ING Life Insurance and Annuity Company, et al., Notice of Application, 35265-35269 [E7-12405]

Download as PDF Federal Register / Vol. 72, No. 123 / Wednesday, June 27, 2007 / Notices Finding of No Significant Impact On the basis of the environmental assessment, the NRC concludes that the proposed action will not have a significant effect on the quality of the human environment. Accordingly, the NRC has determined not to prepare an environmental impact statement for the proposed action. For further details with respect to the proposed action, see the licensee’s letter dated June 13, 2006. Documents may be examined, and/or copied for a fee, at the NRC’s Public Document Room (PDR), located at One White Flint North, Public File Area O1 F21, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible electronically from the Agencywide Documents Access and Management System (ADAMS) Public Electronic Reading Room on the Internet at the NRC Web site, http:// www.nrc.gov/reading-rm/adams.html. Persons who do not have access to ADAMS or who encounter problems in accessing the documents located in ADAMS should contact the NRC PDR Reference staff by telephone at 1–800– 397–4209 or 301–415–4737, or send an e-mail to pdr@nrc.gov. Dated at Rockville, Maryland, this 21st day of June 2007. For the Nuclear Regulatory Commission. Siva P. Lingam, Project Manager, Plant Licensing Branch II– 1, Division of Operating Reactor Licensing, Office of Nuclear Reactor Regulation. [FR Doc. E7–12431 Filed 6–26–07; 8:45 am] BILLING CODE 7590–01–P POSTAL SERVICE BOARD OF GOVERNORS Sunshine Act Meeting; Notification of Items Added to Meeting Agenda DATE OF MEETING: STATUS: June 19, 2007. Closed. 72 FR 32338, June 12, 2007. ADDITIONS: 1. Postal Regulatory Commission Opinion and Recommended Decision in Docket No. MC2006–7, Stamped Stationery and Stamped Cards Classifications. 2. Postal Regulatory Commission Opinion and Recommended Decision in Docket No. MC2007–2, Repositionable Notes Minor Classification Change. 3. Filing with the Postal Regulatory Commission for Premium Forwarding Service. At its closed meeting on June 19, 2007, the Board of Governors of the jlentini on PROD1PC65 with NOTICES PREVIOUS ANNOUNCEMENT: VerDate Aug<31>2005 16:40 Jun 26, 2007 Jkt 211001 United States Postal Service voted unanimously to add these items to the agenda of its closed meeting and that no earlier announcement was possible. The General Counsel of the United States Postal Service certified that in her opinion discussion of this item could be properly closed to public observation. CONTACT PERSON FOR MORE INFORMATION: Wendy A. Hocking, Secretary of the Board, U.S. Postal Service, 475 L’Enfant Plaza, SW., Washington, DC 20260– 1000. Wendy A. Hocking, Secretary. [FR Doc. 07–3156 Filed 6–22–07; 4:56 pm] BILLING CODE 7710–12–M SECURITIES AND EXCHANGE COMMISSION [Release No. IC–27869; File No. 812–13361] ING Life Insurance and Annuity Company, et al., Notice of Application June 20, 2007. The Securities and Exchange Commission (‘‘Commission’’). ACTION: Notice of application for an order pursuant to Section 26(c) of the Investment Company Act of 1940, as amended (‘‘1940 Act’’ or ‘‘Act’’) approving certain substitutions of securities and for an order of exemption pursuant to Section 17(b) of the 1940 Act. AGENCY: ING Life Insurance and Annuity Company, ING USA Annuity and Life Insurance Company and ReliaStar Life Insurance Company of New York (each a ‘‘Company’’ and together, the ‘‘Companies’’), Variable Annuity Account B of ING Life Insurance and Annuity Company, Separate Account B of ING USA Annuity and Life Insurance Company, Separate Account EQ of ING USA Annuity and Life Insurance Company and ReliaStar Life Insurance Company of New York Separate Account NY–B (each, an ‘‘Account’’ and together, the ‘‘Accounts’’), and ING Investors Trust are collectively referred to herein as the ‘‘Applicants.’’ SUMMARY OF APPLICATION: The Applicants request an order, pursuant to Section 26(c) of the 1940 Act, permitting the substitution (‘‘Substitution’’) of shares of the ING Franklin Mutual Shares Portfolio—Service Class (the ‘‘Substitute Fund’’) for shares of the Franklin Templeton VIP Mutual Shares Securities Fund—Class 2 (the ‘‘Replaced Fund’’). The Applicants also hereby apply for an order of exemption APPLICANTS: PO 00000 Frm 00051 Fmt 4703 Sfmt 4703 35265 pursuant to Section 17(b) of the 1940 Act to permit in-kind redemptions and purchases in connection with the Substitution. FILING DATE: The Application was filed on January 31, 2007 and amended and restated on June 18, 2007. 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 July 13, 2007, and should be accompanied by proof of service on Applicants, in the form of an affidavit or, for lawyers, a certificate of service. Hearing requests should state the nature of the writer’s interest, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Secretary of the Commission. ADDRESSES: Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090. Applicants, J. Neil McMurdie, Counsel, ING Americas U.S. Legal Services, 151 Farmington Avenue, TS31, Hartford, CT 06156–8975. FOR FURTHER INFORMATION CONTACT: Alison White, Senior Counsel, or Joyce M. Pickholz, Branch Chief, Office of Insurance Products, Division of Investment Management, at (202) 551– 6795. 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, 100 F Street, NE., Room 1580, Washington, DC 20549. Applicants’ Representations 1. Each of the Companies is an indirect wholly owned subsidiary of ING Groep, N.V. (‘‘ING’’). ING is a global financial services holding company based in The Netherlands which is active in the field of insurance, banking and asset management. As a result, each Company likely would be deemed to be an affiliate of the others. 2. ING Life Insurance and Annuity Company (‘‘ING Life’’) is a stock life insurance company organized under the laws of the State of Connecticut in 1976 as Forward Life Insurance Company. Through a December 31, 1976 merger, ING Life’s operations include the business of Aetna Variable Annuity Life Insurance Company (formerly known as Participating Annuity Life Insurance E:\FR\FM\27JNN1.SGM 27JNN1 35266 Federal Register / Vol. 72, No. 123 / Wednesday, June 27, 2007 / Notices Company). Through a December 31, 2005 merger, ING Life’s operations include the business of ING Insurance Company of America (‘‘ING America’’). Prior to May 1, 2002, ING Life was known as Aetna Life Insurance and Annuity Company. ING Life is principally engaged in the business of issuing life insurance and annuities. 3. ING USA Annuity and Life Insurance Company (‘‘ING USA’’) is an Iowa stock life insurance company which was originally organized in 1973 under the insurance laws of Minnesota. Through January 1, 2004 mergers, ING USA’s operations include the business of Equitable Life Insurance Company of Iowa, United Life and Annuity Insurance Company, and USG Annuity and Life Company. Prior to January 1, 2004, ING USA was known as Golden American Life Insurance Company. ING USA is principally engaged in the business of issuing life insurance and annuities. 4. ReliaStar Life Insurance Company of New York (‘‘ReliaStar NY’’) is a stock life insurance company which was incorporated under the laws of the State of New York in 1917. Through an April 1, 2002 merger, ReliaStar NY’s operations include the business of First Golden American Life Insurance Company of New York. ReliaStar NY is principally engaged in the business of issuing life insurance and annuities. 5. Each of the Accounts is a segregated asset account of the Company that is the depositor of such Account, and is registered under the 1940 Act as a unit investment trust. Each of the respective Accounts is used by the Company of which it is a part to support the Contracts that it issues. 6. Variable Annuity Account B of ING Life Insurance and Annuity Company (‘‘ING Life B’’) (File No. 811–2512) was established by Aetna in 1976 as a continuation of the separate account established in 1974 under the laws of the State of Arkansas by Aetna Variable Annuity Life Insurance Company to support certain Contracts. 7. Separate Account B of ING USA Annuity and Life Insurance Company (File No. 811–5626) was established by Golden in 1988 under the laws of the State of Minnesota. 8. Separate Account EQ of ING USA Annuity and Life Insurance Company, (formerly Equitable Life Insurance Company of Iowa Separate Account A) (File No. 811–8524), was established by Equitable Life in 1988 under the laws of the State of Iowa. 9. ReliaStar Life Insurance Company of New York Separate Account NY–B, formerly Separate Account NY–B of First Golden American Life Insurance Company of New York (File No. 811– 7935), was established by First Golden in 1996 under the laws of the State of New York. 10. The ING Franklin Mutual Shares Portfolio, a series of ING Investors Trust, will be used as the Substitute Fund. 11. ING Investors Trust, formerly known as the GCG Trust, was organized as a Massachusetts business trust on August 3, 1988. ING Investors Trust is registered under the 1940 Act as an open-end management investment company (File No. 811–5629). 12. For the series included in this substitution Application, overall management services will be provided by Directed Services LLC (‘‘DSL’’). DSL is an investment adviser registered under the Advisers Act, and a brokerdealer registered under the Exchange Act. Under the terms of an investment advisory agreement between ING Investors Trust and DSL (the ‘‘Trust Management Agreement’’), which agreement first became effective on October 24, 1997, DSL manages the business and affairs of each of the respective series of the ING Investors Trust, subject to the control and oversight of the ING Investors Trust Board of Trustees (the ‘‘Board’’). Under the Trust Management Agreement, DSL is authorized to exercise full investment discretion and make all determinations with respect to the investment of the assets of the respective series, but may, Management fees (%) jlentini on PROD1PC65 with NOTICES Substitute Fund: ING Franklin Mutual Shares Portfolio—Service Class 1 .................... Replaced Fund: Franklin Templeton VIP Mutual Shares Securities Fund—Class 2 Distribution (12b–1) fees (%) Other expenses (%) at its own cost and expense, retain portfolio managers for the purpose of making investment decisions and research information available to ING Investors Trust. 13. DSL delegates to subadvisers the responsibility for day-to-day management of the investments of each respective portfolio, subject to DSL’s oversight. DSL also recommends the appointment of additional or replacement subadvisers to the Board. ING Investors Trust and DSL have received exemptive relief from the Commission that permits ING Investors Trust and DSL to add or terminate a subadviser without shareholder approval. 14. The Franklin Templeton VIP Mutual Shares Securities Fund, a series of the Franklin Templeton Variable Insurance Products Trust (File No. 811– 05583), will be replaced pursuant to any order issued pursuant to this Application. 15. The Contracts are flexible premium variable annuity contracts. The Contracts provide for the accumulation of values on a variable basis, fixed basis, or both, during the accumulation period, and provide settlement or annuity payment options on a variable or fixed basis. Under each of the prospectuses for the Contracts, each Company reserves the right to substitute shares of one fund or portfolio for shares of another. A Contract owner may transfer all or any part of the Contract value from one subaccount to any other subaccount or a fixed account, if available, as long as the Contract remains in effect and at any time up to 30 days before the due date of the first annuity payment for variable annuity Contracts. For many of the Contracts, the Company issuing the Contract reserves the right to limit the number of transfers during a specified period. 16. The comparative fees and expenses for each fund in this proposed substitution are as follows: Total annual expenses (%) Expense waivers (%) Net annual expenses (%) 0.78 ........................ 2 0.25 1.03 ........................ 1.03 0.60 0.25 0.21 1.06 ........................ 1.06 1 This portfolio is subject to a Unified Fee arrangement. 2 The ‘‘Other Expenses’’ of this portfolio includes a Shareholder Services Fee of 0.25%. This Shareholder Services Fee is permanently capped at 0.25%. VerDate Aug<31>2005 15:50 Jun 26, 2007 Jkt 211001 PO 00000 Frm 00052 Fmt 4703 Sfmt 4703 E:\FR\FM\27JNN1.SGM 27JNN1 35267 Federal Register / Vol. 72, No. 123 / Wednesday, June 27, 2007 / Notices 17. The ING Franklin Mutual Shares Portfolio is patterned after the Franklin Templeton VIP Mutual Shares Securities Fund, and these two portfolios have the same investment objectives and policies. The investment objective of both portfolios is to seek capital appreciation. Additionally, the investment adviser for Franklin Templeton VIP Mutual Shares Securities Fund will be the sub-adviser to the ING Franklin Mutual Shares Expense ratio (%) Substitute Fund: ING Franklin Mutual Shares Portfolio—Service Class 3 .................... Replaced Fund: Franklin Templeton VIP Mutual Shares Securities Fund—Class 2 jlentini on PROD1PC65 with NOTICES 3 This 1 Year (%) 3 Years (%) Portfolio and will manage the two funds in the same way. 18. The expense ratios and total return figures for each fund in this proposed substitution as of March 31, 2007, are as follows: 5 Years (%) 10 Years (%) Since inception 1.03 1.06 14.58 13.72 10.38 10.46 portfolio commenced operations on April 27, 2007. Therefore, annual performance information is not yet available. Implementation of the Substitutions 19. Applicants will effect the Substitution as soon as practicable following the issuance of the requested order. As of the Effective Date of the Substitution, shares of the Replaced Fund will be redeemed for cash or inkind. The Companies, on behalf of the Replaced Fund subaccount of each relevant Account, will simultaneously place a redemption request with the Replaced Fund and a purchase order with the Substitute Fund so that the purchase of Substitute Fund shares will be for the exact amount of the redemption proceeds. Thus, Contract values will remain fully invested at all times. The proceeds of such redemptions will then be used to purchase the appropriate number of shares of the Substitute Fund. 20. The Substitution will take place at relative net asset value (in accordance with Rule 22c–1 under the 1940 Act) with no change in the amount of any affected Contract owner’s contract value, cash value, accumulation value, account value or death benefit, or in the dollar value of his or her investment in the applicable Account. Any in-kind redemption of shares of the Replaced Fund or in-kind purchase of shares of the Substitute Fund will, except as noted below, take place in substantial compliance with the conditions of Rule 17a–7 under the 1940 Act. No brokerage commissions, fees or other remuneration will be paid by either the Replaced Fund or the Substitute Fund or by affected Contract owners in connection with the Substitution. The transactions comprising the Substitution will be consistent with the policies of each investment company involved and with the general purposes of the 1940 Act. 21. Affected Contract owners will not incur any fees or charges as a result of the Substitution nor will their rights or the Companies’ obligations under the VerDate Aug<31>2005 16:42 Jun 26, 2007 Jkt 211001 Contracts be altered in any way. The Companies or their affiliates will pay all expenses and transaction costs of the Substitution, including legal and accounting expenses, any applicable brokerage expenses, and other fees and expenses. In addition, the Substitution will not impose any tax liability on affected Contract owners. The Substitution will not cause the Contract fees and charges currently being paid by affected Contract owners to be greater after the Substitution than before the Substitution. Also, as described more fully below, after notification of the Substitution and for 30 days after the Substitution, affected Contract owners may reallocate to any other investment options available under their Contract the subaccount value of the Replaced Fund without incurring any administrative costs or allocation (transfer) charges. 22. Shortly after the date of the Application, all affected Contract owners were notified of the Substitution by means of supplements to the Contract prospectuses. Among other information regarding the Substitution, the supplements informed affected Contract owners that beginning on the date of the first supplement the Companies would not exercise any rights reserved by them under the Contracts to impose restrictions or fees on transfers from the Replaced Fund (other than restrictions related to frequent or disruptive transfers) until at least 30 days after the Effective Date of the Substitution. Following the date the order requested by the Application is issued, but before the Effective Date, affected Contract owners will receive a second supplement to the Contract prospectus setting forth the Effective Date and advising affected Contract owners of their right, if they so choose, at any time prior to the Effective Date, to reallocate or withdraw accumulated value in the Replaced Fund subaccounts PO 00000 Frm 00053 Fmt 4703 Sfmt 4703 under their Contracts or otherwise terminate their interest therein in accordance with the terms and conditions of their Contracts. If affected Contract Owners reallocate account value prior to the Effective Date or within 30 days after the Effective Date, there will be no charge for the reallocation of accumulated value from the Replaced Fund subaccount and the reallocation will not count as a transfer when imposing any applicable restriction or limit under the Contract on transfers. The Companies will not exercise any right they may have under the Contracts to impose additional restrictions or fees on transfers from the Replaced Fund under the Contracts (other than restrictions related to frequent or disruptive transfers) for a period of at least 30 days following the Effective Date of the Substitution. Additionally, all current Contract Owners will be sent prospectuses of the Substitute Fund before the Effective Date. 23. Within five (5) business days after the Effective Date, affected Contract Owners will be sent a written confirmation (‘‘Post-Substitution Confirmation’’) indicating that shares of the Replaced Fund have been redeemed and that the shares of Substitute Fund have been substituted. The PostSubstitution Confirmation will show how the allocation of the Contract Owner’s account value before and immediately following the Substitution has changed as a result of the Substitution and detail the transactions effected on behalf of the respective affected Contract Owner because of the Substitution. Applicant’s Legal Analysis 1. Applicants represent that each of the prospectuses for the Contracts expressly discloses the reservation of the Companies’ right, subject to compliance with applicable law, to E:\FR\FM\27JNN1.SGM 27JNN1 jlentini on PROD1PC65 with NOTICES 35268 Federal Register / Vol. 72, No. 123 / Wednesday, June 27, 2007 / Notices substitute shares of another open-end management investment company for shares of an open-end management investment company held by a subaccount of an Account. 2. Applicants state that the Companies reserved this right of substitution both to protect themselves and their Contract owners in situations where either might be harmed or disadvantaged by circumstances surrounding the issuer of the shares held by one or more of its separate accounts, and to afford the opportunity to replace such shares where to do so could benefit the Contract owners and Companies. 3. Applicants maintain that Contract Owners will be better served by the proposed Substitution. Applicants anticipate that the replacement of the Replaced Fund will result in a Contract that is administered and managed more efficiently, and one that is more competitive with other variable products in both wholesale and retail markets. As noted above, the Substitute Fund will be patterned after the Replaced Fund. The Substitute Fund will be managed according to the same investment objective and policies as the Replaced Fund and the investment adviser for the Replaced Fund will serve as the sub-adviser to the Substitute Fund. 4. In addition to the foregoing, Applicants generally submit that the proposed Substitution meets the standards that the Commission and its staff have applied to similar substitutions that have been approved in the past. 5. Applicants anticipate that Contract owners will be at least as well off with the proposed array of subaccounts to be offered after the proposed substitutions as they have been with the array of subaccounts offered before the substitutions. The proposed Substitution retains for Contract owners the investment flexibility which is a central feature of the Contracts. If the proposed Substitution is carried out, all Contract owners will be permitted to allocate purchase payments and transfer accumulated values and contract values between and among the remaining subaccounts as they could before the proposed Substitution. 6. Applicants maintain that the terms of the Substitution, including the consideration to be paid and received by the Replaced Fund or the Substitute Fund, are reasonable, fair and do not involve overreaching principally because the transactions do not cause owners’ interests under a Contract to be diluted and because the transactions will conform with the principal VerDate Aug<31>2005 15:50 Jun 26, 2007 Jkt 211001 conditions enumerated in Rule 17a–7 of the 1940 Act. The proposed transactions will take place at relative net asset value with no change in the amount of any Contract owner’s Contract or cash value, accumulation value or death benefit or in the dollar value of his or her investment in any of the Accounts. 7. Applicants submit that the Substitution by the Companies is consistent with the policies of the Substitute Fund and the Replaced Fund, as recited in the current registration statements and reports filed by each under the 1940 Act. Applicants also submit that the Substitution is consistent with the general purposes of the 1940 Act. 8. Applicants submit that, to the extent that the Substitution is deemed to involve principal transactions between affiliates, the procedures and terms and descriptions described in the Application demonstrate that neither the Replaced Fund, the Substitute Fund, the Accounts nor any other Applicant will be participating in the Substitution on a basis less advantageous than that of any other participant. Even though the Applicants may not rely on Rule 17a–7, Applicants believe that the Rule’s conditions outline the type of safeguards that result in transactions that are fair and reasonable to registered investment company participants and preclude overreaching in connection with an investment company by its affiliated persons. 9. The boards of trustees or directors, as applicable, of the Replaced Fund and the Substitute Fund have adopted procedures, as required by paragraph (e)(1) of Rule 17a–7, pursuant to which the portfolios or funds of each may purchase and sell securities to and from their affiliates. The Companies and the investment advisers will carry out the Substitution in conformity with the principal conditions of Rule 17a–7 and the Replaced Fund’s and the Substitute Fund’s procedures thereunder. Also, no brokerage commission, fee, or other remuneration will be paid to any party in connection with the proposed transaction. In addition, the applicable ING Investors Trust board will subsequently review the Substitution and make the determinations required by paragraph (e)(3) of Rule 17a–7. 10. Except as noted below, applicants state that the Substitution will take place in accordance with the requirements enumerated in Rule 17a– 7 under the 1940 Act and with the approval of the boards of ING Investors Trust, except that the Substitution may be effected in cash or in-kind. Applicants further submit that the Substitution is consistent with the PO 00000 Frm 00054 Fmt 4703 Sfmt 4703 investment policy of the Replaced Fund and the Substitute Fund, as recited in the current prospectuses relating to each. 11. With regard to the in-kind transfer, the investment adviser of the Substitute Fund and the investment adviser to the Replaced Fund intend to value securities selected for transfer between the two funds in a manner that is consistent with the current methodology used to calculate the daily net asset value of the Replaced Fund. Where the Replaced Fund’s investment adviser employs certain third party, independent pricing services to value securities held by the Replaced Fund (‘‘Vendor Pricing’’), the investment adviser of the Substitute Fund and Replaced Fund’s investment adviser will employ Vendor Pricing to value securities held by the Replaced Fund that are selected for transfer to the Substitute Fund. Generally, the redemption of securities from the Replaced Fund and subsequent transfer to the Substitute Fund will be done on a pro-rata basis. In the event that the Replaced Fund holds illiquid or restricted securities or assets that are not otherwise readily distributable or if a pro-rata transfer of securities would result in the parties holding odd lots, the investment advisers may agree to have the Replaced Fund transfer to the Substitute Fund an equivalent amount of cash instead of securities. 12. After the assets have been contributed to the Substitute Fund, responsibility for valuation of the securities held by the Substitute Fund will shift to the valuation committee of the Substitute Fund’s board of trustees. At the end of the first trading following the transfer, the applicable valuation agent and custodian for the Substitute Fund will value the securities held by the Substitute Fund. The foregoing notwithstanding, the Substitute Fund’s board of trustees will retain ultimate responsibility for valuation decisions. Applicant’s Conditions 1. The Substitute Fund has an investment objective and investment policies that are the same as the investment objective and policies of the Replaced Fund, so that the objective of the affected Contract Owners can continue to be met. 2. For two years following the implementation of the Substitutions described herein, the net annual expenses of the Substitute Fund will not exceed the net annual expenses of the Replaced Fund immediately preceding the Substitutions. To achieve this limitation, Directed Services LLC will waive fees or reimburse the Substitute E:\FR\FM\27JNN1.SGM 27JNN1 jlentini on PROD1PC65 with NOTICES Federal Register / Vol. 72, No. 123 / Wednesday, June 27, 2007 / Notices Fund in certain amounts to maintain expenses at or below the limit. Any adjustments or reimbursements will be made at least on a quarterly basis. In addition, the Companies will not increase the Contract fees and charges, including asset based charges such as mortality and expense risk charges deducted from the Subaccounts, that would otherwise be assessed under the terms of the Contracts for a period of at least two years following the Substitutions. 3. The Shareholder Services Fee of the Class S shares of the ING Franklin Mutual Shares Portfolio will be permanently capped at 0.25%. 4. Affected Contract Owners may reallocate amounts from the Replaced Fund without incurring a reallocation charge or limiting their number of future reallocations, or withdraw amounts under any affected Contract or otherwise terminate their interest therein at any time prior to the Effective Date and for a period of at least 30 days following the Effective Date in accordance with the terms and conditions of such Contract. Any such reallocation will not count as a transfer when imposing any applicable restriction or limit under the Contract on transfers. 5. The Substitutions will be effected at the net asset value of the respective shares in conformity with Section 22(c) of the 1940 Act and Rule 22c–1 thereunder, without the imposition of any transfer or similar charge by Applicants. 6. The Substitution will take place at relative net asset value without change in the amount or value of any Contract held by affected Contract Owners. Affected Contract Owners will not incur any fees or charges as a result of the Substitution, nor will their rights or the obligations of the Companies under such Contracts be altered in any way. 7. The Companies or their affiliates will pay all expenses and transaction costs of the Substitutions, including legal and accounting expenses, any applicable brokerage expenses, and other fees and expenses. In addition, the Substitutions will not impose any tax liability on affected Contract owners. 8. The Substitution will be effected so that investment of securities will be consistent with the investment objectives, policies and diversification requirements of the Substitute Fund. No brokerage commissions, fees or other remuneration will be paid by the Replaced Fund or the Substitute Fund or affected Contract Owners in connection with the Substitution. 9. The Substitution will not alter in any way the annuity, life or tax benefits VerDate Aug<31>2005 15:50 Jun 26, 2007 Jkt 211001 afforded under the Contracts held by any affected Contract Owner. 10. The Companies will send to their affected Contract Owners within five (5) business days of the Substitution a written Post-Substitution Confirmation which will include the before and after account values (which will not have changed as a result of the Substitution) and detail the transactions effected on behalf of the respective affected Contract Owner with regard to the Substitution. With the Post-Substitution Confirmations the Companies will remind affected Contract Owners that they may reallocate amounts from any of the Replaced Funds without incurring a reallocation charge or limiting their number of future reallocations for a period of at least 30 days following the Effective Date in accordance with the terms and conditions of their Contract. 11. The Commission shall have issued an order: (a) Approving the Substitutions under Section 26(c) of the 1940 Act; and (b) exempting the in-kind redemptions from the provisions of Section 17(a) of the 1940 Act as necessary to carry out the transactions described in this Application. 12. A registration statement for the Substitute Fund is effective, and the investment objectives and policies and fees and expenses for the Substitute Fund as described herein have been implemented. 13. Each affected Contract Owner will have been sent a copy of: (a) A supplement to the Contract prospectus informing shareholders of this Application; (b) a prospectus for the appropriate Substitute Fund; and (c) a second supplement to the Contract prospectus setting forth the Effective Date and advising affected Contract Owners of their right to reconsider the Substitutions and, if they so choose, any time prior to the Effective Date and for 30 days thereafter, to reallocate or withdraw amounts under their affected Contract or otherwise terminate their interest therein in accordance with the terms and conditions of their Contract. 14. The Companies shall have satisfied themselves, that: (a) The Contracts allow the substitution of investment company shares in the manner contemplated by the Substitutions and related transactions described herein; (b) the transactions can be consummated as described in this Application under applicable insurance laws; and (c) any regulatory requirements in each jurisdiction where the Contracts are qualified for sales have been complied with to the extent necessary to complete the transaction. PO 00000 Frm 00055 Fmt 4703 Sfmt 4703 35269 15. Under the manager-of-managers relief granted to the ING Investors Trust, a vote of the shareholders is not necessary to change a sub-adviser, except for changes involving an affiliated sub-adviser. Notwithstanding, the parties agree that before the Substitute Fund relies on any Commission order or rule that would permit the Substitute Fund to enter into contracts with subadvisers without obtaining shareholder approval, the Substitute Fund’s reliance on the order or rule will be approved, following the substitution proposed herein, by a majority of the Substitute Fund’s outstanding voting securities. Conclusion For the reasons and upon the facts set forth above, Applicants submit that the requested order meets the standards set forth in Section 26(c). Applicants request an order of the Commission, pursuant to Section 26(c) of the Act, approving the Substitutions. For the Commission, by the Division of Investment Management, pursuant to delegated authority. Florence E. Harmon, Deputy Secretary. [FR Doc. E7–12405 Filed 6–26–07; 8:45 am] BILLING CODE 8010–01–P SECURITIES AND EXCHANGE COMMISSION Sunshine Act Meeting Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Pub. L. 94–409, that the Securities and Exchange Commission will hold the following meeting during the week of June 25, 2007: A Closed Meeting will be held on Thursday, June 28, 2007 at 2 p.m. Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the Closed Meeting. Certain staff members who have an interest in the matters may also be present. The General Counsel of the Commission, or his designee, has certified that, in his opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(3), (5), (7), (9)(B), and (10) and 17 CFR 200.402(a)(3), (5), (7), 9(ii) and (10), permit consideration of the scheduled matters at the Closed Meeting. Commissioner Atkins, as duty officer, voted to consider the items listed for the closed meeting in closed session. The subject matter of the Closed Meeting scheduled for Thursday, June 28, 2007 will be: E:\FR\FM\27JNN1.SGM 27JNN1

Agencies

[Federal Register Volume 72, Number 123 (Wednesday, June 27, 2007)]
[Notices]
[Pages 35265-35269]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-12405]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. IC-27869; File No. 812-13361]


ING Life Insurance and Annuity Company, et al., Notice of 
Application

June 20, 2007.
AGENCY: The Securities and Exchange Commission (``Commission'').

ACTION: Notice of application for an order pursuant to Section 26(c) of 
the Investment Company Act of 1940, as amended (``1940 Act'' or 
``Act'') approving certain substitutions of securities and for an order 
of exemption pursuant to Section 17(b) of the 1940 Act.

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Applicants: ING Life Insurance and Annuity Company, ING USA Annuity and 
Life Insurance Company and ReliaStar Life Insurance Company of New York 
(each a ``Company'' and together, the ``Companies''), Variable Annuity 
Account B of ING Life Insurance and Annuity Company, Separate Account B 
of ING USA Annuity and Life Insurance Company, Separate Account EQ of 
ING USA Annuity and Life Insurance Company and ReliaStar Life Insurance 
Company of New York Separate Account NY-B (each, an ``Account'' and 
together, the ``Accounts''), and ING Investors Trust are collectively 
referred to herein as the ``Applicants.''

Summary of Application: The Applicants request an order, pursuant to 
Section 26(c) of the 1940 Act, permitting the substitution 
(``Substitution'') of shares of the ING Franklin Mutual Shares 
Portfolio--Service Class (the ``Substitute Fund'') for shares of the 
Franklin Templeton VIP Mutual Shares Securities Fund--Class 2 (the 
``Replaced Fund''). The Applicants also hereby apply for an order of 
exemption pursuant to Section 17(b) of the 1940 Act to permit in-kind 
redemptions and purchases in connection with the Substitution.

Filing Date: The Application was filed on January 31, 2007 and amended 
and restated on June 18, 2007.

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 July 13, 2007, and should be accompanied by 
proof of service on Applicants, in the form of an affidavit or, for 
lawyers, a certificate of service. Hearing requests should state the 
nature of the writer's interest, the reason for the request, and the 
issues contested. Persons who wish to be notified of a hearing may 
request notification by writing to the Secretary of the Commission.

ADDRESSES: Secretary, Securities and Exchange Commission, 100 F Street, 
NE., Washington, DC 20549-1090. Applicants, J. Neil McMurdie, Counsel, 
ING Americas U.S. Legal Services, 151 Farmington Avenue, TS31, 
Hartford, CT 06156-8975.

FOR FURTHER INFORMATION CONTACT: Alison White, Senior Counsel, or Joyce 
M. Pickholz, Branch Chief, Office of Insurance Products, Division of 
Investment Management, at (202) 551-6795.

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, 100 F Street, NE., Room 
1580, Washington, DC 20549.

Applicants' Representations

    1. Each of the Companies is an indirect wholly owned subsidiary of 
ING Groep, N.V. (``ING''). ING is a global financial services holding 
company based in The Netherlands which is active in the field of 
insurance, banking and asset management. As a result, each Company 
likely would be deemed to be an affiliate of the others.
    2. ING Life Insurance and Annuity Company (``ING Life'') is a stock 
life insurance company organized under the laws of the State of 
Connecticut in 1976 as Forward Life Insurance Company. Through a 
December 31, 1976 merger, ING Life's operations include the business of 
Aetna Variable Annuity Life Insurance Company (formerly known as 
Participating Annuity Life Insurance

[[Page 35266]]

Company). Through a December 31, 2005 merger, ING Life's operations 
include the business of ING Insurance Company of America (``ING 
America''). Prior to May 1, 2002, ING Life was known as Aetna Life 
Insurance and Annuity Company. ING Life is principally engaged in the 
business of issuing life insurance and annuities.
    3. ING USA Annuity and Life Insurance Company (``ING USA'') is an 
Iowa stock life insurance company which was originally organized in 
1973 under the insurance laws of Minnesota. Through January 1, 2004 
mergers, ING USA's operations include the business of Equitable Life 
Insurance Company of Iowa, United Life and Annuity Insurance Company, 
and USG Annuity and Life Company. Prior to January 1, 2004, ING USA was 
known as Golden American Life Insurance Company. ING USA is principally 
engaged in the business of issuing life insurance and annuities.
    4. ReliaStar Life Insurance Company of New York (``ReliaStar NY'') 
is a stock life insurance company which was incorporated under the laws 
of the State of New York in 1917. Through an April 1, 2002 merger, 
ReliaStar NY's operations include the business of First Golden American 
Life Insurance Company of New York. ReliaStar NY is principally engaged 
in the business of issuing life insurance and annuities.
    5. Each of the Accounts is a segregated asset account of the 
Company that is the depositor of such Account, and is registered under 
the 1940 Act as a unit investment trust. Each of the respective 
Accounts is used by the Company of which it is a part to support the 
Contracts that it issues.
    6. Variable Annuity Account B of ING Life Insurance and Annuity 
Company (``ING Life B'') (File No. 811-2512) was established by Aetna 
in 1976 as a continuation of the separate account established in 1974 
under the laws of the State of Arkansas by Aetna Variable Annuity Life 
Insurance Company to support certain Contracts.
    7. Separate Account B of ING USA Annuity and Life Insurance Company 
(File No. 811-5626) was established by Golden in 1988 under the laws of 
the State of Minnesota.
    8. Separate Account EQ of ING USA Annuity and Life Insurance 
Company, (formerly Equitable Life Insurance Company of Iowa Separate 
Account A) (File No. 811-8524), was established by Equitable Life in 
1988 under the laws of the State of Iowa.
    9. ReliaStar Life Insurance Company of New York Separate Account 
NY-B, formerly Separate Account NY-B of First Golden American Life 
Insurance Company of New York (File No. 811-7935), was established by 
First Golden in 1996 under the laws of the State of New York.
    10. The ING Franklin Mutual Shares Portfolio, a series of ING 
Investors Trust, will be used as the Substitute Fund.
    11. ING Investors Trust, formerly known as the GCG Trust, was 
organized as a Massachusetts business trust on August 3, 1988. ING 
Investors Trust is registered under the 1940 Act as an open-end 
management investment company (File No. 811-5629).
    12. For the series included in this substitution Application, 
overall management services will be provided by Directed Services LLC 
(``DSL''). DSL is an investment adviser registered under the Advisers 
Act, and a broker-dealer registered under the Exchange Act. Under the 
terms of an investment advisory agreement between ING Investors Trust 
and DSL (the ``Trust Management Agreement''), which agreement first 
became effective on October 24, 1997, DSL manages the business and 
affairs of each of the respective series of the ING Investors Trust, 
subject to the control and oversight of the ING Investors Trust Board 
of Trustees (the ``Board''). Under the Trust Management Agreement, DSL 
is authorized to exercise full investment discretion and make all 
determinations with respect to the investment of the assets of the 
respective series, but may, at its own cost and expense, retain 
portfolio managers for the purpose of making investment decisions and 
research information available to ING Investors Trust.
    13. DSL delegates to subadvisers the responsibility for day-to-day 
management of the investments of each respective portfolio, subject to 
DSL's oversight. DSL also recommends the appointment of additional or 
replacement subadvisers to the Board. ING Investors Trust and DSL have 
received exemptive relief from the Commission that permits ING 
Investors Trust and DSL to add or terminate a subadviser without 
shareholder approval.
    14. The Franklin Templeton VIP Mutual Shares Securities Fund, a 
series of the Franklin Templeton Variable Insurance Products Trust 
(File No. 811-05583), will be replaced pursuant to any order issued 
pursuant to this Application.
    15. The Contracts are flexible premium variable annuity contracts. 
The Contracts provide for the accumulation of values on a variable 
basis, fixed basis, or both, during the accumulation period, and 
provide settlement or annuity payment options on a variable or fixed 
basis. Under each of the prospectuses for the Contracts, each Company 
reserves the right to substitute shares of one fund or portfolio for 
shares of another.
    A Contract owner may transfer all or any part of the Contract value 
from one subaccount to any other subaccount or a fixed account, if 
available, as long as the Contract remains in effect and at any time up 
to 30 days before the due date of the first annuity payment for 
variable annuity Contracts. For many of the Contracts, the Company 
issuing the Contract reserves the right to limit the number of 
transfers during a specified period.
    16. The comparative fees and expenses for each fund in this 
proposed substitution are as follows:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                           Distribution
                                                            Management     (12b-1) fees   Other expenses   Total annual       Expense       Net annual
                                                             fees (%)           (%)             (%)        expenses (%)     waivers (%)    expenses (%)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Substitute Fund:
    ING Franklin Mutual Shares Portfolio--Service Class             0.78  ..............        \2\ 0.25            1.03  ..............            1.03
     \1\................................................
Replaced Fund:
    Franklin Templeton VIP Mutual Shares Securities                 0.60            0.25            0.21            1.06  ..............           1.06
     Fund--Class 2......................................
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ This portfolio is subject to a Unified Fee arrangement.
\2\ The ``Other Expenses'' of this portfolio includes a Shareholder Services Fee of 0.25%. This Shareholder Services Fee is permanently capped at 0.25%.


[[Page 35267]]

    17. The ING Franklin Mutual Shares Portfolio is patterned after the 
Franklin Templeton VIP Mutual Shares Securities Fund, and these two 
portfolios have the same investment objectives and policies. The 
investment objective of both portfolios is to seek capital 
appreciation. Additionally, the investment adviser for Franklin 
Templeton VIP Mutual Shares Securities Fund will be the sub-adviser to 
the ING Franklin Mutual Shares Portfolio and will manage the two funds 
in the same way.
    18. The expense ratios and total return figures for each fund in 
this proposed substitution as of March 31, 2007, are as follows:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                           Expense ratio                                                                       Since
                                                                (%)         1 Year (%)      3 Years (%)     5 Years (%)    10 Years (%)      inception
--------------------------------------------------------------------------------------------------------------------------------------------------------
Substitute Fund:
    ING Franklin Mutual Shares Portfolio--Service Class             1.03
     \3\................................................
Replaced Fund:
    Franklin Templeton VIP Mutual Shares Securities                 1.06           14.58           13.72           10.38           10.46
     Fund--Class 2......................................
--------------------------------------------------------------------------------------------------------------------------------------------------------
\3\ This portfolio commenced operations on April 27, 2007. Therefore, annual performance information is not yet available.

Implementation of the Substitutions

    19. Applicants will effect the Substitution as soon as practicable 
following the issuance of the requested order. As of the Effective Date 
of the Substitution, shares of the Replaced Fund will be redeemed for 
cash or in-kind. The Companies, on behalf of the Replaced Fund 
subaccount of each relevant Account, will simultaneously place a 
redemption request with the Replaced Fund and a purchase order with the 
Substitute Fund so that the purchase of Substitute Fund shares will be 
for the exact amount of the redemption proceeds. Thus, Contract values 
will remain fully invested at all times. The proceeds of such 
redemptions will then be used to purchase the appropriate number of 
shares of the Substitute Fund.
    20. The Substitution will take place at relative net asset value 
(in accordance with Rule 22c-1 under the 1940 Act) with no change in 
the amount of any affected Contract owner's contract value, cash value, 
accumulation value, account value or death benefit, or in the dollar 
value of his or her investment in the applicable Account. Any in-kind 
redemption of shares of the Replaced Fund or in-kind purchase of shares 
of the Substitute Fund will, except as noted below, take place in 
substantial compliance with the conditions of Rule 17a-7 under the 1940 
Act. No brokerage commissions, fees or other remuneration will be paid 
by either the Replaced Fund or the Substitute Fund or by affected 
Contract owners in connection with the Substitution. The transactions 
comprising the Substitution will be consistent with the policies of 
each investment company involved and with the general purposes of the 
1940 Act.
    21. Affected Contract owners will not incur any fees or charges as 
a result of the Substitution nor will their rights or the Companies' 
obligations under the Contracts be altered in any way. The Companies or 
their affiliates will pay all expenses and transaction costs of the 
Substitution, including legal and accounting expenses, any applicable 
brokerage expenses, and other fees and expenses. In addition, the 
Substitution will not impose any tax liability on affected Contract 
owners. The Substitution will not cause the Contract fees and charges 
currently being paid by affected Contract owners to be greater after 
the Substitution than before the Substitution. Also, as described more 
fully below, after notification of the Substitution and for 30 days 
after the Substitution, affected Contract owners may reallocate to any 
other investment options available under their Contract the subaccount 
value of the Replaced Fund without incurring any administrative costs 
or allocation (transfer) charges.
    22. Shortly after the date of the Application, all affected 
Contract owners were notified of the Substitution by means of 
supplements to the Contract prospectuses. Among other information 
regarding the Substitution, the supplements informed affected Contract 
owners that beginning on the date of the first supplement the Companies 
would not exercise any rights reserved by them under the Contracts to 
impose restrictions or fees on transfers from the Replaced Fund (other 
than restrictions related to frequent or disruptive transfers) until at 
least 30 days after the Effective Date of the Substitution. Following 
the date the order requested by the Application is issued, but before 
the Effective Date, affected Contract owners will receive a second 
supplement to the Contract prospectus setting forth the Effective Date 
and advising affected Contract owners of their right, if they so 
choose, at any time prior to the Effective Date, to reallocate or 
withdraw accumulated value in the Replaced Fund subaccounts under their 
Contracts or otherwise terminate their interest therein in accordance 
with the terms and conditions of their Contracts. If affected Contract 
Owners reallocate account value prior to the Effective Date or within 
30 days after the Effective Date, there will be no charge for the 
reallocation of accumulated value from the Replaced Fund subaccount and 
the reallocation will not count as a transfer when imposing any 
applicable restriction or limit under the Contract on transfers. The 
Companies will not exercise any right they may have under the Contracts 
to impose additional restrictions or fees on transfers from the 
Replaced Fund under the Contracts (other than restrictions related to 
frequent or disruptive transfers) for a period of at least 30 days 
following the Effective Date of the Substitution. Additionally, all 
current Contract Owners will be sent prospectuses of the Substitute 
Fund before the Effective Date.
    23. Within five (5) business days after the Effective Date, 
affected Contract Owners will be sent a written confirmation (``Post-
Substitution Confirmation'') indicating that shares of the Replaced 
Fund have been redeemed and that the shares of Substitute Fund have 
been substituted. The Post-Substitution Confirmation will show how the 
allocation of the Contract Owner's account value before and immediately 
following the Substitution has changed as a result of the Substitution 
and detail the transactions effected on behalf of the respective 
affected Contract Owner because of the Substitution.

Applicant's Legal Analysis

    1. Applicants represent that each of the prospectuses for the 
Contracts expressly discloses the reservation of the Companies' right, 
subject to compliance with applicable law, to

[[Page 35268]]

substitute shares of another open-end management investment company for 
shares of an open-end management investment company held by a 
subaccount of an Account.
    2. Applicants state that the Companies reserved this right of 
substitution both to protect themselves and their Contract owners in 
situations where either might be harmed or disadvantaged by 
circumstances surrounding the issuer of the shares held by one or more 
of its separate accounts, and to afford the opportunity to replace such 
shares where to do so could benefit the Contract owners and Companies.
    3. Applicants maintain that Contract Owners will be better served 
by the proposed Substitution. Applicants anticipate that the 
replacement of the Replaced Fund will result in a Contract that is 
administered and managed more efficiently, and one that is more 
competitive with other variable products in both wholesale and retail 
markets. As noted above, the Substitute Fund will be patterned after 
the Replaced Fund. The Substitute Fund will be managed according to the 
same investment objective and policies as the Replaced Fund and the 
investment adviser for the Replaced Fund will serve as the sub-adviser 
to the Substitute Fund.
    4. In addition to the foregoing, Applicants generally submit that 
the proposed Substitution meets the standards that the Commission and 
its staff have applied to similar substitutions that have been approved 
in the past.
    5. Applicants anticipate that Contract owners will be at least as 
well off with the proposed array of subaccounts to be offered after the 
proposed substitutions as they have been with the array of subaccounts 
offered before the substitutions. The proposed Substitution retains for 
Contract owners the investment flexibility which is a central feature 
of the Contracts. If the proposed Substitution is carried out, all 
Contract owners will be permitted to allocate purchase payments and 
transfer accumulated values and contract values between and among the 
remaining subaccounts as they could before the proposed Substitution.
    6. Applicants maintain that the terms of the Substitution, 
including the consideration to be paid and received by the Replaced 
Fund or the Substitute Fund, are reasonable, fair and do not involve 
overreaching principally because the transactions do not cause owners' 
interests under a Contract to be diluted and because the transactions 
will conform with the principal conditions enumerated in Rule 17a-7 of 
the 1940 Act. The proposed transactions will take place at relative net 
asset value with no change in the amount of any Contract owner's 
Contract or cash value, accumulation value or death benefit or in the 
dollar value of his or her investment in any of the Accounts.
    7. Applicants submit that the Substitution by the Companies is 
consistent with the policies of the Substitute Fund and the Replaced 
Fund, as recited in the current registration statements and reports 
filed by each under the 1940 Act. Applicants also submit that the 
Substitution is consistent with the general purposes of the 1940 Act.
    8. Applicants submit that, to the extent that the Substitution is 
deemed to involve principal transactions between affiliates, the 
procedures and terms and descriptions described in the Application 
demonstrate that neither the Replaced Fund, the Substitute Fund, the 
Accounts nor any other Applicant will be participating in the 
Substitution on a basis less advantageous than that of any other 
participant. Even though the Applicants may not rely on Rule 17a-7, 
Applicants believe that the Rule's conditions outline the type of 
safeguards that result in transactions that are fair and reasonable to 
registered investment company participants and preclude overreaching in 
connection with an investment company by its affiliated persons.
    9. The boards of trustees or directors, as applicable, of the 
Replaced Fund and the Substitute Fund have adopted procedures, as 
required by paragraph (e)(1) of Rule 17a-7, pursuant to which the 
portfolios or funds of each may purchase and sell securities to and 
from their affiliates. The Companies and the investment advisers will 
carry out the Substitution in conformity with the principal conditions 
of Rule 17a-7 and the Replaced Fund's and the Substitute Fund's 
procedures thereunder. Also, no brokerage commission, fee, or other 
remuneration will be paid to any party in connection with the proposed 
transaction. In addition, the applicable ING Investors Trust board will 
subsequently review the Substitution and make the determinations 
required by paragraph (e)(3) of Rule 17a-7.
    10. Except as noted below, applicants state that the Substitution 
will take place in accordance with the requirements enumerated in Rule 
17a-7 under the 1940 Act and with the approval of the boards of ING 
Investors Trust, except that the Substitution may be effected in cash 
or in-kind. Applicants further submit that the Substitution is 
consistent with the investment policy of the Replaced Fund and the 
Substitute Fund, as recited in the current prospectuses relating to 
each.
    11. With regard to the in-kind transfer, the investment adviser of 
the Substitute Fund and the investment adviser to the Replaced Fund 
intend to value securities selected for transfer between the two funds 
in a manner that is consistent with the current methodology used to 
calculate the daily net asset value of the Replaced Fund. Where the 
Replaced Fund's investment adviser employs certain third party, 
independent pricing services to value securities held by the Replaced 
Fund (``Vendor Pricing''), the investment adviser of the Substitute 
Fund and Replaced Fund's investment adviser will employ Vendor Pricing 
to value securities held by the Replaced Fund that are selected for 
transfer to the Substitute Fund. Generally, the redemption of 
securities from the Replaced Fund and subsequent transfer to the 
Substitute Fund will be done on a pro-rata basis. In the event that the 
Replaced Fund holds illiquid or restricted securities or assets that 
are not otherwise readily distributable or if a pro-rata transfer of 
securities would result in the parties holding odd lots, the investment 
advisers may agree to have the Replaced Fund transfer to the Substitute 
Fund an equivalent amount of cash instead of securities.
    12. After the assets have been contributed to the Substitute Fund, 
responsibility for valuation of the securities held by the Substitute 
Fund will shift to the valuation committee of the Substitute Fund's 
board of trustees. At the end of the first trading following the 
transfer, the applicable valuation agent and custodian for the 
Substitute Fund will value the securities held by the Substitute Fund. 
The foregoing notwithstanding, the Substitute Fund's board of trustees 
will retain ultimate responsibility for valuation decisions.

Applicant's Conditions

    1. The Substitute Fund has an investment objective and investment 
policies that are the same as the investment objective and policies of 
the Replaced Fund, so that the objective of the affected Contract 
Owners can continue to be met.
    2. For two years following the implementation of the Substitutions 
described herein, the net annual expenses of the Substitute Fund will 
not exceed the net annual expenses of the Replaced Fund immediately 
preceding the Substitutions. To achieve this limitation, Directed 
Services LLC will waive fees or reimburse the Substitute

[[Page 35269]]

Fund in certain amounts to maintain expenses at or below the limit. Any 
adjustments or reimbursements will be made at least on a quarterly 
basis. In addition, the Companies will not increase the Contract fees 
and charges, including asset based charges such as mortality and 
expense risk charges deducted from the Subaccounts, that would 
otherwise be assessed under the terms of the Contracts for a period of 
at least two years following the Substitutions.
    3. The Shareholder Services Fee of the Class S shares of the ING 
Franklin Mutual Shares Portfolio will be permanently capped at 0.25%.
    4. Affected Contract Owners may reallocate amounts from the 
Replaced Fund without incurring a reallocation charge or limiting their 
number of future reallocations, or withdraw amounts under any affected 
Contract or otherwise terminate their interest therein at any time 
prior to the Effective Date and for a period of at least 30 days 
following the Effective Date in accordance with the terms and 
conditions of such Contract. Any such reallocation will not count as a 
transfer when imposing any applicable restriction or limit under the 
Contract on transfers.
    5. The Substitutions will be effected at the net asset value of the 
respective shares in conformity with Section 22(c) of the 1940 Act and 
Rule 22c-1 thereunder, without the imposition of any transfer or 
similar charge by Applicants.
    6. The Substitution will take place at relative net asset value 
without change in the amount or value of any Contract held by affected 
Contract Owners. Affected Contract Owners will not incur any fees or 
charges as a result of the Substitution, nor will their rights or the 
obligations of the Companies under such Contracts be altered in any 
way.
    7. The Companies or their affiliates will pay all expenses and 
transaction costs of the Substitutions, including legal and accounting 
expenses, any applicable brokerage expenses, and other fees and 
expenses. In addition, the Substitutions will not impose any tax 
liability on affected Contract owners.
    8. The Substitution will be effected so that investment of 
securities will be consistent with the investment objectives, policies 
and diversification requirements of the Substitute Fund. No brokerage 
commissions, fees or other remuneration will be paid by the Replaced 
Fund or the Substitute Fund or affected Contract Owners in connection 
with the Substitution.
    9. The Substitution will not alter in any way the annuity, life or 
tax benefits afforded under the Contracts held by any affected Contract 
Owner.
    10. The Companies will send to their affected Contract Owners 
within five (5) business days of the Substitution a written Post-
Substitution Confirmation which will include the before and after 
account values (which will not have changed as a result of the 
Substitution) and detail the transactions effected on behalf of the 
respective affected Contract Owner with regard to the Substitution. 
With the Post-Substitution Confirmations the Companies will remind 
affected Contract Owners that they may reallocate amounts from any of 
the Replaced Funds without incurring a reallocation charge or limiting 
their number of future reallocations for a period of at least 30 days 
following the Effective Date in accordance with the terms and 
conditions of their Contract.
    11. The Commission shall have issued an order: (a) Approving the 
Substitutions under Section 26(c) of the 1940 Act; and (b) exempting 
the in-kind redemptions from the provisions of Section 17(a) of the 
1940 Act as necessary to carry out the transactions described in this 
Application.
    12. A registration statement for the Substitute Fund is effective, 
and the investment objectives and policies and fees and expenses for 
the Substitute Fund as described herein have been implemented.
    13. Each affected Contract Owner will have been sent a copy of: (a) 
A supplement to the Contract prospectus informing shareholders of this 
Application; (b) a prospectus for the appropriate Substitute Fund; and 
(c) a second supplement to the Contract prospectus setting forth the 
Effective Date and advising affected Contract Owners of their right to 
reconsider the Substitutions and, if they so choose, any time prior to 
the Effective Date and for 30 days thereafter, to reallocate or 
withdraw amounts under their affected Contract or otherwise terminate 
their interest therein in accordance with the terms and conditions of 
their Contract.
    14. The Companies shall have satisfied themselves, that: (a) The 
Contracts allow the substitution of investment company shares in the 
manner contemplated by the Substitutions and related transactions 
described herein; (b) the transactions can be consummated as described 
in this Application under applicable insurance laws; and (c) any 
regulatory requirements in each jurisdiction where the Contracts are 
qualified for sales have been complied with to the extent necessary to 
complete the transaction.
    15. Under the manager-of-managers relief granted to the ING 
Investors Trust, a vote of the shareholders is not necessary to change 
a sub-adviser, except for changes involving an affiliated sub-adviser. 
Notwithstanding, the parties agree that before the Substitute Fund 
relies on any Commission order or rule that would permit the Substitute 
Fund to enter into contracts with subadvisers without obtaining 
shareholder approval, the Substitute Fund's reliance on the order or 
rule will be approved, following the substitution proposed herein, by a 
majority of the Substitute Fund's outstanding voting securities.

Conclusion

    For the reasons and upon the facts set forth above, Applicants 
submit that the requested order meets the standards set forth in 
Section 26(c). Applicants request an order of the Commission, pursuant 
to Section 26(c) of the Act, approving the Substitutions.

    For the Commission, by the Division of Investment Management, 
pursuant to delegated authority.
Florence E. Harmon,
Deputy Secretary.
[FR Doc. E7-12405 Filed 6-26-07; 8:45 am]
BILLING CODE 8010-01-P