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EXHIBIT 6
June 25, 1993
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 (the "Shares"), of seven series. 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 the State, dated June 8, 1993, as
amended from time to time.
(b) By-Laws of the Fund as in effect on the date hereof.
(c) Resolutions of the Board of Trustees of the Fund
selecting you as principal underwriter and approving
this form of 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, if any.
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DISTRIBUTION AGREEMENT
HCA SECURITIES, INC.
JUNE 25, 1993
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 currently 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
to the public of Shares 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 SHARE 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 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.
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DISTRIBUTION AGREEMENT
HCA SECURITIES, INC.
JUNE 25, 1993
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, determined,
in the manner provided in the Fund's registration statements as from time
to time 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 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 it 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) of preparing, 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;
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DISTRIBUTION AGREEMENT
HCA SECURITIES, INC.
JUNE 25, 1993
(4) of preparing, 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) of any issue taxes or any initial transfer taxes;
(7) of XXXXX (or equivalent) telephone lines other than the
portion allocated to you in this paragraph 9;
(8) of 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) of the cost of printing and postage of business reply
envelopes sent to Fund shareholders;
(10) of one or more CRT terminals connected with the
computer facilities of the transfer agent other than
the portion allocated to you in this paragraph 9;
(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) of the expense of 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) of printing and distributing any prospectuses or
reports prepared for your use in connection with the
offering of Shares to the public;
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DISTRIBUTION AGREEMENT
HCA SECURITIES, INC.
JUNE 25, 1993
(2) of preparing, setting in type, printing and mailing an other
literature used by you in connection with the offering of Shares to the
public;
(3) advertising in connection with the offering of Shares to the
public;
(4) incurred in connection with your registration as a broker or
dealer or the registration or qualification of your officers, directors,
agents representatives under Federal and state laws;
(5) of that portion of XXXXX (or equivalent) telephone lines,
allocated to you on the basis of use by investors (but not shareholders)
who request information or prospectuses;
(6) of 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 (b) (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
(9) of that portion of one or more CRT 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 as 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.
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DISTRIBUTION AGREEMENT
HCA SECURITIES, INC.
JUNE 25, 1993
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
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DISTRICUTION AGREEMENT
HCA SECURITIES, INC.
JUNE 25, 1993
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 indemnity agreement
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 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 with the issue and sale of any of 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
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DISTRIBUTION AGREEMENT
HCA SECURITIES, INC.
JUNE 25, 1993
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
issuance of 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 registration statement
(including a prospectus or statement of additional information) covering
Shares, as such registration statement and prospectus 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
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DISTRIBUTION AGREEMENT
HCA SECURITIES, INC.
JUNE 25, 1993
by a vote of the Board of Trustees or of a majority of the outstanding
voting securities of the Fund. This Agreement may, on 60 days written
notice, be terminated at any time without the payment of any penalty, by
the Board of Trustees of the Fund, by a vote of a majority of the
outstanding voting securities of the Fund, or by you. This Agreement will
automatically terminate in the event of its assignment. In interpreting
the provisions of this paragraph 14, the definitions contained in Section 2
(a) of the 1940 Act (particularly the definitions of "interested person,"
"assignment" and "majority of the outstanding voting securities"), as
modified by any applicable order of the Securities and Exchange Commission,
shall be applied.
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.
The name "Harbor Fund" is the designation of the Trustees for the time
being under a 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 or shareholders assume any personal
liability for obligations
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DISTRIBUTION AGREEMENT
HCA SECURITIES, INC.
JUNE 25, 1993
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.
Very truly yours,
HARBOR FUND
By /s/ Xxxxxxxxx X. Xxxxxxx
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Title: Secretary/Treasurer
The foregoing Agreement is hereby accepted as of the date thereof.
HCA SECURITIES, INC.
By /s/ Xxxxxx X. Xxxxxx
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Title: President
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