As Filed with the Securities and Exchange Commission on January 30, 2002
Registration No. 333-
---------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM N-14
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
[ ] Pre-Effective Amendment No. __
[ ] Post-Effective Amendment No. __
BERGER GROWTH FUND, INC.
(Exact Name of Registrant as Specified in Charter)
210 UNIVERSITY BOULEVARD, SUITE 800
DENVER, COLORADO 80206
(Address of Principal Executive Offices, Zip Code)
Registrant's Telephone Number, including Area Code (303) 329-0200
----------
JACK R. THOMPSON
BERGER GROWTH FUND, INC.
210 UNIVERSITY BOULEVARD, SUITE 800
DENVER, COLORADO 80206
(Name and Address of Agent for Service)
Copy to:
DEBORAH BIELICKE EADES
VEDDER, PRICE, KAUFMAN & KAMMHOLZ
222 NORTH LASALLE STREET
CHICAGO, ILLINOIS 60601
----------
Approximate date of proposed public offering: As soon as practicable
after the effective date of this Registration Statement.
It is proposed that this filing will become effective on March 1, 2002
pursuant to Rule 488.
No filing fee is required because an indefinite number of shares have
previously been registered pursuant to Rule 24f-2 under the Investment Company
Act of 1940.
QUESTIONS AND ANSWERS
YOUR VOTE IS VERY IMPORTANT
Q. What are shareholders being asked to vote on at the upcoming special
meeting on May 8, 2002?
A. The Board of Trustees of the Berger Select Fund has called the special
meeting at which you will be asked to vote on a reorganization (the
"Reorganization") of your fund into the Berger Growth Fund.
Q. What are the differences between the Funds?
A. The Funds have similar investment objectives and both Funds invest in
the common stocks of growth companies. However, the Berger Growth Fund,
unlike the Berger Select Fund, is diversified.
Q. What are the advantages for Berger Select Fund shareholders?
A. Combining the two funds will benefit shareholders by allowing them to
continue their investment in a fund with a similar investment objective
and compatible investment policies. The combined fund will have a
larger asset base and the potential for lower overall expenses than the
Select Fund.
Q. Has the Berger Select Fund's Board of Trustees approved the proposal?
A. Yes, the Board has. The Fund's Board of Trustees unanimously approved
the Reorganization and recommends that you vote in favor of it.
Q. What is the timetable for the Reorganization?
A. If approved by shareholders on May 8, 2002, the Reorganization is
expected to take effect on May 10, 2002.
Q. Will I receive new shares in exchange for my current shares?
A. Yes. Upon approval and completion of the Reorganization, shareholders
of the Berger Select Fund will exchange their shares for shares of the
Berger Growth Fund based upon a specified exchange ratio determined by
the respective net asset values of the Funds. You will receive shares
of the Berger Growth Fund whose aggregate value at the time of issuance
will equal the aggregate value of your Berger Select Fund shares on
that date.
Q. Will the Fund have to pay any fees or expenses in connection with the
Reorganization?
A. No. Berger Financial Group LLC, the investment adviser of the Funds,
has agreed to bear the costs of the Reorganization.
Q. Will the Reorganization create a taxable event for me?
A. The Reorganization is intended to be done on a tax-free basis for
federal income tax purposes. Therefore, you will recognize no gain or
loss for federal income tax purposes as a result of the Reorganization.
In addition, the tax basis and holding period of the Berger Growth Fund
shares you receive will be the same in the aggregate as the tax basis
and holding period of your Berger Select Fund shares.
Q. Can I exchange or redeem my Berger Select Fund shares before the
Reorganization takes place?
A. Yes. You may exchange your Berger Select Fund shares for shares of any
other Berger Fund or for money market shares in the Cash Account Trust
Portfolios, or redeem your shares, at any time before the
Reorganization takes place. If you choose to do so, your request will
be treated as a normal exchange or redemption of shares and will be a
taxable transaction.
Q. How do I vote my shares?
A. You can vote your shares by mail using the enclosed proxy card. You can
also vote by telephone or by the Internet. If you need more information
on how to vote or if you have any questions, please call
______________________ at ______________.
Q. What happens if the Reorganization is not approved?
A. If shareholders do not approve the Reorganization, the Reorganization
will not take effect and the Fund's Board of Trustees will take such
action as they deem to be in the best interests of the Fund and the
Fund's shareholder.
BERGER SELECT FUND
A SERIES OF BERGER INVESTMENT PORTFOLIO TRUST
NOTICE OF SPECIAL MEETING OF SHAREHOLDERS
TO BE HELD ON MAY 8, 2002
Notice is hereby given that a Special Meeting of Shareholders of Berger Select
Fund, a series of the Berger Investment Portfolio Trust (the "Trust"), will be
held at the offices of Berger Financial Group LLC, 210 University Boulevard,
Suite 800, Denver, Colorado 80206, on May 8, 2002 at 10:00 a.m. Mountain time,
for the purposes of considering the proposals set forth below. The proposals, if
approved, will result in the transfer of the assets and all liabilities of the
Berger Select Fund to the Berger Growth Fund, Inc. ("Berger Growth Fund") in
return for shares of the Berger Growth Fund (the "Reorganization"). The Berger
Select Fund will then be terminated as soon as practicable thereafter.
Proposal 1: To approve an Agreement and Plan of Reorganization (attached
hereto as Exhibit A) providing for the transfer of all of the
assets and all liabilities of the Berger Select Fund in exchange
for Berger Growth Fund shares, and the shares so received will be
distributed to shareholders of the Berger Select Fund.
Proposal 2: The transaction of such other business as may properly be brought
before the meeting.
Shareholders of record of the Berger Select Fund as of the close of
business on February 27, 2002 are entitled to notice of, and to vote at this
meeting, or any adjournment of this meeting.
SHAREHOLDERS ARE REQUESTED TO EXECUTE AND RETURN PROMPTLY THE
ACCOMPANYING PROXY CARD, WHICH IS BEING SOLICITED BY THE BOARD OF TRUSTEES OF
THE TRUST. YOU MAY EXECUTE THE PROXY CARD USING THE METHODS DESCRIBED IN THE
PROXY CARD. EXECUTING THE PROXY CARD IS IMPORTANT TO ENSURE A QUORUM AT THE
MEETING. PROXIES MAY BE REVOKED AT ANY TIME BEFORE THEY ARE EXERCISED BY
SUBMITTING A WRITTEN NOTICE OF REVOCATION OR A SUBSEQUENTLY EXECUTED PROXY OR BY
ATTENDING THE MEETING AND VOTING IN PERSON.
By Order of the Board of Trustees
Sue Vreeland
Secretary
Berger Investment Portfolio Trust
March 8, 2002
PROXY STATEMENT/PROSPECTUS
DATED MARCH 8, 2002
RELATING TO THE ACQUISITION OF BERGER SELECT FUND
A SERIES OF BERGER INVESTMENT PORTFOLIO TRUST
BY AND IN EXCHANGE FOR SHARES OF BERGER GROWTH FUND, INC.
210 UNIVERSITY BOULEVARD, SUITE 800
DENVER, COLORADO 80206
1-800-551-5849
This Proxy Statement/Prospectus is furnished in connection with the
solicitation of proxies by the Board of Trustees of the Berger Investment
Portfolio Trust (the "Trust") in connection with the Special Meeting of
Shareholders (the "Meeting") of the Berger Select Fund, to be held on Wednesday,
May 8, 2002 at 10:00 a.m. Mountain time, at the offices of Berger Financial
Group LLC, 210 University Boulevard, Suite 800, Denver, Colorado 80206. At the
Meeting, shareholders of the Berger Select Fund will be asked to consider and
approve a proposed reorganization, as described in the Agreement and Plan of
Reorganization, a form of which is attached hereto as Exhibit A (the
"Reorganization Plan"), that will result in the transfer of the assets and all
liabilities of the Berger Select Fund to the Berger Growth Fund, Inc. ("Berger
Growth Fund") in return for shares of the Berger Growth Fund (the
"Reorganization"). The Berger Select Fund will then be terminated as soon as
practicable thereafter.
This Proxy Statement/Prospectus sets forth concisely the information
that a shareholder of the Berger Select Fund should know before voting on the
Reorganization, and should be retained for future reference. Certain additional
relevant documents listed below, which have been filed with the Securities and
Exchange Commission ("SEC"), are incorporated in whole or in part by reference.
A Statement of Additional Information dated March 8, 2002, relating to this
Proxy Statement/Prospectus and the Reorganization and including certain
financial information about the Berger Select Fund and the Berger Growth Fund,
has been filed with the SEC and is incorporated by reference into this Proxy
Statement/Prospectus. A copy of such Statement of Additional Information is
available upon request and without charge by writing to the Berger Funds, P.O.
Box 219958, Kansas City, Missouri 64121-9958, or by calling toll-free
1-800-551-5849.
THE SEC HAS NOT APPROVED OR DISAPPROVED THESE SECURITIES OR PASSED UPON
THE ADEQUACY OF THIS PROXY STATEMENT/PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
The Reorganization Plan provides that the Berger Select Fund will
transfer all of its assets and all liabilities to the Berger Growth Fund in
exchange for shares of the Berger Growth Fund, in an amount equal in value to
the aggregate net assets of the Berger Select Fund. These transfers are expected
to occur immediately after the close of the regular trading session on the New
York Stock Exchange (normally, 4:00 p.m. Eastern time) (the "Effective Time") on
May 10, 2002 (the "Closing Date").
Immediately after the transfer of the Berger Select Fund's assets and
all liabilities, the Berger Select Fund will make a liquidating distribution to
its shareholders of the Berger Growth Fund's shares received, so that a holder
of shares in the Berger Select Fund at the Effective Time of the Reorganization
will receive a number of shares of the Berger Growth Fund with the same
aggregate value as the shareholder had in the Berger Select Fund immediately
before the Effective Time. At the Effective Time, shareholders of the Berger
Select Fund will become shareholders of the Berger Growth Fund. The Berger
Select Fund will then be terminated as soon as practicable thereafter.
i
The Trust and the Berger Growth Fund are open-end, management
investment companies registered under the Investment Company Act of 1940 (the
"1940 Act"). Berger Financial Group LLC ("Berger Financial Group") is the
investment adviser and administrator to the Funds. Berger Financial Group is a
subsidiary of Stilwell Management Inc. ("Stilwell"), which owns more than 80% of
Berger Financial Group, and is an indirect subsidiary of Stilwell Financial Inc.
Berger Distributors LLC is the principal underwriter of the Funds. Stilwell owns
approximately 32% of the outstanding shares of DST Systems, Inc., which serves
as transfer agent for the Funds.
For a more detailed discussion of the investment objectives, policies,
risks and restrictions of the Funds, see the Berger Funds' prospectus and
statement of additional information dated January 29, 2002, as amended and/or
supplemented, which have been filed with the SEC and are incorporated by
reference into this Proxy Statement/Prospectus insofar as they relate to the
Berger Funds participating in the Reorganization. No other parts of the
prospectus or statement of additional information are incorporated herein. A
copy of the prospectus accompanies this Proxy Statement/Prospectus. Copies of
the statement of additional information are available upon request and without
charge by calling 1-800-551-5849.
This Proxy Statement/Prospectus is expected to be sent to shareholders
on or about March 8, 2002.
ii
TABLE OF CONTENTS
<Table>
<Caption>
PAGE
SYNOPSIS......................................................................1
INVESTMENT RISKS..............................................................6
INFORMATION RELATING TO THE REORGANIZATION....................................7
FEDERAL INCOME TAXES..........................................................8
CAPITALIZATION................................................................9
BOARD CONSIDERATIONS..........................................................9
SHAREHOLDER RIGHTS............................................................9
ADDITIONAL INFORMATION.......................................................11
VOTING MATTERS...............................................................12
OTHER BUSINESS...............................................................13
SHAREHOLDER INQUIRIES........................................................13
Exhibit A - Agreement and Plan of Reorganization
Exhibit B - Management's Discussion of the Berger Growth Fund's Performance
</Table>
i
SYNOPSIS
This Synopsis is designed to allow you to compare the current fees,
investment objectives, policies and restrictions, and distribution, purchase,
exchange and redemption procedures of the Berger Select Fund with those of the
Berger Growth Fund. It is a summary of certain information contained elsewhere
in this Proxy Statement/Prospectus, or incorporated by reference into this Proxy
Statement/Prospectus. Shareholders should read this entire Proxy
Statement/Prospectus carefully. For more complete information, please read the
prospectus for each Fund.
THE REORGANIZATION
BACKGROUND. Pursuant to the Reorganization Plan (a form of which is
attached hereto as Exhibit A), the Berger Select Fund will transfer all of its
assets and all liabilities to the Berger Growth Fund in exchange for shares of
the Berger Growth Fund. The Berger Select Fund will distribute the Berger Growth
Fund shares that it receives to its shareholders. The Berger Select Fund will
then be terminated as soon as practicable thereafter. The result of the
Reorganization is that shareholders of the Berger Select Fund will become
shareholders of the Berger Growth Fund.
The Board of Trustees of the Berger Select Fund, including the Trustees
who are not "interested persons" within the meaning of Section 2(a)(19) of the
1940 Act, considered the proposed Reorganization at a meeting held on January
16, 2002. After a thorough review of all aspects of the Reorganization and for
the reason set forth below (see "Board Considerations"), the Board has
determined that the Reorganization would be in the best interests of the Berger
Select Fund and its existing shareholders, and that the interests of existing
shareholders would not be diluted as a result of the transactions contemplated
by the Reorganization. THE BOARD OF TRUSTEES OF THE BERGER SELECT FUND
UNANIMOUSLY RECOMMENDS THAT YOU VOTE FOR APPROVAL OF THE REORGANIZATION.
TAX CONSEQUENCES. The Reorganization is intended to qualify as a
tax-free reorganization for U.S. federal income tax purposes. If the
Reorganization so qualifies, neither the Berger Select Fund nor its shareholders
will recognize tax gain or loss in the transactions contemplated by the
Reorganization. As a condition to the closing of the Reorganization, the Trust
and the Berger Growth Fund will receive a tax opinion from
PricewaterhouseCoopers LLP to that effect. No tax ruling from the Internal
Revenue Service regarding the Reorganization has been requested. The tax opinion
is not binding on the Internal Revenue Service and does not preclude the
Internal Revenue Service from asserting a contrary position.
DISTRIBUTIONS. Before the Reorganization, the Berger Select Fund
expects to distribute ordinary income and capital gains, if any, to its
shareholders.
SPECIAL CONSIDERATIONS AND RISK FACTORS. The investment objective of
the Berger Growth Fund is long-term capital appreciation. The investment
objective of the Berger Select Fund is capital appreciation. Although many of
the investments of the Berger Growth Fund and the Berger Select Fund can be
regarded as substantially similar, the Funds are not identical. Therefore, an
investment in the Berger Growth Fund may involve investment risks that differ in
some respects from those of the Berger Select Fund. For a more complete
discussion of the risks associated with the respective Funds, see "INVESTMENT
RISKS" below.
THE TRUST AND THE BERGER GROWTH FUND
The Trust is an open-end, management investment company, which offers
redeemable shares in different series. It was organized as a Delaware business
trust on August 23, 1993. The Berger Select Fund, a series of the Trust, offers
one class of shares.
The Berger Growth Fund is an open-end management investment company
organized as a Maryland corporation on March 10, 1966. The Berger Growth Fund
offers one class of shares, its capital stock.
FEES AND EXPENSES
The following comparative fee table shows the fees for each Fund as of
September 30, 2001. The unaudited pro forma table shows the Berger Growth Fund's
fees assuming that the Reorganization is approved.
FUND EXPENSES
Shareholders in the Funds do not pay any sales loads, redemption or
exchange fees, but do indirectly bear Annual Fund Operating Expenses, which vary
from year to year.
ANNUAL OPERATING EXPENSES
(AS A PERCENTAGE OF AVERAGE NET ASSETS)
<Table>
<Caption>
PRO FORMA -
BERGER GROWTH BERGER SELECT BERGER GROWTH
FUND FUND FUND (UNAUDITED)
------------- ------------- ----------------
Management Fees........................ 0.71% 0.75% 0.71%
Distribution (12b-1) Fees.............. 0.25% 0.25% 0.25%
Other Expenses......................... 0.30% 0.44% 0.30%
Total Annual Operating Expenses........ 1.26% 1.44% 1.26%
</Table>
Annual Fund Operating Expenses are paid by each Fund. As a result, they
reduce the Fund's return. Fund expenses include management fees, 12b-1 fees and
administrative costs such as shareholder recordkeeping and reports, custodian
and pricing services and registration fees.
EXAMPLE
The following example helps you compare the cost of investing in each
Fund with the cost of investing in other mutual funds by showing what your costs
may be over time. It uses the same assumptions that other funds use in their
prospectuses:
o $10,000 initial investment
o 5% return for each year
o each Fund's operating expenses remain the same for each period
o redemption after the end of each period
o reinvestment of all dividends and distributions
Your actual costs may be higher or lower, so this example should be
used for comparison only. Based on these assumptions, your costs at the end of
each time period would be:
2
<Table>
<Caption>
FUND 1 YEAR 3 YEARS 5 YEARS 10 YEARS
---- ------ ------- ------- --------
Berger Growth Fund............... $128 $400 $692 $1,523
Berger Select Fund............... $147 $456 $787 $1,724
Pro Forma - Berger Growth Fund... $128 $400 $692 $1,523
</Table>
INVESTMENT ADVISER
Berger Financial Group, the investment adviser to the Funds, is a
direct subsidiary of Stilwell Management, Inc. and an indirect subsidiary of
Stilwell Financial Inc. Berger Financial Group is registered as an investment
adviser under the Investment Advisers Act of 1940. Berger Financial Group,
located at 210 University Boulevard, Suite 800, Denver, Colorado 80206 had
approximately $8.7 billion in assets under management as of December 31, 2001.
INVESTMENT ADVISORY AGREEMENTS AND FEE WAIVERS
Under the Investment Advisory Agreement between each Fund and Berger
Financial Group, Berger Financial Group is generally responsible for furnishing
continuous advice and making decisions as to the acquisition, holding or
disposition of securities or other assets which each Fund may own or contemplate
acquiring from time to time. Each Investment Advisory Agreement provides that
the investment advisor shall not be liable for any error of judgment or mistake
of law or for any loss arising out of any investment or for any act or omission
taken with respect to a Fund, except for willful misfeasance, bad faith or gross
negligence in the performance of its duties or by reason of reckless disregard
of its obligations and duties thereunder and except to the extent otherwise
provided by law.
Under its agreement with each Fund, Berger Financial Group receives a
fee for its services at the rate of .75% of average daily net assets for the
first $500 million of assets, .70% of average daily net assets for the next $500
million in assets and .65% of average daily net assets over $1 billion. Under a
written agreement, Berger Financial Group waives its fees to the extent that the
annual operating expenses for the Berger Growth Fund, including the investment
advisory fee, but excluding the 12b-1 fee, brokerage commissions, interest,
taxes and extraordinary expenses, exceed 2.5% of the first $30,000,000 of
average daily net assets, plus 2% of the next $70,000,000, plus 1.5% of the
balance of the average daily net assets of the Fund in any fiscal year. The
agreement may be terminated by Berger Financial Group upon 90 days' prior
written notice to the Fund.
RULE 12b-1 DISTRIBUTION PLAN
To pay for the cost of promoting the Fund and servicing shareholder
accounts, each Fund has adopted a Rule 12b-1 distribution plan. Under the plan,
an annual fee of 0.25% out of each Fund's average daily net assets is paid to
Berger Financial Group to finance activities primarily intended to result in the
sale of Fund shares. Payments to Berger Financial Group under the plan may be
more or less than actual expenses incurred.
INVESTMENT OBJECTIVES, POLICIES AND RESTRICTIONS
This section will help you compare the investment objectives and
policies of the Berger Growth Fund with the Berger Select Fund. Please be aware
that this is only a brief discussion. More complete information may be found in
the Funds' prospectus.
While the Funds have similar investment objectives and policies, there
are some differences. The investment objective of the Berger Growth Fund is
long-term capital appreciation. The investment objective of the Berger Select
Fund is capital appreciation. Each Fund's investment objective is fundamental
and may not be changed without shareholder approval. The Berger Growth Fund is a
3
diversified fund that primarily invests in the common stocks of established
companies with the potential for growth. In selecting stocks for the Berger
Growth Fund, Berger Financial Group focuses on companies that have demonstrated
an ability to generate above-average growth in revenue and earnings regardless
of the company's size. The Berger Select Fund invests primarily in the common
stocks of companies with superior potential for strong revenues and earnings
growth. The Berger Select Fund is a nondiversified fund that normally invests in
a core portfolio of 20-30 common stocks of companies of any size whose growth
potential is not yet fully reflected in the company's stock price. Berger
Financial Group may actively trade each Fund's portfolio in pursuit of its
investment objective.
Each Fund may invest in a relatively small number of related
industries. As secondary investment strategies in seeking to achieve their
investment objectives, both Funds are permitted to invest in foreign securities,
convertible securities, investment grade bonds, illiquid and restricted
securities of up to 15% of net assets, special situations (companies about to
undergo a structural, financial or management change that may significantly
affect the value of their securities) and initial public offerings. Each Fund
may also use futures, forwards and options for hedging purposes and may invest
in government securities and short-term, interest-bearing securities that are
inconsistent with the Fund's investment strategies when Berger Financial Group
believes market conditions warrant a temporary defensive position.
Although both Funds may invest in securities of small and mid-sized
companies, the Berger Growth Fund tends to focus on such securities while the
Berger Select Fund does not. Both Funds may also invest in companies with
limited operating histories; however, the Berger Growth Fund has adopted a
fundamental restriction (i.e., one that cannot be changed without a shareholder
vote) limiting its investments in such companies to up to 5% of its total
assets. Although each Fund may borrow from a bank or other financial institution
for temporary or emergency reasons, the Berger Growth Fund and the Berger Select
Fund have adopted fundamental restrictions limiting borrowings to 5% and 25% of
total assets, respectively. The Berger Select Fund is permitted to lend
portfolio securities representing up to 33 1/3% of its total assets. The Berger
Growth Fund has adapted a fundamental restriction that prohibits it from lending
portfolio securities.
PORTFOLIO MANAGERS
Jay W. Tracey, CFA, is the portfolio manager of the Berger Growth Fund.
Mr. Tracey, Executive Vice President and Chief Investment Officer of Berger
Financial Group, assumed management of the Berger Growth Fund in August 2000.
Mr. Tracey joined Berger Financial Group in June 2000. From November 1995 to May
2000, he was Vice President and Portfolio Manager of OppenheimerFunds, Inc.
where he managed emerging growth funds. Mr. Tracey has more than 24 years
experience in the investment management industry.
The Berger Select Fund is managed by a team, which includes Mr. Tracey,
Steven L. Fossel and Paul A. LaRocco, CFA.
PERFORMANCE
The following table shows the Funds' average annual total returns over
different periods and shows how the Funds' performance compares with the Russell
3000 Growth Index, the Funds' new benchmark index, and the Standard & Poor's 500
Index, the Funds' previous benchmark index. The performance of the Funds and the
indices vary over time, and past performance is not necessarily indicative of
future results. The Funds' returns assume reinvestment of dividends and
distributions.
4
AVERAGE ANNUAL TOTAL RETURNS
AS OF DECEMBER 31, 2001
<Table>
<Caption>
LIFE OF
FUND 1 YEAR 5 YEARS 10 YEARS THE FUND
---- ------ ------- -------- ----------
Berger Growth Fund ............. (32.47)% 1.94% 6.43% N/A
Berger Select Fund.............. (39.82)% N/A N/A 6.11%(1)
Russell 3000 Growth Index(2).... (19.63)% 7.72% 10.41% (3.05)%(1)
S&P 500 Index(3)................ (11.88)% 10.70% 12.94% 5.67%(1)
</Table>
- ----------
(1) Since December 31, 1997.
(2) The Russell 3000 Growth Index is an unmanaged index, with dividends
reinvested, which measures the performance of those Russell 3000 companies
with higher price-to-book ratios and higher forecasted growth values. The
stocks in this index are also members of either the Russell 1000 Growth
Index or the Russell 2000 Growth Index.
(3) The S&P 500 Index is an unmanaged index, with dividends reinvested, which
consists of the common stocks of 500 publicly traded U.S. companies.
PURCHASE, EXCHANGE AND REDEMPTION PROCEDURES
PURCHASE PROCEDURES
Shares may be purchased directly from the Berger Funds by mail,
telephone, or online. Shares may also be purchased through broker-dealers or
other financial organizations. The minimum initial purchase requirement is
$2,500 for regular accounts and $500 for individual retirement accounts. Shares
purchased through regular deductions from a designated bank account (i.e., Low
Minimum Investment Plan) may be purchased for a minimum investment of $50 per
month. The minimum subsequent purchase requirement is $50.
Fund shares may be purchased on any business day at a price per share
equal to the NAV next determined after the purchase request is received in good
order and accepted by the Fund. The NAV of each Fund is calculated once each
business day as of the close of the regular trading session on the New York
Stock Exchange (normally, 4:00 p.m. Eastern time). The NAV per share is
calculated by dividing the total value of each Fund's investments, cash and
other assets, less any liabilities, by the total outstanding shares of that
Fund.
EXCHANGE PRIVILEGES
Shareholders may exchange shares of one Berger Fund for shares of
another Berger Fund within the same class of shares or for money market shares
in the Cash Account Trust Portfolios (the "CAT Portfolios"). Exchanges may be
made by mail, telephone or online. Exchanges may also be made automatically ($50
minimum) through the Systematic Exchange Plan on a monthly, quarterly,
semi-annual or annual basis. The exchange price is the NAV next determined after
the exchange request is received in good order and accepted by the Fund.
Exchanges into a new Fund or CAT Portfolio must meet the Fund or Portfolio's
minimum initial and subsequent purchase requirements. The Funds may terminate or
modify the exchange privilege at any time.
REDEMPTION PROCEDURES
Shareholders may redeem shares on any business day by mail, telephone
or online (for non-retirement accounts). The redemption price will be the NAV
next determined after the redemption request is received in good order and
accepted by the Fund. Redemptions also may be made through a Systematic
Withdrawal Plan in amounts of $50 or more. The Systematic Withdrawal Plan
requires that a
5
shareholder's account have a value of $5,000 or more. If a Berger Select Fund
shareholder's account balance drops below $2,000 due to redemptions, including
redemptions made through a Systematic Withdrawal Plan, the Fund may redeem the
shareholder's remaining shares and close the account. However, the shareholder
will always be given at least 60 days' notice to give him time to add to his
account and avoid an involuntary redemption. Berger Growth Fund shareholders are
not subject to involuntary redemptions for low account balances.
If the shareholder's address of record has changed within the last 15
days, the redemption request exceeds $100,000, the shareholder requests that
proceeds be sent to an address or an account that is different from the address
of record or in certain other circumstances, the Funds require a written
redemption request with a signature guarantee from an eligible guarantor (a
notarized signature is not sufficient).
REDEMPTIONS IN KIND
The Funds have elected to pay redemption proceeds in cash up to
$250,000 or 1% of each Fund's total value during any 90-day period for any one
shareholder, whichever is less. Because larger redemptions may be detrimental to
existing shareholders, the Funds reserve the right to make payments in the form
of portfolio securities under unusual circumstances (a redemption in kind).
A redemption in kind will consist of securities equal in value to the
shares redeemed. In the event that a redemption in kind were made, shareholders
would probably have to pay brokerage costs to sell the securities distributed to
them, as well as taxes on any gain from the sale. Shareholders may have
difficulty selling the securities and recovering the amount of their redemption
if the securities are illiquid.
DIVIDEND POLICIES
The Funds declare and pay dividends annually. The Funds distribute
capital gains, if any, at least annually, normally in December. Shareholders
will receive dividends and distributions in the form of additional shares unless
they have elected to receive payment in cash.
INVESTMENT RISKS
Because the Berger Growth Fund's investment objective is similar to
that of the Berger Select Fund and both Funds invest in the common stocks of
growth companies, an investment in the Berger Growth Fund is subject to many of
the same risks as an investment in the Berger Select Fund. Both Funds are
subject to the risks of equity investing. Because the price of common stock
moves up and down in response to corporate earnings and developments, economic
and market conditions and unanticipated events, the price of the Fund's
investments may go down and investors may lose money on their investment. Each
Fund's investments may focus in a small number of business sectors, which may
pose greater market and liquidity risks. In addition, each Fund's active trading
will cause the Fund to have an increased portfolio turnover rate. Higher
turnover rates may result in higher brokerage costs to the Fund and in higher
net taxable gains for investors.
The Berger Select Fund's share price may fluctuate more than the market
in general and most equity funds because of its ability as a nondiversified fund
to take larger positions in a smaller number of companies. As a result, the
gains or losses on a single stock may have a greater impact on the Berger Select
Fund's share price. Because the Berger Growth Fund is a diversified fund, it is
not subject to the risks associated with taking larger positions in a smaller
number of companies. Although the Berger Growth Fund and the Berger Select Fund
each invests in stocks of companies of all sizes, the Berger
6
Growth Fund tends to focus on smaller size companies. Small and mid-sized
companies may pose greater market, liquidity and information risks because of
narrow product lines, limited financial resources, less depth in management or a
limited trading market for their stocks.
INFORMATION RELATING TO THE REORGANIZATION
DESCRIPTION OF THE REORGANIZATION. The following summary is qualified
in its entirety by reference to the Reorganization Plan found in Exhibit A. The
Reorganization Plan provides for the Reorganization to occur on or about May 10,
2002.
The Reorganization Plan provides that all of the assets and all
liabilities of the Berger Select Fund will be transferred to the Berger Growth
Fund immediately after the close of the regular trading session on the New York
Stock Exchange (normally, 4:00 p.m. Eastern time) on the Closing Date of the
Reorganization. In exchange for the transfer of these assets and liabilities,
the Berger Growth Fund will simultaneously issue at the Effective Time of the
Reorganization a number of full and fractional shares to the Berger Select Fund
equal in value to the aggregate net asset value of the Berger Select Fund
calculated before the Effective Time of the Reorganization.
Following the transfer of assets and liabilities in exchange for Berger
Growth Fund shares, the Berger Select Fund will distribute, in complete
liquidation, pro rata to its shareholders of record, all the shares of the
Berger Growth Fund so received. Shareholders of the Berger Select Fund owning
shares at the Effective Time of the Reorganization will receive a number of
shares of the Berger Growth Fund with the same aggregate value as the
shareholder had in the Berger Select Fund immediately before the Effective Time.
Such distribution will be accomplished by the establishment of accounts in the
names of the Berger Select Fund's shareholders on the share records of the
Berger Growth Fund's transfer agent. Each account will receive the respective
pro rata number of full and fractional shares of the Berger Growth Fund due to
the shareholders of the Berger Select Fund. The Berger Select Fund then will be
terminated. THE BERGER FUNDS NO LONGER ISSUE SHARE CERTIFICATES TO shareholders.
Shares of the Berger Growth Fund to be issued will have no preemptive or
conversion rights.
The Reorganization Plan contains customary representations, warranties
and conditions. The Reorganization Plan provides that the consummation of the
Reorganization with respect to the Berger Select Fund and the Berger Growth Fund
is conditioned upon, among other things: (i) approval of the Reorganization by
the Berger Select Fund's shareholders; and (ii) the receipt by the Funds of a
tax opinion to the effect that the Reorganization will be tax-free to the Berger
Select Fund, its shareholders and the Berger Growth Fund. The Reorganization
Plan may be terminated if, before the Closing Date, any of the required
conditions have not been met, the representations and warranties are not true or
the Board of Trustees of the Trust or Board of Directors of the Berger Growth
Fund determines that the Reorganization is not in the best interest of the
shareholders of the Berger Select Fund or the Berger Growth Fund, respectively.
COSTS OF REORGANIZATION. Berger Financial Group has agreed to bear the
costs of the Reorganization, including, without limitation: (a) expenses
associated with the preparation and filing of this Prospectus/Proxy Statement;
(b) postage; (c) printing; (d) accounting fees; (e) legal fees incurred by the
Funds; (f) solicitation costs; and (g) other related administrative or
operational costs. Neither Fund will pay any of these expenses.
7
FEDERAL INCOME TAXES
The Reorganization is intended to qualify for U.S. federal income tax
purposes as a tax-free reorganization under Section 368(a) of the Internal
Revenue Code of 1986, as amended. If it so qualifies, neither the Berger Select
Fund nor its shareholders will recognize tax gain or loss as a result of the
Reorganization; the tax basis of the Berger Growth Fund shares received by
shareholders will be the same in the aggregate as the basis of the Berger Select
Fund shares exchanged; and the holding period of the Berger Growth Fund shares
received will include the holding period of the Berger Select Fund shares
exchanged, provided that the shares exchanged were held as capital assets at the
time of the Reorganization. As a condition to the closing of the Reorganization,
the Trust and the Berger Growth Fund will receive a tax opinion from
PricewaterhouseCoopers LLP to that effect. No tax ruling from the Internal
Revenue Service regarding the Reorganization has been requested. The tax opinion
is not binding on the Internal Revenue Service or a court and does not preclude
the Internal Revenue Service from asserting or adopting a contrary position.
The Funds will continue their investment operations while the
Reorganization is pending. Accordingly, they may realize taxable income and
gains, which may have to be distributed to shareholders under the tax rules
relating to mutual funds. Even though the Reorganization is intended to be
tax-free for federal income tax purposes, shareholders should expect that such
distributions would be taxable to them.
As of September 30, 2001, Berger Select Fund and Berger Growth Fund had
unutilized capital loss carryovers of approximately $31 million and $328
million, respectively. The final amount of unutilized capital loss carryovers
for each Fund is subject to change and will not be determined until the time of
the Reorganization. After and as a result of the Reorganization, these capital
loss carryovers may in part be subject to limitations under applicable tax laws
on the rate at which they may be used in the future to offset capital gains of
Berger Growth Fund. As a result, some or all of the capital loss carryovers may
expire unutilized. The Funds' Board of Trustees took this factor into account in
concluding that the proposed Reorganization would be in the best interests of
the Funds and their shareholders.
SHAREHOLDERS SHOULD CONSULT THEIR OWN TAX ADVISERS CONCERNING THE
POTENTIAL TAX CONSEQUENCES OF THE REORGANIZATION TO THEM, INCLUDING FOREIGN,
STATE AND LOCAL TAX CONSEQUENCES.
8
CAPITALIZATION
The following table sets forth, as of September 30, 2001, the
capitalization of each Fund and the unaudited pro forma combined capitalization
of the Berger Growth Fund assuming the Reorganization has taken place. The
capitalizations are likely to be different on the Closing Date as a result of
daily share purchase and redemption activity.
<Table>
<Caption>
NET ASSET VALUE SHARES
FUND NET ASSETS PER SHARE OUTSTANDING
---- ------------ --------------- -----------
Berger Growth Fund $722,976,628 $6.95 104,084,227
Berger Select Fund $ 25,343,625 $5.88 4,310,505
Pro Forma - Berger Growth Fund (Unaudited) $748,320,253 $6.95 107,730,792
</Table>
BOARD CONSIDERATIONS
On January 16, 2002, the Board of Trustees of the Berger Select Fund,
including the Trustees who are not "interested persons" within the meaning of
Section 2(a)(19) of the 1940 Act, voted to approve the Reorganization and to
recommend its approval to shareholders. In reaching its decision, the Board
considered the following factors to be of importance: (1) the Berger Growth Fund
will have substantially similar investment objectives and policies as those of
the Berger Select Fund; (2) similar personnel who managed the Berger Select Fund
at Berger Financial Group will continue to manage the Berger Growth Fund after
the Reorganization; (3) Berger Financial Group has agreed to pay the Funds' cost
of the reorganization; (4) the reorganization is intended to qualify as a
tax-free reorganization for federal income tax purposes; and (5) the amount of
fees and expenses of the Berger Growth Fund are expected to be lower than the
fees and expenses of the Berger Select Fund. BASED ON THIS INFORMATION, THE
BOARD RECOMMENDS THAT THE SHAREHOLDERS OF THE BERGER SELECT FUND APPROVE THE
REORGANIZATION.
SHAREHOLDER RIGHTS
BERGER GROWTH FUND
GENERAL. The Berger Growth Fund is an open-end management investment
company established as a Maryland corporation pursuant to Articles of
Incorporation dated March 9, 1966. The Berger Growth Fund is also governed by
its By-Laws and applicable Maryland law.
SHARES. The Berger Growth Fund is authorized to issue 200,000,000
shares of its capital stock, with a par value of $.01. Currently, the Berger
Growth Fund offers one class of shares. The shares of the Berger Growth Fund
have no preference as to conversion features, exchange privileges or other
attributes, and have no preemptive rights.
VOTING RIGHTS. On any matter submitted to a vote of shareholders, each
full share is entitled to one vote.
SHAREHOLDER MEETINGS. The Berger Growth Fund is not required to hold
annual meetings of shareholders, but may hold special meetings of shareholders
under certain circumstances. A special meeting of shareholders for the purpose
of considering the removal of a director may be called by the directors or on
the request of shareholders owning at least 10% of the outstanding shares of the
Berger
9
Growth Fund. Special meetings for other purposes may be called by the directors
or at the request of shareholders owning at least 25% of the outstanding shares
of the Berger Growth Fund.
ELECTION AND TERM OF DIRECTORS. The Berger Growth Fund's affairs are
supervised by the directors under the laws governing corporations in the State
of Maryland. Subject to 1940 Act requirements, trustees may be elected by
shareholders or appointed by the Board. Directors hold office until their
successors are duly elected and qualified.
SHAREHOLDER LIABILITY. Pursuant to Maryland law and the Berger Growth
Fund's Articles of Incorporation, shareholders of the Berger Growth Fund
generally are not personally liable for the debts of the Berger Growth Fund.
DIRECTOR LIABILITY. Pursuant to the Berger Growth Fund's By-Laws, the
Berger Growth Fund indemnifies directors against all liabilities and expenses
incurred by reason of being a director to the full extent permitted by Maryland
law.
BERGER SELECT FUND
GENERAL. The Trust is an open-end management investment company
established as a Delaware business trust pursuant to a Trust Instrument dated
August 23, 1993. The Trust is also governed by its By-Laws and applicable
Delaware law.
SHARES. The Trust is authorized to issue an unlimited number of shares
of beneficial interest, with a par value of $.01, from an unlimited number of
series of shares. Currently, the Trust consists of eight separate investment
series offering up to two classes of shares: Investor Shares and Institutional
Shares. The two classes differ with respect to distribution fees. The shares of
each Fund have no preference as to conversion features, exchange privileges or
other attributes, and have no preemptive rights.
VOTING RIGHTS. On any matter submitted to a vote of shareholders, all
shares entitled to vote are voted on by individual series or class, except that
shares are voted in the aggregate and not by individual series or class in the
election of trustees of the Trust and on all matters relating to the Trust as a
whole. Each full share of each Fund has one vote, and each fractional share has
a proportionate fractional vote.
SHAREHOLDER MEETINGS. The Trust is not required to hold annual meetings
of shareholders, but may hold special meetings of shareholders under certain
circumstances. A special meeting of shareholders for the purpose of considering
the removal of a trustee may be called at any time by the trustees or by
shareholders holding at least 10% of the outstanding shares of the Trust.
Special meetings for other purposes may be called by the trustees or at the
request of shareholders owning at least 25% of the outstanding shares of the
Trust.
ELECTION AND TERM OF TRUSTEES. The Berger Select Fund's affairs are
supervised by the trustees under the laws governing business trusts in the State
of Delaware. Subject to 1940 Act requirements, trustees may be elected by
shareholders or appointed by the Board. Trustees hold office until their
successors are duly elected and qualified, or until their death, resignation,
retirement, removal or mental or physical incapacity. A trustee may be removed
at any time by unanimous written consent of the remaining trustees or by a vote
of shareholders holding two-thirds of the outstanding shares.
SHAREHOLDER LIABILITY. Pursuant to Delaware law and the Trust's Trust
Instrument, shareholders of the Trust are not personally liable for the acts,
omissions, liabilities or obligations of any kind of the Trust.
10
TRUSTEE LIABILITY. The Trustees generally are not personally liable for
any obligation of the Trust. The Trust will indemnify its trustees against all
liabilities and expenses, except for those arising from the trustee's willful
misfeasance, bad faith, gross negligence or reckless disregard of his or her
duties.
THE FOREGOING IS ONLY A SUMMARY OF CERTAIN RIGHTS OF SHAREHOLDERS OF
THE FUNDS UNDER THEIR GOVERNING CHARTER DOCUMENTS, BY-LAWS AND STATE LAW, AND IS
NOT A COMPLETE DESCRIPTION OF PROVISIONS CONTAINED IN THOSE SOURCES.
SHAREHOLDERS SHOULD REFER TO THE PROVISIONS OF THOSE DOCUMENTS AND STATE LAW
DIRECTLY FOR A MORE THOROUGH DESCRIPTION.
ADDITIONAL INFORMATION
Information concerning the operation and management of the Funds is
included in the current prospectus relating to the Funds, which is incorporated
herein by reference and a copy of which accompanies this Proxy
Statement/Prospectus. Additional information about the Funds is included in the
Statement of Additional Information for the Funds dated January 29, 2002, which
is available upon request and without charge by calling 1-800-551-5849.
The Funds are subject to the informational requirements of the
Securities Exchange Act of 1934 and the 1940 Act, and in accordance therewith
file reports and other information, including proxy material and charter
documents, with the SEC. These items may be inspected and copied at the Public
Reference Facilities maintained by the SEC at 450 Fifth Street, N.W.,
Washington, D.C. 20549 and at the SEC's regional offices in New York at 233
Broadway, New York, New York 10279 and in Chicago at 175 West Jackson Boulevard,
Suite 900, Chicago, Illinois 60604. Copies of such items can be obtained from
the Public Reference Branch, Office of Consumer Affairs, SEC, Washington, D.C.
20549 at prescribed rates.
INTEREST OF CERTAIN PERSONS IN THE REORGANIZATION. Stilwell may be
deemed to have an interest in the Reorganization because its subsidiary, Berger
Financial Group, provides investment advisory services to the Funds pursuant to
advisory agreements with the Funds. Future growth of the Berger Growth Fund can
be expected to increase the total amount of fees payable to Berger Financial
Group and to reduce the amount of fees required to be waived to maintain total
fees of the Berger Growth Fund at agreed upon levels.
FISCAL YEAR END AND FINANCIAL STATEMENTS. The fiscal year end of each
Fund is September 30.
The financial statements of the Funds are contained in the Berger
Funds' annual report to shareholders for the fiscal year ended September 30,
2001 and have been audited by PricewaterhouseCoopers LLP, their independent
accountants. These financial statements are incorporated by reference into this
Proxy Statement/Prospectus insofar as such financial statements relate to the
Funds participating in the Reorganization, and not to any other Berger Funds
that are described therein. The Funds will furnish, without charge, a copy of
their most recent Semi-Annual Report succeeding such Annual Report, if any, on
request. Requests should be directed to the Funds at P.O. Box 219958, Kansas
City, Missouri 64121-9958, or by calling 1-800-551-5849.
THE BOARD OF TRUSTEES OF THE TRUST UNANIMOUSLY RECOMMENDS THAT YOU VOTE
FOR APPROVAL OF THE REORGANIZATION.
11
VOTING MATTERS
GENERAL INFORMATION. This Proxy Statement/Prospectus is being furnished
in connection with the solicitation of proxies by the Board of Trustees of the
Trust. It is expected that the solicitation of proxies will be primarily by
mail. Officers and service contractors of the Funds may also solicit proxies by
telephone, facsimile, Internet or in person. The cost of solicitation will be
borne by Berger Financial Group.
VOTING RIGHTS AND REQUIRED VOTE. Shareholders of the Berger Select Fund
are entitled to one vote for each full share held and fractional votes for
fractional shares. One-third of the outstanding shares of the Berger Select Fund
entitled to vote, present in person or by proxy, constitutes a quorum. Approval
of the Reorganization requires the vote of one-half of the outstanding shares of
the Berger Select Fund entitled to vote on the proposal. Any shareholder giving
a proxy may revoke it at any time before it is exercised by submitting to the
Trust a written notice of revocation or a subsequently executed proxy or by
attending the Meeting and voting in person.
Shareholders may vote by filling out and signing the enclosed proxy
card and returning it in the postage paid envelope provided. Shareholders may
also communicate their proxies by telephone or by the Internet. To vote by
telephone, shareholder shall have their proxy cards ready and dial the toll-free
number that appears on the voting instruction form. Enter the 12-digit control
number found on the proxy card and follow the instructions that will be given.
To vote using the Internet, shareholder shall have their proxy cards available,
go to the website [www.proxyvote.com], enter the 12-digit control number found
on the proxy card and follow the instructions that will be given. Shareholders
who communicate proxies by telephone or by the Internet have the same power and
authority to issue, revoke or otherwise change their voting instruction as
currently exists for instructions communicated in written form. With respect to
telephonic or Internet voting, the Funds and their agents will follow procedures
designed to ensure accuracy and prevent fraud, including requiring identifying
shareholder information, recording the shareholder's instructions and confirming
to the shareholder after the fact.
Shares represented by a properly executed proxy will be voted in
accordance with the instructions thereon, or if no specification is made, the
shares will be voted "FOR" the approval of the Reorganization. It is not
anticipated that any matters other than the approval of the Reorganization will
be brought before the Meeting. Should other business properly be brought before
the Meeting, it is intended that the accompanying proxies will be voted in
accordance with the judgment of the persons named as such proxies. For the
purposes of determining the presence of a quorum for transacting business at the
Meeting, abstentions and broker "non-votes" (that is, proxies from brokers or
nominees indicating that such persons have not received instructions from the
beneficial owners 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 non-votes will have the effect of a "no"
vote for purposes of obtaining the requisite approval of the Reorganization.
If sufficient votes in favor of the proposals set forth in the Notice
of the Special Meeting are not received by the time scheduled for the Meeting,
the holders of a majority of shares present in person or by proxy at the Meeting
and entitled to vote at the Meeting, whether or not sufficient to constitute a
quorum, may adjourn the Meeting. Any business that might have been transacted at
the Meeting originally called may be transacted at any such adjourned session(s)
at which a quorum is present. The costs of any additional solicitation and of
any adjourned session(s) will be borne by Berger.
RECORD DATE AND OUTSTANDING SHARES. Only shareholders of record of the
Berger Select Fund at the close of business on February 27, 2002 (the "Record
Date") are entitled to notice of and to vote at the
12
Meeting and any postponement or adjournment thereof. At the close of business on
the Record Date, _______________ shares were outstanding and entitled to vote.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
BERGER GROWTH FUND. [AS OF THE RECORD DATE, THE OFFICERS AND DIRECTORS
OF THE BERGER GROWTH FUND AS A GROUP, BENEFICIALLY OWNED LESS THAN 1% OF THE
OUTSTANDING SHARES OF THE BERGER GROWTH FUND.] As of the Record Date, to the
best of the knowledge of the Berger Growth Fund, the following persons owned of
record or beneficially 5% or more of the outstanding shares of the Fund:
<Table>
<Caption>
PERCENTAGE TYPE OF
NAME AND ADDRESS OWNERSHIP OWNERSHIP
---------------- ---------- ---------
</Table>
BERGER SELECT FUND. [AS OF THE RECORD DATE, THE OFFICERS AND TRUSTEES
OF THE BERGER SELECT FUND AS A GROUP, BENEFICIALLY OWNED LESS THAN 1% OF THE
OUTSTANDING SHARES OF THE BERGER SELECT FUND.] As of the Record Date, to the
best of the knowledge of the Trust, the following persons owned of record or
beneficially 5% or more of the outstanding shares of the Berger Select Fund:
<Table>
<Caption>
PERCENTAGE TYPE OF
NAME AND ADDRESS OWNERSHIP OWNERSHIP
---------------- ---------- ---------
</Table>
EXPENSES. In order to obtain the necessary quorum at the Meeting,
additional solicitations may be made by mail, telephone, telegraph, facsimile or
personal interview by representatives of the Funds, Berger Financial Group or
service providers at an estimated cost of approximately $________. All costs of
solicitation (including the printing and mailing of this proxy statement,
meeting notice and form of proxy, as well as any necessary supplementary
solicitations) will be paid by Berger Financial Group. Persons holding shares as
nominees will, upon request, be reimbursed for their reasonable expenses in
sending soliciting material to their principals.
OTHER BUSINESS
The Board of Trustees of the Trust knows of no other business to be
brought before the Meeting. However, if any other matters come before the
Meeting, it is the intention that 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 form of proxy.
SHAREHOLDER INQUIRIES
Shareholder inquiries may be addressed to the Funds in writing at P.O.
Box 219958, Kansas City, Missouri 64121-9958, or by calling 1-800-551-5849.
13
SHAREHOLDERS WHO DO NOT EXPECT TO BE PRESENT AT THE MEETING ARE
REQUESTED TO VOTE USING THE METHODS DESCRIBED ON THE ENCLOSED PROXY CARDS, OR IN
PERSON AT THE MEETING.
By Order of the Board of Trustees,
Sue Vreeland
Secretary
Berger Investment Portfolio Trust
14
EXHIBIT A
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made as
of this _____day of _____, 2002, by and between Berger Growth Fund, Inc., a
Maryland corporation (the "Acquiring Fund"), and Berger Investment Portfolio
Trust (the "Trust"), a Delaware business trust, on behalf of the Berger Select
Fund (the "Selling Fund" and, collectively with the Acquiring Fund, the
"Funds").
This Agreement is intended to be, and is adopted as, a Plan of
Reorganization within the meaning of Section 368(a) of the United States
Internal Revenue Code of 1986, as amended (the "Code") and the Treasury
Regulations promulgated thereunder. The reorganization will consist of: (i) the
transfer of all of the assets of the Selling Fund in exchange for shares of
capital stock, par value $.01 per share, of the Acquiring Fund ("Acquiring Fund
Shares"); (ii) the assumption by the Acquiring Fund of all liabilities of the
Selling Fund; and (iii) the distribution of the Acquiring Fund Shares to the
shareholders of the Selling Fund and the liquidation of the Selling Fund as
provided herein, all upon the terms and conditions set forth in this Agreement
(the "Reorganization").
WHEREAS, the Acquiring Fund and the Trust are each open-end, management
investment companies registered under the Investment Company Act of 1940 (the
"1940 Act");
WHEREAS, the Board of Directors of the Acquiring Fund has determined
that the Reorganization is in the best interests of the Acquiring Fund and that
the interests of the existing shareholders of the Acquiring Fund will not be
diluted as a result of the Reorganization; and
WHEREAS, the Board of Trustees of the Trust has determined that the
Reorganization is in the best interests of the Selling Fund and that the
interests of the existing shareholders of the Selling Fund will not be diluted
as a result of the Reorganization.
NOW, THEREFORE, in consideration of the premises and of the covenants
and agreements hereinafter set forth, the parties hereto covenant and agree as
follows:
ARTICLE I
TRANSFER OF ASSETS OF THE SELLING FUND IN EXCHANGE FOR ACQUIRING
FUND SHARES AND LIQUIDATION OF THE SELLING FUND
1.1 THE EXCHANGE. The Selling Fund agrees to transfer all of its
assets, as set forth in Section 1.2, to the Acquiring Fund. In exchange, the
Acquiring Fund agrees: (i) to deliver to the Selling Fund the number of full and
fractional Acquiring Fund Shares computed in the manner set forth in Section
2.3; and (ii) to assume all of the liabilities of the Selling Fund, as set forth
in Section 1.3. Such transactions shall take place at the Closing Date provided
for in Section 3.1.
1.2 ASSETS TO BE TRANSFERRED. The Selling Fund shall transfer all of
its assets to the Acquiring Fund, including, without limitation, all cash,
securities, commodities, interests in futures and dividends or interest
receivables, owned by the Selling Fund and any deferred or prepaid expenses
shown as an asset on the books of the Selling Fund on the Closing Date.
A-1
1.3 LIABILITIES TO BE ASSUMED. The Selling Fund will endeavor to
discharge all of its known liabilities and obligations to the extent possible
before the Closing Date. Notwithstanding the foregoing, any liabilities not so
discharged shall be assumed by the Acquiring Fund, which assumed liabilities
shall include all of the Selling Fund's liabilities, debts, obligations, and
duties of whatever kind or nature, whether absolute, accrued, contingent, or
otherwise, whether or not arising in the ordinary course of business, whether or
not determinable at the Closing Date, and whether or not specifically referred
to in this Agreement.
1.4 LIQUIDATION AND DISTRIBUTION. Immediately after the transfer of
assets provided for in Section 1.1, the Selling Fund will liquidate and
distribute pro rata to its shareholders of record at the Effective Time on the
Closing Date (the "Selling Fund Shareholders") all of the Acquiring Fund Shares
received by the Selling Fund pursuant to Section 1.1. Such distribution will be
accomplished by the transfer of Acquiring Fund Shares credited to the account of
the Selling Fund on the books of the Acquiring Fund to open accounts on the
share records of the Acquiring Fund in the name of the Selling Fund
Shareholders, and representing the respective pro rata number of Acquiring Fund
Shares due such shareholders. All issued and outstanding shares of the Selling
Fund will simultaneously be canceled on the books of the Selling Fund. The
Acquiring Fund shall not issue certificates representing Acquiring Fund Shares
in connection with such transfer.
1.5 OWNERSHIP OF SHARES. Ownership of Acquiring Fund Shares will be
shown on the books of the Acquiring Fund's transfer agent. Shares of the
Acquiring Fund will be issued simultaneously to the Selling Fund, in an amount
equal in value to the aggregate net asset value of the Selling Fund's shares, to
be distributed to Selling Fund Shareholders.
1.6 SELLING FUND'S PORTFOLIO SECURITIES. The Selling Fund will, within
a reasonable period of time before the Closing Date, furnish the Acquiring Fund
with a list of the Selling Fund's portfolio securities and other investments.
The Acquiring Fund will, within a reasonable time before the Closing Date,
furnish the Selling Fund with a list of the securities, if any, on the Selling
Fund's list referred to above that do not conform to the Acquiring Fund's
investment objectives, policies, and restrictions. The Selling Fund, if
requested by the Acquiring Fund, will dispose of securities on the Acquiring
Fund's list before the Closing Date. In addition, if it is determined that the
portfolios of the Funds, when aggregated, would contain investments exceeding
certain percentage limitations imposed upon the Acquiring Fund with respect to
such investments, the Selling Fund, if requested by the Acquiring Fund, will
dispose of a sufficient amount of such investments as may be necessary to avoid
violating such limitations as of the Closing Date. Notwithstanding the
foregoing, nothing herein will require the Selling Fund to dispose of any
investments or securities if, in the reasonable judgment of the Selling Fund's
trustees or investment adviser, such disposition would adversely affect the
tax-free nature of the Reorganization or would violate their fiduciary duties to
the Selling Fund Shareholders.
1.7 TRANSFER TAXES. The registered shareholder shall be responsible for
paying all transfer taxes, including any transfer taxes payable upon the
issuance of Acquiring Fund
A-2
Shares in a name other than the registered holder of the Selling Fund shares on
the books of the Selling Fund as of that time shall, as a condition of such
issuance and transfer.
1.8 TERMINATION. The Selling Fund shall be terminated promptly
following the Closing Date and the making of all distributions pursuant to
Section 1.4.
1.9 BOOKS AND RECORDS. All books and records of the Selling Fund,
including all books and records required to be maintained under the 1940 Act,
and the rules and regulations thereunder, shall be available to the Acquiring
Fund from and after the Closing Date and shall be turned over to the Acquiring
Fund as soon as practicable following the Closing Date.
ARTICLE II
VALUATION
2.1 VALUATION OF ASSETS. The value of the Selling Fund's net assets
shall be the value of such assets at the Effective Time (as defined in Section
3.1), using the valuation procedures set forth in the Trust's Trust Instrument
and the Selling Fund's then current prospectus and statement of additional
information, or such other valuation procedures as shall be mutually agreed upon
by the parties.
2.2 VALUATION OF SHARES. The net asset value per share of Acquiring
Fund Shares shall be the net asset value per share computed at the Effective
Time, using the valuation procedures set forth in the Acquiring Fund's Articles
of Incorporation and the Acquiring Fund's then current prospectus and statement
of additional information, or such other valuation procedures as shall be
mutually agreed upon by the parties.
2.3 SHARES TO BE ISSUED. The number of Acquiring Fund Shares to be
issued (including fractional shares, if any) in exchange for the Selling Fund's
net assets shall be determined by dividing the Selling Fund's net assets
determined in accordance with Section 2.1, by the Acquiring Fund's net asset
value per share determined in accordance with Section 2.2.
2.4 EFFECT OF SUSPENSION IN TRADING. In the event that on the Closing
Date, either: (a) the New York Stock Exchange (the "NYSE") or another primary
exchange on which the portfolio securities of the Acquiring Fund or the Selling
Fund are purchased or sold, shall be closed to trading or trading on such
exchange 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 Acquiring Fund or the Selling Fund is impracticable, the
Closing Date shall be postponed until the first business day after the day when
trading is fully resumed and reporting is restored.
ARTICLE III
CLOSING AND CLOSING DATE
3.1 CLOSING DATE. The Closing Date shall be May 10, 2002, or such other
date as the parties may agree. All acts taking place at the Closing shall be
deemed to take place immediately at the Effective Time unless otherwise
provided. The Effective Time shall be
A-3
immediately after the close of trading of the regular trading session on the
NYSE on the Closing Date, and the Closing shall be held at the offices of Berger
Financial Group LLC, 210 University Boulevard, Suite 800, Denver, Colorado
80206, or at such other time and/or place as the parties may agree.
3.2 CUSTODIAN'S CERTIFICATE. The Selling Fund shall instruct State
Street Bank and Trust Company, in its capacity as custodian for the Selling
Fund, to deliver at the Closing a certificate of an authorized officer stating
that: (a) the Selling Fund's portfolio securities, cash, and any other assets
shall have been delivered in proper form to the Acquiring Fund 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
by the Selling Fund.
3.3 TRANSFER AGENT'S CERTIFICATE. The Selling Fund shall instruct DST
Systems, Inc., in its capacity as transfer agent for the Selling Fund, to
deliver at the Closing a certificate of an authorized officer stating that its
records contain the names and addresses of Selling Fund Shareholders, and the
number and percentage ownership of outstanding shares owned by each such
shareholder immediately prior to the Closing. The Acquiring Fund shall instruct
DST Systems, Inc., in its capacity as transfer agent of the Acquiring Fund, to
issue and deliver to the Selling Fund a confirmation evidencing Acquiring Fund
Shares to be credited to each Selling Fund Shareholder on the Closing Date to
the Selling Fund or provide evidence satisfactory to the Selling Fund that such
Acquiring Fund Shares have been credited to the Selling Fund's account on the
books of the Acquiring Fund. At the Closing, each Fund shall deliver to the
other such bills of sale, checks, assignments, share certificates, receipts and
other documents, if any, as the other Fund or its counsel may reasonably
request.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.1 REPRESENTATIONS OF THE SELLING FUND. The Trust, on behalf of the
Selling Fund, represents and warrants as follows:
(a) The Trust is a voluntary association, duly organized,
validly existing, and in good standing under the laws of the State of Delaware
with the power to own all of its properties and assets and to carry on its
business as presently conducted.
(b) The Selling Fund is a separate series of the Trust duly
authorized in accordance with the application provisions of the Trust's Trust
Instrument.
(c) The Trust is registered as an open-end management
investment company under the 1940 Act, and such registration is in full force
and effect.
(d) The Selling Fund is not, and the execution, delivery, and
performance of this Agreement (subject to shareholder approval) will not, result
in the violation of any provision of the Trust's Trust Instrument or By-Laws or
of any material agreement, indenture, instrument, contract, lease, or other
undertaking to which the Selling Fund is a party or by which it is bound.
A-4
(e) Except as otherwise designated in writing and accepted by
the Acquiring Fund, the Selling Fund has no material contracts or other
commitments (other than this Agreement) that will be terminated with liability
to it before the Closing Date.
(f) No litigation, administrative proceeding, or investigation
of or before any court or governmental body is presently pending or to its
knowledge threatened against the Selling Fund or any of its properties or
assets, which, if adversely determined, would materially and adversely affect
its financial condition, the conduct of its business, or the ability of the
Selling Fund to carry out the transactions contemplated by this Agreement. The
Selling Fund knows of no facts that might form the 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 that materially and
adversely affects its business or its ability to consummate the transactions
contemplated herein.
(g) The financial statements of the Selling Fund as of
September 30, 2001 and for the fiscal year then ended have been prepared in
accordance with generally accepted accounting principles, and such statements
(copies of which have been furnished to the Acquiring Fund) fairly reflect the
financial condition of the Selling Fund as of September 30, 2001 and there are
no known contingent liabilities of the Selling Fund as of such date that are not
disclosed in such statements.
(h) Since the date of the financial statements referred to in
subsection (g) above, there have been no material adverse changes in the Selling
Fund's financial condition, assets, liabilities or business (other than changes
occurring in the ordinary course of business). For the purposes of this
subsection (h), a decline in the net asset value of the Selling Fund shall not
constitute a material adverse change.
(i) All federal and other tax returns and reports of the
Selling Fund required by law to be filed, have been filed, and all federal and
other taxes shown due on such returns and reports have been paid, or provision
shall have been made for the payment thereof. To the best of the Selling Fund's
knowledge, no such return is currently under audit, and no assessment has been
asserted with respect to such returns.
(j) All issued and outstanding shares of the Selling Fund are
duly and validly issued and outstanding, fully paid and non-assessable by the
Selling Fund. All of the issued and outstanding shares of the Selling Fund will,
at the time of the Closing Date, be held by the persons and in the amounts set
forth in the records of the Selling Fund's transfer agent as provided in Section
3.3. The Selling Fund has no outstanding options, warrants, or other rights to
subscribe for or purchase any of the Selling Fund shares, and has no outstanding
securities convertible into any of the Selling Fund shares.
(k) At the Closing Date, the Selling Fund will have good and
marketable title to the Selling Fund's assets to be transferred to the Acquiring
Fund pursuant to paragraph 1.2, and full right, power, and authority to sell,
assign, transfer, and deliver such assets hereunder, free of any lien or other
encumbrance, upon delivery and payment for such assets, the Acquiring Fund will
acquire good and marketable title thereto.
A-5
(l) The execution, delivery and performance of this Agreement
have been duly authorized by all necessary action on the part of the Selling
Fund. Subject to approval by the Selling Fund Shareholders, this Agreement
constitutes a valid and binding obligation of the Selling Fund, enforceable in
accordance with its terms, subject as to enforcement, to bankruptcy, insolvency,
reorganization, moratorium, and other laws relating to or affecting creditors'
rights and to general equity principles.
(m) The information to be furnished by the Selling Fund for
use in registration statements, proxy materials, and other documents that may be
necessary in connection with the transactions contemplated herein shall be
accurate and complete in all material respects and shall comply in all material
respects with federal securities and other laws and regulations.
(n) From the effective date of the Registration Statement (as
defined in Section 5.7), through the time of the meeting of the Selling Fund
Shareholders and on the Closing Date, any written information furnished by the
Trust with respect to the Selling Fund for use in the Proxy Materials (as
defined in Section 5.7), or any other materials provided in connection with the
Reorganization, does not and will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated or necessary to make
the statements, in light of the circumstances under which such statements were
made, not misleading.
(o) For each taxable year of its operations, the Selling Fund
has elected to qualify and has qualified as a "regulated investment company"
under the Code (a "RIC").
4.2 REPRESENTATIONS OF THE ACQUIRING FUND. The Acquiring Fund
represents and warrants as follows:
(a) The Acquiring Fund is a corporation, duly organized,
validly existing, and in good standing under the laws of the State of Maryland
with the power to own all of its properties and assets and to carry on its
business as presently conducted.
(b) The Acquiring Fund is registered as an open-end management
investment company under the 1940 Act, and such registration is in full force
and effect.
(c) The Acquiring Fund is not, and the execution, delivery and
performance of this Agreement will not, result in a violation of the Acquiring
Fund's Articles of Incorporation or By-Laws or of any material agreement,
indenture, instrument, contract, lease, or other undertaking to which the
Acquiring Fund is a party or by which it is bound.
(d) No litigation, administrative proceeding or investigation
of or before any court or governmental body is presently pending or to its
knowledge threatened against the Acquiring Fund or any of its properties or
assets, which, if adversely determined, would materially and adversely affect
its financial condition, the conduct of its business or the ability of the
Acquiring Fund to carry out the transactions contemplated by this Agreement. The
Acquiring Fund knows of no facts that might form the basis for the institution
of such proceedings and it is not a party to or subject to the provisions of any
order, decree, or judgment of any court or governmental body that materially and
adversely affects its business or its ability to consummate the transaction
contemplated herein.
A-6
(e) The financial statements of the Acquiring Fund as of
September 30, 2001 and for the fiscal year then ended have been prepared in
accordance with generally accepted accounting principles, and such statements
(copies of which have been furnished to the Selling Fund) fairly reflect the
financial condition of the Acquiring Fund as of September 30, 2001 and there are
no known contingent liabilities of the Acquiring Fund as of such date that are
not disclosed in such statements.
(f) Since the date of the financial statements referred to in
subsection (e) above, there have been no material adverse changes in the
Acquiring Fund's financial condition, assets, liabilities or business (other
than changes occurring in the ordinary course of business). For the purposes of
this subsection (f), a decline in the net asset value of the Acquiring Fund
shall not constitute a material adverse change.
(g) All federal and other tax returns and reports of the
Acquiring Fund required by law to be filed, have been filed. All federal and
other taxes shown due on such returns and reports have been paid or provision
shall have been made for their payment. To the best of the Acquiring Fund's
knowledge, no such return is currently under audit, and no assessment has been
asserted with respect to such returns.
(h) All issued and outstanding Acquiring Fund Shares are duly
and validly issued and outstanding, fully paid and non-assessable by the
Acquiring Fund. The Acquiring Fund has no outstanding options, warrants, or
other rights to subscribe for or purchase any Acquiring Fund Shares, and there
are no outstanding securities convertible into any Acquiring Fund Shares.
(i) The execution, delivery and performance of this Agreement
have been duly authorized by all necessary action on the part of the Acquiring
Fund, and this Agreement constitutes a valid and binding obligation of the
Acquiring Fund, enforceable in accordance with its terms, subject as to
enforcement, to bankruptcy, insolvency, reorganization, moratorium, and other
laws relating to or affecting creditors' rights and to general equity
principles.
(j) Acquiring Fund Shares to be issued and delivered to the
Selling Fund for the account of the Selling Fund Shareholders pursuant to the
terms of this Agreement will, at the Closing Date, have been duly authorized.
When so issued and delivered, such shares will be duly and validly issued
Acquiring Fund Shares, and will be fully paid and non-assessable.
(k) The information to be furnished by the Acquiring Fund for
use in registration statements, proxy materials, and other documents that may be
necessary in connection with the transactions contemplated herein shall be
accurate and complete in all material respects and shall comply in all material
respects with federal securities and other laws and regulations.
(l) From the effective date of the Registration Statement (as
defined in Section 5.7), through the time of the meeting of the Selling Fund
Shareholders and on the Closing Date, any written information furnished by the
Acquiring Fund for use in the Proxy Materials (as defined in Section 5.7), or
any other materials provided in connection with the Reorganization, will not
contain any untrue statement of a material fact or omit to state a
A-7
material fact required to be stated or necessary to make the statements, in
light of the circumstances under which such statements were made, not
misleading.
(m) For each taxable year of its operations, the Acquiring
Fund has elected to qualify, has qualified and shall continue to qualify as a
RIC under the Code.
(n) The Acquiring Fund agrees to use all reasonable efforts to
obtain the approvals and authorizations required by the 1933 Act, the 1940 Act,
and any state securities laws as it may deem appropriate in order to continue
its operations after the Closing Date.
ARTICLE V
COVENANTS OF THE FUNDS
5.1 OPERATION IN ORDINARY COURSE. The Acquiring Fund and the Selling
Fund will operate its respective business in the ordinary course between the
date of this Agreement and the Closing Date, it being understood that such
ordinary course of business will include customary dividends and distributions,
any other distribution necessary or desirable to avoid federal income or excise
taxes, and shareholder purchases and redemptions.
5.2 APPROVAL OF SHAREHOLDERS. The Trust will call a special meeting of
Selling Fund Shareholders to consider and act upon this Agreement (or
transactions contemplated thereby) and to take all other appropriate action
necessary to obtain approval of the transactions contemplated herein.
5.3 INVESTMENT REPRESENTATION. The Selling Fund covenants that the
Acquiring Fund Shares to be issued pursuant to this Agreement are not being
acquired for the purpose of making any distribution, other than in connection
with the Reorganization and in accordance with the terms of this Agreement.
5.4 ADDITIONAL INFORMATION. The Selling Fund will assist the Acquiring
Fund in obtaining such information as the Acquiring Fund reasonably requests
concerning the beneficial ownership of the Selling Fund's shares.
5.5 FURTHER ACTION. Subject to the provisions of this Agreement, each
Fund 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, including any actions
required to be taken after the applicable Closing Date.
5.6 STATEMENT OF EARNINGS AND PROFITS. As promptly as practicable, but
in any case within 60 days after the Closing Date, the Selling Fund shall
furnish the Acquiring Fund, in such form as is reasonably satisfactory to the
Acquiring Fund, a statement of the earnings and profits of the Selling Fund for
federal income tax purposes that will be carried over by the Acquiring Fund as a
result of Section 381 of the Code, and which will be certified by the Trust's
Treasurer.
5.7 PREPARATION OF REGISTRATION STATEMENT AND PROXY MATERIALS. The
Acquiring Fund will prepare and file with the Securities and Exchange
A-8
Commission (the "Commission") a registration statement on Form N-14 relating to
the Acquiring Fund Shares to be issued to shareholders of the Selling Fund (the
"Registration Statement"). The Registration Statement shall include a proxy
statement and a prospectus of the Acquiring Fund relating to the transaction
contemplated by this Agreement. The Registration Statement shall be in
compliance with the 1933 Act, the 1934 Act and the 1940 Act, as applicable. Each
party will provide the other party with the materials and information necessary
to prepare the proxy statement (the "Proxy Materials"), for inclusion therein,
in connection with the meeting of the Selling Fund Shareholders to consider the
approval of this Agreement and the transactions contemplated herein.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE TRUST AND THE SELLING
FUND
The obligations of the Trust and the Selling Fund to consummate the
transactions provided for herein shall be subject to the following conditions:
6.1 All representations, covenants, and warranties of the Acquiring
Fund contained in this Agreement shall be true and correct in all material
respects as of the date hereof and as of the Closing Date, with the same force
and effect as if made on and as of that Closing Date. The Acquiring Fund shall
have delivered to the Selling Fund a certificate executed in the Acquiring
Fund's name by the Acquiring Fund's President or Vice President and its
Treasurer or Assistant Treasurer, in form and substance satisfactory to the
Selling Fund and dated as of the Closing Date, to such effect and as to such
other matters as the Selling Fund shall reasonably request.
6.2 The Acquiring Fund shall have delivered to the Selling Fund a
certificate executed in the Acquiring Fund's name by the Acquiring Fund's
President or Vice President and its Treasurer or Assistant Treasurer, in form
and substance satisfactory to the Selling Fund and dated as of the Closing Date,
covering the following points:
(a) The Acquiring Fund is a corporation, duly organized and
validly existing under the laws of the State of Maryland, which has the power to
own all of its properties and assets and to carry on its business as presently
conducted.
(b) The Corporation is registered as an open-end management
investment company under the 1940 Act, and, such registration under the 1940 Act
is in full force and effect.
(c) This Agreement has been duly authorized, executed, and
delivered by the Acquiring Fund and, assuming due authorization, execution and
delivery of this Agreement by the Acquiring Fund, is a valid and binding
obligation of the Acquiring Fund enforceable against the Acquiring Fund in
accordance with its terms, subject as to enforcement, to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium, and other laws relating to or
affecting creditors' rights generally and to general equity principles.
(d) Assuming that the Acquiring Fund Shares have been issued
in accordance with the terms of this Agreement, Acquiring Fund Shares to be
issued and delivered to each Selling Fund on behalf of the Selling Fund
Shareholders, as provided by this Agreement, are
A-9
duly authorized and upon such delivery will be legally issued and outstanding
and fully paid and non-assessable, and no shareholder of the Acquiring Fund has
any preemptive rights with respect to Acquiring Fund Shares.
(e) The Registration Statement has been declared effective by
the Commission and no stop order under the 1933 Act pertaining thereto has been
issued, and no consent, approval, authorization or order of any court or
governmental authority of the United States or the State of Maryland is required
for consummation by the Acquiring Fund of the transactions contemplated herein,
except as have been obtained under the 1933 Act, the 1934 Act and the 1940 Act.
(f) The execution and delivery of this Agreement did not, and
the consummation of the transactions contemplated herein will not, result in a
violation of the Acquiring Fund's Articles of Incorporation or By-Laws or any
provision of any material agreement, indenture, instrument, contract, lease or
other undertaking to which the Acquiring Fund is a party or by which it or any
of its properties may be bound.
ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND
The obligations of the Acquiring Fund to consummate the transactions
provided for herein shall be subject to the following conditions:
7.1 All representations, covenants, and warranties of the Selling Fund
contained in this Agreement shall be true and correct in all material respects
as of the date hereof and as of the Closing Date, with the same force and effect
as if made on and as of such Closing Date. The Selling Fund shall have delivered
to the Acquiring Fund a certificate executed in the Selling Fund's name by the
Trust's President or Vice President and the Treasurer or Assistant Treasurer, in
form and substance satisfactory to the Acquiring Fund and dated as of such
Closing Date, to such effect and as to such other matters as the Acquiring Fund
shall reasonably request.
7.2 The Selling Fund shall have delivered to the Acquiring Fund a
statement of the Selling Fund's assets and liabilities, together with a list of
the Selling 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 of the Trust.
7.3 The Selling Fund shall have delivered to the Acquiring Fund a
certificate executed in the Selling Fund's name by the Trust's President or Vice
President and the Treasurer or Assistant Treasurer, in form and substance
satisfactory to the Acquiring Fund and dated as of such Closing Date, covering
the following points:
(a) The Selling Fund is a legally designated, separate series
of the Trust, and the Trust is a voluntary association, duly organized and
validly existing under the laws of the State of Delaware, which has the power to
own all of its properties and assets and to carry on its business as presently
conducted.
A-10
(b) The Trust is registered as an open-end investment company
under the 1940 Act, and such registration under the 1940 Act is in full force
and effect.
(c) This Agreement has been duly authorized, executed and
delivered by the Trust on behalf of the Selling Fund and, assuming due
authorization, execution and delivery of this Agreement by the Trust on behalf
of the Acquiring Fund, is a valid and binding obligation of the Selling Fund
enforceable against the Selling Fund in accordance with its terms, subject as to
enforcement, to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other laws relating to or affecting creditors' rights generally
and to general equity principles.
(d) Assuming that consideration of not less than the net asset
value of Selling Fund Shares has been paid, and assuming that such shares were
issued in accordance with the terms of the Selling Fund's registration
statement, or any amendment thereto, in effect at the time of such issuance, all
issued and outstanding shares of the Selling Fund are legally issued and fully
paid and non-assessable, and no Selling Fund Shareholder has any preemptive
rights with respect to the Selling Fund's shares.
(e) No consent, approval, authorization or order of any court
or governmental authority of the United States or the State of Delaware is
required for consummation by the Selling Fund of the transactions contemplated
herein, except as have been obtained under the 1933 Act, the 1934 Act and the
1940 Act.
(f) 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 Trust's Trust Instrument (assuming shareholder approval has
been obtained) or By-laws, or any provision of any material agreement,
indenture, instrument, contract, lease or other undertaking to which the Selling
Fund is a party or by which it or any of its properties may be bound.
ARTICLE VIII
FURTHER CONDITIONS PRECEDENT
The obligations of the Trust and the Acquiring Fund hereunder shall
also be subject to the following:
8.1 This Agreement and the transactions contemplated herein, with
respect to the Selling Fund, shall have been approved by the requisite vote of
the holders of the outstanding shares of the Selling Fund in accordance with
applicable law and the provisions of the Trust's Trust Instrument and By-Laws.
Notwithstanding anything herein to the contrary, neither Fund may waive the
conditions set forth in this Section 8.1.
8.2 On the Closing Date, the Commission shall not have issued an
unfavorable advisory report under Section 25(b) of the 1940 Act, or instituted
any proceeding seeking to enjoin the consummation of the transactions
contemplated by this Agreement under Section 25(c) of the 1940 Act. Furthermore,
no action, suit or other proceeding shall be threatened or 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.
A-11
8.3 All required 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 securities authorities), to
permit consummation of the transactions contemplated herein shall have been
obtained.
8.4 The Registration Statement shall have become effective under the
1933 Act, and no stop order suspending the effectiveness thereof shall have been
issued. To the best knowledge of the parties to this Agreement, no investigation
or proceeding for that purpose shall have been instituted or be pending,
threatened or contemplated under the 1933 Act.
8.5 The Selling Fund shall have declared and paid a dividend or
dividends which, together with all previous such dividends, shall have the
effect of distributing to its shareholders all of the Selling Fund's net
investment company taxable income for all taxable periods ending on or before
the Closing Date (computed without regard to any deduction for dividends paid),
if any, plus the excess of its interest income, if any, excludible from gross
income under Section 103(a) of the Code over its deduction disallowed under
Sections 265 and 171(a)(2) of the Code for all taxable years ending on or before
such Closing Date and all of its net capital gains realized in all taxable
periods ending on or before such Closing Date (after reduction for any capital
loss carry forward).
8.6 The parties shall have received an opinion of
PricewaterhouseCoopers LLP substantially to the effect that for federal income
tax purposes:
(a) The transfer of all of the Selling Fund's assets in
exchange for Acquiring Fund Shares and the assumption by the Acquiring Fund of
all liabilities of the Selling Fund (followed by the distribution of Acquiring
Fund Shares to the Selling Fund Shareholders in dissolution and complete
liquidation of the Selling Fund) will constitute a "reorganization" within the
meaning of Section 368(a) of the Code and the Acquiring Fund and the Selling
Fund will each be 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 Acquiring Fund
upon the receipt of the assets of the Selling Fund solely in exchange for
Acquiring Fund Shares and the assumption by the Acquiring Fund of the identified
liabilities of the Selling Fund.
(c) No gain or loss will be recognized by the Selling Fund
upon the transfer of the Selling Fund's assets to the Acquiring Fund in exchange
for Acquiring Fund Shares and the assumption by the Acquiring Fund of the
liabilities of the Selling Fund or upon the distribution of Acquiring Fund
Shares to Selling Fund Shareholders in exchange for such shareholders' shares of
the Selling Fund.
(d) No gain or loss will be recognized by the Selling Fund
Shareholders upon the exchange of their Selling Fund shares for Acquiring Fund
Shares in the Reorganization.
(e) The aggregate tax basis for Acquiring Fund Shares received
by each Selling Fund Shareholder pursuant to the Reorganization will be the same
as the aggregate tax basis of the Selling Fund shares exchanged therefor by such
shareholder. The holding period of Acquiring Fund Shares to be received by each
Selling Fund Shareholder will include the period
A-12
during which the Selling Fund shares exchanged therefor were held by such
shareholder, provided the Selling Fund shares are held as capital assets at the
time of the Reorganization.
(f) The tax basis of the Selling Fund's assets acquired by the
Acquiring Fund will be the same as the tax basis of such assets to the Selling
Fund immediately before the Reorganization. The holding period of the assets of
the Selling Fund in the hands of the Acquiring Fund will include the period
during which those assets were held by the Selling Fund (except where investment
activities of the Acquiring Fund reduce or eliminate a holding period).
Such opinion shall be based on customary assumptions and such
representations as PricewaterhouseCoopers LLP may reasonably request, and each
Fund will cooperate to make and certify the accuracy of such representations.
Notwithstanding anything herein to the contrary, neither Fund may waive the
conditions set forth in this Section 8.6.
ARTICLE IX
FEES AND EXPENSES
9.1 Berger Financial Group LLC, the investment adviser and
administrator to the Funds, will pay all expenses associated with the
Reorganization. Such expenses shall include, without limitation, in connection
with the Reorganization: (a) expenses associated with the preparation and filing
of the Proxy Materials; (b) postage; (c) printing; (d) accounting fees; (e)
legal fees incurred by each Fund; (f) solicitation costs of the transaction; and
(g) other related administrative or operational costs. Neither Fund will pay any
of these expenses.
9.2 Each party represents and warrants to the other that there is no
person or entity entitled to receive any broker's fees or similar fees or
commission payments in connection with the transactions provided for herein.
ARTICLE X
ENTIRE AGREEMENT; SURVIVAL OF WARRANTIES
10.1 The parties agree that neither party has made to the other party
any representation, warranty and/or covenant not set forth herein, and that this
Agreement constitutes the entire agreement between the parties.
10.2 The representations, warranties, and covenants contained in this
Agreement or in any document delivered pursuant to or in connection with this
Agreement shall not survive the consummation of the transactions contemplated
hereunder.
ARTICLE XI
TERMINATION
11.1 This Agreement may be terminated by the mutual agreement of the
Acquiring Fund and the Trust and such termination may be effected by the
parties' President or a Vice
A-13
President without further action by the parties' Boards. In addition, either the
Acquiring Fund or the Trust may at its option terminate this Agreement at or
before the Closing Date due to:
(a) a breach by the other of any representation, warranty, or
agreement contained herein to be performed at or before the Closing Date, if not
cured within 30 days;
(b) a condition precedent to the obligations of the
terminating party that has not been met and it reasonably appears that it will
not or cannot be met; or
(c) a determination by a party's Board that the consummation
of the transactions contemplated herein is not in the best interests of the
Acquiring Fund or the Trust, as appropriate, and notice given to the other party
hereto.
11.2 In the event of any such termination, in the absence of willful
default, there shall be no liability for damages on the part of either Fund, the
Acquiring Fund, the Trust, or their respective directors, trustees or officers.
ARTICLE XII
AMENDMENTS
12.1 This Agreement may be amended, modified, or supplemented in such
manner as may be mutually agreed upon in writing by the officers of the
Acquiring Fund and the Trust as specifically authorized by their respective
Boards; provided, however, that following the meeting of the Selling Fund
Shareholders called by the Trust's Board of Trustees pursuant to Section 5.2 of
this Agreement, no such amendment may have the effect of changing the provisions
for determining the number of Acquiring Fund Shares to be issued to the Selling
Fund Shareholders under this Agreement to the detriment of such shareholders
without their further approval.
ARTICLE XIII
HEADINGS; COUNTERPARTS; GOVERNING LAW; ASSIGNMENT;
LIMITATION OF LIABILITY
13.1 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.
13.2 This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original.
13.3 This Agreement shall be governed by and construed in accordance
with the laws of the State of Maryland, except Section 13.5 which shall be
governed by the laws of the State of Delaware.
13.4 This Agreement shall bind and inure to the benefit of the parties
hereto and their respective successors and assigns 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,
A-14
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.
13.5 It is expressly agreed that the obligations of the Selling Fund
hereunder shall not be binding upon any of the trustees, shareholders, nominees,
officers, agents, or employees of the Trust personally, but shall bind only the
trust property of the Selling Fund, as provided in the Trust Instrument of the
Trust. The execution and delivery of this Agreement have been authorized by the
Board of Trustees of the Trust on behalf of the Selling Fund and signed by
authorized officers of the Trust, acting as such. Neither the authorization by
such trustees nor the execution and delivery by such officers shall be deemed to
have been made by any of them individually or to impose any liability on any of
them personally, but shall bind only the trust property of the Selling Fund as
provided in the Trust's Trust Instrument.
A-15
IN WITNESS WHEREOF, the parties have duly executed this Agreement, all
as of the date first written above.
BERGER GROWTH FUND, INC.
By:
----------------------------------
Name: Jack R. Thompson
------------------------------
Title: President
------------------------------
ACKNOWLEDGED:
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
BERGER INVESTMENT PORTFOLIO
TRUST
By:
----------------------------------
Name: Jack R. Thompson
------------------------------
Title: President
------------------------------
ACKNOWLEDGED:
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
A-16
EXHIBIT B
MANAGEMENT'S DISCUSSION OF THE BERGER GROWTH FUND'S PERFORMANCE
MARKET CONDITIONS
The past fiscal year was one of the most difficult periods on record,
especially for growth-stock investors. There are two main reasons for this, in
our view. First, beginning in the fourth quarter of 2000, the economy slowed
suddenly, which affected the earnings growth of most companies. In general, the
fastest-growing were the hardest hit. Their revenue and earnings growth-rates
had been so high that they had farther to fall, and fall they did. Second, and
perhaps more important in our view, the valuations that had reflected those
extremely high growth rates shrank along with their slowing revenue and earnings
growth. This highly toxic combination brought growth-stock prices down even more
than the prices of the market in general.
FUND PERFORMANCE
The Berger Growth Fund (the "Fund") suffered from this combined effect,
declining in value by 59.38% for the fiscal year compared with a drop of 26.61%
for the S&P 500 Index(1) and a 45.37% decline for the Russell 3000 Growth
Index.(2) Clearly, these results have been very disappointing. This has been an
extremely painful year for growth investors and a humbling one for growth
portfolio managers. At Berger we did anticipate a slowdown in the economy, but
we did not foresee its magnitude or the duration of the decline. Given the
luxury of hindsight, I can say that I would like to have done some things
differently. As you might expect, as a portfolio manager, I am invested in the
Fund and am compensated on relative performance. While I certainly understand
that it is of little comfort to my fellow shareholders, my personal financial
situation is tied tightly to the Fund's performance and has been negatively
impacted.
Not surprisingly, technology had the largest negative impact on Fund
performance. We reduced technology holdings during the first half of the year in
response to slowing growth; however, it remains prominent. Our conviction in the
future of fundamentally sound technology companies remains strong, and our
changes were made to balance near-term fundamentals with longer-term
opportunities. The moves were part of our overall strategy to position the Fund
as well as possible for an anticipated economic recovery.
Some of the largest declines were among communications equipment
providers such as CIENA Corp., Nortel Networks Corp., Cisco Systems, Inc. and
Juniper Networks, Inc. as well as their fiber-optics-component suppliers, such
as JDS Uniphase Corp. and ONI Systems Corp. These stocks were sold during the
period based on our analysis that prospects for an anticipated re-acceleration
of growth had diminished too much to justify remaining invested in them.
However, those sales were accomplished too late to avoid a significant negative
performance impact, which we regret.
Elsewhere in technology, stock-price declines were also dramatic, but
we have remained invested and have even added to some positions recently on
weakness, for example, Siebel Systems, Inc., Veritas Software Corp., and
Verisign, Inc. Although these companies have also declined, we believe their
prospects for a reacceleration of growth are very good. Also, we believe they'll
be well-positioned for an anticipated recovery.
We increased healthcare holdings as the earnings growth of many
companies remained undisturbed by the economic slowdown. Healthcare is now the
largest of the Fund's sector weights. Because of their higher valuations and
near-term uncertainties, biotechnology holdings, particularly Genentech, Inc.
and Medarex, Inc. performed poorly. On the other hand, the Fund's major
B-1
pharmaceutical positions (Pfizer, Inc., Schering-Plough Corp., Pharmacia Corp.)
were down but less than the market. American Home Products Corp. actually posted
a gain. In our view, the future potential of these companies is undiminished and
so we have stayed with them. The Fund also benefited from new holdings in
healthcare services companies such as Tenet Healthcare Corp. and Health
Management Associates, Inc.
On the consumer side of the portfolio, the Fund did better. Restaurant
operators P.F. Chang's China Bistro, Inc. and Brinker International, Inc. were
modest contributors. Cable operators Cox Communications, Inc. and Comcast Corp.
were also positive, as was Liberty Media Corp. Conversely, radio broadcasters
Clear Channel Communications, Inc. and Hispanic Broadcasting, Inc. were down as
a result of a slowdown in advertising.
Energy was strong in the first half but weak in the second half. Strong
commodity prices and high levels of drilling activity drove the positive
performance in the first half, but those trends reversed in the second half as
the balance of supply and demand in the sector succumbed to the economic
slowdown. We scaled down the Fund's energy exposure, selling our positions in
Nabors Industries, Inc., and ENSCO International, Inc., among others. The Fund
ended the period with just three remaining positions in the energy sector,
Dynegy, Inc., Weatherford International, Inc. and Suncor Energy, Inc.
OUTLOOK
As we have navigated the difficulties and uncertainties of the past
fiscal year, we have focused on companies we believe are positioned for an
anticipated recovery in the economy and stock market. Companies that are gaining
share in this tough environment (like retailers Bed Bath & Beyond, Inc., and
Best Buy Co., Inc., for example), will emerge stronger than ever, in our view.
Our purchases and sales over the year reflect our judgment on the balance of
both long-term and near-term considerations.
Growth investing is very much about the future. As a nation our
confidence in the future has been shaken by the downward slide in the economy,
the events of September 11th and the weeks that have followed. During such
uncertain times, it can be difficult to feel as confident about the future as we
did even a year ago. Despite that, our faith in the spirit of the American
people, the strength of our economy and the resilience of American companies has
not been shaken.
Past performance is no guarantee of future results.
PERFORMANCE OVERVIEW
Growth of $10,000
[Graph]
<Table>
Berger Growth Fund.................... $18,160
S&P 500 Index......................... $33,023
Russell 3000 Growth Index............. $26,194
</Table>
AVERAGE ANNUAL TOTAL RETURNS AS OF SEPTEMBER 30, 2001
<Table>
One Year.............................. (59.38)%
Five Year............................. (0.73)%
Ten Year.............................. 6.15%
</Table>
Past performance is no guarantee of future results. Investment return
and principal value will fluctuate so that shares, when redeemed, may be worth
more or less than their original cost. Because of market volatility, the Fund's
current performance may be lower than the figures shown.
B-2
- ----------
(1) The S&P 500 Index is an unmanaged index, with dividends reinvested, that
consists of the common stocks of 500 publicly traded U.S. companies. It is a
generally recognized indicator used to measure overall performance of the U.S.
stock market. One cannot invest directly in an index.
(2) The Russell 3000 Growth Index, which includes reinvestment of dividends,
measures the performance of those Russell 3000 Index companies with higher
price-to-book ratios and higher forecasted growth values. The stocks in this
index are also members of either the Russell 1000 Growth or the Russell 2000
Growth indexes. The Index is unmanaged, and investors cannot actually make
investments in the Index.
B-3
STATEMENT OF ADDITIONAL INFORMATION
BERGER GROWTH FUND
210 UNIVERSITY BOULEVARD, SUITE 900
DENVER, COLORADO 80206
1-800-551-5849
This Statement of Additional Information is not a prospectus, but
should be read in conjunction with the Proxy Statement/Prospectus dated March 8,
2002 for the Special Meeting of Shareholders of the Berger Select Fund to be
held on May 8, 2002. Copies of the Proxy Statement/Prospectus may be obtained at
no charge by writing to the Berger Growth Fund, P.O. Box 219958, Kansas City,
Missouri 69121-9958, or by calling toll-free 1-800-551-5849. Unless otherwise
indicated, capitalized terms used herein and not otherwise defined have the same
meanings as are given to them in the Proxy Statement/Prospectus.
Further information about the Funds is contained in and incorporated by
reference to the Funds' Statement of Additional Information ("SAI") dated
January 29, 2002, insofar as it relates to the Funds participating in the
Reorganization. No other parts of the SAI are incorporated by reference herein.
The audited financial statements and related independent accountant's report for
the Funds contained in the Annual Report for the fiscal year ended September 30,
2001 are hereby incorporated herein by reference insofar as they relate to the
Funds participating in the Reorganization. No other parts of the Annual Report
are incorporated by reference herein.
The date of this Statement of Additional Information is March 8, 2002.
B-1
BERGER INVESTMENT PORTFOLIO TRUST
210 UNIVERSITY BOULEVARD, SUITE 900
DENVER, COLORADO 80206
BERGER SELECT FUND
PROXY FOR SPECIAL MEETING OF SHAREHOLDERS
MAY 8, 2002
THIS PROXY IS SOLICITED BY THE BOARD OF TRUSTEES OF
BERGER INVESTMENT PORTFOLIO TRUST
The undersigned Shareholder(s) of the Berger Select Fund (the "Fund"),
a series of the Berger Investment Portfolio Trust (the "Trust") hereby
appoint(s) ___________________________ (each with full power of substitution),
the proxy or proxies of the undersigned to attend the Special Meeting of
Shareholders (the "Special Meeting") of the Fund to be held on May 8, 2002, and
any adjournments thereof, to vote all of the shares of the Fund that the signer
would be entitled to vote if personally present at the Special Meeting and on
any other matters brought before the Special Meeting, all as set forth in the
Notice of Special Meeting of Shareholders. Said proxies are directed to vote or
refrain from voting pursuant to the Proxy Statement/Prospectus as checked below.
All properly executed proxies will be voted as directed herein by the
signing Shareholder(s). If no direction is given when the duly executed proxy is
returned, such shares will be voted FOR the Proposal. Please date, sign and
return promptly.
TO VOTE, MARK BLOCKS BELOW IN BLUE OR BLACK INK AS FOLLOWS: KEEP THIS
PORTION FOR YOUR RECORDS.
----------
THIS PROXY CARD IS VALID ONLY WHEN SIGNED AND DATED. DETACH AND RETURN
THIS PORTION ONLY.
THE BOARD OF TRUSTEES OF THE TRUST RECOMMENDS A VOTE "FOR" THE PROPOSAL
TO:
Proposal 1: To approve an Agreement and Plan of Reorganization providing for
the transfer of all of the assets and certain stated liabilities
of the Berger Select Fund to the Berger Growth Fund. This
transfer will be made in exchange for shares of the Berger Growth
Fund, and the shares so received will be distributed to
shareholders of the Berger Select Fund.
[ ] For [ ] Against [ ] Abstain
The undersigned acknowledges receipt with this proxy card of a copy of the
Notice of Special Meeting of Shareholders and the Proxy Statement/Prospectus.
Your signature(s) on this proxy card should be exactly as your name or names
appear on this proxy card. If the shares are held jointly, each holder should
sign. If signing is by attorney, executor, administrator, trustee or guardian,
please print your full title below your signature.
Dated: _____________, 2002
- -------------------------------------- ---------------------------------------
Signature Signature
PART C
OTHER INFORMATION
ITEM 15. INDEMNIFICATION.
Article XXVII, Section 7 of the Fund's Bylaws provides for
indemnification of certain persons acting on behalf of the Fund to the full
extent permitted by the Maryland General Corporation Law and the Investment
Company Act of 1940. In general, directors, officers and employees will be
indemnified against liability and against all expenses of litigation incurred by
them in connection with any claim, action, suit or proceeding (or settlement of
same) in which they become involved by virtue of their Fund office, unless their
conduct is determined to constitute willful misfeasance, bad faith, gross
negligence or reckless disregard of their duties, or unless it has been
determined that they have not acted in good faith in the reasonable belief that
their actions were in or not opposed to the best interests of the Fund or, in
the case of criminal proceedings, unless they had reasonable cause to believe
that their conduct was unlawful. The Fund also may advance money for these
expenses, provided that the director, officer or employee undertakes to repay
the Fund if his conduct is later determined to preclude indemnification. The
Fund has the power to purchase insurance on behalf of its directors, officers,
employees and agents, whether or not it would be permitted or required to
indemnify them for any such liability under the Bylaws or applicable law, and
the Fund has purchased and maintains an insurance policy covering such persons
against certain liabilities incurred in their official capacities.
ITEM 16. EXHIBITS
(1)(a) Articles of Incorporation dated March 9, 1966, is incorporated by
reference to Exhibit 23(a)-1 of Post-Effective Amendment No. 59
to the Registrant's Registration Statement on Form N-1A as filed
via EDGAR on November 25, 1998.
(1)(b) Articles of Amendment dated October 11, 1966, is incorporated by
reference to Exhibit 23(a)-2 of Post-Effective Amendment No. 59
to the Registrant's Registration Statement on Form N-1A as filed
via EDGAR on November 25, 1998.
(1)(c) Articles Supplementary dated October 24, 1991, is incorporated by
reference to Exhibit 23(a)-3 of Post-Effective Amendment No. 59
to the Registrant's Registration Statement on Form N-1A as filed
via EDGAR on November 25, 1998.
(1)(d) Articles Supplementary (7/93) is incorporated by reference to
Exhibit 23(a)-4 of Post-Effective Amendment No. 59 to the
Registrant's Registration Statement on Form N-1A as filed via
EDGAR on November 25, 1998.
(1)(e) Articles of Amendment (1/31/00) is incorporated by reference to
Exhibit 23(a)-5 of Post-Effective Amendment No. 65 to the
Registrant's Registration Statement on Form N-1A as filed via
EDGAR on January 26, 2001.
(2)(a) Bylaws (as amended through June 20, 1997) is incorporated by
reference to Exhibit No. 23(b) of Post-Effective Amendment No. 59
to the Registrant's Registration Statement on Form N-1A filed via
EDGAR on November 25, 1998.
(2)(b) Bylaws (as amended through January 31, 2000) is incorporated by
reference to Exhibit 23(b)-1 of Post-Effective Amendment No. 65
to the Registrant's Registration Statement on Form N-1A filed via
EDGAR on January 26, 2001.
C-1
(3) Not Applicable.
(4) Form of Agreement and Plan of Reorganization is filed herewith as
Exhibit A to Part A of this Registration Statement.
(5) Not Applicable.
(6)(a) Form of Investment Advisory Agreement is incorporated by
reference to Exhibit 23(d) of Post-Effective Amendment No. 59 to
the Registrant's Registration Statement on Form N-1A as filed via
EDGAR on November 25, 1998.
(6)(b) Form of Amendment to Investment Advisory Agreement is
incorporated by reference to Exhibit 23(d)-1 of Post-Effective
Amendment No. 62 to the Registrant's Registration Statement on
Form N-1A as filed via EDGAR on January 28, 2000.
(7) Form of Distribution Agreement between the Fund and Berger
Distributors, Inc., is incorporated by reference to Exhibit 6 of
Post-Effective Amendment No. 58 to Registrant's Registration
Statement on Form N-1A as filed via EDGAR on December 31, 1997.
(8) Not Applicable.
(9)(a) Form of Custody Agreement is incorporated by reference to Exhibit
No. 8 of Post-Effective Amendment No. 54 to the Registrant's
Registration Statement on Form N-1A as filed via EDGAR on
November 27, 1995.
(9)(b) Form of Assignment of Custody and Recordkeeping and Pricing Agent
Agreement is incorporated by reference to Exhibit 23(g)-1a of
Post-Effective Amendment No. 65 to the Registrant's Registration
Statement on Form N-1A as filed via EDGAR on January 26, 2001.
(9)(c) Form of Foreign Custody Agreement is incorporated by reference to
Exhibit 23(g)-2 of Post-Effective Amendment No. 65 to the
Registrant's Registration Statement on Form N-1A as filed via
EDGAR on January 26, 2001.
(9)(d) Form of Retirement Custody Agreement incorporated by reference to
Exhibit 23(g)-3 of Post-Effective Amendment No. 65 to the
Registrant's Registration Statement on Form N-1A as filed via
EDGAR on January 26, 2001.
(10) Form of Rule 12b-1 Plan, as amended, is incorporated by reference
to Exhibit 23(m) of Post-Effective Amendment No. 59 to the
Registrant's Registration Statement on Form N-1A as filed via
EDGAR on November 25, 1998.
(11) Not Applicable.
(12) Form of Opinion of PricewaterhouseCoopers LLP supporting the tax
matters and consequences to shareholders discussed in the proxy
statement/prospectus is filed herewith.
(13)(a) Form of Amended and Restated Administrative Services Agreement is
incorporated by reference to Exhibit 23(h)-1 of Post-Effective
Amendment No. 59 to the Registrant's Registration Statement on
Form N-1A as filed via EDGAR on November 25, 1998.
C-2
(13)(b) Form of Amendment to the Administration Services Agreement is
incorporated by reference to Exhibit 23(h)-1a of Post-Effective
Amendment No. 62 to the Registrant's Registration Statement on
Form N-1A as filed via EDGAR on January 28, 2000.
(13)(c) Form of Recordkeeping and Pricing Agreement is incorporated by
reference to Exhibit 23(h)-2 of Post-Effective Amendment No. 59
to the Registrant's Registration Statement on Form N-1A as filed
via EDGAR on November 25, 1998.
(13)(d) Form of Agency Agreement is incorporated by reference to Exhibit
23(h)-3 of Post-Effective Amendment No. 33 to the Registrant's
Registration Statement on Form N-1A as filed via EDGAR on
November 25, 1998.
(13)(e) Form of Assignment of Agency Agreement is incorporated by
reference to Exhibit 23(h)-3a of Post-Effective Amendment No. 65
to the Registrant's Registration Statement on Form N-1A as filed
via EDGAR on January 26, 2001.
(14) Consent of PricewaterhouseCoopers LLP is filed herewith.
(15) Not Applicable.
(16)(a) Powers of Attorney for Directors of the Registrant are
incorporated by reference to Post-Effective Amendment No. __ to
the Registrant's Registration Statement on Form N-1A as filed via
EDGAR on January 28, 2002.
(16)(b) Powers of Attorney for Directors of the Registrant are
incorporated by reference to Post-Effective Amendment No. 48 to
the Registrant's Registration Statement on Form N-1A as filed via
EDGAR on November 30, 1999.
(17)(a) Prospectus and SAI for the Berger Funds dated January 29, 2002,
are incorporated by reference to Post-Effective Amendment No. 66
to the Registrant's Registration Statement on Form N-1A as filed
via EDGAR on November 19, 2001.
(17)(b) Audited Financial Statements for the Funds dated September 30,
2001, are incorporated by reference to the Registrant's N-30D
filing as filed via EDGAR on November 21, 2001.
ITEM 17. UNDERTAKINGS.
(1) The undersigned registrant agrees that prior to any public
reoffering of the securities registered through the use of a prospectus which is
a part of this registration statement by any person or party who is deemed to be
an underwriter within the meaning of Rule 145(c) of the Securities Act, the
reoffering prospectus will contain the information called for by the applicable
registration form for reofferings by persons who may be deemed underwriters, in
addition to the information called for by the other items of the applicable
form.
(2) The undersigned registrant agrees that every prospectus that is
filed under paragraph (1) above will be filed as a part of an amendment to the
registration statement and will not be used until the amendment is effective,
and that, in determining any liability under the 1933 Act, each post-effective
amendment shall be deemed to be a new registration statement for the securities
offered therein, and the offering of the securities at that time shall be deemed
to be the initial bona fide offering of them.
C-3
SIGNATURES
As required by the Securities Act of 1933, this Registration Statement has been
signed on behalf of the registrant, in the City and County of Denver, the State
of Colorado, on the 30th day of January, 2002.
BERGER GROWTH FUND, INC.
By /s/ Jack R. Thompson
------------------------------
Jack R. Thompson, 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/ Jack R. Thompson President (Principal Executive January 30, 2002
- ----------------------------- Officer) and Director ----------------
Jack R. Thompson Date
/s/ Brian S. Ferrie Vice President (Principal Financial January 30, 2002
- ----------------------------- Officer) ----------------
Brian S. Ferrie Date
/s/ John A. Paganelli Vice President and Treasurer January 30, 2002
- ----------------------------- (Principal Accounting Officer) ----------------
John A. Paganelli Date
Dennis E. Baldwin* Director January 30, 2002
- ----------------------------- ----------------
Dennis E. Baldwin Date
Katherine A. Cattanach* Director January 30, 2002
- ----------------------------- ----------------
Katherine A. Cattanach Date
Paul R. Knapp* Director January 30, 2002
- ----------------------------- ----------------
Paul R. Knapp Date
Harry T. Lewis, Jr.* Director January 30, 2002
- ----------------------------- ----------------
Harry T. Lewis, Jr. Date
Michael Owen* Director January 30, 2002
- ----------------------------- ----------------
Michael Owen Date
William Sinclaire* Director January 30, 2002
- ----------------------------- ----------------
William Sinclaire Date
Albert C. Yates* Director January 30, 2002
- ----------------------------- ----------------
Albert C. Yates Date
*By /s/ Jack R. Thompson
- ------------------------
Attorney-in-fact
</Table>
C-4
EXHIBIT INDEX
<Table>
<Caption>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
EX-99.12 Form of Opinion of PricewaterhouseCoopers LLP supporting the
tax matters and consequences to shareholders discussed in the
proxy statement/prospectus.
EX-99.14 Consent of PricewaterhouseCoopers LLP.
</Table>