STOCKHOLDER AGREEMENT AMONG BLACKROCK, INC., BARCLAYS BANK PLC AND BARCLAYS BR HOLDINGS S.À R.L. DATED AS OF DECEMBER 1, 2009
Exhibit
10.1
EXECUTION
COPY
AMONG
BLACKROCK,
INC.,
BARCLAYS
BANK PLC
AND
BARCLAYS
BR HOLDINGS S.À ▇.▇.
DATED
AS OF DECEMBER 1, 2009
Table
of Contents
Page
ARTICLE
I
DEFINITIONS
|
Section
1.1
|
Certain
Defined Terms
|
1
|
|
Section
1.2
|
Other
Defined Terms
|
7
|
|
Section
1.3
|
Other
Definitional Provisions
|
7
|
|
Section
1.4
|
Methodology
for Calculations
|
7
|
ARTICLE
II
SHARE
OWNERSHIP
|
Section
2.1
|
Acquisition
of Additional BlackRock Capital Stock
|
8
|
|
Section
2.2
|
Prohibition
of Certain Communications and Actions
|
10
|
|
Section
2.3
|
Purchases
of Additional Securities
|
11
|
|
Section
2.4
|
BlackRock
Share Repurchases
|
11
|
ARTICLE
III
TRANSFER
RESTRICTIONS
|
Section
3.1
|
General
Transfer Restrictions
|
12
|
|
Section
3.2
|
Restrictions
on Transfer
|
12
|
|
Section
3.3
|
Right
of First Refusal
|
14
|
|
Section
3.4
|
Legend
on Securities
|
15
|
ARTICLE
IV
CORPORATE
GOVERNANCE
|
Section
4.1
|
Composition
of the Board
|
15
|
|
Section
4.2
|
Vote
Required for Board Action; Board Quorum
|
16
|
|
Section
4.3
|
Committees
|
17
|
|
Section
4.4
|
Certificate
of Incorporation and Bylaws to be Consistent
|
17
|
|
Section
4.5
|
Information
Rights
|
17
|
|
Section
4.6
|
Voting
Agreements
|
18
|
|
Section
4.7
|
Related
Party Transactions
|
19
|
i
ARTICLE
V
MOST
FAVORED NATION
|
Section
5.1
|
Most
Favored Nation
|
19
|
ARTICLE
VI
MISCELLANEOUS
|
Section
6.1
|
Conflicting
Agreements
|
19
|
|
Section
6.2
|
Termination
|
19
|
|
Section
6.3
|
Ownership
Information
|
20
|
|
Section
6.4
|
Savings
Clause
|
20
|
|
Section
6.5
|
Amendment
and Waiver
|
20
|
|
Section
6.6
|
Severability
|
20
|
|
Section
6.7
|
Entire
Agreement
|
20
|
|
Section
6.8
|
Successors
and Assigns
|
21
|
|
Section
6.9
|
Counterparts
|
21
|
|
Section
6.10
|
Remedies
|
21
|
|
Section
6.11
|
Notices
|
21
|
|
Section
6.12
|
Governing
Law; Consent to Jurisdiction
|
23
|
|
Section
6.13
|
Interpretation
|
23
|
ii
STOCKHOLDER
AGREEMENT, dated as of December 1, 2009, among BlackRock, Inc., a Delaware
corporation ("BlackRock"), Barclays Bank PLC, a corporation organized under the
laws of England and Wales ("Barclays"), and Barclays BR Holdings S.à ▇.▇., a
société à responsabilité
limitée organized under the laws of Luxembourg ("BR Holdings" and,
together with Barclays, the "Barclays Parties").
WHEREAS,
BlackRock, Barclays and Barclays PLC are parties to a Stock Purchase Agreement,
dated as of June 16, 2009 (as amended from time to time, the "SPA"), pursuant to
which BlackRock is acquiring all of the issued and outstanding equity interests
in the Transferred Entities (as such term is defined in the SPA) directly and
indirectly owned by Barclays in exchange for shares of BlackRock Common Stock
(as defined herein), Series B Participating Stock (as defined herein) and Series
D Participating Preferred Stock (as defined herein);
WHEREAS,
upon the Closing (as such term is defined in the SPA) under the SPA, the
Barclays Parties will Beneficially Own (as defined herein) up to 19.9% of the
issued and outstanding BlackRock Capital Stock (as defined herein);
WHEREAS,
it is a condition to the obligations of each of BlackRock and Barclays to
consummate the transactions contemplated by the SPA that this Agreement shall
have been duly executed and delivered by BlackRock, the Barclays Parties and any
appropriate Affiliate; and
WHEREAS,
the parties hereto desire to enter into this Agreement to establish certain
arrangements with respect to the shares of BlackRock Capital Stock to be
Beneficially Owned by the Barclays Parties following the Closing, as well as
restrictions on certain activities in respect of BlackRock Capital Stock,
corporate governance and other related corporate matters;
NOW,
THEREFORE, in consideration of the premises and of the mutual covenants and
obligations hereinafter set forth, the parties hereto hereby agree as
follows:
ARTICLE
I
DEFINITIONS
Section
1.1 Certain Defined
Terms. As
used herein, the following terms shall have the following meanings:
"Affiliate"
means, with respect to any Person, any other Person that directly, or indirectly
through one or more intermediaries, controls, is controlled by or is under
common control with, such specified Person; provided, however, that solely
for purposes of this Agreement, notwithstanding anything to the contrary set
forth herein, neither BlackRock nor any of its Controlled Affiliates shall be
deemed to be a Subsidiary or Affiliate of any Barclays Party solely by virtue of
the Beneficial Ownership by any Barclays Party of BlackRock Capital
Stock,
the
election of Directors nominated by any Barclays Party to the Board, the election
of any other Directors nominated by the Board or any other action taken by any
Barclays Party in accordance with the terms and conditions of, and subject to
the limitations and restrictions set forth on such Person in, this Agreement
(and irrespective of the characteristics of the aforesaid relationships and
actions under applicable law or accounting principles).
"Agreement"
means this Stockholder Agreement as it may be amended, supplemented, restated or
modified from time to time.
"Beneficial
Ownership" by a Person of any securities includes ownership by any Person who,
directly or indirectly, through any contract, arrangement, understanding,
relationship or otherwise, has or shares (i) voting power which includes the
power to vote, or to direct the voting of, such security; and/or (ii) investment
power which includes the power to dispose, or to direct the disposition, of such
security; and shall otherwise be interpreted in accordance with the term
"beneficial ownership" as defined in Rule 13d-3 adopted by the Commission under
the Exchange Act; provided that for
purposes of determining Beneficial Ownership, a Person shall be deemed to be the
Beneficial Owner of any securities which may be acquired by such Person pursuant
to any agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or otherwise
(irrespective of whether the right to acquire such securities is exercisable
immediately or only after the passage of time, including the passage of time in
excess of 60 days, the satisfaction of any conditions, the occurrence of any
event or any combination of the foregoing), except that in no event will any
Barclays Party be deemed to Beneficially Own any securities which it has the
right to acquire pursuant to Section 2.3 unless, and then only to the extent
that, it shall have actually exercised such right. For purposes of
this Agreement, a Person shall be deemed to Beneficially Own any securities
Beneficially Owned by its Affiliates (including as Affiliates for this purpose
its officers and directors only to the extent they would be Affiliates solely by
reason of their equity interest) or any Group of which such Person or any such
Affiliate is or becomes a member; provided, however, that
securities Beneficially Owned by the Barclays Parties shall not include, for any
purpose under this Agreement, any Voting Securities or other securities held by
such Persons and their Affiliates in trust, managed, brokerage, custodial,
nominee or other customer accounts; in trading, inventory, lending or similar
accounts of such Persons and their Affiliates which are broker-dealers or
otherwise engaged in the securities business; or in pooled investment vehicles
sponsored, managed and/or advised or subadvised by such Persons and their
Affiliates except, if they Beneficially Own more than 25% of the ownership
interests in a pooled investment vehicle, to the extent of their ownership
interests therein; provided that in each
case, such securities were acquired in the ordinary course of business of their
securities business and not with the intent or purpose of influencing control of
BlackRock or avoiding the provisions of this Agreement. The term
"Beneficially Own" shall have a correlative meaning.
"Board"
means the Board of Directors of BlackRock.
"Business
Day" shall mean any day that is not a Saturday, a Sunday or other day on which
banks are required or authorized by law to be closed in New York, New York or
London, England.
2
"By
Laws" means the By-Laws of BlackRock, as amended or supplemented from time to
time.
"Capital
Stock" means, with respect to any Person at any time, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of capital stock, partnership interests (whether general
or limited) or equivalent ownership interests in or issued by such
Person.
"Commission"
means the United States Securities and Exchange Commission.
"Common
Stock" means the shares of Common Stock, par value $0.01 per share, of BlackRock
and any securities issued in respect thereof, or in substitution therefor, in
connection with any stock split, dividend or combination, or any
reclassification, recapitalization, merger, consolidation, exchange or other
similar reorganization.
"control"
(including the terms "controlled by" and "under common control with"), with
respect to the relationship between or among two or more Persons, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the affairs or management of a Person, whether through the
ownership of voting securities, as trustee or executor, by contract or any other
means, or otherwise to control such Person within the meaning of such term as
used in Rule 405 under the Securities Act. For purposes of this
definition, a general partner or managing member of a Person shall always be
considered to control such Person provided, however, that a
Person shall not be treated as having any control over any collective investment
vehicle to which it provides services unless it and its Affiliates collectively
have a proprietary economic interest exceeding 25% of the equity interest in
such collective investment vehicle.
"Controlled
Affiliate" of any Person means a Person that is directly or indirectly
controlled by such other Person.
"Director"
means any member of the Board (other than any advisory, honorary or other
non-voting member of the Board).
"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 with respect to BlackRock, 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.
"Exchange
Act" means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated by the Commission from time to time thereunder (or under
any successor statute).
“Executive
Officer” has the meaning assigned to it, from time to time, in Federal Reserve
Regulation “O”, 12 CFR 215.2(e)(1).
"Fair
Market Value" means, as to any securities or other property, the cash price at
which a willing seller would sell and a willing buyer would buy such securities
or property in
3
an
arm's length negotiated transaction without time constraints. With
respect to any securities that are traded on a national securities exchange,
Fair Market Value shall mean the arithmetic average of the closing prices of
such securities on their principal market for the ten consecutive trading days
immediately preceding the applicable date of determination and with respect to
shares of Participating Preferred Stock of any series shall be the same price
per share as the Fair Market Value per share of the Common Stock. The
Fair Market Value of any property or assets, other than securities described in
the preceding sentence, with an estimated value of less than 1% of the Fair
Market Value of all of the issued and outstanding BlackRock Capital Stock shall
be determined by the Board (acting through a majority of the Independent
Directors) in its good faith judgment. The Fair Market Value of all
other property or assets shall be determined by an Independent Investment
Banking Firm, selected by a majority of the Independent Directors, whose
determination shall be final and binding on the parties hereto. The
fees and expenses of such Independent Investment Banking Firm shall be paid by
BlackRock.
"Group"
shall have the meaning assigned to it in Section 13(d)(3) of the Exchange
Act.
"Independent
Director" means any Director who (i) is or would be an "independent director"
with respect to BlackRock pursuant to Section 303A.02 of the New York Stock
Exchange Listed Company Manual (or any successor provision) and (ii) was not
nominated or proposed for nomination by or on behalf of Barclays, any
Significant Stockholder, or any Affiliates or Designated Directors of a Barclays
Party or a Significant Stockholder.
"Independent
Investment Banking Firm" means an investment banking firm of nationally
recognized standing that in the reasonable judgment of the Person or Persons
engaging such firm, taking into account any prior relationship with Barclays,
any Significant Stockholder or BlackRock, is independent of such Person or
Persons.
"Ownership
Cap" means, at any time of determination, with respect to the Barclays Parties
and their Affiliates (and for purposes of (iii) and (iv) below all directors and
Executive Officers of Barclays and its Affiliates), each of (i) 4.9 percent of
the Total Voting Power of the Voting Securities of BlackRock issued and
outstanding at such time (the "Voting Ownership Cap"), (ii) 19.9 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"), (iii) 24.9 percent of any class of
Voting Securities of BlackRock issued and outstanding at such time, (the “Class
Ownership Cap”), and (iv) 24.9 percent of the sum of the aggregate number of
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
“Aggregate Ownership Cap”).
"Ownership
Percentage" means, with respect to any Person, at any time, the quotient,
expressed as a percentage, of (i) with respect to the Voting Ownership Cap (A)
the Total Voting Power of all Voting Securities of another Person Beneficially
Owned by such Person and its Affiliates divided by (B) the Total Voting Power of
all Voting Securities of such
4
other
Person issued and outstanding at that time, (ii) with respect to the Total
Ownership Cap, (A) the Total Voting Power of all Voting Securities and the total
number of Equivalent Securities of another Person Beneficially Owned by such
Person and its Affiliates divided by (B) the Total Voting Power of all Voting
Securities and the total number of Equivalent Securities of such other Person
issued and outstanding at that 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 Equivalent Securities,
(iii) with respect to the Class Ownership Cap (A) the Total Voting Power of any
class of Voting Securities of another Person Beneficially Owned by such Person,
its Affiliates and its and any of its Affiliates’ Executive Officers and
directors divided by (B) the Total Voting Power of such class of Voting
Securities of such other Person issued and outstanding at that time, and (iv)
with respect to the Aggregate Ownership Cap, (A) the Total Voting Power of all
Voting Securities and the total number of Equivalent Securities of another
Person Beneficially Owned by such Person, its Affiliates and its and any of its
Affiliates’ Executive Officers and directors divided by (B) the Total Voting
Power of all Voting Securities and the total number of Equivalent Securities of
such other Person issued and outstanding at that 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
Equivalent Securities.
"Ownership
Threshold" means, at any time of determination, with respect to the Barclays
Parties and their Affiliates, 5 percent of the sum of the Voting Securities of
BlackRock and Participating Preferred Stock of BlackRock 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 determined by the Board to have economic participation in BlackRock's
assets, earnings and distributions substantially equivalent to that of the
Series B Participating Preferred Stock.
"Person"
means any individual, corporation, limited liability company, limited or general
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization, other entity, government or any agency or political
subdivision thereof or any Group comprised of two or more of the
foregoing.
"Securities
Act" means the Securities Act of 1933, as amended, and the rules and regulations
promulgated by the Commission from time to time thereunder (or under any
successor statute).
"Series
A Participating Preferred Stock" means the Series A 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.
"Series
B Participating Preferred Stock" means the Series B Convertible 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
5
stock
split, dividend or combination, or any reclassification, recapitalization,
merger, consolidation, exchange or other similar reorganization.
"Series
C Participating Preferred Stock" means the Series C Convertible 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.
"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.
"Significant
Stockholder" means, at any time of determination, any Person other than the
Barclays Parties and their Affiliates that Beneficially Owns 20 percent or more
of the BlackRock Capital Stock issued and outstanding at such time.
"Subsidiary"
means, with respect to any Person, any corporation or other organization,
whether incorporated or unincorporated, (i) of which such Person or any other
Subsidiary of such Person is a general partner (excluding partnerships, the
general partnership interests of which held by such Person or any Subsidiary of
such Person do not have a majority of the voting or similar interests in such
partnership), or (ii) at least a majority of the securities or other interests
of which having by their terms ordinary voting power to elect a majority of the
board of directors or others performing similar functions with respect to such
corporation or other organization is directly or indirectly owned or controlled
by such Person or by any one or more of its Subsidiaries, or by such Person and
one or more of its Subsidiaries.
"Total
Voting Power" means the total number of votes entitled to be cast by the holders
of the outstanding Capital Stock and any other securities entitled, in the
ordinary course, to vote on matters put before the holders of the Capital Stock
generally.
"Transfer"
means, directly or indirectly, to sell, transfer, assign, pledge, encumber,
hypothecate or similarly dispose of (by operation of law or otherwise), either
voluntarily or involuntarily, or to enter into any contract, option or other
arrangement or understanding with respect to the sale, transfer, assignment,
pledge, encumbrance, hypothecation or similar disposition of (by operation of
law or otherwise), any Capital Stock or any interest in any Capital Stock; provided, however, that a
merger, amalgamation, plan of arrangement or consolidation or similar business
combination transaction in which Barclays is a constituent corporation (or
otherwise a party including, for the avoidance of doubt, a transaction pursuant
to which a Person acquires all or a portion of Barclays' outstanding Capital
Stock, whether by tender or exchange offer, by share exchange, or otherwise)
shall not be deemed to be the Transfer of any BlackRock Capital Stock
Beneficially Owned by the Barclays Parties, provided that the
primary purpose of any such transaction is not to avoid the provisions of this
Agreement and that the successor or surviving person to such a merger,
amalgamation, plan of arrangement or consolidation or similar business
combination transaction, if not Barclays, expressly assumes all obligations
of
6
Barclays
under this Agreement. For purposes of this Agreement, the term
Transfer shall include the sale of an Affiliate of any Barclays Party or any
Barclays Party's interest in an Affiliate which Beneficially Owns BlackRock
Capital Stock unless such Transfer is in connection with a merger, amalgamation,
plan of arrangement or consolidation or similar business combination transaction
referred to in the first proviso of the previous sentence.
"Voting
Securities" means at any time shares of any class of Capital Stock or other
securities or interests of a Person which are then entitled to vote generally,
and not solely upon the occurrence and during the continuation of certain
specified events, in the election of Directors or Persons performing a similar
function with respect to such Person, and any securities convertible into or
exercisable or exchangeable at the option of the holder thereof for such shares
of Capital Stock.
Section
1.2 Other Defined
Terms. The
following terms shall have the meanings defined for such terms in the Sections
set forth below:
|
TERM
|
SECTION
|
|
Additional
BlackRock Stock Purchase
|
Section
2.3
|
|
BlackRock
|
Preamble
|
|
BlackRock
Party
|
Section
3.3(a)
|
|
Barclays
|
Preamble
|
|
Barclays
Designee
|
Section
4.1(a)
|
|
BR
Holdings
|
Preamble
|
|
DGCL
|
Section
1.4
|
|
Last
Look Price
|
Section
3.2(b)
|
|
Litigation
|
Section
6.11(a)
|
|
Management
Designee
|
Section
4.1(a)
|
|
Offer
|
Section
3.3(a)
|
|
Offer
Notice
|
Section
3.3(a)
|
|
Prohibited
Actions
|
Section
2.2(h)
|
|
Related
Person
|
Section
4.7
|
|
Significant
Stockholder Designee
|
Section
4.1(a)
|
|
SPA
|
Preamble
|
|
Stock
Issuance
|
Section
2.3
|
|
Subject
Capital Stock
|
Section
3.3(a)
|
|
Transaction
Agreement
|
Section
2.1(d)
|
Section
1.3 Other Definitional
Provisions. The
words "hereof", "herein" and "hereunder" and words of similar import when used
in this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement, and Article and Section references are
to this Agreement unless otherwise specified.
The
meanings given to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms.
Section
1.4 Methodology for
Calculations. For
purposes of calculating the number of outstanding shares of BlackRock Capital
Stock or Voting Securities and the number
7
of
shares of BlackRock Capital Stock or Voting Securities Beneficially Owned by any
Person as of any date, any shares of BlackRock Capital Stock or Voting
Securities held in BlackRock's treasury or belonging to any Subsidiaries of
BlackRock which are not entitled to be voted or counted for purposes of
determining the presence of a quorum pursuant to Section 160(c) of the Delaware
General Corporation Law (or any successor statute) (the "DGCL") shall be
disregarded.
ARTICLE
II
SHARE
OWNERSHIP
Section
2.1 Acquisition of Additional
BlackRock Capital Stock.
(a) Except
as provided in paragraph (b) below each Barclays Party covenants and agrees with
BlackRock that it shall not, and shall not permit any of its Affiliates to,
directly or indirectly, acquire, offer or propose to acquire or agree to
acquire, whether by purchase, tender or exchange offer, through the acquisition
of control of another Person (whether by way of merger, consolidation or
otherwise), by joining a partnership, syndicate or other Group or otherwise, the
Beneficial Ownership of any additional BlackRock Capital Stock, if after giving
effect to such acquisition or action, the Barclays Parties would Beneficially
Own BlackRock Capital Stock representing more than any of the Voting Ownership
Cap, the Total Ownership Cap or, together with the Executive Officers and
directors of the Barclays Parties and their Affiliates, the Class Ownership Cap
or the Aggregate Ownership Cap; provided, that neither the Class Ownership Cap
nor the Aggregate Ownership Cap permit the Barclays Parties and their Affiliates
to exceed the Voting Ownership Cap or the Total Ownership Cap.
(b) Notwithstanding
the first paragraph of Section 2.1(a), the acquisition (whether by merger,
consolidation, exchange of equity interests, purchase of all or part of the
equity interests or assets or otherwise) by any Barclays Party or an Affiliate
thereof of any Person that Beneficially Owns BlackRock Capital Stock, or the
acquisition of BlackRock Capital Stock in connection with securing or collecting
a debt previously contracted in good faith in the ordinary course of such
Barclays Party's or such Affiliate's banking, brokerage or securities
businesses, shall not constitute a violation of the Ownership Cap; provided that (i) the
primary purpose of any such transaction is not to avoid the provisions of this
Agreement, including the Ownership Cap, and (ii) in the case of an acquisition
of another Person, it uses reasonable best efforts to negotiate terms in
connection with the relevant acquisition agreement requiring such other Person
to divest itself of sufficient BlackRock Capital Stock it Beneficially Owns so
that the Voting Ownership Cap and the Total Ownership Cap would not be exceeded
pro forma for the acquisition, with such divestiture to be effected concurrently
with, or as promptly as practicable following, the consummation of such
acquisition (but in no event more than 120 days following such consummation, or
such longer period not in excess of 243 days following such consummation as may
be necessary due to the possession of material non-public information or so that
neither it nor any of its Affiliates incurs any liability under Section 16(b) of
the Exchange Act if, for purposes of Section 16(b), they have not acquired
Beneficial Ownership of any other shares of BlackRock Capital Stock or
derivatives thereof after the date of the transaction that resulted in the
Barclays Parties exceeding the Ownership Cap) and the successor or surviving
Person to such transaction, if not such Barclays Party or such Affiliate,
expressly assumes all
8
obligations
of such Barclays Party or such Affiliate, as the case may be, under this
Agreement; and provided, further, that the
provisions of paragraph (c) below are complied with.
(c) (i) If
at any time the Barclays Parties and their Affiliates Beneficially Own in the
aggregate BlackRock Capital Stock representing more than any of the Voting
Ownership Cap, the Total Ownership Cap or, together with the Executive Officers
and directors of the Barclays Parties and their Affiliates, the Class Ownership
Cap or the Aggregate Ownership Cap, then the Barclays Parties shall, as soon as
is reasonably practicable (but in no event longer than 120 days after their
Ownership Percentage first exceeds the Voting Ownership Cap, the Total Ownership
Cap, the Class Ownership Cap or the Aggregate Ownership Cap or such longer
period not in excess of 243 days following such consummation as may be necessary
due to the possession of material non-public information or so that neither any
Barclays Party nor any of its Affiliates incurs any liability under Section
16(b) of the Exchange Act if, for purposes of Section 16(b), they have not
acquired Beneficial Ownership of any other shares of BlackRock Capital Stock or
derivatives thereof after the date of the transaction that resulted in the
Barclays Parties exceeding the Ownership Cap) Transfer (in any manner that would
be permitted by Section 3.2(b) after the lapse of any minimum holding period) a
number of shares of BlackRock Capital Stock sufficient to reduce the amount of
BlackRock Capital Stock Beneficially Owned by them and their Affiliates to an
amount representing not greater than the Ownership Cap; provided, however, that subject
to the Total Ownership Cap and in lieu of such Transfer, each Barclays Party
shall have the right exercisable in whole or in part, to exchange, or cause
BlackRock to exchange, a number of shares of BlackRock Common Stock for Series B
Preferred Stock so that the amount of Voting Securities Beneficially Owned by
the Barclays Parties and their Affiliates, following such exchange, shall be
reduced to an amount representing not greater than the Voting Ownership
Cap.
(ii) Notwithstanding
any other provision of this Agreement, in no event may any Barclays Party or any
of its Affiliates, directly or indirectly, including through any agreement or
arrangement, exercise any voting rights, during the term of this Agreement, in
respect of any BlackRock Capital Stock Beneficially Owned by the Barclays
Parties and their Affiliates representing in excess of the Voting Ownership Cap,
the Class Ownership Cap or the Aggregate Ownership Cap.
(d) Any
additional BlackRock Capital Stock acquired and Beneficially Owned by Barclays
or any of its Affiliates following the Closing shall be subject to the
restrictions contained in this Agreement as fully as if such shares of BlackRock
Capital Stock were acquired by it at or prior to the Closing.
(e) In
addition to the limitations provided in Section 2.1(a), each Barclays Party
shall not and shall cause its Affiliates not to acquire Beneficial Ownership of
any shares of BlackRock Capital Stock from any Person other than BlackRock or a
Significant Stockholder (other than pursuant to an acquisition effected in a
manner contemplated by Section 2.1(b)) if after giving effect to such
acquisition the Barclays Parties, together with their Affiliates, would
Beneficially Own BlackRock Capital Stock representing more than 90 percent of
the Voting Ownership Cap or the Total Ownership Cap.
9
Section
2.2 Prohibition of Certain Communications and
Actions. Each
Barclays Party shall not and shall cause its Affiliates and its and their
directors, officers and other agents acting on their behalf not to, (w) solicit,
seek or offer to effect, or effect, (x) negotiate with or provide any
information to the Board, any director or officer of BlackRock, any stockholder
of BlackRock, any employee or union or other labor organization representing
employees of BlackRock or any other Person with respect to, (y) make any
statement or proposal, whether written or oral, either alone or in concert with
others, to the Board, any director or officer of BlackRock or any stockholder
of, any employee or union or other labor organization representing employees of
BlackRock or any other Person with respect to, or (z) make any public
announcement (except as required by law in respect of actions permitted hereby)
or proposal or offer whatsoever (including, but not limited to, any
"solicitation" of "proxies" as such terms are defined or used in Regulation 14A
under the Exchange Act) with respect to:
(a) any
acquisition, offer to acquire, or agreement to acquire, directly or indirectly,
by purchase or any other action the purpose or result of which would be to
Beneficially Own (i) BlackRock Capital Stock or Voting Securities of any
successor to or person in control of BlackRock in an amount which, when added to
any other BlackRock Capital Stock then Beneficially Owned by the Barclays
Parties and their Affiliates would cause the total amount of BlackRock Voting
Securities Beneficially Owned by the Barclays Parties to exceed the Voting
Ownership Cap or the Total Ownership Cap, (ii) any equity securities of any
Controlled Affiliate of BlackRock, (in each case except to the extent such
acquisition, offer or agreement would be permissible under Section
2.1),
(b) any
form of business combination or similar or other extraordinary transaction
involving BlackRock or any Controlled Affiliate thereof, including, without
limitation, a merger, tender or exchange offer or sale of any substantial
portion of the assets of BlackRock or any Controlled Affiliate of
BlackRock,
(c) any
form of restructuring, recapitalization or similar transaction with respect to
BlackRock or any Controlled Affiliate of BlackRock,
(d) any
purchase of any assets, or any right to acquire any asset (through purchase,
exchange, conversion or otherwise), of BlackRock or any Controlled Affiliate of
BlackRock, other than investment assets of BlackRock or any Controlled Affiliate
of BlackRock in the ordinary course of its banking, brokerage or securities
business and other than an insubstantial portion of such assets in the ordinary
course of business,
(e) being
a member of a Group for the purpose of acquiring, holding or disposing of any
shares of BlackRock Capital Stock or any Controlled Affiliate of
BlackRock,
(f) selling
any share of BlackRock Capital Stock in an unsolicited tender offer that is
opposed by the Board,
(g) any
proposal to seek representation on the Board except as contemplated by this
Agreement or, other than as permitted by the proviso to Section 4.6(a) of this
Agreement, any proposal to seek to control or influence the management, Board or
policies of BlackRock or any Controlled Affiliate of BlackRock, or
10
(h) encourage,
join, act in concert with or assist (including, but not limited to, providing or
assisting in any way in the obtaining of financing for, or acting as a joint or
co-bidder with) any third party to do any of the foregoing (the actions referred
to in the foregoing provisions of this sentence being referred to as "Prohibited
Actions").
Nothing
in this Section 2.2 shall limit the ability of any Director, including any
Barclays Designee, to vote or otherwise participate in deliberations of the
Directors in his or her capacity as a Director in such manner as he or she sees
fit. The parties agree that notwithstanding the terms of this
Agreement, this Agreement shall not prohibit any Barclays Party from engaging in
any activity previously approved by the Board.
Section
2.3 Purchases of Additional
Securities. At
any time that BlackRock effects an issuance (a "Stock Issuance") of additional
Voting Securities or Equivalent Securities other than in connection with any
employee restricted stock, stock option, incentive or other benefit plan to any
Person or Persons other than any Barclays Party or any Affiliate thereof, each
Barclays Party shall, subject to Section 2.1, have the right to purchase from
BlackRock (in each instance, an "Additional BlackRock Stock Purchase") (i)
additional shares of Participating Preferred Stock such that following such
Stock Issuance and such purchase the Barclays Parties and their Affiliates will
Beneficially Own shares and/or other securities representing the lesser of (A)
the Total Ownership Cap and (B) the same Ownership Percentage of the Total
Ownership Cap as they Beneficially Owned immediately prior to such Stock
Issuance and (ii) if the total of all Stock Issuances including the Stock
Issuance in question since the Closing has the effect, after taking into account
any repurchases of BlackRock Capital Stock by BlackRock since the Closing and
any Transfers of BlackRock Capital Stock by the Barclays Parties and their
Affiliates (other than Transfers to Affiliates), of decreasing the Total Voting
Power of BlackRock Capital Stock issued and outstanding after giving effect to
such Stock Issuance Beneficially Owned by the Barclays Parties and their
Affiliates to 90% or less of the Voting Ownership Cap, additional Voting
Securities of the same class or series issued in the Stock Issuance such that
following such Stock Issuance and such purchase the Barclays Parties and their
Affiliates will Beneficially Own shares and/or other securities representing the
lesser of (x) the Voting Ownership Cap and (y) the same Ownership Percentage of
the Voting Ownership Cap as the Barclays Parties and their Affiliates
Beneficially Owned immediately prior to such Stock Issuance. If any
Barclays Party exercises such right within 30 days after the pricing date of
such Stock Issuance and if the purchaser or purchasers of Voting Securities in
such Stock Issuance pays cash in consideration for such securities, such
Barclays Party shall pay or cause to be paid an equal per security amount of
cash consideration in the Additional BlackRock Stock Purchase following such
Stock Issuance. In all other cases, the price that a Barclays Party
shall pay to purchase the additional securities shall be the Fair Market Value
per unit of the class or series of securities. BlackRock shall give
each Barclays Party written notice of any Stock Issuance as far in advance as
practicable and on the date of completion.
Section
2.4 BlackRock Share
Repurchases. If
BlackRock engages in any share repurchase program or self-tender that has the
effect of causing the Barclays Parties' Beneficial Ownership of BlackRock
Capital Stock to exceed the Voting Ownership Cap or the Total Ownership Cap,
subject to any restrictions in the Exchange Act, (a) the Barclays Parties shall,
at the written request of BlackRock, promptly sell such number of shares of
BlackRock Capital Stock to BlackRock as shall cause the Barclays Parties'
Beneficial Ownership of BlackRock
11
Capital
Stock not to exceed the Voting Ownership Cap or the Total Ownership Cap; provided, however, that,
subject to the Total Ownership Cap and in lieu of such sale, each Barclays Party
shall have the right, exercisable in whole or in part, to exchange, or cause
BlackRock to exchange, a number of shares of BlackRock Common Stock for Series B
Preferred Stock so that the amount of Voting Securities Beneficially Owned by
the Barclays Parties and their Affiliates, following such exchange, shall be
reduced to an amount representing not greater than the Voting Ownership Cap; or
(b) BlackRock shall, at the written request of any Barclays Party, promptly
purchase such number of shares of BlackRock Capital Stock from such Barclays
Party as shall cause the Barclays Parties’ Beneficial Ownership of BlackRock
Capital Stock not to exceed the Voting Ownership Cap or the Total Ownership
Cap. Notwithstanding anything in this Section 2.4 to the contrary,
the Barclays Parties shall not be obligated to sell any shares of BlackRock
Capital Stock pursuant to this Section 2.4 if such sale is capable of being
exempted under Rule 16b-3 under the Exchange Act (or any successor rule), until
BlackRock has taken all necessary action to exempt such sale
thereunder.
ARTICLE
III
TRANSFER
RESTRICTIONS
Section
3.1 General Transfer
Restrictions. The
right of the Barclays Parties and their Affiliates to Transfer any BlackRock
Capital Stock is subject to the restrictions set forth in this Article III, and
no Transfer of BlackRock Capital Stock by any Barclays Party or any of its
Affiliates may be effected except in compliance with this Article
III. Any attempted Transfer in violation of this Agreement shall be
of no effect and null and void, regardless of whether the purported transferee
has any actual or constructive knowledge of the Transfer restrictions set forth
in this Agreement, and shall not be recorded on the stock transfer books of
BlackRock.
Section
3.2 Restrictions on
Transfer.
(a) Without
the prior written consent of BlackRock (acting through a majority of the
Independent Directors), which shall not unreasonably be withheld conditioned or
delayed, during an initial period of 12 months commencing at the Closing with
respect to 100% of the shares of BlackRock Capital Stock acquired from BlackRock
and during a period of 12 months commencing on the first anniversary of the
Closing with respect to 50% of the shares of BlackRock Capital Stock acquired
from BlackRock, the Barclays Parties shall not, and shall not permit their
Affiliates to, Transfer any Beneficially Owned BlackRock Capital Stock or agree
to Transfer, directly or indirectly, any Beneficially Owned BlackRock Capital
Stock; provided
that the foregoing restriction shall not prohibit any Barclays Party or any of
its Affiliates from Transferring any Beneficially Owned BlackRock Capital Stock
(i) to BlackRock pursuant to Section 2.4 or (ii) to an Affiliate of such
Barclays Party that agrees in writing with BlackRock to be bound by this
Agreement as fully as if it were an initial signatory hereto.
(b) Following
the lapse of restrictions on any shares of BlackRock Capital Stock pursuant to
Section 3.2(a), the Barclays Parties shall not, and shall not permit their
Affiliates to, Transfer any Beneficially Owned BlackRock Capital Stock or agree
to Transfer,
12
directly
or indirectly, any Beneficially Owned BlackRock Capital Stock; provided that the
foregoing restriction shall not be applicable to Transfers of shares as to which
such restrictions have lapsed in accordance with any of the
following:
(i) to
an Affiliate of any Barclays Party which agrees in writing with BlackRock to be
bound by this Agreement as fully as if it were an initial signatory
hereto;
(ii) pursuant
to the restrictions of Rule 144 under the Securities Act applicable to sales of
securities by Affiliates of an issuer (regardless of whether any Barclays Party
is deemed at such time to be an Affiliate of BlackRock) to any Person who, to
the knowledge of the Barclays Parties, pursuant to such Transfer would not be
acquiring BlackRock Capital Stock representing in the aggregate more than 2% of
the Total Voting Power of BlackRock Capital Stock issued and
outstanding;
(iii) pursuant
to privately negotiated transactions, in each calendar quarter in an amount not
in excess (together with Transfers pursuant to Section 3.2(b)(ii) and (iv)
during such calendar quarter) of 4.5% of the sum of the Voting Securities of
BlackRock and the Participating Preferred Stock of BlackRock issued and
outstanding in one or more transactions to any Person who, to the knowledge of
the Barclays Parties, pursuant to such Transfer would not be acquiring BlackRock
Capital Stock representing in the aggregate more than 2% of the Total Voting
Power of BlackRock Capital Stock issued and outstanding and who after giving
effect to such Transfer would not Beneficially Own BlackRock Capital Stock
representing in the aggregate more than 5% of the Total Voting Power of
BlackRock Capital Stock issued and outstanding; provided, that a Barclays Party
or the Affiliate proposing to Transfer pursuant to this Section 3.2(b)(iii)
promptly provide to BlackRock written notice required under Section 3.3 and
otherwise comply with Section 3.3;
(iv) in
each calendar quarter, in an amount not in excess (together with Transfers
pursuant to Section 3.2(b)(ii) and (iii)) of 4.5% of the sum of the Voting
Securities of BlackRock and the Participating Preferred Stock of BlackRock
issued and outstanding, pursuant to a distribution to the public, registered
under the Securities Act, in which a Barclays Party uses its commercially
reasonable efforts to (A) effect as wide a distribution of such BlackRock
Capital Stock as is reasonably practicable, and (B) not knowingly sell BlackRock
Capital Stock to any Person who pursuant to such offering would be acquiring
BlackRock Capital Stock representing in the aggregate more than 2% of the Total
Voting Power of BlackRock Capital Stock issued and outstanding or who after
consummation of such offering would Beneficially Own BlackRock Capital Stock
representing in the aggregate more than 5% of the Total Voting Power of
BlackRock Capital Stock issued and outstanding; or
(v) with
the prior written consent of a majority of the Independent Directors; provided,
however, that no consent provided by the Independent Directors shall permit any
Barclays Party to effect a Transfer to any Person who such Barclays Party knows
will pursuant to such Transfer be acquiring BlackRock Capital stock representing
in the aggregate more than 2% of the Total Voting Power of BlackRock Capital
Stock issued and outstanding.
(c) Subject
to Sections 3.2(a) and (b), if any Barclays Party wishes or is required to
Transfer an amount of BlackRock Capital Stock constituting more than 10% of
the
13
Total
Voting Power of BlackRock Capital Stock issued and outstanding after giving
effect to such Transfer, such Barclays Party shall coordinate with BlackRock
regarding optimizing the manner of distribution and sale of such shares,
including whether such sale should occur through an underwritten offering, and
shall cooperate in the marketing of any such offering.
(d) In
addition to the other restrictions set forth in this Section 3.2, the Barclays
Parties shall not sell or transfer any shares of BlackRock Capital Stock to any
Person (other than an Affiliate), if following such sale or transfer, the
Barclays Parties would have sold or transferred in the aggregate, since the date
hereof, Beneficial Ownership of 331/3% or
more of the Voting Securities of BlackRock (as calculated for purposes of this
Section 3.2(d)). The percentage provided in this Section 3.2(d) shall
be calculated as follows:
(i) The
numerator is the total number of shares of the Voting Securities and the
Participating Preferred Stock of BlackRock Beneficially Owned by the Barclays
Parties on the date hereof which a Barclays Party has subsequently sold or
transferred to a Person (other than an Affiliate) plus the number of such shares
that the Barclays Party proposes to sell or transfer, divided by:
(ii) the
denominator is the total number of the Voting Securities of BlackRock issued and
outstanding at the time of the proposed sale or transfer plus the Participating
Preferred Stock of BlackRock Beneficially Owned by the Barclays Parties at the
time of the proposed sale or transfer.
(e) Each
Barclays Party shall reimburse BlackRock for any documented fees and expenses
incurred in connection with any Transfer by such Barclays Party pursuant to this
Section 3.2 (other than any Transfer pursuant to Sections 3.3(a) and
3.3(b)).
Section
3.3 Right of First
Refusal.
(a) If
either Barclays Party desires at any time to sell any or all of its BlackRock
Capital Stock (the "Subject Capital Stock") to a third party in a privately
negotiated transaction, such Barclays Party shall deliver a written notice (the
“Offer Notice”) to BlackRock within five days of receipt of an offer to purchase
the Subject Capital Stock in a privately negotiated transaction (the
"Offer"). The Offer Notice shall specify all of the material terms of
the Offer, including the number of shares of Subject Capital Stock, the proposed
purchase price, the name and address of the third party and any copies of any
agreements or documents to be executed or delivered in connection with the
Offer, if available at that time. BlackRock shall have the option
(exercisable by written notice to such Barclays Party given within 10 days after
receipt of the Offer Notice from such Barclays Party) to purchase all (but not
less than all) of the Subject Capital Stock at the same price and on the same
terms as specified in the Offer Notice.
(b) If
BlackRock does not elect to purchase all of the Subject Capital Stock, the
Barclays Parties may within 60 days from the date on which BlackRock received
the applicable Offer Notice, sell the Specified Capital Stock upon the same
terms and conditions of the Offer.
(c) The
closing of any purchase of the Subject Capital Stock by BlackRock under this
Section 3.3 shall be held at a place and date specified by BlackRock, but not
more
14
than
10 days following the delivery of the written acceptance by BlackRock of the
Offer Notice or, if later, five days after receipt of all required regulatory
approvals (but in no event more than 60 days following the delivery of the
written notice of acceptance by BlackRock of the Offer).
Section
3.4 Legend on
Securities.
(a) Each
certificate representing shares of BlackRock Capital Stock Beneficially Owned by
any Barclays Party or any of its Affiliates and subject to the terms of this
Agreement shall bear the following legend on the face thereof:
"THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON
TRANSFER AND CERTAIN OTHER LIMITATIONS SET FORTH IN A CERTAIN STOCKHOLDER
AGREEMENT, DATED AS OF DECEMBER 1, 2009, BETWEEN BLACKROCK, INC. (THE
"COMPANY"), BARCLAYS BANK PLC AND BARCLAYS BR HOLDINGS S.À ▇.▇. AS THE SAME MAY
BE AMENDED FROM TIME TO TIME (THE "AGREEMENT"), COPIES OF WHICH AGREEMENT ARE ON
FILE AT THE PRINCIPAL OFFICE OF THE COMPANY."
(b) Upon
any acquisition by any Barclays Party or any of its Affiliates of additional
shares of BlackRock Capital Stock, such Barclays Party shall, or shall cause
such Affiliate to, submit the certificates representing such shares of BlackRock
Capital Stock to BlackRock so that the legend required by this Section 3.4 may
be placed thereon (if not so endorsed upon issuance).
(c) BlackRock
may make a notation on its records or give instructions to any transfer agents
or registrars for BlackRock Capital Stock in order to implement the restrictions
on Transfer set forth in this Agreement.
(d) In
connection with any Transfer of shares of Beneficially Owned BlackRock Capital
Stock, the transferor shall provide BlackRock with such customary certificates,
opinions and other documents as BlackRock may reasonably request to assure that
such Transfer complies fully with this Agreement and with applicable securities
and other laws. In connection with any Transfer pursuant to Section
3.2(b)(ii), (iii) or (iv), BlackRock shall remove such portion of the foregoing
legend as is appropriate in the circumstances.
ARTICLE
IV
CORPORATE
GOVERNANCE
Section
4.1 Composition of the
Board.
(a) Following
the Closing, BlackRock and the Barclays Parties shall each use its reasonable
best efforts to cause the election at each meeting of stockholders of BlackRock
of such nominees reasonably acceptable to the Board such that (i) there are no
more than 19 Directors; (ii) there are not less than two and not more than four
Directors who are members of BlackRock management (each a "Management
Designee"); (iii) there are two Directors, each in
15
a
different class, who are individuals designated in writing to BlackRock by the
Barclays Parties (each, a "Barclays Designee"), provided, however, that if for
any period greater than 90 consecutive days the Barclays Parties and their
Affiliates shall Beneficially Own less than 10% of the BlackRock Capital Stock
issued and outstanding, the Barclays Parties shall promptly cause one of such
Barclays Designees to resign and the number of Barclays Designees permissible
hereunder shall be reduced to one and; provided, further, that if for
any period greater than 90 consecutive days the Barclays Parties and their
Affiliates shall Beneficially Own less than 5% of the BlackRock Capital Stock
issued and outstanding, the Barclays Parties shall promptly cause a second
Barclays Designee to resign and the number of Barclays Designees permissible
hereunder shall be reduced to zero; (iv) there are two Directors, each in a
different class, who are individuals designated in writing to BlackRock by each
Person who is a Significant Stockholder and has held such status since prior to
the date of the SPA (each, a "Significant Stockholder Designee"); and
(v) the remaining Directors are Independent Directors.
(b) Following
the Closing, upon the resignation, retirement or other removal from office of
any Management Designee or Barclays Designee (i) BlackRock or a Barclays Party,
as the case may be, shall be entitled promptly to designate a replacement
Management Designee or Barclays Designee, as the case may be, who meets the
qualifications of a Director and is reasonably acceptable to the Board and (ii)
BlackRock and the Barclays Parties shall each use its reasonable best efforts to
cause the appointment or election of such replacement designee as a Director by
the other Directors or by the stockholders of BlackRock.
Section
4.2 Vote Required for Board
Action; Board Quorum.
(a) Except
as provided in this Section 4.2 and in Section 4.7, any determination or other
action of or by the Board (other than action by unanimous written consent in
lieu of a meeting) shall require the affirmative vote or consent, at a meeting
at which a quorum is present, of a majority of directors present at such
meeting.
(b) In
addition to the requirements of Section 4.2(a), BlackRock shall not enter into
any agreement providing for, or effectuate any of the following transactions
without the prior written approval of Barclays:
(i) any
amendment, modification, repeal or waiver of BlackRock's Certificate of
Incorporation or By-Laws that would in any material respect adversely alter or
change the powers or preferences of the shares of any class of BlackRock Capital
Stock held by any Barclays Party;
(ii) any
settlement or consent in a regulatory enforcement matter that would be
reasonably likely, in the opinion of counsel to Barclays, to cause Barclays or
any of its Affiliates to suffer (A) any regulatory disqualification, (B)
suspension of registration or license or (C) other material adverse regulatory
consequence (which approval may not be unreasonably withheld in the case of this
clause (C)); provided, however, that Barclays shall not be entitled to exercise
any rights under this Section 4.2(b)(ii) if neither of the Significant
Stockholders possesses comparable rights; or
16
(iii) any
voluntary bankruptcy or similar filing or declaration by BlackRock.
(c) A
quorum for any meeting of the Board shall require the presence of a majority of
the total number of Directors then in office.
Section
4.3 Committees. To
the extent permitted by applicable laws, rules and regulations (including any
requirements under the Exchange Act or the rules of the New York Stock Exchange
or any other applicable securities exchange on which the Common Stock is then
listed) and except as otherwise determined by the Board (in accordance with
Section 4.2) each committee of the Board shall consist of a majority of
Independent Directors, the Audit Committee, the Compensation Committee and, to
the extent required by applicable laws, rules and regulations and
self-regulatory organization requirements, the Nominating Committee shall
consist entirely of Independent Directors and the Executive Committee shall
consist of not less than five members of which one shall be a Barclays
Designee. Subject to Sections 4.2 and 4.7 all decisions of such
committees shall require the affirmative vote of a majority of the Directors
then serving on such committee.
Section
4.4 Certificate of Incorporation
and Bylaws to be Consistent. Each
of BlackRock and the Barclays Parties shall use its reasonable best efforts to
take or cause to be taken all lawful action necessary or appropriate to ensure
that at all times the Certificate of Incorporation and the By-laws of BlackRock
contain provisions consistent with the terms of this Agreement (including
without limitation this Article IV) and none of the Certificate of Incorporation
or the By-laws of BlackRock or any of the corresponding constituent documents of
BlackRock's Subsidiaries contain any provisions inconsistent therewith or which
would in any way nullify or impair the terms of this Agreement or the rights of
BlackRock or any Barclays Party hereunder. Neither BlackRock nor any
Barclays Party shall take or cause to be taken any action inconsistent with the
terms of this Agreement (including without limitation this Article IV) or the
rights of BlackRock or any Barclays Party hereunder.
Section
4.5 Information
Rights.
(a) BlackRock
acknowledges that the investments of each Barclays Party in BlackRock are
material and strategic to it. Accordingly, BlackRock shall provide to each
Barclays Party, on an ongoing and current basis, such access to and information
with respect to BlackRock's business, operations, plans and prospects as either
of them may from time to time reasonably determine it requires in order to
appropriately manage and evaluate its investment in BlackRock.
(b) To
the extent required in order for any Party to comply with applicable law,
BlackRock and Barclays will work together in good faith to develop appropriate
protocols for each to share with the other aggregate security position
information for use in their respective compliance programs.
(c) With
respect to any information provided by BlackRock:
(i) Subject
to the requirements of law (including the regulations of any applicable stock
exchange), the Barclays Parties shall keep confidential, and shall cause
their
17
representatives
to keep confidential, all information and documents obtained pursuant to this
Section 4.5 unless such information (w) is or becomes publicly available other
than as a result of a breach of this Section 4.5(c) by it or its
representatives; (x) was within its possession prior to being furnished to it by
or on behalf of BlackRock, provided that the
source of such information was not known by it to be bound by a confidentiality
agreement with, or other contractual or legal obligation of confidentiality to,
BlackRock with respect to such information; (y) is or becomes available to such
Person or any of its representatives on a non-confidential basis from a source
other than BlackRock or any of its representatives; provided that such
source was not known to it to be bound by a confidentiality agreement with, or
other contractual or legal obligation of confidentiality to, BlackRock with
respect to such information; or (z) is independently developed by or on its
behalf without violating any of its obligations under this Section
4.5(c).
(ii) In
the event any Barclays Party believes that it is legally required to disclose
any information or documents contemplated by this Section 4.5(c), it shall to
the extent possible under the circumstances provide reasonable prior notice to
BlackRock so that BlackRock may, at its own expense, seek a protective order or
otherwise take reasonable steps to protect the confidentiality of such
information.
(iii) Notwithstanding
the foregoing, no Barclays Party may disclose any information or documents
contemplated by this Section 4.5(c) in a filing with a governmental authority to
the extent required by applicable law, provided that it
shall to the extent practicable under the circumstances provide prior notice to
BlackRock.
(iv) The
rights of each Barclays Party and the obligations of BlackRock hereunder shall
be subject to applicable laws relating to the exchange of information and other
applicable laws. The provisions of this Section 4.5(c) shall survive
any termination of this Agreement.
Section
4.6 Voting
Agreements.
(a) Each
Barclays Party shall, and shall cause any of its Affiliates, to vote or act by
written consent all of the shares of BlackRock Capital Stock Beneficially Owned
by it (i) in favor of each matter required to effectuate any provision of this
Agreement and against any matter the approval of which would be inconsistent
with any provision of this Agreement and (ii) to the extent consistent with
clause (i) above, in accordance with the recommendation of the Board on all
matters approved by the Board in accordance with the provisions of Article IV,
including elections of Directors; provided, however, that if the
Board shall either fail to nominate for election as a Director either or both of
two individuals designated by any Barclays Party who are reasonably acceptable
to the Board, or shall unreasonably reject one or more Barclays Designees who is
otherwise eligible to serve, then, so long as such individuals otherwise meet
the requirements for serving as a Director of BlackRock, the Barclays Parties
and their Affiliates shall have the right to nominate such individuals at the
applicable meeting of stockholders and to solicit proxies for the election of
such individuals and, if such individuals are nominated at such meeting, may
vote all of their shares of BlackRock Capital Stock entitled to vote on such
matter in favor of the election of such individuals.
18
(b) Each
Barclays Party shall, and shall cause each of its Affiliates who hold BlackRock
Capital Stock entitled to vote on any matter, be present in person or
represented by proxy at all meetings of securityholders of BlackRock to the
extent necessary so that all Voting Securities Beneficially Owned by the
Barclays Parties and their Affiliates shall be counted as present for the
purpose of determining the presence of a quorum at such meeting and to vote such
shares in accordance with this Section 4.6.
Section
4.7 Related Party
Transactions. Neither
BlackRock nor any of its Controlled Affiliates shall enter into or effectuate
any transaction or agreement with any Barclays Party or any of its Affiliates or
any director, officer or employee of such Barclays Party or any such Affiliate
(each a "Related Person") that is material to BlackRock, unless such transaction
or agreement is in effect at the time of the Closing, relates to transactions by
or on behalf of clients of BlackRock and its Controlled Affiliates in the
ordinary course of business or has been approved by or is consistent with or
pursuant to the terms of a policy, transaction or agreement (or form of
agreement) approved by, the affirmative vote or consent of a majority of the
Directors, excluding the Barclays Designees, present at a meeting at which a
quorum is present.
ARTICLE
V
MOST FAVORED
NATION
Section
5.1 Most Favored
Nation. In
the event that BlackRock amends, modifies or waives (as distinct from a consent
or approval provided for therein) any provision of, or enters into, a
stockholder agreement between BlackRock and a Significant Stockholder that
involves the grant of rights to a Significant Stockholder that are superior,
taking into account the impact of differences in levels of shareholding,
regulatory status, noncompetition provisions and other similar matters (the
"Contractual Superior Rights"), to those belonging to any Barclays Party under
this Agreement, BlackRock shall offer each Barclays Party the opportunity to
obtain such Contractual Superior Rights. BlackRock shall notify each
Barclays Party prior to the time such rights become effective and shall afford
it the opportunity for at least 20 days determine whether or not it wishes to
obtain such Contractual Superior Rights.
ARTICLE
VI
MISCELLANEOUS
Section
6.1 Conflicting
Agreements. Each
party represents and warrants that it has not granted and is not a party to any
proxy, voting trust or other agreement that is inconsistent with or conflicts
with any provision of this Agreement.
Section
6.2 Termination. Except
as otherwise provided in this Agreement, this Agreement shall terminate on the
later of the five year anniversary of the Closing and the first date on which
the Barclays Parties and their Affiliates Beneficially Own BlackRock Capital
Stock representing less than the Ownership Threshold. Nothing in this
Section 6.2 shall be deemed to release any party from any liability for any
willful and material breach of this
19
Agreement
occurring prior to the termination hereof or to impair the right of any party to
compel specific performance by any other party of its obligations under this
Agreement.
Section
6.3 Ownership
Information.
(a) For
purposes of this Agreement, all determinations of the amount of outstanding
BlackRock Capital Stock shall be based on information set forth in the most
recent quarterly or annual report, and any current report subsequent thereto,
filed by BlackRock with the Commission, unless BlackRock shall have updated such
information by delivery of written notice to each Barclays Party.
(b) If
at any time or from time to time BlackRock becomes aware of any event that has
caused, or which could reasonably be expected to cause, Beneficial Ownership by
the Barclays Parties and their Affiliates of BlackRock Capital Stock to increase
above the Ownership Cap, BlackRock shall promptly (but in no event more than
five Business Days thereafter) notify each Barclays Party thereof.
(c) BlackRock
shall provide to Barclays promptly following its request, the amount of
securities then issued and outstanding by BlackRock, including the number of
shares (by class) of BlackRock Capital Stock outstanding and the number and kind
of option, warrant, convertible security, stock appreciation right, or similar
right with an exercise or conversion privilege at a price related to BlackRock
Capital Stock, or similar securities with a value derived from the value of
BlackRock Capital Stock outstanding.
Section
6.4 Savings
Clause. No
provision of this Agreement shall be construed to require any party or its
Affiliates to take any action that would violate any applicable law (whether
statutory or common), rule or regulation.
Section
6.5 Amendment and
Waiver. Except
as otherwise provided herein, this Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties
hereto. Except as otherwise provided herein, no modification,
amendment or waiver of any provision of this Agreement, and no giving of any
consent provided for hereunder, shall be effective unless such modification,
amendment, waiver or consent is, in the case of BlackRock, approved by a
majority of the Independent Directors. The failure of any party to enforce any
of the provisions of this Agreement shall in no way be construed as a waiver of
such provisions and shall not affect the right of such party thereafter to
enforce each and every provision of this Agreement in accordance with its
terms.
Section
6.6 Severability. If
any provision of this Agreement shall be declared by any court of competent
jurisdiction to be illegal, void or unenforceable, all other provisions of this
Agreement shall not be affected and shall remain in full force and
effect.
Section
6.7 Entire
Agreement. Except
as otherwise expressly set forth herein, this Agreement and the SPA embody the
complete agreement and understanding among the parties hereto with respect to
the subject matter hereof and supersede and preempt, solely with respect to the
subject matter hereof, any prior understandings, agreements or representations
by or between the parties, written or oral, that may have related to the subject
matter hereof in any way. Without limiting the generality of the
foregoing, to the extent that any of the terms hereof
20
are
inconsistent with the rights or obligations of any Barclays Party under any
other agreement with BlackRock, the terms of this Agreement shall
govern.
Section
6.8 Successors and
Assigns. Neither
this Agreement nor any of the rights or obligations of any party under this
Agreement shall be assigned, in whole or in part (except by operation of law
pursuant to a merger or similar business combination transaction), by any party
without the prior written consent of the other parties (approved, in
the case of BlackRock, by a majority of the Independent Directors), provided, that any
Barclays Party may assign its rights and obligations hereunder (in whole or in
part) to an Affiliate that agrees in writing with BlackRock to be bound by this
Agreement as fully as if it were an initial signatory hereto and any such
transferee may thereafter make corresponding assignments in accordance with this
proviso; provided, further, that
BlackRock may assign all or a portion of its rights under Section 3.3 in
connection with any particular transaction subject thereto so long as BlackRock
remains, obligated in respect of any purchase obligations arising
thereunder. Subject to the foregoing, this Agreement shall bind and
inure to the benefit of and be enforceable by the parties hereto and their
respective successors and permitted assigns.
Section
6.9 Counterparts. This
Agreement 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.
Section
6.10 Remedies.
(a) Each
party hereto acknowledges that monetary damages would not be an adequate remedy
in the event that each and every one of the covenants or agreements in this
Agreement are not performed in accordance with their terms, and it is therefore
agreed that, in addition to and without limiting any other remedy or right it
may have, the non-breaching party will have the right to an injunction,
temporary restraining order or other equitable relief in any court of competent
jurisdiction enjoining any such breach and enforcing specifically each and every
one of the terms and provisions hereof. Each party hereto agrees not
to oppose the granting of such relief in the event a court determines that such
a breach has occurred, and to waive any requirement for the securing or posting
of any bond in connection with such remedy.
(b) All
rights, powers and remedies provided under this Agreement or otherwise available
in respect hereof at law or in equity shall be cumulative and not alternative,
and the exercise or beginning of the exercise of any thereof by any party shall
not preclude the simultaneous or later exercise of any other such right, power
or remedy by such party.
Section
6.11 Notices. All
notices and other communications hereunder shall be in writing and shall be
deemed given if delivered personally, telecopied (upon telephonic confirmation
of receipt), on the first Business Day following the date of dispatch if
delivered by a recognized next day courier service, or on the third Business Day
following the date of mailing if delivered by registered or certified mail,
return receipt requested, postage prepaid. All notices hereunder shall be
delivered as set forth below, or pursuant to such other instructions as may be
designated in writing by the party to receive such notice.
21
If
to BlackRock:
c/o
BlackRock, Inc.
▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇
▇. ▇▇▇▇
with
a copy (which shall not constitute notice) to:
Skadden,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇, Esq.
If
to Barclays and BR Holdings:
Barclays
PLC
1
▇▇▇▇▇▇▇▇▇ Place
▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇
▇▇▇▇▇▇▇
Facsimile: ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
Attention: Company
Secretary
And
Barclays
BR Holdings S.à ▇.▇.
▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
Attention: Company
Secretary
with
a copy (which shall not constitute notice) to:
▇▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇▇, Esq.
22
Section
6.12 Governing Law; Consent to
Jurisdiction.
(a) This
Agreement 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. Each of the parties hereto hereby irrevocably and
unconditionally consents to submit to the exclusive jurisdiction in the Court of
Chancery of the State of Delaware (unless such court does not have subject
matter jurisdiction in which case the parties submit to the exclusive
jurisdiction of the courts of the State of New York located in the Borough of
Manhattan) or any court of the United States located in the State of Delaware,
for any action, proceeding or investigation in any court or before any
governmental authority ("Litigation") arising out of or relating to this
Agreement and the transactions contemplated hereby. Each of the
parties hereto hereby irrevocably and unconditionally waives, and agrees not to
assert, by way of motion, as a defense, counterclaim or otherwise, in any such
Litigation, the defense of sovereign immunity, any claim that it is not
personally subject to the jurisdiction of the aforesaid courts for any reason
other than the failure to serve process in accordance with this Section 6.12,
that it or its property is exempt or immune from jurisdiction of any such court
or from any legal process commenced in such courts (whether through service of
notice, attachment prior to judgment, attachment in aid of execution of
judgment, execution of judgment or otherwise), and to the fullest extent
permitted by applicable law, that the Litigation in any such court is brought in
an inconvenient forum, that the venue of such Litigation is improper, or that
this Agreement, or the subject matter hereof, may not be enforced in or by such
courts and further irrevocably waives, to the fullest extent permitted by
applicable law, the benefit of any defense that would hinder, ▇▇▇▇▇▇ or delay
the levy, execution or collection of any amount to which the party is entitled
pursuant to the final judgment of any court having jurisdiction. Each
of the parties irrevocably and unconditionally waives, to the fullest extent
permitted by applicable law, any and all rights to trial by jury in connection
with any Litigation arising out of or relating to this Agreement or the
transactions contemplated hereby.
(b) Each
of the parties expressly acknowledges that the foregoing waiver is intended to
be irrevocable under the laws of the State of Delaware and of the United States
of America; provided that consent
by the Barclays Parties and BlackRock to jurisdiction and service contained in
this Section 6.12 is solely for the purpose referred to in this Section 6.12 and
shall not be deemed to be a general submission to said courts or in the State of
Delaware other than for such purpose.
Section
6.13 Interpretation. The
table of contents and headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. Whenever the words "include", "includes" or "including" are used
in this Agreement, they shall be deemed to be followed by the words "without
limitation."
23
IN
WITNESS WHEREOF, the parties hereto have executed this Stockholder Agreement as
of the date first written above.
|
BLACKROCK,
INC.
|
|||
|
By:
|
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
|
||
|
Name:
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
|
||
|
Title:
|
Managing
Director and Deputy General Counsel
|
||
|
BARCLAYS
BANK PLC
|
|||
|
By:
|
/s/
▇▇▇▇▇ ▇▇▇▇▇
|
||
|
Name:
|
▇▇▇▇▇
▇▇▇▇▇
|
||
|
Title:
|
Director
|
||
|
BARCLAYS
BR HOLDINGS S.À ▇.▇.
|
|||
|
By:
|
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
|
||
|
Name:
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇
|
||
|
Title:
|
Attorney
|
||
[Signature
page of Stockholder Agreement]