Private Funds. As noted previously, we acquired several private funds (Lenox PE Fund I, LLC, Lenox Blue Chip, LLC, and Lenox HPE, LLC (each a “Fund” and collectively the “Funds”) as a result of our acquisition of Lenox Wealth Management Inc. Certain employees of the firm serve as General Partner of each Fund or devote time to Fund matters as the firm has assumed primary responsibility for administrative matters pertaining to the Funds. Our employees will devote to the Funds as much time as we deem necessary and appropriate to manage their business. Potentially, such activities could be viewed as creating a conflict of interest in that the time and effort of our management personnel and other employees will be devoted to matters related to the business of the Funds rather than our core business activity. Clients who invest in the Funds are not charged any additional advisory fees other than the advisory fee allocated to the investors in the Funds. The Funds are not required to register as an investment company under the Investment Company Act of 1940 in reliance upon an exemption available to funds whose securities are not publicly offered. The Funds are managed on a discretionary basis in accordance with the terms and conditions of the Funds’ offering and organizational documents. The Funds are not accepting new subscribers.
Private Funds. The firm acquired several private funds (Lenox PE Fund I, LLC, Lenox Blue Chip, LLC, and Lenox HPE, LLC (each a “Fund” and collectively the “Funds”) as a result of our acquisition of Lenox Wealth Management. The funds are not accepting new subscribers. Item 11 – Code of Ethics, Participation in Client Transactions and Personal Trading
Private Funds. The Company shall use commercially reasonable efforts to obtain, as promptly as reasonably practicable following the date of this Agreement, the consent of each Private Fund for which consent to the assignment or deemed assignment of such Private Fund’s Investment Advisory Arrangement with the Company or any of its Subsidiaries is required by applicable law or by such Private Fund’s Investment Advisory Arrangement as a result of the transactions contemplated by this Agreement. In furtherance thereof, as promptly as reasonably practicable following the date of this Agreement, and except as provided on Schedule 7.2(b)(i): (i)(A) if the applicable Investment Advisory Arrangement expressly requires the written consent of investors to the assignment or deemed assignment of such Private Fund’s Investment Advisory Arrangement with the Company or any of its Subsidiaries, or (B) permits consent to be obtained by a Fund Negative Consent Notice (as defined below) and the Company or the applicable Subsidiary determines, in its discretion, that for commercial reasons it would be prudent or appropriate to obtain the written consent of one or more investors in such Private Fund to the assignment or deemed assignment of such Private Fund’s Investment Advisory Arrangement, then the Company shall, and shall cause its Subsidiaries to, as applicable, send a written notice, which shall be in form and substance reasonably satisfactory to Parent, to each investor in such Private Fund described in Clause (A) or such investors described in Clause (B) requesting the written consent of the investor to the assignment or deemed assignment of the Investment Advisory Arrangement and informing each investor in the Private Fund of the intention (X) to complete the transactions contemplated by this Agreement, which will result in an assignment or deemed assignment of the Investment Advisory Arrangement with the Private Fund, and (Y) to continue to provide the advisory services pursuant to the existing Investment Advisory Arrangement with such Private Fund after the Closing so long as a majority-in-interest (or such higher percentage as may be required under the applicable Investment Advisory Arrangement) of the investors provide (and do not withdraw) their consent to the assignment or deemed assignment of such Private Fund’s Investment Advisory Arrangement; provided that any Private Fund described in Clause (A) shall be deemed a Non-Consenting Client unless and until a majority-in-interest...
Private Funds. (a) Each Private Fund has been duly organized and is validly existing and in good standing under the laws of the jurisdiction of its organization and has all requisite corporate, partnership, limited liability company, or similar power and authority. Each Private Fund possesses all material permits necessary to entitle it to use its name, to own, lease or otherwise hold its properties and assets and to carry on its business as it is now conducted. Each Private Fund is duly qualified, licensed or registered to do business in each jurisdiction where it is required to do so under Applicable Law other than any failure to be so qualified that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect. All outstanding shares or units of each Private Fund have been issued and sold on a private placement basis in compliance with Applicable Law, including pursuant to an applicable exemption from registration pursuant to the Securities Act and the Investment Company Act.
(b) As to each Private Fund, there has been in full force and effect an Investment Advisory Agreement at all times that any Hatteras Group member was performing Investment Management Services for such Private Fund, and each such Investment Advisory Agreement pursuant to which any of the Hatteras Group members has received compensation respecting its activities in connection with any of the Private Funds was duly approved in accordance with Applicable Law (as applicable to such Private Fund). Each such Investment Advisory Agreement contains all provisions required by Applicable Law, including the Investment Advisers Act.
(c) There are no material special restrictions, consent judgments or judicial orders on or with regard to any of the Private Funds. All material notifications to local regulatory and other bodies required by Applicable Laws have been made to permit such activities as are carried out by the Private Funds and all authorizations, licenses, consents and approvals required by Applicable Laws have been obtained in relation to the Private Funds.
(d) Copies of the current private placement memorandum or other offering document of each of the Private Funds have been provided to Purchaser by the Hatteras Sellers prior to the date hereof. Each investor or offeree of an investment in a Private Fund (other than Hatteras Trading Advisors, an exempted company incorporated in the Cayman Islands) has been delivered a private placement memorandum (or other ap...
Private Funds. (a) Each Private Fund has been duly organized and is validly existing and in good standing under the laws of the jurisdiction of its organization and has all requisite partnership, limited liability company, or similar power and authority. Each Private Fund possesses all permits necessary to entitle it to use its name, to own, lease or otherwise hold its properties and assets and to carry on its business as it is now conducted. Each Private Fund is duly qualified, licensed or registered to do business in each jurisdiction where it is required to do so under all applicable laws. All of the outstanding shares or other ownership interests of each Private Fund (as applicable) are duly authorized, validly issued, fully paid and non-assessable, and none of such shares or other ownership interests have been issued in violation of any applicable laws.
(b) Schedule 4.20
Private Funds. (a) Section 2.18(a) of the Disclosure Schedules lists all of the Private Funds to which any of the Adviser Entities and Private Fund GPs provides Investment Management Services. Except for such Private Funds and the Registered Funds listed on Section 2.17(a) of the Disclosure Schedules, there are no pooled investment vehicles for which an Adviser Entity or Private Fund GP provides Investment Management Services or serves as the sponsor, general partner, managing member, sub-adviser, or in any similar capacity (including any master or feeder fund, parallel fund, fund of one or other similar alternative investment vehicle or third party co-investment vehicle).
(b) Each Private Fund is duly organized, validly existing and in good standing under the Laws of the jurisdiction of its organization and has the requisite corporate, trust, company, or partnership power to carry on its business as it is now being conducted, and is qualified to do business in each jurisdiction where it is required to be so qualified under applicable Laws.
(c) Each Private Fund has, since January 1, 2019, operated in material compliance with all Investment Laws and with its investment policies and restrictions, as set forth in its Private Fund Documents (as they may be amended from time to time). Since January 1, 2019, each Private Fund has filed all regulatory documents in material compliance with all Investment Laws, and each Private Fund has complied in all material respects with the privacy and security rules and applicable regulations under the Xxxxx-Xxxxx-Xxxxxx Act, including the giving of any required notices to investors in each of the Private Funds and the safeguarding of investors’ non-public personal information.
(d) The shares, units, or other ownership interests of each Private Fund have been issued and sold in compliance with all Investment Laws. Since January 1, 2019, no Private Fund has issued or had outstanding any shares, units or other ownership interests that are registered or required to be registered under applicable Investment Laws. Each Private Fund Document has been prepared in compliance in all material respects with the requirements of applicable Investment Laws and has not included any untrue statement of material fact or omitted to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.
(e) Each Private Fund has since January 1, 2019 timely filed (or caused to be...
Private Funds. (a) To the knowledge of the Company, the Private Funds meet, and at all times have met, all conditions to be excluded from the definition of “investment company” in the U.S. Investment Company Act pursuant to Section 3(c)(1) and/or 3(c)(7) of the U.S. Investment Company Act.
(b) The Private Funds do not hold or invest in, and do not intend in the future to acquire, hold, or invest in, any security that is listed on a securities exchange or publicly traded on a securities exchange or on the over-the-counter markets.
(c) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect: (i) each Private Fund has sufficient collateral to support its current borrowing; (ii) the Investment Adviser is not a guarantor of, or otherwise liable in connection with, on behalf of, or for any borrowing obligations of any Private Fund; and (iii) at all times since January 1, 2020, all securities and cash of the Private Funds have been maintained at a qualified custodian and the Investment Adviser has obtained the requisite audit of its Private Funds and delivered the audited financial statements to each investor (or authorized representative thereof) in the Private Funds in accordance with Rule 206(4)-2 under the U.S. Advisers Act.
(d) To the knowledge of the Company, as of the date hereof, there are no material defaults by any Private Fund investors on capital calls or capital contributions with respect to any Private Fund except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, and, to the knowledge of the Company, no limited partner or investor in any Private Fund has expressed its intent to fail to fund a capital call or capital contribution except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(e) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, to the extent any Private Fund has or anticipates executing any transactions in instruments regulated by the CFTC, the Investment Adviser or relevant affiliate thereof has timely made all applicable filings and affirmations necessary to claim the applicable exemption from the commodity pool operator or commodity trading authority registration requirements under the U.S. Commodity Exchange Act and any CFTC or NFA rules.
Private Funds. (a) With respect to each of the Private Funds, the Company shall, in accordance with applicable Law and the applicable Fund Documents, use its reasonable best efforts to obtain, as soon as reasonably practicable following the date hereof and prior to the Effective Time, the requisite consent of each such Private Fund, the investor advisory committee or general partner of the Private Fund and/or Private Fund investor, to the deemed “assignment” as defined in the U.S. Advisers Act (including, as applicable, the consent of any applicable requisite percentage of the board of directors, advisory committee, investment committee, or investors therein).
(b) At all times prior to the Effective Time, the Company shall keep the Purchaser reasonably informed of the status of obtaining the consents pursuant to Section 4.19(a) and shall make available to the Purchaser copies of any related materials and other records relating to such consent process. Without limiting the foregoing or the terms set forth in this Section 4.19, in connection with obtaining the consents required under Section 4.19(a), (i) the Purchaser shall have the reasonable opportunity to review drafts of the form and substance of any materials to be distributed to the Private Funds or other Persons in order to obtain the necessary consent, (ii) the Company shall consider the Purchaser’s reasonable comments in good faith prior to such distribution and (iii) the Company shall obtain the Purchaser’s consent (such consent not to be unreasonably withheld) to the form and substance of such materials prior to such distribution.
(c) The Company shall promptly notify the Purchaser after the receipt by the Company or any Company Subsidiary of any written notice that any Private Fund (i) has terminated or intends to terminate any Investment Advisory Arrangement or (ii) has sought, is seeking or intends to seek, to reduce any fees it will pay under any Investment Advisory Arrangement.
(d) During the Interim Period, the Company will not and shall cause each Company Subsidiary not to (i) permit (A) any amendment or modification of the terms of, or waiver under, any Investment Advisory Arrangement or Fund Document or (B) any accommodation as a condition to obtaining any consent solicited pursuant to Section 4.19; or (ii) except in the Ordinary Course, decrease, subsidize, rebate, discount, waive, or defer any fees chargeable by the Company or any Company Subsidiary in connection with any Private Fund, in each case, o...
Private Funds. (i) Each Private Fund is a limited liability company duly formed, validly existing and in good standing under the Laws of the jurisdiction of its formation, and has all requisite power and authority to conduct its business in the manner currently conducted. The Seller has delivered to the Purchaser true and complete copies of each Private Fund Agreement as in effect as of the date of this Agreement.
(ii) None of the Private Funds is, or has been required to be, registered as an investment company, unit trust, collective investment scheme, or similar entity under the Investment Company Act or any similar applicable Law.
(iii) All of the outstanding Equity Interests of each Private Fund (as applicable) are duly authorized and validly issued, and none of such Equity Interests have been issued in material violation of any applicable Laws, the applicable Private Fund Agreement, or the private placement memorandum or other offering documents related to such Private Fund. The books and records of each Private Fund, reflecting, among other things, the purchase and sale of the Equity Interests of such Private Fund by its investors, the number of issued and outstanding (or the percentage of) Equity Interests owned by each investor and the state or other jurisdiction in which such Equity Interests were offered and sold, are complete and accurate in all material respects.
(iv) Scout has performed its services as manager with respect to each Private Fund in compliance with the applicable Private Fund Agreement for such Private Fund and applicable Law, in each case in all material respects. To the Knowledge of the Seller, each Private Fund is operating and within the past five years has operated in compliance with the applicable Private Fund Agreement for such Private Fund and all applicable Laws in all material respects.
(v) There is no material Claim pending, or, to the Knowledge of the Seller, threatened, against Scout relating to Scout’s performance as manager with respect to any Private Fund.
(vi) To the Knowledge of the Seller, there is no Claim pending or threatened against any Private Fund, and there are no consent decrees or similar arrangements with a Governmental Authority or other Person by, or relating to, Scout or any such Private Fund that are still in effect, or were in effect within the past five years.
(vii) The private placement memorandum or other offering documents relating to each Private Fund are accurate and complete in all material respects, and...
Private Funds. (i) If consent is required by Applicable Law and/or by the Investment Advisory Agreement of any Client (other than a Registered Fund) for (A) the Investment Advisory Agreement with such Client to continue after Closing, in the case of such Client who is party to an Investment Advisory Agreement which does not terminate automatically (by its terms and/or under Applicable Laws) as a result of the consummation of the transactions contemplated hereby, or (B) a new Investment Advisory Agreement between such Client and Purchaser, in the case of such Client who is party to an Investment Advisory Agreement that will terminate automatically (by its terms and/or under Applicable Laws) as a result of the consummation of the transactions contemplated hereby, as promptly as practicable after the date hereof (but in any event later than the 30th day following the date hereof), the Hatteras Sellers shall cause the members of the Hatteras Group to notify each such Client of the transactions contemplated hereby and the deemed assignment of such Client’s Investment Advisory Agreement that will result from the consummation of such transactions by sending a notice in the form of Exhibit I (a “Transaction Notice”) and otherwise complying with Applicable Law and the terms of such Client’s Investment Advisory Agreement to such Client (1) requesting the consent in writing of such Client to such assignment of its Investment Advisory Agreement, in the case of each such Client who is party to an Investment Advisory Agreement which does not terminate automatically (by its terms and/or under Applicable Laws) as a result of the consummation of the transactions contemplated hereby, or (2) requesting (by written letter in form and substance reasonably satisfactory to Purchaser and not a Transaction Notice) that such Client enter into a new Investment Advisory Agreement with Purchaser on terms substantially identical (and identical with respect to fees) as its existing Investment Advisory Agreement (to be effective from and after the Closing), in the case of any such Client who is party to an Investment Advisory Agreement that will terminate automatically (by its terms and/or under Applicable Laws) as a result of the consummation of the transactions contemplated hereby.
