[Federal Register Volume 64, Number 18 (Thursday, January 28, 1999)]
[Notices]
[Pages 4477-4479]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-1998]


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SECURITIES AND EXCHANGE COMMISSION

[Rel. No. IC- 23661; File No. 812-11456]


MBL Life Assurance Corporation, et al.; Notice of Application

January 22, 1999.
AGENCY: The Securities and Exchange Commission (``Commission'').

ACTION: Notice of application for an order pursuant to Section 26(b) of 
the Investment Company Act of 1940 (the ``1940 Act'') approving a 
substitution of securities, and pursuant to Section 17(b) of the 1940 
Act exempting related transactions from Section 17(a) of the 1940 Act.

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Summary of Application: Applicants request an order to permit certain 
registered unit investment trusts to substitute shares of the Dreyfus 
Life and Annuity Index Fund, operating as Dreyfus Stock Index Fund for 
the shares of MBL Growth Fund, Inc. currently held by those unit 
investments trusts, and to permit certain in-kind redemptions of 
portfolio securities in connection with the substitutions.

Applicants: MBL Life Assurance Corporation (``MBLLAC'') and MBL 
Variable Contract Account-2 (``VCA-2'') and MBL Variable Contract 
Account-3 (``VCA-3,'' together with VCA-2, the ``Separate Accounts'').

Filing Date: The application was filed on January 7, 1999.

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 February 12, 1999, and should be accompanied 
by proof of service on Applicants, in the form of an affidavit or, for 
lawyers, a certificate of service. Hearing requests should state the 
nature of the writer's interest, the reason for the request, and the 
issues contested. Persons may request notification of a hearing by 
writing to the Secretary of the Commission.

ADDRESSES: Secretary, Securities and Exchange Commission, 450 Fifth 
Street, N.W., Washington, D.C. 20549. Applicants, c/o Frank D. 
Casciano, Esq., Executive Vice President and General Counsel, MBL Life 
Assurance Corporation, 520 Broad Street, Newark, New Jersey 07102-3111; 
Copies to: Frank E. Morgan II, Esq., Dewey Ballantine LLP, 1301 Avenue 
of the Americas, New York, New York 10019.


[[Page 4478]]


FOR FURTHER INFORMATION CONTACT: Ethan D. Corey, Senior Counsel, at 
(202) 942-0675, or Kevin M. Kirchoff, Branch Chief, at (202) 942-0672, 
Office of Insurance Products, Division of Investment Management.

SUPPLEMENTAL INFORMTION: The following is a summary of the application, 
the complete application may be obtained for a fee from the Public 
Reference Branch of the Commission, 450 5th Street, N.W., Washington, 
D.C. 20549 (tel. (202) 942-8090).

Applicants' Representation

    1. MBL LIfe Assurance Corporation (``MBLLAC'') is a New Jersey 
stock life insurance company. MBLLAC serves as sponsor and depositor Of 
VCA-2 and VCA-3.
    2. MBLLAC's is currently operating under the terms of the Plan of 
Rehabilitation (``Plan'') approved by the Superior Court of New Jersey 
(``Rehabilitation Court'') for its former parent, Mutual Benefit Life 
Insurance Company in Rehabilitation (``MBL''). Pursuant to the terms of 
the Plan, on April 29, 1994, MBL assigned to MBLLAC and MBLLAC assumed 
from MBL, substantially all of MBL's assets and insurance liabilities. 
MBLLAC will operate under the terms of the Plan until June 30, 1999 
(the expiration date of the rehabilitation period). Upon the 
termination of the Plan, the Separate Accounts are expected to be 
liquidated and certain contracts, as decribed below, will be terminated 
(the ``Termination'').
    3. Each of the Separate Accounts is registered with the Commission 
as a unit investment trust. VCA-2 serves as the funding medium for 
certain group variable annuity contracts (the ``Group Contracts''). 
VCA-3 serves as the funding medium for certain individual variable 
annuity contracts (the ``Individual Contracts,'' together with the 
Group Contracts, the ``Contracts''). VCA-3 has not accepted new or 
additional contributions since July 16, 1991. Each Separate Account 
invests exclusively in shares of the MBL Growth Fund, Inc. (``MBL 
Fund'').
    4. MBL Fund is a open-end diversified management investment company 
incorporated under Maryland law and registered with the Commission 
under the 1940 Act. Shares of MBL Fund are registered with the 
Commission under the Securities Act of 1933 (the ``1933 Act''). MBL 
Fund's primary investment objective is long-term appreciation of 
capital. It seeks to achieve this objective through investment 
primarily in equity-type securities including common stocks, as well as 
securities convertible into, or exchangeable for, common stocks. Shares 
of MBL Fund are currently sold only to separate accounts of MBLLAC to 
fund variable annuity contracts. The investment adviser to MBL Fund is 
Markston Investment Management (``Markston''), a partnership between 
Markston International, Inc. and MBL Sales Corporation, an indirect 
subsidiary of MBLLAC. Markston is a registered investment adviser under 
the Investment Advisers Act of 1940.
    5. In accordance with the terms of the Plan, MBLLAC will operate 
under the terms of the Plan until June 30, 1999 (the expiration date of 
the rehabilitation period). Pursuant to the Plan (as amended by the 
Rehabilitation Court in November 1998) on or before the effective date 
of the Termination (the ``Termination Date''), MBLLAC and the Separate 
Accounts will be liquidated and the Contracts will be terminated.
    6. The Contracts expressly reserve to MBLLAC the right, subject to 
either: (a) a vote of holders of the Contracts (``Contractholders''); 
or (b) compliance with the 1940 Act, to substitute shares of another 
open-end management investment company for shares of MBL Fund held by 
the appropriate Separate Account.
    7. MBLLAC, on its own behalf and on behalf of the Separate 
Accounts, proposes to substitute shares of Dreyfus Life and Annuity 
Index Fund, operating as Dreyfus Stock Index Fund (``Index Fund''), an 
open-end, non-diversified, management investment company for shares of 
MBL Fund currently held by the Separate Accounts (the 
``Substitution''). Applicants assert that the Substitution will benefit 
the Contract owners and the Separate Account because it is intended to: 
(a) ensure that the interests of Contractholders in the Separate 
Accounts will at all times until the Termination Date be sufficiently 
liquid such that the Separate Accounts are able to honor and comply 
with any and all requests for transfer or redemption by Contractholders 
of their contract or account values (the ``Account Values''), within 
the terms and provisions of the 1940 Act; (b) maintain the Separate 
Accounts' investment objectives prior to the Termination; and (c) 
provide for the final payout to the remaining Contractholders in 
connection with the Termination.
    8. The investment objective of the Index Fund is to provide 
investment results that correspond to the price and yield performance 
of publicly traded common stocks in the aggregate, as represented by 
the Standard & Poor's 500 Composite Stock Price Index. Applicants 
assert that the investment objectives and policies of the MBL Fund are 
sufficiently similar to the investment objectives and policies of the 
Index Fund such that the Index Fund will provide a comparable 
investment strategy and level of risk exposure to that of the Fund, 
which will serve the interests of Contractholders.
    9. The total expenses of the Index Fund currently are 0.26%. The 
total expenses of the MBL Fund are 0.77%. The total return of the Index 
Fund has been 8.7%, 22.2%, and 19.4% for the one, three and five year 
periods ending September 30, 1998. The total return of the MBL Fund has 
been 8.7%, 25.3% and 19.8% for the last one, three and five year 
periods. As of September 30, 1998, the Index Fund had $2,606,084,554 in 
net assets, compared to $58,520,509 for the MBL Fund.
    10. On August 6, 1998, MBLLAC notified Contractholders in VCA-2 and 
VCA-3 that MBLLAC planned to terminate the Contracts and to liquidate 
the Separate Account on the Termination Date.
    11. MBLLAC asserts that it will effect the Substitution as soon as 
practicable following the issuance of the requested order so as to 
maximize the liquidity benefits to be realized from the Substitution.
    12. Within five days after the Substitution, MBLLAC will send to 
Contractholders written notice of the Substitution (the ``Substitution 
Notice'') which will identify the shares of MBL Fund that have been 
eliminated and the shares of the Index Fund that have been substituted. 
In addition, if a propsectus relating to the Index Fund has not already 
been forwarded to Contractholders, the Substitution Notice will be 
accompanied by such a prospectus. Contractholders will be advised in 
the Substitution Notice that Contracts which remain with MBLLAC at the 
Termination Date are subject to termination, and the associated Account 
Value will be paid as required by law and the Plan (as amended).
    13. The Substitution will not result in any change to the Contract 
fees and charges currently being paid by existing Contract owners.

Applicants' Legal Analysis and Conditions

    1. Section 26(b) of the 1940 Act provides that it shall be unlawful 
for any depositor or trustee of a registered unit investment trust 
holding the security of a single issuer to substitute another security 
for such security unless the Commission shall have approved such 
substitution; and the Commission shall issue an order approving such

[[Page 4479]]

substitution if the evidence establishes that it is consistent with the 
protection of investors and the purposes fairly intended by the 
policies and provisions of the 1940 Act. Section 26(b) protects the 
expectation of investors that the unit investment trust will accumulate 
shares of a particular issuer and is intended to insure that 
unnecessary or burdensome sales loads, additional reinvestment costs or 
other charges will not be incurred due to unapproved substitutions of 
securities.
    2. Applicants request an order pursuant to Section 26(b) of the 
1940 Act approving the Substitution. Applicants represent that the 
purposes, terms, and conditions of the Substitution are consistent with 
the protection for which Section 26(b) was designed. Applicants believe 
the Substitution will benefit Contractholders because funds in the 
Separate Accounts would immediately become invested in a larger and 
more diverse pool of securities than those in which they are currently 
invested, thereby assuring liquidity. In addition, Applicants assert 
that the Index Fund provides an investment strategy and level of risk 
exposure that are comparable to those the MBL Fund. Applicants further 
assert that the Substitution is consistent with the protection of 
investors and the purposes fairly intended by the policy and provisions 
of the 1940 Act because the Substitution is an appropriate interim step 
in connection with the withdrawal of MBL Fund as an investment option 
under the Contracts and the proposed termination of the Contracts.
    3. Applicants represent that the Contractholders have the right, at 
any time, both before and after the Substitution Date and prior to the 
Termination Date, to transfer Account Values from the Separate Accounts 
to any other separate account which funds similar contracts without 
incurring any additional fees or charges with respect to such transfer 
at any time. Applicants represent that the Substitution will in no way 
alter or interfere with this right.
    4. Applicants assert that, following the Substitution and until the 
Termination Date, Contractholders will be afforded the same contract 
rights, including surrender and other transfer rights with regard to 
amounts invested under the Contracts, as they currently have. MBLLAC 
will bear the cost of the Substitution, including any brokerage, legal 
and/or accounting fees. Contractholders will not incur any additional 
fees or charges as a result of the Substitution, nor will their rights 
or the obligations under any of the Contracts diminish in any way. The 
Substitution will not result in any adverse tax consequences to any 
Contractholder, any change in the economic interest or Account Value of 
any Contractholder or any change in the dollar value of any Contract 
held by a Contractholder.
    5. Section 17(a)(1) of the 1940 Act prohibits any affiliated person 
or an affiliate of an affiliated person, of a registered investment 
company, from selling any security or other property to such registered 
investment company. Section 17(a)(2) of the 1940 Act prohibits such 
affiliated persons from purchasing any security or other property from 
such registered investment company.
    6. Section 17(b) of the 1940 Act authorizes the Commission to issue 
an order exempting a proposed transaction from Section 17(a) if: (a) 
the terms of the proposed transaction are fair and reasonable and do 
not involve overreaching on the part of any person concerned; (b) the 
proposed transaction is consistent with the policy of each registered 
investment company concerned; and (c) the proposed transaction is 
consistent with the general purposes of the 1940 Act.
    7. Applicants request an order pursuant to Section 17(b) of the 
1940 Act exempting them from the provisions of Section 17(a) to the 
extent necessary to use a portion of the securities received in-kind by 
the Separate Accounts (the ``Accepted Underlying Securities'') from MBL 
Fund to purchase shares of the Index Fund (the ``In Kind 
Transactions'').
    8. Applicants assert that the proposed In Kind Transactions, 
including the consideration to be paid and received, are reasonable and 
fair and do not involve overreaching on the part of any person 
concerned. As part of the In Kind Transactions, MBLLAC on behalf of the 
Separate Accounts, will seek to simultaneously place redemption 
requests with MBL Fund and purchase shares of the Index Fund so that 
purchases will be for the exact amount of the redemption proceeds. The 
In Kind Transactions will not effect an appreciable economic change on 
the Contractholders. MBLLAC, on behalf of the Separate Accounts, will 
effect the redemption in-kind and the transfer of the Accepted 
Underlying Securities in a manner that is consistent with the 
investment objectives and policies and diversification requirements 
applicable to the Index Fund. MBLLC, on behalf of the Separate 
Accounts, will take appropriate steps to assure that the Accepted 
Underlying Securities are suitable investments for the Index Fund.
    9. Applicants assert that the Substitution is consistent with the 
general purposes of the 1940 Act and that the In Kind Transactions do 
not present any of the conditions or abuses that the 1940 Act was 
designed to prevent.

Conclusion

    Applicants assert that, for the reasons summarized above, the 
requested order approving the Substitution and In Kind Transactions 
should be granted.

    For the Commission, by the Division of Investment Management, 
pursuant to delegated authority.
Jonathan G. Katz,
Secretary.
[FR Doc. 99-1998 Filed 1-27-99; 8:45 am]
BILLING CODE 8010-01-M