BY AND BETWEEN
BARCLAYS BANK PLC
Dated as of May 21, 2012
THIS STOCK REPURCHASE AGREEMENT (this Agreement) is made and entered into as of May 21, 2012 between Barclays Bank PLC, a corporation organized under the laws of England and Wales (Barclays), and BlackRock, Inc., a Delaware corporation (BlackRock).
WHEREAS, BlackRock and Barclays propose to enter into a transaction whereby certain subsidiaries of Barclays (each, a Selling Stockholder and, collectively, the Selling Stockholders) shall sell to BlackRock, and BlackRock shall purchase from such Selling Stockholders, certain shares of BlackRocks Series B non-voting convertible participating preferred stock, par value $0.01 per share (Series B Preferred Stock), and Common Stock, par value $0.01 per share (Common Stock), as set forth in this Agreement (the Repurchase Transaction); and
WHEREAS, one of the Selling Stockholders proposes to sell through an underwritten public offering (the Secondary Offering) shares of BlackRocks common stock, par value $0.01 per share (the Common Stock), including shares of Common Stock issuable upon the conversion of an equal number of shares of Series B Preferred Stock (collectively, the Secondary Offering Shares).
NOW, THEREFORE, in consideration of the foregoing, of the mutual promises herein set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is hereby agreed as follows:
Section 1.1 Repurchase of Series B Preferred Stock and Common Stock.
(a) Under the terms and subject to the conditions hereof and in reliance upon the representations, warranties and agreements contained herein, at the Closing (as defined below), Barclays shall cause the Selling Stockholders to sell to BlackRock such aggregate number of shares of Common Stock and Series B Preferred Stock (such aggregate amount, the Barclays Shares) equal to $1,000,000,000, subject to any reduction pursuant to clause (b) below (the Purchase Price), divided by the price per share of the Common Stock paid by the underwriters (the Secondary Share Price) to the Selling Stockholders in the Secondary Offering and rounded down for any fraction of a share; provided, that the allocation of Common Stock and Series B Preferred Stock comprising the Barclays Shares shall be determined in the sole discretion of Barclays; provided, further, that the Barclays Shares shall include at least 31,516 shares of Common Stock before any shares of Series B Preferred Stock may be included in the Barclays Shares.
(b) In the event that the number of shares sold in the Secondary Offering, without giving effect to any option of the underwriters to purchase additional shares (the Secondary Shares), is less than 90% of the difference between 35,210,021 (the total number of shares of BlackRock capital stock beneficially owned by the Selling Stockholders) and the number of shares equal to $1 billion divided by the Secondary Share Price (the Minimum Condition Shares), the Purchase Price shall be reduced to the dollar amount equal to the product of $1 billion and the Secondary Shares divided by the Minimum Condition Shares (the Amended Purchase Price) and the aggregate number of Barclays Shares shall be reduced and be equal to the Amended Purchase Price divided by the Secondary Share Price rounded down for any fraction of a share.
(c) For the avoidance of doubt, the price per share to be paid by BlackRock shall in all cases be equal to the Secondary Share Price.
Section 1.2 Closing . The closing (the Closing) of the purchase of the Barclays Shares shall be held at the offices of Skadden, Arps, Slate, Meagher & Flom LLP, Four Times Square, New York, New York, immediately subsequent to the satisfaction or waiver of the conditions set forth in Articles V and VI herein (the Closing Date), or at such other time, date or place as Barclays and BlackRock may agree in writing.
Section 1.3 Deliveries.
(a) At the Closing, Barclays shall deliver or cause to be delivered to BlackRock (collectively, the Barclays Closing Deliveries):
(i) the Barclays Shares from each applicable Selling Stockholder to BlackRock in the form attached hereto as Exhibit A free and clear of any Lien (as defined below); and
(ii) two duly completed and executed original copies of Internal Revenue Service (the IRS) Form W-9 or IRS Form W-8BEN, as applicable, for each Selling Stockholder.
(b) At the Closing, BlackRock shall deliver to Barclays or the Selling Stockholders, as directed by Barclays, the Purchase Price, payable by wire transfer of immediately available funds to an account or accounts that Barclays shall designate in writing at least two business days prior to the Closing Date.
REPRESENTATIONS AND WARRANTIES OF BARCLAYS
Barclays represents and warrants to BlackRock, on its behalf and on behalf of the Selling Stockholders, as follows:
Section 2.1 Title to Barclays Shares . As of the Closing, the Selling Stockholders shall own and shall deliver the Barclays Shares, free and clear of any and all option, call, contract, commitment, mortgage, pledge, security interest, encumbrance, lien, tax, claim or charge of any kind or right of others of whatever nature, other than any arising out of, resulting from or in connection with any agreement, arrangement or understanding between Barclays or any of its subsidiaries and BlackRock (collectively, a Lien).
Section 2.2 Authority Relative to this Agreement . Barclays has the requisite corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement by Barclays and the consummation by Barclays and the Selling Stockholders of the transactions contemplated hereby, including the sale of the Barclays Shares, has been duly authorized by the respective boards of directors or general partner, as applicable, of Barclays and each of the Selling Stockholders and no other corporate, stockholder or partnership proceedings, as applicable, on the part of Barclays or the Selling Stockholders are necessary to authorize this Agreement or for Barclays or the Selling Stockholders to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by Barclays and constitutes the valid and binding obligations of Barclays, enforceable against Barclays in accordance with its terms, except as may be limited by bankruptcy, insolvency or other equitable remedies.
Section 2.3 Approvals. No material consent, approval, authorization or order of, or registration, qualification or filing with, any court, regulatory authority, governmental body or any other third party is required to be obtained or made by Barclays for the execution, delivery or performance by Barclays of this Agreement or the consummation by Barclays and the Selling Stockholders of the transactions contemplated hereby.
Section 2.4 Receipt of Information. Each of Barclays and the Selling Stockholders has received all the information it considers necessary or appropriate for deciding whether to dispose of the Barclays Shares. Barclays and the Selling Stockholders have had an opportunity to ask questions and receive answers from BlackRock regarding the terms and conditions of BlackRocks purchase of the Barclays Shares and the business and financial condition of BlackRock and to obtain additional information (to the extent BlackRock possessed such information or could acquire it without unreasonable effort or expense) necessary to verify the accuracy of any information furnished to it or to which it had access. None of Barclays or any of the Selling Stockholders has received, or is relying on, any representations or warranties from BlackRock, other than as provided herein.
Section 2.5 Treatment of Repurchase. Barclays believes that no portion of the Purchase Price will be treated as a dividend under Section 301 of the Internal Revenue Code of 1986, as amended (the Code) by reason of Section 302 of the Code or otherwise.
REPRESENTATIONS AND WARRANTIES OF BLACKROCK
BlackRock hereby represents and warrants to Barclays as follows:
Section 3.1 Authority Relative to this Agreement. BlackRock has the requisite corporate power and authority to execute and deliver this Agreement and consummate the transactions contemplated hereby. The execution and delivery of this Agreement by BlackRock, and the consummation by BlackRock of the transactions contemplated hereby, including the
purchase of the Barclays Shares have been duly authorized by BlackRocks board of directors (including a majority of BlackRocks Independent Directors (as defined in the stockholder agreement entered into between Barclays, BlackRock and other subsidiaries of Barclays)), and no other corporate or stockholder proceedings on the part of BlackRock are necessary to authorize this Agreement or to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by BlackRock and constitutes the valid and binding obligations of BlackRock, enforceable against BlackRock in accordance with its terms, except as may be limited by bankruptcy, insolvency or other equitable remedies.
Section 3.2 Approvals. No material consent, approval, authorization or order of, or registration, qualification or filing with, any court, regulatory authority, governmental body or any other third party is required to be obtained or made by BlackRock for the execution, delivery or performance by BlackRock of this Agreement or the consummation by BlackRock of the transactions contemplated hereby.
Section 3.3 Funds. BlackRock will have as of the Closing sufficient cash available to pay the Purchase Price to Barclays or the Selling Stockholders, as the case may be, on the terms and conditions contained herein, and there will be no restriction on the use of such cash for such purpose.
Section 4.1 Additional Agreements. The parties shall and shall cause their subsidiaries to take such action and execute, acknowledge and deliver such agreements, instruments and other documents as the other party may reasonably require from time to time in order to carry out the purposes of this Agreement.
Section 4.2 Public Announcements. Except as may be required by applicable law, rule or regulation of any governmental authority or self-regulatory organization or any judicial, administrative or legal order, no party hereto shall make any public announcements or otherwise communicate with any news media with respect to this Agreement or any of the transactions contemplated hereby (a Public Announcement), without prior consultation with the other parties as to the timing and contents of any such announcement or communications; provided, however, that nothing contained herein shall prevent (a) any party from promptly making any filings with any governmental entity or disclosures with the stock exchange, if any, on which such partys capital stock is listed, as may, in its judgment, be required in connection with the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby or (b) Barclays or its affiliates from making any Public Announcement that it believes, upon advice of counsel, is reasonably necessary for prudent disclosure purposes.
Section 4.3 Withholding. BlackRock shall pay the Purchase Price to Barclays or the Selling Stockholders, as directed by Barclays, free and clear of, and without reduction or withholding for, any taxes. Notwithstanding the foregoing, Barclays and each Selling Shareholder shall indemnify BlackRock against any and all taxes (and any and all related losses, claims, liabilities, penalties, interest, and expenses) incurred by or asserted against BlackRock by
the IRS or any other governmental authority as a result of BlackRocks failure to deduct and withhold the proper amount of tax from the Purchase Price for any reason, including, without limitation, the treatment of all or any portion of the Purchase Price as a distribution under Sections 302(d) and 301 of the Code.
CONDITIONS TO CLOSING OF BLACKROCK
The obligation of BlackRock to purchase the Barclays Shares at the Closing is subject to the fulfillment on or prior to the Closing of each of the following conditions:
Section 5.1 Representations and Warranties. Each representation and warranty made by Barclays in Article II above shall be true and correct on and as of the Closing Date as though made as of the Closing Date.
Section 5.2 Performance. All covenants, agreements and conditions contained in this Agreement to be performed or complied with by Barclays on or prior to the Closing Date shall have been performed or complied with by Barclays in all respects.
Section 5.3 Closing Certificate. Barclays shall have delivered to BlackRock a certificate, dated the Closing Date and signed by an authorized signatory of Barclays, certifying to the effect that the conditions set forth in Sections 5.1 and 5.2 have been satisfied.
Section 5.4 Certificates and Documents. Barclays shall have delivered at or prior to the Closing to BlackRock or its designee the Barclays Closing Deliveries.
Section 5.5 Completion of Secondary Offering. The Secondary Offering shall have been consummated in accordance with the terms and conditions of any underwriting or purchase agreement entered into in connection therewith. For greater certainty all references to the consummation of the Secondary Offering contained herein do not require the exercise of any option granted to the underwriters for such offering.
CONDITIONS TO CLOSING OF BARCLAYS
The obligation of Barclays to cause the Selling Stockholders to sell the Barclays Shares to BlackRock at the Closing is subject to the fulfillment on or prior to the Closing of each of the following conditions:
Section 6.1 Representations and Warranties. Each representation and warranty made by BlackRock in Article III above shall be true and correct on and as of the Closing Date as though made as of the Closing Date.
Section 6.2 Performance. All covenants, agreements and conditions contained in this Agreement to be performed or complied with by BlackRock on or prior to the Closing Date shall have been performed or complied with by BlackRock in all respects.
Section 6.3 Certificate. BlackRock shall have delivered to Barclays a certificate, dated the Closing Date and signed by an executive officer of BlackRock, certifying to the effect that the conditions set forth in Sections 6.1 and 6.2 have been satisfied.
Section 6.4 Purchase Price. BlackRock shall have delivered to Barclays or its designee or designees the Purchase Price, payable by wire transfer of immediately available funds to the account or accounts that Barclays shall designate at least two business days prior to the date of Closing.
Section 6.5 Completion of Secondary Offering. The Secondary Offering shall have been consummated in accordance with the terms and conditions of any underwriting or purchase agreement entered into in connection therewith. For greater certainty all references to the consummation of the Secondary Offering contained herein do not require the exercise of any option granted to the underwriters for such offering.
Section 7.1 Termination. This Agreement may be terminated prior to the Closing as follows: (i) at any time on or prior to the Closing, by mutual written consent of Barclays and BlackRock or (ii) at the election of Barclays or BlackRock by written notice to the other party hereto after 5:00 p.m., New York time, on June 15, 2012, if the Closing shall not have occurred, unless such date is extended by the mutual written consent of Barclays and BlackRock; provided, however, that the right to terminate this Agreement pursuant to this clause (ii) shall not be available to a party whose failure or whose subsidiaries or affiliates failure to perform or observe in any material respect any of its obligations under this Agreement in any manner shall have been the principal cause of or resulted in the failure of the Closing to occur on or before such date.
Section 7.2 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 7.3 Amendment and Waiver. This Agreement may not be amended except by an instrument in writing signed on behalf of each of the parties hereto. 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 7.4 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. Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement in any other jurisdiction and 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.
Section 7.5 Entire Agreement. Except as otherwise expressly set forth herein, this Agreement, together with the several agreements and other documents and instruments referred to herein or therein or annexed hereto and executed contemporaneously herewith, embody the complete agreement and understanding among the parties hereto with respect to the subject matter hereof and supersede and preempt any prior understandings, agreements or representations by or among the parties, written or oral, that may have related to the subject matter hereof in any way.
Section 7.6 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 by any party without the prior written consent of the other parties.
Section 7.7 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 7.8 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 shall 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 7.9 Notices. All notices and other communications hereunder shall be in writing and shall be deemed given if delivered personally, sent by electronic mail, 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.
If to BlackRock:
c/o BlackRock, Inc.
55 East 52nd Street
New York, NY 10055
Attn: Susan L. Wagner
40 East 52nd Street
New York, NY 10022
Attn: General Counsel
with a copy (which shall not constitute notice) to:
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, NY 10036
Attention: Stacy J. Kanter, Esq.
If to Barclays:
Barclays Bank PLC
1 Churchill Place
Facsimile: +44 1452 638157
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
Attention: Eric M. Krautheimer, Esq.
Section 7.10 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 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 7.10, 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 Barclays and BlackRock to jurisdiction and service contained in this Section 7.10 is solely for the purpose referred to in this Section 7.10 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 7.11 Interpretation. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the words include, includes or including are used in this Agreement, they shall be deemed to be followed by the words without limitation.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Stock Repurchase Agreement to be duly executed and delivered as of the date first above written.
|BARCLAYS BANK PLC|
|Name:||Iain H. Abrahams|
|Title:||Executive Vice Chairman|
|Title:||Managing Director, Deputy General Counsel and Assistant Secretary|
Transfer of Stock Ownership Form BNY Mellon Shareowner Services P.O. Box 358010 Pittsburgh, PA 15252-8010 Section A - Issuer Name Company Name Cusip Number Account Key Section B - Current Shareowner Investor ID or SSN/TIN Registration/Name and Address exactly as it appears on your certificate or statement Section C - Shares To Be Transferred Original Stock Certificate Shares* Book-entry Shares Total Shares To Be Transferred To Be Transferred To Be Transferred *Please attach and send the original stock certificates together with this form. Section D - Transfer Reason1 Lost Certificates Lost Certificates Please call 1-800-370-1163 Check only one: All transfers will be assumed to be Gifts if no reason is provided. If we receive documentation (e.g., death certificate) indicating that the registered shareowner is deceased, the transfer reason will default to Death. Gift Date of Gift2: __/__/___ (Gift date applies to certificates only) Death Date of Death3:__/__/___ Value per Share4: USD_____._ _ Private Sale Date of Sale3: __/__/___ Value per Share: USD_____._ _ None of the above5:___________________________________________________________ (Please Specify) 1 You may wish to consult with your tax advisor on the definition and tax implications for each type of transfer. 2 If not provided, gift date for certificates will default to the date that the transfer is processed. For book entry shares, the gift date will always be the date that the transfer is processed. 3 Date of Sale/Death will default to the date that the transfer is processed unless provided. For transfers due to death, date of death will default to the date indicated in the documents (e.g., death certificate) received with the transfer instructions, if any. 4 Determines cost basis for beneficiaries. Value per share will default to the fair market value on date of death unless provided. 5 Existing cost basis of shares will be carried over to the new account. Section E - Required Signature and Medallion Signature Guarantee The undersigned hereby irrevocably constitutes and appoints BNY Mellon Shareowner Services as attorney to transfer the shares with full power of substitution in the premise. Signature:____________________________ Signature:____________________________ Date: ____________________________ Signatures must be guaranteed by a participant in a Medallion Signature Guarantee Program. Each registered owner must sign his/her name exactly as it appears on the account, or an authorized person must sign in his/her legal capacity. Page 1 of 2
Section F - New Shareowner(s) Account Type If you wish to divide your shares between two or more owners individually, please use additional copies of this page. Account Type Check One Individual Joint Custodial Trust Estate Corporation Other: (please specify) Section G - New Shareowner(s) Account Information Total Shares to be Transferred to this Account Account Key (If Transferring to Existing Account) Registration/Name and Address of New Owner Section H - Taxpayer ID Certification (Substitute Form W-9) (To be completed by the new shareowner) YOUR ACCOUNT MAY BE SUBJECT TO BACKUP WITHHOLDING AT THE APPLICABLE RATE IF YOU DO NOT COMPLETE THIS SUBSTITUTE FORM W-9. All new security holders are required to sign and return this certification. If the requested information is not known at the time of the transfer or the new owner is not available to sign, a W-9 Form will be mailed to the new shareholder(s) once the shares are transferred. The new shareholder alternatively may go online to www.bnymelloninvestor.com/equityaccess and certify their Taxpayer Identification Number. For further instructions on filling out the form, please refer to www.irs.gov. Check appropriate box: Individual/Sole proprietor C Corporation S Corporation Partnership Trust/estate Limited liability company. Enter the tax classification (C=C corporation, S=S corporation, P=partnership) Other (see instructions at www.irs.gov) New Shareholders Taxpayer ID Number Under penalties of perjury, I certify that: 1. The number shown on this form is my correct taxpayer identification number (or I am waiting for a number to be issued to me), and 2. I am not subject to backup withholding because: (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue Service (IRS) that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding, and 3. I am a U.S. citizen or other U.S. person (defined in the instructions). Certification instructions. You must cross out item 2 above if you have been notified by the IRS that you are currently subject to backup withholding because you have failed to report all interest and dividends on your tax return. For real estate transactions, item 2 does not apply. For mortgage interest paid, acquisition or abandonment of secured property, cancellation of debt, contributions to an individual retirement arrangement (IRA), and generally, payments other than interest and dividends, you are not require to sign the certification, but you must provide your correct TIN. Sign Here Signature of U.S. person Date