ADVISORY AGREEMENT
(Xxxxx Equity Growth Series)
AGREEMENT made this 1st day of May, 1996 by and between
NEW ENGLAND ZENITH
FUND, a Massachusetts business trust (the "Fund") with
respect to its Xxxxx Equity Growth Series
(the "Series"), and TNE ADVISERS, INC., a Massachusetts
corporation (the "Manager").
WITNESSETH:
WHEREAS, the Fund and the Manager wish to enter into an
agreement setting forth the
terms upon which the Manager (or certain other parties
acting pursuant to delegation from the
Manager) will perform certain services for the Series;
NOW THEREFORE, in consideration of the premises and
covenants hereinafter contained,
the parties agree as follows:
1.(a) The Fund hereby employs the Manager to furnish
the Fund with Portfolio
Management Services (as defined in Section 2 hereof)
and Administrative Services (as
defined in Section 3 hereof), subject to the authority
of the Manager to delegate any or all
of its responsibilities hereunder to other parties as
provided in Sections 1(b) and (c) hereof.
The Manager hereby accepts such employment and agrees,
at its own expense, to furnish
such services (either directly or pursuant to
delegation to other parties as permitted by
Sections 1(b) and (c) hereof) and to assume the
obligations herein set forth, for the
compensation herein provided. The Manager shall,
unless otherwise expressly provided or
authorized, have no authority to act for or represent
the Fund in any way or otherwise be
deemed an agent of the Fund.
(b) The Manager may delegate any or all of its
responsibilities hereunder with respect
to the provision of Portfolio Management Services (and
assumption of related expenses) to
one or more other parties (each such party, a "Sub-
Adviser"), pursuant in each case to a
written agreement with such Sub-Adviser that meets the
requirements of Section 15 of the
Investment Company Act of 1940 and the rules thereunder
(the "1940 Act") applicable to
contracts for service as investment adviser of a
registered investment company (including
without limitation the requirements for approval by the
trustees of the Fund and the
shareholders of the Series), subject, however, to such
exemptions as may be granted by the
Securities and Exchange Commission. Any Sub-Adviser
may (but need not) be affiliated
with the Manager. If different Sub-Advisers are
engaged to provide Portfolio Management
Services with respect to different segments of the
portfolio of the Series, the Manager shall
determine, in the manner described in the prospectus of
the Series from time to time in effect,
what portion of the assets belonging to the Series
shall be managed by each Sub-Adviser.
(c) The Manager may delegate any or all of its
responsibilities hereunder with respect
to the provision of Administrative Services to one or
more other parties (each such party, an
"Administrator") selected by the Manager. Any
Administrator may (but need not) be
affiliated with the Manager.
2. As used in this Agreement, "Portfolio Management
Services" means management of
the investment and reinvestment of the assets belonging to
the Series, consisting specifically of the
following:
(a) obtaining and evaluating such economic,
statistical and financial data and
information and undertaking such additional investment
research as shall be necessary or
advisable for the management of the investment and
reinvestment of the assets belonging to
the Series in accordance with the Series' investment
objectives and policies;
(b) taking such steps as are necessary to implement
the investment policies of the
Series by purchasing and selling of securities,
including the placing of orders for such
purchase and sale; and
(c) regularly reporting to the Board of Trustees of
the Fund with respect to the
implementation of the investment policies of the
Series.
3. As used in this Agreement, "Administrative Services"
means the provision to the Fund,
by or at the expense of the Manager, of the following:
(a) office space in such place or places as may be
agreed upon from time to time by
the Fund and the Manager, and all necessary office
supplies, facilities and equipment;
(b) necessary executive and other personnel for
managing the affairs of the Series,
including personnel to perform clerical, bookkeeping,
accounting, stenographic and other
office functions (exclusive of those related to and to
be performed under contract for
custodial, transfer, dividend and plan agency services
by the entity or entities selected to
perform such services;
(c) compensation, if any, of trustees of the Fund
who are directors, officers or
employees of the Manager, any Sub-Adviser or any
Administrator or of any affiliated person
(other than a registered investment company) of the
Manager, any Sub-Adviser or any
Administrator;
(d) all services, other than services of counsel,
required in connection with the
preparation of registration statements and
prospectuses, including amendments and revisions
thereto, all annual, semiannual and periodic reports,
and notices and proxy solicitation
material furnished to shareholders of the Fund or
regulatory authorities, to the extent that any
such materials relate to the business of the Series, to
the shareholders thereof or otherwise
to the Series, the Series to be treated for these
purposes as a separate legal entity and fund;
and
(e) supervision and oversight of the Portfolio
Management Services provided by each
Sub-Adviser, and oversight of all matters relating to
compliance by the Fund with applicable
laws and with the Series' investment policies,
restrictions and guidelines, if the Manager has
delegated to one or more Sub-Advisers any or all of its
responsibilities hereunder with
respect to the provision of Portfolio Management
Services.
4. Nothing in section 3 hereof shall require the
Manager to bear, or to reimburse the Fund
for:
(a) any of the costs of printing and mailing the
items referred to in sub-section (d) of
section 3;
(b) any of the costs of preparing, printing and
distributing sales literature;
(c) compensation of trustees of the Fund who are
not directors, officers or employees
of the Manager, any Sub-Adviser or any Administrator or
of any affiliated person (other than
a registered investment company) of the Manager, any
Sub-Adviser or any Administrator;
(d) registration, filing and other fees in
connection with requirements of regulatory
authorities;
(e) the charges and expenses of any entity
appointed by the Fund for custodial, paying
agent, shareholder servicing and plan agent services;
(f) charges and expenses of independent accountants
retained by the Fund;
(g) charges and expenses of any transfer agents and
registrars appointed by the Fund;
(h) brokers' commissions and issue and transfer
taxes chargeable to the Fund in
connection with securities transactions to which the
Fund is a party;
(i) taxes and fees payable by the Fund to federal,
state or other governmental agencies;
(j) any cost of certificates representing shares of
the Fund;
(k) legal fees and expenses in connection with the
affairs of the Fund including
registering and qualifying its shares with Federal and
State regulatory authorities;
(l) expenses of meetings of shareholders and
trustees of the Fund; and
(m) interest, including interest on borrowings by
the Fund.
5. All activities undertaken by the Manager or any Sub-
Adviser or Administrator pursuant
to this Agreement shall at all times be subject to the
supervision and control of the Board of Trustees
of the Fund, any duly constituted committee thereof or any
officer of the Fund acting pursuant to like
authority.
6. The services to be provided by the Manager and any
Sub-Adviser or Administrator
hereunder are not to be deemed exclusive and the Manager and
any Sub-Adviser or Administrator
shall be free to render similar services to others, so long
as its services hereunder are not impaired
thereby.
7. As full compensation for all services rendered,
facilities furnished and expenses borne
by the Manager hereunder, the Fund shall pay the Manager
compensation at the annual rate of 0.75%
of the Series' average daily net assets. Such compensation
shall be payable monthly in arrears or at
such other intervals, not less frequently than quarterly, as
the Board of Trustees of the Fund may
from time to time determine and specify in writing to the
Manager. The Manager hereby
acknowledges that the Fund's obligation to pay such
compensation is binding only on the assets and
property belonging to the Series.
8. If the total of all ordinary business expenses of
the Fund as a whole (including
investment advisory fees but excluding taxes and portfolio
brokerage commissions) for any fiscal
year exceeds the lowest applicable percentage of average net
assets or income limitations prescribed
by any state in which shares of the Series are qualified for
sale, the Manager shall pay such excess.
Solely for purposes of applying such limitations in
accordance with the foregoing sentence, the
Series and the Fund shall each be deemed to be a separate
fund subject to such limitations. Should
the applicable state limitation provisions fail to specify
how the average net assets of the Fund or
belonging to the Series are to be calculated, that figure
shall be calculated by reference to the average
daily net assets of the Fund or the Series, as the case may
be.
9. It is understood that any of the shareholders,
trustees, officers, employees and agents
of the Fund may be a shareholder, director, officer,
employee or agent of, or be otherwise interested
in, the Manager, any affiliated person of the Manager, any
organization in which the Manager may
have an interest or any organization which may have an
interest in the Manager; that the Manager,
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 of the Fund, the
articles of organization of the Manager or specific
provisions of applicable law.
10. This Agreement shall become effective as of the
date of its execution, and
(a) unless otherwise terminated, this Agreement
shall continue in effect for two years
from the date of execution, and from year to year
thereafter so long as such continuance is
specifically approved at least annually (i) by the
Board of Trustees of the Fund or by vote
of a majority of the outstanding voting securities of
the Series, and (ii) by vote of a majority
of the trustees of the Fund who are not interested
persons of the Fund or the Manager, 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' written notice to the
Manager either by vote of the Board of Trustees of the
Fund or by vote of a majority of the
outstanding voting securities of the Series;
(c) this Agreement shall automatically terminate in
the event of its assignment;
(d) this Agreement may be terminated by the Manager
on ninety days' written notice
to the Fund;
(e) if New England Securities Corporation, the
Fund's principal underwriter, requires
the Fund or the Series to change its name so as to
eliminate all references to the words "New
England" or the letters "TNE" pursuant to the
provisions of the Fund's Distribution
Agreement relating to the Series with said principal
underwriter, this Agreement shall
automatically terminate at the time of such change
unless the continuance of this Agreement
after such change shall have been specifically approved
by vote of a majority of the
outstanding voting securities of the Series and by vote
of a majority of the trustees of the
Fund who are not interested persons of the Fund or the
Manager, cast in person at a meeting
called for the purpose of voting on such approval.
Termination of this Agreement pursuant to this section
10 shall be without the payment of
any penalty.
11. This Agreement may be amended at any time by
mutual consent of the parties, provided
that such consent on the part of the Fund shall have been
approved by vote of a majority of the
outstanding voting securities of the Series and by vote of a
majority of the trustees of the Fund who
are not interested persons of the Fund or the Manager, cast
in person at a meeting called for the
purpose of voting on such approval.
12. For the purpose of this Agreement, the terms
"vote of a majority of the outstanding
voting securities," "interested person," "affiliated person"
and "assignment" shall have their
respective meanings defined in the 1940 Act, subject,
however, to such exemptions as may be
granted by the Securities and Exchange Commission under the
1940 Act. References in this
Agreement to any assets, property or liabilities "belonging
to" the Series shall have the meaning
defined in the Fund's agreement and declaration of trust as
amended from time to time.
13. In the absence of willful misfeasance, bad faith
or gross negligence on the part of the
Manager, or reckless disregard of its obligations and duties
hereunder, the Manager shall not be
subject to any liability to the Fund, to any shareholder of
the Fund or to any other person, firm or
organization, for any act or omission in the course of, or
connected with, rendering services
hereunder.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement on the day and
year first above written.
NEW ENGLAND ZENITH FUND,
on behalf of its Xxxxx Equity Growth Series
By __________________________________
TNE ADVISERS, INC.
By __________________________________
NOTICE
A copy of the Agreement and Declaration of Trust
establishing New England Zenith Fund
(the "Fund") 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 Fund's Xxxxx Equity Growth Series
(the "Series") 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
Series.
