95-23507. Golden American Life Insurance Company, et al.  

  • [Federal Register Volume 60, Number 184 (Friday, September 22, 1995)]
    [Notices]
    [Pages 49297-49301]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 95-23507]
    
    
    
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    SECURITIES AND EXCHANGE COMMISSION
    
    [Rel. No. IC-21362; No. 812-9602]
    
    
    Golden American Life Insurance Company, et al.
    
    September 15, 1995.
    AGENCY: Securities and Exchange Commission (``SEC'' or ``Commission'').
    
    ACTION: Notice of Application for an Order under the Investment Company 
    Act of 1940 (``1940 Act'').
    
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    APPLICANTS: Golden American Life Insurance Company (``Golden 
    American''), Separate Account B (``Account B'') and Separate Account D 
    (``Account D''--together with Account B, ``Separate Accounts''), and 
    Directed Services, Inc. (``DSI'').
    
    RELEVANT 1940 ACT SECTION: Order requested under Section 6(c) of the 
    1940 Act granting exemptions from Sections 12(b), 26(a)(2) and 27(c)(2) 
    thereof and Rule 12b-1 thereunder.
    
    SUMMARY OF APPLICATION: Applicants seek an order permitting the 
    deduction of mortality and expense risk charges, including an asset-
    based enhanced death benefit charge, from the assets of the Separate 
    Accounts in connection with the offering of certain variable annuity 
    contracts (``Contracts'') and certain other variable annuity contracts 
    (``Future Contracts'') issued in the future by Golden American that are 
    materially similar to the Contracts. Applicants also request that the 
    order permit the deduction of a mortality and expense risk charge from 
    the assets of any other separate accounts (``Future Accounts'') 
    established in the future by Golden American in connection with the 
    offering of the Future Contracts.
    
    FILING DATE: The application was filed on May 11, 1995, and amended on 
    August 29, 1995.
    
    HEARING OR NOTIFICATION OF HEARING: An order granting the application 
    will be issued unless the Commission orders a hearing. Interested 
    persons may request a hearing by writing to the Secretary of the 
    Commission and serving Applicants with a copy of the request, 
    personally or by mail. Hearing requests should be received by the 
    Commission by 5:30 p.m. on October 10, 1995, and should be accompanied 
    by proof of service on Applicants in the form of an affidavit or, for 
    lawyers, a certificate of service. Hearing requests should state the 
    nature of the requestor's interest, the reason for the request, and the 
    issues contested. Persons may request notification of a hearing by 
    writing to the Secretary of the Commission.
    
    ADDRESSES: Secretary, Securities and Exchange Commission, 450 5th 
    Street, NW., Washington, DC 20549. Applicants, c/o Mitchell M. Cox, 
    Esq., Vice President, Assistant Secretary and Associate General 
    Counsel, Golden American Life Insurance Company, 1001 Jefferson Avenue, 
    4th Floor, Wilmington, Delaware 19801.
    
    FOR FURTHER INFORMATION CONTACT: Yvonne M. Hunold, Assistant Special 
    Counsel, or Patrice M. Pitts, Special Counsel, Office of Insurance 
    Products (Division of Investment Management), at (202) 942-0670.
    
    SUPPLEMENTARY INFORMATION: The following is a summary of the 
    application; the complete application is available for a fee from the 
    Public Reference Branch of the Commission.
    
    Applicants' Representation
    
        1. Golden American is a stock life insurance company authorized to 
    do business in all jurisdictions, except New York. Golden American is a 
    wholly-owned subsidiary of BT Variable, Inc. and a wholly-owned 
    indirect subsidiary of Bankers Trust Company.
        2. The Separate Accounts were established by Golden American as 
    segregated asset accounts to fund variable annuity contracts. Account B 
    is registered under the 1940 Act as a unit investment trust. Account D 
    is registered under the 1940 Act as a non-diversified open-end 
    management company. Registration statements on Form N-4 and Form N-3, 
    registering the Contracts as securities under the 
    
    [[Page 49298]]
    Securities Act of 1933 (``1933 Act'') have been filed with the 
    Commission. Future Accounts also will be established by Golden American 
    as segregated asset accounts. Future Accounts will be registered with 
    the Commission either as unit investment trusts or open-end management 
    companies under the 1940 Act. Registration statements will be filed 
    with the Commission to register Future Contracts funded by the Future 
    Accounts as securities under the 1933 Act.\1\
    
        \1\Future Accounts may receive and invest premium payments under 
    Future Contracts, as well as other variable annuity contracts, 
    although relief sought herein will not apply to such other 
    contracts.
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        3. Account B presently has thirteen divisions, eleven of which are 
    available for investment under the Contracts. Each investment division 
    of Account B invests in shares of a corresponding series of The GCG 
    Trust (``Trust''). Account D's only division, the Managed Global 
    Account, invests directly in portfolio securities. (Account B and 
    Account D divisions are referred to collectively as ``Divisions.'') 
    Additional divisions may be established in the future within the 
    Separate Accounts and may invest in shares of the Trust, another mutual 
    fund or investment vehicle, or directly in portfolio securities. 
    Divisions of Future Accounts established as unit investment trusts may 
    invest in the Trust or other registered open-end management companies. 
    Divisions of Future Accounts established as open-end management 
    companies will invest directly in portfolio securities.
        4. DSI, a wholly-owned subsidiary of BT Variable, Inc., is the 
    distributor of the Contracts and of other contracts issued by Golden 
    American. DSI has entered into and will continue to enter into sales 
    agreements with broker-dealers to solicit for the sale of the Contracts 
    through registered representatives licensed to sell securities and 
    variable insurance contracts, including variable annuities. DSI is 
    registered under the Securities Exchange Act of 1934 as a broker-dealer 
    and is a member of the National Association of Securities Dealers, Inc. 
    DIS also is registered with the Commission as an investment adviser.
        5. The Trust is registered under the 1940 Act as an open-end 
    management investment company. The Trust currently offers eleven series 
    available for investment under the Contracts. DSI serves as manager to 
    each series of the Trust.
        6. The Contracts are deferred flexible premium variable annuity 
    contracts that are issued on a group and individual basis. The 
    Contracts may be purchased on a non-tax qualified basis (``Non-
    Qualified Contracts'') or in connection with retirement plans that 
    quality for special federal tax treatment under Section 408 of the 
    Internal Revenue Code (``Qualified Contracts'').
        7. The Contracts may be obtained: (a) Under a flexible premium plan 
    which provides for an initial premium payment and for optional 
    subsequent premium payments; (b) pursuant to an exchange of other 
    contracts issued by insurance companies not affiliated with Golden 
    American effected in accordance with Section 1035 of the Internal 
    Revenue Code of 1986, as amended; and (c) through an update of a 
    deferred variable annuity contract previously issued by Golden American 
    to incorporate the features of the Contract described herein.
        8. The Contracts provide for the accumulation of values on a 
    variable basis, a fixed basis, or both, and for the payment of periodic 
    annuity benefits on a variable or fixed basis. Contract owners may 
    allocate premium payments, or reallocate accumulation value under the 
    Contracts, among the Divisions, Golden American's Fixed Account Option 
    for specified Guarantee Periods\2\ or, in those states where the fixed 
    account is not available, Golden American's Fixed Interest Division, 
    which is part of Golden American's general account.\3\ Future Contracts 
    offered through the Separate Accounts or Future Accounts also may offer 
    a Fixed Account Option or Fixed Interest Division materially similar to 
    those described herein.
    
        \2\Golden American currently offers Fixed Allocations to which 
    it credits fixed rates of interest for Guarantee Periods with 
    durations of 1, 3, 5, 7 and 10 years, but reserves the right to 
    increase or decrease the number of Guarantee Periods available.
        \3\Applicants state that the Fixed Interest Division is not 
    registered under the 1940 Act or under the 1933 Act in reliance upon 
    Section 3(a)(8) of the 1933 Act.
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        9. The Contracts also provide for the payment of a death benefit, 
    payable in a single sum or applied to any of the annuity options 
    available under the Contracts. Contract owners generally may choose 
    from among: (a) A standard death benefit equal to the greatest of (i) 
    the accumulation value, (ii) total premium payments less partial 
    withdrawals, and (iii) cash surrender value; or (b) either of two 
    optional enhanced death benefits: the ``7% Solution'' and the ``Annual 
    Ratchet''. A Contract owner may elect an optional death benefit only at 
    issue, and only if the Contract owner or annuitant (when the Contract 
    owner is other than an individual) is age 75 or less with respect to 
    the 7% Solution option, or age 79 or less with respect to Annual 
    Ratchet option. If an optional death benefit is selected, the death 
    benefit will equal the greatest of: (a) accumulation value; (b) total 
    premiums less partial withdrawals; (c) cash surrender value; and (d) 
    the optional death benefit.
    
    a. 7% Solution Option
    
        Under the 7% Solution option, the death benefit payable equals: (i) 
    the guaranteed death benefit from the prior valuation date;\4\ plus 
    (ii) interest calculated on the guaranteed death benefit for the 
    current valuation period at an annual rate of 7%;\5\ plus (iii) any 
    additional premiums paid during the current valuation period; less (iv) 
    any partial withdrawals made during the current valuation period. Each 
    accumulated initial or additional premium payment, reduced by any 
    partial withdrawal, will continue to grow at the guaranteed death 
    benefit interest rate until reaching its maximum guaranteed death 
    benefit. Such maximum guaranteed death benefit is initially equal to 
    two times the initial or each additional premium paid. Thereafter, the 
    maximum guaranteed death benefit as of the effective date of a partial 
    withdrawal is reduced first by the amount of any partial withdrawal of 
    earnings and second in proportion to the reduction in the accumulation 
    value for any partial withdrawal of premium (in each case, including 
    any associated market value adjustment and surrender charge incurred).
    
        \4\On the Contract date the guaranteed death benefit is equal to 
    the initial premium.
        \5\With respect to amounts in the Liquid Asset Division and 
    Limited Maturity bond Division, and amounts in a Fixed Allocation or 
    the Fixed Interest Division, however, the interest rate applied will 
    be the applicable net rate of return for the Liquid Asset Division 
    and the Limited Maturity Bond Division, and interest credited to the 
    Fixed Allocation or Fixed Interest Division during the current 
    valuation period, if such rate is less than an effective annual rate 
    of 7%.
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    b. Annual Ratchet Option
    
        Under the Annual Ratchet option, the death benefit payable equals: 
    (i) The guaranteed death benefit from the prior valuation date;\6\ less 
    (ii) any partial withdrawals taken since the prior valuation date; plus 
    (iii) additional premium paid since the prior valuation date.
    
        \6\On the Contract date the guaranteed death benefit is equal to 
    the initial premium.
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        c. Annually on each Contract anniversary on or prior to the 
    Contract owner attaining age 80, the guaranteed death benefit is reset 
    to equal the greater of (i) the guaranteed death benefit from the prior 
    valuation date, less any partial 
    
    [[Page 49299]]
    withdrawals taken since the prior valuation date, plus any additional 
    premiums paid since the prior valuation date, or (ii) the accumulation 
    value as of such date.
        10. The following charges are deducted under the Contracts.
        a. Premium Taxes. A premium tax charge, ranging from 0% to 3.5% of 
    premiums, may be deducted from accumulation value for premium taxes 
    assessed against Golden American by various states and local 
    jurisdictions. Golden American reserves the right to change this amount 
    to conform with changes in the law or in the state of residence of the 
    Contract owner. The charge will be deducted on the annuity commencement 
    date if premium taxes are incurred on such date. If a premium tax is 
    incurred at the time of premium payment, deduction of the premium tax 
    charge will be deferred until the Contract is surrendered, an excess 
    partial withdrawal is taken, or the date annuity payments commence.
        b. Contingent Deferred Sales Charge (``CDSC''). No sales charge 
    currently is deducted from premium payments. A CDSC will be imposed as 
    a percentage of premium payments being withdrawn if the contract is 
    surrendered or an excess partial withdrawal is taken within seven years 
    from the date Golden American receives and accepts each premium 
    payment. The amount of the surrender charge at the time of surrender or 
    excess partial withdrawal depends upon the number of complete years 
    that have elapsed since the premium payment being withdrawn was made. 
    In calculating the CDSC, Golden American treats premium payments as 
    being withdrawn on a first-in first-out basis, and as being withdrawn 
    before earnings. The CDSC as a percentage of each premium payment is 
    determined as follows:
    
    ------------------------------------------------------------------------
                                                             Complete years 
     Surrender charge (as a percent of the premium payment  since receipt of
                        being withdrawn                          premium    
    ------------------------------------------------------------------------
    7.....................................................  0-1             
    6.....................................................  2               
    5.....................................................  3               
    4.....................................................  4               
    3.....................................................  5               
    1.....................................................  6               
    0.....................................................  7 and over.     
    ------------------------------------------------------------------------
    
    In no event will the CDSC exceed 8.5% of premium payments.
        Amounts equal in the aggregate to 15% of the accumulation value may 
    be withdrawn free of any CDSC each Contract year. Golden American will 
    impose a CDSC on any partial withdrawal in excess of that amount; the 
    CDSC will be deducted from the accumulation value in proportion to the 
    accumulation value in each Division of the Separate Accounts, a Fixed 
    Allocation or the Fixed Interest Division from which the withdrawal is 
    taken. Golden American may waive the CDSC for a surrender or ``excess 
    partial withdrawal'' where the Contract owner (i) receives qualified 
    extended medical care on or after the first Contract anniversary for at 
    least 45 days during any continuous 60 day period, or (ii) is first 
    diagnosed by a qualifying medical professional, on or after the first 
    Contract anniversary, as having a qualifying terminal illness.
        c. Administrative Charge. A charge of $40 is deducted on the 
    Contract anniversary and on surrender of the Contract for 
    administrative costs expected to be incurred over the life of the 
    Contracts. No administrative charge is deducted if the accumulation 
    value or total premiums paid at the end of the Contract processing 
    period equals or exceeds $100,000. The charge is deducted 
    proportionately from the Divisions, Fixed Allocation or Fixed Interest 
    Division. The charge is guaranteed not to increase for the duration of 
    the Contracts. Applicants intend to rely on Rule 26a-1 under the 1940 
    Act to deduct this charge. Golden American does not anticipate any 
    profit from this charge.
        d. Excess Allocation Charge. No charge currently is deducted for 
    reallocation of accumulation values. Golden American reserves the right 
    to charge a maximum $25 fee for each reallocation made after the 
    twelfth reallocation in a Contract year.\7\ This charge will be 
    deducted proportionately from each Division and Fixed Allocation or 
    Fixed Interest Division from which such reallocation is made, unless 
    the Contract owner has elected the option to have all charges against 
    accumulation value deducted exclusively from the Liquid Asset Division. 
    Applicants intend to rely on Rule 26a-1 under the 1940 Act to deduct 
    this charge. Golden American does not expect to make a profit from this 
    charge.
    
        \7\Any reallocations made pursuant to the dollar cost averaging 
    program will not be included in determining if an excess allocation 
    charge will be imposed.
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        e. Asset Based Administrative Charge. A daily charge equal to an 
    annual rate of 0.15% will be deducted from the assets in each Division 
    for expenses incurred in administration of the Contracts and the 
    Separate Accounts. The charge is guaranteed not to increase, and is 
    designed to reimburse Golden American only for administrative costs 
    expected to be incurred over the life of the Contracts. Applicants 
    represent that the charge will be deducted in reliance on Rule 26a-1 
    under the 1940 Act. Golden American does not expect to make a profit 
    from this charge.
        f. Mortality and Expense Risk Charge. Golden American imposes 
    charges as compensation for bearing certain mortality and expense risks 
    under the Contracts. For Contracts with the standard death benefit or 
    an Annual Ratchet death benefit, Golden American will deduct a daily 
    mortality and expense risk charge from the Separate Accounts at an 
    annual rate not to exceed a maximum 1.25% of the value of the average 
    daily net asset in each Division. Of the 1.25% mortality and expense 
    risk charge associated with the Annual Ratchet death benefit, 
    approximately 0.90% is allocable to mortality risks and 0.35% to 
    expense risks. If the Contract owner selects the standard death 
    benefit, the mortality and expense risk charge will decrease. For 
    Contracts with the 7% Solution death benefit, Golden American will 
    deduct a daily mortality and expense risk charge at an annual rate of 
    1.40% (of which 0.35% is allocable to expense risks, 0.90% to mortality 
    risks and 0.15% to the additional enhanced death benefit) of the value 
    of the average daily net assets in each Division. This charge may be a 
    source of profit for Golden American and the excess may be used for, 
    among other things, the payment of distribution expenses.
        Golden American will assume two mortality risks under the 
    Contracts: (1) That the annuity rates under the Contracts cannot be 
    changed to the detriment of Contract owners even if annuitants live 
    longer than projected; and (2) that Golden American may be obligated to 
    pay a claim for a standard death benefit or an optional death benefit 
    in excess of a Contract owner's cash surrender value. Golden American 
    also will assume an expense risk through its guarantee not to increase 
    the charges for issuing the Contracts and administering the Contracts 
    and the Separate Accounts, regardless of its actual expenses.
        g. Deductions for Other Taxes. No charge currently is imposed for 
    federal, state or local income taxes attributable to the Separate 
    Accounts. Golden American may make such a charge in the future, subject 
    to necessary regulatory approvals. Charges also may be made for any 
    other applicable taxes or economic burden resulting from the 
    application of tax laws that Golden 
    
    [[Page 49300]]
    American determines to be properly attributable to the Separate 
    Accounts.
        h. Expenses of the Trust and Separate Accounts. Net assets of 
    Account B and Account D will reflect the investment advisory fee and 
    other expenses incurred by the Trust and by the Managed Global Account, 
    respectively.
        11. Applicants request that the exemptive relief also apply to 
    Future Contracts issued by Golden American through the Separate 
    Accounts or Future Accounts which may invest in the Trust or in shares 
    of other registered investment companies, or directly in a portfolio of 
    securities. Applicants state that a Future Contract will be deemed a 
    materially similar contract if it provides the same rights, benefits 
    and obligations as the Contract described herein and has charges equal 
    to or less than the charges assessed under the Contracts, including the 
    mortality and expense risk charge, enhanced death benefit charge and 
    CDSC for the Contracts described herein. In particular, the maximum 
    surrender charge will be 7% of a premium payment, and each Contract 
    year a Contract owner may withdraw up to 15% of accumulation value free 
    of any CDSC that otherwise might apply. After a premium payment has 
    been invested for 7 years, no CDSC will apply. Moreover, in no event 
    will the CDSC exceed 8.5% of premium payments made.
    
    Applicants Legal Analysis
    
        1. Section 6(c) of the 1940 Act authorizes the Commission to exempt 
    any person, security or transaction, or any class or classes or 
    persons, securities or transactions, from the provisions of the 1940 
    Act and the rules thereunder, if and to the extent that such exemption 
    is necessary or appropriate in the public interest and consistent with 
    the protection of investors and the purposes fairly intended by the 
    policy and provisions of the 1940 Act.
    
    Exemptive Relief Under Section 26(a)(2) and 27(c)(2) of the 1940 
    Act
    
        2. Applicants request an order under Section 6(c) granting 
    exemptions from Sections 26(a)(2)(C) and 27(c)(2) of the 1940 Act to 
    permit the assessment of chargers for mortality and expense risks, 
    including the enhanced death benefit charge, under the Contracts and 
    Future Contracts.
        3. Applicants submit that their request for an order that applies 
    to Future Contracts and to Future Accounts is appropriate in the public 
    interest and consistent with the protection of investors and purposes 
    fairly intended by the policy and provisions of the 1940 Act. Without 
    the requested relief, Golden American would have to request and obtain 
    exemptive relief for each new Future Account it establishes and each 
    class of Future Contracts it issues. Applicants represent that such 
    additional requests for exemptive relief would present no issues under 
    the 1940 Act that have not already been addressed in this application.
        4. Applicants further state that the requested relief is 
    appropriate in the public interest because it would promote 
    competitiveness in the variable annuity policy market by eliminating 
    the need for Golden American to file redundant exemptive applications, 
    thereby reducing its administrative expenses and maximizing the 
    efficient use of its resources. Investors would not receive any benefit 
    or additional protection by requiring Golden American to seek exemptive 
    relief repeatedly with respect to the issues addressed in this 
    Application. Applicants assert that the delay and expense involved 
    would impair Golden American's ability to take advantage effectively of 
    business opportunities as they arise and would disadvantage investors 
    as a result of Golden American's increased overhead expenses.
        5. 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.
        6. Applicants submit that the mortality and expense risk charges 
    are reasonable and proper insurance charges. Applicants represent that 
    the mortality and expense risk charges are within the range of industry 
    practice for comparable variable annuity contracts. This representation 
    is based upon Golden American's analysis of publicly available 
    information about similar industry products, taking into consideration 
    such factors as current charge levels, existence of charge level 
    guarantees, and guaranteed annuity rates. Applicants state that Golden 
    American will maintain at its home office and make available to the 
    Commission, upon request, a memorandum setting forth in detail the 
    products analyzed in the course of, and the methodology and results of, 
    its comparative survey.
        7. Applicants further represent that the additional charge for the 
    enhanced death benefit is reasonable in relation to the risks assumed 
    by Golden American in connection with the 7% Solution option. In 
    arriving at this determination, Golden American ran a large number of 
    computer generated trials at various issue ages and determined 
    actuarially the level cost of providing the enhanced death benefits. 
    Based on this analysis, Golden American determined that an additional 
    charge equal to 0.15% of the net assets in the Separate Accounts was a 
    reasonable charge. Golden American undertakes to maintain at its home 
    office a memorandum, available to the Commission upon request, setting 
    forth in detail the methodology used in determining that the additional 
    charge for the enhanced death benefit under the 7% Solution option is 
    reasonable in relation to the risks assumed by Golden American under 
    the Contracts.
        8. Applicants acknowledge that, if a profit is realized from the 
    mortality and expense risk charge under the Contracts, all or a portion 
    of such profit may be available to pay distribution expenses borne by 
    Golden American. Golden American has concluded that there is a 
    reasonable likelihood that the proposed distribution financing 
    arrangements will benefit the Separate Accounts and the Contract 
    owners. Golden American will keep at its home office and make available 
    to the Commission, upon request, a memorandum setting forth the basis 
    for this representation.
        9. With respect to any Future Contracts offered through the 
    Separate Accounts and any Future Accounts, Golden American undertakes 
    that it will not offer any such Future Contracts without first making 
    the determination that the mortality and expense risk charge was within 
    the range of industry practice, that any additional charge for any 
    enhanced death benefit was reasonable in relation to the risks 
    assessed, and that there is a reasonable likelihood that proposed 
    distribution financing arrangements will benefit the affected Separate 
    Accounts or Future Accounts and existing Contract owners and Future 
    Contact owners.
        Further, the basis for each such determination shall be set forth 
    in a memorandum which will be maintained by Golden American at its home 
    office and which will be made available to the Commission.
        10. Applicants represent that Account B and any Future Account 
    established as a unit investment trust will invest only in a management 
    investment 
    
    [[Page 49301]]
    company that has undertaken, in the event any such company adopts a 
    plan under Rule 12b-1 to finance distribution expenses, to have a board 
    of directors, a majority of whom are not interested persons of any such 
    investment company, as defined in the 1940 Act, formulate and approve 
    any plan under Rule 12b-1 under the 1940 Act to finance distribution 
    expenses. Applicants further represent that Account D undertakes, and 
    any Future Account established as an open-end management company will 
    undertake, in the event that it adopts a plan under Rule 12b-1 to 
    finance distribution expenses, to have a majority of its board of 
    directors who are not interested persons, formulate and approve any 
    plan under Rule 12b-1 to finance distribution expenses.
    
    Request for Exemptive Relief From Section 12(b) of the 1940 Act and 
    Rule 12b-1
    
        11. Section 12(b) of the 1940 Act makes it unlawful for a 
    registered investment company from acting as a distributor of 
    securities of which it is the issuer, except through an underwriter. 
    Rule 12b-1 prohibits any such company from directly or indirectly 
    financing distribution of the company's shares except in compliance 
    with the Rule's requirements. Rule 12b-1 requires that a company 
    financing distribution of its shares formulate a written plan 
    describing all material aspects of the proposed arrangement, and that 
    the plan be approved initially by the company's shareholders, directors 
    and disinterested directors. The directors must vote annually to 
    continue such a plan, and the directors must conclude that there is a 
    reasonable likelihood that implementation or continuation of the plan 
    will benefit the company and its shareholders.
        12. Applicants expect to finance the expenses of distributing the 
    Contracts through use of Golden American's general assets, which may be 
    attributable in part to the surplus from mortality and expense risk 
    charges. Golden American requests an order under Section 6(c) of the 
    1940 Act for exemptive relief from Section 12(b) of the 1940 Act and 
    Rule 12b-1 thereunder, insofar as the proposed distribution financing 
    arrangement might be deemed to involve the direct or indirect use of 
    assets in Account D, or in any Future Account established as an open-
    end management company, for distribution. Applicants represent that 
    this aspect of the requested relief is solely ``defensive,'' i.e., to 
    clarify that the current distribution financing is not subject to 
    Section 12(b) or Rule 12b-1 thereunder. Applicants contend that the 
    requested relief is not intended to cover the imposition of a separate 
    charge for distribution expenses against the assets in Account D. 
    Applicants represent that no separate charge for distribution expenses 
    will be assessed on the assets of Account D or any Future Account 
    organized as an open-end management company unless and until the charge 
    complies with the requirements of Rule 12b-1.
        13. Applicants assert that Rule 12b-1 was not intended to apply to 
    managed accounts, that the Rule's provisions are directed only at 
    traditional mutual funds and should not be applied to managed accounts, 
    and that the protections of Rule 12b-1 are not necessary in the case of 
    managed accounts. Applicants state that the Commission's review under 
    Sections 26 and 27 of the 1940 Act of the reasonableness of asset 
    charges of managed accounts, and explicit prospectus disclosure that 
    the asset charge may be used for distribution expenses, provide 
    sufficient protection for Contract owners and obviates the need for a 
    managed account to comply with the requirements of Rule 12b-1.
        14. Applicants assert that application of Rule 12b-1 to managed 
    accounts would produce a burdensome and inequitable treatment of these 
    accounts, would place them at an unfair disadvantage with respect to 
    unit investment trusts offering similar annuity contracts, and would 
    create an artificial distinction between managed accounts and unit 
    investment trusts not justified by policy considerations.
    
    Conclusion
    
        Applicants assert that for the reasons and based upon the facts set 
    forth above, the requested exemptions from sections 12(b), 26(a)(2)(C) 
    and 27(c)(2) of the 1940 Act and Rule 12b-1 thereunder to deduct a 
    mortality and expense risk charge under the Contracts and Future 
    Contracts offered by the Separate Accounts or by Future Accounts are 
    necessary and appropriate in the public interest and consistent with 
    the protection of investors and the policies and provisions of the 1940 
    Act.
    
        For the Commission, by the Division of Investment Management, 
    pursuant to delegated authority.
    Margaret M. McFarland,
    Deputy Secretary.
    [FR Doc. 95-23507 Filed 9-21-95; 8:45 am]
    BILLING CODE 8010-02-M
    
    

Document Information

Published:
09/22/1995
Department:
Securities and Exchange Commission
Entry Type:
Notice
Action:
Notice of Application for an Order under the Investment Company Act of 1940 (``1940 Act'').
Document Number:
95-23507
Dates:
The application was filed on May 11, 1995, and amended on August 29, 1995.
Pages:
49297-49301 (5 pages)
Docket Numbers:
Rel. No. IC-21362, No. 812-9602
PDF File:
95-23507.pdf