AGREEMENT AND PLAN OF REORGANIZATION
BY AND BETWEEN
AMERICAN CENTURY INVESTMENT TRUST
and
AMERICAN CENTURY MUTUAL FUNDS, INC.
TABLE OF CONTENTS
Preamble........................................................................................1
1. Transfer of Assets of Old High-Yield............................................................1
2. Liquidating Distribution and Termination of Old High-Yield......................................2
3. Valuation Time..................................................................................3
4. Certain Representations, Warranties and Agreements of ACMF......................................3
5. Certain Representations, Warranties and Agreements of ACIT......................................5
6. Shareholder Action on Behalf of Old High-Yield..................................................7
7. Registration Statement and Proxy Solicitation Materials.........................................8
8. Effective Time of the Reorganization............................................................8
9. ACIT Conditions.................................................................................8
10. ACMF Conditions................................................................................10
11. Tax Documents..................................................................................11
12. Further Assurances.............................................................................11
13. Termination of Representations and Warranties..................................................11
14. Termination of Agreement.......................................................................11
15. Amendment and Waiver...........................................................................12
16. Governing Law..................................................................................13
17. Successors and Assigns.........................................................................13
18. Beneficiaries..................................................................................13
19. ACIT Liability.................................................................................13
20. ACMF Liability.................................................................................13
21. Notices........................................................................................14
22. Expenses.......................................................................................14
23. Entire Agreement...............................................................................14
24. Counterparts...................................................................................14
AGREEMENT AND PLAN OF REORGANIZATION
AGREEMENT AND PLAN OF REORGANIZATION made as of August 8, 2001 by and
between American Century Investment Trust, a Massachusetts business trust
("ACIT"), and American Century Mutual Funds, Inc., a Maryland corporation
("ACMF").
WHEREAS, the parties desire that all of the assets and liabilities of the
High-Yield portfolio of ACMF ("Old High-Yield") be transferred to, and be
acquired and assumed by, the High-Yield portfolio of ACIT ("New High-Yield") in
exchange for shares of New High-Yield which shall thereafter be distributed by
ACMF to the holders of shares of Old High-Yield, all as described in this
Agreement (the "Reorganization");
WHEREAS, the parties intend that the transfer of assets, assumption of
liabilities and distribution of shares in Old High-Yield be treated as a
tax-free reorganization under Section 368(a)(1)(F) of the Internal Revenue Code
of 1986, as amended (the "Code"); and
WHEREAS, the parties intend that in connection with the Reorganization, Old
High-Yield shall be terminated and de-registered as described in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth and subject to the terms and conditions hereof, and
intending to be legally bound hereby, ACMF and ACIT agree as follows:
1. TRANSFER OF ASSETS OF OLD HIGH-YIELD.
1.1. At the Effective Time (as defined in Section 8), ACMF shall transfer
and convey to ACIT, on behalf of New High-Yield, all property of every
description, and all interests, rights, privileges and powers of Old High-Yield
(such assets, the "Old High-Yield Assets"). Simultaneously, ACIT shall, on
behalf of New High-Yield, accept the Old High-Yield Assets and assume all
liabilities, whether accrued, absolute, contingent or otherwise, of Old
High-Yield (the "Old High-Yield Liabilities"). As a result, at and after the
Effective Time: (i) all assets of Old High-Yield shall become and be the assets
of New High-Yield; and (ii) all liabilities of Old High-Yield shall attach to
New High-Yield as aforesaid and may thenceforth be enforced against New
High-Yield to the extent as if the same had been incurred by it. Without
limiting the generality of the foregoing, the Old High-Yield Assets shall
include all property and assets of any nature whatsoever, including without
limitation, all cash, cash equivalents, securities, other investments, claims
and receivables (including dividend and interest receivables) owned by Old
High-Yield, and any deferred or prepaid expenses shown as an asset on Old
High-Yield's books at the Effective Time, and all good will, other intangible
property and books and records belonging to Old High-Yield. Recourse by any
person for the Old High-Yield Liabilities assumed by New High-Yield shall, at
and after the Effective Time, be limited to New High-Yield.
1.2. In exchange for the transfer of the Old High-Yield Assets and the
assumption of the Old High-Yield Liabilities, ACIT shall simultaneously issue at
the Effective Time to Old High-Yield a number of full and fractional shares (to
the third decimal place) of New High-Yield, all determined and adjusted as
provided in this Agreement. The number of shares of New High-Yield so issued
will have an aggregate net asset value equal to the value of the Old High-Yield
Assets, less the Old High-Yield Liabilities, that are represented by shares of
Old High-Yield, the holders of which shall receive shares of New High-Yield, all
determined and adjusted as provided in this Agreement.
1.3. The net asset values of shares of New High-Yield and of Old High-Yield
shall be determined as of the Valuation Time, as defined in Section 3.
1.4. The net asset value of shares of New High-Yield shall be computed in
the manner set forth in New High-Yield's then-current prospectus under the
Securities Act of 1933, as amended (the "1933 Act"). The net asset value of the
Old High-Yield Assets to be transferred by ACMF shall be computed by ACMF and
shall be subject to adjustment by the amount, if any, agreed to by ACIT and
ACMF. In determining the value of the securities transferred by Old High-Yield
to New High-Yield, each security shall be priced in accordance with the policies
and procedures of ACIT as described in its then-current prospectus and statement
of additional information and adopted by ACIT's Board of Trustees, which are and
shall be consistent with the policies now in effect for ACMF. Price quotations
and the security characteristics relating to establishing such quotations shall
be determined by ACIT, provided that such determination shall be subject to the
approval of ACMF.
2. LIQUIDATING DISTRIBUTION AND TERMINATION OF OLD HIGH-YIELD.
Immediately after the Effective Time, Old High-Yield shall distribute in
the complete liquidation pro rata to the record holders of its shares at the
Effective Time the shares of New High-Yield to be received by the record holders
of Old High-Yield. In accordance with instructions it receives from ACMF, ACIT
shall record on its books the ownership of shares of New High-Yield by the
record holders of shares of Old High-Yield. All of the issued and outstanding
shares of Old High-Yield shall be redeemed and canceled on the books of ACMF at
the Effective Time and shall thereafter represent only the right to receive the
shares of New High-Yield, and Old High-Yield's transfer books shall be closed
permanently. As soon as practicable after the Effective Time, ACMF shall take
all steps as shall be necessary and proper to effect the dissolution of Old
High-Yield under federal and state law. After the Effective Time, ACMF shall not
conduct any business with respect to Old High-Yield except in connection with
Old High-Yield's liquidation and dissolution.
3. VALUATION TIME.
Subject to Section 1.4 hereof, the Valuation Time for the Reorganization
shall be on such date as may be agreed by the duly authorized officers of both
parties hereto.
4. CERTAIN REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF ACMF.
ACMF, on behalf of itself and Old High-Yield, represents and warrants to,
and agrees with, ACIT as follows:
4.1. ACMF is a Maryland corporation duly created pursuant to its Articles
of Incorporation for the purpose of acting as a management investment company
under the 1940 Act and is validly existing under the laws of, and duly
authorized to transact business in, the State of Maryland. Old High-Yield is
registered with the Securities and Exchange Commission (the "SEC") as an
open-end management investment company under the Investment Company Act of 1940,
as amended (the "1940 Act"), and such registration is in full force and effect.
4.2. ACMF has power to own all of its properties and assets and, subject to
the approval of shareholders referred to herein, to carry out and consummate the
transactions contemplated hereby, and has all necessary federal, state and local
authorizations to carry on its business as now being conducted and to consummate
the transactions contemplated by this Agreement.
4.3. This Agreement has been duly authorized, executed and delivered by
ACMF, and represents ACMF's valid and binding contract, enforceable in
accordance with its terms, subject as to enforcement to bankruptcy, insolvency,
reorganization, arrangement, moratorium, and other similar laws of general
applicability relating to or affecting creditors' rights and to general
principles of equity. The execution and delivery of this Agreement does not and
will not, and the consummation of the transactions contemplated by this
Agreement will not, violate ACMF's Articles of Incorporation, By-laws, or any
agreement or arrangement to which it is a party or by which it is bound.
4.4. Old High-Yield has elected to qualify and has qualified as a
"regulated investment company" under Subtitle A, Chapter 1, Subchapter M, Part I
of the Code, as of and since its first taxable year; has been a regulated
investment company at all times since the end of its first taxable year when it
so qualified; and qualifies and shall continue to qualify as a regulated
investment company until the Effective Time.
4.5. All federal, state, local and foreign income, profits, franchise,
sales, withholding, customs, transfer and other taxes, including interest,
additions to tax and penalties (collectively, "Taxes") relating to the Old
High-Yield Assets or properly shown to be due on any return filed by Old
High-Yield with respect to taxable periods ending on or prior to, and the
portion of any interim period up to, the date hereof have been fully and timely
paid or provided for; and there are no levies, liens, or other encumbrances
relating to Taxes existing, threatened or pending with respect to the Old
High-Yield Assets.
4.6. The financial statements of Old High-Yield for the fiscal year ended
October 31, 2000, audited by Deloitte & Touche LLP, independent auditors, copies
of which have been previously furnished to ACIT, present fairly the financial
position of Old High-Yield as of October 31, 2000 and the results of its
operations for the year then ending, in conformity with generally accepted
accounting principles.
4.7. At both the Valuation Time and the Effective Time, there shall be no
known liabilities of Old High-Yield, whether accrued, absolute, contingent or
otherwise, not reflected in the net asset value per share of its outstanding
shares.
4.8. There are no legal, administrative or other proceedings pending or, to
ACMF's knowledge threatened, against ACMF or Old High-Yield which could result
in liability on the part of Old High-Yield.
4.9. Subject to the approval of shareholders, at both the Valuation Time
and the Effective Time, ACMF shall have full right, power and authority to
assign, transfer and deliver the Old High-Yield Assets and, upon delivery and
payment for the Old High-Yield Assets as contemplated herein, New High-Yield
shall acquire good and marketable title thereto, free and clear of all liens and
encumbrances, and subject to no restrictions on the ownership or transfer
thereof (except as imposed by federal or state securities laws).
4.10. No consent, approval, authorization or order of any court or
governmental authority is required for the consummation by ACMF of the
transactions contemplated by this Agreement, except such as may be required
under the 1933 Act, the Securities Exchange Act of 1934, as amended (the "1934
Act"), the 1940 Act, the rules and regulations under those Acts, and state
securities laws.
4.11. Insofar as the following relate to ACMF, the registration statement
filed by ACIT on Form N-14 relating to the shares of New High-Yield that will be
registered with the SEC pursuant to this Agreement, which, without limitation,
shall include a proxy statement of ACMF and the prospectus of ACIT with respect
to the transactions contemplated by this Agreement, and any supplement or
amendment thereto or to the documents contained or incorporated therein by
reference (the "N-14 Registration Statement"), on the effective date of the N-14
Registration Statement, at the time of any shareholders' meeting referred to
herein and at the Effective Time: (i) shall comply in all material respects with
the provisions of the 1933 Act, the 1934 Act and the 1940 Act, the rules and
regulations thereunder, and state securities laws, and (ii) shall not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that the representations and warranties in this
subsection shall apply only to statements in or omissions from the N-14
Registration Statement made in reliance upon and in conformity with information
furnished by ACMF for use in the N-14 Registration Statement.
4.12. All of the issued and outstanding shares of Old High-Yield have been
duly and validly issued, are fully paid and non-assessable, and were offered for
sale and sold in conformity with all applicable federal and state securities
laws, and no shareholder of Old High-Yield has any preemptive right of
subscription or purchase in respect of such shares.
5. CERTAIN REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF ACIT.
ACIT, on behalf of itself and New High-Yield, represents and warrants to,
and agrees with, ACMF as follows:
5.1. ACIT is a Massachusetts business trust duly created pursuant to an
Agreement and Declaration of Trust for the purpose of acting as a management
investment company under the 1940 Act and is validly existing under the laws of,
and duly authorized to transact business in, the Commonwealth of Massachusetts,
New High-Yield is registered with the SEC as an open-end management investment
company under the 1940 Act and such registration is in full force and effect.
5.2. ACIT has the power to own all of its properties and assets and to
carry out and consummate the transactions contemplated herein, and has all
necessary federal, state and local authorizations to carry on its business as
now being conducted and to consummate the transactions contemplated by this
Agreement.
5.3. This Agreement has been duly authorized, executed and delivered by
ACIT, and represents ACIT's valid and binding contract, enforceable in
accordance with its terms, subject as to enforcement to bankruptcy, insolvency,
reorganization, arrangement, moratorium, and other similar laws of general
applicability relating to or affecting creditors' rights and to general
principles of equity. The execution and delivery of this Agreement did not, and
the consummation of the transactions contemplated by this Agreement will not,
violate ACIT's Agreement and Declaration of Trust or By-laws or any agreement or
arrangement to which it is a party or by which it is bound.
5.4. New High-Yield intends to qualify as a "regulated investment company"
under Subtitle A, Chapter 1, Subchapter M, Part I of the Code.
5.5. As a new fund, New High-Yield has no audited financial statements for
its most recent fiscal year.
5.6. At both the Valuation Time and the Effective Time, there shall be no
known liabilities of New High-Yield whether accrued, absolute, contingent or
otherwise, not reflected in the net asset value per share of its shares to be
issued pursuant to this Agreement.
5.7. There are no legal, administrative or other proceedings pending or, to
its knowledge, threatened against ACIT or New High-Yield that could result in
liability on the part of ACIT or New High-Yield.
5.8. No consent, approval, authorization or order of any court or
governmental authority is required for the consummation by ACIT of the
transactions contemplated by this Agreement, except such as may be required
under the 1933 Act, the 1934 Act, the 1940 Act, the rules and regulations under
those Acts, and state securities laws.
5.9. Insofar as the following relate to ACIT, the N-14 Registration
Statement on its effective date, at the time of any shareholders' meetings
referred to herein and at the Effective Time: (i) shall comply in all material
respects with the provisions of the 1933 Act, the 1934 Act and the 1940 Act, the
rules and regulations thereunder, and state securities laws, and (ii) shall not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that the representations and warranties in this
subsection shall apply only to statements in or omissions from the N-14
Registration Statement made in reliance upon and in conformity with information
furnished by ACIT for use in the N-14 Registration Statement.
5.10. The shares of New High-Yield to be issued and delivered to Old
High-Yield for the account of record holders of shares of Old High-Yield
pursuant to the terms hereof shall have been duly authorized as of the Effective
Time and, when so issued and delivered, shall be registered under the 1933 Act,
duly and validly issued, fully paid and non-assessable, and no shareholder of
ACIT shall have any preemptive right of subscription or purchase in respect
thereto.
6. SHAREHOLDER ACTION ON BEHALF OF OLD HIGH-YIELD.
6.1. As soon as practicable after the effective date of the N-14
Registration Statement, but in any event prior to the Effective Time and as a
condition to the Reorganization, the Board of Directors of ACMF shall call, and
ACMF shall hold, a meeting of the shareholders of Old High-Yield for the purpose
of considering and voting upon:
6.1.1. Approval of this Agreement and the transactions contemplated hereby,
including, without limitation:
6.1.1.1. The transfer of the Old High-Yield Assets to New High-Yield and
the assumption by New High-Yield of the Old High-Yield Liabilities, in exchange
for shares of New High-Yield, as described in this Agreement; and
6.1.1.2. The liquidation of Old High-Yield through the distribution to its
record holders of shares of the shares of New High-Yield as described in this
Agreement; and
6.1.2. Such other matters as may be determined by the Board of Directors or
authorized officers of the parties.
6.2. Approval of this Reorganization Agreement by the shareholders of Old
High-Yield shall constitute the waiver of the application of any fundamental
policy of Old High-Yield that might be deemed to prevent them from taking the
actions necessary to effectuate the Reorganization as described, and such
policies, if any, shall be deemed to have been amended accordingly.
7. REGISTRATION STATEMENT AND PROXY SOLICITATION MATERIALS.
The N-14 Registration Statement under the 1933 Act, including the combined
prospectus/proxy statement contained therein under the 1934 Act and 1940 Act
proxy rules, shall be filed with the SEC as promptly as practicable, ACIT and
ACMF have cooperated and shall continue to cooperate with each other, and have
furnished and shall continue to furnish each other with the information relating
to themselves that is required by the 1933 Act, the 1934 Act, the 1940 Act, the
rules and regulations under each of those Acts and state securities laws, to be
included in the N-14 Registration Statement.
8. EFFECTIVE TIME OF THE REORGANIZATION.
Delivery of the Old High-Yield Assets and the shares of New High-Yield to
be issued pursuant to Section 1 and the liquidation of Old High-Yield pursuant
to Section 2 shall occur at the opening of business on the next business day
following the Valuation Time, or on such other date, and at such place and time,
as may be determined by the President or any Vice President of each party
hereto. The date and time at which such actions are taken are referred to herein
as the "Effective Time." To the extent any of the Old High-Yield Assets are, for
any reason, not transferred at the Effective Time, ACMF shall cause such Old
High-Yield Assets to be transferred in accordance with this Agreement at the
earliest practicable date thereafter.
9. ACIT CONDITIONS.
The obligations of ACIT hereunder with respect to New High-Yield shall be
subject to the following conditions precedent:
9.1. This Agreement and the transactions contemplated by this Agreement
shall have been approved by the shareholders of Old High-Yield, in the manner
required by law.
9.2. ACMF shall have duly executed and delivered to ACIT such bills of
sale, assignments, certificates and other instruments of transfer ("Transfer
Documents") as may be necessary or desirable to transfer all right, title and
interest of ACMF and Old High-Yield in and to the Old High-Yield Assets. The Old
High-Yield Assets shall be accompanied by all necessary state stock transfer
stamps or cash for the appropriate purchase price therefor.
9.3. All representations and warranties made in this Agreement shall be
true and correct in all material respects as if made at and as of the Valuation
Time and the Effective Time. As of the Valuation Time and the Effective Time,
there shall have been no material adverse change in the financial position of
Old High-Yield since October 31, 2000, other than those changes incurred in the
ordinary course of business as an investment company. 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.
9.4. ACIT shall have received a tax opinion acceptable to ACMF, addressed
to ACIT and ACMF in a form reasonably satisfactory to them and dated the
Effective Time, substantially to the effect that for federal income tax
purposes: (i) the transfer of the Old High-Yield Assets hereunder, and the
assumption by New High-Yield of the Old High-Yield Liabilities, in exchange for
shares of New High-Yield, and the distribution of said shares to the
shareholders of Old High-Yield, as provided in this Agreement, will constitute a
reorganization within the meaning of Section 368 of the Code, and Old High-Yield
and New High-Yield will each be considered "a party to a reorganization" within
the meaning of Section 368(b) of the Code; (ii) no gain or loss will be
recognized by Old High-Yield as a result of such transaction; (iii) no gain or
loss will be recognized by New High-Yield as a result of such transaction; (iv)
no gain or loss will be recognized by the shareholders of Old High-Yield on the
distribution to them by Old High-Yield of shares of New High-Yield in exchange
for their shares of Old High-Yield; (v) the aggregate basis of New High-Yield
shares received by each shareholder of Old High-Yield will be the same as the
aggregate basis of the shareholder's Old High-Yield shares immediately prior to
the transaction; (vi) the basis of the Old High-Yield Assets to New High-Yield
will be the same as the basis of the Old High-Yield Assets in the hands of Old
High-Yield immediately prior to the exchange; (vii) a shareholder's holding
period for New High-Yield shares will be determined by including the period for
which the shareholder held the shares of Old High-Yield exchanged therefor,
provided that the shareholder held such shares of Old High-Yield as a capital
asset; and (viii) the holding period of New High-Yield with respect to the Old
High-Yield Assets will include the period for which the Old High-Yield Assets
were held by Old High-Yield.
9.5. The SEC shall not have issued any unfavorable advisory report under
Section 25(b) of the 1940 Act nor instituted any proceeding seeking to enjoin
consummation of the transactions contemplated by this Agreement under Section
25(c) of the 1940 Act.
9.6. The N-14 Registration Statement shall have become effective under the
1933 Act and no stop order suspending such effectiveness shall have been
instituted or, to the knowledge of ACIT, contemplated by the SEC, and the
parties shall have received all permits and other authorizations necessary under
state securities laws to consummate the transactions contemplated by this
Agreement.
9.7. The President or a Vice President of ACMF shall have certified that
ACMF has performed and complied in all material respects with each of its
agreements and covenants required by this Agreement to be performed or complied
with by it prior to or at the Valuation Time and the Effective Time.
10. ACMF CONDITIONS.
The obligations of ACMF hereunder with respect to Old High-Yield shall be
subject to the following conditions precedent:
10.1. This Agreement and the transactions contemplated by this Agreement
shall have been approved by the shareholders of Old High-Yield in the manner
required by law.
10.2. All representations and warranties of ACIT made in this Agreement
shall be true and correct in all material respects as if made at and as of the
Valuation Time and the Effective Time. As of the Valuation Time and the
Effective Time, there shall have been no material adverse change in the
financial condition of New High-Yield since August 20, 2001, other than those
changes incurred in the ordinary course of business as an investment company. 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.
10.3. ACMF shall have received a tax opinion acceptable to ACMF, addressed
to ACIT and ACMF in a form reasonably satisfactory to them and dated the
Effective Time, with respect to the matters specified in Section 9.4.
10.4. The N-14 Registration Statement shall have become effective under the
1933 Act and no stop order suspending such effectiveness shall have been
instituted, or to the knowledge of ACIT, contemplated by the SEC, and the
parties shall have received all permits and other authorizations necessary under
state securities laws to consummate the transactions contemplated by this
Agreement.
10.5. ACMF shall not sell or otherwise dispose of any shares of New
High-Yield to be received in the transactions contemplated herein, except in
distribution to its shareholders as contemplated herein.
10.6. The SEC shall not have issued any unfavorable advisory report under
Section 25(b) of the 1940 Act nor instituted any proceeding seeking to enjoin
consummation of the transactions contemplated by this Agreement under Section
25(c) of the 1940 Act.
10.7. The President or a Vice President of ACIT shall have certified that
ACIT has performed and complied in all material respects with each of its
agreements and covenants required by this Agreement to be performed or complied
with by it prior to or at the Valuation Time and the Effective Time.
11. TAX DOCUMENTS.
ACMF shall deliver to ACIT at the Effective Time confirmations or other
adequate evidence as to the adjusted tax basis of the Old High-Yield Assets then
delivered to New High-Yield in accordance with the terms of this Agreement.
12. FURTHER ASSURANCES.
Subject to the terms and conditions herein provided, each of the parties
hereto shall use its best efforts to take, or cause to be taken, such action, to
execute and deliver, or cause to be executed and delivered, such additional
documents and instruments, and to do, or cause to be done, all things necessary,
proper or advisable under the provisions of this Agreement and under applicable
law to consummate and make effective the transactions contemplated by this
Agreement.
13. TERMINATION OF REPRESENTATIONS AND WARRANTIES.
The representations and warranties of the parties set forth in this
Agreement shall terminate at the Effective Time.
14. TERMINATION OF AGREEMENT.
14.1. This Agreement may be terminated prior to the Effective Time by the
Board of Trustees of ACIT or the Board of Directors of ACMF, as provided below:
14.1.1. By ACIT if the conditions set forth in Section 9 are not satisfied
as specified in said Section;
14.1.2. By ACMF if the conditions set forth in Section 10 are not satisfied
as specified in said Section;
14.1.3. By the mutual consent of the parties.
14.2. If a party terminates this Agreement because one or more of its
conditions precedent have not been fulfilled, or if this Agreement is terminated
by mutual consent, this Agreement will become null and void without any
liability of either party or any of their investment portfolios to the other;
provided, however, that if such termination is by ACIT pursuant to Section
14.1.1 as a result of a breach by ACMF of any of its representations, warranties
or covenants in this Agreement, or such termination is by ACMF pursuant to
Section 14.1.2 as a result of a breach by ACIT of any of its representations,
warranties or covenants in this Agreement, nothing herein shall affect the
non-breaching party's right to damages on account of such other party's breach.
15. AMENDMENT AND WAIVER.
At any time prior to or (to the fullest extent permitted by law) after
approval of this Agreement by the shareholders of ACMF, (a) the parties hereto
may, by written agreement authorized by their respective Board of Directors or
Trustees, as the case may be, or their respective Presidents or any Vice
Presidents, and with or without the approval of their shareholders, amend any of
the provisions of this Agreement, and (b) either party may waive any breach by
the other party or the failure to satisfy any of the conditions to its
obligations (such waiver to be in writing and executed by the President or Vice
President of the waiving party with or without the approval of such party's
shareholders).
16. GOVERNING LAW.
This Agreement and the transactions contemplated hereby shall be governed,
construed and enforced in accordance with the laws of Massachusetts without
giving effect to the conflicts of law principles otherwise applicable therein.
17. SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon the respective successors and
permitted assigns of the parties hereto. This Agreement and the rights,
obligations and liabilities hereunder may not be assigned by either party
without the consent of the other party.
18. BENEFICIARIES.
Nothing contained in this Agreement shall be deemed to create rights in
persons not parties hereto, other than the successors and permitted assigns of
the parties.
19. ACIT LIABILITY.
19.1. The name "American Century Investment Trust" and "Trustees of
American Century Investment Trust" refer respectively to the trust created and
the trustees, as trustees but not individually or personally, acting from time
to time under an Amended and Restated Agreement and Declaration of Trust dated
as of March 9, 1998, as amended, which is hereby referred to and copies of which
are on file at the office of the State Secretary of the Commonwealth of
Massachusetts and at the principal office of ACIT. The obligations of ACIT
entered into in the name or on behalf thereof by any of its trustees,
representatives or agents are made not individually, but in such capacities, and
are not binding upon any of the trustees, shareholders or representatives of
ACIT personally, but bind only the trust property, and all persons dealing with
any portfolio of ACIT must look solely to the trust property belonging to such
portfolio for the enforcement of any claims against ACIT.
19.2. Both parties specifically acknowledge and agree that any liability of
ACIT under this Agreement with respect to New High-Yield, or in connection with
the transactions contemplated herein with respect to New High-Yield, shall be
discharged only out of the assets of New High-Yield and that no other portfolio
of ACIT, if any, shall be liable with respect thereto.
20. ACMF LIABILITY.
Both parties specifically acknowledge and agree that any liability of ACMF
under this Agreement with respect to Old High-Yield or in connection with the
transactions contemplated herein with respect to Old High-Yield, shall be
discharged only out of the Old High-Yield Assets and that no other portfolio of
ACMF shall be liable with respect thereto.
21. NOTICES.
All notices required or permitted herein shall be in writing and shall be
deemed to be properly given when delivered personally or by telecopier to the
party entitled to receive the notice or when sent by certified or registered
mail, postage prepaid, or delivered to a nationally recognized overnight courier
service, in each case properly addressed to the party entitled to receive such
notice at the address or telecopier number stated below or to such other address
or telecopier number as may hereafter be furnished in writing by notice
similarly given by one party to the other party hereto:
If to American Century Investment Trust or American Century Mutual Funds,
Inc.:
Xxxxxxx X. Xxxxxxxxxxx
0000 Xxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
22. EXPENSES.
Each party represents to the other that its expenses incurred in connection
with the Reorganization will be borne by American Century Investment Management,
Inc. or one or more of its affiliates.
23. ENTIRE AGREEMENT.
This Agreement embodies the entire agreement and understanding of the
parties hereto and supersedes any and all prior agreements, arrangements and
understandings relating to matters provided for herein.
24. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of
which, when executed and delivered shall be deemed to be an original, but all of
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their duly authorized officers designated below as of the date first
written.
AMERICAN CENTURY INVESTMENT TRUST
By:/s/Xxxxxxx X. Xxxxxxxxxxx
Xxxxxxx X. Xxxxxxxxxxx
Vice President
ATTEST:/s/Xxxxxxxxx X. Xxxxxxxx
Xxxxxxxxx X. Xxxxxxxx
AMERICAN CENTURY MUTUAL FUNDS, INC.
By:/s/Xxxxxxx X. Xxxxxxxxxxx
Xxxxxxx X. Xxxxxxxxxxx
Vice President
ATTEST:/s/Xxxxxxxxx X. Xxxxxxxx
Xxxxxxxxx X. Xxxxxxxx
