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Secretary of Labor Thomas E. Perez
EBSA (Formerly PWBA) Federal Register Notice Notice of Proposed Individual Exemption To Amend Prohibited Transaction Exemption (PTE) 99-45, Involving Donaldson, Lufkin & Jenrette Securities Corporation (DLJ), Located in New York, NY [09/07/2001]

EBSA (Formerly PWBA) Federal Register Notice

Notice of Proposed Individual Exemption To Amend Prohibited Transaction Exemption (PTE) 99-45, Involving Donaldson, Lufkin & Jenrette Securities Corporation (DLJ), Located in New York, NY [09/07/2001]

[PDF Version]

Volume 66, Number 174, Page 46826-46830


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DEPARTMENT OF LABOR

Pension and Welfare Benefits Administration

[Application No. D-10946]

 
Notice of Proposed Individual Exemption To Amend Prohibited 
Transaction Exemption (PTE) 99-45, Involving Donaldson, Lufkin & 
Jenrette Securities Corporation (DLJ), Located in New York, NY

AGENCY: Pension and Welfare Benefits Administration, U.S. Department of 
Labor.

ACTION: Notice of proposed individual exemption to modify PTE 99-45.

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SUMMARY: This document contains a notice of pendency before the 
Department of Labor (the Department) of a proposed individual exemption 
which, if granted, would amend PTE 99-45 (64 FR 61138, November 9, 
1999), an exemption granted to DLJ. PTE 99-45, which is effective as of 
September 24, 1999, relates to the (1) purchase or sale of a security 
between certain affiliates of DLJ which are foreign broker-dealers (the 
Foreign Affiliates) and employee benefit plans (the Plans) with respect 
to which the Foreign Affiliates are parties in interest, including 
options written by a Plan, DLJ or the Foreign Affiliates; (2) the 
extension of credit to the Plans by the Foreign Affiliates to permit 
the settlement of securities transactions that are effected on either 
an agency or a principal basis, or in connection with the writing of 
options contracts; and (3) the lending of securities to the Foreign 
Affiliates by the Plans.
    If granted, the proposed exemption would incorporate by reference 
many of the facts, representations and conditions contained in PTE 99-
45. However, the proposed exemption would expand the scope of PTE 99-45 
to apply not only to current and future Foreign Affiliates of DLJ that 
are located in the United Kingdom and Australia, and which are subject 
to the securities regulatory entities within these jurisdictions, but 
to current and future Foreign Affiliates of Credit Suisse First Boston 
Corporation (CSFB), also located in the United Kingdom and Australia. 
CSFB, a Massachusetts-based broker-dealer registered with the U.S. 
Securities and Exchange Commission (the SEC), is an indirect, wholly 
owned subsidiary of Credit Suisse Group (CSG). As of December 31, 1999, 
CSFB had approximately $97.8 billion in assets on a consolidated basis. 
CSG is the current parent of DLJ.

[[Page 46827]]

    Thus, the proposed exemption will affect participants, 
beneficiaries and fiduciaries of Plans which are engaged in purchases 
or sales of securities or in securities lending arrangements with 
Foreign Affiliates of DLJ or CSFB that are located in the United 
Kingdom and Australia.

EFFECTIVE DATE: If granted, the proposed amendment will be effective as 
of November 3, 2000.

DATES: Written comments and requests for a public hearing should be 
received by the Department on or before October 22, 2001.

ADDRESSES: All written comments and requests for a public hearing 
(preferably, three copies) should be sent to the Office of Exemption 
Determinations, Pension and Welfare Benefits Administration, Room N-
5649, U.S. Department of Labor, 200 Constitution Avenue, NW., 
Washington, DC 20210, Attention: Application No. D-10946. The 
application pertaining to the proposed exemption and the comments 
received will be available for public inspection in the Public 
Disclosure Room of the Pension and Welfare Benefits Administration, 
U.S. Department of Labor, Room N-1513, 200 Constitution Avenue, NW., 
Washington, DC 20210.

FOR FURTHER INFORMATION CONTACT: Ms. Jan D. Broady, Office of Exemption 
Determinations, Pension and Welfare Benefits Administration, U.S. 
Department of Labor, telephone (202) 219-8881. (This is not a toll-free 
number.)

SUPPLEMENTARY INFORMATION: Notice is hereby given of the pendency 
before the Department of a proposed exemption that will amend PTE 99-
45. PTE 99-45 provides an exemption from certain prohibited transaction 
restrictions of section 406 of the Employee Retirement Income Security 
Act of 1974 (the Act) and from the sanctions resulting from the 
application of section 4975 of the Internal Revenue Code of 1986 (the 
Code), as amended, by reason of section 4975(c)(1) of the Code.
    The proposed exemption has been requested in an application filed 
on behalf of DLJ and CSFB (together, the Applicants) pursuant to 
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, 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. 
Accordingly, the proposed exemption is being issued solely by the 
Department.
    PTE 99-45 states that--

     The restrictions of section 406(a)(1)(A) through (D) 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, effective September 24, 1999, to any 
purchase or sale of a security between certain affiliates of DLJ 
which are Foreign Affiliates and Plans with respect to which the 
Foreign Affiliates are parties in interest, including options 
written by a Plan, DLJ or the Foreign Affiliates;
     The restrictions of sections 406(a)(1)(A) through (D) 
and 406(b)(2) of the Act and from the sanctions resulting from the 
application of section 4975 of the Code, by reason of section of 
section 4975(c)(1)(A) through (D) of the Code, shall not apply, 
effective September 24, 1999, to any extension of credit to the 
Plans by the Foreign Affiliates to permit the settlement of 
securities transactions, regardless of whether the transactions are 
effected on an agency or a principal basis, or in connection with 
the writing of options contracts; and
     The restrictions of section 406(a)(1)(A) through (D) of 
the Act and from the sanctions resulting from the application of 
section 4975 of the Code, by reason of section of section 
4975(c)(1)(A) through (D) of the Code, shall not apply, effective 
September 24, 1999, to the lending of securities to the Foreign 
Affiliates by the Plans.

    The transactions described in PTE 99-45 are subject to a number of 
conditions.
    Subsequent to the granting of PTE 99-45, the Applicants informed 
the Department of certain modifications to the Summary of Facts and 
Representations set forth in Prohibited Transaction Exemption PTE 99-
45. Specifically, on August 30, 2000, Credit Suisse Group (CSG), a 
global financial services company providing insurance, banking and 
investment banking products in Switzerland and abroad, agreed to 
purchase Donaldson Lufkin & Jenrette, Inc. (DLJ, Inc.), the former 
parent of DLJ. Pursuant to a tender offer, Diamond Acquisition 
Corporation (DAC), a CSG subsidiary and a shell corporation formed for 
the purpose of the merger described herein, purchased all of the 
outstanding voting common stock of DLJ, Inc., of the series designated 
as ``DLJ Common Stock,'' for a purchase price of $90 per share or an 
aggregate purchase price that was in excess of $10 billion. After these 
shares of common stock were tendered, the shares of DLJ Common Stock 
held by AXA, S.A. (AXA), DLJ, Inc.''s ultimate parent at that time, and 
certain affiliates of AXA, were also purchased by DAC.
    On November 3, 2000 (i.e., the closing date), DLJ, Inc. became an 
indirect, wholly owned subsidiary of CSG and a direct subsidiary of 
Credit Suisse First Boston, Inc. (CSFBI). Diamond Restructuring 
Corporation, a wholly owned subsidiary of DAC, merged with and into 
DLJ, Inc. DLJ, Inc. was the surviving entity in the merger. CSFBI then 
transferred all of the outstanding shares of its wholly owned 
subsidiary, CSFB, a U.S. registered broker-dealer, to DLJ, Inc. and 
CSFB became a wholly owned subsidiary of DLJ, Inc. DLJ continued to 
exist as a separate wholly owned subsidiary of DLJ, Inc. under the same 
name. DLJ, Inc. was the surviving entity in the transactions described 
above and, on November 6, 2000, DLJ, Inc. was renamed ``Credit Suisse 
First Boston (USA), Inc.'' (CSFB (USA)). At present, DLJ continues to 
survive as a wholly owned subsidiary of CSFB (USA).
    The Applicants note that PTE 99-45 defines the term ``Foreign 
Affiliates'' to include ``current and future affiliate[s] of DLJ'' that 
are subject to similar regulations in the United Kingdom and in 
Australia. Therefore, the Applicants believe that foreign broker-dealer 
affiliates of CSFB, by virtue of the acquisition transaction, are 
affiliates of DLJ and, thus, are covered by PTE 99-45, to the extent 
the Foreign Affiliates are regulated by either the Securities and 
Futures Authority in the United Kingdom or the Australian Securities & 
Investments Commission in Australia. In addition, the Applicants note 
that DLJ, as an independent entity, will survive for some time, but may 
eventually be merged into and become part of CSFB in the future.
    If granted, the amendment will be effective as of November 3, 2000. 
For purposes of the amendment, the Department has revised the operative 
language of the proposal and the definitions to include references to 
both DLJ and CSFB and their affiliates, where applicable. The 
Department notes that these revisions will extend the availability of 
PTE 99-45 to current and future Foreign Affiliates of DLJ that are 
based in the United Kingdom and Australia as well as to current and 
future Foreign Affiliates of CSFB, also based in these countries.

Notice to Interested Persons

    The Applicants represent that, because those Plans that will be 
potentially interested in the transactions cannot be identified at this 
time, the only practical means of notifying Plan fiduciaries is by the 
publication of the notice of proposed exemption in the Federal 
Register. Therefore, comments and requests for a hearing must be 
received by the Department not later than 30 days from the date of the

[[Page 46828]]

publication of the proposed exemption in the Federal Register.

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 section 4975(c)(2) of the Code does 
not relieve a fiduciary or other party in interest or disqualified 
person from certain other provisions of the Act and 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 require, among other things, a fiduciary to 
discharge his or her 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 requirements of section 401(a) of the Code that the plan 
operate for the exclusive benefit of the employees of the employer 
maintaining the plan and their beneficiaries;
    (2) The proposed exemption, if granted, will not extend to 
transactions prohibited under section 406(b)(3) of the Act and section 
4975(c)(1)(F) of the Code;
    (3) Before an exemption can be granted under section 408(a) of the 
Act and section 4975(c)(2) of the Code, the Department must find that 
the exemption is administratively feasible, in the interest of the plan 
and of its participants and beneficiaries and protective of the rights 
of participants and beneficiaries of the plan;
    (4) This proposed exemption, if granted, will be supplemental to, 
and not in derogation of, any other provisions of the Act and the Code, 
including statutory or administrative exemptions. 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
    (5) This proposed exemption, if granted, is subject to the express 
condition that the facts and representations set forth in the notice of 
proposed exemption relating to PTE 99-45 and this notice, accurately 
describe, where relevant, the material terms of the transactions to be 
consummated pursuant to this exemption.

Written Comments and Hearing Requests

    All interested persons are invited to submit written comments or 
requests for a hearing on the pending exemption to the address above, 
within the time frame set forth above, after the publication of this 
proposed exemption in the Federal Register. All comments will be made a 
part of the record. Comments received will be available for public 
inspection with the referenced applications at the address set forth 
above.

Proposed Exemption

    Based on the facts and representations set forth in the 
application, the Department is considering granting the requested 
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, August 10, 1990).

Section I. Covered Transactions

    A. If the exemption is granted, the restrictions of section 
406(a)(1)(A) through (D) 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, effective 
November 3, 2000, to any purchase or sale of a security between certain 
affiliates of Donaldson, Lufkin & Jenrette Securities Corporation (DLJ) 
or Credit Suisse First Boston Corporation (CSFB) which are foreign 
broker-dealers (the Foreign Affiliates, as defined below) and employee 
benefit plans (the Plans) with respect to which the Foreign Affiliates 
are parties in interest, including options written by a Plan, DLJ, 
CSFB, or a Foreign Affiliate, provided that the following conditions 
and the General Conditions of Section II, are satisfied:
    (1) The Foreign Affiliate customarily purchases and sells 
securities for its own account in the ordinary course of its business 
as a broker-dealer;
    (2) The terms of any transaction are at least as favorable to the 
Plan as those which the Plan could obtain in a comparable arm's length 
transaction with an unrelated party; and
    (3) Neither the Foreign Affiliate nor an affiliate thereof 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, and the Foreign Affiliate is a party in interest or 
disqualified person with respect to the Plan assets involved in the 
transaction solely by reason of section 3(14)(B) of the Act or section 
4975(e)(2)(B) of the Code, or by reason of a relationship to a person 
described in such sections. For purposes of this paragraph, the Foreign 
Affiliate shall not be deemed to be a fiduciary with respect to Plan 
assets solely by reason of providing securities custodial services for 
a Plan.
    B. The restrictions of sections 406(a)(1)(A) through (D) 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 
(D) of the Code, shall not apply, effective November 3, 2000, to any 
extension of credit to the Plans by the Foreign Affiliates to permit 
the settlement of securities transactions, regardless of whether they 
are effected on an agency or a principal basis, or in connection with 
the writing of options contracts, provided that the following 
conditions and the General Conditions of Section II are satisfied:
    (1) The Foreign Affiliate is not a fiduciary with respect to any 
Plan assets involved in the transaction, unless no interest or other 
consideration is received by the Foreign Affiliate or an affiliate 
thereof, in connection with such extension of credit; and
    (2) Any extension of credit would be lawful under the Securities 
Exchange Act of 1934 (the 1934 Act) and any rules or regulations 
thereunder if such Act, rules or regulations were applicable.
    C. The restrictions of section 406(a)(1)(A) through (D) 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, effective November 3, 2000, to the lending of securities to 
the Foreign Affiliates by the Plans, provided that the following 
conditions and the General Conditions of Section II are satisfied:
    (1) Neither the Foreign Affiliate nor an affiliate thereof has 
discretionary authority or control with respect to the investment of 
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) The Plan receives from the Foreign Affiliate (by physical 
delivery or by book entry in a securities depository, wire transfer, or 
similar means) by the close of business on the day on which the loaned 
securities are delivered to the Foreign Affiliate, collateral 
consisting of cash, securities issued or guaranteed by the U.S. 
Government or its agencies or instrumentalities, or irrevocable U.S. 
bank letters of credit issued by persons other than the Foreign 
Affiliate or an affiliate of the Foreign Affiliate, or any combination 
thereof. All collateral shall be in U.S. dollars, or dollar-denominated 
securities or bank letters of credit, and shall be held in the United 
States;

[[Page 46829]]

    (3) The collateral has, as of the close of business on the 
preceding business day, a market value equal to at least 100 percent of 
the then market value of the loaned securities (or, in the case of 
letters of credit, a stated amount equal to same);
    (4) The loan is made pursuant to a written loan agreement (the Loan 
Agreement), which may be in the form of a master agreement covering a 
series of securities lending transactions, and which contains terms at 
least as favorable to the Plan as those the Plan could obtain in an 
arm's length transaction with an unrelated party;
    (5) In return for lending securities, the Plan either (a) receives 
a reasonable fee, which is related to the value of the borrowed 
securities and the duration of the loan, or (b) has the opportunity to 
derive compensation through the investment of cash collateral. In the 
latter case, the Plan may pay a loan rebate or similar fee to the 
Foreign Affiliate, if such fee is not greater than the Plan would pay 
an unrelated party in a comparable arm's length transaction with an 
unrelated party;
    (6) The Plan receives at least the equivalent of all distributions 
on the borrowed securities made 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 that the Plan would have received (net of tax 
withholdings)\1\ had it remained the record owner of such securities.
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    \1\ The Department notes the Applicants' representation that 
dividends and other distributions on foreign securities payable to a 
lending Plan may be subject to foreign tax withholdings and that the 
Foreign Affiliate will always put the Plan back in at least as good 
a position as it would have been in had it not lent the securities.
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    (7) If the market value of the collateral as of the close of 
trading on a business day falls below 100 percent of the market value 
of the borrowed securities as of the close of trading on that day, the 
Foreign Affiliate delivers additional collateral, by the close of the 
Plan's business on the following business day, to bring the level of 
the collateral back to at least 100 percent. However, if the market 
value of the collateral exceeds 100 percent of the market value of the 
borrowed securities, the Foreign Affiliate may require the Plan to 
return part of the collateral to reduce the level of the collateral to 
100 percent;
    (8) Before entering into a Loan Agreement, the Foreign Affiliate 
furnishes to the independent Plan fiduciary (a) the most recent 
available audited statement of the Foreign Affiliate's financial 
condition, (b) the most recent available unaudited statement of its 
financial condition (if more recent than the audited statement), and 
(c) a representation that, at the time the loan is negotiated, there 
has been there has been no material adverse change in its financial 
condition that has not been disclosed since the date of the most recent 
financial statement furnished to the independent Plan fiduciary. Such 
representation may be made by the Foreign Affiliate's agreeing that 
each loan of securities shall constitute a representation that there 
has been no such material adverse change;
    (9) The Loan Agreement and/or any securities loan outstanding may 
be terminated by the Plan at any time, whereupon the Foreign Affiliate 
shall deliver certificates for securities identical to the borrowed 
securities (or the equivalent thereof in the event of reorganization, 
recapitalization or merger of the issuer of the borrowed securities) to 
the Plan within (a) the customary delivery period for such securities, 
(b) five business days, or (c) the time negotiated for such delivery by 
the Plan and the Foreign Affiliate, whichever is least, or, 
alternatively such period as permitted by Prohibited Transaction Class 
Exemption (PTCE) 81-6 (46 FR 7527, January 23, 1981, as amended at 52 
FR 18754, May 19, 1987), as it may be amended or superseded.\2\
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    \2\ PTCE 81-6 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 
a U.S. broker-dealer registered under the 1934 Act (or exempted from 
registration under the 1934 Act as a dealer in exempt Government 
securities, as defined therein).
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    (10) In the event that the loan is terminated and the Foreign 
Affiliate fails to return the borrowed securities or the equivalent 
thereof within the time described in paragraph (9), the Plan may 
purchase securities identical to the borrowed securities (or their 
equivalent as described above) and may apply the collateral to the 
payment of the purchase price, any other obligations of the Foreign 
Affiliate under the Loan Agreement, and any expenses associated with 
the sale and/or purchase. The Foreign Affiliate is obligated to pay, 
under the terms of the Loan Agreement, and does pay, to the Plan, the 
amount of any remaining obligations and expenses not covered by the 
collateral, plus interest at a reasonable rate. Notwithstanding the 
foregoing, the Foreign Affiliate may, in the event it fails to return 
borrowed securities as described above, replace non-cash collateral 
with an amount of cash not less than the then current market value of 
the collateral, provided that such replacement is approved by the 
independent Plan fiduciary; and
    (11) The independent Plan fiduciary maintains the situs of the Loan 
Agreement in accordance with the indicia of ownership requirements 
under section 404(b) of the Act and the regulations promulgated under 
29 CFR 2550.404b-1. However, in the event that the independent Plan 
fiduciary does not maintain the situs of the Loan Agreement in 
accordance with the indicia of ownership requirements of section 404(b) 
of the Act, the Foreign Affiliate shall not be subject to the civil 
penalty which may be assessed under section 502(i) of the Act, or the 
taxes imposed by section 4975(a) and (b) of the Code.
    If the Foreign Affiliate fails to comply with any condition of this 
exemption in the course of engaging in a securities lending 
transaction, the Plan fiduciary which caused the Plan to engage in such 
transaction shall not be deemed to have caused the Plan to engage in a 
transaction prohibited by section 406(a)(1)(A) through (D) of the Act 
solely by reason of the Foreign Affiliate's failure to comply with the 
conditions of the exemption.

Section II. General Conditions

    A. The Foreign Affiliate is a registered broker-dealer subject to 
regulation by a governmental agency, as described in Section III. B., 
and is in compliance with all applicable rules and regulations thereof 
in connection with any transactions covered by this exemption;
    B. The Foreign Affiliate, in connection with any transactions 
covered by this exemption, is in compliance with the requirements of 
Rule 15a-6 (17 CFR 240.15a-6) of the 1934 Act, and Securities and 
Exchange Commission interpretations thereof, providing for foreign 
affiliates a limited exemption from U.S. broker-dealer registration 
requirements.
    C. Prior to the transaction, the Foreign Affiliate enters into a 
written agreement with the Plan in which the Foreign Affiliate consents 
to the jurisdiction of the courts of the United States for any civil 
action or proceeding brought in respect of the subject transactions.
    D. The Foreign Affiliate maintains, or causes to be maintained, 
within the United States for a period of six years from the date of any 
transaction such records as are necessary to enable the persons 
described in paragraph E. to determine whether the conditions of this 
exemption have been met except that--

[[Page 46830]]

    (1) A party in interest with respect to a Plan, other than the 
Foreign Affiliate, shall not be subject to a civil penalty under 
section 502(i) of the Act or the taxes imposed by section 4975(a) or 
(b) of the Code, if such records are not maintained, or are not 
available for examination, as required by paragraph E.; and
    (2) A prohibited transaction shall not be deemed to have occurred 
if, due to circumstances beyond the control of the Foreign Affiliate, 
such records are lost or destroyed prior to the end of such six year 
period;
    E. Notwithstanding the provisions of subsections (a)(2) and (b) of 
section 504 of the Act, the Foreign Affiliate makes the records 
referred to above in paragraph D., unconditionally available for 
examination during normal business hours at their customary location to 
the following persons or an authorized representative thereof:
    (1) The Department, the Internal Revenue Service or the SEC;
    (2) Any fiduciary of a Plan;
    (3) Any contributing employer to a Plan;
    (4) Any employee organization any of whose members are covered by a 
Plan; and
    (5) Any participant or beneficiary of a Plan.

However, none of the persons described above in paragraphs (2)-(5) of 
this paragraph E. shall be authorized to examine trade secrets of the 
Foreign Affiliate, or any commercial or financial information which is 
privileged or confidential.
    F. Prior to any Plan's approval of any transaction with a Foreign 
Affiliate, the Plan is provided copies of the proposed and final 
exemption with respect to the exemptive relief granted herein.

Section III. Definitions

    For purposes of this proposed exemption,
    A. The terms ``DLJ'' or ``CSFB'' as referred to in Section I., mean 
Donaldson, Lufkin & Jenrette Securities Corporation or Credit Suisse 
First Boston Corporation.
    B. The term ``affiliate'' of another person shall include:
    (1) Any person directly or indirectly, through one or more 
intermediaries, controlling, controlled by, or under common control 
with such other person;
    (2) Any officer, director, or partner, employee or relative (as 
defined in section 3(15) of the Act) of such other person; and
    (3) Any corporation or partnership of which such other person is an 
officer, director or partner. (For purposes of this definition, the 
term ``control'' means the power to exercise a controlling influence 
over the management or policies of a person other than an individual.)
    C. The term ``Foreign Affiliate,'' shall mean a current or future 
affiliate of DLJ or CSFB that is subject to regulation as a broker-
dealer by--
    (1) The Securities and Futures Authority, in the United Kingdom; or
    (2) The Australian Securities & Investments Commission in 
Australia.
    D. The term ``security'' shall include equities, fixed income 
securities, options on equity and on fixed income securities, 
government obligations, and any other instrument that constitutes a 
security under U.S. securities laws. The term ``security'' does not 
include swap agreements or other notional principal contracts.

Section IV. Effective Date

    If granted, this proposed exemption will be effective as of 
November 3, 2000.
    The availability of this proposed exemption is subject to the 
express condition that the material facts and representations contained 
in the application for exemption are true and complete and accurately 
describe all material terms of the transactions. In the case of 
continuing transactions, if any of the material facts or 
representations described in the applications change, the exemption 
will cease to apply as of the date of such change. In the event of any 
such change, an application for a new exemption must be made to the 
Department.
    For a more complete statement of the facts and representations 
supporting the Department's decision to grant PTE 99-45, refer to the 
proposed exemption and the grant notice which are cited above.

    Signed at Washington, DC, this 4th day of September, 2001.
Ivan L. Strasfeld,
Director of Exemption Determinations, Pension and Welfare Benefits 
Administration, Department of Labor.
[FR Doc. 01-22479 Filed 9-6-01; 8:45 am]
BILLING CODE 4510-29-P