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divine interVentures, inc.
Class A Common Stock
UNDERWRITING AGREEMENT
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[ ], 2000
FleetBoston Robertson Stephens, Inc.
Donaldson, Lufkin & Jenrette Securities Corporation
Bear Stearns & Co. Inc.
William Blair & Company, L.L.C.
DLJdirect Inc.
As Representatives of the Several Underwriters,
c/o FleetBoston Robertson Stephens, Inc.
555 California Street, Suite 2600
San Francisco, CA 94104
Dear Sirs:
1. Introductory. divine interVentures, inc., a Delaware corporation
("Company"), proposes to issue and sell shares to the Underwriters ("Firm
Securities") of its Class A common stock ("Securities") and also proposes to
issue and sell to the Underwriters, at the option of the Underwriters, an
aggregate of not more than additional shares ("Optional Securities") of its
Securities as set forth below. The Firm Securities and the Optional Securities
are herein collectively called the "Offered Securities." As part of the offering
contemplated by this Agreement, Donaldson, Lufkin & Jeanrette Corporation (the
"Designated Underwriter") has agreed to reserve out of the Firm Securities
purchased by it under this Agreement, up to shares, for sale to the Company's
employees, directors, vendors, service providers, customers and other persons
who have business or other relationships with the Company, officers and
directors of the Company, any Subsidiary (as defined in Section 2(d)(i)), any
Associated Company (as defined in Section 2(d)(ii)) or Cost Basis Investee (as
defined in Section 2(d)(ii)) (collectively, "Participants"), as set forth in the
Prospectus (as defined herein) under the heading "Underwriting" (the "Directed
Share Program"). The Firm Securities to be sold by the Designated Underwriter
pursuant to the Directed Share Program (the "Directed Shares") will be sold by
the Designated Underwriter pursuant to this Agreement at the public offering
price. Any Directed Shares not orally confirmed for purchase by a Participant by
the end of the business day on which this Agreement is executed will be offered
to the public by the Designated Underwriter as part of it allocation as set
forth in the Prospectus. The Company hereby agrees with the several Underwriters
named in Schedule A hereto ("Underwriters") as follows:
2. Representations and Warranties of the Company. The Company represents and
warrants to, and agrees with, the several Underwriters that:
(a) A registration statement (No. 333-92851), including a form of
prospectus, has been filed with the Securities and Exchange Commission
("Commission") and either (i) has been declared effective under the
Securities Act of 1933 ("Act") and is not proposed to be amended or (ii)
is proposed to be amended by amendment or post-effective amendment. If
such registration statement ("initial registration statement") has been
declared effective, either (i) an additional registration statement
("additional registration statement") relating to the Offered Securities
may have been filed with the Commission pursuant to Rule 462(b) ("Rule
462(b)") under the Act and, if so filed, has become effective upon filing
pursuant to such Rule, and the Offered Securities all have been duly
registered under the Act pursuant to
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the initial registration statement and, if applicable, the additional
registration statement or (ii) such an additional registration statement
is proposed to be filed with the Commission pursuant to Rule 462(b) and
will become effective upon filing pursuant to such Rule and, upon such
filing, the Offered Securities will all have been duly registered under
the Act pursuant to the initial registration statement and such
additional registration statement. If the Company does not propose to
amend the initial registration statement or if an additional registration
statement has been filed and the Company does not propose to amend it,
and if any post-effective amendment to either such registration statement
has been filed with the Commission prior to the execution and delivery of
this Agreement, the most recent amendment (if any) to each such
registration statement has been declared effective by the Commission or
has become effective upon filing pursuant to Rule 462(c) ("Rule 462(c)")
under the Act or, in the case of the additional registration statement,
Rule 462(b). For purposes of this Agreement, "Effective Time" with
respect to the initial registration statement or, if filed prior to the
execution and delivery of this Agreement, the additional registration
statement means (i) if the Company has advised the Representatives that
it does not propose to amend such registration statement, the date and
time as of which such registration statement, or the most recent post-
effective amendment thereto (if any) filed prior to the execution and
delivery of this Agreement, was declared effective by the Commission or
has become effective upon filing pursuant to Rule 462(c), or (ii) if the
Company has advised the Representatives that it proposes to file an
amendment or post-effective amendment to such registration statement, the
date and time as of which such registration statement, as amended by such
amendment or post-effective amendment, as the case may be, is declared
effective by the Commission. If an additional registration statement has
not been filed prior to the execution and delivery of this Agreement but
the Company has advised the Representatives that it proposes to file one,
"Effective Time" with respect to such additional registration statement
means the date and time as of which such registration statement is filed
and becomes effective pursuant to Rule 462(b). "Effective Date" with
respect to the initial registration statement or the additional
registration statement (if any) means the date of the Effective Time
thereof. The initial registration statement, as amended at its Effective
Time, including all information contained in the additional registration
statement (if any) and deemed to be a part of the initial registration
statement as of the Effective Time of the additional registration
statement pursuant to the General Instructions of the Form on which it is
filed and including all information (if any) deemed to be a part of the
initial registration statement as of its Effective Time pursuant to Rule
430A(b) ("Rule 430A(b)") under the Act, is hereinafter referred to as the
"Initial Registration Statement." The additional registration statement,
as amended at its Effective Time, including the contents of the initial
registration statement incorporated by reference therein and including
all information (if any) deemed to be a part of the additional
registration statement as of its Effective Time pursuant to Rule 430A(b),
is hereinafter referred to as the "Additional Registration Statement".
The Initial Registration Statement and the Additional Registration
Statement are herein referred to collectively as the "Registration
Statements" and individually as a "Registration Statement". The form of
prospectus relating to the Offered Securities, as first filed with the
Commission pursuant to and in accordance with Rule 424(b) ("Rule 424(b)")
under the Act or (if no such filing is required) as included in a
Registration Statement, is hereinafter referred to as the "Prospectus".
No document has been or will be prepared or distributed in reliance on
Rule 434 under the Act.
(b) If the Effective Time of the Initial Registration Statement is prior
to the execution and delivery of this Agreement: (i) on the Effective
Date of the Initial Registration Statement, the Initial Registration
Statement conformed in all material respects to the requirements of the
Act and the rules and regulations of the Commission ("Rules and
Regulations") and did not include any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) on the
Effective Date of the Additional Registration Statement (if any), each
Registration Statement conformed, or will conform, in all material
respects to the requirements of the Act and the Rules and Regulations and
did not include, or will not include, any untrue statement
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of a material fact and did not omit, or will not omit, to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading and (iii) on the date of this
Agreement, the Initial Registration Statement and, if the Effective Time
of the Additional Registration Statement is prior to the execution and
delivery of this Agreement, the Additional Registration Statement each
conforms, and at the time of filing of the Prospectus pursuant to Rule
424(b) or (if no such filing is required) at the Effective Date of the
Additional Registration Statement in which the Prospectus is included,
each Registration Statement and the Prospectus will conform, in all
material respects to the requirements of the Act and the Rules and
Regulations, and neither of such documents includes, or will include, any
untrue statement of a material fact or omits, or will omit, to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading. If the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of
this Agreement: on the Effective Date of the Initial Registration
Statement, the Initial Registration Statement and the Prospectus will
conform in all material respects to the requirements of the Act and the
Rules and Regulations, neither of such documents will include any untrue
statement of a material fact or will omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, and no Additional Registration Statement has been or will
be filed. The two preceding sentences do not apply to statements in, or
omissions from, a Registration Statement or the Prospectus based upon
written information furnished to the Company by any Underwriter through
the Representatives specifically for use therein, it being understood and
agreed that the only such information is that described as such in
Section 7(b) hereof.
(c) The Company has been duly incorporated and is an existing corporation
in good standing under the laws of the State of Delaware, with power and
authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus; and the Company is duly
qualified to do business as a foreign corporation in good standing in all
other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification (except where the
failure to be so qualified would not have a Material Adverse Effect (as
defined below)).
(d) (i) Each entity in which the Company owns, either directly or
indirectly, a majority of its issued equity securities and which is
scheduled hereto in Schedule B (each, a "Subsidiary") has been duly
incorporated and is an existing corporation in good standing under the
laws of the jurisdiction of its incorporation, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the Prospectus; and each Subsidiary of the Company is duly
qualified to do business as a foreign corporation in good standing in all
other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification (except where the
failure to be so qualified would not have a Material Adverse Effect (as
defined below)); all of the issued and outstanding capital stock of each
Subsidiary of the Company has been duly authorized and validly issued and
is fully paid and non-assessable; and the capital stock of each
Subsidiary owned by the Company, directly or through Subsidiaries, is
owned free from liens, encumbrances and defects; (ii) to the best of the
Company's knowledge after due enquiry, (A) each other entity in which the
Company and each private equity fund in which it holds an interest, in
each case either directly or indirectly, and which is scheduled hereto in
Schedule C (each, an "Associated Company") and each of Comerx, Inc.,
comScore, Inc., The National Transportation Exchange, Inc., Neoforma.com,
Inc. and Sequoia Software Corporation (together, the "Cost Basis
Investees") has been duly incorporated, is validly existing and is in
good standing under the laws of the jurisdiction of its incorporation,
or, in the case of any Associated Company which is organized as a limited
partnership or limited liability company, has been duly organized and is
an existing limited partnership or limited liability company in good
standing under the laws of the jurisdiction under which it is organized;
(B) to the best of the Company's knowledge after due enquiry, each
Associated Company has the power and authority (corporate and/or other,
as required) to own its properties and conduct its business as described
in the Prospectus; (C) the Company owns its interests in its Subsidiaries
and Associated Companies, in each case in the amounts
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and percentages disclosed in the Prospectus; (D) to the best of the
Company's knowledge after due enquiry, each Associated Company is duly
qualified to do business as a foreign corporation or, as the case may be,
limited partnership or limited liability company in good standing in all
other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification (except where the
failure to be so qualified would not have a Material Adverse Effect (as
defined below)); (E) to the best of the Company's knowledge after due
enquiry, all of the issued and outstanding capital stock held directly or
indirectly by the Company in each incorporated Associated Company has
been duly authorized and validly issued and is fully paid and non-
assessable; and the capital stock or limited partnership or limited
liability company interest of each Associated Company owned by the
Company, directly or indirectly, is owned free from liens, encumbrances
and defects in each instance where the absence of the foregoing would not
individually in the case of the Company and any Subsidiary, or in any
other case in the aggregate, have a material adverse effect on the
condition (financial or otherwise), business, properties or results of
operations of the Company, the Subsidiaries, the Associated Companies and
the Cost Basis Investees taken as a whole (a "Material Adverse Effect").
(e) The Offered Securities and all other outstanding shares of capital
stock of the Company have been duly authorized; all outstanding shares of
capital stock of the Company are, and, when the Offered Securities have
been delivered and paid for in accordance with this Agreement on each
Closing Date (as defined below), such Offered Securities will be, validly
issued, fully paid and non-assessable and will conform in all material
respects to the description thereof contained in the Prospectus; the
stockholders of the Company have no preemptive rights with respect to the
Offered Securities and the authorized issued and outstanding capital
stock of the Company as of March 31, 2000 was set forth in the Prospectus
in the column entitled "Actual" under the caption "Capitalization."
(f) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person that
would give rise to a valid claim against the Company or any Underwriter
for a brokerage commission, finder's fee or other like payment in
connection with the offering of the Offered Securities.
(g) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person granting
such person the right to require the Company to file a registration
statement under the Act with respect to any securities of the Company
owned or to be owned by such person or to require the Company to include
such securities in the securities registered pursuant to a Registration
Statement or in any securities being registered pursuant to any other
registration statement filed by the Company under the Act.
(h) The Offered Securities have been approved for listing on the Nasdaq
Stock Market's National Market, subject to official notice of issuance.
(i) No consent, approval, authorization, or order of, or filing with, any
governmental agency or body or any court is required to be obtained or
made by the Company for the consummation of the transactions contemplated
by this Agreement in connection with the issuance and sale of the Offered
Securities by the Company, except such as have been obtained and made
under the Act and the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and as may be required under applicable state securities
laws.
(j) The execution, delivery and performance of this Agreement, and the
issuance and sale of the Offered Securities, will not result in a breach
or violation of any of the terms and provisions of, or constitute a
default under, any statute, any rule, regulation or order of any
governmental agency or body or any court, domestic or foreign, having
jurisdiction over the Company any Subsidiary or any of their properties,
or any agreement or instrument to which the Company or any such
Subsidiary is a party or by which the Company or any such
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Subsidiary is bound or to which any of the properties of the Company or
any such Subsidiary is subject (except for such breaches, violations or
defaults that would not, individually or in the aggregate, be reasonably
expected to have a Material Adverse Effect) or the charter or by-laws of
the Company or any such Subsidiary, and the Company has full power and
authority to authorize, issue and sell the Offered Securities as
contemplated by this Agreement; and this Agreement has been duly
authorized, executed and delivered by the Company.
(k) The Company and its Subsidiaries have good and marketable title to
all real properties and all other properties and assets owned by them and
which are, either individually or in the aggregate, material to their
business, in each case free from liens, encumbrances and defects that
would materially affect the value thereof or materially interfere with
the use made or to be made thereof by them; and the Company and its
Subsidiaries hold any leased real or personal property which is, either
individually or in the aggregate, material to their business under valid
and enforceable leases with no exceptions that would materially interfere
with the use made or to be made thereof by them.
(l) The Company, its Subsidiaries and, to the best of the Company's
knowledge after due enquiry, the Associated Companies, each possess
adequate certificates, authorities or permits issued by appropriate
governmental agencies or bodies necessary to conduct the business now
operated by them and have not received any notice of proceedings relating
to the revocation or modification of any such certificate, authority or
permit that, if determined adversely to the Company, any Subsidiary or
any Associated Company, would be reasonably likely to have a Material
Adverse Effect.
(m) No labor dispute with the employees of the Company, any Subsidiary
or, to the best of the Company's knowledge after due enquiry, any
Associated Company or any of their respective principal suppliers,
manufacturers, customers or contractors exists or, to the knowledge of
the Company, is imminent, that might have a Material Adverse Effect.
(n) The Company, its Subsidiaries and, to the best of the Company's
knowledge after due enquiry, the Associated Companies each possess,
license or can acquire on reasonable terms, adequate trademarks, trade
names and other rights to inventions, know-how, patents, copyrights,
confidential information and other intellectual property (collectively,
"intellectual property rights") necessary to conduct the business now
operated by them, and none of them have received any notice of
infringement of or conflict with asserted rights of others with respect
to any intellectual property rights that, if determined adversely to the
Company, any Subsidiary or any Associated Company, would be reasonably
likely to, either individually or in the aggregate, have a Material
Adverse Effect.
(o) There are no pending actions, suits or enforcement proceedings
against or affecting the Company, any Subsidiary or, to the best of the
Company's knowledge after due enquiry, any Associated Company, or any of
their respective properties or, to the Company's knowledge, any of the
Company's executive officers or directors, that would be reasonably
likely to have a Material Adverse Effect, materially and adversely affect
the ability of the Company to perform its obligations under this
Agreement or otherwise materially and adversely affect the sale of the
Offered Securities hereunder; and, to the best of the Company's knowledge
after due enquiry, no such actions, suits, or enforcement proceedings are
threatened or contemplated.
(p) None of the Company, any Subsidiary nor, to the best of the Company's
knowledge after due enquiry, any Associated Company is in violation or
default of (i) any provision of its charter or by-laws, (ii) the terms of
any indenture, contract, lease, mortgage, deed of trust, note agreement,
loan agreement or other agreement, obligation, condition, covenant or
instrument to which it is a party or bound or to which its property is
subject; or (iii) any statute, law, rule, regulation, judgment, order or
decree of any court, regulatory body, administrative agency, governmental
body, arbitrator or other authority having jurisdiction
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over the Company, such Subsidiary or, to the best of the Company's
knowledge after due enquiry, any Associated Company or any of their
respective properties, as applicable, except any such violation or
default which would not, singly or in the aggregate, result in a Material
Adverse Effect.
(q) Save as described in the Prospectus, neither the Company, nor any of
its executive officers or, to the Company's knowledge, any of its
directors are a party to any agreement (i) the terms of which restrict
the ability of the Company to conduct its business as described in the
Prospectus or (ii) restrict any of its officers or its directors, to act
in such capacity on behalf of the Company; and the Company believes that
it and each Subsidiary, and it and each Associated Company, conduct
business between each other on terms substantially equivalent to those
that could be obtained on an arm's length basis.
(r) Neither the Company, any Subsidiary or, to the best of the Company's
knowledge after due enquiry, any Associated Company, is in violation of
any statute, rule, regulation, decision or order of any governmental
agency or body or any court, domestic or foreign, relating to the use,
disposal or release of hazardous or toxic substances or relating to the
protection or restoration of the environment or human exposure to
hazardous or toxic substances (collectively, "environmental laws"), owns
or operates any real property contaminated with any substance that is
subject to any environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to any
claim relating to any environmental laws, which violation, contamination,
liability or claim would be reasonably likely to, individually or in the
aggregate, have a Material Adverse Effect; and the Company is not aware
of any pending investigation which might lead to such a claim.
(s) Each of the Company, the Subsidiaries and, to the best of the
Company's knowledge after due enquiry, the Associated Companies, has
timely filed all necessary federal and state income and franchise tax
returns and has paid all taxes shown thereon as due, and there is no tax
deficiency that has been or, to the Company's knowledge, might be
asserted against the Company or any Subsidiary or Associated Company
other than in each instance such as would not have a Material Adverse
Effect. All tax liabilities are adequately provided for on the books of
the Company and its Subsidiaries and, to the Company's knowledge the
Associated Companies.
(t) There are no transfer taxes or other similar fees or charges under
Federal law or the laws of any state, or any political subdivision
thereof, required to be paid in connection with the execution and
delivery of this Agreement by the Company or the issuance and sale by the
Company of the Offered Securities.
(u) Each of the accountants who certified the financial statements and
supporting schedules included in the Prospectus are independent public
accountants as required by the Act and the Rules and Regulations.
(v) The financial statements included in each Registration Statement and
the Prospectus present fairly the financial position, results of
operations and cashflows for each of the Company, its consolidated
Subsidiaries and each of BeautyJungle.com, Inc., bid4real.com, inc.,
Bid4Real.com LLC, BidBuyBuild, Inc., closerlook, inc., eFiltration.com,
Inc., i-Fulfillment, Inc., iGive.com, inc., iSalvage.com, Inc., i-Street,
Inc., LiveOnTheNet.com, Inc., Martin Partners, L.L.C., Mercantec, Inc.,
mindwrap, inc., The Oilspot.com LLC, OpinionWare.com, Inc., Outtask.com,
Inc., Perceptual Robotics, Inc., PocketCard Inc. ViaChange.com, Inc., Web
Design Group, Inc., Westbound Consulting, Inc., Whiplash, Inc. and
Xippix, Inc. (the "Audited Associated Companies") and their respective
subsidiaries as of the dates shown and their results of operations and
cash flows for the periods shown, and such financial statements have been
prepared in conformity with generally accepted accounting principles in
the United States, applied on a consistent basis. In addition, the
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information contained in the Registration Statement and the Prospectus
presents fairly, in all material respects, the Company's equity ownership
and percentage of voting control in each Subsidiary, each Associated
Company and each Cost Basis Investee as at May 15, 2000. The assumptions
used in preparing the pro forma financial statements and the Prospectus
provide a reasonable basis for presenting the significant effects
directly attributable to the transactions or events described therein,
the related pro forma adjustments give appropriate effect to those
assumptions, and the pro forma columns therein reflect the proper
application. No other financial statements or supporting schedules other
than those included in the Registration Statement are required to be
included in the Registration Statement. The financial data set forth in
the Prospectus under the captions "Summary--Summary Selected Financial
Data", "Selected Financial Data" and "Capitalization" fairly present the
information set forth therein on a basis consistent with that of the
financial statements contained in the Registration Statement.
(w) Except as disclosed in the Prospectus, since the date of the latest
audited financial statements included in the Prospectus, there has been
no material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or
other), business, properties or results of operations of the Company, the
Subsidiaries and the Associated Companies, taken as a whole, and there
has been no dividend or distribution of any kind declared, paid or made
by the Company on any class of its capital stock.
(x) The Company is not, and is not currently required to be, registered
under Section 8 of the United States Investment Company Act of 1940, as
amended (the "Investment Company Act"), and at all times maintains
satisfactory controls and procedures to provide accurate data upon which
to evaluate its status with respect thereto; the Company currently
intends to use the proceeds of the offering as described in the
prospectus under "Use of Proceeds", and the Company is not and, after
giving effect to the offering and sale of the Offered Securities and the
application of the proceeds thereof as described in the Offering
Document, will not be an "investment company," as such term is defined in
the Investment Company Act.
(y) Neither the Company, nor any of its affiliates (as defined in Rule
501(b) of Regulation D under the Act) or any person acting on behalf of
any of them, has engaged in any form of general solicitation or general
advertising (within the meaning of Regulation D under the Act) in
connection with the offer and sale of the Company's Series C, D, E or F
Convertible Preferred Stock, or of the securities sold in the concurrent
private placements described in the Prospectus, and the offer and sale of
such securities has been conducted in a manner which will not lead to the
integration of such offering with the offering of the Securities to which
this Agreement relates.
(z) The Company represents and warrants to the Underwriters that (i) the
Registration Statement, the Prospectus and any preliminary prospectus
comply, and any further amendments or supplements thereto will comply,
with any applicable laws or regulations of foreign jurisdictions in which
the Prospectus or any preliminary prospectus, as amended or supplemented,
if applicable, are distributed in connection with the Directed Share
Program, and that (ii) no authorization, approval, consent, license,
order, registration or qualification of or with any government,
governmental instrumentality or court, other than such as have been
obtained, is necessary under the securities law and regulations of
foreign jurisdictions in which the Directed Shares are offered outside
the United States.
(aa) The Company has not offered, or caused the Underwriters to offer,
any offered Securities to any person pursuant to the Directed Share
Program with the specific intent to unlawfully influence (i) a customer
or supplier of the Company to alter the customer's or supplier's level or
type of business with the Company or (ii) a trade journalist or
publication to write or publish favorable information about the Company
or its products.
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(bb) Each of the Company, its Subsidiaries and, to the best of the
Company's knowledge after due enquiry, each Associated Company, are
insured by recognized, financially sound and reputable institutions with
policies in such amounts and with such deductibles and covering such
risks as are generally deemed adequate and customary for their businesses
including, but not limited to, policies covering real and personal
property owned or leased by the Company, its Subsidiaries and, to the
best of the Company's knowledge after due enquiry, the Associated
Companies are insured against theft, damage, destruction, acts of
vandalism and earthquakes, general liability and directors' and officers'
liability, except in any case as would not reasonably be expected to have
a Material Adverse Effect. The Company has no reason to believe that it,
any Subsidiary or any Associated Company will not be able (i) to renew
its existing insurance coverage as and when such policies expire or (ii)
to obtain comparable coverage from similar institutions as may be
necessary or appropriate to conduct its business as now conducted and at
a cost that would not result in a Material Adverse Effect. Neither of the
Company, any Subsidiary, nor to the best of the Company's knowledge after
due enquiry any Associated Company, has been denied any insurance
coverage which it has sought or for which it has applied, except in any
case as would not reasonably be expected to have a Material Adverse
Effect.
(cc) The Company has not taken and will not take, directly or indirectly,
any action designed to or that might be reasonably expected to cause or
result in stabilization or manipulation of the price of the Securities to
facilitate the sale or resale of the Offered Securities.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the
representations, warranties and agreements herein contained, and subject to the
terms and conditions herein set forth, the Company agrees to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to purchase
from the Company, at a purchase price of $____ per share, the respective
numbers of shares of Firm Securities set forth opposite the names of the
Underwriters in Schedule A hereto.
The Company will deliver the Firm Securities to the Representatives for the
accounts of the Underwriters, against payment of the purchase price in Federal
(same day) funds by wire transfer to an account at a money center bank
designated by the Company at the office of Katten Muchin Zavis, at 9:00 A.M.,
New York time, on , or at such other time not later than seven full business
days thereafter as FleetBoston Robertson Stephens ("Robertson Stephens") and the
Company determine, such time being herein referred to as the "First Closing
Date." For purposes of Rule 15c6-1 under the Securities Exchange Act of 1934,
the First Closing Date (if later than the otherwise applicable settlement date)
shall be the settlement date for payment of funds and delivery of securities for
all the Firm Securities sold pursuant to the offering. The certificates for
the Firm Securities so to be delivered will be in definitive form, in such
denominations and registered in such names as Robertson Stephens requests and
will be made available for checking and packaging at the office of Katten Muchin
Zavis, Chicago, at least 24 hours prior to the First Closing Date.
In addition, upon written notice from Robertson Stephens given to the Company
from time to time not more than 30 days subsequent to the date of the
Prospectus, the Underwriters may purchase all or less than all of the Optional
Securities at the purchase price per Security to be paid for the Firm
Securities. The Company agrees to sell to the Underwriters the number of shares
of Optional Securities specified in such notice and the Underwriters agree,
severally and not jointly, to purchase such Optional Securities. Such Optional
Securities shall be purchased for the account of each Underwriter in the same
proportion as the number of shares of Firm Securities set forth opposite such
Underwriter's name bears to the total number of shares of Firm Securities
(subject to adjustment by Robertson Stephens to eliminate fractions) and may be
purchased by the Underwriters only for the purpose of covering over-allotments
made in connection with the sale of the Firm Securities. No Optional Securities
shall be sold or delivered unless the Firm Securities previously have been, or
simultaneously are, sold and delivered. The right to purchase the Optional
Securities or any portion thereof may be exercised from time to time and to the
extent not previously exercised may be surrendered and terminated at any time
upon notice by Robertson Stephens to the Company.
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Each time for the delivery of and payment for the Optional Securities, being
herein referred to as an "Optional Closing Date", which may be the First Closing
Date (the First Closing Date and each Optional Closing Date, if any, being
sometimes referred to as a "Closing Date"), shall be determined by Robertson
Stephens but shall be not later than five full business days after written
notice of election to purchase Optional Securities is given.
The Company will deliver the Optional Securities being purchased on each
Optional Closing Date to the Representatives for the accounts of the several
Underwriters, against payment of the purchase price therefor in Federal (same
day) funds by wire transfer to an account at a money center bank designated by
the Company drawn to the order of ________, at the office of Katten Muchin
Zavis. The certificates for the Optional Securities being purchased on each
Optional Closing Date will be in definitive form, in such denominations and
registered in such names as Robertson Stephens requests upon reasonable notice
prior to such Optional Closing Date and will be made available for checking and
packaging at the office of at a reasonable time in advance of such Optional
Closing Date.
4. Offering by Underwriters. It is understood that the several Underwriters
propose to offer the Offered Securities for sale to the public as set forth in
the Prospectus.
5. Certain Agreements of the Company. The Company agrees with the several
Underwriters that:
(a) If the Effective Time of the Initial Registration Statement is prior
to the execution and delivery of this Agreement, the Company will file
the Prospectus with the Commission pursuant to and in accordance with
subparagraph (1) (or, if applicable and if consented to by Robertson
Stephens, subparagraph (4)) of Rule 424(b) not later than the earlier of
(A) the second business day following the execution and delivery of this
Agreement or (B) the fifteenth business day after the Effective Date of
the Initial Registration Statement. The Company will advise Robertson
Stephens promptly of any such filing pursuant to Rule 424(b). If the
Effective Time of the Initial Registration Statement is prior to the
execution and delivery of this Agreement and an Additional Registration
Statement is necessary to register a portion of the Offered Securities
under the Act but the Effective Time thereof has not occurred as of such
execution and delivery, the Company will file the Additional Registration
Statement or, if filed, will file a post-effective amendment thereto with
the Commission pursuant to and in accordance with Rule 462(b) on or prior
to 10:00 P.M., New York time, on the date of this Agreement or, if
earlier, on or prior to the time the Prospectus is printed and
distributed to any Underwriter, or will make such filing at such later
date as shall have been consented to by Robertson Stephens.
(b) The Company will advise Robertson Stephens promptly of any proposal
to amend or supplement the initial or any additional registration
statement as filed or the related prospectus or the Initial Registration
Statement, the Additional Registration Statement (if any) or the
Prospectus and will not effect such amendment or supplementation without
Robertson Stephens's consent; and the Company will also advise Robertson
Stephens promptly of the effectiveness of each Registration Statement (if
its Effective Time is subsequent to the execution and delivery of this
Agreement) and of any amendment or supplementation of a Registration
Statement or the Prospectus and of the institution by the Commission of
any stop order proceedings in respect of a Registration Statement and
will use its best efforts to prevent the issuance of any such stop order
and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered Securities
is required to be delivered under the Act in connection with sales by any
Underwriter or dealer, any event occurs as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary at any time
to amend the Prospectus to comply with the Act,
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the Company will promptly notify Robertson Stephens of such event and
will promptly prepare and file with the Commission, at its own expense,
an amendment or supplement which will correct such statement or omission
or an amendment which will effect such compliance. Neither Robertson
Stephens' consent to, nor the Underwriters' delivery of, any such
amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 6.
(d) As soon as practicable, but not later than the Availability Date (as
defined below), the Company will make generally available to its security
holders an earnings statement covering a period of at least 12 months
beginning after the Effective Date of the Initial Registration Statement
(or, if later, the Effective Date of the Additional Registration
Statement) which will satisfy the provisions of Section 11(a) of the Act.
For the purpose of the preceding sentence, "Availability Date" means the
45th day after the end of the fourth fiscal quarter following the fiscal
quarter that includes such Effective Date, except that, if such fourth
fiscal quarter is the last quarter of the Company's fiscal year,
"Availability Date" means the 90th day after the end of such fourth
fiscal quarter.
(e) The Company will furnish to the Representatives copies of each
Registration Statement (five (5) of which will be signed and will include
all exhibits), each related preliminary prospectus, and, so long as a
prospectus relating to the Offered Securities is required to be delivered
under the Act in connection with sales by any Underwriter or dealer, the
Prospectus and all amendments and supplements to such documents, in each
case in such quantities as Robertson Stephens requests. The Prospectus
shall be so furnished on or prior to 3:00 P.M., New York time, on the
business day following the later of the execution and delivery of this
Agreement or the Effective Time of the Initial Registration Statement.
All other documents shall be so furnished as soon as available. The
Company will pay the expenses of printing and distributing to the
Underwriters all such documents.
(f) During the period of five years hereafter, the Company will furnish,
at the end of each such fiscal year, a copy of its annual report to
stockholders for such year to the Representatives and, upon request, to
each of the other Underwriters at such time as such annual report is
mailed to the Company's stockholders; and the Company will furnish to the
Representatives (i) as soon as available, a copy of each report and any
definitive proxy statement of the Company filed with the Commission under
the Securities Exchange Act of 1934 or mailed to stockholders, and (ii)
from time to time, such other information concerning the Company as
Robertson Stephens may reasonably request.
(g) The Company will pay all expenses incident to the performance of its
obligations under this Agreement, for the filing fee incident to, and the
reasonable fees of counsel for the Underwriters in connection with the
review by the National Association of Securities Dealers, Inc. ("NASD")
of the Offered Securities, for any travel expenses of the Company's
officers and employees, and any other expenses of the Company, in
connection with attending or hosting meetings with prospective purchasers
of the Offered Securities and for expenses incurred in distributing
preliminary prospectuses and the Prospectus (including any amendments and
supplements thereto) to the Underwriters.
(h) For a period of 180 days after the date of the initial public
offering of the Offered Securities (the "Lock-Up Period"), the Company
will not offer, sell, contract to sell, pledge or otherwise dispose of,
directly or indirectly, or file with the Commission a registration
statement under the Act relating to, any additional shares of its
Securities or securities convertible into or exchangeable or exercisable
for any shares of its Securities, or publicly disclose the intention to
make any such offer, sale, pledge, disposition or filing, without the
prior written consent of Robertson Stephens provided that the Company may
(i) issue shares in the concurrent private placements described in the
Prospectus; (ii) issue shares of class A common stock upon the conversion
of shares of its class B common stock outstanding on the date hereof;
(iii) issue shares of class A common stock and grant options for the
purchase of
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shares of class A common stock pursuant to its stock incentive plan and
employee stock purchase plan in effect of the date hereof; (iv) issue
shares upon the exercise of employee stock options outstanding on the
date hereof; (v) issue shares in connection with acquisitions and
strategic transactions, provided that the parties receiving shares in
such acquisitions and strategic transactions agree to be bound by the
restrictions described above for the remainder of the Lock-Up Period, and
(vi) file registration statements on form S-8 with the Commission
registering up to 15,000,000 shares of class A common stock issued or
issuable under its stock incentive plan and employee stock purchase plan
in effect on the date hereof.
(i) In connection with the Directed Share Program, the Company will
ensure that the Directed Shares will be restricted to the extent required
by the NASD or the NASD rules from sale, transfer, assignment, pledge or
hypothecation for a period of three months following the date of the
effectiveness of the Registration Statement. The Designated Underwriter
will notify the Company as to which Associated Companies will need to be
so restricted. The Company will direct the transfer agent to place stop
transfer restrictions upon such securities for such period of time.
(j) The Company will pay all fees and disbursements of counsel incurred
by the Underwriters in connection with the Directed Share Program and
stamp duties, similar taxes or duties or other taxes, if any, incurred by
the underwriters in connection with the Directed Share Program.
Furthermore, the Company covenants with the Underwriters that the Company
will comply with all applicable securities and other applicable laws,
rules and regulations in each foreign jurisdiction in which the Directed
Shares are offered in connection with the Directed Share Program.
(k) The Company agrees that, for a period of 180 days after the date of
the initial public offering of the Offered Securities, it will not
release any holder of any class of its common or preferred stock from any
contractual lock-up or similar arrangement with the Company in effect as
of the date hereof, including those contained in any restricted stock
agreement or purchase agreement relating to their purchase and sale,
without the prior written consent of Robertson Stephens.
6. Conditions of the Obligations of the Underwriters. The obligations of the
several Underwriters to purchase and pay for the Firm Securities on the First
Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company herein, to the accuracy of the statements
of Company officers made pursuant to the provisions hereof, to the performance
by the Company of its obligations hereunder and to the following additional
conditions precedent:
(a) The Representatives shall have received a letter, dated the date of
delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if the
Effective Time of the Initial Registration Statement is subsequent to the
execution and delivery of this Agreement, shall be prior to the filing of
the amendment or post-effective amendment to the registration statement
to be filed shortly prior to such Effective Time), of KPMG, LLP
confirming that they are independent public accountants within the
meaning of the Act and the applicable published Rules and Regulations and
stating to the effect that:
(i) in their opinion the financial statements and schedules examined by
them and included in the Registration Statements comply as to form in all
material respects with the applicable accounting requirements of the Act
and the related published Rules and Regulations;
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<PAGE>
(ii) they have performed the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in Statement of Auditing Standards No.
71, Interim Financial Information, on any unaudited financial statements
of the Company and each Audited Associated Company included in the
Registration Statements;
(iii) on the basis of the review referred to in clause (ii) above, a
reading of the latest available interim financial statements of the
Company, inquiries of officials of the Company who have responsibility
for financial and accounting matters and other specified procedures,
nothing came to their attention that caused them to believe that:
(I) the unaudited financial statements included in the
Registration Statements do not comply as to form in all material
respects with the applicable accounting requirements of the Act
and the related published Rules and Regulations or any material
modifications should be made to such unaudited financial
statements for them to be in conformity with generally accepted
accounting principles;
(II) at the date of the latest available balance sheet read by
such accountants, or at a subsequent specified date not more than
three business days prior to the date of such letter, there was
any change in the capital stock or any increase in short-term
indebtedness or long-term debt of the Company and its
consolidated Subsidiaries or, at the date of the latest available
balance sheet read by such accountants, there was any decrease in
consolidated net current assets or net assets, as compared with
amounts shown on the latest balance sheet included in the
Prospectus; or
(III) for the period from the closing date of the latest
consolidated statement of operations of the Company included in
the Prospectus to the closing date of the latest available
consolidated statement of operations of the Company read by such
accountants there were, as compared with the period of
corresponding length ended the date of the latest consolidated
statement of operations included in the Prospectus, any decreases
in revenues or increases in the total or per share amounts of net
loss of the Company
except in all cases set forth in clauses (II) and (III) above for
changes, increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
(iv) they have compared specified dollar amounts (or percentages derived
from such dollar amounts) and other numerical information contained in
the Registration Statements (in each case to the extent that such dollar
amounts, percentages and other numerical information are derived from (i)
the general accounting records of the Company or any Associated Company
(including any Audited Associated Company) or Subsidiary for which KPMG
LLP either currently acts as auditor, or has so acted for the period in
which such records were maintained, or (ii) are derived directly from
such records by analysis or computation, with the results obtained from
inquiries, a reading of such general accounting records and other
procedures specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with such
results, except as otherwise specified in such letter.
For purposes of this section, (i) if the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of this
Agreement, "Registration Statements" shall mean the initial registration
statement as proposed to be amended by the amendment or post-effective amendment
to be filed shortly prior to its Effective Time, (ii) if the Effective Time of
the Initial Registration Statement is prior to the execution and delivery of
this Agreement but the Effective Time of the Additional Registration is
subsequent to such execution and delivery,
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<PAGE>
"Registration Statements" shall mean the Initial Registration Statement and the
additional registration statement as proposed to be filed or as proposed to be
amended by the post-effective amendment to be filed shortly prior to its
Effective Time, and (iii) "Prospectus" shall mean the prospectus included in the
Registration Statements.
(b) The Representatives shall have received letters, dated the date of
delivery thereof (which, if the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, shall
be on or prior to the date of this Agreement or, if the Effective Time of
the Initial Registration Statement is subsequent to the execution and
delivery of this Agreement, shall be prior to the filing of the amendment
or post-effective amendment to the registration statement to be filed
shortly prior to such Effective Time), of KPMG, LLP confirming, in each
instance, that they are independent public accountants to each of each of
BeautyJungle.com, Inc., bid4real.com, inc., Bid4Real.com LLC, closerlook,
inc., eFiltration.com, Inc., iGive.com, inc., iSalvage.com, Inc., i-Street,
Inc., Martin Partners, L.L.C., Mercantec, Inc., mindwrap, inc., The
Oilspot.com LLC, OpinionWare.com, Inc., Outtask.com, Inc., Perceptual
Robotics, Inc., PocketCard Inc., ViaChange.com, Inc., Web Design Group,
Inc., Westbound Consulting, Inc., Whiplash, Inc. and Xippix, Inc. within
the meaning of the Act and the applicable published Rules and Regulations
and stating to the effect that, in their opinion, the financial statements
and schedules of each of BeautyJungle.com, Inc., bid4real.com, inc.,
Bid4Real.com LLC, closerlook, inc., eFiltration.com, Inc., iGive.com, inc.,
iSalvage.com, Inc., i-Street, Inc., Martin Partners, L.L.C., Mercantec,
Inc., mindwrap, inc., The Oilspot.com LLC, OpinionWare.com, Inc.,
Outtask.com, Inc., Perceptual Robotics, Inc., PocketCard Inc.
ViaChange.com, Inc., Web Design Group, Inc., Westbound Consulting, Inc.,
Whiplash, Inc. and Xippix, Inc. examined by them and included in the
Registration Statements comply as to form in all material respects with the
applicable accounting requirements of the Act and the related published
Rules and Regulations.
(c) The Representatives shall have received a letter, dated the date of
delivery thereto (which, if the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, shall
be on or prior to the date of this Agreement or, if the Effective Time of
the Initial Registration Statement is subsequent to the execution and
delivery of this Agreement, shall be prior to the filing of the amendment
or post-effective amendment to the registration statement to be filed
shortly prior to such Effective Time), of Arthur Andersen LLP (Boston)
confirming that they are independent public accountants to
LiveOnTheNet.com, Inc. within the meaning of the Act and the applicable
published Rules and Regulations and stating to the effect that, in their
opinion, the financial statements and schedules of LiveOnTheNet.com, Inc.
examined by them and included in the Registration Statements comply as to
form in all material respects with the applicable accounting requirements
of the Act and the related published Rules and Regulations.
(d) The Representatives shall have received a letter, dated the date of
delivery thereto (which, if the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, shall
be on or prior to the date of this Agreement or, if the Effective Time of
the Initial Registration Statement is subsequent to the execution and
delivery of this Agreement, shall be prior to the filing of the amendment
or post-effective amendment to the registration statement to be filed
shortly prior to such Effective Time), of Arthur Andersen LLP (Chicago)
confirming that they are independent public accountants to
i-Fullfillment.com, Inc. within the meaning of the Act and the applicable
published Rules and Regulations and stating to the effect that, in their
opinion, the financial statements and schedules of i-Fullfillment.com, Inc.
examined by them and included in the Registration Statements comply as to
form in all material respects with the applicable accounting requirements
of the Act and the related published Rules and Regulations.
(e) The Representatives shall have received a letter, dated the date of
delivery thereto (which, if the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, shall
be on or prior to the date of this Agreement or, if the Effective Time of
the Initial Registration Statement is subsequent to the execution and
delivery of this
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<PAGE>
Agreement, shall be prior to the filing of the amendment or post-effective
amendment to the registration statement to be filed shortly prior to such
Effective Time), of Grant Thornton LLP confirming that they are independent
public accountants to BidBuyBuild, Inc. within the meaning of the Act and
the applicable published Rules and Regulations and stating to the effect
that, in their opinion, the financial statements and schedules of
BidBuyBuild, Inc. examined by them and included in the Registration
Statements comply as to form in all material respects with the applicable
accounting requirements of the Act and the related published Rules and
Regulations.
(f) If the Effective Time of the Initial Registration Statement is not
prior to the execution and delivery of this Agreement, such Effective Time
shall have occurred not later than 10:00 P.M., New York time, on the date
of this Agreement or such later date as shall have been consented to by
Robertson Stephens. If the Effective Time of the Additional Registration
Statement (if any) is not prior to the execution and delivery of this
Agreement, such Effective Time shall have occurred not later than 10:00
P.M., New York time, on the date of this Agreement or, if earlier, the time
the Prospectus is printed and distributed to any Underwriter, or shall have
occurred at such later date as shall have been consented to by Robertson
Stephens. If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement, the Prospectus shall
have been filed with the Commission in accordance with the Rules and
Regulations and Section 5(a) of this Agreement. Prior to such Closing Date,
no stop order suspending the effectiveness of a Registration Statement
shall have been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Company or the Representatives,
shall be contemplated by the Commission.
(g) Subsequent to the execution and delivery of this Agreement, there shall
not have occurred (i) any change, or any development or event involving a
prospective change, in the condition (financial or other), business,
properties or results of operations of the Company and its Subsidiaries
taken as one enterprise which, in the judgment of a majority-in-interest of
the Underwriters (including the Representatives), is material and adverse
and makes it impractical or inadvisable to proceed with completion of the
public offering or the sale of and payment for the Offered Securities; (ii)
any material suspension or material limitation of trading in securities
generally on the New York Stock Exchange, or any setting of minimum prices
for trading on such exchange, or any suspension of trading of any
securities of the Company on any exchange or in the over-the-counter
market; (iii) any banking moratorium declared by U.S. Federal or New York
authorities; or (iv) any outbreak or escalation of major hostilities in
which the United States is involved, any declaration of war by Congress or
any other substantial national or international calamity or emergency if,
in the judgment of a majority in interest of the Underwriters including the
Representatives, the effect of any such outbreak, escalation, declaration,
calamity or emergency makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of, and payment for, the
Offered Securities.
(h) The Representatives shall have received an opinion, dated such Closing
Date, of Katten Muchin Zavis, counsel for the Company, to the effect that:
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
and each Subsidiary incorporated in either the state of Illinois,
California or New York has been duly incorporated and is an existing
corporation in good standing under the laws of the state of its
formation, with corporate power and authority to own its properties
and conduct its business as described in the Prospectus; and the
Company and each Subsidiary is duly qualified to do business as a
foreign corporation in good standing in the jurisdictions named in a
schedule attached to such opinion;
(ii) The Offered Securities delivered on such Closing Date and all
other outstanding shares of the Common Stock of the Company have been
duly authorized and validly issued, are fully paid and non-assessable
and conform in all material respects to the description thereof
contained in the Prospectus; and the stockholders of the Company
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<PAGE>
have no preemptive rights with respect to the Securities under the
Delaware General Corporation Law, the Third Amended and Restated
Certificate of Incorporation of the Company or, to such counsel's
knowledge, any other agreement to which the Company is a party;
(iii) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings known to such counsel between the Company
and any person granting such person the right to require the Company
to file a registration statement under the Act with respect to any
securities of the Company owned or to be owned by such person or to
require the Company to include such securities in the Securities
registered pursuant to the Registration Statement or in any securities
being registered pursuant to any other registration statement filed by
the Company under the Act;
(iv) No consent, approval, authorization or order of, or filing with,
any governmental agency or body or any court is required to be
obtained or made by the Company for the consummation of the
transactions contemplated by this Agreement in connection with the
issuance or sale of the Offered Securities by the Company, except such
as have been obtained and made under the Act and the Exchange Act;
(v) The Company's execution, delivery and performance of this
Agreement and issuance and sale of the Offered Securities will not, to
the knowledge of such counsel, after due enquiry, result in a breach
or violation of any of the terms and provisions of, or constitute a
default under any statute, any rule, regulation generally applicable
to transactions of the type contemplated by this Agreement (other than
state securities or Blue Sky laws, rules or regulations and federal
securities laws, rules or regulations concerning matters relating to,
or the adequacy or, disclosure in the Registration Statement or
Prospectus, as to which we express no opinion in this paragraph (vi));
or order of any governmental agency or body or any court having
jurisdiction over the Company or any Subsidiary of the Company or any
of their properties, or any agreement or instrument to which the
Company or any such Subsidiary is a party or by which the Company or
any such Subsidiary is bound or to which any of the properties of the
Company or any such Subsidiary is subject and which is listed on a
schedule to such opinion, or the charter or by-laws of the Company or
any such Subsidiary, and the Company has corporate power and authority
to authorize, issue and sell the Offered Securities as contemplated by
this Agreement;
(vi) The Initial Registration Statement was declared effective under
the Act as of the date and time specified in such opinion, the
Additional Registration Statement (if any) was filed and became
effective under the Act as of the date and time (if determinable)
specified in such opinion, the Prospectus either was filed with the
Commission pursuant to the subparagraph of Rule 424(b) specified in
such opinion on the date specified therein or was included in the
Initial Registration Statement or the Additional Registration
Statement (as the case may be), and, to the knowledge of such counsel,
no stop order suspending the effectiveness of a Registration Statement
or any part thereof has been issued and no proceedings for that
purpose have been instituted or are pending or contemplated under the
Act, and each Registration Statement and the Prospectus, and each
amendment or supplement thereto, as of their respective effective or
issue dates, complied as to form in all material respects with the
requirements of the Act and the Rules and Regulations; and
(vii) This Agreement has been duly authorized, executed and delivered
by the Company.
(i) The Representatives shall have received an opinion, dated such Closing
Date, of Katten Muchin Zavis, counsel for the Company, to the effect that
the offerings and sales of securities of the Company prior to the date of
this Agreement were exempt from registration under the Securities Act.
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<PAGE>
(j) The Representatives shall have received a letter, dated such Closing
Date, from Katten Muchin Zavis, counsel for the Company, stating that no
facts have come to such counsel's attention which cause it to believe that
a Registration Statement, as amended by any amendment thereto, as of its
effective date contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus, as
amended or supplemented by any amendment or supplement thereto, as of its
issue date or as of such Closing Date, contained any untrue statement of a
material fact or omitted to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading; the descriptions in the Registration
Statements and Prospectus of statutes, legal and governmental proceedings
and contracts and other documents are accurate in all material respects and
fairly present the information required by the Act to be shown in Form S-1;
and such counsel does not know of any legal or governmental proceedings
required to be described in a Registration Statement or the Prospectus
which are not described as required by Form S-1 or of any contracts or
documents of a character required by the Act to be described in a
Registration Statement or the Prospectus or to be filed as exhibits to a
Registration Statement which are not described and filed as required; it
being understood that such counsel need express no view as to the financial
statements and the notes thererto, financial statement schedules or other
financial data contained in the Registration Statements or the Prospectus.
(k) The Representatives shall have received an opinion, dated such Closing
Date, of Kirpatrick & Lockhart LLP, special counsel for the Company, to the
effect that the Company is not and, after giving effect to the offering and
sale of the Offered Securities and the application of the proceeds thereof
as described in the Prospectus, will not be an "investment company" as
defined in the Investment Company Act of 1940.
(l) The Representatives shall have received from Shearman & Sterling,
counsel for the Underwriters, such opinion or opinions, dated such Closing
Date, with respect to the incorporation of the Company, the validity of the
Offered Securities delivered on such Closing Date, the Registration
Statements, the Prospectus and other related matters as the Representatives
may require, and the Company shall have furnished to such counsel such
documents as they reasonably request for the purpose of enabling them to
pass upon such matters.
(m) The Representatives shall have received a certificate, dated such
Closing Date, of the Chief Executive Officer, President or any Vice
President and a principal financial or accounting officer of the Company in
which such officers, to the best of their knowledge after reasonable
investigation, shall state on behalf of the Company that: the
representations and warranties of the Company in this Agreement are true
and correct; the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior
to such Closing Date; no stop order suspending the effectiveness of any
Registration Statement has been issued and no proceedings for that purpose
have been instituted or, are contemplated by the Commission; the Additional
Registration Statement (if any) satisfying the requirements of
subparagraphs (1) and (3) of Rule 462(b) was filed pursuant to Rule 462(b),
including payment of the applicable filing fee in accordance with Rule III
(a) or (b) under the Act, prior to the time the Prospectus was printed and
distributed to any Underwriter; and, subsequent to the date of the most
recent financial statements in the Prospectus, there has been no material
adverse change, nor any development or event involving a prospective
material adverse change, in the condition (financial or other), business,
properties or results of operations of the Company, the Subsidiaries and
the Associated Companies taken as a whole, except as set forth in or
contemplated by the Prospectus or as described in such certificate.
(n) The Representatives shall have received a letter, dated such Closing
Date, of KPMG, LLP which meets the requirements of subsection (a) of this
Section, except that the specified date referred to in such subsection will
be a date not more than three days prior to such Closing Date for the
purposes of this subsection.
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(o) The Representatives shall have received letters, each dated such
Closing Date, of KPMG, LLP which meets the requirements of subsection (b)
of this Section, except that the specified date referred to in such
subsection will be a date not more than three days prior to such Closing
Date for the purposes of this subsection.
(p) The Representatives shall have received a letter, dated such Closing
Date, of Arthur Andersen LLP (Boston) which meets the requirements of
subsection (c) of this Section, except that the specified date referred to
in such subsection will be a date not more than three days prior to such
Closing Date for the purposes of this subsection.
(q) The Representatives shall have received a letter, dated such Closing
Date, of Arthur Andersen LLP (Chicago) which meets the requirements of
subsection (d) of this Section, except that the specified date referred to
in such subsection will be a date not more than three days prior to such
Closing Date for the purposes of this subsection.
(r) The Representatives shall have received a letter, dated such Closing
Date, of Grant Thornton LLP which meets the requirements of subsection (e)
of this Section, except that the specified date referred to in such
subsection will be a date not more than three days prior to such Closing
Date for the purposes of this subsection.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as the Representatives reasonably
request. Robertson Stephens may in its sole discretion waive, on behalf of the
Underwriters, compliance with any conditions to the obligations of the
Underwriters hereunder, whether in respect of an Optional Closing Date or
otherwise.
7. Indemnification and Contribution
(a) Indemnification of the Underwriters. The Company agrees to indemnify
and hold harmless each Underwriter, its officers and employees, and each person,
if any, who controls any Underwriter within the meaning of the Act and the
Exchange Act against any loss, claim, damage, liability or expense, as incurred,
to which such Underwriter or such controlling person may become subject, under
the Act, the Exchange Act or other federal or state statutory law or regulation,
or at common law or otherwise (including in settlement of any litigation, if
such settlement is effected with the written consent of the Company, which
consent shall not be unreasonably withheld), insofar as such loss, claim,
damage, liability or expense (or actions in respect thereof as contemplated
below) arises out of or is based (i) upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, or any
amendment thereto, including any information deemed to be a part thereof
pursuant to Rule 430A under the Act, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to make
the statements therein not misleading; or (ii) upon any untrue statement or
alleged untrue statement of a material fact contained in any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; or (iii) in whole or in part upon any inaccuracy in
the representations and warranties of the Company contained herein; or (iv) in
whole or in part upon any failure of the Company to perform its obligations
hereunder or under law; or (v) any untrue statement or alleged untrue statement
of any material fact contained in any audio or visual materials provided by the
Company or based upon written information furnished by or on behalf of the
Company including, without limitation, slides, videos, films or tape recordings,
used in connection with the marketing of the Offered Securities or (vi) any act
or failure to act or any alleged act or failure to act by any Underwriter in
connection with, or relating in any manner to, the Offered Securities or the
offering contemplated hereby, and which is included as part of or referred to in
any loss, claim, damage, liability or action arising out of or based upon any
matter covered by clause (i), (ii), (iii), (iv) or (v) above, provided that the
Company shall not be liable under this clause (vi) to the extent that a court of
competent jurisdiction shall have determined by a final judgment that such loss,
claim, damage, liability or action resulted directly from any such acts or
failures to act undertaken or omitted to be taken by such Underwriter through
its bad faith or willful misconduct and provided, further, that with
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<PAGE>
respect to any preliminary prospectus, the indemnity under Section 7(a)(ii)
shall not inure to the benefit of any Underwriter from whom the person asserting
any loss, claim, damage, liability or expense purchased Shares, or any person
controlling such Underwriter, if copies of the Prospectus were timely delivered
to the Underwriter pursuant to Section 2 and a copy of the Prospectus (as then
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such Underwriter
to such person, if required by law so to have been delivered and if the
Prospectus (as so amended or supplemented) would have cured the defect giving
rise to such loss, claim, damage, liability or expense. The Company agrees to
reimburse each Underwriter and each such controlling person for any and all
expenses (including the fees and disbursements of counsel chosen by Robertson
Stephens) as such expenses are reasonably incurred by such Underwriter or such
controlling person in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or
action; provided, however, that the foregoing indemnity agreement shall not
apply to any loss, claim, damage, liability or expense to the extent, but only
to the extent, arising out of or based upon any untrue statement or alleged
untrue statement or omission or alleged omission made in reliance upon and in
conformity with written information furnished to the Company by the
Representatives expressly for use in the Registration Statement, any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto). The
indemnity agreement set forth in this Section 7(a) shall be in addition to any
liabilities that the Company may otherwise have.
(b) Indemnification of the Company and its Directors and Officers. Each
Underwriter agrees, severally and not jointly, to indemnify and hold harmless
the Company, each of its directors, each of its officers who signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of the Act or the Exchange Act, against any loss, claim, damage,
liability or expense, as incurred, to which the Company, or any such director,
officer or controlling person may become subject, under the Act, the Exchange
Act, or other federal or state statutory law or regulation, or at common law or
otherwise (including in settlement of any litigation, if such settlement is
effected with the written consent of such Underwriter), insofar as such loss,
claim, damage, liability or expense (or actions in respect thereof as
contemplated below) arises out of or is based upon any untrue or alleged untrue
statement of a material fact contained in the Registration Statement, any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto), or arises out of or is based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in the Registration Statement, any preliminary
prospectus, or the Prospectus (or any amendment or supplement thereto), in
reliance upon and in conformity with written information furnished to the
Company by the Representatives expressly for use therein; and to reimburse the
Company, or any such director, officer or controlling person for any legal and
other expense reasonably incurred by the Company, or any such director, officer
or controlling person in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or
action. The indemnity agreement set forth in this Section 7(b) shall be in
addition to any liabilities that each Underwriter may otherwise have.
(c) Information Provided by the Underwriters. The Company and each person,
if any, who controls the Company within the meaning of the Act or the Exchange
Act, hereby acknowledges that the only information that the Underwriters have
furnished to the Company expressly for use in the Registration Statement, any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) are the statements set forth in the paragraphs relating to
discretionary sales, concessions and re-allowances, and the information
appearing under the subheadings "Purchase of Our Common Stock by Affiliates of
Underwriters," "Electronic Prospectus Distribution" and "Stabilization" under
the caption "Underwriting".
(d) Notifications and Other Indemnification Procedures. Promptly after
receipt by an indemnified party under this Section 7 of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party under this Section 7, notify
the indemnifying party in writing of the commencement thereof, but the omission
so to notify the indemnifying party will not relieve it from any liability which
it may have to any indemnified party for contribution or otherwise under the
indemnity agreement contained in this Section 7 or to the extent it is not
prejudiced as a proximate result of such failure. In case any such action is
brought against any
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<PAGE>
indemnified party and such indemnified party seeks or intends to seek indemnity
from an indemnifying party, the indemnifying party will be entitled to
participate in, and, to the extent that it shall elect, jointly with all other
indemnifying parties similarly notified, by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party; provided, however, if the defendants in
any such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that a conflict may
arise between the positions of the indemnifying party and the indemnified party
in conducting the defense of any such action or that there may be legal defenses
available to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, the indemnified party
or parties shall have the right to select separate counsel to assume such legal
defenses and to otherwise participate in the defense of such action on behalf of
such indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of such indemnifying party's election so to
assume the defense of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such indemnified party
under this Section 7 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (together with local counsel), approved by the indemnifying
party (Robertson Stephens in the case of Section 7(b) and Section 8),
representing the indemnified parties who are parties to such action), (ii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action, or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense of
the indemnifying party, in each of which cases the fees and expenses of counsel
shall be at the expense of the indemnifying party.
(e) Settlements. The indemnifying party under this Section 7 shall not be
liable for any settlement of any proceeding effected without its written
consent, which consent shall not be unreasonably withheld, but if settled with
such consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party against any loss, claim, damage,
liability or expense by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel as contemplated by Section 7(d) hereof, the indemnifying party agrees
that it shall be liable for any settlement of any proceeding effected without
its written consent if (i) such settlement is entered into more than 60 days
after receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement, compromise or consent to the entry of judgment in any pending or
threatened action, suit or proceeding in respect of which any indemnified party
is or could have been a party and indemnity was or could have been sought
hereunder by such indemnified party, unless such settlement, compromise or
consent includes (i) an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such action, suit or
proceeding and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.
(f) Contribution. If the indemnification provided for in this Section 7 is
unavailable to or insufficient to hold harmless an indemnified party under
Section 7(a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) then each
indemnifying party shall contribute to the aggregate amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect the
relative benefits received by such party on the one hand and the Underwriters on
the other from the offering of the Shares. If, however, the allocation provided
by the immediately preceding sentence is not permitted by applicable law then
each indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of such party on the one hand and
the Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities, (or actions or
proceedings in respect thereof), as well as any other relevant equitable
considerations. The relative fault shall be determined by reference to, among
other things, whether the
19
<PAGE>
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
on the one hand or the Underwriters on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 7(f) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7(f). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) referred
to above in this Section 7(f) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (f), (i) no Underwriter shall be required to
contribute any amount in excess of the underwriting discounts and commissions
applicable to the Shares purchased by such Underwriter and (ii) no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this Section
7(f) to contribute are several in proportion to their respective underwriting
obligations and not joint.
(g) Timing of Any Payments of Indemnification. Any losses, claims,
damages, liabilities or expenses for which an indemnified party is entitled to
indemnification or contribution under this Section 7 shall be paid by the
indemnifying party to the indemnified party as such losses, claims, damages,
liabilities or expenses are incurred, but in all cases, no later than forty-five
(45) days of invoice to the indemnifying party.
(h) Survival. The indemnity and contribution agreements contained in this
Section 7 and the representation and warranties set forth in this Agreement
shall remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter, the Company, its directors or officers or any persons
controlling the Company, (ii) acceptance of any Shares and payment therefor
hereunder, and (iii) any termination of this Agreement. A successor to any
Underwriter, or to the Company, its directors or officers, or any person
controlling the Company, shall be entitled to the benefits of the indemnity,
contribution and reimbursement agreements contained in this Section 7.
(i) Acknowledgements of Parties. The parties to this Agreement hereby
acknowledge that they are sophisticated business persons who were represented by
counsel during the negotiations regarding the provisions hereof including,
without limitation, the provisions of this Section 7, and are fully informed
regarding said provisions. They further acknowledge that the provisions of this
Section 7 fairly allocate the risks in light of the ability of the parties to
investigate the Company and its business in order to assure that adequate
disclosure is made in the Registration Statement and Prospectus as required by
the Act and the Exchange Act.
(j) Indemnification for Directed Share Program. The Company agrees to
indemnify and hold harmless the Designated Underwriter and its affiliates and
each person, if any, who controls the Designated Underwriter or its affiliates
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act (the "Designated Underwriter Entities"), from and against any
and all losses, claims, damages and liabilities (including, without limitation,
any legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) (i) caused by any untrue statement or
alleged untrue statement of a material fact contained in any material prepared
by or with the consent of the Company for distribution to Participants in
connection with the Directed Share Program, or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; (ii) the failure of
any Participant to pay for and accept delivery of Directed Shares that the
participant has agreed to purchase; or (iii) related to, arising out of, or in
connection with the Directed Share Program other than losses, claims, damages or
liabilities (or
20
<PAGE>
expenses relating thereto) that are finally judicially determined to have
resulted from the bad faith of Designated Underwriter Entities.
8. Default of Underwriters. If any Underwriter or Underwriters default in
their obligations to purchase Offered Securities hereunder on either the First
Closing Date or any Optional Closing Date and the number of shares of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of shares of Offered Securities
that the Underwriters are obligated to purchase on such Closing Date, Robertson
Stephens may make arrangements satisfactory to the Company for the purchase of
such Offered Securities by other persons, including any of the Underwriters, but
if no such arrangements are made by such Closing Date, the non-defaulting
Underwriters shall be obligated severally, in proportion to their respective
commitments hereunder, to purchase the Offered Securities that such defaulting
Underwriters agreed but failed to purchase on such Closing Date. If any
Underwriter or Underwriters so default and the aggregate number of shares of
Offered Securities with respect to which such default or defaults occur exceeds
10% of the total number of shares of Offered Securities that the Underwriters
are obligated to purchase on such Closing Date and arrangements satisfactory to
Robertson Stephens and the Company for the purchase of such Offered Securities
by other persons are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting Underwriter
or the Company, except as provided in Section 9 (provided that if such default
occurs with respect to Optional Securities after the First Closing Date, this
Agreement will not terminate as to the Firm Securities or any Optional
Securities purchased prior to such termination). As used in this Agreement, the
term "Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability
for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of any Underwriter, the Company or any of their respective representatives,
officers or directors or any controlling persons thereof, and will survive
delivery of and payment for the Offered Securities. If this Agreement is
terminated pursuant to Section 8 or if for any reason the purchase of the
Offered Securities by the Underwriters is not consummated, the Company shall
remain responsible for the expenses to be paid or reimbursed by it pursuant to
Section 5 and the respective obligations of the Company and the Underwriters
pursuant to Section 7 shall remain in effect (provided, however, that the
Company's obligations under Section 5 and 7 shall not affect the rights of the
Company against any defaulting Underwriter), and if any Offered Securities have
been purchased hereunder the representations and warranties in Section 2 and all
obligations under Section 5 shall also remain in effect. If the purchase of the
Offered Securities by the Underwriters is not consummated for any reason other
than solely because of the termination of this Agreement pursuant to Section 8
or the occurrence of any event specified in clause (iii), (iv) or (v) of Section
6(c), the Company will reimburse the Underwriters for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by them in
connection with the offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and, if sent to
the Underwriters, will be mailed, delivered or telegraphed and confirmed to the
Representatives, c/o FleetBoston Robertson Stephens, Inc., 555 California
Street, Suite 2600, San Francisco, CA 94104, Attention:______________ or, if
sent to the Company, will be mailed, delivered or telegraphed and confirmed to
it at divine interVentures, inc. 4225 Naperville Road, Suite 400, Lisle, IL
60532, Attention: Larry S. Freedman, with a copy to Katten Muchin Zavis, 525
West Monroe Street, Suite 1600, Chicago, IL 60661-3693, Attention: Mark D.
Wood, provided, however, that any notice to an Underwriter pursuant to Section 7
will be mailed, delivered or telegraphed and confirmed to such Underwriter.
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<PAGE>
11. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7, and no other person
will have any right or obligation hereunder.
12. Representation of Underwriters. The Representatives will act for the
several Underwriters in connection with this financing, and any action under
this Agreement taken by the Representatives jointly or by Robertson Stephens
will be binding upon all the Underwriters.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to principles
of conflicts of laws.
The Company hereby submits to the non-exclusive jurisdiction of the Federal and
state courts in the Borough of Manhattan in The City of New York in any suit or
proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby.
22
<PAGE>
If the foregoing is in accordance with the Representatives' understanding of our
agreement, kindly sign and return to the Company one of the counterparts hereof,
whereupon it will become a binding agreement between the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
divine interVentures, inc.
By_______________________________
Title:
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first above
written.
FleetBoston Robertson Stephens, Inc.
Bear Sterns & Co. Inc.
Donaldson, Lufkin & Jenrette Securities Corporation
William Blair & Company, L.L.C.
DLJdirect, Inc.
Acting on behalf of themselves and as the
Representatives of the several
Underwriters
By: FleetBoston Robertson Stephens, Inc.
By___________________________
Title:
23
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
Underwriter Number of
----------- Firm Securities
---------------
<S> <C>
FleetBoston Robertson Stephens, Inc.
Donaldson, Lufkin & Jenrette Securities Corporation
Bear Sterns & Co. Inc.
William Blair & Company, L.L.C.
DLJdirect, Inc.
____________
Total $
============
</TABLE>
24
<PAGE>
SCHEDULE B
Subsidiaries
Consolidated Subsidiaries - Acquired
BeautyJungle.com, Inc.
bid4real.com, inc.
i-Street, Inc.
LiveOnTheNet.com, Inc.
mindwrap, inc.
NetUnlimited, Inc.
Oilspot.com, Inc.
OpinionWare.com, Inc.
Panthera Productions, LLC
Parlano, Inc.
ViaChange.com, Inc.
WebDesign Group, Inc.
Westbound Consulting, Inc.
Consolidated Subsidiaries - Established
Brandango, inc.
Buzz divine, inc.
Dotspot, Inc.
eXperience divine, inc.
FiNterics, Inc.
Host divine, Inc.
Justice divine, inc.
Knowledge divine, inc.
OfficePlanIt.com, Inc
salespring, inc!!
sho research, Inc.
Talent divine, inc.
Xqsite, Inc.
Skyscraper Management LLC
25
<PAGE>
SCHEDULE C
Associated Companies
Aluminium.com, Inc.
BidBuyBuild, Inc.
CapacityWeb.com, Inc.
closerlook, inc.
eFiltration.com, Inc.
Emicon Group, Inc.
Entrepower, Inc.
eReliable Commerce, Inc.
Farms.com, Ltd.
i-Fulfillment, Inc.
iGive.com, inc.
iSalvage.com, Inc
LAUNCHworks inc
Martin Partners, L.L.C.
Mercantec, Inc.
Outtask.com Inc
Perceptual Robotics, inc.
PocketCard, Inc.
TV House, Inc.
Whiplash, Inc
Xippix, Inc.
26
