[Federal Register Volume 59, Number 100 (Wednesday, May 25, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-12716]


[[Page Unknown]]

[Federal Register: May 25, 1994]


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DEPARTMENT OF LABOR

Pension and Welfare Benefits Administration
[Application No. D-9661, et al.]

 

Proposed Exemptions; Novo Nordisk Bioindustrials, Inc. 401(k) 
Thrift Plan, et al.

AGENCY: Pension and Welfare Benefits Administration, Labor.

ACTION: Notice of proposed exemptions.

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SUMMARY: This document contains notices of pendency before the 
Department of Labor (the Department) of proposed exemptions 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).

Written Comments and Hearing Requests

    Unless otherwise stated in the Notice of Proposed Exemption, all 
interested persons are invited to submit written comments, and with 
respect to exemptions involving the fiduciary prohibitions of section 
406(b) of the Act, requests for hearing within 45 days from the date of 
publication of this Federal Register Notice. Comments and request for a 
hearing should state: (1) The name, address, and telephone number of 
the person making the comment or request, and (2) the nature of the 
person's interest in the exemption and the manner in which the person 
would be adversely affected by the exemption. A request for a hearing 
must also state the issues to be addressed and include a general 
description of the evidence to be presented at the hearing. A request 
for a hearing must also state the issues to be addressed and include a 
general description of the evidence to be presented at the hearing.

ADDRESSES: All written comments and request for a hearing (at least 
three copies) should be sent to the Pension and Welfare Benefits 
Administration, Office of Exemption Determinations, room N-5649, U.S. 
Department of Labor, 200 Constitution Avenue, NW., Washington, DC 
20210. Attention: Application No. stated in each Notice of Proposed 
Exemption. The applications for exemption and the comments received 
will be available for public inspection in the Public Documents Room of 
Pension and Welfare Benefits Administration, U.S. Department of Labor, 
room N-5507, 200 Constitution Avenue, NW., Washington, DC 20210.

Notice to Interested Persons

    Notice of the proposed exemptions will be provided to all 
interested persons in the manner agreed upon by the applicant and the 
Department within 15 days of the date of publication in the Federal 
Register. Such notice shall include a copy of the notice of proposed 
exemption as published in the Federal Register and shall inform 
interested persons of their right to comment and to request a hearing 
(where appropriate).

SUPPLEMENTARY INFORMATION: The proposed exemptions were requested in 
applications filed pursuant to section 408(a) of the Act and/or section 
4975(c)(2) of the Code, and in accordance with procedures set forth in 
29 CFR part 2570, subpart B (55 FR 32836, 32847, August 10, 1990). 
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 requested 
to the Secretary of Labor. Therefore, these notices of proposed 
exemption are issued solely by the Department.
    The applications contain representations with regard to the 
proposed exemptions which are summarized below. Interested persons are 
referred to the applications on file with the Department for a complete 
statement of the facts and representations.

Novo Nordisk Bioindustrials, Inc. 401(k) Thrift Plan (the Plan) Located 
in Danbury, Connecticut; Proposed Exemption

[Application No. D-9661]

    The Department is considering granting an exemption under the 
authority of section 408(a) of the Act and section 4975(c)(2) of the 
Code and in accordance with the procedures set forth in 29 CFR part 
2570, subpart B (55 FR 32836, 32847, August 10, 1990). If the exemption 
is granted, the restrictions of sections 406(a), 406(b)(1) and (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) through (E) of the 
Code shall not apply to (1) the proposed interest-free loan to the Plan 
(the Loan) by Novo Nordisk Bioindustrials, Inc. (the Employer), a party 
in interest with respect to the Plan, and (2) the Plan's potential 
repayment of the Loan upon the receipt by the Plan of payments under 
Guaranteed Investment Contract No. GA-4607 (the GIC) issued by Mutual 
Benefit Life Insurance Company (MBL); provided the following conditions 
are satisfied:
    (A) No interest or expenses are paid by the Plan in connection with 
the proposed transaction;
    (B) The Loan is made to reimburse the Plan for amounts invested 
with MBL under the terms of the GIC;
    (C) The Loan will be repaid only out of amounts paid to the Plan by 
MBL, its successors, or any other responsible third parties; and
    (D) Repayment of the Loan is waived with respect to the amount by 
which the Loan exceeds GIC proceeds.

Summary of Facts and Representations

    1. The Employer, a New York corporation with its corporate 
headquarters in Danbury, Connecticut, is a wholly owned subsidiary of 
Novo Nordisk A/S, a Danish Corporation. The Plan is a profit sharing 
plan which includes a cash or deferred arrangement under section 401(k) 
of the Code, and which provides for Employer matching contributions and 
additional Employer discretionary profit sharing contributions. The 
Plan provides for participant direction with respect to employee 
contributions and Employer matching contributions to the Plan. The Plan 
participants have the option of investing in any of five investment 
funds: the GIC Fund, the First Union Managed Bond Portfolio, the First 
Union Balanced Portfolio, The Diversified Equity Fund, and the Novo 
American Depository Receipt Fund. Participants have the right to change 
their investments within and among the funds on a daily basis, except 
that participants may no longer transfer amounts into or out of the GIC 
Fund to the extent that their account balance in that Fund is 
attributable to the GIC issued by MBL. As of December 31, 1993, the 
Plan had approximately 225 participants and total assets of 
approximately $5,600,000. The Plan's trustee is First Union Bank of 
North Carolina.
    2. The applicant represents that the GIC acquired from MBL was 
effective with respect to amounts deposited during 1987. The terms of 
the GIC provided for interest to be credited at the rate of 8.10% per 
annum until December 31, 1988, and thereafter at the rate of 7.55% per 
annum until the maturity date of December 31, 1991.
    3. On July 16, 1991, MBL was placed into rehabilitation proceedings 
by the New Jersey Commissioner of Insurance. Consequently, MBL has 
suspended payments on its guaranteed investment contracts, including 
the GIC held by the Plan. This situation has prevented participants 
from exercising their rights under the Plan to request distributions, 
loans, and investment transfers with respect to amounts currently 
invested in the GIC.1 As of December 31, 1991, the GIC had a total 
accumulated book value of $578,916.34.2 The Employer seeks an 
exemption to permit the Employer to make the Loan to the Plan in the 
amount due the Plan under the GIC, plus interest through the date of 
the Loan. The Loan will be made pursuant to a written agreement between 
the Employer and the Plan (the Agreement) incorporating the terms of 
the extension of credit and its repayment. The Employer represents that 
it wishes to enter into the proposed transaction in order to protect 
the Plan participants from the effects of a prolonged rehabilitation 
process and from any potential loss resulting from MBL's inability to 
meet its obligations under the GIC. The Employer further represents 
that the Loan will enable the Plan to make timely payments under the 
GIC and, therefore, enable the Plan participants to exercise their 
rights under the Plan to request distributions, loans, and investment 
transfers with respect to amounts currently invested in the GIC. The 
Employer also represents that the Loan will be non-interest bearing and 
the Plan will not incur any expenses in connection with the proposed 
transaction.
---------------------------------------------------------------------------

    \1\The Department notes that the decisions to acquire and hold 
the GIC are governed by the fiduciary responsibility requirements of 
Part 4, Subtitle B, Title I of the Act. In this regard, the 
Department is not herein proposing relief for any violations of Part 
4 which may have arisen as a result of the acquisition and holding 
of the GIC issued by MBL.
    \2\Total accumulated book value is defined as the amount 
deposited under the GIC, plus interest at the guaranteed interest 
rate.
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    4. The proposed Loan will be made in one lump-sum payment equal to 
the amounts deposited under the GIC, adjusted as follows: (1) Interest 
is calculated at the guaranteed interest rate under the terms of the 
GIC until December 31, 1991, the maturity date; and (2) the post-
maturity interest rates will be calculated as follows:

------------------------------------------------------------------------
                                             On first                   
                                           $300,000 of7/  On amount over
                                           16/91 value       $300,000   
------------------------------------------------------------------------
1992....................................            5.75            4.00
1993....................................            5.25            3.50
1/1/94-Loan Date\3\.....................            5.10            3.50
                                                                        
------------------------------------------------------------------------
\3\The Employer represents that the Loan will be made as soon as        
  administratively practicable following the publication in the Federal 
  Register of the final Grant and the execution by the Internal Revenue 
  Service of a favorable closing agreement covering the tax and         
  qualified plan issues involved in the proposed extension of credit to 
  the Plan.                                                             

It is represented that the proposed rate of interest for periods after 
the maturity date are the rates that would apply to the GIC for those 
periods according to the proposed plan of rehabilitation set forth by 
the Superior Court of New Jersey. Any proceeds paid from the GIC and 
received by the Plan on or before the Loan date will be subtracted from 
the book value.
    5. Repayment of the Loan under the Agreement is limited to payments 
made to the Plan by or on behalf of MBL or its successor. No other Plan 
assets will be available for repayment of the Loan. If the payments by 
or on behalf of MBL are not sufficient to fully repay the Loan, the 
Agreement provides that the Employer will have no recourse against the 
Plan, or against any participants or beneficiaries of the Plan, for the 
unpaid amount.
    6. In summary, the applicant represents that the proposed 
transaction satisfies the criteria of section 408(a) of the Act 
because: (1) The Loan will enable the Plan to recover the total 
accumulated book value of the GIC as of the date of maturity, plus 
interest thereafter; (2) The Plan will pay no interest nor incur any 
expenses with respect to the Loan; (3) Repayment of the Loan will be 
restricted to payments made by or on behalf of MBL and no other Plan 
assets will be involved; and (4) Repayment of the Loan will be waived 
to the extent the Plan recoups less from the payments by or on behalf 
of MBL than the total amount of the Loan.

FOR FURTHER INFORMATION CONTACT: Ms. Virginia J. Miller of the 
Department, telephone (202) 219-8971. (This is not a toll-free number.)

Hollingsworth & Vose Company Savings Plan (the Plan) Located in East 
Walpole, Massachusetts; Proposed Exemption

[Application No. D-9677]

    The Department is considering granting an exemption under the 
authority of section 408(a) of the Act and section 4975(c)(2) of the 
Code and in accordance with the procedures set forth in 29 CFR Part 
2570, Subpart B (55 FR 32836, 32847, August 10, 1990). If the exemption 
is granted, the restrictions of sections 406(a), 406(b)(1) and (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) through (E) of the 
Code, shall not apply to the August 26, 1992 loan (the Loan) of 
$188,000 to the Plan by Hollingsworth & Vose Company (H&V), provided 
the following conditions were satisfied: (a) No interest or expense was 
incurred by the Plan with respect to the Loan; (b) the Loan enabled the 
Plan to effect the transfer of amounts held in participant accounts to 
new investments made available under the Plan; (c) accounts transferred 
from the Plan's GIC Fund were credited with amounts representing the 
allocable principal deposit in the GIC Fund plus accrued interest at 
the GIC Fund rate; (d) accounts which remained invested in the GIC Fund 
continued to receive interest at the same rate; and (e) repayment of 
the Loan was restricted to amounts held in or allocated to the GIC 
Fund, and no other plan assets were used for that purpose. Effective 
Dates: If the proposed exemption is granted, the exemption will be 
effective from August 26, 1992 through November 10, 1992.

Summary of Facts and Representations

    1. H&V is a corporation organized under the laws of the 
Commonwealth of Massachusetts engaged in the manufacture of technical 
and industrial papers and nonwoven fabrics. The Plan is a profit 
sharing plan which contains a cash or deferred arrangement under 
section 401(k) of the Code. The Plan is administered by the Savings 
Plan Committee (the Committee) of H&V. Under the Plan, participating 
employees make elective contributions pursuant to salary reduction 
agreements. H&V makes matching contributions not in excess of 6% of the 
participant's compensation. The Plan had approximately 47 participants 
who were affected by the subject transaction, and at the time of the 
transaction had assets with an approximate aggregate fair market value 
of $2,767,369. The Plan currently has assets of approximately 
$4,361,700.
    2. Contributions under the Plan are allocated to the accounts of 
individual participants (the Accounts). The Accounts are invested at 
the direction of participants in one or more of the investment options 
available under the Plan. Investment directions may be made or changed 
as of January 1 and July 1 of each Plan year and remain in effect until 
changed by the participant.
    3. Prior to July, 1992, two investment funds were available to 
participants, the Guaranteed Investment Contract Fund (the GIC Fund) 
and the Fidelity Equity Income Fund. The investments held in the GIC 
Fund at that time consisted of four contracts: (i) Fidelity Group 
Trust, at 8.33%, maturing on March 31, 1993; (ii) Vanguard Fixed Rate 
GIC Trust II-90, at 8.17%, maturing March 31, 1993; (iii) Vanguard 
Fixed Rate GIC Trust II-91, at 7.45%, maturing on March 31, 1994; and 
(iv) Principal Group Annuity Contract No. GA 4-3031, at 6.53%, maturing 
on March 31, 1995. Participants who invested in the GIC Fund received 
interest at a combined rate calculated as the average of the rates on 
open GICs held in the Fund, weighted in proportion to the amounts 
allocated to each such GIC.
    4. In September, 1991, the Committee began discussing the 
possibility of expanding investment options under the Plan in order to 
give participants greater flexibility and diversity of choice among 
investments with respect to appropriate levels of risk and return. On 
April 16, 1992, the Committee resolved to offer four investment 
options, effective as of July 1, 1992. These were to be the GIC Fund, 
the Fidelity Equity Income Fund and two additional options, the 
Fidelity Growth and Income Fund and the Value Line U.S. Government 
Securities Fund. Participants were informed of the additional options 
by notice from the Committee on May 26, 1992.
    5. The Committee subsequently received and processed directions 
from participants for changes in investments as of the July 1, 1992 
change date. The new investment directions required the transfer of 
$258,572 held in the GIC Fund, or approximately 10% of Plan assets, to 
other investment options.
    6. Because of restrictions under the GICs, however, the Plan was 
unable to redeem its interest in the contracts to effect the transfer 
of amounts to other investments as directed by participants. 
Specifically, under the Principal Group GIC, Principal could terminate 
the contract if withdrawals were made prior to the maturity date. H&V 
understood that similar restrictions applied under the other GICs held 
in the GIC Fund (although in fact there were no comparable restrictions 
on the Vanguard GICs).
    7. To enable participants whose Accounts were invested in the GIC 
Fund to make use of the new investment options and to protect 
participants from incurring penalties for premature withdrawals from 
the GICs, the Committee resolved to advance funds to the Plan. On 
August 26, 1992, $188,000 was wire transferred by H&V to the Plan. The 
$188,000 was invested in equity funds in accordance with the directions 
of those participants whose account balances in the GIC Fund could not 
otherwise be transferred.
    8. Subsequent to the advance of funds, H&V was advised that the 
transaction might constitute a prohibited transaction under section 406 
of the Act and section 4975 of the Code. H&V therefore took immediate 
action in an attempt to put the Plan in the position in which it would 
have been had the transaction not occurred. The Committee determined 
that under the Vanguard GICs, funds could be transferred at that time 
without penalties to participants. Allocations to the GIC Fund made by 
participants in September and October, 1992 were applied, together with 
a partial liquidation principally of the Vanguard Fixed Rate Trust II-
91, to repay to H&V the amount that had been advanced to the Plan. 
Specifically, $163,548 was repaid to H&V on November 10, 1992, and 
$24,452 was retained by the Plan and used as an offset for 
contributions which would have otherwise been made by H&V.
    9. Under the terms of the Plan, the amounts repaid to H&V would 
have been invested in the open GICs held in the GIC Fund, had the Loan 
not been made. The money that was in the GIC Fund prior to the Loan 
remained in the GIC Fund because it could not be transferred out 
without penalty. Thus, the subsequent allocations could be used to 
repay the Loan to H&V, and the GIC Fund remained in the same position 
it would have been in had the Loan by H&V not been made. The entire 
effect of the Loan and repayment to H&V was thus to provide liquidity 
to the GIC Fund in order to make transfers to other investment funds as 
directed by participants. The transaction was corrected within 90 days. 
No interest or other expense was paid by the Plan. Participants who did 
not transfer amounts from the GIC Fund as of the July 1, 1992 change 
date continued to receive the same return on their investment in the 
Fund. Participants who later invested in the GIC Fund received the same 
return they would have received if the subject transaction had not 
occurred.
    10. In summary, the applicant represents that the subject 
transaction satisfied the criteria contained in section 408(a) of the 
Act for the following reasons: (a) The Loan enabled the Plan to effect 
the transfer of amounts held in participant Accounts without penalty to 
new investments made available under the Plan; (b) Accounts transferred 
from the GIC Fund were credited with amounts representing the allocable 
principal deposit in the fund plus accrued interest at the Fund rate; 
(c) Accounts which remained invested in the GIC Fund continued to 
receive interest at the same rate; (d) no interest or other expense was 
incurred by the Plan with respect to the Loan; (e) the applicant undid 
the Loan as soon as it realized that the Loan constituted a prohibited 
transaction, with repayment of the loan taking place within 90 days of 
the making of the Loan; and (f) repayment of the loan was restricted to 
amounts held in or allocated to the GIC Fund, and no other Plan assets 
were used for that purpose.

FOR FURTHER INFORMATION CONTACT: Gary H. Lefkowitz of the Department, 
telephone (202) 219-8881. (This is not a toll-free number.)

Western Capital Investment Corporation Employees' Retirement Fund (the 
Plan) Located in Denver, CO ; Proposed Exemption

[Application No. D-9489]

    The Department is considering granting an exemption under the 
authority of section 408(a) of the Act and section 4975(c)(2) of the 
Code and in accordance with the procedures set forth in 29 CFR part 
2570, subpart B (55 FR 32836, 32847, August 10, 1990.) If the exemption 
is granted, the restrictions of sections 406(a), 406(b)(1) and (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) through (E) of the 
Code, shall not apply to the cash sale by the Plan, on December 27, 
1990, of certain of its assets (the Assets) to Bank Western, a Federal 
Savings Bank (Bank Western), the principal subsidiary of the Plan's 
former sponsor and a party in interest with respect to the Plan.
    The proposed exemption is conditioned on the following 
requirements: (1) The sale represented a one-time transaction for cash; 
(2) the sales price for each Asset was based upon its fair market value 
as determined by a qualified, independent appraisal; (3) the Plan did 
not pay any fees or commissions in connection with the sale; and (4) 
CNB files a Form 5330 with the Internal Revenue Service (the Service) 
and pays any applicable excise taxes that may be due on any of the 
Assets within 90 days of the publication in the Federal Register of the 
notice granting the exemptive relief herein.

EFFECTIVE DATE: If granted, this proposed exemption will be effective 
December 27, 1990.

Summary of Facts and Representations

    1. The Plan is a profit sharing plan with section 401(k) features. 
As of December 31, 1990, the Plan had net assets available for benefits 
of $13,393,318 and 709 participants. The trustees of the Plan (the 
Trustees) and the decisionmakers with respect to Plan investments as of 
December 31, 1990 were David G. Brewick, Robert P. Easterly, James C. 
Ford, Robert B. Stailey and Deloris P. Wolf.4
---------------------------------------------------------------------------

    \4\The Plan's current trustee and decisionmaker with respect to 
Plan investments is First Trust National Association.
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    2. The Plan was formerly sponsored by Western Capital Investment 
Corporation (WCIC) of Denver, Colorado and its affiliated companies. 
WCIC was a unitary savings and loan holding company whose primary asset 
was the sole ownership of Bank Western. On December 18, 1992, WCIC was 
merged into CNB, a wholly owned subsidiary of First Bank System, Inc. 
(First Bank System) of Minneapolis, Minnesota. As a result of the 
merger, the employees of Bank Western currently participate in the 
First Bank System employee benefit plans, including its retirement 
plans. It is anticipated that when First Bank System receives a 
favorable determination letter with respect to amendments to the Plan, 
it will be merged into the First Bank System 401(k) Plan.
    3. Formerly included in the investment portfolio of the Plan were 
the following Assets having an aggregate cost in excess of $5.7 
million:
    a. A $2,537,594 Investment in Government National Mortgage 
Association Pools (the GNMA Pools). 

----------------------------------------------------------------------------------------------------------------
                                    Amount of      Income     Servicing                                         
             Pool No.               Investment    received       fees                     Sellers               
----------------------------------------------------------------------------------------------------------------
                A                                                                                               
                                                                                                                
058683...........................      $53,063  ...........  ...........                                        
126677...........................       13,512  ...........  ...........                                        
128606...........................       44,280      $22,213           $0  Merrill Lynch Govt. Securities Inc.   
                                                                                                                
                B                                                                                               
                                                                                                                
1131.............................      250,000      169,421            0  Bosworth Sullivan & Co., Inc.         
                                                                                                                
                C                                                                                               
                                                                                                                
1326.............................    1,000,000       84,025            0  Bank of New York.                     
                                                                                                                
                D                                                                                               
                                                                                                                
103497...........................      118,302       31,998  ...........                                        
131756...........................       48,244       11,201  ...........                                        
000460...........................      557,576      194,777  ...........  Drexel, Burnham, Lambert.             
000479...........................      452,617      171,783           0                                         
                                  ---------------------------------------                                       
      Totals.....................   $2,537,594     $685,418          $0                                         
----------------------------------------------------------------------------------------------------------------

    The Plan acquired its interests in the GNMA Pools between 1972 and 
1986 from unrelated parties for a total purchase price of $2,537,594. 
Each of the GNMA Pool certificates featured monthly pass-throughs of 
principal and interest. Such investments had interest rates ranging 
from 6\1/2\ percent to 12 percent and were to mature between January 1, 
2002 and December 20, 2019. Through December 31, 1990, the Plan 
received total income of $685,417 with respect to its interests in the 
GNMA Pools. In addition, the Plan paid no servicing fees in connection 
with these investments nor were any restrictions placed on their sale 
or transfer.
    b. A $75,000 Investment in a Merrill Lynch Collateralized Mortgage 
Obligation III-A (the CMO). 

------------------------------------------------------------------------
                                                   Income     Servicing 
             Amount of investment                 received       fees   
------------------------------------------------------------------------
$75,000.......................................       $7,688          $0 
------------------------------------------------------------------------

    In January 1987, the Plan acquired an interest in the CMO for 
$75,000. The CMO was secured by single family residential mortgage 
loans, carried a stated interest rate of 7 percent per annum and had a 
maturity date of September 20, 2016. Through December 31, 1990, the 
Plan received total income of $7,688 with respect to the CMO 
investment. In addition, the Plan paid no servicing fees in connection 
with this investment nor were there any restrictions placed on the sale 
or transfer of the CMO.
    c. A $29,027 Investment in Two Mobile Home Loans (the Mobile Home 
Loans). 

------------------------------------------------------------------------
                                                   Income     Servicing 
               Loan                 Investment    received       fees   
------------------------------------------------------------------------
Lorenzo..........................      $11,067  ...........  ...........
Gruber...........................       17,960  ...........  ...........
                                  --------------------------------------
      Total......................      $29,027      $14,423      $1,571 
------------------------------------------------------------------------

    The Plan acquired its first Mobile Home Loan from Shelter America 
Corporation (SAC), a party in interest, on April 25, 1985. The 
acquisition price paid by the Plan was $11,067. This amount reflected 
the outstanding principal balance of the loan. The borrowers, Andrew 
and Katherine Lorenzo, were not parties in interest. When purchased by 
the Plan, the Lorenzo Mobile Home Loan carried an interest rate of 13 
percent per annum and a maturity of 144 months. The collateral for the 
Lorenzo Mobile Home Loan was a first lien on a 1977 Liberty, Liberator 
(14 x 60 foot) mobile home. No restrictions were placed on the sale or 
transfer of this loan.
    The Plan acquired its second Mobile Home Loan from SAC on July 8, 
1986 for $17,960, which represented the outstanding principal balance 
of such loan. The borrowers, James and Lauretta Gruber, were unrelated 
parties. At the time of purchase by the Plan, the Gruber Mobile Home 
Loan had an outstanding balance of $17,960 and bore interest at the 
coupon rate of 12.95 percent. The loan had a maturity of 180 months and 
was secured by a first lien interest on a Central Homes (26 x 44 foot) 
double-wide mobile home. The Plan could sell or transfer this loan 
without any restrictions.5
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    \5\The applicant states that no documentation exists which would 
define the investment criteria used by the Plan's Trustees in 
selecting the Mobile Home Loans as Plan investments. The applicant 
represents that at the time these investments were made, both Bank 
Western and SAC were actively investing in mobile home loans such 
that the Trustees thought these loans would be sound investments for 
the Plan due to their high rates of return.
    Accordingly, the Department notes that the decisions by the 
Trustees to have the Plan acquire and hold the Mobile Home Loans are 
governed by the fiduciary responsibility requirements of part 4, 
Subtitle B, Title I of the Act. In this regard, the Department is 
not proposing, nor is the applicant requesting exemptive relief for 
any violations of part 4 which may have arisen as a result of the 
Plan's acquisition and holding of the Mobile Home Loans (see 
Representation 7).
---------------------------------------------------------------------------

    The applicant notes that while the Plan held the Mobile Home Loans, 
the Lorenzos and the Grubers were occasionally delinquent. However, the 
applicant explains that, in all instances, the borrowers quickly 
corrected these delinquencies and the loans were current at the time of 
the sale transaction described herein.
    The Plan received total investment income of $14,423 in connection 
with its investment in the Mobile Home Loans. The Plan also paid 
servicing fees to SAC with respect to the administration of the Mobile 
Home Loans. Such servicing fees were based on the receipt of a flat 11 
percent interest rate. Income received above that rate was retained by 
SAC. Through December 31, 1988, the Plan recorded servicing fees of 
$1,571. Following this date, the reporting system was changed and the 
only entries that appeared were recordings of net interest income 
received by the Plan. No other fees were paid by the Plan in connection 
with this investment.
    d. A $1,003,958 Investment in a Package of Residential Mortgage 
Loans (the Residential Mortgage Loans).

------------------------------------------------------------------------
                                    Amount of      Income     Servicing 
               Loan                 investment    received       fees   
------------------------------------------------------------------------
20 Loans.........................   $1,003,958     $265,837      $11,090
------------------------------------------------------------------------

    On March 5, 1987, the Plan purchased 20 residential mortgage loans 
from an unrelated party, Capitol Federal Savings of Denver, Colorado 
(Capitol Federal), for an aggregate cost of $1,003,958. Each of the 
Residential Mortgage Loans bore interest at the rate of 9.25 percent 
and had maturities of 360 months. The collateral for the Residential 
Mortgage Loans was a first lien on residential property. None of the 
borrowers were parties in interest. Although occasional delinquencies 
occurred with respect to the Residential Mortgage Loans, none ever went 
into foreclosure. In addition, there were no restrictions placed on the 
Plan's sale or transfer of these loans.
    Capitol Federal serviced the Residential Mortgage Loans on behalf 
of the Plan for a total servicing fee of $11,090. The total income 
received by the Plan with respect to this investment was $265,837.
    e. A $2,089,978 Investment in Four Pools of ``Whole'' Loans (the 
Whole Loans)6.
---------------------------------------------------------------------------

    \6\The applicant represents that the acquisition of a Whole Loan 
by an investor (a mortgage loan in this exemption request) involves 
the purchase of the loan with all of the underlying benefits and 
risks. The applicant explains that the purchaser receives all 
principal and interest payments as the borrower makes the payments. 
The applicant further explains that a Whole Loan is not part of a 
larger pool of loans nor does it contain special guarantees as do 
GNMA investments. 

------------------------------------------------------------------------
                                    Amount of      Income     Servicing 
             Loan No.               investment    received       fees   
------------------------------------------------------------------------
Block 1..........................     $152,578     $134,783           $0
Block 2..........................      818,719      514,372       34,495
Block 3..........................      686,318      557,675       83,010
Block 4..........................      432,363      281,961       4,785 
                                  --------------------------------------
      Total......................   $2,089,978   $1,488,791    $122,290 
------------------------------------------------------------------------

    The Plan acquired the Whole Loans in four blocks for an aggregate 
purchase price of $2,089,978. The Plan earned $1,488,791 in income with 
respect to this investment and it paid total servicing fees of 
$122,290. The loans underlying the Whole Loan Blocks represented first 
lien interests on residential property and had coupon rates ranging 
from 6.375 percent to 9 percent. None of the individual borrowers was a 
party in interest with respect to the Plan. No delinquencies, other 
than occasional late payments, were ever documented with respect to the 
Whole Loans. Further, no restrictions were ever placed on the sale of 
transfer of this investment.
    (1) Whole Loan Block #1 consisted of nine loans which the Plan 
purchased from the Mellon National Mortgage Corporation of Colorado 
Profit Sharing Plan Trust, an unrelated entity, on November 16, 1979 
for $152,578. The total income received by the Plan with respect to 
this investment was $134,783. Whole Loan Block #1 was serviced by Bank 
Western, without the receipt of compensation.
    (2) Whole Loan Block #2 represented a 90 percent interest in 
thirteen loans which the Plan purchased for $818,719 on July 8, 1977 
from Midland Federal Savings and Loan Association (Midland Federal) of 
Denver, located in Denver, Colorado. Midland Federal, which was not a 
party in interest at the time of the investment, retained a 10 percent 
remainder interest in Whole Loan Block #2 and it also serviced such 
loans on behalf of the Plan until its merger with Bank Western in 1984. 
Servicing fees totaling $34,495 were paid to Midland Federal and Bank 
Western in connection with this investment.\7\ In addition, the Plan 
received total income of $514,372.
---------------------------------------------------------------------------

    \7\The Department is not proposing any exemptive relief herein 
beyond that provided in section 408(b)(2) of the Act with respect to 
the servicing of Whole Loan Block #2 by Bank Western. The applicant 
states that the agreement between the Plan and Midland Federal at 
the time these Whole Loans were purchased stipulated that the Plan 
would earn 8.75 percent and that the servicer would retain the full 
coupon rate. According to the applicant, the coupon rates ranged 
from 9 percent to 9.5 percent. When Midland Federal merged with Bank 
Western, applicant explains that the Plan continued to receive the 
agreed upon 8.75 percent and Bank Western continued to receive the 
full coupon rate.
---------------------------------------------------------------------------

    (3) Whole Loan Block #3 represented a 90 percent interest in 
seventeen loans which were acquired by the Plan on January 27, 1978 
from an unrelated party, First Federal Savings and Loan Association of 
Denver (First Federal), located in Denver, Colorado. The total cost of 
the Plan's investment in Whole Loan Block #3 was $686,318. First 
Federal retained the 10 percent remainder interest of such investment 
and serviced Whole Loan Block #3 on behalf of the Plan in return for an 
aggregate servicing fee of $83,010. The total income received by the 
Plan over the life of this investment was $557,675.
    (4) Whole Loan Block #4 represented a 90 percent interest in 
seventeen loans which the Plan acquired from an unrelated party, 
Littleton National Bank (Littleton) of Littleton, Colorado on December 
1, 1976. The total cost of the Plan's investment in Whole Loan Block #4 
was $432,363. Littleton retained a 10 percent interest in Whole Loan 
Block #4 and serviced such investment on behalf of the Plan for a total 
servicing fee of $4,785. The total income paid to the Plan in 
connection with Whole Loan Block #4 was $281,961.
    4. On July 23, 1990, the Board of Directors of WCIC adopted a 
Restated Employees' Retirement Fund Agreement which covered employees 
of WCIC and its related companies. The Plan then became a section 
401(k) cash or deferred compensation plan effective January 1, 1991. In 
the process of converting the Plan, the Trustees determined that they 
should seek outside investment expertise and provide participants with 
a choice of investment vehicles. Therefore, in October 1990, the 
Trustees selected Brinson Partners, Inc. (Brinson) of Chicago, Illinois 
to manage the alternative investment vehicles to be offered to 
participants. In addition, an existing block of WCIC stock was 
delivered to Brinson to dispose of at its discretion.\8\ Other than the 
WCIC stock, the goal of the Trustees was to liquidate all of the Plan's 
other assets and to deliver cash to Brinson which would be invested at 
the direction of the participants.
---------------------------------------------------------------------------

    \8\The applicant represents that such stock constitutes 
qualifying employer securities within the meaning of section 
407(d)(5) of the Act. However, the Department expresses no opinion, 
herein, on whether the stock satisfied the terms and conditions of 
section 407(d)(5) of the Act.
---------------------------------------------------------------------------

    From October 1990 through the end of 1990, the Trustees proceeded 
to liquidate the Plan's investments. The bulk of the liquidations took 
place in December 1990. However, certain of the Plan's assets, 
including the subject Assets, were difficult to sell, primarily due to 
their small investment size and high servicing costs. Therefore, the 
Trustees believed their only alternative was to sell the Assets to Bank 
Western. Thus, the trades were arranged on December 27, 1990. The Plan 
paid no fees or commissions to Bank Western in connection with the 
sale.
    5. The following Asset Summary Table reflects, in pertinent part, 
the status of the Assets at the time of the December 1990 sale. In 
addition, the table shows the Asset sales that have been exempted by 
the Department and discussed further herein in Representation 7. 
Presented below are descriptions of the Assets as summarized in the 
table.

                                                                   Asset Summary Table                                                                  
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                             Servicing    Return of                                Gross                
                                                   Investment     Income        fees      principle     Balance        FMV         return      Net gain 
--------------------------------------------------------------------------------------------------------------------------------------------------------
GNMA Pools......................................   $2,537,594     $685,418           $0   $1,090,061   $1,447,533   $1,459,094   $3,234,573     $696,979
CMO.............................................       75,000        7,688            0       48,828       26,172       24,519       81,035        6,035
Mobile Home Loans...............................       29,027       14,423        1,571        4,428       24,599       23,143       40,423       11,396
Res. Mtge. Loans................................    1,003,958      265,837       11,090      497,032      506,926      488,497    1,240,276      236,318
Whole Loans.....................................    2,089,978    1,488,791      122,290    1,559,696      530,282      507,698    3,433,895    1,343,917
Subtotals.......................................    5,735,557    2,456,157      134,951    3,200,045    2,535,512    2,502,951    8,031,773    2,294,645
Less Mobile Home Loans..........................       29,027       14,423        1,571        4,428       24,499       23,143       40,423       11,396
                                                 -------------------------------------------------------------------------------------------------------
      Totals....................................    5,706,530    2,441,734      133,380    3,195,617    2,510,913    2,479,808    7,991,350    2,283,249
--------------------------------------------------------------------------------------------------------------------------------------------------------
(1) Return of Principal is determined by subtracting the Principal Balance as of 12/21/90 from the amount of the Investment. (2) Gross Return includes  
  the sum of Return of Principal, Income and the FMV of the Investment as of 12/31/90 less Servicing Fees. (3) Net Gain is determined by subtracting    
  Gross Return from the Investment amount.                                                                                                              

a. The GNMA Pools

    As the Asset Summary Table shows, the Plan received $685,418 in 
income with respect to its investment of $2,537,594 in the GNMA Pools 
as well as a return of principal of $1,090,061. At the time of the 
December sale, the GNMA Pools had an outstanding principal balance of 
$1,447,533. Bank Western paid the Plan $1,459,094. Thus, the gross 
return to the Plan with respect to the GNMA Pools was $3,234,573 and 
the net gain realized for this investment was $696,979.
    In valuing the GNMA Pools, it is represented that the Trustees 
obtained estimated fair market prices by telephone from several 
unrelated appraisers. However, the applicant states that none of these 
dealers was willing to buy the securities at the prices quoted to due 
to their small aggregate balance. Bank Western ultimately purchased the 
interests held by the Plan in GNMA Pools A, C and D for a total cash 
acquisition price of $1,409,709 based upon market quotations that were 
obtained by the Trustees on December 27, 1990 from an unrelated source, 
``Bloomberg Financial Markets, Commodity News'' (the Bloomberg 
System).9 The Plan's investment in GNMA Pool B was valued at 
$49,385 on or about December 20, 1990 by the Denver, Colorado office of 
Prudential Securities, Inc. (formerly, Prudential-Bache Securities, 
Inc.), another unrelated appraiser.
---------------------------------------------------------------------------

    \9\According to the applicant, the Bloomberg System is a 
national information and pricing data-based system which provides 
current market analysis and pricing information on most financial 
markets and instruments, including GNMA Pools.
---------------------------------------------------------------------------

b. The CMO

    As of December 1990, the Plan had received interest income of 
$7,688 with respect to its $75,000 investment in the CMO as well as a 
return of principal of $48,428. Also as of December 1990, the CMO had a 
remaining balance plus accrued interest of $26,172. Thus, the gross 
return to the Plan with respect to this investment was $81,035. In 
addition, the Plan realized a net gain of $6,035.
    According to the applicant, the Denver office of Merrill Lynch, an 
unrelated party, determined that, as of December 19, 1990, the CMO 
would trade for 93 percent of its outstanding balance and it attempted 
to sell the CMO for that price but to no avail. Therefore, Bank Western 
purchased the asset for 93.6875 percent of its par value of $26,172 or 
$24,519.

c. The Mobile Home Loans

    As of December 28, 1990, the Plan had received $14,423 in income 
with respect to its $29,027 investment in the two Mobile Home Loans and 
a return of principal of $4,428. The Plan also had paid total servicing 
fees of $1,571 with respect to such investment. At the time of the 
December sale, the Mobile Home Loans had an outstanding principal 
balance of $24,599 and Bank Western paid the Plan a total sales price 
of $23,143. Thus, the Plan received a gross return of $40,423 for this 
investment and it realized a net gain of $11,396.
    According to the applicant, there was no independent appraisal of 
the Mobile Home Loans in order to determine their fair market value. 
Instead, SAC, Bank Western's affiliate, calculated the fair market 
value of the Mobile Home Loans by discounting them to yield a market 
rate of return equal to the current quoted rate for new mobile home 
loans.

d. The Residential Mortgage Loans

    Of its investment of $1,003,958 in the Residential Mortgage Loans, 
the Plan received net income of $254,747 and a return of principal of 
$497,032. The Plan also paid servicing fees totaling $11,090. On 
December 27, 1990, Bank Western paid the Plan $488,497 for the 
Residential Mortgage Loans which had, at that time, an outstanding 
principal balance plus accrued interest of $506,926. Thus, the Plan 
received a gross return of $1,240,276 with respect to this investment 
and a net gain of $236,318.
    According to the applicant, the method for computing the sales 
price for the Residential Mortgage Loans required that the Plan 
administrator obtain the current market yield for Federal Home Loan 
Mortgage Corporation (FHLMC) purchases from Telerate, an independent 
information and pricing service regularly used by Bank Western in 
establishing quoted rates for new loan obligations. The Plan 
administrator then obtained pricing information from the Financial 
Publishing Company tables using a twelve year prepayment assumption. 
The price in the Financial Publishing tables resulted from discounting 
the net yield on the loans at the required FHLMC whole loan market 
yield.

e. The Whole Loans

    With respect to the Whole Loans in which the Plan had made a total 
investment of $2,089,978, $1,488,791 represented total income received 
and $122,290 represented the amount paid in servicing fees. The Plan 
also received a return of principal of $1,559,696 for this investment. 
At the time of the December 1990 sale, the Whole Loans had an 
outstanding principal balance plus accrued interest of $530,282. On the 
date of the sale, Bank Western paid the Plan $507,698 for the Whole 
Loans. Thus, the gross return to the Plan with respect to the Whole 
Loans was $3,433,895 and the net gain realized was $1,343,917.
    According to the applicant, the method established for calculating 
the selling price for the Whole Loans was similar to that utilized to 
value the Residential Mortgage Loans except that due to the age of the 
Whole Loans, current market yields were not used. Therefore, the Plan 
administrator valued the Whole Loans by referring to the yield on GNMA 
9.5 percent securities as reported in the Wall Street Journal because 
such securities were believed to be representative of the age of the 
loans in these pools. The Plan administrator then discounted the net 
yield on the Whole Loans and determined the price for the Whole Loans 
from the Financial Publishing Company tables.
    6. Upon realizing that the aforementioned transactions were 
prohibited transactions in violation of the Act, Bank Western offered 
to sell all of the Assets back to the Plan. However, the Trustees 
determined that because of the limited liquidity of the Assets and 
their investment performance, the Plan would only repurchase those 
Assets which it could sell at a higher price than that paid by Bank 
Western. Consequently, the Plan repurchased GNMA Pool C for $965,181, 
which was the same price that Bank Western had paid.10 This Asset 
was subsequently sold by the Trustees to an unrelated party for 
$996,154.
---------------------------------------------------------------------------

    \1\0The applicant represents that the repurchase by the Plan of 
its interest in GNMA Pool C from Bank Western constitutes 
``correction'' within the meaning of section 4941 of the Code. 
Whether the subject repurchase by the Plan represents actual 
correction of the prior prohibited transaction is a determination 
that is within the jurisdiction of the Service.
---------------------------------------------------------------------------

    7. CNB, as successor in interest to Bank Western, requests an 
administrative exemption from the Department with respect to Bank 
Western's past purchase from the Plan of interests in the GNMA Pools, 
the CMO, the Residential Mortgage Loans and the Whole Loans for an 
aggregate cost of $2,479,808 as shown in the Asset Summary Table. CNB 
acknowledges that the (a) the Plan's acquisition of the Mobile Home 
Loans which were obtained from SAC, (b) the servicing of the Mobile 
Home Loans by SAC for a fee, and (c) the subsequent sale of the Mobile 
Home Loans by the Plan to Bank Western resulted in prohibited 
transactions in violation of the Act. Therefore, CNB is not requesting 
exemptive relief with respect to any transactions involving the Mobile 
Home Loans nor is the Department granting exemptive relief with respect 
to such loans. To the extent the resale by Bank Western of its interest 
in GNMA Pool C constituted a correction within the meaning of the Code, 
CNB is not requesting exemptive relief.
    8. Bank Western represents that on October 28, 1992, it filed a 
Form 5330 with the Service and it paid total excise taxes of $126,776 
that were assessed on the Assets it acquired from the Plan. CNB, as 
successor in interest to Bank Western, states that it will pay any 
additional excise taxes that may be owed to the Service within 90 days 
of the publication in the Federal Register of the notice granting the 
exemptive relief herein.
    9. In summary, it is represented that the transaction satisfies the 
statutory criteria for an exemption under section 408(a) of the Act 
because: (a) The sale represented a one-time transaction for cash; (b) 
the sales price for each Asset was based upon its fair market value as 
determined by a qualified, independent appraisal; (c) the Plan did not 
pay any fees or commissions in connection with the sale; and (d) CNB 
will file a Form 5330 with the Service and pay any applicable excise 
taxes that may be due on any of the Assets within 90 days of the 
publication in the Federal Register of the notice granting the 
exemptive relief herein.

Notice to Interested Persons

    Notice of the proposed exemption will be given to all interested 
persons within 30 days of the publication of the notice of pendency in 
the Federal Register. Such notice will be given to interested persons 
by first class mail and will include a copy of the notice of proposed 
exemption as published in the Federal Register. The notice will also 
inform interested persons of their right to comment on and/or to 
request a public hearing with respect to the proposed exemption. 
Comments with respect to the proposed exemption are due within 60 days 
after the date of publication of this exemption in the Federal 
Register.

FOR FURTHER INFORMATION CONTACT: Ms. Jan D. Broady of the Department, 
telephone (202) 219-8881. This is not a toll-free number.

Batterymarch Financial Management (BFM) Located in Boston, 
Massachusetts; Proposed Exemption

[Application No. D-9230]

    The Department is considering granting an exemption under the 
authority of section 408(a) of the Act and in accordance with the 
procedures set forth in 29 CFR Part 2570, Subpart B (55 FR 32836, 
32847, August 10, 1990). If the exemption is granted, the restrictions 
of section 406(b)(2) of the Act shall not apply to the proposed cross-
trading of equity securities between various accounts managed by BFM 
(the Accounts) where at least one Account involved in any cross-trade 
is an employee benefit plan account (Plan Account) for which BFM acts 
as a fiduciary.

Conditions and Definitions

    This proposed exemption is subject to the following conditions:
    1. (a) Each Plan Account's participation in the cross-trade program 
is subject to BFM's receipt of a written authorization executed in 
advance by a qualified Plan fiduciary, which is independent of BFM and 
its Affiliates (the Independent Fiduciary).
    (b) The authorization referred to in paragraph (a) is terminable at 
will, without penalty to the Plan Account, upon receipt by BFM of 
written notice of termination.
    (c) Before an authorization is made for any Account, an independent 
account representative, which must be an Independent Fiduciary in the 
case of a Plan Account (collectively, an Independent Account 
Representative) must be furnished with any reasonable available 
information necessary for the Independent Account Representative to 
determine whether the authorization should be made, including (but not 
limited to) a copy of the proposed and final exemption, an explanation 
of how the authorization may be terminated, a description of BFM's 
cross-trade practices, and any other information requested by the 
Independent Account Representative.
    2. Each cross-trade transaction must satisfy the following:
    (a) The cross-trade opportunity must be triggered as a result of an 
Account participating in the program experiencing a need to sell equity 
securities arising from one of the following three circumstances:
    (i) the Independent Account Representative specifically directs 
that all of the assets in the Account be liquidated;
    (ii) the Independent Account Representative specifically directs 
that a portion of the Account be liquidated and the selection of the 
particular equity securities to be sold is made either by the 
Independent Account Representative or by an optimization program used 
by BFM (the Optimization Program) which operates, pursuant to certain 
prescribed objective criteria, to automatically generate an optimal 
portfolio for such Accounts; or
    (iii) the application of the Optimization Program to the specific 
investment objectives and restrictions established by the Independent 
Account Representative requires the sale of a security which is 
otherwise ranked by BFM as a buy or a hold for all relevant Accounts 
under the Stock Evaluation Process.
    (b) With respect to each cross-trade opportunity triggered under 
paragraph 2(a), the Optimization Program used by BFM must determine, in 
the ordinary course of its considering all available equity securities 
in the applicable universe, that another Account or Accounts 
participating in the program should purchase some or all of the 
available equity securities.
    (c) The cross-trade transaction must take place within three 
business days of the ``triggering event'' giving rise to the cross-
trade opportunity described in paragraph 2(a) above.
    (d) The cross-trade transaction must be effected through a broker 
which is unaffiliated with BFM and its Affiliates.
    (e) The Independent Account Representative of each Account engaging 
in a cross-trade transaction must be provided with a written 
confirmation of the cross-trade transaction within 10 days after the 
completion of the transaction. The confirmation must set forth:
    (i) The particular equity securities involved;
    (ii) The number of shares involved;
    (iii) The price at which the transaction was executed; and
    (iv) The specific triggering event, identified above in paragraph 
2(a), which caused the cross-trade transaction to occur.
    3. (a) Each cross-trade must be effected at the closing price for 
the equity securities involved on the date of the transaction, as 
quoted by the exchange on which such securities are principally traded 
or by the NASDAQ National Market System (NASDAQ). In the case of 
domestic equity securities traded over-the-counter, other than those 
traded on NASDAQ, the price must be the mean between the closing daily 
``bid'' and ``asked'' prices on the date of the transactions, obtained 
from recognized independent sources, unless such securities have 
actually traded within 24 hours of the cross-trade transaction in which 
case the price must be the last sale price for the securities. If more 
than one source is used by BFM to price a particular domestic equity 
security traded over-the-counter, then the price must be equal to the 
average of the highest current independent bid and lowest current 
independent offer obtained from such sources. No foreign equity 
securities, other than those traded on a recognized foreign securities 
exchange for which market quotations are readily available, shall be 
cross-traded by the Accounts.
    (b) The equity securities involved in the cross-trade are those for 
which there is a generally recognized market with adequate pricing 
information to enable BFM to use the Optimization Program for the 
Accounts in the transaction.
    (c) The cross-trade must involve less than 5 percent of the 
aggregate average daily trading volume of the equity securities which 
are the subject of the transaction for the week immediately preceding 
the completion of the transaction.
    4. For any cross-trade opportunity where equity securities 
available for sale from a Selling Account may be sold to more than one 
Buying Account, each cross-trade opportunity shall be allocated first 
to the Buying Account which is ranked by the Optimization Program as 
being furthest from optimality, measured on a numerical basis at the 
time of the transaction, until such Account is brought up to par with 
the Account which is next furthest from optimality. Such Accounts shall 
then be allocated cross-trade opportunities on a pro rata basis until 
the Accounts are brought up to the level of the next Account which is 
furthest from optimality. This allocation process shall continue until 
all cross-trade opportunities involving the equity securities in 
question are exhausted.
    5. (a) BFM furnishes the Independent Fiduciary for each Plan 
Account participating in the cross-trade program at least once every 
three months, and not later than 45 days following the period to which 
it related, a report disclosing:
    (i) A list of all cross-trade transactions engaged in on behalf of 
the Plan Account during the period; and
    (ii) With respect to each cross-trade transaction, the actual price 
used to effect the transaction and the identity of the pricing source, 
as well as the highest and lowest reported prices at which the equity 
securities involved in the transaction were traded on the date of such 
transaction.
    (b) The authorizing Independent Fiduciary for each Plan Account 
participating in the program is furnished with a summary report at 
least once per year. The summary must be furnished within 45 days after 
the end of the period to which it relates, and must contain the 
following:
    (i) A description of the total amount of the Plan Account's assets, 
by type of equity security, involved in cross-trade transactions during 
the period;
    (ii) A description of BFM's cross-trade practices, if such 
practices have changed materially during the period covered by the 
summary;
    (iii) A statement that the Independent Fiduciary's authorization of 
cross-trade transactions may be terminated upon receipt by BFM of the 
Independent Fiduciary's written notice to that effect; and
    (iv) A statement that the Independent Fiduciary's authorization of 
the Plan Account's participation in the cross-trade program will 
continue in effect unless it is terminated.
    6. The cross-trade transaction does not involve assets of any 
employee benefit plan established or maintained by BFM or any of its 
Affiliates (Batterymarch Plan).
    7. Each employee benefit plan comprising a Plan Account that 
participates in the cross-trading program must have total assets equal 
to at least $25 million. In the case of multiple employee benefit plans 
maintained by a single employer or controlled group of employers, the 
$25 million requirement may be met by aggregating the assets of such 
plans if the assets are commingled for investment purposes in a single 
master trust.
    8. BFM receives no fee or other compensation (other than its agreed 
investment management fee) with respect to any cross-trade transaction.
    9. BFM is a discretionary investment manager with respect to Plan 
Accounts participating in the cross-trade program and does not cause 
any Plan Account to purchase or sell equity securities with another 
Account in order to merely track or replicate the portfolio of an 
independently maintained third party index.
    10. For purposes of this proposed exemption:
    (a) ``Account'' means a Plan Account or a Non-Plan Account;
    (b) ``Affiliate'' means any person directly or indirectly through 
one or more intermediaries, controlling, controlled by, or under common 
control with Batterymarch;
    (c) ``Buying Account'' means the Account which seeks to purchase 
equity securities in a cross-trade transaction;
    (d) ``Cross-trade transaction'' means a purchase and sale of equity 
securities between Accounts for which BFM or an Affiliate is acting as 
a trustee or investment manager;
    (e) ``Plan Account'' means an Account managed by BFM consisting of 
assets of one or more employee benefit plans which are subject to the 
Act;
    (f) ``Independent Account Representative'' means the authorized 
representative of the Account. In the case of a Plan Account, the 
Independent Account Representative must be an Independent Fiduciary 
authorized to act for the Plan Account;
    (g) ``Non-Plan Account'' means an Account managed by BFM consisting 
of assets of clients which are not employee benefit plans subject to 
the Act;
    (h) ``Selling Account'' means the Account which seeks to sell its 
equity securities in a cross-trade transaction; and
    (i) The ``Optimization Program'' means a computer program developed 
by a third party, independent of BFM and its Affiliates, which BFM uses 
pursuant to a license agreement and which utilizes objective 
mathematical formulas to construct ``optimal'' portfolios for each 
Account.

Summary of Facts and Representations

    1. BFM is a business trust organized under the laws of the 
Commonwealth of Massachusetts and registered as an investment adviser 
pursuant to the Investment Advisers Act of 1940, as amended. BFM 
currently manages on a discretionary basis approximately $7 billion in 
assets, of which approximately $4 billion consists of assets of Plan 
Accounts.
    2. BFM represents that there are certain circumstances when it is 
required to liquidate all or a portion of the equity securities in an 
Account for which it acts as an investment manager. BFM proposes to 
cross-trade equity securities between the Accounts in situations where 
the decision to sell equity securities from the Selling Account is made 
either directly by the Independent Account Representative or by 
operation of a pre-established contractual obligation established by 
the Independent Account Representative. In the case of a Plan Account, 
the Independent Account Representative must be an authorized 
Independent Fiduciary. In all cross-trade situations, the decision as 
to the particular equity securities to be sold at the time of the 
transaction will be made either by the Independent Account 
Representative or by operation of the Optimization Program utilized by 
BFM. In the case of all Accounts, the Independent Account 
Representative will be a person which is unrelated to BFM and its 
Affiliates. Cross-trade transactions will not involve assets of any 
Batterymarch Plan.
    3. BFM states that a cross-trade opportunity, pursuant to the 
requested exemption, will arise only if the need to sell equity 
securities from a Selling Account occurs as a result of one of the 
following ``trigger events''.
    (a) The Independent Account Representative directs that all of the 
assets in the Account be liquidated. In such cases, both the decision 
to sell equity securities from the Selling Account and the decision 
regarding the particular equity securities to be sold will be made by 
the Independent Account Representative.
    (b) The Independent Account Representative directs that a portion 
of the Account be liquidated. In such instances, the decision to sell 
equity securities from the Selling Account will be made by the 
Independent Account Representative. However, the determination of the 
particular equity securities to be sold by the Selling Account will be 
made either by the Independent Account Representative or by the 
Optimization Program (as described below).
    (c) The investment restrictions and objectives established by the 
Independent Account Representative for the Selling Account require that 
a particular security or a particular type of security be sold. 
Whenever a choice must be made as to particular equity securities to be 
sold, the Optimization Program will select the equity securities from 
the Account's holdings in a manner calculated to best bring the Account 
into compliance with the applicable investment restrictions.
    BFM states that for all ``trigger events'' described above the 
selection of the specific equity securities to be sold by the Selling 
Account through the operation of the Optimization Program will involve 
an automatic mechanical process, pursuant to certain prescribed 
investment restrictions and objectives from an Independent Account 
Representative, and will not involve any exercise of investment 
discretion by BFM.
    With respect to each potential cross-trade transaction, the 
Optimization Program will determine, in the ordinary course of its 
considering all available equity securities in the applicable universe, 
that another Account or Accounts participating in the program should 
purchase some or all of the available equity securities. In addition, 
each cross-trade transaction will occur within three business days from 
the occurrence of the triggering event which establishes the cross-
trade opportunity.
    4. BFM represents that there are two fundamental components to its 
investment process--the Stock Evaluation Process and the Portfolio 
Construction Process.
    With respect to the Stock Evaluation Process, BFM evaluates all of 
the equity securities in the applicable universe by applying a variety 
of objective criteria and mathematical computations to rank the equity 
securities and characterize each security with a ``buy'', a ``hold'', 
or a ``sell'' classification. BFM states that it does exercise some 
degree of discretion in the Stock Evaluation Process portion of the 
investment process. For example, BFM selects the particular strategic 
themes that are utilized from time to time in this process.11 
However, BFM states that the Stock Evaluation Process and the strategic 
themes used at a particular time are applied in exactly the same 
fashion for all Accounts which have directed BFM to invest in a 
particular universe of securities. Thus, the exact same stock rankings 
and buy-hold-sell classifications are applied uniformly for each 
security in every Account within such universe. The Stock Evaluation 
Process will never, in and of itself, give rise to direct cross-trade 
opportunities because the results of the Stock Evaluation Process will 
be the same for every Account in the particular universe. BFM states 
that it is only in the second part of the overall investment process 
(i.e. the Portfolio Construction Process), when the specific investment 
objectives and restrictions which have been established by the 
Independent Account Representative for the Account are overlaid against 
the results of the Stock Evaluation Process, that differences appear 
for the various Accounts within a particular universe.
---------------------------------------------------------------------------

    \1\1Some of the strategic themes which have been utilized by BFM 
include the following: (a) Acid Cash--stocks of companies with high 
cash flow, measured by changes in corporate liquidity relative to 
market price; (b) Buybacks--stocks of companies that have announced 
intentions of buying back a meaningful percentage of their own 
stock; (c) High Yield--stocks of companies with above average yields 
relative to the overall market and within their own industries; (d) 
Low-Priced Growth--stocks of companies with below average price-to-
earnings ratios and above average growth; and (e) Insiders--stocks 
of companies where corporate insiders have purchased the company's 
stock on the open market.
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    With respect to the Portfolio Construction Process, BFM represents 
that the results of the Stock Evaluation Process are brought together 
with the particular facts applicable to each Account to generate the 
optimal portfolio for that Account and suggested trades to arrive at 
that optimal portfolio. The Portfolio Construction Process is driven by 
the Optimization Program. The Optimization Program receives the 
relevant information and automatically generates the optimal portfolio 
and the suggested buy and sell decisions that are designed to move a 
particular Account toward ``optimality'' (i.e. maximum expected return 
for a prescribed level of risk). The information utilized in the 
Portfolio Construction Process consists of (i) the existing make-up of 
the portfolio of the particular Account, (ii) the investment objectives 
and restrictions which have been established by the Independent Account 
Representative for the Account, and (iii) objective economic data (such 
as existing market prices for equity securities, price-earnings ratios 
for such securities, etc.) which is obtained by BFM from independent 
sources.
    BFM represents that the results of its investment process will 
create cross-trade opportunities for the Accounts under the following 
circumstances: (1) When the Independent Account Representative for an 
Account directs a liquidation of all or a portion of the equity 
securities in the Account, as described in condition 2(a) (i) and (ii) 
above; or (2) when the application of the Optimization Program in the 
Portfolio Construction Process requires the sale of a security which is 
ranked as a ``buy'' or ``hold'' under the Stock Evaluation Process. In 
the latter instance, the sale of the security results from the 
investment objectives and restrictions applicable to the Account which 
are established by the Independent Account Representative, as described 
in condition 2(a)(iii) above.
    For example, the applicable investment restrictions might provide 
that not more than 5 percent of the assets of the Account can be 
invested in any one security. If a particular holding appreciates in 
value to a point where it exceeds 5 percent of the Account's assets, 
the excess shares must be sold by the Account to comply with this 
restriction even though the stock is otherwise classified as a ``buy'' 
or ``hold'' under the Stock Evaluation Process. Alternatively, the 
applicable investment restrictions might provide that not more than 10 
percent of the assets of the Account can be invested in equity 
securities of any one industry. If the aggregate value of all such 
equity securities in the Account exceeds 10 percent of the Account's 
assets, the excess shares must be sold to comply with this restriction 
even though the particular stock is otherwise classified as a ``buy'' 
or ``hold'' under the Stock Evaluation Process. In the latter case, the 
Optimization Program would select the particular equity securities to 
be sold from the Account's holdings in that industry so as to bring the 
Account into compliance with the applicable investment restriction and 
move the Account toward ``optimality''.
    BFM represents that none of the Accounts in the proposed cross-
trading program would be index funds that attempt to track or replicate 
a particular independently maintained index, such as the Standard & 
Poors 500 Index (the S&P 500). Thus, under the proposed exemption, no 
Plan Account will purchase or sell equity securities with another 
Account in order to merely track such an index. In all cases, BFM will 
exercise some degree of investment discretion to determine which 
particular equity securities are desirable investments for the 
Accounts. As noted above, the rankings of each security are developed 
as part of the Stock Evaluation Process and are identical for all 
Accounts invested in a particular universe of equity securities. These 
rankings and the results of the Stock Evaluation Process will not be 
tied to any particular index or to the specific investment objectives 
and restrictions established for the Account by its Independent Account 
Representative. However, an index may be used as part of the investment 
objectives or restrictions established by the Independent Account 
Representative, most typically as either a benchmark against which the 
Account's performance is to be measured or a further restriction on the 
universe of securities available for an Account.
    For example, an Account might be subject to an investment objective 
that seeks to outperform the S&P 500 Index to the maximum extent, 
subject to certain volatility parameters or risk tolerance levels 
specified by the Independent Account Representative. In this situation, 
the foregoing investment objective would be taken into account by the 
Optimization Program in determining the buys and sells for this Account 
which could lead to cross-trade opportunities.12 Such an Account 
would be an actively managed account, not an index fund, even though 
the benchmark against which its performance is measured would be an 
index.
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    \1\2The applicant has provided the following example: Assume 
there are two Accounts. Account A operates pursuant to a relatively 
low risk investment objective, in terms of permitted deviation from 
the applicable benchmark, and Account B uses the same benchmark but 
allows substantially greater risk in the hope of achieving better 
performance relative to the benchmark over the long term. In this 
case, a particular stock which is viewed as attractive generally by 
BFM and therefore is classified as a ``buy'' in the Stock Evaluation 
Process, might demonstrate an increased level of volatility to the 
point that, as part of the Portfolio Construction Process, the 
Optimization Program may determine that this stock should be sold by 
conservative Account A because its increased level of volatility is 
inconsistent with the risk tolerance of Account A. Nevertheless, 
this particular stock might well continue to be attractive to 
Account B given that Account's greater level of risk tolerance. The 
application of the investment objectives and restrictions 
established for Account A would require that this stock, otherwise 
ranked as a ``buy'', be sold by Account A which, in turn, would 
trigger a direct cross-trade opportunity pursuant to which Account B 
would be able to acquire the stock directly from Account A.
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    As a further example, an Account might be established which is 
subject to an investment restriction providing that the Account may be 
invested only in equity securities which constitute the 100 largest 
equity securities (by market capitalization) in the S&P 500 Index. This 
investment restriction will be incorporated by the Optimization Program 
as part of the Portfolio Construction Process for the Account, taking 
into account the uniform rankings developed by BFM for all of the 
equity securities in the particular universe. If a security ceases to 
be one of the 100 largest equity securities in the S&P 500 Index, it 
would no longer be eligible to be held by the Account and would have to 
be sold. This would be a trigger event that would give rise to a direct 
cross-trade opportunity whereby other Accounts which are not so limited 
would be able to purchase this security from the Selling Account, 
assuming that the Optimization Program indicates that such a purchase 
would be desirable for those Accounts in order to move toward 
``optimality''.
    5. The Optimization Program is a computer program developed by an 
independent third party and utilized by BFM pursuant to a license 
agreement. Various such programs are commercially available. BFM 
represents that the ability to exercise discretion for the operation of 
the Optimization Program is limited. BFM selects the Optimization 
Program, selects and weighs the strategic themes used at any point in 
time in the Stock Evaluation Process, and develops certain mathematical 
models used as data for the Optimization Program. Once installed, the 
Optimization Program typically remains in place without material change 
for a lengthy period of time (2 to 10 years). While the strategic 
themes and mathematical models are changed more frequently, they 
usually remain unchanged for approximately 12 months. BFM states that 
the Optimization Program operates in an automatic fashion and that 
actions within BFM's discretionary control (e.g. changing its strategic 
themes or changing the mathematical models used in its stock rankings 
for the Stock Evaluation Process) will not generate direct cross-trade 
transactions.
    6. BFM uses the Optimization Program on a daily basis to examine 
all equity securities in the applicable universe and to determine the 
specific equity securities, if any, to be purchased for each Account in 
order to achieve the optimal portfolio for that Account. Each universe 
is developed by BFM as part of the Stock Evaluation Process and is 
uniform for all Accounts for which that particular universe is 
relevant.
    For example, in the context of domestic equity securities, BFM 
determines the universe of securities to be considered for potential 
investment as part of the Stock Evaluation Process. The universe for 
domestic equity clients currently consists of all U.S. publicly-traded 
common stocks, excluding any such stock which has a market 
capitalization of less than $50 million. BFM states that this domestic 
equity securities universe, which includes several thousand stocks, is 
identical for all of BFM's domestic equity Accounts unless certain 
restrictions are imposed by the Independent Account Representative.
    In addition to domestic equity Accounts, BFM uses the Optimization 
Program to examine data on foreign equity securities for Accounts that 
have designated investment objectives which permit such securities for 
their portfolios. At the present time, the potential universe of 
securities for such Accounts would include equity securities listed on 
exchanges in the following countries: Australia; Austria; Belgium; 
Canada; Denmark; Finland; France; Germany; Hong Kong; Ireland; Italy; 
Japan; Malaysia; Mexico; Netherlands; New Zealand; Norway; Singapore; 
Spain; Sweden; Switzerland; and the United Kingdom. BFM states that 
these are the countries which today have sufficiently developed 
securities markets (including adequate data on the exchange-traded 
securities) to permit use of the Optimization Program for the Accounts. 
BFM represents that the two-part investment process (i.e. the Stock 
Evaluation Process and the Portfolio Construction Process) operates in 
substantially the same manner for foreign equity securities as it does 
for domestic equity securities. In all cases involving either domestic 
or foreign equity securities, the Independent Account Representative 
for each Account will determine which universe is relevant for the 
Account.
    To the extent there are any equity securities available for sale 
from a Selling Account by reason of one of the triggering events, the 
Optimization Program will include the equity securities in its analysis 
of all available equity securities in a particular universe, taking 
into account the lower transaction costs available for cross-trade 
transactions involving such securities. However, BFM states that the 
opportunity for a cross-trade will not influence the Optimization 
Program's analysis and determination as to whether such securities 
should be bought or sold for an Account except to the extent 
transaction costs are lower.
    In the event any of the equity securities available for sale in 
cross-trade transactions are attractive to more than one Account, the 
Optimization Program will automatically allocate such securities among 
the Accounts on a consistent, objective basis according to the 
allocation methodology described herein (see Item 14 below). The 
allocation methodology will be disclosed to, and approved by, the 
Independent Account Representatives. Since the determination and 
allocation of cross-trade opportunities among potential Buying Accounts 
will be performed automatically by the Optimization Program, BFM states 
that it will be unable to use any discretion to benefit one Account 
over another Account.
    7. BFM represents that since particular equity securities which are 
sold by a Selling Account in one of the ``trigger events'' described 
above are often desirable investments (i.e. classified as a ``buy'' or 
a ``hold'' under the Stock Evaluation Process) for BFM's other 
Accounts, the opportunity to cross-trade such securities would 
significantly reduce the transaction costs incurred by both the Selling 
Accounts and the Buying Accounts. BFM states that these savings result 
from the fact that the independent broker effecting a cross-trade 
transaction will effect the transaction for a lower commission. The 
independent broker will effect these transactions for approximately 
.5 cents per share. By contrast, if BFM were to effect the same trade 
other than by a cross-trade transaction, the commission would be 
approximately 2 cents per share. In the context of foreign equity 
securities, where brokerage commissions are significantly higher, the 
potential savings on commissions would be even greater.
    BFM states that cross-trading also avoids the bid/ask differential 
that would ordinarily occur in such transactions because the price 
received by the Selling Account for a particular equity security will 
be the same price paid by the Buying Account. The elimination of any 
price differential in equity securities that are cross-traded will 
result in savings of approximately 1 cents per share for each Account.
    In addition, the ability to use cross-trade transactions to shift 
equity securities directly from a Selling Account to a Buying Account 
will enable BFM to implement optimal investment strategies for the 
Accounts more effectively. First, the allocation of equity securities 
necessary to bring Accounts closer to optimality would be easier 
because all ``buys'' will be net position buys for the Accounts without 
any bid/offer spread. Second, there is a timing efficiency to be 
achieved if direct cross-trades are permitted. Under BFM's current 
procedures, if an Account has sold a particular security on a 
particular day, no other Account is permitted to buy that security on 
that day. Rather, all purchases of such security are deferred until the 
next day. Similarly, if an Account has bought a particular security on 
a given day, other Accounts are not permitted to sell that security on 
the same day. Under the requested exemption, BFM would be able to net 
these contemporaneous buy and sell orders on the same day.
    Finally, the ability to effect direct cross-trades will avoid the 
adverse consequences of any market impact which trading in particular 
equity securities may generate.
    8. BFM represents that each employee benefit plan comprising a Plan 
Account that participates in the cross-trading program must have total 
assets equal to at least $25 million. In the case of multiple employee 
benefit plans maintained by a single employer or controlled group of 
employers, the $25 million requirement may be met by aggregating the 
assets of such plans if the assets are commingled for investment 
purposes in a single master trust.
    9. The Independent Fiduciary will provide written authorization 
before a Plan Account is permitted to participate in BFM's cross-trade 
program. This authorization will be terminable at will upon written 
notice by the Independent Fiduciary. BFM will receive no additional fee 
or other compensation for providing such cross-trading services. No 
penalty or other charge will be made as a result of the termination of 
an Account's participation in the cross-trade program. Before any 
authorization is made by a Plan Account, BFM will provide the 
Independent Fiduciary for the Plan Account with all reasonably 
available materials necessary to permit an evaluation of the cross-
trade program by such fiduciary. These materials will include a copy of 
the proposed and final exemption, an explanation of how the Plan 
Account's authorization may be terminated, a description of BFM's 
cross-trade practices, and any other reasonably available information 
requested by the Independent Fiduciary.
    10. The Independent Account Representative of each Account engaging 
in a cross-trade transaction will be provided with a written 
confirmation of the cross-trade transaction within 10 days after the 
transaction is completed. The confirmation will set forth information 
regarding the particular equity securities involved, the number of 
shares involved, the price at which the transaction was executed, and 
the specific ``trigger event'' (identified in condition 2(a) above) 
which caused the cross-trade transaction to occur.
    11. BFM will provide the Independent Fiduciary of each Plan Account 
participating in the cross-trade program with a report, at least once 
every three months and not later than 45 days following the period for 
the report, setting forth: (a) A list of all cross-trade transactions 
engaged in on behalf of the Plan Account during the previous period; 
and (b) with respect to each cross-trade transaction, the actual price 
used to effect the transaction and the identity of the pricing source, 
as well as the highest and lowest reported prices at which the subject 
equity securities were traded on the date of such transaction. In 
addition, the Independent Fiduciary of each Plan Account participating 
in the cross-trade program will be provided with a summary report at 
least once a year, and not later than 45 days after the end of the 
period for the report, which will include: (a) A description of the 
total amount of Plan Account assets, by type of equity security, 
involved in cross-trade transactions completed during the year; (b) a 
statement that the Independent Fiduciary's authorization for the Plan 
Account to participate in the cross-trade program can be terminated 
without penalty upon BFM's receipt of a written notice to that effect; 
(c) a statement that the Independent Fiduciary's authorization 
regarding the cross-trade program will continue unless it is 
terminated; and (d) a description of any material change in BFM's 
cross-trade practices during the period covered by the summary report.
    BFM states that these reports will provide the Independent 
Fiduciary with a mechanism for monitoring the operation of the cross-
trade program. BFM represents that the authorization procedures and the 
limited circumstances in which cross-trade transactions will be 
considered, in conjunction with BFM's use of the Optimization Program, 
will prevent BFM from favoring one Account at the expense of another 
Account in a cross-trade transaction.
    12. The equity securities involved in any cross-trade transaction 
will be only those for which there is a generally recognized market 
with adequate pricing information to permit use of the Optimization 
Program for the Accounts. All cross-trades will be effected at prices 
determined according to an established, fixed methodology which will be 
applied uniformly to all Accounts. Under this pricing methodology, each 
cross-trade transaction will be effected at the closing price for the 
equity securities involved on the date of the transaction, as quoted by 
the exchange on which such securities are principally traded or by the 
NASDAQ National Market System (NASDAQ). In the case of domestic equity 
securities traded over-the-counter, other than those traded on NASDAQ, 
the price will be the mean between the closing daily ``bid'' and 
``asked'' prices on the date of the transactions, obtained from 
recognized independent sources, unless such securities have actually 
traded within 24 hours of the cross-trade transaction in which case the 
price will be the last sale price for the securities. However, if more 
than one source is used by BFM to price a particular domestic equity 
security traded over-the-counter, then the price will be equal to the 
average of the highest current independent bid and lowest current 
independent offer obtained from such sources. BFM states that no 
foreign equity securities, other than those traded on a recognized 
foreign securities exchange for which market quotations are readily 
available, will be cross-traded by the Accounts. The pricing 
methodology will be communicated to the Independent Account 
Representative at the beginning of the Account's participation in the 
cross-trade program. The pricing methodology will apply to all cross-
trade transactions implemented by BFM under the proposed exemption.
    BFM states that utilization of an established, fixed pricing 
methodology will prevent it from being able to use any discretion to 
manipulate cross-trades to benefit one Account over another Account. 
Moreover, BFM will in all cases utilize price data obtained from an 
independent pricing source.
    13. A cross-trade transaction will be effected only where the trade 
involves less than 5 percent of the aggregate average daily trading 
volume for the equity securities which are the subject of the 
transaction for the week immediately preceding the completion of the 
transaction. BFM states that this percentage limitation attempts to 
address the potential impact which a large trade might have in the sale 
of equity securities on the open market. Thus, BFM will only engage in 
cross-trade transactions where the size of the trade will ensure that 
the price utilized in the cross-trade will not differ materially from 
what would have been the market price for the equity securities in an 
open market transaction.
    14. BFM represents that where equity securities available for sale 
from a Selling Account present an attractive investment opportunity for 
more than one Buying Account, BFM will make the allocation to that 
Buying Account which is ranked by the Optimization Program as being 
furthest from optimality.\13\ BFM states that each Account's distance 
from optimality can be measured and quantified on a numerical basis at 
any point in time. Cross-trade opportunities would continue to be 
allocated to such a Buying Account until it is brought up to par with 
the Account which is next furthest from optimality. Thereafter, the 
cross-trade opportunities would be allocated to both of these Accounts 
pro rata until they are brought up to the level of the Account which is 
next furthest from optimality, and so on until all cross-trading 
opportunities involving the equity securities in question are 
exhausted. BFM states that this allocation process will operate in a 
mechanical, objective fashion and will not be manipulated in any way by 
BFM to benefit particular Accounts during the operation of the cross-
trading program.
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    \13\The Department is not proposing, nor is the applicant 
requesting, exemptive relief for any violations of Part 4 of Title I 
of the Act which may arise from BFM's allocation of investment 
opportunities to particular Buying Accounts under the proposed 
cross-trading program.
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    15. In summary, the applicant represents that the proposed 
transactions will satisfy the criteria of section 408(a) of the Act 
because, among other things:
    (a) An Independent Fiduciary must provide written authorization, 
which is terminable at will, to BFM to permit the Account to 
participate in the cross-trading program;
    (b) All cross-trade transactions will be effected within three 
business days of the triggering event creating the cross-trade 
opportunity;
    (c) All cross-trade transactions will be effected at a price 
determined pursuant to a established, fixed methodology using 
independent pricing sources and will be applied uniformly to all 
Accounts;
    (d) All cross-trade opportunities will be subject to an allocation 
methodology which is designed to benefit Accounts which are ranked by 
the Optimization Program as being furthest from optimality and will not 
be manipulated by BFM to benefit particular Accounts;
    (e) A cross-trade transaction will be effected only if certain 
volume requirements are satisfied;
    (f) All equity securities (i.e. either foreign or domestic) 
involved in cross-trade transactions will be securities for which there 
is a generally recognized market;
    (g) BFM will receive no additional fees as a result of the proposed 
cross-trade transactions;
    (h) BFM will provide periodic reporting of the cross-trade 
transactions to the Independent Fiduciaries of the participating Plan 
Accounts;
    (i) The opportunity to participate in the cross-trade program will 
save significant sums of money for the Accounts because cross-trading 
reduces brokerage commissions, avoids the bid/ask differential in such 
transactions, and provides more efficient implementation of optimal 
investment strategies;
    (j) Each employee benefit plan comprising a Plan Account which 
participates in the cross-trading program must have total assets of at 
least $25 million, or must be part of a master trust of plans 
maintained by a single employer or controlled group of employers which 
has at least $25 million in total assets; and
    (k) The cross-trade transactions will not involve the assets of any 
Batterymarch Plan.

FOR FURTHER INFORMATION CONTACT: Mr. E. F. Williams of the Department, 
telephone (202) 219-8194. (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 of disqualified 
person from certain other provisions of the Act and/or the Code, 
including any prohibited transaction provisions to which the exemption 
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) Before an exemption may be granted under section 408(a) of the 
Act and/or section 4975(c)(2) of the Code, the Department must find 
that the exemption is administratively feasible, in the interests of 
the plan and of its participants and beneficiaries and protective of 
the rights of participants and beneficiaries of the plan;
    (3) The proposed exemptions, if granted, will be supplemental to, 
and not in derogation of, any other provisions of the Act and/or the 
Code, including statutory or administrative exemptions and transitional 
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
    (4) The proposed exemptions, if granted, will be 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 20th day of May, 1994.
Ivan Strasfeld,
Director of Exemption Determinations, Pension and Welfare Benefits 
Administration, U.S. Department of Labor.
[FR Doc. 94-12716 Filed 5-24-94; 8:45 am]
BILLING CODE 4510-29-P