AMENDMENT NO. 1 TO AMENDED AND RESTATED IMPLEMENTATION AND STOCKHOLDER AGREEMENT
Exhibit
10.2
AMENDMENT
NO. 1
TO
AMENDED
AND RESTATED
AMENDMENT
NO. 1, dated as of June 11, 2009 (this "Amendment"), to the AMENDED AND RESTATED
IMPLEMENTATION AND STOCKHOLDER AGREEMENT, dated as of February 27, 2009 (the
"Original Agreement"), between BlackRock, Inc., a Delaware corporation, and The
PNC Financial Services Group, Inc., a Pennsylvania corporation
("PNC"). Capitalized terms used but not defined herein shall have the
meanings assigned to such terms in the Original Agreement.
WITNESSETH:
WHEREAS,
the parties hereto have entered into the Original Agreement; and
WHEREAS,
pursuant to and in accordance with Section 6.5 of the Original Agreement, the
parties wish to amend the Original Agreement as set forth in this
Amendment;
NOW,
THEREFORE, in consideration of the mutual promises and covenants set forth
herein and in the Original Agreement and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, and
intending to be legally bound, the parties hereby agree as follows:
ARTICLE I
AMENDMENTS
Section
1.1 Effectiveness
This Amendment shall become effective
only upon the Initial Closing (as defined in the Stock Purchase Agreement) of
that certain Stock Purchase Agreement by and among BARCLAYS PLC (solely for the
purposes of Section 6.16, Section 6.18 and Section 6.24), BARCLAYS BANK PLC
("Barclays") and BlackRock (the "Stock Purchase Agreement").
Section
1.2 Agreement
Whenever used in the Original Agreement
or this Amendment, the term "Agreement" shall hereinafter refer to the Original
Agreement, as amended by this Amendment.
Section
1.3 Certain
Definitions
The definitions of "Equivalent
Securities," "Participating Preferred Stock" and "Ownership Threshold" in
Section 1.1 of the Original Agreement is each amended and restated in its
entirety to read as follows:
""Equivalent
Securities" means at any time shares of any class of Capital Stock or other
securities or interests of a Person which are substantially equivalent to the
Voting Securities of such Person other than by reason of not having voting
rights, including, for the avoidance of doubt, the Series A Participating
Preferred Stock, Series B Participating Preferred Stock, Series C Participating
Preferred Stock and Series D Participating Preferred Stock."
"Ownership
Cap" means, at any time of determination, with respect to PNC and its
Affiliates, each of (i) 49.9 percent of the Total Voting Power of the Voting
Securities of BlackRock issued and outstanding at such time (such percentage,
the "Voting Ownership Cap") and (ii) 38.0 percent of the sum of the Voting
Securities and the Participating Preferred Stock of BlackRock issued and
outstanding at such time and issuable upon the exercise of any options or other
rights outstanding at that time which, if exercised, would result in the
issuance of additional Voting Securities or Participating Preferred Stock (the
"Total Ownership Cap"); provided, however, that for purposes of determining
whether PNC has met or exceeded the Ownership Cap, none of the BlackRock Capital
Stock acquired by PNC pursuant to the Securities Purchase Agreement entered into
between PNC and BlackRock in connection with the transactions contemplated by
the Stock Purchase Agreement (such Capital Stock, the "Transaction Shares")
shall be considered Beneficially Owned by PNC or its Affiliates.
"Ownership
Threshold" means, at any time of determination, with respect to PNC and its
Affiliates, 5 percent of the BlackRock Capital Stock issued and outstanding at
such time.
""Participating
Preferred Stock" means Series A Participating Preferred Stock, Series B
Participating Preferred Stock, Series C Participating Preferred Stock, Series D
Participating Preferred Stock and any other series of preferred stock of
BlackRock reasonably determined by the Board to have economic and other rights,
preferences and privileges substantially equivalent to that of the Series B
Participating Preferred Stock."
Section 1.1 of the Original Agreement
is amended to add the following definition:
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""Series
D Participating Preferred Stock" means the Series D Participating
Preferred Stock, par value $.01 per share, of BlackRock and any securities
issued in respect thereof, or in substitution therefor, or in substitution
therefor in connection with any stock split, dividend or combination, or
any reclassification, recapitalization, merger, consolidation, exchange or
other similar reorganization.
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Section
1.4 Transfer
Restrictions
A new Section 3.6 is hereby added to
Article III:
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Section
3.6 Transaction
Shares. None of the foregoing restrictions or limitations
contained in this Article III (including without limitation the right of last
refusal contained in Section 3.3) shall apply to any of the Transaction
Shares.
Section
1.5 Composition
of the Board
Section 4.1(a) is amended and restated
in its entirety to read as follows:
(a) Following the Closing, BlackRock and
PNC shall each use its best efforts to
cause the election at each meeting of stockholders of BlackRock of such nominees
reasonably acceptable to the Board such that there are no more than 19 Directors; there are not less than two and not more than four Directors who are members
of BlackRock management (each a "Management Designee"); there are two Directors, each in a
different class, who are individuals designated in writing to BlackRock
by PNC (each, a "PNC Designee"); there are two Directors, each in a
different class, who are individuals designated in writing to BlackRock by a
Person who is a Significant
Stockholder and has held such status since prior to the date of the Transaction Agreement (each, a "Significant Stockholder
Designee"); there are two Directors, each in a
different class, who are individuals designated in writing to BlackRock by
Barclays; provided, however, that if for any
period greater than 90 consecutive days PNC and its Affiliates shall Beneficially Own less
than 10% of the BlackRock Capital Stock issued and outstanding, PNC shall
promptly cause one of such PNC Designees to resign and the number of PNC Designees permissible hereunder
shall be reduced to one and; provided, further, that if for any period greater
than 90 consecutive
days PNC and its Affiliates
shall Beneficially Own less than 5% of the BlackRock Capital Stock issued and
outstanding PNC shall promptly cause a second PNC Designee to resign and the
number of PNC Designees
permissible hereunder shall be reduced to zero; and (iv) the remaining Directors
are Independent Directors.
Section 1.6 Termination
Section 6.2 is amended and restated in
it entirety to read as follows:
Except as otherwise provided in this
Agreement, this Agreement
shall terminate upon the later of (i) the five year anniversary of
this Agreement and (ii) the first date on which PNC and its
Affiliates Beneficially Own BlackRock Capital Stock representing less than
PNC's Ownership
Threshold (unless PNC
has, within ten Business Days of notice that it has fallen below such Ownership
Threshold, indicated its intent to increase its Beneficial Ownership above such
Ownership Threshold, and PNC in fact so increases such ownership in excess of
its Ownership Threshold within twenty Business Days
after such notice); provided, however, that in the case of a termination
pursuant to this Section 6.2, the obligations of the parties pursuant to Article
III, 4.2(c)(ii) and 4.8 hereof shall not terminate until the
first date on which PNC and its
Affiliates Beneficially Own BlackRock Capital Stock representing less than five
percent of the Total Voting Power of the BlackRock Capital Stock issued and
outstanding at such time. Nothing in this Section 6.2 shall be
deemed to release any party from any
liability for any willful and material breach of this Agreement occurring prior
to the termination hereof or to
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impair the right of any party to compel
specific performance by any other party of its obligations under this
Agreement.
ARTICLE II
REPRESENTATIONS AND
WARRANTIES
Section
2.1 PNC
Representations and Warranties.
PNC
represents and warrants to BlackRock as follows:
(a) Organizational
and Good Standing of PNC. PNC is a legal entity duly organized,
validly existing and in good standing under the laws of its jurisdiction of
organization and has the requisite power and authority to carry on its business
as currently conducted.
(b) Authorization;
Binding Obligations of PNC. PNC has full corporate power and authority
to execute and deliver this Amendment and to perform its obligations
hereunder. The execution, delivery and performance by PNC of this Amendment have been duly and
validly authorized and approved by all necessary corporate action on the part of
PNC. This Amendment has been
duly and validly executed
and delivered by PNC and (assuming due authorization,
execution and delivery by BlackRock) this Amendment constitutes a valid and
binding obligation of PNC, enforceable against it in accordance
with its terms, except as (a) the enforceability hereof and thereof may be limited by
bankruptcy, insolvency, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and (b) the
availability of equitable remedies may be limited by equitable principles of
general applicability.
Section
2.2 BlackRock
Representations and Warranties.
BlackRock hereby represents and warrants
to PNC as follows:
(a) Organizational
and Good Standing of the BlackRock. BlackRock is a corporation
duly organized, validly existing and in good standing under the laws of the State of Delaware. BlackRock has the requisite
corporate power and authority to carry on its business as currently
conducted.
(b) Authorization;
Binding Obligations of BlackRock. BlackRock has full
corporate power and authority to execute and deliver this Amendment and to perform its
obligations hereunder. The execution, delivery and performance by
BlackRock of this Amendment has been duly and validly authorized and approved by
all necessary corporate action of BlackRock. This Amendment has
been duly and validly executed and
delivered by BlackRock and (assuming due authorization, execution and delivery
by PNC) this Amendment constitutes, a valid
and binding obligation of BlackRock enforceable against it in accordance with
its terms, except as (a)
the enforceability hereof or thereof may be limited by bankruptcy, insolvency,
moratorium or other similar laws affecting the enforcement of
creditors' rights
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generally and (b) the availability of
equitable remedies may be limited by equitable principles of general
applicability.
ARTICLE III
MISCELLANEOUS
Section
3.1 Full Force
and Effect. Except as expressly amended by this
Amendment, the Original Agreement remains unchanged, and the Original Agreement,
as amended hereby, is hereby ratified, approved and confirmed in all
respects as the agreement
between PNC and BlackRock and shall remain in full
force and effect.
Section
3.2 Governing
Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of Delaware without giving effect to the principles
of conflicts of
law.
Section
3.3 Counterparts. This Amendment may be executed in separate counterparts
each of which shall be an original and all of which taken together shall
constitute one and the same agreement.
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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed on its behalf by an authorized officer as of the date first above
written.
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BLACKROCK,
INC.
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By:
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/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||
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Title:
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Managing
Director and Deputy
General
Counsel
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THE
PNC FINANCIAL SERVICES GROUP, INC.
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By:
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/s/
▇▇▇▇▇▇▇ ▇. Shack
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Name:
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▇▇▇▇▇▇▇ ▇. Shack | |||
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Title:
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Vice
Chairman
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