-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, JV0n9OXNJOnap0+4jOxyKIlSaI3USK33D7WHP4SjwKdOL7qWJb4nxhuAc0TpDfsL NC4suYggKCyqbJ09JEeeTQ== 0000950136-05-000276.txt : 20050120 0000950136-05-000276.hdr.sgml : 20050120 20050120172822 ACCESSION NUMBER: 0000950136-05-000276 CONFORMED SUBMISSION TYPE: S-1/A PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20050120 DATE AS OF CHANGE: 20050120 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MAJESCO HOLDINGS INC CENTRAL INDEX KEY: 0001076682 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 061529524 STATE OF INCORPORATION: DE FISCAL YEAR END: 1230 FILING VALUES: FORM TYPE: S-1/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-120103 FILM NUMBER: 05539528 BUSINESS ADDRESS: STREET 1: 160 RARITAN CENTER PARKWAY STREET 2: SUITE 1 CITY: EDISON STATE: NJ ZIP: 08837 BUSINESS PHONE: 7328727490 MAIL ADDRESS: STREET 1: PO BOX 6570 CITY: EDISON STATE: NJ ZIP: 08818 FORMER COMPANY: FORMER CONFORMED NAME: CONNECTIVCORP DATE OF NAME CHANGE: 20010815 FORMER COMPANY: FORMER CONFORMED NAME: SPINROCKET COM INC DATE OF NAME CHANGE: 20000502 FORMER COMPANY: FORMER CONFORMED NAME: CDBEAT COM INC DATE OF NAME CHANGE: 19990503 S-1/A 1 file001.htm AMENDMENT NO. 3 TO S-1

As filed with the Securities and Exchange Commission on January 20, 2005

Registration No. 333-120103

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

PRE-EFFECTIVE AMENDMENT NO. 3
TO

FORM S-1

REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933

MAJESCO HOLDINGS INC.

(Exact Name of registrant as specified in its charter)


Delaware 7372 06-1529524
(State or other jurisdiction of
incorporation or organization)		 (Primary Standard Industrial
Classification Code Number)		 (IRS Employer Identification No.)

160 Raritan Center Parkway
Edison, New Jersey 08837
(732) 225-8910

(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)

Jan E. Chason, CFO
Majesco Holdings Inc.
160 Raritan Center Parkway
Edison, New Jersey 08837
(732) 225-8910

(Name, address, including zip code, and telephone number, including area code,
of agent for service)

Copies to:


Faith L. Charles, Esq. John V. Roos, Esq.
Todd E. Mason, Esq. Selim Day, Esq.
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. Wilson Sonsini Goodrich & Rosati
Chrysler Center, 666 Third Avenue Professional Corporation
New York, New York 10017 12 East 49th Street
(212) 935-3000 New York, New York 10017
  (212) 999-5800

Approximate date of commencement of proposed sale to public: As soon as practicable after this Registration Statement becomes effective.

If any of the securities being registered on this Form are being offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act, check the following box. [ ]

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ]________

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier registration statement for the same offering. [ ]________

If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier registration statement for the same offering. [ ]________

If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [ ]

The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to Section 8(a), may determine.



PART II

INFORMATION NOT REQUIRED IN PROSPECTUS

ITEM 13.    OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.

The following table sets forth the costs and expenses, other than underwriting discounts and commissions, payable by the registrant in connection with the sale of common stock being registered.


SEC registration fees $ 14,570  
NASD Filing Fee   12,000  
Blue sky fees and expenses*   8,000  
Costs of printing and engraving*   150,000  
Legal fees and expenses*   375,000  
Accounting fees and expenses*   125,000  
Miscellaneous*   9,430  
TOTAL* $ 694,000  
* Estimated

ITEM 14.    INDEMNIFICATION OF DIRECTORS AND OFFICERS.

The Delaware General Corporation Law authorizes corporations to limit or eliminate, subject to certain conditions, the personal liability of directors to corporations and their stockholders for monetary damages for breach of their fiduciary duties. Our certificate of incorporation limits the liability of our directors to the fullest extent permitted by Delaware law.

We have obtained director and officer liability insurance to cover liabilities of our directors and officers that may occur in connection with their services to us, including matters arising under the Securities Act. Our certificate of incorporation and bylaws also provide that we will indemnify and advance expenses to, to the fullest extent permitted by the Delaware General Corporation Law, any of our directors and officers, against any and all costs, expenses or liabilities incurred by them by reason of having been a director or officer.

Such limitation of liability and indemnification does not affect the availability of equitable remedies. In addition, we have been advised that in the opinion of the SEC, indemnification for liabilities arising under the Securities Act is against public policy as expressed in the Securities Act and is therefore unenforceable.

ITEM 15.    RECENT SALES OF UNREGISTERED SECURITIES.

We believe that the sale and issuance of the securities described in paragraphs 1 - - 11 below are exempt from registration under the Securities Act by virtue of satisfaction of the conditions of Section 4(2). All of the issuances listed in paragraphs 1-11 below were made to accredited investors. No underwriter was involved with these transactions.

1.  On March 18, 2002, we issued 172,142 shares of common stock to our then officers and directors in exchange for services provided to us, and in conjunction with such issuance, recognized $22,475 of compensation expense. During the same period, we issued 71,428 shares of common stock to satisfy $42,292 of accounts payable outstanding at December 31, 2001.
2.  During the quarter ended March 31, 2002, we issued 422,857 shares of our common stock to consultants as compensation for services rendered in connection with the letter of intent to acquire Aqua Development Corp. and in conjunction with such issuance, recognized consulting expense of $58,922.
3.  During the six months ended June 30, 2002, we raised $297,500 through the issuance of 425,000 shares of our common stock at $0.70 per share to four of our existing stockholders and consultants.

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4.  During the nine months ended September 30, 2003, we raised $175,000 through the issuance of 250,000 shares of our common stock at $0.70 per share to various accredited investors. In addition, during such period, we issued 35,714 shares of common stock at $0.70 per share to satisfy a $25,000 loan payable.
5.  During the period from October 1, 2003 through December 5, 2003, we raised $507,200 through the sale of 724,571 shares of common stock at $0.70 per share.
6.  During November 2003, we issued 43,142 shares of common stock to CEOcast, Inc. and 22,857 shares of common stock to Hayden Communications, Inc. at $.70 per share pursuant to consultation agreements with these firms, as compensation for services.
7.  During December 2003, we issued 14,285 shares of common stock to Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., pursuant to a settlement agreement, as compensation for services.
8.  On December 5, 2003, we consummated a merger with Majesco Sales Inc., whereby CTTV Merger Corp., our wholly-owned subsidiary, merged with and into Majesco. Pursuant to the merger, the stockholders of Majesco received 2,189,285 shares of our common stock and 132,142 shares of series A convertible preferred stock in exchange for all of the issued and outstanding common stock of Majesco. On April 23, 2004, the holders of the series A convertible preferred stock converted, in the aggregate, 81,841 shares, representing all of the series A convertible preferred stock issued and outstanding immediately prior to their conversion, into 5,810,721 shares of our common stock.
9.  On February 26, 2004, we raised gross proceeds of approximately $25.8 million in a private placement in which we issued to accredited investors 369 units, each unit consisting of (i) one share of our 7% convertible preferred stock, convertible into 1,428 shares of our common stock and (ii) a three year warrant to purchase 1,428 shares of our common stock at an exercise price of $7.00 per share. The net proceeds of the private placement were used as follows: (i) approximately $3.3 million to pay certain creditors, including part of a previously negotiated settlement amount to Atari Interactive, Inc.; (ii) approximately $2.5 million to repay portions of loans previously made to us by Jesse Sutton, our President, and Joseph Sutton, our Executive Vice President of Research & Development; and (iii) the remainder for working capital purposes. In addition, JMP Securities LLC, the placement agent in the private placement, received a warrant to purchase up to 268 units, on the same terms as were issued to the investors.
10.  On October 1, 2004, we issued to (i) the purchasers of our units consisting of 7% convertible preferred stock and warrants sold in our February 2004 private placement, (ii) the holders of an aggregate of 1,368,348 shares of common stock, and (iii) a holder of 262,857 shares underlying warrants and convertible securities, warrants to purchase an aggregate of 526,377 shares of common stock, exercisable at $21.00 per share and expiring on September 15, 2007. The consideration for the issuance of the warrants was a waiver and deferral of certain penalties owed to certain of such purchasers and an agreement by such purchasers restricting the disposition of such securities for a determined period of time ("lock-up").
11.  On December 22, 2004, we issued 1,171,419 shares of common stock at a reduced exercise price of $5.95 per share, which were originally exercisable at $7.00 and we received $6.4 million as net proceeds from the exercise of these warrants. We offered certain qualified institutional buyers and institutional accredited investors the reduction in the exercise price to induce them to exercise.

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ITEM 16.    EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.

(A)    EXHIBITS


Exhibit
Number		 Description of Exhibit
1.1 Form of Underwriting Agreement
2.1 Agreement and Plan of Merger, dated as of November 10, 2003, by and among ConnectivCorp, CTTV Merger Corp. and Majesco Sales Inc. (incorporated by reference to Exhibit 2.1 to an Amendment to our Current Report on Form 8-K filed on December 22, 2003).
2.2 Amendment to Agreement and Plan of Merger, dated December 5, 2003, by and among ConnectivCorp, CTTV Merger Corp. and Majesco Sales Inc. (incorporated by reference to Exhibit 2.2 to our Current Report on Form 8-K filed on December 22, 2003).
3.1 Certificate of Incorporation of Majesco Holdings Inc. (incorporated by reference to Exhibit 3.1 to our Annual Report on Form 10-KSB filed on April 16, 2002).
3.2 Amendment to Certificate of Incorporation, dated September 11, 2000 (incorporated by reference to Exhibit 3.1 to our Current Report on Form 8-K filed on September 13, 2000).
3.3 Amendment to the Amended and Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to our Current Report on Form 8-K filed on April 27, 2004).
3.4 Bylaws of Majesco Holdings Inc., as amended (incorporated by reference to Exhibit 3.1 to our Quarterly Report on Form 10-Q filed on September 14, 2004).
4.1 Certificate of Designations, Preferences and Rights of 7% Cumulative Convertible Preferred Stock, filed with the Secretary of State of the State of Delaware on February 20, 2004 (incorporated by reference to Exhibit 4.1 to our Current Report on Form 8-K filed on March 1, 2004).
4.2 Form of investor Subscription Agreement (incorporated by reference to Exhibit 4.2 to our Current Report on Form 8-K filed on March 1, 2004).
4.3 Form of warrant issued to investors (incorporated by reference to Exhibit 4.3 to our Current Report on Form 8-K filed on March 1, 2004).
4.4 Form of placement agent warrant (incorporated by reference to Exhibit 4.4 to our Current Report on Form 8-K filed on March 1, 2004).
5.1 Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel to the Registrant, with respect to the legality of securities being registered.
10.1 Lease Agreement, dated as of February 2, 1999, by and between 160 Raritan Center Parkway, L.L.C. and Majesco Sales Inc. (incorporated by reference to Exhibit 10.1 to our Current Report on Form 8-K filed on August 11, 2004).
10.2 Xbox Publisher License Agreement, dated January 31, 2001, by and between Microsoft Corporation and Majesco Sales Inc. (incorporated by reference to Exhibit 10.3 to an Amendment to our Current Report on Form 8-K filed on October 22, 2004).
10.3 Amendment to the Xbox Publisher Licensing Agreement, dated April 4, 2002, by and between Microsoft Corporation and Majesco Sales Inc. (incorporated by reference to Exhibit 10.2 to our Current Report on Form 8-K filed on September 3, 2004).
10.4 Amendment to the Xbox Publisher Licensing Agreement (Xbox Live Distribution), dated March 17, 2003, by and between Microsoft Corporation and Majesco Sales Inc. (incorporated by reference to Exhibit 10.4 to an Amendment to our Current Report on Form 8-K filed on October 22, 2004).

II-3




Exhibit
Number		 Description of Exhibit
10.5 Amendment to the Xbox Publisher License Agreement (Tiered Royalty Rate Structure and Xbox Platinum Hits Program), dated January 31, 2003, by and between Microsoft Corporation and Majesco Sales Inc. (incorporated by reference to Exhibit 10.4 to our Current Report on Form 8-K filed on September 3, 2004).
10.6 PlayStation 2 Licensed Publisher Agreement, dated April 1, 2000, by and between Sony Computer Entertainment America, Inc. and Majesco Sales Inc. (incorporated by reference to Exhibit 10.5 to our Current Report on Form 8-K filed on September 3, 2004).
10.7 License Agreement for Game Boy Advance (Western Hemisphere), dated May 10, 2001, by and between Nintendo of America, Inc. and Majesco Sales Inc. (incorporated by reference to Exhibit 10.1 to an Amendment to our Current Report on Form 8-K filed on October 22, 2004).
10.8 License Agreement for Gamecube, (Western Hemisphere), dated January 11, 2001, by and between Nintendo of America, Inc. and Majesco Sales Inc. (incorporated by reference to Exhibit 10.2 to an Amendment to our Current Report on Form 8-K filed on October 22, 2004).
10.9 Software Distribution Agreement, dated April 8, 2002, by and between Konami of America, Inc. and Majesco Sales Inc. (incorporated by reference to Exhibit 10.5 to an Amendment to our Current Report on Form 8-K filed on October 22, 2004).
10.10 Amendment to Software Distribution Agreement, dated April 25, 2002, by and between Konami of America, Inc. and Majesco Sales Inc. (incorporated by reference to Exhibit 10.6 to a Current Report on Form 8-K filed on September 22, 2004).
10.11 License Agreement, dated April 30, 2002, by and between Namco Hometek Inc. and Majesco Sales Inc. (incorporated by reference to Exhibit 10.6 to an Amendment to our Current Report on Form 8-K filed on October 22, 2004).
10.12 First Amendment, dated January 7, 2003, to License Agreement, dated July 2, 2002, by and between NAMCO Hometek Inc. and Majesco Sales Inc. (incorporated by reference to Exhibit 10.1 to our Current Report on Form 8-K filed on October 15, 2004).
10.13 Second Amendment, dated May 7, 2003, to License Agreement, dated July 2, 2002, by and between NAMCO Hometek Inc. and Majesco Sales Inc. (incorporated by reference to Exhibit 10.2 to our Current Report on Form 8-K filed on October 15, 2004).
10.14 Third Amendment, dated July 2, 2002, to License Agreement, dated December 18, 2003, by and between NAMCO Hometek Inc. and Majesco Sales Inc. (incorporated by reference to Exhibit 10.8 to our Current Report on Form 8-K filed on September 22, 2004).
10.15 License Agreement, dated June 30, 2000, by and between Activision Publishing, Inc. and Majesco Sales Inc. (incorporated by reference to Exhibit 10.1 to our Current Report on Form 8-K filed on September 22, 2004).
10.16 Third Amendment, dated June 30, 2000, to License Agreement, dated September 22, 2002, by and between Majesco Sales Inc. and Activision Publishing, Inc. (incorporated by reference to Exhibit 10.4 to our Current Report on Form 8-K filed on September 22, 2004).
10.17 Escrow Agreement, dated February 19, 2004, by and among Majesco Holdings Inc., Jesse Sutton, Joseph Sutton, Adam Sutton, Morris Sutton, on behalf of Sarah Sutton and American Stock Transfer and Trust Company (incorporated by reference to Exhibit 10.17 to an Amendment to our Registration Statement on Form S-1 filed on October 19, 2004).

II-4




Exhibit
Number		 Description of Exhibit
10.18 Employment Agreement, dated August 24, 2004, by and among Majesco Holdings Inc., Majesco Sales Inc. and Carl Yankowski (incorporated by reference to Exhibit 10.1 to an Amendment to our Current Report on Form 8-K filed on August 31, 2004).
10.19 Factoring Agreement, dated April 24, 1989, between Majesco Sales Inc. and Rosenthal & Rosenthal, Inc. (incorporated by reference to Exhibit 10.1 to our Current Report on Form 8-K filed on October 22, 2004).
10.20 Amendment to Factoring Agreement, dated March 18, 1999, between Majesco Sales Inc. and Rosenthal & Rosenthal, Inc. (incorporated by reference to Exhibit 10.2 to our Current Report on Form 8-K filed on October 22, 2004).
10.21 Amendment to Factoring Agreement, dated September 30, 2004, between Majesco Sales Inc. and Rosenthal & Rosenthal, Inc. (incorporated by reference to Exhibit 10.3 to our Current Report on Form 8-K filed on October 22, 2004).
10.22 Assignment of Monies Due Under Factoring Agreement, dated July 21, 2000, by and among Majesco Sales Inc., Rosenthal & Rosenthal, Inc. and Transcap Trade Finance (incorporated by reference to Exhibit 10.4 to our Current Report on Form 8-K filed on October 22, 2004).
10.23 Master Purchase Order Assignment Agreement, dated July 21, 2000, between Majesco Sales Inc. and Transcap Trade Finance (incorporated by reference to Exhibit 10.5 to our Current Report on Form 8-K filed on October 22, 2004).
10.24 Sixth Amendment to Master Purchase Order Assignment Agreement, dated September 12, 2003, by and between Transcap Trade Finance and Majesco Sales Inc. (incorporated by reference to Exhibit 10.6 to our Current Report on Form 8-K filed on October 22, 2004).
10.25 Seventh Amendment to Master Purchase Order Assignment Agreement, dated October 16, 2003, by and between Transcap Trade Finance and Majesco Sales Inc. (incorporated by reference to Exhibit 10.7 to our Current Report on Form 8-K filed on October 22, 2004).
10.26 Eighth Amendment to Master Purchase Order Assignment Agreement, dated April 14, 2004, by and between Transcap Trade Finance and Majesco Sales Inc. (incorporated by reference to Exhibit 10.8 to our Current Report on Form 8-K filed on October 22, 2004).
10.27 Guaranty and Pledge Agreement, dated July 21, 2000, by and among Jesse Sutton, Joseph Sutton, Morris Sutton, Adam Sutton and Transcap Trade Finance (incorporated by reference to Exhibit 10.9 to our Current Report on Form 8-K filed on October 22, 2004).
10.28 Security Agreement and Financing Statement, dated July 21, 2000, by and among Majesco Sales Inc. and Transcap Trade Finance (incorporated by reference to Exhibit 10.10 to our Current Report on Form 8-K filed on October 22, 2004).
10.29 Employment Agreement, dated October 5, 2004, by and between Majesco Sales Inc., Majesco Holdings Inc. and Patrick Flaherty (incorporated by reference to Exhibit 10.01 to our Current Report on Form 8-K filed on October 8, 2004).
10.30 Form of Warrant Exercise Agreement, dated December 17, 2004 (incorporated by reference to Exhibit 10.1 to our Current Report on Form 8-K filed on January 7, 2004).
**23.1 Consent of Goldstein Golub Kessler LLP.
23.2 Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. (see Exhibit 5.1).
**24.1 Powers of Attorney.
** Previously filed.

II-5



(B)    FINANCIAL STATEMENT SCHEDULES

Financial Statement Schedules are omitted because the information is included in our financial statements or notes to those financial statements.

ITEM 17.    UNDERTAKINGS.

The undersigned registrant hereby undertakes that:

(i)    for purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance on Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act of 1933 shall be deemed to be part of this registration statement as of the time it is declared effective;

(ii)     For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein; and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and

(iii)      for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.

II-6



SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has duly caused this Amendment No. 3 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Edison, New Jersey, on January 20, 2005.

MAJESCO HOLDINGS INC.
By: /s/ Carl Yankowski
Carl Yankowski
Chief Executive Officer

Pursuant to the requirements of the Securities Act of 1933, this Amendment No. 3 to the Registration Statement has been signed by the following persons in the capacities held on the dates indicated.

SIGNATURE TITLE DATE
/s/ Carl Yankowski Chief Executive Officer
and Chairman
(principal executive officer)		 January 20, 2005
Carl Yankowski
/s/ Jan E. Chason Chief Financial Officer
(principal financial and accounting officer)		 January 20, 2005
Jan E. Chason
* President and Director January 20, 2005
Jesse Sutton
* Director, Chairman Emeritus January 20, 2005
Morris Sutton
* Executive Vice President – Research
and Development and Director		 January 20, 2005
Joseph Sutton
* Director January 20, 2005
Louis Lipschitz
* Director January 20, 2005
Marc Weisman
* Director January 20, 2005
James Halpin
* Director January 20, 2005
F. Peter Cuneo
* Director January 20, 2005
Laurence Aronson

* By executing his name hereto, Jan E. Chason is signing this document on behalf of the persons indicated above pursuant to the powers of attorney duly executed by such persons and filed with the Securities and Exchange Commission.

By:  /s/ Jan E. Chason

Jan E. Chason

II-7



 GRAPHIC 2 ebox.gif GRAPHIC begin 644 ebox.gif M1TE&.#EA"@`*`(```````/___R'Y!```````+``````*``H```(1A(\0RVO= - -'G1J!CDQU+'FE!0`.S\_ ` end GRAPHIC 3 spacer.gif GRAPHIC begin 644 spacer.gif K1TE&.#EA`0`!`(```````````"'Y!`$`````+``````!``$```("1`$`.S\_ ` end EX-1.1 4 file002.htm FORM OF UNDERWRITING AGREEMENT 






                                6,000,000 Shares(1)

                             Majesco Holdings, Inc.

                                  Common Stock

                               ($0.001 Par Value)


                          EQUITY UNDERWRITING AGREEMENT


                                                                January __, 2005


RBC Capital Markets Corporation
JMP Securities LLC
Harris Nesbitt Corp.
Wedbush Morgan Securities Inc.
As the Representatives of the
      several underwriters named in Schedule I hereto
c/o RBC Capital Markets
One Liberty Plaza, 165 Broadway
New York, NY 10006-1404

Ladies and Gentlemen:

         Majesco Holdings, Inc., a Delaware corporation (the "Company"), and
certain stockholders of the Company designated in Schedule II hereto as selling
stockholders (the "Selling Stockholders") propose to sell to the several
underwriters named in Schedule I (the "Underwriters") hereto for whom you are
acting as representatives (the "Representatives") an aggregate of 6,000,000
shares of the Company's Common Stock, par value $0.001 per share (the "Firm
Shares"), of which 3,682,176 shares will be sold by the Company and 2,317,824
shares will be sold by the Selling Stockholders. The respective amounts of the
Firm Shares to be so purchased by the several Underwriters are set forth
opposite their names in Schedule I hereto, and the respective amounts to be sold
by the Selling Stockholders are set forth opposite their names in Schedule II
hereto. The Company and the Principal Stockholders (as defined herein) also
propose to sell at the Underwriters' option an aggregate of up to 900,000
additional shares of the Company's Common Stock (the "Option Shares") as set
forth below.

- ----------------
(1)  Plus an option to purchase up to 900,000 additional shares to cover
     over-allotments.



         As the Representatives, you have advised the Company, the Selling
Stockholders and the Principal Stockholders (a) that you are authorized to enter
into this Agreement on behalf of the several Underwriters, and (b) that the
several Underwriters are willing, acting severally and not jointly, to purchase
the numbers of Firm Shares set forth opposite their respective names in Schedule
I, plus their pro rata portion of the Option Shares if you elect to exercise the
over-allotment option in whole or in part for the accounts of the several
Underwriters. The Firm Shares and the Option Shares (to the extent the
aforementioned option is exercised) are herein collectively called the "Shares."

         In consideration of the mutual agreements contained herein and of the
interests of the parties in the transactions contemplated hereby, the parties
hereto agree as follows:

         1.A. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.

              The Company represents and warrants to each of the Underwriters as
follows:

              (a) A registration statement on Form S-1 (File No. 333-120103)
with respect to the Shares has been prepared by the Company in conformity with
the requirements of the Securities Act of 1933, as amended (the "Act"), and the
Rules and Regulations (the "Rules and Regulations") of the Securities and
Exchange Commission (the "Commission") thereunder and has been filed with the
Commission. Copies of such registration statement, including any amendments
thereto, the preliminary prospectuses (meeting the requirements of the Rules and
Regulations) contained therein and the exhibits, financial statements and
schedules, as finally amended and revised, have heretofore been delivered by the
Company to you. Such registration statement, together with any registration
statement filed by the Company pursuant to Rule 462(b) of the Act, herein
referred to as the "Registration Statement," which shall be deemed to include
all information omitted therefrom in reliance upon Rule 430A and contained in
the Prospectus referred to below, has become effective under the Act and no
post-effective amendment to the Registration Statement has been filed as of the
date of this Agreement. "Prospectus" means the form of prospectus first filed
with the Commission pursuant to Rule 424(b). Each preliminary prospectus
included in the Registration Statement prior to the time it becomes effective is
herein referred to as a "Preliminary Prospectus."

              (b) The Commission has not issued an order preventing or
suspending the use of any Prospectus relating to the proposed offering of the
Shares nor instituted proceedings for that purpose. The Registration Statement
contains, and the Prospectus and any amendments or supplements thereto will
contain, all statements which are required to be stated therein by, and will
conform to, the requirements of the Act and the Rules and Regulations. The
Registration Statement and any amendment thereto do not contain, and will not
contain, any untrue statement of a material fact and do not omit, and will not
omit, to state any material fact required to be stated therein or necessary to
make the statements therein not misleading. The Prospectus and any amendments
and supplements thereto do not contain, and will not contain, any untrue
statement of material fact; and do not omit, and will not omit, to state any
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances



                                       2


under which they were made, not misleading; provided, however, that neither the
Company nor the Principal Stockholders make any representations or warranties as
to information contained in or omitted from the Registration Statement or the
Prospectus, or any such amendment or supplement, in reliance upon, and in
conformity with, written information furnished to the Company by or on behalf of
any Underwriter through the Representatives, specifically for use in the
preparation thereof. There are no contracts or documents that are required to be
filed as exhibits to the Registration Statement or described in the Registration
Statement or the Prospectus which are not so filed or described as required, and
such contracts and documents as are summarized in the Registration Statement or
the Prospectus are fairly summarized in all material respects.

                  Each document filed by the Company within the past twenty four
(24) months pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), when it was filed with the Commission, complied in all material
respects to the requirements of the Exchange Act and the rules and regulations
of the Commission thereunder, and no such document contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and further
documents so filed when such documents are filed with the Commission, will
conform in all material respects to the requirements of the Exchange Act and the
rules and regulations of the Commission thereunder, and no such document will
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading.

                  (c) This Agreement has been duly authorized, executed and
delivered by the Company, and constitutes a valid, legal, and binding obligation
of the Company, enforceable in accordance with its terms, except as rights to
indemnity hereunder may be limited by federal or state securities laws and
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the rights of creditors generally, and
subject to general principles of equity. The Company has full power and
authority to enter into this Agreement and to authorize, issue and sell the
Shares as contemplated by this Agreement.

                  (d) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State of
Delaware, with corporate power and authority to own or lease its properties and
conduct its business as described in the Registration Statement. Each of the
subsidiaries of the Company (collectively, the "Subsidiaries") has been duly
organized and is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, with corporate power and
authority to own or lease its properties and conduct its business as described
in the Registration Statement. The Subsidiaries are the only subsidiaries,
direct or indirect, of the Company. The Company and each of the Subsidiaries are
duly qualified to transact business and are in good standing in all
jurisdictions in which the conduct of their business requires such
qualification; except where the failure to be so qualified or to be in good
standing would not have a material adverse effect on the condition (financial or
otherwise), properties, assets, liabilities, rights, operations, earnings,
business, management or prospects of the Company and its Subsidiaries taken as a
whole, whether or not arising from transactions in the ordinary course of
business (a "Material Adverse Effect"). The outstanding shares of capital stock
of each of



                                       3


the Subsidiaries have been duly authorized and validly issued, are fully paid
and non-assessable and are wholly owned by the Company or another Subsidiary
free and clear of all liens, encumbrances and equities and claims; and no
options, warrants or other rights to purchase, agreements or other obligations
to issue or other rights to convert any obligations into shares of capital stock
or ownership interests in the Subsidiaries are outstanding.

                  (e) The outstanding shares of Common Stock of the Company,
including all shares to be sold by the Selling Stockholders, have been duly
authorized and validly issued and are fully paid and non-assessable and issued
in accordance with all applicable securities laws; the portion of the Shares to
be issued and sold by the Company have been duly authorized and when issued and
paid for as contemplated herein will be validly issued, fully paid and
non-assessable; and no preemptive rights of Shareholders exist with respect to
any of the Shares or the issue and sale thereof. Neither the filing of the
Registration Statement nor the offering or sale of the Shares as contemplated by
this Agreement gives rise to any rights, other than those which have been waived
or satisfied, for or relating to the registration of any shares of Common Stock.

                  (f) The information set forth under the caption
"Capitalization" in the Prospectus is true and correct. All of the Shares
conform to the description thereof contained in the Registration Statement. The
form of certificates for the Shares conforms to the corporate law of the
jurisdiction of the Company's incorporation. No holders of securities of the
Company have rights to the registration of such securities under the
Registration Statement that have not been complied with or waived.

                  (g) The Company has not distributed and will not distribute
any prospectus or other offering material (including, without limitation,
content on the Company's website that may be deemed to be a prospectus or other
offering material) in connection with the offering and sale of the Shares other
than any Preliminary Prospectus or the Prospectus or other materials permitted
by the Act to be distributed by the Company.

                  (h) The consolidated financial statements of the Company and
the Subsidiaries, together with related notes and schedules as set forth in the
Registration Statement, present fairly the financial position and the results of
operations and cash flows of the Company and the consolidated Subsidiaries, at
the indicated dates and for the indicated periods. Such financial statements and
related schedules have been prepared in accordance with U.S. generally accepted
principles of accounting, consistently applied throughout the periods involved,
except as disclosed therein, and all adjustments necessary for a fair
presentation of results for such periods have been made. The summary financial
and statistical data included in the Registration Statement presents fairly the
information shown therein and such data has been compiled on a basis consistent
with the financial statements presented therein and the books and records of the
Company.

                  (i) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and



                                       4


to maintain accountability for assets; (iii) access to assets is permitted only
in accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.

                  (j) Goldstein Golub Kessler, LLP, which has certified certain
financial statements of the Company and delivered its opinion with respect to
the audited financial statements and schedules included in the Registration
Statement and the Prospectus, are independent public accountants with respect to
the Company within the meaning of the Act and the Rules and Regulations.

                  (k) There is no action, suit, claim or proceeding pending or,
to the knowledge of the Company, threatened against the Company or any of the
Subsidiaries before any court or administrative agency or otherwise which if
determined adversely to the Company or any of its Subsidiaries might have a
Material Adverse Effect or prevent the consummation of the transactions
contemplated hereby, except as set forth in the Registration Statement and the
Prospectus.

                  (l) No labor problem or dispute with the employees of the
Company or the Subsidiaries exists or, to the Company's knowledge, is threatened
or imminent, and the Company is not aware of any existing or imminent labor
disturbance by the employees of any of its or its Subsidiaries' principal
suppliers, contractors or customers, that could have a Material Adverse Effect.

                  (m) The Company and the Subsidiaries have good and marketable
title to all of the properties and assets reflected in the financial statements
(or as described in the Registration Statement) hereinabove described, subject
to no lien, mortgage, pledge, charge or encumbrance of any kind except those
reflected in such financial statements (or as described in the Registration
Statement) or which are not material in amount. The Company and the Subsidiaries
occupy their leased properties under valid and binding leases conforming in all
material respects to the description thereof set forth in the Registration
Statement and the Prospectus.

                  (n) The Company and the Subsidiaries have filed all Federal,
State, local and foreign tax returns which have been required to be filed and
have paid all taxes indicated by said returns and all assessments received by
them or any of them to the extent that such taxes have become due and are not
being contested in good faith and for which an adequate reserve for accrual has
been established in accordance with U.S. generally accepted accounting
principles. All tax liabilities have been adequately provided for in the
financial statements of the Company, and the Company does not know of any actual
or proposed additional material tax assessments. 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 or the issuance by the Company or sale
by the Company of the Shares.



                                       5


                  (o) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, as it may be amended or
supplemented, there has not been any material adverse change or any development
involving a prospective change which has had or is reasonably likely to have a
Material Adverse Effect, whether or not occurring in the ordinary course of
business, and there has not been any material transaction entered into or any
material transaction that is probable of being entered into by the Company or
the Subsidiaries, other than transactions in the ordinary course of business and
changes and transactions described in the Registration Statement and the
Prospectus, as it may be amended or supplemented. The Company and the
Subsidiaries have no material obligations, contingent or otherwise, that are not
disclosed in the Company's financial statements in the Registration Statement
and the Prospectus.

                  (p) Neither the Company nor any of the Subsidiaries is or with
the giving of notice or lapse of time or both, will be, in violation of or in
default (i) in any respect under its Certificate of Incorporation ("Charter") or
By-Laws or (ii) under any agreement, lease, contract, indenture or other
instrument or obligation to which it is a party or by which it, or any of its
properties, is bound and which default under this clause (ii) has had or is
reasonably likely to have a Material Adverse Effect. The execution and delivery
of this Agreement and the consummation of the transactions herein contemplated
and the fulfillment of the terms hereof will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default under, any
contract, indenture, mortgage, deed of trust or other agreement or instrument to
which the Company or any of the Subsidiaries is a party, or of the Charter or
By-Laws of the Company or any law, order, rule or regulation applicable to the
Company or any of the Subsidiaries of any court or of any regulatory body or
administrative agency or other governmental body having jurisdiction.

                  (q) Each approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or other
governmental body necessary in connection with the execution and delivery by the
Company of this Agreement and the consummation of the transactions herein
contemplated (except such additional steps as may be required by the Commission,
the National Association of Securities Dealers, Inc. (the "NASD") or such
additional steps as may be necessary to qualify the Shares for public offering
by the Underwriters under state securities or Blue Sky laws) has been obtained
or made and is in full force and effect.

                  (r) The Company and each of the Subsidiaries has all material
licenses, certifications, permits, franchises, approvals, clearances and other
regulatory authorizations ("Permits") from governmental authorities as are
necessary to conduct its businesses as currently conducted and to own, lease and
operate its properties in the manner described in the Prospectus. There is no
claim, proceeding or controversy, pending or, to the knowledge of the Company or
any of the Subsidiaries, threatened, involving the status of or sanctions under
any of the Permits. The Company and each of the Subsidiaries has fulfilled and
performed all of its material obligations with respect to the Permits, and no
event has occurred which allows, or after notice or lapse of time would allow,
the revocation, termination, modification or other impairment of the rights of
the Company or any of the Subsidiaries under such Permit. None of the Permits
contains any restriction that is materially burdensome on the Company or any of
its Subsidiaries.



                                       6


                  (s) To the Company's knowledge, there are no affiliations or
associations between any member of the NASD and any of the Company's officers,
directors or 5% or greater security holders, except as set forth in the
Registration Statement.

                  (t) Neither the Company, nor to the Company's knowledge, any
of its affiliates, has taken or may take, directly or indirectly, any action
designed to cause or result in, or which has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of the shares of Common Stock to facilitate the sale or resale of the
Shares. The Company acknowledges that the Underwriters may engage in passive
market making transactions in the Shares in accordance with Regulation M under
the Exchange Act.

                  (u) Neither the Company nor any of the Subsidiaries is an
"investment company" within the meaning of such term under the Investment
Company Act of 1940, and the rules and regulations of the Commission thereunder.

                  (v) The Company and each of the Subsidiaries carry, or are
covered by, insurance in such amounts and covering such risks as is adequate for
the conduct of their respective businesses and the value of their respective
properties and as is customary for companies engaged in similar industries. All
policies of insurance insuring the Company or any Subsidiary or any of their
respective businesses, assets, employees, officers and directors are in full
force and effect, and the Company and the Subsidiaries are in compliance with
the terms of such policies in all material respects. There are no claims by the
Company or any Subsidiary under any such policy or instrument as to which an
insurance company is denying liability or defending under a reservation of
rights clause.

                  (w) The Company is in compliance in all material respects with
all presently applicable provisions of the Employee Retirement Income Security
Act of 1974, as amended, including the regulations and published interpretations
thereunder ("ERISA"); no "reportable event" (as defined in ERISA) has occurred
with respect to any "pension plan" (as defined in ERISA) for which the Company
would have any liability; the Company has not incurred and does not expect to
incur liability under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, any "pension plan" or (ii) Sections 412 or 4971 of the Internal
Revenue Code of 1986, as amended, including the regulations and published
interpretations thereunder (the "Code"); and each "pension plan" for which the
Company would have any liability that is intended to be qualified under Section
401(a) of the Code is so qualified in all material respects and nothing has
occurred, whether by action or by failure to act, which would cause the loss of
such qualification.

                  (x) [Intentionally Omitted.]

                  (y) Other than as contemplated by this Agreement, the Company
has not incurred any liability for any finder's or broker's fee, or agent's
commission in connection with the execution and delivery of this Agreement or
the consummation of the transactions contemplated hereby.



                                       7


                  (z) Other than the Subsidiaries, the Company does not own,
directly or indirectly, any shares of capital stock and does not have any other
equity or ownership or proprietary interest in any corporation, partnership,
association, trust, limited liability company, joint venture or other entity.

                  (aa) Neither the Company nor any of the Subsidiaries has sent
or received any notice indicating the termination of or intention to terminate
any of the contracts or agreements referred to or described in the Registration
Statement or the Prospectus, or filed as an exhibit to the Registration
Statement, and no such termination has been threatened by the Company, any
Subsidiary or any other party to any such contract or agreement.

                  (bb) Neither the Company nor any Subsidiary is in violation of
any statute, any 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 chemicals, toxic substances or radioactive and biological
materials or relating to the protection or restoration of the environment or
human exposure to hazardous chemicals, toxic substances or radioactive and
biological materials (collectively, "Environmental Laws"). Neither the Company
nor the Subsidiaries own or operate 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 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.

                  (cc) No payments or inducements have been made or given,
directly or indirectly, to any federal or local official or candidate for, any
federal or state office in the United States or foreign offices by the Company
or any Subsidiary, by any of their officers, directors, employees or agents or,
to the knowledge of the Company, by any other person in connection with any
opportunity, contract, permit, certificate, consent, order, approval, waiver or
other authorization relating to the business of the Company or any Subsidiary,
except for such payments or inducements as were lawful under applicable laws,
rules and regulations. Neither the Company nor any Subsidiary, nor, to the best
knowledge of the Company, any director, officer, agent, employee or other person
associated with or acting on behalf of the Company or any Subsidiary, (i) has
used any corporate funds for any unlawful contribution, gift, entertainment or
other unlawful expense relating to political activity; (ii) made any direct or
indirect unlawful payment to any government official or employee from corporate
funds; (iii) violated or is in violation of any provision of the Foreign Corrupt
Practices Act of 1977; or (iv) made any bribe, unlawful rebate, payoff,
influence payment, kickback or other unlawful payment in connection with the
business of the Company or any Subsidiary.

                  (dd) The Company and each of the Subsidiaries owns, licenses,
or otherwise has rights in all Unites States and foreign patents, trademarks,
service marks, tradenames, copyrights, trade secrets and other proprietary
rights necessary for the conduct of its respective business as currently carried
on and as proposed to be carried on as described in the Registration



                                       8


Statement and the Prospectus (collectively and together with any applications or
registrations for the foregoing, the "Intellectual Property"). Except as
specifically described in the Registration Statement or the Prospectus, (i) no
third parties have obtained rights to any such Intellectual Property from the
Company, other than licenses granted in the ordinary course and those that would
not have a Material Adverse Effect; (ii) to the Company's knowledge, there is no
infringement or misappropriation by third parties of any such Intellectual
Property; (iii) there is no pending or, to the Company's knowledge, threatened
action, suit, proceeding or claim by others challenging the Company's or any
Subsidiary's rights in or to any such Intellectual Property, and the Company is
unaware of any facts which would form a basis for any such claim; (iv) there is
no pending or, to the Company's knowledge, threatened action, suit, proceeding
or claim by others challenging the validity, enforceability, or scope of any
such Intellectual Property, and the Company is unaware of any facts which would
form a basis for any such claim; (v) there is no prior, pending or, to the
Company's knowledge, threatened action, suit, proceeding or claim by others that
the Company any of the Subsidiaries, or any of the Company's or its
Subsidiaries' products, product candidates, or services infringes,
misappropriates, or otherwise violates, or would infringe upon, misappropriate
or otherwise violate the development or commercialization of its products,
product candidates, or services described in the Prospectus, any patent,
trademark, copyright, trade secret or other proprietary right of others, and the
Company is unaware of any facts which would form a basis for any such claim;
(vi) to the Company's knowledge there is no patent or patent application that
contains claims that cover or may cover any Intellectual Property described in
the Prospectus as being owned by or licensed to the Company or any of the
Subsidiaries or that is necessary for the conduct of their businesses as
currently or contemplated to be conducted or that interferes with the issued or
pending claims of any such Intellectual Property; (vii) there is no prior art or
public or commercial activity of which the Company is aware that may render any
patent held by the Company or any of the Subsidiaries invalid or any patent
application held by the Company or any of the Subsidiaries unpatentable which
has not been disclosed to the U.S. Patent and Trademark Office; and (viii)
neither Company nor its Subsidiaries have committed any act or omitted to
undertake any act the effect of such commission or omission would render the
Intellectual Property invalid or unenforceable in whole or in part. None of the
technology employed by the Company has been obtained or, to the Company's
knowledge, is being used by the Company in violation of the rights of any person
or third party. The Company knows of no infringement or misappropriation by
others of Intellectual Property. Schedule III lists all of the issued patents in
which the Company or any of the Subsidiaries has rights.

                  (ee) The conduct of business by the Company and each of the
Subsidiaries complies, and at all times has complied, in all material respects
with federal, state, local and foreign laws, statutes, ordinances, rules,
regulations, decrees, orders, Permits and other similar items ("Laws")
applicable to its business. Neither the Company nor any of the Subsidiaries has
received any notification asserting, or has knowledge of, any present or past
failure to comply with or violation of any such Laws.

                  (ff) Any statistical and market-related data included in the
Registration Statement and the Prospectus are based on or derived from sources
that the Company believes to be



                                       9


reliable and accurate, and the Company has obtained the written consent to the
use of such data from such sources to the extent required.

                  (gg) The information contained in the Registration Statement
and the Prospectus regarding the Company's expectations, plans and intentions,
and any other information that constitutes "forward-looking" information within
the meaning of the Securities Act and the Exchange Act were made by the Company
on a reasonable basis and reflect the Company's good faith belief and/or
estimate of the matters described therein.

                  (hh) Any certificate signed by any officer of the Company and
delivered to the Representatives or counsel for the Underwriters in connection
with the offering of the Shares contemplated hereby shall be deemed a
representation and warranty by the Company to each Underwriter and shall be
deemed to be a part of this Section 1 and incorporated herein by this reference.

                  (ii) The Company has established and maintains disclosure
controls and procedures (as such term is defined in Rules 13a-14 and 15d-14
under the Exchange Act) which (i) are designed to ensure that material
information relating to the Company, including its Subsidiaries, is made known
to the Company's principal executive officer and its principal accounting
officer by others within those entities, particularly within the periods in
which the periodic reports of the Company required under the Exchange Act are
being prepared; (ii) have been evaluated for effectiveness as of the end of the
most recent fiscal quarter; and (iii) are effective in all material respects to
perform the functions for which they were established.

                  (jj) Based on the evaluation of its internal control over
financial reporting, the Company is not aware of (i) any significant deficiency
or weakness in the design or operation of internal control over financial
reporting which are reasonably likely to adversely effect the Company's ability
to record, process, summarize and report financial information; or (ii) any
fraud, whether or not material, that involves management or other employees who
have a significant role in the Company's internal control over financial
reporting.

                  (kk) There are no material off-balance sheet arrangements (as
defined in Regulation S-K Item 303(a)(4)(ii)) that may have a material current
or future effect on the Company's financial condition, results of operations,
liquidity, capital expenditures or capital resources.

                  (ll) The Company's board of directors has validly appointed an
audit committee whose composition satisfies the requirements of Rule 4350(d)(2)
of the Rules of the NASD (the "NASD Rules") and the board of directors and/or
audit committee has adopted a charter that satisfies the requirements of Rule
4350(d)(1) of the NASD Rules. The audit committee has reviewed the adequacy of
its charter within the past twelve months.

                  (mm) No relationship, direct or indirect, exists between or
among the Company on the one hand, and the directors, officers, stockholders,
customers or suppliers of the Company on



                                       10


the other hand, which is required to be described in the Prospectus and which is
not so described. The Company has not, directly or indirectly, including through
any Subsidiary, extended or maintained credit, or arranged for the extension of
credit, or renewed any extension of credit, in the form of a personal loan to or
for any of its directors or executive officers in violation of the
Sarbanes-Oxley Act of 2002 the ("Sarbanes-Oxley Act").

                  (nn) The Company is in compliance with all presently
applicable provisions of the Sarbanes-Oxley Act and is actively taking steps to
ensure that it will be in compliance with other applicable provisions of the
Sarbanes-Oxley Act upon the effectiveness of such provisions.

         1.B. REPRESENTATIONS AND WARRANTIES OF THE PRINCIPAL STOCKHOLDERS.
Morris Sutton, Jesse Sutton, Joseph Sutton and Adam Sutton (the "Suttons",
collectively, the "Principal Stockholders"), jointly and severally, represent
and warrant to each of the Underwriters as follows:

                  (a) The Principal Stockholders have no reason to believe that
the representations and warranties of the Company set forth in Section 1.A(b)
hereof are not true and correct.

                  (b) This Agreement has been duly authorized, executed and
delivered by the Principal Stockholders, and constitutes a valid, legal, and
binding obligation of the Principal Stockholders, enforceable in accordance with
its terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting the rights of creditors
generally, and subject to general principles of equity. The Principal
Stockholders have full power and authority to enter into this Agreement.

         2. REPRESENTATIONS AND WARRANTIES OF THE SELLING STOCKHOLDERS AND
PRINCIPAL STOCKHOLDERS.

                  Each of the Selling Stockholders, and the Principal
Stockholders with respect to the Option Shares to be sold by the Principal
Stockholders on the Option Closing Date, if any, severally and not jointly
represents and warrants to each of the Underwriters solely as to itself that:

                  (a) Such Selling Stockholder or Principal Stockholder has, and
on the Closing Date, and, with respect to the Principal Stockholder, the Option
Closing Date, if any, will have good and marketable title to the Firm Shares,
and with respect to the Principal Stockholder, the Option Shares, to be sold by
such Selling Stockholder or Principal Stockholder, free and clear of any liens,
encumbrances, equities and claims (except for encumbrances arising under (i)
this Agreement; (ii) the Custody Agreement signed by such Selling Stockholder or
Principal Stockholder and American Stock Transfer & Trust Company, as custodian
(the "Custodian") (the "Custody Agreement" and, together with all other similar
agreements executed by the other Selling Stockholders and Principal
Stockholders, the "Custody Agreements"); and (iii) the Power of Attorney
relating to the transactions contemplated hereby and by the Registration
Statements (the "Power of Attorney" and, together with all other similar
agreements executed by the other Selling Stockholders and Principal
Stockholders, the "Powers of Attorney")); such Selling Stockholder or Principal
Stockholder has the legal right, power and authority to enter into this
Agreement and



                                       11


the Custody Agreement and the Power of Attorney signed by such Selling
Stockholder or Principal Stockholder and to sell, transfer and deliver the Firm
Shares or Option Shares to be sold by such Selling Stockholder or Principal
Stockholder, respectively.

                  (b) Such Selling Stockholder or Principal Stockholder has
placed, or has caused its attorney in fact to place, in custody under the
Custody Agreement for delivery under this Agreement certificates in negotiable
form, and/or a warrant together with a notice of exercise for the warrant,
representing or convertible into or exercisable for the Shares to be sold by the
Selling Stockholder or Principal Stockholder hereunder.

                  (c) Such Selling Stockholder or Principal Stockholder has duly
and irrevocably executed and delivered the Power of Attorney appointing Jan E.
Chason and Adam S. Sultan, and one or more other persons, as attorneys-in-fact,
with full power of substitution, and with full authority (exercisable by any one
or more of them) to execute and deliver this Agreement and to take such other
actions as set forth therein to effect the sale of the Shares to be sold by such
Selling Stockholder or Principal Stockholder pursuant to the Registration
Statement.

                  (d) The Custody Agreement and the Power of Attorney signed by
such Selling Stockholder or Principal Stockholder have been duly authorized,
executed and delivered by such Selling Stockholder or Principal Stockholder and
are valid and binding agreements of such Selling Stockholder or Principal
Stockholder, enforceable against such Selling Stockholder or Principal
Stockholder in accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, receivership, moratorium or
other laws affecting creditors' rights (including, without limitation, the
effect of statutory and other law regarding fraudulent conveyances, fraudulent
transfers and preferential transfers), and subject to general principles of
equity.

                  (e) Upon delivery to the Underwriters of certificates
representing the Firm Shares to be sold by such Selling Stockholder or Option
Shares to be sold by such Principal Stockholder, each endorsed to the
Underwriters or in blank, by an effective endorsement and payable therefore by
the Underwriters pursuant to this Agreement, the Underwriters will, assuming the
Underwriters do not have notice of any adverse claims thereof, acquire the
Shares to be sold by the Selling Stockholder or Principal Stockholder free and
clear of adverse claims, as defined in Section 8-102 of the New York Uniform
Commercial Code (the "UCC").

                  (f) The execution and delivery by such Selling Stockholder or
Principal Stockholder of, and the performance of such Selling Stockholder or
Principal Stockholder of its obligations under, this Agreement and the Power of
Attorney and the Custody Agreement signed by such Selling Stockholder or
Principal Stockholder will not contravene (i) any provision of applicable law
applicable to the Selling Stockholder or Principal Stockholder, as the case may
be, or (ii) the organizational documents of such Selling Stockholder or
Principal Stockholder (if such Selling Stockholder or Principal Stockholder is
other than a natural person), or (iii) any agreement or other instrument binding
upon such Selling Stockholder or Principal Stockholder or any judgment, order or
decree of any governmental body, agency or court having jurisdiction over



                                       12


such Selling Stockholder or Principal Stockholder, except in the case of clauses
(i) or (iii) for such contraventions as would not have an adverse effect on the
transactions contemplated by this Agreement or the Underwriters in connection
with this Agreement, and no consent, approval, authorization, or order of, or
qualification with, any governmental body or agency is required for the
performance by such Selling Stockholder or Principal Stockholder of its
obligations under this Agreement or the Custody Agreement or Power of Attorney
signed by such Selling Stockholder or Principal Stockholder, except such as may
be required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Shares.

                  (g) Such Selling Stockholder or Principal Stockholder has not
taken and will not take, directly or indirectly, any action designed to, or
which has constituted, or which might reasonably be expected to cause or result
in the stabilization or manipulation of the price of the Common Stock of the
Company in violation of applicable law and, other than as permitted by the Act,
the Selling Stockholder or Principal Stockholder will not distribute any
prospectus or other offering material in connection with the offering of the
Shares.

                  (h) The information pertaining to such Selling Stockholder
(name, number of shares and the related footnotes to the table insofar as such
information relates to such Selling Stockholder) and contained in the Prospectus
under the caption "Selling Stockholder" is the only information furnished in
writing by such Selling Stockholder for use in the Prospectus and such
information is complete and accurate in all material respects.

           3.     PURCHASE, SALE AND DELIVERY OF THE FIRM SHARES.

                  (a) On the basis of the representations, warranties and
covenants herein contained, and subject to the conditions herein set forth, the
Company and the Selling Stockholders (collectively, the "Sellers") agree to sell
to the Underwriters and each Underwriter agrees, severally and not jointly, to
purchase, at a price of $_____ [net price] per share, the number of Firm Shares
set forth opposite the name of each Underwriter in Schedule I hereof, subject to
adjustments in accordance with Section 11 hereof. The number of Firm Shares to
be purchased by each Underwriter from each Seller shall be as nearly as
practicable in the same proportion to the total number of Firm Shares being sold
by each Seller as the number of Firm Shares being purchased by each Underwriter
bears to the total number of Firm Shares to be sold hereunder. The obligations
of the Company and of each of the Selling Stockholders shall be several and not
joint.

                  (b) Certificates in negotiable form, and/or a warrant together
with a notice of exercise for the warrant representing or convertible into or
exercisable for the total number of the Shares to be sold hereunder by the
Selling Stockholders or Principal Stockholders have been placed in custody with
the Custodian pursuant to the Custody Agreement executed by each Selling
Stockholder and Principal Stockholder for delivery of all Firm Shares and any
Option Shares to be sold hereunder by the Selling Stockholders and Principal
Stockholders, respectively. The Shares to be sold by the Selling Stockholders
and Principal Stockholders are subject to the Powers of Attorney and the Custody
Agreements and the interests of the several Underwriters under this Agreement,
and the obligations and authorizations of the Selling Stockholders and



                                       13


Principal Stockholders are irrevocable and shall not be terminated by any act of
the Selling Stockholders or Principal Stockholders (except as set forth in the
Custody Agreements and Powers of Attorney) or by operation of law, whether by
the death, disability, incapacity, liquidation or dissolution of a Selling
Stockholder or Principal Stockholder or by the occurrence of any other event or
events (including without limitation the termination of any trust or estate for
which a Selling Stockholder or Principal Stockholder is acting as a fiduciary or
fiduciaries), and if after the execution hereof a Selling Stockholder or
Principal Stockholder shall die or become disabled or incapacitated or is
liquidated or dissolved, or if any other event or events shall occur before the
delivery of such Shares hereunder to the Representatives the Shares shall be
delivered to the Representatives in accordance with the terms and conditions of
the Custody Agreements, as if such event had not occurred, regardless of whether
or not the Custodian shall have received notice of such event.

                  (c) Payment for the Firm Shares to be sold hereunder is to be
made in Federal (same day) funds to an account designated by the Company for the
shares to be sold by it and to an account designated by the Custodian for the
shares to be sold by the Selling Stockholders, in each case against delivery of
certificates therefor to the Representatives for the several accounts of the
Underwriters. Such payment and delivery are to be made through the facilities of
The Depository Trust Company ("DTC") at 10:00 a.m., New York time, on the third
business day after the date of this Agreement or at such other time and date not
later than five business days thereafter as you and the Company shall agree
upon, such time and date being herein referred to as the "Closing Date." (As
used herein, "business day" means a day on which the New York Stock Exchange is
open for trading and on which banks in New York are open for business and not
permitted by law or executive order to be closed.)

                  (d) In addition, on the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company and the Principal Stockholders hereby grant an option to the
several Underwriters to purchase the Option Shares at the price per share as set
forth in the first paragraph of this Section. The option granted hereby may be
exercised in whole or in part by giving written notice (i) at any time before
the Closing Date and (ii) only once thereafter within 30 days after the date of
this Agreement, by you, as the Representatives of the several Underwriters, to
the Company, the Attorney-in-Fact, and the Custodian setting forth the number of
Option Shares as to which the several Underwriters are exercising the option,
the names and denominations in which the Option Shares are to be registered and
the time and date at which such certificates are to be delivered. The maximum
number of Option Shares to be sold by the Company shall be 540,000 shares, and
the maximum number of Option Shares to be sold by the Principal Stockholders, in
the aggregate, shall be 360,000, with the maximum number to be sold per
Principal Stockholder set forth on Schedule II hereto. If the option granted
hereby is exercised in part, the respective number of Option Shares to be sold
by the Company and each of the Selling Stockholders shall be reduced pro rata,
adjusted by you in such manner as to avoid fractional shares. The time and date
at which certificates for Option Shares are to be delivered shall be determined
by the Representatives but shall not be earlier than three nor later than 10
full business days after the exercise of such option, nor in any event prior to
the Closing Date (such time and date being herein referred to as the "Option
Closing Date"). If the date



                                       14


of exercise of the option is three or more days before the Closing Date, the
notice of exercise shall set the Closing Date as the Option Closing Date. The
number of Option Shares to be purchased by each Underwriter shall be in the same
proportion to the total number of Option Shares being purchased as the number of
Firm Shares being purchased by such Underwriter bears to the total number of
Firm Shares, adjusted by you in such manner as to avoid fractional shares. The
option with respect to the Option Shares granted hereunder may be exercised only
to cover over-allotments in the sale of the Firm Shares by the Underwriters.
You, as the Representatives of the several Underwriters, may cancel such option
at any time prior to its expiration by giving written notice of such
cancellation to the Company and the Attorney-in-Fact. To the extent, if any,
that the option is exercised, payment for the Option Shares shall be made on the
Option Closing Date in Federal (same day) funds drawn to the order of the
Company for the Option Shares to be sold by it and to the order of "American
Stock Transfer & Trust Company, as Custodian" for the Option Shares to be sold
by the Principal Stockholders against delivery of certificates therefor through
the facilities of the Depository Trust Company, New York, New York.

                  (e) If on the Closing Date or Option Closing Date, if any, any
Selling Stockholder or Principal Stockholder, respectively, fails to sell the
Firm Shares or Option Shares which such Selling Stockholder or Principal
Stockholder, respectively, has agreed to sell on such date as set forth in
Schedule II hereto, the Company agrees that it will sell or arrange for the sale
of that number of shares of Common Stock to the Underwriters which represents
Firm Shares or the Option Shares which such Selling Stockholder or Principal
Stockholder, respectively, has failed to so sell, as set forth in Schedule II
hereto, or such lesser number as may be requested by the Representatives.

              4. OFFERING BY THE UNDERWRITERS.

                  It is understood that the several Underwriters are to make a
public offering of the Firm Shares as soon as the Representatives deem it
advisable to do so. The Firm Shares are to be initially offered to the public at
the initial public offering price set forth in the Prospectus. The
Representatives may from time to time thereafter change the public offering
price and other selling terms. To the extent, if at all, that any Option Shares
are purchased pursuant to Section 3 hereof, the Underwriters will offer them to
the public on the foregoing terms.

                  It is further understood that you will act as the
Representatives for the Underwriters in the offering and sale of the Shares in
accordance with a Master Agreement Among Underwriters entered into by you and
the several other Underwriters.

              5. COVENANTS OF THE COMPANY.

                  The Company covenants and agrees with the several Underwriters
that:

                  (a) The Company will (i) use its best efforts to cause the
Registration Statement to become effective or, if the procedure in Rule 430A of
the Rules and Regulations is followed, to prepare and timely file with the
Commission under Rule 424(b) of the Rules and Regulations a



                                       15


Prospectus in a form approved by the Representatives containing information
previously omitted at the time of effectiveness of the Registration Statement in
reliance on Rule 430A of the Rules and Regulations; (ii) not file any amendment
to the Registration Statement or supplement to the Prospectus of which the
Representatives shall not previously have been advised and furnished with a copy
or to which the Representatives shall have reasonably objected in writing or
which is not in compliance with the Rules and Regulations; and (iii) file on a
timely basis all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission subsequent to the date
of the Prospectus and prior to the termination of the offering of the Shares by
the Underwriters.

                  (b) The Company will not take, directly or indirectly, any
action designed to cause or result in, or that has constituted or might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any securities of the Company.

                  (c) The Company will advise the Representatives promptly (i)
when the Registration Statement or any post-effective amendment thereto shall
have become effective; (ii) of receipt of any comments from the Commission;
(iii) of any request of the Commission for amendment of the Registration
Statement or for supplement to the Prospectus or for any additional information;
and (iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the use of the Prospectus or of
the institution of any proceedings for that purpose. The Company will use its
best efforts to prevent the issuance of any such stop order preventing or
suspending the use of the Prospectus and to obtain as soon as possible the
lifting thereof, if issued.

                  (d) The Company will cooperate with the Representatives in
endeavoring to qualify the Shares for sale under the securities laws of such
jurisdictions as the Representatives may reasonably have designated in writing
and will make such applications, file such documents, and furnish such
information as may be reasonably required for that purpose, provided the Company
shall not be required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction where it is not now so
qualified or required to file such a consent. The Company will, from time to
time, prepare and file such statements, reports, and other documents, as are or
may be required to continue such qualifications in effect for so long a period
as the Representatives may reasonably request for distribution of the Shares.

                  (e) The Company will deliver to, or upon the order of, the
Representatives, from time to time, as many copies of any Preliminary Prospectus
as the Representatives may reasonably request. The Company will deliver to, or
upon the order of, the Representatives during the period when delivery of a
Prospectus is required under the Act, as many copies of the Prospectus in final
form, or as thereafter amended or supplemented, as the Representatives may
reasonably request. The Company will deliver to the Representatives at or before
the Closing Date, four signed copies of the Registration Statement and all
amendments thereto including all exhibits filed therewith, and will deliver to
the Representatives such number of copies of the Registration Statement
(including such number of copies of the exhibits filed therewith that may
reasonably be requested) and of all amendments thereto, as the Representatives
may reasonably request.

                                       16


                  (f) The Company will comply with the Act and the Rules and
Regulations, and the Exchange Act, and the rules and regulations of the
Commission thereunder, so as to permit the completion of the distribution of the
Shares as contemplated in this Agreement and the Prospectus. If during the
period in which a prospectus is required by law to be delivered by an
Underwriter or dealer, any event shall occur as a result of which, in the
judgment of the Company or in the reasonable opinion of the Underwriters, it
becomes necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances existing at the time the
Prospectus is delivered to a purchaser, not misleading, or, if it is necessary
at any time to amend or supplement the Prospectus to comply with any law, the
Company promptly will prepare and file with the Commission an appropriate
amendment to the Registration Statement or supplement to the Prospectus so that
the Prospectus as so amended or supplemented will not, in the light of the
circumstances when it is so delivered, be misleading, or so that the Prospectus
will comply with the law.

                  (g) The Company will make generally available to its security
holders, as soon as it is practicable to do so, but in any event not later than
15 months after the effective date of the Registration Statement, an earning
statement (which need not be audited) in reasonable detail, covering a period of
at least 12 consecutive months beginning after the effective date of the
Registration Statement, which earning statement shall satisfy the requirements
of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will
advise you in writing when such statement has been so made available.

                  (h) Prior to the Closing Date, the Company will furnish to the
Underwriters, as soon as they have been prepared by or are available to the
Company, a copy of any unaudited interim financial statements of the Company for
any period subsequent to the period covered by the most recent financial
statements appearing in the Registration Statement and the Prospectus.

                  (i) No offering, sale, short sale or other disposition of any
shares of Common Stock of the Company or other securities convertible into or
exchangeable or exercisable for shares of Common Stock or derivative of Common
Stock (or agreement for such) will be made for a period of 180 days after the
date of this Agreement, directly or indirectly, by the Company otherwise than
hereunder or with the prior written consent of RBC Capital Markets Corporation;
provided, that this provision will not restrict the Company from awarding
options to purchase its Common Stock pursuant to employee benefit plans as
described in the Prospectus, or issuing Common Stock upon exercise or conversion
of securities outstanding on the date hereof and described in the Prospectus.

                  (j) The Company will use its best efforts to list, subject to
notice of issuance, the Shares on The Nasdaq Stock Market.

                  (k) [Intentionally Omitted.]

                                       17


                  (l) The Company shall apply the net proceeds of its sale of
the Shares as described under the heading "Use of Proceeds" in the Prospectus
and shall report with the Commission with respect to the sale of the Shares and
the application of the proceeds therefrom as may be required in accordance with
Rule 463 under the Act.

                  (m) The Company shall not invest, or otherwise use the
proceeds received by the Company from its sale of the Shares in such a manner as
would require the Company or any of the Subsidiaries to register as an
investment company under the 1940 Act.

                  (n) The Company will maintain a transfer agent and, if
necessary under the jurisdiction of incorporation of the Company, a registrar
for the Common Stock.

                  (o) If the Company elects to rely on Rule 462(b), the Company
shall file a Rule 462(b) Registration Statement with the Commission (including
the information required by Rule 430A under the Act) by 8:00 A.M., Washington,
D.C. time, on the date of this Agreement, and the Company shall at the time of
filing either pay to the Commission the filing fee for the Rule 462(b)
Registration Statement or give irrevocable instructions for the payment of such
fee pursuant to Rule 111(b) under the Act.

                  (p) Upon request of any Underwriter, the Company shall furnish
or cause to be furnished to such Underwriter an electronic version of the
Company's trademarks, service marks and corporate logo for use on the website,
if any, operated by such Underwriter for the purpose of facilitating the on-line
offering of the Shares (the "License"); provided, however, that the License
shall be used solely for the purpose described above, is granted without any
fee, and may not be assigned or transferred, is subject to the Company's
standard trademark usage guidelines and shall have a term of one year.

                  (q) The Company will furnish to the Company's shareholders as
soon as practicable after the end of each fiscal year and annual report
(including a consolidated balance sheet and statements of income, shareholders'
equity and cash flow of the Company and its Subsidiaries for such fiscal year,
accompanied by a copy of the certificate or report thereon of nationally
recognized independent certified public accountants).

                  (r) The Company will furnish to the Representatives promptly
and, upon request, to each of the other Underwriters for a period of three years
from the date of this Agreement (i) copies of any reports, proxy statements, or
other communications which the Company shall send to its shareholders or shall
from time to time publish or publicly disseminate, (ii) copies of all annual,
quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and
8-K, or such other similar forms as may be designated by the Commission, (iii)
copies of similar documents or reports filed with any national securities
exchange on which any class of securities of the Company is listed, and (iv)
such other information as the Representatives may reasonably request regarding
the Company or any of its Subsidiaries.

                                       18


                  (s) The Company shall maintain such controls and other
procedures, including, without limitation, those necessary to enable the
Company's Chief Executive Officer and Chief Financial Officer to make the
certifications required by Sections 302 and 906 of the Sarbanes Oxley Act and
the applicable regulations thereunder, that are designed to ensure that
information required to be disclosed by the Company in the reports that it files
or submits under the Exchange Act is recorded, processed, summarized and
reported within the time periods specified in the Commission's rules and forms,
including, without limitation, controls and procedures designed to ensure that
information required to be disclosed by the Company in the reports that it files
or submits under the Exchange Act is accumulated and communicated to the
Company's management, including its chief executive officer and chief financial
officer, or persons performing similar functions, as appropriate to allow timely
decisions regarding required disclosure and to ensure that material information
relating to the Company is made known to them by others within those entities,
particularly during the period in which such periodic reports are being
prepared.

               6. COVENANTS OF THE SELLING STOCKHOLDERS.

                  Each of the Selling Stockholders and Principal Stockholders,
severally and not jointly, covenants and agrees with the several Underwriters
that:

                  (a) it will not, (and will cause any spouse or immediate
family member of the spouse or the undersigned living in the undersigned's
household not to), without the prior written consent of RBC Capital Markets and
JMP Securities LLC (which consent may be withheld in their sole discretion),
directly or indirectly, sell, offer, contract or grant any option to sell
(including without limitation any short sale), pledge, transfer, establish an
open "put equivalent position" within the meaning of Rule 16a-1(h) under the
Securities Exchange Act of 1934, as amended, or otherwise dispose of any shares
of Common Stock, options or warrants to acquire shares of Common Stock, or
securities exchangeable or exercisable for or convertible into shares of Common
Stock currently or hereafter owned either of record or beneficially (as defined
in Rule 13d-3 under the Securities Exchange Act of 1934, as amended) by the
undersigned (or such spouse or family member), or publicly announce an intention
to do any of the foregoing, for a period commencing on the date hereof and
continuing through the close of trading on the date 90 days after the date of
the Prospectus, except pursuant to this Agreement. If (i) the Company issues an
earnings release or material news, or a material event relating to the Company
occurs, during the last 17 days of the lock-up period, or (ii) prior to the
expiration of the lock-up period, the Company announces that it will release
earnings results during the 16-day period beginning on the last day of the
lock-up period, the restrictions imposed by this agreement shall continue to
apply until the expiration of the 18-day period beginning on the issuance of the
earnings release or the occurrence of the material news or material event. Such
Selling Stockholder or Principal Stockholder also agrees and consents to the
entry of stop transfer instructions with the Company's transfer agent and
registrar against the transfer of shares of Common Stock or securities
convertible into or exchangeable or exercisable for Common Stock held by it
except in compliance with the foregoing restrictions.

                                       19


                  (b) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal Responsibility
Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with
respect to the transactions herein contemplated, such Selling Stockholder or
Principal Stockholder agrees to deliver to you prior to or at the Closing Date a
properly completed and executed United States Treasury Department Form W-8 or
W-9 (or other applicable form or statement specified by Treasury Department
regulations in lieu thereof).

                  (c) During the prospectus delivery period, such Selling
Stockholder or Principal Stockholder will not take, directly or indirectly, any
action designed to cause or result in, or that has constituted or might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any securities of the Company in violation of applicable law.

               7. COSTS AND EXPENSES.

                  The Company will pay all costs, expenses and fees incident to
the performance of the obligations of the Company, the Selling Stockholders and
the Principal Stockholders under this Agreement, including, without limiting the
generality of the foregoing, the following: accounting fees of the Company; the
fees and disbursements of counsel for the Company, the Selling Stockholders and
the Principal Stockholders; the cost of printing and delivering to, or as
requested by, the Underwriters copies of the Registration Statement, Preliminary
Prospectuses, the Prospectus, the Underwriters' Selling Memorandum and the
Underwriters' Invitation Letter, if any, the Listing Application, the Blue Sky
Survey and any supplements or amendments thereto; the filing fees of the
Commission; the filing fees and expenses (including legal fees and
disbursements) incident to securing any required review by the National
Association of Securities Dealers, Inc. (the "NASD") of the terms of the sale of
the Shares; the Listing Fee of The Nasdaq Stock Market; and the expenses,
including the reasonable fees and disbursements of counsel for the Underwriters
incurred in connection with the qualification of the Shares under State
securities or Blue Sky laws. The Company has agreed that neither the Selling
Stockholders nor the Principal Stockholders will be required to reimburse the
Company for any portion of such expenses. Any transfer taxes imposed on the sale
of the Shares to the several Underwriters will be paid by the Company and not
the Selling Stockholders or the Principal Stockholders.

                  The Company, the Selling Stockholders and the Principal
Stockholders shall not, however, be required to pay for any of the Underwriters
expenses (other than those related to qualification under NASD regulation and
State securities or Blue Sky laws) except that, if this Agreement shall not be
consummated because the conditions in Section 8 hereof are not satisfied, or
because this Agreement is terminated by the Representatives pursuant to Section
13 hereof, or by reason of any failure, refusal or inability on the part of the
Company, the Selling Stockholders or the Principal Stockholders to perform any
undertaking or satisfy any condition of this Agreement or to comply with any of
the terms hereof on its part to be performed, unless such failure to satisfy
said condition or to comply with said terms be due to the default or omission of
any Underwriter, then the Company shall reimburse the several Underwriters for
reasonable out-of-pocket expenses, including all fees and disbursements of
counsel, reasonably incurred in connection with investigating, marketing and
proposing to market the Shares or in contemplation of performing



                                       20


their obligations hereunder; but the Company, the Selling Stockholders and the
Principal Stockholders shall not in any event be liable to any of the several
Underwriters for damages on account of loss of anticipated profits from the sale
by them of the Shares.

               8. CONDITIONS OF OBLIGATIONS OF THE UNDERWRITERS.

                  The several obligations of the Underwriters to purchase the
Firm Shares on the Closing Date and the Option Shares, if any, on the Option
Closing Date are subject to the accuracy, as of the Closing Date and the Option
Closing Date, if any, of the representations and warranties of the Company, the
Principal Stockholders and the Selling Stockholders contained herein, and to the
performance by the Company, the Principal Stockholders and the Selling
Stockholders of their covenants and obligations hereunder and to the following
additional conditions:

                  (a) The Registration Statement and all post-effective
amendments thereto shall have become effective and any and all filings required
by Rule 424 and Rule 430A of the Rules and Regulations shall have been made, and
any request of the Commission for additional information (to be included in the
Registration Statement or otherwise) shall have been disclosed to the
Representatives and complied with to their reasonable satisfaction. No stop
order suspending the effectiveness of the Registration Statement, as amended
from time to time, shall have been issued and no proceedings for that purpose
shall have been taken or, to the knowledge of the Company, the Principal
Stockholders or the Selling Stockholders, shall be contemplated by the
Commission and no injunction, restraining order, or order of any nature by a
Federal or state court of competent jurisdiction shall have been issued as of
the Closing Date which would prevent the issuance of the Shares.

                  (b) The Representatives shall have received on the Closing
Date and the Option Closing Date, if any, the opinions of Mintz, Levin, Cohn,
Glovsky & Popeo LLP, counsel for the Principal Stockholders and the Company, and
its subsidiaries (the "Subsidiaries") (such opinion solely with respect to the
items below applicable to the Subsidiaries, each dated the Closing Date or the
Option Closing Date, if any, addressed to the Underwriters (and stating that it
may be relied upon by Wilson Sonsini Goodrich & Rosati, P.C., counsel for the
Underwriters) to the effect that:

                           (i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the State
of Delaware with corporate power and authority to own or lease its properties
and conduct its business as described in the Registration Statement; each of the
Subsidiaries has been duly incorporated and is validly existing as a corporation
in good standing under the laws of the jurisdiction of its incorporation, with
corporate power and authority to own or lease its properties and conduct its
business as described in the Registration Statement; the Company and each of the
Subsidiaries are duly qualified to transact business in all jurisdictions in
which the conduct of their business requires such qualification if the failure
to qualify would have a Material Adverse Effect upon the business of the Company
and the Subsidiaries taken as a whole; and the outstanding shares of capital
stock of each of the Subsidiaries have been duly authorized and validly issued
and, assuming payment in accordance with the minutes authorizing such issuance,
are fully paid and non-assessable and are owned by the



                                       21


Company or any of any of the Subsidiaries; and the outstanding shares of capital
stock of each of the Subsidiaries is owned, to the best of the knowledge of such
counsel, free and clear of all liens, encumbrances and equities and claims, and
to the best of the knowledge of such counsel, no options, warrants or other
rights to purchase, agreements or other obligations to issue or other rights to
convert any obligations into any shares of capital stock or of ownership
interests in the Subsidiaries are outstanding.

                           (ii) The Company has authorized and, to the best of
the knowledge of such counsel, outstanding, capital stock as set forth under the
caption "Capitalization" in the Prospectus; the authorized shares of the
Company's Common Stock have been duly authorized; the outstanding shares of the
Company's Common Stock, including the Shares to be sold by the Selling
Stockholders, have been duly authorized and validly issued and, assuming payment
in accordance with the minutes authorizing such issuance, are fully paid and
non-assessable; all of the Shares conform to the description thereof contained
in the Prospectus; the certificates for the Shares, assuming they are in the
form filed with the Commission, are in due and proper form; the shares of Common
Stock, including the Option Shares, if any, to be sold by the Company pursuant
to this Agreement have been duly authorized and will be validly issued, fully
paid and non-assessable when issued and paid for as contemplated by this
Agreement; and no preemptive rights of shareholders exist with respect to any of
the Shares or the issue or sale thereof.

                           (iii) Except as described in or contemplated by the
Prospectus, to the best of the knowledge of such counsel, there are no
outstanding securities of the Company convertible or exchangeable into or
evidencing the right to purchase or subscribe for any shares of capital stock of
the Company and there are no outstanding or authorized options, warrants or
rights of any character obligating the Company to issue any shares of its
capital stock or any securities convertible or exchangeable into or evidencing
the right to purchase or subscribe for any shares of such stock; and except as
described in the Prospectus, to the knowledge of such counsel, no holder of any
securities of the Company or any other person has the right, contractual or
otherwise, which has not been satisfied or effectively waived, to cause the
Company to sell or otherwise issue to them, or to permit them to underwrite the
sale of, any of the Shares or the right to have any Common Shares or other
securities of the Company included in the Registration Statement or the right,
as a result of the filing of the Registration Statement, to require registration
under the Act of any shares of Common Stock or other securities of the Company.

                           (iv) The Registration Statement has become effective
under the Act and, to the best of the knowledge of such counsel, no stop order
proceedings with respect thereto have been instituted or are pending or
threatened under the Act.

                           (v) The Registration Statement, the Prospectus and
each amendment or supplement thereto comply as to form in all material respects
with the requirements of the Act and the applicable rules and regulations
thereunder (except that such counsel need express no opinion as to the financial
statements and related schedules therein).



                                       22


                           (vi) The statements under the captions "Related Party
Transactions," "Description of Capital Stock" and "Shares Eligible for Future
Sale" in the Prospectus, insofar as such statements constitute a summary of
documents referred to therein or matters of law, fairly summarize in all
material respects the information called for with respect to such documents and
matters.

                           (vii) Such counsel does not know of any contracts or
documents required to be filed as exhibits to the Registration Statement or
described in the Registration Statement or the Prospectus which are not so filed
or described as required, and such contracts and documents as are summarized in
the Registration Statement or the Prospectus are fairly summarized in all
material respects.

                           (viii) Such counsel knows of no material legal or
governmental proceedings pending or threatened against the Company or any of the
Subsidiaries except as set forth in the Prospectus.

                           (ix) The execution and delivery of this Agreement and
the consummation of the transactions herein contemplated do not and will not
conflict with or result in a breach of any of the terms or provisions of, or
constitute a default (or an event that with notice or lapse of time or both
would constitute a default) under, or result in the creation or imposition of
any lien, charge, or encumbrance on any properties or assets of the Company or
any of the Subsidiaries under or pursuant to, any agreement or instrument known
to such counsel to which the Company or any of the Subsidiaries is a party or by
which the Company or any of the Subsidiaries may be bound, nor will such action
violate or conflict with the provisions of the Charter or By-Laws of the Company
or any state or federal statute or any order, rule or regulation known to us to
be customarily applicable to transactions of the nature contemplated by this
Agreement, or any decree known to us of any court or any governmental agency or
body having jurisdiction over the Company or the Subsidiaries or any of their
respective properties or assets. To the best of the knowledge of such counsel,
the Company is not (i) in material violation of its Charter or By-Laws or (ii)
in breach of any material obligation or agreement that is described or referred
to in, or filed as part of, the Registration Statement or Prospectus.

                           (x) The Company has all requisite corporate power and
authority to enter into this Agreement, to issue the Shares and to perform its
obligations hereunder. All necessary board of directors and stockholder action
has been duly and validly taken by the Company and its stockholders to authorize
the execution, delivery and performance of this Agreement and the issuance of
the Shares. This Agreement has been duly authorized, executed and delivered by
the Company, and is a valid and binding agreement of the Company, enforceable in
accordance with its terms, except insofar as indemnification provisions may be
limited by applicable law and except as enforceability may be limited by
bankruptcy, insolvency, or similar laws affecting creditors' rights generally or
by equitable principles of general applicability.

                           (xi) No approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory, administrative or
other governmental body is necessary in



                                       23


connection with the execution and delivery of this Agreement and the
consummation of the transactions herein contemplated (other than as may be
required by the NASD or as required by State securities and Blue Sky laws as to
which such counsel need express no opinion) except such as have been obtained or
made, specifying the same.

                           (xii) The Company is not, and will not become, as a
result of the consummation of the transactions contemplated by this Agreement,
and application of the net proceeds therefrom as described in the Prospectus,
required to register as an investment company under the 1940 Act.

                           (xiii) This Agreement has been duly authorized,
executed and delivered on behalf of the Principal Stockholders.

                           (xiv) The execution, delivery and performance of this
Agreement by each Principal Stockholder, compliance by such Principal
Stockholder with all the provisions hereof and the consummation of the
transactions contemplated hereby will not contravene or conflict with, result in
a breach or violation of, or constitute a default under, the charter, by-laws,
certificate of formation, partnership agreement, limited liability agreement,
trust agreement or other organizational documents, as the case may be, of such
Principal Stockholder, if not a natural person, and will not violate, contravene
or conflict with any provision of applicable law or regulation, statute,
administrative regulation or ruling known by such counsel to be applicable to
such Principal Stockholder.

                  In rendering such opinion, Mintz, Levin, Cohn, Glovsky & Popeo
LLP may rely as to matters governed by the laws of states other than New York or
Federal laws or Delaware corporate law, on local counsel in such jurisdictions,
provided that in each case Mintz, Levin, Cohn, Glovsky & Popeo LLP shall state
that they believe that they and the Underwriters are justified in relying on
such other counsel. If and to the extent the opinion is qualified as to
knowledge, such qualification shall be as to the knowledge of Mintz, Levin,
Cohn, Glovsky & Popeo, LLP as a whole, and shall not be limited to the knowledge
of specific attorneys thereof. In addition to the matters set forth above, such
opinion shall also include a statement to the effect that nothing has come to
the attention of such counsel which leads them to believe that (i) the
Registration Statement, at the time it became effective under the Act (but after
giving effect to any modifications incorporated therein pursuant to Rule 430A
under the Act) and as of the Closing Date or the Option Closing Date, if any,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and (ii) the Prospectus, or any supplement thereto, on the date
it was filed pursuant to the Rules and Regulations and as of the Closing Date or
the Option Closing Date, if any, contained an untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements, in the light of the circumstances under which they are made, not
misleading (except that such counsel need express no view as to financial
statements and related schedules therein). With respect to such statement,
Mintz, Levin, Cohn, Glovsky & Popeo LLP may state that their belief is based
upon the procedures set forth therein, but is without independent check and
verification.

                                       24


                  (c) The Representatives shall have received from Wilson
Sonsini Goodrich & Rosati, P.C., counsel for the Underwriters, an opinion dated
the Closing Date and the Option Closing Date, if any, with respect to the
formation of the Company, the validity of the Shares and other related matters
as the Representatives reasonably may request, and such counsel shall have
received such papers and information as they request to enable them to pass upon
such matters.

                  (d) The Representatives shall have received at or prior to the
Closing Date from Wilson Sonsini Goodrich & Rosati, P.C. a memorandum or
summary, in form and substance satisfactory to the Representatives, with respect
to the qualification for offering and sale by the Underwriters of the Shares
under the State securities or Blue Sky laws of such jurisdictions as the
Representatives may reasonably have designated to the Company.

                  (e) You shall have received, on each of the dates hereof, the
Closing Date and the Option Closing Date, if any, a letter dated the date
hereof, the Closing Date or the Option Closing Date, if any, in form and
substance satisfactory to you, of Goldstein Golub Kessler, LLP confirming that
they are independent public accountants within the meaning of the Act and the
applicable published Rules and Regulations thereunder and stating that in their
opinion the financial statements and schedules examined by them and included in
the Registration Statement comply in form in all material respects with the
applicable accounting requirements of the Act and the related published Rules
and Regulations; and containing such other statements and information as is
ordinarily included in accountants' "comfort letters" to Underwriters with
respect to the financial statements and certain financial and statistical
information contained in the Registration Statement and the Prospectus.

                  (f) The Representatives shall have received on the Closing
Date and the Option Closing Date, if any, a certificate or certificates of the
Company's Chief Executive Officer and Chief Financial Officer to the effect
that, as of the Closing Date or the Option Closing Date, if any, each of them
severally represents as follows:

                           (i) The Registration Statement has become effective
under the Act and no stop order suspending the effectiveness of the
Registrations Statement has been issued, and no proceedings for such purpose
have been taken or are, to his knowledge, contemplated by the Commission;

                           (ii) The representations and warranties of the
Company contained in Section 1 hereof are true and correct as of the Closing
Date or the Option Closing Date, if any;

                           (iii) All filings required to have been made pursuant
to Rules 424 or 430A under the Act have been made;

                           (iv) They have carefully examined the Registration
Statement and the Prospectus and, in their opinion, as of the effective date of
the Registration Statement, the statements contained in the Registration
Statement were true and correct, and such Registration



                                       25


Statement and Prospectus did not omit to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading, and since the effective date of the Registration Statement, no event
has occurred which should have been set forth in a supplement to or an amendment
of the Prospectus which has not been so set forth in such supplement or
amendment; and

                           (v) Since the respective dates as of which
information is given in the Registration Statement and the Prospectus, there has
not been any material adverse change or any development involving a prospective
change, which has had or is reasonably likely to have a Material Adverse Effect,
whether or not arising in the ordinary course of business.

                  (g) The Company and the Selling Stockholders shall have
furnished to the Representatives such further certificates and documents
confirming the representations and warranties, covenants and conditions
contained herein and related matters as the Representatives may reasonably have
requested.

                  (h) The Firm Shares and Option Shares, if any, have been
approved for designation upon notice of issuance on The Nasdaq Stock Market.

                  (i) Each officer and director of the Company, and each Selling
Stockholder and Principal Stockholder has furnished to you a letter or letters,
in form and substance satisfactory to the Underwriters, pursuant to which each
such person shall agree not to offer, sell, sell short or otherwise dispose of
any shares of Common Stock of the Company or other capital stock of the Company,
or any other securities convertible, exchangeable or exercisable for Common
Shares or derivative of Common Shares owned by such person or request the
registration for the offer or sale of any of the foregoing (or as to which such
person has the right to direct the disposition of) for a period of 90 days after
the date of this Agreement (subject to certain extensions contained therein),
directly or indirectly, except with the prior written consent of RBC Capital
Markets Corporation and JMP Securities, LLC ("Lockup Agreements").

                  (j) The Representatives shall have received on the Closing
Date an opinion of O'Melveny & Myers LLP with respect to the Selling
Stockholders, dated the Closing Date, and the Representatives shall have
received on the Option Closing Date, if any, an opinion of Mintz, Levin, Cohn,
Glovsky & Popeo LLP with respect to the Principal Stockholders, to the effect
that:

                           (i) This Agreement has been duly executed and
delivered by the Selling Stockholders or Principal Stockholders, as the case may
be;

                           (ii) The execution and delivery by the Selling
Stockholders or Principal Stockholders, as the case may be, of the Agreement,
the Custody Agreement and the Powers of Attorney do not, and the Selling
Stockholders' or Principal Stockholders' performance of their obligations under
the Agreement, the Custody Agreement and the Powers of Attorney, as the case may
be, will not, (i) violate the Selling Stockholders' or Principal Stockholders'
organizational documents identified to us in a certificate, or (ii) breach or
otherwise violate any existing obligation



                                       26


of or restriction on the Selling Stockholders Principal Stockholders under any
order, judgment or decree of any federal court or governmental authority binding
on the Selling Stockholders or Principal Stockholders as identified in the
certificate;

                           (iii) The Custody Agreement and Power of Attorney
have been duly executed and delivered by the Selling Stockholders or Principal
Stockholders, as the case may be;

                           (iv) Upon delivery to the Underwriters of the
certificates evidencing the Firm Shares (with respect to the Selling
Stockholders) or Option Shares (with respect to the Principal Stockholders)
endorsed to the Underwriters or in blank and payment therefore by the
Underwriters in accordance with the Underwriting Agreement, assuming the
Underwriters are acquiring the Shares without notice of any adverse claim and
the endorsement is effective, the Underwriters will acquire the Firm Shares
(with respect to the Selling Stockholders) or Option Shares (with respect to the
Principal Stockholders) free and clear of any adverse claim as defined in
Division 8 of the UCC.

                  In rendering the opinion in Section (j) above, such counsel
may rely upon a certificate of the Selling Stockholder or Principal Stockholder,
as the case may be, in respect of matters of fact; provided that such counsel
shall furnish copies thereof to the Representatives and state that they believe
that both the Underwriters and they are justified in relying upon such
certificate.

                  The opinions and certificates mentioned in this Agreement
shall be deemed to be in compliance with the provisions hereof only if they are
in all material respects satisfactory to the Representatives and to Wilson
Sonsini Goodrich & Rosati, P.C., counsel for the Underwriters.

                  If any of the conditions hereinabove provided for in this
Section shall not have been fulfilled when and as required by this Agreement to
be fulfilled, the obligations of the Underwriters hereunder may be terminated by
the Representatives.

                  In such event, the Company, the Principal Stockholders and the
Selling Stockholders and the Underwriters shall not be under any obligation to
each other (except to the extent provided in Sections 7 and 10 hereof).

               9. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY, THE PRINCIPAL
STOCKHOLDERS AND THE SELLING STOCKHOLDERS.

                  The obligations of the Company, the Principal Stockholders and
the Selling Stockholders to sell and deliver the portion of the Shares required
to be delivered as and when specified in this Agreement are subject to the
conditions that at the Closing Date or the Option Closing Date, if any, as
applicable, no stop order suspending the effectiveness of the Registration
Statement shall have been issued and in effect or proceedings therefor initiated
or threatened.

                                       27


              10. INDEMNIFICATION.

                  (a) The Company agrees:

                           (i) to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of the
Act, against any losses, claims, damages or liabilities to which such
Underwriter or any such controlling person may become subject under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto, (ii) 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 any act or failure to act, or (iii) any
alleged act or failure to act by any Underwriter in connection with, or relating
in any manner to, the Shares 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 matters covered by clause (i) or (ii) above
(provided, however, that the Company shall be liable under this clause (iii) to
the extent that it is determined in a final judgment by a court of competent
jurisdiction 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 gross negligence or willful misconduct);
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement, or omission or alleged
omission made in the Registration Statement, any Preliminary Prospectus, the
Prospectus, or such amendment or supplement, in reliance upon and in conformity
with written information furnished to the Company by or through the
Representatives specifically for use in the preparation thereof.

                           (ii) to reimburse each Underwriter and each such
controlling person upon demand for any legal or other out-of-pocket expenses
reasonably incurred by such Underwriter or such controlling person in connection
with investigating or defending any such loss, claim, damage or liability,
action or proceeding or in responding to a subpoena or governmental inquiry
related to the offering of the Shares, whether or not such Underwriter or
controlling person is a party to any action or proceeding. In the event that it
is finally judicially determined that the Underwriters were not entitled to
receive payments for legal and other expenses pursuant to this subparagraph, the
Underwriters will promptly return all sums that had been advanced pursuant
hereto.

                  (b) Each Underwriter severally and not jointly will indemnify
and hold harmless the Company, each of its directors, each of its officers who
have signed the Registration Statement, the Selling Stockholders, the Principal
Stockholders (in their capacity as sellers of Option Shares hereunder) and each
person, if any, who controls the Company, the Selling Stockholders or the
Principal Stockholders (in their capacity as sellers of Option Shares hereunder)
within the meaning of the Act, against any losses, claims, damages or
liabilities to which the Company or any such director, officer, Selling
Stockholder, Principal Stockholder (in its capacity as a seller of Option Shares
hereunder) or controlling person may become subject under the Act or otherwise,
insofar as



                                       28


such losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement, any Preliminary Prospectus, the Prospectus or any amendment or
supplement thereto, or (ii) the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances under which
they were made; and will reimburse any legal or other expenses reasonably
incurred by the Company or any such director, officer, Selling Stockholder,
Principal Stockholder (in its capacity as a seller of Option Shares hereunder)
or controlling person in connection with investigating or defending any such
loss, claim, damage, liability, action or proceeding; provided, however, that
each Underwriter will be liable in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission has been made in the Registration Statement, any Preliminary
Prospectus, the Prospectus or such amendment or supplement, in reliance upon and
in conformity with written information furnished to the Company by or through
the Representatives specifically for use in the preparation thereof.

                  (c) The Selling Stockholders and the Principal Stockholders
(in their capacity as sellers of Option Shares hereunder), severally and not
jointly, agree to indemnify each Underwriter and each person, if any, who
controls any Underwriter within the meaning of the Act, against any losses,
claims, damages or liabilities to which such Underwriter or controlling person
may become subject under the Act or otherwise to the same extent as indemnity is
provided by the Company pursuant to Section 10(a)(i) and (ii) above, but in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission has been made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or such
amendment or supplement, in reliance upon and in conformity with written
information furnished to the Company by or through the Selling Stockholder or
the Principal Stockholder (in its capacity as a seller of Option Shares
hereunder) against whom indemnification is sought specifically for use in the
preparation thereof. In no event, however, shall the liability of any Selling
Stockholder or Principal Stockholder (in its capacity as a seller of Option
Shares hereunder) for indemnification under this Section 10(a) exceed the net
proceeds actually received by such Selling Stockholder or Principal Stockholder
(in its capacity as a seller of Option Shares hereunder) from the Underwriters
in the offering. THIS INDEMNITY OBLIGATION WILL BE IN ADDITION TO ANY LIABILITY
THAT THE COMPANY OR ANY PRINCIPAL STOCKHOLDER MAY HAVE TO THE INDEMNIFIED
PARTIES (WHETHER PURSUANT TO, OR RESULTING FROM BREACHES OF, THIS AGREEMENT OR
OTHERWISE), AND THE FOREGOING LIMITATIONS, AS THEY RELATE TO THE PRINCIPAL
STOCKHOLDERS, SHALL ONLY APPLY TO THE INDEMNIFICATION ARISING PURSUANT TO THIS
SUBSECTION, AND SHALL NOT AFFECT THE PRINCIPAL STOCKHOLDERS' LIABILITY ARISING
OTHER THAN PURSUANT TO THIS SUBSECTION. The foregoing indemnity agreement shall
not inure to the benefit of any Underwriter from whom the person asserting any
such losses, claims, damages or liabilities purchased Firm Shares, or any person
controlling such Underwriter or affiliate of such Underwriter, if 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,
at or prior to the



                                       29


written confirmation of the sale of the Firm Shares to such person, and if the
Prospectus (as so amended and supplemented) would have cured the defect giving
rise to such losses, claims, damages or liabilities. For all purposes of this
Agreement, the information (name, number of shares and the related footnotes to
the table insofar as such information relates to the Selling Stockholder)
contained in the Prospectus under the caption "Selling Stockholder" is the only
information furnished in writing by a Selling Stockholder for use in the
Registration Statement, any Preliminary Prospectus, the Prospectus, or any
amendments or supplements thereto.

                  (d) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to this Section, such person (the "indemnified
party") shall promptly notify the person against whom such indemnity may be
sought (the "indemnifying party") in writing, but the omission so to notify the
indemnifying party shall not relieve it from any liability hereunder to the
extent it is not materially prejudiced as a proximate result of such failure and
in any event shall not relieve it from any liability which it may have otherwise
than on account of the provisions of Section 10(a) or (b) or (c). In case any
such proceeding shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party and
shall pay as incurred the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel at its own expense. Notwithstanding the foregoing, the
indemnifying party shall pay as incurred (or within 30 days of presentation) the
fees and expenses of the counsel retained by the indemnified party in the event
(i) the indemnifying party and the indemnified party shall have mutually agreed
to the retention of such counsel, (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them or
(iii) the indemnifying party shall have failed to assume the defense and employ
counsel acceptable to the indemnified party within a reasonable period of time
after notice of commencement of the action.

                           It is understood that the indemnifying party shall
not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one
separate firm for all such indemnified parties. Such firm shall be designated in
writing by you in the case of parties indemnified pursuant to Section 10(a), by
the Company and a majority in interest of the Selling Stockholders in the case
of parties indemnified pursuant to Section 10(b) and by you in the case of
parties indemnified pursuant to Section 10(c). The indemnifying party shall not
be liable for any settlement of any proceeding effected without its written
consent 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 from
and against any loss or liability by reason of such settlement or judgment. In
addition, the indemnifying party will not, without the prior written consent of
the indemnified party, settle or compromise or consent to the entry of any
judgment in any pending or threatened claim, action or proceeding of which
indemnification may be sought hereunder (whether or not any indemnified party is
an actual or potential party to such



                                       30


claim, action or proceeding) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action or proceeding.

                  (e) If the indemnification provided for in this Section is
unavailable to or insufficient to hold harmless an indemnified party under
Section 10(a) or (b) or (c) above in respect of any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) in such proportion as
is appropriate to reflect the relative benefits received by the Company, the
Principal Stockholders and the Selling Stockholders 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 the
Company, the Principal Stockholders and the Selling Stockholders 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 benefits received by the Company, the Principal
Stockholders and the Selling Stockholders on the one hand and the Underwriters
on the other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Company,
the Principal Stockholders and the Selling Stockholders bear to the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover page of the Prospectus. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company, the Principal Stockholders or the Selling Stockholders 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 OBLIGATIONS OF THE SELLING STOCKHOLDERS TO CONTRIBUTE PURSUANT TO
THIS SECTION 10 ARE SEVERAL AND NOT JOINT AND SHALL BE IN PROPORTION TO THE
RESPECTIVE NUMBER OF FIRM SHARES SOLD BY SUCH SELLING STOCKHOLDER UNDER THIS
AGREEMENT.

                      The Company, the Principal Stockholders, the Selling
Stockholders and the Underwriters agree that it would not be just and equitable
if contributions pursuant to this Subsection 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 that does not take account of the
equitable considerations referred to above in this Subsection. 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 Subsection shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Subsection, (i) no Underwriter shall be
required to contribute any amount in



                                       31


excess of the underwriting discounts and commissions applicable to the Shares
purchased by such Underwriter, (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, and (iii) no Selling Stockholder shall be required to
contribute any amount in excess of the net proceeds actually received by such
Selling Stockholder from the Underwriters in the offering. The Underwriters'
obligations in this Subsection to contribute are several in proportion to their
respective underwriting obligations and not joint.

                      Subject to the limitations set forth in Section 10(h), it
is agreed and understood that the Principal Stockholders and the Company shall
be jointly and severally liable under this Section 10(e).

                  (f) In any proceeding relating to the Registration Statement,
any Preliminary Prospectus, the Prospectus or any supplement or amendment
thereto, each party against whom contribution may be sought under this Section
hereby consents to the jurisdiction of any court having jurisdiction over any
other contributing party, agrees that process issuing from such court may be
served upon him or it by any other contributing party and consents to the
service of such process and agrees that any other contributing party may join
him or it as an additional defendant in any such proceeding in which such other
contributing party is a party.

                  (g) Any losses, claims, damages, liabilities or expenses for
which an indemnified party is entitled to indemnification or contribution under
this Section shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section and the
representations and warranties of the Company, the Selling Stockholders and the
Principal Stockholders 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, any Selling
Stockholder or any person controlling any Selling Stockholder, or 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.

                  (h) It is agreed and understood that any indemnification or
other claim for any losses, claims, damages, liabilities or expenses for which
the Company and the Principal Stockholders are or may be liable under this
Agreement shall first be sought against the Company, and the Principal
Stockholders shall only be liable for such claim if either (a) the Company
states in writing that it cannot satisfy such indemnification or other claim, or
(b) the Company does not satisfy such claim after the exercise of reasonable
efforts by the indemnified parties to recover such claim for at least 45 days.

                                       32


              11. DEFAULT BY UNDERWRITERS.

                  If on the Closing Date or the Option Closing Date, if any, any
Underwriter shall fail to purchase and pay for the portion of the Shares which
such Underwriter has agreed to purchase and pay for on such date (otherwise than
by reason of any default on the part of the Company, a Principal Stockholder or
a Selling Stockholder), you, as the Representatives of the Underwriters, shall
use your reasonable efforts to procure within 36 hours thereafter one or more of
the other Underwriters, or any others, to purchase from the Company, the
Principal Stockholders and the Selling Stockholders such amounts as may be
agreed upon and upon the terms set forth herein, the Firm Shares or Option
Shares, as the case may be, which the defaulting Underwriter or Underwriters
failed to purchase. If during such 36 hours you, as such Representatives, shall
not have procured such other Underwriters, or any others, to purchase the Firm
Shares or Option Shares, as the case may be, agreed to be purchased by the
defaulting Underwriter or Underwriters, then (a) if the aggregate number of
shares with respect to which such default shall occur does not exceed 10% of the
Firm Shares or Option Shares, as the case may be, covered hereby, the other
Underwriters shall be obligated, severally, in proportion to the respective
numbers of Firm Shares or Option Shares, as the case may be, which they are
obligated to purchase hereunder, to purchase the Firm Shares or Option Shares,
as the case may be, which such defaulting Underwriter or Underwriters failed to
purchase, or (b) if the aggregate number of shares of Firm Shares or Option
Shares, as the case may be, with respect to which such default shall occur
exceeds 10% of the Firm Shares or Option Shares, as the case may be, covered
hereby, the Company and the Selling Stockholders (on the Closing Date) or the
Company and the Principal Stockholders (on the Option Closing Date) or you as
the Representatives of the Underwriters will have the right to terminate this
Agreement without liability on the part of the non-defaulting Underwriters or of
the Company or of the Selling Stockholders or of the Principal Stockholders
except to the extent provided in Section 10 hereof. In the event of a default by
any Underwriter or Underwriters, as set forth in this Section, the Closing Date
or Option Closing Date, if any, may be postponed for such period, not exceeding
seven days, as you, as Representatives, may determine in order that the required
changes in the Registration Statement or in the Prospectus or in any other
documents or arrangements may be effected. The term "Underwriter" includes any
person substituted for a defaulting Underwriter. Any action taken under this
Section shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.

              12. NOTICES.

                  All communications hereunder shall be in writing and, except
as otherwise provided herein, will be mailed, delivered, or faxed and confirmed
as follows:

         if to the Underwriters, to      RBC Capital Markets Corporation
                                         c/o RBC Capital Markets
                                         One Liberty Plaza, 165 Broadway
                                         New York, NY  10006-1404
                                         Attention:  Joe Morea
                                                     Syndicate Director
                                         Fax: (212) 428-6260

                                       33


         if to the Company, the Principal Stockholders or
         the Selling Stockholders, to       Majesco Holdings, Inc.

                                            ___________________________

                                            ___________________________
                                            Attention:_________________
                                            Fax: (___) _________

         13.      TERMINATION.

                  (a) This Agreement may be terminated by you at any time prior
to the Closing Date if any of the following has occurred: (i) since the
respective dates as of which information is given in the Registration Statement
and the Prospectus, any material adverse change or any development involving a
prospective change, which (A) in the absolute discretion of any group of
Underwriters (which may include RBC Capital Markets Corporation) that has agreed
to purchase in the aggregate at least 50% of the Firm Shares, as long as RBC
Capital Markets Corporation does not affirmatively assert that termination
should not occur, or (B) in the absolute discretion of RBC Capital Markets
Corporation (whether or not the condition of clause (A) is satisfied) has had or
is reasonably likely to have a Material Adverse Effect, (ii) any outbreak,
attack, or escalation of hostilities or declaration of war, national emergency,
act of terrorism or other national or international calamity or crisis or change
in economic, financial or political conditions if the effect of such outbreak,
escalation, declaration, emergency, calamity, crisis or change on the financial
markets of the United States would, in (A) the absolute discretion of any group
of Underwriters (which may include RBC Capital Markets Corporation) that has
agreed to purchase in the aggregate at least 50% of the Firm Shares, as long as
RBC Capital Markets Corporation does not affirmatively assert that termination
should not occur, or (B) in the absolute discretion of RBC Capital Markets
Corporation (whether or not the condition of clause (A) is satisfied), make it
impracticable or inadvisable to market the Shares or to enforce contracts for
the sale of the Shares, or (iii) suspension of trading in securities generally
on the New York Stock Exchange or the American Stock Exchange or limitation on
prices (other than limitations on hours or numbers of days of trading) for
securities on either such Exchange, (iv) the enactment, publication, decree or
other promulgation of any statute, regulation, rule or order of any court or
other governmental authority which in your opinion materially and adversely
affects or may materially and adversely affect the business or operations of the
Company, (v) declaration of a banking moratorium by United States or New York
State authorities, (vi) any downgrading, or placement on any watch list for
possible downgrading, in the rating of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Exchange Act); (vii) the suspension of trading of the
Company's common stock by The Nasdaq Stock Market, the Commission, or any other
governmental authority or, (viii) the taking of any action by any governmental
body or agency in respect of its monetary or fiscal affairs which in your
reasonable opinion has a material adverse effect on the securities markets in
the United States; or

                  (b) as provided in Sections 8 and 11 of this Agreement.

                                       34


             14.  SUCCESSORS.

                  This Agreement has been and is made solely for the benefit of
the Company, the Principal Stockholders, the Selling Stockholders and
Underwriters and their respective successors, executors, administrators, heirs
and assigns, and the officers, directors and controlling persons referred to
herein, and no other person will have any right or obligation hereunder. No
purchaser of any of the Shares from any Underwriter shall be deemed a successor
or assign merely because of such purchase.

             15.  INFORMATION PROVIDED BY UNDERWRITERS.

                  The Company, the Selling Stockholders, the Principal
Stockholders and the Underwriters acknowledge and agree that the only
information furnished or to be furnished by any Underwriter to the Company for
inclusion in any Prospectus or the Registration Statement consists of the
information contained under the last paragraph under the heading "Commissions
and Discounts," "Discretionary Accounts," and "Short Sales, Stabilizing
Transactions and Penalty Bids" under the caption "Underwriting" in the
Prospectus.

             16.  MISCELLANEOUS.

                  The reimbursement, indemnification and contribution agreements
contained in this Agreement and the representations, warranties and covenants in
this Agreement shall remain in full force and effect regardless of (a) any
termination of this Agreement, (b) any investigation made by or on behalf of any
Underwriter or controlling person thereof, or by or on behalf of the Company or
its directors or officers and (c) delivery of and payment for the Shares under
this Agreement.

                  As to any Shares sold by a Selling Stockholder that may be
deemed to be an affiliate of an Underwriter, the purchasers of such Shares shall
be deemed to be the Underwriters other than such potentially affiliated
Underwriter and appropriate adjustments shall be made to the Shares purchased
from other Selling Stockholders such that the aggregate number of shares each
Underwriter purchases is consistent with the amount set forth in the
Registration Statement and Prospectus.

                  This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.

                  This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.

                  This Agreement constitutes the entire agreement of the parties
to this Agreement and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings and negotiations with respect to
the subject matter hereof.

                                       35


                  This Agreement may only be amended or modified in writing,
signed by all of the parties hereto, and no condition herein (express or
implied) may be waived unless waived in writing by each party whom the condition
is meant to benefit.

                     [remainder of page intentionally blank]








                                       36



         If the foregoing letter is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Company, the Selling
Stockholders and the several Underwriters in accordance with its terms.

         Any person executing and delivering this Agreement as Attorney-in-Fact
for a Selling Shareholder represents by so doing that he has been duly appointed
as Attorney-in-Fact by such Selling Stockholder pursuant to a validly existing
and binding Power of Attorney which authorizes such Attorney-in-Fact to take
such action.


                                            Very truly yours,

                                            MAJESCO HOLDINGS, INC.


                                            By
                                               ---------------------------------
                                               Carl Yankowski
                                               Chief Executive Officer


                                            SELLING STOCKHOLDERS


                                            By
                                               ---------------------------------
                                               Attorney-in-Fact


                                            PRINCIPAL STOCKHOLDER


                                            By
                                               ---------------------------------


                                            PRINCIPAL STOCKHOLDER


                                            By
                                               ---------------------------------

                                            PRINCIPAL STOCKHOLDER


                                            By
                                                --------------------------------


                                       37


                                            PRINCIPAL STOCKHOLDER


                                            By
                                               ---------------------------------



The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.

RBC CAPITAL MARKETS CORPORATION
JMP SECURITIES LLC
HARRIS NESBITT CORP.
WEDBUSH MORGAN SECURITIES INC.

As the Representatives of the several
Underwriters listed on Schedule I

By:  RBC Capital Markets Corporation


By:
       -----------------------------------
Name:
       -----------------------------------
Title:
       -----------------------------------



                                       38





                                   SCHEDULE I

                            SCHEDULE OF UNDERWRITERS


                                                 Number of Firm Shares
         Underwriter                                 to be Purchased
         -----------                                 ---------------

RBC Capital Markets Corporation
JMP Securities LLC
Harris Nesbitt Corp.
Wedbush Morgan Securities Inc.


[others]








                                                     ----------

                  TOTAL                              6,000,000










                                   SCHEDULE II

                        SCHEDULE OF SELLING STOCKHOLDERS


                                                Number of Firm Shares
         Selling Stockholders                          to be Sold
         --------------------                          ----------

[Selling Stockholders]


                                                Number of Option Shares
         Principal Stockholders                        to be Sold
         ----------------------                        --------------
Jesse Sutton                                            110,000
Joseph Sutton                                           110,000
Adam Sutton                                             110,000
Sarah Sutton                                             30,000






                                                       ----------

                  TOTAL                                ----------











                                  SCHEDULE III

                        LIST OF ALL ISSUED PATENTS OWNED
    IN WHOLE OR IN PART BY MAJESCO HOLDINGS, INC. OR ANY OF ITS SUBSIDIARIES
EX-5.1 5 file003.htm OPINION OF MINTZ, LEVIN, COHN, FERRIS, POPEO, P.C. 







MINTZ LEVIN   |  Boston                                 Chrysler Center
COHN FERRIS   |  New York                               666 Third Avenue
GLOVSKY AND   |  Washington                             New York, New York 10017
POPEO PC      |  Reston                                 212 935 3000
                 New Haven                              212 983 3115 fax
                                                        www.mintz.com




                                                          January __, 2005

Majesco Holdings Inc.
160 Raritan Center Parkway
Edison, New Jersey  08837

     Re:  Registration Statement on Form S-1, as amended, File No. 333-120103

Ladies and Gentlemen:

We have acted as counsel to Majesco Holdings Inc., a Delaware corporation (the
"Company"), in connection with the public offering of up to 4,222,176 shares of
common stock of the Company (which includes 540,000 shares subject to an
over-allotment option) (the "Shares") to be issued by the Company pursuant to
the Registration Statement on Form S-1, as amended, File No. 333-120103 (the
"Registration Statement")

This opinion is being furnished in accordance with the requirements of Item
601(b)(5) of Regulation S-K under the Securities Act of 1933, as amended (the
"Act").

In connection with this opinion, we are familiar with the proceedings taken by
the Company in connection with the authorization, issuance and sale of the
Shares, and for purposes of this opinion, have assumed such proceedings will be
timely completed in the manner presently proposed. In addition, we have made
such legal and factual examinations and inquiries, including an examination of
originals or copies certified or otherwise identified to our satisfaction of
such documents, corporate records and instruments, as we have deemed necessary
or appropriate for purposes of this opinion.

In our examination, we have assumed the genuineness of all signatures, the legal
capacity of natural persons, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to
us as certified, photostatic or facsimile copies and the authenticity of the
originals of such copies.

Based upon the foregoing, we are of the opinion that when (i) specifically
authorized for issuance by the Company's Board of Directors or an authorized
committee thereof (the "Authorizing Resolutions"), (ii) the Registration
Statement has become effective under the Act,




MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C.


January __, 2005
Page 2


(iii) the terms of the sale of the Shares have been duly established in
conformity with the Company's Certificate of Incorporation and By-laws and (iv)
the Shares have been issued, delivered and sold as contemplated by the
Registration Statement, the Shares will have been duly authorized and will be
validly issued, fully paid and nonassessable.

Our opinion is limited to the General Corporation Laws of the State of Delaware
and the United States Federal Laws, and we express no opinion with respect to
the laws of any other jurisdiction. To the extent that any applicable document
is stated to be governed by the laws of another jurisdiction, we have assumed
for purposes of this opinion that the laws of such jurisdiction are identical to
the state laws of the State of Delaware.






MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C.


January __, 2005
Page 3


Please note that we are opining only as to the matters expressly set forth
herein, and no opinion should be inferred as to any other matters. This opinion
is based upon currently existing statutes, rules, regulations and judicial
decisions, and we disclaim any obligation to advise you of any change in any of
these sources of law or subsequent legal or factual developments which might
affect any matters or opinions set forth herein.

We understand that you wish to file this opinion as an exhibit to the
Registration Statement, and we hereby consent thereto. We also consent to the
reference to our firm contained under the heading "Legal Matters" in the
Registration Statement.

                                              Very truly yours,


                                              Mintz, Levin, Cohn, Ferris,
                                              Glovsky and Popeo, P.C.
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