[Federal Register Volume 59, Number 141 (Monday, July 25, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-18029]


[[Page Unknown]]

[Federal Register: July 25, 1994]


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SECURITIES AND EXCHANGE COMMISSION
[Rel. No. IC-20410; File No. 812-8928]

 

Preferred Life Insurance Company of New York, et al.

July 18, 1994.
AGENCY: Securities and Exchange Commission (``SEC'' or ``Commission'').

ACTION: Notice of Application for an Amended Order under the Investment 
Company Act of 1940 (``1940 Act'').

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APPLICANTS: Preferred Life Insurance Company of New York (``Company''), 
Preferred Life Variable Account C (``Variable Account''), and NALAC 
Financial Plans, Inc.

RELEVANT 1940 ACT SECTIONS: Amended Order requested under Section 6(c) 
of the 1940 Act for exemptions from Sections 26(a)(2)(C) and 27(c)(2) 
of the 1940 Act.

SUMMARY OF APPLICATION: Applicants seek an Amended Order to permit the 
deduction of a mortality and expense risk charge under certain variable 
annuity contracts from the assets of the Variable Account, or any other 
separate account established by the Company in the future to support 
materially similar variable annuity contracts.

FILING DATE: Applicants initially filed an application on February 7, 
1989. Notice of the Application for Exemption was published on March 
22, 1989 (Release No. IC-16890, File No. 812-7238) and an Order 
Granting Exemptions was issued on April 20, 1989 (Release No. IC-
16934). The Applicants filed this Application for an Amended Order on 
April 7, 1994.

HEARING OR NOTIFICATION OF HEARING: An order granting the Application 
for an Amended Order and superseding the existing Order will be issued 
unless the Commission orders a hearing. Interested persons may request 
a hearing by writing to the Secretary of the SEC and serving the 
Applicants with a copy of the request, personally or by mail. Hearing 
requests should be received by the SEC by 5:30 p.m. on August 12, 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 Secretary of the SEC.

ADDRESSES: Secretary, Securities and Exchange Commission, 450 Fifth 
Street, NW., Washington, DC 20549. Applicants: 152 West 57th Street, 
18th Floor, New York, NY 10019.

FOR FURTHER INFORMATION CONTACT:
W. Thomas Conner, Attorney, or Michael V. Wible, Special Counsel, 
Office of Insurance Products, Division of Investment Management, at 
(202) 942-0670.

SUPPLEMENTARY INFORMATION: 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. The Company is a stock life insurance company organized under 
the laws of the state of New York. The Company is a wholly-owned 
subsidiary of Allianz Life Insurance Company of North America 
(``Allianz''). Allianz is a stock life insurance company organized 
under the laws of Minnesota.
    2. The Variable Account is a segregated investment account of the 
Company and is registered under the 1940 Act as a unit investment 
trust. The Variable Account was established to fund certain variable 
annuity contracts (``Contracts'') issued by the Company. The Variable 
Account is subdivided into sub-accounts, each of which invests in a 
fund of the Franklin Valuemark Funds, a Massachusetts business trust 
registered under the 1940 ``Act'' as a diversified open-end management 
investment company.
    3. NALAC Financial Plans, Inc., a broker-dealer registered under 
the Securities Exchange Act of 1934, is the distributor of the 
Contracts.
    4. The Contracts are individual flexible payment deferred variable 
annuity contracts (``Deferred Contracts'') or individual immediate 
variable annuity contracts (``Immediate Contracts''). The Contracts are 
available in connection with retirement plans that qualify for Federal 
tax advantages and for plans that do not so qualify.
    5. The Contracts provide for certain charges. Any premium taxes or 
other taxes payable to a state or other governmental entity will be 
charged against the Contract values. The Company may, in its sole 
discretion, pay taxes when due and deduct that amount from the Contract 
at a later date.
    6. Owners of Deferred Contracts may transfer all or a part of their 
interest in a sub-account to another sub-account. The Company reserves 
the right to charge, per transfer, the lesser of $25 or 2% of the 
amount transferred. Prior to the date annuity payments begin (``Annuity 
Date''), there is no charge for the first three transfers per Contract 
year. Currently, the Company permits twelve transfers per Contract year 
without a transfer fee.
    Owners of Immediate Contracts may transfer all or part of their 
interest in a sub-account to another sub-account without the imposition 
of any transfer fee.
    7. For Deferred Contracts, the Company will deduct an annual 
contract maintenance charge of $30. Applicants represent that this 
charge has not been set at a level greater than actual cost and 
contains no element of profit. There is no contract maintenance charge 
for Immediate Contracts.
    8. The Company deducts an administrative expense charge that is 
equal on an annual basis to .15% of the average daily net assets of the 
Variable Account. This charge, together with the contract maintenance 
charge, is designed to reimburse the Company for the expenses it incurs 
in the establishment and maintenance of the Contracts and the Variable 
Account. The Company does not intend to profit from this charge. Should 
this charge be insufficient, the Company will not increase this charge 
and will incur the loss. Applicants rely on Rule 26a-1 to deduct the 
contract maintenance charge and the administrative expense charge. 
Applicants represent that the administrative expense charge will be 
reduced in the future to the extent that the amount of this charge is 
in excess of that necessary to reimburse the Company for its 
administrative expenses.
    9. The Contracts do not provide for a front-end sales charge to be 
deducted from purchase payments. Under the Deferred Contracts, a 
contingent deferred sales charge (``CDSC'') is imposed on full or 
partial surrenders to reimburse the Company for expenses incurred in 
connection with the promotion, sale, and distribution of the Contracts. 
The CDSC applies only to purchase payments received within five years 
of the date of surrender. No CDSC is imposed on distributions made as 
annuity payments. In calculating the CDSC, purchase payments are 
allocated to the amount surrendered on a first-in, first-out basis. The 
amount of the CDSC is calculated by (i) allocating purchase payments to 
the amount surrendered; (ii) multiplying each allocated purchase 
payment that has been held under the Contract by a percentage 
corresponding to the period for which the payment was held; and (iii) 
adding the product of each multiplication in (ii) above. Under certain 
of the Deferred Contracts, the percentages are as follows:

------------------------------------------------------------------------
                    Years since payment                      Percentage 
------------------------------------------------------------------------
0-1.......................................................           5  
1-2.......................................................           5  
2-3.......................................................           4  
3-4.......................................................           3  
4-5.......................................................           1.5
5+........................................................           0  
------------------------------------------------------------------------

    Under other of the Deferred Contracts, the percentages are as 
follows:

------------------------------------------------------------------------
                    Years since payment                      Percentage 
------------------------------------------------------------------------
0-1.......................................................           6  
1-2.......................................................           5  
2-3.......................................................           4  
3-4.......................................................           3  
4-5.......................................................           1.5
5+........................................................           0  
------------------------------------------------------------------------

    In no event will the aggregate CDSC exceed 9% of the total purchase 
payments made. A Contract owner may surrender no more than once 
annually 15% of purchase payments less prior surrenders without 
incurring a CDSC. The Company may eliminate or reduce the CDSC under 
Company procedures then in effect. There is no CDSC imposed on 
Immediate Contracts.
    10. For all Contracts issued in connection with the Variable 
Account, the Company deducts a mortality and expense risk charge that 
is equal, on an annual basis, to 1.25% of the average daily net assets 
of the Variable Account. Of this 1.25% charge, approximately .90% is 
for mortality risks and .35% is for expense risks.
    The mortality risks assumed by the Company arise from its 
contractual obligation to make annuity payments after the Annuity Date 
for the life of the annuitant in accordance with the annuity rates 
guaranteed in the Contracts. The expense risk assumed by the Company is 
that all actual expenses involved in administering the Contracts, 
including Contract maintenance costs, administrative costs, mailing 
costs, data processing costs, legal fees, accounting fees, filing fees, 
and the costs of other services may exceed the amount recovered from 
the contract maintenance charge and the administrative expense charge.

Applicants' Legal Analysis and Conditions

    1. Sections 26(a)(2)(C) and 27(c)(2) of the 1940 Act prohibit a 
registered unit investment trust and any depositor or underwriter 
thereof from selling periodic payment plan certificates unless the 
proceeds of all payments are deposited with a qualified trustee or 
custodian and held under arrangements that prohibit any payment to the 
depositor or principal underwriter except a fee, not exceeding such 
reasonable amounts as the Commission may prescribe, for performing 
bookkeeping and other administrative services.
    2. Applicants request an amended order under Section 6(c) of the 
1940 Act exempting them from Sections 26(a)(2)(C) and 27(c)(2) of the 
1940 Act to the extent necessary to permit the deduction of the 
mortality and expense risk charge from the assets of the Variable 
Account under the Contracts. Applicants request that the Amended Order 
also permit the deduction of the mortality and expense risk charge from 
the assets of any other separate account established by the Company in 
the future to support variable annuity contracts offered on a basis 
similar in all material respects to the basis on which the Contracts 
are offered.
    3. Applicants submit that their request for an Amended Order that 
applies to the Variable Account and to future separate accounts issuing 
contracts that are substantially similar to the Contracts is 
appropriate in the public interest. Such an amended order would promote 
competitiveness in the variable annuity contract market by eliminating 
the need for the Company to file redundant exemptive applications, 
thereby reducing its administrative expenses and maximizing the 
efficient use of its resources. Applicants further submit that the 
requested relief is consistent with the purposes of the 1940 Act and 
the protection of investors for the same reasons. Investors would not 
receive any benefit or additional protection by the Company by being 
required repeatedly to seek exemptive relief with respect to the same 
issues addressed in this application.
    4. Applicants represent that the mortality and expense risk charge 
is reasonable in relation to the risks undertaken by the Company and 
within the range of industry practice with respect to comparable 
annuity products. Applicants base this representation on an analysis of 
the mortality risks, taking into consideration such factors as any 
contractual right to increase charges above current levels, the 
guaranteed annuity purchase rates, the expense risks taking into 
consideration the existence of charges against separate account assets 
for other than mortality and expense risks, and the estimated costs, 
now and in the future, for certain product features as well as an 
examination of comparable annuity products. The Company represents that 
it will maintain at its principal office a memorandum, available to the 
Commission, setting forth in detail this analysis.
    5. If a profit is realized from the mortality and expense risk 
charge, all or a portion of such profit may be viewed as being offset 
by distribution expenses not reimbursed by the CDSC. The Company 
represents that there is a reasonable likelihood that the proposed 
distribution financing arrangements will benefit the Variable Account 
and Contract owners. The basis for such conclusion will be set forth in 
a memorandum maintained by the Company at its principal office and 
available to the Commission upon request.
    6. The Company represents that the Variable Account will invest 
only in management investment companies that undertake, in the event 
the company adopts a plan to finance distribution expenses under Rule 
12b-1 under the 1940 Act, to have a board of directors, a majority of 
whom are not interested persons of the company within the meaning of 
Section 2(a)(19) of the 1940 Act, formulate and approve any such plan.

Conclusion

    Applicants assert that, for the reasons and upon the facts set 
forth above, the requested exemptions from Sections 26(a)(2)(C) and 
27(c)(2) of the 1940 Act to deduct the mortality and expense risk 
charge from the assets of the Variable Account under the Contracts meet 
the standards in Section 6(c) of the 1940 Act. Applicants assert that 
the exemptions requested are necessary and appropriate in the public 
interest and consistent with the protection of investors and the 
policies and provisions of the 1940 Act.

    For the Commission, by the Division of Investment Management, 
pursuant to delegated authority.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 94-18029 Filed 7-22-94; 8:45am]
BILLING CODE 8010-01-M