Exhibit d(35)
February 1, 2006
Harbor Capital Advisors, Inc.
▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
INVESTMENT ADVISORY AGREEMENT
(HARBOR SMALL COMPANY GROWTH FUND)
Dear Sirs:
Harbor Fund (the "Trust") has been organized under the laws of Delaware to
engage in the business of an investment company. The shares of beneficial
interest of the Trust ("Shares") are divided into multiple series, including
Harbor Small Company Growth Fund (the "Fund"), as established pursuant to a
written instrument executed by the Trustees of the Trust. Series may be
terminated, and additional series established, from time to time by action of
the Trustees. The Trust on behalf of the Fund has selected you to act as the
investment adviser of the Fund and to provide certain other services, as more
fully set forth below, and you are willing to act as such investment adviser and
to perform such services under the terms and conditions hereinafter set forth.
Accordingly, the Trust agrees with you as follows:
1. DELIVERY OF FUND DOCUMENTS: The Trust has furnished you with copies
properly certified or authenticated of each of the following:
(A) Agreement and Declaration of Trust of the Trust, as in effect on the
date hereof (the "Declaration of Trust").
(B) By-Laws of the Trust as in effect on the date hereof (the "By-Laws").
(C) Resolutions of the Trustees selecting you as investment adviser and
approving the form of this Agreement.
The Trust will furnish you from time to time with copies, properly
certified or authenticated, of all amendments of or supplements to the
foregoing, including future resolutions of the Trustees approving the
continuance of the items listed in (c) above.
2. NAME OF FUND: The Trust may use the name "Harbor Fund" or any name derived
from the name "Harbor Capital Advisors" in connection with the Fund only
for so long as this Agreement or any extension, renewal or amendment hereof
remains in effect, including any similar agreement with any organization
which shall have succeeded to your business as investment adviser. At such
time as such an agreement shall no longer be in effect, the Trust (to the
extent that it lawfully can) will cause the Fund to cease to use such a
name or any other name indicating that it is
INVESTMENT ADVISORY AGREEMENT
HARBOR SMALL COMPANY GROWTH FUND
FEBRUARY 1, 2006
advised by or otherwise connected with you or any organization which shall
have so succeeded to your business.
3. SUBADVISERS: You may engage one or more investment advisers which are
either registered as such or specifically exempt from registration under
the Investment Advisers Act of 1940, as amended, to act as subadvisers to
provide with respect to the Fund certain services set forth in Paragraphs 4
and 7 hereof, all as shall be set forth in a written contract to which the
Trust, on behalf of the Fund, and you shall be parties, which contract
shall be subject to approval in accordance with the requirements of the
Investment Company Act of 1940, as amended, and as such requirements may be
modified by rule, regulation or order of the Securities and Exchange
Commission.
4. ADVISORY SERVICES: You will regularly provide the Fund with investment
research, advice and supervision and will furnish continuously an
investment program for the Fund consistent with the investment objectives
and policies of the Fund. You will determine what securities shall be
purchased for the Fund, what securities shall be held or sold by the Fund,
and what portion of the Fund's assets shall be held uninvested, subject
always to the provisions of the Trust's Declaration of Trust and By-Laws
and of the Investment Company Act of 1940, as amended, and to the
investment objectives, policies and restrictions of the Fund, as each of
the same shall be from time to time in effect, and subject, further to such
policies and instructions as the Board of Trustees may from time to time
establish. You shall advise and assist the officers of the Trust in taking
such steps as are necessary or appropriate to carry out the decisions of
the Board of Trustees and the appropriate committees of the Board of
Trustees regarding the conduct of the business of the Trust insofar as it
relates to the Fund.
5. ALLOCATION OF CHARGES AND EXPENSES: You will pay the compensation and
expenses of all officers and executive employees of the Trust and will make
available, without expense to the Trust, the services of such of your
partners and employees as may duly be elected officers or Trustees of the
Trust, subject to their individual consent to serve and to any limitations
imposed by law. You will pay the Trust's office rent and will provide
investment advisory, research and statistical facilities and all clerical
services relating to research, statistical and investment work. You will
not be required to pay any expenses of the Trust other than those
specifically allocated to you in this paragraph 5. In particular, but
without limiting the generality of the foregoing, you will not be required
to pay: organization expenses of the Trust; clerical salaries; fees and
expenses incurred by the Trust in connection with membership in investment
company organizations; brokers' commissions; payment for portfolio pricing
services to a pricing agent, if any; legal, auditing or accounting
expenses; taxes or governmental fees; the fees and expenses of the transfer
agent of the Trust; the cost of preparing share certificates or any other
expenses, including clerical expenses of issue, redemption or repurchase of
shares of beneficial interest of the Trust; the expenses of and fees for
registering or qualifying securities for sale and of maintaining the
registration of the Trust and registering the Trust as a broker or a
dealer; the fees and expenses of Trustees of the Trust who are not
affiliated with you; the cost of preparing and distributing reports and
notices to shareholders; the fees or disbursements of custodians of the
Trust's assets, including expenses incurred in the performance of any
obligations enumerated by the Declaration of Trust or By-Laws of the Trust
insofar as they govern agreements with any such custodian; or litigation
and indemnification expenses and other extraordinary expenses not incurred
in the ordinary course of the Trust's business. You shall not be required
to pay expenses of activities which are primarily intended to result in
sales of Shares of the Trust if and to the
2
INVESTMENT ADVISORY AGREEMENT
HARBOR SMALL COMPANY GROWTH FUND
FEBRUARY 1, 2006
extent that (i) such expenses are required to be borne by a principal
underwriter which acts as the distributor of the Trust's Shares pursuant to
an underwriting agreement which provides that the underwriter shall assume
some or all of such expenses, or (ii) the Trust on behalf of the Fund shall
have adopted a plan in conformity with Rule 12b-1 under the Investment
Company Act of 1940, as amended, providing that the Trust (or some other
party) shall assume some or all of such expenses. You shall be required to
pay the foregoing expenses that are not required to be paid by the
principal underwriter pursuant to the underwriting agreement or are not
permitted to be paid by the Trust (or some other party) pursuant to such a
plan.
6. COMPENSATION OF THE ADVISER:
(A) For all services to be rendered and payments made as provided in
paragraphs 4 and 5 hereof, the Trust on behalf of the Fund will pay
you on the last day of each month a fee equal to the sum of 0.75% per
annum of the average daily net assets of the Fund, as defined below.
The "average daily net assets" of the Fund are defined as the average
of the values placed on the net assets as of 4:00 P.M. (New York
time), on each day on which the net asset value of the Fund's
portfolio is determined consistent with the provisions of Rule 22c-1
under the Investment Company Act of 1940 or, if the Fund lawfully
determines the value of the net assets of its portfolio as of some
other time on each business day, as of such time. The value of the net
assets of the Fund shall be determined pursuant to the applicable
provisions of the Declaration of Trust of the Trust. If, pursuant to
such provisions, the determination of net asset value is suspended for
any particular business day, then for the purposes of this paragraph
6, the value of the net assets of the Fund as last determined shall be
deemed to be the value of the net assets as of the close of the New
York Stock Exchange, or as of such other time as the value of the net
assets of the Fund's portfolio may lawfully be determined, on that
day. If the determination of the net asset value of the Shares of the
Fund has been suspended pursuant to the Declaration of Trust of the
Trust for a period including such month, your compensation payable at
the end of such month shall be computed on the basis of the value of
the net assets of the Fund as last determined (whether during or prior
to such month). If the Fund determines the value of the net assets of
its portfolio more than once on any day, the last such determination
thereof on that day shall be deemed to be the sole determination
thereof on that day for the purposes of this paragraph 6.
(B) You agree that your compensation for any month shall include, and thus
be reduced by, the amount, if any, which you pay to any subadviser
engaged pursuant to Paragraph 3 hereof. You agree that the Trust on
behalf of the Fund shall not be required to pay any fee to any such
subadviser.
7. AVOIDANCE OF INCONSISTENT POSITION: In connection with purchases or sales
of portfolio securities for the account of the Fund, neither you nor any of
your partners, directors, officers or employees nor any subadviser engaged
by you pursuant to paragraph 3 hereof will act as a principal or agent or
receive any commission. You or your agent shall arrange for the placing of
all orders for the purchase and sale of portfolio securities for the Fund's
account with brokers or dealers selected by you. In the selection of such
brokers or dealers and the placing of such orders, you are directed at all
times to seek for the Fund the most favorable execution and net price
available. It is also understood that it is desirable for the Fund that you
have access to supplemental investment and market research and security and
economic analyses provided by
3
INVESTMENT ADVISORY AGREEMENT
HARBOR SMALL COMPANY GROWTH FUND
FEBRUARY 1, 2006
certain brokers who may execute brokerage transactions at a higher cost to
the Fund than may result when allocating brokerage to other brokers on the
basis of seeking the most favorable price and efficient execution.
Therefore, you are authorized to place orders for the purchase and sale of
securities for the Fund with such certain brokers, subject to review by the
Trust's Trustees from time to time with respect to the extent and
continuation of this practice. It is understood that the services provided
by such brokers may be useful to you in connection with your services to
other clients. If any occasion should arise in which you give any advice to
clients of yours concerning the Shares of the Fund, you will act solely as
investment counsel for such clients and not in any way on behalf of the
Fund. Your services to the Fund pursuant to this Agreement are not to be
deemed to be exclusive and it is understood that you may render investment
advice, management and other services to others.
8. LIMITATION OF LIABILITY OF ADVISER: You shall not be liable for any error
of judgment or mistake of law or for any loss suffered by the Fund in
connection with the matters to which this Agreement relates, except a loss
resulting from willful misfeasance, bad faith or gross negligence on your
part in the performance of your duties or from reckless disregard by you of
your obligations and duties under this Agreement. Any person, even though
also employed by you, who may be or become an employee of and paid by the
Trust or the Fund shall be deemed, when acting within the scope of his
employment by the Trust, to be acting in such employment solely for the
Trust and not as your employee or agent.
9. DURATION AND TERMINATION OF THIS AGREEMENT: This Agreement shall remain in
force until February 1, 2008 and from year to year thereafter, but only so
long as such continuance is specifically approved at least annually in the
manner prescribed in the Investment Company Act of 1940 and the rules and
regulations thereunder. This Agreement may, on 60 days written notice, be
terminated at any time without the payment of any penalty, by the Board of
Trustees, by vote of a majority of the outstanding voting securities of the
Fund, or by you. This Agreement shall automatically terminate in the event
of its assignment. In interpreting the provisions of this Agreement, the
definitions contained in Section 2(a) of the Investment Company Act of 1940
(particularly the definitions of "interested person," "assignment" and
"majority of the outstanding voting securities"), as from time to time
amended, shall be applied, subject, however, to such exemptions as may be
granted by the Securities and Exchange Commission by any rule, regulation
or order.
10. AMENDMENT OF THIS AGREEMENT: No provisions of this Agreement may be
changed, waived, discharged or terminated orally, but only by an instrument
in writing signed by the party against which enforcement of the change,
waiver, discharge or termination is sought, and no amendment of this
Agreement shall be effective until approved by vote of the holders of a
majority of the outstanding voting securities of the Fund and by the Board
of Trustees, including a majority of the Trustees who are not interested
persons of you or of the Trust, cast in person at a meeting called for the
purpose of voting on such approval.
11. GOVERNING LAW: This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio.
12. MISCELLANEOUS: It is understood and expressly stipulated that neither the
holders of shares of the Trust or the Fund nor the Trustees shall be
personally liable hereunder. The captions in this Agreement are included
for convenience of reference only and in no way define or delimit any of
4
INVESTMENT ADVISORY AGREEMENT
HARBOR SMALL COMPANY GROWTH FUND
FEBRUARY 1, 2006
the provisions hereof or otherwise affect their construction or effect.
This Agreement may be executed simultaneously 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.
The name "Harbor Fund" is the designation of the Trustees for the time
being under the Declaration of Trust dated June 8, 1993, as amended from
time to time, and all persons dealing with the Trust or the Fund must look
solely to the property of the Trust or the Fund for the enforcement of any
claims against the Trust as neither the Trustees, officers, agents or
shareholders assume any personal liability for obligations entered into on
behalf of the Trust. No series of the Trust shall be liable for any claims
against any other series of the Trust.
13. CONFIDENTIALITY. You shall maintain all non-public information regarding
the Fund's portfolio, including the list of portfolio securities held by
the Fund, which you receive or have access to in the course of performing
your duties hereunder as strictly confidential. You shall not disclose or
disseminate such non-public information to any third party unless such
disclosure is approved in writing by the Fund. You shall not use non-public
information regarding the Fund's portfolio as a basis to place or recommend
any securities transactions for yourself or any third party.
If you are in agreement with the foregoing, please sign the form of acceptance
on the accompanying counterpart of this letter and return such counterpart to
the Trust, whereupon this letter shall become a binding contract.
HARBOR FUND ON BEHALF OF
HARBOR SMALL COMPANY GROWTH FUND
By:
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇, President
The foregoing Agreement is hereby accepted as of the date thereof.
HARBOR CAPITAL ADVISORS, INC.
By:
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Executive Vice
President
5
