Attached files
| file | filename |
|---|---|
| EX-2.1 - EXHIBIT 2.1 - BlackRock Inc. | blackrock_ex2-1.htm |
| EX-10.3 - EXHIBIT 10.3 - BlackRock Inc. | blackrock_ex10-3.htm |
| EX-10.1 - EXHIBIT 10.1 - BlackRock Inc. | blackrock_ex10-1.htm |
| EX-10.2 - EXHIBIT 10.2 - BlackRock Inc. | blackrock_ex10-2.htm |
| EX-99.1 - EXHIBIT 99.1 NEWS RELEASE - BlackRock Inc. | blackrock_ex99-1.htm |
| 8-K - FORM 8-K - BlackRock Inc. | blackrock-8k.htm |
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]
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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.
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By:
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/s/
Daniel R. Waltcher
|
||
|
Name:
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Daniel
R. Waltcher
|
||
|
Title:
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Managing
Director and Deputy General Counsel
|
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