Exhibit

10.2




 




MASTER

AGREEMENT




 




dated as

of




 




February

6, 2002




 




among




 




National

Association of Securities Dealers, Inc.




 




The

Nasdaq Stock Market, Inc.




 




American

Stock Exchange Membership Corporation




 




Nasdaq

Financial Products Services, Inc.




 




and




 




American

Stock Exchange, LLC




 





























 




MASTER

AGREEMENT




 




This Master Agreement,

dated as of February 6, 2002 (Effective Date), is made by and among the National

Association of Securities Dealers, Inc., a Delaware nonprofit corporation with

its principal place of business located at 1735 K Street, N.W., Washington, DC

20006 (NASD),

The Nasdaq Stock Market, Inc., a Delaware corporation with its principal place

of business located at One Liberty Plaza, 165 Broadway, New York, New York

10006 (Nasdaq),

and the American Stock Exchange, LLC, a Delaware limited liability corporation

with its principal place of business located at 86 Trinity Place, New York, New

York 10006 (Amex)

(NASD, Nasdaq and Amex are collectively referred to herein as the Parties and

individually as a Party),

and, for certain provisions, the American Stock Exchange Membership

Corporation, a New York Type A not-for-profit corporation with its principal

place of business located at 86 Trinity Place, New York, New York 10006 (Old Amex) and Nasdaq

Financial Products Services, Inc., a Delaware corporation (Nasdaq FPS)

(collectively, with the Parties, the Participants).




 




RECITALS




 




WHEREAS, in 1998, pursuant to the

Transaction Documents, among other things, (i) Amex acquired substantially all

the assets of and assumed certain liabilities of Old Amex in consideration for

a Class A membership interest in Amex, and (ii) the NASD and NASD Market

Holding Company (later known as The Nasdaq-Amex Market Group, Inc. (Market Group)) made

commitments to Amex, including, without limitation, subject to certain

conditions, that specific technology and related services would be provided to

Amex, all as specified in the Transaction Documents;




 




WHEREAS,

the Market Group no longer exists and: (i) the NASD’s

interest in the Market Group has been transferred to New NASD Holding Company,

Inc (New Holdco);

and (ii) the NASD has assumed any remaining obligations of the Market Group;




 




WHEREAS, the NASD and Nasdaq, formerly a

wholly-owned Subsidiary of the NASD, have taken corporate actions to restructure

and recapitalize Nasdaq through:  (i) a

two phase private placement of Nasdaq securities  with the first phase closing on June 28, 2000 and the second

phase closing on January 18, 2001; and (ii) the sale and issuance of $240

million convertible subordinated debentures of Nasdaq to Hellman & Friedman

Capital Partners IV, L.P. and certain of its affiliated limited partnerships,

the proceeds from which were used to repurchase shares of Nasdaq common stock

owned by the NASD; and the result of which is that Nasdaq is no longer a

wholly-owned Subsidiary of the NASD;




 




WHEREAS, the NASD, Nasdaq and Amex now intend to provide for certain

transfers of Nasdaq Technology to Amex and enter into certain business

arrangements; and




 




2





























 




WHEREAS, the Participants wish to govern their ongoing relationships as of

the Effective Date by the terms and conditions of this Agreement;




 




NOW,

THEREFORE, in consideration of the foregoing and the

covenants and agreements set forth below and for good and valuable

consideration, the Participants, hereby agree as follows:




 




ARTICLE

1




 




Definitions

and Construction.




 




Section 1.01   Defined

Terms. 

Capitalized terms  that are not

otherwise defined herein shall have the meanings ascribed to them in the  Transaction Agreement (as hereinafter

defined). The following terms, as used herein, shall have the following

meanings:




 




“Affiliate” of any specified Person means

any other Person directly or indirectly Controlling, Controlled by, or under

common Control with, such specified Person. It is understood, however, that none of the NASD, Nasdaq or

any Person directly or indirectly Controlled by Nasdaq shall be considered an

Affiliate of Amex; none of the NASD, Amex or any Person directly or indirectly

Controlled by Amex shall be considered an Affiliate of Nasdaq; and none of

Nasdaq, any Person directly or indirectly Controlled by Nasdaq, Amex or any

Person directly or indirectly Controlled by Amex shall be considered an

Affiliate of the NASD.




 




“Agreement” means this Master Agreement by and among the NASD, Nasdaq, Amex, Old Amex

and Nasdaq FPS and any exhibits to this Agreement and all references to

this Agreement will include the exhibits, and any attachments thereto.




 




“Amex” means the American Stock Exchange,

LLC.




 




“Assets” means any and all assets,

properties and rights owned by a 

Participant, whether tangible or intangible, whether real, personal or

mixed, whether fixed, contingent or variable.




 




“Business

Day” means any 

Monday, Tuesday, Wednesday, Thursday or Friday on which Amex and Nasdaq

are open for trading and on which banking institutions in the State of New York

are not authorized or obligated by Law to close.




 




“Confidential Information” means any

information received from a Participant, either orally or in writing (hard copy

or electronic) prior to or after the Effective Date, relating to the business,

affairs, operations or customers of such Participant including, but not limited

to, information that relates or refers to: business planning; internal

controls; computer, data processing, or communications architectures or

systems; electronic data processing architectures, applications, programs,

routines, or subroutines; business affairs and methods of operation or proposed

methods of operation, techniques or systems of a Participant or any customer of

a Participant or financial or




 




3





























 




other information.  Notes,

documents, summaries, analyses or reports which are prepared from Confidential

Information to the extent such items specifically incorporate, refer to, or

relate to Confidential Information are themselves deemed to be Confidential

Information.  Notwithstanding the

foregoing, Confidential Information will not include information that the

Participant receiving the information can demonstrate is or was: (i) revealed

to such Participant on a non-confidential basis prior to its disclosure by the

other Participant, (ii) publicly known other than by the breach of this

Agreement or by breach of any other agreement or obligation between or among

the Participants hereto and/or any of their respective Affiliates or

Representatives relating to confidentiality, or (iii) lawfully acquired on a

non-confidential basis or independently developed by a Participant who did not

have access to any such Confidential Information, or on behalf of a Participant

by Persons who did not have access to any such Confidential Information.




 




“Contract” means any contract, agreement,

lease, license, sales order, purchase order, instrument or other commitment

that is binding on any Person or any part of its property under applicable law.




 




“Control” means the possession, direct or

indirect, of the power to direct or cause the direction of the management of

the policies of a Person, whether through the ownership of voting securities,

by contract or otherwise.




 




“Domestic”

means the geographic areas including, but not limited to, dependencies,

possessions, protectorates and territories over which the sovereignty of the

United States extends.




 




“ETF” means

an exchange traded  fund.  ETFs are actively traded on an exchange and

are continually repriced to reflect the results of commercial transactions

involving them. This is in contrast to mutual funds that are only priced once

at the close of each Business Day.  For

purposes of this Agreement, ETF does not include QQQ.




 




“Foreign”

means any geographic area including, but not limited to, any dependency,

possession, protectorate or territory that is not under the sovereignty of the

United States.




 




“Governmental Entity” means any government

or political subdivision thereof, whether federal, state, local or foreign, any

agency or instrumentality of or chartered by any such government or political

subdivision, any court, commission, board, tribunal (including arbitration

tribunal) or judicial authority thereof.




 




“Hardware” means the hardware listed on an

Exhibit to the Technology Transition Agreement.




 




“Indemnifying Participant” means a

Participant that is obligated to provide indemnification pursuant to Article 3

of this Agreement.




 




“Indemnitee” means a Person that is

entitled to seek indemnification pursuant to Article 3 of this Agreement.




 




4





























 




“Intellectual Property” means any and all

domestic and foreign patents and patent applications, together with any

continuations, continuations-in-part or divisional applications thereof, and

all patents issuing thereon (including reissues, renewals and re-examinations

of the foregoing); invention disclosures; mask works; copyrights, and copyright

applications and registrations; trademarks, service marks, service names, trade

names, and trade dress, in each case together with any applications and

registrations therefor and all appurtenant goodwill relating thereto; trade

secrets, and all other intellectual property under the laws of any country

throughout the world.




 




“Interest”

means the prime commercial rate as announced from time to time by JPMorgan

Chase & Co. at its principal office in the United States plus one percent

per annum.




 




“Law” means any

declaration, decree, directive, legislative enactment, order, ordinance,

regulation, rule or other binding restriction of or by any Governmental Entity.




 




“Liabilities” means any and all debts,

liabilities, commitments and obligations, whether fixed, contingent or

absolute, matured or unmatured, liquidated or unliquidated, accrued or not

accrued, known or unknown, whenever or however arising (including, without

limitation, whether arising out of any Contract or tort based on negligence or

strict liability) and whether or not the same would be required by generally

accepted accounting principles to be reflected in financial statements or

disclosed in the notes thereto.




 




“Losses” means any Liability, loss, damage,

claim, charge, action, proceedings, deficiency, payments, interest, penalty,

costs and expenses (including reasonable attorney’s fees).




 




“Market Group” means The Nasdaq-Amex Market

Group, Inc., originally incorporated under the name NASD Market Holding Company.




 




“Material

Adverse Effect” means a material adverse effect on the

business, property, Assets, Liabilities, operations, condition (financial or

otherwise) or prospects of a Participant and its Subsidiaries taken as a whole.




 




“NASD” means the National Association of

Securities Dealers, Inc.




 




“Nasdaq” means The Nasdaq Stock Market,

Inc.




 




“Nasdaq FPS” means Nasdaq Financial

Products Services, Inc.




 




“Nasdaq

Technology” means all the Software, Hardware, data or

information, and/or services as set forth herein to be provided to Amex as set

forth in the Technology Transition Agreement.




 




“New Holdco” means the New NASD Holding

Company, Inc.




 




5





























 




“Old Amex” means the American Stock

Exchange, Inc.




 




“Participants” means NASD, Nasdaq, Amex, Old

Amex and Nasdaq FPS collectively.




 




“Parties” means, collectively, NASD,

Nasdaq, and Amex.




 




“Person” means an individual, partnership,

limited liability company, joint venture, corporation, trust, unincorporated

association, any other entity, or a government or any department or agency or

other unit thereof.




 




“QQQ”

which is otherwise known as the Nasdaq-100 Index Tracking Stock  represents undivided ownership

interests in the Nasdaq-100 Trust, Series 1. The Nasdaq-100 Trust, Series

1 is a unit investment trust designed to closely track the price and yield

performance of the stocks of the companies that comprise the Nasdaq-100 Index.

Nasdaq FPS is the sponsor of the Nasdaq-100 Trust and must exercise its

fiduciary duties to the Nasdaq-100 Trust in its performance of this

Agreement.  The Nasdaq 100-Trust, Series

1 trades on the Amex under the symbol “QQQ” and has a minimum trading unit of 1

Share of Nasdaq-100 Index Tracking Stock.




 




“Related Documentation”

means, with respect to the Software, Systems and Hardware and related tools and

utilities that are provided to one Party by another Party pursuant to the

Technology Transition Agreement, all materials, documentation, specifications,

technical manuals, user manuals, flow diagrams, file descriptions and other

written information, to the extent it exists in the possession of the providing

Party, and that the receiving Party reasonably requires for the purposes for

which the Software, Systems and Hardware and related tools and utilities are provided.




 




“Representatives” means directors,

officers, employees, agents, consultants, advisors, accountants, attorneys and

other representatives.




 




“SEC” means the United States Securities and

Exchange Commission.




 




“Software”   means the set of programs (object code, and

if so noted in the  Technology

Transition Agreement, source programs) 

and Related Documentation in whatever form or media, required to be

provided under the provisions of the Technology Transition Agreement by one

Party to another Party.




 




“Standardized Options” means, collectively, any  options

issued or cleared through The Options Clearing Corporation or its successor or

standardized options in securities (including American Depositary Receipts or

their equivalent) issued or cleared by another equivalent clearing corporation.




 




“Stipulation

of Settlement” means the stipulation of settlement, dated November

24, 1998, and final order and judgment in Philipson v. American Stock




 




6





























 




Exchange, Inc., et al, United States

District Court for the Southern District of New York, 98 Civ. 4219 (DC).




 




“Subsidiary” means with respect to any

specified Person, any corporation or other legal entity of which such Person or

any of its Subsidiaries Controls or owns, directly or indirectly, more than 50%

of the stock or other equity interest entitled to vote on the election of the

members to the board of directors or similar governing body.




 




“Systems”  means

the Software, Hardware and related tools, utilities and equipment,

collectively, used by a Party to perform the Technology Transition Agreement.




 




“Technology Agreement” means that certain

Technology Transfer and Development Agreement, dated as of October 30, 1998,

among Amex, NASD, Market Group and Old Amex, including all exhibits and

schedules thereto.




 




“Technology Transition Agreement” means

that certain  Technology Transition

Agreement, dated as of the date hereof, among 

NASD, Nasdaq, and Amex, including all exhibits and schedules thereto.




 




“Third-Party Claim” means any claim, suit,

arbitration, inquiry, proceeding or investigation by or before any court,

governmental or other regulatory or administrative agency or commission or any

arbitration tribunal asserted by a Person other than a Participant or its

respective Affiliates which gives rise to a right of indemnification hereunder.




 




“Transaction Agreement” means that certain

Transaction Agreement, dated as of May 8, 1998, among NASD, Market Group, Amex

and Old Amex and each of its subsidiaries, including all exhibits and schedules

thereto, as amended as of October 30, 1998, including all exhibits and

schedules thereto, and as further amended by the Stipulation of Settlement.




 




“Transaction Documents” means collectively,

(i) the Transaction Agreement, (ii) the Limited Liability Company Agreement of

Amex, dated as of October 30, 1998, among Market Group, Old Amex and Amex, and

(iii) the Technology Agreement.




 




“Transferee” means any Person that will

receive a transfer of Assets pursuant to Article 2.




 




“Transferor” means any Person that will

make a transfer of Assets pursuant to Article 2.




 




7





























 




Section 1.02  

Incorporation and References  In this Agreement and the Exhibits to this Agreement:




 




(1)                                  the

Exhibits to this Agreement are hereby incorporated into and deemed part of this

Agreement and all references to this Agreement or any other agreements will

include the Exhibits, and any attachments thereto;




 




(2)                                  references

to an Exhibit, Section or Article will be to such Exhibit to, or Section or

Article of this Agreement, unless otherwise provided;




 




(3)                                  references

to days will mean calendar days unless otherwise provided;




 




(4)                                  references

to any Law will mean references to such Law in changed or supplemented form or

to a newly adopted Law replacing a previous Law; and




 




(5)                                  references

to and mention of the word “including” or the phrase “e.g.” will mean

“including, without limitation.”




 




Section 1.03   Headings.  The Article and Section headings, Table of

Contents and Table of Exhibits are for reference and convenience only and will

not be considered in the interpretation of this Agreement.




 




Section 1.04   Interpretation

of Documents. 

Except as otherwise expressly set forth in the body of this Agreement or

in any of the Exhibits, in the event of a conflict between the provisions in

the body of this Agreement and an Exhibit that expressly relate to the subject

of such conflict, the provisions of such Exhibit will prevail.  The words “hereof,” “herein,” and

“hereunder” and words of similar import shall refer to this Agreement as a

whole and not to any particular provision of this Agreement.




 




Section 1.05   [Reserved]




 




Section 1.06   Mutual

Release and Discharge. 

The Parties and Old Amex hereby acknowledge and agree that on and as of

the Effective Date:




 




(i)            each

of the NASD, Amex and Old Amex, for itself, its Subsidiaries, Affiliates,

successors in interest and assigns, hereby unconditionally releases and forever

discharges Nasdaq, its Subsidiaries, Affiliates, successors, assigns and employees,

from all past, present and future claims, Losses, demands, actions and causes

of action of any kind or nature, whether known or unknown (collectively, Claims), arising from

or relating to the Transaction Documents and from all Claims arising from or

related to any relationship of the Parties prior to the Effective Date;




 




(ii)           Nasdaq,

for itself, its Subsidiaries, Affiliates, successors in interest and assigns,

hereby unconditionally releases and forever discharges the NASD, Amex and Old

Amex, their respective Subsidiaries, Affiliates, successors, assigns and

employees, from all past, present and future Claims arising from or relating to

the Transaction




 




8





























 




Documents and from all Claims arising from or related to any

relationship of the Parties prior to the Effective Date; and




 




(iii)          each

of Amex and Old Amex for itself, its Subsidiaries, Affiliates, successors in

interest and assigns, hereby unconditionally releases and forever discharges

the NASD, its Subsidiaries, Affiliates, successors, assigns and employees, from

any past, present and future Claims arising directly and solely from the

provision of technologies and services by Nasdaq specified in the Technology

Transition Agreement (excluding AmexOnline). 

Further, to the extent that performance by Nasdaq of the Technology

Transition Agreement would fulfill the NASD’s or Market Group’s obligations

under the Technology Agreement (the Obligations), each of Amex and Old Amex, for

itself, its Subsidiaries, Affiliates, successors, in interest and assigns,

hereby unconditionally releases and forever discharges the NASD, its

Subsidiaries, Affiliates, successors, assigns and employees from any past,

present, and future Claims arising directly and solely from the Obligations

under the Technology Agreement.  *****.




 




The Parties and Old Amex

also hereby ratify NASD’s assumption, and its agreement to be bound by, to

comply with and to timely pay, perform and/or discharge all Liabilities and

obligations of Market Group under the 

Transaction Documents.




 




ARTICLE

2




 




Transfer

of Assets and Related Services




 




Section 2.01   Provision of 

Technology.  The

provision of Nasdaq Technology among the Parties will be governed by the terms

and conditions of the  Technology Transition

Agreement among the Parties, a copy of which is attached hereto as Exhibit D.




 




Section 2.02   Transfer

Documents. 

Each Party hereto agrees to deliver to the other Parties hereto on a

timely basis, without any additional consideration, such other documents,

instruments, certificates and agreements as may be reasonably requested by any

of such other Parties hereto in connection with the transactions contemplated

hereby and to take such further action as may be reasonably necessary to carry

out the provisions hereof, including without limitation, the delivery and

execution of appropriate transfer instruments.




 




Section 2.03   Trading

Rights.




 




Section 2.03.1  Options.  ****




 






















*****  Confidential Treatment has been requested for the redacted

portions.  The confidential redacted

portions have been filed separately with the Securities and Exchange

Commission.




 




9





























 




Section 2.03.2  ETFs.  Nasdaq agrees that, until *****,

neither Nasdaq nor any of its Affiliates will list shares in any ETF that, as

of the Effective Date : (i) is listed on the Amex; or (ii) Amex or its issuers

have publicly announced will be listed on the Amex.  Through ****, neither Nasdaq nor any of its Affiliates will,

consistent with its contractual obligations existing on the Effective Date,

discriminate against Amex in the licensing of trading rights to Domestic ETFs,

and if Nasdaq or any of its Affiliates licenses Domestic trading rights to an

ETF to a third party, Nasdaq or its applicable Affiliate will also make

available to Amex a non-exclusive license to trade such ETF Domestically at a

reasonable and usual commercial rate.




 




Section 2.03.3  QQQ. 

Nasdaq and the QQQ Trust shall grant to Amex, pursuant to the License

Agreement attached hereto as Exhibit E, a license to continuously: (i) list

exclusively and, on a non-exclusive basis, trade and market QQQ Domestically

until ****; and (ii) list, trade and market, QQQ in each Foreign region until

****, on a non-exclusive basis beginning on ****, provided, however, that in Asia such license shall begin on

 ****.  For purposes of  Sections 2.03.3 and 2.03.4 herein, ****.




 




Section 2.03.4 

Annual Fees. 

Beginning in calendar year 2002, Amex will pay an annual fee of up to

$5.5 million to Nasdaq for the right to list, trade and market QQQ.  This fee will be calculated as follows:




 




Section 2.03.4.1  Domestic.  This annual fee will include Amex’s payment

of $4.5 million to Nasdaq for the right to list, trade and market QQQ

Domestically. ****.




 




Section 2.03.4.2  International.  In addition to the $4.5 million Domestic

annual fee, Amex will pay an additional annual fee of $500K to Nasdaq for the

right to trade QQQ in Foreign regions. 

Amex will begin paying this $500K additional annual fee upon its

registration of QQQ for listing on any market in a  Foreign region.  Although

this annual fee will be paid quarterly by Amex on a prorated basis, Amex will

adjust the amount of its payment in the last quarter of each year to ensure

that it has paid the entire $500K fee to Nasdaq on an annual basis.  If Amex does not trade QQQ in any market in

a foreign region, it will no longer be liable to Nasdaq for the payment of this

fee, provided, however, that if

Amex lists or trades QQQ in any market in a Foreign region for at least one day

in any quarter, Amex will remain liable to pay the entire quarterly fee to

Nasdaq for such listing.  Amex may also

be liable to Nasdaq for the payment of another $500K annual fee, in addition to

the $500K annual fee payable when QQQ becomes registered to trade on any market

in a Foreign region, for the right to trade QQQ internationally. Amex will be

required to pay this second $500K annual fee to Nasdaq, if, at the total annual

fee of $5 million for the right to trade QQQ 




 






















*****  Confidential Treatment has been requested for the redacted

portions.  The confidential redacted

portions have been filed separately with the Securities and Exchange

Commission. 




 




10





























 




Domestically and in any market in a Foreign region, Nasdaq is still

able to certify that *****




 




Section 2.03.5  Payment

Procedures. 

Nasdaq will invoice Amex quarterly for any  fees that Amex owes Nasdaq for the right to list, trade or market

ETFs and QQQ in accordance with the procedures set forth in Article 13 herein.




 




Section 2.03.6  Reasonable

Arrangements for Listing QQQ Internationally and Provisions for the Payment of

Costs.  Amex

shall pay all fees and expenses necessary to obtain the right to list QQQ in

any Foreign region.  In addition, Amex

shall reimburse Nasdaq for all reasonable expenses incurred by Nasdaq in

connection with such listing, including, but not limited to, Nasdaq’s

reasonable outside legal and other professional fees related to the filing by

Nasdaq of all related applications and the obtaining by Nasdaq of all licenses,

permits, consents and approvals required by applicable Governmental Entities.

Nasdaq will use its best commercially reasonable efforts to facilitate the

Amex’s right to list QQQ in any Foreign region within a reasonable time

frame.  Amex will also be responsible

for the payment of any incremental fees or expenses, including reasonable

outside incremental legal and other professional fees, incurred by Nasdaq in

addition to the normal fees and related expenses required to obtain permission

to list QQQ in any Foreign region, if Nasdaq incurred such additional fees or

expenses due to Amex’s failure to provide reasonable advance notice to Nasdaq

of Amex’s intent to obtain the right to list QQQ in that region.  If Amex reimburses Nasdaq for such costs,

and then begins listing QQQ in such Foreign region, Amex will then have the

exclusive right  to list QQQ in

that Foreign region for a period of **** from the date that Amex reimbursed

Nasdaq for the costs that Nasdaq incurred in obtaining Amex’s right to list QQQ

in that region.  If, however, Amex

reimburses Nasdaq for such costs, and then refrains from listing or trading QQQ

in such Foreign region, Amex will then have the exclusive right  to list QQQ in that Foreign region for a

period of **** from the date that Amex reimbursed Nasdaq for the costs that

Nasdaq incurred in obtaining Amex’s right to list QQQ in that Foreign

region.  Upon the expiration of this

**** period, Nasdaq may then: (i) reimburse Amex for the fees and expenses paid

by Amex to obtain the right to list QQQ in that Foreign region; and (ii) begin

listing QQQ in that region.  If

Nasdaq  obtains the right to list QQQ in

such Foreign region subsequent to any exclusivity period for Amex, then the parties

will equally share the costs incurred by both parties for the right to list QQQ

in that Foreign region.




 




Section 2.04   Globe

Logo.  NASD

and Amex will assign all of their respective rights, interests, and all related

goodwill in the Globe logo, and any and all works based upon, derived from, or

incorporating the Globe logo, as well as all causes of actions, claims and

demands or other rights for, or arising from any infringement, including past




 






















*****  Confidential Treatment has been requested for the redacted

portions.  The confidential redacted

portions have been filed separately with the Securities and Exchange

Commission.




 




11





























 




infringement, of the Globe logo (the Logo) to Nasdaq at no cost to Nasdaq.  A drawing of the Logo is attached hereto as

Exhibit F.  Nasdaq will have no

obligation to: (i) reimburse NASD and Amex for any costs that NASD and Amex  incurred in the development, use, and

assignment of this Logo; or  (ii)

continue to allow NASD and Amex to use the Logo once this assignment has become

effective. This assignment will become effective for public dissemination no

later than December 31, 2001 and is made with no representations or warranties

except that neither Amex nor NASD have 

previously granted any license to or ownership of the Logo to any other

entity.  Each of NASD and Amex will use

all commercially reasonable efforts to: (i) stop its current use of the Logo;

and (ii) prevent the continued or future use of the Logo in any of their

respective materials after the effective date of its assignment, provided, however, that each of NASD and

Amex individually agree that it will: (a) promptly notify Nasdaq of any current

use of the Globe Logo that it will be unable to discontinue as of the effective

date of this assignment; and (ii) undertake all commercially reasonable efforts

to cease such use of the Logo as soon as 

possible.  If: (i) Nasdaq becomes

aware of any continuing use of the Logo by NASD or Amex; and (ii) NASD or Amex

has failed to notify Nasdaq of such continuing use, then Nasdaq will notify

NASD or Amex of such use and provide NASD or Amex with a reasonable opportunity

to cure its infringing use of the Logo. The Parties further agree that all

disputes arising from NASD’s or Amex’s failure or inability to terminate its

use of the  Logo as of  the effective date of such assignment will

first be referred to the Parties’ Program Executives.




 




Section 2.05   Advertising.  Nasdaq

will include the American Stock Exchange corporate identity in all of Nasdaq’s

domestic internet, print and television advertising and collateral material for

QQQ beginning on January 1, 2002; the American Stock Exchange corporate

identity shall be featured prominently and all elements of the logotype should

be clearly legible and in conformance with the guidelines for reproduction of

the American Stock Exchange logo.  The

American Stock Exchange name will not appear in a manner that looks like, or is

similar to, the appearance of NASD-required disclosure language in the

advertisement, nor will the American Stock Exchange name be positioned in close

proximity to the NASD-required disclosure language.  In advance of finalization and publication, Nasdaq will review

with Amex all advertisements in the mediums itemized above (with “Greek Text”

or its substantive equivalent replacing any creative material that Nasdaq

reasonably determines is inappropriate to share with Amex) that will use the

Amex name, and will consult Amex on ideas or concerns that they may have about

alternate ways to display the Amex name. Nasdaq will continue to reference the

American Stock Exchange in its advertising for as long as Amex’s license to

trade QQQ remains in effect and Amex pays all licensing fees that are due in

accordance with the provisions of Section 2.03.4 herein.  Nasdaq further agrees that when referencing

an Amex-listed ETF in its domestic print advertising, domestic direct marketing

materials, or on its domestic websites it will indicate that the Amex is a

trading venue for the particular ETF; unless, however, Nasdaq reasonably  determines

in good-faith that such information is irrelevant.  Amex agrees that it will include a reference to Nasdaq, Nasdaq

100 or QQQ in all of Amex’s Family Index Share advertising.  In advance of finalization and publication,

Amex will review with Nasdaq all such Family Index Share Advertising (with

“Greek Text” or its substantive equivalent 




 




12





























 




replacing any creative material that Amex reasonably determines is

inappropriate to share with Nasdaq) that will use the Nasdaq name, and will

consult Nasdaq on ideas or concerns that they may have about alternate ways to

display the Nasdaq name.




 




Section  2.06   Approvals.  Each Party agrees to  obtain and maintain all necessary licenses,

permits or government approvals as may be necessary for it to perform under

this Agreement. Each Party further agrees to cooperate with and assist the

other Parties in obtaining and maintaining any such approvals as applicable, to

the extent reasonably possible, if: (i) requested to do so by another Party in

writing and (ii) without limiting the requesting Party’s obligations under this

Agreement.




 




ARTICLE

3




 




Indemnification




 




Section 3.01   Indemnification.  Each Participant agrees to indemnify and

hold harmless the other Participants against all Losses that the other

Participants may incur by reason of the breach by such Participant of any term,

provision, covenant, warranty or representation contained herein, in connection

with the performance of such Participant’s obligations under this Agreement or

the Technology Transition Agreement and/or any claim, demand, or legal action

by a third party related to any of the foregoing.  No Participant shall have any obligation to defend, indemnify or

hold harmless any Indemnitee against claims, damages, Losses or expenses to the

extent arising from (i) the use of Intellectual Property, Hardware, Software or

Systems or information furnished to such Indemnitee in other than its intended

manner or (ii) changes to such Intellectual Property, Hardware, Software or

Systems or information by or on behalf of the Indemnitee by any entity other

than the Participant (including, but not limited to, changes in the operating

environment of such Hardware, Software, Systems or Information).  Each Participant further agrees to indemnify

and hold harmless the other Participants to this Agreement against any and all

claims, damages, Losses and expenses (including reasonable attorneys’ fees)

arising from or in connection with any claim, demand or legal action by a third

party, related directly to any Indemnitee’s permitted use of any Intellectual

Property, Hardware, Software or Systems or information furnished to such

Indemnitee by the Indemnifying Participant pursuant to the provisions of this

Agreement or the Technology Transition Agreement.




 




Section 3.02   Indemnification

Procedures.




 




Section 3.02.1  Notice.  If any Indemnitee receives notice of the

assertion of any Third-Party Claim with respect to which an Indemnifying

Participant is obligated under this Agreement to provide indemnification, such

Indemnitee shall give such Indemnifying Participant notice thereof (together

with a copy of such Third-Party Claim, process or other legal pleading)

promptly after becoming aware of such Third-Party Claim; provided, however, that the failure of any

Indemnitee to give notice as provided in this Section 3.02 shall not relieve

any Indemnifying Participant of its obligations under this Section 3.02, except

to the extent that such Indemnifying Participant is actually




 




13





























 




prejudiced by such failure to give such notice.  Such notice shall describe such Third-Party

Claim in reasonable detail.




 




Section 3.02.2  Defense

of Claims.  An

Indemnifying Participant, at its  own

expense and through counsel chosen by it(which counsel shall be reasonably

acceptable to the Indemnitees), may elect to defend any Third-Party Claim.  If an Indemnifying Participant elects to

defend a Third-Party Claim, then, within ten (10) Business Days after receiving

notice of such Third-Party Claim (or sooner, if the nature of such Third Party

claim so requires), the Indemnifying Participant shall notify the Indemnitees

of its intent to do so, and the Indemnitees shall cooperate in the defense of

such Third-Party Claim.  The

Indemnifying Participant shall pay each Indemnitee’s reasonable out-of-pocket

expenses incurred in connection with such cooperation.  The Indemnifying Participant shall keep the

Indemnitees reasonably informed as to the status of the defense of such Third

Party Claim.  After notice from an

Indemnifying Participant to an Indemnitee of its election to assume the defense

of a Third-Party Claim, such Indemnifying Participant shall not be liable to

such Indemnitees under this Section 3.02 for any legal or other expenses

subsequently incurred by such Indemnitees in connection with the defense

thereof other than those expenses referred to in the preceding sentence; provided, however, that such Indemnitees

shall have the right to employ one law firm as counsel, together with a

separate local law firm in each applicable jurisdiction (Separate Counsel), to

represent such Indemnitees in any action or group of related actions (which

firm or firms shall be reasonably acceptable to the Indemnifying Participant)

if, in such Indemnitees’ reasonable judgment at any time, either a conflict of

interest between such Indemnitees and the Indemnifying Participant exists in

respect of such claim, or there may be defenses available to such Indemnitees

which are different from or in addition to those available to the Indemnifying

Participant and the representation of both parties by the same counsel would be

inappropriate, and in that event: (i) the reasonable fees and expenses of such

Separate Counsel shall be paid by the Indemnifying Participant (it being

understood, however, that the

Indemnifying Participant shall not be liable for the expenses of more than one

Separate Counsel (excluding local counsel) with respect to any Third-Party

Claim (even if against multiple Indemnitees)); and (ii) each of the

Indemnifying Participant and the Indemnitees shall have the right to conduct

its own defense in respect of such claim. 

If an Indemnifying Participant elects not to defend against a Third

Party Claim, or fails to notify an Indemnitee of its election as provided in

this Section 3.02 within the period of ten (10) Business Days described above,

the Indemnitees may defend, compromise, and settle such Third Party Claim and

shall be entitled to indemnification hereunder (to the extent permitted

hereunder), provided, however,

that no such Indemnitee may compromise or settle any such Third-Party Claim

without the prior written consent of the Indemnifying Participant, which

consent shall not be unreasonably withheld, conditioned, or delayed.  Notwithstanding the foregoing, the

Indemnifying Participant shall not, without the prior written consent of the

Indemnitees, (i) settle or compromise any Third-Party Claim or consent to the

entry of any judgment which does not include as an unconditional term thereof

the delivery by the claimant or plaintiff to the Indemnitees of a written

release from all liability in respect of such Third-Party Claim or (ii) settle

or compromise any Third-Party Claim in any manner that would be reasonably

likely to have a Material Adverse Effect on the Indemnitees.




 




14





























 




Section 3.02.3  Third-Party

Claims. 

Except as otherwise noted in the Technology Transition Agreement, if any

Participant fails to defend jointly any such Third-Party Claim, the other

Participant or Participants shall solely defend such Third-Party Claim and the

Participant or Participants failing to defend jointly shall use all

commercially reasonable efforts to cooperate with the other Participant or

Participants in its or their defense of such Third Party Claim; provided, however, that no Participant may

compromise or settle any Third-Party Claim so as to affect any other

Participant without the prior written consent of the other appropriate

Participant or Participants, which consent shall not be unreasonably withheld,

conditioned, or delayed.  All costs and

expenses of any Participant in connection with, and during the course of, the

joint control of the defense of any such Third-Party Claim shall be initially

paid by the Participant that incurs such costs and expenses.  Such costs and expenses shall be reallocated

and reimbursed in accordance with the respective indemnification obligations of

the Participants at the conclusion of the defense of such Third-Party Claim.




 




Section 3.03   Certain

Limitations.




 




Section 3.03.1  Amount.  The amount of any indemnifiable Losses or

other liability for which indemnification is provided under this Agreement shall

be net of any amounts actually recovered by the Indemnitee from third parties

(including, without limitation, amounts actually recovered under insurance

policies) with respect to such indemnifiable losses or other liability.  Any Indemnifying Participant hereunder shall

be subrogated to the rights of the Indemnitee upon payment in full of the

amount of the relevant indemnifiable loss. 

An insurer who would otherwise be obligated to pay any claim shall not

be relieved of the responsibility with respect thereto or, solely by virtue of

the indemnification provision hereof, have any subrogation rights with respect

thereto.  If any Indemnitee recovers an

amount from a third party in respect of an indemnifiable loss for which

indemnification is provided in this Agreement after the full amount of such

indemnifiable loss has been paid by an Indemnifying Participant or after an

Indemnifying Participant has made a partial payment of such indemnifiable loss

and the amount received from the third party exceeds the remaining unpaid

balance of such indemnifiable loss, then the Indemnitee shall promptly remit to

the Indemnifying Participant the excess (if any) of (a) the sum of the amount

theretofore paid by such Indemnifying Participant in respect of such

indemnifiable loss plus the amount received from the third party in respect

thereof, less (b) the full amount of such indemnifiable loss or other

liability.




 




ARTICLE

4




 




Access

to Information




 




Section 4.01   Restrictions

on Disclosure of Information.




 




Section 4.01.1  Limitations

and Exceptions. 

Each of the Participants hereto (the Receiving Participant) agrees that it

shall not, and shall not permit any of its Affiliates or Representatives to,

disclose any Confidential Information of another Participant (the Disclosing Participant)

to any Person, other than to such Affiliates or




 




15





























 




Representatives on a need-to-know basis in connection with the purpose

for which the Confidential Information was originally disclosed.




 




Section 4.02   Legally

Required Disclosure of Confidential Information.  If any of the Participants to this Agreement

or any of their respective Affiliates or Representatives asserts that it

intends to disclose Confidential Information that is required to be disclosed

by Law or applicable process, or is necessary or advisable to be disclosed in

order to comply with any applicable statute or governmental rule, regulation,

order, directive, policy or stock exchange rule or request, any financial or

accounting requirement or any governmental requests for additional information

or documents thereunder, such Disclosing Participant shall promptly notify the

Participant claiming to own the Confidential Information (the Owning Participant)

and shall use all commercially reasonable efforts to cooperate with the Owning

Participant so that the Owning Participant may seek a protective order or other

appropriate remedy and/or waive compliance with this Section 4.02.  All reasonable expenses incurred by the

Disclosing Participant in seeking a protective order or other remedy shall be

paid by the Participant that claims to own such information as such expenses

are incurred by the Disclosing Participant or upon written demand thereof.  If such protective order or other remedy is

not obtained, or if the Owning Participant waives compliance with this Section

4.02, the Disclosing Participant or its Affiliate or Representative, as

applicable, shall (a) disclose only that portion of the Confidential

Information which its legal counsel advises is required, necessary, or

advisable; (b) use all commercially reasonable efforts to obtain reliable

assurance as requested by the Owning Participant that confidential treatment

will be accorded such Confidential Information, and (c) promptly provide the

Owning Participant with a copy of the Confidential Information so disclosed, in

the same form and format so disclosed, together with a description of all

Persons to whom such Confidential Information was disclosed.




 




Section 4.03   Unauthorized

Acts.  Without

limiting the other Participant or Participants’ rights in respect of a breach

of this Article, the Participant receiving any Confidential Information will:




 




(1)                                  promptly

notify the Disclosing Participant of any unauthorized possession, use or knowledge,

or attempt thereof, of the Disclosing Participant’s Confidential Information by

any person or entity that may become known to Receiving Participant;




 




(2)                                  promptly

furnish to the Disclosing Participant full details of the unauthorized

possession, use or knowledge, or attempt thereof, and assist the Disclosing

Participant in investigating or preventing the recurrence of any unauthorized

possession, use or knowledge, or attempt thereof, of the Disclosing

Participant’s Confidential Information;




 




(3)                                  cooperate

with the Disclosing Participant (at the Disclosing Participant’s expense) in

any litigation and investigation against third parties deemed necessary by the

Disclosing Participant to protect its proprietary rights (such cooperation will

not require, nor shall be deemed to be, a violation of any legal privilege);

and




 




16





























 




(4)                                  promptly

use its commercially reasonable efforts (acknowledging that its previous

efforts were inadequate) to prevent a recurrence of any such unauthorized

possession, use or knowledge, or attempt thereof, of Confidential Information.




 




Section 4.04   Return

of Confidential Information.  Each Participant agrees that all

Confidential Information, including any copies thereof, will be, at the

preference of the Owning Participant, either returned to the owner of such

Confidential Information or destroyed within ten (10) calendar days of the

completion or termination of this Agreement. 

Notes and other documents referencing or relating to Confidential

Information may be made and kept by the Participants, but will continue to be

governed by the provisions of this Agreement until they are destroyed.




 




Section 4.05   Standard of Care.  The Participants acknowledge the sensitive

and secret nature of the Confidential Information they will have access to and

agree that they will treat such Confidential Information as strictly

confidential and will exercise the same degree of care in the protection of the

Confidential Information as they each exercise with respect to their own

proprietary property and trade secrets, but in no event less than a reasonable

degree of care given the nature of the Confidential Information. Each  Participant 

warrants and represents that, except as otherwise permitted by this

Agreement, it has not disclosed  any

Confidential Information of the other Participants to this Agreement to any

third party.




 




Section 4.06  

Intellectual Property.  All Intellectual Property rights associated

with the Confidential Information, including without limitation, patent,

trademark, copyright, trade secret rights, and moral rights will remain in the

Owning Participant, unless otherwise specified in the Technology Transition

Agreement.




 




Section 4.07   Costs.  Each Participant will bear any cost it

incurs as a result of its compliance with this Article 4.




 




ARTICLE

5




 




Insurance

Matters




 




Section 5.01   Insurance.  During the term of this Agreement and during the period upon

which any obligations under the Technology Transition Agreement remain outstanding

and any additional period of time that assistance may be provided by the

Parties following the termination of the 

Technology Transition Agreement or this Agreement, each Party will

obtain, at its own expense, and keep in full force and effect professional

liability insurance covering the errors and omissions of the Party committed in

connection with the Technology Transition Agreement or this Agreement in an

amount not less than $*****. 

Each Party’s insurance will be written by one or more acceptable




 






















*****  Confidential Treatment has been requested for the redacted

portions.  The confidential redacted

portions have been filed separately with the Securities and Exchange Commission.




 




17





























 




insurance companies that are licensed in the states where the Party

provides services to the other Parties under the terms of the Technology

Transition Agreement or this Agreement. 

Acceptable insurance companies must have a policy holder rating (“Best

Rating”) of at least an “A-” and be assigned a financial size category of at

least a Class VIII as rated in the most recent edition of “Best’s Key Rating

Guide.”




 




Section 5.02.   Insurance

Documentation. 

Each Party will furnish to the other Parties certificates of insurance

evidencing the coverage referenced in Section  5.01 herein prior to the

Effective Date. All certificates of insurance will include a provision whereby

a minimum of thirty (30) days prior written notice must be received by the

other Parties to this Agreement prior to coverage cancellation or material

alteration of the coverage by either the Party to this Agreement that has

purchased such coverage or the applicable insurer.




 




Section 5.03   Risk

of Loss.  Each Party will be responsible for

personal injury, and the risk of loss of, or damage to, its property, unless

such loss or damage was caused by the negligence or willful misconduct of

another Party or Parties to this Agreement. 

All Parties waive their rights of subrogation for personal injury and

property loss or damage against the other Parties.




 




ARTICLE

6




 




Term and

Termination




 




Section 6.01   Term.  The term of this Agreement will commence on

the Effective Date and expire on the date upon which all of the

Participants  have fulfilled all of

their obligations under the terms of this Agreement and any agreements attached

hereto as exhibits.




 




Section 6.02   Renewal.  The Participants may mutually

agree to extend the term of any provision of this Agreement.




 




Section 6.03   Financial Weakness.  Without limiting any provision of Law, if

any Party’s financial condition at any time does not, in the reasonable

judgment of any other Party, justify continuance of this Agreement on the terms

of payment set forth herein, the Party that is concerned will be entitled to

request that the Party about which it is concerned provide it with adequate

assurances of its ability to perform its obligations hereunder.  Any dispute between or among the Parties

under this Section shall be resolved under the dispute resolution procedures

set forth in Article 12 herein.




 




18





























 




ARTICLE

7




 




Non-Indemnification

Tax Issues




 




Section 7.01   Generally.  The fees paid by the Parties for any Nasdaq

Technology furnished in their performance of this Agreement or the Technology

Transition Agreement will be inclusive of any applicable sales, use, gross

receipts, excise, or other taxes attributable to periods on or after the

Effective Date based upon or measured by the cost in providing such Nasdaq Technology.  No Party, however, will be responsible

for the payment of any tax assessed on the personal property or net income of

the other Parties.  To the extent that

any sales, use, gross receipts, excise, value-added or services tax is required

by Law to be separately identified in billings, the Party issuing the invoice

will separately identify such tax.




 




Section 7.02   Tax

Losses.   The Parties agree and acknowledge

that: (i) Nasdaq will be entitled to realize $***** of tax loss

carry forwards related to the assignment by Market Group of its interest in

Amex to New NASD Holding, Inc.; (ii) Nasdaq has paid the NASD $**** for

Nasdaq’s use of $**** of losses allocated by Amex to Market Group for the

period beginning **** and ending on ****; and (iii) the NASD is required to

repay Nasdaq the $**** in cash that Nasdaq paid to the NASD.  To the extent that any of the losses

described in clause (i) are (or become) unavailable for use by Nasdaq in the

year allocated to Market Group, the NASD shall compensate Nasdaq for the amount

of: (a) the losses that are or have become unavailable; and (b) any penalties,

interest or similar amounts assessed by any Governmental Entity in connection

with any assessment arising from or relating to the unavailability of such

losses by transferring an equivalent amount of cash to Nasdaq.




 




ARTICLE

8




 




Force

Majeure




 




No Participant will be liable for delay or failure in performance of

any of the acts required by this Agreement to the extent this delay or failure

arises from circumstances beyond its reasonable control (including, without

limitation, acts of God, fire, flood, war, explosion, sabotage, terrorism,

embargo, civil commotion, acts or omissions of any government entity, supplier

delays, communications or power failure, equipment or software malfunction, or

labor disputes). The Participants prevented from performing their obligations

under this Agreement by such force majeure event will be excused from such

performance for as long as such: (i) force majeure event continues; and (ii) such

Participants continue to use their commercially reasonable best efforts to

recommence performance of their obligations under this Agreement whenever and

to whatever extent possible without delay, including through the use of

alternate sources, workaround plans or other means. If the period of

non-performance exceeds thirty (30) calendar days, then the Participants to

whom the performance is due will each have the right to terminate the 




 






















*****  Confidential Treatment has been requested for the redacted

portions.  The confidential redacted

portions have been filed separately with the Securities and Exchange

Commission.




 




19





























 




provisions of this Agreement affected by such non-performance as to the

Participants owing performance upon fifteen (15) calendar days prior written

notice.




 




ARTICLE

9




 




Ownership




 




Section 9.01   Documentation.  Each Party will own all reports, summaries,

or other documentation that another Party or Parties exclusively creates for it

during their performance of  this

Agreement.  The Parties may each, however, allow their agents or

subcontractors to retain copies of such documentation if such documentation is

required in order for such agents or subcontractors to discharge their duties

under the terms of this Agreement. The Parties will not be required to reveal

their own confidential or proprietary information during their performance of

this Agreement unless such information is a material component of the  Nasdaq Technology provided.  The Parties providing such documentation

agree to execute any documents and make such further assurances as are

reasonably necessary to confirm such ownership by the Party that is provided

with such documentation.




 




Section 9.02   Trademarks.  Except as otherwise set forth herein, each

Party will retain all right, title and interest in and to its trademarks and

service marks, registered or unregistered, (collectively, the Marks).  Any specific use by one Party of another

Party’s Marks will only occur after consultation with, and the written approval

of, the owner of the Marks.




 




ARTICLE

10




 




Audits




 




Each Party and the QQQ Trust will have the right to cause an

independent third party, during normal business hours, and with reasonable

advance notice, to review, copy and perform financial audits of the other

Parties’ business and financial records to verify any amounts previously

invoiced or reported.  In the event that

such audits reveal that amounts invoiced or reported differ by five percent

(5%)  or more from the correct amount

that should have been invoiced or reported, the Party having submitted

incorrect invoices or reports will reimburse the auditing Party or the QQQ

Trust (as applicable) for  the

reasonable cost of such review and audit and will refund  the amount of any overpayment or remit the

amount of any underpayment, if any. 

Each Party will, upon request, provide the other Parties and the QQQ

Trust with copies of any internal audit reports that the auditing entity produces,

or a third party retained by it produces, on any subject that is related to the

Parties’ performance of this Agreement, at no cost to the other Parties.




 




20





























 




ARTICLE

11




 




Representations

and Warranties




 




Section 11.01   General

Representations and Warranties.  Each Participant hereby represents and

warrants to each of the other Participants that:




 




(a)                                  it

is duly organized,  validly existing and in good standing

under the Laws of the State where it is domiciled;




 




(b)                                 as

applicable, it has all requisite corporate, limited liability company, or other

power and authority to execute, deliver and perform its obligations under this

Agreement;




 




(c)                                  the

execution, delivery and performance of this Agreement  by the Participant: (i) has been duly authorized by the

Participant; and (ii) will not conflict with, result in a breach of or

constitute a default under any other agreement to which such Participant is a

party to or by which the Participant is bound;




 




(d)                                 it

is duly licensed, authorized or qualified to do business and is in good

standing in every jurisdiction in which a license, authorization or

qualification is required for the ownership or leasing of its Assets or the

transaction of business of the character transacted by it, except where the failure

to be so licensed, authorized or qualified would not have a material adverse

impact  on the Participant’s ability to

fulfill its obligations under this Agreement;




 




(e)                                  it

is, to the best of its knowledge, in compliance in all material respects with

all applicable Laws, the violation of which would have a material impact on its

or any other Participant’s ability to fulfill its obligations under this

Agreement, and has obtained all applicable permits and licenses required of  it in connection with its obligations under

this Agreement;




 




(f)                                    there

is no outstanding litigation, arbitrated matter or other dispute to which it is

a party which, if decided unfavorably to it, would reasonably be expected to

have a Material Adverse Effect on the other Participants’ ability to fulfill

their respective obligations under this Agreement;




 




(g)                                 it

has the right, free and clear of any liens or encumbrances to grant the rights

and deliver any  technology or services

to another Party and perform its obligations under this Agreement.  Further, it warrants and represents that

none of the   technology it provides to

any other Party will violate any patent, copyright, trade secret, trademark,

trade dress, or other intellectual property right of any third party.




 




(h)                                 it

will at all times exercise due care, prudence and diligence in carrying out its

duties and responsibilities under this Agreement.




 




Section 11.02   Specific

Warranties.  Old

Amex hereby represents and warrants that, as of the Effective Date hereof, its

Subsidiaries that existed as of the effective date of the Transaction Documents

have all been either dissolved or have become Subsidiaries




 




21





























 




of Amex.  Nasdaq hereby  warrants and represents that it has the

right, through its wholly owned subsidiary Nasdaq FPS, to permit the listing,

trading and marketing of QQQ on an exchange in a manner that is consistent with

the fiduciary obligations of Nasdaq FPS to the beneficial owners of the QQQ

products.




 




ARTICLE

12




 




Dispute

Resolution




 




Section 12.01   Dispute

Resolution.  Any and all disputes, controversies or

claims arising out of, relating to, or in connection with, this Agreement,

including any question regarding its existence, validity, breach, scope or

termination, including, but not limited to, any  claims arising in tort (Dispute), but specifically excluding any

Third-Party Claim for which the Participants may be obligated to indemnify each

other pursuant to Article 3 hereof, will be settled in accordance with the

procedures set forth in this Article 12. 

The Participants will first try to settle any Dispute among

themselves.  The Participants will start

this process by referring any Dispute to their Program Executives  (as hereinafter defined).  The Participants’ Program Executives will

meet within five (5) Business Days  of

the receipt by a Participant of written notification  of the existence of such Dispute.  If the Program Executives fail to timely meet or are unable to

resolve the Dispute after having made a good faith effort to do so, or if more

than five (5) days have elapsed after the Program Executives’ initial meeting

to discuss such Dispute, then on the request of any Participant: (i) if the

Dispute involves the Parties’ performance under the Technology Transition Agreement

it will be referred to the Special Technology Consultant pursuant to the

provisions of Section 12.03 herein; or (ii) if any Party to a Dispute involving

the Parties’ performance under the Technology Transition Agreement shall

determine in its good faith business judgment, that the Dispute has a “special

and significant economic impact,” the Dispute shall be referred immediately to

“fast track” binding arbitration pursuant to the provisions of Section 12.04

herein. All other Disputes among the Participants shall, on the request of any

Participant, be referred first to non-binding mediation pursuant to the

provisions of Section 12.02 herein. 

Except as to any dispute concerning a Third-Party Claim which has been

brought against one or more of the Participants in a court of competent

jurisdiction and which is subject to indemnification under Article 3 herein,

the Participants agree that the dispute resolution procedures set forth in this

Article 12 will be the exclusive method of resolving any Dispute.




 




Section

12.02   Non-Binding Mediation.  Except

as set forth in Section 12.01 herein, the Participants will submit all Disputes

to non-binding mediation.  The

Participants involved, however,

shall have the right to submit any Dispute that has been identified as one that

the Participants want to resolve in an expedited manner directly to

“fast-track” binding arbitration without first attempting to mediate such

Dispute.  The Participants will start

the mediation process by filing a Request for Mediation with the American

Arbitration Association (AAA).

The Request for Mediation must include a brief description of the nature of the

Dispute. The appropriate administrative fee must also be submitted to AAA with

the Request for Mediation.  AAA will

then select a mediator that has experience in the subject matter of the Dispute

from its roster of




 




22





























 




available mediators within ten (10) days and will provide a provide a

biographical sketch of the mediator to the Participants.  If the mediator is not reasonably acceptable

to all Participants involved in such Dispute, any  Participant involved in the Dispute may request that the AAA

replace the mediator with another mediator from the AAA’s roster.  The mediator will then meet with the

Participants to resolve the Dispute on the first mutually available date. The

mediation will be conducted in accordance with the Commercial Mediation Rules

of the AAA.  The Participants may agree

in writing upon a time limit for the resolution of the Dispute through

mediation, but absent such agreement the mediation shall continue for no more

than thirty (30) days from the appointment of the mediator.  If the Participants reach an agreement

through mediation, they will put the terms of their agreement in writing and

execute and exchange releases of claims. 

If: (i) the mediator is unable to resolve the Dispute within the time

limit agreed upon in writing by the Participants;  or (ii) any Participant to the mediation is dissatisfied with the

results of such mediation, then any Participant to the Dispute may demand that

the Dispute  be referred to “fast track”

binding arbitration pursuant to the procedures set forth in Section 12.04

herein. The Participants will share equally in the cost of any mediation

initiated pursuant to this Section 12.02.




 




Section 12.03   Special

Technology Consultant.  The Parties will

mutually agree upon a special technology consultant (Special Technology Consultant) who has significant

personal experience and knowledge of the securities industry and the technical

systems that are used by companies in such industry. Any individual selected by

the Parties to act as the Special Technology Consultant will immediately

disclose any conflict of interest that could have an impact upon his judgment

in fulfilling his responsibilities as the Special Technology Consultant.  Each Party agrees that it will not retain

the individual that is serving as the Special Technology Consultant to perform

other services, while serving as the Special Technology Consultant, without the

prior written approval of the other Parties. 

The Special  Technology

Consultant will be solely responsible for: (i) monitoring the Parties’

performance under the Technology Transition Agreement; and (ii) resolving all

Disputes, by the informal or formal procedures set forth in this Section 12.03,

relating to the provision of Nasdaq Technology, except those Disputes that have

been identified, in its good faith business judgment, by a Party to this

Agreement as having a “special and significant economic impact.”




 




Section 12.03.1  Procedures.  The

Special Technology Consultant may informally resolve any issue or Dispute

relating to Nasdaq Technology with the concurrence of the Parties. The Special

Technology Consultant may also formally resolve any  Dispute relating to Nasdaq Technology by conducting an

arbitration in accordance with such rules as the Special Technology Consultant

determines to be applicable.  The

arbitration of a technology-related Dispute will be commenced by the

simultaneous submission of a statement of claim to the Special Technology

Consultant and the opposing Party or Parties at the addresses specified in

Section 14.03 herein.  The opposing

Party or Parties will then have such period of time as the Special Technology

Consultant permits to submit a statement of defense. Within five (5) days of

receiving the submission of a statement of claim, any of the opposing Parties

may serve a notice on the Special Technology Consultant and the other Parties

that it considers the Dispute to have




 




23





























 




a “special and significant economic impact,” in which case the Dispute

shall be resolved under Section 12.04 below. If a Party fails to file a

statement of defense within the time limit set forth by the Special Technology

Consultant, the Special Technology Consultant may proceed with the arbitration.




 




Section

12.03.2  Powers.  Unless the Parties at any time agree

otherwise, the Special Technology Consultant shall have the power upon the

application of any Party or his or her own motion, but in either case only

after giving the Parties a reasonable opportunity to state their views, to: (i)

take whatever interim or final measures he or she deems necessary, including

temporary or permanent injunctive relief and measures for the preservation,

protection, conservation, disposal or termination, of any property, license, or

things under the control of any Party including the payment and apportionment

of damages; (ii) order any Party to produce to the Special Technology

Consultant and to the other Parties for inspection, and to supply copies of,

any documents or classes of documents in their possession, custody or power

which the Special Technology Consultant deems to be relevant; (iii) conduct

evidentiary hearings; (iv) conduct any other such inquiries as may, to the

Special Technology Consultant, be necessary or expedient; or (v) extend or

abbreviate any time limits provided in this section or otherwise agreed upon by

the Parties  Any measure, order, or

award made by the Special Technology Consultant shall adhere to the terms of

this Agreement and the substantive Law of the State of New York. The Special

Technology Consultant may award damages in any amount that the Special Technology

Consultant determines to be reasonable, including up to three (3) times the

amount of damages actually incurred by the Parties that were adversely impacted

by another Party’s failure to act in good faith.  The arbitration conducted by the Special Technology Consultant

shall be final, conclusive and binding upon the Parties, their successors and

assigns. Any arbitration award shall be enforceable against a Party and

judgment may be entered thereon in any court of competent jurisdiction. If the

Dispute has been designated as having a “special and significant economic

impact” and the Special Technology Consultant determines that any Party’s delay

in the implementation of the provisions of the Technology Transition Agreement

is reasonable or unreasonable, he or she may so opine on the Party’s acts or

omissions in dispute and inform the arbitrators that are attempting to resolve

any Dispute arising from or related to such delay of his or her opinion.  This notification will set forth the Special

Technology Consultant’s justification for determining that such delay was

reasonable or unreasonable.




 




Section

12.03.3  Replacement of Special

Technology Consultant. 

The initial Special Technology Consultant shall be *****.  The Special Technology Consultant may resign

at any time by so notifying the Parties in writing, such resignation to be

effective upon appointment of a successor Special Technology Consultant.  The




 






















*****  Confidential Treatment has been requested for the redacted

portions.  The confidential redacted

portions have been filed separately with the Securities and Exchange

Commission.




 




24





























 




Parties may also remove the Special Technology Consultant at any time

by so notifying the Special Technology Consultant in a writing signed by all

Parties and may appoint a successor by unanimous written consent.  If the Special Technology Consultant resigns

or is removed, or if a vacancy exists for any reason, the Parties will promptly

agree upon the successor Special Technology Consultant, but failing such

agreement by the Parties, the successor shall be designated by the  AAA upon the request of any Party to this

Agreement.  Any Special Technology

Consultant appointed by the AAA shall have significant personal experience and

knowledge of the securities industry and the technical systems that are used by

companies in such industry.




 




Section 12.04   Arbitration

Procedures.  Except as provided in Section 12.03, and except for any Third

Party Claim brought in a court of competent jurisdiction by a Third Party for

which the Participants may be obligated to indemnify each other pursuant to

Article 3 herein, any Dispute not resolved in accordance with Sections 12.01

and 12.02, shall be finally settled by arbitration in accordance with this

Section 12.04.   Any arbitration

shall be (i) final, conclusive and binding upon the Participants, their

successors and assigns, (ii) conducted in New York, New York by three (3)

impartial arbitrators acting by majority vote in accordance with the Commercial

Arbitration Rules of the AAA (Rules); and (iii) any measure taken, order, or award

issued therein shall adhere to the terms of this Agreement and the substantive

Law of the State of  New York. If the

Participants are unable to resolve any Dispute (other than a Dispute concerning

a Third-Party Claim) through the procedures set forth in Section 12.01, 12.02

or 12.03 herein, a Participant hereto may commence proceedings hereunder by

delivering a written notice from its Program Executive or such Executive’s

designee (the Demand) to the other Participants

providing a reasonable description of the Dispute. The Participant initiating

the arbitration will forward two (2) copies of the Demand and this Article 12

to the AAA together with the appropriate filing fee. The AAA will promptly send

the Participants a list of suitable arbitrators, who have been admitted to

practice for at least fifteen (15) years and who are experienced in the

arbitration of large, complex commercial disputes, that the AAA has chosen from

its National Panel of Commercial Arbitrators upon its receipt of the

Demand.  The Participants will then

select two (2) impartial arbitrators that are reasonably acceptable to them

from the list provided to them by the AAA within five (5) days of their receipt

of such list.  The two arbitrators

selected by the Participants will then select a third arbitrator from the AAA’s

roster that will serve as the chairperson of the arbitration panel (Panel) within five

(5) days of their having been selected by the Participants.  If the Participants are unable to agree upon

the selection of  arbitrators within

such five (5) day period, they will so notify the AAA and the AAA will then

promptly select two (2) arbitrators from its National Panel of Commercial Arbitrators.  The two (2) arbitrators selected by the AAA

will then appoint the third arbitrator from the AAA’s National Panel of

Commercial Arbitrators. The third arbitrator will serve as the chairperson of

the Panel.  If an arbitrator so selected

becomes unable to serve, his or her successors shall be similarly selected or

appointed.  Each Participant shall

provide to the other Participants to the Dispute, reasonably in advance of any

hearing, copies of all documents which a Participant intends to present in such

hearing and each Participant shall be allowed to conduct reasonable discovery

through written requests for information, document requests, requests for

stipulation of fact and




 




25





























 




depositions. The nature and extent of such discovery shall be

determined by the Participants; provided

that, if the Participants cannot agree on the terms of such

discovery, the nature and extent thereof shall be determined by the Panel which

shall take into account the needs of the Participants and the desirability of

making discovery expeditious and cost effective.  The Participants further acknowledge and agree that discovery

relating to any Dispute that has been submitted for “fast track” arbitration

must be completed and the presentation of the Dispute to the Panel must

commence no later than thirty (30) days after the appointment of the Panel

unless such time period has been extended by the mutual agreement of all of the

Participants to this Agreement.  The

Participants further agree that the Panel must issue its decision on any

Dispute that has been submitted for “fast track” arbitration within sixty (60)

days of the appointment of the Panel 

unless all of the Participants to this Agreement agree in writing to

extend such deadline for good cause shown. 

Any award by the Panel must be in writing and shall specify the factual

and legal basis for the award.  The

Participants hereby agree that monetary damages may be inadequate and in

addition to the award of damages the arbitrators may provide whatever interim

or final measures they deem necessary, including permanent injunctive relief,

which may encompass an award of specific performance, and/or other measures for

the preservation, protection, conservation or disposal or termination of any

property, license or things under the control of any Party, including the

payment and apportionment of damages. 

The arbitrators may  award

damages in any amount that they determine to be  reasonable.  The

arbitrators may also award damages up to three (3) times the amount of damages

actually incurred by any Party that was adversely impacted by another Party’s

failure to act in good faith.  The Panel

shall apportion all costs and expenses of arbitration, including the Panel’s

fees and expenses and fees and expenses of experts, between the prevailing and

non-prevailing Participants as the Panel in its sole discretion deems fair and

reasonable.  Any arbitration award shall

be binding and enforceable against the Participants hereto and judgment may be

entered thereon in any court of competent jurisdiction.




 




Section 12.05   Damages.  Except as with respect to the provisions set

forth in:  Sections 12.03.2 and 12.04

herein that allow the award of up to three times the amount of damages actually

incurred due to a Party’s failure act in good faith, in no event may the Panel

or the Special Technology Consultant award consequential, special, exemplary or

punitive damages. The Panel or the Special Technology Consultant may, however, award consequential damages

against any Participant that violates the provisions of Article 4 herein

relating to the protection of Confidential Information.




 




Section 12.06   Continuity

of Services. 

Each Party acknowledges that the timely and complete performance of its

respective obligations pursuant to this Agreement is critical to the business

and operations of the other Parties. 

Accordingly, in the event of a Dispute between any of the Parties, that

arises from or is related to the Parties’ performance of this Agreement, the

Parties agree that, absent the award of interim relief by the Special

Technology Consultant under Section 12.03.2 or the arbitration Panel under

Section 12.04 herein, during the resolution of the Dispute:  (i) they will not interrupt the provision of

any technology or services; and (ii) all of the Parties  will continue to so perform their other

respective obligations under this Agreement in good faith.




 




26





























 




ARTICLE

13




 




Financial

Procedures




 




Section 13.01   Payment

Procedures.  Amex

will provide Nasdaq with monthly reports *****.  Nasdaq will review these reports and then

invoice Amex  quarterly for fees due

from Amex for its right to list, trade and market QQQ and ETFs pursuant to the

provisions of Article 2 herein.  Any

additional costs or expenses incurred by the Parties in fulfilling their

obligations under this Agreement may be allocated among the Parties as they may

mutually agree upon.  The format of all

reports and invoices will be mutually agreed upon by the Parties.  Each Party will:  (i) review each report or invoice upon its receipt of such

document  in order to verify that it

contains the correct information and is in the format agreed upon by the

Parties; and (ii) pay all invoices not then in dispute within thirty (30) days

of its receipt of such invoice. If any Party 

disputes the amount of any invoice or the accuracy of any report, it

will notify the Party that sent such document of its disagreement within five

(5) Business Days of its receipt of such document.  The Parties’ Program Executives will then meet in an attempt to

resolve such discrepancies.  If the

Parties’ Program Executives are unable to resolve any such disagreement within

five (5) Business Days of being notified of the Dispute, then the Party that

received the document will pay all amounts not then in dispute. The Parties

will then resolve any remaining disagreements through the procedures set forth

in Article 12 herein. None of the Parties will have a right of set-off for

amounts due or alleged to be due under the terms of this Agreement.  All invoices may be paid by electronic funds

transfer.




 




Section 13.02   Overdue

Invoices. 

Each Party may charge the other Parties Interest on any undisputed

invoices that the other Parties failed to pay within forty-five (45) days of

their receipt of such invoice. This Interest may be assessed monthly.




 




ARTICLE

14




 




Miscellaneous




 




Section 14.01   Entire Agreement.  This Agreement and the exhibits to this

Agreement, the  Technology Transition

Agreement, the drawing of the Globe logo, and the License Agreement constitute

the entire agreement among the Participants with respect to the subject matter

hereof and supersede all prior written and oral and all contemporaneous written

and oral agreements and understandings with respect to the subject matter

hereof.




 






















*****  Confidential Treatment has been requested for the redacted

portions.  The confidential redacted

portions have been filed separately with the Securities and Exchange Commission.




 




27





























 




Section 14.02   Governing Law.  This Agreement shall be governed by and construed in accordance

with the laws of the State of New York regardless of the laws that might

otherwise govern under principles of conflicts of laws applicable thereto.




 




Section 14.03   Notices.  All notices and other communications

hereunder shall be in writing and shall be deemed to have been duly given when

delivered in person, by express or overnight mail delivered by a nationally

recognized air courier (with delivery charges prepaid and a signed receipt

confirming delivery is obtainable)  or

by  certified mail (postage prepaid,

return receipt requested) to the respective Participants or their successors or

designees as follows:




 




(a)           if

to Amex:




 




American Stock Exchange, LLC




86 Trinity Place




New York, New York 10006




Attn:  *****

- Senior Vice President




 




With, in

the case of notice of breach or default, a required copy to:




American

Stock Exchange, LLC




86

Trinity Place




New

York, New York 10006




Attn:  **** - Associate General Counsel




 




(b)           if

to NASD:




 




National Association of Securities Dealers, Inc.




1735 K Street, N.W.




Washington, D.C. 20006




Attn:  **** -

Chief Administrative Officer




 




With, in

the case of notice of breach or default, a required copy to:




National

Association of Securities Dealers, Inc.




1735 K

Street, N.W.




Washington,

D.C.  20006




Attn:  Office of General Counsel - Contracts Group




 






















*****  Confidential Treatment has been requested for the redacted

portions.  The confidential redacted

portions have been filed separately with the Securities and Exchange

Commission.




 




28





























 




(c)           If

to Nasdaq:




 




The Nasdaq Stock Market, Inc.




One Liberty Plaza




165 Broadway




New York, New York 10006




Attn:  *****-

President




 




With, in

the case of notice of breach or default, a required copy to:




The

Nasdaq Stock Market, Inc.




1735 K

Street, N.W.




Washington,

D.C. 20006




Attn:  Office of General Counsel - Contracts Group




 




(d)           If

to Old Amex:




 




American Stock Exchange, Inc.




86 Trinity Place




New York, New York 10006




Attn:  **** -

Corporate Secretary




 




With, in

the case of notice of breach or default, a required copy to:




American

Stock Exchange, Inc.




86

Trinity Place




New

York, New York 10006




Attn:  **** - Associate General Counsel




 




(e)           If

to Nasdaq FPS:




 




Nasdaq Financial Products Services, Inc.




1735 K Street, N.W.




Washington, DC 20006




Attn:  ****




 




With, in

the case of notice of breach or default, a required copy to:




The

Nasdaq Stock Market, Inc.




1735 K

Street, N.W.




Washington,

D.C. 20006




Attn:  Office of General Counsel - Contracts Group




 






















*****  Confidential Treatment has been requested for the redacted

portions.  The confidential redacted

portions have been filed separately with the Securities and Exchange Commission.




 




29





























 




or to such other address as the Participant to whom notice is given may

have previously furnished to the others in writing in the manner set forth

above.  Any notice or communication

delivered in person shall be deemed effective on delivery.  Any notice or communication sent by air

courier shall be deemed effective on the first business day at the place at

which such notice or communication is actually received following the day on

which such notice or communication was sent.




 




Section 14.04   Program

Executives. 

Each Participant will also appoint a senior  manager (Program Executive) who will serve as the primary

representative of that Participant under this Agreement.  Each Participant may, in its sole discretion,

change its Program Executive at any time upon notice to the other

Participants.  Each Program Executive

will: (i) have overall responsibility for managing and coordinating the

daily performance of his or her Participant’s obligations under this Agreement;

and (ii) be authorized to act for and on behalf of his or her Participant

with respect to all matters relating to this Agreement including any amendment

thereof.  Notwithstanding the foregoing,

a Program Executive may, upon notice to the other Participants, delegate such

of his or her responsibilities to such other employees of his or her

Participant as the Program Executive deems appropriate.




 




Section 14.05   Parties

in Interest. 

This Agreement shall be binding upon and inure solely to the benefit of

each Participant hereto, and nothing in this Agreement, express or implied, is

intended to confer upon any other Person any rights or remedies of any nature

whatsoever under or by reason of this Agreement, except for Article 3 (which is

intended to be for the benefit of the Persons provided for therein and may be

enforced by such Persons).




 




Section 14.06   Counterparts.  This Agreement may be executed in one or

more counterparts, each of which shall be deemed to be an original but all of

which shall constitute one and the same agreement.




 




Section 14.07   Binding

Effect. 

This Agreement shall inure to the benefit of and be binding upon the

Participants hereto and their respective legal representatives and successors

or assigns.  The Exhibits attached hereto

are an integral part of this Agreement and are incorporated into this Agreement

and made a part hereof.




 




Section 14.08   Assignment.  No Participant may assign this Agreement or

its rights or obligations hereunder without the prior written consent of the

other Participants, which consent will not be unreasonably withheld,

conditioned or delayed, provided, however, that any Participant

may assign this Agreement to a corporation controlling, controlled by or under

common Control with the assigning Participant without releasing the assignor

from its obligations under this Agreement. The consent of a Participant to any

assignment of this Agreement will not constitute such Participant’s consent to

further assignment.  This Agreement will

be binding on the Participants and their respective successors and permitted

assigns.  Any assignment in

contravention of this subsection will be void.




 




30





























 




Section 14.09   Change

of Control. 

At least ninety (90) days prior to the effective date thereof or such

fewer number of days as is reasonably practicable, Amex will notify NASD and

Nasdaq of any: (i) sale of substantially all of the Assets of Amex, (ii)

Person, other than NASD, acquiring more than fifty percent (50%) of the voting

securities of Amex, (iii) merger involving Amex; or (iv) substantially similar

transaction.




 




Section 14.10   Independent

Contractor.  Each Party  and its

Representatives, in performing this Agreement, are acting as independent

contractors and not as employees or agents of the other Parties. Each Party

will provide all insurance coverage required by applicable laws, regulations,

or employment agreements, including, without limitation, medical and worker’s

compensation. Each Party further represents and warrants that none of the other

Parties nor any individual employed by or associated with such Party shall be

considered an employee of the other Parties to this Agreement for any purpose

whatsoever.  Each Party will be

responsible for payment of all unemployment, social security, and other payroll

taxes and all benefits of all of its individuals who are engaged in the

performance of this Agreement.  If, at

any time, any liability is asserted against any Party for unemployment, social

security or any other payroll tax related to another Party or any individuals

or subcontractors employed by or associated with another Party, then such Party

will indemnify and hold harmless the Party that liability is asserted against

from any such liability, including, without limitation, any such taxes, any

interest or penalties related thereto, and reasonable attorney’s fees and

costs.




 




Section 14.11   Severability.  If any term or other provision of this

Agreement is invalid, illegal or incapable of being enforced by any rule of law

or public policy, all other conditions and provisions of this Agreement shall

nevertheless remain in full force and effect so long as the economic or legal

substance of the transactions contemplated hereby is not affected in any manner

materially adverse to any Participant. 

Upon such determination that any term or other provision is invalid,

illegal or incapable of being enforced, the Participants hereto shall negotiate

in good faith to modify this Agreement so as to effect the original intent of

the Participants as closely as possible in an acceptable manner to the end that

transactions contemplated hereby are fulfilled to the fullest extent possible.




 




Section 14.12   Survival Of Provisions.  The terms of this Agreement

apply to those rights that survive any cancellation, termination, or

rescission, namely—Release of Claims (Section 1.06), Access to Information

(Article 4), Ownership (Article 9), and any warranties. Payment obligations of

one Party to the other arising prior to the cancellation, termination or

recession of this Agreement will survive the expiration of termination of this

Agreement.




 




Section 14.13   Failure

or Indulgence Not Waiver; Remedies Cumulative.  No failure or delay on the part of any

Participant hereto in the exercise of any right hereunder shall impair such

right or be construed to be a waiver of, or acquiescence in, any breach of any

representation, warranty or agreement herein, nor shall any single or partial

exercise of any such right preclude other or further exercise thereof or of any

other right. All rights and remedies existing under this Agreement are

cumulative to, and not exclusive of, any rights or remedies otherwise

available.




 




31





























 




Section 14.14   Amendment.  No change or amendment will be made to this

Agreement or with respect to specific provisions of this Agreement except by an

instrument in writing signed by each of the Participants affected by such

change or amendment.




 




Section 14.15   Covenant

of Further Assurances.  The Participants covenant

and agree that, subsequent to the execution and delivery of this Agreement and,

without any additional consideration, each Participant will execute and deliver

any further legal instruments and perform any acts that are or may become

necessary to effectuate the purposes of this Agreement.




 




Section 14.16   Export.  Each Party agrees that it will comply with

all applicable export laws and regulations of the United States. Each Party

will cooperate with the other Parties in connection the requirements of this

Article 14, including promptly furnishing any end-user certificates, affidavits

regarding re-export or other applicable certificates or documents.




 




Section 14.17   Publicity.  Except as otherwise set forth in this

Agreement, each Participant will: (i) submit to the other Participants all

advertising, written sales promotions, press releases and other publicity

matters in which the other Participants’ names or Mark(s) is/are mentioned or

which contains language from which the connection of said name or Marks may be

inferred or implied (in each instance, including the Marks), and (ii) not

publish or use such advertising, sales promotions, press releases or publicity

matters without the other Participants’ prior written consent.




 




Section 14.18   Authorization.  This Agreement will not be binding upon

the Participants unless executed by an authorized officer of each

Participant.  Amex, Nasdaq and NASD, Old

Amex and the Nasdaq FPS and the persons executing this Agreement represent that

each such persons are duly authorized by all necessary and appropriate

corporate or other action to execute this Agreement on behalf of their

respective Participants.




 




IN

WITNESS WHEREOF, each of the Participants has caused this

Agreement to be executed on its behalf by its officers thereunto duly

authorized on the day and year first above written.




 




	

  American Stock Exchange, LLC


  (Amex)


  	

   


  	

  National Association of

  Securities


  Dealers, Inc. (NASD)


  
	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  
	

  By:


  	

  /s/ Salvatore F. Sodano


  	

   


  	

  By:


  	

  /s/ Robert R. Glauber


  	

   


  
	

   


  	

   


  	

   


  
	

  Name: Salvatore F. Sodano


  	

   


  	

  Name: Robert R. Glauber


  
	

   


  	

   


  	

   


  
	

  Title: 

  Chairman and CEO


  	

   


  	

  Title: Chairman and Chief Executive


  Officer


  
						





 




32





























 




	

  The Nasdaq Stock Market, Inc. (Nasdaq)


  	

   


  	

  Nasdaq Financial Products Services, Inc. (Nasdaq FPS)


  
	

   


  	

   


  	

   


  
	

  By:


  	

  /s/ Richard G. Ketchum


  	

   


  	

  By:


  	

  /s/ John L. Jacobs


  	

   


  
	

   


  	

   


  	

   


  
	

  Name: Richard G. Ketchum


  	

   


  	

  Name: John L. Jacobs


  
	

   


  	

   


  	

   


  
	

  Title: President


  	

   


  	

  Title:  Chief

  Executive Officer


  
	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  
	

  American Stock Exchange


  Membership Corporation (Old Amex)


  	

   


  	

  American Stock Exchange


  Membership Corporation (Old Amex)


  
	

   


  	

   


  	

   


  
	

  By:


  	

  /s/ Anthony J. Boglioli


  	

   


  	

  By:


  	

  /s/ Robert M. Gordon


  	

   


  
	

   


  	

   


  	

   


  
	

  Name: Anthony J. Boglioli


  	

   


  	

  Name: Robert M. Gordon


  
	

   


  	

   


  	

   


  
	

  Title: 

  Director


  	

   


  	

  Title: 

  Director


  
	

   


  	

   


  	

   


  
	

  American Stock Exchange


  Membership Corporation (Old Amex)


  	

   


  	

  American Stock Exchange


  Membership Corporation (Old Amex)


  
	

   


  	

   


  	

   


  
	

  By:


  	

  /s/ Edwin S. Crooks


  	

   


  	

  By:


  	

  /s/ John T. McGowan


  	

   


  
	

   


  	

   


  	

   


  
	

  Name: Edwin S. Crooks


  	

   


  	

  Name: John T. McGowan


  
	

   


  	

   


  	

   


  
	

  Title: 

  Chairman


  	

   


  	

  Title: 

  Director


  
									





 




33