Member Representations. Each Member hereby represents and warrants to the Company as follows:
(a) If the Member is a corporation, partnership, limited liability company, trust, estate or other entity, the Member is empowered, authorized and qualified to become a Member subject to the terms and conditions of this Agreement, and the person signing this Agreement on behalf of the Member has been duly authorized by the Member to do so;
(b) If the Member is an individual, the Member is of legal age to execute this Agreement and is legally competent to do so;
(c) This Agreement has been duly authorized, executed and delivered by the Member and, upon due authorization, execution and delivery by the other parties hereto, will constitute the valid and legally binding agreement of the Member, enforceable in accordance with its terms against the Member;
(d) The execution, delivery and performance of this Agreement by the Member does not and will not result in a breach of any of the terms, conditions or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, credit agreement, note or other evidence of indebtedness, or any lease or other agreement, or any license, permit, franchise or certificate, to which the Member is a party or by which it is bound or to which any of its properties are subject, or require any authorization or approval under or pursuant to any of the foregoing, or violate the organizational documents of the Member, or violate in any material respect any statute, regulation, law, order, writ, injunction or decree to which the Member is subject;
(i) The Member understands that the offering and sale of the Membership Units are intended to be exempt from registration under the Securities Act and applicable U.S. state securities laws in reliance on the private placement exemption from registration provided in Section 4(2) of the Securities Act and Regulation D promulgated thereunder and exemptions under applicable U.S. state securities laws and, in the case of persons that are not U.S. persons, in reliance on exemptions under the applicable laws of the non-U.S. jurisdiction in which the Membership Units are being offered and sold, and the Member agrees that it shall not engage in any Transfer of the Membership Units it acquires in any manner that would require the registration of the Membership Units under the Securities Act or under the laws of any non-U.S. jurisdictions.
(ii) The Member is an “accredited investor” within the meaning of Regulation ...
Member Representations. Each Member represents and warrants as to itself only that:
(a) it has full power and authority to enter into and perform this Agreement, and this Agreement constitutes a valid and binding agreement of the Member;
(b) it has acquired the Common Units for its own account, for investment only, and not with a view to the sale or distribution of those Common Units or any portion of those Common Units;
(c) it is an “accredited investor” as defined in Rule 501(a) promulgated under the Securities Act of 1933, as amended, and all rules and regulations promulgated thereunder, as the same may be amended from time to time (the “Securities Act”), and that an investment in the Company is speculative and involves certain risks and that the Member could lose its entire investment in the Company;
(d) it understands that the offer and sale of the Common Units have not been registered under the Securities Act or under the securities act of any state on the basis that the sale provided hereunder is exempt from the registration provisions thereof and the Common Units may not be transferred, sold, offered for sale, pledged, hypothecated or otherwise disposed of without registration under the Securities Act and any other provisions of applicable state securities laws or pursuant to an applicable exemption therefrom; (ii) the Common Units must be held indefinitely and the Member must continue to bear the economic risk of the investment in the Common Units unless the offer and sale of the Common Units are subsequently registered under the Securities Act and all applicable state securities laws or an exemption from such registration is available; and (iii) there is no established market for the Common Units and it is not anticipated that there will be any public market in the foreseeable future; and
(e) it (i) is an informed and sophisticated purchaser, and has engaged advisors, experienced in investments in companies like Midway; (ii) has undertaken such investigation and has been provided with and has evaluated such documents and information as it has deemed necessary to enable it to make an informed and intelligent decision with respect to the execution, delivery and performance of this Agreement (including, without limitation, reviewing copies of the filings of Midway with the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended, and all rules and regulations promulgated thereunder, as the same may be amended from time to time).
Member Representations. (a) Each Member represents and warrants to the other and the Company that (i) its Interest has been acquired for its own account, for investment, and not with an intent or a present view to participating, directly or indirectly, in or for the resale in connection with any distribution (as interpreted under any applicable law) thereof, nor with any present intention of dividing its participation, distribution, reselling, assigning or otherwise disposing of all or part of such Interest, and (ii) it will not make or offer to make a transfer of its Interest in violation of the Securities Act of 1933, as amended, or any other applicable Federal or state securities laws.
(b) Each Member represents and warrants to the other Members and the Company that this Agreement has been duly authorized, executed and delivered on behalf of such Member and is the legal, valid and binding obligation of such Member, enforceable against it in accordance with its terms.
Member Representations. The Member represents and warrants to the TRBA, as a material inducement to the TRBA to execute this Agreement that:
(a) The Member is authorized to do business in the State of Tennessee and properly licensed by all necessary governmental authorities; and
(b) The Member is not currently engaged in any activity that might bring the TRBA material disrepute. Breach of the representations and warranties in this Section shall constitute grounds for immediate termination of the Agreement.
Member Representations. Each Member represents and warrants to and covenants with the other Members as follows:
Member Representations. (a) Each Member hereby represents and warrants to the Company and to the other Members:
(i) such Member’s Interest is acquired for investment purposes only for his or its own account and not with a view to or in connection with any distribution, reoffer, resale or other disposition not in compliance with the Securities Act and applicable state securities laws;
(ii) such Member alone or together with his or its representatives possesses such expertise, knowledge and sophistication in financial and business matters generally, and in the type of transactions in which the Company proposes to engage in particular, that such Member is capable of evaluating the merits and economic risks of acquiring and holding an Interest, and that such Member is able to bear all such economic risks now and in the future;
(iii) such Member has had access to all of the information with respect to his or its Interest that such Member deems necessary to make a complete evaluation thereof;
(iv) such Member’s decision to acquire an Interest for investment has been based solely upon the evaluation made by such Member;
(v) such Member is aware that he or it must bear the economic risk of such Member’s investment in the Company for an indefinite period of time because Interests have not been registered under the Securities Act or under the securities laws of any State, and therefore, such Interests cannot be sold unless they are subsequently registered under the Securities Act and any applicable state securities laws or an exemption from registration is available;
(vi) such Member is aware that only the Company can take action to register interests in the Company and the Company is under no such obligation and does not propose or intend to attempt to do so other than pursuant to the terms of this Agreement;
(vii) such Member is aware that this Agreement provides restrictions on the ability of a Member to Transfer Interests; and
(viii) such Member is an “accredited investor” within the meaning of Regulation D under the Securities Act.
(b) Xxxxx hereby represents to each of the other Members that the provisions of Section 1.10 are true and correct.
Member Representations. Each Member represents and warrants to the other Members and the Company, as to itself only, that:
(i) It has the power and authority to execute and deliver this Agreement and to perform its obligations under this Agreement.
(ii) The execution, delivery and performance by it of this Agreement has been duly authorized, and no other action on the part of such Member or its officers, managers, board of directors, shareholders or members is necessary to authorize the execution and delivery by it of this Agreement and the performance by it of its obligations under this Agreement.
(iii) This Agreement has been duly executed and delivered by it and is a legal, valid and binding obligation of such Member, enforceable against such Member in accordance with its terms except (1) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws of general application affecting enforcement of creditors’ rights generally, and (2) the availability of the remedy of specific performance or injunctive or other forms of equitable relief may be subject to equitable defenses and would be subject to the discretion of the court before which any proceeding therefore may be brought.
(iv) It understands that the Company intends to be classified and taxed as a partnership for U.S. federal Tax purposes and not as a publicly traded partnership, and accordingly agrees that it will not Transfer any Membership Interests, or cause any Membership Interests to be marketed, on or through an “established securities market” within the meaning of Section 7704(b)(1) of the Code or a “secondary market (or the substantial equivalent thereof)” within the meaning of Section 7704(b)(2) of the Code, including, without limitation, an over-the-counter market or an interdealer quotation system that regularly disseminates firm buy or sell quotations.
(v) It is either:
(1) Not a partnership, grantor trust, S corporation, limited liability company or other pass-through entity for U.S. federal income Tax purposes; or
(2) If it is an entity referred to in clause (1), then either: (x) it was not formed for the purpose of acquiring all or part of the Membership Interests and not more than 40% of the value of the interest of each of its beneficial owners will be attributable to the Membership Interests so acquired, or (y) it has and will have only the number of ultimate beneficial owners (looking through a pass-through entity described in clause (1) above t...
Member Representations. Member represents, warrants and covenants that whether Member purchases Products directly from Xxxxxx Nutrition or indirectly through a distributor, Member will purchase Products solely for its Own Use (as hereinafter defined) in providing skilled care to its patients in its facility or a home health care setting as an Authorized Health Care Provider (as hereinafter defined). For purposes of this section, “Own Use” shall mean those uses that are part of providing health care services and products directly to patients who are in an institutional or home health care setting within the fifty (50) United States. “Authorized Health Care Provider” shall mean a person or entity that: (a) is licensed to provide health care services directly to its patients in an institutional setting, or (b) provides skilled home health care services and products directly to its patients in a home health care setting and Member must be a licensed health care provider that provides nursing and/or dietician services to its patients, and the patients must be under the care of Member and have a written order for use of products under a plan of care. Examples of Authorized Health Care Providers may include: hospitals and hospital in-patient clinics, skilled nursing facilities, nursing homes, in-patient rehabilitation facilities, prisons and home care agencies. Authorized Health Care Provider shall not include a person or entity that provides services in the following settings: WIC agencies, physicians or physician’s offices, senior independent living or retirement facilities, food and drug wholesalers/retailers, distributors and other similar resellers, retail pharmacies, retail stores, and other similar entities. Further, Authorized Health care Provider shall not include companies that provide home delivery services, Internet ordering and delivery services, or similar services, unless such services are provided as a part of an Authorized Health Care Provider’s Own Use. Products will not be purchased for distribution in any manner that would compete in the retail marketplace. In addition, Products purchased under this Agreement shall not be resold, provided to patients at time of discharge, or provided to any employee of Member or any other entity or person outside of the Own Use requirements defined herein.
Member Representations. Each Member issued Class A Common Stock pursuant to this Agreement hereby severally represents and warrants that, as of each Quarterly Exchange Date upon which a Member is issued Class A Common Stock, that: (a) it is acquiring the Class A Common Stock issued in accordance with this Agreement for its own account with the present intention of holding such stock for purposes of investment, and that it has no intention of selling such stock in a public distribution in violation of any federal or state securities laws; (b) it is a sophisticated party for purposes of applicable federal and state securities laws and regulations; (c) it believes that it has such knowledge and experience in financial and business matters that such Member is capable of evaluating the merits and risks of an investment in National Beef; (d) it is able to bear the economic risks of an investment in the Class A Common Stock and could afford a complete loss of such investment; (e) the execution, delivery and performance of this Agreement by such Member does not and will not conflict with, violate or cause a breach of any agreement, contract or instrument to which such Member is subject; and (f) the NBP LLC Units surrendered in connection with such Exchange are owned by the Exchanging Member, free and clear from all liens and encumbrances.
Member Representations. The Member hereby makes the following representations and warranties:
