Exhibit 10.2
STOCKHOLDER AGREEMENT
BETWEEN
XXXXXXX XXXXX & CO., INC.
AND
NEW BOISE, 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.................................................7
Section 1.3 Other Definitional Provisions.......................................7
Section 1.4 Methodology for Calculations........................................8
ARTICLE II
SHARE OWNERSHIP
Section 2.1 Acquisition of Additional New BlackRock Capital Stock...............8
Section 2.2 Prohibition of Certain Communications and Actions...................9
Section 2.3 Purchases of Additional Securities.................................11
Section 2.4 New BlackRock Share Repurchases....................................11
ARTICLE III
TRANSFER RESTRICTIONS
Section 3.1 General Transfer Restrictions......................................12
Section 3.2 Restrictions on Transfer...........................................12
Section 3.3 Right of Last Refusal..............................................13
Section 3.4 Legend on Securities...............................................14
Section 3.5 Change of Control..................................................15
ARTICLE IV
CORPORATE GOVERNANCE
Section 4.1 Composition of the Board...........................................15
Section 4.2 Vote Required for Board Action; Board Quorum.......................16
Section 4.3 Committees.........................................................18
Section 4.4 Certificate of Incorporation and Bylaws to be Consistent...........19
Section 4.5 Information Rights.................................................19
Section 4.6 Voting Agreements..................................................21
Section 4.7 Related Party Transactions.........................................21
ARTICLE V
NON-COMPETITION
Section 5.1 Non-Competition....................................................22
ARTICLE VI
MISCELLANEOUS
Section 6.1 Conflicting Agreements.............................................27
Section 6.2 Termination........................................................27
Section 6.3 Ownership Information..............................................27
Section 6.4 Savings Clause.....................................................27
Section 6.5 Amendment and Waiver...............................................27
Section 6.6 Severability.......................................................28
Section 6.7 Entire Agreement...................................................28
Section 6.8 Successors and Assigns.............................................28
Section 6.9 Counterparts.......................................................28
Section 6.10 Remedies...........................................................28
Section 6.11 Notices............................................................29
Section 6.12 Governing Law; Consent to Jurisdiction.............................29
Section 6.13 Interpretation.....................................................30
Section 6.14 Effectiveness......................................................30
STOCKHOLDER AGREEMENT
STOCKHOLDER AGREEMENT dated as of February 15, 2006 between New
Boise, Inc., a Delaware corporation ("New BlackRock") and Xxxxxxx Xxxxx &
Co., Inc., a Delaware corporation ("Xxxxxxx Xxxxx").
WHEREAS, New BlackRock, BlackRock, Inc., a Delaware corporation, and
Xxxxxxx Xxxxx are parties to a Transaction Agreement, dated as of
February_____, 2006 (the "Transaction Agreement"), pursuant to and subject to
the terms and conditions of which, among other things, Xxxxxxx Xxxxx 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, upon the closing under the Transaction Agreement (the
"Closing"), Xxxxxxx Xxxxx will Beneficially Own (as defined herein), directly
and/or through its Subsidiaries (as defined herein), up to 45% of the issued
and outstanding New BlackRock Class A Common Stock (as defined herein) and
additional non-voting shares of New BlackRock Capital Stock (as defined
herein);
WHEREAS, it is a condition to the obligations of each of New
BlackRock and Xxxxxxx Xxxxx to consummate the transactions contemplated by the
Transaction Agreement that this Agreement shall have been duly executed and
delivered by New BlackRock and Xxxxxxx Xxxxx; and
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 Xxxxxxx Xxxxx following the Closing,
as well as restrictions on certain activities in respect of New 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 New BlackRock nor any of its
Controlled Affiliates shall be deemed to be a Subsidiary or Affiliate of
Xxxxxxx Xxxxx solely by virtue of the Beneficial Ownership by Xxxxxxx Xxxxx of
New BlackRock Capital Stock, the election of Directors nominated by Xxxxxxx
Xxxxx to the Board, the election of any other Directors nominated by the Board
or any other action taken by Xxxxxxx Xxxxx in accordance with the terms and
conditions of, and subject to the limitations and restrictions set forth on
such Person in, this Agreement (and irrespective of the characteristics of the
aforesaid relationships and actions under applicable law or accounting
principles).
"Agreement" means this Stockholder Agreement as it may be amended,
supplemented, restated or modified from time to time.
"Beneficial Ownership" by a Person of any securities includes
ownership by any Person who, directly or indirectly, through any contract,
arrangement, understanding, relationship or otherwise, has or shares (i) voting
power which includes the power to vote, or to direct the voting of, such
security; and/or (ii) investment power which includes the power to dispose, or
to direct the disposition, of such security; and shall otherwise be interpreted
in accordance with the term "beneficial ownership" as defined in Rule 13d-3
adopted by the Commission under the Exchange Act; provided that for purposes of
determining Beneficial Ownership, a Person shall be deemed to be the Beneficial
Owner of any securities which may be acquired by such Person pursuant to any
agreement, arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise (irrespective of
whether the right to acquire such securities is exercisable immediately or only
after the passage of time, including the passage of time in excess of 60 days,
the satisfaction of any conditions, the occurrence of any event or any
combination of the foregoing), except that in no event will Xxxxxxx Xxxxx 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 Xxxxxxx
Xxxxx 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 New 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.
A "Change of Control of Xxxxxxx Xxxxx" shall be deemed to occur when
the Board of Directors of Xxxxxxx Xxxxx determines that a Change in Control of
Xxxxxxx Xxxxx has occurred, as a Change in Control of Xxxxxxx Xxxxx may be
defined from time to time by the Board of Directors of Xxxxxxx Xxxxx; provided,
however, that at a minimum, a Change in Control of Xxxxxxx Xxxxx shall, without
any action by the Board of Directors of Xxxxxxx Xxxxx, be deemed to occur if:
(i) any Person, excluding employee benefit plans of Xxxxxxx Xxxxx, is
or becomes the Beneficial Owner, directly or indirectly, of securities of
Xxxxxxx Xxxxx representing a majority of the combined voting power of Xxxxxxx
Xxxxx'x then outstanding securities;
(ii) Xxxxxxx Xxxxx consummates a merger, consolidation, share
exchange, division or other reorganization or transaction of Xxxxxxx Xxxxx (a
"Fundamental Transaction") with any other corporation, other than a Fundamental
Transaction that results in the voting securities of Xxxxxxx Xxxxx 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 (A) Xxxxxxx Xxxxx'x outstanding securities, (B) the
surviving entity's outstanding securities, or (C) in the case of a division,
the outstanding securities of each entity resulting from the division;
(iii) the shareholders of Xxxxxxx Xxxxx approve a plan of complete
liquidation or winding-up of Xxxxxxx Xxxxx or an agreement for the sale or
disposition (in one transaction or a series of transactions) of all or
substantially all Xxxxxxx Xxxxx'x assets;
(iv) as a result of a proxy contest, individuals who prior to the
conclusion thereof constituted the Board of Directors of Xxxxxxx Xxxxx
(including for this purpose any new director whose election or nomination for
election by Xxxxxxx Xxxxx'x 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 Xxxxxxx Xxxxx (excluding any
Board seat that is vacant or otherwise unoccupied); or
(v) during any period of twenty-four (24) consecutive months,
individuals who at the beginning of such period constituted the Board of
Directors of Xxxxxxx Xxxxx (including for this purpose any new director whose
election or nomination for election by Xxxxxxx Xxxxx'x 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 Xxxxxxx Xxxxx
(excluding any Board seat that is vacant or otherwise unoccupied).
"Class A Common Stock" means the shares of Class A Common Stock, par
value $0.01 per share, of New BlackRock and any securities issued in respect
thereof, or in substitution therefor, in connection with any stock split,
dividend or combination, or any reclassification, recapitalization, merger,
consolidation, exchange or other similar reorganization.
"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. 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.
"Controlled Affiliate" of any Person means a Person that is directly
or indirectly controlled by such other Person.
"Director" means any member of the Board (other than any advisory,
honorary or other non-voting member of the Board).
"Equivalent Securities" means at any time shares of any class of
Capital Stock or other securities or interests of a Person which are
substantially equivalent to the Voting Securities of such Person other than by
reason of not having voting rights, including, for the avoidance of doubt, the
Series A Participating Preferred Stock.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the Commission from time to time
thereunder (or under any successor statute).
"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 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, Xxxxxxx Xxxxx, any Significant
Stockholder, or any Affiliates or Designated Directors of Xxxxxxx Xxxxx 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 Xxxxxxx Xxxxx, any Significant Stockholder or New BlackRock,
is independent of such Person or Persons.
"Ownership Cap" means, at any time of determination, with respect to
Xxxxxxx Xxxxx and its Affiliates, each of (i) 49.8 percent of the Total Voting
Power of the Voting Securities of New BlackRock issued and outstanding at such
time (the "Voting Ownership Cap") and (ii) 49.8 percent of the sum of the
Voting Securities and the Series A Participating Preferred Stock of New
BlackRock issued and outstanding at such time and issuable upon the exercise of
any options or other rights outstanding at that time which, if exercised, would
result in the issuance of additional Voting Securities or Series A
Participating Preferred Stock (the "Total Ownership Cap").
"Ownership Percentage" means, with respect to any Person, at any
time, the quotient, expressed as a percentage, of (i) with respect to the
Voting Ownership Cap (A) the Total Voting Power of all Voting Securities of
another Person Beneficially Owned by such Person and its Affiliates divided by
(B) the Total Voting Power of all Voting Securities of such other Person issued
and outstanding at that time and (ii) with respect to the Total Ownership Cap,
(A) the Total Voting Power of all Voting Securities and the total number of
Equivalent Securities of another Person Beneficially Owned by such Person and
its Affiliates divided by (B) the Total Voting Power of all Voting Securities
and the total number of Equivalent Securities of such other Person issued and
outstanding at that time and issuable upon the exercise of any options or other
rights outstanding at that time which, if exercised, would result in the
issuance of additional Voting Securities or Equivalent Securities.
"Ownership Threshold" means, at any time of determination, with
respect to Xxxxxxx Xxxxx 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.
"Restricted Person" means each of the entities (and their successors)
set forth in that certain letter to be delivered by Xxxxxxx Xxxxx prior to the
fifth anniversary of the Closing who Xxxxxxx Xxxxx considers to be the nine
organizations most competitive with its overall business; provided, that not
more than once in any 12 month period thereafter, Xxxxxxx Xxxxx may, with the
consent of a majority of the Independent Directors, which consent, subject to
applicable fiduciary duties, shall not be unreasonably withheld, amend such
letter; provided, further, that at no time may more than nine entities
(together with their Affiliates) be Restricted Persons.
"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 xxxx Xxxxxxx Xxxxx 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 such time.
"Subsidiary" means, with respect to any Person, any corporation or
other organization, whether incorporated or unincorporated, (i) of which such
Person or any other Subsidiary of such Person is a general partner (excluding
partnerships, the general partnership interests of which held by such Person or
any Subsidiary of such Person do not have a majority of the voting or similar
interests in such partnership), or (ii) at least a majority of the securities
or other interests of which having by their terms ordinary voting power to
elect a majority of the board of directors or others performing similar
functions with respect to such corporation or other organization is directly or
indirectly owned or controlled by such Person or by any one or more of its
Subsidiaries, or by such Person and one or more of its Subsidiaries.
"Total Voting Power" means the total number of votes entitled to be
cast by the holders of the outstanding Capital Stock and any other securities
entitled, in the ordinary course, to vote on matters put before the holders of
the Capital Stock generally.
"Transfer" means, directly or indirectly, to sell, transfer, assign,
pledge, encumber, hypothecate or similarly dispose of (by operation of law or
otherwise), either voluntarily or involuntarily, or to enter into any contract,
option or other arrangement or understanding with respect to the sale,
transfer, assignment, pledge, encumbrance, hypothecation or similar disposition
of (by operation of law or otherwise), any Capital Stock or any interest in any
Capital Stock; provided, however, that a merger, amalgamation, plan of
arrangement or consolidation or similar business combination transaction in
which Xxxxxxx Xxxxx 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 Xxxxxxx Xxxxx'x outstanding Capital Stock, whether
by tender or exchange offer, by share exchange, or otherwise) shall not be
deemed to be the Transfer of any New BlackRock Capital Stock Beneficially Owned
by Xxxxxxx Xxxxx, 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 Xxxxxxx
Xxxxx, expressly assumes all obligations of Xxxxxxx Xxxxx under this Agreement.
For purposes of this Agreement, the term Transfer shall include the sale of an
Affiliate of Xxxxxxx Xxxxx or Xxxxxxx Xxxxx'x interest in an Affiliate which
Beneficially Owns New 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
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Additional New BlackRock Stock Purchase Section 2.3
Closing Preamble
DGCL Section 1.4
Final Transfer Notice Section 3.2
Initial Transfer Notice Section 3.2(b)
Last Look Price Section 3.2(b)
Litigation Section 6.11(a)
Management Designee Section 4.1(a)
Xxxxxxx Xxxxx Preamble
Xxxxxxx Xxxxx Designee Section 4.1(a)
Xxxxxxx Xxxxx Restricted Activities Section 5.1(a)
New BlackRock Preamble
New BlackRock Party Section 3.3(a)
New BlackRock Restricted Activities Section 5.1(a)
Prohibited Actions Section 2.2(h)
Related Person Section 4.7
Significant Stockholder Designee Section 4.1(a)
Stock Issuance Section 2.3
Transaction Agreement Preamble
Transferring Party Section 3.2(b)
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 New BlackRock Capital Stock or Voting
Securities and the number of shares of New BlackRock Capital Stock or Voting
Securities Beneficially Owned by any Person as of any date, any shares of New
BlackRock Capital Stock or Voting Securities held in New BlackRock's treasury
or belonging to any Subsidiaries of New BlackRock which are not entitled to be
voted or counted for purposes of determining the presence of a quorum pursuant
to Section 160(c) of the Delaware General Corporation Law (or any successor
statute (the "DGCL")) shall be disregarded.
ARTICLE II
SHARE OWNERSHIP
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Section 2.1 Acquisition of Additional New BlackRock Capital Stock.
(a) Except as provided in paragraph (b) below Xxxxxxx Xxxxx 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, it would
Beneficially Own New BlackRock Capital Stock representing more than its Voting
Ownership Cap or Total 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 Xxxxxxx Xxxxx or an Affiliate
thereof of any Person that Beneficially Owns New BlackRock Capital Stock, or
the acquisition of New BlackRock Capital Stock in connection with securing or
collecting a debt previously contracted in good faith in the ordinary course of
Xxxxxxx Xxxxx'x 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, and (ii) in the case of an acquisition
of another Person, it uses reasonable best efforts to negotiate terms in
connection with the relevant acquisition agreement requiring such other Person
to divest itself of sufficient New BlackRock Capital Stock it Beneficially Owns
so that its Voting Ownership Cap and its Total Ownership Cap would not be
exceeded pro forma for the acquisition, with such divestiture to be effected
concurrently with, or as promptly as practicable following, the consummation of
such acquisition (but in no event more than 120 days following such
consummation, or such longer period not in excess of 243 days following such
consummation as may be necessary due to the possession of material non-public
information or so that neither it nor any of its Affiliates incurs any
liability under Section 16(b) of the Exchange Act if, for purposes of Section
16(b), they have not acquired Beneficial Ownership of any other shares of New
BlackRock Capital Stock or derivatives thereof after the date of the
transaction that resulted in Xxxxxxx Xxxxx exceeding its Ownership Cap) and the
successor or surviving Person to such transaction, if not Xxxxxxx Xxxxx or such
Affiliate, expressly assumes all obligations of Xxxxxxx Xxxxx 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 Xxxxxxx Xxxxx and any of its Affiliates
Beneficially Own in the aggregate New BlackRock Capital Stock representing more
than its Voting Ownership Cap or Total Ownership Cap, then Xxxxxxx Xxxxx shall,
as soon as is reasonably practicable (but in no event longer than 120 days
after its Ownership Percentage first exceeds its Voting Ownership Cap or Total
Ownership Cap or such longer period not in excess of 243 days following such
consummation as may be necessary due to the possession of material non-public
information or so that neither 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 Xxxxxxx Xxxxx exceeding its Ownership Cap)
Transfer (in any manner that would be permitted by Section 3.2(b) after the
lapse of any minimum holding period) a number of shares of 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.
(ii) Notwithstanding any other provision of this Agreement, in
no event may Xxxxxxx Xxxxx 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
Voting Ownership Cap.
(d) Any additional New BlackRock Capital Stock acquired and
Beneficially Owned by Xxxxxxx Xxxxx or any of its Affiliates following the
Closing shall be subject to the restrictions contained in this Agreement as
fully as if such shares of New BlackRock Capital Stock were acquired by it at
or prior to the Closing.
(e) Notwithstanding Section 2.1(a), Xxxxxxx Xxxxx 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 Xxxxxxx Xxxxx, together with its Affiliates, would Beneficially Own
New BlackRock Capital Stock representing more than 90 percent of its Voting
Ownership Cap.
Section 2.2 Prohibition of Certain Communications and Actions. From
and after the Closing, Xxxxxxx Xxxxx 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 Voting
Stock 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 Xxxxxxx Xxxxx and any of its Affiliates would cause the total amount
of New BlackRock Voting Securities Beneficially Owned by Xxxxxxx Xxxxx to
exceed its Voting Ownership Cap or Total Ownership Cap, (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
thereof, 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 New 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, the
proviso to Section 4.6(a),
(e) being a member of a Group for the purpose of acquiring, holding
or disposing of any shares of New BlackRock Capital Stock or any Controlled
Affiliate of New BlackRock,
(f) selling any share of New BlackRock Capital Stock in an
unsolicited tender offer that is not opposed by the Board,
(g) any proposal to seek representation on the Board except as
contemplated by this Agreement or, other than as permitted by the proviso to
Section 4.6(a) of this Agreement, any proposal to seek to control or influence
the management, Board or policies of New BlackRock or any Controlled Affiliate
of New 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 Xxxxxxx Xxxxx or any
Affiliate thereof is approached by any Person requesting Xxxxxxx Xxxxx or any
Affiliate to instigate, 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, Xxxxxxx Xxxxx 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 Xxxxxxx Xxxxx Designee, to vote in his or her capacity as a
Director in such manner as he or she sees fit.
Section 2.3 Purchases of Additional Securities. From and after the
Closing, at any time that New BlackRock effects an issuance (a "Stock
Issuance") of additional Voting Securities or Equivalent Securities other than
in connection with any employee restricted stock, stock option, incentive or
other benefit plan to any Person or Persons other xxxx Xxxxxxx Xxxxx or any
Affiliate thereof, Xxxxxxx Xxxxx shall, subject to Section 2.1, have the right
to purchase from New BlackRock (in each instance, an "Additional New BlackRock
Stock Purchase") (i) additional shares of Series A Participating Preferred
Stock such that following such Stock Issuance and such purchase Xxxxxxx Xxxxx
and its Affiliates will Beneficially Own shares and/or other securities
representing the lesser of (A) the lesser of Xxxxxxx Xxxxx'x Voting Ownership
Cap and its Total Ownership Cap and (B) the same Ownership Percentage of
Xxxxxxx Xxxxx'x Voting Ownership Cap and Total Ownership Cap as they
Beneficially Owned immediately prior to such Stock Issuance and (ii) if the
total of all Stock Issuances including the Stock Issuance in question since the
Closing has the effect, after taking into account any repurchases of New
BlackRock Capital Stock by New BlackRock since the Closing and any Transfers of
New Boise Capital Stock by Xxxxxxx Xxxxx and its Affiliates in accordance with
Section 3.2(b)(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 Miami and its Affiliates to 90% or less of
Xxxxxxx Xxxxx'x Voting Ownership Cap, additional Voting Securities of the same
class or series issued in the Stock Issuance such that following such Stock
Issuance and such purchase Xxxxxxx Xxxxx and its Affiliates will Beneficially
Own shares and/or other securities representing the lesser of (x) Xxxxxxx
Xxxxx'x Voting Ownership Cap and (y) the same Ownership Percentage of Xxxxxxx
Xxxxx'x Voting Ownership Cap as Xxxxxxx Xxxxx'x and its Affiliates Beneficially
Owned immediately prior to such Stock Issuance. If Xxxxxxx Xxxxx 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, Xxxxxxx Xxxxx 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
Xxxxxxx Xxxxx 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 Xxxxxxx Xxxxx written notice of any Stock Issuance as far
in advance as practicable and on the date of completion;
Section 2.4 New BlackRock Share Repurchases. If New BlackRock engages
in any share repurchase program or self-tender that has the effect of causing
Xxxxxxx Xxxxx'x Beneficial Ownership of New BlackRock Capital Stock to exceed
its Voting Ownership Cap or Total Ownership Cap, subject to any restrictions in
the Exchange Act, Xxxxxxx Xxxxx shall, at the request of New BlackRock,
promptly sell such number of shares of New BlackRock Capital Stock to New
BlackRock as shall cause its Beneficial Ownership of New BlackRock Capital
Stock not to exceed its Voting Ownership Cap or Total Ownership Cap.
ARTICLE III
TRANSFER RESTRICTIONS
---------------------
Section 3.1 General Transfer Restrictions. The right of Xxxxxxx Xxxxx
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 Xxxxxxx Xxxxx 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) Without the prior written consent of New BlackRock (acting
through a majority of the Independent Directors), during an initial period of
three years following the Closing, Xxxxxxx Xxxxx shall not, and shall not
permit its Affiliates to, Transfer any New BlackRock Capital Stock or agree to
Transfer, directly or indirectly, any New BlackRock Capital Stock; provided
that the foregoing restriction shall not prohibit Xxxxxxx Xxxxx or any of its
Affiliates from Transferring any New BlackRock Capital Stock (i) to New
BlackRock pursuant to Section 2.4 or (ii) to an Affiliate of Xxxxxxx Xxxxx that
agrees in writing with New BlackRock to be bound by this Agreement as fully as
if it were an initial signatory hereto.
(b) Following the third anniversary of the Closing, Xxxxxxx Xxxxx
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 Xxxxxxx Xxxxx which agrees in writing
with New BlackRock to be bound by this Agreement as fully as if it were an
initial signatory hereto;
(ii) pursuant to the restrictions of Rule 144 under the
Securities Act applicable to sales of securities by Affiliates of an issuer
(regardless of whether Xxxxxxx Xxxxx is deemed at such time to be an Affiliate
of New BlackRock) to any Person who after giving effect to such Transfer would
not Beneficially Own New BlackRock Capital Stock representing in the aggregate
more than 5% of the Total Voting Power of New BlackRock Capital Stock issued
and outstanding;
(iii) pursuant to privately negotiated transactions, in each
calendar quarter in an amount not in excess (together with Transfers pursuant
to Section 3.2(b)(ii) and (iv) during such calendar quarter) of 4.5% of the
Total Voting Power of New BlackRock Capital Stock issued and outstanding to any
Person who after giving effect to such Transfer would not Beneficially Own New
BlackRock Capital Stock representing in the aggregate more than 5% of the Total
Voting Power of New BlackRock Capital Stock issued and outstanding; provided,
that Xxxxxxx Xxxxx or the Affiliate proposing to Transfer pursuant to this
Section 3.2(b)(iii) (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
Xxxxxxx Xxxxx 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"));
(iv) in each calendar quarter, in an amount not in excess
(together with Transfers pursuant to Section 3.2(b)(ii) and (iii)) of 4.5% of
the Total Voting Power of New BlackRock Capital Stock issued and outstanding,
pursuant to a distribution to the public, registered under the Securities Act,
in which Xxxxxxx Xxxxx 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 sell New BlackRock Capital Stock to any
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
(v) with the prior written consent of a majority of the
Independent Directors.
(c) If Xxxxxxx Xxxxx 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, Xxxxxxx Xxxxx shall coordinate with New
BlackRock regarding optimizing the manner of distribution and sale of such
shares, including whether such sale should occur through an underwritten
offering and shall cooperate in the marketing of any such offering.
(d) Xxxxxxx Xxxxx shall reimburse New BlackRock for any fees and
expenses incurred in connection with any Transfer by Xxxxxxx Xxxxx 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 Transfer to a charitable
organization or foundation, New 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 "New 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 New 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 New BlackRock Party elects to purchase all of such New
BlackRock Capital Stock, the New 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 New 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 New BlackRock Party to enter into definitive agreements to
Transfer such New BlackRock Capital Stock in accordance with Section 3.2(b)(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 New 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 Xxxxxxx Xxxxx 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 New BlackRock Capital
Stock Beneficially Owned by Xxxxxxx Xxxxx 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 STOCKHOLDER AGREEMENT DATED AS OF___, 2006, AMONG NEW BOISE,
INC. (THE "COMPANY") AND XXXXXXX XXXXX & CO, 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 Xxxxxxx Xxxxx or any of its Affiliates of
additional shares of New BlackRock Capital Stock, Xxxxxxx Xxxxx shall, or shall
cause such Affiliate to, submit the certificates representing such shares of
New BlackRock Capital Stock to New 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(b)(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 Xxxxxxx
Xxxxx, within the first five years after the Closing, Xxxxxxx Xxxxx (or any
successor Person) shall, (a) within 30 days of such Change of Control, initiate
and thereafter as promptly as practicable (consistent with applicable legal
requirements) 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) such number of Voting
Securities of New BlackRock as shall be necessary to reduce to 24.9 percent the
Total Voting Power of New BlackRock Capital Stock Beneficially Owned by Xxxxxxx
Xxxxx and its Affiliates immediately after giving effect to such Change of
Control or, at the election of Xxxxxxx Xxxxx, (b) Xxxxxxx Xxxxx shall exchange
all of its shares of Class A Common Stock for shares of Series A Participating
Preferred Stock on the basis of one share of Series A Participating Preferred
Stock for each share of Class A Common Stock so exchanged and shall agree to
elect cash dividends on all such shares, and New BlackRock shall effect such
exchange. 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) Following the Closing, New BlackRock and Xxxxxxx Xxxxx shall each
use its best efforts to cause the election at 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 (including at
least one who also is a former senior executive of Miami) who are members of
New BlackRock management (each a "Management Designee"); there are two
Directors, each in a different class, who are individuals designated in writing
to New BlackRock by Xxxxxxx Xxxxx (each, a "Xxxxxxx Xxxxx Designee"); 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 Stockholders and has
held such status since prior to the date of the Transaction Agreement (each, a
"Significant Stockholder Designee"); and the remaining Directors are
Independent Directors.
(b) Following the Closing, upon the resignation, retirement or other
removal from office of any Management Designee or Xxxxxxx Xxxxx Designee (i)
New BlackRock or Xxxxxxx Xxxxx, as the case may be, shall be entitled promptly
to designate a replacement Management Designee or Xxxxxxx Xxxxx 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 Xxxxxxx Xxxxx 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 the 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 transaction, 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 transaction:
(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
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 New 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;
(vii) any matter requiring stockholder approval pursuant to the
New York Stock Exchange listed company manual;
(viii) any amendment, modification or waiver (as distinct from a
consent or approval provided therein) of any restriction or prohibition on
Xxxxxxx Xxxxx or its Affiliates provided for herein 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 stockholders agreement between New BlackRock and
such Significant Stockholder;
provided, however, that if a Change of Control of Xxxxxxx Xxxxx occurs prior to
the fifth anniversary of the Closing, the provisions of this Section 4.2(b)
shall immediately cease.
(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 Xxxxxxx
Xxxxx:
(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 Persons holding a majority of the Total
Voting Power of the 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) after the fifth anniversary of the Closing, 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 would be Beneficially Owned by a Restricted Person or any sale of all or
substantially all of the assets of New BlackRock to any Restricted Person;
(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 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 acquisition, whether by merger, consolidation, exchange
of equity interests, purchase of equity interests or assets or similar
transaction of any Person or business which would be reasonably likely in the
opinion of counsel to Xxxxxxx Xxxxx require Xxxxxxx Xxxxx to register with the
Board of Governors of the Federal Reserve System as a bank holding company or
become subject to regulation, supervision or restrictions under the Bank
Holding Company Act of 1956, the Change of Bank Control Act or Section 10 of
the Homeowners Loan Act;
(v) 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 Xxxxxxx Xxxxx or more favorable to the rights of a Significant
Stockholder than to the rights of Xxxxxxx Xxxxx;
(vi) any settlement or consent in a regulatory enforcement
matter that would be reasonably likely, in the opinion of counsel to Xxxxxxx
Xxxxx, to cause Xxxxxxx Xxxxx 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));
(vii) any amendment, modification or waiver (as distinct from a
consent or approval provided for therein) of any provision of a stockholders
agreement between New BlackRock and a Significant Stockholder that would be
viewed by a reasonable Person as being adverse to Xxxxxxx Xxxxx or materially
more favorable to the rights of such Significant Stockholder thereunder than to
the rights of Xxxxxxx Xxxxx hereunder; or
(viii) any voluntary bankruptcy or similar filing or declaration
by New BlackRock.
provided, however, that if a Change of Control of Xxxxxxx Xxxxx occurs prior to
the fifth anniversary of the Closing, the provisions of Section 4.2(c)(i), (ii)
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 except as otherwise
determined by the Board (in accordance with Section 4.2) each committee of the
Board shall consist of a majority of Independent Directors, the Audit
Committee, the Compensation Committee and, to the extent required by applicable
laws, rules and regulations and self-regulatory organization requirements, the
Nominating Committee shall consist entirely of Independent Directors and the
Executive Committee shall consist of not less than five members of which one
shall be a Xxxxxxx Xxxxx 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 Xxxxxxx Xxxxx 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 Xxxxxxx Xxxxx hereunder.
Neither New BlackRock nor Xxxxxxx Xxxxx 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 Xxxxxxx Xxxxx
hereunder.
Section 4.5 Information Rights.
(a) New BlackRock acknowledges that the investments of Xxxxxxx Xxxxx
in New BlackRock are material and strategic to it. Accordingly, New BlackRock
shall provide to Xxxxxxx Xxxxx, 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
Xxxxxxx Xxxxx 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 Xxxxxxx Xxxxx), New BlackRock agrees
that:
(i) New BlackRock shall provide Xxxxxxx Xxxxx with (A)
consolidated financial results for the latest available period of the New
BlackRock consolidated group (the "New BlackRock Group") in order to allow
Xxxxxxx Xxxxx to prepare its US regulatory filings under the Securities
Exchange Act of 1934 ("Xxxxxxx Xxxxx Public Filings"), including Xxxxxxx
Xxxxx'x 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 Xxxxxxx Xxxxx may reasonably request;
and
(ii) New BlackRock shall cooperate, and use its reasonable best
efforts to cause New BlackRock's independent certified public accounts ("New
BlackRock's Auditors") to cooperate, with Xxxxxxx Xxxxx to the extent
reasonably requested by Xxxxxxx Xxxxx in the preparation of Xxxxxxx Xxxxx'x
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 Xxxxxxx Xxxxx with
the Commission, or any other Governmental Authority or otherwise made publicly
available (collectively, the "Xxxxxxx Xxxxx Public Filings"). New BlackRock
agrees to provide to Xxxxxxx Xxxxx all information that Xxxxxxx Xxxxx
reasonably requests in connection with any Xxxxxxx Xxxxx Public Filings or
that, in the reasonable judgment of Xxxxxxx Xxxxx 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 Xxxxxxx
Xxxxx to prepare, print and release all Xxxxxxx Xxxxx Public Filings on a
timely basis. New BlackRock shall use its reasonable best efforts to cause New
BlackRock's Auditors to consent to any reference to them as experts in any
Xxxxxxx Xxxxx Public Filings required under applicable law.
(c) New BlackRock will negotiate in good faith with Xxxxxxx Xxxxx to
develop appropriate protocols for each to share with the other aggregate
security position information for use in their respective compliance programs.
For so long as New BlackRock shall be deemed a subsidiary of Xxxxxxx Xxxxx for
purposes of the Home Owners Loan Act or Change in Bank Control Act, Xxxxxxx
Xxxxx shall have appropriate coordination rights with respect to holdings of
voting shares of savings and loan holdings companies, savings associations,
banks and bank holding companies.
(d) With respect to any information provided by New BlackRock:
(i) Subject to the requirements of law, Xxxxxxx Xxxxx 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 (w) is or becomes publicly available other than as a result of a
breach of this Section 4.5(d) by it or its representatives; (x) 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; (y) 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 (z) is
independently developed by or on its behalf without violating any of its
obligations under this Section 4.5(d).
(ii) In the event Xxxxxxx Xxxxx 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, Xxxxxxx Xxxxx 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 Xxxxxxx Xxxxx 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) Xxxxxxx Xxxxx 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 recommendation of the
Board on all matters approved by the Board in accordance with the provisions of
Article IV, including elections of Directors; provided, however, that if the
Board shall either fail to nominate for election as a Director either or both
of two individuals designated by Xxxxxxx Xxxxx who are reasonably acceptable to
the Board, or shall unreasonably reject one or more Xxxxxxx Xxxxx 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, Xxxxxxx Xxxxx
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) Xxxxxxx Xxxxx 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 Xxxxxxx Xxxxx 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 Xxxxxxx Xxxxx or any Affiliate of Xxxxxxx Xxxxx or any director,
officer or employee of Xxxxxxx Xxxxx 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 Xxxxxxx Xxxxx
Designees, present at a meeting at which a quorum is present.
ARTICLE V
NON-COMPETITION
---------------
Section 5.1 Non-Competition.
(a) Subject to subsection (b) of this Section 5.1, from and after the
Closing, Xxxxxxx Xxxxx agrees that it shall not, and that it shall cause its
Controlled Affiliates (other than New BlackRock and New BlackRock's Controlled
Affiliates should they at any time be Controlled Affiliates of Xxxxxxx Xxxxx)
not to engage in Xxxxxxx Xxxxx Restricted Activities anywhere in the World
(other than India to the extent required by the asset management joint venture
to which Xxxxxxx Xxxxx and its Affiliates are party in that country) except on
the terms and conditions set forth herein, and New BlackRock agrees that it
shall not, and that it shall cause its Controlled Affiliates not to engage in
New BlackRock Restricted Activities anywhere in the World except on the terms
and conditions set forth herein.
(i) As used in this Section 5.1, the term "Xxxxxxx Xxxxx
Restricted Activities" means (i) acting as an Asset Manager (as defined below)
to a Fund (as defined below), or (ii) acting as an Asset Manager to a
Separately Managed Account (as defined below). Notwithstanding the previous
sentence, the parties agree to establish a committee composed of two New
BlackRock managers and one Xxxxxxx Xxxxx manager to consider cases in which it
would be acceptable and appropriate to allow Xxxxxxx Xxxxx and its Affiliates
to engage on a limited, case-by-case basis, in Xxxxxxx Xxxxx Restricted
Activities. In particular, if Xxxxxxx Xxxxx or its Affiliates determine that
(1) there is customer demand for a product that New BlackRock does not provide,
or desire to provide on commercially reasonable terms, and (2) Xxxxxxx Xxxxx
and/or its Affiliates has made a reasonable exploration for alternative
providers, then the committee will consider and decide in good faith, in the
discretion of a majority of the committee members, whether to permit Xxxxxxx
Xxxxx or an Affiliate to provide such product notwithstanding that to do so
Xxxxxxx Xxxxx or such Affiliate would be engaged in Xxxxxxx Xxxxx Restricted
Activities.
Furthermore, Xxxxxxx Xxxxx hereby agrees, notwithstanding
anything herein to the contrary, that neither IQ Investment Advisors nor any
other investment advisor controlled by Xxxxxxx Xxxxx during the term of this
Agreement will (i) directly or through one or more sub-advisers create a family
of open-end funds for the purpose of replicating the business of Xxxxxxx Xxxxx
Investment Management ("MLIM") or establishing a direct competitive threat to
MLIM, or (ii) create an open-end fund or family of open-end funds for the
purpose of replicating the MLIM FDP platform or establishing a direct
competitive threat to MLIM FDP.
For purposes of this provision, "acting as an Asset Manager" means
acting as a discretionary investment adviser or sub-adviser primarily
responsible for making the day-to-day investment decisions with respect to
which underlying securities or other assets will be purchased and sold by a
Fund or a Separately Managed Account; provided, however, that neither Xxxxxxx
Xxxxx nor any Affiliate will be deemed to be acting as an Asset Manager in
instances where it serves as an investment adviser with responsibilities for
manager selection and asset allocation (or other overlay functions) that
delegates primary day-to-day selection of underlying securities or other assets
to a sub-adviser that is not under the control of Xxxxxxx Xxxxx (it being
agreed that New BlackRock is not under the control of Xxxxxxx Xxxxx for this
purpose) and provided further, that Xxxxxxx Xxxxx will not be deemed to be
acting as an Asset Manager to new financial technology, the primary purpose of
which is not to provide active asset management services to third party
investors.
For purposes of this section, "Fund" shall mean any collective
investment fund, wherever domiciled.
For purposes of this provision, "Separately Managed Account" shall
mean an account established in the name of and for the exclusive benefit of any
person that is not a Fund pursuant to which such person receives investment
advisory services; provided, however, Separately Managed Account shall not
include an account of a customer or client of a retail broker, retail financial
advisor, private wealth advisor or other retail sales person ("Retail Sales
Person") for which (1) a Retail Salesperson acts as portfolio manager, or
(2) a Xxxxxxx Xxxxx affiliated bank or trust company acts as trustee or
investment advisor but qualifies for exclusion from acting as an Asset Manager
pursuant to the first proviso to the definition thereof or supervises asset
management services by the Retail Sales Person or an unaffiliated third party
manager.
The term "Fund" shall not include any collective investment vehicle
that, and the term "Separately Managed Account" shall not include any account
that is not a Fund that:
(1) invests primarily in collective investment vehicles such as hedge funds,
private equity funds, ETFs, and/or mutual funds,
(2) invests substantially all of its assets in Real Estate,
For purposes of this Section 5.1, "Real Estate" shall include, but not
be limited to, any direct or indirect, public or private, wholly-owned,
joint venture, TIC interest, partnership, total return swap, and/or
participation or other interests (including, without limitation, debt,
equity, hybrid security interests (e.g. preferred equity and convertible
securities), and options) in and acquisitions, sales, and direct and
indirect syndications of:
(i) real estate properties, including licenses, space and ground
leases, and sub-leases for such properties and any interests
therein and all rights and interests appurtenant thereto (e.g.,
air rights, riparian rights, etc.),
(ii) real estate operating, asset management, property management,
loan servicing and special servicing, Section 1031 vehicle and/or
holding companies,
(iii) any entity or structure primarily representing interests in, or
backed by, real estate-related credit instruments, real estate
equity interests, real estate derivatives, CDO instruments or
real estate properties,
(iv) instruments, assets, or operating enterprises whose values are
primarily driven or supported by real property or tangible assets
attached to real property including, but not limited to, hotels,
homebuilding, commercial and residential real estate, land
development, cell towers, real estate credit instruments, lease
claims, lien (including tax lien) claims, timber, timeshare
units, and fractional interests,
(v) investment vehicles whose target investments include primarily
Real Estate (e.g., partnerships, limited liability companies,
hedge funds, private equity funds and REITs and their foreign
counterparts),
(vi) secured and unsecured performing and non-performing loans and
obligations backed primarily by Real Estate (including Commercial
Mortgage Backed Securities), or pools of such loans and
obligations, and
(vii) non-investment grade or high yield loans, bonds, mezzanine loans,
B-notes, and preferred equity secured or backed primarily by Real
Estate.
(3) invests primarily in commodities, collateralized debt obligations
(broadly defined), collateralized loan obligations (broadly defined),
any types of residual equity interests of structured assets or
infrastructure products,
(4) is a "Structured Fund" or an "Enhanced Index Fund,"
(i) For purposes of this section, a "Structured Fund" is defined to
mean any collective investment vehicle or other account that
reshapes, repackages, and/or reproduces traditional cash flows or
risk-return profiles through derivatives or other financial
instruments and is operated in a passive and mechanistic manner
in accordance with a predetermined set of trading and investment
rules, and
(ii) For purposes of this section, an "Enhanced Index Fund" is defined
to mean any collective investment vehicle or account that (1)
seeks to replicate the performance of an index that is
constructed in a customized manner to provide greater returns
than those provided by traditional indexes, or replicate the
performance of a proprietary index that is developed,
co-developed, or exclusively licensed by Xxxxxxx Xxxxx or any
of its Affiliates and (2) is operated in a passive and mechanistic
manner in accordance with a predetermined set of trading and
investment rules,
(5) is a "Structured Finance Vehicle,"
For purposes of this section, a "Structured Finance Vehicle" is any
collective investment vehicle that relies on a trust, commodity pool,
depositary facility or other collective investment entity that has the
primary purpose of aggregating securities, commodities or other
financial instruments for the purpose of (i) repackaging illiquid
instruments or derivatives, or (ii) tranching or aggregating financial
instruments to change their tax, cost, accounting, yield, credit,
leverage, ERISA or risk characteristics,
(6) is otherwise ancillary or incidental to any non-Fund or non-Separately
Managed Account business of Xxxxxxx Xxxxx or its Affiliates, or
(7) has the primary purpose of seeding funds and/or raising additional
third-party capital to facilitate, support or assist in capitalizing
current or future Xxxxxxx Xxxxx'x proprietary trading and investing
activities, including, but not limited to, equity and equity-linked
products, fixed income and fixed income-linked products, loans, and
distressed credit, Real Estate, private equity, venture capital,
infrastructure, timber, foreign exchange and commodities products.
Nothing herein shall prohibit Xxxxxxx Xxxxx or any of its Affiliates
from engaging in any business activities of any kind or nature currently
engaged in by Xxxxxxx Xxxxx or any of its Affiliates as of the date of
this Agreement.
(ii) As used in this Section 5.1, the term "New BlackRock
Restricted Activities" means engaging, whether directly or indirectly through
ownership of any interest in or consensual arrangements relating to another
Person that is directly or indirectly engaged, in the retail securities
brokerage business; provided, however, that the term "New BlackRock Restricted
Activities" shall in no event include acting as the distributor of publicly
offered Funds primarily through third party sales forces or acting as a
placement agent for privately offered Funds.
(b) Notwithstanding Section 5.1 above, Xxxxxxx Xxxxx and any
Controlled Affiliate restricted thereby may, with respect to Xxxxxxx Xxxxx
Restricted Activities, and New BlackRock and any Controlled Affiliate
restricted thereby may, with respect to New BlackRock Restricted Activities:
(i) acquire or hold any interest (whether by way of a purchase,
merger, consolidation or other transaction) in any Person engaged directly or
indirectly in any Xxxxxxx Xxxxx Restricted Activities or New BlackRock
Restricted Activities, as applicable; if (and only if) (A) the direct and
indirect interest Beneficially Owned by Xxxxxxx Xxxxx and its Controlled
Affiliates (other than New BlackRock and its Controlled Affiliates should they
at any time be Controlled Affiliates of Xxxxxxx Xxxxx), in the case of Xxxxxxx
Xxxxx Restricted Activities, or by New BlackRock and its Controlled Affiliates,
in the case of New BlackRock Restricted Activities, represents less than 10
percent of the voting interests and less than 10 percent of the ownership,
revenue and profits interests in such Person, assuming the exercise of all
rights of Xxxxxxx Xxxxx and its Controlled Affiliates ((other than New
BlackRock and its Controlled Affiliates should they at any time be Controlled
Affiliates of Xxxxxxx Xxxxx), or New BlackRock and its Controlled Affiliates,
as applicable, to acquire any such interests or (B) in connection with the bona
fide third party venture capital or merchant banking line of business of
Xxxxxxx Xxxxx or its Affiliates; or
(ii) acquire or hold any interest in any Person in excess of the
amount set forth in clause (i) above if (and only if) either (A) both (x) the
consolidated revenues of such Person from Xxxxxxx Xxxxx Restricted Activities
or New BlackRock Restricted Activities, as applicable, in the previous four
fiscal quarters are less than 33.3% of such Person's consolidated revenues
during such period and (y) the sum of the aggregate consolidated revenues of
such Person and its Subsidiaries in the preceding four fiscal quarters from
Xxxxxxx Xxxxx Restricted Activities or New BlackRock Restricted Activities, as
applicable, multiplied times the direct or indirect percentage economic
interest of Xxxxxxx Xxxxx and its restricted Controlled Affiliates or New
BlackRock and its restricted Controlled Affiliates, as applicable, in such
Person is, in the case of Xxxxxxx Xxxxx Restricted Activities, less than 10% of
the consolidated revenues of New BlackRock for such period and, in the case of
New BlackRock Restricted Activities, less than 10% of the consolidated revenues
of Xxxxxxx Xxxxx derived from New BlackRock Restricted Activities, Xxxxxxx
Xxxxx or New BlackRock, as applicable, shall, or shall cause such Affiliate to,
take commercially reasonable actions necessary to cease and terminate such
Restricted Activities or to sell such Person or business to a third party that
is not an Affiliate, as soon as reasonably practicable, and New BlackRock or
Xxxxxxx Xxxxx, as applicable, shall have a right to participate as a bidder in
respect of any such sale transaction, or (B) if such acquisition or holding
satisfies Section 5.1(b)(ii)(A)(x) above but not Section 5.1(b)(ii)(A)(y)
above, then Xxxxxxx Xxxxx or New BlackRock may continue to own such Person and
operate its Xxxxxxx Xxxxx Restricted Activities or New BlackRock Restricted
Activities, as applicable (the "Continuing Business"); provided that, (1) for
so long as the restrictions of Section 5.1(a) continue to apply to Xxxxxxx
Xxxxx or BlackRock, as applicable, the Continuing Business shall not use the
"Xxxxxxx Xxxxx" name or the "BlackRock" name, or any derivation thereof, and
(2) for so long as the Distribution Agreement in the Transaction Agreement
remains in effect, Xxxxxxx Xxxxx and its Affiliates or BlackRock and its
Affiliates (in each case, other than the acquired Person and its Affiliates as
of the time of acquisition) shall not enter into any agreement similar to the
Distribution Agreement with the acquired Person and its Affiliates; or
(iii) in the case of Xxxxxxx Xxxxx, merge, consolidate or
otherwise engage in a business combination with, or sell all or substantially
all of its assets or businesses to, any Person that is not an Affiliate of
Xxxxxxx Xxxxx with an existing business engaged in Xxxxxxx Xxxxx Restricted
Activities and continue to operate such business; provided that members of the
Xxxxxxx Xxxxx board of directors do not constitute a majority of the board of
directors of the surviving corporation of such transaction (or of the board of
directors of its publicly traded parent company) and that the Xxxxxxx Xxxxx
shareholders immediately prior to consummation of such transaction do not
immediately after consummation of such transaction own 60% or more of the
outstanding capital stock or other equity interests of the surviving entity of
such transaction (or of its publicly traded parent company); the restrictions
of Section 5.1(a) shall not apply to the activities of such surviving entity
and its Affiliates (other xxxx Xxxxxxx Xxxxx (if it is not the surviving parent
entity) and its Subsidiaries as of the closing of the transaction)); or
(iv) engage in Xxxxxxx Xxxxx Restricted Activities or New
BlackRock Restricted Activities, as applicable, (including through an
acquisition or holding in excess of that permitted by Section 5.1(b)(i) or (ii)
above) if and to the extent that, prior to engaging therein,
Xxxxxxx Xxxxx discloses to the Board of Directors of New
BlackRock, or New BlackRock discloses to the Board of Directors of Xxxxxxx
Xxxxx, as applicable, in reasonable detail and with reasonable
particularity, including by responding to the inquiries and questions of
such Board of Directors, the nature, extent and duration of the proposed
Miami Restricted Activities or New BlackRock Restricted Activities; and
a majority of the Independent Directors on such Board of
Directors approves the proposed Miami Restricted Activities by Xxxxxxx
Xxxxx or such Controlled Affiliate or New BlackRock Restricted Activities
by New BlackRock or such Controlled Affiliate, as applicable.
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 fifth anniversary of the
Closing or, if later, the first date on which Xxxxxxx Xxxxx and its Affiliates
Beneficially Own New BlackRock Capital Stock representing less than its
Ownership Threshold; provided, however, that in the case of a termination
pursuant to this Section 6.2, the obligations of the parties pursuant to
Article III hereof shall not terminate until the first date on which Xxxxxxx
Xxxxx 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 New BlackRock with the Commission, unless New
BlackRock shall have updated such information by delivery of written notice to
Xxxxxxx Xxxxx.
(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,
Beneficial Ownership by Xxxxxxx Xxxxx 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 Xxxxxxx Xxxxx
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 and the Transaction Agreement, together with the several
agreements and other documents and instruments referred to herein or therein or
annexed hereto or thereto, embody 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 Xxxxxxx Xxxxx 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 Xxxxxxx Xxxxx 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; provided,
further, that New BlackRock may assign all or a portion of its rights under
Sections 3.3 and 5.1(b)(ii) in connection with any particular transaction
subject thereto so long as New BlackRock remains, obligated in respect of any
purchase obligations arising thereunder. Subject to the foregoing, this
Agreement shall bind and inure to the benefit of and be enforceable by the
parties hereto and their respective successors and permitted assigns.
Section 6.9 Counterparts. This Agreement may be executed in separate
counterparts each of which shall be an original and all of which taken together
shall constitute one and the same agreement.
Section 6.10 Remedies.
(a) Each party hereto acknowledges that monetary damages would not be
an adequate remedy in the event that each and every one of the covenants or
agreements in this Agreement are not performed in accordance with their terms,
and it is therefore agreed that, in addition to and without limiting any other
remedy or right it may have, the non-breaching party will have the right to an
injunction, temporary restraining order or other equitable relief in any court
of competent jurisdiction enjoining any such breach and enforcing specifically
each and every one of the terms and provisions hereof. Each party hereto agrees
not to oppose the granting of such relief in the event a court determines that
such a breach has occurred, and to waive any requirement for the securing or
posting of any bond in connection with such remedy.
(b) All rights, powers and remedies provided under this Agreement or
otherwise available in respect hereof at law or in equity shall be cumulative
and not alternative, and the exercise or beginning of the exercise of any
thereof by any party shall not preclude the simultaneous or later exercise of
any other such right, power or remedy by such party.
Section 6.11 Notices. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered personally,
telecopied (upon telephonic confirmation of receipt), on the first Business Day
following the date of dispatch if delivered by a recognized next day courier
service, or on the third Business Day following the date of mailing if
delivered by registered or certified mail, return receipt requested, postage
prepaid. All notices hereunder shall be delivered as set forth below, or
pursuant to such other instructions as may be designated in writing by the
party to receive such notice.
If to 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: 000-000-000
Attention: Xxxxxxxx X. Xxxxxx, Esq.
Xxxxxxx X. Xxxxx, Esq.
If to Xxxxxxx Xxxxx:
Xxxxxxx Xxxxx & Co., Inc.
Four World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: 212-670-
Attention: Xxxxxxx X. Xxxxx, Esq.
with a copy (which shall not constitute notice) to:
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 0000
Facsimile: 212-558-3588
Attention: Xxxxxxxx X. Xxxxx, 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 Xxxxxxx Xxxxx 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. 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 Stockholder
Agreement as of the date first written above.
NEW BOISE, INC.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
XXXXXXX XXXXX & CO., INC.
By: /s/ E. Xxxxxxx X'Xxxx
-------------------------------------
Name: E. Xxxxxxx 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.
