EXHIBIT 9
SERVICE AGREEMENT
AGREEMENT made this 16th day of December, 1985, between BRANDYWINE FUND,
INC., a Maryland corporation (the "Fund"), and FIDUCIARY MANAGEMENT, INC., a
Wisconsin corporation ("Fiduciary").
W I T N E S S E T H :
WHEREAS, the Fund is in the process of registering with the Securities and
Exchange Commission as an open-end management investment company under the
Investment Company Act of 1940 (the "Act"); and
WHEREAS, the Fund desires to retain Fiduciary to provide certain
management-related services as further provided herein and Fiduciary desires to
perform such services for the Fund.
NOW, THEREFORE, the Fund and Fiduciary do mutually promise and agree as
follows:
1. Employment. The Fund hereby employs Fiduciary to perform the
management-related services set forth in Section 2 hereof for the period and on
the terms set forth in this Agreement. Fiduciary hereby accepts such employment
for the compensation herein provided and agrees during such period to render the
services and to assume the obligations herein set forth.
2. Management-Related Services. Fiduciary shall perform the following
management-related services for the Fund:
(a) Prepare and maintain the books, accounts and other documents
specified in Rules 31a-1(b)(1), 31a-1(b)(2)(i)-(iii), 31a-1(b)(3) and
31a-1(b)(8) under the Act in accordance with the requirements of Rule
31a-1 and Rule 31a-2 under the Act;
(b) Determine the Fund's net asset value in accordance with the
provisions of the Fund's Articles of Incorporation and its Registration
Statement;
(c) Respond to stockholder inquiries forwarded to it by
the Fund;
(d) Prepare the financial statements contained in reports
to stockholders of the Fund;
(e) Prepare tax returns;
(f) Prepare reports to and filings with the Securities and Exchange
Commission (other than the Fund's Registration
Statement on Form N-1A);
(g) Prepare reports to and filings with state Blue Sky
authorities; and
(h) Perform such other services as may be agreed to by Fiduciary
and the Fund.
Fiduciary shall not act, and shall not be required to act, as an investment
adviser to the Fund or have any authority to supervise the investment or
reinvestment of the cash, securities or other property comprising the Fund's
assets or to determine what securities or other property may be purchased or
sold by the Fund. Fiduciary shall for all purposes herein be deemed to be an
independent contractor and shall, unless otherwise expressly provided or
authorized, have no authority to act for or represent the Fund in any way or
otherwise be deemed to be an agent of the Fund. Fiduciary agrees that all books,
accounts and other documents prepared and maintained by it pursuant to this
Section 2 are the property of the Fund and will be surrendered to the Fund
promptly on request.
3. Expenses. Fiduciary shall, at its own expense and without reimbursement
from the Fund, furnish all office space, office facilities, equipment and
personnel necessary to perform the services required to be performed by it under
this Agreement. The Fund shall pay the fees of counsel or independent public
accountants reviewing or assisting in the preparation of the reports and
financial statements referred to in Section 2 hereof.
4. Compensation of Fiduciary. The fees to be paid to Fiduciary for the
services rendered by it hereunder shall be based solely on the actual time spent
by its personnel and shall be at the rate of $25.00 per hour. The Fund shall be
billed monthly by Fiduciary or at such other regular intervals as may be agreed
to by the Fund and Fiduciary.
5. Exclusivity. The services of Fiduciary to the Fund hereunder are not to
be deemed exclusive and Fiduciary shall be free to furnish similar services to
others as long as the services hereunder are not impaired thereby.
6. Liability. In the absence of willful misfeasance, bad faith, gross
negligence or reckless disregard of obligations or duties hereunder on the part
of Fiduciary, Fiduciary shall not be subject to liability to the Fund, the
Fund's investment adviser or to any stockholder of the Fund for any act or
omission in the course of, or connected with, rendering services hereunder.
7. Amendments and Termination. This Agreement may be amended by the mutual
consent of the parties. This Agreement may be terminated at any time, without
the payment of any penalty, by the board of directors of the Fund or by
Fiduciary, upon the giving of ninety (90) days' written notice. Upon any such
termination Fiduciary shall deliver to the Fund all books, accounts and other
documents then maintained by it pursuant to Section 2 hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day first above written.
FIDUCIARY MANAGEMENT, INC.
By: ______________________________ By: ____________________________
Secretary President
BRANDYWINE FUND, INC.
By: ______________________________ By: _____________________________
Secretary President
AMENDMENT TO SERVICE AGREEMENT
AMENDMENT TO SERVICE AGREEMENT made as of this 1st day of October,
1997, between BRANDYWINE FUND, INC., a Maryland corporation (the "Fund") and
FIDUCIARY MANAGEMENT, INC., a Wisconsin corporation ("Fiduciary").
W I T N E S S E T H :
WHEREAS, the parties hereto did, on the 16th day of December, 1985,
enter into a Service Agreement (hereinafter referred to as the "Agreement");
and
WHEREAS, the parties hereto desire to amend the Agreement as
permitted by Section 7 thereof.
NOW, THEREFORE, the Fund and Fiduciary hereby agree as follows:
1. Section 4 of the Agreement is hereby amended to read as follows:
4. Compensation of Fiduciary. For the services rendered by Fiduciary
hereunder, the Fund shall pay to Fiduciary an annual service fee of
$433,000, beginning October 1, 1997, payable in equal monthly installments.
For any month in which this Agreement is not in effect for the entire
month, such fee shall be reduced proportionately on the basis of the
calendar days during which it is in effect.
2. Except to the extent changed and modified herein, all of the
terms and conditions of the Agreement shall remain unchanged and in full
force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to Service Agreement to be executed on the day first above written.
FIDUCIARY MANAGEMENT, INC.
BRANDYWINE FUND, INC.
By:________________________________ By: _____________________________
Xxx X. Xxxxxxx, Chairman and CEO Xxxxxx X. Xxxxxx, President
By:________________________________ By: _____________________________
Xxxxxx X. Xxxxxx, President Xxxxx X. Xxxxxxxx, Secretary
