SEC Division of Investment Management staff letter: Equitable Life Assurance Society

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. ~J.:.,,1it.V\ ~V.le The Equitable Life Assurance . - ....:~-~:.:.,::,',...... "'.,,,- ~. . "-,...._.,-,"....~~.,,"....,~.,._",. Society of the United States REPONSE OF THE OFFICE OF Equitable Varable Life Insurance INSURCE PRODUCTS Company' DIVISION OF INVESTMENT MANAGEMNT Equico Securities. Inc. By letters dated Decmber 29, 1995, and Decmber 6, 1996, you seek assurace that the sta af the Division of Investment Management wil not recommend enforcement action to the Commission agâist The Equitable Life Assurace Society of the Uïited States ("Equitable"), Equitable Varable Life Insurace Company ("Equitable Varable"), or Equico Securities, Inc. ("Equico") under Section 5 of the Securities Act of 1933, as amended (the "1933 Act"), and Rule 145 thereunder, or Sections 8 and 11 of the Investment Company Act of 1940, as amended (the "1940 Act"), if Equitable succees to the position of depositor of cert separte accounts of Equitable Varable (the "Separte Accounts") in connection with

the merger of Equitable Varable with and into its parent, Equitable (the "Merger"). You also request assurace that the staf wil not recommend enforcement action to the

Commission if: (1) the change in the depositor for the Separte Accounts as a result of the Merger is reflected through the filg of amendments to the registration statements on Form

N-8R-2 under the 1940 Act for the Separte Accounts; and (2) new registration statements on Form S-6 under the 1933 Act are fued by Equitable and the Separte Accounts to cover any securities trasactions effectèd under the varable lie insurance policies funded by the Separate Accounts ("Policies") after the Merger. You further request assurance that the staff wil not recommend enforcement action to the Commission against Equitable and the Separte Accounts if, afer consummation of the Merger, they continue to rely on the exemptive orders cited in your December 6, 1996 letter and obtaed on behal of Equit~ib1e Varable, the Separte Accounts, and any other paries named therein, without filg amended or new applications for the-' same relief previously grated by the Commission.

You state that Equitable and Ecûítable Varable are New York stock lie insurace compaïies, and are currently authori to sell insurace and anuities in al fifty states, the District of Columbia, PUerto Rico, and the Virgin Islands. Equitable Varable is a wholly owned subsidiar of Equitable. You further state that Equitable Varable is the depositor of the Separte Accounts, which are registered as unit investment trusts under the 1940 Act on Form N-8B-2. Interests in the Separte Accounts are registere under the 1933 Act on Form S-6. You represent that Equitable Varable established the Separte Accounts to fund the Policies. £:
In addition, you represent that Equico is the pricipal underwriter of the Separte Accounts, and distributes the Policies that ar currently being offeredJor sale. Equico is registered as a broker-dealer under the Securities Exchange Act of 1934. '

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In your letters, you explain that, on January 1, 199-7, Equitable Variable wil be

merged with and into Equitable, with Equitable as the surviving entity. As a consequence of

the Merger, Equitable wil be the legal owner of all of the assets of Equitable Variable,

including the Separate Accounts. You state that the Merger has been approved by the Boards

of Directors and shareholders of both Equitable and Equitable Varable and by the New York

Deparment of Insurace.
Based on the facts and representations in your letters, and without necssay agreeing with. your legal.analysis, we would not recommend enforcement action to the Commissiori agaist Equitable, Equitable Varable, or Equico under Section 5 of the 1933

Act and Rule 145 thereunder or Sections 8 and 11 of the 1940 Act if Equitable succees to the position of depositor of the Separte Accounts in connection with the proposed Merger. In addition, we.would.not recommend enforcement action to the Commission if: (1) the change in the depositor for the Separte Accounts as a, result of the Merger is reflected through the filg ofamendmeiits to the registration statements on Form N-8B-2 under the

1940 Act for the Separte Accounts; and (2) new registratiot1 statements on Form S-6 under the 1933 Act are fied by Equitable and the Separte Accounts to cover any securities trasactions effected under the Policies afer the. Merger. We also would not recommend enforcement actio'n to the Commission agaist Equitable or the Separte Accounts if, afer consummation of the Merger, they continue to

rely on the exemptive orders cited in your December 6, 1996 letter and obtaed on behal of Equitable Varabiè, the Separte Accounts, and any other paries named therein, without

filng amended or new applications for the same relief previously grated by the

Commission.

Our position is based paricularly on your representations that: (1) the succession of

Equitable to the position of depositor of the Separte Accounts and issuer of the Policies wil

not result in the offer or sale of any new or diferent security or Ii the creation of a new or , diferent investment company issuer; (2) 'Equitable and the Separte Accunts wil fie

amendments to the existing registration statement~ of the Separte Accounts on Form N-8B-2

under the 1940 Act to reflect the changè'in legal ownership of the ,assets of the Separte

Accounts as a result of the Merger; (3) Equitable and the Separte Accounts wil fue new

registration statements on Form S-6 under the 1933 Act, which wil become effective on or

about the effective date of the Merger, so that registration statements wil be ,effective for

any securities trasactions effected under the
Policies afer tht1 Merger; and (4) the owners of the Policies wil receive a prospectus that describes the Merger. t; ..

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B~ause our position is based on the facts and representations in your letter, you should note that different facts or representations may require a different conclusion. Further, this response expresses the Division's position on enforcement action only, and does not purport to express any legal conclusions on the issues presented. ~i(~. Pamela K. Ells

Senior Counsel
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Betlt N. Zeiger
Counsel
(212) 554,3607
Fa:,,: (212) 554-1266
IA W DEPARTMEN EQUITABLE
December 6, 1996
"ec \1. ,0\ P

Pamela K. Ells, Esq. .
\d\ cqq~
Offce of Insurance Products
Room 10159, Mail Stop 8-1
Division oflnvestment Management
Securities and Exchange Commssion
Fifth Street, N.W.

Washington, D.C. 20549

Re: The Equitable Life Assurance Society of the United States (UEquitable ''), Equitable Variable Life Insurance Company (UEquitable Variable'') and EQ Financial Consultants, Inc. (formerlv Equico Securities, Inc.) Dear Ms. Ells:
This letter is in response to the telephone conversation you had with Thomas C. Lauerman of Freedman, Levy, Kroll & Simonds on Tuesday, November 26, 1996, during which you advised Mr. Lauerman of the staffs cOmnents with respect to the above- , ,

captioned no-action request dated December 29, 1995. Captioned terms in this letter have the same meanings as in the December 1995 Letter. The following responses and

additional information supplements and/or supersedes, as applicable, the information contained in the December 1995 Letter. You requested further explanation of the affliation between The Hudson River Trust and Equitable. Alliance Capital Management L.P., the Tru-st's investment adviser, is indirectly majority-owned by Equitable. A statement to this effect was included in the December 1995-Letter in the first paragraph on page 3. Moreover, separate accounts of Equitable and Equitable Variable were the record owners of approximately 99.6% of the Trust's shares as of March 31, 1996; EQ Financial Consultants, Inc., the Trust's distributor, is a wholly-owned subsidiary of Equitable; and certain directors and offcers of the Trust are also directors and/or offcers of Equitable and its affliated cömpanies. You have asked for an update on the status of the approvals necessary to consummate the Merger. The Merger is scheduled to occur on January I, 1997. The Merger was approved by the Executive Commttees of the Boards of Directors of t- Equitable and Equitable Variable on August 14, 1996, and such approval was ratified by the respective Boards on September 19, 1996 and September 20, 1996, respectively. The Merger was approved by votes of shareholders of both. Equitable and Equitable Variable on September 19, 1996. The Merger was approved by the New York Department of Insurance on September 27, 1996. No other approvals, regulatory or other, are required

THE EQUITABLE LIFE ASSURACE SOClElY 787 7TH AVENUE, NEW YORK, NEW YORK 10019

':~'7 to consummate the Merger. The paries fully intend to consummate the Merger and are aware of nothig at this time that would prevent such consummation.
3. You have asked us to update the
list of orders cited in footnote no. 12 of the December 1995 Letter. We have reviewed the orders listed in footnote no. 12.1 Based òn several factors, including the recent changes to Sections 26 and 27 of the 1940 Act, we the orders listed in footnote no. 12. We continue, however, to desire the requested no-action relief for the following orders:

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amend our request to omit reliance on several of

file No. 812-6159, ReI. No. 14860 (Dec. 18, 1985) (notice) and ReI. No. IC-14899 (Jan. 14, 1986) (order) ReI. (mied and shared fuding relief)~ File No. 812-5739, ReI. No. IC-13868 (Apr. 5, 1984) (notice) and

No. IC-13931 (May 8, 1984) (order) (contingent deferred saes load relieffor The Champion policy)~ File No. 812-5475, ReI. No. IC-13402 (Jul. 26, 1983)(notice) and ReI. No. IC-13443 (Aug. 18, 1983) (order) (contingent deferred sales load relieffor the SP-i'policy). staff does not intend to entertain any further requests "for no..action relief under Sections 17 (a) and 17 (d) of the 1940 Act in situations where separate accounts are being transferred in connection with an insurance company merger I' unless novel circumstances are presented,.2 Accordingly, we withdraw our request in the December 1995 Letter that the staff not recommend any enforcement action in connection with the transactions described in the December 1995 Letter with respect to Section 17 of
4. You advised us that the

the 1940 Act. 3
.Please call either the undersigned at (212) 554-3607 or Thomas C. Lauerman at you have any questions or require further information. Thank you for you assistance with respect to this matter. Freedinan,Levy, Kroll & Simonds at (202) 457-5106 if

Very truly yours,
Beth N. Zeiger

/3~ cc: . Thomas C. Lauerman

Mary P. Breen
47374 l.'
.. i There have been no additional orders obtaned since the date of the Dece¡nber 1995 Letter.

2 See Metropolita Life Ins. Co., pub. avail. May 17, 1996, at footnote 1.

3 We also acknowledge thatthe correct date of the Merrll Lynch Life Insurance Company nö-action letter cited in footnote no. 11 to the December 1995 Letter is September 26, 1991. .

/e.,i~ r 31 11Q(/

Mary P. Breen i'ice President and Coimsel

(212) 554-3841
Fax: (212) 554-1117 TIE

EQUITABLE LAW DEPARTMENT

1933 Act Section 5
Rule 145

1940 Act Section 8
Section 11

Section 17

December 29, 1995
Ms. BrendaD. Sneed

Assistant Director
Offce ofInsurance Products

and Legal Compliance
Room 10 162, Stop 10-6
Division of
Investment Management
Securities and Exchange Commssion
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: The Equitable Life Assurance Society of the United States, Equitable Variable Life Insurance Company and Equico Securites. Inc. Dear Ms. Sneed:

I am wrting on behalf of The Equitable Life Assurance Society øf the United States

C'Equitable"), Equitable Variable Life Insurance Company ("Equitable Varable") and Equico Securities, Inc. ("Equico") to request that the staf advise us that it would not recommend . enforcement action to the Securities and Exchange Commssion (the "Commssion") under
Section 5 of the Securities Act of 1933 (the "Securities. Act") and Rule 145 thereunder, and
Sections 8, 11 and 17 of the Investment Company Act of i 940 (the "1940 Act"), in connection Equitable Variable with and into its parent, Equitable (the "Merger"), as set forth more fully below. The staff has, in the past, responded favorably to no-action requests seeking t, with a merger of

relief from thes.e provisions of the Securities Act and 1940 Act for similar transactions.

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1 See, e.g., Allegiance Life Insurance Company Separate Account A (pub. avaiL. July 31, 1990)~ Mass Life Insurance Company of New York (pub. avaiL. Nov. 14, 1989)~ Anchor Natianal Life Insurance Company (pub.

avaiL. Nov. 8, 1989)~ Lincoln National Pension Insurance Company (pub. avaiL. Dec. 29, 1988)~ Provident Mutual

Variable Life Insurance Company (pub. avaiL. Feb. 2, 1987); JejJrsonNational Life Insurance Company (pub.

THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNIT-ED STATES 787 SEVENTH AVENUE, NEW YORK, NEW YORK 10019

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i. Background

the United States A. The Equitable Life Assurance Society of

Equitable is a stock life insurance company organed under the laws of the State of New York and has been in continuous operation since 1859. Equitable is currently authorized to sell , insurance and annuities in all fift states, the District of Columbia, Puerto Rico a.nd the Virgin Islands. Equitable is a wholly-owned subsidiary of The Equitable Companies Incorporated. As of

June 30, 1995, Equitable had assets in excess of$lOO bilion.
B. Equitable Variable Life Insurance Company

Equitable Variable is a stock life insurance company organized under the laws of the state of New York in 1972. Equitable Variable is authorized to sell insurance and annuities in all 50

state~, the District of Columbia, Puerto Rico and the. Virgin Islands. Equitable Variable is a

wholly-owned subsidiary of Equitable. As of June 30, 1995, Equitable Variable had assets in

excess of $13 billon.

Equitable Variable is the depositor of Separate Account land Separate Account FP (the "Separate Accounts"), which are registered as unit investment trusts under the 1940 Act on Form

N-8B-2.2 The Separate Accounts were established pursuant to New York Insurance Law3 to

fund variable life insurance policies issued by Equitable Variable (the "Policies"). Interests in the

Separate Accounts are registered under the Securities Act on Form S-6.4 As of June 30, 1995,

the Separate Accounts had net assets of nearly $4.bilion.

avaiL. Oct. 9, 1986); American General Life Insurance of Delaware (pub. avaiL. Mar. 13, 1986); and Voyager Life

Insurance Company (pub. avaiL. Jan. 10, 1986).

2 File Nos. 811-2581 (Separate Account I) and 811-4335 (Separate Account FP). The term "depositot' with

respect to a unt investment tr (UT) is defined to include the person primanly responsible for the organzation

of the UI and the person who has continuing fuctions or responsibilties with respect to the admnistation and afairs of the UI other than as trtee or cusodian. See, Form N-8B-2.

3 Separate Account I was established on June 28, 1973, and Separate Account FP was estblished on April 19,
1985. .t.,.
4 File Nos. 2-54015, 2-98590; 33-40590, 33-8237, 33-38594, 33-47928 and 33-83948. 'Equitable Vanabl~ also

may have additional registration statements effective sometime next yea relating to new form of Policies. Other

than the Separate Accounts, Equitable Vanable has no separate accounts that àre registered under the 1940 Act.

Nor does Equitable Vanable or any of its separte accounts have any Securties Act registration statement on fie with the Commssion, except as described herein.

Ms. Brenda D. Snee

Divisions of the Separate Accounts invest solely in the shares of corresponding portfolios of The Hudson River Trust C'the Trust"). The Trust is an open-end management investment

company for which a Form N1-A registration statement is currently effective.s The Trust is a "series" fund. which is, currently divided into thirteen separate portfolios. Alance Capital Management L.P. ("Alliance") serves as investment adviser to the Trust. Alliance is indirectly majority-owned by Equitable.
C. Equico Securities, Inc.

Equico is the principal underwter of the Separate Accounts and, pursuant to an agreement with Equitable and Equitable Variable, distributes the Policies that are currently being offered for sale. Equico was organized under the laws .ofthe State of Delaware in 1971. Equico is registered as a broker-dealer under the Securities Exchange Act of 1934.6
II. The Proposed Transactions

Equitable and Equitable Variable have under consideration entering into an agreement and plan of merger .(the "Merger Agreement") under which, pursuant to applicable state law, Equitable Variable would be merged with and into Equitable. with Equitable as the survving corporation.. Upon consummation of the Merger, which would be expected to occur on or about January 1, 1997, Equitable Variable's separate corporate existence would cease by operation of law and the business conducted by Equitable Variable would thereafter be conducted by

Equitable. As a consequence of the Merger, Equitable would be the legal owner of all of the . assets of Equitable Variable, including the Separate Accounts. Equitable would also become responsible for all of Equitable Variable's liabilities and obligations, including those created under the Policies outstanding at the time of the Merger. Section 7112 of the New York Insurance Law provides:
"Upon the merger or consolidation of any companies in the manner herein provided. all the rights, franchises and interests of the constituent companies. in and to every species' of property, real, personal and mixed, and things in action thereunto 'belonging. shall be deemed as transferred to and vested in the survvig or consolidated company, without

any other deed or transfer, and simultaneously therewith such survving or consolidated company shall be deemed to have assumed all of the liabilties of the constituent companies. II N.Y. Insurance Law §7112 (McKinney 1985). k ., 5 File Nos. 2-94996 and 811-4185. 6 File No. 8-17883.

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Thus, in effect, the Policies would become varable life insurance policies funded by separate accounts of Equitable. The Separate Accounts would continue to receive additional payments made under the Policies to the extent allocated to the Separate Accouiits.7 Equitable also might continue to offer to new customers those Policies currently available for sale, and may in the future issue new forms of variable lie insurance policies that will be funded by the Separate Accounts. The Merger would have the effect of changing the ownership of Trust shares held by Equitable Varable, as depositor for the Separate Accounts, to Equitable, as the new depositor for the Separate Accounts. This change would not affect the respective net asset values of the Trust shares involved, and no charges will be imposed, or other deductions made, in connection therewith. The Merger would not affect any unit values of the Separate Account investment divisions investing in the Trust shares. All costs of the Merger would be borne by Equitable and Equitable Variable. The Merger Agreement would be subject to approval by the respective Boards of Directors of Equitable and Equitable Variable, as well as by their respective shareholders, in accordance with applicable state law. Prior approval of the Merger would also be obtained from the New York Department of Insurance and any other applicable regulatory authority. No vote or consent of owners of either Equitable Variable's policies or Equitable's contracts would be solicited with respect to the Merger because Equitable and Equitable Variable believe that under applicable state law no such vote would be required to consummate the Merger. The Merger would have no effect on the Separate Accounts, except for the change in the insurance company acting as depositor for the Separate Accounts. The assets and liabilities that comprise the Separate Accounts immediately before the Merger would remain intact, physically and legally segregated from any other business, including any -,other separate accounts, of Equitable after the Merger. The Separate Accounts would continue to maintain their separate status as unit investment trusts registered under the 1940 Act. 8 There would be no event affecting the Separate Accounts in connection with the Merger that would require a vote of the owners of the Policies under the 1940 Act. In sum, the Separate Accounts after the Merger would operate in the same manner as before the Merger. 7 Some of the Policies also permt premium to be allocated to a general account option. In reliance on Securties Act Section 3(a)(8), Equitable Vanable has not registered interests under such option. ,~, /. 8 The so-called "ectoplasm" theoiy of the natue of a separte account, in our view, support the position that the Separate..Accounts, as such, would have a continuing, unnterrpted existence, notwthstading the change of the

insance company servng as their depositor and having legal ownership of their assets. See L. Loss and J. Seligman, Securites Regulation, 1008-1011 (1989); Prudential Life Ins. Co. of Am.,~41 SEC 335, 340-341 (1963), afd sub. nom., Prudential Life Ins. Co. of Am. v. SEC, 326 F.2d 383 (3rd Cir. 1984), cert. denied, 377 U.S. 953 (1964).

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Moreover, except for the succession of Equitable to Equitable Variable's obligations and liabilties arising under, the then outstanding Policies, the Merger would not afect the provisions of, or rights and obligations under, the Policies; nor would the Merger afect the values determned under the Policies. None of the existing investment options would be substituted or termnated in connection with the merger. No payments would be required or charges imposed under the Policies in connection with, . or by vie of, the Merger that would not otherwse be

required or imposed had the Merger not occurred. In view of the foregoing, owners of the Policies would have no investment decision to make with respect to the Merger.
II. Discussion

As discussed more fully below, it is our view that with regard to the change in the depositor's identity pursuant to the Merger:
the Securities Act and Rule 145 thereunder would be inapplicable and (a) Section 5 of

no registration statements on Form N-14 would be required; the 1940 Act would be inapplicable; and (b) Sections 8, 11, 17(a) and 17(d) of

(c) any and all exemptive relief obtained before the Merger by Equitable Variable

and/or the Separate Accounts under the 1940 Act with respect to the Separate Accounts could continue to be relied upon by Equitable and the Separate Accounts, and the other parties thereto, without any need for the filing of an amended or duplicative exemptive application with the

Commssion.
A. Section 5 of the Securities Act and Rule 145 Thereunder Would be Inapplicable to the Change of the Separate Accounts' Depositor Pursuant to the Merger. It is our view that the succession of Equitable to the position of depositor of the Separate Accounts and issuer of the Policies would not result in the offer or sale of ány new or diferent security of in the creation of a new or different investment company issuer for purposes of the Securities Act or Rule 145. thereunder. The Separate Accounts would remain intact afer the Merger, and their assets would be legally segregated from all other assets,
Section 5 of

including any other separate accounts of
Equitable.
No change would be made to the Policies, except that, by operation of law, Equitable l. would succeed Equitable Variable as the issuer of the Policies and would, accordingly, guarantee the riglls and benefits provided by the Policies to Policyowners.9 These rights and benefits (e.g., surrender rights, death benefits, etc.) would remain the same but would be guaranteed by 9 Some state insuance deparents will require an endorsement to outstading policies to reflect the change of issuer.

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Equitable's larger pool of assets. The portion of the Policies' cash values that are allocated to thethe Separate Accounts would remai funded by the same pool of ~ssets that presently constitutes

Separate Accounts, and each division of the Separate Accounts would continue to invest in shares

of the same portfolio of the Trust.

Indeed, the Merger would only change the insurance company guaranteeing the death

benefit and certain other contractual rights, and would not afect those aspects that cause the

Policies to be treated as securities, e.g., the investment Separate Account interests under the

options available through the Separate Accounts. Moreover, as discussed above, owners of the

Policies would not be asked to make a new investment decision, since their vote or consent would

not be required in connection with Equitable's succession to Equitable Vanable as issuer of their

the Merger. Based on this analysis, we believe that Section Sand Rule 145 Policies as a result of

would be inapplicable to the change of the Separate Accounts' depositor. Accordingly, we believe that registration statements on Form N-14 would not be required. B. Section 8 of the 1940 Act Would be Inapplicable to the Change of Depositor

Pursuant to the Merger.
It is our view that the succession of Equitable to the position of depositor of the Separate Accounts as a result of the Merger could, and should, be effected through the amendment of the Separate Accounts' existing registration statements under the 1940 Act rather than through the filing of new notifications of registration and registration statements for the Separate Accounts change the pursuant to Section 8 of the 1940 Act. The change in the depositor would not

structure or operation of the Separate Accounts or their relationship to the insurance company the Policies. The Separate Accounts would continue to be treated as separate entities for all relevant purposes, including financial reporting. issuing the Policies or to the owners of

Equitable and the Separate Accounts would file amendments to the Separate Accounts'

existing registration statements on Form N-8B-2 under the 1940 Act to reflect the change in legal ownership of the Separate Accounts' assets as a result of the Merger. Equitable and the Separate Accounts .~lso would file new registration statements on Form S-6, or any successor form under the Securities Act so that registration statements would be effective for any securities transactions effected under the Policies after the Merger. Equitable would fie these registration statements in the Merger-l° order to ensure that they would become effective on or about the effective date of

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10 These registrtion sttements would contan new prospectses (or previously issued prospectues and supplements thereto) describing the Merger, among other thngs. Appropriate copies of these prospectues or supplements would be used for new saes or sent to existing owners. of outstading Policies, as the case may be, afer the Merger.

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11 of the 1940 Act Would be Inapplicable to the Change of Depositor Pursuant to the Merger.
C. Section

Based on the same analysis, we also believe that the change of depositor pursuant to the Merger would not involve an exchange of securities issued by an investment company, namely the interests in Equitable Vanable's Separate Accounts, for another security of an investment company for purposes of Section 11 of the 1940 Act. However, should this transaction be viewed as an offer of exchange of investment company secunties withi the meanig of Section

11 of the 1940 Act, we believe'that the proposed transaction would comply with the requirements of Rule 11a-2 thereunder, because any such deemed exchange would be made pursuant to an offer by an affliated insurance company and would be effected at relative net asset values. Thus, Commssion approval of this transaction should not be required under Section 11 of the 1940 Act. Would be Inapplicable to the Change ofDeposil~r Pursuant to the Merger. D. Section 17(á) of the 1940 Act

It does not appear to us that the change of depositor pursuant to the Merger would involve the purchase or sale of any secunty or other propert to or from the Separate Accounts requiring an exemption from Section 17(a). The Separate Accounts would not sell any assets to . ) Equitable in connection with the Merger and would not be parties to the Merger Agreement. The assets of the Separate Accounts would not be combined with those of any other separate account or entity as a result of the Merger. 11 As explained above, the Separate Accounts would remain intact as segregated pools of assets. E. Section 17 (d) of the 1940 Act Would be Inapplicable to the Change of Depositor

Pursuant to the Merger.
It is also our view that the change of depositor pursuant to the Merger would not involve the 1940; Act and Rule 17d-l thereunder in order for the Merger to be effected. As explained above, the Separate Accounts would not paricipate in the transactions related to the Merger, except to the extent that, through a '~ointll transaction requinng an exemption from Section 17(d) of

their depositor, they would make appropnate filings with the Commssion to reflect the change of such depositors. Equitable and Equitable Varable would bear the expense of these filings and all other expenses relating, directly or indirectly, to the Merger. Accordingly, the Merger would not l; i i In tls regard, the present request can be distngushed from pnor no-action requests where additional

exemptive relief under Section 17(a) of the 1940 Act was obtaned. See, e.g., Merril Lynch Life Insurance Company (pub. avaiL. Sept. 25, 1991) (assets of pre-existing anuity separate accounts of merged and suving insance companes to be combined upon consuation of merger)~ Harijord Life Insurance Company (pub. avaiL. Feb. 16, 1988) (assets of pre-existing separate accounts of merged and suving insurance companes to be combined upon consumation of merger).

Ms. Brenda D. Snee
Decmber 29,1995

result in any expenditure or receipt of funds by the Separate Accounts or in any sharing by the Separate Accounts in the profits or losses of any venture with any other person. Exemptive Relief Previously Granted. 6. Continuation of

We believe that the several exemptions under the 1940 Act that Equitable Variable and the Separate Accounts have received12 should continue to be applicable to Equitable and the Separate Accounts, and the other parties thereto, afer the Merger is consummated, without filing amended exemptions with the Commssion. Their continued or duplicative applications for the same

because the Merger would not change either the structre or operations of the Separate Accounts, nor their relationship to the depositor or the owners of the applicabilty is. appropriate

Equitable to Equitable Variable as
Policies. The only resulting change would be the succession of

issuer of the Policies and depositor for the Separate Accounts. It is our view that such a change would have no impact upon, and would not be relevant to, the exemptions that were previously ~ granted or the justifications offered for those exemptions. In further support of our position, ~e note that the staff has taken a favorable position on this issue in a series of no-action letters 13 addressing comparable transactions.

12 Equitable Variable Life Insurance Company, et.al., File No. 812-9270, ReI. No. IC-21032 (Api' 26, 1995) (notice) and Rd. No. IC-2lO94 (May 24, 1995) (order); File No. 812-9086, ReI. No. IC-20762 (Dec. 9, 1994) (notice) and ReI. No. IC-20822 (Jan. 6, 1995) (order),; File No. 812-8650, ReI. No. IC-20025 (Jan. 19, 1994) (notice) and ReI. No. IC-20109 (Mar. 3, 1994) (order); File No. 812-7921, ReI. No. IC-18867 (Jul. 27, 1992) (notice) and ReI. No. IC-18906 (Aug.. 24, 1992) (order); File No. 812-6159, ReI. No. 14860 (Dec. 18, 1985) (notice) and ReI. No. IC-14899 (Jan. 14, 1986) (order); File No. 812-6009, ReI. No. ie-14338 (Jan. 23, 1985) (notice) ard ReI. No. IC-14391 (Feb. 22, 1985) (order); File No. 812-5739, ReI. No. IC-13868 (Apr. 5, 1984) (notice) and ReI. No. IC-13931 (My 8, 1984) (order); File No. 812-5475, ReI. No. IC-13402 (Jul. 26, 1983) (notice) and ReI. No. IC-13443 (Aug. 18, 1983) (order); File No. 812-4113, ReI. No. IC-9707 (Apr. 4, 1977) (notice) and ReI. No. IC-9745 (Apr. 29, 1977) (order); File No. 812-3994, ReI. No. IC-9396 (Aug. 12, 1976) (notice) and ReI. No. IC-9432 (Sep. 8, 1976) (order); File No. 812-3824, ReI. No. IC-8931 (Sep. 11, 1975) (notice) and ReI. No. IC-8992 (Oct. 16, 1975) (order). ' 13 See, e.g., Security First Lif Insurance Company (pub. avaiL. Jan. 17, 1992); UNUM Life Insurance Company /, """. (pub. avaiL. Oct. 24, 1991); California - Western States Life Insurance Company (pub. avaiL. Dec. 9, 1991); Merril Lynch Life Insurance Company (pub. avaiL. Sept. 26, 1991); Mass Life Insurance Company (pub. avaiL. Nov. 14, 1989); Anchor National Life Insurance Company (pub. avaiL. Nov. 8, 1989); Lincoln National Pension Insurance Company (pub. avaiL. Dec. 29, 1988); Hartford Lif Insurance Company (pùb. avaiL. Feb. 16, 1988); Provident Mutual Variable Life Insurance Company (pub. avaiL. Feb. 2, 1987); and Voyager Life Insurance Company (pub. avaiL. Jan. 10, 1986).

.--

Ms. Brenda D. Snee

iv. No-Action Request

In view of these circumstances, we respectfully request that the staf issue a letter .' indicating that it would not recommend that the Commssion take any enforcement action in

connection with the transactions described herein with respect to Section 5 of the Securities Act

the 1940 Act. In addition, we request that and Rule 145 thereunder, and Sections 8, 11 and 17 of

the staff advise us that it would not recommend any action if: (i) change in the depositor for the

Separate Accounts as a result of the Merger is effected through the filing of an amendment to the

registration statement on Form N-8B-2 for the Separate Accounts under the 1940 Act; and (ii)

new registration statements on Form S-6, or any successor form, for the Policies are filed by

Equitable and the Separate Accounts to cover any securities transactions effected under the

Policies after the Merger. Finally, we request the staffs concurrence in ,our view that the

~ exemptive orders cited herein, to the extent they continue to be relied upon, will continue to be applicable to the Separate Accounts, and to their new depositor, Equitable, without filiI1g amended or duplicative applications for the same exemptions with the Commssion. If you have any questions or require further information with respect to this matter, please

call the undersigned at (212) 554-3841 or Tom Lauerman at Freedman, Levy, Kroll & Simonds at

(202) 457-5106.
Very truly yours,
!J7 pr ~
Mary P. Breen cc: Thomas C. Lauerman
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