95-10405. Grant of Individual Exemptions; Bank South, N.A. et al.  

  • [Federal Register Volume 60, Number 81 (Thursday, April 27, 1995)]
    [Unknown Section]
    [Pages 20773-20777]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 95-10405]
    
    
    
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    DEPARTMENT OF LABOR
    [Prohibited Transaction Exemption 95-33; Exemption Application No. D-
    09626, et al.]
    
    
    Grant of Individual Exemptions; Bank South, N.A. et al.
    
    AGENCY: Pension and Welfare Benefits Administration, Labor.
    
    ACTION: Grant of individual exemptions.
    
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    SUMMARY: This document contains exemptions issued by the Department of 
    Labor (the Department) from certain of the prohibited transaction 
    restrictions of the Employee Retirement Income Security Act of 1974 
    (the Act) and/or the Internal Revenue Code of 1986 (the Code).
        Notices were published in the Federal Register of the pendency 
    before the Department of proposals to grant such exemptions. The 
    notices set forth a summary of facts and representations contained in 
    each application for exemption and referred interested persons to the 
    respective applications for a complete statement of the facts and 
    representations. The applications have been available for public 
    inspection at the Department in Washington, DC. The notices also 
    invited interested persons to submit comments on the requested 
    exemptions to the Department. In addition the notices stated that any 
    interested person might submit a written request that a public hearing 
    be held (where appropriate). The applicants have represented that they 
    have complied with the requirements of the notification to interested 
    persons. No public comments and no requests for a hearing, unless 
    otherwise stated, were received by the Department.
        The notices of proposed exemption were issued and the exemptions 
    are being granted solely by the Department because, effective December 
    31, 1978, section 102 of Reorganization Plan No. 4 of 1978 (43 FR 
    47713, October 17, 1978) transferred the authority of the Secretary of 
    the Treasury to issue exemptions of the type proposed to the Secretary 
    of Labor.
    
    Statutory Findings
    
        In accordance with section 408(a) of the Act and/or section 
    4975(c)(2) of the Code and the procedures set forth in 29 CFR part 
    2570, subpart B (55 FR 32836, 32847, August 10, 1990) and based upon 
    the entire record, the Department makes the following findings:
        (a) The exemptions are administratively feasible;
        (b) They are in the interests of the plans and their participants 
    and beneficiaries; and
        (c) They are protective of the rights of the participants and 
    beneficiaries of the plans.
    
    Bank South, N.A. (the Bank) Located in Atlanta, GA
    
    [Prohibited Transaction Exemption 95-33; Application No. D-09626]
    
    Section I--Exemption for In-kind Transfer of Assets
    
        The restrictions of sections 406(a) and 406(b) 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 (F) of the Code, shall not 
    apply as of February 11, 1994, to the in-kind transfer of assets of 
    plans for which the Bank serves as a fiduciary (the Client Plans), 
    other than plans established and maintained by the Bank, that are held 
    in certain collective investment funds maintained by the Bank (the 
    CIFs), in exchange for shares of the Peachtree Funds (the Funds), an 
    open-end investment company registered under the Investment Company Act 
    of 1940 (the 1940 Act) for which the Bank acts as investment adviser, 
    in connection with the termination of such CIFs, provided that the 
    following conditions and the general conditions of Section III below 
    are met:
        (a) No sales commissions or other fees are paid by the Client Plans 
    in connection with the purchase of Fund shares through the in-kind 
    transfer of CIF assets and no redemption fees are paid in connection 
    with the sale of such shares by the Client Plans to the Funds.
        (b) Each Client Plan receives shares of a Fund which have a total 
    net asset value that is equal to the value of the Client Plan's pro 
    rata share of the assets of the CIF on the date of the transfer, based 
    on the current market value of the CIF's assets, as determined in a 
    single valuation performed in the same manner at the close of the same 
    business day using independent sources in accordance with Rule 17a-7(b) 
    of the Securities and Exchange Commission under the 1940 Act and the 
    procedures established by the Funds pursuant to Rule 17a-7 for the 
    valuation of such assets. Such procedures must require that all 
    securities for which a current market price cannot be obtained by 
    reference to the last sale price for transactions reported on a 
    recognized securities exchange or NASDAQ be valued based on an average 
    of the highest current independent bid and lowest current independent 
    offer, as of the close of business on the Friday preceding the weekend 
    of the CIF transfers, determined on the basis of reasonable inquiry 
    from at least three sources that are broker-dealers or pricing services 
    independent of the Bank.
        (c) A second fiduciary who is independent of and unrelated to the 
    Bank (the Independent Fiduciary) receives advance written notice of the 
    in-kind transfer of assets of the CIFs and full written disclosure of 
    information concerning the Funds (including a current prospectus for 
    each of the Funds and a statement describing the fee structure) and, on 
    the basis of such information, authorizes in writing the in-kind 
    transfer of the Client Plan's CIF assets to a corresponding Fund in 
    exchange for shares of the Fund.
        (d) For all transfers of CIF assets to a Fund following the 
    publication of the proposed exemption in the Federal Register (i.e. 
    January 30, 1995), the Bank sends by regular mail to each affected 
    Client Plan the following information: [[Page 20774]] 
        (1) Within 30 days after completion of the transaction, a written 
    confirmation containing:
        (i) The identity of each security that was valued for purposes of 
    the transaction in accordance with Rule 17a-7(b)(4);
        (ii) The price of each such security involved in the transaction;
        (iii) The identity of each pricing service or market maker 
    consulted in determining the value of such securities; and
        (2) Within 90 days after completion of each transfer, a written 
    confirmation that contains:
        (i) The number of CIF units held by the Client Plan immediately 
    before the transfer, the related per unit value, and the total dollar 
    amount of such CIF units; and
        (ii) The number of shares in the Funds that are held by the Client 
    Plan following the transfer, the related per share net asset value, and 
    the total dollar amount of such shares.
        (e) The conditions set forth in paragraphs (e), (f), and (m) of 
    Section II below are satisfied.
    
    Section II--Exemption for Receipt of Fees
    
        The restrictions of sections 406(a) and 406(b) 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 (F) of the Code, shall not 
    apply as of February 11, 1994, to the receipt of fees by the Bank from 
    the Funds for acting as investment adviser to the Funds in connection 
    with the investment in the Funds by Client Plans for which the Bank 
    acts as a fiduciary, including any Client Plan invested in a CIF which 
    transfers its assets to a Fund, provided that the following conditions 
    and the general conditions of Section III are met:
        (a) No sales commissions, loads, charges or similar fees are paid 
    by the Client Plans for the purchase or sale of shares of the Funds and 
    no redemption fees are paid for the sale of shares by the Client Plans 
    to the Funds.
        (b) The price paid or received by a Client Plan for shares in a 
    Fund is the net asset value per share at the time of the transaction, 
    as defined in Section IV(e), and is the same price which would have 
    been paid or received for the shares by any other investor at that 
    time.
        (c) Neither the Bank nor an affiliate, including any officer or 
    director of the Bank, purchases or sells shares of the Funds from or to 
    any Client Plan.
        (d) The Client Plans do not pay any plan-level investment 
    management fees, investment advisory fees, or similar fees to the Bank 
    with respect to any of the assets of such Client Plans which are 
    invested in shares of any of the Funds. This condition does not 
    preclude the payment of investment advisory fees or similar fees by the 
    Funds to the Bank under the terms of an investment advisory agreement 
    adopted in accordance with section 15 of the 1940 Act or any other 
    agreement between the Bank and the Funds which is in compliance with 
    the 1940 Act.
        (e) The combined total of all fees received by the Bank for the 
    provision of services to a Client Plan, and in connection with the 
    provision of services to the Funds in which the Client Plan may invest, 
    are not in excess of ``reasonable compensation'' within the meaning of 
    section 408(b)(2) of the Act.
        (f) The Bank does not receive any fees payable pursuant to Rule 
    12b-1 under the 1940 Act in connection with the transactions.
        (g) The Client Plans are not employee benefit plans sponsored or 
    maintained by the Bank.
        (h) The Independent Fiduciary receives, in advance of any 
    investment by the Client Plan in a Fund, full and detailed written 
    disclosure of information concerning the Funds, including, but not 
    limited to:
        (1) A current prospectus for each Fund in which a Client Plan is 
    considering investing;
        (2) A statement describing the fees for investment advisory or 
    similar services, as well as all other fees to be charged to or paid by 
    the Client Plan and by the Funds, including the nature and extent of 
    any differential between the rates of such fees;
        (3) The reasons why the Bank may consider such investment to be 
    appropriate for the Client Plan;
        (4) A statement describing whether there are any limitations 
    applicable to the Bank with respect to which assets of a Client Plan 
    may be invested in the Funds, and if so, the nature of such 
    limitations; and
        (5) Upon request of the Independent Fiduciary, a copy of the 
    proposed exemption and/or a copy of the final exemption, once such 
    documents become available.
        (i) On the basis of the information described above in paragraph 
    (h) of this Section II, the Independent Fiduciary authorizes in writing 
    the investment of assets of the Client Plan in each Fund, and the fees 
    to be paid by such Funds to the Bank.
        (j) All authorizations made by an Independent Fiduciary regarding 
    investments in a Fund and the fees paid to the Bank are subject to an 
    annual reauthorization wherein any such prior authorization referred to 
    in paragraph (i) of Section II shall be terminable at will by the 
    Client Plan, without penalty to the Client Plan, upon receipt by the 
    Bank of written notice of termination. A form expressly providing an 
    election to terminate the authorization described in paragraph (i) of 
    Section II above (the Termination Form) with instructions on the use of 
    the form must be supplied to the Independent Fiduciary no less than 
    annually. The instructions for the Termination Form must include the 
    following information:
        (1) The authorization is terminable at will by the Client Plan, 
    without penalty to the Plan, upon receipt by the Bank of written notice 
    from the Independent Fiduciary; and
        (2) Failure to return the Termination Form will constitute 
    continued authorization of the Bank to engage in the transactions 
    described in paragraph (i) of Section II on behalf of the Client Plan.
        (k) In the event of an increase in the rate of any fees paid by the 
    Funds to the Bank regarding any investment management services, 
    investment advisory services, or fees for similar services that the 
    Bank provides to the Funds over an existing rate for such services that 
    had been authorized by an Independent Fiduciary, in accordance with 
    paragraph (i) of this Section II, the Bank will, at least thirty (30) 
    days in advance of the implementation of such increase, provide a 
    written notice (which may take the form of a proxy statement, letter, 
    or similar communication that is separate from the prospectus of the 
    Fund and which explains the nature and amount of the increase in fees) 
    to the Independent Fiduciary of each of the Client Plans invested in a 
    Fund which is increasing such fees. Such notice shall be accompanied by 
    a Termination Form. However, if the Termination Form has been provided 
    to the Independent Fiduciary pursuant to this paragraph, then the 
    Termination Form need not be provided again for an annual 
    reauthorization pursuant to paragraph (j) above unless at least six 
    months has elapsed since the form was provided in connection with the 
    fee increase.
        (l) On an annual basis, the Bank provides the Independent Fiduciary 
    of a Client Plan investing in the Funds with:
        (1) A copy of the current prospectus for the Funds and, upon such 
    fiduciary's request, a copy of the Statement of Additional Information 
    for such Funds which contains a description of all fees paid by the 
    Funds to the Bank; and [[Page 20775]] 
        (2) upon the request of such Independent Fiduciary, a report or 
    statement (which may take the form of the most recent financial report, 
    the current Statement of Additional Information for the Fund, or some 
    other written statement) that contains a description of all fees paid 
    by the Fund to the Bank.
        (m) All dealings between the Client Plans and the Funds are on a 
    basis no less favorable to the Client Plans than dealings with other 
    shareholders of the Funds.
    
    Section III--General Conditions
    
        (a) The Bank maintains for a period of six years the records 
    necessary to enable the persons described below in paragraph (b) of 
    Section III to determine whether the conditions of this exemption have 
    been met, except that (1) a prohibited transaction will not be 
    considered to have occurred if, due to circumstances beyond the control 
    the Bank, the records are lost or destroyed prior to the end of the 
    six-year period, and (2) no party in interest other than the Bank shall 
    be subject to the civil penalty that may be assessed under section 
    502(i) of the Act or to the taxes imposed by section 4975(a) and (b) of 
    the Code if the records are not maintained or are not available for 
    examination as required by paragraph (b) below.
        (b) (1) Except as provided in paragraph (b)(2) and notwithstanding 
    any provisions of section 504(a)(2) and (b) of the Act, the records 
    referred to in paragraph (a) of Section III are unconditionally 
    available at their customary location for examination during normal 
    business hours by--
        (i) Any duly authorized employee or representative of the 
    Department or the Internal Revenue Service,
        (ii) Any fiduciary of the Client Plans who has authority to acquire 
    or dispose of shares of the Funds owned by the Client Plans, or any 
    duly authorized employee or representative of such fiduciary, and
        (iii) Any participant or beneficiary of the Client Plans or duly 
    authorized employee or representative of such participant or 
    beneficiary;
        (2) None of the persons described in paragraph (b)(1)(ii) and (iii) 
    shall be authorized to examine trade secrets of the Bank, or commercial 
    or financial information which is privileged or confidential.
    
    Section IV--Definitions
    
        For purposes of this exemption:
        (a) The term ``Bank'' means the Bank South, N.A. and any affiliate 
    thereof as defined below in paragraph (b) of this Section IV.
        (b) An ``affiliate'' of a person includes:
        (1) Any person directly or indirectly through one or more 
    intermediaries, controlling, controlled by, or under common control 
    with the person;
        (2) Any officer, director, employee, relative, or partner in any 
    such person; and
        (3) Any corporation or partnership of which such person is an 
    officer, director, partner, or employee.
        (c) The term ``control'' means the power to exercise a controlling 
    influence over the management or policies of a person other than an 
    individual.
        (d) The term ``Fund'' or ``Funds'' shall include the Peachtree 
    Funds, Inc., or any other diversified open-end investment company 
    registered under the 1940 Act for which the Bank serves as an 
    investment adviser.
        (e) The term ``net asset value'' means the amount for purposes of 
    pricing all purchases and sales calculated by dividing the value of all 
    securities, determined by a method as set forth in the Fund's 
    prospectus and statement of additional information, and other assets 
    belonging to the Fund or portfolio of the Fund, less the liabilities 
    charged to each such portfolio or Fund, by the number of outstanding 
    shares.
        (f) The term ``relative'' means a ``relative'' as that term is 
    defined in section 3(15) of the Act (or a ``member of the family'' as 
    that term is defined in section 4975(e)(6) of the Code), or a brother, 
    a sister, or a spouse of a brother or a sister.
        (g) The term ``Independent Fiduciary'' means a fiduciary of a 
    Client Plan who is independent of and unrelated to the Bank. For 
    purposes of this exemption, the Independent Fiduciary will not be 
    deemed to be independent of and unrelated to the Bank if:
        (1) Such fiduciary directly or indirectly controls, is controlled 
    by, or is under common control with the Bank;
        (2) Such fiduciary, or any officer, director, partner, employee, or 
    relative of the fiduciary is an officer, director, partner, employee or 
    affiliate of the Bank (or is a relative of such persons);
        (3) Such fiduciary directly or indirectly receives any compensation 
    or other consideration for his or her own personal account in 
    connection with any transaction described in this exemption.
        If an officer, director, partner, affiliate or employee of the Bank 
    (or relative of such persons), is a director of such Independent 
    Fiduciary, and if he or she abstains from participation in (i) the 
    choice of the Client Plan's investment adviser, (ii) the approval of 
    any such purchase or sale between the Client Plan and the Funds, and 
    (iii) the approval of any change in fees charged to or paid by the 
    Client Plan in connection with any of the transactions described in 
    Sections I and II above, then paragraph (g)(2) of this Section IV shall 
    not apply.
        (h) The term ``Termination Form'' means the form supplied to the 
    Independent Fiduciary which expressly provides an election to the 
    Independent Fiduciary to terminate on behalf of a Client Plan the 
    authorization described in paragraph (j) of Section II. The Termination 
    Form shall be used at will by the Independent Fiduciary to terminate an 
    authorization without penalty to the Client Plan and to notify the Bank 
    in writing to effect a termination by selling the shares of the Funds 
    held by the Client Plan requesting such termination within one business 
    day following receipt by the Bank of the form; provided that if, due to 
    circumstances beyond the control of the Bank, the sale cannot be 
    executed within one business day, the Bank shall have one additional 
    business day to complete such sale.
    
    Effective Date: The exemption is effective as of February 11, 1994.
        For a more complete statement of the facts and representations 
    supporting the Department's decision to grant this exemption, refer to 
    the notice of proposed exemption published on January 30, 1995, at 60 
    FR 5713.
    
    Written Comments: The applicant submitted the following comments 
    regarding the notice of proposed exemption (the Proposal).
        With respect to the description of the fee structure, the applicant 
    states that the Bank is using the fee offset mechanism described in 
    Section II(d) of the Proposal for Client Plans that first invested in 
    the Funds after the conversion date (i.e. February 14, 1994). As 
    described in the Summary of Facts and Representations in the Proposal 
    (the Summary), Client Plans invested in the CIFs prior to the 
    conversion transaction (described in Section I of the Proposal) 
    currently utilize the credit mechanism under which Plan-level trustee 
    fees are reduced by the investment advisory fees charged at the Fund-
    level pursuant to Section II(c) of Prohibited Transaction Exemption 
    (PTE) 77-4, 42 FR 18732, April 8, 1977.1 The Bank anticipates 
    [[Page 20776]] that the offset mechanism described in Section II(d) of 
    the Proposal will be implemented for all Client Plans as soon as 
    practicable during the current year. Thus, it is the Bank's 
    understanding that the exemption provided by Section II will be 
    applicable upon implementation of the fee offset mechanism. The 
    Department concurs with the applicant's clarification.
    
        \ 1\PTE 77-4, in pertinent part, permits the purchase and sale 
    by an employee benefit plan of shares of a registered, open-end 
    investment company when a fiduciary with respect to the plan is also 
    the investment adviser for the investment company, provided that, 
    among other things, the plan does not pay an investment management, 
    investment advisory or similar fee with respect to the plan assets 
    invested in such shares for the entire period of such investment. 
    Section II(c) of PTE 77-4 states that this condition does not 
    preclude the payment of investment advisory fees by the investment 
    company under the terms of an investment advisory agreement adopted 
    in accordance with section 15 of the Investment Company Act of 1940. 
    Section II(c) states further that this condition does not preclude 
    payment of an investment advisory fee by the plan based on total 
    plan assets from which a credit has been subtracted representing the 
    plan's pro rata share of investment advisory fees paid by the 
    investment company.
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        In addition, Sections I(c) and II(h) of the Proposal and Paragraph 
    8 of the Summary state that each Independent Fiduciary received from 
    the Bank a written statement giving full disclosure of the fee 
    structure prior to investment in the Funds. The Bank would like to 
    clarify that the written statement received by Client Plans that 
    participated in the conversion transaction described the PTE 77-4 
    credit mechanism rather than the fee offset mechanism described in 
    Section II(d) of the Proposal. The applicant states that prior to 
    implementation of the fee offset mechanism for Client Plans that 
    participated in the conversion, each Independent Fiduciary will receive 
    a written statement giving full disclosure of the fee structure 
    described in Section II(d) of the Proposal, and the Bank will receive 
    written authorization from the Independent Fiduciary approving the new 
    fee structure. The Department concurs with the applicant's 
    clarification.
        With respect to fees payable under Rule 12b-1, Section II(f) of the 
    Proposal provides that the Bank may not receive any fees payable 
    pursuant to such Rule in connection with the investment of Plan assets 
    in the Funds. The applicant notes that this condition is consistent 
    with the representations made by the Bank. However, the applicant 
    states that Paragraph 4 of the Summary overstates the representations 
    made by the Bank with regard to 12b-1 fees and requires minor 
    clarification. The third sentence of Paragraph 4 states that ``* * * In 
    addition, the Bank does not and will not receive fees payable pursuant 
    to Rule 12b-1 in connection with transactions involving any shares of 
    the Funds.'' The Bank represents that this statement is true with 
    respect to trust accounts, but should be clarified to limit it to 
    transactions described under the exemption. The Bank otherwise may 
    receive 12b-1 fees for sales of Fund shares to investors other than the 
    Client Plans. The Department concurs with the applicant's 
    clarification.
        With respect to the responsibility for distributing updated 
    prospectuses, Paragraph 8 of the Summary states that ``* * * Client 
    Plan fiduciaries will also receive from Federated [Investors], the 
    Fund's Distributor, an updated prospectus and periodic reports for each 
    Fund.'' The applicant states that while it is true that Federated will 
    prepare the updated prospectuses and periodic reports, these items will 
    be distributed to Client Plans by the Bank, as trustee. The Department 
    concurs with the applicant's clarification.
        With respect to purchases and sales of Fund shares, Section II(c) 
    of the Proposal states that neither the Bank nor any affiliate, 
    including any officer or director of the Bank, may purchase or sell 
    shares of the Funds to any Client Plan. In this regard, the applicant 
    notes that the Fund's distributor will execute all purchases or 
    redemptions of Fund shares by Client Plans. However, the applicant 
    states that the Client Plans will place purchase and redemption orders 
    through the Plan's account representative at the Bank. The Bank wishes 
    to clarify that Section II(c) of the Proposal does not apply to a 
    Client Plan's placement of a purchase or redemption order through its 
    account representative at the Bank where the Fund's distributor 
    executes the purchase or redemption order. The Department concurs with 
    the applicant's clarification.
        With respect to carrying out termination instructions, Section 
    IV(h) of the Proposal and Paragraph 8 of the Summary provide that, upon 
    receipt of an executed Termination Form, the Bank will effect the sale 
    of Fund shares within one business day following receipt of the form; 
    provided that if, due to circumstances beyond the Bank's control, the 
    Bank may have one additional business day to complete the sale. In this 
    regard, the applicant states that Fund shares may not be able to be 
    redeemed in the event of extraordinary circumstances that result in 
    market closure and/or other restrictions on trading mutual fund 
    shares--e.g. natural disaster, war, etc. The Bank would like the 
    Department to clarify that, in such event, the conditions of the 
    exemption are satisfied provided the Bank redeems Fund shares within 
    one business day after the market re-opens and/or Funds are able to be 
    traded. The Department concurs with the applicant's clarification.
        Accordingly, after consideration of the entire record, the 
    Department has determined to grant the exemption.
        For Further Information Contact: Mr. E.F. Williams of the 
    Department, telephone (202) 219-8194. (This is not a toll-free number.)
    
    Delaware Trust Capital Management, Inc. (DTCM), Located in Wilmington, 
    DE
    
    [Prohibited Transaction Exemption 95-34; Exemption Application No. D-
    09853]
    
    Exemption
    
        The sanctions resulting from the application of section 4975 of the 
    Code, by reason of section 4975(c)(1) (A) through (E) of the Code, 
    shall not apply to the sale by certain rollover individual retirement 
    accounts (the IRAs) of their interests in certain securities (the 
    Securities) to DTCM, a disqualified person with respect to the IRAs, 
    provided the following conditions are satisfied: 1) the sale is a one-
    time transaction for cash; 2) no commissions or other expenses are paid 
    by the IRAs in connection with the sale; 3) the IRAs receive the 
    greater of: a) the fair market value of the Securities as of June 30, 
    1994, plus accrued interest, less principal repayments received, or b) 
    the fair market value of the Securities as of the time of the sale as 
    determined by a qualified, independent expert.2
    
        \2\Pursuant to 29 CFR 2510.3-2(d), the IRAs are not within the 
    jurisdiction of Title I of the Act. However, there is jurisdiction 
    under Title II of the Act pursuant to section 4975 of the Code.
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        For a more complete statement of the facts and representations 
    supporting the Department's decision to grant this exemption, refer to 
    the notice of proposed exemption published on March 20, 1995 at 60 FR 
    14793.
        For Further Information Contact: Gary H. Lefkowitz of the 
    Department, telephone (202) 219-8881. (This is not a toll-free number.)
    
    Shippers Paper Products Co., 401(k) Plan (the Plan), Located in 
    Glenview, IL
    
    [Prohibited Transaction Exemption 95-35; Application No. D-09866]
    
    Exemption
    
        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 sale by the Plan of Group Annuity Contract, No. 
    GA-4725 (the GAC) issued by Mutual Benefit Life Insurance Company 
    (Mutual Benefit) to Illinois Tool Works [[Page 20777]] Inc., a party in 
    interest with respect to the Plan; provided the following conditions 
    are satisfied: (1) The sale is a one-time transaction for cash; (2) the 
    Plan receives no less than the fair market value of the GAC at the time 
    of the sale; (3) the Plan's trustee, acting as independent fiduciary 
    for the Plan, has determined that the proposed sale price is not less 
    than the current fair market value of the GAC; and (4) the Plan's 
    trustee has determined that the proposed transaction is appropriate for 
    and in the best interests of the Plan and its participants and 
    beneficiaries.
        For a more complete statement of the facts and representations 
    supporting the Department's decision to grant this exemption, refer to 
    the notice of proposed exemption published on February 10, 1995 at 60 
    FR 8089.
        For Further Information Contact: Virginia J. Miller of the 
    Department, telephone (202) 219-8971. (This is not a toll-free number.)
    
    General Information
    
        The attention of interested persons is directed to the following:
        (1) The fact that a transaction is the subject of an exemption 
    under section 408(a) of the Act    and/or section 4975(c)(2) of the 
    Code does not relieve a fiduciary or other party in interest or 
    disqualified person from certain other provisions to which the 
    exemptions does not apply and the general fiduciary responsibility 
    provisions of section 404 of the Act, which among other things require 
    a fiduciary to discharge his duties respecting the plan solely in the 
    interest of the participants and beneficiaries of the plan and in a 
    prudent fashion in accordance with section 404(a)(1)(B) of the Act; nor 
    does it affect the requirement of section 401(a) of the Code that the 
    plan must operate for the exclusive benefit of the employees of the 
    employer maintaining the plan and their beneficiaries;
        (2) These exemptions are supplemental to and not in derogation of, 
    any other provisions of the Act and/or the Code, including statutory or 
    administrative exemptions and transactional rules. Furthermore, the 
    fact that a transaction is subject to an administrative or statutory 
    exemption is not dispositive of whether the transaction is in fact a 
    prohibited transaction; and
        (3) The availability of these exemptions is subject to the express 
    condition that the material facts and representations contained in each 
    application accurately describes all material terms of the transaction 
    which is the subject of the exemption.
    
        Signed at Washington, DC, this 24th day of April 1995.
    Ivan Strasfeld,
    Director of Exemption Determinations, Pension and Welfare Benefits 
    Administration, U.S. Department of Labor.
    [FR Doc. 95-10405 Filed 4-26-95; 8:45 am]
    BILLING CODE 4510-29-P
    
    

Document Information

Effective Date:
2/11/1994
Published:
04/27/1995
Department:
Labor Department
Entry Type:
Uncategorized Document
Action:
Grant of individual exemptions.
Document Number:
95-10405
Dates:
The exemption is effective as of February 11, 1994.
Pages:
20773-20777 (5 pages)
Docket Numbers:
Prohibited Transaction Exemption 95-33, Exemption Application No. D- 09626, et al.
PDF File:
95-10405.pdf