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 l
