[Federal Register Volume 60, Number 196 (Wednesday, October 11, 1995)]
[Notices]
[Pages 52945-52948]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-25164]



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SECURITIES AND EXCHANGE COMMISSION

[Rel. No. IC-21388; No. 812-8884]


Alexander Hamilton Life Insurance Company of America, et al.

October 3, 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: Alexander Hamilton Life Insurance Company of America 
(``Alexander Hamilton''), Alexander Hamilton Variable Annuity Separate 
Account (``Separate Account''), and FMG Distributors, Inc. (``FMG'').

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

SUMMARY OF APPLICATION: Applicants seek an order permitting the 
deduction of mortality and expense risk charges from the assets of the 
Separate Account in connection with the offering of a variable annuity 
contract (``Contract''). Exemptions also are requested for any broker-
dealers who may, in the future, act as principal underwriters of the 
Contract.

FILING DATE: The application was filed on March 10, 1994 and declared 
inactive on May 1, 1995. The application was amended and reactivated on 
May 8, 1995, and further amended on September 7, 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 30, 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 Paul Shay, Esq., 
General Counsel, Alexander Hamilton Life Insurance Company of America, 
33045 Hamilton Court, Farmington Hills, Michigan 48334-3358.

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. Alexander Hamilton is a stock life insurance company licensed to 
do business in Canada, the District of Columbia and all states except 
New York. Alexander Hamilton is a wholly-owned subsidiary of Household 
Group, Inc., which is an indirect wholly-owned subsidiary of Household 
International, Inc., a diversified financial services holding company.
    2. Alexander Hamilton established the Separate Account under the 
laws of Michigan. A registration statement to register the Separate 
Account under the 1940 Act as a unit investment trust has been filed 
with the Commission (File No. 33-75714).\1\

    \1\Applicants incorporate by reference the registration 
statement for the Separate Account.
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    The Separate Account presently has nine sub-accounts (``Sub-
Accounts'') investing exclusively in shares of a corresponding 
portfolio of: (a) Alexander Hamilton Variable Insurance Trust 
(``Trust''); and (b) the Prime Money Fund (``Prime Fund''), part of 
Federated Investors Insurance Management Series (``Federated''), which 
is a management investment company. (The Trust and Prime Fund together 
referred to as ``Funds.'') Other sub-accounts may be established in the 
future to invest in other portfolios of the Funds or in portfolios of 
other affiliated or unaffiliated investment companies or unit 
investment trusts.
    3. FMG will serve as distributor and principal underwriter of the 
Contract. FMG is not otherwise affiliated with the other Applicants. 
FMG is registered under the Securities Exchange Act of 1934 (``1934 
Act'') as a broker-dealer and is a member of the National Association 
of Securities Dealers, Inc. (``NASD''). Other broker-dealers that are 
registered under the 1934 Act as broker-dealers and that are members of 
the NASD also may serve as distributors and principal underwriters of 
the Contract.
    4. The Trust and Federated each are registered under the 1940 Act 
as an open-end management investment company of the series type as 
defined by Rule 18f-2 under the 1940 Act. Investment options offered 
under the Contract include eight Trust portfolios and Federated's Prime 
Fund. Alexander Hamilton Capital Management, Inc. and Federated 
Advisers, each a registered investment adviser under the Investment 
Advisers Act of 1940, are the investment advisers for the Trust and for 
the Prime Fund, respectively. A separate class of shares of beneficial 
interest, which have been registered as securities under the 1933 Act 
on Form 

[[Page 52946]]
N-1A, is issued in connection with each investment portfolio offered 
under the Contract.
    5. The Contract is a flexible premium deferred multi-funded 
variable annuity which can be purchased on a non-tax qualified basis or 
in connection with certain retirement plans that qualify for special 
federal tax treatment under Sections 401, 403(b), 408 or 457 of the 
Internal Revenue Code of 1986, as amended. The Contract provides for a 
minimum initial premium payment and for optional subsequent premium 
payments. Under the Contract, premium payments may be allocated to: (a) 
The Sub-Accounts; (b) one or more ``Interest Rate Guarantee Periods'' 
of the Capital Developer Account;\2\ or (c) a combination of up to ten 
of these options. The Contract value of the Contract will be: (a) The 
sum of the value of all accumulation units in the Separate Account, 
which will vary in accordance with the investment performance of the 
Sub-Account(s) selected by the Contract owner; and (b) the amounts in 
the Capital Developer Account, which will be guaranteed as to principal 
and interest, although a Market Value Adjustment (``MVA'') may apply.

    \2\Applicants represent that the Capital Developer Account 
option under the Contract is not being registered under the 1933 Act 
in reliance upon Section 3(a)(8) thereof.
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    6. The Contract also provides for: (a) A death benefit, which is 
selected by the Contract owner or beneficiary from among several 
payment options; and (b) a periodic fixed and/or variable or other 
annuity payment option plan of payment offered by Alexander Hamilton 
before the maturity date of a Contract. The death benefit for a 
Contract owner who dies at age 75 or less is equal to the greatest of: 
(a) all premium payments, less ``adjusted partial withdrawals,''\3\ 
with interest compounded at 4% per year; (b) Contract value as of the 
most recent Contract anniversary before age 75 that is a multiple of 
five Contract years, plus premium payments and less any adjusted 
partial withdrawals made since that Contract anniversary;\4\ and (c) 
Contract value as of the date Alexander Hamilton receives satisfactory 
proof of death and election of an annuity payment option. The death 
benefit for a Contract owner who dies at an age greater than 75 is 
equal to the Contract value on the date Alexander Hamilton receives 
satisfactory proof of death, election of a payment option and return of 
a Contract.

    \3\The ``adjusted partial withdrawal'' for each partial 
withdrawal is the product of (a) times (b) where: (a) is the ratio 
of the amount of the partial withdrawal to the Contract value on the 
date of, but prior to, the partial withdrawal; and (b) is the death 
benefit on the date of, but prior to, the partial withdrawal.
    \4\For purposes of (a) and (b), above, the Death Benefit will be 
calculated as of the date of the owner's death and never will be 
greater than 200% of all premium payments, less withdrawals.
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    7. The following fees and charges are deducted under a Contract.

a. Annual Administrative Charge

    An annual charge of the lesser of $30 or 2% of Separate Account 
value is deducted from Separate Account value on the first day of each 
Contract year and upon full surrender of a Contract, but not after the 
maturity date, to compensate Alexander Hamilton for the administrative 
services provided to Contract owners. Alexander Hamilton does not 
anticipate any profit from this charge, which is guaranteed not to 
increase for the duration of the Contract. Applicants intend to rely on 
Rule 26a-1 under the 1940 Act to deduct this charge.

b. Contingent Deferred Sales Charge (``CDSC'')

    No sales charge currently is deducted from premium payments. A 
declining CDSC of up to 7% will be imposed as a percentage of Contract 
value withdrawn or surrendered during the first eight Contract years, 
or annuitized during the first Contract year, to pay Contract 
distribution expenses. The CDSC as a percentage of each premium payment 
is determined as follows:

------------------------------------------------------------------------
 Surrender charge (as a % of the premium    Complete years since receipt
         payment being withdrawn)                    of premium         
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7........................................  0-1                          
7........................................  2                            
6........................................  3                            
5........................................  4                            
4........................................  5                            
3........................................  6                            
2........................................  7                            
1........................................  8                            
0........................................  9 and above                  
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    In no event will the CDSC exceed 8.5% of total premium payments. 
Additionally, during the first eight Contract years, up to 10% Contract 
value surrendered or withdrawn or annuitized during that Contract year 
will be exempt from any CDSC (but not from any MVA).

c. Market Value Adjustment

    An MVA may be imposed on the partial withdrawal, full surrender or 
transfer to the Separate Account of any amount from the Capital 
Developer Account during an Interest Rate Guarantee Period.\5\ The MVA 
will never reduce Capital Development Account Value to an amount less 
than amounts allocated to that Account accumulated at an annual 
interest rate of 3%. No MVA will be applied during the last 30 days of 
an Interest Rate Guarantee Period.

    \5\The MVA will reflect the relationship between: (a) the 
Treasury Rate for the Interest Rate Guarantee Period; and (b) the 
guaranteed interest rate applicable to the Interest Rate Guarantee 
Period from which the partial withdrawal, surrender or transfer is 
made at the time of the transaction.
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d. Mortality and Expense Risk Charge

    A daily mortality and expense risk charge will be deducted at an 
annual rate of 1.25% (of which 0.50% is allocable to mortality risks 
and 0.75% to expense risks) of the value of the net assets in the 
Separate Account. The mortality and expense risk charge may be a source 
of profit for Alexander Hamilton and the excess may be used for, among 
other things, the payment of distribution expenses.
    This charge is imposed to compensate Alexander Hamilton for bearing 
certain mortality and expense risks under the Contract. Alexander 
Hamilton will assume two mortality risks under the Contract: (a) That 
the annuity rates under the Contract cannot be changed to the detriment 
of Contract owners even if annuitants live longer than projected; and 
(b) that Alexander Hamilton may be obligated to pay a death benefit 
claim in excess of a Contract's value at the time of payment. The 
expense risk assumed by Alexander Hamilton is the risk that its actual 
administration costs will exceed the amount recovered through the 
administrative charges.

e. Administrative Expense Charge

    A daily administrative charge is deducted from the assets of the 
Separate Account at an annual rate of 0.15% to compensate Alexander 
Hamilton for certain expenses it incurs in administration of the 
Contract and the Separate Account. Applicants represent that the charge 
will reimburse Alexander Hamilton only for administrative costs 
expected to be incurred over the life of the Contract. Alexander 
Hamilton does not anticipate any profit from this charge, which is 
guaranteed not to increase for the duration of the Contract. Applicants 
represent that this charge will be deducted in reliance on Rule 26a-1 
under the 1940 Act.

f. Transfer Charge

    Currently, Alexander Hamilton has no plans to impose a transfer 
charge. However, Alexander Hamilton reserves 

[[Page 52947]]
the right to impose a $10 charge for each transfer in excess of fifteen 
during any Contract year.\6\

    \6\The registration statement, which Applicants have 
incorporated by reference, provides information about the transfer 
charge.
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g. Premium Taxes

    A premium tax charge ranging from 0% to 3.5% of premiums or 
Contract value will be deducted under the Contract if Alexander 
Hamilton is required to pay premium taxes to various states and local 
jurisdictions. The deduction will be made when Alexander Hamilton is 
required to pay the premium tax and may be made from premium payments, 
upon surrender or at annuitization.

h. Deductions for Other Taxes

    No charge currently is imposed for federal, state or local income 
taxes attributable to the Separate Account, other than premium taxes. 
Alexander Hamilton may make such deductions for such taxes or the 
economic burden thereof in the future, subject to necessary regulatory 
approvals.

i. Expenses of the Trust and Fund

    Net assets of the Separate Account will reflect the investment 
advisory fee and other expenses incurred by the Trust and Funds, 
respectively.

Applicants' Legal Analysis

    1. Applicants request an order under Section 6(c) of the 1940 Act 
granting exemptions from Sections 26(a)(2)(C) and 27(c)(2) thereof to 
permit the assessment of charges for mortality and expense risks under 
the Contract. Applicants also seek exemptive relief for broker-dealers 
who, in the future, may act as principal underwriters of the Contract.
    2. Section 6(c) of the 1940 Act authorizes the Commission to exempt 
any person, security or transaction, or any class or classes of 
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.
    3. 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 arrangement 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.
    4. Applicants submit that their request for an order 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. Applicants further submit that the terms of the relief requested 
with respect to future underwriters issuing the Contract are consistent 
with the standards of Section 6(c) of the 1940 Act. Applicants assert 
that, without the requested relief, Alexander Hamilton would have to 
request and obtain exemptive relief for each new principal underwriter 
that distributes the Contract. 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.
    5. Applicants further state that the requested relief is 
appropriate in the public interest because it would promote 
competitiveness in the variable annuity market by eliminating the need 
for Alexander Hamilton 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 Alexander Hamilton to seek 
exemptive relief repeatedly with respect to the same issues addressed 
in this Application. Applicants assert that the delay and expense 
involved would impair Alexander Hamilton's ability to take effective 
advantage of business opportunities as they arise and would 
disadvantage investors as a result of Alexander Hamilton's increased 
overhead expenses.
    6. Applicants submit that the mortality and expense risk charges 
are reasonable and proper insurance charges. Alexander Hamilton 
guarantees certain risks in return for these charges. The mortality and 
expense risk charge is a reasonable charge to compensate Alexander 
Hamilton for: the risk that annuitants under the Contract will live 
longer than has been anticipated in setting the annuity rates 
guaranteed in the Contract; the risk that the death benefit will be 
greater than the Contract value; the risk created by the 
inapplicability of a CDSC to amounts paid as a death benefit; and the 
risk that administrative expenses will be greater than amounts derived 
from both the Administrative Expense Charge and the Annual 
Administrative Fee.
    7. Applicants represent that the charge of 1.25% for mortality and 
expense risks is within the range of industry practice for comparable 
variable annuity contracts. The representation is based upon Alexander 
Hamilton'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. Alexander Hamilton will maintain at its administrative 
offices, 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 result of, its comparative survey.
    8. Applicants acknowledge that, if a profit is realized from the 
mortality and expense risk charge under the Contract, all or a portion 
of such profit may be available to pay distribution expenses not 
reimbursed by the CDSC. Alexander Hamilton has concluded that there is 
a reasonable likelihood that the proposed distribution financing 
arrangement will benefit the Separate Account and Contract owners. 
Alexander Hamilton will keep at its administrative offices and make 
available to the Commission, upon request, a memorandum setting forth 
the basis for this representation.
    9. Applicants represent that the Separate Account will invest only 
in management investment companies which undertake, 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.

Conclusion

    Applicants assert that for the reasons and based 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 a mortality and expense risk charge 
under the Contract offered by the Separate Account are necessary and 
appropriate in the public interest and consistent with the protection 
of investors and the policies and provisions of the 1940 Act.


[[Page 52948]]

    For the Commission, by the Division of Investment Management, 
pursuant to delegated authority.
Jonathan G. Katz,
Secretary.
[FR Doc. 95-25164 Filed 10-10-95; 8:45 am]
BILLING CODE 8010-01-M