This excerpt taken from the NDAQ 8-K filed Mar 3, 2008.
Nasdaq Stockholders Agreement
Nasdaq and Borse Dubai entered into the Nasdaq Stockholders Agreement, which governs the shares of Nasdaq common stock, par value $0.01 per share (Nasdaq Common Stock) issued to Borse Dubai as partial consideration in the acquisition of OMX from Borse Dubai. Simultaneously with entering into the agreement, Borse Dubai acquired Nasdaq Common Stock representing 19.99% of the total Nasdaq Common Stock outstanding on a fully-diluted basis.
Under the terms of the Nasdaq Stockholders Agreement, Borse Dubai is restricted from transferring any of the Nasdaq Common Stock it acquired for a period of one year from the date of the Nasdaq Stockholders Agreement, subject to certain exceptions for transfers to, among others, its affiliates, Nasdaq and to the Borse Dubai Nasdaq Share Trust, a Delaware statutory trust (the Trust), under certain circumstances. Additionally, at no time may Borse Dubai transfer any Nasdaq Common Stock to a competitor of Nasdaq, other than in a change of control of Nasdaq, a public offering or sale pursuant to Rule 144 under the Securities Act or in limited circumstances involving not more than 5% of the outstanding Nasdaq Common Stock. During the 18 months following the date of the Nasdaq Stockholders Agreement, Borse Dubai may participate pro rata in any repurchases by Nasdaq of Nasdaq Common Stock or may contribute Nasdaq Common Stock to the Trust, in each case in order to maintain its ownership percentage of Nasdaq at or below 19.99%.
For as long as the Trust continues to hold any shares of Nasdaq Common Stock, Borse Dubai has agreed to use its reasonable best efforts to cause the Trust to dispose of its Nasdaq Common Stock. However, Borse Dubai has no obligation to cause the Trust to dispose of any shares of Nasdaq Common Stock if the net amount that the Trust would receive from any sale of such shares is less than $51.52, the agreed-upon floor price. This implied share price is based upon the Swedish kronor/United States dollar exchange rate on the date of the Nasdaq Stockholders Agreement, and is subject to adjustment upward based upon certain reasonable expenses of the Trust and a 6% cost of capital, and downward for any distributions made by Nasdaq.
As long as Borse Dubai maintains at least one-half of its initial 19.99% ownership of Nasdaq, Borse Dubai will be entitled to propose for nomination two directors for election to Nasdaqs Board of Directors, and Nasdaq will use its reasonable best efforts to ensure that one designee of Borse Dubai will be appointed to the Audit, Executive, Finance, and Management Compensation committees of Nasdaqs Board of Directors and that one designee of Borse Dubai will be appointed to the Nominating Committee of Nasdaqs Board of Directors, in each case subject to applicable law, regulation, stock exchange listing standard or committee composition standard.
As long as Borse Dubai maintains at least 25% of its initial 19.99% investment, Borse Dubai will be entitled to nominate one director for election to Nasdaqs Board of Directors, but will have no right to appoint members of any committees of Nasdaqs Board of Directors.
Under the terms of the Nasdaq Stockholders Agreement, until the earliest to occur (the Standstill Termination Date), of:
Borse Dubai will be restricted from (i) acquiring shares in excess of 19.99% on a fully-diluted basis of Nasdaq, (ii) soliciting proxies with respect to Nasdaq, (iii) proposing or seeking to effect a merger or change of control of Nasdaq, (iv) making public statements or otherwise directly or indirectly seeking to control the management or policies of Nasdaq or its subsidiaries or seeking additional board representatives or removal of directors, (v) forming a group with respect to Nasdaq or (vi) otherwise acting in concert with others regarding any of the foregoing.
In addition, if any third party makes a tender or exchange offer that is not recommended against by the Nasdaqs Board of Directors, after 10 business days Borse Dubai may tender into that offer.
At any time prior to the Standstill Termination Date, if Nasdaq effects an issuance of Nasdaq Common Stock or any securities exchangeable for, or convertible into, Nasdaq Common
Stock in any capital raising transaction, which we refer to as a preemptive issuance, that would cause Borse Dubai to own less than 19.99% (as may be reduced in certain circumstances) of Nasdaq Common Stock calculated on a fully diluted basis, Borse Dubai will have the right to purchase securities in such issuance to maintain the same total voting power as Borse Dubai owned immediately prior to such issuance. Borse Dubais purchase rights will not apply to the following issuances: