[Federal Register Volume 70, Number 48 (Monday, March 14, 2005)]
[Notices]
[Pages 12507-12517]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-4946]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-51304; File No. S7-24-89]


Joint Industry Plan; Notice of Filing and Immediate Effectiveness 
of Amendment No. 14 to the Joint Self-Regulatory Organization Plan 
Governing the Collection, Consolidation and Dissemination of Quotation 
and Transaction Information for Nasdaq-Listed Securities Traded on 
Exchanges on an Unlisted Trading Privileges Basis, Submitted by the 
Pacific Exchange, Inc., the National Association of Securities Dealers, 
Inc., the American Stock Exchange LLC, the Boston Stock Exchange, Inc., 
the Chicago Stock Exchange, Inc., the Cincinnati Stock Exchange, Inc., 
and the Philadelphia Stock Exchange, Inc.

March 2, 2005.

I. Introduction

    Pursuant to Rule 11Aa3-2 \1\ and Rule 11Aa3-1 \2\ under the 
Securities Exchange Act of 1934 (``Act''), notice is hereby given that 
on February 17, 2005, the Pacific Exchange, Inc. (``PCX'') on behalf of 
itself and the National Association of Securities Dealers, Inc. 
(``NASD''), the American Stock Exchange LLC (``Amex''), the Boston 
Stock Exchange, Inc. (``BSE''), the Chicago Stock Exchange, Inc. 
(``CHX''), the Cincinnati Stock Exchange, Inc. (``CSE''),\3\ and the 
Philadelphia Stock Exchange, Inc. (``Phlx'') (hereinafter referred to 
collectively as ``Participants''),\4\ as members of the operating 
committee (``Operating Committee'' or ``Committee'') of the Plan 
submitted to the Securities and Exchange Commission (``Commission'') a 
proposal to amend the Plan. The proposal represents the fourteenth 
amendment (``Amendment No. 14'') made to the Plan and reflects several 
changes unanimously adopted by the Committee. The Commission is 
publishing this notice of filing and immediate effectiveness to solicit

[[Page 12508]]

comments from interested persons on Amendment No. 14.
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    \1\ 17 CFR 240.11Aa3-2.
    \2\ 17 CFR 240.11Aa3-1.
    \3\ The Commission notes that the CSE changed its name to the 
National Stock Exchange, Inc. See Securities Exchange Act Release 
No. 48774 (November 12, 2003), 68 FR 65332 (November 19, 2003) (File 
No. SR-CSE-2003-12).
    \4\ PCX and its subsidiary the Archipelago Exchange were elected 
co-chairs of the operating committee (``Operating Committee'' or 
``Committee'') for the Joint Self-Regulatory Organization Plan 
Governing the Collection, Consolidation and Dissemination of 
Quotation and Transaction Information for Nasdaq-Listed Securities 
Traded on Exchanges on an Unlisted Trading Privilege Basis (``Nasdaq 
UTP Plan'' or ``Plan'') by the Participants.
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II. Background

    The Plan governs the collection, consolidation, and dissemination 
of quotation and transaction information for the Nasdaq Stock Market, 
Inc. (``Nasdaq'') National Market (``NNM'') and Nasdaq SmallCap 
securities listed on Nasdaq or traded on an exchange pursuant to 
unlisted trading privileges (``UTP'').\5\ The Plan provides for the 
collection from Plan Participants and the consolidation and 
dissemination to vendors, subscribers, and others of quotation and 
transaction information in ``eligible securities.'' \6\
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    \5\ Section 12 of the Act generally requires an exchange to 
trade only those securities that the exchange lists, except that 
Section 12(f) of the Act permits UTP under certain circumstances. 
For example, Section 12(f) of the Act, among other things, permits 
exchanges to trade certain securities that are traded over-the-
counter (``OTC/UTP''), but only pursuant to a Commission order or 
rule. For a more complete discussion of the Section 12(f) 
requirement, see Securities Exchange Act Release No. 36481 (November 
13, 1995), 60 FR 58119 (November 24, 1995).
    \6\ The Plan defines ``Eligible Securities'' as any Nasdaq 
National Market or Nasdaq SmallCap security, as defined in NASD Rule 
4200, (i) as to which unlisted trading privileges have been granted 
to a national securities exchange pursuant to Section 12(f) of the 
Act or which become eligible for such trading pursuant to order of 
the Commission, or (ii) which is also listed on a national 
securities exchange.
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    The Commission originally approved the Plan on a pilot basis on 
June 26, 1990.\7\ The parties did not begin trading until July 12, 
1993; accordingly, the pilot period commenced on July 12, 1993. The 
Plan was most recently extended on December 21, 2004.\8\
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    \7\ See Securities Exchange Act Release No. 28146, 55 FR 27917 
(July 6, 1990).
    \8\ See Securities Exchange Act Release No. 50855 (December 14, 
2004), 69 FR 76499 (December 21, 2004).
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III. Description and Purpose of the Amendment

    The complete text of the Plan, as amended, is attached as Exhibit 
A. The following is a summary of the changes to the Plan prepared by 
the Participants.
    A. Section I.A. of the Plan provides for the list of Plan 
Participants. Amendment No. 14 adds the Chicago Board Options Exchange 
(``CBOE'') and the New York Stock Exchange (``NYSE'') as new 
Participants to the Plan. In addition, CSE's name is modified to 
reflect their new name, National Stock Exchange (``NSX''). Lastly, the 
PCX address has been updated.
    B. Amendment 14 corrects a cross-reference to Section XIV contained 
in Section I.B. by replacing it with a reference to Section XIII 
(relating to the development costs owed by new Participants).\9\
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    \9\ Section XIII of the Plan specifies that a condition to 
becoming a Participant is to pay a proportionate share of $439,530 
which are the aggregate development costs previously paid by Plan 
Participants to the Processor.
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    C. Amendment 14 modifies Section III.Z. by removing the reference 
to Nasdaq Participant and moving it to new Section III.AA. as a 
separate definition.
    D. Amendment 14 modifies Section IV.C.4. to reflect previously 
approved language from Amendment 13A that was not incorporated into a 
recently published version of the Plan.\10\
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    \10\ See Securities Exchange Act Release No. 49711 (May 14, 
2004), 69 FR 29339, (May 21, 2004) (``Amendment No. 13A Approval 
Order'').
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    E. Section VIII.C. provides for the Participant market identifiers 
for quotation and transaction report information. Amendment No. 14 adds 
``W'' as the identifier for the CBOE and ``N'' for NYSE. Further, the 
reference to the CSE has been changed to NSX.
    F. Amendment 14 modifies Section XI. to reflect that the Processor 
will be available to accept and disseminate quotes and transaction 
reports as early as 4 a.m. Eastern Time. Currently the Plan states that 
quotations and transaction reports may be entered and disseminated as 
of 8 a.m. Eastern Time. Amendment No. 14 modifies the opening hours to 
4 a.m.\11\
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    \11\ PCX/ArcaEx has submitted a proposal to the Commission to 
begin quoting and trading at 4:00 a.m. Eastern Time. See Securities 
Exchange Act Release No. 50756 (November 30, 2004), 69 FR 70489, 
(December 6, 2004) (approving File No. SR-PCX-2004-83). To 
disseminate quotes and trades as of 4:00 a.m., PCX/ArcaEx requested 
that the Operating Committee and Nasdaq, as Plan Processor, modify 
the operating hours of the Processor.
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    G. Amendment 14 modifies Section 3.a.1. to Exhibit 1 to the Plan to 
reflect previously approved language from Amendment 13A that was not 
incorporated into the most recent version of the Plan.\12\
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    \12\ See 13A Approval Order, supra note 10.
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    According the Participants, Nasdaq as Processor will implement the 
new Processor hours in its next release. CBOE and NYSE may commence 
quoting and trading in Nasdaq-listed securities with the effectiveness 
of Amendment No. 14, once they complete the necessary development and 
implementation work.

IV. Date of Effectiveness of the Amendment

    The Commission has determined that the changes set forth in 
Amendment 14 are technical in nature, and thus have become effective 
upon filing with the Commission.\13\ At any time within 60 days of the 
filing of any such amendment, the Commission may summarily abrogate the 
amendment and require that such amendment be refiled in accordance with 
paragraph (b)(1) of Rule 11Aa3-2 under the Act \14\ and reviewed in 
accordance with paragraph (c)(2) of Rule 11Aa3-2 under the Act,\15\ if 
it appears to the Commission that such action is necessary or 
appropriate in the public interest, for the protection of investors, or 
the maintenance of fair and orderly markets, to remove impediments to, 
and perfect mechanisms of, a national market system or otherwise in 
furtherance of the purposes of the Act.\16\
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    \13\ 17 CFR 240.11Aa3-2(c)(3)(iii).
    \14\ 17 CFR 240.11Aa3-2(b)(1).
    \15\ 17 CFR 240.11Aa3-2(c)(2).
    \16\ See 17 CFR 240.11Aa3-2(c)(3)(iii).
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V. Solicitation of Comments

    The Commission seeks general comments on Amendment No. 14. 
Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the Plan 
amendment is consistent with the Act. Comments may be submitted by any 
of the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an e-mail to [email protected]. Please include 
File Number S7-24-89 on the subject line.

Paper Comments

     Send paper comments in triplicate to Jonathan G. Katz, 
Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., 
Washington, DC 20549-0609. All comment letters should refer to File No. 
S7-24-89. This file number should be included on the subject line if e-
mail is used. To help the Commission process and review your comments 
more efficiently, please use only one method. The Commission will post 
all comments on the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, 
all written statements with respect to the Plan amendment that are 
filed with the Commission, and all written communications relating to 
the Plan amendment between the Commission and any person, other than 
those that may be withheld from the public in accordance with the 
provisions of 5 U.S.C. 552, will be available for inspection and 
copying in the Commission's Public Reference Room. The text of the Plan 
is being

[[Page 12509]]

published as Exhibit A to this proposal. Copies of the proposal will 
also be available for inspection and copying at the office of the 
Secretary of the Committee, currently located at Pacific Exchange, Inc. 
and Archipelago Exchange L.L.C., 100 South Wacker Drive, Suite 2000, 
Chicago, IL 60606. All comments received will be posted without change; 
the Commission does not edit personal identifying information from 
submissions. You should submit only information that you wish to make 
available publicly. All submissions should refer to File No. S7-24-89 
and should be submitted on or before April 4, 2005.
    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\17\
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    \17\ 17 CFR 200.30-3(a)(27).

Margaret H. McFarland,
Deputy Secretary.

Exhibit A--Amendment No. 14; Joint Self-Regulatory Organization Plan 
Governing the Collection, Consolidation and Dissemination of Quotation 
and Transaction Information for Nasdaq-Listed Securities Traded on 
Exchanges on an Unlisted Trading Privilege Basis

    The undersigned registered national securities association and 
national securities exchanges (collectively referred to as the 
``Participants''), have jointly developed and hereby enter into this 
Nasdaq Unlisted Trading Privileges Plan (``Nasdaq UTP Plan'' or 
``Plan'').

I. Participants

    The Participants include the following:

A. Participants

1. American Stock Exchange LLC, 86 Trinity Place, New York, New York 
10006.
2. Boston Stock Exchange, 100 Franklin Street, Boston, Massachusetts 
02110.
3. Chicago Stock Exchange, 440 South LaSalle Street, Chicago, 
Illinois 60605.
4. Chicago Board Options Exchange, Inc., 400 South LaSalle Street, 
26th Floor, Chicago, Illinois 60605.
5. National Association of Securities, Dealers, Inc., 1735 K Street, 
NW., Washington, DC 20006.
6. National Stock Exchange, 440 South LaSalle Street, 26th Floor, 
Chicago, Illinois 60605.
7. New York Stock Exchange, Inc., 11 Wall Street, New York, New York 
10005.
8. Pacific Exchange, Inc., 115 Sansome Street, San Francisco, CA 
94104.
9. Philadelphia Stock Exchange, 1900 Market Street, Philadelphia, 
Pennsylvania 19103.

B. Additional Participants

    Any other national securities association or national securities 
exchange, in whose market Eligible Securities become traded, may 
become a Participant, provided that said organization executes a 
copy of this Plan and pays its share of development costs as 
specified in Section XIII.

II. Purpose of Plan

    The purpose of this Plan is to provide for the collection, 
consolidation and dissemination of Quotation Information and 
Transaction Reports in Eligible Securities from the Participants in 
a manner consistent with the Exchange Act.
    It is expressly understood that each Participant shall be 
responsible for the collection of Quotation Information and 
Transaction Reports within its market and that nothing in this Plan 
shall be deemed to govern or apply to the manner in which each 
Participant does so.

III. Definitions

    A. ``Current'' means, with respect to Transaction Reports or 
Quotation Information, such Transaction Reports or Quotation 
Information during the fifteen (15) minute period immediately 
following the initial transmission thereof by the Processor.
    B. ``Eligible Security'' means any Nasdaq National Market or 
Nasdaq SmallCap security, as defined in NASD Rule 4200: (i) as to 
which unlisted trading privileges have been granted to a national 
securities exchange pursuant to Section 12(f) of the Exchange Act or 
which become eligible for such trading pursuant to order of the 
Securities and Exchange Commission; or (ii) which also is listed on 
a national securities exchange.
    C. ``Commission'' and ``SEC'' shall mean the U.S. Securities and 
Exchange Commission.
    D. ``Exchange Act'' means the Securities Exchange Act of 1934.
    E. ``Market'' shall mean (i) when used with respect to Quotation 
Information, the NASD in the case of a Nasdaq market maker or a 
Nasdaq-registered electronic communications network/alternative 
trading system (hereafter collectively referred to as ``Nasdaq 
market participants'') acting in such capacity, or the Participant 
on whose floor or through whose facilities the quotation was 
disseminated; and (ii) when used with respect to Transaction 
Reports, the Participant through whose facilities the transaction 
took place or was reported, or the Participant to whose facilities 
the order was sent for execution.
    F. ``NASD'' means the National Association of Securities Dealers 
Inc.
    G. ``NASD Participant'' means an NASD member that is registered 
as a market maker or an electronic communications network or 
otherwise utilizes the facilities of the NASD pursuant to applicable 
NASD rules.
    H. ``NASD Transaction Reporting System'' means the System 
provided for in the NASD's Transaction Reporting Plan filed with and 
approved by the Commission pursuant to SEC Rule11Aa3-1, governing 
the reporting of transactions in Nasdaq securities.
    I. ``UTP Quote Data Feed'' means the service that provides 
Subscribers with the National Best Bid and Offer quotations, size 
and market center identifier, as well as the Best Bid and Offer 
quotations, size and market center identifier from each individual 
Participant in Eligible Securities.
    J. ``Nasdaq Level 2 Service'' means the Nasdaq service that 
provides Subscribers with query capability with respect to 
quotations and sizes in securities included in the Nasdaq System, 
best bid and asked quotations, and Transaction Reports.
    K. ``Nasdaq Level 3 Service'' means the Nasdaq service that 
provides Nasdaq market participants with input and query capability 
with respect to quotations and sizes in securities included in the 
Nasdaq System, best bid and asked quotations, and Transaction 
Reports.
    L. ``Nasdaq System'' means the automated quotation system 
operated by Nasdaq.
    M. ``UTP Trade Data Feed'' means the service that provides 
Vendors and Subscribers with Transaction Reports.
    N. ``Nasdaq Security'' or ``Nasdaq-listed Security'' means any 
security listed on the Nasdaq National Market or Nasdaq SmallCap 
Market.
    O. ``News Service'' means a person that receives Transaction 
Reports or Quotation Information provided by the Systems or provided 
by a Vendor, on a Current basis, in connection with such person's 
business of furnishing such information to newspapers, radio and 
television stations and other news media, for publication at least 
fifteen (15) minutes following the time when the information first 
has been published by the Processor.
    P. ``OTC Montage Data Feed `` means the data stream of 
information that provides Vendors and Subscribers with quotations 
and sizes from all Participants and Nasdaq market participants.
    Q. ``Participant'' means a registered national securities 
exchange or national securities association that is a signatory to 
this Plan.
    R. ``Plan'' means this Nasdaq UTP Plan, as from time to time 
amended according to its provisions, governing the collection, 
consolidation and dissemination of Quotation Information and 
Transaction Reports in Eligible Securities.
    S. ``Processor'' means the entity selected by the Participants 
to perform the processing functions set forth in the Plan.
    T. ``Quotation Information'' means all bids, offers, displayed 
quotation sizes, the market center identifiers and, in the case of 
NASD and Nasdaq, the NASD and Nasdaq market participant that entered 
the quotation, withdrawals and other information pertaining to 
quotations in Eligible Securities required to be collected and made 
available to the Processor pursuant to this Plan.
    U. ``Regulatory Halt'' means a trade suspension or halt called 
for the purpose of dissemination of material news, as described at 
Section X hereof or that is called for where there are regulatory 
problems relating to an Eligible Security that should be clarified 
before trading therein is permitted to continue, including a trading 
halt for extraordinary market activity due to system misuse or 
malfunction under Section X.E.1. of the Plan (``Extraordinary Market 
Regulatory Halt'').
    V. ``Subscriber'' means a person that receives Current Quotation 
Information or Transaction Reports provided by the Processor or 
provided by a Vendor, for its

[[Page 12510]]

own use or for distribution on a non-Current basis, other than in 
connection with its activities as a Vendor.
    W. ``Transaction Reports'' means reports required to be 
collected and made available pursuant to this Plan containing the 
stock symbol, price, and size of the transaction executed, the 
Market in which the transaction was executed, and related 
information, including a buy/sell/cross indicator and trade 
modifiers, reflecting completed transactions in Eligible Securities.
    X. ``Upon Effectiveness of the Plan'' means July 12, 1993, the 
date on which the Participants commenced publication of Quotation 
Information and Transaction Reports on Eligible Securities as 
contemplated by this Plan.
    Y. ``Vendor'' means a person that receives Current Quotation 
Information or Transaction Reports provided by the Processor or 
provided by a Vendor, in connection with such person's business of 
distributing, publishing, or otherwise furnishing such information 
on a Current basis to Subscribers, News Services or other Vendors.
    Z. ``NQDS'' means the data stream of information that provides 
Vendors and Subscribers with the best quotations and sizes from each 
Nasdaq Participant.
    AA. ``Nasdaq Participant'' means an entity that is registered as 
a market maker or an electronic communications network in Nasdaq or 
otherwise utilizes the facilities of The Nasdaq Stock Market 
pursuant to applicable NASD rules but does not include an NASD 
Participant as defined in Section III.G. of this Plan.

IV. Administration of Plan

A. Operating Committee: Composition

    The Plan shall be administered by the Participants through an 
operating committee (``Operating Committee''), which shall be 
composed of one representative designated by each Participant. Each 
Participant may designate an alternate representative or 
representatives who shall be authorized to act on behalf of the 
Participant in the absence of the designated representative. Within 
the areas of its responsibilities and authority, decisions made or 
actions taken by the Operating Committee, directly or by duly 
delegated individuals, committees as may be established from time to 
time, or others, shall be binding upon each Participant, without 
prejudice to the rights of any Participant to seek redress from the 
SEC pursuant to Rule 11Aa3-2 under the Exchange Act or in any other 
appropriate forum.
    An Electronic Communications Network, Alternative Trading 
System, Broker-Dealer or other securities organization 
(``Organization'') which is not a Participant, but has an actively 
pending Form 1 Application on file with the Commission to become a 
national securities exchange, will be permitted to appoint one 
representative and one alternate representative to attend regularly 
scheduled Operating Committee meetings in the capacity of an 
observer/advisor. If the Organization's Form 1 petition is 
withdrawn, returned, or is otherwise not actively pending with the 
Commission for any reason, then the Organization will no longer be 
eligible to be represented in the Operating Committee meetings. The 
Operating Committee shall have the discretion, in limited instances, 
to deviate from this policy if, as indicated by majority vote, the 
Operating Committee agrees that circumstances so warrant.
    Nothing in this section or elsewhere within the Plan shall 
authorize any person or organization other than Participants and 
their representatives to participate on the Operating Committee in 
any manner other than as an advisor or observer, or in any Executive 
Session of the Operating Committee.

B. Operating Committee: Authority

    The Operating Committee shall be responsible for:
    1. Overseeing the consolidation of Quotation Information and 
Transaction Reports in Eligible Securities from the Participants for 
dissemination to Vendors, Subscribers, News Services and others in 
accordance with the provisions of the Plan;
    2. Periodically evaluating the Processor;
    3. Setting the level of fees to be paid by Vendors, Subscribers, 
News Services or others for services relating to Quotation 
Information or Transaction Reports in Eligible Securities, and 
taking action in respect thereto in accordance with the provisions 
of the Plan;
    4. Determining matters involving the interpretation of the 
provisions of the Plan;
    5. Determining matters relating to the Plan's provisions for 
cost allocation and revenue-sharing; and
    6. Carrying out such other specific responsibilities as provided 
under the Plan.

C. Operating Committee: Voting

    Each Participant shall have one vote on all matters considered 
by the Operating Committee.
    1. The affirmative and unanimous vote of all Participants 
entitled to vote shall be necessary to constitute the action of the 
Operating Committee with respect to:
    a. Amendments to the Plan;
    b. Amendments to contracts between the Processor and Vendors, 
Subscribers, News Services and others receiving Quotation 
Information and Transaction Reports in Eligible Securities;
    c. Replacement of the Processor, except for termination for 
cause, which shall be governed by Section V(B) hereof;
    d. Reductions in existing fees relating to Quotation Information 
and Transaction Reports in Eligible Securities; and
    e. Except as provided under Section IV(C)(3) hereof, requests 
for system changes; and
    f. All other matters not specifically addressed by the Plan.
    2. With respect to the establishment of new fees or increases in 
existing fees relating to Quotation Information and Transaction 
Reports in Eligible Securities, the affirmative vote of two-thirds 
of the Participants entitled to vote shall be necessary to 
constitute the action of the Operating Committee.
    3. The affirmative vote of a majority of the Participants 
entitled to vote shall be necessary to constitute the action of the 
Operating Committee with respect to:
    a. Requests for system changes reasonably related to the 
function of the Processor as defined under the Plan. All other 
requests for system changes shall be governed by Section IV(C)(1)(e) 
hereof.
    b. Interpretive matters and decisions of the Operating Committee 
arising under, or specifically required to be taken by, the 
provisions of the Plan as written;
    c. Interpretive matters arising under Exchange Act Rules 11Aa3-1 
and 11Ac1-1; and
    d. Denials of access (other than for breach of contract, which 
shall be handled by the Processor),
    4. It is expressly agreed and understood that neither this Plan 
nor the Operating Committee shall have authority in any respect over 
any Participant's proprietary systems. Nor shall the Plan or the 
Operating Committee have any authority over the collection and 
dissemination of quotation or transaction information in Eligible 
Securities in any Participant's marketplace, or, in the case of the 
NASD, from NASD Participants.

D. Operating Committee: Meetings

    Regular meetings of the Operating Committee may be attended by 
each Participant's designated representative and/or its alternate 
representative(s), and may be attended by one or more other 
representatives of the parties. Meetings shall be held at such times 
and locations as shall from time to time be determined by the 
Operating Committee.
    Quorum: Any action requiring a vote only can be taken at a 
meeting in which a quorum of all Participants is present. For 
actions requiring a simple majority vote of all Participants, a 
quorum of greater than 50% of all Participants entitled to vote must 
be present at the meeting before such a vote may be taken. For 
actions requiring a \2/3\ majority vote of all Participants, a 
quorum of at least \2/3\ of all Participants entitled to vote must 
be present at the meeting before such a vote may be taken. For 
actions requiring a unanimous vote of all Participants, a quorum of 
all Participants entitled to vote must be present at the meeting 
before such a vote may be taken.
    A Participant is considered present at a meeting only if a 
Participant's designated representative or alternate 
representative(s) is either in physical attendance at the meeting or 
is participating by conference telephone, or other acceptable 
electronic means.
    Any action sought to be resolved at a meeting must be sent to 
each Participant entitled to vote on such matter at least one week 
prior to the meeting via electronic mail, regular U.S. or private 
mail, or facsimile transmission, provided however that this 
requirement may be waived by the vote of the percentage of the 
Committee required to vote on any particular matter, under Section C 
above.
    Any action may be taken without a meeting if a consent in 
writing, setting forth the action so taken, is sent to and signed by 
all Participant representatives entitled to vote with respect to the 
subject matter thereof. All the approvals evidencing the consent 
shall be delivered to the Chairman of the Operating Committee to be 
filed in the Operating

[[Page 12511]]

Committee records. The action taken shall be effective when the 
minimum number of Participants entitled to vote have approved the 
action, unless the consent specifies a different effective date.
    The Chairman of the Operating Committee shall be elected 
annually by and from among the Participants by a majority vote of 
all Participants entitled to vote. The Chairman shall designate a 
person to act as Secretary to record the minutes of each meeting. 
The location of meetings shall be rotated among the locations of the 
principal offices of the Participants, or such other locations as 
may from time to time be determined by the Operating Committee. 
Meetings may be held by conference telephone and action may be taken 
without a meeting if the representatives of all Participants 
entitled to vote consent thereto in writing or other means the 
Operating Committee deems acceptable.

E. Advisory Committee

1. Composition

    a. Each Plan Participant may designate three representatives to 
participate in the Advisory Committee. The representatives shall 
each be an employee of a member of that Participant, a professor or 
other academic involved in the scholarly study of the securities 
industry, or an expert in one or more areas of the securities 
industry.
    b. Each representative shall serve a one-year term on the 
Advisory Committee.

2. Authority

    The Advisory Committee shall have the opportunity to:
    a. Meet twice yearly, each meeting to occur one day prior to a 
meeting of the Operating Committee.
    b. Discuss any matter related to the operation of the Plan.
    c. Present written comments or inquiries to the Operating 
Committee regarding matters related to the operation of the Plan.
    d. Respond to written inquiries from the Operating Committee 
seeking comment from the Advisory Committee on matters related to 
the operation of the Plan.

V. Selection and Evaluation of the Processor

A. Generally

    The Processor's performance of its functions under the Plan 
shall be subject to review by the Operating Committee at least every 
two years, or from time to time upon the request of any two 
Participants but not more frequently than once each year. Based on 
this review, the Operating Committee may choose to make a 
recommendation to the Participants with respect to the continuing 
operation of the Processor. The Operating Committee shall notify the 
SEC of any recommendations the Operating Committee shall make 
pursuant to the Operating Committee's review of the Processor and 
shall supply the Commission with a copy of any reports that may be 
prepared in connection therewith.

B. Termination of the Processor for Cause

    If the Operating Committee determines that the Processor has 
failed to perform its functions in a reasonably acceptable manner in 
accordance with the provisions of the Plan or that its reimbursable 
expenses have become excessive and are not justified on a cost 
basis, the Processor may be terminated at such time as may be 
determined by a majority vote of the Operating Committee.

C. Factors To Be Considered in Termination for Cause

    Among the factors to be considered in evaluating whether the 
Processor has performed its functions in a reasonably acceptable 
manner in accordance with the provisions of the Plan shall be the 
reasonableness of its response to requests from Participants for 
technological changes or enhancements pursuant to Section IV(C)(3) 
hereof. The reasonableness of the Processor's response to such 
requests shall be evaluated by the Operating Committee in terms of 
the cost to the Processor of purchasing the same service from a 
third party and integrating such service into the Processor's 
existing systems and operations as well as the extent to which the 
requested change would adversely impact the then current technical 
(as opposed to business or competitive) operations of the Processor.

D. Processor's Right to Appeal Termination for Cause

    The Processor shall have the right to appeal to the SEC a 
determination of the Operating Committee terminating the Processor 
for cause and no action shall become final until the SEC has ruled 
on the matter and all legal appeals of right therefrom have been 
exhausted.

E. Process for Selecting New Processor

    At any time following effectiveness of the Plan, but no later 
than upon the termination of the Processor, whether for cause 
pursuant to Section IV(C)(1)(c) or V(B) of the Plan or upon the 
Processor's resignation, the Operating Committee shall establish 
procedures for selecting a new Processor (the ``Selection 
Procedures''). The Operating Committee, as part of the process of 
establishing Selection Procedures, may solicit and consider the 
timely comment of any entity affected by the operation of this Plan. 
The Selection Procedures shall be established by a two-thirds 
majority vote of the Plan Participants, and shall set forth, at a 
minimum:
    1. The entity that will:
    (a) Draft the Operating Committee's request for proposal for 
bids on a new processor;
    (b) Assist the Operating Committee in evaluating bids for the 
new processor; and
    (c) Otherwise provide assistance and guidance to the Operating 
Committee in the selection process.
    2. The minimum technical and operational requirements to be 
fulfilled by the Processor;
    3. The criteria to be considered in selecting the Processor; and
    4. The entities (other than Plan Participants) that are eligible 
to comment on the selection of the Processor.
    Nothing in this provision shall be interpreted as limiting 
Participants' rights under Section IV or Section V of the Plan or 
other Commission order.

VI. Functions of the Processor

A. Generally

    The Processor shall collect from the Participants, and 
consolidate and disseminate to Vendors, Subscribers and News 
Services, Quotation Information and Transaction Reports in Eligible 
Securities in a manner designed to assure the prompt, accurate and 
reliable collection, processing and dissemination of information 
with respect to all Eligible Securities in a fair and non-
discriminatory manner. The Processor shall commence operations upon 
the Processor's notification to the Participants that it is ready 
and able to commence such operations.

B. Collection and Consolidation of Information

    For as long as Nasdaq is the Processor, the Processor shall be 
capable of receiving Quotation Information and Transaction Reports 
in Eligible Securities from Participants by the Plan-approved, 
Processor sponsored interface, and shall consolidate and disseminate 
such information via the UTP Quote Data Feed, the UTP Trade Data 
Feed, and the OTC Montage Data Feed to Vendors, Subscribers and News 
Services. For so long as Nasdaq is not registered as a national 
securities exchange and for so long as Nasdaq is the Processor, the 
Processor shall also collect, consolidate, and disseminate the 
quotation information contained in NQDS. For so long as Nasdaq is 
not registered as a national securities exchange and after Nasdaq is 
no longer the Processor for other SIP datafeeds, either Nasdaq or a 
third party will act as the Processor to collect, consolidate, and 
disseminate the quotation information contained in NQDS.

C. Dissemination of Information

    The Processor shall disseminate consolidated Quotation 
Information and Transaction Reports in Eligible Securities via the 
UTP Quote Data Feed, the UTP Trade Data Feed, and the OTC Montage 
Data Feed to authorized Vendors, Subscribers and News Services in a 
fair and non-discriminatory manner. The Processor shall specifically 
be permitted to enter into agreements with Vendors, Subscribers and 
News Services for the dissemination of quotation or transaction 
information on Eligible Securities to foreign (non-U.S.) 
marketplaces or in foreign countries.
    The Processor shall, in such instance, disseminate consolidated 
quotation or transaction information on Eligible Securities from all 
Participants.
    Nothing herein shall be construed so as to prohibit or restrict 
in any way the right of any Participant to distribute quotation, 
transaction or other information with respect to Eligible Securities 
quoted on or traded in its marketplace to a marketplace outside the 
United States solely for the purpose of supporting an intermarket 
linkage, or to distribute information within its own marketplace 
concerning Eligible Securities in accordance with its own format. If 
a Participant requests, the Processor shall make information about 
Eligible Securities in the Participant's marketplace available to a

[[Page 12512]]

foreign marketplace on behalf of the requesting Participant, in 
which event the cost shall be borne by that Participant.

1. Best Bid and Offer

    The Processor shall disseminate on the UTP Quote Data Feed the 
best bid and offer information supplied by each Participant, 
including the Nasdaq market participants, and shall also calculate 
and disseminate on the UTP Quote Data Feed a national best bid and 
asked quotation with size based upon Quotation Information for 
Eligible Securities received from Participants. The Processor shall 
not calculate the best bid and offer for any individual Participant, 
including the NASD.
    The Participant responsible for each side of the best bid and 
asked quotation making up the national best bid and offer shall be 
identified by an appropriate symbol. If the quotations of more than 
one Participant shall be the same best price, the largest displayed 
size among those shall be deemed to be the best. If the quotations 
of more than one Participant are the same best price and best 
displayed size, the earliest among those measured by the time 
reported shall be deemed to be the best. A reduction of only bid 
size and/or ask size will not change the time priority of a 
Participant's quote for the purposes of determining time reported, 
whereas an increase of the bid size and/or ask size will result in a 
new time reported. The consolidated size shall be the size of the 
Participant that is at the best.
    If the best bid/best offer results in a locked or crossed 
quotation, the Processor shall forward that locked or crossed quote 
on the appropriate output lines (i.e., a crossed quote of bid 12, 
ask 11.87 shall be disseminated). The Processor shall normally cease 
the calculation of the best bid/best offer after 6:30 p.m., Eastern 
Time.

2. Eligible Securities

    a. Number of Eligible Securities--If the Commission by order 
expands the number of Eligible Securities beyond 1,000, the number 
of Eligible Securities that Participants may trade shall be phased 
in (added) according to the schedule set out below:
    (i) At the end of the first calendar quarter following the 
Commission's order expanding the number of Eligible Securities 
beyond 1,000 but in no case before September 30, 2001, Participants 
may commence trading 500 additional securities;
    (ii) At the end of each of the four calendar quarters following 
the date established under provision VI.C(2)(a)(i) of the Plan, 
Participants may commence trading an additional 500 securities, and 
at the end of the fifth calendar quarter following the date 
established under provision VI.C(2)(a)(i) of the Plan, Participants 
shall be permitted to trade all Eligible Securities.
    (iii) In no case shall the number of Eligible Securities exceed 
the number of securities that the Commission deems are eligible for 
trading pursuant to this Plan.
    (iv) After each of the aforementioned phase in periods (i.e., 
calendar quarters), the Processor shall evaluate its performance to 
determine whether it is prudent, in light of system capacity and any 
other operational factors, to continue to add additional securities 
pursuant to the phase in schedule. If the Processor determines, in 
light of system capacity and any other operational factors, that it 
is not prudent to continue to expand the number of Eligible 
Securities, the Processor upon notice to the Participants 
immediately may suspend the phase-in schedule and delay the 
expansion of the number of Eligible Securities that may be traded 
under the Plan. The Processor shall commence adding securities 
pursuant to a revised phase-in schedule, when the Processor 
determines it is prudent to do so, in light of system capacity and 
any other operational factors.
    (v) This provision shall not apply to The Nasdaq Stock Market, 
Inc., or Nasdaq market participants acting in such capacity, nor 
shall it apply to any Participant that does not engage in auto-
quoting, as described in paragraph VI.C.(2)(b) below.
    b. Limitation on Auto-Quoting--Except as provided in sub-
paragraph VI.C(2)(c) of this Plan, Participants shall be prohibited 
from the practice of ``auto-quoting.'' ``Auto-quoting'' means the 
practice of tracking, by automated means, the changes to the best 
bid or best ask quotation and responding by generating another quote 
change to keep that Participant away from the best bid or ask 
quotation, but for purposes of this Plan, shall not include:
    (i) An update that is in response to an execution in the 
security by that Participant;
    (ii) An update that requires a physical entry;
    (iii) An update that is to reflect the receipt, execution, or 
cancellation of a customer limit order; or
    (iv) The practice of automatically generating quote changes at a 
rate of less than 35% of all price changes to the national best bid 
or ask quotation. The Processor shall calculate this rate using 
quoting activity during the preceding calendar month.
    c. Applicability of Auto-Quoting Limitation--The Limitation on 
Auto-Quoting contained in subparagraph VI.C(2)(b) of this Plan shall 
only apply if the Processor deems it necessary to maintain adequate 
capacity for the normal and efficient operation of the Processor and 
the Processor provides at least 30 calendar days notice to the 
Participants and the basis thereof of such determination. The 
Processor shall lift the limitation on auto-quoting when the 
Processor determines it is prudent to do so, in light of system 
capacity and any other operational factors. Additionally, the 
Limitation on Auto-Quoting set forth in subparagraph VI.C(2)(b) of 
this Plan will not apply to a Participant whose aggregated quoting 
activity in eligible Nasdaq securities does not exceed 1% of the 
total quotation traffic across all Nasdaq securities by all Nasdaq 
market participants and Exchange Participants. The Processor shall 
calculate this rate using quoting activity during the preceding 
calendar month.
    d. Obligations of Participants Regarding Capacity--Each 
Participant shall exercise due diligence to promote quotation 
generation practices that mitigate quotation traffic so as to ensure 
prudential excess capacity within the Processor. The Operating 
Committee shall periodically review the performance of Participants 
and take such action as necessary to maintain prudential excess 
capacity.
    e. Procedures for Ensuring Acceptable Quote Generation 
Practices--The following procedures shall apply if, in accordance 
with Section VI.C.2(c) of the Plan, the Processor determines that a 
capacity concern exists.
    (i) On a monthly basis, each Participant shall provide the 
Processor with a good faith estimate of the Participant's previous 
month's daily average number of quote updates to permit the 
Processor to determine compliance with the auto-quoting limitation 
referenced in Section VI.C.2.(b) of the Plan.
    (ii) If the Processor determines, from the Participant's data or 
otherwise, that the Participant has not complied with the 
limitations of Section VI.C.2.(b), the Processor shall give the 
Participant written notice of such condition. The Participant shall 
have 30 calendar days after receipt of the written notice to remedy 
the condition.
    (iii) If, after the aforementioned 30-day period has expired, 
the condition has not been remedied to the reasonable satisfaction 
of the Processor, then the Processor shall submit to the Operating 
Committee a written request for relief together with supporting 
documentation evidencing the alleged condition (i.e., failure to 
comply with the limitations of Section VI.C.2.(b)) and quantifying 
the impact of the violation on overall capacity of the Processor. 
The Processor's request for relief shall be limited to such remedial 
action (including but not limited to the termination of service to 
the subject Participant) as is necessary to modify the subject 
Participant's quote generation practices on a prospective basis, for 
such period as is necessary to resolve the condition that gave rise 
to the Processor's request for relief. The Participant shall have 15 
calendar days to respond in writing to the Processor's request for 
relief.
    (iv) The Operating Committee, following written notice to the 
Participant and the Processor, shall conduct a hearing within five 
(5) business days after expiration of the 15-day response period to 
determine whether to grant or deny the Processor's claim for 
remedial action. At the hearing, the Operating Committee may 
consider, among other information, the request of the Processor, the 
response (if any) of the Participant and any other evidence (written 
or oral) that is presented at the hearing. At the conclusion of the 
hearing, the Operating Committee shall grant or deny the Processor's 
request. An affirmative vote of two-thirds of the Operating 
Committee members entitled to vote (excluding the subject 
Participant) shall be required for any decision of the Operating 
Committee. The decision of the Operating Committee shall be final 
and therefore reviewable by the Commission; provided, however, that 
any decision of the Operating Committee shall not become effective 
until five business days after the date of the decision.
    f. Limitation on Applicability of Rule--The phase-in schedule 
contained in of VI.C(2)(a) and the Limitation on Auto-Quoting 
contained in VI.C(2)(c) shall not apply:
    (i) To any Participant upon the designation and the operation of 
a new Processor; and
    (ii) To a Participant for the number of securities that the 
Participant quoted as of

[[Page 12513]]

May 1, 2001; provided, however the exemption contained herein shall 
expire a year from the end-date of the phase-in schedule contained 
in VI.C(2)(a).

3. Quotation Data Streams

    The Processor shall disseminate on the UTP Quote Data Feed a 
data stream of all Quotation Information regarding Eligible 
Securities received from Participants. Each quotation shall be 
designated with a symbol identifying the Participant from which the 
quotation emanates. Quotation Information from individual NASD 
Participants will not be disseminated on the UTP Quote Data Feed. 
The Processor shall separately distribute on the OTC Montage Data 
Feed the Quotation Information regarding Eligible Securities from 
all NASD Participants from which quotations emanate. The Processor 
shall separately distribute NQDS for so long as Nasdaq is not 
registered as a national securities exchange and for so long as 
Nasdaq is the Processor. For so long as Nasdaq is not registered as 
a national securities exchange and after Nasdaq is no longer the 
Processor for other SIP datafeeds, either Nasdaq or a third party 
will act as the Processor to collect, consolidate, and disseminate 
the quotation information contained in NQDS.

4. Transaction Reports

    The Processor shall disseminate on the UTP Trade Data Feed a 
data stream of all Transaction Reports in Eligible Securities 
received from Participants. Each transaction report shall be 
designated with a symbol identifying the Participant in whose Market 
the transaction took place.

D. Closing Reports

    At the conclusion of each trading day, the Processor shall 
disseminate a ``closing price'' for each Eligible Security. Such 
``closing price'' shall be the price of the last Transaction Report 
in such security received prior to dissemination. The Processor 
shall also tabulate and disseminate at the conclusion of each 
trading day the aggregate volume reflected by all Transaction 
Reports in Eligible Securities reported by the Participants.

E. Statistics

    The Processor shall maintain quarterly, semi-annual and annual 
transaction and volume statistical counts. The Processor shall, at 
cost to the user Participant(s), make such statistics available in a 
form agreed upon by the Operating Committee, such as a secure 
website.

VII. Administrative Functions of the Processor

    Subject to the general direction of the Operating Committee, the 
Processor shall be responsible for carrying out all administrative 
functions necessary to the operation and maintenance of the 
consolidated information collection and dissemination system 
provided for in this Plan, including, but not limited to, record 
keeping, billing, contract administration, and the preparation of 
financial reports.

VIII. Transmission of Information to Processor by Participants

A. Quotation Information

    Each Participant shall, during the time it is open for trading 
be responsible promptly to collect and transmit to the Processor 
accurate Quotation information in Eligible Securities through any 
means prescribed herein.
    Quotation Information shall include:
    1. Identification of the Eligible Security, using the Nasdaq 
Symbol;
    2. The price bid and offered, together with size;
    3. The Nasdaq market participant or Participant from which the 
quotation emanates;
    4. Identification of quotations that are not firm; and
    5. Through appropriate codes and messages, withdrawals and 
similar matters.

B. Transaction Reports

    Each Participant shall, during the time it is open for trading, 
be responsible promptly to collect and transmit to the Processor 
Transaction Reports in Eligible Securities executed in its Market by 
means prescribed herein. With respect to orders sent by one 
Participant Market to another Participant Market for execution, each 
Participant shall adopt procedures governing the reporting of 
transactions in Eligible Securities specifying that the transaction 
will be reported by the Participant whose member sold the security. 
This provision shall apply only to transactions between Plan 
Participants.
    Transaction Reports shall include:
    1. Identification of the Eligible Security, using the Nasdaq 
Symbol;
    2. The number of shares in the transaction;
    3. The price at which the shares were purchased or sold;
    4. The buy/sell/cross indicator;
    5. The Market of execution; and,
    6. Through appropriate codes and messages, late or out-of-
sequence trades, corrections and similar matters.
    All such Transaction Reports shall be transmitted to the 
Processor within 90 seconds after the time of execution of the 
transaction. Transaction Reports transmitted beyond the 90-second 
period shall be designated as ``late'' by the appropriate code or 
message.
    The following types of transactions are not required to be 
reported to the Processor pursuant to the Plan:
    1. Transactions that are part of a primary distribution by an 
issuer or of a registered secondary distribution or of an 
unregistered secondary distribution;
    2. Transactions made in reliance on Section 4(2) of the 
Securities Act of 1933;
    3. Transactions in which the buyer and the seller have agreed to 
trade at a price unrelated to the Current Market for the security, 
e.g., to enable the seller to make a gift;
    4. Odd-lot transactions;
    5. The acquisition of securities by a broker-dealer as principal 
in anticipation of making an immediate exchange distribution or 
exchange offering on an exchange;
    6. Purchases of securities pursuant to a tender offer; and
    7. Purchases or sales of securities effected upon the exercise 
of an option pursuant to the terms thereof or the exercise of any 
other right to acquire securities at a pre-established consideration 
unrelated to the Current Market.

C. Symbols for Market Identification for Quotation Information and 
Transaction Reports

    The following symbols shall be used to denote the marketplaces:

------------------------------------------------------------------------
              Code                             Participant
------------------------------------------------------------------------
A..............................  American Stock Exchange.
B..............................  Boston Stock Exchange.
W..............................  Chicago Board Options Exchange, Inc.
C..............................  Cincinnati Stock Exchange.
M..............................  Chicago Stock Exchange.
D..............................  NASD.
Q..............................  Nasdaq.
C..............................  National Stock Exchange.
N..............................  New York Stock Exchange, Inc.
P..............................  Pacific Exchange.
X..............................  Philadelphia Stock Exchange.
------------------------------------------------------------------------

    D. Whenever a Participant determines that a level of trading 
activity or other unusual market conditions prevent it from 
collecting and transmitting Quotation Information or Transaction 
Reports to the Processor, or where a trading halt or suspension in 
an Eligible Security is in effect in its Market, the Participant 
shall promptly notify the Processor of such condition or event and 
shall resume collecting and transmitting Quotation Information and 
Transaction Reports to it as soon as the condition or event is 
terminated. In the event of a system malfunction resulting in the 
inability of a Participant or its members to transmit Quotation 
Information or Transaction Reports to the Processor, the Participant 
shall promptly notify the Processor of such event or condition. Upon 
receiving such notification, the Processor shall take appropriate 
action, including either closing the quotation or purging the system 
of the affected quotations.

IX. Market Access

    A. Each Participant shall permit each Nasdaq market participant, 
acting in its capacity as such, direct telephone access to the 
specialist, trading post, and supervisory center in each Eligible 
Security in which such Nasdaq market participant is registered as a 
market maker or electronic communications network/alternative 
trading system with Nasdaq. Such access shall include appropriate 
procedures or requirements by each Participant or employee to assure 
the timely response to communications received through telephonic 
access. No Participant shall permit the imposition of any access or 
execution fee, or any other fee or charge, with respect to 
transactions in Eligible Securities effected with Nasdaq market 
participants which are communicated to the floor by telephone 
pursuant to the provisions of this Plan. A Participant shall be free 
to charge for other types of access to its floor or facilities.
    B. The NASD shall assure that each Participant, and its members 
shall have

[[Page 12514]]

direct telephone access to the trading desk of each Nasdaq market 
participant in each Eligible Security in which the Participant 
displays quotations, and to the Nasdaq Supervisory Center. Such 
access shall include appropriate procedures or requirements to 
assure the timely response of each Nasdaq market participant to 
communications received through telephone access. Neither the NASD 
nor any Nasdaq market participant shall impose any access or 
execution fee, or any other fee or charge, with respect to 
transactions in Eligible Securities effected with a member of a 
Participant which are communicated by telephone pursuant to the 
provisions of this Plan.

X. Regulatory Halts

    A. For purposes of this Section X, ``Participant'' shall include 
the Nasdaq Stock Market. Whenever, in the exercise of its regulatory 
functions, the Listing Market for an Eligible Security determines 
that a Regulatory Halt is appropriate pursuant to Section III.T, the 
Listing Market will notify all other Participants pursuant to 
Section X.E and all other Participants shall also halt or suspend 
trading in that security until notification that the halt or 
suspension is no longer in effect. The Listing Market shall 
immediately notify the Processor of such Regulatory Halt as well as 
notice of the lifting of a Regulatory Halt. The Processor, in turn, 
shall disseminate to Participants notice of the Regulatory Halt (as 
well as notice of the lifting of a regulatory halt) through the UTP 
Quote Data Feed. This notice shall serve as official notice of a 
regulatory halt for purposes of the Plan only, and shall not 
substitute or otherwise supplant notice that a Participant may 
recognize or require under its own rules. Nothing in this provision 
shall be read so as to supplant or be inconsistent with a 
Participant's own rules on trade halts, which rules apply to the 
Participant's own members. The Processor will reject any quotation 
information or transaction reports received from any Participant on 
an Eligible Security that has a Regulatory Halt in effect.
    B. Whenever the Listing Market determines that an adequate 
publication or dissemination of information has occurred so as to 
permit the termination of the Regulatory Halt then in effect, the 
Listing Market shall promptly notify the Processor and each of the 
other Participants that conducts trading in such security pursuant 
to Section X.F. Except in extraordinary circumstances, adequate 
publication or dissemination shall be presumed by the Listing Market 
to have occurred upon the expiration of one hour after initial 
publication in a national news dissemination service of the 
information that gave rise to the Regulatory Halt.
    C. Except in the case of a Regulatory Halt, the Processor shall 
not cease the dissemination of quotation or transaction information 
regarding any Eligible Security. In particular, it shall not cease 
dissemination of such information because of a delayed opening, 
imbalance of orders or other market-related problems involving such 
security. During a regulatory halt, the Processor shall collect and 
disseminate Transaction Information but shall cease collection and 
dissemination of all Quotation Information.
    D. For purposes of this Section X, ``Listing Market'' for an 
Eligible Security means the Participant's Market on which the 
Eligible Security is listed. If an Eligible Security is dually 
listed, Listing Market shall mean the Participant's Market on which 
the Eligible Security is listed that also has the highest number of 
the average of the reported transactions and reported share volume 
for the preceding 12-month period. The Listing Market for dually-
listed Eligible Securities shall be determined at the beginning of 
each calendar quarter.
    E. For purposes of coordinating trading halts in Eligible 
Securities, all Participants are required to utilize the national 
market system communication media (``Hoot-n-Holler'') to verbally 
provide real-time information to all Participants. Each Participant 
shall be required to continuously monitor the Hoot-n-Holler system 
during market hours, and the failure of a Participant to do so at 
any time shall not prevent the Listing Market from initiating a 
Regulatory Halt in accordance with the procedures specified herein.
    1. The following procedures shall be followed when one or more 
Participants experiences extraordinary market activity in an 
Eligible Security that is believed to be caused by the misuse or 
malfunction of systems operated by or linked to one or more 
Participants.
    a. The Participant(s) experiencing the extraordinary market 
activity or any Participant that becomes aware of extraordinary 
market activity will immediately use best efforts to notify all 
Participants of the extraordinary market activity utilizing the 
Hoot-n-Holler system.
    b. The Listing Market will use best efforts to determine whether 
there is material news regarding the Eligible Security. If the 
Listing Market determines that there is non-disclosed material news, 
it will immediately call a Regulatory Halt pursuant to Section 
X.E.2.
    c. Each Participant(s) will use best efforts to determine 
whether one of its systems, or the system of a direct or indirect 
participant in its market, is responsible for the extraordinary 
market activity.
    d. If a Participant determines the potential source of 
extraordinary market activity pursuant to Section X.1.c., the 
Participant will use best efforts to determine whether removing the 
quotations of one or more direct or indirect market participants or 
barring one or more direct or indirect market participants from 
entering orders will resolve the extraordinary market activity. 
Accordingly, the Participant will prevent the quotations from one or 
more direct or indirect market participants in the affected Eligible 
Securities from being transmitted to the Processor.
    e. If the procedures described in Section X.E.1.a.-d. do not 
rectify the situation, the Participant(s) experiencing extraordinary 
market activity will cease transmitting all quotations in the 
affected Eligible Securities to the Processor.
    f. If the procedures described in Section X.E.1.a-e do not 
rectify the situation within five minutes of the first notification 
through the Hoot-n-Holler system, or if Participants agree to call a 
halt sooner through unanimous approval among those Participants 
actively trading impacted Eligible Securities, the Listing Market 
may determine based on the facts and circumstances, including 
available input from Participants, to declare an Extraordinary 
Market Regulatory Halt in the affected Eligible Securities. 
Simultaneously with the notification of the Processor to suspend the 
dissemination of quotations across all Participants, the Listing 
Market must verbally notify all Participants of the trading halt 
utilizing the Hoot-n-Holler system.
    g. Absent any evidence of system misuse or malfunction, best 
efforts will be used to ensure that trading is not halted across all 
Participants.
    2. If the Listing Market declares a Regulatory Halt in 
circumstances other than pursuant to Section X.E.1.f., the Listing 
Market must, simultaneously with the notification of the Processor 
to suspend the dissemination of quotations across all Participants, 
verbally notify all Participants of the trading halt utilizing the 
Hoot-n-Holler system.
    F. If the Listing Market declares a Regulatory Halt, trading 
will resume according to the following procedures:
    1. Within 15 minutes of the declaration of the halt, all 
Participants will make best efforts to indicate via the Hoot-n-
Holler their intentions with respect to canceling or modifying 
transactions.
    2. All Participants will disseminate to their members 
information regarding the canceled or modified transactions as 
promptly as possible, and in any event prior to the resumption of 
trading.
    3. After all Participants have met the requirements of Section 
X.F.1-2, the Listing Market will notify the Participants utilizing 
the Hoot-n-Holler and the Processor when trading may resume. Upon 
receiving this information, Participants may commence trading 
pursuant to Section X.A.

XI. Hours of Operation

    A. Quotation Information may be entered by Participants as to 
all Eligible Securities in which they make a market between 9:30 
a.m. and 4 p.m. Eastern Time (``ET'') on all days the Processor is 
in operation. Transaction Reports shall be entered between 9:30 a.m. 
and 4:01:30 p.m. ET by Participants as to all Eligible Securities in 
which they execute transactions between 9:30 a.m. and 4 p.m. ET on 
all days the Processor is in operation.
    B. Participants that execute transactions in Eligible Securities 
outside the hours of 9:30 a.m. ET and 4 p.m., ET, shall be required 
to report such transactions as follows:
    (i) Transactions in Eligible Securities executed between 4 a.m. 
and 9:29:59 a.m. ET and between 4:00:01 and 6:30 p.m. ET, shall be 
designated as ``.T'' trades to denote their execution outside normal 
market hours;
    (ii) Transactions in Eligible Securities executed after 6:30 
p.m. and before 12 a.m. (midnight) shall be reported to the 
Processor between the hours of 4 a.m. and 6:30 p.m. ET on the next 
business day (T+1), and shall be designated ``as/of'' trades to 
denote their execution on a prior day, and be accompanied by the 
time of execution;

[[Page 12515]]

    (iii) Transactions in Eligible Securities executed between 12 
a.m. (midnight) and 4 a.m. ET shall be transmitted to the Processor 
between 4 a.m. and 9:30 a.m. ET, on trade date, shall be designated 
as ``.T'' trades to denote their execution outside normal market 
hours, and shall be accompanied by the time of execution;
    (iv) Transactions reported pursuant to this provision of the 
Plan shall be included in the calculation of total trade volume for 
purposes of determining net distributable operating revenue, but 
shall not be included in the calculation of the daily high, low, or 
last sale.
    C. Late trades shall be reported in accordance with the rules of 
the Participant in whose Market the transaction occurred and can be 
reported between the hours of 4 a.m. and 6:30 p.m.
    D. The Processor shall collect, process and disseminate 
Quotation Information in Eligible Securities at other times between 
4 a.m. and 9:30 a.m. ET, and after 4 p.m. ET, when any Participant 
or Nasdaq market participant is open for trading, until 6:30 p.m. ET 
(the ``Additional Period''); provided, however, that the best bid 
and offer quotation will not be disseminated before 4 a.m. or after 
6:30 p.m. ET. Participants that enter Quotation Information or 
submit Transaction Reports to the Processor during the Additional 
Period shall do so for all Eligible Securities in which they enter 
quotations.

XII. Undertaking by All Participants

    The filing with and approval by the Commission of this Plan 
shall obligate each Participant to enforce compliance by its members 
with the provisions thereof. In all other respects not inconsistent 
herewith, the rules of each Participant shall apply to the actions 
of its members in effecting, reporting, honoring and settling 
transactions executed through its facilities, and the entry, 
maintenance and firmness of quotations to ensure that such occurs in 
a manner consistent with just and equitable principles of trade.

XIII. Financial Matters

A. Development Costs

    Any Participant becoming a signatory to this Plan after June 26, 
1990, shall, as a condition to becoming a Participant, pay to the 
other Plan Participants a proportionate share of the aggregate 
development costs previously paid by Plan Participants to the 
Processor, which aggregate development costs totaled $439,530, with 
the result that each Participant's share of all development costs is 
the same.
    Each Participant shall bear the cost of implementation of any 
technical enhancements to the Nasdaq system made at its request and 
solely for its use, subject to reapportionment should any other 
Participant subsequently make use of the enhancement, or the 
development thereof.

B. Cost Allocation and Revenue Sharing

    The provisions governing cost allocation and revenue sharing 
among the Participants are set forth in Exhibit 1 to the Plan.

C. Maintenance of Financial Records

    The Processor shall maintain records of revenues generated and 
development and operating expenditures incurred in connection with 
the Plan. In addition, the Processor shall provide the Participants 
with: (a) a statement of financial and operational condition on a 
quarterly basis; and (b) an audited statement of financial and 
operational condition on an annual basis.

XIV. Indemnification

    Each Participant agrees, severally and not jointly, to indemnify 
and hold harmless each other Participant, Nasdaq, and each of its 
directors, officers, employees and agents (including the Operating 
Committee and its employees and agents) from and against any and all 
loss, liability, claim, damage and expense whatsoever incurred or 
threatened against such persons as a result of any Transaction 
Reports, Quotation Information or other information reported to the 
Processor by such Participant and disseminated by the Processor to 
Vendors. This indemnity agreement shall be in addition to any 
liability that the indemnifying Participant may otherwise have.
    Promptly after receipt by an indemnified Participant of notice 
of the commencement of any action, such indemnified Participant 
will, if a claim in respect thereof is to be made against an 
indemnifying Participant, notify the indemnifying Participant in 
writing of the commencement thereof; but the omission to so notify 
the indemnifying Participant will not relieve the indemnifying 
Participant from any liability which it may have to any indemnified 
Participant. In case any such action is brought against any 
indemnified Participant and it promptly notifies an indemnifying 
Participant of the commencement thereof, the indemnifying 
Participant will be entitled to participate in, and, to the extent 
that it may wish, jointly with any other indemnifying Participant 
similarly notified, to assume and control the defense thereof with 
counsel chosen by it. After notice from the indemnifying Participant 
of its election to assume the defense thereof, the indemnifying 
Participant will not be liable to such indemnified Participant for 
any legal or other expenses subsequently incurred by such 
indemnified Participant in connection with the defense thereof but 
the indemnified Participant may, at its own expense, participate in 
such defense by counsel chosen by it without, however, impairing the 
indemnifying Participant's control of the defense. The indemnifying 
Participant may negotiate a compromise or settlement of any such 
action, provided that such compromise or settlement does not require 
a contribution by the indemnified Participant.

XV. Withdrawal

    Any Participant may withdraw from the Plan at any time on not 
less than 30 days prior written notice to each of the other 
Participants. Any Participant withdrawing from the Plan shall remain 
liable for, and shall pay upon demand, any fees for equipment or 
services being provided to such Participant pursuant to the contract 
executed by it or an agreement or schedule of fees covering such 
then in effect.
    A withdrawing Participant shall also remain liable for its 
proportionate share, without any right of recovery, of 
administrative and operating expenses, including start-up costs and 
other sums for which it may be responsible pursuant to Section XIV 
hereof. Except as aforesaid, a withdrawing Participant shall have no 
further obligation under the Plan or to any of the other 
Participants with respect to the period following the effectiveness 
of its withdrawal.

XVI. Modifications to Plan

    The Plan may be modified from time to time when authorized by 
the agreement of all of the Participants, subject to the approval of 
the SEC.

XVII. Applicability of Securities Exchange Act of 1934

    The rights and obligations of the Participants and of Vendors, 
News Services, Subscribers and other persons contracting with 
Participant in respect of the matters covered by the Plan shall at 
all times be subject to any applicable provisions of the Act, as 
amended, and any rules and regulations promulgated thereunder.

XVIII. Operational Issues

    A. Each Exchange Participant shall be responsible for collecting 
and validating quotes and last sale reports within their own system 
prior to transmitting this data to the Processor.
    B. Each Exchange Participant may utilize a dedicated Participant 
line into the Processor to transmit trade and quote information in 
Eligible Securities to the Processor. The Processor shall accept 
from Exchange Participants input for only those issues that are 
deemed Eligible Securities.
    C. The Processor shall consolidate trade and quote information 
from each Participant and disseminate this information on the Nasdaq 
existing vendor lines.
    D. The Processor shall perform gross validation processing for 
quotes and last sale messages in addition to the collection and 
dissemination functions, as follows:
    1. Basic Message Validation
    (a) The Processor may validate format for each type of message, 
and reject non-conforming messages.
    (b) Input must be for an Eligible Security.
    2. Logging Function--The Processor shall return all Participant 
input messages that do not pass the validation checks (described 
above) to the inputting Participant, on the entering Participant 
line, with an appropriate reject notation. For all accepted 
Participant input messages (i.e., those that pass the validation 
check), the information shall be retained in the Processor system.

XIX. Headings

    The section and other headings contained in this Plan are for 
reference purposes only and shall not be deemed to be a part of this 
Plan or to affect the meaning or interpretation of any provisions of 
this Plan.

XX. Counterparts

    This Plan may be executed by the Participants in any number of 
counterparts, no one of which need contain the signature of all 
Participants. As many such counterparts as shall together contain 
all

[[Page 12516]]

such signatures shall constitute one and the same instrument.

XXI. Depth of Book Display

    The Operating Committee has determined that the entity that 
succeeds Nasdaq as the Processor should have the ability to collect, 
consolidate, and disseminate quotations at multiple price levels 
beyond the best bid and best offer from any Participant that 
voluntarily chooses to submit such quotations while determining that 
no Participant shall be required to submit such information. The 
Operating Committee has further determined that the costs of 
developing, collecting, processing, and disseminating such depth of 
book data shall be borne exclusively by those Participants that 
choose to submit this information to the Processor, by whatever 
allocation those Participants may choose among themselves. The 
Operating Committee has determined further that the primary purpose 
of the Processor is the collection, processing and dissemination of 
best bid, best offer and last sale information (``core data''), and 
as such, the Participants will adopt procedures to ensure that such 
functionality in no way hinders the collecting, processing and 
dissemination of this core data.
    Therefore, implementing the depth of book display functionality 
will require a plan amendment that addresses all pertinent issues, 
including:
    (1) Procedures for ensuring that the fully-loaded cost of the 
collection, processing, and dissemination of depth-of-book 
information will be tracked and invoiced directly to those Plan 
Participants that voluntarily choose to send that data, voluntarily, 
to the Processor, allocating in whatever manner those Participants 
might agree; and
    (2) Necessary safeguards the Processor will take to ensure that 
its processing of depth-of-book data will not impede or hamper, in 
any way, its core Processor functionality of collecting, 
consolidating, and disseminating National Best Bid and Offer data, 
exchange best bid and offer data, and consolidated last sale data.
    Upon approval of a Plan amendment implementing depth of book 
display, this article of the Plan shall be automatically deleted.

    IN WITNESS WHEREOF, this Plan has been executed as of the ---- 
day of ----, 200--, by each of the Signatories hereto.

American Stock Exchange LLC

 By:-------------------------------------------------------------------

Boston Stock Exchange, Inc.

 By:-------------------------------------------------------------------

Chicago Stock Exchange, Inc.

 By:-------------------------------------------------------------------

Chicago Board Options Exchange, Inc.

 By:-------------------------------------------------------------------

National Association of Securities Dealers, Inc.

 By:-------------------------------------------------------------------

National Stock Exchange

 By:-------------------------------------------------------------------

New York Stock Exchange, Inc.

 By:-------------------------------------------------------------------

Pacific Exchange, Inc.

 By:-------------------------------------------------------------------

Philadelphia Stock Exchange, Inc.

 By:-------------------------------------------------------------------

Exhibit 1

    1. Each Participant eligible to receive revenue under the Plan 
will receive an annual payment for each calendar year to be 
determined by multiplying (i) that Participant's percentage of total 
volume in Nasdaq securities reported to the Processor and 
disseminated to Vendors for that calendar year by (ii) the total 
distributable net operating income (as defined below) for that 
calendar year provided, however, that for the implementation year 
(as defined in Paragraph 4 below), a Participant's payment shall be 
multiplied by the number of months during the implementation year 
the interface was in operation divided by twelve. In the event that 
total distributable net operating income is negative, each 
Participant eligible to receive revenue under the Plan will receive 
an annual bill for each calendar year to be determined according to 
the same formula (described in this paragraph) for determining 
annual payments to eligible Participants.
    2. A Participant's percentage of total volume in Nasdaq 
securities will be calculated by taking the average of (i) the 
Participant's percentage of total trades in Nasdaq securities 
reported to the Processor and disseminated to Vendors for the year 
and (ii) the Participant's percentage of total share volume in 
Nasdaq securities reported to the Processor and disseminated to 
Vendors for the year (trade/volume average). For any given year, a 
Participant's percentage of total trades shall be calculated by 
dividing the total number of trades that that Participant reports to 
the Processor as the selling party for that year by the total number 
of trades in Nasdaq securities reported to the Processor and 
disseminated to Vendors for the year. A Participant's total share 
volume shall be calculated by multiplying the total number of trades 
in Nasdaq securities in that year that that Participant reports to 
the Processor as the selling party multiplied by the number of 
shares for each such trade. Unless otherwise stated in this 
agreement, a year shall run from January 1 to December 31.
    3. For purposes of this Exhibit 1, net distributable operating 
income for any particular calendar year shall be calculated by 
adding all revenues from the UTP Quote Data Feed, the UTP Trade Data 
Feed, the OTC Montage Data Feed, and NQDS, including revenues from 
the dissemination of information among Eligible Securities to 
foreign marketplaces (collectively, ``the Data Feeds''), and 
subtracting from such revenues the costs incurred by the Processor, 
set forth below, in collecting, consolidating, validating, 
generating, and disseminating the Data Feeds. These costs include, 
but are not limited to, the following:
    a. The Processor costs directly attributable to creating OTC 
Montage Data Feed and NQDS, including:
    1. Cost of collecting Participant quotes into the Processor's 
quote engine;
    2. Cost of processing quotes and creating OTC Montage Data Feed 
and NQDS messages within the Processor's quote engine;
    3. Cost of the Processor's communication management subsystem 
that distributes OTC Montage Data Feed and NQDS to the market data 
vendor network for further distribution.
    b. The costs directly attributable to creating the UTP Quote 
Data Feed, including:
    1. Cost of calculating the national best bid and offer price 
within the Processor's quote engine;
    2. Cost of creating the UTP Quote Data Feed message within the 
Processor's quote engine;
    3. Cost of the Processor's communication management subsystem 
that distributes the UTP Quote Data Feed to the market data vendors' 
networks for further distribution.
    c. The costs directly attributable to creating the UTP Trade 
Data Feed, including:
    1. Cost of determining the appropriate last sale price and 
volume amount within the Processor's trade engine;
    2. Cost of utilizing the Processor's trade engine to distribute 
the UTP Trade Data Feed for distribution to the market data vendors.
    d. The additional costs that are shared across all Data Feeds, 
including:
    1. Telecommunication Operations costs of supporting the 
Participant lines into the Processor's facilities;
    2. Telecommunications Operations costs of supporting the 
external market data vendor network;
    3. Data Products account management and auditing function with 
the market data vendors;
    4. Market Operations costs to support symbol maintenance, and 
other data integrity issues;
    5. Overhead costs, including management support of the 
Processor, Human Resources, Finance, Legal, and Administrative 
Services.
    e. Processor costs excluded from the calculation of net 
distributable operating income include trade execution costs for 
transactions executed using a Nasdaq service and trade report 
collection costs reported through a Nasdaq service, as such services 
are market functions for which Participants electing to use such 
services pay market rate.
    f. For the purposes of this provision, the following definitions 
shall apply:
    1. ``Quote engine'' shall mean the Nasdaq's UNISYS system that 
is operated by Nasdaq to collect quotation information for Eligible 
Securities;
    2. ``Trade engine'' shall mean the Nasdaq Tandem system that is 
operated by Nasdaq for the purpose of collecting last sale 
information in Eligible Securities.
    4. At the time a Participant implements a computer-to-computer-
interface or other Processor-approved electronic interface with the 
Processor, the Participant will become eligible to receive revenue 
for the year in which the interface is implemented (implementation 
year).
    5. From the date a Participant is eligible to receive revenue 
(implementation date) until December 31 of the implementation year, 
Nasdaq shall pay the Participant a pro rata amount of its payment or 
bill the Participant for a pro rata amount of its losses for the 
implementation year (as calculated in

[[Page 12517]]

Paragraph 1 above). This calculation and resultant payment (or bill) 
will be made (or due) within ninety (90) days after the twelfth 
month following the implementation date.
    For the calendar year subsequent to the implementation year, and 
continuing thereafter, the calculation of the Participant's annual 
payment or loss will be performed and the payment made or bill 
delivered by March 31 of the following year. Estimated quarterly 
payments or billings shall be made to each eligible Participant 
within 45 days following the end of each calendar quarter in which 
the Participant is eligible to receive revenue, provided that the 
total of such estimated payments or billings shall be reconciled at 
the end of each calendar year and, if necessary, adjusted by March 
31st of the following year. Interest shall be included in quarterly 
payments and in adjusted payments made on March 31st of the 
following year. Such interest shall accrue monthly during the period 
in which revenue was earned and not yet paid and will be based on 
the 90-day Treasury bill rate in effect at the end of the quarter in 
which the payment is made. Interest shall not accrue during the 
period of up to 45 days between the end of each calendar quarter and 
the date on which an estimated quarterly payment or billing is made.
    In conjunction with calculating estimated quarterly and 
reconciled annual payments under this Exhibit 1, the Processor shall 
submit to the Participants an itemized statement setting forth the 
basis upon which net operating income was calculated, including an 
itemized statement of the Processor costs set forth in Paragraph 3 
of this Exhibit. Such Processor costs shall be reconciled annually 
based solely on the Processor's audited annual financial 
information. By majority vote of the Operating Committee, the 
Processor shall engage an independent auditor to audit the 
Processor's costs or other calculation(s), the cost of which audit 
shall be shared equally by all Participants. The Processor agrees to 
cooperate fully in providing the information necessary to complete 
such audit.

[FR Doc. 05-4946 Filed 3-11-05; 8:45 am]
BILLING CODE 8010-01-P