Exemptions From Certain Prohibited Transaction Restrictions, 45690-45695 [2012-18701]
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45690
Federal Register / Vol. 77, No. 148 / Wednesday, August 1, 2012 / Notices
Contact
Michel Smyth by telephone at 202–693–
4129 (this is not a toll-free number) or
by email at DOL_PRA_PUBLIC@dol.gov.
FOR FURTHER INFORMATION:
Authority: 44 U.S.C. 3507(a)(1)(D).
The 1,2Dibromo-3-Chloropropane (DBCP)
Standard codified at 29 CFR 1910–1044
makes it mandatory for covered
employers to train workers about the
hazards of DBCP, to monitor worker
exposure, to provide medical
surveillance, and to maintain accurate
records of worker exposure to DBCP.
Employers, workers, physicians, and the
Government use these records to ensure
workers are not harmed by exposure to
DBCP in the workplace.
This information collection is subject
to the PRA. A Federal agency generally
cannot conduct or sponsor a collection
of information, and the public is
generally not required to respond to an
information collection, unless it is
approved by the OMB under the PRA
and displays a currently valid OMB
Control Number. In addition,
notwithstanding any other provisions of
law, no person shall generally be subject
to penalty for failing to comply with a
collection of information if the
collection of information does not
display a valid Control Number. See 5
CFR 1320.5(a) and 1320.6. The DOL
obtains OMB approval for this
information collection under Control
Number 1218–0101. The current
approval is scheduled to expire on
August 31, 2012; however, it should be
noted that existing information
collection requirements submitted to the
OMB receive a month-to-month
extension while they undergo review.
For additional information, see the
related notice published in the Federal
Register on April 6, 2012 (77 FR 20850).
Interested parties are encouraged to
send comments to the OMB, Office of
Information and Regulatory Affairs at
the address shown in the ADDRESSES
section within 30 days of publication of
this notice in the Federal Register. In
order to help ensure appropriate
consideration, comments should
mention OMB Control Number 1218–
0101. The OMB is particularly
interested in comments that:
• Evaluate whether the proposed
collection of information is necessary
for the proper performance of the
functions of the agency, including
whether the information will have
practical utility;
• Evaluate the accuracy of the
agency’s estimate of the burden of the
proposed collection of information,
including the validity of the
methodology and assumptions used;
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SUPPLEMENTARY INFORMATION:
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• Enhance the quality, utility, and
clarity of the information to be
collected; and
• Minimize the burden of the
collection of information on those who
are to respond, including through the
use of appropriate automated,
electronic, mechanical, or other
technological collection techniques or
other forms of information technology,
e.g., permitting electronic submission of
responses.
Agency: DOL–OSHA.
Title of Collection: The 1,2-Dibromo3-Chloropropane Standard.
OMB Control Number: 1218–0101.
Affected Public: Private Sector—
Businesses or other for-profits.
Total Estimated Number of
Respondents: 1.
Total Estimated Number of
Responses: 1.
Total Estimated Annual Burden
Hours: 1.
Total Estimated Annual Other Costs
Burden: $0.
Dated: July 26, 2012.
Michel Smyth,
Departmental Clearance Officer.
[FR Doc. 2012–18817 Filed 7–31–12; 8:45 a.m.]
BILLING CODE 4510–26–P
DEPARTMENT OF LABOR
Employee Benefits Security
Administration
Statutory Findings
Exemptions From Certain Prohibited
Transaction Restrictions
Employee Benefits Security
Administration, Labor.
ACTION: Grant of Individual Exemptions.
AGENCY:
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: D–11517, JPMorgan
Chase & Co. and its Current
Subsidiaries, 2012–14; D–11582, South
Plains Financial, Inc. Employee Stock
Ownership Plan, 2012–15; D–11649,
Meridian Medical Associates, S.C.
Employees’ Retirement Plan and Trust,
2012–16; D–11668, TIB Financial Corp.
Employee Stock Ownership Plan with
401(k) Provisions, 2012–17; and D–
11714, Ed Laur Defined Benefit Plan,
2012–18.
SUPPLEMENTARY INFORMATION: A notice
was published in the Federal Register of
the pendency before the Department of
a proposal to grant each such
SUMMARY:
PO 00000
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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). Each
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.
Each notice of proposed exemption
was issued and each 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.
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 (76 FR 66637,
66644, October 27, 2011) 1 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.
JPMorgan Chase & Co. and Its Current
and Future Affiliates and Subsidiaries
(JPMorgan Chase) Located in New
York, New York
[Prohibited Transaction Exemption
2012–14, Exemption Application No. D–
11517].
1 The Department has considered exemption
applications received prior to December 27, 2011
under the exemption procedures set forth in 29 CFR
part 2570, subpart B (55 FR 32836, 32847, August
10, 1990).
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Exemption
Section I. Sales of Auction Rate
Securities From Plans to JPMorgan
Chase: Unrelated to a Settlement
Agreement
The restrictions of section
406(a)(1)(A) and (D) and section
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), (D), and (E) of
the Code, shall not apply, effective
February 1, 2008, to the sale by a Plan
(as defined in section V(e)) of an
Auction Rate Security (as defined in
section V(c)) to JPMorgan Chase, where
such sale (an Unrelated Sale) is
unrelated to, and not made in
connection with, a Settlement
Agreement (as defined in section V(f)),
provided that the conditions set forth in
section II have been met.2
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Section II. Conditions Applicable to
Transactions Described in Section I
(a) The Plan acquired the Auction
Rate Security in connection with
brokerage or advisory services provided
by JPMorgan Chase;
(b) The last auction for the Auction
Rate Security was unsuccessful;
(c) Except in the case of a Plan
sponsored by JPMorgan Chase for its
own employees (a JPMorgan Chase
Plan), the Unrelated Sale is made
pursuant to a written offer by JPMorgan
Chase (the Offer) containing all of the
material terms of the Unrelated Sale,
including, but not limited to the most
recent rate information for the Auction
Rate Security (if reliable information is
available). Either the Offer or other
materials available to the Plan provide
the identity and par value of the
Auction Rate Security. Notwithstanding
the foregoing, in the case of a pooled
fund maintained or advised by
JPMorgan Chase, this condition shall be
deemed met to the extent each Plan
invested in the pooled fund (other than
a JPMorgan Chase Plan) receives written
notice regarding the Unrelated Sale,
where such notice contains the material
terms of the Unrelated Sale, including,
but not limited to, the material terms
described in the preceding sentence;
(d) The Unrelated Sale is for no
consideration other than cash payment
against prompt delivery of the Auction
Rate Security;
(e) The sales price for the Auction
Rate Security is equal to the par value
of the Auction Rate Security, plus any
2 For purposes of this exemption, references to
section 406 of the Act should be read to refer as
well to the corresponding provisions of section
4975 of the Code.
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accrued but unpaid interest or
dividends; 3
(f) The Plan does not waive any rights
or claims in connection with the
Unrelated Sale;
(g) The decision to accept the Offer or
retain the Auction Rate Security is made
by a Plan fiduciary or Plan participant
or IRA owner who is independent (as
defined in section V(d)) of JPMorgan
Chase. Notwithstanding the foregoing:
(1) in the case of an individual
retirement account (an IRA, as described
in section V(e) below) which is
beneficially owned by an employee,
officer, director or partner of JPMorgan
Chase, or a relative of any such persons,
the decision to accept the Offer or retain
the Auction Rate Security may be made
by such employee, officer, director,
partner, or relative; or (2) in the case of
a JPMorgan Chase Plan or a pooled fund
maintained or advised by JPMorgan
Chase, the decision to accept the Offer
may be made by JPMorgan Chase after
JPMorgan Chase has determined that
such purchase is in the best interest of
the JPMorgan Chase Plan or pooled
fund; 4
(h) Except in the case of a JPMorgan
Chase Plan or a pooled fund maintained
or advised by JPMorgan Chase, neither
JPMorgan Chase nor any affiliate
exercises investment discretion or
renders investment advice within the
meaning of 29 CFR 2510.3–21(c) with
respect to the decision to accept the
Offer or retain the Auction Rate
Security;
3 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 III 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.
4 The Department notes that the Act’s general
standards of fiduciary conduct also would apply to
the transactions described herein. In this regard,
section 404 of the Act 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, the decision to
sell the Auction Rate Security to JPMorgan Chase
for the par value of the Auction Rate Security, plus
any accrued but unpaid interest or dividends. The
Department further emphasizes that it expects Plan
fiduciaries, prior to entering into any of the
transactions, to fully understand the risks
associated with this type of transaction following
disclosure by JPMorgan Chase of all relevant
information.
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45691
(i) The Plan does not pay any
commissions or transaction costs with
respect to the Unrelated Sale;
(j) The Unrelated Sale is not part of an
arrangement, agreement or
understanding designed to benefit a
party in interest to the Plan;
(k) JPMorgan Chase and its affiliates,
as applicable, maintain, or cause to be
maintained, for a period of six (6) years
from the date of the Unrelated Sale,
such records as are necessary to enable
the persons described below in
paragraph (l)(1), to determine whether
the conditions of this exemption have
been met, except that—
(1) No party in interest with respect
to a Plan which engages in an Unrelated
Sale, other than JPMorgan Chase and its
affiliates, as applicable, shall be subject
to a civil penalty under section 502(i) of
the Act or the taxes imposed by section
4975(a) and (b) of the Code, if such
records are not maintained, or not
available for examination, as required,
below, by paragraph (l)(1); and
(2) A separate prohibited transaction
shall not be considered to have occurred
solely because, due to circumstances
beyond the control of JPMorgan Chase
or its affiliates, as applicable, such
records are lost or destroyed prior to the
end of the six-year period;
(l)(1) Except as provided below in
paragraph (l)(2), and notwithstanding
any provisions of subsections (a)(2) and
(b) of section 504 of the Act, the records
referred to above in paragraph (k) 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;
or
(B) Any fiduciary of any Plan,
including any IRA owner, that engages
in a Sale, or any duly authorized
employee or representative of such
fiduciary; or
(C) Any employer of participants and
beneficiaries and any employee
organization whose members are
covered by a Plan that engages in the
Unrelated Sale, or any authorized
employee or representative of these
entities;
(2) None of the persons described
above in paragraph (l)(1)(B)–(C) shall be
authorized to examine trade secrets of
JPMorgan Chase, or commercial or
financial information which is
privileged or confidential; and
(3) Should JPMorgan Chase refuse to
disclose information on the basis that
such information is exempt from
disclosure, JPMorgan Chase shall, by the
close of the thirtieth (30th) day
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following the request, provide a written
notice advising that person of the
reasons for the refusal and that the
Department may request such
information.
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Section III. Sales of Auction Rate
Securities From Plans to JPMorgan
Chase: Related to a Settlement
Agreement
The restrictions of section
406(a)(1)(A) and (D) and section
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), (D), and (E) of
the Code, shall not apply, effective
February 1, 2008, to the sale by a Plan
of an Auction Rate Security to JPMorgan
Chase, where such sale (a Settlement
Sale) is related to, and made in
connection with, a Settlement
Agreement, provided that the conditions
set forth in Section IV have been met.
Section IV. Conditions Applicable to
Transactions Described in Section III
(a) The terms and delivery and timing
of the Offer are consistent with the
requirements set forth in the Settlement
Agreement;
(b) The Offer or other documents
available to the Plan specifically
describe, among other things:
(1) How a Plan may determine: the
Auction Rate Securities held by the Plan
with JPMorgan Chase, the purchase
dates for the Auction Rate Securities,
and (if reliable information is available)
the most recent rate information for the
Auction Rate Securities;
(2) The number of shares and par
value of the Auction Rate Securities
available for purchase under the Offer;
(3) The background of the Offer;
(4) That participating in the Offer will
not result in or constitute a waiver of
any claim of the tendering Plan;
(5) The methods and timing by which
Plans may accept the Offer;
(6) The purchase dates, or the manner
of determining the purchase dates, for
Auction Rate Securities tendered
pursuant to the Offer;
(7) The timing for acceptance by
JPMorgan Chase of tendered Auction
Rate Securities;
(8) The timing of payment for Auction
Rate Securities accepted by JPMorgan
Chase for payment;
(9) The methods and timing by which
a Plan may elect to withdraw tendered
Auction Rate Securities from the Offer;
(10) The expiration date of the Offer;
(11) The fact that JPMorgan Chase
may make purchases of Auction Rate
Securities outside of the Offer and may
otherwise buy, sell, hold or seek to
restructure, redeem or otherwise
dispose of the Auction Rate Securities;
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(12) A description of the risk factors
relating to the Offer as JPMorgan Chase
deems appropriate;
(13) How to obtain additional
information concerning the Offer; and
(14) The manner in which
information concerning material
amendments or changes to the Offer will
be communicated to affected Plans;
(c) The terms of the Settlement Sale
are consistent with the requirements set
forth in the Settlement Agreement; and
(d) All of the conditions in Section II
have been met with respect to the
Settlement Sale.
Section V. Definitions
For purposes of this exemption:
(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 ‘‘control’’ means: The
power to exercise a controlling
influence over the management or
policies of a person other than an
individual;
(c) The term ‘‘Auction Rate Security’’
means a security that:
(1) Is either a debt instrument
(generally with a long-term nominal
maturity) or preferred stock; and
(2) Has an interest rate or dividend
that is reset at specific intervals through
a Dutch auction process;
(d) A person is ‘‘independent’’ of
JPMorgan Chase if the person is:
(1) Not JPMorgan Chase or an affiliate;
and
(2) Not a relative (as defined in ERISA
section 3(15)) of the party engaging in
the transaction;
(e) The term ‘‘Plan’’ means: An
individual retirement account or similar
account described in section
4975(e)(1)(B) through (F) of the Code (an
IRA); an employee benefit plan as
defined in section 3(3) of ERISA; or an
entity holding plan assets within the
meaning of 29 CFR 2510.3–101, as
modified by ERISA section 3(42); and
(f) The term ‘‘Settlement Agreement’’
means: A legal settlement involving
JPMorgan Chase and a U.S. state or
federal authority that provides for the
purchase of an Auction Rate Security by
JPMorgan Chase from a Plan.
Effective Date: This exemption is
effective as of February 1, 2008.
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 December 13, 2011
at 76 FR 77594.
FOR FURTHER INFORMATION CONTACT:
Anna Mpras Vaughan of the
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Department, telephone (202) 693–8565.
(This is not a toll-free number.)
South Plains Financial, Inc. Employee
Stock Ownership Plan (the Plan)
Located in Lubbock, TX
[Prohibited Transaction Exemption
2012–15; Exemption Application No. D–
11582].
Exemption
The restrictions of sections
406(a)(1)(A), (D) and (E), 406(a)(2),
406(b)(1) and (b)(2), 407(a)(1)(A) of the
Act and the sanctions resulting from the
application of section 4975 of the Code,5
by reason of section 4975(c)(1)(A), (D)
and (E) of the Code, shall not apply, (1)
effective December 17, 2008, to the
acquisition and holding by the Plan of
certain interests (the LLC Interests) in
SPFI Investment Group, LLC (the LLC),
a former wholly owned subsidiary of the
Plan sponsor, South Plains Financial,
Inc. (SPF), which were distributed (the
Distribution) as dividends to the Plan as
a shareholder of SPF; and (2) the
proposed redemption (the Redemption)
by the LLC of the LLC Interests held by
the Plan.
This exemption is subject to the
following conditions:
(a) The Plan’s acquisition and holding
of the LLC Interests occurred in
connection with the Distribution,
wherein the Plan acquired the LLC
Interests automatically and without any
action on its part.
(b) The Plan’s acquisition of the LLC
Interests resulted from an independent
act of SPF as a corporate entity for
business reasons which did not involve
the Plan. As such, all shareholders of
SPF, including the Plan, were treated in
the same manner.
(c) The Plan paid no fees or
commissions in connection with the
acquisition and holding of the LLC
Interests.
(d) Within ninety (90) days after the
date of publication of this notice in the
Federal Register, the LLC redeems the
LLC Interests held by the Plan for no
less than the greater of $1,036,665 or the
fair market value of the LLC Interests on
the date that the Redemption occurs.
(e) The Redemption is a one-time sale
of the LLC Interests for cash.
(f) The terms and conditions of the
Redemption are at least as favorable to
the Plan as those obtainable in an arm’s
length transaction with an unrelated
party.
5 For purposes of this exemption, references to
section 406 of the Act should be read to refer as
well to the corresponding provisions of section
4975 of the Code.
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(g) The Plan pays no commissions,
costs or other expenses in connection
with the Redemption.
(h) An independent fiduciary has
approved the Redemption and monitors
such transaction on behalf of the Plan.
Effective Date: This exemption is
effective as of December 17, 2008, with
respect to the acquisition and holding
by the Plan of the LLC Interests. In
addition, this exemption is effective as
of the date of this final exemption with
respect to the LLC’s Redemption of the
LLC Interests held by the Plan.
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 March 30, 2012, at
77 FR 19345.
FOR FURTHER INFORMATION CONTACT: Ms.
Anna Mpras Vaughan of the
Department, telephone (202) 693–8565.
(This is not a toll-free number.)
Meridian Medical Associates, S.C.
Employees’ Retirement Plan and Trust
(the Plan) Located in Joliet, Illinois
[Prohibited Transaction Exemption
2012–16; Exemption Application No. D–
11649]
Exemption
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I—Transactions
The restrictions of sections
406(a)(1)(A), 406(a)(1)(D), 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), 4975(c)(1)(D), and
4975(c)(1)(E) of the Code, will not apply
to:
(a) The cash purchase (the Purchase)
by the Plan (formerly, the Will County
Medical Associates, S.C. Employees’
Retirement Plan & Trust) of a 52 percent
(52%) beneficial ownership interest in a
parcel of improved real property (the
Annex) located in Joliet, Illinois, from
the JMG Property, LLC (the LLC), a party
in interest with respect to the Plan;
(b) The entry by the Plan through a
land trust (no. 6722), into a lease (the
Annex Lease) with Meridian Medical
Associates, S.C. (the Employer)
(formerly, the Will County Medical
Associates, S.C.), as lessee, of a 52
percent (52%) beneficial ownership
interest in the Annex; and
(c) The personal guarantees, jointly
and severally, by each of the
shareholders of the Employer of the
obligations of such Employer under the
terms of the Annex Lease; provided that
the conditions set forth, below, in
Section II are satisfied.
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II—Conditions
(a) With respect to the Purchase by
the Plan of a 52 percent (52%) beneficial
ownership interest in the Annex from
the LLC:
(1) The Purchase is a one-time
transaction for cash;
(2) The terms and conditions of the
Purchase are no less favorable to the
Plan than those obtainable by the Plan
under similar circumstances when
negotiated at arm’s length with
unrelated third parties;
(3) Prior to entering into the Purchase,
an independent, qualified fiduciary (the
I/F) determines that the Purchase is in
the interest of, and protective of the
Plan and of its participants and
beneficiaries;
(4) The I/F negotiates, reviews, and
approves the terms of the Purchase prior
to the consummation of such Purchase;
(5) The acquisition price paid by the
Plan for a 52 percent (52%) beneficial
ownership interest in the Annex is not
more than the fair market value of such
interest, as determined by an
independent, qualified appraiser, as of
the date of the Purchase;
(6) An independent, qualified
appraiser determines, as of the date of
the Purchase, the fair market value of a
parcel of improved real property (the
Original Facility), which is adjacent to
the Annex, and in which the Plan holds
a 100 percent (100%) beneficial
ownership interest through a land trust
(no. 2024);
(7) Immediately following the
Purchase, the combined fair market
value of the Plan’s 52 percent (52%)
beneficial ownership interest in the
Annex and the fair market value of the
Plan’s 100 percent (100%) beneficial
ownership interest in the Original
Facility when added together (the
Combined Facility) does not exceed 20
percent (20%) of the fair market value
of the total assets of the Plan;
(8) In the event of any actual or
potential divergence of interests
between the Plan and the LLC, that
results as a consequence of their shared
ownership interest in the Annex, the
I/F takes appropriate steps to resolve
such conflicts of interest and in all
events acts prudently and solely in the
interest of the Plan with respect to all
decisions pertaining to the acquisition,
holding, management, and disposition
of the Plan’s interest in the Annex. To
the extent that a conflict occurs, the I/
F has, by its written agreement, the sole
authority acting on behalf of the Plan to
determine the resolution of any conflict
that arises from the shared beneficial
ownership of the Annex by the Plan and
the LLC; and that such determination
shall be binding on the LLC; and
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45693
(9) The Plan does not incur any fees,
costs, commissions, or other charges as
a result of engaging in the Purchase,
other than the necessary and reasonable
fees payable to the I/F and to the
independent, qualified appraiser,
respectively.
(b) With respect to the Annex Lease:
(1) The terms and conditions of the
Annex Lease are no less favorable to the
Plan than those obtainable by the Plan
under similar circumstances when
negotiated at arm’s length with
unrelated third parties;
(2) Prior to entering into the Annex
Lease, the I/F, acting on behalf of the
Plan, negotiates, reviews, and approves
the terms and conditions of the Annex
Lease, and determines that the Annex
Lease is in the interest of, and protective
of the Plan and its participants and
beneficiaries;
(3) The I/F monitors and enforces
compliance with the conditions of this
exemption and monitors and enforces
compliance with all of the terms of the
Annex Lease throughout the initial term
of such lease and throughout the
duration of each renewal of such lease,
and is also responsible for legally
enforcing the payment of rent and the
proper performance of all other
obligations of the Employer under the
terms of such lease;
(4) The rent paid to the Plan by the
Employer under the initial term of the
Annex Lease, and the rent paid to the
Plan by the Employer during each
renewal of such lease, is based upon the
fair market value of the Annex, as
established by an independent,
qualified appraiser at the time of such
initial term and at the time of each
renewal of such lease;
(5) The rent under the Annex Lease is
adjusted at the commencement of the
second year of the term of such lease
and is adjusted every second year
thereafter by the I/F, based on an
appraisal of the fair market value of the
Annex, as established by an
independent, qualified appraiser at the
time of each such adjustment of rent. If
twelve percent (12%) of the fair market
value of the Annex, established by such
appraisal at the time of any such
adjustment, is greater than the then
current base rent under the Annex
Lease, then the base rent is revised by
the I/F to reflect the increase in fair
market value of the Annex, as
established by such appraisal. If twelve
percent (12%) of the fair market value
of the Annex, established by such
appraisal at the time of any such
adjustment, is less than or equal to the
then current base rent, then the base
rent remains unchanged by the I/F;
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45694
Federal Register / Vol. 77, No. 148 / Wednesday, August 1, 2012 / Notices
(6) The terms of the Annex Lease shall
be triple net, such that the Employer, as
lessee, is responsible for paying, in
addition to monthly rent, all costs for
maintenance, taxes, utilities, and
insurance on the Annex;
(7) Prior to entering into any renewal
of the Annex Lease, the I/F, acting on
behalf of the Plan, approves such
renewal beyond the initial term of such
lease; and
(8) The Plan does not incur any fees,
any costs, any commissions, and any
other charges and expenses as a result
of entering into the Annex Lease, other
than the necessary and reasonable fees
payable to the I/F and payable to the
independent, qualified appraiser,
respectively.
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 June
1, 2012, at 77 FR 32686.
FOR FURTHER INFORMATION CONTACT: Ms.
Angelena C. Le Blanc of the Department,
telephone (202) 693–8551. (This is not
a toll-free number.)
(Common Stock) as of 4:01 p.m., New
York City time, on July 12, 2010 (the
Record Date);
(b) The acquisition of the Rights by
the Plan resulted from an independent
act of TIB 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
(Participants) whose accounts in the
Plan received the Rights pursuant to the
Offering, 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.
Effective Date: This exemption is
effective from December 17, 2010,
through and including January 18, 2011.
TIB Financial Corp. Employee Stock
Ownership Plan With 401(k) Provisions
(the Plan) Located in Naples, Florida
Written Comments
The Department invited all interested
persons to submit written comments
and/or requests for a public hearing
with respect to the notice of proposed
exemption on or before May 21, 2012.
During the comment period, the
Department received one written
comment from a Participant concerning
the benefit of the Offering to the Plan
and the provision of information to
Participants concerning the terms of the
Offering. The Participant’s comment, as
well as the Applicant’s response to the
issues raised therein, is described
below. The Department received no
hearing requests.
[Prohibited Transaction Exemption
2012–17; Exemption Application No. D–
11668]
tkelley on DSK3SPTVN1PROD with NOTICES
Exemption
The restrictions of sections
406(a)(1)(A) and (E), 406(a)(2), 406(b)(1),
406(b)(2), and 407(a) of the Act and the
sanctions resulting from the application
of section 4975(c)(1)(A) and (E) of the
Code,6 shall not apply, effective
December 17, 2010 through January 18,
2011, to: (1) the acquisition of certain
stock rights (the Rights) by the Plan in
connection with, and under the terms
and conditions of, a Rights offering (the
Offering) by TIB Financial Corp. (TIB or
the Applicant), the Plan sponsor and a
party in interest with respect to the
Plan, and (2) the holding of the Rights
by the Plan during the subscription
period of the Offering; provided that the
following conditions were met:
(a) The receipt of the Rights by the
Plan occurred pursuant to Plan
provisions for individually directed
investments of such accounts, in
connection with the Offering, and was
made available by TIB on the same
terms to all shareholders of record (the
Shareholders) of TIB’s common stock
6 For purposes of this exemption, references to
the provisions of Title I of the Act, unless otherwise
specified, refer also to the corresponding provisions
of the Code.
VerDate Mar<15>2010
19:53 Jul 31, 2012
Jkt 226001
Participant’s Comment
The Participant’s comment concerned
the Participant’s belief that the Offering
was conducted in a manner that was not
in the benefit of the Participants in the
Plan, and that TIB failed to provide
information to Participants regarding
their rights and obligations under the
terms of the Offering. In this regard, the
Participant states that a third party
investment counselor whom the
Participant solicited for advice
suggested that the Offering benefited
TIB, but did not necessarily benefit the
Participants in the Plan. Furthermore,
the Participant states that Participants
had no choice except to deal with the
terms of the Offering. Finally, the
Participant states that Participants did
not receive information regarding whom
PO 00000
Frm 00120
Fmt 4703
Sfmt 4703
to contact or how to receive assistance
concerning the terms of the Offering.
Applicant’s Response
The Applicant reviewed the
Participant’s comment and disagreed
with the Participant’s characterization
of the Offering and the Participant’s
opportunity to participate in the
Offering. In response to the Participant’s
assertion that the Offering benefited
TIB, but did not necessarily benefit the
Participants in the Plan, the Applicant
states that the Offering was intended as
an opportunity for all shareholders of
TIB Stock including those who held the
TIB Stock in the Plan, to acquire
additional shares of TIB Stock at a price
below that available in the market at
that time. In this regard, the Applicant
notes that, as set forth in the proposed
exemption, the subscription price was
$15 per share of TIB Stock and the
closing price per share of TIB Stock on
the business day prior to the expiration
of the Offering was $19.51 per share, an
immediate gain of $4.51 per share for
those shareholders of TIB Stock who
exercised their Rights.
In response to the Participant’s
assertion that not enough information
was provided to Participants concerning
the terms of the Offering, the Applicant
states that TIB provided Participants
who held TIB Stock in their TIB Stock
Fund with sufficient information and
the opportunity to participate in the
Offering. The Applicant states that all
Plan Participants who held shares of
TIB Stock in the TIB Stock Fund in the
Plan were provided with the
opportunity to participate in the
Offering on the same terms as other
shareholders of TIB Stock (except for
the exercise process and the absence of
fees and sales commissions for shares of
TIB Stock held in the TIB Stock Fund),
including any employees who held
shares of Stock in accounts outside the
Plan.
The Applicant notes that, in order to
participate in the Offering with respect
to shares of TIB Stock that were held in
the Plan, Participants were mailed the
‘‘Instructions for Participants in the TIB
Financial Corp. Employee Stock
Ownership Plan with 401(k)
Provisions—Important information on
the TIB Financial Corp. Rights
Offering,’’ that provided Participants
with instructions on how to exercise the
Rights that were allocated to a
Participant’s Plan account. In addition,
the Applicant states that Participants
were provided with a special election
form to exercise their Rights and a
prospectus that was provided to all
shareholders of TIB Stock that described
the Offering in more detail.
E:\FR\FM\01AUN1.SGM
01AUN1
Federal Register / Vol. 77, No. 148 / Wednesday, August 1, 2012 / Notices
After giving full consideration to the
entire record, including the written
comment, the Department has decided
to grant the exemption, as described
above. The complete application file is
made available for public inspection in
the Public Disclosure Room of the
Employee Benefits Security
Administration, Room N–1513, U.S.
Department of Labor, 200 Constitution
Avenue NW., Washington, DC 20210.
For a more complete statement of the
facts and representations supporting the
Department’s decision to grant this
exemption, refer to the proposed
exemption published in the Federal
Register on March 30, 2012 at 77 FR
19352.
FOR FURTHER INFORMATION CONTACT:
Warren Blinder of the Department,
telephone (202) 693–8553. (This is not
a toll-free number.)
Ed Laur Defined Benefit Plan (the Plan)
Located in Amarillo, TX
[Exemption Application No. D–11714
Prohibited Transaction Exemption
2012–18]
tkelley on DSK3SPTVN1PROD with NOTICES
Exemption
The sanctions resulting from the
application of section 4975 of the Code,
by reason of section 4975(c)(1)(A)
through (E) of the Code,7 shall not apply
to the cash sale by the Plan to Ed Laur
(Mr. Laur) of shares of stock (the Stock)
of EnergyNet.com (EnergyNet); provided
that:
(a) The sale of the Stock by the Plan
to Mr. Laur is a one-time transaction in
which the Plan receives cash;
(b) As the result of the sale, the Plan
receives the fair market value of the
Stock, as determined by the CFO of
EnergyNet, as of the most recent
valuation of such Stock;
(c) The Plan pays no commissions or
fees in regard to the transaction; and
(d) The terms of the sale are no less
favorable to the Plan than those the Plan
would have received in similar
circumstances when negotiated at arm’s
length with unrelated third parties.
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 June
1, 2012, at 77 FR 32697.
FOR FURTHER INFORMATION CONTACT: Ms.
Angelena C. Le Blanc of the Department,
telephone (202) 693–8551. (This is not
a toll-free number.)
7 Pursuant to 29 CFR 2510.3–3(b) of the
Department’s regulations, there is no jurisdiction
with respect to the Plan under Title I of the Act.
However, there is jurisdiction under Title II of the
Act, pursuant to section 4975 of the Code.
VerDate Mar<15>2010
19:53 Jul 31, 2012
Jkt 226001
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) Each 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 an 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.
Lyssa E. Hall,
Director of Exemption Determinations,
Employee Benefits Security Administration,
U.S. Department of Labor.
[FR Doc. 2012–18701 Filed 7–31–12; 8:45 am]
BILLING CODE 4510–29–P
OFFICE OF MANAGEMENT AND
BUDGET
Audits of States, Local Governments,
and Non-Profit Organizations; OMB
Circular A–133 Compliance
Supplement
Executive Office of the
President, Office of Management and
Budget.
ACTION: Notice of availability of the 2012
OMB Circular A–133 Compliance
Supplement.
AGENCY:
This notice announces the
availability of the 2012 OMB Circular
A–133 Compliance Supplement
(Supplement). The notice also offers
SUMMARY:
PO 00000
Frm 00121
Fmt 4703
Sfmt 4703
45695
interested parties an opportunity to
comment on the 2012 Supplement. The
2012 Supplement adds seven new
programs, including four programs
added to existing clusters. It deletes
eight programs and has also been
updated for program changes and
technical corrections. The eight deleted
programs are:
• Catalog of Federal Domestic
Assistance (CFDA) 15.518, Garrison
Diversion Unit
• CFDA 15.520, Lewis and Clark Rural
Water System
• CFDA 20.603, Federal Highway Safety
Data Improvements Incentive
• CFDA 20.604, Safety Incentive Grants
for Use of Seatbelts
• CFDA 20.605, Safety Incentives to
Prevent Operation of Motor Vehicles
by Intoxicated Persons
• CFDA 20.933, National Infrastructure
Investments
• CFDA 93.713, ARRA—Child Care and
Development Block Grant
• CFDA 97.004, State Domestic
Preparedness Equipment Support
Program (State Homeland Security
Grant Program)
In total, the 2012 Supplement
includes 243 individual programs. A list
of changes to the 2012 Supplement can
be found at APPENDIX V. APPENDIX
VII provides an audit alert and lists
compliance requirements regarding the
grant programs funded under American
Recovery and Reinvestment Act of 2009.
Due to its length, the 2012 Supplement
is not included in this Notice. See
‘‘Addresses’’ for information about how
to obtain a copy either on line or
through the Government Printing Office.
DATES: The 2012 Supplement
supersedes the 2011 Supplement and
will apply to audits of fiscal years
beginning after June 30, 2011. All
comments on the 2012 Supplement
must be in writing and received by
October 31, 2012. Late comments will
be considered to the extent practicable.
We received no comments on the 2011
Supplement.
Due to potential delays in OMB’s
receipt and processing of mail sent
through the U.S. Postal Service, we
encourage respondents to submit
comments electronically to ensure
timely receipt. We cannot guarantee that
comments mailed will be received
before the comment closing date.
Electronic mail comments may be
submitted to:
Hai_M._Tran@omb.eop.gov. Please
include ‘‘A–133 Compliance
Supplement—2012’’ in the subject line
and the full body of your comments in
the text of the electronic message and as
an attachment. Please include your
E:\FR\FM\01AUN1.SGM
01AUN1
]]>Agencies
[Federal Register Volume 77, Number 148 (Wednesday, August 1, 2012)]
[Notices]
[Pages 45690-45695]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-18701]
-----------------------------------------------------------------------
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: D-11517, JPMorgan Chase & Co. and
its Current Subsidiaries, 2012-14; D-11582, South Plains Financial,
Inc. Employee Stock Ownership Plan, 2012-15; D-11649, Meridian Medical
Associates, S.C. Employees' Retirement Plan and Trust, 2012-16; D-
11668, TIB Financial Corp. Employee Stock Ownership Plan with 401(k)
Provisions, 2012-17; and D-11714, Ed Laur Defined Benefit Plan, 2012-
18.
SUPPLEMENTARY INFORMATION: A notice was published in the Federal
Register of the pendency before the Department of a proposal to grant
each 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). Each 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.
Each notice of proposed exemption was issued and each 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 (76 FR 66637, 66644, October 27, 2011) \1\ and based
upon the entire record, the Department makes the following findings:
---------------------------------------------------------------------------
\1\ The Department has considered exemption applications
received prior to December 27, 2011 under the exemption procedures
set forth in 29 CFR part 2570, subpart B (55 FR 32836, 32847, August
10, 1990).
---------------------------------------------------------------------------
(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.
JPMorgan Chase & Co. and Its Current and Future Affiliates and
Subsidiaries (JPMorgan Chase) Located in New York, New York
[Prohibited Transaction Exemption 2012-14, Exemption Application No. D-
11517].
[[Page 45691]]
Exemption
Section I. Sales of Auction Rate Securities From Plans to JPMorgan
Chase: Unrelated to a Settlement Agreement
The restrictions of section 406(a)(1)(A) and (D) and section
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), (D), and (E) of the Code, shall not apply, effective
February 1, 2008, to the sale by a Plan (as defined in section V(e)) of
an Auction Rate Security (as defined in section V(c)) to JPMorgan
Chase, where such sale (an Unrelated Sale) is unrelated to, and not
made in connection with, a Settlement Agreement (as defined in section
V(f)), provided that the conditions set forth in section II have been
met.\2\
---------------------------------------------------------------------------
\2\ For purposes of this exemption, references to section 406 of
the Act should be read to refer as well to the corresponding
provisions of section 4975 of the Code.
---------------------------------------------------------------------------
Section II. Conditions Applicable to Transactions Described in Section
I
(a) The Plan acquired the Auction Rate Security in connection with
brokerage or advisory services provided by JPMorgan Chase;
(b) The last auction for the Auction Rate Security was
unsuccessful;
(c) Except in the case of a Plan sponsored by JPMorgan Chase for
its own employees (a JPMorgan Chase Plan), the Unrelated Sale is made
pursuant to a written offer by JPMorgan Chase (the Offer) containing
all of the material terms of the Unrelated Sale, including, but not
limited to the most recent rate information for the Auction Rate
Security (if reliable information is available). Either the Offer or
other materials available to the Plan provide the identity and par
value of the Auction Rate Security. Notwithstanding the foregoing, in
the case of a pooled fund maintained or advised by JPMorgan Chase, this
condition shall be deemed met to the extent each Plan invested in the
pooled fund (other than a JPMorgan Chase Plan) receives written notice
regarding the Unrelated Sale, where such notice contains the material
terms of the Unrelated Sale, including, but not limited to, the
material terms described in the preceding sentence;
(d) The Unrelated Sale is for no consideration other than cash
payment against prompt delivery of the Auction Rate Security;
(e) The sales price for the Auction Rate Security is equal to the
par value of the Auction Rate Security, plus any accrued but unpaid
interest or dividends; \3\
---------------------------------------------------------------------------
\3\ 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 III 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.
---------------------------------------------------------------------------
(f) The Plan does not waive any rights or claims in connection with
the Unrelated Sale;
(g) The decision to accept the Offer or retain the Auction Rate
Security is made by a Plan fiduciary or Plan participant or IRA owner
who is independent (as defined in section V(d)) of JPMorgan Chase.
Notwithstanding the foregoing: (1) in the case of an individual
retirement account (an IRA, as described in section V(e) below) which
is beneficially owned by an employee, officer, director or partner of
JPMorgan Chase, or a relative of any such persons, the decision to
accept the Offer or retain the Auction Rate Security may be made by
such employee, officer, director, partner, or relative; or (2) in the
case of a JPMorgan Chase Plan or a pooled fund maintained or advised by
JPMorgan Chase, the decision to accept the Offer may be made by
JPMorgan Chase after JPMorgan Chase has determined that such purchase
is in the best interest of the JPMorgan Chase Plan or pooled fund; \4\
---------------------------------------------------------------------------
\4\ The Department notes that the Act's general standards of
fiduciary conduct also would apply to the transactions described
herein. In this regard, section 404 of the Act 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, the decision to sell
the Auction Rate Security to JPMorgan Chase for the par value of the
Auction Rate Security, plus any accrued but unpaid interest or
dividends. The Department further emphasizes that it expects Plan
fiduciaries, prior to entering into any of the transactions, to
fully understand the risks associated with this type of transaction
following disclosure by JPMorgan Chase of all relevant information.
---------------------------------------------------------------------------
(h) Except in the case of a JPMorgan Chase Plan or a pooled fund
maintained or advised by JPMorgan Chase, neither JPMorgan Chase nor any
affiliate exercises investment discretion or renders investment advice
within the meaning of 29 CFR 2510.3-21(c) with respect to the decision
to accept the Offer or retain the Auction Rate Security;
(i) The Plan does not pay any commissions or transaction costs with
respect to the Unrelated Sale;
(j) The Unrelated Sale is not part of an arrangement, agreement or
understanding designed to benefit a party in interest to the Plan;
(k) JPMorgan Chase and its affiliates, as applicable, maintain, or
cause to be maintained, for a period of six (6) years from the date of
the Unrelated Sale, such records as are necessary to enable the persons
described below in paragraph (l)(1), to determine whether the
conditions of this exemption have been met, except that--
(1) No party in interest with respect to a Plan which engages in an
Unrelated Sale, other than JPMorgan Chase and its affiliates, as
applicable, shall be subject to a civil penalty under section 502(i) of
the Act or the taxes imposed by section 4975(a) and (b) of the Code, if
such records are not maintained, or not available for examination, as
required, below, by paragraph (l)(1); and
(2) A separate prohibited transaction shall not be considered to
have occurred solely because, due to circumstances beyond the control
of JPMorgan Chase or its affiliates, as applicable, such records are
lost or destroyed prior to the end of the six-year period;
(l)(1) Except as provided below in paragraph (l)(2), and
notwithstanding any provisions of subsections (a)(2) and (b) of section
504 of the Act, the records referred to above in paragraph (k) 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; or
(B) Any fiduciary of any Plan, including any IRA owner, that
engages in a Sale, or any duly authorized employee or representative of
such fiduciary; or
(C) Any employer of participants and beneficiaries and any employee
organization whose members are covered by a Plan that engages in the
Unrelated Sale, or any authorized employee or representative of these
entities;
(2) None of the persons described above in paragraph (l)(1)(B)-(C)
shall be authorized to examine trade secrets of JPMorgan Chase, or
commercial or financial information which is privileged or
confidential; and
(3) Should JPMorgan Chase refuse to disclose information on the
basis that such information is exempt from disclosure, JPMorgan Chase
shall, by the close of the thirtieth (30th) day
[[Page 45692]]
following the request, provide a written notice advising that person of
the reasons for the refusal and that the Department may request such
information.
Section III. Sales of Auction Rate Securities From Plans to JPMorgan
Chase: Related to a Settlement Agreement
The restrictions of section 406(a)(1)(A) and (D) and section
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), (D), and (E) of the Code, shall not apply, effective
February 1, 2008, to the sale by a Plan of an Auction Rate Security to
JPMorgan Chase, where such sale (a Settlement Sale) is related to, and
made in connection with, a Settlement Agreement, provided that the
conditions set forth in Section IV have been met.
Section IV. Conditions Applicable to Transactions Described in Section
III
(a) The terms and delivery and timing of the Offer are consistent
with the requirements set forth in the Settlement Agreement;
(b) The Offer or other documents available to the Plan specifically
describe, among other things:
(1) How a Plan may determine: the Auction Rate Securities held by
the Plan with JPMorgan Chase, the purchase dates for the Auction Rate
Securities, and (if reliable information is available) the most recent
rate information for the Auction Rate Securities;
(2) The number of shares and par value of the Auction Rate
Securities available for purchase under the Offer;
(3) The background of the Offer;
(4) That participating in the Offer will not result in or
constitute a waiver of any claim of the tendering Plan;
(5) The methods and timing by which Plans may accept the Offer;
(6) The purchase dates, or the manner of determining the purchase
dates, for Auction Rate Securities tendered pursuant to the Offer;
(7) The timing for acceptance by JPMorgan Chase of tendered Auction
Rate Securities;
(8) The timing of payment for Auction Rate Securities accepted by
JPMorgan Chase for payment;
(9) The methods and timing by which a Plan may elect to withdraw
tendered Auction Rate Securities from the Offer;
(10) The expiration date of the Offer;
(11) The fact that JPMorgan Chase may make purchases of Auction
Rate Securities outside of the Offer and may otherwise buy, sell, hold
or seek to restructure, redeem or otherwise dispose of the Auction Rate
Securities;
(12) A description of the risk factors relating to the Offer as
JPMorgan Chase deems appropriate;
(13) How to obtain additional information concerning the Offer; and
(14) The manner in which information concerning material amendments
or changes to the Offer will be communicated to affected Plans;
(c) The terms of the Settlement Sale are consistent with the
requirements set forth in the Settlement Agreement; and
(d) All of the conditions in Section II have been met with respect
to the Settlement Sale.
Section V. Definitions
For purposes of this exemption:
(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 ``control'' means: The power to exercise a controlling
influence over the management or policies of a person other than an
individual;
(c) The term ``Auction Rate Security'' means a security that:
(1) Is either a debt instrument (generally with a long-term nominal
maturity) or preferred stock; and
(2) Has an interest rate or dividend that is reset at specific
intervals through a Dutch auction process;
(d) A person is ``independent'' of JPMorgan Chase if the person is:
(1) Not JPMorgan Chase or an affiliate; and
(2) Not a relative (as defined in ERISA section 3(15)) of the party
engaging in the transaction;
(e) The term ``Plan'' means: An individual retirement account or
similar account described in section 4975(e)(1)(B) through (F) of the
Code (an IRA); an employee benefit plan as defined in section 3(3) of
ERISA; or an entity holding plan assets within the meaning of 29 CFR
2510.3-101, as modified by ERISA section 3(42); and
(f) The term ``Settlement Agreement'' means: A legal settlement
involving JPMorgan Chase and a U.S. state or federal authority that
provides for the purchase of an Auction Rate Security by JPMorgan Chase
from a Plan.
Effective Date: This exemption is effective as of February 1, 2008.
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
December 13, 2011 at 76 FR 77594.
FOR FURTHER INFORMATION CONTACT: Anna Mpras Vaughan of the Department,
telephone (202) 693-8565. (This is not a toll-free number.)
South Plains Financial, Inc. Employee Stock Ownership Plan (the Plan)
Located in Lubbock, TX
[Prohibited Transaction Exemption 2012-15; Exemption Application No. D-
11582].
Exemption
The restrictions of sections 406(a)(1)(A), (D) and (E), 406(a)(2),
406(b)(1) and (b)(2), 407(a)(1)(A) of the Act and the sanctions
resulting from the application of section 4975 of the Code,\5\ by
reason of section 4975(c)(1)(A), (D) and (E) of the Code, shall not
apply, (1) effective December 17, 2008, to the acquisition and holding
by the Plan of certain interests (the LLC Interests) in SPFI Investment
Group, LLC (the LLC), a former wholly owned subsidiary of the Plan
sponsor, South Plains Financial, Inc. (SPF), which were distributed
(the Distribution) as dividends to the Plan as a shareholder of SPF;
and (2) the proposed redemption (the Redemption) by the LLC of the LLC
Interests held by the Plan.
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\5\ For purposes of this exemption, references to section 406 of
the Act should be read to refer as well to the corresponding
provisions of section 4975 of the Code.
---------------------------------------------------------------------------
This exemption is subject to the following conditions:
(a) The Plan's acquisition and holding of the LLC Interests
occurred in connection with the Distribution, wherein the Plan acquired
the LLC Interests automatically and without any action on its part.
(b) The Plan's acquisition of the LLC Interests resulted from an
independent act of SPF as a corporate entity for business reasons which
did not involve the Plan. As such, all shareholders of SPF, including
the Plan, were treated in the same manner.
(c) The Plan paid no fees or commissions in connection with the
acquisition and holding of the LLC Interests.
(d) Within ninety (90) days after the date of publication of this
notice in the Federal Register, the LLC redeems the LLC Interests held
by the Plan for no less than the greater of $1,036,665 or the fair
market value of the LLC Interests on the date that the Redemption
occurs.
(e) The Redemption is a one-time sale of the LLC Interests for
cash.
(f) The terms and conditions of the Redemption are at least as
favorable to the Plan as those obtainable in an arm's length
transaction with an unrelated party.
[[Page 45693]]
(g) The Plan pays no commissions, costs or other expenses in
connection with the Redemption.
(h) An independent fiduciary has approved the Redemption and
monitors such transaction on behalf of the Plan.
Effective Date: This exemption is effective as of December 17,
2008, with respect to the acquisition and holding by the Plan of the
LLC Interests. In addition, this exemption is effective as of the date
of this final exemption with respect to the LLC's Redemption of the LLC
Interests held by the Plan.
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
March 30, 2012, at 77 FR 19345.
FOR FURTHER INFORMATION CONTACT: Ms. Anna Mpras Vaughan of the
Department, telephone (202) 693-8565. (This is not a toll-free number.)
Meridian Medical Associates, S.C. Employees' Retirement Plan and Trust
(the Plan) Located in Joliet, Illinois
[Prohibited Transaction Exemption 2012-16; Exemption Application No. D-
11649]
Exemption
I--Transactions
The restrictions of sections 406(a)(1)(A), 406(a)(1)(D), 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), 4975(c)(1)(D), and 4975(c)(1)(E) of the Code, will not
apply to:
(a) The cash purchase (the Purchase) by the Plan (formerly, the
Will County Medical Associates, S.C. Employees' Retirement Plan &
Trust) of a 52 percent (52%) beneficial ownership interest in a parcel
of improved real property (the Annex) located in Joliet, Illinois, from
the JMG Property, LLC (the LLC), a party in interest with respect to
the Plan;
(b) The entry by the Plan through a land trust (no. 6722), into a
lease (the Annex Lease) with Meridian Medical Associates, S.C. (the
Employer) (formerly, the Will County Medical Associates, S.C.), as
lessee, of a 52 percent (52%) beneficial ownership interest in the
Annex; and
(c) The personal guarantees, jointly and severally, by each of the
shareholders of the Employer of the obligations of such Employer under
the terms of the Annex Lease; provided that the conditions set forth,
below, in Section II are satisfied.
II--Conditions
(a) With respect to the Purchase by the Plan of a 52 percent (52%)
beneficial ownership interest in the Annex from the LLC:
(1) The Purchase is a one-time transaction for cash;
(2) The terms and conditions of the Purchase are no less favorable
to the Plan than those obtainable by the Plan under similar
circumstances when negotiated at arm's length with unrelated third
parties;
(3) Prior to entering into the Purchase, an independent, qualified
fiduciary (the I/F) determines that the Purchase is in the interest of,
and protective of the Plan and of its participants and beneficiaries;
(4) The I/F negotiates, reviews, and approves the terms of the
Purchase prior to the consummation of such Purchase;
(5) The acquisition price paid by the Plan for a 52 percent (52%)
beneficial ownership interest in the Annex is not more than the fair
market value of such interest, as determined by an independent,
qualified appraiser, as of the date of the Purchase;
(6) An independent, qualified appraiser determines, as of the date
of the Purchase, the fair market value of a parcel of improved real
property (the Original Facility), which is adjacent to the Annex, and
in which the Plan holds a 100 percent (100%) beneficial ownership
interest through a land trust (no. 2024);
(7) Immediately following the Purchase, the combined fair market
value of the Plan's 52 percent (52%) beneficial ownership interest in
the Annex and the fair market value of the Plan's 100 percent (100%)
beneficial ownership interest in the Original Facility when added
together (the Combined Facility) does not exceed 20 percent (20%) of
the fair market value of the total assets of the Plan;
(8) In the event of any actual or potential divergence of interests
between the Plan and the LLC, that results as a consequence of their
shared ownership interest in the Annex, the I/F takes appropriate steps
to resolve such conflicts of interest and in all events acts prudently
and solely in the interest of the Plan with respect to all decisions
pertaining to the acquisition, holding, management, and disposition of
the Plan's interest in the Annex. To the extent that a conflict occurs,
the I/F has, by its written agreement, the sole authority acting on
behalf of the Plan to determine the resolution of any conflict that
arises from the shared beneficial ownership of the Annex by the Plan
and the LLC; and that such determination shall be binding on the LLC;
and
(9) The Plan does not incur any fees, costs, commissions, or other
charges as a result of engaging in the Purchase, other than the
necessary and reasonable fees payable to the I/F and to the
independent, qualified appraiser, respectively.
(b) With respect to the Annex Lease:
(1) The terms and conditions of the Annex Lease are no less
favorable to the Plan than those obtainable by the Plan under similar
circumstances when negotiated at arm's length with unrelated third
parties;
(2) Prior to entering into the Annex Lease, the I/F, acting on
behalf of the Plan, negotiates, reviews, and approves the terms and
conditions of the Annex Lease, and determines that the Annex Lease is
in the interest of, and protective of the Plan and its participants and
beneficiaries;
(3) The I/F monitors and enforces compliance with the conditions of
this exemption and monitors and enforces compliance with all of the
terms of the Annex Lease throughout the initial term of such lease and
throughout the duration of each renewal of such lease, and is also
responsible for legally enforcing the payment of rent and the proper
performance of all other obligations of the Employer under the terms of
such lease;
(4) The rent paid to the Plan by the Employer under the initial
term of the Annex Lease, and the rent paid to the Plan by the Employer
during each renewal of such lease, is based upon the fair market value
of the Annex, as established by an independent, qualified appraiser at
the time of such initial term and at the time of each renewal of such
lease;
(5) The rent under the Annex Lease is adjusted at the commencement
of the second year of the term of such lease and is adjusted every
second year thereafter by the I/F, based on an appraisal of the fair
market value of the Annex, as established by an independent, qualified
appraiser at the time of each such adjustment of rent. If twelve
percent (12%) of the fair market value of the Annex, established by
such appraisal at the time of any such adjustment, is greater than the
then current base rent under the Annex Lease, then the base rent is
revised by the I/F to reflect the increase in fair market value of the
Annex, as established by such appraisal. If twelve percent (12%) of the
fair market value of the Annex, established by such appraisal at the
time of any such adjustment, is less than or equal to the then current
base rent, then the base rent remains unchanged by the I/F;
[[Page 45694]]
(6) The terms of the Annex Lease shall be triple net, such that the
Employer, as lessee, is responsible for paying, in addition to monthly
rent, all costs for maintenance, taxes, utilities, and insurance on the
Annex;
(7) Prior to entering into any renewal of the Annex Lease, the I/F,
acting on behalf of the Plan, approves such renewal beyond the initial
term of such lease; and
(8) The Plan does not incur any fees, any costs, any commissions,
and any other charges and expenses as a result of entering into the
Annex Lease, other than the necessary and reasonable fees payable to
the I/F and payable to the independent, qualified appraiser,
respectively.
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 June 1, 2012, at 77 FR
32686.
FOR FURTHER INFORMATION CONTACT: Ms. Angelena C. Le Blanc of the
Department, telephone (202) 693-8551. (This is not a toll-free number.)
TIB Financial Corp. Employee Stock Ownership Plan With 401(k)
Provisions (the Plan) Located in Naples, Florida
[Prohibited Transaction Exemption 2012-17; Exemption Application No. D-
11668]
Exemption
The restrictions of sections 406(a)(1)(A) and (E), 406(a)(2),
406(b)(1), 406(b)(2), and 407(a) of the Act and the sanctions resulting
from the application of section 4975(c)(1)(A) and (E) of the Code,\6\
shall not apply, effective December 17, 2010 through January 18, 2011,
to: (1) the acquisition of certain stock rights (the Rights) by the
Plan in connection with, and under the terms and conditions of, a
Rights offering (the Offering) by TIB Financial Corp. (TIB or the
Applicant), the Plan sponsor and a party in interest with respect to
the Plan, and (2) the holding of the Rights by the Plan during the
subscription period of the Offering; provided that the following
conditions were met:
---------------------------------------------------------------------------
\6\ For purposes of this exemption, references to the provisions
of Title I of the Act, unless otherwise specified, refer also to the
corresponding provisions of the Code.
---------------------------------------------------------------------------
(a) The receipt of the Rights by the Plan occurred pursuant to Plan
provisions for individually directed investments of such accounts, in
connection with the Offering, and was made available by TIB on the same
terms to all shareholders of record (the Shareholders) of TIB's common
stock (Common Stock) as of 4:01 p.m., New York City time, on July 12,
2010 (the Record Date);
(b) The acquisition of the Rights by the Plan resulted from an
independent act of TIB 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 (Participants) whose accounts in
the Plan received the Rights pursuant to the Offering, 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.
Effective Date: This exemption is effective from December 17, 2010,
through and including January 18, 2011.
Written Comments
The Department invited all interested persons to submit written
comments and/or requests for a public hearing with respect to the
notice of proposed exemption on or before May 21, 2012. During the
comment period, the Department received one written comment from a
Participant concerning the benefit of the Offering to the Plan and the
provision of information to Participants concerning the terms of the
Offering. The Participant's comment, as well as the Applicant's
response to the issues raised therein, is described below. The
Department received no hearing requests.
Participant's Comment
The Participant's comment concerned the Participant's belief that
the Offering was conducted in a manner that was not in the benefit of
the Participants in the Plan, and that TIB failed to provide
information to Participants regarding their rights and obligations
under the terms of the Offering. In this regard, the Participant states
that a third party investment counselor whom the Participant solicited
for advice suggested that the Offering benefited TIB, but did not
necessarily benefit the Participants in the Plan. Furthermore, the
Participant states that Participants had no choice except to deal with
the terms of the Offering. Finally, the Participant states that
Participants did not receive information regarding whom to contact or
how to receive assistance concerning the terms of the Offering.
Applicant's Response
The Applicant reviewed the Participant's comment and disagreed with
the Participant's characterization of the Offering and the
Participant's opportunity to participate in the Offering. In response
to the Participant's assertion that the Offering benefited TIB, but did
not necessarily benefit the Participants in the Plan, the Applicant
states that the Offering was intended as an opportunity for all
shareholders of TIB Stock including those who held the TIB Stock in the
Plan, to acquire additional shares of TIB Stock at a price below that
available in the market at that time. In this regard, the Applicant
notes that, as set forth in the proposed exemption, the subscription
price was $15 per share of TIB Stock and the closing price per share of
TIB Stock on the business day prior to the expiration of the Offering
was $19.51 per share, an immediate gain of $4.51 per share for those
shareholders of TIB Stock who exercised their Rights.
In response to the Participant's assertion that not enough
information was provided to Participants concerning the terms of the
Offering, the Applicant states that TIB provided Participants who held
TIB Stock in their TIB Stock Fund with sufficient information and the
opportunity to participate in the Offering. The Applicant states that
all Plan Participants who held shares of TIB Stock in the TIB Stock
Fund in the Plan were provided with the opportunity to participate in
the Offering on the same terms as other shareholders of TIB Stock
(except for the exercise process and the absence of fees and sales
commissions for shares of TIB Stock held in the TIB Stock Fund),
including any employees who held shares of Stock in accounts outside
the Plan.
The Applicant notes that, in order to participate in the Offering
with respect to shares of TIB Stock that were held in the Plan,
Participants were mailed the ``Instructions for Participants in the TIB
Financial Corp. Employee Stock Ownership Plan with 401(k) Provisions--
Important information on the TIB Financial Corp. Rights Offering,''
that provided Participants with instructions on how to exercise the
Rights that were allocated to a Participant's Plan account. In
addition, the Applicant states that Participants were provided with a
special election form to exercise their Rights and a prospectus that
was provided to all shareholders of TIB Stock that described the
Offering in more detail.
[[Page 45695]]
After giving full consideration to the entire record, including the
written comment, the Department has decided to grant the exemption, as
described above. The complete application file is made available for
public inspection in the Public Disclosure Room of the Employee
Benefits Security Administration, Room N-1513, U.S. Department of
Labor, 200 Constitution Avenue NW., Washington, DC 20210.
For a more complete statement of the facts and representations
supporting the Department's decision to grant this exemption, refer to
the proposed exemption published in the Federal Register on March 30,
2012 at 77 FR 19352.
FOR FURTHER INFORMATION CONTACT: Warren Blinder of the Department,
telephone (202) 693-8553. (This is not a toll-free number.)
Ed Laur Defined Benefit Plan (the Plan) Located in Amarillo, TX
[Exemption Application No. D-11714
Prohibited Transaction Exemption 2012-18]
Exemption
The sanctions resulting from the application of section 4975 of the
Code, by reason of section 4975(c)(1)(A) through (E) of the Code,\7\
shall not apply to the cash sale by the Plan to Ed Laur (Mr. Laur) of
shares of stock (the Stock) of EnergyNet.com (EnergyNet); provided
that:
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\7\ Pursuant to 29 CFR 2510.3-3(b) of the Department's
regulations, there is no jurisdiction with respect to the Plan under
Title I of the Act. However, there is jurisdiction under Title II of
the Act, pursuant to section 4975 of the Code.
---------------------------------------------------------------------------
(a) The sale of the Stock by the Plan to Mr. Laur is a one-time
transaction in which the Plan receives cash;
(b) As the result of the sale, the Plan receives the fair market
value of the Stock, as determined by the CFO of EnergyNet, as of the
most recent valuation of such Stock;
(c) The Plan pays no commissions or fees in regard to the
transaction; and
(d) The terms of the sale are no less favorable to the Plan than
those the Plan would have received in similar circumstances when
negotiated at arm's length with unrelated third parties.
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 June 1, 2012, at 77 FR
32697.
FOR FURTHER INFORMATION CONTACT: Ms. Angelena C. Le Blanc of the
Department, telephone (202) 693-8551. (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) Each 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 an 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.
Lyssa E. Hall,
Director of Exemption Determinations, Employee Benefits Security
Administration, U.S. Department of Labor.
[FR Doc. 2012-18701 Filed 7-31-12; 8:45 am]
BILLING CODE 4510-29-P
