Representations Related to Bad Actor Disqualification
The Subscriber, and if the Subscriber will not be the sole beneficial owner5 of its Interests, any other person or entity that may be considered a beneficial owner of its Interests (the “Beneficial Owners”), have not, within the last ten (10) years, been convicted of a felony or misdemeanor, in the United States, (i) in connection with the purchase or sale of any security, (ii) involving the making of any false filing with the U.S. Securities and Exchange Commission (the “SEC”) or (iii) arising out of the conduct of the business of an underwriter, broker, dealer, municipal securities dealer, investment adviser or paid solicitor of purchasers of securities.
The Subscriber, and any Beneficial Owners, are not currently subject to any order, judgment, or decree of any court of competent jurisdiction, entered in the last five (5) years, that restrains or enjoins it from engaging in any conduct or practice (i) in connection with the purchase or sale of any security, (ii) involving the making of a false filing with the SEC or (iii) arising out of the conduct of the business of an underwriter, broker, dealer, municipal securities dealer, investment adviser or paid solicitor of purchasers of securities.
The Subscriber, and any Beneficial Owners, are not currently subject to a Final Order6 of a state securities commission (or an agency or officer of a state performing like functions), a state authority that supervises or examines banks, savings associations, or credit unions, a state insurance commission (or an agency or officer of a state performing like functions), an appropriate federal banking agency, the National Credit Union Administration, or the Commodity Futures Trading Commission (the “CFTC”), that (i) bars it from: (I) association with an entity regulated by such commission, authority, agency, or officer; (II) engaging in the business of securities, insurance, or banking; or (III) engaging in savings association or credit union activities; or (ii) constitutes a Final Order based on a violation of any law or regulation that prohibits fraudulent, manipulative, or deceptive conduct within the last ten (10) years.
The Subscriber, and any Beneficial Owners, are not currently subject to an order of the SEC pursuant to Section 15(b) or 15B(c) of the Securities Exchange Act of 1934 or Section 203(e) or (f) of the Investment Advisers Act of 1940, as amended, that (i) suspends or revokes its registration as a broker, dealer, municipal securities dealer or investment adviser, (ii) places limitations on its activities, functions or operations or (iii) bars it from being associated with any entity or from participating in the offering of any penny stock.
The Subscriber, and any Beneficial Owners, are not currently subject to any order of the SEC, entered in the last five (5) years, that orders it to cease and desist from committing or causing a violation or future violation of (a) any scienter-based anti-fraud provision of the federal securities laws (including without limitation Section 17(a)(1) of the Securities Act of 1933, as amended, Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder, Section 15(c)(1) of the Securities Exchange Act of 1934 and Section 206(1) of the Investment Advisers Act of 1940, as amended, or any other rule or regulation thereunder) or (b) Section 5 of the Securities Act of 1933, as amended, or any provision of the federal securities laws that prohibits the sale, or facilitation of the sale, of securities without a registration statement or a valid prospectus.
The Subscriber, and any Beneficial Owners, are not currently suspended or expelled from membership in, or suspended or barred from association with a member of, a registered national securities exchange or registered national or affiliated securities association, such as the Financial Industry Regulatory Authority, Inc. (“FINRA”) or its predecessor the National Association of Securities Dealers (“NASD”), for any act or omission to act constituting conduct inconsistent with just and equitable principles of trade.
The Subscriber, and any Beneficial Owners, have not filed as a registrant or issuer, or have not been named as an underwriter in, a registration statement or Regulation A offering statement filed with the SEC that, (i) within the last five (5) years, was the subject of a refusal order, stop order, or order suspending the Regulation A exemption or (ii) is currently the subject of an investigation or a proceeding to determine whether such a stop order or suspension order should be issued.
The Subscriber, and any Beneficial Owners, are not subject to (i) a United States Postal Service false representation order entered into within the last five (5) years or (ii) a temporary restraining order or preliminary injunction with respect to conduct alleged by the United States Postal Service to constitute a scheme or device for obtaining money or property through the mail by means of false representations.
5 For purposes of these representations, a “beneficial owner” is interpreted the same way as under Rule 13d-3 of the Exchange Act and means any person who, directly or indirectly, through any contract, arrangement, understanding, relationship, or otherwise, under Rule 13d-3 of the Exchange Act, has or shares, or is deemed to have or share: (1) voting power, which includes the power to vote, or to direct the voting of, such security; and/or (2) investment power, which includes the power to dispose, or to direct the disposition of, such security.
6 The term “Final Order” means a written directive or declaratory statement issued by a federal or state agency pursuant to applicable statutory authority that provides for notice and an opportunity for hearing and/or constitutes a final disposition or action by that federal or state agency. A Final Order may still be subject to appeal and otherwise meet this definition.