This excerpt taken from the NDAQ 8-K filed Nov 16, 2007.
REPRESENTATIONS AND WARRANTIES OF NASDAQ
Nasdaq hereby represents and warrants to DIFX as follows:
(a) Nasdaq understands that the offering and sale of the DIFX Shares is intended to be exempt from registration under the Securities Act pursuant to Section 4(2) of the Securities Act.
(b) The DIFX Shares to be acquired by Nasdaq pursuant to this DIFX Agreement are being acquired for its own account and without a view to the resale or distribution of such DIFX Shares or any interest therein other than pursuant to this DIFX Agreement or the DIFX Ancillary Agreements or in a transaction exempt from, or not subject to, registration under the Securities Act.
(c) Nasdaq is an accredited investor as such term is defined in Regulation D.
(d) Nasdaq has sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risks of its investment in the DIFX Shares and is capable of bearing the economic risks of such investment, including a complete loss of its investment in the DIFX Shares.
(e) In evaluating the suitability of an investment in the DIFX Shares, Nasdaq has not relied upon any representations or other information (whether oral or written) made by or on behalf of DIFX other than as set forth in this DIFX Agreement.
Section 4.02 Corporate Existence and Power. Nasdaq is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware, and has all material governmental licenses, permits, consents and approvals required to carry on its business as now conducted. Nasdaq is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction where such qualification is necessary, except for those jurisdictions where failure to be so qualified would not, individually or in the aggregate, be material to Nasdaq.
Section 4.03 Authority. The execution, delivery and performance of this DIFX Agreement, and each of the DIFX Ancillary Agreements to which Nasdaq will be a Party are, within Nasdaqs powers and have been duly
authorized by all requisite corporate action and, assuming due authorization, execution and delivery by DIFX and Borse Dubai, constitutes, and upon their execution each of the DIFX Ancillary Agreements to which Nasdaq will be a Party will constitute, legal, valid and binding agreements of Nasdaq enforceable against it in accordance with their respective terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws relating to or affecting creditors generally or by general equity principles (regardless of whether such enforceability is considered in a Proceeding in equity or at law).
Section 4.04 Governmental Authorization. Except as set forth on Schedule 4.04, the execution, delivery and performance by Nasdaq of this DIFX Agreement and each of the DIFX Ancillary Agreements to which Nasdaq will be a Party and the consummation by Nasdaq of the transactions contemplated hereby and thereby requires no action by the Parties in respect of, or filing with, any Authority other than such actions or filings which have been taken or made prior to the date hereof.
Section 4.05 Non-contravention. The execution, delivery and performance by Nasdaq of this DIFX Agreement and each of the DIFX Ancillary Agreements to which Nasdaq will be a Party and the consummation by Nasdaq of the transactions contemplated hereby and thereby do not and will not (a) violate the organizational documents of Nasdaq; (b) assuming compliance with the matters referred to in Section 4.04, violate any applicable law, rule, regulation, judgment, injunction, order or decree; (c) require any consent or other action by any Person under, constitute a default under, or give rise to any right of termination, cancellation or acceleration of any right or obligation of Nasdaq or any of its Subsidiaries or to a loss of any benefit to which Nasdaq or any of its Subsidiaries is entitled under any provision of any material agreement or other instrument binding upon Nasdaq or any of its Subsidiaries; or (d) result in the creation or imposition of any Lien on any asset of Nasdaq or any of its Subsidiaries except in the cases of clauses (b), (c) and (d) above for such conflicts, breaches, violations or defaults that would not be material, individually or in the aggregate, to Nasdaq.
Section 4.06 Financing. Nasdaq shall have at the Closing sufficient funds to permit it to consummate the transactions contemplated by this DIFX Agreement. Upon the Closing, the DIFX Shares acquired hereby will not be subject to any Lien. It shall not be a condition to Nasdaqs obligations to consummate the transactions contemplated hereby that Nasdaq have sufficient funds to acquire the DIFX Shares.
Section 4.07 No Brokers or Finders. Nasdaq has not incurred, and shall not incur, directly or indirectly, any liability for any brokerage or finders fees or agents commissions or any similar charges in connection with this DIFX Agreement, other than any of the foregoing which fees are the sole responsibility of Nasdaq.