In particular, the NRL agreement does not contain any of the points requested by dol that will be added to agreements with ESOP administrators under the GBTC agreement. The NRL agreement does not contain language with requirements: compensation for directors is already excluded in the Ninth Circuit, but is permitted in either measure in other circuits, excluding any gross negligence. However, ERISA and DOL are used to compensate non-ESOP projects. This provision also provides for a cumbersome and impractical procedure for raising rates in legal cases, which could deter many potential agents from resuming an ESOP, which is already becoming more difficult. As we have already seen, the terms of the various transaction agreements have been considered by some ESOP administrators as “good practices”. However, given that the material provisions of the NBL agreement are identical to the material terms of the GBTC agreement, it remains to be seen whether only the provisions of the GBTC agreement and the NBL agreement should be regarded as “good practices” and that the other provisions that may appear in one or more other agreements are indeed tangential or specific to the particular circumstances of any agent referred to in those agreements. Holland-Knight has previously described each of the four previous transaction agreements and described how they differ from each other in previous customer warnings. (See Holland-Knights warnings, “DOL Settlement Agreement Provides ESOP Transaction Guidance,” September 27, 2017; “Other ESOP Transaction Guidance In Latest DOL Settlement Agreement,” October 9, 2017; and “DOL enters into another settlement agreement with ESOP Trustee,” February 28, 2018.) The NBL agreement is interesting in that it is identical to the first procedural agreement concluded by dol 2014 between DOL and the GreatBanc Trust Company (GBTC agreement). None of these provisions are part of new avenues with respect to ESOP`s fiduciary conduct, although these new provisions suggest that DOL may request more detailed documentation of how fiduciary findings were made in a given transaction. A detailed diagram that summarizes the conditions and highlights the similarities and differences between the previous five agreements and the new ETF agreement is here. A second new provision, found in the ETF agreement, requires the agent to ensure that he has sufficient time to conduct a full, complete and accurate audit and analysis of a transaction scheduled before the closing date of the transaction. The outstanding questions are whether the list of rights that the DOL provides here is now applicable in all ESOP transactions to show that ESOP has obtained effective control, whether a transfer of rights that are not on the list requires adaptation in the form of a DLOC and how to calculate the “appropriate” lack of control discounts.
While some aspects of the previous DOL procedural agreements have provided useful perspectives to the regulated community with respect to the simplicity of transactions and documentary procedures for ESOP transactions, the ETF agreement does not add rational and constructive guidelines. The list of control factors presented in the ETF agreement is largely separated from the ordinary conceptions of corporate governance and shareholder rights, and the compensation provisions create an expensive, unnecessary and probably impossible framework for the implementation of legally accepted compensation agreements. In order to counter conflicts of interest, the FBTS agreement provides that the agent cannot use the VA that has previously worked for any other part of the transaction than the ESOP itself or the agent.