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Exhibit
99.1
EXECUTION
VERSION
STOCK REPURCHASE AND WAIVER
AGREEMENT
This Stock Repurchase and
Waiver Agreement is made and entered into as of April 21, 2005
(this “Agreement”) by and between The Nasdaq Stock
Market, Inc., a Delaware corporation (“ Nasdaq
”), and National Association of Securities Dealers, Inc., a
Delaware non-profit corporation (“ NASD ”), and
relates to shares of Nasdaq’s Series C Cumulative Preferred
Stock, par value $.01 per share (“ Series C Stock
”), issued to NASD pursuant to the Exchange Agreement dated
as of November 29, 2004 between Nasdaq and NASD (the “
Exchange Agreement ”). Capitalized terms used but not
otherwise defined herein shall have the meanings set forth in the
Exchange Agreement.
WHEREAS, concurrently
herewith, Nasdaq is entering into (i) an Agreement and Plan of
Merger, dated as of the date hereof (the “ Merger
Agreement ”), by and among Nasdaq, Norway Acquisition
Corp., a wholly-owned subsidiary of Nasdaq and a Delaware
corporation (“ Merger Sub ”), and Instinet Group
Incorporated, a Delaware corporation (“ Instinet
”), and (ii) a Transaction Agreement, dated as of the date
hereof (the “ Transaction Agreement ”), by and
among Nasdaq, Merger Sub, and a Delaware limited liability company
to be organized (“ Newco LLC ”), for the sale of
certain assets to Newco LLC (the “ Sale ”)
(collectively, the “ Transactions ”);
WHEREAS, pursuant to the
Exchange Agreement, Nasdaq is restricted from incurring long-term
debt and from undertaking Extraordinary Asset Sales, in each case
subject to certain exceptions, without the prior written consent of
NASD;
WHEREAS, Nasdaq desires to
finance the Transactions by entering into a senior secured credit
facility, issuing convertible notes and restructuring its 4%
subordinated convertible notes due 2006 (collectively, the “
Financing ”), and has requested that NASD waive
compliance with the restrictions on the incurrence of long-term
debt by Nasdaq provided for in the Exchange Agreement in order to
enable Nasdaq to undertake the Financing;
WHEREAS, in the event that
the Sale constitutes an Extraordinary Asset Sale, Nasdaq has
requested that NASD waive compliance with the restrictions on
Extraordinary Asset Sales by Nasdaq provided for in the Exchange
Agreement in order to enable Nasdaq to consummate the Sale;
and
WHEREAS, in consideration for
NASD’s willingness to waive compliance with the restrictions
in the Exchange Agreement requested by Nasdaq, Nasdaq is willing to
repurchase from NASD 384,932 shares (the “ Shares
”) of the 1,338,402 shares of Series C Stock currently owned
by NASD;
NOW THEREFORE, in
consideration of the mutual covenants and agreements set forth
herein, it is agreed as follows:
1. Sale of the Shares
. No later than 4:00 p.m., New York time, on the day next
succeeding (the “ Closing Date ”) the hereof,
NASD agrees to sell to Nasdaq and Nasdaq agrees to purchase from
NASD the Shares (the time of such sale and purchase being referred
to herein as the “ Closing Time ”). NASD agrees
to execute such stock powers and other instruments of conveyance as
may be reasonably requested by Nasdaq in order to effectuate the
transfer of the Shares.
2. Consideration . At
the Closing Time, Nasdaq agrees to pay to NASD $39,999,994.93 in
full consideration for the Shares, including any accrued and unpaid
dividends and Additional Redemption Amounts (as defined in the
Certificate of Designations, Preferences and Rights of the Series C
Stock) due thereon.
3. New Stock
Certificate . Immediately upon consummation of the sale of
Shares provided for hereunder, Nasdaq shall issue and deliver to
NASD a new certificate representing the remaining 953,470 shares of
Series C Stock owned by NASD.
4. Waiver and Consent
. NASD agrees that, solely with respect to (a) the Financing, which
will constitute a Long-Term Debt Incurrence of Nasdaq and when
aggregated with the long-term debt assumed pursuant to the
Transaction by Nasdaq and its Re
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