Exhibit 1.1
ANSYS, INC.
Common Stock
(Par Value $0.01 Per Share)
UNDERWRITING AGREEMENT
Goldman, Sachs &
Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
Certain stockholders named in
Schedule II hereto (the “ Selling
Stockholders ”) of ANSYS, Inc., a Delaware corporation
(the “ Company ”), propose, subject to the
terms and conditions stated herein, to sell to Goldman,
Sachs & Co. (the “ Underwriter ”) an
aggregate of 3,350,356 shares (the “ Shares
”) of the Common Stock, par value $0.01 per share, of the
Company (the “ Stock ”).
1. The Company represents and
warrants to, and agrees with, the Underwriter that:
(a) An “ automatic shelf
registration statement ” as defined under Rule 405 under
the Securities Act of 1933, as amended (the “
Securities Act ”) on Form S-3ASR (File
No. 333-136332) in respect of the Shares has been filed with
the Securities and Exchange Commission (the “
Commission ”) not earlier than three years prior to
the date hereof; such registration statement, and any
post-effective amendment thereto, became effective on filing; and
no stop order suspending the effectiveness of such registration
statement or any part thereof has been issued and no proceeding for
that purpose has been initiated or threatened by the Commission,
and no notice of objection of the Commission to the use of such
registration statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Securities Act has been
received by the Company (the base prospectus filed as part of such
registration statement, in the form in which it has most recently
been filed with the Commission on or prior to the date of this
Agreement, is hereinafter called the “ Basic
Prospectus ;” any preliminary prospectus (including any
preliminary prospectus supplement) relating to the Shares filed
with the Commission pursuant to Rule 424(b) under the Securities
Act is hereinafter called a “ Preliminary Prospectus
;” the various parts of such registration statement,
including all exhibits thereto but excluding Form T-1 and including
any prospectus supplement relating to the Shares that is filed with
the Commission and deemed by virtue of Rule 430B to be part of such
registration
statement, each as amended at the
time such part of the registration statement became effective, are
hereinafter collectively called the “ Registration
Statement ;” the Basic Prospectus, as it may be amended
and supplemented immediately prior to the Applicable Time (as
defined below), is hereinafter called the “ Pricing
Prospectus ;” the form of the final prospectus relating
to the Shares filed with the Commission pursuant to Rule 424(b)
under the Securities Act in accordance with Section 6(a)
hereof is hereinafter called the “ Prospectus ;”
any reference herein to the Basic Prospectus, the Pricing
Prospectus, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the
Securities Act, as of the dates thereof, respectively; any
reference to any amendment or supplement to the Basic Prospectus,
any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include any post-effective amendment to the
Registration Statement, any prospectus supplement relating to the
Shares filed with the Commission pursuant to Rule 424(b) under the
Securities Act and any documents filed under the Securities
Exchange Act of 1934, as amended (the “ Exchange
Act ”), and incorporated therein, in each case after the
date of the Basic Prospectus, such Preliminary Prospectus, or the
Prospectus, as the case may be; any reference to any amendment to
the Registration Statement shall be deemed to refer to and include
any annual report of the Company filed pursuant to
Section 13(a) or 15(d) of the Exchange Act after the effective
date of the Registration Statement that is incorporated by
reference in the Registration Statement; and any “ issuer
free writing prospectus ” as defined in Rule 433 under
the Securities Act relating to the Shares is hereinafter called an
“ Issuer Free Writing Prospectus ;”
(b) No order preventing or
suspending the use of any Preliminary Prospectus or any Issuer Free
Writing Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in
all material respects to the requirements of the Securities Act and
the rules and regulations of the Commission thereunder, and did not
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, in the light of the circumstances under
which they were made, not misleading; provided ,
however , that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by
the Underwriter expressly for use therein;
(c) For the purposes of this
agreement (the “ Agreement ”), the “
Applicable Time ” is 4:30 p.m. (Eastern Time) on the
date of this Agreement. The Pricing Prospectus, as of the
Applicable Time, did not include any untrue statement of a material
fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading; and each Issuer Free Writing
Prospectus listed on Schedule III hereto does not
conflict with the information contained in the Registration
Statement, the Pricing Prospectus or the Prospectus; and each such
Issuer Free Writing Prospectus, as supplemented by and taken
together with the Pricing Prospectus as of the Applicable Time, did
not include any untrue statement of a material fact or omit to
state any material fact necessary in order to make the
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statements therein, in the light of
the circumstances under which they were made, not misleading;
provided , however , that this representation and
warranty shall not apply to statements or omissions made in an
Issuer Free Writing Prospectus in reliance upon and in conformity
with information furnished in writing to the Company by the
Underwriter expressly for use therein;
(d) The documents incorporated by
reference in the Pricing Prospectus and the Prospectus, when they
became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the
Securities Act and the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder, and none of such
documents 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 any
further documents so filed and incorporated by reference in the
Prospectus or any further amendment or supplement thereto, when
such documents become effective or are filed with the Commission,
as the case may be, will conform in all material respects to the
requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder and will not 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;
provided , however , that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in
writing to the Company by the Underwriter expressly for use
therein; and no such documents were filed with the Commission since
the Commission’s close of business on the business day
immediately prior to the date of this Agreement and prior to the
execution of this Agreement, except as set forth on
Schedule III hereto;
(e) The Registration Statement
conforms, and the Prospectus and any further amendments or
supplements to the Registration Statement and the Prospectus will
conform, in all material respects to the requirements of the
Securities Act and the rules and regulations of the Commission
thereunder, and do not and will not, as of the applicable effective
date (as to each part of the Registration Statement) and as of the
applicable filing date as to the Prospectus and any amendment or
supplement thereto 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;
provided , however , that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in
writing to the Company by the Underwriter expressly for use
therein;
(f) Neither the Company nor any of
its subsidiaries has sustained since the date of the latest audited
financial statements included or incorporated by reference in the
Pricing Prospectus any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or
not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth
or contemplated in the Pricing Prospectus; and, since the
respective dates as of which information is given in the
Registration
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Statement and the Pricing
Prospectus, there has not been any material change in the capital
stock or long term debt of the Company or any of its subsidiaries
or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general
affairs, management, financial position, stockholders’ equity
or results of operations of the Company and its subsidiaries,
otherwise than as set forth or contemplated in the Pricing
Prospectus;
(g) Except as provided in the Credit
Agreement dated as of May 1, 2006, among the Company,
each of the Subsidiary Guarantors (as defined in the Credit
Agreement (as defined below)) party thereto, any other Person (as
defined in the Credit Agreement) which may become a Subsidiary
Guarantor thereunder and Bank of America, N.A., as
administrative agent (the “ Credit Agreement ”),
the Company and its subsidiaries have good and marketable title in
fee simple to all real property and good and valid title to all
personal property owned by them, in each case free and clear of all
liens, encumbrances and defects, except such as are described in
the Pricing Prospectus or such as do not materially affect the
value of such property and do not interfere with the use made and
proposed to be made of such property by the Company and its
subsidiaries; and any real property and buildings held under lease
by the Company and its subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to be
made of such property and buildings by the Company and its
subsidiaries;
(h) 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 power and
authority (corporate and other) to own its properties and conduct
its business as described in the Pricing Prospectus, and has been
duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, or is subject to no
material liability or disability by reason of the failure to be so
qualified in any such jurisdiction; and each subsidiary of the
Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation;
(i) The Company has an authorized
capitalization as set forth in the Pricing Prospectus and all of
the issued shares of capital stock of the Company have been duly
and validly authorized and issued and are fully paid and
non-assessable and conform to the description of the Stock
contained in the Pricing Prospectus and Prospectus; and all of the
issued shares of capital stock of each subsidiary of the Company
have been duly and validly authorized and issued, are fully paid
and non-assessable and (except for directors’ qualifying
shares) are owned directly or indirectly by the Company, free and
clear of all liens, encumbrances, equities or claims;
(j) The sale of the Shares and the
compliance by the Company with this Agreement and the consummation
of the transactions herein contemplated will not conflict with or
result in a material breach or violation of any of the terms
or
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provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any
of its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject, nor
will such action result in any violation of the provisions of the
Certificate of Incorporation or By-laws of the Company or any
statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or
any of its subsidiaries or any of their properties; and no consent,
approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for
the sale of the Shares or the consummation by the Company of the
transactions contemplated by this Agreement, except such as have
been obtained under the Securities Act and except for such
consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue
Sky laws in connection with the purchase and distribution of the
Shares by the Underwriter;
(k) There are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or
any of its subsidiaries is the subject, which, if determined
adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on
the current or future consolidated financial position,
stockholders’ equity or results of operations of the Company
and its subsidiaries (each, a “ Material Adverse
Effect ”); and, to the best of the Company’s
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(l) Neither the Company nor any of
its subsidiaries is in violation of its Certificate of
Incorporation or By-laws or in default in the performance or
observance of any material obligation, covenant or condition
contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be
bound;
(m) The statements set forth in the
Pricing Prospectus and Prospectus under the captions
“Description of Common Stock,” “Registration
Rights of the Selling Stockholders” and “Plan of
Distribution,” insofar as they purport to constitute a
summary of the terms of the Stock and to describe the provisions of
the laws and documents referred to therein, are accurate, complete
and fair;
(n) The Company is not and, after
giving effect to the sale of the Shares and the application of the
proceeds thereof, will not be an “ investment
company ,” as such term is defined in the Investment
Company Act of 1940, as amended (the “ Investment
Company Act ”);
(o) Except with respect to each of
Fluent Inc., a Delaware corporation (the “
Acquired Company ”), and SAS IP, Inc., a
Wyoming corporation, the Company does not have any “
significant subsidiaries ” within the meaning of Rule
1-02(w) of Regulation S-X promulgated under the Securities
Act;
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(p) (A)(i) At the time of filing the
Registration Statement, (ii) at the time of the most recent
amendment thereto for the purposes of complying with
Section 10(a)(3) of the Securities Act (whether such amendment
was by post-effective amendment, incorporated report filed pursuant
to Section 13 or 15(d) of the Exchange Act or form of
prospectus), and (iii) at the time the Company or any person
acting on its behalf (within the meaning, for this clause only, of
Rule 163(c) under the Act) made any offer relating to the Shares in
reliance on the exemption of Rule 163 under the Act, the Company
was a “ well-known seasoned issuer ” as defined
in Rule 405 under the Act; and (B) at the earliest time after
the filing of the Registration Statement that the Company or
another offering participant made a bona fide offer (within
the meaning of Rule 164(h)(2) under the Act) of the Shares, the
Company was not an “ ineligible issuer ” as
defined in Rule 405 under the Act;
(q) Deloitte & Touche LLP,
independent registered public accountant firm, who have certified
certain financial statements of the Company and its subsidiaries,
and have audited the Company’s internal control over
financial reporting and management’s assessment thereof, and
Ernst & Young LLP, independent registered public
accountant firm, who have certified certain financial statements of
the Acquired Company (as defined below), are each independent
public accountants as required by the Securities Act and the rules
and regulations of the Commission thereunder;
(r) The Company maintains a system
of internal control over financial reporting (as such term is
defined in Rule 13a-15(f) under the Exchange Act) that complies
with the requirements of the Exchange Act and has been designed by
the Company’s principal executive officer and principal
financial officer, or under their supervision, to provide
reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting
principles. Except as disclosed in the Prospectus, the
Company’s internal control over financial reporting is
effective and the Company is not aware of any material weaknesses
in its internal control over financial reporting;
(s) Since the date of the latest
audited financial statements included or incorporated by reference
in the Prospectus, there has been no change in the Company’s
internal control over financial reporting that has materially
affected, or is reasonably likely to materially affect, the
Company’s internal control over financial
reporting;
(t) The Company maintains disclosure
controls and procedures (as such term is defined in Rule 13a-15(e)
under the Exchange Act) that comply with the requirements of the
Exchange Act; such disclosure controls and procedures have been
designed to ensure that material information relating to the
Company and its subsidiaries is made known to the Company’s
principal executive officer and principal financial officer by
others within those entities; and such disclosure controls and
procedures are effective;
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(u) The pro forma financial
statements and other pro forma financial information
included in the Registration Statement, the Pricing Prospectus and
the Prospectus present fairly in all material respects the
information shown therein, have been prepared in accordance with
the rules and guidelines of the Commission with respect to pro
forma financial statements, have been properly compiled on the
pro forma bases described therein, and, in the opinion of
the Company, the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give
effect to the transactions or circumstances referred to
therein;
(v) With respect to any “
non-GAAP financial measure ” (as such term is defined
by the rules and regulations of the Commission) included in the
Registration Statement, the Pricing Prospectus or the
Prospectus: (i) at the time such financial measure was
disclosed or released by the Company, such financial measure was
accompanied with (A) a presentation of the most directly
comparable financial measure of the Company, calculated and
presented in accordance with GAAP, and (B) a reconciliation
(by schedule or other clearly understandable method), which was
quantitative for each historical non-GAAP financial measure so
disclosed or released, and quantitative, to the extent available
without unreasonable efforts, for forward-looking information, of
the differences between such non-GAAP financial measure disclosed
or released with the most comparable financial measure or measures,
calculated and presented in accordance with GAAP;
and (ii) neither the Company nor any person acting on
behalf of the Company has made public a non-GAAP financial measure
that, taken together with the information accompanying such
non-GAAP financial measure and any other accompanying discussion of
such non-GAAP financial measure, contains an untrue statement of a
material fact or omits to state a material fact necessary in order
to make the presentation of such non-GAAP financial measure, in
light of the circumstances under which it is presented, not
misleading; and any such non-GAAP financial measures comply with
Regulation G of the Exchange Act and Item 10 of Regulation S-K
under the Securities Act, to the extent applicable; and
(w) Any summary and selected
consolidated financial data incorporated by reference into the
Registration Statement, the Pricing Prospectus and the Prospectus
presents fairly in all material respects the information shown
therein and such summary and selected consolidated financial data
has been compiled on a basis consistent with the financial
statements presented therein and the books and records of the
Company.
2. Each of the Selling Stockholders
severally represents and warrants to, and agrees with, the
Underwriter and the Company that:
(a) All consents, approvals,
authorizations and orders necessary for the execution and delivery
by such Selling Stockholder of this Agreement and for the sale and
delivery of the Shares to be sold by such Selling Stockholder
hereunder, have been obtained; and such Selling Stockholder has
full right, power and authority to enter into this
Agreement
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and to sell, assign, transfer and
deliver the Shares to be sold by such Selling Stockholder
hereunder;
(b) The sale of the Shares to be
sold by such Selling Stockholder hereunder and the compliance by
such Selling Stockholder with all of the provisions of this
Agreement and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach
or violation of any of the terms or provisions of, or constitute a
default under, any statute, indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which such
Selling Stockholder is a party or by which such Selling Stockholder
is bound or to which any of the property or assets of such Selling
Stockholder is subject, nor will such action result in any
violation of the provisions of the Partnership Agreement of such
Selling Stockholder or any statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction
over such Selling Stockholder or the property of such Selling
Stockholder;
(c) Such Selling Stockholder has,
and immediately prior to the Time of Delivery (as defined below)
such Selling Stockholder will have, good and valid title to the
Shares to be sold by such Selling Stockholder hereunder, free and
clear of all liens, encumbrances, equities or claims; and, upon
delivery of such Shares and payment therefor pursuant hereto, good
and valid title to such Shares, free and clear of all liens,
encumbrances, equities or claims, will pass to the
Underwriter;
(d) During the period beginning from
the date hereof and continuing to and including the date 60 days
after the date of the Prospectus (the initial “ Lock-Up
Period ”), not to offer, sell contract to sell or
otherwise dispose of, except as provided hereunder, any Stock or
any other securities of the Company that are substantially similar
to the Shares, including but not limited to any securities that are
convertible into or exchangeable for, or that represent the right
to receive, Stock or any such substantially similar securities
(other than pursuant to employee stock option plans existing on, or
upon the conversion or exchange of convertible or exchangeable
securities outstanding as of, the date of this Agreement), without
your prior written consent of the Underwriter;
(e) Such Selling Stockholder has not
taken and will not take, directly or indirectly, any action which
is designed to or which has constituted or which might reasonably
be expected to cause or result in stabilization or manipulation of
the price of any security of the Company to facilitate the sale or
resale of the Shares; and
(f) To the extent that any
statements or omissions made in the Registration Statement, the
Basic Prospectus, any Preliminary Prospectus, the Pricing
Prospectus, the Prospectus or any amendment or supplement thereto,
or any Issuer Free Writing Prospectus are made in reliance upon and
in conformity with written information furnished to the Company
by
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such Selling Stockholder expressly
for use therein, such Basic Prospectus, Preliminary Prospectus,
Pricing Prospectus, Prospectus and Issuer Free Writing Prospectus
and the Registration Statement did, and the Prospectus and any
further amendments or supplements to the Registration Statement and
the Prospectus, when they become effective or are filed with the
Commission, as the case may be, will conform in all material
respects to the requirements of the Securities Act and the rules
and regulations of the Commission thereunder and will not contain
any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make
the statements therein not misleading.
3. Subject to the terms and
conditions herein set forth, each of the Selling Stockholders
agree, severally and not jointly, to sell to the Underwriter, and
the Underwriter agrees to purchase from each of the Selling
Stockholders, at a purchase price per share
of $48.125, the number of Shares set forth opposite their
respective names in Schedule II hereto.
4. Upon the authorization by you of
the release of the Shares, the Underwriter proposes to offer the
Shares for sale upon the terms and conditions set forth in the
Prospectus.
5.
(a) The Shares to be purchased by
the Underwriter hereunder shall be delivered by or on behalf of the
Selling Stockholders to the Underwriter through the facilities of
the Depository Trust Company (“ DTC ”) for the
account of such Underwriter against payment by the Underwriter of
the purchase price therefor by wire transfer of Federal (same-day)
funds to the account specified by each of the Selling Stockholders,
as their interests may appear, to the Underwriter at least
forty-eight hours in advance. The Selling Stockholders will cause
the Shares to be delivered to Mellon Shareholder Services LLC,
the transfer agent of the Company, at least twenty-four hours prior
to the Time of Delivery (as defined below), and held therewith on
behalf of the Underwriter until delivery of the Shares to the
Underwriters as provided in this Agreement. The time and date of
such delivery and payment shall be 9:30 a.m., New York
City time, on November 21, 2006, or such other time and
date as the Underwriter and the Selling Stockholders may agree upon
in writing (the “ Time of Delivery
”).
(b) The documents to be delivered at
the Time of Delivery by or on behalf of the parties hereto pursuant
to Section 9 hereof, including the cross receipt for the
Shares and any additional documents requested by the Underwriter
pursuant to Section 9 hereof, will be delivered at the offices
of Latham & Watkins LLP, 505 Montgomery Street,
Suite 2000, San Francisco, California, counsel for the
Underwriter, (the “ Closing Location ”), and the
Shares will be delivered at the Designated Office, all at the Time
of Delivery. A meeting will be held at the Closing Location at 6:00
p.m., New
