Exhibit

10.3




 




TECHNOLOGY TRANSITION

AGREEMENT




 




THIS AGREEMENT

(the “Agreement”), dated as of the 6th day of February, 2002 (the “Agreement

Date”), is entered into by and among (i) The Nasdaq Stock Market, Inc.

(“Nasdaq”) a Delaware corporation, (ii) the National Association of Securities

Dealers, Inc., (“NASD”), a Delaware corporation, and (iii) The American Stock

Exchange LLC (“Amex”), a Delaware limited liability company (Nasdaq, Amex and

NASD are collectively referred to herein as the “Parties”). This Agreement

constitutes Exhibit C to the Master Agreement of the same date among the

National Association of Securities Dealers, Inc., The Nasdaq Stock Market,

Inc., the American Stock Exchange, Inc., Nasdaq Financial Products Services,

Inc. and the American Stock Exchange, LLC (the “Master Agreement”).  Unless otherwise defined herein, all

capitalized terms used herein shall have the meanings set forth in Article 1 of

the Master Agreement and Section 15 of this Agreement.




 




WHEREAS, in 1998,

pursuant to the Transaction Documents, among other things, (i) Amex acquired

substantially all the assets of and assumed the 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;




 




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 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 Nasdaq is no longer a wholly-owned Subsidiary of the NASD;




 




WHEREAS, NASD,

Nasdaq and Amex now intend to provide for certain transfers of technology and

enter into business arrangements; and




 




WHEREAS, the

Parties wish to govern their ongoing relationships as of the Effective Date and

the Agreement Date by the terms of this Agreement;




 




NOW, THEREFORE, for good and valuable consideration, the receipt and

sufficiency of which are hereby acknowledged, the Parties intend to be legally bound

and hereby agree as follows:




 




SECTION

1.                PROJECT SCOPE - OVERVIEW




 




1.1           Nasdaq

Technology.  Nasdaq shall

provide software, hardware, data, information, and/or services as set forth

herein (the “Nasdaq Technology”) to Amex (collectively, the “Transition”).




 





























 




a.  MDS SYSTEM. 

Nasdaq shall provide Amex with services, as set forth

herein, related to Nasdaq’s MDS System, and permit Amex to have access to the

MDS System data and MDS System code, as set forth herein.




 




i.              MDS SYSTEM DATA.  From the Agreement Date until the Critical

Milestone Date for the MDS System, Nasdaq shall continue, as it has prior to

the Agreement Date, to operate the MDS System so that Nasdaq makes available to

Amex the Amex data that Nasdaq receives on behalf of Amex from the Securities

Industry Automation Corporation (“SIAC”) into the MDS System (“Amex MDS Data”)

and Nasdaq hereby assigns to Amex all right, title and interest in and to the

Amex MDS Data.  As part of the

Transition, the Parties shall agree to a plan that permits the transfer, by the

Critical Milestone Date for the MDS System, to Amex of the Amex MDS Data

received by Nasdaq prior to the Agreement Date.  Neither Nasdaq nor Amex shall have any rights in the other’s data

from the MDS System and Nasdaq shall delete the Amex MDS Data from the MDS

System after the Critical Milestone Date for the MDS System.  Except as otherwise set forth herein, after

the Critical Milestone Date for the MDS System, Amex shall commence the

operation of its own database not on Nasdaq’s premises as a substitute for the

MDS System and Nasdaq shall have no further obligation to provide Amex MDS Data

to Amex from the MDS System.




 




ii.            REGULATORY ENHANCEMENTS.




 




General.  From the Agreement Date to the Critical

Milestone Date for the MDS System, Amex may request that Nasdaq develop

modifications or enhancements to the MDS System that provides the Amex MDS Data

that Amex needs for the regulation of the Amex market (“MDS

Enhancements”).  Nasdaq will provide

Amex with a reasonable estimated schedule for the implementation of the MDS

Enhancements.  If Amex accepts the

schedule, Nasdaq shall develop such MDS Enhancements. Nasdaq will have no

obligation to provide to Amex modifications or enhancements that Amex does not

need for the regulation of the Amex market. Disputes regarding whether a

proposed enhancement is needed for the regulation of the Amex market shall be

resolved as specified in Section 12.




 




Cost.  If Nasdaq chooses to implement an MDS

Enhancement on behalf of both itself and Amex, Amex shall pay Nasdaq Amex’s

Share (as defined below) of the Fully-Loaded Cost associated with the MDS

Enhancement.  If the MDS Enhancement is

only to be implemented on behalf of Amex, Amex shall pay Nasdaq for the entire

Fully-Loaded Cost associated with the MDS Enhancement. Costs for the creation

of an MDS Enhancement shall be paid by Amex as Non-Fund Costs under Section 7.2.




 




Amortization.  To the extent that Nasdaq can and does

amortize (as determined in Nasdaq’s sole discretion) the Fully-Loaded Cost

related to an MDS Enhancement developed on behalf of both itself and Amex (and

Nasdaq shall have no obligation to do so), Nasdaq shall charge Amex the

amortized amount of the Fully Loaded Cost. 

If the amortization period is longer than the period for which Nasdaq is

providing the Amex MDS Data, then upon the termination of the provision by

Nasdaq of the Amex MDS Data, Amex shall pay the portion of the Fully-Loaded

Cost not yet paid by Amex.




 




2





























 




License.  Nasdaq hereby grants Amex an irrevocable,

non-exclusive, worldwide, perpetual, royalty-free license, with the right to

sublicense, to use and to make Derivative Works based upon, the MDS

Enhancements. Amex shall own the modifications, improvements, enhancements and

Derivative Works that it creates based on the MDS Enhancements.




 




iii.           MDS SOFTWARE, DOCUMENTATION AND

ASSISTANCE. As part of the Transition, Nasdaq hereby grants

Amex an irrevocable, non-exclusive, worldwide, perpetual, royalty-free license,

with the right to sublicense, to use and to make Derivative Works based upon

the Software (including source code) for the MDS System used to provide the

Amex MDS Data (the “MDS Software”). 

Amex shall own the modifications, improvements, enhancements and

Derivative Works that it creates based upon the MDS Software.




 




iv.            DEFINITION OF SHARE.

For MDS, Amex’s “Share” is equal to the percentage of Amex MDS Data’s daily

load in the MDS System in relation to the entire daily load of data in the MDS

System, except for matters involving costs for storage, in which case Amex’s

“Share” is the percentage of Amex MDS Data stored in the MDS System with

respect to all data stored in the MDS System.




 




b.  ISS/WISSDM. 

Nasdaq shall provide Amex with services, as set forth

herein, related to Nasdaq’s ISS/WISSDM System and permit Amex to have access to

the ISS/WISSDM System and the ISS/WISSDM data, as set forth herein.




 




i.              ISS/WISSDM DATA.  From the Agreement Date until the Critical

Milestone Date for ISS/WISSDM, Nasdaq shall continue, as it has prior to the

Agreement Date, to operate the ISS/WISSDM System so that Nasdaq makes available

to Amex the data that Nasdaq receives on behalf of Amex into the ISS/WISSDM

System (“Amex ISS/WISSDM Data”) and Nasdaq hereby assigns to Amex all right,

title and interest in and to the Amex ISS/WISSDM Data  (including third party vendor feed data, if permitted by Nasdaq’s

agreement with the vendor). As part of the Transition, the Parties shall agree

to a plan that permits the transfer to Amex of the Amex ISS/WISSDM Data

received by Nasdaq prior to the date that Nasdaq splits the ISS/WISSDM data

feed (including third party vendor feed data, if permitted by Nasdaq’s

agreement with the vendor and, if not permitted, the parties shall take

reasonable steps to obtain the vendor’s permission).  Neither Nasdaq nor Amex shall have any rights in the other’s data

from the ISS/WISSDM System.  Except as

otherwise set forth herein, after the Critical Milestone Date for the

ISS/WISSDM System, Amex shall commence the operation of its own database not on

Nasdaq’s premises as a substitute for the ISS/WISSDM System (“Amex Replacement

System”) and Nasdaq shall have no further obligation to provide Amex ISS/WISSDM

Data to Amex from the ISS/WISSDM System.




 




ii.            Nasdaq will

provide Amex with the Amex ISS/WISSDM Data at a rate equal to Amex’s Share (as

defined below) of the Fully Loaded Cost of the ISS/WISSDM System. In addition,

from the first anniversary of the “T” date (as that term




 




3





























 




is

defined in Section 3.2), Amex shall pay a mark-up of *****  on the direct cost

component of the Share of the Fully-Loaded Cost of the ISS/WISSDM System. The

cost for ISS/WISSDM is a Non-Fund Cost as provided in Section 7.2.




 




iii.           REGULATORY ENHANCEMENTS.




 




General.  From the Agreement Date to the Critical

Milestone Date for ISS/WISSDM, Amex may request that Nasdaq develop

modifications or enhancements that Amex needs 

for the regulation of the Amex market (“ISS/WISSDM Enhancements”) to the

ISS/WISSDM System.  Nasdaq will provide

Amex with a reasonable estimated schedule for the implementation of the

ISS/WISSDM Enhancements.  If Amex

accepts the schedule, Nasdaq shall develop such ISS/WISSDM Enhancements. Nasdaq

will have no obligation to provide to Amex modifications or enhancements that

Amex does not need for the regulation of the Amex market. Disputes regarding

whether a proposed enhancement is needed for the regulation of the Amex market

shall be resolved as specified in Section 12.




 




Cost.  If Nasdaq chooses to implement an ISS/WISSDM

Enhancement on behalf of both itself and Amex, Amex shall pay Nasdaq Amex’s

Share of the Fully-Loaded Cost associated with the ISS/WISSDM Enhancement plus

the mark-up in effect at the time the ISS/WISSDM Enhancement is created. If the

ISS/WISSDM Enhancement is only to be implemented on behalf of Amex, Amex shall

pay Nasdaq for all of the Fully-Loaded Cost associated with the ISS/WISSDM

Enhancement plus the mark-up in effect at the time the ISS/WISSDM Enhancement

is created. Costs for the creation of an ISS/WISSDM Enhancement shall be paid

by Amex as Non-Fund Costs under Section 7.2.




 




Amortization.  To the extent that Nasdaq can and does

amortize (as determined in Nasdaq’s sole discretion) the Fully-Loaded Costs

related to an ISS/WISSDM Enhancement developed on behalf of both itself and

Amex (and Nasdaq shall have no obligation to do so), Nasdaq shall charge Amex

the amortized amount of the Fully Loaded Costs.  If the amortization period is longer than the period for which

Nasdaq is providing the ISS/WISSDM System, then upon the termination of the

provision by Nasdaq of the ISS/WISSDM System, Amex shall pay the Fully-Loaded

Costs not yet paid by Amex.




 




iv.            AMEX REPLACEMENT SYSTEM.




 




Safe Harbor.  In order to allow Amex to

determine the functionality for the Amex-developed  system that will replace Nasdaq’s ISS/WISSDM System, Amex shall

be entitled to examine the user manual (already provided) to the web version of

the ISS/WISSDM System and the ISS/WISSDM application, as observed by an end

user at a personal computer accessing the ISS/WISSDM System, to determine the

necessary functionality for the Amex Replacement System.  Amex is not entitled to any further




 






















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

portions.  The confidential redacted

portions have been filed separately with the Securities and Exchange

Commission.




 




4





























 




documentation or access to the ISS/WISSDM System or any other Nasdaq

system in order to determine requirements or design for the Amex Replacement

System.  In addition, Amex may not use,

directly or indirectly, any of the current and former Nasdaq employees and

independent consultants listed on Exhibit A to design or develop the Amex

Replacement System. The foregoing requirements shall be referred to herein as

the “Safe Harbor Guidelines.”




 




Effect of Complying with the Safe

Harbor.  If Amex

abides by the Safe Harbor Guidelines, Nasdaq will not sue Amex for infringement

of Nasdaq’s copyrights in and to Nasdaq’s ISS/WISSDM System or its

documentation or misappropriation of trade secrets contained in Nasdaq’s

ISS/WISSDM System or its documentation arising out of the development or use of

the Amex Replacement System. In addition, if Amex abides by the Safe Harbor

Guidelines, Nasdaq will not sue Amex for patent infringement arising out of the

development of the Amex Replacement System or Amex’s internal use of the Amex

Replacement System (i.e., use only on behalf of Amex and its

Affiliates). This agreement not to sue will continue even if Amex undergoes a

Change of Control so long as Amex complies with the Safe Harbor

Guidelines.  However, this agreement not

to sue will not apply if Amex develops the Amex Replacement System in violation

of the Safe Harbor Guidelines.




 




Investigation.  Nasdaq reserves the right, but without

obligation, to request that the Special Technology Consultant or independent

third party reasonably acceptable to Amex perform an independent assessment of

the development of the Amex Replacement System in order to determine whether it

was developed in conformance with the Safe Harbor Guidelines and Amex shall,

upon Nasdaq’s reasonable request, provide the auditor reasonable access to the

Amex Replacement System and related documentation.  Nasdaq shall not be bound by such independent assessment. Nasdaq

shall bear all costs of the assessment unless the assessment reveals that Amex

has failed to comply with the Safe Harbor Guidelines, in which case Amex shall

bear all costs of the assessment.




 




v.             Once the Amex

Replacement System is operational, Nasdaq will no longer be obligated to

provide Amex with the Amex ISS/WISSDM Data.




 




vi.            DEFINITION OF SHARE.

For ISS/WISSDM, Amex’s “share” is equal to the percentage of Amex issues in the

ISS/WISSDM System in relation to the total number of issues in the ISS/WISSDM

System for which it performs deficiency processing.




 




c.  NASDAQ  SIEBEL

SYSTEM.  Nasdaq shall provide

Amex with services, as set forth herein, related to the Nasdaq Siebel System

and permit Amex to have certain access to the Nasdaq Siebel System and data in

the Nasdaq Siebel System.




 




i.              NASDAQ SIEBEL SYSTEM DATA.  From the date that Nasdaq splits the Nasdaq

Siebel System, until the Critical Milestone Date for the Nasdaq Siebel System,

Nasdaq shall continue to make available to Amex the data that Nasdaq receives

from Amex as a result of Amex representatives inputting the information about

Amex issuers into the Nasdaq Siebel System (“Amex Siebel Data”) and Nasdaq

hereby




 




5





























 




assigns

all right, title and interest in and to the Amex Siebel Data to Amex.  As part of the Transition of the Nasdaq

Siebel System, the Parties shall agree to a plan that permits the transfer to

Amex of the Amex Siebel Data received by Nasdaq prior to the date that Nasdaq

splits the Nasdaq Siebel System data feed. 

Neither Nasdaq nor Amex shall have any rights in the other’s data from

the Nasdaq Siebel System. Amex shall pay Nasdaq Amex’s Share (as defined below)

of the Fully Loaded Cost of the Nasdaq Siebel System. The costs for the Nasdaq

Siebel System are Non-Fund Costs as provided in Section 7.2




 




ii.            SIEBEL SOFTWARE, DOCUMENTATION AND

ASSISTANCE.  From the

Agreement Date to the Critical Milestone Date for the Nasdaq Siebel System, Nasdaq

shall provide Amex reasonable assistance and training, as set forth in this

Agreement, to allow Amex to prepare for the installation, operation, and

maintenance of a copy of the Siebel System, including the Nasdaq-developed  “many to many” and “power query” functions

(“Nasdaq-Developed Functions”) not on Nasdaq’s premises. Upon delivery of the

Nasdaq-Developed Functions Software and Documentation  to Amex, Nasdaq hereby grants to Amex, a perpetual,

non-exclusive, non-transferable, non-sublicensable, royalty-free personal right

and license to use, copy as needed, modify and create Derivative Works based

upon, the Nasdaq-Developed Functions and related Documentation owned by Nasdaq

and provided by Nasdaq for the sole purpose of Amex installing, operating, and

maintaining Amex’s copy of the Nasdaq-Developed Functions for its own internal

use with the Amex system that will replace the Nasdaq Siebel System.  Amex will not be entitled to any other

functionality, improvement, enhancement, or modification made by or for Nasdaq

to the Nasdaq Siebel System after delivery to Amex.  Amex shall own the modifications, improvements and enhancements

that it creates to the extent that such modifications, improvements and

enhancements do not copy, duplicate, reveal or otherwise incorporate Nasdaq’s

Intellectual Property or Confidential Information. Nasdaq shall own (and be

provided a copy of) the modifications, improvements and enhancements that Amex

creates to the extent that such modifications, improvements and enhancements do

copy, duplicate, reveal or otherwise incorporate Nasdaq’s Intellectual Property

or Confidential Information and the Derivative Works that Amex creates.  To the extent such modifications,

improvements and enhancements do copy, duplicate, reveal or otherwise

incorporate Nasdaq’s Intellectual Property or Confidential Information or to

the extent Amex creates a Derivative Work, Nasdaq hereby grants to Amex a

non-exclusive, non-transferable, non-sublicensable, royalty-free personal right

and license to use such modifications, improvements and enhancements or

Derivative Work for the sole purpose of Amex installing, operating, and

maintaining the Nasdaq-Developed Functions for Amex’s own internal use. Amex

represents that it has obtained its own license from Siebel Systems, Inc. in

order to operate Amex’s replacement for the Nasdaq Siebel System.




 




iii.           DEFINITION OF SHARE.

For the Siebel System, Amex’s “Share” is equal to the percentage of Amex issues

in the Nasdaq Siebel System in relation to the total number of issues in the

Nasdaq Siebel System.




 




d.  AMEX.COM; AMERICANSTOCKS.COM.  Nasdaq shall provide Amex with certain

access and services related to the web sites amex.com and americanstocks.com

(collectively, “amex.com”).




 




6





























 




i.              AMEX.COM; AMERICANSTOCKS.COM

MAINTENANCE. 

Commencing with the Agreement Date and until the Critical Milestone Date

for amex.com, Nasdaq will continue to host said amex.com and will provide

certain maintenance services for amex.com. 

The maintenance services shall be as set forth in an attachment, to be

agreed to by the parties, to the Transition Plan.  On the Critical Milestone Date for amex.com, Nasdaq will cease

hosting amex.com and cease providing the previously agreed to maintenance services.




 




ii.            AMEX.COM; AMERICANSTOCKS.COM CODE.  Amex currently possesses code for amex.com

and americanstocks.com which Nasdaq provided for Amex review in anticipation of

the Transition (“Amex.com Code”).  Amex

had expressed a desire to incorporate part of the said code into a new

successor site to amex.com and americanstocks.com. Subject to Section 6.2,

Nasdaq hereby grants Amex an irrevocable, non-exclusive, worldwide, perpetual,

royalty-free license, with the right to sublicense, to use, and create Derivative

Works based upon the Amex.com Code (except for the Nasdaq logo ticker) and

related Documentation. Subject to Section 6.2, Amex shall own the

modification, improvements, enhancements and Derivative Works that it creates

based on the Amex.com Code (except for the Nasdaq logo ticker).




 




e.  AMEXTRADER.COM.




 




i.              GENERAL. Nasdaq

has provided Amex reasonable assistance and training, as set forth in this

Agreement, to allow Amex to prepare for the installation, operation, and

maintenance of a copy of the web site Amextrader.com on Amex’s premises.  Nasdaq hereby grants to Amex a

non-exclusive, non-transferable, non-sublicensable, personal right and license

to use, copy as needed, modify the Amextrader.com code, and related

Documentation provided by Nasdaq for the sole purpose of Amex installing,

operating, and maintaining Amex’s copy of Amextrader.com.  Amex will not be entitled to any version

other than the Amextrader.com code delivered to Amex, nor to any other functionality,

enhancement, or modification made by or for Nasdaq to Amextrader.com or

Nasdaqtrader.com, upon which amextrader.com is based, after delivery to

Amex.  Amex shall own the modifications,

improvements and enhancements that it creates to the extent that such

modifications, improvements and enhancements do not copy, duplicate, reveal or

otherwise incorporate Nasdaq’s Intellectual Property or Confidential

Information. Nasdaq shall own (and be provided a copy of) the modifications,

improvements and enhancements that Amex creates to the extent that such

modifications, improvements and enhancements do copy, duplicate, reveal or

otherwise incorporate Nasdaq’s Intellectual Property or Confidential

Information and the Derivative Works that Amex creates.  To the extent such modifications,

improvements and enhancements do copy, duplicate, reveal or otherwise

incorporate Nasdaq’s Intellectual Property or Confidential Information or Amex

creates a Derivative Work, Nasdaq hereby grants to Amex a non-exclusive,

non-transferable, non-sublicensable, personal right and license to use such

modifications, improvements and enhancements or Derivative Work for the sole

purpose of Amex installing, operating, and maintaining Amex’s copy of the web

site Amextrader.com for Amex’s own internal use.




 




7





























 




ii.            ETF TRADER CODE. Subject

to

Section 6.2, but notwithstanding anything otherwise set forth

herein, Nasdaq hereby grants to Amex an irrevocable, non-exclusive, worldwide,

perpetual, royalty-free license, with the right to sublicense, to use, copy as

needed, modify and create Derivative Works based upon the code and related

documentation for the exchange traded funds section of Amextrader.com that it

possesses as of the Agreement Date (“ETF Trader Code”). Subject to Section 6.2,

Amex shall own the modifications, improvements, enhancements and Derivative

Works that it creates based on the ETF Trader Code.




 




iii.           CHANGE OF LOOK AND FEEL. No

later than ninety (90) days after the Critical Milestone Date for amex.com,

Amex shall alter the “look and feel” of the Amextrader.com site so that the

site does not resemble the Nasdaqtrader.com site. Upon such alteration, but

subject to Section 6.2, (i) Nasdaq hereby grants to Amex an irrevocable,

non-exclusive, worldwide, perpetual, royalty-free license, with the right to

sublicense, to use, copy as needed, modify and create Derivative Works based

upon the Amextrader.com code and related documentation; and (ii) Amex shall own

the modifications, enhancements and Derivative Works that it creates based on

the Amextrader.com code.




 




f.  NASDAQ LOGO TICKER.  As part of maintaining amex.com, Nasdaq will

maintain the version of the Nasdaq logo ticker (including the logos) that is

currently on amex.com until its maintenance obligations end.  Amex agrees that should an issuer object to

the placement of its logo on amex.com, Nasdaq shall request that the issuer

submit to Nasdaq a written objection and such written objection shall be

submitted to the Special Technology Consultant.  Nasdaq may remove that issuer’s logo from the Nasdaq logo ticker

on amex.com five (5) days after the submission to the Special Technology

Consultant. Amex will not be entitled to any version of the Nasdaq logo ticker

other than the version that is currently on Amex.com, nor to any other

functionality, enhancement, or modification made by or for Nasdaq to the Nasdaq

logo ticker and Amex has no ownership interest in the Nasdaq logo ticker.




 




g.  LISTING INVESTIGATION SERVICES.  Nasdaq shall provide to

Amex certain Listing Investigation Services as agreed to by the parties, that

shall terminate 18-24 months after the “T” date as defined in Section 3.2.  Amex shall provide notice to Nasdaq as to a

definite Critical Milestone Date for Listing Investigation Services no later

than twelve (12) months after the

“T” date.




 




h.  NASDAQ-AMEX DOMAIN NAME.

The ownership of “nasdaq-amex.com” shall be transferred to NASD. NASD shall

maintain that registration in perpetuity, and NASD will ensure that

“nasdaq-amex.com” will not be used as a URL by any individual or entity.




 




i.  MARKET OPERATIONS SERVICES.  Until the Critical Milestone Date for Market

Operations Services,  Nasdaq shall continue to provide Amex with

services from Nasdaq’s Market Operations Department (“Market Operations

Services”) as agreed to by the Parties.




 




8





























 




j.  AMEXONLINE. From the

Agreement Date to the Critical Milestone Date for AmexOnline, Nasdaq will

continue to provide AmexOnline and AmexOnline support as it was implemented on

12/31/01 at a rate equal to $*****

for the 2002 calendar year. To the extent that Nasdaq is contractually

bound to pay I/B/E/S-Thomson Financial for the date feed to AmexOnline after

the Critical Milestone Date through 2003, Nasdaq and Amex agree to use their best

efforts in negotiations with Thomson Financial for the right to stop payment at

the Critical Milestone Date. If, despite Nasdaq’s and Amex’s best efforts,

Nasdaq is still obligated to pay some or all of the $**** that Nasdaq has previously committed for the Amex portion

of the I/B/E/S-Thomson data feed in 2003, Amex will reimburse Nasdaq for the

remaining portion of the Amex-related commitment that remains up to $****.  The

cost for AmexOnline is a Non-Fund Cost as provided in Section 7.2




 




k.  ECONOMIC RESEARCH

DATABASES. Until the Critical Milestone Dates for the

Economic Research Databases, Nasdaq shall continue to provide to Amex certain

data from Nasdaq economic research databases as it has prior to the Agreement

Date and as further described herein. Nasdaq shall provide summary data on all

markets from the Daily, Monthly, Yearly and NProf data files for so long as

Amex MDS Data is provided. Nasdaq shall provide data from the Delist and

Liquidity databases until the Critical Milestone Dates for those databases.

Amex acknowledges that the Delist and Liquidity databases will not be updated

in any manner by Nasdaq. Nasdaq shall provide data from the Short Interest

database until the Critical Milestone Date for that database. Nasdaq shall

continue to provide Amex certain data in the DataMart and CommFin databases as

it has prior to the Agreement Date; however, Nasdaq reserves the right to

remove only those data elements that are based on underlying data or raw data

that is both confidential and proprietary to Nasdaq. The reports provided by

Nasdaq under this Section and all Intellectual Property in and to the same

shall remain owned by Nasdaq, provided that Nasdaq hereby assigns to Amex all

right, title and interest in and to the data provided from the Amex CommFin

database. Nasdaq hereby grants to Amex a non-exclusive, non-transferable,

non-sublicensable, personal right and license to reproduce, modify and use for

internal purposes only (which may include use in connection with marketing),

the data and reports provided under this Section. Nasdaq shall provide this

data through the Critical Milestone Dates for the Economic Research Databases

for $****. 

The cost for data from Economic Research Databases is a Non-Fund

Cost as provided in Section 7.2.




 




1.2           Purpose

of the Agreement.  The

Parties shall work in good faith to implement the Transition.  The Parties agree that the Transition

requires efforts on the part of all of the Parties.  This Agreement contains a framework for the allocation of the

responsibilities and schedules for completing the Transition.




 






















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

portions.  The confidential redacted

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




 




9





























 




1.3           The

Parties’ Responsibilities. Each Party shall perform such tasks

as assigned to it in the Transition Plan or as agreed to by the Parties to

implement and complete the Transition. The Parties shall give their top priority

to the Transition.




 




1.4           Omitted

Technology.  In the event

that the description of Nasdaq Technology is incomplete in that there is

software, data, information, and/or services that Nasdaq has provided prior to

the Agreement Date or is providing to Amex, as of the Agreement Date, or

software, data, information, and/or services that Amex provided prior to the

Agreement Date or is providing to Nasdaq as of the Agreement Date that was

inadvertently omitted from the Nasdaq Technology, the Parties shall meet as

soon as possible to discuss the terms of the transition of that omitted

technology with the intention that such terms will be similar to those

governing, as set forth herein, that part of the Nasdaq Technology that is

similar to the omitted technology, as an aid to transitioning the omitted

technology.  Any disagreements between

the Parties as to the omitted technology will be raised as a Dispute under the

Master Agreement




 




1.5           Allocation

of Responsibilities as to Third Party Data, Information, Software and

Technology for Amex.com. 

Amex acknowledges that third party data, information, software and

technology are part of Amex.com.  Amex

has undertaken to obtain separate agreements with all vendors of such data,

information, software and technology to the extent it will continue to be

received by Amex. As of the Agreement Date, Amex has entered into agreements

with all third party data vendors that it knows are providing data for Amex.com

except for Bridge Information Systems (“Bridge”). Amex has reached conceptual

agreement with Bridge regarding data for Amex.com, but has not executed a

definitive agreement with Bridge regarding 

that data. Amex shall work diligently to execute a definitive agreement

with Bridge consistent with the conceptual agreement between Amex and Bridge.

If Amex is unable to reach conceptual agreement with Bridge consistent with the

conceptual agreement, the Special Technology Consultant shall dictate the

parties’ obligations with respect to Bridge data. Nasdaq shall provide Amex with

reasonable assistance in Amex’s efforts to enter into a separate agreement with

Bridge. To the extent StockPoint has charged Amex more than $*****  for 2001, Nasdaq and Amex

shall share the excess equally, but offset by any savings Amex realizes on its

contracts with Bridge and Financial Insight Systems/EDGAR Online over its

amount previously budgeted for 2001. To the extent Nasdaq bears any liability

to third party providers for Amex.com with respect to use of their data,

information, software or technology by Amex after Amex assumed responsibility

for their data, information, software or technology, Amex shall indemnify and

hold Nasdaq harmless for one half of any such liability.




 




1.6           Change of

Nasdaq Platform.  If

Nasdaq intends on its own initiative to change any system used to provide

Nasdaq Technology (including, but not limited to, changing the platform on

which such system runs), it shall give notice to Amex as early as reasonably

practical and give Amex the option to have the Nasdaq Technology




 






















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

portions.  The confidential redacted

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




 




10





























 




provided

from the changed system. Amex may elect to have the Nasdaq Technology continue

to be provided from the unchanged system, provided that Amex acknowledges that

the costs of providing that technology may increase as Nasdaq may have reduced

economies of scale.




 




SECTION

2.                STEERING COMMITTEE




 




2.1           Steering

Committee; TSC Co-Chairs.  The

Parties shall jointly establish a steering committee (the “Technology Steering

Committee”) to supervise the performance of the Parties pursuant to this

Agreement and to address legal, technical, operational, and regulatory issues

that arise out of the operation of the Transition, and each Party has or shall

appoint a Technology Steering Committee Co-chair (the “TSC Co-Chairs”) that

will be the primary contact between the Parties hereto and who will have the

authority to bind the Party.  The TSC

Co-Chairs are *****

(Amex), ****  (Nasdaq), and **** (NASD).  All

decisions of the TSC Co-Chairs shall be unanimous.  The Technology Steering Committee shall be comprised of members

from the Nasdaq, NASD and Amex Families 

as may be agreed to by the TSC Co-Chairs and set forth in the Transition

Plan.  Each TSC Co-Chair may appoint a

designee to fulfill some or all of that TSC Co-Chair’s responsibility.




 




2.2           Meetings.  The Parties agree that each Party shall

provide to the other Parties the names of its staff that shall be responsible

for meeting Milestone Dates. The Technology Steering Committee shall meet,

either in person or by or a conference call, at the request of a Party, but no

less that once a month, until the last of the Critical Milestone Dates (as

extended by any period of Post-Transition Support under Section 3.5) to discuss

progress of the Transition.  The Special

Technology Consultant will attend all Technology Steering Committee

meetings.  The Transition Plan shall

serve as an agenda for each meeting and the individuals appointed by the TSC

Co-Chairs shall update the Transition Plan after each meeting.




 




2.3           Progress

Report.  After each

meeting or conference call, the appointed Technology Steering Committee

member(s) shall (and any other member may) update the Transition Plan

including, but not limited to, specifying in detail:




 




a.  any critical problem

encountered, discovered, or continuing during the preceding month, as the case

may be, including, without limitation, the failure of any Party in performing,

any delay of any Party in performing or the inadequate performance of any Party

which may prevent or tend to prevent completion of any task by the Milestone

Dates set forth in the Transition Plan;




 




b.  the estimated length of

any delay which may result from any critical problem; and




 






















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

portions.  The confidential redacted

portions have been filed separately with the Securities and Exchange

Commission.




 




11





























 




c.  the specific steps taken

or proposed to be taken by either or both Parties, as appropriate, to remedy

such critical problem.




 




SECTION

3.                TRANSITION PLAN




 




3.1           Transition Plan.  The Parties have begun to develop a detailed

implementation plan (the “Transition Plan”) for the Transition.  As used in this Agreement, the term

“Transition Plan” shall incorporate time schedules, equipment requirements and

other matters referenced in this Agreement. 

The Transition Plan shall allocate the development and implementation

responsibilities of each Party as set forth hereunder and shall describe, but

not be limited to, the following:




 




a.  transitioning

amextrader.com;




 




b.  maintaining amex.com and

americanstocks.com;




 




c.  providing certain services

through the MDS System; the ISS/WISSDM System; and the Siebel System as set

forth herein;




 




d.  developing a timetable for

the performance of each task (or completion of each deliverable) to be performed

by a party;




 




e.  developing a list of third

party providers/vendors with which Amex must execute its own agreements; and




 




f.  identifying the software,

equipment and personnel that Amex must provide for the Transition (except as

otherwise set forth herein).  Nasdaq

will provide appropriate software and personnel to support its responsibilities

in the Transition (except as otherwise set forth herein).




 




3.2           Milestone

Dates.  The Transition

Plan shall include dates by which certain tasks must be completed (“Milestone

Dates”), some Milestone Dates to be labeled as “critical” (“Critical Milestone

Dates”), for successful and timely implementation of the Transition.  Parts of the Nasdaq Technology shall have

different Critical Milestone Dates.  The

Critical Milestone Dates are as follows 

(“T” being the earlier of the Agreement Date or the date on which Amex

first obtains funding for the Transition):




 




•                                          for

Siebel:  T + 3 months;




 




•                                          for

AmexTrader:  T + 3 months;




 




•                                          for

ISS/WISSDM:  T + 2 years;




 




•                                          for

MDS:   T + 1 year;




 




•                                          for

Amex.com/americanstocks.com:   T + 5

months;




 




•                                          for

Listing Investigations:  T + 18-24

months;




 




12





























 




•                                          for

Market Operations:  T + 12 months;




 




•                                          for

AmexOnline:  T + 12 months; and




 




•                                          for

Economic Research Databases:




 




•                                          DataMart:  June 30,

2002;




 




•                                          CommFin:  June 30,

2002;




 




•                                          Summary

data (Daily, Monthly, Yearly, NProf):  T

+ 12 months;




 




•                                          Delist

and Liquidity data:  T + 3 months but in

no event beyond March 31, 2002;




 




•                                          Short

Interest data:  T + 3 months.




 




Anything herein to the contrary notwithstanding, the

Critical Milestone Dates may only be altered by written agreement of the TSC

Co-chairs.  The Parties recognize that

all deliverables and schedules related to such deliverables, including the

Milestone Dates but not including the Critical Milestone Dates, are based on

certain assumptions about the basic functionalities of each others’ systems and

that each deliverable and schedule related to the deliverable are contingent on

the terms and conditions preceding the event, as specified in the Transition

Plan. If the Transition Plan must be modified, the Parties agree to follow the

procedures in Section 3.3 below.




 




3.3           Modifications.  Prior to a Critical Milestone Date, a Party

may request a modification to that part of the Transition Plan leading up to

that Critical Milestone Date which request shall be presented to the other

Parties in writing.  Any such request

shall indicate whether the modification, in the reasonable and good faith

judgment of the requesting Party, would result in an extension of, or other

change to, the Milestone Dates and shall be directed to the TSC Co-chairs.  Such a request shall not be unreasonably

denied.  However, if a Party receiving

the request believes that the request for modification is not reasonable based

on the determination that the Critical Milestone Date will not be met, such

request for modification will be raised as a Dispute under the Master

Agreement.




 




3.4           Extension

of Milestone Dates.




 




a.  The Parties acknowledge

that although the Parties may agree, from time to time, to modify schedules and

other important Milestone Dates, none of the Parties has wide-ranging

flexibility to extend a Critical Milestone Date as may be requested by any

other Party.  Anything herein to the

contrary notwithstanding, in the event of any delay, or threatened delay in

meeting a Critical Milestone Date, other than an event of Force Majeure

discussed below in Section 3.4(b), a Party shall raise the

issue as a Dispute under the Master Agreement. 

The Parties may waive raising such issue as a Dispute if they all agree.




 




13





























 




b.  The Parties’ rights and

obligations in the event of an occurrence of force majeure shall be as set

forth in Article 8 of the Master Agreement.




 




c.  In order to anticipate and

reduce the effect of delays or failures, the Parties agree to notify each other

as soon as there is any reason to believe that any Milestone Date will be

delayed.




 




3.5           Post-Transition Support.




 




a.  Notwithstanding anything

otherwise set forth in the Master Agreement, should Amex require Nasdaq to

continue to provide Amex with Nasdaq Technology to Amex as set forth herein

after a Critical Milestone Date (“Post-Transition Support”), Amex shall provide

Nasdaq written notice specifying the period of support requested (not to exceed

ninety (90) days as soon as Amex has reason to believe that such

Post-Transition Support will be necessary, but no later than thirty (30) days  prior to the Critical Milestone Date for

that part of the Nasdaq Technology. Amex may request that, for all Nasdaq

Technology except the Economic Research databases, Post-Transition Support be

provided for up to three additional periods (including in increments but each

period not to exceed ninety (90) days by providing notice to Nasdaq as soon as

Amex has reason to believe that such additional Post-Transition Support will be

necessary, but at least thirty (30) days  prior

to the expiration of the then-current period of Post-Transition Support. Amex

may, thus, for all Nasdaq Technology except the Economic Research databases,

request Post-Transition Support for up to three hundred and sixty (360) days.

For the DataMart and CommFin Economic Research databases (and only those

Economic Research databases), Amex may request only one Post-Transition Support

period not to exceed ninety (90) days.




 




b.  If properly requested,

Nasdaq shall provide Post-Transition Support for Nasdaq Technology other than

the DataMart and CommFin databases at a rate equal to i) the Fully-Loaded Cost

for the Nasdaq Technology associated with the Post-Transition Support, plus ii)

the mark-up specified below on the direct cost component of that Fully Loaded

Cost. For such Nasdaq Technology used to support both Nasdaq and Amex, Amex

will only be responsible for its Share of that Fully Loaded Cost plus the

mark-up on its Share. For MDS, ISS/WISSDM and Siebel, Amex’s “Share” shall have

the meaning specified in Sections 1.1(a)(iv), 1.1(b)(vi),  1.1(c)(iii),

respectively.  For AmexOnline, Amex’s “Share” shall be *****. For the DataMart and

CommFin databases, if properly requested, Nasdaq shall provide one ninety (90)

day period of Post-Transition Support for ****.

 These costs shall be Non-Fund

Costs as provided in Section 7.2.




 




c.  If Nasdaq develops any MDS

Enhancements or ISS/WISSDM Enhancements during a period of Post-Transition

Support, in addition to any Fully Loaded Costs to be paid by Amex for the

enhancements, Amex shall pay a mark-up on the direct cost component of the

Fully Loaded Costs incurred during the period of Post-Transition Support as

specified below. Notwithstanding the foregoing, if the original




 






















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

portions.  The confidential redacted

portions have been filed separately with the Securities and Exchange

Commission.




 




14





























 




schedule

proposed by Nasdaq for the development of the enhancement called for it to be

complete before the relevant Critical Milestone Date or the end of a period of

Post-Transition Support, Amex will not be required to pay any mark-up resulting

from the extension of development into a first or subsequent Post-Transition

Support period if the delay was caused by Nasdaq’s negligence or willful delay,

or Amex approved the delay in writing; and Amex will only be required to pay

one-half of the otherwise applicable markup if the delay was not caused by the

negligence or willful delay of either party. If the delay was caused by the negligence

or willful delay of Amex, the full mark-up will apply.




 




d.  The mark-up on the direct

costs component of Fully Loaded Costs shall be as follows:




 




	

  Technology


  	

   


  	

  First 90-


  Day Period


  	

   


  	

  Second 90-


  Day Period


  	

   


  	

  Third 90-Day


  Period


  	

   


  	

  Fourth 90-Day


  Period


  	

   


  
	

  MDS, Listing Investigations


  	

   


  	

  ****


  	

   


  	

  ****


  	

   


  	

  ****


  	

   


  	

  ****


  	

   


  
	

  ISS/WISSDM


  	

   


  	

  ****


  	

   


  	

  ****


  	

   


  	

  ****


  	

   


  	

  ****


  	

   


  
	

  Siebel,

  AmexOnline, amex.com, americanstocks.com, amextrader.com, Market Operations


  	

   


  	

  ****


  	

   


  	

  ****


  	

   


  	

  ****


  	

   


  	

  ****


  	

   


  





 




e.  For purposes of Section 1.1,

the Critical Milestone Date for each component of Nasdaq Technology shall be

deemed extended to the end of any period of Post-Transition Support for that

component.




 




3.6           Early

Termination of Receipt of Nasdaq Technology.  Upon sixty (60) days’ written notice, Amex

may discontinue the receipt of any item of the Nasdaq Technology. Amex shall be

liable for all costs due to Nasdaq pursuant to this Agreement up to the

effective date of discontinuance plus Nasdaq’s reasonable Fully-Loaded Costs

associated with winding down the provision of that element of the Nasdaq

Technology. It is anticipated that these costs may include amounts already

expended in the development of enhancements for Amex, termination fees due to

consultants, severance amounts paid to employees who were solely dedicated to

providing services for the Transition (but such fees for any individual

employee shall not exceed Nasdaq’s standard severance package for an employee

who had been working at Nasdaq for the same period of time as that employee had

been performing services solely for Amex) and depreciation for equipment that

was expected to be used up to a Critical Milestone Date. Nasdaq will use

commercially reasonable efforts to mitigate these costs.




 




15





























 




3.7           Post-Critical

Milestone Date.  Subject

to this Agreement and assuming all obligations leading up to the Critical

Milestone Dates are fulfilled, after the Critical Milestone Dates, the

Transition shall be complete and the Parties will no longer have any

obligations to the other Parties as the operation, development, maintenance or

support of the Nasdaq Technology, unless the Parties otherwise agree (except

with respect to those parts of the Nasdaq Technology for which Amex has the

right as set forth herein to request Post-Transition Support, where if Amex

elects to receive Post-Transition Support, if applicable, in which case the

Parties obligations with respect to those parts of the Nasdaq Technology shall

terminate at the end of the period of Post-Transition Support).




 




3.8           Change of

Control.




 




a.  MDS.  Until the Critical Milestone Date for the

MDS system (as extended by any period of Post-Transition Support), Amex will be

entitled to receive Amex MDS Data for its own base issues and issues not added

as a result of Change of Control that involves, directly or indirectly, a

listing venue.  In addition, if Amex

undergoes a Change of Control that involves, directly or indirectly, a listing

venue (including, but not limited, to instances where the Change of Control

involves a Person that is an Affiliate of a listing venue), the number of Amex

issues included in the Amex MDS Data as a result of the Change of Control may

increase annually by up to ***** of the number of Amex base issues,

as of the time of the Change of Control (e.g., if on January 1, 2003, Amex is

acquired by or acquires another exchange and, at that time, Amex has 800 equity

listings, it will be entitled in 2003 to receive Amex MDS Data for up to 80

issues that are Amex issues due to the Change of Control, and 168 such issues

in 2004). Issues that are brought to list on Amex by Persons who are not

listing venues, but who have acquired Control of Amex shall not be considered

Amex issues as a result of Change of Control.




 




b.  ISS/WISSDM.  From the date that Nasdaq splits the

ISS/WISSDM data feed until the Critical Milestone Date for the ISS/WISSDM

System (as extended by any period of Post-Transition Support), Amex will be

entitled to the use of the ISS/WISSDM System for its own base issues and issues

not added as a result of Change of Control that involves, directly or

indirectly, a listing venue.  In

addition, if Amex undergoes a Change of Control that involves, directly or

indirectly, a listing venue (including, but not limited, to instances where the

Change of Control involves a Person that is an Affiliate of a listing venue),

the number of Amex issues included in the ISS/WISSDM System as a result of the

Change of Control may increase annually by up to ***** of the number of Amex base issues, as of the

time of the Change of Control (e.g., if on January 1, 2003, Amex is acquired by

or acquires another exchange and, at that time, Amex has 800 equity listings,

it will be entitled in 2003 to access the ISS/WISSDM 




 






















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

portions.  The confidential redacted

portions have been filed separately with the Securities and Exchange

Commission.




 




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

portions.  The confidential redacted

portions have been filed separately with the Securities and Exchange

Commission.




 




16





























 




System for up to 80 issues that are Amex issues due to the Change of

Control, and 168 such issues in 2004). Issues that are brought to list on Amex

by Persons who are not listing venues, but who have acquired Control of Amex

shall not be considered Amex issues as a result of Change of Control.




 




c.  Siebel.  During any period of Post-Transition Support

for Siebel (as extended by any period of Post-Transition Support), Amex will be

entitled to the use of the Siebel System for its own base issues and issues not

added as a result of Change of Control that involves, directly or indirectly, a

listing venue.  In addition, if Amex

undergoes a Change of Control that involves, directly or indirectly, a listing

venue (including, but not limited, to instances where the Change of Control

involves a Person that is an Affiliate of a listing venue), the number of Amex

issues included in the Siebel System during the period of Post-Transition

Support as a result of the Change of Control may increase annually by up to **** of the number of Amex base issues, as

of the time of the Change of Control. Issues that are brought to list on Amex

by Persons who are not listing venues, but who have acquired Control of Amex

shall not be considered Amex issues as a result of Change of Control.




 




d.  Economic Research Databases.  If Amex undergoes a Change of Control that

involves, directly or indirectly, a listing venue (including, but not limited,

to instances where the Change of Control involves a Person that is an Affiliate

of a listing venue), Nasdaq may immediately terminate the provision of all

Services related to the CommFin and DataMart Economic Research databases.




 




e.  General.  If Amex undergoes a Change of Control

involving an acquisition by or other combination, direct or indirect, with the

New York Stock Exchange, Nasdaq may immediately terminate the provision of all

Services related to ISS/WISSDM. For all Nasdaq Technology (other than

ISS/WISSDM when the New York Stock Exchange is involved), if the Amex undergoes

a Change of Control, Nasdaq will continue to provide such Nasdaq Technology to

Amex until the earlier of:  (i) the Critical

Milestone Date for such Nasdaq Technology; or (ii) six (6) months from the date

that Amex undergoes the Change of Control. During that six (6) month period or

up until the Critical Milestone Date, as applicable, Amex shall pay an

additional mark-up (in addition to any other mark-up that may be applicable) on

the direct cost component of all relevant Fully Loaded Costs equal to the

mark-up that would apply during the first Post-Transition Support period for

the relevant Nasdaq Technology. After that date, Nasdaq may stop providing such

Nasdaq Technology and any further Post-Transition Support.




 




SECTION

4.                STAFFING, TRAINING AND

EQUIPMENT.




 




4.1           Mutual

Obligation to Provide Information and Personnel.  Each Party shall make available to the other

Parties such information and personnel knowledgeable in its operations as

specified in the Transition Plan or agreed to by the Parties to facilitate

timely completion of a Party’s obligations. 

The Parties shall staff the project in accordance with the Transition

Plan or as otherwise agreed to hereafter.




 




4.2           Training.  Nasdaq shall provide all reasonable

instruction and training to enable Amex to understand the Nasdaq Technology as

provided by Nasdaq. Instruction




 




17





























 




and

training shall be limited to the code and configuration specific to the

applications.  Nasdaq will not provide

instruction or training on Oracle, C++ or other programming protocols, third

party software packages (except for Siebel as provided herein) or training on

production support for NT, Sequent, Unisys, or Oracle platforms and operating

systems.




 




4.3           Equipment.  Each Party shall provide all requisite

hardware and other equipment assigned to it in the Transition Plan or as agreed

to by the Parties.




 




SECTION

5.                EMPLOYEES




 




5.1           Performance

Standards.  The standards

for the performance of the Nasdaq Technology furnished pursuant to the terms of

this Agreement that were in effect upon the Effective Date of this Agreement

will remain in full force and effect until such time as the Parties may

mutually agree upon appropriate new criteria to replace them.  All other work or tasks shall be performed

in a good and workmanlike manner.




 




5.2           Conduct

of Personnel.  Each Party

warrants that while on-site at facilities of the other Parties, its personnel

will comply with the sections of the other Parties’ Employee Handbooks related

to Equal Employment Opportunities, Sexual Harassment, and Substance Abuse

Policies as if its personnel were employees of such Parties.  Each Party will provide the other Parties

with a current copy of its Employee Handbook within ten (10) days of the

Effective Date of this Agreement. Each Party will also promptly provide the

other Parties with copies of any updates to its Employee Handbook.




 




5.3           Security.  Each Party will instruct its personnel to

comply with the security regulations in effect at the facilities of the other

Parties that its personnel may visit.




 




5.4           Removal

of Personnel.  In the course of performing pursuant to this Agreement, if a Party

notifies either of the other Parties that it is not satisfied with the

performance or conduct of an employee of that Party, that Party will promptly

a) investigate the matter and take appropriate action which may

include:  (i) removing the

applicable person from that Party’s performance of this Agreement and providing

the notifying Party with prompt written notice of such removal; and

(ii) replacing the applicable person with a similarly qualified

individual; and b) take such other action as it deems appropriate to prevent

a recurrence.  For alleged breaches of

security and violations of confidentiality while a Party’s personnel are on

another Party’s site or in instances where a Party reasonably believes that

another Party’s personnel pose a risk to the operation of its business or other

bona fide business reason while on that Party’s site, the Party may remove the

personnel in question, provided, that, it first notifies the

other Party of its concerns if it is reasonably feasible for it to furnish such

notice.  The Party whose personnel were

removed will promptly replace such personnel at its own cost.




 




5.5           Improper

Conduct.  In the event

that a Party suspects that any employee of another Party who has been involved

in the performance of this Agreement has been involved in improper, illegal or

unethical use of any data or information, including, but not limited to, Nasdaq

Technology or misuse of other Confidential Information, gained or




 




18





























 




accessed

from such performance or received as part of this Agreement furnished by such

other Party, then it may notify the other Party and request that it conduct an

investigation of such individual. The Party requesting such investigation will

provide such assistance to the Party conducting such investigation as the

investigating Party may reasonably request.




 




SECTION

6.                OWNERSHIP AND LICENSES




 




6.1           Ownership.  NASD and Amex do not acquire any right or

interest in the Nasdaq Technology, except as expressly provided herein.  Unless otherwise set forth herein, title and

full ownership rights in and to all Nasdaq Technology, in whole or in part,

whether copies of such technology were delivered to NASD or Amex or

subsequently made by NASD, Amex or on either’s behalf, shall remain with

Nasdaq.  In no event shall any licenses

granted in this Agreement be construed to include the right to market, license,

or otherwise transfer or assign all or any portion of the Nasdaq Technology,

except as expressly provided herein.  In

the event NASD or Amex is vested by operation of law or otherwise with the

ownership of any right, title or interest in any Derivative Work specified

hereunder as to be owned by Nasdaq, NASD and Amex hereby assign and transfer to

Nasdaq, and agree to cause any of their officers, employees, or agents who may

be vested with such ownership to assign and transfer to Nasdaq, by written

agreement satisfactory to Nasdaq, any and all right, title, and interest in

such Derivative Work. In the event NASD or Nasdaq is vested by operation of law

or otherwise with the ownership of any right, title or interest in any data

specified hereunder as to be owned by Amex, NASD and Nasdaq hereby assign and

transfer to Amex, and agree to cause any of their officers, employees, or

agents who may be vested with such ownership to assign and transfer to Nasdaq,

by written agreement satisfactory to Amex, any and all right, title, and

interest in such data.




 




6.2           Corporate

Names; Trade/Servicemarks. 

Nothing in the Agreement shall be deemed to grant a Party the right to

use the other Parties’ names, trade marks, or service marks.




 




6.3           On-Site

Visits.  The Transition

Plan may include a reasonable number of on–site visits to the other’s

facilities by each Party’s staff at a time and place agreed by the Parties.




 




6.4           Additional Terms.  The following provisions shall also be

applicable:




 




a.  Use of the Nasdaq

Technology shall be limited to the purposes set forth in the Agreement.




 




b.  Amex shall accurately

produce and reproduce all Nasdaq Intellectual Property notices on all copies

Amex receives, produces or reproduces of the Nasdaq Technology and any other

Nasdaq Confidential Information.  In no

event shall Amex remove or alter any such notices from any materials.




 




c.  The Software and

Documentation shall be considered Confidential Information as set forth in the

Agreement, notwithstanding the lack of any marking as to confidentiality, and

they shall be treated as such by NASD and Amex.




 




19





























 




d.  NASD and Amex shall attest

in writing to the number and location of all copies of the Software upon ten

(10) days prior written notice from Nasdaq.




 




e.  Documentation furnished to

NASD and Amex may be reproduced as needed by Amex for its authorized users, for

the purposes for which the Documentation was provided.




 




6.5           Return or

Destruction.  If Amex

discontinues use without the intention to resume permitted use of any Nasdaq

Technology that is not perpetually licensed to Amex hereunder, it will notify

Nasdaq in writing and return all copies of such Nasdaq Technology to Nasdaq if

Nasdaq requests the same in writing within thirty (30) days after Amex’s notice

of discontinuance. If Nasdaq does not request a return of such Nasdaq

Technology in writing within thirty (30) days after Amex’s notice of discontinuance,

Amex shall certify destruction of the same to Nasdaq.




 




6.6           Exclusion

of All Other Rights. 

Except as expressly provided herein, the Parties are  granted no rights or licenses whatsoever to

the property or rights of the other Parties. 

All rights and licenses not expressly granted in this Agreement are

hereby expressly reserved by owners of those rights or licenses.




 




SECTION

7.                COSTS AND PAYMENT

PROCEDURES.




 




7.1           Payment

Fund and Billing Procedures. 

Within  five (5) days of the Agreement Date, NASD shall establish on

behalf of the Parties an interest-bearing money market account at a financial

institution where NASD is currently a customer that will serve as the account

(“Fund”) from which the Parties shall obtain reimbursement for certain reasonable

costs that they incur as Amex becomes separate from Nasdaq Technology.

(“Self-Sufficiency Costs”).  A

description of the types of Self-Sufficiency Costs that have been approved is

attached hereto and incorporated herein as Exhibit B.




 




a.  NASD shall be the

administrator of the Fund and its cost of administration shall be considered a

Self-Sufficiency Cost.




 




b.  Nasdaq, NASD and Amex

shall deliver to each of the TSC Co-Chairs at the Technology Steering Committee

meetings their respective invoices, with any necessary backup, in form

reasonably agreeable to the Parties, with respect to the amount of the

Self-Sufficiency Costs borne by such Party for the period preceding the

Technology Steering Committee meeting.




 




c.  Following delivery of the

documentation referred to above, the Party receiving such documentation and/or

its representative(s) shall be given reasonable opportunity to review the

documentation and other underlying information related to the above and to

discuss the same with the Party delivering the documentation.  A Party shall have until ten (10) days,

absent bad faith on the part of the Party delivering the documentation, to give

written notice in reasonable detail to the Party supplying the documentation

(through its TSC Co-Chair) of any disagreement regarding such report (an

“Objection Notice”).  Copies of such

Objection Notices shall be forwarded to the other TSC Co-Chair.  Absent such timely delivery of an Objection

Notice and bad faith on the Party delivering the documentation, the documentation

as delivered shall be




 




20





























 




presumptively

binding (but such designation shall not impact the audit rights of a Party

pursuant to the Master Agreement) on the Parties hereto.  Any objections shall be resolved pursuant to

the Dispute Resolution procedures set forth in the Master Agreement.




 




d.  Invoices that are

presumptively binding shall be submitted to the NASD’s designee for payment to

NASD, Amex or Nasdaq, as applicable. 

Upon notice from NASD that funds are needed, NASD and Nasdaq will each

deposit into the Fund equal amounts of the funds needed within fifteen (15)

days.  The total amount to be deposited

into the Fund over the life of the Fund shall be $29 million. NASD and Nasdaq

shall each be responsible for depositing no more than $14.5 million in the Fund

over the life of the Fund for reimbursement of the Self-Sufficiency Costs. Any

amounts that remain in the Fund after the Transition (i.e., the difference between

$29 million and all funds spent, with binding approval, during the Transition)

shall be paid equally to Amex, Nasdaq and NASD.




 




7.2           Non-Fund

Costs.  Costs to Nasdaq for the provision of the

Nasdaq Technology to Amex shall not be reimbursable from the Fund (“Non-Fund

Costs”) and shall be paid to Nasdaq directly by Amex within thirty (30) days of

receipt of an invoice.  Such costs shall

be calculated as Fully Loaded Costs.




 




7.3           Price/Cost

Information; Cost Reduction Strategies.  As part of their respective budget

processes, Nasdaq will provide Amex annually the expected pricing  for the Nasdaq Technology to be furnished

pursuant to the terms of this Agreement for the upcoming budget year and each

Party will provide to the other Parties its expected Self-Sufficiency Costs for

the upcoming year.  During the year,

Nasdaq will notify Amex as promptly as reasonably possible should Nasdaq

discover that the actual pricing for the Nasdaq Technology will be materially

different than the estimate previously submitted and each Party will notify the

other Parties as promptly as reasonably possible after a Party discovers that

its actual Self-Sufficiency Costs will be materially different than the

estimate previously submitted.  The

Parties will also review the feasibility of establishing specific cost reduction

and limitation objectives annually




 




SECTION

8.                REPRESENTATIONS AND

WARRANTIES.




 




8.1           Representations

and Warranties of the Parties. 

Each Party’s representations and warranties to the other are as set

forth in Article 11 of the Master Agreement. In addition, each Party represents

and warrants that it has not used any other Party’s data, information, Software

or Documentation for any other purpose than the one for which the data,

information, Software or Documentation was provided.




 




8.2           Exclusion

of Implied Warranties. 

These warranties and the warranties set forth in Article 11 of the

Master Agreement are exclusive and expressly in lieu of all other warranties,

and each Party explicitly disclaims all other warranties, express or implied,

including any warranty of merchantability or fitness for a particular purpose.




 




SECTION

9.                CONFIDENTIAL INFORMATION.  The Parties’ confidentiality obligations

shall be as set forth in Article 4 of the Master Agreement but, notwithstanding




 




21





























 




anything otherwise set forth therein, those

confidentiality provisions shall supersede the Confidentiality and

Non-Disclosure Agreement dated June 22, 2001 and previously executed between

Nasdaq and Amex.




 




SECTION

10.             TERM.  The term of this Agreement shall commence on

the Agreement Date and shall continue 

as set forth in Article 6 of the Master Agreement.




 




SECTION

11.             INDEMNIFICATION




 




11.1         Mutual

Indemnity.  The Parties’

indemnification obligations shall be as set forth in Article 3 of the Master

Agreement.




 




11.2         Infringement

of Intellectual Property Rights.  In the event that Amex’s use of the Nasdaq Technology under this

Agreement is or Nasdaq determines is likely to be enjoined due to a claim

covered by the indemnity obligations set forth in this Section, Nasdaq may, at

its expense and at its sole discretion, either:  (i) procure for Amex the right to use the enjoined Nasdaq

Technology; or (ii) replace or modify the infringing portion of the Nasdaq

Technology with a non-infringing equivalent substitute provided, however, that,

if none of the above two options are reasonably available after commercially

reasonable efforts by Nasdaq to accomplish the same, Nasdaq may, upon thirty

(30) days notice, terminate the license and all related rights and

responsibilities in connection with the infringing portion of the Nasdaq

Technology.




 




11.3         Extent of

Liability.  If the use of

any component of the Nasdaq Technology by Amex is enjoined due to a claim

covered by the indemnity obligations set forth in Article 3 of the Master

Agreement or Nasdaq terminates Amex’s right to use that component under Section 11.2,

if Nasdaq knew of the claim or the likelihood of such a claim as of the

Agreement Date, Nasdaq shall pay to Amex an amount equal to the fair market

value of the component whose use is enjoined.




 




SECTION

12.             DISPUTE RESOLUTION.  The Parties’ dispute resolution

agreement obligations shall be as set forth in the Master Agreement, except

that:  (i) Disputes regarding whether a

proposed enhancement is needed for the regulation of the Amex market shall be

resolved by a panel composed of Michael Ryan, Ed Knight and the Special

Technology Consultant; the decision of such panel to be final and binding; and

(ii) Nasdaq and Amex shall have no obligation to follow the Dispute resolution

procedures set out in the Master Agreement with respect to a claim that the

Amex Replacement System described in Section 1.1(b) infringes Nasdaq’s patent

rights beyond the scope of Nasdaq’s agreement not to sue for such infringement.




 




SECTION

13.             LITIGATION.  A Party shall give prompt written notice to

the other Parties if it knows of any pending or threatened actions, suits or

proceedings or of facts which would lead a reasonable person to believe that it

would give rise to such threats, with respect to the notifying Party that have,

or are reasonably likely to have:   (i)

a material and adverse affect on the Transition or on the rights or remedies of

either of the other Parties or on the ability of the notifying Party to perform

its obligations hereunder; or (ii) a Material Adverse Effect.  The existence of any of the above may be

treated as a Dispute by the other Party.




 




22





























 




SECTION

14.             MISCELLANEOUS

MATTERS.  The Parties

will be subject to Article 14, Miscellaneous, of the Master Agreement.




 




SECTION

15.             DEFINITIONS.  To the extent a defined term is used in this

Agreement and the definition is not set forth herein, the definitions in

Article 1, Definition and Construction, of the Master Agreement shall be

applicable.




 




“Change of

Control” of Amex shall mean (i) Amex selling substantially all of its Assets,

(ii) a Person acquiring Control of Amex after Amex’s spin-off from the NASD

Family, or (iii) Amex undergoing a merger, being acquired or undertaking an

acquisition or being involved in a substantially similar transaction.  Amex’s spin-off from the NASD Family will

not be considered a Change of Control.




 




“Critical

Milestone Dates” shall have the meaning provided in Section 3.2.




 




“Day” means a

calendar day.




 




“Derivative Work”

shall have the meaning specified in 17 U.S.C. § 101.




 




“Documentation”

shall mean all written material related to the referenced Software or System to

the extent that the material permits a Party to use the Software or System in

the manner permitted in this Agreement.




 




“Fully-Loaded

Costs” shall mean (a) direct costs (for example, cost of obtaining required

hardware and software; cost of employees including, but, not limited to,

benefits, salary, recruiting; cost of consultants; travel, meetings, training;

any applicable taxes; and other direct cost categories included as permitted

under this Agreement), and (b) administrative overhead of *****  % based on (a) direct

costs. It is the intention of the Parties that the Fully-Loaded Costs and the

Self-Sufficiency Costs include similar cost categories, regardless of whether

the same categories are specifically referenced in Exhibits B or C or in the

definition of Fully-Loaded Costs.  For

illustration purposes, attached hereto and incorporated herein as Exhibit C, is

a list of categories comprising Nasdaq’s Fully Loaded Costs for its ISS and MDS

Systems.




 




“Intellectual

Property” shall mean domestic and foreign patents, patent applications,

registered and unregistered trade marks and service marks, registered and

unregistered copyrights, trade names, computer programs, data bases, trade

secrets, proprietary information and include all rights in information created

under laws governing patents, copyrights, mask works, trade secrets,

trademarks, publicity rights, or any other law that permits a person,

independently of contract, to control or preclude another person’s use of the

information on the basis of the rights holder’s interest in the information.




 






















*****  Confidential Treatment has been requested

for the redacted portions.  The

confidential redacted portions have been filed separately with the Securities

and Exchange Commission.




 




23





























 




“Milestone Dates”

shall have the meaning provided in Section 3.2.




 




“Nasdaq

Technology” shall have the meaning provided in 

Section

1.1.




 




“Nasdaq Family”

shall mean Nasdaq and its Affiliates, collectively.




 




“NASD Family”

shall mean NASD and its Affiliates, collectively.




 




“Parties” shall have

the meaning provided in the first paragraph hereof.




 




“Person” shall

mean a natural person, corporation, partnership, limited liability company,

association or other governmental or non-governmental entity.




 




“SEC” shall have

the meaning provided in the first paragraph hereof.




 




“Software” shall

mean the set of programs (object, and if so noted in the Agreement, source

programs) to be provided hereunder.




 




“Technology

Steering Committee” shall have the meaning provided in Section 2.1.




 




“Transition Plan”

shall have the meaning provided in Section 3.1.




 




24





























 




IN WITNESS WHEREOF, the Parties agree to be bound by

the foregoing.




 




	

  The American Stock

  Exchange, LLC


  	

   


  
	

   


  	

   


  	

   


  
	

  By: 


  	

  /s/ Salvatore F. Sodano


  	

   


  
	

  Name:  Salvatore F. Sodano


  	

   


  
	

   


  	

   


  
	

  Title:  CHAIRMAN AND CHIEF EXECUTIVE OFFICER


  	

   


  
	

  Authorized Officer


  	

   


  
	

  Date: 1/31/02


  	

   


  
	

   


  	

   


  
	

  The Nasdaq Stock

  Market, Inc.


  	

   


  
	

   


  	

   


  	

   


  
	

  By: 


  	

  /s/ Richard G. Ketchum


  	

   


  
	

  Name: Richard G.

  Ketchum


  	

   


  
	

   


  	

   


  
	

  Title: President


  	

   


  
	

  Authorized Officer


  	

   


  
	

  Date:1/31/02


  	

   


  
	

   


  	

   


  
	

  National Association of

  Securities Dealers, Inc.


  	

   


  
	

   


  	

   


  
	

  By: 


  	

  /s/ Robert R. Glauber


  	

   


  
	

  Name: Robert R. Glauber


  	

   


  
	

   


  	

   


  
	

  Title: Chairman and

  Chief Executive Officer


  	

   


  
	

  Authorized Officer


  	

   


  
	

  Date: 2/11/02


  	

   


  
					





 




25





























 




Exhibit A 




 




Anyone with knowledge of the design of  ISS System (Concept through


Implementation phases)




 




*****




 






















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

portions.  The confidential redacted

portions have been filed separately with the Securities and Exchange

Commission.




 




26





























 




Exhibit B




 




SELF SUFFICIENCY

COSTS




 




Permitted Direct Self-Sufficiency Costs:




 




1.  Staff /

Consultants - Benefits, salaries, recruiting expenses, and other

costs of the full time employees or consultant equivalents required to either

build replacement systems or separate Amex from Nasdaq Technology, pursuant to

the Agreement (i.e. separating Amex in the case of Siebel or building the new

data warehouse) (based on the percentage of time that they work on the building

or separation). This will generally cover software development efforts,

including installing cabling, configuration work, and similar efforts (but not

on-going operations support)   and QC

support required to transition the new systems.  This includes Amex, and Nasdaq to the extent Nasdaq is supporting

Amex in building the new systems or in separating from Nasdaq Technology.




 




2.  Premises –

Temporary space (reasonably necessary at a cost of no more than Amex’s average

occupancy rate at 65 Broadway, New York, New York, unless Amex obtains the

prior approval of the Special Technology Consultant for such higher cost),

supplies, postage, provisioning, and any other operating expenses for the

staff/consultants referenced in Section 1 above (based on the percentage of

time that they work on building new systems or separating Amex from

Nasdaq).  This includes both Amex and

Nasdaq to the extent Nasdaq is supporting Amex in building the new systems or

in separating from Nasdaq Technology .




 




3.  Network / Communications – Purchase and installation (not

ongoing costs) of new network and communications infrastructures and lines

required to establish links between the respective new systems and/or web

sites.  This includes Amex and Nasdaq to

the extent Nasdaq is supporting Amex in separating from Nasdaq Technology.




 




4.  Hardware -Capital costs associated with first time hardware

purchases for development/QA/training/production.  Costs related to capacity growth, both organic and new, are not

permitted and depreciation for these hardware purchases cannot be charged in

addition to the capital costs.  It is

expected that there will be some consulting support required for the hardware

installations.  This includes Amex and

Nasdaq to the extent Nasdaq is supporting Amex in separating from Nasdaq

Technology.




 




5.  Travel & Training - All associated with the

implementation of the new systems, for both Nasdaq and Amex




 




Permitted Indirect

Self-Sufficiency Costs:




 




1.  Management Overhead -  Project Management for the specific project

implementations ie. Siebel, MDS, ISS, .COMS 

at a rate of *****  of  Permitted Direct Self-Sufficiency Costs,

with




 






















*****  Confidential Treatment has been requested

for the redacted portions.  The

confidential redacted portions have been filed separately with the Securities

and Exchange Commission.




 




27





























 




the exception of

capital costs where the *****  will

only be on the amount depreciated by a Party in that year.




 




2.  Outside

Legal Expenses:  Outside

legal expenses associated with contract reviews for new vendors (hardware,

software and contractors) of Amex and of Nasdaq to the extent Nasdaq is

supporting Amex in separating from Nasdaq Technology.  The Parties anticipate that such expenses will only be

reimbursable from the Fund in extraordinary circumstances where the subject

matter of the contract (or part thereof) is outside the reasonable expertise of

the applicable Party’s in-house legal department and the reimbursement of such

costs must be pre-approved by the TSC Co-Chairs.




 




The

Permitted Costs listed above are the costs to be reimbursed from the  Fund. 

Below are examples of things not chargeable against the Fund:




 




Non-Permitted

Costs: 




 




•  Base operating,

maintenance or enhancement costs for Nasdaq Technology provided by Nasdaq




 




•  The Special

Technology Consultant




 




•  Transaction PMO

function (****)




 




 






















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

portions.  The confidential redacted

portions have been filed separately with the Securities and Exchange

Commission.




 




28





























 




Exhibit C




 




ISS & MDS




 




*****




 






















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

portions.  The confidential redacted

portions have been filed separately with the Securities and Exchange

Commission.




 




29