EXHIBIT 4.2
AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT
By and Among
BLACKROCK, INC.
PNC ASSET MANAGEMENT, INC.
and
CERTAIN EMPLOYEES OF BLACKROCK, INC.
AND ITS AFFILIATES
________ __, 1999
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
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This AMENDED AND RESTATED STOCKHOLDERS AGREEMENT (this "Agreement") is made
and entered into as of _______ __, 1999, by and among BLACKROCK, INC., a
Delaware corporation ("BlackRock"), PNC ASSET MANAGEMENT, INC., a Delaware
corporation ("XXX"), and the parties identified on the signature pages hereto as
Employee Stockholders (as defined herein) or their Permitted Transferees (as
defined herein).
BACKGROUND
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BlackRock Financial Management, Inc. ("BFM"), a predecessor in interest to
BlackRock, XXX, and certain Employee Stockholders (as defined below) were
parties to a Shareholders Agreement, dated January 31, 1998 ("BFM Stockholders
Agreement"), with respect to the shares of common stock of BFM (the "BFM Common
Stock") outstanding immediately prior to the date thereof.
In the Exchange Agreement, dated March 31, 1998 (the "Exchange Agreement"),
XXX and the Employee Stockholders exchanged their shares of BFM Common Stock for
shares of common stock, no par value, of BlackRock ("Old BlackRock Common
Stock") on a one share for one share basis.
The BFM Stockholders Agreement was terminated in its entirety with the
execution of a new stockholders agreement by and among BlackRock, XXX and
certain Employee Stockholders, dated as of April 30, 1998 ("1998 Stockholders
Agreement"). As of such date, BlackRock issued additional shares of Old
BlackRock Common Stock to certain Employee Stockholders, and the holders of such
additional Old BlackRock Common Stock as well as the other holders of Old
BlackRock Common Stock outstanding immediately prior to the date thereof became
subject to the terms and conditions of the 1998 Stockholders Agreement.
BlackRock intends to offer common stock for sale to the public in a
domestic offering and an international offering (together, the "Offerings").
Immediately prior to the completion of the Offerings, BlackRock will adopt an
Amended and Restated Certificate of Incorporation (the "Certificate of
Incorporation") which, among other things, will provide for the recapitalization
of BlackRock by creating two classes of common stock. In the recapitalization,
each outstanding share of Old BlackRock
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Common Stock will be changed and reclassified into 275 shares of Class B Common
Stock, par value $0.01 per share ("Class B Common Stock"). XXX and the Employee
Stockholders will be the sole holders of Class B Common Stock. A second class of
common stock, Class A Common Stock, par value $0.01 per share ("Class A Common
Stock" and, together with the Class B Common Stock, "Common Stock"), will be
sold to the public in the Offerings. The Class A Common Stock and the Class B
Common Stock will be identical in all respects, except that each share of Class
B Common Stock is entitled to five votes while each share of Class A Common
Stock will be entitled to one vote.
The parties to the 1998 Stockholders Agreement agree that certain changes
to the 1998 Stockholders Agreement will be necessary and desirable and in the
best interests of BlackRock, XXX and the Employee Stockholders if the Offerings
are completed, and, therefore, the parties desire to enter into this Agreement
which on the Effective Date will amend and restate the 1998 Stockholders
Agreement.
TERMS
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NOW, THEREFORE, in consideration of the foregoing and the covenants set
forth herein, the parties hereto agree as follows:
ARTICLE 1.
DEFINITIONS
For purposes of this Agreement, in addition to terms defined elsewhere
herein, the following terms when used herein shall have the following meanings:
1.1 "1940 Act" means the Investment Company Act of 1940, as amended, and
the rules and regulations of the Securities and Exchange Commission (the
"Commission") promulgated thereunder, as now or hereafter in effect.
1.2 "Affiliate" of, or any person or entity "affiliated" with, the person
or entity specified shall mean any corporation, partnership, joint venture,
association, organization or other person or entity that directly, or indirectly
through one or more intermediaries, controls or is controlled by, or is under
common control with, the person or entity specified.
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1.3 "BlackRock Board" shall mean the Board of Directors of BlackRock.
1.4 "BlackRock Employee Shares" means any shares of Class B Common Stock
owned by any Employee Stockholder or acquired from an Employee Stockholder by a
Permitted Transferee.
1.5 "BlackRock Management Committee" means a committee consisting of the
Chief Executive Officer and President of BlackRock and not less than five (5)
Managing Directors of BlackRock or its subsidiaries who are designated from time
to time by the Chief Executive Officer and President of BlackRock to serve on
this committee.
1.6 "Change of Control of PNC" shall be deemed to occur if, whether by
virtue of an actual or threatened proxy contest (including a consent
solicitation) or any merger, reorganization, consolidation or similar
transaction Persons who are directors of PNC immediately prior to such proxy
contest or the execution of the agreement pursuant to which such transaction is
consummated (other than a director whose initial assumption of office was in
connection with a prior actual or threatened proxy contest) cease to constitute
a majority of the Board of Directors of PNC or any successor entity immediately
following such proxy contest or the consummation of such transaction.
1.7 "Change of Control of BlackRock" shall be deemed to occur if (i) due
to a transfer of Voting Stock, a person other than PNC or its Affiliates holds a
majority of the voting power of the Voting Stock; or (ii) whether by virtue of
an actual or threatened proxy contest (including a consent solicitation) or any
merger, reorganization, consolidation or similar transaction, Persons who are
directors of BlackRock immediately prior to such proxy contest or the execution
of the agreement pursuant to which such transaction is consummated (other than a
director whose initial assumption of office was in connection with a prior
actual or threatened proxy contest) cease to constitute a majority of the Board
of Directors of BlackRock or any successor entity immediately following such
proxy contest or the consummation of such transaction.
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1.8 "Cause" shall have the meaning ascribed to it in each Employee
Stockholder's employment agreement with BlackRock or its Affiliates, if any.
1.9 "Deficient Opportunity" shall have the meaning ascribed to it in each
Employee Stockholder's employment agreement with BlackRock or its Affiliates, if
any.
1.10 "Disability" shall mean an Employee Stockholder's physical or mental
incapacity constituting disability in accordance with Employer's long-term
disability policy which in any event does or is reasonably expected to continue
for at least six (6) months.
1.11 "Effective Date" shall mean the effective date of this Agreement as
provided in Section 6.1 hereof.
1.12 "Employee Stockholders" means all holders of Class B Common Stock who
are employees of BlackRock or any of its Affiliates and who are parties to this
Agreement.
1.13 "Employer" shall mean, with respect to any Employee Stockholder,
BlackRock or any Affiliate thereof that employs such Employee Stockholder.
1.14 "Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder, as now
or hereafter in effect.
1.15 "Good Reason" shall have the meaning ascribed to it in each Employee
Stockholder's employment agreement with BlackRock or its Affiliates, if any.
1.16 "Insolvency" of any party hereto means that (i) the party or its
parent entity, if applicable, commences a voluntary case under the Federal
bankruptcy laws or any other applicable Federal or state bankruptcy, insolvency
or similar law, or consents to the entry of an order for relief in an
involuntary case under any such law or to the appointment of a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or other similar
official) of the party or its parent entity, if applicable, or of any
substantial part of its property, or makes an assignment for the benefit of its
creditors, or admits in writing its inability to pay its debts as they become
due or (ii) a decree or order for relief in respect of the party or its parent
entity, if applicable, is entered by a court having jurisdiction in an
involuntary case under the Federal bankruptcy laws or any other applicable
Federal or state bankruptcy, insolvency or
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similar law, or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or other similar official) of the party or its parent entity, if
applicable, or of any substantial part of its property, or, if applicable,
ordering the winding up or liquidation of its affairs, and any such decree or
order shall be unstayed and in effect for a period of 90 days and on account of
any such event the party or its parent entity, if applicable, shall, if
applicable, liquidate, dissolve or wind up.
1.17 "Market Value" shall mean, with respect to each share of Class B
Common Stock and Class A Common Stock, the average closing price per share of
Class A Common Stock on the New York Stock Exchange (as reported by The Wall
Street Journal or other authoritative source) for the ten (10) trading days
immediately preceding the date of determination.
1.18 "PNC" shall mean PNC Bank Corp., a Pennsylvania corporation.
1.19 "Registration Rights Agreement" shall mean the Registration Rights
Agreement, dated the date hereof, by and among BlackRock, XXX and the Employee
Stockholders.
1.20 "Securities Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated thereunder, as now
or hereafter in effect.
1.21 "Transfer" shall mean any actual or proposed disposition of all or a
portion of an interest (legal or equitable) by any means, direct or indirect,
absolute or conditional, voluntary or involuntary, including, but not limited
to, by sale, assignment, put, transfer, pledge, hypothecation, mortgage or other
encumbrance, court order, operation of law, distribution, settlement, exchange,
waiver, abandonment, gift, alienation, bequest or disposal. Notwithstanding the
foregoing, the term Transfer shall not include any pledge of BlackRock Employee
Shares to a financial institution in connection with any financing of the
purchase of BlackRock Employee Shares by an Employee Stockholder, or, in the
event of any default of any Employee Stockholder in connection with such
financing, any foreclosure by such financial institution on such BlackRock
Employee Shares, provided that such financial institution agrees to be subject
to and bound by the terms of this Agreement.
1.22 "Trigger Date" shall mean the first date following the date upon which
XXX or any XXX Affiliate or a Controlling Stockholder (as defined in
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BlackRock's Certificate of Incorporation) ceases to be the holder or beneficial
owner of a majority of the voting power of the Voting Stock.
1.23 "Voting Stock" shall mean the then outstanding shares of capital stock
of BlackRock entitled to vote generally on the election of directors and shall
exclude any class or series of capital stock of BlackRock only entitled to vote
in the event of dividend arrearages or any default under any provision of such
series thereon whether or not at the time of determination there are any such
dividend arrearages or defaults.
ARTICLE 2.
GOVERNANCE AND OPERATION OF BLACKROCK
2.1 Rights of BlackRock Employee Shares. Except for the restrictions on
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transfer imposed by this Agreement and any other agreements between the holders
of the BlackRock Employee Shares and BlackRock or any Affiliate thereof and/or
XXX, each BlackRock Employee Share shall have the same rights and privileges,
including voting rights, as the other shares of Class B Common Stock.
2.2 BlackRock Board of Directors.
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(a) Following the Effective Date and for so long as XXX and its
Affiliates own in the aggregate Voting Stock representing at least twenty-five
percent (25%) of the voting power of the Voting Stock, subject to applicable
law, (i) the Employee Stockholders agree to vote their Employee Shares for the
election of the four (4) director candidates nominated by XXX or its Affiliates
and (ii) XXX agrees to vote its shares of Class B Common Stock for the two (2)
director candidates nominated by the BlackRock Management Committee. From and
after the time XXX and its Affiliates own in the aggregate Voting Stock
representing less than twenty-five percent (25%) but more than ten percent (10%)
of the voting power of the Voting Stock, subject to applicable law, (x) the
Employee Stockholders agree to vote their Employee Shares for the election of
two (2) director candidates nominated by XXX or its Affiliate and (y) XXX agrees
to vote its shares of Class B Common Stock for two (2) director candidates
nominated by the BlackRock Management Committee.
(b) Following the Effective Date, subject to applicable law, the
Employee Stockholders and XXX agree not to take any action to amend the
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Amended and Restated Certificate of Incorporation (the "Certificate of
Incorporation") or the Bylaws of BlackRock in effect on the Effective Date in a
manner that would be inconsistent with the provisions of this Agreement, as
amended from time to time, and will vote their shares of Voting Stock against
any such proposed amendment.
(c) From and after such time as a person or entity other than PNC or
its Affiliate (the "Subsequent Principal Stockholder") owns capital stock of
BlackRock representing fifty percent (50%) or more of the voting power of the
Voting Stock, PAM's rights under this Section 2.2 shall be transferred and
assigned to the Subsequent Principal Stockholder.
ARTICLE 3.
TRANSFER RESTRICTIONS ON BLACKROCK EMPLOYEE SHARES;
PERMITTED TRANSFERS OF BLACKROCK EMPLOYEE SHARES
3.1 Transfer Restrictions on BlackRock Employee Shares. Except as
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expressly set forth in this Agreement, the BlackRock Employee Shares may not be
transferred, and any purported Transfer in violation of this provision shall be
null and void; provided that the restrictions on Transfer set forth in this
Section 3.1 will lapse with respect to one third of the BlackRock Employee
Shares held by each Employee Stockholder or Permitted Transferee on each of
December 31, 2000, December 31, 2001 and December 31, 2002 with respect to
shares issued prior to September 1999, or on each of September [ ],
September [ ] and September [ ] with respect to shares
issued in September 1999 (or such other dates as may be applicable to subsequent
issuances of Class B Common Stock), unless this restriction on Transfer is
earlier removed or accelerated in accordance with the provisions of this
Agreement or in accordance with the provisions of the Employee Stockholder's
employment agreement with BlackRock or its Affiliates. BlackRock Employee Shares
which are subject to this restriction on Transfer are sometimes referred to
herein as "Restricted BlackRock Employee Shares"; BlackRock Employee Shares on
which this restriction on Transfer has lapsed are sometimes referred to herein
as "Unrestricted BlackRock Employee Shares."
3.2 Lapse of Transfer Restrictions on Restricted BlackRock Employee
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Shares. The restrictions on Transfer set forth in Section 3.1 hereof will lapse
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immediately with respect to all Restricted BlackRock Employee Shares held by an
Employee Stockholder or any Permitted Transferee thereof and such shares shall
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become Unrestricted BlackRock Employee Shares in the event of the termination of
an Employee Stockholder's employment:
(i) by reason of death or Disability;
(ii) by Employer without Cause or Good Reason; or
(iii) if applicable, by such Employee Stockholder by reason of a
Deficient Opportunity.
For purposes of this Section 3.2, if BlackRock or an affiliate thereof
proposes to terminate the Employee Stockholder's employment for Cause or Good
Reason, as determined by BlackRock's chief executive officer and a majority of
the members of Management Committee (or, with respect to the individual who is
the chief executive officer on the date hereof, as determined by a majority of
the members of BlackRock's Board), BlackRock's chief executive officer (or, with
respect to the individual who is the chief executive officer on the date hereof,
BlackRock's Board) shall immediately notify the Employee Stockholder of such
fact in writing, specifying the action or conduct which resulted in such
determination (the date on which such notice is given being hereinafter referred
to as the "Notice Date"). Within 30 days, the Employee Stockholder shall have
the right to cure such action or conduct or to submit the determination of Cause
or Good Reason, as the case may be, to binding arbitration in accordance with
the Rules of the American Arbitration Association then in force. The award in
any such arbitration proceedings shall be nonappealable except as provided in
applicable arbitration statutes. If: (i) within 30 days, the Employee
Stockholder fails to cure such action or conduct to the satisfaction of
BlackRock's chief executive officer and a majority of the members of Management
Committee (or, with respect to the individual who is the chief executive officer
on the date hereof, to the satisfaction of BlackRock's Board) and fails to seek
arbitration of such determination of Cause or Good Reason, the termination shall
be treated as a termination for Cause or Good Reason as of such thirtieth day;
or (ii) the determination of Cause or Good Reason is upheld in arbitration, the
termination shall be treated as a termination for Cause or Good Reason as of the
date of such determination; or (iii) the determination of Cause or Good Reason
is overturned in arbitration, the termination shall be treated as a termination
without Cause or Good Reason as of the date of such determination.
3.3 Permitted Transfers of BlackRock Employee Shares.
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(a) Notwithstanding anything in Section 3.1 hereof to the contrary,
unless Article 4 is applicable to a proposed Transfer and is complied with,
Employee Stockholders shall be entitled to Transfer Restricted BlackRock
Employee Shares and Unrestricted BlackRock Employee Shares to a Permitted
Transferee; provided that (i) the Permitted Transferee executes a counterpart
copy of this Agreement and agrees to be bound by its terms and conditions and
(ii) the Permitted Transferee executes an irrevocable proxy in favor of the
transferring Employee Stockholder (or XXX or another Employee Stockholder in the
case of a Permitted Transferee that is an estate or personal representative)
entitling the proxyholder to exercise all voting rights with respect to the
transferred BlackRock Employee Shares.
(b) For purposes of this Agreement, "Permitted Transferee" means with
respect to any Employee Stockholder (i) BlackRock and its Affiliates, (ii) the
estate or personal representative of the Employee Stockholder (iii) any spouse,
child, grandchild or parent of the Employee Stockholder or (iv) any trust,
corporation, partnership, limited liability company or other entity if
substantially all of the economic interests in such entity are held by or for
the benefit of the Employee Stockholder and/or persons specified in clauses (ii)
or (iii) at all times while such entity holds any BlackRock Employee Shares.
(c) If any person who was a Permitted Transferee at the time an
Employee Stockholder transferred BlackRock Employee Shares to such person ceases
to be a Permitted Transferee for any reason, such person must Transfer any
BlackRock Employee Shares held by such person back to the applicable Employee
Stockholder or another Permitted Transferee designated by such Employee
Stockholder. If an Employee Stockholder Transfers BlackRock Employee Shares to
a Permitted Transferee and such Employee Stockholder ceases to be employed by
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BlackRock, this Agreement shall apply to all BlackRock Employee Shares held by
such Permitted Transferee that were Transferred by such Employee Stockholder and
such BlackRock Employee Shares shall be treated for all purposes as if held by
such Employee Stockholder at the time he or she ceased to be employed by
BlackRock.
(d) Notwithstanding anything to the contrary set forth herein, any
Employee Stockholder may pledge such Unrestricted BlackRock Employee Shares to a
pledgee pursuant to a bona fide pledge of such shares as collateral security for
any indebtedness or other obligation of any person; provided that, even if such
shares are registered in the name of the pledgee or its nominee (which
registration is hereby expressly permitted and shall not be considered a
Transfer hereunder), such shares shall remain subject to the provisions of this
subparagraph 3.3(d). In the event that such pledged shares of Class B Common
Stock (the "Pledged Stock") are foreclosed upon, each share of such Pledged
Stock shall be deemed, without further act on the part of the holder thereof or
BlackRock, to be converted into one share of Class A Common Stock, and stock
certificates formerly representing each such share of Class B Common Stock shall
thereupon and thereafter be deemed to represent such number of shares of Class A
Common Stock as equals the number of shares of Class A Common Stock into which
such shares of Class B Common Stock are converted effective upon the earlier of
(i) if the pledgor is contesting the foreclosure on such shares of Pledged
Stock, 30 days after the date on which the foreclosure on such Pledged Stock
becomes final and non-appealable or (ii) if the pledgor is not contesting the
foreclosure on such shares of Pledged Stock, 30 days after the date on which
such Pledged Stock is foreclosed upon; provided that the Pledged Stock shall not
be automatically converted as provided herein as a result of such foreclosure
if, prior to expiration of such 30-day period, the Pledged Stock shall be
transferred by the pledgee or the purchaser in such foreclosure to another
Employee Stockholder or one or more Permitted Transferees of an Employee
Stockholder.
(e) Notwithstanding anything to the contrary herein, BlackRock will
not register the Transfer of any shares of Class B Common Stock unless the
transferee and the transferor of such Class B Common Stock have furnished such
affidavits and other proof as BlackRock may reasonably request to establish that
such proposed transferee is a Permitted Transferee. Any purported Transfer
which is not permitted hereunder shall be null and void and shall not be
registered in the books and records of BlackRock.
3.4 BlackRock Board Approval Required for Certain Transfers of Class B
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Common Stock.
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(a) Notwithstanding any provision of this Agreement to the contrary,
no Transfer of any BlackRock Employee Shares may be made by any Employee
Stockholder or Permitted Transferee without the prior written consent of the
BlackRock Board if (i) as a result of such Transfer, BlackRock would be required
to register any class of its securities under the Securities Act, except if
BlackRock is required to register Class A Common Stock under the terms of the
Registration Rights Agreement or (ii) if such Transfer would constitute an
assignment of the advisory agreements of BlackRock or any investment advisory
subsidiary of BlackRock for purposes of the 1940 Act or the Investment Advisers
Act of 1940, as amended ("Advisers Act"). Any Transfer of BlackRock Employee
Shares consented to by the BlackRock Board that constitutes an assignment for
purposes of the 1940 Act shall only be consummated after entering into and
obtaining appropriate covenants to assure compliance with Section 15(f) of the
1940 Act.
(b) In connection with a Transfer of Class B Common Stock (or Class A
Common Stock into which such Class B Common Stock has been converted) by XXX or
an Affiliate thereof (i) XXX or its Affiliate shall (A) use its best efforts and
take all actions necessary or appropriate to cooperate with BlackRock in
complying with any requirements of the 1940 Act and the Advisers Act applicable
to such Transfer; and (B) require, as a condition of the closing of any such
Transfer, compliance with the second sentence of Section 3.4(a); and (ii)
BlackRock shall use its best efforts and take all actions necessary or
appropriate to cooperate with XXX or its Affiliate and with the transferee in
complying with any requirements of the 1940 Act, the Advisers Act and Section
3.4(a) applicable to such Transfer.
(c) Any purported Transfer which would result in a violation of
Section 3.4(a) hereof shall be null and void.
3.5 Restricted BlackRock Employee Shares Not Convertible Into Class A
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Common Stock. No shares of Class B Common Stock may be converted into shares of
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Class A Common Stock so long as such shares of Class B Common Stock are
Restricted BlackRock Employee Shares.
ARTICLE 4.
STOCKHOLDERS' RIGHT OF FIRST REFUSAL ON
DISPOSITIONS OF BLACKROCK CLASS B COMMON STOCK
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4.1 Transfers of Class B Common Stock to Third Parties. Subject to
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compliance with the provisions of Article 4 of this Agreement, XXX may Transfer,
in whole or in part, its shares of Class B Common Stock, and any Employee
Stockholder or Permitted Transferee may transfer, in whole or in part,
Unrestricted BlackRock Employee Shares beneficially owned by the Employee
Stockholder or a Permitted Transferee, to any third party at any time after the
Effective Date.
4.2 Offer Notice Regarding the BlackRock Common Stock. Except as
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otherwise provided in Section 4.9 hereof, if at any time after the Effective
Date any stockholder wishes to Transfer all or any part of the unrestricted
shares of Class B Common Stock held by such stockholder (a "Transferring
Stockholder") to another party to this Agreement or to a third party in a
private sale, pursuant to an effective registration statement under the
Securities Act or otherwise, other than Transfers permitted by Section 3.3 of
this Agreement which are not subject to this Article 4, the Transferring
Stockholder shall give written notice (the "Offer Notice") of the proposed
transaction to BlackRock and to the other parties to this Agreement (i)
identifying the Proposed Transferee, (ii) setting forth the proposed terms of
such Transfer, which shall be limited to transactions involving cash, cash
equivalents or marketable securities against delivery of the Class B Common
Stock, (iii) stating the Transfer Percentage (as defined herein) and (iv)
stating (A) whether more than 5% of the outstanding Class B Common Stock will be
transferred and (B) whether the Transfer will constitute an assignment under the
1940 Act. The giving by the Transferring Stockholder of an Offer Notice shall be
deemed to be an offer to Transfer the Class B Common Stock subject to the Offer
Notice to the other stockholders who are parties to this Agreement (to each such
stockholder in proportion to his or her ownership of the total number of
outstanding shares of Class B Common Stock, not counting the shares subject to
the Offer Notice for this purpose) for a purchase price equal to the value
proposed to be paid by the Proposed Transferee.
4.3 Response to Offer Notice. Within thirty (30) days of receipt of such
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Offer Notice, each stockholder who receives the Offer Notice must notify the
Transferring Stockholder whether such stockholder will exercise his, her or its
right to purchase the Class B Common Stock subject to the Offer Notice. Any
eligible stockholder that does not respond to the Offer Notice within the
allotted thirty (30) day period shall not have any right to purchase shares of
Class B Common Stock subject to the Offer Notice. Each stockholder who receives
the Offer Notice may indicate in his, her or its response to the Offer Notice a
number of shares of Class B Common Stock that such stockholder is prepared to
purchase in addition to any shares of Class
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B Common Stock which are allocated to such stockholder based on such
stockholder's proportionate ownership of BlackRock. Any shares of Class B Common
Stock which are subject to the Offer Notice which are not claimed by any
stockholder entitled to claim such shares shall be allocated to those
stockholders who indicate in their response to the Offer Notice that they are
prepared to purchase remaining shares of Class B Common Stock in addition to the
shares which are allocated to them based on the proportionate ownership
criteria. If the stockholders who express an interest in purchasing remaining or
additional shares of Class B Common Stock indicate an interest in more shares
than are available from the remaining shares being offered by the Transferring
Stockholder, such remaining shares shall be allocated among the stockholders
expressing an interest in purchasing additional shares in proportion to such
stockholders' relative ownership percentages of Class B Common Stock.
4.4 Settlement for Purchases by Stockholders. Settlement for Class B
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Common Stock to be purchased by stockholders pursuant to this Article 4 shall be
thirty (30) calendar days after the expiration of the thirty (30) day period
provided for in Section 4.3 hereof or such other date as may be agreed to by the
relevant parties. At such settlement, (i) the stockholders who have elected to
purchase Class B Common Stock pursuant to this Article 4 shall deliver the
consideration for such shares to the Transferring Stockholder and (ii) the
Transferring Stockholder shall deliver properly endorsed certificates
representing such Class B Common Stock to the appropriate other stockholders.
4.5 Right to Transfer to Proposed Transferee. Subject to Section 4.6 of
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this Agreement, to the extent eligible stockholders of BlackRock do not exercise
their purchase rights pursuant to this Article 4, the Transferring Stockholder
may, within three months from the date of the Offer Notice, if no eligible
stockholders exercise their purchase right, or the date of settlement pursuant
to Section 4.4 hereof, if some eligible stockholders exercise their purchase
right, Transfer all or a portion of the shares of Common Stock which were
subject to the Offer Notice and not purchased by other eligible stockholders of
BlackRock pursuant to this Article 4, to the Proposed Transferee identified in
the Offer Notice at a purchase price equal to or greater than the purchase price
specified by the Transferring Stockholder in the Offer Notice. If the
Transferring Stockholder does not Transfer the Common Stock in the three-month
period provided for in this Section 4.5, a Transfer by the Transferring
Stockholder after such period shall again be subject to the provisions of this
Article 4 or, if applicable, Article 3.
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4.6 Tag Along Rights.
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(a) If a Transferring Stockholder proposes to Transfer more than five
percent 5% of the outstanding Voting Stock pursuant to Section 4.2 hereof, each
BlackRock stockholder that is a party to this Agreement that elects to not
exercise the purchase right pursuant to Section 4.3 hereof shall be entitled to
exercise tag along rights as set forth in this Section 4.6 by written notice (a
"Tag Along Notice") to the Transferring Stockholder not later than 30 days
following receipt of the related Offer Notice. The tag along rights provided in
this Article 4 shall not apply to any transfer of shares of Class A Common
Stock. The Tag Along Notice shall specify the number of shares of Class B Common
Stock that such stockholder shall request to Transfer pursuant to this Section
4.6, the maximum number of which shall be determined in accordance with the
provisions set forth below:
(i) If the proposed Transfer shall not constitute an assignment
under the 1940 Act, each such BlackRock stockholder shall be entitled to require
Transfer a maximum number of such BlackRock stockholder's shares of Class B
Common Stock equal to the product of (A) the ratio of the number of shares of
Class B Common Stock proposed to be transferred by the Transferring Stockholder
to the total number of shares of Class B Common Stock held by such Transferring
Stockholder (the "Transfer Percentage") and (B) the total number of
unrestricted shares of Class B Common Stock held by such BlackRock stockholder.
(ii) If the proposed Transfer shall constitute an assignment
under the 1940 Act, (A) the restriction on Transfer set forth in Section 3.1
hereof will lapse immediately with respect to that number of Restricted
BlackRock Employee Shares held by each Employee Stockholder or any Permitted
Transferee thereof equal to (x) the product of the Transfer Percentage and the
total number of shares of Class B Common Stock held by such Employee Stockholder
or Permitted Transferee thereof, minus (y) the total number of Unrestricted
BlackRock Employee Shares held by such Employee Stockholder or any Permitted
Transferee thereof (provided that if such number shall be negative such number
shall be deemed to be zero) and (B) each such BlackRock stockholder shall be
entitled to require Transfer of a maximum number of such BlackRock stockholder's
shares of Class B Common Stock equal to the product of the Transfer Percentage
and the total number of shares of Class B Common Stock held by such BlackRock
stockholder.
(iii) Notwithstanding the provisions of clauses (i) and (ii)
above, if the Proposed Transferee advises the Transferring Stockholder that it
will not purchase the total number of shares offered in the aggregate by the
Transferring
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Stockholder and the other BlackRock stockholders pursuant to this Section 4.6,
then the number of shares that may be Transferred by the Transferring
Stockholder and by each stockholder that has delivered to the Transferring
Stockholder a Tag Along Notice pursuant to this Section 4.6 shall be reduced
ratably on the basis of the number of shares that each such stockholder,
including the Transferring Stockholder, has requested to be included in such
Transfer.
(b) At least ten (10) business days prior to the consummation of a
Transfer by the Transferring Stockholder described in the Offer Notice, the
Transferring Stockholder shall provide written notice (a "Consummation Notice")
to the BlackRock stockholders entitled to exercise tag along rights pursuant to
this Section 4.6 stating (i) the number of shares of Class B Common Stock that
each such stockholder will be entitled to Transfer pursuant to this Section 4.6
and (ii) the date the Transfer will be consummated. At least five (5) business
days prior to the date of the consummation of the Transfer by the Transferring
Stockholder to the Proposed Transferee identified in the Offer Notice, each
stockholder exercising rights pursuant to this Section 4.6 shall deliver to the
Transferring Stockholder for Transfer to the Proposed Transferee one or more
certificates, properly endorsed for Transfer, which represent the number of
shares of Class B Common Stock the stockholder is entitled to sell as provided
in the Consummation Notice. The certificate(s) delivered to the Transferring
Stockholder shall be Transferred to the transferee as part of the consummation
of the Transfer of Class B Common Stock pursuant to the terms and conditions
specified in the Offer Notice and the Consummation Notice.
4.7 Representations of Selling Stockholders. In connection with the
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Transfer contemplated by Section 4.6 hereof or any Transfer among stockholders
permitted by this Agreement, any selling stockholder shall be required to make
customary representations and warranties regarding the Class B Common Stock that
it proposes to Transfer, including, but not limited to, such stockholder's
ownership of and authority to Transfer such Class B Common Stock, the absence of
any liens or other encumbrances on such Class B Common Stock, and the compliance
of such Transfer with the federal and state securities laws and all other
applicable laws and regulations.
4.8 Insolvency of a Party. The Insolvency of any party hereto shall be
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deemed to be an offer to sell the Class B Common Stock owned by such party and
its Affiliates and Permitted Transferees (other than a financial institution
referenced in the second sentence of Section 1.17 hereof) to the other
stockholders of BlackRock who are parties hereto in accordance with the terms
and procedures set forth in this
14
Article 4, except that (i) the price per share of Class B Common Stock offered
in such event shall be equal to the Market Value of each share of Class B Common
Stock determined as of the date on which notice of such offer is made in
accordance with the provisions of this Article 4 and (ii) Section 4.6 hereof
shall not apply. If a court or other governmental authority permits a transfer
of Class B Common Stock to a party other than stockholders of BlackRock in
connection with a bankruptcy or other insolvency proceeding notwithstanding the
preceding sentence, such third party shall be subject to and bound by the terms
of this Agreement and shall be required to offer to sell the Class B Common
Stock acquired by such third party to the other stockholders of BlackRock who
are parties to this Agreement in accordance with the first sentence of this
Section 4.8. Each share of Class B Common Stock that is offered for sale
pursuant to this Section 4.8 and is not purchased by the stockholders of
BlackRock who are parties to this Agreement pursuant to this Article 4 shall be
deemed to be offered for sale to BlackRock at a purchase price equal to the
price at which such share was offered to such stockholders of BlackRock and, if
not repurchased by BlackRock within a reasonable time, automatically convert
into one share of Class A Common Stock.
4.9 Transfers to Affiliates. Notwithstanding any other term of this
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Agreement to the contrary, XXX may Transfer, in one or more transactions, all or
a portion of the Class B Common Stock held by it to any of its Affiliates and
subsequent Transfers of Class B Common Stock may be made among Affiliates of PNC
(other than BlackRock), provided that (i) any transferee shall agree in writing
prior to such Transfer to be bound by the terms of this Agreement and (ii) any
such Transfer must comply with Section 3.4 hereof. Any Transfer made pursuant to
this Section 4.9 shall not be subject to the other provisions of Article 4 of
this Agreement.
If, at any time, any person that received Class B Common Stock from
XXX or its Affiliates ceases to be an Affiliate of PNC for any reason, such
person must Transfer any shares of Class B Common Stock held by it back to PNC
or another Affiliate of PNC designated by PNC. In addition, if XXX shall cease
to be an Affiliate of PNC while XXX holds any Class B Common Stock, XXX must
Transfer any shares of Class B Common Stock held by it to PNC or an Affiliate of
PNC designated by PNC. Notwithstanding the foregoing provisions of this Section
4.9, PNC may transfer its interest in XXX or another Affiliate of PNC that holds
PNC's direct or indirect interest in shares of Class B Common Stock to a person
that is not an Affiliate of PNC and such transfers shall be deemed a transfer of
Class B Common Stock subject to the terms of this Article 4.
15
4.10 Notwithstanding any provisions of this Article 4, each share of Class
B Common Stock that is Transferred by will or operation of law as a result of
the death of an Employee Stockholder or his or her Permitted Transferee shall,
if not Transferred to a Permitted Transferee, automatically convert into one
share of Class A Common Stock.
4.11 In the event that, following a Change of Control of PNC or a Change
of Control of BlackRock, any successor entity to either PNC or BlackRock,
respectively, (i) offers to purchase all or substantially all outstanding shares
of Class A Common Stock or Class B Common Stock or (ii) purchases sufficient
shares of Class A Common Stock to cause such stock to be delisted from the
national securities exchange on which such stock is then listed, PNC or
BlackRock, as applicable, shall require such successor entity to offer to
purchase all Class B Common Stock owned by each Employee Stockholder at the
highest price paid to other stockholders for such Class A Common Stock or Class
B Common Stock, as applicable, in purchases or offers to purchase resulting from
transactions described in clauses (i) or (ii) above, and to offer to cancel all
BlackRock stock options held by each Employee Stockholder, if any, for a cash
payment in an amount based upon the excess of the price offered to other
stockholders over the exercise price of such stock options.
ARTICLE 5.
REPURCHASES OF RESTRICTED BLACKROCK EMPLOYEE SHARES
BY BLACKROCK; MANDATORY CONVERSION OF CLASS B COMMON
STOCK
5.1 Repurchases of Restricted BlackRock Employee Shares Upon Termination
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of Employment. Any Restricted BlackRock Employee Shares held by an Employee
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Stockholder or a Permitted Transferee of such Employee Stockholder as of the
date of the termination of such Employee Stockholder's employment by Employer,
the restrictions on which have not lapsed as a result of such termination of
employment in accordance with Section 3.2 hereof, shall be offered for sale to
BlackRock and BlackRock shall purchase such shares. The purchase price to be
paid by BlackRock for such Restricted BlackRock Employee Shares shall be the
lower of (i) the Market Value determined as of a date three (3) business days
prior to the date on which such repurchase is consummated pursuant to Section
5.2 hereof or (ii) the consideration paid by the Employee Stockholder for
Restricted BlackRock Employee Shares or the shares of BFM Common Stock that were
exchanged for such Restricted
16
BlackRock Employee Shares pursuant to the Exchange Agreement, as the case may
be.
5.2 Settlement for Restricted BlackRock Employee Shares. The purchase by
---------------------------------------------------
BlackRock of Restricted BlackRock Employee Shares pursuant to this Article 5
shall be consummated at a closing which shall take place on a date specified by
BlackRock, which date shall not be later than sixty (60) calendar days following
the effective date of the termination occurrence of the event which requires
BlackRock to purchase Restricted BlackRock Employee Shares.
5.3 Treatment of Unrestricted BlackRock Employee Shares Upon Termination
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of Employment. Subject to Sections 5.1 and 5.2 above, upon the termination of
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any Employee Stockholder's employment with Employer each share of such Employee
Stockholder's Class B Common Stock shall be converted into one share of Class A
Common Stock. Each Employee Stockholder hereby agrees to comply with the
procedures set forth herein and take any other action required in order to
convert such shares of Class B Common Stock into Class A Common Stock.
ARTICLE 6.
EFFECTIVE DATE; TERMINATION; ADDITIONAL PARTIES
6.1 Effective Date. All rights and obligations set forth in this
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Agreement shall take effect upon the filing of the Certificate of Incorporation
of BlackRock with the Delaware Secretary of State. On the Effective Date, the
1998 Stockholders Agreement shall terminate without any consideration paid
thereunder, and from and after the Effective Date, the 1998 Stockholders
Agreement shall be void and of no force and effect.
17
6.2 Termination.
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(a) With respect to any holder of Class B Common Stock, all rights
and obligations set forth in this Agreement, to the extent not previously
terminated, shall terminate at such time as such holder shall cease to own any
shares of Class B Common Stock.
(b) With respect to XXX, all rights and obligations of XXX set forth
in this Agreement, to the extent not previously terminated, shall terminate at
such time as XXX or any Affiliate shall cease to own any shares of Class B
Common Stock.
(c) This Agreement shall terminate automatically if all outstanding
shares Class B Common Stock represents less than five percent (5%) of the voting
power of the outstanding Voting Stock of BlackRock at such time and there are no
remaining Restricted BlackRock Employee Shares.
(d) This Agreement may be terminated at any time upon the mutual
agreement of XXX and the holders of a majority in interest of the BlackRock
Employee Shares.
6.3 Additional Parties. Any person which proposes to acquire any Class B
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Common Stock or any interest therein shall be required as a condition precedent
to such transaction to become a party to this Agreement by executing this
Agreement or a counterpart hereof. Any such additional party shall be subject to
and bound by the terms and conditions of this Agreement. Any employee of
BlackRock or any Affiliate thereof that becomes a party to this Agreement after
the date hereof shall be deemed an "Employee Stockholder" for purposes of this
Agreement. BlackRock shall promptly notify each existing party to this Agreement
of the addition of each new party hereto and such notice shall include the
requisite information for providing notice to such new party pursuant to Section
7.1 hereof
ARTICLE 7.
MISCELLANEOUS
7.1 Notices. All notices, demands and requests required or permitted to
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be given under the provisions of this Agreement shall be: (i) in writing, (ii)
sent by telecopy (with receipt personally confirmed by telephone), delivered by
personal
18
delivery, or sent by commercial delivery service or certified mail, return
receipt requested, (iii) deemed to have been given on the date telecopied with
receipt confirmed, the date of personal delivery or the date set forth in the
records of the delivery service or on the return receipt and (iv) addressed as
follows:
If to BlackRock: BlackRock, Inc.
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000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxx
Telecopy: 000-000-0000
Telephone: 000-000-0000
with a copy (which shall
not constitute notice) to: Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Telecopy: 212-735-2000
Telephone: 000-000-0000
If to XXX: PNC Asset Management, Inc.
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c/o PNC Bank Corp.
Xxx XXX Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Telecopy: 000-000-0000
Telephone: 000-000-0000
with a copy (which shall
not constitute notice) to: Xxxxxx & Xxxxxx
000 Xxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Attention: Xxxxxx Xxxxxx
Telecopy: 202-942-5999
Telephone: 000-000-0000
If to an Employee
Stockholder or
Permitted
19
Transferee: The address set forth on the stock
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transfer records of BlackRock
or to any such other or additional persons and addresses as the parties may from
time to time designate in writing delivered in accordance with this Section 7.1.
All notices, requests, demands and other communications hereunder shall be
deemed delivered when received by all persons entitled to their receipt.
7.2 Assignability; Binding Effect. This Agreement shall not be assignable
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by any of the parties hereto except as expressly permitted by this Agreement or
in connection with the Transfer of a party's Class B Common Stock in accordance
with the terms of this Agreement. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective successors, heirs,
executors, administrators and permitted assigns.
7.3 Governing Law and Dispute Resolution.
------------------------------------
(a) This Agreement and all actions contemplated hereby shall be
construed and enforced in accordance with, and the rights of the parties shall
be governed by, the laws of the State of Delaware applicable to contracts made
and to be performed entirely within the State of Delaware and without giving
effect to its choice or conflict of laws, rules or principles.
(b) If a dispute should arise with respect to the terms of this
Agreement, the parties shall have thirty (30) days from the date written notice
of the dispute is given by one party to another party to resolve the matter
through informal negotiation. If the matter is not resolved within those thirty
(30) days, and if any party wishes to pursue the dispute, the dispute shall be
submitted to binding arbitration under the Commercial Rules of the American
Arbitration Association. Arbitration may be initiated by any party making a
written demand for arbitration to the other party within a reasonable time from
the date the claim, dispute or controversy arose. The party making such demand
shall designate a competent and disinterested arbitrator in such written demand.
Within thirty (30) days of such demand, the other party shall designate a
competent and disinterested arbitrator and shall give written notice of such
designation to the party making the initial demand for arbitration. Within
thirty (30) days after such notices have been given, the two arbitrators so
designated shall select a third competent and disinterested arbitrator and give
notice of such selection to both parties. If the two arbitrators designated by
the parties are unable to agree on a third arbitrator within (30) days, then
upon request of either
20
party such third arbitrator shall be randomly selected from a list of available
arbitrators as provided by the American Arbitration Association. In no event may
the arbitration be initiated more than one year after the date one party gave
written notice to the other party. Any arbitration proceeding pursuant to this
Section 7.3(b) shall be conducted in the City of New York. The arbitrators shall
have no authority to award any punitive or exemplary damages and may interpret
or construe, but shall not vary or ignore, the terms of this Agreement and shall
be bound to follow controlling law. Each party shall pay its chosen arbitrator,
and shall bear equally the expenses of the third arbitrator and all other
expenses of arbitration are to be borne by the party incurring them. Any
arbitration award made pursuant to this Section 7.3(b) shall be nonappealable
except as provided in applicable arbitration statutes.
(c) Notwithstanding Section 7.3(b) hereof, in connection with any
dispute under this Agreement the parties to this Agreement shall be entitled to
seek injunctive relief (but not damages) in any court of equity having
jurisdiction over the relevant parties.
7.4 Counterparts. This Agreement may be executed simultaneously in one or
------------
more counterparts and may be executed by facsimile. Each such counterpart shall
be deemed to be an original instrument, but all such counterparts together shall
constitute but one agreement.
7.5 Entire Agreement. This Agreement, the Initial Public Offering
----------------
Agreement dated the date hereof between PNC, XXX and BlackRock, the Registration
Rights Agreement, and any employment agreements between BlackRock and any
Employee Stockholders constitute the entire agreement among the parties hereto
with respect to the transactions contemplated hereby and thereby and, except as
provided herein, supersede all previous oral and written and all contemporaneous
oral negotiations, commitments, writings and understandings with respect to such
transactions.
7.6 Amendments and Waivers.
----------------------
(a) This Agreement may be amended only by the written agreement of
XXX, BlackRock and the director(s) of BlackRock nominated by the BlackRock
Management Committee; provided, however, that if any proposed amendment to this
Agreement would materially and adversely affect any holders of BlackRock
Employee Shares, the amendment must also be approved by a majority in interest
of those holders of BlackRock Employee Shares.
21
(b) No delay or omission on the part of any party hereto in enforcing
any of the obligations of any other party hereto shall operate as a waiver of
such obligation or operate to constrain the rights of any other party hereunder
to enforce such obligation. No waiver of any one right shall operate as a
waiver of any subsequent right.
7.7 Headings. The headings contained in this Agreement are for reference
--------
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
7.8 Severability. It is the intent and understanding of each party hereto
------------
that if, in any action or proceeding before any court or agency legally
empowered to enforce this Agreement or arbitrator, any term, restriction,
covenant or promise is found to be unreasonable and for that reason
unenforceable, then such term, restriction, covenant or promise shall not
thereby be terminated but that it shall be deemed modified to the minimal extent
necessary to make it enforceable by such court or agency and, if it cannot be so
modified, that it shall be deemed amended to delete therefrom such provision or
portion adjudicated to be invalid or unenforceable, such modification or
amendment in any event to apply only with respect to the operation of this
Agreement in the particular jurisdiction in which such adjudication is made.
7.9 Legend. All certificates representing the Class B Common Stock
------
covered by this Agreement shall bear on their face the following legend, or one
substantially similar thereto:
The shares represented by this certificate have not been registered under
either the Securities Act of 1933 (the "Act") or applicable state or
foreign securities laws (the "Other Acts") and shall not be sold or
otherwise disposed of by the holder hereof except upon registration of such
sale or disposition in accordance with the securities registration
requirements of the Act or any applicable Other Acts, or pursuant to an
exemption from such registration requirements. In addition, the shares
represented by this certificate may be transferred only in compliance with
the provisions of the Stockholders Agreement dated as of ____________ ___,
1999 (a copy of which is available for inspection at the executive offices
of BlackRock, Inc. ("BlackRock") at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 and will be provided to a registered holder of securities of
BlackRock upon request) and no person who receives such shares in
connection with a transfer which does not meet the
22
qualifications prescribed by the Stockholders Agreement is entitled to own
or to be registered as the record holder of such shares.
7.10 Further Agreements. Each of the parties hereto agrees to execute all
------------------
such further instruments and documents and to take all such further action as
any other party may reasonably require in order to effectuate the terms and
purposes of this Agreement.
7.11 Financial Information. BlackRock shall make available to each holder
---------------------
of Class B Common Stock all financial statements, reports and other information
made available to holders of Class A Common Stock.
23
IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
have caused this Agreement to be executed by their duly authorized officers, as
appropriate, as of the date first above written.
BLACKROCK, INC.
By:________________________________
Name:______________________________
Title:_____________________________
PNC ASSET MANAGEMENT, INC.
By:________________________________
Name:______________________________
Title:_____________________________
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