EFTA00590334.pdf

U.S. Department of Justice Tax Division Washington, D.C. 20530 CDC:TJS:KFSweeney DJ 5-16-4672/DJ 5-16-4650 CMN 2014200678/CMN 2014000652 December 10, 2015 Kathryn Ruemmler Christopher Clark Lathan & Watkins LLP 555 Eleventh Street NW Suite 1000 Washington, DC 20004 Re: Edmond de Rothschild (Suisse) SA Edmond de Rothschidl (Lugano) SA DOJ Swiss Bank Program — Category 2 Non-Prosecution Agreement Dear Ms. Ruemmler and Mr. Clark: Banque Privee Edmond de Rothschild SA and its Lugano-based subsidiary, Banca Privata Edmond de Rothschild Lugano SA, submitted separate Letters of Intent on December 27, 2013, to participate in Category 2 of the Department of Justice's Program for Non-Prosecution Agreements or Non-Target Letters for Swiss Banks, as announced on August 29, 2013 (hereafter "Swiss Bank Program"). Since submitting their respective letters, the banks have changed their names to Edmond de Rothschild (Suisse) SA and Edmond de Rothschild (Lugano) SA respectively (hereinafter collectively referred to as "EdR Switzerland" or the "Bank") and joined for the purposes of the Swiss Bank Program. This Non-Prosecution Agreement ("Agreement") is entered into based on the representations in the aforementioned Letters of Intent and information provided by MR Switzerland pursuant to the terms of the Swiss Bank Program. The Swiss Bank Program is incorporated by reference herein in its entirety in this Agreement.' Any violation by Edmond de Rothschild (Suisse) SA or Edmond de Rothschild (Lugano) SA of the Swiss Bank Program will constitute a breach of this Agreement. Edmond de Rothschild (Suisse) SA and Edmond de Rothschild (Lugano) SA are separate legal entities that participated jointly in the Swiss Bank Program. They are severally bound by the obligations of this Agreement and severally liable for any individual breach of this Agreement. On the understandings specified below, the Department of Justice will not prosecute EdR Switzerland for any tax-related offenses under Titles 18 or 26, United States Code, or for any monetary transaction offenses under Title 31, United States Code, Sections 5314 and 5322, in I Capitalized terms shall have the meaning ascribed to them in the Swiss Bank Program. EFTA00590334 - 2 - connection with undeclared U.S. Related Accounts held by EdR Switzerland during the Applicable Period (the "conduct"). SIR Switzerland admits, accepts, and acknowledges responsibility for the conduct set forth in the Statement of Facts attached hereto as Exhibit A and agrees not to make any public statement contradicting the Statement of Facts. This Agreement does not provide any protection against prosecution for any offenses except as set forth above, and applies only to EdR Switzerland and does not apply to any other entities or to any individuals. EdR Switzerland expressly understands that the protections provided under this Agreement shall not apply to any acquirer or successor entity unless and until such acquirer or successor formally adopts and executes this Agreement. EdR Switzerland enters into this Agreement pursuant to the authority granted by the Board of Directors of Edmond de Rothschild (Suisse) SA and Edmond de Rothschild (Lugano) SA in the form of Board Resolutions (copies of which are attached hereto as Exhibits B and C). In recognition of the conduct described in this Agreement and in accordance with the terms of the Swiss Bank Program, EdR Switzerland agrees to pay the sum of $45,245,000 as a penalty to the Department of Justice ("the Department"). This shall be paid directly to the United States within seven (7) days of the execution of this Agreement pursuant to payment instructions provided to EdR Switzerland. This payment is in lieu of restitution, forfeiture, or criminal fine against EdR Switzerland for the conduct described in this Agreement. The Department will take no further action to collect any additional criminal penalty from Edit Switzerland with respect to the conduct described in this Agreement, unless the Tax Division determines EdR Switzerland has materially violated the terms of this Agreement or the Swiss Bank Program as described on pages 5-6 below. SIR Switzerland acknowledges that this penalty payment is a final payment and no portion of the payment will be refunded or returned under any circumstance, including a determination by the Tax Division that EdR Switzerland has violated any provision of this Agreement. SIR Switzerland agrees that it shall not file any petitions for remission, restoration, or any other assertion of ownership or request for return relating to the penalty amount or the calculation thereof, or file any other action or motion, or make any request or claim whatsoever, seeking to collaterally attack the payment or calculation of the penalty. Edit Switzerland agrees that it shall not assist any others in filing any such claims, petitions, actions, or motions. EdR Switzerland further agrees that no portion of the penalty that EdR Switzerland has agreed to pay to the Department under the terms of this Agreement will serve as a basis for EdR Switzerland to claim, assert, or apply for, either directly or indirectly, any tax deduction, any tax credit, or any other offset against any U.S. federal, state, or local tax or taxable income. The Department enters into this Agreement based, in part, on the following Swiss Bank Program factors: (a) EdR Switzerland's timely, voluntary, and thorough disclosure of its conduct, including: how its cross-border business for U.S. Related Accounts was structured, operated, and supervised (including internal reporting and other communications with and among management); the name and function of the individuals who structured, operated, or supervised the cross-border business for U.S. Related Accounts during the Applicable Period; EFTA00590335 - 3 - how EdR Switzerland attracted and serviced account holders; and an in-person presentation and documentation, properly translated, supporting the disclosure of the above information and other information that was requested by the Tax Division; (b) EdR Switzerland's cooperation with the Tax Division, including conducting an internal investigation and making presentations to the Tax Division on the status and findings of the internal investigation; (c) EdR Switzerland's production of information about its U.S. Related Accounts, including: the total number of U.S. Related Accounts and the maximum dollar value, in the aggregate, of the U.S. Related Accounts that (i) existed on August 1, 2008; (ii) were opened between August 1, 2008, and February 28, 2009; and (iii) were opened after February 28, 2009; the total number of accounts that were closed during the Applicable Period; and upon execution of the Agreement, as to each account that was closed during the Applicable Period, (i) the maximum value, in dollars, of each account, during the Applicable Period; (ii) the number of U.S. persons or entities affiliated or potentially affiliated with each account, and further noting the nature of the relationship to the account of each such U.S. person or entity or potential U.S. person or entity (e.g., a financial interest, beneficial interest, ownership, or signature authority, whether directly or indirectly, or other authority); (iii) whether it was held in the name of an individual or an entity; (iv) whether it held U.S. securities at any time during the Applicable Period; (v) the name and function of any relationship manager, client advisor, asset manager, financial advisor, trustee, fiduciary, nominee, attorney, accountant, or other individual or entity functioning in a similar capacity known by EdR Switzerland to be affiliated with said account at any time during the Applicable Period; and (vi) information concerning the transfer of funds into and out of the account during the Applicable Period, including (a) whether funds were deposited or withdrawn in cash; (b) whether funds were transferred through an intermediary (including but not limited to an asset manager, financial advisor, trustee, fiduciary, nominee, attorney, accountant, or other third party functioning in a similar capacity) and the name and function of any such intermediary; (c) identification of any financial institution and domicile of any financial institution that transferred funds into or received funds from the account; and (d) identification of any country to or from which funds were transferred; and (d) EdR Switzerland's retention of a qualified independent examiner who has verified the information EdR Switzerland disclosed pursuant to II.D.2 of the Swiss Bank Program. Under the terms of this Agreement, EdR Switzerland shall: (a) commit no U.S. federal offenses; and (b) truthfully and completely disclose, and continue to disclose during the term of EFTA00590336 - 4 - this Agreement, consistent with applicable law and regulations, all material information described in Part II.D.1 of the Swiss Bank Program that is not protected by a valid claim of privilege or work product with respect to the activities of EdR Switzerland, those of its parent company and its affiliates, and its officers, directors, employees, agents, consultants, and others, which information can be used for any purpose, except as otherwise limited in this Agreement. Notwithstanding the term of this Agreement, EdR Switzerland shall also, subject to applicable laws or regulations: (a) cooperate fully with the Department, the Internal Revenue Service, and any other federal law enforcement agency designated by the Department regarding all matters related to the conduct described in this Agreement; (b) provide all necessary information and assist the United States with the drafting of treaty requests seeking account information of U.S. Related Accounts, whether open or closed, and collect and maintain all records that are potentially responsive to such treaty requests in order to facilitate a prompt response; (c) assist the Department or any designated federal law enforcement agency in any investigation, prosecution, or civil proceeding arising out of or related to the conduct covered by this Agreement by providing logistical and technical support for any meeting, interview, federal grand jury proceeding, or any federal trial or other federal court proceeding; (d) use its best efforts promptly to secure the attendance and truthful statements or testimony of any officer, director, employee, agent, or consultant of EdR Switzerland at any meeting or interview or before a federal grand jury or at any federal trial or other federal court proceeding regarding matters arising out of or related to the conduct covered by this Agreement; (e) provide testimony of a competent witness as needed to enable the Department and any designated federal law enforcement agency to use the information and evidence obtained pursuant to EdR Switzerland's participation in the Swiss Bank Program; (f) provide the Department, upon request, consistent with applicable law and regulations, all information, documents, records, or other tangible evidence not protected by a valid claim of privilege or work product regarding matters arising out of or related to the conduct covered by this Agreement about which the Department or any designated federal law enforcement agency inquires, including the translation of significant documents at the expense of EdR Switzerland; and (g) provide to any state law enforcement agency such assistance as may reasonably be requested in order to establish the basis for admission into evidence of documents already in the possession of such state law enforcement agency in connection with any state civil or criminal tax proceedings brought by such state law enforcement agency against an individual arising out of or related to the conduct described in this Agreement. EdR Switzerland further agrees to undertake the following: 1. The Tax Division has agreed to specific dollar threshold limitations for the initial production of transaction information pursuant to Part II.D.2.b.vi of the Swiss Bank Program, and set forth in subparagraph (c) on pages 2-3 of this Agreement. EdR Switzerland agrees that, to the extent it has not provided complete transaction information, it will promptly provide the entirety of the transaction information upon request of the Tax Division. 2. EdR Switzerland agrees to close as soon as practicable, and in no event later than two years from the date of this Agreement, any and all accounts of recalcitrant account holders, as defined in Section 1471(d)(6) of the Internal Revenue Code; has implemented, or will implement, procedures to prevent its employees from EFTA00590337 - 5 - assisting recalcitrant account holders to engage in acts of further concealment in connection with closing any account or transferring any funds; and will not open any U.S. Related Accounts except on conditions that ensure that the account will be declared to the United States and will be subject to disclosure by EdR Switzerland. 3. EdR Switzerland agrees to use best efforts to close as soon as practicable, and in no event later than the four-year term of this Agreement, any and all U.S. Related Accounts classified as "dormant" in accordance with applicable laws, regulations and guidelines, and will provide periodic reporting upon request of the Tax Division if unable to close any dormant accounts within that time period. EdR Switzerland will only provide banking or securities services in connection with any such "dormant" account to the extent that such services are required pursuant to applicable laws, regulations and guidelines. If at any point contact with the account holder(s) (or other person(s) with authority over the account) is re- established, EdR Switzerland will promptly proceed to follow the procedures described above in paragraph 2. 4. EdR Switzerland agrees to retain all records relating to its U.S. cross-border business, including records relating to all U.S. Related Accounts closed during the Applicable Period, for a period of ten (10) years from the termination date of the this Agreement. With respect to any information, testimony, documents, records or other tangible evidence provided to the Tax Division pursuant to this Agreement, the Tax Division provides notice that it may, subject to applicable law and regulations, disclose such information or materials to other domestic governmental authorities for purposes of law enforcement or regulatory action as the Tax Division, in its sole discretion, shall deem appropriate. EdR Switzerland's obligations under this Agreement shall continue for a period of four (4) years from the date this Agreement is fully executed. EdR Switzerland, however, shall cooperate fully with the Department in any and all matters relating to the conduct described in this Agreement, until the date on which all civil or criminal examinations, investigations, or proceedings, including all appeals, are concluded, whether those examinations, investigations, or proceedings are concluded within the four-year term of this Agreement. It is understood that if the Tax Division determines, in its sole discretion, that: (a) EdR Switzerland committed any U.S. federal offenses during the term of this Agreement; (b) Edit Switzerland or any of its representatives have given materially false, incomplete, or misleading testimony or information; (c) the misconduct extended beyond that described in the Statement of Facts or disclosed to the Tax Division pursuant to Part II.D.1 of the Swiss Bank Program; or (d) EdR Switzerland has otherwise materially violated any provision of this Agreement or the terms of the Swiss Bank Program, then (i) EdR Switzerland shall thereafter be subject to prosecution and any applicable penalty, including restitution, forfeiture, or criminal fine, for any federal offense of which the Department has knowledge, including perjury and obstruction of justice; (ii) all statements made by EdR Switzerland's representatives to the Tax Division or other designated law enforcement agents, including but not limited to the appended Statement of Facts, any testimony given by EdR Switzerland's representatives before a grand jury or other EFTA00590338 - 6 - tribunal whether prior to or subsequent to the signing of this Agreement, and any leads therefrom, and any documents provided to the Department, the Internal Revenue Service, or designated law enforcement authority by EdR Switzerland shall be admissible in evidence in any criminal proceeding brought against EdR Switzerland and relied upon as evidence to support any penalty on EdR Switzerland; and (iii) EdR Switzerland shall assert no claim under the United States Constitution, any statute, Rule 410 of the Federal Rules of Evidence, or any other federal rule that such statements or documents or any leads therefrom should be suppressed. Determination of whether EdR Switzerland has breached this Agreement and whether to pursue prosecution of EdR Switzerland shall be in the Tax Division's sole discretion. The decision whether conduct or statements of any current director, officer or employee, or any person acting on behalf of, or at the direction of, EdR Switzerland, will be imputed to EdR Switzerland for the purpose of determining whether EdR Switzerland has materially violated any provision of this Agreement shall be in the sole discretion of the Tax Division. In the event that the Tax Division determines that EdR Switzerland has breached this Agreement, the Tax Division agrees to provide EdR Switzerland with written notice of such breach prior to instituting any prosecution resulting from such breach. Within thirty (30) days of receipt of such notice, EdR Switzerland may respond to the Tax Division in writing to explain the nature and circumstances of such breach, as well as the actions that EdR Switzerland has taken to address and remediate the situation, which explanation the Tax Division shall consider in determining whether to pursue prosecution of EdR Switzerland. In addition, any prosecution for any offense referred to on page 1 of this Agreement that is not time-barred by the applicable statute of limitations on the date of the announcement of the Swiss Bank Program (August 29, 2013) may be commenced against Edit Switzerland, notwithstanding the expiration of the statute of limitations between such date and the commencement of such prosecution. For any such prosecutions, EdR Switzerland waives any defenses premised upon the expiration of the statute of limitations, as well as any constitutional, statutory, or other claim concerning pre-indictment delay and agrees that such waiver is knowing, voluntary, and in express reliance upon the advice of EdR Switzerland's counsel. It is understood that the terms of this Agreement, do not bind any other federal, state, or local prosecuting authorities other than the Department. If requested by EdR Switzerland, the Tax Division will, however, bring the cooperation of EdR Switzerland to the attention of such other prosecuting offices or regulatory agencies. It is further understood that this Agreement and the Statement of Facts attached hereto may be disclosed to the public by the Department and EdR Switzerland consistent with Part V.B of the Swiss Bank Program. EFTA00590339 - 7 - This Agreement supersedes all prior understandings, promises and/or conditions between the Department and EdR Switzerland. No additional promises, agreements, and conditions have been entered into other than those set forth in this Agreement and none will be entered into unless in writing and signed by both parties. CAROLINE D. CIRAOLO Acting Assistant Attorney General Tax Division THOMAS J. SAWYER Senior Counsel for International Tax Matters Trial Attorney AGREED AND CONSENTED TO: EDMOND DE ROTHSCHILD (SUISSE) SA By: EDMOND DE ROTHSCHILD (LUGANO) SA By: APPROVED: DATE DATE KATHRYN RUEMMLER DATE Latham & Watkins LLP CHRISTOPHER CLARK DATE Latham & Watkins LLP EFTA00590340