UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

Pursuant to Section 13 OR 15(d) of

The Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): October 5, 2006 (September 29, 2006)

 

BlackRock, Inc.

(Exact name of registrant as specified in its charter)

 

 

DELAWARE     32-0174431

(State or other jurisdiction

of incorporation)

  (Commission File Number)  

(IRS Employer

Identification No.)

 

40 East 52 nd Street, New York, New York   10022
(Address of principal executive offices)   (Zip Code)

Registrant’s telephone number, including area code: (212) 810-5300

New BlackRock, Inc.

(Former name or former address, if changed since last report.)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Item 1.01 Entry into Material Definitive Agreements

The information set forth under Item 2.03 below is incorporated herein by reference.

The forms of Stock Option Agreement, Restricted Stock Agreement, Restricted Stock Unit Agreement, and Directors’ Restricted Stock Unit Agreement that the registrant intends to use to make such respective types of grants under the BlackRock, Inc. 1999 Stock Award and Incentive Plan are attached hereto as Exhibits 10.5, 10.6, 10.7, and 10.8, respectively, and incorporated herein by reference. The information set forth in Item 5.02 with respect to the employment arrangements with Robert C. Doll is incorporated herein by reference.

Item 2.01 Completion of Acquisition or Disposition of Assets

On September 29, 2006, pursuant to the terms and subject to the conditions set forth in the Transaction Agreement and Plan of Merger (the “Transaction Agreement”), dated as of February 15, 2006, by and among the registrant (formerly known as New Boise, Inc.), BlackRock Merger Sub., Inc. (formerly known as Boise Merger Sub, Inc. “Merger Sub”), BlackRock Holdco 2, Inc. (formerly known as BlackRock, Inc., “Old BlackRock”) and Merrill Lynch & Co., Inc. (“Merrill Lynch”), Merger Sub merged with and into Old BlackRock, with Old BlackRock surviving as a wholly-owned subsidiary of the registrant (the “Merger”), and Merrill Lynch contributed the entities and assets that constitute its investment management business (the “MLIM Business”) to the registrant, via a capital contribution (the “Merrill Contribution”). Subsequent to the Merger, the registrant changed its name to BlackRock, Inc.

At the effective time of the transactions, in consideration for the Merger, the holder of each share of issued and outstanding Old BlackRock class A common stock and class B common stock received one share of common stock, par value $0.01 per share, of the registrant (“Common Stock”), and, in consideration for the Merrill Contribution, Merrill Lynch received 65 million shares of capital stock of the registrant, which was divided between 52,395,082 shares of Common Stock and 12,604,918 shares of series A non-voting participating preferred stock of the registrant (collectively, the “Merrill Consideration”).

The issuance of the registrant’s Common Stock pursuant to the Merger was registered under the Securities Act of 1933, as amended, pursuant to the registrant’s registration statement on Form S-4 (File No. 333-134916) (the “Registration Statement”) filed with the Securities and Exchange Commission (the “SEC”) and declared effective on August 18, 2006. The definitive proxy statement/prospectus dated August 23, 2006 that forms a part of the Registration Statement (the “Proxy Statement/Prospectus”) contains additional information about the Merger and the other transactions contemplated by the Transaction Agreement, including information concerning the interests of directors, executive officers and affiliates of the registrant and Merrill Lynch in the Merger.

Pursuant to Rule 12g-3(a) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), the registrant’s Common Stock is deemed to be registered under Section 12(b) of the Exchange Act. The registrant’s Common Stock has been approved for listing on the New York Stock Exchange, and began trading under the symbol “BLK” on September 29, 2006.

Old BlackRock class A common stock was registered pursuant to Section 12(b) of the Exchange Act and listed on the New York Stock Exchange. Old BlackRock will file a Form 15 with the SEC to terminate the registration under Section 12 of the Exchange Act of the Old BlackRock class A common stock.

On October 2, 2006, the registrant issued a press release announcing the completion of the Merger and the other transactions contemplated by the Transaction Agreement. The press release is attached hereto as Exhibit 99.1 and incorporated herein by reference.

Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant

On September 29, 2006, in connection with the transactions described above under Item 2.01, the registrant entered into the First Supplemental Indenture (the “Supplemental Indenture”) with Old BlackRock and JPMorgan Chase Bank, N.A., as trustee, pursuant to which the registrant agreed to become a co-obligor to the obligations of Old BlackRock under the Indenture, dated as of February 23, 2005 (the “Indenture”), between Old BlackRock and JPMorgan Chase Bank, N.A., as trustee, relating to the 2.625% Convertible Debentures due 2035 (the “Debentures”). The Supplemental Indenture also provides that upon conversion of any Debentures, the holders thereof shall receive Common Stock of the registrant in lieu of class A common stock of Old BlackRock. The Supplemental Indenture is attached hereto as Exhibit 4.1 and incorporated herein by reference.

As of October 5, 2006, the current outstanding principal amount of indebtedness under the Indenture is $250,000,000. The terms of the Indenture, as supplemented, provide that the Debentures will bear interest at a rate of 2.625% per annum. Prior to February 15, 2009, the Debentures will be convertible, only under certain conditions, at the option of the holder into cash and, in certain circumstances, shares of the registrant’s Common Stock at a conversion rate of 9.7540 shares of Common Stock per $1,000 principal amount of Debentures as of September 29, 2006, subject to adjustments. On and after February 15, 2009, the Debentures will be convertible at any time prior to maturity at the option of the holder into cash and, in certain circumstances, shares of Common Stock at the above conversion rate, subject to adjustments.

Beginning February 20, 2010, any of the Debentures may be redeemed at a redemption price of 100% of their principal amount, plus accrued and unpaid interest, including contingent interest and accrued and unpaid liquidated damages, if any. Holders may require that the Debentures be repurchased at a price equal to 100% of their principal amount plus accrued and unpaid interest, including contingent interest and accrued and

unpaid liquidated damages, if any, on February 15, 2010, 2015, 2020, 2025 and 2030, or at any time prior to their maturity upon the occurrence of certain events. The Debentures are senior unsecured debt of both Old BlackRock and the registrant and rank pari passu in right of payment with all existing and any future senior unsecured indebtedness of Old BlackRock and the registrant and are senior in right of payment to any future subordinated indebtedness of Old BlackRock and the registrant. Certain initial purchasers of the Debentures and their direct and indirect transferees are entitled to the benefits of a registration rights agreement dated February 23, 2005. Under the registration rights agreement, the registrant will file a registration statement to cover the resale of the Debentures and the shares of Common Stock issuable upon conversion of the Debentures.

The Indenture is subject to customary events of default, including failure to make required payments, failure to comply with certain agreements or covenants, acceleration of certain other indebtedness, and certain events of bankruptcy and insolvency. Events of default under the Indenture arising from certain events of bankruptcy or insolvency will automatically cause the acceleration of the amounts due under the Debentures. If any other event of default under the Indenture occurs and is continuing, the Trustee (as defined in the Indenture) or the holders of at least 25% in aggregate principal amount of the then outstanding Debentures may declare the acceleration of the amounts due under the Debentures.

The Trustee and its affiliates have provided, or may in the future provide, banking and other services to us in the ordinary course of business.

Item 3.02 Unregistered Sales of Equity Securities

The information set forth under Item 2.01 above is incorporated herein by reference. The description of the transactions pursuant to which Merrill Lynch received the Merrill Consideration described under the headings “Summary,” “The Transactions” and “Transaction Agreement and Plan of Merger” in the Proxy Statement/Prospectus is incorporated herein by reference.

The issuance of the Merrill Consideration is exempt from the registration requirement of the Securities Act of 1933 by virtue of Section 4(2) because the transaction did not involve a public offering.

Item 3.03 Material Modification to Rights of Security Holders

The information set forth under Items 2.01 above and 5.03 below are incorporated herein by reference.

Item 5.02 Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers

In connection with the transactions described above under Item 2.01, effective September 29, 2006, each of Robert C. Doll, Gregory J. Fleming, Robert S. Kapito, Sir Deryck Maughan and E. Stanley O’Neal was elected to the registrant’s board of directors. Sir Deryck will serve on the Management Development and Compensation Committee. Mr. Fleming will serve on the Executive Committee.

Sir Deryck Maughan (age 58) is a Managing Director of Kohlberg Kravis Roberts and Chairman of KKR Asia. Previously, he served as Vice Chairman of Citigroup (1998-2004), Chairman and Chief Executive Officer of Salomon Brothers (1992-1997) and Chairman and Chief Executive Officer of Salomon Brothers Asia (1986-1991). He also was Vice Chairman of the New York Stock Exchange (1996-2000) and Chairman of the US-Japan Business Council (2002-2004). Prior to joining Salomon Brothers in 1983, he worked at Goldman Sachs (1979-1983). He served in H.M. Treasury (UK Economics and Finance Ministry) from 1969 to 1979. He also currently serves as a Director of GlaxoSmithKline and Reuters.

The registrant and its affiliates and Merrill Lynch and its affiliates have had a variety of brokerage and other dealings since January 1, 2006. The registrant estimates that in the first six months of 2006, the registrant had revenues of approximately $18.2 million and expenses of approximately $6.2 million related to such transactions. The amount and type of these transactions are expected to increase significantly in the remainder of 2006 and thereafter as a result of the completion of the transactions described above under Item 2.01.

The information with respect to Messrs. Doll, Fleming, Kapito and O’Neal described under the heading “Board of Directors and Management of New BlackRock Following Completion of the Transactions” in the Proxy Statement/Prospectus is incorporated herein by reference. Mr. Doll’s employment arrangements with the registrant provide for a base salary of $400,000 and discretionary bonuses and incentive compensation based on a number of performance criteria. Total compensation, including base salary earned at Merrill Lynch, is to be at least $10,750,000 in each of 2006 and 2007 and discretionary thereafter. His arrangements also provide that, subject to approval by the Management Development and Compensation Committee, Mr. Doll will be granted an equity award with an initial value of $15,000,000 with vesting after five years from closing of the transactions. A copy of the letter confirming these arrangements is attached hereto as Exhibit 10.9.

Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

In connection with the transactions described in Item 2.01 above, the registrant amended and restated in their entirety its certificate of incorporation and bylaws substantially in the form included in the Proxy Statement/Prospectus as Annexes D and E (together with technical and conforming amendments thereto). The description of the amended and restated certificate of incorporation and bylaws contained in the Proxy Statement/Prospectus is incorporated herein by reference. The registrant’s Amended and

Restated Certificate of Incorporation and Amended and Restated Bylaws and the Certificate of Designations of the registrant’s Series A Convertible Participating Preferred Stock are attached hereto as Exhibits 3.1, 3.2, and 3.3 respectively, and incorporated herein by reference.

Item 9.01 Financial Statements and Exhibits.

(a) and (b)

Financial Statements required to be filed by this item, will be filed with the Securities and Exchange Commission as soon as practicable, but not later than 71 calendar days after the date on which this Form 8-K is required to be filed.

 

  (d)    Exhibits
2.1      Transaction Agreement and Plan of Merger, dated as of February 15, 2006, by and among Merrill Lynch & Co., Inc., BlackRock, Inc., New Boise, Inc. and Boise Merger Sub, Inc. (incorporated by Reference to Exhibit 2.1 to Old BlackRock’s Current Report on Form 8-K (Commission File No. 001-15305) filed on February 22, 2006)
3.1      Amended and Restated Certificate of Incorporation of the registrant
3.2      Amended and Restated Bylaws of the registrant
3.3      Certificate of Designations of Series A Convertible Participating Preferred Stock of the registrant
4.1      Indenture, dated February 23, 2005 between Old BlackRock and JPMorgan Chase Bank, N.A., as trustee (incorporated by Reference to Old BlackRock’s Annual Report on Form 10-K (Commission File No. 001- 15305) for the year ended December 31, 2004)
4.2      First Supplemental Indenture, dated September 29, 2006
10.1      Implementation and Stockholder Agreement, dated as of February 15, 2006, among The PNC Financial Services Group, Inc., New Boise, Inc. and BlackRock, Inc. (incorporated by Reference to Exhibit 10.1 to Old BlackRock’s Current Report on Form 8-K (Commission File No. 001- 15305) filed on February 22, 2006)
10.2      Stockholder Agreement, dated as of February 15, 2006, between Merrill Lynch & Co., Inc. and New Boise, Inc. (incorporated by Reference to Exhibit 10.2 to Old BlackRock’s Current Report on Form 8-K (Commission File No. 001-15305) filed on February 22, 2006)

10.3      First Amendment, dated as of February 15, 2006, to the Share Surrender Agreement, dated as of October 10, 2002, among PNC Bancorp, Inc., The PNC Financial Services Group, Inc. and BlackRock, Inc. (incorporated by Reference to Exhibit 10.3 to Old BlackRock’s Current Report on Form 8- K (Commission File No. 001-15305) filed on February 22, 2006)
10.4      Registration Rights Agreement, dated as of September 29, 2006, by and among BlackRock, Inc., Merrill Lynch & Co., Inc., and The PNC Financial Service Group, Inc. (incorporated by Reference to Exhibit 4.6 to Old BlackRock’s Registration Statement on Form S-8 (Commission File No. 333-137708) filed on September 29, 2006)
10.5      Form of Stock Option Agreement expected to be used in connection with future grants of Stock Options under the BlackRock, Inc. 1999 Stock Award and Incentive Plan
10.6      Form of Restricted Stock Agreement expected to be used in connection with future grants of Restricted Stock under the BlackRock, Inc. 1999 Stock Award and Incentive Plan
10.7      Form of Restricted Stock Unit Agreement expected to be used in connection with future grants of Restricted Stock under the BlackRock, Inc. 1999 Stock Award and Incentive Plan
10.8      Form of Directors’ Restricted Stock Unit Agreement expected to be used in connection with future grants of Stock Options under the BlackRock, Inc. 1999 Stock Award and Incentive Plan
10.9      Letter to Robert C. Doll
99.1      Press Release, dated October 2, 2006

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

  BlackRock, Inc.
  (Registrant)
  By:  

/s/ Robert P. Connolly

Date: October 5, 2006     Robert P. Connolly
    Managing Director,
    General Counsel and Secretary

EXHIBIT INDEX

 

2.1      Transaction Agreement and Plan of Merger, dated as of February 15, 2006, by and among Merrill Lynch & Co., Inc., BlackRock, Inc., New Boise, Inc. and Boise Merger Sub, Inc. (incorporated by Reference to Exhibit 2.1 to the Registrant’s Current Report on Form 8-K (Commission File No. 001-15305) filed on February 22, 2006)
3.1      Amended and Restated Certificate of Incorporation of the registrant
3.2      Amended and Restated Bylaws of the registrant
3.3      Certificate of Designations of Series A Convertible Participating Preferred Stock of the registrant
4.1      First Supplemental Indenture, dated September 29, 2006
10.1      Implementation and Stockholder Agreement, dated as of February 15, 2006, among The PNC Financial Services Group, Inc., New Boise, Inc. and BlackRock, Inc. (incorporated by Reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K (Commission File No. 001- 15305) filed on February 22, 2006)
10.2      Stockholder Agreement, dated as of February 15, 2006, between Merrill Lynch & Co., Inc. and New Boise, Inc. (incorporated by Reference to Exhibit 10.2 to the Registrant’s Current Report on Form 8-K (Commission File No. 001-15305) filed on February 22, 2006)
10.3      First Amendment, dated as of February 15, 2006, to the Share Surrender Agreement, dated as of October 10, 2002, among PNC Bancorp, Inc., The PNC Financial Services Group, Inc. and BlackRock, Inc. (incorporated by Reference to Exhibit 10.3 to the Registrant’s Current Report on Form 8-K (Commission File No. 001-15305) filed on February 22, 2006)
10.4      Registration Rights Agreement, dated as of September 29, 2006, by and among BlackRock, Inc., Merrill Lynch & Co., Inc., and The PNC Financial Service Group, Inc. (incorporated by Reference to Exhibit 4.6 to the Registrant’s Registration Statement on Form S-8 (Commission File No. 333-137708) filed on September 29, 2006)
10.5      Form of Stock Option Agreement expected to be used in connection with future grants of Stock Options under the BlackRock, Inc. 1999 Stock Award and Incentive Plan

10.6      Form of Restricted Stock Agreement expected to be used in connection with future grants of Restricted Stock under the BlackRock, Inc. 1999 Stock Award and Incentive Plan
10.7      Form of Restricted Stock Unit Agreement expected to be used in connection with future grants of Restricted Stock under the BlackRock, Inc. 1999 Stock Award and Incentive Plan
10.8      Form of Directors’ Restricted Stock Unit Agreement expected to be used in connection with future grants of Stock Options under the BlackRock, Inc. 1999 Stock Award and Incentive Plan
10.9      Letter to Robert C. Doll
99.1      Press Release, dated October 2, 2006

Exhibit 3.1

AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION

OF

NEW BLACKROCK, INC.

New BlackRock, Inc., a Delaware corporation (hereinafter the “ Corporation ”) hereby certifies as follows:

1. The name of the corporation is New BlackRock, Inc. The original certificate of incorporation of the Corporation (the “ Original Certificate of Incorporation ”) was filed with the Secretary of State of the State of Delaware on February 13, 2006 under the name New Boise, Inc.

2. This Amended and Restated Certificate of Incorporation (the “ Certificate of Incorporation ”) amends and restates in its entirety the Corporation’s Original Certificate of Incorporation and has been duly adopted in accordance with Sections 242 and 245 of the General Corporation Law of the State of Delaware (the “ DGCL ”) and by written consent of the stockholders of the Corporation and duly executed and acknowledged by the officers of the Corporation in accordance with Section 103 of the DGCL.

3. The Original Certificate of Incorporation of the Corporation is hereby amended and restated to read in its entirety as follows:

FIRST: The name of the corporation is New BlackRock, Inc.

SECOND: The address of the Corporation’s registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, City of Wilmington, County of New Castle, State of Delaware, and the name of its registered agent at such address is The Corporation Trust Company.

THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware (the “ DGCL ”).

FOURTH: A. Authorized Shares . The Corporation shall be authorized to issue 1,000,000,000 shares of stock, of which (i) 500,000,000 shares shall be shares of Common Stock, par value $0.01 per share (the “ Common Stock ”) and (ii) 500,000,000 shares shall be shares of Preferred Stock, par value $0.01 per share (the “ Preferred Stock ”).

B. Preferred Stock . The Preferred Stock may be issued from time to time in one or more classes or series. The Board of Directors is hereby authorized to provide for the issuance of shares of Preferred Stock in one or more classes or series and, by filing a certificate pursuant to the DGCL (hereinafter

referred to as a “ Preferred Stock Designation ”), to establish from time to time the number of shares to be included in each such class or series, and to fix the designations, voting powers (if any), privileges, preferences and relative, participating, optional or other special rights of the shares of each such class or series and the qualifications, limitations and restrictions thereon. The authority of the Board of Directors with respect to each class or series shall include, but not be limited to, determination of the following:

(1) the designation of the class or series, which may be by distinguishing number, letter or title;

(2) the number of shares of the class or series, which number the Board of Directors may thereafter (except where otherwise provided in the Preferred Stock Designation) increase or decrease (but not below the number of shares thereof then outstanding) in the manner permitted by law;

(3) the rate of any dividends (or method of determining the dividends) payable to the holders of the shares of such class or series, any conditions upon which such dividends shall be paid, the form of payment thereof (whether cash, securities of the Corporation, securities of another person or other assets) and the date or dates or the method for determining the date or dates upon which such dividends shall be payable;

(4) whether dividends, if any, shall be cumulative or noncumulative and, in the case of shares of any class or series having cumulative dividend rights, the date or dates or method of determining the date or dates from which dividends on the shares of such class or series shall cumulate;

(5) if the shares of such class or series may be redeemed by the Corporation, the price or prices (or method of determining such price or prices) at which, the form of payment of such price or prices (which may be cash, property or rights, including securities of the Corporation or of another corporation or other entity) for which, the period or periods within which and the other terms and conditions upon which the shares of such class or series may be redeemed, in whole or in part, at the option of the Corporation or at the option of the holder or holders thereof or upon the happening of a specified event or events, if any, including the obligation, if any, of the Corporation to purchase or redeem shares of such class or series pursuant to a sinking fund or otherwise;

(6) the amount payable out of the assets of the Corporation to the holders of shares of the class or series in the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation;

(7) provisions, if any, for the conversion or exchange of the shares of such class or series, at any time or times, at the option of the holder or holder thereof or at the option of the Corporation or upon the happening of a specified event or events, into shares of any other class or classes or any other series of the same class of capital stock of the Corporation or into any other security of the

 

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Corporation, or into the stock or other securities of any other corporation or other entity, and the price or prices or rate or rates of conversion or exchange and any adjustments applicable thereto, and all other terms and conditions upon which each conversion or exchange may be made;

(8) restrictions on the issuance of shares of the same class or series or of any other class or series of capital stock of the Corporation, if any; and

(9) the voting rights and powers, if any, of the holders of shares of the class or series.

C. Common Stock.

(1) For so long as any Stockholder Agreement shall remain in effect, the Corporation shall recognize the restrictions on transfer contained therein with respect to the parties thereto; provided that in connection with any transfer of any stock of the Corporation pursuant to or as permitted by the Stockholder Agreement, or in connection with the making of any determination referred to therein:

(a) the Corporation shall be under no obligation to make any investigation of facts unless an officer, employee or agent of the Corporation responsible for making such transfer or determination has substantial reason to believe, or unless the Board of Directors (or a committee of the Board of Directors designated for the purpose) determines that there is substantial reason to believe, that any affidavit or other document is incomplete or incorrect in a material respect or that an investigation would disclose facts upon which any determination should be made, in either of which events the Corporation shall make or cause to be made such investigation as it may deem necessary or desirable in the circumstances and have a reasonable time to complete such investigation; and

(b) neither the Corporation nor any director, officer, employee or agent of the Corporation shall be liable in any manner for any action taken or omitted in good faith.

(2) No stockholder shall be entitled to exercise any right of cumulative voting.

FIFTH: A. Stockholder Meetings .

(1) Meetings of stockholders may be held within or without the State of Delaware, as the Bylaws may provide. An annual meeting of the stockholders of the Corporation for the election of directors and for the transaction of such other business as may come before the meeting shall be held at such time and place as shall be determined in accordance with the Bylaws. Elections of directors need not be by written ballot unless otherwise provided in the Bylaws.

 

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(2) Except as otherwise required by law and subject to the rights of the holders of any class or series of stock having a preference over the Common Stock as to dividends or distributions upon liquidation, special meetings of stockholders of the Corporation of any class or series for any purpose or purposes may be called only by:

(a) the Chairman of the Board of Directors;

(b) the President of the Corporation;

(c) a majority of the Board of Directors; or

(d) any committee of the Board of Directors the powers and authority of which include the power and authority to call such meetings.

B. Action by Written Consent. Any action required or permitted to be taken at any annual or special meeting of the stockholders may be effected by written consent of such stockholders pursuant to Section 228 of the DGCL if such action has been approved in advance by the requisite vote of the Board of Directors.

SIXTH: A. Powers of the Board of Directors . The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors, which shall be constituted as provided in this Article and as provided by law.

B. Number of Directors . The Board of Directors shall initially consist of 17 directors, which number of directors may be increased or decreased from time to time pursuant to a resolution adopted by the affirmative vote of a majority of the entire Board of Directors, subject to the provisions of the Bylaws and any Stockholder Agreement.

C. Classes, Election and Term . The Board of Directors shall be divided into three classes, designated Class I, Class II and Class III. Each class shall consist, as nearly as may be possible, of one-third of the total number of directors constituting the entire Board of Directors. Class I directors shall be elected initially for a one-year term, Class II directors initially for a two-year term and Class III directors initially for a three-year term. At each succeeding annual meeting of stockholders beginning in 2007, successors to the class of directors whose term expires at that annual meeting shall be elected for a three-year term. If the number of directors is changed, any increase or decrease shall be apportioned among the classes so as to maintain the number of directors in each class as nearly equal as possible, but in no case shall a decrease in the number of directors shorten the term of any incumbent director. A director shall hold office until the annual meeting of the year in which his term expires and until his successor shall be elected and shall qualify, subject, however, to prior death, resignation or removal from office.

 

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D. Removal of Directors . Except as may be provided in a resolution or resolutions providing for any class or series of Preferred Stock with respect to any directors elected by the holders of such class or series, any director, or the entire Board of Directors, may be removed from office at any time, only for cause (as defined by the Corporation’s Bylaws), by the affirmative vote of the holders of at least eighty percent (80%) of the votes entitled to be cast by the Voting Stock.

E. Meetings of the Board of Directors . Meetings of the Board of Directors may be held within or without the State of Delaware, as the Bylaws may provide.

F. Quorum; Required Vote

G. Except as otherwise provided by law or any Stockholder Agreement, but only until the termination of such Stockholder Agreement in accordance with its terms:

(1) at all meetings of the Board of Directors, a majority of the entire Board of Directors shall constitute a quorum for the transaction of business, and

(2) the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board of Directors.

SEVENTH: A. Liability . A director of the Corporation shall, to the maximum extent permitted by the laws of the State of Delaware, as now or hereafter in effect, have no personal liability to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director.

B. Indemnification .

(1) The Corporation shall indemnify its directors and officers to the fullest extent authorized or permitted by law, as now or hereafter in effect and such right to indemnification shall continue as to a person who has ceased to be a director or officer of the Corporation and shall inure to the benefit of his or her heirs, executors and personal and legal representatives; provided, however , that, except for proceedings to enforce rights to indemnification, the Corporation shall not be obligated to indemnify any director or officer (or his or her heirs, executors or personal or legal representatives) in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized or consented to by the Board of Directors. The right to indemnification conferred by this Article SEVENTH shall include the right to be paid by the Corporation the expenses incurred in defending or otherwise participating in any proceeding in advance of its final disposition.

(2) The Corporation may, to the extent authorized from time to time by the Board of Directors, provide rights to indemnification and to the

 

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advancement of expenses to employees and agents of the Corporation similar to those conferred in this Article SEVENTH to directors and officers of the Corporation.

(3) The rights to indemnification and to the advance of expenses conferred in this Article SEVENTH shall not be exclusive of any other right which any person may have or hereafter acquire under this Certificate of Incorporation, the Bylaws of the Corporation, any statute, agreement, vote of stockholders or disinterested directors or otherwise.

C. Modification .

(1) Any repeal or modification of this Article SEVENTH by the stockholders of the Corporation shall not adversely affect any exclusion of liability, rights to indemnification and to the advancement of expenses or other protection of a director, officer, employee or agent of the Corporation existing at the time of such repeal or modification with respect to any acts or omissions occurring prior to such repeal or modification.

(2) Any repeal or modification of the laws of the State of Delaware, as are now or hereafter in effect, shall not adversely affect any rights to indemnification and to the advancement of expenses or other protection of a director, officer, employee or agent of the Corporation existing at the time of such repeal or modification with respect to any acts or omissions occurring prior to such repeal or modification.

EIGHTH: The Corporation shall be subject to Section 203 of the DGCL.

NINTH: A. Certain Acknowledgments . The provisions of this Article NINTH shall regulate and define the conduct of certain of the business and affairs of the Corporation in relation to any Significant Stockholder and Affiliated Companies (as defined below in this Article NINTH) thereof, in recognition and anticipation that:

(1) one or more Significant Stockholder will be a significant stockholder of the Corporation;

(2) the directors, officers and/or employees of Significant Stockholders or of Affiliated Companies thereof may serve as directors of the Corporation;

(3) Significant Stockholders and the Affiliated Companies thereof engage, are expected to continue to engage, and may in the future engage in the same, similar or related lines of business as those in which the Corporation, directly or indirectly, may engage and/or other business activities than overlap with or compete with those in which the Corporation, directly or indirectly, may engage;

 

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(4) the Corporation and Affiliated Companies thereof will or may engage in material business transactions with a Significant Stockholder and Affiliated Companies thereof; and

(5) as a consequence of the foregoing, it is in the best interests of the Corporation that the respective rights and duties of the Corporation, any Significant Stockholder and the Affiliated Companies of each, and the duties of any directors or officers of the Corporation who are also directors, officers or employees of the Significant Stockholder or Affiliated Companies thereof, be determined and delineated in respect of any agreements, arrangements or transactions between, or opportunities that may be suitable for both, the Corporation and Affiliated Companies thereof, on the one hand, and the Significant Stockholder and Affiliated Companies thereof, on the other hand.

Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Article NINTH.

The provisions of this Article NINTH are in addition to, and not in limitation of, the provisions of the DGCL and the other provisions of this Certificate of Incorporation. Any agreement, arrangement, transaction or business relationship which does not comply with the procedures set forth in this Article NINTH shall not by reason thereof be deemed void or voidable or result in any breach of any fiduciary duty or duty of loyalty or failure to act in good faith or in the best interests of the Corporation or derivation of any improper personal benefit, but shall be governed by the provisions of this Certificate of Incorporation, the Bylaws, the DGCL and other applicable law,

B. Certain Agreements, Arrangements and Transactions Permitted; Certain Fiduciary Duties of Certain Stockholders, Directors and Officers. The Corporation may from time to time enter into and perform, and cause or permit any Affiliated Company of the Corporation to enter into and perform, one or more agreements (or modifications or supplements to pre-existing agreements), arrangements or transactions with a Significant Stockholder or Affiliated Companies thereof pursuant to which the Corporation or an Affiliated Company thereof, on the one hand, and the Significant Stockholder or an Affiliated Company thereof, on the other hand, agree to or do engage in transactions of any kind or nature with each other or with Affiliated Companies thereof and/or agree to or do compete, or refrain from competing or limit or restrict their competition, with each other, including allocating and causing their respective directors, officers and employees (including any who are directors, officers or employees of both) to allocate opportunities between or to refer opportunities to each other. No such agreement, arrangement or transaction shall be considered void or voidable solely (i) due to the nature of the parties thereto or due to the existence of circumstances as described in paragraph (A) of this Article NINTH or (ii) because any one or more of the officers or directors of the Corporation who are also directors or officers of the Significant Stockholder or any Affiliated Companies thereof are present at or participate in the meeting of the Board of Directors or committee thereof which authorizes the agreement, arrangement or transaction, or solely

 

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because his or their votes are counted for such purpose. No such agreement, arrangement or transaction or the performance thereof by the Corporation or the Significant Stockholder or any Affiliated Company thereof shall be considered (i) contrary to any fiduciary duty or duty of loyalty that the Significant Stockholder or any Affiliated Company thereof may owe to the Corporation or any Affiliated Company thereof or to any stockholder or other owner of an equity interest in the Corporation by reason of the Significant Stockholder or any Affiliated Company thereof being a Significant Stockholder of the Corporation or participating in control of the Corporation or any Affiliated Company thereof or (ii) contrary to any fiduciary duty or duty of loyalty of any director or officer of the Corporation who is also a director, officer or employee of the Significant Stockholder or any Affiliated Company thereof to the Corporation or such Affiliated Company or any stockholder or other owner of an equity interest therein. In addition, with respect to any such agreement, arrangement or transaction, the directors and officers of the Corporation who are also directors and officers of the Significant Stockholder or any Affiliated Company thereof (i) shall have fully satisfied their fiduciary duties to the Corporation and the stockholders, (ii) shall be deemed to have acted in good faith and in a manner such persons reasonably believe to be in and not opposed to the best interests of the Corporation and (iii) shall be deemed not to have breached their duties of loyalty to the Corporation and its stockholders and not to have derived an improper personal benefit therefrom, if such agreement, arrangement or transaction shall have been approved in accordance with the terms of any Stockholder Agreement to which such Significant Stockholder is a party.

Neither a Significant Stockholder, as a stockholder of the Corporation, nor any Affiliated Company thereof, shall have or be under any fiduciary duty or duty of loyalty to refrain from entering into any agreement or participating in any agreement, arrangement or transaction that meets the requirements of this paragraph (B) and no director of the Corporation who is also a director, officer or employee of the Significant Stockholder or any Affiliated Company thereof shall have or be under any fiduciary duty or duty of loyalty to the Corporation to refrain from acting on behalf of the Corporation or any Affiliated Company thereof in respect of any such agreement, arrangement or transaction or performing any such agreement, arrangement or transaction in accordance with its terms. The failure of any agreement, arrangement or transaction between the Corporation or an Affiliated Company thereof, on the one hand, and the Significant Stockholder or an Affiliated Company thereof, on the other hand, to satisfy the requirements of this Article NINTH shall not, by itself, cause such agreement, arrangement or transaction to constitute any breach of any fiduciary duty or duty of loyalty to the Corporation or to any Affiliated Company thereof, or to any stockholder or other owner of an equity interest therein, by the Significant Stockholder or such Affiliated Company thereof or by any director or officer of the Corporation, the Significant Stockholder or any of their respective Affiliated Companies.

For purposes of this Article NINTH, any agreement, arrangement or transaction with any corporation, partnership, joint venture, association or other entity in which the Corporation owns (directly or indirectly) fifty percent or more of the outstanding voting stock, voting power, partnership interests or similar ownership interests, or with any officer or director thereof, shall be deemed to be an agreement, arrangement or transaction with the Corporation.

 

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C. Corporate Opportunities .

(1) A Significant Stockholder and its Affiliated Companies shall have no fiduciary duty, duty of loyalty or other duty not to (i) engage in the same or similar activities or lines of business as the Corporation, (ii) do business with any client or customer of the Corporation or (iii) employ or otherwise engage any officer or employee of the Corporation, and none of the Significant Stockholder nor its Affiliated Companies nor any officer or director thereof shall be liable to the Corporation or its stockholders or other owner of an equity interest therein for breach of any fiduciary duty or duty of loyalty by reason of any such activities of the Significant Stockholder or any Affiliated Company thereof or of such person’s participation therein. In the event that a Significant Stockholder or any Affiliated Company thereof acquires knowledge of a potential transaction or matter which may be a corporate opportunity for both the Significant Stockholder or any Affiliated Company thereof and the Corporation, neither the Significant Stockholder nor its Affiliated Companies nor any officer or director thereof (even if such officer or director is also an officer or director of the Corporation) shall have any duty to communicate or present such corporate opportunity to the Corporation and shall not be liable to the Corporation or its stockholders or other owner of an equity interest therein for breach of any fiduciary or duty of loyalty by reason of the fact that the Significant Stockholder or any Affiliated Company thereof pursues or acquires such corporate opportunity for itself or the Significant Stockholder or any of its Affiliated Companies or any officer or director thereof (even if such officer or director is also an officer or director of the Corporation) directs such corporate opportunity to another person or does not present such corporate opportunity to the Corporation.

(2) For the purposes of this Article NINTH, “corporate opportunities” shall include, but not be limited to, business opportunities which the Corporation is financially able to undertake, which are, from their nature, in the line of the Corporation’s business, are of practical advantage to it and are ones in which the Corporation has an interest or a reasonable expectancy, and in which, by embracing the opportunities, the self-interest of a Significant Stockholder or any Affiliated Company or its officers or directors, will be brought into conflict with that of the Corporation.

(3) If any agreement, arrangement or transaction between the Corporation and a Significant Stockholder and any Affiliated Company involves a corporate opportunity and is approved in accordance with the procedures set forth in paragraph (B) of this Article NINTH, the officers and directors of the Corporation, the Significant Stockholder and any Affiliated Company and their officers and directors shall (even if such officers and directors are also directors of the Corporation) also for the purposes of this Article NINTH and the other provisions of this Certificate of Incorporation and the provisions of the By-laws (a) have fully satisfied and fulfilled their fiduciary duties to the Corporation and its stockholders or other owner of an equity interest therein, (b) be deemed to have acted in good faith and in a manner such persons reasonably believe to be in and not opposed to the best interests of the Corporation and (c) be deemed not to have breathed their duties of loyalty to the Corporation and its stockholders or other owner of an equity interest therein and

 

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not to have derived an improper personal benefit therefrom. Any such agreement, arrangement or transaction involving a corporate opportunity not so approved shall not by reason thereof result in any such breach of any fiduciary duty or duty of loyalty or failure to act in good faith or in the best interests of the Corporation or derivation of any improper personal benefit, but shall be governed by the other provisions of this Article NINTH, this Certificate of Incorporation, the Bylaws, the DGCL and other applicable law.

D. Modification . No alteration, amendment or repeal of any provision of this Article NINTH shall terminate the effect of such provisions or eliminate or reduce the effect of this Article NINTH in respect of any matter occurring, or any cause of action, suit or claim that, but for this Article NINTH, would accrue or arise, prior to such alteration, amendment or repeal.

E. For purposes of this Article NINTH, “ Affiliated Company ” shall mean in respect of any Significant Stockholder any company which controls, is controlled by or is under common control with such Significant Stockholder (other than the Corporation and any company that is controlled by the Corporation) and in respect of the Corporation shall mean any company controlled by the Corporation.

TENTH: The books of the Corporation may be kept (subject to any provision contained in the DGCL or other applicable statutes) outside the State of Delaware at such place or places as may be designated from time to time by the Board of Directors or in the Bylaws of the Corporation.

ELEVENTH: Whenever a compromise or arrangement is proposed between the Corporation and its creditors or any class of them and/or between the Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, in a summary way, on the application of the Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for the Corporation under the provisions of Section 291 of the DGCL or on the application of trustees in dissolution or of any receiver or receivers appointed for the Corporation under the provisions of Section 279 of the DGCL, order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of the Corporation, as the case maybe, to be summoned in such manner as said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of the Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of the Corporation as a consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of the Corporation, as the case may be, and also on the Corporation.

TWELFTH: Bylaw Amendments . The Bylaws of the Corporation may be adopted, consistent with law and the provisions of this Certificate of

 

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Incorporation (including any Preferred Stock Designation), and once adopted, any Bylaw may be altered or repealed by: (1) the affirmative vote of at least a majority of the members of the Board of Directors then in office, or (2) the affirmative vote of at least a majority of the voting power of the Voting Stock, provided that any adoption, alteration or repeal of a Bylaw by the Board of Directors, if such adoption, alteration or repeal would be inconsistent with the provisions of any Stockholder Agreement, shall require such approval, if any, as shall be required by the terms of such Stockholder Agreement.

THIRTEENTH:

A. General Right to Amend Certificate of Incorporation .

(1) Subject to the provisions of any Stockholder Agreement, the Corporation hereby reserves the right at any time and from time to time to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, and to add thereto any other provision authorized by the laws of the state of Delaware at the time in force, and except as may otherwise be explicitly provided by any provision of this Certificate of Incorporation, all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or officers of the Corporation or any other person whomsoever by and pursuant to this Certificate of Incorporation in its present form, or as hereafter amended, are granted subject to the right reserved in this paragraph (A)(1).

(2) Subject to the provisions of paragraph (B) below, the provisions of any Stockholder Agreement and the rights of the holders of Preferred Stock, the provisions of this Certificate of Incorporation may only be altered, amended or repealed, and any inconsistent provision adopted, with such action (if any) of the Board of Directors as is provided by law, and in addition to any other vote of stockholders (if any) required by law, and notwithstanding that a lower vote (or a no vote) of stockholders otherwise would be required, by the approval of at least a majority of the voting power of all Voting Stock; provided, however, that the provisions of Articles NINTH and TWELFTH may be amended only with the approval of at least eight percent (80%) of the voting power of all Voting Stock.

B. Amendment of this Article . Subject to the provisions of any Stockholder Agreement, the affirmative vote of the holders of at least seventy-five percent (75%) of the voting power of all Voting Stock shall be required to alter, amend or repeal, or to adopt any provision inconsistent with, this Article THIRTEENTH.

FOURTEENTH: The Corporation shall have perpetual existence.

 

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FIFTEENTH: For purposes of this Certificate of Incorporation, the following definitions shall apply:

(1) “ Affiliate ” means, with respect to any Person, any other Person that directly, or indirectly through one or more intermediaries, controls, is controlled by or is under common control with, such specified Person; provided , however , that neither the Corporation nor any of its Controlled Affiliates shall be deemed to be a Subsidiary or Affiliate of any Person who is or becomes a party to a Stockholder Agreement solely by virtue of the Beneficial Ownership by such Person of Capital Stock, the election of Directors nominated by such Person to the Board, the election of any other Directors nominated by the Board or any other action taken by such Person which is expressly permitted under a Stockholder Agreement, in each case in accordance with the terms and conditions of, and subject to the limitations and restrictions set forth on such Person in, such Stockholder Agreement (and irrespective of the characteristics of the aforesaid relationships and actions under applicable law or accounting principles)

(2) “ Beneficial Ownership ” by a Person of any securities includes ownership by any Person who, directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, has or shares (i) voting power which includes the power to vote, or to direct the voting of, such security; and/or (ii) investment power which includes the power to dispose, or to direct the disposition, of such security; and shall otherwise be interpreted in accordance with the term “beneficial ownership” as defined in Rule 13d-3 adopted by the Commission under the Securities Exchange Act of 1934, as amended; provided that for purposes of determining Beneficial Ownership, a Person shall be deemed to be the Beneficial Owner of any securities which may be acquired by such Person pursuant to any agreement, arrangement or understanding or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise (irrespective of whether the right to acquire such securities is exercisable immediately or only after the passage of time, including the passage of time in excess of 60 days, the satisfaction of any conditions, the occurrence of any event or any combination of the foregoing), except that in no event will any Person who is or becomes a party to a Stockholder Agreement be deemed to Beneficially Own any securities which it has the right to acquire pursuant to any Stockholder Agreement unless, and then only to the extent that, it shall have actually exercised such right. For purposes of this Agreement, a Person shall be deemed to Beneficially Own any securities Beneficially Owned by its Affiliates (including as Affiliates for this purpose its officers and directors only to the extent they would be Affiliates solely by reason of their equity interest) or any Group of which such Person or any such Affiliate is or becomes a member; provided , however , that securities Beneficially Owned by any Person shall not include any Voting Securities or other securities held by such Person and its Controlled Affiliates in trust, managed, brokerage, custodial, nominee or other customer accounts; in trading, inventory, lending or similar accounts of such Person and Controlled Affiliates of such Person which are broker-dealers or otherwise engaged in the securities business; or in pooled investment vehicles sponsored, managed and/or advised or subadvised by such Person and its Controlled Affiliates except, if they Beneficially Own more than 25% of the ownership interests in a pooled investment vehicle, to the extent of their ownership interests therein; provided that in each case, such securities were acquired in the ordinary course of business of their securities business and not with the intent or purpose of influencing control of the Corporation or avoiding the provisions hereof or

 

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of any Stockholder Agreement. The term “ Beneficially Own ” shall have a correlative meaning.

(3) “ Capital Stock ” means any and all shares (however designated, whether voting or non-voting) of capital stock issued by the Corporation.

(4) “ control ” (including the terms “controlled by” and “under common control with”), with respect to the relationship between or among two or more Persons, means the possession, directly or indirectly, of the power to direct or cause the direction of the affairs or management of a Person, whether through the ownership of voting securities, as trustee or executor, by contract or any other means, or otherwise to control such Person within the meaning of such term as used in Rule 405 under the Securities Act of 1933, as amended. For purposes of this definition, a general partner or managing member of a Person shall always be considered to control such Person provided , however , that a Person shall not be treated as having any control over any collective investment vehicle to which it provides services unless it or an Affiliate has a proprietary economic interest exceeding 25% of the equity interest in such collective investment vehicle.

(5) “ Controlled Affiliate ” of any Person means a Person that is directly or indirectly controlled by such other Person.

(6) each reference to a “ person ” shall be deemed to include not only a natural person, but also a corporation, partnership, joint venture, association or legal entity of any kind; each reference to a “natural person” (or to a “record holder” of shares, if a natural person) shall be deemed to include, in his, her or its representative capacity, a guardian, committee, executor, administrator or other legal representative of such natural person or record holder;

(7) “ Significant Stockholder ” shall mean a person who is a party to a Stockholder Agreement and who Beneficially Owns more than twenty percent (20%) of the Voting Stock.

(8) “ Stockholder Agreement ” shall mean any agreement to which the Corporation and a holder of Capital Stock is a party that is in effect on the date of issuance of the initial shares of Series A Participating Preferred Stock of the Corporation and that relates to the voting of shares of capital stock by such holder;

(9) “ Subsidiary ” shall mean, as to any person or entity, a corporation, part ownership, joint venture, association or other entity in which such person or entity beneficially owns (directly or indirectly) fifty percent (50%) or more of the Voting Stock or outstanding voting power, partnership interests or similar voting interests; and

(10) “ Voting Stock ” shall mean the then outstanding shares of Capital Stock of the Corporation entitled to vote generally on the election of directors and shall exclude any class or series of capital stock of the Corporation only entitled to vote in the event of dividend arrearages or any default under any provision of such series thereon, whether or not at the time of determination there are any such dividend arrearages or defaults.

 

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IN WITNESS WHEREOF, this Certificate of Incorporation which restates, integrate and amends the provisions of the Original Certificate of Incorporation of the Corporation, and which has been duly adopted in accordance with Sections 242 and 245 of the General Corporation Law of the State of Delaware, has been executed by an authorized officer of the Corporation this 27 th day of September, 2006.

 

NEW BLACKROCK, INC.
By:   /s/ Daniel Waltcher
  Name:   Daniel Waltcher
  Title:  

Managing Director and

Deputy General Counsel

 

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Exhibit 3.2

AMENDED AND RESTATED BYLAWS OF

NEW BLACKROCK, INC.

a Delaware Corporation

ARTICLE I

OFFICES

Section 1.1 Registered Office .

The registered office of New BlackRock, Inc. (hereinafter called the “Corporation”) within the State of Delaware shall be at Corporation Trust Center, 1209 Orange Street, City of Wilmington, County of New Castle, State of Delaware 19801, and the name of the registered agent of the Corporation at such address shall be The Corporation Trust Company.

Section 1.2 Other Offices .

The Corporation may also have offices at such other places, both within and without the State of Delaware, as the Board of Directors from time to time shall determine or the business of the Corporation may require.

Section 1.3 Books and Records .

The books and records of the Corporation may be kept outside the State of Delaware at such place or places as may from time to time be designated by the Board of Directors or officers.

Section 1.4 Certain Definitions .

Except where otherwise explicitly provided, all references herein to the “Certificate of Incorporation” shall mean the certificate of incorporation of the Corporation as from time to time amended or restated and in effect including any certificates of designation (each a “Preferred Stock Designation”) filed under section 151(g) (or any successor provision) of the General Corporation Law of the State of Delaware, as amended and in effect from time to time (the “DGCL”). In the event of any amendment of these Bylaws that does not involve a complete restatement thereof, any reference herein to “the Bylaws” or “these Bylaws” or “herein” or “hereof” or a like reference shall refer to these Bylaws as so amended. Defined terms used herein and not otherwise defined shall have the meanings ascribed to them in the Certificate of Incorporation.

ARTICLE II

MEETINGS OF STOCKHOLDERS

Section 2.1 Place of Meetings .

All meetings of the stockholders shall be held at any such place, either within or without the State of Delaware, as shall be designated from time to time by the Board of Directors and stated in the notice of meeting or in a duly executed waiver thereof.

Section 2.2 Annual Meeting .

The annual meeting of the stockholders for the election of directors and for the transaction of such other business as may come before the meeting shall be held at such time and place as shall be determined by the Board of Directors and stated in the notice of the meeting.

Only such business may be conducted as has been brought before an annual meeting of stockholders by, or at the direction of, the Board of Directors, or by a stockholder who has given timely written notice to the Secretary of the Corporation of such stockholder’s intention to bring such business before the meeting pursuant to Section 2.10 of these Bylaws.

Section 2.3 Special Meetings .

Special meetings may be called in accordance with the Certificate of Incorporation. The power of any stockholder to call a special meeting is specifically denied. The only business which may be conducted at a special meeting, other than procedural matters and matters relating to the conduct of the meeting, shall be the matter or matters described in the notice of such meeting.

Section 2.4 Adjournments.

Any meeting of the stockholders may be adjourned from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting, the Corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

Section 2.5 Notice of Meetings .

Notice of meetings of stockholders shall be given by the Corporation as required by applicable law not less than ten days nor more than sixty days before such meeting (unless a different time is specified by law) to every stockholder entitled by law to notice of such meeting. Notice of any such meeting need not be given to any stockholder who shall, either before or after the meeting, submit a signed waiver of notice or who shall attend such meeting, except when he shall attend for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened.

Section 2.6 List of Stockholders .

A complete list of the stockholders entitled to vote at any meeting of stockholders, arranged in alphabetical order, and showing the address of each stockholder and the number of shares of each class of capital stock of the Corporation registered in the name of each stockholder, shall be prepared by the Secretary and shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held, for at least ten days before the meeting and at the place of the meeting during the whole time of the meeting. The stock ledger of the Corporation shall be the only evidence as to who are the stockholders entitled to examine the stock ledger and the list required by this Section 2.6 or to vote in person or by proxy at any meeting of stockholders.

Section 2.7 Quorum .

Unless otherwise required by law or the Certificate of Incorporation, a majority in voting power of the outstanding shares of the Corporation entitled to vote on the matters at issue, present in person or represented by proxy, shall constitute a quorum. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the

 

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meeting from time to time, in the manner provided in Section 2.4, until a quorum shall be present or represented. A quorum, once established, shall not be broken by the subsequent withdrawal of enough votes to leave less than a quorum. At any such adjourned meeting at which there is a quorum, any business may be transacted that might have been transacted at the meeting originally called.

Section 2.8 Conduct of Meetings .

The Board of Directors of the Corporation may adopt by resolution such rules and regulations for the conduct of the meeting of the stockholders as it shall deem appropriate. At every meeting of stockholders, the Chairman of the Board of Directors, or in his absence or inability to act, the Chief Executive Officer, or, in his absence or inability to act, the person whom the Vice Chairman shall appoint, shall act as chairman of, and preside at, the meeting. The Secretary or, in his absence or inability to act, the person whom the chairman of the meeting shall appoint secretary of the meeting, shall act as secretary of the meeting and keep the minutes thereof. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the chairman of any meeting of the stockholders shall have the right and authority to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such chairman, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the chairman of the meeting, may include, without limitation, the following: (a) the establishment of an agenda or order of business for the meeting; (b) the determination of when the polls shall open and close for any given matter to be voted on at the meeting; (c) rules and procedures for maintaining order at the meeting and the safety of those present; (d) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the chairman of the meeting shall determine; (e) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (f) limitations on the time allotted to questions or comments by participants.

Section 2.9 Nomination of Directors .

(a) Only persons who are nominated in accordance with the procedures in this Section 2.9 shall be eligible for election as directors of the Corporation, subject to the rights of the holders of Preferred Stock. Nominations of persons for election to the Board of Directors may be made at any annual meeting of stockholders (i) by or at the direction of the Board of Directors (or any duly authorized committee thereof) or (ii) by any stockholder of the Corporation (A) who is a stockholder of record on the date of the giving of the notice provided for in this Section 2.9 and on the record date for the determination of stockholders entitled to vote at such annual meeting and (B) who complies with the notice procedures set forth in this Section 2.9.

(b) In addition to any other applicable requirements, for a nomination to be made by a stockholder, such stockholder must have given timely notice thereof in proper written form to the Secretary of the Corporation, except as provided in a Stockholder Agreement.

(c) Except as provided in a Stockholder Agreement, to be timely, a stockholder’s notice to the Secretary must be delivered to or mailed and received at the principal executive offices of the Corporation not less than one hundred twenty (120) days nor more than one hundred fifty (150) days prior to the anniversary of the mailing date of the Corporation’s proxy materials for the immediately preceding annual meeting of stockholders; provided, however, that in the event that the annual meeting is called for a date that is not within thirty (30) days before or after the anniversary date of such meeting, notice by the stockholder in order to be timely must be so received not later than the close of business on the tenth (10th) day following the day on which notice of the date of the annual meeting was mailed to stockholders or public disclosure of the date of the annual meeting was made, whichever first occurs.

 

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(d) To be in proper written form, a stockholder’s notice to the Secretary must set forth: (i) as to each person whom the stockholder proposes to nominate for election as a director (A) the name, age, business address and residence address of such person, (B) the principal occupation or employment of such person, (C) the class or series and number of shares of capital stock of the Corporation which are owned beneficially or of record by such person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors pursuant to Section 14 of the Securities Exchange Act of 1934, as amended (“Exchange Act”) and the rules and regulations promulgated thereunder; and (ii) as to the stockholder giving the notice (A) the name and record address of such stockholder, (B) the class or series and number of shares of capital stock of the Corporation which are owned beneficially or of record by such stockholder, (C) a description of all arrangements or understandings between such stockholder and each proposed nominee and any other person or persons (including their names) pursuant to which the nomination(s) are to be made by such stockholder, (D) a representation that such stockholder intends to appear in person or by proxy at the annual meeting to nominate the persons named in its notice and (E) any other information relating to such stockholder that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder. Such notice must be accompanied by a written consent of each proposed nominee to being named as a nominee and to serve as a director if elected.

(e) If the chairman of the annual meeting determines that a nomination was not made in accordance with the foregoing procedures, the chairman shall declare to the meeting that the nomination was defective and such defective nomination shall be disregarded.

(f) The Corporation’s Nominating and Governance Committee (or, if there is no such committee, the Board of Directors or any other duly authorized committee thereof) shall nominate for election to the Board of Directors (i) any person that is designated as a nominee for the Board of Directors pursuant to any Stockholder Agreement. Notwithstanding any other provision contained herein, no stockholder may make any nominations pursuant to Section 2.9(a)-(d) if such stockholder designated any person or persons for nomination pursuant to any Stockholder Agreement and, pursuant to this Section 2.9(f), the Nominating and Governance Committee (or, if there is no such committee, the Board of Directors or any other duly authorized committee thereof) shall have nominated such person or persons.

Section 2.10 Business at Annual Meetings .

(a) No business may be transacted at an annual meeting of stockholders, other than business that is either (i) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board of Directors (or any duly authorized committee thereof), (ii) otherwise properly brought before the annual meeting by or at the direction of the Board of Directors (or any duly authorized committee thereof) or (iii) otherwise properly brought before the annual meeting by any stockholder of the Corporation (A) who is a stockholder of record on the date of the giving of the notice provided for in this Section 2.10 and on the record date for the determination of stockholders entitled to vote at such annual meeting and (B) who complies with the notice procedures set forth in this Section 2.10.

(b) In addition to any other applicable requirements, for business to be properly brought before an annual meeting by a stockholder, such stockholder must have given timely notice thereof in proper written form to the Secretary of the Corporation.

 

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(c) To be timely, a stockholder’s notice to the Secretary must be delivered to or mailed and received at the principal executive offices of the Corporation not less than one hundred twenty (120) days nor more than one hundred fifty (150) days prior to the anniversary of the mailing date of the Corporation’s proxy materials for the immediately preceding annual meeting of stockholders; provided, however that in the event that the annual meeting is called for a date that is not within thirty (30) days before or after the anniversary date of such meeting, notice by the stockholder in order to be timely must be so received not later than the close of business on the tenth (10th) day following the day on which notice of the date of the annual meeting was mailed to stockholders or public disclosure of the date of the annual meeting was made, whichever first occurs.

(d) To be in proper written form, a stockholder’s notice to the Secretary must set forth as to each matter such stockholder proposes to bring before the annual meeting (i) a brief description of the business desired to be brought before the annual meeting and the reasons for conducting such business at the annual meeting, (ii) the name and record address of such stockholder, (iii) the class or series and number of shares of capital stock of the Corporation which are owned beneficially or of record by such stockholder, (iv) a description of all arrangements or understandings between such stockholder and any other person or persons (including their names) in connection with the proposal of such business by such stockholder and any material interest of such stockholder in such business and (v) a representation that such stockholder intends to appear in person or by proxy at the annual meeting to bring such business before the meeting.

(e) Once business has been properly brought before the annual meeting in accordance with such procedures, nothing in this Section 2.10 shall be deemed to preclude discussion by any stockholder of any such business. If the chairman of an annual meeting determines that business was not properly brought before the annual meeting in accordance with the foregoing procedures, the Chairman shall declare to the meeting that the business was not properly brought before the meeting and such business shall not be transacted.

Section 2.11 Voting .

Unless otherwise required by law, the Certificate of Incorporation or these Bylaws, any question brought before any meeting of stockholders, other than the election of directors, shall be decided by the vote of the holders of a majority of the votes of shares of capital stock represented and entitled to vote thereat, voting as a single class. Every reference in these Bylaws to a majority or other proportion of shares, or a majority or other proportion of the votes of shares, of capital stock shall refer to such majority or other proportion of the votes to which such shares of capital stock are entitled as provided in the Certificate of Incorporation. Votes of stockholders entitled to vote at a meeting of stockholders may be cast in person or by proxy but no proxy shall be voted on or after three years from its date, unless such proxy provides for a longer period. The Board of Directors, in its discretion, or the chairman of the meeting of stockholders, in such chairman’s discretion, may require that any votes cast at such meeting shall be cast by written ballot. Abstentions shall not be considered to be votes cast.

ARTICLE III

BOARD OF DIRECTORS

Section 3.1 General Powers .

The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors. In addition to the powers and authorities expressly conferred upon them by these Bylaws, the Board of Directors may exercise all such powers of the Corporation and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation or by these Bylaws required to be exercised or done by the stockholders.

 

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Section 3.2 Number, Qualifications, Election and Term of Office .

(a) The Board of Directors shall consist initially of seventeen (17) directors. Subject to the rights of the holders of Preferred Stock and the terms of any Stockholder Agreement, and with the consent of any Significant Stockholder that is a party to a Stockholder Agreement, the number of directors on the Board of Directors may be increased or decreased from time to time exclusively pursuant to a resolution adopted by: the affirmative vote of a majority of the entire Board of Directors then in office. No reduction in the number of directors shall have the effect of shortening the term of any director in office at the time such reduction becomes effective.

(b) The retirement age of and other restrictions and qualifications for directors constituting the Board of Directors shall be as authorized from time to time by the affirmative vote of 66   2 / 3 % of the members of the Board of Directors then in office. Members of the Board of Directors need not be residents of the State of Delaware and need not be stockholders of the Corporation.

(c) The directors shall be divided into three classes, Class I, Class II and Class III, as provided in the Certificate of Incorporation, and shall hold office in accordance with the provisions as set forth therein.

Section 3.3 Vacancies .

Unless otherwise required by law, by any Stockholder Agreement or by the Certificate of Incorporation, vacancies arising through death, resignation, removal, an increase in the number of directors or otherwise may be filled by a majority of the directors then in office, even though less than a quorum, or by a sole remaining director, or (y) by the stockholders if such vacancy resulted from the action of stockholders (in which event such vacancy may not be filled by the directors or a majority thereof), and in any event the directors so chosen shall hold office until the next election for such class and until their successors are duly elected and qualified, or until their earlier death, resignation or removal.

Section 3.4 Removal .

Any director or the entire Board of Directors may only be removed for cause, such removal to be by the affirmative vote of the shares representing eighty percent (80%) of the votes entitled to be cast by the Voting Stock. “Cause” for removal of a director shall be deemed to exist only if: (i) the director whose removal is proposed has been convicted, or when a director is granted immunity to testify when another has been convicted, of a felony by a court of competent jurisdiction and such conviction is no longer subject to direct appeal; (ii) such director has been found by the affirmative vote of a majority of the Directors then in office at any regular or special meeting of the Board of Directors called for that purpose, or by a court of competent jurisdiction, to have been guilty of willful misconduct in the performance of his duties to the Corporation in a matter of substantial importance to the Corporation; (iii) such director has been adjudicated by a court of competent jurisdiction to be mentally incompetent, which mental incompetency directly affects his ability as a director of the Corporation; or (iv) the entry of any order against such director by any governmental body having regulatory authority with respect to the Corporation’s business. Notwithstanding the foregoing, whenever holders of outstanding shares of one or more series of Preferred Stock are entitled to elect directors of the Corporation pursuant to the provisions applicable in the case of arrearages in the payment of dividends or other defaults contained in the resolution or resolutions of the Board of Directors providing for the establishment

 

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of any such series, any such director of the Corporation so elected may be removed in accordance with the provisions of such resolution or resolutions. “Voting Stock” shall mean the shares of the then outstanding capital stock entitled to vote generally on the election of directors and shall exclude any class or series of capital stock only entitled to vote in the event of dividend arrearages thereon or other defaults thereunder, whether or not at the time of the determination there are any such dividend arrearages or defaults.

Section 3.5 Place of Meetings .

Meetings of the Board of Directors shall be held at such place or places, within or without the State of Delaware, as the Board of Directors may from time to time determine or as shall be specified in the notice of any such meeting. Each regular meeting of the Board of Directors shall be held at the location specified in the notice with respect to such meeting or, if no such notice is provided or no location is specified therein, at the principal executive offices of the Corporation.

Section 3.6 Regular Meetings .

Regular meetings of the Board of Directors shall be held at such time and place as the Board of Directors may fix. Notice of regular meetings of the Board of Directors need not be given except as otherwise required by applicable law or these Bylaws.

Section 3.7 Special Meetings .

Special meetings of the Board of Directors may be called by the Chairman of the Board of Directors or at the request of twenty percent (20%) of the directors. The person or persons authorized to call a special meeting of the Board of Directors may fix the place, date and time of the meeting. Upon request by the person or persons authorized to call such meetings, the Secretary of the Corporation shall give any requisite notice for the meeting.

Section 3.8 Notice of Meetings .

Notice of each special meeting of the Board of Directors (and of each regular meeting for which notice shall be required) shall be given by the Secretary as hereinafter provided in this Section 3.8, in which notice shall be stated the date, time and place of the meeting. Notice of a special meeting shall state the general purpose of the meeting, but other routine business may be conducted at a special meeting without such matter being stated in the notice. Notice of each meeting shall be given to each director either by mail not less than forty-eight (48) hours before the date of such meeting, by telephone or telegram on twenty-four (24) hours notice, or on such shorter notice as the person or persons calling such meeting may deem necessary or appropriate under the circumstances. Notice of any meeting need not be given to any director who shall, either before or after the meeting, submit a signed waiver of notice or who shall attend such meeting, except when he shall attend for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened.

Section 3.9 Quorum; Required Vote .

Except as otherwise provided by law, the Certificate of Incorporation, any Stockholder Agreement and Section 3.3 of these Bylaws, at all meetings of the Board of Directors, a majority of the entire Board of Directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board of Directors. In the absence of a quorum at any meeting of the Board of Directors, a majority of the directors present thereat may adjourn such meeting from time to time

 

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to another time and place. Notice of the time and place of any such adjourned meeting shall be given to all of the directors unless such time and place were announced at the meeting at which the adjournment was taken, in which case such notice shall only be given to the directors who were not present thereat. At any adjourned meeting at which a quorum is present, any business may be transacted which might have been transacted at the meeting as originally called.

Section 3.10 Organization .

At each meeting of the Board of Directors, the Chairman of the Board of Directors or, in his absence, the Vice Chairman or another director chosen by a majority of the directors present, shall act as chairman of the meeting and preside thereat. The Secretary or, in his absence, any person appointed by the chairman, shall act as secretary of the meeting and keep the minutes thereof.

Section 3.11 Resignations .

Any director of the Corporation may resign at any time by giving written notice of his resignation to the Chairman of the Board of Directors, the President or the Secretary. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, immediately upon its receipt. Unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.

Section 3.12 Compensation .

Directors shall receive such compensation, including fees and reimbursement of expenses, for their services as the Board of Directors may determine from time to time. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation thereof.

Section 3.13 Action by Written Consent .

Unless otherwise provided by the Certificate of Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of the Board of Directors or any committee thereof may be taken without a meeting if all members of the Board of Directors or of such committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of the proceedings of the Board of Directors or such committee, as the case may be.

Section 3.14 Telephonic Meeting .

Unless otherwise provided by the Certificate of Incorporation, any one or more members of the Board of Directors or any committee thereof may participate in a meeting of the Board of Directors or such committee by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation by such means shall constitute presence in person at a meeting.

Section 3.15 Board Committees .

(a) The Board of Directors may by resolution designate one or more committees (in addition to the mandatory Standing Committees as set forth in Section 3.15(e) below) consisting of one or more directors of the Corporation which, to the extent authorized in any resolution of the Board of Directors or these Bylaws and permissible under the DGCL, the Certificate of Incorporation and any Stockholder Agreement, shall have and may exercise any or all the powers

 

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and authority of the Board of Directors in the management of the business and affairs of the Corporation, except that no committee (including any Standing Committee) shall have the power to take any action which requires, pursuant to these Bylaws or any Stockholder Agreement, the affirmative vote of at least a majority or any greater proportion of the entire Board of Directors then in office.

(b) Except as provided in any Stockholder Agreement, with respect to all committees designated in accordance with this Section 3.15, the Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of any such committee. With respect to all Board committees designated in accordance with this Section 3.15, in the absence or disqualification of a member of a committee, and in the absence of a designation by the Board of Directors of an alternate member to replace the absent or disqualified member, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any absent or disqualified member. Any committee may authorize the seal of the Corporation to be affixed to all papers which may require it.

(c) A majority of the members of any committee may determine such committee’s procedures for the conduct of business and may fix the time and place of its meetings, unless the Board of Directors shall by resolution otherwise provide. Notice of such meetings shall be given to each member of the committee in the same manner as provided for meetings of the Board of Directors by these Bylaws. Each committee shall keep written minutes of its proceedings and shall report such proceedings to the Board of Directors when required. Except as otherwise provided by resolution of the Board of Directors or of such committee, a quorum for the transaction of business by a committee at a meeting thereof shall be a majority of the members and the affirmative vote of a majority of the members present at a meeting at which a quorum is present shall be the act of the committee.

(d) Nothing herein shall be deemed to prevent the Board of Directors from appointing one or more committees consisting in whole or in part of one or more officers, employees or persons who are not directors of the Corporation to conduct any part of the business or affairs of the Corporation; provided, however, that no such committee shall have or may exercise any authority of the Board of Directors.

(e) Standing Committees.

The standing committees which, subject to Section 3.15(a), shall be appointed from time to time by the Board of Directors shall be: the Executive Committee, the Audit Committee, the Nominating and Governance Committee and the Management Development and Compensation Committee. Subject to the terms of any Stockholder Agreement:

(i) Executive Committee .

the Executive Committee shall consist of the Chairman and Chief Executive Officer and not less than four other directors who shall from time to time be appointed by the Board of Directors. The Executive Committee shall have and exercise in the intervals between the meetings of the Board of Directors all the powers of the Board of Directors, except as prohibited by applicable law. All acts done and powers conferred by the Executive Committee from time to time shall be deemed to be, and may be certified as being, done and conferred under authority of the Board of Directors.

 

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(ii) Audit Committee .

the Board of Directors shall appoint annually the Audit Committee consisting of not less than three directors, all of whom shall be Independent Directors. The Audit Committee will select and oversee the Corporation’s auditors, with whom the Audit Committee will, among other things, review the scope of audit and non-audit assignments and related fees, accounting principles used by the Corporation in financial reporting, internal auditing procedures and the adequacy of the Corporation’s risk management, compliance and internal control procedures.

(iii) Nominating and Governance Committee .

the Board of Directors shall appoint annually the members of the Nominating and Governance Committee, consisting of not less than three directors, all of whom shall be Independent Directors. The Nominating and Governance Committee will review the qualifications of potential candidates for the Board of Directors, report its findings to the Board of Directors and propose to the Board of Directors nominations for board memberships for approval by the Board of Directors and, if appropriate, submission by the Board of Directors to the stockholders of the Corporation for election. The Nominating and Governance Committee will also recommend to the Board of Directors (for adoption by the Board of Directors) the Corporate Governance Guidelines applicable to the Corporation, lead the Board of Directors in its annual review of the performance of the Board of Directors and management and recommend to the Board of Directors director nominees for each committee.

(iv) Management Development and Compensation Committee .

the Board of Directors shall appoint annually the members of the Management Development and Compensation Committee, consisting of not less than three directors, all of whom shall be Independent Directors. The Management Development and Compensation Committee will administer such compensation plans as the Board of Directors may determine from time to time, and will establish the compensation for the Corporation’s executive officers. The Management Development and Compensation Committee may by resolution designate a subcommittee to administer the Corporation’s compensation plans.

(f) For purposes of this Section 3.15, “Independent Director” means any Director who (i) is or would be an “independent director” with respect to New BlackRock pursuant to Section 303A.02 of the New York Stock Exchange Listed Company Manual and Section l0A of the Exchange Act (or any successor provisions) and (ii) was not nominated or proposed for nomination by or on behalf of a Significant Stockholder or any Affiliates or Designated Directors of a Significant Stockholder.

ARTICLE IV

OFFICERS

Section 4.1 Designation .

The officers of the Corporation shall be elected by the Board of Directors and shall include a Chief Executive Officer, President, Chief Financial Officer, Treasurer and Secretary. The Board of Directors of the Corporation, in its discretion, may also elect a Chairman of the Board of Directors (who must be a director), one or more Vice Chairmen (who need not be a director) and one or more Managing Directors, Directors, Vice Presidents, Assistant Treasurers, Assistant Secretaries and other officers.

 

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Section 4.2 Election and Tenure .

Officers and assistant officers of the Corporation may, but need not, also be members of the Board of Directors or stockholders of the Corporation. At its first meeting after each annual meeting of the stockholders, the Board of Directors shall elect the officers or provide for the appointment thereof. Unless otherwise provided by the Certificate of Incorporation, the term of each officer elected by the Board of Directors shall be until the first meeting of the Board of Directors following the next annual meeting of stockholders and until his successor is elected and qualified or until his earlier death, resignation or removal in the manner specified in this Section 4.2. Any officer elected or appointed by the Board of Directors may be removed by the Board of Directors at any time with or without cause by the majority vote of the members of the Board of Directors then in office. Any officer or assistant officer appointed by another officer may be removed from office with or without cause by such officer. The removal of an officer shall be without prejudice to his contract rights, if any. The election or appointment of an officer shall not of itself create contract rights. Any officer of the Corporation may resign at any time by giving written notice of his resignation to the Chairman of the Board of Directors, the President or the Secretary. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, immediately upon its receipt. Unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. Should any vacancy occur among the officers, the position shall be filled for the unexpired portion of the term by appointment made by the Board of Directors or, in the case of offices held by officers who may be appointed by other officers, by any officer authorized to appoint such officer. Any individual may be elected to, and may hold, more than one office of the Corporation.

Section 4.3 Duties .

Except as set forth in Section 4.5, the powers and duties of the several officers shall be as provided from time to time by resolution or other directive of the Board of Directors. In the absence of such provisions, the respective officers shall have the powers and shall discharge the duties customarily and usually held and performed by like officers of corporations similar in organization and business purposes to the Corporation.

Section 4.4 Compensation .

Officers may be paid such reasonable compensation as the Board of Directors may from time to time authorize and direct. The Board of Directors may delegate its authority to determine compensation to a committee.

Section 4.5 Responsibilities of the Chief Executive Officer .

Subject to the direction of the Board of Directors, the Chief Executive Officer shall have the general supervision of the policies, business and operations of the Corporation, and of the other officers, agents and employees of the Corporation and, except as otherwise provided in these Bylaws or by the Board of Directors, shall have all the other powers and duties as are usually incident to the Chief Executive Officer of a corporation. In the absence of the Chief Executive Officer, his rights and duties shall be performed by such other officer or officers as shall be designated by the Board of Directors. To the extent not specifically appointed to a Committee, the Chief Executive Officer of the Corporation shall be ex officio a member of all Committees except the Audit Committee, the Nominating and Governance Committee and the Management Development and Compensation Committee.

 

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ARTICLE V

STOCK CERTIFICATES AND THEIR TRANSFER

Section 5.1 Uncertificated and Certificated Shares; Form of Certificates .

Effective at such time as the President or any Vice President or the Treasurer of the Corporation designates in writing to the Corporate Secretary and any transfer agents of the Corporation with respect to any class of stock of the Corporation, the shares of such class shall be uncertificated shares, provided that the foregoing shall not apply to shares represented by a certificate until such certificate is surrendered to the Corporation and provided further that upon request every holder of uncertificated shares shall be entitled, to the extent provided in Section 158 of the DGCL, to have a certificate signed in the name of the Corporation (i) by the President or a Vice President and (ii) by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the Corporation, certifying the number of shares owned by such stockholder in the Corporation.

Section 5.2 Record Owners .

A record of the name and address of the holder of each certificate, the number of shares represented thereby and the date of issue thereof shall be made on the Corporation’s books. The Corporation shall be entitled to recognize the exclusive right of a person registered on its records as the owner of shares of stock to receive dividends and to vote as such owner, shall be entitled to hold liable for calls and assessments a person registered on its records as the owner of shares of stock, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares of stock on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of the State of Delaware.

Section 5.3 Transfers of Stock .

Stock of the Corporation shall be transferable in the manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the Corporation only by the person named as the holder thereof on the stock records of the Corporation, by such person’s attorney lawfully constituted in writing, and in the case of shares represented by a certificate upon the surrender of the certificate thereof, which shall be cancelled before a new certificate shall be issued. No transfer of stock shall be valid as against the Corporation for any purpose until it shall have been entered in the stock records of the Corporation by an entry showing from and to whom transferred. To the extent designated by the President or any Vice President or the Treasurer of the Corporation, the Corporation may recognize the transfer of fractional uncertificated shares, but shall not otherwise be required to recognize the transfer of fractional shares.

Section 5.4 Transfer Agents and Registrars .

The Board of Directors may appoint, or authorize any officer or officers to appoint, one or more transfer agents and one or more registrars. If any certificate is countersigned (a) by a transfer agent other than the Corporation or its employee, or (b) by a registrar other than the Corporation or its employee, any signature on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if such person were such officer, transfer agent or registrar at the date of issue.

 

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Section 5.5 Regulations .

The Board of Directors may make such additional rules and regulations, not inconsistent with these Bylaws, as it may deem expedient concerning the issue, transfer and registration of certificates for shares of stock of the Corporation.

Section 5.6 Fixing the Record Date .

(a) In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting. If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

(b) In order that the Corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall not be more than ten (10) days after the date upon which the resolution fixing the record date is adopted by the Board of Directors. If no record date has been fixed by the Board of Directors, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the Corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. If no record date has been fixed by the Board of Directors and prior action by the Board of Directors is required by law, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the day on which the Board of Directors adopts the resolutions taking such prior action.

(c) In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty (60) days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.

Section 5.7 Lost Certificates .

The Board of Directors may direct a new certificate to be issued in place of any certificate theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen

 

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or destroyed. When authorizing such issue of a new certificate, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or the owner’s legal representative, to advertise the same in such manner as the Board of Directors shall require and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen or destroyed or the issuance of such new certificate.

ARTICLE VI

INDEMNIFICATION AND INSURANCE

Section 6.1 Right to Indemnification .

Each person who was or is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a “proceeding”), by reason of the fact that he or she, or a person of whom he or she is the legal representative, is or was a director or officer, of the Corporation or is or was serving at the request of the Corporation as a director or officer of another company, partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action in an official capacity as a director or officer or in any other capacity while serving as a director or officer shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the DGCL, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment), against all expense, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) incurred or suffered by such person in connection therewith and such director or officer and shall inure to the benefit of his or her heirs, executors and administrators; provided, however, that, except as provided in Section 6.2 hereof, the Corporation shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation. The right to indemnification conferred in this Section 6.1 shall be a contract right and shall include the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that, if the DGCL requires, the payment of such expenses incurred by a director or officer in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under this Section 6.1 or otherwise. The Corporation may, by action of its Board of Directors, provide indemnification to employees and agents of the Corporation with the same scope and effect as the foregoing indemnification of directors and officers.

Section 6.2 Right of Claimant to Bring Suit .

If a claim under Section 6.1 is not paid in full by the Corporation within thirty (30) days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final

 

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disposition where the required undertaking, if any is required, has been tendered to the Corporation) that the claimant has not met the standards of conduct which make it permissible under the DGCL for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, independent legal counsel or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the DGCL, nor an actual determination by the Corporation (including its Board of Directors, independent legal counsel or its stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct.

Section 6.3 Non-Exclusivity of Rights .

The right to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article VI shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of the Certificate of Incorporation, Bylaws, agreement, vote of stockholders or disinterested directors or otherwise.

Section 6.4 Insurance .

The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any such expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the DGCL.

ARTICLE VII

GENERAL PROVISIONS

Section 7.1 Seal .

The seal of the Corporation shall be in such form as shall be approved by the Board of Directors. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise, as may be prescribed by law or custom or by the Board of Directors.

Section 7.2 Fiscal Year .

The fiscal year of the Corporation shall begin on January 1 and end on December 31 of each year.

Section 7.3 Checks, Notes, Drafts, Etc .

All checks, notes, drafts or other orders for the payment of money of the Corporation shall be signed, endorsed or accepted in the name of the Corporation by such officer, officers, person or persons as from time to time may be designated by the Board of Directors or by an officer or officers authorized by the Board of Directors to make such designation.

Section 7.4 Voting of Stock in Other Persons .

Unless otherwise provided by resolution of the Board of Directors, the Chief Executive Officer, from time to time, may (or may appoint one or more attorneys or agents to) cast the

 

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votes that the Corporation may be entitled to cast as a stockholder or otherwise in any other Person, any of whose shares or securities may be held by the Corporation, at meetings of the holders of the shares or other securities of such other corporation, or consent in writing to any action by any such other corporation. In the event one or more attorneys or agents are appointed, the Chief Executive Officer may instruct the person or persons so appointed as to the manner of casting such votes or giving such consent. The Chief Executive Officer may, or may instruct the attorneys or agents appointed to, execute or cause to be executed in the name and on behalf of the Corporation and under its seal or otherwise, such written proxies, consents, waivers or other instruments as may be necessary or proper in the circumstances relating to securities owned by the Corporation.

Section 7.5 Dividends .

Subject to the provisions of the DGCL and the Certificate of Incorporation, dividends upon the shares of capital stock of the Corporation may be declared by the Board of Directors at any regular or special meeting in accordance with the voting requirements set forth in Section 3.10 if applicable. Dividends may be paid in cash, in property or in shares of stock of the Corporation, unless otherwise provided by the DGCL or the Certificate of Incorporation.

ARTICLE VIII

AMENDMENTS

Except as otherwise provided in any Stockholder Agreement, these Bylaws may be amended, altered, changed, adopted and repealed or new bylaws adopted by the affirmative vote of at least a majority of the members of the Board of Directors then in office; provided that any adoption, alteration or repeal of any Bylaw by the Board of Directors, if such adoption, alteration or repeal would be inconsistent with the provisions of any Stockholder Agreement, shall require such approval, if any, as shall be required by the terms of such Stockholder Agreement.

 

16

Exhibit 3.3

CERTIFICATE OF THE DESIGNATIONS,

POWERS, PREFERENCES AND RIGHTS

OF

SERIES A CONVERTIBLE PARTICIPATING PREFERRED STOCK

OF

NEW BLACKROCK, INC.

(Pursuant to Section 151 of the

Delaware General Corporation Law)

New BlackRock, Inc. a Delaware corporation (the “Corporation”), hereby certifies that the following resolution was adopted by the Board of Directors of the Corporation:

RESOLVED, that pursuant to the authority expressly granted to and vested in the Board of Directors of the Corporation (the “Board of Directors”) by the provisions of the Amended and Restated Certificate of Incorporation of the Corporation (the “Certificate of Incorporation”), there is hereby created, out of the 500,000,000 shares of preferred stock, par value $0.01 per share, of the Corporation authorized in Article Fourth of the Certificate of Incorporation (the “Preferred Stock”), a series of the Preferred Stock consisting of 20,000,000 shares, which series shall have the following powers, designations, preferences and relative, participating, optional or other rights, and the following qualifications, limitations and restrictions (in addition to any powers, designations, preferences and relative, participating, optional or other rights, and any qualifications, limitations and restrictions, set forth in the Certificate of Incorporation which are applicable to the Preferred Stock):

Section 1. Designation of Amount .

The shares of Preferred Stock created hereby shall be designated the “Series A Convertible Participating Preferred Stock” (the “Series A Preferred Stock”) and the authorized number of shares constituting such series shall be 20,000,000.

Section 2. Dividends, Etc .

(a) In the event any dividends are declared or paid or any other distribution is made on or with respect to the Common Stock of the Corporation, the holder of each share of Series A Preferred Stock as of the record date established by the Board of Directors for such dividend or distribution on the Common Stock shall be entitled to receive dividends in an amount equal to the amount of the dividends or distribution that such holder would have received had the holder held one share of Common Stock as of the date immediately prior to the record date for such dividend or distribution on the Common Stock, such dividends to be payable on the same payment date established by the Board of Directors for the payment of such dividend or distribution on the Common Stock; provided , however , that such dividend shall be payable, at the option of the holder of each share of Series A Preferred Stock, (i) in a number of shares of Common Stock having a Fair Market Value on the date of payment of such dividend equal to the

aggregate amount of such cash dividends otherwise payable to such holder on such date, with cash being paid in lieu of fractional shares of Common Stock or (ii) in an amount of cash equal to the Fair Market Value of such shares of Common Stock or (iii) in any combination of the foregoing; provided , further , that if the election by any holder of Series A Preferred Stock to receive Common Stock in respect of any dividend or distribution would result in such holder and its Affiliates Beneficially Owning in excess of 49.8 percent of the Total Voting Power, then such holder shall receive cash to the extent of such excess. The record date for any such dividend shall be the record date for the applicable dividend or distribution on the Common Stock, and any such dividends shall be payable to the Persons in whose name the Series A Preferred Stock is registered at the close of business on the applicable record date.

(b) No dividend shall be paid or declared on any share of Common Stock, unless a dividend, payable in the same consideration and manner, is simultaneously paid or declared, as the case may be, on each share of Series A Preferred Stock in an amount determined as set forth above. For purposes hereof, the term “dividends” shall include any pro rata distribution by the Corporation of cash, property, securities (including, but not limited to, rights, warrants or options) or other property or assets to the holders of the Common Stock, whether or not paid out of capital, surplus or earnings, other than a distribution upon liquidation of the Corporation in accordance with Section 3 hereof.

(c) No subdivision, combination, consolidation or reclassification shall be effected with respect to the Common Stock unless a proportionate subdivision, combination, consolidation or reclassification, effected in the same manner, is simultaneously effected with respect to each share of Series A Preferred Stock, and no subdivision, combination, consolidation or reclassification shall be effected with respect to the Series A Preferred Stock unless a proportionate subdivision, combination, consolidation or reclassification, effected in the same manner, is simultaneously effected with respect to each share of Common Stock.

(d) Prior to declaring any dividend or making any distribution on or with respect to shares of Common Stock, the Corporation shall take all prior corporate action necessary to authorize the issuance of any securities payable as a dividend in respect of the Series A Preferred Stock.

Section 3. Liquidation Preference .

(a) In the event of a liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary (a “Liquidation”), the holders of the Series A Preferred Stock then outstanding shall be entitled to receive out of the available assets of the Corporation, whether such assets are stated capital or surplus of any nature, an amount on such date equal to $0.01 per share of Series A Preferred Stock, plus the amount of any declared but unpaid dividends thereon as of such date, calculated pursuant to Section 2 (the “Liquidation Preference”). Such payment shall be made before any payment shall be made or any assets distributed to the holders of any class or series of the Common Stock or any other class or series of the Corporation’s capital stock ranking junior as to liquidation rights to the Series A Preferred Stock.

 

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(b) After the payment of the Liquidation Preference, the remaining assets of the Corporation shall be distributed pro rata to the holders of Common Stock and Series A Preferred Stock, and the holders of Common Stock and Series A Preferred Stock will be entitled to receive the same amount per share in respect thereof.

(c) Neither the consolidation nor merger of the Corporation into or with any other entity, nor the sale or transfer by the Corporation of all or any part of its assets, nor the reduction of the capital stock of the Corporation, shall be deemed to be a Liquidation; provided , however , that in any such transaction, to the extent that holders of Common Stock receive consideration other than voting securities, the holders of Series A Preferred Stock shall receive identical consideration per share, and to the extent that holder of Common Stock receive voting securities, the holders of Series A Preferred Stock shall receive non-voting securities that are otherwise identical to the securities received by holders of Common Stock; provided , further that if the aggregate consideration to be received by the holders of the Series A Preferred Stock in any such transaction would be less than what such holders would have received had such transaction been deemed to be a Liquidation, then such transaction shall be deemed to be a Liquidation within the meaning of this Section 3(c).

(d) Any securities to be delivered to the holders of the Series A Preferred Stock pursuant to this Section 3 as a consequence of a Liquidation shall be valued at their Fair Market Value.

Section 4. Voting Rights . Except as otherwise provided by applicable law, the holders of outstanding shares of the Series A Preferred Stock shall have no voting rights.

Section 5. Restrictions on Common Stock . The Corporation shall not at any time effect a subdivision, combination, consolidation or reclassification of the outstanding shares of Common Stock into a greater or lesser number of shares of Common Stock, unless such subdivision, combination, consolidation or reclassification shall also apply in a like manner to the outstanding Series A Preferred Stock.

Section 6. Automatic Conversion . Each share of Series A Preferred Stock shall be automatically converted into one fully paid and non-assessable share of Common Stock upon the Transfer thereof by an initial holder thereof (an “Initial Holder”) or any Affiliate of the Initial Holder other than to an Initial Holder or an Affiliate of an Initial Holder (except a broker-dealer affiliate in connection with a capital markets transaction). Effective immediately upon the occurrence of the conversion, certificates theretofore evidencing shares of Series A Preferred Stock shall be deemed to evidence that number of shares of Common Stock issuable upon the conversion of such shares of Series A Preferred Stock. The Initial Holder shall give prompt notice to the Corporation of (i) any Transfer of any shares of Series A Preferred Stock, and shall indicate in such notice if the transferee is an Affiliate of the Initial Holder and (ii) any event or transaction pursuant to which any such transferee Affiliate then holding Series A Preferred Stock ceases to be an Affiliate of the Initial Holder.

 

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Section 7. No Optional Conversion . At no time may any share of Series A Preferred Stock be converted at the option of the holder thereof.

Section 8. Certain Definitions . Capitalized terms used herein and not otherwise defined shall have the meanings given to them in the Certificate of Incorporation. Solely for purposes of this Certificate of Designations, Powers, Preferences and Rights of the Series A Preferred Stock, the following terms shall have the following respective meanings herein:

“Board of Directors” has the meaning assigned to it in the introductory paragraph.

“Certificate of Incorporation” has the meaning assigned to it in the introductory paragraph.

“Corporation” has the meaning assigned to it in the introductory paragraph.

“Fair Market Value” means, as to any securities or other property, the cash price at which a willing seller would sell and a willing buyer would buy such securities or property in an arm’s length negotiated transaction without time constraints. With respect to any securities that are traded on a national securities exchange or quoted on the Nasdaq National Market or the Nasdaq Small Cap Market, Fair Market Value shall mean the arithmetic average of the closing prices of such securities on their principal market for the ten consecutive trading days immediately preceding the applicable date of determination and with respect to shares of Series A Participating Preferred Stock shall be the same price per share as the Fair Market Value per share of the Common Stock.

“Independent Investment Banking Firm” means an investment banking firm of nationally recognized standing that in the reasonable judgment of the Person or Persons engaging such firm, taking into account any prior relationship with any Significant Stockholder or the Corporation, is independent of such Person or Persons.

“Initial Holder” has the meaning assigned to it in Section 6 hereof.

“Liquidation” has the meaning assigned to it in Section 3(a) hereof.

“Liquidation Preference” has the meaning assigned to it in Section 3(a) hereof.

“Preferred Stock” has the meaning assigned to it in the introductory paragraph.

“Series A Preferred Stock” has the meaning assigned to it in Section 1 hereof.

“Total Voting Power” means the total number of votes entitled to be cast by the holders of the outstanding Capital Stock and any other securities entitled, in the ordinary course, to vote on matters put before the holders of the Capital Stock generally.

“Transfer” means, directly or indirectly, to sell, transfer, assign, pledge, encumber, hypothecate or similarly dispose of (by operation of law or otherwise), either voluntarily or involuntarily, or to enter into any contract, option or other arrangement or

 

4

understanding with respect to the sale, transfer, assignment, pledge, encumbrance, hypothecation or similar disposition of (by operation of law or otherwise), any Capital Stock or any interest in any Capital Stock; provided , however , that a merger, amalgamation, plan of arrangement or consolidation or similar business combination transaction in which a Significant Stockholder is a constituent corporation (or otherwise a party including, for the avoidance of doubt, a transaction pursuant to which a Person acquires all or a portion of a Significant Stockholder’s outstanding Capital Stock, whether by tender or exchange offer, by share exchange, or otherwise) shall not be deemed to be the Transfer of any Capital Stock Beneficially Owned by such parent, provided that the primary purpose of any such transaction is not to avoid the provisions hereof.

[Execution Page Follows]

 

5

IN WITNESS WHEREOF, the Corporation has caused this Certificate of Designations to be signed by Daniel R. Waltcher, its Managing Director, Deputy General Counsel and Assistant Secretary, this 29 th day of September, 2006.

 

By:  

/s/ Daniel R. Waltcher

Name:   Daniel R. Waltcher
Title:   Managing Director,
  Deputy General Counsel and
  Assistant Secretary

 

6

Exhibit 4.2

FIRST SUPPLEMENTAL INDENTURE

FIRST SUPPLEMENTAL INDENTURE, dated as of September 29, 2006, among BlackRock Holdco 2, Inc. (“BR Holdco 2”), a Delaware corporation (as successor to BlackRock, Inc., a Delaware corporation (“BlackRock” or the “Company”)), BlackRock, Inc., a Delaware corporation (formerly New BlackRock, Inc., “New BlackRock”), and JPMorgan Chase Bank, N.A., a national banking association, as trustee (hereinafter sometimes called the “Trustee”) to the Indenture, dated as of February 23, 2005, between BlackRock and the Trustee (the “Indenture”).

WHEREAS, pursuant to the Transaction Agreement and Plan of Merger, dated as of February 15, 2006 (the “Transaction Agreement”), by and among Merrill Lynch & Co., Inc., BlackRock, New BlackRock, and BlackRock Merger Sub, Inc., a Delaware corporation (“BlackRock Merger Sub”), BlackRock Merger Sub has merged with and into BlackRock with BlackRock as the surviving entity in such merger;

WHEREAS, pursuant to the Transaction Agreement, each share of Class A Common Stock of BlackRock was converted into one share of common stock of New BlackRock;

WHEREAS, pursuant to the Merger Agreement, dated September 29, 2006 (the “Merger Agreement”), by and between BlackRock and BR Holdco 2, BlackRock merged with and into BR Holdco 2 with BR Holdco 2 as the surviving entity in such merger;

WHEREAS, following the transactions contemplated by the Transaction Agreement and the Merger Agreement, the Debentures will become exchangeable into shares of common stock of New BlackRock;

WHEREAS, New BlackRock finds it desirous and in the best interest of its shareholders to become a co-obligor with respect to all of the obligations of the Company under the Indenture; and

WHEREAS, all the requirements set forth in Article 12 of the Indenture with respect to the execution of this Supplemental Indenture have been satisfied.

NOW, THEREFORE, BR Holdco 2, New BlackRock and the Trustee hereby agree as follows:

ARTICLE I

Section 1.01 Except as otherwise specified herein, terms used but not defined herein shall have the meanings ascribed to them in the Indenture.

ARTICLE II

Section 2.01 Each of BR Holdco 2 and New BlackRock hereby expressly assumes the due and punctual payment of the principal of and premium, if any, and interest on

all the Debentures and the performance or observance of every covenant and obligation to be performed or observed under the Indenture on the part of the Company.

Section 2.02 Upon the effectiveness of this Supplemental Indenture, and in accordance with Section 12.02 of the Indenture and other than as described in Section 2.03 hereof, BR Holdco 2 shall succeed to, and be substituted for, and may exercise every right and power of the Company under the Indenture with the same effect as if BR Holdco 2 had been named as the Company thereunder.

Section 2.03 In accordance with Article 15, upon the surrender of conversion of any of the Debentures, the Holders thereof shall receive, in lieu of Class A Common Stock of the Company, Common Stock of New BlackRock.

ARTICLE III

Section 3.01 This Supplemental Indenture shall become effective upon the execution thereof by BR Holdco 2, New BlackRock and the Trustee.

Section 3.02 THIS SUPPLEMENTAL INDENTURE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED THEREIN WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF AND EACH OF THE PARTIES HERETO, HEREBY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN RESPECT OF ANY DISPUTE ARISING THEREIN.

Section 3.03 This Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.

Section 3.04 The Trustee makes no representations as to the validity or sufficiency of this Supplemental Indenture. The recitals and statements herein are deemed to be those of BR Holdco 2 and New BlackRock and not of the Trustee.

Section 3.05 Any corporation or association into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation or association resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation or association to which all or substantially all of the corporate trust business of the Trustee may be sold or otherwise transferred, shall be the successor trustee hereunder without any further act.

 

-2-

IN WITNESS WHEREOF, the parties hereto have executed and unconditionally delivered this Supplemental Indenture as of the 29 th day of September, 2006.

 

BLACKROCK HOLDCO 2, INC.
(successor to BlackRock, Inc.)

By:   /s/ Daniel Waltcher
  Name:   Daniel Waltcher
  Title:   Managing Director and Deputy General Counsel

 

BLACKROCK, INC.
(formerly known as New BlackRock, Inc.)

By:   /s/ Daniel Waltcher
  Name:   Daniel Waltcher
  Title:   Managing Director and Deputy General Counsel

 

JPMORGAN CHASE BANK, N.A., as
trustee

By:   /s/ Carol Ng
  Name:   Carol Ng
  Title:   Vice President

Exhibit 10.5

BLACKROCK, INC.

1999 STOCK AWARD AND INCENTIVE PLAN

STOCK OPTION AGREEMENT

 

Name of Optionee :   

Number of Shares

Subject to Options :

   [            ] shares of Class A Common Stock, $0.01 par value, of BlackRock, Inc. (the “Shares”).
Option Exercise Price :    [$                    ]
Grant Date :    [                      ]
Vesting Dates :    First Installment: [    ] Options, on [            ]
   Second Installment: [    ] Options, on [            ]
   Third Installment: [    ] Options, on [            ]
Expiration Date :   

*        *        *        *        *         *        *

This Stock Option Agreement (this “Agreement”) is executed and delivered as of the Grant Date set forth above by and between BlackRock, Inc., a Delaware company, and its successors (the “Company”) and the Optionee set forth above. The Optionee and the Company hereby agree as follows:

 

1. Definitions . For all purposes in this Agreement, the following terms shall have the respective meanings set forth in this Section 1.

 

  (a) “Affiliate” means any corporation, partnership, joint venture, association, organization or other person or entity that is directly or indirectly through one or more intermediaries, controlling, controlled by or under common control with the person or entity specified.

 

  (b)

“Cause” means (i) “Cause” as defined in any Individual Agreement, or (ii) if there is no such Individual Agreement or if such Individual Agreement does not define “Cause”: (A) a material breach by the Optionee of any written policies of the Company or any Affiliate required by law or established to maintain compliance with applicable law or any breach of Section 11 of this Agreement; (B) any act of fraud, misappropriation, dishonesty, embezzlement or similar conduct by the Optionee against the Company or any Affiliate or any client of the Company or an Affiliate; (C) conviction (including a plea of nolo contendere) of the Optionee for the commission of a felony that could, in the Company’s reasonable judgment, impair the Optionee’s ability to perform his or her duties or adversely affect the Company’s or any Affiliate’s business or reputation; or (D) entry of any

 

order against the Optionee by any governmental body having regulatory authority with respect to the Company’s or any Affiliate’s business, which order relates to or arises out of the Optionee’s employment or service relationship with the Company or any Affiliate. Unless otherwise provided in an Individual Agreement with respect to for Cause terminations, a determination of Cause under the Plan only may be made by the Company’s Chief Executive Officer.

 

  (c) “Code” means the Internal Revenue Code of 1986, as amended.

 

  (d) “Committee” means the Compensation Committee of the Board of Directors of the Company.

 

  (e) “Disability” means (i) “Disability” as defined in any Individual Agreement, or (ii) if there is no Individual Agreement or the Individual Agreement does not define Disability, the Optionee’s physical or mental incapacity constituting disability, as determined under the Company’s Long-Term Disability Plan applicable to the Optionee, which, in any event, does or is reasonably expected to continue for at least twelve months.

 

  (f) “Fair Market Value” means, as of a particular date, (i) the closing sales price per Share on the national securities exchange on which Shares are principally traded for the last preceding date on which there was a sale of Shares on such exchange, or (ii) if Shares are then traded in an over-the-counter market, the average of the closing bid and asked per Share in such over-the-counter market for the last preceding date on which there was a sale of Shares in such market, or (iii) if Shares are not then listed on a national securities exchange or traded in an over-the-counter market, the fair market value of a Share shall be determined by a nationally recognized investment banking firm selected by the Committee for such purpose.

 

  (g) “Individual Agreement” means an employment, consulting or similar agreement between the Optionee and the Company or any Subsidiary or Affiliate of the Company.

 

  (h) “Plan” means the 1999 Stock Award and Incentive Plan, as amended.

 

  (i) “Retirement” means the Optionee’s voluntary Termination of Employment other than for Cause after the Optionee has satisfied the Rule of 65 with at least the age of 55 and a total of at least three years of combined and continuous employment with the Company or any Subsidiary, provided, that the Optionee shall have provided written notice to the Company at least one year prior to such Termination of Employment.

 

  (j) “Rule of 65” means the sum of the Optionee’s age and years of combined and continuous years of employment with the Company or any Subsidiary or Affiliate (including periods of employment with an entity prior to its becoming a Subsidiary or Affiliate) equals at least sixty-five (65). For purposes of determining Rule of 65, years of age and service equal full years and completed months.

 

  (k)

“Subsidiary” means any corporation, partnership, joint venture or other

 

2

 

entity during any period in which at least a 50% voting or profits interest is owned, directly or indirectly, by the Company or any successor to the Company.

 

  (l) “Termination of Employment” means the termination of the Optionee’s employment with, or performance of services for, the Company or any Subsidiary or Affiliate. An individual employed by, or performing services for, any Subsidiary or an Affiliate also shall be deemed to incur a Termination of Employment if the Subsidiary or Affiliate ceases to be a Subsidiary or Affiliate, as the case may be, and the individual does not immediately thereafter become an employee of, or service-provider for, the Company or another Subsidiary or Affiliate. Temporary absences from employment because of illness, vacation or leave of absence and transfers among the Company and any Subsidiary or Affiliate shall not be considered Terminations of Employment.

Capitalized terms not defined herein shall have the meanings ascribed in the Plan. In addition, certain other terms used herein have definitions given to them in the first place in which they are used.

 

2. Grant . The Company, pursuant to the Plan (as modified from time to time in accordance with the terms thereof), which is incorporated herein by reference, and subject to the terms and conditions thereof, grants to the Optionee as of the Grant Date an option to purchase (the “Option”) the above-mentioned Shares. The Optionee may exercise, on or after the Vesting Dates specified above and on or prior to the Expiration Date specified above, all or any part of the vested Options, at the Option Exercise Price per Share specified above, subject to the terms and conditions set forth in this Agreement. The Option is not intended to qualify and shall not be treated as an “incentive stock option” under §422A of the Code.

 

3. Vesting . No portion of the Option may be exercised until the date on which such portion shall have become exercisable in accordance with the vesting schedule set forth above. Except as set forth below, and subject to the determination of the Company in its sole discretion to accelerate the vesting schedule hereunder, the Option shall become exercisable with respect to the number of Shares specified on the Vesting Dates set forth above. Once exercisable, the Option shall continue to be exercisable at any time or times prior to the Expiration Date, subject to the provisions hereof and of the Plan.

 

4. Exercise of Option .

 

  (a) The Option shall be exercised in the following manner: the Optionee, or the person or persons having the right to exercise the Option upon the death or Disability of the Optionee, shall deliver to the Company a written notice specifying the number of Shares that the Optionee elects to purchase. Until the Company notifies the Optionee to the contrary, the form attached to this Agreement as Annex A shall be used to exercise the Option granted hereunder. The Optionee must include with the notice full payment for any Shares being purchased under an Option.

 

  (b)

Payment of the Option Exercise Price for any Shares being purchased must be made (i) in cash or by certified or cashier’s check, (ii) by delivering to

 

3

 

the Company a number of Shares (that have been owned without any restrictions by the Optionee for at least six months prior to the date of exercise of the Option or such other period as may be specified by the Committee) equal in value to the aggregate Option Exercise Price for that portion of the Option then being exercised, or (iii) through a broker’s cashless exercise procedure approved by the Committee. If the Optionee pays by delivering Shares, the Optionee must include with the notice of exercise the certificates for such Shares either duly endorsed for transfer or accompanied by an appropriately executed stock power in favor of the Company. The Shares delivered by the Optionee will be valued by the Company at their Fair Market Value on the day preceding the date of exercise of the Option.

 

  (c) Not less than 100 Shares may be purchased at any time upon the exercise of an Option, unless the number of Shares so purchased constitutes the total number of Shares then purchasable under the Option. The Option may be exercised only to purchase whole Shares and in no case may a fractional Share be purchased.

 

  (d) The Company may require the Optionee to pay, prior to the delivery of any Shares to which such Optionee shall be entitled upon exercise of an Option, an amount equal to the federal, state and local income taxes and other amounts required by law to be withheld by the Company with respect to any Option. Such amount shall be paid (i) in cash or by certified or cashier’s check, (ii) by delivering to the Company a number of Shares (that have been owned without any restrictions by the Optionee for at least six months prior to the date of exercise of the Option or such other period as may be specified by the Committee) equal in value to the federal, state and local income taxes and other amounts required by law to be withheld by the Company with respect to any Option, or (iii) through a broker’s cashless exercise procedure approved by the Committee. Alternatively, the Optionee may authorize the Company to withhold from the number of Shares he or she would otherwise receive upon exercise of an Option that number of Shares having a Fair Market Value equal to the minimum required amount of such tax withholding obligation. Until the Company notifies the Optionee to the contrary, the form attached to this Agreement as Annex B shall be used to make such election pursuant to this Section 4(d).

 

  (e) Notwithstanding any other provision hereof or of the Plan, no portion of the Option shall be exercisable (i) after termination of the Option in accordance with the provisions hereof, (ii) after the Expiration Date hereof, or (iii) at any time unless all necessary regulatory or other approvals have been received.

 

5. Termination of Employment – for Cause . The Option (whether or not exercisable) shall terminate upon the Optionee’s Termination of Employment by the Company for Cause.

 

6.

Termination of Employment – Other than for Cause . Upon the Optionee’s Termination of Employment by the Company or one of its Affiliates or Subsidiaries other than for Cause, subject to the Optionee’s continued compliance with

 

4

 

Section 11 below and the execution and non-revocation of a general release in the Company’s favor, (i) all outstanding Options that were otherwise exercisable as of the Optionee’s Termination of Employment and (ii) a number of Options equal to the positive difference, if any, between (x) the number of Shares subject to this Agreement multiplied by a fraction, the numerator of which equals the number of full months, rounded down to the nearest whole month, elapsed from the Grant Date through the Optionee’s Termination of Employment and the denominator of which equals 60 and (y) the number of Shares subject to this Agreement that have previously vested, shall become exercisable as of the Optionee’s Termination of Employment and, in each case, shall remain exercisable for ninety days following the date of such Termination of Employment (but in no event later than the Expiration Date) and shall thereafter terminate. Any portion of the Option that had not yet become exercisable as of the Termination of Employment (excluding for this purpose any Options that otherwise become vested pursuant to clause (ii) of this Section 6) shall terminate immediately effective as of such date, with no payment made in consideration therefor.

 

7. Termination of Employment – Voluntary Termination . If the Optionee voluntarily terminates employment with the Company or an Affiliate (other than due to Retirement or Disability), subject to the Optionee’s continued compliance with Section 11 below and the execution and non-revocation of a general release in the Company’s favor, all outstanding Options that were otherwise exercisable as of the Optionee’s Termination of Employment shall remain exercisable for ninety days following the date of such Termination of Employment (but in no event later than the Expiration Date), and shall thereafter terminate. Any portion of the Option that had not yet become exercisable as of the Termination of Employment shall terminate immediately effective as of such date, with no payment made in consideration therefor.

 

8. Termination of Employment – Death . Upon the Optionee’s Termination of Employment as a result of death, all outstanding Options (whether or not exercisable) shall vest as of the Optionee’s Termination of Employment and shall remain exercisable through the Expiration Date.

 

9. Termination of Employment – Disability . If the Optionee’s Termination of Employment with the Company or an Affiliate is as a result of Disability, subject to the Optionee’s continued compliance with Section 11 below and the execution and non-revocation of a general release in the Company’s favor, all outstanding Options that were otherwise exercisable as of the Optionee’s Termination of Employment shall remain exercisable through the Expiration Date and, on the first anniversary of the Optionee’s Termination of Employment, all unvested Options shall become vested and shall remain exercisable through the Expiration Date.

 

10.

Termination of Employment – Retirement . Upon the Optionee’s Termination of Employment as a result of Retirement, subject to the Optionee’s continued compliance with Section 11 below and the execution and non-revocation of a general release in the Company’s favor, (i) all outstanding Options that were otherwise exercisable as of the Optionee’s Termination of Employment and (ii) a number of Options equal to the positive difference, if any, between (x) the number of Shares subject to this Agreement multiplied by a fraction, the numerator of which equals the number of full months, rounded down to the nearest whole month, elapsed from the Grant Date through the Optionee’s Termination of

 

5

 

Employment and the denominator of which equals 60 and (y) the number of Shares subject to this Agreement that have previously vested, shall become exercisable as of the Optionee’s Termination of Employment and, in each case, shall remain exercisable through the Expiration Date and shall thereafter terminate. Any portion of the Option that had not yet become exercisable as of the Termination of Employment (excluding for this purpose any Options that otherwise become vested pursuant to clause (ii) of this Section 10) shall terminate immediately effective as of such date, with no payment made in consideration therefor.

 

11. Optionee’s Covenants and Acknowledgements . In order to induce the Company to enter into this Agreement, the Optionee hereby covenants and acknowledges to the Company as follows:

(a) Non-Disclosure. The Optionee may not, during or subsequent to the Optionee’s employment with the Company or any of its Affiliates, without the prior written consent of the Company, use, divulge, disclose, or make accessible to any other person, firm, partnership, corporation or other entity any Confidential Information (as defined below) pertaining to the business of the Company or any of its Affiliates except (i) while employed by the Company or any of its Affiliates or Subsidiaries, in the business of and for the benefit of the Company or any of its Affiliates or Subsidiaries, or (ii) when required to do so by a court of competent jurisdiction or regulatory body. In the event that the Optionee becomes compelled by an order of a court to disclose any Confidential Information, the Optionee is required to provide the Company with prompt, prior written notice and to disclose only that portion of the Confidential Information which is legally required.

For purposes of this Agreement, “Confidential Information” shall mean any non-public information (whether oral, written or contained on computer systems) relating to the business or the affairs of the Company and its Affiliates or of any client of the Company or of any of its Affiliates, whether obtained from the Company or any of its Affiliates, any client of the Company or any of its Affiliates or known by the Optionee as a consequence of or through the Optionee’s relationship with the Company or any of its Affiliates, whether obtained before or after the Optionee executes this Agreement and whether obtained from an entity which was not a Company Affiliate at the time such information became available but which is now or later becomes an Affiliate of the Company. Such information includes but is not limited to non-public information concerning the financial data, strategic or financial plans, business plans, proprietary project information, marketing plans, future transactions (regardless of whether or not such transactions are executed), customer lists, employee lists, employees’ salary and other compensation, partners’ compensation, and other proprietary and confidential information of the Company, the Company’s Affiliates or any of their clients, that, in any case, is not otherwise available to the public. Confidential Information includes information encompassed in drawings, designs, plans, proposals, reports, research, marketing and sales plans, financial information, costs, quotations, specification sheets and recording media. Confidential Information also includes information which relates directly or indirectly to the computer systems and computer technology of the Company and its Affiliates, including but not limited to source codes, object codes, reports, flow charts, screens, algorithms, use manuals, installation and/or operation manuals, computer software, spreadsheets, data computations, formulas, techniques, databases, and any other form or compilation of computer-related information.

 

6

It is the policy of the Company not to use or accept any Confidential Information of third parties, including former employers of the Optionee. The Optionee shall not disclose such Confidential Information of third parties to the Company or any of its Affiliates, their employees, agents, or independent contractors, or to any other third party, and shall not use such Confidential Information of third parties while employed by the Company or any of its Affiliates, unless the Optionee has obtained and presented to the Company the appropriate authorizations for such use or disclosure from such third parties and has also obtained the Company’s approval of such use or disclosure.

The Company and its Affiliates may, from time to time, enter into agreements and/or business relationships with third party vendors and/or suppliers of information as a result of which the Optionee may have access to Confidential Information proprietary to such third parties (“Third Party Confidential Information”). The use and disclosure by the Optionee of Third Party Confidential Information shall be governed by the terms and conditions of this Agreement and shall be in strict compliance with any existing agreement between the Company or any of its Affiliates and the third parties to hold such information confidential. Prior to using any Third Party Confidential Information, the Optionee is required to inquire whether and to what extent the use of such Third Party Confidential Information is governed by an existing agreement.

The Company and its Affiliates may at times develop appropriate information barriers to assure that restricted information related to a client of the Company or an Affiliate of the Company is not improperly communicated or disclosed to other employees within the Company and its Affiliates. If the Optionee has reason to believe that he or she is subject to any information barrier, the Optionee is required to inquire of the human resources or compliance department as to the applicability and terms of any such information barrier.

The Optionee agrees that the Company is the exclusive owner of any business-related ideas, products, materials, discoveries, inventions, computer programs, research, writing or other work products developed by the Optionee that are in the scope of, or otherwise related to the business of the Company or its Affiliates. Whenever requested to do so by the Company, the Optionee shall execute any and all applications, assignments, or other instruments that the Company deems necessary to apply for and obtain patents or copyrights in the United States or any foreign country or otherwise protect the Company’s interest therein. Such obligations shall continue beyond the Optionee’s Termination of Employment with the Company with respect to business-related ideas, products, materials, discoveries, inventions, computer programs, research, writing or other work products developed, conceived or made by the Optionee during the term of the Optionee’s employment with the Company. Further, the Optionee agrees that such obligation will be binding on the Optionee’s assigns, executors, administrators and other legal representatives. The Optionee is required to return to the Company all Confidential Information (including all reproductions thereof whether on computer diskette or otherwise) furnished to or otherwise in their possession immediately upon request or their resignation or Termination of Employment.

(b) Non-Solicitation of Clients, etc. The Optionee shall not, for a period of one year immediately following the Termination of Employment, whether on his or her own behalf or on behalf of or in conjunction with any person, company,

 

7

business entity or other organization whatsoever, directly or indirectly, (i) call on, interfere with, solicit or assist in soliciting the business of any “Client” or “Prospective Client” or (ii) accept business from, or enter into a relationship with, any such “Client” or “Prospective Client”, with whom the Optionee has had personal contact or dealings on behalf of the Company or its Affiliates during the one year period immediately preceding his or her Termination of Employment or with whom employees reporting to the Optionee has had personal contact or dealings on behalf of the Company or its Affiliates during the one year period immediately preceding the Termination of Employment. Notwithstanding the foregoing, the Optionee may engage in business activities with “Intermediary Clients”, provided that the Optionee shall not (x) interact with any Intermediary Client with respect to business placed with or through such Intermediary Client by the Company or (y) engage in any conduct interfering with or damaging the Company’s relationship with any Intermediary Client.

For purposes of this Agreement, the term “Client” shall mean any person, firm, company, or other organization (including an Intermediary Client) to whom the Company or any of its Affiliates has supplied services, products or professional advice, and “Prospective Client” shall mean any person, firm, company or other organization (including an Intermediary Client) with whom the Company or any of its Affiliates has had negotiations or discussions regarding the possible supply of products or services, or with respect to whom the Company or any of its Affiliates has expended significant time, effort or money in developing a bid or proposal for the supply of service, products or advice; and “Intermediary Client” shall mean any person or entity (such as a broker dealer, distributor, financial adviser, administrator or other marketing or service organization) through which the Company offers, markets, distributes or provides its services, products or advice.

(c) Non-Enticement of Employees; No Hire. The Optionee shall not, during his or her employment and for a period of one year immediately following the Optionee’s Termination of Employment, either on his or her own account or in conjunction with or on behalf of any other person, company, business entity or other organization whatsoever, directly or indirectly (i) induce, solicit, entice or procure any person who is an employee of the Company or any of its Affiliates to leave such employment or (ii) accept into employment, hire or otherwise engage or use the services of, or actively interfere with the Company’s or any Affiliates’ relationship with, any person who is an employee of the Company or any of its Affiliates or who was an employee of the Company or any of its Affiliates during the period commencing one year prior to the Termination of Employment.

(d) Non-Disparagement; No Conflicts. The Optionee shall not at any time during or subsequent to the Optionee’s employment with the Company or any of its Affiliates, criticize, speak ill of, disparage or make false statements in respect of the Company, its Affiliates or any of their employees; provided, however, that the Optionee shall not be prohibited from making truthful statements about the Company or any of its Affiliates. The Optionee also shall not, during the course of employment with the Company or any of its Affiliates take any action which conflicts with (or appears to conflict with) the Company’s or any of its Affiliates’ business interests except if ordered to do so by a court or government agency.

(e) Enforceability; Injunction. The Company and the Optionee agree that in the event that any one or more of the terms and conditions set forth in this

 

8

Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining terms and conditions will not in any way be affected or impaired thereby. Moreover, if any one or more of the terms and conditions contained in this Agreement are held to be excessively broad as to duration, scope, activity or subject, such terms and conditions will be construed by limiting and reducing them so as to be enforceable to the maximum extent compatible with applicable law. The Optionee acknowledges and agrees that the Company’s remedies at law for a breach or threatened breach of any of the provisions of this Section 11 would be inadequate and, in recognition of this fact, the Optionee agrees that, in the event of such a breach or threatened breach, in addition to any remedies at law, the Company, without posting any bond, shall be entitled to obtain equitable relief in the form of specific performance, temporary restraining order, a temporary or permanent injunction or any other equitable remedy which may then be available.

 

12. Forfeiture . In the event of any breach by the Optionee of the Company’s Confidentiality and Employment Policy, as it may be amended from time to time (the “Confidentiality Policy”), or the provisions of Section 11 by the Optionee, the Company shall have the right, if such conduct or activity occurs within one year following the most recent date upon which Shares are delivered to the Optionee, to require the Optionee to repay to the Company the positive difference between the Fair Market Value of the Shares and the Option Exercise Price. Such repayment obligation shall be effective as of the date specified by the Committee. Any repayment obligation may be satisfied in Shares or cash or a combination thereof (based upon the Fair Market Value of Shares on the day of payment), and the Committee may provide for an offset to any future payments owed by the Company or any Subsidiary or Affiliate to the Optionee, if necessary, to satisfy the repayment obligation. The determination of whether the Optionee has engaged in a breach of the Confidentiality Policy or Section 11 shall be determined by the Committee in its sole discretion.

 

13. Incorporation by Reference . The obligation of the Company to deliver any Shares upon exercise of an Option under this Agreement is specifically subject to all provisions of the Plan and all applicable laws, rules, regulations and governmental and stockholder approvals

 

14. Transferability . This Agreement is personal to Optionee, is non-assignable and is not transferable in any manner, by operation of law or otherwise, other than by will or by the laws of descent and distribution, and is exercisable, during Optionee’s lifetime, only by Optionee or his or her guardian or legal representative.

 

15. Notice . Any notice by the Optionee to the Company hereunder shall be in writing and shall be deemed duly given only upon receipt thereof by the Company at its principal offices. Any notice by the Company to the Optionee shall be in writing and shall be deemed duly given if mailed to the Optionee at the address last specified to the Company by the Optionee.

 

16. Amendment . This Agreement may be amended or modified at any time only by an instrument in writing signed by each of the parties hereto.

 

9

17. Binding; Successors . This Agreement shall apply to and bind the Optionee and the Company and their respective permitted assignees and transferees, heirs, legatees, executors, administrators and legal successors.

 

18. Headings . The headings of sections herein are included solely for convenience of reference and shall not affect the meaning or interpretation of any of the provisions hereof.

 

19. Governing Law . The validity and construction of this Agreement shall be governed by the laws of the State of Delaware (excluding any conflict of law, rule or principle of Delaware law that might refer the governance, construction or interpretation of this Agreement to the laws of another state).

 

20. Notices . Any notice required or permitted to be given under the Agreement shall be in writing and shall be deemed to have been given when delivered personally or by courier, or sent by certified or registered mail, postage prepaid, return receipt requested, duly addressed to the party concerned at the address indicated below or to such changed address as such party may subsequently by similar process give notice of:

If to the Company:

BlackRock, Inc.

40 E. 52 nd Street

New York, New York 10022

Attn: Robert Connolly, General Counsel

If to the Optionee:

To the last address delivered to the Company by the Optionee in the manner set forth herein.

 

21. Entire Agreement . The Agreement and the Plan constitute the entire agreement among the parties relating to the subject matter hereof, and any previous agreement or understanding among the parties with respect thereto is superseded by this Agreement and the Plan.

 

22. Counterparts . This Agreement may be executed in two counterparts, each of which shall constitute one and the same instrument.

*    *    *    *    *

This Agreement is made under and subject to the provisions of the Plan, and all of the provisions of the Plan are hereby incorporated herein as provisions of this Agreement. If there is a conflict between the provisions of this Agreement and the provisions of the Plan, the provisions of the Plan will govern.

 

10

IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by a duly authorized representative and the Optionee has hereunto set his hand as of the Grant Date.

 

BLACKROCK, INC.
By:     
  Name:  
  Title:  
OPTIONEE
  
Name (Please Print)
  
Signature                                                              Date

 

11

Annex A

BLACKROCK, INC.

OPTION EXERCISE NOTICE

NOTE: A Tax Election Form (Annex B) must be submitted with this Notice of Exercise. A Separate Annex A must be submitted for each option grant being exercised.

I, the undersigned Optionee, pursuant to the BlackRock, Inc. (“BlackRock”) 1999 Stock Award and Incentive Plan (the “Plan”) and the provisions of the Option Agreement dated ________________, after taking into account all prior exercises (if any) and all required adjustments set forth in Section 5 of the Plan, hereby irrevocably elect to exercise the foregoing option grant as set forth below:

If this option exercise is being completed through Brokerage Service/Margin Account pursuant to the “cashless option exercise” procedure under Regulation T of the Federal Reserve Board, please check here ___.

OPTIONS EXERCISED:

 

Number of options being exercised:

  _____________

Total exercise price (number of options exercised x exercise price of options granted) at $ ___________ per share: $ _____________

FORM OF PAYMENT:

Payment of the total exercise price must be delivered by you or your broker together with this Annex A at the time of exercise . The options will be considered exercised only upon receipt of the payment of the exercise price by BlackRock. The total exercise price consists of the following (check all that apply):

 

(A)  ¨ Payment by remittance of cash or certified or cashier’s check made payable to “BlackRock, Inc.” in the amount of $                      .

 

(B)  ¨ Payment by broker’s cashless option exercise procedure in the amount of $                      .

Brokerage Firm: _______________________________________________________

Name of Broker Representative: ___________________________________________

Phone number: ________________________________________________________

Account Number (if known): _____________________________________________

Wire transfers in immediately available funds of the total exercise price should be directed to:

BlackRock, Inc.

Chase Manhattan Bank

Account No. 967-980593

ABA No. 021-000-021

Reference - Stock Option Exercise

 

(C)  ¨ Payment by tender of unrestricted shares of BlackRock common stock held by you for at least 6 months following the lapse of any restrictions.

 

Certificate Number(s)

 

Number of Shares

 

Certificate Number(s)

 

Number of Shares

     
     
     
     

I acknowledge and agree that I am restricted from purchasing or selling BlackRock securities except during the window periods stated in the BlackRock Insider Trading Policy as periodically announced by the BlackRock Legal and Compliance Department. In addition, pursuant to the BlackRock Advisory Employee Investment Transaction Policy, I must obtain prior approval of all purchases and sales of BlackRock securities, including option exercises and tenders of unrestricted BlackRock common stock, in payment for the exercise of options. If you have any questions regarding the BlackRock Insider Trading Policy or the BlackRock Advisory Employee Investment Transaction Policy, please contact a member of the Legal and Compliance Department.

Contact Peter Swetz at (212) 810-3122 before the anticipated exercise date if BlackRock common stock will be used for payment. An attestation procedure is available which can avoid the need for physical delivery of share certificates.

 

¨ Please deliver my shares to the brokerage account indicated above.

or

¨ Please register and deliver a physical certificate                           Requested Denomination of Certificate(s): ___________

         from this exercise as follows:

 

Name:                                                                                                          Address:                                                                                                 
         
(if multiple, state legal title: e.g., JTROS)    

Remit this Option Exercise Form, along with the Transaction Approval Notification sent via e-mail by the BlackRock Legal and Compliance Department and the Tax Election Form (Annex B), to Peter Swetz by 5:00 p.m. on the date of exercise.

 

Name (Print):                                                                                                Social Security Number:                                                                     
       Telephone Number:                                                                               
Signature of Optionee                                                             Date      
      
    Company Signature                                Receipt Date

Annex B

BLACKROCK, INC.

STOCK OPTION

TAX ELECTION FORM

NOTE: If more than one Annex A is attached, this Annex B will apply to all option exercises unless you make special arrangements.

Withholding and reporting are required on the taxable income resulting from your exercise of this Option. The taxable income is the excess of the average of the high and low sales prices of the shares acquired pursuant to the option on the date the Option Exercise Notice is accepted by BlackRock, Inc. (“BlackRock”) over the exercise price. You or your broker will be notified of the taxes due on the exercise of your options after delivery of this Annex B. Settlement proceeds will not be delivered until the withholding amount has been collected from you or your broker.

I. Calculation of Estimated Withholding Tax:

Taxes will be calculated by using applicable FICA, state, local and other tax rates based on your bi-weekly payroll tax withholdings. However, please indicate below if you would like to withhold more than the required minimum federal income tax withholding (currently % in 200 ), not to exceed the maximum marginal tax rate, currently 35.0%; otherwise, you do not need to complete this section. If you elect to satisfy the withholding obligation by having BlackRock withhold the sufficient number of shares otherwise issuable upon exercise of the options, BlackRock may not withhold more shares than are necessary to satisfy the minimum required federal income tax withholding. (NOTE: If you wish to increase your federal income tax withholding rate above the minimum rate and you check box III (B), you must also check and complete box III (A) and/or III (D) to satisfy the amount of increased withholding you have chosen.) The calculation of estimated tax withholding section below is for your use only.

FOR YOUR USE ONLY

Federal tax              % (between [    ]% and 35.0%)*

State tax              %

FICA tax              %

Medicare tax              %

Local tax              %

Total Tax Rate              %

FOR YOUR USE ONLY

Estimated Fair Market Value Per Share** $                     

(less) Option Exercise Price Per Share     $                     

(equals) Taxable Amount Per Share     $                     

(times) Number of Options Exercised     $                     

(equals) Estimated Taxable Income     $                     

Estimated Taxable Income $                      x Total Tax Rate          % = Estimated Tax Withholding $                      .

 

* IF YOU INCREASE THE WITHHOLDING RATE ABOVE 27% AND PLAN TO CHECK BOX III (B), PLEASE SEE THE IMPORTANT NOTE IMMEDIATELY ABOVE

 

** The closing price of a share of BlackRock common stock on the day prior to exercise.

II. Form of Payment of Estimated Withholding Tax You or your broker will be notified of the taxes due on the exercise of your options after delivery of this Annex B. Settlement proceeds will not be delivered until the withholding amount has been collected from you or your broker. Once notified, payment of the estimated withholding tax will consist of (check all that apply):

 

(A)  ¨ Payment by remittance of cash or certified or cashier’s check made payable to “BlackRock, Inc.” in the amount of $                      .

 

(B)  ¨ Payment by withholding of the sufficient number of shares otherwise issuable upon exercise of the options. (NOTE: if you use this method, we may not withhold more shares than are necessary to satisfy the required minimum federal income tax withholding.)

 

(C)  ¨ Payment by broker’s cashless exercise procedure in the amount of $                      .

Brokerage Firm:                                                                                     

Name of Broker Representative:                                                          

Phone number:                                                                                       

Account Number (if known):                                                               

Wire transfers in immediately available funds of the tax-withholding amount should be directed to:

BlackRock, Inc.

Chase Manhattan Bank

Account No. 967-980593

ABA No. 021-000-021

Reference - Stock Option Exercise

(D)  ¨ Payment by tender of unrestricted shares of BlackRock common stock held by you for at least 6 months following the lapse of any restrictions.

 

Certificate Number(s)

  

Number of Shares

  

Certificate Number(s)

  

Number of Shares

________________    ________________    ________________    ________________
________________    ________________    ________________    ________________
________________    ________________    ________________    ________________
________________    ________________    ________________    ________________

You are restricted from purchasing or selling BlackRock securities except during the window periods stated in the BlackRock Insider Trading Policy as periodically announced by the BlackRock Compliance Department. In addition, pursuant to the BlackRock Advisory Employee Investment Transaction Policy, you must obtain prior approval of all purchases and sales of BlackRock securities, including option exercises and tenders of unrestricted BlackRock common stock, in payment for the exercise of options. If you have any questions regarding the BlackRock Insider Trading Policy or the BlackRock Advisory Employee Investment Transaction Policy, please contact a member of the Legal and Compliance Department.

Contact Peter Swetz at (212) 810-3122 before the anticipated exercise date if BlackRock common stock will be used for payment. An attestation procedure is available which can avoid the need for physical delivery of share certificates.

Remit this Tax Election Form, along with the Transaction Approval Notification sent via e-mail by the BlackRock Legal and Compliance Department and the Option Exercise Form (Annex A), to Peter Swetz by 5:00 p.m. on the date of exercise.

 

Name (Print):          Social Security Number:     
         
Signature of Optionee                                              Date     Company Signature                                         Receipt Date

 

16

Exhibit 10.6

BLACKROCK, INC.

1999 STOCK AWARD AND INCENTIVE PLAN

RESTRICTED STOCK AGREEMENT

 

Name of Grantee :    ___________________
Restricted Stock :    ___________________ shares of Class A Common Stock, $0.01 par value, of BlackRock, Inc. (the “Shares”)
Grant Date :    January 21, 2005
Dates Upon Which   
Restrictions Lapse :    33.3% of the Shares, on December 15, 2005
   33.3% of the Shares, on December 15, 2006
   33.4% of the Shares, on December 15, 2007

*     *     *     *     *     *     *     *

This Restricted Stock Agreement (this “Agreement”) is executed and delivered as of the Grant Date set forth above by and between BlackRock, Inc., a Delaware company, and its successors (the “Company”) and the Grantee set forth above. The Grantee and the Company hereby agree as follows:

 

1. Definitions . For all purposes in this Agreement, the following terms shall have the respective meanings set forth in this Section 1.

(a) “Acceleration Event” shall occur if (i), at the sole discretion of the Company’s Incumbent Management Committee, upon the vote of a majority of the Incumbent Management Committee to accelerate the Company’s 2002 Long-Term Retention and Incentive Plan, which vote shall occur six months following the Termination of Employment of the Chief Executive Officer of the Company for Deficient Opportunity or by the Company other than for Cause, death or Disability, if, within 60 days following such termination, a successor chief executive officer of the Company fails to assume office who is either (A) a member of the Incumbent Management Committee or (B) a person approved by a majority of the Incumbent Management Committee, or (ii) any stock options granted under the Plan shall vest and become fully vested pursuant to Section 3.3(b)(1) of the Initial Public Offering Agreement made and entered into as of September 30, 1999, by and among The PNC Financial Services Group, Inc. (“PNC”), PNC Bancorp, Inc. (as successor to PNC Asset Management, Inc.), a Delaware corporation and an indirect wholly owned subsidiary of PNC, and the Company, as amended (the “IPO Agreement”). For purposes of clause (ii), if no stock options are outstanding under the Plan, but if such options had been outstanding and would have become vested and exercisable pursuant to Section 3.3(b)(1) of the IPO Agreement, then an Acceleration Event shall be deemed to have occurred.

(b) “Affiliate” means any corporation, partnership, joint venture, association, organization or other person or entity that is directly or indirectly through one or more intermediaries, controlling, controlled by or under common control with the person or entity specified.

(c) “Cause” means (i) “Cause” as defined in any Individual Agreement, or (ii) if there is no such Individual Agreement or if such Individual Agreement does not define “Cause”: (A) a material breach by the Grantee of any written policies of the Company or any Affiliate required by law or established to maintain compliance with applicable law; (B) any act of fraud, misappropriation, dishonesty, embezzlement or similar conduct by the Grantee against the Company or any Affiliate or any client of the Company or an Affiliate; (C) conviction (including a plea of nolo contendere) of the Grantee for the commission of a felony that could, in the Company’s reasonable judgment, impair the Grantee’s ability to perform his or her duties or adversely affect the Company’s or any Affiliate’s business or reputation; or (D) entry of any order against the Grantee by any governmental body having regulatory authority with respect to the Company’s or any Affiliate’s business, which order relates to or arises out of the Grantee’s employment or service relationship with the Company or any Affiliate.

(d) “Committee” means the Compensation Committee of the Board of Directors of the Company.

(e) “Deficient Opportunity” means (i) “Deficient Opportunity” as defined in any Individual Agreement for the Chief Executive Officer, or (ii) if there is no such Individual Agreement or if such Individual Agreement does not define “Deficient Opportunity,” without the written consent of the Chief Executive Officer: (x) any action by the Company which results in a material diminution in the Chief Executive Officer’s position (including status, offices, titles and reporting requirements), authority, duties or responsibilities, excluding for this purpose any action not taken in bad faith and which is remedied by the Company promptly after receipt of notice given by the Chief Executive Officer; (y) any failure by the Company to provide to the Chief Executive Officer any compensation and benefits to which the Chief Executive Officer is entitled, other than a failure not occurring in bad faith and which is remedied by the Company promptly after receipt of notice thereof given by the Chief Executive Officer; or (z) the Company’s requiring the Chief Executive Officer to be based in any city other than the city in which the Chief Executive Officer is employed at the commencement of the Chief Executive Officer’s tenure as Chief Executive Officer. The Chief Executive Officer’s mental or physical incapacity following the occurrence of an event described above in any of clauses (x), (y) or (z) shall not affect the Chief Executive Officer’s ability to terminate employment for Deficient Opportunity. The Chief Executive Officer shall be entitled to such additional procedural protections as may be provided in any Individual Agreement.

(f) “Disability” means (i) “Disability” as defined in any Individual Agreement, or (ii) if there is no Individual Agreement or the Individual Agreement does not define Disability, the Grantee’s physical or mental incapacity constituting disability, as determined under the Company’s Long-Term Disability Plan applicable to the Grantee, which, in any event, does or is reasonably expected to continue for at least six months.

(g) “Fair Market Value” means, as of a particular date, (i) the closing sales price per Share on the national securities exchange on which Shares are principally traded for the last preceding date on which there was a sale of Shares on such exchange, or (ii) if Shares are then

 

2

traded in an over-the-counter market, the average of the closing bid and asked per Share in such over-the-counter market for the last preceding date on which there was a sale of Shares in such market, or (iii) if Shares are not then listed on a national securities exchange or traded in an over-the-counter market, the fair market value of a Share shall be determined by a nationally recognized investment banking firm selected by the Committee for such purpose.

(h) “Incumbent Management Committee” means the Management Committee of the Company as it existed at such time as (i) the condition or event giving rise to the Chief Executive Officer’s termination of employment for Deficient Opportunity arose or (ii) the Chief Executive Officer’s termination of employment other than for Cause, death or Disability occurs.

(i) “Individual Agreement” means an employment, consulting or similar agreement between a Grantee and the Company or any Subsidiary or Affiliate of the Company.

(j) “Management Committee” means that committee consisting of (i) the Chief Executive Officer of the Company, (ii) the president of the Company and (iii) not less than five managing directors of the Company designated from time to time by the Chief Executive Officer of the Company and the president of the Company to serve on such committee.

(k) “Plan” shall mean the 1999 Stock Award and Incentive Plan, as amended.

(l) “Retirement” means retirement, as the Committee shall determine from time to time.

(m) “Subsidiary” means any corporation, partnership, joint venture or other entity during any period in which at least a 50% voting or profits interest is owned, directly or indirectly, by the Company or any successor to the Company.

(n) “Termination of Employment” means the termination of an individual’s employment with, or performance of services for, the Company or any Subsidiary or Affiliate. An individual employed by, or performing services for, any Subsidiary or an Affiliate also shall be deemed to incur a Termination of Employment if the Subsidiary or Affiliate ceases to be a Subsidiary or Affiliate, as the case may be, and the individual does not immediately thereafter become an employee of, or service-provider for, the Company or another Subsidiary or Affiliate. Temporary absences from employment because of illness, vacation or leave of absence and transfers among the Company and any Subsidiary or Affiliate shall not be considered Terminations of Employment.

In addition, certain other terms used herein have definitions given to them in the first place in which they are used.

 

2. Grant . The Company, pursuant to the Plan, which is incorporated herein by reference, and subject to the terms and conditions thereof, grants to the Grantee as of the Grant Date the above-mentioned Shares.

 

3.

Restricted Period . From the Grant Date until the date on which the restrictions applicable to Shares shall lapse (each such period, a “Restricted Period”) as indicated above, the Grantee may not sell, assign, transfer, donate, pledge or otherwise dispose of Shares subject to a Restricted Period. Following the lapse of each Restricted Period, the

 

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Shares that are no longer restricted will be delivered to the Grantee on or promptly following such date.

 

4. Termination of Employment . The Restricted Period shall immediately lapse if Grantee’s Termination of Employment is by reason of death, Disability, Retirement, or if Grantee incurs a Termination of Employment as a result of a termination by the Company, the Affiliate or the Subsidiary, as applicable, of his employment without Cause. All Shares held by the Grantee subject to a Restricted Period shall otherwise be forfeited upon the Grantee’s Termination of Employment for any other reason.

 

5. Voting; Dividends . During the Restricted Period, the Grantee shall have the right to vote Shares and to receive any dividends or distributions paid on such Shares.

 

6. Withholding and Other Taxes . The Grantee may be required to make arrangements satisfactory to the Company or the applicable Affiliate or Subsidiary to enable it to satisfy withholding taxes and other tax obligations relating to the Shares and any amounts or property paid with respect thereto. Payment of such requirements may be made (i) in cash, (ii) by the Company retaining or not issuing such number of Shares as have a Fair Market Value at the time the Grantee becomes subject to income tax equal to the minimum necessary amount of tax to be withheld, or (iii) any combination of (i) and (ii) above.

 

7. Acceleration Events . Notwithstanding any other provision of the Plan or this Agreement to the contrary, any restrictions applicable to the Shares shall lapse and the Shares shall be fully vested upon the occurrence of an Acceleration Event.

 

8. Grantee’s Covenants and Acknowledgements . In order to induce the Company to enter into this Agreement, Grantee hereby covenants and acknowledges to the Company as follows:

(a) Non-Disclosure. Grantee may not, during or subsequent to Grantee’s employment with the Company or any of its Affiliates, without the prior written consent of the Company, use, divulge, disclose, or make accessible to any other person, firm, partnership, corporation or other entity any Confidential Information (as defined below) pertaining to the business of the Company or any of its Affiliates except (i) while employed by the Company or any of its Affiliates, in the business of and for the benefit of the Company or any of its Affiliates, or (ii) when required to do so by a court of competent jurisdiction. In the event that Grantee becomes compelled by an order of a court to disclose any Confidential Information, Grantee is required to provide the Company with prompt, prior written notice and to disclose only that portion of the Confidential Information which is legally required.

For purposes of this Agreement, “Confidential Information” shall mean any non-public information (whether oral, written or contained on computer systems) relating to the business or the affairs of the Company and its Affiliates or of any client of the Company or of any of its Affiliates, whether obtained from the Company or any of its Affiliates, any client of the Company or any of its Affiliates or known by the Grantee as a consequence of or through the Company or any of its Affiliates. Such information includes but is not limited to non-public information concerning the financial data, strategic or financial

 

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plans, business plans, proprietary project information, marketing plans, future transactions (regardless of whether or not such transactions are executed), customer lists, employee lists, employees’ salary and other compensation, partners’ compensation, and other proprietary and confidential information of the Company, the Company’s Affiliates or any of their clients, that, in any case, is not otherwise available to the public. Confidential Information includes information encompassed in drawings, designs, plans, proposals, reports, research, marketing and sales plans, financial information, costs, quotations, specification sheets and recording media. Confidential Information also includes information which relates directly or indirectly to the computer systems and computer technology of the Company and its Affiliates, including but not limited to source codes, object codes, reports, flow charts, screens, algorithms, use manuals, installation and/or operation manuals, computer software, spreadsheets, data computations, formulas, techniques, databases, and any other form or compilation of computer-related information.

It is the policy of the Company not to use or accept any Confidential Information of third parties, including former employers of the Grantee. Grantee shall not disclose such Confidential Information of third parties to the Company or any of its Affiliates, their employees, agents, or independent contractors, or to any other third party, and shall not use such Confidential Information of third parties while employed by the Company or any of its Affiliates, unless the Grantee has obtained and presented to the Company the appropriate authorizations for such use or disclosure from such third parties and has also obtained the Company’s approval of such use or disclosure.

The Company and its Affiliates may, from time to time, enter into agreements and/or business relationships with third party vendors and/or suppliers of information as a result of which Grantee may have access to Confidential Information proprietary to such third parties (“Third Party Confidential Information”). The use and disclosure by the Grantee of Third Party Confidential Information shall be governed by the terms and conditions of this Agreement and shall be in strict compliance with any existing agreement between the Company or any of its Affiliates and the third parties to hold such information confidential. From time to time, the Company and/or its Affiliates enter into such agreements with third parties. Prior to using any Third Party Confidential Information, Grantee is required to inquire whether and to what extent the use of such Third Party Confidential Information is governed by an existing agreement.

The Company and its Affiliates may at times develop appropriate Chinese Wall policies and procedures (“Chinese Wall Policy”) to assure that restricted information related to a client of the Company or an Affiliate of the Company is not improperly communicated or disclosed to other employees within the Company and its Affiliates. Grantee is required to inquire of the human resources or compliance department, whether they are subject to a Chinese Wall Policy.

Grantee agrees that the Company is the exclusive owner of any business-related ideas, products, materials, discoveries, inventions, computer programs, research, writing or other work products developed by the Grantee that are in the scope of, or otherwise related to the business of the Company or its Affiliates. Whenever requested to do so by the Company, Grantee shall execute any and all applications, assignments, or other instruments that the Company deems necessary to apply for and obtain patents or

 

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copyrights in the United States or any foreign country or otherwise protect the Company’s interest therein. Such obligations shall continue beyond Grantee’s Termination of Employment with the Company with respect to business-related ideas, products, materials, discoveries, inventions, computer programs, research, writing or other work products developed, conceived or made by Grantee during the term of the Grantee’s employment with the Company. Further, Grantee agrees that such obligation will be binding on Grantee’s assigns, executors, administrators and other legal representatives. Grantee is required to return to the Company all Confidential Information (including all reproductions thereof whether on computer diskette or otherwise) furnished to or otherwise in their possession immediately upon request or their resignation or Termination of Employment.

(b) Non-Solicitation of Clients, etc. Grantee shall not, for a period of one year immediately following the Termination of Employment, whether on his or her own behalf or on behalf of or in conjunction with any person, company, business entity or other organization whatsoever, directly or indirectly, ( i ) call on, interfere with, solicit or assist in soliciting the business of any “Client” or “Prospective Client” or ( ii ) accept business from, or enter into a relationship with, any such “Client” or “Prospective Client”, with whom the Grantee has had personal contact or dealings on behalf of the Company or its Affiliates during the one year immediately preceding his or her Termination of Employment or with whom employees reporting to the Grantee has had personal contact or dealings on behalf of the Company or its Affiliates during the one year immediately preceding the Termination of Employment.

For purposes of this Agreement, the term “Client” shall mean any person, firm, company, or other organization to whom the Company or any of its Affiliates has supplied services, products or professional advice, and “Prospective Client” shall mean any person, firm, company or other organization with whom the Company or any of its Affiliates has had negotiations or discussions regarding the possible supply of products or services, or with respect to whom the Company or any of its Affiliates has expended significant time, effort or money in developing a bid or proposal for the supply of products or services.

(c) Non-Enticement of Employees; No Hire. Grantee shall not, during his or her employment and for a period of one (1) year following the termination of such employment, either on his or her own account or in conjunction with or on behalf of any other person, company, business entity or other organization whatsoever, directly or indirectly (i) induce, solicit, entice or procure any person who is an employee of the Company or any of its Affiliates to leave such employment or (ii) accept into employment, hire or otherwise engage or use the services of, or actively interfere with the Company’s or any Affiliates’ relationship with, any person who is an employee of the Company or any of its Affiliates or who was an employee of the Company or any of its Affiliates during the period commencing one (1) year prior to the Termination of Employment.

(d) Non-Disparagement; No Conflicts. Grantee shall not at any time during or subsequent to his or her employment with the Company or any of its Affiliates, criticize, speak ill of, disparage or make false statements in respect of the Company, its Affiliates or any of their employees; provided, however, that the Grantee shall not be prohibited from making truthful statements about the Company or any of its Affiliates. The

 

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Grantee also shall not, during the course of employment with the Company or any of its Affiliates take any action which conflicts with (or appears to conflict with) the Company’s or any of its Affiliates’ business interests except if ordered to do so by a court or government agency.

(e) Enforceability. The Company and the Grantee agree that in the event that any one or more of the terms and conditions set forth in this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining terms and conditions will not in any way be affected or impaired thereby. Moreover, if any one or more of the terms and conditions contained in this Agreement are held to be excessively broad as to duration, scope, activity or subject, such terms and conditions will be construed by limiting and reducing them so as to be enforceable to the maximum extent compatible with applicable law.

 

9. Forfeiture . In the event of any breach by the Grantee of the Company’s Confidentiality and Employment Policy, as it may be amended from time to time (the “Confidentiality Policy”), or the provisions of Section 8 by the Grantee, the Company shall have the right, if such conduct or activity occurs within one year following the most recent date upon which restrictions on Shares lapse, to require the Grantee to repay to the Company the value of the Shares (based on the Fair Market Value of the Shares on each date upon which the restrictions lapsed, including for this purpose accelerated vesting pursuant to Section 4 or 7). Such repayment obligation shall be effective as of the date specified by the Committee. Any repayment obligation may be satisfied in common stock of the Company or cash or a combination thereof (based upon the Fair Market Value of the common stock of the Company on the day of payment), and the Committee may provide for an offset to any future payments owed by the Company or any Subsidiary or Affiliate to the Grantee, if necessary, to satisfy the repayment obligation. The determination of whether a Grantee has engaged in a breach of the Confidentiality Policy or Section 8 shall be determined by the Committee in its sole discretion. Upon the occurrence of an Acceleration Event, the provisions of this Section 9 shall be inapplicable to the Grantee.

 

10. Incorporation by Reference . The obligation of the Company to deliver any stock under this Agreement is specifically subject to all provisions of the Plan and all applicable laws, rules, regulations and governmental and stockholder approvals.

 

11. Notice . Any notice by the Grantee to the Company hereunder shall be in writing and shall be deemed duly given only upon receipt thereof by the Company at its principal offices. Any notice by the Company to the Grantee shall be in writing and shall be deemed duly given if mailed to the Grantee at the address last specified to the Company by the Grantee.

 

12. Amendment . This Agreement may be amended or modified at any time only by an instrument in writing signed by each of the parties hereto.

 

13. Binding; Successors . This Agreement shall apply to and bind the Grantee and the Company and their respective permitted assignees and transferees, heirs, legatees, executors, administrators and legal successors.

 

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14. Headings . The headings of sections herein are included solely for convenience of reference and shall not affect the meaning or interpretation of any of the provisions hereof.

 

15. Governing Law . The validity and construction of this Agreement shall be governed by the laws of the State of Delaware (excluding any conflict of law, rule or principle of Delaware law that might refer the governance, construction or interpretation of this Agreement to the laws of another state).

 

16. Notices . Any notice required or permitted to be given under the Agreement shall be in writing and shall be deemed to have been given when delivered personally or by courier, or sent by certified or registered mail, postage prepaid, return receipt requested, duly addressed to the party concerned at the address indicated below or to such changed address as such party may subsequently by similar process give notice of:

If to the Company:

BlackRock, Inc.

40 E. 52nd

New York, New York 10022

Attn: Robert Connolly, General Counsel

If to the Grantee:

To the last address delivered to the Company by the Grantee in the manner set forth herein.

 

17. Entire Agreement . The Agreement and the Plan constitute the entire agreement among the parties relating to the subject matter hereof, and any previous agreement or understanding among the parties with respect thereto is superseded by this Agreement and the Plan.

 

18. Counterparts . This Agreement may be executed in two counterparts, each of which shall constitute one and the same instrument.

*    *    *    *    *    *

This Agreement is made under and subject to the provisions of the Plan, and all of the provisions of the Plan are hereby incorporated herein as provisions of this Agreement. If there is a conflict between the provisions of this Agreement and the provisions of the Plan, the provisions of the Plan will govern.

 

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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by a duly authorized representative and the Grantee has hereunto set his hand as of the Grant Date.

 

BLACKROCK, INC.
By:     
  Name:
  Title:   

 

GRANTEE
  
Name (Please Print)
  
Signature                                                              Date

 

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Exhibit 10.7

BLACKROCK, INC.

1999 STOCK AWARD AND INCENTIVE PLAN

RESTRICTED STOCK UNIT AGREEMENT

 

Name of Grantee :   
Restricted Stock Units :    Covering [             ] shares of Class A Common Stock, $0.01 par value, of BlackRock, Inc. (the “Shares”).
Pricing Date :    [            ]
Price :   
Vesting Dates :   

First Installment:[             ] RSUs, on [            ]

 

Second Installment:[             ] RSUs, on [            ]

 

Third Installment:[             ] RSUs, on [            ]

Except as noted below, the Restricted Stock Units granted pursuant to this Agreement (the “RSUs”) will be converted into Shares on each Vesting Date or the next following Business Day if the Vesting Date is not a Business Day. Subject to Section 11, once an RSU vests, it shall be nonforfeitable.

*             *             *             *             *             *             *             *

This Restricted Stock Unit Agreement (this “Agreement”) is executed and delivered as of the date hereof set forth above by and between BlackRock, Inc., a Delaware company, and its successors (the “Company”) and the Grantee set forth above. The Grantee and the Company hereby agree as follows:

 

1. Definitions . For all purposes in this Agreement, the following terms shall have the respective meanings set forth in this Section 1.

 

  (a) “Affiliate” means any corporation, partnership, joint venture, association, organization or other person or entity that is directly or indirectly through one or more intermediaries, controlling, controlled by or under common control with the person or entity specified.

 

  (b) “Business Day” means any day other than Saturday, Sunday or any other day on which banks in the State of New York are required by law to be closed.

 

  (c)

“Cause” means (i) “Cause” as defined in any Individual Agreement, or (ii) if there is no such Individual Agreement or if such Individual Agreement does not define “Cause”: (A) a material breach by the Grantee of any written policies of the

 

Company or any Affiliate required by law or established to maintain compliance with applicable law or any breach of Section 10 of this Agreement; (B) any act of fraud, misappropriation, dishonesty, embezzlement or similar conduct by the Grantee against the Company or any Affiliate or any client of the Company or an Affiliate; (C) conviction (including a plea of nolo contendere) of the Grantee for the commission of a felony that could, in the Company’s reasonable judgment, impair the Grantee’s ability to perform his or her duties or adversely affect the Company’s or any Affiliate’s business or reputation; or (D) entry of any order against the Grantee by any governmental body having regulatory authority with respect to the Company’s or any Affiliate’s business, which order relates to or arises out of the Grantee’s employment or service relationship with the Company or any Affiliate. Unless otherwise provided in an Individual Agreement with respect to for Cause terminations, a determination of Cause only may be made by the Company’s Chief Executive Officer.

 

  (d) “Code” means the Internal Revenue Code of 1986, as amended.

 

  (e) “Committee” means the Compensation Committee of the Board of Directors of the Company.

 

  (f) “Disability” means (i) “Disability as defined in any Individual Agreement, or (ii) if there is no Individual Agreement or the Individual Agreement does not define Disability, the Grantee’s physical or mental incapacity constituting disability, as determined under the Company’s Long-Term Disability Plan applicable to the Grantee, which, in any event, does or is reasonably expected to continue for at least twelve months.

 

  (g) “Fair Market Value” means, as of a particular date, (i) the closing sales price per Share on the national securities exchange on which Shares are principally traded for the last preceding date on which there was a sale of Shares on such exchange, or (ii) if Shares are then traded in an over-the-counter market, the average of the closing bid and asked per Share in such over-the-counter market for the last preceding date on which there was a sale of Shares in such market, or (iii) if Shares are not then listed on a national securities exchange or traded in an over-the-counter market, the fair market value of a Share shall be determined by a nationally recognized investment banking firm selected by the Committee for such purpose.

 

  (h) “Individual Agreement” means an employment, consulting or similar agreement between the Grantee and the Company or any Subsidiary or Affiliate of the Company.

 

  (i) “Plan” means the 1999 Stock Award and Incentive Plan, as amended.

 

  (j)

“Retirement” means the Grantee’s voluntary Termination of Employment other than for Cause after the Grantee has satisfied the Rule of 65 with at least the age of 55 and a total of at least three years of combined and continuous employment with the Company or any Subsidiary, provided, that the Grantee shall have provided written notice to the Company at least one year prior to such

 

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Termination of Employment.

 

  (k) “Rule of 65” means the sum of the Grantee’s age and years of combined and continuous years of employment with the Company or any Subsidiary or Affiliate (including periods of employment with an entity prior to its becoming a Subsidiary or Affiliate) equals at least sixty-five (65). For purposes of determining Rule of 65, years of age and service equal full years and completed months.

 

  (l) “Subsidiary” means any corporation, partnership, joint venture or other entity during any period in which at least a 50% voting or profits interest is owned, directly or indirectly, by the Company or any successor to the Company.

 

  (m) “Termination of Employment” means the termination of the Grantee’s employment with, or performance of services for, the Company or any Subsidiary or Affiliate. An individual employed by, or performing services for, any Subsidiary or an Affiliate also shall be deemed to incur a Termination of Employment if the Subsidiary or Affiliate ceases to be a Subsidiary or Affiliate, as the case may be, and the individual does not immediately thereafter become an employee of, or service-provider for, the Company or another Subsidiary or Affiliate. Temporary absences from employment because of illness, vacation or leave of absence and transfers among the Company and any Subsidiary or Affiliate shall not be considered Terminations of Employment.

In addition, certain other terms used herein have definitions given to them in the first place in which they are used.

 

2. Grant; Dividend Equivalents . The Company, pursuant to the Plan, which is incorporated herein by reference, and subject to the terms and conditions thereof, grants to the Grantee as of the date of this Agreement the above-mentioned RSUs. In addition, as of each ordinary cash dividend payment date declared with respect to Shares, the Company shall make a cash payment to the Grantee equal to the cash payment that the Grantee would have received if each RSU then held by the Grantee was a Share. Further, as of each dividend payment date (other than with respect to an ordinary cash dividend) declared with respect to Shares, the Company shall credit to an account established for the Grantee the property or cash the Grantee would have received if each RSU then held by the Grantee was a Share. Payment and vesting of amounts credited to a Grantee’s account shall occur at the same time as vesting and payment of the RSUs in respect of which such amounts were credited.

 

3. Termination of Employment—General Rule . Any RSUs held by the Grantee that have not vested shall be forfeited upon the Grantee’s Termination of Employment; provided, however, that if the Grantee’s employment is terminated by the Company or one of its Affiliates or Subsidiaries other than for Cause, or as a result of the Grantee’s death, Disability or Retirement, then the Grantee’s RSUs shall be treated in accordance with Section 4, 5, 6 or 7 below, as applicable.

 

4.

Termination of Employment—Other than for Cause . Upon the Grantee’s Termination of Employment by the Company or one of its Affiliates or Subsidiaries other than for Cause, subject to the Grantee’s continued compliance with Section 10 below and the execution

 

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and non-revocation of a general release in the Company’s favor, each unvested installment of RSUs held by the Grantee shall vest upon the earlier to occur of (i) the date such installment would have otherwise vested or (ii) the first anniversary of the Grantee’s Termination of Employment.

 

5. Death . Upon the Grantee’s Termination of Employment as a result of death, all unvested RSUs shall immediately vest.

 

6. Disability . In the event of the Grantee’s Disability, subject to the Grantee’s continued compliance with Section 10 below, each unvested installment of RSUs held by the Grantee shall vest upon the earlier to occur of (i) the date such installment would have otherwise vested or (ii) the first anniversary of the Grantee’s Termination of Employment.

 

7. Termination of Employment—Retirement . Upon the Grantee’s Termination of Employment by reason of Retirement, subject to the Grantee’s continued compliance with Section 10 below and the execution and non-revocation of a general release in the Company’s favor, each unvested installment of RSUs held by the Grantee shall vest upon the earlier to occur of (i) the date such installment would have otherwise vested or (ii) the first anniversary of the Grantee’s Termination of Employment.

 

8. Withholding and Other Taxes . Payment of withholding taxes and other tax obligations relating to the Shares and any amounts or property paid with respect to RSUs shall be made by the Company retaining or not issuing such number of Shares as have a Fair Market Value at the time the Grantee becomes subject to income tax equal to the minimum necessary amount of tax to be withheld, unless the Grantee informs the Company in writing of the Grantee’s intention to satisfy such requirements in cash.

 

9. Vesting and Conversion . Upon each Vesting Date, the RSUs which shall have then vested shall be converted to Shares and promptly delivered to the Grantee in either certificate or book entry form. If a Vesting Date is not a Business Day, the conversion and delivery shall occur on the first Business Day following the Vesting Date.

 

10. Grantee’s Covenants and Acknowledgements . In order to induce the Company to enter into this Agreement, the Grantee hereby covenants and acknowledges to the Company as follows:

(a)     Non-Disclosure. The Grantee may not, during or subsequent to the Grantee’s employment with the Company or any of its Affiliates, without the prior written consent of the Company, use, divulge, disclose, or make accessible to any other person, firm, partnership, corporation or other entity any Confidential Information (as defined below) pertaining to the business of the Company or any of its Affiliates except (i) while employed by the Company or any of its Affiliates, in the business of and for the benefit of the Company or any of its Affiliates, or (ii) when required to do so by a court of competent jurisdiction or regulatory body. In the event that the Grantee becomes compelled by an order of a court to disclose any Confidential Information, the Grantee is required to provide the Company with prompt, prior written notice and to disclose only that portion of the Confidential Information which is legally required.

 

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For purposes of this Agreement, “Confidential Information” shall mean any non-public information (whether oral, written or contained on computer systems) relating to the business or the affairs of the Company and its Affiliates or of any client of the Company or of any of its Affiliates, whether obtained from the Company or any of its Affiliates, any client of the Company or any of its Affiliates or known by the Grantee as a consequence of or through Grantee’s relationship with the Company or any of its Affiliates, whether obtained before or after Grantee executes this Agreement and whether obtained from an entity which was not a Company Affiliate at the time such information became available but which is now or later becomes an Affiliate of the Company. Such information includes but is not limited to non-public information concerning the financial data, strategic or financial plans, business plans, proprietary project information, marketing plans, future transactions (regardless of whether or not such transactions are executed), customer lists, employee lists, employees’ salary and other compensation, partners’ compensation, and other proprietary and confidential information of the Company, the Company’s Affiliates or any of their clients, that, in any case, is not otherwise available to the public. Confidential Information includes information encompassed in drawings, designs, plans, proposals, reports, research, marketing and sales plans, financial information, costs, quotations, specification sheets and recording media. Confidential Information also includes information which relates directly or indirectly to the computer systems and computer technology of the Company and its Affiliates, including but not limited to source codes, object codes, reports, flow charts, screens, algorithms, use manuals, installation and/or operation manuals, computer software, spreadsheets, data computations, formulas, techniques, databases, and any other form or compilation of computer-related information.

It is the policy of the Company not to use or accept any Confidential Information of third parties, including former employers of the Grantee. The Grantee shall not disclose such Confidential Information of third parties to the Company or any of its Affiliates, their employees, agents, or independent contractors, or to any other third party, and shall not use such Confidential Information of third parties while employed by the Company or any of its Affiliates, unless the Grantee has obtained and presented to the Company the appropriate authorizations for such use or disclosure from such third parties and has also obtained the Company’s approval of such use or disclosure.

The Company and its Affiliates may, from time to time, enter into agreements and/or business relationships with third party vendors and/or suppliers of information as a result of which Grantee may have access to Confidential Information proprietary to such third parties (“Third Party Confidential Information”). The use and disclosure by the Grantee of Third Party Confidential Information shall be governed by the terms and conditions of this Agreement and shall be in strict compliance with any existing agreement between the Company or any of its Affiliates and the third parties to hold such information confidential. Prior to using any Third Party Confidential Information, Grantee is required to inquire whether and to what extent the use of such Third Party Confidential Information is governed by an existing agreement.

The Company and its Affiliates may at times develop appropriate information barriers to assure that restricted information related to a client of the Company or an Affiliate of the Company is not improperly communicated or disclosed to other employees within the Company and its Affiliates. If the Grantee has reason to believe that he or she is subject

 

5

to any information barrier, the Grantee is required to inquire of the human resources or compliance department as to the applicability and terms of any such information barrier.

The Grantee agrees that the Company is the exclusive owner of any business-related ideas, products, materials, discoveries, inventions, computer programs, research, writing or other work products developed by the Grantee that are in the scope of, or otherwise related to the business of the Company or its Affiliates. Whenever requested to do so by the Company, Grantee shall execute any and all applications, assignments, or other instruments that the Company deems necessary to apply for and obtain patents or copyrights in the United States or any foreign country or otherwise protect the Company’s interest therein. Such obligations shall continue beyond the Grantee’s Termination of Employment with the Company with respect to business-related ideas, products, materials, discoveries, inventions, computer programs, research, writing or other work products developed, conceived or made by Grantee during the term of the Grantee’s employment with the Company. Further, the Grantee agrees that such obligation will be binding on the Grantee’s assigns, executors, administrators and other legal representatives. The Grantee is required to return to the Company all Confidential Information (including all reproductions thereof whether on computer diskette or otherwise) furnished to or otherwise in their possession immediately upon request or their resignation or Termination of Employment.

(b)     Non-Solicitation of Clients, etc. The Grantee shall not, for a period of one year immediately following the Termination of Employment, whether on his or her own behalf or on behalf of or in conjunction with any person, company, business entity or other organization whatsoever, directly or indirectly, (i) call on, interfere with, solicit or assist in soliciting the business of any “Client” or “Prospective Client” or (ii) accept business from, or enter into a relationship with, any such “Client” or “Prospective Client”, with whom the Grantee has had personal contact or dealings on behalf of the Company or its Affiliates during the one year period immediately preceding his or her Termination of Employment or with whom employees reporting to the Grantee has had personal contact or dealings on behalf of the Company or its Affiliates during the one year period immediately preceding the Termination of Employment.

For purposes of this Agreement, the term “Client” shall mean any person, firm, company, or other organization to whom the Company or any of its Affiliates has supplied services, products or professional advice, and “Prospective Client” shall mean any person, firm, company or other organization with whom the Company or any of its Affiliates has had negotiations or discussions regarding the possible supply of products or services, or with respect to whom the Company or any of its Affiliates has expended significant time, effort or money in developing a bid or proposal for the supply of products or services.

(c)     Non-Enticement of Employees; No Hire. The Grantee shall not, during his or her employment and for a period of one year immediately following the Grantee’s Termination of Employment, either on his or her own account or in conjunction with or on behalf of any other person, company, business entity or other organization whatsoever, directly or indirectly (i) induce, solicit, entice or procure any person who is an employee of the Company or any of its Affiliates to leave such employment or (ii) accept into employment, hire or otherwise engage or use the services of, or actively interfere with the Company’s or any Affiliates’ relationship with, any person who is an

 

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employee of the Company or any of its Affiliates or who was an employee of the Company or any of its Affiliates during the period commencing one year prior to the Termination of Employment.

(d)     Non-Disparagement; No Conflicts. The Grantee shall not at any time during or subsequent to Grantee’s employment with the Company or any of its Affiliates, criticize, speak ill of, disparage or make false statements in respect of the Company, its Affiliates or any of their employees; provided, however, that the Grantee shall not be prohibited from making truthful statements about the Company or any of its Affiliates. The Grantee also shall not, during the course of employment with the Company or any of its Affiliates take any action which conflicts with (or appears to conflict with) the Company’s or any of its Affiliates’ business interests except if ordered to do so by a court or government agency.

(e)     Enforceability; Injunction. The Company and the Grantee agree that in the event that any one or more of the terms and conditions set forth in this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining terms and conditions will not in any way be affected or impaired thereby. Moreover, if any one or more of the terms and conditions contained in this Agreement are held to be excessively broad as to duration, scope, activity or subject, such terms and conditions will be construed by limiting and reducing them so as to be enforceable to the maximum extent compatible with applicable law. The Grantee acknowledges and agrees that the Company’s remedies at law for a breach or threatened breach of any of the provisions of this Section 10 would be inadequate and, in recognition of this fact, the Grantee agrees that, in the event of such a breach or threatened breach, in addition to any remedies at law, the Company, without posting any bond, shall be entitled to obtain equitable relief in the form of specific performance, temporary restraining order, a temporary or permanent injunction or any other equitable remedy which may then be available.

 

11. Forfeiture . In the event of any breach by the Grantee of the Company’s Confidentiality and Employment Policy, as it may be amended from time to time (the “Confidentiality Policy”), or the provisions of Section 10 by the Grantee, the Company shall have the right, if such conduct or activity occurs within one year following the most recent date upon which Shares are delivered to the Grantee, to require the Grantee to repay to the Company the value of the Shares (based on the Fair Market Value of the Shares on each date upon which the Shares were delivered). Such repayment obligation shall be effective as of the date specified by the Committee. Any repayment obligation may be satisfied in common stock of the Company or cash or a combination thereof (based upon the Fair Market Value of the common stock of the Company on the day of payment), and the Committee may provide for an offset to any future payments owed by the Company or any Subsidiary or Affiliate to the Grantee, if necessary, to satisfy the repayment obligation. The determination of whether the Grantee has engaged in a breach of the Confidentiality Policy or Section 10 shall be determined by the Committee in its sole discretion.

 

12. Incorporation by Reference . The obligation of the Company to deliver any Shares under this Agreement is specifically subject to all provisions of the Plan and all applicable laws, rules, regulations and governmental and stockholder approvals.

 

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13. Notice . Any notice by the Grantee to the Company hereunder shall be in writing and shall be deemed duly given only upon receipt thereof by the Company at its principal offices. Any notice by the Company to the Grantee shall be in writing and shall be deemed duly given if mailed to the Grantee at the address last specified to the Company by the Grantee.

 

14. Amendment . This Agreement may be amended or modified at any time only by an instrument in writing signed by each of the parties hereto.

 

15. Binding; Successors . This Agreement shall apply to and bind the Grantee and the Company and their respective permitted assignees and transferees, heirs, legatees, executors, administrators and legal successors.

 

16. Headings . The headings of sections herein are included solely for convenience of reference and shall not affect the meaning or interpretation of any of the provisions hereof.

 

17. Governing Law . The validity and construction of this Agreement shall be governed by the laws of the State of Delaware (excluding any conflict of law, rule or principle of Delaware law that might refer the governance, construction or interpretation of this Agreement to the laws of another state).

 

18. Notices . Any notice required or permitted to be given under the Agreement shall be in writing and shall be deemed to have been given when delivered personally or by courier, or sent by certified or registered mail, postage prepaid, return receipt requested, duly addressed to the party concerned at the address indicated below or to such changed address as such party may subsequently by similar process give notice of:

If to the Company:

BlackRock, Inc.

40 E. 52 nd Street

New York, New York 10022

Attn: Robert Connolly, General Counsel

If to the Grantee:

To the last address delivered to the Company by the Grantee in the manner set forth herein.

 

19. Entire Agreement . The Agreement and the Plan constitute the entire agreement among the parties relating to the subject matter hereof, and any previous agreement or understanding among the parties with respect thereto is superseded by this Agreement and the Plan.

 

20. Counterparts . This Agreement may be executed in two counterparts, each of which shall constitute one and the same instrument.

 

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* * * * *

This Agreement is made under and subject to the provisions of the Plan, and all of the provisions of the Plan are hereby incorporated herein as provisions of this Agreement. If there is a conflict between the provisions of this Agreement and the provisions of the Plan, the provisions of the Plan will govern.

 

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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by a duly authorized representative and the Grantee has hereunto set his hand as of the date hereof.

 

BLACKROCK, INC.

By:     
 

Name:

Title:

GRANTEE

                                                                                                         

Name (Please Print)

                                                                                                         

Signature

Dated as of

 

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Exhibit 10.8

BLACKROCK, INC.

1999 STOCK AWARD AND INCENTIVE PLAN

RESTRICTED STOCK UNIT AGREEMENT

 

 

Name of Grantee:  
Restricted Stock Units :   Covering [            ] shares of Class A Common Stock, $0.01 par value, of BlackRock, Inc. (the “Shares”).
Pricing Date :   [                      ]
Price:   $
Vesting Date :   The earlier to occur of (i) March 31, 2009 and (ii) the date the Grantee ceases to serve as a member of the Board

Except as noted below, the Restricted Stock Units granted pursuant to this Agreement (the “RSUs”) will be converted into Shares on the Vesting Date or the next following Business Day if the Vesting Date is not a Business Day. Once an RSU vests, it shall be nonforfeitable.

*            *            *            *             *            *            *             *

This Restricted Stock Unit Agreement (this “Agreement”) is executed and delivered as of the date hereof set forth above by and between BlackRock, Inc., a Delaware company, and its successors (the “Company”) and the Grantee set forth above. The Grantee and the Company hereby agree as follows:

 

1. Definitions .  For all purposes in this Agreement, the following terms shall have the respective meanings set forth in this Section 1. Capitalized terms used herein without definitions shall have the meanings assigned to them in the Plan.

 

  (a) “Business Day” means any day other than Saturday, Sunday or any other day on which banks in the State of New York are required by law to be closed.

 

  (b) “Fair Market Value” means, as of a particular date, (i) the closing sales price per Share on the national securities exchange on which Shares are principally traded for the last preceding date on which there was a sale of Shares on such exchange, or (ii) if Shares are then traded in an over-the-counter market, the average of the closing bid and asked per Share in such over-the-counter market for the last preceding date on which there was a sale of Shares in such market, or (iii) if Shares are not then listed on a national securities exchange or traded in an over-the-counter market, the fair market value of a Share shall be determined by a nationally recognized investment banking firm selected by the Committee for such purpose.

  (c) “Plan” means the 1999 Stock Award and Incentive Plan, as amended.

In addition, certain other terms used herein have definitions given to them in the first place in which they are used.

 

2. Grant; Dividend Equivalents .  The Company, pursuant to the Plan, which is incorporated herein by reference, and subject to the terms and conditions thereof, grants to the Grantee as of the date of this Agreement the above-mentioned RSUs. In addition, as of each ordinary cash dividend payment date declared with respect to Shares, the Company shall make a cash payment to the Grantee equal to the cash payment that the Grantee would have received if each RSU then held by the Grantee was a Share. Further, as of each dividend payment date (other than with respect to an ordinary cash dividend) declared with respect to Shares, the Company shall credit to an account established for the Grantee the property or cash the Grantee would have received if each RSU then held by the Grantee was a Share. Payment and vesting of amounts credited to a Grantee’s account shall occur at the same time as vesting and payment of the RSUs in respect of which such amounts were credited.

 

3. Withholding and Other Taxes .  Payment of withholding taxes and other tax obligations relating to the Shares and any amounts or property paid with respect to RSUs shall be made by the Company retaining or not issuing such number of Shares as have a Fair Market Value at the time the Grantee becomes subject to income tax equal to the minimum necessary amount of tax to be withheld, unless the Grantee informs the Company in writing of the Grantee’s intention to satisfy such requirements in cash.

 

4. Vesting and Conversion .  Upon the Vesting Date, the RSUs which shall have then vested shall be converted to Shares and promptly delivered to the Grantee in either certificate or book entry form. If a Vesting Date is not a Business Day, the conversion and delivery shall occur on the first Business Day following the Vesting Date. Notwithstanding the foregoing, if the delivery of Shares upon vesting would subject the Grantee to additional taxes imposed under Section 409A of the Code, then the RSUs shall not be converted to Shares (and there shall be no delivery of Shares) until the earliest date at which such conversion and delivery would not subject the Grantee to additional taxes under Section 409A of the Code.

 

5. Incorporation by Reference .  The obligation of the Company to deliver any Shares under this Agreement is specifically subject to all provisions of the Plan and all applicable laws, rules, regulations and governmental and stockholder approvals.

 

6. Notice .  Any notice by the Grantee to the Company hereunder shall be in writing and shall be deemed duly given only upon receipt thereof by the Company at its principal offices. Any notice by the Company to the Grantee shall be in writing and shall be deemed duly given if mailed to the Grantee at the address last specified to the Company by the Grantee.

 

7. Amendment .  This Agreement may be amended or modified at any time only by an instrument in writing signed by each of the parties hereto.

 

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8. Binding; Successors .  This Agreement shall apply to and bind the Grantee and the Company and their respective permitted assignees and transferees, heirs, legatees, executors, administrators and legal successors.

 

9. Headings .  The headings of sections herein are included solely for convenience of reference and shall not affect the meaning or interpretation of any of the provisions hereof.

 

10. Governing Law .  The validity and construction of this Agreement shall be governed by the laws of the State of Delaware (excluding any conflict of law, rule or principle of Delaware law that might refer the governance, construction or interpretation of this Agreement to the laws of another state).

 

11. Notices .  Any notice required or permitted to be given under the Agreement shall be in writing and shall be deemed to have been given when delivered personally or by courier, or sent by certified or registered mail, postage prepaid, return receipt requested, duly addressed to the party concerned at the address indicated below or to such changed address as such party may subsequently by similar process give notice of:

If to the Company:

BlackRock, Inc.

40 E. 52 nd Street

New York, New York 10022

Attn: Robert Connolly, General Counsel

If to the Grantee:

To the last address delivered to the Company by the Grantee in the manner set forth herein.

 

12. Entire Agreement .  The Agreement and the Plan constitute the entire agreement among the parties relating to the subject matter hereof, and any previous agreement or understanding among the parties with respect thereto is superseded by this Agreement and the Plan.

 

13. Counterparts .  This Agreement may be executed in two counterparts, each of which shall constitute one and the same instrument.

*            *            *            *             *

This Agreement is made under and subject to the provisions of the Plan, and all of the provisions of the Plan are hereby incorporated herein as provisions of this Agreement. If there is a conflict between the provisions of this Agreement and the provisions of the Plan, the provisions of the Plan will govern.

 

3

IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by a duly authorized representative and the Grantee has hereunto set his hand as of the date hereof.

 

BLACKROCK, INC.
By:     
 

Name:

Title:

GRANTEE

  

Name (PleasePrint)

  

Signature

Dated as of

 

4

Exhibit 10.9

May 17, 2006

Robert C. Doll

513 Christopher Drive

Princeton, NJ 08540

Dear Bob:

As you know, BlackRock, Inc. and Merrill Lynch Investment Managers (“MLIM”) have entered into an agreement to merge under the name BlackRock, with an expected closing date of the transaction (the “Closing”) on or about September 30, 2006.

We are pleased to offer you an opportunity to join BlackRock, effective as of the Closing, as Vice Chairman, Chief Investment Officer (CIO) for Equities, Chairman of the Private Client Operating Committee and a member of BlackRock’s Board of Directors. This position will be located primarily in New Jersey. Your base salary will be $400,000 (pro-rated for the number of weeks you work), less all applicable tax withholding.

Upon joining BlackRock, you will be eligible to participate in our employee benefits program. The details of the benefits programs will be available in the coming months but we expect that your health coverage will continue at the same level of benefits through the end of 2006 and that you will be eligible immediately to enroll in BlackRock’s 401(k) plan.

For 2006, your total compensation will be at least $10,750,000, including base salary earned at MLIM and BlackRock and any form of incentive compensation. Your bonus will be determined taking into consideration the Growth Enhancement Plan associated with the Large Cap Series, your role as CIO of Equities and Chairman of the Private Client Operating Committee, other management responsibilities as well as the performance of the Firm. Please refer to the attachment as confirmation of our discussions.

For 2007, your total compensation will be at least $10,750,000, including base salary and any form of discretionary bonus and incentive compensation. Thereafter you will be eligible for an annual discretionary bonus reflecting your performance, your team’s performance, and the firm’s performance. In 2007 and beyond, your bonus will also be determined taking into consideration the Growth Enhancement Plan associated with the Large Cap Series, your role as CIO of Equities and Chairman of the Private Client Operating Committee, other management responsibilities as well as the performance of the Firm.

Any bonus will be paid in conjunction with BlackRock’s annual schedule for bonus payments in the year following the year for which it was earned. Any bonus is contingent upon your continued employment with BlackRock at the time of payment or your not having given notice of resignation prior to the time of payment. Bonus payments are subject to all applicable tax withholding and may be paid in cash and deferred cash or BlackRock equity under the terms of any long term incentive or deferred compensation plans as determined by management and the Compensation Committee of BlackRock’s Board of Directors from time to time. The mix of cash and non-cash or equity and the terms of any award will be consistent with the terms generally applicable to other similarly situated employees.

Subject to approval by the Compensation Committee of the Board of Directors, you will be granted an award of BlackRock equity with an initial value of $15,000,000. Your grant is expected to be awarded in the form of restricted stock units and dividend equivalents will be paid until vesting. Vesting will be determined prior to closing and will be consistent with the vesting schedule of awards to other similarly situated MLIM executives. We expect the Compensation Committee to approve five-year “cliff” vesting (100% at the end of five years) from the date of the closing of the merger.

At all times, you will be considered an employee-at-will, which means that you may terminate your employment at any time and BlackRock may terminate your employment at any time for any lawful reason. However, in the event of your involuntary termination of employment without cause, you will be entitled to receive your minimum stated total compensation for 2006 and 2007, subject to execution (and non-revocation) of and compliance with an Agreement and General Release. BlackRock may, in certain circumstances, require advance notice from you of voluntary termination of employment, as set forth in the attached Confidentiality and Employment Policy under section D.

Please note that your employment with BlackRock is contingent upon the completion of the above referenced transaction well as execution of the enclosed Confidentiality and Employment Policy.

To accept this offer, please sign and return the attached duplicate copy of this letter (along with the enclosed Confidentiality and Employment Policy) to Susan Mink in Human Resources no later than ten business days after the date hereof.

If you have any questions, please contact Susan Mink at (212) 810-3140. We look forward to your joining us!

 

Sincerely,

/s/

Laurence D. Fink
Chief Executive Officer

/s/ Robert C. Doll

Agreed & Accepted

5-19-06

Date

Exhibit 99.1

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News Release

Contact

Brian Beades

212-810-5596

invrel@blackrock.com

BLACKROCK COMPLETES MERGER WITH MERRILL LYNCH INVESTMENT MANAGERS

Additions to Board of Directors Announced

New York, October 2, 2006 - BlackRock, Inc. (NYSE:BLK) announced today that it completed its merger with Merrill Lynch Investment Managers (MLIM) on Friday, September 29, 2006.

“The combination of BlackRock and MLIM creates one of the world’s premier investment management firms, with USD 1.046 trillion in combined assets under management as of June 30, 2006. Together, we have global scale and resources with a unified platform for information sharing that will enable us to help our institutional and retail clients fully realize opportunities in today’s marketplace,” commented Laurence D. Fink, BlackRock’s Chairman and Chief Executive Officer.

“I am incredibly proud of, and thankful for, the tireless effort of countless BlackRock and MLIM employees, who came together to ensure consistent focus on delivering competitive investment results and to facilitate a seamless transition for our clients. Their accomplishments over the past seven months are truly remarkable, and I have great confidence that their continuing focus and dedication will be an ongoing source of distinction.

“Of course, we remain steadfast in our focus on delivering strong investment performance and superior service to each of our clients as we continue to build a truly exceptional global franchise.”

Additions to Board of Directors

BlackRock also announced the appointment of three professionals to its Board of Directors, bringing the total size of the Board to 17, including nine independent directors. The three appointees are Sir Deryck Maughan, Managing Director of Kohlberg Kravis Roberts and Chairman of KKR Asia; Robert C. Doll, BlackRock’s Vice Chairman and Chief Investment Officer of Global Equities; and Robert S. Kapito, BlackRock’s Vice Chairman and head of Portfolio Management. In addition, Stan O’Neal, Chairman and Chief Executive Officer of Merrill Lynch; and Gregory J. Fleming, President, Global Markets & Investment Banking, Merrill Lynch, joined the Board in connection with the closing of the merger.

Mr. Fink stated, “We are very pleased to welcome all of the new members of our Board. They add tremendous depth and diversity of experience and strong global perspective that will be of great value in guiding the growth and evolution of BlackRock’s organization and business.”

Brief biographical information on each of the new directors is provided below, and additional information can be found on the “Investor Relations” section of BlackRock’s website, www.blackrock.com.

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Sir Deryck Maughan . Prior to KKR, Sir Deryck served as Vice Chairman of Citigroup, Chairman and Chief Executive Officer of Salomon Brothers and Chairman and Chief Executive Officer of Salomon Brothers Asia. He also was Vice Chairman of the New York Stock Exchange from 1996- to 2000 and Chairman of the US-Japan Business Council from 2002 to 2004. Prior to joining Salomon Brothers in 1983, he worked at Goldman Sachs. He served in H.M. Treasury (UK Economics and Finance Ministry) from 1969 to 1979. He also currently serves as a Director of GlaxoSmithKline and Reuters.

Robert C. Doll . Mr. Doll joined MLIM in 1999, where he served as President and Chief Investment Officer and was the Senior Fund Manager of the Merrill Lynch Large Cap Series Funds. Prior to joining MLIM, Mr. Doll served as the Chief Investment Officer of Oppenheimer Funds, Inc.

Robert S. Kapito . Prior to founding BlackRock in 1988, Mr. Kapito was a Vice President in the Mortgage Products Group at The First Boston Corporation and, prior to that, Mr. Kapito was in the Public Finance Department of The First Boston Corporation. Previously, Mr. Kapito worked as a strategic consultant with Bain & Co.

Stan O’Neal . Mr. O’Neal has been a Director of Merrill Lynch since 2001, Chairman of the Board of Merrill Lynch since April 2003, Chief Executive Officer of Merrill Lynch since December 2002 and President since July 2001. He has held a series of increasingly responsible positions at Merrill Lynch since joining the company in 1986 as vice president of investment banking.

Gregory J. Fleming . Mr. Fleming has been Executive Vice President of Merrill Lynch since October 2003 and President of Global Markets & Investment Banking (GMI) since August 2003. Before being named to his present position, Mr. Fleming was co-head of the Global Financial Institutions Group. Mr. Fleming joined Merrill Lynch in 1992.

About BlackRock

BlackRock is one of the world’s largest publicly traded investment management firms. As of June 30, 2006, the combined pro forma assets under management of BlackRock and MLIM were USD 1.046 trillion. The firm manages assets on behalf of institutions and individuals worldwide through a variety of equity, fixed income, cash management and alternative investment products. In addition, BlackRock provides risk management, investment system outsourcing and financial advisory services to a growing number of institutional investors. Headquartered in New York City, the firm has over 4,500 employees in 18 countries and a major presence in key global markets, including the U.S., Europe, Asia, Australia and the Middle East. For additional information, please visit the company’s website at www.blackrock.com.

Forward-Looking Statements

This press release, and other statements that BlackRock may make, may contain forward-looking statements within the meaning of the Private Securities Litigation Reform Act, with respect to BlackRock’s future financial or business performance, strategies or expectations. Forward-looking statements are typically identified by words or phrases such as “trend,” “potential,” “opportunity,” “pipeline,” “believe,” “comfortable,” “expect,” “anticipate,” “current,” “intention,” “estimate,” “position,” “assume,” “outlook,” “continue,” “remain,”

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“maintain,” “sustain,” “seek,” “achieve,” and similar expressions, or future or conditional verbs such as “will,” “would,” “should,” “could,” “may” or similar expressions.

BlackRock cautions that forward-looking statements are subject to numerous assumptions, risks and uncertainties, which change over time. Forward-looking statements speak only as of the date they are made, and BlackRock assumes no duty to and does not undertake to update forward-looking statements. Actual results could differ materially from those anticipated in forward-looking statements and future results could differ materially from historical performance.

In addition to factors previously disclosed in BlackRock’s SEC reports and those identified elsewhere in this communication, the following factors, among others, could cause actual results to differ materially from forward-looking statements or historical performance: (1) the introduction, withdrawal, success and timing of business initiatives and strategies; (2) changes in political, economic or industry conditions, the interest rate environment or financial and capital markets, which could result in changes in demand for products or services or in the value of assets under management; (3) the relative and absolute investment performance of BlackRock’s investment products, including its separately managed accounts and the former Merrill Lynch Investment Managers (MLIM) business; (4) the impact of increased competition; (5) the impact of capital improvement projects; (6) the impact of future acquisitions or divestitures; (7) the unfavorable resolution of legal proceedings; (8) the extent and timing of any share repurchases; (9) the impact, extent and timing of technological changes and the adequacy of intellectual property protection; (10) the impact of legislative and regulatory actions and reforms and regulatory, supervisory or enforcement actions of government agencies relating to BlackRock, Merrill Lynch or PNC; (11) terrorist activities and international hostilities, which may adversely affect the general economy, domestic and local financial and capital markets, specific industries, and BlackRock; (12) the ability to attract and retain highly talented professionals; (13) fluctuations in foreign currency exchange rates, which may adversely affect the value of advisory fees earned by BlackRock; (14) the impact of changes to tax legislation and, generally, the tax position of the Company; (15) BlackRock’s ability to successfully integrate the MLIM business with its existing business; (16) the ability of BlackRock to effectively manage the former MLIM assets along with its historical assets under management; and (17) BlackRock’s success in maintaining the distribution of its products.

BlackRock’s Annual Reports on Form 10-K and BlackRock’s subsequent reports filed with the SEC, accessible on the SEC’s website at http://www.sec.gov and on BlackRock’s website at http://www.blackrock.com , discuss these factors in more detail and identify additional factors that can affect forward-looking statements. The information contained on our website is not a part of this press release.

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