[Federal Register Volume 60, Number 4 (Friday, January 6, 1995)]
[Notices]
[Pages 2164-2166]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-295]



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SECURITIES AND EXCHANGE COMMISSION

[Rel. No. IC-20808; File No. 812-9122]


The Ohio National Life Insurance Co., et al.

December 29, 1994.
AGENCY: Securities and Exchange Commission (``SEC'' or the 
``Commission'').

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

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APPLICANTS: The Ohio National Life Insurance Company (the ``Company''), 
Ohio National Variable Account D (``VAD''), and The O.N. Equity Sales 
Company (``ONESCO''), collectively, the ``Applicants.''

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

SUMMARY OF APPLICATION: Applicants seek an order to the extent 
necessary to permit the issuance and sale of certain group variable 
annuity contracts offered presently (the ``Contracts'') or in the 
future through existing and future subaccounts of VAD, from which a 
mortality and expense risk charge and/or a distribution charge may be 
deducted.

FILING DATE: The application was filed initially on July 20, 1994. An 
amended and restated application was filed on December 20, 1994.

HEARING OR NOTIFCATION OF HEARING: An order granting the application 
will be issued unless the Commission orders a hearing. Interested 
persons may request a hearing on the application by writing to the 
Secretary of the Commission and serving the Applicants with a copy of 
the request, either personally, or by mail. Hearing requests must be 
received by the Commission by 5:30 p.m. on January 23, 1995, and should 
be accompanied by proof of service on the Applicants in the form of an 
affidavit or, for lawyers, by certificate. Hearing requests should 
state the nature of the interest, the reason for the request, and the 
issues contested. Persons may request notification of the date of a 
hearing by writing to the Secretary of the Commission.

ADDRESSES: Secretary, SEC, 450 5th Street, NW., Washington, DC 20549. 
Applicants, 237 William Howard Taft Road, Cincinnati, OH 45219.

FOR FURTHER INFORMATION CONTACT: Patrice M. Pitts, Attorney, at (202) 
942-0670, 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 
Public Reference Branch of the SEC.

Applicants' Representations

    1. The Company was organized under the laws of Ohio in 1909 as a 
stock life insurance company, and became a mutual life insurance 
company in 1959. The Company writes life, accident and health 
insurance, and annuities in 45 states and the District of Columbia.
    2. Established by the Company in 1969 as a separate account under 
Ohio law, VAD funds group variable annuity contracts (including the 
Contracts). Income, gains and losses, whether or not realized, from 
assets allocated to VAD are credited to or charged against VAD without 
regard to other income, gains or losses of the Company. The assets 
maintained in VAD will not be charged with any liabilities arising out 
of any other business conducted by the Company. Nevertheless, all 
obligations arising under the variable annuity contracts funded by VAD, 
including the commitment to make annuity payments, are general 
corporate obligations of the Company. Accordingly, all of the Company's 
assets are available to meet its obligations under those variable 
annuity contracts. VAD is registered as a unit investment trust under 
the 1940 Act.
    3. ONESCO, a wholly-owned subsidiary of the Company, is a 
registered broker-dealer and a member of the National Association of 
Securities Dealers, Inc. ONESCO is the principal underwriter of the 
Contracts.
    4. The Contracts are group variable annuity contracts that provide 
for the accumulation of values and the payment of annuity benefits on a 
variable and/or fixed basis. The Contracts are designed for the 
following types of tax-qualified retirement plans (``Plans''): (a) 
annuity purchase plans adopted by public school systems or by certain 
tax-exempt organizations which qualify for tax-deferred treatment 
pursuant to Section 403(b) of the Internal Revenue Code (the ``Code''); 
(b) other employee pension or profit-sharing trusts or plans which 
qualify for tax-deferred treatment under Section 401(a), 401(k) or 
403(a) of the Code; and (c) state and municipal deferred compensation 
plans.
    5. The minimum contribution amount under each Contract is $25 per 
Plan participant. Additional contributions may be made at any time, but 
not more often than biweekly. Generally, maximum contributions under 
the Contracts equal the maximum amounts permitted under the respective 
Plan.
    6. Net purchase payments under the Contracts (after deduction of 
any applicable state premium tax) are allocated to one or more 
subaccounts of VAD and/or to the Company's general account. Assets of 
the subaccounts of VAD are invested in shares of a corresponding 
portfolio of Ohio National Fund, Inc., a mutual fund having seven 
diversified investment portfolios. Additional subaccounts may be 
created by VAD in the future to invest in new investment portfolios of 
Ohio National Fund, Inc., or in investment portfolios of other 
investment companies. In the future, VAD also may offer additional 
variable annuity contracts (the ``future contracts'') which are 
materially similar to the Contracts.
    7. The Company will assess an administration expense charge, on an 
annual basis, to 0.35 percent of Contract value. The expenses 
reimbursed by the administration charge include, but are not limited 
to, those for: accounting, auditing, legal, and Contract owner 
services; reports to regulatory authorities and Contract owners; and 
[[Page 2165]] issuing Contracts. The Company will assess a charge of $5 
for each transfer of Contract value among the various subaccounts.
    8. The administration expense and transfer charges will be deducted 
from VAD assets in reliance upon Rules 26a-1 and 11a-2 under the 1940 
Act, and no relief is requested in connection with the deduction of 
those charges. Neither of these charges is designed to produce a 
profit, but rather to reimburse the Company for expenses incurred.
    9. When applicable, the Company will deduct state premium taxes. 
Where permitted, the Company will assess a premium tax charge when 
annuity payments begin; otherwise, a premium tax charge will be 
deducted from premium payments. The Company will deduct a premium tax 
charge in reliance on Rule 26a-2 of the 1940 Act and, therefore, 
requests no relief connection with the deduction of such a charge.
    10. The Company will assess a contingent deferred sales charge 
(``CDSC'') for partial withdrawals or surrenders in the first seven 
years after a Plan participant's account has been established under the 
Contract. The CDSC will be deducted as a percentage of the amount 
withdrawn, and declines from 7 percent in the first year to 1 percent 
in the seventh year.
    11. The prospectuses for the Contracts will disclose that, to the 
extent that the amount of the CDSC received by the Company is 
insufficient to recover the fees paid to ONESCO for sales commissions, 
any deficiency will be made up from the assets in the general account 
of the Company. Those general account assets include, among other 
things, any profit from mortality and expense risk charges. The CDSC 
will be deducted in reliance on Rule 6c-8 under the 1940 Act.
    12. The Contracts provide that the Company has the right to deduct 
up to 0.40 percent of contract value, on an annual basis, for 
distribution expenses. This ``distribution charge'' is designed to 
compensate the Company for assuming the risk that the cost of 
distributing the Contracts will exceed the revenues from the CDSC. 
Whether the Applicants actually impose a distribution charge depends 
upon their assessment of the profitability of selling and administering 
the Contracts without such a charge. If sufficient sales levels are 
achieved without the charge, there may be no need to impose the charge, 
or at least no need to impose it at the maximum (0.40 percent) rate.
    13. If and to the extent that a distribution charge is imposed, the 
Company will monitor VAD to ensure that aggregate deductions for 
distribution expense and sales charges deducted upon partial 
withdrawals or surrender do not exceed 9 percent of aggregate 
contributions to be made by or on behalf of any Plan participant.
    14. Although the distribution charge will not be imposed initially 
and may never be imposed, the prospectus for the Contracts will include 
a description of the distribution expense charge and a representation 
that aggregate deductions for distribution expense and sales charges 
deducted upon partial withdrawals or surrender will not exceed 9 
percent of aggregate contributions made by any Contract owner.
    15. The Company will assess a mortality and expense risks charge 
equal, on an annual basis, to 1 percent of Contract value. The Company 
estimates that 0.40 percent of the charge is for assumption of 
mortality risks, and 0.60 percent is for the assumption of expense 
risks. The Company hopes to realize a profit from this charge. If, 
however, the charge is insufficient to cover the actual mortality and 
expense risks involved, the loss will fall on the Company.
    16. The mortality risk arises from the Company's guarantee that it 
will make annuity payments in accordance with annuity rate provisions 
established at the time the Contract is issued for the life of the 
annuitant, no matter how long the annuitant lives. The expense risk 
assumed by the Company is that the costs of administering the Contracts 
during the accumulation and annuity periods will exceed the amounts 
received from the administrative expense charge assessed by the 
Company.
    17. Changes in annuity rates specified in a Contract may not be 
effected without the consent of the Contract holder unless a Contract 
has been in effect for at least 5 years and the Contract holder has 
been given 5 years' notice of the change; changes in annuity rates 
apply only to participant accounts established after the effective date 
of such changes. The administrative charge of 0.35 percent, the 
distribution charge of 0.40 percent, and the mortality and expense 
risks charge of 1 percent assessed under the Contracts may be modified 
during the first five years of a Contract only by written agreement 
with the Contract holder. Thereafter, changes in those charges may be 
made on any Contract anniversary, provided that the Contract holder is 
given 90 days notice of such changes. Any modification in 
adminstrative, distribution, and/or mortality and expense risks charges 
effected pursuant to a written agreement with the Contract holder would 
not affect the rights of a participant, contingent annuitant, or 
beneficiary in or to any annuity effected before the date of the 
modification, unless (i) the modification was necessary to secure a tax 
benefit for the Contract holder or the participants, or (ii) a ruling 
or determination by a court of law or a governmental agency indicated 
that the modification was necessary in order to satisfy the 
requirements of any law or regulation administered by that agency. 
Because the order requested herein would permit deduction of mortality 
and expense risks charges of up to 1 percent, additional exemptive 
relief would be necessary to increase the mortality and expense risk 
charge in excess of that amount. The Contracts also provide that the 
mortality and expense risks charge may not be increased more frequently 
than once per year, and that the sum of the mortality and expense risks 
charge, the distribution charge, and the administrative charge may 
never exceed 2 percent.

Applicants' Legal Analysis

    1. The Applicants request that the Commission, under Section 6(c) 
of the 1940 Act, grant exemptions from Sections 26(a)(2)(C) and 
27(c)(2) thereof to the extent necessary to permit the issuance and 
sale of Contracts and any future contracts funded by existing and 
future subaccounts of VAD, from which a mortality and expense risk 
charge and/or a distribution charge may be deducted.
    2. Section 6(c) of the 1940 Act provides, in pertinent part, that 
the Commission, by order upon application, may conditionally or 
unconditionally exempt any person, security, or transaction, or any 
class or classes thereof, from any provision of the 1940 Act or any 
rule or regulation thereunder, if and to the extent that the exemption 
is necessary or appropriate in the public interest and consistent with 
the protection of investors and the purposes fairly intended by the 
policy and provisions of the 1940 Act.
    3. The Applicants submit that extending the requested relief to 
future subaccounts of VAD and to the future contracts is appropriate in 
the public interest. Such an order would eliminate the need for the 
Company to file redundant exemptive applications, thereby reducing its 
administrative expenses and maximizing the efficient use of its 
resources. Both the delay and expense of repeatedly seeking exemptive 
relief in connection with new subaccounts or in connection with 
materially similar contracts would impair the ability of the Company to 
[[Page 2166]] take effective advantage of business opportunities that 
might arise. Investors would not receive any benefit or additional 
protection by requiring the company to seek exemptive relief repeatedly 
with respect to the issues addressed in this application.
    4. Sections 26(a)(2)(C) and 27(c)(2) of the 1940 Act require, among 
other things, that all payments received under a periodic payment plan 
certificate sold by a registered unit investment trust, any depositor 
thereof or underwriter therefor be held by a qualified bank as trustee 
or custodian, under arrangements which prohibit any payment to the 
depositor or principal underwriter except for the payment of a fee, not 
exceeding such reasonable amount as the Commission may prescribe, for 
bookkeeping and other administrative services.
    5. The Applicants submit that the Company is entitled to reasonable 
compensation for its assumption of mortality and expense risks under 
the Contracts, and represent that the mortality and expense risks 
charge of 1.00 percent per annum proposed for the Contracts is within 
the range of industry practice for comparable variable annuity 
products. The Applicants represent that this representation is based 
upon an analysis made by the Company of publicly available information 
about selected similar industry products, taking into consideration 
such factors as annuity purchase rate guarantees, current levels of 
charges, any contractual right to increase charges above current 
levels, the existence of other charges, and the contractual right to 
make free withdrawals. The Company will maintain at its home office, 
and make available to the Commission, memoranda setting forth the 
products analyzed in the course of, and the methodology and results of, 
the comparative survey conducted.
    6. Applicants acknowledge that the Company's revenues from the CDSC 
and distribution charge (if any) assessed under the Contracts could be 
insufficient to cover the costs of distributing the Contracts. If so, 
the excess distribution costs would be paid from the Company's general 
assets, including the profits (if any), from the mortality and expense 
risks charge assessed. In such circumstances, a portion of the 
mortality and expense risks charge might be viewed as covering a 
portion of the costs relating to the distribution of the Contracts.
    7. The Applicants submit that, notwithstanding the foregoing, the 
Company has concluded that there is a reasonable likelihood that the 
proposed distribution financing arrangements made with respect to the 
Contracts will benefit VAD and the contract owners. The basis for that 
conclusion is set forth in a memorandum which will be maintained by the 
Company at its service office and will be available to the Commission.
    8. The Company represents that VAD will invest only in underlying 
mutual funds which have undertaken to have a board of directors, a 
majority of the members of which are not ``interested persons'' of that 
fund (within the meaning of Section 2(a)(19) of the 1940 Act), 
formulate and approve any plan to finance distribution expenses in 
accordance with Rule 12b-1 under the 1940 Act.
    9. Applicants submit that, because the aggregate distribution 
charges (if any) and sales charges will never exceed 9 percent, 
Applicants will deduct no more to pay for distribution of the Contracts 
than is permitted by the 1940 Act and Rule 6c-8 thereunder. Because 
those charges will be deducted from Contract value over a period of 
many years, rather than from contributions to the Plans, Plan 
participants will have more funds available for investment than if a 
front-end sales charge of 9 percent were deducted.

Conclusion

    The Applicants submit 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 permit the deduction of a mortality and 
expense risks charge and/or a distribution charge under the Contracts 
and the future contracts funded through existing and future subaccounts 
of VAD meet the statutory standards of Section 6(c) of the 1940 Act. 
Accordingly, the Applicants assert 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 1940 Act.

    For the Commission, by the Division of Investment Management, 
under delegated authority.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 95-295 Filed 1-5-95; 8:45 am]
BILLING CODE 8010-01-M