[Federal Register Volume 64, Number 225 (Tuesday, November 23, 1999)]
[Notices]
[Pages 65746-65752]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-30546]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. IC-24140; File No. 812-11766]


Pacific Life Insurance Company, et al.; Notice of Application

November 17, 1999.
AGENCY: Securities and Exchange Commission (``SEC'' or ``Commission'').

ACTION: Notice of application for an amended order pursuant to Section 
6(c) of the Investment Company Act of 1940 (``1940 Act''), granting 
exemptive relief from 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.

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SUMMARY OF APPLICATION: Applicants seek an order amending an order 
previously issued to permit shares of the Pacific Select Fund (the 
``Fund'') and shares of any other existing or future investment company 
that is designed to fund insurance products and for which Pacific Life 
Insurance Company, or any of its affiliates, may serve as investment 
manager, investment adviser, sub-adviser, administrator, manager, 
principal underwriter or sponsor (the Fund and such other investment 
companies being hereinafter referred to, collectively, as the 
``Insurance Funds''), or shares of any current or future series of any 
Insurance Fund, to be sold to and held by: (1) Separate accounts 
funding variable annuity contracts and scheduled premium and flexible 
premium variable life insurance contracts issued by both affiliated and 
unaffiliated life insurance companies; and (2) qualified pension and 
retirement plans (``Qualified Plans'' or ``Plans'') held outside of the 
separate account context.

Applicants

    Pacific Life Insurance Company (formerly Pacific Mutual Life 
Insurance Company) (``Pacific Life''), Pacific Life & Annuity Company 
(formerly PM Group Life Insurance Company) (``PL&A''), Pacific Select 
Separate Account of Pacific Life Insurance Company (formerly Pacific 
Select Separate Account of Pacific Mutual Life Insurance Company 
(``Pacific Select Account''), Pacific Select Exec Separate Account of 
Pacific Life Insurance Company (``Pacific Select Exec Account''), 
Pacific Select Exec Separate Account of Pacific Life & Annuity 
Insurance Company (``PL&A Account'') (each a ``Separate Account''), and 
the Pacific Select Fund (collectively, the ``Applicants'').

FILING DATES: The application was filed on August 25, 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 on the application by writing to the 
Secretary of the Commission and serving Applicants with a copy of the 
request, personally or by mail. Hearing requests must be received by 
the SEC by 5:30 p.m. on December 13, 1999 and should be 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 the 
hearing by writing to the Secretary of the Commission.

ADDRESSES: Secretary, Commission, 450 Fifth Street, NW, Washington, DC 
20549-0609. Applicants, c/o Robin Yonis Sandlaufer, Esq., Pacific Life 
Insurance Company, 700 Newport Center Drive, Newport Beach, California 
92660.

FOR FURTHER INFORMATION CONTACT:
Paul G. Cellupica, Senior Counsel, or Mark Amorosi, Special Counsel, 
Office of Insurance Products, Division of Investment Management, at 
(202) 942-0670.

SUPPLEMENTARY INFORMATION: The following is a summary of the 
application. The complete application is available for a fee from the 
SEC's Public Reference Branch, 450 Fifth Street, NW, Washington, DC 
20549 (202-942-8090).

Applicants' Representations

    1. The Fund is an open-end management investment company organized 
as a Massachusetts business trust. The Fund issues shares in multiple 
series. Additional series of the Fund and additional Insurance Funds 
may be established in the future.
    2. Pacific Life serves as the investment adviser to the Fund. 
Pacific Mutual Distributors, Inc. (``PMD'') serves as the Fund's 
distributor.
    3. Pacific Life is a life insurance company based in California. 
Pacific Life is authorized to conduct life insurance and annuity 
business in the District of Columbia and all states except New York. 
Pacific Life is a subsidiary of Pacific LifeCorp, a holding company 
which, in turn, is a subsidiary of Pacific Mutual Holding Company, a 
mutual holding company.
    4. PL&A is a life insurance company based in Arizona. PL&A, a 
wholly-owned subsidiary of Pacific Life, is authorized to conduct life 
insurance and annuity business in New York and certain other states.
    5. The Pacific Select Account is registered as a unit investment 
trust under the 1940 Act, and currently is comprised of fourteen 
subaccounts called Variable Accounts. The assets in each Variable 
Account are invested in shares of the corresponding portfolios of the 
Fund, each of which pursues different investment objectives and 
policies. The assets of the Pacific Select Account may not be charged 
with any liabilities arising out of any other business conducted by 
Pacific Life, but the obligations of the Pacific Select Account, 
including benefits related to variable life insurance, are obligations 
of Pacific Life. The Pacific Select Account funds individual flexible 
premium variable life insurance policies.

[[Page 65747]]

    6. The Pacific Select Exec Account is registered as a unit 
investment trust under the 1940 Act, and currently is comprised of 22 
subaccounts called Variable Accounts. The assets in eighteen of the 
Variable Accounts are invested in shares of the corresponding 
portfolios of the Fund, and the assets of four of the Variable Accounts 
are invested in shares of the corresponding portfolios of M Fund, Inc., 
an open-end investment company of the series type registered under the 
1940 Act. The Pacific Select Exec Account will not be charged with any 
liabilities arising out of any other business conducted by Pacific 
Life, but the obligations of the Pacific Select Exec Account, including 
liabilities related to variable life insurance, are obligations of 
Pacific Life. The Pacific Select Exec Account funds individual flexible 
premium variable life insurance policies.
    7. The Pl&A Account is registered as a unit investment trust under 
the 1940 Act and currently is comprised of eighteen subaccounts called 
Variable Accounts. The assets in each of the Variable Accounts are 
invested in shares of the corresponding portfolios of the Fund. The 
PL&A Account will not be charged with any liabilities arising out of 
any other business conducted by PL&A, but the obligations of the PL&A 
Account, including liabilities related to variable life insurance, are 
obligations of PL&A. The PL&A Account funds individual flexible premium 
variable life insurance policies.
    8. An order was issued by the Commission on September 30, 1987 
(``Prior Order'') which, among other things, granted exemptions from 
sections 9(a), 13(a), 15(a), and 15(b) of the 1940 Act and paragraph 
(b)(15) of Rule 6e-3(T) to the extent necessary to permit the Fund to 
be offered to the Pacific Select Account, other registered and 
unregistered separate accounts of Pacific Life or other affiliated life 
insurers that offer variable annuity contracts and flexible premium 
variable life insurance policies, and to separate accounts of 
unaffiliated life insurers offering variable annuity contracts or 
scheduled or flexible premium variable life insurance contracts.
    9. Pacific Life and/or its affiliates have purchased shares of 
certain Portfolios of the Fund in connection with initial capital 
investments. Apart from the investments for initial capital, the Fund 
currently offers its shares only to separate accounts of Pacific Life, 
and therefore serves as an investment medium only for persons who own a 
variable annuity contract or flexible premium variable life insurance 
policy issued or administered by Pacific Life. The Insurance Funds, 
however, intend to offer shares of certain of their existing and future 
series to Qualified Plans. Further, the Insurance Funds may in the 
future offer shares of their existing and future series to separate 
accounts of Pacific Life or its affiliates to serve as the investment 
vehicle for scheduled premium variable life insurance contracts. The 
Prior Order, however, would not permit the Insurance Funds to offer 
their shares to separate accounts funding flexible premium variable 
life insurance policies issued by Pacific Life or its affiliates if the 
Insurance Funds also offered their shares to Qualified Plans. 
Furthermore, the Prior Order would not permit the Insurance Funds to 
offer their shares to Qualified Plans, separate accounts of other 
insurance companies or separate accounts funding variable annuity 
contracts issued by Pacific Life or its affiliates if the Insurance 
Funds also offered their shares to separate accounts funding scheduled 
premium variable life insurance policies issued by Pacific Life or its 
affiliates.

Applicants' Legal Analysis

    1. Applicants request that the Commission issue an order pursuant 
to Section 6(c) of the 1940 Act amending the Prior Order to grant 
exemptions 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 (including any comparable provisions of a permanent rule 
that replaces Rule 64-3(T)), to the extent necessary to permit shares 
of each existing and future series of each Insurance Fund to be sold to 
and held by (1) separate accounts funding variable annuity contracts 
and scheduled premium and flexible premium variable life insurance 
contracts issued by both affiliated and unaffiliated life insurance 
companies; and (2) qualified pension and retirement plans (``Qualified 
Plan'' or ``Plans'') held outside of the separate account context.
    2. Section 6(c) of the 1940 Act authorizes the Commission, by order 
upon application, to conditionally or unconditionally exempt any 
person, security, or transaction, or class or classes of persons, 
securities or transactions, from any provision of the 1940 Act, or the 
rules or regulations thereunder, if and to the extent that such 
exemption is necessary or appropriate in the public interest and 
consistent with the protection of investors and the purposes fairly 
intended by the policy and provisions of the 1940 Act.
    3. In connection with the funding of scheduled premium variable 
life insurance contracts issued through a separate account registered 
under the 1940 Act as a unit investment trust (``Trust Account''), Rule 
6e-2(b)(15) provides partial exemptions from Sections 9(a), 13(a), 
15(a), and 15(b) of the 1940 Act. The exemptions granted to a separate 
account by Rule 6e-2(b)(15) are available only where the management 
investment company underlying the Trust Account (``underlying fund'') 
offers its shares ``exclusively to variable life insurance separate 
accounts of the life insurer or of any affiliated life insurance 
company * * *.'' (emphasis added). For these purposes, a variable life 
insurance separate account refers to a separate account that funds 
scheduled premium variable life insurance contracts. 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 an underlying fund that also offers its shares to a variable 
annuity or a flexible premium variable life insurance separate account 
of the same company or of any affiliated life 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 of the same life insurance company or of any 
affiliated life insurance company is referred to herein as ``mixed 
funding.'' In addition, 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 an underlying fund that also 
offers its shares to separate accounts funding variable contracts of 
one or more unaffiliated life insurance companies. The use of a common 
management company as the underlying investment medium for variable 
life insurance separate accounts of one insurance company and separate 
accounts funding variable contracts of one or more unaffiliated life 
insurance companies is referred to herein as ``shared funding.'' 
Moreover, because the relief under Rule 6e-2(b)(15) is available only 
where shares are offered exclusively to separate accounts, additional 
exemptive relief may be necessary if the shares of the Insurance Funds 
are also to be sold Qualified Plans.
    4. In connection with the funding of flexible premium variable life 
insurance contracts issued through a Trust Account, Rule 6e-3(T)(b)(15) 
provides partial exemptions from Sections 9(a), 13(a), 15(a), and 15(b) 
of the 1940 Act. The exemptions granted to a separate

[[Page 65748]]

account by Rule 6e-3(T) are available only where the Trust Account's 
underlying fund offers its shares ``exclusively to separate accounts of 
the life insurer, or of any affiliated life insurance company, offering 
either scheduled contracts or flexible 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, or which offer 
their shares to any such life insurance company in consideration solely 
for advances made by the life insurer in connection with the operation 
of the separate account * * *.'' (emphasis added). Therefore, Rule 6e-
3(T) permits mixed funding with respect to a flexible premium variable 
life insurance separate account, subject to certain conditions. 
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 an underlying fund that also offers its shares to separate 
accounts (including variable annuity and flexible premium and scheduled 
premium variable life insurance separate accounts) of unaffiliated life 
insurance companies. Because the relief under Rule 6e-3(T) is available 
only where shares are offered exclusively to separate accounts, or to 
life insurers in connection with the operation of a separate account, 
additional exemptive relief may be necessary if the shares of the 
Insurance Funds are also to be sold to Qualified Plans.
    5. The relief granted by Rules 6e-2(b)(15) and 6e-3(T)(b)(15) is in 
no way affected by the purchase of the Insurance Funds' shares by 
Qualified Plans. However, in that the relief under rules 6e-2(b)(15) 
and 6e-3(T)(b)(15) is available only where shares are offered 
exclusively to separate accounts, additional exemptive relief may be 
necessary if the shares of the Insurance Funds are also to be sold to 
Qualified Plans. Applicants therefore request relief in order to have 
the participating insurance companies enjoy the benefits of the relief 
granted in Rules 6e-2(b)(15) and 6e-3(T)(b)(15). Applicants assert that 
if the Insurance Funds were to sell shares only to Qualified Plans and/
or separate accounts funding variable annuity contracts, no exemptive 
relief would be necessary. None of the relief provided for in Rules 6e-
2(b)(15) and 6e-3(T)(b)(15) relates to Qualified Plans or to a 
registered investment company's ability to sell its shares to a 
Qualified Plan. It is only because some of the separate accounts that 
may invest in the Insurance Funds may themselves be investment 
companies that rely upon Rules 6e-2 and 6e-3(T) and that desire to have 
the relief continue in place, that the Applicants are applying for the 
requested relief. If and when a material irreconcilable conflict 
between the separate accounts arises in this context, the participating 
insurance companies must take whatever steps are necessary to remedy or 
eliminate the conflict, including eliminating the Insurance Funds as an 
eligible investment. Applicants have concluded that the inclusion of 
Qualified Plans as eligible shareholders should not increase the risk 
of material irreconcilable conflicts among shareholder. However, 
Applicants further assert that even if a material irreconcilable 
conflict involving the Qualified Plans arose, the Qualified Plans, 
unlike the separate accounts, could redeem their shares and make 
alternative investments. Applicants thus argue that allowing limited 
investment by Qualified Plans in the Insurance Funds should not 
increase the opportunity for conflicts of interest.
    6. Since the Prior Order was issued, regulations under the Internal 
Revenue Code (``the Code'') have been issued that permit shares of an 
investment company to be offered directly to Qualified Plans outside of 
the separate account context as well as to insurance company separate 
accounts. Section 817(h) of the Code imposes certain diversification 
standards on the underlying assets of separate accounts funding 
variable annuity contracts and variable life contracts. The Code 
provides that such contracts shall not be treated as an annuity 
contract or life insurance contract for any period (and any subsequent 
period) for which the separate account investments are not, in 
accordance with regulations prescribed by the Treasury Department, 
adequately diversified. On March 2, 1989, the Treasury Department 
issued Regulations (Treas. Reg. 1.817-5) that established 
diversification requirements for the investment portfolios underlying 
variable annuity and variable life contracts. The Regulations provide 
that, in order to meet the diversification requirements, all of the 
beneficial interests in the investment company must be held by the 
segregated asset accounts of one or more insurance companies. However, 
the Regulations also contain certain exceptions to this requirement, 
one of which allows shares in an investment company to be held by the 
trustee of a qualified pension or retirement plan without adversely 
affecting the ability of shares in the same investment company to also 
be held by the separate accounts of insurance companies in connection 
with their variable annuity and variable life contracts.
    7. In general, Section 9(a) of the 1940 Act disqualifies any person 
convicted of certain offenses, and any company affiliated with that 
person, from acting or serving in various capacities with respect to a 
registered investment company. More specifically, paragraph (3) of 
Section 9(a) provides that it is unlawful for any company to serve as 
investment adviser to or principal underwriter for any registered open-
end investment company if an affiliated person of that company is 
subject to a disqualification enumerated in Sections 9(a) (1) or (2).
    8. Rule 6e-2(b)(15) (i) and (ii) and Rule 6e-3(T)(b)(15) (i) and 
(ii) provide exemptions from Section 9(a) under certain circumstances, 
subject to the limitations discussed above on mixed and shared funding. 
These exemptions limit the application of the eligibility restrictions 
to affiliated individuals or companies that directly participate in the 
management of the underlying management investment company. The relief 
provided by Rules 6e-2(b)(15)(i) and 6e-3(T)(b)(15)(i) permits a person 
disqualified under Section 9(a) to serve as an officer, director, or 
employee of the life insurer, or any of its affiliates, so long as that 
person does not participate directly in the management or 
administration of the underlying fund. The relief provided by Rules 6e-
2(b)(15)(ii) and 6e-3(T)(b)(15)(ii) permits the life insurer to serve 
as the underlying fund's investment adviser or principal underwriter, 
provided that none of the insurer's personnel who are ineligible 
pursuant to Section 9(a) are participating in the management or 
administration of the fund.
    9. The partial relief granted in Rules 6e-2(b)(15) and 6e-
3(T)(b)(15) from the requirements of Section 9 limits, in effect, the 
amount of monitoring of an insurer's personnel that would otherwise be 
necessary to ensure compliance with Section 9 to that which is 
appropriate in light of the policy and purposes of Section 9. 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 the many 
individuals in an insurance company complex, most of whom typically 
will have no involvement in matters pertaining to investment companies 
in that organization. It is also unnecessary to apply Section 9(a) to 
the many individuals in various unaffiliated

[[Page 65749]]

insurance companies (or affiliated companies of participating insurance 
companies) that may utilize the Insurance Funds as the funding medium 
for variable contracts. There is no regulatory purpose in extending the 
monitoring requirements to embrace a full application of Section 9(a)'s 
eligibility restrictions because of mixed funding or shared funding and 
sales to Qualified Plans. Applying the monitoring requirements of 
Section 9(a) because of investment by separate accounts of other 
participating insurance companies or Qualified Plans would be 
unjustified and would not serve any regulatory purpose. Furthermore, 
the increased monitoring costs would reduce the net rates of return 
realized by contractworkers and Qualified Plan participants. Finally, 
because the Qualified Plans are not investment companies and will not 
be deemed affiliates by virtue of their shareholdings, no additional 
relief is required with respect to Qualified Plans. Rules 6e-2 and 6e-
3(T) provide relief from the eligibility restrictions of Section 9(a) 
only for officers, directors or employees of participating insurance 
companies or their affiliates. The eligibility restrictions of Section 
9(a) will still apply to any officers, directors or employees of the 
Adviser or an affiliate who participate directly in the management or 
administration of an Insurance Fund. The monitoring described above 
would not benefit contractowners and Plan participants and would only 
increase costs, thus reducing net rates of return.
    10. Rules 6e-2(b)(15)(iii) and 6e-3(T)(b)(15)(iii) provide partial 
exemptions 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 management investment 
company shares held by a separate account, to permit the insurance 
company to disregard the voting instructions of its contractowners in 
certain limited circumstances. 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 contractowners in connection with the 
voting of shares of an underlying fund if such instructions would 
require such shares to be voted to cause such companies to make (or 
refrain from making) certain investments which would result in changes 
in the subclassification or investment objectives of such companies or 
to approve or disapprove 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 
such Rules). Rules 6e-2(b)(15)(iii)(B) and 6e-3(T)(b)(15)(iii)(A)(2) 
provide that the insurance company may disregard contractowners' voting 
instructions if the contractowners initiate any change in such 
company's investment policies, principal underwriter, or any investment 
adviser (provided that disregarding such voting instructions is 
reasonable and subject to the other provisions of paragraphs (b)(5)(ii) 
and (b)(7)(ii)(B) and (C) of such Rules).
    11. Rule 6e-2 recognizes that a variable life insurance contract is 
an insurance contact; it has important elements unique to insurance 
contracts; and it is subject to extensive state regulation of 
insurance. In adoting Rule 6e-29(b)(15)(iii), the Commission expressly 
recognized that state insurance regulators have authority, pursuant to 
state insurance laws or regulations, to disapprove or require changes 
in investment policies, investment advisers, or principal underwriters. 
The Commission also expressly recognized that state insurance 
regulators have authority to require an insurer to draw from its 
general account to cover costs imposed upon the insurer by a change 
approved by contractowners over the insurer's objection. The Commission 
therefore deemed such exemptions necessary ``to assure the solvency of 
the life insurer and performance of its contractual obligations by 
enabling an insurance regulatory authority or the life insurer to act 
when certain proposals reasonably could be expected to increase the 
risks undertaken by the life insurer.'' In this respect, flexible 
premium variable life insurance contracts are identical to scheduled 
premium variable life insurance contracts; therefore, Rule 6e-3(T)'s 
corresponding provisions undoubtedly were adopted in recognition of the 
same factors.
    12. Applicants maintain that the Insurance Funds' sale of shares to 
Qualified Plans will not have any impact on the relief requests. Shares 
of the Insurance Funds sold to Qualified Plans would be held by the 
trustees of such Plan. The exercise of voting rights by Qualified 
Plans, whether by the trustees, by participants, or by investment 
managers engaged by the Plans, does not present the type of issues 
respecting the disregard of voting rights that are presented by 
variable life separate accounts. With respect to Qualified Plans, which 
are not registered as investment companies under the 1940 Act, there is 
no requirement to pass through voting rights to Plan participants. 
Indeed, to the contrary, applicable law expressly reserves voting 
rights associated with certain types of Plan assets to certain 
specified persons. If a named fiduciary to a Qualified Plan appoints an 
investment manager, the investment manager has the responsibility to 
vote the shares held unless the right to vote such shares is reserved 
to the trustees or the named fiduciary. The Qualified Plan nay have 
their trustee(s) or other fiduciaries exercise voting rights 
attributable to investment securities held by the Qualified Plans in 
their discretion. Certain Qualified Plans, however, may provide for the 
trustee(s), an investment adviser, or another named fiduciary to 
exercise voting rights in accordance with instructions from 
participants. If a Qualified Plan does not provide participants with 
the right to give voting instructions, Applicants do not see any 
potential for material irreconcilable conflicts of interest between or 
among variable contractowners and Plan participants with respect to 
voting of the respective Portfolio's shares. Accordingly, unlike the 
case with insurance company separate accounts, the issue of the 
resolution of material irreconcilable conflicts with respect to voting 
is not present with Qualified Plans.
    13. Applicants state that prohibitions on mixed and shared funding 
might reflect some concern with possible divergent interests among 
different classes of investors. In this regard, applicants assert that 
shared funding does not present any issues that do not already exist 
where a single insurance company is licensed to do business in several 
or all states. A particular state insurance regulatory body could 
require action that is inconsistent with the requirements of other 
states in which the insurance company offers its policies. The fact 
that different participating insurance companies may be domiciled in 
different states does not create a significantly different or enlarged 
problem.
    14. Applicants further assert that shared funding is, in this 
respect, no different than the use of the same investment company as 
the funding vehicle for affiliated participating insurance companies, 
which Rules 6e-2(b)(15) and 6e-3(T)(b)(15) permit under various 
circumstances. Affiliated participating insurance companies may be 
domiciled in different states and be subject to differing state law 
requirements. Affiliation does not reduce the potential, if any exists, 
for differences in state regulatory requirements.

[[Page 65750]]

    15. Applicants submit that the right under Rules 6e-2(b)(15) and 
6e-3(T)(b)(15) of the insurance company to disregard contractowners' 
voting instructions does not raise any issues different from those 
raised by the authority of state insurance administrators over separate 
accounts. Under Rules 6e-2(b)(15) and 6e-3(T)(b)(15), an insurer can 
disregard contractowner voting instructions only with respect to 
certain specified items and under certain specified conditions. 
Affiliation does not eliminate the potential, if any exists, for 
divergent judgments as to the advisability or legality of a change in 
investment policies, principal underwriter, or investment adviser 
initiated by contractowners. The potential for disagreement is limited 
by the requirements in Rules 6e-2 and 6e-3(T) that the insurance 
company's disregard of voting instructions be reasonable and based on 
specific good faith determinations. However, a particular participating 
insurance company's disregard of voting instructions nevertheless could 
conflict with the majority of contractowner voting instructions. The 
participating insurance company's action could arguably be different 
than the determination of all or some of the other participating 
insurance companies (including affiliated insurers) that the 
contractowners' voting instructions should prevail, and could either 
preclude a majority vote approving the change or could represent a 
minority view. If the participating insurance company's judgment 
represents a minority position or would preclude a majority vote, the 
participating insurance company may be required, at an Insurance Fund's 
election, to withdraw its separate account's investment in the 
Insurance Fund, and no charge or penalty would be imposed as a result 
of such withdrawal.
    16. With respect to voting rights, it is possible to provide an 
equitable means of giving such voting rights to contractowners and to 
Qualified Plans. The transfer agent for the Insurance Funds will inform 
each shareholder, including each separate account and each Qualified 
Plan, of its share ownership in an Insurance Fund. Each participating 
insurance company will then solicit voting instructions in accordance 
with the ``pass-through'' voting requirement. Investment by Qualified 
Plans in any Insurance Fund will similarly present no conflict. The 
likelihood that voting instructions of insurance company separate 
account holders will ever be disregarded or that the possible 
withdrawal referred to immediately above will occur is extremely remote 
and this possibility will be known, through prospectus disclosure or 
disclosure in a Statement of Additional Information to any Qualified 
Plan choosing to invest in an Insurance Fund. Moreover, even if a 
material irreconcilable conflict involving Qualified Plans arises, the 
Plans may simply redeem their shares and make alternative investments. 
Votes cast by the Qualified Plans, of course, cannot be disregarded but 
must be counted and given effect.
    17. Applicants submit that there is no reason why the investment 
policies of an Insurance Fund, or a series thereof, would or should be 
materially different from what they would or should be if such 
Insurance Fund or series funded only variable annuity contracts or 
variable life insurance polices, whether flexible premium or scheduled 
premium policies. Each type of insurance product is designed as a long-
term investment program. Similarly, the investment strategy of 
Qualified Plans--long-term investment--coincides with that of variable 
contracts and should not increase the potential for conflicts. Each 
Insurance Fund, or series thereof, will be managed to attempt to 
achieve its investment objective, and not to favor or disfavor any 
particular participating insurance company or type of insurance product 
or other investor. There is no reason to believe that different 
features of various types of contracts will lead to different 
investment policies for different types of variable contracts. The sale 
and ultimate success of all variable insurance products depends, at 
least in part, on satisfactory investment performance, which provides 
an incentive for the participating insurance company to seek optimal 
investment performance.
    18. Furthermore, Applicants assert that no one investment strategy 
can be identified as appropriate to a particular insurance product. 
Each pool of variable annuity and variable life insurance 
contractowners is composed of individuals of diverse financial status, 
age, insurance and investment goals. A fund supporting even one type of 
insurance product must accommodate these diverse factors in order to 
attract and retain purchasers. Permitting mixed and shared funding will 
provide economic justification for the growth of the Insurance Funds. 
In addition, permitting mixed and shared funding will facilitate the 
establishment of additional series serving diverse goals. The broader 
base of contractowners can also be expected to provide economic 
justification for the creation of additional series of each Insurance 
Fund with a greater variety of investment objectives and policies.
    19. Applicants note that Section 871(h) of the Code imposes certain 
diversification standards on the underlying assets of variable annuity 
contracts and variable life contracts held in the portfolios of 
management investment companies. Treasury Regulation 1.817-
5(f)(3)(iii), which established diversification requirements for such 
portfolios, specifically permits, among other things, ``qualified 
pension or retirement plans'' and separate accounts to share the same 
underlying management investment company. Therefore, neither the Code, 
the Treasury Regulations nor Revenue Rulings thereunder present any 
inherent conflicts of interest if Qualified Plans, variable annuity 
separate accounts and variable life separate accounts all invest in the 
same management investment company.
    20. Applicants submit that the ability of the Insurance Funds to 
sell their respective shares directly to Qualified Plans does not 
create a ``senior security,'' as such term is defined under Section 
18(g) of the 1940 Act, with respect to any contractowner as opposed to 
a participant under a Qualified Plan. As noted above, regardless of the 
rights and benefits of contractowners or participants under the 
Qualified Plans, the Qualified Plans and the separate accounts have 
rights only with respect to their respective shares of the insurance 
Funds. They can only redeem such shares at their net asset value. No 
shareholder of any of the Insurance Funds has any preference over any 
other shareholder with respect to distribution of assets or payment of 
dividends.
    21. Applicants submit that various factors have limited the number 
of insurance companies that offer variable annuities and variable life 
insurance policies. 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 of 
certain participating insurance companies as investment experts. In 
particular, 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 
the Insurance Funds as a common investment medium for variable 
contracts and Qualified Plans would help alleviate these concerns, 
because participating insurance companies and Qualified Plans will

[[Page 65751]]

benefit not only from the investment and administrative expertise of 
Pacific Life, or any other investment adviser to an Insurance Fund or 
series, but also from the cost efficiencies and investment flexibility 
afforded by a large pool of funds. Therefore, making the Insurance 
Funds available for mixed and shared funding and permitting the 
purchase of Insurance Fund shares by Qualified Plans may encourage more 
insurance companies to offer variable contracts, and this should result 
in increased competition with respect to both variable contract design 
and pricing, which can be expected to result in more product variation.
    23. Mixed and shared funding also may benefit variable 
contractowners by eliminating a significant portion of the costs of 
establishing and administering separate funds. Furthermore, granting 
the requested relief should result in an increased amount of assets 
available for investment by the insurance Funds. This may benefit 
variable contractowners by promoting economies of scale, by permitting 
increased safety through greater diversification, or by making the 
addition of new portfolios more feasible.

Applicants' Conditions

    Applicants consent to the following conditions if an order is 
granted:
    1. A majority of the Board of Trustees or Board of Directors (The 
``Board'') of each Insurance Fund shall consist of persons who are not 
``interested persons'' of the Insurance 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 or director, then the operation of this 
condition shall be suspended: (i) For a period of 45 days if the 
vacancy or vacancies may be filled by the Board; (ii) for a period of 
60 days if a vote of shareholders is required to fill the vacancy or 
vacancies; or (iii) for such longer period as the Commission may 
prescribe by order upon application.
    2. Each Board will monitor the Insurance Fund for the existence of 
any material irreconcilable conflict among and between the interests of 
the contractowners of all separate accounts and of Plan participants 
investing in the Insurance Funds, and determine what action, if any, 
should be taken in response to such conflicts. A material 
irreconcilable conflict may arise for a variety of reasons, including: 
(1) An action by any state insurance regulatory authority; (ii) a 
change in applicable federal or state insurance, tax, or securities 
laws of regulations, or a public ruling, private letter ruling, no-
action or interpretative letter, or any similar action by insurance, 
tax or securities regulatory authorities; (iii) an administrative or 
judicial decision in any relevant proceeding; (iv) the manner in which 
the investments of any Insurance Fund or series are being managed; (v) 
a difference in voting instructions given by variable annuity 
contractowners and variable life insurance contractowners and Plan 
trustees or participants; and (vi) a decision by a participating 
insurance company to disregard the voting instructions of 
countractowners; or (vii) if applicable, a decision by a Qualified Plan 
to disregard the voting instructions of Plan participants.
    3. Any Qualified Plan that executes a fund participation agreement 
upon becoming an owner of 10% or more of the assets of an Insurance 
Fund and any participating insurance company (collectively, 
``Participants'') will report any potential or existing conflicts to 
the Board. Participants will be responsible for assisting 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 contractowner voting instructions are disregarded and, if 
pass-through voting is applicable, an obligation by each Qualified Plan 
that is a Participant to inform the Board whenever it has determined to 
disregard Plan participant voting instructions. The responsibility to 
report such information and conflicts and to assist the Board will be a 
contractual obligation of all Participants investing in an Insurance 
Fund under their agreements governing participation in the Insurance 
Fund, and such agreements shall provide that such responsibilities will 
be carried out with a view only to the interests of the contractowners 
or, if applicable, Plan participants.
    4. If it is determined by a majority of the Board of an Insurance 
Fund, or a majority of its disinterested trustees or directors, that a 
material irreconcilable conflict exists, the relevant participating 
insurance companies and Qualified Plans shall, at their expense or, at 
the discretion of the investment adviser to an Insurance Fund, at that 
investment adviser's expense, and to the extent reasonably practicable 
(as determined by a majority of the disinterested trustees or 
directors), take whatever steps are necessary to remedy or eliminate 
the material irrconcilable conflict, up to and including: (i) 
Withdrawing the assets allocable to some or all of the separate 
accounts from the relevant Insurance Fund or any series therein and 
reinvesting such assets in a different investment medium (including 
another series, if any, of such Insurance Fund); (ii) in the case of 
participating insurance companies, submitting the question of whether 
such segregation should be implemented to a vote of all affected 
contractowners and, as appropriate, segregating the assets of any 
appropriate group (i.e., variable annuity contractowners or variable 
life insurance contractowners of one or more participating insurance 
companies) that votes in favor of such segregation, or offering to the 
affected contractowners the option of making such a change; and (iii) 
establishing a new registered management investment company or managed 
separate account. If a material irreconcilable conflict arises because 
of a participating insurance company's decision to disregard 
contractowner voting instructions and that decision represents a 
minority position or would preclude a majority vote, the participating 
insurance company may be required, at the Insurance Fund's election, to 
withdraw its separate account's investment in the Insurance Fund, and 
no charge or penalty will be imposed as a result of such withdrawal. If 
a material irreconcilable conflict arises because of a Qualified Plan's 
decision to disregard Plan participant voting instructions, if 
applicable, and that decision represents a minority position or would 
preclude a majority vote, the Qualified Plan may be required, at the 
election of the Insurance Fund, to withdraw its investment in the 
Insurance Fund, and no charge or penalty will be imposed as a result of 
such withdrawal. The responsibility to take remedial action in the 
event of a Board determination of a material irreconcilable conflict 
and to bear the cost of such remedial action shall be a contractual 
obligation of all participating insurance companies and Qualified Plans 
under their agreements governing participation in the Insurance Fund, 
and these responsibilities will be carried out with a view only to the 
interests of the contractowners or, as applicable, Plan participants.
    5. For the purposes of Condition 4, a majority of the disinterested 
members of the Board shall determine whether or not any proposed 
actions adequately remedies any material irreconcilable conflict, but 
in no event will the

[[Page 65752]]

Insurance Fund or its investment adviser be required to establish a new 
funding medium for any variable contract. No participating insurance 
company shall be required by 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 contractowners materially adversely affected 
by the material irreconcilable conflict. No Qualified Plan shall be 
required by Condition 4 to establish a new funding medium for such 
Qualified Plan if (a) a majority of Plan participants materially and 
adversely affected by the material irreconcilable conflict vote to 
decline such offer or (b) pursuant to governing Plan documents and 
applicable law, the Plan makes such decision without Plan participant 
vote.
    6. The Board's determination of the existence of a material 
irreconcilable conflict and its implications shall be made known 
promptly in writing to all Participants.
    7. Participating insurance companies will provide pass-through 
voting privileges to all variable contractowners whose contracts are 
funded through a registered separate account for so long as the 
Commission continues to interpret the 1940 Act as requiring pass-
through voting privileges for variable contractowners. Accordingly, 
such participating insurance companies will vote shares of each 
Insurance Fund or series thereof held in their registered separate 
accounts in a manner consistent with timely voting instructions 
received from such contractowners. Each participating insurance company 
will vote shares of each Insurance Fund or series held in its 
registered separate accounts for which no timely voting instructions 
are received, as well as shares held by any such registered separate 
account, in the same proportion as those shares for which voting 
instructions are received. Participating insurance companies shall be 
responsible for assuring that each of their separate accounts investing 
in an Insurance Fund calculates voting privileges in a manner 
consistent with all other participating insurance companies. The 
obligation to vote an Insurance Fund's shares and to calculate voting 
privileges in a manner consistent with all other registered separate 
accounts investing in an Insurance Fund shall be a contractual 
obligation of all participating insurance companies under their 
agreements governing participation in the Insurance Fund. Each Plan 
will vote as required by applicable law and governing Plan documents.
    8. An Insurance Fund will notify all participating insurance 
companies that separate account prospectus disclosure regarding 
potential risks of mixed and shared funding may be appropriate. Each 
Insurance Fund shall disclose in its prospectus or statement of 
additional information that: (a) Shares of the Insurance Fund are 
offered to insurance company separate accounts which fund both variable 
annuity and variable life insurance contracts, and to Qualified Plans; 
(b) due to differences of tax treatment or other considerations, the 
interests of various contractowners participating in the Insurance Fund 
and the interests of Qualified Plans investing in the Insurance Fund 
might at some time be in conflict; and (c) the Board will monitor the 
Insurance Fund for any material conflicts and determine what action, if 
any, should be taken.
    9. 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 Participants 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 shall be made 
available to the Commission upon request.
    10. If and to the extent that Rule 6e-2 and Rule 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 thereunder with 
respect to mixed or shared funding on terms and conditions materially 
different from any exemptions granted in the order requested in the 
Application, then each Insurance Fund and/or the Participants, as 
appropriate, shall take steps as may be necessary to comply with Rule 
6e-2 and Rule 6e-3(T), as amended, and Rule 6e-3, as adopted, to the 
extent applicable.
    11. Each Insurance Fund will comply with all provisions of the 1940 
Act requiring voting by shareholders (which, for these purposes, shall 
be the persons having a voting interest in the shares of that Insurance 
Fund), and in particular each Insurance 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) of the 1940 Act) as well as with Sections 
16(a) and, if and when applicable, 16(b). Further, each Insurance Fund 
will act in accordance with the Commission's interpretation of the 
requirements of Section 16(a) with respect to periodic elections of 
directors (or trustees) and with whatever rules the Commission may 
promulgate with respect thereto.
    12. The Participants shall at least annually submit to the Board of 
an Insurance Fund such reports, materials or data as the Board may 
reasonably request so that it may fully carry out the obligations 
imposed upon it by the conditions contained in the Application and said 
reports, materials and data shall be submitted more frequently if 
deemed appropriate by the Board. The obligations of a Participant to 
provide these reports, materials and data to the Board of the Insurance 
Fund when it so reasonably requests shall be a contractual obligation 
of all Participants under their agreements governing participation in 
each Insurance Fund.
    13. If a Qualified Plan should become an owner of 10% or more of 
the assets of an Insurance Fund, the Insurance Fund shall require such 
Plan to execute a participation agreement with such Insurance Fund 
which includes the conditions set forth herein to the extent 
applicable. A Qualified Plan will execute an application containing an 
acknowledgment of this condition upon such Plan's initial purchase of 
the shares of any Insurance Fund.

Conclusion

    For the reasons and upon the facts stated above, Applicants assert 
that the requested exemptions are 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. 99-30546 Filed 11-22-99; 8:45 am]
BILLING CODE 8010-01-M