Common use of Broker-Dealer Representations Clause in Contracts

Broker-Dealer Representations. (a) Sellers have delivered to Buyer (i) a true, correct and complete copy of the Company’s Uniform Application for Broker-Dealer Registration on Form BD, reflecting all amendments thereto filed with the SEC or FINRA to the date hereof, (ii) true, correct and complete copies of the Uniform Application for Securities Industry Registration or Transfer on Form U-4, as filed on behalf of each current principal and registered representative of the Company, (iii) true, correct and complete copies of any written Business Plan of the Company approved by FINRA, reflecting all amendments thereto, and FINRA has confirmed to BD that the Company does not operate pursuant to any written FINRA Membership Agreement of the Company (CRD No. 6619) (the “Membership Agreement”) and no such Membership Agreement exists and (iv) true, correct and complete copies of all other material registrations, declarations, reports, notices, forms and other documents filed by the Company with the SEC, FINRA, State securities authorities, or any other Governmental Authority, including FOCUS reports and annual statements of financial condition, and all amendments or supplements to any of the foregoing (together with the documents identified in items (i) through (iii), the “BD Regulatory Filings”), since January 1, 2013. Schedule 3.18(a) sets forth a complete list of the identities of each principal and registered representative of the Company, their series licenses, and all BD Regulatory Filings filed since January 1, 2013. The Company has timely filed all BD Regulatory Filings and such filings are, to the extent applicable, in full force and effect and were prepared in all material respects in compliance with applicable Law, including the requirements of the Exchange Act, FINRA rules (“FINRA Rules”) and State Securities Laws, and all material fees and assessments due and payable in connection with the filing of such BD Regulatory Filings have been paid in a timely manner. The documents identified in items (i) and (iii) in the definition of BD Regulatory Filings and, to the Knowledge of any Seller, the documents identified in items (ii) of the definition of BD Regulatory Filings, do not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. Each principal and registered representative of the Company has at least the minimum series license(s) and experience for the activities which such principal or registered representative performs on behalf of the Company. (b) The “net capital” (as defined in Rule 15c3-1 under the Exchange Act) of the Company satisfies, and since at least January 1, 2004, has satisfied, the minimum net capital requirements of the Exchange Act and of the applicable Laws of any jurisdiction in which the Company conducts business, and has been sufficient to permit the Company to operate in accordance with its business activities as authorized by FINRA. The Company is not party to, or bound by, the terms of any restriction agreement with FINRA due to the occurrence of a reportable event. (c) The Company is and has been, since the commencement of its engagement in activities for which registration as a broker-dealer is or was required under the Exchange Act (such activities are defined as “Broker-Dealer Activities”), duly registered as a broker-dealer under the Exchange Act and applicable FINRA Rules. The Company is duly registered, licensed and qualified as a broker-dealer in all jurisdictions where such registration, licensing or qualification is so required. The Company is in compliance in all material respects with all federal laws requiring registration, licensing or qualification as a broker-dealer with the SEC and is in material compliance with all other applicable Law requiring registration, licensing or qualification as a broker-dealer. The Company is a member, in good standing, of FINRA and The NASDAQ Stock Market LLC, and an Equity Trading Permit Holder, in good standing, with NYSE Arca, Inc. (d) Except as set forth on Schedule 3.18(d), there is no governmental or administrative proceeding, investigation, examination, subpoena, audit, sweep letter or other material inquiry, whether written or oral (including by the SEC, FINRA, the Department of Labor or any other Governmental Authority) pending or threatened in writing against the Company or, to the Knowledge of any Seller, against any officer, security holder, employee or associated person (as such term is defined in the Exchange Act) of the Company. Schedule 3.18(d) lists all SEC, FINRA, or other Governmental Authority examinations or litigation, proceedings, settlements, investigations, subpoenas, audits, sweep letters or other material inquiries occurring, arising, or existing during the past three years that (i) were directed to the Company, or any of its officers, security holders, employees or associated persons, or (ii) involved the Company, or any of its officers, security holders, employees or associated persons, as a party. (e) The Company has implemented policies and procedures that are reasonably designed to comply with all applicable Law, including any applicable Anti‑Money Laundering Law or any applicable Law relating to advertising, licensing, sales practices, research, information barriers, market conduct, maintenance of net capital, supervision, books and records, risk assessment and continuing education and the rules of the SEC and any other Governmental Authority having jurisdiction over the Company. (f) Except as described in Schedule 3.18(d), the Company is not subject to any cease-and-desist or other order or enforcement action issued by, or a party to any written agreement, consent agreement or memorandum of understanding with, or a party to any commitment letter or similar undertaking to, or subject to any order or directive by, or has been ordered to pay any civil penalty by, or a recipient of any letter of admonition or similar communication from, or has adopted a board resolution at the request or suggestion of, any Governmental Authority that restricts the conduct of its business. (g) Set forth on Schedule 3.18(g) is each “branch office” and “office of supervisory jurisdiction” (as defined under FINRA Rules) of the Company. (h) Except as disclosed in the Form BD of the Company in effect as of the date of this Agreement, none of the Company or its officers, employees, or associated persons has received any written notification or written communication from any Governmental Authority (i) asserting that such Person is not in compliance with any applicable Law or is subject to any active regulatory enforcement action, (ii) threatening to revoke any Permit, (iii) requiring such Person to enter into a cease and desist order, agreement or memorandum of understanding materially restricting the activities of such Person, (iv) materially restricting or disqualifying such Person’s present business activities (other than restrictions imposed by rule, regulation or administrative policy on brokers or dealers generally) or (v) threatening to initiate any proceeding or investigation into the business or operations of such Person; provided, that routine regulatory investigations and examinations and customer complaints, claims or arbitration shall not be construed as or deemed to be any investigation, notification, communication, review or disciplinary proceedings for the purposes of this Section 3.18. Since January 1, 2013, the Company has responded to all material deficiencies asserted by any Governmental Authority in connection with any regulatory examination or other similar proceeding and, where required by such response or by such Governmental Authority to take any action to address any such deficiency, has taken any such action that was required to be taken prior to the date hereof. Any such action that has not yet been taken as of the date hereof because the deadline for such action has not passed, as well as the deadline for such action, is set forth on Schedule 3.18(d). (i) All officers, employees, associated persons and independent contractors of the Company who are, or who at any time during the past three years were, required, under applicable Law, to be registered, licensed or qualified in connection with the Broker-Dealer Activities engaged in by the Company, are or were, at all such times, duly registered as such and such registrations are or were, at all such times, in full force and effect, or are or were, at all such times, in the process of being registered as such within the time periods required by any Governmental Authority, as applicable. All officers, employees, associated persons and independent contractors of the Company are in compliance in all material respects with all applicable Law requiring any such registration, licensing or qualification, and, to the Knowledge of any Seller, are not subject to any material liability or disability by reason of any failure to be so registered.

Broker-Dealer Representations. (a) Sellers have Seller has delivered to Buyer (i) a true, correct and complete copy of the Company’s Uniform Application for Broker-Dealer Registration on Form BD, reflecting all amendments thereto filed with the SEC or FINRA to the date hereof, (ii) true, correct and complete copies of the Uniform Application for Securities Industry Registration or Transfer on Form U-4, as filed on behalf of each current principal and registered representative of the Company, (iii) true, correct and complete copies of any written Business Plan of the Company approved by FINRA, reflecting all amendments thereto, and FINRA has confirmed to BD that the Company does not operate pursuant to any written FINRA Membership Agreement of the Company (CRD No. 6619) (the “Membership Agreement”) and no such Membership Agreement exists and (iv) true, correct and complete copies of all other material registrations, declarations, reports, notices, forms and other documents filed by the Company with the SEC, FINRA, State securities authorities, or any other Governmental Authority, including FOCUS reports and annual statements of financial condition, and all amendments or supplements to any of the foregoing (together with the documents identified in items (i) through (iii), the “BD Regulatory Filings”), since January 1, 2013. Schedule 3.18(a) sets forth a complete list of the identities of each principal and registered representative of the Company, their series licenses, and all BD Regulatory Filings filed since January 1, 2013. The Company has timely filed all BD Regulatory Filings and such filings are, to the extent applicable, in full force and effect and were prepared in all material respects in compliance with applicable Law, including the requirements of the Exchange Act, FINRA rules (“FINRA Rules”) and State Securities Laws, and all material fees and assessments due and payable in connection with the filing of such BD Regulatory Filings have been paid in a timely manner. The documents identified in items (i) and (iii) in the definition of BD Regulatory Filings and, to the Knowledge of any Seller, the documents identified in items (ii) of the definition of BD Regulatory Filings, do not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. Each principal and registered representative of the Company has at least the minimum series license(s) and experience for the activities which such principal or registered representative performs on behalf of the Company. (b) The “net capital” (as defined in Rule 15c3-1 under the Exchange Act) of the Company satisfies, and since at least January 1, 2004, has satisfied, the minimum net capital requirements of the Exchange Act and of the applicable Laws of any jurisdiction in which the Company conducts business, and has been sufficient to permit the Company to operate in accordance with its business activities as authorized by FINRA. The Company is not party to, or bound by, the terms of any restriction agreement with FINRA due to the occurrence of a reportable event. (c) The Company is and has been, since the commencement of its engagement in activities for which registration as a broker-dealer is or was required under the Exchange Act (such activities are defined as “Broker-Dealer Activities”), duly registered as a broker-dealer under the Exchange Act and applicable FINRA Rules. The Company is duly registered, licensed and qualified as a broker-dealer in all jurisdictions where such registration, licensing or qualification is so required. The Company is in compliance in all material respects with all federal laws requiring registration, licensing or qualification as a broker-dealer with the SEC and is in material compliance with all other applicable Law requiring registration, licensing or qualification as a broker-dealer. The Company is a member, in good standing, of FINRA and The NASDAQ Stock Market LLC, and an Equity Trading Permit Holder, in good standing, with NYSE Arca, Inc. (d) Except as set forth on Schedule 3.18(d), there is no governmental or administrative proceeding, investigation, examination, subpoena, audit, sweep letter or other material inquiry, whether written or oral (including by the SEC, FINRA, the Department of Labor or any other Governmental Authority) pending or threatened in writing against the Company or, to the Knowledge of any Seller, against any officer, security holder, employee or associated person (as such term is defined in the Exchange Act) of the Company. Schedule 3.18(d) lists all SEC, FINRA, or other Governmental Authority examinations or litigation, proceedings, settlements, investigations, subpoenas, audits, sweep letters or other material inquiries occurring, arising, or existing during the past three years that (i) were directed to the Company, or any of its officers, security holders, employees or associated persons, or (ii) involved the Company, or any of its officers, security holders, employees or associated persons, as a party. (e) The Company has implemented policies and procedures that are reasonably designed to comply with all applicable Law, including any applicable Anti‑Money Laundering Law or any applicable Law relating to advertising, licensing, sales practices, research, information barriers, market conduct, maintenance of net capital, supervision, books and records, risk assessment and continuing education and the rules of the SEC and any other Governmental Authority having jurisdiction over the Company. (f) Except as described in Schedule 3.18(d), the Company is not subject to any cease-and-desist or other order or enforcement action issued by, or a party to any written agreement, consent agreement or memorandum of understanding with, or a party to any commitment letter or similar undertaking to, or subject to any order or directive by, or has been ordered to pay any civil penalty by, or a recipient of any letter of admonition or similar communication from, or has adopted a board resolution at the request or suggestion of, any Governmental Authority that restricts the conduct of its business. (g) Set forth on Schedule 3.18(g) is each “branch office” and “office of supervisory jurisdiction” (as defined under FINRA Rules) of the Company. (h) Except as disclosed in the Form BD of the Company in effect as of the date of this Agreement, none of the Company or its officers, employees, or associated persons has received any written notification or written communication from any Governmental Authority (i) asserting that such Person is not in compliance with any applicable Law or is subject to any active regulatory enforcement action, (ii) threatening to revoke any Permit, (iii) requiring such Person to enter into a cease and desist order, agreement or memorandum of understanding materially restricting the activities of such Person, (iv) materially restricting or disqualifying such Person’s present business activities (other than restrictions imposed by rule, regulation or administrative policy on brokers or dealers generally) or (v) threatening to initiate any proceeding or investigation into the business or operations of such Person; provided, that routine regulatory investigations and examinations and customer complaints, claims or arbitration shall not be construed as or deemed to be any investigation, notification, communication, review or disciplinary proceedings for the purposes of this Section 3.18. Since January 1, 2013, the Company has responded to all material deficiencies asserted by any Governmental Authority in connection with any regulatory examination or other similar proceeding and, where required by such response or by such Governmental Authority to take any action to address any such deficiency, has taken any such action that was required to be taken prior to the date hereof. Any such action that has not yet been taken as of the date hereof because the deadline for such action has not passed, as well as the deadline for such action, is set forth on Schedule 3.18(d). (i) All officers, employees, associated persons and independent contractors of the Company who are, or who at any time during the past three years were, required, under applicable Law, to be registered, licensed or qualified in connection with the Broker-Dealer Activities engaged in by the Company, are or were, at all such times, duly registered as such and such registrations are or were, at all such times, in full force and effect, or are or were, at all such times, in the process of being registered as such within the time periods required by any Governmental Authority, as applicable. All officers, employees, associated persons and independent contractors of the Company are in compliance in all material respects with all applicable Law requiring any such registration, licensing or qualification, and, to the Knowledge of any Seller, are not subject to any material liability or disability by reason of any failure to be so registered.

Broker-Dealer Representations. (a) Sellers have delivered to Buyer (i) a true, correct and complete copy of the Company’s Uniform Application for Broker-Dealer Registration on Form BD, reflecting all amendments thereto filed with the SEC or FINRA to the date hereof, (ii) true, correct and complete copies of the Uniform Application for Securities Industry Registration or Transfer on Form U-4, as filed on behalf of each current principal and registered representative of the Company, (iii) true, correct and complete copies of any written Business Plan of the Company approved by FINRA, reflecting all amendments thereto, and FINRA has confirmed to BD that the Company does not operate pursuant to any written FINRA Membership Agreement of the Company (CRD No. 6619) (the “Membership Agreement”) and no such Membership Agreement exists and (iv) true, correct and complete copies of all other material registrations, declarations, reports, notices, forms and other documents filed by the Company with the SEC, FINRA, State securities authorities, or any other Governmental Authority, including FOCUS reports and annual statements of financial condition, and all amendments or supplements to any of the foregoing (together with the documents identified in items (i) through (iii), the “BD Regulatory Filings”), since January 1, 2013. Schedule 3.18(a) sets forth a complete list of the identities of each principal and registered representative of the Company, their series licenses, and all BD Regulatory Filings filed since January 1, 2013. The Company has timely filed all BD Regulatory Filings and such filings are, to the extent applicable, in full force and effect and were prepared in all material respects in compliance with applicable Law, including the requirements of the Exchange Act, FINRA rules (“FINRA Rules”) and State Securities Laws, and all material fees and assessments due and payable in connection with the filing of such BD Regulatory Filings have been paid in a timely manner. The documents identified in items (i) and (iii) in the definition of BD Regulatory Filings and, to the Knowledge of any Seller, the documents identified in items (ii) of the definition of BD Regulatory Filings, do not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. Each principal and registered representative of the Company 9 has at least the minimum series license(s) and experience for the activities which such principal or registered representative performs on behalf of the Company. (b) The “net capital” (as defined in Rule 15c3-1 under the Exchange Act) of the Company satisfies, and since at least January 1, 2004, has satisfied, the minimum net capital requirements of the Exchange Act and of the applicable Laws of any jurisdiction in which the Company conducts business, and has been sufficient to permit the Company to operate in accordance with its business activities as authorized by FINRA. The Company is not party to, or bound by, the terms of any restriction agreement with FINRA due to the occurrence of a reportable event. (c) The Company is and has been, since the commencement of its engagement in activities for which registration as a broker-dealer is or was required under the Exchange Act (such activities are defined as “Broker-Dealer Activities”), duly registered as a broker-dealer under the Exchange Act and applicable FINRA Rules. The Company is duly registered, licensed and qualified as a broker-dealer in all jurisdictions where such registration, licensing or qualification is so required. The Company is in compliance in all material respects with all federal laws requiring registration, licensing or qualification as a broker-dealer with the SEC and is in material compliance with all other applicable Law requiring registration, licensing or qualification as a broker-dealer. The Company is a member, in good standing, of FINRA and The NASDAQ Stock Market LLC, and an Equity Trading Permit Holder, in good standing, with NYSE Arca, Inc. Inc. (d) Except as set forth on Schedule 3.18(d), there is no governmental or administrative proceeding, investigation, examination, subpoena, audit, sweep letter or other material inquiry, whether written or oral (including by the SEC, FINRA, the Department of Labor or any other Governmental Authority) pending or threatened in writing against the Company or, to the Knowledge of any Seller, against any officer, security holder, employee or associated person (as such term is defined in the Exchange Act) of the Company. Schedule 3.18(d) lists all SEC, FINRA, or other Governmental Authority examinations or litigation, proceedings, settlements, investigations, subpoenas, audits, sweep letters or other material inquiries occurring, arising, or existing during the past three years that (i) were directed to the Company, or any of its officers, security holders, employees or associated persons, or (ii) involved the Company, or any of its officers, security holders, employees or associated persons, as a party. (e) The Company has implemented policies and procedures that are reasonably designed to comply with all applicable Law, including any applicable Anti‑Money Laundering Law or any applicable Law relating to advertising, licensing, sales practices, research, information barriers, market conduct, maintenance of net capital, supervision, books and records, risk assessment and continuing education and the rules of the SEC and any other Governmental Authority having jurisdiction over the Company. (f) Except as described in Schedule 3.18(d), the Company is not subject to any cease-and-desist or other order or enforcement action issued by, or a party to any written agreement, consent agreement or memorandum of understanding with, or a party to any 10 commitment letter or similar undertaking to, or subject to any order or directive by, or has been ordered to pay any civil penalty by, or a recipient of any letter of admonition or similar communication from, or has adopted a board resolution at the request or suggestion of, any Governmental Authority that restricts the conduct of its business. . (g) Set forth on Schedule 3.18(g) is each “branch office” and “office of supervisory jurisdiction” (as defined under FINRA Rules) of the Company. (h) Except as disclosed in the Form BD of the Company in effect as of the date of this Agreement, none of the Company or its officers, employees, or associated persons has received any written notification or written communication from any Governmental Authority (i) asserting that such Person is not in compliance with any applicable Law or is subject to any active regulatory enforcement action, (ii) threatening to revoke any Permit, (iii) requiring such Person to enter into a cease and desist order, agreement or memorandum of understanding materially restricting the activities of such Person, (iv) materially restricting or disqualifying such Person’s present business activities (other than restrictions imposed by rule, regulation or administrative policy on brokers or dealers generally) or (v) threatening to initiate any proceeding or investigation into the business or operations of such Person; provided, that routine regulatory investigations and examinations and customer complaints, claims or arbitration shall not be construed as or deemed to be any investigation, notification, communication, review or disciplinary proceedings for the purposes of this Section 3.18. Since January 1, 2013, the Company has responded to all material deficiencies asserted by any Governmental Authority in connection with any regulatory examination or other similar proceeding and, where required by such response or by such Governmental Authority to take any action to address any such deficiency, has taken any such action that was required to be taken prior to the date hereof. Any such action that has not yet been taken as of the date hereof because the deadline for such action has not passed, as well as the deadline for such action, is set forth on Schedule 3.18(d). (i) All officers, employees, associated persons and independent contractors of the Company who are, or who at any time during the past three years were, required, under applicable Law, to be registered, licensed or qualified in connection with the Broker-Dealer Activities engaged in by the Company, are or were, at all such times, duly registered as such and such registrations are or were, at all such times, in full force and effect, or are or were, at all such times, in the process of being registered as such within the time periods required by any Governmental Authority, as applicable. All officers, employees, associated persons and independent contractors of the Company are in compliance in all material respects with all applicable Law requiring any such registration, licensing or qualification, and, to the Knowledge of any Seller, are not subject to any material liability or disability by reason of any failure to be so registered.