[Federal Register Volume 61, Number 174 (Friday, September 6, 1996)]
[Notices]
[Pages 47217-47219]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-22720]


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SECURITIES AND EXCHANGE COMMISSION

[Rel. No. IC-22190; File No. 812-10178]


The Lincoln National Life Insurance Company, et al.

August 29, 1996.
AGENCY: U.S. Securities and Exchange Commission (``SEC'' or 
``Commission'').

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

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APPLICANTS:  The Lincoln National Life Insurance Company (``Lincoln 
Life''), Lincoln National Variable Annuity Account L (``Account L''), 
Lincoln Life & Annuity Company of New York (``Lincoln Life of NY''), 
Lincoln Life & Annuity Variable Annuity Account L (``Account L-NY''), 
and LNC Equity Sales Corporation.

RELEVANT ACT SECTIONS:  Order requested pursuant to Section 6(c) of the 
1940 Act from Sections 26(a)(2)(C) and 27(c)(2) of the 1940 Act.

SUMMARY OF APPLICATION: Applicants request an order pursuant to Section 
6(c) of the Investment Company Act of 1940 (1940 Act) granting 
exemptions from Sections 26(a)(2)(C) and 27(c)(2) of the 1940 Act to 
permit the deduction of a mortality and expense risk charge of 1.20% 
from: the assets of Account L or Account L-NY (collectively, the 
``Accounts'') in connection with the offer and sale of certain group 
variable annuity contracts (``Contracts'') and any contracts (``Future 
Contracts'') issued in the future by Lincoln Life or Lincoln Life of NY 
that are materially similar to the Contracts; the assets of other 
separate accounts ``Future Accounts'') established in the future by 
Lincoln Life or Lincoln Life of NY to fund Contracts and Future 
Contracts. Exemptive relief also is requested to the extend necessary 
to permit the offer and sale of Contracts and Future Contracts for 
which certain broker-dealers other than LNC Equity Sales Corporation 
serve as distributors and/or principal underwriters.

FILING DATE:  The application was filed on June 3, 1996, and amended 
and restated on August 28, 1996.

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 Secretary of the SEC 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 September 23, 
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 
Secretary of the SEC.

ADDRESSES: SEC, Secretary, 450 Fifth Street, N.W., Washington, D.C. 
20549. Applicants, John L. Steinkamp, Esq., Vice President & Associate 
General Counsel, The Lincoln National Life Insurance Company, 1300 
South Clinton Street, P.O. Box 1110, Fort Wayne, Indiana 46801.

FOR FURTHER INFORMATION CONTACT:
Edward P. Macdonald, Staff Attorney, or Patrice M. Pitts, Special 
Counsel, Office of Insurance Products, Division of Investment 
Management, at (202  942-0670.

SUPPLEMENTARY INFORMATION: The following is a summary of the 
application. The complete application may be obtained for a fee from 
the Public Reference Branch of the SEC.

Applicants' Representations

    1. Lincoln Life, a stock life insurance company incorporated under 
the laws of the State of Indiana in 1905, is principally engaged in the 
sale of life insurance and annuity policies. Lincoln Life is wholly-
owned by Lincoln National Corporation, a publicly-held insurance and 
financial services holding company.
    2. Account L was established by Lincoln Life as a separate account 
under the laws of the State of Indiana in 1996, pursuant to a 
continuing resolution of Lincoln Life's board of directors.
    3. Lincoln Life of NY, a stock life insurance company incorporated 
under the laws of the State of New York, in 1996, is principally 
engaged in the sale of life insurance and annuity policies in the state 
of New York. Lincoln Life of NY is a wholly-owned subsidiary of Lincoln 
Life.
    4. Account L-NY was established as a separate investment account 
under the laws of the State of New York on July 24, 1996, pursuant to a 
resolution of the board of directors of Lincoln Life of NY.
    5. Lincoln Life and Lincoln Life of NY (collectively, the 
``Companies'') each will offer three group variable annuity contracts--
Group Variable Annuity I, Group Variable Annuity II, and Group Variable 
Annuity III. The Contracts issued by Lincoln Life of NY are identical 
in all relevant respects to the Contracts issued by Lincoln Life, but 
for the identity of the insurance company issuing the Contracts and the 
separate account supporting the Contracts and any differences relating 
to state law

[[Page 47218]]

requirements. The contracts may be purchased with an initial 
contribution in connection with retirement plans that qualify for 
favorable federal income tax treatment as well as in connection with 
retirement plans that do not qualify for such treatment.
    6. Each of the Accounts consists of subaccounts (``Subaccounts''). 
Each Subaccount invests net contributions received under the Contracts 
in shares of one or more of the investment portfolios of the Dreyfus 
Stock Index Fund, the Dreyfus Variable Insurance Products Fund, the 
Fidelity Variable Insurance Products Fund, the Fidelity Variable 
Insurance Products Fund II, the Twentieth Century TCI Portfolios, Inc., 
the T. Rowe Price International Series, Inc., the Acacia Capital 
Corporation, and such other registered investment companies as the 
Companies may make available under their Contracts from time to time 
(each, a ``Fund''), or any combination thereof. Each Fund is an open-
end management investment company and, except for the Dreyfus Stock 
Index Fund, has a number of classes or series, in accordance with Rule 
18f-2 under the 1940 Act.
    7. The Contracts also permit premium payments to be deposited in a 
guaranteed interest division which is part of the general account of 
Lincoln Life or Lincoln Life of NY, and in one or more Subaccounts. 
During the accumulation period, each Company permits transfers of all 
or part of a Contract participant's account balance from the guaranteed 
interest division to a Subaccount, from any one Subaccount to another, 
or from any Subaccount to the guaranteed interest division.
    8. LNC Equity Sales Corporation serves as the distributor and 
principal underwriter of the Contracts and also may serve as the 
distributor and principal underwriter of Future Contracts. LNC Equity 
Sales Corporation is registered under the Securities Exchange Act of 
1934 as a broker-dealer and is a member of the National Association of 
Securities Dealers, Inc. LNC Equity Sales Corporation is an indirect 
wholly-owned subsidiary of Lincoln National Corporation.
    9. Broker-dealers other than LNC Equity Sales also may serve as 
distributors and principal underwriters of the Contracts and Future 
Contracts. Any such other broker-dealer (``Future Broker-Dealer'') will 
be registered under the Securities Exchange Act of 1934 as a broker-
dealer and will be a member of the National Association of Securities 
Dealers, Inc.
    10. Each Company deducts $25 (or the balance of a Contract 
participant's account, if less) per year from each Contract 
participant's account balance on the last business day of the month in 
which a participation anniversary occurs. The annual administration 
charge is deducted only during the accumulation period. Under 
prescribed circumstances, each Company may waive or reduce the annual 
administration charge under a Contract. In addition, a Contractowner 
may pay the annual administration charge on behalf of the participants 
under its Contract. Applicants represent that each Company deducts the 
annual administration charge in reliance on Rule 26a-1 under the 1940 
Act, and does not anticipate any profit from this charge.
    11. The Companies do not deduct a sales charge from premium 
payments made under Contracts, but do deduct a contingent deferred 
sales charge (``CDSC'') on certain full and partial withdrawals of 
account balance by participants in Group Variable Annuity I and Group 
Variable Annuity II contracts. The CDSC is designed to cover expenses 
relating to the sale of Contracts, including commissions and other 
promotional expenses. During the first six Contract years, the CDSC 
under a Group Variable Annuity I Contract is 5% of the gross withdrawal 
amount; the CDSC declines 1% each year thereafter until the charge is 
0% in the eleventh and subsequent years. The Companies may impose a 
CDSC of up to 6% of the gross withdrawal amount on certain total and 
partial withdrawals of the account balance of a Group Variable Annuity 
II Contract participant.
    12. Each Company will waive the CDSC under its Group Variable 
Annuity I and Group Variable Annuity II contracts if, at the time of 
the withdrawal request, the Company receives proof necessary to verify 
that: (a) the participant has attained the age of 59\1/2\; (b) the 
participant has died; (c) the participant has incurred a disability as 
defined under the Contract; (d) the participant has terminated 
employment with the employer (under the Group Variable Annuity II 
contracts the participant also must be at least 55 years of age). 
Contractowners of Group Variable Annuity I or Group Variable Annuity II 
contracts may identify other circumstances under which a CDSC may be 
waived--e.g., in the event of ``financial hardship.'' Contracts 
providing such additional benefits to participants may have a declared 
guaranteed interest rate in the guaranteed interest division which is 
lower than that for Contracts not providing such benefits.
    13. Each Company also may reduce or eliminate the CDSC under any 
Group Variable Annuity I or Group Annuity II contract on any withdrawal 
to the extent the Company anticipates that it will incur lower sales 
expenses or perform fewer sales services because of economies arising 
from (i) the size of the group covered under a Contract, (ii) an 
existing relationship with the Contractowner, (iii) the utilization of 
mass enrollment procedures, or (iv) the performance of sales functions 
by the Contractowner which the Company would otherwise be required to 
perform. Death benefit payments and amounts subject to annuitization 
are not subject to a CDSC. In no event will a CDSC, when added to any 
CDSC previously imposed as a result of a prior withdrawal, exceed 8.5% 
of the cumulative contributions to a Contract participant's account.
    14. Each Company imposes a daily charge to compensate it for 
bearing certain mortality and expense risks in connection with the 
Contracts. This charge is equal to an effective annual rate of 1.20% of 
the value of the net assets in each Account, and it will not increase. 
Of that amount, approximately.95% is attributable to mortality risks, 
and approximately .25% is attributable to expense risks.
    15. The mortality risk borne by each Company arises from its 
contractual obligation to make annuity payments regardless of how long 
all annuitants or any individual annuitant may live. The expense risk 
assumed by each Company is the risk that the Company's actual 
administrative costs will exceed the amount recovered through the 
annual administration charge. If the mortality and expense risk charge 
is insufficient to cover actual costs and assumed risks, the loss will 
fall on the Company. Conversely, if the charge is more than sufficient 
to cover costs, any excess will be profit to such Company. Each Company 
may realize a profit from the mortality and expense risk charges.
    16. Each Company also deducts a charge for the premium taxes paid 
on contributions to a Contract. Various states levy a premium tax 
charge currently ranging from .5% to 4% of premium payments on variable 
annuity contracts.
    17. If a Contract participant should die during the accumulation 
period, the Company will pay the greater of (a) net contributions or 
(b) the Contract participant's account balance less any outstanding 
loan. Although each Company incurs a risk in connection with this death 
benefit guarantee, there is no extra charge for this death benefit.

[[Page 47219]]

Applicants' Legal Analysis and Conditions

    1. Section 6(c) of the 1940 Act authorizes the SEC to grant an 
exemption from any provision, rule or regulation of the 1940 Act to the 
extent such exemption is necessary or appropriate in the public 
interest and consistent with the protection of investors and the 
purposes fairly intended by the policy and provisions of the 1940 Act 
to do so.
    2. Sections 26(a)(2)(c) and 27(c)(2) of the 1940 Act, in relevant 
part, prohibit a registered unit investment trust, its depositor or 
principal underwriter, from selling periodic payment plan certificates 
unless the proceeds of all payments, other than sales loads, are 
deposited with a qualified bank and are held under arrangements which 
prohibit any payment to the depositor or principal underwriter except a 
reasonable fee, as the SEC may prescribe, for performing bookkeeping 
and other administrative duties normally performed by the bank itself.
    3. Applicants seek an order under Section 6(c) of the 1940 Act 
granting exemptions from Sections 26(a)(2)(C) and 27(c)(2) of the 1940 
Act to the extent necessary to permit the deduction of a mortality and 
expenses risk charge from the assets of the Accounts and Future 
Accounts under the Contracts and Future Contracts. Applicants also seek 
exemptive relief for Future Broker-Dealers that may serve as 
distributors and/or principal underwriters for Contracts and Future 
Contracts.
    4. Applicants state that the terms of the relief requested with 
respect to any Future Contracts funded by the Accounts and Future 
Accounts are consistent with the standards set forth in Section 6(c) of 
the 1940 Act. Applicants represent that the Future Contracts will be 
materially similar to the Current Contracts. Applicants state that 
without the requested relief, each Company would have to request and 
obtain exemptive relief for the Accounts and Future Accounts to fund 
each Future Contract. Applicants assert that these additional requests 
for exemptive relief would present no issues under the 1940 Act not 
already addressed in this application, and the requested relief is 
appropriate in the public interest because the relief will promote 
competitiveness in the variable annuity market by eliminating the 
Applicants' need to file redundant exemptive applications, thereby 
reducing administrative expenses and maximizing efficient use of 
resources.
    5. Applicants represent that the 1.20% mortality and expense risk 
charge under the Contracts is reasonable in relation to the risks 
assumed by each Company under the Contracts, and is within the range of 
industry practice for comparable annuity contracts, based on a review 
of the publicly available information regarding products of other 
companies. Each Company represents that it will maintain at its 
principal offices, and make available upon request to the Commission or 
its staff, a memorandum detailing the variable annuity products 
analyzed, the methodology used in, and the results of, the comparative 
review.
    6. Each Company represents that, before issuing any Future 
Contracts, it will make the same determinations on the same basis as to 
the mortality and expense risk charges under such contracts, and will 
maintain at its principal offices, and will make available upon request 
to the Commission or its staff, a memorandum setting forth in detail 
the methodology used in making such determinations.
    7. Applicants acknowledge that the CDSC may be insufficient to 
cover all distribution costs, and that if a profit is realized from the 
mortality and expense risk charge, all or a portion of such profit may 
be offset by distribution expenses not reimbursed by the CDSC. 
Notwithstanding this, each Company has concluded that there is 
reasonable likelihood that the proposed distribution financing 
arrangement made with respect to the Contracts and Future Contracts 
will benefit the Accounts and Future Accounts, Contractowners and 
Future Contractowners, and Contract and Future Contract participants. 
The basis for such conclusion is set forth in a memorandum which will 
be maintained by the Company at its home office and will be available 
to the Commission or its staff upon request.
    8. Each Company represents that, before issuing Future Contracts, 
it will conclude that there is a reasonable likelihood that the 
distribution financing arrangements proposed for such contracts will 
benefit the Accounts and Future Accounts, Future Contractowners, and 
Future Contract participants. Each Company represents that it will 
maintain at its executive office, and will make available upon request 
to the Commission or its staff, a memorandum setting forth the basis 
for such conclusion.
    9. The Company also represents that the Accounts and Future 
Accounts will invest only in underlying investment companies which have 
undertaken to have a board of directors or a board of trustees, as 
applicable, a majority of whom are not '`interested persons'' of such 
Accounts and Future Accounts--within the meaning of Section 2(a)(19) of 
the 1940 Act, formulate and approve any plan under Rule 12b-1 under the 
1940 Act to finance distribution expenses.

Conclusion

    For the reasons set forth above, Applicants represent that the 
requested exemptions are necessary and appropriate in the public 
interest and consistent with the protection of investors and purposes 
fairly intended by the policy and provisions of the 1940 Act.

    For the Commission, by the Division of Investment Management, 
pursuant to delegated authority.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 96-22720 Filed 9-5-96; 8:45 am]
BILLING CODE 8010-01-M