Healthy Fast Food, Inc. UNDERWRITING AGREEMENT dated _____________, 2010 Paulson Investment Company, Inc.
EXHIBIT 1.1
Healthy
Fast Food, Inc.
dated
_____________, 2010
Xxxxxxx
Investment Company, Inc.
January ,
2010
Xxxxxxx
Investment Company, Inc.
000 XX
Xxxxx Xxxxxxx
Xxxxxxxx,
Xxxxxx 00000
Ladies
and Gentlemen:
The Company confirms its agreement with
each Underwriter as follows:
The Company represents, warrants and
covenants to the Underwriter as follows:
regulations
promulgated thereunder (collectively, the “Exchange Act”), is
called the “Registration
Statement.” Any registration statement filed by the Company
pursuant to Rule 462(b) under the Securities Act is called the “Rule 462(b) Registration
Statement,” and from and after the date and time of filing of the Rule
462(b) Registration Statement the term “Registration
Statement” shall include the Rule 462(b) Registration
Statement. Such prospectus, in the form first filed pursuant to Rule
424(b) under the Securities Act after the date and time that this Agreement is
executed and delivered by the parties hereto (the “Execution Time”), or,
if no filing pursuant to Rule 424(b) under the Securities Act is required, the
form of final prospectus relating to the Units included in the Registration
Statement at the effective date of the Registration Statement, is called the
“Prospectus.” All
references in this Agreement to the Registration Statement, the Rule 462(b)
Registration Statement, the Company’s preliminary prospectus included in the
Registration Statement (each a “preliminary
prospectus”), the Prospectus, or any amendments or supplements to any of
the foregoing, shall include any copy thereof filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval System (“XXXXX”). Any
reference herein to any preliminary prospectus or the Prospectus or any
supplement or amendment to either thereof shall be deemed to refer to and
include any documents incorporated by reference therein as of the date of such
reference.
Each
preliminary prospectus and the Prospectus when filed complied or will comply in
all material respects with the Securities Act and, if filed by electronic
transmission pursuant to XXXXX (except as may be permitted by Regulation S-T
under the Securities Act), was identical in content to the copy thereof
delivered to the Underwriters for use in connection with the offer and sale of
the Units other than with respect to any artwork and graphics that were not
filed. Each of the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendment thereto, at the time it
became effective and at all subsequent times until the expiration of the
prospectus delivery period required under Section 4(3) of the Securities Act,
complied and will comply in all material respects with the Securities Act and
did not and will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading. The Prospectus (including any
Prospectus wrapper), as amended or supplemented, as of its date and at all
subsequent times until the Underwriters have completed their distribution of the
offering of the Units, did not and will not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. The representations and warranties set forth in
the two immediately preceding sentences do not apply to statements in or
omissions from the Registration Statement, any Rule 462(b) Registration
Statement, or any post-effective amendment thereto, or the Prospectus, or any
amendments or supplements thereto, made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by
the Representative expressly for use therein, it being understood and
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agreed
that the only such information furnished by the Representative consists of the
information described as such in Section 8 hereof. There are no
contracts or other documents required to be described in the Prospectus or to be
filed as exhibits to the Registration Statement that have not been described or
filed as required.
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Prospectus,
any Issuer Free Writing Prospectus reviewed and consented to by the
Representative, and the Registration Statement.
(h) The Underwriting
Agreement. This Agreement
has been duly authorized (to the extent applicable), executed and delivered by,
and is a valid and binding agreement of, the Company, enforceable in accordance
with its terms, except as rights to indemnification hereunder may be limited by
applicable law and except as the enforcement hereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights and remedies of creditors or by general
equitable principles.
(i) The
Common Stock included in the Units to be purchased by the Underwriters from the
Company (including units purchasable on exercise of the Underwriters'
overallotment option described in Section 2(c) and the Representative's Warrants
described in Section 2(h)) has been duly authorized and reserved for issuance
and sale pursuant to this Agreement and, in the case of Common Stock issuable on
exercise of the Representative's Warrants, the terms thereof and, when so issued
and delivered by the Company, will be validly issued, fully paid and
nonassessable.
(ii) The
Class C Warrants included in the Units to be purchased by the Underwriters from
the Company have been duly and validly authorized by all required corporate
actions and will, when issued and delivered by the Company pursuant to this
Agreement, be validly executed and delivered by, and will be valid and binding
agreements of, the Company, enforceable in accordance with their terms, except
as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting the
rights and remedies of creditors or by general equitable
principles.
(iii) The
Representative's Warrants have been duly and validly authorized by all required
corporate actions and will, when issued and delivered by the Company pursuant to
this Agreement, be validly executed and delivered by, and will be valid and
binding agreements of, the Company, enforceable in accordance with their terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting the
rights and remedies of creditors or by general equitable
principles.
(iv) The
Common Stock issuable on exercise of the Class C Warrants has been duly
authorized and reserved for issuance and sale pursuant to their terms and, when
issued and delivered by the Company pursuant to such warrants, will be validly
issued, fully paid and nonassessable.
(v) The
Warrant Agreement has been duly and validly authorized by all required corporate
actions of the Company and will, when executed and delivered (and assuming due
and valid execution by the Warrant Agent) constitute a valid
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and
binding agreement of the Company, enforceable against the Company in accordance
with its terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting the rights and remedies of creditors or by general equitable
principles.
(vi) Each
of the Class C Warrants and the Representative's Warrants will, when issued,
possess rights, privileges, and characteristics as represented in the most
recent form of Warrant Agreement or Representative's Warrants, as the case may
be, filed as an exhibit to the Registration Statement.
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Prospectus
fairly presents such information on a basis consistent with that of the complete
financial statements contained in the Registration Statement.
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contracts
filed as exhibits to the Registration Statement or to which any of the property
or assets of the Company is subject (each, an “Existing
Instrument”)), except for such Defaults as would not, individually or in
the aggregate, result in a Material Adverse Change. The Company’s
execution, delivery and performance of this Agreement and consummation of the
transactions contemplated hereby and by the Disclosure Package and the
Prospectus (i) have been duly authorized by all necessary corporate action and
will not result in any violation of the provisions of the charter or bylaws of
the Company, (ii) will not conflict with or constitute a breach of, or Default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company pursuant to, or require
the consent of any other party to, any Existing Instrument, except for such
conflicts, breaches, Defaults, liens, charges or encumbrances as would not,
individually or in the aggregate, result in a Material Adverse Change and (iii)
will not result in any violation of any law, administrative regulation or
administrative or court decree applicable to the Company. No consent,
approval, authorization or other order of, or registration or filing with, any
court or other governmental or regulatory authority or agency, is required for
the Company’s execution, delivery and performance of this Agreement and
consummation of the transactions contemplated hereby and by the Disclosure
Package and the Prospectus, except the registration or qualification of the
Units, Common Stock and Class C Warrants under the Securities Act and applicable
state securities or blue sky laws and from the Financial Industry Regulatory
Authority (the “FINRA”).
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petroleum
products (collectively, “Materials of Environmental
Concern”), or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Materials of Environment Concern (collectively, “Environmental Laws”),
which violation includes, but is not limited to, noncompliance with any permits
or other governmental authorizations required for the operation of the business
of the Company under applicable Environmental Laws, or noncompliance with the
terms and conditions thereof, nor has the Company received any written
communication, whether from a governmental authority, citizens group, employee
or otherwise, that alleges that the Company is in violation of any Environmental
Law; (ii) there is no claim, action or cause of action filed with a court or
governmental authority, no investigation with respect to which the Company has
received written notice, and no written notice by any person or entity alleging
potential liability for investigatory costs, cleanup costs, governmental
responses costs, natural resources damages, property damages, personal injuries,
attorneys’ fees or penalties arising out of, based on or resulting from the
presence, or release into the environment, of any Material of Environmental
Concern at any location owned, leased or operated by the Company, now or in the
past (collectively, “Environmental
Claims”), pending or, to the best of the Company’s knowledge, threatened
against the Company or any person or entity whose liability for any
Environmental Claim the Company has retained or assumed either contractually or
by operation of law; and (iii) to the best of the Company’s knowledge, there are
no past or present actions, activities, circumstances, conditions, events or
incidents, including, without limitation, the release, emission, discharge,
presence or disposal of any Material of Environmental Concern, that reasonably
could result in a violation of any Environmental Law or form the basis of a
potential Environmental Claim against the Company or against any person or
entity whose liability for any Environmental Claim the Company has retained or
assumed either contractually or by operation of law.
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Any certificate signed by an officer of
the Company and delivered to the Representative or to counsel for the
Underwriters shall be deemed to be a representation and warranty by the Company
to each Underwriter as to the matters set forth therein.
The
Company acknowledges that the Underwriters and, for purposes of the opinions to
be delivered pursuant to Section 5 hereof, counsel to the Company and counsel to
the Underwriters, will rely upon the accuracy and truthfulness of the foregoing
representations and hereby consents to such reliance.
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per Unit
to be paid by the Underwriters for the Firm Units. The option granted
hereunder may be exercised at any time and from time to time upon notice by the
Representative to the Company which notice may be given at any time within 45
days from the date of this Agreement. Such notice shall set forth (i)
the aggregate number of Optional Units as to which the Underwriters are
exercising the option, (ii) the names and denominations in which the Optional
Units are to be registered and (iii) the time, date and place at which such
Optional Units will be delivered (which time and date may be simultaneous with,
but not earlier than, the First Closing Date; and in such case the term “First
Closing Date” shall refer to the time and date of delivery of the Firm Units and
the Optional Units). Each time and date of delivery, if subsequent to
the First Closing Date, is called the “Subsequent Closing
Date” and shall be determined by the Representative and shall not be
earlier than three nor later than five full business days after delivery of such
notice of exercise.
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adjustment
and conversion as described in the form of Representative's Warrants filed as an
exhibit to the Registration Statement.
Section
3. Covenants
of the Company.
The
Company covenants and agrees with the Underwriters as follows:
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the
Company will not, without the prior written consent of the Representative (which
consent may be withheld at the Representative's sole discretion), directly or
indirectly, sell, offer, contract or grant any option to sell, pledge, transfer
or establish an open “put equivalent
position” within the meaning of Rule 16a-1(h) under the Exchange Act, or
otherwise dispose of or transfer, or announce the offering of, or file any
registration statement under the Securities Act (except as contemplated by the
Prospectus) in respect of, any shares of Common Stock, options or warrants to
acquire shares of the Common Stock or securities exchangeable or exercisable for
or convertible into shares of Common Stock (other than as contemplated by this
Agreement with respect to the Units); provided, however, that the Company may
issue shares of its Common Stock or options to purchase its Common Stock, or
shares of Common Stock upon exercise of options, in each case, pursuant to any
stock option, stock bonus or other stock plan, arrangement or contractual
obligation described in the Prospectus.
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the
Commission, the FINRA or any securities exchange; and (iii) as soon as
available, copies of any report or communication of the Company mailed generally
to holders of its capital stock.
(a) The
Representative shall be entitled to reimbursement from the Company, for itself
alone and not as Representative of the Underwriters, to a non-accountable
expense allowance equal to 3% of the aggregate initial public offering price of
the Firm Units. The Representative shall be entitled to withhold this
allowance on the Closing Date related to the purchase of the Firm
Units.
(b) In
addition to the payment described in Paragraph (a) of this Section 4, the
Company agrees to pay all costs, fees and expenses incurred in connection with
the performance of its obligations hereunder and in connection with the
transactions contemplated hereby, including without limitation (i) all expenses
incident to the issuance and delivery of the Units (including all printing and
engraving costs, if any), (ii) all fees and expenses of the registrar and
transfer agent of the Common Stock, (iii) all necessary issue, transfer and
other stamp taxes in connection with the issuance and sale of the Units to the
Underwriters, (iv) all fees and expenses of the Company’s counsel, independent
public or certified public accountants and other advisors, (v) all costs and
expenses incurred in connection with the preparation, printing, filing, shipping
and distribution of the Registration Statement (including financial statements,
exhibits, schedules, consents and certificates of experts), each Issuer Free
Writing Prospectus, each preliminary prospectus and the Prospectus, and all
amendments and supplements thereto, and this Agreement, (vi) all filing fees,
attorneys’ fees and expenses incurred by the Company or the Underwriters in
connection with qualifying or registering (or obtaining exemptions from the
qualification or registration of) all or any part of the Units for offer and
sale under the state securities or blue sky laws, and, if requested by the
Representative, preparing and printing a “Blue Sky Survey” or memorandum, and
any supplements thereto, advising the Underwriters of such qualifications,
registrations and exemptions, (vii) the filing fees incident to the FINRA’s
review and approval of the Underwriters' participation in the offering and
distribution of the Units, (viii) all other fees, costs and expenses referred to
in Item 25 of Part II of the Registration Statement, and (ix) all reasonable
out-of-pocket costs and expenses of the Underwriters. Except
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as
provided in this Section 4, Section 6, Section 8 and Section 9 hereof, the
Underwriters shall pay its own expenses, including the fees and disbursements of
its counsel.
Section
5. Conditions of the Obligations of the
Underwriters. The obligations
of the Underwriters to purchase and pay for the Firm Units as provided herein on
the First Closing Date and, with respect to the Optional Units, each Subsequent
Closing Date, shall be subject to (1) the accuracy of the representations and
warranties on the part of the Company set forth in Section 1 hereof as of the
date hereof and as of the First Closing Date and each Subsequent Closing Date as
though then made; (2) the timely performance by the Company of its covenants and
other obligations hereunder; and (3) each of the following additional
conditions:
(i) the
Company shall have filed the Prospectus with the Commission (including the
information required by Rule 430A under the Securities Act) in the manner and
within the time period required by Rule 424(b) under the Securities Act; or the
Company shall have filed a post-effective amendment to the Registration
Statement containing the information required by such Rule 430A, and such
post-effective amendment shall have become effective; and
(ii) no
stop order suspending the effectiveness of the Registration Statement, or any
post-effective amendment to the Registration Statement, shall be in effect and
no proceedings for such purpose shall have been instituted or threatened by the
Commission.
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the
Representative shall have received an additional four conformed copies of such
opinion letter for the several Underwriters).
(i) for
the period from and after the date of this Agreement and prior to such Closing
Date, there has not occurred any Material Adverse Change;
(ii) the
representations, warranties and covenants of the Company set forth in Section 1
of this Agreement are true and correct with the same force and effect as though
expressly made on and as of such Closing Date; and
(iii) the
Company has complied with all the agreements hereunder and satisfied all the
conditions on its part to be performed or satisfied hereunder at or prior to
such Closing Date.
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purposes
of enabling them to pass upon the issuance and sale of the Units as contemplated
herein, or in order to evidence the accuracy of any of the representations and
warranties, or the satisfaction of any of the conditions or agreements, herein
contained.
If any
condition specified in this Section 5 is not satisfied when and as required to
be satisfied, this Agreement may be terminated by the Representative by notice
to the Company at any time on or prior to the First Closing Date and, with
respect to the Optional Units, at any time prior to each Subsequent Closing
Date, which termination shall be without liability on the part of any party to
any other party, except that Section 4, Section 6, Section 8 and Section 9 shall
at all times be effective and shall survive such termination.
Section
6. Reimbursement of Underwriters'
Expenses. If this
Agreement is terminated by the Representative pursuant to Section 5 or Section
11, or by the Company pursuant to Section 7, or if the sale to the Underwriters
of the Units on the First Closing Date or Subsequent Closing Date is not
consummated because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or to comply with any provision hereof,
the Company agrees to reimburse the Representative and the other Underwriters
for such Underwriters as have terminated this Agreement with regard to
themselves, severally, upon demand for all out-of-pocket expenses that shall
have been reasonably incurred by the Representative and the Underwriters in
connection with the proposed purchase and the offering and sale of the Units,
including but not limited to fees and disbursements of counsel, printing
expenses, travel expenses, postage, facsimile and telephone charges; provided,
however, that the Company shall only reimburse the Representative (and not any
of the other Underwriters) for fees and disbursements of counsel.
Section
7. Effectiveness of this
Agreement. This Agreement
shall not become effective until the later of (i) the execution of this
Agreement by the parties hereto and (ii) notification (including by way of oral
notification from the reviewer at the Commission) by the Commission to the
Company of the effectiveness of the Registration Statement under the Securities
Act; provided that
Sections 4, 6, 8 and 9 shall at all times be effective.
Prior to
such effectiveness, this Agreement may be terminated by any party by notice to
each of the other parties hereto, and any such termination shall be without
liability on the part of (a) the Company to any Underwriter, except that (solely
in the case where the Company has terminated this Agreement pursuant to this
Section 7) the Company shall be obligated to reimburse the expenses of the
Representative and the Underwriters pursuant to Sections 4 and 6 hereof, or (b)
any Underwriter to the Company except that the provisions of Section 8 and
Section 9 shall at all times be effective and shall survive such
termination.
(1) The
Company agrees to indemnify and hold harmless each Underwriter, its officers and
employees, and each person, if any, who controls any Underwriter within the
meaning of the Securities Act and the Exchange Act against any loss, claim,
damage, liability or expense, as incurred, to which such Underwriter or such
controlling person may become subject,
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under the
Securities Act, the Exchange Act or other federal or state statutory law or
regulation, or at common law or otherwise (including in settlement of any
litigation, if such settlement is effected with the written consent of the
Company), insofar as such loss, claim, damage, liability or expense (or actions
in respect thereof as contemplated below) arises out of or is based (i) upon any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, or any amendment thereto, including any information
deemed to be a part thereof pursuant to Rule 430A, Rule 430B and Rule 430C under
the Securities Act, or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements therein
not misleading; or (ii) upon any untrue statement or alleged untrue statement of
a material fact contained in any Issuer Free Writing Prospectus, any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; or (iii) in whole or in part upon any inaccuracy in
the representations and warranties of the Company contained herein; or (iv) in
whole or in part upon any failure of the Company to perform its obligations
hereunder or under law; or (v) upon any act or failure to act or any alleged act
or failure to act by any Underwriter in connection with, or relating in any
manner to, the Common Stock or the offering contemplated hereby, and which is
included as part of or referred to in any loss, claim, damage, liability or
action arising out of or based upon any matter covered by clause (i) or (ii)
above, provided that the Company shall not be liable under this clause (v) to
the extent that a court of competent jurisdiction shall have determined by a
final judgment that such loss, claim, damage, liability or action resulted
directly from any such acts or failures to act undertaken or omitted to be taken
by such Underwriter through its bad faith or willful misconduct; and to
reimburse each Underwriter and each such controlling person for any and all
expenses (including the fees and disbursements of counsel chosen by the
Representative) as such expenses are reasonably incurred by such Underwriter or
such controlling person in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or
action; provided, however, that the
foregoing indemnity agreement shall not apply to any loss, claim, damage,
liability or expense to the extent, but only to the extent, arising out of or
based upon any untrue statement or alleged untrue statement or omission or
alleged omission made in reliance upon and in conformity with written
information furnished to the Company by the Representative expressly for use in
the Registration Statement, any Issuer Free Writing Prospectus, any preliminary
prospectus or the Prospectus (or any amendment or supplement
thereto). The indemnity agreement set forth in this Section 8(a)(1)
shall be in addition to any liabilities that the Company may otherwise
have.
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Writing
Prospectus, any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto), or arises out of or is based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in the Registration
Statement, any Issuer Free Writing Prospectus, any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto), in reliance upon and in
conformity with written information furnished to the Company by the
Representative expressly for use therein; and to reimburse the Company, or any
such director, officer, or controlling person for any legal and other expense
reasonably incurred by the Company, or any such director, officer, or
controlling person in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or
action. The Company hereby acknowledges that the only information
that the Underwriters have furnished to the Company expressly for use in the
Registration Statement, any Issuer Free Writing Prospectus, any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) are the
statements set forth in the table in the first paragraph and in the Section
entitled “Stabilization” under the caption “Underwriting” in the preliminary
prospectus and the Prospectus; and the Underwriters confirm that such statements
are correct. The indemnity agreement set forth in this Section 8(b)
shall be in addition to any liabilities that each Underwriter may otherwise
have.
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be liable
for the expenses of more than one separate counsel (together with local
counsel), approved by the indemnifying party (the Representative in the case of
Section 8(b) and Section 9), representing the indemnified parties who are
parties to such action) or (ii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of the action, in each of
which cases the fees and expenses of counsel shall be at the expense of the
indemnifying party.
Section
9. Contribution. If the
indemnification provided for in Section 8 is for any reason held to be
unavailable to or otherwise insufficient to hold harmless an indemnified party
in respect of any losses, claims, damages, liabilities or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
paid or payable by such indemnified party, as incurred, as a result of any
losses, claims, damages, liabilities or expenses referred to therein (i) in such
proportion as is appropriate to reflect the relative benefits received by the
indemnifying parties on the one hand, and the indemnified parties, on the other
hand, from the offering of the Units pursuant to this Agreement or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the indemnifying
parties, on the one hand, and the indemnified parties, on the other hand, in
connection with the statements or omissions or inaccuracies in the
representations and warranties herein which resulted in such losses, claims,
damages, liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the indemnifying
parties, on the one hand, and the indemnified parties, on the other hand, in
connection with the offering of the Units pursuant to this Agreement shall be
deemed to be in the same respective proportions as the total net proceeds from
the offering of the Units pursuant to this Agreement (before deducting expenses)
received by the indemnifying parties, and the total underwriting discount
received by the indemnified parties, in each case as set forth on the front
cover page of the Prospectus bear to the aggregate initial public offering price
of the Units as set forth on such cover. The relative
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fault of
the indemnifying parties, on the one hand, and the indemnified parties, on the
other hand, shall be determined by reference to, among other things, whether any
such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact or any such inaccurate or alleged
inaccurate representation or warranty relates to information supplied by
indemnifying parties, on the one hand, or the indemnified parties, on the other
hand, and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The
amount paid or payable by a party as a result of the losses, claims, damages,
liabilities and expenses referred to above shall be deemed to include, subject
to the limitations set forth in Section 8(c), any legal or other fees or
expenses reasonably incurred by such party in connection with investigating or
defending any action or claim. The provisions set forth in Section
8(c) with respect to notice of commencement of any action shall apply if a claim
for contribution is to be made under this Section 9; provided, however, that no
additional notice shall be required with respect to any action for which notice
has been given under Section 8(c) for purposes of indemnification.
The
Company and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 9 were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to in this Section 9.
Notwithstanding the provisions of this Section
9, no Underwriter shall be required to contribute any amount in excess of the
underwriting commissions received by such Underwriter in connection with the
Units underwritten by it and distributed to the public. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Section 9 are several, and not joint,
in proportion to their respective underwriting commitments as set forth opposite
their names in Schedule A. For purposes of this Section 9, each
officer and employee of any Underwriter and each person, if any, who controls
any Underwriter within the meaning of the Securities Act and the Exchange Act
shall have the same rights to contribution as such Underwriter; and each
director of the Company, each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of the Securities Act and the Exchange Act shall have the same rights to
contribution as the Company.
Section
10. Default
of One or More of the Several Underwriters. If, on the First
Closing Date or each Subsequent Closing Date, as the case may be, any one or
more of the several Underwriters shall fail or refuse to purchase Units that it
or they have agreed to purchase hereunder on such date, and the aggregate number
of Units which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase does not exceed 10% of the aggregate number of the Units to
be purchased on such date, the other Underwriters shall be obligated, severally,
in the proportions that the number of Firm Units set forth opposite their
respective names on Schedule A bears to the aggregate number of Firm Units set
forth opposite the names of all such non-defaulting Underwriters, or in such
other proportions as may be specified by the Representative with the consent of
the non-defaulting Underwriters, to purchase the Units which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
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date. If,
on the First Closing Date or each Subsequent Closing Date, as the case may be,
any one or more of the Underwriters shall fail or refuse to purchase Units and
the aggregate number of Units with respect to which such default occurs exceeds
10% of the aggregate number of Units to be purchased on such date, and
arrangements satisfactory to the Representative and the Company for
the purchase of such Units are not made within 48 hours after such default, this
Agreement shall terminate without liability of any party to any other party
except that the provisions of Section 4, Section 6, Section 8 and Section 9
shall at all times be effective and shall survive such
termination. In any such case either the Representative or the
Company shall have the right to postpone the First Closing Date or each
Subsequent Closing Date, as the case may be, but in no event for longer than
seven days in order that the required changes, if any, to the Registration
Statement and the Prospectus or any other documents or arrangements may be
effected.
Section
11. Termination of this
Agreement. Prior to the
First Closing Date and, with respect to Optional Units, each Subsequent Closing
Date, whether before or after notification by the Commission to the Company of
the effectiveness of the Registration Statement under the Securities Act, this
Agreement may be terminated by the Representative by notice given to the Company
if at any time (i) trading or quotation in any of the Company’s securities shall
have been suspended or limited by the Commission or by the OTCBB; (ii) a general
banking moratorium shall have been declared by any of federal, New York or
Nevada authorities; (iii) there shall have occurred any outbreak or escalation
of national or international hostilities or any crisis or calamity, or any
change in the United States or international financial markets, or any
substantial change or development involving a prospective substantial change in
United States’ or international political, financial or economic conditions
that, in the judgment of the Representative is material and adverse and makes it
impracticable to market the Units in the manner and on the terms described in
the Prospectus or to enforce contracts for the sale of securities; or (iv) in
the judgment of the Representative there shall have occurred any Material
Adverse Change (regardless of whether any loss associated with such Material
Adverse Change shall have been insured). Any termination pursuant to
this Section 11 shall be without liability on the part of (a) the Company to any
Underwriter, except that the Company shall be obligated to reimburse the
expenses of the Representative and the Underwriters pursuant to Section 6
hereof, (b) any Underwriter to the Company, or (c) of any party hereto to any
other party except that the provisions of Section 8 and Section 9 shall at all
times be effective and shall survive such termination.
Section
12. No
Advisory or Fiduciary Responsibility. The Company acknowledges
and agrees that: (i) the purchase and sale of the Units pursuant to this
Agreement, including the determination of the public offering price of the Units
and any related discounts and commissions, is an arm’s-length commercial
transaction between the Company, on the one hand, and the several Underwriters,
on the other hand, and the Company is capable of evaluating and understanding
and understands and accepts the terms, risks and conditions of the transactions
contemplated by this Agreement; (ii) in connection with each transaction
contemplated hereby and the process leading to such transaction each Underwriter
is and has been acting solely as a principal and is not the financial advisor,
agent or fiduciary of the Company or its affiliates, stockholders, creditors or
employees or any other party; (iii) no Underwriter has assumed and will not
assume an advisory, agency or fiduciary responsibility in favor of the Company
with respect to any of the transactions contemplated hereby or the process
leading thereto
25
(irrespective
of whether such Underwriter has advised or is currently advising the Company on
other matters) and no Underwriter has an obligation to the Company with respect
to the offering contemplated hereby except the obligations expressly set forth
in this Agreement; (iv) the Underwriters and their respective affiliates may be
engaged in a broad range of transactions that involve interests that differ from
those of the Company and that the several Underwriters have no obligation to
disclose any of such interests by virtue of any advisory, agency or fiduciary
relationship; and (v) the Underwriters have not provided any legal, accounting,
regulatory or tax advice with respect to the offering contemplated hereby and
the Company has consulted its own legal, accounting, regulatory and tax advisors
to the extent it deemed appropriate. The Company hereby waives and
releases, to the fullest extent permitted by law, any claims that the Company
may have against the several Underwriters with respect to any breach or alleged
breach of agency or fiduciary duty.
This
Agreement supersedes all prior agreements and understandings (whether written or
oral) between the Company and the several Underwriters, or any of them, with
respect to the subject matter hereof.
Section
13. Representations and Indemnities to
Survive Delivery. The respective
indemnities, agreements, representations, warranties and other statements of the
Company, of its officers, and of the several Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation made by or on behalf of any Underwriter or the Company or any
of its or their partners, officers or directors or any controlling person, as
the case may be, and will survive delivery of and payment for the Units sold
hereunder and any termination of this Agreement.
Section
14. Notices. All
communications hereunder shall be in writing and shall be mailed, hand delivered
or telecopied and confirmed to the parties hereto as follows:
If to the
Representative:
Xxxxxxx Investment Company, Inc.
000 XX Xxxxx Xxxxxxx, Xxxxx
000
Xxxxxxxx,
XX 00000
Facsimile: (000)
000-0000
Attention: Syndicate
Department
with
a copy to:
Holland & Knight LLP
000 XX Xxxxx Xxxxxx, Xxxxx
0000
Xxxxxxxx,
XX 00000
Facsimile: (000)
000-0000
Attention: Xxxx X. xxx
Xxxxxx
If to the
Company:
Healthy
Fast Food, Inc.
26
0000
Xxxxxxxx Xxxxxxx, Xxxxx X
Xxxxxxxxx,
XX 00000
Facsimile: (000)
000-0000
Attention: Xxxxx
X. Xxxxxxxxxx
with
a copy to:
Xxxx Xxxx
Xxxx Xxxxxxxxxx & Xxxxxxxxx, P.C.
000
Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx,
XX 00000
Facsimile: (000)
000-0000
Attention: Xxx
X. Xxxxxxxxx
Any party
hereto may change the address for receipt of communications by giving written
notice to the others.
Section
17. Governing Law Provisions. THIS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE
STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH
STATE.
27
and
irrevocably and unconditionally waive and agree not to plead or claim in any
such court that any such suit, action or other proceeding brought in any such
court has been brought in an inconvenient forum.
Each of
the parties hereto acknowledges that it is a sophisticated business person who
was adequately represented by counsel during negotiations regarding the
provisions hereof, including, without limitation, the indemnification provisions
of Section 8 and the contribution provisions of Section 9, and is fully informed
regarding said provisions. Each of the parties hereto further
acknowledges that the provisions of Sections 8 and 9 hereto fairly allocate the
risks in light of the ability of the parties to investigate the Company, its
affairs and its business in order to assure that adequate disclosure has been
made in the Registration Statement, any preliminary prospectus and the
Prospectus (and any amendments and supplements thereto), as required by the
Securities Act and the Exchange Act.
The
respective indemnities, contribution agreements, representations, warranties and
other statements of the Company and the several Underwriters set forth in or
made pursuant to this Agreement shall remain operative and in full force and
effect, regardless of (i) any investigation, or statement as to the results
thereof, made by or on behalf of any Underwriter, the officers or employees of
any Underwriter, any person controlling any Underwriter, the Company, the
officers or employees of the Company, or any person controlling the Company,
(ii) acceptance of the Units and payment for them hereunder and (iii)
termination of this Agreement.
Except as
otherwise provided, this Agreement has been and is made solely for the benefit
of and shall be binding upon the Company, the Underwriters, the Underwriters'
officers and employees, any controlling persons referred to herein, the
Company’s directors and the Company’s officers who sign the Registration
Statement and their respective successors and assigns, all as and to the
extent provided in this Agreement, and no other person shall acquire
or have any right under or by virtue of this Agreement. The term
“successors and
assigns” shall not include a purchaser of any of the Units from any of
the several Underwriters merely because of such purchase.
28
If the
foregoing is in accordance with your understanding of our agreement, kindly sign
and return to the Company the enclosed copies hereof, whereupon this instrument,
along with all counterparts hereof, shall become a binding agreement in
accordance with its terms.
Very
truly yours,
HEALTHY
FAST FOOD, INC.
By:
Name: Xxxxx X.
Xxxxxxxxxx
Title: President
The
foregoing Underwriting Agreement is hereby confirmed and accepted by the
Representative as of the date first above written.
XXXXXXX
INVESTMENT COMPANY, INC.
Acting as
the Representative of the Several
Underwriters
named in the attached Schedule A.
By:
Name:
Title:
#
9073595_v3
29
SCHEDULE
A
|
Underwriters
|
Number
of Firm Units to be Purchased
|
|
Xxxxxxx
Investment Company, Inc.
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
3,700,000
|
SCH.
A-1
SCHEDULE
B
Issuer Free Writing
Prospectus
SCH.
B-1
Schedule
C
Price per
Unit to public: $____
Underwriting
discounts and commissions per Unit: $____
Offering
proceeds to the Company, before expenses: $____
Closing
Date: ,
2010
SCH.
C-1
EXHIBIT
A
Opinion
of counsel for the Company
to be delivered pursuant to
Section 5(d) of the Underwriting Agreement.
References
to the Prospectus in this Exhibit A include any supplements thereto at the First
Closing Date and, if applicable, each Subsequent Closing
Date. Capitalized terms used and not defined herein shall have the
meanings ascribed to them in the Underwriting Agreement.
(i) The
Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Nevada.
(ii) The
Company has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Disclosure Package
and the Prospectus and to enter into and perform its obligations under the
Underwriting Agreement.
(iii) The
Company is duly qualified as a foreign corporation to transact business and is
in good standing in each other jurisdiction in which such qualification is
required, except for such jurisdictions where the failure to so qualify or to be
in good standing would not, individually or in the aggregate, result in a
Material Adverse Change.
(iv) To
the best of such counsel’s knowledge, the Company does not own an equity
interest in any other entity.
(v) The
authorized, issued and outstanding capital stock of the Company (including the
Common Stock) conforms to the descriptions thereof set forth in the Disclosure
Package and the Prospectus. All of the outstanding shares of Common
Stock have been duly authorized and validly issued, are fully paid and
nonassessable and, to the best of such counsel’s knowledge, have been issued in
compliance with the registration and qualification requirements of federal and
state securities laws. The form of certificate used to evidence the
Common Stock complies with all applicable requirements of the charter and bylaws
of the Company and the Nevada Corporation Law of the State of
Nevada. The description of the Company’s stock option, stock bonus
and other stock plans or arrangements, and the options or other rights granted
and exercised thereunder, set forth in the Disclosure Package and the Prospectus
accurately and fairly presents the information required to be shown with respect
to such plans, arrangements, options and rights.
(vi) No
stockholder of the Company or any other person has any preemptive right, right
of first refusal or other similar right to subscribe for or purchase securities
of the Company arising (i) by operation of the charter or bylaws of the Company
or the Nevada Corporation Law of the State of Nevada or (ii) to the best
knowledge of such counsel, otherwise.
(vii) The
Underwriting Agreement has been duly authorized, executed and delivered by the
Company.
(viii) The Common Stock
included in the Units to be purchased by the Underwriters from the Company
(including units purchasable on exercise of the Underwriters' overallotment
option and the Representative’s Warrants) has been duly authorized and reserved
for issuance
EX.
A-1
and sale
pursuant to this Agreement and, in the case of Common Stock issuable on exercise
of the Representative’s Warrants, the terms thereof and, when so issued and
delivered by the Company, will be validly issued, fully paid and
nonassessable. The Class C Warrants included in the Units to be
purchased by the Underwriters from the Company have been duly and validly
authorized by all required corporate actions and will, when issued and delivered
by the Company pursuant to this Agreement, be validly executed and delivered by,
and will be valid and binding agreements of, the Company, enforceable in
accordance with their terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights and remedies of creditors or by general
equitable principles. The Underwriter’s Warrants have been duly and
validly authorized by all required corporate actions and will, when issued and
delivered by the Company pursuant to this Agreement, be validly executed and
delivered by, and will be valid and binding agreements of, the Company,
enforceable in accordance with their terms, except as the enforcement thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting the rights and remedies of creditors or by
general equitable principles. The Common Stock issuable on exercise
of Class C Warrants has been duly authorized and reserved for issuance and sale
pursuant to the terms of such Class C Warrants and, when issued and delivered by
the Company pursuant to such Warrants, will be validly issued, fully paid and
nonassessable.
(ix) The
Warrant Agreement has been duly authorized by the Company. When duly
executed, authenticated, issued and delivered as contemplated in the
Registration Statement and the Warrant Agreement, the Warrant Agreement will
constitute the legally binding agreement of the Company, enforceable against it
in accordance with its terms, except as the enforcement thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights and remedies of creditors or by general
equitable principles.
(ix) The
Registration Statement and the Rule 462(b) Registration Statement, if any, has
been declared effective by the Commission under the Securities
Act. To the best knowledge of such counsel, no stop order suspending
the effectiveness of either of the Registration Statement or the Rule 462(b)
Registration Statement, if any, has been issued under the Securities Act and no
proceedings for such purpose have been instituted or are pending or are
contemplated or threatened by the Commission. Any required filing of
the Disclosure Package and the Prospectus and any supplement thereto pursuant to
Rule 424(b) under the Securities Act has been made in the manner and within the
time period required by such Rule 424(b).
(x) The
Registration Statement, including any Rule 462(b) Registration Statement, the
Prospectus, and each amendment or supplement to the Registration Statement and
the Prospectus, and each document deemed to be part of the Disclosure Package,
as of their respective effective or issue dates (other than the financial
statements and supporting schedules included therein or in exhibits to or
excluded from the Registration Statement, as to which no opinion need be
rendered) comply as to form in all material respects with the applicable
requirements of the Securities Act.
(xi) The
Units, the Common Stock and the Class C Warrants have been approved for
quotation on the OTC Bulletin Board.
EX.
A-2
(xiv) The
statements (i) in each of the Disclosure Package and the Prospectus under the
captions “Certain Relationships and Related Transactions,” “Description of
Securities” and “Shares Eligible for Future Sale”, (ii) under the caption
“Indemnification of Officers and Directors” in Item 24 of the Registration
Statement, (iii) under the caption “Recent Sales of Unregistered Securities" in
Item 26 of the Registration Statement, insofar as such statements constitute
matters of law, legal conclusions or summaries of legal matters or documents or
the Company’s charter or by-law provisions, have been reviewed by such counsel
and fairly present and summarize, in all material respects, the matters referred
to therein.
(xv) To
the best knowledge of such counsel, there are no legal or governmental actions,
suits or proceedings pending or threatened which are required to be disclosed in
the Registration Statement or the Disclosure Package, other than those disclosed
therein.
(xvi) To
the best knowledge of such counsel, there are no Existing Instruments required
to be described or referred to in the Registration Statement or to be filed as
exhibits thereto other than those described or referred to therein or filed as
exhibits thereto; and the descriptions thereof and references thereto are
correct in all material respects.
(xvii) No
consent, approval, authorization or other order of, or registration or filing
with, any court or other governmental authority or agency, is required for the
Company’s execution, delivery and performance of the Underwriting Agreement and
consummation of the transactions contemplated thereby and by the Prospectus,
except as required under the Securities Act, the applicable laws of any foreign
jurisdiction, applicable state securities or blue sky laws and from the
FINRA.
(xviii) The
execution and delivery of the Underwriting Agreement by the Company and the
performance by the Company of its obligations thereunder (other than performance
by the Company of its obligations under the indemnification section of the
Underwriting Agreement, as to which no opinion need be rendered) (i) have been
duly authorized by all necessary corporate action on the part of the Company;
(ii) will not result in any violation of the provisions of the charter or bylaws
of the Company; (iii) will not (A) constitute a breach of, or Default under any
Existing Instrument, or (B) result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company pursuant to, in
the case of each of clauses (A) and (B), any Existing Instrument filed as an
exhibit to the Registration Statement or, to the best knowledge of such counsel,
any other material Existing Instrument; or (iv) to the best knowledge of such
counsel, will not result in any violation of any law, administrative regulation
or administrative or court decree applicable to the Company.
(xix) The
Company is not, and after receipt of payment for the Units and the application
of the proceeds thereof as contemplated under the caption “Use of Proceeds” in
the Prospectus and in the Disclosure Package will not be, an “investment company”
within the meaning of Investment Company Act.
(xx) To
the best knowledge of such counsel, there are no persons with registration or
other similar rights to have any equity or debt securities registered for sale
under the Registration Statement or included in the offering contemplated by the
Underwriting Agreement, except for such rights as have been duly
waived.
EX.
A-3
(xxi) To
the best knowledge of such counsel, the Company is not in violation of its
charter or bylaws or any law, administrative regulation or administrative or
court decree applicable to the Company or is in Default in the performance or
observance of any obligation, agreement, covenant or condition contained in any
material Existing Instrument, except in each such case for such violations or
Defaults as would not, individually or in the aggregate, result in a Material
Adverse Change.
In
addition, such counsel shall state that they have participated in conferences
with officers and other representatives of the Company, representatives of the
independent public or certified public accountants for the Company and with
representatives of the Underwriter at which the contents of the Registration
Statement and the Prospectus, and any supplements or amendments thereto, and
related matters were discussed and, although such counsel is not passing upon
and does not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement or the
Prospectus, including the documents incorporated by reference therein (other
than as specified above), and any supplements or amendments thereto, on the
basis of the foregoing, nothing has come to their attention which has caused
them to believe that (i) either the Registration Statement or any amendments
thereto, at the time the Registration Statement or such amendments became
effective, contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading; (ii) the Prospectus, as of its date or at the
First Closing Date or each Subsequent Closing Date, as the case may be,
contained an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; or (iii) the items
specified in Schedule I, consisting of those included in the Disclosure Package,
contained any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in the light of
circumstances under which they were made, not misleading (it being understood
that such counsel need express no belief as to the financial statements or
schedules or other financial data derived therefrom, included or incorporated by
reference in the Registration Statement or the Prospectus or any amendments or
supplements thereto).
In
rendering such opinion, such counsel may rely (A) as to matters involving the
application of laws of any jurisdiction other than the Nevada Corporation Law of
the State of Nevada, or the federal law of the United States, to the extent they
deem proper and specified in such opinion, upon the opinion (which shall be
dated the First Closing Date or each Subsequent Closing Date, as the case may
be, shall be satisfactory in form and substance to the Underwriter, shall
expressly state that the Underwriter may rely on such opinion as if it were
addressed to it and shall be furnished to the Underwriter) of other counsel of
good standing whom they believe to be reliable and who are satisfactory to
counsel for the Underwriter; provided, however, that such counsel shall further
state that they believe that they and the Underwriter are justified in relying
upon such opinion of other counsel, and (B) as to matters of fact, to the extent
they deem proper, on certificates of responsible officers of the Company and
public officials.
EX.
A-4
Exhibit
B
Form
of Lock-Up Agreement
EX. B-1