Securities Lawyer's Deskbook                          published by The University of Cincinnati College of Law

Rule 151 -- Safe Harbor Definition of Certain "Annuity Contracts or Optional Annuity Contracts" Within the Meaning of Section 3(a)(8)

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1. Any annuity contract or optional annuity contract (a "contract") shall be deemed to be within the provisions of section 3(a)(8) of the Securities Act of 1933, Provided, That
   1. The annuity or optional annuity contract is issued by a corporation (the "insurer") subject to the supervision of the insurance commissioner, bank commissioner, or any agency or officer performing like functions, of any State or Territory of the United States or the District of Columbia;

   2. The insurer assumes the investment risk under the contract as prescribed in paragraph (b) of this rule; and

   3. The contract is not marketed primarily as an investment.

2. The insurer shall be deemed to assume the investment risk under the contract if:
   1. The value of the contract does not vary according to the investment experience of a separate account;

   2. The insurer for the life of the contract
      1. Guarantees the principal amount of purchase payments and interest credited thereto, less any deduction (without regard to its timing) for sales, administrative or other expenses or charges; and

      2. Credits a specified rate of interest (as defined in paragraph (c) of this rule) to net purchase payments and interest credited thereto; and

   3. The insurer guarantees that the rate of any interest to be credited in excess of that described in paragraph (b)(2)(ii) will not be modified more frequently than once per year.

3. The term "specified rate of interest," as used in paragraph (b)(2)(ii) of this rule, means a rate of interest under the contract that is at least equal to the minimum rate required to be credited by the relevant nonforfeiture law in the jurisdiction in which the contract is issued. If that jurisdiction does not have an applicable nonforfeiture law at the time the contract is issued (or if the minimum rate applicable to an existing contract is no longer mandated in that jurisdiction), the specified rate under the contract must at least be equal to the minimum rate then required for individual annuity contracts by the NAIC Standard Nonforfeiture Law.

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