SUB-DISTRIBUTION AGREEMENT
Exhibit
e.(1)
THIS
AGREEMENT
is
made
as
of
July l, 2006
by
and
between
PFPC
DISTRIBUTORS,
INC., a Massachusetts corporation ("PFPC Distributors"), and
ACCRUED EQUITIES,
INC., a New York corporation ("Accrued Equities").
WITNESSETH:
WHEREAS,
pursuant to an underwriting agreement (the "Accrued Equities Underwriting
Agreement"),
Accrued Equities has served as the principal underwriter
of the shares (the "Shares")
of the New Alternatives Fund, Inc. (the "Fund"), an open-end management
investment company
registered under the Investment Company Act of 1940, as amended (the "1940
Act");
WHEREAS,
Accrued Equities has entered into a selected dealer agreement or
similar agreement
(each, a "Selected Dealer Agreement") with certain broker-dealers or other
financial institutions
(each, a "Selected Dealer") relating to the sale of Shares by such Selected
Dealer;
WHEREAS,
Accrued Equities is terminating the Accrued Equities Underwriting Agreement,
upon the effectiveness of which termination Accrued Equities will no longer
serve as
the
principal underwriter of the Shares of the Fund;
WHEREAS,
pursuant to an underwriting agreement
with the Fund (the "PFPC Distributors
Underwriting Agreement"), PFPC Distributors is agreeing to serve as the
principal underwriter
of the Shares of the Fund, effective July 1, 2006;
WHEREAS,
PFPC Distributors wishes to retain Accrued Equities as an underwriter of
the
Fund;
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. Accrued
Equities as Underwriter.
PFPC
Distributors hereby appoints Accrued Equities
to serve as an underwriter (but not a principal underwriter) of the Shares
of
the Fund, and
Accrued Equities hereby accepts such appointment and agrees to furnish such
services. Accrued Equities acknowledges and understands that the Fund may
issue
Shares in multiple classes,
and agrees to serve as an underwriter for each class of Shares. This agreement
is non-exclusive,
and PFPC Distributors may select other persons to assist in the sale and
distribution of Shares,
and Accrued Equities may serve as underwriter or distributor for the shares
of
other registered
investment companies.
2. Duties
and Obligations of Accrued Equities.
(a)
Accrued
Equities agrees to use its reasonable best efforts to promote the sale of
Shares
as
provided in ibis Agreement. Accrued Equities agrees to use its best efforts
to
maintain the
current Selected Dealer Agreements in full force and effect and enter into
new
Selected Dealer
Agreements (substantially in the form attached hereto as Exhibit A) with
any
additional Selected
Dealers as Accrued Equities deems appropriate. Accrued Equities shall be
solely
responsible
for the selection and performance of the Selected Dealers. To
the
extent that Accrued
Equities, as an underwriter, receives service and distribution fees under
any
plan approved
by the Fund with respect to any Shares, Accrued Equities agrees to remit
such
fees to the
Selected Dealer who is responsible for the furnishing of distribution, personal
and/or account maintenance
services with respect to the relevant beneficial owner of such Shares as
may be
required
pursuant to such plan.
(b)
Accrued
Equities will not utilize any materials in connection with the sale or
offering
of Shares except the applicable Fund's Prospectus and Statement of Additional
Information
and such other materials as the Fund or PFPC Distributors may provide or
approve. PFPC
Distributors agrees to furnish Accrued Equities with sufficient copies of
any
and all agreements,
plans, communications with the public or other materials that the Fund uses
in
connection
with any sales of Shares, as reasonably requested by Accrued
Equities.
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(c)
Accrued Equities will cause the Selected Dealers to transmit any orders for
purchase
of the Shares to the transfer agent for the Fund. Accrued Equities will have
no
liability for
payment for the purchase of Shares sold pursuant to this Agreement.
3. Compliance
with Rules and Regulations. Accrued
Equities undertakes to comply
with all requirements of the applicable laws, and any laws, rules and
regulations of governmental
authorities having jurisdiction with respect to the duties to be performed
by
Accrued
Equities 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) In
addition to performing the services described in this Agreement, Accrued
Equities
may rely upon and act upon Oral Instructions or Written Instructions.
"Oral
Instructions"
means oral instructions received by Accrued Equities from an Authorized Person
or from
a
person reasonably believed by Accrued Equities to be an Authorized Person.
"Authorized
Person" means (i) any officer of PFPC Distributors, or (ii) any other person
duly authorized
by any Fund to give Oral Instructions or Written Instructions on behalf of
itself or PFPC
Distributors. "Written Instructions" means written instructions signed by
an
Authorized Person
and received by Accrued Equities or trade instructions transmitted (and received
by Accrued
Equities) by means of an electronic transaction reporting system access that
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.
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(b) Accrued
Equities will be entitled to rely upon any Oral Instruction or Written
Instruction
it receives from an Authorized Person (or from a person reasonably believed
by
Accrued
Equities to be an Authorized Person) pursuant to this Agreement. Accrued
Equities 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 or PFPC Distributors, unless and until Accrued
Equities receives Written Instructions to the contrary.
(c)
Records;
Visits. The books and records pertaining to the Fund, which are in
the
possession or under the control of Accrued Equities, will be the property
of
the
Fund. Such
books and records will be prepared and maintained as required by the 1940
Act
and other
applicable
securities laws, rules and regulations. Accrued
Equities will provide access to such books
and
records to PFPC Distributors, the Fund or an Authorized Person, at all
times
during Accrued
Equities' normal business hours. Upon
the
reasonable request of the Fund, PFPC Distributors
or an Authorized Person, copies of any such books and records will be provided
by
Accrued
Equities to such person, at the expense of the Fund or PFPC Distributors,
as
the
case may
be.
5. Confidentiality.
(a) Each
party will keep confidential any information relating to the other party's
business ("Confidential Information"). Confidential
Information will include: (a)
any
data or information
that is competitively sensitive material, and not generally known
to
the public, including,
but
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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,
PFPC Distributors or Accrued Equities, their respective subsidiaries
and affiliated companies
and the customers, clients and suppliers of any of them; (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, PFPC Distributors
or Accrued Equities
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
will not be subject to such confidentiality obligations if it: (i) is already
known to the receiving party at the time it is obtained; (ii) is or becomes
publicly known or available through no wrongful act of the receiving party;
(iii) is rightfully received from a third party who, to the best of the
receiving party's knowledge, is not under a duty of confidentiality; (iv)
is
released
by the protected party to a third party without restriction; (v) is required
to
be disclosed by
the
receiving party pursuant to a requirement of a court order, subpoena or law
(provided the receiving
party will provide the other party written notice of such requirement, to
the
extent such notice
is
permitted); (f) is requested by any governmental or regulatory agency or
self-regulatory authority
having jurisdiction over the party to which the request is made, (g) is relevant
to the defense
of any claim or cause of action asserted against the receiving party; (h)
has
been or is independently
developed or obtained by the receiving party; or (1) is related to the tax
structure or
tax
consequences of a transaction.
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(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 "G-L-B 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 G-L-B 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 G-L-B Act.
6. Compensation. As
compensation for the services rendered by Accrued Equities during
the term of this Agreement, Accrued Equities shall be entitled to the
compensation set forth in the fee letter between PFPC Distributors and Accrued
Equities.
7. Expenses. Each
party shall be responsible for the payment of expenses it incurs pursuant
to this Agreement.
8. Indemnification.
(a)
PFPC
Distributors 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
any
applicable law) arising directly or indirectly from any action or omission
to
act which PFPC Distributors takes
in
connection with the provision of services hereunder. Neither Accrued Equities,
nor any of
its
affiliates, will be indemnified against any liability (or any expenses incident
to such liability)
caused by Accrued Equities' or its affiliates' own willful misfeasance, bad
faith, negligence
or reckless disregard of its duties and obligations under this
Agreement.
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(b)
PFPC
Distributors 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
applicable law) arising directly or indirectly from any action or omission
to
act which Accrued Equities takes in connection
with the provision of services hereunder. Neither PFPC Distributors, nor
any of
its affiliates,
will be indemnified against any liability (or any expenses incident to such
liability) caused
by
PFPC Distributors' or its affiliates' own willful misfeasance, bad faith,
negligence or reckless
disregard of its duties and obligations under this Agreement.
9. Responsibility
of PFPC Distributors.
(a)
PFPC
Distributors will be under no duly to take any action hereunder except as
specifically
set forth herein or as may be specifically agreed to by Accrued Equities
and
PFPC Distributors
in a written amendment hereto. PFPC Distributors will 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 will be liable only for any damages
arising out of its failure to perform its duties under this Agreement to
the
extent such damages
arise out of its willful misfeasance, bad faith, negligence or reckless
disregard of such duties.
(b)
Without
limiting the generality of the foregoing or of any other provision of this
Agreement,
PFPC Distributors will not be liable for losses beyond its control, including,
without limitation,
delays or errors or loss of data occurring by reason of circumstances beyond
its
control,
provided that PFPC Distributors has acted in accordance with the standard
set
forth in Section
9(a) above.
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(c)
Notwithstanding
anything in this Agreement to the contrary, neither party nor its affiliates
will be liable for any consequential, special or indirect losses or damages,
whether or not
the
likelihood of such losses or damages was known by such party or its
affiliates.
(d) Each
party hereto acknowledges that it has a duty to mitigate damages for which
the
other
party may become responsible.
10. Duration
and Termination. This
Agreement will become effective as of the date first
written above. This Agreement may be terminated by either party upon sixty
(60)
days' written
notice to the other party.
11. Notices. Notices
will be addressed (a) if to PFPC Distributors, at 000 Xxxxxxxx Xxxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000, Attention: President; (b) if to Accrued Equities,
at
000 Xxxxxxxxxxx Xxxx. Xxxxx 000. Melville, New York I l 747. Attention: Xxxxx
Xxxxxxxxxx; or (c) in
any
case, at such other address as will 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 will be deemed to have been given
immediately. If notice is sent by first-class mail, it will be deemed to
have
been given three days after it has been mailed.
If notice is sent by messenger, it will be deemed to have been given on the
day
it is delivered.
12. 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.
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13. Counterparts. This
Agreement may be executed in two or more counterparts, each
of
which will be deemed an original, but all of which together will constitute
one
and the same
instrument.
14. Further
Actions. Each
party agrees to perform such further acts and execute such
further documents as are necessary to effectuate the purposes hereof.
15. Miscellaneous.
(a)
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.
(b)
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.
(c) This
Agreement will be deemed to be a contact made in Delaware and governed
by
Delaware law, without regard to principles of conflicts of law.
(d) If
any
provision of this Agreement will be held or made invalid by a court
decision,
statute, rule or otherwise, the remainder of this Agreement will not be affected
thereby.
(e) This
Agreement will be binding upon and will inure to the benefit of the parties
hereto
and their respective successors and permitted assigns.
(f) Except
as
expressly provided in this Agreement, each party hereby disclaims to
the
other
all representations and warranties, express or implied, made to the other
party
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. Each party further disclaims to the other any warranty
of
title or non-infringement except as otherwise set forth in this Agreement
and
binding execution hereof by such party.
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(h) Each
party will provide such information and documentation to the other as the
other
party may reasonably request in connection with providing services
hereunder.
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:
/s/Xxxxx XxXxxxxxx
Title:
Director
ACCRUED
EQUITIES, INC
By:
/s/Xxxxx Xxxxxxxxxx
Title:
President
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