Exhibit 4.2
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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 Agree
ment"), 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 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"), 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 ("Com
mission") 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) PNC
transfers 50% of the voting power of the Voting Stock of BlackRock and PNC or
its Affiliates are no longer the stockholders with the greatest percentage of
the voting power of the Voting Stock of BlackRock 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.
1.8 "Cause" shall mean the occurrence or existence of any of the following
with respect to the Employee Stockholder: (i) a material breach by the Employee
Stockholder of any written policies of BlackRock or an affiliate thereof
required by law or established to maintain compliance with applicable law; (ii)
any
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act of fraud, misappropriation, dishonesty, embezzlement or similar conduct
by the Employee Stockholder against BlackRock or an affiliate thereof or any
client of BlackRock or an affiliate thereof; or (iii) conviction (including a
plea of nolo contendere) of the Employee Stockholder for the commission of a
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felony; or (iv) entry of any order against the Employee Stockholder by any
governmental body having regulatory authority with respect to BlackRock's
business, which order relates to or arises out of the Employee Stockholder's
employment relationship with BlackRock. A determination of Cause may be made
only by BlackRock's Chief Executive Officer and a majority of the members of the
BlackRock Management Committee (excluding the Employee Stockholder, if
applicable), except that with respect to BlackRock's Chief Executive Officer,
such determination may be made only by a majority of the Board of Directors of
BlackRock.
1.9 "Deficient Opportunity" shall exist if (i) the Employee Stockholder
does not have duties, authority and reporting responsibilities in BlackRock or
an affiliate thereof which are substantially equivalent to or greater than those
at BlackRock or an affiliate thereof as of the commencement of the Term, unless
otherwise mutually agreed upon, or (ii) the Employee Stockholder's principal
work location has been relocated to any place more than thirty (30) miles from
the principal work location as of the commencement of the Term, unless
otherwise mutually agreed upon or at the direction of the Chief Executive
Officer, or (iii) there occurs a Change of Control of BlackRock or a Change of
Control of PNC and, by or at the direction of the entity effecting such Change
of Control and without the consent of the Chief Executive Officer, the sum of
(1) the aggregate annual salary and bonus paid to or earned by the Employee
Stockholder with respect to the fiscal year in which such Change of Control
occurs or with respect to either of the two succeeding fiscal years and (2) the
value of other incentive awards granted to the Employee Stockholder in the
applicable fiscal year (such sum, the "Compensation Amount"), is less than the
sum of (x) the average annual salary and bonus paid to or earned by the Employee
Stockholder with respect to the two fiscal years immediately preceding the year
in which such Change of Control occurs and (y) the average value of other
incentive awards granted to the Employee Stockholder in the two fiscal years
immediately preceding the year in which such Change of Control occurs (such sum,
the "Average Historical Compensation"); provided, however, that the failure of
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the Employee Stockholder's Compensation Amount to equal or exceed the Employee
Stockholder's Average Historical Compensation shall not constitute a Deficient
Opportunity if such failure is solely due to adverse financial performance of
BlackRock during the applicable fiscal year.
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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 mean failure of the Employee Stockholder to
substantially perform any material assigned duties (other than by reason of
death, Disability or Deficient Opportunity). A determination of Good Reason may
be made only by BlackRock's Chief Executive Officer and a majority of the
members of the BlackRock Management Committee (excluding the Employee
Stockholder, if applicable), except that with respect to BlackRock's Chief
Executive Officer, such determination may be made only by a majority of the
Board of Directors of BlackRock.
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 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 similar law, or
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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 "Registration Rights Agreement" shall mean the Registration Rights
Agreement, dated the date hereof, by and among BlackRock, XXX and the Employee
Stockholders.
1.19 "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.
1.20 "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.
1.21 "Trigger Date" shall mean the first date following the date upon
which XXX or any XXX Affiliate or a Controlling Stockholder (as defined in
BlackRock's Certificate of Incorporation) ceases to be the holder or beneficial
owner of majority of voting power of the Voting Stock.
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1.22 "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 or, if
applicable, Class A 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 capital stock of BlackRock, 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 BlackRock, 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) directors
candidates nominated by the BlackRock Management Committee.
(b) Following the Effective Date, subject to applicable law, the
Employee Stockholders and XXX agree to take no action to amend the Amended and
Restated Certificate of Incorporation (the "Certificate of Incorporation") or
Amended and Restated Bylaws of BlackRock in effect on the Effective Date in a
manner that
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would be inconsistent with the provisions of this Agreement, as amended from
time to time and will 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") (i) owns capital stock of
BlackRock representing fifty percent (50%) or more of the voting power of the
Voting Stock of BlackRock and (ii) owns Voting Stock representing greater voting
power than any other stockholder of BlackRock, 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 Restriction 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 (or such other dates
as may be applicable to subsequent issuances of Class B Common Stock), unless
this restriction on Transfer is earlier removed in accordance with the
provisions of this Agreement. 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
immediately with respect to all Restricted BlackRock Employee Shares held by an
Employee Stockholder or any Permitted Transferee thereof and such shares shall
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
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(iii) if applicable, by such Employee Stockholder by reason of a
Deficient Opportunity.
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
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.
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(d) Notwithstanding anything to the contrary set forth herein, but
subject to the provisions of subparagraph 3.3(f) below, in the event of any
direct or indirect transfer of beneficial ownership of any shares of Class B
Common Stock which, had such transfer also been a transfer of record ownership
of such shares of Class B Common Stock, would not have been to a Permitted
Transferee, each share of Class B Common Stock transferred 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 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 could be converted pursuant to the terms hereof.
(e) Notwithstanding anything to the contrary set forth herein, any
event which would result in the automatic conversion of shares of Class B Common
Stock into shares of Class A Common Stock shall not result in such conversion
if, after such event, the record holder of such shares of Class B Common Stock
is a corporation, limited liability company or partnership as to which, with
respect to the shares of Class B Common Stock held by such corporation, limited
liability company or partnership, any Permitted Transferee of the Employee
Stockholder prior to such event has, directly or indirectly, both investment
power (which includes the power to dispose, or direct the disposition of, such
shares of Class B Common Stock) and voting power (which includes the power to
vote, or direct the voting of, such shares of Class B Common Stock); provided
that no transaction or event intended to avoid the automatic conversion
provision of this subparagraph 3.3(e) shall in any event be entitled to the
benefit of this subparagraph 3.3(e).
(f) Notwithstanding anything to the contrary set forth herein, any
Employee Stockholder may pledge such Employee Stockholder's shares of Class B
Common Stock 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 sub paragraph 3.3(f). 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 one share of Class B Common
Stock shall thereupon and thereafter be
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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 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 a Employee
Stockholder or one or more Permitted Transferees of an Employee Stockholder.
(g) 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. In addition, upon any
purported transfer of shares of Class B Common Stock not permitted hereunder,
each share of Class B Common Stock purported to be so transferred 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 one 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 could be converted pursuant to the terms hereof, and
BlackRock shall register such shares of Class A Common Stock in the name of the
person to whom such shares of Class B Common Stock were purported to be
transferred.
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
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BlackRock for purposes of the 1940 Act or the Investment Advisers Act of 1940,
as amended ("Advisers Act"). Any Transfer of BlackRock Employee Shares con
sented 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
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 Stock
holder or Permitted Transferee may transfer Unrestricted BlackRock Employee
Shares, 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
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stockholder wishes to Transfer all or any part of the unrestricted shares of
Class B Common Stock held by such stockholder, including XXX ("Transferring
Stock holder"), to a third party, other than as permitted by Section 3.3 of this
Agreement, the Transferring Stockholder shall give written notice (the "Offer
Notice") of the proposed transaction to BlackRock and 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 stock holders 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. The right of first
refusal provided in this Article 4 shall not apply to any transfer of shares of
Class A Common Stock.
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) 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 shall also be entitled to 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 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 stock holders 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
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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 BlackRock Stockholders. Settlement for
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Class B Common Stock to be purchased by BlackRock stockholders pursuant to this
Article 4 shall be thirty (30) calendar days after the expiration of the thirty
(30) 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 BlackRock
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 BlackRock stockholders.
4.5 Right to Transfer to Third Party. Subject to Section 4.6 of this
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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 Class B 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 third party
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 Class B Common Stock in the
three-month period provided for in this Section 4.5, the Transferring
Stockholder shall thereafter only be entitled to Transfer any shares of Class B
Common Stock to a third party upon compliance with all of the provisions of this
Article 4 or Article 3.
4.6 Tag Along Rights.
----------------
(a) If a Transferring Stockholder proposes to Transfer more than five
percent 5% of the 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
14
of Class B Common Stock that such stockholder will require to be transferred
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 assign ment under
the 1940 Act, 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 (A) the ratio of the number of shares of
Class B Common Stock proposed to be transferred by the Transferring Stock
holder to the total number of shares of Class B Common Stock held by such Trans
ferring 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.
(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 third party 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 third party 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
15
provided in the Consummation Notice. The certificate(s) delivered to the
Transfer ring Stockholder shall be Transferred to the third party 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
---------------------------------------
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
---------------------
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 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 their
rights of first refusal under this Article 4, shall be repurchased by BlackRock
at a purchase price equal to the price at which such share was offered to such
stockholders of BlackRock.
4.9 Transfers to Affiliates. Notwithstanding any other term of this
-----------------------
Agreement to the contrary, XXX may Transfer, in one or more transactions, all or
a
16
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 XXX for any reason, such
person must Transfer any shares of Class B Common Stock held by it back to XXX
or another Affiliate of XXX designated by XXX. 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, and PNC or such Affiliate, as applicable. A transfer by
PNC of all of its interest in XXX shall be deemed a transfer of Class B Common
Stock subject to the terms of this Article 4.
ARTICLE 5.
REPURCHASES OF RESTRICTED BLACKROCK EMPLOYEE SHARES BY BLACKROCK; MANDATORY
CONVERSION OF CLASS B COMMON STOCK
5.1 Repurchase of Restricted BlackRock Employee Shares. Any Restricted
--------------------------------------------------
BlackRock Employee Shares held by an Employee 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 Re
stricted 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 and (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
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
17
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 occurrence of the event which requires BlackRock to purchase Restricted
BlackRock Employee Shares.
5.3 Conversion of Unrestricted BlackRock Employee Shares. Subject to
----------------------------------------------------
Sections 5.1 and 5.2 above, immediately following the termination of any
Employee Stockholder's employment with Employer, each Class B Unrestricted
BlackRock Employee Share held by such Employee Stockholder shall be converted
into one share of Class A Common Stock in accordance with the procedures set
forth herein and in Article FOURTH of BlackRock's Certificate of Incorporation.
Each Employee Stockholder hereby agrees to comply with the procedures set
forth herein and in Article FOURTH 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
--------------
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 Agreements shall terminate without any consideration paid
thereunder, and from and after the Effective Date, the 1998 Stockholders
Agreements shall be void and of no force and effect.
6.2 Termination.
-----------
(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.
18
(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 capital stock of BlackRock at such time.
(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
------------------
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
-------
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 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.
--------------- 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
19
not constitute notice) to: Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Telecopy: 000-000-0000
Telephone: 000-000-0000
If to XXX: PNC Asset Management, Inc.
--------- c/o PNC Bank Corp.
Xxx XXX Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: General Counsel
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
Transferee: The address set forth on the stock
---------- transfer records of BlackRock
or to any such other or additional persons and addresses as the parties may from
time to time designate in a 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. Except as expressly permitted by this
-----------------------------
Agreement, this Agreement shall not be assignable by any of the parties hereto
without the prior written consent of (i) XXX and the BlackRock Management
Committee, in the case of any proposed assignment by BlackRock or by an Employee
Stockholder or Permitted Transferee thereof, or (ii) BlackRock and the
20
BlackRock Management Committee, in the case of any proposed assignment by XXX.
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 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
21
incurring them. Any arbitration award made pursuant to this Section 7.3(b) shall
be nonappealable except as provided in applicable arbitration statues.
(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.
(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.
22
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 avail able 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 qualifications
prescribed by the Stockholders Agreement is entitled to own or to be
registered as the record holder of such shares but the record holder of
this certificate may at such time and in the manner set forth in said
Stockholders Agreement convert such shares into the same number of shares
of Class A Common Stock for purposes of effecting the sale or other
disposition of such shares to any person. Upon any such transfer in
violation of the Stockholders Agreement, the person receiving this
certificate in connection
23
with such transfer shall promptly surrender such certificate to BlackRock
and shall be entitled to receive a certificate representing the shares of
Class A Common Stock issuable upon conversion of the shares of Class B
Common Stock. Each holder of this certificate, by accepting the same,
accepts and agrees to all of the foregoing.".
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 informa
tion made available to holders of Class A Common Stock.
24
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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