CHAPTER 123

FORMERLY SENATE BILL NO. 179

AS AMENDED BY SENATE AMENDMENT NO. 1

AN ACT TO AMEND TITLE 18, CHAPTERS 13 AND 29 OF THE DELAWARE CODE, RELATING TO THE ESTABLISHMENT OF SEPARATE ACCOUNTS BY DOMESTIC LIFE INSURERS FOR AMOUNTS PAID TO SUCH INSURERS TO PROVIDE LIFE INSURANCE OR ANNUITY BENEFITS PAYABLE IN FIXED OR VARIABLE DOLLAR AMOUNTS, OR BOTH.

Be it enacted by the General Assembly of the State of Delaware:

WHEREAS, it is the intent and purpose of the General Assembly of the State through this Act to permit Delaware residents to have the opportunity to purchase variable life insurance contracts which contracts provide benefits payable in variable amounts base on investment experience. Such opportunity to increase the range of products available to life insurance purchasers is deemed to be in the best interest of the state; and

WHEREAS, the present Delaware Insurance Code does permit the sale of variable annuities, but does not have adequate legislation to permit the sale of variable life contracts, or sufficient legislation to comply with federal regulation on the broad scope of variable life and variable annuity products; and

WHEREAS, the concept and availability of variable annuities and variable life products has become of increasing concern and popularity to the public, and such products are permitted in other states; and

WHEREAS, the Security and Exchange Commission is presently considering guidelines to permit the sale and regulate variable life products to the extent of its jurisdiction; and

WHEREAS, in order to provide a full range of variable life products to our residents.

NOW, THEREFORE,

Be it enacted by the General Assembly of the State of Delaware:

Section 1. Amend Title 18, Chapter 13, Section 1322 by repealing said section in its entirety.

Section 2. Amend Chapter 29, Title 18, Section 2933 by striking said section in its entirety and substituting in lieu thereof a new § 2933 to read as follows:

§ 2933. Variable contract law

(a) A domestic life insurer, including for the purposes of this Section all domestic fraternal beneficiary associations, societies or companies which operate on a legal reserve basis, may establish one or more separate accounts, and may allocate thereto amounts (including without limitation proceeds applied under optional modes of settlement or under dividend options) to provide for life insurance or annuities (and benefits incidental thereto), payable in fixed or variable amounts or both, subject to the following:

(1) The income, gains and losses, realized or unrealized, from assets allocated to a separate account shall be credited to or charged against the account, without regard to other income, gains or losses of the insurer.

(2) Except as may be provided with respect to reserves for guaranteed benefits and funds referred to in paragraph (3) of this subsection (i) amounts allocated to any separate account and accumulations thereon may be invested and reinvested without regard to any requirements or limitations prescribed by this title governing the investments of life insurers and (ii) the investments in such separate account or accounts shall not be taken into account in applying the investment limitations otherwise applicable to the investments of the insurer.

(3) Except with the approval of the Commissioner and under such conditions as to investments and other matters as he may prescribe, which shall recognize the guaranteed nature of the benefits provided, reserves for (i) benefits guaranteed as to dollar amount and duration and (ii) funds guaranteed as to principal

amount or stated rate of interest shall not be maintained in a separate account.

(4) Unless otherwise approved by the Commissioner, assets allocated to a separate account shall be valued at their market value on the date of valuation, or if there is no readily available market, then as provided under the terms of the contract or the rules or other written agreement applicable to such separate account; provided, that unless otherwise approved by the Commissioner, the portion if any of the assets of such separate account equal to the insurer's reserve liability with regard to the guaranteed benefits and funds referred to in paragraph (3) of this subsection shall be valued in accordance with the rules otherwise applicable to the insurer's assets.

(0) Amounts allocated to a separate account in the exercise of the power granted by this Act shall be owned by the insurer, and the insurer shall not be, nor hold itself out to be, a trustee with respect to such amounts. If and to the extent so provided under the applicable contracts, that portion of the assets of any such separate account equal to the reserves and other contract liabilities with respect to such account shall not be chargeable with liabilities arising out of any other business the insurer may conduct.

(1) No sale, exchange or other transfer of assets may be made by an insurer between any of its separate accounts or between any other investment account and one or more of its separate accounts unless, in case of a transfer into a separate account, such transfer is made, solely to establish the account or to support the operation of the contracts with respect to the separate account to which the transfer is made, and unless such transfer, whether into or from a separate account, is made (i) by a transfer of cash, or (ii) by a transfer of securities having a readily determinable market value, provided that such transfer of securities is approved by the Commissioner. The Commissioner may approve other transfers among such accounts if, in his opinion, such transfers would not be inequitable.

(2) To the extent such insurer deems it necessary to comply with any applicable federal or state laws such insurer, with respect to any separate account, including without limitation any separate account which is a management investment company or a unit

investment trust, may provide for persons having an interest therein appropriate voting and other rights and special procedures for the conduct of the business of such account, including without limitation special rights and procedures relating to investment policy, investment advisory services, selection of independent public accountants, and the selection of a committee, the members of which need not be otherwise affiliated with such insurer, to manage the business of such account.

(b) Any contract providing benefits payable in variable amounts delivered or issued for delivery in this State shall contain a statement of the essential features of the procedures to be followed by the insurer in determining the dollar amount of such variable benefits. Any such contract under which the benefits vary to reflect investment experience, including a group contract and any certificate in evidence of variable benefits issued thereunder, shall state that such dollar amount will so vary and shall contain on its first page a statement to the effect that the benefits thereunder are on a variable basis.

(c) No insurer shall deliver or issue for delivery within this State variable contracts unless it is licensed or organized to do a life insurance or annuity business in this State, and the Commissioner is satisfied that its condition or method of operation in connection with the issuance of such contracts will not render its operation hazardous to the public or its policyholders in this State. In this connection, the Commissioner shall consider among other things:

(1) The history and financial condition of the insurer;

(2) The character, responsibility and fitness of the officers and directors of the insurer; and

(3) The law and regulation under which the insurer is authorized in the state of domicile to issue variable contracts. If the insurer is a subsidiary of an admitted life insurer, or affiliated with such insurer through common management or ownership, it may be deemed by the Commissioner to have met the provisions of this subsection if either it or the parent or the affiliated insurer meets the requirements hereof.

(d) Notwithstanding any other provision of law, the Commissioner shall have sole authority to regulate the issuance and sale

of variable contracts, and to issue such reasonable rules and regulations as may be appropriate to carry out the purposes and provisions of this Act.

(e) Except for sections 2919, 2924 and 2925 of this title in the case of a variable annuity contract and sections 2906, 2911, 2912, 2913, 2929 and 3112 of this title in the case of a variable life insurance policy and except as otherwise provided in this Act, all pertinent provisions of this title shall apply to separate accounts and contracts relating thereto. Any individual variable life insurance contract, delivered or issued for delivery in this State shall contain grace, reinstatement and non-forfeiture provisions appropriate to such a contract. Any individual variable annuity contract, delivered or issued for delivery in this State shall contain grace and reinstatement provisions appropriate to such a contract. Any group variable life insurance contract, delivered or issued for delivery in this State shall contain a grace provision appropriate to such a contract. The reserve liability for variable contracts shall be established in accordance with actuarial procedures that recognize the variable nature of the benefits provided and any mortality guarantees.

Approved June 12, 1971.