[Federal Register Volume 59, Number 18 (Thursday, January 27, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-1714] [[Page Unknown]] [Federal Register: January 27, 1994] ----------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION [Release No. IC-20026; 812-8712] United of Omaha Life Insurance Co., et al.; Application for Exemption January 19, 1994. AGENCY: Securities and Exchange Commission (the ``SEC'' or ``Commission''). ACTION: Notice of application for exemptions under the Investment Company Act of 1940 (the ``Act''). ----------------------------------------------------------------------- APPLICANTS: United of Omaha Life Insurance Company (``United of Omaha''), United of Omaha Separate Account C (the ``Variable Account''), and Mutual of Omaha Investors Services, Inc. (``MOIS''). RELEVANT ACT SECTIONS: Applicants seek an order under section 6(c) of the Act granting exemptions from sections 26(a)(2)(C) and 27(c)(2) of the Act. SUMMARY OF APPLICATION: Applicants seek an order to permit them to deduct a mortality and expense risk charge from the assets of the Variable Account, which funds individual flexible payment variable deferred annuity contracts (the ``Policies''). FILING DATE: The application was filed on December 3, 1993. HEARING OR NOTIFICATION OF HEARING: An order granting the application will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the SEC's Secretary and serving Applicants with a copy of the request, personally or by mail. Hearing requests must be received by the SEC by 5:30 p.m. on February 14, 1994, and should be accompanied by proof of service on the Applicants in the form of an affidavit or, for lawyers, a certificate of service. Hearing requests should state the nature of the writer's interest, the reason for the request, and the issues contested. Persons may request notification of a hearing by writing to the SEC's Secretary. ADDRESSES: Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549. Applicants, United of Omaha Life Insurance Company, Mutual of Omaha Plaza, Omaha, Nebraska 68175. FOR FURTHER INFORMATION CONTACT: C. Christopher Sprague, Senior Staff Attorney, at (202) 504-2802, or Michael V. Wible, Special Counsel, at (202) 272-2060, Office of Insurance Products, Division of Investment Management. SUPPLEMENTARY INFORMATION: The following is a summary of the application; the complete application is available for a fee from the SEC's Public Reference Branch. Applicants' Representations 1. United of Omaha is a stock life insurance company that was incorporated under the name of United Benefit Life Insurance Company under the Laws of Nebraska on August 9, 1926. In 1981, the company changed its name to United of Omaha Life Insurance Company. United of Omaha is engaged principally in the sale of life insurance, accident and health insurance, and annuity policies, and it is licensed in all states (including the District of Columbia) other than New York. United of Omaha is a wholly-owned subsidiary of Mutual of Omaha Insurance Company. 2. The Variable Account was established as a separate investment account under the laws of Nebraska on December 1, 1993 pursuant to a resolution of United of Omaha's Board of Directors. Under Nebraska law, the assets of the Variable Account are owned by United of Omaha but are held separately from United of Omaha's other assets and are not chargeable with any liabilities arising out of any other separate investments account or any other business of United of Omaha that has no specific and determinable relation to or dependence upon the Variable Account. The income, gains, or losses, realized or unrealized, from assets allocated to the Variable Account are credited to or charged against the Variable Account without regard to other income, gains, or losses of United of Omaha. 3. The Variable Account will invest in shares of one or more of the investment portfolios of the Variable Insurance Products Fund, the Variable Insurance Products Fund II, the Scudder Variable Life Investment Fund, and such other registered investment companies as United of Omaha may make available under the Policies from time to time (each, a ``Fund''). Each Fund will be a diversified, open-end management investment company, and may have a number of classes or series. 4. MOIS will serve as the distributor and principal underwriter of certain of the Policies. MOIS is registered under the Securities Exchange Act of 1934 as a broker-dealer, and is a member of the National Association of Securities Dealers, Inc. Broker-dealers other than MOIS may also serve as distributors and principal underwriters of certain of the Policies, to the extent the Policies are sold through alternate distribution channels. Any such other broker-dealer will be registered under the Securities Exchange Act of 1934, and will be a member of the National Association of Securities Dealers, Inc. The requested order would apply to any such other broker-dealer. 5. The Policies may be purchased with an initial purchase payment of $5000 on a non-tax qualified basis or in connection with retirement plans or individual retirement accounts that qualify for favorable federal income tax treatment. A Policy owner may make additional purchase payments of at least $500 each at any time prior to the annuity starting date. A Policy owner can allocate net purchase payments to United of Omaha's Fixed Account and to one or more subaccounts of the Variable Account. The minimum amount that may be allocated is $500. Several annuity payout options are available to Policy owners. In the event that the Policy owner dies prior to the annuity starting date, a death benefit is payable. 6. United of Omaha will deduct a Policy fee of $30 each Policy year. This charge will be deducted at the end of each Policy year prior to the annuity starting date (and upon a complete surrender) to compensate United of Omaha for the administrative services provided to Policy owners. Currently, this fee is waived if the Policy's accumulation value exceeds $50,000. United of Omaha also deducts a daily administrative expense charge from the assets of each subaccount of the Variable Account. This charge is equal to an effective annual rate of .15% of the net assets of the subaccount. United of Omaha imposes no charge for the first twelve transfers in any Policy year, but may impose a $10 fee for the thirteenth and each subsequent transfer. A withdrawal processing fee equal to the lesser of $25 or 2% of the amount withdrawn will be imposed for the second and each subsequent partial withdrawal request during a single Policy year, including certain withdrawals that are applied to provide annuity payments. However, the withdrawal processing fee will not be deducted on the annuity starting date if the accumulation value is applied after the second Policy anniversary to provide lifetime annuity payments. United of Omaha does not anticipate making any profit from these four charges, none of which will be increased. 7. In order to permit investment of the entire purchase payment (net of any applicable premium tax charge), United of Omaha does not deduct sales charges at the time of investment. However, a contingent deferred sales charge of up to 7% is imposed on certain full or partial Policy surrenders during the first seven years after a purchase payment is made to cover expenses relating to the sale of the Policies, including commissions to registered representatives and other promotional expenses. During the first year after a purchase payment, the withdrawal charge is 7% of the amount withdrawn. The charge declines 1% per year for older purchase payments withdrawn, and becomes 0% in the eighth and subsequent years. Each year, the Policy owner can withdraw up to 10% of total purchase payments (less any previous withdrawals), without imposition of the withdrawal charge. In addition, the withdrawal charge is waived in certain cases. United of Omaha does not anticipate that the withdrawal charge will generate sufficient revenues to pay the cost of distributing the Policies. If this charge is insufficient to cover the distribution expenses, the deficiency will be met from the general account assets of United of Omaha, which may include amounts derived from the charge for mortality and expense risks. 8. United of Omaha seeks to impose a daily charge to compensate it for bearing certain mortality and expense risks in connection with the Policies. This charge is equal to an effective annual rate of 1.25% of the value of the net assets in the Variable Account, and it will not increase. Of that amount, approximately three-fourths is attributable to mortality risks, and approximately one-fourth is attributable to expense risks. If the mortality and expense risk charge is insufficient to cover actual costs and assumed risks, the loss will fall on United of Omaha. Conversely, if the charge is more than sufficient to cover costs, any excess will be profit to United of Omaha. 9. The mortality risk borne by United of Omaha arises from its obligation to make periodic annuity payments regardless of how long all annuitants may live and from its obligation to pay a death benefit that may be greater than the Policy's accumulation value. The expense risk assumed by United of Omaha is that its actual administrative costs will exceed the amount recovered through the administrative charges. Applicants' Legal Analysis 1. Applicants request that the Commission, pursuant to section 6(c) of the Act, grant exemptions from the provisions described below to the extent necessary to permit the assessment of the daily charge for mortality and expense risks. Applicants state that the requested exemptions are appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act. Applicants state further that the proposed mortality and expense risk charge is consistent with the protection of investors because it is a reasonable and proper insurance charge. 2. Section 26(a)(2)(C) of the Act provides that no payment to the depositor of, or principal underwriter for, a registered unit investment trust shall be allowed the trustee or custodian as an expense except compensation, not exceeding such reasonable amount as the Commission may prescribe, for performing bookkeeping and other administrative duties normally performed by the trustee or custodian. Section 27(c)(2) prohibits a registered investment company or a depositor or underwriter for such company from selling periodic payment plan certificates unless the proceeds of all payments on such certificates, other than sales loads, are deposited with a trustee or custodian having the qualifications prescribed in section 26(a)(1), and are held by such trustee or custodian under an agreement containing substantially the provisions required by sections 26(a)(2) and 26(a)(3) of the Act. Applicants request an exemptive order because the proposed mortality and expense risk charge is not a bookkeeping or administrative charge allowed by sections 26(a)(2) and 27(c)(2). 3. United of Omaha represents that the mortality and expense risk charge is a reasonable charge to compensate it for assuming the risk that annuitants under the Policies will live longer as a group than had been anticipated in setting the annuity rates guaranteed in the Policies; for the risk that the accumulation value will be less than the death benefit; and for the risk that administrative expenses will be greater than amounts derived from the administrative charges. 4. United of Omaha represents that the charge of 1.25% for mortality and expense risks is within the range of industry practice with respect to comparable annuity products. This representation is based upon United of Omaha's analysis of publicly available information about similar industry products, taking into consideration such factors as current charge levels, the existence of charge level guarantees, and guaranteed annuity rates. United of Omaha will maintain at its administrative offices, available to the Commission, a memorandum setting forth in detail the products analyzed in the course of, and the methodology and results of, its comparative survey. 5. United of Omaha has concluded that there is a reasonable likelihood that the proposed distribution financing arrangements will benefit the Variable Account and the Policy owners. The basis for such conclusion is set forth in a memorandum which will be maintained by United of Omaha at its administrative offices and will be available to the Commission. 6. United of Omaha also represents that the Variable Account will only invest in management investment companies which undertake, in the event such company adopts a plan under Rule 12b-1 to finance distribution expenses, to have a board of directors (or trustees), a majority of whom are not interested persons of the company, formulate and approve any such plan under Rule 12b-1. Applicants' Conclusion Applicants request exemptions from sections 26(a)(2)(C) and 27(c)(2) to the extent necessary to permit them to deduct on a daily basis a charge equal to 1.25% annually of the assets of the Variable Account for the assumption of mortality and expense risks described herein. For the reasons set forth above, Applicants believe that the exemptions requested are necessary and appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act. For the Commission, by the Division of Investment Management, under delegated authority. Margaret H. McFarland, Deputy Secretary. [FR Doc. 94-1714 Filed 1-26-94; 8:45 am] BILLING CODE 8010-01-M