[Federal Register Volume 60, Number 184 (Friday, September 22, 1995)]
[Notices]
[Pages 49297-49301]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-23507]



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SECURITIES AND EXCHANGE COMMISSION

[Rel. No. IC-21362; No. 812-9602]


Golden American Life Insurance Company, et al.

September 15, 1995.
AGENCY: Securities and Exchange Commission (``SEC'' or ``Commission'').

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

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APPLICANTS: Golden American Life Insurance Company (``Golden 
American''), Separate Account B (``Account B'') and Separate Account D 
(``Account D''--together with Account B, ``Separate Accounts''), and 
Directed Services, Inc. (``DSI'').

RELEVANT 1940 ACT SECTION: Order requested under Section 6(c) of the 
1940 Act granting exemptions from Sections 12(b), 26(a)(2) and 27(c)(2) 
thereof and Rule 12b-1 thereunder.

SUMMARY OF APPLICATION: Applicants seek an order permitting the 
deduction of mortality and expense risk charges, including an asset-
based enhanced death benefit charge, from the assets of the Separate 
Accounts in connection with the offering of certain variable annuity 
contracts (``Contracts'') and certain other variable annuity contracts 
(``Future Contracts'') issued in the future by Golden American that are 
materially similar to the Contracts. Applicants also request that the 
order permit the deduction of a mortality and expense risk charge from 
the assets of any other separate accounts (``Future Accounts'') 
established in the future by Golden American in connection with the 
offering of the Future Contracts.

FILING DATE: The application was filed on May 11, 1995, and amended on 
August 29, 1995.

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 Secretary of the 
Commission and serving Applicants with a copy of the request, 
personally or by mail. Hearing requests should be received by the 
Commission by 5:30 p.m. on October 10, 1995, and should be accompanied 
by proof of service on Applicants in the form of an affidavit or, for 
lawyers, a certificate of service. Hearing requests should state the 
nature of the requestor'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 Commission.

ADDRESSES: Secretary, Securities and Exchange Commission, 450 5th 
Street, NW., Washington, DC 20549. Applicants, c/o Mitchell M. Cox, 
Esq., Vice President, Assistant Secretary and Associate General 
Counsel, Golden American Life Insurance Company, 1001 Jefferson Avenue, 
4th Floor, Wilmington, Delaware 19801.

FOR FURTHER INFORMATION CONTACT: Yvonne M. Hunold, Assistant Special 
Counsel, or Patrice M. Pitts, Special Counsel, Office of Insurance 
Products (Division of Investment Management), at (202) 942-0670.

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 Commission.

Applicants' Representation

    1. Golden American is a stock life insurance company authorized to 
do business in all jurisdictions, except New York. Golden American is a 
wholly-owned subsidiary of BT Variable, Inc. and a wholly-owned 
indirect subsidiary of Bankers Trust Company.
    2. The Separate Accounts were established by Golden American as 
segregated asset accounts to fund variable annuity contracts. Account B 
is registered under the 1940 Act as a unit investment trust. Account D 
is registered under the 1940 Act as a non-diversified open-end 
management company. Registration statements on Form N-4 and Form N-3, 
registering the Contracts as securities under the 

[[Page 49298]]
Securities Act of 1933 (``1933 Act'') have been filed with the 
Commission. Future Accounts also will be established by Golden American 
as segregated asset accounts. Future Accounts will be registered with 
the Commission either as unit investment trusts or open-end management 
companies under the 1940 Act. Registration statements will be filed 
with the Commission to register Future Contracts funded by the Future 
Accounts as securities under the 1933 Act.\1\

    \1\Future Accounts may receive and invest premium payments under 
Future Contracts, as well as other variable annuity contracts, 
although relief sought herein will not apply to such other 
contracts.
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    3. Account B presently has thirteen divisions, eleven of which are 
available for investment under the Contracts. Each investment division 
of Account B invests in shares of a corresponding series of The GCG 
Trust (``Trust''). Account D's only division, the Managed Global 
Account, invests directly in portfolio securities. (Account B and 
Account D divisions are referred to collectively as ``Divisions.'') 
Additional divisions may be established in the future within the 
Separate Accounts and may invest in shares of the Trust, another mutual 
fund or investment vehicle, or directly in portfolio securities. 
Divisions of Future Accounts established as unit investment trusts may 
invest in the Trust or other registered open-end management companies. 
Divisions of Future Accounts established as open-end management 
companies will invest directly in portfolio securities.
    4. DSI, a wholly-owned subsidiary of BT Variable, Inc., is the 
distributor of the Contracts and of other contracts issued by Golden 
American. DSI has entered into and will continue to enter into sales 
agreements with broker-dealers to solicit for the sale of the Contracts 
through registered representatives licensed to sell securities and 
variable insurance contracts, including variable annuities. DSI 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. 
DIS also is registered with the Commission as an investment adviser.
    5. The Trust is registered under the 1940 Act as an open-end 
management investment company. The Trust currently offers eleven series 
available for investment under the Contracts. DSI serves as manager to 
each series of the Trust.
    6. The Contracts are deferred flexible premium variable annuity 
contracts that are issued on a group and individual basis. The 
Contracts may be purchased on a non-tax qualified basis (``Non-
Qualified Contracts'') or in connection with retirement plans that 
quality for special federal tax treatment under Section 408 of the 
Internal Revenue Code (``Qualified Contracts'').
    7. The Contracts may be obtained: (a) Under a flexible premium plan 
which provides for an initial premium payment and for optional 
subsequent premium payments; (b) pursuant to an exchange of other 
contracts issued by insurance companies not affiliated with Golden 
American effected in accordance with Section 1035 of the Internal 
Revenue Code of 1986, as amended; and (c) through an update of a 
deferred variable annuity contract previously issued by Golden American 
to incorporate the features of the Contract described herein.
    8. The Contracts provide for the accumulation of values on a 
variable basis, a fixed basis, or both, and for the payment of periodic 
annuity benefits on a variable or fixed basis. Contract owners may 
allocate premium payments, or reallocate accumulation value under the 
Contracts, among the Divisions, Golden American's Fixed Account Option 
for specified Guarantee Periods\2\ or, in those states where the fixed 
account is not available, Golden American's Fixed Interest Division, 
which is part of Golden American's general account.\3\ Future Contracts 
offered through the Separate Accounts or Future Accounts also may offer 
a Fixed Account Option or Fixed Interest Division materially similar to 
those described herein.

    \2\Golden American currently offers Fixed Allocations to which 
it credits fixed rates of interest for Guarantee Periods with 
durations of 1, 3, 5, 7 and 10 years, but reserves the right to 
increase or decrease the number of Guarantee Periods available.
    \3\Applicants state that the Fixed Interest Division is not 
registered under the 1940 Act or under the 1933 Act in reliance upon 
Section 3(a)(8) of the 1933 Act.
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    9. The Contracts also provide for the payment of a death benefit, 
payable in a single sum or applied to any of the annuity options 
available under the Contracts. Contract owners generally may choose 
from among: (a) A standard death benefit equal to the greatest of (i) 
the accumulation value, (ii) total premium payments less partial 
withdrawals, and (iii) cash surrender value; or (b) either of two 
optional enhanced death benefits: the ``7% Solution'' and the ``Annual 
Ratchet''. A Contract owner may elect an optional death benefit only at 
issue, and only if the Contract owner or annuitant (when the Contract 
owner is other than an individual) is age 75 or less with respect to 
the 7% Solution option, or age 79 or less with respect to Annual 
Ratchet option. If an optional death benefit is selected, the death 
benefit will equal the greatest of: (a) accumulation value; (b) total 
premiums less partial withdrawals; (c) cash surrender value; and (d) 
the optional death benefit.

a. 7% Solution Option

    Under the 7% Solution option, the death benefit payable equals: (i) 
the guaranteed death benefit from the prior valuation date;\4\ plus 
(ii) interest calculated on the guaranteed death benefit for the 
current valuation period at an annual rate of 7%;\5\ plus (iii) any 
additional premiums paid during the current valuation period; less (iv) 
any partial withdrawals made during the current valuation period. Each 
accumulated initial or additional premium payment, reduced by any 
partial withdrawal, will continue to grow at the guaranteed death 
benefit interest rate until reaching its maximum guaranteed death 
benefit. Such maximum guaranteed death benefit is initially equal to 
two times the initial or each additional premium paid. Thereafter, the 
maximum guaranteed death benefit as of the effective date of a partial 
withdrawal is reduced first by the amount of any partial withdrawal of 
earnings and second in proportion to the reduction in the accumulation 
value for any partial withdrawal of premium (in each case, including 
any associated market value adjustment and surrender charge incurred).

    \4\On the Contract date the guaranteed death benefit is equal to 
the initial premium.
    \5\With respect to amounts in the Liquid Asset Division and 
Limited Maturity bond Division, and amounts in a Fixed Allocation or 
the Fixed Interest Division, however, the interest rate applied will 
be the applicable net rate of return for the Liquid Asset Division 
and the Limited Maturity Bond Division, and interest credited to the 
Fixed Allocation or Fixed Interest Division during the current 
valuation period, if such rate is less than an effective annual rate 
of 7%.
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b. Annual Ratchet Option

    Under the Annual Ratchet option, the death benefit payable equals: 
(i) The guaranteed death benefit from the prior valuation date;\6\ less 
(ii) any partial withdrawals taken since the prior valuation date; plus 
(iii) additional premium paid since the prior valuation date.

    \6\On the Contract date the guaranteed death benefit is equal to 
the initial premium.
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    c. Annually on each Contract anniversary on or prior to the 
Contract owner attaining age 80, the guaranteed death benefit is reset 
to equal the greater of (i) the guaranteed death benefit from the prior 
valuation date, less any partial 

[[Page 49299]]
withdrawals taken since the prior valuation date, plus any additional 
premiums paid since the prior valuation date, or (ii) the accumulation 
value as of such date.
    10. The following charges are deducted under the Contracts.
    a. Premium Taxes. A premium tax charge, ranging from 0% to 3.5% of 
premiums, may be deducted from accumulation value for premium taxes 
assessed against Golden American by various states and local 
jurisdictions. Golden American reserves the right to change this amount 
to conform with changes in the law or in the state of residence of the 
Contract owner. The charge will be deducted on the annuity commencement 
date if premium taxes are incurred on such date. If a premium tax is 
incurred at the time of premium payment, deduction of the premium tax 
charge will be deferred until the Contract is surrendered, an excess 
partial withdrawal is taken, or the date annuity payments commence.
    b. Contingent Deferred Sales Charge (``CDSC''). No sales charge 
currently is deducted from premium payments. A CDSC will be imposed as 
a percentage of premium payments being withdrawn if the contract is 
surrendered or an excess partial withdrawal is taken within seven years 
from the date Golden American receives and accepts each premium 
payment. The amount of the surrender charge at the time of surrender or 
excess partial withdrawal depends upon the number of complete years 
that have elapsed since the premium payment being withdrawn was made. 
In calculating the CDSC, Golden American treats premium payments as 
being withdrawn on a first-in first-out basis, and as being withdrawn 
before earnings. The CDSC as a percentage of each premium payment is 
determined as follows:

------------------------------------------------------------------------
                                                         Complete years 
 Surrender charge (as a percent of the premium payment  since receipt of
                    being withdrawn                          premium    
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7.....................................................  0-1             
6.....................................................  2               
5.....................................................  3               
4.....................................................  4               
3.....................................................  5               
1.....................................................  6               
0.....................................................  7 and over.     
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In no event will the CDSC exceed 8.5% of premium payments.
    Amounts equal in the aggregate to 15% of the accumulation value may 
be withdrawn free of any CDSC each Contract year. Golden American will 
impose a CDSC on any partial withdrawal in excess of that amount; the 
CDSC will be deducted from the accumulation value in proportion to the 
accumulation value in each Division of the Separate Accounts, a Fixed 
Allocation or the Fixed Interest Division from which the withdrawal is 
taken. Golden American may waive the CDSC for a surrender or ``excess 
partial withdrawal'' where the Contract owner (i) receives qualified 
extended medical care on or after the first Contract anniversary for at 
least 45 days during any continuous 60 day period, or (ii) is first 
diagnosed by a qualifying medical professional, on or after the first 
Contract anniversary, as having a qualifying terminal illness.
    c. Administrative Charge. A charge of $40 is deducted on the 
Contract anniversary and on surrender of the Contract for 
administrative costs expected to be incurred over the life of the 
Contracts. No administrative charge is deducted if the accumulation 
value or total premiums paid at the end of the Contract processing 
period equals or exceeds $100,000. The charge is deducted 
proportionately from the Divisions, Fixed Allocation or Fixed Interest 
Division. The charge is guaranteed not to increase for the duration of 
the Contracts. Applicants intend to rely on Rule 26a-1 under the 1940 
Act to deduct this charge. Golden American does not anticipate any 
profit from this charge.
    d. Excess Allocation Charge. No charge currently is deducted for 
reallocation of accumulation values. Golden American reserves the right 
to charge a maximum $25 fee for each reallocation made after the 
twelfth reallocation in a Contract year.\7\ This charge will be 
deducted proportionately from each Division and Fixed Allocation or 
Fixed Interest Division from which such reallocation is made, unless 
the Contract owner has elected the option to have all charges against 
accumulation value deducted exclusively from the Liquid Asset Division. 
Applicants intend to rely on Rule 26a-1 under the 1940 Act to deduct 
this charge. Golden American does not expect to make a profit from this 
charge.

    \7\Any reallocations made pursuant to the dollar cost averaging 
program will not be included in determining if an excess allocation 
charge will be imposed.
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    e. Asset Based Administrative Charge. A daily charge equal to an 
annual rate of 0.15% will be deducted from the assets in each Division 
for expenses incurred in administration of the Contracts and the 
Separate Accounts. The charge is guaranteed not to increase, and is 
designed to reimburse Golden American only for administrative costs 
expected to be incurred over the life of the Contracts. Applicants 
represent that the charge will be deducted in reliance on Rule 26a-1 
under the 1940 Act. Golden American does not expect to make a profit 
from this charge.
    f. Mortality and Expense Risk Charge. Golden American imposes 
charges as compensation for bearing certain mortality and expense risks 
under the Contracts. For Contracts with the standard death benefit or 
an Annual Ratchet death benefit, Golden American will deduct a daily 
mortality and expense risk charge from the Separate Accounts at an 
annual rate not to exceed a maximum 1.25% of the value of the average 
daily net asset in each Division. Of the 1.25% mortality and expense 
risk charge associated with the Annual Ratchet death benefit, 
approximately 0.90% is allocable to mortality risks and 0.35% to 
expense risks. If the Contract owner selects the standard death 
benefit, the mortality and expense risk charge will decrease. For 
Contracts with the 7% Solution death benefit, Golden American will 
deduct a daily mortality and expense risk charge at an annual rate of 
1.40% (of which 0.35% is allocable to expense risks, 0.90% to mortality 
risks and 0.15% to the additional enhanced death benefit) of the value 
of the average daily net assets in each Division. This charge may be a 
source of profit for Golden American and the excess may be used for, 
among other things, the payment of distribution expenses.
    Golden American will assume two mortality risks under the 
Contracts: (1) That the annuity rates under the Contracts cannot be 
changed to the detriment of Contract owners even if annuitants live 
longer than projected; and (2) that Golden American may be obligated to 
pay a claim for a standard death benefit or an optional death benefit 
in excess of a Contract owner's cash surrender value. Golden American 
also will assume an expense risk through its guarantee not to increase 
the charges for issuing the Contracts and administering the Contracts 
and the Separate Accounts, regardless of its actual expenses.
    g. Deductions for Other Taxes. No charge currently is imposed for 
federal, state or local income taxes attributable to the Separate 
Accounts. Golden American may make such a charge in the future, subject 
to necessary regulatory approvals. Charges also may be made for any 
other applicable taxes or economic burden resulting from the 
application of tax laws that Golden 

[[Page 49300]]
American determines to be properly attributable to the Separate 
Accounts.
    h. Expenses of the Trust and Separate Accounts. Net assets of 
Account B and Account D will reflect the investment advisory fee and 
other expenses incurred by the Trust and by the Managed Global Account, 
respectively.
    11. Applicants request that the exemptive relief also apply to 
Future Contracts issued by Golden American through the Separate 
Accounts or Future Accounts which may invest in the Trust or in shares 
of other registered investment companies, or directly in a portfolio of 
securities. Applicants state that a Future Contract will be deemed a 
materially similar contract if it provides the same rights, benefits 
and obligations as the Contract described herein and has charges equal 
to or less than the charges assessed under the Contracts, including the 
mortality and expense risk charge, enhanced death benefit charge and 
CDSC for the Contracts described herein. In particular, the maximum 
surrender charge will be 7% of a premium payment, and each Contract 
year a Contract owner may withdraw up to 15% of accumulation value free 
of any CDSC that otherwise might apply. After a premium payment has 
been invested for 7 years, no CDSC will apply. Moreover, in no event 
will the CDSC exceed 8.5% of premium payments made.

Applicants Legal Analysis

    1. Section 6(c) of the 1940 Act authorizes the Commission to exempt 
any person, security or transaction, or any class or classes or 
persons, securities or transactions, from the provisions of the 1940 
Act and the rules thereunder, if and to the extent that such 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.

Exemptive Relief Under Section 26(a)(2) and 27(c)(2) of the 1940 
Act

    2. Applicants request an order under Section 6(c) granting 
exemptions from Sections 26(a)(2)(C) and 27(c)(2) of the 1940 Act to 
permit the assessment of chargers for mortality and expense risks, 
including the enhanced death benefit charge, under the Contracts and 
Future Contracts.
    3. Applicants submit that their request for an order that applies 
to Future Contracts and to Future Accounts is appropriate in the public 
interest and consistent with the protection of investors and purposes 
fairly intended by the policy and provisions of the 1940 Act. Without 
the requested relief, Golden American would have to request and obtain 
exemptive relief for each new Future Account it establishes and each 
class of Future Contracts it issues. Applicants represent that such 
additional requests for exemptive relief would present no issues under 
the 1940 Act that have not already been addressed in this application.
    4. Applicants further state that the requested relief is 
appropriate in the public interest because it would promote 
competitiveness in the variable annuity policy market by eliminating 
the need for Golden American to file redundant exemptive applications, 
thereby reducing its administrative expenses and maximizing the 
efficient use of its resources. Investors would not receive any benefit 
or additional protection by requiring Golden American to seek exemptive 
relief repeatedly with respect to the issues addressed in this 
Application. Applicants assert that the delay and expense involved 
would impair Golden American's ability to take advantage effectively of 
business opportunities as they arise and would disadvantage investors 
as a result of Golden American's increased overhead expenses.
    5. Sections 26(a)(2)(C) and 27(c)(2) of the 1940 Act, in relevant 
part, prohibit a registered unit investment trust, its depositor or 
principal underwriter, from selling periodic payment plan certificates 
unless the proceeds of all payments, other than sales loads, are 
deposited with a qualified bank and held under arrangements which 
prohibit any payment to the depositor or principal underwriter except a 
reasonable fee, as the Commission may prescribe, for performing 
bookkeeping and other administrative duties normally performed by the 
bank itself.
    6. Applicants submit that the mortality and expense risk charges 
are reasonable and proper insurance charges. Applicants represent that 
the mortality and expense risk charges are within the range of industry 
practice for comparable variable annuity contracts. This representation 
is based upon Golden American's analysis of publicly available 
information about similar industry products, taking into consideration 
such factors as current charge levels, existence of charge level 
guarantees, and guaranteed annuity rates. Applicants state that Golden 
American will maintain at its home office and make available to the 
Commission, upon request, a memorandum setting forth in detail the 
products analyzed in the course of, and the methodology and results of, 
its comparative survey.
    7. Applicants further represent that the additional charge for the 
enhanced death benefit is reasonable in relation to the risks assumed 
by Golden American in connection with the 7% Solution option. In 
arriving at this determination, Golden American ran a large number of 
computer generated trials at various issue ages and determined 
actuarially the level cost of providing the enhanced death benefits. 
Based on this analysis, Golden American determined that an additional 
charge equal to 0.15% of the net assets in the Separate Accounts was a 
reasonable charge. Golden American undertakes to maintain at its home 
office a memorandum, available to the Commission upon request, setting 
forth in detail the methodology used in determining that the additional 
charge for the enhanced death benefit under the 7% Solution option is 
reasonable in relation to the risks assumed by Golden American under 
the Contracts.
    8. Applicants acknowledge that, if a profit is realized from the 
mortality and expense risk charge under the Contracts, all or a portion 
of such profit may be available to pay distribution expenses borne by 
Golden American. Golden American has concluded that there is a 
reasonable likelihood that the proposed distribution financing 
arrangements will benefit the Separate Accounts and the Contract 
owners. Golden American will keep at its home office and make available 
to the Commission, upon request, a memorandum setting forth the basis 
for this representation.
    9. With respect to any Future Contracts offered through the 
Separate Accounts and any Future Accounts, Golden American undertakes 
that it will not offer any such Future Contracts without first making 
the determination that the mortality and expense risk charge was within 
the range of industry practice, that any additional charge for any 
enhanced death benefit was reasonable in relation to the risks 
assessed, and that there is a reasonable likelihood that proposed 
distribution financing arrangements will benefit the affected Separate 
Accounts or Future Accounts and existing Contract owners and Future 
Contact owners.
    Further, the basis for each such determination shall be set forth 
in a memorandum which will be maintained by Golden American at its home 
office and which will be made available to the Commission.
    10. Applicants represent that Account B and any Future Account 
established as a unit investment trust will invest only in a management 
investment 

[[Page 49301]]
company that has undertaken, in the event any such company adopts a 
plan under Rule 12b-1 to finance distribution expenses, to have a board 
of directors, a majority of whom are not interested persons of any such 
investment company, as defined in the 1940 Act, formulate and approve 
any plan under Rule 12b-1 under the 1940 Act to finance distribution 
expenses. Applicants further represent that Account D undertakes, and 
any Future Account established as an open-end management company will 
undertake, in the event that it adopts a plan under Rule 12b-1 to 
finance distribution expenses, to have a majority of its board of 
directors who are not interested persons, formulate and approve any 
plan under Rule 12b-1 to finance distribution expenses.

Request for Exemptive Relief From Section 12(b) of the 1940 Act and 
Rule 12b-1

    11. Section 12(b) of the 1940 Act makes it unlawful for a 
registered investment company from acting as a distributor of 
securities of which it is the issuer, except through an underwriter. 
Rule 12b-1 prohibits any such company from directly or indirectly 
financing distribution of the company's shares except in compliance 
with the Rule's requirements. Rule 12b-1 requires that a company 
financing distribution of its shares formulate a written plan 
describing all material aspects of the proposed arrangement, and that 
the plan be approved initially by the company's shareholders, directors 
and disinterested directors. The directors must vote annually to 
continue such a plan, and the directors must conclude that there is a 
reasonable likelihood that implementation or continuation of the plan 
will benefit the company and its shareholders.
    12. Applicants expect to finance the expenses of distributing the 
Contracts through use of Golden American's general assets, which may be 
attributable in part to the surplus from mortality and expense risk 
charges. Golden American requests an order under Section 6(c) of the 
1940 Act for exemptive relief from Section 12(b) of the 1940 Act and 
Rule 12b-1 thereunder, insofar as the proposed distribution financing 
arrangement might be deemed to involve the direct or indirect use of 
assets in Account D, or in any Future Account established as an open-
end management company, for distribution. Applicants represent that 
this aspect of the requested relief is solely ``defensive,'' i.e., to 
clarify that the current distribution financing is not subject to 
Section 12(b) or Rule 12b-1 thereunder. Applicants contend that the 
requested relief is not intended to cover the imposition of a separate 
charge for distribution expenses against the assets in Account D. 
Applicants represent that no separate charge for distribution expenses 
will be assessed on the assets of Account D or any Future Account 
organized as an open-end management company unless and until the charge 
complies with the requirements of Rule 12b-1.
    13. Applicants assert that Rule 12b-1 was not intended to apply to 
managed accounts, that the Rule's provisions are directed only at 
traditional mutual funds and should not be applied to managed accounts, 
and that the protections of Rule 12b-1 are not necessary in the case of 
managed accounts. Applicants state that the Commission's review under 
Sections 26 and 27 of the 1940 Act of the reasonableness of asset 
charges of managed accounts, and explicit prospectus disclosure that 
the asset charge may be used for distribution expenses, provide 
sufficient protection for Contract owners and obviates the need for a 
managed account to comply with the requirements of Rule 12b-1.
    14. Applicants assert that application of Rule 12b-1 to managed 
accounts would produce a burdensome and inequitable treatment of these 
accounts, would place them at an unfair disadvantage with respect to 
unit investment trusts offering similar annuity contracts, and would 
create an artificial distinction between managed accounts and unit 
investment trusts not justified by policy considerations.

Conclusion

    Applicants assert that for the reasons and based upon the facts set 
forth above, the requested exemptions from sections 12(b), 26(a)(2)(C) 
and 27(c)(2) of the 1940 Act and Rule 12b-1 thereunder to deduct a 
mortality and expense risk charge under the Contracts and Future 
Contracts offered by the Separate Accounts or by Future Accounts 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 M. McFarland,
Deputy Secretary.
[FR Doc. 95-23507 Filed 9-21-95; 8:45 am]
BILLING CODE 8010-02-M