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): December 3, 2009 (November 30, 2009)
 
BLACKROCK, INC.
(Exact name of registrant as specified in its charter)
 
 
         
DELAWARE
  001-33099  
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
 
N/A
(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))
 
 

 
1
 

 
Item 1.01 Entry into Material Definitive Agreements.
 
Amended and Restated Stock Purchase Agreement
 
On November 30, 2009, BlackRock, Inc. (“BlackRock”), Barclays Bank PLC (“Barclays Bank”) and Barclays PLC (for limited purposes) entered into an Amended and Restated Stock Purchase Agreement (the “Amended and Restated Purchase Agreement”).  The Amended and Restated Purchase Agreement amended and restated the terms of the Stock Purchase Agreement, dated as of June 16, 2009, by and among BlackRock, Barclays Bank and Barclays PLC (for limited purposes), which provided for the acquisition by BlackRock of Barclays Global Investors (“BGI”) from Barclays Bank.  The revised terms relate, among other things, to the amount of cash and capital required to be held by the various BGI entities at the closing of the acquisition and to the post-closing purchase price adjustment mechanism.  As described in Item 2.01 below, on December 1, 2009, BlackRock completed its acquisition of BGI pursuant to the Amended and Restated Purchase Agreement.
 
Stockholder Agreement
 
In connection with the completion of its acquisition of BGI, BlackRock entered into a Stockholder Agreement, dated as of December 1, 2009 (the “Barclays Stockholder Agreement”), with Barclays Bank and Barclays BR Holdings S.à r.l. (“BR Holdings”, and together with Barclays Bank, the “Barclays Parties”).  Pursuant to the terms of the Barclays Stockholder Agreement, the Barclays Parties agreed, among other things, to certain transfer and voting restrictions with respect to shares of BlackRock common stock and preferred stock owned by them and their affiliates, to limits on the ability of the Barclays Parties and their affiliates to acquire additional shares of BlackRock common stock and preferred stock and to certain other restrictions.  In addition, the Barclays Stockholder Agreement contains certain provisions relating to the composition of BlackRock’s board of directors, including a requirement that BlackRock’s board must consist of not more than 19 directors, with two directors designated by the Barclays Parties.
 
The foregoing descriptions of the Amended and Restated Purchase Agreement and the Barclays Stockholder Agreement do not purport to be complete and are qualified in their entirety by reference to the Amended and Restated Purchase Agreement, which is filed as Exhibit 2.1 hereto, and the Barclays Stockholder Agreement, which is filed as Exhibit 10.1 hereto, each of which is hereby incorporated into this Form 8-K by reference.  In addition, the information set forth in Item 2.03 concerning the credit facility BlackRock entered into with various lenders on December 1, 2009 is hereby incorporated by reference into this Item 1.01.
 
 
Item 2.01 Completion of Acquisition or Disposition of Assets.
 
On December 1, 2009, BlackRock completed its previously announced acquisition of BGI from Barclays Bank.  In exchange for BGI, BlackRock paid approximately $6.65 billion in cash and issued 3,031,516 shares of BlackRock common stock, par value $0.01 per share (“Common Stock”), 26,888,001 shares of BlackRock   Series B Convertible Participating Preferred Stock, par value $0.01 per share (“Series B Preferred Stock”), and 7,647,254 shares of BlackRock Series D Participating Preferred Stock, par value $0.01 per share (“Series D Preferred Stock”), to BR Holdings.
 
On December 1, 2009, BlackRock issued a press release announcing the completion of its acquisition of BGI.  The press release is attached as Exhibit 99.1 hereto and is hereby incorporated into this Form 8-K by reference.
 
 
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
 
On December 1, 2009, BlackRock entered into a 364-day $2.0 billion revolving credit facility with Barclays Bank, as administrative agent and a lender, a group of lenders and Barclays Capital as sole lead arranger, sole lead bookrunner and syndication agent (the “Facility”).  As of the date hereof, BlackRock had $1.5 billion borrowed or notified to be borrowed under the Facility.  BlackRock may borrow additional amounts, and repay amounts, from time to time.
 
BlackRock’s obligations under the Facility are unsecured and are not guaranteed by any of BlackRock’s subsidiaries.  The facility matures on November 30, 2010.  The Facility contains various conditions to borrowing
 

 
2
 

 
and affirmative, negative and financial maintenance covenants.  The Facility also contains various standard events of default, the occurrence of which could result in a termination by the lenders and the acceleration of all of BlackRock’s obligations under the Facility.
 
The foregoing description of the Facility is not complete and is qualified in its entirety by reference to the Facility, which is filed as Exhibit 10.2 hereto and is hereby incorporated into this Form 8-K by reference.
 
 
Item 3.02 Unregistered Sales of Equity Securities.
 
On December 1, 2009, pursuant to separate stock purchase agreements entered into on June 11, 2009 and June 12, 2009, as amended, BlackRock sold an aggregate of 8,637,519 shares of Common Stock, 5,587,232 shares of Series B Preferred Stock and 3,556,188 shares of Series D Preferred Stock (collectively, the “Financing Shares”) to certain institutional investors, including the sale of the 3,556,188 shares of Series D Preferred Stock to The PNC Financial Services Group, Inc. (“PNC”), each at a price of $140.60 per share.  BlackRock received approximately $2.5 billion in total consideration from the sale of the Financing Shares.
 
Pursuant to the terms of the stock purchase agreements with the institutional investors, the closing of each sale of Financing Shares occurred simultaneously with, and was conditioned on, the closing of BlackRock’s acquisition of BGI, as well as other customary conditions.  No underwriting discounts or commissions were paid in connection with the sales of the Financing Shares. BlackRock entered into a registration rights agreement with each institutional investor, other than PNC, pursuant to which it agreed to register the resale of the applicable Financing Shares with the U.S. Securities and Exchange Commission (the “SEC”) under the Securities Act of 1933, as amended, and the rules and regulations thereunder (the “Securities Act”).  The Financing Shares acquired by such institutional investors are subject to customary registration rights.  The Financing Shares acquired by PNC have the benefit of the existing Registration Rights Agreement, dated as of September 29, 2006, by and among BlackRock, Inc., Merrill Lynch & Co., Inc. and PNC, pursuant to which BlackRock agreed to register the resale of certain securities with the SEC under the Securities Act.
 
The information set forth under Item 2.01 concerning the issuance of shares of BlackRock capital stock to the Barclays Parties is incorporated herein by reference.  In connection with the acquisition of BGI, BlackRock and the Barclays Parties entered into an agreement providing for customary registration rights, a copy of which is attached as Exhibit 10.3 and is hereby incorporated into this Form 8-K by reference.
 
The issuances of the Financing Shares and the shares of capital stock to the Barclays Parties were exempt from the registration requirements of the Securities Act by virtue of Section 4(2) of the Securities Act because the issuances did not involve a public offering.
 
Upon any transfer of Series B Preferred Stock to any person other than an affiliate of the initial holder, each share of Series B Preferred Stock will be automatically converted into one share of Common Stock.  Each share of Series D Preferred Stock will be automatically converted into one share of Series B Preferred Stock on the date which is 20 days after an information statement in connection with the Amended and Restated Purchase Agreement is first mailed by BlackRock to holders of its Common Stock in accordance with Rule 14c-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (the “Exchange Act”).
 
 
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
 
In connection with BlackRock’s acquisition of BGI, effective December 1, 2009, the board of directors of BlackRock appointed John Varley and Robert E. Diamond Jr. to be members of the board of directors.  Messrs. Varley and Diamond were appointed to BlackRock’s board of directors as the two designees of the Barclays Parties pursuant to the Barclays Stockholder Agreement.
 
Mr. Varley is Group Chief Executive of Barclays PLC. Prior to being named to his current position in September 2004, he had served as Group Deputy Chief Executive beginning in January 2004.  He held the position of Group Finance Director from 2000 until the end of 2003. Mr. Varley joined the Executive Committee in September 1996 and was appointed to the Barclays' Board in June 1998. He was Chief Executive of Retail Financial Services from 1998 to 2000 and Chairman of the Asset Management Division from 1995 to 1998. Mr. Varley also serves as a non-executive director of AstraZeneca PLC.
 

 
3
 


 
Mr. Diamond is President of Barclays PLC and Chief Executive Officer of Corporate and Investment Banking and Wealth Management, comprising Barclays Capital, Barclays Corporate and Barclays Wealth. He is an Executive Director of the Boards of Barclays PLC and Barclays Bank PLC and has been a member of the Barclays Group Executive Committee since September 1997. He joined the firm in summer 1996. Mr. Diamond is a member of the Board of Directors for the Institute of International Finance and member of International Advisory Board of the British-American Business Council.
 
As discussed above, in connection with BlackRock’s acquisition of BGI, the Barclays Parties, which are affiliates of Barclays PLC, received shares of BlackRock Common Stock, Series B Preferred Stock and Series D Preferred Stock representing 4.8% of the outstanding Common Stock and 19.8% of the outstanding economic interests of BlackRock.
 
 
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
 
On December 1, 2009, BlackRock filed a certificate of designations with the Secretary of State of the State of Delaware for the purpose of amending its Amended and Restated Certificate of Incorporation to establish the designation, rights, preferences, limitations and privileges of the Series D Preferred Stock.
 
The terms of the Series D Preferred Stock are summarized below:
 
Rank .  The Series D Preferred Stock will rank pari passu in right of payment with respect to dividends and upon liquidation with the Series B Preferred Stock, the Series C Preferred Stock and any series of BlackRock’s preferred stock that by its terms ranks pari passu in right of payment as to dividends and/or upon liquidation with the Series D Preferred Stock.
 
Dividend .  The Series D Preferred Stock will be entitled to receive any dividend that is paid to holders of Common Stock. Any subdivisions, combinations, consolidations or reclassifications to the Common Stock must also be made accordingly to Series D Preferred Stock.
 
Liquidation Preference .  In the event of a liquidation, dissolution or winding up of BlackRock, the holders of the Series D Preferred Stock will be entitled to receive $0.01 per share of the respective preferred stock held, plus any outstanding and unpaid dividends, before any payments are made to holders of Common Stock or any other class or series of BlackRock’s capital stock ranking junior as to liquidation rights to Series D Preferred Stock. After such payment to the holders of Series D Preferred Stock and the holders of shares of any other series of BlackRock’s preferred stock ranking prior to the Common Stock as to distributions upon liquidation, the remaining assets of BlackRock will be distributed in accordance with the terms of BlackRock’s Amended and Restated Certificate of Incorporation, which in the case of the Series D Preferred Stock will be pro rata per share in accordance with the aggregate number of shares outstanding among (i) the holders of the then outstanding shares of Series D Preferred Stock and any other series entitled to participate on the same basis, (ii) the holders of any other series of BlackRock capital stock entitled to participate in accordance with the terms of their participation and (iii) the holders of the Common Stock and any other shares of BlackRock capital stock ranking pari passu on a share for share basis with the Common Stock as to distributions upon liquidation.
 
Voting Rights .  The Series D Preferred Stock have no voting rights except as otherwise provided by applicable law.
 
Conversion .  Each share of Series D Preferred Stock will be automatically converted into one share of Series B Preferred Stock on the date which is 20 days after an information statement in connection with the Amended and Restated Purchase Agreement is first mailed by BlackRock to holders of its Common Stock in accordance with Rule 14c-2 under the Exchange Act. No optional conversion is permitted. Upon any transfer of Series B Preferred Stock to any person other than an affiliate of the initial holder, each share of Series B Preferred Stock will be automatically converted into one share of Common Stock.
 
The foregoing description of the Series D Preferred Stock is qualified in its entirety by reference to the certificate of designations for Series D Preferred Stock, which is filed as Exhibit 3.1 hereto and is hereby incorporated into this Form 8-K by reference.
 
 
Item 9.01 Financial Statements and Exhibits.
 
(a) and (b)
 

 
4
 


 
Financial Statements required to be filed by this Item will be filed with the SEC 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 with respect to Item 2.01.
 
 
(d)
  
Exhibits.
   
2.1
 
Amended and Restated Stock Purchase Agreement, dated as of June 16, 2009, by and among Barclays Bank PLC, Barclays PLC (solely for the purposes of Section 6.16, Section 6.18 and Section 6.24) and BlackRock, Inc.
3.1
 
Certificate of Designations of Series D Participating Preferred Stock
10.1
 
Stockholder Agreement, dated as of December 1, 2009, by and among BlackRock, Inc., Barclays Bank PLC and Barclays BR Holdings S.à r.l.
10.2
 
Revolving Credit Agreement, dated as of December 1, 2009, by and among BlackRock, Inc., Barclays Bank PLC, as administrative agent and as a lender, a group of lenders and Barclays Capital, as sole lead arranger, sole lead bookrunner and syndication agent.
10.3
 
Registration Rights Agreement, dated as of December 1, 2009, by and among BlackRock, Inc., Barclays Bank PLC and Barclays BR Holdings S.à r.l.
99.1
 
Press Release dated December 1, 2009 issued by BlackRock, Inc.
     

 
5
 
 
 
 
 
 

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/ Daniel R. Waltcher
Date: December 3, 2009
         
Daniel R. Waltcher
           
Managing Director and Deputy General Counsel
             


 
6
 

 
 
EXHIBIT INDEX
 
     
2.1
 
Amended and Restated Stock Purchase Agreement, dated as of June 16, 2009, by and among Barclays Bank PLC, Barclays PLC (solely for the purposes of Section 6.16, Section 6.18 and Section 6.24) and BlackRock, Inc.
3.1
 
Certificate of Designations of Series D Participating Preferred Stock
10.1
 
Stockholder Agreement, dated as of December 1, 2009, by and among BlackRock, Inc., Barclays Bank PLC and Barclays BR Holdings S.à r.l.
10.2
 
Revolving Credit Agreement, dated as of December 1, 2009, by and among BlackRock, Inc., Barclays Bank PLC, as administrative agent and as a lender, a group of lenders and Barclays Capital, as sole lead arranger, sole lead bookrunner and syndication agent.
10.3
 
Registration Rights Agreement, dated as of December 1, 2009, by and among BlackRock, Inc., Barclays Bank PLC and Barclays BR Holdings S.à r.l.
99.1
 
Press Release dated December 1, 2009 issued by BlackRock, Inc.

 

 
7

 


Exhibit 2.1

EXECUTION COPY
 
AMENDED AND RESTATED STOCK PURCHASE AGREEMENT
 
by and among
 
BARCLAYS BANK PLC,
 
BARCLAYS PLC (solely for the purposes of Section 6.16, Section 6.18 and Section 6.24)
 
and
 
BLACKROCK, INC.
 
Dated as of June 16, 2009

 

 
 
 

 
Table of Contents
 
ARTICLE I
 
DEFINITIONS AND TERMS
 
Section 1.1
Certain Definitions
2
Section 1.2
Other Terms
32
Section 1.3
Other Definitional Provisions
32
     
ARTICLE II
 
PURCHASE AND SALE OF THE TRANSFERRED EQUITY INTERESTS
 
Section 2.1
Purchase and Sale
32
Section 2.2
Purchase Price
33
Section 2.3
Post-Closing Purchase Price Adjustment
35
Section 2.4
Closing
40
Section 2.5
Deliveries by Buyer
40
Section 2.6
Deliveries by Seller
41
Section 2.7
Reserved.
42
Section 2.8
Certain Adjustments
42
Section 2.9
Section 116 of the Canadian Tax Act
42
     
ARTICLE III
 
REPRESENTATIONS AND WARRANTIES RELATING TO SELLER
 
Section 3.1
Organization and Qualification
44
Section 3.2
Ownership
44
Section 3.3
Corporate Authority
44
Section 3.4
Binding Effect
44
Section 3.5
Consents and Approvals
45
Section 3.6
Non-Contravention
45
Section 3.7
Investment Purpose
46
Section 3.8
Finders’ Fees
46
Section 3.9
Litigation
46
Section 3.10
No Other Representations or Warranties
46
     
ARTICLE IV
 
REPRESENTATIONS AND WARRANTIES RELATING TO THE
TRANSFERRED ENTITIES AND THE BGI BUSINESS
 
Section 4.1
Organization and Qualification
47


 
i
 


Section 4.2
Capitalization
47
Section 4.3
Consents and Approvals
48
Section 4.4
Non-Contravention
48
Section 4.5
Financial Information
49
Section 4.6
Litigation and Claims
50
Section 4.7
Taxes
50
Section 4.8
Employee Benefits
54
Section 4.9
Permits
57
Section 4.10
Environmental Matters
57
Section 4.11
Intellectual Property
58
Section 4.12
Labor
59
Section 4.13
Contracts
60
Section 4.14
Absence of Changes
62
Section 4.15
Compliance
63
Section 4.16
Assets Under Management; Investment Advisory Activities
65
Section 4.17
Funds
66
Section 4.18
Advisory Clients
70
Section 4.19
ERISA Compliance
70
Section 4.20
Absence of Undisclosed Liabilities
71
Section 4.21
Real Property
71
Section 4.22
No Other Business
72
Section 4.23
Compliance With Laws
72
Section 4.24
Insurance
73
Section 4.25
Board and Stockholder Approval
73
Section 4.26
Finders’ Fees
73
Section 4.27
Affiliate Arrangements
73
Section 4.28
No Other Representations or Warranties
74
     
ARTICLE V
 
REPRESENTATIONS AND WARRANTIES RELATING TO BUYER
 
Section 5.1
Organization and Qualification
74
Section 5.2
Capitalization
75
Section 5.3
Corporate Authorization
75
Section 5.4
Consents and Approvals
76
Section 5.5
Non-Contravention
76
Section 5.6
Binding Effect
77
Section 5.7
Equity Consideration
77
Section 5.8
SEC Matters
77
Section 5.9
Absence of Undisclosed Liabilities
78
Section 5.10
Absence of Certain Changes
78
Section 5.11
Financial Capability
79
Section 5.12
Investment Purpose
79
Section 5.13
Investment Advisory Activities
79


 
ii
 


Section 5.14
Information in Proxy
80
Section 5.15
Section 15(f) of the Investment Company Act
80
Section 5.16
Filings
80
Section 5.17
Finders’ Fees
80
Section 5.18
Litigation
80
Section 5.19
Arrangements with PNC and Merrill Lynch
80
Section 5.20
No Other Representations or Warranties
81
     
ARTICLE VI
 
COVENANTS
 
Section 6.1
Access and Information
81
Section 6.2
Conduct of Business of the Transferred Entities
85
Section 6.3
Conduct of Business of Buyer
89
Section 6.4
Reasonable Best Efforts
90
Section 6.5
Tax Matters
92
Section 6.6
Client Approvals
104
Section 6.7
Proxy Statements; Shareholder Meetings
105
Section 6.8
Section 15(f)
105
Section 6.9
Other Registered Funds
106
Section 6.10
Non-Registered Funds and Advisory Clients
107
Section 6.11
Certain Post-Closing Filings
108
Section 6.12
Continuity of Employment; Post-Closing Obligations of the Transferred Entities to Certain Employees
108
Section 6.13
Ancillary Agreements
111
Section 6.14
Insurance
111
Section 6.15
Non-Solicitation
111
Section 6.16
Parent Shareholder Approval
112
Section 6.17
Information Statement
114
Section 6.18
Confidentiality
115
Section 6.19
Base Revenue Schedule
116
Section 6.20
Release
116
Section 6.21
Intercompany Items
116
Section 6.22
Information for Fund Boards
116
Section 6.23
Interest in Intellectual Property
116
Section 6.24
Non-Compete
120
Section 6.25
Cooperation
121
Section 6.26
Pre-Closing Transactions
122
Section 6.27
Notification of Certain Matters
126
Section 6.28
Financial Statements
127
Section 6.29
Corporate Actions
128
Section 6.30
Securities Lending Guarantees
128
Section 6.31
Closing Cash
129
Section 6.32
German Company Certificate
130


 
iii
 


Section 6.33
Anti-Takeover
130
Section 6.34
Further Assurances
130
     
ARTICLE VII
 
CONDITIONS TO THE CLOSING
 
Section 7.1
Conditions to the Obligations of Buyer and Seller with respect to the Closing
131
Section 7.2
Conditions to the Obligation of Buyer with respect to the Closing
132
Section 7.3
Conditions to the Obligation of Seller with respect to the Closing
133
     
ARTICLE VIII
 
SURVIVAL; INDEMNIFICATION; CERTAIN REMEDIES
 
Section 8.1
Survival
134
Section 8.2
Indemnification by Seller
135
Section 8.3
Indemnification by Buyer
138
Section 8.4
Notice; Third Party Claim Indemnification Procedures; etc.
139
Section 8.5
Damages
142
Section 8.6
Adjustments to Losses
142
Section 8.7
Payments
143
Section 8.8
Characterization of Indemnification Payments
143
Section 8.9
Mitigation
143
Section 8.10
Limitations
144
Section 8.11
Remedies
144
Section 8.12
Effect of Investigation
144
Section 8.13
Arbitration
144
     
ARTICLE IX
 
TERMINATION
 
Section 9.1
Termination
145
Section 9.2
Effect of Termination
146
Section 9.3
Termination Fee
147
     
ARTICLE X
 
MISCELLANEOUS
 
Section 10.1
Notices
147
Section 10.2
Amendment; Waiver
149
Section 10.3
No Assignment or Benefit to Third Parties
149
Section 10.4
Entire Agreement
149


 
iv
 


Section 10.5
Fulfillment of Obligations
150
Section 10.6
Public Disclosure
150
Section 10.7
Expenses
150
Section 10.8
Schedules
150
Section 10.9
Governing Law; Injunctive Relief; Waiver of Trial by Jury
151
Section 10.10
Counterparts
152
Section 10.11
Headings
152
Section 10.12
Severability
152
Section 10.13
Joint Negotiation
152
Section 10.14
Parent
152


 
v
 


EXHIBITS AND ANNEXES

EXHIBITS
 
Exhibit A
-
Stockholder Agreement
Exhibit B
-
Registration Rights Agreement
Exhibit C
-
Cash Fund Support Agreements
Exhibit D
-
Release
Exhibit E
-
Financing
Exhibit F
-
Buyer Required Approvals
Exhibit G
-
Seller Required Approvals
Exhibit H
-
Certificate of Designations
Exhibit I
-
Claims Procedures
Exhibit J
-
Service Level Agreement

ANNEXES
 
Annex 1.1(a)
-
Knowledge Persons of Seller
Annex 1.1(b)
-
Knowledge Persons of Buyer
Annex 6.5
-
Conduct of Certain VAT Matters
Annex 6.5(p)
-
Plans
Annex 6.12
-
Post-Closing Payments and Awards
Annex 9.1(c)
-
Certain Jurisdictions


 
vi
 

This AMENDED AND RESTATED STOCK PURCHASE AGREEMENT, dated as of June 16, 2009 (this “ Agreement ”), by and among BARCLAYS PLC, a public limited company organized under the Laws of England and Wales (“ Parent ”) (solely for the purposes of Section 6.16, Section 6.18 and Section 6.24), BARCLAYS BANK PLC, a public limited company organized under the Laws of England and Wales and a Subsidiary of Parent (“ Seller ”), and BLACKROCK, INC., a corporation organized under the Laws of Delaware (“ Buyer ”).
 
W I T N E S S E T H :
 
WHEREAS, the parties have entered into a Stock Purchase Agreement, dated June 16, 2009 (the “ Original Agreement ”).
 
WHEREAS, Seller directly or indirectly owns all of the Transferred Equity Interests;
 
WHEREAS, upon the terms and subject to the conditions set forth in this Agreement, Seller desires to cause the Transferred Equity Interests to be sold to Buyer and Buyer desires to purchase the Transferred Equity Interests from Seller, in accordance with Section 6.26 of the Seller’s Disclosure Schedules;
 
WHEREAS, as of the date hereof, the Majority Stockholders hold shares of Buyer Common Stock that in the aggregate represent not less than a majority of the total voting power of the capital stock of Buyer;
 
WHEREAS, as a condition and an inducement to the willingness of Seller to enter into the Original Agreement, the Majority Stockholders, in their capacity as stockholders of Buyer, concurrently with the execution of the Original Agreement, delivered, in their capacity as the holders of shares of Buyer Common Stock that in the aggregate represent not less than a majority of the total voting power of the capital stock of Buyer, Written Consents containing their consent to the Share Issuance, pursuant to and in accordance with the applicable provisions of the Delaware General Corporation Law, the rules and regulations of the NYSE and the Organizational Documents of Buyer;
 
WHEREAS, Seller (solely for the purpose of Section 9.16 of the MSA), UK Holdings and Blue Sparkle, L.P. entered into the MSA, dated as of April 9, 2009;
 
WHEREAS, the MSA provided that Seller and its Affiliates were permitted to conduct certain solicitation activities during the time period and on the terms and conditions set forth therein, and Seller and Buyer entered into discussions in respect of the terms and conditions of the Original Agreement and the transactions contemplated hereunder;
 
WHEREAS, prior to or concurrently with the execution and delivery of the Original Agreement, the MSA was terminated in accordance with the terms thereof;
 

 
 
 

WHEREAS, Seller and Buyer desire to make certain representations, warranties, covenants and agreements in connection with the Agreement;
 
WHEREAS, pursuant to Section 2.3(d) of the Original Agreement, the parties agreed that they shall cooperate and work in good faith to determine the appropriate provisions relating to the post-closing purchase price adjustment provisions and procedures set forth in Section 2.3 (and the related defined terms) and the other provisions set forth in Article VI relating to the amount of cash and capital to be held by one or more of the Transferred Entities;
 
WHEREAS, the parties desire to amend and restate the Original Agreement in order to make certain amendments thereto, including amendments to the appropriate provisions relating to the post-closing purchase price adjustment provisions and procedures set forth in Section 2.3 (and the related defined terms) and the other provisions set forth in Article VI relating to the amount of cash and capital to be held by one or more of the Transferred Entities; and
 
WHEREAS, the parties are hereby amending and restating the Original Agreement to reflect changes since the Original Agreement.
 
NOW, THEREFORE, in consideration of the premises and the mutual representations, warranties, covenants and undertakings contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties to this Agreement, intending to be legally bound, agree as follows:
 
ARTICLE I
 
DEFINITIONS AND TERMS
 
Section 1.1            Certain Definitions .  As used in this Agreement, the following terms have the meanings set forth below:
 
“ 2008 Unaudited Financial Statements ” has the meaning set forth in Section 4.5(a).
 
“ 2009 Year End Financial Statements ” has the meaning set forth in Section 6.28(c).
 
“ AAA ” has the meaning set forth in Section 8.13(a).
 
“ Accrued Compensation Liabilities ” has the meaning set forth in Section 6.12(h).
 
“ Accrued Compensation Liabilities Funds ” has the meaning set forth in Section 6.12(h).
 
“ Acquisition Proposal ” means any inquiry, proposal or offer with respect to (i) a merger, joint venture, partnership, consolidation, dissolution, liquidation, tender offer,
 

 
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recapitalization, reorganization, share exchange, business combination or similar transaction in relation directly or indirectly to all or any portion of the BGI Business or the Transferred Entities, or (ii) any other direct or indirect acquisition of assets or interests in the BGI Business or any of the Transferred Entities; but shall not include any transaction involving an acquisition of Parent or its securities, except to the extent that any such transaction impedes or materially delays the consummation of the transactions contemplated herein.
 
“ Adjusted Assets Under Management ” as of any date means the sum, for all Client accounts in question as of such date, of the amount, expressed in U.S. Dollars, of assets under management by each of the Transferred Entities for each such account as of such date valued (a) for purposes of calculating the Base Revenue Run Rate as of the Base Date, in the same manner as provided for the calculation of base investment management fees payable to such Person with respect to such account by the terms of the Investment Advisory Arrangements applicable to such account, and for purposes of calculating the Base ETF Revenue Run Rate as of the Base Date, by reference to the unitary fee rate, the total expense ratio or the contractual fee rate, as applicable, payable to such Person with respect to such account by the terms of the Investment Advisory Arrangements applicable to such account, and (b) for purposes of calculating the Closing Adjustment Revenue Run Rate and Closing Adjustment ETF Revenue Run Rate, at the amount calculated pursuant to subsection (a) above, (i) increased by a positive amount equal to additions, contributions and reinvestments (other than reinvestments of distributions to the extent that they would result in double-counting of assets) actually funded to such account after the Base Date and on or prior to the relevant Closing Measurement Valuation Date, calculated with respect to each addition, contribution or reinvestment as of the time it is made, (ii) increased with respect to any new accounts opened after the Base Date and on or prior to the relevant Closing Measurement Valuation Date and any additions to existing accounts on or prior to the relevant Closing Measurement Valuation Date, by the amount of additions, contributions (net of terminations, withdrawals, redemptions and repurchases) and reinvestments (other than reinvestments of distributions to the extent that they would result in double-counting of assets) actually funded to such account after the Base Date and on or prior to the relevant Closing Measurement Valuation Date, calculated with respect to each addition, contribution, reinvestment, termination, withdrawal or repurchase as of the time it is made or occurs, (iii) increased by new accounts and additions to existing accounts that have not actually funded on or prior to the Closing Measurement Date, but have provided a written indication that they plan to fund within 60 days after the Closing Measurement Date, (iv) decreased by terminations, withdrawals, redemptions and repurchases actually funded out of such account after the Base Date and prior to the relevant Closing Measurement Valuation Date, calculated, with respect to each termination, withdrawal, redemption and repurchase as of the time it occurs and valued for such purpose as of the relevant Closing Measurement Valuation Date, (v) decreased by the portion of any account as to which an effective notice of termination has been received (unless such notice has been revoked prior to the Closing Measurement Date); and (vi) decreased by the entire amount of any Contingent Account; provided , however , that:
 
(A)           in each case, except as set forth in clause (b)(iii) above, additions and contributions shall be taken into account only when actually funded, and except as set forth in clause (b)(v) above, withdrawals, redemptions and repurchases shall be taken into account when
 

 
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they are actually funded out of such account or, if earlier, the date on which the Person in question receives notice communicating an intention to withdraw any assets from an existing account (unless such notice has been revoked prior to the applicable date);
 
(B)           in each case, any assets under management for any account for which the Person in question acts as investment adviser and sub-adviser shall be counted only once;
 
(C)           in each case, any assets under management for any set of accounts one of which invests in the other shall be counted only once if the Person in question or an Affiliate thereof acts as investment adviser to both, except to the extent that an investment management fee is payable to one or more Transferred Entities in respect of two or more accounts;
 
(D)           in each case, for purposes of calculating the Base Revenue Run Rate as of the Base Date, assets under management under Investment Advisory Arrangements expected to be transferred to New Transferred Entities pursuant to Section 6.26(a) shall be included to the extent not already included as assets under management of any other Transferred Entity, as of such date; and
 
(E)            in no case shall any Client’s Adjusted Assets Under Management be less than zero.
 
For purposes of this Agreement, investment management fees include all fees in respect of discretionary, non-discretionary and subadvised Investment Advisory Arrangements.
 
“ Advisory Client ” means an advisory client of one or more Transferred Entities other than a Fund.
 
“ Affiliate ” means, with respect to any Person, any other Person directly or indirectly Controlling, Controlled by, or under common Control with, such Person as of the date on which, or at any time during the period for which, the determination of affiliation is being made.
 
“ Agreement ” shall have the meaning set forth in the Preamble.
 
“ Allocation ” has the meaning set forth in Section 6.5(g)(i).
 
“ Alternative Stub Period Adjustment ” means the amount, whether positive or negative, resulting from the combination of (a) the amount of additions, contributions and reinvestments (or notices thereof) to accounts (other than ETFs) starting on the date immediately after the relevant Closing Measurement Valuation Date therefor and ending on and including the Closing Measurement Date that would have been included in the determination pursuant to clauses (b)(i), (b)(ii) and (b)(iii) of the definition of Adjusted Assets Under Management (taking into account the clauses under the second proviso at the end of such definition) if the relevant Closing Measurement Valuation Date were the Closing Measurement Date and (b) the amount of terminations, withdrawals, redemptions and repurchases (or notices thereof) from accounts (other
 

 
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than ETFs) starting on the date immediately after the relevant Closing Measurement Valuation Date and ending on and including the Closing Measurement Date that would have been included in the determination pursuant to clauses (b)(iv) and (b)(v) of the definition of Adjusted Assets Under Management (taking into account the clauses under the second proviso at the end of such definition) if the relevant Closing Measurement Valuation Date were the Closing Measurement Date.  For purposes of the foregoing calculation, the amounts in items (a) and (b) shall be determined, in each case, on a Fund by Fund basis daily, by multiplying increases or decreases to each Fund by the actual base fee rates applicable in respect of such Fund as of the applicable date of calculation.
 
“ Alternative Termination Fee ” has the meaning set forth in Section 9.3(b).
 
“ Ancillary Agreement ” means each of the Transition Services Agreement, the Cash Fund Support Agreements, the Stockholder Agreement and the Registration Rights Agreement.
 
“ Antitrust Laws ” mean all Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade.
 
“ Applicable Date ” has the meaning set forth in Section 5.8(a).
 
“ Applicable Local Law ” has the meaning set forth in Section 4.8(c).
 
“ Applicable Rate ” means from time to time the 30 day London Interbank Offered Rate plus 200 basis points.
 
“ Assignment Requirements ” means, with respect to any Existing Advisory Contract, the necessary consents and approvals under applicable Law and under such Existing Advisory Contract to effect (A) the assignment or continuation of such Existing Advisory Contract or the replacement of such Existing Advisory Contract with a New Advisory Contract (and shall not include an “interim contract” pursuant to Rule 15a-4 under the Investment Company Act), in connection with the transactions contemplated by this Agreement or (B) a change of control of the advisor, subadvisor, investment manager, trustee or similar such party in connection with the transactions contemplated by this Agreement.
 
“ Assumed Benefit and Compensation Arrangement ” shall have the meaning set forth in Section 4.8(a).
 
“ Audited Balance Sheets ” has the meaning set forth in Section 6.28(a).
 
“ Audited Closing Balance Sheet ” has the meaning set forth in Section 6.28(d).
 
“ Audited Financial Statements ” has the meaning set forth in Section 6.28(a).
 

 
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“ Audited Operating Expense Amount ” means the operating expenses figure for the year-ended December 31, 2008, contained in the audited combined statement of income for the Transferred Entities, which Seller is required to deliver to Buyer pursuant to Section 6.28(a).
 
“ Australia Company ” means Barclays Global Investors Australia Limited, a company limited by shares organized under the Laws of Australia.
 
“ Australia Holdings ” means Barclays Global Investors Australia Holdings Pty Limited, a proprietary limited company organized under the Laws of Australia.
 
“ Australia Services ” means Barclays Global Investors Australia Services Limited, a company limited by shares organized under the Laws of Australia.
 
“ Australian Entity ” means each of Australia Company, Australia Holdings, Australia Services and each other Transferred Entity which is (a) incorporated in any jurisdiction within Australia, (b) resident for any Tax purpose in Australia and (c) trading in Australia through a permanent establishment in Australia.
 
“ Bank UK Retirement Fund ” means the Barclays Bank UK Retirement Fund.
 
“ Base Date ” means April 30, 2009.
 
“ Base ETF Revenue Run Rate ” means the Revenue Run Rate for ETFs calculated as of the Base Date, as set forth in the Base Revenue Schedule as of the Base Date.
 
“ Base Revenue Run Rate ” means the Revenue Run Rate calculated as of the Base Date, as set forth on the Base Revenue Schedule prepared as of the Base Date.
 
“ Base Revenue Schedule ” has the meaning set forth in Section 4.16(a).
 
“ Benefit and Compensation Arrangements ” has the meaning set forth in Section 4.8(a).
 
“ BGI Affiliate Arrangement ” has the meaning set forth in Section 4.27(a).
 
“ BGI Business ” means together (a) the business of managing investment assets and providing investment management products and services, including securities lending, and any promotional, marketing, distribution or investor servicing services relating thereto and any administrative, custodial, transfer agency or other ancillary services, relating to any such products and services, as conducted by Parent and its Affiliates, the assets, liabilities and results of operations of which constitute the Unaudited Financial Statements, during the period reflected in the Unaudited Financial Statements and thereafter through the Closing and (b) the ETF business of Banco Barclays S.A. in Brazil.
 
“ BGI Marks ” has the meaning set forth in Section 6.23(e).
 

 
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“ BIPRU ” means the Prudential Sourcebook for Banks, Building Societies and Investment Firms promulgated by the UK Financial Services Authority, as in effect from time to time.
 
“ Books and Records ” means (i) such portion of the books and records of Seller and its Affiliates (or true and complete copies thereof) to the extent they relate to the Transferred Entities or the BGI Business, including the minute books, Tax Returns, corporate charters and by laws or comparable constitutive documents, records of share issuances, and related corporate records of the Transferred Entities, manuals, financial records, documents, files, notes, materials and other information in paper, electronic or other form in which they are maintained by the Transferred Entities or Seller, as applicable, (ii) any Employee records and (iii) all files primarily relating to any Litigation with respect to which the Transferred Entities may be subject to liability.
 
“ Brazil Company ” means a Person that Seller shall form, incorporate or otherwise establish, or cause to be formed, incorporated or otherwise established, prior to the Closing under applicable Laws in Brazil in accordance with Section 6.26(a).
 
“ Broker-Dealers ” means collectively US Global Investors Services and US Global Investors Fund Distribution Company.
 
“ Business Day ” means any day other than a Saturday, a Sunday or a day on which banks in London or New York City are authorized or obligated by Law or executive order to close.
 
“ Buyer ” has the meaning set forth in the Preamble.
 
“ Buyer Balance Sheet ” has the meaning set forth in Section 5.9.
 
“ Buyer Common Stock ” means the common stock, par value $0.01 per share, of Buyer.
 
“ Buyer Common Stock Consideration ” means that number of shares of Buyer Common Stock (rounded down to the next whole share) obtained by multiplying the Buyer Common Stock Primary Amount by 0.0515; provided, however, that such number shall be increased by that number of shares, if any, of Buyer Common Stock necessary for the Buyer Common Stock Consideration to represent 4.9% of the issued and outstanding shares of Buyer Common Stock immediately following such issuance taking into account any issuances of Buyer Common Stock occurring contemporaneously with the Closing (excluding any shares that are subject to forfeiture to Buyer pursuant to the terms of the Quellos Agreement).
 
“ Buyer Common Stock Primary Amount ” means the number of shares of Buyer Common Stock issued and outstanding on a primary basis on the day immediately prior to the Closing; provided , however , that for purposes of determining the Buyer Common Stock Primary Amount, shares of Buyer Common Stock to be issued contemporaneously with the Closing  (excluding any shares issued to Seller or one of its designees pursuant to this Agreement) shall
 

 
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be deemed to be outstanding for purposes of calculating this amount; provided , however , that the Buyer Common Stock Primary Amount shall be reduced by a number equal to the number of shares of Buyer Common Stock that are subject to forfeiture to Buyer pursuant to the terms of the Quellos Agreement.
 
“ Buyer Financial Statements ” has the meaning set forth in Section 5.8(d).
 
“ Buyer Fundamental Representations ” has the meaning set forth in Section 8.3(a)(i).
 
“ Buyer Limit ” has the meaning set forth in Section 8.3(b).
 
“ Buyer Indemnified Party ” has the meaning set forth in Section 8.2(a).
 
“ Buyer Material Adverse Effect ” means an event, circumstance, fact, change, development, condition or effect that has a material adverse effect on the business, assets, properties, results of operations or condition (financial or otherwise) of Buyer and its Subsidiaries, taken as a whole; provided that none of the following (or the results thereof) shall contribute to or be a Buyer Material Adverse Effect:  (i) any change in Law or accounting standards, but only to the extent that Buyer and its Subsidiaries, taken as a whole, are not materially disproportionately adversely affected compared to other asset managers and providers of investment management products and services generally; (ii) any change in economic or business conditions locally or globally generally, but only to the extent that Buyer and its Subsidiaries, taken as a whole, are not materially disproportionately adversely affected compared to other asset managers and providers of investment management products and services generally; (iii) any events, conditions or trends in economic, business or financial conditions generally affecting the investment management industry, including changes in prevailing interest rates, currency exchange rates and price levels or trading volumes in the United States or foreign securities markets; (iv) any change resulting from or arising out of hurricanes, earthquakes, floods or other natural disasters; (v) any change in assets under management resulting from changes in asset valuation or market price fluctuations; (vi) the effects of the actions that are (A) expressly required by this Agreement, (B) taken by Buyer or its Subsidiaries with the prior written consent of Seller or (C) not taken by Buyer or its Subsidiaries at the written request of Seller or due to Seller’s refusal to provide its consent therefor and (vii) in and of themselves, any changes in the trading price or trading volume of Buyer Common Stock or the failure of Buyer to meet estimates, projections, forecasts or earnings predictions; provided that the exception in this clause (vii) shall not include the underlying causes thereof.
 
“ Buyer Preferred Stock ” means the preferred stock, par value $0.01 per share, of Buyer.
 
“ Buyer Preferred Stock Consideration ” means the Buyer Series B Preferred Stock Consideration and, if applicable, the Buyer Series D Preferred Stock Consideration.
 
“ Buyer Preferred Stock Primary Amount ” means the number of shares of Buyer Preferred Stock issued and outstanding on a primary basis on the day immediately prior to the
 

 
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Closing; provided , however , that for purposes of determining the Buyer Preferred Stock Primary Amount, shares of Buyer Preferred Stock to be issued contemporaneously with the Closing (excluding any shares issued to Seller or one of its designees pursuant to this Agreement) shall be deemed to be outstanding and shares of Buyer Preferred Stock that will be converted into or exchanged for Buyer Common Stock contemporaneously with the Closing shall be deemed to be not outstanding; provided , however , that the Buyer Preferred Stock Primary Amount shall be reduced by a number equal to the number of shares of Buyer Common Stock that are subject to forfeiture to Buyer pursuant to the terms of the Quellos Agreement.
 
“ Buyer Regulatory Impediments ” means (i) conditions, limitations, restrictions or requirements, including any sales, divestitures, hold separates or other disposals, imposed upon Buyer or any of its Affiliates in connection with obtaining or failing to obtain the approval of any Government Entity to the transactions contemplated hereby, or (ii) prohibitions under any applicable Law that would, in each case of (i) and (ii) individually or in the aggregate, reasonably be expected to be materially adverse to the business, assets, results of operations or condition (financial or otherwise) of (a) US Bank and its Subsidiaries, taken as a whole, (b) the Transferred Entities, taken as a whole (other than US Bank and its Subsidiaries, taken as a whole), or (c) Buyer and its Controlled Affiliates, taken as a whole.
 
“ Buyer SEC Reports ” has the meaning set forth in Section 5.8(a).
 
“ Buyer Series A Preferred Stock ” means Series A Convertible Participating Preferred Stock, par value $0.01 per share, of Buyer.
 
“ Buyer Series B Preferred Stock ” means Series B Convertible Participating Preferred Stock, par value $0.01 per share, of Buyer.
 
“ Buyer Series B Preferred Stock Consideration ” means that number of shares (rounded down to the nearest whole number) of Buyer Series B Preferred Stock equal to (a) the product of (i) the Buyer Common Stock Primary Amount multiplied by (ii) 0.1475, plus (b) the product of (i) the Buyer Preferred Stock Primary Amount multiplied by (ii) 0.1990; provided , however , in no event will the sum of the Buyer Common Stock Consideration and the Buyer Series B Preferred Stock Consideration exceed the Total Share Amount.
 
“ Buyer Series C Preferred Stock ” means Series C Convertible Participating Preferred Stock, par value $0.01 per share, of Buyer.
 
“ Buyer Series D Preferred Stock ” means the Series D Participating Preferred Stock, par value $0.01 per share, of Buyer.
 
“ Buyer Series D Preferred Stock Consideration ” means that number of shares of Buyer Series D Preferred Stock equal to the excess, if any, of (i) the Total Share Amount over (ii) the sum of (x) the Buyer Common Stock Consideration plus (y) the Buyer Series B Preferred Stock Consideration.
 
“ Buyer Threshold ” has the meaning set forth in Section 8.3(b).
 

 
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“ Buyer’s Disclosure Schedules ” means the disclosure schedules delivered by Buyer to Seller immediately prior to the execution of this Agreement.
 
“ Buyer’s i-Marks ” has the meaning set forth in Section 6.23(d).
 
“ Buyer’s Portion ” has the meaning set forth in Section 6.5(f)(x).
 
“ Buyer's Purchase Price Adjustment ” means any payment by Buyer to Seller pursuant to Section 2.3(a)(v)(III) or (IV).
 
“ Buyer’s Required Approvals ” has the meaning set forth in Section 5.4.
 
“ California Corporation ” means Barclays California Corporation, a corporation organized under the Laws of the State of California, or any successor thereof.
 
“ Canada Company ” means Barclays Global Investors Canada Limited, a corporation organized under the Laws of Ontario.
 
“ Canada Holdings ” means Barclays Global Investors Holdings Canada Limited, a corporation organized under the Laws of Ontario.
 
“ Canada Services ” means Barclays Global Investors Services Canada Limited, a corporation organized under the Laws of Ontario.
 
“ Canadian Tax Act ” has the meaning set forth in Section 2.9.
 
“ Capital Statements ” has the meaning set forth in Section 2.3(a)(i).
 
“ Cash Fund ” has the meaning set forth in Section 6.1(c)(ii).
 
“ Cash Fund Support Agreements ” means the Cash Fund Support Agreements in the forms attached hereto as Exhibit C.
 
“ Cash Purchase Price ” means $6,600,000,000 minus (i) the principal amount of the Mexico Note, determined in U.S. Dollars based on the spot rate for purchasing an amount of Mexican Pesos equal to the principal amount of the Mexico Note with U.S. Dollars at 5:00 p.m. New York time on the day prior to the Closing Date, and (ii) the consideration furnished for the Japan Loan pursuant to Section 2.2(a), determined in U.S. Dollars based on the spot rate for purchasing an amount of Japanese Yen equal to ¥1,500,000,000 (or, if less, the outstanding principal amount of the Japan Loan immediately prior to Closing) with U.S. Dollars at 5:00 p.m. New York time on the day prior to the Closing Date.
 
“ Certificate of Designations ” means the certificate of designations that sets forth the designations, powers, preferences and rights of the Buyer Series D Preferred Stock in the form attached as Exhibit H.
 
“ Change in Recommendation ” has the meaning set forth in Section 6.16(b)(i).
 

 
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“ Chile Company ” means a Person that Seller shall form, incorporate or otherwise establish, or cause to be formed, incorporated or otherwise established, prior to the Closing under applicable Laws in Chile in accordance with Section 6.26(a).
 
“ Chile Holdings ” means a Person that Seller shall form, incorporate or otherwise establish, or cause to be formed, incorporated or otherwise established, prior to the Closing under applicable Laws in Chile in accordance with Section 6.26(a).
 
“ Circular ” has the meaning set forth in Section 6.16(a).
 
“ Claim Notice ” has the meaning set forth in Section 8.4(a).
 
“ Client ” of a Person means any other Person, including a Fund, to which such first Person or any of its Affiliates provides investment management services, trustee services or investment advisory services, including any sub-advisory services, relating to securities or other financial instruments, commodities, real estate or any other type of asset, pursuant to an Investment Advisory Arrangement.
 
“ Closing ” has the meaning set forth in Section 2.4.
 
“ Closing Actual Capital ” means, with respect to each Regulated Entity, the amount of its capital immediately prior to the Closing that is counted under applicable Law or applicable agreement with any Government Entity toward Required Regulatory Capital maintained by the applicable Regulated Entity.
 
“ Closing Actual Cash ” means, with respect to each Regulated Entity, the cash and liquid investments of such Regulated Entity immediately prior to the Closing.
 
“ Closing Adjustment ETF Revenue Run Rate ” means the Revenue Run Rate for all ETFs calculated in accordance with clause (b) of the definition of Adjusted Assets Under Management as of the Closing Measurement Date.
 
“ Closing Adjustment Revenue Run Rate ” means the Revenue Run Rate for all Clients calculated in accordance with clause (b) of the definition of Adjusted Assets Under Management, plus or minus , solely when the Closing Adjustment Revenue Run Rate is calculated for the purpose of (1) the definition of Revenue Run-Rate Adjustment Amount (solely to the extent that such term is used in the definition of Total Adjustment Amount Shares and not, for the avoidance of doubt, in the context of Section 2.3(c)) or (2) Section 7.1(e)(i), the net positive or negative amount of the Stub Period Adjustment; provided , however , that if the Closing Adjustment Revenue Run Rate, when calculated in accordance with the foregoing and for the purpose of (1) the definition of Revenue Run-Rate Adjustment Amount (solely to the extent that such term is used in the definition of Total Adjustment Amount Shares and not, for the avoidance of doubt, in the context of Section 2.3(c)) or (2) Section 7.1(e)(i), (I) is less than 105% of the amount that would trigger a failure of the condition set forth in Section 7.1(e)(i) to be satisfied and such percentage has decreased by more than 2.5 percentage points since the Closing Measurement Valuation Date applicable to Clients that are not ETFs or (II) is less than
 

 
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105% of the amount that would trigger a positive Revenue Run Rate Adjustment Amount at the Closing and such percentage has decreased by more than 2.5 percentage points since the Closing Measurement Valuation Date applicable to Clients that are not ETFs, then the Closing Adjustment Revenue Run Rate shall not be increased or decreased by the net positive or negative amount of the Stub Period Adjustment, but shall instead be increased by the positive amount of the Alternative Stub Period Adjustment or be decreased by the net negative amount of the Alternative Stub Period Adjustment, as the case may be.
 
“ Closing Date ” means the date upon which the Closing occurs.
 
“ Closing Date Financial Statements ” has the meaning set forth in Section 2.3(a)(i).
 
“ Closing Financial Statements ” has the meaning set forth in Section 5.8(d).
 
“ Closing Intercompany Loan ” means an amount due from a Transferred Entity to Parent or any of its Subsidiaries (other than a Transferred Entity) which is established through a note payable as described in Section 6.26(e)(ii) of this Agreement.
 
“ Closing Measurement Date ” means the closest Friday to the Closing that is not less than three Business Days prior to the date of the Closing; provided , however , if the Closing Measurement Date is not a Business Day, then it shall be the Business Day that is immediately prior to the applicable Friday.
 
“ Closing Measurement Valuation Date ” means (i) in the case of ETFs, the Closing Measurement Date; and (ii) in the case of Clients that are not ETFs, (A) in the context of calculating the Closing Adjustment Revenue Run Rate for purposes of (x) the definition of Revenue Run-Rate Adjustment Amount (solely to the extent that such term is used in the definition of Total Adjustment Amount Shares and not, for the avoidance of doubt, in the context of Section 2.3(c)) and (y) Section 7.1(e)(i), the close of business as of the last day of the calendar month ended not less than three Business Days prior to the Closing, and (B) in the context of calculating the Closing Adjustment Revenue Run Rate for any other purpose, the Closing Measurement Date.
 
“ Closing Net Working Capital ” means, with respect to each Transferred Entity, the Net Working Capital of such Transferred Entity as of immediately prior to the Closing.
 
“ Closing Net Working Capital Requirement ” has the meaning set forth in Section 6.26(e).
 
“ Closing Regulatory Capital Requirement ” has the meaning set forth in Section 6.26(e).
 
“ Closing Regulatory Cash Requirement ” has the meaning set forth in Section 6.26(e).
 

 
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“ Closing Required Regulatory Capital ” means, with respect to each Regulated Entity, 110% of the Required Regulatory Capital of such entity as of immediately prior to the Closing; provided, that with respect to US Bank and its Subsidiaries on a consolidated basis, the Closing Required Regulatory Capital shall be deemed equal to $515,500,000.
 
“ Closing Required Regulatory Cash ” means, with respect to each Regulated Entity, 110% of the Required Regulatory Cash of such entity as of immediately prior to the Closing.
 
“ Code ” means the Internal Revenue Code of 1986, as amended.
 
“ Comfort Letter ” has the meaning set forth in Section 2.9(b).
 
“ Commodity Exchange Act ” means the United States Commodity Exchange Act of 1936, as amended, and the rules and regulations thereunder.
 
“ Competing Activity ” has the meaning set forth in Section 6.24.
 
“ Confidentiality Agreement ” means the confidentiality agreement, dated April 21, 2009, between Seller and Buyer, as amended and supplemented.
 
“ Contingent Account ” means, in respect of any Client account of any Transferred Entity as of the Closing Measurement Date, (i) the portion (which may be 100%) of such account as to which the Client or any authorized representative of the Client has indicated orally or in writing to Seller or any of its Controlled Affiliates (if any Assignment Requirement applies to such Client account) or in writing (if no Assignment Requirement is applicable to such Client account) through any statement, notice or other communication on or prior to the Closing Measurement Date that it intends to withdraw and such indication has not been revoked or that such portion is or will be under review for possible withdrawal, redemption or termination and as to which the Client or such representative has not withdrawn such indication and (ii) any Client account of such Person which has not satisfied any Assignment Requirements applicable to such account; provided however, for purposes of calculating the Revenue Run Rate Adjustment Amount with respect to the Closing, any Client Accounts of such Person which has satisfied all Assignment Requirements applicable to such account as of the second Business Day preceding the Closing shall not be considered a “Contingent Account”, notwithstanding the fact that the Assignment Requirement for such account was not satisfied as of the Closing Measurement Date.
 
“ Contingent Account Resolution ” has the meaning set forth in Section 2.3(c)(ii).
 
“ Contract ” means, any agreement, undertaking, lease, sublease, license, sublicense, contract, note, mortgage, indenture, power of attorney, guarantee, arrangement, commitment or other binding obligation, whether oral or written, express or implied, in each case as amended, supplemented, waived or otherwise modified.
 

 
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“ Control ” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities, by contract or otherwise (and “ Controlled ” and “ Controlling ” shall have a correlative meaning).  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 control over any Fund to which it provides services unless it has a direct or indirect proprietary economic interest exceeding 25% of the equity interest in such Fund.
 
“ Controlled Affiliate ” means, with respect to any Person, an Affiliate thereof that is directly or indirectly Controlled by such Person.
 
“ Copyrights ” has the meaning set forth in the “Intellectual Property” definition.
 
“ CPA Firm ” has the meaning set forth in Section 2.3(a)(iv).
 
“ CRA ” has the meaning set forth in Section 2.9(b).
 
“ CTA ” has the meaning set forth in Section 4.15(b).
 
“ Deficit Price ” has the meaning set forth in Section 2.2(b)(iii).
 
“ Deficit Shares ” has the meaning set forth in Section 2.2(b)(i).
 
“ Delaware Holdings ” means a Person that Seller shall form, incorporate or otherwise establish, or cause to be formed, incorporated or otherwise established, prior to the Closing under applicable Laws of the State of Delaware in accordance with Section 6.26.
 
“ Delaware LLC ” means a limited liability company to be organized under Delaware law for the purpose of serving as sponsor and commodity pool operator of iShares Diversified Alternatives Trust.
 
“ Dispute ” has the meaning set forth in Section 8.13(a).
 
“ Dispute Notice ” has the meaning set forth in Section 2.3(a)(iii).
 
“ EC Merger Regulation ” means the Council Regulation 139/2004 on the control of concentrations between undertakings.
 
“ Employee ” means, as of any date, any employee of any Transferred Entity or any Transferred Employee.
 
“ Encumbrance ” means any lien, pledge, debt, charge, claim, encumbrance, security interest, option, mortgage, assessment, easement or any other similar restriction or limitation of any kind.
 
“ Environmental Law ” means any Law (including the Comprehensive Environmental Response, Compensation and Liability Act of 1980 or any other equivalent Law
 

 
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of applicable jurisdiction) or any Permit concerning (x) the protection, preservation or restoration of the environment (namely, air, surface water, vapor, groundwater, drinking water supply and surface or subsurface land or structures) or (y) the exposure to, or the use, storage, recycling, treatment, generation, transportation, processing, handling, management, release or disposal of, any hazardous substance or waste material.
 
“ EOP Option ” means an option to acquire shares in UK Holdings pursuant to the Equity Ownership Plan.
 
“ EOP Tax Losses ” has the meaning set forth in Section 6.5(f)(i).
 
“ Equity Consideration ” means (i) the shares of Buyer Common Stock Consideration and the Buyer Preferred Stock Consideration minus (ii) the Total Adjustment Amount Shares.
 
“ Equity Ownership Plan ” means the Barclays Global Investors Equity Ownership Plan.
 
“ Equity Rights ” has the meaning set forth in Section 4.2.
 
“ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended.
 
“ ERISA Affiliate ” has the meaning set forth in Section 4.8(e).
 
“ Estimated Liability Schedule ” has the meaning set forth in Section 6.12(h).
 
“ ETF ” means a pooled investment vehicle, unit investment trust, investment company, commodity pool or other collective or commingled investment vehicle that has each of the following characteristics: (A) such vehicle issues and redeems blocks of shares, units or similar interests that are commonly referred to as “creation units” or “basket amounts” and (B) the shares, units or similar interests in such vehicle are listed and traded on one or more exchanges and includes all investment vehicles included by the Transferred Entities in ETF business segment data.
 
“ Exchange Act ” means the United States Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder.
 
“ Existing Advisory Contract ” means any existing investment advisory, sub-advisory, investment management, trust or similar Contract that any Transferred Entity has with any Fund or Advisory Client as of the Closing or the date of this Agreement, as applicable.
 
“ Existing Reimbursement Agreements ” has the meaning set forth in Section 6.26(k).
 

 
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“ Existing Stockholder Agreements ” means (i) the Second Amended and Restated Stockholder Agreement, dated February 27, 2009, among Buyer, Merrill Lynch & Co., Inc. and Merrill Lynch Group, Inc., as such agreement is amended as of immediately prior to the execution of this Agreement, and (ii) the Amended and Restated Implementation and Stockholder Agreement, dated February 27, 2009, between Buyer and The PNC Financial Services Group, Inc., as such agreement is amended as of immediately prior to the execution of this Agreement.
 
“ Expense Amount ” has the meaning set forth in Section 9.3(b).
 
“ Fiduciary Requirement ” means any fiduciary requirement imposed by applicable Law or an Investment Advisory Arrangement with respect to the services performed for a Client pursuant to such Investment Advisory Arrangement, including but not limited to such fiduciary requirements with respect to compliance with investment guidelines.
 
“ Final Closing Net Working Capital ” has the meaning set forth in Section 2.3(a)(v).
 
“ Finance Limited ” means Barclays Global Investors Finance Limited, a private company limited by shares incorporated under the Laws of England and Wales.
 
“ FINRA ” means the Financial Industry Regulatory Authority created in July 2007 through the consolidation of the National Association of Securities Dealers, Inc. and the member regulation, enforcement and arbitration functions of the NYSE.
 
“ Foreign Benefit Plan ” has the meaning set forth in Section 4.8(i).
 
“ Foreign Transferred Entity ” means a Transferred Entity organized or formed under the Laws of a jurisdiction other than the United States or any political subdivision thereof.
 
“ Form 7-R ” has the meaning set forth in Section 4.15(b).
 
“ Form ADV ” has the meaning set forth in Section 4.15(a).
 
“ Form BD ” has the meaning set forth in Section 4.15(d).
 
“ Fund ” means, as of any date, any pooled investment vehicle, investment trust, investment company, collective fund, collective trust, commodity pool or other collective or commingled investment vehicle, unit-linked life insurance fund, unit trust, German KAG or commingled investment vehicle or, where applicable, the corporation or trust of which it is a series, for which one of the Transferred Entities acts or will, after a date prior to the Closing, act (i) as investment advisor, subadvisor, trustee, manager or sponsor or (ii) in a similar capacity under applicable Law, in each case, as of such date.  Notwithstanding anything in this Agreement to the contrary, representations, warranties, covenants and other agreements made in this Agreement with respect to Funds shall always be deemed to be made only with respect to, and
 

 
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only to the extent that, such Funds are under the Control of a Transferred Entity in respect of the subject matter of such representation, warranty, covenant or other agreement.
 
“ Fund Financial Statements ” has the meaning set forth in Section 4.17(d).
 
“ Fund Limited ” means Lakeville Fund Limited, an exempted company incorporated in the Cayman Islands with limited liability.
 
“ GAAP ” shall mean United States generally accepted accounting principles.
 
“ Germany Company ” means Barclays Global Investors (Deutschland) AG, a corporation organized under the Laws of Germany registered with the commercial register at the local court of Munich under HRB 134527.
 
“ Germany Holdings ” means Barclays Global Investors Holdings Deutschland GmbH, a limited liability company organized under the Laws of Germany registered with the commercial register at the local court of Munich under HRB 168820.
 
“ Germany Investment ” means iShares (DE) I Investmentaktiengesellschaft mit Teilgesellschaftsvermögen, a corporation organized under the Laws of Germany registered with the commercial register at the local court of Munich under HRB 176566.
 
“ Germany Services ” means BGI Deutschland Services Deutschland GmbH, a corporation organized under the Laws of Germany registered with the commercial register at the local court of Munich under HRB 164017.
 
“ Government Entity ” means any foreign or domestic, federal, state, provincial, county, city or local legislative, administrative or regulatory authority, agency, court, body or other governmental or quasi-governmental entity with competent jurisdiction, including any Self-Regulatory Organization and any such supranational body (including the European Commission and the European Court of Justice).
 
“ Group Relief ” has the meaning set forth in Section 6.5(f)(i).
 
“ Guarantee ” has the meaning set forth in Section 6.30(b).
 
Guarantee Cap ” has the meaning set forth in Section 6.30(c).
 
“ Guernsey Company ” means Barclays Global Investors Guernsey Limited, a company limited by shares organized under the Laws of the Bailiwick of Guernsey.
 
“ Half Year Financial Statements ” has the meaning set forth in Section 6.28(f).
 
“ HK Company ” means Barclays Global Investors North Asia Limited, a company limited by shares organized under the Laws of the Hong Kong Special Administrative Region of the People’s Republic of China.
 

 
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“ HSR Act ” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder.
 
“ ICTA ” has the meaning set forth in Section 4.7(s).
 
“ Identified Third Party ” has the meaning set forth in Section 6.25(a).
 
“ IFRS ” means the International Financial Reporting Standards adopted by the European Union.
 
“ Indebtedness ” means, with respect to any Person, without duplication, any of the following liabilities, whether secured (with or without limited recourse) or unsecured, contingent or otherwise:  (i) all liabilities for borrowed money; (ii) all liabilities evidenced by bonds, debentures, notes or other similar instruments or under financing or capital leases; (iii) all liabilities for guarantees of another Person in respect of liabilities of the type set forth in clauses (i) and (ii); and (iv) all liabilities for accrued but unpaid interest expense and unpaid penalties, fees, charges and prepayment premiums that are payable, in each case, with respect to any of the obligations of a type described in clauses (i) through (iii) above.  Notwithstanding anything in this Agreement to the contrary, obligations owed to insurance and reinsurance policyholders owning unit-linked insurance policies issued by Pensions Management shall not be deemed Indebtedness for any purpose under this Agreement.
 
“ Indemnified Parties ” has the meaning set forth in Section 8.3(a).
 
“ Indemnifying Party ” has the meaning set forth in Section 8.4(a).
 
“ Indirect Taxes ” means all sales, employment, VAT, property, duty, excise, stamp and similar Taxes.
 
“ Information Statement ” has the meaning set forth in Section 6.17(a).
 
“ Input Tax ” means “deductible VAT” as such term is used in the European Community VAT Directive 2006/112/EC.
 
“ Intellectual Property ” means all:  (i) trademarks, service marks, domain names, logos, trade dress, trade names, and other indicia of origin, all applications and registrations for the foregoing, and all goodwill associated therewith and symbolized thereby, including all renewals of same (collectively, “ Trademarks ”); (ii) patents, registrations and applications therefor, and divisionals, continuations, continuations-in-part, extensions and reissues relating thereto (collectively, “ Patents ”); (iii) trade secrets, confidential proprietary information, inventions and know-how (collectively, “ Trade Secrets ”); (iv) works of authorship and copyrights therein and thereto (including in software), registrations and applications therefor, and all renewals, extensions, restorations and reversions thereof (collectively, “ Copyrights ”); and (v) other intellectual property rights to the extent entitled to legal protection as such.
 

 
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“ Intercompany Payables ” means all account, note or loan payables and all advances (cash or otherwise) or any other extensions of credit that are payable by Parent or any of its Subsidiaries (other than Transferred Entities) to a Transferred Entity; provided , that Intercompany Payables shall not include any such account, note or loan payable or any advance (cash or otherwise) or any other extension of credit that (i) (A) is entered into or otherwise created in the ordinary course of business within three months prior to the Closing Date and (B) is due within three months following the Closing Date or (ii) is of an amount that is less than $1,000,000.
 
“ Intercompany Receivables ” means all account, note or loan payables and all advances (cash or otherwise) or any other extensions of credit that are receivable by Parent or any of its Subsidiaries (other than the Transferred Entities) from a Transferred Entity; provided , that Intercompany Receivables shall not include (x) any such account, note or loan payable or any advance (cash or otherwise) or any other extension of credit that (i) (A) is entered into or otherwise created in the ordinary course of business within three months prior to the Closing Date and (B) is due within three months following the Closing Date, (ii) is of an amount that is less than $1,000,000, (iii) is a Closing Intercompany Loan, or (iv) is a receivable of the type referred to in Section 2.3(d), or (y) the Japan Loan.
 
“ Intracompany Payables and Receivables ” means all account, note or loan payables, and all advances (cash or otherwise) or any other extensions of credit that are payable by a Transferred Entity to another Transferred Entity; provided that Intracompany Payables and Receivables shall not include any such account, note or loan payables or any advance (cash or otherwise) or any extension of credit made or established in the ordinary course of business, in any such case that is due within the one month following the Closing.
 
“ Investment Advisers Act ” means the United States Investment Advisers Act of 1940, as amended, and the rules and regulations promulgated thereunder.
 
“ Investment Advisory Arrangement ” means a Contract under which a Person acts as a trustee, an investment adviser or a sub-adviser to, or manages any investment or trading account of, any Client.
 
“ Investment Company Act ” means the United States Investment Company Act of 1940, as amended, and the rules and regulations promulgated thereunder.
 
“ Ireland Company ” means Barclays Global Investors Ireland Limited, a corporation organized under the Laws of Ireland.
 
“ IRS ” means the Internal Revenue Service of the United States of America.
 
“ Japan Company ” means Barclays Global Investors Japan Limited, a stock company organized under the Laws of Japan.
 
“ Japan Loan ” means the loan advanced to Japan Company by Seller in the original principal amount of ¥1,500,000,000, pursuant to the Subordinated Loan Agreement,
 

 
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dated January 29, 2008, by and between Seller, acting as lender through its Tokyo Branch, and Japan Company, as borrower (the “ Japan Loan Agreement ”).
 
“ Knowledge ” or any similar phrase means (i) the actual knowledge of the Persons referenced in Annex 1.1(a) with respect to Seller and (ii) the actual knowledge of the Persons referenced in Annex 1.1(b) with respect to Buyer.
 
“ Law ” means any law, statute, ordinance, rule, regulation, code, order, ordinance, judgment, injunction, writ, decree, decision, directive, or other requirement or rule of law enacted, issued, promulgated, enforced or entered by a Government Entity, including listing rules made under Part VI of the UK Financial Services and Markets Act 2000 (as set out in the FSA Handbook).
 
“ Licensed Marks ” has the meaning set forth in Section 6.23(h).
 
“ Litigation ” means any claim, action, suit, complaint, demand, litigation, arbitration, prosecution, contest, hearing, inquiry, investigation, inquest, audit or other proceeding of any nature, civil, criminal, regulatory or otherwise, in law or in equity, pending or threatened, by or before any court, tribunal, arbitrator or other Government Entity.
 
“ Losses ” has the meaning set forth in Section 8.2(a).
 
“ Majority Stockholders ” means PNC and Merrill Lynch.
 
“ Material Adverse Effect ” means an event, circumstance, fact, change, development, condition or effect that has a material adverse effect on the business, assets, properties, results of operations or condition (financial or otherwise) of the Transferred Entities, taken as a whole; provided that none of the following (or the results thereof) shall contribute to or be a Material Adverse Effect:  (i) any change in Law or accounting standards, but only to the extent that the Transferred Entities, taken as a whole, are not materially disproportionately adversely affected compared to other asset managers and providers of investment management products and services generally; (ii) any change in economic or business conditions locally or globally generally, but only to the extent that the Transferred Entities, taken as a whole, are not materially disproportionately adversely affected compared to other asset managers and providers of investment management products and services generally; (iii) any events, conditions or trends in economic, business or financial conditions generally affecting the financial services industry, including changes in prevailing interest rates, currency exchange rates and price levels or trading volumes in the United States or foreign securities markets; (iv) any change resulting from or arising out of hurricanes, earthquakes, floods or other natural disasters; (v) any change in assets under management resulting from changes in asset valuation or market price fluctuations; (vi) the effects of the actions that are (A) expressly required by this Agreement or the MSA, (B) taken by Seller or any of the Transferred Entities with the prior written consent of Buyer or (C) not taken by Seller or any of the Transferred Entities at the written request of Buyer or due to Buyer’s refusal to provide its consent therefor; and (vii) any change, including the loss of business of any of the Transferred Entities, resulting from the announcement of (x) this
 

 
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Agreement and the transactions contemplated by this Agreement or (y) the MSA and the transactions contemplated by the MSA.
 
“ Material Leases ” has the meaning set forth in Section 4.21.
 
“ Maximum Share Amount ” has the meaning set forth in Section 2.2(b)(i)
 
“ Merrill Lynch ” means Merrill Lynch & Co., Inc., a Delaware corporation.
 
“ Mexico Company ” means Impulsora y Promotora BGI México S.A. de C.V., a Sociedad Anónima de Captial Variable organized under the Laws of Mexico.
 
“ Mexico Note ” means the Mexican Peso denominated non-interest bearing note issued by Buyer (or an Affiliate of Buyer) to Seller (or an Affiliate of Seller).
 
“ Mexico Services ” means a Person that Seller shall form, incorporate or otherwise establish, or cause to be formed, incorporated or otherwise established, prior to the Closing under applicable Laws in Mexico in accordance with Section 6.26(a).
 
“ MSA ” means the Master Sale Agreement, dated as of April 9, 2009, by and among Seller (solely for the purpose of Section 9.16 of the MSA), UK Holdings and Blue Sparkle, L.P., as amended.
 
“ Negative Consent Notice ” has the meaning set forth in Section 6.10.
 
“ Net Assets ” means, with respect to a Fund, the sum of the assets of such Fund minus its liabilities.
 
“ Net Working Capital ” means, with respect to each Transferred Entity on an unconsolidated basis, as of immediately prior to the Closing, the amount equal to its (i) current assets (excluding Taxes other than Indirect Taxes), including cash and liquid investments (other than as set forth below), fee and other trade receivables as recorded on the applicable balance sheet (other than assets related to such receivables that are more than 180 days past due as of the Closing to the extent a reserve has not been taken therefor), accruals and prepayments to the extent the benefit is expected to be received within 12 months, minus (ii) current liabilities (excluding Taxes other than Indirect Taxes), minus (iii) any Indebtedness; provided, however, that the calculation of “Net Working Capital” shall not include (A) those assets and liabilities included in the calculation of the Closing Actual Capital or the Closing Actual Cash except to the extent that such assets would cause it to have Closing Actual Capital in excess of its Closing Regulatory Capital Requirement and/or Closing Actual Cash in excess of its Closing Regulatory Cash Requirement as of the time of measurement, (B) Refund Intercompany Loans (including any refunds and overpayments underlying such Refund Intercompany Loans as provided in Section 2.3(d)) and (C) the Japan Loan.  Notwithstanding anything to the contrary contained herein, neither (x) the assets used to fund any liabilities arising under or related to any Accrued Compensation Liabilities nor (y) any liabilities arising under or related to any Accrued Compensation Liabilities shall be taken into account in calculating “Net Working Capital”.
 

 
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“ New Advisory Contract ” means, if required under applicable Law or the terms of the Investment Advisory Arrangement applicable thereto, with respect to a Fund or an Advisory Client, a new investment advisory, investment management, trust or similar agreement with the Fund or the Advisory Client to be entered into as a result of the transactions contemplated by this Agreement pursuant to the Assignment Requirements.  For a Fund registered under the Investment Company Act, the term “New Advisory Contract” means a New Advisory Contract (either advisory or sub-advisory) approved in accordance with the requirements of Section 15 of the Investment Company Act excluding any “interim” new advisory contract (either advisory or sub-advisory) approved in reliance on Rule 15a-4 under the Investment Company Act.
 
“ New Transferred Entities ” means Brazil Company, Chile Company, Chile Holdings, Delaware LLC, Delaware Holdings and Mexico Services.
 
“ New York Court ” has the meaning set forth in Section 10.9(b).
 
“ Notice ” has the meaning set forth in Section 6.9.
 
“ Notice Period ” has the meaning set forth in Section 8.4(a).
 
“ Novation Accounts ” means the bank accounts of Delaware Holdings to be transferred to Finance Limited on the Closing Date prior to the Closing, identified to Buyer in writing prior to the Closing Date, pursuant to novation agreements in form reasonably acceptable to Buyer.
 
“ NYSE ” means the New York Stock Exchange.
 
“ Organizational Documents ” means, with respect to any Person that is a corporation, its articles or certificate of incorporation or memorandum and articles of association, as the case may be, and bylaws; with respect to any Person that is a partnership, its certificate of partnership and partnership agreement; with respect to any Person that is a limited liability company, its certificate of formation and limited liability company or operating agreement; with respect to any Person that is a trust or other entity, its declaration or agreement of trust or other constituent document; and with respect to any other Person, its comparable organizational documents, in each case, as has been amended or restated.
 
“ Paid Accrued Compensation Liabilities ” has the meaning set forth in Section 6.12(h).
 
“ Parent ” has the meaning set forth in the Preamble.
 
“ Parent Group ” means Parent and its direct and indirect Subsidiaries, excluding the Transferred Entities.
 
“ Parent Ordinary Shares ” has the meaning set forth in Section 3.3.
 

 
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“ Parent Public Report ” means the Annual Report on Form 20-F filed by Parent on March 24, 2009 with the SEC.
 
“ Parent Requisite Vote ” has the meaning set forth in Section 3.3.
 
“ Parent Shareholders Meeting ” has the meaning set forth in Section 6.16(b).
 
“ Patents ” has the meaning set forth in the “Intellectual Property” definition.
 
“ Pension Management ” means Barclays Global Investors Pensions Management Limited, a corporation incorporated under the Laws of England and Wales.
 
“ Permits ” means all licenses, franchises, permits, certificates, registrations, orders, concessions, declarations, and other authorizations and approvals that are issued by or obtained from any Government Entity.
 
“ Permitted Encumbrances ” means:  (i) Encumbrances specifically reflected or reserved against or otherwise specifically disclosed in the Unaudited Financial Statements; (ii) mechanics’, materialmen’s, warehousemen’s, carriers’, workers’, or repairmen’s liens or other similar common law or statutory Encumbrances arising or incurred in the ordinary course of business that are not, in the aggregate, material to the Transferred Entities, taken as a whole; (iii) statutory liens for Taxes, assessments and other governmental charges not yet due and payable or being contested in good faith by appropriate proceedings and for which adequate reserves have been established on the financial statements of the relevant Transferred Entity in accordance with GAAP, IFRS, or other applicable accounting principles; and (iv) other Encumbrances incurred in the ordinary course of business since the date of the Unaudited Financial Statements that are not, in the aggregate, material to the Transferred Entities, taken as a whole.
 
“ Person ” means an individual, a corporation, a partnership, an association, a limited liability company, a Government Entity, a trust or any other entity, body or organization.
 
“ PNC ” means The PNC Financial Services Group, Inc., a Pennsylvania corporation.
 
“ Pre-Closing Client Report ” has the meaning set forth in Section 6.23(h).
 
“ Proposed Allocation ” has the meaning set forth in Section 6.5(g)(ii).
 
“ Prospectus ” has the meaning set forth in Section 4.17(e).
 
“ Providing Party ” has the meaning set forth in Section 6.1(a).
 
“ PTE 84-14 ” has the meaning set forth in Section 4.16(d).
 
“ Publications ” has the meaning set forth in Section 6.23(h).
 

 
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“ Purchase ” has the meaning set forth in Section 2.1(e).
 
“ Purchase Price ” means (i) the Cash Purchase Price and (ii) the Equity Consideration.
 
“ Original Agreement ” has the meaning set forth in the Preamble.
 
“ Quellos Agreement ” means the Asset Purchase Agreement, dated June 26, 2007, by and among BAA Holdings, LLC, Quellos Holdings, LLC and Buyer.
 
“ QPAM ” has the meaning set forth in Section 4.16(d).
 
“ Recurring Errors ” has the meaning set forth in Section 8.2(c).
 
“ Reference Price ” means $163.74, as the same may be adjusted pursuant to Section 2.8.
 
“ Refund Intercompany Loan ” has the meaning set forth in Section 2.3(d).
 
“ Refund Payment ” means any payment (including, without limitation, interest) made by a VAT Authority, whether by way of refund, credit or repayment or otherwise, in respect of, arising out of or resulting from, or otherwise in connection with, an amount of, or purporting to be, VAT having been accounted for to a VAT Authority on a Relevant Supply.
 
“ Registered ” means issued by, registered with, renewed by or the subject of a pending application before any Government Entity or domain name registrar.
 
“ Registration Rights Agreement ” means the Registration Rights Agreement between Buyer and Seller to be entered into in connection with the transactions contemplated by this Agreement.
 
“ Regulated Entities ” means Australia Company, Canada Company, Canada Services, Germany Company, Guernsey Company, HK Company, Ireland Company, Japan Company, Pension Management, Singapore Company, US Bank, UK Company, US Global Investors Fund Distribution Company and US Global Investors Services.
 
“ Regulated Entity Group ” means with respect to each Regulated Entity, such Regulated Entity together with its Subsidiaries.
 
“ Regulatory Requirement ” means any Law to the extent it regulates the business, products, services, operation, financial condition, ownership, supervision or regulation of brokers, dealers, commodity pool operators, commodity trading advisors, investment companies, banks, investment advisers, trust companies, insurance companies or agencies or securities lending agents or Persons engaged in any such business, but not to the extent that it regulates other types of businesses or Persons, in a manner unrelated to the regulated activities described above.
 

 
24
 

“ Relevant Documentation ” means the following documents of the Parent Group or any Transferred Entity created prior to the Closing Date:  (a) any documents which refer to or relate to the Parent Group’s or the Transferred Entities’ compliance with OFAC or other government sanctions; and (b) all customer documentation (including, for the avoidance of doubt but not limited to, customer payment records and instructions in any currency, customer cheques (in whichever format they are retained), customer payment transaction records, customer anti money laundering files (where such files exist), any customer files or folders, KYC/KYB documentation, customer ledgers or statements and all SWIFT messages), and for the purposes of this definition references to documents and documentation shall include all types of electronic and printed communications, including encompassing memoranda, letters, reports, presentations, spreadsheets, overheads, charts, cheques, ledgers, calendars, presentations, invoices, minutes, video tapes, audio tapes, compact discs, e-mails and floppy discs.
 
“ Relevant Supply ” means any supply made (or which would, had the relevant Transferred Entity been registered for VAT otherwise than as part of a VAT Group, have been treated as made) by a Transferred Entity for VAT purposes on or prior to the Closing Date to a Person which was not, at the time the supply was made, treated by the Transferred Entity or any Affiliate of Seller or Parent (acting in accordance with the guidance and practice at that time of, or the interpretation of Law then applied by, the relevant VAT Authority) as a “special investment fund” within the meaning of Article 13B(d)(6) of the Sixth Council Directive 77/388/EEC of 17 May 1977 (as amended and recast by the European Community VAT Directive 2006/112/EC) but which, as a consequence of any judicial ruling or other judicial determination by any relevant Government Entity on the interpretation of “special investment fund” for the purposes of the said Article 13B(d)(6), should have been treated by the Transferred Entity or such Affiliate of Seller or Parent as a “special investment fund”.
 
“ Relief ” means any loss, relief, allowance, exemption, set off, deduction, right to repayment or credit or other relief of a similar nature granted by or available in relation to Tax pursuant to any legislation or otherwise.
 
“ Remaining Contingent Accounts ” has the meaning set forth in Section 2.3(c).
 
“ Remaining Unregulated Entities ” means the Unregulated Entities other than any Persons that are included in a Regulated Entity Group.
 
“ Reports ” has the meaning set forth in Section 4.17(e).
 
“ Representatives ” means, with respect to any Person, its directors, officers, employees, investment bankers, attorneys, accountants, advisors and other representatives.
 
“ Required Regulatory Capital ” means, with respect to each Regulated Entity, the amount of regulatory capital required under applicable Law or agreement with any applicable Government Entity to be maintained by such Regulated Entity immediately prior to the Closing.
 
“ Required Regulatory Cash ” means, with respect to each of the Regulated Entities, the amount of cash and liquid investments required under applicable Law or agreement
 

 
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with any applicable Government Entity to be maintained by such Regulated Entity immediately prior to the Closing.
 
“ Resolution Period ” has the meaning set forth in Section 2.3(a)(iii).
 
“ Resolutions ” has the meaning set forth in Section 6.16(b).
 
“ Resolved Items ” has the meaning set forth in Section 2.3(a)(iii).
 
“ Restructuring ” has the meaning set forth in Section 6.26(d).
 
“ Revenue Run Rate ” means, as of any specified date, the aggregate amount, without duplication, of all investment management fees for each investment management account (or for ETFs, the unitary fee rate or the total expense ratio or the contractual fee rate, as applicable) of each applicable Client of the Transferred Entities payable to the Transferred Entities pursuant to the relevant Investment Advisory Arrangement, determined by multiplying the Adjusted Assets Under Management for each such account at such date by the applicable annual fee rate for all such fees for such account in effect on such date (or for ETFs, the unitary fee rate or the total expense ratio or the contractual fee rate, as applicable) (or, in the case of the Closing Adjustment Revenue Run Rate and Closing ETF Adjustment Revenue Run Rate, as will be in effect as of immediately following the Closing Date or such later date within six months after the Closing Date on which a revised fee rate will take effect).  The calculation of the Revenue Run Rate shall (a) exclude from revenue any performance-based, incentive or similar fees, securities lending fees, transition revenues and fees generated in respect of Fund Limited or the iPath business and (b) include only net revenues to the Transferred Entities after giving effect to, and taking into account, any fee or expense waiver, rebate or cap, reimbursement obligation or similar offset, distribution or sales charge or fee (including any mutual fund supermarket fee) or any revenue sharing arrangement (including any such amount deducted directly by or on behalf of a Client from the fee otherwise payable by such Client to a Transferred Entity under the applicable Investment Advisory Arrangement).
 
“ Revenue Run Rate Adjustment Amount ” means the product of (i) 4.25, multiplied by (ii) the excess, if any, of (x) the product of (1) 0.9 multiplied by (2) the Base Revenue Run Rate over (y) the Closing Adjustment Revenue Run Rate.  For purposes of calculating the Revenue Run Rate Adjustment Amount in respect of the Closing, the revenue corresponding to Base Revenue Run Rate for all Contingent Accounts shall be excluded from the calculation.  Notwithstanding anything in this Agreement to the contrary, in the event that the Revenue Run Rate Adjustment Amount exceeds $1.4 billion, the Revenue Run Rate Adjustment shall be deemed to be $1.4 billion.
 
“ Rules ” has the meaning set forth in Section 8.13(a).
 
“ SEC ” means the United States Securities and Exchange Commission.
 
“ Securities Act ” means the United States Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
 

 
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“ Securities Lending Client ” has the meaning set forth in Section 6.30(b).
 
“ Self-Regulatory Organization ” means (i) any “self-regulatory organization” as defined in Section 3(a)(26) of the Exchange Act, (ii) any other US or foreign securities exchange, futures exchange, commodities exchange or contract market and (iii) any other exchange or corporation or similar self-regulatory body or organization.
 
“ Seller ” has the meaning set forth in the Preamble.
 
“ Seller Indemnified Party ” has the meaning set forth in Section 8.3(a).
 
“ Seller Limit ” has the meaning set forth in Section 8.2(b).
 
“ Seller Regulatory Impediments ” means (i) conditions, limitations, restrictions or requirements, including any sales, divestitures, hold separates or other disposals, imposed upon Seller or any of its Affiliates in connection with obtaining or failing to obtain the approval of any Government Entity to the transactions contemplated hereby, or (ii) prohibitions under any applicable Law that would, in each case of (i) and(ii), individually or in the aggregate, reasonably be expected to be materially adverse to Seller in comparison to the benefits that Seller expects to obtain from the transactions contemplated hereby.
 
“ Seller Threshold ” has the meaning set forth in Section 8.2(b).
 
“ Seller’s Disclosure Schedules ” means the disclosure schedules delivered by Seller to Buyer immediately prior to the execution of this Agreement.
 
“ Seller’s i-Marks ” has the meaning set forth in Section 6.23(d).
 
“ Seller’s Names and Marks ” has the meaning set forth in Section 6.23(a).
 
“ Seller’s Portion ” has the meaning set forth in Section 6.5(f)(x).
 
“ Seller’s Required Approvals ” has the meaning set forth in Section 3.5.
 
“ Service Level Agreement ” means the Service Level Agreement in the form attached hereto as Exhibit J.
 
“ Share Issuance ” means the issuance of the Buyer Series B Preferred Stock in accordance with the terms of the Buyer Series D Preferred Stock issued in connection with and pursuant to the terms of this Agreement.
 
“ Significant Contract ” has the meaning set forth in Section 4.13(b).
 
“ Significant Subsidiary ” is as defined in Rule 1.02(w) of Regulation S-X promulgated pursuant to the Exchange Act.
 

 
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“ Singapore Company ” means Barclays Global Investors Southeast Asia Limited, a public company limited by shares organized under the Laws of Singapore.
 
“ Singapore Services ” means Barclays Global Investors Southeast Asia Services Pte. Ltd, a public limited company organized under the Laws of Singapore.
 
“ Specified Contracts ” has the meaning set forth in Section 4.13(a).
 
“ Specified Controlled Affiliate ” means, with respect to any Person, a Subsidiary of such Person and any Affiliate of such Person whose Competing Activities may be restricted by one or more members of the Parent Group.
 
“ Stockholder Agreement ” means the Stockholder Agreement in the form attached hereto as Exhibit A.
 
“ Stub Period ” has the meaning set forth in Annex 6.5.
 
“ Stub Period Adjustment ” means the amount, whether positive or negative, resulting from the combination of (a) the amount of additions, contributions and reinvestments (or notices thereof) to accounts (other than ETFs) starting on the date immediately after the relevant Closing Measurement Valuation Date therefor and ending on and including the Closing Measurement Date that would have been included in the determination pursuant to clauses (b)(i), (b)(ii) and (b)(iii) of the definition of Adjusted Assets Under Management (taking into account the clauses under the second proviso at the end of such definition) if the relevant Closing Measurement Valuation Date therefor were the Closing Measurement Date and (b) the amount of terminations, withdrawals, redemptions and repurchases (or notices thereof) from accounts (other than ETFs) starting on the date immediately after the relevant Closing Measurement Valuation Date and ending on and including the Closing Measurement Date that would have been included in the determination pursuant to clauses (b)(iv) and (b)(v) of the definition of Adjusted Assets Under Management (taking into account the clauses under the second proviso at the end of such definition) if the relevant Closing Measurement Valuation Date therefor were the Closing Measurement Date.  For purposes of the foregoing calculation, the amounts in items (a) and (b) shall be determined by major asset class (such as index equity, active equity, index fixed income, active fixed income, client solutions, GMSG, cash and other) as determined by the Transferred Entities as of the date of this Agreement and multiplied within each such class by the weighted average base fee rates applicable to such class as of the Closing Measurement Valuation Date therefor.
 
“ Subsidiary ” means, with respect to any Person, as of the date of determination, any other Person of which at least a majority of the securities or ownership interests having by their terms ordinary voting power to elect a majority of the board of directors or other persons performing similar functions (including general partners or managing members) is directly or indirectly owned or controlled by such Person and/or by one or more of its Subsidiaries.  Notwithstanding anything in this Agreement, in no event shall any Fund of any Person be considered to be a Subsidiary of such Person.
 

 
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“ Switzerland Company ” means Barclays Global Investors (Schweiz) AG, a corporation organized under the Laws of Switzerland.
 
“ Tax Extraction Costs ” means with, respect to a payment pursuant to a Buyer's Purchase Price Adjustment or a Closing Intercompany Loan, the reduction in the amount of such payment by reason of (i) any applicable withholding Tax on such payment, (ii) any applicable withholding Tax that would be imposed on the transfer, distribution or remittance of such payment (A) solely with respect to any Buyer's Purchase Price Adjustment, to Buyer from the relevant Transferred Entity with respect to which the Buyer's Purchase Price Adjustment is made or (B) solely with respect to any payment on a Closing Intercompany Loan, to the obligor of such Closing Intercompany Loan from the relevant Transferred Entity from which the funds attributable to payment in respect of such Closing Intercompany Loan are received, and (iii) the aggregate liability for Taxes (other than withholding Taxes) in respect of the receipt, transfer, distribution or remittance of amounts attributable to such payment, in each case calculated as if the payments were made by the relevant Transferred Entity to Buyer or, in the case of a payment in respect of a Closing Intercompany Loan, to Seller (or the Subsidiary to which the note in respect of such Closing Intercompany Loan was distributed under Section 6.26(e)(ii)), in each case via distributions through intermediate entities, if necessary, immediately after Closing and, in the case of a payment attributable to collection of an Unpaid Receivable, by treating the recipient of the proceeds from collection of such Unpaid Receivable as the relevant Transferred Entity; provided that, on a payment by payment basis, such amount shall not exceed 50% of any such payments due from a Foreign Transferred Entity and shall not exceed 10% of any such payments due from a Transferred Entity that is not a Foreign Transferred Entity.
 
“ Tax Indemnity Payments ” has the meaning set forth in Section 6.5(a)(viii).
 
“ Tax Losses ” has the meaning set forth in Section 6.5(f)(iii).
 
“ Tax Returns ” means all reports, returns, information returns, elections, agreements, declarations, or other documents of any nature or kind (including any attached schedules, supplements and additional or supporting material) filed or required to be filed with respect to Taxes, including any claim for refund, amended return or declaration of estimated Taxes (and including any amendments with respect thereto).
 
“ Taxes ” means (i) all federal, state or local and all provincial or foreign taxes, including income, gross receipts, capital gains, non-resident withholding tax, windfall profits, VAT, severance, property, social security, national insurance contributions, production, sales, use, duty, license, excise, franchise, employment, withholding, rent or similar taxes, levies, charges, surcharges or imposts together with any interest, fines, additions or penalties with respect thereto, and any interest in respect of such fines, additions or penalties, whether disputed or not, and (ii) any transferee or other secondary or non-primary liability or other obligation with respect to any item in clause (i) above, whether such liability or obligation arises by assumption, operation of law, Contract, indemnity, guarantee, as a successor or otherwise.
 
“ Termination Date ” has the meaning set forth in Section 9.1(b).
 

 
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“ Termination Fee ” has the meaning set forth in Section 9.3(a).
 
“ Third Party Claim ” has the meaning set forth in Section 8.4(a).
 
“ Third Party Claim Notice ” has the meaning set forth in Section 8.4(a).
 
“ Total Adjustment Amount Shares ” means that number of shares of Buyer Series D Preferred Stock (and if such number would exceed the Buyer Series D Preferred Stock Consideration such additional number of Buyer Series B Preferred Stock) equal to the quotient obtained by dividing (i) the Revenue Run Rate Adjustment Amount by (ii) the Reference Price.
 
“ Total Share Amount ” means an aggregate number of shares of Buyer Common Stock, Buyer Series B Preferred Stock and Buyer Series D Preferred Stock equal to 37,784,000, subject to adjustment pursuant to Section 2.8.
 
“ Trade Secrets ” has the meaning set forth in the “Intellectual Property” definition.
 
“ Trademarks ” has the meaning set forth in the “Intellectual Property” definition.
 
“ Transfer of Undertakings ” means the United Kingdom’s Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006 No. 246).
 
“ Transfer Taxes ” has the meaning set forth in Section 6.5(e)(i).
 
“ Transferred Employee ” has the meaning set forth in Section 4.12(b).
 
“ Transferred Entities ” means UK Company, Ireland Company, Pension Management, Guernsey Company, Germany Holdings, Germany Company, Germany Investment, Germany Services, UK Services, Switzerland Company, HK Company, Japan Company, Singapore Company, Singapore Services, Australia Company, Australia Holdings, Australia Services, Canada Company, Canada Holdings, Canada Services, Mexico Company, California Corporation, US International, US Global Investors Fund Distribution Company, US Growth Partners, US Bank, US Global Investors Services, US Fund Advisors, US Company, Brazil Company, Chile Company, Chile Holdings, Mexico Services, Delaware Holdings, Delaware LLC and UK Trust Manager and any other entity created in connection with any transaction undertaken pursuant to Section 6.26 in which equity interests are directly or indirectly transferred to Buyer in connection with the transactions contemplated by this Agreement.
 
“ Transferred Entities’ Required Approvals ” has the meaning set forth in Section 4.3.
 
“ Transferred Equity Interests ” means all of the issued and outstanding equity interests in the Transferred Entities.
 
“ Transition Period ” has the meaning set forth in Section 6.12(a).
 

 
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“ Transition Services Agreement ” means the transition services agreement between Buyer and Seller and certain of their Affiliates, that the parties intend to enter into prior to the Closing Date, pursuant to Section 6.13.
 
“ True-Up Period ” has the meaning set forth in Section 2.3(c).
 
“ UK Company ” means Barclays Global Investors Limited, a company incorporated under the Laws of England and Wales.
 
“ UK Entity ” means UK Company, Pension Management, UK Services, UK Trust Manager and each other Transferred Entity which is (a) incorporated in any jurisdiction within the United Kingdom, (b) resident for any Tax purpose in the United Kingdom or (c) trading in the United Kingdom through a permanent establishment in the United Kingdom.
 
“ UK Fund ” has the meaning set forth in Section 4.17(k).
 
“ UK Holdings ” means Barclays Global Investors UK Holdings Limited, a company incorporated under the Laws of England and Wales.
 
“ UK Holdings Directly Transferred Entities ” means UK Company, UK Trust Manager, Ireland Company, Pension Management, Guernsey Company, Germany Holdings, UK Services, Switzerland Company, HK Company, Singapore Company, Singapore Services, Japan Company, Australia Company, Australia Holdings and Canada Holdings.
 
“ UK Holdings Directly Transferred Equity Interests ” means all of the issued and outstanding equity interests in the UK Holdings Directly Transferred Entities.
 
“ UK Services ” means Barclays Global Investors Services Limited, a corporation incorporated under the Laws of England and Wales.
 
“ UK Trust Manager ” means Barclays Global Investors Unit Trust Manager Limited, a company incorporated under the Laws of England and Wales.
 
“ UKLA ” has the meaning set forth in Section 6.16(a).
 
“ Unaudited Balance Sheet ” has the meaning set forth in Section 4.5(a).
 
“ Unaudited Financial Statements ” has the meaning set forth in Section 4.5(a).
 
“ Unaudited Operating Expense Amount ” means the operating expenses figure for the year-ended December 31, 2008, contained in the unaudited combined statement of income for the Transferred Entities, which is set forth on Section 4.5 of the Seller’s Disclosure Schedule.
 
“ Unpaid Receivables ” has the meaning set forth in Section 2.3(a)(vi).
 
“ Unregulated Entities ” means the Transferred Entities that are not Regulated Entities.
 

 
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“ Unresolved Items ” has the meaning set forth in Section 2.3(a)(iii).
 
“ US Bank ” means Barclays Global Investors, N.A., a bank organized as a national association under the Laws of the United States.
 
“ US Bank Group ” has the meaning set forth in Section 6.5(a)(i).
 
“ U.S. Benefit and Compensation Arrangements ” shall mean Benefit and Compensation Arrangements governed by the Laws of the United States and maintained in the United States primarily for the benefit of the Employees residing or working in the United States.
 
“ US Company ” means Barclays Global Investors USA Inc., a corporation organized under the Laws of the State of California.
 
“ US Fund ” means a Fund organized under the Laws of any state of the United States.
 
“ US Fund Advisors ” means Barclays Global Fund Advisors, a corporation organized under the Laws of the State of California.
 
“ US Global Investors Fund Distribution Company ” means Barclays Global Investors Fund Distribution Company, a corporation organized under the Laws of the State of California.
 
“ US Global Investors Services ” means Barclays Global Investors Services, a corporation organized under the Laws of the State of California.
 
“ US Growth Partners ” means Barclays Global Investors Growth Partners, Inc., a corporation organized under the Laws of the State of Delaware.
 
“ US International ” means Barclays Global Investors International Inc., a corporation organized under the Laws of the State of Delaware.
 
“ VAT ” means any value added tax, consumption tax and goods and services tax and includes any other Tax of a similar nature imposed (instead of or in addition to such tax) from time to time, together with any interest and penalties thereon.
 
“ VAT Authority ” in relation to any jurisdiction, means any governmental, local, state, federal, fiscal, revenue, customs, excise or other authority, body, agency or official whatsoever responsible for the management, administration and collection of VAT in that jurisdiction.
 
“ VAT Group ” has the meaning set forth in Section 6.5(h)(ii).
 
“ VAT Indemnity Payments ” has the meaning set forth in Section 6.5(a)(ix).
 

 
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“ Willful Breach ” means an action or failure to act by one of the parties to this Agreement that constitutes a material breach of this Agreement, and such action was taken or such failure occurred with such party’s knowledge or intention that such action or failure to act would constitute a material breach of this Agreement.
 
“ Withheld Amount ” has the meaning set forth in Section 2.9(a).
 
“ Written Consents ” means the written consents of the Majority Stockholders, executed in their capacity as the holders of shares of Buyer Common Stock that in the aggregate represent not less than a majority of the total voting power of the capital stock of Buyer and delivered to Buyer concurrently with the execution of this Agreement, to irrevocably approve of the Share Issuance.
 
“ Written Plan ” has the meaning set forth in Section 4.17(e).
 
Section 1.2              Other Terms .  Other terms may be defined elsewhere in the text of this Agreement and, unless otherwise indicated, shall have such meaning throughout this Agreement.
 
Section 1.3              Other Definitional Provisions .  Unless the express context otherwise requires:
 
(a)            the words “hereof”, “herein”, and “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement;
 
(b)            the terms defined in the singular have a comparable meaning when used in the plural and vice versa;
 
(c)            the terms “ Dollars ” and “ $ ” mean United States Dollars;
 
(d)            references in this Agreement to a specific Section, Clause or Annex shall refer, respectively, to Sections, Clauses or Annexes of this Agreement;
 
(e)            wherever the word “include,” “includes,” or “including” is used in this Agreement, it shall be deemed to be followed by the words “without limitation”;
 
(f)            the phrase “date hereof” or “date of this Agreement” shall be deemed to refer to June 16, 2009;
 
(g)            references in this Agreement to either gender includes the other gender; and
 
(h)            wherever the words "immediately prior to Closing" are used in this Agreement in connection with financial statements or calculations, it shall be deemed that such financial statements or calculations will be prepared or calculated as of 11:59 P.M. on the day immediately prior to the Closing Date and that such financial statements or calculations shall take into account any and all intracompany transactions and intercompany transactions between
 

 
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Seller or any of its affiliates and any of the Transferred Entities or between any of the Transferred Entities consummated prior to Closing.
 
ARTICLE II
 
PURCHASE AND SALE OF THE TRANSFERRED EQUITY INTERESTS
 
Section 2.1              Purchase and Sale .  Upon the terms and subject to the conditions set forth in this Agreement, at the Closing, in respect of clauses (a), (b), (c) and (d) below, Seller and Buyer agree that the following transactions shall occur in the specified order:
 
(a)            Seller shall, or shall cause UK Holdings to, sell and transfer (A) the UK Holdings Directly Transferred Equity Interests and (B) the Japan Loan Agreement, and Buyer shall purchase and receive (x) the UK Holdings Directly Transferred Equity Interests and (y) the Japan Loan Agreement from Seller or UK Holdings, free and clear of any Encumbrances (it being understood and agreed that, upon the completion of such sale and transfer, Buyer shall become the indirect beneficial owner of all of the issued and outstanding equity interests in Germany Company, Germany Investment, Germany Services, Australia Services, Canada Company and Canada Services, free and clear of any Encumbrances).
 
(b)            Seller shall, or shall cause Finance Limited to, sell and transfer all of the issued and outstanding equity interests in Delaware Holdings to Buyer, and Buyer shall purchase and receive all of the issued and outstanding equity interests in Delaware Holdings from Seller or Finance Limited, free and clear of any Encumbrances (it being understood and agreed that, upon the completion of such sale and transfer, Buyer shall become the indirect beneficial owner of all of the issued and outstanding equity securities in California Corporation, Delaware LLC, US International, US Global Investors Fund Distribution Company, US Growth Partners, US Bank, US Global Investors Services, US Fund Advisors and US Company, free and clear of any Encumbrances).
 
(c)            Seller shall, or shall cause Finance Limited and UK Holdings to, sell and transfer all of the issued and outstanding equity interests in Mexico Company, Mexico Services, Brazil Company and Chile Holdings to Buyer, and Buyer shall purchase and receive all of the issued and outstanding equity interests in Mexico Company, Mexico Services, Brazil Company and Chile Holdings from Seller or Finance Limited and UK Holdings, free and clear of any Encumbrances (it being understood and agreed that, upon the completion of such sale and transfer, Buyer shall become the indirect beneficial owner of all of the issued and outstanding equity securities in Chile Company, free and clear of any Encumbrances). In addition, at the Closing, immediately after issuance of the Mexico Note pursuant to Section 2.2, an Affiliate of Buyer (which Affiliate shall be identified in writing by Buyer prior to Closing) shall purchase from Finance Limited the Mexico Note for its stated principal amount in an amount of U.S. Dollars as determined in the manner provided in the exclusion in clause (i) of the definition of “Cash Purchase Price.”
 

 
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(d)            Seller shall cause to be transferred to or at the direction of Buyer such nominee shares in any of the Transferred Entities held by Seller or any of its Affiliates (all of the transactions described in this Section 2.1, the “ Purchase ”).
 
Section 2.2              Purchase Price .
 
(a)            Upon the terms and subject to the conditions of this Agreement, at the Closing, in consideration of the Purchase, subject to adjustment as provided in this Agreement, Buyer (or its designee (or designees)) shall (i) pay Seller (or any Affiliates of Seller designated by Seller in writing) (A) the Cash Purchase Price and (B) in consideration for the Japan Loan, an amount of U.S. Dollars equivalent to ¥1,500,000,000 or, if less, the principal amount of the Japan Loan as of immediately prior to the Closing (in Japanese Yen), determined in the manner provided in the exclusion in clause (ii) of the definition of “Cash Purchase Price,” by wire transfers of immediately available U.S. Dollar funds to one or more accounts to be designated in writing by Seller to Buyer not less than ten (10) Business Days prior to the Closing Date, and (ii) issue to Seller (or any Affiliates of Seller designated by Seller in writing) the Equity Consideration and the Mexico Note, in each case of (i) and (ii), as among Seller, UK Holdings and Finance Limited (or such other Affiliates of Seller as Seller may designate in writing); it being understood that (x) as agreed by Buyer and Seller pursuant to Section 6.5(g), the Cash Purchase Price and the Mexico Note shall be allocated pursuant to the Allocation and to Section 6.5(g) of the Seller’s Disclosure Schedules (allocating the Mexico Note entirely to Mexico Company).
 
(b)            Notwithstanding anything in this Agreement to the contrary:
 
    (i)           If the issuance to Seller or its designees of the Total Share Amount pursuant to Section 2.2(a) would cause Parent to own, directly or indirectly, shares of Buyer Common Stock and Buyer Preferred Stock representing more than 19.9% of the sum of (A) the total number of shares of Buyer Common Stock and Buyer Preferred Stock issued and outstanding immediately prior to the Closing or contemporaneously with the Closing (other than the Total Share Amount) (taking into account the adjustments provided for in clause (v) below) and (B) the Total Share Amount, then the aggregate number of shares of Buyer Common Stock and Buyer Preferred Stock to be issued to Seller or its designees at the Closing shall be reduced so that the number of shares of Buyer Common Stock and Buyer Preferred Stock so owned by Parent will be equal to 19.9% of the total number of shares of Buyer Common Stock and Buyer Preferred Stock issued and outstanding immediately following the Closing (taking into the adjustments provided for in clause (v) below) (the “ Maximum Share Amount ,” and the difference between the Total Share Amount and the Maximum Share Amount, the “ Deficit Shares ”) .  If the Total Share Amount is required to be reduced pursuant to the first sentence of this Section 2.2(b)(i), such reduction shall be applied first by reducing Buyer Preferred Stock otherwise issuable.
 
    (ii)          If the number of shares of Buyer Preferred Stock Consideration is reduced solely pursuant to the application of clause (v) below, then Buyer shall deliver to Seller, in lieu of the Deficit Shares, additional cash in an amount equal to the product of the number of Deficit Shares and the Reference Price.
 

 
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    (iii)         If the Total Share Amount is reduced pursuant to clause (i) above for any reason other than the application of clause (v) below, then, at the Closing, Buyer shall pay an additional amount in cash equal to the product of the number of Deficit Shares and the greater of the closing price of the Buyer Common Stock on the NYSE on the third trading day immediately preceding the Closing and $173.17, subject to adjustment in accordance with Section 2.8 (such greater amount, the “ Deficit Price ”).
 
    (iv)         If, following the Closing, Buyer shall issue any shares of capital stock, in addition to any rights Seller and its Affiliates may otherwise have, Seller shall have the right, subject to the limitations imposed by the Stockholder Agreement, to acquire shares of Buyer Preferred Stock and, if the Deficit Shares included Buyer Common Stock, Buyer Common Stock in an amount not in excess of the Deficit Shares.  If in an acquisition pursuant to the preceding sentence Seller shall be unable to acquire all of the Deficit Shares, it shall continue to have its rights under this clause (iv) until such time as it has acquired a number of shares of Buyer Common Stock and Buyer Preferred Stock pursuant to this clause (iv) in an amount equal to the Deficit Shares.  Any shares acquired under this clause (iv) shall be acquired at a price equal to the Deficit Price.
 
    (v)          For purposes of clause (i), Buyer’s issued and outstanding stock shall not include shares of stock subject to a substantial risk of forfeiture (within the meaning of Section 83 of the Code and the Treasury Regulations thereunder) or shares of issued and outstanding stock subject to forfeiture to Buyer pursuant to an escrow Contract; provided , that in no event shall the total number of all such shares exceed 1 million.
 
Section 2.3              Post-Closing Purchase Price Adjustment .
 
(a)             Preparation of Final Regulatory and Working Capital .
 
    (i)           As soon as practicable, but in no event later than the 60th day after the Closing, Seller shall deliver to Buyer a combined balance sheet, prepared as of 11:59 P.M. on the day immediately prior to the Closing (the “ Closing Date Financial Statements ”).  At the time of the delivery of the Closing Date Financial Statements, Seller shall also deliver to Buyer (A) calculations of the amount of Closing Actual Capital and Closing Required Regulatory Capital for each Regulated Entity, (B) calculations of the amount of Closing Actual Cash and Closing Required Regulatory Cash for each Regulated Entity, (C) calculations of the amount of Closing Net Working Capital for (i) each Regulated Entity Group on a consolidated basis for such group and (ii) the Remaining Unregulated Entities taken as a whole, and (D) a balance sheet of each Regulated Entity Group on a consolidated basis for such group and the Remaining Unregulated Entities, taken as a whole, as of immediately prior to the Closing, which balance sheet shall include a liability line item (for all of the Closing Intercompany Loans (the items referred to in clauses (A) through (D) hereof are collectively referred to herein as the “ Capital Statements ”).  The Closing Date Financial Statements shall be prepared in good faith in accordance with IFRS consistently applied and on a basis consistent with the accounting policies, practices, procedures, valuation methods and principles used in preparing the Unaudited Financial Statements in respect of the Transferred Entities; provided that in the case of those
 

 
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referred to in clauses (A) and (B) above, the applicable accounting standards shall not be IFRS, but shall instead be the applicable regulatory accounting provisions.
 
    (ii)          During the period of the preparation of the Closing Date Financial Statements and the Capital Statements, any review or any dispute as provided in this Section 2.3, Buyer and Seller shall, and shall cause each of their Affiliates (and, in the case of Buyer, the Employees), to:  (A) provide each other party and its Representatives with reasonable access during normal business hours upon reasonable advance notice to its and their relevant books, records and employees (including, in the case of Buyer, the Employees) (to the extent any of such books, records or employees relate to the Closing Date Financial Statements, the Capital Statements and the Dispute Notice) and permit copies to be made of any of the foregoing documentation and (B) cooperate fully with such other party and its Representatives as reasonably requested, including the provision on a timely basis of all information reasonably relevant for purposes of the Capital Statements.  In connection with the preparation of the Closing Date Financial Statements and the Capital Statements, Buyer will make fully available to Seller employees of Buyer who were Employees and were responsible for, had knowledge of or otherwise participated in respect of the preparation of financial statements to assist Seller in its preparation of the Closing Date Financial Statements and the Capital Statements.  Seller shall bear all costs incurred in preparing the Closing Date Financial Statements and the Capital Statements other than any costs associated with employees of Buyer and its Affiliates.
 
    (iii)         After receipt of the Capital Statements, Buyer shall have 60 days to review such statements.  Unless Buyer delivers written notice to Seller on or prior to the 60th day after Seller’s delivery of the Capital Statements stating that Buyer has objections to either or both statements, which notice sets forth, in reasonable detail disagreement therewith (such notice, the “ Dispute Notice ”), Buyer shall be deemed to have accepted and agreed to the statements.  Matters included in such Capital Statements which are not included in the Dispute Notice, shall be deemed to be accepted by Buyer (“ Resolved Items ”) and any amounts included within the Resolved Items shall be deemed to be final, binding and conclusive.  If Buyer timely delivers a Dispute Notice, Seller and Buyer shall, within 30 days (or such longer period as Seller and Buyer may agree in writing) following receipt by Seller of the Dispute Notice (each such period, a “ Resolution Period ”), attempt to resolve their differences, and any written resolution by them as to any disputed amounts shall be final, binding and conclusive.
 
    (iv)         Any amounts remaining in dispute at the conclusion of the Resolution Period (the “ Unresolved Items ”) shall be submitted by Buyer and Seller to Ernst & Young LLP or if such firm cannot or will not serve such other firm as agreed to in writing by the parties (the “ CPA Firm ”) immediately after the expiration of the Resolution Period or as soon as practicable after Buyer and Seller have engaged the CPA Firm.  Seller and Buyer shall use their commercially reasonable efforts to engage the CPA Firm as promptly as practicable.  Each party shall execute, if requested by the CPA Firm, an engagement letter with the CPA Firm containing reasonable terms and to provide the CPA Firm such work papers and other documents and information related to the Unresolved Items as the CPA Firm may reasonably request if available to such party or, in the case of Buyer, its Subsidiaries, or, in the case of Seller, its Affiliates (or their accountants or auditors).  The CPA Firm shall act as an arbitrator and not as an expert, to
 

 
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determine, based on the provisions of this Section 2.3(a), only the Unresolved Items; provided , however , that the CPA Firm shall have authority to determine, and the term “Unresolved Items” as used in this Section 2.3(a) shall mean, only the amount(s) contained in such Capital Statements and no other matter whatsoever, absent a written agreement to the contrary by Buyer and Seller; provided, further, that the determination of the Unresolved Items provided by the CPA Firm must be made in accordance with the standards and definitions in this Agreement, and must be limited to the range between and including the amounts proposed by Seller and Buyer for the resolution of the specific Unresolved Item.  Seller and Buyer shall request that the CPA Firm provide, within 30 days after the submission of the Unresolved Items to the CPA Firm, a written statement setting forth (A) its determination of the Unresolved Items and (B) to the extent Unresolved Items affect the CPA Firm’s calculation of any of (I) Closing Actual Cash or Closing Required Regulatory Cash for each Regulated Entity, (II) Closing Actual Capital or Closing Required Regulatory Capital for each Regulated Entity or (III) the Closing Net Working Capital for (i) each Regulated Entity Group on a consolidated basis for such group and (ii) the Remaining Unregulated Entities taken as a whole, as applicable, in each case based upon (aa) the amount of Resolved Items and (bb) its determination of the Unresolved Items.  Such written statement shall be delivered to Buyer and Seller and absent manifest error shall be final, binding and conclusive on and with respect to Buyer and Seller and may be entered in any court having jurisdiction.
 
    (v)          Within five Business Days following either (A) an agreement or deemed agreement by Buyer and Seller as to the Closing Net Working Capital calculations or (B) the CPA Firm’s determination of all Unresolved Items with respect to each applicable Person or Persons Net Working Capital (the Closing Net Working Capital as determined in accordance with clause (A) or (B) above, the “ Final Closing Net Working Capital ”), (I) if the Final Closing Net Working Capital with respect to a Regulated Entity Group is negative with respect to such Regulated Entity Group, Seller shall pay to Buyer either in cash in U.S. Dollars or, as directed by Buyer, through an offset in, or transfer to Buyer of the benefit of, an equal amount of a Closing Intercompany Loan issued to Seller or one of its Subsidiaries by the relevant Regulated Entity the absolute value of the Final Closing Net Working Capital with respect to such Regulated Entity Group, (II) if the Final Closing Net Working Capital with respect to the Remaining Unregulated Entities taken as a whole is negative Seller shall pay to Buyer in cash in U.S. Dollars or, as directed by Buyer, through an offset in, or transfer to Buyer of the benefit of, an equal amount of a Closing Intercompany Loan issued by the relevant Unregulated Entity (or Unregulated Entities) the absolute value of the Final Closing Net Working Capital with respect to such Unregulated Entities, (III) if the Final Closing Net Working Capital is positive with respect to a Regulated Entity Group on a consolidated basis for such group, Buyer shall pay to Seller in cash in U.S. Dollars the Final Closing Net Working Capital with respect to such Regulated Entity Group on a consolidated basis for such group and/or (IV) if the Final Closing Net Working Capital with respect to the Remaining Unregulated Entities taken as a whole is positive, Buyer shall pay to Seller in cash in U.S. Dollars the Final Closing Net Working Capital with respect to such entities.  If following the Closing any Regulated Entity has not satisfied the Closing Regulatory Capital Requirement or the Closing Regulatory Cash Requirement, then within five Business Days following the earlier of (aa) an agreement or deemed agreement by Buyer and Seller as to (x) Closing Actual Cash and Closing Required Regulatory Cash, and
 

 
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(y) Closing Actual Capital and Closing Required Regulatory Capital and (bb) the CPA Firm’s determination of all Unresolved Items, Seller shall pay Buyer the amounts of such deficit.
 
    (vi)         If  Buyer is required to make a payment of the Buyer's Purchase Price Adjustment, and there are any accounts receivable that were outstanding at the Closing (other than in respect of receivables representing Tax refunds) (such accounts receivable, “ Unpaid Receivables ”) and that have not been collected as of the time of such payment, Buyer may reduce the amount it is required to pay to Seller under clause (v) by the amount of such Unpaid Receivables and (aa) Buyer shall pay to Seller such reduced amount or portions thereof in U.S. Dollars at the earlier of (i) no later than 30 days after receipt of payments on such Unpaid Receivables, and (ii) for any amount remaining unpaid, the first anniversary of the Closing (for the avoidance of doubt, regardless of collection of any Unpaid Receivables); and (bb) to the extent there are Tax Extraction Costs in respect of payment of the Buyer's Purchase Price Adjustment, the Buyer's Purchase Price Adjustment shall be reduced by such Tax Extraction Costs.  On the date that the Final Closing Net Working Capital is determined, Buyer shall provide Seller with a written report that details the amounts of Unpaid Receivables collected (on an account-by-account basis) by Buyer as of such date, and thereafter until such time that Buyer’s obligation to pay Seller in respect of Unpaid Receivables shall have ceased or been satisfied in full, Buyer shall provide such a report not less frequently than once every three-month period for the Unpaid Receivables collected during the three-month period preceding the date of such written report.  Notwithstanding the first sentence of this Section 2.3(a)(vi), to the extent the Buyer's Purchase Price Adjustment is greater than $100,000,000, Buyer shall pay to Seller the amount of the Buyer’s Purchase Price Adjustment in excess of $100,000,000 (the “ Excess Amount ”) at such time as Buyer determines in its discretion; provided, that interest shall accrue on a daily basis with respect to any portion of the Excess Amount that remains unpaid after six months following the Closing Date at the Applicable Rate in effect from time to time for the period starting from the date that is three months after the Closing Date and ending on the date of the full payment of the Excess Amount; provided , further , that notwithstanding anything in the contrary in the foregoing, Buyer shall pay to Seller, in any event, the full amount of the Buyer's Purchase Price Adjustment by not later than the one year anniversary of the Closing.
 
    (vii)        Buyer shall, and shall cause each of its Subsidiaries to, use commercially reasonable efforts to minimize or eliminate any Tax Extraction Costs.  If Buyer proposes to make a payment net of Tax Extraction Costs, Buyer shall make the payment net of its estimate of the Tax Extraction Costs, and concurrently with making such payment, Buyer shall provide a written calculation of the Tax Extraction Costs to Seller, which shall include a schedule with reasonable detail supporting the Buyer’s calculation of the Tax Extraction Costs.  If Seller disagrees with the amount of the Tax Extraction Costs that Buyer calculated, and such dispute cannot be resolved by the parties in good faith within 30 days from the date the payment is made, the parties shall use their commercially reasonable efforts to engage the CPA Firm as promptly as practicable, in accordance with the principles set forth in Section 2.3(a)(iv).  If the CPA Firm, using the same parameters that are set forth in Section 2.3(a)(iv), concludes that the Tax Extraction Costs amount that Buyer deducted at the time the payment was made is greater than the amount that the Tax Extraction Costs should have been, Buyer shall pay the difference to Seller.  If Buyer is required to make a payment pursuant to this Section 2.3(a)(vii), such payment shall be made as
 

 
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promptly as practicable following the determination of the amount required to be paid by Buyer to Seller.
 
     (viii)       No payments shall be due under clause (v) above with respect to amounts that Seller or any of its Subsidiaries did not distribute or declare from a Transferred Entity prior to the Closing because of a limitation or prohibition arising under a Law until such time, if occurring prior to the second anniversary of the Closing, as such limitation or prohibition is no longer in effect; provided , that if such limitation or prohibition would have ceased to exist if the Closing had not occurred and Buyer or any of its Controlled Affiliates, directly or indirectly, takes any action outside the ordinary course of business (determined based on the ordinary course of business of Buyer or the applicable Controlled Affiliate prior to the Closing) that causes such limitation or prohibition to remain in effect on the day prior to the second anniversary of the Closing, such limitation or prohibition shall be deemed to no longer be in effect; provided , further that Buyer shall use commercially reasonable efforts to cause such limitation or prohibition to be inapplicable to the extent such efforts would not be reasonably expected to result in any material detriment to Buyer or any of its Significant Subsidiaries.  For the avoidance of doubt, the preceding sentence shall not limit the obligation of Buyer with respect to any payments due under clause (v) above to the extent that any limitation or prohibition arising under a Law on the distribution of cash or declaration of cash dividends from a Transferred Entity arises following the Closing as a result of any actions taken by Buyer after the Closing.
 
     (ix)        In the event Buyer and Seller submit any Unresolved Items to the CPA Firm for resolution as provided in Section 2.3(a)(iv) above, the fees and expenses of such CPA Firm will be borne pro rata by Buyer and Seller based on the amount of deviation of the determination of the Unresolved Items as set forth in the applicable Dispute Notice and the final resolution made by the CPA Firm, such allocation of fees and expenses to be included in the determination made by the CPA Firm.
 
(b)             Post-Closing Purchase Price Adjustment Payments .  Any cash payments made pursuant to Section 2.3(a) shall be made by wire transfer of immediately available U.S. Dollar funds to an account indicated by the Person to which payment is to be made.  Any payments made in respect of Section 2.3(a) (including through offset, or transfer in whole or in part, of a Closing Intercompany Loan) shall be deemed to be adjustments to the Purchase Price pursuant to Section 2.2(a) or capital contribution, as appropriate for all Tax purposes.
 
(c)             Contingent Account True-Up .  (i) If any Contingent Account exists at the Closing Measurement Date and either (x) if such Contingent Account is required by applicable Law or the terms of the Investment Advisory Arrangement applicable thereto to provide consent to the transactions contemplated hereby to enter into a New Advisory Contract or to obtain investor approval of a New Advisory Contract in order for such New Advisory Contract to remain in effect beyond the True-Up Period or become effective in order for the Transferred Entities to continue providing investment advisory services to such account after the Closing, and such Contingent Account has on the date that is 150 days following the Closing (the 150 day period, the “ True-Up Period ”), not previously granted such consent (including by way of negative
 

 
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consents), not entered into a New Advisory Contract or not obtained such investor approval, as the case may be, or (y) if such Contingent Account (other than any Contingent Account covered in clause (x) above) has terminated the applicable Existing Advisory Contract prior to the end of the True-Up Period or has provided to Buyer or one of its Affiliates (including the Transferred Entities) effective notice of termination of the applicable Existing Advisory Contract (such accounts described in clauses (x) and (y) being “ Remaining Contingent Accounts ”), then promptly following the Contingent Account Resolution (I) Seller shall, at its sole election, either (A) return to Buyer such number of shares of, at Seller’s election, the Buyer Series B Preferred Stock or the Buyer Series D Preferred Stock equal to the quotient obtained by dividing (i) the amount by which the Revenue Run Rate Adjustment Amount would have become positive or increased, if any, if any such remaining Contingent Accounts were treated as Contingent Accounts for purposes of calculating Adjusted Assets Under Management and the Revenue Run Rate Adjustment Amount in respect of the Closing by (ii) the Reference Price or (B) pay to Buyer an amount in cash equal to the amount calculated by clause (A)(i); or (II) Buyer shall issue to Seller or its designee such number of shares of the Buyer Series B Preferred Stock equal to the quotient obtained by dividing (A) the amount, if any, by which the Revenue Run Rate Adjustment Amount as determined for purposes of the Closing exceeds the Revenue Run Rate Adjustment Amount as determined following the Contingent Account Resolution by (B) the Reference Price; provided that any fractional share amount shall be paid in cash on the basis of an amount determined by reference to the Reference Price; provided further , that if such issuance were made at the Closing and would have resulted in Deficit Shares then the provisions of Section 2.2(b) shall apply to such shares; and provided further , that if the Contingent Account Resolution occurs after the termination of the Resolution Period or, if later, the date of determination of the Unresolved Items pursuant to Section 2.3(a)(iv) above, interest shall be added to the amount of any payment required by this Section 2.3(a) at the annual rate, calculated daily on the basis of a 360 day year, of 5%.  Buyer shall take all actions to ensure that any issuance of shares under this Section 2.3(c) shall be exempt under Rule 16b-3 under the Exchange Act.
 
    (ii)         Within five Business Days following the end of the True-Up Period, Buyer shall provide Seller a true and complete written list of all Remaining Contingent Accounts.  After receipt of such list, Seller shall have 10 days to review such list.  If Seller disputes any name on the list, the parties will have 15 days to agree upon the final list.  If at the end of such 15 day period, Buyer and Seller are not able to agree upon the Remaining Contingent Accounts the parties shall refer the matter to arbitration as set forth in Section 8.13 hereof.  Until the Remaining Contingent Accounts have been agreed upon or been determined by the arbitrator (the “ Contingent Account Resolution ”) no payments shall be made under this Section 2.3(c).
 
    (iii)        During any review or any dispute as provided in this Section 2.3(c), Buyer  shall, and shall cause its Affiliates and the Employees to:  (x) provide Seller and its Representatives with access during normal business hours upon reasonable advance notice to its and their relevant books, records and employees, including the Employees and (y) cooperate fully with Seller and its Representatives as reasonably requested by Seller with respect to determining the Remaining Contingent Accounts.
 

 
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(d)            Prior to the Closing, Seller shall be permitted to cause each Transferred Entity to distribute to Parent or one of its Subsidiaries a note payable by such Transferred Entity to Parent or any such Subsidiary in an amount equal to Seller’s reasonable good faith estimate of any refund that relates to a Tax that has been paid by Seller or any of its Affiliates or any overpayment of tax paid by Seller or any of its Affiliates and that, in the case of a refund, is expected to be received by such Transferred Entity after the Closing Date, or, in the case of any overpayment, is expected to provide a benefit to such Transferred Entity after the Closing Date (a “ Refund Intercompany Loan ”).  Each Refund Intercompany Loan shall be reasonably satisfactory in form and substance to Buyer, and the material terms of each Refund Intercompany Loan shall consist of the following:  (i) an obligation to make principal payments on such note no later than 30 days following the date of receipt of payment from the relevant Government Entity with respect to such refund (including any interest or other similar amounts received from the relevant Government Entity in respect of such refund); (ii) maximum amount of principal payments required in respect of such note limited to the aggregate amounts received that are described in the foregoing clause (i) at any time on or before December 31, 2011, reduced by any Tax Extraction Costs in respect of such amounts; (iii) unsecured general obligation of the issuer; (iv) non-transferable (other than to Buyer or its Affiliates as provided in Section 2.3(a)(v) or 6.26(m) or between or among Seller and its Affiliates); and (v) non-interest bearing.  Each Refund Intercompany Loan shall be accompanied by a schedule setting forth in reasonable detail information relating to the specific refunds and overpayments of Tax (including the amounts thereof) underlying such Refund Intercompany Loan.
 
Section 2.4              Closing .  The closing of the Purchase (the “ Closing ”) shall take place at the offices of Skadden Arps Slate Meagher & Flom LLP, Four Times Square, New York, New York, at 10:00 A.M., New York City time:  (i) on the first Business Day of the first calendar month that begins more than five Business Days following the satisfaction or waiver of the conditions set forth in Article VII with respect to the Closing (other than those conditions that by their terms are to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions); or (ii) at such other place, time and date as the parties to this Agreement may agree in writing.
 
Section 2.5              Deliveries by Buyer .  At the Closing, Buyer shall deliver, or cause to be delivered, to Seller or its designees the following:
 
(a)            The Cash Purchase Price, the Mexico Note and the consideration for the Japan Loan, as provided pursuant to Section 2.2;
 
(b)            The stock certificates or, if uncertificated, other evidence of ownership representing the Equity Consideration (or, if applicable, other similar documentation evidencing the Equity Consideration), registered in the name of Seller or its designee, free and clear of any Encumbrances (other than those arising under the Stockholder Agreement);
 
(c)            The cash consideration for the Mexico Note (immediately upon receipt of the equity interests in Mexico Company);
 
(d)            The certificate to be delivered pursuant to Section 7.3(c); and
 

 
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(e)            Such other documents and instruments necessary to consummate the transactions contemplated by this Agreement on the terms and subject to the conditions set forth in this Agreement, all of which, together with the documents and instruments referred to above, shall be in form and substance reasonably satisfactory to Seller.
 
Section 2.6              Deliveries by Seller .  At the Closing, Seller shall deliver, or cause to be delivered, to Buyer the following:
 
(a)            Certificates, or other documentation or evidence reasonably acceptable to Buyer, representing all of the issued and outstanding equity interests in Delaware Holdings, the UK Holdings Directly Transferred Entities, Mexico Company, Mexico Services, Brazil Company and Chile Holdings, in each case, duly registered in the name of Buyer or its designee, free and clear of any Encumbrances (other than restrictions on transfer which arise under applicable securities Laws and other than Encumbrances created in or by Buyer or any of its Affiliates), in each case accompanied by duly executed instruments of transfer, duly notarized where legally required, in such name as Buyer shall direct;
 
(b)            Certificates, or other documentation or evidence reasonably acceptable to Buyer, duly notarized where legally required, representing (x) all of the issued and outstanding equity interests in Germany Company, Germany Services, Australia Services, Canada Company and Canada Services, in each case, in the name of the applicable UK Holdings Directly Transferred Entity, and all of the issued and outstanding enterprise shares in Germany Investment, in the name of Germany Company, (y) all of the issued and outstanding equity securities in California Corporation, in the name of Delaware Holdings, all of the issued and outstanding equity securities in US International, US Global Investors Fund Distribution Company, US Growth Partners, US Bank, US Global Investors Services, US Fund Advisors and US Company, in the name of California Corporation, and all of the issued and outstanding equity securities of Delaware LLC, in the name of US International; and (z) all of the issued and outstanding equity securities in Chile Company, in the name of Chile Holdings, in the case of each of (x), (y) and (z), free and clear of any Encumbrances;
 
(c)            Immediately upon receipt of the Mexico Note by Finance Limited, the Mexico Note;
 
(d)            The certificate to be delivered pursuant to Section 7.2(c);
 
(e)            If requested in writing by Buyer not less than 20 days prior to the Closing Date, written resignations, effective as of the Closing, of such directors and/or members of the supervisory boards of each of the Transferred Entities as specified by Buyer, if any (it being understood and agreed that Buyer and Seller shall cooperate to ensure that all resignations and the replacement of directors and/or members of the supervisory boards from the Transferred Entities shall be effected in accordance with applicable Law and that Seller shall have no obligation under this Agreement to deliver to Buyer the written resignation of any director and/or members of the supervisory boards of any Transferred Entity whose resignation under the circumstances contemplated by this Agreement would violate any applicable Law);
 

 
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(f)            A receipt acknowledging payment of the Equity Consideration, the Cash Purchase Price, the consideration for the Japan Loan and the consideration for the Mexico Note by Buyer in full satisfaction of Buyer’s obligations under Section 2.1(c) and Section 2.2(a) (but subject to any further obligations contained in this Agreement);
 
(g)            Certificates on which each of Delaware Holdings, the UK Holdings Directly Transferred Entities, Mexico Company, Mexico Services, Brazil Company and Chile Holdings certifies (in the form and manner required under Section 1.1445-2(c)(3) of the Treasury Regulations) under penalties of perjury that such Person does not constitute a United States real property holding corporation (as defined in Section 897(c) of the Code and the Treasury Regulations promulgated thereunder), and such other documents as Buyer may reasonably request to mitigate any obligation relevant to the withholding or collection of Tax in respect of the Transferred Entities;
 
(h)            An assignment agreement or other agreement (in either case, reasonably acceptable to Buyer) transferring all rights of Seller under the Japan Loan to Buyer; and
 
(i)            Such other documents and instruments necessary to consummate the transactions contemplated by this Agreement in respect of the Closing on the terms and subject to the conditions set forth in this Agreement, all of which, together with the documents and instruments referred to above, shall be in form and substance reasonably satisfactory to Buyer.
 
Section 2.7             Reserved .
 
Section 2.8              Certain Adjustments .  In the event that at or prior to the Closing Buyer changes the number of Buyer Common Stock or securities convertible or exchangeable into or exercisable for Buyer Common Stock (including Buyer Series A Preferred Stock, Buyer Series B Preferred Stock and Buyer Series C Preferred Stock) issued and outstanding prior to the Closing as a result of a reclassification, stock split (including a reverse split), stock dividend (including a distribution of securities convertible or exchangeable into or exercisable for shares of Buyer Common Stock) or other similar change with respect to the capital stock of Buyer, the Equity Consideration and the Reference Price shall be adjusted appropriately to reflect the appropriate effect of such reclassification, stock split, stock dividend or other similar change having a record date occurring on or after the date hereof and prior to the Closing.
 
Section 2.9              Section 116 of the Canadian Tax Act .  At the Closing UK Holdings shall deliver to Buyer a certificate issued pursuant to Section 116 of the Income Tax Act (Canada) (the “Canadian Tax Act”) in respect of the sale and purchase of the equity interests in Canada Holdings, provided that:
 
(a)            Unless a certificate is issued by the Minister of National Revenue (Canada) pursuant to subsection 116(2) of the Canadian Tax Act in respect of the disposition of the equity interests in Canada Holdings to Buyer specifying a certificate limit in an amount that is not less than the portion of the Purchase Price (adjusted in accordance with Section 2.3) allocated to the equity interests in Canada Holdings, Buyer will be entitled to withhold from the portion of the Cash Purchase Price payable to UK Holdings the amount that Buyer may be required to remit
 

 
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pursuant to subsection 116(5) of the Canadian Tax Act in connection with its acquisition of the equity interests in Canada Holdings (the “ Withheld Amount ”), and amount so withheld will be credited to Buyer as payment on account of the Purchase Price.
 
(b)            If, prior to the 28th day after the end of the month in which the Closing Date occurs (or such later time before which the Canada Revenue Agency (the “ CRA ”) confirms in writing that the CRA will not enforce the remittance of funds as required by subsection 116(5) of the Canadian Tax Act and that Buyer will not be liable for interest and penalties in respect of the late remittance of the funds withheld (the “ Comfort Letter ”)), UK Holdings delivers to Buyer:
 
    (i)          a certificate issued by the Minister of National Revenue under subsection 116(2) of the Canadian Tax Act in respect of the disposition of the equity interests in Canada Holdings to Buyer, Buyer will promptly pay to UK Holdings the lesser of (i) the Withheld Amount and (ii) the Withheld Amount less 25% of the amount, if any, by which the portion of the Purchase Price (adjusted in accordance with Section 2.3) allocated to the equity interest in Canada Holdings exceeds the certificate limit specified in such certificate, together with interest at the Applicable Rate on the Withheld Amount, accrued from the Closing Date to the date of such payment, or
 
    (ii)          a certificate issued by the Minister of National Revenue under subsection 116(4) of the Canadian Tax Act in respect of the disposition of the equity interests in Canada Holdings to Buyer, Buyer will promptly pay the Withheld Amount to UK Holdings, together with interest at the Applicable Rate on the Withheld Amount, accrued from the Closing Date to the date of such payment.
 
(c)             If Buyer continues to hold all or a portion of the Withheld Amount on the later of the 28th day after the end of the month in which the Closing Date occurs and the time when (if the CRA has provided the Comfort Letter) Buyer is obliged to remit funds to the CRA, Buyer will remit to the Receiver General of Canada the amount required to be remitted pursuant to subsection 116(5) of the Canadian Tax Act and Buyer will pay to UK Holdings, prior to such remittance, any remaining portion of the Withheld Amount, together with interest at the Applicable Rate thereon, accrued from the Closing Date to the date of such payment.
 
(d)            Where any amount is remitted to the CRA pursuant to this Section 2.9, Buyer shall furnish UK Holdings with confirmation that such remittance has been made.  Any such remittance will be deemed to have been paid by Buyer to UK Holdings on account of the Purchase Price.
 
ARTICLE III
 
REPRESENTATIONS AND WARRANTIES RELATING TO SELLER
 
Except as set forth in the Seller’s Disclosure Schedules, Seller represents and warrants to Buyer as of the date of this Agreement as follows:
 

 
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Section 3.1             Organization and Qualification .  Each of Parent and Seller is a company duly incorporated and validly existing under the Laws of England and Wales.
 
Section 3.2             Ownership .  Seller or one of its Subsidiaries is, and as of the Closing Date will be, the legal and beneficial owner of the Transferred Equity Interests (other than with respect to the New Transferred Entities) and has, and as of the Closing Date will have, good and valid title to the Transferred Equity Interests (other than with respect to the New Transferred Entities), free and clear of any Encumbrances.  Seller or one of its Subsidiaries as of the Closing Date will be the legal and beneficial owner of the Transferred Equity Interests (with respect to the New Transferred Entities) and as of the Closing Date will have good and valid title to the Transferred Equity Interests (with respect to the New Transferred Entities) free and clear of any Encumbrance.  The Transferred Entities are the only Affiliates of Seller by or through which the BGI Business is operated or conducted.
 
Section 3.3             Corporate Authority .  Each of Parent and Seller has full corporate power and authority to  execute and deliver this Agreement and each of the Ancillary Agreements to which it is a party and, subject only to the prior approval by the simple majority of eligible votes by holders of  Parent’s ordinary shares of 25 pence each (the “Parent Ordinary Shares”), present in person or by proxy or (being a corporation) by duly authorized representative, who are entitled to vote at the  general meeting of Parent, of any resolutions necessary to approve the transactions contemplated by this Agreement (or any postponement or adjournment thereof) (the “Parent Requisite Vote”), to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereunder and thereunder.  The execution, delivery and performance by each of Parent and Seller of this Agreement and each of the Ancillary Agreements to which it is a party, and each of the transactions contemplated hereunder or thereunder, have been duly and validly authorized, and, except for the Parent Requisite Vote, no additional corporate or shareholder authorization or consent is required in connection with the execution, delivery and performance by Parent or Seller of this Agreement and each of the Ancillary Agreements to which it is a party or any of the transactions contemplated hereunder or thereunder.
 
Section 3.4             Binding Effect .  This Agreement, when executed and delivered by Buyer, and each of the Ancillary Agreements to which either Parent or Seller is a party, when executed and delivered by the applicable counterparties thereto, will constitute a valid and legally binding obligation of either Parent or Seller, as applicable, enforceable against Seller in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
 
Section 3.5             Consents and Approvals .  Other than in connection with (a) the HSR Act, the EC Merger Regulation (to the extent required) or any other Antitrust Law, (b) any rule, regulation or order of the Office of the Comptroller of the Currency, (c) any applicable banking, securities or other financial services Law of any banking commission or any securities or other financial services regulator, (d) the provisions of the Transfer of Undertakings or any other similar Law of any competent jurisdiction or (e) such other Law, in each case, that is set forth on Section 3.5 of the Seller’s Disclosure Schedules (the matters covered under (a) through (e)
 

 
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above, collectively, the “ Seller’s Required Approvals ”), neither Parent nor Seller (and for purposes of Section 3.5(d) only, any Affiliate) is required to obtain any authorization, waiver, consent or approval of, or make any filing or registration with, or give any notice to, any Government Entity or to obtain any Permit in connection with the execution, delivery and performance by either Parent or Seller of this Agreement or each of the Ancillary Agreements to which it is a party or any of the transactions contemplated hereunder or thereunder, other than any authorization, waiver, consent, approval, filing, registration, notice or Permit, the failure of which to obtain, make or give would not, individually or in the aggregate, be reasonably expected to impair or delay materially the ability of either Parent or Seller to perform its obligations hereunder or thereunder or subject any Transferred Entity to criminal liability or any other adverse action by any Government Entity that is significant to the Transferred Entities, taken as a whole.
 
Section 3.6             Non-Contravention .
 
(a)            The execution, delivery and performance by each of Parent and Seller of this Agreement and each of the Ancillary Agreements to which Parent or Seller is a party, and the consummation by Parent and Seller of the transactions contemplated hereunder and thereunder, do not and will not, with or without the giving of notice, the lapse of time or both, (i) conflict with or violate any provision of the Organizational Documents of either Parent or Seller, (ii) assuming the receipt of all consents, approvals, waivers and authorizations and the making of the notices and filings (x) referred to in Section 3.5 or (y) required to be received or made by any of the Transferred Entities, as contemplated by Section 4.3 and Section 4.4, conflict with, or result in the breach of, or constitute a default under, or result in the termination, Encumbrance, vesting, cancellation, modification or acceleration of any right or obligation of either Parent or Seller under, or result in a loss of any benefit to which either Parent or Seller is entitled under, any Contract, Benefit and Compensation Arrangement or other agreement or instrument binding upon Parent or Seller or to which the property of either Parent or Seller is subject, (iii) assuming the receipt of all consents, approvals, waivers and authorizations and the making of notices and filings (A) referred to in Section 3.5 or (B) required to be received or made by any of the Transferred Entities or by Buyer or any of its Affiliates, violate or result in a breach of or constitute a default under any Law to which either Parent or Seller is subject or under any Permit of either Parent or Seller that is related to the BGI Business, other than, in the case of clauses (ii) and (iii), any conflict, breach, default, termination, Encumbrance, vesting, cancellation, modification, acceleration or loss that would not, individually or in the aggregate, reasonably be expected to impair or delay materially the ability of Parent or Seller to perform its obligations hereunder or thereunder.
 
(b)            The MSA has been terminated in accordance with its terms prior to the execution of this Agreement by Parent; and the “Seller Termination Fee” (as defined in the MSA) payable under the MSA will be paid in full on or after July 2, 2009 and prior to the Closing and neither Buyer nor any of its Affiliates, including the Transferred Entities (after payment of such Seller Termination Fee), shall have any liability, debts or other obligations (other than certain limited obligations of confidentiality in relation to information, knowledge or data regarding Blue
 

 
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Sparkle, L.P. and its Affiliates) to any Person in connection therewith or the transactions contemplated thereby.
 
Section 3.7             Investment Purpose .  Seller is acquiring the Equity Consideration for its own account, solely for the purpose of investment and not with a view to, or for sale in connection with, any distribution thereof in violation of the Securities Act or state securities or “blue sky” Law, or with any present intention of distributing or selling such Equity Consideration in violation of any such Law.  Seller acknowledges that the shares constituting the Equity Consideration are not registered under the Securities Act or any other applicable Law, and that such shares may not be transferred, sold or otherwise disposed of except pursuant to the registration provisions of the Securities Act or pursuant to an applicable exemption therefrom and pursuant to Laws and regulations of other jurisdictions as applicable.
 
Section 3.8             Finders’ Fees .  There is no investment banker, broker, finder or other intermediary that has been retained by or is authorized to act on behalf of either Parent or Seller who would be entitled to any fee or commission from either Parent or Seller in connection with this Agreement, any of the Ancillary Agreements or the transactions contemplated hereunder and thereunder.
 
Section 3.9             Litigation .  As of the date of this Agreement, there is no Litigation pending and served or threatened in writing or, to the Knowledge of Seller, pending and not served or otherwise threatened against or affecting Parent or any of its Affiliates that challenges the validity or enforceability of this Agreement or seeks to enjoin or prohibit consummation of, or seek other material equitable relief with respect to, the transactions contemplated by this Agreement or that would, individually or in the aggregate, reasonably be expected to impair or delay materially the ability of Parent or Seller to perform its obligations hereunder.
 
Section 3.10           No Other Representations or Warranties .  Except for representations and warranties contained in this Agreement (including any certificates or other instrument delivered in connection therewith), none of Parent, Seller or any other Person makes any other express or implied representation or warranty on behalf of Parent or Seller relating to Seller.  BUYER ACKNOWLEDGES AND AGREES THAT, EXCEPT IN THE CASE OF FRAUD, PARENT, SELLER AND THEIR AFFILIATES WILL NOT HAVE OR BE SUBJECT TO ANY LIABILITY OR INDEMNIFICATION OBLIGATION TO BUYER OR ANY OF ITS AFFILIATES OR ANY OTHER PERSON RESULTING FROM THE MAKING AVAILABLE OR FAILING TO MAKE AVAILABLE TO BUYER OR ANY OF ITS AFFILIATES, OR ANY USE BY BUYER OR ANY OF ITS AFFILIATES OF, ANY INFORMATION, INCLUDING ANY INFORMATION, DOCUMENTS, PROJECTIONS, FORECASTS OR OTHER MATERIAL MADE AVAILABLE TO BUYER OR ANY OF ITS AFFILIATES IN CERTAIN “DATA ROOMS” OR MANAGEMENT PRESENTATIONS IN EXPECTATION OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, EXCEPT TO THE EXTENT ANY SUCH INFORMATION IS EXPRESSLY INCLUDED IN A REPRESENTATION OR WARRANTY CONTAINED IN THIS AGREEMENT.
 

 
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ARTICLE IV
 
REPRESENTATIONS AND WARRANTIES RELATING TO THE
TRANSFERRED ENTITIES AND THE BGI BUSINESS
 
Except as set forth in the Seller’s Disclosure Schedules, Seller represents and warrants to Buyer solely in respect of the Transferred Entities and the BGI Business, as of the date of this Agreement, as follows:
 
Section 4.1             Organization and Qualification .  Each Transferred Entity (other than a New Transferred Entity) is as of the date of this Agreement, and each Transferred Entity will be as of the Closing, a legal entity duly organized or incorporated, validly existing and, to the extent such concept is applicable under any applicable local Law, in good standing under the Laws of its jurisdiction of organization.  Each Transferred Entity (other than a New Transferred Entity) has as of the date of this Agreement and each Transferred Entity will have as of the Closing, all requisite corporate or other similar power and authority to own, lease and operate all of its properties and assets and to carry on its businesses in all material respects as conducted, owned, leased or operated as of the date of this Agreement.  Each Transferred Entity (other than a New Transferred Entity) is as of the date of this Agreement, and each Transferred Entity will be as of the Closing, duly qualified to do business in each jurisdiction where the ownership or operation of its properties and assets or the conduct of its businesses requires such Transferred Entity to be so qualified, except for any failure to be so qualified that would not, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.  Seller has made available to Buyer, prior to the date of this Agreement, complete and correct copies of the Organizational Documents of each of the Transferred Entities, in each case, as in effect on the date of this Agreement.  Each Organizational Document of each Transferred Entity (other than a New Transferred Entity) is as of the date of this Agreement and will be as of the Closing, and of each New Transferred Entity will be as of the Closing, in full force and effect and there has been, or will be, no material violation thereof.
 
Section 4.2             Capitalization .
 
Section 4.2 of the Seller’s Disclosure Schedules sets forth, for each Transferred Entity (other than a New Transferred Entity), as of the date of this Agreement and as of the Closing, (A) the name and jurisdiction of organization of such Transferred Entity, (B) the number of shares of authorized and outstanding capital stock or other equity interests of such Transferred Entity and the names of the holders thereof and (C) the number of shares of authorized and outstanding capital stock or other equity interests of such Transferred Entity that are held in treasury by such Transferred Entity; provided , however that Section 4.2 of the Seller’s Disclosure Schedules will be updated prior to the Closing to reflect the organization of the New Transferred Entities.  As of the date of this Agreement, all of the outstanding shares of capital stock and other equity interests of the Transferred Entities (other than the New Transferred Entities) have been, and as of the Closing, all of the outstanding shares of capital stock and other equity interests of the Transferred Entities will be, duly authorized and are validly issued, fully paid and non-assessable and not issued in violation of any Equity Rights.  As
 

 
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of the date of this Agreement and as of the Closing, there are no securities, preemptive or other outstanding rights, rights of first refusal, options, warrants, calls, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, plans, “tag along” or “drag along” rights, agreements, arrangements, undertakings or commitments of any character (collectively, “ Equity Rights ”) (i) under which any Transferred Entity is or may become obligated to issue, deliver, redeem, purchase or sell, or cause to be issued, delivered, redeemed, purchased or sold, or in any way dispose of, any shares of the capital stock or other equity interests, or any securities or obligations that are exercisable or exchangeable for, or convertible into, any shares of the capital stock or other equity interests, of such Transferred Entity, and no securities or obligations evidencing such rights are authorized, issued or outstanding, (ii) giving any Person a right to subscribe for or acquire any Transferred Equity Interests or (iii) obligating any of the Transferred Entities to issue, grant, adopt or enter into any such Equity Right in respect of any Transferred Entity.  As of the date of this Agreement and as of the Closing, none of the Transferred Entities has any (x) outstanding Indebtedness that could convey to any Person the right to vote, or that is convertible into or exercisable for Transferred Equity Interests or equity of any Transferred Entity or (y) Equity Rights that entitle or convey to any Person the right to vote with the holders of Transferred Equity Interests or equity of any Transferred Entity on any matter.  As of the date of this Agreement and as of the Closing, the outstanding capital stock and other equity interests of the Transferred Entities are not subject to any voting trust agreement or other Contract restricting or otherwise relating to the voting, dividend rights or disposition of such capital stock or other equity interests.  As of the date of this Agreement and as of the Closing, there are no outstanding or authorized phantom stock, profit participation or similar rights providing economic benefits based, directly or indirectly, on the value or price of the capital stock or other equity interests of the Transferred Entities.  As of the date of this Agreement and as of the Closing, no Transferred Entity has any proprietary investment with a fair market or book value in excess of $5,000,000 or which represents five percent (5%) or more of the voting securities of any such Person other than another Transferred Entity.
 
Section 4.3             Consents and Approvals .  Other than the Seller’s Required Approvals or as set forth on Section 4.3 of the Seller’s Disclosure Schedules (the “ Transferred Entities’ Required Approvals ”), no Transferred Entity is required to obtain any authorization, waiver, consent or approval of, or make any filing or registration with, or give any notice to, any Government Entity or to obtain any Permit in connection with the execution, delivery and performance by Seller of this Agreement or any of the transactions contemplated by this Agreement, other than any authorization, waiver, consent, approval, filing, registration, notice or Permit the failure of which to obtain, make or give would not, individually or in the aggregate, be reasonably expected to materially impair or delay the ability of Seller to perform its obligations hereunder or subject any Transferred Entity to any criminal liability or any other adverse action by any Government Entity that is significant to the Transferred Entities, taken as a whole.
 
Section 4.4             Non-Contravention .  The execution, delivery and performance by Seller of this Agreement and each of the Ancillary Agreements to which it is a party, and the consummation by Seller of the transactions contemplated by this Agreement and each of the Ancillary Agreements to which it is a party, do not and will not, with or without the giving of
 

 
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notice, the lapse of time or both, (a) conflict with or violate any provision of the Organizational Documents of any Transferred Entity, (b) assuming the receipt of all consents, approvals, waivers and authorizations and the making of the notices and filings (i) referred to in Section 4.3 or (ii) required to be received or made by Seller, as contemplated by Section 3.5 and Section 3.6, conflict with, or result in the breach of, or constitute a default under, or result in the termination, Encumbrance, vesting, cancellation, modification or acceleration of any right or obligation of any Transferred Entity under, or result in a loss of any benefit to which any Transferred Entity, any Fund or the BGI Business is entitled under, any Contract, Benefit and Compensation Arrangement or other agreement or instrument binding upon any Transferred Entity or to which the property of any Transferred Entity is subject, (c) assuming the receipt of all consents, approvals, waivers and authorizations and the making of notices and filings (i) referred to in Section 4.3 or (ii) required to be received or made by Seller or by Buyer or any of its Affiliates, violate or result in a breach of or constitute a default under any Law to which any Transferred Entity or any Fund is subject or under any Permit of any Transferred Entity that is primarily related to the BGI Business, other than, in the case of clauses (b) and (c), any conflict, breach, default, termination, Encumbrance, vesting, cancellation, modification, acceleration or loss that would not, individually or in the aggregate, reasonably be expected to impair or delay materially the ability of Seller to perform its obligations hereunder or thereunder or subject any Transferred Entity, Fund or Buyer or any of its Affiliates to criminal liability or any other adverse action by any Government Entity that is significant to the Transferred Entities, taken as a whole.
 
Section 4.5             Financial Information .
 
(a)            Set forth on Section 4.5 of the Seller’s Disclosure Schedules are complete and correct copies of the unaudited combined balance sheet of the Transferred Entities as of December 31, 2008, December 31, 2007 and December 31, 2006 (the “ Unaudited Balance Sheet ”) and the unaudited combined statement of income for the Transferred Entities for the years ended December 31, 2008 (such statement of income for 2008, together with the Unaudited Balance Sheet as of December 31, 2008, the “ 2008 Unaudited Financial Statements ”, December 31, 2007 and December 31, 2006 (together with the Unaudited Balance Sheet, the “ Unaudited Financial Statements ”).  The Unaudited Financial Statements have been derived from the accounting books and records of the Transferred Entities and present fairly, in all material respects, the combined financial position and results of operations of the Transferred Entities as of and for the dates and periods thereof, and each of such Unaudited Financial Statements has been prepared in accordance with IFRS applied on a basis consistent with past practice, except as expressly provided in the Unaudited Financial Statements.
 
(b)            The books and records of the Transferred Entities have been maintained in all material respects in accordance with reasonable business practices.  The Unaudited Balance Sheet does not reflect any material asset that is not intended to constitute a part of the BGI Business after giving effect to the transactions contemplated hereunder (excluding routine dispositions of assets in the ordinary course of business consistent with past practice), and the income statement for the year ended December 31, 2008 included in the Unaudited Financial Statements does not reflect the results of any material operations of any Person that are not intended to constitute a part of the BGI Business after giving effect to the transactions
 

 
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contemplated hereunder.  Such income statement reflects all material costs that historically have been incurred in connection with the operation of the BGI Business.
 
(c)            The Transferred Entities maintain in all material respects internal control over financial reporting to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with IFRS, including policies and procedures that (i) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Transferred Entities, (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with IFRS, and that receipts and expenditures of the Transferred Entities are being made only in accordance with authorizations of management and directors of the Transferred Entities and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the assets of the Transferred Entities that could have a material effect on the financial statements.
 
(d)            Section 4.5(d) of the Seller’s Disclosure Schedules correctly sets forth all Indebtedness of the Transferred Entities to third parties (which, for the avoidance of doubt, does not include Seller and its Affiliates) as of the date hereof, and for each item of such Indebtedness set forth thereon, identifies the debtor, the principal amount as of the date of this Agreement, the creditor, the maturity date and the collateral, if any, securing the Indebtedness.
 
Section 4.6             Litigation and Claims .
 
(a)            Other than with respect to Taxes (the sole representations with respect to which are set forth in Section 4.7 and 4.17(j) through (n)), Section 4.6(a) of the Seller’s Disclosure Schedules contains as of the date hereof a complete and correct list of all material pending and served and or threatened in writing or, to the Knowledge of Seller, any other material unserved or orally threatened Litigation and governmental investigations concerning the Transferred Entities or the BGI Business.  Other than with respect to Taxes (the sole representations with respect to which are set forth in Section 4.7 and Section 4.17(j) through (n)), there is no civil, criminal, administrative or regulatory action or Litigation by any Person pending, or to the Knowledge of Seller, threatened against or relating to any of the Transferred Entities, or any of their properties, assets or rights or the BGI Business, that, individually or in the aggregate, have had or would reasonably be expected to be material to the Transferred Entities, taken as a whole.
 
(b)            Other than with respect to Taxes (the sole representations with respect to which are set forth in Section 4.7 and Section 4.17(j) through (n)) or as set forth on Section 4.6(b) of the Seller’s Disclosure Schedules, no Transferred Entity nor the BGI Business is subject to any order, writ, judgment, award, injunction or decree of any Government Entity or any arbitrator that would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
 
Section 4.7             Taxes .  As of the date of this Agreement and as of the Closing Date with respect to a Transferred Entity:
 

 
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(a)            All material Tax Returns with respect to the Transferred Entities required to be filed have been duly and timely filed with the appropriate Government Entity, and all such Tax Returns are true, correct and complete in all material respects, and the Transferred Entities have timely paid all Taxes shown as due on such Tax Returns.  All other material Taxes of the Transferred Entities have been paid, or an adequate provision has been made therefor on the appropriate financial statements in accordance with GAAP, IFRS, or other relevant applicable accounting principles.
 
(b)            Each of the Transferred Entities has withheld from its employees, independent contractors or Affiliates, and other third parties all amounts required to be withheld with respect to any amounts paid or benefits furnished to any such Person and timely paid such amounts withheld to the appropriate Government Entity (or other authority) or set aside in an account for such purpose such amounts for all periods, in each case, in material compliance with all Tax withholding provisions (including income, social security, Indirect Taxes and employment Tax withholding for all types of compensation) under applicable Laws, and is in compliance with all applicable Laws regarding the filing, solicitation, collection and maintenance of any forms, certifications and other information required in connection with federal, state, local or foreign Tax reporting requirements.
 
(c)            There are no material audits, examinations, investigations or other proceedings pending or threatened in writing in respect of Taxes with respect to any of the Transferred Entities, no material issues that have been raised by a Government Entity in connection with any examination of the Tax Returns referred to in Section 4.7(a) are currently pending, and all material deficiencies asserted or material assessments made, if any, as a result of such examinations have been paid in full, or an adequate provision has been made therefor on the appropriate financial statements in accordance with GAAP, IFRS, or other relevant applicable accounting principles.  None of the Transferred Entities (x) is the subject of any material agreement, ruling or arrangement in respect of Taxes with any Government Entity, and no such agreement, ruling or arrangement is pending or (y) is or has been entitled to any Tax holiday, Tax credit, or other similar Tax incentive or benefit from any jurisdiction (other than such benefits as are generally available to all Persons engaged in business and subject to tax as a resident in such jurisdiction), which would be subject to forfeiture, recapture, or other recovery by the Government Entity granting such benefit in connection with the transactions contemplated hereby or in connection with any dissolution, or cessation of business in, or withdrawal of assets from or a reduction of the number of employees in the relevant jurisdiction.
 
(d)            None of the Transferred Entities has any material liability for the Taxes of any Person under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise.
 
(e)            There are no Encumbrances for Taxes, other than Permitted Encumbrances, upon any of the assets of any Transferred Entity.
 
(f)            No (A) waiver of any statute of limitations in respect of material Taxes, (B) agreement for any extension of time with respect to a Tax assessment or deficiency or
 

 
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(C) power of attorney has been granted with respect to material Taxes, in each case, relating to any Transferred Entity or the assets thereof.  None of the Transferred Entities is a party to, bound by, or has any obligation or liability under, any Tax allocation or sharing agreement or arrangement.
 
(g)            None of the Transferred Entities will be required to include any item of income in or exclude any item of deduction from, taxable income for any period ending after the Closing as a result of any (i) request for a ruling, advance pricing agreement, or “closing agreement” as defined in Section 7121 of the Code (or any corresponding or similar provision of U.S. state or local or foreign Tax law); (ii) material installment sale or open transaction disposition made on or before the Closing Date; (iii) adjustment pursuant to Section 481(a) of the Code or any similar provision of U.S. state or local Tax law; or (iv) material deferred intercompany item; (v) excess loss account as described in Treasury Regulations under Section 1504 or any similar provision of U.S. state or local Tax law.
 
(h)            No Foreign Transferred Entity has any investment in United States property within the meaning of Section 956(c) of the Code.
 
(i)            Each of the Transferred Entities is, and has at all times during its existence been, classified for U.S. income Tax purposes as the type of entity set forth in Section 4.7(i) of the Seller’s Disclosure Schedules hereto.
 
(j)            None of the Transferred Entities is or has been a member of any consolidated, combined, connected, unitary affiliated or similar group of corporations that filed or was required to file consolidated, combined or unitary Tax Returns (or any Tax Returns of a similar nature or statues under the provisions of U.S. federal, state, local or foreign Law) other than a group which includes only Transferred Entities.
 
(k)            None of the Transferred Entities has constituted either a “distributing corporation” or “controlled corporation” (within the meaning of Section 355(e)(1)(A) of the Code) in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (A) in the two (2) years prior to the date of this Agreement or (B) in a distribution which could otherwise constitute a “plan” or “series of related transactions” (within the meaning of Section 355 of the Code) with the transactions contemplated by this Agreement.
 
(l)            There has been made available to Buyer correct and complete copies of the relevant portion of all federal and other material Tax Returns of the Transferred Entities for the taxable periods ending within the last three calendar years before the Closing Date, which have been filed.
 
(m)            Section 4.7(m) of the Seller’s Disclosure Schedules lists all foreign, state and local jurisdictions in which any Transferred Entities file Tax Returns.  No claim or inquiry has been made by any Government Entity in a jurisdiction in which a Transferred Entity does not file Tax Returns that it is or may be subject to taxation or any requirement to file Tax Returns in such jurisdiction.
 

 
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(n)            No Transferred Entity has (i) participated in any “listed transaction” within the meaning of Treasury Regulation Section 1.6011-4(c)(3)(i)(A), (ii) promoted, marketed, offered to sell, sold or advised in respect of any such “listed transaction.”
 
(o)            [Reserved]
 
(p)            Each UK Entity has (or Seller and its Affiliates, on behalf of each UK Entity, have) preserved all material records required by law to be preserved and all other material records required for the delivery of correct and complete Tax Returns or the computation of any Tax.
 
(q)            Each UK Entity has made and submitted each claim, disclaimer, election, notice and consent relating to Taxes assumed to have been made for the purposes of its statutory accounts.
 
(r)            No UK Entity is under an obligation to pay, nor has any UK Entity paid or agreed to pay at any time in the last 6 months, any compensation for loss of office not deductible in computing its income for the purposes of UK corporation tax.
 
(s)            No UK Entity is, and no UK Entity has been at any time within the last seven years, a close company as defined in s414 Income and Corporation Taxes Act 1988 (“ ICTA ”).
 
(t)            Each UK Entity is and has, throughout the past three years, been resident solely in the United Kingdom for all Tax purposes and is not and has not been treated as resident or subject to Tax in any other jurisdiction for any Tax purpose. No UK Entity has, nor has any UK Entity had, a branch, agency or permanent establishment outside the United Kingdom.
 
(u)            No UK Entity is and no UK Entity has been treated as a branch, agency or permanent establishment in the UK or as a UK representative of any other person for UK Tax purposes in the past three years.
 
(v)            No UK Entity has carried out or caused or permitted to be carried out any transaction (i) specified at the relevant time in s765(1) ICTA otherwise than with the prior consent of HM Treasury which (for the avoidance of doubt) includes consent pursuant to the Treasury General Consents (ii) specified at the relevant time in s765A ICTA without having duly provided the required information to HM Revenue & Customs.
 
(w)            All documents in the enforcement of which any UK Entity may be interested have been duly stamped (to the extent liable for ad valorem duty) and so far as Seller is aware no document in the enforcement of which any UK Entity may be interested has not been stamped by reason of it being executed and retained abroad.
 
(x)            No UK Entity has any unpaid liability to stamp duty reserve tax and no conditional agreement has been entered into prior to the Closing which could lead to any UK Entity incurring such a liability or becoming accountable for stamp duty reserve tax at any time after the Closing.
 

 
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(y)            Each UK Entity has duly filed all land transaction returns required by law to be filed and has paid all stamp duty land tax properly due in respect of such land transactions.
 
(z)            Each UK Entity is duly registered for VAT purposes or a member of a VAT Group and its registration is not and has not in the last four years been subject to any conditions or to any requirement to provide security.
 
(aa)            To the extent that any UK Entity has been a member of a VAT Group in the last four years, the names of such UK Entities, the name(s) of the representative member(s) of the relevant VAT Group(s) and the VAT registration number(s) of such VAT Group(s) are set out in the Seller’s Disclosure Schedules.
 
(bb)            No UK Entity is or has been involved in, or is or has been involved in promoting, any arrangement, scheme, transaction or series of transactions disclosure of which was or would be (if entered into on Closing) required pursuant to Part 7 Finance Act 2004, Schedule 11A Value Added Tax Act 1994 or regulations made under s132A Social Security Administration Act 1992.
 
Section 4.8             Employee Benefits .
 
(a)            All employment (or form of employment), benefit and compensation agreements, plans, contracts, programs, policies or arrangements covering one or more Employees or former employees of a Transferred Entity (to the extent there is a current or future obligation to such former employee under any Assumed Benefit and Compensation Arrangement), including any trust instruments and insurance contracts forming a part thereof, any deferred compensation, stock option, stock purchase, stock appreciation rights, stock based or other incentive, bonus, consulting, post-retirement insurance, workers’ compensation, disability, fringe or other benefit, vacation and severance plans and all severance and change in control agreements, plans, contracts, programs, policies or arrangements, including without limitation any “employee benefit plans” within the meaning of Section 3(3) of ERISA and all amendments thereto (the “ Benefit and Compensation Arrangements ”), are listed on Section 4.8(a) of the Seller’s Disclosure Schedules.  Each Benefit and Compensation Arrangement or portion thereof sponsored solely by any Transferred Entity or one of its Subsidiaries (except as otherwise set forth in Section 4.8(a) of the Seller’s Disclosure Schedule) is separately identified on Section 4.8(a) of the Seller’s Disclosure Schedules and is referred to herein as an “ Assumed Benefit and Compensation Arrangement .”  Each Assumed Benefit and Compensation Arrangement that provides only health, welfare, retirement and other employee benefits shall be referred to herein as an “Assumed Benefit Arrangement.”  Seller has delivered to Buyer (A) a copy of each Assumed Benefit and Compensation Arrangement and a summary of each material Benefit and Compensation Arrangement that is not an Assumed Benefit and Compensation Arrangement, and (B) with respect to each Assumed Benefit and Compensation Arrangement (where applicable), (i) the most recent summary plan description, (ii) the most recent determination letter received from the Internal Revenue Service with respect to such plan, (iii) the most recent Form 5500 Annual Report, (iv) the most recent audited financial statement and actuarial valuation report, and (v) the version effective as of the date of this Agreement of all
 

 
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related agreements (including trust agreements), insurance Contracts and other Contracts which implement such plan.
 
(b)            In relation to the Bank UK Retirement Fund, Seller has made available to Buyer prior to the date of this Agreement complete and correct copies of the most recent trust deed and rules governing such scheme and all subsequent explanatory booklets and member announcements related to the sections of the Bank UK Retirement Fund in which Employees participate.
 
(c)            All Benefit and Compensation Arrangements are and have been operated in compliance in all material respects with all applicable Laws of the relevant jurisdiction (including any local regulatory or Tax approval requirements) and, to the extent relevant, the governing provisions of the relevant Benefit and Compensation Arrangement (such Laws and provisions hereinafter referred to as “ Applicable Local Law ”).  No material Litigation is pending or, to the Knowledge of Seller, threatened with respect to any Benefit and Compensation Arrangement.
 
(d)            Each Assumed Benefit and Compensation Arrangement that is a U.S. Benefit and Compensation Arrangement and that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter from the U.S. Internal Revenue stating that the plan is so qualified and to the Knowledge of Seller no event exists that is reasonably likely to result in the loss of such qualification.
 
(e)            None of Parent, Seller nor any of the Transferred Entities nor any ERISA Affiliate has, within the six year period prior to the date of this Agreement, ever maintained, established, sponsored, participated in, or contributed to, any U.S. Benefit and Compensation Arrangement that is an “employee pension benefit plan,” within the meaning of Section 3(2) of ERISA subject to Title IV of ERISA or Section 412 of the Code.  The term “ ERISA Affiliate ” means any Person that, together with Seller or any of its Subsidiaries, would be deemed a “single employer” within the meaning of Section 414(b), Section 414(c), Section 414(m) or Section 414(o) of the Code.  No direct, contingent or secondary liability has been incurred or is expected to be incurred by any Transferred Entity under Title IV of ERISA to any party with respect to any U.S. Benefit and Compensation Arrangement or “multiemployer plan” within the meaning of Section 3(37) of ERISA, or with respect to any other U.S. Benefit and Compensation Arrangement presently or heretofore maintained or contributed to by any ERISA Affiliate.
 
(f)            All material contributions, reserves or premium payments required to be made with respect to any Employee under the terms of any Assumed Benefit and Compensation Arrangement have been made or have been accrued or otherwise adequately reserved for in the Unaudited Financial Statements or will otherwise be timely made prior to the Closing Date.
 
(g)            There has been no amendment to, or announcement by Seller or any of its Affiliates in respect of the Employees relating to, or change in employee participation or coverage under, any Assumed Benefit and Compensation Arrangement which would increase materially the expense of maintaining such Assumed Benefit and Compensation Arrangement above the level of the expense incurred therefor for the year ended December 31, 2008.
 

 
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(h)            Neither the execution of this Agreement nor the consummation of the transactions contemplated by this Agreement will (i) entitle any Employees to severance pay or benefits or any increase in severance pay, benefits or would result in an increase in the applicable notice period upon any termination of employment on or after the date of this Agreement, (ii) accelerate the time of payment or vesting or result in any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, increase the amount payable or result in any other material obligation pursuant to any of the Benefit and Compensation Arrangements to any Employees, (iii) limit or restrict the right of Buyer or any of its Affiliates in respect of the Employees to merge, amend or terminate any of the Assumed Benefit and Compensation Arrangements, (iv) cause Seller or any of its Affiliates in respect of the Employees to record additional compensation expense on its income statement with respect to any outstanding stock option or other equity-based award or (v) result in payments under any of the Assumed Benefit and Compensation Arrangements which would not be deductible under Section 280G of the Code or any Applicable Local Law.
 
(i)            No Benefit and Compensation Arrangement is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside the United States (any such Benefit and Compensation Arrangement, a “ Foreign Benefit Plan ”).  To the Knowledge of Seller, all Foreign Benefit Plans (i) have been established, maintained and administered in compliance in all material respects with their terms and all applicable Laws of any controlling Government Entity and (ii) that are subject to a funding requirement under Applicable Local Law are in material compliance with such requirement.
 
(j)            Each Assumed Benefit and Compensation Arrangement that is a “non-qualified deferred compensation plan” (as defined for purposes of Section 409A(d)(1) of the Code) has been maintained and operated since January 1, 2005 in good faith compliance with Section 409A of the Code and all applicable IRS guidance promulgated thereunder so as to avoid any Tax, penalty or interest under Section 409A and, as to any such plan in existence prior to January 1, 2005, has not been “materially modified” (within the meaning of IRS Notice 2005-1) at any time after October 3, 2004, and (ii) since January 1, 2009, been in documentary and operational compliance with Section 409A of the Code and all applicable IRS guidance promulgated thereunder.
 
(k)            No U.S. Benefit and Compensation Arrangement that is an Assumed Benefit and Compensation Arrangement provides, or reflects or represents any liability to provide, material retiree health or life benefits (including, without limitation, death or medical benefits), whether or not insured, with respect to any Employee, or any spouse or dependent of any such Employee, beyond such Employee’s retirement or other termination of employment with Seller and its Subsidiaries other than (i) coverage mandated by Part 6 of Title I of ERISA or Section 4980B of the Code, (ii) retirement or death benefits under any plan intended to be qualified under Section 401(a) of the Code, (iii) disability benefits that have been fully provided for by insurance under a Benefit and Compensation Arrangement that constitutes an “employee welfare benefit plan” within the meaning of Section (3)(1) of ERISA, or (iv) benefits with respect to one or more of the employment contracts set forth on Section 4.8(k) of the Seller’s Disclosure Schedules.
 

 
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(l)            No Transferred Entity is a party to any agreement or arrangement as to which payments of compensation would constitute “non-qualified deferred compensation” of a “non-qualified entity” (each within the meaning of Section 457A of the Code).
 
Section 4.9             Permits .  The Transferred Entities (excluding UK Trust Manager which does not as of the date of this Agreement conduct any business) hold, and the New Transferred Entities will hold as of immediately prior to the Closing, all Permits required in order to permit the Transferred Entities and the New Transferred Entities to own or lease their properties and assets and to conduct the BGI Business under and pursuant to all applicable Laws, in each case, other than any failure to hold any Permit that would not, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.  All such Permits are valid and in full force and effect, except for those the failure of which to be valid or to be in full force and effect would not, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.  No violations with respect to such Permits have occurred that would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole, and no Litigation is pending and served or threatened in writing or, to the Knowledge of Seller, pending and not served or otherwise threatened to suspend, cancel, modify, revoke or materially limit any such Permits, which Litigation would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.  Each Employee who is required to be registered or licensed as a registered representative, investment adviser representative, sales person or an equivalent person with any Government Entity is duly registered as such and such registration is in full force and effect, except for such failures to be so registered or for such registration to remain in full force and effective that, individually or in the aggregate, would not reasonably be expected to be material to the Transferred Entities, taken as a whole.
 
Section 4.10           Environmental Matters .  (i) To the Knowledge of Seller, the Transferred Entities are in compliance in all material respects with all Environmental Laws applicable to the conduct and operation of their businesses or pertaining to any properties or assets of the Transferred Entities (including any real property now or previously owned by a Transferred Entity during the past five years from the date of this Agreement); (ii) the Transferred Entities have not received in the last 12 months any written notice, demand, letter, claim or request for information alleging that they are materially in violation of or liable under any material Environmental Law applicable to the conduct and operation of their businesses, or pertaining to any properties or assets of the Transferred Entities and which remains outstanding as of the date of this Agreement; (iii) no Transferred Entity is subject to any order, decree or injunction with any Government Entity concerning liability under any Environmental Law that would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole; (iv) to the Knowledge of Seller, there are no material events, circumstances or conditions at or relating to any real property now or previously owned during the past five years from the date of this Agreement or now leased in connection with the businesses of the Transferred Entities or the BGI Business that would reasonably be expected to result in a material liability to the Transferred Entities under any Environmental Law; and (v) Seller has provided or made available to Buyer all material environmental reports, assessments, investigations or other analyses in Seller’s possession or control relating to property now or
 

 
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previously owned during the past five years from the date of this Agreement or now leased in connection with the businesses of the Transferred Entities.
 
Section 4.11           Intellectual Property .
 
(a)            The Transferred Entities either exclusively own free and clear of all Encumbrances, other than Permitted Encumbrances, or have the right pursuant to written Contracts to use, all material Intellectual Property that is used in the conduct of the BGI Business or by a Transferred Entity.
 
(b)            Section 4.11(b) of the Seller’s Disclosure Schedules includes a complete and accurate list of all United States, foreign and multinational: (i) Patents and Patent applications; (ii) Trademarks and Trademark applications; (iii) Internet domain names and (iv) Copyright registrations and applications that are owned by one or more of the Transferred Entities.
 
(c)            Section 4.11(c) of the Seller’s Disclosure Schedules includes a complete and accurate list of all material software programs that are owned by one or more of the Transferred Entities.
 
(d)            The conduct of the businesses of the Transferred Entities as conducted as of the date of this Agreement does not materially infringe, misappropriate or otherwise violate the Intellectual Property of any other Person or constitute unfair competition or trade practices under the Laws of any jurisdiction that would, individually or in the aggregate, reasonably be expected to be material to the BGI Business as a whole.  Neither Seller nor any of the Transferred Entities has within the past two years received any written notice or written claim asserting any of the foregoing.  To the Knowledge of Seller, none of the material Intellectual Property owned by any of the Transferred Entities is being infringed, misappropriated or otherwise violated by any other Person.  Neither Seller nor any of the Transferred Entities has entered into any Contract granting any other Person the right to bring infringement actions with respect to, or otherwise to enforce rights with respect to, any of the material Intellectual Property owned by any of the Transferred Entities.
 
(e)            The Transferred Entities have taken commercially reasonable steps to protect their rights in the material Trade Secrets owned by any of them, excluding any information that any Transferred Entity, in the exercise of its business judgment, determined was of insufficient value to protect as a Trade Secret.
 
(f)            Except as set forth on Section 4.11(f) of the Seller’s Disclosure Schedules, neither Seller nor any of the Transferred Entities has conveyed, pledged or otherwise transferred ownership of, or granted or agreed to grant any exclusive license of or right to use, or granted joint ownership of, any material Intellectual Property owned by any of the Transferred Entities to any other Person.  None of the material Intellectual Property owned by any of the Transferred Entities is subject to any proceeding or any outstanding decree, order or judgment that restricts in any material respect the relevant Transferred Entity’s use, transfer or licensing of such material Intellectual Property.
 

 
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(g)            The Transferred Entities use commercially reasonable efforts to protect, in all material respects, (i) personally identifiable information provided by the Transferred Entities’ customers and website users from unauthorized disclosure or use and (ii) the security of their information technology systems, and none of the Transferred Entities has, as of the date hereof, received, within the past 24 months, any written claim pending against them alleging any material breach, violation, misuse or unauthorized disclosure of any of the foregoing.  The Transferred Entities have not experienced, within the past 24 months, any data loss, breach of security, or other unauthorized access, in any such case, material to the BGI Business, taken as a whole, to its information technology systems or databases by any Person.
 
(h)            From and after the Closing, the Transferred Entities will own or have the right to use pursuant to written Contracts, or as otherwise provided pursuant to this Agreement or any Ancillary Agreement, all Intellectual Property necessary to conduct the BGI Business in all material respects as conducted on the date of this Agreement and immediately prior to the Closing.
 
Section 4.12          Labor .
 
(a)            None of the Transferred Entities is a party to or bound by any labor agreement, union contract or collective bargaining agreement, and there are no labor unions or other organizations representing any Employee, works councils or employee representative bodies within the Transferred Entities or affecting the Transferred Employees, other than omnibus agreements covering substantially all Employees in a foreign jurisdiction pursuant to the Laws or customary practice of that jurisdiction respecting employees.  Each Transferred Entity and Seller and any other Seller Affiliate (in respect of the employment of any of the Employees) which employs any Employee is or has been in compliance in all material respects with all applicable Laws in respect of employment and employment practices including, without limitation, all Laws in respect of terms and conditions of employment, health and safety, employee independent contractor classifications, wages and hours of work, child labor, immigration, employment discrimination, disability rights or benefits, equal opportunity, plant closures and layoffs, affirmative action, workers’ compensation, labor relations, employee leave issues, unemployment insurance and the collection and payment of withholding or social security Taxes and any similar Tax. Since January 1, 2008, there has not been, and there is not now pending or, to the Knowledge of Seller, threatened (a) any material strike, lockout, slowdown, picketing or work stoppage with respect to the Employees or (b) any unfair labor practice charge against the Transferred Entities, in the case of (b), that have had or resulted in or would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
 
(b)            Each person who primarily provides services to a Transferred Entity is an Employee.  Section 4.12(b) of Seller’s Disclosure Schedules lists or describes (i) each Contract, and each outsourcing, agency or other arrangement (whether with third parties or with Seller or any Affiliate of Seller and whether formal or informal), pertaining to the provision of the services of employees (whether on a full time or part time basis) to any Transferred Entity, and (ii) each person who is employed by Seller or an Affiliate (other than a Transferred Entity) who
 

 
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primarily provides services to a Transferred Entity (each such person, unless otherwise noted in Section 4.12(b) of Seller’s Disclosure Schedules, a “ Transferred Employee ”).
 
Section 4.13          Contracts .
 
(a)            Section 4.13(a) of the Seller’s Disclosure Schedules contains a complete and correct list of all of the following Contracts, in effect as of the date of this Agreement, to which a Transferred Entity is a party, is bound by or subject to, or pursuant to which the BGI Business is conducted (the “ Specified Contracts ”):
 
   (i)            any Contract for the placement, distribution or sale of shares, units or other ownership interests of a Fund that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $5,000,000 in 2009;
 
   (ii)           any administration agreement or any other Contract for the provision of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or less;
 
   (iii)          any Contract, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009;
 
   (iv)          any Contract prohibiting or materially restricting the ability of any Transferred Entity to conduct its business, to engage in any business or operate in any geographical area or to compete with any Person;
 
   (v)           any Contract for any joint venture, strategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the Transferred Entities, taken as a whole;
 
   (vi)          any Contract relating to any Indebtedness of a Transferred Entity in an amount in excess of $5,000,000, other than:  (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;
 
   (vii)         any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be
 

 
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responsible for Indebtedness or liabilities of any Person (other than any Transferred Entity) in each case in excess of $10,000,000;
 
   (viii)        any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments in 2009 of $5,000,000 or more;
 
   (ix)          any Contract entered into since January 1, 2007 for the acquisition or disposition of a Person or a division of a Person, or for the acquisition or sale of any assets (including Intellectual Property), properties, equity interests or rights, other than any such sale or acquisition in the ordinary course of business or any such sale or acquisition that would not reasonably be expected to be material to the Transferred Entities, taken as a whole; and
 
   (x)          any BGI Affiliate Arrangement that will be in effect after the Closing.
 
(b)            Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement.  Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $1,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), (ii) and (iii) being the “ Significant Contracts ”) is in full force and effect, and is valid and binding on the Transferred Entity that is a party thereto, and, to the Knowledge of Seller, on each other party thereto.  There exists no breach or default of any Significant Contract on the part of any Transferred Entity which (with or without notice or lapse of time or both) would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.  No Transferred Entity has received any written notice of an intention to terminate, not to renew or to challenge the validity or enforceability of any Significant Contract, the termination, failure to renew or challenge of which would, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
 
(c)            As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
 
   (i)           other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
 
   (ii)          other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to
 

 
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reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
 
   (iii)          other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individually.
 
(d)            Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
 
(e)            Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
 
(f)            Attached as Section 4.13(f) of the Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
 
(g)            Seller has made available to Buyer a true and complete copy of its form of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, in each case provided to certain funds and clients of the securities lending or short-term cash businesses of the BGI Business, and none of the Contracts used by the Transferred Entities for such purposes materially deviates from such standard forms.
 
Section 4.14           Absence of Changes .  During the period between December 31, 2008 and the date of this Agreement, except for any actions taken in connection with (a) any transactions contemplated by this Agreement or any Ancillary Agreement or the MSA or (b) any efforts to sell the Transferred Entities or any business thereof, (x) each Transferred Entity and each Fund  has conducted its business in the ordinary course consistent with past practices of such Transferred Entity or such Fund, except for any actions by a Fund that are directed or recommended by a Transferred Entity, or are otherwise approved or effected by the relevant Fund board or trustee, in the ordinary course of the Transferred Entity’s or the Fund’s business, and (y) no Transferred Entity has and, in connection with the BGI Business, Seller has not taken any action that would be prohibited by the terms of Section 6.2(A), Section 6.2(B), Section 6.2(F), Section 6.2(G)(iv) and Section 6.2(H), had such terms been applicable during such period.  During the period between December 31, 2008 and the date of this Agreement, there has not occurred a Material Adverse Effect.  Except as set forth on Section 6.2 of the Seller’s Disclosure Schedule, from June 11, 2009 through the date of this Agreement, no Transferred Entity has, and Seller has not in connection with the BGI Business, taken any action that would be prohibited by Sections 6.2(A) through (R), had such terms been applicable during such period (assuming that Seller requested Buyer’s consent in each case therefor).
 

 
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Section 4.15          Compliance .
 
(a)            Seller has made available to Buyer prior to the date of this Agreement correct and complete composite copies of (i) each Uniform Application for Investment Adviser Registration on Form ADV as on file with the SEC as of the date of this Agreement relating to any of the Transferred Entities and including Part II thereof (or a brochure in lieu thereof), reflecting all amendments thereto to the date of this Agreement (each, a “ Form ADV ”), and (ii) any other similar applications, forms and filings that are material to the BGI Business and required to be made by any Transferred Entity under any applicable Law in connection with its business as an investment adviser.  Such applications, forms and filings are in compliance in all material respects with the applicable requirements of the Investment Advisers Act and such other applicable Laws, and Seller, its Affiliates and the Transferred Entities have conducted their respective businesses in compliance in all material respects with applicable requirements of the Investment Advisers Act and such other applicable Laws.
 
(b)            Seller has made available to Buyer prior to the date of this Agreement correct and complete copies of each application on Form 7-R filed since January 1, 2007 relating to any of the Transferred Entities, reflecting all amendments thereto to the date of this Agreement (each, a “ Form 7-R ”).  The Forms 7-R are in material compliance with the applicable requirements of the Commodity Exchange Act and the rules of the National Futures Association, and the Transferred Entities have conducted their respective businesses in compliance in all material respects with applicable requirements of the Commodity Exchange Act and the rules of the National Futures Association.  Each Fund (or the operator thereof) that is exempt from registration (as a commodity pool operator under the Commodity Exchange Act) has filed an appropriate claim of exclusion or exemption to the extent required, and each Fund (or the operator thereof) (x) has filed all applicable documentation with the National Futures Association except to the extent the failure of which to file documentation would not, individually or in the aggregate, be reasonably expected to materially impair the Fund’s ability to conduct its business, and (y) has conducted its business in compliance in all material respects with applicable requirements of the Commodity Exchange Act and the rules of the National Futures Association.  Each Transferred Entity that falls within the definition of commodity trading advisor (“ CTA ”) as defined in the Commodity Exchange Act has either filed an appropriate claim of exemption or has registered as a CTA and has filed all applicable documentation and has conducted (to the extent required to comply with an exemption) its business in compliance in all material respects with applicable requirements of the Commodity Exchange Act and the rules of the National Futures Association.
 
(c)            Each Broker-Dealer is duly registered under the Exchange Act as a broker-dealer with the SEC, and is in compliance in all material respects with the applicable provisions of the Exchange Act, including the net capital requirements and customer protection requirements thereof.  Each Broker-Dealer is a member in good standing with FINRA and in compliance in all material respects with all applicable rules and regulations of FINRA.  Each Broker-Dealer is duly registered as a broker-dealer under, and in compliance in all material respects with, the Laws of all jurisdictions in which it is required to be so registered and each non-U.S. broker dealer has all material Permits and memberships, and operates in compliance in all material respects with all applicable Laws.
 

 
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(d)            Seller has made available to Buyer prior to the date of this Agreement correct and complete copies of each Broker-Dealer’s Uniform Application for Broker-Dealer Registration on Form BD filed since January 1, 2007 and through the date of this Agreement, reflecting all amendments thereto filed with the SEC prior to the date of this Agreement (a “ Form BD ”).  The Form BD of each Broker-Dealer is in compliance in all material respects with the applicable requirements of the Exchange Act.
 
(e)            No Broker-Dealer or any “associated person” of any Broker-Dealer is subject to a “statutory disqualification” as such terms are defined in the Exchange Act (or its equivalent under any applicable state or foreign Law), and there is no investigation pending or, to the Knowledge of Seller threatened against any Transferred Entity, whether formal or informal, that is reasonably likely to result in a statutory disqualification (or its equivalent under any applicable state or foreign Law).
 
(f)            No Seller, Transferred Entity or any of their respective “affiliated persons” (as that term is defined under applicable provisions of the Investment Company Act as interpreted by the SEC or its equivalent under any applicable state or foreign Law) has any express or implied understanding or arrangement that would reasonably be expected to impose an unfair burden on any of the Funds as a result of the transactions contemplated by this Agreement or would in any way make unavailable the benefits of Section 15(f) of the Investment Company Act for those Funds registered under the Investment Company Act for purposes of Section 15(f) of the Investment Company Act, or any similar safe harbors provided by any applicable state or foreign Law, to Seller.
 
(g)            Each Broker-Dealer and any Transferred Entity that is an investment adviser or an entity required to be registered with any Government Entity, has, where required by applicable Law, adopted written policies and procedures that, in each case, are reasonably designed to detect and prevent any material violations under applicable securities Laws.  There has been no material non-compliance by such Persons with respect to the foregoing requirements or their own internal procedures and policies related to the foregoing, other than those which have been satisfactorily remedied or would not, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
 
(h)            US Bank has adopted written policies and procedures that are reasonably designed to detect and prevent any material violations under applicable state and federal banking Laws.  There has been no material non-compliance by US Bank with respect to the foregoing requirements or its own internal procedures and policies related to the foregoing, other than those which have been satisfactorily remedied or are not material to the BGI Business.
 
(i)            Seller and each of the Transferred Entities have filed all regulatory reports, schedules, forms, registrations and other documents that relate to Seller and the Transferred Entities, as applicable, and are material to Seller and the Transferred Entities, as applicable, together with any amendments required to be made with respect thereto, that they were required to file with (i) any applicable domestic or foreign Self-Regulatory Organization, and (ii) all other
 

 
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applicable Government Entities, and have paid all fees and assessments due and payable in connection therewith.
 
(j)            With respect to each Fund for which US Bank acts as a fiduciary under Part 9 of the rules of the Office of the Comptroller of the Currency, US Bank is in compliance in all material respects with Part 9 of the rules of the Office of the Comptroller of the Currency.
 
(k)            US Bank is not subject to, and has not been advised that it is reasonably likely to become subject to, any written order, decree, agreement, memorandum of understanding or similar arrangement with, or a commitment letter or similar submission to, or extraordinary supervisory letter from, or adopted any extraordinary board resolutions at the request of, any Government Entity charged with the supervision or regulation of banks and other trust and depository institutions or otherwise involved with the supervision or regulation of US Bank. 
 
(l)            All interest rate swaps, caps, floors, option agreements, futures and forward Contracts and other similar risk management arrangements and derivative financial instruments, other than arrangements and instruments of a de minimis value, entered into for the account of any Transferred Entity, or for the account of one or more of the Clients, were entered into (i) in accordance with applicable Client guidelines, prospectuses or offering memoranda to the extent entered into for Clients, (ii) in accordance in all material respects with all applicable Laws and (iii) with counterparties as directed by the applicable Client (where the Client so directs), in all cases except where failure to do so would not, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.  None of Parent, its Affiliates or, to the Knowledge of Seller, any other party thereto is in material breach of any of its obligations under any such Contract.
 
(m)            As of the date hereof, none of the Transferred Entities which is required to maintain a certain amount of regulatory capital in accordance with applicable Law has any agreement, arrangement or understanding with any Government Entity to increase its regulatory capital above the amount required to be maintained as of the date of this Agreement.
 
Section 4.16           Assets Under Management; Investment Advisory Activities .
 
(a)            Prior to the execution of this Agreement, Seller has delivered to Buyer a draft, subject to completion and revision, of a list, as of the Base Date (the “ Base Revenue Schedule ”), with respect to each Client of the Transferred Entities of:
 
   (i)           the name of such Client (except as set forth in Section 4.16(a) of the Seller’s Disclosure Schedules);
 
   (ii)           the assets under management of such Client advised by a Transferred Entity as of the Base Date; and
 
   (iii)          the Revenue Run Rate as of the Base Date.
 

 
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(b)            Each Existing Advisory Contract and any amendment, continuance or renewal thereof, in each case, in effect as of the date of this Agreement, (i) has been duly authorized, executed and delivered by a Transferred Entity and (ii) is a valid and legally binding agreement, enforceable against the applicable Transferred Entity and, to the Knowledge of Seller, each other party thereto, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
 
(c)            None of the Transferred Entities, Seller or any other person “associated” (as defined under the Investment Advisers Act or its equivalent under any applicable state or foreign Law) with any Transferred Entity or Seller has been subject to disqualification pursuant to Section 203 of the Investment Advisers Act (or its equivalent under any applicable state or foreign Laws) to serve as an investment adviser or as an associated person of a registered investment adviser, or subject to disqualification to serve as a broker-dealer under any applicable Law unless, in each case, Seller or any such Transferred Entity or associated person has received exemptive relief from the SEC or any other applicable Government Entity, with respect to any such disqualification.  Seller has made available to Buyer, prior to the date of this Agreement, a copy of any exemptive order in respect of any such disqualification.  As of the date of this Agreement, there is no material Litigation pending and served or, to the Knowledge of Seller, threatened against any of the Transferred Entities that would result in any such disqualification.  None of Seller or any of the Transferred Entities or any “affiliated person” (as defined under the Investment Company Act or its equivalent under any applicable state or foreign Law) thereof has been subject to disqualification as an investment adviser or subject to disqualification to serve in any other capacity contemplated by the Investment Company Act (or its equivalent under any applicable state or foreign Law) for any investment company under Sections 9(a) and 9(b) of the Investment Company Act (or its equivalent under any applicable state or foreign Law), unless, in each case, such Person, as applicable, has received, to the Knowledge of Seller, exemptive relief from the SEC or any other applicable Government Entity with respect to any such disqualification.  Seller has made available to Buyer, prior to the date of this Agreement, a copy of any exemptive order or other relief issued by the SEC in respect of any such disqualification.  There is no Litigation pending and served or, to the Knowledge of Seller, threatened against any of the Transferred Entities that would result in any such disqualification.
 
(d)            No Transferred Entity acting as a qualified professional asset manager (a “ QPAM ”) as defined in Department of Labor Class Exemption 84-14 (“ PTE 84-14 ”) prior to the Closing, any affiliate thereof (as defined for purposes of PTE 84-14) or any direct or indirect owner of a 5% or more interest in such Transferred Entity (as determined for purposes of PTE 84-14) has been convicted of or released from imprisonment with respect to any felony or other crime that would prevent such Transferred Entity from qualifying as a QPAM after the Closing.
 
Section 4.17          Funds .
 
(a)             Organization .  Each Fund is, and at all times since its launch date, has been, duly organized, and validly existing and in good standing under the Laws of the jurisdiction of its organization and has, and at all times since January 1, 2005 (or, if later, its launch date) has had,
 
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the requisite power, right and authority to carry on its business as it is now (or was then) being conducted in each jurisdiction where it is organized or listed on an exchange, except where such lack of such power, right or authority would not, individually or in the aggregate, reasonably be expected to be material to such Fund, and, with respect to US Funds, either (i) is not required to register with the SEC as an investment company under the Investment Company Act or (ii) is duly registered with the SEC as an investment company under the Investment Company Act.  Each Fund that is required to be registered under the Laws of any jurisdiction other than the United States is so registered, other than any failure to be so registered that would not, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
 
(b)             Regulation of the Funds .  To the Knowledge of Seller, each Fund is in compliance, and has been operated since January 1, 2005 (or, if later, its launch date), if and to the extent applicable, in all material respects, with all applicable Laws, including, if and to the extent applicable, the Investment Company Act, the Investment Advisers Act, the Securities Act, the Exchange Act, the Code, the National Bank Act, the German Investment Act ( Investmentgesetz ), each as amended, and all applicable state securities Laws and rules, other than, in each case, any non-compliance that would not, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
 
(c)             Compliance .  (i) Each Fund has complied since January 1, 2005 (or, if later, its launch date) and is in compliance in all material respects with its investment policies and restrictions, if any, as such policies and restrictions may be set forth in its offering or plan documents (as they may be amended from time to time) and applicable Laws, if any, and (ii) the value of the Net Assets of each Fund has been determined since January 1, 2005 (or, if later, its launch date) and is being determined using portfolio valuation methods that comply in all material respects with the methods described in its offering or plan documents, if any, and the requirements of any applicable Laws, other than, in each case of (i) and (ii), any non-compliance that would not, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.  To the Knowledge of Seller, there is no Litigation pending or threatened against any Fund.
 
(d)             Fund Financial Statements .  Seller has made available to Buyer prior to the date of this Agreement redacted copies of the financial statements for the most recently completed fiscal year, to the extent that they exist, of each of the top 50 Funds of the BGI Business based on Net Assets as of March 31, 2009 (excluding any Funds of Pension Management for purposes of determining top 50) (the “ Fund Financial Statements ”).  Each of the Fund Financial Statements fairly presents in all material respects the results of operations and changes in Net Assets of each Fund as of the date thereof.
 
(e)             Principal Offering Documents or Written Plans for Funds .  To the extent a prospectus, statement of additional information or offering memorandum (“ Prospectus ”), or, if applicable, a written plan as required by Section 9.18(b)(1) of the rules of the Office of the Comptroller of the Currency (“ Written Plan ”), is used as of the date of this Agreement to offer shares or other interests in a Fund that is one of the top 50 Funds of the BGI Business based on
 

 
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Net Assets as of March 31, 2009, a copy of such Prospectus, or, if applicable, Written Plan, has been made available to Buyer prior to the date of this Agreement.  Each such Prospectus, or, if applicable, Written Plan, has been prepared in accordance with the requirements of applicable Laws in all material respects.  Since January 1, 2005, each Fund has timely filed all material Prospectuses, Written Plans, financial statements, other forms, reports, sales literature, and advertising, and any other documents required to be filed with any applicable Government Entity (the “ Reports ”), except where the failure to timely file a Report would not reasonably be expected to be material to the Transferred Entities, taken as a whole.  The Reports have been prepared in accordance with the requirements of applicable Laws in all material respects.
 
(f)             Fund Shares and Other Interests .  All issued and outstanding Fund shares and other interests have been duly and validly issued, are fully paid and, unless otherwise required by applicable Law, non-assessable, and were not issued in violation of preemptive or similar rights or applicable Law.  All outstanding Fund shares and other interests that were required to be registered under the Securities Act have been sold in all material respects pursuant to an effective registration statement filed thereunder (and, where applicable, under the Investment Company Act) and are qualified in all material respects for sale, or an exemption therefrom is in full force and effect, in each state and territory of the United States and the District of Columbia and in any foreign jurisdiction to the extent required under applicable Law and no such registration statement contained, as of its effective date, any untrue statement of material fact or omitted to state a material fact required to be stated therein, in light of the circumstances in which they were made, in order to make the statements therein not misleading or is subject to any stop order or similar order restricting its use, other than, in each case, any failure to be registered or qualified, any inclusion of an untrue statement of a material fact or any failure to state a material fact that is required to be stated or any order restricting its use that would not, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
 
(g)             Contracts .  No Fund is party to or subject to any material Contract which is in material violation, breach or event of default, or event or condition that, after notice or lapse of time or both, would constitute a material violation, breach or event of default thereunder, on the part of the Fund, or to the Knowledge of Seller, any other Person.  All investment advisory services have been rendered to the Funds pursuant to Contracts that were approved by the boards of the Funds and annually continued in effect by such boards where such approval and annual continuances are required under applicable Law and, to the extent required by applicable Law, the holders of shares of beneficial interest or of common stock in each Fund.
 
(h)             Policies and Procedures .  Each Fund that is registered under the Investment Company Act has written policies and procedures adopted pursuant to Rule 38a-1 of the Investment Company Act that are reasonably designed to prevent material violations of the United States Federal Securities Laws, as such term is defined in Rule 38a-1(e)(1) under the Investment Company Act.  There have been no Material Compliance Matters for any Fund that is registered under the Investment Company Act, as such term is defined in Rule 38a-1(e)(2) under the Investment Company Act, other than those which have been reported to the applicable Fund board and satisfactorily remedied or are in the process of being remedied.  Each Fund that is required to be registered under any other applicable Law has, to the extent required by such other
 

 
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applicable Law, written policies and procedures that are reasonably designed to prevent material violations of such applicable Law, and no such violations have been detected other than those that have been satisfactorily remedied or are in the process of being remedied or would not reasonably be expected to be material to the BGI Business.
 
(i)             Proxy Solicitation Materials .  Except to the extent it relates to Buyer and its Affiliates or includes information provided by Buyer or its Affiliates (to which extent no representation is made), the proxy solicitation materials to be distributed to the shareholders of each Fund prior to the Closing in connection with the Assignment Requirements, if any, will contain all information necessary in order to make the disclosure of information therein satisfy the requirements of applicable Laws in all material respects.
 
(j)             Taxes .  For all taxable years since its inception each Fund has elected to be treated as, and has qualified to be classified as (i) a regulated investment company taxable under Subchapter M of Chapter 1 of the Code and under any similar provisions of state or local Law in any jurisdiction in which such Fund filed, or is required to file, a Tax Return; (ii) a partnership for U.S. federal income tax purposes and any similar provisions of state or local law in any jurisdiction in which such Fund filed or was required to file, a Tax Return; or (iii) a pass through entity or separately taxable entity in the foreign country or countries in which it is organized that qualifies for any special Tax treatment under the Laws of any country or countries for which such entity purports to qualify (which Tax treatment is specified on Section 4.17(j) of the Seller’s Disclosure Schedules), in the case of (i) through (iii) as set forth with respect to each such Fund on Section 4.17(j) of the Seller’s Disclosure Schedules.  Each Fund has (i) duly and timely filed with the appropriate Government Entity all material Tax Returns required to be filed and all such Tax Returns are true, correct and complete in all material respects, (ii) has timely paid, or withheld and paid over, all Taxes due or claimed to be due by any Government Entity or with respect to Taxes not yet due and payable, made an adequate provision on its financial statements in accordance with GAAP, IFRS or other relevant applicable accounting principles, and (iii) is in compliance with all applicable Laws regarding the filing, solicitation, collection and maintenance of any forms, certifications and other information required in connection with federal, state, local or foreign Tax reporting requirements.
 
(k)            So far as the Seller is aware (or ought reasonably to be aware), with respect to each Fund established under the Laws of any jurisdiction of the United Kingdom or resident in the United Kingdom for United Kingdom Tax purposes (each, a “ UK Fund ”) (i) each UK Fund is and, at all material times, has been (w) an authorized investment fund as defined for the purposes of the Authorized Investment Funds (Tax) Regulations 2006 (SI 2006/964), (x) an investment trust as defined in s842 Income and Corporation Taxes Act 1988 or (y) an unauthorized unit trust as defined in Section 989 of the Income Tax Act 2007 or (z) a common investment fund established pursuant to a common investment scheme brought into effect by order of the Charity Commission under Section 24 of the Charities Act of 1993; and (ii) no Government Entity has sought to assert that any UK Fund has or may have failed to qualify as such an authorized investment fund, investment trust, unauthorized unit trust or a common investment fund established pursuant to a common investment scheme brought into effect by order of the Charity Commission under Section 24 of the Charities Act of 1993.
 

 
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(l)            So far as the Seller is aware (or ought reasonably to be aware), no Fund other than a UK Fund is in any way subject to Tax in the United Kingdom (other than Tax required by applicable Law to be deducted at source from payments to the Fund).
 
(m)            The Seller’s Disclosure Schedules contain details of each Fund which intends to be or represents itself to any Person as (i) a “distributing fund” as defined for the purposes of Chapter 5, Part XVII Income and Corporation Taxes Act 1988; or (ii) a “reporting fund” for the purposes as defined for the purposes of regulations to be made under s41 Finance Act 2008 (or under any sections within the group of sections of which s41 Finance Act 2008 forms a part).
 
(n)            None of the Funds is subject to the tax imposed on specified investment flow-through entities under paragraph 122(1)(b) or subsection 197(2) of the Canadian Tax Act, assuming that those provisions applied in respect of the current taxation year; and no Fund that is a trust and that is a non-resident of Canada for purposes of the Canadian Tax Act (determined without reference to Section 94 of the Tax Act) would be deemed to be a resident of Canada under the provisions of Section 94 of the Canadian Tax Act.
 
Section 4.18            Advisory Clients .
 
(a)            (i) All performance information provided, presented or made available by the Transferred Entities to any Advisory Client or potential Advisory Client has complied in all material respects with applicable Laws; (ii) the Transferred Entities maintain all documentation necessary to form the basis for, demonstrate or recreate the calculation of the performance or rate of return of all accounts that are included in a composite (current and historical performance results) as required by applicable Laws; and (iii) any investment performance earned by any Person at a firm other than one of the Transferred Entities and presented by a Transferred Entity as its investment performance has complied in all material respects with applicable Laws and any interpretations thereof by any applicable Government Entity.
 
(b)            Since January 1, 2005, each account of an Advisory Client has been operated in all material respects in compliance with the terms of the relevant Contract under which a Transferred Entity acts as an investment adviser or sub-adviser to, or manages any investment or trading account of, such Advisory Client.
 
(c)            Since January 1, 2005, for each account of any Advisory Client maintained by a Transferred Entity or any Fund, and in both cases only where a Transferred Entity is responsible for pricing, there has existed no material unremedied “out of balance” condition, pricing error or similar condition.
 
(d)            The Transferred Entities that are registered investment advisers have adopted and implemented procedures or practices for the allocation of securities purchased for its Advisory Clients that comply in all material respects with applicable Laws.
 
Section 4.19            ERISA Compliance .  To the extent any Transferred Entity has acted as a fiduciary (within the meaning of ERISA) with respect to the assets of any Client that is (i) an “employee benefit plan” (as defined in Section 3(3) of ERISA) that is subject to Title I of
 

 
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ERISA, (ii) a Person acting on behalf of such a plan or (iii) any Person whose assets are “plan assets” within the meaning of Department of Labor Regulation Section 2510.3-101, such Transferred Entity has acted in compliance with the applicable requirements of ERISA, except for any failure to act in compliance as would not, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.  To the extent any such Transferred Entity has relied upon any statutory or administrative exemption from the prohibited transaction rules of Section 406 of ERISA and Section 4975 of the Code, such Transferred Entity is eligible to rely on such exemption and has satisfied the requirements of such exemption, except for any failure to be so eligible or to so satisfy as would not, individually or in the aggregate, reasonably be expected to be material to the Transferred Entities, taken as a whole.
 
Section 4.20            Absence of Undisclosed Liabilities .  Other than with respect to Taxes (which is covered by Section 4.7 and Section 4.17(j) through (n) of this Agreement) and except as disclosed in the Parent Public Report (to the extent that such disclosure specifically identifies the Transferred Entities or the BGI Business and the qualifying nature of such disclosure is reasonably apparent therefrom and excluding all disclosures in the “Risk Factors” sections and any “forward looking statements”), neither the BGI Business, nor any Transferred Entity is subject to any liabilities (whether known, absolute, accrued, contingent or otherwise) except for (a) liabilities to the extent disclosed or reserved against on the Unaudited Financial Statements, (b) liabilities which were incurred by the Transferred Entities as a result of this Agreement, any Ancillary Agreement or the MSA, (c) liabilities incurred or discharged in the ordinary course prior to December 31, 2008 that were not required to be disclosed in the Unaudited Financial Statements, (d) liabilities incurred or discharged in the ordinary course since December 31, 2008 that, had they been incurred or discharged prior to December 31, 2008, would not have been required to be disclosed in the Unaudited Financial Statements and (e) liabilities incurred or discharged in the ordinary course since December 31, 2008.
 
Section 4.21            Real Property .  As of the date of this Agreement, except for one parcel of real property, none of the Transferred Entities, or, in connection with the BGI Business, Seller, owns any real property or any interest therein other than the leases, subleases, licenses or other Contracts described below in this Section 4.21.  Each parcel of real property in which any Transferred Entity has an interest in (including lease, sublease, license, or occupation) is held under a valid, subsisting and enforceable lease, sublease, license or other Contract, as applicable, by the applicable Transferred Entity, Seller or any Affiliate of Seller with such exceptions that are (i) not material and do not interfere with the use made of such real property by the applicable Transferred Entity, or (ii) not material to the Transferred Entities, taken as whole.  Section 4.21 of the Seller’s Disclosure Schedules sets forth a list of all leased, subleased or licensed real properties that are material to any Transferred Entity (“ Material Leases ”).  Material Leases constitute all material real property leased, subleased, licensed or otherwise used in the operation of the BGI Business as conducted as of the date of this Agreement.  True and correct copies of Material Leases have been delivered or made available to Buyer, together with any amendments, modifications or supplements thereto.  A list of such documents is provided in Section 4.21 of the Seller’s Disclosure Schedule.  There exists no material default or condition, or any state of facts or event which with the passage of time or giving of notice or both would constitute a material default, in the performance of its obligations under Material Leases by Seller or any of
 

 
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its Affiliates or, to the Knowledge of Seller, by any other party to any of such leases.  The Material Leases are in full force and effect.  Except as may be limited by bankruptcy, insolvency, reorganization and similar applicable Laws affecting creditors generally and by the availability of equitable remedies and except in each case for failures that, individually or in the aggregate, would not be material to the BGI Business (a) each of the Material Leases are legal, valid and binding obligations of Seller or an Affiliate of Seller, as applicable, and, to the Knowledge of Seller, each other party to such leases and (b) each of the Material Leases is enforceable against Seller or its Affiliate, as applicable, and, to the Knowledge of Seller, each other party to such lease.  Neither Seller nor any of its Affiliates has received any written communication from the landlord or lessor under any of the Material Leases claiming that it is in breach of its obligations under such leases, except for written communications claiming breaches that, individually or in the aggregate, would not reasonably be expected to be material to the Transferred Entities, taken as a whole.  None of the Transferred Entities, Seller or any Affiliate of Seller have received any written notice regarding, and, to the Knowledge of Seller, there has not been threatened any pending condemnation, eminent domain or similar proceeding with respect to all or a portion of any real property leased, subleased, licensed or otherwise occupied by any Transferred Entity.
 
Section 4.22           No Other Business .  The Transferred Entities do not own any material assets, properties and rights other than those used in connection with the conduct of the BGI Business.
 
Section 4.23            Compliance With Laws .
 
(a)            Except with respect to Taxes (which is specifically provided for in Section 4.7 and Section 6.5), since December 31, 2005, each Transferred Entity has complied in all material respects with, is in compliance in all material respects with and has operated and maintained its businesses in compliance with, in each case in all material respects, all applicable Laws.  No material investigation by any Government Entity with respect to any Transferred Entity is pending or, to the Knowledge of Seller, threatened, and no Government Entity has notified Seller or any Transferred Entity in writing or, to the Knowledge of Seller, orally of its intention to conduct the same.  To the Knowledge of Seller, there is no reasonable basis for any such assertion, except as, individually or in the aggregate, has not had or resulted in or would reasonably be expected to be material to the Transferred Entities, taken as a whole.
 
(b)            To the Knowledge of Seller, except as not prohibited under applicable Law, since December 31, 2007, no Transferred Entity has offered or given anything of value to any official of a Government Entity, any political party or official thereof, or any candidate for political office (i) with the intent of inducing such Person to use such Person’s influence with any Government Entity to affect or influence any act or decision of such Government Entity or to assist the obtaining or retaining of business for, or with, or the directing of business to, any Transferred Entity, or (ii) constituting a bribe, kickback or illegal or improper payment to assist any Transferred Entity in obtaining or retaining business for or with any Government Entity.
 
(c)            Each of Seller, each of Seller’s Subsidiaries and each Fund has filed all material registrations, reports, prospectuses, proxy statements, statements of additional information,
 

 
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financial statements, sales literature, statements, notices and other material filings required to be filed by it with any Government Entity, including all material amendments or supplements to any of the above for the past three years, in each case to the extent related to the BGI Business, except to the extent the failure to file would not, individually or in the aggregate, be reasonably expected to be material to the Transferred Entities, taken as a whole.
 
(d)            Except for routine examinations conducted by any Government Entity in the regular course of the BGI Business and the Funds, as applicable, (i) no Government Entity has initiated any Litigation that is ongoing or unresolved affecting the BGI Business and, to the Knowledge of Seller, no such Litigation is threatened by any Government Entity and (ii) none of the Transferred Entities or the Funds has received any notice or communication (A) of any unresolved violation or exception by any Government Entity with respect to any report or statement by any Government Entity relating to any examination of any Transferred Entity, (B) threatening to revoke or condition the continuation of any Permit or (C) restricting or disqualifying their activities (except for restrictions generally imposed by rule, regulation or administrative policy on similarly regulated Persons generally).
 
Section 4.24            Insurance .  The Transferred Entities maintain, or Seller or one of its Affiliates maintains on behalf of the Transferred Entities, such worker’s compensation, comprehensive property and casualty, liability, errors and omissions, directors’ and officers’, fidelity and other insurance as they may be required to maintain under applicable Laws.  The Transferred Entities have complied in all material respects with the terms and provisions of such policies and bonds.  The Transferred Entities are insured against such losses and risks and in such amounts as are customary in the businesses in which they are engaged.
 
Section 4.25           Board and Stockholder Approval .  The board of directors of Parent, at a meeting duly called and held, and not subsequently rescinded or modified in any way, has duly adopted resolutions (i) approving this Agreement and determining that this Agreement and the transactions contemplated by this Agreement are advisable, fair to and in the best interests of Parent and its shareholders as a whole and (ii) resolving to recommend that Parent’s shareholders vote in favor of the Resolutions at the Parent Shareholders Meeting.  In considering the foregoing resolutions, the directors of Parent took into account their respective statutory and fiduciary obligations.
 
Section 4.26            Finders’ Fees .  There is no investment banker, broker, finder or other intermediary that has been retained by or is authorized to act on behalf of any Transferred Entity who would be entitled to any fee or commission from any Transferred Entity in connection with this Agreement, any of the Ancillary Agreements, the MSA or the transactions contemplated hereunder and thereunder.
 
Section 4.27            Affiliate Arrangements .
 
(a)            Other than ordinary course Contracts, liabilities or obligations that will not survive the Closing or Contracts that by their terms are terminable by either party thereby without penalty upon notice of 60 days or less, and liabilities or obligations expressly contemplated by this Agreement, there is no material Contract, liability or obligation (whether or
 

 
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not evidenced by a writing) between a Transferred Entity, on the one hand, and Seller or any of its Affiliates (other than a Transferred Entity), on the other hand that will remain in effect following the Closing (any such Contract, liability or obligation, a “ BGI Affiliate Arrangement ”).
 
(b)            To the Knowledge of Seller, as of the date hereof, no director, officer or employee of any Transferred Entity: (i) owns, directly or indirectly (other than through an investment in Parent or the Equity Ownership Plan or any public company), any economic or ownership interest in any property or asset, real or personal, tangible or intangible, used in or held for use in connection with the BGI Business or (ii) has received any loans from or is otherwise a debtor of, or made any loans to or is otherwise a creditor of, any Transferred Entity, in each case of (i) and (ii), which could reasonably be expected to impair such Person’s independent judgment.
 
Section 4.28            No Other Representations or Warranties .  Except for the representations and warranties contained in this Agreement (including any certificate or other instrument delivered in connection therewith), neither Seller nor any other Person makes any other express or implied representation or warranty on behalf of Seller relating to the Transferred Entities or the BGI Business.  BUYER ACKNOWLEDGES AND AGREES THAT, EXCEPT IN THE CASE OF FRAUD, SELLER AND ITS AFFILIATES WILL NOT HAVE OR BE SUBJECT TO ANY LIABILITY OR INDEMNIFICATION OBLIGATION TO BUYER OR ANY OF ITS AFFILIATES OR ANY OTHER PERSON RESULTING FROM THE MAKING AVAILABLE OR FAILING TO MAKE AVAILABLE TO BUYER OR ANY OF ITS AFFILIATES, OR ANY USE BY BUYER OR ANY OF ITS AFFILIATES OF, ANY INFORMATION, INCLUDING ANY INFORMATION, DOCUMENTS, PROJECTIONS, FORECASTS OR OTHER MATERIAL MADE AVAILABLE TO BUYER OR ANY OF ITS AFFILIATES IN CERTAIN “DATA ROOMS” OR MANAGEMENT PRESENTATIONS IN EXPECTATION OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, EXCEPT TO THE EXTENT ANY SUCH INFORMATION IS EXPRESSLY INCLUDED IN A REPRESENTATION OR WARRANTY CONTAINED IN THIS AGREEMENT (INCLUDING ANY CERTIFICATES OR OTHER INSTRUMENTS DELIVERED IN CONNECTION THEREWITH).
 
ARTICLE V
 
REPRESENTATIONS AND WARRANTIES RELATING TO BUYER
 
Except as set forth in the Buyer’s Disclosure Schedules, Buyer represents and warrants to Seller as of the date of this Agreement as follows:
 
Section 5.1              Organization and Qualification .  Buyer is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.  Buyer has the requisite corporate power and authority to carry on its business as conducted as of the date of this Agreement and to own, lease and operate all of its properties and assets, in all material respects as conducted, owned, leased or operated as of the date of this Agreement.  Buyer is duly qualified to do business in each jurisdiction in which the nature of its business or the character or
 

 
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location of the properties and assets owned, leased or operated by it makes such qualification necessary other than any failure to be so qualified that, individually or in the aggregate, has not had or resulted in and would not reasonably be expected to be material to Buyer and its Controlled Affiliates, taken as a whole.  The Organizational Documents of Buyer and each of its Controlled Affiliates are in full force and effect and there has been, or will be, no material violation thereof.
 
Section 5.2             Capitalization .  The authorized capital stock of Buyer, (a) as of the date of this Agreement, is 500,000,000 shares of Buyer Common Stock, of which as of June 9, 2009,  48,344,286 were issued and were outstanding, including 911,266 held in escrow and none held in treasury, (b) as of the date of this Agreement, 500,000,000 shares of Buyer Preferred Stock, of which (i) 20,000,000 have been designated as Buyer Series A Preferred Stock, of which zero are issued and outstanding, (ii) 150,000,000 have been designated as Buyer Series B Preferred Stock, of which as of June 9, 2009, 80,341,918 were issued and outstanding, and (iii) as of the date of this Agreement, 6,000,000 have been designated as Buyer Series C Preferred Stock, of which as of June 9, 2009, 2,889,467 shares were issued and outstanding.  From June 9, 2009 through the date of this Agreement, Buyer has not issued any shares of capital stock except pursuant to any exercises or conversions of any Equity Rights in existence on June 9, 2009.  As of the date of this Agreement, all of the outstanding shares of capital stock and other equity interests of Buyer have been duly authorized and are validly issued, fully paid and non-assessable.  Except for the issuance of shares to Seller and its Affiliates pursuant hereto or with respect to the Existing Stockholder Agreements, as of the date of this Agreement, there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character, or any other Equity Rights under which Buyer is or may become obligated to issue or sell, or in any way dispose of, any shares of the capital stock or other equity interests, or any securities or obligations that are exercisable or exchangeable for, or convertible into, any shares of the capital stock or other equity interests, or any other Equity Rights, of Buyer, and no securities or obligations evidencing such rights are authorized, issued or outstanding as of the date of this Agreement.  Except with respect to the Existing Stockholder Agreements, as of the date of this Agreement, the outstanding capital stock and other equity interests of Buyer are not subject to any voting trust agreement or other Contract restricting or otherwise relating to the voting, dividend rights or disposition of such capital stock or other equity interests.  As of the date of this Agreement, there are no phantom stock or similar rights providing economic benefits based, directly or indirectly, on the value or price of the capital stock or other equity interests of Buyer.
 
Section 5.3              Corporate Authorization .
 
(a)            Buyer has full corporate power and authority to execute and deliver this Agreement and each of the Ancillary Agreements to which it is a party, and to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereunder and thereunder.  The execution, delivery and performance by Buyer of this Agreement and each Ancillary Agreement to which it is a party, and each of the transactions contemplated hereunder and thereunder, has been duly and validly authorized, and, except for the Written
 

 
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Consents that were delivered by the Majority Stockholders to Buyer concurrently with the execution of this Agreement, and except for the filing of the Certificate of Designations with the Secretary of State of the State of Delaware, no additional corporate or shareholder authorization or consent is required in connection with the execution, delivery and performance by Buyer of this Agreement and each Ancillary Agreement or any of the transactions contemplated hereunder and thereunder.
 
(b)            The board of directors of Buyer, at a meeting duly called and held, has (i) determined that this Agreement and the Purchase are advisable, fair to, and in the best interests of Buyer and its stockholders, (ii) duly and validly approved and taken all corporate action required to be taken by the board of directors to authorize the consummation of the transactions contemplated by this Agreement and (iii) recommended that the stockholders of Buyer approve the Share Issuance, and none of the aforesaid actions by such board of directors has been amended, rescinded or modified.
 
(c)            Buyer has received the Written Consents, which constitutes the requisite stockholder approval under the applicable rules and regulations of the NYSE and is the only approval of the stockholders of Buyer necessary to approve the Share Issuance and the other transactions contemplated by this Agreement.
 
Section 5.4              Consents and Approvals .  Other than in connection with (a) the HSR Act, the EC Merger Regulation (to the extent required) or any other Antitrust Laws, (b) any rules, regulations and orders of the Office of the Comptroller of the Currency, (c) any applicable banking, securities or other financial services Laws of any banking commissions or any securities or other financial services regulators, (d) the provisions of the Transfer of Undertakings or any other similar Law of any competent jurisdiction, (e) such other Laws, (f) such other approvals that would be required of any newly-formed Person acquiring the Transferred Entities and (g) the filing of the Certificate of Designations with the Secretary of State of the State of Delaware, in each case, that are set forth on Section 5.4 of the Buyer’s Disclosure Schedules (collectively, the “Buyer’s Required Approvals”), Buyer and its Affiliates and, to the Knowledge of Buyer, the Majority Stockholders and their Affiliates are not required to obtain any authorization, waiver, consent or approval of, make any filing or registration with or give any notice to any Government Entity or to obtain any Permit in connection with the execution, delivery and performance by Buyer of this Agreement or each of the Ancillary Agreements to which it is a party or any of the transactions contemplated hereunder or thereunder, other than any authorization, waiver, consent, approval, filing, registration notice or Permit, the failure of which to obtain, make or give would not reasonably be expected, individually or in the aggregate, to impair or delay materially the ability of Buyer to consummate the transactions and perform its obligations, in each case, contemplated hereunder and thereunder or subject Buyer, a Majority Stockholder or any of their respective Affiliates to criminal liability or any other adverse action by any Government Entity that is significant to the Buyer and its Affiliates, taken as a whole, or either of the Majority Stockholders and its Affiliates, each taken as a whole.
 

 
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Section 5.5              Non-Contravention .
 
(a)            The execution, delivery and performance by Buyer of this Agreement and each of the Ancillary Agreements, and the consummation by Buyer of the transactions contemplated hereunder and thereunder, do not and will not, with or without the giving of notice, the lapse of time or both, (i) conflict with or violate any provision of the certificate of incorporation or the bylaws of Buyer, (ii) assuming the receipt of all consents, approvals, waivers and authorizations and the making of the notices and filings (A) referred to in Section 5.4, conflict with, or result in the breach of, or constitute a default under, or result in the termination, Encumbrance, vesting, cancellation, modification or acceleration of any right or obligation of Buyer or any of its Controlled Affiliates under, or result in a loss of any benefit to which Buyer or any of its Controlled Affiliates is entitled under, any Contract or other agreement or instrument, or (iii) assuming the receipt of all consents, approvals, waivers and authorizations and the making of notices and filings (A) referred to in Section 5.4 or (B) required to be received or made by any of the Transferred Entities or by Seller, violate or result in a breach of or constitute a default under any Law to which Buyer or any of its Controlled Affiliates is subject or under any Permit of Buyer or any of its Controlled Affiliates, other than, in the case of clauses (ii) and (iii), any conflict, breach, default, termination, Encumbrance, vesting, cancellation, modification, acceleration or loss that would not, individually or in the aggregate, reasonably be expected to impair or delay materially the ability of Buyer to perform its obligations hereunder or thereunder or subject Buyer or any of its Affiliates to criminal or any other adverse action by any Government Entity that is significant to Buyer and its Affiliates, taken as a whole.
 
(b)            As of the date of this Agreement, no Majority Stockholder or Affiliate thereof is subject to any Law, regulatory actions or administrative action that would, individually or in the aggregate, reasonably be expected to prevent or materially delay the consummation of the transactions contemplated hereby.
 
Section 5.6              Binding Effect .  This Agreement, when executed and delivered by Buyer, and each of the Ancillary Agreements to which Buyer is a party, when executed and delivered by the applicable counterparties thereto, will constitute a valid and legally binding obligation of Buyer, enforceable against Buyer in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
 
Section 5.7              Equity Consideration .  The Equity Consideration and any capital stock issued upon conversion thereof, when issued to Seller pursuant to this Agreement or upon conversion, shall be validly issued, fully paid, non-assessable and free and clear of any Encumbrance (other than restrictions on transfer which arise under applicable securities Laws and other than those arising under the Stockholder Agreement) and shall not have been issued in violation of any preemptive rights.
 
Section 5.8              SEC Matters .
 
(a)            Buyer has filed or furnished, as applicable, on a timely basis all forms, statements, certifications, reports and documents required to be filed, furnished or submitted by it with the
 

 
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SEC under the Exchange Act or the Securities Act since January 1, 2005 (the “ Applicable Date ”) (the forms, statements, reports and documents filed, furnished or submitted since the Applicable Date and those filed or furnished subsequent to the date hereof including any amendments thereto, the “ Buyer SEC Reports ”).  Each of the Buyer SEC Reports, at the time of its filing or being furnished or submitted complied in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Sarbanes-Oxley Act of 2002, and any rules and regulations promulgated thereunder applicable to the Buyer SEC Reports.  As of their respective dates (or, if amended prior to the date of this Agreement, as of the date of such amendment) the Buyer SEC Reports did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading.
 
(b)            Buyer is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of the NYSE.
 
(c)            Buyer has established and maintained disclosure controls and procedures required by Exchange Act Rules 13a-14 and 15d-14, except as disclosed in the Buyer SEC Reports.  Such disclosure controls and procedures are adequate and effective to ensure that information required to be disclosed by Buyer, including information relating to its consolidated Affiliates, is recorded and reported on a timely basis to its chief executive officer and chief financial officer by others within those entities.
 
(d)            Each of the consolidated financial statements of Buyer and its Subsidiaries contained in the Buyer SEC Reports (the “ Buyer Financial Statements ”), together with related schedules and notes, presents fairly in all material respects the financial position of Buyer and its consolidated Subsidiaries at the dates indicated and the statement of operations and stockholders’ equity and cash flows of Buyer and its consolidated Subsidiaries for the periods specified, and said financials have been prepared in accordance with GAAP applied on a consistent basis throughout the periods involved, except as disclosed therein.
 
Section 5.9              Absence of Undisclosed Liabilities .  Except for (a) liabilities to the extent reserved against on the last balance sheet included in the Buyer Financial Statements (the “ Buyer Balance Sheet ”), (b) as set forth in the Buyer SEC Reports (to the extent that the qualifying nature of such disclosure is reasonably apparent therefrom and excluding all disclosures in the “Risk Factors” sections and any “forward-looking statements”), (c) liabilities which were incurred by Buyer as a result of this Agreement or any Ancillary Agreement and (d) liabilities that are incurred since the date of the Buyer Balance Sheet and are consistent in nature, type and amount with any such liabilities regularly incurred in the ordinary course of business consistent with past practice of the Buyer, to the Knowledge of Buyer, Buyer and its Controlled Affiliates do not have any liabilities outside the ordinary course of business which would, individually or in the aggregate, reasonably be expected to have a Buyer Material Adverse Effect.
 
Section 5.10            Absence of Certain Changes .
 
(a)            During the period between the date of the Buyer Balance Sheet and the date of this Agreement, except for any actions taken in connection with any transactions contemplated
 

 
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by this Agreement or any Ancillary Agreement or as set forth in the Buyer SEC Reports (to the extent that the qualifying nature of such disclosure is reasonably apparent therefrom and excluding all disclosures in the “Risk Factors” sections and any “forward looking statements”), each of Buyer and its Controlled Affiliates (a) has in all material respects conducted its business in the ordinary course consistent with past practice and (b) has not taken any action that would be prohibited by the terms of Section 6.3(D), had such terms been applicable during such period.
 
(b)            During the period between the date of the Buyer Balance Sheet and the date of this Agreement, there has not occurred a Buyer Material Adverse Effect.
 
Section 5.11            Financial Capability .  Buyer has, or will have at the Closing, funds sufficient to pay the amounts required to be paid under Article II and to pay all related fees and expenses.
 
Section 5.12            Investment Purpose .  Buyer is acquiring all of the Transferred Equity Interests solely for the purpose of investment and not with a view to, or for sale in connection with, any distribution thereof in violation of the Securities Act.  Buyer acknowledges that the Transferred Equity Interests are not registered under the Securities Act or any other applicable Law, and that the Transferred Equity Interests may not be transferred, sold or otherwise disposed of except pursuant to the registration provisions of the Securities Act or pursuant to an applicable exemption therefrom and pursuant to Laws and regulations of other jurisdictions as applicable.
 
Section 5.13            Investment Advisory Activities .  Neither Buyer nor any other person “associated” (as defined under the Investment Advisers Act or its equivalent under any applicable state or foreign Laws) with Buyer is or has been subject to disqualification pursuant to Section 203 of the Investment Advisers Act (or its equivalent under any applicable state or foreign Laws) to serve as an investment adviser or as an associated person of a registered investment adviser, or subject to disqualification to serve as a broker-dealer under any applicable Law, unless, in each case, Buyer or such associated person, as applicable, has received exemptive relief from the SEC or any other applicable Government Entity with respect to any such disqualification.  Buyer has made available to Seller prior to the date of this Agreement a copy of any exemptive order in respect of any such disqualification.  As of the date of this Agreement, there is no material Litigation pending and served, or, to the Knowledge of Buyer, pending and not served or threatened against Buyer that would result in any such disqualification.  Neither Buyer nor any “affiliated person” (as defined under the Investment Company Act or its equivalent under any applicable state or foreign Law) of Buyer is or has been subject to disqualification as an investment adviser or subject to disqualification to serve in any other capacity contemplated by the Investment Company Act (or its equivalent under any applicable state or foreign Law) for any investment company under Sections 9(a) and 9(b) of the Investment Company Act (or its equivalent under any applicable state or foreign Law), unless, in each case, such person, as applicable, has received, to the Knowledge of Buyer, exemptive relief from the SEC or any other applicable Government Entity with respect to any such disqualification.  Buyer has made available to Seller prior to the date of this Agreement a copy of any exemptive order or other relief in respect of any such disqualification in effect prior to the date of this Agreement.  There is no material Litigation pending and served or, to the Knowledge
 

 
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of Buyer, pending and not served or threatened against Buyer that would result in any such disqualification.  There are no facts or circumstances in relation to Buyer of any of its Subsidiaries or any Person associated with Buyer or any of its Subsidiaries that would, to the Knowledge of Buyer, under applicable Law, (x) prevent any of them from obtaining any consent, registration or approval required in order for Buyer to complete the transactions contemplated by this Agreement or (y) otherwise prevent any of them from controlling or beneficially owning a direct or indirect interest in any of the Transferred Entities.
 
Section 5.14            Information in Proxy .  None of the information supplied or to be supplied by or on behalf of Buyer or its Affiliates specifically for inclusion or incorporation by reference in the proxy solicitation materials to be distributed to the shareholders of each Fund, or otherwise to be provided to investors in connection with the Assignment Requirements will, at the time of the mailing of the proxy statement or any amendments or supplements thereto, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading.
 
Section 5.15            Section 15(f) of the Investment Company Act .  None of Buyer or any of its respective “affiliated persons” (as that term is defined under applicable provisions of the Investment Company Act and interpreted by the SEC) has any express or implied understanding or arrangement which would reasonably be expected to impose an unfair burden on any of the Funds registered under the Investment Company Act for purposes of Section 15(f) of the Investment Company Act as a result of the transactions contemplated hereby or would in any way cause Section 15(f) of the Investment Company Act to be unavailable to Seller.
 
Section 5.16            Filings .  None of the information regarding Buyer or any of its Affiliates supplied or to be supplied by Buyer or any of its Affiliates in writing for inclusion in any application, filing or other document to be filed with any Government Entity in connection with the transactions contemplated by this Agreement will, at the respective times such documents are filed with any such Government Entity, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
 
Section 5.17            Finders’ Fees .  Except for fees that will be paid by Buyer, there is no investment banker, broker, finder or other intermediary that has been retained by or is authorized to act on behalf of Buyer or any of its Affiliates who might be entitled to any fee or commission from Buyer or any of its Affiliates in connection with the transactions contemplated by this Agreement.
 
Section 5.18           Litigation .  As of the date hereof, there is no Litigation pending and served or threatened in writing or, to the Knowledge of Buyer, pending and not served or otherwise threatened, against or affecting Buyer or any of its Affiliates that challenges the validity or enforceability of this Agreement or seeks to enjoin or prohibit consummation of, or seek other material equitable relief with respect to, the transactions contemplated by this Agreement or that
 

 
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would, individually or in the aggregate, reasonably be expected to impair or delay materially the ability of Buyer to perform its obligations hereunder.
 
Section 5.19            Arrangements with PNC and Merrill Lynch .  Except as set forth in the SEC Reports (to the extent that the qualifying nature of such disclosure is reasonably apparent therefrom and excluding all disclosures in the “Risk Factors” sections and any “forward looking statements”), and except for ordinary course transactions within the framework of existing distribution and investment management arrangements, as of the date of this Agreement there is no material Contract, liability or obligation (whether or not evidenced by a writing) between Buyer or any of its Subsidiaries, on the one hand, and PNC or any of its Subsidiaries (other than Buyer and its Affiliates) or Merrill Lynch or Merrill Lynch Group, Inc. or any of their Subsidiaries (other than Buyer and its Affiliates), on the other hand.
 
Section 5.20            No Other Representations or Warranties .  Except for the representations and warranties contained in this Agreement (including any certificate or other instrument delivered in connection therewith), neither Buyer nor any other Person makes any other express or implied representation or warranty on behalf of Buyer relating to Buyer.  EACH OF SELLER AND THE TRANSFERRED ENTITIES ACKNOWLEDGES AND AGREES THAT, EXCEPT IN THE CASE OF FRAUD, BUYER AND ITS AFFILIATES WILL NOT HAVE OR BE SUBJECT TO ANY LIABILITY OR INDEMNIFICATION OBLIGATION TO SELLER OR ANY OF ITS AFFILIATES OR ANY OTHER PERSON RESULTING FROM THE MAKING AVAILABLE OR FAILING TO MAKE AVAILABLE TO SELLER OR ANY OF ITS AFFILIATES, OR ANY USE BY SELLER OR ANY OF ITS AFFILIATES OF, ANY INFORMATION, INCLUDING ANY INFORMATION, DOCUMENTS, PROJECTIONS, FORECASTS OR OTHER MATERIAL MADE AVAILABLE TO SELLER OR ANY OF ITS AFFILIATES IN CERTAIN “DATA ROOMS” OR MANAGEMENT PRESENTATIONS IN EXPECTATION OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, EXCEPT TO THE EXTENT ANY SUCH INFORMATION IS EXPRESSLY INCLUDED IN A REPRESENTATION OR WARRANTY CONTAINED IN THIS AGREEMENT.
 
ARTICLE VI
 
COVENANTS
 
Section 6.1              Access and Information .
 
(a)            From the date of this Agreement until the earlier of the Closing Date or termination of this Agreement in accordance with its terms, subject to the terms of this Section 6.1 and the confidentiality obligations set forth in the Confidentiality Agreement and this Agreement and any applicable Law (including any Antitrust Law) (as determined by Seller in its reasonable discretion in the case of clause (i) below or by Buyer in its reasonable discretion in the case of clause (ii) below), (i) Seller shall and shall cause its Affiliates and Representatives to (A) afford Buyer and its Representatives reasonable access, during regular business hours and upon reasonable advance notice, to the Employees, the Books and Records, the Contracts, the assets and properties of the Transferred Entities and the employees and Representatives of Seller
 

 
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who have knowledge relating directly to the BGI Business, in each case, in order that Buyer and its Representatives shall have the reasonable opportunity to make such investigation as Buyer and its Representatives shall reasonably require in connection with any matters relating to the Transferred Entities and the transactions contemplated by this Agreement, (B) furnish, or cause to be furnished, to Buyer and its Representatives any financial and operating data and other information that is reasonably available to Seller and its Representatives with respect to the Transferred Entities or the BGI Business as Buyer and its Representatives from time to time may reasonably request, (C) instruct the Employees and the employees and Representatives of Seller and its Affiliates who have knowledge relating directly to the BGI Business to cooperate reasonably with Buyer and its Representatives in their investigation of the BGI Business and any matters relating thereto and to the transactions contemplated by this Agreement and (D) cooperate reasonably with Buyer in connection with any approvals, applications, waivers, consents or any other request for information or requirements of any Government Entity to be made, filed or obtained by Buyer, and (ii) Buyer shall and shall cause its Affiliates and Representatives to (A) afford Seller and its Representatives reasonable access, during regular business hours and upon reasonable advance notice, to information relating to Buyer in connection with such investigation as Seller and its Representatives shall reasonably require in connection with any matters relating to the transactions contemplated by this Agreement, (B) furnish, or cause to be furnished, to Seller and its Representatives any financial and operating data and other information that is reasonably available to Buyer and its Representatives with respect to Buyer as Seller and its Representatives from time to time may reasonably request, (C) instruct the employees and Representatives of Buyer and its Affiliates who have knowledge relating to Buyer to cooperate reasonably with Seller and its Representatives in their investigation of Buyer and any matters relating thereto and to the transactions contemplated by this Agreement and (D) cooperate reasonably with Seller in connection with any approvals, applications, waivers, consents or any other request for information or requirements of any Government Entity to be made, filed or obtained by Seller; provided , however , that in no event shall any party have access to any information if allowing that access (x) based on advice of counsel to the party that is providing access, information or cooperation pursuant to this Section 6.1(a) (the “ Providing Party ”), would reasonably be expected to result in the loss of attorney-client privilege ( provided that the Providing Party and its counsel shall use commercially reasonable efforts to enter into such joint defense agreements or other arrangements, as appropriate, so as to allow for such disclosure in a manner that does not result in the loss of attorney client privilege), or (y) would in the reasonable judgment of the Providing Party (A) result in the disclosure of any material trade secrets, unless the applicable information is reasonably necessary for integration purposes and then only if it does not involve the furnishing of information about sensitive fiduciary matters, or (B) violate any obligation of the Providing Party with respect to confidentiality so long as, with respect to confidentiality, the Providing Party has made commercially reasonable efforts to safeguard the confidentiality of any such information and minimize any reasonable concerns in connection therewith including seeking to obtain a waiver regarding the possible disclosure from the third party to whom it owes an obligation of confidentiality; provided , further , that with respect to clauses (x) and (y) of this Section 6.1(a), in the event that any such clauses prevents the providing of information pursuant to this Section 6.1(a), the Providing Party shall use commercially reasonable efforts to develop an alternative to providing such information so as to address such matters that is reasonably
 

 
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acceptable to the receiving party.  All requests for information made pursuant to this Section 6.1(a) shall be directed in writing to an executive officer of Seller or Buyer, as the case may be, or such Person or Persons as may be designated by Seller or Buyer, as the case may be.
 
(b)            Between the date hereof and the earlier of the Closing Date and the date on which this Agreement is terminated in accordance with its terms, subject to the terms of this Section 6.1(b) and the confidentiality obligations set forth in the Confidentiality Agreement and this Agreement and any applicable Law (including any Antitrust Law), Seller shall provide to Buyer on a monthly basis as promptly as they become available (A) copies of all regularly prepared monthly financial statements and reports on the Transferred Entities or the BGI Business, as appropriate, including statements of operations and balance sheets, (B) updates with respect to the obtaining of consents in connection with the transactions contemplated hereby, including such consents contemplated by Section 6.6, Section 6.9 and Section 6.10, (C) an updated Base Revenue Schedule, and (D) a calculation of Closing Revenue Run Rate, Closing Adjustment Revenue Run Rate, Closing Adjustment ETF Revenue Run Rate and the Revenue Run Rate Adjustment Amount as of the end of each month and such supporting documentation relating to the foregoing and the Initial Base Revenue Schedule as Buyer may reasonably request including a schedule with reasonable detail supporting the determinations of each of the elements of the items set forth in clauses (C) and (D) (it being understood that the information provided under clauses (C) and (D) will be provided exclusively pursuant to the procedures previously agreed between the parties).  In addition, subject to applicable Law, Seller shall provide Buyer with access to all Books and Records and personnel reasonably necessary for Buyer’s financial reporting obligation, and Seller shall, at Buyer’s reasonable request, engage appropriate consultants at Buyer’s cost and as Buyer reasonably deems necessary for its financial reporting obligation related to Seller for periods following the Closing.  In the event that the Closing shall be on or prior to December 1, 2009, Seller shall bear all of Buyer’s reasonable out-of-pocket costs in connection with the activities set forth in the preceding sentence (and shall, in such circumstance, refund any amounts previously paid by Buyer).
 
(c)            (i)  Following the Closing Date, to the extent permitted by applicable Law (as determined by Buyer in its reasonable discretion), Buyer shall provide (or cause its Subsidiaries and Representatives to provide) Seller and its Representatives with reasonable access, during regular business hours and upon reasonable advance notice, to the Books and Records and any other documents that Buyer through the Transferred Entities acquires pursuant to this Agreement and access to and the assistance of Buyer’s and the Transferred Entities’ employees and Representatives, in each case, to the extent that such access and assistance is related to any Transferred Entity, UK Holdings, any entity contemplated by Section 6.26(d) and not sold hereby or the BGI Business during the period prior to the Closing Date and otherwise necessary for Seller or its Representatives to comply with the terms of this Agreement, any applicable Law  (including the obligations of Seller and its Affiliates to produce as required by applicable Law accounts, attestations and reports (and contributory internal deliverables in accordance with past practice) in respect of the 2009 financial year (and up to the Closing if later), for which purpose Buyer will use commercially reasonable efforts to retain sufficient appropriately-skilled relevant personnel) or any request of a Government Entity; provided , however , that any such access,
 

 
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review and assistance shall be granted and conducted in such manner as not to interfere unreasonably with the conduct of the business of Buyer or any of its Affiliates.
 
   (ii)          In addition, following the Closing Date, to the extent permitted by applicable Law (as determined by Buyer in its reasonable discretion), Buyer shall provide (or cause its Subsidiaries and Representatives to provide to or cause to provided to) Seller and its Representatives with reasonable access, during regular business hours and upon reasonable advance notice to (x) the records of and related to those funds to which a Cash Fund Support Agreement relates (each, a “ Cash Fund ”) of Buyer and its Subsidiaries for which Seller continues to provide financial support following the Closing and (y) all records and documentation relating to the Guarantees and the securities lending arrangements to which the Guarantees relate (including lending balances, counterparty exposures and collateral) and shall permit Seller and its Representatives access to the Cash Funds and Buyer and its Subsidiaries shall permit Seller to or cause Seller to be permitted to audit whether any payment is due with respect to the Cash Funds or the Guarantees and the amount of any payment due to Seller; provided, however, that any such access shall be granted and conducted in such manner as not to interfere unreasonably with the conduct of the business of Buyer or any of its Affiliates and provided further that such access and information is permitted solely for the purposes of enabling Seller and its relevant Affiliates to perform obligations under or in connection with this Agreement and to report on related exposures internally and externally as reasonably necessary or as required by applicable Law.
 
   (iii)          Notwithstanding anything in this Section 6.1(c) to the contrary, in no event shall Seller or its Representatives have access to any information if allowing that access (x) based on advice of counsel of Buyer, information or cooperation pursuant to this Section 6.1(c), would reasonably be expected to result in the loss of attorney-client privilege ( provided that the Buyer and its counsel shall use commercially reasonable efforts to enter into such joint defense agreements or other arrangements, as appropriate, so as to allow for such disclosure in a manner that does not result in the loss of attorney client privilege) or (y) would in the reasonable judgment of Buyer violate any obligation of Buyer with respect to confidentiality so long as Buyer has made commercially reasonable efforts to obtain a waiver regarding the possible disclosure from the third party to whom it owes an obligation of confidentiality.  Notwithstanding anything in this Agreement to the contrary, Seller shall have the right to access the Books and Records and other documents that Buyer acquires pursuant to this Agreement, even if (A) based on advice of counsel of Buyer, Buyer believes that providing such access pursuant to this Section 6.1(c) would reasonably be expected to result in the loss of attorney-client privilege or (B) Buyer believes that providing such access pursuant to this Section 6.1(c) would violate any of its obligations with respect to confidentiality, in each case of (A) and (B), if Seller or its Affiliates would violate any Law or other requirement of any Government Entity for failing to have such access pursuant to this Section 6.1(c).
 
   (iv)          Seller shall bear any out-of-pocket costs incurred in connection with the provision of such access by Buyer under this Section 6.1(c) following the Closing Date.
 

 
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   (v)          In addition to the other obligations set forth herein, Buyer shall, and shall cause its Representatives to, retain and preserve all of the Books and Records and all other documents that Buyer acquires pursuant to this Agreement in accordance with its customary retention policy.
 
(d)            Buyer undertakes, for a period of five years from the Closing Date, to:
 
   (i)          keep in a safe place and with the same security measures that apply to Buyer’s own secure documentation (which Buyer confirms are appropriate for a comparable business as carried on by Buyer) the Relevant Documentation within its possession to ensure that Relevant Documentation is maintained for a period of five (5) years after the Closing Date;
 
   (ii)          upon written request from the Seller, the Buyer will use commercially reasonable efforts, subject to the capabilities of the Transferred Entities acquired on the Closing Date, to provide the document  or copy of the document within:
 
   (A)            five Business Days for information less than one year old;
 
   (B)            10 Business Days for information between one and three years old; and
 
   (C)            15 Business Days for information between three and five years old.
 
   (iii)         give to Seller a copy of any document included in the Relevant Documentation within five Business Days from the receipt of a written request from Seller.
 
Seller agrees, solely with respect to Buyer’s obligations under this Section 6.1(d) and without affecting any other obligation of Buyer in this Agreement, that it shall only request copies of Relevant Documentation  in connection with a bona fide obligation to respond to a request from a competent, Government Entity to disclose Relevant Documentation, or information included in such Relevant Documentation, and undertakes, provided it is in Seller’s reasonable opinion practicable and permitted by Law, to provide evidence of such request in a form reasonably satisfactory to Buyer at the time the request for the Relevant Documentation is made (and, if it is not practicable or permitted, shall instead provide a certificate signed on behalf of Seller confirming that such request is in response to a bona fide regulatory, governmental, legal or judicial requirement).  Seller shall reimburse Buyer for all reasonable out of pocket costs incurred as a result of the need to comply with the requirements in this paragraph which are in excess of what Buyer would otherwise have incurred.  Without prejudice to Buyer’s obligation to maintain appropriate security measures pursuant to clause (i), nothing herein shall require Buyer to create, alter or modify any of its information technology systems in order to comply with this Section 6.1(d); it being understood that the foregoing shall not affect Buyer’s obligation to maintain Relevant Documentation for five years.
 
(e)            Notwithstanding anything in this Agreement to the contrary, (except for Section 6.1(d)(i)) Seller shall be permitted to retain duplicate copies of the Books and Records and any other documents of or otherwise relating to the Transferred Entities or the BGI Business
 

 
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for legal and record keeping purposes; it being understood that any information retained by Seller pursuant to this Section 6.1(e) shall be subject to Section 6.18(a) (Confidentiality).
 
(f)            Promptly following receipt of applicable clearances under applicable Antitrust Laws or the expiration of any applicable waiting period under applicable Antitrust Laws, Seller shall use reasonable best efforts to provide to Buyer an unredacted list of all Contracts entered into by Seller or its Subsidiaries and in effect on the date of this Agreement (i) that would have been included in Section 4.13(a) of the Seller’s Disclosure Schedules if any $10,000,000 threshold therein had been $2,500,000, (ii) that constitute index licenses and Investment Advisory Arrangements, in each case, that is reasonably expected to provide for payments by or to the Transferred Entities in excess of $2,500,000 in 2009, (iii) that are index licenses containing change of control provisions or (iv) for which a description is provided under Section 4.13(e) or Section 4.13(f) of the Seller’s Disclosure Schedules.
 
Section 6.2             Conduct of Business of the Transferred Entities .  Except as set forth in Section 6.2 and Section 6.26 of the Seller’s Disclosure Schedules, during the period from the date of this Agreement to and through the earlier of the Closing Date and the termination of this Agreement in accordance with its terms, except as otherwise expressly contemplated by this Agreement, as required by any applicable Law, in connection with the termination of the Existing Reimbursement Agreements and any settlement of any recorded balance of the liability to Seller or any of its Affiliates (other than the Transferred Entities) for the derivatives and guarantees related to the Cash Fund Support Agreements (and any other cash fund support agreements referred to therein) and the Existing Reimbursement Agreements, or as Buyer shall otherwise consent in writing (which consent shall not be unreasonably withheld, conditioned or delayed), Seller shall cause each Transferred Entity to (a) conduct its business in the ordinary course of business in all material respects consistent with past practice and (b) use commercially reasonable efforts to (i) preserve intact its business and operations, retain present officers and preserve its material rights, franchises, goodwill and relationships with the Funds (including the boards of directors and shareholders thereof), any applicable Government Entity and its Advisory Clients and other material clients, customers, lessors, suppliers and others with whom it does business, and (ii) keep available the services of the Employees.  Except as set forth in Section 6.2 and Section 6.26 of the Seller’s Disclosure Schedules, during the period from the date of this Agreement to and through the Closing Date, except as otherwise expressly contemplated by this Agreement, as required by any applicable Law, in connection with the termination of the Existing Reimbursement Agreements and any settlement of any recorded balance of the liability to Seller or any of its Affiliates (other than the Transferred Entities) for the derivatives and guarantees related to the Cash Fund Support Agreements (and any other cash fund support agreements referred to therein) and the Existing Reimbursement Agreements, or as Buyer shall otherwise consent in writing (which consent shall not be unreasonably withheld, conditioned or delayed), Seller shall not, and shall cause the Transferred Entities not to, without limiting the generality of the foregoing, do any of the following with respect to any of the Transferred Entities:
 
   (A)            other than in the ordinary course of business consistent with past practice, incur, create or assume any Encumbrance on any of the properties or assets,
 

 
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tangible or intangible, that are material to any Transferred Entity, other than a Permitted Encumbrance;
 
   (B)            sell, lease, license (other than ordinary course intellectual property licenses), transfer, pledge, convey, assign, mortgage or otherwise dispose of any material properties or assets, tangible or intangible, of any Transferred Entity, other than obsolete or non-used assets or rights or as otherwise permitted by this Section 6.2 or with a fair market value not in excess of $10,000,000 in the aggregate;
 
   (C)            other than transactions between or among Transferred Entities or Seller and any Transferred Entity, issue, sell, deliver, pledge, transfer, dispose of or encumber (i) any equity interests or capital stock of or other equity or voting interest in any Transferred Entity, or (ii) any Equity Rights in respect of, security convertible into, exchangeable for or evidencing the right to subscribe for or acquire either any securities convertible into or exchangeable for, or evidencing the right to subscribe for or acquire, any shares of the capital stock of, or other equity or voting interest in, any Transferred Entity (it being understood that Buyer may withhold its consent for any reason with respect to any such issuance, sale, delivery, pledge, transfer or disposition to a third party or with respect to any such Encumbrance);
 
   (D)            other than in the ordinary course of business, amend, cancel, waive, modify or otherwise dispose of or permit to lapse any rights in any material Intellectual Property used in connection with the BGI Business, other than such Intellectual Property that is no longer used in connection with the BGI Business;
 
   (E)            except in the ordinary course of business or as required by the terms of any Benefit and Compensation Arrangement in effect as of the date of this Agreement and listed on Section 4.8(a) of the Seller’s Disclosure Schedules, (i) increase or decrease the compensation (including bonus opportunity) of any of the Employees or any independent contractor, (ii) pay or agree to pay or increase or agree to increase any pension, welfare, retirement allowance, severance or other employee benefit not already required or provided for under any existing plan, agreement or arrangement to any Employee or independent contractor, (iii) hire any person to become an Employee or individual independent contractor of the Transferred Entities with annual compensation in excess of $750,000, (iv) amend, terminate, or adopt any Benefit and Compensation Arrangement, (other than any amendment, termination or adoption that does not impact any of the Employees or that relates to the Bank UK Retirement Fund) or convert a Benefit and Compensation Arrangement into an Assumed Benefit and Compensation Arrangement or establish or enter into any new employment, change in control or severance agreements, arrangements, plans or policies for the benefit of or with any Employee, (v) terminate any Employee with annual compensation in excess of $1,000,000 except under circumstances that constitute cause or terminate the employment of 20 or more Employees in the United Kingdom or Germany, or (vi) grant or agree to grant or accelerate the time of vesting or payment of awards held by any of the Employees under any Benefit and Compensation Arrangement;
 

 
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   (F)            pay, discharge, settle or satisfy any claims, actions, arbitrations, disputes or other proceedings (absolute, accrued, asserted or unasserted, contingent or otherwise) (i) with a value greater than $10,000,000 or (ii) that would result in any Transferred Entity being enjoined in any respect materially adverse to their business as conducted as of the date of this Agreement;
 
   (G)            other than as set forth in Section 6.2(G) of the Seller’s Disclosure Schedule:  (i) make or rescind any material election relating to Taxes of, or change any taxable year of, any Transferred Entity; (ii) amend in any material way a Tax Return of any Transferred Entity; (iii) settle or compromise any material tax liability of any Transferred Entity; or (iv) make any material change in any method of accounting, keeping of books of account or accounting practices or in any material method of Tax accounting of any Transferred Entity, unless required by applicable accounting standards or applicable Law;
 
   (H)            make or incur any capital expenditures requiring payments in excess of $10,000,000 in the aggregate in any 3 month period;
 
   (I)            (i) other than in the ordinary course of business consistent with past practice, enter into any Contract between Seller or any of its Affiliates (other than a Transferred Entity), on the one hand; and any Transferred Entity, on the other hand or (ii) enter into a Contract containing a “most favored nation” provision which could reasonably be expected to be applicable to Buyer and its Affiliates (excluding the Transferred Entities) following the Closing or amend any existing Contract in a manner to provide that a “most favored nation” provision contained therein would have a similar effect;
 
   (J)            amend in any material respect any provision of Organizational Document of any Transferred Entity or of any term of any outstanding security issued by any Transferred Entity;
 
   (K)            (i) acquire any business that would be included in the Transferred Entities by merger or consolidation, purchase of substantial assets or equity interests, or by any other manner, in a transaction or series of related transactions, or enter into any Contract, letter of intent or similar arrangement (whether or not enforceable) with respect to the foregoing or (ii) with respect to any Transferred Entity, adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization;
 
   (L)            other than in the diligent prosecution of its rights, institute any action or proceeding or assert any claim regarding, or enter into any settlement regarding, any material Intellectual Property owned by any of the Transferred Entities;
 
   (M)            other than in the ordinary course of business, reduce the amount of insurance coverage or fail to renew any existing insurance policies that, in each case, is material to the Transferred Entities, taken as a whole;
 

 
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   (N)            other than with respect to Indebtedness that will remain outstanding following the Closing, incur, assume or guarantee (including by way of any agreement to “keep well” or of any similar arrangement) or cancel or waive any claims under any Indebtedness or other claims or rights of substantial value or amend or modify the terms relating to any such Indebtedness, claims or rights, except for any such incurrences, assumptions or guarantee of Indebtedness or amendments of the terms of such Indebtedness in the ordinary course of business consistent with past practices involving an aggregate amount not exceeding $10,000,000;
 
   (O)            form, organize or sponsor any Fund not contemplated by or consistent with the current business plan of any Transferred Entity;
 
   (P)            materially amend, terminate or allow to lapse any material Permit relating to the businesses of the Transferred Entities, other than amendments required by applicable Law or other than as consistent with the current business plan;
 
   (Q)            take any action that would prevent any Fund which is required to be registered with the SEC or comparable regulatory or self-regulatory authority of any jurisdiction as a pooled investment vehicle from qualifying as a “regulated investment company” under Section 851 of the Code or comparable pass-through regime in any other applicable jurisdiction to the extent such status is intended in such Fund’s constituent documents or marketing materials; or
 
   (R)            authorize or enter into any Contract or commitment with respect to any of the foregoing.
 
Section 6.3              Conduct of Business of Buyer .  Except as set forth in Section 6.3 of the Buyer’s Disclosure Schedules, during the period from the date of this Agreement to and through the earlier of the Closing Date and the termination of this Agreement in accordance with its terms, except as otherwise contemplated by this Agreement, as required by any applicable Law or as Seller shall otherwise consent in writing (which consent shall not be unreasonably withheld, conditioned or delayed), Buyer shall conduct its businesses in the ordinary course of business in all material respects.  Except as set forth in Section 6.3 of the Buyer’s Disclosure Schedules, during the period from the date of this Agreement to and through the Closing Date, except as otherwise contemplated by this Agreement, as required by any applicable Law or as Seller shall otherwise consent in writing which consent shall not be unreasonably withheld, conditioned or delayed, Buyer shall not, and shall cause its Controlled Affiliates not to, do any of the following:
 
   (A)            other than dividends not in excess of $0.86 per share per quarter, make any distribution (whether in cash, stock, Equity Rights or property) or declare, pay or set aside any dividend with respect to, or split, combine, redeem, reclassify, purchase or otherwise acquire directly, or indirectly, any equity interest or shares of capital stock of, or other equity or voting or non-voting interest in Buyer or make any other changes in the capital structure of Buyer;
 

 
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   (B)            issue, sell, deliver, pledge, transfer, dispose of or encumber any equity interest or capital stock of or other equity or voting interest in Buyer or any Equity Rights of Buyer, other than issuances of Equity Rights to employees in the ordinary course of business consistent with past practice pursuant to Buyer’s equity compensation plans, issuances of Buyer Common Stock and Buyer Preferred Stock upon conversion or exercise of any convertible security, option or other Equity Right outstanding as of June 9, 2009 and other than issuances of Buyer Common Stock or Buyer Series B Preferred Stock at a price (net of any underwriting or distribution discount or commission) not lower than the lowest closing market price of the Buyer Common Stock on the NYSE during the five trading days immediately prior to the date on which Buyer agrees to a binding agreement to effect such transaction;
 
   (C)            amend or modify any Existing Stockholder Agreement, or terminate any Existing Stockholder Agreement, or waive any rights, claims or obligations under or relating to any Existing Stockholder Agreement;
 
   (D)            amend in any material respect any provision of Buyer’s Organizational Documents in a manner that would adversely affect the benefits, economic or otherwise, of the transactions contemplated by this Agreement to Seller;
 
   (E)            merge or consolidate with any Person or adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization, but (other than with respect to a liquidation or dissolution) only to the extent any such action or actions would be reasonably likely to prevent, materially delay or impair the consummation of the transactions contemplated hereunder;
 
   (F)            enter into any acquisition agreement, or make any acquisition, that is reasonably likely to prevent, materially delay or impair the consummation of the transactions contemplated hereunder; or
 
   (G)            authorize or enter into any Contract or commitment with respect to any of the foregoing.
 
Section 6.4              Reasonable Best Efforts .
 
(a)            (i) Seller and Buyer shall cooperate and shall, and Seller shall cause each of the Transferred Entities to, and Buyer shall cause its Affiliates to, and Buyer shall use its reasonable best efforts to cause the Majority Stockholders to, use their respective reasonable best efforts to take or cause to be taken all actions, and do or cause to be done all things, reasonably necessary, proper or advisable on their respective parts under this Agreement and applicable Laws to consummate and make effective the transactions contemplated by this Agreement as promptly as reasonably practicable, including, (x) preparing and filing as promptly as reasonably practicable all documentation to effect all necessary notices, reports and other filings and to obtain as promptly as reasonably practicable all consents, registrations, approvals, waivers, orders, interpretive guidance, exemptions, permits and authorizations necessary or advisable to be obtained from any third party and/or any Government Entity in order to consummate the
 
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transactions contemplated by this Agreement, and (y) taking all actions reasonably necessary in order to comply with or satisfy the requirements of any applicable Law or other requirements of any Government Entity that would prevent the consummation of the transactions contemplated by this Agreement by the Termination Date; provided , however , that Buyer shall not, and shall cause its Affiliates not to, make any filing for any such notice, report or filing in respect of consents, registrations, approvals, waivers, orders, interpretive guidance, exemptions, permits and authorizations with respect to any antitrust or merger filings, or initiate any communications with any Government Entity with respect to any antitrust or merger filings, without Buyer’s first consulting with Seller in order to give Seller a reasonable opportunity to comment on the content of any merger filing relevant to the transaction contemplated under this Agreements in order to present the best case for unconditional clearance of the transaction  before a merger filing is submitted to a Government Entity.  Without limiting the generality of the foregoing, each of Buyer and Seller shall, and Seller shall cause the Transferred Entities to, and Buyer shall cause its Affiliates, and Buyer shall use its reasonable best efforts to cause the Majority Stockholders to, make as promptly as reasonably practicable all filings and submissions required under any applicable Law in connection with this Agreement and the transactions contemplated by this Agreement, and file promptly any additional information requested under any applicable Law in connection with this Agreement and the transactions contemplated by this Agreement, after receipt of the request therefor.
 
   (ii)          Notwithstanding the obligations in this Section 6.4 to the contrary, in connection with obtaining the approval of any Government Entity to the Closing, neither Buyer nor any of its Affiliates and neither Seller nor any of its Affiliates shall be required to (A) sell, divest, hold separate, or otherwise dispose of any of its or their respective businesses, properties or assets, (B) conduct its or their businesses in a specified manner or (C) agree to take any of the actions set forth in clause (i)(y) or (ii)(A) or (ii)(B) above that would, in the case of Buyer, result in any Buyer Regulatory Impediments or, in the case of Seller, result in any Seller Regulatory Impediments.
 
   (iii)          If the Parties become aware of the existence of an approval of a Government Entity that is not set forth on Exhibit F or Exhibit G or any Law that is reasonably expected to prevent the Closing they shall consult and reasonably cooperate with one another in connection with determining a mutually acceptable manner of dealing with any related Property and assets, and, subject to the standards set forth in (ii) above, take all reasonable action in connection therewith, including by agreeing on appropriate risk sharing.
 
   (iv)          Notwithstanding anything set forth in this Agreement to the contrary, Buyer shall take all actions necessary to eliminate prior to the Termination Date any Buyer Regulatory Impediment (or any element of clause (i) thereof that would prevent the consummation of the transactions contemplated by this Agreement by the Termination Date) arising from or reasonably likely to be imposed in connection with Buyer’s sale of capital stock and Equity Rights to strategic investors.
 
(b)            Seller, on the one hand, and Buyer, on the other hand, shall, upon request by the other, furnish the other with all information concerning itself, its Subsidiaries, Affiliates,
 

 
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associates, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with the preparation of any prospectus, proxy statement or any other statement, filing, notice or application made to any third party and/or any Government Entity in connection with the transactions contemplated by this Agreement.
 
(c)            Except as prohibited by applicable Law and except as prohibited by any Government Entity, Seller and Buyer shall keep each other apprised of the status of matters relating to completion of the transactions contemplated by this Agreement, including promptly furnishing the other with copies of notices or other communications received by such party, or any of its Affiliates, and in the case of Buyer any notices or other communications received by a Majority Stockholder and furnished to Buyer, from any third party and/or any Government Entity with respect to the transactions contemplated by this Agreement, except, (i) in the case of, Seller, Seller may redact any portion of such notices or other communications related to any business of Seller and its Affiliates other than those conducted by the Transferred Entities, and (ii) in the case of Buyer, Buyer may redact any portion of such notices or other communication related to anything that is not related to such transactions.  None of the parties shall permit any of its respective officers or any other Representatives or agents to participate in any meeting with any Government Entity in respect of any filings, investigation or other inquiry relating to the transactions contemplated by this Agreement unless it gives prior notice and consults with the other party in advance and, to the extent permitted by such Government Entity, gives the other party the opportunity to attend and participate thereat.  The parties shall consult and reasonably cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party in connection with all meetings, actions and proceedings under or relating to any Laws in connection with the transactions contemplated by this Agreement (including, with respect to making a particular filing, by providing copies of all such documents to the non-filing party and their Representatives prior to filing and, if requested, giving due consideration to all reasonable additions, deletions or changes suggested in connection therewith, except in each case (x) that Seller shall not be so required to the extent that any of the foregoing related to any business of Seller and its Affiliates other than those conducted by the Transferred Entities and (y) that Buyer shall not be so required to the extent that any of the foregoing do not relate in any manner whatsoever to the transactions contemplated by this Agreement).
 
Section 6.5              Tax Matters .
 
(a)             (i)   Seller Liability for Taxes; Seller Tax Indemnity .  Seller shall be liable for:  (i) any and all Taxes and Losses related to Taxes of, or relating to the ownership, operation or conduct of the business or activities of, the Transferred Entities or their respective assets for any Tax year or portion thereof ending on or prior to the Closing Date with respect to such Transferred Entities; (ii) any and all Taxes of any Person (other than a Transferred Entity) for which any Transferred Entity is liable under Treas. Reg. Section 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise, to the extent arising from or as a consequence of agreements, arrangements, or circumstances existing on or prior to the Closing Date; (iii) any and all Taxes and Losses related to Taxes (A) for which a UK Entity or Australian Entity is secondarily liable as a result of having been a
 

 
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member of a group or connected with, controlled by, controlling, or under common control with any Person other than the Buyer or its Affiliates for any Tax purpose prior to the Closing Date with respect to such UK Entity or Australian Entity or (B) arising in connection with any award made or any benefit, asset or right provided on or prior to the Closing Date with respect to the relevant Transferred Entities to any officer or employee or other Person in connection with any employment or office with respect to such Transferred Entity save to the extent that (i) Buyer or the relevant Transferred Entity is entitled to recover the relevant Taxes from an Employee under the terms of such award, benefit, asset or right and (ii) Seller has timely provided all the information which it is required to provide under Section 6.5(o) and (iii) Buyer has failed to take steps that are commercially reasonable in the circumstances to enforce that recovery; or (iv) any and all Taxes and Losses relating to Taxes of or relating to the Transferred Entities or the assets of any of them that arise as a result of entering into this Agreement or the Closing, provided that Seller shall have no liability under this Section 6.5(a) to the extent of the amount of Tax provisions recorded pursuant to the requirements of FIN 48 or similar accounting requirements or standards (with respect to Delaware Holdings and its direct and indirect Subsidiaries that are Transferred Entities (the "US Bank Group"), as such provision is determined with reference to the US Bank Group taken as a whole, and with respect to the Transferred Entities other than the US Bank Group, as such provision is determined in the aggregate) that can be identified as included in the calculation of Closing Net Working Capital, the Closing Regulatory Capital Requirement or the Closing Regulatory Cash Requirement and, without duplication, in relation to any Tax or Loss related to a Tax to the extent that such Tax or Loss can be identified as included in the calculation of Closing Net Working Capital, the Closing Regulatory Capital Requirement or the Closing Regulatory Cash Requirement.
 
   (ii)           VAT indemnity .  Seller shall be liable for and shall pay (or cause to be paid) and jointly and severally indemnify, defend (subject to Annex 6.5) and hold harmless, (in each case, without duplication) Buyer or any relevant Affiliate of Buyer (including, without limitation, a Transferred Entity) (each, for the purposes of the remainder of this Section 6.5(a) and Annex 6.5, a “ Buyer Indemnified Party ”) from, against and in respect of any Losses actually imposed on, sustained, incurred or suffered by, that Buyer Indemnified Party which directly or indirectly relate to or arise out of, or result from any action, suit, claim, hearing, proceeding, procedure or other application:
 
 
(1)
against that Buyer Indemnified Party; or
 
 
(2)
in relation to Input Tax;
 
in each case that is in respect of, arises out of or results from, or otherwise in connection with, an amount of, or purporting to be, VAT having on or prior to the Closing Date been charged, or accounted for to a VAT Authority, on a Relevant Supply; provided that Seller shall have no liability under this Section 6.5(a)(ii) in relation to any such Loss to the extent that such Loss can be identified as included in the calculation of Closing Net Working Capital, the Closing Regulatory Capital Requirement or the Closing Regulatory Cash Requirement.
 

 
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   (iii)          Seller shall not be liable to make a payment under Section 6.5(a)(ii) above to the extent that the action, suit, claim, hearing, proceeding, procedure or other application against the Buyer Indemnified Party (or in relation to Input Tax) in question is an action, suit, claim, hearing, proceeding, procedure or other application:
 
 
(1)
brought by a Person who has no remedy available to them under relevant applicable Law in respect of such action, suit, claim, hearing, proceeding, procedure or other application or the subject thereof, provided that (x) Seller and Buyer agree in writing, acting reasonably and in good faith, that such Person has no such remedy, or (y) to the extent that Seller and Buyer cannot so agree, a mutually agreeable Queen’s Counsel (or equivalent in any jurisdiction other than the United Kingdom) of at least ten years’ call has opined, upon full disclosure of the relevant facts and circumstances, that such Person has no such remedy; or
 
 
(2)
brought by a VAT Authority in relation to Input Tax and the amount of the subject of such action, suit, claim, hearing, proceeding, procedure or other application has been, is or is to be taken into account in reducing the amount of any Refund Payment made or to be made by that VAT Authority (whether to Parent, Seller, Buyer or any Affiliate of any of them, including, without limitation, a Transferred Entity) (but, for the avoidance of doubt, this Section 6.5(a)(iii)(2) shall not reduce or exclude any amount due from Seller under Section 6.5(a)(ii) to indemnify any Buyer Indemnified Party from, against and in respect of any payment to any Person other than a VAT Authority).
 
   (iv)          Buyer will not, and will procure that no Buyer Affiliate will, do anything or fail to do anything:
 
 
(1)
effecting or the effect of which failure is a change in status (including, without limitation, dissolution, winding up, insolvency, merger, reorganization, transferring, ceasing to carry on all business or not being a taxable person (or not being a member of a VAT Group) for VAT purposes) of any Transferred Entity; or
 
 
(2)
taking any action vis-à-vis a Government Entity in breach of paragraph 1.2(vi) of Annex 6.5 with the intent or effect of decreasing or extinguishing a Refund Payment,
 

 
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in each case, which would result in any Refund Payment not being made (or a lesser amount of Refund Payment being made), whether to Parent, Seller, Buyer or any Affiliate of any of them (including, without limitation, a Transferred Entity), by a VAT Authority which (or than) would have been made had such thing not been done or been done (as the case may be).  Seller shall not be liable to make a payment under Section 6.5(a)(ii) above to the extent that such breach reduces or extinguishes a Refund Payment which would have been made had such thing not been done or been done as the case may be.
 
   (v)          The quantum of any amount payable by Seller under Section 6.5(a)(ii) in relation to or otherwise in connection with any Relevant Supply shall be reduced by the amount of any Refund Payment made to Buyer or any Affiliate of Buyer (including, without limitation, a Transferred Entity) by a VAT Authority in respect of such Relevant Supply.  Where an amount has been paid by Seller under Section 6.5(a)(ii) in relation to or otherwise in connection with, a Relevant Supply, and any Refund Payment in respect of that Relevant Supply is subsequently made to any Buyer Indemnified Party by a VAT Authority, whether by way of refund, credit or repayment or otherwise, Buyer shall promptly following receipt by such Buyer Indemnified Party of such Refund Payment pay to Seller an amount equal to the lesser of such Refund Payment and the payment made by Seller in relation to or otherwise in connection with that Relevant Supply and Buyer shall ensure that any excess of such Refund Payment is paid to the Person to whom the Relevant Supply was made, which payment shall not give rise to any claim or further claim against Seller under Section 6.5(a)(ii) (but only to the extent of the amount of that payment).
 
   (vi)          Notwithstanding any other provision of this Agreement, where any Refund Payment is made to any Buyer Indemnified Party by a VAT Authority, whether by way of refund, credit or repayment or otherwise, Buyer shall, subject to paragraph 1.2(vii) of Annex 6.5, promptly following both determination of the apportionment of such Refund Payment amongst Persons to whom the Relevant Supplies to which the Refund Payment relates were made and receipt by such Buyer Indemnified Party of such Refund Payment pay an amount equal to such Refund Payment to such Persons in accordance with such apportionment.
 
   (vii)         Where any Refund Payment is made by a VAT Authority to Parent or Seller or any Seller Affiliate, rather than to a Buyer Indemnified Party, whether by way of refund, credit or repayment or otherwise, in respect of any Relevant Supply, the parties shall consult and co-operate with each other and, subject to paragraph 1.2(vii) of Annex 6.5, enter into such arrangements (in each case, acting reasonably and in good faith) as will result in such payment, following determination of the apportionment of such Refund Payment amongst Persons to whom the Relevant Supplies to which the Refund Payment relates were made, being promptly passed, whether directly or indirectly, to such Persons in accordance with such apportionment, and the quantum of the amount payable under Section 6.5(a)(ii) in relation to or otherwise in connection with such Relevant Supplies, shall be reduced accordingly by the amount that is passed to such Persons in accordance with such apportionment.
 
   (viii)        All amounts payable or to be paid under Section 6.5(a)(i) (the “ Tax Indemnity Payments ”) shall be paid in immediately available funds within five (5) Business
 

 
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Days after the later of (x) receipt of a written request from Buyer and (y) the day of payment of the amount that gives rise to the Tax Indemnity Payment.  Any late payments shall accrue interest at the Applicable Rate.
 
   (ix)          All amounts which are payable or to be paid under Section 6.5(a)(ii) (the “ VAT Indemnity Payments ”) shall be paid in immediately available funds within five (5) Business Days after the later of (x) receipt of a written request from Buyer under Section 6.5(a)(xii) and (y) the day on which the action, suit, claim, hearing, proceeding, procedure or other application to which the VAT Indemnity Payment relates is settled, compromised, or abandoned in accordance with the provisions of this Agreement.  Any late payments shall accrue interest at the Applicable Rate.
 
   (x)           Notwithstanding any other provision of this Agreement to the contrary, the obligations set forth in Section 6.5(a)(i) shall (x) be unconditional and absolute and (y) remain in full force and effect indefinitely.
 
   (xi)          Notwithstanding any other provision of this Agreement to the contrary, the obligations set forth in Section 6.5(a)(ii) shall (x) be unconditional and absolute, and (y) remain in full force and effect, provided that Seller shall have no liability under Section 6.5(a)(ii) unless written notice of the liability (stating in reasonable detail the nature of the liability and the amount claimed) has been given to the Seller before the date falling the earlier of fifteen (15) years after the Closing Date and six (6) years after the date that the final judicial ruling or other final judicial determination resulting in a change in the VAT treatment of Relevant Supplies is delivered or otherwise made.
 
   (xii)         Buyer shall notify Seller in writing of any action, suit, claim, proceeding, procedure or other application which may lead to a payment by Seller under Section 6.5(a)(ii) promptly on becoming aware of the same (except to the extent that Seller was aware of the same on or before the Closing Date).
 
   (xiii)        Buyer shall and shall procure that each relevant Buyer Indemnified Party shall use commercially reasonable efforts to mitigate any Losses which may give rise to an obligation on Seller to make a payment under Section 6.5(a)(ii).
 
(b)             Buyer Liability for Taxes .  Subject to Section 6.5(a) above, Section 6.5(c) and Section 6.5(e) below, Buyer shall be liable for (A) all Taxes imposed on the Transferred Entities for any taxable year or period that begins after the Closing Date with respect to such Transferred Entities, and, with respect to any taxable year or period beginning before and ending after the Closing with respect to such Transferred Entities, the portion of such taxable year beginning after the Closing Date with respect to such Transferred Entities, (B) all Taxes imposed in respect of transactions occurring or income, profits or gains earned, accrued or received (or treated for Tax purposes as earned, accrued or received) not in the ordinary course of business on the Closing Date but after the relevant Transferred Entity has been transferred other than Taxes arising as a result of or in connection with (x) transactions contemplated by Section 6.26 of the Seller Disclosure Schedule, or (y) the transfer of the relevant Transferred Entity or (z) any action required to be taken under this Agreement, (C) Taxes of Seller incurred in connection with the
 

 
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issuance and purchase of the Mexico Note as provided in Article II to the extent such Taxes exceed the Taxes that would have been incurred by Seller in connection with the purchase of Mexico Company by Buyer (or the Buyer Affiliate that acquired Mexico Company at the Closing) for an amount of the Cash Consideration equal to the stated principal amount of the Mexico Note, and (D) all liabilities for Taxes to the extent of the amount of Tax provisions recorded pursuant to the requirements of FIN 48 or similar accounting requirements or standards (with respect to the US Bank Group, as such provision is determined with reference to the US Bank Group taken as a whole, and with respect to the Transferred Entities other than the US Bank Group, as such provision is determined in the aggregate) that can be identified as included in the calculation of Closing Net Working Capital, the Closing Regulatory Capital Requirement or the Closing Regulatory Cash Requirement and, without duplication, in relation to any Tax or Loss related to a Tax to the extent that such Tax or Loss can be identified as included in the calculation of Closing Net Working Capital, the Closing Regulatory Capital Requirement or the Closing Regulatory Cash Requirement.
 
(c)             Proration of Taxes .  Subject to Section 6.5(f)(x), to the extent necessary to determine the liability for Taxes for a portion of a taxable year or period that begins before and ends after the Closing Date, the determination of the Taxes for the portion of the year or period ending on, and the portion of the year or period beginning after, the Closing Date shall, in a reasonable manner, be determined by assuming that the taxable year or period ended as of the close of business on the Closing Date, except that real, personal and intangible property Taxes and other Taxes the liability for which cannot be determined fairly by such method and exemptions, allowances or deductions that are calculated on an annual or paid basis (including depreciation and amortization deductions) shall be allocated between the period ending on the Closing Date and the period beginning after the Closing Date in proportion to the number of days in each period.
 
(d)             Tax Returns .
 
   (i)           Seller shall prepare and file or cause to be prepared and filed when due all Tax Returns that are required to be filed by or with respect to all Transferred Entities for taxable years or periods ending on or before the Closing Date with respect to such Transferred Entities and all consolidated, combined, unitary or similar group Tax Returns with respect to periods that include the Closing Date and that include a Transferred Entity for such period but with respect to which a Transferred Entity does not have primary responsibility for filing.  Such Tax Returns shall be prepared in a manner consistent with Seller’s past practice in respect of the Transferred Entities.  Seller shall remit any Tax Returns described in the preceding sentence together with all documentation upon which such Tax Returns are based (provided that, to the extent that any such Tax Return relates to VAT in respect of any Transferred Entity which is a member of a VAT Group with Seller or one of its Affiliates (or its activities) and is a consolidated, combined or unitary Tax Return relating to VAT, Seller shall not be required to provide to Buyer any documentation relating solely to Persons other than Transferred Entities and to the extent that any such Tax Return or documentation relates to both Transferred Entities and Persons other than Transferred Entities, Seller shall (where practicable) provide a redacted version of such Tax Return or documentation containing information relating solely to Transferred Entities) to Buyer
 

 
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not later than 45 Business Days (or, in the case of Tax Returns relating to VAT, such shorter time that is as early as reasonably practicable) before the applicable due date (including extensions) of such Tax Returns for its review and comment, which Buyer shall complete not later than 30 Business Days before the applicable due date of such Tax Returns (or, in the case of Tax Returns relating to VAT, 5 Business Days after receipt thereof from Seller).  If, upon expiration of Buyer’s period of review set forth in the preceding sentence, the parties disagree as to any item reflected on such Tax Return, Seller’s original proposal shall become final, provided that if Buyer reasonably believes that, (x) in the case of an item in a Tax Return being made for U.S. Tax purposes such item is not supported by “substantial authority” (as defined in Treasury Regulation Section 1.6662-4(d)(2)); or (y) in all other cases such item is not supported by sufficient authority for a filing to be made in the appropriate jurisdiction without risk of penalty under the relevant Tax Law, the item shall be submitted for resolution pursuant to the procedures set forth in Section 6.5(d)(ii).  Seller shall timely pay to Buyer an amount equal to any Taxes for which Seller is liable pursuant to Section 6.5(a) (but which are payable with Tax Returns to be filed by Buyer pursuant to the preceding sentence).  With respect to Tax Returns described in this Section 6.5(d)(i), and subject to the limitations set forth in this Section 6.5(d) Buyer shall cooperate with Seller in filing such Tax Returns, including causing the Transferred Entities to sign and file such Tax Returns, provided that such cooperation shall not include the taking, or causing to be taken, any action inconsistent with, or in violation of, Law.  Buyer and Seller shall cause an election to be made under subsection 256(9) of the Canadian Tax Act with the result that the current taxation years for Transferred Entities governed by the Canadian Tax Act will be deemed to end upon the Closing.
 
For the purposes of this Section 6.5(d)(i) and Section 6.5(h)(iii), references to Tax Returns required to be filed by or with respect to a Transferred Entity (or its activities) shall include, where the relevant Transferred Entity is or has been a member of a VAT Group with any Seller Affiliate at any time prior to the Closing Date with respect to that Transferred Entity, references to Tax Returns relating to VAT which are required to be filed by the representative member of the relevant VAT Group.
 
   (ii)           Buyer shall prepare and file or cause to be prepared and filed when due all Tax Returns that are required to be filed by or with respect to all Transferred Entities for taxable years or periods beginning on or after and ending after the Closing Date with respect to such Transferred Entities and shall remit any Taxes due in respect of such Tax Returns.  With respect to Tax Returns in respect of taxable years or periods beginning before the Closing Date and ending after the Closing Date, Buyer shall prepare and file or cause to be prepared and filed such Tax Returns (other than any such Tax Return relating to VAT in respect of any Transferred Entity which is a member of a VAT Group with Seller or one of its Affiliates (or its activities) and which is a consolidated, combined or unitary Tax Return relating to VAT which shall, for the avoidance of doubt, be prepared and filed in accordance with the provisions of Section 6.5(h)(iii)) in a manner consistent with Seller’s past practice in respect of the Transferred Entities, to the extent such past practice is not clearly inconsistent with Law, and Buyer shall remit any Tax Returns described in the preceding sentence to Seller not later than 45 Business Days before the applicable due date (including extensions) of such Tax Returns for its review and approval (not to be unreasonably withheld or delayed) not later than 30 Business Days
 

 
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before the applicable due date of such Tax Returns. If, upon expiration of Seller’s period of review set forth in the preceding sentence, the parties disagree as to any item for which Seller’s approval is required, the parties shall promptly submit the item to a mutually acceptable internationally recognized accounting or law firm for final resolution, such resolution to be completed (where possible) 5 days prior to the applicable due date (including extensions) for filing such Tax Return.  The determination of such accounting or law firm shall be binding upon the parties.  Seller shall timely pay to Buyer an amount equal to any Taxes for which Seller is liable pursuant to Section 6.5(a)(i) (but which are payable with Tax Returns to be filed by Buyer pursuant to the second preceding sentence).
 
(e)             Transfer Taxes .
 
   (i)            All federal, state, provincial, local or foreign or other excise, sales, use, transfer (including real property transfer or gains Taxes, but excluding non-resident capital gains and similar Taxes), stamp, documentary, filing, recordation and other similar taxes and fees that may be imposed or assessed as a result of the transactions contemplated by this Agreement, together with any interest, additions or penalties with respect thereto and any interest in respect of such additions or penalties (“ Transfer Taxes ”), shall be borne equally by Seller on the one hand, and Buyer on the other hand.  Any Tax Returns that must be filed in connection with Transfer Taxes shall be prepared by the party primarily or customarily responsible under Applicable Local Law for filing such Tax Returns, and such party shall use its reasonable best efforts to provide such Tax Returns to the other party at least 10 Business Days prior to the date such Tax Returns are due to be filed.  Buyer and Seller shall cooperate in the timely completion and filing of all such Tax Returns.  Any Transfer Taxes resulting from any subsequent increase in the Purchase Price, as adjusted pursuant to the terms of this Agreement, shall be borne in accordance with the provisions of this Section 6.5(e).
 
(f)             Tax Sharing Agreements .
 
   (i)           Except as provided in this Section 6.5(f) and in Section 6.5(h)(ii) below, with effect for periods beginning after the Closing, Seller and its Affiliates shall terminate any and all Contracts with respect to any of the Transferred Entities relating to sharing, allocation or indemnification of Taxes (other than this Agreement or any other such Contract to which only Transferred Entities are parties), and with effect for periods beginning after the Closing Date, no Transferred Entity shall have any rights or obligations under any such agreement or arrangement or other similar Contract.  Buyer agrees that, if requested by Seller, UK Services shall, to the extent permitted by law, surrender group relief under Chapter IV of Part X of the Income and Corporation Taxes Act 1988 (UK) (“ Group Relief ”) for no consideration to Seller or its Affiliates in respect of Seller’s Portion of any UK Tax losses that both:
 
 
(1)
are attributable to Accrued Compensation Liabilities (as defined in Section 6.12(h)) with respect to employees of UK Services or to payments or other benefits provided to employees of UK Services pursuant to a Benefit and
 

 
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(2)
Compensation Arrangement other than an Assumed Benefit and Compensation Arrangement; and
 
arise to UK Services in the accounting period in which Closing occurs (for the purposes of this Section 6.5(f), the “ relevant period ”),
 
such losses meeting (1) and (2), “ EOP Tax Losses ”.  It is anticipated that the Accrued Compensation Liabilities, payments or other benefits referred to in (1) above will be funded by the issue of shares by Barclays Global Investors UK Holdings Limited.  Where the Buyer or its Affiliates fund Accrued Compensation Liabilities, payments or other  benefits referred to in (1) above that give rise to EOP Tax Losses, EOP Tax Losses for which surrender may be required by the Seller under this section 6.5(f)(i) shall be the lower of the time apportioned fraction of the EOP Tax Losses for the Seller's Portion (as defined in Section 6.5(f)(x) below) and the fraction of the EOP Tax Losses the cost or expense of which is not funded by Buyer or its Affiliates (including, after Closing, the Transferred Entities); provided that UK Services shall not be required to make any balancing payment to Seller or its Affiliates under Schedule 28AA to the Income and Corporation Taxes Act 1988 in relation to that period or any part of it in respect of any provision relating to any Accrued Compensation Liabilities (as defined in Section 6.12(h)) with respect to employees of UK Services or to payments or other benefits provided to employees of UK Services pursuant to a Benefit and Compensation Arrangement.
 
   (ii)          Buyer will, and will procure that UK Services will, not take any voluntary steps that have the effect of reducing the amount of the EOP Tax Loss available for surrender and, without limitation, will not make claims to carry such EOP Tax Losses to another period or to surrender them other than in accordance with Section 6.5(f).  For the avoidance of doubt, "voluntary steps" shall not include any act or omission which is required by law or by any provision of this Agreement or which is requested by Seller or any of its Affiliates or to which Seller has consented in writing.
 
   (iii)          Subject to the following provisions of this Section 6.5(f), Buyer shall have the right (exercisable at its discretion) to procure the surrender by UK Entities to Seller or its Affiliates of (and if Buyer exercises its right under this Section 6.5(f)(iii), Seller shall, or shall procure that one or more Affiliates of Seller shall, claim) any UK Tax losses (“ Tax Losses ”) arising to a UK Entity to the extent permitted by law for the relevant period, save to the extent that the Tax Losses in question are surrendered for no consideration under Section 6.5(f)(i).
 
   (iv)          Section 6.5(f)(iii) shall not apply to the extent that a Tax Loss can be surrendered to another UK Entity (or could have been so surrendered had the surrendering company and the claimant company made such claims and given such consents as would have been necessary to give effect to such surrender and not made claims to carry back losses from accounting periods beginning after Closing so as to prevent or displace Group Relief claims).
 

 
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   (v)          Seller shall notify Buyer of the identity of Seller's relevant Affiliates for the purposes of this Section in writing not later than 20 Business Days before the applicable due date of the Tax Return of the UK Entity for the relevant period.
 
   (vi)          Without prejudice to the generality of Section 6.5(f)(iii) above, Buyer shall procure that the relevant UK  Entity shall, and Seller shall procure that each of its relevant Affiliates shall, make such claims (or provisional claims) and give such consents to surrender or accept the surrender of Group Relief which Buyer and Seller consider reasonably necessary in relation to any claim or surrender to be made under this Section 6.5(f).
 
   (vii)         If a UK Entity surrenders Group Relief to the Seller or an Affiliate of the Seller in respect of the relevant period pursuant to Section 6.5(f)(iii) and:
 
 
(1)
the Tax Loss in question is reflected in either the amount of Closing Actual Capital that is used to meet the Closing Regulatory Capital Requirement or the computation of Closing Net Working Capital, or
 
 
(2)
the cost or expense giving rise to the Tax Loss is paid or funded by the Buyer or its Affiliates (including by any Transferred Entity after Closing), but only to the extent that such cost or expense exceeds the amount of Tax Losses the cost or expense of which is not paid or funded by the Buyer or its Affiliates (including any Transferred Entity after Closing) and which are allocated to the Buyer's Portion under section 6.5(f)(x) below,
 
Seller shall procure that Seller or the relevant Affiliate of Seller shall pay to the relevant UK  Entity an amount equal to 28% of the amount surrendered by way of Group Relief.  Payment under this Section 6.5(f)(vii) shall be due on the date or dates on which the Tax saved by the Group Relief in question would otherwise have been payable (assuming that no application for postponement of payment of the Tax had been made) or, if later, the date upon which consent to accept the surrender of Group Relief is given by Seller or the relevant Affiliate of Seller; provided, that in the case of a Tax Loss within paragraph (2) above, total profits of Seller and its Affiliates shall be calculated after taking into account all other Reliefs available to Seller and its Affiliates.
 
   (viii)         If Seller or an Affiliate of Seller has made a payment to a UK Entity in respect of a surrender of Group Relief and it is finally determined that the actual amount of the Tax Losses eligible for surrender by that UK Entity is smaller than the amount in respect of which the payment was made by Seller or the relevant Affiliate of Seller (as the case may be), Buyer shall procure that the relevant UK Entity pays to Seller (on its behalf or on behalf of its relevant Affiliate) an amount equal to 28% of the amount by which the Tax Losses are finally determined to have been reduced.
 

 
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   (ix)          For the avoidance of doubt, Section 6.5(f)(viii) shall not apply to the extent that Group Relief is available for surrender to that Affiliate in respect of the relevant period by another UK Entity, is so surrendered, and HM Revenue & Customs accepts that such claim to Group Relief is valid.
 
   (x)          Notwithstanding anything to the contrary in this Agreement, for the purposes of this Section 6.5(f), Tax Losses made and Reliefs arising in the relevant period shall be allocated between the beginning of that period up to and including the Closing Date (the “ Seller’s Portion ”) and from immediately after the Closing Date up to the end of that period (the “ Buyer’s Portion ”) in proportion to the number of months in each period.
 
(g)             Purchase Price Allocation .
 
   (i)           Seller and Buyer shall allocate the Purchase Price among the Transferred Entities for all Tax purposes in accordance with this Section 6.5(g).  None of Seller or Buyer (nor any of their respective Affiliates) shall file any Tax Return or take a position with a Government Entity that is inconsistent with the allocation as determined below (the “ Allocation ”), including any amendments, except (i) as provided in a “determination” (within the meaning of Section 1313(a) of the Code or any similar state, local or foreign Tax provision) and (ii) to the extent required by applicable Law for the purposes of the United Kingdom stamp duty.
 
   (ii)           Buyer shall present a draft of the allocation (the “ Proposed Allocation ”) to Seller for review within 100 days after the date hereof.  Except as provided in subparagraphs (A) and (B) below, at the close of business on the date of Closing, the Proposed Allocation shall become binding upon Buyer and Seller and shall be the Allocation.
 
   (A)            Seller shall consent to the Proposed Allocation, or raise any objection to the Proposed Allocation, in writing within 30 days of the delivery of the Proposed Allocation.  If Seller presents an objection to any part of the Proposed Allocation within such time period, Buyer and Seller shall negotiate in good faith to resolve any such objection within 30 days after delivery of any such objection by Seller.  If, after consideration of such objections of Seller, Buyer and Seller reach written agreement amending the Proposed Allocation, the Proposed Allocation, as amended by such written agreement, shall become binding upon Buyer and Seller and their Affiliates and shall be the Allocation.
 
   (B)            If Buyer and Seller cannot resolve any objection raised by Seller with respect to the Proposed Allocation within the 30-day time limit set forth in paragraph (A), the parties shall promptly submit the item to a mutually acceptable internationally recognized accounting or law firm for final resolution, such resolution to be reflected in the Allocation.
 
   (C)            Subject to the foregoing paragraphs (A) and (B), the Cash Purchase Price, Buyer Common Stock and Buyer Series B Preferred Stock shall be allocated to each of the Transferred Entities in a manner consistent with a Schedule which shall be prepared by Buyer and furnished to Seller for Seller’s consent within 15
 

 
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days following final resolution of the Allocation hereunder, such consent by Seller not to be unreasonably withheld.
 
   (iii)          In the event that there is any adjustment to the Purchase Price, Buyer shall revise the Allocation to reflect any such adjustment using the same methodology as used in the initial Allocation and shall promptly present a draft of such revised Allocation to Seller for review; provided that the principles contained in paragraphs (ii)(A) and (B) above (including the right of Seller to raise any reasonable objection to the proposed revised Allocation) shall apply to such revised Allocation.
 
(h)             VAT .
 
   (i)           All consideration provided under this Agreement shall be inclusive of VAT.  No amounts shall be required to be paid or otherwise provided in respect of VAT in addition to such consideration.
 
   (ii)          Where any Transferred Entity is a member of a group or fiscal unity for VAT purposes (a “ VAT Group ”) with Seller or one of its Affiliates, Seller shall as soon as reasonably practicable make (or procure that its relevant Affiliate makes) an application for the exclusion of such Transferred Entity with effect from the day after the Closing Date from such VAT Group, and Seller and Buyer shall give each other all such reasonable assistance and cooperation as shall be necessary for the purpose of supporting such application.  Seller shall further give all such reasonable assistance and cooperation as shall be necessary for the purpose of supporting any application which Buyer wishes to make to any Government Entity in connection with the registration of any Transferred Entity as part of a VAT Group with any Affiliate of Buyer with effect from the day after the Closing Date or such later date as may be the earliest which the relevant Government Entity shall permit.
 
   (iii)          Seller shall ensure that any liability to VAT of any Transferred Entity which is a member of a VAT Group with Seller or one of its Affiliates for any relevant taxable year or period beginning on or before the Closing Date and ending after the Closing Date is included in the VAT Group return of Seller or any of its Affiliates in a manner consistent with Seller’s past practice in respect of the relevant Transferred Entity.  If any such Transferred Entity does not leave the VAT Group of which it was a member immediately before the Closing Date with effect from the day after the Closing Date, then in relation to the Stub Period:  (A) Buyer shall give Seller all assistance and co-operation as is reasonably necessary to enable the representative member of the relevant VAT Group to comply with its VAT obligations; (B) Seller shall remit any Tax Returns relating to VAT in respect of the Stub Period, together with all documentation upon which such Tax Returns are based, to Buyer as early as reasonably practicable before the applicable due date (including extensions) of such Tax Returns for its review and comment, which Buyer shall complete not later than 5 Business Days after receipt thereof from Seller provided that (i) if, upon expiration of Buyer’s period of review, the parties disagree as to any item reflected on such Tax Return, the parties shall promptly submit the item to a mutually acceptable internationally recognized accounting or law firm for final resolution, such resolution to be completed (where possible) 5 days prior to the applicable due date
 

 
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(including extensions) for filing such Tax Return, failing which (x) Seller shall procure that such Tax Return is filed as prepared by it (and reflecting any changes agreed to by the parties) by the applicable due date and (y) Seller shall procure that an amended Tax Return is filed, if necessary, after completion of the dispute resolution process, and (ii) Seller shall not be required to provide to Buyer any documentation relating solely to persons other than Transferred Entities and to the extent that any such Tax Return or documentation relates to both Transferred Entities and Persons other than Transferred Entities, Seller shall (where practicable) provide a redacted version of such Tax Return or documentation containing information relating solely to Transferred Entities; (C) Buyer shall procure that the relevant Transferred Entity shall pay to the representative member of the relevant VAT Group an amount equal to such proportion of any VAT (if any) for which the representative member of the relevant VAT Group is accountable as is attributable to supplies, deemed supplies, acquisitions and importations made by or to (or which would have been treated for VAT purposes, if the relevant Transferred Entity was registered for VAT in its own name, as having been made by or to) the relevant Transferred Entity, after taking into account such amount of Input Tax as is properly attributable to such supplies, deemed supplies, acquisitions or importations (except to the extent that the relevant Transferred Entity has already been paid or otherwise compensated for such amount), such payment to be made no later than three Business Days before the representative member of the relevant VAT Group accounts to the relevant Government Entity for such VAT; and (D) to the extent that the representative member of the relevant VAT Group obtains a refund (by way of credit or repayment) from any Government Entity in respect of VAT which has been incurred (or which would have been treated for VAT purposes, if the relevant Transferred Entity was registered for VAT in its own name, as having been incurred) by any Transferred Entity (and has not been reimbursed or otherwise compensated by any Seller Affiliate) and which is properly attributable to any such supply, deemed supply, acquisition or importation, Seller shall procure that the representative member of the relevant VAT Group shall pay to the relevant Transferred Entity an amount equal to such VAT, such payment to be made on the day on which the representative member submits the VAT return claiming the refund (where the refund is by way of credit only) and five Business Days after it obtains the repayment (where the refund is by way of repayment only or both credit and repayment), provided that no payment shall be required to the extent that such VAT has been taken into account in any payment made by Buyer under (C) above.
 
   (iv)          The provisions of Annex 6.5 shall apply.
 
(i)             Contest Provisions .
 
  Each of Buyer and Seller shall promptly notify the other in writing upon receipt of notice of any pending or threatened audits or assessments with respect to Taxes for which such other party (or any such other party’s Affiliates) may be liable under this Agreement.  Seller, at its expense, shall control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period ending on or before the Closing Date, including responding to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expense; provided , however , that if a settlement or compromise of any such audit or proceeding would be
 

 
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reasonably likely to increase the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer shall be entitled, at its expense, to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent, which consent shall not be unreasonably withheld or delayed.  Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided , however , that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed.  With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i).
 
(j)             Buyer’s Claiming, Receiving or Using of Refunds and Overpayments .  If, after the Closing Date, Buyer or any of its Affiliates (including any of the Transferred Entities) receives any refund or applies, as a credit against a payment of Tax, any overpayment of Taxes which, in each case, relates to a Tax that (i) has been paid by Seller or any of its Affiliates or (ii) has been the subject of an indemnification payment made by Seller under this Agreement and which can be identified by Seller as not collected in a Refund Intercompany Loan, Buyer shall, in accordance with this Section 6.5(j), promptly cause to be transferred to Seller the entire amount of such refund or benefit, in each case, net of any Tax cost or detriment suffered by Buyer or any of its Affiliates (including any of the Transferred Entities) (by way of increased Taxes, decreased deductions or otherwise) in respect of such receipt or use.  Notwithstanding anything in this Section 6.5(j) to the contrary, Seller shall not be entitled to any payment for any refund received by Buyer or any of its Affiliates (including any of the Transferred Entities) or any benefit of any overpayment of Taxes that Buyer or any of its Affiliates (including any of the Transferred Entities) is entitled to use to the extent that the assets constituting the overpayment of Taxes by Seller or any of its Affiliates are included in the amount of Closing Actual Capital that is used to meet the Closing Regulatory Capital Requirement or is included in the computation of Closing Net Working Capital.
 
(k)             Assistance and Cooperation .
 
   (i)           After the Closing Date, each party shall reasonably cooperate with the other in preparing for any audits of, or disputes with Government Entities regarding, any Tax Returns and payments in respect thereof for which the other party or any of its Affiliates may have a liability under this Agreement.  Each party shall (A) provide timely notice to the other party in writing of any pending or proposed audits or assessments with respect to Taxes for which such other party or any of its Affiliates may have a liability under this Agreement and (B) furnish the other party with copies of all relevant correspondence received from any Government
 

 
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Entities in connection with any audit or information request with respect to any Taxes referred to in (A).  Additionally, after the Closing Date, Buyer shall reasonably cooperate with Seller in connection with Seller’s right to receive the Tax benefits that are set forth in Section 6.5(j).
 
   (ii)           After the Closing, (A) Buyer shall, and shall cause the Transferred Entities to, take such action as Seller reasonably requests to reduce or eliminate the Taxes of Transferred Entities for which Seller is liable under Section 6.5(a) or Section 8.2 by the transfer of Tax liabilities to Seller or any of its Affiliates or the transfer of Relief by Seller or any of its Affiliates to the Transferred Entities provided, in each case that such action does not and is not likely to result in any increased Tax or other cost to the Buyer or any of its Affiliates and (B) Buyer shall not, and shall cause the Transferred Entities not to, take any action that increases Seller’s liability under Section 6.5(a) or Section 8.2, other than any action required by applicable Law, any action otherwise contemplated under this Section 6.5(l) requested by Seller or any of its affiliates, any action required of Buyer pursuant to this agreement or any action required by any agreement or arrangement entered into in connection with the transactions contemplated by this Agreement prior to the Closing.  Seller shall not be liable under Section 6.5(a) or Section 8.2 in respect of any liability would not have arisen or which would have been reduced or eliminated but for failure of Buyer to act in accordance with this Section 6.5(k).
 
   (iii)          Buyer undertakes (at the reasonable cost of Seller, such cost not to include management time incurred by Buyer or any of its Affiliates) to provide Seller with such information as Seller may reasonably request information to enable Seller to satisfy any obligations to make deductions or recoveries and for Seller to account within appropriate time limits for any amounts payable to a Tax authority in connection with any Benefit and Compensation Arrangement.
 
   (iv)          Parent and Seller shall, and shall procure that each of their Affiliates shall, provide Buyer or its Representatives with access to and (at the reasonable cost of Buyer, such cost not to include manager time incurred by Seller or any of its Affiliates) copies of such Books and Records under the control of Parent, Seller or their Affiliates as the Buyer reasonably requires in connection with the Tax affairs (including, without limitation, the preparation of Tax Returns) of Buyer or any of its Affiliates.
 
(l)             Maintenance of Buyer’s Books and Records .  Any other provision of this Agreement notwithstanding, (i) until the applicable statute of limitations (including periods of waiver) has run for any Tax Returns filed or required to be filed covering the periods up to and including the Closing Date, Buyer shall, and shall cause the Transferred Entities to, retain all of the Books and Records and any other documents relating to Taxes with respect to the Transferred Entities for periods on or before the Closing Date, which Books and Records and other documents were in existence on the Closing Date, (ii) after the Closing Date, Buyer shall provide Seller with access to such Books and Records and such other documents for inspection by Seller or any of its Representatives upon reasonable request and upon reasonable notice, and (iii) prior to the expiration of the period specified in clause (i) above, Seller may request that Buyer transfer such Books and Records, or copies thereof, to Seller promptly after the later to occur of (x) the expiration of the period specified in clause (i) above and (y) the date upon which
 

 
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the internal recordkeeping requirements of the Buyer or the Transferred Entity would otherwise provide for the destruction of such Books and Records, any costs of transferring or copying such Books and Records and such other documents to be paid by Seller; provided , however , that, in each case, Seller shall not be entitled to access any Tax Returns of Buyer, and Seller shall not be allowed to access any information that Buyer, in its sole discretion, deems to be confidential.
 
(m)             Section 338 Election .  Buyer may, at its sole discretion, make the election provided under §338(g) of the Code with respect to any of the Foreign Transferred Entities.
 
(n)              Certain Information Requirements .  Seller undertakes to (i) promptly provide Buyer with such information (to the extent that Seller or its Affiliates have such information within their control) as Buyer may reasonably request in connection with any Benefit and Compensation Arrangement and (ii) promptly notify Buyer of the occurrence of any event of which Seller or its Affiliates is aware in relation to any award made or benefit, asset or right provided pursuant to any Benefit and Compensation Arrangement as would, in each of (i) and (ii), enable or require Buyer and its Affiliates to satisfy any obligations imposed by Law or under any Benefit and Compensation Arrangement (including, making deductions or recoveries and accounting for any amounts payable to a Tax authority), in each case within appropriate time limits and without incurring interest or penalties. Seller shall use all commercially reasonable endeavors to procure that the Transferred Entities have established adequate reporting procedures prior to Closing and maintained records to enable such deductions and recoveries to be made and to enable the relevant Transferred Entity to account for amounts payable to a Tax authority, in each case within appropriate time limits (without incurring interest or penalties).
 
(o)             Certain Plan Deductions .  For U.S. federal income tax purposes: (i) with respect to the plans listed in Annex 6.5(p), US Bank shall claim the deduction for such payments in its taxable year that ends on the Closing Date, provided that the payments are made by the 15th day of the third calendar month following the Closing Date and US Bank is otherwise entitled to such deduction in such taxable year, and (ii) with respect to the Barclays Global Investors Equity Ownership Plan, if such options are exercised or otherwise settled prior to the Closing, US Bank shall claim the deduction with respect to the exercise or settlement by employees or former employees of US Bank of the options in US Bank’s taxable year that ends on the Closing Date, to the extent that such options are exercised or otherwise settled prior to the Closing.
 
Section 6.6              Client Approvals .
 
(a)            Seller shall use, and cause each of its Affiliates to use, its reasonable best efforts to obtain the consents and approvals (including all approvals by the boards of directors and trustees and shareholders of the Funds Registered under the Investment Company Act) of New Advisory Contracts in accordance with the requirements of Section 15 of the Investment Company Act necessary to satisfy the Assignment Requirements with respect to all Existing Advisory Contracts and all approvals by the boards of directors and trustees of the Funds Registered under the Investment Company Act of “interim” new advisory contracts pursuant to Rule 15a-4 thereunder.  Buyer shall use and to cause each of its Subsidiaries to use its reasonable best efforts to cooperate with Seller and its Affiliates in their efforts to obtain the consents and
 

 
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approvals (including all approvals by the boards of directors and trustees and shareholders of the Funds Registered under the Investment Company Act of New Advisory Contracts in accordance with the requirements of Section 15 of the Investment Company Act) necessary to satisfy the Assignment Requirements with respect to all Existing Advisory Contracts and all approvals by the boards of directors and trustees of the Funds Registered under the Investment Company Act of temporary New Advisory Contracts pursuant to Rule 15a-4 thereunder.  In the event that any such consents and approvals are not obtained on or prior to the Closing Date, following the Closing Date, Buyer and Seller shall use their respective reasonable best efforts to obtain such consents and approvals as soon as practicable and in any event within 150 days after the Closing Date.  From and after the date hereof and until the end of such period, Seller and Buyer shall communicate on a regular basis to stay apprised of the efforts to obtain such consents and approvals.
 
(b)            Subject to Section 10.7, notwithstanding anything herein to the contrary, none of Seller, Buyer or any of their respective Affiliates shall have any obligation under this Agreement to pay any money or other consideration beyond a de minimis review charge to any Person or to initiate any claim or proceeding against any Person in order to obtain any consent, approval or New Advisory Contract necessary to satisfy any Assignment Requirement.
 
(c)            Buyer and Seller agree that consent for any Existing Advisory Contract with a Client that is a Fund Registered under the Investment Company Act shall be deemed given for all purposes under this Agreement only if a New Advisory Contract has been approved by the board under Section 6.6(a) and by the shareholders of the applicable Fund in accordance with Section 6.7 and applicable Law.
 
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Section 6.7             Proxy Statements; Shareholder Meetings .  Seller shall use its reasonable best efforts to cause each US Fund for which a shareholder consent shall be required for a New Advisory Contract to call a special meeting of the shareholders of such Fund to be held as soon as reasonably practicable after the date of this Agreement for purposes of obtaining the requisite approval of such shareholders for such New Advisory Contract.  In connection therewith, Seller will use its reasonable best efforts to (i) cause each such Fund to prepare and file with the SEC all proxy solicitation materials that comply in all material respects with the applicable provisions of Section 14 of the Exchange Act and Section 20 of the Investment Company Act, (ii) mail such proxy solicitation materials as promptly as practicable after review by the SEC and (iii) as soon as practicable following the mailing of the proxy solicitation materials, submit, or cause to be submitted, to the shareholders of each such Fund for a vote at a shareholders meeting the proposals described in the first sentence of this Section 6.7.  Each of Buyer and Seller shall provide promptly in writing all information concerning themselves and their respective Affiliates required to be included in such Funds’ proxy statements under the Exchange Act or the Investment Company Act or under other applicable Laws.  Each of Buyer and Seller shall promptly correct such information if and to the extent that such information becomes false or misleading in any respect.
 
Section 6.8             Section 15(f) .
 
(a)            Buyer acknowledges and agrees that the transactions contemplated by this Agreement are intended to qualify for the treatment described in Section 15(f) of the Investment Company Act.  In this regard, Buyer shall, and from and after the Closing Date shall, to the extent within its control, cause the BGI Business to comply with the conditions of Section 15(f) of the Investment Company Act, including (i) to assure that, for a period of three years after the Closing Date, at least 75% of the board of trustees or board of directors, as the case may be, of each Fund registered under the Investment Company Act or any permitted successor thereto are not “interested persons” of Buyer or Seller, or the respective “affiliated persons” (as that term is defined under applicable provisions of the Investment Company Act and interpreted by the SEC) of either; such efforts to include (A) causing any employee, officer, director or agent of Buyer, any Subsidiary of Buyer or any of their respective “affiliated persons” (as that term is defined under applicable provisions of the Investment Company Act and interpreted by the SEC) who shall be a trustee or director of any Fund registered under the Investment Company Act to resign when required to maintain such percentage, and (B) to ensure that vacancies on the board of trustees or board of directors, as the case may be, of any Fund registered under the Investment Company Act will be filled by a Person who is not an “interested person” of Buyer, any Subsidiary of Buyer or any of their respective “affiliated persons” (as that term is defined under applicable provisions of the Investment Company Act and interpreted by the SEC), who has been selected and proposed for election by a majority of the trustees or directors who are not such interested persons, and who has been elected by shareholders in accordance with Section 16(b) of the Investment Company Act; and (ii) refraining from imposing or seeking to impose, for a period of two years after the Closing Date, any “unfair burden” (as that term is defined in Section 15(f) of the Investment Company Act and interpreted by the SEC) on any Fund registered under the Investment Company Act.
 

 
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(b)            None of Buyer or any of its affiliated persons (as that term is defined under applicable provisions of the Investment Company Act and interpreted by the SEC) has and Buyer shall ensure that no such persons have any express or implied understanding or arrangement which would reasonably be expected to impose an “unfair burden” (as that term is defined in Section 15(f) of the Investment Company Act and interpreted by the SEC) on any of the Funds registered under the Investment Company Act as a result of the transactions contemplated hereby or would in any way violate Section 15(f) of the Investment Company Act.
 
Section 6.9             Other Registered Funds .  With respect to any Fund that is registered with any Government Entity and is not a US Fund, as promptly as practicable following the date of this Agreement, Seller shall, to the extent required by applicable Law or the terms of any Existing Advisory Contract with such Fund, cause the Transferred Entities to (a) provide notice (the “ Notice ”) of the transactions contemplated by this Agreement to such Fund and, where required by applicable Law, to the holders of such Fund, and (b) use reasonable best efforts to obtain any approval, consent or other action, if any, that is required from or by the board of directors or other comparable governing body of such Fund, the shareholders of such Fund or any regulating or self-regulating authority for such Fund so that, after the Closing, the Transferred Entities may continue to provide services to such Fund in accordance with such Fund’s Existing Advisory Contract or otherwise on terms that are substantially similar to those of such Fund’s Existing Advisory Contract.  To the extent consistent with applicable Law or SEC or FINRA pronouncements or unless affirmative approval, consent or action, if any, is required under an applicable Existing Advisory Contract, such approval, consent or other action may take the form of a so-called implied or negative consent.  Buyer shall provide to Seller and the Transferred Entities and their Representatives all information regarding Buyer and its Affiliates reasonably required in connection with obtaining such approval, consent or other action, if any.  Subject to Section 10.7, notwithstanding anything herein to the contrary, neither Seller nor any of its Affiliates shall have any obligation under this Agreement to pay any money or other consideration beyond a de minimis review charge to any Person or to initiate any claim or proceeding against any Person in order to obtain any consent, approval or other action under this Section 6.9.
 
Section 6.10           Non-Registered Funds and Advisory Clients .  With respect to any Fund that is not Registered with any Government Entity and with respect to any Advisory Client, as promptly as practicable following the date of this Agreement, Seller shall, to the extent required by applicable Law or the terms of any Existing Advisory Contract with such Fund or such Advisory Client, cause the Transferred Entities to (a) provide the Notice to such Fund or Advisory Client and (b) use reasonable best efforts to obtain any approval, consent or other action that is required from or by such Fund or such Advisory Client so that, as applicable after the Closing, the Transferred Entities may continue to provide services to such Fund or Advisory Client in accordance with such Fund’s or such Advisory Client’s Existing Advisory Contract or otherwise on terms that, taken as a whole, are substantially similar to those of such Fund’s or such Advisory Client’s Existing Advisory Contract.  Buyer and Seller agree that any consent required for any Existing Advisory Contract with a Client (other than a Fund that is Registered with a Government Entity) to continue after the Closing shall be deemed given for all purposes under this Agreement (i) if written consent is required under applicable Law or the respective
 

 
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Existing Advisory Contract, upon receipt of the written consent requested in the Notice prior to the Closing Date, or (ii) if consent other than written consent is permitted under applicable Law and the respective Existing Advisory Contract, (x) upon receipt of a written consent requested in the Notice prior to the Closing Date or (y) if no such written consent is received, if 45 days shall have passed since the sending of written notice (the “ Negative Consent Notice ”) to such Client (which Negative Consent Notice may be included in the Notice) requesting written consent as aforesaid and informing such Client, to the extent appropriate:  (A) of the intention to complete the transactions contemplated hereby, which will result in a deemed assignment of such Client’s Existing Advisory Contract (or other consequences triggering a consent requirement under applicable Law in the case of such Client); (B) of the Transferred Entities’ or one of their respective Affiliates’ intention to continue to provide the advisory services pursuant to the Existing Advisory Contract with such Client after the Closing if such Client does not terminate such agreement prior to the Closing; and (C) that the consent of such Client will be deemed to have been granted if such Client continues to accept such advisory services for a period of at least 45 days after the sending of the Negative Consent Notice without termination.  Buyer shall provide to Seller and the Transferred Entities and their Representatives all information regarding Buyer and its Affiliates reasonably required in connection with obtaining such approval, consent or other action.  Subject to Section 10.7, notwithstanding anything herein to the contrary, neither Seller nor any of its Affiliates shall have any obligation under this Agreement to pay any money or other consideration beyond a de minimis review charge to any Person or to initiate any claim or proceeding against any Person in order to obtain any consent, approval or other action under this Section 6.10.  For any Contingent Account that exists at the Closing Measurement Date, Buyer shall use its reasonable best efforts to cause such Contingent Account to not terminate the applicable Existing Advisory Contract prior to the end of the True-Up Period.  Subject to Section 10.7, notwithstanding anything herein to the contrary, neither Buyer nor any of its Affiliates shall have any obligation under this Agreement to pay any money or other consideration beyond a de minimis review charge to any Person or to initiate any claim or proceeding against any Person in order to obtain any consent, approval or other action under this Section 6.10.
 
Section 6.11           Certain Post-Closing Filings .  Following the Closing Date, Buyer shall cause US Fund Advisors promptly to amend its Form ADV and promptly to file such amendment with the SEC and any applicable state authorities, for the purpose of disclosing information about the change in control of the Persons comprising BGI Business and any change in personnel following the Closing, and to cause US International and US Fund Advisors promptly to amend their respective Form 7-Rs to make similar appropriate updates to the information therein.  Following the Closing Date, Buyer shall, or to cause its applicable Subsidiaries to, make all necessary filings relating to the consummation of the transactions contemplated by this Agreement that may be required to be made with any applicable Government Entity.
 

 
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Section 6.12           Continuity of Employment; Post-Closing Obligations of the Transferred Entities to Certain Employees .
 
(a)            Except as mutually agreed in good faith by Buyer and Seller or as otherwise provided under the Transition Services Agreement, for the period from the Closing Date through December 31, 2010 (the “ Transition Period ”), (i) each Employee shall be employed by Buyer or one of its Affiliates (including on or after the Closing Date, the Transferred Entities) in accordance with applicable Law, (ii) each Transferred Entity shall continue to provide employee benefits to its Employees under the applicable Assumed Benefit Arrangements, provided, however, that with respect to any Assumed Benefit Arrangement that is a severance plan, policy, or practice, Buyer and the Transferred Entities shall be permitted, subject to the requirements of applicable Law, to provide substitute severance plans, policies or practices or to amend such plans or policies, provided that any such substituted or amended severance plan, policy or practice shall provide the Employees with severance benefits that are not materially less favorable in the aggregate than the severance benefits provided to similarly-situated employees of Buyer, and (iii)  except as otherwise required by clause (i), to the extent any Employee is currently provided with health, welfare or other employee benefits under Benefit and Compensation Arrangements that are not Assumed Benefit Arrangements, such Employee shall participate in analogous employee benefit plans, contracts, programs, policies or arrangements of Buyer or any of its Affiliates on a basis substantially similar to that of similarly situated Buyer employees in the relevant country (or if Buyer has no employees in the relevant country, Buyer shall discuss in good faith with Seller the establishment of benefit plans appropriate to the labor market in such country).  During the Transition Period, Buyer and the Transferred Entities shall work together in good faith to develop plans and arrangements covering the Employees following the Transition Period.  The foregoing shall not require Buyer or any of its Affiliates to maintain any particular type of employee compensation or benefit plan following the Transition Period.  If Buyer or one of its Affiliates would need to make an offer of employment to an Employee, such offer will be subject to satisfaction of Buyer’s standard conditions for employment, except that employee benefits for each such Employee shall be provided in accordance with the foregoing through the end of Transition Period.  This Section 6.12(a) shall not be construed to limit the ability of Buyer to terminate the employment of any Employee at any time.  Prior to the Closing, each Transferred Employee shall become an employee of a Transferred Entity.
 
(b)            With respect to any plan that is a “welfare benefit plan” (as defined in Section 3(1) of ERISA), or any plan that would be a “welfare benefit plan” (as defined in Section 3(1) of ERISA) if it were subject to ERISA, maintained by Buyer or its Affiliate after the Closing Date, Buyer shall use reasonable efforts to, or cause its third-party insurance providers or third party administrators to (i) waive any pre-existing condition, actively at work requirements and waiting periods, and (ii) cause such plans to honor any expenses incurred by the Employees and their beneficiaries under similar plans of Seller and its Affiliates during the portion of the calendar year in which the Closing Date occurs for purposes of satisfying applicable deductible, co-insurance and maximum out-of-pocket expenses.
 

 
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(c)            Employees shall be given credit for all service with Seller or any of its Affiliates, to the same extent as such service was credited for such purpose by Seller or any of its Affiliates, under each Buyer employee benefit plan, program or arrangement in which such Employees are eligible to participate for purposes of eligibility, vesting and benefit accrual (other than benefit accrual under a defined benefit pension plan in which no assets are transferred pursuant to this Agreement); provided , however , that no such service recognition shall result in any duplication of benefits.
 
(d)            As of the Closing, Buyer shall assume, be responsible for, hold the Seller Indemnified Parties harmless against and indemnify the Seller Indemnified Parties for all liabilities and obligations in respect of all Assumed Benefit and Compensation Arrangements and Seller and its Affiliates (excluding any Transferred Entity) shall retain, be responsible for, hold the Buyer Indemnified Parties harmless against and indemnify the Buyer Indemnified Parties for all liabilities and obligations in respect of any Benefit and Compensation Arrangement other than the Assumed Benefit and Compensation Arrangements.
 
(e)            Nothing contained in this Agreement shall confer upon any Employee any right with respect to continuance of employment by Buyer or any of its Affiliates, nor shall anything in this Agreement interfere with the right of Buyer or any of its Affiliates to terminate the employment of any of the Employees at any time, with or without cause, or restrict Buyer or any of its Affiliates in the exercise of its independent business judgment in modifying any of the terms and conditions of the employment of the Employees following the Closing Date.
 
(f)            Notwithstanding anything to the contrary set forth in this Agreement, this Agreement is not intended, and it shall not be construed, to amend or create third party beneficiary rights in the Employees or any other Person who is a participant in, any benefit plans (including any beneficiaries or dependents thereof) under or with respect to any agreement, plan, program or arrangement described in or contemplated by this Agreement.  This Agreement does not create any right under the UK Contracts (Rights of Third Parties) Act of 1999 which is enforceable by any Employee, Transferred Employee or any other individual providing services to the Transferred Entities.
 
(g)            During the Transition Period, subject to the requirements of applicable Law, each Employee shall participate in compensation plans, programs and arrangements (including but not limited to those providing for the opportunity to earn incentive compensation), maintained by Buyer or any of its Affiliates on a basis substantially similar to that of similarly situated Buyer employees in the relevant country (or if Buyer has no employees in the relevant country, Buyer shall discuss in good faith with Seller the establishment of compensation plans, programs and arrangements that are appropriate to the labor market in such country).  In addition, following the Closing Date, the Employees shall be eligible to receive the payments and awards described on Annex 6.12 hereto.
 
(h)            At least 5 days prior to the Closing, Seller shall deliver a schedule (the “ Estimated Liability Schedule ”) to Buyer identifying and quantifying, in good faith and with reasonable specificity, any accrued and unpaid liabilities (including, without limitation, any withholding
 

 
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Taxes), estimated as of 15 days prior to the Closing, that relate to (i) Benefit and Compensation Arrangements of Seller or any Transferred Entity; (ii) wages and overtime pay; (iii) retention payments as allowed in Section 6.2 of the Seller’s Disclosure Schedules; (iv) 2009 bonus payments (including the portion to be awarded by Buyer in the form of restricted stock units) to the extent specified in Annex 6.12; (v) awards announced for the contemplated, but never implemented, Barclays Global Investors Equity Participation Plan; and (vi) other miscellaneous individual payments related to compensation, severance, closing bonuses and transition payments, in each case, the payment of which Buyer is responsible for following the Closing (collectively, the “ Accrued Compensation Liabilities ”).  The Estimated Liability Schedule shall also set forth a good faith estimate of the anticipated date on which each Accrued Compensation Liability would be paid and shall separately identify all Assumed Benefit and Compensation Arrangements to be terminated prior to the Closing.  Seller shall fully fund the Accrued Compensation Liabilities immediately prior to the Closing in accordance with the Estimated Liability Schedule, with assets that are permissible under any applicable Benefit and Compensation Arrangement (such funds the “ Accrued Compensation Liabilities Funds ”).  Buyer shall use commercially reasonable efforts to pay the Accrued Compensation Liabilities by the estimated time of payment set forth in the Estimated Liability Schedule, and shall otherwise pay such amounts as soon as practicable thereafter.  Notwithstanding anything contained herein to the contrary, Buyer’s aggregate post-Closing payment obligation with respect to Accrued Compensation Liabilities shall be limited to the extent of its aggregate receipt of the Accrued Compensation Liabilities Funds as described in this Section 6.12(h).  The Accrued Compensation Liabilities, the estimate of the Accrued Compensation Liabilities and the amount of the Accrued Compensation Liabilities Funds shall be determined in accordance with GAAP, IFRS, or other applicable accounting principles, as applicable to the local entity in which each such liability is recorded.  Within 120 days following the Closing, and on or about the last day of each ensuing calendar quarter thereafter until all Accrued Compensation Liabilities are paid, Buyer shall provide Seller with a reconciliation of the Accrued Compensation Liabilities paid to date (the “ Paid Accrued Compensation Liabilities ” as of that date) and the amount scheduled to be paid in respect of such liability, and Buyer shall provide Seller with full access to books, records and employees and other information in its and its Affiliates’ possession necessary to verify such reconciliation.  Within 10 Business Days following the provision of such reconciliation, to the extent that the amount paid in respect of Paid Accrued Compensation Liabilities is less than the amount scheduled to be paid in respect of such Paid Accrued Compensation Liabilities, Buyer shall reimburse Seller for the excess funding, and, to the extent that the amount paid in respect of Paid Accrued Compensation Liabilities is greater than the amount scheduled to be paid in respect of such Paid Accrued Compensation Liabilities, Seller shall make a payment to Buyer to fund the shortfall (such reimbursement or payment to be deemed an adjustment to the Purchase Price for all Tax purposes).  Nothing contained in this Section 6.12(h) shall be construed to limit the right of any Buyer Indemnified Party to indemnification pursuant to Section 8.2 and the reconciliation provided for above shall not be deemed to limit Seller’s funding obligation under this Section 6.12(h).  For greater certainty, for purposes of this Section 6.12(h), an Accrued Compensation Liability will be deemed to be not yet paid, and will not be included in the reconciliations contemplated by this Section 6.12(h), for so long as such Accrued Compensation Liability is subject to a claim or threatened claim.
 

 
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(i)            Buyer and Seller acknowledge that, following the Closing, steps will need to be taken in relation to the transition and/or winding up of certain Benefit and Compensation Arrangements, including any payments to be made under those arrangements. Buyer and Seller agree that they shall use commercially reasonable efforts to provide any information, support and assistance as Seller or Buyer, as applicable, may reasonably require in order to enable Buyer and Seller to carry out their obligations under the Benefit and Compensation Arrangements, which includes any steps necessary to facilitate any payments to Employees and/or the winding up of any Benefit and Compensation Arrangement.
 
Section 6.13           Ancillary Agreements .
 
(a)            Each of Buyer and Seller agrees with respect to the Transition Services Agreement, to negotiate in good faith and use their reasonable best efforts to on or prior to the Closing Date execute and deliver, or cause their appropriate Affiliates that are parties thereto to execute and deliver, such Transition Services Agreement, which will contain reasonable and customary terms (including that Buyer will use its reasonable best efforts to migrate off of the services as soon as practicable) and conditions and cover all services (other than those that are being provided pursuant to arms’ length agreements between Seller and the Transferred Entities in effect on the date hereof and that will remain in effect after the Closing) that are being provided by Seller and its Subsidiaries (other than the Transferred Entities) to the Transferred Entities between the date of this Agreement and the Closing and that are requested by Buyer in order to operate the BGI Business in the same manner in which it was operated in the three months prior to the Closing.  The pricing for such services shall be based on the historical methodology for assessing charges for services provided by Seller to the Transferred Entities, provided that if no historical pricing exists, the pricing shall be Seller’s cost, and the term of such services shall not exceed 12 months; provided , however , that Buyer shall have the right, exercisable once only, to extend the term of any service by three months to the extent that it shall be reasonably necessary for Buyer to have such extension.
 
(b)            Each of Buyer and Seller agrees, with respect to the Ancillary Agreements (other than the Transition Services Agreement), to execute and deliver, or cause their appropriate Affiliates that are parties thereto to execute and deliver, prior to the Closing, each such Ancillary Agreement, in each case in all material respects in the form attached hereto, with such changes as to which the parties thereto shall mutually agree.
 
Section 6.14           Insurance .  Following the Closing Date, the Transferred Entities shall no longer be insured under any insurance policy of Seller or any of its Affiliates.
 
Section 6.15           Non-Solicitation .
 
(a)            Seller agrees that, for the period commencing on the Closing Date and expiring on the second anniversary of the Closing Date, neither it nor any of its Affiliates shall directly or indirectly (i) solicit for employment or any similar arrangement any Employee or (ii) hire or assist any other Person in hiring any such Employee; provided , however , that this Section 6.15(a) (x) shall not apply to Employees who have not been employed by Buyer or any of its Affiliates (including the Transferred Entities) at any time during the six months prior to the applicable
 

 
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inducing, encouraging, soliciting or hiring, (y) shall not apply to Persons whose employment was terminated by Buyer or any of its Affiliates and (z) shall not prohibit general solicitations for employment through advertisements or other means (including the hiring of any Person resulting therefrom that is not known to be an Employee and the hiring of any Person resulting therefrom whose base salary will be less than $400,000 per year, in each case, to the extent that the solicitation was non-targeted).
 
(b)            Buyer agrees that:
 
   (i)            for the period commencing on the date of this Agreement and expiring on the second anniversary of the Closing Date, neither it nor any of its Affiliates (including the Transferred Entities following the Closing) shall directly or indirectly (A) induce or encourage or solicit any employee of Seller or any of its Affiliates (other than any Employee) with whom Buyer or any of its Affiliates had contact with in connection with the consideration of the transactions contemplated hereby to leave such employee’s employment or to accept any other position or employment with Buyer or any of its Affiliates (including the Transferred Entities following the Closing) or (B) hire or assist any other Person in hiring such employee;
 
   (ii)            for the period commencing on the date of this Agreement and expiring at the Closing, neither it nor any of its Affiliates shall directly or indirectly (A) induce or encourage or solicit any Employee to leave such Employee’s employment with Seller or any of its Affiliates (including the Transferred Entities) prior to the Closing or (B) hire or assist any other Person in causing such Employee to leave such Employee’s employment with Seller or any of its Affiliates (including the Transferred Entities) prior to the Closing; and
 
   (iii)            if this Agreement is terminated prior to the Closing for a period commencing on the date on which this Agreement is terminated and expiring on the first anniversary of such termination, neither it nor any of its Affiliates shall directly or indirectly (A) induce or encourage or solicit any Employee in respect to whom Buyer or any of its Affiliates received information in connection with the consideration of the transactions contemplated hereby to leave such Employee’s employment or to accept any other position or employment with Buyer or any of its Affiliates or (B) hire or assist any other Person in hiring such Employee;
 
provided , however , that this Section 6.15(b) (x) shall not apply to employees (including Employees) who have not been employed by Seller or any of its Affiliates at any time during the six months prior to the applicable inducing, encouraging, soliciting or hiring, (y) shall not apply to Persons whose employment was terminated by Seller or any of its Affiliates and (z) shall not prohibit general solicitations for employment through advertisements or other means (including the hiring of any Person resulting therefrom whose base salary will be less than $400,000 per year to the extent that such solicitation is not specifically targeted); provided that Seller may not hire any Employee as a result of such general solicitation if such hiring would otherwise be prohibited by this Section 6.15(b).
 
(c)            Notwithstanding anything in this Agreement to the contrary, the parties intend that the covenants and other obligations set forth in this Section 6.15 shall be subject to equitable enforcement (including specific performance and injunctive relief).
 

 
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Section 6.16           Parent Shareholder Approval .
 
(a)            Parent shall prepare and submit to the United Kingdom Listing Authority (“ UKLA ”) as promptly as reasonably practicable after the date of this Agreement (and in any event within 10 Business Days, subject to prompt provision of information by the Buyer as set forth below) a draft of a circular relating to and for the purposes of convening the Parent Shareholders Meeting (the “ Circular ”) for approval, together with all other documents required to be lodged with the UKLA before it will approve such Circular and seek UKLA approval of such Circular; provided , however , that prior to such submission of the Circular (and any supplement or amendment thereto), Parent shall cooperate and provide Buyer with a reasonable opportunity to review and comment on any summary of or reference to this Agreement and the transactions contemplated hereby or Buyer or any of its Affiliates in the form and context in which any such reference appears.  Buyer agrees to promptly provide such information to Parent concerning Buyer and its Affiliates as may be reasonably required by Parent for the purposes of the preparation of the Circular and any required supplement or amendment thereto.  Parent shall use its reasonable best efforts to have the Circular (and any supplement or amendment thereto) approved by the UKLA (as required) as promptly as practicable.  Parent agrees, as to itself and its Subsidiaries and directors, that the Circular and any amendments or supplements thereto shall comply in all material respects with the applicable provisions of Law relating to companies incorporated in England.
 
(b)            Parent shall, subject to its final approval by the UKLA and not later than the later of 10 Business Days after such UKLA approval or the time the Circular must be posted in order to hold the Parent Shareholders’ Meeting on August 7, 2009, post the Circular to the holders of Parent Ordinary Shares to convene a general meeting of the holders of Parent Ordinary Shares at which the resolutions referred to in Section 3.3 (Corporate Authority) (the “ Resolutions ”) will be proposed or any adjournment thereof (the “ Parent Shareholders Meeting ”).  Parent shall convene the Parent Shareholders Meeting promptly for a date no later than 25 Business Days following the date of posting of the Circular, but in no event shall Parent be required to convene the Parent Shareholders Meeting earlier than August 7, 2009.  In relation to the Parent Shareholders Meeting and the conduct of business thereat, Parent shall comply with applicable Law and provide that the vote on each of the Resolutions is taken by way of a poll.  The Resolutions will be submitted to the holders of Parent Ordinary Shares at the Parent Shareholders Meeting whether or not any Acquisition Proposal shall have been publicly proposed or announced or otherwise submitted to Parent or any of its advisors.
 
   (i)           Parent undertakes to Buyer that the directors of Parent shall recommend to the holders of Parent Ordinary Shares, in the Circular (and any supplement or amendment thereto) and at the Parent Shareholders Meeting, that the Resolutions be passed and that they will not at any time withdraw or modify, in a manner which is adverse to Buyer or implementation of the transactions contemplated by this Agreement, such recommendation except to the extent that the directors of Parent have determined in good faith, after having obtained independent legal advice, that such recommendation should be withdrawn or modified in order to comply with their fiduciary duties and statutory obligations under applicable Law (a “ Change in Recommendation ”).
 

 
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   (ii)          Parent agrees, if reasonably practicable in light of applicable Law and the rules of any applicable stock exchange, to advise Buyer if Parent’s Board is considering a Change of Recommendation and to provide Seller reasonable advance notice of the announcement of a Change in Recommendation including the reasons therefor.
 
(c)            Parent agrees that neither it nor any of its Affiliates nor any officer or director of it or any of its Affiliates shall, and Parent shall instruct its Representatives not to, directly or indirectly:
 
   (i)           initiate, solicit or encourage any inquiries or the making of any proposal or offer that constitutes, or could reasonably be expected to lead to, any Acquisition Proposal; or
 
   (ii)          engage in, continue or otherwise participate in any discussions or negotiations regarding, or provide any non-public information or data to any Person, or afford access to the business, properties, assets, books or records of the BGI Business or the Transferred Entities in connection with or relating to, any Acquisition Proposal; or
 
   (iii)          enter into any agreement in principle, letter of intent, term sheet or similar instrument relating to an Acquisition Proposal; or
 
   (iv)          otherwise knowingly facilitate or assist any effort or attempt to make an Acquisition Proposal.
 
(d)            Parent shall promptly notify Buyer of any enquiry, approach, information or meeting request from a third party that relates to, or may reasonably be considered to relate to or be in connection with, an Acquisition Proposal providing reasonable details thereof.
 
Section 6.17           Information Statement .
 
(a)            Buyer shall prepare and file with the SEC, as promptly as practicable after the date of this Agreement (taking into account the timing of the delivery by Seller to Buyer of any necessary historic financial statements), a written information statement containing the information specified in Schedule 14C under the Exchange Act and concerning the Share Issuance and the transactions contemplated by this Agreement under the Exchange Act (the “ Information Statement ”).  Buyer agrees, as to itself and its Subsidiaries, that the Information Statement and any amendment or supplement thereto (i) shall comply in all material respects with the applicable provisions of the Exchange Act and the rules and regulations thereunder and (ii) shall not, at the date of mailing to holders of Buyer Common Stock, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except with respect to statements made or incorporated by reference therein based on information supplied by or on behalf of Seller or any of its Affiliates.  Seller shall cooperate in the preparation of the Information Statement and shall promptly provide to Buyer all information regarding Seller or any of its Affiliates (including, but not limited to, any financial statements of and other information relating to the Transferred Entities which may be required pursuant to Regulation 14C under the Exchange Act) that is reasonably required in
 

 
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connection with the preparation, filing and distribution of the Information Statement and any amendment or supplement thereto.  Seller agrees that none of the information supplied by Seller for inclusion or incorporation by reference in the Information Statement shall, at the date of mailing to the holders of Buyer Common Stock, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
 
(b)            Buyer shall promptly notify Seller of the receipt of any comments of the SEC with respect to the Information Statement and of any request by the SEC for any amendment or supplement thereto or for additional information and shall promptly provide Seller with copies of all correspondence between Buyer or any of its Representatives and the SEC with respect to the Information Statement.  Seller and Buyer shall each use their reasonable best efforts to promptly provide responses to the SEC with respect to all comments of the SEC received on the Information Statement, and Buyer shall cause the definitive Information Statement to be mailed, or made available pursuant to Rule 14a-16 under the Exchange Act, as promptly as possible after the date on which the SEC staff advises that it has no further comments thereon or that Buyer may commence the mailing of the Information Statement.
 
Section 6.18           Confidentiality .
 
(a)            Parent and Seller shall, and shall use their reasonable best efforts to cause their Subsidiaries and their respective officers, directors, employees and Representatives to, treat as confidential and safeguard any and all information, knowledge and data in its possession (i) relating to Buyer and its Affiliates that becomes known to Parent or Seller as a result of the transactions contemplated by this Agreement except as otherwise agreed to by Buyer in writing or (ii) from and after the Closing Date, relating to the Transferred Entities.  Notwithstanding the foregoing sentence, nothing in this Section 6.18(a) shall prevent the disclosure of any such information, knowledge or data in accordance with any requirement under applicable Laws or administrative or regulatory process; provided , however , that, unless legally restricted from doing so, Parent or Seller shall first inform Buyer of its intention to disclose such information so that Buyer may seek an appropriate protective order.
 
(b)            Buyer shall, and shall use its reasonable best efforts to cause its officers, directors, employees and Representatives to, treat as confidential and safeguard any and all information, knowledge or data included in any information relating to the business of Seller and its Subsidiaries other than information relating to the Transferred Entities that becomes known to Buyer as a result of the transactions contemplated by this Agreement except as otherwise agreed to by Parent or Seller in writing.  Notwithstanding the foregoing sentence, nothing in this Section 6.18(b) shall prevent the disclosure of any such information, knowledge or data in accordance with any requirement under applicable Laws or administrative or regulatory process; provided , however , that, unless legally restricted from doing so, Buyer shall first inform Parent and Seller of its intention to disclose such information so that Parent and Seller may seek an appropriate protective order.
 

 
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(c)            Parent and Seller, on one hand, and Buyer, on the other hand, acknowledge that the confidentiality obligations set forth in this Section 6.18 shall not extend to information, knowledge and data that is publicly available or becomes publicly available through no act or omission of the party owing a duty of confidentiality, or becomes available on a non-confidential basis from a source other than the party owing a duty of confidentiality so long as such source is not known by such party to be bound by a confidentiality agreement with or other obligations of secrecy to the other party.
 
(d)            In the event of a breach of the obligations under this Section 6.18 by Seller, on the one hand, or Buyer, on the other hand, the non-breaching party, in addition to all other available remedies, will be entitled to injunctive relief to enforce the provisions of this Section 6.18.
 
Section 6.19           Base Revenue Schedule .  Seller shall deliver to Buyer, within five Business Days after the date of this Agreement, a finalized Base Revenue Schedule, complete and correct in all material respects.
 
Section 6.20           Release .  At or prior to the Closing, the Transferred Entities shall each execute releases in the form of Exhibit D acquitting, releasing and discharging the directors of the Transferred Entities from any and all liabilities to the Transferred Entities that exist as of the Closing Date or that arise in the future and through the Closing Date from events or occurrences taking place prior to or as of the Closing Date.
 
Section 6.21           Intercompany Items .  At or prior to the Closing, all Intercompany Receivables (other than Closing Intercompany Loans and Refund Intercompany Loans), Intercompany Payables and Intracompany Payables and Receivables shall be settled or paid other than (i) those set forth on Section 6.21 of the Seller’s Disclosure Schedules or (ii) as contemplated in Schedule 6.26 of the Seller’s Disclosure Schedule.
 
Section 6.22           Information for Fund Boards .  With respect to each Fund, Buyer and Seller promptly shall provide to the board of directors or board of trustees of such Fund (or similar body) all information relating to such party and its Affiliates that is necessary and/or reasonably requested by such board to enable it to evaluate the terms of each applicable New Advisory Contract, agreement or arrangement proposed in connection with the transactions contemplated by this Agreement and relating to any such Fund.  Buyer and Seller shall promptly provide to the other party copies of all information provided to a Fund board in accordance with this Section 6.22.
 
Section 6.23           Interest in Intellectual Property .
 
(a)            Buyer, for itself and its Subsidiaries, acknowledges and agrees that Buyer and its Subsidiaries are not purchasing, acquiring, licensing or otherwise obtaining any right, title or interest in, to or under the name “Barclays” or the Barclays eagle device, or any Trademark, logo or business name, corporate name, d/b/a or other name related thereto or employing the wording “Barclays” or employing the Barclays eagle device, or any derivation or variation of the foregoing or any confusingly similar corporate or business name or d/b/a or any other name or Trademark whether registered or unregistered, (such corporate or business names, d/b/a’s, other
 

 
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names, Trademarks, logos and devices collectively, the “ Seller’s Names and Marks ”).  Neither Buyer nor any of its Affiliates shall or shall instruct others to (i) seek to register in any jurisdiction any of the Seller’s Name or Marks or other name or Trademark that is a derivation, translation, adaptation, combination or variation of any Seller’s Names and Marks or that is confusingly similar thereto, or (ii) contest the use, ownership, registerability, validity or enforceability of any rights of Seller or any of its Affiliates in or to any of the Seller’s Names and Marks.  The provisions of Section 6.23(b) shall not be deemed to limit the provisions of, nor the restrictions on Buyer and its Affiliates described in, this Section 6.23(a).  This Section 6.23(a) shall not restrict Buyer’s ownership and use of the BGI Marks as provided in Section 6.23(e) below.
 
(b)            Buyer agrees on behalf of itself and its Subsidiaries that, except as expressly provided in this Agreement, on and following the Closing Date, Buyer and its Subsidiaries shall, as soon as reasonably practicable (but in no event more than 180 days after the Closing Date) cease and discontinue any and all uses of any and all Intellectual Property owned or licensed by Seller or any its Affiliates, including without limitation any Trade Secrets owned or licensed by Seller or any of its Affiliates, other than (i) Intellectual Property used by Buyer and its Subsidiaries pursuant to Contracts and licenses between Seller or any of its Affiliates, on the one hand, and any of the Transferred Entities or Buyer and its Affiliates, on the other hand, that remain in effect following the Closing Date (which Intellectual Property they shall be permitted to continue to use as provided in such Contracts and licenses),  (ii) as otherwise provided pursuant to this Agreement or any Ancillary Agreement (which Intellectual Property they shall be permitted to continue to use as provided in this Agreement or any such Ancillary Agreement) or (iii) the Intellectual Property set forth on Schedule 6.23(b) of the Seller’s Disclosure Schedules (which Intellectual Property will be provided pursuant to the Transition Services Agreement); provided , that nothing herein shall be deemed to modify or diminish the representation and warranty in Section 4.11(h); and provided, further, that, the parties shall cooperate in good faith and use commercially reasonable efforts to identify prior to the Closing Date all such Intellectual Property that Buyer and its Affiliates are to cease or discontinue using.  Subject to the foregoing, Buyer agrees on behalf of itself and its Subsidiaries that any and all rights of the Transferred Entities and any of their sublicensees, if any, to any Intellectual Property that remains owned or licensed by Seller or any of its Affiliates after the Closing Date shall terminate on the Closing Date, other than (i) Intellectual Property used by Buyer and its Subsidiaries pursuant to Contracts or licenses between Seller or any of its Affiliates, on the one hand, and any of the Transferred Entities or Buyer and its Affiliates, on the other hand, that remain in effect following the Closing Date which Intellectual Property they shall be permitted to continue to use as provided in such Contracts and licenses, (ii) as otherwise provided pursuant to this Agreement or any Ancillary Agreement (which Intellectual Property they shall be permitted to continue to use as provided in this Agreement or any such Ancillary Agreement) or (iii) the Intellectual Property set forth on Schedule 6.23(b) of the Seller’s Disclosure Schedules, which Intellectual Property will be provided pursuant to the Transition Services Agreement.  In addition, subject to the first sentence of this Section 6.23(b), Buyer will cause the Transferred Entities and their successors (if any) to cease use of the color Pantone Cyan C and any font which is identical or confusingly similar to the font used by Seller in connection with its Barclays mark as of the date of this Agreement, in each case in a manner likely (i) to suggest any
 

 
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connection in the course of trade or association with Seller or (ii) to dilute Seller’s rights in its marks or the rights of any of Seller’s Affiliates in their marks; provided, however, that the foregoing shall not require the Buyer to cause any Transferred Entity to change the color used in any i-Shares Trademark immediately prior to the Closing.
 
(c)            Subject to applicable Law, Buyer for itself and its Subsidiaries acknowledges and agrees that, prior to the Closing, Seller may and may permit its Affiliates to take any and all actions and make all such filings and request any and all approvals from all applicable Government Entities, if any, reasonably necessary in order to permit Buyer and its Subsidiaries to remove any of Seller’s Names and Marks from the corporate name, d/b/a, fictitious name and other names, if any of any Transferred Entity.  Buyer and its Subsidiaries shall take all such actions, make all such filings and request all such approvals as reasonably necessary to remove any of Seller’s Names and Marks from any corporate name, d/b/a, fictitious name and other names of any Transferred Entity as promptly as practicable after the Closing (and in any event, no later than 30 Business Days after the Closing).  The parties and their respective Affiliates shall cooperate in good faith, and shall in a timely manner take all such actions and execute any such documents as may be reasonably necessary, to expedite, further and record all such name changes.  Subject to applicable Law after the Closing Date, Buyer and its Subsidiaries shall not expressly or by implication do business as or represent themselves as Seller or any of its Affiliates, and shall use all reasonable best efforts to ensure that there is no confusion that the Transferred Entities are no longer affiliated with Seller or any of its Affiliates.
 
(d)            Subject to applicable Law, after the Closing Date, Seller and its Affiliates (i) shall not expressly or by implication do business as or represent themselves as Buyer or any of its Subsidiaries, and shall use all reasonable efforts to ensure that there is no confusion that the Transferred Entities are no longer affiliated with Seller or any of its Affiliates, (ii) shall cease all use of the Trademarks owned by any of the Transferred Entities or any derivation or variation of the foregoing or any confusingly similar Trademark, corporate or business name or d/b/a, (iii) shall cease all use of the Intellectual Property owned by any of the Transferred Entities and (iv) shall cease all use of the “i500r”, “i60”, “i60C”, “iEnergy”, “iFin”, “iG5”, “iG10”, “iGold”, “ilntR”, “iMidCap”, “iProducts”, “iREIT”, “iRetire”, “ISHARES”, “I SHARE”, “iShares 529 Plan”, “iShares”, “iUnits” and “IUNITS iUnits” Trademarks and any other mark with an “i” prefix that is used by any of the Transferred Entities or is the subject of registrations or pending applications for registration, in each case, in connection with the BGI Business as of the date of this Agreement (the Trademarks identified in subsections (ii) and (iv) are the “ Buyer’s i-Marks ”), including any derivation or variation of the foregoing, and any other Trademark, corporate or business name or d/b/a/ that is confusingly similar with the foregoing Buyer’s i-Marks, subject to the following sentence.  Notwithstanding the foregoing, subsections (ii), (iii) and (iv) of this Section 6.23(d) shall not apply to the “iPath” or “iMortgage” Trademarks or any other mark with an “i” prefix that is not a Buyer’s i-Mark and that is used by, or is the subject of registrations or pending applications for registration of, any member of the Parent Group (other than marks used by a Transferred Entity as of the date of this Agreement in connection with the BGI Business or marks that are the subject of registrations or pending applications for registration in connection with the BGI Business, but excluding, specifically, the “iPath” and “iMortgage” Trademarks) as of the date of this Agreement (the “ Seller’s i-Marks ”), or, in each
 

 
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case, any derivation or variation thereof, or any other “i” mark other than one confusingly similar with Buyer’s i-Marks. Subject to the foregoing, Buyer and its Affiliates shall not use any Trademark, corporate or business name or d/b/a/ that is confusingly similar with the Seller’s i-Marks.
 
(e)            Seller acknowledges and agrees that, after the Closing Date, (i) the Transferred Entities shall own all rights, title and interest in and to the “iShares” Trademark and the “BGI” Trademark, (ii) that Buyer shall be entitled to adopt the Trademark “BlackRock Global Investors” and to own all rights, title and interest to such Trademark and (iii) that Buyer and its Affiliates shall be entitled to use the BGI Marks, subject to the terms of this Section 6.23(e).  Buyer, for itself and its Subsidiaries, covenants and agrees that Buyer and its Subsidiaries shall not use, nor authorize the use of, “BGI”, “BlackRock Global Investors” or, in each case, any derivation or variation thereof (collectively, the “ BGI Marks ”) in any manner that would suggest an affiliation or association with Seller or its Affiliates, or that contain, or is confusingly similar to any Seller’s Names and Marks, and shall not, nor authorize others to, adopt or seek to register in any jurisdiction any BGI Marks that contain, or are confusingly similar to any Seller’s Names and Marks.  Without limiting the foregoing in any way, Buyer and its Subsidiaries shall not (x) use the BGI Marks with any logo or design used by the Transferred Entities prior to the Closing and owned by the Seller and its Affiliates after the Closing, or (y) print or display, nor authorize others to print or display, the BGI Marks in, (A) until the second anniversary of the Closing Date, any blue color, and thereafter, Pantone Cyan C, or (B) a font confusingly similar to that of any Seller’s Names and Marks in use on the date of this Agreement.  The provisions of Section 6.23(b) shall not be deemed to limit the provisions of, nor the restrictions on Buyer and its Affiliates described in, this Section 6.23(e).
 
(f)            Prior to the Closing, Seller will transfer or cause to be transferred to the Transferred Entities all Trademarks identified on Section 6.23(f) of the Seller’s Disclosure Schedules.
 
(g)            Prior to the Closing, the Transferred Entities will transfer or cause to be transferred to Seller or one of its Affiliates that is not a Transferred Entity the Trademarks and domain names identified on Section 6.23(g) of the Seller’s Disclosure Schedules.
 
(h)            Notwithstanding the provisions of Section 6.23(a), Buyer and its Subsidiaries shall be permitted to continue to use after the Closing Date the Barclays Global Investors mark and eagle logo (the “ Licensed Marks ”) to the limited extent, and only in the exact form, they appear on the unaltered client reports, analyst reports, research publications, articles, press releases, analyses, strategy commentary, and other similar types of publications,  including the publications “Investment Insights,” “Solutions” and “Currents,” in each case that were published (whether in hard copy or electronic format) by the Transferred Entities as of the Closing Date (collectively, the “ Publications ”), but not on any new editions, variations or versions of, or any amendments or supplements to, any such Publications that are created after the Closing Date.  For the avoidance of doubt, Buyer and its Subsidiaries may only make unaltered copies of the Publications existing as of the Closing Date that bear the Licensed Marks, but may not use the Licensed Marks on any new publications created after the Closing Date.  Buyer and its
 

 
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Subsidiaries shall ensure that (i) all distributions of the Publications are accompanied by a statement, in a form substantially similar to the following: "As of December 1, 2009 the former Barclays Global Investors entities referred to on this website or its contents are owned and controlled by BlackRock Inc. and neither Barclays nor any Barclays affiliate is responsible for, or associated with, the contents of this website or any publication available on or through this website,” provided that the foregoing requirement to include such statement shall not apply to additional copies of Publications that constitute work product specifically prepared for a particular client of the BGI Business prior to the Closing Date (each such Publication, a “ Pre-Closing Client Report ”) that BGI provides to such client at its request after the Closing Date and (ii) the nature and quality of all uses of the Licensed Marks made by Buyer and its Subsidiaries pursuant to this Section 6.23(h) shall be at a level of quality equivalent in all material respects to that employed by the Seller and its Affiliates immediately prior to the Closing Date. In the case of electronic Publications accessible by website, it shall be sufficient if the agreed statement described in the preceding sentence is prominently displayed on the website landing page from which the electronic Publications are accessed.  Upon Seller’s request, Buyer shall promptly provide Seller with access to or samples of the Publications to permit Seller to confirm compliance with this Section 6.23(h).  Neither Buyer nor any of its Affiliates shall at any time after the Closing Date represent that any Pre-Closing Client Report reflects or contains the views of Seller or any of its Affiliates or speaks as of any date or time other than the original date that such Pre-Closing Client Report was first made available to the particular client it was prepared for.  Any material breach by Buyer of the covenants set forth in this Section 6.23(h) that is not corrected within 20 Business Days of the receipt of notice from Seller that there has been a breach shall permit Seller to terminate Buyer’s and its Subsidiaries rights under this Section 6.23(h) upon written notice from Seller to Buyer. All rights not expressly granted by this Section 6.23(h) are reserved to Seller.
 
Section 6.24          Non-Compete .
 
(a)            Subject to Section 6.24(b), Parent and Seller agree that for the period commencing on the Closing Date and ending on the third anniversary of the Closing Date, neither they nor any of their Specified Controlled Affiliates shall, directly or indirectly, engage in any Competing Activity or own any equity interest in any Person that engages in any Competing Activity.  For purposes of this Section 6.24, “ Competing Activity ” shall mean providing investment management services, including in respect of index products, on a discretionary or advisory basis, to third party governmental or large institutional clients or publicly offered Funds, of the type provided by the Transferred Entities as at the date of this Agreement.  The restrictions contained in this Section 6.24 do not apply to ABSA Bank Limited or any of its Subsidiaries for such time as they are not Controlled by a member of the Parent Group.
 
(b)            Notwithstanding anything in this Section 6.24 to the contrary, no member of the Parent Group shall be precluded from, directly or indirectly:
 
   (i)           owning any equity interest in any Person that engages in a Competing Activity, as a result of or otherwise in connection with:  (x) any acquisition transaction in which
 

 
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any member of the Parent Group is acquiring, directly or indirectly, one or more businesses engaged in any activity in addition to a Competing Activity; provided that such Competing Activity by value is less than 25% of the value of the business or businesses being acquired; or (y) the enforcement of a security interest held as a result of engaging in an otherwise permissible activity; provided that Seller shall, or shall cause such applicable member of the Parent Group to, as soon as reasonably practicable after acquiring the assets constituting the Competing Activity or secured by such security interest, and on a basis consistent with maximizing value in the ordinary course, divest itself of such assets (with Buyer having the right to participate, as a potential purchaser of such assets, in the divestiture process), unless such member of the Parent Group would otherwise not be prohibited from holding such assets pursuant to this Section 6.24.  Notwithstanding the foregoing, the Parent Group shall continue to be able to own any equity interests relating to activities conducted as the date of this Agreement, or otherwise permitted to be held pursuant to this Section 6.24, as a result of internal restructuring transactions by, between or among members of the Parent Group;
 
   (ii)          engaging, or owning an interest, in any type of business that any member of the Parent Group is engaged in as of the date of this Agreement (regardless of the legal form or Person through which such business may be conducted from time to time and including, for the avoidance of doubt and without limitation, the exchange-traded notes business marketed under the iPath brand as of the date of this Agreement); provided , however , that the foregoing shall not permit the members of the Parent Group to (A) substantially expand the scale or scope of any such business that constitutes discretionary management of assets invested in passive index replication strategies which relate to broad based indices and which any of the Transferred Entities promote, issue or manage as of the date of this Agreement or are in all material respects of the same type as the foregoing or (B) promote, issue, construct or manage ETFs or any exchange-traded security that has index, portfolio or return reference characteristics substantially similar to any ETF managed by any of the Transferred Entities on the date of this Agreement (other than exchange-traded securities, funds or structured products promoted, issued, constructed or managed by any member of the Parent Group and outstanding on the date of this Agreement or to the extent that exchange-traded securities, funds or structured products are targeted and offered to particular clients) ( provided, further, that such restrictions shall not prevent the Parent Group from using any other third party as an advisor or sub-advisor in the same or more extensive manner as they use the Transferred Entities, for any product or mandate not otherwise prohibited by this Section 6.24);
 
   (iii)          operating as part of the Barclays Wealth business, a proposed joint venture in Japan with Sumitomo-Mitsui Banking Corporation;
 
   (iv)          working with any asset manager in relation to their ongoing asset management activities and entering into agreements with any such asset manager to distribute products or provide services to such asset manager or any customer of Parent or its Specified Controlled Affiliates;
 
   (v)          without prejudice to and without limiting sub-Section (ii) above, owning any equity interest in any Person that engages in a Competing Activity (A) in the ordinary course
 

 
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of business of any member of the Parent Group; provided that such equity interest constitutes less than 15% of the equity interests of such Person and such ownership provides no rights to Control such Person; or (B) on behalf of third parties or funds or accounts managed by any member of the Parent Group (aa) in which the proprietary interest of the members of the Parent Group does not exceed 25% or (bb) if the fund or account in question is not expected to invest more than 25% of its assets in any one investment and does not have capital commitments in excess of $2 billion; or
 
   (vi)          promoting any of the foregoing.
 
Section 6.25           Cooperation .
 
(a)            Seller and Buyer shall use reasonable efforts to identify third parties in which both (i) a Transferred Entity and (ii) Buyer or one of its Affiliates or any direct or indirect interest holder in Buyer have a beneficial ownership interest, whether of a proprietary or a fiduciary nature (any such third party, a “ Identified Third Party ”) and in connection therewith cooperate in preparing any dispositions, filings or notices that are required as a result of the potential aggregation in ownership that may result upon the consummation of the transactions contemplated hereby under any Law applicable to such Identified Third Party, the organizational documents of such Identified Third Party or any publicly available Contract relating to such Identified Third Party.
 
(b)            Buyer shall be provided a reasonable opportunity to review all materials to be used by the Seller in connection with obtaining consents and approvals under Section 6.6, Section 6.9 and Section 6.10 prior to distribution.  Seller or the Transferred Entities, as applicable, shall promptly upon their receipt make available to Buyer copies of any and all substantive correspondence between it and Clients or representatives or counsel of such Clients relating to the consent solicitation provided for in Section 6.6, Section 6.9 and Section 6.10.
 
(c)            In connection with obtaining the Client consents and other actions required by Section 6.6, Section 6.9 and Section 6.10 at all times prior to the Closing, Seller or the Transferred Entities, as applicable, shall take reasonable steps to keep Buyer informed of the status of obtaining such Client consents and, upon Buyer’s request, make available to Buyer copies of all such executed Client consents and make available for Buyer’s inspection the originals of such consents and any related materials, such as telephone logs and other records relating to the Client consent process.
 
(d)            Each of Parent and Seller acknowledges that Buyer intends to arrange financing for a portion of the Cash Purchase Price, which financing arrangements are set forth in Exhibit E.  Each of Seller and Buyer shall cooperate in good faith to complete such financing on such terms and conditions.
 
(e)            Between the date hereof and the Closing, the Parties will work together in good faith to consider alternative structures for the transaction contemplated by this Agreement which may be more advantageous.
 

 
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(f)            Seller and Buyer acknowledge that each has in the past and currently continues to provide high quality services on a competitive basis to the other and to the other’s Clients. The Parties confirm their intention to seek further opportunities to provide services on a competitive basis to one another and, where appropriate, one another’s Clients and to thereby enhance and make more efficient their respective businesses and their ability to serve their Clients.  The Parties anticipate that they will be able to develop their relationships over a range of services and business areas.  For the purposes of facilitating discussions, Seller will appoint Thomas P. Humphrey as a key contact and Buyer will appoint Robert S. Kapito for the same purpose. Seller and Buyer also confirm their recognition that many of the services their business units provide are fiduciary in nature and subject to various Laws, and that each of them undertakes to act at all times in accordance with all applicable duties to their Clients and all applicable Laws.
 
Section 6.26           Pre-Closing Transactions .
 
(a)            Prior to the Closing, (i) Seller shall form, or cause to be formed, each New Transferred Entity; (ii) Seller shall, and shall cause its Subsidiaries to, transfer to Brazil Company all assets of Banco Barclays S.A., a company organized under the Laws of Brazil, that are primarily related to the BGI Business, (iii) Seller shall cause Finance Limited and HK Holdings to incorporate a new entity (“ Mexico Services ”) and the entity which currently employs the Mexican employees shall transfer those employees to Mexico Services; (iv) Seller shall form Chile Holdings and Chile Company and Chilean assets of the BGI Business shall be transferred to Chile Company and (v) Seller shall cause UK Company to transfer (by distribution, sale or otherwise) the equity securities it owns in Japan Company (which equity securities comprise 9.5% of the issued and outstanding equity securities of Japan Company) to UK Holdings.
 
(b)            Notwithstanding anything to the contrary herein, but subject to any existing contractual restrictions, with respect to that certain leased property located at South Building, Royal Mint Court, East Smithfield Street, London EC3, Seller and Affiliates of Seller covenant and agree that Seller, as the tenant under the said lease, shall use commercially reasonable efforts to enter into a commercially reasonable sublease agreement with a Transferred Entity substantially with (i) the same terms as the space in the said property is currently occupied or used by any Transferred Entity, and (ii) commercially reasonable space sharing provisions customary for such agreements, which sublease shall be transferred to Buyer without any additional cost.
 
(c)            Notwithstanding anything in this Agreement to the contrary, including Section 6.1(f), prior to the Closing, but subject to Section 6.31, to the extent permitted under applicable Law, Seller shall have the right to cause the Transferred Entities to distribute, pay as dividend or otherwise transfer any amount of cash to any Affiliate of Seller.  Furthermore, subject to Section 6.31, prior to the Closing, to the extent permitted under applicable Law, Seller shall cause California Corporation, or if applicable, Delaware Holdings, to distribute to Finance Limited, in redemption or repurchase of shares, an amount of cash equal to the total amount of cash held by California Corporation and its Subsidiaries.
 

 
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(d)            Seller and Parent are permitted to carry out the transfers and other transactions detailed in Section 6.26 of the Seller’s Disclosure Schedules (such transfers and transactions, collectively, the “ Restructuring ”).  In completing the Restructuring, Seller and Parent shall be permitted to materially modify and materially deviate from the terms of Section 6.26(d) of the Seller’s Disclosure Schedules only so long as Buyer consents in writing (which consent shall not be unreasonably withheld, conditioned or delayed), except that such consent shall not be required in relation to any cash distribution not otherwise prohibited by this Agreement (whether as a dividend, return of capital, share buyback or share redemption).  For the avoidance of doubt, it is understood and agreed the transactions contemplated by Section 6.26 of the Seller’s Disclosure Schedules may be effected at any time prior to the Closing and any time between the steps of the Closing.
 
(e)            (1)         Seller shall cause each Regulated Entity to have (A) Closing Actual Cash equal to or greater than its Closing Required Regulatory Cash (such requirement, the “ Closing Regulatory Cash Requirement ”) and (B) Closing Actual Capital equal to or greater than its Closing Required Regulatory Capital (such requirement, the “ Closing Regulatory Capital Requirement ”), in each case immediately prior to the Closing.  Seller shall cause (1) each Regulated Entity Group and (2) the Remaining Unregulated Entities, taken as a whole, to have Closing Net Working Capital greater than zero (0) as of immediately prior to the Closing and shall cause each Unregulated Entity that is a Subsidiary of US Bank to have positive shareholders’ equity as determined in accordance with GAAP (such requirements, the “ Closing Net Working Capital Requirement ”).
 
   (ii)           Prior to the Closing Seller shall be permitted to cause each Transferred Entity to distribute to Parent or one of its Subsidiaries a note payable by such Transferred Entity to Parent or any such Subsidiary in an amount equal to Seller’s good faith estimate of the positive amount of Net Working Capital of such Transferred Entity, together with any unpaid dividends, (a “ Closing Intercompany Loan ”) immediately prior to the Closing.  Each Closing Intercompany Loan shall be reasonably satisfactory in form and substance to Buyer and shall include (or in the case of declared dividends be subject to) the following terms:
 
    (A)            an obligation to make payments on such Closing Intercompany Loan from time to time (I) with respect to amounts received in respect of Unpaid Receivables of a Transferred Entity that is the obligor of such Closing Intercompany Loan (or is a Subsidiary of such obligor) or a member of a Regulated Entity Group that is the obligor, not later than 30 days after receipt and in an amount equal to the amount received (net of any Tax Extraction Costs), if any, in respect of such amount computed by treating the recipient of the proceeds from collection of such Unpaid Receivables as the relevant Transferred Entity and (II) with respect to amounts not theretofore paid, the remaining unpaid amount of such Closing Intercompany Loan (net of Tax Extraction Costs in respect of payments on such Closing Intercompany Loan, computed in the same manner as set forth in the parenthetical to clause (I) of this Section 6.26(e)(ii)(A)), on the first anniversary of the Closing, in the case of each of clauses (I) and (II), subject to Section 2.3(a)(viii).
 

 
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    (B)            such instrument shall be an unsecured general obligation of the issuer;
 
    (C)            such instrument shall be non-interest bearing; and
 
    (D)            such instrument shall be non-transferable (except to Buyer or its Affiliates as provided in Section 2.3(a)(v) or 6.26(m) or between or among Seller and its Affiliates).
 
(f)            Notwithstanding anything to the contrary herein, with respect to (i) the property referred to as The Atrium at Orchard, Singapore, Singapore, (ii) the property located at 10901 Rancho Cordova, California, USA and (iii) the properties located at Northolt GEM, London, United Kingdom and 5 North Colonnade, London, United Kingdom, Seller and Affiliates of Seller covenant and agree that Seller or its Affiliates, as the tenants, licensees, or occupants, as applicable, under such leases, occupancy agreements, licenses, or any other agreements giving occupancy rights, as applicable, shall enter into commercially reasonable subleases or service agreements, as applicable with a Transferred Entity substantially with the same terms as the space in such property is currently occupied or used by any Transferred Entity.
 
(g)            Notwithstanding anything to the contrary herein, with respect to the property located at 21 Boulevard de la Madelaine, Paris, France, Seller and Affiliates of Seller covenant and agree that the Transferred Entities currently occupying any space in such property shall relocate to a new property on or before the Closing, provided, however, that such new agreement (including, without limitation, lease, sublease, license, service agreement or any other occupancy agreement) (i) shall provide for a Transferred Entity’s occupancy of the new lease space through an assignment, sublease or otherwise, at Buyer’s sole discretion, and (ii) shall not be entered into without the Buyer’s consent, which consent shall not be unreasonably withheld.
 
(h)            Notwithstanding anything to the contrary herein, with respect to the premises occupied in that certain property commonly referred to as Ebisu Prime Square Tower, located at 1-1-39, Hiroo, Shibuya-Ku, Tokyo, Japan, Seller and Affiliates of Seller covenant and agree that the Transferred Entities shall vacate the Ebisu Prime Square Tower premises and relocate to that certain property commonly known as the Marunouchi Trust Tower, located at T1-8-3 Marunouchi, Chiyoda-ku, Tokyo, Japan. Seller and Affiliates of Seller agree that the Transferred Entities currently occupying any space in the Ebisu Prime Square Tower shall not enter into any new agreement giving occupancy rights (including, without limitation, modifications, extensions, leases, subleases, licenses, service agreements or any other occupancy agreements) for the continuation of the Ebisu Prime Square Tower operations without the Buyer’s consent, which consent shall not be unreasonably withheld.
 
(i)            With respect to those data centers referred to as Australia – Apollo Place and Toronto – Brookfield Homes in Section 4.21 of the Seller’s Disclosure Schedule, Seller and Affiliates of Seller currently occupying any space in such properties covenant and agree that Seller or Affiliates of Seller shall not enter into any new agreements giving occupancy rights (including, without limitation, modifications, extensions, leases, subleases, licenses, service
 

 
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agreements or any other occupancy agreements) for the continuation of the current operations without the Buyer’s consent, at Buyer’s sole discretion.
 
(j)            At or prior to the Closing, Seller shall cause all of the Cash Fund Support Agreements to be executed and thereafter shall use reasonable best efforts to deliver the Cash Fund Support Agreement to the beneficiaries thereof.  Buyer and Seller agree that the various intra-group guarantees, support agreements, letters of comfort and other arrangements between Seller and its Affiliates and various Transferred Entities, which for the avoidance of doubt do not include the Cash Fund Support Agreements, will terminate on and as of the Closing Date.  Prior to the Closing Date, Buyer shall work with the Transferred Entities to ensure that, on and after the Closing Date, each such arrangement is replaced as of such date by alternative arrangements to the extent deemed appropriate by Buyer.  For greater certainty, except as provided in Section 6.30, neither Seller nor any of its Affiliates shall be obligated to provide any guarantee, support agreement, letter of comfort or other arrangement for the benefit of a Transferred Entity from and after the Closing Date.  Buyer and Seller shall, and shall cause any Affiliate which is a party to a Cash Fund Support Agreement or a provider of a Guarantee to, abide by the procedures set forth on Exhibit I for the filing of claims with respect to the Cash Fund Support Agreements and Guarantees.
 
(k)            Subject to the execution and delivery of the Cash Support Agreements, prior to the Closing, Seller shall have the right to terminate, or cause to be terminated, certain contribution reimbursement agreements or contribution repayment deeds between Seller or any of its Affiliates, other than the Transferred Entities, on the one hand, and any Transferred Entity, on the other hand, that provides for reimbursement in respect of certain cash support arrangements that are in effect as of the date of this Agreement or the Cash Fund Support Agreements entered into by Seller or one of its Affiliates, other than the Transferred Entities, for the benefit of certain cash funds (the “ Existing Reimbursement Agreements ”).
 
(l)            Seller shall, or shall cause each Transferred Entity and their respective Affiliates to, take on or prior to the day prior to the Closing Date all actions contemplated by this Agreement that in any way impact or affect:  (i) the calculation of Net Working Capital with respect to any Transferred Entity, (ii) the Closing Financial Statements or (iii) the Capital Statements; provided , however , that notwithstanding anything in the foregoing to the contrary, this Section 6.26(l) shall not apply with respect to (x) actions taken by Seller or any of its Affiliates in the ordinary course consistent with past practice and in compliance with the terms of this Agreement, (y) actions taken by Seller or any of its Affiliates with the consent of Buyer (which consent shall not be unreasonably withheld, conditioned or delayed) or (z) the merger of California Corporation with and into Delaware Holdings, and provided , further , that Seller shall be permitted to cause Delaware Holdings to take such actions necessary to effect the transfer, in the manner agreed to by Buyer and Seller prior to the Closing Date, of the Novation Accounts to Finance Limited on the Closing Date  prior to the Closing; provided , that the transfer of the Novation Accounts to Finance Limited shall be deemed to have occurred on the day prior to the Closing, and so shall be taken into account, for purposes of (i) the calculation of Net Working Capital with respect to the Transferred Entities, (ii) the Closing Financial Statements and (iii) the Capital Statements.
 

 
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(m)            If, after payment of all amounts required to be paid under Section 2.3(d) (with respect to a Refund Intercompany Loan) or Section 6.26(e)(ii) (with respect to a Closing Intercompany Loan), there remains unpaid any principal amount of a Refund Intercompany Loan or Closing Intercompany Loan, such loan shall be transferred to Buyer (or, as designated by Buyer, an Affiliate or Affiliates of Buyer) promptly after the earlier of (i) December 31, 2011 (with respect to any Refund Intercompany Loans) or the first anniversary of the Closing Date (in the case of any Closing Intercompany Loan) and (ii) the date on which all such amounts required to be paid on such Refund Intercompany Loan or Closing Intercompany Loan have been paid, in each case as an adjustment to the purchase price with respect to the relevant Transferred Entity.  The foregoing provisions shall be reflected in the documentation evidencing a Refund Intercompany Loan or a Closing Intercompany Loan.
 
Section 6.27            Notification of Certain Matters .
 
(a)            Between the date hereof and the earlier of the Closing Date and the termination of this Agreement in accordance with its terms,
 
   (i)            Seller shall use reasonable best efforts to give reasonably prompt notice to Buyer of any notice or other written communication from any third party alleging that the consent, approval or waiver of such third party is or may be required in connection with the transactions contemplated by this Agreement other than any such required consent, approval or waiver that has been disclosed in Seller’s Disclosure Schedules; and
 
   (ii)            Buyer shall use reasonable efforts to give reasonably prompt notice to Seller of any notice or other written communication from any third party alleging that the consent, approval or waiver of such third party is or may be required in connection with the transactions contemplated by this Agreement other than any such required consent, approval or waiver that has been disclosed in Buyer’s Disclosure Schedules.
 
(b)            For purposes of this Agreement, the failure to comply in all material respects with the provisions of this Section 6.27 shall not, (i) in the case of Seller’s failure to comply with Section 6.27(a)(i) in all material respects, result in the failure of the condition set forth in Section 7.2(b), or (ii) in the case of Buyer’s failure to comply with Section 6.27(a)(ii) in all material respects, result in the failure of the condition set forth in Section 7.3(b).
 
Section 6.28            Financial Statements .
 
(a)            At least 60 days prior to the Closing, Seller shall deliver to Buyer an audited combined balance sheet of the Transferred Entities as of December 31, 2008, December 31, 2007 and December 31, 2006 (the “ Audited Balance Sheets ”) and the audited combined statement of income, combined statement of changes in equity and combined statement of cash flows for the Transferred Entities for the year ended December 31, 2008, December 31, 2007 and December 31, 2006 (together with the Audited Balance Sheets, the “ Audited Financial Statements ”), together with an unqualified (except for qualifications resulting from application of new accounting pronouncements or solely as a result of reclassification of elements of the financial statements with no net impact to operating and non-operating revenues and expenses)
 

 
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audit report of Seller’s independent accountants, with respect to the Audited Financial Statements.  The Audited Financial Statements shall be prepared in each case, in accordance with GAAP and the requirements of Regulation S-X of the Exchange Act applicable to the Transferred Entities.
 
(b)            For the fiscal quarter ending on September 30, 2009, Seller shall use its reasonable best efforts to deliver to Buyer no later than November 30, 2009 the unaudited combined balance sheet of the Transferred Entities as of the last day of such fiscal quarter and the unaudited combined statement of income, combined statement of changes in equity and combined statement of cash flows for the Transferred Entities for such fiscal quarter and the year-to-date period then ended (including for the comparable quarter and the comparable year-to-date periods for the prior year) in each case, in accordance with GAAP and the requirements of Regulation S-X of the Exchange Act.  Seller shall have its independent accountants review such financial statements.
 
(c)            (i)  If Closing occurs on January 1, 2010, Seller shall use its reasonable best efforts to deliver to Buyer by March 15, 2010 an audited combined balance sheet of the Transferred Entities as of December 31, 2009, and the audited combined statement of income, combined statement of changes in equity and combined statement of cash flows for the Transferred Entities for the year ended December 31, 2009 (collectively, the “ 2009 Year End Financial Statements ”), together with an unqualified (except to the extent such qualification relates to the basis of presentation)) audit report of Seller’s independent accountants, with respect to the 2009 Year End Financial Statements.  The 2009 Year End Financial Statements shall be prepared in accordance with GAAP and the requirements of Regulation S-X under the Exchange Act applicable to the Transferred Entities.
 
(d)            If the Closing occurs on December 1, 2009, Seller shall cause to be prepared and delivered to Buyer (i) by January 15, 2010, the combined audited balance sheet of the Transferred Entities as of the Closing Date prepared in accordance with U.S. GAAP based on audit procedures reasonably determined by Seller and its independent accountants after consultation with Buyer (the “ Audited Closing Balance Sheet ”), and (ii) by March 1, 2010, the unaudited combined statement of income, combined statement of changes in equity and combined statement of cash flows for the Transferred Entities for the 11 month period ended on the Closing Date with respect to the Closing prepared in accordance with GAAP and, to the extent applicable, Regulation S-X of the Exchange Act (together with the Audited Closing Balance Sheet, the “ Closing Financial Statements ”).  Seller shall use its reasonable best efforts to have the Closing Financial Statements reviewed by Seller’s independent accountants.
 
(e)            In connection with preparing the Closing Financial Statements or the 2009 Financial Statements, as applicable, Buyer will make fully available to Seller (i) employees of Buyer who were Employees and were responsible for preparation of financial statements prior to Closing (ii) all information required and (iii) access to all necessary systems to assist Seller in the preparation of such financial statements.  If Buyer shall fail to provide such assistance, Seller’s obligations under this paragraph (e) shall not apply.  Seller shall bear all costs incurred in preparing the Closing Financial Statements and 50% of the costs in preparing the 2009 Year End
 

 
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Financial Statements and Buyer shall bear the rest, except that in each case Seller shall have no obligation to pay any costs associated with employees of Buyer and its Affiliates.  In addition, as a condition to delivery of any such financial statements, Buyer shall make available the appropriate employees of the Transferred Entities to execute any required representation letters necessary in connection with such financial statements.  Buyer will also take any reasonable actions that Seller requests in connection with the preparation of such financial statements, including all actions reasonably requested by Seller’s independent accountants.
 
(f)            Seller shall use its reasonable best efforts to cause to be prepared and delivered to Buyer, by August 15, 2009, the unaudited combined balance sheets of the Transferred Entities as of June 30, 2009 and the unaudited combined statement of income for the Transferred Entities for the six month period ended June 30, 2009 (collectively, the “ Half Year Financial Statements ”).  The Half Year Financial Statements shall be prepared in accordance with IFRS.  Seller shall use its reasonable best efforts to cause to be prepared and delivered to Buyer, by August 31, 2009, the unaudited reconciliation of the Half Year Financial Statements from IFRS to GAAP.
 
(g)            From and after the date hereof and prior to the Closing, Seller will provide Buyer reasonable access to Employees and such other of Seller’s employees to whom access is reasonably necessary for the purposes of integrating accounting functions and information reasonably requested in connection with assisting Buyer in preparing its financial statements for the year ended December 31, 2009.
 
Section 6.29           Corporate Actions .  (a) Prior to the Closing, Buyer shall file a Certificate of Designations of Series D Participating Preferred Stock of Buyer, substantially in the form set forth on Exhibit H, with the Secretary of State of the State of Delaware and (b) immediately prior to the Closing cause its Board of Directors to adopt a resolution to increase the size of its Board of Directors from 17 directors to 19 directors and appoint two nominees of Seller to fill such vacancies.
 
Section 6.30           Securities Lending Guarantees .
 
(a)            With the intent that the securities lending business of the Transferred Entities (as carried on in the two years up to June 16, 2009) will for a period of three years from and after the Closing Date not cease to have the opportunity to continue to (i) operate on a basis and a scale consistent with how it was operated in the two years up to June 16, 2009, and (ii) grow organically (i.e., not by virtue of the acquisition of an unrelated asset manager) in that three year post-Closing period, Seller and Buyer agree as set out in the remaining provisions of this Section 6.30 provided that nothing in this Section 6.30 shall require the Seller to act other than as a reasonable and prudent bank would be expected to act in discharging its commitments as set out in this Section 6.30.  This Section 6.30(a) will operate as a guiding principle to the interpretation and application of the remaining provisions of this Section 6.30.
 
(b)            Seller agrees that it will continue to provide, at the request of various of the Transferred Entities, in the ordinary course of business and subject to satisfaction of its usual credit review and other procedures in connection with this type of business and compliance with
 

 
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all applicable legal and regulatory requirements, for a period of three years from and after the Closing Date, guarantees and indemnities for the benefit of selected securities lending clients (“ Securities Lending Clients ”) of such Transferred Entities in return for a payment from the Transferred Entities (payable monthly) equal to two basis points per annum of the value of the loaned securities as of the last day of the month in respect of which payment is being made.  Seller’s obligations to a Securities Lending Client will continue to be evidenced by an instrument by way of deed poll in the form currently in use (subject to any changes as may be required by applicable Law or as may otherwise be agreed to by Seller and Buyer), governed by English law and running to the benefit of the Securities Lending Client (a “ Guarantee ”) that provides, among other things, that the Seller guarantees the payment of and indemnifies the Securities Lending Client against all Losses (as defined in the applicable Guarantee) incurred by the Securities Lending Client resulting from a default by one or more of the borrowers that participate in the securities lending program administered by a specified Transferred Entity.  The Guarantees outstanding as of the Closing will generally continue to provide, among other things, that they are terminable by Seller upon 30 business days’ notice to the Securities Lending Client, and Guarantees issued after the Closing Date will provide that they will be terminable by Seller upon 45 days’ notice to the Securities Lending Client.  Seller agrees that notwithstanding the terms of the Guarantees outstanding on the Closing Date, from and after such date, it will provide Securities Lending Clients 45 days’ notice of its termination of a Guarantee or such longer notice period as may be provided therein.  The parties agree that references to “business days” in this Section 6.30 shall mean only those days on which banks are generally open for business in London.
 
(c)            Seller and Buyer have agreed to a Service Level Agreement.  Seller and Buyer have agreed, as between themselves, that the Transferred Entities will act such that the total liability of Seller from time to time under any and all Guarantees shall be limited so that:
 
   (i)            the value of securities that have been loaned through programs arranged by the Transferred Entities from time to time (to the extent that the Guarantees apply in relation to such lending) is no greater than $70 billion (for this purpose “value” being the marked-to-market value of the securities at the point of lending); and
 
   (ii)            Seller’s “Exposure at Default” under the Guarantees, calculated for the purposes of BIPRU 5.4.27R, in respect of such lending can be no more than $4.35 billion; provided, however, that such exposure at default amount calculated under BIPRU 5.4.27R shall not limit Seller’s potential liability under the Guarantees to the beneficiaries thereof (without prejudice to any rights Seller may have against Buyer pursuant to or in respect of either or both this Section 6.30 and the Service Level Agreement referred to in this Section 6.30).
 
   ((i) and (ii) together being the “ Guarantee Cap ”).
 
(d)            If the Guarantee Cap is reached, Seller and Buyer may jointly agree to increase the Guarantee Cap. In the event that the Guarantee Cap is reached and unless and until Seller and Buyer agree to increase the Guarantee Cap, Seller shall (x) be entitled to terminate any Guarantees (subject to the termination provisions of the applicable Guarantee) but only to the
 

 
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extent necessary to reduce the total indemnified loan balances to an amount that results in the Guarantee Cap not being exceeded and (y) not be required to accept any further requests for Guarantees; provided, however, that to the extent Seller does not exercise its right to terminate any Guarantees as aforesaid, Seller’s obligations under any Guarantees put in place prior to reaching the Guarantee Cap will be discharged in full under the terms of the relevant Guarantee (subject to the other provisions of this Section 6.30 and the Service Level Agreement referred to in this Section 6.30). For the avoidance of doubt, Seller’s potential liability to the beneficiary of each Guarantee under that Guarantee is limited to the losses incurred as set forth in each Guarantee, and such amounts may exceed the Guarantee Cap (subject to the other provisions of this Section 6.30 and the Service Level Agreement referred to in this Section 6.30).
 
(e)            All authority of the Transferred Entities and their respective directors, officers, employees and agents to approve, execute and deliver Guarantees (and otherwise to act in respect of the Guarantees) for or on behalf of Seller and any of its Affiliates (whether by the power of attorney of Seller dated as of March 30, 2009 or otherwise) is hereby revoked with effect from the Closing and Buyer acknowledges such revocation on behalf of the Transferred Entities.
 
(f)            Buyer shall indemnify Seller against any and all liabilities under any existing Guarantee that Buyer or the applicable Transferred Entity cannot demonstrate was known to the Group Treasury function of Seller on or before November 20, 2009.  For this purpose and without limitation, e-mails and other correspondence from any employee of any Transferred Entity to any employee of the Seller’s Group Treasury or Group Legal functions shall constitute satisfactory evidence.
 
(g)            Seller’s obligations in respect of the Guarantees shall only apply in respect of transactions that are subject to rights of daily recall and accordingly Buyer will indemnify Seller in respect of any liabilities actually incurred by Seller under any Guarantees in respect of transactions that are not subject to rights of daily recall.
 
Section 6.31           Closing Cash .
 
(a)            Seller agrees that as of immediately after giving effect to the Closing each Regulated Entity shall hold Closing Actual Cash equal to not less than its Closing Required Regulatory Cash.
 
(b)            Seller and its Affiliates shall use commercially reasonable efforts to distribute or transfer in the manner contemplated in this Agreement, out of each Transferred Entity prior to Closing all cash or other short term liquid investments in excess of the amount of cash and short term liquid investments needed to satisfy (i) the Closing Regulatory Cash Requirement, (ii) the Closing Regulatory Capital Requirement and (iii) the Closing Net Working Capital Requirement.
 
Section 6.32           German Company Certificate .  Seller has informed Buyer that (i) Germany Company issued a share certificate (Globalurkunde) extending to all issued shares of Germany Company to Germany Holdings on February 8, 2007, (ii) a copy of the share certificate and the original notification related thereto are in German Holdings’ files, (iii) the
 

 
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original share certificate has been lost and (iv) Germany Holdings has initiated a proceeding with the applicable court in Munich to cancel such share certificate (“für kraftlos erklären”) so that a replacement share certificate may be issued.  Seller shall use its reasonable best efforts to procure that, as soon as reasonably practicable, (i) the cancellation process is completed, (ii) Germany Company issues a new share certificate to Germany Holdings and (iii) Seller provides Buyer with evidence to that effect; provided, that if Seller has not provided the new share certificate to Buyer by the Closing, then the Buyer shall, acting reasonably, co-operate with the Seller and take all reasonable and necessary steps to ensure that the new share certificate is issued by Germany Company to Germany Holdings following the Closing, whereby, however, Seller shall bear all reasonable costs related thereto.  Notwithstanding the above, Seller remains fully liable for any failure to transfer, indirectly by transfer of all shares in Germany Holdings, all shares in Germany Company to Buyer or its designee at Closing (it being understood and agreed that any such failure shall not be a basis on which Buyer may refuse to close under this Agreement).
 
Section 6.33           Anti-Takeover .  If any “business combination,” “fair price,” “moratorium,” “control share acquisition” or other similar anti-takeover statute or regulation is or may become applicable to the Purchase or the other transactions contemplated by this Agreement, Buyer and its board of directors shall grant such approvals and take such actions as are necessary so that such transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise act to eliminate the effects of such statute or regulation on such transactions.
 
Section 6.34           Further Assurances .  (a) Each of the parties to this Agreement shall use reasonable best efforts to take all actions and to do all things reasonably necessary, proper or advisable to consummate the transactions contemplated by this Agreement, including using reasonable best efforts to ensure that (a) such party’s representations and warranties remain true and correct in all material respects through the Closing and (b) the conditions to the obligations of the other party to this Agreement to consummate the transactions contemplated by this Agreement are satisfied.
 
(b)            Following the Closing, upon the reasonable request of any party or parties hereto, the other parties hereto, as the case may be, agree to promptly execute and deliver such further instruments of assignment, transfer, conveyance, endorsement, direction or authorization and other documents as may be requested to effectuate the purposes of this Agreement, the Ancillary Agreements and the transactions contemplated hereby and thereby.  In no event, however, shall Buyer or any of its Affiliates be required to enter into any closing agreement pursuant to Treasury Regulation Section 1.1503-2(g)(iv)(B)(3).
 
(c)            In the event that following the Closing there shall be any EOP Option outstanding, Seller shall, as promptly as reasonably practicable, and, if and to the extent possible, prior to settlement or exercise of any EOP Option, furnish information satisfactory to Buyer to establish the identity of the person exercising such EOP Option, the amount includible in such person’s income and any other information that Buyer may reasonably require as is related to the exercise, settlement or payment of such EOP Option.  Seller shall deduct from amounts otherwise payable in respect of any EOP Option (including, without limitation, any amounts paid
 

 
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under Seller’s call right with respect to such EOP Options) an amount sufficient to completely satisfy any withholding Tax obligations attributable to the exercise, settlement or payment of such EOP Option, and promptly, but in any case not later than 5 days prior to the due date on which such amounts are required to be remitted to the relevant Government Entity, cause the amounts so deducted to be deposited and settled in the designated account or accounts of Buyer (or, as directed by Buyer, of an Affiliate of Buyer).  In addition, Seller shall promptly, but in any case not later than 5 days prior to the due date on which the amounts described in this sentence are required to be remitted to the relevant Government Entity, cause to be deposited and settled in the designated account or accounts of Buyer (or, as directed by Buyer, of an Affiliate of Buyer)the amount of any required employer portion of U.S. Federal, state, local and foreign payroll Taxes payable in respect of the exercise, settlement or payment of any EOP Option. Buyer shall promptly remit, or shall cause Buyer’s Affiliate to promptly remit, the withholding Tax obligations and employer portion of U.S Federal, state, local and foreign payroll Taxes payable described in this paragraph to the relevant Government entity no later than the due date on which the amounts described in this paragraph are required to be remitted.
 
 
ARTICLE VII
 
CONDITIONS TO THE CLOSING
 
Section 7.1             Conditions to the Obligations of Buyer and Seller with respect to the Closing .  The obligations of the parties to this Agreement to effect the Closing are subject to the satisfaction (or waiver agreed to in writing by Buyer and Seller) prior to the Closing of the following conditions:
 
(a)             HSR Act .  The waiting period applicable to the consummation of the transactions contemplated by this Agreement under the HSR Act shall have expired or been terminated.
 
(b)             EC Merger Regulation.   To the extent that a filing is required under the EC Merger Regulation, the European Commission deciding that the transaction contemplated by this Agreement is compatible with the common market pursuant to Article 6(1)(b) or 8(1) or 8(2) of the EC Merger Regulation without attaching to its decision any conditions or obligations or the European Commission being deemed to have done so under Article 10(6) of the EC Merger Regulation.  In the event that the European Commission refers the transaction contemplated by this Agreement or any parts thereof to one or more relevant authorities of the Member States  in accordance with Article 4(4) or Article 9 of the EC Merger Regulation, the competent authority of each Member State to which the transaction has been referred, in whole or in part, approving (or being deemed to have approved) the transactions contemplated by this Agreement.
 
(c)             Other Antitrust Approvals.   All other approvals, clearances, filings or waiting periods or consents of Government Entities required under all Antitrust Laws applicable to the transactions contemplated by this Agreement shall have expired or been made or received, as the case may be.
 

 
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(d)             Parent Shareholder Approval .  Parent shall have obtained the Parent Requisite Vote.
 
(e)             Revenues .  (i) The Closing Adjustment Revenue Run Rate shall be equal to or greater than 75% of the Base Revenue Run Rate and (ii) the Closing Adjustment ETF Revenue Run Rate shall be equal to or greater than 75% of the Base ETF Revenue Run Rate.
 
(f)             Compliance with Section 15(f) .  At least 75% of the board of trustees or board of directors, as applicable, of each Fund that is registered under the Investment Company Act shall not be “interested persons” (as that term is defined in the Investment Company Act and interpreted by the SEC) of Seller, Buyer, any of their respective Subsidiaries or any of their respective affiliated persons.
 
Section 7.2             Conditions to the Obligation of Buyer with respect to the Closing .  The obligation of Buyer to effect the Closing is subject to the satisfaction (or waiver in writing by Buyer) prior to the Closing of the following conditions:
 
(a)             Representations and Warranties .  Each of the representations and warranties of Seller set forth in Section 3.1 (Organization and Qualification), Section 3.3 (Corporate Authority), Section 3.4 (Binding Effect), Section 3.6(a)(i) (Non-Contravention), Section 3.6(b) (Non-Contravention), Section 3.8 (Finders’ Fees), Section 4.1 (Organization and Qualification), the fifth and sixth sentences of Section 4.2(a) (Capitalization) and Section 4.4(a) (Non-Contravention), shall be true and correct in all material respects as of the date of this Agreement and as of the Closing as if made as of the Closing (except for such representations and warranties that are made as of a specific date, which shall speak only as of such date).  Each of the representations and warranties of Seller set forth in the first two sentences of Section 3.2 (Ownership) (other than with respect to Encumbrances, the representation and warranty concerning which shall be true and correct in all material respects) and the third and fourth sentences of Section 4.2(a) (Capitalization) shall be true and correct as of the date of this Agreement and as of the Closing Date as if made as of the Closing Date (except for such representations and warranties that are made as of a specific date, which shall speak only as of such date) except where the failure of such representations and warranties to be true and correct is not adverse in any respect to Buyer.  Each of the other representations and warranties of Seller set forth in Article III and Article IV of this Agreement shall be true and correct as of the date of this Agreement and as of the Closing Date as if made as of the Closing Date (except for such representations and warranties that are made as of a specific date, which shall speak only as of such date) except where the failure of such representations and warranties to be true and correct has not had, individually or in the aggregate, a Material Adverse Effect ( provided that any materiality or “Material Adverse Effect” qualifiers contained in individual representations or warranties shall be disregarded for this purpose except for those contained in Section 4.5(a); except for any references to materiality in Section 4.5, Section 4.8(a), Section 4.8(j), Section 4.10(v), Section 4.11 (only in respect of material Trade Secrets), Section 4.13(a), Section 4.13(b) (other than the references to “material to the Transferred Entities, taken as a whole”), Section 4.14, Section 4.17(i), Section 4.22 and Section 4.27.)
 

 
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(b)             Covenants .  Each of the covenants and agreements of Parent and Seller to be performed on or prior to the Closing shall have been duly performed in all material respects.
 
(c)             Certificate .  Buyer shall have received a certificate, signed by a duly authorized officer of Seller and dated as of the Closing Date, to the effect that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied (if not waived).
 
(d)             No Prohibition .  No Law shall be in effect (i) enjoining the Closing or enjoining the acquisition by Buyer or any of its Controlled Affiliates of any of the Transferred Entities, restraining or prohibiting the consummation of the transactions contemplated hereby, placing limitations on the ownership of shares of any of the Transferred Entities by Buyer or any of its Controlled Affiliates or the BGI Business; or (ii) prohibiting or limiting the ownership of the Transferred Entities by the Buyer or any of its Controlled Affiliates or the operation by the Transferred Entities or the Buyer or any of its Controlled Affiliates of any portion of any business or of any assets of the Transferred Entities or the BGI Business other than any Law of any such jurisdiction, the violation of which would not result in a Buyer Regulatory Impediment.
 
(e)             Required Approvals .  Buyer or one of its Controlled Affiliates or one of its Majority Stockholders shall have obtained, without any Buyer Regulatory Impediments, (i) each of the approvals set forth in Exhibit F and (ii) such other approvals of Government Entities required to consummate the Closing, the failure of which to obtain would result in a Buyer Regulatory Impediment.
 
(f)             Ancillary Agreements .  Seller and its applicable Affiliates shall have executed and delivered all of the Ancillary Agreements to which they are parties in all material respects in the forms attached to this Agreement.
 
(g)             Audited Financial Statements .  Seller shall have delivered to Buyer complete and correct copies of the Audited Financial Statements and the Interim Financial Statements, and the Audited Financial Statements for the year ended December 31, 2008 shall not differ from the 2008 Unaudited Financial Statements in any manner which would reasonably be expected to result in a Material Adverse Effect (it being agreed that any differences resulting from changing from IFRS to GAAP shall be disregarded for purposes of determining whether such changes constitute a Material Adverse Effect, for purposes of such comparison).
 
(h)             Employees .  At least 67% of the Persons set forth in the letter delivered to Seller by Buyer on June 11, 2009 shall remain employed by a Transferred Entity as of the Closing.
 
Section 7.3             Conditions to the Obligation of Seller with respect to the Closing .  The obligation of Seller to effect the Closing is subject to the satisfaction (or waiver in writing by Seller) prior to the Closing of the following conditions:
 
(a)             Representations and Warranties .  Each of the representations and warranties of Buyer set forth in Section 5.1 (Organization and Qualification), Section 5.2 (Capitalization), Section 5.3 (Corporate Authorization), Section 5.5(a) (Non-Contravention), Section 5.6 (Binding Effect) and Section 5.7 (Equity Consideration) shall be true and correct in all material respects as
 

 
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of the date of this Agreement and as of the Closing Date as if made as of the Closing Date (except for such representations and warranties that are made as of a specific date which shall speak only as of such date).  Each of the other representations and warranties of Buyer set forth in this Agreement shall be true and correct as of the date of this Agreement and as of the Closing as if made as of the Closing (except for such representations and warranties that are made as of a specific date which shall speak only as of such date), except where the failure of such representations and warranties to be true and correct has not had, individually or in the aggregate, a Buyer Material Adverse Effect ( provided that any materiality or Buyer Material Adverse Effect qualifications contained in individual representations or warranties shall be disregarded for this purpose except for those contained in Section 5.8(d)).
 
(b)             Covenants .  Each of the covenants and agreements of Buyer to be performed on or prior to the Closing shall have been duly performed in all material respects.
 
(c)             Certificate .  Seller shall have received a certificate, signed by a duly authorized officer of Buyer and dated as of the Closing Date, to the effect that the conditions set forth in Section 7.3(a) and Section 7.3(b) have been satisfied or waived.
 
(d)             No Prohibition .  No Law shall be in effect restraining, enjoining or otherwise prohibiting the Closing, other than any Law of any such jurisdiction the violation of which would not result in a Seller Regulatory Impediment.
 
(e)             Required Approvals .  Parent or one of its Affiliates shall have obtained, without any Seller Regulatory Impediment, (i) each of the approvals set forth in Exhibit G and (ii) such other approvals of Government Entities required to consummate the Closing, the failure of which to obtain would result in a Seller Regulatory Impediment.
 
(f)             Ancillary Agreements .  Buyer and its applicable Affiliates shall have executed and delivered all of the Ancillary Agreements to which they are parties in all material respects in the forms attached to this Agreement.
 
(g)             Certificate of Designations . The Certificate of Designations shall have been filed with the Secretary of State of the State of Delaware and shall be in full force and effect.
 
ARTICLE VIII
 
SURVIVAL; INDEMNIFICATION; CERTAIN REMEDIES
 
Section 8.1             Survival .  The representations and warranties of Seller and Buyer contained in this Agreement shall survive the Closing for the periods set forth in this Article VIII.  All representations and warranties of Seller contained in this Agreement shall terminate on the 18 month anniversary of the Closing Date, except that the representations and warranties contained in Section 3.1 (Organization and Qualification), Section 3.2 (Ownership), Section 3.3 (Corporate Authority), Section 3.4 (Binding Effect), Section 3.6(a)(i) (Non-Contravention), Section 3.6(b) (Non-Contravention), Section 3.8 (Finders’ Fees), Section 4.1 (Organization and Qualification), the third, fourth and fifth sentences of Section 4.2(a) (Capitalization),
 

 
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Section 4.4(a) (Non-Contravention) and Section 4.26 (Finders’ Fees), shall survive indefinitely and (ii) the representations and warranties contained in Section 4.7 (Taxes) and in Section 4.10 (Environmental Matters) shall survive until the third anniversary of the Closing; it being understood that in the event notice of any claim for indemnification under Section 8.2 (Indemnification by Seller) has been given within the applicable survival period, the portion of such representations and warranties that are the subject of such indemnification claim shall survive with respect to such claim until such time as such claim is finally resolved.  All representations and warranties of Buyer contained in this Agreement shall terminate and be of no further force and effect at the Closing, provided that the representations and warranties of Buyer set forth in Section 5.1 (Organization and Qualification), Section 5.2 (Capitalization), Section 5.3 (Corporate Authorization), Section 5.4 (Consents and Approvals), Section 5.5(a)(i) (Non-Contravention), Section 5.6 (Binding Effect), Section 5.7 (Equity Consideration) and Section 5.17 (Finder’s Fee) shall survive the Closing hereunder indefinitely.
 
Section 8.2             Indemnification by Seller .
 
(a)            Seller hereby agrees that from and after the Closing Date it shall indemnify, defend and hold harmless, without duplication, Buyer and its Subsidiaries (including, following the Closing, the Transferred Entities) (each, a “ Buyer Indemnified Party ”), from, against and in respect of any damages, losses, charges, liabilities, claims, assertions, demands, actions, suits, proceedings, payments, indemnity payments, judgments, settlements, assessments, deficiencies, interest and costs (including indemnification costs) and expenses ((whether or not resulting from Third Party Claims) including interest and penalties (criminal or civil) with respect thereto and reasonable out-of-pocket expenses and reasonable attorneys’ and accountants’ fees and expenses incurred in the defense of any of the same) (collectively, “ Losses ”) actually imposed on, sustained, incurred or suffered by, an Indemnified Party, whether in respect of Third Party Claims, claims between the parties hereto, or otherwise, directly or indirectly relating to or arising out of, or resulting from:
 
   (i)            subject to Section 8.2(b), any inaccuracy in or breach of any representation or warranty made by Seller contained in this Agreement, or, subject to the Seller’s Disclosure Schedules, any failure of any representation or warranty of Seller to be true and correct as of the Closing (as if made as of such time) (except to the extent that any such representation or warranty is made only as of a specified date in which case it shall be made only as of such date), in each case, where such representations and warranties are read without giving effect to any qualifiers or exceptions relating to materiality, except where materiality is referred to in, Section 4.5, Section 4.7, Section 4.8(a), Section 4.8(j), Section 4.10(v), Section 4.11 (only in respect of material Trade Secrets), Section 4.13(a), Section 4.13(b) (other than the references to “material to the Transferred Entities, taken as a whole”), Section 4.14, Section 4.17(i), (j), (k), (l), (m) and (n), Section 4.22 and Section 4.27.
 
   (ii)            any breach or non-performance of any covenant or agreement to be performed by Parent, Seller or any of their Affiliates contained in this Agreement,
 

 
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   (iii)            the participation of any of the Transferred Entities in the Bank UK Retirement Fund, and/or any other fund or scheme providing retirement, death, disability or life assurance benefits to or in respect of any Employee providing services in the United Kingdom,
 
   (iv)            any change to or termination of benefits provided to any Employee under the Bank UK Retirement Fund prior to the Closing at which the participating Transferred Entities cease to participate in the Bank UK Retirement Fund,
 
   (v)            the cessation of participation of any of the Transferred Entities in the Bank UK Retirement Fund, including any debt due on or after the date of this Agreement from any of the Transferred Entities to the trustees of the Bank UK Retirement Fund under Section 75 or 75A of the Pensions Act 1995 (but, for the avoidance of doubt, excluding any claim or part of a claim brought by an Employee as a result of the automatic cessation of benefit accrual on the Closing at which the participating Transferred Entities cease to participate in the Bank UK Retirement Fund), and any contribution notice or financial support direction issued on a Buyer Indemnified Party pursuant to the Pensions Act 2004 in relation to the participation of any of the Transferred Entities in the Bank UK Retirement Fund,
 
   (vi)            an employee or former employee of a Transferred Entity claiming that a benefit payable to him or her under the Bank UK Retirement Fund has become a right exercisable against a Transferred Entity through the operation of the Transfer of Undertakings (Protection of Employment) Regulations 2006, or by application of European Council Directive of 12 March 2001 (2001/23/EC) on the Approximation of the Laws of the Member States Relating to the Safeguarding of Employees’ Rights in the Event of Transfers of Undertakings, Businesses or Parts of Undertakings or Businesses, and
 
   (vii)            any Taxes for which Seller is responsible in accordance with Section 6.5 (Tax Matters).
 
(b)            Except as provided in the following sentence, Seller shall not be liable to the Buyer Indemnified Parties for any Losses with respect to the matters contained in Section 8.2(a)(i) unless the Losses therefrom exceed an aggregate amount equal to $120 million (the “ Seller Threshold ”), whereupon the Buyer Indemnified Parties shall be entitled (subject to the other limitations in this Agreement) to indemnification for all Losses in excess of the Threshold, and up to an aggregate amount equal to $1.2 billion (the “ Seller Limit ”); provided, however, that the limitations imposed by the Seller Threshold and the Seller Limit shall not apply to Losses relating to breaches of the representations and warranties contained in Section 3.1 (Organization and Qualification), Section 3.2 (Ownership), Section 3.3 (Corporate Authority), Section 3.4 (Binding Effect), Section 3.6(a)(i) (Non-Contravention), Section 3.6(b) (Non-Contravention), Section 3.8 (Finders’ Fees), Section 4.1 (Organization and Qualification), the third, fourth and fifth sentences of Section 4.2(a) (Capitalization), Section 4.4(a) (Non-Contravention) and Section 4.26 (Finders’ Fees).  In addition, in no such event shall Seller be liable to any Buyer Indemnified Party for any particular Loss under Section 8.2(a)(i) until the aggregate amount of such Loss exceeds $120,000 (with multiple instances of the same source of Loss being treated as a single particular Loss).
 

 
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(c)            In addition to the other matters set forth in this Section 8.2(c), Seller shall pay to Buyer, following the Closing, (i) the amount by which the Audited Operating Expense Amount exceeds the Unaudited Operating Expense Amount on a dollar for dollar basis, in the aggregate in excess of $10 million, plus (ii) an amount equal to (x) the amount by which the Audited Operating Expense Amount exceeds the Unaudited Operating Expense Amount as a result of Recurring Errors (as defined below), multiplied by (y) 11.25 less any portion thereof paid under clause (i), provided that, in each case of (i) and (ii), no amount shall be payable in respect of the foregoing to the extent it arises from changing the accounting for such Financial Statements from IFRS to GAAP.  For purposes of the foregoing, “ Recurring Errors ” are errors, resulting in an understatement of operating expense, including errors due to the misapplication of an accounting standard, occurring in more than one fiscal year.
 
(d)            In addition to the indemnities provided in Section 8.2(a), Seller hereby agrees that from and after the Closing Date provided that a Claim Notice is provided on or prior to the three year anniversary of the Closing Date it shall indemnify, defend and hold harmless, without duplication, the Buyer Indemnified Parties from, against and in respect of any Losses (which shall not include expenses attributable to investigating and defending claims other than reasonable expenses incurred in respect of any investigation, administrative proceeding or legal action conducted by a Government Entity having jurisdiction over the applicable Regulatory Requirement, including for the avoidance of doubt any Fiduciary Requirement included in such Regulatory Requirement) actually imposed on, sustained, incurred or suffered by a Buyer Indemnified Party relating to or arising out of, or resulting from, any actual breach, failure to comply or violation in any respect of any Regulatory Requirement or Fiduciary Requirement or any investigation, administrative proceeding or legal action conducted by a Government Entity having jurisdiction over the applicable Fiduciary Requirement or Regulatory Requirement, but in any event only to the extent arising out of, attributable to, relating to or resulting from the ownership, operation or conduct of the BGI Business (including the Funds) prior to the Closing.  Notwithstanding anything in this Agreement to the contrary, Seller shall not be obligated to indemnify, defend or hold harmless any Buyer Indemnified Party from any Loss under this Section 8.2(d) to the extent that (i) the breach, failure or violation underlying such Loss is caused by any action by Buyer or any of its Controlled Affiliates or such Loss is exacerbated by any action by Buyer or any of its Controlled Affiliates (but only to the extent of such exacerbation) or (ii) such Loss arises out of, is caused by or otherwise exists as a consequence of a change in Law or explicit guidance or interpretation with respect thereto provided by a Government Entity having jurisdiction over the Regulatory Requirement which results in actions which had been expressly permissible prior to the Closing retroactively ceasing to be permissible as of prior to the Closing.
 
(e)            In no event shall the Buyer Indemnified Parties be entitled to any indemnification under Section 8.2(d) until the aggregate Losses in respect of such matters exceed an amount equal to $10 million and then only up to an aggregate amount equal to $1.0 billion.  Further, in no such event shall Seller be liable to any Buyer Indemnified Party for any particular Loss under Section 8.2(d) until the aggregate amount of such Loss exceeds $100,000 (with multiple instances of the same source of Loss being treated as a single particular Loss).  The
 

 
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indemnification for matters covered by Section 8.2(d) is the exclusive remedy for the matters covered thereby.
 
(f)            If immediately after giving effect to the Closing, Seller is in violation of Section 6.12(h) or 6.31, Seller shall promptly indemnify Buyer or its designee on a dollar-for-dollar basis for the amount of any deficiency thereunder.
 
Section 8.3              Indemnification by Buyer .
 
(a)            Buyer hereby agrees that from and after the Closing Date it shall indemnify, defend and hold harmless Seller and its Subsidiaries (excluding the Transferred Entities following the Closing) (each, a “ Seller Indemnified Party ” and, collectively with the Buyer Indemnified Parties, the “ Indemnified Parties ”) from, against and in respect of any Losses imposed on, sustained, incurred or suffered by, or asserted against, a Seller Indemnified Party, whether in respect of third party claims, claims between the parties hereto, or otherwise, directly or indirectly relating to, arising out of or resulting from:
 
   (i)           subject to Section 8.3(b), any breach of any representation or warranty set forth in Section 5.1 (Organization and Qualification), Section 5.2 (Capitalization), Section 5.3 (Corporate Authorization), Section 5.4 (Consents and Approvals), Section 5.5(a) (Non-Contravention), Section 5.6 (Binding Effect), Section 5.7 (Equity Consideration) and Section 5.17 (Finder’s Fee) made by Buyer contained in this Agreement (collectively, the “ Buyer Fundamental Representations ”), or, subject to the Buyer’s Disclosure Schedules, any failure of any Buyer Fundamental Representation to be true and correct as of the Closing (as if made as of such time) (except to the extent that any such representation or warranty is made only as of a specified date, in which case it shall be made only as of such date), in each case, where such representations and warranties are read without giving effect to any qualifiers or exceptions relating to materiality;
 
   (ii)          any breach of any covenant or agreement of Buyer or its Subsidiaries contained in this Agreement;
 
   (iii)          any liabilities of the Transferred Entities other than liabilities which are expressly assumed by Seller or any of its Affiliates, or with respect to which indemnification is provided by Seller, under this Agreement or any Ancillary Agreement; and
 
   (iv)          any Taxes for which Buyer is responsible in accordance with Section 6.5 (Tax Matters).
 
(b)            Buyer shall not be liable to the Seller Indemnified Parties for any Losses with respect to the matters contained in Section 8.3(a)(i) relating to breaches of representations and warranties made by Buyer under any of the Ancillary Agreements unless the Losses therefrom exceed an aggregate amount equal to $10 million (the “ Buyer Threshold ”), whereupon the Seller Indemnified Parties shall be entitled (subject to the other limitations in this Agreement) to indemnification for all Losses in excess of the Buyer Threshold, and up to an aggregate amount equal to $1.1 billion (the “ Buyer Limit ”).  Buyer’s obligation to make any payment to a Seller
 

 
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Indemnified Party may be satisfied (at Buyer’s sole discretion) by making payment to Seller; provided , however , that the limitations imposed by the Buyer Threshold and the Buyer Limit shall not apply to Losses relating to breaches of representations and warranties contained in Section 5.1 (Organization and Qualification), Section 5.2 (Capitalization), Section 5.3 (Corporate Authorization), Section 5.5(a)(i) (Non-Contravention), Section 5.6 (Binding Effect) and Section 5.7 (Equity Consideration).  In addition, in no event shall Buyer be liable to any Seller Indemnified Party for any particular Loss under Section 8.3(a)(i) until the aggregate amount of such Loss exceeds $100,000 (with multiple instances of the same source of Loss being treated as a single particular Loss).
 
(c)            In the event that Seller has provided funding pursuant to the first sentence of Section 6.12(h) in excess of the aggregate amount required thereunder, Buyer shall promptly pay such excess amount to Seller on a dollar-for-dollar basis.
 
Section 8.4             Notice; Third Party Claim Indemnification Procedures ; etc .
 
(a)            Any Indemnified Party may seek indemnification for any Loss (other than those relating to Taxes (which shall be governed by Section 6.5 (Tax Matters)) by giving written notice (a “ Claim Notice ”) to the applicable party or parties from whom indemnification is sought (the “ Indemnifying Party ”) describing in reasonable detail, to the extent known by the Indemnified Party at the time, the facts giving rise to the claim for indemnification and referencing the provision of this Agreement under which such claim is based.  In the event that any written claim or demand is asserted against or sought to be collected from any Indemnified Party by a third party (a “ Third Party Claim ”), such Indemnified Party shall promptly, but in no event more than 20 days following such Indemnified Party’s receipt of a Third Party Claim, notify the Indemnifying Party in writing of such Third Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “ Third Party Claim Notice ”); provided , however , that the failure promptly to give a Third Party Claim Notice shall affect the rights of an Indemnified Party hereunder only to the extent that such failure actually prejudices the defenses or other rights available to the Indemnifying Party with respect to such Third Party Claim.  The Indemnifying Party shall have 30 days after receipt of the Third Party Claim Notice (the “ Notice Period ”) to notify the Indemnified Party that it desires to defend the Indemnified Party against such Third Party Claim.
 
(b)            In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings, and shall assume and control such defense, at the Indemnifying Party’s expense, provided that counsel for the Indemnifying Party who shall conduct the defense of such claim or Litigation shall be reasonably satisfactory to the Indemnified Party.  Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of
 

 
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its choosing, subject to the Indemnifying Party’s right to direct and control the defense.  The Indemnified Party shall participate in any such defense at its expense unless (i) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded that representation of both parties by the same counsel would be inappropriate due to an actual conflict of interests between them, (ii) the Indemnified Parties shall in good faith determine that the Indemnified Parties may have available to them one or more defenses or counterclaims that are inconsistent with one or more of the defenses or counterclaims that may be available to the Indemnifying Party in respect of a Third Party Claim or any proceeding relating thereto, as provided in the first sentence of Section 8.4(c) or (iii) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, as provided in the first sentence of Section 8.4(d), in either of which case the costs and expenses of such defense shall be for the account of the Indemnifying Party.  The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, consent to entry of any judgment, settle, compromise or offer to settle or compromise any Third Party Claim on a basis that would result in (i) the imposition of a consent order, injunction or decree that would restrict or mandate the future activity or conduct of the Indemnified Parties or any of their Affiliates, (ii) a finding or admission of a violation of Law or violation of the rights of any Person by the Indemnified Parties or any of their Affiliates, (iii) any monetary liability of the Indemnified Parties that will not be promptly paid or reimbursed by the Indemnifying Party or (iv) the absence of a full, unconditional and irrevocable release by such third party of each of the Indemnified Parties and their Affiliates.  Notwithstanding the foregoing, the Indemnifying Party shall not, without the prior written consent of the Indemnified Parties, consent to entry of any judgment, settle, compromise or offer to settle or compromise any Third Party Claim unless such judgment, settlement or compromise, in the reasonable good faith judgment of the Indemnified Parties, does not and would not reasonably be expected to adversely impact or impair the business or reputation of the Indemnified Parties and their Affiliates; provided that if the Indemnified Party shall not provide such consent and any later judgment, settlement or compromise costs the Indemnifying Party more than such earlier proposal, then the Indemnified Party shall bear, and the Indemnifying Party shall have no obligation to indemnify the Indemnified Party for, all such excess costs.
 
(c)            Notwithstanding anything to the contrary in Section 8.4(b), in the event that the Indemnified Parties shall in good faith determine that the Indemnified Parties may have available to them one or more defenses or counterclaims that are inconsistent with one or more of the defenses or counterclaims that may be available to the Indemnifying Party in respect of a Third Party Claim or any proceeding relating thereto, the Indemnified Parties shall have the right, subject to Section 8.2(b) or Section 8.3(b), as applicable, at the sole cost of the Indemnifying Party and such costs, if applicable, shall be counted toward the Seller Limit or the Buyer Limit, as applicable, and if applicable, such costs shall not be paid if they come within the Seller Threshold or the Buyer Threshold, as applicable (including the costs and expenses of counsel for the Indemnified Parties ( provided that the Indemnifying Party will not be required to pay for more than one counsel in any jurisdiction for all Indemnified Parties in connection with any such Third Party Claim and related proceedings)), at all times to take over and assume control over the defense and prosecution of such portion of such Third Party Claim and related proceedings related to such inconsistent defenses and counterclaims; provided that the Indemnifying Party
 

 
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shall not be prejudiced by the Indemnified Parties’ defense of such portion of such Third Party Claim.  In the event that the Indemnified Party does not assume the defense of any matter as provided in the preceding subclause, the Indemnifying Party shall have the right to control the defense against any such Third Party Claim or related proceeding, provided that (A) subject to the control of the prosecution and defense of such Third Party Claim by the Indemnifying Party and its counsel, the Indemnified Parties and their counsel shall be kept informed as to all material aspects of such Third Party Claim and related proceedings and shall have the right to participate in the prosecution and defense of such Third Party Claim, (B) the Indemnifying Party and its counsel shall promptly provide to the Indemnified Parties and their counsel all material information related to such Third Party Claim and related proceedings (including copies of written information) and (C) the Indemnified Parties and their counsel shall have their views regarding such Third Party Claim considered in good faith by the Indemnifying Party and its counsel.
 
(d)            If the Indemnifying Party elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, the Indemnified Party shall have the right, but not the obligation, to assume its own defense at the Indemnifying Party’s cost and expense; it being understood that the Indemnified Party’s right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim.  The Indemnified Party shall not settle a Third Party Claim requiring payment of any amounts without the consent of the Indemnifying Party unless it shall waive its rights against the Indemnifying Party with respect to that portion of indemnification related to such settled Third Party Claim pursuant hereto.
 
(e)            Subject to Section 8.4(b) and Section 8.4(c), in the event that an Indemnified Party determines in good faith that any Third Party Claim or any proceeding related thereto has had or could reasonably be expected to impair the commercial interests or business reputation of the Indemnified Party or its Affiliates or have a Buyer Material Adverse Effect (if Buyer is the Indemnified Party in this case) or a material adverse effect on the business, assets, results of operations or condition (financial or otherwise) or Parent and its Subsidiaries taken as a whole (if Seller is the Indemnified Party in this case), then (1) subject to the control of the prosecution and defense of such Third Party Claim by the Indemnifying Party and its counsel, the Indemnified Parties and their counsel (which shall be reasonably satisfactory to the Indemnifying Party) shall be kept informed as to all material aspects of such Third Party Claim and related proceedings and shall have the right to participate in the prosecution and defense of such Third Party Claim, (2) the Indemnifying Party and its counsel shall promptly provide to the Indemnified Parties and their counsel all material information related to such Third Party Claim and related proceedings (including copies of written information) reasonably requested by the Indemnified Parties, and (3) the Indemnified Parties and their counsel shall afford the Indemnifying Party and its counsel a reasonable opportunity to present their views on such claims and proceedings.
 
(f)            The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third Party Claim, including by (i) cooperating in the investigation, pre-trial activities, trial, compromise, settlement, discharge and defense of any Third Party Claim subject to this Section 8.4 and (ii) providing reasonable access to each other’s
 

 
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relevant business records and other documents and employees; it being understood that the reasonable out of pocket costs and expenses of the Indemnified Party relating thereto shall be Losses.
 
(g)            The Indemnified Party and the Indemnifying Party shall use reasonable best efforts (which shall not require the expenditure of money, the curbing of any business activities or the commencement of litigation) to avoid production of confidential information (consistent with applicable Law) and to cause all communications among employees, counsel and others representing any party to a Third Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
 
(h)            In the event Buyer or one of its Controlled Affiliates incurs a Loss for which it claims indemnification under Section 8.2(d), if the claim for indemnification is not a Third-Party Claim because Buyer or one of its Controlled Affiliates reasonably determined that a Fiduciary Requirement or Regulatory Requirement was not satisfied and determined in accordance with its compliance policies to sustain a Loss in remediation of such failure, prior to a Buyer Indemnified Party making any indemnification claim pursuant to Section 8.2(d) in respect of a claim that is not a Third Party Claim, Buyer shall (i) consult with Seller and provide any information and access Seller reasonably requests with respect to such Client and Client account and (ii) consult with Seller in good faith regarding issues or objections Seller has with the Buyer Indemnified Party’s position.  If the Buyer Indemnified Party and Seller are not able to reach agreement and the Buyer Indemnified Party makes such an indemnification claim, Seller may contest the indemnifiability of such Loss hereunder in accordance with Section 8.13(a) of this Agreement; provided , however , that the foregoing requirements shall not prevent Buyer from submitting a Claim Notice if failure to do so would cause its right to submit a Claim Notice with respect thereto to lapse.  In any such arbitration, the arbitrator may not award more than the actual Loss suffered by the applicable Client.
 
Section 8.5             Damages .  Notwithstanding anything to the contrary contained in this Agreement (except to the extent such damages are actually paid, awarded or incurred in connection with a Third Party Claim), no Person shall be liable under this Article VIII for any consequential, punitive, special, incidental or indirect damages, including lost profits.
 
Section 8.6             Adjustments to Losses .
 
(a)             Insurance .  In calculating the amount of any Loss, the proceeds actually received by the Indemnified Party under any insurance policy or pursuant to any claim, recovery, settlement or payment by or against any other Person in each case relating to a Third Party Claim or a claim for indemnification hereunder for a Loss that does not result from a Third Party Claim, net of any actual costs, expenses, premiums or increased premiums incurred in connection with securing or obtaining such proceeds, shall be deducted.
 
(b)             Taxes .  In calculating the amount of any Loss, there shall be (i) deducted an amount equal to any net Tax benefit resulting from such Loss actually realized by Buyer or its Affiliates within two years following the Closing Date, and (ii) there shall be added, any Tax cost incurred (including any net Tax cost incurred from the receipt of any indemnity payments,
 

 
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which Tax cost shall be grossed up for such increase) as a result of such Loss; provided , however , that in computing the amount of any Tax cost, or Tax benefit, Buyer shall be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any item arising from such indemnification payment.  All relevant computations relating to net Tax benefits under clause (i) of the preceding sentence shall be computed by Buyer in a manner consistent with a “with and without” methodology.  In the case of a payment under Section 8.2 or Section 6.5(a)(ii) to a Person other than Buyer in circumstances in which that payment could have been obtained by Buyer under the terms of this Agreement, Seller’s liability to make that payment shall not be increased pursuant to 8.6(b)(ii) by an amount greater than the amount by which the payment would have been increased pursuant to 8.6(b)(ii) had Seller made that payment to Buyer.  In the case of a payment under Section 8.3 to a Person other than Seller in circumstances in which that payment could have been obtained by Seller under the terms of this Agreement, Buyer’s liability to make that payment shall not be increased pursuant to 8.6(b)(ii) by an amount greater than the amount by which the payment would have been increased pursuant to 8.6(b)(ii) had Buyer made that payment to Seller.
 
(c)             Reimbursement .  If an Indemnified Party recovers an amount from a third party in respect of a Loss that is the subject of indemnification hereunder after all or a portion of such Loss has been paid by an Indemnifying Party pursuant to this Article VIII, the Indemnified Party shall promptly remit to the Indemnifying Party the excess (if any) of (i) the amount paid by the Indemnifying Party in respect of such Loss, plus the amount received from the third party in respect thereof, less (ii) the full amount of such Loss and any reasonable expenses (including any Taxes) incurred by the Indemnified Party in respect of obtaining and remitting such amount.
 
(d)             Calculation of Loss .  In calculating the amount of any Loss for which any party is entitled to indemnification hereunder, the amount of any reserve, provision or accrual related to such Loss, shall be deducted to the extent reflected in Closing Net Working Capital or to the extent it is included in the calculation of the Closing Regulatory Capital Requirement and otherwise to avoid duplicative amounts.
 

 
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Section 8.7             Payments .  The Indemnifying Party shall pay all amounts payable pursuant to this Article VIII, by wire transfer of immediately available funds, promptly following receipt from an Indemnified Party of a bill, together with all accompanying, reasonably detailed back-up documentation, for a Loss that is the subject of indemnification hereunder, unless the Indemnifying Party in good faith disputes the Loss, in which event it shall so notify the Indemnified Party in writing, and shall pay promptly that portion of the Loss that is undisputed, if any.  In any event, the Indemnifying Party shall pay to the Indemnified Party, by wire transfer of immediately available funds, the amount of any Loss for which it is liable hereunder no later than 10 Business Days following any final determination of such Loss and the Indemnifying Party’s liability therefor.  A “final determination” shall exist when (i) the parties to the dispute have reached an agreement in writing, (ii) a court of competent jurisdiction shall have entered a final and non-appealable order or judgment or (iii) an arbitration or like panel shall have rendered a final non-appealable determination, in each case, with respect to disputes the parties have agreed to submit thereto.
 
Section 8.8             Characterization of Indemnification Payments .  All payments made by an Indemnifying Party to an Indemnified Party in respect of any claim under this Agreement shall be treated as adjustments to the Purchase Price (as determined for applicable Tax purposes).  Any indemnification payment to be made under Section 6.5 or Section 8.2 by Seller in respect of a Transferred Entity shall, to the extent possible, be made by the Person that sold such Transferred Entity to which the payment relates.
 
Section 8.9             Mitigation .  Each Indemnified Party shall use commercially reasonable efforts to mitigate any indemnifiable Loss, which shall not require the curbing or cessation of any of the Indemnified Party’s business or the commencement or prosecution of any litigation or the utilization of any relief.
 
Section 8.10           Limitations .  Notwithstanding anything in this Agreement to the contrary: (a) no Indemnifying Party shall have any indemnification payment obligation in respect of any contingent liability unless and until such liability becomes due and payable by, or any actual Loss is suffered by, the Indemnified Party (it being understood and agreed that the providing of a timely Claim Notice or Third Party Claim Notice as contemplated by Section 8.4(a) shall toll the applicable survival period as described in Article VIII); and (b) any indemnification due by an Indemnifying Party shall be limited to the actual amount of the Losses sustained by the Indemnified Party, notwithstanding the fact that the Indemnifying Party’s obligation may result from a set of facts constituting a breach of more than one provision of this Agreement.
 
Section 8.11           Remedies .  Following the Closing, the rights and remedies of Seller and Buyer under this Article VIII are exclusive and in lieu of any and all other rights and remedies which Seller and Buyer may have under this Agreement or otherwise against each other with respect to the transactions contemplated by this Agreement for monetary relief (other than causes of action arising from fraud or Willful Breach).  The foregoing limitations shall not apply with respect to actual fraud or Willful Breach.
 

 
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Section 8.12           Effect of Investigation .  The right to indemnification, payment of Losses or for any other remedies based on any representation, warranty, covenant or obligation contained in or made pursuant to this Agreement, any of the Ancillary Agreements or any other writing delivered hereto or thereto or in connection herewith or therewith shall not be affected by any investigation conducted with respect to, or any knowledge acquired (or capable of being acquired) at any time, whether before or after the date of this Agreement or the Closing Date, with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant or obligation.  The waiver of any condition to the obligation of any party to consummate the transactions, where such condition is based on the accuracy of any such representation or warranty, or on the performance of or compliance with any such covenant or obligation, shall not affect the right to indemnification, payment of Losses, or other remedy based on such representation, warranty, covenant or obligation.
 
Section 8.13          Arbitration .
 
(a)            (i) If Buyer has made any payment of the type referred to in Section 8.4(h) and is, subject to the terms thereof, seeking indemnity from Seller, and if Seller disagrees with Buyer’s determination or (ii) the parties are having a dispute under Section 2.3(c)(ii)) with respect to the Remaining Contingent Accounts (a “ Dispute ”), the discussion process described in Section 8.4(h) (with respect to Section 8.4(h)) and arbitration in accordance with this Section 8.13 (with respect to Sections 8.4(h) and 2.3(c)(ii)) shall be the exclusive means by which the parties may resolve such Dispute.  The Dispute shall be settled by arbitration administered by the International Centre for Dispute Resolution of the American Arbitration Association (“ AAA ”) in accordance with its International Arbitration Rules (the “ Rules ”), except as such Rules have been modified herein.
 
(b)            The number of arbitrators shall be three, one of whom shall be appointed by Buyer, one of whom shall be appointed by Seller within 20 days after the receipt of a copy of the demand for arbitration and the third of whom shall be selected by the mutual agreement of the arbitrators so appointed by Buyer and Seller, within 30 days after the selection of the second arbitrator, or in default thereof by the International Centre for Dispute Resolution of the AAA.  The parties shall attempt to appoint arbitrators with experience in investment management matters.  The place of arbitration shall be New York, New York and the language of the arbitration shall be English.
 
(c)            All papers, documents and evidence, whether written or oral, filed with or presented to the arbitrator shall be deemed by the parties to be Confidential Information (as defined in the Confidentiality Agreement).  In addition, the arbitrators shall keep such papers, documents and evidence strictly confidential, and no expert or arbitrator shall disclose in whole or in part to any other Person any Confidential Information submitted by any other Person in connection with any arbitration proceedings, except to the extent (i) required by any applicable Law or regulatory authority, (ii) reasonably necessary to assist counsel in the arbitration or preparation for arbitration of the Dispute, (iii) reasonably necessary for enforcement of (A) this agreement to arbitrate or (B) any award issued thereunder or (iv) that such “confidential” information was previously or subsequently becomes known to the disclosing party without
 

 
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restrictions on disclosure, was independently developed by such disclosing party or becomes publicly known through no fault of the disclosing party.
 
(d)            The arbitrators shall only have the authority (i) with respect to Section 8.4(h), to determine whether the applicable remedial measure taken was in respect of an actual breach, failure to comply or violation of a Fiduciary Requirement or Regulatory Requirement by Seller or any Person that was a Controlled Affiliate of Seller at the time of the disputed breach, failure to comply or violation and the corresponding actual damages of the applicable Client or (ii) with respect to Section 2.3(c), to determine whether any Contingent Account is a Remaining Contingent Account.
 
(e)            Any decision of the arbitration panel rendered in accordance with this Agreement shall be final and binding upon the parties to the arbitration proceeding and may be entered and enforced in any court having jurisdiction. If the arbitrators rule in favor of Buyer, then Seller shall bear the arbitration costs, and if the arbitrators rule in favor of Seller, then Buyer shall bear the arbitration costs, in each case, including the fees and expenses of the arbitrators and the AAA. Except for the grounds provided for in the Federal Arbitration Act, each party hereby waives to the fullest extent permitted by Law any rights to review of such decision by any court or tribunal.
 
ARTICLE IX
 
TERMINATION
 
Section 9.1             Termination .  This Agreement may be terminated at any time prior to the Closing:
 
(a)            by written agreement of Buyer and Seller;
 
(b)            by either Buyer or Seller, by giving written notice of such termination to the other party, if the Closing shall not have occurred on or prior to April 2, 2010; provided , that if the conditions set forth in any of Section 7.1(a), Section 7.1(b), Section 7.1(c), Section 7.1(e), Section 7.2(e) and Section 7.3(e) shall not have been satisfied or waived on the Business Day prior to such date, either party may by written notice extend the Termination Date until July 2, 2010 (the “ Termination Date ”); provided that the right to terminate this Agreement pursuant to this Section 9.1(b) shall not be available to any party if the failure of the Closing to occur by the close of business on the Termination Date is attributable to a failure on the part of such party to perform any covenant in this Agreement required to be performed by such party at or prior to the Closing or is attributable to any Willful Breach;
 
(c)            by either Buyer or Seller, by giving written notice of such termination to the other party, if any Law of any jurisdiction set forth under Annex 9.1(c) shall have been enacted or enforced in a manner restraining, enjoining or otherwise prohibiting the Closing and such Law shall have become permanent, final and non-appealable; provided that the party seeking to terminate pursuant to this Section 9.1(c) shall have used its commercially reasonable efforts to remove, eliminate or otherwise have vacated such Law;
 

 
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(d)            by Seller, if Buyer shall have (i) failed to perform, or comply with, any obligation, agreement or covenant set forth in this Agreement or (ii) breached any representation or warranty set forth in this Agreement, which breach or failure to perform or comply prevents any of the conditions set forth in Section 7.1 (Conditions to the Obligations of Buyer and Seller with respect to the Closing) or Section 7.3(a) or Section 7.3(b) (Conditions to the Obligations of Seller with respect to the Closing) from being satisfied, and such breach or failure to comply is not curable within thirty (30) days of notice from Buyer of such breach or failure to comply;
 
(e)            by Buyer, if Seller shall have (i) failed to perform, or comply with, any obligation, agreement or covenant set forth in this Agreement or (ii) breached any representation or warranty set forth in this Agreement, which breach or failure to perform or comply prevents any of the conditions set forth in Section 7.1 (Conditions to the Obligations of Buyer and Seller with respect to the Closing) or Section 7.2(a) or Section 7.2(b) (Conditions to the Obligations of Buyer with respect to the Closing), from being satisfied, and such breach or failure to comply is not curable within thirty (30) days of notice from Seller of such breach or failure to comply; or
 
(f)            by Seller or Buyer, if Parent fails to obtain the Parent Requisite Vote at the Parent Shareholders Meeting.
 
Section 9.2             Effect of Termination .  In the event of the termination of this Agreement in accordance with Section 9.1 (Termination), this Agreement shall thereafter become void and have no effect, and no party to this Agreement shall have any liability to the other party to this Agreement or its Affiliates, or their respective directors, officers or employees, except for (i) the obligations of the parties to this Agreement contained in Section 6.18 (Confidentiality), this Section 9.2 (Effect of Termination) and Section 9.3 (Termination Fee) and in Section 10.1 (Notices), Section 10.2 (Amendment; Waiver), Section 10.3 (No Assignment or Benefit to Third Parties), Section 10.4 (Entire Agreement), Section 10.6 (Public Disclosure), Section 10.7 (Expenses), Section 10.9 (Governing Law; Injunctive Relief; Waiver of Trial by Jury; Arbitration), Section 10.10 (Counterparts), Section 10.11 (Headings), Section 10.12 (Severability), Section 10.13 (Joint Negotiation) and Section 10.14 (Parent) and any related definitional provisions set forth in Article I or (ii) any liability or damages resulting from any Willful Breach by a party of its covenants under this Agreement to be performed prior to the Closing.
 
Section 9.3             Termination Fee .
 
(a)            In the event that this Agreement is terminated pursuant to Section 9.1(f) and after the date hereof there shall have been a Change of Recommendation (other than a Change of Recommendation that relates to a Buyer Material Adverse Effect), then Seller shall pay to Buyer, in accordance with this Section 9.3, an amount in cash equal to $45 million (the “ Termination Fee ”) as full compensation for loss and damages suffered.
 
(b)            In the event that this Agreement is terminated pursuant to Section 9.1(f) and there has not been a Change of Recommendation or there has been a Change of Recommendation that relates to a Buyer Material Adverse Effect, then Seller shall pay to Buyer an amount in cash equal to the reasonable and documented out-of-pocket expenses of Buyer and its Controlled
 

 
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Affiliates (the “ Expense Amount ”) incurred by Buyer and its Controlled Affiliates in connection with the transactions contemplated hereby, subject to a maximum of $45 million (the “ Alternative Termination Fee ”).
 
(c)            Any payment of the Termination Fee shall be made by wire transfer of immediately available funds within two Business Days after the termination of this Agreement to an account provided by Buyer promptly following termination pursuant to Section 9.1(f).  Any payment of the Alternative Termination Fee shall be made within two Business Days of receipt from Buyer of documentation relating to the Expense Amount to an account provided by Buyer promptly following termination pursuant to Section 9.1(f).
 
(d)            Buyer and Seller acknowledge that the agreements contained in this Section 9.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, Buyer would not enter into this Agreement.  Accordingly, if Seller fails promptly to pay any amount due pursuant to this Section 9.3 and, in order to obtain such payment Buyer commences a suit which results in a judgment against the other party for the respective amount set forth in this Section 9.3, Seller shall pay to the prevailing party its costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit.
 
ARTICLE X
 
MISCELLANEOUS
 
Section 10.1          Notices .
 
(a)            All notices and communications hereunder shall be deemed to have been duly given and made if in writing and if served by personal delivery upon the party for whom it is intended, or if delivered by registered or certified mail, return receipt requested, or if sent by telecopier or email in each case, to the Person at the address set forth below, or such other address as may be designated in writing hereafter, in the same manner, by such Person:
 
 
To Buyer:
 
BlackRock, Inc.
40 East 52nd Street
New York, NY 10022
Telecopy:  (212) 754-8777
Attention:  Susan Wagner
 
With a copy to:
 
BlackRock, Inc.
40 East 52nd Street
New York, NY 10022
Telecopy:      (212) 754-8777
Attention:      General Counsel

 
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Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York  10036
Telephone:    (212) 735-3000
Telecopy:      (212) 735-2000
E-mail:           Richard.Prins@skadden.com
 
Attention:      Richard T. Prins
 
To Parent and Seller:
 
Barclays PLC
1 Churchill Place
Canary Wharf
London
E14 5HP
England
Telecopy:     +441452638157
Email:           bcsnotices@barclays.com
 
Attn:             The Company Secretary
 
With a copy to:
 
Sullivan & Cromwell LLP
1888 Century Park East, Suite 2100
Los Angeles, California 90067
Telephone:    (310) 712-6630
Telecopy:      (310) 712-8800
Email:            resslera@sullcrom.com
                     krautheimere@sullcrom.com
 
Attn:             Alison S. Ressler and
                     Eric M. Krautheimer
 
(b)            The failure to provide notice in accordance with the required timing, if any, set forth herein shall affect the rights of the party providing such notice only to the extent that such delay actually prejudices the rights of the party receiving such notice.
 
Section 10.2            Amendment; Waiver .  Any provision of this Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by Buyer and Seller, or in the case of a waiver, by the party against whom the waiver is to be effective.  No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege.  The rights and remedies herein provided shall be cumulative and not exclusive of any
 

 
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rights or remedies provided by Law except as otherwise specifically provided in Article VII, Article VIII or Article IX hereof.
 
Section 10.3           No Assignment or Benefit to Third Parties .  This Agreement shall be binding upon and inure to the benefit of the parties to this Agreement and their respective successors, legal representatives and permitted assigns.  No party to this Agreement may assign any of its rights or delegate any of its obligations under this Agreement, by operation of Law or otherwise, without the prior written consent of the other parties hereto, except as provided in Section 10.5 and except that Buyer may assign any or all of its rights under this Agreement to one or more of its Affiliates (but no such assignment shall relieve Buyer of any of its obligations hereunder and such Affiliate shall become bound by all of the terms of this Agreement) and Seller may assign any and all of its rights under this Agreement to one or more of its Affiliates (but no such assignment shall relieve Seller of any of its obligations hereunder and such Affiliate shall become bound by all of the terms of this Agreement).  Nothing in this Agreement, express or implied, is intended to or shall confer upon any Person, other than Buyer, Seller, the Indemnified Parties and their respective successors, legal representatives and permitted assigns, any rights or remedies under or by reason of this Agreement.
 
Section 10.4           Entire Agreement .  This Agreement (including the Exhibits, the Annexes and the disclosure schedules to this Agreement) has been entered into prior to the Closing and contains the entire agreements between the parties to this Agreement with respect to the subject matter of this Agreement and supersedes all prior agreements and understandings, oral or written, with respect to such matters, except for (i) the Confidentiality Agreement, which shall remain in full force and effect and (ii) those consents and waivers granted prior to the Closing.
 
Section 10.5           Fulfillment of Obligations .  Any obligation of any party to any other party under this Agreement, which obligation (i) is performed, satisfied or fulfilled completely by an Affiliate of such party, shall be deemed to have been performed, satisfied or fulfilled by such party and (ii) is to be performed, satisfied or fulfilled by an Affiliate of a party hereunder but is not so fulfilled shall be deemed to have not been performed, satisfied or fulfilled by such party.
 
Section 10.6           Public Disclosure .  Notwithstanding anything to the contrary contained in this Agreement, no press release or similar public announcement or communication relating to this Agreement shall be made or caused to be made without the prior written consent of all parties to this Agreement, other than any such press release or similar public announcement or communication that must be made or caused to be made by a party to this Agreement to comply with the requirements of any applicable Law or the rules and regulations of any stock exchange upon which the securities of it (and, in the case of Seller, Parent or any Fund) is listed ( it being understood and agreed that in the event that any such press release or similar public announcement or communication must be made or caused to be made by a party to this Agreement, such party shall, to the extent permitted by applicable Law, provide the other party to this Agreement with advance written notice of the details of, and an opportunity to comment on, such press release or similar public announcement or communication).  For the avoidance of doubt, nothing in this Agreement shall interfere with the ability of any Fund to make any public
 

 
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disclosure deemed by such Fund and its counsel to be necessary or advisable in connection with the transactions contemplated by this Agreement.
 
Section 10.7           Expenses .  Except as otherwise expressly provided in this Agreement, whether or not the transactions contemplated by this Agreement are consummated, all costs and expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement, including the costs and expenses related to obtaining the Buyer’s Required Approvals, the Transferred Entities’ Required Approvals and the Seller’s Required Approvals shall be borne by the party incurring such costs and expenses, except for any costs and expenses associated with the Assignment Requirements, including any costs and expenses associated with any proxy statement prepared in connection with obtaining shareholder approval required for any New Advisory Contract, which shall be borne solely by Seller.
 
Section 10.8           Schedules .  The disclosure of any matter in one Section or subsection of the Seller’s Disclosure Schedules or the Buyer’s Disclosure Schedules shall be deemed to be a disclosure for all sections or subsections of this Agreement to the extent that it is reasonably apparent that such disclosure is relevant to such other sections and subsections, but shall not be deemed to constitute an admission by Seller or Buyer, as the case may be, or to otherwise imply that any such matter is material or, in the case of Seller, would have a Material Adverse Effect for the purposes of the Agreement.
 
Section 10.9           Governing Law; Injunctive Relief; Waiver of Trial by Jury .
 
(a)            THE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO ANY PRINCIPLES OF CONFLICTS OF LAW THAT WOULD RESULT IN THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION).  Each party acknowledges that it could be impossible to determine the amount of damages that would result from any breach of many of the provisions of this Agreement and that the remedy at law for any breach, or threatened breach, of any of such provisions would likely be inadequate and, accordingly, agrees that each other party shall, in addition to any other rights or remedies which it may have, be entitled to seek such provisional or temporary injunctive relief as may be available from any New York Court (as defined below) to compel specific performance of, or restrain any party from violating, any of such provisions.  In connection with any request for temporary or permanent injunctive relief permitted under this Agreement, each party hereby waives the claim or defense that a remedy at law alone is adequate and agrees, to the maximum extent permitted by Law, to have each provision of this Agreement specifically enforced against it, without the necessity of posting bond or other security against it, and consents to the entry of temporary or permanent equitable and injunctive relief against it enjoining or restraining any breach or threatened breach of such provisions of this Agreement.
 
(b)            Subject to Section 2.3 and Section 8.13, each of the parties hereto (i) unconditionally and irrevocably consents to submit itself to the exclusive jurisdiction of the Federal district court for the Southern District of New York or the courts of the State of New York sitting in the Borough of Manhattan (the “ New York Courts ”) in connection with any
 

 
159
 

dispute that arises out of or relates to this Agreement or any of the agreements or transactions contemplated by this Agreement, (ii) hereby irrevocably and unconditionally waives any and all jurisdictional, venue and forum non conveniens objections or defenses that such party may have in any such action and agrees that it will not attempt to deny or defeat such jurisdiction by motion or other request for leave from any such New York Court and (iii) agrees that it will not bring any action arising out of or relating to this Agreement or any other agreement or the transactions contemplated hereby or thereby in any court other than the New York Courts.  Notwithstanding the previous sentence, a party may commence any such action in a court other than the New York Courts solely for the purpose of enforcing an order or judgment issued by one of such courts.
 
(c)            EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION UNDER THIS Section 10.9.  THE PARTIES HERETO AGREE THAT ANY OR ALL OF THEM MAY FILE A COPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED-FOR AGREEMENT AMONG THE PARTIES IRREVOCABLY TO WAIVE TRIAL BY JURY AND THAT ANY COURT ACTION OR PROCEEDING WHATSOEVER BETWEEN THEM THAT IS PERMITTED UNDER THIS Section 10.9 SHALL INSTEAD BE TRIED IN A NEW YORK COURT BY A JUDGE SITTING WITHOUT A JURY.
 
Section 10.10         Counterparts .  This Agreement may be executed in one or more counterparts, including via facsimile, each of which shall be deemed an original, and all of which shall constitute one and the same Agreement.
 
Section 10.11         Headings .  The heading references in this Agreement and the table of contents of this Agreement are for convenience purposes only, and shall not be deemed to limit or affect any of the provisions of this Agreement.
 
Section 10.12         Severability .  The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof.  If any provision of this Agreement, or the application thereof to any Person or any circumstance, is invalid or unenforceable, (a) a suitable and equitable provision shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (b) the remainder of this Agreement and the application of such provision to other Persons or circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity or enforceability of such provision, or the application thereof, in any other jurisdiction.
 
Section 10.13         Joint Negotiation .  The parties to this Agreement have participated jointly in negotiating and drafting this Agreement.  In the event that an ambiguity or a question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.
 

 
160
 

Section 10.14         Parent .  Parent shall be deemed a party hereto solely for the purposes of Section 6.16 (Parent Shareholder Approval), Section 6.18 (Confidentiality) and Section 6.24 (Non-Compete), and any other reference to a party or the parties shall be deemed not to include Parent.
 
[SIGNATURE PAGE FOLLOWS]
 

 
161
 


IN WITNESS WHEREOF, the parties have executed or caused this Agreement to be executed as of the date first written above.
 

 
BARCLAYS PLC Solely for purposes of Sections 6.16, 6.18 and 6.24
     
     
 
By:
/s/ Chris Lucas
   
Name:  Chris Lucas
   
Title:     Director




 
BARCLAYS BANK PLC
     
     
 
By:
/s/ Chris Lucas
   
Name:  Chris Lucas
   
Title:     Director




 
BLACKROCK, INC.
     
     
 
By:
/s/ Daniel R. Waltcher
   
Name:  Daniel R. Waltcher
   
Title:     Managing Director and Deputy General Counsel
 

[Signature page of Stock Purchase Agreement]

 
Exhibit 3.1
 

 
CERTIFICATE OF THE DESIGNATIONS,
POWERS, PREFERENCES AND RIGHTS
OF
SERIES D PARTICIPATING PREFERRED STOCK
OF
BLACKROCK, INC.


(Pursuant to Section 151 of the
Delaware General Corporation Law)

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 D Participating Preferred Stock" (the "Series D Preferred Stock") and the authorized number of shares constituting such series shall be 20,000,000.  The Series D Preferred Stock shall rank pari passu in right of payment of dividends and distributions upon liquidation with the Corporation's Series A Convertible Participating Preferred Stock, Series B Convertible Participating Preferred Stock (the "Series B Preferred Stock"), Series C Convertible Participating Preferred Stock, and any other series of Preferred Stock of the Corporation that by its terms ranks pari passu in right of payment of dividends and/or distributions upon liquidation with the Series D Preferred Stock.
 
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 D 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.  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 D Preferred Stock is registered at the close of business on the applicable record date.
 
(c)           No dividend shall be paid or declared on any share of Common Stock or the Series B Preferred Stock (other than, in the case of the Series B Preferred Stock, dividends paid or declared in accordance with Section 2(a) of the Certificate of the Designations, Powers, Preferences and Rights of Series B Preferred 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 D 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 or Series B Preferred 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.
 
(d)           No subdivision, combination, consolidation or reclassification shall be effected with respect to the Common Stock or the Series B Preferred Stock (other than, in the case of the Series B Preferred Stock, with respect to such subdivision, combination, consolidation or reclassification as a result of such a change in 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 D Preferred Stock, and no subdivision, combination, consolidation or reclassification shall be effected with respect to the Series D 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 or the Series B Preferred Stock (other than, in the case of the Series B Preferred Stock, with respect to such subdivision, combination, consolidation or reclassification as a result of such a change in the Common Stock).
 
(e)           Prior to declaring any dividend or making any distribution on or with respect to shares of Common Stock or the Series B Preferred 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 D 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 D 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, 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 D Preferred Stock, an amount on such date equal to $0.01 per share of Series D Preferred Stock, plus the amount of any declared but unpaid dividends thereon as of such date, calculated pursuant to Section 2 (the "Liquidation Preference").   If upon any Liquidation the assets available for payment of the Liquidation Preference are insufficient to permit the payment of the full preferential amounts described in this paragraph to the holders of the Series D Preferred Stock and any other class or series of the Corporation's capital stock ranking pari passu as to liquidation rights to the Series D Preferred Stock, then all the remaining available assets shall be distributed pro rata among the holders of the then outstanding Series D Preferred Stock and then outstanding shares of any other class or series of the Corporation's capital stock ranking
 

 
2
 

pari passu as to liquidation rights to the Series D Preferred Stock in accordance with such series' respective liquidation preferences.
 
(b)           After the payment of the full preferential amount described in Section 3(a) due to the holders of shares of Series D Preferred Stock and any other series of Preferred Stock ranking prior to the Common Stock as to distributions upon Liquidation, the remaining assets (if any) of the Corporation shall be distributed in accordance with the terms of the Certificate of Incorporation of the Corporation, which in the case of the Series D Preferred Stock shall be pro rata per share in accordance with the aggregate number of shares outstanding  among (i) the holders of the then outstanding shares of Series D Preferred Stock and any other series entitled to participate on the same basis, (ii) the holders of any other series of capital stock of the Corporation entitled to participate in accordance with the terms of their participation and (iii) the holders of the Common Stock and any other shares of capital stock of the Corporation ranking pari passu on a share for share basis with the Common Stock as to distributions upon Liquidation.
 
(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 D Preferred Stock shall receive identical consideration per share, and to the extent that holders of Common Stock receive voting securities, the holders of Series D 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 D 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 D 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 D 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 or the Series B Preferred Stock (other than, in the case of the Series B Preferred Stock, with respect to such subdivision, combination, consolidation or reclassification of the Series B Preferred Stock that results from such a change in the Common Stock), into a greater or lesser number of shares of Common Stock or Series B Preferred Stock, unless such subdivision, combination, consolidation or reclassification shall also apply in a like manner to the outstanding Series D Preferred Stock.
 
Section 6.         Automatic Conversion .  Prior to the Designated Date, the shares of Series D Preferred Stock shall not be convertible into shares of Series B Preferred Stock.  On and after the Designated Date, each share of Series D Preferred Stock shall be automatically converted into one fully paid and non-assessable share of Series B Preferred Stock.  Effective immediately upon the occurrence of the conversion, certificates theretofore evidencing shares of Series D Preferred Stock shall be deemed to evidence that number of shares of Series B Preferred Stock.
 

 
3
 

Section 7.         No Optional Conversion .  At no time may any share of Series D 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 D 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.
 
"Designated Date" means the date that is 20 days after the date on which the Information Statement (as defined in the Purchase Agreement) is first mailed by the Corporation to holders of Common Stock in accordance with Rule 14c-2 under the United States Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder.
 
"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 D 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 Capital Stockholder or the Corporation, is independent of such Person or Persons.
 
"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.
 
"Purchase Agreement" means the Stock Purchase Agreement, dated as of June 16, 2009, among Barclays Bank PLC, Barclays PLC (solely for the purposes of Section 6.16, and Section 6.18 and Section 6.24 thereof) and the Corporation, as may be amended from time to time in accordance with its terms.
 
"Series B Preferred Stock" has the meaning assigned to it in Section 1 hereof.
 
"Series D Preferred Stock" has the meaning assigned to it in Section 1 hereof.
 

 
4
 

"Significant Stockholder" means a Person (or any controlled affiliate of such Person) who beneficially owns in excess of 20% of the Capital Stock issued and outstanding at such time.
 
"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.
 
[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 and Deputy General Counsel, this 1st day of December, 2009.
 

 
By:
/s/ Daniel R. Waltcher
   
Name:
Daniel R. Waltcher
   
Title:
Managing Director and Deputy General Counsel
       
 
6
 
Exhibit 10.1
 

EXECUTION COPY
 
 
 
 
 
 
STOCKHOLDER AGREEMENT
 
 
AMONG
 
 
BLACKROCK, INC.,
 
 
BARCLAYS BANK PLC
 
 
AND
 
BARCLAYS BR HOLDINGS S.À R.L.
 
 
DATED AS OF DECEMBER 1, 2009
 
 
 

 

 
 
 

Table of Contents

Page

ARTICLE I

DEFINITIONS

Section 1.1
Certain Defined Terms
1
Section 1.2
Other Defined Terms
7
Section 1.3
Other Definitional Provisions
7
Section 1.4
Methodology for Calculations
7

ARTICLE II

SHARE OWNERSHIP

Section 2.1
Acquisition of Additional BlackRock Capital Stock
8
Section 2.2
Prohibition of Certain Communications and Actions
10
Section 2.3
Purchases of Additional Securities
11
Section 2.4
BlackRock Share Repurchases
11

ARTICLE III

TRANSFER RESTRICTIONS

Section 3.1
General Transfer Restrictions
12
Section 3.2
Restrictions on Transfer
12
Section 3.3
Right of First Refusal
14
Section 3.4
Legend on Securities
15

ARTICLE IV

CORPORATE GOVERNANCE

Section 4.1
Composition of the Board
15
Section 4.2
Vote Required for Board Action; Board Quorum
16
Section 4.3
Committees
17
Section 4.4
Certificate of Incorporation and Bylaws to be Consistent
17
Section 4.5
Information Rights
17
Section 4.6
Voting Agreements
18
Section 4.7
Related Party Transactions
19

 
 

 
i
 


ARTICLE V

MOST FAVORED NATION

Section 5.1
Most Favored Nation
19

ARTICLE VI

MISCELLANEOUS

Section 6.1
Conflicting Agreements
19
Section 6.2
Termination
19
Section 6.3
Ownership Information
20
Section 6.4
Savings Clause
20
Section 6.5
Amendment and Waiver
20
Section 6.6
Severability
20
Section 6.7
Entire Agreement
20
Section 6.8
Successors and Assigns
21
Section 6.9
Counterparts
21
Section 6.10
Remedies
21
Section 6.11
Notices
21
Section 6.12
Governing Law; Consent to Jurisdiction
23
Section 6.13
Interpretation
23



 
ii
 


 
STOCKHOLDER AGREEMENT
 
STOCKHOLDER AGREEMENT, dated as of December 1, 2009, among BlackRock, Inc., a Delaware corporation ("BlackRock"), Barclays Bank PLC, a corporation organized under the laws of England and Wales ("Barclays"), and Barclays BR Holdings S.à r.l., a société à responsabilité limitée organized under the laws of Luxembourg ("BR Holdings" and, together with Barclays, the "Barclays Parties").
 
WHEREAS, BlackRock, Barclays and Barclays PLC are parties to a Stock Purchase Agreement, dated as of June 16, 2009 (as amended from time to time, the "SPA"), pursuant to which BlackRock is acquiring all of the issued and outstanding equity interests in the Transferred Entities (as such term is defined in the SPA) directly and indirectly owned by Barclays in exchange for shares of BlackRock Common Stock (as defined herein), Series B Participating Stock (as defined herein) and Series D Participating Preferred Stock (as defined herein);
 
WHEREAS, upon the Closing (as such term is defined in the SPA) under the SPA, the Barclays Parties will Beneficially Own (as defined herein) up to 19.9% of the issued and outstanding BlackRock Capital Stock (as defined herein);
 
WHEREAS, it is a condition to the obligations of each of BlackRock and Barclays to consummate the transactions contemplated by the SPA that this Agreement shall have been duly executed and delivered by BlackRock, the Barclays Parties and any appropriate Affiliate; and
 
WHEREAS, the parties hereto desire to enter into this Agreement to establish certain arrangements with respect to the shares of BlackRock Capital Stock to be Beneficially Owned by the Barclays Parties following the Closing, as well as restrictions on certain activities in respect of BlackRock Capital Stock, corporate governance and other related corporate matters;
 
NOW, THEREFORE, in consideration of the premises and of the mutual covenants and obligations hereinafter set forth, the parties hereto hereby agree as follows:
 
 
ARTICLE I
 
DEFINITIONS
 
Section 1.1          Certain Defined Terms .  As used herein, the following terms shall have the following meanings:
 
"Affiliate" means, with respect to any Person, any other Person that directly, or indirectly through one or more intermediaries, controls, is controlled by or is under common control with, such specified Person; provided , however , that solely for purposes of this Agreement, notwithstanding anything to the contrary set forth herein, neither BlackRock nor any of its Controlled Affiliates shall be deemed to be a Subsidiary or Affiliate of any Barclays Party solely by virtue of the Beneficial Ownership by any Barclays Party of BlackRock Capital Stock,
 

 
 
 

the election of Directors nominated by any Barclays Party to the Board, the election of any other Directors nominated by the Board or any other action taken by any Barclays Party in accordance with the terms and conditions of, and subject to the limitations and restrictions set forth on such Person in, this Agreement (and irrespective of the characteristics of the aforesaid relationships and actions under applicable law or accounting principles).
 
"Agreement" means this Stockholder Agreement as it may be amended, supplemented, restated or modified from time to time.
 
"Beneficial Ownership" by a Person of any securities includes ownership by any Person who, directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, has or shares (i) voting power which includes the power to vote, or to direct the voting of, such security; and/or (ii) investment power which includes the power to dispose, or to direct the disposition, of such security; and shall otherwise be interpreted in accordance with the term "beneficial ownership" as defined in Rule 13d-3 adopted by the Commission under the Exchange Act; provided that for purposes of determining Beneficial Ownership, a Person shall be deemed to be the Beneficial Owner of any securities which may be acquired by such Person pursuant to any agreement, arrangement or understanding or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise (irrespective of whether the right to acquire such securities is exercisable immediately or only after the passage of time, including the passage of time in excess of 60 days, the satisfaction of any conditions, the occurrence of any event or any combination of the foregoing), except that in no event will any Barclays Party be deemed to Beneficially Own any securities which it has the right to acquire pursuant to Section 2.3 unless, and then only to the extent that, it shall have actually exercised such right.  For purposes of this Agreement, a Person shall be deemed to Beneficially Own any securities Beneficially Owned by its Affiliates (including as Affiliates for this purpose its officers and directors only to the extent they would be Affiliates solely by reason of their equity interest) or any Group of which such Person or any such Affiliate is or becomes a member; provided , however , that securities Beneficially Owned by the Barclays Parties shall not include, for any purpose under this Agreement, any Voting Securities or other securities held by such Persons and their Affiliates in trust, managed, brokerage, custodial, nominee or other customer accounts; in trading, inventory, lending or similar accounts of such Persons and their Affiliates 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 Persons and their 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 BlackRock or avoiding the provisions of this Agreement.  The term "Beneficially Own" shall have a correlative meaning.
 
"Board" means the Board of Directors of BlackRock.
 
"Business Day" shall mean any day that is not a Saturday, a Sunday or other day on which banks are required or authorized by law to be closed in New York, New York or London, England.
 

 
2
 

"By Laws" means the By-Laws of BlackRock, as amended or supplemented from time to time.
 
"Capital Stock" means, with respect to any Person at any time, any and all shares, interests, participations or other equivalents (however designated, whether voting or non-voting) of capital stock, partnership interests (whether general or limited) or equivalent ownership interests in or issued by such Person.
 
"Commission" means the United States Securities and Exchange Commission.
 
"Common Stock" means the shares of Common Stock, par value $0.01 per share, of BlackRock and any securities issued in respect thereof, or in substitution therefor, in connection with any stock split, dividend or combination, or any reclassification, recapitalization, merger, consolidation, exchange or other similar reorganization.
 
"control" (including the terms "controlled by" and "under common control with"), with respect to the relationship between or among two or more Persons, means the possession, directly or indirectly, of the power to direct or cause the direction of the affairs or management of a Person, whether through the ownership of voting securities, as trustee or executor, by contract or any other means, or otherwise to control such Person within the meaning of such term as used in Rule 405 under the Securities Act.  For purposes of this definition, a general partner or managing member of a Person shall always be considered to control such Person provided , however , that a Person shall not be treated as having any control over any collective investment vehicle to which it provides services unless it and its Affiliates collectively have a proprietary economic interest exceeding 25% of the equity interest in such collective investment vehicle.
 
"Controlled Affiliate" of any Person means a Person that is directly or indirectly controlled by such other Person.
 
"Director" means any member of the Board (other than any advisory, honorary or other non-voting member of the Board).
 
"Equivalent Securities" means at any time shares of any class of Capital Stock or other securities or interests of a Person which are substantially equivalent to the Voting Securities of such Person other than by reason of not having voting rights, including with respect to BlackRock, for the avoidance of doubt, the Series A Participating Preferred Stock, Series B Participating Preferred Stock, Series C Participating Preferred Stock and Series D Participating Preferred Stock.
 
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated by the Commission from time to time thereunder (or under any successor statute).
 
“Executive Officer” has the meaning assigned to it, from time to time, in Federal Reserve Regulation “O”, 12 CFR 215.2(e)(1).
 
"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
 

 
3
 

an arm's length negotiated transaction without time constraints.  With respect to any securities that are traded on a national securities exchange, 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 Participating Preferred Stock of any series shall be the same price per share as the Fair Market Value per share of the Common Stock.  The Fair Market Value of any property or assets, other than securities described in the preceding sentence, with an estimated value of less than 1% of the Fair Market Value of all of the issued and outstanding BlackRock Capital Stock shall be determined by the Board (acting through a majority of the Independent Directors) in its good faith judgment.  The Fair Market Value of all other property or assets shall be determined by an Independent Investment Banking Firm, selected by a majority of the Independent Directors, whose determination shall be final and binding on the parties hereto.  The fees and expenses of such Independent Investment Banking Firm shall be paid by BlackRock.
 
"Group" shall have the meaning assigned to it in Section 13(d)(3) of the Exchange Act.
 
"Independent Director" means any Director who (i) is or would be an "independent director" with respect to BlackRock pursuant to Section 303A.02 of the New York Stock Exchange Listed Company Manual (or any successor provision) and (ii) was not nominated or proposed for nomination by or on behalf of Barclays, any Significant Stockholder, or any Affiliates or Designated Directors of a Barclays Party or a Significant Stockholder.
 
"Independent Investment Banking Firm" means an investment banking firm of nationally recognized standing that in the reasonable judgment of the Person or Persons engaging such firm, taking into account any prior relationship with Barclays, any Significant Stockholder or BlackRock, is independent of such Person or Persons.
 
"Ownership Cap" means, at any time of determination, with respect to the Barclays Parties and their Affiliates (and for purposes of (iii) and (iv) below all directors and Executive Officers of Barclays and its Affiliates), each of (i) 4.9 percent of the Total Voting Power of the Voting Securities of BlackRock issued and outstanding at such time (the "Voting Ownership Cap"), (ii) 19.9 percent of the sum of the Voting Securities and the Participating Preferred Stock of BlackRock issued and outstanding at such time and issuable upon the exercise of any options or other rights outstanding at that time which, if exercised, would result in the issuance of additional Voting Securities or Participating Preferred Stock (the "Total Ownership Cap"), (iii) 24.9 percent of any class of Voting Securities of BlackRock issued and outstanding at such time, (the “Class Ownership Cap”), and (iv) 24.9 percent of the sum of the aggregate number of Voting Securities and the Participating Preferred Stock of BlackRock issued and outstanding at such time and issuable upon the exercise of any options or other rights outstanding at that time which, if exercised, would result in the issuance of additional Voting Securities or Participating Preferred Stock (the “Aggregate Ownership Cap”).
 
"Ownership Percentage" means, with respect to any Person, at any time, the quotient, expressed as a percentage, of (i) with respect to the Voting Ownership Cap (A) the Total Voting Power of all Voting Securities of another Person Beneficially Owned by such Person and its Affiliates divided by (B) the Total Voting Power of all Voting Securities of such
 

 
4
 

other Person issued and outstanding at that time, (ii) with respect to the Total Ownership Cap, (A) the Total Voting Power of all Voting Securities and the total number of Equivalent Securities of another Person Beneficially Owned by such Person and its Affiliates divided by (B) the Total Voting Power of all Voting Securities and the total number of Equivalent Securities of such other Person issued and outstanding at that time and issuable upon the exercise of any options or other rights outstanding at that time which, if exercised, would result in the issuance of additional Voting Securities or Equivalent Securities, (iii) with respect to the Class Ownership Cap (A) the Total Voting Power of any class of Voting Securities of another Person Beneficially Owned by such Person, its Affiliates and its and any of its Affiliates’ Executive Officers and directors divided by (B) the Total Voting Power of such class of Voting Securities of such other Person issued and outstanding at that time, and (iv) with respect to the Aggregate Ownership Cap, (A) the Total Voting Power of all Voting Securities and the total number of Equivalent Securities of another Person Beneficially Owned by such Person, its Affiliates and its and any of its Affiliates’ Executive Officers and directors divided by (B) the Total Voting Power of all Voting Securities and the total number of Equivalent Securities of such other Person issued and outstanding at that time and issuable upon the exercise of any options or other rights outstanding at that time which, if exercised, would result in the issuance of additional Voting Securities or Equivalent Securities.
 
"Ownership Threshold" means, at any time of determination, with respect to the Barclays Parties and their Affiliates, 5 percent of the sum of the Voting Securities of BlackRock and Participating Preferred Stock of BlackRock issued and outstanding at such time.
 
"Participating Preferred Stock" means Series A Participating Preferred Stock, Series B Participating Preferred Stock, Series C Participating Preferred Stock, Series D Participating Preferred Stock and any other series of preferred stock of BlackRock determined by the Board to have economic participation in BlackRock's assets, earnings and distributions substantially equivalent to that of the Series B Participating Preferred Stock.
 
"Person" means any individual, corporation, limited liability company, limited or general partnership, joint venture, association, joint-stock company, trust, unincorporated organization, other entity, government or any agency or political subdivision thereof or any Group comprised of two or more of the foregoing.
 
"Securities Act" means the Securities Act of 1933, as amended, and the rules and regulations promulgated by the Commission from time to time thereunder (or under any successor statute).
 
"Series A Participating Preferred Stock" means the Series A Participating Preferred Stock, par value $.01 per share, of BlackRock and any securities issued in respect thereof, or in substitution therefor, or in substitution therefor in connection with any stock split, dividend or combination, or any reclassification, recapitalization, merger, consolidation, exchange or other similar reorganization.
 
"Series B Participating Preferred Stock" means the Series B Convertible Participating Preferred Stock, par value $.01 per share, of BlackRock and any securities issued in respect thereof, or in substitution therefor, or in substitution therefor in connection with any
 

 
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stock split, dividend or combination, or any reclassification, recapitalization, merger, consolidation, exchange or other similar reorganization.
 
"Series C Participating Preferred Stock" means the Series C Convertible Participating Preferred Stock, par value $.01 per share, of BlackRock and any securities issued in respect thereof, or in substitution therefor, or in substitution therefor in connection with any stock split, dividend or combination, or any reclassification, recapitalization, merger, consolidation, exchange or other similar reorganization.
 
"Series D Participating Preferred Stock" means the Series D Participating Preferred Stock, par value $.01 per share, of BlackRock and any securities issued in respect thereof, or in substitution therefor, or in substitution therefor in connection with any stock split, dividend or combination, or any reclassification, recapitalization, merger, consolidation, exchange or other similar reorganization.
 
"Significant Stockholder" means, at any time of determination, any Person other than the Barclays Parties and their Affiliates that Beneficially Owns 20 percent or more of the BlackRock Capital Stock issued and outstanding at such time.
 
"Subsidiary" means, with respect to any Person, any corporation or other organization, whether incorporated or unincorporated, (i) of which such Person or any other Subsidiary of such Person is a general partner (excluding partnerships, the general partnership interests of which held by such Person or any Subsidiary of such Person do not have a majority of the voting or similar interests in such partnership), or (ii) at least a majority of the securities or other interests of which having by their terms ordinary voting power to elect a majority of the board of directors or others performing similar functions with respect to such corporation or other organization is directly or indirectly owned or controlled by such Person or by any one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries.
 
"Total Voting Power" means the total number of votes entitled to be cast by the holders of the outstanding Capital Stock and any other securities entitled, in the ordinary course, to vote on matters put before the holders of the Capital Stock generally.
 
"Transfer" means, directly or indirectly, to sell, transfer, assign, pledge, encumber, hypothecate or similarly dispose of (by operation of law or otherwise), either voluntarily or involuntarily, or to enter into any contract, option or other arrangement or understanding with respect to the sale, transfer, assignment, pledge, encumbrance, hypothecation or similar disposition of (by operation of law or otherwise), any Capital Stock or any interest in any Capital Stock; provided , however , that a merger, amalgamation, plan of arrangement or consolidation or similar business combination transaction in which Barclays 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 Barclays' outstanding Capital Stock, whether by tender or exchange offer, by share exchange, or otherwise) shall not be deemed to be the Transfer of any BlackRock Capital Stock Beneficially Owned by the Barclays Parties, provided that the primary purpose of any such transaction is not to avoid the provisions of this Agreement and that the successor or surviving person to such a merger, amalgamation, plan of arrangement or consolidation or similar business combination transaction, if not Barclays, expressly assumes all obligations of
 

 
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Barclays under this Agreement.  For purposes of this Agreement, the term Transfer shall include the sale of an Affiliate of any Barclays Party or any Barclays Party's interest in an Affiliate which Beneficially Owns BlackRock Capital Stock unless such Transfer is in connection with a merger, amalgamation, plan of arrangement or consolidation or similar business combination transaction referred to in the first proviso of the previous sentence.
 
"Voting Securities" means at any time shares of any class of Capital Stock or other securities or interests of a Person which are then entitled to vote generally, and not solely upon the occurrence and during the continuation of certain specified events, in the election of Directors or Persons performing a similar function with respect to such Person, and any securities convertible into or exercisable or exchangeable at the option of the holder thereof for such shares of Capital Stock.
 
Section 1.2          Other Defined Terms .  The following terms shall have the meanings defined for such terms in the Sections set forth below:
 
TERM
SECTION
Additional BlackRock Stock Purchase
Section 2.3
BlackRock
Preamble
BlackRock Party
Section 3.3(a)
Barclays
Preamble
Barclays Designee
Section 4.1(a)
BR Holdings
Preamble
DGCL
Section 1.4
Last Look Price
Section 3.2(b)
Litigation
Section 6.11(a)
Management Designee
Section 4.1(a)
Offer
Section 3.3(a)
Offer Notice
Section 3.3(a)
Prohibited Actions
Section 2.2(h)
Related Person
Section 4.7
Significant Stockholder Designee
Section 4.1(a)
SPA
Preamble
Stock Issuance
Section 2.3
Subject Capital Stock
Section 3.3(a)
Transaction Agreement
Section 2.1(d)
   
Section 1.3          Other Definitional Provisions .  The words "hereof", "herein" and "hereunder" and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Article and Section references are to this Agreement unless otherwise specified.
 
The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.
 
Section 1.4          Methodology for Calculations .  For purposes of calculating the number of outstanding shares of BlackRock Capital Stock or Voting Securities and the number
 

 
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of shares of BlackRock Capital Stock or Voting Securities Beneficially Owned by any Person as of any date, any shares of BlackRock Capital Stock or Voting Securities held in BlackRock's treasury or belonging to any Subsidiaries of BlackRock which are not entitled to be voted or counted for purposes of determining the presence of a quorum pursuant to Section 160(c) of the Delaware General Corporation Law (or any successor statute) (the "DGCL") shall be disregarded.
 
 
ARTICLE II
 
SHARE OWNERSHIP
 
Section 2.1          Acquisition of Additional BlackRock Capital Stock .
 
(a)           Except as provided in paragraph (b) below each Barclays Party covenants and agrees with BlackRock that it shall not, and shall not permit any of its Affiliates to, directly or indirectly, acquire, offer or propose to acquire or agree to acquire, whether by purchase, tender or exchange offer, through the acquisition of control of another Person (whether by way of merger, consolidation or otherwise), by joining a partnership, syndicate or other Group or otherwise, the Beneficial Ownership of any additional BlackRock Capital Stock, if after giving effect to such acquisition or action, the Barclays Parties would Beneficially Own BlackRock Capital Stock representing more than any of the Voting Ownership Cap, the Total Ownership Cap or, together with the Executive Officers and directors of the Barclays Parties and their Affiliates, the Class Ownership Cap or the Aggregate Ownership Cap; provided, that neither the Class Ownership Cap nor the Aggregate Ownership Cap permit the Barclays Parties and their Affiliates to exceed the Voting Ownership Cap or the Total Ownership Cap.
 
(b)           Notwithstanding the first paragraph of Section 2.1(a), the acquisition (whether by merger, consolidation, exchange of equity interests, purchase of all or part of the equity interests or assets or otherwise) by any Barclays Party or an Affiliate thereof of any Person that Beneficially Owns BlackRock Capital Stock, or the acquisition of BlackRock Capital Stock in connection with securing or collecting a debt previously contracted in good faith in the ordinary course of such Barclays Party's or such Affiliate's banking, brokerage or securities businesses, shall not constitute a violation of the Ownership Cap; provided that (i) the primary purpose of any such transaction is not to avoid the provisions of this Agreement, including the Ownership Cap, and (ii) in the case of an acquisition of another Person, it uses reasonable best efforts to negotiate terms in connection with the relevant acquisition agreement requiring such other Person to divest itself of sufficient BlackRock Capital Stock it Beneficially Owns so that the Voting Ownership Cap and the Total Ownership Cap would not be exceeded pro forma for the acquisition, with such divestiture to be effected concurrently with, or as promptly as practicable following, the consummation of such acquisition (but in no event more than 120 days following such consummation, or such longer period not in excess of 243 days following such consummation as may be necessary due to the possession of material non-public information or so that neither it nor any of its Affiliates incurs any liability under Section 16(b) of the Exchange Act if, for purposes of Section 16(b), they have not acquired Beneficial Ownership of any other shares of BlackRock Capital Stock or derivatives thereof after the date of the transaction that resulted in the Barclays Parties exceeding the Ownership Cap) and the successor or surviving Person to such transaction, if not such Barclays Party or such Affiliate, expressly assumes all
 

 
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obligations of such Barclays Party or such Affiliate, as the case may be, under this Agreement; and provided , further , that the provisions of paragraph (c) below are complied with.
 
(c)           (i)  If at any time the Barclays Parties and their Affiliates Beneficially Own in the aggregate BlackRock Capital Stock representing more than any of the Voting Ownership Cap, the Total Ownership Cap or, together with the Executive Officers and directors of the Barclays Parties and their Affiliates, the Class Ownership Cap or the Aggregate Ownership Cap, then the Barclays Parties shall, as soon as is reasonably practicable (but in no event longer than 120 days after their Ownership Percentage first exceeds the Voting Ownership Cap, the Total Ownership Cap, the Class Ownership Cap or the Aggregate Ownership Cap or such longer period not in excess of 243 days following such consummation as may be necessary due to the possession of material non-public information or so that neither any Barclays Party nor any of its Affiliates incurs any liability under Section 16(b) of the Exchange Act if, for purposes of Section 16(b), they have not acquired Beneficial Ownership of any other shares of BlackRock Capital Stock or derivatives thereof after the date of the transaction that resulted in the Barclays Parties exceeding the Ownership Cap) Transfer (in any manner that would be permitted by Section 3.2(b) after the lapse of any minimum holding period) a number of shares of BlackRock Capital Stock sufficient to reduce the amount of BlackRock Capital Stock Beneficially Owned by them and their Affiliates to an amount representing not greater than the Ownership Cap; provided , however , that subject to the Total Ownership Cap and in lieu of such Transfer, each Barclays Party shall have the right exercisable in whole or in part, to exchange, or cause BlackRock to exchange, a number of shares of BlackRock Common Stock for Series B Preferred Stock so that the amount of Voting Securities Beneficially Owned by the Barclays Parties and their Affiliates, following such exchange, shall be reduced to an amount representing not greater than the Voting Ownership Cap.
 
(ii)           Notwithstanding any other provision of this Agreement, in no event may any Barclays Party or any of its Affiliates, directly or indirectly, including through any agreement or arrangement, exercise any voting rights, during the term of this Agreement, in respect of any BlackRock Capital Stock Beneficially Owned by the Barclays Parties and their Affiliates representing in excess of the Voting Ownership Cap, the Class Ownership Cap or the Aggregate Ownership Cap.
 
(d)           Any additional BlackRock Capital Stock acquired and Beneficially Owned by Barclays or any of its Affiliates following the Closing shall be subject to the restrictions contained in this Agreement as fully as if such shares of BlackRock Capital Stock were acquired by it at or prior to the Closing.
 
(e)           In addition to the limitations provided in Section 2.1(a), each Barclays Party shall not and shall cause its Affiliates not to acquire Beneficial Ownership of any shares of BlackRock Capital Stock from any Person other than BlackRock or a Significant Stockholder (other than pursuant to an acquisition effected in a manner contemplated by Section 2.1(b)) if after giving effect to such acquisition the Barclays Parties, together with their Affiliates, would Beneficially Own BlackRock Capital Stock representing more than 90 percent of the Voting Ownership Cap or the Total Ownership Cap.
 

 
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Section 2.2          Prohibition of Certain Communications and Actions .  Each Barclays Party shall not and shall cause its Affiliates and its and their directors, officers and other agents acting on their behalf not to, (w) solicit, seek or offer to effect, or effect, (x) negotiate with or provide any information to the Board, any director or officer of BlackRock, any stockholder of BlackRock, any employee or union or other labor organization representing employees of BlackRock or any other Person with respect to, (y) make any statement or proposal, whether written or oral, either alone or in concert with others, to the Board, any director or officer of BlackRock or any stockholder of, any employee or union or other labor organization representing employees of BlackRock or any other Person with respect to, or (z) make any public announcement (except as required by law in respect of actions permitted hereby) or proposal or offer whatsoever (including, but not limited to, any "solicitation" of "proxies" as such terms are defined or used in Regulation 14A under the Exchange Act) with respect to:
 
(a)           any acquisition, offer to acquire, or agreement to acquire, directly or indirectly, by purchase or any other action the purpose or result of which would be to Beneficially Own (i) BlackRock Capital Stock or Voting Securities of any successor to or person in control of BlackRock in an amount which, when added to any other BlackRock Capital Stock then Beneficially Owned by the Barclays Parties and their Affiliates would cause the total amount of BlackRock Voting Securities Beneficially Owned by the Barclays Parties to exceed the Voting Ownership Cap or the Total Ownership Cap, (ii) any equity securities of any Controlled Affiliate of BlackRock, (in each case except to the extent such acquisition, offer or agreement would be permissible under Section 2.1),
 
(b)           any form of business combination or similar or other extraordinary transaction involving BlackRock or any Controlled Affiliate thereof, including, without limitation, a merger, tender or exchange offer or sale of any substantial portion of the assets of BlackRock or any Controlled Affiliate of BlackRock,
 
(c)           any form of restructuring, recapitalization or similar transaction with respect to BlackRock or any Controlled Affiliate of BlackRock,
 
(d)           any purchase of any assets, or any right to acquire any asset (through purchase, exchange, conversion or otherwise), of BlackRock or any Controlled Affiliate of BlackRock, other than investment assets of BlackRock or any Controlled Affiliate of BlackRock in the ordinary course of its banking, brokerage or securities business and other than an insubstantial portion of such assets in the ordinary course of business,
 
(e)           being a member of a Group for the purpose of acquiring, holding or disposing of any shares of BlackRock Capital Stock or any Controlled Affiliate of BlackRock,
 
(f)           selling any share of BlackRock Capital Stock in an unsolicited tender offer that is opposed by the Board,
 
(g)           any proposal to seek representation on the Board except as contemplated by this Agreement or, other than as permitted by the proviso to Section 4.6(a) of this Agreement, any proposal to seek to control or influence the management, Board or policies of BlackRock or any Controlled Affiliate of BlackRock, or
 

 
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(h)           encourage, join, act in concert with or assist (including, but not limited to, providing or assisting in any way in the obtaining of financing for, or acting as a joint or co-bidder with) any third party to do any of the foregoing (the actions referred to in the foregoing provisions of this sentence being referred to as "Prohibited Actions").
 
Nothing in this Section 2.2 shall limit the ability of any Director, including any Barclays Designee, to vote or otherwise participate in deliberations of the Directors in his or her capacity as a Director in such manner as he or she sees fit.  The parties agree that notwithstanding the terms of this Agreement, this Agreement shall not prohibit any Barclays Party from engaging in any activity previously approved by the Board.
 
Section 2.3           Purchases of Additional Securities .  At any time that BlackRock effects an issuance (a "Stock Issuance") of additional Voting Securities or Equivalent Securities other than in connection with any employee restricted stock, stock option, incentive or other benefit plan to any Person or Persons other than any Barclays Party or any Affiliate thereof, each Barclays Party shall, subject to Section 2.1, have the right to purchase from BlackRock (in each instance, an "Additional BlackRock Stock Purchase") (i) additional shares of Participating Preferred Stock such that following such Stock Issuance and such purchase the Barclays Parties and their Affiliates will Beneficially Own shares and/or other securities representing the lesser of (A) the Total Ownership Cap and (B) the same Ownership Percentage of the Total Ownership Cap as they Beneficially Owned immediately prior to such Stock Issuance and (ii) if the total of all Stock Issuances including the Stock Issuance in question since the Closing has the effect, after taking into account any repurchases of BlackRock Capital Stock by BlackRock since the Closing and any Transfers of BlackRock Capital Stock by the Barclays Parties and their Affiliates (other than Transfers to Affiliates), of decreasing the Total Voting Power of BlackRock Capital Stock issued and outstanding after giving effect to such Stock Issuance Beneficially Owned by the Barclays Parties and their Affiliates to 90% or less of the Voting Ownership Cap, additional Voting Securities of the same class or series issued in the Stock Issuance such that following such Stock Issuance and such purchase the Barclays Parties and their Affiliates will Beneficially Own shares and/or other securities representing the lesser of (x) the Voting Ownership Cap and (y) the same Ownership Percentage of the Voting Ownership Cap as the Barclays Parties and their Affiliates Beneficially Owned immediately prior to such Stock Issuance.  If any Barclays Party exercises such right within 30 days after the pricing date of such Stock Issuance and if the purchaser or purchasers of Voting Securities in such Stock Issuance pays cash in consideration for such securities, such Barclays Party shall pay or cause to be paid an equal per security amount of cash consideration in the Additional BlackRock Stock Purchase following such Stock Issuance.  In all other cases, the price that a Barclays Party shall pay to purchase the additional securities shall be the Fair Market Value per unit of the class or series of securities.  BlackRock shall give each Barclays Party written notice of any Stock Issuance as far in advance as practicable and on the date of completion.
 
Section 2.4          BlackRock Share Repurchases .  If BlackRock engages in any share repurchase program or self-tender that has the effect of causing the Barclays Parties' Beneficial Ownership of BlackRock Capital Stock to exceed the Voting Ownership Cap or the Total Ownership Cap, subject to any restrictions in the Exchange Act, (a) the Barclays Parties shall, at the written request of BlackRock, promptly sell such number of shares of BlackRock Capital Stock to BlackRock as shall cause the Barclays Parties' Beneficial Ownership of BlackRock
 

 
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Capital Stock not to exceed the Voting Ownership Cap or the Total Ownership Cap; provided , however , that, subject to the Total Ownership Cap and in lieu of such sale, each Barclays Party shall have the right, exercisable in whole or in part, to exchange, or cause BlackRock to exchange, a number of shares of BlackRock Common Stock for Series B Preferred Stock so that the amount of Voting Securities Beneficially Owned by the Barclays Parties and their Affiliates, following such exchange, shall be reduced to an amount representing not greater than the Voting Ownership Cap; or (b) BlackRock shall, at the written request of any Barclays Party, promptly purchase such number of shares of BlackRock Capital Stock from such Barclays Party as shall cause the Barclays Parties’ Beneficial Ownership of BlackRock Capital Stock not to exceed the Voting Ownership Cap or the Total Ownership Cap.  Notwithstanding anything in this Section 2.4 to the contrary, the Barclays Parties shall not be obligated to sell any shares of BlackRock Capital Stock pursuant to this Section 2.4 if such sale is capable of being exempted under Rule 16b-3 under the Exchange Act (or any successor rule), until BlackRock has taken all necessary action to exempt such sale thereunder.
 
 
ARTICLE III
 
TRANSFER RESTRICTIONS
 
Section 3.1          General Transfer Restrictions .  The right of the Barclays Parties and their Affiliates to Transfer any BlackRock Capital Stock is subject to the restrictions set forth in this Article III, and no Transfer of BlackRock Capital Stock by any Barclays Party or any of its Affiliates may be effected except in compliance with this Article III.  Any attempted Transfer in violation of this Agreement shall be of no effect and null and void, regardless of whether the purported transferee has any actual or constructive knowledge of the Transfer restrictions set forth in this Agreement, and shall not be recorded on the stock transfer books of BlackRock.
 
Section 3.2          Restrictions on Transfer .
 
(a)           Without the prior written consent of BlackRock (acting through a majority of the Independent Directors), which shall not unreasonably be withheld conditioned or delayed, during an initial period of 12 months commencing at the Closing with respect to 100% of the shares of BlackRock Capital Stock acquired from BlackRock and during a period of 12 months commencing on the first anniversary of the Closing with respect to 50% of the shares of BlackRock Capital Stock acquired from BlackRock, the Barclays Parties shall not, and shall not permit their Affiliates to, Transfer any Beneficially Owned BlackRock Capital Stock or agree to Transfer, directly or indirectly, any Beneficially Owned BlackRock Capital Stock; provided that the foregoing restriction shall not prohibit any Barclays Party or any of its Affiliates from Transferring any Beneficially Owned BlackRock Capital Stock (i) to BlackRock pursuant to Section 2.4 or (ii) to an Affiliate of such Barclays Party that agrees in writing with BlackRock to be bound by this Agreement as fully as if it were an initial signatory hereto.
 
(b)           Following the lapse of restrictions on any shares of BlackRock Capital Stock pursuant to Section 3.2(a), the Barclays Parties shall not, and shall not permit their Affiliates to, Transfer any Beneficially Owned BlackRock Capital Stock or agree to Transfer,
 

 
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directly or indirectly, any Beneficially Owned BlackRock Capital Stock; provided that the foregoing restriction shall not be applicable to Transfers of shares as to which such restrictions have lapsed in accordance with any of the following:
 
(i)           to an Affiliate of any Barclays Party which agrees in writing with BlackRock to be bound by this Agreement as fully as if it were an initial signatory hereto;
 
(ii)           pursuant to the restrictions of Rule 144 under the Securities Act applicable to sales of securities by Affiliates of an issuer (regardless of whether any Barclays Party is deemed at such time to be an Affiliate of BlackRock) to any Person who, to the knowledge of the Barclays Parties, pursuant to such Transfer would not be acquiring BlackRock Capital Stock representing in the aggregate more than 2% of the Total Voting Power of BlackRock Capital Stock issued and outstanding;
 
(iii)          pursuant to privately negotiated transactions, in each calendar quarter in an amount not in excess (together with Transfers pursuant to Section 3.2(b)(ii) and (iv) during such calendar quarter) of 4.5% of the sum of the Voting Securities of BlackRock and the Participating Preferred Stock of BlackRock issued and outstanding in one or more transactions to any Person who, to the knowledge of the Barclays Parties, pursuant to such Transfer would not be acquiring BlackRock Capital Stock representing in the aggregate more than 2% of the Total Voting Power of BlackRock Capital Stock issued and outstanding and who after giving effect to such Transfer would not Beneficially Own BlackRock Capital Stock representing in the aggregate more than 5% of the Total Voting Power of BlackRock Capital Stock issued and outstanding; provided, that a Barclays Party or the Affiliate proposing to Transfer pursuant to this Section 3.2(b)(iii) promptly provide to BlackRock written notice required under Section 3.3 and otherwise comply with Section 3.3;
 
(iv)          in each calendar quarter, in an amount not in excess (together with Transfers pursuant to Section 3.2(b)(ii) and (iii)) of 4.5% of the sum of the Voting Securities of BlackRock and the Participating Preferred Stock of BlackRock issued and outstanding, pursuant to a distribution to the public, registered under the Securities Act, in which a Barclays Party uses its commercially reasonable efforts to (A) effect as wide a distribution of such BlackRock Capital Stock as is reasonably practicable, and (B) not knowingly sell BlackRock Capital Stock to any Person who pursuant to such offering would be acquiring BlackRock Capital Stock representing in the aggregate more than 2% of the Total Voting Power of BlackRock Capital Stock issued and outstanding or who after consummation of such offering would Beneficially Own BlackRock Capital Stock representing in the aggregate more than 5% of the Total Voting Power of BlackRock Capital Stock issued and outstanding; or
 
(v)          with the prior written consent of a majority of the Independent Directors; provided, however, that no consent provided by the Independent Directors shall permit any Barclays Party to effect a Transfer to any Person who such Barclays Party knows will pursuant to such Transfer be acquiring BlackRock Capital stock representing in the aggregate more than 2% of the Total Voting Power of BlackRock Capital Stock issued and outstanding.
 
(c)           Subject to Sections 3.2(a) and (b), if any Barclays Party wishes or is required to Transfer an amount of BlackRock Capital Stock constituting more than 10% of the
 

 
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Total Voting Power of BlackRock Capital Stock issued and outstanding after giving effect to such Transfer, such Barclays Party shall coordinate with BlackRock regarding optimizing the manner of distribution and sale of such shares, including whether such sale should occur through an underwritten offering, and shall cooperate in the marketing of any such offering.
 
(d)           In addition to the other restrictions set forth in this Section 3.2, the Barclays Parties shall not sell or transfer any shares of BlackRock Capital Stock to any Person (other than an Affiliate), if following such sale or transfer, the Barclays Parties would have sold or transferred in the aggregate, since the date hereof, Beneficial Ownership of 33 1/3 % or more of the Voting Securities of BlackRock (as calculated for purposes of this Section 3.2(d)).  The percentage provided in this Section 3.2(d) shall be calculated as follows:
 
(i)           The numerator is the total number of shares of the Voting Securities and the Participating Preferred Stock of BlackRock Beneficially Owned by the Barclays Parties on the date hereof which a Barclays Party has subsequently sold or transferred to a Person (other than an Affiliate) plus the number of such shares that the Barclays Party proposes to sell or transfer, divided by:
 
(ii)           the denominator is the total number of the Voting Securities of BlackRock issued and outstanding at the time of the proposed sale or transfer plus the Participating Preferred Stock of BlackRock Beneficially Owned by the Barclays Parties at the time of the proposed sale or transfer.
 
(e)           Each Barclays Party shall reimburse BlackRock for any documented fees and expenses incurred in connection with any Transfer by such Barclays Party pursuant to this Section 3.2 (other than any Transfer pursuant to Sections 3.3(a) and 3.3(b)).
 
Section 3.3          Right of First Refusal .
 
(a)           If either Barclays Party desires at any time to sell any or all of its BlackRock Capital Stock (the "Subject Capital Stock") to a third party in a privately negotiated transaction, such Barclays Party shall deliver a written notice (the “Offer Notice”) to BlackRock within five days of receipt of an offer to purchase the Subject Capital Stock in a privately negotiated transaction (the "Offer").  The Offer Notice shall specify all of the material terms of the Offer, including the number of shares of Subject Capital Stock, the proposed purchase price, the name and address of the third party and any copies of any agreements or documents to be executed or delivered in connection with the Offer, if available at that time.  BlackRock shall have the option (exercisable by written notice to such Barclays Party given within 10 days after receipt of the Offer Notice from such Barclays Party) to purchase all (but not less than all) of the Subject Capital Stock at the same price and on the same terms as specified in the Offer Notice.
 
(b)           If BlackRock does not elect to purchase all of the Subject Capital Stock, the Barclays Parties may within 60 days from the date on which BlackRock received the applicable Offer Notice, sell the Specified Capital Stock upon the same terms and conditions of the Offer.
 
(c)           The closing of any purchase of the Subject Capital Stock by BlackRock under this Section 3.3 shall be held at a place and date specified by BlackRock, but not more
 

 
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than 10 days following the delivery of the written acceptance by BlackRock of the Offer Notice or, if later, five days after receipt of all required regulatory approvals (but in no event more than 60 days following the delivery of the written notice of acceptance by BlackRock of the Offer).
 
Section 3.4          Legend on Securities .
 
(a)           Each certificate representing shares of BlackRock Capital Stock Beneficially Owned by any Barclays Party or any of its Affiliates and subject to the terms of this Agreement shall bear the following legend on the face thereof:
 
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON TRANSFER AND CERTAIN OTHER LIMITATIONS SET FORTH IN A CERTAIN STOCKHOLDER AGREEMENT, DATED AS OF DECEMBER 1, 2009, BETWEEN BLACKROCK, INC. (THE "COMPANY"), BARCLAYS BANK PLC AND BARCLAYS BR HOLDINGS S.À R.L. AS THE SAME MAY BE AMENDED FROM TIME TO TIME (THE "AGREEMENT"), COPIES OF WHICH AGREEMENT ARE ON FILE AT THE PRINCIPAL OFFICE OF THE COMPANY."
 
(b)           Upon any acquisition by any Barclays Party or any of its Affiliates of additional shares of BlackRock Capital Stock, such Barclays Party shall, or shall cause such Affiliate to, submit the certificates representing such shares of BlackRock Capital Stock to BlackRock so that the legend required by this Section 3.4 may be placed thereon (if not so endorsed upon issuance).
 
(c)           BlackRock may make a notation on its records or give instructions to any transfer agents or registrars for BlackRock Capital Stock in order to implement the restrictions on Transfer set forth in this Agreement.
 
(d)           In connection with any Transfer of shares of Beneficially Owned BlackRock Capital Stock, the transferor shall provide BlackRock with such customary certificates, opinions and other documents as BlackRock may reasonably request to assure that such Transfer complies fully with this Agreement and with applicable securities and other laws.  In connection with any Transfer pursuant to Section 3.2(b)(ii), (iii) or (iv), BlackRock shall remove such portion of the foregoing legend as is appropriate in the circumstances.
 
 
ARTICLE IV
 
CORPORATE GOVERNANCE
 
Section 4.1          Composition of the Board .
 
(a)           Following the Closing, BlackRock and the Barclays Parties shall each use its reasonable best efforts to cause the election at each meeting of stockholders of BlackRock of such nominees reasonably acceptable to the Board such that (i) there are no more than 19 Directors; (ii) there are not less than two and not more than four Directors who are members of BlackRock management (each a "Management Designee"); (iii) there are two Directors, each in
 

 
15
 

a different class, who are individuals designated in writing to BlackRock by the Barclays Parties (each, a "Barclays Designee"), provided , however , that if for any period greater than 90 consecutive days the Barclays Parties and their Affiliates shall Beneficially Own less than 10% of the BlackRock Capital Stock issued and outstanding, the Barclays Parties shall promptly cause one of such Barclays Designees to resign and the number of Barclays Designees permissible hereunder shall be reduced to one and; provided , further , that if for any period greater than 90 consecutive days the Barclays Parties and their Affiliates shall Beneficially Own less than 5% of the BlackRock Capital Stock issued and outstanding, the Barclays Parties shall promptly cause a second Barclays Designee to resign and the number of Barclays Designees permissible hereunder shall be reduced to zero; (iv) there are two Directors, each in a different class, who are individuals designated in writing to BlackRock by each Person who is a Significant Stockholder and has held such status since prior to the date of the SPA (each, a "Significant Stockholder Designee");  and (v) the remaining Directors are Independent Directors.
 
(b)           Following the Closing, upon the resignation, retirement or other removal from office of any Management Designee or Barclays Designee (i) BlackRock or a Barclays Party, as the case may be, shall be entitled promptly to designate a replacement Management Designee or Barclays Designee, as the case may be, who meets the qualifications of a Director and is reasonably acceptable to the Board and (ii) BlackRock and the Barclays Parties shall each use its reasonable best efforts to cause the appointment or election of such replacement designee as a Director by the other Directors or by the stockholders of BlackRock.
 
Section 4.2          Vote Required for Board Action; Board Quorum .
 
(a)           Except as provided in this Section 4.2 and in Section 4.7, any determination or other action of or by the Board (other than action by unanimous written consent in lieu of a meeting) shall require the affirmative vote or consent, at a meeting at which a quorum is present, of a majority of directors present at such meeting.
 
 
(b)           In addition to the requirements of Section 4.2(a), BlackRock shall not enter into any agreement providing for, or effectuate any of the following transactions without the prior written approval of Barclays:
 
(i)           any amendment, modification, repeal or waiver of BlackRock's Certificate of Incorporation or By-Laws that would in any material respect adversely alter or change the powers or preferences of the shares of any class of BlackRock Capital Stock held by any Barclays Party;
 
(ii)          any settlement or consent in a regulatory enforcement matter that would be reasonably likely, in the opinion of counsel to Barclays, to cause Barclays or any of its Affiliates to suffer (A) any regulatory disqualification, (B) suspension of registration or license or (C) other material adverse regulatory consequence (which approval may not be unreasonably withheld in the case of this clause (C)); provided, however, that Barclays shall not be entitled to exercise any rights under this Section 4.2(b)(ii) if neither of the Significant Stockholders possesses comparable rights; or
 

 
16
 

(iii)          any voluntary bankruptcy or similar filing or declaration by BlackRock.
 
(c)           A quorum for any meeting of the Board shall require the presence of a majority of the total number of Directors then in office.
 
Section 4.3          Committees .  To the extent permitted by applicable laws, rules and regulations (including any requirements under the Exchange Act or the rules of the New York Stock Exchange or any other applicable securities exchange on which the Common Stock is then listed) and except as otherwise determined by the Board (in accordance with Section 4.2) each committee of the Board shall consist of a majority of Independent Directors, the Audit Committee, the Compensation Committee and, to the extent required by applicable laws, rules and regulations and self-regulatory organization requirements, the Nominating Committee shall consist entirely of Independent Directors and the Executive Committee shall consist of not less than five members of which one shall be a Barclays Designee.  Subject to Sections 4.2 and 4.7 all decisions of such committees shall require the affirmative vote of a majority of the Directors then serving on such committee.
 
Section 4.4          Certificate of Incorporation and Bylaws to be Consistent .  Each of BlackRock and the Barclays Parties shall use its reasonable best efforts to take or cause to be taken all lawful action necessary or appropriate to ensure that at all times the Certificate of Incorporation and the By-laws of BlackRock contain provisions consistent with the terms of this Agreement (including without limitation this Article IV) and none of the Certificate of Incorporation or the By-laws of BlackRock or any of the corresponding constituent documents of BlackRock's Subsidiaries contain any provisions inconsistent therewith or which would in any way nullify or impair the terms of this Agreement or the rights of BlackRock or any Barclays Party hereunder.  Neither BlackRock nor any Barclays Party shall take or cause to be taken any action inconsistent with the terms of this Agreement (including without limitation this Article IV) or the rights of BlackRock or any Barclays Party hereunder.
 
Section 4.5          Information Rights .
 
(a)           BlackRock acknowledges that the investments of each Barclays Party in BlackRock are material and strategic to it. Accordingly, BlackRock shall provide to each Barclays Party, on an ongoing and current basis, such access to and information with respect to BlackRock's business, operations, plans and prospects as either of them may from time to time reasonably determine it requires in order to appropriately manage and evaluate its investment in BlackRock.
 
(b)           To the extent required in order for any Party to comply with applicable law, BlackRock and Barclays will work together in good faith to develop appropriate protocols for each to share with the other aggregate security position information for use in their respective compliance programs.
 
(c)           With respect to any information provided by BlackRock:
 
(i)           Subject to the requirements of law (including the regulations of any applicable stock exchange), the Barclays Parties shall keep confidential, and shall cause their
 

 
17
 

representatives to keep confidential, all information and documents obtained pursuant to this Section 4.5 unless such information (w) is or becomes publicly available other than as a result of a breach of this Section 4.5(c) by it or its representatives; (x) was within its possession prior to being furnished to it by or on behalf of BlackRock, provided that the source of such information was not known by it to be bound by a confidentiality agreement with, or other contractual or legal obligation of confidentiality to, BlackRock with respect to such information; (y) is or becomes available to such Person or any of its representatives on a non-confidential basis from a source other than BlackRock or any of its representatives; provided that such source was not known to it to be bound by a confidentiality agreement with, or other contractual or legal obligation of confidentiality to, BlackRock with respect to such information; or (z) is independently developed by or on its behalf without violating any of its obligations under this Section 4.5(c).
 
(ii)           In the event any Barclays Party believes that it is legally required to disclose any information or documents contemplated by this Section 4.5(c), it shall to the extent possible under the circumstances provide reasonable prior notice to BlackRock so that BlackRock may, at its own expense, seek a protective order or otherwise take reasonable steps to protect the confidentiality of such information.
 
(iii)          Notwithstanding the foregoing, no Barclays Party may disclose any information or documents contemplated by this Section 4.5(c) in a filing with a governmental authority to the extent required by applicable law, provided that it shall to the extent practicable under the circumstances provide prior notice to BlackRock.
 
(iv)          The rights of each Barclays Party and the obligations of BlackRock hereunder shall be subject to applicable laws relating to the exchange of information and other applicable laws.  The provisions of this Section 4.5(c) shall survive any termination of this Agreement.
 
Section 4.6          Voting Agreements .
 
(a)           Each Barclays Party shall, and shall cause any of its Affiliates, to vote or act by written consent all of the shares of BlackRock Capital Stock Beneficially Owned by it (i) in favor of each matter required to effectuate any provision of this Agreement and against any matter the approval of which would be inconsistent with any provision of this Agreement and (ii) to the extent consistent with clause (i) above, in accordance with the recommendation of the Board on all matters approved by the Board in accordance with the provisions of Article IV, including elections of Directors; provided , however , that if the Board shall either fail to nominate for election as a Director either or both of two individuals designated by any Barclays Party who are reasonably acceptable to the Board, or shall unreasonably reject one or more Barclays Designees who is otherwise eligible to serve, then, so long as such individuals otherwise meet the requirements for serving as a Director of BlackRock, the Barclays Parties and their Affiliates shall have the right to nominate such individuals at the applicable meeting of stockholders and to solicit proxies for the election of such individuals and, if such individuals are nominated at such meeting, may vote all of their shares of BlackRock Capital Stock entitled to vote on such matter in favor of the election of such individuals.
 

 
18
 

(b)           Each Barclays Party shall, and shall cause each of its Affiliates who hold BlackRock Capital Stock entitled to vote on any matter, be present in person or represented by proxy at all meetings of securityholders of BlackRock to the extent necessary so that all Voting Securities Beneficially Owned by the Barclays Parties and their Affiliates shall be counted as present for the purpose of determining the presence of a quorum at such meeting and to vote such shares in accordance with this Section 4.6.
 
Section 4.7          Related Party Transactions .  Neither BlackRock nor any of its Controlled Affiliates shall enter into or effectuate any transaction or agreement with any Barclays Party or any of its Affiliates or any director, officer or employee of such Barclays Party or any such Affiliate (each a "Related Person") that is material to BlackRock, unless such transaction or agreement is in effect at the time of the Closing, relates to transactions by or on behalf of clients of BlackRock and its Controlled Affiliates in the ordinary course of business or has been approved by or is consistent with or pursuant to the terms of a policy, transaction or agreement (or form of agreement) approved by, the affirmative vote or consent of a majority of the Directors, excluding the Barclays Designees, present at a meeting at which a quorum is present.
 
 
ARTICLE V
 
MOST FAVORED NATION
 
Section 5.1          Most Favored Nation .  In the event that BlackRock amends, modifies or waives (as distinct from a consent or approval provided for therein) any provision of, or enters into, a stockholder agreement between BlackRock and a Significant Stockholder that involves the grant of rights to a Significant Stockholder that are superior, taking into account the impact of differences in levels of shareholding, regulatory status, noncompetition provisions and other similar matters (the "Contractual Superior Rights"), to those belonging to any Barclays Party under this Agreement, BlackRock shall offer each Barclays Party the opportunity to obtain such Contractual Superior Rights.  BlackRock shall notify each Barclays Party prior to the time such rights become effective and shall afford it the opportunity for at least 20 days determine whether or not it wishes to obtain such Contractual Superior Rights.
 
 
ARTICLE VI
 
MISCELLANEOUS
 
Section 6.1          Conflicting Agreements .  Each party represents and warrants that it has not granted and is not a party to any proxy, voting trust or other agreement that is inconsistent with or conflicts with any provision of this Agreement.
 
Section 6.2          Termination .  Except as otherwise provided in this Agreement, this Agreement shall terminate on the later of the five year anniversary of the Closing and the first date on which the Barclays Parties and their Affiliates Beneficially Own BlackRock Capital Stock representing less than the Ownership Threshold.  Nothing in this Section 6.2 shall be deemed to release any party from any liability for any willful and material breach of this
 

 
19
 

Agreement occurring prior to the termination hereof or to impair the right of any party to compel specific performance by any other party of its obligations under this Agreement.
 
Section 6.3          Ownership Information .
 
(a)           For purposes of this Agreement, all determinations of the amount of outstanding BlackRock Capital Stock shall be based on information set forth in the most recent quarterly or annual report, and any current report subsequent thereto, filed by BlackRock with the Commission, unless BlackRock shall have updated such information by delivery of written notice to each Barclays Party.
 
(b)           If at any time or from time to time BlackRock becomes aware of any event that has caused, or which could reasonably be expected to cause, Beneficial Ownership by the Barclays Parties and their Affiliates of BlackRock Capital Stock to increase above the Ownership Cap, BlackRock shall promptly (but in no event more than five Business Days thereafter) notify each Barclays Party thereof.
 
(c)           BlackRock shall provide to Barclays promptly following its request, the amount of securities then issued and outstanding by BlackRock, including the number of shares (by class) of BlackRock Capital Stock outstanding and the number and kind of option, warrant, convertible security, stock appreciation right, or similar right with an exercise or conversion privilege at a price related to BlackRock Capital Stock, or similar securities with a value derived from the value of BlackRock Capital Stock outstanding.
 
Section 6.4          Savings Clause .  No provision of this Agreement shall be construed to require any party or its Affiliates to take any action that would violate any applicable law (whether statutory or common), rule or regulation.
 
Section 6.5          Amendment and Waiver .  Except as otherwise provided herein, this Agreement may not be amended except by an instrument in writing signed on behalf of each of the parties hereto.  Except as otherwise provided herein, no modification, amendment or waiver of any provision of this Agreement, and no giving of any consent provided for hereunder, shall be effective unless such modification, amendment, waiver or consent is, in the case of BlackRock, approved by a majority of the Independent Directors. The failure of any party to enforce any of the provisions of this Agreement shall in no way be construed as a waiver of such provisions and shall not affect the right of such party thereafter to enforce each and every provision of this Agreement in accordance with its terms.
 
Section 6.6          Severability .  If any provision of this Agreement shall be declared by any court of competent jurisdiction to be illegal, void or unenforceable, all other provisions of this Agreement shall not be affected and shall remain in full force and effect.
 
Section 6.7          Entire Agreement .  Except as otherwise expressly set forth herein, this Agreement and the SPA embody the complete agreement and understanding among the parties hereto with respect to the subject matter hereof and supersede and preempt, solely with respect to the subject matter hereof, any prior understandings, agreements or representations by or between the parties, written or oral, that may have related to the subject matter hereof in any way.  Without limiting the generality of the foregoing, to the extent that any of the terms hereof
 

 
20
 

are inconsistent with the rights or obligations of any Barclays Party under any other agreement with BlackRock, the terms of this Agreement shall govern.
 
Section 6.8          Successors and Assigns .  Neither this Agreement nor any of the rights or obligations of any party under this Agreement shall be assigned, in whole or in part (except by operation of law pursuant to a merger or similar business combination transaction), by any party without the prior written consent of the other parties  (approved, in the case of BlackRock, by a majority of the Independent Directors), provided , that any Barclays Party may assign its rights and obligations hereunder (in whole or in part) to an Affiliate that agrees in writing with BlackRock to be bound by this Agreement as fully as if it were an initial signatory hereto and any such transferee may thereafter make corresponding assignments in accordance with this proviso; provided , further , that BlackRock may assign all or a portion of its rights under Section 3.3 in connection with any particular transaction subject thereto so long as BlackRock remains, obligated in respect of any purchase obligations arising thereunder.  Subject to the foregoing, this Agreement shall bind and inure to the benefit of and be enforceable by the parties hereto and their respective successors and permitted assigns.
 
Section 6.9          Counterparts .  This Agreement may be executed in separate counterparts each of which shall be an original and all of which taken together shall constitute one and the same agreement.
 
Section 6.10        Remedies .
 
(a)           Each party hereto acknowledges that monetary damages would not be an adequate remedy in the event that each and every one of the covenants or agreements in this Agreement are not performed in accordance with their terms, and it is therefore agreed that, in addition to and without limiting any other remedy or right it may have, the non-breaching party will have the right to an injunction, temporary restraining order or other equitable relief in any court of competent jurisdiction enjoining any such breach and enforcing specifically each and every one of the terms and provisions hereof.  Each party hereto agrees not to oppose the granting of such relief in the event a court determines that such a breach has occurred, and to waive any requirement for the securing or posting of any bond in connection with such remedy.
 
(b)           All rights, powers and remedies provided under this Agreement or otherwise available in respect hereof at law or in equity shall be cumulative and not alternative, and the exercise or beginning of the exercise of any thereof by any party shall not preclude the simultaneous or later exercise of any other such right, power or remedy by such party.
 
Section 6.11        Notices .  All notices and other communications hereunder shall be in writing and shall be deemed given if delivered personally, telecopied (upon telephonic confirmation of receipt), on the first Business Day following the date of dispatch if delivered by a recognized next day courier service, or on the third Business Day following the date of mailing if delivered by registered or certified mail, return receipt requested, postage prepaid. All notices hereunder shall be delivered as set forth below, or pursuant to such other instructions as may be designated in writing by the party to receive such notice.
 

 
21
 
 
 
If to BlackRock:
 
c/o BlackRock, Inc.
40 East 52 nd Street
New York, NY 10022
Facsimile:  212-810-8760
Attn:       Laurence D. Fink
 
with a copy (which shall not constitute notice) to:
 
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, NY 10036
Facsimile:  212-735-2000
Attention:        Franklin M. Gittes, Esq.
                      Richard T. Prins, Esq.
 
If to Barclays and BR Holdings:
 
Barclays PLC
1 Churchill Place
Canary Wharf
London
E14 5HP
England
Facsimile:  +44 1452 638157
Attention:        Company Secretary
 
And
 
Barclays BR Holdings S.à r.l.
26b, Boulevard Royal
L-2449
Luxembourg
Attention:        Company Secretary
 
with a copy (which shall not constitute notice) to:
 
Sullivan & Cromwell LLP
1888 Century Park East, Suite 2100
Los Angeles, CA 90067
Facsimile:  310-712-6630
Attention:        Alison S. Ressler, Esq.
                       Eric M. Krautheimer, Esq.

 
22
 

 
Section 6.12        Governing Law; Consent to Jurisdiction .
 
(a)           This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without giving effect to the principles of conflicts of law.  Each of the parties hereto hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction in the Court of Chancery of the State of Delaware (unless such court does not have subject matter jurisdiction in which case the parties submit to the exclusive jurisdiction of the courts of the State of New York located in the Borough of Manhattan) or any court of the United States located in the State of Delaware, for any action, proceeding or investigation in any court or before any governmental authority ("Litigation") arising out of or relating to this Agreement and the transactions contemplated hereby.  Each of the parties hereto hereby irrevocably and unconditionally waives, and agrees not to assert, by way of motion, as a defense, counterclaim or otherwise, in any such Litigation, the defense of sovereign immunity, any claim that it is not personally subject to the jurisdiction of the aforesaid courts for any reason other than the failure to serve process in accordance with this Section 6.12, that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise), and to the fullest extent permitted by applicable law, that the Litigation in any such court is brought in an inconvenient forum, that the venue of such Litigation is improper, or that this Agreement, or the subject matter hereof, may not be enforced in or by such courts and further irrevocably waives, to the fullest extent permitted by applicable law, the benefit of any defense that would hinder, fetter or delay the levy, execution or collection of any amount to which the party is entitled pursuant to the final judgment of any court having jurisdiction.  Each of the parties irrevocably and unconditionally waives, to the fullest extent permitted by applicable law, any and all rights to trial by jury in connection with any Litigation arising out of or relating to this Agreement or the transactions contemplated hereby.
 
(b)           Each of the parties expressly acknowledges that the foregoing waiver is intended to be irrevocable under the laws of the State of Delaware and of the United States of America; provided that consent by the Barclays Parties and BlackRock to jurisdiction and service contained in this Section 6.12 is solely for the purpose referred to in this Section 6.12 and shall not be deemed to be a general submission to said courts or in the State of Delaware other than for such purpose.
 
Section 6.13        Interpretation .  The table of contents and headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the words "include", "includes" or "including" are used in this Agreement, they shall be deemed to be followed by the words "without limitation."
 

 
23
 

 
IN WITNESS WHEREOF, the parties hereto have executed this Stockholder Agreement as of the date first written above.
 

 
BLACKROCK, INC.
   
   
 
By:
 /s/ Daniel R. Waltcher
   
Name:
Daniel R. Waltcher
   
Title:
Managing Director and Deputy General Counsel
       
       
 
BARCLAYS BANK PLC
   
   
 
By:
 /s/ Chris Lucas
   
Name:
Chris Lucas
   
Title:
Director
       
       
 
BARCLAYS BR HOLDINGS S.À R.L.
   
   
 
By:
 /s/ Manfred Zisselsberger
   
Name:
Manfred Zisselsberger
   
Title:
Attorney

 
[Signature page of Stockholder Agreement]
 

 
Exhibit 10.2
EXECUTION COPY
 
 
$2,000,000,000
 
REVOLVING CREDIT AGREEMENT
 
dated as of December 1, 2009,
 
by and among
 
BLACKROCK, INC.,
 
as Borrower,
 
BARCLAYS BANK PLC ,
 
as Lender

THE LENDERS PARTY HERETO,
 
BARCLAYS BA NK PLC,
as Administrative Agent,
 
and
 
BARCLAYS CAPITAL,
as Sole Lead Arranger, Sole Lead Bookrunner and Syndication Agent
 



­
 
 
 

Table of Contents
 
Page
 
ARTICLE I
 
DEFINITIONS
     
Section 1.1
Definitions
1
Section 1.2
Other Definitions and Provisions
19
Section 1.3
Accounting Terms
20
Section 1.4
Rounding
20
Section 1.5
References to Agreement and Laws
20
Section 1.6
Times of Day
20
     
ARTICLE II
 
REVOLVING CREDIT FACILITY
     
Section 2.1
Revolving Credit Loans
20
Section 2.2
Procedure for Advances of Revolving Credit Loans.
21
Section 2.3
Repayment and Prepayment of Revolving Credit.
22
Section 2.4
Permanent Reduction of the Commitment.
23
Section 2.5
Termination of Credit Facility
23
     
ARTICLE III
 
GENERAL LOAN PROVISIONS
     
Section 3.1
Interest.
24
Section 3.2
Notice and Manner of Conversion or Continuation of Revolving Credit Loans
26
Section 3.3
Fees.
26
Section 3.4
Manner of Payment.
26
Section 3.5
Evidence of Indebtedness.
27
Section 3.6
Adjustments
27
Section 3.7
Nature of Obligations of Lenders Regarding Extensions of Credit; Assumption by the Administrative Agent
28
Section 3.8
Changed Circumstances.
29
Section 3.9
Indemnity
30
Section 3.10
Increased Costs.
30
Section 3.11
Taxes.
32
Section 3.12
Mitigation Obligations; Replacement of Lenders.
34
     


 
- i -
 


ARTICLE IV
 
CONDITIONS OF EFFECTIVENESS
     
Section 4.1
Reserved
35
Section 4.2
Conditions to Effectiveness
35
Section 4.3
Conditions to All Extensions of Credit
38
Section 4.4
Closing Date
39
     
ARTICLE V
 
REPRESENTATIONS AND WARRANTIES OF THE BORROWER
     
Section 5.1
Representations and Warranties
39
Section 5.2
Survival of Representations and Warranties, Etc.
43
     
ARTICLE VI
 
FINANCIAL INFORMATION AND NOTICES
     
Section 6.1
Financial Statements.
43
Section 6.2
Officer’s Compliance Certificate
44
Section 6.3
Other Reports
44
Section 6.4
Notice of Litigation and Other Matters
44
Section 6.5
Accuracy of Information
44
     
ARTICLE VII
 
AFFIRMATIVE COVENANTS
     
Section 7.1
Preservation of Corporate Existence and Related Matters
45
Section 7.2
Maintenance of Property
45
Section 7.3
Insurance
45
Section 7.4
Accounting Methods and Financial Records
45
Section 7.5
Payment of Taxes
45
Section 7.6
Compliance With Laws and Approvals
46
Section 7.7
Visits and Inspections
46
Section 7.8
Use of Proceeds
46
Section 7.9
Most Favored Nation Status
46
     


 
- ii -
 


ARTICLE VIII
 
FINANCIAL COVENANTS
     
Section 8.1
Leverage Ratio
46
     
ARTICLE IX
 
NEGATIVE COVENANTS
     
Section 9.1
Limitations on Liens
47
Section 9.2
Limitations on Mergers and Liquidation
48
Section 9.3
Sale of All or Substantially All Assets
48
Section 9.4
Nature of Business
48
     
ARTICLE X
 
DEFAULT AND REMEDIES
     
Section 10.1
Events of Default
49
Section 10.2
Remedies
51
Section 10.3
Rights and Remedies Cumulative; Non-Waiver; etc.
51
Section 10.4
Crediting of Payments and Proceeds
52
Section 10.5
Administrative Agent May File Proofs of Claim
52
     
ARTICLE XI
 
THE ADMINISTRATIVE AGENT
     
Section 11.1
Appointment and Authority
53
Section 11.2
Rights as a Lender
53
Section 11.3
Exculpatory Provisions
53
Section 11.4
Reliance by the Administrative Agent
54
Section 11.5
Delegation of Duties
55
Section 11.6
Resignation of Administrative Agent.
55
Section 11.7
Non-Reliance on Administrative Agent and Other Lenders
56
Section 11.8
No Other Duties, etc.
56
     


 
- iii -
 


ARTICLE XII
 
MISCELLANEOUS
     
Section 12.1
Notices.
56
Section 12.2
Amendments, Waivers and Consents
58
Section 12.3
Expenses; Indemnity.
59
Section 12.4
Right of Setoff.
61
Section 12.5
Governing Law.
61
Section 12.6
Waiver of Jury Trial
62
Section 12.7
Reversal of Payments
62
Section 12.8
Injunctive Relief; Punitive Damages.
63
Section 12.9
Accounting Matters
63
Section 12.10
Successors and Assigns; Participations.
63
Section 12.11
Confidentiality
66
Section 12.12
Performance of Duties
67
Section 12.13
All Powers Coupled with Interest
67
Section 12.14
Survival of Indemnities
67
Section 12.15
Titles and Captions
67
Section 12.16
Severability of Provisions
67
Section 12.17
Counterparts
67
Section 12.18
Integration
67
Section 12.19
Term of Agreement
68
Section 12.20
Advice of Counsel, No Strict Construction
68
Section 12.21
USA Patriot Act
68
Section 12.22
Inconsistencies with Other Documents; Independent Effect of Covenants.
68


EXHIBITS
 
Exhibit A-1
-
Form of Revolving Credit Note
Exhibit B
-
Form of Notice of Borrowing
Exhibit C
-
Form of Notice of Account Designation
Exhibit D
-
Form of Notice of Prepayment
Exhibit E
-
Form of Notice of Conversion/Continuation
Exhibit F
-
Form of Officer’s Compliance Certificate
Exhibit G
-
Form of Assignment and Assumption

 
SCHEDULES
 
Schedule 1.1
-
Commitments
Schedule 5.1(f)
-
ERISA Plans
Schedule 5.1(j)
-
Litigation
Schedule 9.1
-
Existing Liens

 
- iv -
 

CREDIT AGREEMENT, dated as of December 1, 2009, by and among BLACKROCK, INC., a Delaware corporation (the “ Borrower ”), BARCLAYS BANK PLC (the “ Lender ”), the lenders who are or may become a party to this Agreement (collectively, the “ Lenders ”) and BARCLAYS BANK PLC, as Administrative Agent for the Lenders, and BARCLAYS CAPITAL, as Sole Lead Arranger, Sole Lead Bookrunner and Syndication Agent.
 
STATEMENT OF PURPOSE
 
The Borrower has requested, and the Lenders have agreed, to extend certain credit facilities to the Borrower on the terms and conditions of this Agreement.  The proceeds of the borrowings hereunder are to be used to finance the Acquisition or to refinance Qualifying Commercial Paper.
 
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, such parties hereby agree as follows:
 
ARTICLE I
 
DEFINITIONS
 
Section 1.1         Definitions .  The following terms when used in this Agreement shall have the meanings assigned to them below:
 
“ Acquisition ” means the acquisition of the Transferred Equity Interests by Borrower pursuant to the Stock Purchase Agreement, dated June 16, 2009, by and between Barclays Bank and Borrower.
 
“ Administrative Agent ” means Barclays Bank PLC, in its capacity as Administrative Agent hereunder, and any successor thereto appointed pursuant to Section 11.6 .
 
“ Administrative Agent’s Office ” means the office of the Administrative Agent specified in or determined in accordance with the provisions of Section 12.1(c) .
 
“ Administrative Questionnaire ” means an administrative questionnaire in a form supplied by the Administrative Agent.
 
“ Affiliate ” means, with respect to any Person, any other Person (other than, with respect to the Borrower, a Subsidiary or Excluded Subsidiary of the Borrower) which directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such first Person or any of its Subsidiaries.  As used in this definition, the term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract or otherwise.   For the avoidance of doubt neither of the Existing Shareholders shall be treated as an Affiliate of the Borrower on the basis of its beneficial ownership of Capital Stock of the Borrower so long as such Existing Shareholder is subject to a stockholders agreement with the Borrower on substantially the same terms as the stockholders agreement to which it is a party as of the date of this Agreement.
 


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“ Agreement ” means this Revolving Credit Agreement, as amended, restated, supplemented or otherwise modified from time to time.
 
“ Aggregate Commitment ” means the aggregate amount of the Lenders’ Commitments hereunder, as such amount may be increased, reduced or otherwise modified at any time pursuant to the terms hereof.  On the Closing Date, the Aggregate Commitment shall be Two Billion Dollars ($2,000,000,000.00).
 
“ Applicable Law ” means all applicable provisions of constitutions, laws, statutes, ordinances, rules, treaties, regulations, permits, licenses, approvals, interpretations and orders of courts or Governmental Authorities and all orders and decrees of all courts and arbitrators.
 
“ Applicable Percentage ” means, for purposes of calculating (a) the applicable percentage for each of the Base Rate and the LIBOR Rate for purposes of Section 3.1(a) and   (b) the commitment fee for purposes of Section 3.3(a):
 
 
Debt
Applicable Percentage Per Annum
Level
Rating
Drawn Spread over LIBOR
Drawn Spread
over Base Rate
Commitment Fee
I
≥ A1/A+
2.00%
0.00%
0.15%
II
=A2/A
2.125%
0.00%
0.175%
III
=A3/A-
2.375%
0.00%
0.20%
IV
≤ Baal/BBB+
3.00%
0.00%
0.375%

provided , that if S&P or Moody’s, as applicable, shall not have in effect a Debt Rating (other than by reason of the circumstances referred to in the last sentence of this definition), then such Debt Rating shall be deemed to be Level IV.  In the event that the Debt Ratings publicly announced by S&P and Moody’s listed above differ by (a) one Level, the Applicable Percentage shall be that Level which corresponds to the Debt Rating which is the higher of such announced Debt Ratings, and (b) two or more Levels, the Applicable Percentage shall be that Level which corresponds to the Debt Rating which is one rating immediately above the lowest of such announced Debt Ratings.  Any change in the Applicable Percentage shall be effective (a) as to any increase in the Debt Rating, as of the Business Day on which the increase in the applicable Debt Rating is announced or is made publicly available, and (b) as to any decrease in the applicable Debt Rating, as of the Business Day on which the decrease in the applicable Debt Rating is announced or is made publicly available.  If the rating systems of S&P or Moody’s shall change, or if all of such rating agencies shall cease to be in the business of rating corporate debt obligations, the Borrower and the Lenders shall negotiate in good faith to amend this definition to reflect such changed rating system or the unavailability of ratings from such rating agencies and, pending the effectiveness of any such amendment, the Applicable Percentage shall be determined by reference to the Debt Rating most recently in effect prior to such change or cessation.
 
“ Assignment and Assumption ” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required
 

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by Section 12.10 ), and accepted by the Administrative Agent, in substantially the form of Exhibit G or any other form approved by the Administrative Agent.
 
“ Attributable Indebtedness ” means, on any date, (a) in respect of any Capital Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease, the capitalized amount or principal amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a Capital Lease.
 
“ Availability Period ” means the period from and including the Effective Date to but excluding the earlier of the Maturity Date and the date of termination of the Aggregate Commitments in accordance with the terms of this Agreement.
 
“ Base Rate ” means, at any time, the higher of (a) the Prime Rate and (b) the Federal Funds Rate plus 1/2 of 1%; each change in the Base Rate shall take effect simultaneously with the corresponding change or changes in the Prime Rate or the Federal Funds Rate.
 
“ Base Rate Loan ” means any Loan bearing interest at a rate based upon the Base Rate as provided in Section 3.1(a) .
 
“ Borrower ” has the meaning assigned thereto in the introductory paragraph hereto.
 
“ Business Day ” means any day other than a Saturday, Sunday or legal holiday on which banks in New York, New York, are open for the conduct of their commercial banking business and if such day relates to any interest rate settings as to any LIBOR Rate Loan, any funding, disbursements, settlements and payments in respect of any LIBOR Rate Loan, or any other dealings in Dollars to be carried out pursuant to this Agreement in respect of any such LIBOR Rate Loan, means any such day on which dealings in deposits in Dollars are conducted by and between banks in the London interbank eurodollar market.
 
“ Capital Lease ” means any lease of any property by the Borrower or any of its Subsidiaries, as lessee, that should, in accordance with GAAP, be classified and accounted for as a capital lease on a Consolidated balance sheet of the Borrower and its Subsidiaries.
 
“ Capital Stock ” means (a) in the case of a corporation, capital stock, (b) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of capital stock, (c) in the case of a partnership, partnership interests (whether general or limited), (d) in the case of a limited liability company, membership interests, (e) in the case of any other Person, any similar ownership interests and (f) with respect to the foregoing items (a) through (e), any and all warrants or options to purchase any of the foregoing.
 
“ Change in Control ” means (a) an event or series of events by which (i) any Person or group of Persons (within the meaning of Section 13(d) of the Securities Exchange Act
 

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of 1934, as amended) other than the Existing Shareholders shall obtain ownership or control in one or more series of transactions involving the Capital Stock of the Borrower representing more than fifty percent (50%) of Capital Stock of the Borrower ordinarily entitled to vote in the election of members of the board of directors of the Borrower or (ii) there shall have occurred under any indenture or other instrument evidencing any Indebtedness in excess of $100,000,000 any “change in control” or a similar triggering event under a provision (as set forth in the indenture, agreement or other evidence of such Indebtedness) obligating the Borrower to repurchase, redeem or repay all or any part of the Indebtedness or Capital Stock provided for therein for cash or (b) during any period of 25 consecutive calendar months, commencing on the date of this Agreement, the ceasing of those individuals (the “Continuing Directors”) who (i) were directors of the Borrower on the first day of each such period or (ii) subsequently became directors of the Borrower and whose initial election or initial nomination for election subsequent to that date was approved by a majority of the Continuing Directors then on the board of directors of the Borrower, to constitute a majority of the board of Directors of the Borrower.
 
“ Change in Law ” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental Authority.
 
“ Closing ” has the meaning granted in the Stock Purchase Agreement.
 
“ Closing Date ” means the date on which both (i) the Effective Date shall have occurred and (ii) the date the “Initial Closing Date” occurs under the Stock Purchase Agreement.
 
“ Code ” means the Internal Revenue Code of 1986, and the rules and regulations thereunder, each as amended or modified from time to time.
 
“ Commitment ” means (a) as to any Lender, the obligation of such Lender to make Loans at any time or from time to time pursuant to the terms hereof and (b) as to all Lenders, the aggregate commitment of all Lenders to make Loans, not to exceed the amount set forth opposite such Lender’s name on Schedule 1.1 hereto.
 
“ Commitment Letter ” means the Amended and Restated Commitment Letter, dated as of August 7, 2009, from Barclays Bank PLC, Citicorp North America, Inc., Credit Suisse, Cayman Islands Branch and Banc of America Bridge, LLC to BlackRock, Inc.
 
“ Commitment Percentage ” means, as to any Lender at any time, the ratio of (a) the amount of the Commitment of such Lender to (b) the Aggregate Commitment.
 
“ Consolidated ” means, when used with reference to financial statements or financial statement items of any Person, such statements or items on a consolidated basis in accordance with, except as otherwise set forth herein, applicable principles of consolidation under GAAP.
 

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“ Consolidated EBITDA ” means, for any period, the sum of the following determined on a Consolidated basis, without duplication, for the Borrower and its Subsidiaries (other than Excluded Subsidiaries) in accordance with GAAP:  (a) Consolidated Net Income for such period plus (b) the sum of the following to the extent deducted in determining Consolidated Net Income for such period: (i) income and franchise taxes, (ii) Consolidated Interest Expense, (iii) amortization, depreciation and other non-cash charges (except to the extent that such non-cash charges are reserved for cash charges to be taken in the future), (iv) extraordinary, unusual or otherwise non-recurring charges and losses (including from discontinued operations), (v) expenses under the Borrower’s and its Subsidiaries’ retention and incentive plans or otherwise that are  actually, directly or indirectly, funded by any of the Existing Shareholders, and (vi) compensation and professional fees incurred in connection with the SSR Acquisition, the Merrill Lynch Investment Managers Transaction and the Acquisition, less (c) extraordinary, unusual or otherwise non-recurring gains (including from discontinued operations).  For purposes of this Agreement, Consolidated EBITDA shall be adjusted on a pro forma basis, in a manner reasonably acceptable to the Borrower and the Administrative Agent, to include, as of the first day of any applicable period, any acquisition closed during such period, including, without limitation, (A) adjustments reflecting any non-recurring costs and any extraordinary expenses of any acquisition closed during such period calculated on a basis consistent with GAAP and Regulation S-X of the Securities Exchange Act of 1934, as amended, or as approved by the Administrative Agent and (B) the Consolidated EBITDA and Consolidated Total Funded Indebtedness attributable to the Acquisition.
 
“ Consolidated Interest Expense ” means, with respect to the Borrower and its Subsidiaries for any period, the gross interest expense (including, without limitation, interest expense attributable to Capital Leases and all net payment obligations pursuant to Interest Rate Contracts) of the Borrower and its Subsidiaries (other than Excluded Subsidiaries), all determined for such period on a Consolidated basis, without duplication, in accordance with GAAP.
 
“ Consolidated Net Income ” means, with respect to the Borrower and its Subsidiaries, for any period of determination, the net income (or loss) of the Borrower and its Subsidiaries (other than Excluded Subsidiaries) for such period, including the net income (or loss) of any Person accrued prior to the date it becomes a Subsidiary of such Person or is merged into or consolidated with such Person or any of its Subsidiaries or that Person’s assets are acquired by such Person or any of its Subsidiaries except to the extent included pursuant to clauses (a) and (b) below, determined on a Consolidated basis in accordance with GAAP; provided that there shall be excluded from Consolidated Net Income (a) the net income (or loss) of any Person (other than a Subsidiary which shall be subject to clause (b) below), in which the Borrower or any of its Subsidiaries has a joint interest with a third party, except to the extent such net income is actually paid in cash to the Borrower or any of its Subsidiaries by dividend or other distribution during such period and (b) the net income (if positive) of any Material Subsidiary that is a Domestic Subsidiary to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary to the Borrower or any of its Subsidiaries of such net income is not during the entirety of any such period of determination permitted by
 

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- 5 -
 

operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute rule or governmental regulation applicable to such Subsidiary.
 
“ Consolidated Leverage Ratio ” means, as of any date of determination, the ratio of (a) Consolidated Total Funded Indebtedness on such date to (b) Consolidated EBITDA   for the period of four (4) consecutive fiscal quarters ending on or immediately prior to such date.
 
“ Consolidated Total Funded Indebtedness ” means, as of any date of determination with respect to the Borrower and its Subsidiaries (other than Excluded Subsidiaries) on a Consolidated basis without duplication, the sum of the following calculated, and only to the extent set forth on their consolidated balance sheet as a liability, in accordance with GAAP:
 
(a)            all indebtedness for borrowed money including, but not limited to, obligations evidenced by bonds, debentures, notes or other similar instruments of any such Person;
 
(b)            all obligations to pay the deferred purchase price of property or services of any such Person (including, without limitation, all obligations under non-competition, earn-out or similar agreements to the extent the foregoing are characterized as indebtedness in accordance with GAAP), except trade payables arising in the ordinary course of business;
 
(c)            the Attributable Indebtedness of such Person with respect to such Person’s obligations in respect of Capital Leases and Synthetic Leases (regardless of whether accounted for as indebtedness under GAAP);
 
(d)            all Consolidated Total Funded Indebtedness of any other Person secured by a Lien on any asset owned or being purchased by the Borrower or any of its Subsidiaries (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by the Borrower or any of its Subsidiaries or is limited in recourse;
 
(e)            all obligations of any such Person to redeem, repurchase, exchange or defease, with cash, any Capital Stock of such Person;
 
(f)            all Guaranty Obligations of any such Person; and
 
(g)            amounts advanced or otherwise paid (without duplication) to the Borrower or any of its Material Subsidiaries in connection with any Permitted Securitization;
 
less , the aggregate amount of “Consolidated Total Funded Indebtedness” described in clauses (a) through (g) above of any Material Subsidiary that is a Domestic Subsidiary whose net income is excluded from the calculation of “Consolidated Net Income” of the Borrower and its Subsidiaries during any applicable period of determination pursuant to clause (b) of the definition of “Consolidated Net Income”;
 

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less the Unrestricted Cash as reflected on the Consolidated balance sheet of the Borrower (determined in accordance with GAAP) as of the last day of any applicable period of determination.
 
For all purposes hereof, the Consolidated Total Funded Indebtedness of any Person shall include the Consolidated Total Funded Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Consolidated Total Funded Indebtedness is expressly made non-recourse to such Person or such Person’s sole material asset is its interest in such partnership or joint venture.  For the avoidance of doubt, Consolidated Total Funded Indebtedness shall not include any obligations or liabilities arising under or in connection with any annuities, insurance policies, insurance contracts or any other similar agreements.
 
“ Debt Rating ” means, as of any date of determination, the Borrower’s counterparty credit rating as determined by S&P or Moody’s, as appropriate.
 
“ Debt Transactions ” means any incurrence by the Borrower of bank or institutional loans or issuance by the Borrower of any debt (including hybrid or convertible debt securities), other than (i) any amounts drawn under the Existing Revolving Credit Facility (including amounts drawn pursuant to any increase in the “Aggregate Commitments” thereunder in an amount up to $500,000,000, provided that amounts drawn as a result of an increase of “Aggregate Commitments” in excess of $500,000,000 shall be considered a Debt Transaction) and (ii) commercial paper issued by the Borrower in an amount which does not exceed the available undrawn Aggregate Commitments under the Existing Revolving Credit Facility.
 
“ Default ” means any of the events specified in Section 10.1 which with the passage of time, the giving of notice or any other condition required by Section 10.1 , would constitute an Event of Default.
 
“ Defaulting Lender ” means any Lender that (a) has failed to fund any portion of the Revolving Credit Loans within one (1) Business Day of the date required to be funded by it hereunder, (b) has otherwise failed to pay over to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within one (1) Business Day of the date when due, unless such amount is the subject of a good faith dispute, or (c) has been deemed insolvent or become the subject of a bankruptcy or insolvency proceeding.
 
“ Disclosed Litigation Matters ” shall have the meaning assigned thereto in Section 5.1(j) .
 
“ Dollars” or “$ ” means, unless otherwise qualified, dollars in lawful currency of the United States.
 
“ Domestic Subsidiary ” means any Subsidiary organized under the laws of any political subdivision of the United States.
 

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“ Effective Date ” means the Business Day upon which each condition described in Section 4.2 shall be satisfied or waived in all respects in a manner acceptable to each of the Lenders in their sole discretion.
 
“ Eligible Assignee ” means (a) a Lender, (b) an Affiliate of a Lender and (c) any other Person (other than a natural person) approved by (i) the Administrative Agent, and (ii) unless an Event of Default has occurred and is continuing, the Borrower (each such approval not to be unreasonably withheld or delayed); provided that notwithstanding the foregoing, “Eligible Assignee” shall not include the Borrower or any of the Borrower’s Affiliates or Subsidiaries.
 
“ Employee Benefit Plan ” means any employee benefit plan within the meaning of Section 3(3) of ERISA which (a) is established or maintained by the Borrower or any Subsidiary or (b) with respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, has at any time within the preceding six (6) years been established or maintained by the Borrower, any Subsidiary or any current or former ERISA Affiliate.
 
“ Environmental Claims ” means any and all administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, accusations, allegations, notices of noncompliance or violation, investigations (other than internal reports prepared by any Person in the ordinary course of business and not in response to any third party action or request of any kind) or proceedings relating in any way to any actual or alleged violation of or liability under any Environmental Law or relating to any permit issued, or any approval given, under any such Environmental Law, including, without limitation, any and all claims by Governmental Authorities for enforcement, cleanup, removal, response, remedial or other actions or damages, contribution, indemnification cost recovery, compensation or injunctive relief resulting from Hazardous Materials or arising from alleged injury or threat of injury to human health or the environment.
 
“ Environmental Laws ” means any and all federal, foreign, state, provincial and local laws, statutes, ordinances, codes, rules, standards and regulations, permits, licenses, approvals, interpretations and orders of courts or Governmental Authorities, relating to the protection of human health or the environment, including, but not limited to, requirements pertaining to the manufacture, processing, distribution, use, treatment, storage, disposal, transportation, handling, reporting, licensing, permitting, investigation or remediation of Hazardous Materials.
 
“ Equity Transaction ” means any issuance of the Borrower of any hybrid or convertible equity securities or preferred or common equity securities.
 
“ ERISA ” means the Employee Retirement Income Security Act of 1974, and the rules and regulations thereunder, each as amended or modified from time to time.
 

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“ ERISA Affiliate ” means any Person who together with the Borrower is treated as a single employer within the meaning of Section 414(b), (c), (m) or (o) of the Code or Section 4001(b) of ERISA.
 
“ Eurodollar Reserve Percentage ” means, for any day, with respect to any LIBOR Rate Loan, the percentage (expressed as a decimal and rounded upwards, if necessary, to the next higher 1/100th of 1%) which is in effect for such day as prescribed by the Board of Governors of the Federal Reserve System (or any successor) for determining the maximum reserve requirement (including, without limitation, any basic, supplemental or emergency reserves) in respect of eurocurrency liabilities or any similar category of liabilities for a member bank of the Federal Reserve System in New York City.
 
“ Event of Default ” means any of the events specified in Section 10.1 ; provided that any requirement for passage of time, giving of notice, or any other condition required by Section 10.1 , has been satisfied.
 
“ Excess Equity Proceeds ” means the Net Proceeds of any Equity Transaction  received by Borrower on or after the Transaction Announcement Date to the extent the amount of such Net Proceeds in the aggregate exceeds $3,100,000,000.
 
“ Excluded Subsidiary ” shall mean (i) any investment fund or other investment vehicle which the Borrower or any of its Affiliates participates in as an investor (including for warehousing, seeding or other purposes), or acts for as a managing member, adviser, manager, co-manager or any comparable position, or any entity intended to be or becoming any of the foregoing (any such entity, an “ Investment Fund ” ), (ii) any entity in which the Borrower or any of its Affiliates invests excess cash and which is not intended to be or become an operating subsidiary (any such entity, an “Investment Entity”), (iii) any Subsidiary of such Investment Fund or Investment Entity and (iv) any entity whose primary purpose is to acquire investments of any nature whatsoever pending their transfer to an Investment Fund.  For the avoidance of doubt, each Excluded Subsidiary shall not be subject to any of the covenants contained in Article IX hereof.
 
“ Excluded Taxes ” means, with respect to the Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, (a) taxes imposed on or measured by its overall net income or net profits (however denominated), and franchise taxes imposed on it (in lieu of income taxes), by the jurisdiction (or any political subdivision thereof) under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable Lending Office is located, (b) any branch profits taxes imposed by the United States or any similar tax imposed by any other jurisdiction in which the Borrower is located and (c) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower under Section 3.12(b) ), any withholding tax that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party hereto (or designates a new Lending Office) or is attributable to such Foreign Lender’s failure or inability (other than as a result of a
 

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Change in Law) to comply with Section 3.11(e) other than due to a change in law as provided in Section 3.11(e) .
 
“ Existing Revolving Credit Facility ” means the Five-Year Revolving Credit Agreement dated August 22, 2007, by and among BlackRock, Inc., Wachovia Bank, National Association, as administrative agent and the other parties thereto (as such agreement may be amended, restated, supplemented or otherwise modified from time to time).
 
“ Existing Shareholders ” means The PNC Financial Services Group, Inc., Merrill Lynch & Co., Inc. and their respective Affiliates.
 
 “ Extensions of Credit ” means, as to any Lender at any time, (a) an amount equal to the aggregate principal amount of all Revolving Credit Loans made by such Lender then outstanding or (b) the making of or participation in any Loan by such Lender, as the context requires.
 
“ Federal Funds Rate ” means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers on such day (or, if such day is not a Business Day, for the immediately preceding Business Day), as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day, provided that if such rate is not so published for any day which is a Business Day, the average of the quotation for such day on such transactions received by the Administrative Agent from three federal funds brokers of recognized standing selected by the Administrative Agent.
 
“ Fee Letters ” means the separate fee letter agreements executed by the Borrower and the Administrative Agent and/or certain of its affiliates, and (in the case of the upfront fee) the Lenders, dated as of June 16, 2009, and August 7, 2009, respectively.
 
 “ Fiscal Year ” means the fiscal year of the Borrower and its Subsidiaries ending on December 31.
 
“ Foreign Lender ” means any Lender that is organized under the laws of a jurisdiction other than that in which the Borrower is resident for tax purposes.  For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.
 
“ GAAP ” means generally accepted accounting principles, as recognized by the American Institute of Certified Public Accountants and the Financial Accounting Standards Board, as in effect from time to time.
 
“ Governmental Approvals ” means all authorizations, consents, approvals, permits, licenses and exemptions of, registrations and filings with, and reports to, all Governmental Authorities.
 

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“ Governmental Authority ” means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).
 
“ Guaranty Obligation ” means, with respect to the Borrower and its Subsidiaries, without duplication, any obligation, contingent or otherwise, of any such Person pursuant to which such Person has directly or indirectly guaranteed any Indebtedness of any other Person and, without limiting the generality of the foregoing, any obligation, direct or indirect, contingent or otherwise of any such Person entered into for the purpose of assuring in any other manner the obligee of such Indebtedness of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part); provided , that the term Guaranty Obligation shall not include endorsements for collection or deposit in the ordinary course of business.
 
“ Hazardous Materials ” means any substances or materials (a) which are or become defined as hazardous wastes, hazardous substances, pollutants, contaminants, chemical substances or mixtures or toxic substances under any Environmental Law, (b) which are toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic, mutagenic or otherwise harmful to human health or the environment and are or become regulated by any Governmental Authority, (c) the presence of which require investigation or remediation under any Environmental Law or common law, (d) the discharge or emission or release of which requires a permit or license under any Environmental Law or other Governmental Approval, (e) which are deemed to constitute a nuisance or a trespass which pose a health or safety hazard to Persons or neighboring properties, (f) which consist of underground or aboveground storage tanks, whether empty, filled or partially filled with any substance, or (g) which contain, without limitation, asbestos, polychlorinated biphenyls, urea formaldehyde foam insulation, petroleum hydrocarbons, petroleum derived substances or waste, crude oil, nuclear fuel, natural gas or synthetic gas.
 
“ Hedging Agreement ” means any agreement with respect to any Interest Rate Contract, forward rate agreement, commodity swap, forward foreign exchange agreement, currency swap agreement, cross-currency rate swap agreement, currency option agreement or other agreement or arrangement designed to alter the risks of any Person arising from fluctuations in interest rates, currency values or commodity prices, all as amended, restated, supplemented or otherwise modified from time to time.
 
“ Indebtedness ” means, with respect to the Borrower and its Subsidiaries at any date and without duplication, the sum of the following calculated in accordance with GAAP:
 
(a)            all liabilities, obligations and indebtedness for borrowed money including obligations evidenced by bonds, debentures, notes or other similar instruments of any such Person;
 

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(b)            all obligations to pay the deferred purchase price of property or services of any such Person (including, without limitation, all obligations under non-competition, earn-out or similar agreements to the extent the foregoing are characterized as indebtedness in accordance with GAAP), except trade payables arising in the ordinary course of business;
 
(c)            the Attributable Indebtedness of such Person with respect to such Person’s obligations in respect of Capital Leases and Synthetic Leases (regardless of whether accounted for as indebtedness under GAAP);
 
(d)            all Indebtedness of any other Person secured by a Lien on any asset owned or being purchased by the Borrower or any of its Subsidiaries (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by the Borrower or any of its Subsidiaries or is limited in recourse;
 
(e)            all Guaranty Obligations of any such Person;
 
(f)            all obligations, contingent or otherwise, of any such Person relative to the face amount of letters of credit including, without limitation, and banker’s acceptances issued for the account of any such Person, other than such letters of credit, acceptances or similar extensions of credit that (i) do not support obligations for borrowed money and (ii) are not drawn upon (or, if drawn upon, are reimbursed within five (5) Business Days following payment thereof);
 
(g)            all obligations of any such Person to redeem, repurchase, exchange or defease, with cash, any Capital Stock of such Person; and
 
(h)            all Net Hedging Obligations.
 
For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly made non-recourse to such Person or such Person’s sole material asset is its interest in such partnership or joint venture.  For the avoidance of doubt, Indebtedness shall not include any obligations or liabilities arising under or in connection with any annuities, insurance policies, insurance contracts or any other similar agreements.
 
“ Indemnified Taxes ” means Taxes and Other Taxes other than Excluded Taxes.
 
“ Indemnitee ” has the meaning assigned thereto in Section 12.3(b) .
 
“ Interest Period ” has the meaning assigned thereto in Section 3.1(b) .
 

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“ Interest Rate Contract ” means any interest rate swap agreement, interest rate cap agreement, interest rate floor agreement, interest rate collar agreement, interest rate option or any other agreement regarding the hedging of interest rate risk exposure executed in connection with hedging the interest rate exposure of any Person and any confirming letter executed pursuant to such agreement, all as amended, restated, supplemented or otherwise modified from time to time.
 
 “ Lender ” means each Person executing this Agreement as a Lender set forth on the signature pages hereto and each Person that hereafter becomes a party to this Agreement as a Lender pursuant to Section 12.10 .
 
“ Lending Office ” means, with respect to any Lender, the office of such Lender maintaining such Lender’s Extensions of Credit.
 
“ LIBOR ” means the rate of interest per annum determined on the basis of the rate for deposits in Dollars for a period equal to the applicable Interest Period which appears on the Reuters Page LIBOR01, or its successor page, at approximately 11:00 a.m. (London time) two (2) Business Days prior to the first day of the applicable Interest Period (rounded to the nearest 1/100 th of 1%).  If, for any reason, such rate does not appear on Reuters Page LIBOR01, or its successor page, then “LIBOR” shall be determined by the Administrative Agent to be the arithmetic average of the rate per annum at which deposits in Dollars would be offered by first class banks in the London interbank market to the Administrative Agent at approximately 11:00 a.m. (London time) two (2) Business Days prior to the first day of the applicable Interest Period for a period equal to such Interest Period.  Each calculation by the Administrative Agent of LIBOR shall be conclusive and binding for all purposes, absent manifest error.
 
“ LIBOR Rate ” means with respect to any LIBOR Rate Loan, a rate per annum (rounded to the nearest 1/100th of 1%) determined by the Administrative Agent pursuant to the following formula:
 
LIBOR Rate =             
LIBOR
 
 
1.00-Eurodollar Reserve Percentage
 
 
“ LIBOR Rate Loan ” means any Loan bearing interest at a rate based upon the LIBOR Rate as provided in Section 3.1(a) .
 
“ Lien ” means, with respect to any asset, any mortgage, leasehold mortgage, lien, pledge, charge, security interest, hypothecation or encumbrance in the nature of security of any kind in respect of such asset.  For the purposes of this Agreement, a Person shall be deemed to own subject to a Lien any asset which it has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, Capital Lease or other title retention agreement relating to such asset.
 
“ Loan Documents ” means, collectively, this Agreement, each Revolving Credit Note, as may be amended, restated, supplemented or otherwise modified from time to time.
 

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“ Loans ” means the collective reference to the Revolving Credit Loans and “Loan” means any of such Loans.
 
“ Material Adverse Effect ”  means a material adverse effect on (a) the business, operations or financial condition of the Borrower and its Subsidiaries taken as a whole or (b) the ability of the Borrower to perform its obligations under the Loan Documents.
 
“ Material Subsidiary ” means any Subsidiary of the Borrower that, as of any date of determination, either (a) accounts for ten percent (10%) or more of the revenue of the Borrower on a Consolidated basis or (b) owns assets with a fair market value in excess of ten percent (10%) of the total assets of the Borrower on a Consolidated basis, in each case as determined by reference to the Borrower’s most recently completed annual audited financial statements and on a consistent basis with GAAP and Regulation S-X of the Securities Exchange Act of 1934, as amended.
 
“ Maturity Date ” means the earliest to occur of (a) the 364th day following the Closing Date, (b) the date of termination by the Borrower pursuant to Section 2.4 , or (c) the date of termination pursuant to Section 10.2(a) .
 
“ Merrill Lynch Investment Managers Transactions ” means (i) the transactions contemplated by the Merrill Lynch Merger Agreement and (ii) the related restructuring of the capitalization and alignment of the direct and indirect Subsidiaries of the Borrower.
 
“ Merrill Lynch Merger Agreement ” means the Transaction Agreement and Plan of Merger, dated as of February 15, 2006, by and among BlackRock, Inc. (formerly known as New Boise, Inc.), BlackRock Merger Sub., Inc. (formerly known as Boise Merger Sub, Inc.), BlackRock Holdco 2, Inc. (formerly known as BlackRock, Inc.) and Merrill Lynch & Co., Inc.
 
“ Moody’s ” means Moody’s Investors Service, Inc. and any successor thereto.
 
“ Multiemployer Plan ” means a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate is making, or is accruing an obligation to make, or has accrued an obligation to make contributions within the preceding six (6) years.
 
“ Net Hedging Obligations ” means, as of any date, in respect of any Hedging Agreement, the Termination Value of any such Hedging Agreement on such date.
 
“ Net Proceeds ” means the aggregate cash proceeds received by Borrower in respect of any Debt Transaction or Equity Transaction, net of the direct costs relating to such Debt Transaction or Equity Transaction, including, without limitation, legal, accounting and investment banking fees and expenses incurred directly as a result thereof.
 
“ Notice of Account Designation ” has the meaning assigned thereto in Section 2.2(c) .
 

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“ Notice of Borrowing ” has the meaning assigned thereto in Section 2.2(a) .
 
“ Notice of Conversion/Continuation ” has the meaning assigned thereto in Section 3.2 .
 
“ Notice of Prepayment ” has the meaning assigned thereto in Section 2.3(c) .
 
“ Obligations ” means, in each case, whether now in existence or hereafter arising: (a) the principal of and interest on (including interest accruing after the filing of any bankruptcy or similar petition) the Loans, and (b) all other fees and commissions (including attorneys’ fees), charges, indebtedness, loans, liabilities, financial accommodations, obligations, covenants and duties owing by the Borrower to the Lenders or the Administrative Agent, in each case under any Loan Document, with respect to any Loan of every kind, nature and description, direct or indirect, absolute or contingent, due or to become due, contractual or tortious, liquidated or unliquidated, and whether or not evidenced by any note.
 
“ OFAC ” means the Office of Foreign Assets Control of the U.S. Department of the Treasury.
 
“ Officer’s Compliance Certificate ” means a certificate of the chief financial officer, the head of business finance or the treasurer of the Borrower substantially in the form of Exhibit F .
 
“ Operating Lease ” means, as to any Person as determined in accordance with GAAP, any lease of property (whether real, personal or mixed) by such Person as lessee which is not a Capital Lease.
 
“ Other Taxes ” means all present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies arising from any payment made hereunder or under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Loan Document.
 
“ Participant ” has the meaning assigned thereto in Section 12.10(d) .
 
“ PATRIOT Act ” has the meaning assigned thereto in Section 4.2(h) .
 
“ PBGC ” means the Pension Benefit Guaranty Corporation or any successor agency.
 
“ Pension Plan ” means any Employee Benefit Plan, other than a Multiemployer Plan, which is subject to the provisions of Title IV of ERISA or Section 412 of the Code and which (a) is maintained for the employees of Borrower or any ERISA Affiliates or (b) has at any time within the preceding six (6) years been maintained for the employees of Borrower or any of its current or former ERISA Affiliates.
 

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“ Permitted Securitization ” shall mean any sales or other transfers from time to time by the Borrower or its Material Subsidiaries of all or any portion of its receivables in one or more securitization transactions.
 
“ Person ” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, governmental authority or other entity.
 
“ Prime Rate ” means, at any time, the rate of interest per annum publicly announced from time to time by the Administrative Agent as its prime rate.  Each change in the Prime Rate shall be effective as of the opening of business on the day such change in such prime rate occurs.  The parties hereto acknowledge that the rate announced publicly by Barclays Bank as its prime rate is an index or base rate and shall not necessarily be its lowest or best rate charged to its customers or other banks.
 
“ Qualifying Commercial Paper ” means commercial paper issued by the Borrower the proceeds of which were used by the Borrower solely to (i) fund the Acquisition in lieu of drawing Loans under this facility, (ii) refinance Revolving Credit Loans drawn at a Closing to fund the Acquisition, or (iii) refinance commercial paper the proceeds of which were used solely to refinance the commercial paper described in clauses (i) or (ii).
 
“ Register ” has the meaning assigned thereto in Section 12.10(c) .
 
“ Related Parties ” means, with respect to any Person, such Person’s Affiliates and the directors, officers, employees, agents and advisors of such Person and of such Person’s Affiliates.
 
“ Required Lenders ” means, at any date, any combination of Lenders who hold in aggregate more than fifty percent (50%) of the Aggregate Commitment or, if the Agreement has been terminated pursuant to Section 10.2 , any combination of Lenders holding more than fifty percent (50%) of the aggregate Extensions of Credit; provided that the Commitment of, and the portion of the Extensions of Credit, as applicable, held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders; and provided , further , that at and following Closing, for so long as more than fifty percent (50%) of the Aggregate Commitments are held by one Lender, “Required Lenders” means, at any date, any combination of Lenders who hold in aggregate more than sixty-six and two-thirds percent (66.66%) of the Aggregate Commitment or, if the Credit Facility has been terminated pursuant to Section 10.2 , any combination of Lenders holding more than sixty-six and two-thirds percent (66.66%) of the aggregate Extensions of Credit, except with respect to any amendments, waivers or consents relating to the conditions precedent set forth in Article IV, for which the applicable percentage shall be more than fifty percent (50%).
 
“ Responsible Officer ” means the chief executive officer, president, chief financial officer, chief accounting officer, head of business finance or treasurer of the Borrower or any other officer of the Borrower proposed by the Borrower and reasonably acceptable to the Administrative Agent.  Any document delivered hereunder that is signed by a Responsible
 

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Officer of the Borrower shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of the Borrower and such Responsible Officer shall be conclusively presumed to have acted on behalf of the Borrower.
 
“ Revolving Credit Facility ” means the revolving credit facility established pursuant to Article II .
 
“ Revolving Credit Lender ” means any Lender with a Commitment to make Revolving Credit Loans hereunder.
 
“ Revolving Credit Loans ” means any revolving loan made to the Borrower pursuant to Section 2.1 , and all such revolving loans collectively as the context requires.
 
“ Revolving Credit Note ” means a promissory note made by the Borrower in favor of a Lender evidencing the Revolving Credit Loans made by such Lender, substantially in the form of Exhibit A-1 , and any amendments, supplements and modifications thereto, any substitutes therefor, and any replacements, restatements, renewals or extension thereof, in whole or in part.
 
“ S&P ” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc. and any successor thereto.
 
“ Sanctioned Entity ” means (i) a country or a government of a country, (ii) an agency of the government of a country, (iii) an organization directly or indirectly controlled by a country or its government, or (iv) a person or entity resident in or determined to be resident in a country that is subject to a country sanctions program administered and enforced by OFAC described or referenced at http://www.ustreas.gov/offices/enforcement/ofac/sanctions/index.html , or as otherwise published from time to time as such program may be applicable to such agency, organization or person.
 
“ Sanctioned Person ” means a person named on the list of Specially Designated Nationals or Blocked Persons maintained by OFAC available at or through http://www.ustreas.gov/offices/enforcement/ofac/.html , or as otherwise published from time to time.
 
“ SEC ” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
 
“ SSR Acquisition ” means the transactions contemplated by the Stock Purchase Agreement, dated as of August 25, 2004, among MetLife, Inc., Metropolitan Life Insurance Company, SSRM Holdings, Inc., BlackRock, Inc. and BlackRock Financial Management, Inc.
 
“ Solvent ” means with respect to any Person, that as of the date of determination, both (i) (a) the sum of such Person’s debt (including contingent liabilities) does not exceed the present fair saleable value of such Person’s present assets; (b) such Person’s capital is not unreasonably small in relation to its business as contemplated on the Closing Date or with
 

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respect to any transaction then contemplated to be undertaken after the Closing Date; and (c) such Person has not incurred and does not intend to incur, or believe (nor should it reasonably believe) that it shall incur, debts beyond its ability to pay such debts at maturity; and (ii) such Person is “solvent” within the meaning given that term and similar terms under the Bankruptcy Code and applicable laws relating to fraudulent transfers and conveyances.  For purposes of this definition (including, without limitation, clause (ii)), (A) the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual under Statement of Financial Accounting Standard No. 5) as determined by such Person in good faith; and (B) the “present fair saleable value…of assets”, “property, at fair valuation” and words of similar import shall mean the value, as determined by such Person in good faith, of its business as a going concern (it being agreed that, for purposes of making any such determination, such Person may value the portion of its business consisting of Transferred Equity Interests at the price payable pursuant to the Stock Purchase Agreement).
 
“ Stock Purchase Agreement ” means the Stock Purchase Agreement, dated June 16, 2009, by and among Barclays Bank, Borrower and the other parties thereto.
 
“ Subsidiary ” means as to any Person, any corporation, partnership, limited liability company or other entity of which more than fifty percent (50%) of the outstanding Capital Stock having ordinary voting power to elect a majority of the board of directors or other managers of such corporation, partnership, limited liability company or other entity is at the time owned by or the management is otherwise controlled, directly or indirectly, by such Person (irrespective of whether, at the time, Capital Stock of any other class or classes of such corporation, partnership, limited liability company or other entity shall have or might have voting power by reason of the happening of any contingency); provided, however, that a Subsidiary shall not include any Excluded Subsidiary.  Unless otherwise qualified, references to “Subsidiary” or “Subsidiaries” herein shall refer to those of the Borrower.
 
“ Synthetic Lease ” means any synthetic lease, tax retention operating lease, off-balance sheet loan or similar off-balance sheet financing product where such transaction is considered borrowed money indebtedness for tax purposes but is classified as an Operating Lease in accordance with GAAP.
 
“ Taxes ” means all present or future taxes, levies, imposts, duties, deductions, withholdings, assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
 
“ Termination Event ” means except for any such event or condition that could not reasonably be expected to have a Material Adverse Effect: (a) a “Reportable Event” described in Section 4043 of ERISA for which the notice requirement has not been waived by the PBGC, or (b) the withdrawal of Borrower or any ERISA Affiliate from a Pension Plan during a plan year in which it was a “substantial employer” as defined in Section 4001(a)(2) of ERISA, or (c) the termination of a Pension Plan, the filing of a notice of intent to terminate a Pension Plan or the
 

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treatment of a Pension Plan amendment as a termination, under Section 4041 of ERISA, if the plan assets are not sufficient to pay all plan liabilities, or (d) the institution of proceedings to terminate, or the appointment of a trustee with respect to, any Pension Plan by the PBGC, or (e) any other event or condition which would constitute grounds under Section 4042(a) of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan, or (f) the imposition of a Lien pursuant to Section 412 of the Code or Section 302 of ERISA, or (g) the partial or complete withdrawal of Borrower or any ERISA Affiliate from a Multiemployer Plan if withdrawal liability is asserted by such plan, or (h) any event or condition which results in the reorganization or insolvency of a Multiemployer Plan under Sections 4241 or 4245 of ERISA, or (i) any event or condition which results in the termination of a Multiemployer Plan under Section 4041A of ERISA or the institution by PBGC of proceedings to terminate a Multiemployer Plan under Section 4042 of ERISA.
 
“ Termination Value ” means, in respect of any one or more Hedging Agreements, after taking into account the effect of any legally enforceable netting agreement relating to such Hedging Agreements, (a) for any date on or after the date such Hedging Agreements have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Hedging Agreements, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Hedging Agreements (which may include a Lender or any Affiliate of a Lender).
 
“ Transaction Announcement Date ” means June 11, 2009, which is the date on which with Acquisition was announced.
 
“ Transferred Entities ” has the meaning granted in the Stock Purchase Agreement.
 
“ Transferred Equity Interests ” has the meaning granted in the Stock Purchase Agreement.
 
“ Unrestricted Cash ” means all cash of the Borrower and its Subsidiaries that are Domestic Subsidiaries (i) that is not subject to a Lien (other than banker’s or similar liens) or (ii) the use of such cash by the Borrower or any such Subsidiary is not restricted by Applicable Law.
 
Section 1.2          Other Definitions and Provisions .  With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:  (a) the definitions of terms herein shall apply equally to the singular and plural forms of the terms defined, (b) w henever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms, (c) the words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”, (d) t he word “will” shall be construed to have the same meaning and effect as the word “shall”, (e) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (f) any reference herein to any Person shall be
 

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construed to include such Person’s permitted successors and assigns, (g) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (h) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement, (i) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights, (j) the term “documents” includes any and all instruments, documents, agreements, certificates, notices, reports, financial statements and other writings, however evidenced, whether in physical or electronic form, (k) in the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including;” the words “to” and “until” each mean “to but excluding;” and the word “through” means “to and including”, and (l) section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.
 
Section 1.3          Accounting Terms .   All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP, except as otherwise specifically prescribed herein.
 
Section 1.4          Rounding .  Any financial ratios required to be maintained by the Borrower pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).
 
Section 1.5          References to Agreement and Laws .  Unless otherwise expressly provided herein, (a) references to formation documents, governing documents, agreements (including the Loan Documents) and other contractual instruments shall be deemed to include all subsequent amendments, restatements, extensions, supplements and other modifications thereto, but only to the extent that such amendments, restatements, extensions, supplements and other modifications are not prohibited by any Loan Document; and (b) references to any Applicable Law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Applicable Law.
 
Section 1.6          Times of Day .  Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).
 
ARTICLE II
 
REVOLVING CREDIT FACILITY
 
Section 2.1          Revolving Credit Loans .  Subject to the terms and conditions of this Agreement, each Revolving Credit Lender severally agrees to make Revolving Credit Loans in Dollars to the Borrower from time to time during the Availability Period as requested by the
 

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Borrower in accordance with the terms of Section 2.2 ; provided , that, (a) the aggregate principal amount of all outstanding Revolving Credit Loans (after giving effect to any amount requested and the use thereof) shall not exceed an amount equal to the Aggregate Commitment and (b) the principal amount of outstanding Revolving Credit Loans from any Revolving Credit Lender to the Borrower shall not at any time exceed such Revolving Credit Lender’s Commitment.  Each Revolving Credit Loan by a Revolving Credit Lender shall be in a principal amount equal to such Revolving Credit Lender’s Commitment Percentage of the aggregate principal amount of Revolving Credit Loans requested on such occasion.  Subject to the terms and conditions hereof, the Borrower may borrow, repay and reborrow Revolving Credit Loans hereunder until the Maturity Date; provided that Borrower may only reborrow Revolving Credit Loans to the extent the proceeds of the borrowings are used solely to refinance Qualifying Commercial Paper.
 
Section 2.2           Procedure for Advances of Revolving Credit Loans .
 
(a)             Requests for Borrowing .  The Borrower shall give the Administrative Agent irrevocable prior written notice substantially in the form of Exhibit B (a “ Notice of Borrowing ”) or telephonic notice (followed by prompt delivery of such Notice of Borrowing) not later than 11:00 a.m. New York time (i) on the same Business Day as each Base Rate Loan including such Base Rate Loans borrowed to refinance Qualifying Commercial Paper and (ii) on or prior to the third (3 rd ) Business Day before each LIBOR Rate Loan, specifying (A) the date of such borrowing, which shall be a Business Day, (B) whether such Loan shall be a LIBOR Rate Loan or a Base Rate Loan, (C) the amount of such borrowing, which shall be in an amount equal to the amount of the Aggregate Commitment, then available to the Borrower, or if less, in an aggregate principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof and (D) in the case of a LIBOR Rate Loan, the duration of the Interest Period applicable thereto.  A Notice of Borrowing received after the time set forth above shall be deemed received on the next Business Day.  The Administrative Agent shall promptly notify the applicable Lenders of each Notice of Borrowing.
 
(b)             Disbursement of Revolving Credit Loans .  Not later than 1:00 p.m. (New York time) on the proposed borrowing date for any Revolving Credit Loan, each Revolving Credit Lender will make available to the Administrative Agent, for the account of the Borrower, at the Administrative Agent’s Office in funds in Dollars immediately available to the Administrative Agent, such Revolving Credit Lender’s Commitment Percentage of the Revolving Credit Loans to be made on such borrowing date.
 
(c)             Account Designation .  The Borrower hereby irrevocably authorizes the Administrative Agent to disburse the proceeds of each borrowing requested pursuant to this Section in immediately available funds by crediting or wiring such proceeds to the deposit account of the Borrower identified in the most recent notice substantially in the form of Exhibit C (a “ Notice of Account Designation ”) delivered by the Borrower to the Administrative Agent or as may be otherwise agreed upon by the Borrower and the Administrative Agent from time to time.  Subject to Section 3.7 hereof, the
 

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Administrative Agent shall not be obligated to disburse the portion of the proceeds of any Revolving Credit Loan requested pursuant to this Section to the extent that any Revolving Credit Lender has not made available to the Administrative Agent its Commitment Percentage of such Revolving Credit Loan.
 
Section 2.3          Repayment and Prepayment of Revolving Credit .
 
(a)             Repayment on Maturity Date .  The Borrower hereby agrees to repay the outstanding principal amount of all Revolving Credit Loans in full in Dollars on the Maturity Date, together with all accrued but unpaid interest thereon.
 
(b)             Mandatory Prepayments .
 
   (i)             Aggregate Commitment .  If at any time the outstanding principal amount of all Revolving Credit Loans exceeds the Aggregate Commitment, then, in each such case, the Borrower shall within four (4) Business Days of receipt of a notice of such excess from the Administrative Agent (I) first , if (and to the extent) necessary to eliminate such excess, repay outstanding Revolving Credit Loans which are Base Rate Loans by the amount of such excess (and/or reduce any pending request for such Loans on such day by the amount of such excess) and (II) second , if (and to the extent) necessary to eliminate such excess, repay LIBOR Rate Loans by the amount of such excess (and/or reduce any pending requests for a borrowing or conversion of such Loans submitted in respect of such Loans on such day by the amount of such excess).
 
   (ii)             Financing Transactions .  Within three (3) Business Days after the Borrower receives any Net Proceeds from any Debt Transaction, or any Excess Equity Proceeds (but in each case only to the extent received on or after the date hereof), (x) Borrower shall prepay any amounts currently outstanding under the Revolving Credit Loans with such Net Proceeds or such Excess Equity Proceeds, as the case may be; and (y) (except in the case of the receipt of proceeds of Qualifying Commercial Paper) the Aggregate Commitment shall be permanently reduced in an amount equal to the Net Proceeds of any such Debt Transaction or Excess Equity Proceeds.
 
   (iii)             Compliance and Payments .  The Borrower’s compliance with this Section 2.3(b) shall be tested from time to time by the Administrative Agent at its sole discretion.   Each such repayment pursuant to this Section 2.3(b) shall be accompanied by any amount required to be paid pursuant to Section 3.9 hereof.
 
(c)             Optional Prepayments .  The Borrower may at any time and from time to time prepay Revolving Credit Loans, in whole or in part, with irrevocable prior written notice to the Administrative Agent substantially in the form of Exhibit D (a “ Notice of Prepayment ”) or telephonic notice (followed by prompt delivery of such Notice of Prepayment) given not later than 11:00 a.m. New York time (i) on the same Business
 

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Day as each repayment of a Base Rate Loan and (ii) on the third (3 rd ) Business Day before each repayment of a LIBOR Rate Loan, specifying (A) the date of prepayment, (B) the amount of prepayment, and (C) whether the prepayment is of LIBOR Rate Loans or Base Rate Loans.  Upon receipt of such notice, the Administrative Agent shall promptly notify each applicable Lender.  If any such notice is given, the amount specified in such notice shall be due and payable on the date set forth in such notice.  Partial prepayments shall be in an aggregate amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof.  A Notice of Prepayment received after the applicable time stated above shall be deemed received on the next Business Day.  Each such prepayment shall be accompanied by any amount required to be paid pursuant to Section 3.9 hereof.
 
(d)             Limitation on Prepayment of LIBOR Rate Loans .  The Borrower may not prepay any LIBOR Rate Loan on any day other than on the last day of the Interest Period applicable thereto unless such prepayment is accompanied by any amount required to be paid pursuant to Section 3.9 hereof.
 
(e)             Hedging Agreements .  No repayment or prepayment pursuant to this Section 2.3 shall affect any of the Borrower’s obligations under any Hedging Agreement.
 
Section 2.4           Permanent Reduction of the Commitment .
 
(a)             Voluntary Reduction .  The Borrower shall have the right at any time and from time to time, upon at least three (3) Business Days prior written notice to the Administrative Agent, to, without premium or penalty, permanently (i) terminate the entire Aggregate Commitment at any time or (ii) reduce portions of the Aggregate Commitment, from time to time, in an aggregate principal amount not less than $5,000,000 or any whole multiple of $1,000,000 in excess thereof.  Any reduction of the Aggregate Commitment shall be applied to the Commitment of each Lender according to its Commitment Percentage.  All commitment fees accrued until the effective date of any termination of the Aggregate Commitment shall be paid on the effective date of such termination.
 
(b)             Corresponding Payment .  Each permanent reduction permitted pursuant to this Section shall be accompanied by a payment of principal sufficient to reduce the aggregate amount of all outstanding Revolving Credit Loans so such Loans do not exceed the Aggregate Commitment as so reduced.  Any reduction of the Aggregate Commitment to zero shall be accompanied by payment of all outstanding Revolving Credit Loans and shall result in the termination of the Aggregate Commitment and the Revolving Credit Facility.  If the reduction of the Aggregate Commitment requires the repayment of any LIBOR Rate Loan, such repayment shall be accompanied by any amount required to be paid pursuant to Section 3.9(c) hereof.
 
 
Section 2.5            Termination of Credit Facility .  The Credit Facility shall terminate on the Maturity Date.
 

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ARTICLE III
 
GENERAL LOAN PROVISIONS
 
Section 3.1           Interest .
 
(a)             Interest Rate Options .  Subject to the provisions of this Section, at the election of the Borrower, Revolving Credit Loans shall bear interest at (A) the Base Rate plus the Applicable Percentage or (B) the LIBOR Rate plus the Applicable Percentage ( provided that the LIBOR Rate shall not be available until three (3) Business Days after the Closing Date unless the Borrower has delivered to the Administrative Agent a letter in form and substance satisfactory to the Administrative Agent indemnifying the Lenders against any loss or expense which may arise or be attributable to such Lender’s obtaining, liquidating or employing deposits or other funds acquired to effect, fund or maintain any Loan due to any failure of the Borrower to borrow on the date specified therefore in the initial Notice of Borrowing ).  The Borrower shall select the rate of interest and Interest Period, if any, applicable to any Revolving Credit Loan at the time a Notice of Borrowing is given or at the time a Notice of Conversion/Continuation is given pursuant to Section 3.2 .  Any Revolving Credit Loan or any portion thereof as to which the Borrower has not duly specified an interest rate as provided herein shall be deemed a Base Rate Loan.
 
(b)             Interest Periods .  In connection with each LIBOR Rate Loan, the Borrower, by giving notice at the times described in Section 2.2 or 3.2 , as applicable, shall elect an interest period (each, an “ Interest Period ”) to be applicable to such Loan, which Interest Period shall be a period of one (1) week, one (1) month, two (2) months, three (3) months or six (6) months, or, if agreed to by all Lenders, a period of less than thirty (30) days but more than one (1) week, or a period of nine (9) or twelve (12) months; provided that:
 
   (i)            the Interest Period shall commence on the date of advance of or conversion to any LIBOR Rate Loan and, in the case of immediately successive Interest Periods, each successive Interest Period shall commence on the date on which the immediately preceding Interest Period expires;
 
   (ii)            if any Interest Period would otherwise expire on a day that is not a Business Day, such Interest Period shall expire on the next succeeding Business Day; provided , that if any Interest Period with respect to a LIBOR Rate Loan would otherwise expire on a day that is not a Business Day but is a day of the month after which no further Business Day occurs in such month, such Interest Period shall expire on the immediately preceding Business Day;
 
   (iii)           any Interest Period with respect to a LIBOR Rate Loan that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest
 

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Period) shall end on the last Business Day of the relevant calendar month at the end of such Interest Period; and
 
   (iv)            there shall be no more than ten (10) Interest Periods in effect at any time.
 
(c)             Default Rate .  Subject to Section 10.3 , as directed by the Required Lenders, upon the occurrence and during the continuance of an Event of Default under Section 10.1(a) or (b) , (i) the Borrower shall no longer have the option to request LIBOR Rate Loans, (ii) the principal amount of all past due LIBOR Rate Loans shall bear interest at a rate per annum two percent (2%) in excess of the rate then applicable to LIBOR Rate Loans until the end of the applicable Interest Period and thereafter at a rate equal to two percent (2%) in excess of the rate then applicable to Base Rate Loans, and (iii) all past due Base Rate Loans and other Obligations arising hereunder or under any other Loan Document shall bear interest at a rate per annum equal to two percent (2%) in excess of the rate then applicable to Base Rate Loans or such other Obligations arising hereunder or under any other Loan Document.  Interest shall continue to accrue on the Obligations after the filing by or against the Borrower of any petition seeking any relief in bankruptcy or under any act or law pertaining to insolvency or debtor relief, whether state, federal, or foreign.
 
(d)             Interest Payment and Computation .  Interest on each Base Rate Loan shall be due and payable in arrears on the last Business Day of each calendar quarter commencing March 31, 2010; and interest on each LIBOR Rate Loan shall be due and payable on the last day of each Interest Period applicable thereto, and if such Interest Period extends over three (3) months, at the end of each three (3) month interval during such Interest Period.  Interest on LIBOR Rate Loans, Base Rate Loans based on the Federal Funds Rate, and all fees payable hereunder shall be computed on the basis of a 360-day year and assessed for the actual number of days elapsed and interest on Base Rate Loans based on the Prime Rate shall be computed on the basis of a 365/366-day year and assessed for the actual number of days elapsed.
 
(e)             Maximum Rate .  In no contingency or event whatsoever shall the aggregate of all amounts deemed interest under this Agreement charged or collected pursuant to the terms of this Agreement exceed the highest rate permissible under any Applicable Law which a court of competent jurisdiction shall, in a final determination, deem applicable hereto.  In the event that such a court determines that the Lenders have charged or received interest hereunder or under any other Loan Document in excess of the highest applicable rate, the rate in effect hereunder shall automatically be reduced to the maximum rate permitted by Applicable Law and the Lenders shall at the Administrative Agent’s option (i) promptly refund to the Borrower any interest received by the Lenders in excess of the maximum lawful rate or (ii) apply such excess to the principal balance of the Obligations on a pro rata basis.  It is the intent hereof that the Borrower not pay or contract to pay, and that neither the Administrative Agent nor any
 

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Lender receive or contract to receive, directly or indirectly in any manner whatsoever, interest in excess of that which may be paid by the Borrower under Applicable Law.
 
Section 3.2          Notice and Manner of Conversion or Continuation of Revolving Credit Loans .  Provided that no Event of Default has occurred and is then continuing, the Borrower shall have the option to (a) convert at any time following the third Business Day after the Closing Date all or any portion of any outstanding Base Rate Loans in a principal amount equal to $5,000,000 or any whole multiple of $1,000,000 in excess thereof into one or more LIBOR Rate Loans and (b) upon the expiration of any Interest Period convert all or any part of its outstanding LIBOR Rate Loans in a principal amount equal to $5,000,000 or a whole multiple of $1,000,000 in excess thereof into Base Rate Loans.  Whenever the Borrower desires to convert or continue Revolving Credit Loans as provided above, the Borrower shall give the Administrative Agent irrevocable prior written notice in the form attached as Exhibit E (a “ Notice of Conversion/Continuation ”) or telephonic notice (followed by prompt delivery of such Notice of Conversion/Continuation) not later than 11:00 a.m. (New York time) three (3) Business Days before the day on which a proposed conversion of such Loan is to be effective specifying (A) the Revolving Credit Loans to be converted and, in the case of any LIBOR Rate Loan to be converted or continued, the last day of the Interest Period therefor, (B) the effective date of such conversion (which shall be a Business Day), (C) the principal amount of such Revolving Credit Loans to be converted, and (D) the Interest Period to be applicable to such converted LIBOR Rate Loan.  The Administrative Agent shall promptly notify the Revolving Credit Lenders of such Notice of Conversion/Continuation.
 
Section 3.3           Fees .
 
(a)             Commitment Fee .  Commencing on the Closing Date, the Borrower shall pay to the Administrative Agent, for the account of the Revolving Credit Lenders, a non-refundable commitment fee at a rate per annum equal to the Applicable Percentage on the average daily unused portion of the Commitments.  The commitment fee shall be payable in arrears on the last Business Day of each calendar quarter during the term of this Agreement commencing March 31, 2010, and on the Maturity Date.  Such commitment fee shall be distributed by the Administrative Agent to the Revolving Credit Lenders pro rata in accordance with the Revolving Credit Lenders’ respective Commitment Percentages.
 
(b)             Other Fees .  The Borrower agrees to pay any fees set forth in the Fee Letters.
 
Section 3.4           Manner of Payment .
 
(a)             Revolving Credit Loans .  Each payment by the Borrower on account of the principal of or interest on the Loans or of any fee, commission or other amounts payable to the applicable Lenders under this Agreement shall be made in Dollars not later than 1:00 p.m. (New York time) on the date specified for payment under this Agreement to the Administrative Agent at the Administrative Agent’s Office for the account of the
 

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applicable Lenders (other than as set forth below) pro rata in accordance with their respective Commitment Percentages (except as specified below), in Dollars, in immediately available funds and shall be made without any setoff, counterclaim or deduction whatsoever.  Any payment received after such time but before 2:00 p.m. (New York time) on such day shall be deemed a payment on such date for the purposes of Section 10.1 , but for all other purposes shall be deemed to have been made on the next succeeding Business Day.  Any payment received after 2:00 p.m. (New York time) shall be deemed to have been made on the next succeeding Business Day for all purposes.
 
(b)             Pro Rata Treatment .  Upon receipt by the Administrative Agent of each such payment, the Administrative Agent shall distribute to each Lender at its address for notices set forth herein its pro rata share of such payment in accordance with such Lender’s Commitment Percentage, (except as specified below) and shall wire advice of the amount of such credit to each such Lender.  Each payment to the Administrative Agent of the upfront fees and commitment fees or expenses shall be made for the account of the Administrative Agent and any amount payable to any Lender under Section 3.9 , 3.10 , 3.11 or 12.3 shall be paid to the Administrative Agent for the account of the applicable Lender.  Subject to Section 3.1(b)(ii) if any payment under this Agreement shall be specified to be made upon a day which is not a Business Day, it shall be made on the next succeeding day which is a Business Day and such extension of time shall in such case be included in computing any interest if payable along with such payment.
 
Section 3.5           Evidence of Indebtedness .
 
(a)             Extensions of Credit .  The Extensions of Credit made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by the Administrative Agent in the ordinary course of business.  The accounts or records maintained by the Administrative Agent and each Lender shall be conclusive absent manifest error of the amount of the Extensions of Credit made by the Lenders to the Borrower and the interest and payments thereon.  Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations.  In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error.  Upon the request of any Lender made through the Administrative Agent, the Borrower shall execute and deliver to such Lender (through the Administrative Agent) a Revolving Credit Note, which shall evidence such Lender’s Revolving Credit Loans, in addition to such accounts or records.  Each Lender may attach schedules to its Notes and endorse thereon the date, amount and maturity of its Loans and payments with respect thereto.
 
Section 3.6           Adjustments .  If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or other obligations hereunder resulting in such Lender’s receiving payment of a proportion of the aggregate amount of its Loans and accrued interest thereon or other such
 

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obligations (other than pursuant to Section 3.9 , 3.10 , 3.11 or 12.3 hereof) greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Loans and such other obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them; provided that
 
(a)            if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and
 
(b)            the provisions of this paragraph shall not be construed to apply to (x) any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans to any assignee or participant, other than to the Borrower or any Subsidiary thereof (as to which the provisions of this paragraph shall apply).
 
The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under Applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
 
Section 3.7           Nature of Obligations of Lenders Regarding Extensions of Credit; Assumption by the Administrative Agent .  The obligations of the Lenders under this Agreement to make the Loans are several and are not joint or joint and several.  Unless the Administrative Agent shall have received notice from a Lender prior to a proposed borrowing date or as of a proposed borrowing time, as applicable, that such Lender will not make available to the Administrative Agent such Lender’s ratable portion of the amount to be borrowed on such date or time (which notice shall not release such Lender of its obligations hereunder), the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on such proposed borrowing date or as of such proposed borrowing time in accordance with Section 2.2(b) , and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower on such date or time a corresponding amount.  If such amount is made available to the Administrative Agent on a date or time after such borrowing date or time, as applicable, such Lender shall pay to the Administrative Agent on demand an amount, until paid, equal to with respect to any Loan, the product of (i) the amount not made available by such Lender in accordance with the terms hereof, times (ii) the daily average Federal Funds Rate during such period as determined by the Administrative Agent, times (iii) a fraction the numerator of which is the number of days that elapse from and including such borrowing date or time to the date on which such amount not made available by such Lender in accordance with the terms hereof shall have become immediately available to the Administrative Agent and the denominator of which is 360.  A certificate of the Administrative
 

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Agent with respect to any amounts owing under this Section shall be conclusive, absent manifest error.  If such Lender’s Commitment Percentage of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after such borrowing date or time, the Administrative Agent shall be entitled to recover such amount made available by the Administrative Agent with interest thereon at the rate per annum applicable to Base Rate Loans hereunder, on demand, from the Borrower.  The failure of any Lender to make available its Commitment Percentage of any Loan requested by the Borrower shall not relieve it or any other Lender of its obligation, if any, hereunder to make its Commitment Percentage of such Loan available on the borrowing date or as of such borrowing time, as applicable, but no Lender shall be responsible for the failure of any other Lender to make its Commitment Percentage of such Loan available on the borrowing date or as of such borrowing time, as applicable.  Notwithstanding anything set forth herein to the contrary, any Lender that is a Defaulting Lender shall not (a) have any voting or consent rights under or with respect to any Loan Document, except that the Commitment of such Defaulting Lender may not be increased or decreased without the consent of such Defaulting Lender, or (b) constitute a “Lender” (or be included in the calculation of Required Lenders hereunder) for any voting or consent rights under or with respect to any Loan Document.
 
Section 3.8           Changed Circumstances .
 
(a)             Circumstances Affecting LIBOR Rate .  If with respect to any Interest Period the Administrative Agent or any Lender (after consultation with the Administrative Agent) shall determine that by reason of circumstances affecting the foreign exchange and interbank markets generally, deposits in eurodollars in the applicable amounts are not being quoted via the Reuters Page LIBOR01, or its successor page, or offered to the Administrative Agent or such Lender for such Interest Period, then the Administrative Agent shall forthwith give notice thereof to the Borrower.  Thereafter, until the Administrative Agent notifies the Borrower that such circumstances no longer exist, the obligation of the Lenders to make LIBOR Rate Loans, and the right of the Borrower to convert any Loan to a LIBOR Rate Loan, shall be suspended, and the Borrower shall repay in full (or cause to be repaid in full) the then outstanding principal amount of each such LIBOR Rate Loan, together with accrued interest thereon, (A) on the last day of the then current Interest Period, to such LIBOR Rate Loan, or (B) with respect to any LIBOR Rate Loans, convert the then outstanding principal amount of each such LIBOR Rate Loan to a Base Rate Loan as of the last day of such Interest Period.
 
(b)             Laws Affecting LIBOR Rate .  If, after the date hereof, the introduction of, or any change in, any Applicable Law or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any of the Lenders (or any of their respective Lending Offices) with any request or directive (whether or not having the force of law) of any such Governmental Authority, central bank or comparable agency, shall make it unlawful or impossible for any of the Lenders (or any of their respective Lending Offices) to honor its obligations hereunder to make or maintain any LIBOR Rate Loan, such Lender shall promptly give notice thereof to the
 

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Administrative Agent and the Administrative Agent shall promptly give notice to the Borrower and the other Lenders.  Thereafter, until the Administrative Agent notifies the Borrower that such circumstances no longer exist, (i) the obligations of the Lenders to make LIBOR Rate Loans, and the right of the Borrower to convert any Revolving Credit Loan or continue any Revolving Credit Loan as a LIBOR Rate Loan, shall be suspended and thereafter the Borrower may select Base Rate Loans, and (ii) if any of the Lenders may not lawfully continue to maintain a LIBOR Rate Loan, the applicable LIBOR Rate Loan shall immediately be converted to a Base Rate Loan for the remainder of such Interest Period; provided that if the Borrower elects to make such conversion, the Borrower shall pay to the Administrative Agent and the Lenders any and all costs, fees and other expenses incurred by the Administrative Agent and the Lenders in effecting such conversion.
 
Section 3.9           Indemnity .  The Borrower hereby indemnifies each of the Lenders against any loss or expense (including, without limitation, any foreign exchange costs, and excluding loss of profits or anticipated profits) which may arise or be attributable to each Lender’s obtaining, liquidating or employing deposits or other funds acquired to effect, fund or maintain any Loan (a) as a consequence of any failure by the Borrower to make any payment when due of any amount due hereunder in connection with a LIBOR Rate Loan (b) due to any failure of the Borrower to borrow, continue or convert on a date specified therefor in a Notice of Borrowing or Notice of Conversion/Continuation or (c) due to any payment, prepayment or conversion of any LIBOR Rate Loan on a date other than the last day of the Interest Period therefor.  The amount of such loss or expense shall be determined, in the applicable Lender’s sole discretion, based upon the assumption that such Lender funded its Commitment Percentage of the LIBOR Rate Loans in the London interbank market and using any reasonable attribution or averaging methods which such Lender deems appropriate and practical.  A certificate of such Lender setting forth the basis for determining such amount or amounts necessary to compensate such Lender shall be forwarded to the Borrower through the Administrative Agent and shall be conclusively presumed to be correct save for manifest error.
 
Section 3.10         Increased Costs .
 
(a)             Increased Costs Generally .  If any Change in Law shall:
 
   (i)            impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or advances, loans or other credit extended or participated in by, any Lender (except any reserve requirement reflected in the LIBOR Rate);
 
   (ii)            subject any Lender to any tax of any kind whatsoever with respect to this Agreement or any LIBOR Rate Loan made by it, or change the basis of taxation of payments to such Lender, in respect thereof (except for Indemnified Taxes or Other Taxes covered by Section 3.11 and the imposition of, or any change in the rate of any Excluded Tax payable by such Lender); or
 

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   (iii)            impose on any Lender or the London interbank market any other condition, cost or expense affecting this Agreement or LIBOR Rate Loans made by such Lender;
 
and the result of any of the foregoing shall be to increase the cost to such Lender of making, converting into or maintaining any LIBOR Rate Loan (or of maintaining its obligation to make any such Loan), or to reduce the amount of any sum received or receivable by such Lender (whether of principal, interest or any other amount) then, upon written request of such Lender, the Borrower shall promptly pay to any such Lender such additional amount or amounts as will compensate such Lender for such additional costs incurred or reduction suffered.
 
(b)             Capital Requirements .  If any Lender determines that any Change in Law affecting such Lender or any lending office of such Lender or such Lender’s holding company, if any, regarding capital requirements has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender, or the Loans made by such Lender, to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s and the policies of such Lender’s holding company with respect to capital adequacy), then from time to time upon written request of such Lender, the Borrower shall promptly pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered.
 
(c)             Certificates for Reimbursement .  A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as the case may be, as specified in paragraph (a) or (b) of this Section and delivered to the Borrower shall be conclusive absent manifest error.  The Borrower shall pay such Lender the amount shown as due on any such certificate within thirty (30) days after receipt thereof.
 
(d)             Delay in Requests .  Failure or delay on the part of any Lender to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender pursuant to this Section for any increased costs incurred or reductions suffered more than nine (9) months prior to the date that such Lender  notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof).
 

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Section 3.11         Taxes .
 
(a)             Payments Free of Taxes .  Any and all payments by or on account of any obligation of the Borrower hereunder or under any other Loan Document shall be made free and clear of and without reduction or withholding for any Indemnified Taxes; provided that if the Borrower shall be required by Applicable Law to deduct any Indemnified Taxes from such payments, then (i) the sum payable shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section) the Administrative Agent or Lender, as the case may be, receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall timely pay the full amount deducted to the relevant Governmental Authority in accordance with Applicable Law.
 
(b)             Payment of Other Taxes by the Borrower . Without limiting the provisions of paragraph (a) above, the Borrower shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with Applicable Law.
 
(c)             Indemnification by the Borrower . The Borrower shall indemnify the Administrative Agent and each Lender, within ten (10) days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) paid by the Administrative Agent or such Lender, as the case may be, and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority; provided that if the Borrower reasonably believes that such Indemnified Taxes were not correctly or legally asserted, the Administrative Agent or such Lender, as the case may be, will use reasonable efforts to cooperate with the Borrower (at the Borrower’s expense) to obtain a refund of such Indemnified Taxes (in cash or as a credit against another existing tax liability), the benefit of which refund shall be returned to the Borrower to the extent provided in Section 3.11(f) .  A certificate as to the amount of such payment or liability (along with a copy of any applicable documents from the Internal Revenue Service or other Governmental Authority that asserts such claim as to Indemnified Taxes) delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
 
(d)             Evidence of Payments . As soon as practicable after any payment of Indemnified Taxes by the Borrower to a Governmental Authority, the Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
 

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(e)             Status of Lenders . Each Foreign Lender that is entitled to an exemption from or reduction of withholding tax under the law of the jurisdiction in which the Borrower is resident for tax purposes, or any treaty to which such jurisdiction is a party, with respect to payments hereunder or under any other Loan Document shall deliver to the Borrower (with a copy to the Administrative Agent), at the time or times prescribed by Applicable Law or reasonably requested in writing by the Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by Applicable Law as will permit such payments under this Agreement to be made without withholding or at a reduced rate of withholding to the extent the relevant law or treaty provides.  In addition, any Lender, if requested in writing by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested in writing by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements.  Without limiting the generality of the foregoing, each Foreign Lender shall deliver to the Borrower and the Administrative Agent (in such number of copies as shall be reasonably requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the request of the Borrower or the Administrative Agent, but only if such Foreign Lender is legally required to do so):
 
   (i)            duly completed copies of Internal Revenue Service Form W-8BEN claiming eligibility for benefits of an income tax treaty to which the United States is a party, or
 
   (ii)            duly completed copies of Internal Revenue Service Form W-8ECI, or
 
   (iii)           in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under section 881(c) of the Code, (x) a certificate to the effect that such Foreign Lender is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of the Borrower within the meaning of section 881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in section 881(c)(3)(C) of the Code and (y) duly completed copies of Internal Revenue Service Form W-8BEN, and
 
   (iv)            any other form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in United States Federal withholding tax duly completed together with such supplementary documentation as may be prescribed by Applicable Law to permit the Borrower to determine the withholding or deduction required to be made.
 
(f)             Treatment of Certain Refunds .  If the Administrative Agent or a Lender reasonably determines, in its sole discretion, that it has received a refund of, or a credit with respect to, any Taxes as to which it has been indemnified by the Borrower or with
 

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respect to which the Borrower has paid additional amounts pursuant to this Section, it shall pay to the Borrower an amount equal to such refund or credit (only to the extent such credit is realized) (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund or credit); provided that the Borrower, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority.  This paragraph shall not be construed to require the Administrative Agent or any Lender to make available its tax returns (or any other information relating to its taxes which it deems confidential) to the Borrower or any other Person.
 
(g)             Survival .  Without prejudice to the survival of any other agreement of the Borrower hereunder, the agreements and obligations of the Borrower contained in this Section shall survive the payment in full of the Obligations and the termination of the Commitments.
 
Section 3.12         Mitigation Obligations; Replacement of Lenders .
 
(a)             Designation of a Different Lending Office . If any Lender requests compensation under Section 3.10 , or requires the Borrower to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.11 , then such Lender shall use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.10 or Section 3.11 , as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.
 
(b)             Replacement of Lenders .  If any Lender requests compensation under Section 3.10 , or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.11 , or if any Lender defaults in its obligation to fund Loans hereunder, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 12.10 ), all of its interests, rights and obligations under this Agreement and the related Loan
 

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Documents to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that
 
   (i)            the Borrower shall have paid to the Administrative Agent the assignment fee specified in Section 12.10 ,
 
   (ii)            such Lender shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 3.11 ) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts),
 
   (iii)            in the case of any such assignment resulting from a claim for compensation under Section 3.10 or payments required to be made pursuant to Section 3.11 , such assignment will result in a reduction in such compensation or payments thereafter, and
 
   (iv)            such assignment does not conflict with Applicable Law.
 
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.
 
ARTICLE IV
 
CONDITIONS OF EFFECTIVENESS
Section 4.1           Reserved .
 
Section 4.2          Conditions to Effectiveness .  The effectiveness of the facility and the obligations of the Lenders to make Loans are subject to the satisfaction of each of the following conditions:
 
(a)             Executed Loan Documents .  This Agreement and a Revolving Credit Note in favor of each Revolving Credit Lender requesting a Revolving Credit Note shall have been duly authorized, executed and delivered to the Administrative Agent by the parties thereto, shall be in full force and effect and no Default or Event of Default shall exist hereunder or thereunder.
 
(b)             Evidence of Proceeds.   Borrower shall provide evidence that  Borrower has received debt and equity proceeds (including the proceeds of the Revolving Credit Facility, cash on hand, drawings under the Existing Revolving Credit Facility and the cash proceeds of equity investments in the Borrower prior to Closing) sufficient to pay the amounts to be paid by Borrower at the relevant Closing.
 

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(c)             Simultaneous Consummation.   The initial Closing shall be consummated simultaneously with the initial extension of credit (or, if Loans are not being used to finance the Acquisition, the effectiveness of this facility) and in accordance with the terms of the Stock Purchase Agreement (provided that if any commitment is assigned to or held by any Lender other than Barclays Bank PLC, no waiver, amendment, supplement or modification shall have been made to the Stock Purchase Agreement that is material and adverse to the interests of such other Lenders.)
 
(d)             Pro forma Financial Statements . The Administrative Agent shall have received pro forma income statements for the past fiscal year and the most recent interim period, and a pro forma balance sheet at the end of the most recent interim period (provided that Barclays Bank PLC has provided the financial information for the Transferred Entities for such fiscal year and interim period set forth in Section 6.28 of the Stock Purchase Agreement to Borrower no later than forty-five (45) days prior to Closing).
 
(e)             Effectiveness Certificates; Etc.   The Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
 
   (i)             Officer’s Certificate of the Borrower .  A certificate from a Responsible Officer of the Borrower to the effect that all representations and warranties of the Borrower contained in this Agreement and the other Loan Documents (other than the representations and warranties set forth in Section 5.1(e), 5.1(f) and 5.1(j)) are true, correct and complete  in all material respects as if made on such date, except to the extent that any such representation or warranty relates to an earlier specific date in which case such representation and warranty shall be true and correct as of such earlier date; that the Borrower is not in violation of any of the covenants contained in this Agreement and the other Loan Documents; that, after giving effect to the transactions contemplated by this Agreement, no Default or Event of Default has occurred and is continuing; and that the Borrower has satisfied each of the conditions set forth in Section 4.2 .
 
   (ii)             Certificate of Secretary of the Borrower .  A certificate of a Responsible Officer of the Borrower certifying as to the incumbency and genuineness of the signature of each officer of the Borrower executing Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation of the Borrower and all amendments thereto, certified as of a recent date by the Secretary of State of the State of Delaware, (B) the bylaws of the Borrower as in effect on the Closing Date, (C) resolutions duly adopted by the board of directors of the Borrower authorizing the transactions contemplated hereunder and the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party, and (D) each certificate required to be delivered pursuant to Section 4.2(e)(iii) .
 

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   (iii)             Certificates of Good Standing .  Certificates as of a recent date of the good standing of the Borrower under the laws of the State of Delaware and, to the extent requested by the Administrative Agent, each other jurisdiction where the Borrower is qualified to do business and, to the extent available, a certificate of the relevant taxing authorities of such jurisdictions certifying that the Borrower has filed required tax returns and owes no delinquent taxes except for those being contested in good faith pursuant to Section 5.1(e) .
 
   (iv)             Opinions of Counsel .  Favorable opinions of counsel to the Borrower addressed to the Administrative Agent and the Lenders with respect to the Borrower, the Loan Documents and such other matters as the Lenders shall reasonably request.
 
   (v)             Tax Forms .  Copies of the United States Internal Revenue Service forms required by Section 3.11(e) .
 
(f)             Consents; Defaults .
 
   (i)             Governmental and Third Party Approvals .   The Borrower shall have received all material governmental, shareholder and third party consents and approvals necessary (or any other material consents as determined in the reasonable discretion of the Administrative Agent) in connection with the transactions contemplated by this Agreement and the other Loan Documents and the other transactions contemplated hereby and all applicable waiting periods shall have expired without any action being taken by any Person that could reasonably be expected to restrain, prevent or impose any material adverse conditions on the Borrower or the transactions contemplated by the Loan Documents or that could seek or threaten any of the foregoing, and no law or regulation shall be applicable which in the reasonable judgment of the Administrative Agent could reasonably be expected to have a Material Adverse Effect .
 
   (ii)             No Injunction, Etc.   Except for the Disclosed Litigation Matters (as defined in Section 5.1(j) ), no action, proceeding, investigation, regulation or legislation shall have been instituted, threatened or proposed before any Governmental Authority to enjoin, restrain, or prohibit, or to obtain substantial damages in respect of, or which is related to or arises out of this Agreement or the other Loan Documents or the consummation of the transactions contemplated hereby or thereby, which could reasonably be expected to have a Material Adverse Effect.
 
(g)             Financial Matters .
 
   (i)             Financial Statements .  The Lenders shall have received the most recent audited Consolidated financial statements, and the unaudited Consolidated
 

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financial statements for the fiscal quarter ended sixty (60) days or more before the Closing Date, in each case of the Borrower and its Subsidiaries prepared in accordance with GAAP.
 
   (ii)             Payment at Closing; Fee Letters . The Borrower shall have paid to the Administrative Agent and the Lenders the accrued and unpaid fees due and set forth or referenced in Section 3.3 and any other accrued and unpaid fees or commissions due hereunder (including, without limitation, legal fees and expenses) and to any other Person such amount as may be due thereto in connection with the transactions contemplated hereby, including all taxes, fees and other charges in connection with the execution, delivery, recording, filing and registration of any of the Loan Documents.
 
(h)             Bank Regulatory Information .  At least ten (10) days prior to the Closing Date, the Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001) (the “ PATRIOT Act ”)).
 
(i)             Other Documents .  All opinions, certificates and other instruments and all proceedings in connection with the transactions contemplated by this Agreement shall be reasonably satisfactory in form and substance to the Administrative Agent.  The Administrative Agent shall have received copies of all other documents, certificates and instruments reasonably requested thereby, with respect to the transactions contemplated by this Agreement.
 
(j)             Initial Extensions of Credit .  If the Borrower uses the Loans to fund the Acquisition, the conditions to effectiveness shall be satisfied on the same date as the initial extensions of credit.
 

Section 4.3          Conditions to All Extensions of Credit .  The obligations of the Lenders to make any Extensions of Credit (including the initial Extension of Credit) are subject to the satisfaction of the following conditions precedent on the relevant borrowing, issuance or extension date:
 
(a)             Continuation of Representations and Warranties .  The representations and warranties contained in Article V shall be true and correct in all material respects on and as of such borrowing, issuance or extension date with the same effect as if made on and as of such date, except for any representation and warranty made as of an earlier date, which representation and warranty shall remain true and correct in all material respects as of such earlier date, and except for the representations and warranties contained in Section 5.1(e) , 5.1(f) and 5.1(j) .
 

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(b)             No Existing Default .  No Default or Event of Default shall have occurred and be continuing on the borrowing date with respect to such Loan or after giving effect to the Loans to be made on such date.
 
(c)             Notices .  The Administrative Agent shall have received a Notice of Borrowing from the Borrower in accordance with Section 2.2(a) with respect to any amounts to be borrowed on the Closing Date, and a Notice of Account Designation specifying the account or accounts to which the proceeds of any Loans made after the Closing Date are to be disbursed.
 
Section 4.4           Closing Date .  The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date, and such notice shall be conclusive and binding.
 
ARTICLE V
 
REPRESENTATIONS AND WARRANTIES OF THE BORROWER
 
Section 5.1          Representations and Warranties .  To induce the Administrative Agent and Lenders to enter into this Agreement and to induce the Lenders to make Extensions of Credit, the Borrower hereby represents and warrants to the Administrative Agent and Lenders that:
 
(a)             Organization; Power; Qualification .  Each of the Borrower and its Subsidiaries is duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation, has the power and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing or the failure of any such Subsidiary to be so organized or existing could not reasonably be expected to result in a Material Adverse Effect.
 
(b)             Authorization of Agreement, Loan Documents and Borrowing .  The Borrower has the right, power and authority and has taken all necessary corporate and other action to authorize the execution, delivery and performance of this Agreement and each of the other Loan Documents in accordance with their respective terms.  This Agreement and each of the other Loan Documents have been duly executed and delivered by the duly authorized officers of the Borrower, and each such document constitutes the legal, valid and binding obligation of the Borrower, enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies.
 
(c)             Compliance of Agreement, Loan Documents and Borrowing with Laws, Etc.   The execution, delivery and performance by the Borrower of the Loan Documents,
 

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in accordance with their respective terms, the Extensions of Credit hereunder and the transactions contemplated hereby do not and will not, by the passage of time, the giving of notice or otherwise, (i) require any Governmental Approval relating to the Borrower where the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse Effect, (ii) violate any Applicable Law relating to the Borrower except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, result in a breach of or constitute a default under the articles of incorporation or bylaws of the Borrower, (iv) conflict with, result in a breach of or constitute a default under any indenture, agreement or other instrument to which the Borrower is a party or by which any of its properties may be bound or any Governmental Approval relating to the Borrower, which could reasonably be expected to have a Material Adverse Effect, (v) result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by the Borrower or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of this Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse Effect.
 
(d)             Compliance with Law; Governmental Approvals .  Each of the Borrower and its Subsidiaries (i) has all Governmental Approvals required by any Applicable Law for it to conduct its business, each of which is in full force and effect, is final and not subject to review on appeal and is not the subject of any pending or, to the best of its knowledge, threatened attack by direct or collateral proceeding, (ii) is in compliance with each Governmental Approval applicable to it and in compliance with all other Applicable Laws (including, without limitation, all Environmental Laws and the PATRIOT Act) relating to it or any of its respective properties and (iii) has timely filed all material reports, documents and other materials required to be filed by it under all Applicable Laws with any Governmental Authority and has retained all material records and documents required to be retained by it under Applicable Law except in each case under this subsection (d) where the failure to have, comply, file or retain could not reasonably be expected to have a Material Adverse Effect .
 
(e)             Tax Returns and Payments .  Each of the Borrower and its Subsidiaries has duly filed or caused to be filed all federal, state, local and other tax returns required by Applicable Law to be filed, and has paid, or made adequate provision for the payment of, all federal, state, local and other taxes, assessments and governmental charges or levies upon it and its property, income, profits and assets which are due and payable except for (i) those that are being diligently contested in good faith by appropriate proceedings and for which the Borrower or the relevant Subsidiary shall have set aside on its books adequate reserves in accordance with GAAP and (ii) filings, taxes and charges as to which the failure to make or pay could not reasonably be expected to have a Material Adverse Effect.
 

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(f)             ERISA .
 
   (i)            Except as set forth on Schedule 5.1(f) or as could not reasonably be expected to result in a Material Adverse Effect, each Employee Benefit Plan is in material compliance with all applicable provisions of ERISA and the regulations and published interpretations thereunder except for any required amendments for which the remedial amendment period as defined in Section 401(b) or other applicable provision of the Code has not yet expired and except where a failure to so comply could not reasonably be expected to have a Material Adverse Effect;
 
   (ii)            As of the Closing Date, no Pension Plan has been terminated that could reasonably be expected to result in a Material Adverse Effect, nor has any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service been received or requested with respect to any Pension Plan, nor has there been any event requiring any disclosure under Section 4041(c)(3)(C) or 4063(a) of ERISA with respect to any Pension Plan; and
 
   (iii)            Except where the failure of any of the following representations to be correct in all material respects could not reasonably be expected to have a Material Adverse Effect, neither the Borrower nor any ERISA Affiliate has:  (A) engaged in a nonexempt prohibited transaction described in Section 406 of the ERISA or Section 4975 of the Code, (B) incurred any liability to the PBGC which remains outstanding other than the payment of premiums and there are no premium payments which are due and unpaid, (C) failed to make a required contribution or payment to a Multiemployer Plan, or (D) failed to make a required installment or other required payment under Section 412 of the Code.
 
(g)             Margin Stock .  T he Borrower is not engaged principally or as one of its activities in the business of extending credit for the purpose of “purchasing” or “carrying” any “margin stock” (as each such term is defined or used, directly or indirectly, in Regulation U of the Board of Governors of the Federal Reserve System).  No part of the proceeds of any of the Loans will be used in a manner which violates the provisions of Regulation T, U or X of such Board of Governors.
 
(h)             Government Regulation .  The Borrower is not an “investment company” or a company “controlled” by an “investment company” (as each such term is defined or used in the Investment Company Act of 1940, as amended) and the Borrower is not, nor after giving effect to any Extension of Credit will be, subject to regulation under the Interstate Commerce Act, as amended, or any other Applicable Law which limits its ability to incur the indebtedness or consummate the transactions contemplated hereby.
 

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(i)             Financial Statements .  The (i) audited financial statements delivered pursuant to Section 4.2(d) and (ii) unaudited financial statements delivered pursuant to Section 4.2(d) , are complete and correct in all material respects and fairly present in all material respects on a Consolidated basis the assets, liabilities and financial position of the Borrower and its Subsidiaries as at such dates, and the results of the operations and changes of financial position for the periods then ended (other than customary year-end adjustments for unaudited financial statements).  All such financial statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP.  Such financial statements show all material indebtedness and other material liabilities, direct or contingent, of the Borrower and its Subsidiaries as of the date thereof, including material liabilities for taxes and material commitments, in each case, to the extent required to be disclosed under GAAP.
 
(j)             Litigation . Except for matters existing on the Closing Date and set forth on Schedule 5.1(j) or disclosed in any filings made with the SEC prior to the Closing Date (collectively with Schedule 5.1(j) , the “ Disclosed Litigation Matters ”), there are no actions, suits or proceedings pending nor, to the knowledge of the Borrower, threatened against or in any other way relating adversely to or affecting the Borrower or any Subsidiary thereof or any of their respective properties in any court or before any arbitrator of any kind or before or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effect.
 
(k)            Absence of Defaults .  No event has occurred or is continuing which constitutes a Default or an Event of Default.
 
(l)             OFAC .  None of the Borrower, any Subsidiary of the Borrower or any Affiliate of the Borrower is in violation of and shall not violate any of the country or list based economic and trade sanctions administered and enforced by OFAC that are described or referenced at http://www.ustreas.gov/offices/enforcement/ofac/ or as otherwise published from time to time.  The proceeds of any Loan will not be used and have not been used to fund any operations in, finance any investments or activities in, or make any payments to, a Sanctioned Person or a Sanctioned Entity.
 
(m)            Disclosure .  No financial statement, material report, material certificate or other material information delivered pursuant to Article VI hereunder, taken together as a whole with all SEC filings made from time to time by the Borrower, by or on behalf of the Borrower or any of its Subsidiaries contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
 
(n)             Solvency .  After giving effect to the consummation of the Acquisition (to the extent consummated at such date in accordance with the Stock Purchase Agreement) and any borrowings undertaken in connection therewith (including drawings under this Revolving Credit Facility) and taking into account any rights of contribution, the Borrower and each of its Subsidiaries are and shall be Solvent.
 


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Section 5.2          Survival of Representations and Warranties, Etc .   All representations and warranties set forth in this Article V and all representations and warranties contained in any certificate delivered by the Borrower pursuant hereto, or any of the Loan Documents (including, but not limited to, any such representation or warranty made in or in connection with any amendment thereto) shall constitute representations and warranties made under this Agreement.  All representations and warranties made under this Agreement shall be made or deemed to be made at and as of the Closing Date (except those that are expressly made as of a specific date), shall survive the Closing Date and shall not be waived by the execution and delivery of this Agreement, any investigation made by or on behalf of the Lenders or any borrowing hereunder.
 
ARTICLE VI
 
FINANCIAL INFORMATION AND NOTICES
 
Until all the Loans and accrued Obligations have been paid and satisfied in full and the Commitments terminated, unless consent has been obtained in the manner set forth in Section 12.2 , the Borrower will furnish or cause to be furnished to the Administrative Agent  (and the Administrative Agent shall promptly furnish or cause to be furnished to the Lenders) at the Administrative Agent’s Office at the address set forth in Section 12.1 , or such other office as may be designated by the Administrative Agent from time to time:
 
Section 6.1           Financial Statements .
 
(a)             Quarterly Financial Statements .  As soon as practicable and in any event within one hundred twenty (120) days after the end of each fiscal quarter of each Fiscal Year, an unaudited Consolidated balance sheet of the Borrower and its Subsidiaries as of the close of such fiscal quarter and unaudited Consolidated statements of income, retained earnings and cash flows and a report containing management’s discussion and analysis of such financial statements for the fiscal quarter then ended and that portion of the Fiscal Year then ended, including the notes thereto, all in reasonable detail setting forth in comparative form the corresponding figures as of the end of and for the corresponding period in the preceding Fiscal Year and prepared by the Borrower in accordance with GAAP and, if applicable, containing disclosure of the effect on the financial position or results of operations of any change in the application of accounting principles and practices during the period, and certified by the chief financial officer of the Borrower to present fairly in all material respects the financial condition of the Borrower and its Subsidiaries on a Consolidated basis as of their respective dates and the results of operations of the Borrower and its Subsidiaries for the respective periods then ended, subject to normal year-end adjustments.  Delivery by the Borrower to the Administrative Agent and the Lenders of the Borrower’s quarterly report to the SEC on Form 10-Q with respect to any fiscal quarter, or the availability of such report on EDGAR Online, within the period specified above shall be deemed to be compliance by the Borrower with this Section 6.1(a) .
 

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(b)             Annual Financial Statements .  As soon as practicable and in any event within one hundred fifty (150) days after the end of each Fiscal Year, an audited Consolidated balance sheet of the Borrower and its Subsidiaries as of the close of such Fiscal Year and audited Consolidated statements of income, retained earnings and cash flows and a report containing management’s discussion and analysis of such financial statements for the Fiscal Year then ended, including the notes thereto, all in reasonable detail setting forth in comparative form the corresponding figures as of the end of and for the preceding Fiscal Year and prepared in accordance with GAAP and, if applicable, containing disclosure of the effect on the financial position or results of operations of any change in the application of accounting principles and practices during the year.  Such annual financial statements shall be audited by an independent certified public accounting firm, and accompanied by a report thereon by such certified public accountants that is not qualified with respect to scope limitations imposed by the Borrower or any of its Subsidiaries or with respect to accounting principles followed by the Borrower or any of its Subsidiaries not in accordance with GAAP.  Delivery by the Borrower to the Administrative Agent and the Lenders of the Borrower’s annual report to the SEC on Form 10-K with respect to any fiscal year, or the availability of such report on EDGAR Online, within the period specified above shall be deemed to be compliance by the Borrower with this Section 6.1(b) .
 
Section 6.2          Officer’s Compliance Certificate .  At each time financial statements are delivered pursuant to Section 6.1(a) or (b) , an Officer’s Compliance Certificate.
 
Section 6.3          Other Reports . Promptly upon request, such other information regarding the operations, business affairs and financial condition of the Borrower or any of its Subsidiaries as the Administrative Agent or any Lender (through the Administrative Agent) may reasonably request.
 
Section 6.4           Notice of Litigation and Other Matters .  Promptly after a Responsible Officer of the Borrower obtains knowledge thereof, written notice of:
 
(a)            the occurrence of any Default;
 
(b)            the commencement of all proceedings and investigations by or before any Governmental Authority and all actions and proceedings in any court or before any arbitrator against or involving the Borrower or any Subsidiary thereof or any of their respective properties, assets or businesses that could reasonably be expected to have a Material Adverse Effect; and
 
(c)            any announcement by S&P or Moody’s of any change in a Debt Rating.
 
Section 6.5          Accuracy of Information .  All written information, reports, statements and other papers and data furnished by or on behalf of the Borrower to the Administrative Agent or any Lender whether pursuant to this Article VI or any other provision of this Agreement, shall, at the time the same is so furnished and when taken together as a whole with all SEC filings made
 

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from time to time by the Borrower, comply with the representations and warranties set forth in Section 5.1(m) .
 
ARTICLE VII
 
AFFIRMATIVE COVENANTS
 
Until all of the Loans and accrued Obligations have been paid and satisfied in full and the Commitments terminated, unless consent has been obtained in the manner provided for in Section 12.2 , the Borrower will, and will cause each of its Subsidiaries to:
 
Section 7.1          Preservation of Corporate Existence and Related Matters .  Except as permitted by Section 9.2 , preserve and maintain its separate existence and all rights, franchises, licenses and privileges necessary to the conduct of its business, and qualify and remain authorized to do business in each jurisdiction in which it is required to do so, except, in each case (other than the existence of the Borrower), where the failure to comply with the foregoing could not reasonably be expected to have a Material Adverse Effect.
 
Section 7.2          Maintenance of Property .  Protect and preserve all properties necessary in and material to its business, including copyrights, patents, trade names, service marks and trademarks; maintain in good working order and condition, ordinary wear and tear excepted, all buildings, equipment and other tangible real and personal property; and from time to time make or cause to be made all repairs, renewals and replacements thereof and additions to such property necessary for the conduct of its business, so that the business carried on in connection therewith may be conducted in a commercially reasonable manner, except, in each case, for such failures that could not reasonably be expected to have a Material Adverse Effect.
 
Section 7.3          Insurance .  Maintain insurance with financially sound and reputable insurance companies or, if the Borrower deems it consistent with prudent business practices, maintain self-insurance, in either case, against such risks and in such amounts as are customarily maintained by similar businesses and as may be required by Applicable Law (including, without limitation, hazard and business interruption insurance), and from time to time deliver to the Administrative Agent upon its request information in reasonable detail as to the insurance then in effect, stating the names of the insurance provider, the amounts and rates of the insurance, the dates of the expiration thereof and the properties and risks covered thereby.
 
Section 7.4          Accounting Methods and Financial Records .  Maintain a system of accounting, and keep proper books, records and accounts (which shall be true and complete in all material respects) as may be required or as may be necessary to permit the preparation of financial statements in accordance with GAAP and in compliance with the regulations of any Governmental Authority having jurisdiction over it or any of its properties.
 
Section 7.5          Payment of Taxes .  Pay and perform all Taxes, assessments and other governmental charges that may be levied or assessed upon it or any of its property to the extent the failure to pay any such item (either individually or together with all other such unpaid items)
 

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could reasonably be expected to have a Material Adverse Effect; provided , that the Borrower or such Subsidiary may contest any such item in good faith so long as adequate reserves are maintained with respect thereto in accordance with GAAP.
 
Section 7.6           Compliance With Laws and Approvals .  Observe and remain in compliance in all material respects with all Applicable Laws (including without limitation, all Environmental Laws, ERISA and the PATRIOT Act) and maintain in full force and effect all Governmental Approvals, in each case applicable to the conduct of its business except where the failure to do so could not reasonably be expected to have a Material Adverse Effect.
 
Section 7.7           Visits and Inspections .  Permit representatives of the Administrative Agent or, upon the occurrence and during the continuation of an Event of Default, any Lender, from time to time upon prior reasonable notice and at such times during normal business hours, to visit and inspect its properties; and inspect, audit and make extracts from its books, records and files, including, but not limited to, management letters prepared by independent accountants; provided , that, unless an Event of Default shall have occurred and be continuing, (a) any inspection shall be at the Administrative Agent’s own expense and (b) such inspections, visitations and/or examinations shall be limited to once during any calendar year.
 
Section 7.8           Use of Proceeds .  The Borrower shall use the proceeds of the Extensions of Credit solely to finance the Acquisition or to refinance Qualifying Commercial Paper.
 
Section 7.9           Most Favored Nation Status .  The Borrower agrees that to the extent the Existing Revolving Credit Facility is amended, modified, supplemented, restated, amended and restated or replaced with terms more favorable in any respect to the lenders thereunder than the corresponding terms provided in this Agreement, or to the extent the Borrower enters into a credit facility the proceeds of which are used to refinance the Existing Revolving Credit Facility or this Agreement and which contain terms more favorable in any respect to the lenders thereunder, the Borrower shall promptly notify the Lenders of the document or documents setting out such more favorable terms.  Upon the Administrative Agent’s request, the Borrower, the Lenders and the Administrative Agent shall within ten (10) Business Days amend this Agreement to reflect such favorable terms (or to include terms that the Lenders are satisfied in their sole discretion have substantially the same effect as the favorable terms).
 

ARTICLE VIII
 
FINANCIAL COVENANTS
 
Until all of the Loans and accrued Obligations have been paid and satisfied in full and the Commitments terminated, unless consent has been obtained in the manner set forth in Section 12.2 , the Borrower and its Subsidiaries on a Consolidated basis will not:
 
Section 8.1           Leverage Ratio .  As of any fiscal quarter end, permit the Consolidated Leverage Ratio to be greater than 3.00 to 1.00.
 

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ARTICLE IX
 
NEGATIVE COVENANTS
 
Until all of the Loans and accrued Obligations have been paid and satisfied in full and the Commitments terminated, unless consent has been obtained in the manner set forth in Section 12.2 , the Borrower has not and will not:
 
Section 9.1          Limitations on Liens .  Permit the Borrower or any Material Subsidiary to create, incur, assume or suffer to exist, any Lien on or with respect to any of its assets or properties (including, without limitation, shares of Capital Stock of any other Person), real or personal, whether now owned or hereafter acquired, as security for Indebtedness, except:
 
(a)            Liens existing on any asset of any Person at the time such Person becomes a Material Subsidiary or is merged or consolidated with or into a Material Subsidiary which (i) were not created in contemplation of or in connection with such event and (ii) do not extend to or cover any other property or assets of Borrower or any Subsidiary;
 
(b)            (x) Liens not otherwise permitted by this Section and in existence on the Closing Date and described on Schedule 9.1 and (y) other Liens existing on the Closing Date that secure Indebtedness existing on the date hereof the aggregate outstanding principal amount of which does not exceed $50,000,000;
 
(c)            Liens securing Indebtedness (a) of any Material Subsidiary owed to the Borrower, any Subsidiary or any Excluded Subsidiary or (b) incurred or assumed to finance the acquisition, construction or improvement of any asset, including, without limitation, purchase money Liens and Liens evidencing equipment financings and equipment leases;
 
(d)            cash deposits and securities securing obligations in respect of Hedging Agreements;
 
(e)            any extension, renewal or replacement of any Lien permitted by clauses (a) through (d); provided that (i) the Liens permitted under this clause shall not (A) secure any Indebtedness other than the Indebtedness that was secured by the Lien being extended, renewed or replaced (or Indebtedness extending, renewing or replacing such Indebtedness as permitted hereunder) and (B) be extended to cover any property that was not encumbered by the Lien being extended, renewed or replaced; and (ii) the principal amount of Indebtedness secured by the Lien permitted by this clause shall not be increased over the principal amount of such Indebtedness immediately prior to such extension, renewal or replacement;
 
(f)            Liens securing judgments for the payment of money not constituting an Event of Default under Section 10.1(m) or securing appeal or other surety bonds related to such judgments;
 

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(g)            Liens on assets of any Material Subsidiary that is not a Domestic Subsidiary;
 
(h)            Liens or rights of set-off in favor of a bank or financial institution in respect of a bank account maintained with such bank or financial institution;
 
(i)            Liens granted in respect of any Permitted Securitization; and
 
(j)            Liens not otherwise permitted hereunder securing outstanding Indebtedness not at any time exceeding in the aggregate $300,000,000.
 
Section 9.2          Limitations on Mergers and Liquidation .  Merge, consolidate or enter into any similar combination with any other Person or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except:
 
(a)            any Subsidiary of the Borrower may be merged or consolidated or enter into any similar combination with or into the Borrower or any Subsidiary of the Borrower ( provided that the Borrower shall be the continuing or surviving Person of any such merger, consolidation or similar combination to which it is a party);
 
(b)            any Subsidiary may sell, lease, transfer or otherwise dispose of any or all of its assets in respect of a liquidation to the Borrower or any Subsidiary;
 
(c)            the Borrower or any Subsidiary of the Borrower may merge, consolidate or enter into any similar combination with or into another Person (other than the Borrower) in connection with an acquisition so long as the survivor of such merger, consolidation or similar combination is the Borrower or any such Subsidiary thereof;
 
(d)            any Subsidiary of the Borrower may wind-up into the Borrower or any Subsidiary of the Borrower; and
 
(e)            mergers, consolidations or similar combinations of a Subsidiary of the Borrower with a third-party as part of a sale or other disposition of all or any part of such Subsidiary not prohibited by Section 9.3 hereof.
 
Section 9.3          Sale of All or Substantially All Assets .  Sell, lease, transfer or otherwise dispose of all or substantially all of its assets, in each case for the Borrower and its Subsidiaries taken as a whole, unless any such sale, lease, transfer or other disposition is made on an arms-length basis for fair consideration (as reasonably determined by the Borrower) .
 
Section 9.4          Nature of Business .  Engage, together with its Subsidiaries, in any business as their principal lines of business, taken as a whole, other than the principal lines of business engaged in by the Borrower and its Subsidiaries, taken as a whole, on the date hereof and similar or related businesses.
 

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ARTICLE X
 
DEFAULT AND REMEDIES
 
Section 10.1        Events of Default .  Each of the following shall constitute an Event of Default, whatever the reason for such event and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment or order of any court or any order, rule or regulation of any Governmental Authority or otherwise:
 
(a)             Default in Payment of Principal of Loans .  The Borrower shall default in any payment of principal of any Loan when and as due (whether at maturity, by reason of acceleration or otherwise).
 
(b)             Other Payment Default .  The Borrower shall default in the payment when and as due (whether at maturity, by reason of acceleration or otherwise) of any interest on any Loan or the payment of any other Obligation, and such default shall continue for a period of three (3) Business Days.
 
(c)             Misrepresentation .  Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of the Borrower herein, in any other Loan Document, or in any document delivered in connection herewith or therewith shall be incorrect or misleading in any material respect when made or deemed made.
 
(d)             Default in Performance of Certain Covenants .  The Borrower shall default in the performance or observance of any covenant or agreement contained in Section 6.1 , 6.2 , 6.4(a) or Article VIII , and, in the case of a default in the performance or observance of any covenant or agreement contained in Article IX , such default shall continue for a period of ten (10) Business Days.
 
(e)             Default in Performance of Other Covenants and Conditions .  The Borrower shall default in the performance or observance of any term, covenant, condition or agreement contained in this Agreement (other than as specifically provided for otherwise in this Section) or any other Loan Document and such default shall continue for a period of thirty (30) days after written notice thereof has been given to the Borrower by the Administrative Agent.
 
(f)             Hedging Agreement .  The Borrower shall default in the performance or observance of any terms, covenant, condition or agreement (after giving effect to any applicable grace or cure period) under any Hedging Agreement and such default causes the termination of such Hedging Agreement and the Termination Value owed by the Borrower as a result thereof exceeds $100,000,000.
 
(g)             Indebtedness Cross-Default; Indebtedness Cross-Acceleration .  The Borrower shall (i)  fail to pay any principal or interest, regardless of amount, due in respect of any Indebtedness (other than the Loans) the aggregate outstanding amount of
 

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which is in excess of $100,000,000 and such failure to pay shall continue for a period beyond the greater of (x) any period of grace provided with respect thereto and (y) a period of three (3) Business Days or (ii) default in the observance or performance of any agreement or condition relating to any Indebtedness (other than the Loans) the aggregate outstanding amount of which Indebtedness is in excess of $100,000,000   or contained in any instrument or agreement evidencing, securing or relating thereto or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause such Indebtedness to become due prior to its stated maturity (any applicable grace period having expired).
 
(h)             Change in Control .  Any Change in Control shall occur.
 
(i)             Voluntary Bankruptcy Proceeding .  The Borrower or any Material Subsidiary thereof shall (i) commence a voluntary case under the federal bankruptcy laws (as now or hereafter in effect), (ii) file a petition seeking to take advantage of any other laws, domestic or foreign, relating to bankruptcy, insolvency, reorganization, winding up or composition for adjustment of debts, (iii) consent to or fail to contest in a timely and appropriate manner any petition filed against it in an involuntary case under such bankruptcy laws or other laws, (iv) apply for or consent to, or fail to contest in a timely and appropriate manner, the appointment of, or the taking of possession by, a receiver, custodian, trustee, or liquidator of itself or of a substantial part of its property, domestic or foreign, (v) admit in writing its inability to pay its debts as they become due, (vi) make a general assignment for the benefit of creditors, or (vii) take any corporate action for the purpose of authorizing any of the foregoing.
 
(j)             Involuntary Bankruptcy Proceeding .  A case or other proceeding shall be commenced against the Borrower or any Material Subsidiary thereof in any court of competent jurisdiction seeking (i) relief under the federal bankruptcy laws (as now or hereafter in effect) or under any other laws, domestic or foreign, relating to bankruptcy, insolvency, reorganization, winding up or adjustment of debts, or (ii) the appointment of a trustee, receiver, custodian, liquidator or the like for the Borrower or any Material Subsidiary thereof or for all or any substantial part of their respective assets, domestic or foreign, and such case or proceeding shall continue without dismissal or stay for a period of sixty (60) consecutive days, or an order granting the relief requested in such case or proceeding (including, but not limited to, an order for relief under such federal bankruptcy laws) shall be entered.
 
(k)             Failure of Agreements .  Any provision of this Agreement or any provision of any other Loan Document shall for any reason cease to be valid and binding on the Borrower party thereto or any such Person shall so state in writing.
 
(l)             Termination Event .  The occurrence of any of the following events:  (i) an accumulated funding deficiency in excess of $100,000,000 occurs or exists, whether or not waived, with respect to any Pension Plan, (ii) a Termination Event or (iii) Borrower or any ERISA Affiliate as employers under one or more Multiemployer Plans makes a
 

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complete or partial withdrawal from any such Multiemployer Plan and the plan sponsor of such Multiemployer Plans notifies such withdrawing employer that such employer has incurred a withdrawal liability requiring payments in an amount exceeding $100,000,000.
 
(m)            Judgment .  A judgment or order for the payment of money which causes the aggregate amount, not covered by any indemnifications by “Seller” under the Stock Purchase Agreement or insurance (which such insurance coverage has not been denied in writing), of all such judgments to exceed $100,000,000 in any Fiscal Year shall be entered against the Borrower by any court and such judgment or order shall continue without having been discharged, vacated or stayed for a period of forty-five (45) consecutive days after the entry thereof.
 
Section 10.2        Remedies .  Upon the occurrence of an Event of Default, with the consent of the Required Lenders, the Administrative Agent may, or upon the request of the Required Lenders, the Administrative Agent shall, by notice to the Borrower:
 
(a)             Acceleration; Termination of Facilities .  Terminate the Commitments and declare the principal of and interest on the Loans at the time outstanding, and all other amounts owed to the Lenders and to the Administrative Agent under this Agreement or any of the other Loan Documents and all other Obligations, to be forthwith due and payable, whereupon the same shall immediately become due and payable without presentment, demand, protest or other notice of any kind, all of which are expressly waived by the Borrower, anything in this Agreement or the other Loan Documents to the contrary notwithstanding, and terminate the Credit Facility and any right of the Borrower to request borrowings thereunder; provided , that upon the occurrence of an Event of Default specified in Section 10.1(i) or (j) , the Credit Facility shall be automatically terminated and all Obligations shall automatically become due and payable without presentment, demand, protest or other notice of any kind, all of which are expressly waived by Borrower, anything in this Agreement or in any other Loan Document to the contrary notwithstanding.
 
(b)             Rights of Collection .  Exercise on behalf of the Lenders all of its other rights and remedies under this Agreement, the other Loan Documents and Applicable Law, in order to satisfy all of the Borrower’s Obligations.
 
Section 10.3        Rights and Remedies Cumulative; Non-Waiver; etc .   The enumeration of the rights and remedies of the Administrative Agent and the Lenders set forth in this Agreement is not intended to be exhaustive and the exercise by the Administrative Agent and the Lenders of any right or remedy shall not preclude the exercise of any other rights or remedies, all of which shall be cumulative, and shall be in addition to any other right or remedy given hereunder or under the other Loan Documents or that may now or hereafter exist at law or in equity or by suit or otherwise.  No delay or failure to take action on the part of the Administrative Agent or any Lender in exercising any right, power or privilege shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege or shall be construed to be
 

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a waiver of any Event of Default.  No course of dealing between the  Borrower, the Administrative Agent and the Lenders or their respective agents or employees shall be effective to change, modify or discharge any provision of this Agreement or any of the other Loan Documents or to constitute a waiver of any Event of Default.
 
Section 10.4        Crediting of Payments and Proceeds .  In the event that the Borrower shall fail to pay any of the Obligations when due and the Obligations have been accelerated pursuant to Section 10.2 , all payments received by the Lenders upon the Obligations and all net proceeds from the enforcement of the Obligations shall be applied:
 
First , to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts, including attorney fees, payable to the Administrative Agent in its capacity as such;
 
Second , to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal, interest and letter of credit commissions payable under Section 3.3(a) ) payable to the Lenders, including attorney fees (ratably among the Lenders in proportion to the respective amounts described in this clause Second payable to them);
 
Third , to payment of that portion of the Obligations constituting accrued and unpaid interest on the Loans (ratably among the Lenders in proportion to the respective amounts described in this clause Third payable to them);
 
Fourth , to payment of that portion of the Obligations constituting unpaid principal of the Loans (ratably among the Lenders in proportion to the respective amounts described in this clause Fourth held by them);
 
Last , the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Borrower or as otherwise required by Applicable Law.
 
Section 10.5        Administrative Agent May File Proofs of Claim .   In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Borrower, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise:
 
(a)            to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders and the Administrative Agent and their respective agents and counsel and all other amounts due
 

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the Lenders and the Administrative Agent under Sections 3.3 and 12.3 ) allowed in such judicial proceeding; and
 
(b)            to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
 
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 3.3 and 12.3 .
 
Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.
 
ARTICLE XI
 
THE ADMINISTRATIVE AGENT
 
Section 11.1        Appointment and Authority .   Each of the Lenders hereby irrevocably appoints Barclays Bank to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto.  The provisions of this Article are solely for the benefit of the Administrative Agent and the Lenders, and neither the Borrower nor any Subsidiary thereof shall have rights as a third party beneficiary of any of such provisions.
 
Section 11.2        Rights as a Lender .   The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity.  Such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders.
 
Section 11.3       Exculpatory Provisions .   The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents.  Without limiting the generality of the foregoing, the Administrative Agent:
 

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(a)            shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;
 
(b)            shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or Applicable Law; and
 
(c)            shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity.
 
The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Section 10.2 and Section 12.2 ) or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final nonappealable judgment.  The Administrative Agent shall be deemed not to have knowledge of any Default unless and until notice describing such Default is given to the Administrative Agent by the Borrower or a Lender.
 
The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.
 
Section 11.4        Reliance by the Administrative Agent .   The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person.  The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for
 

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relying thereon.  In determining compliance with any condition hereunder to the making of a Loan, that by its terms must be fulfilled to the satisfaction of a Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent shall have received notice to the contrary from such Lender prior to the making of such Loan.  The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
 
Section 11.5        Delegation of Duties .   The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent.  The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties.  The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent.
 
Section 11.6         Resignation of Administrative Agent .
 
(a)            The Administrative Agent may at any time give notice of its resignation to the Lenders and the Borrower.  Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States, that, in any such case (except when an Event of Default has occurred and is continuing) is reasonably satisfactory to the Borrower.  If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, appoint a successor Administrative Agent meeting the qualifications (including the Borrower’s reasonable satisfaction, except when an Event of Default has occurred and is continuing) set forth above; provided that if the Administrative Agent shall notify the Borrower and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (i) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (ii) all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender directly, until such time as the Required Lenders appoint a successor Administrative Agent as provided for above in this paragraph.  Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the retiring (or retired) Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the
 

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other Loan Documents (if not already discharged therefrom as provided above in this paragraph).  The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor.  After the retiring Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article and Section 12.3 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent was acting as Administrative Agent.
 
Section 11.7         Non-Reliance on Administrative Agent and Other Lenders .   Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement.  Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.
 
Section 11.8         No Other Duties, etc .   Anything herein to the contrary notwithstanding, none of the syndication agents, documentation agents, co-agents, book manager, lead manager, arranger, lead arranger or co-arranger listed on the cover page or signature pages hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent or a Lender hereunder.
 
ARTICLE XII
 
MISCELLANEOUS
 
Section 12.1         Notices .
 
(a)             Method of Communication .  Except as otherwise provided in this Agreement, all notices and communications hereunder shall be in writing (for purposes hereof, the term “writing” shall include information in electronic format such as electronic mail and internet web pages).  Any notice shall be effective if delivered by hand delivery or sent via electronic mail, posting on an internet web page, telecopy, recognized overnight courier service or certified mail, return receipt requested, and shall be presumed to be received by a party hereto (i) on the date of delivery if delivered by hand or sent by electronic mail, posting on an internet web page, telecopy, (ii) on the next Business Day if sent by recognized overnight courier service and (iii) on the third Business Day following the date sent by certified mail, return receipt requested; provided , that any notice given pursuant to Article X shall be effective only if delivered by hand or sent via telecopy, recognized overnight courier service or certified mail, return receipt
 

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requested.  A telephonic notice to the Administrative Agent as understood by the Administrative Agent will be deemed to be the controlling and proper notice in the event of a discrepancy with or failure to receive a confirming written notice.
 
(b)             Addresses for Notices .  Notices to any party shall be sent to it at the following addresses, or any other address as to which all the other parties are notified in writing.
 
 
If to the Borrower:
BlackRock, Inc.
40 East 52 nd Street
New York, NY  10022
Attention:  Ann Marie Petach, Managing Director and Chief Financial Officer
Telephone No.:  (212) 810-8386
Telecopy No.:  (212) 810-8765
     
 
With copies to:
BlackRock, Inc.
40 East 52 nd Street
New York, NY  10022
Attention: Robert P. Connolly, Esquire, General Counsel
Telephone No.:  (212) 810-3743
Telecopy No.:  (212) 810-3744
     
   
BlackRock, Inc.
40 East 52 nd Street
New York, NY 10022
Attention: Amy Engel, Managing Director and Treasurer
Telephone No.:  (212) 810-5547
Telecopy No.:  (212) 810-8765
     
 
If to Barclays Bank PLC as Administrative Agent:
Barclays Bank PLC
745 Seventh Avenue
New York, NY 10019
Attention:  David Barton, Director
Telecopy No.: (212) 412-7600
Telephone No.: (212) 526-9870
Email: Davide.Barton@barcap.com


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With copies to:
Barclays Capital Services LLC
70 Hudson Street
New York Metro Campus
Jersey City, NJ 07302
Attention:  May Wong
Telecopy No.: (201) 499-3367
Telephone No.: (973) 576-3014
Email: May.Wong@barcap.com
     
 
If to any Lender:
To the address set forth for such Lender on the Register
 
(c)             Administrative Agent’s Office .  The Administrative Agent hereby designates its office located at the address set forth above, or any subsequent office which shall have been specified for such purpose by written notice to the Borrower and Lenders, as the Administrative Agent’s Office referred to herein, to which payments due are to be made and at which Loans will be disbursed.
 
Section 12.2        Amendments, Waivers and Consents .  Except as set forth below or as specifically provided in any Loan Document, any term, covenant, agreement or condition of this Agreement or any of the other Loan Documents may be amended or waived by the Lenders, and any consent given by the Lenders, if, but only if, such amendment, waiver or consent is in writing signed by the Required Lenders (or by the Administrative Agent with the consent of the Required Lenders) and delivered to the Administrative Agent and, in the case of an amendment, signed by the Borrower; provided, that no amendment, waiver or consent shall:
 
(a)            extend or increase the Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 10.2 ) or the amount of Loans of any Lender without the written consent of such Lender;
 
(b)            postpone any date fixed by this Agreement or any other Loan Document for any payment of principal, interest, fees or other amounts due to the Lenders (or any of them) hereunder or under any other Loan Document without the written consent of each Lender directly affected thereby;
 
(c)            reduce the principal of, or the rate of interest specified herein on, any Loan  or (subject to clause (ii) of the second proviso to this Section) any fees or other amounts payable hereunder or under any other Loan Document without the written consent of each Lender directly affected thereby; provided that only the consent of the Required Lenders shall be necessary to waive any obligation of the Borrower to pay interest at the rate set forth in Section 3.1(c) during the continuance of an Event of Default;
 
(d)            change Section 3.4 , 3.6 or 10.4 in a manner that would alter the pro rata sharing of payments required thereby without the written consent of each Lender;
 

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(e)            change any provision of this Section or the definition of “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Lender; or
 
provided further , that (i) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above, affect the rights or duties of the Administrative Agent under this Agreement or any other Loan Document; and (ii) the Fee Letters may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto.  Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such Lender.
 
Section 12.3        Expenses; Indemnity .
 
(a)             Costs and Expenses .  The Borrower shall pay (i) all reasonable and invoiced out-of-pocket costs and expenses incurred by the Administrative Agent and its Affiliates (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent) in connection with the syndication of the credit facilities provided for herein, the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable and invoiced out-of-pocket costs and expenses incurred by the Administrative Agent (including the fees, charges and disbursements of any counsel for the Administrative Agent) in connection with the enforcement or protection of the rights of the Administrative Agent and/or the other Lenders (A) in connection with this Agreement and the other Loan Documents, including their respective rights under this Section, or (B) in connection with the Loans made hereunder, including all such reasonable and invoiced out-of-pocket costs and expenses incurred during any workout, restructuring or negotiations in respect of such Loans.
 
(b)             Indemnification by the Borrower .  The Borrower shall indemnify the Administrative Agent (and any sub-agent thereof), each Lender and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims (including, without limitation, any Environmental Claims or civil penalties or fines assessed by OFAC), damages, liabilities and related reasonable and invoiced out-of-pocket expenses (including the reasonable fees, charges and disbursements of any counsel for any Indemnitee) incurred by any Indemnitee or asserted against any Indemnitee by any third party or by the Borrower arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document, the Commitment Letter, the Fee Letter(s) or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or
 

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thereunder or the consummation of the transactions contemplated hereby or thereby, (ii) any Loan or the use or proposed use of the proceeds therefrom, (iii)  any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower, and regardless of whether any Indemnitee is a party thereto, or (iv) any claim (including, without limitation, any Environmental Claims or civil penalties or fines assessed by OFAC), investigation, litigation or other proceeding (whether or not the Administrative Agent or any Lender is a party thereto) and the prosecution and defense thereof, arising out of or in any way connected with the Loans, this Agreement, any other Loan Document, or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby, including without limitation, reasonable attorneys’ and consultants’ fees, provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or (y) result from a claim brought by the Borrower against an Indemnitee for breach of such Indemnitee’s obligations hereunder or under any other Loan Document, if the Borrower has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction.
 
(c)             Reimbursement by Lenders .  To the extent that the Borrower for any reason fails to indefeasibly pay any amount required under clause (a) or (b) of this Section to be paid by it to the Administrative Agent (or any sub-agent thereof) or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent), or such Related Party, as the case may be, such Lender’s Commitment Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount, provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent) in its capacity as such, or against any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent) in connection with such capacity.  The obligations of the Lenders under this clause (c) are subject to the provisions of Section 3.7 .
 
(d)             Waiver of Consequential Damages, Etc.   To the fullest extent permitted by Applicable Law, each party hereto agrees that it shall not assert, and hereby waives, any claim against any other party hereto, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof.  No Indemnitee referred to in clause (b) above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.
 

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(e)             Payments .  All amounts due under this Section shall be payable promptly after demand therefor.
 
Section 12.4         Right of Setoff .
 
(a)            If an Event of Default under Section 10.1(a) , (b) , (i) or (j) shall have occurred and be continuing, each Lender and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by Applicable Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations at any time owing by such Lender or any such Affiliate to or for the credit or the account of the Borrower against any and all of the obligations of the Borrower now or hereafter existing under this Agreement or any other Loan Document to such Lender, irrespective of whether or not such Lender shall have made any demand under this Agreement or any other Loan Document and although such obligations of the Borrower may be contingent or unmatured or are owed to a branch or office of such Lender different from the branch or office holding such deposit or obligated on such indebtedness.  The rights of each Lender and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender or their respective Affiliates may have.  Each Lender agrees to notify the Borrower and the Administrative Agent promptly after any such setoff and application; provided that the failure to give such notice shall not affect the validity of such setoff and application.
 
(b)            Each Lender and any assignee of such Lender in accordance with Section 12.10 are hereby authorized by the Borrower to combine currencies, as deemed necessary by such Person, in order to effect any set-off pursuant to Section 12.4(a) .
 
Section 12.5         Governing Law .
 
(a)             Governing Law .  This Agreement and the other Loan Documents, unless expressly set forth therein, shall be governed by, and construed in accordance with, the law of the State of New York, including Section 5-1401 and 5-1402 of the General Obligation Law of the State of New York , without reference to any other conflicts or choice of law principles thereof.
 
(b)             Submission to Jurisdiction . The Borrower irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of the courts of the State of New York sitting in New York, New York and of the United States District Court sitting in New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or any other Loan Document, or for recognition or enforcement of any judgment, and each of the parties hereto irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State court or, to the fullest extent permitted by Applicable Law, in such Federal court.  Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may
 

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be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.  Nothing in this Agreement or in any other Loan Document shall affect any right that the Administrative Agent, any Lender may otherwise have to bring any action or proceeding relating to this Agreement or any other Loan Document against the Borrower or its properties in the courts of any jurisdiction.
 
(c)             Waiver of Venue .  The Borrower irrevocably and unconditionally waives, to the fullest extent permitted by Applicable Law, any objection that it may now or hereafter have to the laying of venue of any action or proceeding arising out of or relating to this Agreement or any other Loan Document in any court referred to in paragraph (b) of this Section.  Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by Applicable Law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
 
(d)             Service of Process .  Each party hereto irrevocably consents to service of process in the manner provided for notices in Section 12.1 .  Nothing in this Agreement will affect the right of any party hereto to serve process in any other manner permitted by Applicable Law.
 
Section 12.6         Waiver of Jury Trial . EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
 
Section 12.7         Reversal of Payments .  To the extent the Borrower makes any payment to the Administrative Agent for the ratable benefit of the Lenders or the Administrative Agent receives any payment which payment or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, state or federal law, common law or equitable cause, then, to the extent of such payment repaid, the Obligations or part thereof intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been received by the Administrative Agent.
 

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Section 12.8         Injunctive Relief; Punitive Damages .
 
(a)            The Borrower recognizes that, in the event the Borrower fails to perform, observe or discharge any of its obligations or liabilities under this Agreement, any remedy of law may prove to be inadequate relief to the Lenders. Therefore, the Borrower agrees that the Lenders, at the Lenders’ option, shall be entitled to temporary and permanent injunctive relief in any such case without the necessity of proving actual damages.
 
(b)            The Administrative Agent, the Lenders and the Borrower hereby agree that no such Person shall have a remedy of special, indirect, punitive or consequential damages against any other party to a Loan Document and each such Person hereby waives any right or claim to special, indirect, punitive or consequential damages that they may now have or may arise in the future in connection with any dispute, whether such dispute is resolved through arbitration or judicially.
 
Section 12.9         Accounting Matters .   If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either the Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Borrower shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.
 
Section 12.10       Successors and Assigns; Participations .
 
(a)             Successors and Assigns Generally .  The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee in accordance with the provisions of paragraph (b) of this Section, (ii) by way of participation in accordance with the provisions of paragraph (d) of this Section or (iii) by way of pledge or assignment of a security interest subject to the restrictions of paragraph (f) of this Section (and any other attempted assignment or transfer by any party hereto shall be null and void).  Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in paragraph (d) of this Section and, to the extent expressly contemplated hereby, the Related Parties
 

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of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
 
(b)             Assignments by Lenders .  Any Lender may at any time assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it); provided that
 
  (i)            except in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and the Loans at the time owing to it or in the case of an assignment to a Lender or an Affiliate of a Lender, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date) shall not be less than $5,000,000, unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Borrower otherwise consent (each such consent not to be unreasonably withheld or delayed);
 
  (ii)            each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loans or the Commitment assigned;
 
  (iii)            any assignment must be approved (such approval not to be unreasonably withheld) by the Administrative Agent and the Borrower; provided that (a) no consent by the Borrower or Administrative Agent shall be required if the proposed assignee is itself a Lender with a Commitment or an Affiliate thereof (whether or not the proposed assignee would otherwise qualify as an Eligible Assignee); and (b) no consent by the Borrower shall be required if such assignment occurs during the continuance of an Event of Default; and
 
  (iv)            the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500 for each assignment, and the Eligible Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.
 
Subject to the acceptance and recording thereof by the Administrative Agent pursuant to paragraph (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the Eligible Assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its
 

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obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 3.8 , 3.9 , 3.10 , 3.11 and 12.3 with respect to facts and circumstances occurring prior to the effective date of such assignment.  Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this paragraph shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (d) of this Section.
 
(c)             Register .  The Administrative Agent, acting solely for this purpose as an agent of the Borrower, shall maintain at one of its offices in New York, New York (or such other office notified to the Lenders and the Borrower), a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “ Register ”).  The entries in the Register shall be conclusive, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary.  The Register shall be available for inspection by the Borrower and any Lender at any reasonable time and from time to time upon reasonable prior notice.
 
(d)             Participations .  Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “ Participant ”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement.
 
Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver or modification described in the first proviso to Section 12.2 that directly affects such Participant.  Subject to paragraph (e) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.8 , 3.9 , 3.10 and 3.11 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section.  No Participant shall be entitled to the benefits of Section 12.4 .
 

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(e)             Limitations upon Participant Rights .  A Participant shall not be entitled to receive any greater payment under Sections 3.10 and 3.11   than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower’s prior written consent.  A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 3.11 unless the Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with Section 3.11(e) as though it were a Lender.
 
(f)             Certain Pledges .  Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including without limitation any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
 
Section 12.11      Confidentiality .   Each of the Administrative Agent and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates and to its and its Affiliates’ respective directors, officers, employees and agents, including accountants, legal counsel and other advisors (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent requested by , or required to be disclosed to, any rating agency, or regulatory or similar authority (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by Applicable Laws or regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any remedies under this Agreement or under any other Loan Document (or any Hedging Agreement with a Lender or the Administrative Agent) or any action or proceeding relating to this Agreement or any other Loan Document (or any Hedging Agreement with a Lender or the Administrative Agent) or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to any purchasing Lender, proposed purchasing Lender, Participant or proposed Participant, (g) with the consent of the Borrower, (h) to Gold Sheets and other similar bank trade publications, such information to consist of deal terms and other information customarily found in such publications, or (i) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section or (y) becomes available to the Administrative Agent or any Lender on a nonconfidential basis from a source other than the Borrower or (j) to governmental regulatory authorities in connection with any regulatory examination of the Administrative Agent or any Lender or in accordance with the Administrative Agent’s or any Lender’s regulatory compliance policy if the Administrative Agent or such Lender deems necessary for the mitigation of claims by those authorities against the Administrative Agent or such Lender or any of its subsidiaries or affiliates.  For purposes of this Section, “Information” means all information received from the Borrower relating to the Borrower, its Subsidiaries, the Excluded Subsidiaries, the Existing Shareholders or any of their respective Affiliates or any of their respective businesses, other than any such information that is available to the
 

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Administrative Agent or any Lender on a nonconfidential basis prior to disclosure by the Borrower.  Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.
 
Section 12.12      Performance of Duties .  The Borrower’s obligations under this Agreement and each of the other Loan Documents shall be performed by the Borrower at its sole cost and expense.
 
Section 12.13     All Powers Coupled with Interest .  All powers of attorney and other authorizations granted to the Lenders, the Administrative Agent and any Persons designated by the Administrative Agent or any Lender pursuant to any provisions of this Agreement or any of the other Loan Documents shall be deemed coupled with an interest and shall be irrevocable so long as any of the Obligations remain unpaid or unsatisfied, any of the Commitments remain in effect or the Credit Facility has not been terminated.
 
Section 12.14      Survival of Indemnities .  Notwithstanding any termination of this Agreement, the indemnities to which the Administrative Agent and the Lenders are entitled under the provisions of this Article XII and any other provision of this Agreement and the other Loan Documents shall continue in full force and effect and shall protect the Administrative Agent and the Lenders against events arising after such termination as well as before.
 
Section 12.15      Titles and Captions .  Titles and captions of Articles, Sections and subsections in, and the table of contents of, this Agreement are for convenience only, and neither limit nor amplify the provisions of this Agreement.
 
Section 12.16      Severability of Provisions .  Any provision of this Agreement or any other Loan Document which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective only to the extent of such prohibition or unenforceability without invalidating the remainder of such provision or the remaining provisions hereof or thereof or affecting the validity or enforceability of such provision in any other jurisdiction.
 
Section 12.17      Counterparts .  This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and shall be binding upon all parties, their successors and assigns, and all of which taken together shall constitute one and the same agreement.
 
Section 12.18      Integration .  T his Agreement, together with the other Loan Documents, comprises the complete and integrated agreement of the parties on the subject matter hereof and thereof and supersedes all prior agreements, written or oral, on such subject matter.  In the event of any conflict between the provisions of this Agreement and those of any other Loan Document, the provisions of this Agreement shall control; provided that the inclusion of supplemental rights or remedies in favor of the Administrative Agent or the Lenders in any other Loan Document shall not be deemed a conflict with this Agreement.  Each Loan Document was drafted with the
 

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joint participation of the respective parties thereto and shall be construed neither against nor in favor of any party, but rather in accordance with the fair meaning thereof.
 
Section 12.19      Term of Agreement .  This Agreement shall remain in effect from the Closing Date through and including the date upon which all Obligations arising hereunder or under any other Loan Document shall have been indefeasibly and irrevocably paid and satisfied in full and all Commitments have been terminated.  No termination of this Agreement shall affect the rights and obligations of the parties hereto arising prior to such termination or in respect of any provision of this Agreement which survives such termination.
 
Section 12.20      Advice of Counsel, No Strict Construction .  Each of the parties represents to each other party hereto that it has discussed this Agreement with its counsel.  The parties hereto have participated jointly in the negotiation and drafting of this Agreement.  In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement.
 
Section 12.21      USA Patriot Act .  The Administrative Agent and each Lender hereby notifies the Borrower that pursuant to the requirements of the PATRIOT Act, it is required to obtain, verify and record information that identifies the Borrower, which information includes the name and address of each Borrower and other information that will allow such Lender to identify such Borrower in accordance with the PATRIOT Act .
 
Section 12.22      Inconsistencies with Other Documents; Independent Effect of Covenants .
 
(a)            In the event there is a conflict or inconsistency between this Agreement and any other Loan Document, the terms of this Agreement shall control; provided that, other than for purposes of Article X , any provision of the other Loan Documents which imposes additional burdens on the Borrower or its Subsidiaries or further restricts the rights of the Borrower or its Subsidiaries or gives the Administrative Agent or the Lenders additional rights shall not be deemed to be in conflict or inconsistent with this Agreement and shall be given full force and effect.
 
(b)            The Borrower expressly acknowledges and agrees that each covenant contained in Article VII , VIII , or IX hereof shall be given independent effect.  Accordingly, the Borrower shall not engage in any transaction or other act otherwise permitted under any covenant contained in Article VII , VIII , or IX if, before or after giving effect to such transaction or act, the Borrower shall or would be in breach of any other covenant contained in Article VII , VIII , or IX .
 
[Signature pages to follow]
 

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed under seal by their duly authorized officers, all as of the day and year first written above.
 

 
BLACKROCK, INC. , as Borrower
       
       
 
By:
/s/ Ann Marie Petach
   
Name:
Ann Marie Petach
   
Title:
Managing Director and Chief Financial Officer
       


CREDIT AGREEMENT
 
 
 
 

 
AGENTS AND LENDERS:
   
 
BARCLAYS BANK PLC , as Administrative Agent
       
       
 
By:
/s/ David Barton
   
Name:
David Barton
   
Title:
Director
       


CREDIT AGREEMENT
 
 
 


 
BARCLAYS BANK PLC , as Lender
       
       
 
By:
/s/ David Barton
   
Name:
David Barton
   
Title:
Director


 
CITICORP NORTH AMERICA, INC., as Lender
       
       
 
By:
/s/ Alex Duka
   
Name:
Alex Duka
   
Title:
Managing Director


 
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH , as Lender
       
       
 
By:
/s/ Jay Chall
   
Name:
Jay Chall
   
Title:
Director

 
By:
/s/ Mikhail Faybusovich
   
Name:
Mikhail Faybusovich
   
Title:
Vice President


 
BANC OF AMERICA BRIDGE, LLC , as Lender
       
       
 
By:
/s/ David H. Strickert
   
Name:
David H. Strickert
   
Title:
Senior Vice President

CREDIT AGREEMENT


 
 

Exhibit 10.3
 
 
EXECUTION COPY
 

 
 
REGISTRATION RIGHTS AGREEMENT
 
by and among
 
BLACKROCK, INC.,
 
BARCLAYS BANK PLC
 
and
 
BARCLAYS BR HOLDINGS S.À R.L.
 
Dated as of December 1, 2009


 
 
 


 
TABLE OF CONTENTS
 
 
Page

Section 1.
Definitions
1
     
Section 2.
Registration Under the Securities Act
5
     
Section 3.
Restrictions on Public Sale by the Company
11
     
Section 4.
Registration Procedures
11
     
Section 5.
Indemnification; Contribution
17
     
Section 6.
Miscellaneous
20



 
ii
 

REGISTRATION RIGHTS AGREEMENT (this “ Agreement ”), dated as of December 1, 2009, by and among BlackRock, Inc., a corporation organized under the laws of the State of Delaware (the “ Company ”), Barclays Bank PLC, a public limited company incorporated under the laws of England and Wales (“ Barclays ”), and Barclays BR Holdings S.à r.l., a société à responsabilité limitée organized under the laws of Luxembourg (“ BR Holdings ” and, together with Barclays, the “ Barclays Parties ”).
 
WHEREAS, the Company is party to a Stock Purchase Agreement by and among Barclays, Barclays PLC and the Company, dated as of June 16, 2009 (as amended, modified or supplemented from time to time in accordance with its terms, the “ Transaction Agreement ”);
 
WHEREAS, upon the Closing, as defined in the Transaction Agreement (the “ Closing ”), the Barclays Parties will receive shares of the Capital Stock (as defined herein) of the Company;
 
WHEREAS, the parties to this Agreement desire to set forth the rights of the Barclays Parties and the obligations of the Company with respect to the registration of Registrable Securities pursuant to the Securities Act (each as defined herein);
 
NOW THEREFORE, in consideration of the premises and the representations, warranties and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound hereby, the parties hereto agree as follows:
 
Section 1.
Definitions .
 
As used in this Agreement, the following terms shall have the following meanings:
 
“ Affiliate ” means, with respect to any Person, any other Person that directly, or indirectly through one or more intermediaries, controls, is controlled by or is under common control with, such specified Person; provided , however , that solely for purposes of this Agreement, notwithstanding anything to the contrary set forth herein, neither the Company nor any of its controlled Affiliates shall be deemed an Affiliate of any Barclays Party, Merrill or PNC by virtue of the beneficial ownership by any Barclays Party, Merrill or PNC, as applicable, of the Company’s Capital Stock, the election of Directors nominated by any Barclays Party, Merrill or PNC, as applicable to the Board, the election of any other Directors nominated by the Board or any other action taken by any Barclays Party, Merrill or PNC, as applicable in accordance with the terms and conditions of, and subject to the limitations and restrictions set forth on such Person in, this Agreement, the Stockholder Agreement among Barclays, BR Holdings and the Company to be entered into at the Closing (the “ Stockholder Agreement ”), the Second Amended and Restated Stockholder Agreement, dated as of February 27, 2009, among the Company, Merrill and Merrill Lynch Group, Inc., as amended, or the Amended and Restated Implementation and Stockholder Agreement, dated as of February 27, 2009, between the Company and PNC, as amended (and irrespective of the characteristics of the aforesaid relationships and actions under applicable law or accounting principles).
 
“ Board ” means the Board of Directors of the Company.
 

 
 
 

“ Barclays Representative ” means any Barclays Party, acting on its own behalf and as agent and representative of each other Holder.
 
 “ Capital Stock ” means, with respect to any Person at any time, any and all shares, interests, participations or other equivalents (however designated, whether voting or non-voting) of capital stock, partnership interests (whether general or limited) or equivalent ownership interests in or issued by such Person.
 
“ Company ” has the meaning set forth in the preamble and shall also include the Company’s successors.
 
“ Director ” means any member of the Board (other than any advisory, honorary or other non-voting member of the Board).
 
“ Exchange Act ” means the Securities Exchange Act of 1934, as amended from time to time.
 
“ Existing Registration Rights Agreement ” means the Registration Rights Agreement, dated as of September 29, 2006, by and among New BlackRock, Inc., Merrill and PNC.
 
“ FINRA ” means the Financial Industry Regulatory Authority, Inc.
 
“ Holder ” means each Barclays Party and any Affiliate of each Barclays Party which holds or to which Shares of  Common Stock or shares of Series D Preferred Stock or Series B Preferred Stock (as defined below) are transferred or otherwise acquired.
 
“ Incidental Registration ” means a registration required to be effected by the Company pursuant to Section 2(b).
 
“ Incidental Registration Statement ” means a registration statement of the Company, as provided in Section 2(b), which covers any of the Registrable Securities on an appropriate form in accordance with the Securities Act and all amendments and supplements to such registration statement, including post-effective amendments, in each case including the Prospectus contained therein, all exhibits thereto and all material incorporated by reference therein.
 
“ Merrill ” means Merrill Lynch & Co., Inc.
 
“ Person ” means any individual, limited or general partnership, limited liability company, corporation, trust, joint venture, association, joint stock company or unincorporated organization.
 
“ PNC ” means The PNC Financial Services Group, Inc.
 
“ Prospectus ” means the prospectus included in a Registration Statement, including any preliminary Prospectus, and any such Prospectus as amended or supplemented by any prospectus supplement with respect to the terms of the offering of any portion of the Registrable Securities and by all other amendments and supplements to such Prospectus, including post-effective amendments, and in each case all material incorporated by reference therein.
 

 
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“ Registrable Securities ” means, collectively, (i) the Shares of Common Stock owned by the Holders and the Shares of Common Stock acquired at any time by any such Holders in the future (excluding any Shares of Common Stock acquired by any Barclays Party or any Subsidiary of any Barclays Party in violation of the Stockholder Agreement, (ii) any stock or other securities into which or for which the Shares of Common Stock may hereafter be changed, converted or exchanged, including any Related Securities, including any Related Securities and (iii) any shares of Series D Participating Preferred Stock, par value $0.01 per share (the “ Series D Preferred ”), including any Related Securities and any shares of Series B Participating Preferred Stock, par value $0.01 per share (the “ Series B Preferred ”), including any Related Securities, (iv) any other securities issued or distributed in respect of the shares described in clauses (ii) and (iii) by way of stock dividend or stock split or in connection with a combination of shares, recapitalization, reorganization, merger, consolidation or otherwise, and (v) any other securities into which or for which shares of any other successor securities are received in respect of any of the foregoing (i) through (v); provided that in the event that any Registrable Securities (as defined without giving effect to this proviso) are being registered pursuant hereto, the Holder may include in such registration (subject to the limitations of this Agreement otherwise applicable to the inclusion of Registrable Securities) any Shares of Common Stock or securities acquired in respect thereof thereafter acquired by such Holder (excluding any Shares of Common Stock acquired by any Barclays Party or any Subsidiary of any Barclays Party in violation of the Stockholder Agreement), which shall also be deemed to be “ Shares of Common Stock ,” and accordingly Registrable Securities, for purposes of such registration; provided , further , none of the foregoing will be Registrable Securities until the termination or waiver by the Company of the period set forth in Section 3.2(a) of the Stockholder Agreement.  Registrable Securities will cease to be Registrable Securities when (i) a Registration Statement covering such Registrable Securities has become effective under the Securities Act and they have been offered and sold pursuant to such effective Registration Statement, (ii) such Registrable Securities are transferred pursuant to Rule 144 (or any similar provision then in force) under the Securities Act or otherwise transferred in a manner that results in the security being so transferred being freely transferable thereafter, (iii) from and after such time that the Holder holds less than 5% of the Capital Stock of the Company, (iv) such Registrable Securities shall have been otherwise transferred to a person who is not a Holder (other than as contemplated by Section 6(c) hereof), or (v) such Registrable Securities shall have ceased to be outstanding.
 
“ Registration Expenses ” means all expenses incident to the Company’s performance of or compliance with this Agreement, including, without limitation, (i) all registration, listing, qualification and filing fees (including FINRA filing fees), (ii) fees and disbursements of counsel for the Company, (iii) accounting fees, (iv) blue sky fees and expenses (including counsel fees in connection with the preparation of a Blue Sky Memorandum and legal investment survey and FINRA filings), (v) all printing, distributing, mailing and delivery expenses for any Registration Statement, any Prospectus, transmittal letters, securities certificates and other documents relating to the performance of and compliance with this Agreement, (vi) the expenses incurred in connection with making road show presentations and holding meetings with potential investors to facilitate the distribution, (vii) underwriter fees, excluding discounts and commissions, and any other expenses which are customarily borne by the issuer or seller of securities in a public equity offering and (viii) all internal expenses of the Company (including all salaries and expenses of officers and employees performing legal or accounting duties); provided , however , Registration Expenses shall not include any Selling Expenses.
 

 
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“ Registration Statement ” means any registration statement of the Company, including a Shelf Registration Statement, which covers any Registrable Securities and all amendments and supplements to any such Registration Statement, including post-effective amendments, in each case including the Prospectus contained therein, all exhibits thereto and all material incorporated by reference therein.
 
“ Related Securities ” means any securities of the Company similar or identical to any of the Registrable Securities including, without limitation, Shares of Common Stock and all options, warrants, rights and other securities convertible into, or exchangeable or exercisable for Shares of Common Stock (other than any of the foregoing to be offered or sold to officers, directors or employees as compensation), excluding the 2.625% Convertible Debentures Due 2035 issued on February 23, 2005 by BlackRock (the “ Convertible Debentures ”).
 
“ Required Registration ” means a registration required to be effected pursuant to Section 2(a).
 
“ Required Registration Statement ” means a Registration Statement which covers the Registrable Securities requested to be included therein pursuant to the provisions of Section 2(a) on an appropriate form (in accordance with Section 4(a) hereof) pursuant to the Securities Act, and which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof, and all amendments and supplements to such Registration Statement, including post-effective amendments, in each case including the Prospectus contained therein, all exhibits thereto and all material incorporated by reference therein.
 
“ SEC ” means the Securities and Exchange Commission.
 
“ Selling Expenses ” means underwriting discounts, selling commissions and stock transfer taxes applicable to the shares registered by the Holders.
 
“ Securities Act ” means the Securities Act of 1933, as amended from time to time.
 
“ Shares of Common Stock ” means the shares of Common Stock.
 
“ Shelf Registration Statement ” means a registration statement pursuant to SEC Rule 415 under the Securities Act, or any successor provision.
 
“ Significant Stockholder ” means, at any time of determination, any Person other than any Barclays Party and their Affiliates, Merrill and its Affiliates and PNC and its Affiliates that beneficially owns 20 percent or more of the Total Voting Power of the Voting Securities of the Company issued and outstanding at that time.
 
“ Subsidiary ” means, with respect to any Person, any corporation or other organization, whether incorporated or unincorporated, (i) of which such Person or any other Subsidiary of such Person is a general partner (excluding partnerships the general partner interests of which held by such Person or any Subsidiary of such Person do not have a majority of the voting or similar interests in such partnership), or (ii) at least a majority of the securities or other interests of which having by their terms ordinary voting power to elect a majority of the board of directors or
 

 
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others performing similar functions with respect to such corporation or other organization is directly or indirectly owned or controlled by such Person or by any one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries.
 
“ Subsidiary Holder ” means each Subsidiary of any Barclays Party that is a Holder.
 
“ Total Voting Power ” means the total number of votes entitled to be cast by the holders of the outstanding Capital Stock of the Company and any other securities entitled, in the ordinary course, to vote on matters put before the holders of the Capital Stock of the Company generally.
 
“ Underwriter ” has the meaning set forth in Section 5(a).
 
“ Underwritten Offering ” means a sale of securities of the Company to an Underwriter or Underwriters for reoffering to the public.
 
“ Voting Securities ” means, at any time, shares of any class of Capital Stock or other securities or interests of a Person which are then entitled to vote generally, and not solely upon the occurrence and during the continuation of certain specified events, in the election of directors or Persons performing a similar function with respect to such Person, and any securities convertible into or exercisable or exchangeable at the option of the holder thereof for such shares of Capital Stock.
 
“ WKSI ” means a well-known seasoned issuer as defined in Rule 405 under the Securities Act.
 
Section 2.
Registration Under the Securities Act .
 
(a)         Required Registration .
 
(i)            Right to Require Registration .  At any time following the Closing (subject to the Stockholder Agreement, and subject to the penultimate paragraph of this Section 2(a)(i), the Barclays Representative shall have the right to request in writing (such initial written request, a “ Request ”) (which Request shall specify the number and type of Registrable Securities intended to be disposed of, the intended method of distribution thereof and whether the Registration Statement should be a Shelf Registration Statement) that the Company register Registrable Securities of the Barclays Holders by filing with the SEC a Required Registration Statement.  Upon the receipt of such a Request, the Company will, by the tenth (10 th ) business day thereafter, give written notice of such requested registration to all Holders of Registrable Securities, and, not later than the 45 th calendar day after the receipt of such a Request by the Company, the Company will cause to be filed with the SEC a Required Registration Statement covering the Registrable Securities which the Company has been so requested to register in such Request (the “ Request Securities ”) and all other Registrable Securities (the “ Additional Requested Securities ”) which the Company has been requested to register by Holders thereof by written notice given to the Company within ten (10) calendar days after the giving of such written notice by the Company.  The Required Registration Statement shall be a Shelf Registration Statement if required by the Holder and will provide for the
 

 
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registration under the Securities Act of the Registrable Securities which the Company has been so requested to register by all such Holders, subject to the limitations of this Section, to the extent necessary to permit the disposition of such Registrable Securities in accordance with the intended methods of distribution thereof specified in such Request or further requests, and, unless such registration statement is automatically effective upon filing with the SEC, the Company shall use its reasonable best efforts to have such Required Registration Statement declared effective by the SEC as soon as practicable thereafter (but in no event later than the earlier of the 180 th calendar day after the receipt of such a Request or three business days after the Company receives notice from the SEC that it does not object to the effectiveness of such Required Registration Statement) and to keep such Required Registration Statement continuously effective for a period of at least 60 calendar days (or until all of the Registrable Securities covered by such Required Registration Statement have been sold pursuant thereto (whichever is shorter in the case of an Underwritten Offering and whichever is longer in the case of a Shelf Registration), or, in the case of an Underwritten Offering, such period as the Underwriters shall reasonably require) following the date on which such Required Registration Statement becomes effective, including, if necessary, by filing with the SEC a post-effective amendment or a supplement to the Required Registration Statement or the related Prospectus or any document incorporated therein by reference or by filing any other required document or otherwise supplementing or amending the Required Registration Statement, if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Required Registration Statement or by the Securities Act, the Exchange Act, any state securities or blue sky laws or any rules and regulations thereunder.
 
Pursuant to this Section 2(a), the Barclays Representative may Request, with respect to the Registrable Securities held by the Barclays Holders, the Company to effect a total of two Required Registrations or underwritten takedowns under a Shelf Registration Statement in any twelve month period provided that any Request for Required Registrations or underwritten takedowns under a Shelf Registration Statement must be for Registrable Securities with an aggregate dollar value of $150,000,000 or greater.  A Request which does not result in an effective registration under the Securities Act, a Withdrawn Request or a Withdrawn Required Registration, in each case shall not be counted as a Request for purposes of the limits in the preceding sentence.
 
A Request may be withdrawn prior to the filing of the Required Registration Statement by the Holder(s) which made such Request (a “ Withdrawn Request ”) and a Required Registration Statement may be withdrawn prior to the effectiveness thereof (if applicable) by the Holders of a majority of the Registrable Securities included therein (a “ Withdrawn Required Registration ”), and, in either such event, such withdrawal shall not be treated as a Required Registration or a Request which shall have been effected pursuant to the immediately preceding paragraph.
 
No Holder shall, without the Company’s consent, be entitled to deliver a Request for a Required Registration if less than 90 calendar days have elapsed since (A) the effective date of a prior Required Registration Statement, (B) in the case of a Required
 

 
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Registration which is effected other than by means of an Underwritten Offering, the sale by any Holder of their Registrable Securities pursuant thereto, (C) the date of withdrawal of a Withdrawn Required Registration or (D) the pricing date of any underwritten offering effected by the Company.
 
Notwithstanding the foregoing, the Company may delay the filing or the effectiveness of any Required Registration Statement (a “ Blackout Period ”) Requested by one or more Holders for so long as (i) the chief executive officer of the Company determines in good faith in consultation with counsel that such registration would require premature disclosure of non-public information the disclosure of which would be materially adverse to the Company; provided , however , that the duration of any such Blackout Period shall not exceed 60 days, and that the aggregate number of days included in all such Blackout Periods during any consecutive 12 months shall not exceed 120 days or (ii) as may be required under the Existing Registration Rights Agreement; provided that the periods under clause (i) and (ii) shall not in the aggregate exceed 180 days in any consecutive 12 months; and provided , further, that the Blackout Period in clause (ii) shall not be counted toward such aggregate period if the Holders shall have been able to include Request Securities with an aggregate value of $300 million or more in such registration.
 
The registration rights granted pursuant to the provisions of this Section 2(a) shall be in addition to the registration rights granted pursuant to the other provisions of this Section 2.
 
(ii)            Priority in Required Registrations .  If a Required Registration involves an Underwritten Offering, and the sole Underwriter or the lead managing Underwriter, as the case may be, of such Underwritten Offering shall advise the Company in writing on or before the date five (5) days prior to the date then scheduled for such offering that, in its opinion, the amount of Registrable Securities requested to be included in such Required Registration exceeds the amount which can be reasonably expected to be sold in such offering without adversely affecting the success of the distribution of the Securities being offered, the Company will include in such Required Registration only the amount of Registrable Securities that the Company is so advised can be sold in such offering; provided , however , that the Company shall be required to include in such Required Registration the amount of securities (including Registrable Securities) requested to be included in such registration that the Company is so advised can be sold in (or during the time of) such offering, allocated, if necessary, pro rata among the holders (including the Holders) thereof requesting such registration on the basis of the percentage of the securities (including Registrable Securities) beneficially owned at the time that each holder (including Holders) requesting inclusion of their securities desires to register in such registration; provided , however , that in the event the Company determines, by virtue of this paragraph, not to include in any such registration all of the Registrable Securities of any Holder requested to be included in such registration, such Holder may, upon written notice to the Company given within 3 days of the time such Holder first is notified of such matter, reduce the amount of Registrable Securities it desires to have included in such registration, whereupon only the Registrable Securities,
 

 
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if any, it desires to have included will be so included and the amount of Registrable Securities which each Holder is entitled to include in such registration shall be recalculated utilizing the reduced total number of Registrable Securities to be included in such registration. If any Holder’s Request Securities are reduced such that the aggregate dollar value of the Shares of Common Stock or other securities of all Holders included in such Underwritten Offering is less than $750 million or the securities included at the request of a Person (other than a Holder) represent 20% or more of the aggregate value of all the securities included in such Underwritten Offering, then such offering of securities shall not be deemed to count against the number of Required Registrations to which such Holder is entitled.
 
(b)         Incidental Registration .
 
(i)            Right to Include Registrable Securities .  If at any time the Company proposes to register any Related Securities under the Securities Act (other than (A) any registration of public sales or distributions solely by and for the account of the Company of securities issued (x) pursuant to any employee benefit or similar plan, including employee stock and stock option plus, or any dividend reinvestment plan or (y) in any acquisition by the Company, (B) pursuant to Section 2(a) hereof, or (C) any registration of the Company’s Convertible Debentures and any securities related thereto or convertible or exchangeable therefor), either in connection with a primary offering for cash for the account of the Company or a secondary offering or a combination thereof, the Company will, each time it intends to effect such a registration, give written notice to all Holders of Registrable Securities at least fifteen (15) business days prior to the anticipated filing date of a Registration Statement with the SEC pertaining thereto, informing such Holders of its intent to file such Registration Statement and of the Holders’ rights to request the registration of the Registrable Securities held by the Holders under this Section 2(b) (the “ Company Notice ”); provided , that if in the reasonable opinion of the Company such fifteen business day period would materially interfere with the ability of the Company effect a registration and issue and sell securities pursuant to such registration, such period may be reduced to a period not less than ten business days to be reasonably determined by the Company.  Upon the written request of any Holder made within 7 business days after any such Company Notice is given (which request shall specify the Registrable Securities intended to be disposed of by such Holder and, unless the applicable registration is intended to effect a primary offering of Shares of Common Stock for cash for the account of the Company, the intended method of distribution thereof), the Company will use its reasonable best efforts to effect the registration under the Securities Act of all Registrable Securities which the Company has been so requested to register by such Holders to the extent required to permit the disposition (in accordance with the intended methods of distribution thereof) of the Registrable Securities so requested to be registered, including, if necessary, by filing with the SEC a post-effective amendment or a supplement to the Incidental Registration Statement or the related Prospectus or any document incorporated therein by reference or by filing any other required document or otherwise supplementing or amending the Incidental Registration Statement, if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Incidental Registration
 

 
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Statement by the Securities Act, any state securities or blue sky laws, or any rules and regulations thereunder; provided , however , that if, at any time after giving written notice of its intention to register any securities and prior to the effective date of the Incidental Registration Statement filed in connection with such registration, the Company shall determine for any reason not to register or to delay registration of such securities, the Company may, at its election, give written notice of such determination to each Holder of Registrable Securities and, thereupon, (A) in the case of a determination not to register, the Company shall be relieved of its obligation to register any Registrable Securities in connection with such registration (but not from its obligation to pay the Registration Expenses incurred in connection therewith) and (B) in the case of a determination to delay such registration, the Company shall be permitted to delay registration of any Registrable Securities requested to be included in such Incidental Registration Statement for the same period as the delay in registering such other securities.
 
The registration rights granted pursuant to the provisions of this Section 2(b) shall be in addition to the registration rights granted pursuant to the other provisions of this Section 2, and no registration effected under this Section 2(b) shall relieve the Company of its obligations to effect a Required Registration under Section 2(a), other than as set forth in the fourth paragraph in Section 2(a)(i).
 
(ii)            Priority in Incidental Registrations .  If a registration pursuant to this Section 2(b) involves an Underwritten Offering of the securities so being registered, whether or not for sale for the account of the Company, and the sole Underwriter or the lead managing Underwriter, as the case may be, of such Underwritten Offering shall advise the Company in writing (with a copy to each Holder of Registrable Securities requesting registration) on or before the date five (5) days prior to the date then scheduled for such offering that, in its opinion, the amount of securities (including Registrable Securities) requested to be included in such registration exceeds the amount which can be reasonably expected to be sold in (or during the time of) such offering without adversely affecting the success of the distribution of the securities being offered, then the Company will include in such registration, (x) if such registration is pursuant to the Existing Registration Rights Agreement, then such shares as shall be required to be included pursuant to Section 2(a)(ii) thereof, and (y) for all other registrations, first , all the securities desired to be sold by the Company pursuant to such Registration Statement without reference to the incidental registration rights of any holder (including Holders), to the extent such offering or Registration Statement has been initiated by the Company for a primary offering of its securities and not pursuant to the demand of another holder of Related Securities, and second , the amount of other securities (including Registrable Securities) requested to be included in such registration that the Company is so advised can be sold in (or during the time of) such offering, allocated, if necessary, pro rata among the holders (including the Holders) thereof requesting such registration on the basis of the percentage of the securities (including Registrable Securities) beneficially owned at the time that each holder (including Holders) requesting inclusion of their securities desires to register in such registration; provided , however , that in the event the Company determines, by virtue of this paragraph, not to include in any such registration all of the Registrable Securities of any Holder requested to be included in such
 

 
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registration, such Holder may, upon written notice to the Company given within 3 days of the time such Holder first is notified of such matter, reduce the amount of Registrable Securities it desires to have included in such registration, whereupon only the Registrable Securities, if any, it desires to have included will be so included and the amount of Registrable Securities which each Holder is entitled to include in such registration shall be recalculated utilizing the reduced total number of Registrable Securities to be included in such registration.
 
(c)         Expenses .  Subject to the provisions of Section 3.2(d) of the Stockholder Agreement, the Company agrees to pay all Registration Expenses in connection with each registration effected in accordance with Section 2 hereof.  All Selling Expenses relating to securities registered on behalf of Holders shall be borne by the Holders of shares included in such registration, other selling stockholders and the Company pro rata on the basis of the percentage of Shares of Common Stock or other securities so registered by each such party, except that the Company need not contribute to fees and disbursements of counsel for the Holders and other selling stockholders.
 
(d)         Effective Registration Statement; Suspension .  Subject to the third paragraph of Section 2(a)(i), a Registration Statement pursuant to Section 2(a) will not be deemed to have become effective (and the related registration will not be deemed to have been effected or requested) unless it has been declared effective by the SEC prior to a request by the Holders of a majority of the Registrable Securities included in such registration that such Registration Statement be withdrawn; provided , however , that if, after it has been declared effective, the offering of any Registrable Securities pursuant to such Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective and the related registration will not be deemed to have been effected or requested pursuant to this Agreement.
 
Any period during which the Company fails to keep any Required Registration Statement effective and usable for resale of Registrable Securities shall be referred to as a “ Suspension Period .” A Suspension Period shall (a) commence on and include the earlier of the date that (i) the Company gives notice or (ii) a Holder is advised by counsel or the SEC, in either case, that a Required Registration Statement is no longer effective or usable for resale of Registrable Securities and (b) end on and including the date when each Holder of Registrable Securities covered by such Required Registration Statement either receives copies of the supplemented or amended Prospectus contemplated by Section 4(j) or is advised in writing by the Company (having a reasonable basis to so advise) that the use of the Prospectus may be resumed.  In the event of one or more Suspension Periods, the applicable time period for keeping the Registration Statement effective referenced in the last sentence of the first paragraph of Section 2(a)(i) shall be extended by the number of days included in each Suspension Period, and, in the event any Suspension Period occurs sooner than 30 days after the end of the previous Suspension Period or 30 days after the initial effectiveness of any Required Registration Statement, none of the days between such Suspension Periods (as the case may be) or prior to such Suspension Period shall be included in computing such applicable time period.
 

 
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(e)         Selection of Underwriters .  At any time or from time to time, the Holders of at least 25% of the Registrable Securities covered by a Required Registration Statement may elect to have such Registrable Securities sold in an Underwritten Offering and may select the investment banker or investment bankers and manager or managers that will serve as lead and co-managing Underwriters with respect to the offering of such Registrable Securities, subject to the consent of the Company which shall not be unreasonably withheld.  If more than one Holder is the Holder of more than 25% of the Registrable Securities covered by a Required Registration Statement, then such selection of investment bankers or managers shall be made by the Holder that has the greatest number of Registrable Securities included in such Registration Statement.  In addition to the foregoing, for so long as the Merrill or its Affiliates hold 20% of the outstanding Shares of Common Stock of the Company on an as converted basis in the aggregate, Merrill shall be entitled to direct that Merrill, Lynch, Pierce, Fenner & Smith or another Subsidiary of Merrill be appointed as co-lead or co-managing Underwriter in respect of any Underwritten Offering in which Merrill requests to include Related Shares contemplated by this Agreement.  No Holder may participate in any Underwritten Offering hereunder unless such Holder (a) agrees to sell such Holder’s securities on the basis provided in any underwriting arrangements and (b) completes and executes all questionnaires, powers of attorney, custody agreements, indemnities, underwriting agreements and other documents required under the terms of such Underwritten Offering.
 
(f)         Equal Future Rights .  Should the Company grant any new registration rights to any Significant Stockholder or any other Person, or amend or modify the registration rights of any Person in such a way to make such registration rights more favorable to one Person than to another Person, the registration rights granted under this Agreement shall be automatically amended so as to be not less favorable to any Holder than those granted to such Significant Stockholder or other Person.
 
Section 3.
Restrictions on Public Sale by the Company .
 
If requested by the sole Underwriter or lead managing Underwriter(s) in any Underwritten Offering, the Company agrees not to effect any public sale or distribution (other than, in the case of the Company, in connection with (a) any merger, acquisition or similar transaction that involves the public offering of securities, (b) public sales or distributions solely by and for the account of the Company of securities issued pursuant to any employee benefit or similar plan, including employee stock and stock option plans, (c) any dividend reinvestment plan) or (d) any registration required pursuant to the Existing Registration Rights Agreement, of any securities during the period commencing on the date the Company receives a Request from any Holder and continuing until 90 days after the commencement of an Underwritten Offering (or for such shorter period as the sole or lead managing Underwriter shall request) unless earlier terminated by the sole Underwriter or lead managing Underwriter(s) in such Underwritten Offering.
 
Section 4.
Registration Procedures .
 
In connection with the obligations of the Company pursuant to Section 2, the Company shall use its reasonable best efforts to effect or cause to be effected the registration of the
 

 
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Registrable Securities under the Securities Act to permit the sale of such Registrable Securities by the Holders in accordance with their intended method of distribution, and the Company shall:
 
(a)         (i) prepare and file a Registration Statement with the SEC which (x) shall be on Form S-3 (or any successor to such form), if available, and otherwise on Form S-1, (y) shall be available for the sale or exchange of the Registrable Securities in accordance with the intended method or methods of distribution by the selling Holders thereof and (z) shall comply as to form with the requirements of the applicable form and include all financial statements required by the SEC to be filed therewith and all other information reasonably requested by the lead managing Underwriter or sole Underwriter, if applicable, to be included therein, (ii) unless such Registration Statement is automatically effective upon filing with the SEC, use its reasonable best efforts to cause such Registration Statement to become effective and remain effective in accordance with Section 2, (iii) if the Company is eligible as a WKSI as of the applicable time, utilize the automatic shelf registration process under Rule 415 and Rule 462 under the Securities Act, (iv) not take any action that would cause a Registration Statement to contain a material misstatement or omission or to be not effective and usable for resale of Registrable Securities during the period that such Registration Statement is required to be effective and usable, (v) use its reasonable best efforts to cause each Registration Statement and the related Prospectus and any amendment or supplement thereto, as of the effective date of such Registration Statement, amendment or supplement to comply in all material respects with any requirements of the Securities Act and the rules and regulations of the SEC and (vi) cause each Registration Statement and the related Prospectus and any amendment or supplement thereto not to contain any untrue statement of a material fact required to be stated therein or necessary to make the statements therein not misleading during the period that such Registration Statement is required to be effective and usable;
 
(b)        subject to paragraph (j) of this Section 4, prepare and file with the SEC such amendments and post-effective amendments to each such Registration Statement, as may be necessary to keep such Registration Statement effective for the applicable period; cause each such Prospectus to be supplemented by any required prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by each Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the selling Holders thereof, as set forth in such registration statement;
 
(c)        furnish to each Holder of Registrable Securities and to each Underwriter of an Underwritten Offering of Registrable Securities, if any, without charge, as many copies of each Prospectus, including each preliminary Prospectus, and any amendment or supplement thereto and such other documents as such Holder or Underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities; the Company hereby consents to the use of the Prospectus, including each preliminary Prospectus, by each Holder of Registrable Securities and each Underwriter of an Underwritten Offering of Registrable Securities covered by the Prospectus or the preliminary Prospectus (and Holders hereby agreeing not to make a broad public dissemination of a form of preliminary Prospectus which is designed
 

 
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to be a “quiet filing” without the Company’s consent, such consent to not be withheld unreasonably);
 
(d)        (i) use its reasonable best efforts to register or qualify the Registrable Securities, no later than the time the applicable Registration Statement is declared effective by the SEC or becomes effective, under all applicable state securities or “blue sky” laws of such jurisdictions as each Underwriter, if any, or any Holder of Registrable Securities covered by a Registration Statement, shall reasonably request; (ii) use its reasonable best efforts to keep each such registration or qualification effective during the period such Registration Statement is required to be kept effective; and (iii) do any and all other acts and things which may be reasonably necessary or advisable to enable each such Underwriter, if any, and Holder to consummate the disposition in each such jurisdiction of such Registrable Securities owned by such Underwriter or Holder; provided , however , that the Company shall not be obligated to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so otherwise required to be qualified or to consent to be subject to general service of process (other than service of process in connection with such registration or qualification or any sale of Registrable Securities in connection therewith) in any such jurisdiction;
 
(e)        notify each Holder of Registrable Securities promptly, and, if requested by such Holder, confirm such advice in writing, (i) when a Registration Statement has become effective and when any post-effective amendments and supplements thereto become effective, (ii) of the issuance by the SEC or any state securities authority of any stop order, injunction or other order or requirement suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose, (iii) if, between the effective date of a Registration Statement and the closing of any sale of securities covered thereby pursuant to any agreement to which the Company is a party, the representations and warranties of the Company contained in such agreement cease to be true and correct in all material respects or if the Company receives any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation of any proceeding for such purpose and (iv) of the happening of any event during the period a Registration Statement is effective as a result of which such Registration Statement or the related Prospectus would contain any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they were made not misleading;
 
(f)         furnish counsel for each such Underwriter, if any, and for the Holders of Registrable Securities copies of any request by the SEC or any state securities authority for amendments or supplements to a Registration Statement and Prospectus or for additional information;
 
(g)        use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness or qualification of a Registration Statement or suspending or preventing the use of any related Prospectus at the earliest possible time;
 

 
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(h)        upon re quest, furnish to the sole Underwriter or lead managing Underwriter of an Underwritten Offering of Registrable Securities, if any, without charge, at least one signed copy of each Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits; and furnish to each Holder of Registrable Securities, without charge, at least one conformed copy of each Registration Statement and any post-effective amendment thereto (without documents incorporated therein by reference or exhibits thereto, unless requested);
 
(i)         cooperate with the selling Holders of Registrable Securities and the sole Underwriter or lead managing Underwriter of an Underwritten Offering of Registrable Securities, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations (consistent with the provisions of the governing documents thereof) and registered in such names as the selling Holders or the sole Underwriter or lead managing Underwriter of an Underwritten Offering of Registrable Securities, if any, may reasonably request at least three business days prior to any sale of Registrable Securities;
 
(j)         upon the occurrence of any event contemplated by paragraph (e)(iv) of this Section, use its reasonable best efforts to promptly prepare a supplement or post-effective amendment to a Registration Statement or the related Prospectus, or any document incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, such Prospectus will not contain any untrue statement of a material fact, or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
 
(k)        enter into customary agreements (including, in the case of an Underwritten Offering, underwriting agreements in customary form, and including provisions with respect to indemnification and contribution in customary form and materially consistent with the provisions relating to indemnification and contribution contained herein) and take all other customary and appropriate actions in order to expedite or facilitate the disposition of such Registrable Securities and in connection therewith:
 
(1)           in connection with an Underwritten Offering, make such representations and warranties to the Holders of such Registrable Securities and the Underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in similar underwritten offerings;
 
(2)           in connection with an Underwritten Offering, obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the lead managing Underwriter, if any, and the Barclays Representative, as applicable, addressed to each selling Holder and the Underwriters, if any, covering the matters customarily covered in opinions requested in
 

 
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sales of securities or underwritten offerings and such other matters as may be reasonably requested by such Holders and Underwriters;
 
(3)           in connection with an Underwritten Offering, obtain comfort letters and updates thereof from the Company’s independent certified public accountants addressed to the selling Holders of Registrable Securities, if permissible, and the Underwriters, if any, which letters shall be customary in form and shall cover matters of the type customarily covered in comfort letters to underwriters in connection with primary underwritten offerings;
 
(4)           if the selling Holder is a Subsidiary Holder then, to the extent requested and customary for the relevant transaction, enter into a securities sales agreement with a Barclays Party, on behalf of itself and all other Subsidiary Holders of it or any other Barclays Party that are selling Holders, relating to the registration and providing for, among other things, the appointment of the Barclays Representative or such Subsidiary of a Barclays Party that a Barclays Party shall specify for the purpose of soliciting purchases of Registrable Securities, which agreement shall be customary in form, substance and scope and shall contain customary representations, warranties and covenants; and
 
(5)           deliver such customary documents and certificates as may be reasonably requested by the Barclays Representative or by the managing Underwriters, if any.
 
The above shall be done (i) at the effectiveness of such Registration Statement (and each post-effective amendment thereto) in connection with any registration required hereunder, (ii) at the time of any sales of any securities under such Registration Statement and (ii) at each closing under any underwriting or similar agreement, as and to the extent required thereunder;
 
(l)         make available for inspection by representatives of the Holders of the Registrable Securities and any Underwriters participating in any disposition pursuant to a Registration Statement and any counsel or accountant retained by such Holders or Underwriters, all relevant financial and other records, pertinent corporate documents and properties of the Company and cause the respective officers, directors and employees of the Company to supply all information reasonably requested by any such representative, Underwriter, counsel or accountant in connection with a Registration Statement;
 
(m)       (i) within a reasonable time prior to the filing of any Registration Statement, any Prospectus, any amendment to a Registration Statement or amendment or supplement to a Prospectus, provide copies of such document to the Holders of Registrable Securities and to counsel to such Holders and to the Underwriter or Underwriters of an Underwritten Offering of Registrable Securities, if any; fairly consider such reasonable changes in any such document prior to or after the filing thereof as the counsel to the Holders or the Underwriter or the Underwriters may request and not file any such document in a form to which the Barclays
 

 
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Representative or any Underwriter shall reasonably object; and make such of the representatives of the Company as shall be reasonably requested by the Holders of Registrable Securities being registered or any Underwriter available for discussion of such document;
 
(ii)           within a reasonable time prior to the filing of any document which is to be incorporated by reference into a Registration Statement or a Prospectus, provide copies of such document to counsel for the Holders; fairly consider such reasonable changes in such document prior to or after the filing thereof as counsel for such Holders or such Underwriter shall request; and make such of the representatives of the Company as shall be reasonably requested by such counsel available for discussion of such document;
 
(n)         cause all Registrable Securities to be listed on the New York Stock Exchange and any securities exchange on which securities of the same class issued by the Company are then so qualified or listed if so requested by the Barclays Representative or if so requested by the Underwriter or Underwriters of an Underwritten Offering of Registrable Securities, if any, and provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities;
 
(o)        otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, including making available to its security holders an earnings statement covering at least 12 months which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
 
(p)        cooperate and assist in any filings required to be made with the FINRA and in the performance of any due diligence investigation by any Underwriter in an Underwritten Offering; and
 
(q)        use its reasonable best efforts to facilitate the distribution and sale of any Registrable Securities to be offered pursuant to this Agreement, including without limitation by making road show presentations, holding meetings with potential investors and taking such other actions as shall be requested by the Barclays Representative or the lead managing Underwriter of an Underwritten Offering.
 
Each selling Holder of Registrable Securities as to which any registration is being effected pursuant to this Agreement agrees, as a condition to the registration obligations with respect to such Holder provided herein, to furnish to the Company such information regarding such Holder required to be included in the Registration Statement, the ownership of Registrable Securities by such Holder and the proposed distribution by such Holder of such Registrable Securities as the Company may from time to time reasonably request in writing.
 
Each Holder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in paragraph (e)(iv) of this Section, such Holder will forthwith discontinue disposition of Registrable Securities pursuant to the affected Registration Statement
 

 
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until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by paragraph (j) of this Section and, if so directed by the Company, such Holder will deliver to the Company (at the expense of the Company), all copies in its possession, other than permanent file copies then in such Holder’s possession, of the Prospectus covering such Registrable Securities which was current at the time of receipt of such notice.
 
Section 5.
Indemnification; Contribution .
 
(a)         Indemnification by the Company .  The Company agrees to indemnify and hold harmless each Person who participates as an underwriter (any such Person being an “ Underwriter ”), each Holder and their respective partners, directors, officers and employees and each Person, if any, who controls any Holder or Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act as follows:
 
(i)           against any and all losses, liabilities, claims, damages, judgments and reasonable expenses (“ Damages ”) whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement pursuant to which Registrable Securities were registered under the Securities Act, including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in any Prospectus, including all documents incorporated therein by reference, or any “issuer free writing prospectus” (as defined in Securities Act Rule 433), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
 
(ii)           against any and all Damages whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, investigation or proceeding by any governmental agency or body, commenced or threatened, or of any other claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, if such settlement is effected with the written consent of the Company; and
 
(iii)           against any and all reasonable expense whatsoever, as incurred (including fees and disbursements of counsel), incurred in investigating, preparing or defending against any litigation, investigation or proceeding by any governmental agency or body, commenced or threatened, in each case whether or not such Person is a party, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above;
 

 
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provided , however , that this indemnity agreement does not apply to any Holder or Underwriter with respect to any Damages to the extent (i) arising out of any untrue statement or alleged untrue statement of a material fact contained in any Prospectus, or the omission or alleged omission therefrom of a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, in any such case made in reliance upon and in conformity with written information furnished to the Company by such Holder or Underwriter expressly for use in a Registration Statement (or any amendment thereto) or any Prospectus (or any amendment or supplement thereto) or (ii) arising out of or based upon offers or sales effected directly by any Holder or Underwriter “by means of” (as defined in Securities Act Rule 159A) a “free writing prospectus” (as defined in Securities Act Rule 405) that was not issued by or authorized in writing by the Company.  In addition to the foregoing, the Company shall indemnify each Holder and its respective partners, directors, officers and employees and each Person, if any, who controls any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to the extent the indemnification provided by the Company to any Underwriter in connection with a Registration Statements exceeds the indemnity provided hereunder.
 
(b)         Indemnification by Holders .  Each Barclays Party, for itself and jointly and severally for and on behalf of each of its Subsidiary Holders that may be a selling Holder hereunder, agrees to indemnify and hold harmless the Company, each Underwriter and the other selling Holders, and each of their respective partners, directors, officers and employees (including each officer of the Company who signed the Registration Statement), and each Person, if any, who controls the Company, any Underwriter or any other selling Holder within the meaning of Section 15 of the Securities Act, against any and all Damages described in the indemnity contained in paragraph (a) of this Section ( provided that any settlement of the type described therein is effected with the written consent of such selling Holder), as incurred, but only (i) with respect to untrue statements or alleged untrue statements of a material fact contained in any Prospectus or the omissions or alleged omissions therefrom of a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, in any such case made in reliance upon and in conformity with written information furnished to the Company by such selling Holder expressly for use in such Registration Statement (or any amendment thereto) or such Prospectus (or any amendment or supplement thereto) or (ii) that arises out of or is based upon offers or sales by such Holder or Underwriter “by means of” (as defined in Securities Act Rule 159A) a “free writing prospectus” (as defined in Securities Act Rule 405) that was not issued by or authorized in writing by the Company.  No selling Holder shall be liable under this Section 5(b) for any Damages in excess of the net proceeds realized by such selling Holder in the sale of Registrable Securities to which such Damages relate.
 
(c)         Conduct of Indemnification Proceedings .  Each indemnified party or parties shall give reasonably prompt notice to each indemnifying party or parties of any action or proceeding commenced against it in respect of which indemnity may be sought hereunder, but any failure to give such notice shall not relive the indemnifying party or parties to any obligation that it or they may have under this indemnity agreement, except to the extent that the indemnifying party is materially prejudiced by such failure to give notice.  If the indemnifying party or parties so elects
 

 
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within a reasonable time after receipt of such notice, the indemnifying party or parties may assume the defense of such action or proceeding at such indemnifying party’s or parties’ expense with counsel chosen by the indemnifying party or parties and approved by the indemnified party defendant in such action or proceeding, which approval shall not be unreasonably withheld; provided , however , that, if such indemnified party or parties determines in good faith that a conflict of interest exists and that therefore it is advisable for such indemnified party or parties to be represented by separate counsel or that, upon advice of counsel, there may be legal defenses available to it or them which are different from or in addition to those available to the indemnifying party, then the indemnifying party or parties shall not be entitled to assume such defense and the indemnified party or parties shall be entitled to separate counsel (limited in each jurisdiction to one counsel for all Underwriters and another counsel for all other indemnified parties under this Agreement) at the indemnifying party’s or parties’ expense.  If an indemnifying party or parties is not so entitled to assume the defense of such action or does not assume such defense, after having received the notice referred to in the first sentence of this paragraph, the indemnifying party or parties will pay the reasonable fees and expenses of counsel for the indemnified party or parties (limited in each jurisdiction to one counsel for all Underwriters and another counsel for all other indemnified parties under this Agreement).  No indemnifying party or parties will be liable for any settlement effected without the written consent of such indemnifying party or parties, which consent shall not be unreasonably withheld.  If an indemnifying party is entitled to assume, and assumes, the defense of such action or proceeding in accordance with this paragraph, such indemnifying party or parties shall not, except as otherwise provided in this subsection (c), be liable for any fees and expenses of counsel for the indemnified parties incurred thereafter in connection with such action or proceeding.
 
(d)         Contribution .  b) In order to provide for just and equitable contribution in circumstances in which the indemnity agreement provided for in this Section is for any reason held to be unenforceable by the indemnified parties although applicable in accordance with its terms in respect of any losses, liabilities, claims, damages, judgments and expenses suffered by an indemnified party referred to therein, each applicable indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, liabilities, claims, damages, judgments and expenses in such proportion as is appropriate to reflect the relative fault of the Company on the one hand and of the liable selling Holders (including, in each case, that of their respective officers, directors, employees and agents) on the other, in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages, judgments or expenses, as well as any other relevant equitable considerations.  The relative fault of the Company on the one hand and of the liable selling Holders (including, in each case, that of their respective officers, directors, employees and agents) on the other, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company, on the one hand, or by or on behalf of the selling Holders, on the other, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.  The amount paid or payable by a party as a result of the losses, liabilities, claims, damages, judgments and expenses referred to above shall be deemed to include, subject to the limitations
 

 
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set forth in paragraph (c) of this Section, any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim.
 
(ii)           The Company and each Holder of Registrable Securities agree that it would not be just and equitable if contribution pursuant to this paragraph (d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in sub-paragraph (i) above.  Notwithstanding the provisions of this paragraph (d), in the case of distributions to the public, an indemnifying Holder shall not be required to contribute any amount in excess of the amount by which (A) the total price at which the Registrable Securities sold by such indemnifying Holder and distributed to the public were offered to the public exceeds (B) the amount of any damages which such indemnifying Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission.  No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
 
(iii)           For purposes of this Section, each Person, if any, who controls a Holder or an Underwriter within the meaning of Section 15 of the Securities Act (and their respective partners, directors, officers and employees) shall have the same rights to contribution as such Holder or Underwriter; and each director of the Company, each officer of the Company who signed the Registration Statement and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act, shall have the same rights to contribution as the Company.
 
Section 6.
Miscellaneous .
 
(a)         Amendments and Waivers .  The provisions of this Agreement, including the provisions of this sentence, may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given unless the Company has obtained the written consent of the Barclays Representative.
 
(b)         Notices .  All notices and other communications provided for or permitted hereunder shall be made in writing by hand delivery, telex, facsimile or any courier guaranteeing overnight delivery (i) if to a Holder, at the most current address given by such Holder to the Company by means of a notice given in accordance with the provisions of this paragraph (b), which address initially is, with respect to Barclays as of the date hereof, at Barclays Bank PLC, 1 Churchill Place, Canary Wharf, London, E14 5HP, England facsimile number +44 1452 638157, Attention: Company Secretary, and is, with respect to BR Holdings as of the date hereof, at Barclays BR Holdings S.à r.l., 26b Boulevard Royal, L 2449 Luxembourg, Attention: Company Secretary, and thereafter at such other address, notice of which is given in accordance with the provisions of this paragraph, and with respect to each Holder who becomes after the date hereof, the address of such Holder in the stock or warrant records of the Company or (ii) if to the Company, at 40 East 52nd Street, New York, NY 10022, facsimile number (212) 810-3744,
 

 
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Attention: Robert P. Connolly, Esq., and thereafter at such other address, notice of which is given in accordance with the provisions of this paragraph (c), with a copy (which shall not constitute notice) to Skadden, Arps, Slate, Meagher & Flom, LLP, Four Times Square, New York, New York 10036, Attention: Richard T. Prins, facsimile number (917) 777-2790.  Notwithstanding the foregoing, the Company shall not be obligated to provide any notice to any Holder which is not a party to this Agreement except with respect to a Required or Incidental Registration Statement which has been filed and pursuant to which such Holder is identified as a selling stockholder.
 
All such notices and communications shall be deemed to have been duly given at the time delivered by hand, if personally delivered; when answered back, if telexed; when receipt is acknowledged, if telecopied; and on the next business day, if timely delivered to a courier guaranteeing overnight delivery.
 
(c)         Successors and Assigns .  This Agreement shall inure to the benefit of and be binding upon the successors, assigns and transferees of each of the parties without the need for an express assignment.  If any successor, assignee or transferee of any Holder shall acquire Registrable Securities in any manner, whether by operation of law or otherwise, such Registrable Securities shall be held subject to all of the terms of this Agreement, and by taking and holding such Registrable Securities such Person shall conclusively be deemed to have agreed to be bound by and to perform all of the terms and provisions of this Agreement and to receive the benefits hereof.  Notwithstanding the foregoing, nothing in this Section 6 is intended to enlarge the class of Persons which are Holders, as defined in the preamble of this Agreement, and thus entitled to the rights granted hereunder.  For purposes of this Agreement, “successor” for any entity other than a natural person means a successor to such entity as a result of such entity’s merger, consolidation, liquidation, dissolution, sale of substantially all of its assets or similar transaction.
 
(d)         Counterparts .  This Agreement may be executed in two or more counterparts, each of which, when so executed and delivered, shall be deemed to be an original, but all of which counterparts, taken together, shall constitute one and the same instrument.
 
(e)         Descriptive Headings, Etc .  The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning of terms contained herein.  Unless the context of this Agreement otherwise requires: (1) words of gender shall be deemed to include each other gender; (2) words using the singular or plural number shall also include the plural or singular number, respectively; (3) the words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Article, Section and paragraph references are to the Articles, Sections and paragraphs to this Agreement unless otherwise specified; (4) the word “including” and words of similar import when used in this Agreement means “including, without limitation,” unless otherwise specified; (5) “or” is not exclusive; and (6) provisions apply to successive events and transactions.
 

 
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(f)          Severability .  In the event that any one or more of the provisions, paragraphs, words, clauses, phrases or sentences contained herein, or the application thereof in any circumstances, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision, paragraph, word, clause, phrase or sentence in every other respect and of the other remaining provisions, paragraphs, words, clauses, phrases or sentences hereof shall not be in any way impaired, it being intended that all rights, powers and privileges of the parties hereto shall be enforceable to the fullest extent permitted by law.
 
(g)         Governing Law .  THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
 
(h)         Specific Performance .  The parties hereto acknowledge that there would be no adequate remedy at law if any party fails to perform in any material respect any of its obligations hereunder, and accordingly agree that each party, in addition to any other remedy to which it may be entitled at law or in equity, shall be entitled to compel specific performance of the obligations of any other party under this Agreement in accordance with the terms and conditions of this Agreement in any court of the United States or any State thereof having jurisdiction.
 
 
* * *

 
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first written above.
 


 
BLACKROCK, INC.
       
       
 
By:
/s/ Daniel R. Waltcher
   
Name:
Daniel R. Waltcher
   
Title:
Managing Director and Deputy General Counsel
 

 
 
BARCLAYS BANK PLC
       
       
 
By:
/s/ Chris Lucas
   
Name:
Chris Lucas
   
Title:
Director

 

   
     
BARCLAYS BR HOLDINGS S.À R.L.
       
 
By:
/s/ Manfred Zisselsberger
   
Name:
Manfred Zisselsberger
   
Title:
Attorney

 
[Signature Page of Registration Rights Agreement]




Exhibit 99.1
 
 
News Release    
 
 
Contact:

Media Relations
 
Media/Investor Relations
Bobbie Collins
 
Brian Beades
212-810-8155
 
212-810-5596
Bobbie.Collins@blackrock.com
 
invrel@blackrock.com


BLACKROCK COMPLETES MERGER WITH BARCLAYS GLOBAL INVESTORS

Includes the Market-Leading iShares Exchange Traded Funds Business

$3.2 Trillion Managed for Institutional and Retail Clients Globally

Adds Varley and Diamond to Board of Directors


New York, December 1, 2009 – BlackRock, Inc. (NYSE:BLK) today announced that it has completed its merger with Barclays Global Investors (“BGI”), including the market-leading iShares ® exchange traded funds business. The combined firm will operate under the BlackRock name and the iShares brand will be retained.
 
“Since this transaction was announced in early June, BlackRock and BGI employees have demonstrated their commitment to serving clients and delivering competitive investment results. Both firms maintained strong core business momentum while achieving the close of an unprecedented merger in less than six months, commented Laurence D. Fink, BlackRock’s Chairman and Chief Executive Officer.
 
“Beginning today, we move forward as one global firm, operating independently, focused solely on investment and risk management on behalf of our clients. We manage approximately $3.2 trillion on behalf of institutional and retail investors worldwide.  We offer truly differentiated capabilities – active, enhanced and index products – and the most talented professionals, able to identify investment opportunities, develop innovative investment solutions, and capture the benefits of scale for clients.”

Additions to Board of Directors

In connection with the closing of the merger, BlackRock also announced that John Varley, Group Chief Executive of Barclays PLC, and Robert E. Diamond Jr., President of Barclays PLC, have joined the BlackRock Board of Directors.
 
Brief biographical information on Mr. Varley and Mr. Diamond is provided below, and additional information on the full Board can be found on the “Investor Relations” section of BlackRock’s website.
 
John Varley.   Mr. Varley is Group Chief Executive of Barclays PLC. Prior to being named to his current position in September 2004, he had served as Group Deputy Chief Executive beginning in January 2004.  He held the position of Group Finance Director from 2000 until the end of 2003. Mr. Varley joined the Executive Committee in September 1996 and was appointed to the Barclays' Board in June 1998. He was Chief Executive of Retail Financial Services from 1998 to 2000 and Chairman of the Asset Management Division from 1995 to 1998. Mr. Varley also serves as a non-executive director of AstraZeneca PLC.

 
 
 
News Release       
 
 
Robert E. Diamond Jr. Mr. Diamond is President of Barclays PLC and Chief Executive Officer of Corporate and Investment Banking and Wealth Management, comprising Barclays Capital, Barclays Corporate and Barclays Wealth. He is an Executive Director of the Boards of Barclays PLC and Barclays Bank PLC and has been a member of the Barclays Group Executive Committee since September 1997. He joined the firm in summer 1996. Mr. Diamond is a member of the Board of Directors for the Institute of International Finance and member of the International Advisory Board of the British-American Business Council.

About BlackRock

BlackRock is a leader in investment management, risk management and advisory services for institutional and retail clients worldwide.  With approximately $3.2 trillion under management as of September 30, 2009 (pro forma), BlackRock offers products that span the risk spectrum to meet clients’ needs, including active, enhanced and index strategies across markets and asset classes.  Products are offered in a variety of structures including separate accounts, mutual funds, iShares (exchange-traded funds), and other pooled investment vehicles. BlackRock also offers risk management, advisory and enterprise investment system services to a broad base of institutional investors through BlackRock Solutions ® . Headquartered in New York City, the firm has over 8,500 employees in 24 countries. For additional information, please visit BlackRock’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,” “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 risk factors previously disclosed in BlackRock’s Securities and Exchange Commission (“SEC”) reports and those identified elsewhere in this report 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 and volatility 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; (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

 
 
 
 
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enforcement actions of government agencies relating to BlackRock, Barclays PLC, Bank of America Corporation, Merrill Lynch & Co., Inc. or The PNC Financial Services Group, Inc.; (11) terrorist activities and international hostilities, which may adversely affect the general economy, domestic and local financial and capital markets, specific industries or BlackRock; (12) the ability to attract and retain highly talented professionals; (13) fluctuations in the carrying value of BlackRock’s investments; (14) fluctuations in foreign currency exchange rates, which may adversely affect the value of investment advisory and administration fees earned by BlackRock or the carrying value of certain assets and liabilities denominated in foreign currencies; (15) the impact of changes to tax legislation and, generally, the tax position of the Company; (16) BlackRock’s success in maintaining the distribution of its products; (17) the impact of BlackRock electing to provide support to its products from time to time; (18) the impact of problems at other financial institutions or the failure or negative performance of products at other financial institutions; and (19) the ability of BlackRock to integrate the operations of Barclays Global Investors.

 
BlackRock's Annual Reports on Form 10-K and BlackRock's subsequent filings 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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