[Federal Register Volume 64, Number 178 (Wednesday, September 15, 1999)]
[Notices]
[Pages 50121-50126]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-23992]


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SECURITIES AND EXCHANGE COMMISSION

[Rel. No. IC-23997; File No. 812-11730]


Transamerica Occidental Life Insurance Company, et al.

AGENCY: Securities and Exchange Commission (the ``Commission'' or 
``SEC'').

ACTION: Notice of application for an order pursuant to Section 26(b) of 
the Investment Company Act of 1940 (the ``1940 Act'') approving certain 
substitutions of securities.

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Summary of Application: Applicants request an order to permit a 
registered unit investment trust to substitute securities issued by two 
portfolios of Transamerica Variable Insurance Fund, Inc., a registered 
open-end investment company, and two portfolios of EQ Advisors Trust, a 
registered open-end investment company, for securities issued by four 
portfolios of The Hudson River Trust, a registered open-end investment 
company, currently held by the unit investment trust.

Applicants: Transamerica Occidental Life Insurance Company and Separate 
Account VL of Transamerica Occidental Life Insurance Company 
(collectively, the ``Applicants'').

Filing Date: The application was filed on July 29, 1999, and amended 
and restated on September 7, 1999.

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 September 29, 1999, 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 writer's interest, the reason for the 
request, and the issues contested. Persons who wish to be notified of a 
hearing may request notification by writing to the Secretary of the 
Commission.

ADDRESSES: Secretary, Securities and Exchange Commission, 450 Fifth 
Street,

[[Page 50122]]

NW, Washington, D.C. 20549-0609. Applicants: Transamerica Occidental 
Life Insurance Company, 1150 South Olive Street, Los Angeles, 
California 90015, Attn: Regina M. Fink, Esq.

FOR FURTHER INFORMATION CONTACT: Kevin P. McEnery, Senior Counsel, or 
Susan M. Olson, Branch Chief, 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 
SEC's Public Reference Branch, 450 Fifth Street, N.W., Washington D.C. 
20549-0102 (tel. (202) 942-8090).

Applicants' Representations

    1. Transamerica Occidental Life Insurance Company (``Transamerica 
Occidental'') is a California stock life insurance company. It 
principally engages in the sale of life insurance and annuity policies, 
and is registered as an investment adviser under the Investment 
Advisers Act of 1940, as amended (``Advisers Act''). Transamerica 
Occidental serves as depositor for Separate Account VL of Transamerica 
Occidental Life Insurance Company (``Separate Account VL'').
    2. Transamerica Occidental is an indirect wholly-owned subsidiary 
of Transamerica Corporation. On February 18, 1999, Transamerica 
Corporation announced that it had signed a merger agreement with AEGON 
N.V. (``AEGON'')`, an international insurance group, providing for 
AEGON's acquisition of all of Transamerica Corporation's outstanding 
common stock. The transaction closed in July 1999.
    3. Separate Account VL is a segregated asset account of 
Transamerica Occidental and is registered with the Commission as a unit 
investment trust under the 1940 Act. Separate Account VL is divided 
into four sub-accounts. Separate Account VL funds certain variable life 
insurance policies issued by Transamerica Occidental (the 
``Policies''). The Policies consist of flexible premium individual 
variable life insurance policies. Transamerica Occidental no longer 
offers the Policies, but the Policies are still outstanding and net 
premiums are still accepted.\1\
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    \1\ Applicants represent that, in reliance on a no-action letter 
that they received in 1990 (Transamerica Life Insurance Company 
Separate Account VL, pub. avail. March 16, 1990), they provide 
certain information to Policy owners about their Policies, Separate 
Account VL, and the underlying fund in lieu of filing post-effective 
amendments to the registration statement relating to the Policies 
and delivering updated prospectuses to Policy owners. Applicants 
further represent that their no-action letter is a predecessor to, 
and substantially the same as, Great-West Life Insurance Company 
(pub. avail. Oct. 23, 1990).
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    4. The Hudson River Trust (``HRT'') is organized as a Massachusetts 
business trust. It is registered as an open-end management investment 
company under the 1940 Act, and its shares are registered under the 
Securities Act of 1933 (the ``1933 Act''). HRT is a series investment 
company, as defined by Rule 18f-2 under the 1940 Act, and currently 
offers shares of 14 separate portfolios. HRT sells shares to Separate 
Account VL to serve as an investment medium for the Policies.\2\ The 
shares of four of the HRT portfolios are currently held by Separate 
Account VL and would be involved in the proposed substitutions 
(collectively referred to as the ``Current Funds''). The HRT shares 
held by Separate Account VL currently account for less than 1% of HRT's 
total assets. HRT currently offers two classes of shares, Class 1A and 
Class 1B shares, which differ only in that the Class 1B shares are 
subject to a distribution plan adopted and administered pursuant to 
Rule 12b-1 under the 1940 Act. Separate Account VL holds only Class 1A 
shares. Each Current Fund is advised by Alliance Capital Management 
L.P. (``Alliance''), an investment adviser registered under the 
Advisers Act. As HRT's investment adviser, Alliance is responsible for 
managing the day-to-day investment operations of HRT and exercises 
responsibility for the investment and reinvestment of HRT's assets.
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    \2\ The Commission issued an exemptive order granting exemptions 
from the 1940 Act to permit shares of HRT to be offered to separate 
accounts of affiliated and unaffiliated insurance companies that 
offer either variable life insurance policies or variable annuity 
contracts. See Equitable Variable Life Insurance Company, Investment 
Company Act Rel. Nos. 14899 (Jan. 14, 1986) (order) and 14860 (Dec. 
18, 1985) (notice).
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    5. Transamerica Variable Insurance Fund, Inc. (``TVIF'') is 
organized as a Delaware business trust. It is registered as an open-end 
management investment company under the 1940 Act, and its shares are 
registered under the 1933 Act on Form N-1A. TVIF is a series investment 
company, as defined by Rule 18f-2 under the 1940 Act, and currently has 
nine separate portfolios of shares registered with the Commission. TVIF 
currently sells shares to certain registered separate accounts 
(``Transamerica Separate Accounts'') used as the underlying investment 
options for certain variable annuity contracts and/or variable life 
insurance policies issued by Transamerica Occidental and two of its 
affiliates. Two of the TVIF portfolios (the ``TVIF Funds'') would be 
involved in the proposed substitutions. Transamerica Occidental serves 
as the investment adviser for each of the TVIF Funds, and it has 
engaged Transamerica Investment Services, Inc. to act as the sub-
adviser providing day-to-day portfolio management services to the TVIF 
Funds. TVIF is not a ``multi-manager'' company and has not applied for 
or received any exemptive order from the Commission that would permit a 
change of an investment adviser or sub-adviser, or a change in the 
terms of any advisory agreement, without the approval of shareholders.
    6. EQ Advisors Trust (``EQAT'') is organized as a Delaware business 
trust. It is registered as an open-end management investment company 
under the 1940 Act, and its shares are registered under the 1933 Act on 
Form N-1A. EQAT is a series investment company, as defined by rule 18f-
2 under the 1940 Act, and currently offers 25 separate portfolios of 
shares. EQAT currently sells shares to certain registered and 
unregistered separate accounts (``Equitable Separate Accounts'') used 
as the underlying investment options for certain variable annuity 
contracts and/or variable life insurance policies issued by The 
Equitable Life Assurance Society of the United States (``Equitable''). 
EQAT currently offers two classes of shares, Class IA and Class IB 
shares, which differ only in that the Class IB shares are subject to a 
distribution plan adopted and administered pursuant to Rule 12b-1 under 
the 1940 Act. EQ Financial Consultants, Inc. (``EQ Financial''), an 
indirect wholly-owned subsidiary of Equitable, serves as investment 
manager of each of the current 25 portfolios of EQAT under an 
investment management agreement with EQAT.\3\ EQ Financial is an 
investment adviser registered under the Advisers Act and a broker-
dealer registered under the Securities Exchange Act of 1934, as 
amended. Pursuant to the investment management agreement, the 
investment manager (``Manager'') is responsible for the general 
management and administration of EQAT, including selecting the 
investment advisers for each of EQAT's portfolios (``Advisers''), 
monitoring their investment programs and results, reviewing brokerage 
matters, overseeing compliance issues, and carrying out the directives 
of the

[[Page 50123]]

Board of Trustees. EQAT has received an exemptive order from the 
Commission (``Multi-Manager Order'') that permits EQ Financial, or any 
entity controlling, controlled by, or under common control (within the 
meaning of Section 2(a)(9) of the 1940 Act) with EQ Financial, subject 
to certain conditions, including approval of the Board of Trustees of 
EQAT, and without the approval of shareholders, to: (a) employ a new 
Adviser or Advisers for any portfolio pursuant to the terms of a new 
Investment Advisory Agreement, in each case either as a replacement for 
an existing Adviser or as an additional Adviser; (b) change the terms 
of any Investment Advisory Agreement; and (c) continue the employment 
of an existing Adviser on the same contract terms where a contract has 
been assigned because of a change of control of the Adviser.\4\ In such 
circumstances, Policy owners would receive notice of any such action, 
including information concerning any new Adviser, that normally is 
provided in proxy materials.
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    \3\ On July 12, 1999, the Board of Trustees of EQAT approved a 
transfer of the Investment Management Agreement to Equitable. That 
transfer of the Investment Management Agreement is expected to occur 
prior to October 1, 1999.
    \4\ See EQ Advisors Trust and EQ Financial Consultants, Inc., 
Investment Company Act Rel. Nos. 23128 (April 24, 1998) (order) and 
23-093 (March 30, 1998) (notice). Before an Alliance Fund many rely 
on the Multi-Manager Order, the operation of that Alliance fund as a 
multi-manager fund, as described in the application for the Multi-
Manager Order, will be approved, following the substitutions 
proposed in the application, by a majority of that Alliance Fund's 
outstanding voting securities in a manner consistent with the EQAT 
Shared Funding Order. See note 5.
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    7. EQAT has filed a post-effective amendment to its registration 
statement on Form N-1A in order to register 14 new portfolios for which 
Alliance will provide the day-to-day investment advisory services 
(``Alliance Funds''), including the two portfolios (the ``EQAT Funds'') 
that the Applicants propose to substitute for two of the Current Funds. 
The Applicants represent that the Manager of the 25 current portfolios 
of EQAT will also serve as Manager of the EQAT funds and that Alliance 
will serve as the portfolio manager (adviser) to each of the EQAT 
Funds, just as it serves as portfolio manager to each of the 
corresponding Current Funds. EQAT intends to sell shares of the EQAT 
Funds to, among others, the Equitable Separate Accounts, as well as the 
Separate Account VL and other insurance company separate accounts.\5\
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    \5\ The Commission has issued an order granting exemptions for 
the 1940 Act to permit EQAT shares to be offered to separate 
accounts of affiliated and unaffiliated insurance companies that 
offer either variable life insurance policies or annuity contracts 
(``EQAT Shared Funding Order''). See EQ Advisors Trust, Investment 
Company Act Rel. Nos. 22651 (April 30, 1997) (order) and 22602 
(April 4, 1997) (notice).
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    8. The prospectus describing the Policies expressly reserves to 
Transamerica Occidental the right, subject to compliance with 
applicable law, to substitute shares of another portfolio for shares of 
the Current Funds held by Separate Account VL.
    9. Applicants represent that they are not affiliates of HRT, EQAT 
or Equitable.
    10. The Applicants propose to substitute the securities issued by 
the TVIF Funds (Growth and Money Market) for Class IA shares issued by 
two of the Current Funds (Common Stock and Money Market) and to 
substitute Class IA shares issued by the EQAT Funds (Aggressive Stock 
and Balanced) for Class IA shares issued by the other two Current Funds 
(Aggressive Stock and Balanced). The substitutes of the two TVIF Funds 
will be cash transactions. Equitable, directly or through the Equitable 
Separate Accounts, owns over 99% of the shares of the Current Funds. 
Equitable and each Equitable Separate Account that is registered under 
the 1940 Act that currently invests in HRT have filed an application 
with the Commission (``Equitable Application'') requesting, inter alia, 
an order pursuant to Section 26(b) of the 1940 Act, approving the 
substitution of securities issued by the Alliance Funds for the 
securities issued by the 14 portfolios of HRT.\6\ If approved, 
Equitable will redeem more than 99% of HRT's assets in connection with 
those substitutions. Applicants state that, given the very small 
position that Separate Account VL holds in the Current Funds and 
especially considering that the Policies are no longer offered, it is 
their belief that it is reasonable to conclude that, following the 
proposed substitutions by Equitable: (1) The expense level of the 
Current Funds will increase dramatically as a percentage of net assets 
due to the smaller asset base, which is highly unlikely to increase; 
(2) the Current Funds will be difficult to manage in conformity with 
the applicable diversification regulations under the Internal Revenue 
Code of 1986, as amended (``Code''); and (3) the asset levels of the 
Current Funds will be small enough to raise concerns as to whether the 
Current Funds will remain viable investment options Applicants submit 
that, therefore, it is imperative (and in the best interest of the 
Policy owners) that the shares of other comparable funds be substituted 
for shares of HRT held by Separate Account VL.
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    \6\ File No. 812-11602 (filed Apr. 30, 1999, amended and 
restated August 12, 1999).
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    11. The Applicants represent that the TRIF Funds and the EQAT Funds 
will have investment objectives, policies and anticipated risks that 
are either reasonably comparable (in the case of the TVIF Funds) or 
identical in all material respects (in the case of the EQAT Funds) to 
the corresponding Current Funds. The Applicants also state that, since 
the TVIF funds are Transamerica Occidental advised portfolios, the 
quality of reports and service to Policy owners investing in those 
portfolios should improve. The investment objectives of the four 
Current Funds and the corresponding TVIF Funds and EQAT Funds (together 
with the TVIF Funds, the ``New Funds'') are as follows:

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             Current fund                Investment objective           New fund           Investment objective
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HRT Common Stock                       Seeks long-term growth   TVIF Growth............  Seeks to maximize long-
                                        of its capital and                                term growth.
                                        increase in income.
HRT Money Market.....................  Seeks to obtain a high   TVIF Money Market......  Seeks to maximize
                                        level of current                                  current income
                                        income, preserve its                              consistent with
                                        assets and maintain                               liquidity and
                                        liquidity.                                        preservation of
                                                                                          principal.
HRT Aggressive Stock.................  Seeks to achieve long-   EQAT Aggressive Stock..  Seeks to achieve long-
                                        term growth of capital.                           term growth of
                                                                                          capital.
HRT Balanced.........................  Seeks to achieve a high  EQAT Balanced..........  Seeks to achieve a high
                                        return through both                               return through both
                                        appreciation of                                   appreciation of
                                        capital and current                               capital and current
                                        income.                                           income.
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    12. The Applicants state that, with respect to the EQAT Funds, it 
is expected that the management fees (i.e., total paid to the 
investment manager and day-to-day investment advisers) will be the same 
as the management fees

[[Page 50124]]

currently applicable to the corresponding Current Funds. EQ Financial 
currently anticipates that there may be a slight increase in the total 
expense ratios of certain of the EQAT Funds as compared to those of the 
corresponding Current Funds. The Applicants represents that the chart 
below shows: (a) the management fees and total expenses for Class IA 
shares of each of the Current Funds for the year ending December 31, 
1998, (b) the management fees and total expenses of TVIF Growth and 
Money Market Portfolios for the year ended December 31, 1998 (after fee 
waivers and/or expense reimbursements); and (c) the anticipated 
management fees and other expenses for the Class IA shares of the EQAT 
Aggressive Stock and Balanced Portfolios for their first year of 
operations. Anticipated management fees and other expenses for the EQAT 
Funds are presented on a pro forma basis and are based on the audited 
financial statements of HRT for the year ended December 31, 1998.

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                                                                                                  Total expenses
                                     Management     Total                            Management   (percentage of
                                        fees       expenses                             fees      average daily
       Current fund expenses        (percentage  (percentage   New fund  expenses   (percentage    net assets)
                                     of average   of average                         of average   (after waivers
                                     daily net     daily net                         daily net        and/or
                                      assets)      assets)                            assets)    reimbursement*)
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HRT Common Stock..................         0.36         0.39  TVIF Growth.........         0.64           0.85
HRT Money Market..................         0.35         0.37  TVIF Money Market...         0.00           0.60
HRT Aggressive Growth.............         0.54         0.56  EQAT Aggressive              0.54           0.57
                                                               Stock (pro forma).
HRT Balanced......................         0.41         0.45  EQAT Balanced (pro           0.41           0.46
                                                               forma).
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* Without such waivers/reimbursements, total expenses would have been 0.96% for TVIF Growth, and 3.03% for TVIF
  Money Market (consisting of 0.35% for TVIF Money Market management fees and 2.68% of other expenses). TVIF's
  investment adviser has agreed to waiver its management fee and/or reimbursement expenses for the two New Funds
  so the total fees and expenses do not exceed these total figures for at least one year. Such waivers or
  reimbursements are voluntary but are expected to continue beyond one year.

    13. The Applicants state that the TVIF Funds (Growth and Money 
Market) have enjoyed investment performance that is better than, or 
comparable to, that of the Current Funds (Common Stock and Money 
Market). The Applicants represent that the tables below show the past 
investment performance (after expenses) of the Class IA shares of the 
two Current Funds (Common Stock and Money Market), and the past 
performance (after expenses) of the TVIF Funds (Growth and Money 
Market). In addition to the investment performance information below, 
the Applicants represent that the 7-day yield as of July 31, 1999, for 
the HRT Money Market Portfolio was 4.33% and 4.60% for the TVIF Money 
Market Portfolio.

  Current Funds--Average Annual Total Returns (Periods Ended 12/31/98)
------------------------------------------------------------------------
                                     One year    Five years   Ten years
           Current fund             (percent)    (percent)    (percent)
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HRT Common Stock.................        29.39        21.95        18.65
HRT Money Market.................         5.34         5.17         5.58
------------------------------------------------------------------------


    TVIF Funds--Average Annual Total Returns (Periods Ended 12/31/98)
------------------------------------------------------------------------
                                     One year    Five years   Ten years
            TVIF fund               (percent)    (percent)    (percent)
------------------------------------------------------------------------
TVIF Growth......................        43.28        34.37        26.05
TVIF Money Market*...............         4.93          N/A          N/A
------------------------------------------------------------------------
* Inception date, January 2, 1998.

    14. The Applicants state that, as soon as practicable after the 
application is noticed, they will send a notice to all Policy owners. 
The notice will describe each of the New Funds, identify each Current 
Fund that is being replaced and disclose the anticipated impact of the 
substitutions on fees and expenses at the underlying fund level. The 
Applicants state that a prospectus for the New Funds will be sent to 
all Policy owners before the substitutions are effected. Confirmation 
of the substitutions will be sent to affected Policy owners within five 
days after the substitutions are effected.
    15. The Applicants state that the substitutions will be effected by 
redeeming shares of the Current Funds on the effective date of the 
substitutions proposed herein and in the Equitable Application 
(``Substitution Date'') at net asset value and using the proceeds to 
purchase shares of the New Funds at net asset value on the same date. 
The transactions involving the TVIF Funds will be cash transactions. 
Based on the Equitable Application and information otherwise provided 
by Equitable, Applicants expect that the substitutions involving the 
EQAT Funds will be effected by redeeming shares of the corresponding 
Current Funds in-kind and contributing those assets in-kind to the 
corresponding New Fund to purchase shares of the New fund (``in-kind 
transactions''). In-kind transactions will be done in a manner 
consistent with the investment objectives, policies and diversification 
requirements of each corresponding New Fund. The Manager of each New 
Fund will review the in-kind transactions to assure that the assets are 
suitable for the New Fund. All assets subject to in-kind redemption and 
repurchase will be valued based on the normal valuation procedures of 
the redeeming and repurchasing funds, as set forth in the HRT and EQAT 
registration statements. No transfer or similar charges will be imposed 
on Policy owners by the Applicants and, on the Substitution Date, all 
Policy values

[[Page 50125]]

will remain unchanged and fully invested.
    16. The significant terms of the substitutions described above 
include:
    a. The New Funds have investment objectives, investment policies, 
and anticipated risks that are either reasonably comparable or 
identical in all material respects to those of the Current Funds, and 
have been selected to satisfy the Policy owners' objectives in choosing 
their Current Funds. The Applicant note that the EQAT Funds will 
continue to employ the same portfolio managers currently employed by 
the corresponding Current Funds, and are intended to mirror the 
investment options provided by the corresponding Current Funds.
    b. The fees and expenses of the EQAT funds will in all cases be 
substantially similar to those of the corresponding Current Funds, 
assuming that the asset levels of the EQAT Funds do not decrease 
significantly from the Current Funds' present asset levels. The 
Applicants note in this regard that given the substantial similarity of 
the EQAT Funds and the corresponding Current Funds, Applicants do not 
expect there to be a reduction in the asset levels of the EQAT Funds as 
a result of the substitutions.
    c. Policy owners may transfer assets the subaccounts available 
under their Policy without the imposition of any fee, charge, or other 
penalty that might otherwise be imposed from the date of the initial 
notice through a date at least 30 days following the Substitution Date.
    d. The substitutions, in all cases, will be effected at the net 
asset value of the respective shares of the Current Fund and the 
corresponding New Fund in conformity with Section 22(c) of the 1940 Act 
and Rule 22c-1 thereunder, without the imposition of any transfer or 
similar charge by the Applicants, and with no charge in the amount of 
any Policy owner's Policy value.
    e. Policy owners will not incur any fees or charges as a result of 
the proposed substitutions, nor will their rights or Transamerica 
Occidental's obligations under the Policies be altered in any way. 
Equitable and/or Transamerica Occidental will bear all expenses 
incurred in connection with the proposed substitutions and related 
filings and notices, including legal, accounting, brokerage and other 
fees and expenses. There will be not tax consequences to Policy owners. 
The proposed substitutions will not cause the fees and charges 
currently being paid by existing Policy owners to be greater after the 
proposed substitutions than before the proposed substitutions.
    f. Redemptions in-kind and contributions in-kind will be done in a 
manner consistent with the investment objectives, policies and 
diversification requirements, of the applicable Current and New Funds, 
and the Manger will review the in-kind transactions to assure that the 
assets are suitable for the New Fund. Consistent with Rule 17a-7(d) 
under the 1940 Act, no brokerage commissions, fees (except customary 
transfer fees) or other remuneration will be paid in connection with 
the in-kind transactions.
    g. The Applicants will not count the substitutions as new 
investment selections in determining the limit, if any, on the total 
number of funds that Policy owners can select during the life of a 
Policy.
    h. The substitutions will not alter in any way the life insurance 
benefits, tax benefits or any Policy obligations of the Applicants 
under the Policies.
    i. Policy owners may withdraw amounts under the Policies or 
terminate their interest in a Policy, under the conditions that 
currently exist, including payment of any applicable withdrawal or 
surrender charge.
    j. Policy owners affected by the substitutions will be sent written 
confirmation of the substitutions that identify each substutition made 
on behalf of that Policy owner within five days following the 
Substition Date.
    k. Before an EQAT Fund may rely on the Multi-Manager Order, the 
operation of that EQAT Fund as a multi-manager fund, as described in 
the application for the Multi-Manager Order, will be approved, 
following the substitutions proposed herein, by a majority of that EQAT 
Fund's outstanding voting securities in a manner consistent with the 
terms of the EQAT Shared Funding Order.
    17. The Applicants state that they will not complete the 
substitutions as described in the application unless all of the 
following conditions are met:
    a. The Commission will have issued an order approving the 
substitutions under Section 26(b) of the 1940 Act.
    b. The Commission will have issued an order approving the Equitable 
Application.
    c. Each Policy owner will have been mailed: (1) the disclosure of 
the proposed substitutions shortly after notice of the application has 
been published; and (2) an effective prospectus for the New Funds and 
relevant information about the proposed substitutions prior to the 
Substitution Date.
    d. The Applicants will have satisfied themselves that the Policies 
allow the substitution of portfolios as described in the application, 
and that the transactions can be consummated as described herein under 
applicable insurance laws and under the Policies.
    e. The Applicants will have complied with any regulatory 
requirements they believe are necessary to complete the transactions in 
each jurisdiction where the Policies have been sold.

Applicants' Legal Analysis

    1. Section 26(b) of the 1940 Act provides that it shall be unlawful 
for any depositor or trustee of a registered unit investment trust 
holding the security of a single issuer to substitute another security 
for such security unless the Commission shall have approved such 
substitution. Section 26(b) further provides that the Commission shall 
issue an order approving such substitution if the evidence establishes 
that it is consistent with the protection of investors and the purposes 
fairly intended by the policies and provisions of the 1940 Act.
    2. The Applicants submit that the prospectus describing the 
Policies expressly reserves to Transamerica Occidental the right, 
subject to compliance with applicable law, to substitute shares of 
another portfolio for shares of the Current Funds held by Separate 
Account VL. Transamerica Occidental asserts that it has reserved this 
right of substitution both to protect itself and its Policy owners in 
situations where either might be harmed or disadvantaged by events 
beyond their control, affecting the issuer of the securities held by a 
Separate Account and to preserve the opportunity to replace such shares 
in situations where a substitution could benefit itself and its Policy 
owners. The Applicants assert that Equitable's decision to close down 
HRT has forced Transamerica Occidental to use this reserved right to 
protect its Policy owners.
    3. The Applicants maintain that the proposed substitutions protect 
Policy owners by: (1) providing an underlying investment option for 
such subaccounts that is comparable to the current investment option; 
and (2) eliminating Current Funds that will not be viable due to the 
extremely low level of assets following the proposed substitutions by 
Equitable.
    4. The Applicants further submit that the proposed substitutions 
meet the standards that the Commission and its staff generally have 
applied to other substitutions that have been approved. In addition, 
the Applicants contend that none of the proposed substitutions is the 
type of substitution that Section 26(b) was designed to prevent. Unlike 
traditional unit investment trusts, the

[[Page 50126]]

Policies provide each Policy owner with the right to exercise his own 
judgment and transfer Policy values into any other available variable 
and/or fixed investment options. Additionally, the Applicants state 
that the proposed substitutions will not, in any material manner, 
reduce the number, nature, or quality of the available investment 
options. The Applicants assert that the Policy owners will be offered 
the opportunity to transfer amounts among the available subaccounts 
without any cost or other penalty that may otherwise have been imposed 
until thirty days after the Substitution Date. For these reasons, the 
Applicants maintain that the proposed substitutions will not result in 
the type of costly forced redemptions and sales loads that Section 
26(b) was designed to prevent.
    5. The Applicants further submit that the proposed substitutions 
also are unlike the type of substitution that Section 26(b) was 
designed to prevent in that by purchasing a Policy, Policy owners 
select much more than a particular underlying fund in which to invest 
their Policy values. The Policy owners also select the specific type of 
insurance coverage offered by the Applicants under the applicable 
Policy, as well as numerous other rights and privileges set forth in 
the Policy. The Applicants state that it is likely that, in choosing to 
purchase a Policy from Transamerica Occidental, the Policy owner also 
may have considered the company's size, financial condition, and 
reputation for service in selecting the Policy, and that none of these 
considerations and factors will change as a result of the proposed 
substitutions.
    6. Applicants state that the investment performance of the two 
proposed TVIF Funds is better than, or at least comparable to, that of 
the relevant HRT Portfolios. The average annual returns of the TVIF 
Growth Portfolio for one, five, and ten-year periods are substantially 
higher than the returns of the HRT Growth Portfolio. With respect to 
the TVIF Money Market Portfolio, Applicants state that its 7-day yield 
of 4.60% and effective yield of 4.71% as of July 31, 1999, are 
substantially better than the yield figures of the HRT Money Market 
Portfolio for the same period (4.33% and 4.42%, respectively). The 
average annual total returns for the one-year period ended December 31, 
1998, for the HRT Money Market and TVIF Money Market portfolios was 
5.34% and 4.93%, respectively.
    7. The annual operating expenses of the two TVIF Funds have 
historically been higher than the expenses of the comparable HRT 
Portfolios. Applicants argue that the superior performance of the TVIF 
Growth Portfolio overwhelms the minor differences in operating expenses 
and that, as of July 31, 1999, the TVIF Money Market Portfolio's yield 
substantially exceeds the yield of the HRT Money Market Portfolio.
    8. Applicants submit that past operating expense levels may or may 
not be the same in future years, especially for new portfolios like 
TVIF Money Market, which commenced operations on January 2, 1998. 
Applicants state that as its assets increase (increased from $6.1 
million on January 31, 1999, to $10.7 million on July 1, 1999) 
operating expenses are likely to decrease.
    9. Applicants also submit that Section 26(b) was intended for 
situations where the depositor of the unit investment trust initiated 
the substitution (and where investors would directly or indirectly, be 
forced to bear additional sales charges). Here, Applicants state that 
Transamerica Occidental did not initiate or instigate the proposed 
substitutions; rather Equitable instigated it. In response to that, 
Applicants argue that Transamerica Occidental is taking prudent, 
appropriate steps to protect its Policy owners, and to continue to 
fulfill the Policy owner's objectives in purchasing their variable life 
insurance policies from Transamerica Occidental and making their 
original investment selections.
    10. Applicants submit that, for all the reasons summarized above, 
the proposed substitutions of two portfolios of TVIF and two portfolios 
of EQAT are good choices, and consistent with the protection of 
investors and the purposes fairly intended by the policy and purposes 
of the 1940 Act in general, and Section 26(b) in particular.

Conclusion

    Applicants assert that, for the reasons summarized above, the 
requested order approving the substitutions should be granted.

    For the Commission, by the Division of Investment Management, 
pursuant to delegated authority.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 99-23992 Filed 9-14-99; 8:45 am]
BILLING CODE 8010-01-M