As you are no doubt aware, the United States Treasury has decided to forgo its initial plan to buy troubled assets from financial institutions, and intends instead to use the funds made available under the Troubled Asset Relief Program (TARP) to inject capital directly into banks.  As of the date of this memorandum, over 80 publicly traded financial institutions[1] have announced their intent to participate in the Treasury’s Capital Purchase Program, accounting for almost $250 billion in investments by the Treasury.

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[1] Although the term "publicly traded" was not defined in the Emergency Economic Stabilization Act of 2008 or in the Capital Purchase Program materials initially released by the Treasury for publicly traded institutions, the Treasury issued a term sheet on November 17, 2008 for the privately-held financial institutions Capital Purchase Program which defined the term as "a company (1) whose securities are traded on a national securities exchange and (2) required to file, under the federal securities laws, periodic reports such as the annual (Form 10-K) and quarterly (Form 10-Q) reports with either the Securities and Exchange Commission or its primary federal bank regulator. A company may be required to do so by virtue of having securities registered under Section 12 of the Securities Exchange Act of 1934, as amended, which applies to all companies that are traded on an exchange or that have $10 million in assets and 500 shareholders of record or Section 15(d) of the Exchange Act which requires companies that have filed a registration statement under the Securities Act of 1933, as amended, and have 300 or more securityholders of record of the registered class to file reports required under Section 13 of the Exchange Act, e.g., periodic reports."