Exhibit

10.4




 




SECOND AMENDMENT TO


EWN II AGREEMENT




 




THIS

SECOND AMENDMENT TO EWN II AGREEMENT (hereinafter referred to as the

“Amendment”) by and between MCI WORLDCOM Communications, Inc. (“WorldCom”) and

The Nasdaq Stock Market, Inc. (“Nasdaq”), is binding when signed by Nasdaq,

provided it is subsequently accepted by WorldCom. The rates, charges, discounts

and commitments set forth herein are effective no later than June 1, 2002

(“Second Amendment Effective Date”).




 




WITNESSETH:




 




WHEREAS,

heretofore, Nasdaq and WorldCom’s predecessor in interest entered into that

certain EWN II Agreement dated as of November 19, 1997, as amended by that

certain First Amendment to EWN II Agreement signed by Nasdaq on January 5, 2001

(the “Agreement”), with respect to certain services to be provided to Nasdaq by

WorldCom, as more particularly described therein; and




 




WHEREAS,

Nasdaq and WorldCom wish to amend the Agreement as set forth herein;




 




NOW,

THEREFORE, in consideration of the premises, the terms and conditions stated herein,

and other good and valuable consideration, the receipt and sufficiency of which

is hereby acknowledged, the parties hereto hereby agree as follows:




 




1.             Definitions.  All capitalized terms used

herein and not expressly defined herein shall have the respective meanings

given to such terms in the Agreement. 

All references in the Agreement to the defined term “MCI” shall be

deemed amended to read  “WorldCom” and

refer to MCI WORLDCOM Communications, Inc.




 




2.             Removal

of Achievement Credits.  The

Agreement is hereby amended in Section 3.1 by deleting the second and third

sentences therein in their entirety.




 




3.             Revenue

Commitment.  The Agreement is

amended in Section 3.3 by deleting the existing provision in its entirety and

inserting the following in lieu thereof:




 




“3.3.  Revenue Commitment.  The

minimum revenue commitment under this Agreement shall be *****, net of all applicable federal, state and local taxes that Nasdaq agrees

to pay in Section 3.4 (said amount shall hereinafter be referred to as the “Revenue

Commitment”), calculated using all charges incurred for WorldCom Services based

on **** (as ****

may be amended from time to time by mutual

agreement).




 




In the event that Nasdaq fails to satisfy the

Revenue Commitment by May 31, 2002 (commencing with charges incurred as of the

Effective Date and ending with charges incurred as of May 31, 2002), or in the

event Nasdaq terminates the Agreement on or prior to May 31, 2002, for reasons

other than material breach by WorldCom, or in the event WorldCom terminates

this Agreement prior to May 31, 2002, due to material breach by Nasdaq, then

Nasdaq shall pay WorldCom (a) an amount (which both parties agree is

reasonable) equal to the difference between: (i) the aggregate charges incurred

from the Effective Date to the termination




 






















***** 

Confidential Treatment has been requested for the redacted

portions.  The confidential redacted

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




 





























 




date and (ii) the Revenue Commitment (“Shortfall Amount”).  WorldCom will credit toward such Revenue

Commitment any amounts incurred by Nasdaq during such initial term and

subsequently paid in accordance with this Agreement.  If this Agreement is terminated and there follows such

termination a De-Installation Plan period as described in Section 29.3, then

Nasdaq shall be entitled to receive credit toward  achievement of the Revenue Commitment any amounts incurred and

subsequently paid in connection with such De-installation Plan period referred

to in Section 29.3. Any Shortfall Amount paid by Nasdaq shall be credited

against charges incurred by Nasdaq in connection with a De-Installation Plan

period.




 




Nasdaq may terminate the Agreement prior to the

end of the initial term (as described in Section 29.1 below) (a) for

convenience or (b) for reasons other than (1) material breach by WorldCom or

(2) as otherwise permitted in the Agreement for Nasdaq to terminate without

liability, or WorldCom may terminate this Agreement due to material breach by

Nasdaq, provided that upon such termination by either party, in addition to any

Shortfall Amount described above, Nasdaq shall pay WorldCom an amount (which

both parties agree is reasonable) equal to the aggregate sum of: (i) each fixed

monthly recurring charge specified in Attachment 3 multiplied by (ii) the

number of calendar months (prorated for partial months) remaining in the

Contract Period (as described in Attachment 3) that corresponds to each fixed

monthly charge on the date of termination (“Early Termination Charge”).”  Notwithstanding the preceding, Nasdaq shall

not be liable for any Early Termination Charge where the Agreement provides

that it may be terminated without Nasdaq incurring any further liability.




 




4.             Technology

Relook.  The Agreement is amended in

Section 8.2 by inserting the following new sentence to the end thereof:  “The rights and obligations set forth in

this Section 8.2 are intended to represent general day-to-day obligations of

the parties, and are not intended to be construed as requiring the same type of

obligations as set forth in Section 8.3 below .”




 




The Agreement is further amended by adding a new Section 8.3 to read as

follows:




 




“8.3   If at

any time before *****,

Nasdaq provides WorldCom with a comprehensive document that sets forth Nasdaq’s

specific requirements for the Network (or network services in replacement

thereof), as well as any technologies or concepts that Nasdaq desires for

WorldCom to review in connection therewith, then no later than ****, WorldCom shall deliver to Nasdaq a

written proposal that responds to Nasdaq’s requirements and describes any

significant new or improved physical (i.e., hardware or software) technologies

(collectively, “New Technology”) then generally available in the marketplace

that WorldCom believes would materially improve upon the functional and/or

financial performance of the WorldCom Service to Nasdaq taking into

consideration the geographic scope of the Network, the breadth of the services

provided, and the cost of acquiring the new technology. WorldCom’s proposal

will also address any technologies or concepts Nasdaq requested to be

reviewed.  No later than **** after receipt of WorldCom’s proposal,

Nasdaq shall provide a written response to WorldCom that either (a) accepts the

WorldCom proposal, or (b) rejects all or a portion of the WorldCom proposal in

good faith for reasons that are specifically set forth in its rejection notice,

which reasons may include, without limitation, solely pricing concerns.  If Nasdaq rejects WorldCom’s proposal in

whole or in part, WorldCom shall deliver to Nasdaq a second proposal no later

than **** after WorldCom’s receipt

of Nasdaq’s written rejection. 

Thereafter, the parties shall arrange to promptly meet to discuss their

stated positions and attempt to resolve any outstanding differences.  The parties shall seek in good faith to

reach agreement by ****, as to all

issues, including without limitation (a) the applicability of any New

Technology to the WorldCom Service as




 






















***** 

Confidential Treatment has been requested for the redacted

portions.  The confidential redacted

portions have been filed separately with the Securities and Exchange

Commission.




 




2





























 




contemplated in this paragraph, (b) adjustments to Nasdaq’s

rates and charges hereunder in order to implement New Technology, if any, and

(c) the schedule for implementing New Technology, if any.  If Nasdaq accepts WorldCom’s proposal or the

parties reach agreement regarding New Technology, the parties shall promptly

enter into an appropriate amendment to the Agreement and any new or adjusted

pricing would be effective ****.   If the parties are unable to reach

agreement by ****, then

Nasdaq may provide WorldCom with written notice no later than ****, that Nasdaq elects to terminate the

Agreement effective ****.

Termination of the Agreement by Nasdaq as permitted under this paragraph would

be without liability for early termination charges set forth in Section 3.3 of

this Agreement, however the provisions of Section 18.4  below shall not apply  to such a termination by Nasdaq.   If the parties agree that there is no New

Technology, the Agreement shall continue in full force and effect in accordance

with its terms.”




 




5.             Installation Schedule.  The Agreement is amended in Section 9.2 by deleting the provision in its entirety and

inserting the following in lieu thereof:




 




“The parties will agree on a schedule ending 18 months from the

Effective Date that includes the milestones in Attachment 7 and all

Installations for Subscribers on EWNI and which is subject to change by mutual

agreement of the parties (Installation Schedule).  WORLDCOM will use its Best Efforts to meet

the Installation Schedule in 18 months. 

For 20 months from the Effective Date, the remedies under Attachment 7

do not apply to any Installation.  After

the end of the 20th month following the Effective Date, WORLDCOM shall be

subject to the remedies in Attachment 7 with respect to all Installations.  The application of remedies in accordance

with this Section shall be subject to Section 20.2.”




 




6.             Staffing

Levels.  The Agreement is amended in

Section 14.4 by amending the first sentence therein to read as follows:




 




“WorldCom will maintain the number of dedicated

professional personnel, and the professional grade levels of such personnel,

supporting Nasdaq, including, but not limited to, NCC and operations personnel,

engineering resources, and account team personnel (performing technical

consultation services, sales/business services and customer consultation

support services) at the number and professional grade levels as of Nasdaq’s

execution of this Agreement.  WorldCom

will not reduce the number or the professional grade levels of such personnel

supporting Nasdaq without Nasdaq’s prior written approval which will not be

unreasonably withheld or delayed. WorldCom’s obligations under the preceding

two sentences will not be construed to (a) limit WorldCom’s ability to

terminate any such personnel for cause (provided that “cause” shall not mean

reductions in force or similar cost-cutting practices) in accordance with

company policies, provided WorldCom uses its reasonable efforts to promptly

find a suitable replacement for such employee, or (b) place WorldCom in default

under this paragraph as a result of staffing vacancies arising from voluntary

employee action (e.g., resignations) or promotion, provided that WorldCom uses

its reasonable efforts to promptly find a suitable replacement for such

employee.  No more than once per

quarter, upon Nasdaq’s written request, WorldCom will provide Nasdaq with a

report detailing the WorldCom personnel assigned to Nasdaq and their

professional grade levels (i.e., titles); WorldCom’s failure to deliver such a

report will not be deemed a breach of a material obligation by WorldCom under

the Agreement provided that WorldCom is otherwise in actual compliance with its

staffing obligations under the preceding sentences of this Section 14.4.  Nothing in this paragraph will be deemed to

limit WorldCom’s obligations under Section 14.6 below.”




 




7.             Notices.  The Agreement is amended in Section 16.1 by

deleting the contact address for WorldCom and inserting the following in lieu

thereof:




 




3





























 




	

  “Name:


  	

   


  	

  *****


  
	

  Title:


  	

   


  	

  ****


  
	

  Address:


  	

   


  	

  5 International Drive


  
	

   


  	

   


  	

  Rye Brook, NY 10573


  
	

  Telephone:


  	

   


  	

  ****


  





 




The Agreement is amended in Section 16.1 by deleting the contact

address for Nasdaq and inserting the following in lieu thereof:




 




	

  “Name:


  	

   


  	

  *****


  
	

  Title:


  	

   


  	

  ****


  
	

  Address:


  	

   


  	

  80 Merritt Boulevard


  
	

   


  	

   


  	

  Trumbull, CT 06611


  
	

  Telephone:


  	

   


  	

  ****


  





 




The Agreement is further amended in Section 16.2 by deleting the

contact information for “MCI” and inserting the following in lieu thereof:




 




“For WorldCom:




MCI WORLDCOM

Communications, Inc.




Law and Public Policy –

Business Transactions




5 International Drive




Rye Brook, New York  10573”




 




8.        Warranties;

Exclusivity; Right of First Refusal. 

The Agreement is amended in Section 18.4 by deleting the first sentence

in its entirety and inserting the following in lieu thereof:




 




“18.4.   In

the event that this Agreement is terminated either for cause or as otherwise

permitted in this Agreement (except in the case of termination by Nasdaq

pursuant to Section 8.3 above) or upon expiration of the term hereof, Nasdaq

may provide WorldCom Notice that it intends to license, lease, purchase or

otherwise obtain an assignment of all or any portion of the Separable

Components.”




 




The Agreement is also

amended in Section 18.4 by adding the following sentence to the end of Section

18.4:




 




“The provisions of this paragraph shall also apply to and survive any

rejection, termination or expiration of this Agreement by WorldCom (or its

successors or assigns) in a proceeding under any chapter of the United States

Bankruptcy Code or any other state or federal liquidation, insolvency,

receivership or financial restructuring proceeding.”




 




The Agreement is amended in Section 18.7 by deleting the existing

clause (iii) in its entirety and inserting the following in lieu thereof:




 






















***** 

Confidential Treatment has been requested for the redacted

portions.  The confidential redacted

portions have been filed separately with the Securities and Exchange

Commission.




 




4





























 




“(iii) that the person executing this Agreement on

behalf of Nasdaq has been given the authority to bind Nasdaq and the Agreement

constitutes or will constitute a legally binding and enforceable obligation of

Nasdaq, except as such enforceability may be limited, unless otherwise

provided, by provisions of applicable bankruptcy, insolvency, fraudulent

conveyance, reorganization, moratorium or similar law affecting creditor’s

rights and remedies generally or by general principles of equity;”




 




The Agreement is amended

in Section 18.8 by deleting the existing clause (iii) in its entirety and

inserting the following in lieu thereof:




 




“(iii) that the

person executing this Agreement on behalf of WorldCom has been given the

authority to bind WorldCom  and the

Agreement constitutes or will constitute a legally binding and enforceable

obligation of WorldCom, except as such enforceability may be limited, unless

otherwise provided, by provisions of applicable bankruptcy, insolvency,

fraudulent conveyance, reorganization, moratorium or similar law affecting

creditor’s rights and remedies generally or by general principles of equity;”




 




The Agreement is amended by adding a new Section 18.9 to read as

follows:




 




“18.9   Nasdaq warrants to WorldCom that during the

term of this Agreement, but in no event beyond May 31, 2005 (unless the parties

specifically agree otherwise):




 




(a)   Nasdaq shall obtain all of its EWN Services

solely and exclusively from WorldCom. As used herein, “EWN Services” means

those network transmission, network management, network maintenance, network

monitoring services, and customer premises equipment required by Nasdaq for,

and associated with either: (i) the operation of the enterprise wide network

described in this Agreement but only between, and including, the switches at

each of the Nasdaq data centers and each Subscriber’s premises (and not

including any components or services affecting only the Nasdaq or Subscriber

side of such switches), or (ii) the functionality associated with SDP’s (as

defined in Attachment 3) as of the date of Nasdaq’s execution of the Second

Amendment to the Agreement.  Each party

agrees to negotiate in good faith the pricing for any new or additional EWN

Services. The provisions of the Section 18.9(a) do not survive the completion

of performance or the rejection, termination or expiration of this Agreement.




 




(b)   As long as WorldCom is not in breach of any

of its material obligations under the Agreement, Nasdaq shall give WorldCom the

right to meet or improve upon the lowest bona fide third party offer (including

pricing and material terms and conditions) for the supply of any network

transmission, network management, network and equipment maintenance, network

monitoring services, and/or customer premises equipment other than EWN Services

that is extended to Nasdaq or to any entity that is acquired by Nasdaq.  WorldCom shall have at least, but no more

than, ten (10) business days following its receipt of a written description of

the best such third party offer(s) in which to provide Nasdaq or the subject

entity with WorldCom’s proposal for the subject services.  However, to the extent Nasdaq is subject to

nondisclosure obligations that prohibit disclosure to WorldCom of any

particular third party offer, then Nasdaq shall instead provide WorldCom with a

written description of Nasdaq’s requirements for the subject services and/or

products, including without limitation, pricing.  If Nasdaq determines in its reasonable and good faith discretion

WorldCom’s proposal is equal or superior to the best third party offer(s) in

all material respects and Nasdaq or the affected entity intends to purchase the

subject products and/or services, then Nasdaq shall award, or shall cause the

affected entity to award, the subject services to WorldCom whereupon the

parties shall negotiate in good faith a mutually acceptable contract.   Nothing in this Section




 




5





























 




shall require Nasdaq or

any entity acquired by Nasdaq to violate the terms (e.g., exclusivity

covenants) of any pre-existing written agreement between any such entity and a

third party vendor, provided that neither Nasdaq nor any acquired entity shall

renew any such agreements beyond their existing service term unless and until

WorldCom has been presented with the opportunity to bid for the subject services

as contemplated herein and failed to be awarded the business. Subject to any

applicable non-disclosure obligations applicable to Nasdaq or the affected

entity, Nasdaq will provide WorldCom upon request with reasonable information

relating to any such pre-existing contractual obligation. The provisions of the

Section 18.9(b) do not survive the completion of performance or the

termination, rejection or expiration of this Agreement.”




 




9.                                      Regulatory

Responsibilities.  The Agreement is

amended in Section 27.4 by deleting the second sentence in its entirety and

inserting the following in lieu thereof:




 




“In the event a rule, regulation,

or final decision of a court or regulatory body having jurisdiction over

WorldCom has the effect of substantially prohibiting WorldCom from providing

WorldCom Services, WorldCom may terminate this Agreement upon written Notice to

Nasdaq without liability under the provisions of the Termination Section of this

Agreement, but subject to the provisions of Section 18.4 and 29.3.”




 




10.                               Tariff.  The Agreement is amended in

Section 28.2 by deleting the second sentence in its entirety and inserting the

following in lieu thereof:




 




“If WorldCom attempts to enforce against the Corporations or a

Subscriber the term of any tariff which is inconsistent with this Agreement

(including, but not limited to, terms affecting pricing or performance) and

adversely affects the Corporations or a Subscriber, their use of WorldCom

Service, or WorldCom’s performance of its obligations, or warranties or representations,

then Nasdaq can terminate this Agreement in accordance with Section 29.2,

including reasonable efforts acceptable to both parties to amend the applicable

tariff to make its terms consistent with this Agreement.”




 




11.          Term

and Termination.  The Agreement is

amended in Section 29.1 through 29.4 by deleting the existing provisions in

their entirety and inserting the following in lieu thereof:




 




“29.1   The initial term of this Agreement shall

commence on the Effective Date and expire on 

May 31, 2005, unless rejected, terminated or canceled earlier by either

party in accordance with the provisions hereof, including without limitation a

termination by Nasdaq pursuant to Section 8.3 above.




 




29.2.   Termination for Cause.  In the event Nasdaq or WorldCom

breaches a material obligation under this Agreement, the other party may

terminate the Agreement (a) upon 60 days Notice, or (b) upon less than 60 days

Notice if approved by a court of competent jurisdiction or if otherwise

consented to by the breaching party, or (c) immediately upon Notice to the

breaching party upon the occurrence of section (ii) or (v) of the fourth

sentence of this paragraph. The party receiving the Notice shall have 60 days

from the receipt of such Notice to cure the stated breach, except where this

Agreement expressly provides for an alternate cure period or such shorter

period as determined by a Court of competent jurisdiction.  If the party has not cured the breach within

the applicable cure period, the termination shall be automatically effective in

the case of termination under clause (c) above, and in the case of clauses (a)

or (b) above, effective upon a final Notice of termination being given to the

breaching party. The parties agree that each

of the following events, by way of example and not limitation, shall constitute

a material breach and cause for termination of Agreement “with cause:”  (i) Nasdaq’s failure to pay or to secure

payment of WorldCom charges in accordance with its rights and obligations under

Section 3.2; (ii) if either party becomes insolvent, makes an assignment for




 




6





























 




the benefit of

creditors, files a voluntary petition or has an involuntary petition filed or

action commenced against it under the United States Bankruptcy Code, or any

similar federal or state law, becomes the subject of any proceedings related to

its liquidation, insolvency or for the appointment of a receiver or similar

officer for it, makes an assignment for the benefit of all or substantially all

its creditors, or enters into an agreement for the composition, extension, or

readjustment of all or substantially all of its obligations; (iii) if WorldCom

breaches a material obligation under this Agreement or under any material

agreement with a third party that has an adverse affect on Nasdaq’s rights and

obligations under this Agreement (and fails to cure such breach in accordance

with the terms of such agreement) which is reasonably required in order for

WorldCom to meet its obligations hereunder; or (iv) if either party assigns

this Agreement in violation of the provisions of Section 32; or (v) WorldCom’s

failure to satisfy any of the “Critical Performance SLAs” set forth in

Attachment 7 hereto.  Additionally, if

WorldCom rejects this Agreement in accordance with Section 365 of the United

States Bankruptcy Code, as may be amended, or any similar federal or state law,

then Nasdaq may exercise the rights set forth in this Section 29.2 without

notice and terminate this Agreement without liability.”




 




29.3   Except

for a termination for Nasdaq’s breach of Section 3.2(iv), within 60 days of the

date of the termination (either for cause or as otherwise permitted in this

Agreement), or cancellation Notice of this Agreement, the parties shall agree

on a plan (the “De-installation Plan”), which shall include Regional

de-installation, and continuation of other obligations—including network

management—for a period of eighteen (18) months after the end of the last term,

and which shall take into account changes in the Specifications which may

reasonably be expected to be appropriate as the WorldCom Services are

discontinued pursuant to such plan.  If

the parties have not reached agreement on a De-installation Plan within this

60-day period, either party may initiate arbitration procedures.  Unless otherwise agreed by the parties, the

arbitrator(s) shall hear the matter and produce a De-installation Plan within

60 days of the arbitration. The provisions of this paragraph shall also apply

to and survive any rejection, termination or expiration of this Agreement by

WorldCom (or its successors or assigns) in a proceeding under any chapter of

the United States Bankruptcy Code or any other state or federal liquidation,

insolvency, receivership or financial restructuring proceeding.”




 




29.4   [Intentionally Omitted]”




 




12.          Survival.  The Agreement is amended in Section 37 by

deleting the existing provision in its entirety and inserting the following in

lieu thereof:




 




“Section

37.  Survival of Provisions.  The obligations of the Payment,

Confidentiality, Use of Nasdaq/WorldCom name and Marks, Indemnification,

Limitation of Liability, Arbitration sections of this Agreement, any

warranties, and any other provisions which by their nature or as otherwise set

forth in the Agreement are intended to survive shall survive the completion of

performance, expiration or any termination or rejection, of the Agreement,

including in a proceeding under any chapter of the United States Bankruptcy

Code or any other state or federal liquidation, insolvency, receivership or

financial restructuring proceeding.”




 




13.         

Revised Pricing.  Notwithstanding

any other provision herein, effective June 1, 2002, the Agreement is amended in

Attachment 3 by deleting such Attachment in its entirety and replacing it with

a new Attachment 3 in the form attached hereto and incorporated herein by this

reference.




 




14.          Acceptance

Test.  The Agreement is amended in

Attachment 6 by deleting the reference therein to “*****  Acceptance Test” and inserting “**** Acceptance Test” in lieu thereof.




 






















***** 

Confidential Treatment has been requested for the redacted

portions.  The confidential redacted

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




 




7





























 




15.          Critical

Performance SLAs.  The Agreement is

amended in Attachment 7 by adding the following to the end thereof:




 




“Critical Performance

SLAs




 




Upon the occurrence of any of the following events

(each of which is a “Critical Performance SLA”), Nasdaq may terminate the

Agreement for cause pursuant to Section 29.2(c) of the Agreement provided it

sends termination notice within *****

following Nasdaq’s receipt of WorldCom’s monthly Network SLA report (as

defined below):




 




(a)                                  Network Availability – If Network

Availability (with backup) fails to equal or exceed ****  during the PPM, measured on a calendar month basis,

for **** consecutive calendar months.  This is measured from the LAN at the Data Center to the Router

port at the Customer premise.




 




(b)                                 Chronic Availability Problems – If Network

Availability (with backup) fails to equal or exceed **** more than **** times in any rolling **** month period. This is

measured from the LAN at the Data Center to the Router port at the Customer

premise.




 




(c)           Catastrophic Outages - If, in any

**** month rolling period, there occurs **** or more Catastrophic Outages (as

defined below), one of which has a duration exceeding **** and the other of

which exceeds ****.  A “Catastrophic

Outage” for purposes of this provision is defined as any Network outage that

prevents broadcast, multicast and /or IP transmission such that **** or more of

the Service Configurations are out of service.




 




Measurement of WorldCom’s compliance with the Critical

Performance SLAs shall be in accordance with this Attachment 7 and the

Agreement, except as expressly modified in this subsection.  The Critical Performance SLAs do not limit

any performance credits for which Nasdaq would otherwise qualify under

Attachment 7.  None of the following events

shall be included in the determination of WorldCom’s compliance with any of the

Critical Performance SLAs:




 




(i)                                     Any

force majeure events as described in Section 44 of the Agreement (including

without limitation, to the extent caused by any acts or omissions on the part

of Nasdaq, its affiliates, or any of their third party contractors,

subcontractors or agents [other than WorldCom’s contractors, subcontractors, or

agents]; governmental regulation, national emergency, acts of terrorism).




 




(ii)                                  Scheduled

maintenance on the Network.




 




 




 






















***** 

Confidential Treatment has been requested for the redacted

portions.  The confidential redacted

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




 




8





























 




Monthly Network SLA

Report.




 




By the **** Business Day of each calendar month,

WorldCom will provide Nasdaq with a monthly report describing Network

performance during the preceding calendar month. WorldCom’s failure to deliver

such a report will not be deemed a breach of a material obligation by WorldCom

under the Agreement provided that WorldCom is otherwise in actual compliance

with the Network performance obligations under this Attachment 7.”




 




16.          Attachment

11.   The Agreement is amended by

deleting the existing Attachment 11 and Appendix F therein and inserting a new

Attachment 11 and Appendix F in the form attached hereto and incorporated by

reference.




 




17.          Attachment

13.   The Agreement is amended in

Attachment 13 as follows:




 




“(a)         deleting the reference to “*****  “ and inserting “****”in lieu thereof;




 




(b)           deleting

the reference to “****” and inserting “****”;




 




(c)           deleting

the reference to “****” and inserting “****” in lieu thereof;




 




(d)           deleting

the reference to “****” and inserting “****” in lieu thereof;




 




(e)           deleting

the reference to “****” and inserting “****” in lieu thereof; and




 




(f)            deleting

the reference to “****” and inserting “****” in lieu thereof.”




 




18.          SIAC Network Connections.  The

Agreement is amended by adding a new Attachment 14 in the form attached hereto

and incorporated herein by this reference.




 




19.          Network

Architecture Diagram.  The Agreement

is amended by adding a new Attachment 15 in

the form attached hereto and incorporated herein by this reference, which depicts

the architecture of the Network upon implementation of the Second Amendment to

the Agreement.




 




20.          Termination of Letter Agreement.  That certain letter agreement between the

parties dated January 25, 2002, regarding the upgrade of the EWN II Network is

hereby terminated and this Amendment is intended to embody the parties’

agreement with respect to the Upgrade Services described therein in order to

meet Nasdaq’s April 2002 user acceptance testing objective.




 




21.          Entire

Agreement.  Except as expressly modified

by this Amendment, the Agreement shall be and remain in full force and effect

in accordance with its terms and shall constitute the legal, valid, binding and

enforceable obligations of Nasdaq and WorldCom.  This Amendment, including the Agreement and the applicable

tariffs of WorldCom and its affiliates, is the complete agreement of the

parties and supersedes any prior agreements or representations, whether oral or

written, with respect thereto.




 






















*****  Confidential Treatment has been requested

for the redacted portions.  The

confidential redacted portions have been filed separately with the Securities

and Exchange Commission.




 




9





























 




22.          Successors

and Assigns.  This Amendment shall

be binding upon and inure to the benefit of the permitted successors and

permitted assigns of the parties hereto.




 




10





























 




23.          Acceptance

Deadline.  This Amendment, and the

offer set forth herein, shall be void and the offer described herein  withdrawn, if Nasdaq does not execute and deliver

the Amendment to WorldCom by no later than June 17, 2002.




 




IN WITNESS WHEREOF, WorldCom and Nasdaq have caused this Amendment to

be executed by their duly authorized representatives as of the dates set forth

below.




 




	

  The Nasdaq Stock Market, Inc.


  	

  MCI WORLDCOM Communications, Inc.


  
	

   


  	

   


  	

   


  	

   


  	

   


  
	

  By:

  


  	

  /s/


  	

   Steven Randich


  	

   


  	

  By:


  	

  /s/

  


  	

  John

  McGuire


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

  Name:

  


  	

  Steven

  Randich


  	

   


  	

   


  	

  Jon

  McGuire


  	

   


  
	

   


  	

   


  	

   


  	

  Senior

  Vice President


  
	

  Title:


  	

  EVP

  & CIO


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  
	

  Date:

  


  	

      6-17-02


  	

   


  	

   


  	

  Date:

  


  	

   6-27-02


  	

   


  
	

   


  	

   


  	

   


  	

   


  
												





 




11





























 




ATTACHMENT 3




 




PRICING AND SERVICES INTERVALS




 




I.                                         MONTHLY

RECURRING CHARGES.




 




A.  Definitions.  The following definitions shall apply for

purposes of this Attachment 3:




 




“Classic” refers to those Service

Configurations connected to an SDP that is located on the Subscriber’s

premises.




 




“Classic Dual T-1 Configuration” means *****.




 




“Classic Single T-1 Configuration” means ****.




 




“SDP” means ****.




 




“Service Configuration” means any of the following circuit and

equipment configurations that may be ordered by Subscribers to access the

Network:  Classic Dual T-1

Configuration, Shared Dual T-1 Configuration, Shared Dual DS0 Configuration,

Classic Single T-1 Configuration, Shared Single T-1 Configuration, Shared

Single T-1 with ISDN Configuration, Shared Single DS0 Configuration, Shared

Single DS0 with ISDN Configuration.




 




“Shared” refers to those Service

Configurations that are connected to an SDP that is not located at the

Subscriber’s premises but resides in the network and multiple Subscribers

communicate with the SDP to receive the Broadcast Feed data.




 




“Shared SDP Implementation Notice” means a

written notice that Nasdaq may deliver one time to WorldCom requesting

implementation of the “Variable Charges Applicable After Shared SDP

Implementation” rate table set forth in Section I. B. below.




 




“Shared Dual DS0 Configuration” means ****.




 




“Shared Single DS-0 Configuration” means ****.




 




“Shared Single DS-0 w/ ISDN Configuration”

means ****.




 




 






















***** 

Confidential Treatment has been requested for the redacted

portions.  The confidential redacted

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




 




12





























 




“Shared Dual T-1 Configuration” means two

T-1 access circuits, two WAN Interface Card, and associated Router/Hub Port hardware and cabling, all of which receives networks monitoring and

maintenance services hereunder and is connected to a Shared SDP.




 




“Shared Single T-1 Configuration” means

one T-1 access circuit, one WAN Interface Card, and associated Router/Hub Port hardware and cabling, all of which receives networks monitoring and

maintenance services hereunder and is connected to a Shared SDP.




 




“Shared Single T-1 with ISDN Configuration”

means one T-1 access circuit, WAN Interface Card, 4 port ISDN BRI, and

associated Router/Hub Port hardware and cabling, all of which receives network monitoring and maintenance services

hereunder and is connected to a Shared SDP.




 




B.  Charges.   WorldCom will bill Nasdaq for the Services

on a monthly basis. Subject to the provisions of section I.C. below, the

monthly recurring charge for the Services will be as specified in the table

below, depending upon the corresponding contract period. Beginning January 1,

2003, the fixed monthly charge will be subject to adjustment upwards each

monthly billing period by an amount equal to the aggregate sum of the product

of (a) the total number of configurations, calculated for each type of Service

Configuration, installed on the Network on the last day of the applicable

billing monthly period, multiplied by (b) the applicable “Variable Charge”

corresponding to such Service Configuration as specified in the applicable

table below.   The Table I Variable

Charges (Variable

Charges Applicable Prior to Shared SDP Implementation) shall apply

unless and until the implementation of the Table II Variable Charges (Variable

Charges Applicable After Shared SDP Implementation) following

WorldCom’s receipt of a Shared SDP Implementation Notice. Any adjusted monthly

charge derived through the above formula for any given monthly billing period

will not be carried forward to the subsequent monthly billing period;

calculation of any adjustment to the fixed monthly charge will be based off of

the applicable fixed monthly charge amount specified in the table below.




 




	

  Contract  Period


  	

   


  	

  Fixed

  Monthly Charge


  	

   


  	

  Variable

  Charges


  
	

   


  	

   


  	

   


  	

   


  	

   


  
	

  6/1/

  2002 – 12/ 31/2002


  	

   


  	

  See

  Formula Below*


  	

   


  	

  None

  Apply


  
	

   


  	

   


  	

   


  	

   


  	

   


  
	

  1/1/2003

  – 12/31/2003


  	

   


  	

  ****


  	

   


  	

  See

  Tables of Variable Charges below


  
	

   


  	

   


  	

   


  	

   


  	

   


  
	

  1/1/2004

  – 12/31/2004


  	

   


  	

  ****


  	

   


  	

  See

  Tables of Variable Charges below


  
	

   


  	

   


  	

   


  	

   


  	

   


  
	

  1/1/2005

  – 5/31/2005


  	

   


  	

  ****


  	

   


  	

  See

  Tables of Variable Charges below


  





 






















*  The fixed monthly charge for

this seven month period will be an amount equal to: *****.  The

parties will enter into an amendment to the Agreement to document this figure

once determined.




 




**Subject to upward adjustment based on the Variable Charges, pursuant

to the formula described in the above paragraph and the tables of Variable

Charges below.




 




13





























 




TABLES OF VARIABLE CHARGES




 




 




Table I.  Variable

Charges Applicable Prior to Shared SDP Implementation Date




 




	

  Service

  Configuration


  	

   


  	

  Monthly


  Variable Charge per Service Configuration


  
	

  Dual T-1 Service Configurations


  	

   


  	

  ****


  
	

  Single T-1 Service Configurations


  	

   


  	

  ****


  





 




Table II.  Variable

Charges Applicable After Shared SDP Implementation




 




	

  Service

  Configuration


  	

   


  	

  Monthly


  Variable Charge per Service Configuration


  
	

  Classic Dual T-1


  	

   


  	

  ****


  
	

  Classic Single T-1


  	

   


  	

  ****


  
	

  Shared Dual T-1


  	

   


  	

  ****


  
	

  Shared Dual DS0


  	

   


  	

  ****


  
	

  Shared Single T-1


  	

   


  	

  ****


  
	

  Shared Single T-1 w/ISDN


  	

   


  	

  ****


  
	

  Shared Single DS0


  	

   


  	

  ****


  
	

  Shared Single DSO w/ISDN


  	

   


  	

  ****


  





 




 




Notes to Tables:




 




(a)  The charges in Table II above will be effective

commencing on the first day of the second full monthly billing cycle after

WorldCom’s receipt of the Shared SDP Implementation Notice.




 






















***** 

Confidential Treatment has been requested for the redacted

portions.  The confidential redacted

portions have been filed separately with the Securities and Exchange

Commission.




 




14





























 




(b)  Commencing January 1, 2003, any Dual T-1 or

Single T-1 Service Configuration that is connected to more than 18 SDPs will be

charged by WorldCom as   separate

Service Configurations, pending installation of a physically separate Service

Configuration.  The number of separate

Service Configurations that will be charged will be: the total number of

connected SDPs on the configuration, divided by 18 and rounded to the next

highest whole number  (e.g,

37 SDPs divided by 18 = 2.055 rounded up to 3 Service Configurations).




 




(c)  Only Subscriber sites with 3 or fewer

presentation devices (PDs) and no non-display application programming interfaces

(APIs) are eligible for conversion to a Shared SDP Service Configuration.




 




(d)  If WorldCom installs a Service Configuration

and, due to delay of  Subscriber (e.g.,

failure to extend its demarc) continuing for 30 days after such installation,

WorldCom is prevented  from placing the

Service Configuration in operation, WorldCom may begin billing Nasdaq as if the

Service Configuration were operating.




 




C.            Bandwidth Parameter.  The pricing in Section I.B. above is valid

for broadcast circuits (i.e., the primary and secondary circuits carrying

outgoing broadcast feeds from Nasdaq’s data centers) with bandwidth of up to ***** each; WorldCom will

increase such bandwidth as necessary to meet Nasdaq’s requirements under

Attachment 11 – Appendix F.  The **** capacity referenced above is

predicated on Nasdaq’s completion of Broadcast Reduction Phase 2 (i.e.,

increasing the maximum number of SDPs per T1 pair from the current 6 up to 18

SDPs). Should Nasdaq require more than ****

in bandwidth per primary and secondary circuit, the parties will negotiate

promptly in good faith reasonable adjustments to the above pricing.   Out of each of the **** bandwidths described above, up to 176 kbps (i.e., 8 kbps per SDP times 22 SDPs)

per Subscriber T-1 pair is available for query/response (“Q/R”) traffic (i.e.,

traffic in the form of queries originating from Subscriber workstations and

terminating at Nasdaq data centers, and the responses thereto) provided that the Q/R traffic for any SDP does

not exceed 8 kbps per SDP.




 




D.            ****   Connection.  In addition to the charges in Section I.B

above, WorldCom will bill Nasdaq for the ****

Network connection described in Attachment 14 at **** per month commencing from March 22, 2002.  The standard non-recurring provisioning

charges described in Section II below shall apply to **** connections.




 






















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

portions.  The confidential redacted

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




 




15





























 




[Intentionally Left Blank]




 




 




16





























 




II.    STANDARD

PROVISIONING PRICING.




 




	

   


  	

   


  	

  Interval


  	

   


  	

  FOC


  	

   


  	

  Non-Recurring

  Charge


  
	

  Installation


  	

   


  	

  *****


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

  Move (Internal

  Move)


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

  Relocation

  (External Move)


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

  Disconnect


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

  Hardware Removal

  as part of Disconnect


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

  Change Order


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  





 




NOTES: Each provisioning

interval shall begin upon WorldCom receipt of a complete and accurate order

from Nasdaq. Longer time periods for any activity may be agreed upon on an

individual case basis by the parties.




 




WorldCom may invoice

Nasdaq for any installation non-recurring charge no earlier than five (5) days

following installation of the local access circuit.




 




Nasdaq agrees to use its

reasonable efforts to assist WorldCom in the recovery of WorldCom equipment

from a Subscriber’s premises in the event the Subscriber disconnects service in

connection with its discontinuance of operations.




 




 




*This figure is a monthly

average, and is calculated exclusive of delays caused by Subscriber (e.g.,

failure to extend demarc).




 




**WorldCom and Nasdaq

will coordinate the removal of Components within a three-day period.




 




 




Additional Charges:




 




Nasdaq shall be charged

**** for each Expedite, if the Expedite is requested within the period

specified for any Interval.




 






















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

portions.  The confidential redacted

portions have been filed separately with the Securities and Exchange

Commission.




 




17





























 




Definitions:




 




FOC – Firm Order

Commitment – the maximum number of WorldCom Days from the date WorldCom

receives Nasdaq’s order for the Service until WorldCom notifies Nasdaq of its

firm commitment to all dates involving Subscriber or Corporation premises

visits.




 




ICB – To be determined on

an individual case basis.




 




Interval – The number of

WorldCom Days from the date WorldCom receives the order from Nasdaq within

which the service will be completed.




 




18





























 




ATTACHMENT 11




 




Appendix F




 




 




[See following pages]




 




 




19





























 




APPENDIX

F




 




 




*****




 




 






















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

portions.  The confidential redacted

portions have been filed separately with the Securities and Exchange

Commission.




 




20





























 




ATTACHMENT 14




 




*****




 




 




****




 




 






















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

portions.  The confidential redacted

portions have been filed separately with the Securities and Exchange

Commission.




 




21





























 




ATTACHMENT 15




 




Network Diagram




 




(as of implementation of 2nd Amendment to

Agreement)




 




 




*****




 




 






















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

portions.  The confidential redacted

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




 




22