SHARE PURCHASE AND SALE AGREEMENT
Exhibit 7.10
EXECUTION VERSION
Date:
|
December 16, 2010 | |
To:
|
Nomura International plc (“Buyer”) | |
| Xxxxxx Xxxxx | ||
| 0 Xx Xxxxxx’s-le-Grand | ||
| Xxxxxx XX0X 0XX | ||
From:
|
Borse Dubai Limited (“Seller”) | |
| P.O. Box 506690 | ||
| Xxxxx 0, Xxxxxxxx Xxxxxxxx 0, Xxxx Xxxxxxxx | ||
| Xxxxx International Financial Centre | ||
| Dubai, UAE | ||
| Facsimile No.: x000 0 000 0000 | ||
Telephone No.:
|
x000 0 000 0000 | |
Attention:
|
Essa Kazim |
The purpose of this share purchase and sale agreement (this “Agreement”) is to set forth the
terms and conditions of the purchase (the “Purchase”) by Buyer, and sale by Seller, of shares of
common stock, $.01 par value per share, of The NASDAQ OMX Group, Inc. (each, a “Share”).
1. Share Purchase and Sale.
Seller agrees to sell to Buyer, and Buyer agrees to buy from Seller, 8,000,000 Shares (the
“Purchased Shares”) at a price per Share equal to $21.82, less the arrangement fee of $0.11, for a
total cash payment equal to $173,680,000.00 (the “Aggregate Purchase Price”). Closing of the
Purchase shall take place on December 21, 2010 (the “Closing Date”) simultaneously with a sale of
22,781,000 Shares (the “Redemption”) by Seller to The NASDAQ OMX Group, Inc. (“NASDAQ”) in
accordance with the Closing Agreement dated December 16, 2010 by and among HSBC (“HSBC”), Buyer,
Seller, Nomura Securities International, Inc., Borse Dubai Nasdaq Share Trust and NASDAQ (the
“Closing Agreement”).
Both parties acknowledge that the sale of the Purchased Shares and the Redemption are being
entered into in contemplation of each other as part of a single plan of disposal.
2. Representations, Warranties and Acknowledgements.
(a) Each party represents and warrants to the other party that:
(i) It is duly organized and validly existing under the laws of the jurisdiction of its
organization or incorporation and, if relevant under such laws, in good standing.
(ii) It has the power to execute this Agreement and any other documentation relating to
this Agreement to which it is a party, to deliver this Agreement and any other documentation
relating to this Agreement that it is required by this Agreement to deliver and to perform
its obligations under this Agreement and has taken all necessary action to authorize such
execution, delivery and performance.
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(iii) Such execution, delivery and performance do not violate or conflict with any law
applicable to it, any provision of its constitutional documents, any order or judgment of
any court or other agency of government applicable to it or any of its assets or any
contractual restriction binding on or affecting it or any of its assets.
(iv) All governmental and other consents that are required to have been obtained by it
with respect to this Agreement have been obtained and are in full force and effect and all
conditions of any such consents have been complied with.
(v) Its obligations under this Agreement constitute its legal, valid and binding
obligations, enforceable in accordance with their respective terms (subject to applicable
bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors’
rights generally and subject, as to enforceability, to equitable principles of general
application, regardless of whether enforcement is sought in a proceeding in equity or at
law).
(b) Seller represents and warrants to, and agrees with, Buyer that Seller has, or will have at
the time of delivery of the Purchased Shares to Buyer, the right to transfer the Purchased Shares
as provided herein and that upon the payment by Buyer of the Aggregate Purchase Price for the
Purchased Shares and the delivery of certificates representing only the Purchased Shares to Buyer,
duly endorsed to Buyer or in blank, and assuming Buyer has no notice of any adverse claim to the
Purchased Shares (other than the lien in favor of HSBC, as global facility agent and security
trustee, as described more fully in the Closing Agreement, which, subject to the conditions
therein, will be released on the Closing Date), Buyer will be a “protected purchaser” (within the
meaning of Section 8-303 of the of the New York Uniform Commercial Code) of the Purchased Shares.
(c) Buyer hereby represents and warrants to Seller that:
(i) It is an “accredited investor” (as defined in Regulation D under the Securities Act
of 1933, as amended (the “Securities Act”)) and has such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and risks of the
Transaction, and it is able to bear the economic risk of the Transaction.
(ii) It is entering into the Transaction for its own account and not with a view to the
distribution or resale of the Transaction or its rights thereunder except pursuant to a
registration statement declared effective under, or an exemption from the registration
requirements of, the Securities Act.
3. Condition to Closing.
Buyer’s obligations to pay the Aggregate Purchase Price and consummate the Purchase on the
Closing Date shall be subject to the conditions:
(i) the Security Releaser (as defined in the Closing Agreement) shall have performed its
obligations under Section 3 of the Closing Agreement; and
(ii) Seller shall have caused Xxxxxx & Xxxxxxx LLP to deliver an opinion dated as of the
Closing Date substantially in the form set forth in Annex A.
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4. Governing Law.
THIS AGREEMENT, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS
AGREEMENT, WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REFERENCE TO CHOICE OF LAW DOCTRINE (OTHER THAN TITLE 14 OF THE NEW YORK GENERAL
OBLIGATIONS LAW). THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS
OF THE STATE OF NEW YORK AND THE UNITED STATES COURT FOR THE SOUTHERN DISTRICT OF NEW YORK IN
CONNECTION WITH ALL MATTERS RELATING HERETO AND WAIVE ANY OBJECTION TO THE LAYING OF VENUE IN, AND
ANY CLAIM OF INCONVENIENT FORUM WITH RESPECT TO, THESE COURTS.
5. Waiver of Trial by Jury.
EACH PARTY HEREBY IRREVOCABLY WAIVES (ON ITS OWN BEHALF AND, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, ON BEHALF OF ITS STOCKHOLDERS) ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE ACTIONS OF SELLER OR ITS AFFILIATES IN THE NEGOTIATION, PERFORMANCE OR ENFORCEMENT
HEREOF.
[Remainder of Page Intentionally Blank]
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This Agreement can be singed in multiple counterparts. Please confirm that the foregoing
correctly sets forth the terms of our agreement by signing and returning this Agreement.
| Yours faithfully, BORSE DUBAI LIMITED |
||||
| By: | /s/ Essa Kazim | |||
| Name: | Essa Kazim | |||
| Title: | Board Member | |||
| By: | /s/ Abdulaziz Al Muhairi | |||
| Name: | Abdulaziz Al Muhairi | |||
| Title: | Board Member | |||
| Confirmed as of the date first above written: NOMURA INTERNATIONAL PLC |
||||
| By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx | |||
| Title: | Authorized Signatory | |||
Annex A
[Form of Opinion of Xxxxxx & Xxxxxxx LLP, As Special DIFC Counsel for Seller]
(i) Seller is duly incorporated under the laws of the DIFC as a company limited by shares;
(ii) The execution of the Agreement has been duly authorised by all necessary corporate action on
the part of Seller;
(iii) Seller has the requisite corporate capacity to enter into the Agreement and to perform its
obligations thereunder;
(iv) The entry into, delivery and performance of its obligations under the Agreement by Seller does
not violate (a) any provision of its Amended and Restated Articles of Association adopted on 21
December 2009, and (b) any requirements of any existing DIFC Law applicable to Seller;
(v) There are no consents, approvals or authorisations required by Seller from any DIFC-based
governmental or other regulatory agencies under DIFC Law, in connection with the entry into and
performance by Seller of its obligations under the Agreement;
(vi) In any proceedings taken in the DIFC for the enforcement of the obligations of Seller under
the Agreement, the DIFC Courts would recognize the choice of law of the State of New York as a
valid choice for the governing law of the Agreement; and
(vii) A final and conclusive judgment against Seller for the payment of a specific sum of money
rendered by a court outside of the DIFC arising out of or in connection with the Agreement should
be recognized by and enforceable in a DIFC Court, subject to certain reservations.
The opinion will be subject to certain customary assumptions and reservations.
