Proposed Exemptions; Paloma Securities L.P. & Boston Global Advisors, Inc. et al.

DEPARTMENT OF LABOR

Pension and Welfare Benefits Administration

[Application No. D-09660, et al.

Proposed Exemptions; Paloma Securities L.P. & Boston Global

Advisors, Inc. 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

All interested persons are invited to submit written comments or

request for a hearing on the pending exemptions, unless otherwise

stated in the Notice of Proposed Exemption, 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, D.C.

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, D.C. 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.

Paloma Securities L.P. (Paloma) & Boston Global Advisors, Inc. (BGA),

Located in Boston, Massachusetts

[Application No. D-09660]

Proposed Exemption

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)(1) (A) through (D) and

406(b)(1) and (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 lending

of securities to Paloma by employee benefit plans (including commingled

investment funds holding plan assets) for which BGA, an affiliate of

Paloma, acts as securities lending agent (or sub-agent) and to the

receipt of compensation by BGA in connection with these transactions,

provided that the following conditions are met:

1. Neither BGA, Paloma nor an affiliate of either has discretionary

authority or control with respect to the investment of the plan assets

involved in the transaction, or renders investment advice (within the

meaning of 29 CFR 2510.3-21(c) with respect to those assets;

2. Any arrangement for BGA to lend plan securities to Paloma in

either an agency or sub-agency capacity will be approved in advance by

a plan fiduciary who is independent of Paloma and BGA;

3. A plan may terminate the agency or sub-agency arrangement at any

time without penalty on five business days notice;

4. The plan will receive from Paloma (either by physical delivery

or by book entry in a securities depository, wire transfer or similar

means) by the close of business on or before the day the loaned

securities are delivered to Paloma, collateral consisting of cash,

securities issued or guaranteed by the U.S. Government or its agencies

or instrumentalities, or irrevocable bank letters of credit issued by a

person other than Paloma or an affiliate thereof, or any combination

thereof, or other collateral permitted under PTE 81-6, having, as of

the close of business on the preceding business day, a market value

[[Page 19087]] initially equal to at least 102 percent of the market

value of the loaned securities and, if the market value of the

collateral falls below 100 percent, Paloma will deliver addition

collateral on the following day such that the market value of the

collateral will again equal 102 percent;

5. All procedures regarding the securities lending activities will

at a minimum conform to the applicable provisions of Prohibited

Transaction Exemptions (PTEs) 81-6 and 82-63;

6. Paloma will indemnify the plan against any losses due to its use

of the borrowed securities;

7. The plan will receive the equivalent of all distributions made

to holders of the borrowed securities during the term of the loan,

including, but not limited to, cash dividends, interest payments,

shares of stock as a result of stock splits and rights to purchase

additional securities, or other distributions;

8. Prior to any plan's approval of the lending of its securities to

Paloma, a copy of this exemption, if granted, (and the notice of

pendency) will be provided to the plan; and

9. Only plans with total assets having an aggregate market value of

at least $50 million will be permitted to lend securities to Paloma.

Summary of Facts and Representations

1. Paloma is a Delaware limited partnership which is a broker-

dealer registered with the Securities and Exchange Commission (SEC) and

a member of the National Association of Securities Dealers.1 As of

December 31, 1993, Paloma had in excess of $400 million in combined

equity. Paloma is approximately 99 percent owned by Paloma Partners

Holdings L.P. (PPH), which in turn is more than 90 percent owned by

Paloma Partners, L.P. (PPLP), a Delaware limited partnership.

1The company's name was legally changed to Paloma

Securities L.P. from AKT Associates L.P. effective June 1, 1993.

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2. Acting as principal, Paloma actively engages in the borrowing

and lending of securities, with daily outstanding loan volume averaging

several billion dollars. Paloma utilizes borrowed securities to satisfy

the trading requirements of the Paloma group, or to re-lend to other

broker-dealers and others who need a particular security for various

periods of time. All borrowings by Paloma conform to the Federal

Reserve Board's Regulation T. Pursuant to Regulation T, permitted

borrowing purposes include making delivery of securities in the case of

short sales, failures of a broker to receive securities it is required

to deliver or other similar situations.

3. BGA, a wholly owned subsidiary of PPH, was organized as a

Delaware corporation in August 1993 with its principal office in

Boston. BGA is a broker-dealer and investment advisor, in each case

registered as such with the SEC.

4. BGA was formed to provide securities lending services, as agent,

to institutional clients. BGA, pursuant to authorization from its

client, negotiates the terms of loans with borrowers pursuant to a

client-approved form of loan agreement and otherwise acts as a liaison

between the lender (and its custodian) and the borrower to facilitate

the lending transaction. BGA has responsibility for monitoring receipt

of all required collateral and marking such collateral to market daily

so that adequate levels of collateral are maintained. BGA also monitors

and evaluates on a continuing basis the performance and

creditworthiness of the borrowers. BGA does not act as a custodian with

respect to the client's portfolio of securities being loaned. Custody

of such securities is lodged with the client's bank or other custodian.

However, BGA may be authorized from time to time by a client to receive

and hold pledged collateral and invest cash collateral pursuant to

guidelines established by the client. All of BGA's procedures for

lending securities are designed to comply with the applicable

conditions of Prohibited Transaction Exemption (PTE) 81-6 and PTE 82-

63.2

\2\PTE 81-6 (46 FR 7527, January 23, 1981, as amended at 52 FR

18754, May 19, 1987) provides an exemption under certain conditions

from section 406(a)(1) (A) through (D) of the Act and the

corresponding provisions of section 4975(c) of the Code for the

lending of securities that are assets of an employee benefit plan to

certain broker-dealers or banks which are parties in interest.

PTE 82-63 (47 FR 14804, April 6, 1982) provides an exemption

under specified conditions from section 406(b)(1) of the Act and

section 4975(c)(1)(E) of the Code for the payment of compensation to

a plan fiduciary for services rendered in connection with loans of

plan assets that are securities.

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5. BGA may be retained occasionally by primary securities lending

agents to provide securities lending services in a sub-agent capacity

with respect to portfolio securities of clients of such primary lending

agents. As securities lending sub-agent, BGA's role under the lending

transactions (i.e., negotiating the terms of loans with borrowers

pursuant to a client-approved form of loan agreement and monitoring

receipt of, and marking to market, required collateral) parallels those

under lending transactions for which BGA acts as primary lending agent

on behalf of its clients.

6. When a loan is collateralized with cash, the cash will be

invested for the benefit and at the risk of the client, and resulting

earnings (net of a rebate to the borrower) comprise the compensation to

the plan in respect of such loan. Where collateral consists of

obligations other than cash, the borrower pays a fee (loan premium)

directly to the lending plan.

7. Paloma and BGA request an exemption for the lending of

securities owned by certain pension plans for which BGA serves as

securities lending agent or sub-agent (referred to hereinafter as

client-plans)3 to Paloma, following disclosure of its affiliation

with Paloma, and for the receipt of compensation by BGA in connection

with such transactions. BGA will have no discretionary authority or

control over these client-plans' decisions concerning the acquisition

or disposition of securities available for loan. Its discretion will be

limited to activities such as negotiating the terms of the securities

loans with Paloma and (to the extent granted by the plan fiduciary)

investing any cash collateral received in respect of the loans. Because

BGA, under the proposed arrangement, would have discretion to lend plan

securities to Paloma, and because Paloma is an affiliate of BGA, the

lending of securities to Paloma by plans for which BGA serves as

securities lending agent (or sub-agent) may be outside the scope of

relief provided by PTE 81-6 and PTE 82-63.4

\3\For the sake of simplicity, future references to BGA's

performance of services as securities lending agent should be deemed

to include its parallel performance as securities lending sub-agent

and references to client-plans should be deemed to refer to plans

for which BGA is acting as sub-agent with respect to securities

lending activities, unless otherwise indicated specifically or by

the context of the reference.

4Condition 1 of PTE 81-6 requires, in part, that neither

the borrower nor an affiliate of the borrower has discretionary

authority or control with respect to the investment of the plan

assets involved in the transaction.

PTE 82-63 permits the payment of compensation to a plan

fiduciary for the provision of securities lending services only if

the loan of securities itself is not prohibited under section 406(a)

of the Act.

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Several safeguards, described more fully below, are incorporated in

the application in order to ensure the protection of the plan assets

involved in the transactions. In addition, the applicants represent

that the proposed lending program incorporates the relevant conditions

contained in PTE 81-6 and PTE 82-63.

8. Where BGA is the direct securities lending agent, a fiduciary of

a client-plan who is independent of BGA and Paloma will sign a

securities lending [[Page 19088]] agency agreement with BGA (the Agency

Agreement) before the plan participates in a securities lending

program. The Agency Agreement will, among other things, describe the

operation of the lending program, prescribe the form of securities loan

agreement (Loan Agreement) to be entered into on behalf of the plan

with borrowers, specify the securities which are available to be lent,

required margin and daily marking-to-market, and provide a list of

permissible borrowers, including Paloma. The Agency Agreement will also

set forth the basis and rate for BGA's compensation from the plan for

the performance of securities lending services.

9. The Agency Agreement will contain provisions to the effect that

if Paloma is designated by the client-plan as an approved borrower (i)

the client-plan will acknowledge that Paloma is an affiliate of BGA and

(ii) BGA will represent to the client-plan that each and every loan

made to Paloma on behalf of the client-plan will be at market rates and

in no event less favorable to the client-plan than a loan of such

securities, made at the same time and under the same circumstances, to

an unaffiliated borrower.

10. When BGA is lending securities under a sub-agency arrangement,

the primary lending agent will enter into a securities lending agency

agreement (the primary lending agreement) with a fiduciary of a client-

plan who is independent of such primary lending agent, BGA or Paloma,

before the plan participates in the securities lending program. The

primary lending agent will be unaffiliated with BGA or Paloma. The

primary lending agreement will contain substantive provisions akin to

those in the Agency Agreement relating to the description of the

operation of the lending program, use of an approved form of Loan

Agreement, specification of securities which are available to be lent,

required margin and daily marking-to-market, and provision of a list of

approved borrowers (which will include Paloma). The primary lending

agreement will specifically authorize the primary lending agent to

appoint sub-agents, to facilitate its performance of securities lending

agency functions. Where BGA is to act as such a sub-agent the primary

lending agreement will expressly disclose that BGA is to so act. The

primary lending agreement will also set forth the basis and rate for

the primary lending agent's compensation from the client-plan for the

performance of securities lending services and will authorize the

primary lending agent to pay a portion of its fee, as the primary

lending agent determines in its sole discretion, to any sub-agent(s) it

retains pursuant to the authority granted under such agreement.

Pursuant to its authority to appoint sub-agents, the primary

lending agent will enter into a securities lending sub-agency agreement

(the Sub-Agency Agreement) with BGA under which the primary lending

agent will retain and authorize BGA, as sub-agent, to lend securities

of the primary lending agent's client-plans, subject to the same terms

and conditions as are specified in the primary lending agreement. Thus,

for example, the form of Loan Agreement will be the same as that

approved by the plan fiduciary in the primary lending agreement and the

list of permissible borrowers under the Sub-Agency Agreement (which

will include Paloma) will be limited to those approved borrowers listed

as such under the primary lending agreement.

BGA represents that the Sub-Agency Agreement will contain

provisions which are in substance comparable to those described in

paragraphs 8 and 9 above, which would appear in an Agency Agreement in

situations where BGA is the primary lending agent. In this regard, BGA

will make the same representation in the Sub-Agency Agreement as

described in paragraph 9 above with respect to arm's-length dealing

with Paloma. The Sub-Agency Agreement will also set forth the basis and

rate for BGA's compensation to be paid by the primary lending agent.

11. In all cases, BGA will maintain transactional and market

records sufficient to assure compliance with its representation that

all loans to Paloma are effectively at arm's-length terms. Such records

will be provided to the appropriate plan fiduciary in the manner and

format agreed to with the lending fiduciary, without charge to the

plan. A client-plan may terminate the Agency Agreement (or the primary

lending agreement) at any time, without penalty to the plan, on five

business days notice.

12. BGA will enter into the same form of Loan Agreement with Paloma

on behalf of client-plans as it does with all other borrowers. An

independent fiduciary of the client-plan will approve the terms of the

Loan Agreement. The Loan Agreement will specify, among other things,

the right of the client-plan to terminate a loan at any time and the

plan's rights in the event of any default by Paloma. The Loan Agreement

will explain the basis for compensation to the client-plan for lending

securities to Paloma under each category of collateral. The Loan

Agreement also will contain a requirement that Paloma must pay all

transfer fees and transfer taxes related to the security loans.

13. Before entering into the Loan Agreement, Paloma will furnish

its most recent available audited and unaudited financial statements to

BGA, and in turn such statements will be provided to a client-plan

before the plan is asked to approve the terms of the Loan Agreement.

The Loan Agreement will contain a requirement that Paloma must give

prompt notice at the time of a loan of any material adverse changes in

its financial condition since the date of the most recently furnished

financial statements. If any such changes have taken place, BGA will

not make any further loans to Paloma unless an independent fiduciary of

the plan has approved the loan in view of the changed financial

condition.

14. As noted above, the agreement by BGA to provide securities

lending services, as agent, to a client-plan will be embodied in the

Agency Agreement. The client-plan and BGA will agree to the arrangement

under which BGA will be compensated for its services as lending agent

prior to the commencement of any lending activity. Such agreed upon fee

arrangement will be set forth in the Agency Agreement and thereby will

be subject to the prior written approval of a fiduciary of the client-

plan who is independent of Paloma and BGA. Similarly, with respect to

arrangements under which BGA is acting as securities lending sub-

agent, the agreed upon fee arrangement of the primary lending agent

will be set forth in the primary lending agreement, and such agreement

will specifically authorize the primary lending agent to pay a portion

of such fee, as the primary lending agent determines in its sole

discretion, to any sub-agent, including BGA, which is to provide

securities lending services to the plan.5 The client-plan will be

provided with any reasonably available information which is necessary

for the plan fiduciary to make a determination whether to enter into or

continue to participate under the Agency Agreement (or the primary

lending agreement) and any other reasonably available information which

[[Page 19089]] the plan fiduciary may reasonably request.

5The foregoing provisions describe arrangements

comparable to conditions c and d of PTE 82-63 which require that the

payment of compensation to a ``lending fiduciary'' is made under a

written instrument and is subject to prior written authorization of

an independent ``authorizing fiduciary.'' In the event that a

commingled investment fund will participate in the securities

lending program, the special rule applicable to such funds

concerning the authorization of the compensation arrangement set

forth in paragraph f of PTE 82-63 will be satisfied.

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15. Each time a plan loans securities to Paloma pursuant to the

Loan Agreement, BGA will reflect in its records the material terms of

the loan, including the securities to be loaned, the required level of

collateral, and the fee or rebate payable. The terms of each loan will

be at least as favorable to the client-plan as those of a comparable

arm's-length transaction between unrelated parties.

16. The client-plan will be entitled to the equivalent of all

interest, dividends and distributions on the loaned securities during

the loan period. The Loan Agreement will provide that the client-plan

may terminate any loan at any time. Upon a termination, Paloma will be

contractually obligated to return the loaned securities to the client-

plan within five business days of notification (or such longer period

of time permitted pursuant to a class exemption). If Paloma fails to

return the securities within the designated time, the client-plan will

have the right under the Loan Agreement to purchase securities

identical to the borrowed securities and apply the collateral to

payment of the purchase price and any other expenses of the plan

associated with the sale and/or purchase.

17. BGA will establish each day a written schedule of lending fees

and rebate rates in order to assure uniformity of treatment among

borrowing brokers and to limit the discretion BGA would have in

negotiating securities loans to Paloma. Loans to Paloma on any day will

be made at rates on the daily schedule or at rates which may be more

advantageous to the client-plans. In no case will loans be made to

Paloma at rates below those on the schedule. The rebate rates (in

respect of cash-collateralized loans made by client-plans) which are

established will take into account the potential demand for loaned

securities, the applicable bench-mark cost of funds indices (typically,

Federal Funds, overnight repo rate or the like) and anticipated

investment return on overnight investments which are permitted by the

relevant plan fiduciary. The lending fees (in respect of loans made by

client-plans collateralized by other than cash) which are established

will be set daily to reflect conditions as influenced by potential

market demand.

BGA will negotiate rebate rates for cash collateral payable to each

borrower, including Paloma, on behalf of a plan. Where, for example,

cash collateral derived from an overnight loan is intended to be

invested in a generic repurchase agreement, any rebate fee determined

with respect to an overnight repurchase agreement benchmark will be set

below the applicable ``ask'' quotation therefor. Where cash collateral

is derived from a loan with an expected maturity date (term loan) and

is intended to be invested in instruments with similar maturities, the

maximum rebate fee will be less than the investment return (assuming no

investment default). With respect to any loan to Paloma, BGA will never

negotiate a rebate rate with respect to such loan which would produce a

zero or negative return to the client-plan (assuming no default on the

investments related to the cash collateral from such loan where BGA has

investment discretion over the cash collateral). BGA represents that

the written rebate rate established daily for cash collateral under

loans negotiated with Paloma will not exceed the rebate rate which

would be paid to a similarly situated unrelated borrower with respect

to a comparable securities lending transaction. BGA will disclose the

method for determining the maximum daily rebate rate as described above

to an independent fiduciary of a client-plan for approval before

lending any securities to Paloma on behalf of the plan.

18. For collateral other than cash, the applicable loan fee in

respect of any outstanding loan is reviewed daily for competitiveness

and adjusted, where necessary, to reflect market terms and conditions.

With respect to any calendar quarter, on average 50 percent or more of

the outstanding dollar value of securities loans negotiated on behalf

of client-plans will be to unrelated borrowers, and so the

competitiveness of the loan fee will be tested in the marketplace.

Accordingly, loans to Paloma should result in competitive rate income

to the lending client-plan. At all times, BGA will effect loans in a

prudent and diversified manner. BGA will lend securities to requesting

borrowers on a ``first come, first served'' basis, as a means of

assuring uniformity of treatment among borrowers.

19. Under the Loan Agreement, Paloma will agree to indemnify and

hold harmless the applicable client-plan (including the sponsor and

fiduciaries of such client-plan) from any and all damages, losses,

liabilities, costs and expenses (including attorney's fees) which the

client-plan may incur or suffer arising in any way from the use by

Paloma of the loaned securities or any failure of Paloma to deliver

loaned securities in accordance with the provisions of the Loan

Agreement or to otherwise comply with the terms of the Loan Agreement.

20. The client-plan will receive collateral from Paloma by physical

delivery, book entry in a securities depository, wire transfer or

similar means by the close of business on or before the day the loaned

securities are delivered to Paloma. The collateral will consist of

cash, securities issued or guaranteed by the U.S. Government or its

agencies or irrevocable bank letters of credit (issued by a person

other than Paloma or its affiliates) or such other types of collateral

which might be permitted by the Department under a class exemption. The

market value of the collateral on the close of business on the day

preceding the day of the loan will be at least 102 percent of the

market value of the loaned securities. The Loan Agreement will give the

client-plan a continuing security interest in and a lien on the

collateral. BGA will monitor the level of the collateral daily. If the

market value of the collateral falls below 100 percent (or such greater

percentage as agreed to by the parties) of that of the loaned

securities, BGA will require Paloma to deliver by the close of business

the next day sufficient additional collateral to bring the level back

to at least 102 percent.

21. Each client-plan participating in the lending program will be

sent a monthly transaction report. The monthly report will provide a

list of all security loans outstanding and closed for a specified

period. The report will identify for each open loan position, the

securities involved, the value of the security for collateralization

purposes, the current value of the collateral, the rebate or loan

premium (as the case my be) at which the security is loaned, and the

number of days the security has been on loan.

22. Only client-plans with total assets having an aggregate market

value of at least $50 million will be permitted to lend securities to

Paloma. This restriction is intended to assure that any lending to

Paloma will be monitored by an independent fiduciary of above average

experience and sophistication in matters of this kind.

23. In summary, the applicants represent that the described

transactions will satisfy the statutory criteria of section 408(a) of

the Act because: (1) The form of the Loan Agreement pursuant to which

any loan is effected will be approved by a fiduciary of the client-plan

who is independent of Paloma and BGA before a client-plan lends any

securities to Paloma; (2) the lending arrangements will permit the

client-plans to lend to Paloma, a major borrower of securities, and

will enable [[Page 19090]] the plans to diversify the list of eligible

borrowers and earn additional income from the loaned securities on a

secured basis, while continuing to receive any dividends, interest

payments and other distributions due on those securities; (3) the

client-plan will receive sufficient information concerning Paloma's

financial condition before the plan lends any securities to Paloma; (4)

the collateral on each loan to Paloma initially will be at least 102

percent of the market value of the loaned securities, which is in

excess of the 100 percent collateral required under PTE 81-6, and will

be monitored daily by BGA; (5) the client-plans will receive a monthly

report, so that an independent fiduciary of the client-plans also may

monitor loan activity, fees, the level of the collateral and loan

return/yield; (6) BGA will have no discretionary authority or control

over the plan's acquisition or disposition of securities available for

loan; (7) the terms of each loan will be at least as favorable to the

plans as those of a comparable arm's-length transaction between

unrelated parties; and (8) all the procedures under the proposed

transactions will, at a minimum, conform to the applicable provisions

of PTE 81-6 and PTE 82-63.

FOR FURTHER INFORMATION CONTACT: Louis Campagna of the Department,

telephone (202) 219-8883. (This is not a toll-free number.)

Bank of Ashland, Inc. (the Bank), Located in Ashland, Kentucky

[Application Nos. D-09841 thru D-09843]

Proposed Exemption

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

406(b)(2) of the Act and the sanctions resulting from the application

of section 4975 of the Code, by reason of section 4975(c)(1) (A)

through (E) of the Code, shall not apply as of December 23, 1994, to

the cash sale of certain collateralized mortgage obligations (CMOs) by

six employee benefit plans for which the Bank acts as trustee (the

Plans) to Ashland Bankshares, Inc. (the Holding Company), a party in

interest with respect to the Plans, provided that the following

conditions were met:

(a) Each sale was a one-time transaction for cash;

(b) Each Plan received an amount which was equal to the greater of

(i) the outstanding principal balance for the CMOs owned by the Plan,

plus accrued but unpaid interest, at the time of sale, (ii) the

amortized cost for the CMOs owned by the Plan, plus accrued but unpaid

interest, as determined by the Bank based on the outstanding principal

balance for each CMO on the date of sale, or (iii) the fair market

value of the CMOs owned by the Plan as determined by an independent,

qualified appraiser at the time of the sale;

(c) The Plans did not pay any commissions or other expenses with

respect to the sale;

(d) The Bank, as trustee of the Plans, determined that the sale of

the CMOs is in the best interests of each Plan and their participants

and beneficiaries at the time of the transaction;

(e) The Bank took all appropriate actions necessary to safeguard

the interests of the Plans and their participants and beneficiaries in

connection with the transactions; and

(f) Each Plan received a reasonable rate of interest on the CMOs

during the period of time it held the CMOs.

EFFECTIVE DATE: The proposed exemption, if granted, will be effective

as of December 23, 1994.

Summary of Facts and Representations

1. The Bank is a wholly-owned subsidiary of the Holding Company.

The Bank serves as trustee of the Plans and has investment discretion

for the assets of the Plans.

The Plans are the John O. Jones, M.D., PSC Money Purchase Pension

Plan (the Jones Plan); the Michael G. Ehrie, Jr., M.D., PSC Money

Purchase Pension Plan (the Ehrie Pension Plan); the Michael G. Ehrie,

Jr., M.D., PSC Profit Sharing Plan (the Ehrie P/S Plan); the Simons

Real Estate Money Purchase Pension Plan (the Simons Plan); the Buchanan

Sound & Communications, Inc. Profit Sharing Plan (the Buchanan Plan);

and the Bank of Ashland, Inc. Profit Sharing Plan (the Bank Plan). All

of the Plans are defined contribution plans.

As of December 23, 1994, the Jones Plan had five participants and

total assets of $713,790; the Ehrie Pension Plan had seven participants

and total assets of $322,168; the Ehrie P/S Plan had seven participants

and total assets of $363,513; the Simons Plan had two participants and

total assets of $134,791; the Buchanan Plan had 32 participants and

total assets of $97,841; and the Bank Plan had 58 participants and

total assets of $2,427,300. Thus, as of December 23, 1994, the Plans

had 111 participants and total assets of approximately $4,059,403.

2. The Bank represents that at various times during the third and

fourth quarters of 1993 and the first quarter of 1994, assets of the

Plans were invested in the CMOs. The CMOs were purchased by the Bank

from broker-dealers that were independent of the Plans as well as the

Bank and its affiliates (including the Holding Company). The CMOs are

investment products through which investors purchase an interest in a

pool of residential mortgage loans. Investors receive payments of

principal and interest. The interest payments change monthly in

relation to a specific index, such as the London Interbank Offered Rate

(LIBOR) or the U.S. Federal Reserve's Cost of Funds Index (COFI),

contained in a formula used to calculate the interest rate for such

securities. The repayment of principal is usually guaranteed by various

U.S. government agencies, such as the Federal Home Loan Mortgage

Corporation (FHLMC or ``Freddie Mac'') or the Federal National Mortgage

Association (FNMA or ``Fannie Mae'').

3. The CMOs are described as follows: (i) FHLMC Multiclass Mortgage

Participation Certificates, Series 1625, Class SB, SE, and SJ; (ii)

FHLMC Multiclass Mortgage Participation Certificates, Series 1655,

Class S; (iii) FNMA Guaranteed REMIC Pass-Through Certificates, Fannie

Mae REMIC Trust 1993-102, Class S; (iv) FNMA Guaranteed REMIC Pass-

Through Certificates, Fannie Mae REMIC Trust 1993-110, Class SH; (v)

FNMA Guaranteed REMIC Pass-Through Certificates, Fannie Mae REMIC Trust

1993-139, Class SL and SC; (vi) FNMA Guaranteed REMIC Pass-Through

Certificates, Fannie Mae REMIC Trust 1993-202, Class VJ; and (vii) GE

Capital Mortgage Services, Inc., REMIC Multi-Class Pass-Through

Certificates, Series 1993-17, Class 17-A20.\6\

\6\The applicant states that the GE Capital Mortgage Services,

Inc. REMIC Multi-Class Pass-Through Certificates, Series 1993-17,

Class 17-A20 (the GE CMO) was a publicly-offered security. In this

regard, the applicant notes that if a plan acquires a publicly-

offered security that grants the plan an equity interest in an

entity, the plan's assets include the security but not any of the

underlying assets of the entity (see 29 CFR 2510.3-101(a)(2) and

(b)). Therefore, the applicant represents that the assets of the

Plans that own the GE CMO do not include any of the mortgages

underlying the GE CMO.

The applicant states further that if a plan acquires a

``guaranteed governmental mortgage pool certificate'', the plan's

assets include the certificate but not any of the mortgages

underlying such certificate (see 29 CFR 2510.3-101(i). A

``guaranteed governmental mortgage pool certificate'' is a

certificate (i) that is backed by, or evidences an interest in,

specified mortgages or participation interests, and (ii) whose

interest and principal payments are guaranteed by the Government

National Mortgage Association (GNMA), FHLMC, or FNMA. Thus, the

applicant represents that since all of the CMOs, except for the GE

CMO, have interest and principal payments payable under the CMO

guaranteed by either FHLMC or FNMA, the assets of the Plans do not

include any of the mortgages underlying such CMOs.

[[Page 19091]]

All of the certificates mentioned above are structured as a real

estate mortgage investment conduit (``REMIC'') under section 860D of

the Code. The various classes of certificates receive principal and

interest payments in differing portions and at differing times from the

cash flows provided from the monthly payments received on the

underlying mortgages.

The repayment of principal from the underlying mortgages fluctuates

significantly. To facilitate the structuring of such REMICs, the

prepayments on the pools of mortgages are commonly measured relative to

a variety of prepayment models. The model used for these REMICs is the

Public Securities Association's standard prepayment model or ``PSA''.

This model assumes that mortgages will prepay at an annual rate of .2%

in the first month after origination, then the prepayment rate

increases at an annual rate of .2% per month up to the 30th month after

origination and then the prepayment rate is constant at 6% per annum in

the 30th and later months. This assumption is called 100 PSA.

The REMIC structure allocates principal payments to the various

classes in varying amounts as principal payments are made. The exact

date of repayment of all principal to any class of certificates is not

known until the final maturity date. The maturity for the various

classes is referred to as the ``weighted average life'' (WAL). The WAL

of a security refers to the average amount of time expressed in years

that will elapse from the date of its issuance until each dollar of

principal has been repaid to the investor based on the PSA assumption.

The holders of all classes of the certificates will receive all of

their principal back. However, the timing of when that principal is

returned is dependent on how quickly the underlying mortgages are

repaid or refinanced. In no event will the time for the recovery of

principal exceed the final maturity date of the underlying mortgages.

Each month the monthly payments on the underlying mortgages are

collected and distributed to the holders of the various REMIC classes.

Interest on the certificates is paid monthly and is determined

according to a specific formula. The certificates owned by the Plans,

described in further detail below, are ``inverse floaters'' with an

interest rate indexed to one month LIBOR or COFI. These certificates

are ``inverse floaters'' because the formula used to calculate the

interest rate, which adjusts monthly for each certificate, usually

raises the rate when the index falls and lowers the rate when the index

rises.

All of the CMOs were purchased by the Bank, as trustee of the

Plans, from either Mark Ross (Mr. Ross) of Kemper Securities, Inc.

(Kemper Securities), located in Houston, Texas, or Robert Conroy (Mr.

Conroy) of First Institutional Securities, Inc. (FIS), located in

Clifton, New Jersey. The Bank states that neither the brokers (i.e. Mr.

Ross and Mr. Conroy) nor their brokerage firms have any relationship to

the Plans, the employers which maintain the Plans, the Bank, or any

affiliates of the Bank.

A description of each of the CMOs, including the respective

interest rate formulas, WAL and PSA assumptions are set forth below in

the APPENDIX.

4. At the time of purchase, the Bank anticipated that interest

rates generally would decline and that each CMO would be retired within

three years of the date of purchase due to prepayments of the

underlying mortgages in each pool as obligors refinanced their

mortgages at lower interest rates. The Bank thought that the CMOs would

yield the Plans a high rate of return as well as offset the adverse

effects declining interest rates would have on the Plans' floating rate

assets during this period. The Bank states that the ideal time to buy

CMOs that are ``inverse floaters'' is when interest rates, as measured

by indices such as LIBOR or COFI, are high and are expected to go down

during the time the investor is holding the CMOs. However, when

interest rates rise, the rate of return on the CMOs goes down and the

securities become less valuable. The Bank notes that initially the

Plans were receiving monthly interest payments on the CMOs at rates

that were significantly above the market rate, as measured by interest

rate indexes at the time. As a result of increases in interest rates

during 1994, and the expectation of additional interest rate increases,

the Bank anticipated that the CMOs would not be retired for at least 15

years because of the projected decrease in the prepayments of mortgages

held in each pool. Furthermore, as a result of the increase in interest

rates, both the rate of return on the CMOs (as measured by the monthly

interest payments) and the market value of the CMOs decreased

significantly. Thus, the Bank states that it became increasing

difficult to find third party investors who were willing to purchase

the CMOs from the Plans without the Plans incurring significant losses

on their investments.7

\7\The Department is expressing no opinion in this proposed

exemption regarding whether the acquisition and holding of the CMOs

by the Plans violated any of the fiduciary responsibility provisions

of Part 4 of Title I of the Act.

The Department notes that section 404(a) of the Act requires,

among other things, that a fiduciary of a plan act prudently, solely

in the interest of the plan's participants and beneficiaries, and

for the exclusive purpose of providing benefits to participants and

beneficiaries when making investment decisions on behalf of a plan.

Section 404(a) of the Act also states that a plan fiduciary should

diversify the investments of a plan so as to minimize the risk of

large losses, unless under the circumstances it is clearly prudent

not to do so.

In this regard, the Department is not providing any opinion as

to whether a particular category of investments or investment

strategy would be considered prudent or in the best interests of a

plan as required by section 404 of the Act. The determination of the

prudence of a particular investment or investment course of action

must be made by a plan fiduciary after appropriate consideration to

those facts and circumstances that, given the scope of such

fiduciary's investment duties, the fiduciary knows or should know

are relevant to the particular investment or investment course of

action involved, including the plan's potential exposure to losses

and the role the investment or investment course of action plays in

that portion of the plan's investment portfolio with respect to

which the fiduciary has investment duties (see 29 CFR 2550.404a-1).

The Department also notes that in order to act prudently in making

investment decisions, a plan fiduciary must consider, among other

factors, the availability, risks and potential return of alternative

investments for the plan. Thus, a particular investment by a plan,

which is selected in preference to other alternative investments,

would generally not be prudent if such investment involves a greater

risk to the security of a plan's assets than comparable investments

offering a similar return or result.

---------------------------------------------------------------------------

5. Robert W. Nichols (Mr. Nichols), First Vice President of Morgan

Keegan & Company, Inc., an independent, qualified appraiser located in

Louisville, Kentucky, calculated the fair market value of the CMOs held

by the Plans as of December 15, 1994. Mr. Nichols solicited bids for

all of the CMOs from at least three different independent broker-

dealers, including First National Bank of Knoxville in Knoxville,

Tennessee; First Commerce Securities in Memphis, Tennessee; and Merrill

Lynch Institutional Sales in Charleston, West Virginia. Based on

pricing information obtained from these broker-dealers, Mr. Nichols

advised the Bank that the fair market value of the CMOs was

significantly below the original purchase price of the CMOs (as noted

in the table below in Paragraph 6). The Bank states that Mr. Nichols is

not related to or associated with the Bank, the Holding Company, the

Plans or any of the brokers involved in the purchases of the CMOs.

6. In addition, the Bank calculated the value of the CMOs held by

the Plans as of December 23, 1994, using an amortized cost computation.

The Bank states that the computation of the amortized cost was arrived

at by a series of computations. First, the Bank determined the amount

of the premium paid upon purchase (Purchase price - 100 = Premium). The

par value or face value of a bond is referred to as 100. The Bank

states that since all of CMOs paid interest monthly, the premium was

allocated monthly in order to be properly matched to the income. The

number of months that the premium was allocated over was determined by

the WAL at the time of purchase (expressed in years) multiplied by

twelve (WAL x 12 = amortizing months).8 Then, the Bank

determined the amount of premium that was allocated to each month by

dividing the premium by the amortizing months. To determine how much

premium still remained to be amortized, the Bank subtracted from the

amortizing months those months that the Plan actually held the CMO. The

Bank states that the remaining months were multiplied by the monthly

premium amount to arrive at the premium balance. The premium was added

to the par price (i.e. 100) to arrive at the amortized cost remaining

for the CMO. Thus, the Bank states that the formula for calculating

amortized cost was as follows:9 [[Page 19092]]

\8\As noted previously in Paragraph 3, the WAL for a CMO is

determined at the time of purchase based on various assumptions

about the speed of principal repayments and interest rate changes,

using financial data provided by independent sources (such as

Bloomberg Financial Markets). The Bank states that changes to the

formula for calculating the amortized cost based on WAL assumptions

other than at the time of purchase would not provide an

administratively acceptable method of allocating the premium for a

CMO because such a method would require constant adjustments which

are not material to the concept of income recognition as it relates

to CMOs.

\9\For example, assume that a particular CMO investment has been

held by a Plan for 6 months. If the WAL at the time of purchase of

the CMO was 2.02 years and the cost was 102.25 based on the par

value being referred to as 100, the formula would be (((102.25 - 100

= 2.25) / 2.02 x 12 = 24.24) = .09282178) x ((2.02 x 12 =

24.24) - 6) = 1.69307 + 100 = 101.69307). As the formula indicates,

the amortized cost using the WAL at purchase would be 101.69307 as

compared to the actual cost of 102.25. Therefore, the Bank states

that the amortized cost formula caused the Plan to be paid an amount

for this CMO investment which was slightly less than the Plan's

original cost (i.e. basis) but more than the total remaining

principal balance plus accrued but unpaid interest.

---------------------------------------------------------------------------

[GRAPHIC][TIFF OMITTED]TN14AP95.000

The Bank also calculated the remaining principal balance on the CMO

investments held by each Plan as of December 23, 1994, based on the

face amount of the securities and the principal and interest payments

received by the Plans through that date. As shown in the table below,

the amortized cost of the CMOs held by the Plans exceeded the remaining

principal balances on the CMOs at the time of the transaction. In

addition, the table below shows the fair market value of the CMOs held

by each Plan, based on Mr. Nichols' appraisal of the CMOs on December

15, 1994.

------------------------------------------------------------------------

Plan Amort. cost Prin. bal. Mkt. value

------------------------------------------------------------------------

Jones Plan.............. $226,612 $224,473 $105,711

Ehrie Pension Plan...... 79,449 78,410 41,581

Ehrie P/S Plan.......... 105,046 104,028 52,924

Simons Plan............. 23,085 22,745 12,002

Buchanan Plan........... 18,240 18,192 10,445

Bank Plan............... 646,699 644,433 302,519

------------------------------------------------------------------------

The Bank determined that a sales price for the CMOs owned by each

of the Plans based on amortized cost, plus the total principal and

interest payments received by the Plans as of the date of sale, would

produce a total return to the Plans which would exceed the Plans' total

original cost for the CMOs (as illustrated below).

----------------------------------------------------------------------------------------------------------------

Principal

Plan Interest rec.'d + Total receipts Total cost

collected amort. cost

----------------------------------------------------------------------------------------------------------------

Jones Plan...................................... $25,372 $242,078 $267,450 $246,254

Ehrie Pension Plan.............................. 8,060 86,039 94,099 86,812

Ehrie P/S Plan.................................. 11,367 115,849 127,216 117,982

Simons Plan..................................... 2,716 25,313 28,029 25,717

Buchanan Plan................................... 1,414 20,049 21,463 20,100

Bank Plan....................................... 72,953 693,782 766,735 705,680

----------------------------------------------------------------------------------------------------------------

The Bank represents that each Plan received a reasonable rate of

interest on the CMOs during the period of time it held the CMOs. In

this regard, the Bank states that the weighted annualized rate of

interest received by each Plan on its CMOs, net of amortization cost,

was as follows: (i) 8.19% for the Jones Plan; (ii) 8.06% for the Ehrie

Pension Plan; (iii) 7.58% for the Ehrie P/S Plan; (iv) 8.68% for the

Simons Plan; (v) 7.09% for the Buchanan Plan; and (vi) 8.23% for the

Bank Plan.10

\10\The formula for the annualized rate of return for the months

held was as follows: (Interest income collected less amortization of

premiums realized) divided by (average outstanding balance) divided

by (average months held) and multiplied by 12.

---------------------------------------------------------------------------

7. The Bank represents that when the market value and the

availability of buyers for the CMOs declined, the CMOs became illiquid

investments. Therefore, the Bank believed that the CMOs were no longer

suitable investments for the Plans. The Bank states that any sale of

the CMOs on the open market would have produced significant losses for

the Plans and the individual accounts of each Plan

[[Page 19093]] participant involved. In order to prevent such losses,

the Bank sold the CMOs to the Holding Company at an amount which for

each Plan was the greater of either: (i) The outstanding principal

balance for the CMOs owned by the Plan, plus accrued but unpaid

interest, at the time of sale; (ii) the amortized cost for the CMOs

owned by the Plan, plus accrued but unpaid interest, as determined by

the Bank based on the outstanding principal balance for each CMO on the

date of sale; or (iii) the fair market value of the CMOs owned by the

Plan as determined by an independent, qualified appraiser at the time

of the sale.

The Bank, as trustee of the Plans, believed that the transactions

were in the best interests of the Plans and their participants and

beneficiaries. The Bank states that the transactions allowed the Plan

participants to divest themselves of an illiquid investment and shifted

to the Holding Company the risks associated with selling the CMOs

during the current interest rate environment. As a result, the

individual participants in the Plans were no longer subject to the

losses that would have resulted from the participants receiving a

distribution of their account balances based on the fair market value

of the CMOs. The Bank wanted to sell the CMOs to the Holding Company by

December 31, 1994, in order to benefit participants of the Plans

receiving distributions from their individual accounts during 1995. In

this regard, the Bank notes that distributions made to Plan

participants are based on the fair market value of the plan assets at

the year-end valuation. At the time of the transaction, the fair market

value of the CMOs was substantially less than the amount the Plans

received as a result of the transactions.

8. The Bank represents that it took all appropriate actions

necessary to safeguard the interests of the Plans and their

participants and beneficiaries in connection with the sale of the CMOs

to the Holding Company. The Bank ensured that each Plan received the

appropriate amount of cash from the Holding Company in exchange for

such Plan's CMOs. The Bank reviewed an updated appraisal of the CMOs to

ensure that there was an accurate calculation by the independent

appraiser of the fair market value of each of the CMOs held by the

Plans, based on pricing information obtained from independent broker-

dealers. The Bank also ensured that the Plans did not pay any

commissions or other expenses in connection with the transactions.

9. In summary, the applicant represents that the transactions

satisfied the statutory criteria of section 408(a) of the Act and

section 4975 of the Code because: (a) Each sale was a one-time

transaction for cash; (b) each Plan received an amount which was equal

to the greater of either (i) the outstanding principal balance for the

CMOs owned by the Plan, plus accrued but unpaid interest, at the time

of sale, (ii) the amortized cost for the CMOs owned by the Plan, plus

accrued but unpaid interest, as determined by the Bank based on the

outstanding principal balance for each CMO on the date of sale, or

(iii) the fair market value of the CMOs owned by the Plan as determined

by an independent, qualified appraiser at the time of the sale; (c) the

Plans did not pay any commissions or other expenses with respect to the

sale; (d) the Bank, as trustee of the Plans, determined that the sale

of the CMOs was in the best interests of each Plan and its participants

and beneficiaries; (e) the Bank took all appropriate actions necessary

to safeguard the interests of the Plans and their participants and

beneficiaries in connection with the transactions; and (f) each Plan

received a reasonable rate of interest on the CMOs during the period of

time it held the CMOs.

Notice to Interested Persons

The applicant states that notice of the proposed exemption shall be

made by first class mail to the appropriate Plan fiduciaries within

fifteen (15) days following the publication of the proposed exemption

in the Federal Register. This notice shall include a copy of the notice

of proposed exemption as published in the Federal Register and a

supplemental statement (see 29 CFR 2570.43(b)(2)) which informs

interested persons of their right to comment on and/or request a

hearing with respect to the proposed exemption. Comments and requests

for a public hearing are due within forty-five (45) days following the

publication of the proposed exemption in the Federal Register.

Appendix

A. The FHLMC Multiclass Mortgage Participation Certificates, Series

1625, Class SB, SE and SJ, were issued by Freddie Mac as part of an

issue of multiclass participation certificates with 45 various classes

in the total amount of $1.5 trillion. The Bank, as trustee of the

Plans, purchased portions of three of those classes on December 2,

1993. The Certificates are secured by first lien residential mortgages

with an original term to maturity of 180 months or less.

This REMIC uses a 200 PSA assumption regarding principal repayment

(2 times 100 PSA). The WAL for classes SB, SE and SJ based on a 200 PSA

was 3.4, 2.0 and 2.0 years, respectively, at the time of purchase.

The formula for the interest on class SB is 57.000005--

(LIBOR x 6.785715) with a minimum rate of 0.0% and a maximum rate of

9.5%. For class SE, the interest is 17.999996--(LIBOR x 2.571428) with

a minimum rate of 0.0% and a maximum rate of 17.999996%. For class SJ,

the interest is 18.529405--(LIBOR x 2.647058) with a minimum rate of

0.0% and a maximum rate of 18.529405%. ``LIBOR'' refers to one-month

LIBOR, a rate established daily by independent market data sources in

London, England, based on the arithmetic mean of quotations offered by

creditworthy international banks dealing in Eurodollars. LIBOR moves up

or down daily as the interest rates charged by such banks move up or

down. The movement of LIBOR has an inverse relationship on the interest

paid on all inverse floating rate classes. As interest rates increased

from February through December 1, 1994, the interest paid on most of

these classes declined. The initial interest rates for classes SB, SE

and SJ were 9.5%, 9.803569% and 10.091908%, respectively. The interest

rates as of December 1, 1994 for classes SB, SE and SJ were 9.5%, 2.57%

and 2.65%. The interest rates can drop to 0.0% for classes SB, SE and

SJ if LIBOR reaches or exceeds 8.4, 8.0 and 7.0 percent, respectively.

LIBOR on December 23, 1994 was 5.94%.

B. The FHLMC Multiclass Mortgage Participation Certificates, Series

1655, Class S, were issued by Freddie Mac as part of an issue of

multiclass certificates with 20 various classes in the total amount of

$500 million. The Bank, as trustee of the Plans, purchased a portion of

a class on December 7, 1993. The Certificates are secured by first lien

residential mortgages with an original term to maturity of 180 months

or less.

This REMIC uses a 250 PSA assumption regarding principal repayment

(2.5 times 100 PSA). The WAL for class S based on a 250 PSA was 3.5

years at the time of purchase.

The formula for the interest on class S is 18.983333333--(LIBOR x

2.333333) with a minimum rate of 3.0% and a maximum rate of

18.98333333%. As discussed above, the movement of LIBOR has an inverse

relationship on the interest paid on all inverse floating rate classes.

As interest rates increased from February through December 1994, the

interest paid on the class S securities declined. The initial interest

rate was 11.5458%. As of December 15, 1994, the interest rate was

4.54%. The interest rate can drop to 3.0% if LIBOR reaches 6.85% or

higher. As noted [[Page 19094]] above, LIBOR was 5.94% on December 23,

1994.

C. The FNMA Guaranteed REMIC Pass-Through Certificates, Fannie Mae

REMIC Trust 1993-102, Class S, were issued by Fannie Mae as part of an

issue of pass-through certificates with 18 various classes in the total

amount of $500 million. The Bank, as trustee of the Plans, purchased a

portion of one class on September 2, 1993. The Certificates are secured

by first lien residential mortgages with an original term to maturity

of 180 months or less.

This REMIC uses a 175 PSA assumption regarding principal repayment

(1.75 times 100 PSA). The WAL for class S based on a 175 PSA was 3.5

years at the time of purchase.

The formula for the interest on class S is 26.95598--(LIBOR x

3.85086) with a minimum rate of 0.0% and a maximum rate of 26.95598%.

The movement of LIBOR has an inverse relationship on the interest paid

on all inverse floating rate classes. As interest rates increased from

February through December 1994, the interest paid on class S securities

declined. The initial interest rate was 14.92206%. As of December 23,

1994, the interest rate was 3.97%. The interest rate can drop to 0.0%

if LIBOR reaches 7% or higher.

D. The FNMA Guaranteed REMIC Pass-Through Certificates, Fannie Mae

REMIC Trust 1993-110, Class SH, were issued by Fannie Mae as part of an

issue of pass-through certificates with 28 various classes in the total

amount of $925 million. The Bank, as trustee of the Plans, purchased a

portion of one class on October 5, 1993. The Certificates are secured

by first lien residential mortgages with an original term to maturity

of 360 months or less.

This REMIC uses a 200 PSA assumption regarding principal repayment

(2 times 100 PSA). The WAL for class SH based on a 200 PSA was 2.8

years at the time of purchase.

The formula for the interest on class SH is 16.9929--(COFI x

1.857144) with a minimum rate of 0.0% and a maximum rate of 16.9929%.

In this case, ``COFI'' refers to the U.S. Federal Reserve's 11th

District Cost of Funds Index for the second month next preceding the

month in which such interest accrual period commences. COFI moves up or

down as interest rates move up or down. The movement of COFI will have

an inverse relationship on the interest paid on all inverse floating

rate classes. COFI does not react immediately to changes in interest

rates. Unlike most of the other certificates discussed herein, the

interest paid on class SH securities declined only slightly during the

period from February to December, 1994. The initial interest rate was

9.24677%. As of December 1, 1994, the interest rate was 9.217%.

However, additional interest rate increases will significantly decrease

the interest rate on these certificates. The interest rate can drop to

0.0% if COFI reaches 9.15% or higher. COFI was 4.367% for December

1994.11

\ 11\ The applicant states that COFI is adjusted monthly,

instead of daily.

---------------------------------------------------------------------------

E. The FNMA Guaranteed REMIC Pass-Through Certificates, Fannie Mae

REMIC Trust 1993-139, Class SL and SC, were issued by Fannie Mae as

part of an issue of pass-through certificates with 59 various classes

in the total amount of $1,650,350,872. The Bank, as trustee of the

Plans, purchased a portion of two classes on September 7 and 21, 1993.

The Certificates are secured by first lien residential mortgages with

an original term to maturity of 360 months or less.

This REMIC uses a 200 PSA assumption regarding principal repayment

(2 times 100 PSA). The WAL for class SL and SC based on a 200 PSA was

4.0 and 3.5 years, respectively, at the time of purchase.

The formula for the interest on class SL is 70.05484--(LIBOR x

8.193548) with a minimum rate of 0.0% and a maximum rate of 12.7%. For

class SC, the interest is 23.94--(LIBOR x 2.8) with a minimum rate of

0.0% and a maximum rate of 23.94%. The movement of LIBOR has an inverse

relationship on the interest paid on all inverse floating rate classes.

As interest rates increased from February through December 1994, the

interest paid on the class SC securities declined. The initial interest

rates for SL and SC classes were 12.7% and 15.015%, respectively. As of

December 23, 1994, the interest rates were 12.7% and 8.2%,

respectively. The interest rate for both the SL and SC class can drop

to 0.0% if LIBOR reaches or exceeds 8.55%. As noted above, LIBOR was

5.94% on December 23, 1994.

F. The FNMA Guaranteed REMIC Pass-Through Certificates, Fannie Mae

REMIC Trust 1993-202, Class VJ, were issued by Fannie Mae as part of an

issue of pass-through certificates with 76 various classes in the total

amount of $2 trillion. The Bank, as trustee of the Plans, purchased a

portion of one class on October 28, 1993. The Certificates are secured

by first lien residential mortgages with an original term to maturity

of 360 months or less.

This REMIC uses a 200 PSA assumption regarding principal repayment

(2 times 100 PSA). The WAL for class VJ based on a 200 PSA was 3.5

years at the time of purchase.

The formula for the interest on class VJ is 21.58 - (LIBOR x 2.6)

with a minimum rate of 0.0% and a maximum rate of 21.58%. The movement

of LIBOR has an inverse relationship on the interest paid on all

inverse floating rate classes. As interest rates increased from

February through December 1994, the interest paid on class VJ

securities declined. The initial interest rate was 13.455%. As of

December 23, 1994, the interest rate was 6.06%. The interest rate can

drop to 0.0% if LIBOR reaches 8.3% or higher.

G. The GE Capital Mortgage Services, Inc., REMIC Mult-Class Pass-

Through Certificates, Series 1993-17, Class 17-A20, were issued by GE

Capital Mortgage Services, Inc., as part of an issue of pass-through

certificates with 28 senior classes and 6 junior classes in the total

amount of $493,750,000. The Bank, as trustee of the Plans, purchased a

portion of one of the senior classes on November 30, 1993. The

Certificates are secured by first lien residential mortgages with an

original term to maturity of 360 months or less.

This REMIC uses a 340 PSA assumption regarding principal repayment

(3.4 times 100 PSA). The WAL for class A20 based on a 340 PSA was 2.5

years at the time of purchase. The repayment of principal is not

guaranteed by any U.S. Government Agency. As with the other REMICs, the

timing of when the principal is returned is dependent on how quickly

the underlying mortgages are actually repaid or refinanced.

The formula for the interest on class A20 is 17.875 - (LIBOR x

2.166666) with a minimum rate of 0.0% and a maximum rate of 17.875%.

The movement of LIBOR has an inverse relationship on the interest paid

on all inverse floating rate classes. As interest rates increased from

February through December 1994, the interest paid on class A20

securities declined. The initial interest rate was 10.96875%. As of

December 23, 1994, the interest rate was 4.87%. The interest rate can

drop to 0.0% if LIBOR reaches 8.25% or higher.

FOR FURTHER INFORMATION CONTACT: Mr. E.F. Williams of the Department,

telephone (202) 219-8194. (This is not a toll-free number.)

The Neiman Marcus Group, Inc. Employee Savings Plan (the Plan),

Located in Chestnut Hill, Massachusetts

[Application No. D-09917]

Proposed Exemption

The Department is considering granting an exemption under the

authority of section 408(a) of the Act [[Page 19095]] and section

4975(c)(2) of the Code and in accordance with the procedures set forth

in 29 C.F.R. part 2570, subpart B (55 FR 32836, 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) proposed

interest-free loans to the Plan (the Loans) by The Neiman Marcus Group,

Inc. (the Employer), the sponsor of the Plan, with respect to

guaranteed investment contract number 62638 (the GIC) issued by

Confederation Life Insurance Company (Confederation Life); and (2) the

Plan's potential repayment of the Loans (the Repayments); provided that

the following conditions are satisfied:

(A) No interest and/or expenses are paid by the Plan;

(B) The Loans are made in lieu of amounts due the Plan under the

terms of the GIC;

(C) The Repayments are restricted to cash proceeds paid to the Plan

by Confederation Life and/or any state guaranty association or other

responsible third party making payment with respect to the GIC (the GIC

Proceeds), and no other Plan assets are used to make the Repayments;

and

(D) The Repayments will be waived to the extent the Loans exceed

the GIC Proceeds.

Summary of Facts and Representations

1. The Plan is a defined contribution 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 contributions. As of September 30, 1994 the Plan had

approximately 7,805 participants and total assets of approximately

$68,729,722. The trustee of the Plan is Wachovia Bank of North

Carolina, N.A. (the Trustee). The Employer, a Delaware public

corporation with its principal place of business in Chestnut Hill,

Massachusetts, is a retailer of clothing, fashion apparel, and home

furnishings.

2. The Plan provides for individual participant accounts (the

Accounts) and for participant-directed investment of each Account. Plan

participants direct investment of their Accounts among options (the

Funds) offered by the Plan. Participants' directions and changes of

directions, with respect to investment of the Accounts among the Funds,

are permitted on a quarterly basis. The Funds include a fixed income

fund (the F.I. Fund), which invests in, among other things, guaranteed

investment contracts issued by insurance companies.

2. Among the assets of the F.I. Fund is the GIC, a guaranteed

investment contract issued to the Plan in 1992 by Confederation Life

Insurance Company (Confederation Life), a Canadian insurance company

doing business in the United States. The GIC is a single-deposit,

benefit-responsive contract, principal amount $3,500,000, earning

interest at a guaranteed annual rate of 7.91 percent (the Contract

Rate). The GIC's terms enable the F.I. Fund to make withdrawals (the

Withdrawals) to effect, in accordance with the terms of the Plan,

benefit distributions, in-service withdrawals, participant loans, and

participant-directed transfers of Account balances to other Funds

offered by the Plan (the Withdrawal Events). Interest at the Contract

Rate is credited daily, calculated on the balance remaining deposited

under the GIC. If interest earned under the GIC exceeds the amount

withdrawn, the difference is paid annually (the Interest Payments) on

the anniversary date of the GIC's effective date. All Interest Payments

have been made when due through April 3, 1994. The terms of the GIC

also require Confederation Life to make a final payment to the Plan on

March 31, 1997 (the Maturity Payment) in the amount of the GIC's

accumulated book value, representing total principal deposits plus

interest earnings at the Contract Rate less previous withdrawals. As of

December 31, 1994, the GIC had a total accumulated book value of

$3,684,555.

3. Commencing August 11, 1994 (the Receivership Date), insurance

regulatory authorities in Canada and the state of Michigan instituted

proceedings to place Confederation Life in receivership (the

Receivership)12, and normal account activity with respect to

Confederation Life contracts was stayed pending resolution of the

Receivership. Since the commencement of the Receivership, the Plan has

received no payments under the GIC to enable the F.I. Fund to fund

Withdrawal Events, and the Employer represents that it is uncertain

whether, or to what extent, the Plan will receive any payments to

enable funding of future Withdrawal Events. Additionally, the Employer

represents that it is uncertain whether and to what extent the Maturity

Payment under the GIC will be paid. The Employer desires to alleviate

the F.I. Fund of risks associated with investments in the GIC, and to

enable the F.I. Fund to resume and continue funding the Withdrawal

Events. Accordingly, the Employer proposes to make loans to the Plan

(the Loans) in lieu of the amounts due from Confederation Life under

the terms of the GICs, and is requesting an exemption for the Loans,

and for their potential repayment (the Repayments) by the Plan, under

the terms and conditions described herein.

\12\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 proposed exemption,

the Department is not proposing relief for any violations of Part 4

which may have arisen as a result of the acquisition and holding of

the GIC.

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5. The Employer and the Trustee will execute a written agreement

embodying all the terms and conditions of the Loans and the Repayments

(the Agreement). Under the Agreement, the Employer agrees to make a

Loan to the F.I. Fund each time Confederation Life fails to pay the

Plan the full amount of any Withdrawal in accordance with the terms of

the Plan. The amount of each Loan will be the difference between the

amount due the Plan as a Withdrawal and the amounts actually paid with

respect to that Withdrawal by Confederation Life, any conservator,

liquidator, trustee or other person performing similar functions with

respect to Confederation Life, or any state guaranty fund or other

person or entity (other than the Employer) acting as surety, insurer or

guarantor with respect to Confederation Life with respect to the GIC

(collectively, the GIC Payors). The Loans will be made only in lieu of

amounts due with respect to Withdrawals to fund Withdrawal Events, but

not in lieu of amounts due the Plan in the form of the annual Interest

Payments. In the event the Receivership and any rehabilitation of

Confederation Life are not resolved by January 1, 2001, the Employer

will make a final Loan in the amount of the Maturity Payment which

would have been due March 31, 1997, less all previous Advances pursuant

to the Agreement. The Employer will not credit interest under the

Agreement past March 31, 1997, and that portion of any Account which is

attributable to amounts remaining invested in the GIC after March 31,

1997 will cease to earn interest under the Agreement.13 Any Loans

made by the Employer after the maturity date of March 31, 1997 will be

based on the Maturity Value of the GIC.

13 The Department notes that this exemption, if granted,

will not affect the rights of any participant or beneficiary with

respect to claims under section 404 of the Act in connection with

any aspect of the GIC transactions.

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6. The Agreement provides that the Loans are to be repaid, but only

from payments made to the Plan pursuant to the GIC by the GIC Payors.

No other [[Page 19096]] Plan assets will be available for repayment of

the Loans. If amounts received by the Plan from the GIC Payors (the GIC

Proceeds) are not sufficient to repay fully the Loans, 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. To the extent the Plan receives GIC Proceeds in excess of the

total amount of the Loans, such additional amounts will be retained by

the Plan and allocated among the Accounts invested in the F.I. Fund.

7. In summary, the applicant represents that the proposed

transaction satisfies the criteria of section 408(a) of the Act for the

following reasons: (1) The Loans enable the Plan to resume the full

funding of the Withdrawal Events; (2) The Loans will protect the Plan's

investment in the GIC; (3) The Plan will pay no interest or incur any

expenses with respect to the Loans; (4) Repayment of the Loans will be

restricted to payments by the GIC Payors and no other Plan assets will

be involved in the transactions; (5) Repayment of the Loan will be

waived to the extent the Plan recoups less from the GIC Payors than the

total amount of the Loans; and (6) In the event the Plan receives GIC

Proceeds in excess of the Guaranteed Amount, such amounts will be

retained by the Plan and allocated among the Accounts.

FOR FURTHER INFORMATION CONTACT: Ronald Willett of the Department (202)

219-8881. (This is not a toll-free number.)

Guarantee Mutual Life Company (Guarantee Mutual), Located in Omaha,

NE

[Application No. D-09941]

Proposed Exemption

Based on the facts and representations set forth in the

application, 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).14

14For purposes of this exemption, reference to provisions of

Title I of the Act, unless otherwise specified, refer also to the

corresponding provisions of the Code.

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Section I. Covered Transaction

If the exemption is granted, the restrictions of section 406(a) of

the Act and the sanctions resulting from the application of section

4975 of the Code, by reason of section 4975(c)(1) (A) through (D) of

the Code, shall not apply to the proposed receipt of common stock of

The Guarantee Life Companies, Inc. (GLCI), or the receipt of cash or

policy credits by an eligible policyholder (the Eligible Policyholder)

of Guarantee Mutual which is an employee benefit plan (the Plan), other

than an Eligible Policyholder which is a plan sponsored by Guarantee

Mutual for its own employees,15 in exchange for the termination of

such Eligible Plan Policyholder's membership interest in Guarantee

Mutual, in accordance with the terms of a plan of demutualization (the

Plan of Conversion or the Conversion Plan) adopted by Guarantee Mutual

and implemented pursuant to the Nebraska Insurers Demutualization Act

(the Demutualization Act), Nebraska Revised Statutes, Sections 44-6101

through 44-6120.

15Guarantee Mutual is not requesting, nor is the

Department providing exemptive relief herein with respect to the

distributions of stock to plans that Guarantee Mutual or its

affiliates maintain for their own employees. Guarantee Mutual

represents that such stock would constitute qualifying employer

securities within the meaning of section 407(d)(5) of the Act and

that section 408(e) of the Act would apply to such distributions. In

this regard, the Department expresses no opinion on whether such

distributions would satisfy the terms and conditions of section

408(e) of the Act.

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The proposed exemption is subject to the general conditions set

forth below in Section II.

Section II. General Conditions

(a) The Conversion Plan is implemented in accordance with

procedural and substantive safeguards that are imposed under Nebraska

law and is subject to the review and supervision by the Director of the

Department of Insurance of the State of Nebraska (the Director).

(b) The Director reviews the terms of the options that are provided

to Eligible Policyholders of Guarantee Mutual, as part of such

Director's review of the Conversion Plan, and the Director only

approves the Conversion Plan following a determination that such

Conversion Plan is fair and equitable to all Eligible Policyholders.

(c) Each Eligible Policyholder has an opportunity to comment on the

Conversion Plan and decide whether to vote to approve such Conversion

Plan after full written disclosure is given such Eligible Policyholder

by Guarantee Mutual, of the terms of the Conversion Plan.

(d) Any election by an Eligible Plan Policyholder to receive stock,

cash or policy credits, pursuant to the terms of the Conversion Plan is

made by one or more independent fiduciaries (the Independent

Fiduciaries) of such Plan and neither Guarantee Mutual nor any of its

affiliates exercises any discretion or provides investment advice with

respect to such election.

(e) After each Eligible Policyholder entitled to receive stock is

allocated at least 10 shares of common stock, additional consideration

is allocated to Eligible Policyholders who own participating policies

based on actuarial formulas that take into account each participating

policy's contribution to the surplus of Guarantee Mutual which formulas

have been approved by the Director.

(f) All Eligible Plan Policyholders participate in the transactions

on the same basis within their class groupings as other Eligible

Policyholders that are not Plans.

(g) No Eligible Policyholder pays any brokerage commissions or fees

in connection with their receipt of stock or in connection with the

implementation of the commission-free sales program.

(h) All of Guarantee Mutual's policyholder obligations remain in

force and are not affected by the Conversion Plan.

Section III. Definitions

For purposes of this proposed exemption:

(a) The term ``Guarantee Mutual'' means Guarantee Mutual Insurance

Company and any affiliate of Guarantee Mutual as defined in paragraph

(b) of this Section III.

(b) An ``affiliate'' of Guarantee Mutual includes--

(1) Any person directly or indirectly through one or more

intermediaries, controlling, controlled by, or under common control

with Guarantee Mutual. (For purposes of this paragraph, the term

``control'' means the power to exercise a controlling influence over

the management or policies of a person other than an individual.)

(2) Any officer, director or partner in such person, and

(3) Any corporation or partnership of which such person is an

officer, director or a 5 percent partner or owner.

(c) The term ``Eligible Policyholder'' means a policyholder who is

eligible to vote and to receive consideration in a demutualization.

Such policyholder is a policyholder of the mutual insurer on the day

the plan of conversion is adopted by the board of directors of the

insurer.

(d) The term ``policy credit'' means an increase in accumulation

account value (to which no surrender or similar charges are applied) in

the general account or an increase in a dividend accumulation on a

policy. [[Page 19097]]

Summary of Facts and Representations

1. Guarantee Mutual is a mutual life insurance company organized in

1901 under the laws of the State of Nebraska. It provides group life

and health insurance to employers and life insurance and annuities to

individuals. Guarantee Mutual transacts business in forty-six states

and District of Columbia. As of December 31, 1993, Guarantee Mutual had

total assets of approximately $975 million and more than $20 billion of

life insurance policies in force.

As a mutual life insurance company, Guarantee Mutual has no

stockholders. Policyholders are members of Guarantee Mutual and are

entitled to vote to elect directors of the company and would be

entitled to share in the assets of the company if it were liquidated.

2. Guarantee Mutual is the sole stockholder of two stock life

insurance companies--(a) Guarantee American Life Company (GALC), a

Nebraska-domiciled life insurer incorporated in 1982; and (b) Guarantee

Protective Life Company (GPLC), a life insurer incorporated in

Minnesota in 1936 and acquired by Guarantee Mutual in 1992 and

redomesticated to Nebraska in 1993. GALC is principally engaged in

reinsuring a portion of certain Guarantee Mutual insurance obligations.

GPLC ceded its group life, health and credit insurance lines to

nonaffiliated insurance pursuant to reinsurance agreements that were

completed in late 1992 and early 1993. Currently, GPLC is not

underwriting any new business. In addition to these insurance

companies, Guarantee Mutual owns 100 percent of the stock of Guarantee

Financial Services, Inc., a non-insurance company incorporated in 1990

in Nebraska that has not yet conducted any operations.

3. Guarantee Mutual provides a wide variety of insurance products

to employee benefit plans covered by provisions of the Act and the

Code. Guarantee Mutual has actively marketed its products to employee

benefit plans and had as of September 30, 1994, approximately 32,100 in

force policies and contracts held on behalf of employee pension and

welfare plans. These include approximately 1,700 policies and contracts

funding pension and profit sharing plans and over 30,400 contracts

providing welfare benefit plan coverage such as group life, short- and

long-term disability, accidental death and dismemberment and group

health coverage.

4. On February 1, 1994, Guarantee Mutual's Board of Directors

authorized management to develop a plan of demutualization pursuant to

which Guarantee Mutual would be converted from a mutual life insurance

company to a stock life insurance company by operation of Nebraska law.

The Board of Directors formally adopted the Conversion Plan on December

15, 1994.

The ultimate result of the Conversion Plan will be a structure in

which all of Guarantee Mutual's stock will be held by a holding

company, GLCI, which has been organized under Delaware law for this

purpose. Eligible Policyholders of Guarantee Mutual will receive stock

of GLCI or, in certain cases, cash or policy credits and their

membership interests and rights in the surplus of Guarantee Mutual will

be extinguished. Any election by the Plan to receive stock, cash or

policy credits pursuant to the Conversion Plan will be made by one or

more Independent Fiduciaries of such Plan and neither Guarantee Mutual

nor any of its affiliates will exercise any discretion or render

investment advice with respect to such election.

Under the Conversion Plan, two steps will deem to occur

simultaneously on the effective date of the transaction. First,

Guarantee Mutual will be deemed to issue common stock to a transfer

agent for the respective accounts of Eligible Policyholders entitled to

receive stock under the Conversion Plan. Second, the transfer agent

will be deemed to transfer such shares, on behalf of the Eligible

Policyholders, to GLCI in exchange for an equal number of shares of

GLCI stock. GLCI will then issue such shares of GLCI stock registered

in the respective names of the Eligible Policyholders entitled to

receive stock.

5. The initial public offering (the IPO), in which shares of GLCI

stock will be sold for cash, is to occur on the effective date of the

demutualization which is anticipated to take place during the second

half of 1995. GLCI will contribute a portion of the proceeds from the

IPO to Guarantee Mutual in an amount at least equal to the amount

required to pay cash and fund the crediting of policy credits to

Eligible Policyholders who are to receive such consideration. As

promptly as possible after the effective date, GLCI will pay, or cause

Guarantee Mutual to pay, cash or policy credits to Eligible

Policyholders entitled under the Conversion Plan to receive such

consideration.

GLCI stock will be publicly-traded. In this regard, an application

will be made to list its stock on the National Association of

Securities Dealers Automated Quotations National Market System.

6. According to the applicant, the principal purpose of the

demutualization is to enhance Guarantee Mutual's strategic and

financial flexibility by creating a corporate structure that will make

it potentially possible to obtain additional capital from sources that

are unavailable to the company as a mutual insurer. In addition, the

applicant represents that the conversion of Guarantee Mutual from a

mutual life insurance company to a stock life insurance company will

enable Guarantee Mutual to use stock options or other equity-based

compensation arrangements in order to attract and retain talented

employees. Moreover, the applicant notes that Eligible Policyholders

will benefit by receiving marketable securities, cash or policy credits

in the demutualization. The applicant further represents that the

Conversion Plan will not, in any way, change premiums or reduce policy

benefits, values, guarantees or other policy obligations of Guarantee

Mutual to its policyholders and contractholders.

7. The applicant has outlined the procedural requirements under

Nebraska law for life insurance company demutualization. In this

regard, the Demutualization Act provides an approval process for

demutualization of a life insurance company under Nebraska law. A

conversion plan must be approved by the Director as well as by Eligible

Policyholders.

The Demutualization Act requires that a mutual insurer wishing to

convert to a stock insurer file an application with the Director. The

application must include: (a) A plan of conversion that contains a

description of the structure and form of the proposed consideration to

the policyholders and the projected range of the number of shares of

capital stock to be issued by the new stock insurer; (b) a

certification that the plan of conversion has been adopted by a vote of

not less than two-thirds of the members of the mutual insurer's board

of directors; (c) certification adopted by not less than two-thirds of

the members of the mutual insurer's board of directors that the plan is

fair and equitable to the policyholders; (d) certified copies of the

proposed amendments to the insurer's articles of incorporation and

bylaws to effectuate the conversion; and (e) a form of the proposed

notice to policyholders, describing the plan of conversion and

informing policyholders of procedures for the meeting of policyholders

and the policyholder vote on the plan.

The Director must make an initial determination to approve or

disapprove an application after conducting a public hearing, at which

any interested person may appear or otherwise be heard. The

[[Page 19098]] insurer must give such interested person reasonable

notice of the public hearing as the Director in his or her discretion

requires. After the public hearing, the Director will approve the

application only if he or she finds that (a) the plan of conversion is

fair and equitable to the policyholders; (b) the plan does not deprive

the policyholders of their property rights or due process of law; (c)

the new stock insurer would meet the minimum requirements to be issued

a certificate of authority by the Director to transact business in

Nebraska; and (d) that the continued operations of the new stock

insurer would not be hazardous to future policyholders and the public.

After the Director makes an initial determination to approve an

application, the insurer is required to hold a meeting of its

policyholders to vote on the plan. The Demutualization Act requires

that the insurer give at least 30 days notice prior to the time fixed

for the meeting, by first-class mail to the last-known address of each

policyholder, that the plan of conversion will be voted upon at a

meeting of the policyholders. The notice must also include a brief

description of the plan and a statement that the Director has initially

approved it. Policyholders may vote in person or by written proxy. Each

policyholder is entitled to only one vote regardless of the number of

policies owned by the policyholder. The plan of demutualization must be

approved by the affirmative vote of at least two-thirds of the

policyholders who vote on the plan.\16\

\16\Although Guarantee Mutual is uncertain about the number of

policyholders that will vote on the Conversion Plan, it points out

that it has approximately 155,000 policyholders who are eligible to

vote. Guarantee Mutual also represents that prior to the public

hearing, it will provide each Eligible Policyholder with a summary

of the Conversion Plan, a notice of the public hearing and a more

detailed policyholder information statement.

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After receiving certification from the insurer that the plan of

demutualization has been approved by the policyholders, the Director

will enter a final order approving the insurer's application. The

demutualization will take effect under Nebraska law after the insurer

certifies that the conditions set forth in the plan of demutualization

have been satisfied and the Director issues a certificate of authority

to the insurer.

Under Nebraska law, the consideration given to policyholders may be

stock, cash, a combination of stock and cash, or such other valuable

consideration as the Director may approve. Policyholders are not

required to be given preemptive rights unless the Director so orders.

The Demutualization Act permits the Director to engage the services

of experts to assist in determining whether a plan of conversion meets

the requirements of the Demutualization Act. In the case of Guarantee

Mutual, the Director has retained actuaries, Ernst & Young; legal

advisers, LeBoeuf, Lamb, Green & MacRae and Kennedy, Holland, Delacy &

Svoboda; and investment banking firm, Donaldson, Lufkin & Jenrette,

Inc., as consultants.

A final order by the Director to approve an application pursuant to

the Demutualization Act is subject to judicial review in the Nebraska

courts in accordance with the Nebraska Administrative Procedure Act.

7. Guarantee Mutual's Conversion Plan provides for Eligible

Policyholders, whose membership interests in the mutual company will be

extinguished in the demutualization, to receive common stock of GLCI,

or cash or policy credits. For this purpose, an Eligible Policyholder

generally is the owner of one or more policies in force on the date

that Guarantee Mutual's Board of Directors adopted the Conversion

Plan.\17\ In order to determine the amount of consideration to which

each Eligible Policyholder is entitled, each Eligible Policyholder will

be allocated (but not issued) a number of shares of common stock equal

to the sum of (a) a fixed component of consideration equal to 10 shares

of GLCI stock which will be subject to proportional adjustment; and (b)

where the Eligible Policyholder owns one or more participating

policies, an additional number of shares based on actuarial formulas

that take into account each participating policy's past and expected

future contributions to the surplus of Guarantee Mutual.

\17\Guarantee Mutual represents that under sections 44-6103, 44-

6106 and 44-6109 of Nebraska Insurance Law, the stock, cash, policy

credits or other compensation resulting from the demutualization

plan must be distributed to ``policyholders,'' as determined by the

records of the mutual life insurance company. Guarantee Mutual

further represents that an insurance or annuity policy that provides

benefits under an employee benefit plan, typically designates the

employer that sponsors the plan, or a trustee acting on behalf of

the plan, as the policyholder. In this regard, Guarantee Mutual

asserts that it is required under Nebraska Insurance Law to make

distributions resulting from the demutualization plan to the

employer or the plan sponsor when they are the designated

policyholder on the plan policy.

In general, it is the Department's view that, if an insurance

policy (including an annuity contract) was purchased with assets of

an employee benefit plan, and if there exist any participants

covered under the plan (as defined at 29 CFR 2510.3-3) at the time

when Guarantee Mutual incurs the obligation to distribute stock,

cash, policy credits or other compensation, then such consideration

would constitute an asset of such plan. Under these circumstances,

the appropriate plan fiduciaries must take all necessary steps to

safeguard the assets of the plan in order to avoid engaging in a

violation of the fiduciary responsibility provisions of the Act.

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8. Certain Eligible Policyholders will receive cash or policy

credits instead of stock. The amount of cash or policy credits will be

determined by reference to the price per share at which GLCI stock is

offered to the public in the IPO.\18\ Eligible Policyholders whose

mailing address is outside the United States, or to whom mail is

undeliverable at the address in Guarantee Mutual's records, will

receive cash in lieu of stock, in an amount equal to the value of the

stock such policyholders would otherwise have received based on the

price of GLCI stock in the IPO contemplated by the Plan of Conversion.

\18\For purposes of allocating the consideration, Guarantee

Mutual represents that all policyholders will be treated the same

within their class groupings.

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In addition, the Plan of Conversion provides that Eligible

Policyholders who are allocated a number of shares of GLCI stock which

is less than or equal to the maximum number of shares specified by the

Board of Directors of Guarantee Mutual, may receive cash instead of

stock. The maximum number of shares designated by the Board of

Directors may not be less than 10 shares nor may it exceed 40 shares.

Such maximum amount is, however, subject to proportional adjustment.

Certain other Eligible Policyholders, namely owners of individual

retirement annuities, tax sheltered annuities or certain other policies

issued directly to plan participants in qualified pension or profit

sharing plans will receive policy credits equal in value to the stock

allocated to such Eligible Policyholders.

Under Nebraska law, a plan of conversion must specify the

consideration to be given to policyholders and the Director must find

that the plan is fair and equitable to the policyholders and does not

deprive them of their property rights or due process of law. Moreover,

the Director must approve any consideration (such as policy credits)

other than cash or stock.

9. The Conversion Plan also provides for a commission-free program

that is to begin after the ninetieth day following the effective date

of the demutualization and before the 12 month anniversary of such

effective date at a time determined by the Board of Directors of GLCI

to be appropriate and in the best interests of GLCI and its

stockholders. The program, which will continue for 3 months, will be

available to any Eligible Policyholder who receives, under the Plan of

Conversion, fewer shares than the [[Page 19099]] maximum number of

shares entitled to receive cash as consideration.

In the program, such Eligible Policyholders will be entitled to

sell, at prevailing market prices, all the shares of GLCI stock

received by the Eligible Policyholder in the demutualization.

Specifically, Chemical Bank, which is unrelated to Guarantee Mutual, or

one of Chemical Bank's affiliates, will effect sales of stock under the

commission-free sales program.\19\ No brokerage commissions, mailing

charges, registration fees or other administrative or similar expenses

will be charged in connection with the receipt of stock or the

implementation of the commission-free sales program. The commission-

free program will also offer Eligible Policyholders the opportunity to

purchase enough shares to round-up their holdings to 100 shares, again

without paying any fees, charges or commissions (the Round Up Feature).

Participation in the Round Up Feature will be made available to all

Eligible Policyholders who on the commission-free program's record date

hold fewer than a number of shares (not more than 99) specified by the

Board of Directors of Guarantee Mutual.

\19\Guarantee Mutual notes that the performance of services by

Chemical Bank or its affiliates under the commission-free sales

program will not involve any fiduciary activity on behalf of

Eligible Plan Policyholders. Guarantee Mutual further represents

that it will not retain an affiliate to effect securities

transactions to take place under the commission-free sales program.

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10. In summary, it is represented that the proposed transaction

will satisfy the statutory criteria for an exemption under section

408(a) of the Act because:

(a) The Conversion Plan will be implemented in accordance with

procedural and substantive safeguards that are imposed under Nebraska

law and will be subject to the review and supervision by the Director.

(b) The Director will review the terms of the options that are

provided to Eligible Policyholders of Guarantee Mutual as part of such

Director's review of the Conversion Plan, and will approve the

Conversion Plan following a determination that such Conversion Plan is

fair and equitable to all Eligible Policyholders.

(c) Each Eligible Policyholder will have an opportunity to comment

orally or in writing on the Conversion Plan and decide whether to vote

to approve in writing such Demutualization Plan after full written

disclosure is given such policyholder by State Mutual, of the terms of

the Conversion Plan.

(d) Any election by an Eligible Policyholder which is a Plan to

receive stock, cash or policy credits, pursuant to the terms of the

Conversion Plan will be made by one or more Independent Fiduciaries of

such plan and neither State Mutual nor any of its affiliates will

exercise any discretion or provides investment advice with respect to

such election.

(e) After each Eligible Policyholder is allocated at least 10

shares of stock, additional consideration allocated to Eligible

Policyholders who own participating policies will be based on actuarial

formulas that take into account each participating policy's

contribution to the surplus of Guarantee Mutual which formulas have

been approved by the Director.

(f) All Plans that are Eligible Policyholders will participate in

the transactions on the same basis within their class groupings as

other Eligible Policyholders that are not Plans.

(g) No Eligible Policyholder will pay any brokerage commissions or

fees in connection with such Eligible Policyholder's receipt of stock

or in connection with the implementation of the commission-free sales

program.

(h) All of State Mutual's policyholder obligations will remain in

force and will not be affected by the Conversion Plan.

Notice to Interested Persons

Guarantee Mutual will provide notice of the proposed exemption to

all Eligible Plan Policyholders within 14 days of the publication of

the notice of pendency in the Federal Register. Such notice will be

provided 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 the proposed exemption. Comments with respect to the

notice of proposed exemption are due within 44 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.)

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 that each application

accurately describes all material terms of the transaction which is the

subject of the exemption.

Signed at Washington, DC, this 11th day of April, 1995.

Ivan Strasfeld,

Director of Exemption Determinations, Pension and Welfare Benefits

Administration, U.S. Department of Labor.

[FR Doc. 95-9254 Filed 4-13-95; 8:45 am]

BILLING CODE 4510-29-P