EXHIBIT 9.2
TRANSFER AGENT AGREEMENT
THIS AGREEMENT is made and entered into on this ______ day of
___________________ 1990, by and between Brandywine Blue Fund, Inc.
(hereinafter referred to as the "Fund") and First Wisconsin Trust Company,
a corporation organized under the laws of the state of Wisconsin
(hereinafter referred to as the "Agent").
W I T N E S S E T H :
WHEREAS, the Fund is an open-ended management investment company
which is registered under the Investment Company Act of 1940; and
WHEREAS, the Agent is a trust company and, among other things, is in
the business of administering transfer and dividend disbursing agent
functions for the benefit of its customers;
NOW, THEREFORE, the Fund and the Agent do mutually promise and agree
as follows:
1. Terms of Appointment; Duties of the Agent
Subject to the terms and conditions set forth in this Agreement, the
Fund hereby employs and appoints the Agent to act as transfer agent and
dividend disbursing agent.
The Agent shall perform all of the customary services of a transfer
agent and dividend disbursing agent, and as relevant, 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:
A. Receive orders for the purchase of shares, with prompt delivery,
where appropriate, of payment and supporting documentation to
the Fund's custodian;
B. Process purchase orders and issue the appropriate number of
certificated or uncertificated shares with such uncertificated
shares being held in the appropriate shareholder account;
C. Process redemption requests received in good order and, where
relevant, deliver appropriate documentation to the Fund's
custodian;
D. Pay monies (upon receipt from the Fund's custodian, where
relevant) in accordance with the instructions of redeeming
shareholders;
E. Process transfers of shares in accordance with the shareowner's
instructions;
F. Process exchanges between funds within the same family of funds;
G. Issue and/or cancel certificates as instructed; replace lost,
stolen or destroyed certificates upon receipt of satisfactory
indemnification or surety bond;
H. Prepare and transmit payments for dividends and distributions
declared by the Fund;
I. Make changes to shareholder records, including, but not limited
to, address changes in plans (i.e., systematic withdrawal,
automatic investment, dividend reinvestment, etc.);
J. Record the issuance of shares of the Fund and maintain, pursuant
to Section Rule 17ad-10(e), a record of the total number of
shares of the Fund which are authorized, issued and outstanding;
K. Prepare shareholder meeting lists and, if applicable, mail,
receive and tabulate proxies;
L. Mail shareholder reports and prospectuses to current
shareholders;
M. Prepare and file U.S. Treasury Department forms 1099 and other
appropriate information returns required with respect to
dividends and distributions for all shareholders;
N. Provide shareholder account information upon request and prepare
and mail confirmations and statements of account to shareholders
for all purchases, redemptions and other confirmable
transactions as agreed upon with the Fund; and
O. Provide a Blue Sky System which will enable the Fund to monitor
the total number of shares sold in each state. In addition, the
Fund shall identify to the Agent in writing those transactions
and assets to be treated as exempt from the Blue Sky reporting
to the Fund for each state. The responsibility of the Agent for
the Fund's Blue Sky state registration status is solely limited
to the initial compliance by the Fund and the reporting of such
transactions to the Fund.
2. Compensation
The Fund agrees to pay the Agent for performance of the duties listed
in this Agreement; the fees and out-of-pocket expenses include, but are
not limited to the following: printing, postage, forms, stationery, record
retention, mailing, insertion, programming, labels, shareholder lists and
proxy expenses.
These fees and reimbursable expenses may be changed from time to time
subject to mutual written agreement between the Fund and the Agent.
The Fund agrees to pay all fees and reimbursable expenses within ten
(10) business days following the mailing of the billing notice.
3. Representations of Agent
Agent represents and warrants to the Fund that:
A. It is a trust company duly organized, existing and in good
standing under the laws of Wisconsin;
B. It is duly qualified to carry on its business in the state of
Wisconsin;
C. It is empowered under applicable laws and by its charter and
bylaws to enter into and perform this Agreement;
D. All requisite corporate proceedings have been taken to authorize
it to enter and perform this Agreement; and
E. It has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and
obligations under this Agreement.
4. Representations of the Fund
The Fund represents and warrants to the Agent that:
A. The Fund is an open-ended diversified investment company under
the Investment Company Act of 1940;
B. The Fund is a corporation or business trust organized, existing,
and in good standing under the laws of Maryland;
C. The Fund is empowered under applicable laws and by its Corporate
Charter and bylaws to enter into and perform this Agreement;
D. All necessary proceedings required by the Corporate Charter have
been taken to authorize it to enter into and perform this
Agreement;
E. The Fund will comply with all applicable requirements of the
Securities and Exchange Acts of 1933 and 1934, as amended, the
Investment Company Act of 1940, as amended, and any laws, rules
and regulations of governmental authorities having jurisdiction;
and
F. A registration statement under the Securities Act of 1933 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.
5. Covenants of Fund and Agent
The Fund shall furnish the Agent a certified copy of the resolution
of the Board of Directors of the Fund authorizing the appointment of the
Agent and the execution of this Agreement.
The Agent shall keep records relating to the services to be performed
hereunder, in the form and manner as it may deem advisable. To the extent
required by Section 31 of the Investment Company Act of 1940, as amended,
and the rules thereunder, the Agent agrees that all such records prepared
or maintained by the Agent relating to the services to be performed by the
Agent hereunder 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 on and in accordance with its request.
6. Indemnification; Remedies Upon Breach
The Agent agrees to use reasonable care and act in good faith in
performing its duties hereunder.
Notwithstanding the foregoing, the Agent shall not be liable or
responsible for delays or errors occurring by reason of circumstances
beyond its control, including acts of civil or military authority,
national or state emergencies, fire, mechanical or equipment failure,
flood or catastrophe, acts of God, insurrection or war. In the event of a
mechanical breakdown beyond its control, the Agent shall take all
reasonable steps to minimize service interruptions for any period that
such interruption continues beyond the Agent's control. The Agent will
make every reasonable effort to restore any lost or damaged data, and the
correcting of any errors resulting from such a breakdown will be at the
Agent's expense. The Agent agrees that it shall, at all times, have
reasonable contingency plans with appropriate parties, making reasonable
provision for emergency use of electrical data processing equipment to the
extent appropriate equipment is available. Representatives of Brandywine
Blue Fund, Inc. shall be entitled to inspect the Agent's premises and
operating capabilities at any time during regular business hours of the
Agent, upon reasonable notice to the Agent.
The Fund will indemnify and hold the Agent harmless against any and
all losses, claims, damages, liabilities or expenses (including reasonable
counsel fees and expenses) resulting from any claim, demand, action or
suit not resulting from the Agent's bad faith or negligence, and arising
out of or in connection with the Agent's duties on behalf of the Fund
hereunder.
Further, the Fund will indemnify and hold the Agent harmless against
any and all losses, claims, damages, liabilities or expenses (including
reasonable counsel fees and expenses) resulting from any claim, demand,
action or suit as a result of the negligence of the Fund or the principal
underwriter (unless contributed to by the Agent's own negligence or bad
faith); or as a result of the Agent acting upon telephone instructions
relating to the exchange or redemption of shares received by the Agent and
reasonably believed by the Agent to have originated from the record owner
of the subject shares; or as a result of the Agent acting upon any
instructions executed or orally communicated by a duly authorized officer
or employee of the Fund, according to such lists of authorized officers
and employees furnished to the Agent and as amended from time to time in
writing by a resolution of the Board of Directors of the Fund; or as a
result of acting in reliance upon any genuine instrument or stock
certificate signed, countersigned or executed by any person or persons
authorized to sign, countersign or execute the same.
In order for this section to apply, it is understood that if in any
case the Fund may be asked to indemnify or hold harmless the Agent, the
Fund shall be advised of all pertinent facts concerning the situation in
question, and it is further understood that the Agent will use reasonable
care to notify the Fund promptly concerning any situation which presents
or appears likely to present a claim for indemnification against the Fund.
The Fund shall have the option to defend the Agent against any claim which
may be the subject of this indemnification and, in the event that the Fund
so elects, the Agent will so notify the Fund, and thereupon the Fund shall
take over complete defense of the claim and the Agent shall sustain no
further legal or other expenses in such situation for which the Agent
shall seek indemnification under this section. The Agent will in no case
confess any claim or make any compromise in any case in which the Fund
will be asked to indemnify the Agent, except with the Fund's prior written
consent.
In the event that it is determined that the Agent has breached its
responsibilities under this contract, the Fund's sole and exclusive
remedies shall be:
A. Termination of the Agreement;
B. To collect damages directly and actually incurred in a sum up to
but not in excess of fifty percent (50%) of any fees received by
the Agent during the period of twelve (12) months immediately
proceeding the Agent's performance or failure to perform which
constituted a material breach of this Agreement;
C. To submit a claim for damages directly incurred by the Fund as a
consequence of the Agent's failure to perform which constituted
a material breach of this Agreement, and which act, nonact or
event was covered under the Agent's blanket bond policy or
policies, in which event the Agent agrees to indemnify and hold
the Fund harmless solely to the extent of the Agent's best
efforts to include the Fund's claim as a loss payee under the
filing of a proof of loss under such policy; and
D. To reprocess and correct administrative errors at the Agent's
own expense.
Regardless of the foregoing, the Agent shall not be liable to
the Fund or to any third party for any indirect or consequential damages.
7. Confidentiality
The Agent agrees on behalf of itself and its employees to treat
confidentially all records and other information relative to the Fund and
its shareholders and shall not be disclosed to any other party, except
after prior notification to and approval in writing by the Fund, which
approval shall not be unreasonably withheld and may not be withheld where
the Agent may be exposed to civil or criminal contempt proceedings for
failure to comply after being requested to divulge such information by
duly constituted authorities.
8. Wisconsin Law to Apply
This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of the state of
Wisconsin.
9. Amendment, Assignment, Termination and Notice
A. This Agreement may be amended by the mutual written consent of
the parties.
B. After the first full year, this Agreement may be terminated upon
ninety (90) day's written notice given by one party to the
other.
C. This Agreement and any right or obligation hereunder may not be
assigned by either party without the signed, written consent of
the other party.
D. Any notice required to be given by the parties to each other
under the terms of this Agreement shall be in writing, addressed
and delivered, or mailed to the principal place of business of
the other party.
E. In the event that the Fund gives to the Agent its written
intention to terminate and appoint a successor transfer agent,
the Agent agrees to cooperate in the transfer of its duties and
responsibilities to the successor, including any and all
relevant books, records and other data established or maintained
by the Agent under this Agreement.
F. Should the Fund exercise its right to terminate, all out-of-
pocket expenses associated with the movement of records and
material will be paid by the Fund.
BRANDYWINE BLUE FUND, INC. FIRST WISCONSIN TRUST COMPANY
By: __________________________ By: _________________________________
Attest: ________________________ Attest: ___________________________
Assistant Secretary
