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
00.Xxx 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
