Purchase and Sale Agreement - NASDAQ Stock Market Inc. and National Association of Securities Dealers Inc.
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PURCHASE AND SALE AGREEMENT
between
THE NASDAQ STOCK MARKET, INC.
and
NATIONAL ASSOCIATION OF SECURITIES DEALERS, INC.
Dated as of February 20, 2002
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PURCHASE AND SALE AGREEMENT dated as of February 20, 2002 (this
"AGREEMENT"), between the National Association of Securities Dealers, Inc., a
Delaware nonprofit corporation (the "NASD"), and The Nasdaq Stock Market, Inc.,
a Delaware corporation ("NASDAQ").
WHEREAS, the NASD is the beneficial owner of 76,994,871 shares of the
common stock, par value $.01 per share, of Nasdaq (the "COMMON STOCK"); and
WHEREAS, in furtherance of enabling Nasdaq and the NASD to meet a
principal goal of the restructuring and recapitalization of Nasdaq (the
"RESTRUCTURING")--the reduction of the NASD's ownership of Nasdaq--as well as to
assist the NASD in fulfilling its commitment to attempt to eliminate its
ownership interest in Nasdaq by June 2002, the NASD desires to sell and Nasdaq
desires to purchase on the terms and subject to the conditions provided for
herein, 33,768,895 shares of Common Stock (the "SHARES"), which, together with
the shares of Common Stock underlying outstanding and unexpired warrants issued
by the NASD in connection with the Restructuring (such shares, the "WARRANT
SHARES"), constitute all of the shares of Common Stock beneficially owned by the
NASD as of the date hereof; and
WHEREAS, in connection with the foregoing purchase and sale, the
parties desire to provide for certain other agreements.
NOW, THEREFORE, in consideration of the provisions contained herein,
the parties hereto agree as follows:
1. PURCHASE AND SALE OF THE SHARES.
1.01 SALE OF THE SHARES. On the terms and subject to the conditions
contained herein, the NASD agrees to sell to Nasdaq and Nasdaq agrees to buy
from the NASD the Shares.
1.02 DELIVERY OF THE SHARES. As set forth in SECTION 2, the NASD shall
deliver to Nasdaq validly issued certificates representing the Shares duly
endorsed in blank or accompanied by stock powers duly executed in blank, with
all necessary stock transfer stamps affixed thereto.
1.03 PURCHASE PRICE. The aggregate purchase price (the "PURCHASE
PRICE") for the Shares shall consist of (i) $305,155,435 in cash (the "CASH
PURCHASE PRICE"), (ii) 1,338,402 shares of Nasdaq's Series A preferred stock,
the terms of which are substantially as set forth in the form of Series A
Certificate of Designations attached as EXHIBIT I hereto (the "SERIES A
PREFERRED STOCK"), and (iii) one share of Nasdaq's Series B preferred stock, the
terms of which are substantially as set forth in the form of Series B
Certificate of Designations attached as EXHIBIT II hereto (the "SERIES B
PREFERRED STOCK" and together with the Series A Preferred Stock, the "PREFERRED
STOCK").
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2. THE CLOSING.
2.01 CLOSING. The closing of the purchase and sale of the Shares
provided for in this Agreement (the "CLOSING") shall take place in two stages.
In the first stage of the Closing (the "STAGE ONE CLOSING"), the NASD shall
sell, and Nasdaq shall purchase, 13,461,538 of the Shares (the "STAGE ONE
SHARES") in exchange for $174,999,994 of the Cash Purchase Price (the "STAGE ONE
CASH CONSIDERATION"). In the second stage of the Closing (the "STAGE TWO
CLOSING"), the NASD shall sell, and Nasdaq shall purchase, 20,307,357 of the
Shares (the "STAGE TWO SHARES") in exchange for (i) $130,155,441 of the Cash
Purchase Price (the "STAGE TWO CASH CONSIDERATION") and (ii) the Preferred
Stock.
2.02 CLOSING DATES. The Stage One Closing shall take place on
February 21, 2002, or such other date as the parties may mutually agree (the
date of such closing being referred to herein as the "STAGE ONE CLOSING DATE").
The Stage Two Closing shall take place on March 1, 2002, or such other date as
the parties may mutually agree (the date of such closing being referred to
herein as the "STAGE TWO CLOSING DATE"). In the event that all the conditions
provided for in SECTIONS 6 and 7 have not been satisfied or waived by March 1,
2002, or such other mutually agreed upon date, the Stage Two Closing shall take
place on the second business day following the date that all such conditions
have been satisfied or waived, other than those that by their nature are to be
satisfied on the Stage Two Closing Date, but subject to the satisfaction or
waiver of those conditions. Each of the Stage One Closing and the Stage Two
Closing shall take place at the offices of Skadden, Arps, Slate, Meagher & Flom
LLP, Four Times Square, New York, New York 10036, at 10 a.m., or at such other
place and time as the parties hereto may mutually agree.
2.03 CLOSING DELIVERIES.
2.3.1 STAGE ONE CLOSING DELIVERIES.
(a) On the Stage One Closing Date, Nasdaq shall pay to the NASD the
Stage One Cash Consideration by wire transfer of immediately available funds to
an account specified by the NASD for such purpose.
(b) On the Stage One Closing Date, the NASD shall deliver to Nasdaq
validly issued certificates representing the Stage One Shares duly endorsed in
blank or accompanied by stock powers duly executed in blank, with all necessary
stock transfer stamps affixed thereto.
2.3.2 STAGE TWO CLOSING DELIVERIES.
(a) On the Stage Two Closing Date, Nasdaq shall (i) pay to the NASD
the Stage Two Cash Consideration by wire transfer of immediately available funds
to an account specified
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by the NASD for such purpose and (ii) deliver to the NASD validly issued
certificates representing the Preferred Stock in the name of the NASD.
(b) On the Stage Two Closing Date, the NASD shall deliver to Nasdaq
validly issued certificates representing the Stage Two Shares duly endorsed in
blank or accompanied by stock powers duly executed in blank, with all necessary
stock transfer stamps affixed thereto.
3. COVENANTS.
3.01 FURTHER ACTIONS. The parties hereto agree to use their reasonable
best efforts to have the Closing occur as soon as practicable consistent with
the provisions of this Agreement.
3.02 INVESTOR RIGHTS AGREEMENT. The parties hereto agree to take all
action reasonably necessary to finalize, execute and deliver an investor rights
agreement (the "INVESTOR RIGHTS AGREEMENT"), as of the Stage One Closing Date.
3.03 VOTING. Commencing upon Nasdaq becoming registered with the U.S.
Securities and Exchange Commission (the "SEC") as a national securities exchange
("EXCHANGE REGISTRATION"), at any meeting at which holders of Common Stock are
entitled to vote or in connection with any written consent by holders of Common
Stock, the NASD shall cause to be counted as present thereat for the purpose of
establishing a quorum and shall vote (or grant its consent in respect of) all
shares of Common Stock beneficially owned by the NASD that are not then subject
to the Voting Trust Agreement (as defined below) on each matter presented in the
same proportion as all other holders of Common Stock have voted (or granted
consent) on such matter (for such purposes, only votes in favor, in opposition
or abstention shall be counted as voting, shares that are not voted shall not be
counted). In connection with the foregoing, the NASD shall so instruct the
inspector of election or party seeking consent to cause such shares of Common
Stock to be counted as provided above. The NASD acknowledges that the voting of
the Warrant Shares shall be governed by the Voting Trust Agreement, dated June
28, 2000, as amended from time to time (the "VOTING TRUST AGREEMENT"), by and
among Nasdaq, the NASD and The Bank of New York, as voting trustee.
3.04 SEC APPROVALS.
(a) Prior to, and following, the Stage Two Closing Date, (i) the NASD
shall use all reasonable efforts to secure SEC approval of the rules previously
filed by the NASD with the SEC, in connection with the NASD's alternative
display facility.
(b) Nasdaq agrees to use its reasonable best efforts to secure SEC
approval of each of the Series A Certificate of Designations and the Series B
Certificate of Designations as soon as practicable consistent with the
provisions of this Agreement.
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3.05 CERTAIN ACTIONS OF NASDAQ PRIOR TO REDEMPTION OF THE SERIES A
PREFERRED STOCK. During the period commencing on the Stage Two Closing Date and
terminating on the date of the redemption or purchase in full of all of the
then-outstanding shares of Series A Preferred Stock by Nasdaq, Nasdaq shall not,
and shall not permit any of its Restricted Subsidiaries to, without the prior
written consent of the NASD, which consent shall not be unreasonably withheld,
conditioned or delayed (it being understood that conditioning such consent on
Nasdaq's agreement to use the net proceeds of such transaction to redeem Series
A Preferred Stock shall be deemed to be not unreasonable):
(a) incur or assume any new long-term debt (a, "LONG-TERM DEBT
INCURRENCE"); PROVIDED, HOWEVER, that this clause (a) shall not restrict in any
manner any Long-Term Debt Incurrences whereby the amount of net proceeds to,
plus the amount of long-term debt assumed by, Nasdaq and its Restricted
Subsidiaries, collectively, from Long-Term Debt Incurrences together with net
proceeds to Nasdaq and its Restricted Subsidiaries, collectively, from
Extraordinary Asset Sales (as defined below), do not exceed at any time an
aggregate outstanding amount equal to $200,000,000 (or its equivalent in other
currencies) (which amount shall include, but not be limited to, the amount of
net proceeds to Nasdaq and its Restricted Subsidiaries, collectively, from
Long-Term Debt Incurrences to refinance the Cash Purchase Price).
For purposes of this Agreement, "LONG-TERM DEBT INCURRENCES" shall NOT
include the incurrence of any new long-term debt (i) the purpose of which is to
refinance debt of Nasdaq or any Restricted Subsidiary, collectively, outstanding
on the Stage One Closing Date or (ii) pursuant to or under lines of credit to
Nasdaq or any Restricted Subsidiary existing on the Stage One Closing Date.
(b) sell, transfer or otherwise dispose of assets of Nasdaq held
directly or indirectly through any Restricted Subsidiary for cash outside of the
ordinary course of Nasdaq's business (an "EXTRAORDINARY ASSET SALE"); PROVIDED,
HOWEVER, that this clause (b) shall not restrict in any manner any sale,
transfer or other disposition of assets resulting in net proceeds to Nasdaq and
its Restricted Subsidiaries, collectively, that together with the amount of net
proceeds to, plus the amount of long-term debt assumed by, Nasdaq and its
Restricted Subsidiaries, collectively, from Long-Term Debt Incurrences at any
time outstanding, do not exceed at any time an aggregate amount equal to
$200,000,000 (or its equivalent in other currencies).
For purposes of this Agreement, "EXTRAORDINARY ASSET SALES" shall NOT
include (i) any sale, transfer or disposition of assets of Nasdaq to a
Restricted Subsidiary, if such Restricted Subsidiary agrees in writing for the
benefit of the NASD to be bound by the provisions of this SECTION 3.05(b) with
respect to such assets, (ii) any sale, transfer or disposition of assets of
Nasdaq in connection with a joint venture, strategic alliance or other similar
arrangement, in any such case, the primary purpose of which is other than the
raising of capital for Nasdaq and the consideration involved in such transaction
is not predominantly comprised of cash, in each case as determined in good faith
by the board of directors of Nasdaq (the "BOARD OF DIRECTORS") and (iii) any
sale of any interest in the capital stock of Nasdaq or any sale by a subsidiary,
other than a Restricted Subsidiary, of any interest in its capital stock.
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For purposes of this Agreement, the term "RESTRICTED SUBSIDIARY" means
any direct or indirect subsidiary of Nasdaq other than (i) any subsidiary set
forth on Schedule A hereto; PROVIDED, HOWEVER, that Quadsan Enterprises Inc.
("QUADSAN") shall not be permitted to issue any long-term debt, issue any
interests in its capital stock, or sell, transfer or otherwise dispose of its
assets for cash outside the ordinary course of its business and; PROVIDED,
FURTHER, that any purchase, sale or transfer of any marketable securities in the
ordinary course of business by Quadsan shall not be deemed to be subject to
SECTION 3.5 and (ii) any subsidiary that is formed in connection with a joint
venture, strategic alliance or other similar arrangement and the primary purpose
of which is other than the raising of capital, as determined in good faith by
the Board of Directors.
4. REPRESENTATIONS AND WARRANTIES OF THE NASD. The NASD represents and
warrants to Nasdaq as follows:
4.01 ORGANIZATION AND STANDING. The NASD is a non-profit corporation
duly incorporated, validly existing and in good standing under the laws of the
State of Delaware.
4.02 BINDING AGREEMENT. This Agreement will be duly and validly
executed and delivered on behalf of the NASD and, assuming due authorization,
execution and delivery by Nasdaq, will constitute the legal and binding
obligation of the NASD enforceable against the NASD in accordance with its
terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally and to general equity principles (whether considered
in a proceeding in equity or at law).
4.03 TITLE TO SHARES. The NASD has good and valid title to the Shares,
free and clear of all liens, charges, claims, security interests, restrictions,
options, proxies, voting trusts or other encumbrances (each an "ENCUMBRANCE"),
other than Encumbrances created by this Agreement and the Investor Rights
Agreement. Assuming Nasdaq has the requisite power and authority to be lawful
owner of the Shares, upon delivery to Nasdaq at the Stage One Closing and the
Stage Two Closing, as applicable, of certificates representing the Stage One
Shares and Stage Two Shares, as applicable, and upon the NASD's receipt of the
applicable Purchase Price for the Shares, Nasdaq will acquire all of the NASD's
right, title and interest in and to the Shares being sold to it and will receive
good and valid title to the Shares, free and clear of any and all Encumbrances.
4.04 ACQUISITION OF THE PREFERRED STOCK. The NASD is acquiring the
shares of Preferred Stock not with a view toward, or for the sale in connection
with, any distribution in violation of the Securities Act of 1933, as amended
(the "SECURITIES ACT"). The NASD acknowledges and agrees that (i) for the period
of one year following the original issuance of the Series A Preferred Stock (the
"NO TRANSFER PERIOD"), the Series A Preferred Stock may not be sold,
transferred, offered for sale, pledged, hypothecated or otherwise disposed of
(each, a "TRANSFER") without the prior written consent of Nasdaq, (ii) following
the No Transfer Period, the Series A Preferred Stock may not be Transferred
without registration under the Securities Act and any
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applicable state securities laws or regulations, except pursuant to an exemption
from such registration under the Securities Act and any applicable state
securities laws or regulations, (iii) certain contractual restrictions may
restrict its ability to Transfer the shares of Series A Preferred Stock and (iv)
the Series B Preferred Stock may not be Transferred.
4.05 LEGENDS.
(a) The NASD acknowledges and agrees that prior to the one-year
anniversary date of the Stage Two Closing Date, any certificate evidencing the
shares of Series A Preferred Stock shall bear a legend substantially as follows:
THE SHARES OF SERIES A PREFERRED STOCK, PAR VALUE $.01 PER SHARE, OF
THE NASDAQ STOCK MARKET, INC. REPRESENTED BY THIS CERTIFICATE MAY NOT
BE OFFERED, SOLD OR TRANSFERRED BY THE HOLDER HEREOF PRIOR TO THE
ONE-YEAR ANNIVERSARY DATE OF ITS ORIGINAL ISSUANCE WITHOUT THE PRIOR
WRITTEN CONSENT OF THE NASDAQ STOCK MARKET, INC.
(b) The NASD acknowledges and agrees that, upon its request, until no
longer required by applicable law, following the No Transfer Period, the
certificates evidencing the shares of Series A Preferred Stock may be replaced
with certificates bearing a legend substantially as follows:
THE SHARES OF SERIES A PREFERRED STOCK, PAR VALUE $.01 PER SHARE, OF
THE NASDAQ STOCK MARKET, INC. REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER
THE SECURITIES LAWS OF ANY STATE OR FOREIGN JURISDICTION AND MAY NOT
BE OFFERED, SOLD OR TRANSFERRED WITHOUT COMPLIANCE WITH APPLICABLE
FEDERAL, STATE OR FOREIGN SECURITIES LAWS.
(c) The NASD acknowledges and agrees that, until no longer required by
applicable law, the certificates evidencing the share of Series B Preferred
Stock shall bear a legend substantially as follows:
THE SHARE OF SERIES B PREFERRED STOCK, PAR VALUE $.01 PER SHARE, OF
THE NASDAQ STOCK MARKET, INC. REPRESENTED BY THIS CERTIFICATE MAY NOT
BE OFFERED, SOLD OR TRANSFERRED BY THE HOLDER HEREOF.
4.06 REQUIRED APPROVALS, NOTICES AND CONSENTS. Except as set forth
herein, no material consent or approval of, other action by, or any notice to,
any governmental body or agency, domestic or foreign, or any third party is
required in connection with the execution and
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delivery by the NASD of this Agreement or the consummation by the NASD of the
transaction contemplated hereby.
5. REPRESENTATIONS AND WARRANTIES OF NASDAQ. Nasdaq represents and
warrants to the NASD as follows:
5.01 ORGANIZATION AND STANDING. Nasdaq is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware.
5.02 PREFERRED STOCK. At the Stage One Closing Date, the shares of
Preferred Stock will have been duly authorized and, when transferred to the NASD
in accordance with this Agreement on the Stage One Closing Date, will be validly
issued, fully paid and nonassessable and the issuance of such shares will not be
subject to any preemptive or similar rights.
5.03 BINDING AGREEMENT. This Agreement will have been duly and validly
authorized, executed and delivered by Nasdaq and, assuming due authorization,
execution and delivery by the NASD, will constitute the legal and binding
obligation of Nasdaq enforceable against Nasdaq in accordance with its terms,
subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other laws relating to or affecting creditors'
rights generally and to general equity principles (whether considered in a
proceeding in equity or at law).
5.04 REQUIRED APPROVALS, NOTICES AND CONSENTS. Except as set forth
herein, no material consent or approval of, other action by, or any notice to,
any governmental body or agency, domestic or foreign, or any third party is
required in connection with the execution and delivery by Nasdaq of this
Agreement or the consummation by Nasdaq of the transaction contemplated hereby.
6. CONDITIONS TO OBLIGATIONS OF THE NASD. The obligations of the NASD
are subject to the fulfillment on or prior to the Stage Two Closing as follows,
except, to the extent permitted by applicable law, as may be waived by the NASD
pursuant to SECTION 9.06 hereof:
6.01 STATUTES, RULES AND REGULATIONS. No statute, rule, regulation or
order of any court or administrative agency shall be in effect which prohibits
the consummation of the transactions contemplated hereby.
7. CONDITIONS TO OBLIGATIONS OF NASDAQ. The obligations of Nasdaq are
subject to the fulfillment on or prior to the Stage Two Closing as follows,
except, to the extent permitted by applicable law, as may be waived by Nasdaq
pursuant to SECTION 9.06 hereof:
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7.01 STATUTES, RULES AND REGULATIONS. No statute, rule, regulation or
order of any court or administrative agency shall be in effect which prohibits
the consummation of the transactions contemplated hereby.
7.02 SEC OBJECTION. The SEC shall have not objected, disapproved or
otherwise expressed disfavor to Nasdaq, whether in writing or orally, with
respect to the Series A Certificate of Designations or the Series B Certificate
of Designations.
8. TERMINATION.
8.01 TERMINATION. This Agreement may be terminated at any time prior
to the Stage Two Closing:
(a) by the mutual written consent of the parties; and
(b) by either party in the event the Stage Two Closing has not
occurred on or before May 20, 2002, unless the failure of such consummation
shall be due to a breach of this Agreement by the party seeking to terminate
this Agreement.
8.02 EFFECT OF TERMINATION. In the event of the termination of this
Agreement pursuant to SECTION 8.01, this Agreement shall forthwith become void,
and there shall be no liability on the part of any party hereto (or any
stockholder, director, officer, partner, employee, agent, consultant or
representative of such party) except that (a) nothing herein shall relieve any
party from liability for, or eliminate the rights of any party relating to, any
willful breach of this Agreement and (b) this SECTION 8.02 and SECTIONS 9.01,
9.02, 9.03 and 9.09 shall survive termination of this Agreement.
9. MISCELLANEOUS.
9.01 ENTIRE AGREEMENT. This Agreement, the Investor Rights Agreement
and all schedules, attachments and exhibits embody the entire agreement and
understanding of the parties with respect to the subject matter hereof and
supersede any and all prior agreements, arrangements and undertakings, whether
written or oral, relating to matters provided for herein and therein (including
those set forth in the term sheet dated as of January 15, 2002 between the
parties). There are no provisions, undertakings, representations or warranties
relative to the subject matter of this Agreement not expressly set forth herein
and therein.
9.02 EXPENSES. Except as otherwise specifically provided in this
Agreement, all costs and expenses, including, without limitation, fees and
disbursements of counsel, financial advisors and accountants, incurred in
connection with this Agreement and the transaction contemplated hereby shall be
paid by the party incurring such expense.
9.03 NOTICES. Any notice, demand, claim, notice of claim, request or
communication required or permitted to be given under the provisions of this
Agreement shall be in
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writing and shall be deemed to have been duly given if delivered personally by
facsimile transmission or sent by first class or certified mail, postage prepaid
to the following addresses,
If to the NASD:
National Association of Securities Dealers, Inc.
1735 K Street, N.W.
Washington, D.C. 20006
Facsimile: (202) 728-8894
Attention: General Counsel
with a copy to:
Shearman & Sterling
599 Lexington Avenue
New York, New York 10022
Facsimile: (212) 848-7179
Attention: Robert Mundheim, Esq. and
James B. Bucher, Esq.
If to Nasdaq:
The Nasdaq Stock Market, Inc.
One Liberty Plaza
New York, New York 10006
Facsimile: (212) 858-5150
Attention: General Counsel
with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036
Facsimile: (212) 735-2000
Attention: Matthew J. Mallow, Esq. and
Eric J. Friedman, Esq.
or to such other address as any party may request by notifying in writing all of
the other parties to this Agreement in accordance with this SECTION 9.03.
Any such notice shall be deemed to have been received on the date of
personal delivery, the date set forth on the Postal Service return receipt, the
date of delivery shown on the records of the overnight courier or the date shown
on the facsimile confirmation, as applicable.
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9.04 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties made by the parties in this Agreement shall
terminate 12 months after the Stage Two Closing.
9.05 BENEFIT AND ASSIGNMENT. This Agreement will be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns. There shall be no assignment of any interest under this
Agreement by any party. Nothing herein, express or implied, is intended to or
shall confer upon any other person any legal or equitable right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement.
9.06 WAIVER. Any waiver of any provision of this Agreement shall be
valid only if set forth in an instrument in writing signed by the party to be
bound thereby. Any waiver of any term or condition shall not be construed as a
waiver of any subsequent breach or a subsequent waiver of the same term or
condition, or a waiver of any other term or condition, of this Agreement. The
failure of any party to assert any of its rights hereunder shall not constitute
a waiver of any such rights.
9.07 AMENDMENT. This Agreement may not be amended or modified except
by an instrument in writing signed by, or on behalf of, the NASD and Nasdaq.
9.08 CONSTRUCTION OF THIS AGREEMENT; COUNTERPARTS. The language used
in this Agreement shall be deemed to be the language chosen by the parties
hereto to express their mutual agreement, and this Agreement shall not be deemed
to have been prepared by any single party hereto. The headings of the sections
and subsections of this Agreement are inserted as a matter of convenience and
for reference purposes only and in no respect define, limit or describe the
scope of this Agreement or the intent of any section or subsection. This
Agreement may be executed in one or more counterparts and by the different
parties hereto in separate counterparts, each of which when executed shall be
deemed to be an original but all of which taken together shall constitute one
and the same agreement.
9.09 GOVERNING LAW. This Agreement shall be governed by, and construed
and enforced in accordance with, the internal laws of the State of New York
applicable to contracts executed and to be performed in the State of New York.
9.10 PUBLIC ANNOUNCEMENTS. No party hereto shall make any public
announcement concerning the transactions contemplated by this Agreement without
the prior approval of the other party hereto, except as such announcement may be
required by the applicable laws, rules and regulations. The parties hereto
acknowledge that promptly after the execution of this Agreement and each of the
Stage One Closing and the Stage Two Closing, the parties will make public
disclosure, to be mutually agreed upon, of the transactions contemplated by this
Agreement.
9.11 SPECIFIC PERFORMANCE. The parties recognize and agree that if for
any reason any of the provisions of this Agreement are not performed in
accordance with their
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specific terms or are otherwise breached, immediate and irreparable harm or
injury would be caused for which money damages would not be an adequate remedy.
Accordingly, each party agrees that, in addition to any other available
remedies, each other party shall be entitled to an injunction restraining any
violation or threatened violation of the provisions of this Agreement without
the necessity of posting a bond or other form of security. In the event that any
action should be brought in equity to enforce the provisions of the Agreement,
no party will allege, and each party hereby waives the defense, that there is an
adequate remedy at law.
9.12 FURTHER ASSURANCES. The NASD hereby agrees that it shall from
time to time, at the request of Nasdaq, execute and deliver to Nasdaq any and
all instruments or documents as Nasdaq may reasonably request for the purpose of
vesting in Nasdaq the full right, title and interest of the NASD in and to the
Shares.
[Signature page follows]
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IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the date first above written.
NATIONAL ASSOCIATION OF
SECURITIES DEALERS, INC.
By: /s/ Douglas Shulman
----------------------------
Name: Douglas Shulman
Title: Executive Vice President
THE NASDAQ STOCK MARKET, INC.
By: /s/ Edward S. Knight
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Name: Edward S. Knight
Title: Executive Vice President and
General Counsel
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Exhibit I
to
Purchase and Sale Agreement
FORM OF SERIES A CERTIFICATE OF DESIGNATIONS
[Previously Filed]
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Exhibit II
to
Purchase and Sale Agreement
FORM OF SERIES B CERTIFICATE OF DESIGNATIONS
[Previously Filed]
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Schedule A
to
Purchase and Sale Agreement
LIST OF NON-RESTRICTED SUBSIDIARIES
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SCHEDULE A
1. Nasdaq Tools, Inc.
2. Quadsan Enterprises Inc.
3. Nasdaq Global Holdings
4. Nasdaq Global Technology, Ltd.
5. Nasdaq International Ltd.
6. Nasdaq Ltda
7. Nasdaq Europe Planning Company Ltd.
8. Nasdaq Japan, Inc.
9. Nasdaq Europe S.A./N.V.
10. IndigoMarkets Ltd.
11. IndigoMarkets India Private Ltd.
12. Nasdaq Financial Products Services, Inc.
13. Nasdaq International Market Initiatives, Inc.
14. Nasdaq Canada, Inc.
15. Nasdaq Educational Foundation Inc.
16. Nasdaq-BIOS R&D Joint Venture
A-1