EXHIBIT 1.1
DISTRIBUTION AGREEMENT
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AGREEMENT made as of the 28th day of April, 1999 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 each series of shares of beneficial interest (each, a "Series")
of the Fund 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 a 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 then-current prospectus and statement of additional information
("Prospectus") of the Series. 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
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be 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 Series, 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 and other applicable rules of the National Association of Securities
Dealers, Inc. and NASD Regulation, 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 ("SEC") 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.
9. Distributor Independent Contractor. The Distributor shall be an
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independent contractor. 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
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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, an
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indirect parent company of the Distributor, has a proprietary interest in the
words "New England," "New England Financial" and the ship and NEF logos, any 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 or NEF 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 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 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 stated above 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
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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, cast 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.
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.
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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 /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Vice President
NEW ENGLAND SECURITIES
CORPORATION
By /s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
Vice President and Secretary
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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