Mitigation Plans. As a financial agent to the Treasury, the Financial Agent owes a loyalty and fair dealing to the Treasury without considering the interests of other clients or its own proprietary interests when performing services under the FAA as more fully set forth in Section 5 of this FAA. To address the conflicts of interest identified above, the Financial Agent agrees to implement the following conflict of interest mitigation plans and associated conflicts of interest mitigation controls. The Financial Agent may provide revenue-generating business services, including asset management services, to financial institutions participating in Treasury programs. To address such actual or potential conflict of interest, the Financial Agent agrees not to provide business services to any financial institution for which the Financial Agent currently provides services to Treasury. To address the concern that the Financial Agent may unduly favor its clients at the expense of the Treasury, the Financial Agent agrees, in addition to complying with all other applicable laws and regulations, to implement a structure that ensures that the Financial Agent does not use any knowledge of non-public information obtained or developed pursuant to the FAA for the advantage of other client mandates. While providing asset management services to the Treasury, some individuals within the Financial Agent and among its Named Affiliates and contractors may have access to material non-public information related to the Treasury program, such as specific trades or trading strategies (effected or proposed to be effected) of the Treasury. Information is “material” if there is a substantial likelihood that a reasonable person would consider the information important in making an investment decision. The Financial Agent shall have a period of ninety (90) days after completion of services on a Participating Institution for the Treasury, during which no key individual performing services under this FAA shall perform any business services on behalf of the Financial Agent’s other clients or its fiduciary accounts with respect to the Participating Institution (the “Cooling Off Period”). The Cooling Off Period shall also apply to all key individuals’ personal trading activity. The Financial Agent also agrees to implement information barriers sufficient to prevent the misuse or unauthorized dissemination of material non-public information. The components of such information barriers shall include:
Appears in 1 contract
Sources: Financial Agency Agreement
Mitigation Plans. As a financial agent to the Treasury, the Financial Agent owes a loyalty and fair dealing to the Treasury without considering the interests of other clients or its own proprietary interests when performing services under the FAA as more fully set forth in Section 5 of this FAA. To address the conflicts of interest identified above, the Financial Agent agrees to implement the following conflict of interest mitigation plans and associated conflicts controls. As a fiduciary of interest mitigation controlsthe Treasury, the Financial Agent owes a fiduciary duty to the United States as set forth in Section 5 of this FAA. The Financial Agent may provide revenue-generating business services, including investment banking, asset management servicesmanagement, or other business services (collectively, “Other Services”) to financial institutions participating in Treasury programsthe Securities Issuer. To address such actual or potential conflict of interestinterests that may arise from the Financial Agent’s responsibility for providing the Treasury with Disposition Services with respect to the Securities, the Financial Agent agrees not to provide business services to any financial institution for which the Financial Agent currently provides services to Treasury. To address the concern that the Financial Agent may unduly favor its clients at the expense of the Treasury, the Financial Agent agrees, in addition to complying with all other applicable laws and regulations, to implement a structure that ensures that the Financial Agent does not use any knowledge unduly favor the interests of non-public information obtained or developed pursuant to the FAA for the advantage of its other client mandates. While providing asset management services to the Treasury, some individuals within the Financial Agent and among its Named Affiliates and contractors may have access to material non-public information related to the Treasury program, such as specific trades or trading strategies (effected or proposed to be effected) over those of the Treasury. Information is “material” The Financial Agent agrees to notify the Treasury if there is a substantial likelihood that a reasonable person would consider the information important Financial Agent currently or prospectively provides Other Services to the Securities Issuer. As part of such notification, the Financial Agent shall disclose to the Treasury whether the percentage of the Financial Agent’s total revenue from performing Other Services for the Securities Issuer over the previous 12- month period constituted over or under 5% of the Financial Agent’s total revenue during the period (exclusive of any revenue associated with any JV in making an investment decisionexistence as of the Effective Date with such Securities Issuer). The Financial Agent shall mitigate any potential conflicts of interest by ensuring that, so long as the Financial Agent performs services under this FAA, no key individuals performing Disposition Services under this FAA participates in the performance of Other Services for the Securities Issuer. For purposes of this FAA, “key individual” shall have the same meaning as it has in 31 C.F.R. § 31.201. In addition, the Financial Agent agrees to notify the Treasury prior to becoming engaged to perform any new Other Services for the Securities Issuer, other than regular and customary investment banking, asset management, underwriting and trading services (which shall not include, for the avoidance of doubt, strategic advisory assignments or acting as a period bookrunning manager of ninety (90an underwriting of common equity or common equity-linked offerings for the Securities Issuer) days after completion until the Financial Agent is no longer performing services under this FAA. In its sole discretion, the Treasury may require the Financial Agent to refrain from engaging in such new Other Services for the Securities Issuer. Alternatively, the Treasury may require the Financial Agent to establish a new conflicts of services on a Participating Institution for interest mitigation plan, subject to approval by the Treasury, during which prior to commencement of any such new Other Services. To address the concern that the Financial Agent may provide strategic advisory services to other clients regarding entering into a financial services arrangement with or the acquisition of the Securities Issuer in whole or in part, the Financial Agent agrees to notify the Treasury prior to becoming engaged to perform such advisory services on behalf of other clients. The notification shall describe the steps the Financial Agent has taken or proposes to take to mitigate the potential conflict, including by ensuring that no key individual performing services under this FAA shall perform Disposition Services performs such advisory services. With respect to any business services on behalf transaction or series of transactions involving financial instruments or operating assets (or a combination thereof) with an aggregate value of less than 5% of the total assets of the Securities Issuer (as reported in the most recent 10-K or 10-Q released by the Securities Issuer), the Financial Agent’s other clients or its fiduciary accounts with Agent shall be permitted to provide such strategic advisory services following such notification and imposition of restrictions on the activities of key individuals. With respect to all other strategic advisory services related to the Participating Institution (Securities Issuer, the “Cooling Off Period”). The Cooling Off Period Financial Agent shall also apply provide to all key individuals’ personal trading activitythe Treasury a description of the proposed strategic advisory services and a conflict of interest mitigation plan describing any additional steps the Financial Agent has taken or proposes to take to mitigate the potential conflict. The Financial Agent also shall not commence any such other strategic advisory services until the Treasury has approved such conflict of interest mitigation plan. To address concerns that the Financial Agent may unduly favor its proprietary interests at the expense of the Treasury, the Financial Agent agrees to implement information barriers sufficient to prevent restrict proprietary trading in the misuse Securities. While performing Disposition Services, the Financial Agent shall not trade in the Securities or unauthorized dissemination any Linked Securities for its own account other than (w) as part of material non-public information. The components its physically, procedurally and systemically separate statistical trading business, provided that as part of such information barriers business the Financial Agent shall include:not have a gross market exposure to the Securities of greater than 5% of its total portfolio, (x) in connection with a Basket Transaction, (y) in connection with the bona fide hedging of pre-existing proprietary investments in Securities or Linked Securities or (z) in connection with permitted customer facilitation trading or hedging as described in Conflict of Interest #5 below. For purposes of this exhibit, “Linked Securities” are defined as any securities that may be converted, exchanged or exercised into Securities or which, under the terms of the Linked Securities, whose value may be in whole or in significant part be determined by the value of Securities. For purposes of this exhibit, a “Basket Transaction” is defined to be
Appears in 1 contract
Sources: Financial Agency Agreement
Mitigation Plans. As a financial agent to the Treasury, the Financial Agent owes a loyalty and fair dealing to the Treasury without considering the interests of other clients or its own proprietary interests when performing services under the FAA as more fully set forth in Section 5 of this FAA. To address the conflicts of interest identified above, the Financial Agent agrees to implement the following conflict of interest mitigation plans and associated conflicts controls. As a fiduciary of interest mitigation controlsthe Treasury, the Financial Agent owes a fiduciary duty of loyalty and fair dealing to the United States as set forth in Section 5 of this FAA. The Financial Agent Group may provide revenue-generating business services, including asset management servicesinvestment banking, strategic advisory, capital markets, due diligence, valuation, investment advisory, brokerage, sales, or other business services (collectively, “Other Services”), to financial institutions participating in Treasury programsthe Assigned TARP Entities. To address such actual or potential conflict conflicts of interestinterests, the Financial Agent agrees not to provide business services to any financial institution for which the Financial Agent currently provides services to Treasury. To address the concern that the Financial Agent may unduly favor its clients at the expense of the Treasury, the Financial Agent agrees, in addition to complying with all other applicable laws and regulations, to implement a structure that ensures that the Financial Agent does not unduly favor the interests of its other clients over those of the Treasury. Identification of Existing Other Services. Before the Treasury directs the Financial Agent to provide transaction structuring services to the Treasury regarding the securities issued by the Assigned TARP Entities, the Financial Agent agrees to notify the Treasury if the Financial Agent Group currently provides Other Services to or related to the Assigned TARP Entities. As part of such notification, the Financial Agent shall disclose to the Treasury whether the Financial Agent or Financial Agent Group received in excess of 5% in total revenue from performing Other Services for or related to the Assigned TARP Entities, over the previous 12-month period. The Financial Agent shall mitigate any potential conflicts of interest by ensuring that, so long as the Financial Agent Group performs services under this FAA for the Assigned TARP Entities, no key individuals performing services under this FAA participates in the performance of Other Services for such Assigned TARP Entities. For purposes of this FAA, “key individual” shall have the same meaning as it has in 31 C.F.R. § 31.201. Limitation on Entering into Agreements to Perform Other Services. The Financial Agent Group agrees to refrain from entering into an engagement to perform any new Other Services for Assigned TARP Entities during the term of this FAA and the subsequent Cooling Off Period without express approval from the Treasury. To address the concern that the Financial Agent Group may provide strategic advisory, valuation, or due diligence services (which, for purposes of this Exhibit F, shall not be deemed to include the trading, brokerage, sales, investment advisory and private fund activities of the Financial Agent Group) to other clients regarding entering into financial services arrangements with or the acquisition, management or disposition of any interest in an Assigned TARP Entities or in whole or in part, the Financial Agent Group agrees to refrain from entering into an engagement to perform any such strategic advisory or due diligence services on behalf of a client during the term of this FAA and the subsequent Cooling Off Period without express approval from the Treasury. To address the concern that the Financial Agent Group may unduly favor its proprietary interests at the expense of the Treasury, the Financial Agent agrees to implement a structure that ensures that the Financial Agent Group does not use any knowledge of non-public information information, including the Treasury’s planning, long-term strategy, and disposition objectives obtained or developed pursuant to the FAA for to the advantage of its proprietary interests. As the Financial Agent will be advising the Treasury on the strategy, structure, and optimal timing to dispose of securities issued by the Assigned TARP Entities, the Financial Agent, including key individuals performing services under the FAA, who shall also be deemed Restricted Persons, shall not trade in, or make offers to purchase or sell, on behalf of any of their respective proprietary accounts, such financial interests or Securities during the term of this FAA and the Cooling Off Period. The Financial Agent Group and such Restricted Persons shall be subject to the Conflicts of Interest Mitigation Controls as set forth below. Furthermore, during the term of this FAA and for the Cooling Off Period, the Financial Agent Group shall refrain from providing proprietary capital to any asset management, private equity or any other client mandatesbusiness or subsidiary in which such proprietary capital would be used to establish a new business venture with 50% or more of its assets invested in small to mid cap financial institutions or to seed a fund with 50% or more of its assets invested in small to mid cap financial institutions or financial services sector without express written approval from the Treasury. To address the concern that the Financial Agent Group may unduly favor its corporate interests by utilizing organizations with whom the Financial Agent Group maintains a material business relationship, the Financial Agent shall disclose on a quarterly basis any material relationships with or revenue-sharing agreements with broker-dealers that are in consideration for use in the execution of transactions on behalf of the Treasury. Furthermore, entities within the Financial Agent Group shall be excluded from participating in the execution of any disposition strategy for the Assigned TARP Entities during the term of this FAA and the subsequent Cooling Off Period. To address the concern that the Financial Agent Group may unduly favor its clients’ interests at the expense of the Treasury, the Financial Agent agrees to implement a structure that ensures that the Financial Agent Group does not use any knowledge of nonpublic information, including the Treasury’s planning, long-term strategy, and disposition objectives obtained or developed pursuant to the FAA to the advantage of its clients’ interests. While providing asset management services to the Treasuryunder this FAA, some individuals within the Financial Agent and among its Named Affiliates and contractors Group may have gain access to material non-public nonpublic information related to the Treasury programTARP, such as specific trades or trading strategies (effected or proposed to be effected) of the Treasury. Such individuals shall be deemed Restricted Persons and subject to the provisions as set forth in the Conflicts of Interest Mitigation Controls section. Information is “material” if there is a substantial likelihood that a reasonable person would consider the information important in making an investment decision. The Financial Agent shall have a period of ninety (90) days after completion of services on a Participating Institution for the Treasury, during which no key individual performing services under this FAA shall perform any business services on behalf of the Financial Agent’s other clients or its fiduciary accounts with respect to the Participating Institution (the “Cooling Off Period”). The Cooling Off Period shall also apply to all key individuals’ personal trading activity. The Financial Agent also Group agrees to implement information barriers sufficient to prevent the misuse or unauthorized dissemination of material non-public nonpublic information. The components To address the concern regarding the objectivity of individuals performing services for the Treasury who may own, on behalf of personal accounts, the Securities, the Financial Agent agrees that all individuals responsible for providing services under this FAA shall be subject to a Code of Ethics, an associated Personal Securities Trading Policy, and guidelines on personal conflicts of interest to be issued to the Financial Agent by the Treasury. All key individuals shall disclose on a quarterly basis information equivalent to that required by the U.S. Office of Government Ethics Form 450 (“Form 450”) related to the Securities, Assigned TARP Entities and financial services and financial institutions sector to the Financial Agent’s Compliance Department for review. In addition, unless an investment is exempt from prior notification, all investments by such information barriers shall include:individuals must be pre-cleared by the Financial Agent’s Compliance Department and be subject to appropriate trading restrictions as described below.
Appears in 1 contract
Sources: Financial Agency Agreement