or order. Where the effect of a requirement of the 1940 Act reflected
in any provision of this Contract is made less restrictive by a rule, regulation
or order of the Securities and Exchange Commission, whether of special or
general application, such provision shall be deemed to incorporate the effect of
such rule, regulation or order.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their officers designated as of the day and year first above
written.
AIM ADVISORS, INC.
Attest: _____________________ By: ____________________
Name:
Title:
INVESCO (NY), INC.
Attest: _____________________ By: ____________________
Michael A. Silver Name: Helge K. Lee
Title: Chief Legal and Compliance Officer
and Secretary
<PAGE>
APPENDIX A
TO
SUB-ADVISORY AND SUB-ADMINISTRATION CONTRACT
SMALL CAP PORTFOLIO, VALUE PORTFOLIO
NET ASSETS ANNUAL RATE
- ---------- -----------
First $ 500 million......................................... 0.29%
Next $ 500 million.......................................... 0.28%
Next $ 500 million.......................................... 0.27%
On amounts thereafter....................................... 0.26%
May 29, 1998
Mr. Scott Corrick
State Street Bank and Trust Company
225 Franklin Street
Boston, Massachusetts 02110
Dear Scott:
We are writing to inform you about the proposed reorganization of Growth
Portfolio. (the "Company") into a newly organized Delaware business trust (the
"Trust"). In connection with this transaction, which is scheduled to close on
May 29, 1998, it is anticipated that each series of the Company listed on
Schedule A to this letter (each an "Old Fund") will transfer all of its assets
to a corresponding series of the same name (each a "New Fund") in exchange
solely for shares of beneficial interest in such New Fund and such New Fund's
assumption of such Old Fund's liabilities.
Consistent with the "Effective Period, Termination and Amendment"
provision in Section 14 of the Custodian Contract of August 1, 1995, as amended
from time to time (the "Contract"), between the Company and State Street Bank
and Trust Company, the Company hereby requests that, as of the close of business
on May 29, 1998, you act under the terms of the Contract, including the fee
schedule relating thereto, as Custodian for each New Fund, which shall be deemed
to have succeeded to the corresponding Old Fund's obligations, rights, and
duties under the Contract.
The Company hereby further requests that you agree that the obligations of
the Trust under the Contract shall not be binding upon any of the Trust's
trustees, shareholders, nominees, officers, agents, or employees of the Trust
personally, but shall be binding only upon the assets and property of the New
Fund or New Funds to which such obligations relate.
Please indicate your acceptance of the foregoing by executing two copies
of this Letter Agreement, returning one copy to the Company and retaining one
for your records.
Sincerely,
Growth Portfolio
By: /s/ Helge K. Lee
-----------------
Helge K. Lee
Vice President and Secretary
<PAGE>
Acknowledged and Accepted:
State Street Bank and Trust Company
By: /s/ Ronald E. Logue
------------------------------------
Name: Ronald E. Logue
Title: Executive Vice President
<PAGE>
SCHEDULE A
- -------------------------------------
GROWTH PORTFOLIO
- -------------------------------------
Small Cap Portfolio
- -------------------------------------
Value Portfolio
GT Global Investor Services, Inc. ("GT Services")
Attn: Earle A. Malm II
California Plaza
2121 N. California Boulevard
Suite 450
Walnut Creek, CA 94596
Re: Transfer Agency Agreement for Growth Portfolio (the "Company")
Dear Earle:
We are writing to inform you about the proposed reorganization of Growth
Portfolio (the "Company") into a newly organized Delaware business trust, Growth
Portfolio (the "Trust"). In connection with this transaction, which is scheduled
to close on May 29, 1998, it is anticipated that each series of the Company
listed on Schedule A to this letter (each an "Old Fund") will transfer all of
its assets to the corresponding series listed on Schedule A (each a "New Fund")
in exchange solely for shares of beneficial interest in such New Fund and such
New Fund's assumption of such Old Fund's liabilities.
Consistent with the "Amendments" provision in Section XXII of the Transfer
Agency Contract of October 18, 1995, (the "Contract"), between the Company and
GT Global Investor Services, Inc., the Company hereby requests that, as of the
close of business on May 29, 1998, you act under the terms of the Contract,
including the fee schedule relating thereto, as Transfer Agent for each New
Fund, which shall be deemed to have succeeded to the corresponding Old Fund's
obligations, rights, and duties under the Contract.
The Company hereby further requests that you agree that the obligations of
the Trust under the Contract shall not be binding upon any of the Trust's
trustees, shareholders, nominees, officers, agents, or employees of the Trust
personally, but shall be binding only upon the assets and property of the New
Fund or New Funds to which such obligations relate.
Please indicate your acceptance of the foregoing by executing two copies
of this Letter Agreement, returning one copy to the Company and retaining one
for your records.
Sincerely,
GROWTH PORTFOLIO
--------------------------
William J. Guilfoyle
President
<PAGE>
Accepted by GT Global Investor Services, Inc.
- ------------------------------
Earle A. Malm II
Chief Operating Officer
<PAGE>
SCHEDULE A
- ----------------------------------------------------------------------------
GROWTH PORTFOLIO GROWTH PORTFOLIO
- ----------------------------------------------------------------------------
Small Cap Growth Portfolio Small Cap Portfolio
- ----------------------------------------------------------------------------
Value Portfolio Value Portfolio
Coopers & Lybrand L.L.P.
Coopers
& Lybrand a professional services firm
CONSENT OF INDEPENDENT ACCOUNTANTS
To the Board of Trustees of Growth Portfolio:
Small Cap Portfolio
Value Portfolio
We consent to the inclusion in Post Effective Amendment No. 4 to the
Registration Statement of Growth Portfolio on Form N-1A of our reports dated
February 17, 1998 on our audit of the financial statements and supplementary
data of the above referenced Portfolios which is included in the Annual Reports
to Shareholders for the year ended December 31, 1997 which is included in the
Post Effective Amendment to the Registration Statement.
We also consent to the reference to our Firm under the caption "Financial
Statements."
/s/ COOPERS & LYBRAND L.L.P.
----------------------------
COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
June 18, 1998
