1,500,000 Shares
INTEGRATED MEASUREMENT SYSTEMS, INC.
Common Stock, $.01 par value
UNDERWRITING AGREEMENT
February __, 1997
February __, 1997
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxx & Company
SoundView Financial Group, Inc.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Integrated Measurement Systems, Inc., an Oregon corporation (the
"Company"), and Cadence Design Systems, Inc. ("Cadence"), a Delaware Corporation
and a majority stockholder of the Company, propose to issue and sell to the
several Underwriters named in Schedule I hereto (the "Underwriters"), an
aggregate of 1,500,000 shares of the common stock, $.01 par value, of the
Company (the "Firm Shares"), of which 675,000 shares are to be issued and sold
by the Company and 825,000 shares are to be sold by Cadence.
In addition, the Company and Cadence propose to sell to the Underwriters
not more than an additional 225,000 shares of the Company's common stock, $.01
per value (the "Additional Shares"), of which 100,000 shares are to be issued
and sold by the Company and 125,000 shares are to be sold by Cadence, if and to
the extent that you, as Managers of the offering, shall have determined to
exercise, on behalf of the Underwriters, the right to purchase such shares of
common stock granted to the Underwriters in Article III hereof. In the event
that the Underwriters exercise their option with respect to less than the total
number of Additional Shares which may be purchased by them, then the
Underwriters shall purchase such Additional Shares from the Company and Cadence
in proportion, as near as practicable, to the number of total Additional Shares
sold by each of them, as set forth above. The Firm Shares and the Additional
Shares are hereinafter collectively referred to as the Shares. The shares of
common stock, $.01 par value, of the Company to be outstanding after giving
effect to the sales contemplated hereby are hereinafter referred to as the
Common Stock. The Company and Cadence are hereinafter sometimes collectively
referred to as the Sellers.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to the
Shares. The registration statement as amended at the time it becomes effective,
including the information (if any) deemed to be part of the registration
statement at the time of effectiveness pursuant to Rule 430A under the
Securities Act of 1933, as amended (the "Securities Act"), is hereinafter
referred to as the "Registration Statement;" the prospectus in the form first
used to confirm sales of Shares is hereinafter referred to as the "Prospectus."
If the Company files a registration statement to register a portion of the
Shares and relies on Rule 462(b) under the Securities Act for such registration
statement to become effective upon filing with the Commission (the "Rule 462
Registration Statement"), then any reference to the "Registration Statement"
shall be deemed to refer to both the registration statement referred to above
(Commission File No. 333- ) and the Rule 462 Registration Statement, in each
case as amended from time to time.
I.
A. The Company and Cadence, jointly and severally, represent and warrant
to each of the Underwriters that:
(i) The Registration Statement has become effective, no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by the
Commission.
(ii) (I) Each document filed pursuant to the Exchange Act complied
when so filed in all material respects with the Securities Exchange Act of
1934, as amended (the "Exchange Act") and the applicable rules and
regulations of the Commission thereunder; (II) each part of the
Registration Statement, when such part became effective, did not contain
and each such part, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading, (III) the Registration Statement and the Prospectus
comply and, as amended or supplemented, if applicable, will comply in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (IV) the Prospectus does not
contain and, as amended or supplemented, if applicable, will not contain
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this paragraph I.A (ii) do not
apply to statements or omissions in the Registration Statement or the
Prospectus based upon information relating to any Underwriter furnished to
the Company in writing by such Underwriter through you expressly for use
therein.
(iii) The Company has been duly incorporated, and is an active
corporation under the laws of the State of Oregon, has the corporate power
and authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company.
(iv) The Shares to be sold by the Company have been duly authorized,
and, when issued and delivered in accordance with the terms of this
Agreement, will be validly issued, fully paid and non-assessable, and the
issuance of such Shares will not be subject to any preemptive or similar
rights.
(v) This Agreement has been duly authorized, executed and delivered
by the Company and is a valid and binding agreement of the Company.
(vi) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and the Subsidiary (as hereinafter defined),
taken as a whole, from that set forth in the Prospectus.
(vii) There are no legal or governmental proceedings pending or
threatened to which the Company or the Subsidiary is a party or to which
any of the properties of the Company or the Subsidiary is subject that are
required to be described in the Registration Statement or the Prospectus
and are not so described or any statutes,
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regulations, contracts or other documents that are required to be described
in the Registration Statement or the Prospectus or to be filed as exhibits
to the Registration Statement that are not described or filed as required.
(viii) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 or Rule 462 under the Securities Act, complied when so
filed in all material respects with the Securities Act and the rules and
regulations of the Commission thereunder.
(ix) Each of the Company and the Subsidiary maintains a system of
internal accounting controls sufficient to provide reasonable assurance
that (1) transactions are executed in accordance with management's general
or specific authorization; (2) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (3)
access to assets is permitted only in accordance with management's general
or specific authorization; and (4) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
The representations and warranties of Cadence set forth in paragraphs
(ii), (iii), (vi), (vii) and (ix) are made on the basis that, after due
inquiry, Cadence has no knowledge of or reasonable grounds to believe in the
existence of any facts which would make such representations and warranties
untrue, incomplete or incorrect.
B. The Company represents and warrants to each of the Underwriters that:
(i) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement will
not contravene any provision of applicable law or the articles of
incorporation or bylaws of the Company or the Subsidiary or any agreement
or other instrument binding upon the Company or the Subsidiary that is
material to the Company and the Subsidiary, taken as a whole, or any
judgment, order or decree of any governmental body, agency or court having
jurisdiction over the Company or the Subsidiary, and no consent, approval,
authorization or order of or qualification with any governmental body or
agency is required for the performance by the Company of its obligations
under this Agreement, 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.
(ii) Integrated Measurement Systems FSC, Inc., a Guam corporation
(the "Subsidiary"), has been duly incorporated, is validly existing as a
corporation in good standing under the laws of Guam, has the corporate
power and authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact business and
is in good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or
be in good standing would not have a material adverse effect on the Company
and the Subsidiary, taken as a whole. All of the issued shares of capital
stock of the Subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable, and owned
directly by the Company, free and clear of all liens, encumbrances,
equities or claims. The Subsidiary is not required to be set forth in
Exhibit 21 to the Registration Statement and the Company does not own,
directly or indirectly, an interest in any other corporation, partnership,
business, trust or other entity required to be set forth in Exhibit 21 to
the Registration Statement.
(iii) Each of the Company and the Subsidiary has all necessary
consents, authorizations, approvals, orders, certificates and permits of
and from, and has made all declarations and filings with, all federal,
state,
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local and other governmental authorities, all self-regulatory organizations
and all courts and other tribunals, to own, lease, license and use its
properties and assets and to conduct its business in the manner described
in the Prospectus, except to the extent that the failure to obtain or file
would not have a material adverse effect on the Company and the
Subsidiary, taken as a whole.
(iv) The shares of Common Stock (including the Shares to be sold by
Cadence) outstanding prior to the issuance of the Shares to be sold by the
Company have been duly authorized and are validly issued, fully paid and
non-assessable.
(v) The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus.
(vi) Each of the Company and the Subsidiary (i) is in compliance with
any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants (collectively, "Environmental Laws"), (II) has received all
permits, licenses or other approvals required of it under applicable
Environmental Laws to conduct its business and (III) is in compliance with
all terms and conditions of any such permit, license or approval, except
where such noncompliance with Environmental Laws, failure to receive
required permits, licenses or other approvals or failure to comply with the
terms and conditions of such permits, licenses or approvals would not,
singly or in the aggregate, have a material adverse effect on the Company
and the Subsidiary, taken as a whole.
(vii) The costs and liabilities associated with Environmental Laws
(including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third
parties) would not, singly or in the aggregate, reasonably be expected to
have a material adverse effect on the Company and the Subsidiary, taken as
a whole.
(viii) Each of the Company and the Subsidiary owns or possesses
adequate licenses or other rights to use all patents, copyrights,
trademarks, service marks, trade names, maskwork rights, technology and
know-how necessary (in any material respect) to conduct its business in the
manner described in the Prospectus and, except as disclosed in the
Prospectus, neither the Company nor the Subsidiary have received any notice
of infringement or conflict with (and neither the Company nor the
Subsidiary know of any infringement or conflict with) asserted rights of
others with respect to any patents, copyrights, trademarks, service marks,
trade names, maskwork rights, technology or know-how which could result in
any material adverse effect upon the Company and the Subsidiary, taken as a
whole; and, except as disclosed in the Prospectus, the discoveries,
inventions, products or processes of the Company referred to in the
Prospectus do not, to the knowledge of the Company or the Subsidiary,
infringe or conflict with any right or patent of any third party, or any
discovery, invention, product or process which is the subject of a patent
application filed by any third party, known to the Company or the
Subsidiary which could have a material adverse effect on the Company and
the Subsidiary, taken as a whole.
(ix) The Company is not and, after giving effect to the
offering and sale of the Shares and the application of the proceeds thereof
as described in the Prospectus will not be, an "investment company" as such
term is defined in the Investment Company Act of 1940, as amended.
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(x) There is no owner of any securities of the Company who has
any rights, not effectively satisfied or waived, to require registration of
any shares of capital stock of the Company in connection with the filing of
the Registration Statement.
(xi) As of the date the Registration Statement becomes
effective, the Company's Common Stock will be listed on the Nasdaq National
Market System.
(xii) The Company has complied with all provisions of Section
517.075, Florida Statutes (Chapter 92-198, Laws of Florida), relating to
issuers doing business with Cuba.
II.
Cadence represents and warrants to each of the Underwriters that:
(i) it is duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(ii) To the best of its knowledge, that all the representations
of the Company set forth in Section I.B are true and correct.
(iii) This Agreement has been duly authorized, executed and delivered
by Cadence and constitutes a valid and binding obligation upon Cadence.
(iv) The execution and delivery by Cadence and the performance by
Cadence of its obligations under, this Agreement and any lock-up agreement
signed by Cadence relating to resale restrictions on the Company stock
owned or held by Cadence ("Lock-Up Agreement"), will not contravene
Cadence's certificate or articles of incorporation or by-laws, or any
agreement or other instrument binding upon Cadence or any judgment, order
or decree of any governmental body, agency or court having jurisdiction
over Cadence, and no consent, approval, authorization or order of or
qualification with any governmental body or agency is required for the
performance by Cadence of its obligations under this Agreement the Lock-Up
Agreement, 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.
(v) Cadence has, and on the Closing Date will have, good and
valid marketable title to the Shares to be sold by Cadence and the legal
right and power, and all authorization and approval required by law, to
enter into this Agreement and to sell, transfer and deliver the Shares to
be sold by Cadence.
(vi) The Shares to be sold by Cadence pursuant to this Agreement have
been duly authorized and are validly issued, fully paid and non-assessable.
(vii) Upon delivery of and payment for the Shares to be sold by
Cadence pursuant to this Agreement, the Underwriters will receive good and
valid title to such Shares free and clear of any security interests,
claims, liens and other encumbrances.
III.
Each Seller, severally and not jointly, hereby agrees to sell to the
several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
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hereinafter stated, agrees, severally and not jointly, to purchase from such
Seller at $________ a share -- the purchase price -- the number of Firm Shares
(subject to such adjustments to eliminate fractional shares as you may
determine) that bears the same proportion to the number of Firm Shares to be
sold by such Seller as the number of Firm Shares set forth in Schedule I hereto
opposite the name of such Underwriter bears to the total number of Firm Shares.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company and Cadence
hereby agree to sell to the Underwriters the Additional Shares, and the
Underwriters shall have a one-time right to purchase, severally and not jointly,
up to 225,000 Additional Shares at the purchase price. Additional Shares may
be purchased as provided in Article V hereof solely for the purpose of covering
over-allotments made in connection with the offering of the Firm Shares. If any
Additional Shares are to be purchased, each Underwriter agrees, severally and
not jointly, to purchase the number of Additional Shares (subject to such
adjustments to eliminate fractional shares as you may determine) that bears the
same proportion to the total number of Additional Shares to be purchased as the
number of Firm Shares set forth in Schedule I hereto opposite the name of such
Underwriter bears to the total number of Firm Shares.
The Company hereby agrees that, without the prior written consent of Xxxxxx
Xxxxxxx & Co. Incorporated on behalf of the Underwriters, it will not, during
the period ending 90 days after the date of the Prospectus, (1) offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase, or
otherwise transfer or dispose of, directly or indirectly, any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock, or (2) enter into any swap or similar arrangement that transfers,
in whole or in part, the economic risk of ownership of the Common Stock, whether
any such transaction described in clause (1) or (2) above is to be settled by
delivery of Common Stock or such other securities, in cash or otherwise, other
than (i) the Shares to be sold hereunder, (ii) any shares of such Common Stock
sold by the Company upon the exercise of an option under the Company's stock
option plans outstanding on the date hereof, (iii) any option to purchase Common
Stock, and any shares of Common Stock sold by the Company upon the exercise of
such options, granted under the Company's 1995 Stock Incentive Plan and the 1995
Stock Option Plan for Non-Employee Directors ,provided that, the holder of such
option enters into a lock-up agreement similar to the agreement set forth in
this paragraph for the period from the date of such grant until the date 90 days
after the date of the Prospectus, and (iv) any shares of Common Stock issued
and sold by the Company pursuant to the 1995 Employee Stock Purchase Plan. The
Company hereby further agrees that during the period ending 90 days after the
date of the Prospectus, it will not waive, amend or alter any lock up provision
contained in any stock option agreement between the Company and any person
without the prior written consent of Xxxxxx Xxxxxxx & Co. Incorporated on behalf
of the Underwriters.
Cadence hereby agrees that, without the prior written consent of Xxxxxx
Xxxxxxx & Co. Incorporated on behalf of the Underwriters, it will not, during
the period ending 90 days after the date of the Prospectus, (1) offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase, or
otherwise transfer or dispose of directly or indirectly, any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock, or (2) enter into any swap or similar arrangement that transfers,
in whole or in part, the economic risk
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of ownership of the Common Stock, whether any such transaction described in
clause (1) or (2) above is to be settled by delivery of Common Stock or such
other securities, in cash or otherwise. In addition, Cadence agrees that,
without the prior written consent of Xxxxxx Xxxxxxx & Co. Incorporated on behalf
of the Underwriters, it will not, during the period ending 90 days after the
date of the Prospectus, make any demand for or exercise any right with respect
to, the registration of any shares of Common Stock or any security convertible
into or exercisable or exchangeable for Common Stock.
IV.
The Sellers are advised by you that the Underwriters propose to make a
public offering of their respective portions of the Shares as soon after the
Registration Statement and this Agreement have become effective as in your
judgment is advisable. The Sellers are further advised by you that the Shares
are to be offered to the public initially at $____ a share (the public offering
price) and to certain dealers selected by you at a price that represents a
concession not in excess of $___ a share under the public offering price, and
that any Underwriter may allow, and such dealers may reallow, a concession, not
in excess of $____ a share, to any Underwriter or to certain other dealers.
V.
Payment for the Firm Shares shall be made in Federal or other funds
immediately available in New York City against delivery of such Firm Shares for
the respective accounts of the several Underwriters at 10:00 A.M., New York City
time, on _________, or at such other time on the same or such other date, not
later than _________, as shall be designated in writing by you. The time and
date of each such payment are hereinafter referred to as the Closing Date.
Payment for any Additional Shares shall be made in Federal or other
funds immediately available in New York City against delivery of such Additional
Shares for the respective accounts of the several Underwriters at 10:00 A.M.,
New York City time, on such date (which may be the same as the Closing Date but
shall in no event be earlier than the Closing Date nor later than ten business
days after the giving of the notice hereinafter referred to) as shall be
designated in a written notice from you to the Company of your determination, on
behalf of the Underwriters, to purchase a number, specified in said notice, of
Additional Shares, or on such other date, in any event not later than
___________ as shall be designated in writing by you. The time and date of such
payment are hereinafter referred to as the Option Closing Date. The notice of
the determination to exercise the option to purchase Additional Shares and of
the Option Closing Date may be given at any time within 30 days after the date
of this Agreement.
Certificates for the Firm Shares and Additional Shares shall be in
definitive form and registered in such names and in such denominations as you
shall request in writing not later than two full business days prior to the
Closing Date or the Option Closing Date, as the case may be. The certificates
evidencing the Firm Shares and Additional Shares shall be delivered to you on
the Closing Date or the Option Closing Date, as the case may be, for the
respective accounts of the several Underwriters, with any transfer taxes payable
in
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connection with the transfer of the Shares to the Underwriters duly paid,
against payment of the purchase price therefor.
VI.
The obligations of the Sellers and the several obligations of the
Underwriters hereunder are subject to the condition that the Registration
Statement shall have become effective not later than the date hereof.
The several obligations of the Underwriters hereunder are subject to the
following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have occurred any change, or any
development involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations, of the Company and
the Subsidiary, taken as a whole, from that set forth in the Registration
Statement, that, in your judgment, is material and adverse and that makes
it, in your judgment, impracticable to market the Shares on the terms and
in the manner contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by the chief executive
officer and the chief financial officer of the Company, to the effect set
forth in clause (a) above, and to the effect that the representations and
warranties of the Company contained in this Agreement are true and correct
as of the Closing Date and that the Company has complied with all of the
agreements and satisfied all of the conditions on its part to be performed
or satisfied hereunder on or before the Closing Date.
The officers signing and delivering such certificate may rely upon the
best of their knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by each of the chief
executive officer and the chief financial officer of Cadence to the effect
set forth in clause (a) above, and to the effect that the representations
and warranties of Cadence contained in this Agreement are true and correct
as of the Closing Date and that Cadence has complied with all of the
agreements and satisfied all of the conditions on its part to be performed
or satisfied hereunder on or before the Closing Date (the officers signing
and delivering such certificate may rely upon the best of their knowledge
as to proceedings threatened).
(d) You shall have received on the Closing Date an opinion of Ater
Xxxxx Xxxxxx Xxxxxx & Xxxxxxxx, counsel for the Company, dated the Closing
Date, to the effect that
(i) the Company has been duly incorporated and is an active
corporation under the laws of the State of Oregon, has the corporate
power and authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact business
and is in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse
effect on the Company;
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(ii) based solely on such counsel's review of the stock records
of the Subsidiary, the Company owns all of the shares of capital stock
of the Subsidiary;
(iii) the authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the Prospectus;
(iv) the shares of Common Stock (including the Shares to be sold
by Cadence) outstanding prior to the issuance of the Shares to be sold
by the Company have been duly authorized and are validly issued, fully
paid and non-assessable;
(v) the Shares to be sold by the Company have been duly
authorized when issued and delivered in accordance with the terms of
this Agreement, will be validly issued, fully paid and non-assessable,
and the issuance of such Shares will not be subject to any statutory
preemptive or, to such counsel's knowledge, similar rights;
(vi) the Company has corporate power and authority to enter into
this Agreement and to issue, sell and deliver to the Underwriters the
Shares to be issued and sold by the Company and this Agreement has
been duly authorized, executed and delivered by the Company;
(vii) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement
will not contravene any provision of applicable law or the articles of
incorporation or bylaws of the Company or, to the best of such
counsel's knowledge, any agreement or other instrument binding upon
the Company or the Subsidiary that is material to the Company and the
Subsidiary, taken as a whole, or, to the best of such counsel's
knowledge, any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company or the Subsidiary
and no consent, approval, authorization or order of or qualification
with any governmental body or agency is required for the performance
by the Company of its obligations under this Agreement, 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 or under
the rules or regulations of the National Association of Securities
Dealers (the "NASD") with respect to underwriting arrangements;
(viii) the statements (1) in the Prospectus under the captions
"Risk Factors -- Effect of Certain Anti-Takeover Provisions," "Risk
Factors--Shares Eligible for Future Sale," "Management," "Certain
Transactions--Description of Agreements with Cadence," "Description of
Capital Stock," and "Shares Eligible for Future Sale," and (2) in the
Registration Statement in Items 14 and 15, in each case insofar as
such statements constitute summaries of the legal matters, documents
or proceedings referred to therein, fairly present the information
called for with respect to such legal matters, documents and
proceedings and fairly summarize the matters referred to therein;
(ix) after due inquiry, such counsel does not know of any legal,
regulatory or governmental proceeding pending or threatened to which
either the Company or the Subsidiary is a party or to which any of the
properties of the Company or the Subsidiary is subject that are
required to be described in the Registration Statement or the
Prospectus and are not so described or of any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to
the Registration Statement that are not described or filed as
required;
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(x) the Company is not and, after giving effect to the offering
and the sale of the Shares and the application of the proceeds thereof
as described in the Prospectus will not be, an "investment company" or
an entity "controlled" by an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended;
(xi) to the best of such counsel's knowledge: (i) the
Registration Statement has become effective under the Securities Act,
no stop order proceedings with respect thereto have been instituted or
are pending or threatened under the Securities Act; and (ii) any
required filing of the Prospectus and any supplement thereto pursuant
to Rule 424(b) of the rules and regulations has been made in the
manner and within the time period required by such Rule 424(b);
(xii) to such counsel's knowledge, each document filed pursuant to
the Exchange Act (except for financial statements and schedules and
other financial information derived therefrom included therein as to
which such counsel need not express any opinion) complied when so
filed as to form in all material respects with the Exchange Act and
the applicable rules and regulations of the Commission thereunder,
(xiii) such counsel is of the opinion that the Registration
Statement and Prospectus (except for financial statements and
schedules and other financial data included therein as to which such
counsel need not express any opinion) comply as to form in all
material respects with the Securities Act and the rules and
regulations of the Commission thereunder, (2) believes that (except
for financial statements and schedules and other financial data as to
which such counsel need not express any belief) the Registration
Statement and the prospectus included therein at the time the
Registration Statement became effective did not contain any untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading and (3) believes that (except for financial statements and
schedules and other financial data as to which such counsel need not
express any belief) the Prospectus does not contain any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(e) You shall have received on the Closing Date an opinion of Xxxxxx
Godward LLP, counsel for Cadence, dated the Closing Date, to the
effect that
(i) Cadence has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of
Delaware.
(ii) this Agreement has been duly authorized, executed and
delivered by Cadence;
(iii) the execution and delivery by Cadence of, and the
performance by Cadence of its obligations under, this Agreement will
not contravene any provision of applicable law, or the certificate of
incorporation or bylaws of Cadence or, to the best of such counsel's
knowledge, any agreement or other instrument binding upon Cadence that
is material Cadence or, to the best of such counsel's knowledge, any
judgment, order or decree of any governmental body, agency or court
having jurisdiction over Cadence where such judgment order or decree
would have, singly or in the aggregate,
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an material adverse effect on Cadence, and no consent, approval,
authorization or order of or qualification with any governmental body
or agency is required for the performance by Cadence of its
obligations under this Agreement, except such as have been obtained or
may be required by the securities or Blue Sky laws of the various
states in connection with the offer and sale of the Shares or under
the rules or regulations of the NASD with respect to underwriting
arrangements;
(iv) Cadence has the corporate power, and all authorization
and approval required by law, to enter into this Agreement and to
sell, transfer and deliver the Shares to be sold by Cadence; and, to
such counsel's knowledge, Cadence has valid title to the Shares to be
sold by it and such sale, transfer and delivery is not subject, to the
best of our knowledge, to any right of first refusal or other
contractual restriction and each of the certificates evidencing such
Shares is in proper legal form; and
(v) assuming the Underwriters purchase the Shares to be
sold by Cadence for value, in good faith and without notice of any
adverse claim, upon delivery of and payment for the Shares to be sold
by Cadence pursuant to this Agreement, the Underwriters will receive
valid title to such Shares free and clear of any security interests,
claims, liens, equities and other encumbrances.
(f) You shall have received on the Closing Date an opinion of Xxxxxx
Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel for the
Underwriters, dated the Closing Date, covering the matters referred to in
subparagraphs (v), (vi), (x) and (xiv) of paragraph (d) above and to the effect
that the statements in the Prospectus under "Underwriters," insofar as such
statements constitute a summary of this Agreement, fairly present the
information called for with respect to such Agreement.
With respect to subparagraph (xiv) of paragraph (d) above, Ater Xxxxx
Xxxxxx Xxxxxx & Xxxxxxxx and Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx may state that
their opinion and belief are based upon their participation in the preparation
of the Registration Statement and Prospectus and any amendments or supplements
thereto and review and discussion of the contents thereof, but are without
independent check or verification except as specified.
The opinions of Ater Xxxxx Xxxxxx Xxxxxx & Xxxxxxxx and Xxxxxx Godward
LLP described in paragraphs (d) and (e) above shall be rendered to you
at the request of the Company or Cadence, as the case may be, and shall so
state therein.
(g) You shall have received, on each of the date hereof and the
Closing Date, a letter dated the date hereof or the Closing Date, as the
case may be, in form and substance satisfactory to you, from Xxxxxx
Xxxxxxxx L.L.P., independent public accountants, containing statements and
information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement and
the Prospectus.
(h) The "lock-up" agreements between you and certain officers and
directors of the Company relating to sales of shares of Common Stock of the
Company or any securities convertible into or exercisable or exchangeable
for such Common Stock, delivered to you on or before the date hereof, shall
be in full force and effect on the Closing Date.
(i) The shares of Common Stock of the Company are listed on the
Nasdaq National Market System, and the shares of Common Stock to be sold
hereby shall have been included as additional shares for listing with
Nasdaq National Market System.
-11-
All the agreements, opinions, certificates and letters mentioned above or
elsewhere in this Agreement shall be deemed in compliance with the provisions
hereof only if Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, counsel for the Underwriters,
shall be reasonably satisfied that they comply in form and scope.
The several obligations of the Underwriters to purchase Additional Shares
hereunder are subject to the delivery to you on the Option Closing Date of such
documents as you may reasonably request with respect to the good standing of the
Company, the due authorization, issuance and sale of the Additional Shares and
other matters related to the issuance and sale of the Additional Shares.
VII.
In further consideration of the agreements of the Underwriters herein
contained, the Company covenants as follows:
(a) To furnish to you, without charge, four (4) signed copies of
the Registration Statement (including exhibits thereto) and for delivery to
each other Underwriter a conformed copy of the Registration Statement
(without exhibits thereto) and, during the period mentioned in paragraph
(c) below, as many copies of the Prospectus and any supplements and
amendments thereto or to the Registration Statement as you may reasonably
request. In the case of the Prospectus, to furnish copies of the
Prospectus in New York City, prior to 5:00 p.m., local time, on the
business day following the date of this Agreement, in such quantities as
you may reasonably request.
(b) Before amending or supplementing the Registration Statement or
the Prospectus, to furnish to you a copy of each such proposed amendment or
supplement and to file no such proposed amendment or supplement to which
you reasonably object.
(c) If, during such period after the first date of the public
offering of the Shares as in the opinion of your counsel the Prospectus is
required by law to be delivered in connection with sales by an Underwriter
or dealer, any event shall occur or condition exist as a result of which it
is necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when the Prospectus
is delivered to a purchaser, not misleading, or if, in the opinion of your
counsel, it is necessary to amend or supplement the Prospectus to comply
with law, forthwith to prepare, file with the Commission and furnish, at
its own expense, to the Underwriters and to the dealers (whose names and
addresses you will furnish to the Company) to which Shares may have been
sold by you on behalf of the Underwriters and to any other dealers upon
request, either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not, in the
light of the circumstances when the Prospectus is delivered to a purchaser,
be misleading or so that the Prospectus, as amended or supplemented, will
comply with law.
(d) To endeavor to qualify the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably
request and to pay all expenses (including fees and disbursements of
counsel) in connection with such qualification and in connection with any
review of the offering of the Shares by the National Association of
Securities Dealers, Inc; provided, however, that the Company shall not be
required to qualify the Shares under the laws of any jurisdiction where the
Company is not otherwise subject to suit if such qualification would
constitute or require the consent of the Company to suit in such
jurisdiction.
-12-
(e) To make generally available to the Company's security holders and
to you as soon as practicable an earning statement covering the
twelve-month period ending December 31, 1997 that satisfies the provisions
of Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder.
(f) The Company will comply with all registration, filing and
reporting requirements of the Exchange Act, which may from time to time be
applicable to the Company.
VIII.
Cadence agrees to pay or cause to be paid all taxes, if any, on the
transfer and sale of the Shares being sold by Cadence and the fees and
expenses of counsel retained by Cadence. The Company agrees to pay all costs
and expenses incident to the performance of the obligations of Cadence and
the Company under this Agreement (except as set forth above), including, but
not limited to, all expenses incident to (i) the preparation and filing of
the Registration Statement (including all exhibits thereto) and the
Prospectus and all amendments and supplements thereto, (ii) the preparation,
issuance and delivery of the Shares, including any transfer taxes payable in
connection with the transfer and sale of the Shares to the Underwriters,
(iii) the fees and disbursements of the Company's counsel and accountants,
(iv) the qualification of the Shares under state securities or Blue Sky laws
in accordance with the provisions of paragraph (d) of Article VII hereof,
including filing fees and the fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the preparation
of any Blue Sky or Legal Investment Memoranda, (v) the printing and delivery
to the Underwriters, in quantities as hereinabove stated, of copies of the
Registration Statement (including all exhibits thereto) and all amendments
thereto and of each preliminary prospectus and the Prospectus and any
amendments or supplements thereto, (vi) the printing and delivery to the
Underwriters of copies of any Blue Sky or Legal Investment Memoranda, (vii)
the filing fees and expenses, if any, incurred with respect to any filing
with the National Association of Securities Dealers, Inc., made in connection
with the offering of the Shares, (viii) any expenses incurred by the Company
in connection with a "road show" presentation to potential investors, (ix)
the listing of the Common Stock on the Nasdaq National Market and (x) all
document production charges and expenses of counsel to the Underwriters (but
not including their fees for professional services) in connection with the
preparation of this Agreement; PROVIDED, however, that Cadence agrees to pay
or cause to be paid its pro rata share (based on the percentage which the
number of Shares sold by Cadence bears to the total number of Shares sold) of
all underwriting discounts and commissions.
IX.
The Company and Cadence, jointly and severally, agree to indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or is
under common control with, or is controlled by, any Underwriter, from and
against any and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred in connection with
defending or investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, any preliminary prospectus or
the Prospectus (as amended or supplemented if the
-13-
Company shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon information relating to any Underwriter furnished to the Company in writing
by such Underwriter through you expressly for use therein; provided, however,
that the foregoing indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting such losses, claims, damages or liabilities purchased Shares,
or any person controlling 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
written confirmation of the sale of the shares to such person, and if the
Prospectus (as so amended or supplemented) would have cured the defect giving
rise to such loss, claim, damage or liability. The liability of Cadence under
the indemnity agreement contained in this paragraph or for breach of its
representations and warranties under Article I and Article II hereof shall be
limited to an amount equal to 1.25 times the total proceeds to Cadence of the
sale of the Firm Shares and Additional Shares, if applicable, sold by Cadence.
Notwithstanding the foregoing, Cadence shall not be required to make any payment
required by the provisions of this paragraph unless the parties indemnified
under this paragraph have demanded payment from the Company and the Company has
refused to make such payment or failed to make such payment in full within 30
days from the date of such demand.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, Cadence, the directors of the Company, the
officers of the Company who sign the Registration Statement and each person,
if any, who controls the Company or Cadence within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act from and
against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or any amendment thereof, any
preliminary prospectus or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or
caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, but only with reference to information relating to such
Underwriter furnished to the Company in writing by such Underwriter through
you expressly for use in the Registration Statement, any preliminary
prospectus, the Prospectus or any amendments or supplements thereto.
In case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought
pursuant to any of the two preceding paragraphs, such person (the "Indemnified
Party") shall promptly notify the person against whom such indemnity may be
sought (the "Indemnifying Party") in writing and the Indemnifying Party, upon
request of the Indemnified Party, shall retain counsel reasonably satisfactory
to the Indemnified Party to represent the Indemnified Party and any others the
Indemnifying Party may designate in such proceeding and shall pay 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, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Party unless (i) the Indemnifying Party and the Indemnified
Party shall have
-14-
mutually agreed to the retention of such counsel or (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. It is understood that the Indemnifying Party shall not,
in respect of the legal expenses of any Indemnified Party in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for
(a) the fees and expenses of more than one separate firm (in addition to any
local counsel) for all Underwriters and all persons, if any, who control any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, (b) the fees and expenses of more than one
separate firm (in addition to any local counsel) for the Company, its directors,
its officers who sign the Registration Statement and each person, if any, who
controls the Company within the meaning of either such Section and (c) the fees
and expenses of more than one separate firm (in addition to any local counsel)
for Cadence and all persons, if any, who control Cadence within the meaning of
either such Section, and that all such fees and expenses shall be reimbursed as
they are incurred. In the case of any such separate firm for the Underwriters
and such control persons of Underwriters, such firm shall be designated in
writing by Xxxxxx Xxxxxxx & Co. Incorporated. In the case of any such separate
firm for the Company, and such directors, officers and control persons of the
Company, such firm shall be designated in writing by the Company. In the case
of any such separate firm for Cadence and such controlling persons of Cadence,
such firm shall be designated in writing by Cadence. 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. Notwithstanding the foregoing sentence, if at any time
an Indemnified Party shall have requested an Indemnifying Party to reimburse the
Indemnified Party for fees and expenses of counsel as contemplated by the second
and third sentences of this paragraph, the Indemnifying Party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such Indemnifying Party of the aforesaid request and (ii) such
Indemnifying Party shall not have reimbursed the Indemnified Party in accordance
with such request prior to the date of such settlement. No Indemnifying Party
shall, without the prior written consent of the Indemnified Party, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Party is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Party, unless such settlement includes an
unconditional release of such Indemnified Party from all liability on claims
that are the subject matter of such proceeding.
If the indemnification provided for in the first or second paragraph of
this Article IX is unavailable to an Indemnified Party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein,
then each Indemnifying Party under such paragraph, in lieu of indemnifying
such Indemnified Party thereunder, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such losses, claims, damages
or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Indemnifying Party or parties on the one
hand and the Indemnified Party or parties on the other hand from the offering
of the Shares or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Indemnifying Party or parties on the one hand and of
the Indemnified Party or parties on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable
-15-
considerations. The relative benefits received by the Sellers on the one hand
and the Underwriters on the other hand in connection with the offering of the
Shares shall be deemed to be in the same respective proportions as the net
proceeds from the offering of the Shares (before deducting expenses) received by
each Seller and the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover of the
Prospectus, bear to the aggregate public offering price of the Shares. The
relative fault of the Sellers on the one hand and the Underwriters on the other
hand shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Sellers
or by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Underwriters' respective obligations to contribute pursuant to this Article
IX are several in proportion to the respective number of Shares they have
purchased hereunder, and not joint.
The Sellers and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Article IX 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 in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Article IX, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages that such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. Cadence shall not be required to
contribute any amount in excess of the amount by which 1.25 times the total
proceeds to Cadence of the sale of the Firm Shares and Additional Shares, if
applicable, sold by Cadence, exceeds the amount of any damages which Cadence
has otherwise been required to pay be reason of such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to in the
immediately preceding paragraph and in no case shall Cadence be required to
contribute any amounts under this paragraph or the immediately preceding
paragraph which in the aggregate when taken together with any amounts paid by
Cadence under the first paragraph of this Article IX exceeds 1.25 times the
total proceeds to Cadence of the sale of the Firm Shares and Additional Shares,
if applicable, sold by Cadence. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Article IX are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this Article IX and
the representations and warranties of the Company and Cadence contained in this
Agreement shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Underwriter or any person controlling any Underwriter, Cadence or
any person controlling Cadence,
-16-
or the Company, its officers or directors or any person controlling the Company
and (iii) acceptance of and payment for any of the Shares.
X.
This Agreement shall be subject to termination, in your sole discretion, by
notice given by you to the Company, if (a) after the execution and delivery of
this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of the
New York Stock Exchange, the American Stock Exchange, the National Association
of Securities Dealers, Inc., the Chicago Board of Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities, or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in your judgment, is material and adverse and (b) in the case of any of
the events specified in clauses (a)(i) through (iv), such event singly or
together with any other such event makes it, in your judgment, impracticable to
market the Shares on the terms and in the manner contemplated in the Prospectus.
XI.
This Agreement shall become effective upon the later of (i) execution and
delivery hereof by the parties hereto and (ii) release of notification of the
effectiveness of the Registration Statement by the Commission.
If, on the Closing Date or the Option Closing Date, as the case may be, any
one or more of the Underwriters shall fail or refuse to purchase Shares that it
or they have agreed to purchase hereunder on such date, and the aggregate number
of Shares which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase is not more than one-tenth of the aggregate number of the
Shares to be purchased on such date, the other Underwriters shall be obligated
severally in the proportions that the number of Firm Shares set forth opposite
their respective names in Schedule I bears to the aggregate number of Firm
Shares set forth opposite the names of all such non-defaulting Underwriters, or
in such other proportions as you may specify, to purchase the Shares which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
on such date; PROVIDED, however, that in no event shall the number of Shares
that any Underwriter has agreed to purchase pursuant to Article III be increased
pursuant to this Article XI by an amount in excess of one-ninth of such number
of Shares without the written consent of such Underwriter. If, on the Closing
Date or the Option Closing Date, as the case may be, any Underwriter or
Underwriters shall fail or refuse to purchase Shares and the aggregate number of
Shares with respect to which such default occurs is more than one-tenth of the
aggregate number of Shares to be purchased on such date, and arrangements
satisfactory to you, the Company and Cadence for the purchase of such Shares are
not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter, the Company or
Cadence. In any such case either you or the relevant Sellers shall have the
right to postpone the Closing Date or the Option Closing Date, as the case may
be, but
-17-
in no event for longer than seven days, in order that the required changes, if
any, in the Registration Statement and in the Prospectus or in any other
documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of any Seller to comply with the
terms or to fulfill any of the conditions of this Agreement, or if for any
reason any Seller shall be unable to perform its obligations under this
Agreement, the Sellers will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
This Agreement may be signed in two or more counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument.
-18-
This Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York.
Very truly yours,
INTEGRATED MEASUREMENT SYSTEMS, INC.
By:
-------------------------------------
Xxxxx X. Xxxxxx
President and Chief Executive Officer
CADENCE DESIGN SYSTEMS, INC.
By:
-------------------------------------
H. Xxxxxxx Xxxxxxx
Chief Financial Officer
Accepted, February __, 1997
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXX & COMPANY
SOUNDVIEW FINANCIAL GROUP, INC.
Acting severally on behalf of
themselves and the several
Underwriters named herein.
By: XXXXXX XXXXXXX & CO. INCORPORATED
By:
----------------------------------
Xxxx X. Xxxxxxxxxxx
Principal
-19-
SCHEDULE I
Number of Firm Shares to be
Underwriter Purchased
--------------------------------- ---------------------------
Xxxxxx Xxxxxxx & Co. Incorporated [ ]
Xxxxx & Company [ ]
Soundview Financial Group, Inc. [ ]
------------
TOTAL. . . . . . . . . . . . . ------------
------------
