EXHIBIT 6(a)
DISTRIBUTION AGREEMENT
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AGREEMENT made the 30th day of August, 1996 by and between NEW ENGLAND
ZENITH FUND, a Massachusetts business trust (the "Fund"), and NEW ENGLAND
SECURITIES CORPORATION, a Massachusetts corporation (the "Distributor").
W I T N E S S E T H:
In consideration of the covenants hereinafter contained the Fund and the
Distributor agree as follows:
1. Distributor. The Fund hereby appoints the Distributor as general
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distributor of shares of beneficial interest ("Series shares") of the Fund's
Xxxxx Equity Growth Series, Back Bay Advisors Bond Income Series, Back Bay
Advisors Managed Series, Back Bay Advisors Money Market Series, Capital Growth
Series, Draycott International Equity Series, Xxxxxx Xxxxxx Avanti Growth
Series, Xxxxxx Xxxxxx Balanced Series, Xxxxxx Xxxxxx Small Cap Series, Salomon
Brothers Strategic Bond Opportunities Series, Salomon Brothers U.S. Government
Series, Xxxxx Venture Value Series, Westpeak Stock Index Series and Westpeak
Growth and Income Series (individually, each a "Series") during the term of this
Agreement. The Fund 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 Fund.
2. Sales. The Distributor shall be under no obligation to effectuate any
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particular amount of sales of Series shares or to promote or make sales except
to the extent the Distributor deems advisable.
3. Net Asset Value Per Share. All subscriptions and sales of Series
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shares by the Distributor hereunder shall be at net asset value per share in
accordance with the provisions of the Agreement and Declaration of Trust and by-
laws and the current prospectus of the Fund. No commission or other
compensation for selling or obtaining subscriptions for Series shares shall be
paid by the Fund or charged as a part of the subscription or selling price on
any such sale or subscription.
4. Fund Issuance of Series Shares. The delivery of Series shares shall be
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made promptly by a credit to a shareholder's open account for the applicable
Series. The Fund reserves the right (a) to issue Series shares at any time
directly to the shareholders of the particular Series as a share dividend or
share split, (b) to issue to such shareholders shares of the particular Series,
or rights to subscribe to shares of such Series, as all or part of any dividend
that may be distributed to shareholders of such Series or as all or part of any
optional or alternative dividend that may be distributed to shareholders of such
Series and (c) to sell Series shares in accordance with the current applicable
prospectus of the Fund.
5. Repurchase. The Distributor shall act as agent for the Fund in
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connection with the repurchase of Series shares by the Fund to the extent and
upon the terms and conditions set forth in the current applicable prospectus of
the Fund, and the Fund agrees to reimburse the Distributor, from time to time
upon demand, for any reasonable expenses incurred in connection with such
repurchases.
6. Undertaking Regarding Sales. The Distributor shall use reasonable
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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 Section 5 hereof and shall not take "long" or
"short" positions in Series shares contrary to the agreement and declaration of
trust or by-laws of the Fund. Series shares shall be issued by the Fund, after
payment therefor has been credited to the account of such Series.
7. Compliance. The Distributor shall conform to the Rules of Fair
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Practice of the National Association of Securities Dealers, Inc., and any
applicable laws relating to the sale of securities 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 National Association of Securities Dealers, Inc. and such other
regulatory authorities as may be required, of any sales literature relating to
the Fund and intended for distribution to prospective investors. The
Distributor also agrees to furnish to the Fund sufficient copies of any
agreements or plans it intends to use in connection with any sales of Series
shares in adequate time for the Fund to file and clear them with the proper
authorities before they are put in use (which the Fund agrees to use its best
efforts to do as expeditiously as reasonably possible), and not to use them
until so filed and cleared.
8. Registration and Qualification of Series Shares. The Fund agrees to
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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 Fund 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 Fund shall advise the
Distributor promptly of (a) any action of the Securities and Exchange Commission
or any authorities of any state or territory, of which it may be advised,
affecting registration or qualification of the Fund or the Series shares, or
rights to offer the 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 registration statement or prospectus of the Fund in order to make the
statements therein not misleading.
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9. Distributor Independent Contractor. The Distributor shall be an
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independent contractor and neither the Distributor nor any of its officers or
employees as such is or shall be an employee of the Fund. 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.
10. Interests in and of Distributor. It is understood that any of the
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shareholders, trustees, officers, employees and agents of the Fund may be a
shareholder, director, trustee, 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 Fund; and
that the existence of any such dual interest shall not affect the validity
hereof or of any transactions hereunder except as otherwise provided in the
agreement and declaration of trust or by-laws of the Fund and the articles of
organization or by-laws of the Distributor, or by specific provision of
applicable law.
11. Words "New England" and Logo. New England Life Insurance Company, the
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parent of the Distributor, has a proprietary interest in the words "New England"
and the ship logos, both of which may be used by the Fund only with the consent
of the Distributor, which is authorized by New England Life Insurance Company to
give such consent as provided herein. The Distributor consents to the use by
the Fund of the name "New England Zenith Fund" or any other name embodying the
words "New England" and of New England Life Insurance Company's ship logos, 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 Fund
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 Fund at any time or in any place or for any purpose or
under any conditions except as in this section provided. The foregoing
authorization by the Distributor as agent of New England Life Insurance Company
to the Fund to use said words and ship logos as part of a business or name is
not exclusive of the rights of the Distributor itself to use, or to authorize
others to use, the same; the Fund acknowledges and agrees that as between the
Distributor and the Fund, the Distributor has the exclusive right so to use, or
authorize others to use, said words and logos, and the Fund 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 and logos). Without limiting the generality of the
foregoing, the Fund agrees that, upon any termination of this Agreement by
either party or upon the violation of any of its provisions by the Fund, the
Fund 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 Fund so as to eliminate all reference, if any, to the
words "New England" and will not thereafter transact any business in a name
containing the words "New England" in any form or combination whatsoever, or
designate itself as the same entity as or successor to an entity of such name,
or
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otherwise use the words "New England" or any other reference to the
Distributor. Such covenants on the part of the Fund shall be binding upon it,
its trustees, officers, shareholders and creditors and all other persons
claiming under or through it.
12. Effective Date and Termination. This Agreement shall become effective
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as of the date of its execution, and
(a) Unless otherwise terminated, this Agreement shall continue in effect
with respect to the shares of each Series so long as such continuation
is specifically approved at least annually (i) by the Board of
Trustees of the Fund or by the vote of a majority of the votes which
may be cast by shareholders of that Series and (ii) by a vote of a
majority of the Board of Trustees of the Fund who are not interested
persons of the Distributor or the Fund, cash in person at a meeting
called for the purpose of voting on such approval.
(b) This Agreement may at any time be terminated with respect to the
shares of any Series on sixty days' notice to the Distributor either
by vote of a majority of the Fund's Board of Trustees then in office
or by the vote of a majority of the votes which may be cast by
shareholders of that Series.
(c) This Agreement shall automatically terminate in the event of its
assignment.
(d) This Agreement may be terminated by the Distributor on ninety days'
written notice to the Fund.
Termination of this Agreement pursuant to this section shall be without
payment of any penalty.
13. Definitions. For purposes of this Agreement, the following
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definitions shall apply:
(a) The "vote of a majority of the votes which may be cast by shareholders
of a Series" means (1) 67% or more of the votes of a 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 such 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 such 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.
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14. Amendment. This Agreement may be amended at any time with respect to
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the shares of any Series 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 Fund or by vote of a majority of the votes which may be cast by
shareholders of such Series and (ii) by a vote of a majority of the Board of
Trustees of the Fund who are not interested persons of the Distributor or the
Fund cast in person at a meeting called for the purpose of voting on such
approval.
15. Applicable Law and Liabilities. This Agreement shall be governed by
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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.
16. Limited Recourse. The Distributor hereby acknowledges that the Fund's
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obligations hereunder with respect to the shares of any Series are binding only
on the assets and property belonging to such Series.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
NEW ENGLAND ZENITH FUND
By ___________________________
NEW ENGLAND SECURITIES
CORPORATION
By ___________________________
A copy of the Agreement and Declaration of Trust establishing New England
Zenith Fund is on file with the Secretary of State of The Commonwealth of
Massachusetts and notice is hereby given that this Agreement is executed with
respect to the Fund on behalf of the Fund by officers of the Fund 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
individually but are binding only upon the assets and property belonging to the
Fund.
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