SEC Framework for Non-Variable Insurance Contracts. Mary E. Thornton Payne Sutherland Asbill & Brennan LLP Washington, D.C.

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1 509 ALI-ABA Conference on Life Insurance Company Products: Current SEC, FINRA, Insurance, Tax, and ERISA Regulatory and Compliance Issues November 5-6, 2009 Washington, D.C. SEC Framework for Non-Variable Insurance Contracts By Mary E. Thornton Payne Sutherland Asbill & Brennan LLP Washington, D.C. Michael H. Miller Aviva USA Des Moines, Iowa 2009 Mary E. Thornton Payne and Michael H. Miller. All Rights Reserved.

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3 511 SEC Framework for Non-Variable Insurance Contracts Mary Thornton Payne SUTHERLAND 1275 Pennsylvania Avenue, NW Washington, DC (202) Michael H. Miller AVIVA LIFE AND ANNUITY COMPANY 699 Walnut Street Des Moines, IA (515) I. INTRODUCTION Continuously offered fixed or non-variable insurance contracts registered under the Securities Act of 1933 (the Securities Act ) are subject to the conventional public offering registration and regulatory framework. The application of this framework puts non-variable insurance contracts at a competitive disadvantage relative to variable annuity and variable life insurance contracts ( variable contracts ) and mutual funds. Recognizing the unique features of insurance products and other continuously offered investment products, the Securities and Exchange Commission (the SEC or the Commission ) developed a separate registration and regulatory structure for variable contracts and mutual funds. A registration and regulatory structure for non-variable insurance contracts substantially similar to that of the investment company structure would provide a competitive level playing field and better serve investors needs. This outline begins with a description of the types of contracts that currently are encompassed in the term non-variable insurance contracts. It then provides a summary of the registration regime currently applicable to non-variable insurance contracts required to register under the Securities Act, including the disclosure required in the prospectus, as well as the timing of effectiveness of post-effective amendments to the registration statement, the payment of registration fees, and reporting obligations triggered under the Securities Exchange Act of 1934 (the Exchange Act ). Next, this outline addresses the types of marketing communications permitted in connection with the offer and sale of registered non-variable insurance contracts, which is governed by the SEC rules applicable to general securities offerings, rather than those applicable to the offer and sale of investment company securities, such as variable contracts or mutual funds. Finally, the outline discusses the deficiencies in the current registration and regulatory regime for non-variable insurance contracts, and suggests approaches that the Commission should consider to level the playing field between non-variable and variable contracts. 1

4 512 II. NON-V ARIABLE I NSURANCE C ONTRACTS A. Overview. Certain types of non-variable insurance contracts may be deemed to be securities under the Securities Act and required to register with the Commission. Such contracts may include market value adjusted (or MVA ) annuity or life insurance contracts, indexed annuity or life insurance contracts (depending on the fate of Rule 151A), and stand-alone guaranteed living benefit ( GLB ) contracts. Unless otherwise specified, use of the term non-variable insurance contracts in this outline refers only to those contracts required to be registered as securities under the Securities Act. B. Description of MVA Contracts. Under a typical fixed deferred annuity or life insurance contract, an insurance company guarantees a specified rate of return to contract owners. Fixed deferred annuity or life insurance contracts usually have a surrender or accumulation period, during which a contract owner who withdraws more than a specified amount (e.g., 10%) is assessed a surrender charge. The surrender charge is intended to recover the up-front costs that the insurance company assumes in selling the contract, such as the commission paid to the sales agent. Another risk assumed by the insurance company in regard to withdrawals during the surrender period is that a contract owner may wish to make a withdrawal at a time when the market value of the investments made by the insurance company to back the contract is low. Some fixed annuity and life insurance contracts with MVA features shift this risk to contract owners. Under an MVA, if a contract owner makes a withdrawal at a time when interest rates are higher than at the time when the contract was issued, the contract owner receives less than he or she otherwise would without the MVA. Conversely, if interest rates at the time of withdrawal are lower than at the time when the contract was issued, the contract owner receives more than he or she otherwise would without the MVA. Because contracts that impose an MVA that may invade principal shift investment risk to the contract owner, they generally have been required to be registered as securities. C. Description of Indexed Contracts. In addition to features common under typical fixed deferred annuity or life insurance contracts (such as surrender charges), some fixed deferred annuity or life insurance contracts credit interest above a guaranteed minimum rate based in part on the movement of one or more financial indices, such as the Standard & Poor s 500 Index ( indexed contracts ). Most commonly, interest is calculated and credited at the end of a term. The formula used to calculate interest may take into account several factors, including an indexing method, participation rates, vesting, margins, caps, and floors. Common indexing methods include: 2

5 513 Annual Reset (Ratcheting), where interest is determined by comparing the index value at the end of the contract year with the index value at the start of the contract year; High-Water Mark, where interest is determined by looking at the index value at various points during the term (usually on contract anniversaries) and determining the difference between the highest index value and the current index value; and Point-to-Point, where interest is based on the difference between the index value at the end of the term and the index value at the start of the term. Averaging, where the average of an index s value is used rather than the actual value of the index on a specified date, may also be used. Although most indexed contracts have not been registered with the SEC to date in reliance on Section 3(a)(8) of the Securities Act, recently adopted Rule 151A would generally require registration of indexed contracts on a prospective basis as of the effective date. Rule 151A has been subject to challenge, and the U.S. Court of Appeals for the D.C. Circuit found that the SEC did not adequately consider the rule s effects on efficiency, competition, and capital formation, and therefore remanded Rule 151A to the SEC for further reconsideration consistent with the court s opinion. The rule is currently under reconsideration, and it remains to be seen what action the SEC ultimately will take. D. Description of Stand-Alone Guaranteed Living Benefits. Stand-alone GLBs are relatively new products developed based on popular types of riders that are offered in connection with many variable annuity contracts registered on Form N-4. Unlike such riders, however, stand-alone GLBs do not relate to the contract value inside of a variable annuity, but instead relate to the value of the contract owner s investments in a separate and distinct account, such as a mutual fund account, brokerage account, or investment advisory account. In general, stand-alone GLBs guarantee regular income payments for the life of a contract owner to the extent that the value of the contract owner s guaranteed investment in the relevant account is not sufficient to provide such payments. Stand-alone GLBs typically have two phases: an accumulation phase and a payout phase. During the accumulation phase, the contract owner s account usually must be allocated in accordance with restrictions imposed by the insurance company, and withdrawals beyond a specified amount can jeopardize the guarantee. If the contract owner s account value reduces to a specified level which is usually set at zero then the payout phase begins. For the remaining life of the contract owner, the insurance company makes income payments that are calculated based on the amount originally invested in the mutual fund, brokerage, or investment advisory account by 3