Federal Register / Vol. 76, No. 12 / Wednesday, January 19, 2011 / Notices 3161 

1 49 FR 9494 (Mar. 13, 1984), as corrected at 50 

FR 41430 (Oct. 10, 1985), and amended at 70 FR 

49305 (Aug. 23, 2005) and at 75 FR 38837 (Jul. 6, 

2010). 

DEPARTMENT OF LABOR 

Employee Benefits Security 

Administration 

Exemptions From Certain Prohibited 

Transaction Restrictions 

AGENCY: Employee Benefits Security 

Administration, Labor. 

ACTION: Grant of Individual Exemptions. 

SUMMARY: This document contains 

exemptions issued by the Department of 

Labor (the Department) from certain of 

the prohibited transaction restrictions of 

the Employee Retirement Income 

Security Act of 1974 (ERISA or the Act) 

and/or the Internal Revenue Code of 

1986 (the Code). This notice includes 

the following: 2011–01, Wasatch 

Advisers, Inc., D–11400; 2011–02, 

Morgan Stanley & Co. Incorporated, D– 

11489; and 2011–03, The West Coast 

Bancorp 401(k) Plan (the Plan), D– 

11611: A notice was published in the 

Federal Register of the pendency before 

the Department of a proposal to grant 

such exemption. The notice set forth a 

summary of facts and representations 

contained in the application for 

exemption and referred interested 

persons to the application for a 

complete statement of the facts and 

representations. The application has 

been available for public inspection at 

the Department in Washington, DC. The 

notice also invited interested persons to 

submit comments on the requested 

exemption to the Department. In 

addition the notice stated that any 

interested person might submit a 

written request that a public hearing be 

held (where appropriate). The applicant 

has represented that it has complied 

with the requirements of the notification 

to interested persons. No requests for a 

hearing were received by the 

Department. Public comments were 

received by the Department as described 

in the granted exemption. 

The notice of proposed exemption 

was issued and the exemption is being 

granted solely by the Department 

because, effective December 31, 1978, 

section 102 of Reorganization Plan No. 

4 of 1978, 5 U.S.C. App. 1 (1996), 

transferred the authority of the Secretary 

of the Treasury to issue exemptions of 

the type proposed to the Secretary of 

Labor. 

Statutory Findings 

In accordance with section 408(a) of 

the Act and/or section 4975(c)(2) of the 

Code and the procedures set forth in 29 

CFR part 2570, Subpart B (55 FR 32836, 

32847, August 10, 1990) and based upon 

the entire record, the Department makes 

the following findings: 

(a) The exemption is administratively 

feasible; 

(b) The exemption is in the interests 

of the plan and its participants and 

beneficiaries; and 

(c) The exemption is protective of the 

rights of the participants and 

beneficiaries of the plan. 

Wasatch Advisers, Inc.; Located in Salt 

Lake City, Utah 

[Prohibited Transaction Exemption 2011–01; 

Exemption Application Number D–11400] 

Exemption 

Section I. Exemption and Conditions 

Wasatch Advisors, Inc. (Wasatch) 

shall not be precluded from qualifying 

as a ‘‘qualified professional asset 

manager’’ (a QPAM) pursuant to 

Prohibited Transaction Exemption 84– 

14 (hereinafter, either PTE 84–14 or the 

QPAM Class Exemption) 1 for the period 

from April 19, 2006 through July 13, 

2007, solely because of its failure to 

satisfy the shareholders’ equity 

requirement of PTE 84–14, section 

V(a)(4) (the Shareholders’ Equity 

Requirement), provided that the 

following conditions were met: 

(a) Upon learning that it did not have 

adequate shareholders’ equity to satisfy 

the Shareholders’ Equity Requirement, 

Wasatch took all steps necessary to 

protect the interests of its ERISA Clients 

(as defined in section II(b)), including 

obtaining a letter of credit (the Letter of 

Credit); 

(b) The Letter of Credit was an 

irrevocable standby letter of credit for 

$1,000,000, structured in a manner that 

covered any ERISA Claim (as defined in 

section II(a)) occurring from April 19, 

2006 (the date Wasatch learned it did 

not satisfy the Shareholders’ Equity 

Requirement) through July 13, 2007 (the 

date on which Wasatch determined it 

satisfied the Shareholders’ Equity 

Requirement); 

(c) The Letter of Credit was issued by 

Zions First National Bank, which was 

independent of Wasatch and regulated 

by federal banking authorities; 

(d) The Letter of Credit was held by 

Zions First National Bank for the benefit 

of all ERISA Clients; 

(e) The Letter of Credit was payable 

on demand solely to an ERISA Client (or 

its agent) if the ERISA Client provided: 

(1) A certified copy of the final order 

for damages against Wasatch based on 

an ERISA Claim from a court of 

competent jurisdiction with all rights of 

appeal having expired or having been 

exhausted; or a true copy of a settlement 

agreement between the ERISA Client 

and Wasatch providing for damages to 

the ERISA Client with respect to an 

ERISA Claim; 

(2) In the case of a final court 

judgment, a certified true copy of a 

Sheriff’s or Marshall’s levy and 

execution on the judgment, returned 

unsatisfied, or such other 

documentation, certified by an officer of 

the court in which the judgment was 

entered, stating that the judgment 

remains unsatisfied following attempts 

to collect the judgment in accordance 

with local court rules; and 

(3) A certificate of an authorized 

representative of the ERISA Client 

stating the amount of the judgment or 

settlement which remains unsatisfied; 

(f) From 1996 through 2007, Joseph S. 

Call, a certified public accountant who 

is independent of Wasatch, performed a 

yearly audit on Wasatch, using generally 

acceptable accounting principles to 

quantify Wasatch’s shareholders’ equity; 

and 

(g) From 1996 through 2007, 

Wasatch’s reliance on Mr. Call’s 

determinations as to the dollar amount 

relevant to the Shareholders’ Equity 

Requirement was reasonable. 

Section II. Definitions 

(a) The term ‘‘ERISA Claim’’ means: a 

civil proceeding for monetary relief 

which is commenced by the filing or 

service of a civil complaint or similar 

pleading or a request for monetary relief 

which could have been the subject of 

such a complaint or pleading but for a 

settlement agreement, filed against 

Wasatch or with respect to which a 

settlement is reached prior to July 13, 

2007, by reason of Wasatch’s breach or 

violation of a duty described in sections 

404 or 406 of ERISA; 

(b) The term ‘‘ERISA Client’’ means 

any employee benefit plan covered by 

Title I of ERISA to which Wasatch 

provides or provided investment 

management services on or before July 

13, 2007; 

(c) A person will be ‘‘independent’’ of 

another person only if: 

(i) For purposes of this exemption, 

such person is not an affiliate of that 

other person; and 

(ii) The other person, or an affiliate 

thereof, is not a fiduciary that has 

investment management authority or 

renders investment advice with respect 

to the assets of such person; 

(d) An ‘‘affiliate’’ of a person means: 

(i) Any person directly or indirectly 

through one or more intermediaries, 

controlling, controlled by, or under 

common control with the person. For 

purposes of this paragraph, the term 

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3162 Federal Register / Vol. 76, No. 12 / Wednesday, January 19, 2011 / Notices 

2For purposes of this exemption, references to 

section 406 of ERISA should be read to refer also 

to the corresponding provisions of section 4975 of 

the Code. 

3The Department notes that this exemption does 

not address tax issues. The Department has been 

informed by the Internal Revenue Service and the 

Department of the Treasury that they are 

considering providing limited relief from the 

requirements of sections 72(t)(4), 401(a)(9), and 

4974 of the Code with respect to retirement plans 

that hold Auction Rate Securities. The Department 

has also been informed by the Internal Revenue 

Service that if Auction Rate Securities are 

purchased from a Plan in a transaction described in 

Sections I and II at a price that exceeds the fair 

market value of those securities, then the excess 

value would be treated as a contribution for 

purposes of applying applicable contribution and 

deduction limits under sections 219, 404, 408, and 

415 of the Code. 

4The Department notes that ERISA’s general 

standards of fiduciary conduct would also apply to 

the transactions described herein. In this regard, 

section 404 requires, among other things, that a 

fiduciary discharge his duties respecting a plan 

solely in the interest of the plan’s participants and 

beneficiaries and in a prudent manner. 

Accordingly, a plan fiduciary must act prudently 

with respect to, among other things: (1) The 

decision to exchange an Auction Rate Security for 

a Delivered Security; and (2) the negotiation of the 

terms of such exchange (or a cash sale or loan 

described above), including the pricing of such 

securities. The Department further emphasizes that 

it expects plan fiduciaries, prior to entering into any 

of the transactions, to fully understand the risks 

associated with these types of transactions, 

following disclosure by Morgan Stanley of all the 

relevant information. 

‘‘control’’ means the power to exercise a 

controlling influence over the 

management or policies of a person 

other than an individual; 

(ii) Any officer, director, employee or 

relative (as defined in section 3(15) of 

the Act) of any such other person or any 

partner in any such person; and 

(iii) Any corporation or partnership of 

which such person is an officer, director 

or employee or in which such person is 

a partner. 

For a more complete statement of the 

facts and representations supporting the 

Department’s decision to grant this 

exemption, refer to the Notice of 

Proposed Exemption published in the 

Federal Register on September 16, 2010 

at 75 FR 56569. 

FOR FURTHER INFORMATION CONTACT: 

Chris Motta of the Department, 

telephone (202) 693–8540. (This is not 

a toll-free number.) 

Morgan Stanley & Co. Incorporated 

Located in New York, New York 

[Prohibited Transaction Exemption 2011–02; 

Exemption Application No. D–11489] 

Exemption 

Section I. Transactions Involving Plans 

Described in Both Title I and Title II of 

ERISA 

The restrictions of section 

406(a)(1)(A) through (D) and section 

406(b) of ERISA, and the sanctions 

resulting from the application of 

sections 4975(a) and (b) of the Code, by 

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

shall not apply, effective February 1, 

2008, to the following transactions, if 

the conditions set forth in Section III 

have been met: 2

(a) The sale or exchange of an 

‘‘Auction Rate Security’’ (as defined in 

Section IV (b)) by a ‘‘Plan’’ (as defined 

in Section IV(h)) to the ‘‘Sponsor’’ (as 

defined in Section IV (g)) of such Plan; 

or 

(b) A lending of money or other 

extension of credit to a Plan in 

connection with the holding of an 

Auction Rate Security by the Plan, from 

(1) Morgan Stanley & Co. Incorporated 

or an ‘‘Affiliate’’ (Morgan Stanley); (2) an 

‘‘Introducing Broker’’ (as defined in 

Section IV (f)); or (3) a ‘‘Clearing Broker’’ 

(as defined in Section IV (d))—where 

the loan is (i) repaid in accordance with 

its terms, and (ii) guaranteed by the Plan 

Sponsor. 

II. Transactions Involving Plans 

Described in Title II of ERISA Only 

The sanctions resulting from the 

application of section 4975(a) and (b) of 

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

of the Code, shall not apply, effective 

February 1, 2008, to the following 

transactions, if the conditions set forth 

in Section III have been met: 

(a) The sale or exchange of an Auction 

Rate Security by a ‘‘Title II-Only Plan’’ 

(as defined in Section IV(i)) to the 

‘‘Beneficial Owner’’ (as defined in 

Section IV(c)) of such Plan; or 

(b) A lending of money or other 

extension of credit to a Title II-Only 

Plan in connection with the holding of 

an Auction Rate Security by the Title IIOnly Plan, from (1) Morgan Stanley; (2) 

an Introducing Broker; or (3) a Clearing 

Broker—where the loan is (i) repaid in 

accordance with its terms, and (ii) 

guaranteed by the Beneficial Owner. 

III. Conditions 

(a) Morgan Stanley acted as a broker 

or dealer, non-bank custodian, or 

fiduciary in connection with the 

acquisition or holding of the Auction 

Rate Security that is the subject of the 

transaction; 

(b) For transactions involving a Plan 

(including a Title II-Only Plan) not 

sponsored by Morgan Stanley for its 

own employees, the decision to enter 

into the transaction is made by a Plan 

fiduciary who is ‘‘Independent’’ (as 

defined in Section IV(e)) of Morgan 

Stanley. Notwithstanding the foregoing, 

an employee of Morgan Stanley who is 

the Beneficial Owner of a Title II-Only 

Plan may direct such Plan to engage in 

a transaction described in Section II, if 

all of the other conditions of this 

Section III have been met; 

(c) The last auction for the Auction 

Rate Security was unsuccessful; 

(d) The Plan does not waive any rights 

or claims in connection with the loan or 

sale as a condition of engaging in the 

above described transaction; 

(e) The Plan does not pay any fees or 

commissions in connection with the 

transaction; 

(f) The transaction is not part of an 

arrangement, agreement, or 

understanding designed to benefit a 

party in interest or disqualified person; 

(g) With respect to any sale described 

in Section I(a) or Section II(a): 

(1) The sale is for no consideration 

other than cash payment against prompt 

delivery of the Auction Rate Security; 

and 

(2) For purposes of the sale, the 

Auction Rate Security is valued at par, 

plus any accrued but unpaid interest; 3

(h) With respect to an in-kind 

exchange described in Section (I)(a) or 

Section II(a), the exchange involves the 

transfer by a Plan of an Auction Rate 

Security in return for a ‘‘Delivered 

Security,’’ as such term is defined in 

Section IV(j), where: 

(1) The exchange is unconditional; 

(2) For purposes of the exchange, the 

Auction Rate Security is valued at par, 

plus any accrued but unpaid interest; 

(3) The Delivered Security is valued at 

fair market value, as determined at the 

time of the in-kind exchange by a third 

party pricing service or other objective 

source; 

(4) The Delivered Security is 

appropriate for the Plan and is a 

security that the Plan is otherwise 

permitted to hold under applicable 

law; 4

(5) The total value of the Auction Rate 

Security (i.e., par, plus any accrued but 

unpaid interest) is equal to the fair 

market value of the Delivered Security; 

(i) With respect to a loan described in 

Section I(b) or II(b): 

(1) The loan is documented in a 

written agreement containing all of the 

material terms of the loan, including the 

consequences of default; 

(2) The Plan does not pay an interest 

rate that exceeds one of the following 

three rates as of the commencement of 

the loan: 

(A) The coupon rate for the Auction 

Rate Security; 

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Federal Register / Vol. 76, No. 12 / Wednesday, January 19, 2011 / Notices 3163 

(B) The Federal Funds Rate; or 

(C) The Prime Rate; 

(3) The loan is unsecured; and 

(4) The amount of the loan is not more 

than the total par value of the Auction 

Rate Securities held by the Plan. 

(j) Morgan Stanley maintains, or 

causes to be maintained, for a period of 

at least six (6) years from the date of a 

covered transaction, such records as are 

necessary to enable the persons 

described in paragraph (k), below, to 

determine whether the conditions of 

this exemption, if granted, have been 

met, except that— 

(1) No party in interest with respect 

to a Plan that engages in a covered 

transaction, other than Morgan Stanley 

shall be subject to a civil penalty under 

section 502(i) of ERISA or the taxes 

imposed by section 4975(a) and (b) of 

the Code, if such records are not 

maintained, or are not available for 

examination, as required, below, by 

paragraph (k); and 

(2) A separate prohibited transaction 

shall not be considered to have occurred 

solely because, due to circumstances 

beyond the control of Morgan Stanley, 

such records are lost or destroyed prior 

to the end of the six-year period; and 

(k)(1) Except as provided in 

subparagraph (2), below, and 

notwithstanding any provisions of 

subsections (a)(2) and (b) of section 504 

of ERISA, the records referred to in 

paragraph (j), above, are unconditionally 

available at their customary location for 

examination during normal business 

hours by— 

(A) Any duly authorized employee or 

representative of the Department, the 

Internal Revenue Service, or the U.S. 

Securities and Exchange Commission; 

(B) The fiduciary of any Plan, 

including any IRA owner, that engages 

in a covered transaction, or any duly 

authorized employee or representative 

of such fiduciary; or 

(C) The employer of participants and 

beneficiaries and the employee 

organization whose members are 

covered by the Plan that engages in a 

covered transaction, or any authorized 

employee or representative of these 

entities; 

(2) None of the persons described 

above in paragraph (k)(1)(B) or (C) shall 

be authorized to examine trade secrets 

of Morgan Stanley, or commercial or 

financial information which is 

privileged or confidential; and 

(3) Should Morgan Stanley refuse to 

disclose information on the basis that 

such information is exempt from 

disclosure, Morgan Stanley shall, by the 

close of the thirtieth (30th) day 

following the request, provide a written 

notice advising that person of the 

reasons for the refusal and that the 

Department may request such 

information. 

IV. Definitions 

(a) The term ‘‘Affiliate’’ means any 

person, directly or indirectly, through 

one or more intermediaries, controlling, 

controlled by, or under common control 

with such other person; 

(b) The term ‘‘Auction Rate Security’’ 

or ‘‘ARS’’ means a security: 

(1) That is either a debt instrument 

(generally with a long-term nominal 

maturity) or preferred stock; and 

(2) With an interest rate or dividend 

that is reset at specific intervals through 

a Dutch Auction process; 

(c) The term ‘‘Beneficial Owner’’ 

means the individual for whose benefit 

the Title II-Only Plan is established and 

includes a relative or family trust with 

respect to such individual; 

(d) The term ‘‘Clearing Broker’’ means 

a member of a securities exchange who 

acts as a liaison between an investor and 

a clearing corporation, helps to ensure 

that a trade is settled appropriately, 

ensures that the transaction is 

successfully completed, and is 

responsible for maintaining the paper 

work associated with the clearing and 

execution of a transaction; 

(e) The term ‘‘Independent’’ means a 

person who is (1) not Morgan Stanley or 

an Affiliate, and (2) not a ‘‘relative’’ (as 

defined in ERISA section 3(15)) of the 

party engaging in the transaction; 

(f) The term ‘‘Introducing Broker’’ 

means a registered broker who is able to 

perform all the functions of a broker, 

except for the ability to accept money, 

securities, or property from a customer; 

(g) The term ‘‘Sponsor’’ means a plan 

sponsor as described in section 3(16)(B) 

of ERISA and any Affiliates; 

(h) The term ‘‘Plan’’ means any plan 

described in section 3(3) of ERISA and/ 

or section 4975(e)(1) of the Code; 

(i) The term ‘‘Title II-Only Plan’’ 

means any plan described in section 

4975(e)(1) of the Code that is not an 

employee benefit plan covered by Title 

I of ERISA; 

(j) The term ‘‘Delivered Security’’ 

means a security that is (1) Listed on a 

national securities exchange (excluding 

OTC Bulletin Board-eligible securities 

and Pink Sheets-quoted securities); or 

(2) A U.S. Treasury obligation; or (3) A 

fixed income security that has a rating 

at the time of the exchange that is in one 

of the two highest generic rating 

categories from an Independent 

nationally recognized statistical rating 

organization (e.g., a highly rated 

municipal bond or a highly rated 

corporate bond); or (4) A certificate of 

deposit insured by the Federal Deposit 

Insurance Corporation. Notwithstanding 

the above, the term ‘‘Delivered Security’’ 

shall not include any Auction Rate 

Security, or any related Auction Rate 

Security, including derivatives or 

securities materially comprised of 

Auction Rate Securities or any illiquid 

securities. 

For a more complete statement of the 

facts and representations supporting the 

Department’s decision to grant this 

exemption, refer to the notice of 

proposed exemption published on July 

2, 1010 at 75 FR 38557. In addition, a 

notice of technical correction was 

published on July 12, 2010 at 75 FR 

39707. 

Written Comments 

The Department received one written 

comment with respect to the notice of 

proposed exemption (Proposal). The 

comment was submitted by the 

applicant, who requests certain 

modifications to the exemption 

language. 

Specifically, the applicant requests 

deletion of the recordkeeping and 

record access conditions in Section III(j) 

and (k) of the Proposal. The applicant 

argues that the Proposal covers 

transactions that are identical to the 

those covered in certain individual 

prohibited transaction exemptions that 

the Department has previously granted 

and that these exemptions do not 

contain any recordkeeping and record 

access conditions. 

In the event, however, that the 

Department decides to impose the 

aforementioned conditions, the 

applicant requests the following 

modifications. (1) Because the covered 

transactions are not pursuant to a 

settlement with the U.S. Securities and 

Exchange Commission (SEC), the 

applicant requests deletion of the 

reference to the SEC in Section 

III(k)(1)(A); (2) The applicant objects to 

permitting access to its records not only 

by plan fiduciaries but all clients as 

‘‘unreasonable, unwarranted and 

burdensome,’’ and requests that Section 

III(k)(1)(B) be modified to limit record 

access to fiduciaries of plans that engage 

in a covered transaction and then only 

to their own plan’s records; (3) The 

applicant objects to permitting access to 

its records not only by plan sponsors 

but to all plan participants and their 

representatives as an ‘‘unwarranted 

burden’’ and one that ‘‘makes absolutely 

no sense in the context of an IRA,’’ and 

requests deletion of the reference to 

participants and their representatives 

from Section III(k)(1)(C); (4) The 

applicant objects to the 30-day deadline 

for providing a written explanation for 

any refusal to disclose information that 

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3164 Federal Register / Vol. 76, No. 12 / Wednesday, January 19, 2011 / Notices 

it believes is exempt from disclosure on 

grounds that ‘‘it is practically impossible 

to meet this deadline, because the 

request would likely be received in a 

branch office and would have to be 

forwarded to headquarters for analysis 

and determination whether in fact the 

information sought should be 

disclosed.’’ The applicant therefore 

requests that Section III(k)(3) be 

modified to provide for a 60-day 

deadline; and 5) Finally, the applicant 

objects to the requirement in Section 

III(k)(3) that the applicant’s written 

explanation for any refusal to disclose 

information to a requesting person 

include a notice advising that the 

Department may request such 

information on grounds that ‘‘such 

advice may mislead the person into 

thinking that the Department could 

request the information on behalf of the 

person.’’ The applicant therefore 

requests deletion of this requirement 

from Section III(k)(3). 

In response to the applicant’s written 

comment, the Department notes that an 

individual prohibited transaction 

exemption is granted on a particular set 

of facts and circumstances to a 

particular applicant and may not be 

relied upon by any other entity. Thus, 

the Department is not persuaded by the 

applicant’s argument that, because the 

recordkeeping and record access 

conditions were not contained in certain 

2009 individual exemptions, therefore 

such conditions should not be imposed 

on the applicant. Moreover, the 

Department notes that the recordkeeping and record access conditions 

are, in general, contained in a number 

of other similar recently issued 

exemptions during 2010 involving ARS. 

Regarding the applicant’s requested 

modification to proposed Section 

III(k)(1)(B), however, the Department 

agrees that access to the records should 

be limited to the fiduciary of the Plan 

involved in the covered transaction, 

and, accordingly, has modified this 

condition. 

Regarding the applicant’s requested 

modification to proposed Section 

III(k)(1)(C), the Department disagrees 

with the applicant’s objection to this 

condition because it refers to record 

access by ‘‘any employer of participants 

and beneficiaries’’ including any 

authorized employee—not directly by 

all participants and their 

representatives. Although the 

Department has not made this requested 

change, it has revised the language 

contained in Section III(k)(1)(C) so it is 

parallel to the language contained in 

Section III(k)(1)(B). The Department 

further notes that Section III(k)(1)(C) has 

no relevance in the context of a Title II 

only IRA since there is no employer to 

request access to records. 

Accordingly, except as indicated, the 

Department has not adopted the 

applicant’s alternative requests either to 

delete the recordkeeping and record 

access conditions in Section III(j) and 

(k), or to modify the language of those 

conditions in the final exemption and 

has granted the exemption as proposed. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Karin Weng of the Department, 

telephone (202) 693–8557. (This is not 

a toll-free number.) 

The West Coast Bancorp 401(k) Plan 

(the Plan) Located in Lake Oswego, 

Oregon 

[Prohibited Transaction Exemption 2011–03; 

Exemption Application No. D–11611] 

Exemption 

The restrictions of sections 

406(a)(1)(A) and (E), 406(a)(2), 406(b)(1), 

406(b)(2), and 407(a) and the sanctions 

resulting from the application of section 

4975(c)(1)(A) and (E) of the Code, shall 

not apply, effective January 29, 2010, to: 

(1) The acquisition of stock rights (the 

Rights) by the Plan issued by the West 

Coast Bancorp, Inc. (Bancorp), the Plan 

sponsor and a party in interest with 

respect to the Plan under the terms and 

conditions of a Rights offering (the 

Offering); and (2) the holding of the 

Rights by the Plan until their expiration, 

during the subscription period of the 

Offering, provided that the following 

conditions were met: 

(a) The receipt of the Rights by the 

Plan occurred in connection with the 

Offering and was made available by 

Bancorp on the same terms to all 

shareholders (the Shareholders) of the 

common stock of Bancorp (Common 

Stock); 

(b) The acquisition of the Rights by 

the Plan resulted from an independent 

act of Bancorp as a corporate entity, and 

all holders of the Rights, including the 

Plan, were treated in the same manner 

with respect to such acquisition; 

(c) All Shareholders of Common 

Stock, including the Plan, received the 

same proportionate number of Rights 

based on the number of shares of 

Common Stock held by such 

Shareholders; 

(d) All decisions regarding the Rights 

held by the Plan were made by the 

individual Plan participants whose 

accounts in the Plan received the Rights, 

in accordance with the provisions under 

the Plan for individually-directed 

investment of such account; and 

(e) The Plan did not pay any fees or 

commissions in connection with the 

acquisition and or holding of the Rights. 

DATES: Effective Date: This exemption 

is effective as of January 29, 2010, the 

commencement date of the Offering. 

For a more complete statement of the 

facts and representations supporting the 

Department’s decision to grant this 

exemption, refer to the notice of 

proposed exemption published on 

October 6, 2010 at 75 FR 61953. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Anh-Viet Ly of the Department at (202) 

693–8648. (This is not a toll-free 

number.) 

General Information 

The attention of interested persons is 

directed to the following: 

(1) The fact that a transaction is the 

subject of an exemption under section 

408(a) of the Act and/or section 

4975(c)(2) of the Code does not relieve 

a fiduciary or other party in interest or 

disqualified person from certain other 

provisions to which the 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) This exemption is supplemental to 

and not in derogation of, any other 

provisions of the Act and/or the Code, 

including statutory or administrative 

exemptions and transactional rules. 

Furthermore, the fact that a transaction 

is subject to an administrative or 

statutory exemption is not dispositive of 

whether the transaction is in fact a 

prohibited transaction; and 

(3) The availability of this exemption 

is subject to the express condition that 

the material facts and representations 

contained in the application accurately 

describes all material terms of the 

transaction which is the subject of the 

exemption. 

Signed at Washington, DC, this 13th day of 

January 2011. 

Ivan Strasfeld, 

Director of Exemption Determinations, 

Employee Benefits Security Administration, 

U.S. Department of Labor. 

[FR Doc. 2011–975 Filed 1–18–11; 8:45 am] 

BILLING CODE 4510–29–P 

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