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EBSA Notices

Exemptions From Certain Prohibited Transaction Restrictions   [8/1/2012]
[PDF]
Federal Register, Volume 77 Issue 148 (Wednesday, August 1, 2012)
[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]


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DEPARTMENT OF LABOR

Employee Benefits Security Administration


Exemptions From Certain Prohibited Transaction Restrictions

AGENCY: Employee Benefits Security Administration, Labor.

ACTION: Grant of Individual Exemptions.

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SUMMARY: This document contains exemptions issued by the Department of 
Labor (the Department) from certain of the prohibited transaction 
restrictions of the Employee Retirement Income Security Act of 1974 
(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:
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    \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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    (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\
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    \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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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\
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    \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.
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    (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\
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    \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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    (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.
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    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:
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    \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.
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    (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.
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    (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