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EXHIBIT 1
________ Shares
CONCORD CAMERA CORP.
Common Stock
FORM OF UNDERWRITING AGREEMENT
St. Petersburg, Florida
______________, 2000
Raymond James & Associates, Inc.
As Representative of the Several Underwriters
c/o Raymond James & Associates, Inc.
880 Carillon Parkway
St. Petersburg, Florida 33716
Ladies and Gentlemen:
Concord Camera Corp., a New Jersey corporation (the
"Company"), proposes, subject to the terms and conditions stated herein, to
issue and sell an aggregate of __________ shares of common stock, no par value
per share (the "Common Stock"), of the Company, to the several Underwriters
named in Schedule I hereto (the "Underwriters"). Such __________ shares to be
sold by the Company are hereinafter referred to as the "Firm Shares"). In
addition, the Company has agreed to sell to the Underwriters, upon the terms and
conditions set forth herein, up to an additional _______ shares (the "Additional
Shares") of the Common Stock to cover over-allotments by the Underwriters, if
any. The Firm Shares and the Additional Shares are hereinafter collectively
referred to as the "Shares."
The Company wishes to confirm as follows its agreement with
you and the other several Underwriters, on whose behalf you are acting, in
connection with the purchases of the Shares from the Company.
1. Registration Statement and Prospectus. The Company has
prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Act"), a registration statement on Form S-3 (File No.
333-_____), including a prospectus subject to completion, relating to the
Shares. Such registration statement, as amended at the time when it becomes
effective and as thereafter amended by any post-effective amendment, is referred
to in this Agreement as the "Registration Statement." The prospectus in the form
included in the Registration Statement, or, if the prospectus included in the
Registration Statement omits certain information in reliance upon Rule 430A
under the Act and such information is thereafter included in a prospectus filed
with the Commission pursuant to Rule 424(b) under the Act or as part of a
post-effective amendment to the Registration Statement after the Registration
Statement becomes effective, the prospectus as so filed, is referred to in this
Agreement as the "Prospectus." If the Company elects to rely on Rule 434 under
the Act, all references to the Prospectus shall be deemed to include, without
limitation, the form of prospectus and the term sheet contemplated by Rule 434,
taken together, provided to the Underwriters by the Company in reliance on Rule
434 under the Act (the "Rule 434 Prospectus"). If the Company files another
registration statement with the Commission to register a portion of the Shares
pursuant to Rule 462(b) under the Act (the "Rule 462 Registration Statement"),
then any reference to "Registration Statement" herein shall be deemed to include
the registration statement on Form S-3 (File No. 333-_____) and the Rule 462
Registration Statement, as each such registration statement may be amended
pursuant to the Act. The prospectus subject to completion in the form included
in the Registration Statement at the time of the initial filing of such
Registration Statement with the Commission and as such prospectus is amended
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from time to time until the date of the Prospectus are collectively referred to
in this Agreement as the "Prepricing Prospectus." Any reference in this
Agreement to the Registration Statement, any Prepricing Prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Act, as of the date
of the Registration Statement, such Prepricing Prospectus or the Prospectus, as
the case may be, and any reference to any amendment or supplement to the
Registration Statement, any Prepricing Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed after such date under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") which, upon
filing, are incorporated by reference therein, as required by paragraph (b) of
Item 12 of Form S-3. As used herein, the term "Incorporated Documents" means the
documents which at the time are incorporated by reference in the Registration
Statement, any Prepricing Prospectus, the Prospectus, or any amendment or
supplement thereto.
2. Agreements to Sell and Purchase. The Company hereby agrees
to sell the Firm Shares to the Underwriters and, upon the basis of the
representations, warranties and agreements of the Company herein contained and
subject to all the terms and conditions set forth herein, each Underwriter
agrees, severally and not jointly, to purchase from the Company at a purchase
price of $_____ per Share (the "purchase price per Share"), the number of Firm
Shares set forth opposite the name of such Underwriter in Schedule I hereto.
The Company hereby also agrees to sell to the Underwriters,
and upon the basis of the representations, warranties and agreements of the
Company herein contained and subject to all the terms and conditions set forth
herein, the Underwriters shall have the right for 30 days from the date of the
Prospectus to purchase from the Company up to _______ Additional Shares at the
purchase price per Share for the Firm Shares. The Additional Shares may be
purchased solely for the purpose of covering over-allotments, if any, made in
connection with the offering of the Firm Shares. If any Additional Shares are to
be purchased, each Underwriter, severally and not jointly, agrees to purchase
the number of Additional Shares (subject to such adjustments as you may
determine to avoid fractional shares) which bears the same proportion to the
total number of Additional Shares to be purchased by the Underwriters as the
number of Firm Shares set forth opposite the name of such Underwriter in
Schedule I hereto bears to the total number of Firm Shares.
3. Terms of Public Offering. The Company has been advised by
you that the Underwriters propose to make a public offering of their respective
portions of the Shares as soon after the Registration Statement and this
Agreement have become effective as in your judgment is advisable and initially
to offer the Shares upon the terms set forth in the Prospectus.
4. Delivery of the Shares and Payment Therefor. Delivery to
the Underwriters of the Firm Shares and payment therefor shall be made at the
offices of Raymond James & Associates, Inc., 880 Carillon Parkway, St.
Petersburg, Florida, at 10:00 a.m., St. Petersburg, Florida time, on __________,
2000 (the "Closing Date"). The place of closing for the Firm Shares and the
Closing Date may be varied by agreement between the Representatives and the
Company.
Delivery to the Underwriters of and payment for any Additional
Shares to be purchased by the Underwriters shall be made at the offices of
Raymond James & Associates, Inc., 880 Carillon Parkway, St. Petersburg, Florida,
at 10:00 a.m., St. Petersburg, Florida time, on such date or dates (the
"Additional Closing Date") (which may be the same as the Closing Date but shall
in no event be earlier than the Closing Date nor earlier than three nor later
than ten business days after the giving of the notice hereinafter referred to)
as shall be specified in a written notice from you on behalf of the Underwriters
to the Company of the Underwriters' determination to purchase a number,
specified in such notice, of Additional Shares. Such notice may be given to the
Company by you at any time within 30 days after the date of the Prospectus. The
place of closing for the Additional Shares and the Additional Closing Date may
be varied by agreement between you and the Company.
Certificates for the Firm Shares and for any Additional Shares
to be purchased hereunder shall be registered in such names and in such
denominations as you shall request prior to 1:00 p.m., St. Petersburg, Florida
time, not later than the second full business day preceding the Closing Date or
the Additional Closing Date, as the case may be. Such certificates shall be made
available to you in St. Petersburg, Florida for inspection and packaging not
later than 9:30 a.m., St. Petersburg, Florida time, on the business day
immediately preceding the Closing Date or the Additional Closing Date, as the
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case may be. The certificates evidencing the Firm Shares and any Additional
Shares to be purchased hereunder shall be delivered to you on the Closing Date
or the Additional Closing Date, as the case may be, against payment of the
purchase price therefor by wire transfer immediately available funds to the
account specified in writing, not later than the close of business two days next
preceding the Closing Date or the Additional Closing Date, as the case may be.
Payment for the Firm Shares sold by the Company hereunder shall be delivered by
the Representatives to the Company.
5. Covenants and Agreements of the Company. The Company
covenants and agrees with the several Underwriters as follows:
(a) The Company will use its best efforts to cause the
Registration Statement and any amendments thereto to become
effective, if it has not already become effective, and will
advise you promptly and, if requested by you, will confirm
such advice in writing (i) when the Registration Statement has
become effective and when any post-effective amendment thereto
becomes effective, (ii) if Rule 430A under the Act is
employed, when the Prospectus has been timely filed pursuant
to Rule 424(b) under the Act, (iii) of any request by the
Commission for amendments or supplements to the Registration
Statement, any Prepricing Prospectus or the Prospectus or for
additional information, (iv) of the issuance by the Commission
of any stop order suspending the effectiveness of the
Registration Statement or of the suspension of qualification
of the Shares for offering or sale in any jurisdiction or the
initiation of any proceeding for such purposes and (v) within
the period of time referred to in Section 5(e) below, of any
change in the Company's condition (financial or other),
business, prospects, properties, net worth or results of
operations, or of any other event that comes to the attention
of the Company, that results in the Registration Statement or
the Prospectus (as then amended or supplemented) containing an
untrue statement of a material fact or omitting to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading in any material
respect, or of the necessity to amend or supplement the
Prospectus (as then amended or supplemented) to comply with
the Act or any other law. If at any time the Commission shall
issue any stop order suspending the effectiveness of the
Registration Statement, the Company will make every reasonable
effort to obtain the withdrawal or lifting of such order at
the earliest possible time. If the Company elects to rely on
Rule 434 under the Act, the Company will provide the
Underwriters with copies of the form of Rule 434 Prospectus
(including copies of a term sheet that complies with the
requirements of Rule 434 under the Act), in such number as the
Underwriters may reasonably request, and file with the
Commission in accordance with Rule 424(b) of the Act the form
of Prospectus complying with Rule 434(b)(2) of the Act before
the close of business on the first business day immediately
following the date hereof. If the Company elects not to rely
on Rule 434 under the Act, the Company will provide the
Underwriters with copies of the form of Prospectus, in such
number as the Underwriters may reasonably request, and file
with the Commission such Prospectus in accordance with Rule
424(b) of the Act before the close of business on the first
business day immediately following the date hereof.
(b) The Company will furnish to you, without charge, two
signed duplicate originals of the Registration Statement as
originally filed with the Commission and of each amendment
thereto, including financial statements and all exhibits
thereto, and will also furnish to you, without charge, such
number of conformed copies of the Registration Statement as
originally filed and of each amendment thereto as you may
reasonably request.
(c) The Company will not file any Rule 462(b) Registration
Statement or any amendment to the Registration Statement or
make any amendment or supplement to the Prospectus unless (i)
you shall have previously been advised thereof and been given
a reasonable opportunity to review such filing, amendment or
supplement, and (ii) you have not reasonably objected to such
filing, amendment or supplement after being so advised.
(d) Prior to the execution and delivery of this Agreement,
the Company has delivered or will deliver to you, without
charge, in such quantities as you have requested or may
hereafter reasonably request, copies of each form of the
Prepricing Prospectus. Consistent with the provisions of
Section 5(e) hereof, the Company consents to the use, in
accordance with the provisions of the Act and with the
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securities or Blue Sky laws of the jurisdictions in which the
Shares are offered by the several Underwriters and by dealers,
prior to the date of the Prospectus, of each Prepricing
Prospectus so furnished by the Company.
(e) As soon after the execution and delivery of this
Agreement as is practicable and thereafter from time to time
for such period as in the reasonable opinion of counsel for
the Underwriters a prospectus is required by the Act to be
delivered in connection with sales by any Underwriter or a
dealer, and for so long a period as you may request for the
distribution of the Shares, the Company will deliver to each
Underwriter and each dealer, without charge, as many copies of
the Prospectus (and of any amendment or supplement thereto) as
they may reasonably request. The Company consents to the use
of the Prospectus (and of any amendment or supplement thereto)
in accordance with the provisions of the Act and with the
securities or Blue Sky laws of the jurisdictions in which the
Shares are offered by the several Underwriters and by all
dealers to whom Shares may be sold, both in connection with
the offering and sale of the Shares and for such period of
time thereafter as the Prospectus is required by the Act to be
delivered in connection with sales by any Underwriter or
dealer. If at any time prior to the later of (i) the
completion of the distribution of the Shares pursuant to the
offering contemplated by the Registration Statement or (ii)
the expiration of prospectus delivery requirements with
respect to the Shares under Section 4(3) of the Act and Rule
174 thereunder, any event shall occur that in the judgment of
the Company or in the opinion of counsel for the Underwriters
is required to be set forth in the Prospectus (as then amended
or supplemented) or should be set forth therein in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it is
necessary to supplement or amend the Prospectus to comply with
the Act or any other law, the Company will forthwith prepare
and, subject to Sections 5(a) and 5(c) hereof, file with the
Commission and use its best efforts to cause to become
effective as promptly as possible an appropriate supplement or
amendment thereto, and will furnish to each Underwriter who
has previously requested Prospectuses, without charge, a
reasonable number of copies thereof.
(f) The Company will cooperate with you and counsel for the
Underwriters in connection with the registration or
qualification of the Shares for offering and sale by the
several Underwriters and by dealers under the securities or
Blue Sky laws of such jurisdictions as you may reasonably
designate and will file such consents to service of process or
other documents as may be reasonably necessary in order to
effect and maintain such registration or qualification for so
long as required to complete the distribution of the Shares;
provided that in no event shall the Company be obligated to
qualify to do business in any jurisdiction where it is not now
so qualified or to take any action which would subject it to
general service of process in suits, other than those arising
out of the offering or sale of the Shares, in any jurisdiction
where it is not now so subject. In the event that the
qualification of the Shares in any jurisdiction is suspended,
the Company shall so advise you promptly in writing.
(g) The Company will make generally available to its
security holders a consolidated earnings statement (in form
complying with the provisions of Rule 158), which need not be
audited, covering a twelve-month period commencing after the
effective date of the Registration Statement and the Rule 462
Registration Statement, if any, and ending not later than 15
months thereafter, as soon as practicable after the end of
such period, which consolidated earnings statement shall
satisfy the provisions of Section 11(a) of the Act.
(h) During the period ending five years from the date
hereof, the Company will furnish to you and, upon your
request, to each of the other Underwriters, (i) as soon as
available, a copy of each proxy statement, quarterly or annual
report or other report of the Company mailed to stockholders
or filed with the Commission, the National Association of
Securities Dealers, Inc. (the "NASD") or The Nasdaq Stock
Market or any national securities exchange and (ii) from time
to time such other information concerning the Company as you
may reasonably request.
(i) If this Agreement shall terminate or shall be
terminated after execution pursuant to any provision hereof
(except pursuant to a termination under Section 11 hereof) or
if this Agreement shall be terminated by the Underwriters
because of any inability, failure or refusal on the part of
the Company to perform in all material respects any agreement
herein or to comply in all material respects with any of the
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terms or provisions hereof or to fulfill in all material
respects any of the conditions of this Agreement, the Company
agrees to reimburse you and the other Underwriters for all
out-of-pocket expenses (including travel expenses and
reasonable fees and expenses of counsel for the Underwriters
but excluding wages and salaries paid by you) reasonably
incurred by you in connection herewith.
(j) The Company will apply the net proceeds from the sale
of the Shares to be sold by it hereunder in accordance in all
material respects with the statements under the caption "Use
of Proceeds" in the Prospectus.
(k) If Rule 430A under the Act is employed, the Company
will timely file the Prospectus pursuant to Rule 424(b) under
the Act.
(l) For a period of 90 days after the date of the
Prospectus first filed pursuant to Rule 424(b) under the Act,
without your prior written consent, the Company will not,
directly or indirectly, issue, sell, offer or contract to sell
or otherwise dispose of or transfer any shares of Common Stock
or securities convertible into or exchangeable or exercisable
for shares of Common Stock (collectively, "Company
Securities") or any rights to purchase Company Securities,
except to the Underwriters pursuant to this Agreement and
except for grant of options pursuant to the Company's
Incentive Plan (the "Incentive Plan"), or options which have
been not been granted under the Incentive Plan, but have been
registered on Form S-8 under the Act.
(m) Prior to the Closing Date or the Additional Closing
Date, as the case may be, the Company will furnish to you, as
promptly as possible, copies of any unaudited interim
consolidated financial statements of the Company and its
subsidiaries for any period subsequent to the periods covered
by the financial statements appearing in the Prospectus.
(n) The Company will comply with all provisions of any
undertakings contained in the Registration Statement.
(o) The Company will not at any time, directly or
indirectly take any action designed, or which might reasonably
be expected to cause or result in, or which will constitute,
stabilization or manipulation of the price of the shares of
Common Stock to facilitate the sale or resale of any of the
Shares.
(p) The Company will timely file with the National
Association of Securities Dealers Automated Quotation National
Market System ("Nasdaq/NMS") all documents and notices
required by the Nasdaq/NMS of companies that have or will
issue securities that are traded in the over-the-counter
market and quotations for which are reported by the
Nasdaq/NMS.
6. Representations and Warranties of the Company. The Company
hereby represents and warrants to each Underwriter on the date hereof, and shall
be deemed to represent and warrant to each Underwriter on the Closing Date and
the Additional Closing Date, that:
(a) The Company satisfies all of the requirements of the
Act for use of Form S-3 for the offering of Shares
contemplated hereby. Each Prepricing Prospectus included as
part of the Registration Statement as originally filed or as
part of any amendment or supplement thereto, or filed pursuant
to Rule 424(a) under the Act, complied when so filed in all
material respects with the provisions of the Act, except that
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this representation and warranty does not apply to statements
in or omissions from such Pre-pricing Prospectus (or any
amendment or supplement thereto) made in reliance upon and in
conformity with information relating to any Underwriter
furnished to the Company in writing by or on behalf of any
Underwriter through you expressly for use therein. The
Commission has not issued any order preventing or suspending
the use of any Prepricing Prospectus.
(b) The Registration Statement (including any Rule 462
Registration Statement), in the form in which it becomes
effective and also in such form as it may be when any
post-effective amendment thereto shall become effective, and
the Prospectus, and any supplement or amendment thereto when
filed with the Commission under Rule 424(b) under the Act,
will comply in all material respects with the provisions of
the Act and will not at any such times contain an 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, except that this
representation and warranty does not apply to statements in or
omissions from the Registration Statement or the Prospectus
(or any amendment or supplement thereto) made in reliance upon
and in conformity with information relating to any Underwriter
furnished to the Company in writing by or on behalf of any
Underwriter through you expressly for use therein.
(c) The capitalization of the Company is and will be as set
forth in the Prospectus as of the date set forth therein. All
the outstanding shares of Common Stock of the Company have
been, and as of the Closing Date will be, duly authorized and
validly issued, are fully paid and nonassessable and are free
of any preemptive or similar rights; except as set forth in
the Prospectus, the Company is not a party to or bound by any
outstanding options, warrants, or similar rights to subscribe
for, or contractual obligations to issue, sell, transfer or
acquire, any of its capital stock or any securities
convertible into or exchangeable for any of such capital
stock; the Shares to be issued and sold to the Underwriters by
the Company hereunder have been duly authorized and, when
issued and delivered to the Underwriters against payment
therefor in accordance with the terms hereof will be validly
issued, fully paid and nonassessable and free of any
preemptive or similar rights or claims, encumbrances, liens or
defects in title; the capital stock of the Company conforms to
the description thereof in the Registration Statement and the
Prospectus (or any amendment or supplement thereto). The form
of certificates for the Shares conform to the requirements of
the New Jersey Business Corporation Act (the "NJBCA").
(d) Each of the Company and its subsidiaries is a
corporation or entity duly organized and validly existing as a
corporation or entity in good standing under the laws of the
jurisdiction of its formation with full power and authority to
own, lease and operate its properties and to conduct its
business as presently conducted and as described in the
Registration Statement and the Prospectus (and any amendment
or supplement thereto), and is duly registered and qualified
to conduct its business and is in good standing in each
jurisdiction or place where the nature of its properties or
the conduct of its business requires such registration or
qualification, except where the failure to so register or
qualify does not have a material adverse effect on the
condition (financial or other), business, properties, net
worth, results of operations or prospects of the Company and
its subsidiaries (a "Material Adverse Effect").
(e) All of the issued shares of capital stock of each of
the Company's subsidiaries have been duly authorized and
validly issued, are fully paid and nonassessable and are owned
by the Company, free and clear of any security interests,
liens, encumbrances, equities or claims. The Company does
not have any subsidiaries and does not own a material interest
in or control, directly or indirectly, any other corporation,
partnership, joint venture, association, trust or other
business organization, except those subsidiaries set forth in
Exhibit 21 to the Registration Statement.
(f) There are no legal or governmental proceedings,
actions, suits, inquiries, or investigations pending by or
before any court or governmental or other regulatory or
administrative agency or commission or, to the best knowledge
of the Company, threatened, against the Company or its direct
or indirect subsidiaries or to which the Company or its direct
or indirect subsidiaries or any of their properties are
subject, (i) that are required to be described in the
Registration Statement or the Prospectus (or any amendment or
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supplement thereto) but are not described as required by the
Act; or (ii) which might individually or in the aggregate
prevent the transactions contemplated by this Agreement. There
are no agreements, contracts, indentures, leases or other
instruments that are required to be described in the
Registration Statement or the Prospectus (or any amendment or
supplement thereto) or to be filed as an exhibit to the
Registration Statement that are not described, filed or
incorporated by reference in the Registration Statement and
the Prospectus as required by the Act. The contracts so filed
as exhibits are accurate and complete in all respects. All
such contracts to which the Company or any of its subsidiaries
is a party have been duly authorized, executed and delivered
by the Company or the applicable subsidiary, constitute valid
and binding agreements of the Company or the applicable direct
or indirect subsidiary and are enforceable against the Company
or the applicable direct or indirect subsidiary in accordance
with the terms thereof, except as enforceability thereof may
be limited by (A) the application of bankruptcy,
reorganization, insolvency and other laws affecting creditors'
rights generally, and (B) equitable principles being applied
at the discretion of a court before which any proceeding may
be brought. Neither the Company nor the applicable direct or
indirect subsidiary has received notice or been made aware
that any other party is in breach of or default under any such
contracts.
(g) Neither the Company nor any of its direct or indirect
subsidiaries is (i) in violation of its articles of
incorporation, bylaws or organizational documents; (ii) in
violation of any law, ordinance, administrative or
governmental rule or regulation applicable to the Company or
any of its direct or indirect subsidiaries or of any decree of
any court or governmental agency or body having jurisdiction
over the Company or any of its direct or indirect subsidiaries
(except to the extent such violation or violations would not
have a Material Adverse Effect) or in default in the
performance of any obligation, agreement or condition
contained in (A) any bond, debenture, note or any other
evidence of indebtedness, or (B) any agreement, indenture,
lease or other instrument to which the Company or any of its
direct or indirect subsidiaries is a party or by which any of
their properties may be bound (except to the extent to any
default referred to in this clause (iii) would not have a
Material Adverse Effect); and there does not exist any state
of facts which constitutes an event of default on the part of
the Company or any of its direct or indirect subsidiaries as
defined in such documents or which, with notice or lapse of
time or both, would constitute such an event of default
(except for any such event of default that would not have a
Material Adverse Effect).
(h) The Company's execution and delivery of this Agreement
and the performance by the Company of its obligations under
this Agreement have been duly and validly authorized by the
Company, and this Agreement has been duly executed and
delivered by the Company, and this Agreement constitutes a
valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms,
except to the extent enforceability may be limited by
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or other similar laws relating to or affecting
enforcement of creditors' rights generally or by general
equitable principles, whether considered in a proceeding at
law or in equity, and, rights to indemnification and
contribution hereunder may be limited by federal or state
securities laws or the public policy underlying such laws.
(i) Neither the issuance and sale of the Shares by the
Company, the execution, delivery or performance of this
Agreement by the Company nor the consummation by the Company
of the transactions contemplated hereby or thereby (i)
requires any consent, approval, authorization or other order
of or registration or filing with, any court, regulatory body,
administrative agency or other governmental body, agency or
official (except such as may be required for the registration
of the Shares under the Act, the registration of the Common
Stock under the Act and compliance with the securities or Blue
Sky laws of various jurisdictions, all of which will be, or
have been, effected in accordance with this Agreement and
except for the NASD's clearance of the underwriting terms of
the offering contemplated hereby as required under the NASD's
Rules of Fair Practice), (ii) conflicts with or will conflict
with or constitutes or will constitute a breach of, or a
default under, the articles of incorporation or bylaws or
similar instrument of the Company or any of its subsidiaries
or any agreement, indenture, lease or other instrument to
which the Company or any of its subsidiaries is a party or by
which any of its properties may be bound, (iii) violates any
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statute, law, regulation, ruling, filing, judgment,
injunction, order or decree applicable to the Company or any
of its subsidiaries or any of their properties, or (iv)
results in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company.
(j) Except as described in the Prospectus, and except for
options to purchase common stock issued pursuant to the
Company's Incentive Plan, neither the Company nor any of its
subsidiaries has outstanding and at the Closing Date (and the
Additional Closing Date, if applicable) will not have
outstanding any options to purchase, or any warrants to
subscribe for, or any securities or obligations convertible
into, or any contracts or commitments to issue or sell, any
shares of Common Stock or any such warrants or convertible
securities or obligations. No holder of securities of the
Company has rights to the registration of any securities of
the Company as a result of or in connection with the filing of
the Registration Statement or the consummation of the
transactions contemplated hereby that have not been satisfied
or heretofore waived in writing.
(k) Ernst & Young LLP, the certified public accountants
who have certified the financial statements filed as part of
the Registration Statement and the Prospectus (or any
amendment or supplement thereto), are independent public
accountants as required by the Act.
(l) The financial statements, together with related
schedules and notes, included in the Registration Statement
and the Prospectus (and any amendment or supplement thereto),
present fairly the financial condition, results of operations
and cash flows of the Company and its consolidated
subsidiaries on the basis stated in the Registration Statement
at the respective dates or for the respective periods to which
they apply; such statements and related schedules and notes
have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the
periods involved, except as disclosed therein; and the other
financial and statistical information and data set forth in
the Registration Statement and Prospectus (and any amendment
or supplement thereto) is accurately presented and prepared on
a basis consistent with such financial statements and the
books and records of the Company. No other financial
statements or schedules are required to be included in the
Registration Statement.
(m) Except as disclosed in the Registration Statement and
the Prospectus (or any amendment or supplement thereto),
subsequent to the respective dates as of which such
information is given in the Registration Statement and the
Prospectus (or any amendment or supplement thereto), (i)
neither the Company nor any of its subsidiaries has incurred
any liabilities or obligations, indirect, direct or
contingent, or entered into any transaction which is not in
the ordinary course of business and is material to the Company
and its subsidiaries taken as a whole; (ii) neither the
Company nor any of its subsidiaries has sustained any material
loss or interference with its business or properties from
fire, flood, windstorm, accident or other calamity, whether or
not covered by insurance; (iii) neither the Company nor any of
its subsidiaries has paid or declared any dividends or other
distributions with respect to its capital stock and the
Company is not in default under the terms of any class of
capital stock of the Company or any outstanding debt
obligations; (iv) there has not been any change in the
authorized or outstanding capital stock of the Company or any
material change in the indebtedness of the Company (other than
in the ordinary course of business); and (v) there has not
been any change which has, or any development involving or
which may reasonably be expected to involve a potential future
change which would have, a Material Adverse Effect.
(n) The Company and each of its direct or indirect
subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such
amounts as the Company believes are prudent and customary in
the businesses in which they are engaged; and neither the
Company nor any of its subsidiaries has any reason to believe
that any of them will not be able to renew its existing
insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be
necessary to continue its business, except where the failure
to renew or maintain such coverage would not result in a
Material Adverse Effect. The officers and directors of the
Company are insured by insurers of recognized financial
responsibility against such losses and risks and in such
amounts as are prudent and customary for directors' and
officers' liability insurance of a public company and as would
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cover claims which could be made in connection with the
issuance of the Common Stock; and the Company has no reason to
believe that it will not be able to renew its existing
directors' and officers' liability insurance coverage as and
when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to cover its officers and
directors.
(o) Each of the Company and its direct or indirect
subsidiaries has good and valid title to all property (real
and personal) described in the Prospectus as being owned by
it, free and clear of all liens, claims, security interests or
other encumbrances except (i) such as are described in the
financial statements included in, or elsewhere in, the
Prospectus or (ii) such as are not materially burdensome and
do not interfere in any material respect with the use of the
property or the conduct of the business of the Company. All
property (real and personal) held under lease by the Company
and its direct or indirect subsidiaries is held by it under
valid, subsisting and enforceable leases with only such
exceptions as in the aggregate are not materially burdensome
and do not interfere in any material respect with the conduct
of the business of the Company and its direct or indirect
subsidiaries, in each case, except as described in the
Prospectus.
(p) The Company has not distributed and will not distribute
any offering material in connection with the offering and sale
of the Shares other than the Prepricing Prospectus, the
Prospectus, or other offering material, if any, as permitted
by the Act.
(q) Other than excepted activity pursuant to Regulation M
under the Exchange Act, the Company has not taken, directly or
indirectly, any action which constituted, or any action
designed, or which might reasonably be expected to cause or
result in or constitute, under the Act or otherwise,
stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Shares or
for any other purpose.
(r) The Company is not an "investment company," an
"affiliated person" of, or "promoter" or "principal
underwriter" for an investment company within the meaning of
the Investment Company Act of 1940, as amended.
(s) Each of the Company and its direct or indirect
subsidiaries has all permits, licenses, franchises, approvals,
consents and authorizations of governmental or regulatory
authorities (domestic and foreign) (hereinafter "permit" or
"permits") as are necessary to own its properties and to
conduct its business in the manner described in the
Prospectus, subject to such qualifications as may be set forth
in the Prospectus, except where the failure to have obtained
any such permit has not and will not have a Material Adverse
Effect; each of the Company and its direct or indirect
subsidiaries has operated and is operating its business in
compliance with and not violation of all of its obligations
with respect to each such permit and no event has occurred
which allows, or after notice or lapse of time would allow,
revocation or termination of any such permit or result in any
other material impairment of the rights of the holder of any
such permit, subject in each case to such qualification as may
be set forth in the Prospectus; and, except as described in
the Prospectus, such permits contain no restrictions that are
materially burdensome to the Company or any of its direct or
indirect subsidiaries.
(t) The Company has complied and will comply with all
applicable laws in paying its employees' salaries, fringe
benefits, and other compensation for the performance of work
or other duties, including all applicable laws relating to
contract employees provided by any PRC Authority, except where
the failure to comply has not had and will not have a Material
Adverse Effect. The Company has complied and will comply with
the requirements of the American with Disabilities Act of
1990, the Family and Medical Leave Act of 1993, the Employee
Retirement Income Security Act, the Civil Rights Act of 1964
(Title VII), as amended, the Age Discrimination in Employment
Act and other applicable federal and state employment and
labor laws, except where the failure to comply has not had and
will not have a Material Adverse Effect. No labor dispute with
the employees of the Company or any subsidiary exists or, to
the Knowledge of the Company, is imminent, and the Company is
not aware of any existing or imminent labor disturbance by the
employees of any of its or any subsidiary's principal
suppliers, manufacturers, customers or contractors which, in
either case, may reasonably be expected to have a Material
Adverse Effect.
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<PAGE>
(u) The Company has established for itself and each of its
subsidiaries a system of internal accounting controls
sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's
general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting
principles and to maintain accountability for assets; (iii)
access to assets is permitted only in accordance with
management's general or specific authorizations; and (iv) the
recorded accountability for assets is compared with existing
assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(v) Neither the Company nor any of its subsidiaries, or to
the knowledge of the Company, any other person associated with
or acting on behalf of the Company or any of its subsidiaries,
including, without limitation, any director, officer, agent or
employee of the Company or any of its subsidiaries, has,
directly or indirectly, at any time during the past five years
(i) made any unlawful contribution to any candidate for
political office, or failed to disclose fully any contribution
in violation of law, or (ii) made any payment to any federal,
state or foreign governmental official, or other person
charged with similar public or quasi-public duties (other than
payments required or permitted by the laws of the United
States or any jurisdiction thereof or applicable foreign
jurisdictions); (iii) violated any provision of the Foreign
Corrupt Practices Act of 1977, as amended; or (iv) made any
other unlawful payment.
(w) Each of the Company and its subsidiaries has obtained
all required permits, licenses, and other authorizations, if
any, which are required under federal, state, local and
foreign statutes, ordinances and other laws relating to
pollution or protection of the environment, including laws
relating to emissions, discharges, releases, or threatened
releases of pollutants, contaminants, chemicals, or
industrial, hazardous, or toxic materials or wastes into the
environment (including, without limitation, ambient air,
surface water, ground water, land surface, or subsurface
strata) or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport, or
handling of pollutants, contaminants, chemicals, or
industrial, hazardous, or toxic materials or wastes, or any
regulation, rule, code, plan, order, decree, judgment,
injunction, notice, or demand letter issued, entered,
promulgated, or approved thereunder ("Environmental Laws"),
except where the failure to obtain any such permit, license or
other authorization has not resulted in and will not result in
a Material Adverse Effect. Each of the Company and its
subsidiaries is in compliance with all terms and conditions of
all required permits, licenses, and authorizations, except to
the extent the failure to be so in compliance would not have
Material Adverse Effect, and are also in compliance with all
other limitations, restrictions, conditions, standards,
prohibitions, requirements, obligations, schedules, and
timetables contained in the Environmental Laws, except to the
extent the failure to be so in compliance would not have
Material Adverse Effect. There is no pending or, to the best
knowledge of the Company after due inquiry, threatened civil
or criminal litigation, notice of violation, or administrative
proceeding relating in any way to the Environmental Laws
(including but not limited to notices, demand letters, or
claims under the Resource Conservation and Recovery Act of
1976, as amended ("RCRA"), the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended
("CERCLA"), the Emergency Planning and Community Right to Know
Act of 1986, as amended ("EPCRA"), the Clean Air Act, as
amended ("CAA"), or the Clean Water Act, as amended ("CWA")
and similar federal, foreign, state, or local laws) involving
the Company or any of its subsidiaries which is reasonably
likely to result in a Material Adverse Effect. There have not
been and there are not any past, present, or foreseeable
future events, conditions, circumstances, activities,
practices, incidents, actions, or plans which may interfere
with or prevent continued compliance, or which may give rise
to any common law or legal liability, or otherwise form the
basis of any claim, action, demand, suit, proceeding, hearing,
study, or investigation, based on or related to the
manufacture, processing, distribution, use, treatment,
storage, disposal, transport, or handling, or the emission,
discharge, release, or threatened release into the
environment, of any pollutant, contaminant, chemical, or
industrial, hazardous, or toxic material or waste, including,
without limitation, any liability arising, or any claim,
action, demand, suit, proceeding, hearing, study, or
investigation which may be brought, under RCRA, CERCLA, EPCRA,
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CAA, CWA or similar federal, foreign, state or local laws
which is reasonably likely to result in a Material Adverse
Effect.
(x) The Company and its direct or indirect subsidiaries own
and have full right, title and interest in and to, or have
valid licenses to use, each trade name, trademark or service
mark under which the Company or any subsidiary conducts all or
any part of its business, and the Company has created no lien
or encumbrance on, or granted any right or license with
respect to, any such trade name, trademark or service mark;
there is no claim pending against the Company with respect to
any trade name, trademark or service mark and the Company has
not received notice or otherwise become aware that any trade
name, trademark or service mark which it uses or has used in
the conduct of its business infringes upon or conflicts with
the rights of any third party.
(y) All offers, sales, conversions and redemptions of the
Company's capital stock and other securities through the date
hereof were made in compliance with the Act and all other
applicable state and federal laws or regulations, except to
the extent any noncompliance would not have a Material Adverse
Effect.
(z) The Shares have been duly authorized for trading on the
Nasdaq/NMS under the symbol "LENS," subject to notice of
issuance of the Shares being sold by the Company, and upon
consummation of the offering contemplated hereby the Company
will be in compliance with the designation and maintenance
criteria applicable to Nasdaq National Market issuers.
(aa) All federal, state, local and foreign tax returns
required to be filed by or on behalf of the Company and its
direct or indirect subsidiaries (and their predecessors) with
respect to the six full fiscal years ended prior to the date
of this Agreement have been filed (or are the subject of valid
extension) with the appropriate federal, state, local and
foreign authorities and all such tax returns, as filed, are
accurate in all material respects. All federal, state, local
and foreign taxes (including estimated tax payments) required
to be shown on all such tax returns or claimed to be due from
or with respect to the business of the Company and its direct
or indirect subsidiaries (and their predecessors) with respect
to such six full fiscal years have been paid or reflected as a
liability on the financial statements of the Company for
appropriate periods, except for those taxes or claims therefor
which are being contested by the Company in good faith and for
which appropriate reserves are reflected in the Company's
financial statements. All deficiencies asserted as a result of
any federal, state, local or foreign tax audits have been paid
or finally settled and no issue has been raised in any such
audit which, by application of the same or similar principles,
reasonably could be expected to result in a proposed
deficiency for any other period not so audited. There are no
outstanding agreements or waivers extending the statutory
period of limitation applicable to any federal, state, local
or foreign tax return for any period. On the Closing Date, and
Additional Closing Date, if any, all stock transfer and other
taxes which are required to be paid in connection with the
sale of the shares to be sold by the Company to the
Underwriters will have been fully paid by the Company and all
laws imposing such taxes will have been complied with.
(bb) Except as set forth in the Prospectus, there are no
transactions with "affiliates" (as defined in Rule 405
promulgated under the Act) or any officer, director or
security holder of the Company (whether or not an affiliate)
which are required by the Act and the applicable rules and
regulations thereunder to be disclosed in the Registration
Statement.
(cc) The Company has procured lock-up agreements from each
of the Company's most senior executive officers and directors.
(dd) No officer, director or shareholder of the Company has
a direct or indirect affiliation or association with any
member of the NASD.
(ee) The statistical and market-related data included in
the Prospectus is based on or derived from sources which the
Company believes to be reliable and accurate in all material
respects.
(ff) There are no persons with registration rights or other
similar rights to have any securities registered pursuant to
the Registration Statement or otherwise registered by the
Company under the 1933 Act.
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7. Expenses. Whether or not the transactions contemplated
hereby are consummated or this Agreement becomes effective or is terminated, the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Shares under the Act and all other expenses in connection
with the preparation, printing and filing of the Registration Statement and the
Prospectus and amendments and supplements thereto and the mailing and delivering
of copies thereof and of any Prepricing Prospectus to the Underwriters and
dealers; (ii) the printing and delivery (including, without limitation, postage,
air freight charges and charges for counting and packaging) of such copies of
the Registration Statement, the Prospectus, each Prepricing Prospectus, the Blue
Sky memoranda, the Master Agreement Among Underwriters, this Agreement, the
Selected Dealers Agreement and all amendments or supplements to any of them as
may be reasonably requested for use in connection with the offering and sale of
the Shares; (iii) all expenses in connection with the qualification of the
Shares for offering and sale under state securities laws or Blue Sky laws,
including the reasonable attorneys' fees and out-of-pocket expenses of the
counsel for the Underwriters in connection therewith; (iv) the filing fees
incident to securing any required review by the NASD of the fairness of the
terms of the sale of the Shares and the reasonable fees and disbursements of the
Underwriters' counsel relating thereto; (v) the cost of preparing stock
certificates; (vi) the costs and charges of any transfer agent or registrar;
(vii) the cost of the tax stamps, if any, in connection with the issuance and
delivery of the Shares to the respective Underwriters; (viii) all other fees,
costs and expenses referred to in Item 14 of the Registration Statement, (ix)
the transportation, lodging, graphics and other expenses incidental to the
Company's preparation for and participation in the "roadshow" for the offering
contemplated hereby, and (x) all other costs and expenses incident to the
performance of the obligations of the Company hereunder which are not otherwise
specifically provided for in this Section 7. Notwithstanding the foregoing, in
the event that the proposed offering is terminated for the reasons set forth in
Section 5.(i) hereof, the Company agrees to reimburse the Underwriters as
provided in Section 5.(i).
8. Indemnification and Contribution. Subject to the
limitations in this paragraph below, the Company agrees to indemnify and hold
harmless you and each other Underwriter, the directors, officers, employees and
agents of each Underwriter, and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act from and against any and all losses, claims, damages, liabilities
and expenses, including, without limitation, reasonable costs of investigation
and attorneys' fees and expenses (collectively, "Damages") arising out of or
based upon any untrue statement or alleged untrue statement of a material fact
contained in any Prepricing Prospectus or in the Registration Statement or the
Prospectus or in any amendment or supplement thereto, or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except to the extent
that any such Damages arise out of or are based upon an untrue statement or
omission or alleged untrue statement or omission which has been made therein or
omitted therefrom in reliance upon and in conformity with the information
furnished in writing to the Company by or on behalf of any Underwriter expressly
for use in connection therewith, provided, however, that with respect to any
untrue statement or omission made in any Prepricing Prospectus, the indemnity
agreement contained in this paragraph shall not inure to the benefit of any
Underwriter (or to the benefit of any person controlling such Underwriter or to
any officer, director, employee or agent of any Underwriter) from whom the
person asserting any such losses, claims, damages or liabilities purchased the
Shares concerned if both (y) a copy of the Prospectus was not sent or given to
such person at or prior to the written confirmation of the sale of such Shares
to such person as required by the Act, and (z) the untrue statement or omission
in the Prepricing Prospectus was corrected in the Prospectus. This
indemnification shall be in addition to any liability that the Company may
otherwise have.
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If any action or claim shall be brought against any
Underwriter or any person controlling any Underwriter in respect of which
indemnity may be sought against the Company pursuant to this Section 8, such
Underwriter or such controlling person shall promptly notify in writing the
party(s) against whom indemnification is being sought (the "indemnifying party"
or "indemnifying parties"), and such indemnifying party(s) shall have the right
to assume the defense thereof, including the employment of counsel reasonably
acceptable to such Underwriter or such controlling person and payment of all
fees and expenses incurred by such counsel. Such Underwriter or any such
controlling person shall have the right to employ separate counsel in any such
action and participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such Underwriter or such controlling person
unless (i) the indemnifying party(s) has (have) agreed in writing to pay such
fees and expenses, (ii) the indemnifying party(s) has (have) failed to assume
the defense and employ counsel reasonably acceptable to the Underwriter or such
controlling person or (iii) the named parties to any such action (including any
impleaded parties) include both such Underwriter or such controlling person and
the indemnifying party(s), and such Underwriter or such controlling person shall
have been advised by its counsel that one or more legal defenses may be
available to the Underwriter which may not be available to the Company, or that
representation of such indemnified party and any indemnifying party(s) by the
same counsel would be inappropriate under applicable standards of professional
conduct (whether or not such representation by the same counsel has been
proposed) due to actual or potential differing interests between them (in which
case the indemnifying party(s) shall not have the right to assume the defense of
such action on behalf of such Underwriter or such controlling person
(notwithstanding its (their) obligation to bear the fees and expenses of such
counsel)). It is understood, however, that the indemnifying parties shall, in
connection with any one such action, suit or proceeding or separate but
substantially similar or related actions, suits or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of only one separate firm of
attorneys (in addition to any local counsel) at any time for all such
Underwriters and controlling persons not having actual or potential differing
interests. The indemnifying party(s) shall not be liable for any settlement of
any such action effected without its (their) written consent, but if settled
with such written consent, or if there be a final judgment for the plaintiff in
any such action, the indemnifying party(s) agrees to indemnify and hold harmless
any Underwriter and any such controlling person from and against any loss,
claim, damage, liability or expense by reason of such settlement or judgment,
but in the case of a judgment only to the extent stated in the first paragraph
of this Section 8.
Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement, and any person who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, to the same
extent as the foregoing indemnity from the Company to each Underwriter, but only
with respect to information furnished in writing by or on behalf of such
Underwriter expressly for use in the Registration Statement, the Prospectus or
any Prepricing Prospectus, or any amendment or supplement thereto. If any action
or claim shall be brought or asserted against the Company, any of its directors,
any such officers, or any such controlling person based on the Registration
Statement, the Prospectus or any Prepricing Prospectus, or any amendment or
supplement thereto, and in respect of which indemnity may be sought against any
Underwriter pursuant to this paragraph, such Underwriter shall have the rights
and duties given to the Company by the preceding paragraph (except that if the
Company shall have assumed the defense thereof such Underwriter shall not be
required to do so, but may employ separate counsel therein and participate in
the defense thereof, but the fees and expenses of such counsel shall be at such
Underwriter's expense), and the Company, its directors, any such officers, and
any such controlling persons shall have the rights and duties given to the
Underwriters by the immediately preceding paragraph.
If the indemnification provided for in this Section 8 is
unavailable or insufficient for any reason whatsoever to an indemnified party
under the first or third paragraph of this Section 8 in respect of any losses,
claims, damages, liabilities or expenses referred to therein, then an
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or expenses (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company on
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<PAGE>
the one hand and the Underwriters on the other hand from the offering and sale
of the Shares 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 Company on the one hand and the Underwriters on the other hand in
connection with the statements or omissions that resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other hand, shall be deemed to be in the
same proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the table
on the cover page of the Prospectus; provided that, in the event that the
Underwriters shall have purchased any Additional Shares hereunder, any
determination of the relative benefits received by the Company or the
Underwriters from the offering of the Shares shall include the net proceeds
(before deducting expenses) received by the Company, and the underwriting
discounts and commissions received by the Underwriters, from the sale of such
Additional Shares, in each case computed on the basis of the respective amounts
set forth in the notes to the table on the cover page of the Prospectus. The
relative fault of the Company on the one hand and the Underwriters on the other
hand shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
on the one hand or by the Underwriters on the other hand and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 8 was determined by
a pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities and expenses referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price of the Shares underwritten by it and distributed to the public exceeds the
amount of any damages which such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 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 8 are several in proportion
to the respective numbers of Firm Shares set forth opposite their names in
Schedule I hereto (or such numbers of Firm Shares increased as set forth in
Section 10 hereof) and not joint. No party shall be liable for contribution with
respect to any action or claim settled without its consent, provided that such
consent shall not be unreasonably withheld.
The indemnity and contribution agreements contained in this
Section 8 and the representations and warranties of the Company, respectively,
set forth in this Agreement shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of any Underwriter or
any person controlling any Underwriter, the Company, its directors or officers
or any person controlling the Company, (ii) acceptance of any Shares and payment
therefor hereunder and (iii) any termination of this Agreement. A successor to
any Underwriter or any person controlling any Underwriter, or to the Company,
its directors or officers, or any person controlling the Company, shall be
entitled to the benefits of the indemnity, contribution and reimbursement
agreements contained in this Section 8.
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9. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase the Firm Shares hereunder are
subject to the following conditions:
(a) The Registration Statement shall have become effective
not later than 5:30 p.m., New York City time, on the date
hereof, or at such later date and time as shall be consented
to in writing by you, and all filings required by Rules
424(b), 430A and 462 under the Act shall have been timely
made.
(b) You shall be reasonably satisfied that since the
respective dates as of which information is given in the
Registration Statement and Prospectus, (i) there shall not
have been any change in the capital stock of the Company or
any material change in the indebtedness (other than in the
ordinary course of business) of the Company, (ii) except as
set forth or contemplated by the Registration Statement or the
Prospectus, no material oral or written agreement or other
transaction shall have been entered into by the Company which
is not in the ordinary course of business or which could
reasonably be expected to result in a material reduction in
the future earnings of the Company, (iii) no loss or damage
(whether or not insured) to the property of the Company shall
have been sustained which has or could reasonably be expected
to have a Material Adverse Effect, (iv) no legal or
governmental action, suit or proceeding affecting the Company
or any of its properties which is material to the Company and
its subsidiaries taken as a whole or which affects or could
reasonable be expected to affect the transactions contemplated
by this Agreement shall have been instituted or threatened,
and (v) there shall not have been any change in the condition
(financial or otherwise), business, management, results or
operations or prospects of the Company or its subsidiaries
having a Material Adverse Effect which makes it impractical or
inadvisable in your judgment to proceed with the public
offering or purchase the Shares as contemplated hereby.
(c) You shall have received on the Closing Date (and the
Additional Closing Date, if any) an opinion of Kronish Lieb
Weiner & Hellman LLP, as counsel for the Company, dated the
Closing Date, satisfactory to you and your counsel,
substantially to the effect that:
(i) The Company is a corporation duly incorporated and
validly existing in good standing under the laws of the
State of New Jersey, with full corporate power and
authority to own, lease and operate its properties and to
conduct its business as described in the Registration
Statement and the Prospectus (and any amendment or
supplement thereto), and is duly registered or otherwise
qualified to conduct its business as a foreign corporation
and is in good standing in each jurisdiction or place where
the nature of its properties or the conduct of its business
requires such registration or qualification, except where
the failure to so register or qualify or to be in good
standing would not reasonably be expected to have a
Material Adverse Effect.
(ii) Each of the direct or indirect active subsidiaries
of the Company organized under the laws of the United
States or any state thereof (the "U.S. Subsidiaries") is a
corporation or entity existing in good standing under the
laws of the jurisdiction of its formation, with full power
and authority to own, lease and operate its properties and
to conduct its business as described in the Registration
Statement and the Prospectus (and any amendment or
supplement thereto); and is duly registered and qualified
to conduct its business and is in good standing in each
jurisdiction or place where the nature of its properties or
the conduct of its business requires such registration or
qualification, except where the failure to so register or
qualify or to be in good standing would not reasonably be
expected to have a Material Adverse Effect; and all
registered capital and all of the outstanding shares of
capital stock of each of the U.S. Subsidiaries have been
duly authorized and validly issued, and are fully paid and
nonassessable, and are directly or indirectly owned of
record, and to our knowledge, beneficially by the
Company and are free and clear of any perfected security
interest, or to our knowledge any other security interest,
lien, adverse claim, equity or other encumbrance.
(iii) To our knowledge, the capitalization of the
Company conforms in all material respects to the
description thereof contained in the Prospectus under the
caption "Capitalization". Except as set forth in the
Prospectus, the Company is not a party to or bound by any
outstanding options, warrants or similar rights to
subscribe for, or contractual obligations to issue, sell,
transfer or acquire, any of its capital stock
15
<PAGE>
or any securities convertible into or exchangeable for any
of such capital stock.
(iv) All shares of capital stock of the Company to be
issued and sold by the Company hereunder, have been duly
authorized and upon payment therefor in accordance with
the terms of this Agreement, will be validly issued, are
fully paid and nonassessable and free of any preemptive or
similar rights under the New Jersey Business Corporations
Act that entitle or will entitle any person to acquire any
Shares upon the issuance thereof by the Company.
(v) All shares of capital stock of the Company
outstanding prior to the issuance of the shares to be
issued and sold by the Company hereunder, have been duly
authorized and validly issued, are fully paid and
nonassessable and are free of any preemptive or similar
rights under the New Jersey Business Corporations Act that
entitle or will entitle any person to acquire any shares
upon the issuance thereof by the Company. To our knowledge,
all offers and sales of the Company's securities have been
made in compliance in all material respects with the
registration requirements of the Act and other applicable
state securities laws or regulations or applicable
exemptions therefrom.
(vi) The Company is not in default in the performance
of any obligation, agreement or condition contained in (x)
any bond, indenture, note or other evidence of indebtedness
or (y) to our knowledege any other agreement or obligation
of the Company, where the default would have, individually
or in the aggregate, a Material Adverse Effect.
(vii) To our knowledge, neither the offer, sale or
delivery of the Shares by the Company, the execution,
delivery or performance by the Company of this Agreement,
compliance by the Company with all provisions hereof nor
consummation by the Company of the transactions
contemplated hereby (A) conflicts or will conflict with or
constitutes or will constitute a breach of, or default
under or (B) creates or will result in the creation or
imposition of any lien, charge or encumbrance upon any
property or assets of the Company, pursuant to any material
agreement, indenture, lease or other instrument to which
the Company is a party or by which any of its properties is
bound.
(viii) Except as described in the Registration
Statement or Prospectus, to our knowledge, after reasonable
inquiry (no search of court records having been made),
there is no action, suit, inquiry, proceeding, or
investigation by or before any U.S. federal or state court
or governmental or other regulatory or administrative
agency or commission pending or, to the knowledge of such
counsel, threatened, against or involving the Company or
its U.S. Subsidiaries, or the properties of either the
Company or any of its U.S. Subsidiaries: (A) which might
individually or in the aggregate prevent or adversely
affect the transactions contemplated by this Agreement or
result in a Material Adverse Effect, nor, to the knowledge
of such counsel, is there any basis for any such action,
suit, inquiry, proceeding, or investigation; or (B) that
are required to be described in the Registration Statement
or Prospectus (or any amendment or supplement thereto) that
are not described as required therein.
(ix) Such counsel has reviewed all agreements,
contracts, indentures, leases or other documents or
instruments described or referred to in the Registration
Statement and the Prospectus (or translations thereof), and
such agreements, contracts (and forms of contracts),
indentures, leases or other documents or instruments are
fairly summarized or disclosed in all material respects
therein, and filed as exhibits thereto as required, and to
our knowledge there are no agreements, contracts,
indentures, leases or other documents or instruments
required to be so summarized or disclosed or filed which
have not been so summarized or disclosed or filed.
<PAGE>
(x) No consent, approval, authorization or other order
of, or registration or filing with, any court, regulatory
body, administrative agency or other governmental body,
agency or official in the United States or any state
thereof is required on the part of the Company (except (a)
such as have been obtained or made under the Act or (b)
such as may be required under state securities or Blue Sky
laws governing the purchase and distribution of the Shares
as to which we express no opinion) for the valid issuance
and sale of the Shares to the Underwriters under this
Agreement.
(xi) The Company satisfies all of the requirements of
the Act for use of Form S-3 for the offering of Shares
contemplated by this Agreement.
16
<PAGE>
In rendering such opinion, counsel may rely, to the
extent he deems such reliance proper, as to matters of fact
upon certificates of officers of the Company and of
government officials, provided that counsel shall state
their belief that they and you are justified in relying
thereon. Copies of all such certificates shall be furnished
to you and your counsel on the Closing Date. In addition to
the opinion set forth above, such counsel shall state that
during the course of his participation in the preparation
of the Registration Statement and the Prospectus and the
amendments thereto, nothing has come to the attention of
such counsel which has caused him to believe or given him
reason to believe that the Registration Statement or the
Prospectus or any amendment thereto (except for the
financial statements and other financial, accounting and
statistical information, or industry data attributed to an
identified source, contained therein or omitted therefrom
as to which no opinion need be expressed), at the date
thereof, 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 or that the Registration Statement or the
Prospectus as of the date of the opinion (except as
aforesaid), contains an untrue statement of a material fact
or omits to state a material fact necessary to make the
statements therein, in light of the circumstances under
which they were made, not misleading.
(d) You shall have received on the Closing Date an opinion of
Deacons, as special Hong Kong counsel for the Company, dated
the Closing Date, substantially in the form of Exhibit A
hereto (it being understood that such Exhibit is in
preliminary form and is subject to modification) and
reasonably satisfactory to you and your counsel.
(e) You shall have received on the Closing Date an opinion
of Sun Jun & Associates, as special People's Republic of China
counsel for the Company, dated the Closing Date, substantially
in the form of Exhibit B hereto (it being understood that such
Exhibit is in preliminary form and is subject to modification)
and reasonably satisfactory to you and your counsel.
(f) You shall have received on the Closing Date an opinion
of Penningtons, as special United Kingdom counsel for the
Company, dated the Closing Date, substantially in the form of
Exhibit C hereto (it being understood that such Exhibit is in
preliminary form and is subject to modification) and
reasonably satisfactory to you and your counsel.
(g) You shall have received on the Closing Date an opinion
of Greenberg, Traurig, P.A., as counsel for the Underwriters,
dated the Closing Date with respect to the issuance and sale
of the Firm Shares, the Registration Statement and other
related matters as you may reasonably request, and the Company
and its counsel shall have furnished to your counsel such
documents as they may reasonably request for the purpose of
enabling them to pass upon such matters.
(h) You shall have received letters addressed to you and
dated the date hereof and the Closing Date from the firm of
Ernst & Young, LLP, independent certified public accountants,
substantially in the forms heretofore approved by you.
(i) (i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no
proceedings for that purpose shall be pending or, to the
knowledge of the Company, shall be threatened or contemplated
by the Commission at or prior to the Closing Date; (ii) no
order suspending the effectiveness of the Registration
Statement or the qualification or registration of the Shares
under the securities or Blue Sky laws of any jurisdiction
shall be in effect and no proceeding for such purpose shall be
pending or, to the knowledge of the Company, threatened or
contemplated by the Commission or the authorities of any
jurisdiction; (iii) any request for additional information on
the part of the staff of the Commission or any such
authorities shall have been complied with to the satisfaction
of the staff of the Commission or such authorities; (iv) after
the date hereof no amendment or supplement to the Registration
Statement or the Prospectus shall have been filed unless a
copy thereof was first submitted to you and you did not object
thereto in good faith; and (v) all of the representations and
warranties of the Company contained in this Agreement shall be
true and correct in all respects on and as of the date hereof
and on and as of the Closing Date as if made on and as of the
Closing Date, and you shall have received a certificate, dated
the Closing Date and signed by the chief executive officer and
the chief financial officer of the Company (or such other
officers as are acceptable to you) to the effect set forth in
this Section 9(f) and in Sections 9(b) and 9(g) hereof.
<PAGE>
(j) The Company shall not have failed in any material
respect at or prior to the Closing Date to have performed or
complied with any of its agreements herein contained and
required to be performed or complied with by it hereunder at
or prior to the Closing Date.
(k) The Company shall have furnished or caused to have been
furnished to you such further certificates and documents as
you shall have reasonably requested.
(l) At or prior to the Closing Date, you shall have
received Lock-Up Agreements from each of the Company's
executive officers and directors.
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<PAGE>
(m) At or prior to the effective date of the Registration
Statement, you shall have received a letter from the Corporate
Financing Department of the NASD confirming that such
Department has determined to raise no objections with respect
to the fairness or reasonableness of the underwriting terms
and arrangements of the offering contemplated hereby.
All such opinions, certificates, letters and other documents
will be in compliance with the provisions hereof only if they are reasonably
satisfactory in form and substance to you and your counsel.
The several obligations of the Underwriters to purchase
Additional Shares hereunder are subject to the satisfaction on and as of the
Additional Closing Date of the conditions set forth in this Section 9, except
that, if the Additional Closing Date is other than the Closing Date, the
certificates, opinions and letters referred to in this Section 9 shall be dated
as of the Additional Closing Date and the opinions called for by paragraph (c)
shall be revised to reflect the sale of Additional Shares.
If any of the conditions hereinabove provided for in this
Section 9 shall not have been satisfied when and as required by this Agreement,
this Agreement may be terminated by you by notifying the Company of such
termination in writing or by telegram at or prior to such Closing Date, but you
shall be entitled to waive any of such conditions.
10. Effective Date of Agreement. This Agreement shall become
effective upon the later of (a) the execution and delivery hereof by the parties
hereto, and (b) release of notification of the effectiveness of the Registration
Statement by the Commission; provided, however, that the provisions of Section 8
shall at all times be effective.
If any one or more of the Underwriters shall fail or refuse to
purchase Firm Shares which it or they have agreed to purchase hereunder, and the
aggregate number of Firm Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the aggregate number of the Firm Shares, each non-defaulting Underwriter
shall be obligated, severally, in the proportion which the number of Firm Shares
set forth opposite its name in Schedule I hereto bears to the aggregate number
of Firm Shares set forth opposite the names of all non-defaulting Underwriters
or in such other proportion as you may specify in the Agreement Among
Underwriters, to purchase the Firm Shares which such defaulting Underwriter or
Underwriters agreed, but failed or refused to purchase. If any Underwriter or
Underwriters shall fail or refuse to purchase Firm Shares and the aggregate
number of Firm Shares with respect to which such default occurs is more than
one-tenth of the aggregate number of Firm Shares and arrangements satisfactory
to you and the Company for the purchase of such Firm Shares are not made within
48 hours after such default, this Agreement will terminate without liability on
the part of any non-defaulting Underwriter or the Company. In any such case
which does not result in termination of this Agreement, either you or the
Company shall have the right to postpone the Closing Date, but in no event for
longer than seven (7) days, in order that the required changes, if any, in the
Registration Statement and the Prospectus or any other documents or arrangements
may be effected. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any such default of any such
Underwriter under this Agreement.
11. Termination of Agreement. This Agreement shall be subject
to termination in your absolute discretion, without liability on the part of any
Underwriter to the Company by notice to the Company, if prior to the Closing
Date or the Additional Closing Date (if different from the Closing Date and then
only as to the Additional Shares), as the case may be, (i) trading in the
Company's Common Stock shall have been suspended by the Commission or the
Nasdaq/NMS, (ii) trading in securities generally on the New York Stock Exchange,
American Stock Exchange or Nasdaq/NMS shall have been suspended or materially
limited, or minimum or maximum prices shall have been generally established on
such exchange, or additional material governmental restrictions, not in force on
the date of this Agreement, shall have been imposed upon trading in securities
generally by any such exchange or by order of the Commission or any court or
other governmental authority, (iii) a general moratorium on commercial banking
activities shall have been declared by either federal or New York State
authorities or (iv) there shall have occurred any outbreak or escalation of
hostilities or other international or domestic calamity, crisis or change in
political, financial or economic conditions or other material event the effect
of which on the financial markets of the United States is such as to make it, in
your good faith judgment, impracticable or inadvisable to market the Shares or
18
<PAGE>
to enforce contracts for the sale of the Shares. Notice of such cancellation
shall be promptly given to the Company and its counsel by telegraph, telecopy or
telephone and shall be subsequently confirmed by letter.
12. Information Furnished by the Underwriters. The Company
acknowledges that (i) the paragraph immediately following footnote (2) on the
cover page of the Prospectus, and (ii) the third and seventh paragraphs under
the caption "Underwriting" in any Prepricing Prospectus and in the Prospectus,
constitute the only information furnished by or on behalf of the Underwriters
through you or on your behalf as such information is referred to in Sections
6(a), 6(b) and 9 hereof.
13. Miscellaneous. Except as otherwise provided in Sections 5
and 12 hereof, notice given pursuant to any of the provisions of this Agreement
shall be in writing and shall be delivered (i) if to the Company, to the office
of the Company at 4000 Hollywood Blvd, Suite 650N, Hollywood, Florida 33021,
Attention: Ira B. Lampert, Chairman, President and Chief Executive Officer (with
copy to Ralph J. Sutcliffe, Esq., 1114 Avenue of the Americas, New York, New
York 10036), or (ii) if to you, as Representatives of the Underwriters, to
Raymond James & Associates, Inc., 880 Carillon Parkway, St. Petersburg, Florida
33716, Attention: Robert Dressler, Managing Director (with copy to Greenberg
Traurig, P.A., 1221 Brickell Avenue, Miami, Florida 33131, Attention: Gary M.
Epstein, Esq.).
This Agreement has been and is made solely for the benefit of
the several Underwriters, the Company, its directors and officers, and the other
controlling persons referred to in Section 9 hereof, to the extent provided
herein, and no other person shall acquire or have any right under or by virtue
of this Agreement. Neither of the terms "successor" and "successors and assigns"
as used in this Agreement shall include a purchaser from you of any of the
Shares in his status as such purchaser.
14. Applicable Law; Counterparts. This Agreement shall be
governed by and construed in accordance with the laws of the State of Florida
without reference to choice of law principles thereunder.
This Agreement may be signed in various counterparts which
together shall constitute one and the same instrument.
This Agreement shall be effective when, but only when, at
least one counterpart hereof shall have been executed on behalf of each party
hereto.
The Company and the Underwriters each hereby irrevocably waive
any right they may have to a trial by jury in respect to any claim based upon or
arising out of this Agreement or the transactions contemplated hereby.
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<PAGE>
Please confirm that the foregoing correctly sets forth the
agreement among the Company and the several Underwriters.
Very truly yours,
CONCORD CAMERA CORP.
By:
-------------------------------------------
Ira B. Lampert
Chairman, President and Chief Executive Officer
CONFIRMED as of the date first
above mentioned, on behalf of
itself and the other several
Underwriters named in Schedule
I hereto.
Raymond James & Associates,
Inc., for itself and as
Representative of the several
Underwriters.
By:
-----------------------------
Name:
----------------------
Title:
----------------------
20
<PAGE>
Exhibit A
<PAGE>
Exhibit B
<PAGE>
Exhibit C
<PAGE>
SCHEDULE I
Number of
Name Firm Shares
---- -----------
Raymond James & Associates, Inc..........................
The Robinson-Humphrey Company, LLC.......................
-----------
TOTAL.........................................
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