Compliance with Law; Government Regulation. (a) Except as otherwise set forth in Schedule 4.13(a), since January 1, 2010, the Company and each Company Fund has in all material respects complied and is in all material respects in compliance with all applicable Laws and Orders. Since January 1, 2010, neither the Company nor any Company Fund has received any notice from any Governmental Authority with competent jurisdiction asserting any violation by the Company or such Company Fund of any applicable Law. (b) The Company is registered as an “investment adviser” under the Advisers Act and has been registered at all times required by the Advisers Act. The Company has Made Available to Buyer prior to the date of this Agreement a true and correct copy of the Form ADV (Part 1 and Part 2) of the Company in effect on the date of this Agreement. The Company is and at all times required by applicable Law (other than the Advisers Act) has been registered, licensed or qualified as an investment advisor in each jurisdiction where the conduct of its business required such registration, license or qualification. Schedule 4.13(b) contains a true and correct list of the Company’s current registrations, licenses and qualifications. (c) The Company and each Company Fund holds, and is in material compliance with all requirements under, all licenses, registrations, consents, franchises, permits, orders, warrants, confirmations, permissions, certificates, approvals and authorizations (collectively, “Permits”) that are required in order to permit the Company or Company Fund to own or lease its properties and assets and to conduct the Business as presently conducted under and pursuant to all applicable Laws. All such Permits are listed on Schedule 4.13(c). All such Permits are in full force and effect and are not subject to any suspension, cancellation, modification or revocation or any Proceedings related thereto, and, to the Knowledge of the Company, no such suspension, cancellation, modification or revocation or Proceeding is threatened. The consummation of the Transactions, in and of itself and assuming receipt of all Consents contemplated in this Agreement, would not cause the revocation, modification or cancellation of, or violation under, any Permit. Each employee of the Company who is required to be registered or licensed as a registered representative, investment adviser representative, sales person or an equivalent person with any Governmental Authority with respect to the operation of the Company is duly registered or licensed as such and such registration is in full force and effect. (d) Except as otherwise set forth in Schedule 4.13(d), the Company is not, and has not been (i) a bank, trust company, broker-dealer, commodity broker-dealer, commodity pool operator, commodity trading advisor, real estate broker, insurance company, insurance broker or transfer agent within the meaning of any applicable Law, (ii) required to be registered, licensed or qualified as a bank, trust company, broker-dealer, commodity broker-dealer, commodity pool operator, commodity trading advisor, real estate broker, insurance company, insurance broker or transfer agent under any applicable Law or (iii) subject to any liability or disability by reason of any failure to be so registered, licensed or qualified. The Company has not received any notice of any Proceeding concerning any failure to obtain any bank, trust company, broker-dealer, commodity broker-dealer, commodity pool operator, commodity trading advisor, real estate broker, insurance company, insurance broker or transfer agent registration, license or qualification. (e) Neither the Company nor any “affiliated person” (as defined in the Advisers Act) of the Company is ineligible pursuant to Section 203 of the Advisers Act to serve as a registered investment adviser or “associated person” (as defined in the Advisers Act) of a registered investment adviser, nor is there any Proceeding pending or, to the Knowledge of the Company, threatened by any Governmental Authority which would result in the ineligibility of the Company or any “affiliated person” to serve in any such capacities. (f) Neither the Company nor any Company Fund nor, to the Knowledge of the Company, any employee, officer, director, partner or member of any of them, is, or at any time since January 1, 2010 has been, (i) subject to any cease and desist, censure or other disciplinary or similar order issued by, (ii) a party to any consent agreement, memorandum of understanding or disciplinary agreement with, (iii) a party to any commitment letter or similar undertaking to, (iv) subject to any order or directive by or (v) a recipient of any supervisory letter from, in each case, any Governmental Authority, and, to the Knowledge of the Company, none of them is threatened with the imposition or receipt of any of the foregoing. (g) No exemptive orders, “no-action” letters or similar exemptions or regulatory relief have been obtained, nor are any requests pending therefor, by or with respect to the Company or, to the Knowledge of the Company, any Company Fund, or any officer, director, partner or employee of any of them, in connection with its business. (h) To the extent required by applicable Law, the Company has, since the later of (i) January 1, 2010 or (ii) its inception, implemented one or more formal codes of ethics, xxxxxxx xxxxxxx policies, personal trading policies, compliance manual and other policies required by applicable Law. Such codes of ethics and policies comply with applicable Law in all material respects. To the Knowledge of the Company, there have been no violations since January 1, 2010 of the code of ethics, xxxxxxx xxxxxxx policies, personal trading policies, compliance manual and other policies required by applicable Law of the Company. (i) Since January 1, 2010, the Company has complied with all applicable Laws regarding privacy of Clients and other Persons in all material respects and has established policies and procedures in this regard reasonably designed to ensure compliance with applicable Law. (j) The Company and each Company Fund has adopted “know your customer” and anti-money laundering programs and reporting procedures, and procedures for detecting and identifying money laundering, and in each case, have complied in all material respects with the terms of such programs and procedures. Prior to the acceptance of any subscription agreement from any investor in any Company Fund, the Company has confirmed that such investor is not identified on the U.S. Department of Treasury Office of Foreign Control (“OFAC”) list of Specially Designated Nationals and Blocked Persons (the “SDN List”) or otherwise subject to sanctions administered by OFAC or owned or controlled by or acting on behalf of any Person listed on the SDN List. Neither the Company nor any of the Company Funds has been subject to any enforcement or supervisory action by any Governmental Authority because such procedures were considered to be inadequate by such regulator. (k) Since January 1, 2010, neither the Sellers nor the Company and, to the Knowledge of the Company, none of the employees, officers, directors, partners or members or other Persons acting on behalf of the Company: (i) has, since January 1, 2010, been indicted for or convicted of any felony or any crime involving fraud, misrepresentation or xxxxxxx xxxxxxx, (ii) is subject to any outstanding Order barring, suspending or otherwise materially limiting the right of such Person to engage in any activity conducted as part of the Business, (iii) to the Knowledge of the Company, is the subject of any on-going investigation by any Governmental Authority materially affecting such Person’s ability to conduct any activity conducted as part of the Business, or (iv) has since January 1, 2010, been denied any Permit materially affecting such Person’s ability to conduct any activity conducted as part of the Business. (l) Without limiting the generality of the preceding paragraph (k), the Company (including any of its officers, directors, agents, employees or other persons associated with or acting on its behalf) has not, directly or indirectly, taken any action that would cause it to be in violation of the UK Anti-Bribery Act, as amended, any other similar anti-bribery or anti-corruption Law, or any rule or regulation promulgated under any of the foregoing, or Rule 206(4)-5 under the Advisers Act including by offering or conveying, directly or indirectly (such as through an agent), anything of value to obtain or retain business or to obtain any improper advantage, including any bribe, rebate, payoff, influence payment, kickback or other similar unlawful payment to a foreign government official, candidate for office, state or local government official, or political party or official of a political party. (m) The Company has not, and, to the Knowledge of the Company, no employee, officer, director, partner or member of the Company has, taken any action which would cause it to be in violation of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder. There is not now, and there has never been, any employment by the Company of, or any beneficial ownership in the Company by, any governmental or political official in any country in the world. Neither the Company nor, to the Knowledge of the Company, any employee, officer, director, partner or member or Affiliate of the Company, has within the past five (5) years (i) made, offered to make or promised to make any payments of money or other thing of value to any governmental or political official, (ii) been party to the establishment or maintenance of any unlawful or unrecorded fund of monies or other assets or (iii) been party to the making of any false or fictitious entries in the books or records of the Company or any Company Fund. 18 (n) To the Knowledge of the Company, no intermediary, placement agent, distributor or solicitor has unlawfully marketed any of the services of the Company or unlawfully marketed or sold any interest in any Company Fund, and as of the date hereof there are no outstanding claims against the Company with respect to such marketing or sale. (o) The Company’s representations to PriceWaterhouseCoopers made in its letter to PriceWaterhouseCoopers, dated March 17, 2015, in respect of FOC Capital I Fund and FOC Secured Value Fund, were true and accurate when made and would be true and accurate as of the date hereof and as of the Closing Date. (p) As of, and at all times since, December 31, 2014, there has been no fraud, whether or not material, involving management or other employees who had a significant role in the Company’s or any Company Fund’s financial reporting.
Appears in 1 contract
Samples: Purchase Agreement
Compliance with Law; Government Regulation. (a) Except as otherwise set forth in Schedule 4.13(a3.14(a), since January 1, 20102021, the Company has complied and each Company Fund has is in compliance in all material respects complied and is in all material respects in compliance with all applicable Laws and OrdersLaws. Since January 1, 20102021, neither the Company nor any Company Fund has not received any oral or written notice from any Governmental Authority with competent jurisdiction asserting any violation by the Company or such Company Fund of any applicable Law.
(b) The Company holds, and is in compliance in all material respects with all requirements under Permits that are required in order to permit the Company to own or lease its properties and assets and to conduct the Business as presently conducted under and pursuant to all applicable Laws. All such Permits held by the Company are listed in Schedule 3.14(b) and are in full force and effect and are not subject to any terms and conditions, suspension, cancellation, modification or revocation or any Proceedings related thereto, and, to the Knowledge of the Company, no such terms and conditions, suspension, cancellation, modification or revocation or Proceeding is reasonably likely or threatened. The consummation of the Transactions will not cause the imposition of any terms and conditions on, the revocation, modification or cancellation of, or violation under, any such Permit. To the extent required to be registered or licensed by any Governmental Authority, the Company and each member, partner, shareholder, manager, director, officer, employee or consultant of the Company (i) is duly registered or licensed as a registered representative, investment adviser representative, salesperson or an equivalent Person and such registration and/or license is in full force and effect and (ii) has obtained all material legal, regulatory and professional licenses, registrations and Permits necessary under applicable Law to perform its duties and obligations to the Company.
(c) The Company is registered as an “investment adviser” under the Advisers Act and has been registered at all times required by the Advisers Act. The Company has Made Available made available to Buyer Purchaser prior to the date of this Agreement a true and correct copy of the Form ADV (Part 1 1, Part 2 and Part 23) of the Company in effect on the date of this Agreement. As of the date of each filing, amendment or delivery to Clients, each part of each such Form ADV was materially accurate and correct and complied in all material respects with the Advisers Act. The Company is and at all times as required by applicable Law (other than the Advisers Act) has been registered,
(d) Since January 1, licensed 2021, all registrations (including Form ADV and such notice filings as may be required by the laws of any state), reports, prospectuses, financial statements, sales literature, statements, notices and other filings required to be filed with any Governmental Authority, including all amendments or qualified as an investment advisor in each jurisdiction where the conduct of its business required such registration, license or qualification. Schedule 4.13(b) contains a true and correct list supplements to any of the Company’s current above required to be filed by the Company (such registrations, licenses reports, prospectuses, financial statements, sales literature, statements, notices and qualifications.
(cfilings and any amendments and supplements thereto, collectively, the “Filings”) The Company and each Company Fund holds, and is have been filed in material compliance with all requirements under, all licenses, registrations, consents, franchises, permits, orders, warrants, confirmations, permissions, certificates, approvals and authorizations (collectively, “Permits”) that are applicable Laws. Such Filings did not at the time they were filed contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to permit make the statements therein, in the light of the circumstances under which they were or are made, not misleading. Prior to the date hereof, Seller has delivered to the Purchaser true and complete copies of all (i) audit or inspection reports received by any Company Entity from any Governmental Authority and all material written responses thereto made by any Company Entity since January 1, 2021, (ii) material correspondence relating to any examination or investigation received by the Company or from any Governmental Authority and all material written responses thereto made by any Company Fund to own or lease its properties Entity, in each case, since January 1, 2021, and assets and to conduct (iii) without limitation of the Business as presently conducted under and pursuant to foregoing clause, all applicable Lawsdeficiency letters (other than immaterial communications from a Governmental Authority other than the SEC) that the Company has received from any Governmental Authority. All remedial actions believed by the Company to be necessary to cure in all material respects the deficiencies or violations set forth in such Permits are listed on Schedule 4.13(c). All such Permits are in full force and effect and are not subject to any suspension, cancellation, modification or revocation or any Proceedings related thereto, anddeficiency letters have been taken by the Company.
(e) No Governmental Authority has initiated or, to the Knowledge of the Company, no such suspension, cancellation, modification or revocation or threatened to initiate any Proceeding is threatened. The consummation of the Transactions, in and of itself and assuming receipt of all Consents contemplated in this Agreement, would not cause the revocation, modification or cancellation of, or violation under, any Permit. Each employee of the Company who is required to be registered or licensed as a registered representative, investment adviser representative, sales person or an equivalent person with any Governmental Authority with respect to the operation Business and the Company has not received any notice that remains outstanding or unresolved (i) of any violation or exception by any Governmental Authority in any report or statement by any Governmental Authority relating to any examination of the Company is duly registered Company, (ii) threatening to revoke or licensed as such and such registration is in full force and effectcondition the continuation of any Permit or (iii) restricting or disqualifying their activities.
(df) Except as otherwise set forth in Schedule 4.13(d3.14(f), the Company is not, not and has not been since January 1, 2021 (i) a bank, thrift, bank holding company, trust company, broker-broker- dealer, commodity broker-dealer, commodity pool operator, commodity trading advisor, real estate broker, insurance company, insurance broker or transfer agent within the meaning of any applicable Law, (ii) required to be registered, licensed or qualified as a bank, thrift, bank holding company, trust company, broker-dealer, commodity broker-dealer, commodity pool operator, commodity trading advisor, real estate broker, insurance company, insurance broker or transfer agent under any applicable Law Law, or (iii) subject to any liability or disability by reason of any failure to be so registered, licensed or qualified. The Company has not received any notice of any Proceeding Proceeding, or aware of any basis for any pending Proceeding, concerning any failure to obtain any bank, trust company, broker-dealer, commodity broker-dealer, commodity pool operator, commodity trading advisor, real estate broker, insurance company, insurance broker or transfer agent registration, license or qualification.
(eg) No “advisory affiliate” of the Company has: (i) been subject to an order of the SEC issued under Section 203(f) of the Advisers Act; (ii) been convicted within the previous
(h) Neither the Company nor any “affiliated person” (as defined in the Advisers Act) of the Company is ineligible pursuant to Section 203 of the Advisers Act to serve as a registered investment adviser or “associated person” (as defined in the Advisers Act) of a registered investment adviser, nor is there any Proceeding pending or, to the Knowledge of the Company, threatened by any Governmental Authority which would result in the ineligibility of the Company or any “affiliated person” to serve in any such capacities.
(f) Neither the Company nor any Company Fund nor, to the Knowledge of the Company, any employee, officer, consultant, director, manager, partner or member of any of them, is, or at any time since January 1, 2010 has been2021, was (i) subject to any cease and desist, censure or other disciplinary or similar order issued by, (ii) a party to any settlement agreement, consent agreement, memorandum of understanding or disciplinary agreement with, (iii) a party to any commitment letter or similar undertaking to, (iv) subject to any order or directive by or (v) a recipient of any supervisory letter or correspondence regarding any deficiency, enforcement or similar matter from, in each case, any Governmental Authority, and, to the Knowledge of the Company, none of them is threatened with the imposition or receipt of any of the foregoing.
(gi) No exemptive orders, “no-action” letters or similar exemptions or regulatory relief have been obtained, nor are any requests pending therefor, by or with respect to the Company or, to the Knowledge of (i) the Company, (ii) any Company Fundmember, or any officerpartner, shareholder, manager, director, partner officer, employee or employee consultant of any of them, the Company (in connection with its businessthe Business), or (iii) any Client in connection with any Client Contract.
(hj) To the extent required by applicable Law, the Company has, since the later of (i) January 1, 2010 or (ii) its inception2021, implemented one or more formal codes of ethics, xxxxxxx xxxxxxx policies, personal trading policies, compliance manual and other policies required by applicable Law, of which a true and correct copy of each has been made available to Purchaser. Such codes of ethics and policies comply with applicable Law Law. Except as set forth in all material respects. To the Knowledge of the CompanySchedule 3.14(j), there have been no material violations since January 1, 2010 2021 of the code of ethics, xxxxxxx xxxxxxx policies, personal trading policies, compliance manual and other policies required by applicable Law of the Company.
(ik) Since January 1, 2010To the extent required to do so by applicable Laws, the Company has (i) adopted, maintained and complied with all applicable Laws regarding privacy of Clients and other Persons in all material respects and has established policies and procedures in this regard reasonably designed to ensure compliance with applicable Law.
(j) The Company and each Company Fund has adopted adequate “know your customer” and anti-money laundering programs and reporting procedures, policies and procedures for detecting and identifying money laundering, and in each case, have (ii) complied in all material respects with the terms of such programs policies and procedures. Prior to the acceptance of any subscription agreement from any investor in any Company FundClient, the Company has confirmed that such investor Client is not identified on the U.S. Department of Treasury Office of Foreign Control (“OFAC”) list of Specially Designated Nationals and Blocked Persons (the “SDN List”) or otherwise subject to sanctions administered by OFAC or owned or controlled by or acting on behalf of any Person listed on the SDN List. Neither the The Company nor any of the Company Funds has not been subject to any enforcement or supervisory action by any Governmental Authority because such procedures were considered to be inadequate by such regulator.
(k) Since January 1, 2010, neither the Sellers nor the Company and, to the Knowledge of the Company, none of the employees, officers, directors, partners or members or other Persons acting on behalf of the Company: (i) has, since January 1, 2010, been indicted for or convicted of any felony or any crime involving fraud, misrepresentation or xxxxxxx xxxxxxx, (ii) is subject to any outstanding Order barring, suspending or otherwise materially limiting the right of such Person to engage in any activity conducted as part of the Business, (iii) to the Knowledge of the Company, is the subject of any on-going investigation by any Governmental Authority materially affecting such Person’s ability to conduct any activity conducted as part of the Business, or (iv) has since January 1, 2010, been denied any Permit materially affecting such Person’s ability to conduct any activity conducted as part of the Business.
(l) Without limiting the generality of the preceding paragraph (k), the Company (including any of its officers, directors, agents, employees or other persons associated with or acting on its behalf) has not, directly or indirectly, taken any action that would cause it to be in violation of the UK Anti-Bribery Act, as amended, any other similar anti-bribery or anti-corruption Law, or any rule or regulation promulgated under any of the foregoing, or Rule 206(4)-5 under the Advisers Act including by offering or conveying, directly or indirectly (such as through an agent), anything of value to obtain or retain business or to obtain any improper advantage, including any bribe, rebate, payoff, influence payment, kickback or other similar unlawful payment to a foreign government official, candidate for office, state or local government official, or political party or official of a political party.
(m) The Company has not, and, to the Knowledge of the Company, no employee, officer, director, partner or member of the Company has, taken any action which would cause it to be in violation of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder. There is not now, and there has never been, any employment by the Company of, or any beneficial ownership in the Company by, any governmental or political official in any country in the world. Neither the Company nor, to the Knowledge of the Company, any employee, officer, director, partner or member or Affiliate of the Company, has within the past five (5) years (i) made, offered to make or promised to make any payments of money or other thing of value to any governmental or political official, (ii) been party to the establishment or maintenance of any unlawful or unrecorded fund of monies or other assets or (iii) been party to the making of any false or fictitious entries in the books or records of the Company or any Company Fund. 18
(n) To the Knowledge of the Company, no intermediary, placement agent, distributor or solicitor has unlawfully marketed any of the services of the Company or unlawfully marketed or sold any interest in any Company Fund, and as of the date hereof there are no outstanding claims against the Company with respect to such marketing or sale.
(o) The Company’s representations to PriceWaterhouseCoopers made in its letter to PriceWaterhouseCoopers, dated March 17, 2015, in respect of FOC Capital I Fund and FOC Secured Value Fund, were true and accurate when made and would be true and accurate as of the date hereof and as of the Closing Date.
(p) As of, and at all times since, December 31, 2014, there has been no fraud, whether or not material, involving management or other employees who had a significant role in the Company’s or any Company Fund’s financial reporting.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (AlTi Global, Inc.)
Compliance with Law; Government Regulation. (a) Except as otherwise set forth in Schedule 4.13(a3.14(a), since January 1, 20102021, the Company has complied and each Company Fund has is in compliance in all material respects complied and is in all material respects in compliance with all applicable Laws and OrdersLaws. Since January 1, 20102021, neither the Company nor any Company Fund has not received any oral or written notice from any Governmental Authority with competent jurisdiction asserting any violation by the Company or such Company Fund of any applicable Law.
(b) The Company holds, and is in compliance in all material respects with the Permits that are required in order to permit the Company to own or lease its properties and assets and to conduct the Business as presently conducted under and pursuant to all applicable Laws, except where the failure to be in compliance would not be material to the Company. All such Permits held by the Company are listed in Schedule 3.14(b) and are in full force and effect. The consummation of the Transactions will not cause the imposition of any terms and conditions on, the revocation modification or cancellation of, or violation under, any such Permit. To the extent required to be registered or licensed by any Governmental Authority, the Company and each member, partner, shareholder, manager, director, officer, employee or consultant of the Company (i) is duly registered or licensed as a registered representative, investment adviser representative, salesperson or an “investment adviser” equivalent Person and such registration and/or license is in full force and effect and (ii) has obtained all material legal, regulatory and professional licenses, registrations and Permits necessary under applicable Law to perform its duties and obligations to the Advisers Company, except where the failure to be in compliance would not be material to the Company. Each action required for renewal or extension of each Permit has been taken.
(c) The Compan Act and has been registered at all times required by the Advisers Act. The Company has Made Available made available to Buyer Purchaser prior to the date of this Agreement a true and correct copy of the Form ADV (Part 1 1, Part 2 and Part 23) of the Company in effect on the date of this Agreement. As of the date of each filing, amendment or delivery to Clients, each part of each such Form ADV was materially accurate and correct and complied in all material respects with the Advisers Act. The Company is and at all times as required by applicable Law (other than the Advisers Act) has been registered, licensed or qualified as an investment advisor in each jurisdiction where the conduct of its business required such registration, license or qualification, except where the failure would not be material to the Company. Schedule 4.13(b3.14(c) contains a true and correct list of the Company’s such current registrations, licenses and qualifications.
(c) The Company and each Company Fund holds, and is in material compliance with all requirements under, all licenses, registrations, consents, franchises, permits, orders, warrants, confirmations, permissions, certificates, approvals and authorizations (collectively, “Permits”) that are required in order to permit the Company or Company Fund to own or lease its properties and assets and to conduct the Business as presently conducted under and pursuant to all applicable Laws. All such Permits are listed on Schedule 4.13(c). All such Permits are in full force and effect and are not subject to any suspension, cancellation, modification or revocation or any Proceedings related thereto, and, to the Knowledge of the Company, no such suspension, cancellation, modification or revocation or Proceeding is threatened. The consummation of the Transactions, in and of itself and assuming receipt of all Consents contemplated in this Agreement, would not cause the revocation, modification or cancellation of, or violation under, any Permit. Each employee of the Company who is required to be registered or licensed as a registered representative, investment adviser representative, sales person or an equivalent person with any Governmental Authority with respect to the operation of the Company is duly registered or licensed as such and such registration is in full force and effect.
(d) Except as otherwise set forth in Schedule 4.13(d), the Company is not, and has not been (i) a bank, trust company, broker-dealer, commodity broker-dealer, commodity pool operator, commodity trading advisor, real estate broker, insurance company, insurance broker or transfer agent within the meaning of any applicable Law, (ii) required to be registered, licensed or qualified as a bank, trust company, broker-dealer, commodity broker-dealer, commodity pool operator, commodity trading advisor, real estate broker, insurance company, insurance broker or transfer agent under any applicable Law or (iii) subject to any liability or disability by reason of any failure to be so registered, licensed or qualified. The Company has not received any notice of any Proceeding concerning any failure to obtain any bank, trust company, broker-dealer, commodity broker-dealer, commodity pool operator, commodity trading advisor, real estate broker, insurance company, insurance broker or transfer agent registration, license or qualification.
(e) Neither the Company nor any “affiliated person” (as defined in the Advisers Act) of the Company is ineligible pursuant to Section 203 of the Advisers Act to serve as a registered investment adviser or “associated person” (as defined in the Advisers Act) of a registered investment adviser, nor is there any Proceeding pending or, to the Knowledge of the Company, threatened by any Governmental Authority which would result in the ineligibility of the Company or any “affiliated person” to serve in any such capacities.
(f) Neither the Company nor any Company Fund nor, to the Knowledge of the Company, any employee, officer, director, partner or member of any of them, is, or at any time since January 1, 2010 has been, (i) subject to any cease and desist, censure or other disciplinary or similar order issued by, (ii) a party to any consent agreement, memorandum of understanding or disciplinary agreement with, (iii) a party to any commitment letter or similar undertaking to, (iv) subject to any order or directive by or (v) a recipient of any supervisory letter from, in each case, any Governmental Authority, and, to the Knowledge of the Company, none of them is threatened with the imposition or receipt of any of the foregoing.
(g) No exemptive orders, “no-action” letters or similar exemptions or regulatory relief have been obtained, nor are any requests pending therefor, by or with respect to the Company or, to the Knowledge of the Company, any Company Fund, or any officer, director, partner or employee of any of them, in connection with its business.
(h) To the extent required by applicable Law, the Company has, since the later of (i) January 1, 2010 or (ii) its inception, implemented one or more formal codes of ethics, xxxxxxx xxxxxxx policies, personal trading policies, compliance manual and other policies required by applicable Law. Such codes of ethics and policies comply with applicable Law in all material respects. To the Knowledge of the Company, there have been no violations since January 1, 2010 of the code of ethics, xxxxxxx xxxxxxx policies, personal trading policies, compliance manual and other policies required by applicable Law of the Company.
(i) Since January 1, 2010, the Company has complied with all applicable Laws regarding privacy of Clients and other Persons in all material respects and has established policies and procedures in this regard reasonably designed to ensure compliance with applicable Law.
(j) The Company and each Company Fund has adopted “know your customer” and anti-money laundering programs and reporting procedures, and procedures for detecting and identifying money laundering, and in each case, have complied in all material respects with the terms of such programs and procedures. Prior to the acceptance of any subscription agreement from any investor in any Company Fund, the Company has confirmed that such investor is not identified on the U.S. Department of Treasury Office of Foreign Control (“OFAC”) list of Specially Designated Nationals and Blocked Persons (the “SDN List”) or otherwise subject to sanctions administered by OFAC or owned or controlled by or acting on behalf of any Person listed on the SDN List. Neither the Company nor any of the Company Funds has been subject to any enforcement or supervisory action by any Governmental Authority because such procedures were considered to be inadequate by such regulator.
(k) Since January 1, 2010, neither the Sellers nor the Company and, to the Knowledge of the Company, none of the employees, officers, directors, partners or members or other Persons acting on behalf of the Company: (i) has, since January 1, 2010, been indicted for or convicted of any felony or any crime involving fraud, misrepresentation or xxxxxxx xxxxxxx, (ii) is subject to any outstanding Order barring, suspending or otherwise materially limiting the right of such Person to engage in any activity conducted as part of the Business, (iii) to the Knowledge of the Company, is the subject of any on-going investigation by any Governmental Authority materially affecting such Person’s ability to conduct any activity conducted as part of the Business, or (iv) has since January 1, 2010, been denied any Permit materially affecting such Person’s ability to conduct any activity conducted as part of the Business.
(l) Without limiting the generality of the preceding paragraph (k), the Company (including any of its officers, directors, agents, employees or other persons associated with or acting on its behalf) has not, directly or indirectly, taken any action that would cause it to be in violation of the UK Anti-Bribery Act, as amended, any other similar anti-bribery or anti-corruption Law, or any rule or regulation promulgated under any of the foregoing, or Rule 206(4)-5 under the Advisers Act including by offering or conveying, directly or indirectly (such as through an agent), anything of value to obtain or retain business or to obtain any improper advantage, including any bribe, rebate, payoff, influence payment, kickback or other similar unlawful payment to a foreign government official, candidate for office, state or local government official, or political party or official of a political party.
(m) The Company has not, and, to the Knowledge of the Company, no employee, officer, director, partner or member of the Company has, taken any action which would cause it to be in violation of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder. There is not now, and there has never been, any employment by the Company of, or any beneficial ownership in the Company by, any governmental or political official in any country in the world. Neither the Company nor, to the Knowledge of the Company, any employee, officer, director, partner or member or Affiliate of the Company, has within the past five (5) years (i) made, offered to make or promised to make any payments of money or other thing of value to any governmental or political official, (ii) been party to the establishment or maintenance of any unlawful or unrecorded fund of monies or other assets or (iii) been party to the making of any false or fictitious entries in the books or records of the Company or any Company Fund. 18
(n) To the Knowledge of the Company, no intermediary, placement agent, distributor or solicitor has unlawfully marketed any of the services of the Company or unlawfully marketed or sold any interest in any Company Fund, and as of the date hereof there are no outstanding claims against the Company with respect to such marketing or sale.
(o) The Company’s representations to PriceWaterhouseCoopers made in its letter to PriceWaterhouseCoopers, dated March 17, 2015, in respect of FOC Capital I Fund and FOC Secured Value Fund, were true and accurate when made and would be true and accurate as of the date hereof and as of the Closing Date.
(p) As of, and at all times since, December 31, 2014, there has been no fraud, whether or not material, involving management or other employees who had a significant role in the Company’s or any Company Fund’s financial reporting.,
Appears in 1 contract
Compliance with Law; Government Regulation. (a) Except as otherwise set forth in Schedule 4.13(a), since January 1, 2010the Company’s inception, the Company and each Company Fund has in all material respects complied complied, and is in all material respects in compliance with with, all applicable Laws and OrdersLaws. Since January 1the Company’s inception, 2010the Company has not received any written notice from (and, to the Knowledge of the Company, has not been threatened in writing by) any Governmental Authority asserting any violation by the Company of any applicable Law that would reasonably be expected to have a Material Adverse Effect. Without limiting the generality of the foregoing, neither the Company nor nor, to the Knowledge of the Company, any Company Fund has received any notice correspondence or notices in writing (including a subpoena) from the SEC Division of Enforcement regarding the management of the Company Funds and the activities related to such management and, to the Knowledge of the Company, is not (nor are its activities) a subject in any Governmental Authority with competent jurisdiction asserting any violation pending or threatened action or investigation by the Company SEC or such Company Fund of any applicable Lawother Governmental Authority.
(b) The Company is registered as an “investment adviser” under the Advisers Act and has been registered at all times required by the Advisers Act. The Company has Made Available made available to Buyer prior to the date of this Agreement a true true, correct, and correct complete copy of the Form ADV (Part 1 and Part 2) of the Company in effect on the date of this Agreement. The Company is and at all times required by applicable Law (other than the Advisers Act) has been registered, licensed or qualified as an investment advisor in each jurisdiction where the conduct of its business required such registration, license or qualificationqualification except as set forth on Schedule 4.13(b) or where the failure to be so registered, licensed or qualified would not reasonably be expected to be material to the Company. Schedule 4.13(b) contains a true true, correct, and correct complete list in all material respects of the Company’s such current registrations, licenses and qualifications.
(c) The Company and each Company Fund holds, and is in material compliance with all requirements under, all licenses, registrations, consents, franchises, permits, orders, warrants, confirmations, permissions, certificates, approvals and authorizations (collectively, “Permits”) that are required in order to permit the Company or Company Fund to own or lease its properties and assets and to conduct the Business as presently conducted under and pursuant to all applicable Laws, except those the failure to hold or comply with would not reasonably be expected to be material to the Company. All such Permits Permits, with respect to the Company or the applicable Company Fund, are listed on Schedule 4.13(c). All such Permits are in full force and effect and are not subject to any suspension, cancellation, modification or revocation or any Proceedings related thereto, and, to the Knowledge of the Company, no such suspension, cancellation, modification or revocation or Proceeding is threatened. The To the Knowledge of the Company, the consummation of the Transactions, in and of itself and assuming receipt of all Consents contemplated in this Agreement, would Transactions will not cause the revocation, modification or cancellation of, or violation under, any Permit. Each employee of the Company who is required to be registered or licensed as a registered representative, investment adviser representative, sales person or an equivalent person with any Governmental Authority with respect to the operation of the Company is duly registered or licensed as such and such registration is in full force and effect.
(d) Except as otherwise set forth in Schedule 4.13(d), the Company is not, and has not been (i) a bank, trust company, broker-dealer, commodity broker-dealer, commodity pool operator, commodity trading advisor, real estate broker, insurance company, insurance broker or transfer agent within the meaning of any applicable Law, (ii) required to be registered, licensed or qualified as a bank, trust company, broker-dealer, commodity broker-dealer, commodity pool operator, commodity trading advisor, real estate broker, insurance company, insurance broker or transfer agent under any applicable Law or (iii) subject to any liability or disability by reason of any failure to be so registered, licensed or qualified. The Company has not received any notice of any Proceeding concerning any failure to obtain any bank, trust company, broker-dealer, commodity broker-dealer, commodity pool operator, commodity trading advisor, real estate broker, insurance company, insurance broker or transfer agent registration, license or qualification.
(e) Neither the Company nor any “affiliated person” (as defined in the Advisers Act) of the Company is ineligible pursuant to Section 203 of the Advisers Act to serve as a registered investment adviser or “associated person” (as defined in the Advisers Act) of a registered investment adviser, nor is there any Proceeding pending or, to the Knowledge of the Company, threatened by any Governmental Authority which would result in the ineligibility of the Company or any “affiliated person” to serve in any such capacities.
(f) Neither Except as set forth on Schedule 4.13(f), none of the Company nor any Company Fund nor, to the Knowledge of the Company, any employee, officerCompany Fund or any manager, director, partner officer or member Employee of any of themthe Company, is, or at any time since January 1, 2010 has been, (i) subject to any cease and desist, censure or other disciplinary or similar order issued by, (ii) a party to any consent agreement, memorandum of understanding or disciplinary agreement with, (iii) a party to any commitment letter or similar undertaking to, (iv) subject to any order or directive by by, or (v) a recipient of any supervisory letter from, in each case, any Governmental Authority, and, to the Knowledge of the Company, none of them is threatened with the imposition or receipt of any of the foregoing.
(g) No Except as set forth on Schedule 4.13(g), no exemptive orders, “no-action” letters or similar exemptions or regulatory relief have been obtained, nor are any requests pending therefor, by or with respect to the Company Company, or, to the Knowledge of the Company, any Company Fund, Fund or any officermanager, director, partner officer or employee Employee of any of them, the Company in connection with its businessthe Business.
(h) To Except as set forth on Schedule 4.13(h), to the extent required by applicable Law, the Company has, since the later of (i) January 1, 2010 or (ii) its Company’s inception, implemented one or more formal codes of ethics, xxxxxxx xxxxxxx policies, personal trading policies, compliance manual and other policies required by applicable Law. Such codes of ethics and policies comply with applicable Law in all material respects. To the Knowledge of the Company, since the Company’s inception there have been no violations since January 1, 2010 of the Company’s code of ethics, xxxxxxx xxxxxxx policies, personal trading policies, compliance manual and other policies required by applicable Law of the CompanyLaw.
(i) Since January 1, 2010the Company’s inception, the Company has complied with all applicable Laws regarding privacy of Clients clients and other Persons in all material respects and has established policies and procedures in this regard reasonably designed to ensure compliance with applicable Law.
(j) The To the extent required by Law or by contract, the Company and each Company Fund has adopted “know your customer” and anti-money laundering programs and reporting procedures, and procedures for detecting and identifying money laundering, and in each case, have complied in all material respects with the terms of such programs and procedures. Prior to the acceptance of any subscription agreement from any investor in any Company Fund, the Company has confirmed that such investor is not identified on the U.S. Department of Treasury Office of Foreign Control (“OFAC”) list of Specially Designated Nationals and Blocked Persons (the “SDN List”) or otherwise subject to sanctions administered by OFAC or owned or controlled by or acting on behalf of any Person listed on the SDN List. Neither the Company nor any of the Company Funds has been subject to any enforcement or supervisory action by any Governmental Authority because such procedures were considered to be inadequate by such regulator.
(k) Since January 1the Company’s inception, 2010, neither the Sellers nor the Company and, to the Knowledge of the Company, none of the employees, officersmanagers, directors, partners officers or members or other Persons acting on behalf Employees of the Company: (i) has, since January 1, 2010, has been indicted for or convicted of any felony or any crime involving fraud, misrepresentation or xxxxxxx xxxxxxx, (ii) is subject to any outstanding Order barring, suspending or otherwise materially limiting the right of such Person to engage in any activity conducted as part of the Business, (iii) to the Knowledge of the Company, is the subject of any on-going investigation by any Governmental Authority materially affecting such Person’s ability to conduct any activity conducted as part of the Business, or (iv) has since January 1, 2010, been denied any Permit materially affecting such Person’s ability to conduct any activity conducted as part of the Business.
(l) Without limiting the generality of the preceding paragraph (k), the Company (including any of its officers, directors, agents, employees or other persons associated with or acting on its behalf) has not, directly or indirectly, taken any action that would cause it to be in violation of the UK Anti-Bribery Act, as amended, any other similar anti-bribery or anti-corruption Law, or any rule or regulation promulgated under any of the foregoing, or Rule 206(4)-5 under the Advisers Act including by offering or conveying, directly or indirectly (such as through an agent), anything of value to obtain or retain business or to obtain any improper advantage, including any bribe, rebate, payoff, influence payment, kickback or other similar unlawful payment to a foreign government official, candidate for office, state or local government official, or political party or official of a political party.
(m) The Company has not, and, to the Knowledge of the Company, no employee, officermanager, director, partner officer or member Employee of the Company has, taken any action which would cause it to be in violation of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder. There is not now, and there has never been, any employment by the Company of, or any beneficial ownership in the Company by, any governmental or political official in any country in the world. Neither the Company nor, to the Knowledge of the Company, any employeeEmployee, officer, director, partner officer or member or Affiliate director of the Company, has within the past five (5) years (i) made, offered to make or promised to make any payments of money or other thing of value to any governmental or political official, (ii) been party to the establishment or maintenance of any unlawful or unrecorded fund of monies or other assets or (iii) been party to the making of any false or fictitious entries in the books or records of the Company or any Company Fund. 18Company.
(nm) To the Knowledge of the Company, no intermediary, placement agent, distributor or solicitor has unlawfully marketed any of the services of the Company or unlawfully marketed or sold any interest in any Company Fund, and as of the date hereof there are no outstanding claims have been asserted in writing against the Company with respect to such marketing or sale.
(on) At all times:
(i) The Company’s representations Company maintained disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) sufficient to PriceWaterhouseCoopers made in its letter ensure that information relating to PriceWaterhouseCoopers, dated March 17, 2015, in respect of FOC Capital I Fund and FOC Secured Value Fund, were true and accurate when made and the Company that is material to the Company would be true made known to the principal executive officer and accurate as principal financial officer of the date hereof and as of Company by others within the Closing DateCompany.
(pii) As ofThe Company maintained internal controls over financial reporting (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) sufficient to provide reasonable assurance regarding the reliability of financial reporting and the preparation of Financial Statements for external purposes.
(iii) There were no significant deficiencies or material weaknesses in the design or operation of the Company’s internal control over financial reporting which would have been reasonably likely to adversely affect the Company’s ability to record, process, summarize, and at all times sincereport financial information, December 31, 2014, there including financial information regarding the Company that is material to the Company.
(iv) There has been no fraudfraud relating to the Company, whether or not material, involving management or other employees Employees who had a significant role in the Company’s internal controls over financial reporting.
(o) The Company has at all times complied, and is in compliance, in all material respects with the Retention Undertaking.
(p) No “Bad Actor” disqualifying event described in Rule 506(d)(1)(i) to (viii) of the Securities Act (a “Disqualification Event”) is applicable to the Company or any Company Fund or, to the Knowledge of the Company, any officer, employee, director, partner or member of the Company or any Company Fund’s financial reporting, except for a Disqualification Event as to which Rule 506(d)(2)(ii-v) or (d)(3) is applicable.
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