EXHIBIT e(3)
NEW ENGLAND [NAME] FUND
FORM OF
DISTRIBUTION AGREEMENT
AGREEMENT made this ____th of February, 1999 by and between NEW ENGLAND
FUNDS TRUST III, a Massachusetts business trust (the "Trust"), and NEW ENGLAND
FUNDS, L.P., a Delaware limited partnership (the "Distributor").
W I T N E S S E T H:
WHEREAS, this Agreement has been approved by the Trustees of the Trust
in contemplation of the transfer by the Distributor of its rights to receive the
Class [ ] Distribution Fee (as defined in the Class [ ] Distribution and Service
Plan attached hereto as Exhibit A) and/or contingent deferred sales charges to a
financing party in order to raise funds to cover distribution expenditures;
WHEREAS, the Trustees of the Trust recognize the importance to the
Trust of the Distributor being able to obtain financing with which to pay
commissions on Class [ ] shares at the time of sale;
WHEREAS, the Trustees of the Trust acknowledge that by providing
financing to the Distributor the financing party enables the Distributor to
provide valuable services to the Series (as defined below); and
WHEREAS, the Trustees of the Trust, in the context of considering the
best interests of the Series and its shareholders at the time of and in
preparation for any vote, consent or other action that the Trustees of the Trust
may from time to time take relating to the continued receipt by the Distributor
(and/or the financing party) of the Distribution Fee, intend to consider the
effect on the Distributor and any financing party of any such vote, consent or
action.
NOW, THEREFORE, in consideration of the premises and covenants
hereinafter contained, the Trust and the Distributor agree as follows:
1. Distributor. The Trust hereby appoints the Distributor as general
distributor of shares of beneficial interest ("Series shares") of the
Trust's NEW ENGLAND [NAME] FUND series (the "Series") during the term
of this Agreement. The Trust reserves the right, however, to refuse at
any time or times to sell any Series shares hereunder for any reason
deemed adequate by the Board of Trustees of the Trust.
2. Sale and Payment. Under this agreement, the following provisions shall
apply with respect to the sale of and payment for Series shares:
(a) The Distributor shall have the right, as principal, to
purchase Series shares from the Trust at their net asset value
and to sell such shares to the public against orders therefor
at the applicable public offering price, as defined in Section
4 hereof. The Distributor shall also have the right, as
principal, to sell shares to dealers against orders therefor
at the public offering price less a concession determined by
the Distributor.
(b) Prior to the time of delivery of any shares by the Trust
to, or on the order of, the Distributor, the Distributor shall
pay or cause to be paid to the Trust or to its order an amount
in Boston or New York clearing house funds equal to the
applicable net asset value of such shares. The Distributor
shall retain so much of any sales charge or underwriting
discount as is not allowed by it as a concession to dealers.
3. Fees. For its services as general distributor of the Class [ ] Series
shares, the Trust shall cause the Series to pay to the Distributor (or
its designee or transferee) in addition to the sales charge, if any,
referred to in Section 4 below, the Class [ ] Distribution Fee at the
rate and upon the terms and conditions set forth in the Class [ ]
Distribution and Service Plan attached as Exhibit A hereto, and as
amended from time to time, and the Distributor shall also be entitled
to receive any contingent deferred sales charges that may be payable
upon redemption or repurchase of Class [ ] Series shares. The Class [ ]
Distribution Fee shall be accrued daily and paid monthly to the
Distributor (or, at its direction, to its designee or transferee) as
soon as practicable after the end of the calendar month in which it
accrues, but in any event within five business days following the last
day of the month. So long as this agreement and the Class [ ]
Distribution and Service Plan have not been terminated in accordance
with their respective terms, the Series' obligation to pay the Class
[ ] Distribution Fee to the Distributor shall be absolute and
unconditional and shall not be subject to any dispute, offset,
counterclaim or defense whatsoever (it being understood that nothing in
this sentence shall be deemed a waiver by the Trust or the Series of
its right separately to pursue any claims it may have against the
Distributor and to enforce such claims against any assets (other than
its rights to be paid the Class [ ] Distribution Fee and to be paid
contingent deferred sales charges with respect to Class [ ] Series
shares) of the Distributor).
4. Public Offering Price. The public offering price shall be the net asset
value of Series shares, plus any applicable sales charge, all as set
forth in the current prospectus and statement of additional information
("prospectus") of the Trust relating to the Series shares. In no event
shall the public offering price exceed 1000/935 of such net asset
value, and in no event shall any applicable sales charge or
underwriting discount exceed 6.5% of the public offering price. The net
asset value of Series shares shall be determined in accordance with the
provisions of the agreement and declaration of trust and by-laws of the
Trust and the current prospectus of the Trust relating to the Series
shares.
5. Trust Issuance of Series Shares. The delivery of Series shares shall be
made promptly by a credit to a shareholder's open account for the
Series or by delivery of a share certificate. The Trust reserves the
right (a) to issue Series shares at any time directly to the
shareholders of the Series as a stock dividend or stock split, (b) to
issue to such shareholders shares of the Series, or rights to subscribe
to shares of the Series, as all or part of any dividend that may be
distributed to shareholders of the Series or as all or part of any
optional or alternative dividend that may be distributed to
shareholders of the Series, and (c) to sell Series shares in accordance
with the current applicable prospectus of the Trust relating to the
Series shares.
6. Redemption or Repurchase. The Distributor shall act as agent for the
Trust in connection with the redemption or repurchase of Series shares
by the Trust to the extent and upon the terms and conditions set forth
in the current applicable prospectus of the Trust relating to the
Series shares, and the Trust agrees to reimburse the Distributor, from
time to time upon demand, for any reasonable expenses incurred in
connection with such redemptions or repurchases. The Trust will remit
to the Distributor any contingent deferred sales charges imposed on
redemptions or repurchases of Series shares (other than Class [ ]
shares) upon the terms and conditions set forth in the then current
prospectus of the Trust. The Trust will also remit to the Distributor
(or its designee or transferee), in addition to the Class [ ]
Distribution Fee, any contingent deferred sales charges imposed on
redemptions or repurchases of Class [ ] shares, in accordance with the
Remittance Agreement attached hereto as Exhibit B.
7. Undertaking Regarding Sales. The Distributor shall use reasonable
efforts to sell Series shares but does not agree hereby to sell any
specific number of Series shares and shall be free to act as
distributor of the shares of other investment companies. Series shares
will be sold by the Distributor only against orders therefor. The
Distributor shall not purchase Series shares from anyone except in
accordance with Sections 2 and 6 and shall not take "long" or "short"
positions in Series shares contrary to the agreement and declaration of
trust or by-laws of the Trust.
8. Compliance. The Distributor shall conform to the Rules of Fair Practice
of the NASD and the sale of securities laws of any jurisdiction in
which it sells, directly or indirectly, any Series shares. The
Distributor agrees to make timely filings, with the Securities and
Exchange Commission in Washington, D.C. (the "SEC"), the NASD and such
other regulatory authorities as may be required, of any sales
literature relating to the Series and intended for distribution to
prospective investors. The Distributor also agrees to furnish to the
Trust sufficient copies of any agreements or plans it intends to use in
connection with any sales of Series shares in adequate time for the
Trust to file and clear them with the proper authorities before they
are put in use (which the Trust agrees to use its best efforts to do as
expeditiously as reasonably possible), and not to use them until so
filed and cleared.
9. Registration and Qualification of Series Shares. The Trust agrees to
execute such papers and to do such acts and things as shall from time
to time be reasonably requested by the Distributor for the purpose of
qualifying and maintaining qualification of the Series shares for sale
under the so-called Blue Sky Laws of any state or for maintaining the
registration of the Trust and of the Series shares under the federal
Securities Act of 1933 and the federal Investment Company Act of 1940
(the "1940 Act"), to the end that there will be available for sale from
time to time such number of Series shares as the Distributor may
reasonably be expected to sell. The Trust shall advise the Distributor
promptly of (a) any action of the SEC or any authorities of any state
or territory, of which it may be advised, affecting registration or
qualification of the Trust or the Series shares, or rights to offer
Series shares for sale, and (b) the happening of any event which makes
untrue any statement or which requires the making of any change in the
Trust's registration statement or its prospectus relating to the Series
shares in order to make the statements therein not misleading.
10. Distributor Independent Contractor. The Distributor shall be an
independent contractor and neither the Distributor nor any of its
officers or employees as such is or shall be an employee of the Trust.
The Distributor is responsible for its own conduct and the employment,
control and conduct of its agents and employees and for injury to such
agents or employees or to others through its agents or employees. The
Distributor assumes full responsibility for its agents and employees
under applicable statutes and agrees to pay all employer taxes
thereunder.
11. Expenses Paid by Distributor. While the Distributor continues to act as
agent of the Trust to obtain subscriptions for and to sell Series
shares, the Distributor shall pay the following:
(a) all expenses of printing (exclusive of typesetting) and
distributing any prospectus for use in offering Series shares
for sale, and all other copies of any such prospectus used by
the Distributor, and
(b) all other expenses of advertising and of preparing,
printing and distributing all other literature or material for
use in connection with offering Series shares for sale.
12. Interests in and of Distributor. It is understood that any of the
shareholders, trustees, officers, employees and agents of the Trust may
be a shareholder, director, officer, employee or agent of, or be
otherwise interested in, the Distributor, any affiliated person of the
Distributor, any organization in which the Distributor may have an
interest or any organization which may have an interest in the
Distributor; that the Distributor, any such affiliated person or any
such organization may have an interest in the Trust; and that the
existence of any such dual interest shall not affect the validity
hereof or of any transaction hereunder except as otherwise provided in
the agreement and declaration of trust or by-laws of the Trust, in the
limited partnership agreement of the Distributor or by specific
provision of applicable law.
13. Words "New England" and Letters "TNE". The Distributor and/or its
parent organization and Nvest, L.P. ("Nvest"), retain proprietary
rights in the words "New England" and the letters "TNE", which may be
used by the Trust and the Series only with the consent of the
Distributor, which is authorized by Nvest to give such consent as
provided herein. The Distributor consents to the use by the Series of
the name "New England [NAME] Fund" or any other name embodying the
words "New England" or the letters "TNE", in such forms as the
Distributor shall in writing approve, but only on condition and so long
as (i) this Agreement shall remain in full force and (ii) the Trust
shall fully perform, fulfill and comply with all provisions of this
Agreement expressed herein to be performed, fulfilled or complied with
by it. No such name shall be used by the Trust or the Series at any
time or in any place or for any purposes or under any conditions except
as in this section provided. The foregoing authorization by the
Distributor as agent of Nvest to the Trust and the Series to use said
words or letters as part of a business or name is not exclusive of the
right of the Distributor itself to use, or to authorize others to use,
the same; the Trust acknowledges and agrees that as between the
Distributor and the Trust and the Series, the Distributor has the
exclusive right so to use, or authorize others to use, said words and
letters, and the Trust agrees to take such action as may reasonably be
requested by the Distributor to give full effect to the provisions of
this section (including, without limitation, consenting to such use of
said words or letters). Without limiting the generality of the
foregoing, the Trust agrees that, upon any termination of this
Agreement by either party or upon the violation of any of its
provisions by the Trust, the Trust will, at the request of the
Distributor made within six months after the Distributor has knowledge
of such termination or violation, use its best efforts to change the
name of the Trust and the Series so as to eliminate all reference, if
any, to the words "New England" or the letters "TNE" and will not
thereafter transact any business in a name containing the words "New
England" or the letters "TNE" in any form or combination whatsoever, or
designate itself as the same entity as or successor to any entity of
such name, or otherwise use the words "New England" or the letters
"TNE" or any other reference to the Distributor. Such covenants on the
part of the Trust and the Series shall be binding upon it, its
trustees, officers, shareholders, creditors and all other persons
claiming under or through it.
14. Effective Date and Termination. This Agreement shall become effective
as of the date of its execution, and
(a) Unless otherwise terminated, this Agreement shall continue
in effect with respect to the shares of the Series so long as
such continuation is specifically approved at least annually
(i) by the Board of Trustees of the Trust or by the vote of a
majority of the votes which may be cast by shareholders of the
Series and (ii) by a vote of a majority of the Board of
Trustees of the Trust who are not interested persons of the
Distributor or the Trust, cast in person at a meeting called
for the purpose of voting on such approval.
(b) This Agreement may at any time be terminated on sixty
days' notice to the Distributor either by vote of a majority
of the Trust's Board of Trustees then in office or by the vote
of a majority of the votes which may be cast by shareholders
of the Series.
(c) This Agreement shall automatically terminate in the event
of its assignment (excluding for this purpose any assignment
of rights to payment described in the recitals and in Section
19 of the Agreement which are hereby ratified and approved).
(d) This Agreement may be terminated by the Distributor on
ninety days' written notice to the Trust.
Termination of this Agreement pursuant to this section shall be without payment
of any penalty.
15. Definitions. For purposes of this Agreement, the following definitions
shall apply:
(a) The "vote of a majority of the votes which may be cast by
shareholders of the Series" means (1) 67% or more of the votes
of the Series present (in person or by proxy) and entitled to
vote at such meeting, if the holders of more than 50% of the
outstanding shares of the Series entitled to vote at such
meeting are present; or (2) the vote of the holders of more
than 50% of the outstanding shares of the Series entitled to
vote at such meeting, whichever is less.
(b) The terms "affiliated person," "interested person" and
"assignment" shall have their respective meanings as defined
in the 1940 Act subject, however, to such exemptions as may be
granted by the SEC under the 1940 Act.
16. Amendment. This Agreement may be amended at any time by mutual consent
of the parties, provided that such consent on the part of the Series
shall be approved (i) by the Board of Trustees of the Trust or by vote
of a majority of the votes which may be cast by shareholders of the
Series and (ii) by a vote of a majority of the Board of Trustees of the
Trust who are not interested persons of the Distributor or the Trust
cast in person at a meeting called for the purpose of voting on such
approval.
17. Applicable Law and Liabilities. This Agreement shall be governed by and
construed in accordance with the laws of The Commonwealth of
Massachusetts. All sales hereunder are to be made, and title to the
Series shares shall pass, in Boston, Massachusetts.
18. Limited Recourse. The Distributor hereby acknowledges that the Trust's
obligations hereunder with respect to the shares of the Series are
binding only on the assets and property belonging to the Series.
19. Payments to Distributor's Transferees. The Distributor may transfer its
rights to payments hereunder with respect to Class [ ] shares (but not
its obligations hereunder) in order to raise funds to cover
distribution expenditures, and any such transfer shall be effective
upon written notice from the Distributor to the Trust. In connection
with the foregoing, the Series is authorized to pay all or a part of
the Distribution Fee and/or contingent deferred sales charges in
respect of Class [ ] shares directly to such transferee as directed by
the Distributor.
20. Liquidation etc. As long as the Class [ ] Distribution and Service Plan
is in effect, the Series shall not change the manner in which the
Distribution Fee is computed (except as may be required by a change in
applicable law after the date hereof) or adopt a plan of liquidation
without the consent of the Distributor (or any designee or transferee
of the Distributor's rights to receive payment hereunder in respect of
Class [ ] shares) except in circumstances where a surviving entity or
transferee of the Series' assets adopts the Class [ ] Distribution and
Service Plan and assumes the obligations of the Series to make payments
to the Distributor (or its transferee) hereunder in respect of Class
[ ] shares.
21. "Distributor's Shares" etc. The Trust, on behalf of the Series, agrees
that it will not pay any portion of the Class [ ] Distribution Fee
which is calculated by reference to the "Distributor's Shares" (nor
shall it pay a Distribution Fee calculated by reference to Class [ ]
shares ("Other Class [ ] Shares") other than the Distributor's Shares
at a rate exceeding 0.75% per annum of the net assets attributable to
Other Class [ ] Shares) to any person other than the Distributor (or
its designee or transferee) without the written consent of the
Distributor. "Distributor's Shares" shall mean (i) Class [ ] shares of
the Series that were sold by the Distributor, plus (ii) Class [ ]
shares of the Series issued in connection with the exchange, for Class
[ ] shares of the Series, of Class [ ] shares of another fund in the
New England fund group that were sold by the Distributor, plus (iii)
Class [ ] shares of the Series issued in connection with the exchange,
for Class [ ] shares of the Series, of Class [ ] shares of another fund
in the New England fund group issued in respect of the automatic
reinvestment of dividends or capital gain distributions in respect of
Class [ ] shares of such other fund that were sold by the Distributor,
plus (iv) Class [ ] shares of the Series issued in respect of the
automatic reinvestment of dividends or capital gain distributions in
respect of Class [ ] shares of the Series described in clauses (i),
(ii) and (iii). To the extent permitted under the 1940 Act, the terms
of this Section 21 shall survive the termination of this Agreement.
22. Limitation on Reduction of Class [ ] Distribution Fee. The Trust, on
behalf of the Series, agrees that it will not reduce the Distribution
Fee in respect of Series' assets attributable to Class [ ] shares below
the annual rate of 0.75% unless it has ceased (and not resumed) paying
all "service fees" (within the meaning of Section 26 of the Rules of
Fair Practice of the National Association of Securities Dealers, Inc.
or any successor provision thereto) to the Distributor, to any
affiliate of the Distributor and to any other person in circumstances
where substantially all of the services and functions relating to the
distribution of Class [ ] Series shares have been delegated to, or are
being performed by, the Distributor or an affiliate of the Distributor.
To the extent permitted under the 1940 Act, the terms of this Section
22 shall survive the termination of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
NEW ENGLAND FUNDS TRUST III, NEW ENGLAND FUNDS, L.P.
on behalf of its New England [NAME] By: NEF Corporation, its general
series partner
By: By:
Name: Name:
Title: Title:
A copy of the Agreement and Declaration of Trust establishing New
England Funds Trust III (the "Trust") is on file with the Secretary of The
Commonwealth of Massachusetts, and notice is hereby given that this Agreement is
executed with respect to the Trust's New England [NAME] Fund series (the
"Series") on behalf of the Trust by officers of the Trust as officers and not
individually and that the obligations of or arising out of this Agreement are
not binding upon any of the trustees, officers or shareholders of the Trust
individually but are binding only upon the assets and property of the Series.
