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WARBURG PINCUS GROWTH & INCOME FUND
WARBURG PINCUS BALANCED FUND
WARBURG PINCUS TAX FREE FUND
OF
THE RBB FUND, INC.
--------------------
YOUR VOTE IS IMPORTANT
DEAR SHAREHOLDER:
The Board of Directors of The RBB Fund, Inc. (the 'RBB Fund') has recently
reviewed and unanimously endorsed proposals for the reorganization of three of
its investment series -- Warburg Pincus Growth & Income Fund, Warburg Pincus
Balanced Fund and Warburg Pincus Tax Free Fund (each, an 'Existing Warburg Fund'
and, collectively, the 'Existing Warburg Funds'). UNDER THE TERMS OF THE
PROPOSALS, EACH OF THREE NEWLY FORMED INVESTMENT COMPANIES -- WARBURG, PINCUS
GROWTH & INCOME FUND, INC., WARBURG, PINCUS BALANCED FUND, INC. AND WARBURG,
PINCUS TAX FREE FUND, INC. (EACH, A 'NEW WARBURG FUND,' AND COLLECTIVELY, THE
'NEW WARBURG FUNDS') -- WOULD ACQUIRE ALL OR SUBSTANTIALLY ALL OF THE ASSETS AND
LIABILITIES OF THE EXISTING WARBURG FUND WITH A SIMILAR NAME. We are pleased to
invite you to attend a special meeting (the 'Meeting') of the shareholders of
each Existing Warburg Fund to consider the approval of an Agreement and Plan of
Reorganization (the 'Plan') pursuant to which the reorganization of your Fund
(the 'Reorganization') would be effected.
Your Board of Directors and Warburg, Pincus Counsellors, Inc. ('Warburg'),
each Fund's investment adviser, believe that the Reorganization is in the best
interests of each Existing Warburg Fund and its shareholders. It will integrate
the Existing Warburg Funds fully into the Warburg Pincus Funds family, thereby,
among other things, reducing confusion in the marketplace and reducing the
possibility of inconsistencies in operations, and may generate economic
efficiencies as well.
The Reorganization will not result in any changes to the investment
philosophy or operations of your Fund, since each New Warburg Fund has the same
investment objective and substantially similar investment policies as the
corresponding Existing Warburg Fund. Each New Warburg Fund will have the same
investment adviser, administrators, custodian and transfer agent as the
corresponding Existing Warburg Fund. In addition, Counsellors Securities Inc.
(each Fund's distributor) and PFPC Inc. (each Fund's co-administrator) (or their
affiliates), have agreed to waive fees and reimburse expenses for the one-year
period following the closing of the Reorganization (the 'Closing Date') to the
extent necessary for the net expense ratio of each New Warburg Fund to be no
higher than the average of that of the corresponding Existing Warburg Fund for
the thirty days ending on the Closing Date.
If shareholders of an Existing Warburg Fund approve the Plan, upon
consummation of the Reorganization of that Fund, the Existing Warburg Fund will
be liquidated. You will become a shareholder of the corresponding New Warburg
Fund, having received shares of the same class with an aggregate value equal to
the aggregate net asset value of your investment in the Existing Warburg Fund at
the time of the transaction. No sales charge will be imposed in the transaction.
The transactions will, in the opinion of counsel, be free from federal income
taxes to you, the Existing Warburg Funds and the New Warburg Funds. Warburg or
its affiliates will bear all expenses incurred in connection with each
Reorganization.
The Meeting will be held on May 1, 1996 to consider this transaction. WE
STRONGLY INVITE YOUR PARTICIPATION BY ASKING YOU TO REVIEW, COMPLETE AND RETURN
YOUR PROXY PROMPTLY. If you own shares of more than one Existing Warburg Fund, a
separate proxy card is enclosed for each.
Detailed information about the proposed reorganization is described in the
attached combined prospectus/proxy statement. YOUR BOARD OF DIRECTORS HAS
UNANIMOUSLY APPROVED THE REORGANIZATION OF EACH EXISTING WARBURG FUND AND
RECOMMENDS
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THAT YOU VOTE TO APPROVE THE PLAN. On behalf of the Board of Directors, I thank
you for your participation as a shareholder and urge you to please exercise your
right to vote by completing, dating and signing the enclosed proxy card(s). A
self-addressed, postage-paid envelope has been enclosed for your convenience; if
you prefer, you can fax the proxy card to D.F. King & Co., Inc. at (212)
809-8839.
If you have any questions regarding the proposed reorganization, please
feel free to call 1(800) 755-3107, where an individual will be pleased to assist
you.
IT IS VERY IMPORTANT THAT YOUR VOTING INSTRUCTIONS BE RECEIVED PROMPTLY.
Sincerely,
DONALD VAN RODEN
Chairman of the Board
March 7, 1996
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QUESTIONS AND ANSWERS
Q.) WHAT ISSUE AM I BEING ASKED TO VOTE ON?
A.) You are being asked to approve a proposed Reorganization of your Existing
Warburg Fund. As a result of the Reorganization, you will receive shares of
identical value in a corresponding New Warburg Fund with a similar name and
the same investment objective and portfolio manager(s) as your Existing
Warburg Fund.
Q.) IS THE PROPOSED REORGANIZATION IN MY BEST INTEREST?
A.) Yes. Your Board of Directors and Warburg, Pincus Counsellors, Inc. believe
that the Reorganization is in the best interests of each Existing Warburg
Fund and its shareholders. It will integrate the Existing Warburg Funds
fully into the Warburg Pincus Funds family, thereby, among other things,
reducing confusion in the marketplace and reducing the possibility of
inconsistencies in operations. The interest of the shareholders of the
Existing Warburg Funds will not be diluted as a result of the
Reorganization.
Q.) WILL THERE BE ANY CHANGES IN THE INVESTMENT OBJECTIVES
AS A RESULT OF THE PROPOSED REORGANIZATION?
A.) The Reorganization will not result in any changes to the investment
philosophy or operations of your Fund, since each New Warburg Fund has the
same investment objective as the corresponding Existing Warburg Fund. Each
New Warburg Fund will have the same portfolio manager(s), administrators,
custodian and transfer agent as the corresponding Existing Warburg Fund.
Q.) ARE THERE ANY FEDERAL INCOME TAX CONSEQUENCES
AS A RESULT OF THE PROPOSED REORGANIZATION?
A.) No. As a result of the Reorganization, no gain or loss will be recognized by
an Existing Warburg Fund or its shareholders for federal income tax
purposes.
Q.) WHO WILL BEAR THE COSTS ASSOCIATED WITH THE PROPOSED REORGANIZATION?
A.) Warburg or its affiliates will bear all expenses incurred in connection with
each Reorganization.
Q.) IS IT GOING TO COST ME MORE MONEY BECAUSE OF THE REORGANIZATION?
A.) No. As indicated in the proxy material, there is no change in fees or
expenses.
Q.) HOW DO I VOTE MY SHARES?
A.) You can vote your shares by signing, dating and mailing the enclosed proxy
card in the postage paid envelope. If you prefer, you can fax the proxy card
to D.F. King & Co., Inc. at (212) 809-8839. If you have any questions or
need any assistance please call our proxy solicitor, D.F. King & Co., Inc.,
at 1(800) 755-3107.
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THE RBB FUND, INC.
BELLEVUE PARK CORPORATE CENTER
400 BELLEVUE PARKWAY
SUITE 100
WILMINGTON, DELAWARE 19809
NOTICE OF SPECIAL MEETING OF SHAREHOLDERS
TO BE HELD ON MAY 1, 1996
Notice is hereby given that a Special Meeting of Shareholders (the
'Meeting') of Warburg Pincus Growth & Income Fund, Warburg Pincus Balanced Fund
and Warburg Pincus Tax Free Fund, each a series of The RBB Fund, Inc., will be
held at the offices of The RBB Fund, Inc., 400 Bellevue Parkway, Wilmington,
Delaware 19809 on May 1, 1996, commencing at 3:00 p.m. for the following
purposes:
1. To approve or disapprove the Agreement and Plan of Reorganization
dated as of March 6, 1996 (the 'Plan') providing (i) that each of Warburg
Pincus Growth & Income Fund, Warburg Pincus Balanced Fund and Warburg
Pincus Tax Free Fund (individually an 'Existing Warburg Fund' and,
together, the 'Existing Warburg Funds') would be reorganized from a series
of The RBB Fund, Inc. into Warburg, Pincus Growth & Income Fund, Inc.,
Warburg, Pincus Balanced Fund, Inc. and Warburg, Pincus Tax Free Fund,
Inc., respectively (individually a 'New Warburg Fund' and together the 'New
Warburg Funds'), (ii) each Existing Warburg Fund would transfer to the
corresponding New Warburg Fund all or substantially all of its assets in
exchange for shares of the New Warburg Fund and the assumption of
liabilities, and (iii) the distribution of such shares of the New Warburg
Funds to shareholders of the Existing Warburg Funds in liquidation of the
Existing Warburg Funds.
2. To transact such other business as may properly come before the
Meeting or any adjournment or adjournments thereof.
THE BOARD OF DIRECTORS OF THE RBB FUND UNANIMOUSLY RECOMMENDS THAT
SHAREHOLDERS OF EACH EXISTING WARBURG FUND VOTE TO APPROVE THE PLAN.
The Board of Directors of the RBB Fund has fixed the close of business on
March 1, 1996 as the record date for the determination of shareholders of the
Existing Warburg Funds entitled to notice of and to vote at the Meeting and any
adjournment or adjournments thereof.
IT IS IMPORTANT THAT PROXIES BE RETURNED PROMPTLY.
SHAREHOLDERS WHO DO NOT EXPECT TO ATTEND THE SPECIAL MEETING ARE URGED TO
(A) SIGN AND RETURN WITHOUT DELAY THE ENCLOSED PROXY CARD(S) IN THE ENCLOSED
ENVELOPE, WHICH REQUIRES NO POSTAGE IF MAILED IN THE UNITED STATES, OR (B) FAX
THE ENCLOSED PROXY CARD(S) TO D.F. KING & CO., INC. AT (212) 809-8839, SO THAT
THEIR SHARES MAY BE REPRESENTED AT THE MEETING. INSTRUCTIONS FOR THE PROPER
EXECUTION OF PROXY CARDS ARE SET FORTH ON THE FOLLOWING PAGE. PROXIES MAY BE
REVOKED AT ANY TIME BEFORE THEY ARE EXERCISED BY
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THE SUBSEQUENT EXECUTION AND SUBMISSION OF A REVISED PROXY, BY GIVING WRITTEN
NOTICE OF REVOCATION TO THE RBB FUND, INC. AT ANY TIME BEFORE THE PROXY IS
EXERCISED OR BY VOTING IN PERSON AT THE MEETING.
By Order of the Board of Directors
MORGAN R. JONES
Secretary
March 7, 1996
YOUR PROMPT ATTENTION TO THE ENCLOSED PROXY WILL HELP TO AVOID THE EXPENSE
OF FURTHER SOLICITATION.
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INSTRUCTIONS FOR SIGNING PROXY CARDS
The following general rules for signing proxy cards may be of assistance to
you and avoid the time and expense involved in validating your vote if you fail
to sign your proxy card properly.
1. Individual Accounts: Sign your name exactly as it appears in the
registration on the proxy card.
2. Joint Accounts: Either party may sign, but the name of the party
signing should conform exactly to the name shown in the
registration on the proxy card.
3. All Other Accounts: The capacity of the individual signing the
proxy card should be indicated unless it is reflected in the form
of registration. For example:
<TABLE>
<CAPTION>
REGISTRATION VALID SIGNATURES
- ------------ -----------------------------
<S> <C> <C>
CORPORATE ACCOUNTS
(1) ABC Corp. ............................................... ABC Corp.
(2) ABC Corp. ............................................... John Doe, Treasurer
(3) ABC Corp.
c/o John Doe, Treasurer................................ John Doe
(4) ABC Corp. Profit Sharing Plan............................ John Doe, Trustee
TRUST ACCOUNTS
(1) ABC Trust................................................ Jane B. Doe, Trustee
(2) Jane B. Doe, Trustee
u/t/d 12/28/78......................................... Jane B. Doe
CUSTODIAL OR ESTATE ACCOUNTS
(1) John B. Smith, Cust.
f/b/o John B. Smith, Jr. UGMA.......................... John B. Smith
(2) John B. Smith............................................ John B. Smith, Jr., Executor
</TABLE>
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<PAGE>
COMBINED PROSPECTUS/PROXY STATEMENT DATED MARCH 7, 1996
ACQUISITION OF THE ASSETS OF
WARBURG PINCUS GROWTH & INCOME FUND
WARBURG PINCUS BALANCED FUND
WARBURG PINCUS TAX FREE FUND
SEPARATE INVESTMENT PORTFOLIOS OF
THE RBB FUND, INC.
400 BELLEVUE PARKWAY
SUITE 100
WILMINGTON, DELAWARE 19809
(302) 792-2555
BY AND IN EXCHANGE FOR SHARES OF
WARBURG, PINCUS GROWTH & INCOME FUND, INC.
WARBURG, PINCUS BALANCED FUND, INC.
WARBURG, PINCUS TAX FREE FUND, INC.
466 LEXINGTON AVENUE
NEW YORK, NEW YORK 10017
1-800-888-6878
This Combined Prospectus/Proxy Statement is being furnished to shareholders
of Warburg Pincus Growth & Income Fund (the 'Existing Growth & Income Fund'),
Warburg Pincus Balanced Fund (the 'Existing Balanced Fund') and Warburg Pincus
Tax Free Fund (the 'Existing Tax Free Fund,' together with the Existing Growth &
Income Fund and Existing Balanced Fund, the 'Existing Warburg Funds,' each an
'Existing Warburg Fund'), separate series of The RBB Fund, Inc. (the 'RBB
Fund'), in connection with the proposed Agreement and Plan of Reorganization
(the 'Plan') to be submitted to shareholders of each Existing Warburg Fund for
consideration at a Special Meeting of Shareholders to be held on May 1, 1996 at
3:00 p.m. (the 'Meeting'), at the offices of The RBB Fund, Inc. located at 400
Bellevue Parkway, Wilmington, Delaware 19809, or any adjournment or adjournments
thereof.
Each of Warburg, Pincus Growth & Income Fund, Inc. (the 'New Growth &
Income Fund'), Warburg, Pincus Balanced Fund, Inc. (the 'New Balanced Fund') and
Warburg, Pincus Tax Free Fund, Inc. (the 'New Tax Free Fund' and, with the New
Growth & Income Fund and the New Balanced Fund, the 'New Warburg Funds'; each a
'New Warburg Fund') is a newly organized registered investment company.
The proposed reorganization pursuant to the Plans will not result in any
change in the investment philosophy or operations of the Existing Warburg Funds.
The investment objectives and policies of each New Warburg Fund are the same as
those of the corresponding Existing Warburg Funds except for minor investment
policy differences described under 'Comparison of Investment Objectives and
Policies' in this Combined Prospectus/Proxy Statement. The investment adviser,
administrators, custodian, transfer agent and accountant for each New Warburg
Fund are the same as those of the corresponding Existing Warburg Fund.
The Plan provides for all or substantially all of the assets of an Existing
Warburg Fund to be acquired by the corresponding New Warburg Fund in exchange
for shares of the New Warburg Fund and the assumption by such New Warburg Fund
of liabilities of the Existing Warburg Fund (as regards each Existing Warburg
Fund, hereinafter referred to as the 'Reorganization'). (The New Warburg Funds
and the Existing Warburg Funds are sometimes referred to hereinafter as the
'Funds' and individually as a 'Fund.') Shares of a New Warburg Fund would be
distributed to shareholders of the corresponding Existing Warburg Fund in
liquidation of the corresponding Existing Warburg Fund. As a result of the
proposed Reorganization, each shareholder of an Existing Warburg Fund will
receive that number of shares of the corresponding New Warburg Fund having an
aggregate net asset value equal to the aggregate value of such shareholder's
shares of the Existing Warburg Fund immediately prior to the Reorganization. All
expenses of the Reorganization will be borne by Warburg, Pincus Counsellors,
Inc.
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('Warburg' or the 'Adviser'), the investment adviser of each Existing Warburg
Fund and each New Warburg Fund. No sales charge will be imposed on the shares of
a New Warburg Fund received by the shareholders of the corresponding Existing
Warburg Fund. This transaction is structured to be tax-free for federal income
tax purposes to shareholders and to both the New Warburg Funds and the Existing
Warburg Funds.
This Combined Prospectus/Proxy Statement, which should be retained for
future reference, sets forth concisely the information about the New Warburg
Funds that a prospective investor should know before voting. This Combined
Prospectus/Proxy Statement is expected to first be sent to shareholders on or
about March 8, 1996. A Statement of Additional Information dated March 7, 1996,
relating to this Combined Prospectus/Proxy Statement and the Reorganizations,
has been filed with the Securities and Exchange Commission (the 'SEC') and is
incorporated by reference into this Combined Prospectus/Proxy Statement. A copy
of such Statement of Additional Information is available upon oral or written
request and without charge by writing to the New Warburg Funds at the address
listed on the cover page of this Combined Prospectus/Proxy Statement or by
calling 1-800-888-6878.
The following documents, which have been filed with the SEC, are
incorporated herein in their entirety by reference.
1. The Prospectus of each class of shares offered by the New Warburg
Funds, each dated March 4, 1996. The New Warburg Fund Prospectus relating
to each class of shares of each Existing Warburg Fund held by a shareholder
accompanies this Combined Prospectus/Proxy Statement.
2. The current Prospectuses of the RBB Fund on behalf of each class of
Shares of the Existing Warburg Funds, each dated December 29, 1995. These
may be obtained without charge by writing to the address on the cover page
of this Combined Prospectus/Proxy Statement or by calling 1-800-WARBURG.
3. The Annual Reports of the Existing Warburg Funds for the fiscal
year ended August 31, 1995.
Accompanying this Combined Prospectus/Proxy Statement as Exhibit A is a
copy of the form of Agreement and Plan of Reorganization (the 'Plan') for the
proposed Reorganizations.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS COMBINED PROSPECTUS/PROXY
STATEMENT AND IN THE MATERIALS EXPRESSLY INCORPORATED HEREIN BY REFERENCE AND,
IF GIVEN OR MADE, SUCH OTHER INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED
UPON AS HAVING BEEN AUTHORIZED BY THE FUNDS.
2
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TABLE OF CONTENTS
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PAGE
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ADDITIONAL MATERIALS....................................................................................... 4
SUMMARY.................................................................................................... 5
RISK FACTORS............................................................................................... 8
REASONS FOR THE REORGANIZATIONS............................................................................ 8
FEE TABLES................................................................................................. 9
INFORMATION ABOUT THE REORGANIZATIONS...................................................................... 12
COMPARISON OF INVESTMENT OBJECTIVES AND POLICIES........................................................... 15
MANAGEMENT OF THE FUND..................................................................................... 16
INTEREST OF WARBURG IN THE REORGANIZATIONS................................................................. 16
INFORMATION ON SHAREHOLDERS' RIGHTS........................................................................ 16
ADDITIONAL INFORMATION..................................................................................... 18
VOTING INFORMATION......................................................................................... 18
OTHER BUSINESS............................................................................................. 20
FINANCIAL STATEMENTS AND EXPERTS........................................................................... 20
LEGAL MATTERS.............................................................................................. 20
EXHIBIT A: FORM OF AGREEMENT AND PLAN OF REORGANIZATION.................................................... A-1
</TABLE>
3
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ADDITIONAL MATERIALS
The following additional materials, which have been incorporated by
reference into the Statement of Additional Information dated March 7, 1996
relating to this Combined Prospectus/Proxy Statement and the Reorganizations,
will be sent to all shareholders of the relevant Existing Warburg Fund
requesting a copy of such Statement of Additional Information.
1. The Statement of Additional Information of the relevant New Warburg
Fund, dated March 4, 1996.
2. The Statements of Additional Information for each class of Shares of the
relevant Existing Warburg Fund, dated December 29, 1995.
4
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SUMMARY
This summary is qualified in its entirety by reference to the additional
information contained elsewhere in this combined Prospectus/Proxy Statement, the
Plan, a copy of the form of which is attached to this combined Prospectus/Proxy
Statement as Exhibit A, the Prospectuses of the Existing Warburg Funds dated
December 29, 1995, the Statements of Additional Information of the Existing
Warburg Funds dated December 29, 1995, the Prospectuses of the New Warburg Funds
dated March 4, 1996 and the Statements of Additional Information of the New
Warburg Funds dated March 4, 1996.
Proposed Reorganization. The Plan provides for the transfer of all or
substantially all of the assets and liabilities of each Existing Warburg Fund to
the corresponding New Warburg Fund in exchange for shares of the New Warburg
Fund. The Plan also calls for the distribution of shares of a New Warburg Fund
to the corresponding Existing Warburg Fund's shareholders in liquidation of the
Existing Warburg Fund. (The foregoing proposed transactions as regards each
Existing Warburg Fund are referred to in this Combined Prospectus/Proxy
Statement as the 'Reorganization'). As a result of the Reorganization, each
shareholder of an Existing Warburg Fund will become the owner of that number of
full and fractional shares of the same class of the corresponding New Warburg
Fund having an aggregate net asset value equal to the aggregate value of the
shareholder's shares of the Existing Warburg Fund as of the close of business on
the date that each Existing Warburg Fund's assets are exchanged for shares of
the corresponding New Warburg Fund. Holders of Common Shares of the Existing
Warburg Fund will become holders of Common Shares of the corresponding New
Warburg Fund and holders of Advisor Shares of the Existing Warburg Fund will
become holders of Advisor Shares of the corresponding New Warburg Fund. See
'Information About the Reorganization -- Plan of Reorganization.'
For the reasons set forth below under 'Reasons for the Reorganization,' the
Board of Directors of the RBB Fund, including the Directors of the RBB Fund who
are not 'interested persons' (the 'Independent Directors'), as that term is
defined in the Investment Company Act of 1940, as amended (the '1940 Act'), has
unanimously concluded that the Reorganization would be in the best interests of
the shareholders of each Existing Warburg Fund and that the interests of each
Existing Warburg Fund's existing shareholders will not be diluted as a result of
the transaction contemplated by the Reorganization. The Board therefore has
submitted the Plan for approval by each Existing Warburg Fund's shareholders.
The Board of Directors of each New Warburg Fund has reached similar conclusions
with respect to the New Warburg Fund and has also approved the Reorganization
with respect to the New Warburg Fund.
Approval of the Reorganization of an Existing Warburg Fund will require the
affirmative vote of the holders of a majority of that Existing Warburg Fund's
outstanding shares. See 'Voting Information.' No Reorganization of any Existing
Warburg Fund is contingent on the approval and/or closing of the Reorganization
of any other Existing Warburg Fund. In the event that the Plan is not approved
by shareholders of one or more Existing Warburg Funds, the Board will consider
what other course of action, if any, should be taken.
Tax Consequences. Prior to completion of the Reorganization, each Existing
Warburg Fund and its corresponding New Warburg Fund will have received an
opinion of counsel that, upon the closing of the Reorganization and the transfer
of the assets of such Existing Warburg Fund, no gain or loss will be recognized
by the Existing Warburg Fund or its shareholders for federal income tax
purposes. The holding period and aggregate tax basis of the corresponding New
Warburg Fund's shares received by an Existing Warburg Fund shareholder will be
the same as the holding period and aggregate tax basis of the shares of the
Existing Warburg Fund previously held by such shareholder. In addition, the
holding period and tax basis of the assets of each Existing Warburg Fund in the
hands of the corresponding New Warburg Fund as a result of the Reorganization
will be the same as in the hands of the Existing Warburg Fund immediately prior
to the Reorganization.
Investment Objectives and Policies. Each New Warburg Fund was organized for
the purpose of acquiring the assets of the corresponding Existing Warburg Fund
and each New Warburg Fund will have the same investment objective, and, except
as noted below under 'Comparison of Investment
5
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<PAGE>
Objectives and Policies,' the same investment policies and limitations as the
corresponding Existing Warburg Fund.
Purchase and Redemption Procedures. The purchase and redemption procedures
available to shareholders of each New Warburg Fund are virtually identical to
those available to shareholders of the corresponding Existing Warburg Fund.
Purchases of shares of each New Warburg Fund and the corresponding Existing
Warburg Fund may be made by mail, or with advance arrangements, by wire through
the Funds' distributor, Counsellors Securities Inc. ('CSI'). Shares of the Funds
are sold at net asset value per share and without a sales charge. Common Shares
of the New and Existing Balanced and Tax Free Funds are subject to a 12b-1 fee
of .25% per annum. Advisor Shares of the New and Existing Growth & Income and
Balanced Funds are subject to a 12b-1 fee of up to .75% per annum.
Exchange Privileges. The exchange privileges available to shareholders of
each New Warburg Fund are identical to those available to shareholders of the
corresponding Existing Warburg Fund. Shareholders of each Existing Warburg Fund
and the corresponding New Warburg Funds may exchange at net asset value all or a
portion of their shares for shares of the same class of certain other mutual
funds advised by Warburg at their respective net asset values. However,
shareholders may not effect exchanges between Common Shares and Advisor Shares.
Exchanges may be effected by mail or by telephone. Exchanges will be effected
without a sales charge but must satisfy the minimum dollar amount necessary for
new purchases. Due to the costs involved in effecting exchanges, each Fund
reserves the right to refuse to honor more than three exchange requests by a
shareholder in any 30-day period. The exchange privilege may be modified or
terminated at any time upon 60 days' notice to shareholders. Currently, Common
Share exchanges may be made among the Funds with Common Shares of the following
other Warburg Pincus Funds:
Warburg Pincus Cash Reserve Fund -- a money market fund investing in
short-term, high quality money market instruments;
Warburg Pincus New York Tax Exempt Fund -- a money market fund
investing in short-term, high quality municipal obligations designed
for New York investors seeking income exempt from federal, New York
State and New York City income tax;
Warburg Pincus New York Intermediate Municipal Fund -- an
intermediate-term municipal bond fund designed for New York investors
seeking income exempt from federal, New York State and New York City
income tax;
Warburg Pincus Intermediate Maturity Government Fund -- an
intermediate-term bond fund investing in obligations issued or
guaranteed by the U.S. government, its agencies or instrumentalities;
Warburg Pincus Fixed Income Fund -- a bond fund seeking current
income and, secondarily, capital appreciation by investing in a
diversified portfolio of fixed-income securities;
Warburg Pincus Global Fixed Income Fund -- a bond fund investing in a
portfolio consisting of investment grade fixed income securities of
governmental and corporate issuers denominated in various currencies,
including U.S. dollars;
Warburg Pincus Capital Appreciation Fund -- an equity fund seeking
long-term capital appreciation by investing in equity securities of
financially strong domestic companies;
Warburg Pincus Small Company Value Fund -- an equity fund seeking
long-term capital appreciation by investing primarily in equity
securities of small companies;
Warburg Pincus Emerging Growth Fund -- an equity fund seeking maximum
capital appreciation by investing in emerging growth companies;
Warburg Pincus Post-Venture Capital Fund -- an equity fund seeking
long-term growth of capital by investing principally in equity
securities of issuers in their post-venture capital stage of
development;
6
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Warburg Pincus International Equity Fund -- an international equity
fund seeking long-term capital appreciation;
Warburg Pincus Emerging Markets Fund -- an equity fund seeking growth
of capital by investing primarily in securities of non-United States
issuers consisting of companies in emerging securities markets;
Warburg Pincus Japan Growth Fund -- an equity fund seeking long-term
growth of capital by investing primarily in equity securities of
Japanese issuers; and
Warburg Pincus Japan OTC Fund -- an equity fund seeking long-term
capital appreciation by investing in a portfolio of securities traded
in the Japanese over-the-counter market.
An institutional shareholder of record and certain other financial
intermediaries may exchange Advisor Shares of a Fund for Advisor Shares of other
Warburg Pincus Funds.
The exchange privilege is available to shareholders residing in any state
in which the Fund's shares being acquired may legally be sold. When an investor
effects an exchange of shares, the exchange is treated for federal income tax
purposes as a redemption. Therefore, the investor may realize a taxable gain or
loss in connection with the exchange. No initial sales charge is imposed on the
shares being acquired in an exchange. See 'How to Redeem and Exchange Shares' in
the accompanying Prospectuses of the New Warburg Funds.
Dividends. Each New Warburg Fund and each Existing Warburg Fund will
distribute substantially all of the net investment income and net realized
capital gains, if any, of the Fund to the Fund's shareholders. All distributions
are reinvested in the form of additional full and fractional shares unless a
shareholder elects otherwise. The Existing and New Growth & Income and Balanced
Funds declare and pay dividends, if any, from net investment income quarterly.
The Existing and New Tax Free Funds declare dividends from net investment income
daily and pay such dividends monthly. Net realized capital gains (including net
short-term capital gains), if any, of each New Warburg Fund, like each Existing
Warburg Fund, will be distributed at least annually. See 'Dividends,
Distributions and Taxes' in the accompanying Prospectuses of the New Warburg
Funds.
Shareholder Voting Rights. The New Warburg Funds are registered with the
Securities and Exchange Commission as open-end management investment companies.
The Existing Warburg Funds are each a separate series of the RBB Fund which is
also registered as an open-end management investment company. The RBB Fund and
the New Warburg Funds are Maryland corporations, each having a Board of
Directors. Shareholders of both the New Warburg Funds and the Existing Warburg
Funds have similar voting rights. Neither the New Warburg Fund nor the RBB Fund
on behalf of the Existing Warburg Funds holds a meeting of shareholders
annually, except as required by the 1940 Act or other applicable law. Each New
Warburg Fund's By-Laws provides that shareholders collectively owning at least
ten percent of the outstanding shares of all classes of stock of the Fund have
the right to call for a meeting of shareholders to consider the removal of one
or more directors. To the extent required by law, the New Warburg Funds will
assist in shareholder communication in such matters.
In addition, under the laws of the State of Maryland, shareholders of the
New Warburg Funds and the Existing Warburg Funds do not have appraisal rights in
connection with a combination or acquisition of the assets of the Fund by
another entity. Shareholders of an Existing Warburg Fund may, however, redeem
their shares at net asset value prior to the date of the Reorganization. See
'Information on Shareholders' Rights -- Voting Rights.'
7
<PAGE>
<PAGE>
RISK FACTORS
Due to the fact that the investment objectives and policies of each New
Warburg Fund are virtually identical to those of the corresponding Existing
Warburg Fund, the investment risks are substantially similar. See the
accompanying Prospectuses of the applicable New Warburg Fund for a complete
discussion of the risks of investing in that Fund.
REASONS FOR THE REORGANIZATIONS
The Board of Directors of the RBB Fund has determined that it is in the
best interest of each Existing Warburg Fund to effect the Reorganization. In
reaching this conclusion, the Board considered a number of factors, including
the following:
1. the terms and conditions of the Reorganizations;
2. the identical investment objectives and substantially identical
policies and restrictions of each New Warburg Fund in relation to those of
the corresponding Existing Warburg Fund;
3. that the investment advisor, co-administrators, custodian, transfer
agent and accountant for each New Warburg Fund are the same as those of the
corresponding Existing Warburg Fund;
4. the federal tax consequences of the Reorganizations to the Existing
Warburg Funds, the New Warburg Funds and the shareholders of each, and that
a legal opinion will be rendered that no recognition of income, gain or
loss for federal income tax purposes will occur as a result of the
Reorganizations to any of them;
5. that the interests of shareholders of the Existing Warburg Funds
will not be diluted as a result of the Reorganizations;
6. that CSI and PFPC Inc., the Fund's co-administrator ('PFPC'), (or
their affiliates) have agreed to waive fees and reimburse expenses for the
one-year period following the closing of the Reorganizations to the extent
necessary for the net expense ratio of each New Warburg Fund to be no
higher than the average of that of the corresponding Existing Warburg Fund
for the thirty days ending on May 3, 1996, or such date as may be agreed
upon by the parties to the Reorganizations (the 'Closing Date');
7. that the expenses of the Reorganizations will be borne by Warburg;
8. that no sales charge will be imposed in connection with the
Reorganizations;
9. that the Reorganizations would integrate the Existing Warburg Funds
fully into the Warburg Pincus Funds family, thereby, among other things,
reducing confusion in the marketplace and reducing the possibility of
inconsistencies in operations;
10. that the Reorganizations may increase economic efficiencies of the
Existing Warburg Funds; and
11. that the Reorganizations would remove certain regulatory
limitations on the ability of the Existing Warburg Funds to effect certain
transactions with parties that are affiliated persons of the RBB Fund.
In light of the foregoing, the Board of Directors of the RBB Fund,
including the Independent Directors, has determined that it is in the best
interest of each Existing Warburg Fund and its shareholders to effect the
Reorganization. The Board of Directors has also determined that the
Reorganization of an Existing Warburg Fund and the corresponding New Warburg
Fund would not result in a dilution of the interests of the Existing Warburg
Fund's shareholders.
The Board of Directors of each New Warburg Fund has also determined that it
is advantageous to the New Warburg Fund to effect the Reorganization. The Board
of Directors also considered the terms and conditions of the Reorganization and
representations that the Reorganization would be effected as a tax-free
reorganization. Accordingly, the Board of Directors of each New Warburg Fund,
including a majority of the Independent Directors, has determined that the
Reorganization is in the best interests of the New Warburg Fund's shareholders
and that the interests of the New Warburg Fund's shareholders would not be
diluted as a result of the Reorganization.
8
<PAGE>
<PAGE>
FEE TABLES
Following are tables showing current costs and expenses of the Existing
Warburg Funds and the costs and expenses expected to be incurred by the New
Warburg Funds after giving effect to the Reorganizations. The tables do not
reflect charges that institutions and financial intermediaries may impose on
their customers.
GROWTH & INCOME FUND -- COMMON SHARES
<TABLE>
<CAPTION>
EXISTING NEW WARBURG
WARBURG FUND FUND*
------------ -------------
<S> <C> <C>
SHAREHOLDER TRANSACTION EXPENSES
Maximum sales charge imposed on purchases (as a percentage of offering
price).................................................................... None None
ANNUAL OPERATING EXPENSES (after fee waivers and expense reimbursements)
Management fees............................................................. .75% .75%
12b-1 fees**................................................................ 0 0
Other expenses.............................................................. .49 .49
----- -----
TOTAL OPERATING EXPENSES (after waivers and expense reimbursements).............. 1.24% 1.24%
----- -----
----- -----
</TABLE>
GROWTH & INCOME FUND -- ADVISOR SHARES
<TABLE>
<CAPTION>
EXISTING NEW WARBURG
WARBURG FUND FUND*
------------ -------------
<S> <C> <C>
SHAREHOLDER TRANSACTION EXPENSES
Maximum sales charge imposed on purchases (as a percentage of offering
price).................................................................... None None
ANNUAL OPERATING EXPENSES (after fee waivers and expense reimbursements)
Management fees............................................................. .75% .75%
12b-1 fees**................................................................ .50 .50
Other expenses.............................................................. .38 .38
----- -----
TOTAL OPERATING EXPENSES (after waivers and expense reimbursements).............. 1.63% 1.63%
----- -----
----- -----
</TABLE>
BALANCED FUND -- COMMON SHARES
<TABLE>
<CAPTION>
EXISTING NEW WARBURG
WARBURG FUND FUND*
------------ -------------
<S> <C> <C>
SHAREHOLDER TRANSACTION EXPENSES
Maximum sales charge imposed on purchases (as a percentage of offering
price).................................................................... None None*
ANNUAL OPERATING EXPENSES (after fee waivers and expense reimbursements)
Management fees............................................................. 0 0
12b-1 fees**................................................................ .25% .25%
Other expenses.............................................................. 1.35 1.35
----- -----
TOTAL OPERATING EXPENSES (after waivers and expense reimbursements).............. 1.60% 1.60%
----- -----
----- -----
</TABLE>
9
<PAGE>
<PAGE>
BALANCED FUND -- ADVISOR SHARES
<TABLE>
<CAPTION>
EXISTING NEW WARBURG
WARBURG FUND FUND*
------------ -------------
<S> <C> <C>
SHAREHOLDER TRANSACTION EXPENSES
Maximum sales charge imposed on purchases (as a percentage of offering
price).................................................................... None None
ANNUAL OPERATING EXPENSES (after fee waivers and expense reimbursements)
Management fees............................................................. 0 0
12b-1 fees**................................................................ .50% .50%
Other expenses.............................................................. 1.35 1.35
----- -----
TOTAL OPERATING EXPENSES (after waivers and expense reimbursements).............. 1.85% 1.85%
----- -----
----- -----
</TABLE>
TAX FREE FUND -- COMMON SHARES
<TABLE>
<CAPTION>
EXISTING NEW WARBURG
WARBURG FUND FUND*
------------ -------------
<S> <C> <C>
SHAREHOLDER TRANSACTION EXPENSES
Maximum sales charge imposed on purchases (as a percentage of offering
price).................................................................... None None
ANNUAL OPERATING EXPENSES (after fee waivers and expense reimbursements)
Management fees............................................................. 0 0
12b-1 fees**................................................................ .25% .25%
Other expenses.............................................................. .25 .25
----- -----
TOTAL OPERATING EXPENSES (after waivers and expense reimbursements).............. .50% .50%
----- -----
----- -----
</TABLE>
- ------------
* CSI and PFPC Inc. (or their affiliates) have agreed to waive fees and
reimburse expenses of each New Warburg Fund for a one-year period following
the closing of a Reorganization so that the expense ratio of each New Warburg
Fund will be no higher than the average of that of the corresponding Existing
Warburg Fund for the thirty days ending on the Closing Date of the
Reorganization.
** The Advisor Shares impose a 12b-1 fee of up to .75% per annum, which is the
economic equivalent of a sales charge. Long-term shareholders of the Existing
and New Balanced Fund, the Existing and New Tax-Free Fund or Advisor Shares
may pay more than the economic equivalent of the maximum front-end sales
charges permitted by the National Association of Securities Dealers, Inc.
(the 'NASD').
------------------------
Expenses for the Funds reflect current expense levels as of March 1, 1996.
In addition, the Fee Tables reflect a voluntary waiver of Management Fees and
the reimbursement of a portion of the expenses of the Existing Balanced and Tax
Free Funds by Warburg. Absent such waivers and expense reimbursements,
Management Fees for the Existing Balanced Fund and Existing Tax Free Fund would
have equaled .90% and .50%, respectively; Other Expenses for the Common Shares
for the Existing Balanced and Tax Free Funds would have equaled 1.71% and 2.86%,
respectively, and, with respect to the Existing Balanced Fund Advisor Shares,
Other Expenses would have equaled 1.71%; and Total Fund Operating Expenses for
the Common Shares for the Existing Balanced and Tax Free Funds would have
equaled 2.86% and 3.61%, respectively, and with respect to Existing Balanced
Fund Advisor Shares, would have equaled 3.11%.
10
<PAGE>
<PAGE>
EXAMPLES
The following examples are intended to assist an investor in understanding
the various costs that an investor in the New Warburg Funds will bear directly
or indirectly. The examples assume payment of operating expenses at the levels
set forth in the tables above.
<TABLE>
<CAPTION>
1 YEAR 3 YEARS
------ -------
<S> <C> <C>
An investor would pay the following expenses on a $1,000 investment, assuming (1) 5.00% annual
return and (2) redemption at the end of each time period:
Growth & Income Fund -- Common Shares
Existing Warburg Fund................................................................. $ 13 $39
New Warburg Fund...................................................................... 13 39
Growth & Income Fund -- Advisor Shares
Existing Warburg Fund................................................................. 17 51
New Warburg Fund...................................................................... 17 51
Balanced Fund -- Common Shares
Existing Warburg Fund................................................................. 16 50
New Warburg Fund...................................................................... 16 50
Balanced Fund -- Advisor Shares
Existing Warburg Fund................................................................. 19 58
New Warburg Fund...................................................................... 19 58
Tax Free Fund -- Common Stock
Existing Warburg Fund................................................................. 5 16
New Warburg Fund...................................................................... 5 16
</TABLE>
The examples in the Fee Tables assume that all dividends and distributions
are reinvested.
The examples provide a means for the investor to compare expense levels of
funds with different fee structures over varying investment periods. To
facilitate such comparison, all funds are required to utilize a 5.00% annual
return assumption. However, each Fund's actual return will vary and may be
greater or less than 5.00%. THESE EXAMPLES SHOULD NOT BE CONSIDERED
REPRESENTATIONS OF PAST OR FUTURE EXPENSES AND ACTUAL EXPENSES MAY BE GREATER OR
LESSER THAN THOSE SHOWN.
11
<PAGE>
<PAGE>
INFORMATION ABOUT THE REORGANIZATIONS
Agreement and Plan of Reorganization. The following summary of each Plan is
qualified in its entirety by reference to the form of Plan (Exhibit A hereto).
Each Plan provides that the relevant New Warburg Fund will acquire all or
substantially all of the assets of the corresponding Existing Warburg Fund in
exchange for shares of the New Warburg Fund and the assumption by the New
Warburg Fund of the liabilities of the Existing Warburg Fund on the Closing
Date.
Prior to the Closing Date, the RBB Fund on behalf of each Existing Warburg
Fund will endeavor to discharge all of its known liabilities and obligations.
The New Warburg Fund shall assume all liabilities, expenses, costs, charges and
reserves reflected on an unaudited statement of assets and liabilities of the
corresponding Existing Warburg Fund prepared by PFPC, as of the close of regular
trading on the New York Stock Exchange, Inc., currently 4:00 p.m. New York City
time, on the Closing Date, in accordance with generally accepted accounting
principles consistently applied from the prior audited period. The New Warburg
Fund shall also assume any liabilities of the corresponding Existing Warburg
Fund arising from the operations and/or transactions of the Existing Warburg
Fund prior to and including the Closing Date. The net asset value per share of
each class of each Fund will be determined by adding the relevant class' pro
rata share of the Fund's securities, cash and other assets, deducting the
relevant class' pro rata share of the actual and accrued liabilities and the
liabilities specifically allocated to that class of shares, and dividing the
result by the total number of outstanding shares of the relevant class. Each
Existing Warburg Fund and the corresponding New Warburg Fund will utilize the
procedures set forth in their respective current Prospectuses or Statements of
Additional Information to determine the value of their respective portfolio
securities and to determine the aggregate value of each Fund's portfolio.
As soon after the Closing Date as conveniently practicable, each Existing
Warburg Fund will liquidate and distribute pro rata to shareholders of record as
of the close of business on the Closing Date the shares of the same class of the
corresponding New Warburg Fund received by the Existing Warburg Fund. Such
liquidation and distribution will be accomplished by the establishment of
accounts in the names of the Existing Warburg Fund's shareholders on the share
records of the corresponding New Warburg Fund's transfer agent. Each account
will represent the respective pro rata number of shares of the class of shares
of the corresponding New Warburg Fund due to each of the Existing Warburg Fund's
shareholders.
The consummation of each Reorganization is subject to the conditions set
forth in the Plan. Notwithstanding approval by the shareholders of an Existing
Warburg Fund, the Plan may be terminated with respect to a Reorganization at any
time at or prior to the Closing Date: (i) by mutual agreement of The RBB Fund,
on behalf of an Existing Warburg Fund, and the corresponding New Warburg Fund;
(ii) by The RBB Fund, on behalf of an Existing Warburg Fund, in the event the
corresponding New Warburg Fund shall, or a New Warburg Fund, in the event the
RBB Fund or the corresponding Existing Warburg Fund shall, materially breach any
representation, warranty or agreement contained in the Plan to be performed at
or prior to the Closing Date; or (iii) if a condition to the Plan expressed to
be precedent to the obligations of the terminating party has not been met and it
reasonably appears that it will not or cannot be met.
Pursuant to the Plan, each New Warburg Fund has agreed to indemnify and
advance expenses to each director or officer of The RBB Fund against money
damages incurred in connection with any claim arising out of such person's
services as a director or officer with respect to matters specifically relating
to the corresponding Existing Warburg Fund. Each Existing Warburg Fund has
obtained a rider for its current directors and officers liability policy
extending the period for making claims under the policy until three years
following the Closing Date. The premium for the three-year period has been
prepaid by the Existing Warburg Fund.
Warburg has agreed to indemnify each person who served as a director or
officer of The RBB Fund on the date of execution of the Plan against any and all
direct and indirect liabilities, losses, claims, damages and expenses
(including, without limitation, reasonable attorneys' fees) (each, a 'Loss')
that arise from or relate to the operations commencing on the first business day
after the Closing Date of the New Warburg Funds, to the extent that a Loss has
not been recovered against the relevant New Warburg Fund.
12
<PAGE>
<PAGE>
Approval of the Plan with respect to each Existing Warburg Fund will
require the affirmative vote of a majority of each Existing Warburg Fund's
outstanding shares in the aggregate without regard to class, in person or by
proxy, if a quorum is present. The approval of shareholders of any other RBB
Fund or of shareholders of the New Warburg Funds is not required. Implementing
the Reorganization by any one Existing Warburg Fund would not be conditioned on
receipt of shareholder approval by any other Existing Warburg Fund. Shareholders
of the Existing Warburg Funds are entitled to one vote for each share. If the
Reorganization is not approved by shareholders of an Existing Warburg Fund, the
Board of Directors of the RBB Fund on behalf of the applicable Existing Warburg
Fund will consider other possible courses of action available to it, including
resubmitting the Reorganization proposal to shareholders.
Description of the New Warburg Funds' Shares. Shares of each New Warburg
Fund will be issued to the corresponding Existing Warburg Fund in accordance
with the procedures detailed in the Plan and as described in the New Warburg
Funds' Prospectuses. The New Warburg Funds do not issue share certificates to
shareholders. See 'Information on Shareholders' Rights' and the Prospectuses of
the New Warburg Funds for additional information with respect to the shares of
the New Warburg Funds.
Federal Income Tax Consequences. The exchange of assets of each Existing
Warburg Fund for shares of the corresponding New Warburg Fund is intended to
qualify for federal income tax purposes as a tax-free reorganization under
Section 368(a) of the Internal Revenue Code of 1986, as amended (the 'Code'). As
a condition to the closing of the Reorganization, each New Warburg Fund and The
RBB Fund on behalf of the corresponding Existing Warburg Fund will receive an
opinion from Willkie Farr & Gallagher, counsel to the New Warburg Funds, to the
effect that, on the basis of the existing provisions of the Code, U.S. Treasury
regulations issued thereunder, current administrative rules, pronouncements and
court decisions, for federal income tax purposes, upon consummation of the
Reorganization:
(1) the transfer of all or substantially all of each Existing Warburg
Fund's assets in exchange for the corresponding New Warburg Fund's shares
and the assumption by the New Warburg Fund of liabilities of the Existing
Warburg Fund will constitute a 'reorganization' within the meaning of
Section 368(a) of the Code, and the New Warburg Fund and the corresponding
Existing Warburg Fund are each a 'party to a reorganization' within the
meaning of Section 368(b) of the Code;
(2) no gain or loss will be recognized by each New Warburg Fund upon
the receipt of the assets of the corresponding Existing Warburg Fund solely
in exchange for the New Warburg Fund's shares and the assumption by the New
Warburg Fund of liabilities of the corresponding Existing Warburg Fund;
(3) no gain or loss will be recognized by each Existing Warburg Fund
upon the transfer of the Existing Warburg Fund's assets to the
corresponding New Warburg Fund in exchange for the New Warburg Fund's
shares and the assumption by the New Warburg Fund of liabilities of the
Existing Warburg Fund or upon the distribution (whether actual or
constructive) of the New Warburg Fund's shares to the Existing Warburg
Fund's shareholders;
(4) no gain or loss will be recognized by shareholders of each
Existing Warburg Fund upon the exchange of their shares for shares of the
corresponding New Warburg Fund and the assumption by the New Warburg Fund
of liabilities of the Existing Warburg Fund;
(5) the aggregate tax basis of the shares of each New Warburg Fund
received by each shareholder of the corresponding Existing Warburg Fund
pursuant to the Reorganization will be the same as the aggregate tax basis
of shares of the Existing Warburg Fund held by such shareholder immediately
prior to the Reorganization, and the holding period of shares of the New
Warburg Fund to be received by each shareholder of the Existing Warburg
Fund will include the period during which shares of the Existing Warburg
Fund exchanged therefor were held by such shareholder (provided shares of
the Existing Warburg Fund were held as capital assets on the date of the
Reorganization); and
(6) the tax basis of each Existing Warburg Fund's assets acquired by
the corresponding New Warburg Fund will be the same as the tax basis of
such assets to the Existing Warburg Fund immediately prior to the
Reorganization, and the holding period of the assets of the Existing
13
<PAGE>
<PAGE>
Warburg Fund in the hands of the New Warburg Fund will include the period
during which those assets were held by the Existing Warburg Fund.
Shareholders of each Existing Warburg Fund should consult their tax
advisors regarding the effect, if any, of the proposed Reorganization in light
of their individual circumstances. Since the foregoing discussion only relates
to the federal income tax consequences of the Reorganization, shareholders of
each Existing Warburg Fund should also consult their tax advisors as to state
and local tax consequences, if any, of the Reorganization.
Capitalization. The following table shows the capitalization of each Fund
as of the close of business on February 29, 1996 and the combined pro forma
capitalization as if each Reorganization had occurred as of the close of
business on that date.
<TABLE>
<CAPTION>
EXISTING WARBURG FUND NEW WARBURG FUND PRO FORMA
(UNAUDITED) (UNAUDITED) COMBINED
--------------------- ---------------- -----------------
<S> <C> <C> <C>
GROWTH & INCOME FUND -- Common Shares
Net assets................................. $1,050,086,210.11 0 $1,050,086,210.11
Net asset value per share.................. $ 16.24 0 $ 16.24
Shares outstanding......................... 64,647,776.8490 64,647,776.8490
GROWTH & INCOME FUND -- Advisor Shares
Net assets................................. $ 80,037,316.87 0 $ 80,037,316.87
Net asset value per share.................. $ 16.23 0 $ 16.23
Shares outstanding......................... 4,932,004.8370 4,932,004.8370
BALANCED FUND -- Common Shares
Net assets................................. $ 19,578,313.86 0 $ 19,578,313.86
Net asset value per share.................. $ 11.85 0 $ 11.85
Shares outstanding......................... 1,652,037.6760 1,652,037.6760
BALANCED FUND -- Advisor Shares
Net assets................................. $ 1,316.65 0 $ 1,316.65
Net asset value per share.................. $ 11.85 0 $ 11.85
Shares outstanding......................... 111.0930 111.0930
TAX FREE FUND -- Common Shares
Net assets................................. $ 4,416,268.07 0 $ 4,416,268.07
Net asset value per share.................. $ 10.62 0 $ 10.62
Shares outstanding......................... 415,857.4290 415,857.4290
</TABLE>
The New Warburg Funds will not commence operations until consummation of
the Reorganizations and, accordingly, as of March 1, 1996 there were no
outstanding shares of the New Warburg Funds.
As of the Record Date, the officers and directors of the RBB Fund
beneficially owned as a group less than 1% of the outstanding shares of each
Existing Warburg Fund. To the best knowledge of the RBB Fund, as of the Record
Date, no shareholder or 'group' (as that term is used in Section 13(d) of the
Securities Exchange Act of 1934 (the 'Exchange Act')), except as set forth in
the following table,
14
<PAGE>
<PAGE>
owned beneficially or of record more than 5% of the outstanding shares of a
class of an Existing Warburg Fund.
<TABLE>
<CAPTION>
PERCENT OWNED
EXISTING AS OF RECORD
WARBURG FUND NAME AND ADDRESS DATE
- ------------------------------------------ ----------------------------------------------------- -------------
<S> <C> <C>
Warburg Pincus Growth & Income Charles Schwab & Co., Inc. 34.37%
Fund -- Common Shares Reinvest Account
Attn: Mutual Funds Dept.
101 Montgomery Street
San Francisco, CA 94104-4122
Nat'l Financial Svs. Corp. 11.41%
P.O. Box 3908
Church Street Station
New York, NY 10008
Warburg Pincus Growth & Income Connecticut General Life Ins. Co. 98.68%
Fund -- Advisor Shares CIGNA Corp.
P.O. Box 2975
Hartford, CT 06104
Warburg Pincus Balanced Fund -- Common Charles Schwab & Co., Inc. 41.81%
Shares Reinvest Account
Attn: Mutual Funds Dept.
101 Montgomery Street
San Francisco, CA 94104-4122
Nat'l Financial Svs. Corp. 24.58%
P.O. Box 3908
Church Street Station
New York, NY 10008
Warburg Pincus Balanced Fund -- Advisor Warburg, Pincus Counsellors, Inc. 85.34%
Shares Attn: Stephen Distler
466 Lexington Avenue
New York, NY 10017
Warburg Pincus Tax Free Fund -- Common Gruntal & Co. 10.93%
Shares 14 Wall Street
New York, NY 10005
Gruntal & Co. 9.71%
14 Wall Street
New York, NY 10005
</TABLE>
COMPARISON OF INVESTMENT OBJECTIVES AND POLICIES
The following discussion is based upon and qualified in its entirety by the
disclosures in the Prospectuses and Statements of Additional Information of the
New Warburg Funds and the Existing Warburg Funds.
Investment Objectives. As stated above each Existing Warburg Fund and its
corresponding New Warburg Fund have the same investment objective. There can be
no assurance that any Fund will achieve its investment objective. The investment
objectives of the New Warburg Funds, like those of the Existing Warburg Funds,
may be changed by the Board of Directors without the affirmative vote of the
holders of a majority of the outstanding shares of the relevant Fund (as defined
in the 1940 Act).
Primary Investments. The New Warburg Funds were organized for the purpose
of acquiring the assets of the corresponding Existing Warburg Funds and have the
same portfolio managers. In addition, the investment policies and investment
restrictions of the New Warburg Funds were developed so that they would be
identical to those of the corresponding Existing Warburg Funds, except as
follows:
(1) the borrowing limit of the New Growth & Income Fund is 30% of
total assets, while that of the Existing Growth & Income Fund is 10%; and
15
<PAGE>
<PAGE>
(2) the New Growth & Income Fund may pledge up to 125% of any amount
it borrows while the Existing Growth & Income Fund may pledge up to the
lesser of the amount borrowed or 10% of its assets at the time of
borrowing.
All of the investment restrictions of the Existing Warburg Funds are
fundamental and cannot be changed without the approval of the holders of a
majority of a Fund's outstanding shares. While the New Warburg Funds have the
same investment restrictions (except as previously stated), the following
restrictions have been reclassified as nonfundamental and can be changed by a
New Warburg Fund's Board of Directors without shareholder approval: (i) the
prohibition of a Fund investing in oil, gas or mineral-related programs or
leases; (ii) the prohibition of a Fund investing in securities issued by any
other investment company; and (iii) the prohibition of a Fund making investments
for purposes of exercising control or management. Warburg has no current
intention of recommending any change to any nonfundamental investment policy of
the New Warburg Funds for the first year of their operations.
MANAGEMENT OF THE FUND
Warburg will provide investment advisory services to each New Warburg Fund
under an advisory agreement substantially identical to the advisory agreement
currently in effect between Warburg and the RBB Fund relating to each Existing
Warburg Fund. The same persons who today are responsible for the day-to-day
management of each Existing Warburg Fund will continue in that role after the
Reorganizations. In addition, PFPC and Counsellors Funds Services Inc. would
continue to provide accounting and co-administrative services, as applicable,
and CSI would continue to provide distribution services, each under new
agreements substantially identical to those now in effect for each Existing
Warburg Fund. In particular, the advisory fees, co-administration fees and
distribution fees payable under the related agreements would not be changed as a
result of the Reorganizations.
State Street Bank and Trust Company will continue its role as shareholder
servicing agent, transfer agent and dividend disbursing agent after the
Reorganizations. PNC Bank will continue to serve as custodian and State Street
Bank as co-custodian for foreign securities. The fees payable for transfer
agency and custodial services will be no higher after the Reorganizations than
before. Coopers & Lybrand L.L.P., the auditors for the Existing Warburg Funds,
will also serve in that capacity for the New Warburg Funds.
INTEREST OF WARBURG IN THE REORGANIZATIONS
Warburg may be deemed to have an interest in the Plan and the
Reorganizations because it provides investment advisory services to the Existing
Warburg Funds. Warburg receives compensation from the Existing Warburg Funds for
services it provides pursuant to advisory agreements. The terms and provisions
of these arrangements are described in the New Warburg Fund Prospectuses under
'Management of the Fund -- Investment Adviser.' Future growth of assets of the
New Warburg Funds, if any, can be expected to increase the total amount of fees
payable to Warburg and its affiliates and to reduce the amount of fees and
expenses required to be waived to maintain total fees and expenses of the New
Warburg Funds at agreed upon levels. Warburg may also be deemed to have an
interest in the Plan and the Reorganizations because, as of the Record Date, it
or one or more of its affiliates possessed or shared voting power or investment
power as a fiduciary on behalf of its customers in the Existing Warburg Funds.
Warburg and its affiliates have advised the Existing Warburg Funds that it
intends to vote the shares over which it has voting power at the Meeting in the
manner instructed by the customers for which such shares are held. See 'Voting
Information.'
INFORMATION ON SHAREHOLDERS' RIGHTS
General. The RBB Fund and the New Warburg Funds are open-end diversified
management investment companies registered under the 1940 Act, which
continuously offer to sell shares at their current net asset values. Each
Existing Warburg Fund is a series of the RBB Fund, which is a Maryland
corporation that was incorporated on February 29, 1988 and is governed by its
Articles of Incorporation, By-Laws and Board of Directors. Each New Warburg Fund
is a Maryland corporation organized on January 24, 1996 and is governed by its
Articles of Incorporation, By-Laws and Board of
16
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Directors. Each Fund is also governed by applicable state and federal law. The
RBB Fund has an authorized capital of thirty billion shares of common stock with
a par value of $.001 per share. Each New Warburg Fund has an authorized capital
of three billion shares of common stock with a par value of $.001 per share. The
Board of Directors of the RBB Fund has authorized the issuance of seventeen
series of shares, each representing shares in one of seventeen separate
portfolios, and may authorize the issuance of additional series of shares in the
future. The assets of each portfolio are segregated and separately managed and a
shareholder's interest is in the assets of the portfolio in which he or she
holds shares. In each New Warburg Fund and each Existing Warburg Fund, shares
represent interests in the assets of the relevant Fund and have identical
voting, dividend, liquidation and other rights on the same terms and conditions
except that expenses related to the distribution of each class of shares of a
Fund are borne solely by such class and each class of shares has exclusive
voting rights with respect to provisions of such Fund's Rule 12b-1 distribution
plan pertaining to a particular class.
Multi-Class Structure. The New and Existing Tax Free Funds have issued only
one class of shares. The New and Existing Growth & Income Funds and the Balanced
Funds each have issued two classes of shares: Common Shares and Advisor Shares.
Individual investors may purchase Advisor Shares only through institutional
shareholders of record, broker-dealers, financial institutions, depository
institutions and other financial intermediaries ('Institutions').
The New and Existing Growth & Income and Balanced Funds are authorized to
offer Advisor Shares exclusively to Institutions whose clients or customers (or
participants in the case of retirement plans) ('Customers') are beneficial
owners of Advisor Shares. Either those Institutions or companies providing
certain services to them (together, 'Service Organizations') will enter into
service agreements ('Agreements') related to the sale of the Advisor Shares with
CSI pursuant to a Distribution Plan. Pursuant to the terms of an Agreement, the
Service Organization agrees to perform certain distribution, shareholder
servicing, administrative and/or accounting services for its Customers.
Distribution services would be marketing or other services in connection with
the promotion and sale of Advisor Shares. Shareholder services that may be
provided include responding to Customer inquiries, providing information on
Customer investments and providing other shareholder liaison services. See
'Shareholder Servicing' in the Prospectuses of the Existing New Warburg Funds
for Advisor Shares.
Directors. The By-Laws of the RBB Fund and of each New Warburg Fund provide
that the term of office of each Director shall be from the time of his or her
election and qualification until the next annual meeting of shareholders and
until his or her successor shall have been elected and shall have qualified. Any
Director of the RBB Fund or any New Warburg Fund may be removed by the vote of
at least a majority of the shares of capital stock then entitled to be cast for
the election of Directors. Vacancies on the Boards of the RBB Fund or any New
Warburg Fund may be filled by the Directors remaining in office. A meeting of
shareholders will be required for the purpose of electing additional Directors
whenever fewer than a majority of the Directors then in office were elected by
shareholders.
Voting Rights. Neither the RBB Fund nor any New Warburg Fund holds a
meeting of shareholders annually, and there normally is no meeting of
shareholders for the purpose of electing Directors unless and until such time as
less than a majority of the Directors holding office have been elected by
shareholders.
Liquidation or Termination. In the event of the liquidation or termination
of any of the investment funds of the RBB Fund or of any New Warburg Fund, the
shareholders of the fund are entitled to receive, when and as declared by the
Directors, the excess of the assets over the liabilities belonging to the fund.
In either case, the assets so distributed to shareholders will be distributed
among the shareholders in proportion to the number of shares of each class held
by them and recorded on the books of the fund.
Liability of Directors. The Articles of Incorporation of the RBB Fund and
of each New Warburg Fund provide that the Directors and officers shall not be
liable for monetary damages for breach of fiduciary duty as a Director or
officer, except to the extent such exemption is not permitted by law. The
Articles of Incorporation further provide that the RBB Fund and each New Warburg
Fund shall indemnify each Director and officer and provide advances for the
payment of expenses relating to the matter for which indemnification is sought,
each to the fullest extent permitted by Maryland General Corporation Law and
other applicable law. Pursuant to the Plan, each New Warburg Fund extends this
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same protection to current Directors and officers of the RBB Fund for liability
relating to the corresponding Existing Warburg Fund.
Rights of Inspection. Maryland law permits any shareholder of the RBB Fund
and of each New Warburg Fund or any agent of such shareholder to inspect and
copy, during usual business hours, the By-Laws, minutes of shareholder
proceedings, annual statements of the affairs and voting trust agreements of the
RBB Fund and the New Warburg Fund on file at its principal offices.
Shareholder Liability. Under Maryland law, shareholders of the RBB Fund and
of each New Warburg Fund do not have personal liability for corporate acts and
obligations. Shares of a New Warburg Fund issued to the shareholders of the
corresponding Existing Warburg Fund in the Reorganization will be fully paid and
nonassessable when issued, transferable without restrictions and will have no
preemptive rights.
The foregoing is only a summary of certain characteristics of the
operations of the New Warburg Funds and the RBB Fund on behalf of the Existing
Warburg Funds. The foregoing is not a complete description of the documents
cited. Shareholders should refer to the provisions of the corporate documents
and state laws governing each Fund for a more thorough description.
ADDITIONAL INFORMATION
Both the RBB Fund and the New Warburg Funds are subject to the
informational requirements of the Exchange Act and the 1940 Act and in
accordance therewith file reports and other information including proxy
material, reports and charter documents, with the SEC. These materials can be
inspected and copies obtained at the Public Reference Facilities maintained by
the SEC at 450 Fifth Street, N.W., Washington, D.C. 20549 and at the New York
Regional Office of the SEC at 7 World Trade Center, Suite 1300, New York, New
York 10048. Copies of such material can also be obtained from the Public
Reference Branch, Office of Consumer Affairs and Information Services, SEC,
Washington, D.C. 20549 at prescribed rates.
VOTING INFORMATION
This Combined Prospectus/Proxy Statement is furnished in connection with a
solicitation of proxies by the Board of Directors of the RBB Fund to be used at
the Special Meeting of Shareholders of the Existing Warburg Funds to be held at
3:00 p.m. on May 1, 1996, at the offices of The RBB Fund, Inc., 400 Bellevue
Parkway, Wilmington, Delaware 19809 and at any adjournment or adjournments
thereof. This Combined Prospectus/Proxy Statement, along with a Notice of the
Meeting and proxy card(s), is first being mailed to shareholders of the Existing
Warburg Funds on or about March 8, 1996. Only shareholders of record as of the
close of business on the Record Date will be entitled to notice of, and to vote
at, the Meeting or any adjournment thereof. As of the Record Date, the Existing
Warburg Funds had the following shares outstanding and entitled to vote:
Existing Growth & Income Fund 63,992,111.6950 (Common Shares), 4,939,664.0300
(Advisor Shares); Existing Balanced Fund 1,665,020.2620 (Common Shares),
111.0930 (Advisor Shares); and Existing Tax Free Fund 416,881.9450 (Common
Shares). The holders of one-third of the shares of an Existing Warburg Fund
outstanding at the close of business on the Record Date present in person or
represented by proxy will constitute a quorum for the Meeting of that Fund. For
purposes of determining a quorum for transacting business at the Meeting,
abstentions and broker 'nonvotes' (that is, proxies from brokers or nominees
indicating that such persons have not received instructions from the beneficial
owner or other persons entitled to vote shares on a particular matter with
respect to which the brokers or nominees do not have discretionary power) will
be treated as shares that are present but which have not been voted. For this
reason, abstentions and broker nonvotes will have the effect of a 'no' vote for
purposes of obtaining the requisite approval of the Plan. If the enclosed proxy
is properly executed and returned in time to be voted at the Meeting, the
proxies named therein will vote the shares represented by the proxy in
accordance with the instructions marked thereon. Unmarked proxies will be voted
FOR approval of the relevant Plan and FOR approval of any other matters deemed
appropriate. A proxy may be revoked at any time on or before the Meeting by
written notice to the Secretary of The RBB Fund, Inc., Bellevue Park Corporate
Center, 400 Bellevue Parkway, Suite 100, Wilmington, Delaware 19809.
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Approval of the Plan with respect to each Existing Warburg Fund will
require the affirmative vote of a majority of each Existing Warburg Fund's
outstanding shares, voting in the aggregate without regard to class, in person
or by proxy, if a quorum is present. The approval of shareholders of any other
investment series of the RBB Fund is not required. Implementing the
Reorganization by any one Existing Warburg Fund would not be conditioned on
receipt of shareholder approval by any other Existing Warburg Fund. Shareholders
of the Existing Warburg Funds are entitled to one vote for each share.
Proxy solicitations will be made primarily by mail, but proxy solicitations
also may be made by telephone, telegraph or personal interviews conducted by
officers and employees of Warburg and/or by PFPC or their respective affiliates.
In addition, D.F. King & Co. Inc. ('D.F. King'), or an agent of D.F. King may
call shareholders to ask if they would be willing to authorize D.F. King or its
agent to execute a proxy on their behalf authorizing the voting of their shares
in accordance with the instructions given over the telephone by the
shareholders. The latter telephone solicitation procedure is designed to
authenticate the shareholder's identity by, among other things, asking the
shareholder to provide his or her social security number (in the case of an
individual) or taxpayer identification number (in the case of an entity). The
shareholder's instructions will be implemented in a proxy executed by D.F. King
or its agent and a confirmation will be sent to the shareholder to ensure that
the vote has been authorized in accordance with the shareholder's instructions.
Although a shareholder's vote may be solicited and cast in this manner, each
shareholder will receive a copy of this Combined Prospectus/Proxy Statement and
may vote by mail or by fax using the enclosed proxy card. The Existing Warburg
Funds believe that this telephone voting system will comply with Maryland law
and will obtain an opinion of counsel to that effect prior to implementing such
procedures. The aggregate cost of solicitation of the shareholders of the
Existing Warburg Funds is expected to be approximately $54,000 to $78,000. All
expenses of the Reorganization, including the costs of the proxy solicitation
and the preparation of enclosures to the Combined Prospectus/Proxy Statement,
reimbursement of expenses of forwarding solicitation material to beneficial
owners of shares of the Existing Warburg Funds and expenses incurred in
connection with the preparation of this Combined Prospectus/Proxy Statement will
be borne by Warburg or its affiliates (excluding extraordinary expenses not
normally associated with transactions of this type) and not by the Funds. It is
anticipated that banks, brokerage houses and other institutions, nominees and
fiduciaries will be requested to forward proxy materials to beneficial owners
and to obtain authorization for the execution of proxies. Warburg or its
affiliates, may, upon request, reimburse banks, brokerage houses and other
institutions, nominees and fiduciaries for their expenses in forwarding proxy
materials to beneficial owners.
In the event that a quorum necessary for a shareholders' meeting is not
present or sufficient votes to approve the Reorganization of an Existing Warburg
Fund are not received by May 1, 1996, the persons named as proxies may propose
one or more adjournments of the Meeting to permit further solicitation of
proxies. In determining whether to adjourn the Meeting, the following factors
may be considered: the percentage of votes actually cast, the percentage of
negative votes actually cast, the nature of any further solicitation and the
information to be provided to shareholders with respect to the reasons for the
solicitation. Any such adjournment will require an affirmative vote by the
holders of a majority of the shares of the relevant Existing Warburg Fund
present in person or by proxy and entitled to vote at the Meeting. The persons
named as proxies will vote upon a decision to adjourn the Meeting with respect
to an Existing Warburg Fund after consideration of the best interests of all
shareholders of that Fund.
As of the Record Date, Warburg (or its affiliates) possessed or shared
voting power or investment power as a fiduciary on behalf of its customers, with
respect to the following number of shares (constituting the percentage of
outstanding shares indicated in parentheses) of each of the respective Existing
Warburg Funds: Existing Warburg Growth & Income Fund, 6,519,945.608 (10.19%);
Existing Warburg Balanced Fund, 19,351.726 (1.17%); and Existing Warburg Tax
Free Fund, 34,729.816 (8.33%).
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OTHER BUSINESS
The RBB Fund Board of Directors knows of no other business to be brought
before the Meeting. However, if any other matters come before the Meeting,
proxies that do not contain specific restrictions to the contrary will be voted
on such matters in accordance with the judgment of the persons named in the
enclosed Proxy Card.
The approval of shareholders of the New Warburg Funds is not required in
order to affect the Reorganizations and, accordingly, the votes of the
shareholders of the New Warburg Funds are not being solicited by this Combined
Prospectus/Proxy Statement.
FINANCIAL STATEMENTS AND EXPERTS
The audited statement of assets and liabilities of each Existing Warburg
Fund, including the schedule of portfolio investments, as of August 31, 1995,
the related statements of operations for the year then ended, the statement of
changes in net assets for each of the two years in the period then ended and the
financial highlights for each of the years in the five-year period then ended,
have been incorporated by reference into this Combined Prospectus/Proxy
Statement in reliance upon the reports of Coopers & Lybrand L.L.P., independent
accountants, given on the authority of such firm as experts in accounting and
auditing. There is no financial information available at this time for the New
Warburg Funds, which have not yet commenced operations.
LEGAL MATTERS
Certain legal matters concerning the issuance of shares of the New Warburg
Funds will be passed upon by Willkie Farr & Gallagher, One Citicorp Center, 153
East 53rd Street, New York, New York 10022, counsel to the New Warburg Funds. In
rendering such opinion, Willkie Farr & Gallagher may rely on an opinion of
Venable, Baetjer and Howard, L.L.P. as to certain matters under Maryland law.
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EXHIBIT A
FORM OF AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the 'Agreement') is made as of
this 6th day of March, 1996, between and among Warburg, Pincus
Fund, Inc., a Maryland corporation (the 'New Warburg Fund'),
and The RBB Fund, Inc., a Maryland corporation (the 'RBB Fund'), on behalf of
the Warburg Pincus Fund, a series of shares of the RBB Fund
(the 'Existing Warburg Fund').
This Agreement is intended to be and is adopted as a plan of reorganization
and liquidation within the meaning of Section 368(a) of the United States
Internal Revenue Code of 1986, as amended (the 'Code'). The reorganization of
the Existing Warburg Fund (collectively, the 'Reorganization') will consist of
the transfer of substantially all of the assets of the Existing Warburg Fund in
exchange solely for shares of the applicable class of common stock
(collectively, the 'Shares'), of the New Warburg Fund corresponding thereto, as
indicated in the table set forth in Schedule A hereto, and the assumption by the
New Warburg Fund of liabilities of the Existing Warburg Fund and the
distribution, after the Closing Date hereinafter referred to, of New Warburg
Fund Shares to the shareholders of the Existing Warburg Fund in liquidation of
the Existing Warburg Fund as provided herein, all upon the terms and conditions
hereinafter set forth in this Agreement.
WHEREAS, the Board of Directors of the RBB Fund on behalf of the Existing
Warburg Fund has determined that the exchange of all of the assets and the
liabilities of the Existing Warburg Fund for New Warburg Fund Shares and the
assumption of such liabilities by the New Warburg Fund is in the best interests
of the RBB Fund and the Existing Warburg Fund and that the interests of the
existing shareholders of the RBB Fund and the Existing Warburg Fund would not be
diluted as a result of this transaction; and
WHEREAS, the Board of Directors of the New Warburg Fund has determined that
the exchange of all of the assets of the Existing Warburg Fund for New Warburg
Fund Shares is in the best interests of the New Warburg Fund's shareholders and
that the interests of the existing shareholders of the New Warburg Fund would
not be diluted as a result of this transaction.
NOW, THEREFORE, in consideration of the premises and of the covenants and
agreements hereinafter set forth, the parties hereto covenant and agree as
follows:
1. TRANSFER OF ASSETS OF THE EXISTING WARBURG FUND IN EXCHANGE FOR NEW WARBURG
FUND SHARES AND ASSUMPTION OF THE EXISTING WARBURG FUND'S LIABILITIES AND
LIQUIDATION OF THE EXISTING WARBURG FUND
1.1. Subject to the terms and conditions herein set forth and on the basis
of the representations and warranties contained herein, the RBB Fund agrees to
transfer the Existing Warburg Fund's assets as set forth in paragraph 1.2 to the
New Warburg Fund identified in Schedule A, and the New Warburg Fund agrees in
exchange therefor: (i) to deliver to the RBB Fund the number of New Warburg Fund
Shares, including fractional New Warburg Fund Shares, determined by dividing the
value of the Existing Warburg Fund's net assets attributable to each class of
shares, computed in the manner and as of the time and date set forth in
paragraph 2.1, by the net asset value of one New Warburg Fund Share of the same
class, computed in the manner and as of the time and date set forth in paragraph
2.2; and (ii) to assume the liabilities of the Existing Warburg Fund, as set
forth in paragraph 1.3. Such transactions shall take place at the closing
provided for in paragraph 3.1 (the 'Closing').
1.2. (a) The assets of the Existing Warburg Fund to be acquired by the New
Warburg Fund shall consist of all property including, without limitation, all
cash, securities and dividend or interest receivables which are owned by the
Existing Warburg Fund and any deferred or prepaid expenses shown as an asset on
the books of the Existing Warburg Fund on the closing date provided in paragraph
3.1 (the 'Closing Date').
(b) The RBB Fund, on behalf of the Existing Warburg Fund, has provided the
New Warburg Fund with a list of all of the Existing Warburg Fund's assets as of
the date of execution of this Agreement.
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The RBB Fund, on behalf of the Existing Warburg Fund, reserves the right to sell
any of these securities but will not, without the prior approval of the New
Warburg Fund, acquire any additional securities other than securities of the
type in which the New Warburg Fund is permitted to invest. The RBB Fund, on
behalf of the Existing Warburg Fund, will, within a reasonable time prior to the
Closing Date, furnish the New Warburg Fund with a list of the securities, if
any, on the Existing Warburg Fund's list referred to in the first sentence of
this paragraph which do not conform to the New Warburg Fund's investment
objectives, policies and restrictions. In the event that the Existing Warburg
Fund holds any investments which the New Warburg Fund may not hold, the Existing
Warburg Fund will dispose of such securities prior to the Closing Date. In
addition, if it is determined that the portfolios of the Existing Warburg Fund
and the New Warburg Fund, when aggregated, would contain investments exceeding
certain percentage limitations imposed upon the New Warburg Fund with respect to
such investments, the Existing Warburg Fund, if requested by the New Warburg
Fund, will dispose of and/or reinvest a sufficient amount of such investments as
may be necessary to avoid violating such limitations as of the Closing Date.
1.3. The RBB Fund, on behalf of the Existing Warburg Fund, will endeavor to
discharge all the Existing Warburg Funds' known liabilities and obligations
prior to the Closing Date, other than those liabilities and obligations which
would otherwise be discharged at a later date in the ordinary course of
business. The New Warburg Fund shall assume all liabilities, expenses, costs,
charges and reserves, including those liabilities reflected on an unaudited
statement of assets and liabilities of the Existing Warburg Fund prepared by
PFPC Inc., as of the Valuation Date (as defined in paragraph 2.1), in accordance
with generally accepted accounting principles consistently applied from the
prior audited period. The New Warburg Fund shall also assume any liabilities,
expenses, costs or charges incurred by or on behalf of the Existing Warburg Fund
specifically arising from or relating to the operations and/or transactions of
the Existing Warburg Fund prior to and including the Closing Date but which are
not reflected on the above-mentioned statement of assets and liabilities,
including any liabilities, expenses, costs or charges arising under paragraph
5.10 hereof.
1.4. As provided in paragraph 3.4, as soon after the Closing Date as is
conveniently practicable (the 'Liquidation Date'), the Existing Warburg Fund
will liquidate and distribute pro rata to the Existing Warburg Fund's
shareholders of record determined as of the close of business on the Closing
Date (the 'Existing Warburg Fund Shareholders') the New Warburg Fund Shares it
receives pursuant to paragraph 1.1. Such liquidation and distribution will be
accomplished by the transfer of the New Warburg Fund Shares then credited to the
account of the Existing Warburg Fund on the books of the New Warburg Fund to
open accounts on the share records of the New Warburg Fund in the name of the
Existing Warburg Fund's shareholders representing the respective pro rata number
of the New Warburg Fund Shares of the particular class due such shareholders.
All issued and outstanding shares of the Existing Warburg Fund will
simultaneously be canceled on the books of the RBB Fund, although share
certificates representing interests in the Existing Warburg Fund will represent
a number of New Warburg Fund Shares after the Closing Date as determined in
accordance with Section 2.3. The New Warburg Fund shall not issue certificates
representing the New Warburg Fund Shares in connection with such exchange.
1.5. Ownership of New Warburg Fund Shares will be shown on the books of the
New Warburg Fund's transfer agent. Shares of the New Warburg Fund will be issued
in the manner described in the New Warburg Fund's current prospectus and
statement of additional information.
1.6. Any transfer taxes payable upon issuance of the New Warburg Fund
Shares in a name other than the registered holder of the Existing Warburg Fund
Shares on the books of the Existing Warburg Fund as of that time shall, as a
condition of such issuance and transfer, be paid by the person to whom such New
Warburg Fund shares are to be issued and transferred.
1.7. Any reporting responsibility of the Existing Warburg Fund is and shall
remain the responsibility of the RBB Fund up to and including the applicable
Closing Date and such later dates on which the Existing Warburg Fund is
terminated.
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2. VALUATION
2.1. The value of the Existing Warburg Fund's assets to be acquired
hereunder shall be the value of such assets computed as of the close of regular
trading on the New York Stock Exchange, Inc. (the 'NYSE') on the applicable
Closing Date (such time and date being hereinafter called the 'Valuation Date'),
using the valuation procedures set forth in the Existing Warburg Fund's then
current prospectus or statement of additional information.
2.2. The net asset value of each class of Shares of the New Warburg Fund
shall be the net asset value per share computed as of the Valuation Date, using
the valuation procedures set forth in the New Warburg Fund's then current
prospectus or statement of additional information.
2.3. The number of Shares of each class of the New Warburg Fund to be
issued (including fractional shares, if any) in exchange for the Existing
Warburg Fund's net assets shall be determined by dividing the value of the net
assets of the Existing Warburg Fund attributable to the respective classes of
Shares determined using the same valuation procedures referred to in paragraph
2.1 by the net asset value per Share of such class of the New Warburg Fund
determined in accordance with paragraph 2.2.
2.4. All computations of value shall be made by PFPC Inc. in accordance
with its regular practice as pricing agent for the Existing Warburg Fund and New
Warburg Fund, respectively.
3. CLOSING AND CLOSING DATE
3.1. The Closing Date for the Reorganization shall be May 3, 1996, or such
other date as the parties to such Reorganization may agree to in writing. All
acts taking place at the Closing shall be deemed to take place simultaneously as
of the close of business on the Closing Date unless otherwise provided. The
Closing shall be held as of 4:00 p.m., at the offices of PFPC Inc., 400 Bellevue
Parkway, Wilmington, Delaware 19809, or at such other time and/or place as the
parties may agree.
3.2. The custodian for the New Warburg Fund (the 'Custodian'), shall
deliver at the Closing a certificate of an authorized officer stating that: (a)
the Existing Warburg Fund's portfolio securities, cash and any other assets
shall have been delivered in proper form to the New Warburg Fund prior to or on
the Closing Date and (b) all necessary taxes, including all applicable federal
and state stock transfer stamps, if any, shall have been paid, or provision for
payment shall have been made, in conjunction with the delivery of portfolio
securities.
3.3. In the event that on the Valuation Date (a) the NYSE or another
primary trading market for portfolio securities of the New Warburg Fund or the
Existing Warburg Fund shall be closed to trading or trading thereon shall be
restricted or (b) trading or the reporting of trading on the NYSE or elsewhere
shall be disrupted so that accurate appraisal of the value of the net assets of
the New Warburg Fund or the Existing Warburg Fund is impracticable, the
applicable Closing Date shall be postponed until the first business day after
the day when trading shall have been fully resumed and reporting shall have been
restored.
3.4. The RBB Fund, on behalf of the Existing Warburg Fund, shall deliver at
the Closing a list of the names and addresses of the Existing Warburg Fund's
shareholders and the number and class of outstanding Shares owned by each such
shareholder immediately prior to the Closing or provide evidence that such
information has been provided to the New Warburg Fund's transfer agent. The New
Warburg Fund shall issue and deliver a confirmation evidencing the New Warburg
Fund Shares to be credited to the Existing Warburg Fund's account on the Closing
Date to the Secretary of the RBB Fund or provide evidence satisfactory to the
RBB Fund that such New Warburg Fund Shares have been credited to the Existing
Warburg Fund's account on the books of the New Warburg Fund. At the Closing,
each party shall deliver to the relevant other parties such bills of sale,
checks, assignments, share certificates, if any, receipts or other documents as
such other party or its counsel may reasonably request.
4. REPRESENTATIONS AND WARRANTIES
4.1. The RBB Fund, on behalf of the Existing Warburg Fund, represents and
warrants to the New Warburg Fund as follows:
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(a) The RBB Fund is a Maryland corporation duly organized, validly
existing and in good standing under the laws of the State of Maryland and
the Existing Warburg Fund is a validly existing series of shares of the RBB
Fund representing interests in the Existing Warburg Fund under the laws of
the State of Maryland;
(b) The RBB Fund is a registered investment company classified as a
management company of the open-end type and its registration with the
Securities and Exchange Commission (the 'Commission') as an investment
company under the Investment Company Act of 1940, as amended (the '1940
Act'), is in full force and effect;
(c) The RBB Fund is not, and the execution, delivery and performance
of this Agreement will not result, in a violation of its Charter or By-Laws
or any material agreement, indenture, instrument, contract, lease or other
undertaking to which the RBB Fund or any Existing Warburg Fund is a party
or by which either of them or their property is bound;
(d) The Existing Warburg Fund has no contracts or other commitments
(other than this Agreement) which will be terminated with liability to the
Existing Warburg Fund prior to the Closing Date;
(e) Except as previously disclosed in writing to and accepted by the
New Warburg Fund, no litigation or administrative proceeding or
investigation of or before any court or governmental body is presently
pending or to its knowledge threatened against the Existing Warburg Fund or
any of its properties or assets which, if adversely determined, would
materially and adversely affect its financial condition or the conduct of
its business. The RBB Fund knows of no facts which might form the basis for
the institution of such proceedings and is not party to or subject to the
provisions of any order, decree or judgment of any court or governmental
body which materially and adversely affects its business or the business of
the Existing Warburg Fund or its ability to consummate the transactions
herein contemplated;
(f) The statements of assets and liabilities of the Existing Warburg
Fund for the six fiscal years ended August 31, 1995 and the period
beginning with commencement of the Existing Warburg Fund and ending August
31, 1989 have been audited by Coopers & Lybrand L.L.P., certified public
accountants, and are in accordance with generally accepted accounting
principles consistently applied, and such statements (copies of which have
been furnished to the New Warburg Fund) fairly reflect the financial
condition of the Existing Warburg Fund as of such dates, and there are no
known contingent liabilities of the Existing Warburg Fund as of such dates
not disclosed therein;
(g) Since August 31, 1995, there has not been any material adverse
change in the Existing Warburg Fund's financial condition, assets,
liabilities or business other than changes occurring in the ordinary course
of business, or any incurrence by the Existing Warburg Fund of indebtedness
maturing more than one year from the date that such indebtedness was
incurred, except as otherwise disclosed to and accepted by the New Warburg
Fund. For the purposes of this subparagraph (g), a decline in net asset
value per share or the total assets of the Existing Warburg Fund in the
ordinary course of business shall not constitute a material adverse change;
(h) At the Closing Date, all federal and other tax returns and reports
of each Existing Warburg Fund required by law to have been filed by such
dates shall have been filed, and all federal and other taxes shall have
been paid so far as due, or provision shall have been made for the payment
thereof and, to the best of the RBB Fund's knowledge, no such return is
currently under audit and no assessment has been asserted with respect to
such returns;
(i) For the most recent fiscal year of its operation, the Existing
Warburg Fund has met the requirements of Subchapter M of the Code for
qualification and treatment as a regulated investment company; all of the
Existing Warburg Fund's issued and outstanding shares have been offered and
sold in compliance in all material respects with applicable federal and
state securities laws;
(j) All issued and outstanding shares of each class of the Existing
Warburg Fund are, and at the applicable Closing Date will be, duly and
validly issued and outstanding, fully paid and non-assessable. All of the
issued and outstanding shares of the Existing Warburg Fund will, at the
time of Closing, be held by the persons and the amounts set forth in the
records of the transfer agent as
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provided in paragraph 3.4. The Existing Warburg Fund does not have
outstanding any options, warrants or other rights to subscribe for or
purchase any of the Existing Warburg Fund's shares, nor is there
outstanding any security convertible into any of the Existing Warburg
Fund's shares;
(k) At the applicable Closing Date, the RBB Fund will have good and
marketable title to the Existing Warburg Fund's assets to be transferred to
the New Warburg Fund pursuant to paragraph 1.2 and full right, power and
authority to sell, assign, transfer and deliver such assets hereunder and,
upon delivery and payment for such assets, the New Warburg Fund will
acquire good and marketable title thereto, subject to no restrictions on
the full transfer thereof, including such restrictions as might arise under
the Securities Act of 1933, as amended (the '1933 Act'), other than as
disclosed to the New Warburg Fund.
(l) The execution, delivery and performance of this Agreement has been
duly authorized by all necessary actions on the part of the RBB Fund's
Board of Directors, and subject to the approval of the Existing Warburg
Fund's shareholders, this Agreement will constitute a valid and binding
obligation of the RBB Fund, enforceable in accordance with its terms,
subject to the effect of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other laws relating to or affecting
creditors' rights and to general equity principles;
(m) The information to be furnished by the RBB Fund for use in
no-action letters, applications for exemptive orders, registration
statements, proxy materials and other documents which may be necessary in
connection with the transactions contemplated hereby shall be accurate and
complete in all material respects and shall comply in all material respects
with federal securities and other laws and regulations thereunder
applicable thereto;
(n) The proxy statement of the Existing Warburg Fund (the 'Proxy
Statement') to be included in the Registration Statement referred to in
paragraph 5.7 (other than information therein that relates to the New
Warburg Fund) will, on the effective date of the Registration Statement and
on the Closing Date, not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which such
statements were made, not materially misleading.
4.2. The New Warburg Fund represents and warrants to the Existing Warburg
Fund as follows:
(a) The New Warburg Fund is a Maryland corporation, duly organized,
validly existing and in good standing under the laws of the State of
Maryland;
(b) The New Warburg Fund is a registered investment company classified
as a management company of the open-end type and its registration with the
Commission as an investment company under the 1940 Act is in full force and
effect;
(c) The current prospectus and statement of additional information
filed as part of the New Warburg Fund registration statement on Form N-1A
(the 'New Warburg Fund Registration Statement') conform in all material
respects to the applicable requirements of the 1933 Act and the 1940 Act
and the rules and regulations of the Commission thereunder and do not
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not materially misleading;
(d) At the Closing Date, the New Warburg Fund will have good and
marketable title to its assets;
(e) The New Warburg Fund is not, and the execution, delivery and
performance of this Agreement will not result, in a violation of its
Charter or By-Laws or any material agreement, indenture, instrument,
contract, lease or other undertaking to which the New Warburg Fund is a
party or by which it is bound;
(f) Except as previously disclosed in writing to and accepted by the
RBB Fund, no litigation or administrative proceeding or investigation of or
before any court or governmental body is presently pending or to its
knowledge threatened against the New Warburg Fund or any of its properties
or assets which, if adversely determined, would materially and adversely
affect its financial condition or the conduct of its business. The New
Warburg Fund knows of no facts which might form the
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basis for the institution of such proceedings and is not a party to or
subject to the provisions of any order, decree or judgment of any court or
governmental body which materially and adversely affects its business or
its ability to consummate the transactions contemplated herein;
(g) Since the inception of the New Warburg Fund there has not been any
material adverse change with respect to the New Warburg Fund's financial
condition, assets, liabilities or business other than changes occurring in
the ordinary course of business, or any incurrence by the New Warburg Fund
of indebtedness maturing more than one year from the date that such
indebtedness was incurred. For the purposes of this subparagraph (h), a
decline in net asset value per share or the total assets of the New Warburg
Fund in the ordinary course of business shall not constitute a material
adverse change;
(h) At the Closing Date, all federal and other tax returns and reports
of the New Warburg Fund required by law then to be filed shall have been
filed, and all federal and other taxes shown as due on said returns and
reports shall have been paid or provision shall have been made for the
payment thereof;
(i) The New Warburg Fund intends to meet the requirements of
Subchapter M of the Code for qualification and treatment as a regulated
investment company in the future;
(j) At the date hereof, all issued and outstanding New Warburg Fund
Shares are, and at the Closing Date will be, duly and validly issued and
outstanding, fully paid and non-assessable, with no personal liability
attaching to the ownership thereof. The New Warburg Fund does not have
outstanding any options, warrants or other rights to subscribe for or
purchase any New Warburg Fund Shares, nor is there outstanding any security
convertible into any New Warburg Fund Shares;
(k) The execution, delivery and performance of this Agreement shall
have been duly authorized prior to the Closing Date by all necessary
actions, if any, on the part of the New Warburg Fund's Board of Directors
and the New Warburg Fund's shareholders, and this Agreement will constitute
a valid and binding obligation of the New Warburg Fund enforceable in
accordance with its terms, subject to the effect of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other laws relating
to or affecting creditors' rights and to general equity principles;
(l) The New Warburg Fund Shares to be issued and delivered to the
Existing Warburg Fund, for the account of the Existing Warburg Fund's
shareholders, pursuant to the terms of this Agreement, will at the Closing
Date have been duly authorized and, when so issued and delivered, will be
duly and validly issued New Warburg Fund Shares, and will be fully paid and
non-assessable with no personal liability attaching to the ownership
thereof;
(m) The information to be furnished by the New Warburg Fund for use in
no-action letters, applications for exemptive orders, registration
statements, proxy materials and other documents which may be necessary in
connection with the transactions contemplated hereby shall be accurate and
complete in all material respects and shall comply in all material respects
with federal securities and other laws and regulations applicable thereto;
(n) The Proxy Statement to be included in the Registration Statement
referred to in paragraph 5.7 (only insofar as it relates to the New Warburg
Fund) will, on the effective date of the Registration Statement and on the
Closing Date, not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which such
statements were made, not materially misleading; and
(o) The New Warburg Fund agrees to use all reasonable efforts to
obtain the approvals and authorizations required by the 1933 Act, the 1940
Act and such of the state Blue Sky or securities laws as it may deem
appropriate in order to continue its operations after the Closing Date.
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5. COVENANTS OF THE RBB FUND, THE NEW WARBURG FUND AND THE EXISTING WARBURG
FUND
5.1. The New Warburg Fund and the Existing Warburg Fund each will operate
its business in the ordinary course between the date hereof and the Closing
Date. It is understood that such ordinary course of business will include the
declaration and payment of customary dividends and distributions.
5.2. The RBB Fund, on behalf of the Existing Warburg Fund, will call a
meeting of its shareholders to consider and act upon this Agreement and to take
all other actions in co-ordination with the Existing Warburg Fund necessary to
obtain approval of the transactions contemplated herein.
5.3. The RBB Fund, on behalf of the Existing Warburg Fund, covenants that
the New Warburg Fund Shares to be issued hereunder are not being acquired for
the purpose of making any distribution thereof other than in accordance with the
terms of this Agreement.
5.4. The RBB Fund, on behalf of the Existing Warburg Fund, will assist the
New Warburg Fund in obtaining such information as the New Warburg Fund
reasonably requests concerning the beneficial ownership of the Existing Warburg
Fund's Shares.
5.5. Subject to the provisions of this Agreement, the New Warburg Fund and
the RBB Fund each will take, or cause to be taken, all action, and do or cause
to be done, all things reasonably necessary, proper or advisable to consummate
and make effective the transactions contemplated by this Agreement.
5.6. As promptly as practicable, but in any case within sixty days after
the Closing Date, the RBB Fund shall furnish the New Warburg Fund, in such form
as is reasonably satisfactory to the New Warburg Fund, a statement of the
earnings and profits of the Existing Warburg Fund for federal income tax
purposes which will be carried over to the New Warburg Fund as a result of
Section 381 of the Code, and which will be certified by the Existing Warburg
Fund's President and its Treasurer.
5.7. The RBB Fund, on behalf of the Existing Warburg Fund, will provide the
New Warburg Fund with information reasonably necessary for the preparation of a
prospectus (the 'Prospectus') which will include the Proxy Statement referred to
in paragraph 4.1(n), all to be included in a registration statement on Form N-14
of the New Warburg Fund (the 'Registration Statement'), in compliance with the
1933 Act, the Securities Exchange Act of 1934 (the '1934 Act') and the 1940 Act
in connection with the meeting of the RBB Fund's shareholders to consider
approval of this Agreement and the transactions contemplated herein.
5.8. The RBB Fund, on behalf of the Existing Warburg Fund, will provide the
New Warburg Fund with information reasonably necessary for the preparation of
the New Warburg Registration Statement.
5.9. As promptly as practicable, but in any case within thirty days of the
Closing Date, the RBB Fund shall furnish the New Warburg Fund with a statement
containing information required for purposes of complying with Rule 24f-2 under
the 1940 Act. A notice pursuant to Rule 24f-2 will be filed by the New Warburg
Fund offsetting redemptions by the Existing Warburg Fund during the fiscal year
ending on or after the applicable Closing Date against sales of New Warburg Fund
Shares and the RBB Fund agrees that it will not net redemptions during such
period by the Existing Warburg Fund against sales of shares of any other series
of the RBB Fund.
5.10. The New Warburg Fund agrees to indemnify and advance expenses to each
person who at the time of the execution of this Agreement serves as a Director
or Officer ('Indemnified Person') of the RBB Fund, against money damages
actually and reasonably incurred by such Indemnified Person in connection with
any claim that is asserted against such Indemnified Person arising out of such
person's service as a director or officer of the RBB Fund with respect to
matters specifically relating to the Existing Warburg Fund, provided that such
indemnification and advancement of expenses shall be permitted to the fullest
extent that is available under the Maryland General Corporation law and other
applicable law. This paragraph 5.10 shall not protect any such Indemnified
Person against any liability to the Existing Warburg Fund, the New Warburg Fund
or their shareholders to which he would otherwise be subject by reason of
willful misfeasance, bad faith, gross negligence or from reckless disregard of
the duties involved in the conduct of his office. An Indemnified Person seeking
indemnification shall be entitled to advances from the New Warburg Fund for
payment of the reasonable expenses incurred by him in connection with the matter
as to which he is seeking indemnification in the manner and to the
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fullest extent permissible under the Maryland General Corporation law and other
applicable law. Such Indemnified Person shall provide to the New Warburg Fund a
written affirmation of his good faith belief that the standard of conduct
necessary for indemnification by the New Warburg Fund has been met and a written
undertaking to repay any advance if it should ultimately be determined that the
standard of conduct has not been met. In addition, at least one of the following
additional conditions shall be met: (a) the Indemnified Person shall provide
security in form and amount acceptable to the New Warburg Fund for its
undertaking; (b) the New Warburg Fund is insured against losses arising by
reason of the advance; or (c) either a majority of a quorum of disinterested
non-party directors of the New Warburg Fund (collectively, the 'Disinterested
Directors'), or independent legal counsel experienced in mutual fund matters,
selected by the Indemnified Person, in a written opinion, shall have determined,
based on a review of facts readily available to the New Warburg Fund at the time
the advance is proposed to be made, that there is reason to believe that the
Director will ultimately be found to be entitled to indemnification.
6. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE EXISTING WARBURG FUND
The obligations of the RBB Fund to consummate the transactions provided for
herein with respect to the Existing Warburg Fund shall be subject, at its
election, to the performance by the New Warburg Fund of all of the obligations
to be performed by it hereunder on or before the Closing Date and, in addition
thereto, the following further conditions:
6.1. All representations and warranties of the New Warburg Fund
contained in this Agreement shall be true and correct in all material
respects as of the date hereof and, except as they may be affected by the
actions contemplated by this Agreement, as of the Closing Date with the
same force and effect as if made on and as of the Closing Date;
6.2. The New Warburg Fund shall have delivered to the RBB Fund a
certificate executed in its name by its President or Vice President and its
Secretary, Treasurer or Assistant Treasurer, in a form reasonably
satisfactory to the RBB Fund and dated as of the Closing Date, to the
effect that the representations and warranties of the New Warburg Fund made
in this Agreement are true and correct at and as of the Closing Date,
except as they may be affected by the transactions contemplated by this
Agreement and as to such other matters as the Existing Warburg Fund shall
reasonably request;
6.3. The RBB Fund shall have received written agreements from PFPC
Inc. and Counsellors Securities Inc. (or their affiliates) to maintain, for
a one year period from the Closing Date, the expense ratios of the RBB Fund
at the average net expense ratio for the thirty days ending on the Closing
Date. These expense ratios will be in effect except for increases in
expense ratios due to redemptions of shares outside of the ordinary course
of business; and
6.4. The RBB Fund shall have received on the Closing Date a favorable
opinion from Willkie Farr & Gallagher, counsel to the New Warburg Fund,
dated as of the Closing Date, in a form reasonably satisfactory to the RBB
Fund, covering the following points:
That (a) the New Warburg Fund is a validly existing corporation and
in good standing under the laws of the State of Maryland, has the
corporate power to own all of its properties and assets and to carry on
its business as a registered investment company; (b) the Agreement has
been duly authorized, executed and delivered by the New Warburg Fund
and, assuming that the Prospectus, Registration Statement and Proxy
Statement comply with the 1933 Act, the 1934 Act and the 1940 Act and
the rules and regulations thereunder and, assuming due authorization,
execution and delivery of the Agreement by the other parties thereto, is
a valid and binding obligation of the New Warburg Fund enforceable
against the New Warburg Fund in accordance with its terms, subject to
the effect of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and to general equity principles; (c) the
New Warburg Fund Shares to be issued to the Existing Warburg Fund's
shareholders as provided by this Agreement are duly authorized and upon
such delivery will be validly issued and outstanding and are fully paid
and non-assessable with no personal liability attaching to ownership
thereof, and no shareholder of the
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New Warburg Fund has any preemptive rights to subscription or purchase
in respect thereof; (d) the execution and delivery of this Agreement did
not, and the consummation of the transactions contemplated hereby will
not, result in a violation of the New Warburg Fund's Charter or By-Laws
or in a material violation of any provision of any agreement (known to
such counsel) to which the New Warburg Fund is a party or by which it or
its property is bound or, to the knowledge of such counsel, result in
the acceleration of any obligation or the imposition of any penalty,
under any agreement, judgment, or decree to which the New Warburg Fund
is a party or by which it or its property is bound; (e) to the knowledge
of such counsel, no consent, approval, authorization or order of any
court or governmental authority of the United States or state of
Maryland is required for the consummation by the New Warburg Fund of the
actions contemplated herein, except such as have been obtained under the
1933 Act, the 1934 Act and the 1940 Act, and such as may be required
under state securities laws; (f) only insofar as they relate to the New
Warburg Fund, the descriptions in the Proxy Statement of statutes, legal
and governmental proceedings, investigations, orders, decrees or
judgments of any court or governmental body in the United States and
contracts and other documents, if any, are accurate and fairly present
the information required to be shown; (g) such counsel does not know of
any legal, administrative or governmental proceedings, investigation,
order, decree or judgment of any court or governmental body, only
insofar as they relate to the New Warburg Fund or its assets or
properties, pending, threatened or otherwise existing on or before the
effective date of the Registration Statement or the Closing Date, which
are required to be described in the Registration Statement or to be
filed as exhibits to the Registration Statement which are not described
and filed as required; (h) the New Warburg Fund is registered as an
investment company under the 1940 Act and its registration with the
Commission as an investment company under the 1940 Act is in full force
and effect; (i) the Proxy Statement and the New Warburg Fund
Registration Statement (except as to financial and statistical data
contained therein, as to which no opinion need be given) comply as to
form in all material respects with the requirements of the 1933 Act, the
1934 Act and the 1940 Act and the rules and regulations thereunder; and
(j) the New Warburg Registration Statement is effective under the 1933
Act and the 1940 Act and no stop-order suspending its effectiveness or
order pursuant to section 8(e) of the 1940 Act has been issued.
In addition, such counsel also shall state that they have participated in
conferences with officers and other representatives of the New Warburg Fund at
which the contents of the Proxy Statement, the New Warburg Fund Registration
Statement and related matters were discussed and, although they are not passing
upon and do not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Proxy Statement and the New Warburg
Fund Registration Statement (except to the extent indicated in paragraph (f) of
their above opinion), on the basis of the foregoing (relying as to materiality
to a large extent upon the opinions of officers and other representatives of the
New Warburg Fund), they do not believe that the Proxy Statement and the New
Warburg Fund Registration Statement as of their respective dates, as of the date
of the Existing Warburg Fund shareholders' meeting, and as of the Closing Date,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein regarding the New Warburg Fund or necessary
to make the statements therein regarding the New Warburg Fund, in the light of
the circumstances under which they were made, not misleading.
Such opinion may state that such counsel does not express any opinion or
belief as to the financial statements or other financial data or as to the
information relating to the Existing Warburg Fund, contained in the Proxy
Statement, Registration Statement or New Warburg Fund Registration Statement,
and that such opinion is solely for the benefit of the RBB Fund, its Directors
and its officers. Such counsel may rely as to matters governed by the laws of
the state of Maryland on an opinion of Maryland counsel and/or certificates of
officers or directors of each New Warburg Fund. Such opinion also shall include
such other matters incident to the transaction contemplated hereby, as the
Existing Warburg Fund may reasonably request.
In this paragraph 6.4, references to the Proxy Statement include and relate
only to the text of such Proxy Statement and not, except as specifically stated
above, to any exhibits or attachments thereto or to any documents incorporated
by reference therein.
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7. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE NEW WARBURG FUND
The obligations of the New Warburg Fund to complete the transactions
provided for herein shall be subject, at its election, to the performance by the
Existing Warburg Fund of all the obligations to be performed by it hereunder on
or before the Closing Date and, in addition thereto, the following conditions:
7.1. All representations and warranties of the RBB Fund contained in
this Agreement shall be true and correct in all material respects as of the
date hereof and, except as they may be affected by the transactions
contemplated by this Agreement, as of the Closing Date with the same force
and effect as if made on and as of the Closing Date;
7.2. The RBB Fund shall have delivered to the New Warburg Fund a
statement of the Existing Warburg Fund's assets and liabilities, together
with a list of the Existing Warburg Fund's portfolio securities showing the
tax costs of such securities by lot and the holding periods of such
securities, as of the Closing Date, certified by the Treasurer or Assistant
Treasurer of the RBB Fund;
7.3. The RBB Fund shall have delivered to the New Warburg Fund on the
Closing Date a certificate executed in its name, and on behalf of the
Existing Warburg Fund, by its President or Vice President and its Treasurer
or Assistant Treasurer, in form and substance satisfactory to the New
Warburg Fund and dated as of the Closing Date, to the effect that the
representations and warranties of the Existing Warburg Fund made in this
Agreement are true and correct at and as of the Closing Date, except as
they may be affected by the transactions contemplated by this Agreement,
and as to such other matters as the New Warburg Fund shall reasonably
request; and
7.4. The New Warburg Fund shall have received on the Closing Date a
favorable opinion of Ballard Spahr Andrews & Ingersoll, counsel to the RBB
Fund, in a form satisfactory to the Secretary of the New Warburg Fund,
covering the following points:
That (a) the RBB Fund is a validly existing corporation and in good
standing under the laws of the State of Maryland and has the statutory
power to own all of its properties and assets and to carry on its
business as a registered investment company; (b) the Agreement has been
duly authorized, executed and delivered by the RBB Fund on behalf of the
Existing Warburg Fund and, assuming that the Prospectus, the
Registration Statement and the Proxy Statement comply with the 1933 Act,
the 1934 Act and the 1940 Act and the rules and regulations thereunder
and, assuming due authorization, execution and delivery of the Agreement
by the other parties hereto, is a valid and binding obligation of the
RBB Fund enforceable against the RBB Fund in accordance with its terms,
subject to the effect of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and to general equity principles; (c) the
execution and delivery of the Agreement did not, and the consummation of
the transactions contemplated hereby will not, result in a violation of
the RBB Fund's Charter or By-Laws or a material violation of any
provision of any agreement (known to such counsel) to which the RBB Fund
or the Existing Warburg Fund is a party or by which either of them or
their properties are bound or, to the knowledge of such counsel, result
in the acceleration of any obligation or the imposition of any penalty,
under any agreement, judgment or decree to which the RBB Fund or the
Existing Warburg Fund is a party or by which either of them or their
properties are bound, (d) to the knowledge of such counsel, no consent,
approval, authorization or order of any court or governmental authority
of the United States or state of Maryland is required for the
consummation by the RBB Fund and the Existing Warburg Fund of the
transactions contemplated herein, except such as have been obtained
under the 1933 Act, the 1934 Act and the 1940 Act, and such as may be
required under state securities laws; (e) only insofar as they relate to
the RBB Fund and the Existing Warburg Fund, the descriptions in the
Proxy Statement under the captions 'Summary -- Shareholder Voting
Rights', 'Management of the Fund', 'Information on Shareholders'
Rights', and 'Voting Information' are accurate and fairly present the
information required to be shown; (f) such counsel does not know of any
legal, administrative or governmental proceedings, investigation, order,
decree or judgment of any court or governmental body, only insofar as
they relate to the RBB Fund or the Existing Warburg Fund or their
respective assets or properties, pending,
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threatened or otherwise existing on or before the effective date of the
Registration Statement or the Closing Date, which are required to be
described in the Registration Statement or to be filed as exhibits to
the Registration Statement which are not described and filed as required
or which materially and adversely affect the Existing Warburg Fund's
business]; and (g) the RBB Fund is registered as an investment company
under the 1940 Act and its registration with the Commission as an
investment company under the 1940 Act is in full force and effect.
Such counsel also shall state that they have participated in conferences
with officers and other representatives of the RBB Fund and the Existing Warburg
Fund at which the contents of the Proxy Statement and related matters were
discussed and, although they are not passing upon and do not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Proxy Statement (except to the extent indicated in paragraph
(e) of their above opinion), on the basis of the foregoing (relying as to
materiality to a large extent upon the opinions of officers and other
representatives of the Existing Warburg Fund), they do not believe that the
Proxy Statement as of its date, as of the date of the Existing Warburg Fund's
shareholder meeting, and as of the Closing Date, contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein regarding the RBB Fund or the Existing Warburg Fund or necessary in the
light of the circumstances under which they were made, to make the statements
therein regarding the RBB Fund and the Existing Warburg Fund not misleading.
Such opinion may state that such counsel does not express any opinion or
belief as to the financial statements or other financial data, or as to the
information relating to the New Warburg Fund, contained in the Proxy Statement
or Registration Statement, and that such opinion is solely for the benefit of
the New Warburg Fund and its directors and officers. Such opinion also shall
include such other matters incident to the transaction contemplated hereby as
the New Warburg Fund may reasonably request.
In this paragraph 7.4, references to the Proxy Statement include and relate
only to the text of such Proxy Statement and not to any exhibits or attachments
thereto or to any documents incorporated by reference therein.
7.5. The New Warburg Fund shall have received from Coopers & Lybrand L.L.P.
a letter addressed to the New Warburg Fund dated as of the effective date of the
Registration Statement in form and substance satisfactory to the New Warburg
Fund, to the effect that:
(a) they are independent public accountants with respect to the RBB
Fund within the meaning of the 1933 Act and the applicable regulations
thereunder;
(b) in their opinion, the financial statements and per Share income
and capital changes of the Existing Warburg Fund included or incorporated
by reference in the Registration Statement and reported on by them comply
as to form in all material aspects with the applicable accounting
requirements of the 1933 Act and the rules and regulations thereunder;
(c) on the basis of limited procedures agreed upon by the New Warburg
Fund and the RBB Fund and described in such letter (but not an audit in
accordance with generally accepted auditing standards) with respect to the
unaudited pro forma financial statements of the Existing Warburg Fund
included in the Registration Statement and the Proxy Statement, and
inquiries of appropriate officials of the RBB Fund or the director(s)
thereof responsible for financial and accounting matters, nothing came to
their attention which caused them to believe that (i) such unaudited pro
forma financial statements do not comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act and
the rules and regulations thereunder, or (ii) such unaudited pro forma
financial statements are not fairly presented in conformity with generally
accepted accounting principles applied on a basis substantially consistent
with that of the audited financial statements; and
(d) on the basis of limited procedures agreed upon by the New Warburg
Fund and the RBB Fund and described in such letter (but not an examination
in accordance with generally accepted auditing standards), the information
relating to the Existing Warburg Fund appearing in the Registration
Statement and the Proxy Statement that is expressed in dollars or
percentages of dollars (with the exception of performance comparisons) has
been obtained from the accounting
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records of such Existing Warburg Fund or from schedules prepared by
officers of the RBB Fund having responsibility for financial and reporting
matters and such information is in agreement with such records, schedules
or computations made therefrom.
7.6. The RBB Fund shall have delivered to the New Warburg Fund, pursuant to
paragraph 4.1(f), copies of financial statements of the Existing Warburg Fund as
of and for its most recently completed fiscal year.
7.7. The New Warburg Fund shall have received from Coopers & Lybrand LLP a
letter addressed to the New Warburg Fund and dated as of the applicable Closing
Date stating that as of a date no more than three (3) business days prior to the
applicable Closing Date, Coopers & Lybrand LLP performed limited procedures in
connection with the RBB Fund's most recent unaudited financial statements and
that (a) nothing came to their attention in performing such limited procedures
or otherwise that led them to believe that there had been any changes in the
assets, liabilities, net assets, net investment income, net increase (decrease)
in net assets from operations or net increase (decrease) in net assets as
compared with amounts as of the Existing Warburg Fund's most recent audited
fiscal year end or the corresponding period in the Existing Warburg Fund's most
recent audited fiscal year, other than changes occurring in the ordinary course
of business, and (b) based on such limited procedures, there is no change in
their report on the most recent audited financial statements of such Existing
Warburg Fund.
7.8. The Board of Directors of the RBB Fund, including a majority of the
directors who are not 'interested persons' of the RBB Fund (as defined by the
1940 Act), shall have determined that this Agreement and the transactions
contemplated hereby are in the best interests of the RBB Fund and the Existing
Warburg Fund and that the interests of the shareholders in the RBB Fund and the
Existing Warburg Fund would not be diluted as a result of such transactions, and
the RBB Fund shall have delivered to the New Warburg Fund at the applicable
Closing, a certificate, executed by an officer, to the effect that the condition
described in this subparagraph has been satisfied.
8. FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF THE NEW WARBURG FUND AND THE
EXISTING WARBURG FUND
If any of the conditions set forth below do not exist on or before the
Closing Date with respect to the New Warburg Fund, the RBB Fund on behalf of the
Existing Warburg Fund shall, and if any of such conditions do not exist on or
before the Closing Date with respect to the Existing Warburg Fund, the New
Warburg Fund shall, at their respective option, not be required to consummate
the transactions contemplated by this Agreement:
8.1. The Agreement and the transactions contemplated herein shall have
been approved by the requisite vote of the holders of the outstanding
Shares of the Existing Warburg Fund in accordance with the provisions of
the RBB Fund's Charter and applicable law and certified copies of the votes
evidencing such approval shall have been delivered to the New Warburg Fund.
8.2. On the Closing Date no action, suit or other proceeding shall be
pending before any court or governmental agency in which it is sought to
restrain or prohibit, or obtain damages or other relief in connection with,
this Agreement or the transactions contemplated herein.
8.3. All consents of other parties and all other consents, orders and
permits of federal, state and local regulatory authorities (including those
of the Commission and of state blue sky and securities authorities,
including 'no-action' positions of and exemptive orders from such federal
and state authorities) deemed necessary by the New Warburg Fund or the RBB
Fund to permit consummation, in all material respects, of the transactions
contemplated hereby shall have been obtained, except where failure to
obtain any such consent, order or permit would not involve a risk of a
material adverse effect on the assets or properties of the New Warburg Fund
or the Existing Warburg Fund, provided that either party hereto may for
itself waive any of such conditions.
8.4. The Registration Statement and the New Warburg Fund Registration
Statement shall each have become effective under the 1933 Act and no stop
orders suspending the effectiveness thereof shall have been issued and, to
the best knowledge of the parties hereto, no investigation or proceeding
for that purpose shall have been instituted or be pending, threatened or
contemplated under the 1933 Act.
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8.5. The parties shall have received a favorable opinion of Willkie
Farr & Gallagher, addressed to, and in form and substance satisfactory to,
the RBB Fund, on behalf of the Existing Warburg Fund, and the New Warburg
Fund, substantially to the effect that for federal income tax purposes:
(a) The transfer of all or substantially all of the Existing
Warburg Fund's assets in exchange for the New Warburg Fund Shares and
the assumption by the New Warburg Fund of liabilities of the Existing
Warburg Fund will constitute a 'reorganization' within the meaning of
Section 368(a) of the Code and the New Warburg Fund and the Existing
Warburg Fund are each a 'party to a reorganization' within the meaning
of Section 368(b) of the Code; (b) no gain or loss will be recognized by
the New Warburg Fund upon the receipt of the assets of the Existing
Warburg Fund solely in exchange for the New Warburg Fund Shares and the
assumption by the New Warburg Fund of liabilities of the Existing
Warburg Fund; (c) no gain or loss will be recognized by the Existing
Warburg Fund upon the transfer of the Existing Warburg Fund's assets to
the New Warburg Fund in exchange for the New Warburg Fund Shares and the
assumption by the New Warburg Fund of liabilities of the Existing
Warburg Fund or upon the distribution (whether actual or constructive)
of the New Warburg Fund Shares to the Existing Warburg Fund's
shareholders in exchange for their shares of the Existing Warburg Fund;
(d) no gain or loss will be recognized by shareholders of the Existing
Warburg Fund upon the exchange of their Existing Warburg Fund shares for
the New Warburg Fund Shares and the assumption by the New Warburg Fund
of liabilities of the Existing Warburg Fund; (e) the aggregate tax basis
for the New Warburg Fund Shares received by each of the Existing Warburg
Fund's shareholders pursuant to the Reorganization will be the same as
the aggregate tax basis of the Existing Warburg Fund Shares held by such
shareholder immediately prior to the Reorganization, and the holding
period of the New Warburg Fund Shares to be received by each Existing
Warburg Fund shareholder will include the period during which the
Existing Warburg Fund Shares exchanged therefor were held by such
shareholder (provided that the Existing Warburg Fund Shares were held as
capital assets on the date of the Reorganization); and (f) the tax basis
of the Existing Warburg Fund's assets acquired by the New Warburg Fund
will be the same as the tax basis of such assets to the Existing Warburg
Fund immediately prior to the Reorganization, and the holding period of
the assets of the Existing Warburg Fund in the hands of the New Warburg
Fund will include the period during which those assets were held by the
Existing Warburg Fund.
Notwithstanding anything herein to the contrary, neither the New Warburg
Fund nor the RBB Fund may waive the conditions set forth in this paragraph 8.5.
9. BROKERAGE FEES AND EXPENSES; OTHER AGREEMENTS
9.1. The New Warburg Fund represents and warrants to the Existing Warburg
Fund, and the RBB Fund on behalf of the Existing Warburg Fund represents and
warrants to the New Warburg Fund, that there are no brokers or finders or other
entities to receive any payments in connection with the transactions provided
for herein.
9.2. Warburg, Pincus Counsellors, Inc. ('Warburg') or its affiliates agrees
to bear the expenses incurred in connection with the transactions contemplated
by this Agreement, whether or not consummated (excluding extraordinary expenses
such as litigation expenses, damages and other expenses not normally associated
with transactions of the type contemplated by this Agreement). These expenses
consist of: (i) expenses associated with preparing this Agreement, the
Registration Statement and expenses of the shareholder meetings; (ii) preparing
and filing the New Warburg Registration Statement covering the Fund Shares to be
issued in the Reorganization; (iii) registration or qualification fees and
expenses of preparing and filing such forms, if any, necessary under applicable
state securities laws to qualify the New Warburg Fund Shares to be issued in
connection with the Reorganization; (iv) postage; printing; accounting fees; and
legal fees incurred in connection with the transactions contemplated by this
Agreement; (v) solicitation costs incurred in connection with the shareholders
meeting referred to in clause (i) above and paragraph 5.2 hereof and (vi) any
other Reorganization expenses.
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9.3. (a) Warburg agrees to indemnify and hold harmless each person who at
the time of execution of this Agreement is a director or officer of the RBB Fund
(a 'Warburg Indemnified Party') from and against any and all direct and indirect
liabilities, losses, claims, damages and expenses (including, without
limitation, reasonable attorneys' fees) ('Losses') incurred by a Warburg
Indemnified Party and that arise from or relate to the operations commencing on
the first business day after the Closing Date of the New Warburg Fund. This
indemnification provision shall only cover Losses that have not been recovered
by the Warburg Indemnified Party against the New Warburg Fund after a reasonable
period of time following a written request to do so by the Warburg Indemnified
Party.
(b) Warburg's agreement to indemnify the Warburg Indemnified Parties
pursuant to this paragraph 9.3 is expressly conditioned upon Warburg's being
promptly notified of any action or claim brought against any such party after
the Warburg Indemnified Party receives notice of the action. The failure of a
Warburg Indemnified Party to notify Warburg shall not relieve Warburg from any
liability that Warburg may have otherwise than on account of this
indemnification agreement.
(c) In case any action or claim shall be brought against any Warburg
Indemnified Party and it shall timely notify Warburg of the commencement
thereof, Warburg shall be entitled to participate in, and, to the extent that it
shall wish to do so, to assume the defense thereof with counsel satisfactory to
it. If Warburg opts to assume the defense of such action, Warburg will not be
liable to the Warburg Indemnified Party for any legal or other expenses
subsequently incurred by the Warburg Indemnified Party in connection with the
defense thereof other than (1) reasonable costs of investigation or the
furnishing of documents or witnesses and (2) all reasonable fees and expenses of
separate counsel to such Warburg Indemnified Party if the Warburg Indemnified
Party shall have concluded reasonably that representation of Warburg and the
Warburg Indemnified Party by the same counsel would be inappropriate due to
actual or potential differing interests between them in the conduct of the
defense of such action.
10. ENTIRE AGREEMENT; SURVIVAL OF WARRANTIES
10.1. The New Warburg Fund and the RBB Fund, itself and on behalf of the
Existing Warburg Fund, agree that neither party has made any representation,
warranty or covenant not set forth herein and that this Agreement constitutes
the entire agreement among the parties.
10.2. The representations, warranties and covenants contained in this
Agreement or in any document delivered pursuant hereto or in connection herewith
shall survive the consummation of the transactions contemplated hereunder.
11. TERMINATION
11.1. This Agreement may be terminated at any time at or prior to the
Closing Date by: (1) mutual agreement of the RBB Fund, on behalf of the Existing
Warburg Fund, and the New Warburg Fund; (2) the RBB Fund, on behalf of the
Existing Warburg Fund, in the event the New Warburg Fund shall, or the New
Warburg Fund in the event the RBB Fund or the Existing Warburg Fund shall,
materially breach any representation, warranty or agreement contained herein to
be performed at or prior to the Closing Date; or (3) the RBB Fund, on behalf of
the Existing Warburg Fund, or the New Warburg Fund, or the New Warburg Fund in
the event a condition herein expressed to be precedent to the obligations of the
terminating party or parties has not been met and it reasonably appears that it
will not or cannot be met.
11.2. In the event of any such termination, there shall be no liability for
damages on the part of either the New Warburg Fund or the RBB Fund, or their
respective directors or officers, to the other party or parties.
12. AMENDMENTS
This Agreement may be amended, modified or supplemented in writing in such
manner as may be mutually agreed upon by the authorized officers of the New
Warburg Fund and the RBB Fund; provided, however, that following the meeting of
the Existing Warburg Fund's shareholders called by
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the RBB Fund pursuant to paragraph 5.2 of this Agreement no such amendment may
have the effect of changing the provisions for determining the number of the New
Warburg Fund Shares to be issued to the Existing Warburg Fund's Shareholders
under this Agreement to the detriment of such shareholders without their further
approval.
13. NOTICES
13.1. Any notice, report, statement or demand required or permitted by any
provisions of this Agreement shall be in writing and shall be given by prepaid
telegraph, telecopy or certified mail addressed to the RBB Fund and/or the
Existing Warburg Fund at:
Bellevue Park Corporate Center
400 Bellevue Parkway
Suite 100
Wilmington, DE 19809
Attention: Edward Roach
with a copy to:
John N. Ake, Esq.
Ballard Spahr Andrews & Ingersoll
1735 Market Street, 51st Floor
Philadelphia, PA 19101
or to the New Warburg Fund at:
466 Lexington Avenue
New York, NY 10017
Attention: Arnold M. Reichman
with a copy to:
Rose F. DiMartino, Esq.
Willkie Farr & Gallagher
153 East 53rd Street
New York, NY 10022
14. HEADINGS; COUNTERPARTS; GOVERNING LAW; ASSIGNMENT; LIMITATION OF LIABILITY
14.1. The article and paragraph headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
14.2. This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original.
14.3. This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware.
14.4. This Agreement shall bind and inure to the benefit of the parties
hereto and their respective successors and assigns, but no assignment or
transfer hereof or of any rights or obligations hereunder shall be made by any
party without the written consent of the other party. Nothing herein expressed
or implied is intended or shall be construed to confer upon or give any person,
firm or corporation, other than the parties hereto and their respective
successors and assigns, any rights or remedies under or by reason of this
Agreement.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed by its Chairman of the Board, President or Vice President and
attested to by its Secretary or Assistant Secretary.
WARBURG, PINCUS ................
FUND, INC.
By:
.................................
NAME:
TITLE:
Attest: .............................
THE RBB FUND, INC., for itself and
on behalf of the Warburg, Pincus
..................... Fund
By:
.................................
NAME:
TITLE:
Attest: .............................
Solely with respect to paragraphs 9.2
and 9.3:
WARBURG, PINCUS COUNSELLORS, INC.
By:
.................................
NAME:
TITLE:
Attest: .............................
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SCHEDULE A
<TABLE>
<CAPTION>
EXISTING WARBURG FUND NEW WARBURG FUND
- -------------------------------------------------------- --------------------------------------------------------
<S> <C>
Warburg Pincus ................. Fund, a series of the
RBB Fund.............................................. Warburg, Pincus ................. Fund, Inc.
Warburg Pincus Class.................................... Common Shares
Warburg Pincus Series 2 Class........................... Series 2 Shares
</TABLE>
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