Exhibit 1.1
Duff & Phelps
Corporation
Class A Common Stock, par value
$.01
Underwriting
Agreement
May 13, 2009
As
representative of the several Underwriters
named in
Schedule I hereto
Duff & Phelps Corporation, a Delaware
corporation (the “ Company ”), proposes, subject
to the terms and conditions stated herein, to issue and sell to the
Underwriters named in Schedule I hereto (the “
Underwriters ”) an aggregate of 7,000,000 shares and,
at the election of the Underwriters, up to 1,050,000 additional
shares of Class A common stock, par value $.01 (“
Stock ”) of the Company. The 7,000,000
shares to be sold by the Company are herein called the “
Firm Shares ” and the additional shares to be sold by
the Company at the election of the Underwriters are herein called
the “ Optional Shares ”. The Firm
Shares and the Optional Shares that the Underwriters elect to
purchase pursuant to Section 3 hereof being collectively called the
“ Shares ”.
1. The Company represents and warrants to, and
agrees with, each of the Underwriters that:
(a) A registration statement on Form S-3 (File
No. 333-158739) (the “ Initial Registration Statement
”) in respect of the Shares has been filed with the
Securities and Exchange Commission (the “ Commission
”); the Initial Registration Statement and any post-effective
amendment thereto, each in the form heretofore delivered to you,
and, excluding exhibits thereto but including all documents
incorporated by reference in the prospectus contained therein, to
you for each of the other Underwriters, have been declared
effective by the Commission in such form; other than a registration
statement, if any, increasing the size of the offering (a “
Rule 462(b) Registration Statement ”), filed pursuant
to Rule 462(b) under the Securities Act of 1933, as amended (the
“ Act ”), which became effective upon filing, no
other document with respect to the Initial Registration Statement
or document incorporated by reference therein has heretofore been
filed with the Commission (other than prospectuses filed pursuant
to Rule 424(b) of the rules and regulations of the Commission under
the Act, each in the form heretofore delivered to the
Representative); and no stop order suspending the effectiveness of
the Initial Registration Statement, any post-effective amendment
thereto or the Rule 462(b) Registration Statement, if any, has been
issued and no proceeding for that purpose has been initiated or
threatened by the Commission (the base prospectus filed as part of
the Initial 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 relating to the Shares, 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 Act is hereinafter called a “ Preliminary
Prospectus ”; the various parts of the Initial
Registration Statement and the Rule 462(b) Registration Statement,
if any, including all exhibits thereto and including (i) any
prospectus supplement relating to the Shares that is filed with the
Commission and deemed by virtue of Rule 430B under the Act to be
part of the Initial Registration Statement at the time it was
declared effective and (ii) the documents incorporated by reference
in the prospectus, each as amended at the time such part of the
Initial Registration Statement became effective or such part of the
Rule 462(b) Registration Statement, if any, became or hereafter
becomes effective, are hereinafter collectively called the “
Registration Statement ”; the Basic Prospectus, as
amended and supplemented, immediately prior to the Applicable Time
(as defined in Section 1(c) hereof) 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 Act, in accordance
with Section 5(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, as of the date of such prospectus; 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 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 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 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 an Underwriter through
Goldman, Sachs & Co. expressly for use therein;
(c) For the purposes of this Agreement, the
“ Applicable Time ” is 8:45 a.m. (Eastern time)
on the date of this Agreement. The Pricing Prospectus as
supplemented by the Issuer Free Writing Prospectus set out on
Schedule II hereto, 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 II 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 and
the pricing information set out on Schedule III hereto 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; 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 an Underwriter through Goldman, Sachs & Co.
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 Act
or 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
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; 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 without providing
prior notice of such filing and its contents to the
Underwriters;
(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 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 an Underwriter through
Goldman, Sachs & Co. expressly for use therein;
(f) None of the Company, Duff & Phelps
Acquisitions, LLC (“ DPA LLC ”) or 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 Statement and the Pricing Prospectus, there has not
been any 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 taken as a whole, otherwise than
as set forth or contemplated in the Pricing Prospectus;
(g) Neither the Company nor any of its
subsidiaries own any real property. The Company and its
subsidiaries have good and marketable title to all personal
property owned by them, 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 materially
interfere with the use made and proposed to be made of such
property and buildings by the Company and its
subsidiaries;
(h) (i) The Company has been duly incorporated
and is validly existing as a corporation in good standing under the
laws of the State of Delaware, with 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, except where any such failure to be so
qualified and in good standing would not, individually or in the
aggregate have a material adverse effect on the condition
(financial or otherwise), earnings, business, properties, results
of operations or prospects of the Company and its subsidiaries
taken as a whole (a “ Material Adverse Effect
”); (ii) DPA LLC has been duly formed and is validly existing
as a limited liability company in good standing under the laws of
the State of Delaware, with limited liability company power and
authority to own its properties and conduct its business as
described in the Pricing Prospectus, and has been duly qualified as
a foreign company 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, except where any such failure to be so qualified and
in good standing would not, individually or in the aggregate, have
a Material Adverse Effect and (iii) each other subsidiary of the
Company has been duly incorporated, organized or formed and is
validly existing as a corporation, a limited liability company or a
limited company and, where applicable, in good standing, under the
laws of its jurisdiction of incorporation, organization or
formation, except where any such failure to be in good standing
would not, individually or in the aggregate, have a Material
Adverse Effect;
(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; all of the issued shares of capital
stock or the membership interests of each significant subsidiary
(as defined in Rule 1-02 of Regulation S-X) of the Company have
been duly and validly authorized and issued, are fully paid and
non-assessable and (except for directors’ qualifying shares
and except as otherwise set forth in the Pricing Prospectus) are
owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims; and all of the membership
interests of DPA LLC outstanding upon consummation of this offering
will have been duly authorized and validly issued and to the extent
owned by the Company, will be owned by it free and clear of all
liens, encumbrances, equities or claims;
(j) The Shares have been duly and validly
authorized and, when issued and delivered against payment therefor
as provided herein, will be duly and validly issued and fully paid
and non-assessable and will conform in all material respects to the
description of the Stock contained in the Prospectus;
(k) The issue and 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 breach or violation of any of the terms or provisions
of, or constitute a default under, (i) 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, (ii) the Amended and Restated Certificate of Incorporation
or the Amended and Restated By-laws of the Company, the Certificate
of Formation or limited liability company agreement of DPA LLC, or
other organizational documents of its subsidiaries, as applicable,
or (iii) 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, except in
the case of clauses (i) and (iii) for any such conflict, breach or
violation that would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect; and no
consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or
body is required for the issue and sale of the Shares or the
consummation by the Company of the transactions contemplated by
this Agreement, except the registration under the Act of the Shares
and 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 Underwriters;
(l) All corporate and limited liability company
approvals (including those of stockholders or members), and all
amendments of any limited liability agreements or other agreements
binding on the Company, DPA LLC or any of its affiliates, necessary
for the Company to consummate the transaction contemplated in this
Agreement have been obtained and to the Company’s knowledge
have not been revoked;
(m) Except as otherwise set forth in the
Pricing Prospectus, no holders of securities of, or other interests
in the Company have any preemptive rights to acquire any securities
of, or other interests in the Company, or any rights to the
registration of any securities or other interests under the
Registration Statement;
(n) None of the Company, DPA LLC or any of its
subsidiaries is (i) in violation of its Amended and Restated
Certificate of Incorporation or Amended and Restated By-laws (in
the case of the Company), Certificate of Formation or limited
liability company agreement (in the case of DPA LLC) or other
organizational documents, as applicable, or (ii) in default in the
performance or observance of any obligation, agreement, 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, except
in the case of clause (ii) for any default that would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect;
(o) The statements set forth in the Pricing
Prospectus and Prospectus under the caption “Description of
Capital Stock”, and insofar as they purport to constitute a
summary of the terms of the Stock, under the caption
“Material U.S. Federal Tax Consequences to Non-U.S.
Stockholders”, and under the caption
“Underwriting”, insofar as they purport to describe the
provisions of the laws and documents referred to therein, are
accurate, complete and fair in all material respects;
(p) Other than as set forth in the Pricing
Prospectus, 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; and, to the Company’s knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(q) Neither the Company nor DPA LLC is and,
after giving effect to the offering and sale of the Shares and the
application of the proceeds thereof, will be an “investment
company”, as such term is defined in the Investment Company
Act of 1940, as amended (the “ Investment Company Act
”);
(r) At the time of filing the Initial
Registration Statement the Company was not and is not an
“ineligible issuer,” as defined under Rule 405 under
the Act;
(s) KPMG LLP, who have certified certain
consolidated financial statements of the Company and its
subsidiaries, and have audited the Company’s internal control
over financial reporting and management’s assessment thereof,
are independent registered public accountants as required by the
Act and the rules and regulations of the Commission
thereunder;
(t) 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. 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;
(u) Since the date of the latest audited
financial statements included or incorporated by reference in the
Pricing 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;
and
(v) 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.
2. Subject to the terms and conditions herein
set forth, (a) the Company agrees to issue and sell to each of the
Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company, at a purchase price per
share of $14.0125, the number of Firm Shares as set forth opposite
the name of such Underwriter in Schedule I hereto and (b) in the
event and to the extent that the Underwriters shall exercise the
election to purchase Optional Shares as provided below, the Company
agrees to issue and sell to each of the Underwriters, and each of
the Underwriters agrees, severally and not jointly, to purchase
from the Company, at the purchase price per share set forth in
clause (a) of this Section 2, that portion of the number of
Optional Shares as to which such election shall have been exercised
(to be adjusted by you so as to eliminate fractional shares)
determined by multiplying such number of Optional Shares by a
fraction, the numerator of which is the maximum number of Optional
Shares which such Underwriter is entitled to purchase as set forth
opposite the name of such Underwriter in Schedule I hereto and the
denominator of which is the maximum number of Optional Shares that
all of the Underwriters are entitled to purchase
hereunder.
The Company hereby grants to the Underwriters
the right to purchase at their election up to 1,050,000 Optional
Shares, at the purchase price per share set forth in the paragraph
above, for the sole purpose of covering sales of shares in excess
of the number of Firm Shares, provided that the purchase price per
Optional Share shall be reduced by an amount per share equal to any
dividends or distributions declared by the Company and payable on
the Firm Shares but not payable on the Optional
Shares. Any such election to purchase Optional Shares
may be exercised only by written notice from Goldman, Sachs &
Co. to the Company, given within a period of 30 calendar days after
the date of this Agreement, setting forth the aggregate number of
Optional Shares to be purchased and the date on which such Optional
Shares are to be delivered, as determined by Goldman, Sachs &
Co. but in no event earlier than the First Time of Delivery (as
defined in Section 4 hereof) or, unless Goldman, Sachs & Co.
and the Company otherwise agree in writing, earlier than two or
later than ten business days after the date of such
notice.
3. Upon the authorization by you of the release
of the Firm Shares, the several Underwriters propose to offer the
Firm Shares for sale upon the terms and conditions set forth in the
Prospectus.
4. (a) The Shares to be purchased by each
Underwriter hereunder, and in such authorized denominations and
registered in such names as Goldman, Sachs & Co. may request
upon at least forty-eight hours’ prior notice to the Company
shall be delivered by or on behalf of the Company to Goldman, Sachs
& Co., through the facilities of the Depository Trust Company
(“ DTC ”), for the account of such Underwriter,
against payment by or on behalf of such Underwriter of the purchase
price therefor by wire transfer of Federal (same-day) funds to the
account specified by the Company to Goldman, Sachs & Co. at
least forty-eight hours in advance. The time and date of
such delivery and payment shall be, with respect to the Firm
Shares, 9:30 a.m., New York City time, on May 18, 2009 or such
other time and date as Goldman, Sachs & Co. and the Company may
agree upon in writing, and, with respect to the Optional Shares,
9:30 a.m., New York time, on the date specified by Goldman, Sachs
& Co. in the written notice given by Goldman, Sachs & Co.
of the Underwriters’ election to purchase such Optional
Shares, or such other time and date as Goldman, Sachs & Co. and
the Company may agree upon in writing. Such time and
date for delivery of the Firm Shares is herein called the “
First Time of Delivery ”, such time and date for
delivery of the Optional Shares, if not the First Time of Delivery,
is herein called the “ Second Time of Delivery
”, and each such time and date for delivery is herein called
a “ Time of Delivery ”.
(b) The documents to be delivered at each Time
of Delivery by or on behalf of the parties hereto pursuant to
Section 8 hereof, including the cross receipt for the Shares and
any additional documents requested by the Underwriters pursuant to
Section 8(l) hereof, will be delivered at the offices of Davis Polk
and Wardwell, 450 Lexington Avenue, New York, NY 10017 (the “
Closing Location ”), and the Shares will be delivered
through the facilities of DTC, all at such Time of
Delivery. A meeting will be held at the Closing Location
at 4:00 p.m., New York City time, on the New York Business Day next
preceding such Time of Delivery, at which meeting the final drafts
of the documents to be delivered pursuant to the preceding sentence
will be available for review by the parties hereto. For
the purposes of this Section 4, “ New York Business
Day ” shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking
institutions in New York City are generally authorized or obligated
by law or executive order to close.
5. The Company agrees with each of the
Underwriters:
(a) To prepare the Prospectus in a form approved
by you and to file such Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission’s close of business on
the second business day following the execution and delivery of
this Agreement, or, if applicable, such earlier time as may be
required by Rule 430A(a)(3) under the Act; to make no further
amendment or any supplement to the Registration Statement, the
Basic Prospectus or the Prospectus prior to the last Time of
Delivery which shall be disapproved by you promptly after
reasonable notice thereof unless in consultation with you after
reasonable notice, such amendment is required by law; to advise
you, promptly after it receives notice thereof, of the time when
any amendment to the Registration Statement has been filed or
becomes effective or any amendment
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