EXHIBIT 99.e
April 8, 2002
HCA Securities, Inc.
One XxxXxxx
Xxxxxx, Xxxx 00000
DISTRIBUTION AGREEMENT
Dear Sirs:
Harbor Fund (hereinafter called the "Fund") is a business trust organized under
the laws of Delaware and is engaged in the business of an investment company.
The authorized capital of the Fund consists of an unlimited number of shares of
beneficial interest, par value $.01, divided into one or more classes (the
"Shares"), of each series of the Fund listed on Exhibit A to this Agreement.
Shares may be divided into additional series of the Fund ("Series") that may be
established from time to time by action of the Trustees. The Fund has selected
you to act as principal underwriter (as such term is defined in Section 2 (a)
(29) of the Investment Company Act of 1940, as amended (the "1940 Act") of the
Shares and you are willing to act as the principal underwriter and to perform
the duties and functions of underwriter in the manner and on the terms and
conditions hereinafter set forth. Accordingly, the Fund hereby agrees with you
as follows:
1. DELIVERY OF DOCUMENTS: The Fund has furnished you with copies properly
certified or authenticated of each of the following:
(a) Declaration of Trust of the Fund filed with the Delaware
Secretary of State, dated June 8, 1993, as amended from time
to time (the "Declaration of Trust").
(b) By-Laws of the Fund as in effect on the date hereof (the
"By-Laws").
(c) Resolutions of the Board of Trustees of the Fund selecting you
as principal underwriter and approving the form of this
Agreement.
The Fund 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.
DISTRIBUTION AGREEMENT
HCA SECURITIES, INC.
APRIL 8, 2002
The Fund will furnish you promptly with properly certified or
authenticated copies of any registration statement filed by it with the
Securities and Exchange Commission under the Securities Act of 1933, as
amended, (the "1933 Act") or the 1940 Act, together with any financial
statements and exhibits included therein, and all amendments or
supplements thereto hereafter filed.
2. REGISTRATION AND SALE OF ADDITIONAL SHARES: The Fund will from time to
time use its best efforts to register under the 1933 Act such number of
Shares not already so registered as you may reasonably be expected to
sell on behalf of the Fund. You and the Fund will cooperate in taking
such action as may be necessary from time to time to qualify Shares so
registered for sale by you or the Fund in any states mutually agreeable
to you and the Fund, and to maintain such qualification. This Agreement
related to the issue and sale of Shares that are duly authorized and
registered and available for sale by the Fund, including redeemed or
repurchased Shares if and to the extent that they may be legally sold
and if, but only if, the Fund sees fit to sell them.
3. SALE OF SHARES: Subject to the provisions of paragraphs 5 and 7 hereof
and to such minimum purchase requirements as may from time to time be
indicated in the Fund's Prospectus or Statement of Additional
Information, you are authorized to sell as agent on behalf of the Fund
Shares authorized for issue and registered under the 1933 Act. You may
also purchase as principal Shares for resale to the public. Such sales
will be made by you on behalf of the Fund by accepting unconditional
orders to purchase Shares placed with you by investors and such
purchases will be made by you only after acceptance by you of such
orders. The sales price of Shares to the public shall be the public
offering price as defined in paragraph 6 hereof.
4. SOLICITATION OF ORDERS: You will use your best efforts (but only in
states in which you may lawfully do so) to obtain from investors
unconditional orders for Shares authorized for issue by the Fund and
registered under the 1933 Act, provided that you may in your discretion
refuse to accept orders for Shares from any particular applicant.
5. SALE OF SHARES BY THE FUND: Unless you are otherwise notified by the
Fund, any right granted to you to accept order for Shares or to make
sales on behalf of the Fund or to purchase Shares for resale will not
apply to (i) Shares issued in connection with the merger or
consolidation of any other investment company with the Fund or its
acquisition, by purchase or otherwise, of all or substantially all of
the assets of any investment company or substantially all the
outstanding shares of any such company, and (ii) to Shares that may be
offered by the Fund to shareholders of the Fund by virtue of their
being shareholders.
6. PUBLIC OFFERING PRICE: All Shares sold to investors by you will be sold
at the public offering price. The public offering price for all
accepted subscriptions will be the net asset value per Share, as
determined in the manner provided in the Fund's registration statements
and in effect under the 1933 Act and the 1940 Act, next after the order
is accepted by you.
7. SUSPENSION OF SALES: If and whenever the determination of net asset
value is suspended and until such suspension is terminated, no further
orders for Shares shall be accepted by you except unconditional orders
placed with you before you had knowledge of the suspension. In
addition, the Fund reserves the right to suspend sales and your
authority to accept orders for Shares on behalf of the Fund if, in the
judgment of a majority of the Board of Trustees, or a majority of the
Executive Committee of such Board, if such body exists, it is in the
best interest of the Fund to do so, such suspension to continue for
such period as may be determined by such majority; and in that event,
no Shares will be sold by you on behalf of the Fund while such
suspension remains
2
DISTRIBUTION AGREEMENT
HCA SECURITIES, INC.
APRIL 8, 2002
in effect except for Shares necessary to cover unconditional orders
accepted by you before you had knowledge of the suspension.
8. PORTFOLIO SECURITIES: Portfolio securities of the Fund may be bought or
sold by or through you and you may participate directly or indirectly
in brokerage commissions or "spread" in respect of transactions in
portfolio securities of the Fund.
9. EXPENSES:
(a) The Fund will pay (or will enter into arrangements providing
that parties other than you will pay) all fees and expenses:
(1) in connection with the preparation, setting in type
and filing of any registration statement (including a
prospectus and statement of additional information)
under the 1933 Act or the 1940 Act, or both, and any
amendments or supplements thereto that may be made
from time to time;
(2) in connection with the registration and qualification
of Shares for sale in the various jurisdictions in
which the Fund shall determine is advisable to
qualify such Shares for sale (including registering
the Fund as a broker or dealer or any officer of the
Fund or other person as agent or salesman of the Fund
in any such jurisdictions);
(3) in connection with the preparation, setting in type,
printing and mailing any notice, proxy statement,
report, prospectus and other communication to
shareholders of the Fund in their capacity as such;
(4) in connection with the preparation, setting in type,
printing and mailing prospectuses annually, and any
supplements thereto, to existing shareholders;
(5) in connection with the issue and transfer of Shares
resulting from the acceptance by you of orders to
purchase Shares placed with you by investors,
including the expenses of printing and mailing
confirmations of such purchase orders and the
expenses of printing and mailing a prospectus
included with the confirmation of such orders;
(6) in connection with any issue taxes or any initial
transfer taxes;
(7) in connection with the telephone lines other than the
portion allocated to you in this paragraph 9;
(8) in connection with wiring funds in payment of Share
purchases or in satisfaction of redemption or
repurchase requests, unless such expenses are paid
for by the investor or shareholder who initiates the
transaction;
(9) in connection with the cost of printing and postage
of business reply envelopes sent to Fund
shareholders;
(10) of one or more terminals connected with the computer
facilities of the transfer agent other than the
portion allocated to you in this paragraph 9;
3
DISTRIBUTION AGREEMENT
HCA SECURITIES, INC.
APRIL 8, 2002
(11) permitted to be paid or assumed by the Fund pursuant
to a plan ("12b-1 Plan"), if any, adopted by the Fund
in conformity with the requirements of Rule 12b-1
under the 1940 Act ("Rule 12b-1") or any successor
rule, notwithstanding any other provision to the
contrary herein;
(12) in connection with the preparation, setting in type,
printing and postage of the periodic newsletter to
shareholders other than the portion allocated to you
in this paragraph 9; and
(13) of the salaries and overhead of persons employed by
you as shareholder representatives other than the
portion allocated to you in this paragraph 9.
(b) You shall pay or arrange for the payment of all fees and
expenses:
(1) in connection with the printing and distributing any
prospectuses or reports prepared for your use in
connection with the offering of Shares to the public;
(2) in connection with the preparation, setting in type,
printing and mailing any other literature used by you
in connection with the offering of Shares to the
public;
(3) of advertising in connection with the offering of
Shares to the public;
(4) in connection with your registration as a broker or
dealer or the registration or qualification of your
officers, directors, agents or representatives under
federal and state laws;
(5) in connection with that portion of telephone lines,
allocated to you on the basis of use by investors
(but not shareholders) who request information or
prospectuses;
(6) in connection with that portion of the expense of
setting in type, printing and postage of the periodic
newsletter to shareholders attributable to
promotional material included in such newsletter at
your request concerning investment companies other
than the Fund or concerning the Fund to the extent
you are required to assume the expense thereof
pursuant to paragraph 9(a)(12), except such material
which is limited to information, such as listings of
other investment companies and their investment
objectives, given in connection with the exchange
privilege as from time to time described in the
Fund's prospectus;
(7) of that portion of the salaries and overhead of
persons employed by you as shareholder
representatives attributable to the time spent by
such persons in responding to requests from
investors, but not shareholders, for information
about the Fund;
(8) of any activity which is primarily intended to result
in the sale of Shares, unless a 12b-1 Plan shall be
in effect which provides that the Fund shall bear
some or all of such expenses, in which case the Fund
shall bear such expenses in accordance with such
Plan; and
4
DISTRIBUTION AGREEMENT
HCA SECURITIES, INC.
APRIL 8, 2002
(9) of that portion of one or more terminals connected
with the computer facilities of the transfer agent
attributable to your use of such terminal(s) to gain
access to such of the transfer agent's records that
also serve as your records.
Expenses which are to be allocated between you and the Fund shall be
allocated pursuant to reasonable procedures or formulae mutually agreed
upon from time to time, which procedures or formulae shall to the
extent practicable reflect studies of relevant empirical data.
10. CONFORMITY WITH LAW: You agree that in selling Shares you will duly
conform in all respects with the laws of the United States and any
state in which Shares may be offered for sale by you pursuant to this
Agreement and to the rules and regulations of the National Association
of Securities Dealers, Inc., of which you are a member.
11. INDEPENDENT CONTRACTOR: You shall be an independent contractor and
neither you nor any of your officers or employees is or shall be an
employee of the Fund in the performance of your duties hereunder. You
shall be responsible for your own conduct and the employment, control
and conduct of your agents and employees and for injury to such agents
or employees or to others through your agents or employees. You assume
full responsibility for your agents and employees under applicable
statutes and agree to pay all employee taxes thereunder.
12. INDEMNIFICATION: You agree to indemnify and hold harmless the Fund, and
each of its Trustees and officers and each person, if any, who controls
the Fund within the meaning of Section 15 of the 1933 Act, against any
and all losses, claims, damages, liabilities of litigation (including
legal and other expenses) to which the Fund or such Trustees, officers,
or controlling person may become subject under such Act, under any
other statute, at common law or otherwise, arising out of the
acquisition of any Shares by any person which (i) may be based upon any
wrongful act by you or any of your employees of representatives, or
(ii) may be based upon any untrue statement or alleged untrue statement
of a material fact contained in a registration statement (including a
prospectus or statement of additional information) covering Shares or
any amendment thereof or supplement thereto or the omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statement therein not misleading if such
statement or omission was made in reliance upon information furnished
to the Fund by you, or (iii) may be incurred or arise by reason of your
acting as the Fund's agent instead of purchasing and reselling Shares
as principal in distributing the Shares to the public, provided,
however, that in no case (i) is your indemnity in favor of a Trustee or
officer or any other person deemed to protect such Trustee or officer
or other person against any liability to which any such person would
otherwise be subject by reason of willful misfeasance, bad faith, or
gross negligence in the performance of his duties or by reason of his
reckless disregard of obligations and duties under this Agreement or
(ii) are you to be liable under your indemnity agreement contained in
this paragraph with respect to any claim made against the Fund or any
person indemnified unless the Fund or such person, as the case may be,
shall have notified you in writing within a reasonable time after the
summons or other first legal process giving information of the nature
of the claims shall have been served upon the Fund or upon such person
(or after the Fund or such person shall have received notice of such
service on any designated agent), but failure to notify you of any such
claim shall not relieve you from any liability which you may have to
the Fund or any person against whom such action is brought otherwise
than on account of your indemnification contained in this paragraph.
You shall be entitled to participate, at your own expense, in the
defense, or, if you so elect, to assume the defense of any suit brought
to enforce any such liability, but if you elect to assume the defense,
such defense shall be conducted by counsel chosen by you and
satisfactory to the Fund, to its officers and Trustees, or to any
controlling person or persons, defendant or defendants in the suit. In
the event that you elect to assume the
5
DISTRIBUTION AGREEMENT
HCA SECURITIES, INC.
APRIL 8, 2002
defense of any such suit and retain such counsel, the Fund, such
officers and Trustees or controlling person or persons, defendant or
defendants in the suit shall bear the fees and expenses of any
additional counsel retained by them, but, in case you do not elect to
assume the defense of any such suit, you will reimburse the Fund, such
officers and Trustees or controlling person or persons, defendant or
defendants in such suit for the reasonable fees and expenses of any
counsel retained by them. You agree promptly to notify the Fund of the
commencement of any litigation or proceedings against you or any of
your officers or directors in connection with the issue and sale of any
Shares.
The Fund agrees to indemnify and hold harmless you and each of your
directors and officers and each person, if any, who controls you within
the meaning of Section 15 of the 1933 Act, against any and all losses,
claims, damages, liabilities or litigation (including legal and other
expenses) to which you or such directors, officers or controlling
person may become subject under such Act, under any other statue, at
common law or otherwise, arising out of the acquisition of any Shares
by any person which (i) may be based upon any wrongful act by the Fund
or any of its employees or representatives, or (ii) may be based upon
any untrue statement or alleged untrue statement of a material fact
contained in a registration statement (including a prospectus or
statement of additional information) covering Shares or any amendment
thereof or supplement thereto or the omission or alleged omission to
state therein 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
to you by the Fund; provided, however, that in no case (i) is the
Fund's indemnity in favor of a director or officer or any other person
deemed to protect such director or officer or other person against any
liability to which any such person would otherwise be subject by reason
of willful misfeasance, bad faith, or gross negligence in the
performance of his duties or by reason of his reckless disregard of
obligations and duties under this Agreement or (ii) is the Fund to be
liable under its indemnity agreement contained in this paragraph with
respect to any claims made against you or any such director, officer or
controlling person unless you or such director, officer or controlling
person, as the case may be, shall have notified the Fund in writing
within a reasonable time after the summons or other first legal process
giving information of the nature of the claim shall have been served
upon you or upon such director, officer or controlling person (or after
you or such director, officer or controlling person shall have received
notice of such service on any designated agent), but failure to notify
the Fund of any such claim shall not relieve it from any liability
which it may have to the person against whom such action is brought
otherwise than on account of its indemnity agreement contained in this
paragraph. The Fund will be entitled to participate at its own expense
in the defense, or, if it so elects, to assume the defense of any suit
brought to enforce any such liability, but if the Fund elects to assume
the defense, such defense shall be conducted by counsel chosen by it
and satisfactory to you, your directors, officers or controlling person
or persons, defendant or defendants in the suit. In the event that the
Fund elects to assume the defense of any such suit and retain such
counsel, you, your directors, officers or controlling person or
persons, defendant or defendants in the suit, shall bear the fees and
expenses of any additional counsel retained by them, but in case the
Fund does not elect to assume the defense of any such suit, it will
reimburse you or such directors, officers or controlling person or
persons, defendant or defendants in the suit, for the reasonable fees
and expenses of any counsel retained by them. The Fund agrees promptly
to notify you of the commencement of any litigation or proceedings
against it or any of its officers or Trustees in connection with the
issue and sale of any Shares.
13. AUTHORIZED REPRESENTATIVES: The Fund is not authorized to give any
information or to make any representations on behalf of you other than
the information and representations contained in a
6
DISTRIBUTION AGREEMENT
HCA SECURITIES, INC.
APRIL 8, 2002
registration statement (including a prospectus or statement of
additional information) covering Shares, as such registration statement
may be amended or supplemented from time to time.
You are not authorized to give any information or to make any
representations on behalf of the Fund or in connection with the sale of
Shares other than the information and representations contained in a
registration statement (including a prospectus or statement of
additional information) covering Shares, as such registration statement
may be amended or supplemented from time to time. No person other than
you is authorized to act as principal underwriter (as such term is
defined in the 0000 Xxx) for the Fund.
14. DURATION AND TERMINATION OF THIS AGREEMENT: This Agreement shall become
effective upon the date first written above and will remain in effect
for a period of two years from the date hereof and from year to year
thereafter, but only so long as such continuance is specifically
approved at least annually by the vote of a majority of the Trustees
who are not interested persons of you or of the Fund, cast in person at
a meeting called for the purpose of voting on such approval and by a
vote of the Board of Trustees or of a majority of the outstanding
voting securities of the Fund. The aforesaid requirement that
continuance of this Agreement be "specifically approved at least
annually" shall be construed in a manner consistent with the Investment
Company Act of 1940 and the rules and regulations thereunder. The Board
of Trustees may on 60 days written notice, terminate this Agreement at
any time without the payment of any penalty, 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.
15. 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. If the Fund
should at any time deem it necessary or advisable in the best interests
of the Fund that any amendment of this Agreement be made in order to
comply with the recommendations or requirements of the Securities and
Exchange Commission or other governmental authority or to obtain any
advantage under state or federal tax laws and should notify you of the
form of such amendment, and the reasons therefor, and if you should
decline to assent to such amendment, the Fund may terminate this
Agreement forthwith. If you should at any time request that a change be
made in the Fund's Declaration of Trust or By-laws or in its methods of
doing business, in order to comply with any requirements of federal law
or regulations of the Securities and Exchange Commission or of a
national securities association of which you are or may be a member
relating to the sale of shares of the Fund, and the Fund should not
make such necessary change within a reasonable time, you may terminate
this Agreement forthwith.
16. GOVERNING LAW: This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio.
17. MISCELLANEOUS: 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.
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.
7
DISTRIBUTION AGREEMENT
HCA SECURITIES, INC.
APRIL 8, 2002
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 Fund must look
solely to the property of the Fund for the enforcement of any claims
against the Fund as neither the Trustees, officers, agents nor
shareholders assume any personal liability for obligations entered into
on behalf of the Fund. No series of the Fund shall be liable for any
claims against any other series of the Fund.
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 Fund, whereupon this letter shall become a
binding contract.
HARBOR FUND
By:
---------------------------------------
Xxxxx X. Xxxxxxxx, President
The foregoing Agreement is hereby accepted as of the date thereof.
HCA SECURITIES, INC.
By:
---------------------------------------
Xxxxxxxxx X. Xxxxxxx, Vice President
8
DISTRIBUTION AGREEMENT
HCA SECURITIES, INC.
APRIL 8, 2002
EXHIBIT A
FUNDS:
DOMESTIC EQUITY
1. Harbor Capital Appreciation Fund
2. Harbor Mid Cap Growth Fund
3. Harbor Growth Fund
4. Harbor Small Cap Growth Fund
5. Harbor Mid Cap Value Fund
6. Harbor Large Cap Value Fund (fka Harbor Value Fund)
7. Harbor Small Cap Value Fund
INTERNATIONAL EQUITY
8. Harbor International Fund
9. Harbor International Fund II
10. Harbor International Growth Fund
11. Harbor Global Equity Fund
FIXED INCOME
12. Harbor Bond Fund
13. Harbor Short Duration Fund
14. Harbor Money Market Fund
9
