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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)*
The Nasdaq Stock Market, Inc.
(Name of Issuer)
Common Stock, par value $0.01 per share
(Title of Class of Securities)
631103108
(CUSIP Number)
H&F Investors IV, LLC
One Maritime Plaza, 12th Floor
San Francisco, CA 94111
(415) 788-5111
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
December 8, 2005
(Date of Event Which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o
Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting persons initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed to be filed for the purpose of Section 18 of the Securities Exchange Act of 1934 (Act) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
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CUSIP No. 631103108 | Page 2 of 13 |
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1. |
Name of Reporting Person: H&F Investors IV, LLC |
I.R.S. Identification Nos. of above persons (entities only):
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2. |
Check the Appropriate Box if a Member of a Group (See Instructions): |
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(a) |
o |
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(b) |
þ |
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3. |
SEC Use Only: |
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4. |
Source of Funds (See Instructions): OO, BK |
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5. |
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e): o |
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6. |
Citizenship or Place of Organization: California |
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Number of Shares Beneficially Owned by Each Reporting Person With |
7. |
Sole Voting Power: 24,594,650** |
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8. | Shared Voting Power: -0- |
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9. | Sole Dispositive Power: 24,594,650** |
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10. | Shared Dispositive Power: -0- |
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11. | Aggregate Amount Beneficially Owned by Each Reporting Person: 24,594,650** |
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12. | Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions): o |
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13. | Percent of Class Represented by Amount in Row (11): 23.2%** |
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14. | Type of Reporting Person (See Instructions): OO |
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**See Item 5 below
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CUSIP No. 631103108 | Page 3 of 13 |
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1. |
Name of Reporting Person: Hellman & Friedman Capital Partners IV, L.P. |
I.R.S. Identification Nos. of above persons (entities only):
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2. |
Check the Appropriate Box if a Member of a Group (See Instructions): |
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(a) |
o |
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(b) |
þ |
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3. |
SEC Use Only: |
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4. |
Source of Funds (See Instructions): OO, BK |
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5. |
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e): o |
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6. |
Citizenship or Place of Organization: California |
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Number of Shares Beneficially Owned by Each Reporting Person With |
7. |
Sole Voting Power: 19,821,656** |
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8. | Shared Voting Power: 5,000** |
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9. | Sole Dispositive Power: 19,821,656** |
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10. | Shared Dispositive Power: 5,000** |
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11. | Aggregate Amount Beneficially Owned by Each Reporting Person: 19,826,656** |
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12. | Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions): þ |
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13. | Percent of Class Represented by Amount in Row (11): 19.5%** |
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14. | Type of Reporting Person (See Instructions): PN |
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**See Item 5 below
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CUSIP No. 631103108 | Page 4 of 13 |
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1. |
Name of Reporting Person: H&F Executive Fund IV, L.P. |
I.R.S. Identification Nos. of above persons (entities only):
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2. |
Check the Appropriate Box if a Member of a Group (See Instructions): |
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(a) |
o |
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(b) |
þ |
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3. |
SEC Use Only: |
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4. |
Source of Funds (See Instructions): OO, BK |
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5. |
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e): o |
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6. |
Citizenship or Place of Organization: California |
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Number of Shares Beneficially Owned by Each Reporting Person With |
7. |
Sole Voting Power: 440,860** |
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8. | Shared Voting Power: 5,000** |
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9. | Sole Dispositive Power: 440,860** |
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10. | Shared Dispositive Power: 5,000** |
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11. | Aggregate Amount Beneficially Owned by Each Reporting Person: 445,860** |
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12. | Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions): þ |
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13. | Percent of Class Represented by Amount in Row (11): 0.5%** |
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14. | Type of Reporting Person (See Instructions): PN |
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**See Item 5 below
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CUSIP No. 631103108 | Page 5 of 13 |
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1. |
Name of Reporting Person: H&F International Partners IV-A, L.P. |
I.R.S. Identification Nos. of above persons (entities only):
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2. |
Check the Appropriate Box if a Member of a Group (See Instructions): |
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(a) |
o |
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(b) |
þ |
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3. |
SEC Use Only: |
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4. |
Source of Funds (See Instructions): OO, BK |
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5. |
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e): o |
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6. |
Citizenship or Place of Organization: California |
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Number of Shares Beneficially Owned by Each Reporting Person With |
7. |
Sole Voting Power: 3,253,819** |
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8. | Shared Voting Power: 5,000** |
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9. | Sole Dispositive Power: 3,253,819** |
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10. | Shared Dispositive Power: 5,000** |
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11. | Aggregate Amount Beneficially Owned by Each Reporting Person: 3,258,819** |
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12. | Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions): þ |
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13. | Percent of Class Represented by Amount in Row (11): 3.8%** |
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14. | Type of Reporting Person (See Instructions): PN |
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**See Item 5 below
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CUSIP No. 631103108 | Page 6 of 13 |
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1. |
Name of Reporting Person: H&F International Partners IV-B, L.P. |
I.R.S. Identification Nos. of above persons (entities only):
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2. |
Check the Appropriate Box if a Member of a Group (See Instructions): |
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(a) |
o |
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(b) |
þ |
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3. |
SEC Use Only: |
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4. |
Source of Funds (See Instructions): OO, BK |
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5. |
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e): o |
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6. |
Citizenship or Place of Organization: California |
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Number of Shares Beneficially Owned by Each Reporting Person With |
7. |
Sole Voting Power: 1,078,315** |
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8. | Shared Voting Power: 5,000** |
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9. | Sole Dispositive Power: 1,078,315** |
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10. | Shared Dispositive Power: 5,000** |
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11. | Aggregate Amount Beneficially Owned by Each Reporting Person: 1,083,315** |
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12. | Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions): þ |
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13. | Percent of Class Represented by Amount in Row (11): 1.3%** |
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14. | Type of Reporting Person (See Instructions): PN |
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**See Item 5 below
TABLE OF CONTENTS
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CUSIP No. 631103108 |
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SCHEDULE 13D/A |
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Page 7 of 13 |
This
Amendment No. 1 amends Items 2, 3, 5 and 6 of the Statement on Schedule 13D
filed on May 2, 2005 by H&F Investors IV, LLC (H&F Investors), Hellman & Friedman Capital
Partners IV, L.P. (HFCP IV), H&F Executive Fund IV, L.P. (HFEF IV), H&F
International Partners IV-A, L.P. (HFIP IV-A) and H&F International Partners IV-B, L.P.
(HFIP IV-B, and together with HFCP IV, HFEF IV and HFIP IV-A, the H&F
Partnerships, and together with H&F Investors, the Reporting Persons) relating to
the shares of common stock, par value $0.01 per share (the Common Stock), of The Nasdaq
Stock Market, Inc. (the Issuer).
Unless otherwise indicated, each capitalized term used but not otherwise defined herein shall
have the meaning assigned to such term in the Statement on Schedule 13D filed on May 2, 2005.
Item 2 Identity
and Background.
Item
2 is amended by deleting the two occurrences of the word
managing from the third paragraph.
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Item 3 |
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Source and Amount of Funds or Other Consideration. |
Item 3 is hereby amended and supplemented by inserting the following before the penultimate
paragraph thereof:
The Merger Closing occurred on December 8, 2005. In connection with the Merger Closing, the
H&F Partnerships subscribed to additional membership interests issued by Norway Holdings in the
aggregate of $60,000,000 pursuant to the Subscription Agreement. The source of funds for such
Additional Subscription by each of the H&F Partnerships was the capital contributions of the
partners of such H&F Partnerships. The H&F Partnerships equity contributions of $60,000,000,
together with equity contributions made by the SLP Entities, were used by Norway Holdings to
subscribe to additional membership interests issued by Norway SPV in an aggregate amount of
$205,000,000 pursuant to a subscription agreement, dated as of April 22, 2005, between Norway SPV
and Norway Holdings. Norway Holdings equity contribution was then used to repay the outstanding
principal amount of the Loan.
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Item 5 |
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Interest in Securities of the Issuer. |
Item 5
is hereby amended and restated by deleting it in its entirety and replacing it with
the following:
The information set forth or incorporated by reference in Items 2, 3, 4 and 6 is hereby
incorporated herein by reference.
(a), (b) The information contained on the cover pages to this Amendment No. 1 to Schedule 13D
is incorporated herein by reference. The following disclosure assumes that there are 82,011,757
shares of Common Stock outstanding, which the Issuer represented in its Quarterly Report on Form
10-Q for the quarter ended September 30, 2005 was the number of outstanding shares of Common Stock
as of October 31, 2005.
Prior to the Merger Closing, the Series A Notes and the Series A Warrants were directly owned
by Norway SPV. Upon the Merger Closing, Norway SPV distributed these securities by assigning its
entire right, title and interest in the Series A Notes and the Series A Warrants to its sole
member, Norway Holdings. Immediately thereafter, Norway Holdings
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CUSIP No. 631103108 |
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SCHEDULE 13D/A |
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Page 8 of 13 |
distributed these securities by assigning its entire right, title and interest in the Series A
Notes and the Series A Warrants to its members, the H&F Partnerships and the SLP Entities, in the
aggregate amounts set forth in the Subscription Agreements and in the respective percentages set
forth in the Limited Liability Company Agreement of Norway Holdings (the Holdings LLC
Agreement). As a result of these distributions by Norway SPV and Norway Holdings,
respectively, the H&F Partnerships directly own the Series A Notes and the Series A Warrants as
follows:
(i) HFCP IV $48,365,842 aggregate principal amount of Series A Notes and Series A Warrants
to purchase 521,184 shares of Common Stock;
(ii) HFEF IV $1,075,725 aggregate principal amount of Series A Notes and Series A Warrants
to purchase 11,592 shares of Common Stock;
(iii) HFIP IV-A $7,939,487 aggregate principal amount of Series A Notes and Series A
Warrants to purchase 85,555 shares of Common Stock; and
(iv) HFIP IV-B $2,618,946 aggregate principal amount of Series A Notes and Series A
Warrants to purchase 28,221 shares of Common Stock.
Upon the consummation of the distributions described in this Item 5, Norway Holdings and
Norway SPV ceased to beneficially own any shares of Common Stock. As a result of these
transactions, the Reporting Persons and the SLP Entities may no longer be deemed to constitute a
group, within the meaning of Section 13(d)(5) of the rules and regulations promulgated by the
Securities and Exchange Commission (the SEC) pursuant to the Securities Exchange Act of
1934, as amended (the Exchange Act), with respect to the Series A Notes and the Series A
Warrants that had been beneficially owned by Norway Holdings.
F. Warren Hellman, a managing member of H&F Investors and a former director of the Issuer,
holds for the benefit of the H&F Partnerships stock options currently exercisable for 5,000 shares
of Common Stock (the Shared Securities), which represent less than 0.1% of the Common
Stock outstanding. The H&F Partnerships have shared voting and dispositive power with respect to
the shares of Common Stock underlying such stock options.
Pursuant to Rule 13d-3 of the rules and regulations promulgated by the SEC pursuant to the
Exchange Act, HFCP IV may be deemed to beneficially own (i)(a) 3,335,575 shares of Common Stock
underlying the Series A Notes held by HFCP IV and (b) 521,184 shares of Common Stock underlying the
Series A Warrants held by HFCP IV; (ii)(a) 13,342,301 shares of Common Stock underlying the Series
B Notes held by HFCP IV and (b) 2,219,547 shares of Common Stock underlying the Series B Warrants
held by HFCP IV; and (iii) 403,049 shares of Common Stock. HFCP IV has sole voting and dispositive
power with respect to these securities. The aggregate number of shares of Common Stock
beneficially owned by HFCP IV, including the Shared Securities, is 19,826,656 shares of Common
Stock, representing approximately 19.5% of the Common Stock outstanding.
Pursuant to Rule 13d-3 of the rules and regulations promulgated by the SEC pursuant to the
Exchange Act, HFEF IV may be deemed to beneficially own (i)(a) 74,187 shares of Common Stock
underlying the Series A Notes held by HFEF IV and (b) 11,592 shares of
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CUSIP No. 631103108 |
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SCHEDULE 13D/A |
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Page 9 of 13 |
Common Stock underlying the Series A Warrants held by HFEF IV; (ii)(a) 296,751 shares of Common
Stock underlying the Series B Notes held by HFEF IV and (b) 49,366 shares of Common Stock
underlying the Series B Warrants held by HFEF IV; and (iii) 8,964 shares of Common Stock. HFEF IV
has sole voting and dispositive power with respect to these securities. The aggregate number of
shares of Common Stock beneficially owned by HFEF IV, including the Shared Securities, is 455,860
shares of Common Stock, representing approximately 0.5% of the Common Stock outstanding.
Pursuant to Rule 13d-3 of the rules and regulations promulgated by the SEC pursuant to the
Exchange Act, HFIP IV-A may be deemed to beneficially own (i)(a) 547,550 shares of Common Stock
underlying the Series A Notes held by HFIP IV-A and (b) 85,555 shares of Common Stock underlying
the Series A Warrants held by HFIP IV-A; (ii)(a) 2,190,203 shares of Common Stock underlying the
Series B Notes held by HFIP IV-A and (b) 364,349 shares of Common Stock underlying the Series B
Warrants held by HFIP IV-A; and (iii) 66,162 shares of Common Stock. HFIP IV-A has sole voting and
dispositive power with respect to these securities. The aggregate number of shares of Common Stock
beneficially owned by HFIP IV-A, including the Shared Securities, is 3,258,819 shares of Common
Stock, representing approximately 3.8% of the Common Stock outstanding.
Pursuant to Rule 13d-3 of the rules and regulations promulgated by the SEC pursuant to the
Exchange Act, HFIP IV-B may be deemed to beneficially own (i)(a) 180,616 shares of Common Stock
underlying the Series A Notes held by HFIP IV-B and (b) 28,221 shares of Common Stock underlying
the Series A Warrants held by HFIP IV-B; (ii)(a) 722,467 shares of Common Stock underlying the
Series B Notes held by HFIP IV-B and (b) 120,186 shares of Common Stock underlying the Series B
Warrants held by HFIP IV-B; and (iii) 21,825 shares of Common Stock. HFIP IV-B has sole voting and
dispositive power with respect to these securities. The aggregate number of shares of Common Stock
beneficially owned by HFIP IV-B, including the Shared Securities, is 1,078,315 shares of Common
Stock, representing approximately 1.3% of the Common Stock outstanding.
As the general partner of each of the H&F Partnerships, H&F Investors may be deemed to have
beneficial ownership of the shares of Common Stock over which any of the H&F Partnerships has
voting or dispositive power. Accordingly, H&F Investors may be deemed to have sole voting and
dispositive power with respect to, and beneficially own, an aggregate of 24,594,650 shares of
Common Stock, representing approximately 23.2% of the Common Stock outstanding.
The investment decisions of H&F Investors are made by the investment committee of H&F
Investors. Each of the managing members of H&F Investors and each of the members of the investment
committee, disclaims beneficial ownership of the shares of Common Stock which H&F Investors may be
deemed to beneficially own, except to the extent of his or her indirect pecuniary interest, if any,
therein.
As the result of the treatment of the H&F Partnerships under the Amended Securityholders
Agreement and the existence of a common general partner among the H&F Partnerships, the H&F
Partnerships may be deemed to constitute a group within the meaning of Section 13(d)(5) of the
rules and regulations promulgated by the SEC pursuant to the Exchange
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CUSIP No. 631103108 |
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SCHEDULE 13D/A |
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Page 10 of 13 |
Act. As such, each of the H&F Partnerships (i) may be deemed to have acquired beneficial
ownership, for purposes of Section 13(d) of the Exchange Act, of all the shares of Common Stock
beneficially owned by H&F Investors and (ii) may be deemed to beneficially own, pursuant to Rule
13d-3 of the rules and regulations promulgated by the SEC pursuant to the Exchange Act, an
aggregate of 24,594,650 shares of Common Stock, representing approximately 23.2% of the Common
Stock outstanding. However, each of the H&F Partnerships disclaims beneficial ownership of any of
the shares of Common Stock beneficially owned by the other H&F Partnerships, except to the extent
set forth in this Item 5, above.
The information set forth in response to this Item 5 is qualified in its entirety by reference
to the Holdings LLC Agreement (Exhibit 11 hereto) and the Subscription Agreement (Exhibit 9
hereto), each of which is incorporated herein by reference.
(c) Each of the Reporting Persons reports that neither it, nor to its knowledge, any person
named in Item 2 of this Schedule 13D, has effected any transaction in Common Stock during the past
60 days, except as disclosed herein.
(d) Except as otherwise described in Item 2 and this Item 5, no one other than the Reporting
Persons has the right to receive, or the power to direct the receipt of, dividends from, or the
proceeds from the sale of, any of the securities of the Issuer beneficially owned by the Reporting
Persons as described in Item 5.
(e) Not applicable.
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Item 6 |
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Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer. |
Item 6 is hereby amended and supplemented by inserting the following before the penultimate
paragraph thereof:
In connection with the Merger Closing, the Issuer and Law Debenture Trust Company of New York,
as trustee, entered into the First Supplemental Indenture, dated as of December 8, 2005 (the
Indenture Supplement), to amend the Indenture governing the Notes. The Indenture
Supplement revised the definition of Credit Facility to reflect a maximum size credit facility of
$825,000,000, an increase of $25,000,000 from the original Indenture. Additionally, the Issuer,
Norway SPV, the H&F Partnerships and the SLP Entities entered into Amendment No. 1, dated as of
December 7, 2005 (the Securityholders Amendment), to the Amended Securityholders
Agreement. The Securityholders Amendment corrected an error contained in the Amended
Securityholders Agreement as originally executed.
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Item 7 |
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Material to be Filed as Exhibits |
1. |
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First Supplemental Indenture, dated as of December 8, 2005, between The Nasdaq Stock Market,
Inc. and Law Debenture Trust Company of New York, as Trustee (filed herewith). |
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2. |
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Amendment No. 1 to the Amended and Restated Securityholders Agreement, dated as of December
8, 2005, among Norway Acquisition SPV, LLC, Hellman & Friedman Capital |
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CUSIP No. 631103108 |
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SCHEDULE 13D/A |
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Page 11 of 13 |
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Partners IV, L.P., H&F Executive Fund IV, L.P., H&F International Partners IV-A, L.P., H&F
International Partners IV-B, L.P., Silver Lake Partners II TSA, L.P., Silver Lake Technology
Investors II, L.L.C., Silver Lake Partners TSA, L.P., Silver Lake Investors, L.P., VAB
Investors, LLC, Integral Capital Partners VI, L.P., and The Nasdaq Stock Market, Inc. (filed
herewith). |
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CUSIP No. 631103108 |
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SCHEDULE 13D/A |
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Page 12 of 13 |
SIGNATURES
After reasonable inquiry and to the best of our knowledge and belief, the undersigned certify that
the information set forth in this statement is true, complete and correct.
Dated: December 9, 2005
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H&F INVESTORS IV, LLC
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By: |
H&F Administration IV, LLC, its administrative manager
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By: |
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H&F Investors III, Inc., its manager |
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By: |
/s/ Georgia Lee |
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Name: |
Georgia Lee |
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Title: |
Vice President |
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HELLMAN & FRIEDMAN CAPITAL PARTNERS IV, L.P.
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By: |
H&F Investors IV, LLC, its general partner
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By: |
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H&F Administration IV, LLC, its administrative manager
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By: H&F Investors III, Inc., its manager |
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By: |
/s/ Georgia Lee |
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Name: |
Georgia Lee |
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Title: |
Vice President |
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CUSIP No. 631103108 |
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SCHEDULE 13D/A |
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Page 13 of 13 |
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H&F EXECUTIVE FUND IV, L.P.
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By: |
H&F Investors IV, LLC, its general partner
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By: |
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H&F Administration IV, LLC, its administrative manager
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By: H&F Investors III, Inc., its manager |
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By: |
/s/ Georgia Lee |
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Name: |
Georgia Lee |
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Title: |
Vice President |
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H&F INTERNATIONAL PARTNERS IV-A, L.P.
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By: |
H&F Investors IV, LLC, its general partner
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By: |
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H&F Administration IV, LLC, its administrative manager
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By: H&F Investors III, Inc., its manager |
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By: |
/s/ Georgia Lee |
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Name: |
Georgia Lee |
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Title: |
Vice President |
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H&F INTERNATIONAL PARTNERS IV-B, L.P.
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By: |
H&F Investors IV, LLC, its general partner
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By: |
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H&F Administration IV, LLC, its administrative manager
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By: H&F Investors III, Inc., its manager |
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By: |
/s/ Georgia Lee |
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Name: |
Georgia Lee |
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Title: |
Vice President |
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exv99wx1y
Exhibit 1
EXECUTION COPY
THE NASDAQ STOCK MARKET, INC.
TO
LAW DEBENTURE TRUST COMPANY OF NEW YORK,
as Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of
December 8, 2005
TO
INDENTURE
Dated as of
April 22, 2005
3.75% Convertible Notes due 2012
FIRST SUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE (the First Supplemental Indenture), dated as of
December 8, 2005, between The Nasdaq Stock Market, Inc., a Delaware corporation (hereinafter called
the Company), having its principal office at One Liberty Plaza, New York, NY 10006 and
Law Debenture Trust Company of New York, as trustee under the Original Indenture hereinafter
referred to (hereinafter called the Trustee).
WITNESSETH
WHEREAS, the Company has heretofore executed and delivered an indenture, dated as of April 22,
2005 (the Original Indenture), between the Company and the Trustee, pursuant to which the
Company has issued $205,000,000 aggregate principal amount of its 3.75% Series A Convertible Notes
due 2012 (the Series A Notes) and $240,000,000 aggregate principal amount of its 3.75%
Series B Convertible Notes due 2012 (the Series B Notes, together with the Series A
Notes, the Notes);
WHEREAS, the Company seeks to increase the maximum amount of Designated Senior Indebtedness
that it may incur in connection with the Credit Facility;
WHEREAS, Section 11.02 of the Original Indenture provides that, with the consent (evidenced as
provided in Article 9 of the Original Indenture) of the holders of a majority in aggregate
Principal Amount of the Notes at the time outstanding, the Company, when authorized by resolutions
of the Board of Directors, and the Trustee may enter into an indenture supplemental to the Original
Indenture for the purpose, among other things, of changing in any manner any of the provisions of
the Original Indenture or modifying in any manner the rights of the holders of the Notes as in said
Section provided;
WHEREAS, holders holding not less than a majority in aggregate Principal Amount of the
outstanding Notes have, pursuant to Section 11.02 of the Original Indenture, consented to the
amendment to the Original Indenture as set forth herein and to the execution and delivery of this
First Supplemental Indenture by the Trustee;
WHEREAS, the Company has delivered to the Trustee resolutions of the Board of Directors of the
Company authorizing the execution and delivery of this First Supplemental Indenture;
WHEREAS, the Company has filed with the Trustee consents (evidenced as provided in Article 9
of the Indenture) of the requisite percentage of holders in aggregate Principal Amount of the
outstanding Notes to the amendment of the Original Indenture as set forth herein and to the
execution and delivery of this First Supplemental Indenture by the Trustee;
WHEREAS, the Company has requested the Trustee to join it in the execution and delivery of
this First Supplemental Indenture; and
WHEREAS, all conditions precedent related to the entering of this First Supplemental Indenture
have been satisfied.
NOW, THEREFORE, in consideration of the premises and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the Company and the
Trustee for the benefit of each other and for the equal and proportionate benefit of the holders of
the Notes agree as follows:
2
ARTICLE 1
Definitions
Terms used herein and not otherwise defined shall have the meanings ascribed to such terms in
the Original Indenture.
ARTICLE 2
Amendment of the Indenture
Section 3.01. Amendment of Definitions. Subject to Article 3 hereof, the
Original Indenture is hereby amended by amending the definition of Credit Facility in Article 1
by replacing $800,000,000 with $825,000,000.
ARTICLE 3
Effectiveness of Amendment
Upon the execution and delivery of this First Supplemental Indenture by the Company and the
Trustee, this First Supplemental Indenture shall become effective and the Original Indenture shall
be amended and supplemented in accordance herewith, and the rights of the holders of the Notes
modified hereby, and this First Supplemental Indenture shall form a part of the Original Indenture
for all purposes, and every holder of Notes authenticated and delivered under the Original
Indenture shall be bound hereby.
ARTICLE 4
Miscellaneous
Section 4.01. Execution as Supplemental Indenture. This First Supplemental
Indenture is executed and shall be construed as an indenture supplemental to the Original Indenture
and, as provided in the Original Indenture, this First Supplemental Indenture forms a part thereof.
Except as herein expressly otherwise defined, the use of the terms and expressions herein is in
accordance with the definitions, uses and constructions contained in the Original Indenture.
Section 4.02. No Other Amendments. Except as expressly amended hereby, the
Original Indenture shall continue in full force and effect in accordance with the provisions
thereof.
Section 4.03. Trustee. The recitals contained herein are those of the Company
and not the Trustee, and the Trustee assumes no responsibility for the correctness of same. The
Trustee makes no representations as to the validity or sufficiency of this First Supplemental
Indenture. All rights, protections, privileges, indemnities and benefits granted or afforded to
the Trustee under the Original Indenture shall be deemed incorporated herein by this reference and
shall be deemed applicable to all actions taken, suffered or omitted by the Trustee under this
First Supplemental Indenture.
3
Section 4.04. Provisions Binding on the Companys Successors. Any covenants
and agreements contained in this First Supplemental Indenture made by the Company shall bind its
successors and assigns whether so expressed or not.
Section 4.05. Governing Law. This First Supplemental Indenture shall be
deemed to be a contract made under the laws of the State of New York, and for all purposes shall be
construed in accordance with the laws of the State of New York (including Section 5-1401 of the New
York General Obligations Law or any successor to such statute).
Section 4.06. Execution and Counterparts. This First Supplemental Indenture
may be executed in any number of counterparts, each of which when so executed shall be deemed to be
an original, but all such counterparts shall together constitute one and the same instrument.
Section 4.07. Headings. The article and section headings herein are for
convenience only and shall not affect the construction hereof.
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4
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be
duly executed as of the date first written above.
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THE NASDAQ STOCK MARKET, INC.
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By: |
/s/ David Warren
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Name: |
David Warren |
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Title: |
Executive Vice President
and Chief Financial Officer |
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LAW DEBENTURE TRUST COMPANY OF NEW YORK, as Trustee
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By: |
/s/ Adam Berman
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Name: |
Adam Berman |
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Title: |
Vice President |
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5
exv99wx2y
Exhibit 2
EXECUTION COPY
AMENDMENT NO. 1
TO THE
AMENDED AND RESTATED SECURITYHOLDERS AGREEMENT
This AMENDMENT NO. 1 (this Amendment) to the Amended and Restated Securityholders
Agreement, dated as of April 22, 2005 (as amended, supplemented or otherwise modified from time to
time, the Agreement), among (i) The Nasdaq Stock Market, Inc. (together with any
successor entity, the Company), (ii) Norway Acquisition SPV, LLC (Norway
Acquisition), (iii) Hellman & Friedman Capital Partners IV, L.P. (H&F-1), H&F
Executive Fund IV, L.P. (H&F-2), H&F International Partners IV-A, L.P. (H&F-3)
and H&F International Partners IV-B, L.P. (H&F-4 and collectively with H&F 1, H&F 2 and
H&F 3, and their respective Affiliates, the H&F Entities), and (iv) Silver Lake Partners
II TSA, L.P. (SLP-1), Silver Lake Technology Investors II, L.L.C. (SLP-2),
Silver Lake Partners TSA, L.P. (SLP-3), Silver Lake Investors, L.P. (SLP-4),
Integral Capital Partners VI, L.P. (Integral) and VAB Investors, LLC (VAB
Investors and collectively with SLP-1, SLP-2, SLP-3, SLP-4 and Integral, and their respective
Affiliates, the SLP Entities and together with Norway Acquisition and the H&F Entities,
the Holders), is made this 8th day of December, 2005 by and among the Company,
Norway Acquisition, the H&F Entities and the SLP Entities. Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to them in the Agreement.
WHEREAS, the Company and the Holders entered into the Agreement to provide for certain rights
and obligations among the parties in connection with (i) the purchase of $205,000,000 aggregate
principal amount of 3.75% Series A Convertible Notes due 2012 of the Company by Norway Acquisition
and (ii) the amendment and restatement of $240,000,000 aggregate principal amount of 4.0%
Convertible Subordinated Notes due 2006 into $240,000,000 aggregate principal amount of 3.75%
Series B Convertible Notes due 2012 of the Company held by the H&F Entities;
WHEREAS, the Company and the Holders desire to amend the Agreement pursuant to Section 6.02(b)
to correct a mistake in the Agreement and to reaffirm the intention of the parties thereto;
NOW, THEREFORE, in consideration of the mutual promises and agreements herein made and
intending to be legally bound hereby, the parties hereto agree to amend the Agreement as follows:
1. Amendment to Section 6.03(b). Section 6.03(b) of the Agreement is hereby amended
by deleting it in its entirety.
2. Ratification and Confirmation of the Agreement. Except as so modified pursuant to
this Amendment, the Agreement is hereby ratified and confirmed in all respects.
3. Effectiveness. This Amendment shall be effective as of immediately prior to the
Merger Closing.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first above
written.
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THE NASDAQ STOCK MARKET, INC.
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By: |
/s/ David P. Warren
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Name: |
David P. Warren |
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Title: |
EVP, CFO |
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NORWAY ACQUISITION SPV, LLC |
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By: |
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NORWAY HOLDINGS SPV, LLC, as Managing Member |
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By: |
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SILVER LAKE PARTNERS II TSA, L.P.,
its Managing Member |
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By: |
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SILVER LAKE TECHNOLOGY
ASSOCIATES II, L.L.C.,
its General Partner |
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By:
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/s/ Alan K. Austin |
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Name:
Title:
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Alan K. Austin
Managing Director
and Chief Operating Officer |
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AND |
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By: |
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HELLMAN & FRIEDMAN CAPITAL
PARTNERS IV, L.P., as Managing Member |
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By: |
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H&F INVESTORS IV, LLC,
its General Partner |
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By: |
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H&F ADMINISTRATION IV,
LLC, its Administrative Manager |
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By:
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H&F INVESTORS III, INC.,
its Manager |
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By:
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/s/ Mitchell Cohen |
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Name:
Title:
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Mitchell Cohen
Vice President |
[Signature pages continue on next page]
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HELLMAN & FRIEDMAN CAPITAL PARTNERS IV, L.P. |
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By: |
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H&F INVESTORS IV, LLC, its General Partner |
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By: |
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H&F ADMINISTRATION IV, LLC,
its Administrative Manager |
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By: |
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H&F INVESTORS III, INC.,
its Manager |
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By:
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/s/ Mitchell Cohen |
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Name:
Title:
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Mitchell Cohen
Vice President |
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H&F EXECUTIVE FUND IV, L.P. |
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By: |
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H&F INVESTORS IV, LLC, its General Partner |
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By: |
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H&F ADMINISTRATION IV, LLC,
its Administrative Manager |
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By: |
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H&F INVESTORS III, INC.,
its Manager |
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By:
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/s/ Mitchell Cohen |
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Name:
Title:
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Mitchell Cohen
Vice President |
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H&F INTERNATIONAL PARTNERS IV-A, L.P. |
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By: |
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H&F INVESTORS IV, LLC, its General Partner |
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By: |
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H&F ADMINISTRATION IV, LLC,
its Administrative Manager |
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By: |
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H&F INVESTORS III, INC.,
its Manager |
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By:
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/s/ Mitchell Cohen |
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Name:
Title:
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Mitchell Cohen
Vice President |
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H&F INTERNATIONAL PARTNERS IV-B, L.P. |
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By: |
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H&F INVESTORS IV, LLC, its General Partner |
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By: |
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H&F ADMINISTRATION IV, LLC, its Administrative Manager |
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By: |
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H&F INVESTORS III, INC., its Manager |
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By:
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/s/ Mitchell Cohen |
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Name:
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Mitchell Cohen |
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Title:
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Vice President |
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SILVER LAKE PARTNERS II TSA, L.P. |
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By: |
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SILVER LAKE TECHNOLOGY ASSOCIATES II, L.L.C., its General Partner |
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By: |
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/s/ Alan K. Austin |
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Name: |
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Alan K. Austin |
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Title: |
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Managing Director and Chief Operating Officer |
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SILVER LAKE TECHNOLOGY INVESTORS II, L.L.C. |
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By: |
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SILVER LAKE MANAGEMENT COMPANY, L.L.C., its Manager |
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By: |
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SILVER LAKE TECHNOLOGY MANAGEMENT, L.L.C., its Managing Member |
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By: |
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/s/ Alan K. Austin |
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Name:
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Alan K. Austin |
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Title:
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Managing Director and Chief Operating Officer |
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SILVER LAKE PARTNERS TSA, L.P. |
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By: |
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SILVER LAKE TECHNOLOGY ASSOCIATES, L.L.C., its General Partner |
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By: |
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/s/ Alan K. Austin |
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Name: |
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Alan K. Austin |
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Title: |
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Managing Director and Chief Operating Officer |
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SILVER LAKE INVESTORS, L.P. |
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By: |
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SILVER LAKE TECHNOLOGY ASSOCIATES, L.L.C., its General Partner |
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By:
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/s/ Alan K. Austin |
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Name:
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Alan K. Austin |
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Title:
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Managing Director and Chief Operating Officer |
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INTEGRAL CAPITAL PARTNERS VI, L.P. |
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By: |
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INTEGRAL CAPITAL MANAGEMENT VI, LLC, its General Partner |
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By:
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/s/ Pamela K. Hagenah |
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Name:
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Pamela K. Hagenah |
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Title:
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Manager |
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VAB INVESTORS, LLC
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By: |
/s/ Edward J. Nicoll
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Name: |
Edward J. Nicoll |
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Title: |
Manager |
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