exhibit10-1.htm


     

     

    Exhibit
10.1

     

    


      AMENDMENT
NO. 1

      TO

      SECOND
AMENDED AND RESTATED

      STOCKHOLDER
AGREEMENT

       

      AMENDMENT
NO. 1, dated as of June 11, 2009 (this “Amendment”), to the SECOND AMENDED AND
RESTATED STOCKHOLDER AGREEMENT, dated as of February 27, 2009 (the “Original
Agreement”), among BlackRock, Inc., a Delaware corporation, Merrill Lynch &
Co., Inc., a Delaware corporation, and Merrill Lynch Group, Inc., a Delaware
corporation .  Capitalized terms used but not defined herein shall
have the meanings assigned to such terms in the Original Agreement.

       

      WITNESSETH:

       

      WHEREAS,
the parties hereto have entered into the Original Agreement; and

       

      WHEREAS,
pursuant to and in accordance with Section 6.5 of the Original Agreement, the
parties wish to amend the Original Agreement as set forth in this
Amendment;

       

      NOW,
THEREFORE, in consideration of the mutual promises and covenants set forth
herein and in the Original Agreement and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, and
intending to be legally bound, the parties hereby agree as follows:

       

      ARTICLE I

      AMENDMENTS

       

      Section
1.1             Effectiveness

       

      This Amendment shall become effective
only upon the Initial Closing (as defined in the Stock Purchase Agreement) of
that certain Stock Purchase Agreement by and among BARCLAYS PLC (solely for the
purposes of Section 6.16, Section 6.18 and Section 6.24), BARCLAYS BANK PLC
(“Barclays”) and BlackRock (the “Stock Purchase Agreement”).

       

      Section
1.2             Agreement

       

      Whenever used in the Original Agreement
or this Amendment, the term “Agreement” shall hereinafter refer to the Original
Agreement, as amended by this Amendment.

       

      Section
1.3             Certain
Definitions

       

      The definition of “Equivalent
Securities” and “Participating Preferred Stock” in Section 1.1 of the Original
Agreement is amended and restated in its entirety to read as
follows:

       


      
        
           


        

        
           


          
            

          

        

        
           


        

      


      


       

      ““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, 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.”

       

      ““Participating
Preferred Stock” means Series A Participating Preferred Stock, Series B
Participating Preferred Stock, Series C Participating Preferred Stock, and
Series D Participating Preferred Stock.”

       

      Section 1.1 of the Original Agreement
is amended to add the following definition:

       

      
        ““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.”

      

       

      
        
        

      

       

      Section
1.4             Composition
of the Board

       

      Section 4.1(a) is amended and restated
in its entirety to read as follows:

       

      “(a)                      Following the Closing, BlackRock and
Merrill Lynch shall each use its best efforts to cause the election at each
meeting of stockholders of BlackRock of such nominees reasonably acceptable to
the Board such that there are no more than 19 Directors; there are not less than two and not more than four Directors who are members
of BlackRock management (each a “Management Designee”); there are two Directors, each in a
different class, who are individuals designated in writing to BlackRock by
Merrill Lynch (each, a
“Merrill Lynch Designee”); there are no more than two Directors, each in a different
class, who are individuals designated in writing to BlackRock by a Person who is
a Significant Stockholder and has held such status since prior to the date of
the Transaction Agreement
(each, a “Significant Stockholder
Designee”); there are no more than two Directors, each in a different
class, who are individuals designated in writing to BlackRock by Barclays; and the remaining Directors are
Independent Directors.

       

      Section
1.5             Bank Holding
Company
Act.

       

      Article IV is amended and restated by
adding the following as Section 4.8:

       

      “Section
4.8     Bank Holding Company Act.

      


      (a)     In the
event that, and for so long as, BlackRock is deemed by the Board of Governors of
the Federal Reserve System
(the “Federal
Reserve”) to be
“controlled” by Bank of America Corporation for
purposes of the U.S. Bank Holding Company Act, pursuant to regulations and
interpretations of the Federal Reserve, Bank of America Corporation shall
have


      
        
           


        

        
           


          
            

          

        

        
           


        

      


      appropriate access and input regarding
regulatory compliance and risk management practices at BlackRock as needed to
satisfy bank holding company regulatory safety and soundness
requirements.

      


      (b)     Provided
that Bank of America Corporation’s ownership of voting and nonvoting equity of
BlackRock is beneath the threshold for controlling investments as specified
under the Federal Reserve's Regulation Y (12 CFR Part 225) and its
interpretations thereunder, Merrill Lynch and its Affiliates will cooperate
with BlackRock in seeking to prevent
BlackRock from  being deemed by the federal reserve to be
“controlled” by Bank of America Corporation for
purposes of the U.S. Bank Holding Company Act.”

      


      ARTICLE II

      REPRESENTATIONS AND
WARRANTIES

       

      Section
2.1             Merrill
Lynch Representations and Warranties

       

      Merrill
Lynch represents and warrants to BlackRock as follows:

       

      (a)           Organizational
and Good Standing of Merrill
Lynch.  Merrill
Lynch is a legal entity duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization and has the requisite power and
authority to carry on its business as currently conducted.

       

      (b)           Authorization;
Binding Obligations of Merrill
Lynch.  Merrill
Lynch has full corporate power and authority to execute and deliver this
Amendment and to perform
its obligations hereunder.  The execution, delivery and performance by
Merrill Lynch of this Amendment have been duly and validly authorized and
approved by all necessary corporate action on the part of Merrill
Lynch.  This Amendment has been duly and validly executed and delivered by Merrill
Lynch and (assuming due authorization, execution and delivery by BlackRock) this
Amendment constitutes a valid and binding obligation of Merrill Lynch,
enforceable against it in accordance with its terms, except as (a) the enforceability hereof and thereof
may be limited by bankruptcy, insolvency, moratorium or other similar laws
affecting the enforcement of creditors’ rights generally and (b) the
availability of equitable remedies may be limited by equitable
principles of general
applicability.

       

      Section
2.2             BlackRock
Representations and Warranties

       

      BlackRock
hereby represents and warrants to Merrill Lynch as follows:

       

      (a)           Organizational
and Good Standing of the BlackRock.  BlackRock is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware.  BlackRock has the requisite
corporate power and authority to carry on its business as currently
conducted.

       


      
        
           


        

        
           


          
            

          

        

        
           


        

      


      


       

      (b)           Authorization;
Binding Obligations of BlackRock.  BlackRock has full
corporate power and
authority to execute and deliver this Amendment and to perform its obligations
hereunder.  The execution, delivery and performance by BlackRock of
this Amendment has been duly and validly authorized and approved by all
necessary corporate action of BlackRock.  This Amendment has
been duly and validly executed and delivered by BlackRock and (assuming due
authorization, execution and delivery by Merrill Lynch) this Amendment
constitutes, a valid and binding obligation of BlackRock enforceable against it
in accordance with its terms, except as
(a) the enforceability hereof or thereof may be limited by bankruptcy,
insolvency, moratorium or other similar laws affecting the enforcement of
creditors’ rights generally and (b) the
availability of equitable remedies may be limited by equitable
principles of general applicability.

       

      ARTICLE III

      MISCELLANEOUS

       

      Section
3.1             Full Force
and Effect.  Except as expressly amended by this
Amendment, the Original Agreement remains unchanged, and the Original Agreement,
as amended hereby, is hereby ratified, approved and confirmed in all
respects as the agreement between Merrill Lynch and BlackRock and shall remain
in full force and effect.

       

      Section
3.2             Governing
Law.  This Amendment 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.

       

      Section
3.3             Counterparts.  This Amendment 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
3.4             Savings
Clause.  No
provision of this Amendment 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.

       

      


       


      
        
           


        

        
           


          
            

          

        

        
           


        

      


      


       

       IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed on its behalf by an authorized officer as of the date first above
written.

       

      
         

      

       

      
        
          
            
              
                
                  
                    	 
      	
                            BLACKROCK,
      INC.

                          	 
	 
      	 
      	 
      	 
      	 
	 
      	 
      	 
      	 
      	 
	 
      	
                            By:

                          	/s/
      Daniel
      R. Waltcher	 
	 
      	 
      	
                            Name:

                          	
                            Daniel
      R. Waltcher

                          	 
	 
      	 
      	
                            Title:

                          	
                            Managing
      Director and Deputy

                            General
      Counsel

                          	 
	 
      	 
      	 
      	 
      	 
	 
      	 
      	 
      	 
      	 
	 
      	
                            MERRILL
      LYNCH & CO., INC.

                          	 
	 
      	 
      	 
      	 
      	 
	 
      	 
      	 
      	 
      	 
	 
      	
                            By:

                          	/s/
      Teresa
      M. Brenner	 
	 
      	 
      	
                            Name:

                          	
                            Teresa
      M. Brenner

                          	 
	 
      	 
      	
                            Title:

                          	
                            Associate
      General Counsel

                          	 
	 
      	 
      	 
      	 
      	 
	 	 	 	 	 
	 
      	
                            MERRILL
      LYNCH GROUP, INC.

                          	 
	 
      	 
      	 
      	 
      	 
	 
      	 
      	 
      	 
      	 
	 
      	
                            By:

                          	/s/
      Teresa
      M. Brenner	 
	 
      	 
      	
                            Name:

                          	
                            Teresa
      M. Brenner

                          	 
	 
      	 
      	
                            Title:

                          	
                            Associate
      General Counsel