FIRST AMENDMENT TO THE EXCHANGE AGREEMENT BY AND AMONG DUFF & PHELPS ACQUISITIONS, LLC LOVELL MINNICK EQUITY PARTNERS LP VESTAR CAPITAL PARTNERS IV, L.P. VESTAR/D&P HOLDINGS LLC and the individual MEMBERS listed on the signature pages hereto Dated as...
FIRST
AMENDMENT TO THE
BY
AND AMONG
DUFF
& XXXXXX ACQUISITIONS, LLC
XX
XXXX HOLDINGS, LLC
XXXXXX
XXXXXXX EQUITY PARTNERS LP
VESTAR
CAPITAL PARTNERS IV, L.P.
VESTAR/D&P
HOLDINGS LLC
and
the
individual MEMBERS listed on the signature pages hereto
Dated
as of October 5, 2009
THIS
FIRST AMENDMENT TO THE EXCHANGE AGREEMENT (the "Amendment") is made and entered
into as of October 5, 2009, by and among Duff & Xxxxxx Acquisitions LLC
("DPA"), XX Xxxx Holdings, LLC and Xxxxxx Xxxxxxx Equity Partners LP
(collectively, "Xxxxxx Xxxxxxx"), Vestar Capital Partners IV, L.P. and
Vestar/D&P Holdings LLC (collectively, "Vestar"), and the other Members
listed on the signature pages hereto (collectively with DPA, Xxxxxx Xxxxxxx and
Vestar, the "Amending Members").
WHEREAS,
the Amending Members and certain other Members have entered into that certain
Exchange Agreement, dated as of October 3, 2007 (the "Agreement"), to provide
for the possible future exchange of New Class A Units for Class A Shares, on the
terms and subject to the conditions set forth therein;
WHEREAS,
each Member owns one or more New Class A Units and Class B Shares;
WHEREAS,
in accordance with Section 2.1(a)(v) of the Agreement, the independent directors
of Duff & Xxxxxx Corporation have approved this Amendment; and
WHEREAS,
in accordance with Section 3.10 of the Agreement, the Amending Members have
agreed to amend the Agreement as set forth herein.
Capitalized
terms used but not defined herein shall have the meanings assigned to them in
the Agreement.
NOW,
THEREFORE, in consideration of the mutual covenants and undertakings contained
herein and for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as
follows:
Section
1. Amendments.
(a) For
purposes of clarification and to avoid confusion, the references to "up to
thirty three and one-third percent (33 1/3%) of its vested Remaining Units" and
"up to, but not exceeding, sixty-six and two-third percent (66 2/3%) of its
vested Remaining Units" in Section 2.1(a)(i); and "up to twenty percent (20%) of
its vested Remaining Units", "up to, but not exceeding, forty percent (40%) of
its vested Remaining Units" and "up to, but not exceeding sixty percent (60%) of
its vested Remaining Units" in Section 2.1(a)(ii); shall be amended hereby to
replace, in each instance, the phrase "vested Remaining Units" with the phrase
"Remaining Units (to the extent vested)".
(b) Clause
(x) of Section 2.1(b)(i) of the Agreement shall hereby be amended and replaced
in its entirety as follows:
"(x)
March 5th, May 15th, August 15th and November 15th, in each case where an
Exchange Request has been timely delivered (or, if any such date is not a
Business Day, the first Business Day after such date) and"
(c) The
requirements in Section 2.1 of the Agreement to deliver an Exchange Request at
least 45 days in advance of Closing shall hereby be waived in respect of the
first Closing Date occurring after the effectiveness of this Amendment (the
"Initial Closing Date"). For the purposes of the Initial Closing
Date, notice shall be deemed to be timely delivered if given at least 30 days in
advance of such Initial Closing Date.
Section
2. Reference to
Agreement. Except as amended hereby, the Agreement is
reconfirmed in all respects and remains in full force and effect.
Section
3. Governing
Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO
CONFLICT OF LAWS PRINCIPLES THEREOF (OTHER THAN SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK).
Section
4. Counterparts. This
Amendment may be executed in one or more counterparts, each of which shall be
deemed an original and all of which shall, taken together, be considered one and
the same agreement, it being understood that all parties need not sign the same
counterpart.
Section
5. Effectiveness. This
Amendment shall become effective as of the day and year first above
written.
IN
WITNESS WHEREOF, the parties have caused this Amendment to be duly executed and
delivered, all as of the date first set forth above.
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DUFF
& XXXXXX ACQUISITIONS, LLC
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By: /s/ Xxxx
Xxxxxxxxxx
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Name:
Xxxx Xxxxxxxxxx
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Title: Chief
Executive Officer
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XX
XXXX HOLDINGS, LLC
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By:
Xxxxxx Xxxxxxx Equity Partners II LP, its Manager
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By:
Xxxxxx Xxxxxxx Equity Advisors II LLC, its General
Partner
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By:
Xxxxxx Xxxxxxx Partners LLC, its Managing Member
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By: /s/ Xxxxxx
Xxxxx
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Name:
Xxxxxx Xxxxx
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Title: Managing
Director
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XXXXXX
XXXXXXX EQUITY PARTNERS LP
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By:
Xxxxxx Xxxxxxx Equity Advisors LLC, its General Partner
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By:
Xxxxxx Xxxxxxx Partners LLC, its Managing Member
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By: /s/ Xxxxxx
Xxxxx
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Name: Xxxxxx
Xxxxx
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Title: Managing
Director
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VESTAR
CAPITAL PARTNERS IV, L.P.
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By:
Vestar Associates IV, L.P., its General Partner
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By:
Vestar Associates Corporation IV, its General Partner
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By: /s/ Xxxxxx Xxxx
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Name:
Xxxxxx Xxxx
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Title: Managing
Director
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VESTAR/D&P
HOLDINGS LLC
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By: /s/ Xxxxxx
Xxxx
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Name:
Xxxxxx Xxxx
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Title: Managing
Director
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INDIVIDUAL
MEMBERS OF DUFF & XXXXXX ACQUISITIONS, LLC
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By: /s/ Xxxx
Xxxxxxxxxx
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Name:
Xxxx Xxxxxxxxxx
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By: /s/ Xxxxxx
Xxxxxx
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Name:
Xxxxxx Xxxxxx
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By: /s/ Xxxxx
X. Xxxxxxxxx
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Name:
Xxxxx X. Xxxxxxxxx
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By: /s/ Xxxxx
X. Xxxxxxxx
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Name:
Xxxxx X. Xxxxxxxx
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By: /s/ Xxxxxx
X. Xxxxxx
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Name:
Xxxxxx X. Xxxxxx
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