Exhibit 10.1
IMPLEMENTATION AND STOCKHOLDER AGREEMENT
AMONG
THE PNC FINANCIAL SERVICES GROUP, INC.
NEW BOISE, INC.
AND
BLACKROCK, INC.
DATED AS OF FEBRUARY 15, 2006
Table of Contents
Page
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ARTICLE I
DEFINITIONS
Section 1.1 Certain Defined Terms........................................1
Section 1.2 Other Defined Terms..........................................6
Section 1.3 Other Definitional Provisions................................7
Section 1.4 Methodology for Calculations.................................7
ARTICLE II
SHARE OWNERSHIP
Section 2.1 New BlackRock Capital Stock..................................7
Section 2.2 Prohibition of Certain Communications and Actions............9
Section 2.3 Additional Purchases of Voting Securities...................10
Section 2.4 BlackRock Share Repurchases.................................11
ARTICLE III
TRANSFER RESTRICTIONS
Section 3.1 General Transfer Restrictions...............................11
Section 3.2 Restrictions on Transfer....................................11
Section 3.3 Right of Last Refusal.......................................13
Section 3.4 Legend on Securities........................................14
Section 3.5 Change of Control...........................................14
ARTICLE IV
CORPORATE GOVERNANCE
Section 4.1 Composition of the Board....................................15
Section 4.2 Vote Required for Board Action; Board Quorum................15
Section 4.3 Committees..................................................18
Section 4.4 Certificate of Incorporation and Bylaws to be Consistent....18
Section 4.5 Information Rights..........................................18
Section 4.6 Voting Agreements...........................................20
Section 4.7 Related Party Transactions..................................20
Section 4.8 Bank Holding Company........................................21
Section 4.9 Dividend Payout Ratio.......................................21
Section 4.10 Transaction Document........................................21
Section 4.11 Employment Matters..........................................21
ARTICLE V
PRE-CLOSING OBLIGATIONS OF PNC
Section 5.1 Amendment of Share Surrender Agreement......................21
Section 5.2 Termination of IPO Agreement and Stockholders Agreement.....21
Section 5.3 Amendment to Certificate of Incorporation and ByLaws........22
Section 5.4 Approval of Transaction Agreement and Related Matters.......22
Section 5.5 Registration Rights Agreement...............................22
ARTICLE VI
MISCELLANEOUS
Section 6.1 Conflicting Agreements......................................22
Section 6.2 Termination.................................................22
Section 6.3 Ownership Information.......................................23
Section 6.4 Savings Clause..............................................23
Section 6.5 Amendment and Waiver........................................23
Section 6.6 Severability................................................23
Section 6.7 Entire Agreement............................................23
Section 6.8 Successors and Assigns......................................24
Section 6.9 Counterparts................................................24
Section 6.10 Remedies....................................................24
Section 6.11 Notices.....................................................24
Section 6.12 Governing Law; Consent to Jurisdiction......................25
Section 6.13 Interpretation..............................................26
Section 6.14 Effectiveness...............................................26
IMPLEMENTATION AND STOCKHOLDER AGREEMENT
IMPLEMENTATION AND STOCKHOLDER AGREEMENT dated as of February 15, 2006
among BlackRock, Inc., a Delaware corporation ("BlackRock"), New Boise,
Inc. a Delaware corporation ("New BlackRock") and The PNC Financial Services
Group, Inc., a Pennsylvania corporation ("PNC").
WHEREAS, BlackRock is party to a Transaction Agreement, dated as of
February 15, 2006 (the "Transaction Agreement"), with Xxxxxxx Xxxxx & Co.,
Inc., a Delaware corporation ("Miami Parent"), pursuant to and subject to the
terms and conditions of which, among other things, Miami Parent will contribute
to New BlackRock all of its interest in certain of its Controlled Affiliates in
consideration for shares of Capital Stock of New BlackRock;
WHEREAS, there are conditions to the closing under the Transaction
Agreement (the "Closing") that PNC and BlackRock make certain modifications to
agreements between them;
WHEREAS, upon the Closing, PNC will Beneficially Own (as defined
herein), directly and/or through directly or indirectly wholly-owned
Subsidiaries (as defined herein) approximately 35% of the issued and
outstanding New BlackRock Class A Common Stock (as defined herein);
WHEREAS, the parties hereto desire to enter into this Agreement to
establish certain arrangements with respect to the shares of New BlackRock
Common Stock to be Beneficially Owned by PNC 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
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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 PNC solely by
virtue of the Beneficial Ownership by PNC of New BlackRock Capital Stock, the
election of Directors nominated by PNC to the Board, the election of any other
Directors nominated by the Board or any other action taken by PNC 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 Implementation and 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 PNC 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 PNC shall not include,
for any purpose under this Agreement, any Voting Securities or other securities
held by such Person and its Affiliates in trust, managed, brokerage, custodial,
nominee or other customer accounts; in trading, inventory, lending or similar
accounts of such Person and Affiliates of such Person 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 Person and its
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 New BlackRock or avoiding the
provisions of this Agreement. The term "Beneficially Own" shall have a
correlative meaning.
"Board" means the Board of Directors of New 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.
"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.
"Class A Common Stock" means the shares of Class A Common Stock, par
value $0.01 per share, of BlackRock or New BlackRock, as the case may be, 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.
A "Change of Control of PNC" shall be deemed to occur when the Board
of Directors of PNC determines that a Change in Control of PNC has occurred, as
a Change in Control of PNC may be defined from time to time by the Board of
Directors of PNC. Provided, however, that at a minimum, a Change in Control of
PNC shall, without any action by the Board of Directors of PNC, be deemed to
occur if:
(a) any Person, excluding employee benefit plans of PNC, is or becomes
the Beneficial Owner, directly or indirectly, of securities of PNC representing
a majority of the combined voting power of PNC's then outstanding securities;
(b) PNC consummates a merger, consolidation, share exchange, division
or other reorganization or transaction of PNC (a "Fundamental Transaction")
with any other corporation, other than a Fundamental Transaction that results
in the voting securities of PNC outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity) at least a majority of the
combined voting power immediately after such Fundamental Transaction of (i)
PNC's outstanding securities, (ii) the surviving entity's outstanding
securities, or (iii) in the case of a division, the outstanding securities of
each entity resulting from the division;
(c) the shareholders of PNC approve a plan of complete liquidation or
winding-up of PNC or an agreement for the sale or disposition (in one
transaction or a series of transactions) of all or substantially all PNC's
assets;
(d) as a result of a proxy contest, individuals who prior to the
conclusion thereof constituted the Board of Directors of PNC (including for
this purpose any new director whose election or nomination for election by
PNC's shareholders in connection with such proxy contest was approved by a vote
of at least two-thirds of the directors then still in office who were directors
prior to such proxy contest) cease to constitute at least a majority of the
Board of Directors of PNC (excluding any Board seat that is vacant or otherwise
unoccupied); or
(e) during any period of twenty-four (24) consecutive months,
individuals who at the beginning of such period constituted the Board of
Directors of PNC (including for this purpose any new director whose election or
nomination for election by PNC's shareholders was approved by a vote of at
least two thirds of the directors then still in office who were directors at
the beginning of such period) cease for any reason to constitute at least a
majority of the Board of Directors of PNC (excluding any Board seat that is
vacant or otherwise unoccupied).
"Commission" means the United States Securities and Exchange
Commission.
"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.
"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).
"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).
"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 an arm's-length negotiated transaction without
time constraints. With respect to any securities that are traded on a national
securities exchange or quoted on the Nasdaq National Market or the Nasdaq Small
Cap Market, 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 Series A Participating Preferred Stock shall be the
same price per share as the Fair Market value per share of the Class A 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 New 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 New
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 and New BlackRock, pursuant to
Section 303A.02 of the New York Stock Exchange Listed Company Manual and
Section l0A of the Exchange Act (or any successor provisions) and (ii) was not
nominated or proposed for nomination by or on behalf of, PNC, any Significant
Stockholder, any Affiliates or Designated Directors of PNC 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
PNC, any Significant Stockholder, BlackRock, or New BlackRock is independent of
such Person or Persons.
"Material Effect" means a determination by the Board that the
fundamental economics and operations of the business of New BlackRock have been
materially and adversely affected as a result of a Change of Control of PNC
(taking into account New BlackRock's revenues, earnings, corporate governance,
management practices, culture and compensation practices).
"Ownership Cap" means, at any time of determination, with respect to
PNC and its Affiliates, the higher of (i) 35 percent of the Total Voting Power
of the Voting Securities of New BlackRock issued and outstanding at such time
and (ii) the Ownership Percentage of PNC immediately after the Closing.
"Ownership Percentage" means, with respect to any Person, at any time,
the quotient, expressed as a percentage, of (i) the Total Voting Power of all
Voting Securities or another Person Beneficially Owned by such Person and its
Affiliates divided by (ii) the Total Voting Power of all Voting Securities of
such other Person issued and outstanding at that time.
"Ownership Threshold" means, at any time of determination, with
respect to New BlackRock Parent and its Affiliates, 20 percent of the Total
Voting Power of the Voting Securities of New BlackRock issued and outstanding
at such time.
"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 New 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 PNC and its Affiliates that Beneficially Owns 20 percent or
more of the Total Voting Power of the Voting Securities of New BlackRock issued
and outstanding at that 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 partner 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 PNC 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 PNC's 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 PNC 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 PNC, expressly assumes all obligations of PNC
under this Agreement. For purposes of this Agreement, the term Transfer shall
include the sale of an Affiliate of PNC or PNC'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 New BlackRock Stock Purchase Section 2.3
BlackRock Preamble
PNC Preamble
PNC Designee Section 4.1(a)
BlackRock Party Section 3.3(a)
Closing Preamble
DGCL Section 1.4
Final Transfer Notice Section 3.2(a)(ii)
Initial Transfer Notice Section 3.2(a)(ii)
Last Look Price Section 3.2(a)(ii)
Litigation Section 6.12(a)
Management Designee Section 4.1(a)
Miami Parent Preamble
Prohibited Actions Section 2.2(h)
Related Person Section 4.7
Stock Issuance Section 2.3
Transaction Agreement Preamble
Transferring Party Section 3.2(a)(ii)
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 Capital Stock or Voting Securities and the
number of shares of Capital Stock or Voting Securities of any Person
Beneficially Owned by any other Person as of any date, any shares of Capital
Stock or Voting Securities held in treasury or belonging to any Subsidiary of
such Person 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 New BlackRock Capital Stock.
(a) Except as provided in paragraph (b) below, PNC covenants and
agrees with New 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 New BlackRock Capital
Stock, if after giving effect to such acquisition or action, PNC, together with
its Affiliates, would Beneficially Own New BlackRock Capital Stock representing
more than its Ownership Cap.
(b) Notwithstanding the foregoing, the acquisition (whether by merger,
consolidation, exchange of equity interests, purchase of all or part of the
equity interests or assets or otherwise) by PNC 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 PNC's or such
Affiliate's banking, brokerage or securities business, shall not constitute a
violation of its Ownership Cap; provided that (i) the primary purpose of any
such transaction is not to avoid the provisions of this Agreement, including
its Ownership Cap (or the higher amount provided by Section 2.4 if then
applicable), and (ii) that 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 its Ownership
Cap (or the higher amount provided by Section 2.4 if then applicable) 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 New
BlackRock Capital Stock or derivatives thereof after the date of the
transaction that resulted in PNC exceeding its Ownership Cap) and, to the
extent such divestiture does not occur despite the use of such reasonable best
efforts, the successor or surviving Person to such transaction, if not PNC or
such Affiliate, expressly assumes all obligations of PNC 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 other than to the extent permitted by Section
2.4 PNC or any of its Affiliates Beneficially Owns in the aggregate New
BlackRock Capital Stock representing more than its Ownership Cap, then PNC
shall, as soon as is reasonably practicable after its Ownership Percentage
first exceeds its Ownership Cap (but in no event more than 120 days thereafter,
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 incur 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 New BlackRock Capital Stock or
derivatives thereof after the date of the transaction that resulted in PNC
exceeding its Ownership Cap) Transfer (after the lapse of any minimum holding
period) a number of shares of New BlackRock Capital Stock sufficient to reduce
the amount of New BlackRock Capital Stock Beneficially Owned by it and its
Affiliates to an amount representing not greater than its Ownership Cap (or the
higher amount provided by Section 2.4 if then applicable).
(ii) Notwithstanding any other provision of this Agreement,
in no event may PNC 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 New BlackRock Capital Stock
Beneficially Owned by it and its Affiliates representing in excess of its
Ownership Cap (or the higher amount provided by Section 2.4 if then
applicable).
(d) Any New BlackRock Capital Stock acquired and Beneficially Owned by
PNC following the Closing shall be subject to the restrictions contained in
this Agreement as fully as if such shares of New BlackRock Capital Stock were
acquired by it at or prior to the Closing.
(e) Notwithstanding Section 2.1(a), PNC shall not and shall cause its
Affiliates not to acquire Beneficial Ownership of any shares of New BlackRock
Capital Stock from any Person other than New 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 PNC,
together with its Affiliates, would Beneficially Own New BlackRock Capital
Stock representing more than 90 percent of its Ownership Cap.
Section 2.2 Prohibition of Certain Communications and Actions. From
and after the Closing, PNC shall not and shall cause its Affiliates and its and
their directors, officers and other agents 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 New BlackRock, any stockholder of New BlackRock, any
employee or union or other labor organization representing employees of New
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 New BlackRock or any stockholder of, any
employee or union or other labor organization representing employees of New
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) New BlackRock Capital Stock or direct
or indirect right to acquire any New BlackRock Capital Stock or Voting
Securities of any successor to or person in control of New BlackRock in an
amount which, when added to any other New BlackRock Capital Stock then
Beneficially Owned by PNC or any of its Affiliates would cause the total amount
of Voting Securities of New BlackRock Beneficially Owned by PNC or any of its
Affiliates to exceed its Ownership Cap, or (ii) any equity securities of any
Controlled Affiliate of New 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 New BlackRock or any Controlled Affiliate of New
BlackRock, including, without limitation, a merger, tender or exchange offer or
sale of any substantial portion of the assets of New BlackRock or any
Controlled Affiliate of BlackRock,
(c) any form of restructuring, recapitalization or similar transaction
with respect to New BlackRock or any Controlled Affiliate of New BlackRock,
(d) any purchase of any assets, or any right to acquire any asset
(through purchase, exchange, conversion or otherwise), of New BlackRock or any
Controlled Affiliate of New BlackRock, other than investment assets of New
BlackRock or any Controlled Affiliate of New 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 Capital Stock of New BlackRock or any Controlled
Affiliate of New BlackRock,
(f) selling any share of New 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) any proposal to seek to control or influence the management,
Board or policies of BlackRock or any Controlled Affiliate of BlackRock, or
(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"). If at any time PNC or any Affiliate
thereof is approached by any Person requesting PNC or any Affiliate to
encourage, join, act in concert with or assist any Person in a Prohibited
Action involving the assets, businesses or securities of New BlackRock or any
of its Controlled Affiliates or any other Prohibited Actions, PNC will promptly
inform New BlackRock of the nature of such contact and the parties thereto.
Nothing in this Section 2.2 shall limit the ability of any Director, including
any PNC Designee, to act in his or her capacity as a Director in respect of
Board matters.
Section 2.3 Additional Purchases of Voting Securities. From and after
the Closing, at any time that New BlackRock effects an issuance (a "Stock
Issuance") of additional Voting Securities other than in connection with any
employee restricted stock, stock option, incentive or other employee benefit
plan to any Person or Persons other than PNC or any Affiliate thereof PNC
shall, subject to Section 2.1, have the right to purchase from New BlackRock
(in each instance, an "Additional New BlackRock Stock Purchase") additional
Voting Securities of the same class or series issued in the Stock Issuance such
that following the Stock Issuance and such purchase PNC will Beneficially Own
shares and/or other securities representing the lesser of (x) its Ownership Cap
and (y) the same Ownership Percentage as it owned immediately prior to such
Stock Issuance;(1) provided, however, that PNC shall not have such right to the
extent that the total of all Stock Issuances (other than in connection with any
employee restricted stock, stock option or stock incentive plan) constituting a
public offering including the Stock Issuance in question since the Closing do
not have the effect, after taking into account any repurchases of New BlackRock
Capital Stock by New BlackRock since the Closing and any Transfers of New
BlackRock Capital Stock by PNC and its Affiliates in accordance with Section
3.2(a)(i) or (ii), of decreasing the Total Voting Power of New BlackRock
Capital Stock issued and outstanding after giving effect to such Stock Issuance
Beneficially Owned by PNC and its Affiliates to 90% or less of PNC's Ownership
Cap.
-----------------
(1) To illustrate the foregoing, assume that immediately before a Stock
Issuance by New BlackRock, BlackRock's Parent's Ownership Percentage was
38% (which increase resulted from repurchases conducted by New BlackRock
as contemplated by Section 2.4). If such Stock Issuance was a public
offering and resulted in PNC's Ownership Percentage being diluted to 35%,
then PNC would not be entitled to acquire additional Voting Securities in
connection with that Stock Issuance. If, however, a subsequent Stock
Issuance diluted PNC's Ownership Percentage to, e.g., 30%, PNC would be
entitled to acquire additional Voting Securities which, after taking into
account all of Miami Parent's purchases pursuant to the comparable
provision of its Stockholder Agreement with new BlackRock and BlackRock,
dated the date hereof, would be sufficient to give PNC an Ownership
Percentage of 90% of its initial Ownership Cap. Any subsequent Stock
Issuance could also result in PNC having the right to make an Additional
New BlackRock Stock Purchase.
If PNC 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, PNC shall pay an
equal per security amount of cash consideration in the Additional New BlackRock
Stock Purchase following such Stock Issuance. In all other cases, the price
that PNC shall pay to purchase the additional Voting Securities shall be the
Fair Market Value per unit of the class or series of Voting Securities. New
BlackRock shall give PNC written notice of any Stock Issuance as far in advance
as practicable and also on the date of completion.
Section 2.4 BlackRock Share Repurchases. If New BlackRock engages in
any share repurchase program or self-tender that has the effect of causing the
Beneficial Ownership of New BlackRock Capital Stock by PNC and its Affiliates
to exceed its Ownership Cap, subject to any restrictions in the Exchange Act,
PNC shall, at the request of New BlackRock, promptly sell such number of shares
of New BlackRock Capital Stock to New BlackRock as shall cause the Beneficial
Ownership of New BlackRock Capital Stock by PNC and its Affiliates not to
exceed its Ownership Cap; provided, that PNC shall be permitted to Beneficially
Own not more than 40 percent of the Total Voting Power of the Voting Securities
of New BlackRock issued and outstanding if such increased Beneficial Ownership
by PNC is solely due to share repurchases or self-tenders by New BlackRock.
ARTICLE III
TRANSFER RESTRICTIONS
Section 3.1 General Transfer Restrictions. The right of PNC and its
Affiliates to Transfer any New BlackRock Capital Stock is subject to the
restrictions set forth in this Article III, and no Transfer of New BlackRock
Capital Stock by PNC 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 New BlackRock.
Section 3.2 Restrictions on Transfer.
(a) PNC shall not, and shall not permit its Affiliates to, Transfer
any Beneficially Owned New BlackRock Capital Stock or agree to Transfer,
directly or indirectly, any Beneficially Owned New BlackRock Capital Stock;
provided that the foregoing restriction shall not be applicable to Transfers:
(i) to an Affiliate of PNC 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 (A) the restrictions of Rule 144 under the
Securities Act applicable to sales of securities by Affiliates of an issuer
(regardless of whether PNC is deemed at such time to be an Affiliate of New
BlackRock) or (B) privately negotiated transactions to any Person described in
Rule 13d-1(b)(1) under the Exchange Act who is eligible to report the holdings
of New BlackRock Capital Stock on Schedule 13G and who after consummation of
such transaction would have Beneficial Ownership of BlackRock Capital Stock
representing in the aggregate not more than 10% of the Total Voting Power of
New BlackRock Capital Stock; or any other Person who after consummation of such
transaction would have Beneficial Ownership of BlackRock Capital Stock
representing in the aggregate not more than 5% of the Total Voting Power of New
BlackRock Capital Stock; provided, that PNC or the Affiliate proposing to
Transfer pursuant to this Section 3.2(a)(ii)(B) (the "Transferring Party")
promptly provide to New BlackRock written notice (an "Initial Transfer
Notice"), stating such Transferring Party's intention to effect such a
Transfer, and stating that PNC will comply with the provisions of Section 3.3
and prior to making any Transfer or entering into any definitive agreement to
do so shall provide to New BlackRock a further written notice (a "Final
Transfer Notice") stating such Transferring Party's intention to effect the
specific transfer described therein (including price and terms (the "Last Look
Price"));
(iii) pursuant to a distribution to the public, registered
under the Securities Act, in which PNC uses its commercially reasonable efforts
to (A) effect as wide a distribution of such New BlackRock Capital Stock as is
reasonably practicable, and (B) not knowingly, after inquiry, sell any shares
of New BlackRock Capital Stock to:
(1) any Person described in Section 13d-1(b)(1)
under the Exchange Act who is eligible to report the holdings of New
BlackRock Capital stock on Schedule 13G and who after consummation of
such offering would have Beneficial Ownership of New BlackRock Capital
Stock representing in the aggregate more than 10% of the Total Voting
Power of New BlackRock Capital Stock; or
(2) any other Person who after consummation of such
offering would have Beneficial Ownership of New BlackRock Capital
Stock representing in the aggregate more than 5% of the Total Voting
Power of New BlackRock Capital Stock; or
(iv) with the prior written consent of a majority of the
Independent Directors.
(b) If PNC wishes or is required to Transfer an amount of New
BlackRock Capital Stock constituting more than 10% of the Total Voting Power of
New BlackRock Capital Stock, PNC and New BlackRock shall coordinate 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.
(c) PNC shall reimburse New BlackRock for any fees and expenses
incurred in connection with any Transfer by PNC 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 Last Refusal.
(a) Upon receipt of a Final Transfer Notice, unless the proposed
Transfer described therein is being made in a tax-free or tax-deferred
Transfer, including to a charitable organization or foundation, BlackRock will
have an irrevocable and transferable option to purchase all of the New
BlackRock Capital Stock subject to such Final Transfer Notice at the Last Look
Price and otherwise on the terms and conditions described in the Final Transfer
Notice. New BlackRock and/or its transferees (collectively, and/or separately
the "BlackRock Party") shall, within 10 Business Days from receipt of the Final
Transfer Notice, indicate if it intends to exercise such option by sending
irrevocable written notice of any such exercise to the Transferring Party, and
such BlackRock Party shall then be obligated to purchase all such New BlackRock
Capital Stock on terms and conditions no less favorable (other than date of
closing) to Transferring Party than those set forth in the Final Transfer
Notice.
(b) If a BlackRock Party elects to purchase all of such New BlackRock
Capital Stock, the BlackRock Party and the Transferring Party shall be legally
obligated to consummate such transaction and shall use their commercially
reasonable efforts to consummate such transaction as promptly as practicable
but in any event within 10 Business Days following the delivery of such
election notice or, if later, 5 Business Days after receipt of all required
regulatory approvals (but in no event more than 60 days after the delivery of
such election notice).
(c) If a BlackRock Party does not elect to purchase all of such New
BlackRock Capital Stock pursuant to this Section 3.3 (or if, having made such
election, does not complete such purchase within the applicable time period
specified in Section 3.3(b)), then the Transferring Party shall be free for a
period of 30 days from the date the election notice was due to be received from
a BlackRock Party to enter into definitive agreements to Transfer such New
BlackRock Capital Stock in accordance with Section 3.2(a)(ii) for not less than
the Last Look Price; provided that any such definitive agreement provides for
the consummation of such Transfer to take place within nine months from the
date of such definitive agreement and is otherwise on terms not more favorable
to the transferee in any material respect than were contained in the Final
Transfer Notice. In the event that the Transferring Party has not entered into
such a definitive agreement with such 30-day period, or has so entered into
such an agreement but has not consummated the sale of such BlackRock Capital
Stock within nine months from the date of such definitive agreement, then the
provisions of this Section 3.3 shall again apply, and such Transferring Party
shall not Transfer or offer to Transfer such New BlackRock Capital Stock not so
Transferred without again complying with this Section 3.3, to the extent
applicable.
(d) Each of the time periods set forth in Section 3.3(a)-(c) above
shall be doubled if the number of shares PNC seeks to Transfer (as set forth in
the Final Transfer Notice) exceeds 4.5% of the Total Voting Power of the New
BlackRock Capital Stock issued and outstanding at that time.
Section 3.4 Legend on Securities.
(a) Each certificate representing shares of BlackRock Capital Stock
Beneficially Owned by PNC or 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 IMPLEMENTATION AND STOCKHOLDER AGREEMENT
DATED AS OF FEBRUARY 15, 2006, AMONG BLACKROCK, INC., NEW
BOISE, INC. (THE "COMPANY") AND THE PNC FINANCIAL SERVICES
GROUP, INC., 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 PNC or its Affiliates of additional shares
of New BlackRock Capital Stock, PNC shall, or shall cause such Affiliate to,
submit the certificates representing such shares of New 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) New BlackRock may make a notation on its records or give
instructions to any transfer agents or registrars for New 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
New BlackRock Capital Stock, the transferor shall provide New BlackRock with
such customary certificates, opinions and other documents as New 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(a)(ii), (iii) or (iv), New BlackRock shall
remove such portion of the foregoing legend as is appropriate in the
circumstances.
Section 3.5 Change of Control. Upon a Change of Control of PNC within
the first five years after the Closing and a determination of Material Effect
by the Board within twelve months after the occurrence of such Change in
Control, PNC (or any successor Person) shall, as promptly as practicable after
receiving notice of such Material Effect, initiate and thereafter as promptly
as practicable (consistent with applicable legal requirements including normal
blackout periods and Section 16(b) of the Exchange Act) Transfer in accordance
with the provisions of Sections 3.2 and/or 3.3 of this Agreement or such other
manner as the parties shall have agreed is optimal in the circumstances and
will not result in an "assignment" of any investment advisory agreements of New
BlackRock and its Controlled Affiliates under the U.S. Investment Advisers Act
of 1940) all shares of New BlackRock Capital Stock Beneficially Owned by it and
its Affiliates immediately after giving effect to such Change of Control. The
parties shall cooperate in completing and marketing such Transfer, and shall
take into account all relevant considerations, including market conditions, in
determining the timing and manner of such Transfer.
ARTICLE IV
CORPORATE GOVERNANCE
Section 4.1 Composition of the Board.
(a) Prior to the Closing, PNC shall take all requisite action so that,
effective not later than the Closing, the Board shall be composed of 17
Directors, including nine Independent Directors, four members of New BlackRock
management (each a "Management Designee"), two individuals (who may be members
of PNC management) designated in writing to New BlackRock by PNC (each a "PNC
Designee") and two individuals designated in writing to New BlackRock by any
Person becoming a Significant Stockholder at the time of the Closing.
(b) Following the Closing, New BlackRock and PNCs shall each use its
best efforts to cause the election of each meeting of stockholders of New
BlackRock of such nominees reasonably acceptable to the Board such that there
are no more than 17 Directors; there are four Directors who are Management
Designees (including at least one who also is a former senior executive of
Miami); there are two Directors, each in a different class, who are PNC
Designees; there are two Directors, each in a different class, who are
individuals designated in writing to New BlackRock by a Person who is a
Significant Stockholder and who obtained such status in connection with the
Closing, and the remaining Directors are Independent Directors.
(c) Following the Closing, upon the resignation, retirement or other
removal from office of any Management Designee or PNC Designee, (i) New
BlackRock or PNC, as the case may be, shall be entitled promptly to designate a
replacement Management Designee or PNC Designee, as the case may be, who meets
the qualifications of a Director and is reasonably acceptable to the Board and
(ii) New BlackRock and PNC shall each use its best efforts to cause the
appointment or election of such replacement designee as a Director by the other
Directors or by the stockholders of New 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), New BlackRock
shall not enter into or effectuate any of the following transactions without
the prior approval of either all of the Independent Directors then in office,
or at least two-thirds of these Directors then in office, at a meeting with
respect to which such transaction was specifically described in a written
notice of meeting called at least two Business Days in advance; provided,
however, that if a Director is not present (for the avoidance of doubt, a
Director may attend, and be counted as present, at a meeting telephonically) at
either of two meetings called and noticed in the foregoing manner to consider
such transactions, such Director shall be deemed, solely for purposes of this
Section 4.2(b), not to be a Director then in office if such Director is not
present at the third meeting called and noticed in the foregoing manner to
consider such transactions:
(i) appointment of a new Chief Executive Officer of New
BlackRock;
(ii) any merger, consolidation, exchange of shares, issuance
of shares or similar transaction as a result of which a majority of the Total
Voting Power of New BlackRock Capital Stock or the Person surviving such
transaction issued and outstanding immediately after giving effect to such
transaction would be Beneficially Owned by one or more Persons other than the
Persons holding a majority of the Total Voting Power of New BlackRock Capital
Stock issued and outstanding prior to the occurrence of such transaction, or
any sale of all or substantially all of the assets of New BlackRock to any
Person;
(iii) any acquisition, whether by merger, consolidation,
exchange of equity interests, purchase of equity interests or assets or similar
transaction, of any Person or business the consolidated net income after taxes
of which for its preceding fiscal year equals or exceeds 20% of BlackRock's
consolidated net income after taxes for it preceding fiscal year if such
acquisition involves the current or potential issuance of New BlackRock Capital
Stock constituting more than 10% of the Total Voting Power of New BlackRock
Capital Stock issued and outstanding immediately after completion of such
acquisition;
(iv) any acquisition, whether by merger, consolidation,
exchange of equity interests, purchase of equity interests or assets or similar
transaction, of any Person or business constituting a line of business that is
materially different from the lines of business New BlackRock and its
Controlled Affiliates are engaged in immediately prior to such acquisition if
such acquisition involves consideration in excess of 10% of the total assets of
New BlackRock on a consolidated basis;
(v) except for repurchases pursuant to the terms of this
Agreement, any repurchase by New BlackRock or any Subsidiary of New BlackRock
of shares of New BlackRock Capital Stock such that after giving effect to such
repurchase New BlackRock and its Subsidiaries shall have repurchased more than
10% of the Total Voting Power of New BlackRock Capital Stock within the
12-month period ending on the date of such repurchase;
(vi) any amendment, modification or waiver of New BlackRock's
Certificate of Incorporation or By-Laws;
(vii) any matter requiring stockholder approval pursuant to
the requirements of the New York Stock Exchange listed Company manual; or
(viii) any amendment, modification or waiver (as distinct
from a consent or approval provided for herein) of any restriction or
prohibition on PNC or its Affiliates or any amendment, modification or waiver
(as distinct from a consent or approval provided for therein) of any
restriction or prohibition on a Significant Stockholder or its Affiliates
provided for in a stockholder agreement between New BlackRock and such
Significant Stockholder.
(c) In addition to the requirements of Section 4.2(a) and (b), New
BlackRock shall not enter into any agreement providing for or effectuate any of
the following transactions without the prior written approval of PNC:
(i) until the fifth anniversary of the Closing, (A) any
merger, consolidation, exchange of shares, issuance of shares or similar
transaction as a result of which a majority of the Total Voting Power of the
Capital Stock of New BlackRock or the Person surviving such transaction issued
and outstanding immediately after giving effect to such transactions would be
Beneficially Owned by one or more Persons other than the Persons holding a
majority of the Total Voting Power of New BlackRock Capital Stock issued and
outstanding prior to the occurrence of such transaction or (B) in the case of a
merger, consolidation, exchange of shares, issuance of shares or similar
transaction that is not covered by clause (A) above, more than 20% of the Total
Voting Power of the Capital Stock of New BlackRock or the other Person
surviving such transaction issued and outstanding immediately after giving
effect to such transaction would be Beneficially Owned by any Person who
Beneficially Owned less than 20% of the Total Voting Power of the New BlackRock
Capital Stock or of the Capital Stock of such other Person immediately prior to
such transaction;
(ii) for so long as BlackRock shall be deemed to be a
subsidiary of PNC for purposes of the U.S. Bank Holding Company Act, entering
into any business or engaging in any activity that is prohibited for any such
Subsidiary;
(iii) any sale, whether by merger, consolidation, exchange of
equity interests, sale of equity interests in or assets or similar transaction
of any Subsidiary if the annualized revenues of such Subsidiary or assets,
together with the annualized revenues of all other Subsidiaries or assets so
disposed of within the 12-month period ending on the date of such sales exceeds
more than 20% of the annualized revenues of New BlackRock for the preceding
fiscal year on a consolidated basis;
(iv) any amendment, modification, repeal or waiver of Section
3.2 of New BlackRock's By-Laws or of New BlackRock's Certificate of
Incorporation or By-Laws that would be viewed by a reasonable Person as being
adverse to the rights of PNC or more favorable to the rights of a Significant
Stockholder than to the rights of PNC;
(v) any settlement or consent in a regulatory matter that
would be reasonably likely, in the opinion of counsel for PNC, to cause PNC 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));
(vi) any amendment, modification, or waiver (as distinct from
a consent or approval provided for therein) of any provision of a stockholder
agreement between New BlackRock and a Significant Stockholder that would be
viewed by a reasonable Person as being adverse to PNC or materially more
favorable to the rights of such Significant Stockholder thereunder than to the
rights of PNC hereunder; or
(vii) any voluntary bankruptcy or similar filing or
declaration by New BlackRock;
provided, however, that if a Change of Control of PNC occurs prior to the fifth
anniversary of the Closing, the provisions of Section 4.2(c)(i) and (iii) shall
immediately cease. (d) 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 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 PNC 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 New BlackRock and PNC shall use its 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 Bylaws of New 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
Bylaws of New BlackRock or any of the corresponding constituent documents of
New 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 New BlackRock or PNC hereunder. Neither New BlackRock nor PNC 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 New
BlackRock or PNC hereunder.
Section 4.5 Information Rights.
(a) New BlackRock acknowledges that the investments PNC in New
BlackRock are material and strategic to it. Accordingly, New BlackRock shall
provide to PNC, on an ongoing and current basis, such access to and information
with respect to New 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 New BlackRock.
(b) Without limiting the generality of the foregoing, for so long as
Miami Parent is required (the "Equity Accounting Period") to account for its
investment in New BlackRock under the equity method of accounting (determined
in accordance with GAAP as applicable to PNC), New BlackRock agrees that:
(i) New BlackRock shall provide PNC with (A) consolidated
financial results for the latest available period of the New BlackRock
consolidated group (the "New BlackRock Group") in order to allow PNC to prepare
its US regulatory filings under the Securities Exchange Act of 1934 ("PNC
Public Filings"), including PNC's quarterly financial statements and annual
audited financial statements and (B) such financial information or documents in
the possession of New BlackRock and any of its Subsidiaries as PNC may
reasonably request; and
(ii) New BlackRock shall cooperate, and use its best
reasonable efforts to cause New BlackRock's independent certified public
accounts ("New BlackRock's Auditors") to cooperate, with Miami Parent to the
extent reasonably requested by PNC in the preparation of PNC's public earnings
releases or other press releases, Current Reports on Form 8-K, Annual Reports
to Shareholders, Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q
and any other proxy, information and registration statements, reports, notices,
prospectuses and any other filings made by PNC with the Commission, or any
other Governmental Authority or otherwise made publicly available
(collectively, the "PNC Public Filings"). New BlackRock agrees to provide to
PNC all information that Miami Parent reasonably requests in connection with
any PNC Public Filings or that, in the reasonable judgment of PNC or its legal
counsel, is required to be disclosed or incorporated by reference therein under
any applicable law. New BlackRock shall provide such information to enable PNC
to prepare, print and release all PNC Public Filings on a timely basis. New
BlackRock shall use its best reasonable efforts to cause New BlackRock's
Auditors to consent to any reference to them as experts in any PNC Public
Filings required under applicable law.
(c) New BlackRock will negotiate in good faith with PNC to develop
appropriate protocols for each to share with the other aggregate security
position information for use in their respective compliance programs and to
coordinate share ownership reporting with PNC and any Significant Stockholder
for such purpose.
(d) With respect to any information provided by BlackRock:
(i) Subject to the requirements of law, PNC shall keep
confidential, and shall cause its representatives to keep confidential, all
information and documents obtained pursuant to this Section 4.5 unless such
information (A) is or becomes publicly available other than as a result of a
breach of this Section 4.5(d) by it or its representatives; (B) was within its
possession prior to being furnished to it by or on behalf of New 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, New BlackRock with respect to such information; (C) is or
becomes available to such Person or any of its representatives on a
non-confidential basis from a source other than New 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, New BlackRock with respect to such information; or (D) is
independently developed by or on its behalf without violating any of its
obligations under this Section 4.5(d).
(ii) In the event PNC believes that it is legally required to
disclose any information or documents contemplated by this Section 4.5(d), it
shall to the extent possible under the circumstances provide reasonable prior
notice to New BlackRock so that New 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, PNC may disclose any
information or documents contemplated by this Section 4.5(d) 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 New BlackRock.
(iv) The rights of PNC and the obligations of New 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(d)
shall survive any termination of this Agreement.
Section 4.6 Voting Agreements.
(a) PNC shall, and shall cause any of its Affiliates, to vote or act
by written consent all of the shares of New 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 fail to nominate for election as a Director either or both of the
two individuals designated by PNC who are reasonably acceptable to the Board,
or shall unreasonably reject one or more PNC designees who is otherwise
eligible to serve, then, so long as such individuals otherwise meet the
requirements for serving as a Director of New BlackRock, PNC and its 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 New BlackRock Capital Stock entitled to vote on such matter in favor of the
election of such individuals.
(b) PNC shall, and shall cause each of its Affiliates who hold New
BlackRock Capital Stock entitled to vote on any matter, be present in person or
represented by proxy at all meetings of securityholders of New BlackRock to the
extent necessary so that all Voting Securities Beneficially Owned by PNC and
its 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 New BlackRock nor any
of its Controlled Affiliates shall enter into or effectuate any transaction or
agreement with PNC or any Affiliate of PNC or any director, officer or employee
of PNC or any such Affiliate (each a "Related Person"), unless such transaction
or agreement is in effect at the time of the Closing, relates to transactions
by or on behalf of clients of New 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 PNC Designees, present at a meeting at which a quorum
is present.
Section 4.8 Bank Holding Company.
(a) For so long as New BlackRock shall be deemed to be a subsidiary of
PNC for purposes of the U.S. Bank Holding Company Act, PNC shall have
appropriate access and input regarding regulatory compliance and risk
management practices at New BlackRock as needed to satisfy bank holding company
regulatory safety and soundness requirements.
(b) From and after the first date on which PNC and its Affiliates
Beneficially Own New BlackRock Capital Stock representing less than PNC's
Ownership Threshold, PNC shall cooperate with New BlackRock in seeking to
prevent New BlackRock from continuing to be classified as the subsidiary of PNC
for purposes of the U.S. Bank Holding Company Act.
Section 4.9 Dividend Payout Ratio. In connection with its approval of
the transactions contemplated by the Transaction Agreement and related matters,
the Board of Directors of each of BlackRock and New BlackRock have adopted a
dividend policy establishing a 40% targeted payout ratio, with all subsequent
quarterly dividend declarations under such policy remaining subject to the
relevant board's fiduciary discretion. In the resolutions adopting such policy,
the Boards of BlackRock and New BlackRock have committed not to revise the
dividend payout ratio downward, except in furtherance of the BlackRock and New
BlackRock Boards of Directors' fiduciary duties or other prudential financial
considerations.
Section 4.10 Transaction Document. Prior to the Closing, neither
BlackRock nor New BlackRock shall take any action to amend, modify or waive (a)
any material terms of the Transaction Agreement (including adverse changes in
pricing terms) or (b) any terms of the Stockholder Agreement between New
BlackRock and Miami Parent, dated as of the date hereof, or give or request any
material consent or approval to any action or omission otherwise prohibited or
required under the Transaction Agreement, without the prior written approval of
PNC.
Section 4.11 Employment Matters. BlackRock and New BlackRock agree and
acknowledge that they will require stand-alone employment benefit plans and
payroll functions as of the Closing, and further agree to take such actions
necessary, and PNC agrees to cooperate with BlackRock and New BlackRock, to
effectuate and complete the transition from PNC functions and plans to
stand-alone functions and plans by the Closing.
ARTICLE V
PRE-CLOSING OBLIGATIONS OF PNC
------------------------------
Section 5.1 Amendment of Share Surrender Agreement. PNC and BlackRock
agree to execute and deliver the First Amendment to the Share Surrender
Agreement in the form set forth in Exhibit 5.1 hereto not later than the time
at which the parties thereto execute and deliver the Transaction Agreement.
Section 5.2 Termination of IPO Agreement and Stockholders Agreement.
PNC and BlackRock agree to cause the termination of the Initial Public Offering
Agreement dated as of September 30, 1999 by and among PNC Bank Corp., PNC Asset
Management, Inc. and BlackRock, together with all amendments thereto. PNC and
BlackRock each agree to use its commercially reasonable best efforts to
terminate as to all parties the Amended and Restated Stockholders Agreement
dated as of September 30, 1999, by and among BlackRock, PNC Asset Management,
Inc. and certain employees of BlackRock and its Controlled Affiliates together
with all amendments thereto. Such terminations shall be effective immediately
prior to the Closing. Notwithstanding any other provision of this Agreement or
the Transaction Agreement, the Tax Disaffiliation Agreement, dated as of
September 30, 1999, by and among BlackRock, PNC Asset Management, Inc. and PNC
Bank Corp., as amended through the date hereof, shall continue in full force
and effect from and after the Closing in accordance with its terms.
Section 5.3 Amendment to Certificate of Incorporation and ByLaws. PNC
agrees to vote all shares of BlackRock Capital Stock as to which it or an
Affiliate has or shares voting power in favor of amendments to the Certificate
of Incorporation and ByLaws of BlackRock so that not later than immediately
prior to the Closing such documents read in their entirely as set forth in
Exhibits 5.3(a) and 5.3(b), respectively.
Section 5.4 Approval of Transaction Agreement and Related Matters. At
any BlackRock Stockholders Meeting (as defined in Section 5.15(d) of the
Transaction Agreement), PNC shall, and shall cause any of its Affiliates, to
vote all of the shares of BlackRock Capital Stock Beneficially Owned by it in
favor of the Merger (as defined in Section 1.1 of the Transaction Agreement)
and the issuance of the Miami Consideration (as defined in Section 1.2 of the
Transaction Agreement). Until such time as the BlackRock Stockholders Meeting
is held or the earlier termination of the Transaction Agreement in accordance
with its terms, PNC shall, and shall cause its Affiliates to, maintain in the
aggregate, Voting Power over sufficient BlackRock Capital Stock to approve the
Merger and the issuance of the Miami Consideration (as such terms are defined
in the Transaction Agreement) without the affirmative vote of any other holder
of BlackRock Capital Stock.
Section 5.5 Registration Rights Agreement. At or prior to the Closing,
BlackRock, New BlackRock and PNC will enter into a Registration Rights
Agreement on terms not less favorable in the aggregate to PNC than the terms
set forth on Exhibit 5.5 hereto.
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 upon the first date on which PNC and
its Affiliates Beneficially Own New 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 Threshold, indicated its intent to
increase its Beneficial Ownership above such 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 New BlackRock
Capital Stock representing less than five percent of the Total Voting Power of
the New 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 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 New 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 New
BlackRock shall have updated such information by delivery of written notice to
PNC.
(b) If at any time or from time to time New BlackRock becomes aware of
any event that has caused, or which could reasonably be expected to cause, the
Beneficial Ownership by PNCs and its Affiliates of New BlackRock Capital Stock
to increase above its Ownership Cap, New BlackRock shall promptly (but in no
event more than five Business Days thereafter) notify PNC thereof.
Section 6.4 Savings Clause. No provision of this Agreement shall be
construed to require any party or its Controlled 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 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 embodies the complete agreement and understanding among
the parties hereto with respect to the subject matter hereof and supersede and
preempt any prior understandings, agreements or representations by or among 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 are inconsistent with the rights or obligations of PNC
under any other agreement with New 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 New BlackRock, by a
majority of the Independent Directors), provided, that PNC may assign its
rights and obligations hereunder (in whole or in part) to an Affiliate that
agrees in writing with New 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; and provided,
further, that New 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 New BlackRock remains obligated in respect of any purchase obligation
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.
If to BlackRock or New BlackRock:
c/o BlackRock, Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: 000-000-0000
Attn: Xxxxxxxx X. Xxxx
with a copy (which shall not constitute notice) to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: 000-000-0000
Attention: Xxxxxxxx X. Xxxxxx, Esq.
Xxxxxxx X. Xxxxx, Esq.
If to PNC:
The PNC Financial Services Group, Inc.
One PNC Plaza
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Facsimile: 000-000-0000
Attention: General Counsel
with a copy (which shall not constitute notice) to:
Wachtell, Lipton, Xxxxx & Xxxx
00 X. 00xx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: 212-403-2000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
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 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, xxxxxx 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 PNC and New
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".
Section 6.14 Effectiveness. This Agreement shall become effective upon
the Closing and prior thereto shall be of no force or effect except that the
obligations of BlackRock set forth in Sections 4.9, 4.10 and 4.11 and the
obligations of PNC set forth in Sections 4.1(a), 4.3, 4.4, 4.6(a)(i) and (ii)
and, subject to reversal if the Transaction Agreement is terminated in
accordance with its terms without the Closing having occurred, Article V shall
become effective immediately. If the Transaction Agreement shall be terminated
in accordance with its terms prior to the Closing, this Agreement and any
actions or agreements contemplated hereby shall automatically be of no force or
effect.
IN WITNESS WHEREOF, the parties hereto have executed this
IMPLEMENTATION AND STOCKHOLDER Agreement as of the date first written above.
BLACKROCK, INC.
By: /s/ Xxxxxxxx X. Xxxx
---------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Chairman & Chief Executive
Officer
NEW BOISE, INC.
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
THE PNC FINANCIAL SERVICES GROUP, INC.
By: /s/ Xxxxx X. Xxxx
---------------------------------
Name: Xxxxx X. Xxxx
Title: Chairman and Chief
Executive Officer
Exhibit 5.5
Registrable Shares: all current shares, and all future shares not
acquired in violation of the stockholder agreement, until either (1) sold under
an effective registration or (2) freely tradable without restriction under Rule
144(k); registration will be flexible, including, e.g., to provide for
exchangeables and other hybrids
Shelf: upon request
Demand Registration: precise number of demand rights per year to be
determined
Piggyback Registration: customary piggyback rights
Delay period: ability of BlackRock to suspend registration for a
reasonable period if CEO determines in good faith in consultation with counsel
that use of registration statement would require premature disclosure of
non-public information the disclosure of which would be materially adverse to
BlackRock; with such suspension period to be appropriately time-limited, and
PNC not to be treated less favorably than officers, directors or any other
Significant Stockholder.
Other customary terms, including, e.g., registration procedures,
provision of information for registration statement, indemnity for registration
statement information, underwriters, expenses, etc.
Most favored nation provision with respect to registration rights
granted to any other Significant Stockholder.
Exhibit 5.3(a)
FORM OF
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
NEW BOISE, INC.
New Boise, Inc., a Delaware corporation (hereinafter the
"Corporation") hereby certifies as follows:
1. The name of the corporation is New Boise, Inc. The original
certificate of incorporation of the Corporation (the "Original Certificate of
Incorporation") was filed with the Secretary of State of the State of Delaware
on ________, 2006.
2. This Amended and Restated Certificate of Incorporation (the
"Certificate of Incorporation") amends and restates in its entirety the
Corporation's Original Certificate of Incorporation and has been duly adopted
in accordance with Sections 242 and 245 of the General Corporation Law of the
State of Delaware (the "DGCL") and by written consent of the stockholders of
the Corporation and duly executed and acknowledged by the officers of the
Corporation in accordance with Section 103 of the DGCL.
3. The Original Certificate of Incorporation of the Corporation is
hereby amended and restated to read in its entirety as follows:
FIRST: The name of the corporation is New Boise, Inc.
SECOND: The address of the Corporation's registered office in the
State of Delaware is Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxx xx
Xxxxxxxxxx, Xxxxxx of New Castle, State of Delaware, and the name of its
registered agent at such address is The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act
or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware (the "DGCL").
FOURTH: A. Authorized Shares. The Corporation shall be authorized to
issue 1,000,000,000 shares of stock, of which (i) 500,000,000 shares shall be
shares of Common Stock, par value $0.01 per share (the "Common Stock") and (ii)
500,000,000 shares shall be shares of Preferred Stock, par value $0.01 per
share (the "Preferred Stock ").
B. Preferred Stock. The Preferred Stock may be issued from
time to time in one or more classes or series. The Board of Directors is hereby
authorized to provide for the issuance of shares of Preferred Stock in one or
more classes or series and, by filing a certificate pursuant to the DGCL
(hereinafter referred to as a "Preferred Stock Designation"), to establish from
time to time the number of shares to be included in each such class or series,
and to fix the designations, voting powers (if any), privileges, preferences
and relative, participating, optional or other special rights of the shares of
each such class or series and the qualifications, limitations and restrictions
thereon. The authority of the Board of Directors with respect to each class or
series shall include, but not be limited to, determination of the following:
(1) the designation of the class or series, which may be by
distinguishing number, letter or title;
(2) the number of shares of the class or series, which number
the Board of Directors may thereafter (except where otherwise provided in the
Preferred Stock Designation) increase or decrease (but not below the number of
shares thereof then outstanding) in the manner permitted by law;
(3) the rate of any dividends (or method of determining the
dividends) payable to the holders of the shares of such class or series, any
conditions upon which such dividends shall be paid, the form of payment thereof
(whether cash, securities of the Corporation, securities of another person or
other assets) and the date or dates or the method for determining the date or
dates upon which such dividends shall be payable;
(4) whether dividends, if any, shall be cumulative or
noncumulative and, in the case of shares of any class or series having
cumulative dividend rights, the date or dates or method of determining the date
or dates from which dividends on the shares of such class or series shall
cumulate;
(5) if the shares of such class or series may be redeemed by
the Corporation, the price or prices (or method of determining such price or
prices) at which, the form of payment of such price or prices (which may be
cash, property or rights, including securities of the Corporation or of another
corporation or other entity) for which, the period or periods within which and
the other terms and conditions upon which the shares of such class or series
may be redeemed, in whole or in part, at the option of the Corporation or at
the option of the holder or holders thereof or upon the happening of a
specified event or events, if any, including the obligation, if any, of the
Corporation to purchase or redeem shares of such class or series pursuant to a
sinking fund or otherwise;
(6) the amount payable out of the assets of the Corporation
to the holders of shares of the class or series in the event of any voluntary
or involuntary liquidation, dissolution or winding up of the affairs of the
Corporation;
(7) provisions, if any, for the conversion or exchange of the
shares of such class or series, at any time or times, at the option of the
holder or holder thereof or at the option of the Corporation or upon the
happening of a specified event or events, into shares of any other class or
classes or any other series of the same class of capital stock of the
Corporation or into any other security of the Corporation, or into the stock or
other securities of any other corporation or other entity, and the price or
prices or rate or rates of conversion or exchange and any adjustments
applicable thereto, and all other terms and conditions upon which each
conversion or exchange may be made;
(8) restrictions on the issuance of shares of the same class
or series or of any other class or series of capital stock of the Corporation,
if any; and
(9) the voting rights and powers, if any, of the holders of
shares of the class or series.
C. Common Stock.
(1) For so long as any Stockholder Agreement shall remain in
effect, the Corporation shall recognize the restrictions on transfer contained
therein with respect to the parties thereto; provided that in connection with
any transfer of any stock of the Corporation pursuant to or as permitted by the
Stockholder Agreement, or in connection with the making of any determination
referred to therein:
(a) the Corporation shall be under no obligation to make any
investigation of facts unless an officer, employee or agent of the Corporation
responsible for making such transfer or determination has substantial reason to
believe, or unless the Board of Directors (or a committee of the Board of
Directors designated for the purpose) determines that there is substantial
reason to believe, that any affidavit or other document is incomplete or
incorrect in a material respect or that an investigation would disclose facts
upon which any determination should be made, in either of which events the
Corporation shall make or cause to be made such investigation as it may deem
necessary or desirable in the circumstances and have a reasonable time to
complete such investigation; and
(b) neither the Corporation nor any director, officer,
employee or agent of the Corporation shall be liable in any manner for any
action taken or omitted in good faith.
(2) No stockholder shall be entitled to exercise any right of
cumulative voting.
FIFTH: A. Stockholder Meetings.
(1) Meetings of stockholders may be held within or without
the State of Delaware, as the Bylaws may provide. An annual meeting of the
stockholders of the Corporation for the election of directors and for the
transaction of such other business as may come before the meeting shall be held
at such time and place as shall be determined in accordance with the Bylaws.
Elections of directors need not be by written ballot unless otherwise provided
in the Bylaws.
(2) Except as otherwise required by law and subject to the
rights of the holders of any class or series of stock having a preference over
the Common Stock as to dividends or distributions upon liquidation, special
meetings of stockholders of the Corporation of any class or series for any
purpose or purposes may be called only by:
(a) the Chairman of the Board of Directors;
(b) the President of the Corporation;
(c) a majority of the Board of Directors; or
(d) any committee of the Board of Directors the
powers and authority of which include the power and authority to call such
meetings.
B. Action by Written Consent. Any action required or
permitted to be taken at any annual or special meeting of the stockholders may
be effected by written consent of such stockholders pursuant to Section 228 of
the DGCL if such action has been approved in advance by the requisite vote of
the Board of Directors.
SIXTH: X. Xxxxxx of the Board of Directors. The business and affairs
of the Corporation shall be managed by or under the direction of the Board of
Directors, which shall be constituted as provided in this Article and as
provided by law.
B. Number of Directors. The Board of Directors shall
initially consist of 17 directors, which number of directors may be increased
or decreased from time to time pursuant to a resolution adopted by the
affirmative vote of a majority of the entire Board of Directors, subject to the
provisions of the Bylaws and any Stockholder Agreement.
C. Classes, Election and Term. The Board of Directors shall
be divided into three classes, designated Class I, Class II and Class III. Each
class shall consist, as nearly as may be possible, of one-third of the total
number of directors constituting the entire Board of Directors. Class I
directors shall be elected initially for a one-year term, Class II directors
initially for a two-year term and Class III directors initially for a
three-year term. At each succeeding annual meeting of stockholders beginning in
2007, successors to the class of directors whose term expires at that annual
meeting shall be elected for a three-year term. If the number of directors is
changed, any increase or decrease shall be apportioned among the classes so as
to maintain the number of directors in each class as nearly equal as possible,
but in no case shall a decrease in the number of directors shorten the term of
any incumbent director. A director shall hold office until the annual meeting
of the year in which his term expires and until his successor shall be elected
and shall qualify, subject, however, to prior death, resignation or removal
from office.
D. Removal of Directors. Except as may be provided in a
resolution or resolutions providing for any class or series of Preferred Stock
with respect to any directors elected by the holders of such class or series,
any director, or the entire Board of Directors, may be removed from office at
any time, only for cause (as defined by the Corporation's Bylaws), by the
affirmative vote of the holders of at least eighty percent (80%) of the votes
entitled to be cast by the Voting Stock.
E. Meetings of the Board of Directors. Meetings of the Board
of Directors may be held within or without the State of Delaware, as the Bylaws
may provide.
SEVENTH: A. Liability. A director of the Corporation shall, to the
maximum extent permitted by the laws of the State of Delaware, as now or
hereafter in effect, have no personal liability to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director.
B. Indemnification.
(1) The Corporation shall indemnify its directors and
officers to the fullest extent authorized or permitted by law, as now or
hereafter in effect and such right to indemnification shall continue as to a
person who has ceased to be a director or officer of the Corporation and shall
inure to the benefit of his or her heirs, executors and personal and legal
representatives; provided, however, that, except for proceedings to enforce
rights to indemnification, the Corporation shall not be obligated to indemnify
any director or officer (or his or her heirs, executors or personal or legal
representatives) in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or
consented to by the Board of Directors. The right to indemnification conferred
by this Article SEVENTH shall include the right to be paid by the Corporation
the expenses incurred in defending or otherwise participating in any proceeding
in advance of its final disposition.
(2) The Corporation may, to the extent authorized from time
to time by the Board of Directors, provide rights to indemnification and to the
advancement of expenses to employees and agents of the Corporation similar to
those conferred in this Article SEVENTH to directors and officers of the
Corporation.
(3) The rights to indemnification and to the advance of
expenses conferred in this Article SEVENTH shall not be exclusive of any other
right which any person may have or hereafter acquire under this Certificate of
Incorporation, the Bylaws of the Corporation, any statute, agreement, vote of
stockholders or disinterested directors or otherwise.
C. Modification.
(1) Any repeal or modification of this Article SEVENTH by the
stockholders of the Corporation shall not adversely affect any exclusion of
liability, rights to indemnification and to the advancement of expenses or
other protection of a director, officer, employee or agent of the Corporation
existing at the time of such repeal or modification with respect to any acts or
omissions occurring prior to such repeal or modification.
(2) Any repeal or modification of the laws of the State of
Delaware, as are now or hereafter in effect, shall not adversely affect any
rights to indemnification and to the advancement of expenses or other
protection of a director, officer, employee or agent of the Corporation
existing at the time of such repeal or modification with respect to any acts or
omissions occurring prior to such repeal or modification.
EIGHTH: The Corporation shall be subject to Section 203 of the DGCL.
NINTH: A. Certain Acknowledgments. The provisions of this Article
NINTH shall regulate and define the conduct of certain of the business and
affairs of the Corporation in relation to any Significant Stockholder and
Affiliated Companies (as defined below in this Article NINTH) thereof, in
recognition and anticipation that:
(1) the Significant Stockholder will remain a significant
stockholder of the Corporation;
(2) the directors, officers and/or employees of a Significant
Stockholder or of Affiliated Companies thereof may serve as directors of the
Corporation;
(3) a Significant Stockholder and the Affiliated Companies
thereof engage, are expected to continue to engage, and may in the future
engage in the same, similar or related lines of business as those in which the
Corporation, directly or indirectly, may engage and/or other business
activities than overlap with or compete with those in which the Corporation,
directly or indirectly, may engage;
(4) the Corporation and Affiliated Companies thereof will or
may engage in material business transactions with a Significant Stockholder and
Affiliated Companies thereof; and
(5) as a consequence of the foregoing, it is in the best
interests of the Corporation that the respective rights and duties of the
Corporation, any Significant Stockholder and the Affiliated Companies of each,
and the duties of any directors or officers of the Corporation who are also
directors, officers or employees of the Significant Stockholder or Affiliated
Companies thereof, be determined and delineated in respect of any agreements,
arrangements or transactions between, or opportunities that may be suitable for
both, the Corporation and Affiliated Companies thereof, on the one hand, and
the Significant Stockholder and Affiliated Companies thereof, on the other
hand.
Any person or entity purchasing or otherwise acquiring any interest in
shares of capital stock of the Corporation shall be deemed to have notice of
and consented to the provisions of this Article NINTH.
The provisions of this Article NINTH are in addition to, and not in
limitation of, the provisions of the DGCL and the other provisions of this
Certificate of Incorporation. Any agreement, arrangement, transaction or
business relationship which does not comply with the procedures set forth in
this Article NINTH shall not by reason thereof be deemed void or voidable or
result in any breach of any fiduciary duty or duty of loyalty or failure to act
in good faith or in the best interests of the Corporation or derivation of any
improper personal benefit, but shall be governed by the provisions of this
Certificate of Incorporation, the Bylaws, the DGCL and other applicable law,
B. Certain Agreements, Arrangements and Transactions
Permitted; Certain Fiduciary Duties of Certain Stockholders, Directors and
Officers. The Corporation may from time to time enter into and perform, and
cause or permit any Affiliated Company of the Corporation to enter into and
perform, one or more agreements (or modifications or supplements to
pre-existing agreements), arrangements or transactions with a Significant
Stockholder or Affiliated Companies thereof pursuant to which the Corporation
or an Affiliated Company thereof, on the one hand, and the Significant
Stockholder or an Affiliated Company thereof, on the other hand, agree to or do
engage in transactions of any kind or nature with each other or with Affiliated
Companies thereof and/or agree to or do compete, or refrain from competing or
limit or restrict their competition, with each other, including allocating and
causing their respective directors, officers and employees (including any who
are directors, officers or employees of both) to allocate opportunities between
or to refer opportunities to each other. No such agreement, arrangement or
transaction shall be considered void or voidable solely (i) due to the nature
of the parties thereto or due to the existence of circumstances as described in
paragraph (A) of this Article NINTH or (ii) because any one or more of the
officers or directors of the Corporation who are also directors or officers of
the Significant Stockholder or any Affiliated Companies thereof are present at
or participate in the meeting of the Board of Directors or committee thereof
which authorizes the agreement, arrangement or transaction, or solely because
his or their votes are counted for such purpose. No such agreement, arrangement
or transaction or the performance thereof by the Corporation or the Significant
Stockholder or any Affiliated Company thereof shall be considered (i) contrary
to any fiduciary duty or duty of loyalty that the Significant Stockholder or
any Affiliated Company thereof may owe to the Corporation or any Affiliated
Company thereof or to any stockholder or other owner of an equity interest in
the Corporation by reason of the Significant Stockholder or any Affiliated
Company thereof being a Significant Stockholder of the Corporation or
participating in control of the Corporation or any Affiliated Company thereof
or (ii) contrary to any fiduciary duty or duty of loyalty of any director or
officer of the Corporation who is also a director, officer or employee of the
Significant Stockholder or any Affiliated Company thereof to the Corporation or
such Affiliated Company or any stockholder or other owner of an equity interest
therein. In addition, with respect to any such agreement, arrangement or
transaction, the directors and officers of the Corporation who are also
directors and officers of the Significant Stockholder or any Affiliated Company
thereof (i) shall have fully satisfied their fiduciary duties to the
Corporation and the stockholders, (ii) shall be deemed to have acted in good
faith and in a manner such persons reasonably believe to be in and not opposed
to the best interests of the Corporation and (iii) shall be deemed not to have
breached their duties of loyalty to the Corporation and its stockholders and
not to have derived an improper personal benefit therefrom, if such agreement,
arrangement or transaction shall have been approved in accordance with the
terms of any Stockholder Agreement to which such Significant Stockholder is a
party.
Neither a Significant Stockholder, as a stockholder of the
Corporation, nor any Affiliated Company thereof, shall have or be under any
fiduciary duty or duty of loyalty to refrain from entering into any agreement
or participating in any agreement, arrangement or transaction that meets the
requirements of this paragraph (B) and no director of the Corporation who is
also a director, officer or employee of the Significant Stockholder or any
Affiliated Company thereof shall have or be under any fiduciary duty or duty of
loyalty to the Corporation to refrain from acting on behalf of the Corporation
or any Affiliated Company thereof in respect of any such agreement, arrangement
or transaction or performing any such agreement, arrangement or transaction in
accordance with its terms. The failure of any agreement, arrangement or
transaction between the Corporation or an Affiliated Company thereof, on the
one hand, and the Significant Stockholder or an Affiliated Company thereof, on
the other hand, to satisfy the requirements of this Article NINTH shall not, by
itself, cause such agreement, arrangement or transaction to constitute any
breach of any fiduciary duty or duty of loyalty to the Corporation or to any
Affiliated Company thereof, or to any stockholder or other owner of an equity
interest therein, by the Significant Stockholder or such Affiliated Company
thereof or by any director or officer of the Corporation, the Significant
Stockholder or any of their respective Affiliated Companies.
For purposes of this Article NINTH, any agreement, arrangement or
transaction with any corporation, partnership, joint venture, association or
other entity in which the Corporation owns (directly or indirectly) fifty
percent or more of the outstanding voting stock, voting power, partnership
interests or similar ownership interests, or with any officer or director
thereof, shall be deemed to be an agreement, arrangement or transaction with
the Corporation.
C. Corporate Opportunities.
(1) A Significant Stockholder and its Affiliated Companies
shall have no fiduciary duty, duty of loyalty or other duty not to (i) engage
in the same or similar activities or lines of business as the Corporation, (ii)
do business with any client or customer of the Corporation or (iii) employ or
otherwise engage any officer or employee of the Corporation, and none of the
Significant Stockholder nor its Affiliated Companies nor any officer or
director thereof shall be liable to the Corporation or its stockholders or
other owner of an equity interest therein for breach of any fiduciary duty or
duty of loyalty by reason of any such activities of the Significant Stockholder
or any Affiliated Company thereof or of such person's participation therein. In
the event that a Significant Stockholder or any Affiliated Company thereof
acquires knowledge of a potential transaction or matter which may be a
corporate opportunity for both the Significant Stockholder or any Affiliated
Company thereof and the Corporation, neither the Significant Stockholder nor
its Affiliated Companies nor any officer or director thereof (even if such
officer or director is also an officer or director of the Corporation) shall
have any duty to communicate or present such corporate opportunity to the
Corporation and shall not be liable to the Corporation or its stockholders or
other owner of an equity interest therein for breach of any fiduciary or duty
of loyalty by reason of the fact that the Significant Stockholder or any
Affiliated Company thereof pursues or acquires such corporate opportunity for
itself or the Significant Stockholder or any of its Affiliated Companies or any
officer or director thereof (even if such officer or director is also an
officer or director of the Corporation) directs such corporate opportunity to
another person or does not present such corporate opportunity to the
Corporation.
(2) For the purposes of this Article NINTH, "corporate
opportunities" shall include, but not be limited to, business opportunities
which the Corporation is financially able to undertake, which are, from their
nature, in the line of the Corporation's business, are of practical advantage
to it and are ones in which the Corporation has an interest or a reasonable
expectancy, and in which, by embracing the opportunities, the self-interest of
a Significant Stockholder or any Affiliated Company or its officers or
directors, will be brought into conflict with that of the Corporation.
(3) If any agreement, arrangement or transaction between the
Corporation and a Significant Stockholder and any Affiliated Company involves a
corporate opportunity and is approved in accordance with the procedures set
forth in paragraph (B) of this Article NINTH, the officers and directors of the
Corporation, the Significant Stockholder and any Affiliated Company and their
officers and directors shall (even if such officers and directors are also
directors of the Corporation) also for the purposes of this Article NINTH and
the other provisions of this Certificate of Incorporation and the provisions of
the By-laws (a) have fully satisfied and fulfilled their fiduciary duties to
the Corporation and its stockholders or other owner of an equity interest
therein, (b) be deemed to have acted in good faith and in a manner such persons
reasonably believe to be in and not opposed to the best interests of the
Corporation and (c) be deemed not to have breathed their duties of loyalty to
the Corporation and its stockholders or other owner of an equity interest
therein and not to have derived an improper personal benefit therefrom. Any
such agreement, arrangement or transaction involving a corporate opportunity
not so approved shall not by reason thereof result in any such breach of any
fiduciary duty or duty of loyalty or failure to act in good faith or in the
best interests of the Corporation or derivation of any improper personal
benefit, but shall be governed by the other provisions of this Article NINTH,
this Certificate of Incorporation, the Bylaws, the DGCL and other applicable
law.
D. Modification. No alteration, amendment or repeal of any
provision of this Article NINTH shall terminate the effect of such provisions
or eliminate or reduce the effect of this Article NINTH in respect of any
matter occurring, or any cause of action, suit or claim that, but for this
Article NINTH, would accrue or arise, prior to such alteration, amendment or
repeal.
E. For purposes of this Article NINTH, "Affiliated Company"
shall mean in respect of any Significant Stockholder any company which
controls, is controlled by or is under common control with such Significant
Stockholder (other than the Corporation and any company that is controlled by
the Corporation) and in respect of the Corporation shall mean any company
controlled by the Corporation.
TENTH: The books of the Corporation may be kept (subject to any
provision contained in the DGCL or other applicable statutes) outside the State
of Delaware at such place or places as may be designated from time to time by
the Board of Directors or in the Bylaws of the Corporation.
ELEVENTH: Whenever a compromise or arrangement is proposed between the
Corporation and its creditors or any class of them and/or between the
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, in a summary way, on the
application of the Corporation or of any creditor or stockholder thereof or on
the application of any receiver or receivers appointed for the Corporation
under the provisions of Section 291 of the DGCL or on the application of
trustees in dissolution or of any receiver or receivers appointed for the
Corporation under the provisions of Section 279 of the DGCL, order a meeting of
the creditors or class of creditors, and/or of the stockholders or class of
stockholders of the Corporation, as the case maybe, to be summoned in such
manner as said court directs. If a majority in number representing
three-fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of the Corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of the
Corporation as a consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of the Corporation, as the case may be, and also on the
Corporation.
TWELFTH: Bylaw Amendments. The Bylaws of the Corporation may be
adopted, consistent with law and the provisions of this Certificate of
Incorporation (including any Preferred Stock Designation), and once adopted,
any Bylaw may be altered or repealed by: (1) the affirmative vote of at least a
majority of the members of the Board of Directors then in office, or (2) the
affirmative vote of at least a majority of the voting power of the Voting
Stock, provided that any adoption, alteration or repeal of a Bylaw by the Board
of Directors, if such adoption, alteration or repeal would be inconsistent with
the provisions of any Stockholder Agreement, shall require such approval, if
any, as shall be required by the terms of such Stockholder Agreement.
THIRTEENTH:
A. General Right to Amend Certificate of Incorporation.
(1) Subject to the provisions of any Stockholder Agreement,
the Corporation hereby reserves the right at any time and from time to time to
amend, alter, change or repeal any provision contained in this Certificate of
Incorporation, and to add thereto any other provision authorized by the laws of
the state of Delaware at the time in force, and except as may otherwise be
explicitly provided by any provision of this Certificate of Incorporation, all
rights, preferences and privileges of whatsoever nature conferred upon
stockholders, directors or officers of the Corporation or any other person
whomsoever by and pursuant to this Certificate of Incorporation in its present
form, or as hereafter amended, are granted subject to the right reserved in
this paragraph (A)(1).
(2) Subject to the provisions of paragraph (B) below, the
provisions of any Stockholder Agreement and the rights of the holders of
Preferred Stock, the provisions of this Certificate of Incorporation may only
be altered, amended or repealed, and any inconsistent provision adopted, with
such action (if any) of the Board of Directors as is provided by law, and in
addition to any other vote of stockholders (if any) required by law, and
notwithstanding that a lower vote (or a no vote) of stockholders otherwise
would be required, by the approval of at least a majority of the voting power
of all Voting Stock; provided, however, that the provisions of Articles NINTH
and TWELFTH may be amended only with the approval of at least eight percent
(80%) of the voting power of all Voting Stock.
B. Amendment of this Article. Subject to the provisions of
any Stockholder Agreement, the affirmative vote of the holders of at least
seventy-five percent (75%) of the voting power of all Voting Stock shall be
required to alter, amend or repeal, or to adopt any provision inconsistent
with, this Article TWELFTH.
FOURTEENTH: The Corporation shall have perpetual existence.
FIFTEENTH: For purposes of this Certificate of Incorporation, the
following definitions shall apply:
(1) "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 neither the Corporation nor any of its
Controlled Affiliates shall be deemed to be a Subsidiary or Affiliate of any
Person who is or becomes a party to a Stockholder Agreement solely by virtue of
the Beneficial Ownership by such Person of Capital Stock, the election of
Directors nominated by such Person to the Board, the election of any other
Directors nominated by the Board or any other action taken by such Person which
is expressly permitted under a Stockholder Agreement, in each case in
accordance with the terms and conditions of, and subject to the limitations and
restrictions set forth on such Person in, such Stockholder Agreement (and
irrespective of the characteristics of the aforesaid relationships and actions
under applicable law or accounting principles)
(2) "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 Securities Exchange Act of 1934,
as amended; 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 Person who is or becomes a party to a
Stockholder Agreement be deemed to Beneficially Own any securities which it has
the right to acquire pursuant to any Stockholder Agreement 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 any Person shall not include any Voting
Securities or other securities held by such Person and its Controlled
Affiliates in trust, managed, brokerage, custodial, nominee or other customer
accounts; in trading, inventory, lending or similar accounts of such Person and
Controlled Affiliates of such Person 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 Person and its Controlled
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 the Corporation or avoiding the
provisions hereof or of any Stockholder Agreement. The term "Beneficially Own"
shall have a correlative meaning.
(3) "Capital Stock" means any and all shares (however
designated, whether voting or non-voting) of capital stock issued by the
Corporation.
(4) "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 of 1933, as amended. 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 or an Affiliate has
a proprietary economic interest exceeding 25% of the equity interest in such
collective investment vehicle.
(5) "Controlled Affiliate" of any Person means a Person that
is directly or indirectly controlled by such other Person.
(6) each reference to a "person" shall be deemed to include
not only a natural person, but also a corporation, partnership, joint venture,
association or legal entity of any kind; each reference to a "natural person"
(or to a "record holder" of shares, if a natural person) shall be deemed to
include, in his, her or its representative capacity, a guardian, committee,
executor, administrator or other legal representative of such natural person or
record holder;
(7) "Significant Stockholder" shall mean a person who is a
party to a Stockholder Agreement and who Beneficially Owns more than twenty
percent (20%) of the Voting Stock.
(8) "Stockholder Agreement" shall mean any agreement to which
the Corporation and a holder of Capital Stock is a party that is in effect on
the date of issuance of the initial shares of Series A Participating Preferred
Stock of the Corporation and that relates to the voting of shares of capital
stock by such holder;
(9) "Subsidiary" shall mean, as to any person or entity, a
corporation, part ownership, joint venture, association or other entity in
which such person or entity beneficially owns (directly or indirectly) fifty
percent (50%) or more of the Voting Stock or outstanding voting power,
partnership interests or similar voting interests; and
(10) "Voting Stock" shall mean the then outstanding shares of
Capital Stock of the Corporation entitled to vote generally on the election of
directors and shall exclude any class or series of capital stock of the
Corporation only entitled to vote in the event of dividend arrearages or any
default under any provision of such series thereon, whether or not at the time
of determination there are any such dividend arrearages or defaults.
IN WITNESS WHEREOF, this Certificate of Incorporation which restates,
integrate and amends the provisions of the Original Certificate of
Incorporation of the Corporation, and which has been duly adopted in accordance
with Sections 242 and 245 of the Delaware General Corporation Law, has been
executed by an authorized officer of the Corporation this __th day of ________,
2006.
NEW BOISE, INC.
By:
-----------------
Name:
Title:
By:
-----------------
Name:
Title:
Exhibit 5.3(b)
FORM OF
BY-LAWS OF
NEW BOISE, INC.
a Delaware Corporation
ARTICLE I
OFFICES
Section 1.1 Registered Office. The registered office of New Boise,
Inc. (hereinafter called the "Corporation") within the State of Delaware shall
be at Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxx xx Xxxxxxxxxx, Xxxxxx
of Xxx Xxxxxx, Xxxxx xx Xxxxxxxx 00000, and the name of the registered agent of
the Corporation at such address shall be The Corporation Trust Company.
Section 1.2 Other Offices. The Corporation may also have offices at
such other places, both within and without the State of Delaware, as the Board
of Directors from time to time shall determine or the business of the
Corporation may require.
Section 1.3 Books and Records. The books and records of the
Corporation may be kept outside the State of Delaware at such place or places
as may from time to time be designated by the Board of Directors or officers.
Section 1.4 Certain Definitions. Except where otherwise explicitly
provided, all references herein to the "Certificate of Incorporation" shall
mean the certificate of incorporation of the Corporation as from time to time
amended or restated and in effect including any certificates of designation
(each a "Preferred Stock Designation") filed under section 151(g) (or any
successor provision) of the General Corporation Law of the State of Delaware,
as amended and in effect from time to time (the "DGCL"). In the event of any
amendment of these Bylaws that does not involve a complete restatement thereof,
any reference herein to "the Bylaws" or "these Bylaws" or "herein" or "hereof"
or a like reference shall refer to these Bylaws as so amended. Defined terms
used herein and not otherwise defined shall have the meanings ascribed to them
in the Certificate of Incorporation.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 2.1 Place of Meetings. All meetings of the stockholders shall
be held at any such place, either within or without the State of Delaware, as
shall be designated from time to time by the Board of Directors and stated in
the notice of meeting or in a duly executed waiver thereof.
Section 2.2 Annual Meeting. The annual meeting of the stockholders for
the election of directors and for the transaction of such other business as may
come before the meeting shall be held at such time and place as shall be
determined by the Board of Directors and stated in the notice of the meeting.
Only such business may be conducted as has been brought before an annual
meeting of stockholders by, or at the direction of, the Board of Directors, or
by a stockholder who has given timely written notice to the Secretary of the
Corporation of such stockholder's intention to bring such business before the
meeting pursuant to Section 2.10 of these Bylaws.
Section 2.3 Special Meetings. Special meetings may be called in
accordance with the Certificate of Incorporation. The power of any stockholder
to call a special meeting is specifically denied. The only business which may
be conducted at a special meeting, other than procedural matters and matters
relating to the conduct of the meeting, shall be the matter or matters
described in the notice of such meeting.
Section 2.4 Adjournments. Any meeting of the stockholders may be
adjourned from time to time to reconvene at the same or some other place, and
notice need not be given of any such adjourned meeting if the time and place
thereof are announced at the meeting at which the adjournment is taken. At the
adjourned meeting, the Corporation may transact any business which might have
been transacted at the original meeting. If the adjournment is for more than
thirty days, or if after the adjournment a new record date is fixed for the
adjourned meeting, notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 2.5 Notice of Meetings. Notice of meetings of stockholders
shall be given by the Corporation as required by applicable law not less than
ten days nor more than sixty days before such meeting (unless a different time
is specified by law) to every stockholder entitled by law to notice of such
meeting. Notice of any such meeting need not be given to any stockholder who
shall, either before or after the meeting, submit a signed waiver of notice or
who shall attend such meeting, except when he shall attend for the express
purpose of objecting, at the beginning of the meeting, to the transaction of
any business because the meeting is not lawfully called or convened.
Section 2.6 List of Stockholders. A complete list of the stockholders
entitled to vote at any meeting of stockholders, arranged in alphabetical
order, and showing the address of each stockholder and the number of shares of
each class of capital stock of the Corporation registered in the name of each
stockholder, shall be prepared by the Secretary and shall be open to the
examination of any stockholder, for any purpose germane to the meeting, during
ordinary business hours, either at a place within the city where the meeting is
to be held, which place shall be specified in the notice of the meeting, or, if
not so specified, at the place where the meeting is to be held, for at least
ten days before the meeting and at the place of the meeting during the whole
time of the meeting. The stock ledger of the Corporation shall be the only
evidence as to who are the stockholders entitled to examine the stock ledger
and the list required by this Section 2.6 or to vote in person or by proxy at
any meeting of stockholders.
Section 2.7 Quorum. Unless otherwise required by law or the
Certificate of Incorporation, a majority in voting power of the outstanding
shares of the Corporation entitled to vote on the matters at issue, present in
person or represented by proxy, shall constitute a quorum. If, however, such
quorum shall not be present or represented at any meeting of the stockholders,
the stockholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time, in the manner
provided in Section 2.4, until a quorum shall be present or represented. A
quorum, once established, shall not be broken by the subsequent withdrawal of
enough votes to leave less than a quorum. At any such adjourned meeting at
which there is a quorum, any business may be transacted that might have been
transacted at the meeting originally called.
Section 2.8 Conduct of Meetings. The Board of Directors of the
Corporation may adopt by resolution such rules and regulations for the conduct
of the meeting of the stockholders as it shall deem appropriate. At every
meeting of stockholders, the Chairman of the Board of Directors, or in his
absence or inability to act, the Chief Executive Officer, or, in his absence or
inability to act, the person whom the Vice Chairman shall appoint, shall act as
chairman of, and preside at, the meeting. The Secretary or, in his absence or
inability to act, the person whom the chairman of the meeting shall appoint
secretary of the meeting, shall act as secretary of the meeting and keep the
minutes thereof. Except to the extent inconsistent with such rules and
regulations as adopted by the Board of Directors, the chairman of any meeting
of the stockholders shall have the right and authority to prescribe such rules,
regulations and procedures and to do all such acts as, in the judgment of such
chairman, are appropriate for the proper conduct of the meeting. Such rules,
regulations or procedures, whether adopted by the Board of Directors or
prescribed by the chairman of the meeting, may include, without limitation, the
following: (a) the establishment of an agenda or order of business for the
meeting; (b) the determination of when the polls shall open and close for any
given matter to be voted on at the meeting; (c) rules and procedures for
maintaining order at the meeting and the safety of those present; (d)
limitations on attendance at or participation in the meeting to stockholders of
record of the corporation, their duly authorized and constituted proxies or
such other persons as the chairman of the meeting shall determine; (e)
restrictions on entry to the meeting after the time fixed for the commencement
thereof; and (f) limitations on the time allotted to questions or comments by
participants.
Section 2.9 Nomination of Directors(a).
(a) Only persons who are nominated in accordance with the procedures
in this Section 2.9 shall be eligible for election as directors of the
Corporation, subject to the rights of the holders of Preferred Stock.
Nominations of persons for election to the Board of Directors may be made at
any annual meeting of stockholders (i) by or at the direction of the Board of
Directors (or any duly authorized committee thereof) or (ii) by any stockholder
of the Corporation (A) who is a stockholder of record on the date of the giving
of the notice provided for in this Section 2.9 and on the record date for the
determination of stockholders entitled to vote at such annual meeting and (B)
who complies with the notice procedures set forth in this Section 2.9.
(b) In addition to any other applicable requirements, for a nomination
to be made by a stockholder, such stockholder must have given timely notice
thereof in proper written form to the Secretary of the Corporation, except as
provided in a Stockholder Agreement.
(c) Except as provided in a Stockholder Agreement, to be timely, a
stockholder's notice to the Secretary must be delivered to or mailed and
received at the principal executive offices of the Corporation not less than
one hundred twenty (120) days nor more than one hundred fifty (150) days prior
to the anniversary of the mailing date of the Corporation's proxy materials for
the immediately preceding annual meeting of stockholders; provided, however,
that in the event that the annual meeting is called for a date that is not
within thirty (30) days before or after the anniversary date of such meeting,
notice by the stockholder in order to be timely must be so received not later
than the close of business on the tenth (10th) day following the day on which
notice of the date of the annual meeting was mailed to stockholders or public
disclosure of the date of the annual meeting was made, whichever first occurs.
(d) To be in proper written form, a stockholder's notice to the
Secretary must set forth: (i) as to each person whom the stockholder proposes
to nominate for election as a director (A) the name, age, business address and
residence address of such person, (B) the principal occupation or employment of
such person, (C) the class or series and number of shares of capital stock of
the Corporation which are owned beneficially or of record by such person that
would be required to be disclosed in a proxy statement or other filings
required to be made in connection with solicitations of proxies for election of
directors pursuant to Section 14 of the Securities Exchange Act of 1934, as
amended ("Exchange Act") and the rules and regulations promulgated thereunder;
and (ii) as to the stockholder giving the notice (A) the name and record
address of such stockholder, (B) the class or series and number of shares of
capital stock of the Corporation which are owned beneficially or of record by
such stockholder, (C) a description of all arrangements or understandings
between such stockholder and each proposed nominee and any other person or
persons (including their names) pursuant to which the nomination(s) are to be
made by such stockholder, (D) a representation that such stockholder intends to
appear in person or by proxy at the annual meeting to nominate the persons
named in its notice and (E) any other information relating to such stockholder
that would be required to be disclosed in a proxy statement or other filings
required to be made in connection with solicitations of proxies for election of
directors pursuant to Section 14 of the Exchange Act and the rules and
regulations promulgated thereunder. Such notice must be accompanied by a
written consent of each proposed nominee to being named as a nominee and to
serve as a director if elected.
(e) If the chairman of the annual meeting determines that a nomination
was not made in accordance with the foregoing procedures, the chairman shall
declare to the meeting that the nomination was defective and such defective
nomination shall be disregarded.
(f) The Corporation's Nominating and Governance Committee (or, if
there is no such committee, the Board of Directors or any other duly authorized
committee thereof) shall nominate for election to the Board of Directors (i)
any person that is designated as a nominee for the Board of Directors pursuant
to any Stockholder Agreement. Notwithstanding any other provision contained
herein, no stockholder may make any nominations pursuant to Section 2.9(a)-(d)
if such stockholder designated any person or persons for nomination pursuant to
any Stockholder Agreement and, pursuant to this Section 2.9(f), the Nominating
and Governance Committee (or, if there is no such committee, the Board of
Directors or any other duly authorized committee thereof) shall have nominated
such person or persons.
Section 2.10 Business at Annual Meetings.
(a) No business may be transacted at an annual meeting of
stockholders, other than business that is either (i) specified in the notice of
meeting (or any supplement thereto) given by or at the direction of the Board
of Directors (or any duly authorized committee thereof), (ii) otherwise
properly brought before the annual meeting by or at the direction of the Board
of Directors (or any duly authorized committee thereof) or (iii) otherwise
properly brought before the annual meeting by any stockholder of the
Corporation (A) who is a stockholder of record on the date of the giving of the
notice provided for in this Section 2.10 and on the record date for the
determination of stockholders entitled to vote at such annual meeting and (B)
who complies with the notice procedures set forth in this Section 2.10.
(b) In addition to any other applicable requirements, for business to
be properly brought before an annual meeting by a stockholder, such stockholder
must have given timely notice thereof in proper written form to the Secretary
of the Corporation.
(c) To be timely, a stockholder's notice to the Secretary must be
delivered to or mailed and received at the principal executive offices of the
Corporation not less than one hundred twenty (120) days nor more than one
hundred fifty (150) days prior to the anniversary of the mailing date of the
Corporation's proxy materials for the immediately preceding annual meeting of
stockholders; provided, however that in the event that the annual meeting is
called for a date that is not within thirty (30) days before or after the
anniversary date of such meeting, notice by the stockholder in order to be
timely must be so received not later than the close of business on the tenth
(10th) day following the day on which notice of the date of the annual meeting
was mailed to stockholders or public disclosure of the date of the annual
meeting was made, whichever first occurs.
(d) To be in proper written form, a stockholder's notice to the
Secretary must set forth as to each matter such stockholder proposes to bring
before the annual meeting (i) a brief description of the business desired to be
brought before the annual meeting and the reasons for conducting such business
at the annual meeting, (ii) the name and record address of such stockholder,
(iii) the class or series and number of shares of capital stock of the
Corporation which are owned beneficially or of record by such stockholder, (iv)
a description of all arrangements or understandings between such stockholder
and any other person or persons (including their names) in connection with the
proposal of such business by such stockholder and any material interest of such
stockholder in such business and (v) a representation that such stockholder
intends to appear in person or by proxy at the annual meeting to bring such
business before the meeting.
(e) Once business has been properly brought before the annual meeting
in accordance with such procedures, nothing in this Section 2.10 shall be
deemed to preclude discussion by any stockholder of any such business. If the
chairman of an annual meeting determines that business was not properly brought
before the annual meeting in accordance with the foregoing procedures, the
Chairman shall declare to the meeting that the business was not properly
brought before the meeting and such business shall not be transacted.
Section 2.11 Voting. Unless otherwise required by law, the Certificate
of Incorporation or these Bylaws, any question brought before any meeting of
stockholders, other than the election of directors, shall be decided by the
vote of the holders of a majority of the votes of shares of capital stock
represented and entitled to vote thereat, voting as a single class. Every
reference in these Bylaws to a majority or other proportion of shares, or a
majority or other proportion of the votes of shares, of capital stock shall
refer to such majority or other proportion of the votes to which such shares of
capital stock are entitled as provided in the Certificate of Incorporation.
Votes of stockholders entitled to vote at a meeting of stockholders may be cast
in person or by proxy but no proxy shall be voted on or after three years from
its date, unless such proxy provides for a longer period. The Board of
Directors, in its discretion, or the chairman of the meeting of stockholders,
in such chairman's discretion, may require that any votes cast at such meeting
shall be cast by written ballot. Abstentions shall not be considered to be
votes cast.
ARTICLE III
BOARD OF DIRECTORS
Section 3.1 General Powers. The business and affairs of the
Corporation shall be managed by or under the direction of the Board of
Directors. In addition to the powers and authorities expressly conferred upon
them by these Bylaws, the Board of Directors may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by statute or
by the Certificate of Incorporation or by these Bylaws required to be exercised
or done by the stockholders.
Section 3.2 Number, Qualifications, Election and Term of Office.
(a) The Board of Directors shall consist initially of seventeen (17)
directors. Subject to the rights of the holders of Preferred Stock and the
terms of any Stockholder Agreement, and with the consent of any Significant
Stockholder that is a party to a Stockholder Agreement, the number of directors
on the Board of Directors may be increased or decreased from time to time
exclusively pursuant to a resolution adopted by: the affirmative vote of a
majority of the entire Board of Directors then in office. No reduction in the
number of directors shall have the effect of shortening the term of any
director in office at the time such reduction becomes effective.
(b) The retirement age of and other restrictions and qualifications
for directors constituting the Board of Directors shall be as authorized from
time to time by the affirmative vote of 66 ?% of the members of the Board of
Directors then in office. Members of the Board of Directors need not be
residents of the State of Delaware and need not be stockholders of the
Corporation.
(c) The directors shall be divided into three classes, Class I, Class
II and Class III, as provided in the Certificate of Incorporation, and shall
hold office in accordance with the provisions as set forth therein.
Section 3.3 Vacancies. Unless otherwise required by law, by any
Stockholder Agreement or by the Certificate of Incorporation, vacancies arising
through death, resignation, removal, an increase in the number of directors or
otherwise may be filled by a majority of the directors then in office, even
though less than a quorum, or by a sole remaining director, or (y) by the
stockholders if such vacancy resulted from the action of stockholders (in which
event such vacancy may not be filled by the directors or a majority thereof),
and in any event the directors so chosen shall hold office until the next
election for such class and until their successors are duly elected and
qualified, or until their earlier death, resignation or removal.
Section 3.4 Removal. Any director or the entire Board of Directors may
only be removed for cause, such removal to be by the affirmative vote of the
shares representing eighty percent (80%) of the votes entitled to be cast by
the Voting Stock. "Cause" for removal of a director shall be deemed to exist
only if: (i) the director whose removal is proposed has been convicted, or when
a director is granted immunity to testify when another has been convicted, of a
felony by a court of competent jurisdiction and such conviction is no longer
subject to direct appeal; (ii) such director has been found by the affirmative
vote of a majority of the Directors then in office at any regular or special
meeting of the Board of Directors called for that purpose, or by a court of
competent jurisdiction, to have been guilty of willful misconduct in the
performance of his duties to the Corporation in a matter of substantial
importance to the Corporation; (iii) such director has been adjudicated by a
court of competent jurisdiction to be mentally incompetent, which mental
incompetency directly affects his ability as a director of the Corporation; or
(iv) the entry of any order against such director by any governmental body
having regulatory authority with respect to the Corporation's business.
Notwithstanding the foregoing, whenever holders of outstanding shares of one or
more series of Preferred Stock are entitled to elect directors of the
Corporation pursuant to the provisions applicable in the case of arrearages in
the payment of dividends or other defaults contained in the resolution or
resolutions of the Board of Directors providing for the establishment of any
such series, any such director of the Corporation so elected may be removed in
accordance with the provisions of such resolution or resolutions. "Voting
Stock" shall mean the shares of the then outstanding capital stock entitled to
vote generally on the election of directors and shall exclude any class or
series of capital stock only entitled to vote in the event of dividend
arrearages thereon or other defaults thereunder, whether or not at the time of
the determination there are any such dividend arrearages or defaults.
Section 3.5 Place of Meetings. Meetings of the Board of Directors
shall be held at such place or places, within or without the State of Delaware,
as the Board of Directors may from time to time determine or as shall be
specified in the notice of any such meeting. Each regular meeting of the Board
of Directors shall be held at the location specified in the notice with respect
to such meeting or, if no such notice is provided or no location is specified
therein, at the principal executive offices of the Corporation.
Section 3.6 Regular Meetings. Regular meetings of the Board of
Directors shall be held at such time and place as the Board of Directors may
fix. Notice of regular meetings of the Board of Directors need not be given
except as otherwise required by applicable law or these Bylaws.
Section 3.7 Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman of the Board of Directors or at the
request of twenty percent (20%) of the directors. The person or persons
authorized to call a special meeting of the Board of Directors may fix the
place, date and time of the meeting. Upon request by the person or persons
authorized to call such meetings, the Secretary of the Corporation shall give
any requisite notice for the meeting.
Section 3.8 Notice of Meetings. Notice of each special meeting of the
Board of Directors (and of each regular meeting for which notice shall be
required) shall be given by the Secretary as hereinafter provided in this
Section 3.8, in which notice shall be stated the date, time and place of the
meeting. Notice of a special meeting shall state the general purpose of the
meeting, but other routine business may be conducted at a special meeting
without such matter being stated in the notice. Notice of each meeting shall be
given to each director either by mail not less than forty-eight (48) hours
before the date of such meeting, by telephone or telegram on twenty-four (24)
hours notice, or on such shorter notice as the person or persons calling such
meeting may deem necessary or appropriate under the circumstances. Notice of
any meeting need not be given to any director who shall, either before or after
the meeting, submit a signed waiver of notice or who shall attend such meeting,
except when he shall attend for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened.
Section 3.9 Quorum; Required Vote. Except as otherwise provided by
law, the Certificate of Incorporation, any Stockholder Agreement and Section
3.3 of these Bylaws, at all meetings of the Board of Directors, a majority of
the entire Board of Directors shall constitute a quorum for the transaction of
business and the act of a majority of the directors present at any meeting at
which there is a quorum shall be the act of the Board of Directors. In the
absence of a quorum at any meeting of the Board of Directors, a majority of the
directors present thereat may adjourn such meeting from time to time to another
time and place. Notice of the time and place of any such adjourned meeting
shall be given to all of the directors unless such time and place were
announced at the meeting at which the adjournment was taken, in which case such
notice shall only be given to the directors who were not present thereat. At
any adjourned meeting at which a quorum is present, any business may be
transacted which might have been transacted at the meeting as originally
called.
Section 3.10 Organization. At each meeting of the Board of Directors,
the Chairman of the Board of Directors or, in his absence, the Vice Chairman or
another director chosen by a majority of the directors present, shall act as
chairman of the meeting and preside thereat. The Secretary or, in his absence,
any person appointed by the chairman, shall act as secretary of the meeting and
keep the minutes thereof.
Section 3.11 Resignations. Any director of the Corporation may resign
at any time by giving written notice of his resignation to the Chairman of the
Board of Directors, the President or the Secretary. Any such resignation shall
take effect at the time specified therein or, if the time when it shall become
effective shall not be specified therein, immediately upon its receipt. Unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
Section 3.12 Compensation. Directors shall receive such compensation,
including fees and reimbursement of expenses, for their services as the Board
of Directors may determine from time to time. No such payment shall preclude
any director from serving the Corporation in any other capacity and receiving
compensation thereof.
Section 3.13 Action by Written Consent. Unless otherwise provided by
the Certificate of Incorporation or these Bylaws, any action required or
permitted to be taken at any meeting of the Board of Directors or any committee
thereof may be taken without a meeting if all members of the Board of Directors
or of such committee, as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes of the proceedings of the Board
of Directors or such committee, as the case may be.
Section 3.14 Telephonic Meeting. Unless otherwise provided by the
Certificate of Incorporation, any one or more members of the Board of Directors
or any committee thereof may participate in a meeting of the Board of Directors
or such committee by means of a conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation by such means shall constitute presence in person
at a meeting.
Section 3.15 Board Committees.
(a) The Board of Directors may by resolution designate one or more
committees (in addition to the mandatory Standing Committees as set forth in
Section 3.15(e) below) consisting of one or more directors of the Corporation
which, to the extent authorized in any resolution of the Board of Directors or
these Bylaws and permissible under the DGCL, the Certificate of Incorporation
and any Stockholder Agreement, shall have and may exercise any or all the
powers and authority of the Board of Directors in the management of the
business and affairs of the Corporation, except that no committee (including
any Standing Committee) shall have the power to take any action which requires,
pursuant to these Bylaws or any Stockholder Agreement, the affirmative vote of
at least a majority or any greater proportion of the entire Board of Directors
then in office.
(b) Except as provided in any Stockholder Agreement, with respect to
all committees designated in accordance with this Section 3.15, the Board of
Directors may designate one or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of
any such committee. With respect to all Board committees designated in
accordance with this Section 3.15, in the absence or disqualification of a
member of a committee, and in the absence of a designation by the Board of
Directors of an alternate member to replace the absent or disqualified member,
the member or members thereof present at any meeting and not disqualified from
voting, whether or not such member or members constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any absent or disqualified member. Any committee may
authorize the seal of the Corporation to be affixed to all papers which may
require it.
(c) A majority of the members of any committee may determine such
committee's procedures for the conduct of business and may fix the time and
place of its meetings, unless the Board of Directors shall by resolution
otherwise provide. Notice of such meetings shall be given to each member of the
committee in the same manner as provided for meetings of the Board of Directors
by these Bylaws. Each committee shall keep written minutes of its proceedings
and shall report such proceedings to the Board of Directors when required.
Except as otherwise provided by resolution of the Board of Directors or of such
committee, a quorum for the transaction of business by a committee at a meeting
thereof shall be a majority of the members and the affirmative vote of a
majority of the members present at a meeting at which a quorum is present shall
be the act of the committee.
(d) Nothing herein shall be deemed to prevent the Board of Directors
from appointing one or more committees consisting in whole or in part of one or
more officers, employees or persons who are not directors of the Corporation to
conduct any part of the business or affairs of the Corporation; provided,
however, that no such committee shall have or may exercise any authority of the
Board of Directors.
(e) Standing Committees.
The standing committees which, subject to Section 3.15(a), shall be
appointed from time to time by the Board of Directors shall be: the Executive
Committee, the Audit Committee, the Nominating and Governance Committee and the
Compensation Committee. Subject to the terms of any Stockholder Agreement:
(i) Executive Committee.
the Executive Committee shall consist of the Chairman and
Chief Executive Officer and not less than four other directors who
shall from time to time be appointed by the Board of Directors. The
Executive Committee shall have and exercise in the intervals between
the meetings of the Board of Directors all the powers of the Board of
Directors, except as prohibited by applicable law. All acts done and
powers conferred by the Executive Committee from time to time shall be
deemed to be, and may be certified as being, done and conferred under
authority of the Board of Directors.
(ii) Audit Committee.
the Board of Directors shall appoint annually the Audit
Committee consisting of not less than three directors, all of whom
shall be Independent Directors. The Audit Committee will select and
oversee the Corporation's auditors, with whom the Audit Committee
will, among other things, review the scope of audit and non-audit
assignments and related fees, accounting principles used by the
Corporation in financial reporting, internal auditing procedures and
the adequacy of the Corporation's risk management, compliance and
internal control procedures.
(iii) Nominating and Governance Committee.
the Board of Directors shall appoint annually the members of
the Nominating and Governance Committee, consisting of not less than
three directors, all of whom shall be Independent Directors. The
Nominating and Governance Committee will review the qualifications of
potential candidates for the Board of Directors, report its findings
to the Board of Directors and propose to the Board of Directors
nominations for board memberships for approval by the Board of
Directors and, if appropriate, submission by the Board of Directors to
the stockholders of the Corporation for election. The Nominating and
Governance Committee will also recommend to the Board of Directors
(for adoption by the Board of Directors) the Corporate Governance
Guidelines applicable to the Corporation, lead the Board of Directors
in its annual review of the performance of the Board of Directors and
management and recommend to the Board of Directors director nominees
for each committee.
(iv) Compensation Committee.
the Board of Directors shall appoint annually the members of
the Compensation Committee, consisting of not less than three
directors. The Compensation Committee will administer such
compensation plans as the Board of Directors may determine from time
to time, and will establish the compensation for the Corporation's
executive officers. The Compensation Committee may by resolution
designate a subcommittee to administer the Corporation's compensation
plans.
(f) For purposes of this Section 3.15, "Independent Director" means
any Director who (i) is or would be an "independent director" with respect to
New Boise pursuant to Section 303A.02 of the New York Stock Exchange Listed
Company Manual and Section l0A of the Exchange Act (or any successor
provisions) and (ii) was not nominated or proposed for nomination by or on
behalf of a Significant Stockholder or any Affiliates or Designated Directors
of a Significant Stockholder.
ARTICLE IV
OFFICERS
Section 4.1 Designation. The officers of the Corporation shall be
elected by the Board of Directors and shall include a Chief Executive Officer,
President, Chief Financial Officer, Treasurer and Secretary. The Board of
Directors of the Corporation, in its discretion, may also elect a Chairman of
the Board of Directors (who must be a director), one or more Vice Chairmen (who
need not be a director) and one or more Managing Directors, Directors, Vice
Presidents, Assistant Treasurers, Assistant Secretaries and other officers.
Section 4.2 Election and Tenure. Officers and assistant officers of
the Corporation may, but need not, also be members of the Board of Directors or
stockholders of the Corporation. At its first meeting after each annual meeting
of the stockholders, the Board of Directors shall elect the officers or provide
for the appointment thereof. Unless otherwise provided by the Certificate of
Incorporation, the term of each officer elected by the Board of Directors shall
be until the first meeting of the Board of Directors following the next annual
meeting of stockholders and until his successor is elected and qualified or
until his earlier death, resignation or removal in the manner specified in this
Section 4.2. Any officer elected or appointed by the Board of Directors may be
removed by the Board of Directors at any time with or without cause by the
majority vote of the members of the Board of Directors then in office. Any
officer or assistant officer appointed by another officer may be removed from
office with or without cause by such officer. The removal of an officer shall
be without prejudice to his contract rights, if any. The election or
appointment of an officer shall not of itself create contract rights. Any
officer of the Corporation may resign at any time by giving written notice of
his resignation to the Chairman of the Board of Directors, the President or the
Secretary. Any such resignation shall take effect at the time specified therein
or, if the time when it shall become effective shall not be specified therein,
immediately upon its receipt. Unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
Should any vacancy occur among the officers, the position shall be filled for
the unexpired portion of the term by appointment made by the Board of Directors
or, in the case of offices held by officers who may be appointed by other
officers, by any officer authorized to appoint such officer. Any individual may
be elected to, and may hold, more than one office of the Corporation.
Section 4.3 Duties. Except as set forth in Section 4.5, the powers and
duties of the several officers shall be as provided from time to time by
resolution or other directive of the Board of Directors. In the absence of such
provisions, the respective officers shall have the powers and shall discharge
the duties customarily and usually held and performed by like officers of
corporations similar in organization and business purposes to the Corporation.
Section 4.4 Compensation. Officers may be paid such reasonable
compensation as the Board of Directors may from time to time authorize and
direct. The Board of Directors may delegate its authority to determine
compensation to a committee.
Section 4.5 Responsibilities of the Chief Executive Officer.
Subject to the direction of the Board of Directors, the Chief
Executive Officer shall have the general supervision of the policies, business
and operations of the Corporation, and of the other officers, agents and
employees of the Corporation and, except as otherwise provided in these Bylaws
or by the Board of Directors, shall have all the other powers and duties as are
usually incident to the Chief Executive Officer of a corporation. In the
absence of the Chief Executive Officer, his rights and duties shall be
performed by such other officer or officers as shall be designated by the Board
of Directors. To the extent not specifically appointed to a Committee, the
Chief Executive Officer of the Corporation shall be ex officio a member of all
Committees except the Audit Committee, the Nominating and Governance Committee
and the Compensation Committee.
ARTICLE V
STOCK CERTIFICATES AND THEIR TRANSFER
Section 5.1 Uncertificated and Certificated Shares; Form of
Certificates. Effective at such time as the President or any Vice President or
the Treasurer of the Corporation designates in writing to the Corporate
Secretary and any transfer agents of the Corporation with respect to any class
of stock of the Corporation, the shares of such class shall be uncertificated
shares, provided that the foregoing shall not apply to shares represented by a
certificate until such certificate is surrendered to the Corporation and
provided further that upon request every holder of uncertificated shares shall
be entitled, to the extent provided in Section 158 of the DGCL, to have a
certificate signed in the name of the Corporation (i) by the President or a
Vice President and (ii) by the Treasurer or an Assistant Treasurer, or the
Secretary or an Assistant Secretary, of the Corporation, certifying the number
of shares owned by such stockholder in the Corporation.
Section 5.2 Record Owners. A record of the name and address of the
holder of each certificate, the number of shares represented thereby and the
date of issue thereof shall be made on the Corporation's books. The Corporation
shall be entitled to recognize the exclusive right of a person registered on
its records as the owner of shares of stock to receive dividends and to vote as
such owner, shall be entitled to hold liable for calls and assessments a person
registered on its records as the owner of shares of stock, and shall not be
bound to recognize any equitable or other claim to or interest in such share or
shares of stock on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
the State of Delaware.
Section 5.3 Transfers of Stock. Stock of the Corporation shall be
transferable in the manner prescribed by law and in these Bylaws. Transfers of
stock shall be made on the books of the Corporation only by the person named as
the holder thereof on the stock records of the Corporation, by such person's
attorney lawfully constituted in writing, and in the case of shares represented
by a certificate upon the surrender of the certificate thereof, which shall be
cancelled before a new certificate shall be issued. No transfer of stock shall
be valid as against the Corporation for any purpose until it shall have been
entered in the stock records of the Corporation by an entry showing from and to
whom transferred. To the extent designated by the President or any Vice
President or the Treasurer of the Corporation, the Corporation may recognize
the transfer of fractional uncertificated shares, but shall not otherwise be
required to recognize the transfer of fractional shares.
Section 5.4 Transfer Agents and Registrars. The Board of Directors may
appoint, or authorize any officer or officers to appoint, one or more transfer
agents and one or more registrars. If any certificate is countersigned (a) by a
transfer agent other than the Corporation or its employee, or (b) by a
registrar other than the Corporation or its employee, any signature on the
certificate may be a facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the Corporation with the
same effect as if such person were such officer, transfer agent or registrar at
the date of issue.
Section 5.5 Regulations. The Board of Directors may make such
additional rules and regulations, not inconsistent with these Bylaws, as it may
deem expedient concerning the issue, transfer and registration of certificates
for shares of stock of the Corporation.
Section 5.6 Fixing the Record Date.
(a) In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, the Board of Directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing the record
date is adopted by the Board of Directors, and which record date shall not be
more than sixty (60) nor less than ten (10) days before the date of such
meeting. If no record date is fixed by the Board of Directors, the record date
for determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day next preceding the
day on which notice is given, or, if notice is waived, at the close of business
on the day next preceding the day on which the meeting is held. A determination
of stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned
meeting.
(b) In order that the Corporation may determine the stockholders
entitled to consent to corporate action in writing without a meeting, the Board
of Directors may fix a record date, which record date shall not precede the
date upon which the resolution fixing the record date is adopted by the Board
of Directors, and which record date shall not be more than ten (10) days after
the date upon which the resolution fixing the record date is adopted by the
Board of Directors. If no record date has been fixed by the Board of Directors,
the record date for determining stockholders entitled to consent to corporate
action in writing without a meeting, when no prior action by the Board of
Directors is required by law, shall be the first date on which a signed written
consent setting forth the action taken or proposed to be taken is delivered to
the Corporation by delivery to its registered office in the State of Delaware,
its principal place of business, or an officer or agent of the Corporation
having custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery made to the Corporation's registered office shall be by hand
or by certified or registered mail, return receipt requested. If no record date
has been fixed by the Board of Directors and prior action by the Board of
Directors is required by law, the record date for determining stockholders
entitled to consent to corporate action in writing without a meeting shall be
at the close of business on the day on which the Board of Directors adopts the
resolutions taking such prior action.
(c) In order that the Corporation may determine the stockholders
entitled to receive payment of any dividend or other distribution or allotment
of any rights or the stockholders entitled to exercise any rights in respect of
any change, conversion or exchange of stock, or for the purpose of any other
lawful action, the Board of Directors may fix a record date, which record date
shall not precede the date upon which the resolution fixing the record date is
adopted, and which record date shall be not more than sixty (60) days prior to
such action. If no record date is fixed, the record date for determining
stockholders for any such purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating thereto.
Section 5.7 Lost Certificates. The Board of Directors may direct a new
certificate to be issued in place of any certificate theretofore issued by the
Corporation alleged to have been lost, stolen or destroyed, upon the making of
an affidavit of that fact by the person claiming the certificate of stock to be
lost, stolen or destroyed. When authorizing such issue of a new certificate,
the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed
certificate, or the owner's legal representative, to advertise the same in such
manner as the Board of Directors shall require and/or to give the Corporation a
bond in such sum as it may direct as indemnity against any claim that may be
made against the Corporation with respect to the certificate alleged to have
been lost, stolen or destroyed or the issuance of such new certificate.
ARTICLE VI
INDEMNIFICATION AND INSURANCE
Section 6.1 Right to Indemnification. Each person who was or is made a
party or is threatened to be made a party to or is involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a director or officer,
of the Corporation or is or was serving at the request of the Corporation as a
director or officer of another company, partnership, joint venture, trust or
other enterprise, including service with respect to employee benefit plans,
whether the basis of such proceeding is alleged action in an official capacity
as a director or officer or in any other capacity while serving as a director
or officer shall be indemnified and held harmless by the Corporation to the
fullest extent authorized by the DGCL, as the same exists or may hereafter be
amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader indemnification rights
than said law permitted the Corporation to provide prior to such amendment),
against all expense, liability and loss (including attorneys' fees, judgments,
fines, ERISA excise taxes or penalties and amounts paid or to be paid in
settlement) incurred or suffered by such person in connection therewith and
such director or officer and shall inure to the benefit of his or her heirs,
executors and administrators; provided, however, that, except as provided in
Section 6.2 hereof, the Corporation shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such person only if such proceeding (or part thereof) was authorized by the
Board of Directors of the Corporation. The right to indemnification conferred
in this Section 6.1 shall be a contract right and shall include the right to be
paid by the Corporation the expenses incurred in defending any such proceeding
in advance of its final disposition; provided, however, that, if the DGCL
requires, the payment of such expenses incurred by a director or officer in his
or her capacity as a director or officer (and not in any other capacity in
which service was or is rendered by such person while a director or officer,
including, without limitation, service to an employee benefit plan) in advance
of the final disposition of a proceeding, shall be made only upon delivery to
the Corporation of an undertaking, by or on behalf of such director or officer,
to repay all amounts so advanced if it shall ultimately be determined that such
director or officer is not entitled to be indemnified under this Section 6.1 or
otherwise. The Corporation may, by action of its Board of Directors, provide
indemnification to employees and agents of the Corporation with the same scope
and effect as the foregoing indemnification of directors and officers.
Section 6.2 Right of Claimant to Bring Suit. If a claim under Section
6.1 is not paid in full by the Corporation within thirty (30) days after a
written claim has been received by the Corporation, the claimant may at any
time thereafter bring suit against the Corporation to recover the unpaid amount
of the claim and, if successful in whole or in part, the claimant shall be
entitled to be paid also the expense of prosecuting such claim. It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standards of
conduct which make it permissible under the DGCL for the Corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
DGCL, nor an actual determination by the Corporation (including its Board of
Directors, independent legal counsel or its stockholders) that the claimant has
not met such applicable standard of conduct, shall be a defense to the action
or create a presumption that the claimant has not met the applicable standard
of conduct.
Section 6.3 Non-Exclusivity of Rights. The right to indemnification
and the payment of expenses incurred in defending a proceeding in advance of
its final disposition conferred in this Article VI shall not be exclusive of
any other right which any person may have or hereafter acquire under any
statute, provision of the Certificate of Incorporation, Bylaws, agreement, vote
of stockholders or disinterested directors or otherwise.
Section 6.4 Insurance. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any such expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the DGCL.
ARTICLE VII
GENERAL PROVISIONS
Section 7.1 Seal. The seal of the Corporation shall be in such form as
shall be approved by the Board of Directors. The seal may be used by causing it
or a facsimile thereof to be impressed or affixed or reproduced or otherwise,
as may be prescribed by law or custom or by the Board of Directors.
Section 7.2 Fiscal Year. The fiscal year of the Corporation shall
begin on January 1 and end on December 31 of each year.
Section 7.3 Checks, Notes, Drafts, Etc. All checks, notes, drafts or
other orders for the payment of money of the Corporation shall be signed,
endorsed or accepted in the name of the Corporation by such officer, officers,
person or persons as from time to time may be designated by the Board of
Directors or by an officer or officers authorized by the Board of Directors to
make such designation.
Section 7.4 Voting of Stock in Other Persons. Unless otherwise
provided by resolution of the Board of Directors, the Chief Executive Officer,
from time to time, may (or may appoint one or more attorneys or agents to) cast
the votes that the Corporation may be entitled to cast as a stockholder or
otherwise in any other Person, any of whose shares or securities may be held by
the Corporation, at meetings of the holders of the shares or other securities
of such other corporation, or consent in writing to any action by any such
other corporation. In the event one or more attorneys or agents are appointed,
the Chief Executive Officer may instruct the person or persons so appointed as
to the manner of casting such votes or giving such consent. The Chief Executive
Officer may, or may instruct the attorneys or agents appointed to, execute or
cause to be executed in the name and on behalf of the Corporation and under its
seal or otherwise, such written proxies, consents, waivers or other instruments
as may be necessary or proper in the circumstances relating to securities owned
by the Corporation.
Section 7.5 Dividends. Subject to the provisions of the DGCL and the
Certificate of Incorporation, dividends upon the shares of capital stock of the
Corporation may be declared by the Board of Directors at any regular or special
meeting in accordance with the voting requirements set forth in Section 3.10 if
applicable. Dividends may be paid in cash, in property or in shares of stock of
the Corporation, unless otherwise provided by the DGCL or the Certificate of
Incorporation.
ARTICLE VIII
AMENDMENTS
Except as otherwise provided in any Stockholder Agreement and subject to
Section 3.10, these Bylaws may be amended, altered, changed, adopted and
repealed or new bylaws adopted by the affirmative vote of at least a majority
of the members of the Board of Directors then in office; provided that any
adoption, alteration or repeal of any Bylaw by the Board of Directors, if such
adoption, alteration or repeal would be inconsistent with the provisions of any
Stockholder Agreement, shall require such approval, if any, as shall be
required by the terms of such Stockholder Agreement.
