UNDERWRITING AGREEMENT
THIS AGREEMENT is made as of July 1, 2006 by and between PFPC
DISTRIBUTORS, INC., a Massachusetts corporation ("PFPC Distributors"), and NEW
ALTERNATIVES FUND, INC., a New York corporation (the "Fund").
WITNESSETH:
WHEREAS, the Fund is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act"),
and is currently offering units of beneficial interest (such units of all series
are hereinafter called the "Shares") which are registered with the Securities
and Exchange Commission (the "SEC") pursuant to the Fund's Registration
Statement on Form N-1A (the "Registration Statement"); and
WHEREAS, the Fund wishes to retain PFPC Distributors to serve as
distributor for the Fund to provide for the sale and distribution of the Shares
of the Fund and for such additional classes or series as the Fund may issue, and
PFPC Distributors wishes to furnish such services.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. Definitions. As Used in this Agreement:
(a) "1933 Act" means the Securities Act of 1933, as amended.
(b) "1934 Act" means the Securities Exchange Act of 1934, as amended.
(c) "Authorized Person" means any officer of the Fund and any other
person duly authorized by the Fund's Board of Directors or Trustees
to give Oral Instructions and Written Instructions on behalf of the
Fund. An Authorized Person's scope of authority may be limited by
setting forth such limitation in a written document signed by both
parties hereto.
1
(d) "NASD" means the National Association of Securities Dealers, Inc.
(e) "Oral Instructions" mean oral instructions received by PFPC
Distributors from an Authorized Person or from a person reasonably
believed by PFPC Distributors to be an Authorized Person. PFPC
Distributors may, in its sole discretion in each separate instance,
consider and rely upon instructions it receives from an Authorized
Person via electronic mail as Oral Instructions.
(f) "Registration Statement" means any Registration Statement and any
Prospectus and any Statement of Additional Information relating to
the Fund filed with the SEC and any amendments or supplements
thereto at any time filed with the SEC.
(g) "Securities Laws" mean the 1933 Act, the 1934 Act, and the 0000 Xxx.
(h) "Written Instructions" mean (i) written instructions signed by an
Authorized Person and received by PFPC Distributors or (ii) trade
instructions transmitted (and received by PFPC Distributors) by
means of an electronic transaction reporting system access to which
requires use of a password or other authorized identifier. The
instructions may be delivered by hand, mail, tested telegram, cable,
telex or facsimile sending device.
2. Appointment. The Fund hereby appoints PFPC Distributors to serve as the
distributor of its Shares in accordance with the terms set forth in this
Agreement. PFPC Distributors accepts such appointment and agrees to
furnish such services. The Fund understands that PFPC Distributors is now,
and may in the future be, the distributor of the shares of several
investment companies or series (collectively, the "Investment Entities"),
including Investment Entities having investment objectives similar to
those of the Fund. The Fund further understands that investors and
potential investors in the Fund may invest in shares of such other
Investment Entities. The Fund agrees that PFPC Distributors' duties to
such Investment Entities shall not be deemed in conflict with its duties
to the Fund under this Agreement.
2
3. Compliance with Rules and Regulations. PFPC Distributors undertakes to
comply with all applicable requirements of the Securities Laws and any
laws, rules and regulations of governmental authorities having
jurisdiction with respect to the duties to be performed by PFPC
Distributors hereunder. Except as specifically set forth herein, PFPC
Distributors assumes no responsibility for such compliance by the Fund or
any other entity.
4. Instructions.
(a) Unless otherwise provided in this Agreement, PFPC Distributors shall
act only upon Oral Instructions or Written Instructions.
(b) PFPC Distributors shall be entitled to rely upon any Oral
Instruction or Written Instruction it receives from an Authorized
Person (or from a person reasonably believed by PFPC Distributors to
be an Authorized Person) pursuant to this Agreement. PFPC
Distributors may assume that any Oral Instruction or Written
Instruction received hereunder is not in any way inconsistent with
the provisions of organizational documents or this Agreement or of
any vote, resolution or proceeding of the Fund's Board of Directors
or Trustees or of the Fund's shareholders, unless and until PFPC
Distributors receives Written Instructions to the contrary.
3
(c) The Fund agrees to forward to PFPC Distributors Written Instructions
confirming Oral Instructions so that PFPC Distributors receives the
Written Instructions by the close of business on the same day that
such Oral Instructions are received. The fact that such confirming
Written Instructions are not received by PFPC Distributors or differ
from the Oral Instructions shall in no way invalidate the
transactions or enforceability of the transactions authorized by the
Oral Instructions or PFPC Distributors' ability to rely upon such
Oral Instructions. Where Oral Instructions or Written Instructions
reasonably appear to have been received from an Authorized Person,
PFPC Distributors shall incur no liability to the Fund in acting
upon such Oral Instructions or Written Instructions provided that
PFPC Distributors' actions comply with the other provisions of this
Agreement.
5. Right to Receive Advice.
(a) Advice of the Fund. If PFPC Distributors is in doubt as to any
action it should or should not take, PFPC Distributors may request
directions or advice, including Oral Instructions or Written
Instructions, from the Fund.
(b) Advice of Counsel. If PFPC Distributors shall be in doubt as to any
question of law pertaining to any action it should or should not
take, PFPC Distributors may request advice from counsel of its own
choosing (who may be counsel for the Fund, the Fund's investment
adviser or PFPC Distributors, at the option of PFPC Distributors).
4
(c) Conflicting Advice. In the event of a conflict between directions or
advice or Oral Instructions or Written Instructions PFPC
Distributors receives from the Fund, and the advice it receives from
counsel, PFPC Distributors may rely upon and follow the advice of
counsel.
(d) Protection of PFPC Distributors. PFPC Distributors shall be
protected in any action it takes or does not take in reliance upon
directions or advice or Oral Instructions or Written Instructions it
receives from the Fund or from counsel and which PFPC Distributors
believes, in good faith, to be consistent with those directions or
advice or Oral Instructions or Written Instructions. Nothing in this
section shall be construed so as to impose an obligation upon PFPC
Distributors (i) to seek such directions or advice or Oral
Instructions or Written Instructions, or (ii) to act in accordance
with such directions or advice or Oral Instructions or Written
Instructions unless, under the terms of other provisions of this
Agreement, the same is a condition of PFPC Distributors' properly
taking or not taking such action.
6. Records; Visits. The books and records pertaining to the Fund, which are
in the possession or under the control of PFPC Distributors, shall be the
property of the Fund. Such books and records shall be prepared and
maintained as required by the 1940 Act and other applicable securities
laws, rules and regulations. The Fund and Authorized Persons shall have
access to such books and records at all times during PFPC Distributors'
normal business hours. Upon the reasonable request of the Fund, copies of
any such books and records shall be provided by PFPC Distributors to the
Fund or to an Authorized Person, at the Fund's expense.
5
7. Confidentiality.
(a) Each party shall keep confidential any information relating to the other
party's business ("Confidential Information"). Confidential Information
shall include (a) any data or information that is competitively sensitive
material, and not generally known to the public, including, but not
limited to, information about product plans, marketing strategies,
finances, operations, customer relationships, customer profiles, customer
lists, sales estimates, business plans, and internal performance results
relating to the past, present or future business activities of the Fund or
PFPC Distributors, their respective subsidiaries and affiliated companies;
(b) any scientific or technical information, design, process, procedure,
formula, or improvement that is commercially valuable and secret in the
sense that its confidentiality affords the Fund or PFPC Distributors a
competitive advantage over its competitors; (c) all confidential or
proprietary concepts, documentation, reports, data, specifications,
computer software, source code, object code, flow charts, databases,
inventions, know-how, and trade secrets, whether or not patentable or
copyrightable; and (d) anything designated as confidential.
Notwithstanding the foregoing, information shall not be Confidential
Information and shall not be subject to such confidentiality obligations
if it: (a) is already known to the receiving party at the time it is
obtained; (b) is or becomes publicly known or available through no
wrongful act of the receiving party; (c) is rightfully received from a
third party who, to the best of the receiving party's knowledge, is not
under a duty of confidentiality; (d) is released by the protected party to
a third party without restriction; (e) is requested or required to be
disclosed by the receiving party pursuant to a court order, subpoena,
governmental or regulatory agency request or law (provided the receiving
party will provide the other party written notice of the same, to the
extent such notice is permitted); (f) is relevant to the defense of any
claim or cause of action asserted against the receiving party; (g) is Fund
information provided by PFPC Distributors in connection with an
independent third party compliance or other review; (h) release of such
information by PFPC Distributors is necessary or desirable in connection
with the provision of services under this Agreement; or (i) has been or is
independently developed or obtained by the receiving party. The provisions
of this Section 7 shall survive termination of this Agreement for a period
of three (3) years after such termination.
6
(b) Notwithstanding any provision herein to the contrary, each party
hereto agrees that any Nonpublic Personal Information, as defined
under Section 248.3(t) of Regulation S-P ("Regulation S-P"),
promulgated under the Xxxxx-Xxxxx-Xxxxxx Act (the "Act"), disclosed
by a party hereunder is for the specific purpose of permitting the
other party to perform the services set forth in this Agreement.
Each party agrees that, with respect to such information, it will
comply with Regulation S-P and the Act and that it will not disclose
any Nonpublic Personal Information received in connection with this
Agreement to any other party, except to the extent as necessary to
carry out the services set forth in this Agreement or as otherwise
permitted by Regulation S-P or the Act.
7
8. Compensation.
(a) As compensation for services rendered by PFPC Distributors during
the term of this Agreement, the Fund will pay to PFPC Distributors a
fee or fees as may be agreed to from time to time in writing by the
Fund and PFPC Distributors. The Fund acknowledges that PFPC
Distributors may receive float benefits and/or investment earnings
in connection with maintaining certain accounts required to provide
services under this Agreement.
(b) The undersigned hereby represents and warrants to PFPC Distributors
that (i) the terms of this Agreement, (ii) the fees and expenses
associated with this Agreement, and (iii) any benefits accruing to
PFPC Distributors or sponsor to the Fund in connection with this
Agreement, including but not limited to any fee waivers, conversion
cost reimbursements, up front payments, signing payments or periodic
payments made or to be made by PFPC Distributors to such adviser or
sponsor or any affiliate of the Fund relating to this Agreement have
been fully disclosed to the Board of Directors or Trustees of the
Fund and that, if required by applicable law, such Board of
Directors or Trustees has approved or will approve the terms of this
Agreement, any such fees and expenses, and any such benefits.
9. Indemnification.
(a) The Fund agrees to indemnify and hold harmless PFPC Distributors and
its affiliates from all taxes, charges, expenses, assessments,
claims and liabilities (including, without limitation, attorneys'
fees and disbursements and liabilities arising under the Securities
Laws and any state and foreign securities and blue sky laws) arising
directly or indirectly from any action or omission to act which PFPC
Distributors takes in connection with the provision of services to
the Fund. Neither PFPC Distributors, nor any of its affiliates,
shall be indemnified against any liability (or any expenses incident
to such liability) caused by PFPC Distributors' or its affiliates'
own willful misfeasance, bad faith, gross negligence or reckless
disregard of its duties and obligations under this Agreement.
8
(b) The Fund agrees to indemnify and hold harmless PFPC Distributors,
its officers, directors, and employees, and any person who controls
PFPC Distributors within the meaning of Section 15 of the 1933 Act,
free and harmless (a) from and against any and all claims, costs,
expenses (including reasonable attorneys' fees) losses, damages,
charges, payments and liabilities of any sort or kind which PFPC
Distributors, its officers, directors, employees or any such
controlling person may incur under the 1933 Act, under any other
statute, at common law or otherwise, arising out of or based upon:
(i) any untrue statement, or alleged untrue statement, of a material
fact contained in the Fund's Registration Statement, Prospectus,
Statement of Additional Information, or sales literature (including
amendments and supplements thereto), or (ii) any omission, or
alleged omission, to state a material fact required to be stated in
the Fund's Registration Statement, Prospectus, Statement of
Additional Information or sales literature (including amendments or
supplements thereto), necessary to make the statements therein not
misleading, provided, however, that insofar as losses, claims,
damages, liabilities or expenses arise out of or are based upon any
such untrue statement or omission or alleged untrue statement or
omission made in reliance on and in conformity with information
furnished to the Fund by PFPC Distributors or its affiliated persons
for use in the Fund's Registration Statement, Prospectus, or
Statement of Additional Information or sales literature (including
amendments or supplements thereto), such indemnification is not
applicable; and (b) from and against any and all such claims,
demands, liabilities and expenses (including such costs and counsel
fees) which you, your officers and directors, or such controlling
person, may incur in connection with this Agreement or PFPC
Distributors' performance hereunder (but excluding such claims,
demands, liabilities and expenses (including such costs and counsel
fees) arising out of or based upon any untrue statement, or alleged
untrue statement, of a material fact contained in any Registration
Statement or any Prospectus or arising out of or based upon any
omission, or alleged omission, to state a material fact required to
be stated in either any Registration Statement or any Prospectus or
necessary to make the statements in either thereof not misleading),
unless such claims, demands, liabilities and expenses (including
such costs and counsel fees) arise by reason of PFPC Distributors'
willful misfeasance, bad faith or gross negligence in the
performance of PFPC Distributors' duties hereunder. The Fund
acknowledges and agrees that in the event that PFPC Distributors, at
the request of the Fund, is required to give indemnification
comparable to that set forth in this paragraph to any broker-dealer
selling Shares of the Fund or servicing agent servicing the
shareholders of the Fund and such broker-dealer or servicing agent
shall make a claim for indemnification against PFPC Distributors,
PFPC Distributors shall make a similar claim for indemnification
against the Fund.
9
(c) PFPC Distributors agrees to indemnify and hold harmless the Fund,
its several officers and Board Members and each person, if any, who
controls the Fund within the meaning of Section 15 of the 1933 Act
against any and all claims, costs, expenses (including reasonable
attorneys' fees), losses, damages, charges, payments and liabilities
of any sort or kind which the Fund, its officers, Board Members or
any such controlling person may incur under the 1933 Act, under any
other statute, at common law or otherwise, but only to the extent
that such liability or expense incurred by the Fund, its officers or
Board Members, or any controlling person resulting from such claims
or demands arose out of the acquisition of any Shares by any person
which may be based upon any untrue statement, or alleged untrue
statement, of a material fact contained in the Fund's Registration
Statement, Prospectus or Statement of Additional Information
(including amendments and supplements thereto), or any omission, or
alleged omission, to state a material fact required to be stated
therein or necessary to make the statements therein not misleading,
if such statement or omission was made in reliance upon information
furnished or confirmed in writing to the Fund by PFPC Distributors
or its affiliated persons (as defined in the 1940 Act). The
foregoing rights of indemnification shall be in addition to any
other rights to which the Fund or any such person shall be entitled
to as a matter of law.
10
(d) In any case in which one party hereto (the "Indemnifying Party") may
be asked to indemnify or hold the other party hereto (the
"Indemnified Party") harmless, the Indemnified Party will notify the
Indemnifying Party promptly after identifying any situation which it
believes presents or appears likely to present a claim for
indemnification (an "Indemnification Claim") against the
Indemnifying Party, although the failure to do so shall not prevent
recovery by the Indemnified Party, and shall keep the Indemnifying
Party advised with respect to all developments concerning such
situation. The Indemnifying Party shall have the option to defend
the Indemnified Party against any Indemnification Claim which may be
the subject of this indemnification, and, in the event that the
Indemnifying Party so elects, such defense shall be conducted by
counsel chosen by the Indemnifying Party and satisfactory to the
Indemnified Party, and thereupon the Indemnifying Party shall take
over complete defense of the Indemnification Claim and the
Indemnified Party shall sustain no further legal or other expenses
in respect of such Indemnification Claim. In the event that the
Indemnifying Party does not elect to assume the defense of any such
suit, or in case the Indemnified Party reasonably does not approve
of counsel chosen by the Indemnifying Party, or in case there is a
conflict of interest between the Indemnifying Party or the
Indemnified Party, the Indemnifying Party will reimburse the
Indemnified Party for the fees and expenses of any counsel retained
by the Indemnified Party. The Fund agrees promptly to notify PFPC
Distributors of the commencement of any litigation or proceedings
against the Fund or any of its officers or directors in connection
with the issue and sale of any Shares. The Indemnified Party will
not confess any Indemnification Claim or make any compromise in any
case in which the Indemnifying Party will be asked to provide
indemnification, except with the Indemnifying Party's prior written
consent.
11
10. Responsibility of PFPC Distributors.
(a) PFPC Distributors shall be under no duty to take any action
hereunder on behalf of the Fund except as specifically set forth
herein or as may be specifically agreed to by PFPC Distributors and
the Fund in a written amendment hereto. PFPC Distributors shall be
obligated to exercise care and diligence in the performance of its
duties hereunder and to act in good faith in performing services
provided for under this Agreement. PFPC Distributors shall be liable
only for any damages arising out of PFPC Distributors' failure to
perform its duties under this Agreement to the extent such damages
arise out of PFPC Distributors' willful misfeasance, bad faith,
gross negligence or reckless disregard of such duties.
(b) Without limiting the generality of the foregoing or of any other
provision of this Agreement, (i) PFPC Distributors shall not be
liable for losses beyond its control, including, without limitation,
delays or errors or loss of data occurring by reason of
circumstances beyond PFPC Distributors' control, provided that PFPC
Distributors has acted in accordance with the standard set forth in
Section 10(a) above; and (ii) PFPC Distributors shall not be under
any duty or obligation to inquire into and shall not be liable for
the validity or invalidity or authority or lack thereof of any Oral
Instruction or Written Instruction, notice or other instrument which
conforms to the applicable requirements of this Agreement, and which
PFPC Distributors reasonably believes to be genuine.
12
(c) Notwithstanding anything in this Agreement to the contrary, neither
PFPC Distributors nor its affiliates shall be liable for any
consequential, special or indirect losses or damages, whether or not
the likelihood of such losses or damages was known by PFPC
Distributors or its affiliates.
(d) No party may assert a cause of action against PFPC Distributors or
any of its affiliates that allegedly occurred more than twelve (12)
months immediately prior to the filing of the suit (or, if
applicable, commencement of arbitration proceedings) alleging such
cause of action.
(e) Each party shall have a duty to mitigate damages for which the other
party may become responsible.
(f) The provisions of this Section 10 shall survive termination of this
Agreement.
(g) Notwithstanding anything in this Agreement to the contrary, PFPC
shall have no liability either for any error or omission of any of
its predecessors as servicer on behalf of the Fund or for any
failure to discover any such error or omission.
13
11. Duties and Obligations of the Fund.
(a) The Fund represents to PFPC Distributors that all Registration
Statements and Prospectuses filed by the Fund with the SEC under the
1933 Act with respect to the Shares have been prepared in conformity
with the requirements of the 1933 Act and the rules and regulations
of the SEC thereunder. Except as to information included in the
Registration Statement in reliance upon information provided to the
Fund by PFPC Distributors or any affiliate of PFPC Distributors
expressly for use in the Registration Statement, the Fund represents
and warrants to PFPC Distributors that any Registration Statement,
when such Registration Statement becomes effective, will contain
statements required to be stated therein in conformity with the 1933
Act and the rules and regulations of the SEC; that all statements of
fact contained in any such Registration Statement will be true and
correct when such Registration Statement becomes effective; and that
no Registration Statement when such Registration Statement becomes
effective will include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading to a
purchaser of the Shares. PFPC Distributors may but shall not be
obligated to propose from time to time such amendment or amendments
to any Registration Statement and such supplement or supplements to
any Prospectus as, in the light of future developments, may, in the
opinion of the PFPC Distributors' counsel, be necessary or
advisable. PFPC Distributors shall promptly notify the Fund of any
advice given to it by its counsel regarding the necessity or
advisability of amending or supplementing such Registration
Statement. If the Fund shall not propose such amendment or
amendments and/or supplement or supplements within fifteen days
after receipt by the Fund of a written request from PFPC
Distributors to do so, PFPC Distributors may, at its option,
terminate this Agreement. The Fund shall not file any amendment to
any Registration Statement or supplement to any Prospectus without
giving PFPC Distributors reasonable notice thereof in advance;
provided, however, that nothing contained in this Agreement shall in
any way limit the Fund's right to file at any time such amendments
to any Registration Statements and/or supplements to any Prospectus,
of whatever character, as the Fund may deem advisable, such right
being in all respects absolute and unconditional. The Fund
authorizes PFPC Distributors to use any Prospectus or Statement of
Additional Information in the form furnished from time to time in
connection with the sale of the Shares.
14
(b) The Fund represents and warrants to PFPC Distributors that the Fund
is a series of investment company registered under the 1940 Act and
the Shares sold by the Fund are, and will be, registered under the
1933 Act.
(c) The net asset value of the Shares shall be determined in the manner
provided in the then current Prospectus and Statement of Additional
Information relating to the Shares, and when determined shall be
applicable to all transactions as provided in the Prospectus. The
net asset value of the Shares shall be calculated by the Fund or by
another entity on behalf of the Fund. PFPC Distributors shall have
no duty to inquire into, or liability for, the accuracy of the net
asset value per Share as calculated.
(d) Whenever in its judgment such action is warranted by unusual market,
economic or political conditions or abnormal circumstances of any
kind, the Fund may decline to accept any orders for, or make any
sales of, the Shares until such time as the Fund deems it advisable
to accept such orders and to make such sales, and the Fund advises
PFPC Distributors promptly of such determination.
15
(e) The Fund agrees to execute any and all documents and to furnish any
and all information and otherwise to take all actions that may be
reasonably necessary in connection with the qualification of the
Shares for sale in such states as PFPC Distributors may designate.
The Fund shall notify PFPC Distributors in writing of the states in
which the Shares may be sold and shall notify PFPC Distributors in
writing of any changes to the information contained in the previous
notification.
12. Duties and Obligations of PFPC Distributors.
(a) PFPC Distributors will act on behalf of the Fund for the
distribution of the Shares covered by the Registration Statement
under the 1933 Act and provide the distribution services outlined
below and as follows: (i) preparation and execution of sales or
servicing agreements, (ii) preparation of quarterly 12b-1 Reports to
the Board, (iii) literature review, recommendations and submission
to the NASD.
(b) PFPC Distributors agrees to use efforts deemed appropriate by PFPC
Distributors to solicit orders for the sale of the Shares and will
undertake such advertising and promotion as it believes reasonable
in connection with such solicitation. To the extent that PFPC
Distributors receives fees under any plan adopted by the Fund
pursuant to Rule 12b-1 under the 1940 Act, PFPC Distributors agrees
to furnish and/or enter into arrangements with others for the
furnishing of marketing or sales services with respect to the Shares
as may be required pursuant to such plan. To the extent that PFPC
Distributors receives shareholder services fees under any
shareholder services plan adopted by the Fund, PFPC Distributors
agrees to furnish and/or enter into arrangements with others for the
furnishing of, personal and/or account maintenance services with
respect to the relevant shareholders of the Fund as may be required
pursuant to such plan. It is contemplated that PFPC Distributors
will enter into sales or servicing agreements with securities
dealers, financial institutions and other industry professionals,
such as investment advisers, accountants and estate planning firms.
PFPC Distributors will require each dealer with whom PFPC
Distributors has a selling agreement to conform to the applicable
provisions of the Prospectus, with respect to the public offering
price of the Shares, and PFPC Distributors shall not cause the Fund
to withhold the placing of purchase orders so as to make a profit
thereby.
16
(c) PFPC Distributors shall not utilize any materials in connection with
the sale or offering of Shares except the Fund's Prospectus and
Statement of Additional Information and such other materials as the
Fund shall provide or approve. The Fund agrees to furnish PFPC
Distributors with sufficient copies of any and all: agreements,
plans, and communications with the public or other materials which
the Fund intends to use in connection any sales of Shares, in
adequate time for PFPC Distributors to file and clear such materials
with the proper authorities before they are put in use. PFPC
Distributors and the Fund may agree that any such material does not
need to be filed subsequent to distribution. In addition, the Fund
agrees not to use any such materials until so filed and cleared for
use, if required, by appropriate authorities as well as by PFPC
Distributors.
(d) PFPC Distributors will transmit any orders received by it for
purchase or redemption of the Shares to the transfer agent for the
Fund. PFPC Distributors will have no liability for payment for the
purchase of Shares sold pursuant to this Agreement or with respect
to redemptions or repurchases of Shares.
17
(e) No Shares shall be offered by either PFPC Distributors or the Fund
under any of the provisions of this Agreement and no orders for the
purchase or sale of Shares hereunder shall be accepted by the Fund
if and so long as effectiveness of the Registration Statement then
in effect or any necessary amendments thereto shall be suspended
under any of the provisions of the 1933 Act, or if and so long as a
current Prospectus as required by Section 5(b)(2) of the 1933 Act is
not on file with the SEC; provided, however, that nothing contained
in this paragraph shall in any way restrict or have any application
to or bearing upon the Fund's obligation to redeem Shares tendered
for redemption by any shareholder in accordance with the provisions
of the Fund's Registration Statement, Articles of Incorporation, or
bylaws.
(f) PFPC Distributors represents and warrants that it is and will
continue to be at all times during the term of this Agreement
registered as a broker-dealer in all fifty (50) states.
13. Duration and Termination. This Agreement shall become effective on the
date first written above and, unless sooner terminated as provided herein,
shall continue for an initial two-year term and thereafter shall be
renewed for successive one-year terms, provided such continuance is
specifically approved at least annually by (i) the Fund's Board of
Directors or (ii) by a vote of a majority (as defined in the 1940 Act and
Rule 18f-2 thereunder) of the outstanding voting securities of the Fund,
provided that in either event the continuance is also approved by a
majority of the Board Members who are not parties to this Agreement and
who are not interested persons (as defined in the 0000 Xxx) of any party
to this Agreement, by vote cast in person at a meeting called for the
purpose of voting on such approval. This Agreement is terminable without
penalty, on at least sixty days' written notice, by the Fund's Board of
Directors, by vote of a majority (as defined in the 1940 Act and Rule
18f-2 thereunder) of the outstanding voting securities of the Fund, or by
PFPC Distributors. This Agreement will also terminate automatically in the
event of its assignment (as defined in the 1940 Act and the rules
thereunder). In the event the Fund gives notice of termination, all
expenses associated with movement (or duplication) of records and
materials and conversion thereof to a successor transfer agent or other
service provider, and all trailing expenses incurred by PFPC Distributors,
will be borne by the Fund.
18
14. Notices. Notices shall be addressed (a) if to PFPC Distributors, at 000
Xxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: President (or
such other address as PFPC may inform the Fund in writing); (b) if to the
Fund, at 00 Xxxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, Xxx Xxxx 00000,
Attention: Xxxxx Xxxxxxxxxx or (c) if to neither of the foregoing, at such
other address as shall have been given by like notice to the sender of any
such notice or other communication by the other party. If notice is sent
by confirming telegram, cable, telex or facsimile sending device, it shall
be deemed to have been given immediately. If notice is sent by first-class
mail, it shall be deemed to have been given three days after it has been
mailed. If notice is sent by messenger, it shall be deemed to have been
given on the day it is delivered.
19
15. Amendments. This Agreement, or any term thereof, may be changed or waived
only by a written amendment, signed by the party against whom enforcement
of such change or waiver is sought.
16. Non-Solicitation. During the term of this Agreement and for one year
thereafter, the Fund shall not (with the exceptions noted in the
immediately succeeding sentence) knowingly solicit or recruit for
employment or hire any of PFPC Distributors' employees, and the Fund shall
cause the Fund's sponsor and the Fund's affiliates to not (with the
exceptions noted in the immediately succeeding sentence) knowingly solicit
or recruit for employment or hire any of PFPC Distributors' employees. To
"knowingly" solicit, recruit or hire within the meaning of this provision
does not include, and therefore does not prohibit, solicitation,
recruitment or hiring of a PFPC Distributors employee by the Fund, the
Fund's sponsor or an affiliate of the Fund if the PFPC Distributors
employee was identified by such entity solely as a result of the PFPC
Distributors employee's response to a general advertisement by such entity
in a publication of trade or industry interest or other similar general
solicitation by such entity.
17. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
18. Further Actions. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof.
19. Miscellaneous.
(a) Entire Agreement. This Agreement embodies the entire agreement and
understanding between the parties and supersedes all prior
agreements and understandings relating to the subject matter hereof,
provided that the parties may embody in one or more separate
documents their agreement, if any, with respect to delegated duties.
20
(b) No Changes that Materially Affect Obligations. Notwithstanding
anything in this Agreement to the contrary, the Fund agrees not to
make any modifications to its registration statement or adopt any
policies which would affect materially the obligations or
responsibilities of PFPC Distributors hereunder without the prior
written approval of PFPC Distributors, which approval shall not be
unreasonably withheld or delayed.
(c) Captions. The captions in this Agreement 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.
(d) Information. The Fund will provide such information and
documentation as PFPC Distributor may reasonably request in
connection with services provided by PFPC Distributor to the Fund.
(e) Governing Law. This Agreement shall be deemed to be a contract made
in Delaware and governed by Delaware law, without regard to
principles of conflicts of law.
(f) Partial Invalidity. If any provision of this Agreement shall be held
or made invalid by a court decision, statute, rule or otherwise, the
remainder of this Agreement shall not be affected thereby.
21
(g) Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
(h) No Representations or Warranties. Except as expressly provided in
this Agreement, PFPC Distributors hereby disclaims all
representations and warranties, express or implied, made to the Fund
or any other person, including, without limitation, any warranties
regarding quality, suitability, merchantability, fitness for a
particular purpose or otherwise (irrespective of any course of
dealing, custom or usage of trade), of any services or any goods
provided incidental to services provided under this Agreement. PFPC
Distributors disclaims any warranty of title or non-infringement
except as otherwise set forth in this Agreement.
(i) Facsimile Signatures. The facsimile signature of any party to this
Agreement shall constitute the valid and binding execution hereof by
such party.
(j) Customer Identification Program Notice. To help the U.S. government
fight the funding of terrorism and money laundering activities, U.S.
Federal law requires each financial institution to obtain, verify,
and record certain information that identifies each person who
initially opens an account with that financial institution on or
after October 1, 2003. Consistent with this requirement, PFPC
Distributors will request (or already has requested) the Fund's
name, address and taxpayer identification number or other
government-issued identification number, and, if such party is a
natural person, that party's date of birth. PFPC Distributor may
also ask (and may have already asked) for additional identifying
information, and PFPC Distributor may take steps (and may have
already taken steps) to verify the authenticity and accuracy of
these data elements.
22
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PFPC DISTRIBUTORS, INC.
By:_____________________
Title:__________________
NEW ALTERNATIVES FUND, INC.
By:_____________________
Title:__________________
23
