[Federal Register Volume 61, Number 181 (Tuesday, September 17, 1996)]
[Notices]
[Pages 48991-48996]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23702]


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SECURITIES AND EXCHANGE COMMISSION
[Rel. No. IC-22212; File No. 812-10088]

John Hancock Declaration Trust, et al.; Exemption Application
September 10, 1996.
AGENCY: Securities and Exchange Commission (the ``SEC'' or the 
``Commission'').

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

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APPLICANTS: John Hancock Declaration Trust (the ``Trust'') and John 
Hancock Advisers, Inc. (the ``Adviser'').

RELEVANT 1940 ACT SECTIONS: Order requested under Section 6(c) of the 
1940 Act from the provisions of Sections 9(a), 13(a), 15(a) and 15(b) 
of the 1940 Act and Rules 6e-2(b)(15) and 6e-3(T)(b)(15) thereunder.

SUMMARY OF APPLICATION: Applicants seek an order to the extent 
necessary to permit shares of any current or future series of the Trust 
and shares of any other investment company that is designed to fund 
variable insurance products and for which the Adviser, or any of its 
affiliates, may serve as investment advisor, administrator, manager, 
principal underwriter or sponsor (collectively, with the Trust, the 
``Funds'') to be sold to and held by: (a) variable annuity and variable 
life insurance separate accounts of both affiliated and unaffiliated 
life insurance companies (the ``Participating Insurance Companies''); 
and (b) certain qualified pension and retirement plans outside of the 
separate account context (the ``Eligible Plans'').

FILING DATE: The application was filed on April 17, 1996, and amended 
on August 29, 1996.

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 on this application by writing to the 
Secretary of the SEC and serving Applicants with a copy of the request, 
personally or by mail. Hearing requests must be received by the 
Commission by 5:30 p.m. on October 7, 1996 and 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 the date of a hearing by 
writing to the Secretary of the SEC.

ADDRESSES: Secretary, SEC, 450 Fifth Street, N.W., Washington, D.C. 
20549. Applicants, John Hancock Declaration Trust, c/o Anne C. Hodsdon, 
President, 101 Huntington Avenue, Boston, Massachusetts, 02199.

FOR FURTHER INFORMATION CONTACT:
Martha H. Platt, Senior Attorney, or Patrice Pitts, 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 Public 
Reference Branch of the SEC.
Applicants' Representations
    1. The Trust is a Massachusetts business trust registered under the 
1940 Act as an open-end diversified management investment company. The 
Trust's registration statement on Form N-1A was declared effective on 
August 12, 1996. The Trust currently is composed of ten separate 
portfolios: John Hancock V.A. International Fund; John Hancock V.A. 
Emerging Growth Fund; John Hancock V.A. Discovery Fund; John Hancock 
V.A. Diversified Core Equity Fund; John Hancock V.A. Sovereign 
Investors Fund; John Hancock V.A. 500 Index Fund; John Hancock V.A. 
Sovereign Bond Fund; John Hancock V.A. Strategic Income Fund; John 
Hancock V.A. Global Income Fund; and John Hancock V.A. Money Market 
Fund. Additional portfolios may be added in the future.
    2. The Adviser is registered with the SEC under the Investment 
Advisers Act of 1940, and will be the investment manager for each of 
the Trust's portfolios. The Adviser is an indirectly wholly-owned 
subsidiary of the John Hancock Mutual Life Insurance Company. The 
Adviser has engaged other registered investment advisers (``Sub-
Advisers'') to conduct the investment programs of certain Trust

[[Page 48992]]

portfolios and has entered into investment sub-advisory agreements with 
each Sub-Adviser.
    3. The Trust intends to offer its shares to separate accounts 
(``Separate Accounts''), of both affiliated and unaffiliated insurance 
companies, supporting variable annuity and variable life insurance 
contracts. Insurance companies whose separate accounts will own shares 
of one or more portfolios of the Funds are referred to herein as 
``Participating Insurance Companies.'' Each Participating Insurance 
Company will have the legal obligation of satisfying all requirements 
applicable to it under the federal securities laws in connection with 
any variable contract which it issues.
    4. The Trust also intends to offer one or more portfolios of its 
shares directly to Eligible Plans. The Funds' shares sold to Eligible 
Plans which are subject to the Employee Retirement Income Security Act 
of 1984, as amended, may be held by the trustee(s) of the Eligible 
Plans.
    5. The Adviser has no plans to offer investment advisory services 
to Eligible Plans or Eligible Plan participants (``Participants''), and 
will not act as investment adviser to any of the Eligible Plans that 
will purchase shares of the Trust.

Applicants' Legal Analysis

    1. In connection with scheduled premium variable life insurance 
contracts invested in a separate account registered under the 1940 Act 
as a Unit investment trust, Rule 6e-2(b)(15) provides partial 
exemptions from Sections 9(a), 13(a), 15(a), and 14(b) of the 1940 Act. 
Rule 6e-2(b)(15), paragraphs (i) and (ii) provide partial conditional 
exemptions from Section 9(a) of the 1940 Act, and Rule 6e-2(b)(15)(iii) 
provides a partial exemption from Sections 13(a), 15(a), and 15(b) of 
the 1940 Act to the extent those sections have been deemed by the 
Commission to require ``pass-through'' voting with respect to an 
underlying fund's shares.
    2. The exemptions granted by Rule 6e-2(b)(15) are available only 
where all of the assets of the separate account consist of the shares 
of one or more registered management investment companies which offer 
their shares ``exclusively to variable life insurance separate accounts 
of the life insurer, or of any affiliated life insurance company.'' 
Therefore, the relief granted by Rule 6e-2(b)(15) is not available with 
respect to a scheduled premium variable life insurance separate account 
that owns shares of a management company that also offers its shares to 
a variable annuity separate account or a flexible premium variable life 
insurance separate account of the same company or any affiliated 
insurance company. The use of a common management investment company as 
the underlying investment medium for both variable annuity and variable 
life insurance separate accounts is referred to herein as ``mixed 
funding.'' In addition, the relief granted by Rule 6e-2(b)(15) is not 
available if shares of the underlying management company are offered to 
variable annuity or variable life insurance separate accounts of 
unaffiliated life insurance companies. The use of a common management 
investment company as the underlying investment medium for separate 
accounts of unaffiliated insurance companies is referred to herein as 
``shared funding.''
    3. In connection with flexible premium variable life insurance 
contracts issued through a separate account registered under the 1940 
Act as a unit investment trust, Rule 6e-3(T)(b)(15) provides partial 
exemptions from Section 9(a), and from Sections 13(a), 15(a), and 15(b) 
of the 1940 Act to the extent that those sections have been deemed by 
the Commission to require ``pass-through'' voting with respect to an 
underlying Fund's shares. The exemptions granted by Rule 6e-3(T)(b)(15) 
are available only where all of the assets of the separate account 
consist of the shares of one or more registered management investment 
companies which offer their shares exclusively to separate accounts of 
the life insurer, or any affiliated life insurance company offering 
either scheduled premium variable life insurance contracts or flexible 
premium variable life insurance contracts, or both; or which also offer 
their shares to variable annuity separate accounts of the life insurer 
or of an affiliated life insurance company. Therefore, Rule 6e-
3(T)(b)(15) permits mixed funding for flexible premium variable life 
insurance. However, Rule 6e-3(T) does not permit shared funding, 
because the relief granted by Rule 6e-3(T)(b)(15) is not available with 
respect to a flexible premium variable life insurance separate account 
that owns shares of a management company that also offers its shares to 
separate accounts (including flexible premium variable life insurance 
separate accounts) of unaffiliated life insurance companies.
    4. Applicants state that the relief granted by the existing Rules 
6e-2(b)(15) and 6e-3(T)(b)(15) is not affected by the purchase of 
shares of the Funds by an Eligible Plan. Applicants also state that 
exemptive relief is requested with respect to sale of shares to 
Eligible Plans because the separate accounts investing in the Funds are 
themselves investment companies seeking relief and do not wish to be 
denied such relief if the Funds sell shares to Eligible Plans.
    5. Rules 6e-2(B)(15)(i) and 6e-3(T)(b)(15)(i) provide, in effect, 
that the eligibility restrictions of Section 9(a) do not apply to an 
officer, director, or employee of an insurance company or any of its 
affiliates, who does not participate directly in the management or 
administration of the underlying fund. Rules 6e-2(b)(15)(ii) and 6e-
3(T)(b)(15)(ii) provide, in effect, that the fact that any individual 
disqualified under Section 9(a) (1) or (2) is affiliated with the 
insurance company would not, by virtue of Section 9(a)(3), disqualify 
the insurance company from serving in any capacity with respect to an 
underlying fund, provided that the disqualified individual did not 
participate directly in the management or administration of the fund.
    6. The partial relief granted in Rules 6e-2(b)(15) and 6e-
3(T)(b)(15) from the requirements of Section 9 limits the amount of 
monitoring necessary to ensure compliance with Section 9 to that which 
is appropriate in light of that Section's policy and purposes. 
Applicants state that those Rules recognize that it is not necessary 
for the protection of investors or the purposes fairly intended by the 
policy and provisions of the 1940 Act to apply the provisions of 
Section 9(a) to individuals in a large insurance company complex, most 
of whom will have no involvement in matters pertaining to investment 
companies managed, administered, or invested in by that organization. 
Those individuals who participate in the management or administration 
of the Funds will remain the same regardless of which separate accounts 
or insurance companies use the Funds. Accordingly, Applicants state 
that applying the requirements of Section 9(a) because of investment by 
other insurers' separate accounts would be unjustified and would not 
serve any regulatory purpose. Therefore, Applicants submit that it is 
unnecessary to apply section 9(a) to individuals in various 
unaffiliated insurance companies (or affiliated companies of 
Participating Insurance Companies) that may utilize a Fund as the 
funding medium for variable contracts. Additionally, Applicants state 
that for the same reasons as set forth above with respect to 
investments by separate accounts, there is no regulatory purpose to be 
served in extending the monitoring requirements because of investment 
in the Funds by Plans.

[[Page 48993]]

    7. Rules 6e-2(b)(15)(iii) and 6e-3(T)(b)(15)(iii) assume the 
existence of a pass-through voting requirement with respect to 
management investment company shares held by a separate account. Pass-
through voting privileges will be provided with respect to all contract 
owners so long as the Commission interprets the 1940 Act to require 
pass-through voting privileges for contract owners.
    8. Rules 6e-2(b)(15)(iii) and 6e-3(T)(b)(15)(iii) provide 
exemptions from the pass-through voting requirement with respect to 
several significant matters, assuming the limitations on mixed and 
shared funding are observed. Rules 6e-2(b)(15)(iii)(A) and 6e-
3(T)(b)(15)(iii)(A)(1) provide that the insurance company may disregard 
the voting instructions of its contract owners with respect to the 
investments of an underlying fund or any contract between a fund and 
its investment adviser, when required to do so by an insurance 
regulatory authority (subject to the provisions of paragraphs (b)(5)(i) 
and (b)(7)(ii)(A) of the Rules). Rules 6e-2(b)(15)(iii)(B) and 6e-
3(T)(b)(15)(iii)(A)(2) provide that the insurance company may disregard 
the voting instructions of contract owners in favor of any change in 
such company's investment policies, principal underwriter, or any 
investment adviser (subject to the other provisions of paragraphs 
(b)(5)(ii) and (b)(7)(ii) (B) and (C) of the Rules).
    9. The prohibitions on mixed and shared funding might reflect 
concerns regarding possible divergent interests between or among 
different classes of investors. However, Applicants state that the 
possibility of divergent interest should not be increased substantially 
by virtue of mixed and shared funding or investment by Eligible Plans, 
and further that compliance with the conditions set forth below will 
minimize the risk that a divergence of interests will result in any 
adverse impact upon investors.
    10. Applicants submit that there is no reason why the investment 
policies of any portfolio of the Funds would or should be materially 
different from what it would or should be if it funded only annuity 
contracts or only scheduled or flexible premium life insurance 
contracts. Each type of insurance product is designed as a long-term 
investment program. The Funds' portfolio swill not be managed to favor 
or disfavor any particular Participating Insurance Company or type of 
insurance product. There is no reason to believe that different 
features of various types of contracts, including the ``minimum death 
benefit'' guarantee under certain variable life insurance contracts, 
will lead to different investment policies for different types of 
variable contracts. To the extent that the degree of risk may differ as 
between variable annuity contracts and variable life insurance 
contracts, the differing insurance charges imposed, in effect, adjust 
any such differences and equalize the insurers' exposure in either 
case. No one investment strategy can be identified as appropriate to a 
particular insurance product. Each pool of variable annuity contract 
owners and variable life insurance contract owners is composed of 
individuals of diverse financial status, age, and insurance and 
investment goals. A fund supporting even one type of insurance product 
must accommodate those factors in order to attract and retain 
purchasers.
    11. Applicants note that while there are differences in the manner 
in which distributions from variable contracts and Eligible Plans are 
taxed, these differences will have no impact on the Funds and therefore 
the tax consequences do not raise any conflicts of interest. When 
distributions are to be made, and a Separate Account or Eligible Plan 
is unable to net purchase payments to make the distributions, the 
Separate Account and Eligible Plan will redeem shares of the Funds in 
the same manner and using the same procedures as each other. Each will 
redeem shares of the Funds at their net asset value in conformity with 
Rule 22c-1 under the 1940 Act (without the imposition of any sales 
charge) to provide proceeds to meet distribution needs. An Eligible 
Plan will make distributions in accordance with the terms of the 
Eligible Plan. A Participating Insurance Company will make 
distributions in accordance with the terms of the variable contract. 
Distributions and dividends will be declared and paid by the Funds 
without regard to the character of the shareholder. Based upon the 
foregoing, Applicants have concluded that the tax consequences of 
distributions from variable contracts and Eligible Plans do not raise 
any conflicts of interest with respect to the use of the Funds.
    12. In connection with any meeting of shareholders, the Funds will 
inform each shareholder, including each Separate Account and Eligible 
Plan, of information necessary for the meeting. A Participating 
Insurance Company will then solicit voting instructions consistent with 
the ``pass-through'' voting requirement. Separate Accounts and Eligible 
Plans will each have the opportunity to exercise voting rights with 
respect to their shares in the Funds, although only the Separate 
Accounts are required to follow the pass-through voting procedure. The 
voting rights provided to Eligible Plans with respect to shares of the 
Fund would be no different from the voting rights that are provided to 
Eligible Plans with respect to shares of mutual funds sold to the 
general public.
    13. Applicants submit that there are no conflicts between contract 
owners of Separate Accounts and Participants with respect to the state 
insurance commissioners' veto powers over investment objectives. The 
state insurance commissioners have been given the veto power in 
recognition of the fact that insurance companies usually cannot simply 
redeem their separate accounts out of one fund and invest in another. 
Generally, time-consuming, complex transactions must be undertaken to 
accomplish such redemptions and transfers. Conversely, the trustees of 
Eligible Plans or Participants in participant-directed Eligible Plans 
can make the decision quickly and implement the redemption of their 
shares from the Funds and reinvest in another funding vehicle without 
the same regulatory impediments or, or is the case with most Eligible 
Plans, even hold cash pending suitable investment. Based on the 
foregoing, Applicants have concluded that even if there should arise 
issues where the interests of contract owners and the interests of 
Eligible Plans are in conflict, the issues can be almost immediately 
resolved in that the trustees of the Eligible Plans can, on their own, 
redeem the shares out of the Funds.
    14. Applicants submit that there is no greater potential for 
material irreconcilable conflicts arising between the interests of 
Participants and contract owners of Separate Accounts from possible 
future changes in the federal tax laws than that which already exists 
between variable annuity contract owners and variable life insurance 
contract owners.
    15. Applicants state that the ability of the Funds to sell their 
shares directly to Eligible Plans does not create a ``senior 
security,'' as such term is defined under Section 18(g) of the 1940 
Act, with respect to any contract owner as opposed to a Participant. 
``Senior security'' is defined under Section 18(g) of the 1940 Act to 
include ``any stock of a class having priority over any other class as 
to distribution of assets or payment of dividends.'' As noted above, 
regardless of the rights and benefits of Participants or contract 
owners under variable annuity and variable life insurance contracts, 
the Eligible Plans and the variable annuity separate

[[Page 48994]]

accounts and variable life insurance separate accounts only have rights 
with respect to their respective shares of the Funds. They can only 
redeem such shares at their net asset value. No shareholder of the 
Funds has any preference over any other shareholder with respect to 
distribution of assets or payment of dividends.
    16. Applicants state that various factors have kept more insurance 
companies from offering variable annuity contracts and variable life 
insurance contracts than currently offer such contracts. These factors 
include the costs of organizing and operating a funding medium, the 
lack of expertise with respect to investment management (principally 
with respect to stock and money market investments), and the lack of 
name recognition by the public as investment experts to whom the public 
feels comfortable entrusting their investment dollars. For example, 
some smaller life insurance companies may not find it economically 
feasible, or within their investment or administrative expertise, to 
enter the variable contract business on their own. Use of a Fund as a 
common investment medium for variable contracts would reduce or 
eliminate these concerns.
    17. Mixed and shared funding, as well as investment in the Funds by 
Eligible Plans, should provide several benefits to contract owners. The 
Separate Accounts of Participating Insurance Companies will benefit 
only from the investment and administrative expertise available through 
the Funds, but also from the cost efficiencies and investment 
flexibility afforded by a larger pool of funds. It would permit a 
greater amount of assets available for investment, thereby promoting 
economies of scale, permitting greater diversification, and making the 
addition of new portfolios more feasible. Additionally, making the 
Funds available for mixed and shared funding will encourage more 
insurance companies to offer variable contracts, an this should result 
in increased competition with respect to both various contract design 
and pricing, which can be expected to result in more product variation 
and lower charges.

Applicants' Conditions

    If the requested Order is granted, Applicants consent to the 
following conditions:
    1. A majority of the Board of Trustees or Directors of each Fund 
(each, a ``Board'') will consist of persons ho are not ``interested 
persons'' of that Fund, as defined by Section 2(a)(19) of the 1940 Act 
and the rules thereunder and as modified by any applicable orders of 
the Commission, except that if this condition is not met by reason of 
the death, disqualification, or bona fide resignation of any trustee(s) 
or director(s), then the operation of this condition will be suspended: 
(a) for a period of 45 days if the vacancy or vacancies may be filled 
by the Board; (b) for a period of 60 days if a vote of shareholders is 
required to fill the vacancy or vacancies; or (c) for such longer 
period as the Commission may prescribe by order upon application.
    2. The Boards will monitor their respective Funds for the existence 
of any material irreconcilable conflict among the interests of contract 
owners of all Separate Accounts and the interests of Participants under 
Eligible Plans investing in the respective Funds. An irreconcilable 
material conflict may arise for a variety of reasons, including: (a) an 
action by any state insurance regulatory authority; (b) a change in 
applicable federal or state insurance, tax, or securities laws or 
regulations, or a public ruling, private letter ruling, no-action or 
interpretative letter, or any similar action by insurance, tax, or 
securities regulatory authorities; (c) an administrative or judicial 
decision in any relevant proceeding; (d) the manner in which the 
investment of any portfolio of the Funds are being managed; (e) a 
difference in voting instructions given by variable annuity contract 
owners and variable life insurance contract owners; (f) a decision by a 
Participating Insurance Company to disregard the voting instructions of 
contract owners; and (g) if applicable, a decision by a Participating 
Eligible Plan (as defined below) to disregard the voting instructions 
of Participants.
    3. The Adviser (or any other investment adviser of a Fund), any 
Participating Insurance Company, and any Eligible Plan that executes a 
Fund participation agreement upon becoming an owner of ten percent 
(10%) or more of the assets of the Fund (referred to herein as a 
``Participating Eligible Plan''), will report any potential or existing 
conflicts to the Board. The Adviser, Participating Insurance Companies, 
and Participating Eligible Plans will assist the Board in carrying out 
its responsibilities under these conditions by providing the Board with 
all information reasonably necessary for the Board to consider any 
issues raised. This includes, but is not limited to, an obligation by 
each Participating Insurance Company to inform the Board whenever 
contract owner voting instructions are disregarded and an obligation by 
each Participating Eligible Plan to inform the Board whenever 
Participant voting instructions are disregarded. The responsibility to 
report such information and conflicts and to assist the Board will be a 
contractual obligation of all Participating Insurance Companies and 
Participating Eligible Plans investing in the Funds under their 
agreements governing participation in each Fund, and such agreements 
will provide that these responsibilities will be carried out with a 
view only to the interests of contract owners and Participants, as 
applicable.
    4. If it is determined by a majority of the Board, or a majority of 
its disinterested directors, that a material irreconcible conflict 
exists with respect to a portfolio of a Fund, the relevant 
Participating Insurance Companies and Participating Eligible Plans 
will, at their expense and to the extent reasonably practicable (as 
determined by a majority of the disinterested directors, of that Fund), 
take whatever steps are necessary to remedy or eliminate the 
irreconcilable material conflict, up to and including: (a) withdrawing 
the assets allocable to some or all of the Separate Accounts from that 
Fund or any portfolio thereof and reinvesting such assets in a 
different investment medium, which may include another portfolio of 
that Fund, or submitting the question whether such segregation should 
be implemented to a vote of all affected contract owners and, as 
appropriate, segregating the assets of any appropriate group (i.e., 
variable annuity contract owners, variable life insurance contract 
owners, or contract owners of one or more Participating Insurance 
Companies) that votes in favor of such segregation or offering to the 
affected contract owners the option of making such a change; and (b) 
establishing a new registered management investment company. If a 
material irreconcilable conflict arises because of a Participating 
Insurance Company's decision to disregard contract owner voting 
instructions and that decision represents a minority position or would 
preclude a majority vote, the Participating Insurance Company may be 
required, at the Fund's election, to withdraw its Separate Account's 
investment in that Fund (or any portfolio thereof, and no charge or 
penalty will be imposed as a result of such withdrawal. If a material 
irreconcilable conflict arises because of a Participating Eligible 
Plan's decision to disregard Participant voting instructions and that 
decision represents a minority position or would preclude a majority 
vote, the Participating Eligible Plan may be required, at the Fund's 
election, to withdraw its investment in that Fund (or any portfolio 
thereof), and no charge

[[Page 48995]]

or penalty will be imposed as a result of such withdrawal. To the 
extent permitted by applicable law, the responsibility to take remedial 
action in the event of a Board determination of an irreconcilable 
material conflict and to bear the cost of such remedial action will be 
a contractual obligation of all Participating Insurance Companies and 
Participating Eligible Plans under their agreements governing 
participation in the Funds, and these responsibilities will be carried 
out with a view only to the interests of contract owners and 
Participants, as applicable.
    5. For purposes of Condition 4, a majority of the disinterested 
members of the Board will determine whether any proposed action 
adequately remedies any irreconcilable material conflict, but in no 
event will a Fund or the Adviser (or any other investment adviser of a 
Fund) be required to establish a new funding medium for any variable 
contract. No Participating Insurance Company will be required by this 
Condition 4 to establish a new funding medium for any variable contract 
if an offer to do so has been declined by vote of a majority of 
contract owners materially and adversely affected by the irreconcilable 
material conflict. No Participating Eligible Plan will be required by 
Condition 4 to establish a new funding medium for such Eligible Plan if 
(a) an offer to do so has been declined by vote of a majority of 
Participants materially and adversely affected by the irreconcilable 
material conflict or (b) pursuant to governing Eligible Plan documents 
and applicable law, the Participating Eligible Plan may make such 
decision without Participant vote.
    6. The Board's determination of the existence of an irreconcilable 
material conflict and its implications will be made known promptly in 
writing to the Advisor and to all Participating Insurance Companies and 
all Participating Eligible Plans.
    7. Participating Insurance Companies will pass through the voting 
privileges of Fund shares to all contract owners so long as the 
Commission continues to interpret the 1940 Act as requiring pass-
through voting privileges for contract owners. Accordingly, 
Participating Insurance Companies will vote shares of the Funds held in 
their Separate Accounts in a manner consistent with voting instructions 
timely received from contract owners. Each Participating Insurance 
Company will vote Fund shares held in its Separate Accounts for which 
voting instructions from contract owners are not timely received, as 
well as Fund shares held in its general account or otherwise attributed 
to it, in the same proportion as those shares for which voting 
instructions are timely received. Participating Insurance Companies 
will be responsible for assuring that each of their Separate Accounts 
investing in a Fund calculates voting privileges in a manner consistent 
with the Separate Accounts of other Participating Insurance Companies 
investing in that Fund. The obligation to calculate voting privileges 
in a manner consistent with all other Separate Accounts investing in a 
Fund will be a contractual obligation of all Participating Insurance 
Companies under their agreements governing participation in that Fund. 
Each Participating Eligible Plan will vote as required by applicable 
law and governing Eligible Plan documents.
    8. Each Fund will comply with all provisions of the 1940 Act 
requiring voting by shareholders (which, for these purposes, will be 
the persons having a voting interest in shares of the Fund), and, in 
particular, each Fund will either provide for annual meetings (except 
insofar as the Commission may interpret Section 16 of the 1940 Act not 
to require such meetings), or comply with Section 16(c) of the 1940 Act 
(although the Fund is not one of the trusts described in Section 16(c)) 
as well as with Section 16(a) of the 1940 Act and, if applicable, 16(b) 
of the 1940 Act. Further, each Fund will act in accordance with the 
Commission's interpretation of the requirements of Section 16(a) with 
respect to periodic elections of directors and with whatever rules the 
Commission may promulgate with respect thereto.
    9. Each Fund will disclose in its prospectus that: (a) the Fund is 
intended to be a funding vehicle for all types of variable annuity 
contracts and variable life insurance contracts offered by various 
Participating Insurance Companies and for Eligible Plans; (b) material 
irreconcilable conflicts may possibly arise among various contract 
owners and Participants; and (c) the Board will monitor events in order 
to identify the existence of any material irreconcilable conflict and 
determine what action, if any, should be taken in response to such 
conflict. Each Fund will notify all Participating Insurance Companies 
that Separate Account prospectus disclosure regarding potential risks 
of mixed and shared funding may be appropriate.
    10. If and to the extent that Rule 6e-2 or 6e-3(T) under the 1940 
Act are amended, or Rule 6e-3 is adopted, to provide exemptive relief 
from any provision of the 1940 Act or the rules promulgated thereunder 
with respect to mixed or shared funding on terms and conditions 
materially different from any exemptions granted in the order requested 
in this Application, then the Funds and/or Participating Insurance 
Companies, as appropriate, will take such steps as may be necessary to 
comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as 
adopted, to the extent applicable.
    11. The Adviser, and the Participating Insurance Companies and 
Participating Eligible Plans will at least annually submit to the Board 
such reports, materials, or data as the Board may reasonably request so 
that the Board may fully carry out the obligations imposed upon it by 
the conditions contained in this Application, and said reports, 
materials, and data will be submitted more frequently if deemed 
appropriate by the Board. The obligations of the Participating 
Insurance Companies and Participating Eligible Plans to provide these 
reports, materials, and data to the Board, when it so reasonably 
requests, will be a contractual obligation of all Participating 
Insurance Companies and Participating Eligible Plans under their 
agreements governing their participation in the Funds.
    12. All reports received by the Board of potential or existing 
conflicts, and all Board action with regard to determining the 
existence of a conflict, notifying the Adviser and Participating 
Insurance Companies and Participating Eligible Plans of a conflict, and 
determining whether any proposed action adequately remedies a conflict, 
will be properly recorded in the minutes of the Board or other 
appropriate records, and such minutes or other records will be made 
available to the Commission upon request.
    13. If an Eligible Plan should become an owner of ten percent (10%) 
or more of the assets of a Fund, such Eligible Plan will execute a 
participation agreement with that Fund including the conditions set 
forth herein to the extent applicable. An Eligible Plan will execute an 
application containing an acknowledgment of this condition at the time 
of its initial purchase of shares of the Funds.

Conclusion

    For the reasons set forth above, Applicants represent that the 
exemptions requested are necessary and 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.


[[Page 48996]]


    For the Commission, by the Division of Investment Management, 
pursuant to delegated authority.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 96-23702 Filed 9-16-96; 8:45 am]
BILLING CODE 8010-01-M