[Federal Register: July 31, 2007 (Volume 72, Number 146)]
[Notices]
[Page 41726-41728]
[DOCID:fr31jy07-64]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

Combined Notice of Filings 1

July 20, 2007.
    Take notice that the Commission received the following open access
transmission tariff filings:

    Docket Numbers: OA07-25-000.
    Applicants: Duke Energy Carolinas, LLC.
    Description: Duke Energy Carolinas, LLC submits its Open Access
Transmission Tariff (OATT) compliance filing pursuant to Order No. 890.
    Filed Date: 07/11/2007.
    Accession Number: 20070710-5095.
    Comment Date: 5 p.m. Eastern Time on Wednesday, August 1, 2007.

    Docket Numbers: OA07-26-000.
    Applicants: Public Service Company of New Mexico.
    Description: Public Service Company of New Mexico submits its OATT
compliance filing pursuant to Order No. 890.
    Filed Date: 07/12/2007.
    Accession Number: 20070712-5025.
    Comment Date: 5 p.m. Eastern Time on Thursday, August 2, 2007.

    Docket Numbers: OA07-27-000.
    Applicants: E ON U.S. LLC.
    Description: LG&E/KU on behalf of LG&E submits its Capacity of
Benefit Margin (CBM) compliance filing pursuant to Order No. 890.
    Filed Date: 07/12/2007.
    Accession Number: 20070712-5047.
    Comment Date: 5 p.m. Eastern Time on Thursday, August 2, 2007.

    Docket Numbers: OA07-28-000.
    Applicants: Avista Corporation.
    Description: Avista Corporation submits its OATT compliance filing
pursuant to Order No. 890.
    Filed Date: 07/13/2007.
    Accession Number: 20070712-5069.
    Comment Date: 5 p.m. Eastern Time on Friday, August 3, 2007.

    Docket Numbers: OA07-29-000.
    Applicants: NewCorp Resources Electric Cooperative, Inc.
    Description: NewCorp Resources Electric Cooperative, Inc submits
its OATT compliance filing pursuant to Order No. 890.
    Filed Date: 07/13/2007.
    Accession Number: 20070713-5003.
    Comment Date: 5 p.m. Eastern Time on Friday, August 3, 2007.

    Docket Numbers: OA07-30-000.
    Applicants: Ohio Valley Electric Corporation.
    Description: Ohio Valley Electric Corp submits its OATT compliance
filing pursuant to Order No. 890.
    Filed Date: 07/13/2007.
    Accession Number: 20070713-5006.
    Comment Date: 5 p.m. Eastern Time on Friday, August 3, 2007.

    Docket Numbers: OA07-31-000.
    Applicants: Aquila, Inc.
    Description: Aquila, Inc. submits its OATT compliance filing
pursuant to Order 890.
    Filed Date: 07/13/2007.
    Accession Number: 20070713-5017.
    Comment Date: 5 p.m. Eastern Time on Friday, August 3, 2007.

    Docket Numbers: OA07-32-000.
    Applicants: Entergy Services Inc.
    Description: Entergy Services, Inc submits its OATT compliance
filing pursuant to Order No. 890.
    Filed Date: 07/13/2007.
    Accession Number: 20070713-5027.
    Comment Date: 5 p.m. Eastern Time on Friday, August 3, 2007.

    Docket Numbers: OA07-33-000; OA07-11-001.
    Applicants: Deseret Generation & Transmission Co-op.
    Description: Deseret Generation & Transmission Co-operative, Inc
submits its OATT compliance filing pursuant to Order No. 890.
    Filed Date: 07/13/2007.
    Accession Number: 20070713-5026.
    Comment Date: 5 p.m. Eastern Time on Friday, August 3, 2007.

    Docket Numbers: OA07-34-000.
    Applicants: Sierra Pacific Resources Operating Company.
    Description: Sierra Pacific Resources Operating Companies submits
its OATT compliance filing pursuant to Order No. 890.
    Filed Date: 07/13/2007.
    Accession Number: 20070713-5030.
    Comment Date: 5 p.m. Eastern Time on Friday, August 3, 2007.

    Docket Numbers: OA07-35-000.
    Applicants: Cleco Power LLC.
    Description: Cleco Power LLC submits its OATT compliance filing
pursuant to Order No. 890.
    Filed Date: 07/13/2007.
    Accession Number: 20070713-5032.
    Comment Date: 5 p.m. Eastern Time on Friday, August 3, 2007.

    Docket Numbers: OA07-36-000.
    Applicants: South Carolina Electric & Gas Company.
    Description: South Carolina Electric & Gas Company submits its OATT
compliance filing pursuant to Order No. 890.
    Filed Date: 07/13/2007.
    Accession Number: 20070713-5035.
    Comment Date: 5 p.m. Eastern Time on Friday, August 3, 2007.

    Docket Numbers: OA07-37-000.
    Applicants: Kentucky Utilities Company; Louisville Gas and Electric
Company; E.ON U.S. LLC.
    Description: E.ON U.S., LLC on behalf of Louisville Gas & Electric
and Kentucky Utilities submits its OATT compliance filing pursuant to
Order 890.
    Filed Date: 07/13/2007.
    Accession Number: 20070713-5034.
    Comment Date: 5 p.m. Eastern Time on Friday, August 3, 2007.

    Docket Numbers: OA07-38-000.
    Applicants: Southern Company Services, Inc.
    Description: Southern Company Services, Inc submits its OATT
compliance filing pursuant to Order No. 890.
    Filed Date: 07/13/2007.
    Accession Number: 20070713-5036.
    Comment Date: 5 p.m. Eastern Time on Friday, August 3, 2007.

    Docket Numbers: OA07-39-000.
    Applicants: Xcel Energy Services Inc.

    Description: Xcel Energy Services Inc. submits its OATT compliance
filing pursuant to Order No. 890.
    Filed Date: 07/13/2007.
    Accession Number: 20070713-5037.
    Comment Date: 5 p.m. Eastern Time on Friday, August 3, 2007.

    Docket Numbers: OA07-40-000; OA07-15-001.
    Applicants: Portland General Electric Company.
    Description: Portland General Electric Company submits its OATT
compliance filing pursuant to Order No. 890.
    Filed Date: 07/13/2007.
    Accession Number: 20070713-5041.
    Comment Date: 5 p.m. Eastern Time on Friday, August 3, 2007.

    Docket Numbers: OA07-41-000.
    Applicants: Allegheny Power.
    Description: Allegheny Power submits its Request for waiver of
Order 890.
    Filed Date: 07/13/2007.
    Accession Number: 20070716-0187.
    Comment Date: 5 p.m. Eastern Time on Friday, August 3, 2007.

    Docket Numbers: OA07-42-000.
    Applicants: Southern Company Services, Inc.
    Description: Southern Company Services, Inc. submits its CBM
compliance filing pursuant to Order No. 890.
    Filed Date: 07/13/2007.
    Accession Number: 20070713-5039.
    Comment Date: 5 p.m. Eastern Time on Friday, August 3, 2007.

    Docket Numbers: OA07-43-000.
    Applicants: Arizona Public Service Company.
    Description: Arizona Public Service Company submits its OATT
compliance filing pursuant to Order No. 890.
    Filed Date: 07/13/2007.
    Accession Number: 20070713-5045.
    Comment Date: 5 p.m. Eastern Time on Friday, August 3, 2007.

    Docket Numbers: OA07-44-000.
    Applicants: El Paso Electric Company.
    Description: El Paso Electric Co submits its OATT compliance filing
pursuant to Order No. 890.
    Filed Date: 07/13/2007.
    Accession Number: 20070713-5046.
    Comment Date: 5 p.m. Eastern Time on Friday, August 3, 2007.

    Docket Numbers: OA07-45-000.
    Applicants: El Paso Electric Company.
    Description: El Paso Electric Company submits its CBM compliance
filing pursuant to Order No. 890.
    Filed Date: 07/13/2007.
    Accession Number: 20070713-5050.
    Comment Date: 5 p.m. Eastern Time on Friday, August 3, 2007.

    Docket Numbers: OA07-46-000.
    Applicants: Florida Power & Light Company.
    Description: Florida Power & Light Company submits its OATT
compliance filing pursuant to Order No. 890.
    Filed Date: 07/13/2007.
    Accession Number: 20070713-5042.
    Comment Date: 5 p.m. Eastern Time on Friday, August 3, 2007.

    Docket Numbers: OA07-47-000.
    Applicants: Tampa Electric Company.
    Description: Tampa Electric Company submits its OATT compliance
filing pursuant to Order No. 890.
    Filed Date: 07/13/2007.
    Accession Number: 20070713-5056.
    Comment Date: 5 p.m. Eastern Time on Friday, August 3, 2007.

    Docket Numbers: OA07-48-000.
    Applicants: Tucson Electric Power Company.
    Description: Tucson Electric Power Company submits its OATT
compliance filing pursuant Order No. 890.
    Filed Date: 07/13/2007.
    Accession Number: 20070713-5064.
    Comment Date: 5 p.m. Eastern Time on Friday, August 3, 2007.

    Docket Numbers: OA07-49-000.
    Applicants: UNS Electric, Inc.
    Description: UNS Electric, Inc. submits its OATT compliance filing
pursuant to Order No. 890.
    Filed Date: 07/13/2007.
    Accession Number: 20070713-5066.
    Comment Date: 5 p.m. Eastern Time on Friday, August 3, 2007.

    Docket Numbers: OA07-50-000.
    Applicants: Alcoa Power Generating Inc.--Yadkin.
    Description: Alcoa Power Generating Inc.--Yadkin Division submits
its OATT compliance filing pursuant to Order No. 890.
    Filed Date: 07/13/2007.
    Accession Number: 20070713-5067.
    Comment Date: 5 p.m. Eastern Time on Friday, August 3, 2007.

    Docket Numbers: OA07-51-000.
    Applicants: Mid-Continent Area Power Pool.
    Description: Mid-Continent Area Power Pool submits its OATT
compliance filing pursuant to Order No. 890.
    Filed Date: 07/13/2007.
    Accession Number: 20070713-5071.
    Comment Date: 5 p.m. Eastern Time on Friday, August 3, 2007.

    Docket Numbers: OA07-52-000.
    Applicants: Puget Sound Energy, Inc.
    Description: Puget Sound Energy, Inc submits its OATT compliance
filing pursuant to Order No. 890.
    Filed Date: 07/13/2007.
    Accession Number: 20070713-5072.
    Comment Date: 5 p.m. Eastern Time on Friday, August 3, 2007.

    Docket Numbers: OA07-53-000.
    Applicants: Progress Energy, Inc.
    Description: Progress Energy, Inc. submits its OATT compliance
filing pursuant to Order No. 890.
    Filed Date: 07/13/2007.
    Accession Number: 20070713-5076.
    Comment Date: 5 p.m. Eastern Time on Friday, August 3, 2007.

    Docket Numbers: OA07-54-000; OA07-18-001.
    Applicants: PacifiCorp.
    Description: PacifiCorp submits its OATT compliance filing pursuant
to Order No. 890.
    Filed Date: 07/13/2007.
    Accession Number: 20070713-5078.
    Comment Date: 5 p.m. Eastern Time on Friday, August 3, 2007.

    Docket Numbers: OA07-55-000.
    Applicants: Black Hills Power, Inc.
    Description: Black Hills Power, Inc. on behalf of Basin Electric
Power Cooperative, and Powder River Energy Corp submits its OATT
compliance filing pursuant to Order No. 890.
    Filed Date: 07/13/2007.
    Accession Number: 20070713-5088.
    Comment Date: 5 p.m. Eastern Time on Friday, August 3, 2007.

    Docket Numbers: OA07-56-000.
    Applicants: MidAmerican Energy Company.
    Description: MidAmerican Energy Company submits its OATT compliance
filing pursuant to Order No. 890.
    Filed Date: 07/13/2007.
    Accession Number: 20070713-5087.
    Comment Date: 5 p.m. Eastern Time on Friday, August 3, 2007.

    Docket Numbers: OA07-57-000.
    Applicants: Midwest Independent Transmission System Operator, Inc.
    Description: Midwest Independent System Operator, Inc submits its
CBM compliance filing pursuant to Order No. 890.
    Filed Date: 07/13/2007.
    Accession Number: 20070713-5092.
    Comment Date: 5 p.m. Eastern Time on Friday, August 3, 2007.

    Docket Numbers: OA07-58-000.
    Applicants: Northwestern Corp.
    Description: Northwestern Corporation submits its compliance filing
pursuant to Order No. 890.
    Filed Date: 07/13/2007.
    Accession Number: 20070713-5093.
    Comment Date: 5 p.m. Eastern Time on Friday, August 3, 2007.

    Docket Numbers: OA07-59-000; OA07-13-001.
    Applicants: NorthWestern Corporation.
    Description: NorthWestern Corporation South Dakota submits its OATT
compliance filing pursuant to Order No. 890.

    Filed Date: 07/13/2007.
    Accession Number: 20070713-5096.
    Comment Date: 5 p.m. Eastern Time on Friday, August 3, 2007.

    Docket Numbers: OA07-60-000.
    Applicants: Idaho Power Company.
    Description: Idaho Power Company submits its OATT compliance filing
pursuant to Order No. 890.
    Filed Date: 07/13/2007.
    Accession Number: 20070713-5099.
    Comment Date: 5 p.m. Eastern Time on Friday, August 3, 2007.

    Docket Numbers: OA07-61-000.
    Applicants: Maine Public Service Company.
    Description: Maine Public Service Company submits its OATT
compliance filing pursuant to Order No. 890.
    Filed Date: 07/13/2007.
    Accession Number: 20070713-5108.
    Comment Date: 5 p.m. Eastern Time on Friday, August 3, 2007.

    Docket Numbers: OA07-70-000.
    Applicants: Idaho Power Company.
    Description: Idaho Power Company submits its CBM compliance filing
pursuant to Order 890.
    Filed Date: 07/13/2007.
    Accession Number: 20070717-0173.
    Comment Date: 5 p.m. Eastern Time on Friday, August 3, 2007.

    Docket Numbers: OA07-74-000.
    Applicants: MATL LLP.
    Description: Montana Alberta Tie Ltd submits its OATT compliance
filing pursuant to Order No. 890.
    Filed Date: 07/13/2007.
    Accession Number: 20070717-0191.
    Comment Date: 5 p.m. Eastern Time on Friday, August 3, 2007.

    Docket Numbers: OA07-76-000.
    Applicants: New York Independent System Operator, Inc.
    Description: New York Independent System Operator Inc. submits a
request for temporary waivers, request for expedited action, and
request for waiver of notice and comment procedures.
    Filed Date: 07/13/2007.
    Accession Number: 20070717-0177.
    Comment Date: 5 p.m. Eastern Time on Friday, August 3, 2007.

    Any person desiring to intervene or to protest in any of the above
proceedings must file in accordance with Rules 211 and 214 of the
Commission's Rules of Practice and Procedure (18 CFR 385.211 and
385.214) on or before 5 p.m. Eastern time on the specified comment
date. It is not necessary to separately intervene again in a subdocket
related to a compliance filing if you have previously intervened in the
same docket. Protests will be considered by the Commission in
determining the appropriate action to be taken, but will not serve to
make protestants parties to the proceeding. Anyone filing a motion to
intervene or protest must serve a copy of that document on the
Applicant. In reference to filings initiating a new proceeding,
interventions or protests submitted on or before the comment deadline
need not be served on persons other than the Applicant.
    The Commission encourages electronic submission of protests and
interventions in lieu of paper, using the FERC Online links at http://www.ferc.gov.
 To facilitate electronic service, persons with Internet

access who will eFile a document and/or be listed as a contact for an
intervenor must create and validate an eRegistration account using the
eRegistration link. Select the eFiling link to log on and submit the
intervention or protests.
    Persons unable to file electronically should submit an original and
14 copies of the intervention or protest to the Federal Energy
Regulatory Commission, 888 First St., NE., Washington, DC 20426.
    The filings in the above proceedings are accessible in the
Commission's eLibrary system by clicking on the appropriate link in the
above list. They are also available for review in the Commission's
Public Reference Room in Washington, DC. There is an eSubscription link
on the Web site that enables subscribers to receive e-mail notification
when a document is added to a subscribed dockets(s). For assistance
with any FERC Online service, please e-mail<EMAIL_ADDRESS>or call<PHONE_NUMBER> (toll free). For TTY, call<PHONE_NUMBER>.

Kimberly D. Bose,
Secretary.
 [FR Doc. E7-14728 Filed 7-30-07; 8:45 am]

BILLING CODE 6717-01-P


[Federal Register: November 28, 2008 (Volume 73, Number 230)]
[Notices]
[Page 72534-72536]
[DOCID:fr28no08-126]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-58990; File No. SR-BSE-2008-36]

Self-Regulatory Organizations; Boston Stock Exchange, Inc.;
Notice of Filing of Proposed Rule Change Relating to Delisting
Standards

November 20, 2008.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on November 3, 2008, the Boston Stock Exchange, Inc. (the ``Exchange'')
filed with the Securities and Exchange Commission (the ``Commission'')
the proposed rule as described in Items I, II, and III below, which
Items have been prepared by the self-regulatory organization. The
Commission is publishing this notice to solicit comments on the
proposed rule from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to adopt a Rule whereby the Exchange may
determine to delist a security due to extraordinary circumstances under

which the Exchange has terminated its Listing Program in connection
with the discontinuation of trading in all securities listed on its
market. The text of the proposed rule change is available from the
principal office of the Exchange, at the Commission's Public Reference
Room, and is also available at http://www.nasdaqtrader.com/
Trader.aspx?id=Boston_Stock_Exchange.

II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the self-regulatory organization
included statements concerning the purpose of, and basis for, the
proposed rule change and discussed any comments it received on the
proposed rule change. The text of these statements may be examined in
the places specified in Item IV below. The self-regulatory organization
has prepared summaries, set forth in Sections A, B, and C below, of the
most significant aspects of such statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

1. Purpose
    On September 5, 2007, the Exchange announced that it was
terminating its programs for listing and trading cash equities. In
addition to that announcement, in October 2007, all issuers were given
additional notice that the Listings programs had ceased. However, not
all issuers have formally delisted. At this point, the Exchange has
determined it is appropriate to formally delist the securities of the
twenty-nine issuers that currently have listings with the Exchange.
Since there may not be a basis for delisting all of these securities
under the rules of the Exchange as currently in effect, the Exchange is
proposing to adopt a rule to be used in rare and unusual circumstances.
Specifically, the new rule will provide that the Exchange may determine
to delist a security due to extraordinary circumstances under which the
Exchange has terminated its Listing Program in connection with the
discontinuation of trading in all securities listed on its market.
    This rule will only be utilized after a delisting determination is
made by the Board of Directors or its designee, and:
    (1) At least 15 days before issuing its delisting determination,
notice is provided to companies; and
    (2) as soon as practicable after the issuance of the delisting
determination notice is provided to the company and the SEC of such
delisting determination.
    (3) The notice to the company of the delisting determination shall
inform the company of the opportunity to appeal.
    This rule will provide the Exchange an additional tool to maintain
the quality of and public confidence in its market, to prevent
fraudulent and manipulative acts and practices, to promote just and
equitable principles of trade, and to protect investors and the public
interest.
    The Exchange would use this authority to delist on the grounds that
it is not currently operating a listing program and, therefore, it is
in the public interest that the Exchange not maintain any appearance of
having any listings on the Exchange as long as programs for listing and
trading cash equities and related activity have ceased. In addition,
prior to implementing any involuntary delistings, the Exchange will
contact each issuer and suggest that it file a Form 25 to effect a
voluntary delisting. Issuers may initiate a voluntary delisting before
the Exchange issues any determination. Thereafter, the Exchange will
move to delist for those issuers that do not act in accordance with
that suggestion. Moreover, issuers that are involuntarily delisted
under the rule being adopted in this filing will have the appeal right
provided for by new Section 2(c)(3) of Chapter XXVII of the Rules of
the Exchange.\3\
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    \3\ The Commission notes that the appeals procedures proposed in
new Section 2(c)(3) of Chapter XXVII are identical to the appeals
procedures currently set forth in Section 2(b)(2) of Chapter XXVII.
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    The NASDAQ OMX Group, Inc. (``NASDAQ OMX''), has acquired the
Exchange. NASDAQ OMX expects that the Exchange will resume a program
for listing and trading cash equities. Accordingly, the Exchange
believes it is appropriate to leave all of its listing rules, as
amended, in place pending rule changes to its listing rules. Upon the
resumption of a listing business by the Exchange, delisted issuers may
be eligible for relisting if their securities meet the applicable
standards of the Exchange.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with the provisions of Section 6 of the Act,\4\ in general, and with
Section 6(b)(5) of the Act,\5\ in particular, in that the proposal is
designed to prevent fraudulent and manipulative acts and practices, to
promote just and equitable principles of trade, to foster cooperation
and coordination with persons engaged in regulating, clearing,
settling, processing information with respect to, and facilitating
transactions in securities, to remove impediments to and perfect the
mechanism of a free and open market and a national market system, and,
in general, to protect investors and the public interest. This proposed
rule change promotes the protection of investors and the public
interest because the Exchange will not maintain any appearance of
having any listings on the Exchange as long as all programs for listing
and trading cash equities and related activity have ceased.
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    \4\ 15 U.S.C. 78f.
    \5\ 15 U.S.C. 78f(b)(5).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will
result in any burden on competition that is not necessary or
appropriate in furtherance of the purposes of the Act, as amended.

C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others

    Written comments were neither solicited nor received.

III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action

    Within 35 days of the date of publication of this notice in the
Federal Register or within such longer period (i) as the Commission may
designate up to 90 days of such date if it finds such longer period to
be appropriate and publishes its reasons for so finding or (ii) as to
which the self-regulatory organization consents, the Commission will:
    (a) By order approve such proposed rule change, or
    (b) institute proceedings to determine whether the proposed rule
change should be disapproved.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://
ww.sec.gov/rules/sro.stml); or
     Send an e-mail to<EMAIL_ADDRESS>Please include
File

Number SR-BSE-2008-36 on the subject line.

Paper Comments

     Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.

All submissions should refer to File Number SR-BSE-2008-36. The file
number should be included on the subject line if e-mail is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/
sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for inspection and
copying in the Commission's Public Reference Room, 100 F Street, NE.,
Washington, DC 20549, on official business days between the hours of 10
a.m. and 3 p.m. Copies of such filings also will be available for
inspection and copying at the principal office of the BSE. All comments
received will be posted without change; the Commission does not edit
personal identifying information from submissions. You should submit
only information that you wish to make available publicly. All
submissions should refer to File Number SR-BSE-2008-36 and should be
submitted on or before December 19, 2008.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\6\
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    \6\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Acting Secretary.
[FR Doc. E8-28240 Filed 11-26-08; 8:45 am]

BILLING CODE 8011-01-P


[Federal Register: August 27, 2009 (Volume 74, Number 165)]
[Notices]
[Page 43729-43737]
[DOCID:fr27au09-104]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. IC-28849; File No. 812-13611]

MML Series Investment Fund, et al.; Notice of Application

August 20, 2009.
AGENCY: The Securities and Exchange Commission (``Commission'').

ACTION: Notice of application for an exemption pursuant to Section 6(c)
of the Investment Company Act of 1940, as amended (the ``1940 Act or
Act''), seeking exemptions 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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    Applicants: MML Series Investment Fund (``MML Trust''), MML Series
Investment Fund II (``MML II Trust'') and Massachusetts Mutual Life
Insurance Company (``MassMutual'') (collectively, ``Applicants'').

SUMMARY:  Summary of Application: Applicants request an order pursuant
to Section 6(c) of the 1940 Act exempting each life insurance company
separate account supporting variable life insurance contracts (``VLI
Account'') (and its insurance company depositor) that may invest in
shares of an existing portfolio of the MML Trust or the MML II Trust
(an ``Existing Fund'') or a ``Future Fund,'' as defined below, from the
provisions of Sections 9(a), 13(a), 15(a) and 15(b) of the Act and
Rules 6e-2(b)(15) and 6e-3(T)(b)(15) thereunder, in situations where
such VLI Accounts hold shares of any Existing Fund or Future Fund
(each, a ``Fund;'' collectively, the ``Funds'') when one or more of the
following other types of investors also hold shares of the Funds: (1) a
life insurance company separate account supporting variable annuity
contracts (a ``VA Account''), (2) any VLI account, (3) a Fund's
investment adviser or affiliated person of the investment adviser
(representing seed money investments in the Fund), and/or (4) trustees
of a qualified group pension or group retirement plan outside the
separate account context. As used herein, a Future Fund is any
investment company (or investment portfolio or series thereof), other
than an Existing Fund, designed to be sold to VLI Accounts and to which
Applicants or their affiliates may in the future serve as investment
advisers, investment subadvisers, investment managers, administrators,
principal underwriters, or sponsors.

DATES:  Filing Date: The application was filed on December 15, 2008,
and amended and restated on April 14, 2009 and August 12, 2009.
    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 14, 2009, 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 may request notification of
a hearing by writing to the Secretary of the Commission.

ADDRESSES: Secretary, Securities and Exchange Commission, 100 F Street,
NE., Washington, DC 20549-1090. Applicants, c/o Andrew M. Goldberg,
Massachusetts Mutual Life Insurance Company, 1295 State Street,
Springfield, MA 01111. Copy to Mary Thornton Payne, Sutherland Asbill &
Brennan LLP, 1275 Pennsylvania Avenue, Washington, DC 20004-2415.

FOR FURTHER INFORMATION CONTACT: Mark Cowan, Senior Counsel, or Zandra
Bailes, Branch Chief, Office of Insurance Products, Division of
Investment Management at<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: The following is a summary of the
application. The complete application is available for a fee from the
Commission's Public Reference Branch, 100 F Street, NE., Washington, DC
20549 ((202) 551-8090).

Applicants' Representations

    1. MML Trust was organized as a Massachusetts business trust on
December 19, 1984. MML Trust is registered under the 1940 Act as an
open-end management investment company (File No. 811-02224). MML Trust
is a series investment company as defined by Rule 18f-2 under the Act
and is currently comprised of twenty-seven series.
    2. Shares of the series of the MML Trust are offered solely to
separate investment accounts established by MassMutual and its life
insurance company subsidiaries. The MML Trust has filed a registration
statement under the Securities Act of 1933 (the ``1933 Act'') on Form
N-1A (File No. 2-39334) to register such shares. The Trust may
establish additional series in the future and additional classes of
shares for such series. Shares of MML Trust are not offered to the
general public.
    3. MML II Trust was formed as a Massachusetts business trust on
February 8, 2005. MML II Trust is registered under the 1940 Act as an
open-end management investment company (File No. 811-21714). MML II
Trust is a series investment company as defined by Rule 18f-2 under the
Act and is currently comprised of ten series.
    4. Shares of the series of the MML II Trust are offered solely to
separate investment accounts established by MassMutual and its life
insurance company subsidiaries. The MML II Trust has filed a
registration statement under the 1933 Act on Form N-1A (File No. 333-
122804) to register such shares. The Trust may establish additional
series in the future and additional classes of shares for such series.
Shares of MML II Trust are not offered to the general public.
    5. MassMutual is the investment adviser to the MML Trust and the
MML II Trust and is responsible for providing all necessary investment
management and administrative services. MassMutual is paid an
investment management fee from each Fund's

average daily net assets. MassMutual contracts with subadvisers to help
manage the Funds.
    6. The Existing Funds and Future Funds may offer their shares to
VLI and VA Accounts of various life insurance companies
(``Participating Insurance Companies'') to serve as an investment
medium to support variable life insurance contracts and variable
annuity contracts (together, ``Variable Contracts'') issued through
such accounts. Each VLI Account and VA Account is or will be
established as a segregated asset account by a Participating Insurance
Company pursuant to the insurance law of the insurance company's State
of domicile. As such, the assets of each will be the property of the
Participating Insurance Company, and that portion of the assets of such
an Account equal to the reserves and other contract liabilities with
respect to the Account will not be chargeable with liabilities arising
out of any other business that the insurance company may conduct. The
income, gains and losses, realized or unrealized from such an Account's
assets will be credited to or charged against the Account without
regard to other income, gains or losses of the Participating Insurance
Company. If a VLI Account or VA Account is registered as an investment
company, it will be a ``separate account'' as defined by Rule 0-1(e)
(or any successor rule) under the 1940 Act and will be registered as a
unit investment trust. For purposes of the Act, the Participating
Insurance Company that establishes such a registered VLI Account or VA
Account is the depositor and sponsor of the Account as those terms have
been interpreted by the Commission with respect to variable life
insurance and variable annuity separate accounts.
    7. The Participating Insurance Companies are currently MassMutual
and MassMutual's affiliated life insurance companies: C. M. Life
Insurance Company, and MML Bay State Life Insurance Company. Various
other life insurance companies that are not affiliated persons of
MassMutual may be Participating Insurance Companies in the future.
MassMutual is an affiliated person of the MML Trust and MML II Trust.
    8. As described more fully below, the Funds will sell their shares
to registered VLI and VA Accounts only if each Participating Insurance
Company sponsoring such a VLI or VA Account enters into a participation
agreement with the Fund. The participation agreements define or will
define the relationship between each Fund and each Participating
Insurance Company and memorialize or will memorialize, among other
matters, the fact that, except where the agreement specifically
provides otherwise, the Participating Insurance Company will remain
responsible for establishing and maintaining any VLI or VA Account
covered by the agreement and for complying with all applicable
requirements of State and Federal law pertaining to such accounts and
to the sale and distribution of variable contracts issued through such
accounts. The participation agreements also memorialize or will
memorialize, among other matters, the fact that, with regard to
compliance with Federal securities laws, unless the agreement
specifically states otherwise, the Funds' obligations relate solely to
offering and selling their shares to VLI and VA Accounts covered.
    9. The use of a common management investment company (or investment
portfolio thereof) as an investment medium for both VLI Accounts and VA
Accounts of the same Participating Insurance Company, or of two or more
insurance companies that are affiliated persons of each other, is
referred to herein as ``mixed funding.'' The use of a common management
investment company (or investment portfolio thereof) as an investment
medium for VLI Accounts and/or VA Accounts of two or more Participating
Insurance Companies that are not affiliated persons of each other, is
referred to herein as ``shared funding.''
    10. Applicants propose that each Existing Fund and any Future Fund
may offer and sell its shares directly to a qualified group pension or
group retirement plan (a ``Plan'' or ``Qualified Plan'') outside the
separate account context. Federal tax law permits investment companies
such as the Funds to increase their net assets by selling shares to
Plans.
    11. Plans may invest in shares of an investment company as the sole
investment under the Plan, or as one of several investments. Plan
participants may or may not be given an investment choice depending on
the terms of the Plan itself. The trustees or other fiduciaries of a
Plan may vote investment company shares held by the Plan in their own
discretion or, if the applicable Plan so provides, vote such shares in
accordance with instructions from participants in such Plans.
Applicants have no control over whether trustees or other fiduciaries
of Plans, rather than participants in the Plans, have the right to vote
under any particular Plan. Each Plan must be administered in accordance
with the terms of the Plan and as determined by its trustee or
trustees.
    12. Applicants propose that any Fund may also sell shares to its
investment adviser. The Treasury Regulations permit such sales as long
as the return on shares held by the adviser is computed in the same
manner as shares held by VLI Accounts and VA Accounts, the adviser does
not intend to sell the shares to the public, and sales to an investment
adviser are only made in connection with the creation or management of
the Fund for the purpose of providing seed money for the Fund.
    13. The promulgation of Rules 6e-2(b)(15) and 6e-3(T)(b)(15)
preceded the issuance of the Treasury Regulations permitting the shares
of Funds to be held by a Qualified Plan or an adviser for the Fund
without adversely affecting the ability of the VLI Account to also hold
shares. The use of a common management investment company (or
investment portfolio thereof) as an investment medium for VLI Accounts,
VA Accounts, investment advisers, and Qualified Plans is referred to
herein as ``extended mixed funding.''

Applicants' Legal Analysis

    1. Section 9(a)(2) of the 1940 Act makes it unlawful for any
company to serve as an investment adviser or principal underwriter of
any investment company, including a unit investment trust, if an
affiliated person of that company is subject to disqualification
enumerated in Section 9(a)(1) or (2) of the Act. Sections 13(a), 15(a),
and 15(b) of the Act have been deemed by the Commission to require
``pass-through'' voting with respect to an underlying investment
company's shares.
    2. Rule 6e-2(b)(15) under the 1940 Act provides partial exemptions
from Sections 9(a), 13(a), 15(a), and 15(b) of the Act to VLI Accounts
supporting scheduled premium VLI Contracts and to their life insurance
company depositors. The exemptions granted by the Rule are available,
however, only where a Fund offers its shares exclusively to VLI
Accounts of the same Participating Insurance Company and/or of
Participating Insurance Companies that are affiliated persons of the
same Participating Insurance Company and then, only where scheduled
premium VLI Contracts are issued through such VLI Accounts. Therefore,
VLI Accounts, their depositors and their principal underwriters may not
rely on the exemptions provided by Rule 6e-2(b)(15) if shares of the
Fund are held by a VLI Account through which flexible premium VLI
Contracts are issued, a VLI Account of an unaffiliated Participating
Insurance Company, an unaffiliated investment adviser, any VA

Account or a Qualified Plan. In other words, Rule 6e-2(b)(15) does not
provide exemptions when a scheduled premium VLI Account invests in
shares of a management investment company that serves as a vehicle for
mixed funding, extended mixed funding or shared funding.
    3. Accordingly, Applicants request an order of the Commission
granting exemptions from Sections 9(a), 13(a), 15(a), and 15(b) of the
1940 Act, and Rule 6e-2(b)(15) thereunder, in cases where a scheduled
premium VLI Account holds shares of Funds and one or more of the
following types of investors also hold shares of such Funds: (1) VA
Accounts, (2) VLI Accounts, (3) a Fund's investment adviser (or an
affiliated person of the investment adviser), and/or (4) a Qualified
Plan.
    4. Rule 6e-3(T)(b)(15) under the 1940 Act provides partial
exemptions from Sections 9(a), 13(a), 15(a), and 15(b) of the Act to
VLI Accounts supporting flexible premium variable life insurance
contracts and their life insurance company depositors. The exemptions
granted by the Rule are available, however, only where a Fund offers
its shares exclusively to VLI Accounts (through which either scheduled
premium or flexible premium VLI Contracts are issued) of the same
Participating Insurance Company and/or of Participating Insurance
Companies that are affiliated persons of the same Participating
Insurance Company, VA Accounts of the same Participating Insurance
Company or of affiliated Participating Insurance Companies, or the
general account of the same Participating Insurance Company or of
affiliated Participating Insurance Companies. Therefore, VLI Accounts,
their depositors and their principal underwriters may not rely on the
exemptions provided by Rule 6e-3(T)(b)(15) if shares of the Fund are
held by a VLI Account of an unaffiliated Participating Insurance
Company, a VA Account of an unaffiliated Participating Insurance
Company, an unaffiliated investment adviser, or a Qualified Plan. In
other words, Rule 6e-3(T)(b)(15) provides exemptions when a VLI Account
supporting flexible premium VLI Contracts invests in shares of a
management investment company that serves as a vehicle for mixed
funding but does not provide exemptions when such a VLI Account invests
in shares of a management investment company that serves as a vehicle
for extended mixed funding or shared funding.
    5. Accordingly, Applicants request an order of the Commission
granting exemptions from Sections 9(a), 13(a), 15(a) and 15(b) of the
1940 Act and Rule 6e-3(T)(b)(15) thereunder, in cases where a flexible
premium VLI Account holds shares of Funds and one or more of the
following types of investors also hold shares of such Funds: (1) VA
Accounts, (2) VLI Accounts, (3) a Fund's investment adviser (or an
affiliated person of the investment adviser), and/or (4) a Qualified
Plan.
    6. As explained below, Applicants maintain that there is no policy
reason for the sale of Fund shares to Qualified Plans to prohibit or
otherwise limit a Participating Insurance Company from relying on the
relief provided by Rules 6e-2(b)(15) and 6e-3(T)(b)(15).
Notwithstanding, Rule 6e-2 and Rule 6e-3(T) each specifically provide
that the relief granted thereunder is available only where shares of
the underlying fund are offered exclusively to insurance company
separate accounts. In this regard, Applicants request exemptive relief
in cases where VLI Accounts hold shares of the Funds when shares of the
Funds are also sold to Qualified Plans.
    7. Applicants are not aware of any reason for excluding separate
accounts and investment companies engaged in shared funding from the
exemptive relief provided under Rules 6e-2(b)(15) and 6e-3(T)(b)(15),
or for excluding separate accounts and investment companies engaged in
mixed funding from the exemptive relief provided under Rule 6e-
2(b)(15). Similarly, Applicants are not aware of any reason for
excluding Participating Insurance Companies from the exemptive relief
requested because the Funds may also sell their shares to qualified
pension and retirement plans. Rather, Applicants assert that the
proposed sale of shares of the Funds to Qualified Plans, in fact, may
allow for the development of larger pools of assets resulting in the
potential for greater investment and diversification opportunities, and
for decreased expenses at higher asset levels resulting in greater cost
efficiencies.
    8. For the reasons explained below, Applicants have concluded that
investment by Qualified Plans in the Funds should not increase the risk
of material irreconcilable conflicts between owners of VLI Contracts
and other types of investors or between owners of VLI Contracts issued
by unaffiliated Participating Insurance Companies.
    9. Consistent with the Commission's authority under Section 6(c) of
the Act to grant exemptive orders to a class or classes of persons and
transactions, Applicants request exemptions for a class consisting of
Participating Insurance Companies and their VLI Accounts investing in
the Existing Funds and Future Funds, as well as their principal
underwriters, that currently invest or in the future will invest in the
Funds.
    10. There is ample precedent, in a variety of contexts, for
granting exemptive relief not only to the applicants in a given case,
but also to members of the class not currently identified that may be
similarly situated in the future. Such class relief has been granted in
various contexts and from a wide variety of the 1940 Act's provisions,
including class exemptions in the context of mixed funding, extended
mixed funding, and shared funding. Such class exemptions have included,
among other things, exemptions permitting the sale of shares by unnamed
underlying funds to VLI and VA Accounts of Participating Insurance
Companies and Qualified Plans.
    11. Applicants note that the Commission has previously granted
exemptive orders in cases where open-end management investment
companies offer their shares directly to Qualified Plans in addition to
offering their shares to separate accounts of affiliated or
unaffiliated insurance companies which issue either or both variable
annuity contracts or variable life insurance contracts. Applicants
State that the order sought in their application is largely identical
to these precedents with respect to the scope of the exemptions and the
conditions proposed by the Applicants.
    12. Section 6(c) of the 1940 Act provides, in part, that the
Commission, by order upon application, may conditionally or
unconditionally exempt any person, security or transaction, or any
class or classes of persons, securities or transactions, from any
provision or provisions of the Act, or any rule or regulation
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 Act. Applicants submit that the exemptions requested
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 Act.
    13. Section 9(a)(3) of the 1940 Act provides, among other things,
that it is unlawful for any company to serve as investment adviser or
principal underwriter of 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). Rules 6e-
2(b)(15)(i) and (ii) and Rules 6e-3(T)(b)(15)(i) and (ii) under the Act
provide exemptions from Section 9(a) under certain circumstances,
subject to the limitations discussed above on mixed funding, extended
mixed funding and shared funding. These exemptions limit the
application of the eligibility restrictions to affiliated individuals
or companies that directly participate in management of the underlying
investment company.
    14. The relief provided by Rules 6e-2(b)(15)(i) and 6e-
3(T)(b)(15)(i) permits a person that is disqualified under Sections
9(a)(1) or (2) of the 1940 Act to serve as an officer, director, or
employee of the life insurance company, or any of its affiliates, as
long as that person does not participate directly in the management or
administration of the underlying investment company. The relief
provided by Rules 6e-2(b)(15)(ii) and 6e-3(T)(b)(15)(ii) under the Act
permits the life insurance company to serve as the underlying
investment company's investment adviser or principal underwriter,
provided that none of the insurer's personnel who are ineligible
pursuant to Section 9(a) participates in the management or
administration of the investment company.
    15. In effect, the partial relief granted in Rules 6e-2(b)(15) and
6e-3(T)(b)(15) under the Act from the requirements of Section 9 of the
Act limits the amount of monitoring 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 Act to apply the provisions of Section
9(a) to all individuals in a large insurance complex, most of whom will
have no involvement in matters pertaining to investment companies in
that organization. Applicants assert that it is also unnecessary to
apply Section 9(a) of the Act to the many individuals in various
unaffiliated insurance companies (or affiliated companies of
Participating Insurance Companies) that may utilize the Funds as
investment vehicles for VLI Accounts and VA Accounts. There is no
regulatory purpose served in extending the monitoring requirements to
embrace a full application of Section 9(a)'s eligibility restrictions
because of mixed funding, extended mixed funding or shared funding. The
Participating Insurance Companies and Qualified Plans are not expected
to play any role in the management of the Funds. Those individuals who
participate in the management of the Funds will remain the same
regardless of which VA Accounts, VLI Accounts, insurance companies,
investment advisers, or Qualified Plans use such Funds. Applying the
monitoring requirements of Section 9(a) of the Act because of
investment by VLI Accounts and Qualified Plans would be unjustified and
would not serve any regulatory purpose. Furthermore, the increased
monitoring costs could reduce the net rates of return realized by
owners of VLI Contracts and Plan participants. Moreover, in the case of
Qualified Plans, the Plans, unlike separate accounts, are not
themselves investment companies, and therefore are not subject to
Section 9 of the Act. Furthermore, it is not anticipated that a
Qualified Plan would be an affiliated person of the Funds except by
virtue of its holding 5% or more of a Fund's shares.
    16. Rules 6e-2(b)(15)(iii) and 6e-3(T)(b)(15)(iii) under the Act
provide exemptions from pass-through voting requirements with respect
to several significant matters, assuming the limitations on mixed
funding, extended mixed funding and shared funding are observed. Rules
6e-2(b)(15)(iii)(A) and 6e-3(T)(b)(15)(iii)(A) provide that the
insurance company may disregard the voting instructions of its variable
life insurance contract owners with respect to the investments of an
underlying investment company, or any contract between such an
investment company 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 Rules 6e-2 and 6e-3(T)).
    17. Rules 6e-2(b)(15)(iii)(B) and 6e-3(T)(b)(15)(iii)(A)(2) provide
that an insurance company may disregard the voting instructions of
owners of its variable life insurance contracts if such owners initiate
any change in an underlying investment 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), (b)(7)(ii)(B) and
(b)(7)(ii)(C) of Rules 6e-2 and 6e-3(T)).
    18. In the case of a change in the investment policies of the
underlying investment company, the insurance company, in order to
disregard contract owner voting instructions, must make a good faith
determination that such a change either would: (1) Violate State law,
or (2) result in investments that either (a) would not be consistent
with the investment objectives of its separate account, or (b) would
vary from the general quality and nature of investments and investment
techniques used by other separate accounts of the company, or of an
affiliated life insurance company with similar investment objectives.
    19. Both Rule 6e-2 and Rule 6e-3(T) generally recognize that a
variable life insurance contract is primarily a life insurance contract
containing many important elements unique to life insurance contracts
and subject to extensive State insurance regulation. In adopting
subparagraph (b)(15)(iii) of these Rules, the Commission implicitly
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.
    20. The sale of Fund shares to Qualified Plans or investment
advisers will not have any impact on the exemptions requested herein
regarding the disregard of pass-through voting rights. Shares sold to
Qualified Plans will be held by such Plans. The exercise of voting
rights by Plans, whether by trustees, participants, beneficiaries, or
investment managers engaged by the Plans, does not raise the type of
issues respecting disregard of voting rights that are raised by VLI
Accounts. With respect to Plans, which are not registered as investment
companies under the 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 Plan assets to certain
specified persons. For example, for many Plans, under Section 403(a) of
Employee Retirement Income Security Act of 1974, as amended
(``ERISA''), shares of a portfolio of an investment company sold to a
Plan must be held by the trust(s) funding the Plan. Section 403(a) also
provides that the trustee(s) of such trusts must have exclusive
authority and discretion to manage and control the Plan, with two
exceptions: (1) When the Plan expressly provides that the trustee(s)
are subject to the direction of a named fiduciary who is not a trustee,
in which case the trustee(s) are subject to proper directions made in
accordance with the terms of the Plan and not contrary to ERISA, and
(2) when the authority to manage, acquire, or dispose of assets of the
Plan is delegated to one or more investment managers pursuant to
Section 402(c)(3) of ERISA. For such Plans, unless one of the above two
exceptions stated in Section 403(a) applies, Plan trustees have the
exclusive authority and responsibility for voting

investment company shares (or related proxies) held by their Plan.
    21. If a named fiduciary to a 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 trustee(s) or
another named fiduciary. The Plans may have their trustee(s) or other
fiduciaries exercise voting rights attributable to investment
securities held by the Plans in their discretion. Some Plans, however,
may provide for the trustee(s), an investment adviser (or advisers), or
another named fiduciary to exercise voting rights in accordance with
instructions from Plan participants.
    22. Where 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 the
Variable Contract owners and Plan participants with respect to voting
of the respective Fund shares. Accordingly, unlike the circumstances
surrounding VLI Accounts and VA Accounts, because Plans are not
required to pass through voting rights to participants, the issue of
resolution of material irreconcilable conflicts of interest should not
arise with respect to voting Fund shares.
    23. In addition, if a Qualified Plan were to hold a controlling
interest in a Fund, Applicants do not believe that such control would
disadvantage other investors in such Fund to any greater extent than is
the case when any institutional shareholder holds a majority of the
shares of any open-end management investment company. In this regard,
Applicants submit that investment in a Fund by a Plan will not create
any of the voting complications occasioned by VLI Account investments
in the Fund. Unlike VLI Account investments, Plan voting rights cannot
be frustrated by veto rights of Participating Insurance Companies or
State insurance regulators.
    24. Where a Qualified Plan provides participants with the right to
instruct the trustee(s) as to how to vote Fund shares, Applicants see
no reason why such participants generally or those in a particular
Plan, either as a single group or in combination with participants in
other Plans, would vote in a manner that would disadvantage VLI
Contract owners. The purchase of shares by Plans that provide voting
rights does not present any complications not otherwise occasioned by
mixed or shared funding.
    25. Similarly, the sale of Fund shares to an investment adviser
will not have any impact on the exemptions requested herein regarding
the disregard of pass-through voting rights. The exercise of voting
rights by investment advisers does not raise the type of issues
respecting disregard of voting rights that are raised by VLI Accounts.
With respect to investment advisers, which are not registered as
investment companies under the Act, there is no requirement to pass
through voting rights.
    26. Applicants recognize that the prohibitions on mixed and shared
funding might reflect concern regarding possible different investment
motivations among investors. When Rule 6e-2 was first adopted, variable
annuity separate accounts could invest in mutual funds whose shares
were also offered to the general public. Therefore, the Commission
staff may have been concerned with the potentially different investment
motivations of public shareholders and owners of variable life
insurance contracts. There also may have been some concern with respect
to the problems of permitting a State insurance regulatory authority to
affect the operations of a publicly available mutual fund and the
investment decisions of public shareholders.
    27. For reasons unrelated to the Act, however, Revenue Ruling 81-
225 (Sept. 25, 1981) effectively deprived variable annuity contracts
funded by publicly available mutual funds of their tax-benefited
status. The Tax Reform Act of 1984 codified the prohibition against the
use of publicly available mutual funds as an investment vehicle for
both variable annuity contracts and variable life insurance contracts.
In particular, Section 817(h) of the Code, in effect, requires that the
investments made by both variable annuity and variable life insurance
separate accounts be ``adequately diversified.'' If such a separate
account is organized as part of a ``two-tiered'' arrangement where the
account invests in shares of an underlying open-end investment company
(i.e., an underlying fund), the diversification test will be applied to
the underlying fund (or to each of several underlying funds), rather
than to the separate account itself, but only if ``all of the
beneficial interests'' in the underlying fund ``are held by one or more
insurance companies (or affiliated companies) in their general account
or in segregated asset accounts.'' Accordingly, a separate account that
invests in a publicly available mutual fund will not be adequately
diversified for these purposes. As a result, any underlying fund,
including the Funds, that sells shares to VA Accounts or VLI Accounts,
would, in effect, be precluded from also selling its shares to the
public. Consequently, the Funds may not sell their shares to the
public.
    28. Applicants assert that the rights of an insurance company or a
State insurance regulator to disregard the voting instructions of
owners of Variable Contracts is not inconsistent with either mixed
funding or shared funding. The National Association of Insurance
Commissioners Variable Life Insurance Model Regulation (the ``NAIC
Model Regulation'') suggests that it is unlikely that insurance
regulators would find an underlying fund's investment policy,
investment adviser or principal underwriter objectionable for one type
of Variable Contract but not another type. The NAIC Model Regulation
has long permitted the use of a single underlying fund for different
separate accounts. Moreover, Article VI, Section 3 of the NAIC Model
Regulation has been amended to remove a previous prohibition on one
separate account investing in another separate account. Lastly, the
NAIC Model Regulation does not distinguish between scheduled premium
and flexible premium variable life insurance contracts. The NAIC Model
Regulation, therefore, reflects the NAIC's apparent confidence that
such combined funding is appropriate and that State insurance
regulators can adequately protect the interests of owners of all
variable contracts.
    29. Applicants assert that shared funding by unaffiliated insurance
companies 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 regulator could require action
that is inconsistent with the requirements of other States in which the
insurance company offers its contracts. However, the fact that
different insurers may be domiciled in different States does not create
a significantly different or enlarged problem.
    30. Shared funding by unaffiliated insurers, in this respect, is no
different than the use of the same investment company as the funding
vehicle for affiliated insurers, which Rules 6e-2(b)(15) and 6e-
3(T)(b)(15) permit. Affiliated insurers 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. In any event, the conditions set forth below
are designed to safeguard against, and provide procedures for
resolving, any adverse effects that differences among State regulatory
requirements may produce. If a particular State insurance regulator's
decision conflicts with the

majority of other State regulators, then the affected Participating
Insurance Company will be required to withdraw its separate account
investments in the relevant Fund. This requirement will be provided for
in the participation agreement that will be entered into by
Participating Insurance Companies with the relevant Fund.
    31. Rules 6e-2(b)(15) and 6e-3(T)(b)(15) give Participating
Insurance Companies the right to disregard the voting instructions of
VLI Contract owners in certain circumstances. This right derives from
the authority of State insurance regulators over VLI Accounts and VA
Accounts. Under Rules 6e-2(b)(15) and 6e-3(T)(b)(15), a Participating
Insurance Company may disregard VLI Contract owner voting instructions
only with respect to certain specified items. 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 such Contract
owners. The potential for disagreement is limited by the requirements
in Rules 6e-2 and 6e-3(T) that the Participating Insurance Company's
disregard of voting instructions be reasonable and based on specific
good faith determinations.
    32. A particular Participating Insurance Company's disregard of
voting instructions, nevertheless, could conflict with the voting
instructions of a majority of VLI Contract owners. The Participating
Insurance Company's action possibly could be different than the
determination of all or some of the other Participating Insurance
Companies (including affiliated insurers) that the voting instructions
of VLI Contract owners should prevail, and either could 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, then the Participating
Insurance Company may be required, at the relevant Fund's election, to
withdraw its VLI Accounts' and VA Accounts' investments in the relevant
Fund. No charge or penalty will be imposed as a result of such
withdrawal. This requirement will be provided for in the participation
agreement entered into by the Participating Insurance Companies with
the relevant Fund.
    33. Applicants assert that there is no reason why the investment
policies of an Fund would or should be materially different from what
these policies would or should be if the Fund supported only VA
Accounts or VLI Accounts, whether flexible premium or scheduled premium
VLI Contrasts. Each type of insurance contract is designed as a long-
term investment program.
    34. Each Fund will be managed to attempt to achieve its specified
investment objective, and not favor or disfavor any particular
Participating Insurance Company or type of insurance contract. There is
no reason to believe that different features of various types of
Variable Contracts will lead to different investment policies for each
or for different VLI Accounts and VA Accounts. The sale of Variable
Contracts and ultimate success of all VA Accounts and VLI Accounts
depends, at least in part, on satisfactory investment performance,
which provides an incentive for each Participating Insurance Company to
seek optimal investment performance.
    35. Furthermore, no single investment strategy can be identified as
appropriate to a particular Variable Contract. Each ``pool'' of VLI
Contract and VA Contract owners is composed of individuals of diverse
financial status, age, insurance needs and investment goals. A Fund
supporting even one type of Variable Contract must accommodate these
diverse factors in order to attract and retain purchasers. Permitting
mixed and shared funding will provide economic support for the
continuation of the Funds. Mixed and shared funding will broaden the
base of potential Variable Contract owner investors, which may
facilitate the establishment of additional Funds serving diverse goals.
    36. Applicants do not believe that the sale of the shares to Plans
will increase the potential for material irreconcilable conflicts of
interest between or among different types of investors. In particular,
Applicants see very little potential for such conflicts beyond those
that would otherwise exist between owners of VLI Contracts and VA
Contracts. Applicants submit that either there are no conflicts of
interest or that there exists the ability by the affected parties to
resolve such conflicts consistent with the best interests of VLI
Contract owners, VA Contract owners and Plan participants.
    37. Applicants considered whether there are any issues raised under
the Code, Treasury Regulations, or Revenue Rulings thereunder, if
Qualified Plans, VA Accounts, and VLI Accounts all invest in the same
Fund. Applicants have concluded that neither the Code, nor the Treasury
Regulations nor Revenue Rulings thereunder, present any inherent
conflicts of interest if Plans, VLI Accounts, and VA Accounts all
invest in the same Fund.
    38. Applicants note that, while there are differences in the manner
in which distributions from VLI Accounts and Qualified Plans are taxed,
these differences have no impact on the Funds. When distributions are
to be made, and a VLI Account or Plan is unable to net purchase
payments to make distributions, the VLI Account or Plan will redeem
shares of the relevant Fund at its net asset values in conformity with
Rule 22c-1 under the Act (without the imposition of any sales charge)
to provide proceeds to meet distribution needs. A Participating
Insurance Company will then make distributions in accordance with the
terms of its VLI Contract and a Plan will then make distributions in
accordance with the terms of the Plan.
    39. Applicants considered whether it is possible to provide an
equitable means of giving voting rights to VLI Contract owners and
Plans. In connection with any meeting of Fund shareholders, the Fund's
transfer agent will inform each Participating Insurance Company,
investment adviser, and Qualified Plan of their share holdings and
provide other information necessary for such shareholders to
participate in the meeting (e.g., proxy materials). Each Participating
Insurance Company then will solicit voting instructions from owners of
VLI Contracts and VA Contracts as required by either Rules 6e-2 or 6e-
3(T), or Section 12(d)(1)(E)(iii)(aa) of the Act, as applicable, and
its participation agreement with the relevant Fund. Shares held by
Plans will be voted in accordance with applicable law. The voting
rights provided to Plans with respect to the shares would be no
different from the voting rights that are provided to Plans with
respect to shares of mutual funds sold to the general public.
Furthermore, if a material irreconcilable conflict arises because of a
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 Plan may be required, at the election of
the relevant Fund, to withdraw its investment in the Fund, and no
charge or penalty will be imposed as a result of such withdrawal.
    40. Applicants do not believe that the ability of a Fund to sell
its shares to its investment adviser or Qualified Plans gives rise to a
senior security. ``Senior Security'' is defined in Section 18(g) of the
Act to include ``any stock of a class having priority over any other
class as to distribution of assets or payment of dividends.'' As noted
above, regardless of the rights and benefits of participants under
Plans and owners of VLI

Contracts, VLI Accounts, VA Accounts, Participating Insurance
Companies, and Plans, only have, or will only have, rights with respect
to their respective shares of a Fund. These parties can only redeem
such shares at net asset value. No shareholder of a Fund has any
preference over any other shareholder with respect to distribution of
assets or payment of dividends.
    41. Applicants do not believe that the veto power of State
insurance commissioners over certain potential changes to Fund
investment objectives approved by owners of VLI Contracts creates
conflicts between the interests of such owners and the interests of
Plan participants. Applicants note that a basic premise of corporate
democracy and shareholder voting is that not all shareholders may agree
with a particular proposal. Their interests and opinions may differ,
but this does not mean that inherent conflicts of interest exist
between or among such shareholders or that occasional conflicts of
interest that do occur between or among them are likely to be
irreconcilable.
    42. Although Participating Insurance Companies may have to overcome
regulatory impediments in redeeming shares of a Fund held by their VLI
Accounts, the Plans and the participants in participant-directed Plans
can make decisions quickly and redeem their shares in a Fund and
reinvest in another investment company or other funding vehicle without
impediments, or as is the case with most Plans, hold cash pending
suitable investment. As a result, conflicts between the interests of
VLI Contract owners and the interests of Plans and Plan participants
can usually be resolved quickly since the Plans can, on their own,
redeem their Fund shares.
    43. Finally, Applicants considered whether there is a potential for
future conflicts of interest between Participating Insurance Companies
and Qualified Plans created by future changes in the tax laws.
Applicants do not see any greater potential for material irreconcilable
conflicts arising between the interests of VLI Contract owners (or, for
that matter, VA Contract owners) and Plan participants from future
changes in the Federal tax laws than that which already exists between
VLI Contract owners and VA Contract owners.
    44. Applicants recognize that the foregoing is not an all-inclusive
list, but rather is representative of issues that they believe are
relevant to their application. Applicants believe that the discussion
contained therein demonstrates that the sale of Fund shares to
Qualified Plans would not increase the risk of material irreconcilable
conflicts between the interests of Plan participants and VLI Contract
owners or other investors. Further, Applicants submit that the use of
the Funds with respect to Plans is not substantially dissimilar from
each Fund's current and anticipated use, in that Plans, like VLI
Accounts, are generally long-term investors.
    45. Applicants assert that permitting a Fund to sell its shares to
its investment adviser (or the adviser's affiliates) for the purpose of
obtaining seed money will enhance management of each Fund without
raising significant concerns regarding material irreconcilable
conflicts among different types of investors. A potential source of
initial capital is a Fund's investment adviser. However, provision of
seed capital or the purchase of shares in connection with the
management of a Fund by its investment adviser may be deemed to violate
the exclusivity requirement of Rule 6e-2(b)(15) and/or Rule 6e-
3(T)(b)(15). Given the conditions of Treasury Regulation 1.817-5(f)(3)
and the harmony of interest between a Fund, on the one hand, and its
investment adviser (or affiliates), on the other, Applicants assert
that little incentive for overreaching exists. Furthermore, such
investment should not implicate the concerns discussed above regarding
the creation of material irreconcilable conflicts. Instead, investments
by an investment adviser (or its affiliates), will permit the orderly
and efficient creation and operation of a Fund, and reduce the expense
and uncertainty of using outside parties at the early stages of the
Fund's operations.
    46. Various factors have limited the number of insurance companies
that offer Variable Contracts. These factors include the costs of
organizing and operating a funding vehicle, certain insurers' lack of
experience with respect to investment management, and the lack of name
recognition by the public of certain 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 Funds as a common investment vehicle for VLI
Accounts would reduce or eliminate these concerns. Mixed and shared
funding should also provide several benefits to owners of VLI Contracts
by eliminating a significant portion of the costs of establishing and
administering separate underlying funds.
    47. Participating Insurance Companies will benefit not only from
the investment and administrative expertise of the Funds' investment
advisers and subadvisers, but also from the potential cost efficiencies
and investment flexibility afforded by larger pools of funds. Mixed and
shared funding also would permit a greater amount of assets available
for investment by a Fund, thereby promoting economies of scale, by
permitting increased safety through greater diversification, or by
making the addition of new Funds more feasible. Therefore, mixed and
shared funding will encourage more insurance companies to offer VLI
Accounts. This should result in increased competition with respect to
both VLI Account design and pricing, which can in turn be expected to
result in more product variety. Applicants also assert that sale of
shares in a Fund to Qualified Plans, in addition to VLI Accounts and VA
Accounts, will result in an increased amount of assets available for
investment in a Fund. This may benefit VLI Account owners by promoting
economies of scale, permitting increased safety of investments through
greater diversification, and making the addition of new Funds more
feasible.
    48. Applicants also submit that, regardless of the type of
shareholder in a Fund, its investment adviser (and the adviser's
affiliates) are or would be contractually and otherwise obligated to
manage the Fund solely and exclusively in accordance with that Fund's
investment objectives, policies and restrictions, as well as any
guidelines established by its board of trustees (a ``Board''). Thus,
each Fund will be managed in the same manner as any other mutual fund.
    49. Applicants note that VLI Accounts historically have been
employed to accumulate shares of mutual funds that are not affiliated
with the depositor or sponsor of the VLI Account. In particular,
Applicants assert that sales of Fund shares, as described above, will
not have any adverse Federal income tax consequences to other investors
in such a Fund.
    50. In addition, Applicants assert that granting the exemptions
requested herein is in the public interest and, as discussed above,
will not compromise the regulatory purposes of Sections 9(a), 13(a),
15(a), or 15(b) of the Act or Rules 6e-2 or 6e-3(T) thereunder.

Applicants' Conditions

    Applicants agree that the order granting the requested relief shall
be subject to the following conditions which shall apply to the Funds
as well as any Future Fund that relies on the order:

    1. A majority of the Board of each Fund will consist of persons who
are not ``interested persons'' of the 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 death, disqualification or bona fide
resignation of any trustee or trustees, then the operation of this
condition will be suspended: (a) For a period of 90 days if the vacancy
or vacancies may be filled by the Board, (b) for a period of 150 days
if a vote of shareholders is required to fill the vacancy or vacancies,
or (c) for such longer period as the Commission may prescribe by order
upon application, or by future rule.
    2. Each Board will monitor its respective Fund for the existence of
any material irreconcilable conflict between and among the interests of
the owners of all VLI Contracts and VA Contracts and participants of
all Plans investing in the Fund, 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:
(a) An action by any State insurance regulatory authority, (b) a change
in applicable Federal or State insurance, tax, or securities laws or
regulations, or a public ruling, private letter ruling, no-action or
interpretive letter, or any similar action by insurance, tax or
securities regulatory authorities, (c) an administrative or judicial
decision in any relevant proceeding, (d) the manner in which the
investments of the Fund are being managed, (e) a difference in voting
instructions given by VA Contract owners, VLI Contract owners, and
Plans or Plan participants, (f) a decision by a Participating Insurance
Company to disregard the voting instructions of contract owners; or (g)
if applicable, a decision by a Plan to disregard the voting
instructions of Plan participants.
    3. Participating Insurance Companies (on their own behalf, as well
as by virtue of any investment of general account assets in a Fund),
any investment adviser to a Fund, and any Plan that executes a
participation agreement upon its becoming an owner of 10% or more of
the net assets of a Fund (collectively, ``Participants'') will report
any potential or existing conflicts to the relevant Board. Each
Participant will be responsible for assisting the Board in carrying out
the Board's responsibilities under these conditions by providing the
Board with all information reasonably necessary for the Board to
consider any issues raised. This responsibility includes, but is not
limited to, an obligation by each Participating Insurance Company to
inform the Board whenever Variable Contract owner voting instructions
are disregarded, and, if pass-through voting is applicable, an
obligation by each Plan 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 Participating Insurance Companies
under their participation agreement with a Fund, and these
responsibilities will be carried out with a view only to the interests
of the Variable Contract owners. The responsibility to report such
information and conflicts, and to assist the Board, also will be
contractual obligations of all Plans under their participation
agreement with a Fund, and such agreements will provide that these
responsibilities will be carried out with a view only to the interests
of Plan participants.
    4. If it is determined by a majority of a Board, or a majority of
the disinterested directors/trustees of such Board, that a material
irreconcilable conflict exists, then the relevant Participant will, at
its expense and to the extent reasonably practicable (as determined by
a majority of the disinterested directors/trustees), take whatever
steps are necessary to remedy or eliminate the material irreconcilable
conflict, up to and including: (a) Withdrawing the assets allocable to
some or all of their VLI Accounts or VA Accounts from the Fund and
reinvesting such assets in a different investment vehicle including
another Fund, (b) in the case of a Participating Insurance Company,
submitting the question as to whether such segregation should be
implemented to a vote of all affected Variable Contract owners and, as
appropriate, segregating the assets of any appropriate group (i.e., VA
Contract owners or VLI Contact owners of one or more Participating
Insurance Companies) that votes in favor of such segregation, or
offering to the affected Contract owners the option of making such a
change, (c) withdrawing the assets allocable to some or all of the
Plans from the affected Fund and reinvesting them in a different
investment medium, and (d) establishing a new registered management
investment company or managed separate account. If a material
irreconcilable conflict arises because of a decision by a Participating
Insurance Company to disregard Variable Contract owner voting
instructions, and that decision represents a minority position or would
preclude a majority vote, then the Participating Insurance Company may
be required, at the election of the Fund, to withdraw such
Participating Insurance Company's VA Account and VLI Account
investments in the Fund, and no charge or penalty will be imposed as a
result of such withdrawal. If a material irreconcilable conflict arises
because of a 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 Plan may be required,
at the election of the Fund, to withdraw its investment in the 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 will be a contractual obligation of
all Participants under their participation agreement with a Fund, and
these responsibilities will be carried out with a view only to the
interests of Variable Contract owners or, as applicable, Plan
participants.
    For purposes of this Condition 4, a majority of the disinterested
directors/trustees of the Board of each Fund will determine whether or
not any proposed action adequately remedies any material irreconcilable
conflict, but, in no event, will the Fund or its investment adviser be
required to establish a new funding vehicle for any Variable Contract
or Plan. No Participating Insurance Company will be required by this
Condition 4 to establish a new funding vehicle for any Variable
Contract if any offer to do so has been declined by vote of a majority
of the Contract owners materially and adversely affected by the
material irreconcilable conflict. Further, no Plan will be required by
this Condition 4 to establish a new funding vehicle for the Plan if:
(a) A majority of the Plan participants materially and adversely
affected by the irreconcilable material conflict vote to decline such
offer, or (b) pursuant to documents governing the Plan, the Plan
trustee makes such decision without a Plan participant vote.
    5. A Board's determination of the existence of a material
irreconcilable conflict and its implications will be made known in
writing promptly to all Participants.
    6. Participating Insurance Companies will provide pass-through
voting privileges to all Variable Contract owners whose Contracts are
issued through registered VLI Accounts or registered VA Accounts for as
long as required by the Act as interpreted by the Commission. However,
as to Variable Contracts issued through VA Accounts

or VLI Accounts not registered as investment companies under the Act,
pass-through voting privileges will be extended to owners of such
Contracts to the extent granted by the Participating Insurance Company.
Accordingly, such Participating Insurance Companies, where applicable,
will vote the shares of each Fund held in their VLI Accounts and VA
Accounts in a manner consistent with voting instructions timely
received from Variable Contract owners. Participating Insurance
Companies will be responsible for assuring that each of their VLI and
VA Accounts investing in a Fund calculates voting privileges in a
manner consistent with all other Participating Insurance Companies
investing in that Fund.
    The obligation to calculate voting privileges as provided in this
Application shall be a contractual obligation of all Participating
Insurance Companies under their participation agreement with the Fund.
Each Participating Insurance Company will vote shares of each Fund held
in its VLI or VA Accounts for which no timely voting instructions are
received, as well as shares attributed to it, in the same proportion as
those shares for which voting instructions are received. Each Plan will
vote as required by applicable law, governing Plan documents and as
provided in this application.
    7. As long as the Act requires pass-through voting privileges to be
provided to Variable Contract owners or the Commission interprets the
Act to require the same, a Fund investment adviser (or its affiliates)
will vote their shares of the Fund in the same proportion as all votes
cast on behalf of all Variable Contract owners having voting rights;
provided, however, that such an investment adviser (or affiliates)
shall vote its shares in such other manner as may be required by the
Commission or its staff.
    8. Each Fund will comply with all provisions of the Act requiring
voting by shareholders (which, for these purposes, shall be the persons
having a voting interest in its shares), and, in particular, the Fund
will either provide for annual meetings (except to the extent that the
Commission may interpret Section 16 of the Act not to require such
meetings) or comply with Section 16(c) of the Act (although each Fund
is not, or will not be, one of those trusts of the type described in
Section 16(c) of the Act), as well as with Section 16(a) of the Act
and, if and when applicable, Section 16(b) of the Act. Further, each
Fund will act in accordance with the Commission's interpretations of
the requirements of Section 16(a) with respect to periodic elections of
directors/trustees and with whatever rules the Commission may
promulgate thereto.
    9. A Fund will make its shares available to the VLI Accounts, VA
Accounts, and Plans at or about the time it accepts any seed capital
from its investment adviser (or affiliates) or from a general account
of a Participating Insurance Company.
    10. Each Fund has notified, or will notify, all Participants that
disclosure regarding potential risks of mixed and shared funding may be
appropriate in VLI Account and VA Account prospectuses or Plan
documents. Each Fund will disclose, in its prospectus that: (a) Shares
of the Fund may be offered to both VA Accounts and VLI Accounts and, if
applicable, to Plans, (b) due to differences in tax treatment and other
considerations, the interests of various Variable Contract owners
participating in the Fund and the interests of Plan participants
investing in the Fund, if applicable, may conflict, and (c) the Fund's
Board will monitor events in order to identify the existence of any
material irreconcilable conflicts and to determine what action, if any,
should be taken in response to any such conflicts.
    11. If and to the extent Rule 6e-2 and Rule 6e-3(T) under the Act
are amended, or Rule 6e-3 under the Act is adopted, to provide
exemptive relief from any provision of the 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 this Application, then each Fund and/or
Participating Insurance Companies, as appropriate, shall take such
steps as may be necessary to comply with Rules 6e-2 or 6e-3(T), as
amended, or Rule 6e-3, to the extent such rules are applicable.
    12. Each Participant, at least annually, shall submit to the Board
of each Fund such reports, materials or data as the Board reasonably
may request so that the directors/trustees of the Board may fully carry
out the obligations imposed upon the Board by the conditions contained
in this Application. Such reports, materials and data shall be
submitted more frequently if deemed appropriate by the Board of a Fund.
The obligations of the Participants to provide these reports, materials
and data to the Board, when it so reasonably requests, shall be a
contractual obligation of all Participants under their participation
agreement with the Fund.
    13. All reports of potential or existing conflicts received by a
Board, 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.
    14. Each Fund will not accept a purchase order from a Qualified
Plan if such purchase would make the Plan an owner of 10 percent or
more of the net assets of the Fund unless the Plan executes an
agreement with the Fund governing participation in the Fund that
includes the conditions set forth herein to the extent applicable. A
Plan will execute an application containing an acknowledgement of this
condition at the time of its initial purchase of shares.

Conclusion

    Applicants submit, for all the reasons explained above, that the
exemptions requested 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.
Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-20599 Filed 8-26-09; 8:45 am]

BILLING CODE 8010-01-P