[Federal Register Volume 67, Number 70 (Thursday, April 11, 2002)]
[Notices]
[Pages 17736-17739]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-8806]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. IC-25509; File No. 812-12668]


Lincoln Benefit Life Company, et al.

April 4, 2002.
AGENCY: Securities and Exchange Commission (``SEC'').

ACTION: Notice of an application for an order pursuant to Section 26(c) 
of the Investment Company Act of 1940 (the ``1940 Act'') approving a 
substitution of underlying fund shares by certain unit investment 
trusts.

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    Applicants: Lincoln Benefit Life Company (``Lincoln Benefit''), 
Lincoln Benefit Life Variable Annuity Account (the ``VA Account''), and 
Lincoln Benefit Life Variable Life Account (the ``VL Account'') 
(collectively, the ``Applicants'').
    Summary of Application: Applicants request an order to permit 
certain registered unit investment trusts to substitute shares of the 
T. Rowe Price MidCap Growth Fund (the ``Replacement Fund'') of the T. 
Rowe Price Equity Series, Inc. (``TRP Equity Series'') for shares of 
the Strong Discovery Fund II (the ``Replaced Fund'') of the Strong 
Variable Insurance Funds, Inc. (``Strong VI Funds'').
    Filing Date: The application was filed on October 19, 2001, and 
amended and restated on March 19, 2002.
    Hearing or Notification of Hearing: An order granting the 
application will be issued unless the SEC orders a hearing. Interested 
persons may request a hearing by writing to the Secretary of the SEC 
and serving Applicants with a copy of the request, in person or by 
mail. Hearing requests must be received by the SEC by 5:30 p.m. on 
April 29, 2002, and must 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 requester's 
interest, the reason for the request, and the issues contested. Persons 
may request notification of a hearing by writing to the Secretary of 
the SEC.

ADDRESSES: Secretary, SEC, 450 Fifth Street, NW, Washington, DC, 20549-
0609; Applicants, c/o Jorden Burt LLP, 1025 Thomas Jefferson Street, 
N.W., Suite 400 East, Washington, DC, 20007-0806, Attention: 
Christopher S. Petito, Esq.

FOR FURTHER INFORMATION CONTACT: Kenneth C. Fang, Attorney, or William 
J. Kotapish, Assistant Director, at (202) 942-0670, Office of Insurance 
Products, Division of Investment Management.

SUPPLEMENTARY INFORMATION: The following is a summary of the 
application. The complete application is available for a fee from the 
Public Reference Branch of the SEC, 450 Fifth Street, NW, Washington, 
DC, 20549 (tel. (202) 942-8090).

Applicants' Representations

    1. Lincoln Benefit is a stock life insurance company organized 
under the laws of the state of Nebraska in 1938. Lincoln Benefit is an 
indirect wholly-owned subsidiary of The Allstate Corporation.
    2. The VA Account is a segregated asset account of Lincoln Benefit. 
It was established by Lincoln Benefit in 1992, in accordance with the 
laws of the state of Nebraska and is registered as a unit investment 
trust under the 1940 Act. Lincoln Benefit issues certain variable 
annuity contracts through the VA Account.
    3. The VL Account was established by Lincoln Benefit in 1992 in 
accordance with laws of the state of Nebraska and is registered as a 
unit investment trust under the 1940 Act. The VL Account is used to 
fund certain variable life insurance policies issued by Lincoln 
Benefit.
    4. The above noted segregated asset accounts are referred to as 
``Separate Account Applicants.'' Certain variable annuity contracts and 
variable life policies issued by Lincoln Benefit through the Separate 
Account Applicants are referred to herein as ``Contracts.'' The 
variable interests under the Contracts are registered with the SEC 
under the Securities Act of 1933.
    5. Strong VI Funds was organized as a Wisconsin corporation on 
December 28, 1990. Strong VI Funds currently

[[Page 17737]]

issues shares in four investment portfolios, of which the Replaced Fund 
is one. Shares of the Replaced Fund were sold to separate accounts of 
eleven insurance companies, including Lincoln Benefit, for the purpose 
of funding variable annuity and variable life insurance policies. 
Strong VI Funds is registered as an open-end management investment 
company under the 1940 Act and its shares are registered as securities 
under the 1933 Act. The Replaced Fund is managed by Strong Capital 
Management Inc. (``SCM''). SCM is not affiliated with Lincoln Benefit.
    6. If the requested substitution order is granted, Lincoln Benefit, 
on behalf of the Separate Account Applicants, will substitute shares of 
the Replacement Fund, a series of the TRP Equity Series, for shares of 
the Replaced Fund. TRP Equity Series was organized as a Maryland 
corporation in 1994. It offers its shares in seven series. Shares of 
the Replacement Fund are offered at net asset value and are not subject 
to Rule 12b-1 fees. TRP Equity Series is registered as an open-end 
management investment company under the 1940 Act and its shares are 
registered as securities under the 1933 Act. Its shares are sold only 
to insurance company separate accounts to fund variable life insurance 
policies and variable annuity contracts. T. Rowe Price Associates, Inc. 
(``T. Rowe Price'') serves as investment adviser to the Replacement 
Fund. Neither T. Rowe Price nor the Replacement Fund is affiliated with 
Lincoln Benefit.
    7. SCM is planning to close the Replaced Fund. SCM reached this 
conclusion based on the Replaced Fund's small asset size, lack of 
expected asset growth and lack of economies of scale. On April 5, 2001, 
the Replaced Fund's Board of Directors voted to close the Replaced Fund 
to new participation agreements. Applicants have been advised that SCM 
intends to recommend that the Replaced Fund be liquidated once its 
various insurance company shareholders have arranged for alternative 
investments. Applicants do not know how long this process might take.
    8. On June 1, 2001, the Replaced Fund and its related parties 
notified Applicants that, as to the Replaced Fund, effective December 
1, 2001, they were terminating the Participation Agreement between and 
among Lincoln Benefit Life Company, Strong VI Funds, SCM, and Strong 
Funds Distributors, Inc. (the distributor for the Replaced Fund), dated 
April 6, 1998. As a result of the termination, the Replaced Fund no 
longer will make its shares available for investment with respect to 
Contracts purchased after the effective date of the termination. The 
Replaced Fund will continue to honor purchase orders placed with 
respect to Contracts purchased prior to December 1, 2001.
    9. Lincoln Benefit has determined that in light of the impending 
closure and liquidation of the Replaced Fund, it would be best for the 
company and the Contract owners invested in the Replaced Fund 
(``Owners'') to substitute the shares of the Replaced Fund with shares 
of the Replacement Fund (the ``Substitution''). If Applicants were to 
take no action until the Replaced Fund liquidates, affected Owners 
could be injured as a result of the likely increase in the Replaced 
Fund's expense ratio as other insurance companies exit the Replaced 
Fund. Accordingly, Applicants request the SEC's approval to effect the 
Substitution.
    10. Lincoln Benefit will redeem for cash all of the shares of the 
Replaced Fund that it currently holds on behalf of the Separate Account 
Applicants at the close of business on the date selected for the 
Substitution. Lincoln Benefit, on behalf of each Separate Account 
Applicant, will simultaneously place a redemption request with the 
Replaced Fund and a purchase order with the Replacement Fund, so that 
each purchase will be for the exact amount of the redemption proceeds. 
As a result, at all times monies attributable to Owners then invested 
in the Replaced Fund will remain fully invested and will result in no 
change in the amount of any Owner's contract value, death benefit or 
investment in the applicable Separate Account Applicant.
    11. The full net asset value of the redeemed shares held by the 
Separate Account Applicants will be reflected in the Owners' 
accumulation unit or annuity unit values following the Substitution. 
Lincoln Benefit has undertaken to assume all transaction costs and 
expenses relating to the Substitution, including any direct or indirect 
costs of liquidating the assets of the Replaced Fund, so that the full 
net asset value of redeemed shares of the Replaced Fund held by the 
Separate Account Applicants will be reflected in the Owners' 
accumulation unit or annuity unit values following the Substitution.
    12. Applicants anticipate that until the Substitution occurs, SCM 
will conduct the trading of portfolio securities in accordance with the 
investment objectives and strategies stated in the Replaced Fund's 
prospectus and in a manner that provides for the anticipated 
redemptions of shares held by the Separate Account Applicants.
    13. Applicants have determined, based on advice of counsel familiar 
with insurance laws, that the Contracts allow the Substitution as 
described in the application, and that the transactions can be 
consummated as described therein under applicable insurance laws and 
under the Contracts. In addition, prior to effecting the Substitution, 
Applicants will have complied with any regulatory requirements they 
believe are necessary to complete the transactions in each jurisdiction 
where the Contracts are qualified for sale.
    14. Affected Owners will not incur any fees or charges as a result 
of the Substitution, nor will the rights or obligations of Lincoln 
Benefit under the Contracts be altered in any way. The proposed 
Substitution will not have any adverse tax consequences to Owners. The 
proposed Substitution will not cause Contract fees and charges 
currently being paid by existing Owners to be greater after the 
proposed Substitution than before the proposed Substitution. The 
proposed Substitution will not be treated as transfers for the purpose 
of assessing transfer charges. Lincoln Benefit will not, with respect 
to shares substituted, exercise any right it may have under the 
Contracts to collect transfer fees or impose any additional restriction 
on transfers during the Free Transfer Period, as defined in paragraph 
16 below.
    15. Lincoln Benefit has supplemented the prospectuses for the 
Contracts to reflect the Substitution. Within five days after the 
Substitution, Lincoln Benefit will send to Owners written notice of the 
Substitution (the ``Notice''), identifying the shares of the Replaced 
Fund that have been eliminated and the shares of the Replacement Fund 
that have been substituted. Lincoln Benefit will include in such 
mailing the applicable prospectus supplement for the Contracts of the 
Separate Account Applicants describing the Substitution. Lincoln 
Benefit also will mail a copy of the prospectus for the Replacement 
Fund to the Owners, unless they already have received a copy of this 
prospectus in the ordinary course.
    16. Owners will be advised in the Notice that for a period of at 
least 30 days following the mailing of the Notice (the ``Free Transfer 
Period''), Owners may transfer all assets, as substituted, to any other 
available subaccount without limit or charge. In addition, Owners of 
variable annuity Contracts, who as a result of the Substitution are 
receiving variable annuity payments based on the Replacement Fund, will 
be permitted during the Free Transfer Period to transfer the 
substituted amounts to

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variable annuity payments based on other subaccounts, without limit or 
charge, notwithstanding any limits on such transfers in the variable 
annuity Contracts.

Applicants' Legal Analysis

A. Section 26(c)

    1. Section 26(c) of the 1940 Act provides that ``[i]t 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 [SEC] shall have approved such 
substitution.'' Section 26(c) of the 1940 Act was enacted as part of 
the Investment Company Act Amendments of 1970. Prior to the enactment 
of these amendments, a depositor of a unit investment trust could 
substitute new securities for those held by the trust by notifying the 
trust's security holders of the substitution within five (5) days after 
the substitution. In 1966, the SEC, concerned with the high sales 
charges then common to most unit investment trusts and the 
disadvantageous position in which such charges placed investors who did 
not want to remain invested in the substituted security, recommended 
that Section 26 be amended to require that a proposed substitution of 
the underlying investments of a trust receive prior SEC approval.
    2. The purposes, terms, and conditions of the Substitution are 
consistent with the principles and purposes of Section 26(c) and do not 
entail any of the abuses that Section 26(c) is designed to prevent. 
Applicants submit that they must effect a substitution, in order to 
protect Owners from the potential adverse consequences of the closure 
and liquidation of the Replaced Fund. Applicants state that they 
selected the Replacement Fund as the substitute, because its investment 
objectives and policies are substantially similar to those of the 
Replaced Fund and it has lower expenses and better long-term 
performance. Owners will be assessed no charges whatsoever in 
connection with the Substitution and their annual fund expense ratios 
are expected to decrease. In addition, to the extent an Owner does not 
wish to participate in the Substitution, he or she is free to transfer 
to any other option available under the relevant Contract prior to the 
Substitution and after the Substitution. No transfer fee will be 
charged, and the transfer will not count against any limit on free 
transfers under the Contracts.
    3. Applicants submit that the Substitution does not present the 
type of costly forced redemption or other harms that Section 26(c) was 
intended to guard against and is consistent with the protection of 
investors and the purposes fairly intended by the 1940 Act for the 
following reasons:
    (a) The Substitution will continue to fulfill Owners' objectives 
and risk expectations, because the Replaced Fund and the Replacement 
Fund have substantially similar investment objectives, policies, and 
restrictions. Applicants believe that of the investment options 
currently available under the Contracts, the Replacement Fund is most 
similar to the Replaced Fund.
    (b) after receipt of the Notice informing an Owner of the 
Substitution, an Owner may request that his or her assets be 
reallocated to another subaccount at any time during the Free Transfer 
Period without any limit or charge and without the transfer being 
counted against any limit on transfers under the Contracts. The Free 
Transfer Period provides sufficient time for Owners to consider their 
reinvestment options;
    (c) the Substitution will be at net asset value of the respective 
shares, without the imposition of any transfer or similar charge;
    (d) Lincoln Benefit has undertaken to assume all expenses and 
transaction costs, including, but not limited to, legal and accounting 
fees and any brokerage commissions, in connection with the 
Substitution;
    (e) the Substitution will in no way alter the contractual 
obligations of Lincoln Benefit or the rights and privileges of Owners 
under the Contracts;
    (f) the Substitution will in no way alter the tax benefits to 
Owners;
    (g) the Substitution is expected to confer certain economic 
benefits on Owners by virtue of enhanced asset size and lower expenses, 
as described below;
    (h) at the time of the Substitutions, the aggregate fees and 
expenses of the Replacement Fund are expected to be lower than those of 
the corresponding Replaced Fund; and
    (i) Lincoln Benefit does not currently receive, and will not 
receive for three years from the date of the requested Commission 
order, any direct or indirect benefit from the Replacement Fund, T. 
Rowe Price Inc., or any of its affiliates at a higher rate than Lincoln 
Benefit has received from the Replaced Fund, SCM, or any of its 
affiliates, including without limitation Rule 12b-1 fees, shareholder 
service or administrative or other service fees, revenue sharing or 
other arrangements, either with specific reference to the Replacement 
Fund or as part of an overall business arrangement.
    4. As described below, the Replacement Fund and the Replaced Fund 
have investment objectives and policies that are substantially similar.
    5. The Replaced Fund's investment objective is to seek capital 
growth. The Replaced Fund pursues its objective by investing, under 
normal conditions, in securities that its manager believes offer 
attractive opportunities for growth. The Replaced Fund usually invests 
in a diversified portfolio of common stocks. It invests a substantial 
portion of its assets in the stocks of small and mid-capitalization 
companies. These are chosen through a combination of in-depth 
fundamental analysis of a company's financial reports and direct, on-
site research during company visits. When the manager believes market 
conditions favor fixed income investments, the manager has the 
flexibility to invest a significant portion of the Replaced Fund's 
assets in intermediate- and long-term investment grade bonds. To a 
limited extent, the Replaced Fund may also invest in foreign 
securities.
    6. The Replacement Fund's investment objective is to provide long-
term capital appreciation by investing in mid-cap stocks with potential 
for above-average earnings growth. The Replacement Fund pursues its 
objective by investing at least 65% of its assets in a diversified 
portfolio of common stocks of mid-capitalization companies whose 
earnings the adviser expects to grow at a faster rate than the average 
company. While most assets will be invested in U.S. common stocks, 
other securities may also be purchased, including foreign stocks, 
futures, and options in keeping with the Replacement Fund's objective.
    7. Applicants represent that the Replacement Fund has objectives, 
policies, and restrictions substantially similar to the objectives, 
policies and restrictions of the Replaced Fund. The only significant 
investment difference between the Replaced Fund and the Replacement 
Fund is that the Replacement Fund's investment objective requires it to 
invest primarily in the stocks of mid-capitalization companies, whereas 
the Replaced Fund may invest in stocks of companies of all sizes. In 
practice, however, the Replaced Fund invests a substantial portion of 
its assets in mid- and small-capitalization stocks. As a result, the 
investment strategies of the two funds overlap substantially. Moreover, 
Owners who currently invest in the subaccounts corresponding to the 
Replaced Fund will be able to continue to invest in

[[Page 17739]]

small-capitalization stocks by allocating contract value to other 
investment options available under the Contracts.
    8. Accordingly, Lincoln Benefit has specifically determined that 
the Replacement Fund is an appropriate investment vehicle for Owners 
who have allocated value to the Replaced Fund and that the Substitution 
will be consistent with Owners' investment objectives and risk 
expectations.
    9. The fees and expenses of the Replacement Fund will be less than 
the Replaced Fund's fees and expenses. The total expenses for the 
Replacement Fund for the year ended December 31, 2001, were 0.85% of 
net assets (0.85% management fee, 0.00% other expenses). The total net 
expenses for the Replaced Fund for the year ended December 31, 2001, 
were 1.20% of net assets (1.00% management fee, and 0.20% other 
expenses) (With respect to the Replaced Fund, SCM may voluntarily waive 
its fees. In 2001, SCM did not waive any fees. The Replacement Fund 
does not have any fee waiver or expense reimbursement arrangement). 
Lincoln Benefit is entitled to receive a service fee from the 
investment adviser of each Fund in return for providing certain 
administrative support services. Applicants represent that the service 
fee rate will not increase as a result of the Substitution.
    10. The Replacement Fund has significantly more assets than the 
Replaced Fund. It is expected that the lower expense ratios should 
continue as a result of the significantly greater assets of the 
Replacement Fund.
    11. Since its inception on December 31, 1996 the Replacement Fund 
has had average annual total returns of 13.81%, which are significantly 
higher than the Replaced Fund's five-year average annual returns of 
6.41%. In light of the long-term perspective that is more appropriate 
under variable contracts, Applicants believe that the longer-term 
results are most significant for Owners. Moreover, in any event, as a 
result of the planned closing of the Replaced Fund, its performance no 
longer will be available to Owners. While there is no guarantee that 
past performance will continue, the foregoing return data support 
Applicants' view that the Substitution is not expected to diminish 
performance or otherwise reduce Contract values.
    12. Applicants request an Order of the SEC pursuant to Section 
26(c) of the 1940 Act to permit them to effect the Substitution on the 
terms set forth in the Application.

    For the SEC, by the Division of Investment Management, pursuant 
to delegated authority.
J. Lynn Taylor,
Assistant Secretary.
[FR Doc. 02-8806 Filed 4-10-02; 8:45 am]
BILLING CODE 8010-01-P