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EXHIBIT 8(d)(2)
AMENDMENT #1
TO
FUND PARTICIPATION AGREEMENT
BETWEEN
XXXXXX MUTUAL FUNDS CORP.
AND
THE VARIABLE ANNUITY LIFE INSURANCE COMPANY
WHEREAS, Xxxxxx Mutual Funds Corp. ("Xxxxxx") and The Variable Annuity
Life Insurance Company ("VALIC") entered into a Fund Participation Agreement
("Agreement") on May 16, 1996; and
WHEREAS, Xxxxxx and VALIC desire to describe with more specificity
Fund proxy solicitation procedures as provided for in this Agreement; and
WHEREAS, Pursuant to Section 21 of the Agreement, the Agreement may
only be amended upon written agreement of the parties thereto.
NOW THEREFORE, the Agreement is amended as follows:
1. Section 13 of the Agreement as set forth below is deleted in
its entirety.
VALIC will distribute all proxy materials furnished by the
Funds and will vote shares of the Funds in accordance with
instructions received from the Contract Owners of such shares
of the Funds. VALIC shall vote the shares of the Funds for
which no instructions have been received in the same
proportion as shares of the Funds for which said instructions
have been received from Contract Owners provided that VALIC
reserves the right to vote Fund shares held in the Account in
its own right, to the extent permitted by law. VALIC and its
agents will in no way recommend action in connection with or
oppose or interfere with the solicitation of proxies for the
shares of the Funds held for such Contract Owners. VALIC will
provide to the Funds a list of Contract Owners (and their
addresses) upon written notice from any officer or director of
the Funds. Such information will be used for proxy purposes
only.
2. New Section 13 of the Agreement as set forth below is
incorporated into the Agreement.
Each Party hereto agrees to conduct the solicitation and
voting of proxies for shares of the Funds in a manner
consistent with Schedule B attached hereto and incorporated
herein by reference. VALIC and its agents will in no way
recommend action in connection with or oppose or interfere
with the solicitation of proxies for the shares of the Funds
held for such Contract Owners. VALIC will provide to the
Funds a list of Contract Owners and Participants (and their
addresses) upon written notice from
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any officer or director of the Funds or their transfer agent.
Such information will be used for proxy purposes only.
3. Schedule B as attached hereto is incorporated into the amended
Agreement.
IN WITNESS WHEREOF, the duly authorized officers of the undersigned
have executed this Amendment #1 on the 18th day of August 1997.
XXXXXX MUTUAL FUNDS CORPORATION
By: /s/ XXXXXXX XXXXXX
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Name: Xxxxxxx Xxxxxx
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Title: Managing Director
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THE VARIABLE ANNUITY LIFE INSURANCE COMPANY
By: /s/ XXXXXX XXXXXX
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Name: Xxxxxx Xxxxxx
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Title: Vice President and Managing
Director - Investments
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SCHEDULE B
1. Notice to VALIC
---------------
a) As soon as possible after the information becomes publicly
available, Distributor, Xxxxxx Mutual Funds Corp., shall
notify VALIC of the Record Date, Mail Date, Shareholder
Meeting Date, the solicitation firm ("Firm") selected, if any,
the issues involved and portfolios affected of any upcoming
proxy solicitation.
b) The Distributor shall use its best efforts to establish the
Mail Date no later than five weeks prior to the Meeting Date.
2. Confidentiality Agreement
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VALIC and the Firm shall enter into a Confidentiality Agreement
protecting Participant information contained on the tape run provided
by VALIC.
3. Record Date
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a) After notification of the proxy and subsequent to the Record
Date, VALIC will perform a "tape run" or other activity, which
will generate names, addresses and share values of VALIC
contract owners/policyholders having interests in the
applicable portfolio ("Participants") as of the Record Date.
b) VALIC will use its best efforts to notify Distributor as soon
as practical (but in no event later than 2 weeks before the
Mail Date) of the total number of VALIC Participants affected
for purposes of printing proxy materials. Additionally, VALIC
will send the tape run to the proxy firm being used by
Distributor for the proxy. Such mailing will occur at least
one week in advance of the Mail Date provided the Record Date
is at least two weeks before the Mail Date.
4. Mailing Preparation
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a) Promptly after the Record Date, Distributor and/or the Firm
shall develop and produce the proxy notice/statement, mailing
envelope, return envelope and any other correspondence to be
included in the proxy solicitation including the basic form of
the voting instruction card (i.e. a presentation of issues for
voting).
b) Using the issues as provided by Distributor and the
Participant information as provided by VALIC via the tape run,
the Firm shall produce voting instruction cards. The Firm
shall provide VALIC with the final form of such cards for
approval prior to production.
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c) VALIC, with Distributor's approval, will develop cover letters
to be included with Participant's and group contract owners'
voting instruction cards.
The final form of the voting instruction card should include,
among other things:
1) participant name
2) participant address
3) participant account number
4) information representing percent ownership in the
portfolio
5) coding identifying type of account (group/individual)
5. At Least 10 Days Prior to Mail Date
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Distributor shall file and seek approval from the SEC (and other
applicable regulatory entities) of the material identified in #4,
including cover letters, if such filing and approval is required by
applicable law or regulation.
6. SEC Approval
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Upon SEC approval, if required, and prior to the Mail Date,
Distributor will provide VALIC with 50 advance copies (for internal
purposes) of all materials filed with the SEC for use in the proxy
solicitation to VALIC Participants.
7. Mail Date
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The Firm shall handle stuffing and mailing of the proxy materials to
VALIC Participants on the Mail Date.
8. Tabulation Period
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a) The Firm shall receive and tabulate VALIC Participant voting
instructions. Each voting instruction card will represent a
share amount attributed to the VALIC Participant's account,
but Participants voting under a group contract must have group
authorization prior to inclusion in tabulation. (The
guidelines for tabulating VALIC Participant votes are found in
this Schedule.)
b) The Firm and/or Distributor shall provide VALIC with a weekly
tabulation of VALIC Participant's votes.
c) The Firm shall provide VALIC all comments from VALIC
Participants and returned "undeliverable" VALIC Participant
proxies on a daily basis as such are received.
d) VALIC shall provide approval to Distributor (via fax) to vote
shares held by VALIC Separate Account A in the applicable
Distributors Funds in accordance with instructions received
and tabulated by the Firm from VALIC Participants.
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9. Meeting Date
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a) The Firm shall execute a Certificate of Mailing and an
Affidavit of Voting Instructions received from VALIC
Participants, and send a copy of such to VALIC on the Meeting
Date.
b) Distributor shall prepare and VALIC shall execute a
Certificate of Vote for VALIC Separate Account A upon
determination of the final tabulation after the Meeting Date.
10. Two Weeks After the Meeting
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a) The Firm shall provide VALIC with all voting instruction cards
received from VALIC Participants.
b) VALIC will store or otherwise maintain custody of such voting
instruction cards for a period of no less than seven (7)
years.
c) In the event the vote is challenged or if otherwise necessary
for legal, regulatory, or accounting purposes, Distributor
will be permitted reasonable access to such cards.
11. One Month After Meeting Date
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Distributor shall xxxx XXXXX for the postage cost of mailing proxy
materials to VALIC Participants. All other costs associated with a
Distributor proxy solicitation shall be borne by Distributor.
12. Standards For Voting Shares of the Distributor Fund ("Fund") Held by
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VALIC Separate Account A and for Tabulating VALIC Participant
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Instructions
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VALIC Separate Account A will vote in accordance with instructions
received from owners of annuity contracts issued by VALIC having
values allocated to the Fund. Shares for the Fund for which no
instructions are received will be voted by VALIC Separate Account A
for or against or in abstention with respect to the proposal in the
same proportion as shares for which instructions are received by that
entity.
Each contract Participant (other than Participants under VALIC
contracts issued in connection with non- qualified and unfunded
deferred compensation plans) has the right to give instructions as to
how shares of the Fund attributable to the Participant's account
should be voted, notwithstanding that the contract owner may be the
Participant's employer. Contract owners will instruct VALIC Separate
Account A in accordance with such instructions. Fractional shares
also will be voted in accordance with instructions received.
The number of Fund shares deemed attributable to a Participant's
account prior to the annuity date and during the lifetime of the
annuitant will be determined on the basis of the value of
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accumulation units credited to the Participant's account as of the
record date. On or after the annuity date or after the death of the
Participant, the number of Fund shares deemed attributable to the
Participant's account will be based on the liability for future
variable annuity payments to the payee under the contract as of the
record date. Such liability for future payments will be calculated on
the basis of the mortality assumptions and the assumed investment rate
used in determining the number of annuity units credited to the
Participant's account and the applicable annuity unit value on the
record date.
