[Federal Register Volume 60, Number 247 (Tuesday, December 26, 1995)]
[Notices]
[Pages 66807-66811]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-31220]



=======================================================================
-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

[Rel. No. IC-21605; File No. 812-9334]


New England Variable Life Insurance Company, et al.

December 18, 1995.
AGENCY: Securities and Exchange Commission (the ``SEC'' or the 
``Commission'').

ACTION: Notice of application for an order of approval under the 
Investment Company Act of 1940 (the ``1940 Act'').

-----------------------------------------------------------------------

APPLICANTS: New England Variable Life Insurance Company (``NEVLICO''), 
New England Variable Annuity Separate Account (``NEVLICO Account''), 
New England Mutual Life Insurance Company (``New England''), The New

[[Page 66808]]

England Variable Account (``TNE Account'') and New England Securities 
Corporation (``New England Securities'').

RELEVANT 1940 ACT SECTIONS: Order requested under Section 11(c).

SUMMARY OF APPLICATION: Applicants seek an order approving offers to 
owners of certain variable annuity contracts supported by the TNE 
Account (the ``Old Contracts'') to exchange the Old Contracts for 
certain variable annuity contracts supported by the NEVLICO Account 
(the ``New Contracts'').

FILING DATE: The application was filed on November 18, 1994 and amended 
on August 16, 1995.

HEARING OR NOTIFICATION OF HEARING: An order granting the application 
will be issued unless the SEC orders a hearing. Interested persons may 
request a hearing by writing to the SEC's Secretary and serving 
Applicants with a copy of the request, personally or by mail. Hearing 
requests should be received by the SEC by 5:30 p.m. on January 12, 
1996, 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 SEC's 
Secretary.

ADDRESSES: Secretary, SEC, 450 Fifth Street, NW., Washington, DC 20549. 
Applicants, 501 Boylston Street, Boston Massachusetts 02117.

FOR FURTHER INFORMATION CONTACT: Joyce Merrick Pickholz, Senior 
Counsel, or Wendy Finck Friedlander, Deputy Chief, at (202) 942-0670, 
Office of Insurance Products, Division of Investment Management.

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 SEC.

Applicant's Representations

    1. NEVLICO, a stock life insurance company organized in 1980 under 
Delaware law, is a wholly-owned subsidiary of New England, a mutual 
life insurance company organized in Massachusetts in 1835.
    2. The NEVLICO Account and the TNE Account (``Accounts''), separate 
accounts within the meaning of Section 2(a)(37) of the 1940 Act, are 
registered under the 1940 Act as unit investment trusts. The Accounts 
are divided into subaccounts each of which invests in a designated 
portfolio of the New England Zenith Fund or the Variable Insurance 
Products Fund. Sub-accounts may be added to or deleted from the 
Accounts from time to time.
    3. New England Securities serves as the distributor and principal 
underwriter for the Old Contracts and will serve as distributor and 
principal underwriter for the New Contracts. New England Securities is 
a wholly-owned subsidiary of New England.
    4. According to the Applicants, the Old Contracts and the New 
Contracts are similar. However, the New Contracts offer an enhanced 
death benefit, a more flexible systematic withdrawal feature, 
alternative annuity options and waivers of charges in certain 
situations. Fewer investment options are offered under the New 
Contracts.
    5. Comparison of Contract Features:
    a. Forms in Which Issued. Both the Old Contracts and the New 
Contracts are issuable as flexible and single purchase payment deferred 
variable annuity contracts.
    b. Purchase Payments. The initial purchase payment for the Old 
Contracts must be at least $25 for a flexible payment contract and 
$5,000 for a single payment contract. Subsequent purchase payments must 
be at least $25. In three states, premium taxes are deducted from 
payments before investment under an Old Contract. The initial purchase 
payment for a New Contract must be at least $2,000 for certain tax-
qualified contracts and $5,000 for all other contracts. Subsequent 
purchase payments must be $250 and no purchase payments may be made 
after a contract owner reaches age 86. No premium taxes are deducted 
from purchase payments before investment under a New Contract, however, 
such taxes will be deducted upon a full or partial surrender. Under 
both the Old and New Contracts, New England and NEVLICO reserve the 
right to limit purchase payments made in any year or in total under the 
Contracts.
    c. Allocations and Transfers. Both the Old and New Contracts permit 
allocations to up to 10 accounts including one or more subaccounts and/
or the Fixed Account. 17 subaccounts are available under the Old 
Contracts, whereas 12 are available under the New Contracts. Minimum 
transfer amounts are $25 under the Old Contracts and $100 under the New 
Contracts subject to a maximum of $5,000 under both contracts. Dollar 
cost averaging is permitted under both contracts.
    d. Annuity Payments. Under the Old Contracts, the owner could 
select a maturity date at issue, subject to certain limits. The 
maturity date under the New Contracts is the date that the owner or 
annuitant reaches age 95 (or the maximum permitted under state law). 
Three annuity options are the same under both contracts. However, the 
Old Contracts offer three options not available under the New 
Contracts: life income, installment refund; investment; and specified 
amount of income and the New Contracts offer one annuity option not 
available under the Old Contracts, namely, income until the payee 
teaches 100. All options are available under the Old Contracts in fixed 
form, and all except investment and specified amount of income options 
are available in variable form. All options under the New Contracts are 
available in fixed and variable form. Under the New Contracts, the 
payee under the variable form of a life contingency payment option with 
a period certain may withdraw the commuted value of the remaining 
payments payable during the period certain.
    e. Death Proceeds. Under the Old Contracts, the death benefit is 
the greater of the Contract value next determined after receipt of 
proof of death or election of payment form and the sum of all purchase 
payments less surrenders. Under the New Contracts, the death benefit is 
the Contract value next determined after receipt of proof of death or 
election of payment form and the guaranteed minimum death benefit. On 
the date of issue, the guaranteed minimum benefit is the initial 
purchase payment. On the seventh contract anniversary and every seven 
years thereafter until the owner's (or, if applicable, annuitant's) 
76th birthday (if joint owners, the 71st birthday of the eldest owner), 
the guaranteed minimum is recalculated and becomes the greater of the 
Contract value on the date of the recalculation or the guaranteed 
minimum applicable just before the recalculation. Between 
recalculations, adjustments are made for interim purchase payments and 
surrenders.
    f. Surrenders. After a partial surrender, the remaining Contract 
value must be at least $500 under an Old Contract and $1,000 under a 
New Contract. Otherwise, except for a deduction for premium taxes under 
a New Contract, the surrender rights and privileges are the same under 
he Old and New Contracts.
    g. Systematic Withdrawals. Prior to annuitization, the owner of an 
Old Contract may withdraw a specified portion of Contract value 
periodically. The New Contracts permit withdrawal of either a fixed 
dollar amount or the investment gain under the contract, provided the 
withdrawal is at least $100.
    6. Comparison of Contract Charges:
    
[[Page 66809]]

    a. Administration Contract Charges. This fee is $30 under the Old 
Contracts; under the New Contracts, the fee is the lesser of $30 or 2% 
of the Contract value. Under the New Contracts, the fee is waived if 
Contract value is at least $50,000 at year end or if Contract value was 
$25,000 at the end of the prior year and purchase payments of at least 
$1,000 (net of surrenders) were made during the year.
    b. Asset-Based Charges. The aggregate asset-based charges under 
both contracts is 1.35% which is composed of (1) an administrative 
services charge of .40% under the Old Contracts and .10% under the New 
Contracts and (2) a mortality and expense risk charge under the Old 
Contracts of .95% and 1.25% under the New Contracts.
    c. Transfer Charge. A $10 charge is imposed under both Contracts on 
transfers in excess of 12 per year. The charge may be increased under 
the New Contracts and the number of free transfers may be reduced under 
both Contracts (to 4 under the Old Contracts and 0 under New 
Contracts).
    d. Contingent Deferred Sales Charge. No sales charges are deducted 
from purchase payments under either the Old or New Contracts, but a 
contingent deffered sales charge (``CDSC'') may apply to the following 
events (a) full or partial surrenders of Contract value, (b) the 
application of Contract exceeds to certain annuity options prior to the 
maturity date and, for new Contracts (c) the withdrawal of the commuted 
value of proceeds applied to an annuity option if no CDSC was deducted 
at annuitization and (d) in states where the maximum maturity age is 
less than 95, the maturity date, if a purchase payment was made less 
than seven years before the withdrawal.
    Under the Old Contracts, a declining CDSC applies during the first 
ten Contract years, to withdrawals in excess of 10% of Contract value 
on the date of the first withdrawal in the Contract year. Under the New 
Contracts, a declining CDSC applies to the withdrawal of purchase 
payments invested less than seven years. There is a few withdrawal 
amount under the New Contracts equal to the greater of 10% of the 
Contract value at the beginning of the year, or the excess of Contract 
value over premiums subject to a CDSC on the withdrawal date. The CDSC 
under both the New and Old Contracts may not exceed 8% of the first 
$50,000 of purchase payments and 6.5% of payments exceeding $50,000.

                      CDSC Under the Old Contracts                      
------------------------------------------------------------------------
                                                                Percent 
                                                                   of   
                                                                contract
                                                                 value  
                        Contract year                          withdrawn
                                                                (after) 
                                                                10% free
                                                                 amount 
                                                               (percent)
------------------------------------------------------------------------
1............................................................        6.5
2............................................................        6.0
3............................................................        5.5
4............................................................        5.0
5............................................................        4.5
6............................................................        4.0
7............................................................        3.5
8............................................................        3.0
9............................................................        2.0
10...........................................................        1.0
11 and after.................................................          0
------------------------------------------------------------------------


                      CDSC Under the New Contracts                      
------------------------------------------------------------------------
                                                               Charge as
                                                              percentage
                                                                  of    
          Years purchase payment has been invested             purchase 
                                                                payment 
                                                               (percent)
------------------------------------------------------------------------
1...........................................................           7
2...........................................................           6
3...........................................................           5
4...........................................................           4
5...........................................................           3
6...........................................................           2
7...........................................................           1
Thereafter..................................................           0
------------------------------------------------------------------------

    7. The Exchange Offer:
    a. Applicants propose to offer owners of Old Contracts the 
opportunity to exchange their contracts for New Contracts (the 
``Exchange Offer'') by means of disclosure included in the prospectus 
for the New Contracts. The disclosure would note relevant differences 
between the Old and New Contracts and explain how the death benefit and 
CDSC would be calculated in New Contracts issued in exchange for Old 
Contracts. In particular, the disclosure will explain how an owner of 
an Old Contract contemplating an Exchange could minimize the applicable 
contingent deferred sales charge depending on whether the payment is 
made on or before the Exchange or after the Exchange is affected.
    b. No purchase payment would be required in connection with an 
Exchange (except if necessary to meet the minimum initial premium 
requirement for the New Contracts). A pro rata portion of the annual 
administration contract charge would be deducted on the date the 
Exchange is effected (the ``Exchange Date'') because Contract years 
will thereafter be based on the Exchange Date rather than the issue 
date of the Old Contract. However, no sales charge would be deducted in 
connection with an Exchange nor would commissions be paid to New 
England Securities or any of its registered representatives. Applicants 
state that they believe that an Exchange would not result in adverse 
tax consequences to owners of Old Contracts.
    c. According to the Application, the Contract value (``Exchange 
Value'') of the Old Contracts (together with any additional payments 
submitted with an application for the New Contract) on the Exchange 
Date would be applied to the New Contract as the Contract value as of 
the Exchange Date. If a charge was deducted under the Old Contract for 
premium taxes, Applicants represent that a credit will be applied to 
the New Contract on the Exchange Date in an amount calculated to offset 
the premium tax charge, if any, that would apply to the Exchanged Value 
upon annuitization, surrender or payment of the Death Proceeds under 
the New Contract.
    d. If the Exchange Value is allocated among Eligible Funds not 
available under the New Contracts, the owner would be required to 
reallocate the Exchanged Value to available eligible funds. Applicants 
represent that any such reallocation would not be counted toward the 12 
free transfers permitted in the first New Contract year.
    e. The Exchange Date would be the issue date of the new Contract 
for purposes of determining contract years and anniversaries after the 
Exchange Date and the maturity date would be set at age 95 of the older 
of the contract owner or annuitant or the maximum age allowable by law. 
A new minimum death benefit would be calculated for the New Contract 
equal to the greater of purchase payments made on the Old Contract 
(adjusted for withdrawals) or the Exchange Value. The guaranteed 
minimum death benefit would be recalculated on each seven-year 
anniversary of the Exchange Date.
    f. Withdrawals after the Exchange Date would be governed by the 
terms of the New Contract for purposes of calculating any CDSC. 
Accordingly, the Exchange Value would be treated as the oldest purchase 
payment and would be withdrawn first, after the free withdrawal amount 
was calculated. However, withdrawals of Exchange Value will be subject 
to the CDSC percentage applicable under the Old Contracts taking into 
account the number of years the Old Contract had 

[[Page 66810]]
been in effect, rather than the CDSC under the New Contracts.
    g. In most years the CDSC percentage under the Old Contracts will 
be slightly higher than for the New Contracts. Applicants submit that 
the sales charge schedule under the Old Contracts was designed to cover 
the costs associated with the original sale of those Contracts and, it 
is believed that, if the original sales schedule is not preserved for 
the Exchange Value, some owners might exchange contracts with the 
intent to then surrender the New Contract and incur a lower CDSC.
    h. Because a CDSC is assessable under an Old Contract for the first 
ten contract years, the applicant of the Old Contract's CDSC schedule 
to the Exchange Value from an Old Contract outstanding less than three 
years would subject the Exchange Value to a CDSC for a longer period 
after the Exchange Date than a purchase payment made immediately after 
the Exchange Date. However, Applicants will waive any CDSC on Exchange 
Value that would otherwise be imposed more than seven years after the 
Exchange Date.\1\

    \1\ With respect to the CDSC waiver, Applicants state that they 
intend to rely on Rule 22d-1 under the 1940 Act and undertake to 
disclose the terms of the sales load variation in the prospectus for 
the New Contracts.
---------------------------------------------------------------------------

    i. Applicants submit that the application of the original CDSC 
schedule of the Old Contract to any purchase payments submitted with 
the application for the New Contract is to the advantage of owners of 
Old Contracts outstanding more than three full contract years before 
the Exchange Date because the CDSC rate under the Old Contracts is in 
most cases less, and never more than, the CDSC rate applicable to 
purchase payments made immediately after the Exchange Date. Whether 
there is a benefit from the application of the original CDSC to the 
Exchange Value of Old Contracts held less than three years, depends on 
whether there is a surrender during the first seven years. During the 
first few years of the seven year period the applicable CDSC rate under 
the Old Contracts is slightly lower than under the New Contracts, but 
the reverse is true during the later years of the seven year period. 
Applicants believe that the treatment of additional purchase payments 
submitted with an exchange application as part of Exchange Value 
results in the fairest treatment for the broadest class of owners of 
Old Contracts and that the waiver of any applicable CDSC more than 
seven years after the Exchange Date will minimize any inequity to 
owners of contracts outstanding less than three years of the Exchange 
Date. Also, Applicants undertake to include in the prospectus for the 
New Contracts, disclosure identifying the circumstances in which it 
would be advantageous or disadvantageous to submit a purchase payment 
with the application or immediately after the issuance of the New 
Contract.

Applicants' Legal Analysis

    1. Section 11(a) of the 1940 Act provides in relevant part that it 
shall be unlawful for any registered open-end management investment 
company (``fund'') or its principal underwriter to make an offer to a 
shareholder of that fund or of another fund to exchange his security 
for a security in the same or another fund on any basis other than the 
relative net asset values of the securities to be exchanged, unless the 
terms of the offer have first been submitted to and approved by the 
Commission or the offer complies with the Commission's rules. Section 
11(c) provides that the provisions of subsection (a) apply, 
irrespective of the basis of exchange, to any offer of exchange of a 
security of a fund for the securities of a unit investment trust and to 
any type of offer of exchange of the securities of a registered unit 
investment trust for the securities of any other investment company. 
Therefore, prior Commission approval is required for exchange offers 
subject to Section 11(c) even if made on the basis of relative net 
asset values.
    2. Rule 11a-2 under the 1940 Act, permits exchange offer without 
prior Commission approval by registered insurance company separate 
accounts and their principal underwriters to holders of variable 
contracts supported by separate accounts having the same or an 
affiliated insurance company depositor or sponsor provided, in essence, 
that the exchange is made on the basis of the relative net asset values 
of the securities to be exchanged (less administrative fees disclosed 
in the offering account's registration statement), and any sales loads 
imposed is calculated and deducted in accordance with the terms and 
conditions of Rule 11a-2. Paragraph (d)(1) of Rule 11a-2 provides that, 
where both the exchanged and acquired securities are subject to 
deferred sales loads, any deferred sales load imposed on the acquired 
security shall be calculated as if the holder of the acquired security 
had been the holder of that security from the date on which he became 
the holder of the exchanged security, and purchase payments made for 
the exchanged security had been made for the acquired security on the 
date on which they were made for the exchanged security. Applicants 
state that Rule 11a-2(d)(1), on its face, appears to require that any 
CDSC deducted on a surrender made after the exchange be deducted in 
accordance with the CDSC schedule of the acquired contract.
    3. No CDSC would be imposed at the time of the exchange of an Old 
Contract for a New Contract. However, on surrender of the New Contract, 
the Exchanged Value would be subject to the CDSC provided for by the 
Old Contract rather than the CDSC provided for in the New Contract. 
Taking into account the rate at which the CDSC declines under each 
Contract, the CDSC rate applied to Exchange Value withdrawn more than 
two years after the Old Contract was issued, would be higher under the 
Old Contract's CDSC schedule than under the New Contract's CDSC 
schedule for the same number of years of investment. Therefore, 
Applicants submit that the Exchange Offer does not appear to comply 
with the terms of Rule 11a-2 and prior approval of the Exchange Offer 
by the Commission, pursuant to Section 11(c) of the 1940 Act, is 
required.
    4. According to Applicants, the public policy underlying Section 11 
may be inferred from Section 1(b)(1) of the 1940 Act, which states that 
the national public interest and the interests of investors are 
adversely affected when, among other things, investors exchange 
securities issued by investment companies without adequate, accurate 
and explicit information, fairly presented, concerning the character of 
such securities and the circumstances, policies and financial 
responsibility of such companies and their management. Also, according 
to the legislative history of the 1940 Act, the purpose of Section 
11(a) is to provide Commission review of the terms of certain exchange 
offers, to assure that an offer is not being proposed solely for the 
purpose of exacting additional selling charges and profits from 
investors by switching them from one security to another.
    5. Applicants submit that the owners of the Old Contracts will 
receive adequate, accurate and explicit information, fairly presented, 
concerning the Exchange Offer in the prospectus for the New Contracts 
which will be given to any owner of an Old Contract considering the 
Exchange Offer.
    6. Applicants assert that the Exchange Offer does not impose 
additional sales load but preserves the old sales charge schedule for 
Exchange Value. No sales charge would be deducted on the Exchange Date, 
and, for purposes of any CDSC applicable after the exchange, 

[[Page 66811]]
credit would be given for the time that the Old Contract was in effect.
    7. Applicants submit that the history for Rule 11a-2 does not 
reflect any policy basis for the apparent requirement that the sales 
load schedule for the acquired security be applied to Contract values 
carried over from the exchanged security. Provisions of Rule 11a-2 
relevant to exchanges of variable annuity contracts with front-end 
sales load structures effectively permit the deduction of an aggregate 
sales load based on the highest sales load rate applicable to either 
the exchanged security or acquired security. Applicants submit that 
there is no policy reason for permitting the highest sales load rate to 
apply in the context of contracts with a front-end sales load 
structure, but not contracts with a deferred sales load structure. 
Further, Applicants note that Rule 11a-3, which applies to exchange 
offers involving mutual fund shares, prohibits the deduction of a 
deferred sales load on an exchanged security at the time of exchange, 
but permits the deduction of that sales load when the acquired security 
is redeemed, provided that, among other things, credit is given for the 
time the acquired security was held. Thus, Applicants state that Rule 
11a-3 would permit the CDSC deductions as contemplated in the Exchange 
Offer and cite examples 4 and 5 in the appendix to the Commission 
release adopting Rule 11a-3 (Inv. Co. Act Rel. No. 17097) in support of 
their view. Applicants submit that there is no policy reason for 
applying different rules to mutual fund exchange offers than are 
applied to separate account exchange offers.

Applicants' Conclusion

    For the reasons set forth above, Applicants submit that the 
Exchange Offer complies with the general principals of Section 11(a) 
and Rules 11a-2 and 11a-3 and does not present any of the abuses that 
Section 11 was intended to prevent. Accordingly, Applicants request 
approval pursuant to Section 11(c) of the 1940 Act to the extent 
necessary to permit the Exchange Offer to be made to owners of the Old 
Contracts as described above.

    For the Commission, by the Division of Investment Management, 
pursuant to delegated authority.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 95-31220 Filed 12-22-95; 8:45 am]
BILLING CODE 8010-01-M