[Federal Register Volume 61, Number 181 (Tuesday, September 17, 1996)]
[Notices]
[Pages 48998-49002]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23776]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[Rel. No. IC-22216; File No. 812-9994]
Transamerica Occidental Life Insurance Company, et al.
September 11, 1996.
AGENCY: Securities and Exchange Commission (``Commission'' or ``SEC'').
ACTION: Notice of application for an order under the Investment Company
Act of 1940 (the ``1940 Act'').
-----------------------------------------------------------------------
APPLICANTS: Transamerica Occidental Life Insurance Company
(``Transamerica''), Transamerica Occidental's Separate Account Fund C
(``Old Account''), Transamerica Variable Insurance Fund, Inc.
(``Fund''), Transamerica Securities Sales Corporation (``TSSC''), and
Transamerica Occidental Separate Account C (``New Account'').
RELEVANT 1940 ACT SECTIONS: Order requested under Section 17(b) of the
1940 Act granting exemptions from the provisions of Section 17(a)
thereof, and under Section 6(c) of the 1940 Act granting exemptions
from the provisions of Sections 26(a)(2)(C) and 27(c)(2) thereof.
SUMMARY OF APPLICATION: Applications seek an order: (1) exempting
Transamerica, the Old Account and the Fund from the provision of
Section 17(a) of the 1940 Act, pursuant to Section 17(b) of the 1940
Act, to the extent necessary to permit the transfer of the securities
and other instruments (``portfolio investments'') held by the Old
Account to the Growth Portfolio of the Fund in exchange for shares of
the Growth Portfolio of the Fund; and (2) exempting Transamerica, TSSC,
the New Account, as restructured into a unit investment trust following
the transfer of the Old Account's portfolio investments to the Growth
Portfolio, and certain principal underwriters other than TSSC (``Future
Underwriters'') from the provisions of Sections 26(a)(2)(C) and
27(c)(2) of the 1940 Act, pursuant to Section 6(c) of the 1940 Act, to
the extent necessary to permit the deduction of a mortality and expense
risk change from the New Account under certain variable annuity
contracts.
FILING DATE: The application was field on February 14, 1996, and
amended on August 8, 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 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 7, 1996, 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 requester'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, SEC, 450 5th Street, N.W., Washington, D.C.
20549. Applicants, Regina M. Fink, Esq., Transamerica Occidental Life
Insurance Company, 1150 South Olive Street, Los Angeles, California
90015.
FOR FURTHER INFORMATION CONTACT:
Mark C. Amorosi, Attorney, or Patrice M. 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 Commission.
Applicants' Representations
1. Transamerica, a wholly-owned subsidiary of the Transamerica
Corporation, is a stock life insurance company incorporated in
California. Transamerica is the depositor of the Old Account and will
become the depositor of the New Account pursuant to the proposed
transactions and associated restructuring of the Old Account (the
``Reorganization'').
2. The Old Account was established by Transamerica as a separate
investment account to fund three non-qualified variable annuity
contracts (``Contracts''). The Old Account meets the definition of a
``separate account'' under the 1940 Act and is registered under the
1940 Act as an open-end management investment company. The Old Account
consists of a single portfolio of primarily equity securities. The
investment objective of the Old Account is long-term capital growth.
Transamerica is the investment adviser for the Old Account.
Transamerica has contracted with Transamerica Investment Services,
Inc., a wholly-owned subsidiary of Transamerica Corporation, to act as
the Old Account's sub-adviser.
3. The Fund is registered open-end, diversified management
investment company, established as a Maryland corporation on June 23,
1995. A registration statement on Form N-1A was filed with the
Commission on November 3, 1995. The Fund currently consists of one
investment portfolio: the Growth Portfolio (``Portfolio''). Additional
portfolios may be created from time to time. The Fund initially will
offer its shares solely to the New Account as a funding vehicle for the
variable annuity contracts supported by the New Account. In the future,
the Fund may offer its shares to other insurance company separate
accounts supporting other variable annuity or variable life insurance
contracts and to qualified pension and retirement plans.
4. The investment objective of the Growth Portfolio is long-term
capital growth. Pursuant to an investment advisory agreement and
subject to the authority of the Fund's Board of Directors, Transamerica
will serve as the Portfolio's investment adviser and will engage
Transamerica Investment Services, Inc. to serve as the Fund's sub-
adviser.
5. As part of the Reorganization, TSSC, a wholly-owned subsidiary
of Transamerica Insurance Corporation of California, which is a wholly-
owned subsidiary of Transamerica Corporation, will replace Transamerica
Financial Resources, Inc. as the principal underwriter for the
Contracts. Future Underwriters also may serve as distributors and
principal underwriter for the Contracts. Any such Future Underwriter
will be registered as a broker-dealer under the Securities Exchange Act
of 1934 and will be a member of the National Association of Securities
Dealers, Inc.
[[Page 48999]]
6. As part of the Reorganization, the New Account will be
registered as a unit investment trust on Form N-4 under the 1940 Act.
The New Account will invest exclusively in shares of the Growth
Portfolio.
7. Applicants state that three types of Contracts have been offered
through the Old Account in connection with certain retirement
programs--Annual Deposit, Single Deposit Deferred and Single Deposit
Immediate. Purchase payments made under the Contracts are invested in a
portfolio which is comprised principally of equity securities. The
Contracts are no longer being offered for sale but additional payments
may be made on certain outstanding Contracts.
8. The Annual Deposit Contract and the Single Deposit Deferred
Contract provide deferred variable annuities. The Single Deposit
Immediate Contract provides an immediate variable annuity. The
contracts also provide for, among other things: (a) a variety of
annuity payout options beginning on the retirement date; (b) certain
minimum and maximum initial and subsequent purchase payments; and (c) a
death benefit payable if the annuitant dies before the retirement date.
9. Transamerica deducts an administrative expense charge from each
payment made under the Contracts for record keeping and administrative
functions related to the Contracts and each Contract owner's account.
The charge is guaranteed not to increase and is equal to 2.5% of the
first $15,000 of payments made under the contract, 1.5% of the next
$35,000 of payments made under the Contract, 0.75% of the next $100,000
of payments made under the Contract, and no charge for payments
exceeding $150,000 under the Contract. This charge will continue to be
deducted after the Reorganization and will be deducted in reliance upon
Rule 26a-1 under the 1940 Act.
10. Transamerica deducts a sales charge from each payment made
under the Contracts which is equal to 6.5% of the first $15,000 of
payments made under the Contract, 4.5% of next $35,000 of payments made
under the contract, 2.0% of the next $100,000 of payments made under
the Contract, and no charge for payments exceeding $150,000 under the
contract. The sales charge covers expenses relating to the sales of the
Contracts. Transamerica will continue to deduct the charge after the
Reorganization. Transamerica does not anticipate that the sales charge
has or will generate sufficient revenue to pay the cost of distributing
the Contracts. If these charges are insufficient to cover
Transamerica's expenses, the deficiency will be met from Transamerica's
general account, which may include amounts derived from the charge for
mortality and expense risks.
11. Transamerica will impose a daily charge on the assets of the
New Account to compensate it for bearing certain mortality and expense
risks in connection with the Contracts. The maximum amount of the
mortality and expense risk charge is equal to an effective annual rate
of 1.10% (of which approximately 0.77% is attributable to mortality
risk and approximately 0.33% is attributable to expense risk) of the
value of the net assets of the New Account. This charge is guaranteed
not to increase and will continue to be assessed after the retirement
date (the date the first annuity payment is made under a Contract) if
annuity payments are made on a variable basis.
12. The mortality risk borne by Transamerica arises from its
contractual obligation to make annuity payments (determined in
accordance with the annuity tables and other provisions contained in
the Contracts) regardless of how long all annuitants or any individual
annuitant may live. The mortality risk assumed by Transamerica is the
risk that the persons on whose life annuity payments depend, as a
group, will live longer than Transamerica's actuarial tables predict.
In this event, Transamerica guarantees that annuity payments will not
be affected by a change in mortality experience that results in the
payment of greater annuity income than assumed under the annuity
options in the Contract.
13. The expense risk assumed by Transamerica is the risk that
Transamerica's actual expenses in issuing and administering the
Contracts and operating the New Account will be more than the charges
assessed for such expenses.
14. A fee at an annual rate of 0.30% of the average daily net
assets of the Old Account is charged for Transamerica's advisory
services. Under the proposed restructuring, the Growth Portfolio will
pay Transamerica an advisory fee for managing its investment and
business operations which is expected to be equal to an effective
annual rate of 0.75% of the average daily net assets of the Growth
Portfolio.
15. Transamerica will deduct the aggregate premium taxes paid on
behalf of a particular Contract either from: (a) payments as they are
received; or (b) the accumulated account value when a conversion is
made to provide annuity benefits. Premium taxes currently range up to
3.5%.
16. With respect to Contract outstanding on the date of the
Reorganization, Transamerica has agreed to waive a portion of the
mortality and expense risk charge to the extent that the sum of the
annual expenses to be charged against the Contracts by the New Account
plus the Fund's total annual expenses exceeds the annual expenses that
would have been charged by the Old Account had the Reorganization not
occurred. Any such waiver will remain in effect for the duration of the
Contracts and will operate to prevent Contract owners from being
charged higher overall fees after the Reorganization than before the
Reorganization.\1\
---------------------------------------------------------------------------
\1\ The full 1.10% mortality and expense risk charge is being
deducted from the assets of the Old Account. Under the terms of the
Plan of Reorganization, Transamerica has agreed to waive or
reimburse the mortality and expense risk charge on Contracts
outstanding as of the date of the Reorganization to the extent that
the sum of annual expenses to be charged by the Fund and the New
Account exceeds 1.40% during any year. Applicants currently expect
that the mortality and expense risk charge will be assessed at an
annual rate of 0.55% of the net assets in the New Account.
---------------------------------------------------------------------------
The Proposed Reorganization
1. The Board of Directors of Transamerica, the Board of Managers of
the Old Account, and the Board of Directors of the Fund, including a
majority of the disinterested members of each of the latter two, have
approved an Agreement and Plan of Reorganization (the ``Plan'') and
have each adopted resolutions authorizing (1) the restructuring of the
old Account from a managed separate account to a separate account
organized as a unit investment trust, and (2) the transfer of the
portfolio assets and related liabilities of the Old Account to the
Growth Portfolio in exchange for shares of the Growth Portfolio of
equal value. The Plan is subject to the consideration and approval of
persons entitled to vote with respect to the old Account (the ``Old
Account Voters'').
2. In connection with its approval of the Plan, the Board of
Managers of the Old Account, including a majority of disinterested
members, has determined that the Reorganization is in the best
interests of the Old Account and that the interests of existing
Contract owners will not be diluted as a result of the Reorganization.
The Board of Directors of the Fund, including a majority of
disinterested members, has determined that the Reorganization is in the
best interests of the Fund and that the interests of existing Contract
owners will not be diluted as a result of the Reorganization.\2\
---------------------------------------------------------------------------
\2\ The membership of the Board of Managers of the Old Account
is the same as that of the Board of Directors of the Fund.
---------------------------------------------------------------------------
3. On the closing date of the Reorganization, Transamerica will
[[Page 49000]]
transfer the portfolio assets and related liabilities of the Old
Account to the Growth Portfolio of the Fund in exchange for shares of
the Growth Portfolio of equal value. Transamerica will record shares
issued by the Fund with respect to the Growth Portfolio as assets of
the New Account.\3\ The indirect interests of Contract owners in the
Growth Portfolio immediately following the Reorganization will be equal
to their interest in the Old Account immediately prior to the
Reorganization.
---------------------------------------------------------------------------
\3\ The total net assets of the Old Account will be determined,
in the customary manner, as of the business day immediately
preceding the effective date of the Reorganization. The number of
shares of the Growth Portfolio of the Fund to be issued to the New
Account will be determined by dividing the value of the net assets
to be transferred from the old Account by the net asset value per
share of the Growth Portfolio. Both determinations will be made in
accordance with Section 22(c) and Rule 22c-1.
---------------------------------------------------------------------------
4. The use of a common underlying investment vehicle will enhance
investment flexibility for Contract owners. It is expected that the
Reorganization also will reduce costs through less complex record
keeping for the New Account, administrative efficiencies, and economies
of scale. Contract owners also may benefit to the extent that the
common management of a larger asset base will enhance investment
flexibility and return, and increase the potential for additional
portfolios.
5. The Growth Portfolio will have the same investment objective,
substantially the same investment policies and restrictions, the same
Board of Directors, and the same investment adviser and sub-adviser as
the Old Account, provided such arrangements are approved by the Old
Account Voters. The investment advisory fee for the Growth Portfolio
may be higher than the current management fee charged to the old
Account. The Fund may incur certain other operating expenses which,
when added to the investment advisory fee incurred by the Growth
Portfolio, results in an amount that may exceed the sum of the
investment advisory charge and the other charges currently imposed
against the assets of the Old Account. However, if the annual expenses
to be charged by the Fund and New Account exceed the annual expenses
that would have been charged by the old Account had the Reorganization
not occurred, then, as to Contracts outstanding as of the closing date
of the Reorganization, Transamerica will reduce the mortality and
expense risk charge to fully offset the effect of any and all expenses
of a type or in an amount which would not have been borne by the Old
Account had the Reorganization not occurred.
6. Transamerica will assume all costs to be incurred in effecting
the transactions. The Reorganization will not affect the total amount
of fees and charges assessed, directly or indirectly, under existing
Contracts. Therefore, the Reorganization will not have any adverse
economic impact on Contract owners.
7. Following the Reorganization, Transamerica will offer each
Contract owner the opportunity to instruct Transamerica in voting the
Growth Portfolio shares attributable to that Contract owner on matters
for which Contract owners currently have voting rights. Transamerica
will vote shares of the Growth Portfolio held by the New Account which
are deemed attributable to the Contracts for which instructions are not
provided in proportion to instructions received from the Contract
owners. Shares of the Growth Portfolio held by the New Account which
are not deemed attributable to Contract owners also will be voted in
the same proportions on each issue as the votes received from Contract
owners.
Applicants' Legal Analysis
Affilated Transactions
1. Section 17(a) of the 1940 Act generally prohibits any affiliated
person of a registered investment company, or an affiliated person of
an affiliated person, from selling or purchasing any security or other
property to or from such registered investment company. Section 17(b)
of the 1940 Act provides generally that the Commission may grant an
order exempting a transaction otherwise prohibited by Section 17(a) of
the 1940 Act if evidence establishes that: (1) the terms of the
proposed transaction, including the consideration to be paid or
received, are reasonable and fair and do not involve overreaching on
the part of any person concerned; (2) the proposed transaction is
consistent with the policy of each registered investment company
concerned, as recited in its registration statement and reports filed
under the 1940 Act; and (3) the proposed transaction is consistent with
the general purposes of the 1940 Act.
2. Each applicant may be deemed to be an affiliated person of the
other Applicants or an affiliated person of an affiliated person by
virtue of being under the common control of Transamerica, or having
Transamerica as investment adviser, under Section 2(a)(3) of the 1940
Act, and the Reorganization may be deemed to entail one or more
purchases or sales of securities or property between and among certain
Applicants.
3. Rule 17a-8 under the 1940 Act provides exemptive relief for
sales of substantially all the assets of one registered investment
company to another if such companies are affiliated solely because of
common directors, officers or investment advisers. Because of the
various relationships among them, Applicants state that they may not be
able to rely on Rule 17a-8 in connection with the Reorganization.
Applicants state that they intend to conform to the conditions set
forth in Rule 17a-8, however, including the requirement that a majority
of the independent directors of the Board of Managers of the Old
Account and a majority of the independent directors of the Board of
Directors of the Fund make certain determinations.
4. Applicants maintain that the proposed Reorganization is in the
best interests of the Old Account, benefiting existing Contract owners
by facilitating the future expansion of investment alternatives under
the Contracts. The addition of new investment portfolios with different
investment objectives will be accomplished more economically through
the use of a unit investment trust than by the establishment of a new
management separate account. Applicants also maintain that, to the
extent the Fund is used to fund other separate accounts and qualified
pension and retirement plans, Contract owners will benefit from the
economies of scale involved, particularly with respect to the level of
fixed administrative expenses.
5. Applicants state the conversion of the Old Account from a
management investment company to a unit investment trust will result in
Contract owner interests which, in practical economic terms, do not
differ in any measurable way from such interests immediately prior to
the Reorganization. The exchange of the portfolio assets of the Old
Account for shares of the Growth Portfolio will be effected in
conformity with Section 22(c) of the 1940 Act and Rule 22c-1
thereunder. Transamerica will assume all expenses incurred in preparing
for and carrying out the transactions. In addition, the Fund will be
organized at no expense to the Old Account or Contract owners. As a
result, Contract owners' interests in the New Account immediately after
the transactions will be equal to their former interests in the Old
Account immediately prior to the transactions, and such Contract
owners' interests will not be diluted as a result of the
Reorganization.
[[Page 49001]]
6. Applicants state that the Reorganization will not require the
liquidation of any assets of the Old Account because the Reorganization
will take the form of an exchange of the portfolio investments of the
Old Account for shares of the Growth Portfolio. Because the investment
policies and restrictions of the Growth Portfolio will be identical in
substance to those of the Old Account, the only sales of Old Account
assets following the Reorganization will be those arising in the
ordinary course of business. Therefore, neither the Old Account nor the
Fund will incur any extraordinary costs, such as brokerage commissions,
in effecting the transfer of assets.
7. Applicants state that Transamerica has received a private letter
ruling from the Internal Revenue Service which confirms that the
Reorganization will be a tax-free event.
8. Applicants maintain that because the investment objective of the
Growth Portfolio will be substantially identical to the investment
objectives of the Old Account immediately prior to the Reorganization,
the transactions are consistent with the objectives and policies of the
Old Account and the Growth Portfolio. Applicants state that, in any
case, Transamerica will obtain Contract owner approval of the
transactions by at least the vote required under the 1940 Act to effect
any change in fundamental investment policy. This eliminates any
questions that might otherwise exist as to whether investment in the
Growth Portfolio is in compliance with the investment objective and
policies of the Old Account.
9. Applicants represent that the proposed transactions do not
present any of the issues or abuses that the 1940 Act was designed to
prevent. Moreover, Applicants submit that the proposed transactions
will be effected in a manner consistent with the public interest and
the protection of investors.
Mortality and Expense Risk Charge
1. 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. Section 6(c) of the 1940 Act authorizes the Commission to
grant an exemption from any provision, rule or regulation of the 1940
Act to the extent 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.
2. Applicants request exemptions from Sections 26(a)(2)(C) and
27(c)(2) of the 1940 Act to the extent necessary to permit the
deduction of the 1.10% maximum mortality and expense risk charge from
the assets of the New Account. Applicants also request that the relief
sought herein apply to Future Underwriters.
3. Applicants state that, without the requested relief as to Future
Underwriters, a separate application would have to be filed to request
and obtain exemptive relief for any Future Underwriter. Applicants
assert that these additional requests for exemptive relief would
present no issues under the 1940 Act not already addressed in this
application. Applicants state that if exemptive relief were to be
sought repeatedly with respect to the same issues addressed in this
application, investors would not receive additional protection or
benefit, and investors and the new applicants could be disadvantaged by
increased costs. Applicants argue that the requested relief is
appropriate in the public interest because the relief will promote
competitiveness in the variable annuity market by eliminating the need
for Transamerica to file redundant exemptive applications, thereby
reducing administrative expenses and maximizing efficient use of
resources. Elimination of the delay and the expense of repeatedly
seeking exemptive relief would enhance the ability to take effective
advantage of business opportunities as such opportunities arise.
Applicants submit, for all the reasons stated herein, that their
request for relief with respect to Future Underwriters is necessary and
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.
4. Applicants represent that the level of the mortality and expense
risk charge proposed under the Contracts is within the range of
industry practice for comparable annuity products. This representation
is based upon Transamerica's analysis of publicly available information
regarding comparable contracts of other companies, taking into
consideration the particular annuity features of the comparable
contracts, including such factors as annuity purchase rate guarantees,
death benefit guarantees, other contract charges, the administrative
services performed by Transamerica with respect to the Contracts, the
market for the Contracts, investment options under the Contracts,
payment features, and the tax status of the Contracts. Applicants state
that Transamerica will maintain a memorandum, available to the
Commission upon request, setting forth in detail the products analyzed
in the course of, and the methodology and results, of its review.
5. Transamerica does not anticipate that the sales charge deducted
under the Contracts has or will generate sufficient revenues to pay the
cost of distributing the Contracts. If the sales charge is insufficient
to cover Transamerica's expenses, the deficiency will be met from
Transamerica's general account. Transamerica acknowledges that the
charge for mortality and expense risks may be a source of profit, which
would increase the general assets of Transamerica available to pay
distribution expenses that Transamerica may bear. Under such
circumstances, the charges for mortality and expense risks might be
viewed as providing for some of the costs related to the distribution
of the Contracts.
6. Applicants state that currently there is no distribution
financing arrangement for the Contracts because no new Contracts are
being distributed. However, to the extent new Contracts are sold in the
future, or the continued receipt of payments under the Contracts is
deemed to be a distribution, Transamerica will maintain a memorandum
demonstrating its conclusion that there is a reasonable likelihood that
such distribution financing arrangement will benefit Contract owners
and the New Account.
7. Transamerica's represents that the assets of the New Account
will be invested only in a management investment company which
undertakes, in the event it should adopt a plan for financing
distribution expenses pursuant to Rule 12b-1 under the 1940 Act, to
have such plan formulated and approved by a board of directors, the
majority of whom are not ``interested persons'' of the management
investment company within the meaning of Section 2(a)(19) of the 1940
Act.
Conclusion
Applicants submit that, for the reasons set forth above, the
requested exemption from Section 17(a) of the 1940 Act to permit the
Reorganization meets the standards in Section 17(b) of the 1940 Act. In
this regard, Applicants
[[Page 49002]]
assert that the Reorganization is fair and reasonable, does not involve
overreaching on the part of any person concerned, is consistent with
the policy of each registered investment company concerned, as recited
in its registration statement and reports filed under the 1940 Act, and
is consistent with the provisions, policies and purposes of the 1940
Act.
Applicants further represent that the requested exemptions from
Section 26(a)(2)(C) and 27(c)(2) are necessary and 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,
pursuant to delegated authority.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 96-23776 Filed 9-16-96; 8:45 am]
BILLING CODE 8010-01-M