[Federal Register Volume 64, Number 196 (Tuesday, October 12, 1999)]
[Notices]
[Pages 55316-55323]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-26523]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. IC-24071; File No. 812-11544]


Ameritas Variable Life Insurance Corp., et al.

October 4, 1999.
AGENCY: Securities and Exchange Commission (the ``Commission'' or 
``SEC'').

ACTION: Notice of application for an order pursuant to Section 26(b) of 
the Investment Company Act of 1940 (the ``1940 Act'') approving certain 
substitutions 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 investment portfolios 
created by Calvert Variable Series, a registered open-end management 
investment company, for portfolios of other registered management 
investment companies, and to permit certain in-kind redemptions of 
portfolio securities in connection with the substitutions.

APPLICANTS: Ameritas Variable Life Insurance Corp. (``AVLIC''), 
Ameritas Variable Life Insurance Corp. Separate Account VA-2 
(``Separate Account VA-2''), Ameritas Investment Corp. (``AIC''), and 
Ameritas Variable Life Insurance Corp. Separate Account V (``Separate 
Account V'') (collectively, the ``Applicants'').

FILING DATE: The application was filed on March 18, 1999 and amended 
and restated on September 27, 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 October 27, 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 who wish to be notified of a hearing may 
request notification by writing to the Secretary of the Commission.

ADDRESSES: Secretary, Securities and Exchange Commission, 450 Fifth 
Street, N.W., Washington, D.C. 20549-0609. Applicants: c/o Ameritas 
Variable Life Insurance Company, P.O. Box 81889, Lincoln, Nebraska 
68501-1889, Attention: Donald R. Stading, Esquire.

FOR FURTHER INFORMATION CONTACT: Zandra Y. Bailes, Senior Counsel, or 
Susan M. Olson, Branch Chief, 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 is available for a fee from the 
SEC's Public Reference Branch, 450 Fifth Street, N.W., Washington, D.C. 
20549-0102 (tel. (202) 942-8090).

Applicants' Representations

    1. AVLIC is a stock life insurance company organized in the State 
of Nebraska and currently licensed to sell life insurance in 46 states 
and in the District of Columbia. AVLIC is a wholly-owned subsidiary of 
AMAL Corporation (``AMAL''), a corporation organized under Nebraska law 
in 1996; Ameritas Life Insurance Company (``Ameritas Life''), also a 
Nebraska corporation, owns a majority interest in AMAL Corporation. 
Ameritas Life was, in turn a wholly-owned indirect subsidiary of 
Ameritas Mutual Insurance Holding Company. Ameritas Mutual Insurance 
Holding Company and Acacia Mutual Holding Company (``Acacia''), 
subsidiaries of which include companies that provide investment 
advisory and/or other services to CVS, consummated a merger effective 
January 1, 1999 (``Ameritas-Acacia Merger''). The combined company is 
known as AmeritasAcacia Mutual Holding Company.
    2. AIC, a Nebraska corporation, is an investment adviser registered 
under the Investment Advisers Act of 1940, as amended. AIC is a wholly-
owned subsidiary of AMAL and an affiliate of Ameritas Life.
    3. Separate Account VA-2 and Separate Account V (collectively, the 
``Separate Accounts'') are each registered with the Commission under 
the 1940 Act as a unit investment trust. Separate Account VA-2 serves 
as the funding vehicle for variable annuity contracts (``VA 
Contracts'') issued by AVLIC. Separate Account V serves as the funding 
vehicle for variable universal life contracts (``VUL Contracts'') 
issued by AVLIC. Each of the variable annuity and variable universal 
life contracts funded by the Separate Accounts (collectively, 
``Variable Contracts'') is registered with the Commission under the 
Securities Act of 1933 (``1933 Act'') and is offered exclusively by 
means of a prospectus which describes the applicable terms and 
conditions of each such contract. The Separate Accounts are each 
divided into separate subaccounts (each a ``Subaccount'') and each 
Subaccount invests exclusively in shares of one of the investment 
options currently available to contract holders (the ``Existing 
Funds'').
    4. The Existing Funds consist of 26 investment portfolios issued by 
investment companies not affiliated with Applicants, as follows: 
Variable

[[Page 55317]]

Insurance Products Funds and Variable Insurance Products Fund II 
(collectively, the ``Fidelity Portfolios''), Alger American Fund 
(``Alger Portfolios''), MFS Variable Insurance Trust (``MFS 
Portfolios''); and Morgan Stanley Dean Witter Universal Funds, Inc. 
(``Morgan Stanley Portfolios''). Each Of the Existing Funds is 
registered as a management investment company under the 1940 Act. Not 
all of the Existing Funds are involved in the substitutions. The 
application contemplates that four of the six Alger Portfolios, three 
of the five MFS Portfolios and two of the ten Fidelity Portfolios will 
be replaced by substantially similar funds. In fact, Applicants state 
that the substitutions are structured so that the investment objectives 
and policies of the substituted portfolios will mirror the investment 
policies and objectives of the corresponding replaced portfolios.
    5. The Variable contracts expressly reserve to AVLIC the right, 
subject to compliance with applicable law, to substitute shares of one 
open-end investment company for shares of another open-end investment 
company held by a Separate Account.
    6. Calvert Variable Series, Inc., (``CVS'') is registered under the 
1940 Act as an open-end management series. Currently, CVS has five 
investment portfolios (``Current CVS Series''). Shares of the Current 
CVS Series are offered only to insurance companies for allocation to 
certain of their variable separate accounts. Calvert Asset Management 
Company (``CAMCO'') provides investment management services to each of 
the current CVS Series. CVS has organized nine new series 
(collectively, the ``Ameritas Portfolios''). Each of the Ameritas 
Portfolios will replicate the investment objectives and policies of one 
of the Existing Funds involved in the Substitutions (each, a ``Replaced 
Fund'').
    7. Overall investment management services will be provided to each 
of the newly organized Ameritas Portfolios by AIC pursuant to an 
advisory agreement between AIC and CVS (``AIC Advisory Agreement''). 
Under the AIC Advisory Agreement, IC will be responsible for the 
management of the business and affairs of each of the Ameritas 
Portfolios, subject to the supervision of the Board of Directors of 
CVS. AIC will also be authorized to exercise full investment discretion 
and make all determinations with respect to the investment of the 
assets of the respective Ameritas Portfolios. Under the AIC Advisory 
Agreement, AIC will have the ability, at its own cost and expense and 
subject to applicable requirements of the 1940 Act, to retain other 
investment advisory organizations (``Subadvisers'') to provide day-to-
day portfolio management to each of the Ameritas Portfolios. For its 
services under the AIC Advisory Agreement, AIC will receive a fee from 
each of the Ameritas Portfolios. AIC, in turn, will pay the fees and 
expenses of any Subadviser retained by AIC or any of the Ameritas 
Portfolios.
    8. Applicants seek relief for nine substitutions. The table below 
lists, for seven of the nine substitutions, the Replaced Funds and the 
Ameritas Portfolios that will be substituted for each if the order 
requested is granted. The column entitled ``Investment Objective and 
Policies'' summarizes the investment objectives and policies that are 
now in effect for the indicated Replaced Fund and will be in effect, 
following the substitutions, with respect to the indicated Ameritas 
Portfolio. The investment objectives and policies of the Ameritas 
Portfolios mirror those of the Replaced Funds. Therefore, Applicants 
stat that following the substitutions, each of the listed Ameritas 
Portfolios will have objectives and policies that are substantially the 
same as the objectives and policies of the Replaced Funds. Moreover, 
Applicants state that day-to-day investment decisions for the Ameritas 
Portfolios listed in the table below will be made by the same 
investment advisory organization that currently serves the 
corresponding Replaced Fund. Under these circumstances, Applicants 
represent that the investment objectives of those contractholders who 
are affected by substitutions 1 through 7 will not be materially 
affected by the substitutions.

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                                                                                        Investment objective and
                                                               Subadviser for Ameritas    policies of replaced
          Replaced fund                Ameritas portfolio             portfolio             fund and Ameritas
                                                                                                portfolio
----------------------------------------------------------------------------------------------------------------
1. Alger Income and Growth.......  Ameritas Income and        Fred Alger Management,    Primarily seeks to
                                    Growth.                    Inc..                     provide a high level of
                                                                                         dividend income.
                                                                                         Secondary goal is to
                                                                                         provide capital
                                                                                         appreciation. Under
                                                                                         normal circumstances,
                                                                                         invests in dividend
                                                                                         paying equity
                                                                                         securities, such as
                                                                                         common or preferred
                                                                                         stocks, preferably
                                                                                         those believed to offer
                                                                                         opportunities for
                                                                                         capital appreciation.
2. Alger Growth..................  Ameritas Growth..........  Fred Alger Management,    Seeks long-term capital
                                                               Inc..                     appreciation. Focuses
                                                                                         on companies that
                                                                                         generally have broad
                                                                                         product lines, markets,
                                                                                         financial resources and
                                                                                         depth of management.
                                                                                         Under normal
                                                                                         circumstances, invests
                                                                                         primarily in equity
                                                                                         securities, such as
                                                                                         common or preferred
                                                                                         stocks, of companies
                                                                                         listed on U.S.
                                                                                         exchanges or in the
                                                                                         U.S. over-the-counter
                                                                                         market, with market
                                                                                         capitalizations of $1
                                                                                         billion or greater.

[[Page 55318]]

 
3. Alger Small Capitalization....  Ameritas Small             Fred Alger Management,    Seeks long-term capital
                                    Capitalization.            Inc..                     appreciation. Focuses
                                                                                         on small, fastgrowing
                                                                                         companies that offer
                                                                                         innovative products,
                                                                                         services or
                                                                                         technologies to a
                                                                                         rapidly expanding
                                                                                         marketplace. Under
                                                                                         normal circumstances,
                                                                                         invests primarily in
                                                                                         equity securities, such
                                                                                         as common or preferred
                                                                                         stocks, of small
                                                                                         capitalization
                                                                                         companies listed on
                                                                                         U.S. exchanges or in
                                                                                         the U.S. over-the-
                                                                                         counter market. A small
                                                                                         capitalization company
                                                                                         is one that has a
                                                                                         market capitalization
                                                                                         within the range of
                                                                                         companies in the Russel
                                                                                         2000 Growth Index or
                                                                                         the S&P SmallCap 600
                                                                                         index.
4. Alger MidCap Growth...........  Ameritas MidCap Growth...  Fred Alger Management,    Seeks long-term capital
                                                               Inc..                     appreciation. Invests
                                                                                         in midsize companies
                                                                                         with promising growth
                                                                                         potential. Under normal
                                                                                         circumstances, invests
                                                                                         primarily in equity
                                                                                         securities, such as
                                                                                         common or preferred
                                                                                         stocks, of companies
                                                                                         listed on U.S.
                                                                                         exchanges or in the
                                                                                         U.S. over-the-counter
                                                                                         market and having a
                                                                                         market capitalization
                                                                                         within the range of
                                                                                         companies in the S&P
                                                                                         MidCap 400 Index.
5. MFS Emerging Growth Series....  Ameritas Emerging Growth.  MFS Co..................  Seeks long-term growth
                                                                                         of capital. Invests,
                                                                                         under normal market
                                                                                         conditions, at least
                                                                                         65% of its total assets
                                                                                         in common stocks and
                                                                                         related securities,
                                                                                         such as preferred
                                                                                         stocks, convertible
                                                                                         securities and
                                                                                         depositary receipts for
                                                                                         those securities, of
                                                                                         emerging growth
                                                                                         companies.
6. MFS Research Series...........  Ameritas Research........  MFS Co..................  Seeks long-term growth
                                                                                         of capital and future
                                                                                         income. Invests, under
                                                                                         normal market
                                                                                         conditions, at least
                                                                                         80% of its total assets
                                                                                         in common stocks and
                                                                                         related securities,
                                                                                         such as preferred
                                                                                         stocks, convertible
                                                                                         securities and
                                                                                         depositary receipts.
                                                                                         Focuses on companies
                                                                                         that are believed to
                                                                                         have favorable
                                                                                         prospects for long-term
                                                                                         growth, attractive
                                                                                         valuations based on
                                                                                         current and expected
                                                                                         earnings or cash flow,
                                                                                         dominant or growing
                                                                                         market share and
                                                                                         superior management.
                                                                                         Investments may be made
                                                                                         in companies of any
                                                                                         size and may include
                                                                                         securities traded on
                                                                                         securities exchanges or
                                                                                         on the over-the counter-
                                                                                         markets.

[[Page 55319]]

 
7. MFS Growth w/Income...........  Ameritas Growth w/Income.  MFS Co..................  Seeks to provide
                                                                                         reasonable current
                                                                                         income and long-term
                                                                                         growth of capital and
                                                                                         income. Invests, under
                                                                                         normal market
                                                                                         conditions, at least
                                                                                         65% of its total assets
                                                                                         in common stocks and
                                                                                         related securities,
                                                                                         such as preferred
                                                                                         stocks, convertible
                                                                                         securities and
                                                                                         depositary receipts for
                                                                                         those securities. These
                                                                                         securities may be
                                                                                         listed on a securities
                                                                                         exchange or traded in
                                                                                         the over the counter
                                                                                         markets. While
                                                                                         investments may be made
                                                                                         in companies of any
                                                                                         size, the focus is on
                                                                                         companies with larger
                                                                                         market capitalizations
                                                                                         that are believed to
                                                                                         have sustainable growth
                                                                                         prospects and
                                                                                         attractive valuations
                                                                                         based on current and
                                                                                         expected earnings or
                                                                                         cash flow.
----------------------------------------------------------------------------------------------------------------

    9. Substitutions 8 and 9 involve a stock index and a money market 
fund, respectively--vehicles that select their investments from 
narrowly defined classes of securities and in accordance with legally 
mandated investment disciplines. The tables below compare the 
investment objectives and policies of the Replaced Funds and the 
Ameritas Portfolios involved in these two remaining substitutions, and 
indicate the investment advisory organization that will be responsible 
for day-to-day portfolio management following the Substitutions. With 
respect to substitutions 8 and 9, Applicants represent that the 
Ameritas Portfolios involved in substitutions have objectives and 
policies that are sufficiently similar to those of the Replaced Funds 
so that the objective of the affected contractholders can continue to 
be met.

----------------------------------------------------------------------------------------------------------------
                                                                    Investment objective and policies
----------------------------------------------------------------------------------------------------------------
                   Substitution No. 8
 
Replaced Fund, Fidelity Index 500, Fidelity Management   Seeks investment results that correspond to the total
 and Research.                                            return of common stocks publicly traded in the United
                                                          States, as represented by the Standard & Poor's 500.
                                                          Invests at least 80% of assets in common stocks
                                                          included in the Standard & Poor's 500. May lend
                                                          securities to earn income for the fund.
Ameritas Portfolio, Ameritas Index 500 Portfolio, State  Seeks investment results that correspond to the total
 Street Global Advisors.                                  return of common stocks publicly traded in the United
                                                          States, as represented by the S&P 500 Stock Index. The
                                                          Portfolio intends to invest in all 500 stocks in the
                                                          S&P Index in proportion to the weighting in the Index.
 
                   Substitution No. 9
 
Replaced Fund, Fidelity Money Market, Fidelity           Seeks as high a level of current income as is
 Management and Research.                                 consistent with the preservation of capital and
                                                          liquidity. Invests in U.S. dollar-denominated money
                                                          market securities, including U.S. Government
                                                          securities and repurchase agreements, and may enter
                                                          into reverse repurchase agreements.
Ameritas Portfolio, Ameritas Money Market Portfolio,     Seeks as high a level of current income as is
 CAMCO.                                                   consistent with the preservation of capital and
                                                          liquidity. Invests in U.S. dollar-denominated money
                                                          market securities of domestic and foreign issuers,
                                                          including U.S. Government securities and repurchase
                                                          agreements, and may enter into reverse repurchase
                                                          agreements. Invests more than 25% in the financial
                                                          services industry.
----------------------------------------------------------------------------------------------------------------

    10. In contrast to the Ameritas Portfolios involved in Substitution 
Nos. 1-7, the Ameritas Money Market Portfolio and the Ameritas Index 
500 Portfolio will, following the substitutions, be subadvised by 
investment advisory organizations different from the organizations that 
currently manage the money market and stock index offerings among the 
Existing Portfolios. Following the substitutions, day-to-day portfolio 
decisions for the Ameritas Money Market Portfolio will be the 
responsibility of CAMCO. Day-to-day portfolio decisions for the 
Ameritas Index 500 Portfolio will be the responsibility of State Street 
Global Advisors, a division of State Street Bank and Trust Co. As in 
the case of the other Ameritas Portfolios, however, AIC will provide 
overall management supervision for both the Ameritas Money Market and 
Ameritas Index 500 Portfolios.
    11. Applicants acknowledge that different investment advisory 
organizations may approach the management of money market and index 
funds differently. However, Applicants state that the potential impact 
of the change in the identity of the investment advisory organization 
responsible for day-to-day investment

[[Page 55320]]

decisions will be mitigated by the fact that these substitutions 
involve vehicles required to invest in a narrow range of securities and 
adhere to strict limits in their investment practices. In addition, 
Applicants believe the anticipated benefits that will follow from 
Applicants' increased ability to monitor and control the investment 
options offered to contractholders through the Variable Contracts 
outweigh any impact that a change in the portfolio manager of these 
funds may have on affected contractholders. Applicants also state that 
the investment advisory organizations that will be designated to make 
day-to-day investment decisions for the Ameritas Money Market Portfolio 
and Ameritas Index 500 Portfolio are experienced money managers and 
fully equipped to provide such services.
    12. Applicants state that the Ameritas Portfolios will, in all 
cases, be smaller than the Replaced Funds. Applicants, state therefore 
that it is likely that the Ameritas Portfolios will have higher expense 
ratios than the Replaced Funds. Recognizing this, Applicants state 
that, as a condition of the requested order, AIC will waive its fee 
and/or reimburse the expenses of any Ameritas Portfolios if the expense 
ratio of that Portfolio exceeds the expense ratio of the corresponding 
Replaced Fund (``Prior Expense Ratio''). This fee cap will remain in 
effect until one year following the date on which the order is issued. 
Following the one year period, Applicants believe that the economies 
that can be achieved under the proposed structure, and future 
transactions under consideration by AVLIC and certain of its affiliated 
companies will tend to reduce the expense ratios of the Ameritas 
Portfolios.
    13. Because there can be no guarantee that there will be 
substantial growth in the assets of the Ameritas Portfolios, AIC will 
guarantee, and will include such guarantee as a term in the AIC 
Advisory Agreement, that the expenses of an Ameritas Portfolio will not 
be permitted to exceed an expense ratio which is .10% greater than the 
Prior Expense Ratio of the corresponding Replaced Fund following the 
expiration of the initial one year fee cap, unless an amendment to the 
investment advisory contract is approved modifying or eliminating AIC's 
expense guarantee. Under Sections 15 (a) and (c) of the 1940 Act, any 
such amendment would require the approval of both the Board of 
Directors of CVS, including those directors who are ``independent 
directors'' of CVS, and the shareholders of the relevant Ameritas 
Portfolios. It is anticipated that the AIC Advisory Agreement will 
permit AIC to recapture expenses paid on behalf of the Ameritas 
Portfolios following the end of the one year fee cap period under 
certain circumstances. The AIC Advisory Agreement will include a 
provision that will permit AIC to recapture fees waived and/or expenses 
reimbursed to an Ameritas Portfolio following the expiration of the 
initial fee cap period. Such recapture would be permitted under the AIC 
Advisory Agreement, however, only after the expiration of the initial 
one year fee cap period and only with respect to periods in which the 
expense ratio of the relevant Ameritas Portfolio is a ratio which does 
not exceed the Prior Expense Ratio by more than .10%, after taking into 
account the fee recapture. In addition, such recapture will be 
available to AIC only until the second anniversary of the end of the 
initial fee cap period.
    14. The chart below shows Applicants' representations regarding: 
(i) Expense ratios for the Replaced Funds as of December 31, 1998 and 
(ii) the total assets of each Replaced Fund as of December 31, 1998.

----------------------------------------------------------------------------------------------------------------
                                                                                            Assets at 12/31/98
              Replaced fund                               Expense ratio                       (000 omitted)
----------------------------------------------------------------------------------------------------------------
Alger Small Cap.........................  0.89%........................................                1,216,584
Alger Growth............................  0.79%........................................                1,904,719
Alger Income and Growth.................  0.70%........................................                   77,926
Alger MidCap............................  0.84%........................................                  689,571
MFS Emerging Growth.....................  0.85%........................................                  908,987
MFS Research............................  0.86.........................................                  567,778
MFS Growth w/Income.....................  0.88% (after waiver \2\).....................                  244,310
Fidelity Index 500......................  0.28% (after waiver \2\).....................                3,772,068
Fidelity Money Market...................  0.30%........................................                1,507,489
----------------------------------------------------------------------------------------------------------------
\1\ Prior to October 2, 1998, MFS voluntarily capped operating expenses of the Growth w/Income Fund (exclusive
  of management fees) at .25%; has this policy not been in effect, the expense ratio for that fund would have
  been .95%.
\2\ For the period shown, Fidelity voluntarily capped total operating expenses at .28%; had this policy not been
  in effect, the expense ratio for the Fidelity Index 500 Portfolio would have been .35%.

    15. The following chart shows (i) the estimated expense ratio for 
the Ameritas Portfolios; (ii) estimated assets of the Ameritas 
Portfolios; (iii) expense ratios for the Ameritas Portfolios with the 1 
year cap in effect; and (iv) expense ratios after the one year cap.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                      Estimated expense ratio   Estimated assets  (000
                 Ameritas portfolio                           (percent)                omitted)           1 Year cap (percent)    Expense cap  (percent)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Small Cap...........................................                     1.00                  146,000                     0.89                     0.99
Growth..............................................                     0.89                  184,000                     0.79                     0.89
ncome & Growth......................................                     0.82                   68,000                     0.70                     0.80
MidCap..............................................                     0.97                   84,000                     0.84                     0.94
Emerging Growth.....................................                     0.91                  106,000                     0.85                     0.95
Research............................................                     1.15                   26,000                     0.86                     0.96
Growth w/Income.....................................                     1.00                   45,000                     0.88                     0.98
Index 500...........................................                     0.41                  197,000                     0.28                     0.38
Money Market Fund...................................                     0.35                  142,000                     0.30                     0.40
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 55321]]

    16. Applicants state that the Ameritas-Acacia Merger brought 
together under one corporate umbrella several separate asset management 
organizations. Applicants represent that one of the anticipated 
benefits of the substitutions will be the opportunity to take advantage 
of economies of scale created by the Ameritas-Acacia Merger. The 
substitutions are a first step in the process. Specifically, the 
substitutions are the first step in establishing a manager of managers 
structure that will provide Applicants with increased ability to affect 
the administration and management of the investment options offered 
through Variable Contracts. As the overall investment manager of each 
of the Ameritas Portfolios, AIC will be in a position to oversee the 
operations of the Ameritas Portfolios, including the performance and 
portfolio management. Applicants represent that, following the 
substitutions, Applicants will have the means to more directly monitor 
the overall manner in which investment options available through the 
Variable Contracts are managed and administered. Applicants also state 
that this will be an important tool in assuring an efficient interface 
between the Ameritas Portfolios and the Variable Contracts. Applicants 
further represent that Applicants' involvement in overseeing the 
investment options offered through the Variable Contracts will allow 
Applicants greater flexibility to react to poor performance or 
mismanagement by a service provider, including Subadvisers, than is 
possible under the current arrangement. Applicants believe that may be 
the case even before the Ameritas Portfolios are permitted to rely upon 
the CVS 15(a) Order (see below). For example, Applicants, through AIC, 
would be in a position to monitor the operation of the Ameritas 
Portfolios more closely than is currently the case with respect to the 
Replaced Funds. In addition, Rule 15a-4 under the 1940 Act would permit 
Applicants to recommend to the CVS Board that a particular manager be 
replaced. Assuming Board approval and assuming that the subadvisory fee 
would remain unchanged, a new investment advisory organization could be 
engaged and assume portfolio management responsibilities immediately , 
provided only that the approval of the holders of a majority of the 
outstanding voting securities of the affected portfolio were obtained 
within the period prescribed by the rule.
    17. CVS and certain of its affiliates have obtained exemptive 
relief from Section 15(a) of the 1940 Act (``CVS 15(a) Order''). The 
CVS 15(a) Order permits CAMCO, as the investment adviser for the 
several existing series of CVS to replace any subadviser or to employ a 
new Subadviser, without submitting such actions for the approval of 
shareholders of the affected series. Following the substitutions, 
Applicants anticipate that each of the Ameritas Portfolios will be 
entitled to rely on the CVS 15(a) Order. As a condition to the 
application, however, Applicants state that they will take no action in 
reliance on the CVS 15(a) Order with respect to any one of the Ameritas 
Portfolios unless and until the operation of that portfolio in the 
manner contemplated by the CVS 15(a) Order is approved following the 
substitutions, by the holders of a majority of the outstanding shares 
of that portfolio within the meaning of the 1940 Act and in a manner 
that is consistent with the order exempting CVS from certain provisions 
of Rules 6e-2 and 6e-3T under the 1940 Act (``CVS Shared Funding 
Order'').
    18. Applicants state that on May 3, 1999, a supplement to each of 
the prospectuses relating to the Variable Contracts was filed with the 
Commission. The supplements summarized the substitutions, including the 
possible impact that the substitutions may have on fees and expenses, 
and were mailed to all contractholders. Prior to the time that the 
order requested by the application is issued, but following the date on 
which a notice of the application is published in the Federal Register, 
AVLIC will file with the Commission another supplement to the 
prospectus relating to the Variable Contracts. These supplements 
(``Product Supplements'') will reflect all material information 
relating to the substitutions and the Ameritas Portfolios, including 
the identity of the Replaced Funds, a description of the Ameritas 
Portfolios and their respective investment objectives and policies, the 
Subadviser for each of the Ameritas Portfolios, fees and expenses 
associated with the Ameritas Portfolios, and the impact that the 
substitution will have on fees and expenses. In addition, CVS has filed 
a post-effective amendment to its registration statement to reflect the 
organization of the nine Ameritas Portfolios (``Amended CVS 
Prospectus'').
    19. Following the date on which the notice of the application is 
published in the Federal Register, but before the date on which the 
order requested by the application becomes effective (``Effective 
Date''), AVLIC will send to affected contractholders a notice (``Pre-
Substitution Notice'') which will include the Product Supplements. The 
Pre-Substitution Notice will inform affected contractholders of (i) the 
effective date of the substitutions; (ii) the right of each affected 
contractholder, under the VUL and VA Contracts, to transfer contract 
values among the various subaccounts; (iii) the fact that any such 
transfer that involves a transfer from any of the Replaced Funds will 
not be subject to any administrative charge and will not count as one 
of the ``free transfers'' to which affected contractholders may 
otherwise be entitled.
    20. Within five days after the Effective Date, affected 
contractholders will be sent written confirmation (``Confirmation 
Notice'') of the substitution transactions. The Confirmation Notice 
will (i) confirm that the substitutions were carried out; (ii) 
reiterate that each affected contractholder may make one transfer of 
all of the contract value or cash value under their Variable Contract 
that is invested in any one of the Subaccounts that were affected by 
the substitutions to any other Subaccount available under their 
Variable Contract without such transfer being subject to any 
administrative charge, or being counted as one of the ``free 
transfers'' (or one of the limited number of transfers) to which 
affected contractholders may be entitled under their Variable Contract; 
and (iii) state that AVLIC will not exercise any rights reserved by it 
under the Variable Contracts to impose additional restrictions on 
transfers until at least 30 days after the Effective Date. The 
Confirmation Notice will be accompanied by a then current prospectus 
relating to the relevant Variable Contract, amended to reflect the 
inclusion of the Ameritas Portfolios, as well as a definitive 
prospectus relating to the Ameritas Portfolios.
    21. Applicants state that the substitutions will be effected by 
redeeming shares of the Replaced Funds at relative net asset value and 
using the proceeds to purchase shares of the Ameritas Portfolios at net 
asset value on the date the substitutions take place. The proceeds of 
such redemptions will be effected through a combination of cash and in-
kind transactions. All redemptions and purchases will be effected in 
accordance with Rule 22c-1 under the 1940 Act. No transfer or similar 
charges will be imposed by AVLIC, and, at all times, all contract and 
policy values will remain unchanged and fully invested.
    22. Redemptions in-kind will be done in a manner consistent with 
the investment objectives, policies and diversification requirements of 
the respective Ameritas Portfolios. Further,

[[Page 55322]]

Applicants represent that the in-kind redemptions for each of the 
Ameritas Portfolios will be reviewed by the Subadviser responsible for 
making day-to-day investments decisions for that Portfolio to assure 
that the investment objective, investment policies and diversification 
requirements set forth in the registration statement relating to the 
relevant Ameritas Portfolio are satisfied. In addition, Applicants 
represent that the in-kind asset transfers will be valued in the manner 
that is consistent with the valuation procedures of both the Replaced 
Fund and the relevant Ameritas Portfolio. Applicants further state that 
any inconsistencies in valuation procedures between the Replaced Fund 
and the relevant Ameritas Portfolio will be reconciled so that the 
redeeming and purchasing values are the same. In addition, and 
consistent with Rule 17a-7 under the 1940 Act, no brokerage 
commissions, fees (except customary transfer fees) or other 
remuneration will be paid in connection with the in-kind transactions.
    23. The significant terms of the substitutions described in the 
application include:
    a. The Ameritas Portfolios involved in substitutions 1-7 have 
objectives and policies that are substantially the same as the 
objectives and policies of the Replaced Fund so that the objectives of 
the affected contractholders can continue to be met. The Ameritas 
Portfolios involved in substitutions 8 and 9 have objectives and 
policies that are sufficiently similar so that the objective of the 
affected contractholders can continue to be met.
    b. In connection with the proposed manager of managers structure, 
Applicants anticipate that each of the Ameritas Portfolios will seek to 
rely upon the CVS 15(a) Order. Applicants will take no action in 
reliance on the CVS 15(a) Order with respect to any one of the Ameritas 
Portfolios unless and until the application of the manager of managers 
structure contemplated by the CVS 15(a) Order is approved by a vote of 
a majority of the outstanding shares of that portfolio following the 
substitution and in a manner consistent with the CVS Shared Funding 
Order.
    c. As a result of AIC's contractual obligation to waive fees and/or 
reimburse expenses, the expense ratio of each Ameritas Portfolio will, 
immediately following the Effective Date, not exceed the expense ratio 
reported by the respective Replaced Funds as of the end of such 
Replaced Fund's then most recently ended fiscal quarter (``Prior 
Expense Ratio''). AIC will continue to waive its fees and/or reimburse 
expenses, for each Ameritas Portfolio as necessary in accordance with 
this undertaking until one year following the date on which the order 
requested by the application is issued.
    d. The AIC Advisory Agreement will also require AIC to guarantee 
that, following the initial one year fee cap, the expenses of an 
Ameritas Portfolio will not exceed an expense ratio that is 0.10% 
higher than the Prior Expense Ratio of its corresponding Replaced Fund 
unless an amendment to the AIC Advisory Agreement is approved, in 
accordance with Sections 15(a) and (c) of the 1940 Act, by the Board of 
Directors of CVS, including those directors who are ``independent 
directors'' of CVS, and the shareholders of the relevant Ameritas 
Portfolio.
    e. Affected contractholders may transfer assets from any Subaccount 
of the Separate Accounts to any other subaccount available under the 
Variable Contract as permitted by their contract. Any such transfer 
that involves a transfer from any of the Replaced Funds, from the date 
of the notice that the Replaced Funds will be substituted through a 
date at least 30 days following the Effective Date, will not be subject 
to any administrative charge, and will not count as one of the ``free 
transfers'' to which affected contractholders may otherwise be 
entitled. Affected contractholders may also withdraw amounts under any 
contract or terminate their interest in any such contract in accordance 
with the terms and conditions of any such contract, including, but not 
limited to payment of any applicable surrender charge.
    f. The substitutions will be effected at the net asset value of the 
respective shares in conformity with Section 22(c) of the 1940 Act and 
Rule 22c-1 thereunder, without the imposition of any transfer or 
similar charge, and without change in the amount or value of any 
Variable Contract held by affected contractholders. Affected 
contractholders will not incur any fees or charges as a result of the 
substitutions, nor will their rights or the obligations of AVLIC under 
such Variable Contracts be altered in any way. All expenses incurred in 
connection with the substitutions, including legal, accounting and 
other fees and expenses, will be borne by Applicants, other than the 
Separate Accounts.
    g. Redemptions in-kind will be handled in a manner consistent with 
the investment objectives, policies and diversification requirements of 
the Ameritas Portfolios. Consistent with Rule 17a-7(d) under the 1940 
Act, no brokerage commissions, fees (except customary transfer fees) or 
other remuneration will be paid by the Replaced Funds or Ameritas 
Portfolios or affected contractholders in connection with the in-kind 
transactions. In addition, the in-kind asset transfers will be valued 
in the manner that is consistent with the valuation procedures of both 
the Replaced Fund and relevant Ameritas Portfolio.
    h. The substitutions will not be counted as transfers in 
determining the limit on the total number of transfers that affected 
contractholders may otherwise make under the Variable Contracts.
    i. The substitutions will not alter in any way the annuity, life or 
tax benefits afforded under the Variable Contracts held by any 
contractholder.
    24. Applicants state that they will not complete the substitutions 
and related transactions described in the application (other than the 
mailing of the Pre-Substitution Notices) unless all of the following 
conditions are met:
    a. The Commission shall have issued an order (i) approving the 
substitutions under Section 26(b) of the 1940 Act; and exempting the 
in-kind redemptions from the provisions of Section 17(a) of the 1940 
Act as necessary to carry out the substitutions as described in the 
application.
    b. Each affected contractholder will be sent a Pre-Substitution 
Notice, which will include the Product Supplements and will inform 
affected contractholders of (i) the Effective Date of the 
substitutions; (ii) the right of each affected contractholder, under 
the VUL and VA Contracts, to transfer contract values among the various 
subaccounts (iii) the fact that any such transfer involves a transfer 
from any of the Replaced Funds will not be subject to any 
administrative charge and will not count as one of the ``free 
transfers'' to which affected contractholders may otherwise be 
entitled.
    c. Each affected contractholder will receive, within five days 
following the Effective Date of the substitutions, written notice 
(``Confirmation Notice'') which will (i) confirm that the substitutions 
were carried out; (ii) reiterate that each affected contractholder may 
make one transfer of all of the contract value or cash value under 
their Variable Contract that is invested in any one of the Subaccounts 
that was affected by the substitutions to any other Subaccount 
available under their Variable Contract without such transfer being 
subject to any administrative charge, or being counted as one of the 
``free transfers'' (or one of the limited number of transfers) to

[[Page 55323]]

which affected contractholders may be entitled under their Variable 
Contract; and (iii) state that AVLIC will not exercise any rights 
reserved by it under the Variable Contracts to impose additional 
restrictions on transfers until at least 30 days after the Effective 
Date. The Confirmation Notice will be accompanied by a then current 
prospectus relating to the relevant Variable Contract, amended to 
reflect the inclusion of the Ameritas Portfolios, as well as a 
definitive prospectus relating to the Ameritas Portfolios.
    d. AVLIC shall have satisfied itself that (i) the Variable 
Contracts allow the substitution of investments in the manner 
contemplated by the substitutions and related transaction described in 
the application; (ii) the transactions can be consummated as described 
in the application under applicable insurance laws; and (iii) that any 
regulatory requirements in each jurisdiction where the Variable 
Contracts are qualified for sale, have been complied with to the extent 
necessary to complete the transactions.

Applicants' Legal Analysis

    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 approves such substitution. 
Section 26(b) further provides that the Commission shall issue an order 
approving such 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.
    2. Applicants request an order pursuant to Section 26(b) of the 
1940 Act approving the substitutions and related transactions. 
Applicants assert that the purposes, terms, and conditions of the 
substitutions are consistent with the protection of investors and the 
purposes fairly intended by the 1940 Act. Applicants further assert 
that the substitutions will not result in the type of forced redemption 
that Section 26(b) was designed to guard against.
    3. Applicants maintain that the substitutions do not represent the 
type of transaction that Section 26(b) was designed to prevent for the 
following reasons: (a) the substitutions are designed to give AVLIC 
more control over investment products; (b) the substitutions are part 
of a series of business initiatives which have the potential to reduce 
expenses; (c) the substitutions will provide benefits to 
contractholders due to the additional services provided by AIC; and (d) 
the procedures that Applicants will follow in the substitutions will 
give affected contractholders ample notice of the substitutions and any 
potential impact. In addition, Applicants state that affected 
contractholders can transfer from the Replaced Funds or the Ameritas 
Portfolios (after the substitution) without a transfer charge. 
Applicants also note that only 9 of 26 investment options are involved 
in the substitutions, and this, in combination with the transfer 
rights, gives affected contractholders an ability to ``opt out'' and 
have an effective choice of investments. Applicants state that these 
alternatives provide a range of investments sufficient to meet affected 
contractholders' investment goals.
    4. Section 17(a)(1) of the 1940 Act prohibits any affiliated person 
of a registered investment company, or any affiliate of such affiliated 
person, from selling any security or other property to such registered 
investment company. Section 17(a)(2) of the 1940 Act prohibits any 
affiliated person from purchasing any security or other property from 
such registered investment company.
    5. Applicants request an order pursuant to Section 17(b) of the 
1940 Act exempting the in-kind redemptions and purchases from the 
provisions of Section 17(a). Section 17(b) of the 1940 Act provides 
that the Commission may grant an order exempting a proposed transaction 
from Section 17(a) if evidence establishes that: (1) The terms of the 
proposed transaction, including the consideration to be paid or 
received, are fair and reasonable and do not involve overreaching on 
the part of any person concerned; (2) the proposed transaction is 
consistent with the policy of each registered investment company 
concerned; and (3) the proposed transaction is consistent with the 
general purposes of the 1940 Act.
    6. Applicants represent that, if effected in accordance with the 
procedures described in the application and summarized herein, the 
substitutions are consistent with the general purposes of the 1940 Act 
and do not present any of the conditions or abuses that the 1940 Act 
was designed to prevent. Applicants state that the consideration to be 
paid by each Ameritas Portfolio, and received by each of the Replaced 
Funds, will be fair and reasonable and will not involve overreaching 
because the substitutions will not result in the dilution of the 
interests of any affected contractholders and will not effect any 
change in economic interest, contract value or the dollar value of any 
Variable Contract held by an affected contractholder. The in-kind 
redemptions and purchases will be done at values consistent with the 
policies of both the Replaced Funds and the Ameritas Portfolios and 
will satisfy the procedural safeguards of Rule 17a-7. Both AIC and the 
Subadviser of the relevant Ameritas Portfolio will review all the asset 
transfers to assure that the assets meet the objectives of the relevant 
Ameritas Portfolio and that they are valued under the appropriate 
valuation procedures of the Replaced Fund and such Ameritas Portfolio. 
The in-kind redemption proceeds will consist of the same securities 
that are currently held by the Replaced Funds. In addition, in seven of 
the nine substitutions, the organization responsible for providing 
portfolio management services to the Ameritas Portfolio and the 
Replaced Portfolio will be the same, and the Ameritas Portfolio 
involved in substitutions 8 and 9 generally invest in a narrow range of 
securities and must adhere to strict limits in their investment 
practices. Applicants represent that the transactions are consistent 
with the policies of each investment company involved and the general 
purposes of the 1940 Act, and comply with the requirements of Section 
17(b).
    7. Applicants state that the facts and circumstances in the 
application are sufficient to assure that the substitutions will be 
carried out in a manner that is consistent with Section 17(b) and 26(b) 
of the 1940 Act and that the terms and conditions to which the relief 
Applicants request hereby will be subject are consistent with orders 
the Commission has issued in the past under similar circumstances.

Conclusion

    Applicants assert that, for the reasons summarized above, the 
requested order approving the substitutions and related transactions 
involving 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. 99-26523 Filed 10-8-99; 8:45 am]
BILLING CODE 8010-01-M