AGREEMENT AND PLAN OF REORGANIZATION
BY AND BETWEEN
AMERICAN CENTURY INVESTMENT TRUST
and
AMERICAN CENTURY MUTUAL FUNDS, INC.
TABLE OF CONTENTS
1. Transfer of Assets of High-Yield......................................1
2. Liquidating Distribution and Termination of High-Yield................2
3. Valuation Time........................................................3
4. Certain Representations, Warranties and Agreements of ACMF............3
5. Certain Representations, Warranties and Agreements of ACIT............6
6. Shareholder Action on Behalf of High-Yield............................7
7. Registration Statement and Proxy Solicitation Materials...............8
8. Effective Time of the Reorganization..................................8
9. ACIT's Conditions.....................................................9
10. ACMF's Conditions....................................................10
11. Tax Documents........................................................11
12. Further Assurances...................................................11
13. Termination of Representations and Warranties........................12
14. Termination of Agreement.............................................12
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 __________, 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") to 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'S 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
Hig-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 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. ACGIT 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
