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EXHIBIT 99.h
TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the ___ day of June, 2001, by and between HARBOR
FUND, a Delaware business trust, having its principal office and place of
business at One XxxXxxx, Xxxxxx, Xxxx 00000 (the "Fund"), and HARBOR TRANSFER,
INC., a Delaware corporation having its principal office and place of business
at One XxxXxxx, Xxxxxx, Xxxx 00000 (the "Agency").
WHEREAS, the Fund desires to appoint the Agency as its transfer agent,
dividend disbursing agent and shareholder servicing agent in connection with
certain other activities, and the Agency desires to accept such appointment;
WHEREAS, the Fund is authorized to issue shares in separate series,
with shares of each such series representing interests in a separate portfolio
of securities and other assets; and
WHEREAS, the Fund intends to offer shares of twelve series, (such
series, together with all other series subsequently established by the Fund and
made subject to this Agreement in accordance with Article 8, shall each be
referred to as the "Fund" unless the context requires otherwise);
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
ARTICLE 1
TERMS OF APPOINTMENT; DUTIES OF THE AGENCY
1.01 Subject to the terms and conditions set forth in this Agreement, the
Fund hereby, appoints the Agency to act as, and the Agency hereby
agrees to act as, transfer agent for the Fund's authorized and issued
shares of beneficial interest ("Shares"), dividend disbursing agent and
shareholder servicing agent in connection with any accumulation,
open-account or similar plans provided to the shareholders of the Fund
("Shareholders") and set out in the Prospectus (which term when used in
this Agreement includes the Statement of Additional Information) of the
Fund as now in effect or as hereafter amended or supplemented from time
to time without written objection by the Agency or as mutually agreed
upon from time to time.
1.02 The Agency agrees that it will perform the following services:
(a) In accordance with procedures established from time to time by
agreement between the Fund and the Agency, the Agency shall:
(i) receive for acceptance, orders for the purchase of
Shares, and promptly deliver payment and appropriate
documentation therefore to the Custodian of the Fund
authorized pursuant to the Declaration of Trust of
the Fund (the "Custodian");
(ii) pursuant to orders for the purchase of Shares, record
the purchase of the appropriate number of Shares in
the Shareholder's account;
(iii) pursuant to instructions provided by Shareholders,
reinvest income dividends and capital gain
distributions;
(iv) receive for acceptance, redemption and repurchase
requests and directions, and deliver the appropriate
documentation therefor to the Custodian;
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(v) at the appropriate time as and when it receives
monies paid to it by the Custodian with respect to
any redemption and repurchase, pay over or cause to
be paid over in the appropriate manner such monies as
instructed by the redeeming Shareholders;
(vi) effect transfers of Shares by the registered owners
thereof upon receipt of appropriate instructions;
(vii) prepare and transmit payments for dividends and
distributions declared by the Fund;
(viii) maintain records of account for and advise the Fund
and its Shareholders as to the foregoing;
(ix) record the issuance of Shares of the Fund and
maintain pursuant to SEC Rule 17 Ad-10(e) under the
Securities Exchange Act of 1934 a record of the total
number of Shares of the Fund which are authorized,
based upon data provided to it by the Fund, and
issued and outstanding. The Agency shall also provide
the Fund on a regular basis with the total number of
Shares which are authorized and issued and
outstanding and shall have no obligations, when
recording the issuance of Shares, to monitor the
issuance of such Shares or to take cognizance of any
laws relating to the issue or sale of such Shares,
which functions shall be the sole responsibility of
the Fund;
(x) provide an appropriate response to Shareholders with
respect to all correspondence and rejected trades;
(xi) report abandoned property to the various states as
authorized by the Fund in accordance with policies
and principles agreed upon by the Fund and Agency;
(xii) respond to all correspondence and inquiries from
Shareholders or their authorized representatives
regarding the status of Shareholder accounts or
information related to Shareholder accounts;
(xiii) perform all Shareholder account maintenance updates;
and
(xiv) maintain such records as shall enable the Fund to
fulfill the requirements of any report which must be
filed with the Securities and Exchange Commission.
(b) In addition to and not in lieu of the services set forth in
the above paragraph (a), the Agency shall:
(i) perform all of the customary services of a transfer
agent, dividend disbursing agent and, as relevant,
shareholder servicing agent in connection with
accumulation, open-account or similar plans,
(including without limitation any periodic investment
plan or periodic withdrawal program); including but
not limited to: maintaining all Shareholder accounts,
preparing Shareholder meeting lists, withholding all
applicable taxes (including but not limited to all
withholding taxes imposed under the U.S. Internal
Revenue Code and Treasury regulations promulgated
thereunder, and applicable state and local laws to
the extent consistent with good industry practice),
preparing and filing IRS Forms when applicable and
other appropriate forms required with respect to
dividends,
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distributions and taxes withheld on Shareholder
accounts by federal authorities for all registered
Shareholders, preparing and distributing confirmation
statements and statements of account to Shareholders
for all purchases, redemption and repurchases of
Shares and other confirmable transactions in
Shareholder accounts, preparing and distributing
activity statements for Shareholders, and providing
Shareholder account information; and
(ii) provide daily and monthly a written report and access
to information which will enable the Fund to monitor
the total number of Shares sold and the aggregate
public offering price thereof in each State by the
Fund, added by sales in each State of the registered
Shareholder or dealer branch office as defined by the
Fund. If directed by the Fund, each confirmation of
the purchase which establishes a new account will be
accompanied by a prospectus and any amendments or
supplements thereto.
(c) The Fund shall:
(i) identify to the Agency in writing those transactions
and assets to be treated as exempt from the blue sky
reporting for each State; and
(ii) verify the establishment of transactions for each
State on the system prior to activation and
thereafter monitor the daily activity for each State.
The responsibility of the Agency for the Fund's blue
sky registration status is solely limited to the
initial establishment of transactions subject to blue
sky compliance by the Fund and the reporting of such
transactions to the Fund as provided above.
(d) Additionally, the Agency shall:
(i) utilize a system to identify all share transactions
which involve purchase, redemption and repurchase
orders that are processed at a time other than the
time of the computation of net asset value per share
next computed after receipt of such orders, and shall
compute the net effect upon the Fund of such
transactions so identified on a daily and cumulative
basis;
(ii) promptly make a payment to the Fund in cash in such
amount as is necessary to reduce the negative
cumulative net effect to zero, if upon any day the
cumulative net effect of such transactions upon the
Fund is negative and exceeds a dollar amount
equivalent to 1/2 of 1 cent per outstanding share;
(iii) bring the cumulative net effect upon the Fund to
zero, if on the last business day of a month that is
the last month in the Fund's fiscal half-year or
fiscal year, a cumulative negative net effect upon
the Fund of 1/2 of 1 cent per outstanding share or
less exists, or a cumulative positive net effect upon
the Fund of any amount exists;
(iv) supply to the Fund from time to time, as mutually
agreed upon, reports summarizing the transactions
identified pursuant to paragraph (i) above, and the
daily and cumulative net effects of such
transactions, and shall advise the Fund at the end of
its fiscal half-year and fiscal year of the net
cumulative effect at such time;
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(v) promptly advise the Fund if at any time the
cumulative net effect exceeds a dollar amount
equivalent to 2/5's of 1 cent per outstanding share
and 1/2 of 1 cent per outstanding share.
This provision 1.02(d) of the Agreement may be terminated by the Agency
at any time without cause, effective as of the close business on the
date written notice is received by the Fund. Procedures applicable to
certain of these services may be established from time to time by
agreement between the Fund and the Agency.
Procedures applicable to certain of these services may be established
from time to time by agreement between the Fund and the Agency.
ARTICLE 2
FEES AND EXPENSES
2.01 For performance by the Agency pursuant to this Agreement, the Fund
agrees to pay the Agency an annual maintenance fee for each Shareholder
account as set out in the fee schedule attached hereto, as may be
amended from time to time. Such fees and out-of-pocket expenses
identified under Section 2.02 below may be changed from time to time
subject to a mutual written agreement between the Fund and the Agency.
2.02 Any other expenses incurred by the Agency at the request or with the
consent of the Fund, will be reimbursed by the Fund.
2.03 The Fund may engage accounting firms or other consultants to evaluate
the fees paid by the Fund and the quality of services rendered by the
Agency hereunder, and such firms or other consultants shall be provided
access by the Agency to such information as may be reasonably required
in connection with such engagement. The Agency will give due
consideration and regard to the recommendations to the Fund in
connection with such engagement, but shall not be bound thereby.
ARTICLE 3
REPRESENTATION AND WARRANTIES OF THE AGENCY
3.01 The Agency represents and warrants to the Fund that:
(a) it is a Delaware corporation duly organized and existing and
in good standing under the laws of the State of Delaware;
(b) it has the legal power and authority to carry on its business
in the states of Delaware and Ohio;
(c) it is empowered under applicable laws and by its charter and
its By-Laws to enter into and to perform this Agreement;
(d) all requisite corporate proceedings have been taken to
authorize it to enter into and to perform this Agreement;
(e) it is duly registered as a transfer agent under Section 17A of
the Securities Exchange Act of 1934, as amended; and
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(f) it has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and
obligations under this Agreement.
ARTICLE 4
REPRESENTATION AND WARRANTIES OF THE FUND
4.01 The Fund represents and warrants to the Agency that:
(a) it is a business trust duly organized and existing under the
laws of the State of Delaware;
(b) it is empowered under applicable laws and by its Declaration
of Trust and By-Laws to enter into and to perform this
Agreement;
(c) all proceedings of the Trustees or otherwise required by said
Declaration of Trust and By-Laws have been taken to authorize
it to enter into and to perform this Agreement;
(d) it is an open-ended investment company registered under the
Investment Company Act of 1940, as amended; and
(e) a registration statement under the Securities Act of 1933, as
amended, is currently effective and will remain effective, and
appropriate state securities law filings have been made and
will continue to be made, with respect to all Shares of the
Fund being offered for sale.
ARTICLE 5
INDEMNIFICATION
5.01 To the extent the Agency acts in good faith and without negligence or
willful misconduct, the Agency will not be responsible for, and the
Fund shall indemnify and hold the Agency harmless from and against, any
and all losses, damages, costs, charges, counsel fees, payments,
expenses and liability arising out of or attributable to:
(a) All actions of the Agency or its agents or subcontractors
required to be taken pursuant to this Agreement;
(b) The Fund's refusal or failure to comply with the terms of this
Agreement, or which arise out of the Fund's lack of good
faith, negligence or willful misconduct or which arise out of
the breach of any representation or warranty of the Fund
hereunder;
(c) The reasonable reliance on or use by the Agency or its agents
or subcontractors of information, records and documents which:
(i) are received by the Agency or its agents or
subcontractors and furnished to it by or on behalf of
the Fund; and
(ii) have been prepared and/or maintained by the Fund or
any other person or firm (except the Agency) on
behalf of the Fund;
(d) The reasonable reliance on, or the carrying out of, by the
Agency or its agents or subcontractors, any instructions or
requests of the Fund or any person acting on behalf of the
Fund; and
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(e) The offer or sales of Shares in violation of any
requirement under the federal securities laws or regulations,
or the securities laws or regulations of any state that such
Shares be registered in such state, or in violation of any
stop order or other determination or ruling by any federal
agency or any state with respect to the offer or sale of such
Shares in such state, unless such violation is the result of
the Agency's negligent or willful failure to comply with the
provisions of Section 1.02(b) of this Agreement.
5.02 The Agency shall indemnify and hold the Fund harmless from and against
any and all losses, damages, costs, charges, counsel fees, payments,
expenses and liability arising out of or attributable to any action or
failure or omission to act by the Agency as a result of the Agency's
lack of good faith, negligence or willful misconduct.
5.03 At any time the Agency may apply to any officer of the Fund for
instructions, and may consult with legal counsel (which may be counsel
to the Fund) with respect to any matter arising in connections with the
services to be performed by the Agency under this Agreement, and the
Agency and its agents or subcontractors shall not be liable and shall
be indemnified by the Fund for any action taken or omitted by it in
reliance upon such instructions or upon the opinion of such counsel.
The Agency, its agents and subcontractors shall be protected and
indemnified in acting upon any paper or document furnished by or on
behalf of the Fund, reasonably believed to be genuine and to have been
signed by the proper person or persons, or upon any instruction,
information, data, records or documents provided the Agency or its
agents or subcontractors as authorized by the Fund, and shall not be
held to have notice of any change of authority of any person, until
receipt of written notice thereof from the Fund.
5.04 In the event either party is unable to perform its obligations under
the terms of this Agreement because of acts of God, strikes, equipment
or transmission failure or damage reasonably beyond its control, or
other causes reasonably beyond its control, such party shall not be
liable for damages to the other for any damages resulting from such
failure to perform or otherwise from such causes.
5.05 Neither party to this Agreement shall be liable to the other party for
consequential damages under any provision of this Agreement or for any
act or failure to act hereunder, but each shall be liable for general
damages resulting from breach of this Agreement. For the purposes of
this Agreement, the term "general damages" shall include but shall not
be limited to:
(a) All costs of correcting errors made by the Agency or its
agents or subcontractors in Shareholder accounts, including
the expense of computer time, computer programming and
personnel;
(b) Amounts which the Fund is liable to pay to a person (or such
person's representative) who has purchased or redeemed, or
caused to be repurchased, Shares at a price which is higher,
in the case of a redemption or repurchase, than correct net
asset value per Share, but only to the extent that the price
at which Shares were purchased, redeemed or repurchased was
incorrect as a result of either:
(i) one or more errors caused by the Agency or its agents
or subcontractors in processing Shareholder accounts
of the Fund; or
(ii) the posting by the Agency of the purchase, redemption
of repurchase of Shares subsequent to the time such
purchase, redemption or repurchase should have been
posted pursuant to laws and regulations applicable to
open-end investment companies, if the delay is caused
by the Agency, its agents or subcontractors;
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(c) The value of dividends and distributions which were not
credited on Shares because of the failure of the Agency or its
agents or subcontractors to timely post the purchase of such
Shares;
(d) The value of dividends and distributions which were
incorrectly credited on Shares because of the failure of the
Agency or its agents or subcontractors to timely post the
redemption or repurchase of such Shares;
(e) The value of dividends and distributions, some portion of
which was incorrectly credited, or was not credited, on Shares
because of the application by the Agency or its agents or
subcontractors of an incorrect dividend or distribution factor
or otherwise;
(f) Penalties and interest which the Fund is required to pay
because of failure of the Agency or its agents or
subcontractors to comply with the information reporting and
withholding (including backup withholding) requirements of the
Internal Revenue Code of 1986, as amended, and applicable
Treasury regulations thereunder, applicable to Shareholder
accounts; and
(g) Interest in accordance with the laws of the State of Ohio on
any damages from the date of the breach of this Agreement.
5.06 In order that the indemnification provisions contained in this Article
5 shall apply, upon the assertion of a claim for which either party may
be required to indemnify the other, the party seeking indemnification
shall promptly notify the other party of such assertion, and shall keep
the other party advised with respect to all developments concerning
such claim. The party who may be required to indemnify shall have the
option at its expense to participate with the party seeking
indemnification in the defense of such claim. The party seeking
indemnification shall in no case confess any claim or make any
compromise in any case in which the other party may be required to
indemnify it excepts with the other party's written consent, which
shall not be unreasonably withheld.
ARTICLE 6
COVENANTS OF THE FUND AND THE AGENCY
6.01 The Fund shall promptly furnish to the Agency 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 authorizing
the appointment of the Agency and approving the form of this
Agreement.
6.02 The Agency hereby agrees to establish and maintain facilities and
procedures reasonably acceptable to the Fund for safekeeping of check
forms and facsimile signature imprinting devices, if any; and for the
preparation or use, and for keeping account of, such forms and devices.
6.03 The Agency shall keep records relating to the services performed
hereunder, in the form and manner as it may deem advisable. To the
extent required by Section 31 of the Investment
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Company Act of 1940, as amended, and the Rules thereunder, the Agency
agrees that all such records prepared or maintained by the Agency
relating to the services to be performed by the Agency hereunder and
those records that the Fund and the Agency agree from time to time to
be records of the Fund are the property of the Fund and will be
preserved, maintained and made available in accordance with such
Section and Rules, and will be surrendered to the Fund promptly on and
in accordance with its request.
6.04 The Agency and the Fund agree that all books, records, information and
data pertaining to the business of the other party which are exchanged
or received pursuant to the negotiation or the carrying out of this
Agreement shall remain confidential, and shall not be voluntarily
disclosed to any other person, except as may be required by law.
6.05 In case of any requests or demands for the inspection of the
Shareholder records of the Fund, the Agency will endeavor to notify the
Fund and to secure instructions from an authorized officer of the Fund
as to such request or inspection. The Agency reserves the right,
however, to exhibit the Shareholder records to any person whenever it
is reasonably advised by the counsel (which may be counsel to the Fund)
that it may be held liable for the failure to exhibit the Shareholder
records to such person.
6.06 The Agency agrees to maintain disaster recovery capabilities or a
compatible configuration and to backup the Fund's master and input
files and to store such files in a secure off-premises location so that
in the event of a power failure or other interruption from whatever
cause at its principal place of business, the Fund's records are
maintained intact, and transactions can be processed at another
location.
6.07 The Agency acknowledges that the Fund, as a registered investment
company under the Investment Company Act of 1940, is subject to the
provisions of the Investment Company Act of 1940 and the rules and
regulation thereunder, and that the offer and sale of the Fund's Shares
are subject to the provisions of federal and state laws and regulations
applicable to the offer and sale of securities. The Fund acknowledges
that the Agency is not responsible for the Fund's compliance with such
laws and regulations. If the Fund advises the Agency that a procedure
of the Agency related to the discharge of its obligations hereunder has
or may have effect of causing the Fund to violate any of such laws or
regulations, the Agency shall use its best efforts to develop a
mutually agreeable alternative procedure which does not have such
effect.
ARTICLE 7
TERMINATION OF AGREEMENT
7.01 This Agreement may be terminated by either party upon one hundred
twenty (120) days written notice to the other.
7.02 Should the Fund exercise its right to terminate this Agreement, all
out-of-pocket expenses associated with the movement of records and
materials will be borne by the Fund. Additionally, the Agency reserves
the right to charge for any other reasonable expenses associated with
such termination and/or a charge equivalent to the average of the most
recent three (3) months' fees.
ARTICLE 8
ADDITIONAL SERIES
8.01 In the event that the Fund establishes additional series of Shares with
respect to which it desires to have the Agency render services as
transfer agent under the terms hereof, the Agency and the Fund shall
mutually agree in writing to have the Agency provide services to such
additional
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series hereunder, and the term "Fund" hereunder, unless the context
otherwise requires, shall be deemed to refer to each such series of
Shares. All recordkeeping and reporting shall be done separately for
each series. Unless the Fund and the Agency agree to an amended fee
schedule, the fee schedule attached hereto shall apply to each series
separately.
ARTICLE 9
ASSIGNMENT
9.01 This Agreement, including any rights or obligations hereunder, may not
be assigned by either party without the prior written consent of the
other party.
9.02 This Agreement shall inure to the benefit of and be binding upon the
parties and their respective permitted successors and assigns.
ARTICLE 10
AMENDMENT
10.01 This Agreement may be amended or modified by a written agreement
executed by both parties and authorized or approved by a resolution of
the Trustees of the Fund and the Directors of the Agency.
ARTICLE 11
GOVERNING LAW
11.01 This Agreement shall be governed by and construed in accordance with
the laws of the State of Ohio.
ARTICLE 12
MISCELLANEOUS
12.01 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 person 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.
12.02 This Agreement constitutes the entire agreement between the parties
hereto and supersedes any prior agreement with respect to the subject
hereof whether oral or written.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf under their seals by and through
their duly authorized officers, as of the day and year first above written.
HARBOR FUND HARBOR TRANSFER, INC.
By: By:
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Xxxxx X. Xxxxxxxx, President Xxxxxxxxx X. Xxxxxxx, President
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TRANSFER AGENCY AND SERVICE AGREEMENT
FEE SCHEDULE
EFFECTIVE JUNE ___, 2001
Fee Schedule for Services as Transfer Agent, Dividend Disbursing Agent and
Shareholder Servicing Agent for the following Funds:
Harbor Mid Cap Growth Fund
Harbor Growth Fund
Harbor Small Cap Growth Fund
Harbor International Growth Fund
Harbor Global Equity Fund
Harbor Capital Appreciation Fund
Harbor International Fund II
Harbor International Fund
Harbor Value Fund
Harbor Bond Fund
Harbor Short Duration Fund
Harbor Money Market Fund
Fees are based on an annual per shareholder account charge for account
maintenance. Fees are billable on a monthly basis at a rate of 1/12 of the
annual fee. A charge is made for an account beginning in the month that an
account opens and continues monthly until the account is closed.
The annual maintenance fee is $45 per account, per year, per Fund.
There shall be a minimum fee payment in the amount of $1,000 per month, per
Fund.
All mass mailings to shareholders shall be the responsibility of the Fund,
except that Harbor Transfer, Inc. shall provide the Fund with the appropriate
mailing labels.
HARBOR FUND ON BEHALF OF HARBOR TRANSFER, INC.
HARBOR MID CAP GROWTH FUND
HARBOR GROWTH FUND
HARBOR SMALL CAP GROWTH FUND By:
HARBOR INTERNATIONAL GROWTH FUND -------------------------------
HARBOR GLOBAL EQUITY FUND Xxxxxxxxx X. Xxxxxxx, President
HARBOR CAPITAL APPRECIATION FUND
HARBOR INTERNATIONAL FUND II
HARBOR INTERNATIONAL FUND
HARBOR VALUE FUND
HARBOR BOND FUND
HARBOR SHORT DURATION FUND
HARBOR MONEY MARKET FUND
By:
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Xxxxx X. Xxxxxxxx, President
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