<PAGE>
<PAGE>
As filed with the U.S. Securities and Exchange Commission
on March 1, 1996
Securities Act File No. 333-00527
Investment Company Act File No. 811-07515
U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM N-1A
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 [x]
Pre-Effective Amendment No. 1 [x]
Post-Effective Amendment No. [ ]
and/or
REGISTRATION STATEMENT UNDER THE INVESTMENT COMPANY ACT OF 1940 [x]
Amendment No. 1 [x]
(Check appropriate box or boxes)
Warburg, Pincus Growth & Income Fund, Inc.
................................................................................
(Exact Name of Registrant as Specified in Charter)
466 Lexington Avenue
New York, New York 10017-3147
....................................... ................
(Address of Principal Executive Office) (Zip Code)
Registrant's Telephone Number, including Area Code:
(212) 878-0600
Mr. Eugene P. Grace
Warburg, Pincus Growth & Income Fund, Inc.
466 Lexington Avenue
New York, New York 10017-3147
.........................................
(Name and Address of Agent for Service)
Copy to:
Rose F. DiMartino, Esq.
Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, New York 10022-4677
<PAGE>
<PAGE>
Approximate Date of Proposed Public Offering: May 6, 1996.
CALCULATION OF REGISTRATION FEE UNDER THE SECURITIES ACT OF 1933
<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum
Title of Securities Amount Being Offering Price Aggregate Offering Amount of
Being Registered Registered per Unit Price Registration Fee
- ------------------- ------------ ---------------- ------------------ ----------------
<S> <C> <C> <C> <C>
Shares of common
stock, $.001 par
value per share Indefinite* Indefinite* Indefinite* $500
</TABLE>
- --------------------
* An indefinite number of shares of common stock of the Registrant is
being registered by this Registration Statement pursuant to Rule 24f-2
under the Investment Company Act of 1940, as amended (the "1940 Act").
The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933, as amended (the "1933 Act"), or
until the Registration Statement shall become effective on such date as the
Commission, acting pursuant to said Section 8(a), may determine.
<PAGE>
<PAGE>
WARBURG, PINCUS GROWTH & INCOME FUND, INC.
FORM N-1A
CROSS REFERENCE SHEET
<TABLE>
<CAPTION>
Part A Heading for the Common Shares and
Item No. the Advisor Shares Prospectuses
- -------------------- ---------------------------------
<S> <C>
1. Cover Page.............................. Cover Page
2. Synopsis................................ The Funds' Expenses
3. Condensed Financial Information......... Financial Highlights
4. General Description of Registrant....... Cover Page; Investment Objectives and Policies; Portfolio
Investments; Risk Factors and Special Considerations; Certain
Investment Strategies; Investment Guidelines; General Information
5. Management of the Fund.................. Management of the Funds
6. Capital Stock and Other Securities...... General Information
7. Purchase of Securities Being Offered.... How to Open an Account; How to Purchase Shares; Net Asset Value
8. Redemption or Repurchase................ How to Redeem and Exchange Shares
9. Legal Proceedings....................... Not applicable
Part B Heading for the Statement of
Item No. Additional Information
- -------------------- ---------------------------------
10. Cover Page.............................. Cover Page
11. Table of Contents....................... Contents
12. General Information and History......... Management of the Fund;
Notes to Financial Statements; See Prospectuses--"General
Information"
</TABLE>
<PAGE>
<PAGE>
<TABLE>
<S> <C>
13. Investment Objectives and Policies...... Investment Objectives; Investment Policies
14. Management of the Registrant............ Management of the Fund; See Prospectuses--"Management of the Fund"
15. Control Persons and Principal Holders
of Securities........................... Management of the Fund; Miscellaneous; See Prospectuses--"General
Information"
16. Investment Advisory and Other Services.. Management of the Fund; See Prospectuses--"Management of the
Fund" and "Shareholder Servicing"
17. Brokerage Allocation.................... Investment Policies; See Prospectuses--"Portfolio Transactions
and Turnover Rate"
18. Capital Stock and Other Securities...... Management of the Fund--Organization of the Fund; See
Prospectuses--"General Information"
19. Purchase, Redemption and Pricing of
Securities Being Offered................ Additional Purchase and Redemption Information; See
Prospectuses--"How to Open an Account," "How to Purchase Shares,"
"How to Redeem and Exchange Shares" and "Net Asset Value"
20. Tax Status.............................. Additional Information Concerning Taxes; See
Prospectuses--"Dividends, Distributions and Taxes"
21. Underwriters............................ Investment Policies--Portfolio Transactions; See
Prospectuses--"Management of the Fund" and "Shareholder Servicing"
22. Calculation of Performance Data......... Determination of Performance
23. Financial Statements.................... Not applicable
2
<PAGE>
<PAGE>
Part C
Information required to be included in Part C is set
forth after the appropriate item, so numbered, in Part C to this
Registration Statement.
<PAGE>
<PAGE>
COMMON SHARE PROSPECTUS
The Registrant's Common Share Prospectus is incorporated by reference to
the Common Share Prospectus that forms part of Registrant's Registration
Statement on Form N-1A filed on January 30, 1996.
<PAGE>
<PAGE>
ADVISOR SHARE PROSPECTUS
The Registrant's Advisor Share Prospectus is incorporated by reference
to the Advisor Share Prospectus that forms part of Registrant's Registration
Statement on Form N-1A filed on January 30, 1996.
<PAGE>
<PAGE>
STATEMENT OF ADDITIONAL INFORMATION
The Registrant's Statement of Additional Information is incorporated by
reference to the Statement of Additional Information that forms part of
Registrant's Registration Statement on Form N-1A filed on January 30, 1996.
<PAGE>
<PAGE>
PART C
OTHER INFORMATION
Item 24. Financial Statements and Exhibits
Exhibits:
</TABLE>
<TABLE>
<CAPTION>
Exhibit No. Description of Exhibit
- ----------- ----------------------
<S> <C>
1 Articles of Incorporation.(1)
2 By-Laws.(1)
3 Not applicable.
4 Forms of Share Certificates.(2)
5 Form of Investment Advisory Agreement.
6 Form of Distribution Agreement.(3)
7 Not applicable.
8(a) Form of Custodian Agreement with PNC Bank, National Association.(2)
(b) Form of Custodian Agreement with State Street Bank and Trust Company.(4)
9(a) Form of Transfer Agency Agreement.(2)
(b) Form of Co-Administration Agreement with Counsellors Funds Service, Inc.(2)
(c) Form of Co-Administration Agreement with PFPC Inc.(2)
(d) Forms of Services Agreements.(2)
10(a) Opinion and Consent of Willkie Farr & Gallagher, counsel to the Fund.
(b) Opinion and Consent of Venable, Baetjer and Howard, LLP, Maryland counsel to the Fund.
11 Consent of Coopers & Lybrand L.L.P., Independent Accountants.
12 Not Applicable.
13 Form of Purchase Agreement.
</TABLE>
C-1
<PAGE>
<PAGE>
<TABLE>
<S> <C>
14 Not applicable.
15(a) Form of Distribution Plan.(5)
(b) Form of Distribution Agreement.
(c) Rule 18f-3 Plan.(6)
16 Not applicable.
17 Not applicable.
</TABLE>
- --------------
(1) Incorporated by reference to Registrant's Registration Statement on Form
N-1A, filed on January 30, 1996.
(2) Incorporated by reference; material provisions of this exhibit
substantially similar to those of the corresponding exhibit in
Pre-Effective Amendment No. 2 to the Registration Statement on Form N-1A of
Warburg, Pincus Post-Venture Capital Fund, Inc., filed on September 22,
1995 (Securities Act File No. 33-61225).
(3) Contained in Exhibit 15(b) hereto.
(4) Incorporated by reference; material provisions of this exhibit
substantially similar to those of the corresponding exhibit in
Pre-Effective Amendment No. 1 to the Registration Statement on Form N-1A of
Warburg, Pincus Trust filed on June 14, 1995 (Securities Act File No.
33-58125).
(5) Incorporated by reference; material provisions of this exhibit
substantially similar to the corresponding exhibit in Pre-Effective
Amendment No. 1 to the Registration Statement on Form N-1A of Warburg,
Pincus Japan Growth Fund, Inc., filed on December 18, 1995 (Securities Act
File No. 33-63655).
(6) Incorporated by reference; material provisions of this exhibit
substantially similar to those of the corresponding exhibit in
Post-Effective Amendment No. 13 to the Registration Statement on Form N-1A
of Warburg, Pincus International Equity Fund, Inc., filed on December 27,
1995 (Securities Act File No. 33-27031).
Item 25. Persons Controlled by or Under Common Control with Registrant
All of the outstanding shares of common stock of Registrant on
the date Registrant's Registration Statement becomes effective will be owned by
Warburg, Pincus Counsellors, Inc. ("Warburg"), a corporation formed under New
York law.
C-2
<PAGE>
<PAGE>
Item 26. Number of Holders of Securities
It is anticipated that Warburg will hold all Registrant's
shares of common stock, par value $.001 per share, on the date Registrant's
Registration Statement becomes effective.
Item 27. Indemnification
Registrant, officers and directors of Warburg, of Counsellors
Securities Inc. ("Counsellors Securities") and of Registrant are covered by
insurance policies indemnifying them for liability incurred in connection with
the operation of Registrant. Discussion of this coverage is incorporated by
reference to Item 27 of Part C of the Registration Statement on Form N-1A of
Warburg, Pincus Small Company Value Fund, Inc. (Securities Act No. 33-63653;
Investment Company Act No. 811-07375), filed on October 25, 1995.
Item 28. Business and Other Connections of Investment Adviser
Warburg is a wholly owned subsidiary of Warburg, Pincus
Counsellors G.P., acts as investment adviser to Registrant. Warburg renders
investment advice to a wide variety of individual and institutional clients. The
list required by this Item 28 of officers and directors of Warburg, together
with information as to their other business, profession, vocation or employment
of a substantial nature during the past two years, is incorporated by reference
to Schedules A and D of Form ADV filed by Warburg (SEC File No. 801-07321).
Item 29. Principal Underwriter
(a) Counsellors Securities will act as distributor for
Registrant. Counsellors Securities currently acts as distributor for The RBB
Fund, Inc.; Warburg Pincus Balanced Fund; Warburg Pincus Capital Appreciation
Fund; Warburg Pincus Cash Reserve Fund; Warburg Pincus Emerging Growth Fund;
Warburg Pincus Emerging Markets Fund; Warburg Pincus Fixed Income Fund; Warburg
Pincus Global Fixed Income Fund; Warburg Pincus Institutional Fund, Inc.;
Warburg Pincus Intermediate Maturity Government Fund; Warburg Pincus
International Equity Fund; Warburg Pincus Japan Growth Fund; Warburg Pincus
Japan OTC Fund; Warburg Pincus New York Intermediate Municipal Fund; Warburg
Pincus New York Tax Exempt Fund; Warburg Pincus Post-Venture Capital Fund;
Warburg Pincus Small Company Value Fund; Warburg Pincus Tax Free Fund and
Warburg Pincus Trust.
(b) For information relating to each director and officer of
Counsellors Securities, reference is made to Form BD (SEC File No. 15-654) filed
by Counsellors Securities under the Securities Exchange Act of 1934.
C-3
<PAGE>
<PAGE>
(c) None.
Item 30. Location of Accounts and Records
(1) Warburg, Pincus Growth & Income Fund, Inc.
466 Lexington Avenue
New York, New York 10017-3147
(Registrant's Articles of Incorporation,
By-laws and minute books)
(2) Warburg, Pincus Counsellors, Inc.
466 Lexington Avenue
New York, New York 10017-3147
(records relating to its functions as investment
adviser)
(3) Counsellors Funds Service, Inc.
466 Lexington Avenue
New York, New York 10017-3147
(records relating to its functions as
co-administrator)
(4) PFPC Inc.
400 Bellevue Parkway
Wilmington, Delaware 19809
(records relating to its functions as co-administrator)
(5) Counsellors Securities Inc.
466 Lexington Avenue
New York, New York 10017-3147
(records relating to its functions as distributor)
(6) PNC Bank, National Association
Broad & Chestnut Streets
Philadelphia, Pennsylvania 19101
(records relating to its functions as custodian)
(7) State Street Bank and Trust Company
225 Franklin Street
Boston, Massachusetts 02110
(records relating to its functions as custodian,
shareholder servicing agent, transfer agent and
dividend disbursing agent)
Item 31. Management Services
Not applicable.
C-4
<PAGE>
<PAGE>
Item 32. Undertakings
(a) Registrant hereby undertakes not to offer its shares to
the public, except in connection with the reorganization of the Warburg, Pincus
Growth & Income Fund, a series of The RBB Fund, Inc. until Registrant files a
post-effective amendment including financial statements.
(b) Registrant hereby undertakes to call a meeting of its
shareholders for the purpose of voting upon the question of removal of a
director or directors of Registrant when requested in writing to do so by the
holders of at least 10% of Registrant's outstanding shares. Registrant
undertakes further, in connection with the meeting, to comply with the
provisions of Section 16(c) of the 1940 Act relating to communications with the
shareholders of certain common-law trusts.
(c) Registrant hereby undertakes to furnish each person to
whom a prospectus is delivered with a copy of Registrant's latest annual report
to shareholders, upon request and without charge.
C-5
<PAGE>
<PAGE>
SIGNATURES
As required by the Securities Act of 1933, this Pre-Effective
Amendment No. 1 to the Registration Statement has been signed on behalf of
the registrant, in the City of New York and State of New York, on the 29th day
of February, 1996.
WARBURG, PINCUS GROWTH & INCOME FUND, INC.
By: /s/ Arnold M. Reichman
Arnold M. Reichman
President
As required by the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ John L. Furth Chairman of the February 29, 1996
John L. Furth Board of Directors
/s/ Arnold M. Reichman President and February 29, 1996
Arnold M. Reichman Director
/s/ Stephen Distler Vice President and February 29, 1996
Stephen Distler Chief Financial Officer
/s/ Howard Conroy Vice President, February 29, 1996
Howard Conroy Treasurer and Chief
Accounting Officer
/s/ Richard N. Cooper Director February 29, 1996
Richard N. Cooper
/s/ Donald J. Donahue Director February 29, 1996
Donald J. Donahue
/s/ Jack W. Fritz Director February 29, 1996
Jack W. Fritz
/s/ Thomas A. Melfe Director February 29, 1996
Thomas A. Melfe
/s/ Alexander B. Trowbridge Director February 29, 1996
Alexander B. Trowbridge
</TABLE>
<PAGE>
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Description of Exhibit
- ----------- ----------------------
<S> <C>
5 Form of Investment Advisory Agreement.
10(a) Opinion and Consent of Willkie Farr & Gallagher, counsel to the Fund.
(b) Opinion and Consent of Venable, Baetjer and Howard, LLP, Maryland counsel to the Fund.
11 Consent of Coopers & Lybrand L.L.P., Independent Accountants.
13 Form of Purchase Agreement.
15(b) Form of Distribution Agreement.
</TABLE>
<PAGE>
<PAGE>
INVESTMENT ADVISORY AGREEMENT
AGREEMENT made as of __________, 1996 between WARBURG, PINCUS
GROWTH & INCOME FUND, INC., a Maryland corporation (herein called the
"Company"), and Warburg, Pincus Counsellors, Inc. (herein called the "Investment
Advisor").
WHEREAS, the Company is registered as an open-end management
investment company under the Investment Company Act of 1940, as amended (the
"1940 Act"); and
WHEREAS, the Company desires to retain the Investment Advisor
to render certain investment advisory services to the Company, and the
Investment Advisor is willing to so render such services,
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained and intending to be legally bound hereby, it is
agreed between the parties hereto as follows:
1. Appointment. The Company hereby appoints the Investment
Advisor to act as its investment advisor for the period and on the terms set
forth in this Agreement. The Investment Advisor accepts such appointment and
agrees to render the services herein set forth, for the compensation herein
provided.
2. Delivery of Documents. The Company has furnished the
Investment Advisor with copies properly certified or authenticated of each of
the following:
(a) Resolutions of the Board of Directors of the Company
authorizing the appointment of the Investment Advisor and the execution and
delivery of this Agreement;
(b) The Prospectuses and Statement of Additional Information
relating to the Company in effect under the Securities Act of 1933, as amended,
(such prospectus and statement of additional information, as presently in effect
and as it shall from time to time be amended and supplemented, is herein called
the "Prospectus").
The Company will furnish the Investment Advisor from time to
time with copies, properly certified or authenticated, of all amendments of or
supplements to the foregoing, if any.
3. Management of the Company. Subject to the supervision of
the Board of Directors of the Company, the Investment Advisor will provide for
the overall management of the Company including (a) the provision of a
continuous investment program for the Company, including investment research and
management with respect to all securities, investments, cash and cash
equivalents in the Company, (b) the determination from time
<PAGE>
<PAGE>
to time of what securities and other investments will be purchased, retained or
sold by the Company and (c) the placement from time to time of orders for all
purchases and sales made for the Company. The Investment Advisor will provide
the services rendered by it hereunder in accordance with the Company's
investment objectives, restrictions and policies as stated in the applicable
Prospectus. The Investment Advisor further agrees that it will render to the
Company's Board of Directors such periodic and special reports regarding the
performance of its duties under this Agreement as the Board may request. The
Investment Advisor agrees to provide to the Company (or its agents and service
providers) prompt and accurate data with respect to the Company's transactions
and, where not otherwise available, the daily valuation of securities in the
Company.
4. Brokerage. The Investment Advisor may place orders either
directly with the issuer or with any broker or dealer. In placing orders with
brokers and dealers, the Investment Advisor will attempt to obtain the best
price and the most favorable execution of its orders. In placing orders, the
Investment Advisor will consider the experience and skill of the executing
firm's securities traders as well as the firm's financial responsibility and
administrative efficiency. Consistent with this obligation, the Investment
Advisor may, subject to the review of the Board of Directors, select brokers on
the basis of the research, statistical and pricing services they provide to the
Company and other clients of the Investment Advisor. Information and research
received from such brokers will be in addition to, and not in lieu of, the
services required to be performed by the Investment Advisor hereunder. A
commission paid to such brokers may be higher than that which another qualified
broker would have charged for effecting the same transaction, provided that the
Investment Advisor determines in good faith that such commission is reasonable
in terms either of the transaction or the overall responsibility of the
Investment Advisor to the Company and its other clients and that the total
commissions paid by the Company will be reasonable in relation to the benefits
to the Company over the long term. In no instance will the Company's securities
be purchased from or sold to the Company's principal underwriter, the Investment
Advisor, or any affiliated person thereof, except to the extent permitted by
exemptive order of the Securities and Exchange Commission or by applicable law.
5. Conformity with Law; Confidentiality. The Investment
Advisor further agrees that it will comply with all applicable rules and
regulations of all federal regulatory agencies having jurisdiction over the
Investment Advisor in the performance of its duties hereunder. The Investment
Advisor will treat confidentially and as proprietary information of the Company
all records and other information relating to the Company and prior, present or
potential shareholders (except clients of the Investment Advisor and its
affiliates), and will not use such records and information for any purpose other
than performance of
2
<PAGE>
<PAGE>
its responsibilities and duties hereunder, except after prior notification to
and approval in writing by the Company, which approval shall not be unreasonably
withheld and may not be withheld where the Investment Advisor may be exposed to
civil or criminal contempt proceedings for failure to comply, when requested to
divulge such information by duly constituted authorities, or when so requested
by the Company.
6. Services Not Exclusive. The investment management and
services rendered by the Investment Advisor hereunder are not to be deemed
exclusive, and the Investment Advisor shall be free to render similar services
to others so long as its services under this Agreement are not impaired thereby.
7. Books and Records. In compliance with the requirements of
Rule 31a-3 under the 1940 Act, the Investment Advisor hereby agrees that all
records which it maintains for the Company are the property of the Company and
further agrees to surrender promptly to the Company any of such records upon the
Company's request. The Investment Advisor further agrees to preserve for the
periods prescribed by Rule 31a-2 under the 1940 Act the records required to be
maintained by Rule 31a-1 under the 1940 Act.
8. Expenses. During the term of this Agreement, the Investment
Advisor will pay all expenses incurred by it in connection with its activities
under this Agreement other than the cost of securities purchased for the Company
(including brokerage commissions, if any), the cost of independent pricing
services used in valuing the Company's securities and fees and expenses of
registering and qualifying shares for distribution under state securities laws.
If the expenses borne by the Company in any fiscal year exceed
the most restrictive applicable expense limitations imposed by the securities
regulations of any state in which the shares of the Company are registered or
qualified for sale to the public, the Investment Advisor shall reimburse the
Company for any excess up to the amount of the fees payable by the Company to it
during such fiscal year pursuant to Paragraph 9 hereof in the same proportion
that its fees bear to the total fees paid by the Company for investment advisory
services; provided, however, that notwithstanding the foregoing, the Investment
Advisor shall reimburse the Company for such excess expenses regardless of the
amount of such fees payable to it during such fiscal year to the extent that the
securities regulations of any state in which the shares of the Company are
registered or qualified for sale so require.
3
<PAGE>
<PAGE>
9. Compensation.
For the services provided and the expenses assumed pursuant to
this Agreement, the Company will pay the Investment Advisor, and the Investment
Advisor will accept as full compensation therefor a fee, computed daily and
payable monthly, at the annual rate of .75% of the Company's average daily net
assets.
10. Limitation of Liability of the Investment Advisor. The
Investment Advisor shall not be liable for any error of judgment or mistake of
law or for any loss suffered by the Company in connection with the matters to
which this Agreement relates, except a loss resulting from a breach of fiduciary
duty with respect to the receipt of compensation for services or a loss
resulting from willful misfeasance, bad faith or gross negligence on the part of
the Investment Advisor in the performance of its duties or from reckless
disregard by it of its obligations and duties under this Agreement ("disabling
conduct"). The Company will indemnify the Investment Advisor against and hold it
harmless from any and all losses, claims, damages, liabilities or expenses
(including reasonable counsel fees and expenses) resulting from any claim,
demand, action or suit not resulting from disabling conduct by the Investment
Advisor. Indemnification shall be made only following: (a) a final decision on
the merits by a court or other body before whom the proceeding was brought that
the Investment Advisor was not liable by reason of disabling conduct or (b) in
the absence of such a decision, a reasonable determination, based upon a review
of the facts, that the Investment Advisor was not liable by reason of disabling
conduct by (i) the vote of a majority of a quorum of directors of the Company
who are neither "interested persons" of the Company nor parties to the
proceeding ("Disinterested Non-Party Directors") or (ii) an independent legal
counsel in a written opinion. The Investment Advisor shall be entitled to
advances from the Company for payment of the reasonable expenses incurred by it
in connection with the matter as to which it is seeking indemnification in the
manner and to the fullest extent permissible under the Maryland General
Corporation Law. The Investment Advisor shall provide to the Company a written
affirmation of its good faith belief that the standard of conduct necessary for
indemnification by the Company has been met and a written undertaking to repay
any such 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 Investment Advisor shall provide a security in
form and amount acceptable to the Company for its undertaking; (b) the Company
is insured against losses arising by reason of the advance; or (c) a majority of
a quorum of Disinterested Non-Party Directors, or independent legal counsel, in
a written opinion, shall have determined, based upon a review of facts readily
available to the Company at the time the advance is proposed to be made, that
4
<PAGE>
<PAGE>
there is reason to believe that the Investment Advisor will ultimately be found
to be entitled to indemnification.
11. Duration and Termination. This Agreement shall become
effective upon approval of this Agreement by vote of a majority of the
outstanding voting securities of the Company and, unless sooner terminated as
provided herein, shall continue until April 17, 1997. Thereafter, if not
terminated, this Agreement shall continue for successive annual periods ending
on April 17, provided such continuance is specifically approved at least
annually (a) by the vote of a majority of those members of the Board of
Directors of the Company who are not parties to this Agreement or interested
persons of any such party, cast in person at a meeting called for the purpose of
voting on such approval, and (b) by the Board of Directors of the Company or by
vote of a majority of the outstanding voting securities of the Company;
provided, however, that this Agreement may be terminated by the Company at any
time, without the payment of any penalty, by the Board of Directors of the
Company or by vote of a majority of the outstanding voting securities of the
Company, on 60 days' prior written notice to the Investment Advisor, or by the
Investment Advisor at any time, without payment of any penalty, on 90 days'
prior written notice to the Company. This Agreement will immediately terminate
in the event of its assignment. (As used in this Agreement, the terms "majority
of the outstanding voting securities," "interested person" and "assignment"
shall have the same meaning as such terms have in the 1940 Act.)
12. Amendment of this Agreement. No provision of this
Agreement may be changed, discharged or terminated orally, but may be changed,
discharged or terminated by an instrument in writing signed by the party against
which enforcement of the change, discharge or termination is sought, and no
amendment of this Agreement affecting the Company shall be effective until
approved by vote of the holders of a majority of the outstanding voting
securities of the Company.
13. Miscellaneous. The captions in this Agreement are included
for convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. If any
provision of this Agreement shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of this Agreement shall not be
affected thereby.
14. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of New York
without giving effect to the conflicts of laws principles thereof.
5
<PAGE>
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be executed by their officers designated below as of the day and
year first above written.
WARBURG, PINCUS GROWTH & INCOME FUND, INC.
By: _______________________________________
Name:
Title:
WARBURG, PINCUS COUNSELLORS, INC.
By: _______________________________________
Name:
Title:
6
<PAGE>
<PAGE>1
[LETTERHEAD OF WILLKIE FARR & GALLAGHER]
March 1, 1996
Warburg, Pincus Growth & Income Fund, Inc.
466 Lexington Avenue
New York, New York 10017-3147
Ladies and Gentlemen:
We have acted as counsel to Warburg, Pincus Growth & Income Fund, Inc. (the
"Fund"), a corporation organized under the laws of the State of Maryland, in
connection with the preparation of a registration statement on Form N-1A
covering the offer and sale of an indefinite number of shares of Common Stock of
the Fund, par value $.001 per share (the "Common Stock").
We have examined copies of the Charter and By-laws of the Fund, the Fund's
prospectuses and statement of additional information (the "Statement of
Additional Information") included in its Registration Statement on Form N-1A,
Securities Act File No. 333-00527 and Investment Company Act File No. 811-07515
(the "Registration Statement"), all resolutions adopted by the Fund's Board of
Directors (the "Board") at its initial meeting held on February 8, 1996,
consents of the Board and other records, documents and papers that we have
deemed necessary for the purpose of this opinion. We have also examined such
other statutes and authorities as we have deemed necessary to form a basis for
the opinion hereinafter expressed.
In our examination of material, we have assumed the genuineness of all
signatures and the conformity to original documents of all copies submitted to
us. As to various questions of fact material to our opinion, we have relied upon
statements and certificates of officers and representatives of the Fund and
others.
Based upon the foregoing, we are of the opinion that:
1. The Fund is duly organized and validly existing as a corporation in
good standing under the laws of the State of Maryland.
<PAGE>
<PAGE>2
Warburg, Pincus Growth & Income Fund, Inc.
March 1, 1996
Page 2
2. The Common Stock to be offered for sale pursuant to the Registration
Statement is, to the extent of the number of shares of each class of
the Fund authorized to be issued by the Fund in its Charter, duly
authorized and, when sold, issued and paid for as contemplated by the
Registration Statement and authorized by the Board, will have been
validly and legally issued and will be fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement, to the reference to us in the Statement of Additional
Information and to the filing of this opinion as an exhibit to any application
made by or on behalf of the Fund or any distributor or dealer in connection with
the registration or qualification of the Fund or the Common Stock under the
securities laws of any state or other jurisdiction.
We are members of the Bar of the State of New York only and do not opine as to
the laws of any jurisdiction other than the laws of the State of New York and
the laws of the United States, and the opinions set forth above are,
accordingly, limited to the laws of those jurisdictions. As to matters involving
the application of the laws of the State of Maryland, we have relied on the
opinion of Messrs. Venable, Baetjer and Howard, LLP.
Very truly yours,
/s/ Willkie Farr & Gallagher
<PAGE>
<PAGE>
March 1, 1996
Willkie Farr & Gallagher
153 East 53rd Street
New York, New York 10022-4669
Re: Warburg, Pincus Growth & Income Fund, Inc.
Ladies and Gentlemen:
We have acted as special Maryland counsel to Warburg, Pincus Growth &
Income Fund, Inc., a Maryland corporation (the "Acquiring Fund"), in connection
with the proposed acquisition by the Acquiring Fund of all or substantially
all the assets and liabilities of Warburg Pincus Growth & Income Fund (the
"Acquired Fund"), a portfolio of The RBB Fund, Inc. (The "RBB Fund"), a
Maryland corporation, in exchange for Common and Advisor shares of the
Acquiring Fund (together, the "Shares"), pursuant to a Plan of Reorganization
to be executed by the Acquiring Fund and by the RBB Fund on behalf of the
Acquired Fund.
As special Maryland counsel for the Acquiring Fund, we are familiar
with its Charter and By-laws. We have examined Pre-Effective Amendment No. 1
to the Acquiring Fund's Registration Statement on Form N-1A, Securities Act
File No. 333-00527; Investment Company Act File No. 811-07515, including the
prospectuses and statement of additional information contained therein (the
"Registration Statement"), substantially in the form in which it is to become
effective. We have further examined and relied upon a certificate of the
Maryland State Department of Assessments and Taxation to the effect that the
Acquiring Fund is duly incorporated and existing under the laws of the State
of Maryland and is in good standing and duly authorized to transact business
in the State of Maryland.
We have also examined and relied upon such corporate
records of the Acquiring Fund and other documents and certificates with
respect to factual matters as we have deemed necessary to render the opinion
expressed herein. We have assumed, without independent verification, the
genuineness of all signatures, the authenticity of all documents submitted to
us as originals and the conformity with originals of all documents submitted
to us as copies.
Based on such examination, we are of the opinion and so advise you
that:
1. The Acquiring Fund is duly organized and validly existing as a
corporation in good standing under the laws of the State of
Maryland.
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2. The Shares of the Acquiring Fund to be offered for sale pursuant
to the Registration Statement are, to the extent of the respective
number of Shares of each class of the Acquiring Fund authorized
to be issued by the Acquiring Fund in its Charter, duly
authorized and, when sold, issued and paid for as contemplated
by the Registration Statement and authorized by the Board of
Directors of the Acquiring Fund, will have been validly and
legally issued and will be fully paid and nonassessable under the
laws of the State of Maryland.
This letter expresses our opinion with respect to the Maryland
General Corporation Law governing matters such as due organization
and the authorization and issuance of stock. It does not extend to the
securities or "blue sky" laws of Maryland, to federal securities laws or to
other laws.
You may rely on our foregoing opinion in rendering your opinion to
the Acquiring Fund that is to be filed as an exhibit to the Registration
Statement. We consent to the filing of this opinion as an exhibit to the
Registration Statement. We do not thereby admit that we are "experts" as that
term is used in the Securities Act of 1933 and the regulations thereunder.
Very truly yours,
/s/ Venable, Baetjer & Howard, LLP
<PAGE>
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent in this Pre-Effective Amendment No. 1 to the Registration Statement
under the Securities Act of 1933 on Form N-1A (File No. 333-00527) of the
Warburg, Pincus Growth & Income Fund, Inc. to the reference to our Firm under
the caption "Accountants and Counsel."
COOPERS & LYBRAND L.L.P.
2400 Eleven Penn Center
Philadelphia, Pennsylvania
March 1, 1996
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PURCHASE AGREEMENT
Warburg, Pincus Growth & Income Fund, Inc. (the "Fund"), a
corporation organized under the laws of the State of Maryland, and Warburg,
Pincus Counsellors, Inc. ("Warburg") hereby agree as follows:
1. The Fund offers Warburg and Warburg hereby purchases two
shares of common stock of the Fund, including one share of common stock and one
share designated an "Advisor Share," each having a par value $.001 per share
(the "Shares") at a price of $10.00 per share (the "Initial Shares"). Warburg
hereby acknowledges receipt of certificates representing the Initial Shares and
the Fund hereby acknowledges receipt from Warburg of $20.00 in full payment for
the Initial Shares.
2. Warburg agrees that if any holder of the Initial Shares
redeems a Share before five years after the date upon which the Fund commences
its investment activities, the redemption proceeds will be reduced by the amount
of unamortized organizational expenses. The parties hereby acknowledge that any
Shares acquired by Warburg other than the Initial Shares have not been acquired
to fulfill the requirements of Section 14 of the Investment Company Act of 1940,
as amended, and, if redeemed, their redemption proceeds will not be subject to
reduction based on the unamortized organizational expenses of the Fund.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day of , 1996.
WARBURG, PINCUS GROWTH & INCOME
FUND, INC.
By: _________________________________________
Name:
Title:
______________________________
ATTEST:
WARBURG, PINCUS COUNSELLORS, INC.
By: ________________________________________
Name:
Title:
______________________________
ATTEST:
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DISTRIBUTION AGREEMENT
March __, 1996
Counsellors Securities Inc.
466 Lexington Avenue
New York, New York 10017-3147
Ladies and Gentlemen:
This is to confirm that, in consideration of the agreements
hereinafter contained, the undersigned, Warburg, Pincus Growth & Income Fund,
Inc. (the "Fund"), an open-end, non-diversified, management investment company
organized as a corporation under the laws of the State of Maryland, has agreed
that Counsellors Securities Inc. ("Counsellors Securities") shall be, for the
period of this Agreement, the distributor of shares of common stock of the Fund,
par value $.001 per share other than those designated Common Stock - Series 1.
The common stock not designated Common Stock - Series 1 or the Advisor Shares
shall be referred to as the "Common Shares", and the common stock designated the
Advisor Shares shall be referred to as the "Advisor Shares."
1. Services as Distributor
1.1 Counsellors Securities will act as agent for the
distribution of the Common Shares and Advisor Shares covered by the Fund's
registration statement on Form N-1A, under the Securities Act of 1933, as
amended (the "1933 Act"), and the Investment Company Act of 1940, as amended
(the "1940 Act") (the registration statement, together with the prospectuses
(the "prospectus") and statement of additional information (the "statement of
additional information") included as part of the registration statement, any
amendments to the registration statement, and any supplements to, or material
incorporated by reference into the prospectus or statement of additional
information, being referred to collectively in this Agreement as the
"registration statement").
1.2 Counsellors Securities agrees to use appropriate efforts
to solicit orders for the sale of the Common Shares and Advisor Shares at such
prices and on the terms and conditions set forth in the registration statement
and will undertake such advertising and promotion as it believes is reasonable
in connection with such solicitation.
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1.3 All activities by Counsellors Securities as distributor of
the Common Shares and Advisor Shares shall comply with all applicable laws,
rules and regulations, including, without limitation, all rules and regulations
made or adopted by the Securities and Exchange Commission (the "SEC") or by any
securities association registered under the Securities Exchange Act of 1934.
Counsellors Securities shall not be deemed to have violated any state securities
laws if it has acted in good faith and in accordance with any Blue Sky Report
(as defined below) provided to it by the Fund from time to time.
1.4 Counsellors Securities agrees to (a) provide one or more
persons during normal business hours to respond to telephone questions
concerning the Fund and its performance, (b) provide prospectuses of other funds
advised by Warburg, Pincus Counsellors, Inc. to shareholders considering
exercising the exchange privilege and (c) perform such other services as are
described in the registration statement and in the Distribution Plan (with
respect to Advisor Shares, the "Distribution Plan"), adopted by the Fund
pursuant to Rule 12b-1 under the 1940 Act ("Rule 12b-1") to be performed by
Counsellors Securities including, without limitation, distributing and receiving
subscription order forms and receiving written redemption requests.
1.5 Pursuant to and in accordance with the Distribution Plan,
Counsellors Securities may enter into agreements in a form approved by the
Fund's governing board with institutional shareholders of record,
broker-dealers, financial institutions, depository institutions, retirement
plans and other financial intermediaries ("Institutions") who provide certain
services in connection with Advisor Shares. The Fund will pay Institutions
pursuant to the Distribution Plan either directly out of its own assets or
through Counsellors Securities.
1.6 Counsellors Securities acknowledges that, whenever in the
judgment of the Fund's officers such action is warranted for any reason,
including, without limitation, market, economic or political conditions, those
officers may decline to accept any orders for, or make any sales of, the Common
Shares Advisor Shares until such time as those officers deem it advisable to
accept such orders and to make such sales.
1.7 Except as set forth in Section 1.5, Counsellors Securities
will act only on its own behalf as principal should it choose to enter into
selling agreements with selected dealers or others.
1.8 Counsellors Securities will transmit any orders received
by it for purchase or redemption of the Common Shares and Advisor Shares to
State Street Bank and Trust Company ("State Street"), the Fund's transfer and
dividend disbursing agent, or its successor of which Counsellors Securities is
notified in
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writing. The Fund will promptly advise Counsellors Securities of the
determination to cease accepting orders or selling Common Shares or Advisor
Shares or to recommence accepting orders or selling Common Shares or Advisor
Shares. The Fund (or its agent) will confirm orders for Common Shares and
Advisor Shares placed through Counsellors Securities upon their receipt, or in
accordance with any exemptive order of the SEC, and will make appropriate book
entries pursuant to the instructions of Counsellors Securities. Counsellors
Securities agrees to cause payment for Common Shares and Advisor Shares and
instructions as to book entries to be delivered promptly to the Fund (or its
agent).
1.9 The outstanding Common Shares and Advisor Shares are
subject to redemption as set forth in the prospectus. The price to be paid to
redeem the Common Shares and Advisor Shares will be determined as set forth in
the prospectus.
1.10 Counsellors Securities will prepare and deliver reports
to the Treasurer of the Fund on a regular, at least quarterly, basis, showing
the distribution expenses incurred pursuant to this Agreement and the
Distribution Plan adopted by the Fund pursuant to Rule 12b-1 and the purposes
therefor, as well as any supplemental reports as the Directors from time to time
may reasonably request.
1.11 Counsellors Securities shall furnish, at its expense and
without cost to the Fund, the services of personnel to the extent that such
services are required to carry out its obligations under this Agreement.
Counsellors Securities shall also bear the expenses of any promotional or sales
literature used by it or furnished by it in connection with the public offering
of the Fund's shares, the expenses of printing (exclusive of typesetting) and
distributing prospectuses and statements of additional information to
prospective shareholders, the expense of advertising in connection with the
public offering of the Fund's shares and all legal expenses in connection with
the foregoing. The Fund assumes and shall pay or cause to be paid all other
expenses of the Fund, including the fees provided in paragraph 1.5.
2. Duties of the Fund
2.1 The Fund agrees at its own expense to execute any and all
documents, to furnish any and all information and to take any other actions that
may be reasonably necessary in connection with the qualification of the Common
Shares and Advisor Shares for sale in those states that Counsellors Securities
may designate. The Fund shall not, however, be required to qualify as a foreign
business entity in any jurisdiction nor effect any modification of its policies
or practices in order to qualify in any jurisdiction without the approval of the
Fund's Directors. The Fund's officers, subject to the direction of the Board and
with the advice of Counsellors Securities, shall determine
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whether it is desirable to qualify or continue to offer shares in any
jurisdiction. Counsellors Securities shall have no obligation to assist in the
qualification of shares in any jurisdiction or in the maintenance of any
qualification, other than an obligation to serve as registered agent to the Fund
and execute required filings.
2.2 The Fund shall furnish from time to time, for use in
connection with the sale of the Common Shares and Advisor Shares, such
informational reports with respect to the Fund and the Common Shares and Advisor
Shares as Counsellors Securities may reasonably request, all of which shall be
signed by one or more of the Fund's duly authorized officers; and the Fund
warrants that the statements contained in any such reports, when so signed by
one or more of the Fund's officers, shall be true and correct. The Fund shall
also furnish Counsellors Securities upon request with: (a) annual audits of the
Fund's books and accounts made by independent public accountants regularly
retained by the Fund, (b) semiannual unaudited financial statements pertaining
to the Fund, (c) quarterly earnings statements prepared by the Fund, (d) a
monthly itemized list of the securities held by the Fund, (e) monthly balance
sheets as soon as practicable after the end of each month, (f) a survey
indicating the states and jurisdictions in which each class of Fund shares is
qualified for sale or exempt from the requirements of the securities laws of
such state or jurisdiction and the amounts of shares that may be sold in such
states and jurisdictions (the "Blue Sky Report"), and (g) from time to time such
additional information regarding the Fund's financial condition as Counsellors
Securities may reasonably request.
3. Representations and Warranties
The Fund represents to Counsellors Securities that all
registration statements, prospectuses and statements of additional information
filed by the Fund with the SEC under the 1933 Act and the 1940 Act with respect
to the Common Shares and/or Advisor Shares have been carefully prepared in
conformity with the requirements of the 1933 Act, the 1940 Act and the rules and
regulations of the SEC thereunder. As used in this Agreement the terms
"registration statement", "prospectus" and "statement of additional information"
shall mean any registration statement, prospectus and statement of additional
information filed by the Fund with respect to the Common Shares and/or Advisor
Shares with the SEC and any amendments and supplements thereto which at any time
shall have been filed with the SEC. The Fund represents and warrants to
Counsellors Securities that any registration statement with respect to the
Common Shares and/or Advisor Shares, or prospectus and statement of additional
information contained therein, when such registration statement becomes
effective, will include all statements required to be contained therein in
conformity with the 1933 Act, the 1940 Act and the rules and regulations of the
SEC; that all statements of fact contained in any registration statement with
respect to the
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<PAGE>
Common Shares and/or Advisor Shares, prospectus or statement of additional
information will be true and correct when such registration statement becomes
effective; and that neither any registration statement nor any prospectus or
statement of additional information with respect to the Common Shares and/or
Advisor Shares when such registration statement becomes effective will include
an 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 not misleading
to a purchaser of the Common Shares and/or Advisor Shares. Counsellors
Securities may, but shall not be obligated to, propose from time to time such
amendment or amendments to any registration statement and such supplement or
supplements to any prospectus or statement of additional information as, in the
light of future developments, may, in the opinion of Counsellors Securities'
counsel, be necessary or advisable. If the Fund shall not propose such amendment
or amendments and/or supplement or supplements within fifteen (15) days after
receipt by the Fund of a written request from Counsellors Securities to do so,
Counsellors Securities may, at its option, terminate this Agreement. The Fund
shall not file any amendment to any registration statement or supplement to any
prospectus or statement of additional information without giving Counsellors
Securities reasonable notice thereof in advance; provided, however, that nothing
contained in this Agreement shall in any way limit the Fund's right to file at
any time such amendments to any registration statement and/or supplements to any
prospectus or statement of additional information with respect to the Common
Shares and/or Advisor Shares, of whatever character, as the Fund may deem
advisable, such right being in all respects absolute and unconditional.
4. Indemnification
4.1 The Fund agrees to indemnify, defend and hold Counsellors
Securities, its several officers and directors, and any person who controls
Counsellors Securities within the meaning of Section 15 of the 1933 Act, free
and harmless from and against any and all claims, demands, liabilities and
expenses (including the cost of investigating or defending such claims, demands
or liabilities and any counsel fees incurred in connection therewith) which
Counsellors Securities, its officers and directors, or any such controlling
person, may incur under the 1933 Act, the 1940 Act or common law or otherwise,
arising out of or based upon any untrue statement or alleged untrue statement of
a material fact contained in any registration statement, any prospectus or any
statement of additional information with respect to the Common Shares and/or
Advisor Shares, or arising out of or based upon any omission or alleged omission
to state a material fact required to be stated in any registration statement,
any prospectus or any statement of additional information with respect to the
Common Shares and/or Advisor Shares, or necessary to make the statements in any
of them not misleading; provided, however, that the Fund's agreement to
indemnify Counsellors Securities, its officers or directors, and
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any such controlling person shall not be deemed to cover any claims, demands,
liabilities or expenses arising out of or based upon any statements or
representations made by Counsellors Securities or its representatives or agents
other than such statements and representations as are contained in any
registration statement, prospectus or statement of additional information with
respect to the Common Shares and/or Advisor Shares and in such financial and
other statements as are furnished to Counsellors Securities pursuant to
paragraph 2.2 hereof; and further provided that the Fund's agreement to
indemnify Counsellors Securities and the Fund's representations and warranties
hereinbefore set forth in paragraph 3 shall not be deemed to cover any liability
to the Fund or its shareholders to which Counsellors Securities would otherwise
be subject by reason of willful misfeasance, bad faith or gross negligence in
the performance of its duties, or by reason of Counsellors Securities' reckless
disregard of its obligations and duties under this Agreement ("disabling
conduct") or from error of judgment, mistake of law or any negligent act or
omission by Counsellors Securities.
Indemnification shall be made only following: (i) a final
decision on the merits by a court or other body before whom the proceeding was
brought that Counsellors Securities was not liable by reason of disabling
conduct, error of judgment, mistake of law or any negligent act or omission or
(ii) in the absence of such a decision, a reasonable determination, based upon a
review of the facts, that Counsellors Securities was not liable by reason of
disabling conduct, error of judgment, mistake of law or any negligent act or
omission by (a) the vote of a majority of a quorum of directors of the Fund who
are neither "interested persons" of the Fund nor parties to the proceeding
("disinterested non-party directors") or (b) an independent legal counsel in a
written opinion. Counsellors Securities, its officers, directors and control
persons shall be entitled to advances from the Fund for payment of the
reasonable expenses incurred by it or them in connection with the matters as to
which it or they are seeking indemnification in the manner and to the fullest
extent permissible under the Maryland General Corporation law. Counsellors
Securities shall provide to the Fund a written affirmation of its good faith
belief that the standard of conduct necessary for indemnification by the Fund
has been met and a written undertaking to repay any such 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)
Counsellors Securities shall provide a security in form and amount acceptable to
the Fund for its undertaking; (b) the Fund is insured against losses arising by
reason of the advance; or (c) a majority of a quorum of disinterested non-party
directors, or independent legal counsel selected by the disinterested directors,
in a written opinion, shall have determined, based on a review of facts readily
available to the Fund at the time the advance is proposed to be
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made, that there is reason to believe that Counsellors Securities will
ultimately be found to be entitled to indemnification.
The Fund's agreement to indemnify Counsellors Securities, its
officers and directors, and any such controlling person, as aforesaid, is
expressly conditioned upon the Fund's being notified of any action brought
against Counsellors Securities, its officers or directors, or any such
controlling person, such notification to be given by letter or by telegram
addressed to the Fund at its principal office in New York, New York and sent to
the Fund by the person against whom such action is brought, within ten (10) days
after the summons or other first legal process shall have been served. The
failure to so notify the Fund of any such action shall not relieve the Fund from
any liability that the Fund may have to the person against whom such action is
brought by reason of any such untrue or alleged untrue statement or omission or
alleged omission otherwise than on account of the Fund's indemnity agreement
contained in this paragraph 4.1. The Fund's indemnification agreement contained
in this paragraph 4.1 and the Fund's representations and warranties in this
Agreement shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of Counsellors Securities, its officers and
directors, or any controlling person, and shall survive the delivery of any of
the Fund's shares. This agreement of indemnity will inure exclusively to
Counsellors Securities' benefit, to the benefit of its several officers and
directors, and their respective estates, and to the benefit of the controlling
persons and their successors. The Fund agrees to notify Counsellors Securities
promptly of the commencement of any litigation or proceedings against the Fund
or any of its officers or directors in connection with the issuance and sale of
any of the Common Shares and/or Advisor Shares.
4.2 Counsellors Securities agrees to indemnify, defend and
hold the Fund, its several officers and directors, and any person who controls
the Fund within the meaning of Section 15 of the 1933 Act, free and harmless
from and against any and all claims, demands, liabilities and expenses
(including the costs of investigating or defending such claims, demands or
liabilities and any counsel fees incurred in connection therewith) that the
Fund, its officers or directors or any such controlling person may incur under
the 1933 Act, the 1940 Act or common law or otherwise, but only to the extent
that such liability or expense incurred by the Fund, its officers or directors
or such controlling person resulting from such claims or demands shall arise out
of or be based upon (a) any unauthorized sales literature, advertisements,
information, statements or representations or wrongful sales activities of
Counsellors Securities or its registered representatives or (b) any untrue or
alleged untrue statement of a material fact contained in information furnished
in writing by Counsellors Securities to the Fund specifically for use in the
registration statement and used in the answers to any of the items of the
registration statement
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or in the corresponding statements made in the prospectus or statement of
additional information, or shall arise out of or be based upon any omission or
alleged omission to state a material fact in connection with such information
furnished in writing by Counsellors Securities to the Fund and required to be
stated in such answers or necessary to make such information not misleading.
Notwithstanding anything contained herein to the contrary, Counsellors
Securities shall not be responsible to the Fund for and shall not indemnify the
Fund, its officers, directors or controlling persons from and against any
claims, demands, liabilities and expenses arising solely as a result of actions
taken or omitted to be taken in good faith reliance on, and in conformity with,
the Blue Sky Report.
Counsellors Securities shall also indemnify and hold harmless
the Fund, its officers and directors and persons who control the Fund within the
meaning of Section 15 of the 1933 Act for any liability to the Fund or to the
holders of shares by reason of Counsellors Securities' disabling conduct. The
Fund, its officers, directors and control persons shall be entitled to advances
from Counsellors Securities for payment of the reasonable expenses incurred by
it or them in connection with the matters as to which it or they are seeking
indemnification in the manner and to the fullest extent permissible under
Maryland General Corporation law. The Fund shall provide to Counsellors
Securities a written confirmation of its good faith belief that the standard of
conduct necessary for indemnification by Counsellors Securities has been met and
a written undertaking to repay any such advance if it should be determined that
the standard of conduct has not been met. Counsellors Securities' agreement to
indemnify the Fund, its officers and directors, and any such controlling person,
as aforesaid, is expressly conditioned upon Counsellors Securities' being
notified of any action brought against the Fund, its officers or directors, or
any such controlling person, such notification to be given by letter or telegram
addressed to Counsellors Securities at its principal office in New York, New
York and sent to Counsellors Securities by the person against whom such action
is brought, within ten (10) days after the summons or other first legal process
shall have been served. The failure to so notify Counsellors Securities of any
such action shall not relieve Counsellors Securities from any liability that
Counsellors Securities may have to the Fund, its officers or directors, or to
such controlling person by reason of any such untrue or alleged untrue statement
or omission or alleged omission otherwise than on account of Counsellors
Securities' indemnity agreement contained in this paragraph 4.2. Counsellors
Securities agrees to notify the Fund promptly of the commencement of any
litigation or proceedings against Counsellors Securities or any of its officers
or directors in connection with the issuance and sale of any of the Common
Shares and/or Advisor Shares.
4.3 In case any action shall be brought against any
indemnified party under paragraph 4.1 or 4.2, and it shall timely
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notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate in, and, to the extent that it shall wish
to do so, to assume the defense thereof with counsel reasonably satisfactory to
such indemnified party. If the indemnifying party opts to assume the defense of
such action, the indemnifying party will not be liable to the indemnified party
for any legal or other expenses subsequently incurred by the indemnified party
in connection with the defense thereof other than (a) reasonable costs of
investigation or the furnishing of documents or witnesses and (b) all reasonable
fees and expenses of separate counsel to such indemnified party if (i) the
indemnifying party and the indemnified party shall have agreed to the retention
of such counsel or (ii) the indemnified party shall have concluded reasonably
that representation of the indemnifying party and the 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. If the
indemnifying party does not elect to assume the defense of any such action or if
the indemnified party does not reasonably approve of counsel chosen by the
indemnifying party or if separate counsel is authorized pursuant to the
preceding sentence, the indemnifying party will reimburse all indemnified
parties involved in such action for the fees and expenses of only one counsel or
firm retained by such indemnified persons.
In the event that any claim for indemnification is made and,
based on the advice of counsel, there is a reasonable basis for believing that
such indemnification is against public policy as expressed in the 1933 Act, the
1934 Act and/or the 1940 Act, the indemnifying party, at its expense to the
extent permitted by law, will submit to a court of appropriate jurisdiction the
question of whether or not indemnification by it is against public policy as
expressed in the 1933 Act, the 1934 Act and/or the 1940 Act, and the
indemnifying party and the indemnified party will be governed by the final
adjudication of such question.
The indemnification provisions contained in this Agreement and
the representations and warranties in this Agreement shall remain operative and
in full force and effect regardless of any investigation made by or on behalf of
the indemnified party and shall survive the sale of any of the shares made
pursuant to this Agreement. This agreement of indemnity will inure exclusively
to the benefit of the indemnified parties, and to the extent permitted by the
1940 Act or any other applicable law consistent with the 1940 Act to the benefit
of any of their successors and assigns. The indemnified party agrees promptly to
notify the indemnifying party of the commencement of any litigation or
proceeding against the former.
5. Effectiveness of Registration
None of the Common Shares or Advisor Shares shall be offered
by either Counsellors Securities or the Fund under any of
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the provisions of this Agreement and no orders for the purchase or sale of the
Common Shares or Advisor Shares shall be accepted by the Fund if and so long as
the effectiveness of the registration statement shall be suspended under any of
the provisions of the 1933 Act or if and so long as the prospectus is not on
file with the SEC; provided, however, that nothing contained in this paragraph 5
shall in any way restrict or have an application to or bearing upon the Fund's
obligation to repurchase its shares from any shareholder in accordance with the
provisions of the prospectus or statement of additional information.
6. Notice to Counsellors Securities
The Fund agrees to advise Counsellors Securities immediately
in writing:
(a) of any request by the SEC for amendments to the
registration statement, prospectus or statement of additional
information then in effect with respect to the Common Shares and/or
Advisor Shares or for additional information;
(b) in the event of the issuance by the SEC of any
stop order suspending the effectiveness of the registration statement,
prospectus or statement of additional information then in effect with
respect to the Common Shares and/or Advisor Shares or the initiation of
any proceeding for that purpose;
(c) of the happening of any event that makes untrue
any statement of a material fact made in the registration statement,
prospectus or statement of additional information then in effect with
respect to the Common Shares and/or Advisor Shares or that requires the
making of a change in such registration statement, prospectus or
statement of additional information in order to make the statements
therein not misleading; and
(d) of all actions of the SEC with respect to any
amendment to any registration statement, prospectus or statement of
additional information with respect to the Common Shares or Advisor
Shares which may from time to time be filed with the SEC.
7. Term of Agreement
This Agreement shall continue until April 17, 1997 with
respect to each of the Common Shares and Advisor Shares, and thereafter shall
continue automatically for successive annual periods ending on April 17th of
each year, provided such continuance is specifically approved at least annually
by (a) a vote of a majority of the Fund's Board of Directors or (b) a vote of a
majority (as defined in the 1940 Act) of each of the
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outstanding Common Shares and Advisor Shares, respectively, provided that the
continuance is also approved by a vote of a majority of the Fund's Directors who
are not interested persons (as defined in the 1940 Act) of the Fund and who have
no direct or indirect financial interest in the operation of the Distribution
Plan, in this Agreement or in any agreement related to the Distribution Plan
("Qualified Directors"), by vote cast in person at a meeting called for the
purpose of voting on such approval. This Agreement is terminable with respect to
the Common Shares or the Advisor Shares without penalty (a) on sixty (60) days'
written notice, by a vote of a majority of the Fund's Qualified Directors or by
vote of a majority (as defined in the 1940 Act) of the outstanding Common Shares
or Advisor Shares, as applicable, or (b) on ninety (90) days' written notice by
Counsellors Securities. This Agreement will also terminate automatically in the
event of its assignment (as defined in the 1940 Act).
8. Amendments
All material amendments to this Agreement must be approved by
vote of the Fund's Board of Directors, and by a vote of a majority of the
Qualified Directors, cast in person at a meeting called for the purpose of
voting on the approval.
9. Confidentiality
Counsellors Securities agrees on behalf of itself and its
employees to treat confidentially and as proprietary information of the Fund all
records and other information relative to the Fund and its prior, present or
potential shareholders, and not to use such records and information for any
purpose other than performance of its responsibilities and duties hereunder,
except after prior notification to and approval in writing by the Fund, which
approval shall not be unreasonably withheld and may not be withheld where
Counsellors Securities may be exposed to civil or criminal contempt proceedings
for failure to comply, when requested to divulge such information by duly
constituted authorities, or when so requested by the Fund.
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Please confirm that the foregoing is in accordance with your
understanding by indicating your acceptance hereof at the place below indicated,
whereupon it shall become a binding agreement between us.
Very truly yours,
WARBURG, PINCUS GROWTH & INCOME FUND, INC.
By: _______________________________
Name:
Title:
Accepted:
COUNSELLORS SECURITIES INC.
By: ________________________________
Name:
Title:
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