[Federal Register Volume 59, Number 78 (Friday, April 22, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-9829]


[[Page Unknown]]

[Federal Register: April 22, 1994]


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DEPARTMENT OF LABOR
Pension and Welfare Benefits Administration
[Prohibited Transaction Exemption 94-34; Exemption Application No. D-
8896, et al.]

 

Grant of Individual Exemptions; American Express Company and 
Affiliates, et. al.

AGENCY: Pension and Welfare Benefits Administration, Labor.

ACTION: Grant of individual exemptions.

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SUMMARY: This document contains exemptions issued by the Department of 
Labor (the Department) from certain of the prohibited transaction 
restrictions of the Employee Retirement Income Security Act of 1974 
(the Act) and/or the Internal Revenue Code of 1986 (the Code).
    Notices were published in the Federal Register of the pendency 
before the Department of proposals to grant such exemptions. The 
notices set forth a summary of facts and representations contained in 
each application for exemption and referred interested persons to the 
respective applications for a complete statement of the facts and 
representations. The applications have been available for public 
inspection at the Department in Washington, DC. The notices also 
invited interested persons to submit comments on the requested 
exemptions to the Department. In addition the notices stated that any 
interested person might submit a written request that a public hearing 
be held (where appropriate). The applicants have represented that they 
have complied with the requirements of the notification to interested 
persons. No public comments and no requests for a hearing, unless 
otherwise stated, were received by the Department.
    The notices of proposed exemption were issued and the exemptions 
are being granted solely by the Department because, effective December 
31, 1978, section 102 of Reorganization Plan No. 4 of 1978 (43 FR 
47713, October 17, 1978) transferred the authority of the Secretary of 
the Treasury to issue exemptions of the type proposed to the Secretary 
of Labor.

Statutory Findings

    In accordance with section 408(a) of the Act and/or section 
4975(c)(2) of the Code and the procedures set forth in 29 CFR part 
2570, subpart B (55 FR 32836, 32847, August 10, 1990) and based upon 
the entire record, the Department makes the following findings:

    (a) The exemptions are administratively feasible;
    (b) They are in the interests of the plans and their 
participants and beneficiaries; and
    (c) They are protective of the rights of the participants and 
beneficiaries of the plans.

American Express Company and Affiliates Located in New York, New 
York

[Prohibited Transaction Exemption 94-34; Exemption Application No. 
D-8896]

Exemption

    American Express Company and each of its wholly-owned subsidiaries 
shall not be precluded from functioning as a ``qualified professional 
asset manager'' pursuant to Prohibited Transaction Exemption 84-14 (PTE 
84-14, 49 FR 9494, March 13, 1984) solely because of a failure to 
satisfy section I(g) of PTE 84-14, as a result of affiliation with E.F. 
Hutton & Company, Inc. (Hutton) and Shearson Lehman Brothers, Inc. 
(Shearson), formerly Shearson Lehman Hutton, Inc.
    For a more complete statement of the facts and representations 
supporting the Department's decision to grant this exemption, refer to 
the notice of proposed exemption published on July 20, 1993 at 58 FR 
38788.

EFFECTIVE DATE: This exemption is effective as of January 13, 1988, the 
date on which Hutton was acquired by Shearson.

WRITTEN COMMENTS: The Department received two written comments, one of 
which included a request for a hearing. The comments, and the 
applicant's responses to the comments, are summarized as follows:

    1. One comment letter, which included a request for a hearing, 
was submitted on behalf of the New York State Teamsters Conference 
Pension and Retirement Fund and the New York State Teamsters Council 
Health and Hospital Fund (the Teamsters Funds). The comment 
expressed objection to the proposed exemption because a civil 
lawsuit (the Teamsters Lawsuit) relating to the activities of 
Shearson and the Inserras remained unresolved, and because of those 
activities involved allegations of violations of the prohibited 
transactions provisions of the Act. In reply to this comment, the 
Applicant has informed the Department that the Teamsters Lawsuit has 
been settled. The resolution of the Teamsters Lawsuit has been 
confirmed by a representative of the Teamsters Funds. The Department 
notes that litigation resulting from a complaint filed by the 
Department charging Shearson with violations of sections 404 and 406 
of the Act, with respect to Shearson's activities involving the 
Inserras, was settled in 1992.

    After careful consideration of the entire record, the Department 
has determined that no issues have been raised which would require the 
convening of a hearing, and it has determined that the factual issues 
identified have been fully explored through written submissions. 
Accordingly, the Department has determined not to hold a public 
hearing.
    2. Another comment letter was submitted on behalf of the 
International Brotherhood of Painters and Allied Trades Industry 
Pension Fund (the Painters Fund). The Painters Fund objects to the 
proposed exemption because of allegations against Shearson and two 
individuals, William Duvall and Kent Kitchel (collectively, the 
Defendants), that their conduct with respect to the Painters Fund 
constituted violations of the Act, including prohibited transactions 
and breaches of fiduciary duties, and violations of the Investment 
Advisers Act of 1940. The Painters Fund notes that a civil lawsuit (the 
Painters Fund Lawsuit) filed against the Defendants by the Painters 
Fund on May 8, 1992 remains unresolved. The Painters Fund maintains 
that the proposed exemption should not be granted until the allegations 
involving Shearson's conduct with respect to the Painters Fund are 
resolved.
    In reply to this comment, the Applicant relates that on July 31, 
1993, it sold the Shearson retail brokerage business to Primerica, and 
that Primerica's new wholly-owned subsidiary, Smith Barney Shearson 
(SBS), is solely responsible for that retail brokerage business. The 
Applicant represents that pursuant to the terms of that sale, the 
responsibility for the Painters Fund Lawsuit was transferred to SBS, 
including exclusive control of the defense and authority to settle the 
case without prior notice to or approval of Lehman, which is the 
American Express subsidiary remaining after the transfer of the 
Shearson retail brokerage business to SBS. The Applicant maintains that 
this transfer of responsibility and control occurred because the 
parties to the sale agreed that SBS should assume the liability for the 
Painters Fund Lawsuit, in addition to other litigation, and that a $50 
million balance sheet reserve was established to cover the liabilities 
arising out of the transferred litigation. The Applicant states that 
this agreement provides that Lehman will be liable for 50 percent of 
any liabilities which in the aggregate exceed the balance sheet reserve 
in connection with the transferred litigation, without any right on the 
part of Lehman to control the conduct or outcome of such litigation. 
The Applicant states that there no longer exists any nexus between 
American Express Company, its affiliates, and the allegations against 
the Defendants in the Painters Fund Lawsuit, and that the pendency of 
the Painters Fund Lawsuit, involving a business which the Applicant no 
longer owns or controls, should not prevent the granting of the 
proposed exemption.
    After consideration of the entire record, including the comments 
and responses thereto, the Department has determined to grant the 
exemption.
    For further information contact: Ronald Willett of the Department, 
telephone (202) 219-8881. (This is not a toll-free number.)

Reliance Group Holdings, Inc. Plan, (the RGH Plan), Located in New 
York, New York; Commonwealth Pension Plan (the Commonwealth Plan), 
Located in Philadelphia, Pennsylvania; RIC Employee Pension Plan (the 
RIC Plans); (together, the Plans) Located in Philadelphia, Pennsylvania

[Prohibited Transaction Exemption 94-35; Exemption Application Nos. D-
9159, D-9160 and D-9161, respectively]

Exemption

    The restrictions of sections 406(a), 406(b) (1) and (2) and 407(a) 
of the Act and the sanctions resulting from the application of section 
4975 of the Code, by reason of section 4975(c)(1) (A) through (E) of 
the Code, shall not apply to (1) the continued holding by the Plans 
after December 31, 1992, of shares of common stock (the Stock) of 
Reliance Group Holdings, Inc. (RGH); (2) the cash payment by RGH to the 
Plans pursuant to an irrevocable shortfall agreement (the Shortfall 
Agreement) between the Plans and RGH whereby RGH will reimburse the 
Plans by the amount by which the fair market value of shares of the 
Stock on December 31, 1992 exceeds the fair market value of the Stock 
sold by the Plans; (3) the prior acquisition and holding by the Plans 
of warrants (the Warrants) from RGH which entitle the Plans to acquire 
additional shares of the Stock; (4) the exercise of the Warrants by the 
Plans and the holding of the Stock acquired pursuant to the Warrants; 
and (5) the sale of any unexercised Warrants by the Plans to RGH upon 
the Warrants' expiration provided that the following conditions are 
satisfied:
    (A) The Plans' interests for all purposes with respect to the Stock 
and the Warrants are represented by an independent fiduciary for the 
duration of the Plans' holding of any of the Stock or the Warrants;
    (B) The independent fiduciary will take whatever action is 
necessary to protect the Plans' rights, including but not limited to, 
selling the Stock and taking the appropriate action to enable the Plans 
to receive amounts due pursuant to the Shortfall Agreement;
    (C) The independent fiduciary shall have 90 days to reduce the 
value of the Plans' holding of the Stock to 10 percent if: (1) the 
independent fiduciary exercises the Warrants to acquire additional 
shares of the Stock, and (2) immediately following such acquisition, 
the value of the total shares of the Stock held by any Plan exceeds 10 
percent of the fair market value of such Plan's assets; and
    (D) RGH's obligations under the Shortfall Agreement remain secured 
by an escrow account (the Escrow) containing cash or U.S. Government 
securities equal to at least 25% of the fair market value of the Stock 
on December 31, 1992, and if any Plan acquires additional shares of the 
Stock pursuant to the Warrants, RGH shall deposit in the escrow account 
an amount equal to 25% of the total acquisition price.
    Effective Dates: The effective date with respect to all 
transactions arising from the acquisition of the Warrants is January 
28, 1992; and with respect to the holding of the Stock, the execution 
and the exercise of the Shortfall Agreement, the effective date is 
January 1, 1993.
    For a more complete statement of the facts and representations 
supporting the Department's decision to grant this exemption, refer to 
the notice of proposed exemption (the Notice) published June 2, 1993, 
at 58 FR 31427.

Comments

    In the Notice, the Department invited interested persons to submit 
written comments and requests for a hearing on the exemption. Nineteen 
comments from interested persons were received by the Department.
    The commenters' concerns and the Plans' independent fiduciary's 
response to the comments are summarized below.
    1. Some commenters questioned generally whether the granting of the 
exemption would risk the security of their pensions. LaSalle National 
Trust, N. A. (LaSalle), the independent fiduciary representing the 
Plans' for purposes of the exemption, explained that the granting of 
the exemption in and of itself does not affect the security of the 
participants pensions. First, the holding of the Stock by each Plan 
represents only 5% to 5.5% of the total assets of each of the Plans as 
of March 31, 1992. In addition, the Shortfall Agreement and the Escrow 
arrangement provide the Plans with downside protection. Such downside 
protection, LaSalle stated, is not typically available with respect to 
an equity investment. LaSalle noted that these factors, together with 
the expected reasonable growth potential of the Stock, would not lead 
to an adverse effect on pension benefits should the exemption be 
granted.
    2. A commenter suggested that the Stock should be sold because the 
assets of the Plans are not sufficiently diversified. LaSalle responded 
by stating that because only 5 to 5.5% of each of the Plans' assets are 
invested in the Stock, there is adequate diversification of the Plans' 
assets.
    3. One commenter was concerned that the Plans' assets were used to 
purchase Warrants that may involve Stock purchase prices which are 
higher than the Stock's price at the time the Warrants were issued. 
LaSalle stated that the Plans received the Warrants at no cost, and 
they will not exercise the Warrants unless the Stock's price increases 
so that such exercise is advantageous to the Plans.
    4. Some commenters questioned whether the granting of the exemption 
would adversely effect the calculation or vesting of their pension 
benefits. LaSalle noted that because the transaction is not related to 
the calculation or the vesting of participant benefits and only 
pertains to the holding of the Stock by the Plans, the granting of the 
exemption cannot have this adverse effect.
    5. Several commenters inquired as to whether the Plans should 
invest in a different stock that would pay higher dividends. LaSalle 
explained that RGH currently pays a dividend of $0.32 per share which 
represents a 4.7% annual yield. LaSalle stated that according to 
Barron's, as of February 3, 1994, the S&P 500 had an average annual 
dividend yield of 2.72%. When coupled with the Stock's reasonable 
growth potential and the downside protection provided by the Shortfall 
Payment Agreement and the Escrow Account, LaSalle considered the 
dividend yield to favor an investment in the Stock.
    6. One commenter expressed concern that the granting of the 
exemption would permit the removal of Plan assets and the disbanding of 
the Plan. LaSalle stated that the exemption affects only whether the 
Stock may be held as an asset of the Plans and does not permit the 
disbanding of the Plans.
    7. One commenter objected to the transaction because Saul Steinberg 
owned 77% of the Stock. Another commenter objected that RGH was no 
longer publicly traded. LaSalle explained that these comments are not 
accurate. After RGH completed a capital enhancement program in November 
1993, Saul Steinberg and his family owned slightly less than 50% of the 
Stock. Moreover, the Stock is publicly traded on the New York Stock 
Exchange.
    8. One comment suggested that the Stock held by the Plans could 
have been sold to third parties without depressing its market value. 
Thus, the commenter implied that the Stock should have been sold. 
LaSalle noted that while it is presumably true that the Stock could 
have been sold over a reasonable period of time without depressing the 
market price, this fact in and of itself is not dispositive as to 
whether the Stock should have been sold. LaSalle stated that as 
independent fiduciary, they have concluded, after extensive analysis, 
that it is in the best interest of the Plans' participants and 
beneficiaries for the Plans to continue to hold the Stock.
    In light of some of the concerns expressed by the commenters, the 
Department also asked LaSalle to address various issues relating to 
RGH's ability to fulfill its obligations under the Shortfall Agreement. 
In its response, LaSalle noted that on November 15, 1993, RGH completed 
a capital enhancement plan which refinanced substantially all of its $1 
billion in outstanding debt. The capital enhancement plan extinguished 
the $340 million debt which was due in 1993/1994 by replacing it with 
Senior Notes which are not due until November 15, 2000 and Senior 
Subordinated Debentures which are not due until November 15, 2003. The 
new notes and debentures carry lower interest rates than the debt which 
has been extinguished. According to LaSalle, this is a positive factor 
in evaluating RGH's future financial prospects, including its earnings 
and dividend capabilities. Moreover, the completion of the common stock 
offering generated substantial additional shareholder equity to RGH. 
Therefore, LaSalle concluded that RGH will be able to fulfill its 
obligations under the Shortfall Agreement.
    LaSalle believes that as a result of the capital enhancement 
program (as discussed above), the Stock has reasonable growth 
potential. LaSalle's financial advisor, LaSalle Street Capital 
Management, Ltd. has advised them that the property and casualty 
insurance industry is currently rebounding, and it is expected that RGH 
will participate in this industry growth trend. Secondly, the Shortfall 
Agreement and the Escrow arrangement that have been adopted in 
connection with the Plans' holding of the Stock, provide the Plans with 
valuable downside protection that is not normally available with 
respect to an equity investment.
    Finally, the applicants submitted a comment letter asking the 
Department to clarify certain items contained in the Notice.
    1. In order to describe specifically the condition which limits the 
value of the Plans' holding in the Stock in the event the Plans acquire 
additional shares of the Stock pursuant to the Warrants, the applicants 
request that the phrase ``immediately following such acquisition'' be 
added to section (C)(2) of the exemption so it would read: ``(2) 
Immediately following such acquisition, the value of the total shares 
of the Stock held by any Plan exceeds 10 percent of the fair market 
value of such Plan's assets.''
    2. With respect to the Shortfall Agreement described in 
Representation (Rep.) 7 of the Notice, the applicants wish to add the 
following sentences after the last sentence in Rep. 7: ``Under the 
terms of the Shortfall Agreement, the Shortfall Agreement shall remain 
in effect for as long as any shares of the Stock are held by the plans. 
However, upon thirty days written notice to the Plans, RGH may 
terminate the Shortfall Agreement with respect to shares of the Stock 
to be acquired pursuant to the Warrants. Any such termination would 
result in the Plans' acquiring no additional shares of the Stock unless 
such acquisition does not constitute a prohibited transaction. Thus, 
any such termination by RGH would not affect in any way RGH's 
obligations with respect to the Shortfall Agreement for shares of the 
Stock held by the Plans as of the termination date or acquired 
thereafter pursuant to a Warrant exercised or a binding contract 
entered into prior to such termination date.''
    3. The applicants wish to clarify that no stock will be acquired by 
the Plans due to the exercise of the Warrants unless RGH agrees in 
writing. Thus, the following sentence should be inserted after the last 
sentence in Rep. 6: ``No shares of the Stock will be acquired through 
the exercise of the Warrants unless RGH agrees in writing, prior to 
their acquisition, to the application of the Shortfall Agreement to the 
shares of the Stock acquired pursuant to the Warrants.''
    4. The applicants have requested that the fourth sentence of Rep. 8 
read: ``The Escrow shall be maintained at a minimum value of 25 percent 
of the value of the Stock as of December 31, 1993 and 25 percent of the 
acquisition price of any Stock acquired pursuant to the Warrants.''
    5. Lastly, the applicants represent that the Plans' rights to the 
amount held in the Escrow do not arise as a result of ``a lien'' in 
favor of the Plans. Rather, the Plans' rights arise from the Escrow 
agreement, and the assets of the Escrow account are not considered to 
be assets of RGH. Consequently, under the terms of the Escrow 
agreement, creditors of RGH do not have a claim on the assets of the 
Escrow. Thus, the applicants would like ``first claim'' to replace 
``first lien'' in the fourth sentence of Rep. 8.
    The Department has reviewed the clarifications as described above, 
and concurs with these changes. Accordingly, upon consideration of the 
entire record, including the written comments received, the Department 
has determined to grant the exemption subject to the aforementioned 
changes.
    For Further Information Contact: Allison K. Padams of the 
Department, telephone (202) 219-8971. (This is not a toll-free number.)

The Northern Trust Company (Northern Trust) Located in Chicago, 
Illinois

[Prohibited Transaction Exemption 94-36; Application No. D-9176]

Exemption

    The restrictions of sections 406(a)(1)(A) and 406(b)(2) of the Act 
and the sanctions resulting from the application of section 4975 of the 
Code, by reason of section 4975(c)(1)(A) of the Code, shall not apply 
to:
    (1) The purchase and sale of stocks between Index Funds and/or 
Model-Driven Funds (collectively, the Funds); and
    (2) The purchase and sale of stocks between the Funds and various 
Large pension plans or other large accounts (collectively, the Large 
Accounts) pursuant to portfolio restructuring programs of the large 
Accounts, provided that the following conditions are met:
    (a) The Index or Model-Driven Fund is based on an index which 
represents the investment performance of a specific segment of the 
public market for equity securities in the United States and/or foreign 
countries. The organization creating and maintaining the index must be
    (1) Engaged in the business of providing financial information, 
evaluation, advice or securities brokerage services to institutional 
clients,
    (2) A publisher of financial news of information, or
    (3) A public stock exchange or association of securities dealers. 
The index must be created and maintained by an organization independent 
of Northern Trust and its affiliates. The index must be a generally 
accepted standardized index of securities which is not specifically 
tailored for the use of Northern Trust or its affiliates.
    (b) The price of the stock is set at the closing price for that 
stock on the day of trading; unless the stock was added to or deleted 
from an index underlying a Fund or Funds after the close of trading, in 
which case the price will be the opening price for that stock on the 
next business day after the announcement of the addition or deletion.
    (c) The transaction takes place within three business days of the 
``triggering event'' giving rise to the cross-trade opportunity. A 
``triggering event'' is defined as:
    (1) A change in the composition or weighing of the index underlying 
a Fund by the organization creating and maintaining the index;
    (2) A change in the composition or weighting of a portfolio used 
for Model-Driven Fund which results from an independent fiduciary's 
decision to exclude certain stocks or types of stocks from the Fund 
even though such stocks are part of the index used by the Fund;
    (3) A change in the overall level of investment in a Fund as a 
result of investments and withdrawals made on the Fund's regularly 
scheduled ``opening date''; provided, however, that Northern Trust does 
not change the level of investment in the Fund through investments or 
withdrawals of assets of any employee benefit plan maintained by 
Northern Trust or its affiliates (the NTC Plans) for which Northern 
Trust has investment discretion; or
    (4) A declaration by Northern Trust (recorded on Northern Trust's 
records) that a ``triggering event'' has occurred which will be made 
upon an accumulation of cash in a Fund attributable to dividends on 
and/or tender offers for portfolio securities equal to not more than .5 
percent of the Fund's total value.
    (d) A Fund does not participate in a direct cross-trade if the 
assets of any NTC Plan in the Fund exceed 10 percent of the total 
assets of the Fund.
    (e) Prior to any proposed cross-trading by a Fund, Northern Trust 
provides to each employee benefit plan which invests in a Fund 
information which describes the existence of the cross-trading program, 
the ``triggering events'' which will create cross-trade opportunities, 
the pricing mechanism that will be utilized for stocks purchased or 
sold by the Funds, and the allocation methods and other procedures 
which will be implemented by Northern Trust for its cross-trading 
practices. Any such employee benefit plan which subsequently invests in 
a Fund shall be provided the same information prior to or immediately 
after the plan's initial investment in a Fund.
    (f) With respect to transactions involving a Large Account:
    (1) It has assets in excess of $50 million.
    (2) Fiduciaries of the Large Account who are independent of 
Northern Trust are, prior to any cross-trade transactions, fully 
informed in writing of the cross-trade technique and provide advance 
written authorization of such transactions.
    Such authorization shall be terminable at will by the Large Account 
upon receipt by Northern Trust of written notice of termination. A form 
expressly providing an election to terminate the authorization, with 
instructions on the use of the form, must be supplied to the 
authorizing Large Account fiduciary concurrent with the receipt of the 
written information describing the cross-trading program. The 
instructions for such forms must include the following information:
    (i) The authorization is terminable at will by the Large Account, 
without penalty to the Large Account, upon receipt by Northern Trust of 
written notice from the authorizing Large Account fiduciary; and
    (ii) Failure to return the termination form will result in the 
continued authorization of Northern Trust to engage in cross-trade 
transactions on behalf of the Large Account.
    (3) Within 45 days of the completion of the Large Account's 
portfolio restructuring program such fiduciaries shall be fully 
apprised in writing of the results of such transactions. In addition, 
if the restructuring program takes longer than three months to 
complete, interim reports of the results of all transactions will be 
made within 30 days of the end of each three-month period.
    (4) Such Large Account transactions occur only in situations where 
Northern Trust has been authorized to restructure all or a portion of 
the Large Account's portfolio into an Index or Model-Driven Fund 
(including a separate account based on an index or computer model) or 
to act as a ``trading adviser'' in carrying out the liquidation or 
restructuring of the Large Account's equity portfolio.
    (g) Northern Trust receives no additional direct or indirect 
compensation as a result of the cross-trade transaction.
    (h) In the event that the number of shares of a particular stock 
which all of the Funds or Large Accounts propose to sell on a given day 
is less than the number of shares of such stock which all of the Funds 
or the Large Accounts propose to buy, or vice versa, the direct cross-
trade opportunity must be allocated among potential buyers or sellers 
on a pro rata basis.
    (i) Northern Trust maintains or causes to be maintained for a 
period of six years from the date of the transaction the records 
necessary to enable the persons described in paragraph (j) to determine 
whether the conditions of this exemption have been met, except that a 
prohibited transaction will not be considered to have occurred if, due 
to circumstances beyond the control of Northern Trust or its 
affiliates, the records are lost or destroyed prior to the end of the 
six-year period.
    (j)(1) Except as provided in paragraph (j)(2) and notwithstanding 
any provisions of section 504 (a)(2) and (b) of the Act, the records 
referred to in paragraph (i) are unconditionally available at their 
customary location for examination during normal business hours by--
    (i) Any duly authorized employee or representative of the 
Department or the Internal Revenue Service,
    (ii) Any fiduciary of a plan participating in an Index or Model-
Driven Fund who has authority to acquire or dispose of the interests of 
the plan, or any duly authorized employee or representative of such 
fiduciary,
    (iii) Any contributing employer to any plans participating in an 
Index or Model-Driven Fund or any duly authorized employee or 
representative of such employer, and
    (iv) Any participant or beneficiary of any plan participating in an 
Index or Model-Driven Fund, or any duly authorized employee or 
representative of such participant or beneficiary.
    (2) None of the persons described in subparagraphs (ii) through 
(iv) of this paragraph (j) shall be authorized to examine trade secrets 
of Northern Trust, any of its affiliates, or commercial or financial 
information which is privileged or confidential.

Definitions

    For purpose of this exemption--
    (a) The term ``Index Fund'' means any investment fund, account or 
portfolio sponsored, maintained and/or trusteed by Northern Trust or an 
affiliate in which one or more investors invest which is designed to 
replicate the capitalization-weighted composition of a stock index 
which satisfies condition (a) above.
    (b) The term ``Model-Driven Fund'' means any investment fund, 
account or portfolio sponsored, maintained and/or trusteed by Northern 
Trust or an affiliate in which one or more investors invest which is 
based on computer models using prescribed objective criteria to 
transform an independent third-party stock index which satisfies 
condition (a) above.
    (c) The term ``Large Account'' means a trust or other fund that is 
exempt from taxation under section 501 of the Code, and which has 
assets of at least $50 million. A trust that is exempt from taxation 
under section 501(a) of the Code may aggregate the assets of one or 
more employee benefit plans of a single employer or a controlled-group 
of employers the assets of which are invested on a commingled basis 
(e.g. through a master trust) for purposes of satisfying the $50 
million requirement.
    (d) The term ``NTC'' means an ``employee pension benefit plan'' (as 
defined in section 3(2) of the Act) maintained by Northern Trust or any 
of its affiliates.
    (e) The term ``opening date'' means the regularly scheduled date on 
which investments in or withdrawals from an Index or Model-Driven Fund 
may be made.
    (f) The term ``trading adviser'' means a person whose role is 
limited to arranging a Large Account-initiated liquidation or equity 
restructuring within a stated time so as to minimize transaction costs.
    For a more complete statement of the facts and representations 
supporting the Department's decision to grant this exemption, refer to 
the notice of proposed exemption published on December 10, 1993 at 58 
FR 64974.

    Written Comment and Modifications: The Department received one 
comment letter from the applicant regarding the notice of proposed 
exemption (the notice).
    The applicant's letter concerns the language of condition (c)(3) of 
the notice. Condition (c)(3) of the notice inadvertently states that a 
``triggering event'' will occur due to a change in the overall level of 
investment in a Fund as a result of investments and withdrawals made on 
the Fund's regularly scheduled opening date which are not directed by 
Northern Trust. The applicant requests that the phrase ``* * * which 
are not directed by Northern Trust'' be modified to reflect the fact 
that a change in the overall level of investment in a Fund cannot be 
directed by Northern Trust in connection with the assets of any NTC 
Plan for which Northern Trust exercises investment discretion. In this 
regard, the Department has agreed to the applicant's requested 
modification by deleting the phrase ``* * * which are not directed by 
Northern Trust'' and adding the following:

    * * * provided, however, that Northern Trust does not change the 
level of investment in the Fund through investments or withdrawals 
of assets of any employee benefit plan maintained by Northern Trust 
or its affiliates (the NTC Plans) for which Northern Trust has 
investment discretion.

    In addition, with respect to the allocation of cross-trades by 
Northern Trust, the Department has added a new condition (h) to the 
Notice which conforms to representations previously made by the 
applicant (see Paragraph 10 of the Summary of Facts and Representations 
in the notice). As stated above, condition (h) requires that if the 
number of shares of a particular stock which all of the Funds or Large 
Accounts propose to sell on a given day is less than the number of 
shares of such stock which all of the Funds or the Large Accounts 
propose to buy, or vice versa, the direct cross-trade opportunity will 
be allocated among potential buyers or sellers on a pro rata basis. 
This condition ensures that each of the Funds and/or Large Accounts 
will have an opportunity to participate on a proportional basis in all 
cross-trade transactions during the operation of the cross-trading 
program.
    The following example illustrates how the pro rata allocation would 
work. Suppose there are four Funds that, in order to more accurately 
replicate the relevant third-party index, need to purchase shares of 
XYZ Corp. stock in the following amounts: 5,000, 10,000, 15,000, and 
20,000. Also assume that one of the Large Accounts needs to sell 10,000 
shares of XYZ Corp. stock. Under the pro rata system, the cross-trades 
would be allocated as follows:

------------------------------------------------------------------------
                                          Amount     Amount   Percentage
                Buyer                    needed      rec'd     of need  
------------------------------------------------------------------------
1.....................................      5,000      1,000          20
2.....................................     10,000      2,000          20
3.....................................     15,000      3,000          20
4.....................................     20,000      4,000          20
  Total:..............................     50,000     10,000  ..........
------------------------------------------------------------------------

    Accordingly, after consideration of the entire record, the 
Department has determined to grant the exemption as modified.
    For Further Information Contact: Mr. E.F. Williams of the 
Department, telephone (202) 219-8194. (This is not a toll-free number.)

Wally L. Morgan IRA (the IRA) Located in Dallas, Texas

[Prohibited Transaction Exemption 94-37; Exemption Application No. D-
9581]

Exemption

    The sanctions resulting from the application of section 4975 of the 
Code, by reason of section 4975(c)(1)(A) through (E) of the Code, shall 
not apply to the proposed cash sale of three 50% undivided interests 
(the Interests) in each of three parcels of unimproved land by the IRA 
to Wally L. Morgan (Mr. Morgan), a disqualified person with respect to 
the IRA; provided that the following conditions are satisfied\1\:
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    \1\Pursuant to 29 CFR 2510.3-2(d), there is no jurisdiction with 
respect to the IRA under Title I of the Act. However, there is 
jurisdiction under Title II of the Act pursuant to section 4975 of 
the Code.
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    (a) The proposed sale will be a one-time cash transaction;
    (b) The IRA in this transaction will receive the aggregate current 
fair market value of the three 50% Interests as established at the time 
of the sale by an independent qualified appraiser;
    (c) The IRA will pay no expenses associated with the sale; and
    (d) Mr. Morgan as the sponsor of the IRA will be the only 
individual affected by the transaction.
    For a more complete statement of the facts and representations 
supporting the Department's decision to grant this exemption refer to 
this notice of proposed exemption published on March 8, 1994 at 59 FR 
10838/10839.
    For Further Information Contact; Ekaterina A. Uzlyan of the 
Department at (202) 219-8883. (This is not a toll-free number.)

General Information

    The attention of interested persons is directed to the following:
    (1) The fact that a transaction is the subject of an exemption 
under section 408(a) of the Act and/or section 4975(c)(2) of the Code 
does not relieve a fiduciary or other party in interest or disqualified 
person from certain other provisions to which the exemptions does not 
apply and the general fiduciary responsibility provisions of section 
404 of the Act, which among other things require a fiduciary to 
discharge his duties respecting the plan solely in the interest of the 
participants and beneficiaries of the plan and in a prudent fashion in 
accordance with section 404(a)(1)(B) of the Act; nor does it affect the 
requirement of section 401(a) of the Code that the plan must operate 
for the exclusive benefit of the employees of the employer maintaining 
the plan and their beneficiaries;
    (2) These exemptions are supplemental to and not in derogation of, 
any other provisions of the Act and/or the Code, including statutory or 
administrative exemptions and transactional rules. Furthermore, the 
fact that a transaction is subject to an administrative or statutory 
exemption is not dispositive of whether the transaction is in fact a 
prohibited transaction; and
    (3) The availability of these exemptions is subject to the express 
condition that the material facts and representations contained in each 
application are true and complete and accurately describe all material 
terms of the transaction which is the subject of the exemption. In the 
case of continuing exemption transactions, if any of the material facts 
or representations described in the application change after the 
exemption is granted, the exemption will cease to apply as of the date 
of such change. In the event of any such change, application for a new 
exemption may be made to the Department.

    Signed at Washington, DC, this 19th day of April, 1994.
Ivan Strasfeld,
Director of Exemption Determinations, Pension and Welfare Benefits 
Administration, U.S. Department of Labor.
[FR Doc. 94-9829 Filed 4-21-94; 8:45 am]
BILLING CODE 4510-29-P