{"id":43975,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/underwriting-agreement-theglobe-com-inc-bear-stearns-amp.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"underwriting-agreement-theglobe-com-inc-bear-stearns-amp","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/securities\/underwriting-agreement-theglobe-com-inc-bear-stearns-amp.html","title":{"rendered":"Underwriting Agreement &#8211; TheGlobe.com Inc., Bear, Stearns &#038; Co. Inc, NationsBanc Montgomery Securities LLC, Volpe Brown Whelan &#038; Co. LLC, and Wit Capital Corp."},"content":{"rendered":"<pre>\n                        8,000,000 Shares of Common Stock\n\n\n                               theglobe.com, inc.\n\n                                    FORM OF\n\n                             UNDERWRITING AGREEMENT\n                             ----------------------\n\n     May [___], 1999\n\n\nBEAR, STEARNS &amp; CO. INC.\nNATIONSBANC MONTGOMERY SECURITIES LLC\nVOLPE BROWN WHELAN &amp; COMPANY, LLC\nWIT CAPITAL CORPORATION\n as Representatives of the\n several Underwriters named in\nSchedule I attached hereto\nc\/o Bear, Stearns &amp; Co. Inc.\n245 Park Avenue\nNew York, N.Y.  10167\n\nDear Sirs:\n\n     theglobe.com, inc., a corporation organized and existing under the laws of\nthe State of Delaware (the \"Company\"), Todd V. Krizelman and Stephan J. Paternot\n(collectively, the \"Principal Selling Stockholders\") and those certain selling\nstockholders set forth on Schedule II attached hereto (the \"Other Selling\n                          -----------                                    \nStockholders,\" and collectively, with the Principal Selling Stockholders, the\n\"Selling Stockholders\"), propose, subject to the terms and conditions stated\nherein, to issue and sell to the several underwriters named in Schedule I hereto\n                                                               ----------       \n(the \"Underwriters\") an aggregate of 8,000,000 shares (the \"Firm Shares\") of the\nCompany's common stock, par value $0.001 per share (the \"Common Stock\") and, for\nthe sole purpose of covering over-allotments in connection with the sale of the\nFirm Shares, at the option of the Underwriters, up to an additional 1,200,000\nshares (the \"Additional Shares\") of Common Stock.  Of the Firm Shares, 4,000,000\nare being offered by the Company and 4,000,000 are being offered by the Selling\nStockholders.  The Firm Shares and any Additional Shares purchased by the\nUnderwriters are referred to herein \n\n\n \ncollectively as the \"Shares.\" The Shares are more fully described in the\nRegistration Statement referred to below. The issuance by the Company and the\nsale to the Underwriters of the Firm Shares and the Additional Shares is\nhereinafter referred to as the \"Underwritten Offering.\"\n\n     1.  Representations and Warranties of the Company and the Principal Selling\n         -----------------------------------------------------------------------\nStockholders.  The Company and the Principal Selling Stockholders represent and\n------------                                                                   \nwarrant to, and agree with, the Underwriters that:\n\n     (a)  The Company has filed with the Securities and Exchange Commission (the\n\"Commission\") a registration statement, and may have filed an amendment or\namendments thereto, on Form S-1 (No. 333-76153), for the registration of the\nShares under the Securities Act of 1933, as amended (the \"Act\").  Such\nregistration statement, including the prospectus, financial statements and\nschedules, exhibits and all other documents filed as a part thereof, as amended\nat the time of effectiveness of the registration statement, including any\ninformation deemed to be a part thereof as of the time of effectiveness pursuant\nto paragraph (b) of Rule 430A or Rule 434 of the Rules and Regulations of the\nCommission under the Act (the \"Regulations\"), is herein called the \"Registration\nStatement\" and the prospectus, in the form first filed with the Commission\npursuant to Rule 424(b) of the Regulations or filed as part of the Registration\nStatement at the time of effectiveness if no Rule 424(b) or Rule 434 filing is\nrequired, is herein called the \"Prospectus\".  The term \"preliminary prospectus\"\nas used herein means a preliminary prospectus as described in Rule 430 of the\nRegulations.\n\n     (b)  At the time of the effectiveness of the Registration Statement or any\n462(b) Registration Statement or the effectiveness of any post-effective\namendment to the Registration Statement, when the Prospectus is first filed with\nthe Commission pursuant to Rule 424(b) or Rule 434 of the Regulations, when any\nsupplement to or amendment of the Prospectus is filed with the Commission and at\nthe Closing Date and an Additional Closing Date, if any (as hereinafter\nrespectively defined), the Registration Statement, any 462(b) Registration\nStatement and the Prospectus and any amendments thereof and supplements thereto\ncomplied or will comply in all material respects with the applicable provisions\nof the Act and the Regulations and does not or will not contain an untrue\nstatement of a material fact and does not or will not omit to state any material\nfact required to be stated therein or necessary in order to make the statements\ntherein (i) in the case of the Registration Statement, not misleading and (ii)\nin the case of the Prospectus, in light of the circumstances under which they\nwere made, not misleading.  When the preliminary prospectus dated May 3, 1999\nwas filed with the Commission (whether filed as part of the registration\nstatement for the registration of the Shares or any amendment thereto or\npursuant to Rule 424(a) of the Regulations) and when any amendment thereof or\nsupplement thereto was first filed with the Commission, such preliminary\nprospectus and any amendments thereof and supplements thereto complied in all\nmaterial respects with the applicable provisions of the Act and \n\n                                       2\n\n\n \nthe Regulations and did not contain an untrue statement of a material fact and\ndid not omit to state any material fact required to be stated therein or\nnecessary in order to make the statements therein in light of the circumstances\nunder which they were made not misleading. The Prospectus and any preliminary\nprospectus delivered to the Underwriters for use in connection with the\nOfferings was identical to the electronically transmitted copies thereof filed\nwith the Commission pursuant to EDGAR, except to the extent permitted by\nRegulation S-T. No representation and warranty is made in this subsection (b),\nhowever, with respect to any information contained in or omitted from the\nRegistration Statement or the Prospectus or any related preliminary prospectus\nor any amendment thereof or supplement thereto in reliance upon and in\nconformity with information furnished in writing to the Company by or on behalf\nof any Underwriter through Bear, Stearns &amp; Co. Inc. (\"Bear Stearns\") as herein\nstated expressly for use in connection with the preparation thereof. If Rule 434\nis used, the Company will comply with the requirements of Rule 434.\n\n     (c)  KPMG Peat Marwick, LLP, who have certified the financial statements\nand supporting schedules included in the Registration Statement, are independent\npublic accountants as required by the Act and the Regulations.\n\n     (d)  Subsequent to the respective dates as of which information is given in\nthe Registration Statement and the Prospectus, except as set forth in the\nRegistration Statement and the Prospectus, there has been no change in the\ncapital stock of the Company or the long-term indebtedness of the Company, and\nthere has been no material adverse change in the business, prospects,\nproperties, operations, condition (financial or other), stockholders' equity or\nresults of operations of the Company or its subsidiaries taken as a whole (the\neffect of each such change or development being referred to herein as a\n\"Material Adverse Effect\"), whether or not arising from transactions in the\nordinary course of business, and since the date of the latest balance sheet\npresented in the Registration Statement and the Prospectus, neither the Company\nnor any of its subsidiaries has incurred or undertaken any liabilities or\nobligations, direct or contingent, which are material to the Company and its\nsubsidiaries taken as a whole, except for liabilities or obligations incurred in\nthe ordinary course of business or which are discussed in the Registration\nStatement and the Prospectus.\n\n     (e)  This Agreement and the transactions contemplated herein have been duly\nand validly authorized by the Company and this Agreement has been duly and\nvalidly executed and delivered by the Company.\n\n     (f)  The execution, delivery, and performance of this Agreement and the\nconsummation of the transactions contemplated hereby do not and will not (i)\nconflict with or result in a breach of any of the terms and provisions of, or\nconstitute a default (or an event which with notice or lapse of time, or both,\n\n                                       3\n\n\n \nwould constitute a default) under, require approval or consent under, or result\nin the creation or imposition of any lien, charge or encumbrance upon any\nproperty or assets of the Company or any of its subsidiaries pursuant to, the\nterms of (A) any agreement, instrument, contract, indenture, mortgage, lease,\nlicense, arrangement or understanding to which the Company or any of its\nsubsidiaries is a party, or to which any of their properties or assets are\nsubject (collectively, \"Company Contracts\"), which would have a Material Adverse\nEffect or (B) any governmental franchise, license, permit heretofore issued to\nthe Company or any of its subsidiaries, which would have a Material Adverse\nEffect, or (ii) violate or conflict with any provision of the Fourth Amended and\nRestated Certificate of Incorporation or Bylaws of the Company or any of its\nsubsidiaries or any judgment, decree, order, statute, rule or regulation of any\ncourt or any public, governmental or regulatory agency or body having\njurisdiction over the Company or any of its subsidiaries or any of their\nproperties or assets.  No consent, approval, authorization, order, registration,\nfiling, qualification, license or permit of or with any court or any public,\ngovernmental or regulatory agency or body having jurisdiction over the Company\nor any of its subsidiaries is required for the execution, delivery and\nperformance of this Agreement or the consummation of the transactions\ncontemplated hereby, including the issuance, sale and delivery of the Shares to\nbe issued, sold and delivered by the Company hereunder, except the registration\nunder the Act of the Shares and such consents, approvals, authorizations,\norders, registrations, filings, qualifications, licenses and permits as have\nbeen obtained or may be required under state securities, Blue Sky laws, with the\nNational Association of Securities Dealers, Inc. (the \"NASD\") or under the laws\nof any non-United States jurisdiction, in connection with the purchase and\ndistribution of the Shares by the Underwriters.\n\n     (g)  All of the outstanding shares of the capital stock of the Company and\nits subsidiaries (including the Shares to be sold by the Selling Stockholders\nhereunder) are duly and validly authorized and issued, fully paid and non-\nassessable and were not issued and are not now in violation of or subject to any\npreemptive rights.  The Shares, when issued, delivered and sold in accordance\nwith this Agreement, will be duly and validly issued and outstanding, fully paid\nand non-assessable, and will not have been issued in violation of or be subject\nto any preemptive or similar rights; and, except as described in or expressly\ncontemplated by the Prospectus, there are no outstanding rights (including,\nwithout limitation, preemptive rights), warrants or options to acquire, or\ninstruments convertible into or exchangeable for, any shares of capital stock or\nother equity interests in the Company, or any contract, commitment, agreement,\nunderstanding or arrangement of any kind relating to the issuance of any capital\nstock of the Company and its subsidiaries.  The Company had, at [________],\n1999, an authorized and outstanding capitalization as set forth in the\nRegistration Statement and the Prospectus.  The Common Stock, the Firm Shares\nand the Additional Shares conform to the descriptions thereof contained in the\nRegistration Statement and the Prospectus.\n\n                                       4\n\n\n \n     (h)  Each of the Company and its subsidiaries has been duly organized and\nis validly existing as a corporation in good standing under the laws of its\nstate of incorporation.  Each of the Company and its subsidiaries is duly\nqualified and in good standing as a foreign corporation in each jurisdiction in\nwhich the character or location of its properties (owned, leased or licensed) or\nthe nature or conduct of its business makes such qualification necessary, except\nfor those failures to be so qualified or in good standing which, individually or\nin the aggregate, would not have or reasonably be expected to have a Material\nAdverse Effect.  Each of the Company and its subsidiaries has all requisite\npower and authority, and all material consents, approvals, authorizations,\norders, registrations, qualifications, licenses and permits of and from all\npublic, regulatory or governmental agencies and bodies, to own, lease and\noperate its properties and conduct its business as now being conducted and as\ndescribed in the Registration Statement and the Prospectus, and no such consent,\napproval, authorization, order, registration, qualification, license or permit\ncontains a materially burdensome restriction not adequately disclosed in the\nRegistration Statement and the Prospectus.  There are no contracts or other\ndocuments applicable to the Company or any of its subsidiaries that are required\nto be described in the Registration Statement or Prospectus or to be filed as\nexhibits to the Registration Statement that are not described or filed as\nrequired.\n\n     (i)  Except as described in the Prospectus, there is no litigation or\ngovernmental proceeding to which the Company or any of its subsidiaries is a\nparty or to which any property of the Company or any of its subsidiaries is\nsubject or which is pending or, to the knowledge of the Company, contemplated,\nthreatened against or otherwise affecting the Company or any of its subsidiaries\nwhich, individually or in the aggregate, may reasonably be expected to have a\nMaterial Adverse Effect or which is required to be disclosed in the Registration\nStatement and the Prospectus.\n\n     (j)  Neither the Company nor any of its subsidiaries has taken, nor will\ntake, directly or indirectly, any action designed to cause or result in, or\nwhich constitutes or which might reasonably be expected to constitute, the\nstabilization or manipulation of the price of the shares of Common Stock to\nfacilitate the sale or resale of the Shares.\n\n     (k)  The financial statements, including the notes thereto, and supporting\nschedules included in the Registration Statement and the Prospectus present\nfairly in all material respects the financial position of the Company and its\nconsolidated subsidiaries as of the dates indicated and the results of\noperations of the Company and its consolidated subsidiaries for the periods\nspecified; except as otherwise stated in the Registration Statement, said\nfinancial statements have been prepared in conformity with generally accepted\naccounting principles (\"GAAP\") applied on a consistent basis; and the supporting\nschedules included in the Registration Statement present fairly in all\n\n                                       5\n\n\n \nmaterial respects the information required to be stated therein. The selected\nfinancial data and the summary financial data included in the Prospectus present\nfairly in all material respects the information shown therein and have been\ncompiled on a basis consistent with that of the financial statements included in\nthe Registration Statement. No other financial statements are required by \nForm S-1 or otherwise to be included in the Registration Statement or the\nProspectus other than those included therein.\n\n     (l)  Except as described in the Prospectus, no holder of securities of the\nCompany or any of its subsidiaries has any rights to the registration of such\nsecurities of the Company because of the filing of the Registration Statement or\notherwise in connection with the sale of the Shares contemplated hereby.\n\n     (m)  Neither the Company nor any of its subsidiaries is, or upon\nconsummation of the transactions contemplated hereby will be, subject to\nregistration as an \"investment company\" under the Investment Company Act of\n1940, as amended.\n\n     (n)  Except as described in the Prospectus, the Company and its\nsubsidiaries own or possesses or reasonably believes it can acquire on\nreasonable terms, patents, licenses (but excluding any required regulatory\nlicenses or approvals), inventions (including trade secrets and other unpatented\nand\/or unpatentable proprietary or confidential information, systems or\nprocedures), copyrights, trademarks, service marks, trade names or other\nintellectual property, registrations and applications to register any of the\nforegoing, or that they can contract on reasonable terms with third parties who\ncan acquire such intellectual property which is material to the business now\noperated, or proposed to be operated, by the Company and its subsidiaries, taken\nas a whole (collectively, \"Intellectual Property\") and neither the Company nor\nany of its subsidiaries has received any notice or is otherwise aware of any\ninfringement of or conflict with asserted rights of others with respect to any\nIntellectual Property or of any facts or circumstances which would render any\nIntellectual Property invalid or inadequate to protect the interest of the\nCompany and its subsidiaries and which infringement or conflict (if the subject\nof any unfavorable decision, ruling or finding) or invalidity or inadequacy,\nindividually or in the aggregate, would have or may reasonably be expected to\nhave a Material Adverse Effect.\n\n     (o)  No relationship, direct or indirect, exists between or among the\nCompany or any of its subsidiaries, on the one hand, and the directors,\nofficers, stockholders, customers or suppliers (to the extent that such\ncustomers or suppliers are affiliates of the Company) of the Company or any of\nits subsidiaries, on the other hand, which is required by the Act to be\ndescribed in the Registration Statement and the Prospectus which is not so\ndescribed.\n\n     (p)  The Company and its subsidiaries are in compliance with all\nenvironmental, safety or similar laws or regulations applicable to them or their\nbusiness or property relating to the protection of human health and safety, the\nenvironment or hazardous or toxic substances or wastes, pollutants or\ncontaminants and the disposal of hazardous or toxic substances, wastes,\npollutants and contaminants, except those which,\n\n                                       6\n\n\n \nindividually or in the aggregate, would not have or reasonably be expected to\nhave a Material Adverse Effect.\n\n          (q)  Neither the Company nor any of its subsidiaries is in violation\nor breach of, or in default under (nor has an event occurred that with notice,\nlapse of time or both, would constitute a default under), any Company Contract,\nwhere such violation, breach or default would have a Material Adverse Effect,\nand each Company Contract is in full force and effect, and is the legal, valid\nand binding obligation of the Company or such subsidiary, as the case may be,\nand (subject to (i) applicable bankruptcy, insolvency, reorganization,\nfraudulent transfer, moratorium or similar laws affecting the enforceability of\ncreditors' rights generally and (ii) general principles of equity, including\nwithout limitation, standards of materiality, good faith, fair dealing and\nreasonableness and limits on the availability of equitable remedies) is\nenforceable as to the Company or such subsidiary, as the case may be, in\naccordance with its terms.\n\n          (r)  The Company and its subsidiaries maintain systems of internal\naccounting controls sufficient to provide reasonable assurances that (i)\ntransactions are executed in accordance with management's general or specific\nauthorization; (ii) transactions are recorded as necessary to permit preparation\nof financial statements in conformity with GAAP and to maintain accountability\nfor assets; (iii) the access to the respective assets of the Company and each\nsuch subsidiary is permitted only in accordance with management's general or\nspecific authorization; and (iv) the recorded accountability for assets is\ncompared with existing assets at reasonable intervals and appropriate action is\ntaken with respect to any differences.\n\n          (s)  There are no existing or, to the knowledge of the Company,\nthreatened labor disputes with the employees of the Company or any of its\nsubsidiaries which are likely, individually or in the aggregate, to have or may\nreasonably be expected to have a Material Adverse Effect.\n\n          (t)  Each employee benefit plan, within the meaning of Section 3(3) of\nthe Employee Retirement Income Security Act of 1974, as amended (\"ERISA\"), that\nis maintained, administered or contributed to by the Company or any of its\naffiliates for employees or former employees of the Company and its affiliates\nhas been maintained in compliance with its terms and the requirements of any\napplicable statutes, orders, rules and regulations, including but not limited to\nERISA and the Internal Revenue Code of 1986, as amended (\"Code\").  No prohibited\ntransaction, within the meaning of Section 406 of ERISA or Section 4975 of the\nCode has occurred with respect to any such plan excluding transactions effected\npursuant to a statutory or administrative exemption.  For each such plan which\nis subject to the funding rules of Section 412 of the Code or Section 302 of\nERISA no \"accumulated funding deficiency\" as defined in Section 412 of the Code\nhas incurred, whether or not waived, and the fair market value of the assets of\neach such plan (excluding for these purposes accrued but unpaid contributions)\nexceeded the present value of all benefits accrued under such plan determined\nusing reasonable actuarial assumptions.\n\n                                       7\n\n\n \n          (u)  The Company has and its consolidated subsidiaries have filed all\nforeign, federal, state and local tax returns that are required to be filed or\nhas requested extensions therefor (except in any case in which the failure to so\nfile would not have or reasonably be expected to have, individually or in the\naggregate, a Material Adverse Effect) and the Company and its consolidated\nsubsidiaries have paid all material taxes required to be paid by it and any\nother assessment, fine or penalty levied against it, to the extent that any of\nthe foregoing is due and payable, except for any such assessment, fine or\npenalty that is currently being contested in good faith.\n\n          (v)  Each of the Company and its subsidiaries maintain general\nliability insurance with respect to physical damage to its assets, against such\nlosses and risks and in such amounts as are prudent and customary in the\nbusinesses in which the Company and each such subsidiary is engaged.  Neither\nthe Company nor any of its subsidiaries have any reason to believe that it will\nnot be able to renew its existing insurance coverage from similar insurers as\nmay be necessary to continue in its business.\n\n          (w)  Except as described in the Registration Statement and as shall be\ndescribed in the Prospectus, the Company and each of its subsidiaries has (i)\ngood and marketable title to all real and personal properties owned by it, free\nand clear of all liens, security interests, pledges, charges, encumbrances and\nmortgages, and (ii) valid, subsisting and enforceable leases for all real and\npersonal properties leased by it, in either case (i) or (ii) above, subject to\nsuch exceptions as, individually or in the aggregate, would not have or\nreasonably be expected to have a Material Adverse Effect.  No real property\nowned, leased, licensed or used by the Company or any of its subsidiaries lies\nin an area that is, or to the best knowledge of the Company will be, subject to\nzoning, use or building code restrictions that would prohibit, and no state of\nfacts relating to the actions or inaction of another person or entity or his,\nher or its ownership, leasing, licensing or use of such real property in the\nbusiness of the Company or any of its subsidiaries as presently conducted or as\nthe Prospectus indicates are contemplated to be conducted, subject to such\nexceptions as, individually or in the aggregate, would not have or reasonably be\nexpected to have a Material Adverse Effect.\n\n          (x)  Except as disclosed in the Registration Statement or the\nProspectus, there are no issues related to the Company's or any of its\nsubsidiaries' preparedness for the Year 2000 that might reasonably be expected\nto result in any Material Adverse Effect.  All internal computer systems and\neach Constituent Component (as defined below) of those systems and all computer-\nrelated products and each Constituent Component of those products of the Company\nand each of its subsidiaries comply in all material respects with Year 2000\nQualification Requirements.  \"Year 2000 Qualification Requirements\" means that\nthe internal computer systems and each Constituent Component of those systems\nand all computer-related products and each Constituent Component of those\nproducts of the Company and each of its subsidiaries (i) have been reviewed to\nconfirm that they store, process (including sorting and performing mathematical\noperations, calculations and computations), input and output data containing\ndate and information correctly regardless of whether the date contains dates \n\n                                       8\n\n\n \nand times before, on or after January 1, 2000, (ii) have been designated to\nensure date and time entry recognition and calculations, and date data interface\nvalues that reflect the century, (iii) accurately manage and manipulate data\ninvolving dates and times, including single century formulas and multi-century\nformulas, and will not cause an abnormal ending scenario within the application\nor generate incorrect values or invalid results involving such dates, (iv)\naccurately process any date rollover, and (v) accept and respond to two-digit\nyear date input in a manner that resolves any ambiguities as to the century.\n\"Constituent Component\" means all software (including operating systems,\nprograms, packages and utilities), firmware, hardware, networking components,\nand peripherals provided as part of the configuration. The Company and each of\nits subsidiaries has inquired of material vendors as to their preparedness for\nthe Year 2000 and to its knowledge, except as disclosed in the Registration\nStatement or the Prospectus, there are no issues relating to such vendors' Year\n2000 preparedness that might reasonably be expected to result in any Material\nAdverse Effect.\n\n     2.  Representations and Warranties of the Selling Stockholders.  Each of\n         -----------------------------------------------------------         \nthe Selling Stockholders, with respect to itself, represents, warrants and\ncovenants to, and agrees with, each Underwriter and the Company as follows:\n\n     (a)  This Agreement has been duly authorized (to the extent due\nauthorization is a relevant concept to such Selling Stockholder), executed and\ndelivered by or on behalf of such Selling Stockholder and is a valid and binding\nagreement of such Selling Stockholder, enforceable in accordance with its terms,\nexcept as rights to indemnification and contribution hereunder may be limited by\napplicable law and except as the enforcement hereof may be limited by\nbankruptcy, insolvency, reorganization, moratorium or other similar laws\nrelating to or affecting the rights and remedies of creditors or by general\nequitable principles.\n \n     (b)  Each of the (1) Custody Agreement signed by such Selling Stockholder\nand American Stock Transfer &amp; Trust Company as custodian (the \"Custodian\"),\nrelating to the deposit of the Shares to be sold by such Selling Stockholder\n(the \"Custody Agreement\") and (2) Power of Attorney appointing certain\nindividuals named therein as such Selling Stockholder's attorneys-in-fact (each,\nan \"Attorney-in-Fact\") to the extent set forth therein relating to the\ntransactions contemplated hereby and by the Prospectus (the \"Power of\nAttorney\"), of such Selling Stockholder has been duly authorized (to the extent\ndue authorization is a relevant concept to such Selling Stockholder), executed\nand delivered by such Selling Stockholder and is a valid and binding agreement\nof such Selling Stockholder, enforceable in accordance with its terms, except as\nrights to indemnification and contribution thereunder may be limited by\napplicable law and except as the enforcement thereof may be limited by\nbankruptcy, insolvency, reorganization, moratorium or other similar laws\nrelating to or affecting the rights and remedies of creditors or by general\nequitable principles.  Each Selling Stockholder agrees that the Shares to be\nsold by such Selling Stockholder on deposit with the Custodian is subject to the\ninterests of the Custodian, that the arrangements made for such custody are\nirrevocable to the extent set forth in the Custody Agreement, and that \n\n                                       9\n\n\n \nthe obligations of such Selling Stockholder hereunder shall not be terminated,\nexcept as provided in this Agreement or in the Custody Agreement, by any act of\nthe Selling Stockholder, by operation of law, by death or incapacity of such\nSelling Stockholder or by the occurrence of any other event. If such Selling\nStockholder should die or become incapacitated, or if any other event should\noccur, before the delivery of the Shares to be sold by such Selling Stockholder\nhereunder, the documents evidencing the Shares to be sold by such Selling\nStockholder then on deposit with the Custodian shall be delivered by the\nCustodian in accordance with the terms and conditions of this Agreement as if\nsuch death, incapacity or other event had not occurred, regardless of whether or\nnot the Custodian shall have received notice thereof and to the extent permitted\nby law.\n\n     (c)  Such Selling Stockholder is the lawful owner of the Shares to be sold\nby such Selling Stockholder hereunder and has, and on the Closing Date and an\nAdditional Closing Date, if any, will have, good and valid title to all of the\nShares which may be sold by such Selling Stockholder pursuant to this Agreement\non such date and the legal right and power, and all authorizations and approvals\nrequired by law and, where applicable, under its charter or by-laws, partnership\nagreement, trust agreement or other organizational documents to enter into this\nAgreement and its Custody Agreement and Power of Attorney, to sell, transfer and\ndeliver all of the Shares which may be sold by such Selling Stockholder pursuant\nto this Agreement and to comply with its other obligations hereunder and\nthereunder, and upon sale and delivery of, and payment for, such Shares, as\nprovided herein, such Selling Stockholder will convey good and marketable title\nto such Shares, free and clear of all liens, encumbrances, equities and claims\nwhatsoever, assuming that you are bona fide purchasers.\n\n     (d)  No consent, approval, authorization or order of any court or\ngovernmental agency or body is required for the consummation by such Selling\nStockholder of the transactions contemplated herein, except such as may be\nrequired under the Act, state securities laws, Blue Sky laws, the rules of the\nNASD, the laws of any non-United States jurisdiction or except as have been\nobtained or may be required, and where applicable, will not conflict with or\nconstitute a breach of any of the terms or provisions of, or a default under,\nthe charter or Bylaws of such Selling Stockholder, if applicable, or any\nagreement, indenture or other instrument to which such Selling Stockholder is a\nparty of by which such Selling Stockholder or property of such Selling\nStockholder is bound, or violate or conflict with any laws, administrative\nregulation or ruling or court decree applicable to such Selling Stockholder or\nproperty of such Selling Stockholder.\n\n     (e)  Such Selling Stockholder does not have any registration or other\nsimilar rights to have any equity or debt securities registered for sale by the\nCompany under the Registration Statement or included in the offering\ncontemplated by this Agreement, except for such rights as are described in the\nProspectus.\n \n     (f)  Such Selling Stockholder does not have, or has waived prior to the\ndate hereof, any preemptive right, co-sale right or right of first refusal or\nother similar \n\n                                       10\n\n\n \nright to purchase any of the Shares that are to be sold by the Company or any of\nthe other Selling Stockholders to the Underwriters pursuant to this Agreement;\nand such Selling Stockholder does not own any warrants, options or similar\nrights to acquire, and does not have any right or arrangement to acquire, any\ncapital stock, right, warrants, options or other securities from the Company,\nother than those described in the aggregate in the Registration Statement and\nthe Prospectus.\n\n     (g)  All information furnished by or on behalf of such Selling Stockholder\nin its capacity as a Selling Stockholder in writing expressly for use in the\nRegistration Statement and Prospectus is, and on the Closing Date and an\nAdditional Closing Date, if any, will be, true, correct, and complete in all\nmaterial respects, and does not, and on the Closing Date and an Additional\nClosing Date, if any, will not, contain any untrue statement of a material fact\nor omit to state any material fact, in either case relating to such Selling\nStockholder, necessary to make such information not misleading.\n\n     (h)  Such Selling Stockholder has not taken and will not take, directly or\nindirectly, any action designed to or that might be reasonably expected to cause\nor result in stabilization or manipulation of the price of any security of the\nCompany to facilitate the sale or resale of the Shares, and other than as\npermitted by the Act, such Selling Stockholder has not distributed and will not\ndistribute any prospectus or other offering material in connection with the\noffering and sale or resale of the Shares.\n\n     (i)  Neither the Selling Stockholder nor any of the Selling Stockholder's\naffiliates directly, or indirectly through one or more intermediaries, controls,\nis controlled by, or is under common control with, or had any other association\nwith (within the meaning of Article I of the Bylaws of the NASD), any member\nfirm of the NASD.\n\n     (j)  At any time during the period described in Section 5(a) hereof, if\nthere is any change in the information referred to in Section 2(f) above, such\nSelling Stockholder will immediately notify you of such change.\n\n     (k)  Such Selling Stockholder, where applicable, has been duly organized\nand is a validly existing as a corporation or organization under its\njurisdiction of incorporation or organization, as the case may be.\n\n     (l)  Any certificate, including, without limitation, any custody agreement,\npower of attorney, irrevocable election to sell, questionnaire and certificate\nof Selling Stockholder (collectively, the \"Selling Stockholder Documents\")\nsigned by or on behalf of such Selling Stockholder and delivered to the\nRepresentatives or to counsel for the Underwriters shall be deemed to be a\nrepresentation and warranty by such Selling Stockholder to each Underwriter as\nto the matters covered thereby.\n\n                                       11\n\n\n \n     3.  Purchase, Sale and Delivery of the Shares.\n         ------------------------------------------\n\n                (a)  On the basis of the representations, warranties, covenants\nand agreements herein contained, but subject to the terms and conditions herein\nset forth, (i) the Company agrees to issue and sell to the Underwriters and the\nUnderwriters, severally and not jointly, agree to purchase from the Company, an\naggregate of 4,000,000 Firm Shares and (ii) the Selling Stockholders, severally\nand not jointly, agree to sell to the Underwriters and the Underwriters,\nseverally and not jointly, agree to purchase from the Selling Stockholders, an\naggregate of 4,000,000 Firm Shares, each Selling Stockholder selling the number\nof Firm Shares set forth opposite such Selling Stockholder's name on Schedule II\n                                                                     -----------\nhereto.  On the basis of the representations, warranties, covenants and\nagreements herein contained, the Underwriters, severally and not jointly, agree\nto purchase from the Company and the Selling Stockholders, at a purchase price\nper share of $[____], the number of Firm Shares set forth opposite the\nrespective names of the Underwriters in Schedule I hereto,  plus any additional\n                                        ----------                             \nnumber of Shares which such Underwriter may become obligated to purchase\npursuant to the provisions of Section 10 hereof.\n\n                (b)  Payment of the purchase price for, and delivery of the Firm\nShares shall be made at the office of Morrison &amp; Foerster LLP, 1290 Avenue of\nthe Americas, New York, New York 10104-0050, or at such other place as shall be\nagreed upon by Bear Stearns and the Company, at 10:00 A.M., New York City time,\non the third Business Day (as permitted under Rule 15c6-1 under the Securities\nExchange Act of 1934, as amended (the \"Exchange Act\")) (unless postponed in\naccordance with the provisions of Section 10 hereof) following the date of the\neffectiveness of the Registration Statement (or, if the Company has elected to\nrely upon Rule 430A of the Regulations, the third or fourth Business Day (as\npermitted under Rule 15c6-1 under the Exchange Act) after the determination of\nthe public offering price of the Shares), or such other time not later than ten\nBusiness Days after such date as shall be agreed upon by you and the Company\n(such time and date of payment and delivery being herein called the \"Closing\nDate\"). As used herein, the term \"Business Day\" means any day other than a day\non which banks are permitted or required to be closed in New York City. Payment\nshall be made to the Company and the Selling Stockholders, (or the Custodian\nnamed in the Custody Agreement on behalf of the Selling Stockholders), by wire\ntransfer of immediately available funds, against delivery to you for the\nrespective accounts of the Underwriters of the Firm Shares to be purchased by\nthem. Each Selling Stockholder hereby agrees that (i) it will pay all stock\ntransfer taxes, stamp duties and other similar taxes, if any, payable upon the\nsale or delivery of the Shares to be sold by such Selling Stockholder to the\nseveral Underwriters, or otherwise in connection with the performance of such\nSelling Stockholders' obligations hereunder and (ii) the Custodian is authorized\nto deduct for such payment any such amounts from the proceeds to such Selling\nStockholder hereunder and to hold such amounts for the account of such Selling\nStockholder with the Custodian under the Custody Agreement. Certificates for the\nFirm Shares shall be registered in such name or\n\n                                       12\n\n\n \nnames and in such authorized denominations as you may request in writing at\nleast two full Business Days prior to the Closing Date. The Company will permit\nyou to examine and package such certificates for delivery at least one full\nBusiness Day prior to the Closing Date. If you so elect, delivery of the Firm\nShares purchased from the Company may be made by credit through full fast\ntransfer to the account(s) at The Depository Trust Company designated by you.\n\n     (c)  In addition, the Company and Dancing Bear Investments, Inc. (\"Dancing\nBear\") hereby grant to the Underwriters the option to purchase up to 1,200,000\nAdditional Shares at the same purchase price per share to be paid by the\nUnderwriters to the Company and the Selling Stockholders for the Firm Shares as\nset forth in this Section 3, for the sole purpose of covering over-allotments in\nthe sale of Firm Shares by the Underwriters; provided, however, that if the\n                                             --------  -------             \nunderwriters elect to exercise such option, Dancing Bear shall determine how\nmany additional shares it desires to sell (which may be zero) and it shall only\nbe obligated to sell the number of shares it so desires to sell and the Company\nshall be responsible for selling the remaining shares necessary to satisfy such\noption exercise.  This option may be exercised at any time, in whole or in part\nand from time to time, on or before the thirtieth day following the date of the\nProspectus, by written notice by you to Dancing Bear and the Company.  Such\nnotice shall set forth the aggregate number of Additional Shares as to which the\noption is being exercised and the date and time, as reasonably determined by\nyou, when the Additional Shares are to be delivered (any such date and time\nbeing herein sometimes referred to as an \"Additional Closing Date\"); provided,\n                                                                     -------- \nfurther, however, that an Additional Closing Date shall not be earlier than the\n-------  -------                                                               \nClosing Date or earlier than the second full Business Day after the date on\nwhich the option shall have been exercised nor later than the eighth full\nbusiness day after the date on which the option shall have been exercised\n(unless such time and date are postponed in accordance with the provisions of\nSection 10 hereof).  Certificates for the Additional Shares shall be registered\nin such name or names and in such authorized denominations as you may request in\nwriting at least two full Business Days prior to an Additional Closing Date.  If\nyou so elect, delivery of the Shares purchased from the Company may be made by\ncredit through full fast transfer to the account(s) at The Depository Trust\nCompany designated by you.\n\n     The number of Additional Shares to be sold to each Underwriter shall be the\nnumber which bears the same ratio to the aggregate number of Additional Shares\nbeing purchased as the number of Firm Shares set forth opposite the name of such\nUnderwriter in Schedule I hereto (or such number increased as set forth in\n               ----------                                                 \nSection 10 hereof) bears to 8,000,000, subject, however, to such adjustments to\neliminate any fractional shares as you in your sole discretion shall make.\n\n     Payment for the Additional Shares shall be made by wire transfer in\nimmediately available funds upon delivery of the Additional Shares to you for\nthe respective accounts of the Underwriters.\n\n                                       13\n\n\n \n     4.  Offering.  Upon the Company's authorization of the release of the\n         --------                                                         \nShares, the Underwriters propose to offer the Shares for sale to the public upon\nthe terms set forth in the Prospectus.\n\n     5.  Covenants of the Company; Covenants of the Selling Stockholders.\n         --------------------------------------------------------------- \n\n     (a) The Company covenants and agrees with the Underwriters that:\n\n     (i)  If the Registration Statement has not yet been declared effective, the\nCompany will use its reasonable best efforts to cause the Registration Statement\nand any amendments thereto to become effective as promptly as possible, and if\nRule 430A is used or the filing of the Prospectus is otherwise required under\nRule 424(b) or Rule 434, the Company will file the Prospectus (properly\ncompleted if Rule 430A has been used) pursuant to Rule 424(b) or Rule 434 within\nthe prescribed time period and will provide evidence satisfactory to you of such\ntimely filing.  If the Company elects to rely on Rule 434, the Company will\nprepare and file a term sheet that complies with the requirements of Rule 434.\n\n     The Company will notify you as promptly as possible (and, if requested by\nyou, will confirm such notice in writing) (A) when the Registration Statement\nand any amendments thereto become effective, (B) of any request by the\nCommission for any amendment of or supplement to the Registration Statement or\nthe Prospectus or for any additional information, (C) of the mailing or the\ndelivery to the Commission for filing of any amendment of or supplement to the\nRegistration Statement or the Prospectus, (D) of the issuance by the Commission\nof any stop order suspending the effectiveness of the Registration Statement or\nany post-effective amendment thereto or of the initiation, or the threatening,\nof any proceedings therefor, (E) of the receipt of any comments from the\nCommission, and (F) of the receipt by the Company of any notification with\nrespect to the suspension of the qualification of the Shares for sale in any\njurisdiction or the initiation or threatening of any proceeding for that\npurpose.  If the Commission shall propose or enter a stop order at any time, the\nCompany will make every reasonable effort to prevent the issuance of any such\nstop order and, if issued, to obtain the lifting of such order as soon as\npossible.  The Company will not file any amendment to the Registration Statement\nor any amendment of or supplement to the Prospectus (including the prospectus\nrequired to be filed pursuant to Rule 424(b) or Rule 434) that differs from the\nprospectus on file at the time of the effectiveness of the Registration\nStatement before or after the effective date of the Registration Statement to\nwhich you shall reasonably object in writing in a timely fashion based on the\ncircumstances after being timely furnished in advance a copy thereof.\n\n     (ii)  If at any time when a prospectus relating to the Shares is required\nto be delivered under the Act any event shall have occurred as a \n\n                                       14\n\n\n \nresult of which the Prospectus as then amended or supplemented would, in the\njudgment of the Company include an untrue statement of a material fact or omit\nto state any material fact required to be stated therein or necessary to make\nthe statements therein, in the light of the circumstances under which they were\nmade, not misleading, or if it shall be necessary at any time to amend or\nsupplement the Prospectus or Registration Statement to comply with the Act or\nthe Regulations, the Company will notify you promptly and prepare and file with\nthe Commission an appropriate amendment or supplement (in form and substance\nsatisfactory to you) which will correct such statement or omission and will use\nits reasonable best efforts to have any amendment to the Registration Statement\ndeclared effective as soon as possible.\n\n     (iii)  The Company will promptly deliver to you two conformed copies of the\nRegistration Statement, including exhibits and all amendments thereto, and the\nCompany will promptly deliver to each of the Underwriters such number of copies\nof the preliminary prospectus dated on May 3, 1999, any amendment thereof, the\nProspectus, the Registration Statement, and all amendments of and supplements to\nsuch documents, if any, as you may reasonably request.\n\n     (iv)  The Company will endeavor in good faith, in cooperation with you, at\nor prior to the time of effectiveness of the Registration Statement, to qualify\nthe Shares for offering and sale under the securities laws relating to the\noffering or sale of the Shares of such jurisdictions (domestic or foreign) as\nyou may designate and to maintain such qualification in effect for so long as\nrequired for the distribution thereof; except that in no event shall the Company\nbe obligated in connection therewith to qualify as a foreign corporation or to\nexecute a general consent to service of process.\n\n     (v)  The Company will make generally available (within the meaning of\nSection 11(a) of the Act) to its security holders and to you as soon as\npracticable, but not later than 45 days after the end of its fiscal quarter in\nwhich the first anniversary date of the effective date of the Registration\nStatement occurs, an earnings statement (in form complying with the provisions\nof Rule 158 of the Regulations) covering a period of at least twelve (12)\nconsecutive months beginning after the effective date of the Registration\nStatement.\n\n     (vi)  The Company shall cause to be prepared and delivered, at its expense,\nwithin one (1) Business Day from the effective date of this Agreement, to the\nUnderwriters an \"electronic Prospectus\" to be used by the Underwriters in\nconnection with the offering and sale of the Shares.  As used herein, the term\n\"electronic Prospectus\" means a form of Prospectus, and any amendment or\nsupplement thereto, that meets each of the following conditions: (A) it shall be\nencoded in an electronic format, satisfactory to Bear Stearns, that may be\ntransmitted electronically by Bear Stearns and the other Underwriters to\nofferees and purchasers \n\n                                       15\n\n\n \nof the Shares for at least during the period when the Prospectus is required to\nbe delivered under the Act or the Exchange Act; (B) it shall disclose the same\ninformation as the paper Prospectus and Prospectus filed pursuant to EDGAR,\nexcept to the extent that graphic and image material cannot be disseminated\nelectronically, in which case such graphic and image material shall be replaced\nin the electronic Prospectus with a fair and accurate narrative description or\ntabular representation of such material, as appropriate; and (C) it shall be in\nor convertible into a paper format or an electronic format, satisfactory to Bear\nStearns, that will allow investors to store and have continuously ready access\nto the Prospectus at any future time, without charge to investors (other than\nany fee charged for subscription to the system as a whole and for on-line time).\nSuch electronic Prospectus may consist of a Rule 434 preliminary prospectus,\ntogether with the applicable term sheet, provided that it otherwise satisfies\nthe format and conditions described in the immediately preceding sentence. The\nCompany hereby confirms that it has included or will include in the Prospectus\nfiled pursuant to EDGAR or otherwise with the Commission and in the Registration\nStatement at the time it was declared effective an undertaking that, upon\nreceipt of a request by an investor or his or her representative within the\nperiod when the Prospectus is required to be delivered under the Act or the\nExchange Act, the Company shall transmit or cause to be transmitted promptly,\nwithout charge, a paper copy of the Prospectus.\n\n     (vii)  During the period of 90 days from the date of the Prospectus, the\nCompany will not, without your prior written consent, directly or indirectly,\nissue, sell, offer or agree to sell, except pursuant to any stock option or\nincentive plan described in the Prospectus or the sale of Shares hereunder,\ngrant any option for the sale of, pledge, make any short sale, establish an open\n\"put equivalent position\" within the meaning of Rule 16a-1(h) under the Exchange\nAct or otherwise dispose of any Common Stock (or any securities convertible\ninto, exercisable for or exchangeable for Common Stock).  The foregoing sentence\nshall not apply to shares of Common Stock issued in connection with any merger,\nrecapitalization consolidation or acquisition of stock or assets by the Company\nor its subsidiaries, provided that the Company obtains the undertaking in the\nforegoing sentence from the holders of such shares in connection with a\nconsummated transaction.  The Company will obtain the undertaking of each of its\nofficers and directors as have been heretofore designated by you and listed on\nSchedule III attached hereto, which undertaking shall be substantially in the\n------------                                                                 \nform set forth in Exhibit A attached hereto.  The Company agrees not to waive\n                  ---------                                                  \nany undertaking obtained pursuant to this paragraph without the prior written\nconsent of Bear Stearns on behalf of the Underwriters.\n\n     (viii)  The Company will apply the proceeds from the sale of the Shares as\nset forth under \"Use of Proceeds\" in the Prospectus.\n\n                                       16\n\n\n \n     (ix)  The Company will use its best efforts to cause the Shares to be\napproved for quotation on the National Association of Securities Dealers\nAutomated Quotation National Market System (\"Nasdaq\").\n\n \n\n     (b)  Each Selling Stockholder covenants and agrees with the Underwriters\nthat:\n\n     (i)  Other than the Shares sold pursuant to this Agreement, such Selling\nStockholder will not, during the period of 90 days from the date of the\nProspectus, without your prior written consent, directly or indirectly, issue,\nsell, offer or agree to sell, except pursuant to any stock option or incentive\nplan described in the Prospectus or the sale of Shares hereunder, grant any\noption for the sale of, pledge, make any short sale, establish an open \"put\nequivalent position\" within the meaning of Rule 16a-1(h) under the Exchange Act\nor otherwise dispose of any Common Stock (or any securities convertible into,\nexercisable for or exchangeable for Common Stock) of the Company or of any of\nits subsidiaries.  The foregoing sentence shall not apply to (A) the issuance of\nany shares of Common Stock upon the exercise of an option or warrant or the\nconversion of a security outstanding on the date hereof and referred to in the\nRegistration Statement; (B) the pledge by the undersigned of shares of Common\nStock to a financial institution in connection with a bona fide financing\ntransaction; (C) transfers of shares of Common Stock to immediate family members\nor trusts for the benefit of such family members, provided such transferee\nenters into a similar lock-up agreement, (D) the transfer of all or part of any\nwarrants held by Dancing Bear on the date hereof to any employee of Dancing\nBear, provided that any such employee shall have executed a similar lock-up\nagreement or (E) the transfer by Dancing Bear of shares of Common Stock to\nentities under common control with Dancing Bear, provided that each such\ntransferee shall have executed a similar lock-up agreement.  Furthermore, such\nSelling Stockholder has agreed and consented to the entry of stop transfer\ninstructions with the Company's transfer agent against the transfer of the\nsecurities held by such Selling Stockholder except in compliance with the\nforegoing restrictions.\n\n     (ii)  Such Selling Stockholder will not take, prior to the termination of\nthe underwriting arrangement contemplated by this Agreement, directly or\nindirectly, any action designed to cause or result in, or which constitutes or\nwhich might reasonably be expected to constitute, the stabilization or\nmanipulation of the price of the shares of Common Stock to facilitate the sale\nor resale of the Shares.\n\n     (iii)  Such Selling Stockholder will deliver to the Representatives prior\nto the Closing Date a properly completed and executed United States Treasury\nDepartment Form W-8 (if the Selling Stockholder is a non-United States person)\nor Form W-9 (if the Selling Stockholder is a United States person).\n\n                                       17\n\n\n \n     (iv)  Such Selling Stockholder will pay or to cause to be paid all transfer\ntaxes with respect to the Shares to be sold by such Selling Stockholder.\n\n     6.  Payment of Expenses.  Whether or not the transactions contemplated in\n         -------------------                                                  \nthis Agreement are consummated, or this Agreement is terminated, the Company\nhereby agrees to pay all costs and expenses incident to the performance of the\nobligations of the Company hereunder, including those in connection with (i)\npreparing, printing, duplicating, filing and distributing the Registration\nStatement, as originally filed and all amendments thereof (including all\nexhibits thereto), any preliminary prospectus, the Prospectus and any amendments\nor supplements thereto (including, without limitation, fees and expenses of the\nCompany's accountants and counsel), the underwriting documents (including this\nAgreement and the Agreement Among Underwriters) and all other documents related\nto the public offering of the Shares (including those supplied to the\nUnderwriters in quantities as hereinabove stated), (ii) the issuance, transfer\nand delivery of the Shares to the Underwriters, including any transfer or other\ntaxes payable thereon, (iii) the qualification of the Shares under state or\nforeign securities or Blue Sky laws, including the costs of printing and mailing\na preliminary and final \"Blue Sky Survey\" and the fees of counsel for the\nUnderwriters and such counsel's disbursements in relation thereto, (iv)\nquotation of the Shares on Nasdaq, (v) filing fees of the Commission and the\nNASD; (vi) the cost of printing certificates representing the Shares, and (vii)\nthe cost and charges of any transfer agent or registrar, (viii) the fees and\nexpenses of counsel to the Selling Stockholders (to the extent the Company has\nagreed to pay) and (ix)  all other costs and expenses incident to the\nperformance of the Company's and the Selling Stockholders' (to the extent the\nCompany has agreed to pay) obligations hereunder (including costs incurred in\nclosing the purchase of the Additional Shares, if any) that are not otherwise\nspecifically provided for in this Section 6.\n\n     7.  Conditions of Underwriters' Obligations.  The obligations of the\n         ---------------------------------------                         \nUnderwriters to purchase and pay for the Firm Shares and the Additional Shares,\nas provided herein, shall be subject to the accuracy of the representations and\nwarranties of the Company herein contained, as of the date hereof and as of the\nClosing Date (for purposes of this Section 6 \"Closing Date\" shall refer to the\nClosing Date for the Firm Shares and all Additional Closing Dates, if different,\nfor the Additional Shares), to the absence from any certificates, opinions,\nwritten statements or letters furnished to you or to Morrison &amp; Foerster LLP\n(\"Underwriters' Counsel\") pursuant to this Section 7 of any misstatement or\nomission, to the performance by the Company of its obligations hereunder, and to\nthe following additional conditions:\n\n     (a)  The Registration Statement shall have become effective not later than,\nif pricing pursuant to Rule 430A, 5:30 P.M., New York City time, on the date of\nthis Agreement, or at such later time and date as shall have been consented to\nin writing by you; if the Company shall have elected to rely upon Rule 430A or\nRule 434 of the Regulations, the Prospectus shall have been filed with the\nCommission in a timely fashion in accordance with Section 5(a) hereof; and, at\nor \n\n                                       18\n\n\n \nprior to the Closing Date no stop order suspending the effectiveness of the\nRegistration Statement or any post-effective amendment thereof shall have been\nissued and no proceedings therefor shall have been initiated or threatened by\nthe Commission.\n\n     (b)  All the representations and warranties of the Selling Stockholders\ncontained in this Agreement shall be true and correct on the Closing Date with\nthe same force and effect as if made on and as of the Closing Date, and you\nshall have received a certificate to such effect, dated the Closing Date, from\nthe Selling Stockholders.\n\n     (c)  At the Closing Date you shall have received the opinion of Fried,\nFrank, Harris, Shriver &amp; Jacobson, counsel for the Company, dated the Closing\nDate addressed to the Underwriters and in form and substance satisfactory to\nUnderwriters' Counsel, to the effect that:\n\n        (i)   Each of the Company and its subsidiaries is duly incorporated and\n     is validly existing as a corporation in good standing under the laws of its\n     jurisdiction of incorporation, based upon certificates of public officials\n     of such state, with all requisite corporate power and authority to own its\n     properties and conduct its business as described in the Prospectus.\n\n        (ii)  Each of the Company and its subsidiaries is duly qualified and in\n     good standing as a foreign corporation in each jurisdiction in which the\n     character or location of its properties (owned, leased or licensed) or the\n     nature or conduct of its business makes such qualification necessary,\n     except for those failures to be so qualified which will not in the\n     aggregate have a material adverse effect on the Company and its\n     subsidiaries, taken as a whole.\n\n        (iii) The Company has an authorized capital stock as set forth in the\n     Prospectus under the caption \"Capitalization,\" and all of the issued shares\n     of capital stock of the Company (including the Shares being delivered to\n     the Underwriters on the date hereof) have been duly authorized, validly\n     issued and are fully paid and non-assessable (assuming that they are paid\n     for in accordance with the terms of this Agreement) and will not be issued\n     in violation of or subject to any preemptive rights under the Fourth\n     Amended and Restated Certificate of Incorporation of the Company; and the\n     Common Stock, including the Firm Shares and the Additional Shares, conform\n     as to legal matters to the descriptions thereof contained in the\n     Prospectus.\n\n        (iv)  The Common Stock and the Shares are duly authorized for listing on\n     Nasdaq.\n\n                                       19\n\n\n \n        (v)    The Company has the requisite corporate power and authority to\n     execute, deliver and perform its obligations under this Agreement.\n\n        (vi)   The Company has taken all necessary corporate action to authorize\n     the execution, delivery and performance of its obligations under this\n     Agreement and has duly executed and delivered this Agreement. \n\n        (vii)  To the knowledge of such counsel, there is no pending or\n     threatened action, suit or proceeding before any court or governmental\n     agency, authority or body or any arbitrator against the Company or any of\n     its subsidiaries, of a character required to be disclosed in the\n     Registration Statement which is not adequately disclosed in the Prospectus.\n\n        (viii) The execution and delivery by the Company of and the performance\n     by the Company of its obligations under this Agreement (A) do not require\n     under the federal laws of the United States of America, the laws of the\n     State of New York or the General Corporation law of the State of Delaware\n     any filing or registration by the Company or any of its subsidiaries with,\n     or approval or consent to the Company or any of its subsidiaries of, any\n     governmental agency or authority of the United States of America or the\n     States of New York or Delaware, except those that have been made or\n     obtained, or the failure of which to make or obtain would not have a\n     material adverse effect on the Company or any of its subsidiaries, taken as\n     a whole, (B) do not contravene any provision of the Fourth Amended and\n     Restated Certificate of Incorporation or the By-Laws of the Company, and\n     (C) do not violate (1) any present law, or present regulation of any\n     governmental agency or authority, of the States of New York or Delaware or\n     the United States of America known by such counsel to be applicable to the\n     Company or any of its subsidiaries or its property or (2) any agreement or\n     any court decree or order binding upon the Company or any of its\n     subsidiaries or its property (such opinion being limited (x) to those\n     agreements, decrees or orders, if any, that have been listed in an\n     officer's certificate and (y) in that such counsel need express no opinion\n     with respect to any violation not readily ascertainable from the face of\n     any such agreement or court decree or order, or arising under or based upon\n     any cross-default provision insofar as it relates to a default under an\n     agreement or court order or decree not so listed, or arising under or based\n     upon any covenant of a financial or numerical nature or requiring\n     computation); which violation would have a material adverse effect on the\n     Company or any of its subsidiaries, taken as a whole.\n\n                                       20\n\n\n \n        (ix)  The Registration Statement and the Prospectus, as of their\n     respective effective or issue dates (other than the financial statements,\n     notes or schedules included or omitted in the Registration Statement or the\n     Prospectus or other financial or accounting data included in or omitted\n     from the Registration Statement or Prospectus, as to which we express no\n     opinion) appeared on their face to be responsive as to form in all material\n     respects with the applicable requirements of the Act.\n\n        (x)   The Registration Statement has been declared effective by the\n     Commission under the Act.  To the knowledge of such counsel, no stop order\n     suspending the effectiveness of the Registration Statement has been issued\n     under the Act and no proceedings for such purpose have been instituted or\n     are pending or are contemplated or threatened by the Commission.  Any\n     required filing of the Prospectus pursuant to Rule 424(b) under the\n     Securities Act has been made in the manner and within the time period\n     required by such Rule 424(b).\n\n        In addition, such counsel shall state that in the course of the\n     preparation of the Registration Statement and the Prospectus such counsel\n     participated in conferences with certain of the officers and\n     representatives of, and the independent public accountants for, the\n     Company. Such counsel shall state that between the date of the Registration\n     Statement and the time of delivery of their opinion, they participated in\n     additional conferences with certain officers and representatives of the\n     Company at which the contents of the Registration Statement and the\n     Prospectus were discussed to a limited extent. Such counsel may state that\n     given the limitations inherent in the independent verification of factual\n     matters and the character of determinations involved in the registration\n     process, they are not passing upon and do not assume any responsibility for\n     the accuracy, completeness or fairness of the statements contained in the\n     Registration Statement or the Prospectus. Such counsel shall state that\n     subject to the foregoing and on the basis of the information they gained in\n     the course of the performance of the services referred to above, including\n     information obtained from offices and representatives of the Company, no\n     facts have come to their attention that cause them to believe that the\n     Registration Statement, at the time the Registration Statement became\n     effective, contained any untrue statement of a material fact or omitted to\n     state a material fact required to be stated therein or necessary to make\n     the statements therein not misleading or that the Prospectus, as of its\n     date, contained any untrue statement of a materials fact or omitted to\n     state a material fact necessary in order to make the statements therein, in\n     light of the circumstances under which they were made, not misleading.\n     Also, such counsel shall state that, subject to the foregoing, no facts\n     have come to their attention in the course of the proceedings described in\n     the second sentence of this paragraph that cause them to believe that the\n     Prospectus,\n\n                                       21\n\n\n \n     as of the date and time of delivery of their opinion letter, contains any\n     untrue statement of a material fact or omits to state any material\n     necessary in order to make the statements therein, in light of the\n     circumstances under which they were made, not misleading. In each case,\n     however, such counsel shall not be required to express any view or belief\n     with respect to (x) financial statements, notes or schedules included or\n     omitted in the Registration Statement or the Prospectus or (y) other\n     financial or accounting data included in the Registration Statement or the\n     Prospectus.\n\n        In rendering such opinion, such counsel may rely (x) as to matters\n     involving the application of laws other than the laws of the United States\n     and jurisdictions in which they are admitted, to the extent such counsel\n     deems proper and to the extent specified in such opinion, if at all, upon\n     an opinion or opinions (in form and substance reasonably satisfactory to\n     Underwriters' Counsel) of other counsel reasonably acceptable to\n     Underwriters' Counsel, familiar with the applicable laws; (y) as to matters\n     of fact, to the extent they deem proper, on certificates of officers of the\n     Company and certificates or other written statements of officers of\n     departments of various jurisdictions having custody of documents respecting\n     the corporate existence or good standing of the Company and its\n     subsidiaries, provided that copies of any such statements or certificates\n     shall be delivered to Underwriters' Counsel.  The opinion of such counsel\n     for the Company shall state that the opinion of any such other counsel is\n     in form satisfactory to such counsel and, in their opinion, you and they\n     are justified in relying thereon.\n\n                (d)  At the Closing Date you shall have received the opinion of\nCooley Godward LLP, special intellectual property counsel for the Company, dated\nthe Closing Date addressed to the Underwriters and in form and substance\nsatisfactory to the Underwriters' counsel.\n\n                (e)   At the Closing Date you shall have received the opinion of\neach counsel for the Selling Stockholders, dated the Closing Date addressed to\nthe Underwriters and in form and substance satisfactory to Underwriters'\nCounsel, to the effect that:\n\n                      (i)  Each Selling Stockholder has full legal right, power\n     and authority, and any approval required by law (other than any approval\n     imposed by the applicable state securities and Blue Sky laws), to sell,\n     assign, transfer and deliver the Shares to be sold by such Selling\n     Stockholder in the manner provided in this Agreement.\n\n                      (ii)  Each Selling Stockholder has good and clear title to\n     the certificates for the Shares to be sold by such Selling Stockholder, and\n     upon delivery thereof pursuant hereto and payment\n\n                                       22\n\n\n \n     therefor, good and clear title will pass to the Underwriters, severally,\n     free of all restrictions on transfer, liens, encumbrances, security\n     interests and claims whatsoever.\n\n                      (iii)  This Agreement has been duly and validly\n     authorized, executed and delivered by each Selling Stockholder and is a\n     valid and binding agreement of each Selling Stockholder.\n\n                      (iv)   The power of attorney signed by each Selling\n     Stockholder appointing Michael S. Egan, Todd V. Krizelman and Stephan J.\n     Paternot as such Selling Stockholder's attorney-in-fact, to the extent set\n     forth therein with regard to the transactions contemplated hereby and by\n     the Registration Statement, has been duly authorized, executed and\n     delivered by or on behalf of such Selling Stockholder and is the valid and\n     binding instrument of such Selling Stockholder enforceable in accordance\n     with its terms, and pursuant to such power of attorney, each Selling\n     Stockholder has authorized such attorney-in-fact, to execute and deliver on\n     such Selling Stockholder's behalf this Agreement and any other document\n     necessary or desirable in connection with the transactions contemplated\n     hereby and to deliver the Shares to be sold by such Selling Stockholder\n     pursuant to this Agreement.\n\n                      (v)    Where applicable, each Selling Stockholder has been\n     duly organized and is validly existing as a corporation or organization\n     under its jurisdiction of incorporation or organization, as the case may\n     be.\n\n                      (vi)   The execution, delivery and performance of this\n     Agreement by the Selling Stockholders, compliance by the Selling\n     Stockholders with all the provisions hereof and the consummation of the\n     transactions contemplated hereby will not require any consent, approval,\n     authorization or other order of any court, regulatory body, administrative\n     agency or other governmental body (except as such may be required under the\n     Act, state securities laws or Blue Sky laws or except as such may have been\n     obtained) and will not conflict with or constitute a breach of any of the\n     terms or provisions of, or a default under, the charter or by-laws of each\n     of the Selling Stockholders, if applicable, or any material agreement,\n     indenture or other instrument to which any of the Selling Stockholders is a\n     party or by which any of the Selling Stockholders or property of any of the\n     Selling Stockholders is bound, or violate or conflict with any laws,\n     administrative regulation or ruling or court decree applicable to any of\n     the Selling Stockholders or property of any of the Selling Stockholders.\n\n        In rendering such opinion, such counsel may rely (x) as to matters\n     involving the application of laws other than the laws of the United States\n\n                                       23\n\n\n \n     and jurisdictions in which they are admitted, to the extent such counsel\n     deems proper and to the extent specified in such opinion, if at all, upon\n     an opinion or opinions (in form and substance reasonably satisfactory to\n     Underwriters' Counsel) of other counsel reasonably acceptable to\n     Underwriters' Counsel, familiar with the applicable laws; (y) as to matters\n     of fact, to the extent they deem proper and is applicable, on certificates\n     of officers of the Selling Stockholders and certificates or other written\n     statements of officers of departments of various jurisdictions having\n     custody of documents respecting the corporate existence or good standing of\n     the Selling Stockholders, provided that copies of any such statements or\n     certificates shall be delivered to Underwriters' Counsel.  The opinion of\n     such counsel for the Company shall state that the opinion of any such other\n     counsel is in form satisfactory to such counsel and, in their opinion, you\n     and they are justified in relying thereon.\n\n                (f)  All proceedings taken in connection with the sale of the\nFirm Shares and the Additional Shares as herein contemplated shall be reasonably\nsatisfactory in form and substance to you and to Underwriters' Counsel, and the\nUnderwriters shall have received from said Underwriters' Counsel a favorable\nopinion, dated as of the Closing Date with respect to the issuance and sale of\nthe Firm Shares, and as of the Additional Closing Date with respect to the\nAdditional Shares, the Registration Statement and the Prospectus and such other\nrelated matters as you may reasonably require, and the Company shall have\nfurnished to Underwriters' Counsel such documents as they reasonably request for\nthe purpose of enabling them to pass upon such matters.\n\n                (g)  At the Closing Date you shall have received a certificate\nof either Co-Chief Executive Officer and the Chief Financial Officer of the\nCompany, dated the Closing Date to the effect that (i) the condition set forth\nin subsection (a) of this Section 7 has been satisfied, (ii) as of the date\nhereof and as of the Closing Date the representations and warranties of the\nCompany set forth in Section 1 hereof are accurate in all material respects,\n(iii) as of the Closing Date the obligations of the Company to be performed\nhereunder on or prior thereto have been duly performed in all material respects\nand (iv) subsequent to the respective dates as of which information is given in\nthe Registration Statement and the Prospectus, the Company has not sustained any\nmaterial loss or interference with its respective businesses or properties from\nfire, flood, hurricane, accident or other calamity, whether or not covered by\ninsurance, or from any labor dispute or any legal or governmental proceeding,\nand there has not been any material adverse change, or any development involving\na material adverse change, in the business prospects, properties, operations,\ncondition (financial or otherwise), or results of operations of the Company,\nexcept in each case as described in or contemplated by the Prospectus.\n\n                (h)  At the time this Agreement is executed and at the Closing\nDate, you shall have received a letter, from KPMG Peat Marwick, LLP, independent\npublic accountants for the Company, dated, respectively, as of the date of this\nAgreement\n\n                                       24\n\n\n \nand as of the Closing Date addressed to the Underwriters and in form and\nsubstance satisfactory to you.\n\n                (i)  Prior to the Closing Date the Company and the Selling\nStockholders shall have furnished to you such further information, certificates\nand documents as you may reasonably request.\n\n                (j)  You shall have received from each person who is a director\nor officer of the Company as have been heretofore designated by you and listed\non Schedule III hereto an agreement, in the form set forth in Exhibit A\n   --------                                                   ---------\nattached hereto. The Company agrees not to waive any undertaking obtained\npursuant to this paragraph without the prior written consent of Bear Stearns,\nwhich consent shall be on behalf of the Underwriters.\n\n                (k)  At the Closing Date, the Shares shall have been approved\nfor quotation on Nasdaq, subject to official notice of issuance.\n\n                (l)  Prior to the Closing Date, and with respect to the\nAdditional Shares, prior to an Additional Closing Date, the Company shall have\nfurnished to you such further information, certificates and documents as you may\nreasonably request.\n\n     If any of the conditions specified in this Section 7 shall not have been\nfulfilled when and as required by this Agreement, or if any of the certificates,\nopinions, written statements or letters furnished to you or to Underwriters'\nCounsel pursuant to this Section 7 shall not be in all material respects\nreasonably satisfactory in form and substance to you and to Underwriters'\nCounsel, all obligations of the Underwriters hereunder may be cancelled by you\nat, or at any time prior to, the Closing Date and the obligations of the\nUnderwriters to purchase the Additional Shares may be cancelled by you at, or at\nany time prior to, an Additional Closing Date.  Notice of such cancellation\nshall be given to the Company in writing, or by telephone, telex or telegraph,\nconfirmed in writing.\n\n\n     8.  Indemnification.\n         ----------------\n\n                (a)  The Company, on the one hand, and the Principal Selling\nStockholders, jointly and severally, on the other hand agree to indemnify and\nhold harmless each Underwriter and each person, if any, who controls any\nUnderwriter within the meaning of Section 15 of the Act or Section 20(a) of the\nExchange Act, against any and all losses, liabilities, claims, damages and\nexpenses whatsoever as incurred (including but not limited to reasonable\nattorneys' fees and any and all reasonable expenses whatsoever incurred in\ninvestigating, preparing or defending against any litigation, commenced or\nthreatened, or any claim whatsoever, and any and all amounts paid in settlement\nof any claim or litigation), joint or several, to which they or any of them may\nbecome subject under the Act, the Exchange Act or otherwise, insofar as such\nlosses, liabilities, claims, damages or expenses (or actions in respect thereof)\narise out of or are based upon any untrue statement or alleged untrue statement\nof a material fact contained\n\n                                       25\n\n\n \nin the registration statement for the registration of the Shares, as originally\nfiled or any amendment thereof, or the preliminary prospectus dated May 3, 1999\nor any amendment thereof or the Prospectus, or in any supplement thereto or\namendment thereof, or arise out of or are based upon the omission or alleged\nomission to state therein a material fact required to be stated therein or\nnecessary to make the statements therein not misleading; provided, however, \n                                                         --------  ------- \nthat the Company and the Principal Selling Stockholders will not be liable in\nany such case to the extent but only to the extent that any such loss,\nliability, claim, damage or expense arises out of or is based upon any such\nuntrue statement or alleged untrue statement or omission or alleged omission\nmade therein in reliance upon and in conformity with written information\nfurnished to the Company by or on behalf of any Underwriter through you\nexpressly for use therein, provided, further, however, that with respect to\n                           --------  -------  -------     \nany preliminary prospectus, the foregoing indemnity agreement shall not inure to\nthe benefit of any Underwriter from whom the person asserting any loss, claim,\ndamage, liability or expense purchased Shares, or any person controlling such\nUnderwriter if a copy of the Prospectus (as then amended or supplemented if the\nCompany shall have furnished any amendments or supplements thereto) was not sent\nor given by or on behalf of such Underwriter to such person, if required by law\nso to have been delivered, at or prior to the written confirmation of the sale\nof the Shares to such person, and if the Prospectus (as so amended or\nsupplemented) would have cured the defect giving rise to such loss, claim,\ndamage liability or expense, provided, further, however, that each Principal\n                             --------  -------  -------                     \nSelling Stockholder shall be liable hereunder in any case only to the extent of\nthe total net proceeds from the Underwriters for the Shares sold by such\nPrincipal Selling Stockholder.\n\n     (b)  The Other Selling Stockholders severally agree to indemnify and hold\nharmless each Underwriter and each person, if any, who controls any Underwriter\nwithin the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act\nagainst any and all losses, liabilities, claims, damages and expenses whatsoever\nas incurred (including but not limited to attorneys' fees and any and all\nexpenses whatsoever incurred in investigating, preparing or defending against\nany litigation, commenced or threatened, or any claim whatsoever, and any and\nall amounts paid in settlement of any claim or litigation), joint or several, to\nwhich it may become subject as a result of or based upon any breach of any\nwarranty or covenant of such Selling Stockholder contained in Sections 2(c),\n2(d) and 2(g) herein; provided, however, that with regard to liability under\n                      --------  -------                                     \nthis Section, such Selling Stockholder shall not be liable to the extent that\nany such loss, liability, claim, damage or expense arises out of or is based\nupon any such untrue statement or alleged untrue statement or omission or\nalleged omission made therein in reliance upon and in conformity with written\ninformation furnished to the Company by or on behalf of any Underwriter through\nBear Stearns expressly for use therein; and provided, further, however, that\n                                            --------  -------  -------      \neach Other Selling Stockholder shall be liable hereunder in any case only to the\nextent of the total net proceeds from the Underwriters for the Shares sold by\nsuch Other Selling Stockholder.  This indemnity agreement will be in addition to\nany liability which each Other Selling Stockholder may otherwise have, including\nunder this Agreement.\n\n                                       26\n\n\n \n                (c)  Each Underwriter severally, and not jointly, agrees to\nindemnify and hold harmless the Company, each of the directors of the Company,\neach of the officers of the Company who shall have signed the Registration\nStatement, the Selling Stockholders and each other person, if any, who controls\nthe Company within the meaning of Section 15 of the Act or Section 20(a) of the\nExchange Act, against any losses, liabilities, claims, damages and expenses\nwhatsoever as incurred (including but not limited to attorneys' fees and any and\nall expenses whatsoever incurred in investigating, preparing or defending\nagainst any litigation, commenced or threatened, or any claim whatsoever, and\nany and all amounts paid in settlement of any claim or litigation), jointly or\nseveral, to which they or any of them may become subject under the Act, the\nExchange Act or otherwise, insofar as such losses, liabilities, claims, damages\nor expenses (or actions in respect thereof) arise out of or are based upon any\nuntrue statement or alleged untrue statement of a material fact contained in the\nregistration statement for the registration of the Shares, as originally filed\nor any amendment thereof, or any related preliminary prospectus or the\nProspectus, or in any amendment thereof or supplement thereto, or arise out of\nor are based upon the omission or alleged omission to state therein a material\nfact required to be stated therein or necessary to make the statements therein\nnot misleading, in each case to the extent, but only to the extent, that any\nsuch loss, liability, claim, damage or expense arises out of or is based upon\nany such untrue statement or alleged untrue statement or omission or alleged\nomission made therein in reliance upon and in conformity with written\ninformation furnished to the Company by or on behalf of any Underwriter through\nyou expressly for use therein; provided, however, that in no case shall any\n                               --------  -------                           \nUnderwriter be liable or responsible for any amount in excess of the\nunderwriting discount applicable to the Shares purchased by such Underwriter\nhereunder.  This indemnity will be in addition to any liability which any\nUnderwriter may otherwise have including under this Agreement.  The Company\nacknowledges that the statements set forth in the [last] paragraph of the cover\npage of the Prospectus, and in the [fifth] paragraph, the [sixth] paragraph, the\n[seventh] paragraph and the [eighth] paragraph under the caption \"Underwriting\"\nin the Prospectus constitute the only information furnished in writing by or on\nbehalf of any Underwriter expressly for use in the registration statement\nrelating to the Shares as originally filed or in any amendment thereof, any\nrelated preliminary prospectus or the Prospectus or in any amendment thereof or\nsupplement thereto, as the case may be.\n\n                (d)  Promptly after receipt by an indemnified party under\nsubsection (a), (b) or (c) above of notice of the commencement of any action,\nsuch indemnified party shall, if a claim in respect thereof is to be made\nagainst the indemnifying party under such subsection, notify each party against\nwhom indemnification is to be sought in writing of the commencement thereof (but\nthe failure so to notify an indemnifying party shall not relieve it from any\nliability which it may have under this Section 8). In case any such action is\nbrought against any indemnified party, and it notifies an indemnifying party of\nthe commencement thereof, the indemnifying party will be entitled to participate\ntherein, and to the extent it may elect by written notice delivered to the\nindemnified party promptly after receiving the aforesaid notice from such\nindemnified party, to assume the defense thereof with counsel reasonably\nsatisfactory to\n\n                                       27\n\n\n \nsuch indemnified party. Notwithstanding the foregoing, the indemnified party or\nparties shall have the right to employ its or their own counsel in any such\ncase, but the fees and expenses of such counsel shall be at the expense of such\nindemnified party or parties unless (i) the employment of such counsel shall\nhave been authorized in writing by one of the indemnifying parties in connection\nwith the defense of such action, (ii) the indemnifying parties shall not have\nemployed counsel to have charge of the defense of such action within a\nreasonable time after notice of commencement of the action, or (iii) such\nindemnified party or parties shall have reasonably concluded that there may be\ndefenses available to it or them which are different from or additional to those\navailable to one or all of the indemnifying parties (in which case the\nindemnifying parties shall not have the right to direct the defense of such\naction on behalf of the indemnified party or parties), in any of which events\nsuch fees and expenses shall be borne by the indemnifying parties. In no event\nshall the indemnifying parties be liable for fees and expenses of more than one\ncounsel (in addition to any local counsel) separate from their own counsel for\nall indemnified parties in connection with any one action or separate but\nsimilar or related actions in the same jurisdiction arising out of the same\ngeneral allegations or circumstances, and which counsel, in the event that the\nindemnifying party is Bear Stearns, shall be approved by Bear Stearns, whose\napproval shall not be unreasonably withheld. Anything in this subsection to the\ncontrary notwithstanding, an indemnifying party shall not be liable for any\nsettlement of any claim or action effected without its written consent;\nprovided, however, that such consent was not unreasonably withheld.\n\n\n     9.  Contribution.\n         ------------ \n\n                [(a)  In order to provide for contribution in circumstances in\nwhich the indemnification provided for in Section 8 hereof, if otherwise\napplicable in accordance with its terms, is for any reason (i) held to be\nunavailable from any indemnifying party or (ii) is insufficient to hold harmless\na party indemnified thereunder, the Company, the Selling Stockholders and the\nUnderwriters shall contribute to the aggregate losses, claims, damages,\nliabilities and expenses of the nature contemplated by such indemnification\nprovision (including any investigation, legal and other expenses incurred in\nconnection with, and any amount paid in settlement of, any action, suit or\nproceeding or any claims asserted, but after deducting in the case of losses,\nclaims, damages, liabilities and expenses suffered by the Company or the Selling\nStockholders any contribution received by the Company or the Selling\nStockholders from persons, other than the Underwriters, who may also be liable\nfor contribution, including persons who control the Company within the meaning\nof Section 15 of the Act or Section 20(a) of the Exchange Act, officers of the\nCompany who signed the Registration Statement and directors of the Company) as\nincurred to which the Company, the Selling Stockholders and one or more of the\nUnderwriters may be subject, in such proportions as is appropriate to reflect\nthe relative benefits received by the Company and the Principal Selling\nStockholders, collectively, each Other Selling Stockholder and the Underwriters\nfrom the offering of the Shares or, if such allocation is not permitted by\napplicable law or\n\n                                       28\n\n\n \nindemnification is not available as a result of the indemnifying party not\nhaving received notice as provided in Section 8 hereof, in such proportion as is\nappropriate to reflect not only the relative benefits referred to above but also\nthe relative fault of the Company and the Underwriters in connection with the\nstatements or omissions which resulted in such losses, claims, damages,\nliabilities or expenses, as well as any other relevant equitable considerations.\nThe relative benefits received by the Company and the Principal Selling\nStockholders, collectively, each Other Selling Stockholder and the Underwriters\nshall be deemed to be in the same proportion as (x) the total proceeds from the\noffering (net of underwriting discounts and commissions but before deducting\nexpenses) received by the Company and the Principal Selling Stockholders, on the\none hand, and each Other Selling Stockholder, on the other hand, and (y) the\nunderwriting discounts and commissions received by the Underwriters,\nrespectively, in each case as set forth in the table on the cover page of the\nProspectus.  The relative fault of the Company and the Principal Selling\nStockholders, collectively, each Other Selling Stockholder and the Underwriters\nshall be determined by reference to, among other things, whether the untrue or\nalleged untrue statement of a material fact or the omission or alleged omission\nto state a material fact relates to information supplied by the Company and the\nPrincipal Selling Stockholders, collectively, each Other Selling Stockholder or\nthe Underwriters and the parties' relative intent, knowledge, access to\ninformation and opportunity to correct or prevent such statement or omission.\nThe Company, the Principal Selling Stockholders, and each Other Selling\nStockholder and the Underwriters agree that it would not be just and equitable\nif contribution pursuant to this Section 9 were determined by pro rata\nallocation (even if the Underwriters were treated as one entity for such\npurpose) or by any other method of allocation that does not take account of the\nequitable considerations referred to above.  Notwithstanding the provisions of\nthis Section 9, (i) in no case shall any Underwriter be liable or responsible\nfor any amount in excess of the underwriting discount applicable to the Shares\npurchased by such Underwriter hereunder, and (ii) no person guilty of fraudulent\nmisrepresentation (within the meaning of Section 11(f) of the Act) shall be\nentitled to contribution from any person who was not guilty of such fraudulent\nmisrepresentation.  Notwithstanding the provisions of this Section 9 and the\npreceding sentence, no Underwriter shall be required to contribute any amount in\nexcess of the amount by which the total price at which the Shares underwritten\nby it and distributed to the public were offered to the public exceeds the\namount of any damages that such Underwriter has otherwise been required to pay\nby reason of such untrue or alleged untrue statement or omission or alleged\nomission.  For purposes of this Section 9, each person, if any, who controls an\nUnderwriter within the meaning of Section 15 of the Act or Section 20(a) of the\nExchange Act shall have the same rights to contribution as such Underwriter, and\neach person, if any, who controls the Company within the meaning of Section 15\nof the Act or Section 20(a) of the Exchange Act, each officer of the Company who\nshall have signed the Registration Statement and each director of the Company\nshall have the same rights to contribution as the Company, subject in each case\nto clauses (i) and (ii) of this Section 9.  Any party entitled to contribution\nwill, promptly after receipt of notice of commencement of any action, suit or\nproceeding against such party in respect of which a claim for contribution may\nbe made against another party or parties, notify each party or parties from whom\ncontribution may be sought, but the omission to so notify \n\n                                       29\n\n\n \nsuch party or parties shall not relieve the party or parties from whom\ncontribution may be sought from any obligation it or they may have under this\nSection 9 or otherwise. No party shall be liable for contribution with respect\nto any action or claim settled without its consent; provided, however, that \n                                                    --------  -------\nsuch consent was not unreasonably withheld. The liability of each Selling\nStockholder under this Section 9 shall be limited to an amount equal to the\ntotal net proceeds from the Underwriters for the Shares sold by each such\nSelling Stockholder to the Underwriters. Each Selling Stockholder who is not an\nofficer or director of the Company hereby designates CT Corporation, whose\naddress is 1633 Broadway, New York, New York, as its authorized agent, upon\nwhich process may be served in any action, suit or proceeding which may be\ninstituted in any state or federal court in the State of New York by any\nUnderwriter or person controlling an Underwriter asserting a claim for\nindemnification or contribution under or pursuant to Section 8 hereof or this\nSection 9, and each such Selling Stockholder shall accept the jurisdiction of\nsuch court in such action, and waives, to the fullest extent permitted by\napplicable law, any defense based upon lack of personal jurisdiction or venue\ntogether with any right to trial by jury. A copy of any such process shall be\nsent or given to such Selling Stockholders at the address for notices specified\nin the Selling Shareholder Documents.]\n\n                (b)  The obligations of the Company under Sections 8 and 9\nherein shall be in addition to any liability which the Company may otherwise\nhave.\n\n     10.  Default by an Underwriter.\n          ------------------------- \n\n                (a)  If any Underwriter or Underwriters shall default in its or\ntheir obligation to purchase Firm Shares or Additional Shares hereunder, and if\nthe Firm Shares or Additional Shares with respect to which such default relates\ndo not (after giving effect to arrangements, if any, made by you pursuant to\nsubsection (b) below) exceed in the aggregate 10% of the number of Firm Shares\nor Additional Shares, the Firm Shares or Additional Shares to which the default\nrelates shall be purchased by the non-defaulting Underwriters in proportion to\nthe respective proportions which the numbers of Firm Shares set forth opposite\ntheir respective names in Schedule I hereto bear to the aggregate number of Firm\n                          ----------                                            \nShares set forth opposite the names of the non-defaulting Underwriters.\n\n                (b)  In the event that such default relates to more than 10% of\nthe Firm Shares or Additional Shares, as the case may be, you may in your\ndiscretion arrange for yourself or for another party or parties (including any\nnon-defaulting Underwriter or Underwriters who so agree) to purchase such Firm\nShares or Additional Shares, as the case may be, to which such default relates\non the terms contained herein. In the event that within five (5) calendar days\nafter such a default you do not arrange for the purchase of the Firm Shares or\nAdditional Shares, as the case may be, to which such default relates as provided\nin this Section 10, this Agreement or, in the case of a default with respect to\nthe Additional Shares, the obligations of the Underwriters to purchase and of\nthe Company to sell the Additional Shares shall thereupon terminate, without\nliability on the part of the Company, the Selling Stockholders (except in each\ncase as provided in Sections 6, 8(a) and 9 hereof) or the Underwriters with\nrespect thereto, but nothing in this\n\n                                       30\n\n\n \nAgreement shall relieve a defaulting Underwriter or Underwriters of its or their\nliability, if any, to the other Underwriters and the Company and the Selling\nStockholders for damages occasioned by its or their default hereunder.\n\n                (c)  In the event that the Firm Shares or Additional Shares to\nwhich the default relates are to be purchased by the non-defaulting\nUnderwriters, or are to be purchased by another party or parties as aforesaid,\neither you on the one hand or the Company and the Selling Stockholders on the\nother hand shall have the right to postpone the Closing Date or an Additional\nClosing Date, as the case may be for a period, not exceeding five Business Days,\nin order to effect whatever changes may thereby be made necessary in the\nRegistration Statement or the Prospectus or in any other documents and\narrangements, and the Company agrees to file promptly any amendment or\nsupplement to the Registration Statement or the Prospectus which, in the opinion\nof the Company's counsel and the Underwriters' Counsel, may thereby be made\nnecessary or advisable. The term \"Underwriter\" as used in this Agreement shall\ninclude any party substituted under this Section 10 with like effect as if it\nhad originally been a party to this Agreement with respect to such Firm Shares\nand Additional Shares.\n\n     11.  Survival of Representations and Agreements.  All representations and\n          ------------------------------------------                          \nwarranties, covenants and agreements of the Underwriters and the Company and the\nSelling Stockholders contained in this Agreement, including the agreements\ncontained in Section 6, the indemnity agreements contained in Section 8 and the\ncontribution agreements contained in Section 9, shall remain operative and in\nfull force and effect regardless of any investigation made by or on behalf of\nany Underwriter or any controlling person thereof or by or on behalf of the\nCompany, any of its officers and directors or any controlling person thereof or\nby or on behalf of any of the Selling Stockholders, and shall survive delivery\nof and payment for the Shares to and by the Underwriters.  The representations\ncontained in Section 1 and Section 2 hereof and the agreements contained in\nSections 6, 8, 9 and 12(d) hereof shall survive the termination of this\nAgreement, including termination pursuant to Section 10 or 12 hereof.\n\n     12.  Effective Date of Agreement; Termination.\n          ---------------------------------------- \n\n                (a)  This Agreement shall become effective, upon the later of\nwhen (i) you and the Company shall have received notification of the\neffectiveness of the Registration Statement or (ii) the execution of this\nAgreement. If either the price of the Underwritten Offering or the purchase\nprice per Share has not been agreed upon prior to 5:00 P.M., New York City time,\non the fifteenth full Business Day after the Registration Statement shall have\nbecome effective, this Agreement shall thereupon terminate without liability to\nthe Company or the Underwriters except as herein expressly provided. Until this\nAgreement becomes effective as aforesaid, it may be terminated by the Company by\nnotifying you or by you notifying the Company. Notwithstanding the foregoing,\nthe provisions of this Section 12 and of Sections 1, 2 6, 8 and 9 hereof shall\nat all times be in full force and effect.\n\n                                       31\n\n\n \n                (b)  You shall have the right to terminate this Agreement at any\ntime prior to the Closing Date or the obligations of the Underwriters to\npurchase the Additional Shares at any time prior to an Additional Closing Date,\nas the case may be, if (A) any domestic or international event or act or\noccurrence has materially disrupted, or in your opinion will in the immediate\nfuture materially disrupt, the market for the Company's securities or securities\nin general; or (B) if trading on the New York Stock Exchange or Nasdaq shall\nhave been suspended, or minimum or maximum prices for trading shall have been\nfixed, or maximum ranges for prices for securities shall have been required by\nthe New York Stock Exchange or Nasdaq or by order of the Commission or any other\ngovernmental authority having jurisdiction; or (C) if a banking moratorium has\nbeen declared by a state or federal authority or if any new restriction\nmaterially adversely affecting the distribution of the Firm Shares or the\nAdditional Shares, as the case may be, shall have become effective; or (D) (i)\nif the United States becomes engaged in hostilities or there is an escalation of\nhostilities involving the United States or there is a declaration of a national\nemergency or war by the United States or (ii) if there shall have been such\nchange in political, financial or economic conditions if the effect of any such\nevent in (i) or (ii) as in your judgment makes it impracticable or inadvisable\nto proceed with the offering, sale and delivery of the Firm Shares or the\nAdditional Shares, as the case may be, on the terms contemplated by the\nProspectus.\n\n                (c)  Any notice of termination pursuant to this Section 12 shall\nbe by telephone, telex, or telegraph, confirmed in writing.\n\n                (d)  If this Agreement shall be terminated pursuant to any of\nthe provisions hereof (otherwise than pursuant to (i) notification by you as\nprovided in Section 12(a) hereof or (ii) Section 10(b) or 12(b) hereof), or if\nthe sale of the Shares provided for herein is not consummated because any\ncondition to the obligations of the Underwriters set forth herein is not\nsatisfied or because of any refusal, inability or failure on the part of the\nCompany to perform any agreement herein or comply with any provision hereof, the\nCompany will, subject to demand by you, reimburse the Underwriters for all out-\nof-pocket expenses (including the fees and expenses of their counsel), incurred\nby the Underwriters in connection herewith.\n\n     13.  Notices.  All communications hereunder, except as may be otherwise\n          -------                                                           \nspecifically provided herein, shall be in writing and , if sent to any\nUnderwriter, shall be mailed, delivered, or telexed or faxed and confirmed in\nwriting, to such Underwriter c\/o Bear, Stearns &amp; Co. Inc., 245 Park Avenue, New\nYork, N.Y. 10167, Fax (212) 272-3092, Attention: Corporate Finance Department,\nwith a copy to Allen L. Weingarten, Esq. c\/o Morrison &amp; Foerster LLP, 1290\nAvenue of the Americas, New York, New York 10104; if sent to the Company, shall\nbe mailed, delivered, or faxed and confirmed in writing to theglobe.com, inc.,\n31 West 21st Street, 4th Floor, New York, New York 10010, Fax (212) 367-8588,\nAttention: Todd Krizelman and Stephan Paternot, with a copy to Stuart H.\nGelfond, Esq. c\/o Fried Frank, Harris, Shriver &amp; Jacobson, 1 New York Plaza, New\nYork, New York 10004; and if sent to the Selling Stockholders, shall be mailed,\n\n                                       32\n\n\n \ndelivered, or faxed and confirmed in writing, with respect to each Selling\nStockholder, the address specified in the Selling Stockholder Documents.\n\n     14.  Parties.  This Agreement shall insure solely to the benefit of, and\n          -------                                                            \nshall be binding upon, the Underwriters, each Selling Stockholder and the\nCompany and the controlling persons, directors, officers, employees and agents\nreferred to in Section 8 and Section 9, and their respective successors and\nassigns, and no other person shall have or be construed to have any legal or\nequitable right, remedy or claim under or in respect of or by virtue of this\nAgreement or any provision herein contained.  The term \"successors and assigns\"\nshall not include a purchaser, in its capacity as such, of Shares from any of\nthe Underwriters.\n\n     15.  Failure of One or More of the Selling Stockholders to Sell and Deliver\n          ----------------------------------------------------------------------\nCommon Shares.  If one or more of the Selling Stockholders shall fail to sell\n-------------                                                                \nand deliver to the Underwriters the Shares to be sold and delivered by such\nSelling Stockholders at the Closing Date pursuant to this Agreement, the Company\nhereby agrees, at the option of the Underwriters, to sell and deliver to the\nUnderwriters any or all of the Shares (the \"Company Reallocation\") not sold and\ndelivered by such Selling Stockholders and each Selling Stockholder agrees, at\nthe option of the Underwriters, to sell and deliver to the Underwriters any or\nall of the Shares (the \"Selling Stockholder Reallocation\") not sold and\ndelivered by such Selling Stockholders, to the extent that such Selling\nStockholder has elected to sell shares of Common Stock pursuant to the Selling\nStockholder Documents in excess of the amount such Selling Stockholder has\nagreed to sell thereunder.  The Underwriters shall determine the allocation of\nShares sold with in connection with the Company Reallocation and the Selling\nStockholder Reallocation.  Furthermore, if one or more of the Selling\nStockholders shall fail to sell and deliver to the Underwriters in the aggregate\nmore than Four Hundred Thousand (400,000) of the Shares then the Underwriters\nmay at their option, by written notice from the Representatives to the Company\nand the Selling Stockholders, terminate this Agreement without any liability on\nthe part of any Underwriter or, except as provided in Sections 6, 8 and 12(d)\nhereof, the Company or the Selling Stockholders.  If one or more of the Selling\nStockholders shall fail to sell and deliver to the Underwriters the Shares to be\nsold and delivered by such Selling Stockholders pursuant to this Agreement at\nthe Closing Date, then the Underwriters shall have the right, by written notice\nfrom the Representatives to the Company and the Selling Stockholders, to\npostpone the Closing Date, but in no event for longer than seven (7) days in\norder that the required changes, if any, to the Registration Statement and the\nProspectus or any other documents or arrangements may be effected.\n\n     16.  Governing Law.  This Agreement shall be governed by and construed in\n          -------------                                                       \naccordance with the laws of the State of New York, but without regard to\nprinciples of conflicts of law.\n\n                                       33\n\n\n \n     17.  Counterparts.  This Agreement may be executed in counterparts, each of\n          ------------                                                          \nwhich shall be an original and all of which together shall constitute one and\nthe same instrument.\n\n     18.  Headings.  The headings of the sections of this Agreement have been\n          --------                                                           \ninserted for convenience of reference only and shall not be deemed a part of\nthis Agreement.\n\n                                       34\n\n\n \n     If the foregoing correctly sets forth the understanding between you, the\nCompany and the Selling Stockholders, please so indicate in the space provided\nbelow for that purpose, whereupon this letter shall constitute a binding\nagreement among us.\n\n\nAccepted as of the date first above written.\n\n\n\nVery truly yours,\n\n\n\nTHEGLOBE.COM, INC.\n\n\nBy:  ______________________\nTitle:  Co-Chief Executive Officer\n\n\n\nSELLING STOCKHOLDERS LISTED ON SCHEDULE II\n\n\nBy:______________________\n   Attorney-in-Fact for the Selling\n   Stockholders listed on Schedule II hereto\n\n\n\nBEAR, STEARNS &amp; CO. INC.\nNATIONSBANC MONTGOMERY SECURITIES LLC\nVOLPE, BROWN, WHELAN &amp; COMPANY, LLC\nWIT CAPITAL CORPORATION\n  on behalf of themselves and the other\n  Underwriters named in Schedule I hereto.\n\n\nBear, Stearns &amp; Co. Inc.\n\n\nBy:  ______________________\nTitle:\n\n                                       35\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6846],"corporate_contracts_industries":[9415],"corporate_contracts_types":[9629,9634],"class_list":["post-43975","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-bank-of-america-corp","corporate_contracts_industries-financial__banks","corporate_contracts_types-securities","corporate_contracts_types-securities__underwriting"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43975","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43975"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43975"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43975"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43975"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}