[Federal Register Volume 71, Number 181 (Tuesday, September 19, 2006)]
[Notices]
[Pages 54852-54862]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-15515]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-54426; File No. S7-24-89]


Joint Industry Plan; Notice of Filing and Effectiveness of 
Amendment No. 17 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 
American Stock Exchange LLC, the Boston Stock Exchange, Inc., the 
Chicago Stock Exchange, Inc., the Chicago Board Options Exchange, 
Incorporated, the International Securities Exchange, Inc., the National 
Association of Securities Dealers, Inc., the National Stock Exchange, 
Inc., the NASDAQ Stock Market LLC, NYSE Arca, Inc., and the 
Philadelphia Stock Exchange, Inc.

September 12, 2006.

I. Introduction and Description

    Pursuant to Rule 608 of the Securities Exchange Act of 1934 (the 
``Act'') \1\ notice is hereby given that on August 21, 2006, the 
operating committee (``Operating Committee'' or ``Committee'') \2\ of 
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'') 
filed with the Securities and Exchange Commission (``Commission'') 
amendments to the Plan. These amendments represent Amendment 17 made to 
the Plan and reflect: Changing the Pacific Exchange's name to NYSE 
Arca, Inc.; expanding the Processor hours of operation from 6:30 p.m. 
to 8 p.m.; modifying the definition of Eligible Security to bring it 
into conformance with recent changes to Nasdaq Stock Market listing 
rules; and making other minor administrative changes. Amendment 17 was 
unanimously approved by the Committee on July 20, 2006.\3\ The 
Commission is publishing this notice of filing and effectiveness to 
solicit comments from interested persons on Amendment No. 17.
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    \1\ 17 CFR 242.608.
    \2\ The Plan Participants (collectively, ``Participants'') are: 
The American Stock Exchange LLC (``Amex''), the Boston Stock 
Exchange, Inc. (``BSE''), the Chicago Stock Exchange, Inc. 
(``CHX''), the Chicago Board Options Exchange, Incorporated 
(``CBOE''), the International Securities Exchange, Inc. (``ISE''), 
the National Association of Securities Dealers, Inc. (``NASD''), the 
National Stock Exchange, Inc. (``NSX''), The NASDAQ Stock Market LLC 
(``Nasdaq''), NYSE Arca, Inc. (``NYSEArca''), and the Philadelphia 
Stock Exchange, Inc. (``Phlx'').
    \3\ See letter from Bridget M. Farrell, Chairman, OTC/UTP 
Operating Committee, to Nancy M. Morris, Secretary, Commission, 
dated August 18, 2006.
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 II. Background

    The Plan governs the collection, consolidation, and dissemination 
of quotation and transaction information for the Nasdaq Global Market 
and Nasdaq Capital Market securities listed on Nasdaq or traded on an 
exchange pursuant to unlisted trading privileges (``UTP'').\4\ 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.\5\
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    \4\ 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 an exchange to extend UTP to any 
security that is listed and registered on a national securities 
exchange. Nasdaq began operating as a national securities exchange 
for Nasdaq-listed securities on August 1, 2006, see Securities 
Exchange Act Release No. 54241 (July 31, 2006), 71 FR 45359 (August 
8, 2006).
    \5\ The Plan defines ``Eligible Securities'' as any Nasdaq 
Global Market or Nasdaq Capital Market security, as defined in 
NASDAQ Rule 4200.
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    The Commission originally approved the Plan on a pilot basis on 
June 26, 1990.\6\ The parties did not begin trading until July 12, 
1993; accordingly, the pilot period commenced on July 12, 1993. The 
pilot approval of the Plan was most recently extended on December 5, 
2005.\7\
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    \6\ See Securities Exchange Act Release No. 28146, 55 FR 27917 
(July 6, 1990).
    \7\ See Securities Exchange Act Release No. 52886, 70 FR 74059 
(December 14, 2005).
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III. Description and Purpose of the Amendment \8\
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    \8\ The complete text of the Plan, as amended by Amendment No. 
17, is attached as Exhibit A.
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    The following is a summary of the changes to the Plan prepared by 
the Participants:
    (i) Section I.A. of the Plan provides for the list of Plan 
Participants, and Section VIII.C. of the Plan provides symbols for 
market identification for quotation information and transaction 
reports. Amendment 17 eliminates the Pacific Exchange as a Plan 
Participant and replaces it with NYSE Arca, Inc. Amendment 17 also 
makes minor technical changes to the names of the National Stock 
Exchange and the Nasdaq Stock Market.
    (ii) Section III.B. defines ``Eligible Security,'' and Section 
III.L. defines ``Nasdaq Security'' and ``Nasdaq-listed Security.'' 
Amendment 17 amends the definitions to conform with Nasdaq Stock Market 
listing rules. This includes changing Nasdaq National Market to Nasdaq 
Global Market securities and Nasdaq Small Cap to Nasdaq Capital Market 
securities.
    (iii) Section III.I defines the ``UTP Quote Data Feed,'' and 
Section VI.C. provides for the dissemination of information by the 
Processor. Amendment 17 makes changes to reflect that the NASD 
Participant representing NASD's best bid/offer will be added to the UTP 
Quote Data Feed.
    (iv) Section XI provides for the hours of operation. Amendment 17 
changes the Processor hours from 6:30 p.m. to 8 p.m.
    (v) Amendment 17 modifies Exhibit 1 to the Plan to reflect that the 
costs of identifying the NASD Participant(s) that constitute NASD's 
Best Bid and Offer quotation will be part of the costs directly 
attributable to creating the UTP Quote Data Feed.
    (vi) Amendment 17 also makes minor administrative changes to the 
Plan such as incorporating references to Regulation NMS rules and 
correcting numbering.

IV. Date of Effectiveness of the Amendment

    The changes set forth in Amendment No. 17 have been designated by 
the Participants as concerned solely with the administration of the 
plan or involving solely technical or ministerial matters, and thus are 
being put into effect upon filing with the Commission pursuant to Rules 
608(b)(3)(ii) and 608(b)(3)(iii).\9\ At any time within 60 days of the 
filing of any such amendment, the Commission may

[[Page 54853]]

summarily abrogate the amendment and require that the amendment be 
refiled in accordance with paragraph (a)(1) of Rule 608 under the Act 
\10\ and reviewed in accordance with paragraph (b)(2) of Rule 608 under 
the Act,\11\ 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.\12\
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    \9\ 17 CFR 242.608(b)(3)(ii) and (b)(3)(iii).
    \10\ 17 CFR 242.608(a)(1).
    \11\ 17 CFR 242.608(b)(2).
    \12\ 17 CFR 242.608(b)(3)(iii).
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V. Solicitation of Comments

    The Commission seeks general comments on Amendment No. 17. 
Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the proposal 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 Nancy M. Morris, 
Secretary, Securities and Exchange Commission, 100 F Street, NE., 
Washington, DC 20549-1090.

All submissions should refer to File Number 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 written statements with respect to the 
proposed Plan amendment that are filed with the Commission, and all 
written communications relating to the proposed 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. Copies of the filing also will be available for 
inspection and copying at the Office of the Secretary of the Committee, 
currently located at NYSE Arca, Inc., 100 South Wacker Drive, Suite 
1800, 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 Number 
S7-24-89 and should be submitted on or before October 10, 2006.

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\13\
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    \13\ 17 CFR 200.30-3(a)(27).
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Nancy M. Morris,
Secretary.

Exhibit A--Amendment No. 17; 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. International Securities Exchange, Inc., 60 Broad Street, New 
York, New York 10004.
    6. National Association of Securities, Dealers, Inc., 1735 K 
Street, NW., Washington, DC 20006.
    7. National Stock Exchange, Inc., 440 South LaSalle Street, 26th 
Floor, Chicago, Illinois 60605.
    8. NYSE Arca, Inc., 100 South Wacker Drive, Suite 1800, Chicago, IL 
60606.
    9. Philadelphia Stock Exchange, 1900 Market Street, Philadelphia, 
Pennsylvania 19103.
    10. The Nasdaq Stock Market LLC, 1 Liberty Plaza, 165 Broadway, New 
York, NY 10006.
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 Global Market or Nasdaq 
Capital Market security, as defined in NASDAQ Rule 4200. Eligible 
Securities under this Nasdaq UTP Plan shall not include any security 
that is defined as an ``Eligible Security'' within Section VII of the 
Consolidated Tape Association Plan.
    A security shall cease to be an Eligible Security for purposes of 
this Plan if: (i) The security does not substantially meet the 
requirements from time to time in effect for continued listing on 
Nasdaq, and thus is suspended from trading; or (ii) the security has 
been suspended from trading because the issuer thereof is in 
liquidation, bankruptcy or other similar type proceedings. The 
determination as to whether a security substantially meets the criteria 
of the definition of Eligible Security shall be made by the exchange on 
which such security is listed provided, however, that if such security 
is listed on more than one exchange, then such determination shall be 
made by the exchange on which, the greatest number of the transactions 
in such security were effected during the previous twelve-month period.
    C. ``Commission'' and ``SEC'' shall mean the U.S. Securities and 
Exchange Commission.

[[Page 54854]]

    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 an NASD Participant, 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 is 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. ``Transaction Reporting System'' means the System provided for 
in the Transaction Reporting Plan filed with and approved by the 
Commission pursuant to SEC Rule11Aa3-1, subsequently re-designated as 
Rule 601 of Regulation NMS, 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 and, in the case of NASD, the NASD Participant(s) 
that constitute NASD's Best Bid and Offer quotations.
    J. ``Nasdaq System'' means the automated quotation system operated 
by Nasdaq.
    K. ``UTP Trade Data Feed'' means the service that provides Vendors 
and Subscribers with Transaction Reports.
    L. ``Nasdaq Security'' or ``Nasdaq-listed Security'' means any 
security listed on the Nasdaq Global Market or Nasdaq Capital Market.
    M. ``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.
    N. ``OTC Montage Data Feed'' means the data stream of information 
that provides Vendors and Subscribers with quotations and sizes from 
each NASD Participant.
    O. ``Participant'' means a registered national securities exchange 
or national securities association that is a signatory to this Plan.
    P. ``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.
    Q. ``Processor'' means the entity selected by the Participants to 
perform the processing functions set forth in the Plan.
    R. ``Quotation Information'' means all bids, offers, displayed 
quotation sizes, the market center identifiers and, in the case of 
NASD, the NASD 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.
    S. ``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'').
    T. ``Subscriber'' means a person that receives Current Quotation 
Information or Transaction Reports provided by the Processor or 
provided by a Vendor, for its own use or for distribution on a non-
Current basis, other than in connection with its activities as a 
Vendor.
    U. ``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.
    V. ``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.
    W. ``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.

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 608 of Regulation NMS 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

[[Page 54855]]

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 Rules 601 and 602 of 
Regulation NMS; 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 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
    (a) Formation. Notwithstanding any other provision of this Plan, an 
Advisory Committee to the Plan shall be formed and shall function in 
accordance with the provisions set forth in this section.
    (b) Composition. Members of the Advisory Committee shall be 
selected for two-year terms as follows:
    (1) Operating Committee Selections. By affirmative vote of a 
majority of the Participants entitled to vote, the Operating Committee 
shall select at least one representative from each of the following 
categories to be members of the Advisory Committee: (i) A broker-dealer 
with a substantial retail investor customer base, (ii) a broker-dealer 
with a substantial institutional investor customer base, (iii) an 
alternative trade system, (iv) a data vendor, and (v) an investor.
    (2) Participant Selections. Each Participant shall have the right 
to select one member of the Advisory Committee. A Participant shall not 
select any person employed by or affiliated with any participant or its 
affiliates or facilities.
    (c) Function. Members of the Advisory Committee shall have the 
right to submit their views to the Operating Committee on Plan matters, 
prior to a

[[Page 54856]]

decision by the Operating Committee on such matters. Such matters shall 
include, but not be limited to, any new or modified product, fee, 
contract, or pilot program that is offered or used pursuant to the 
Plan.
    (d) Meetings and Information. Members of the Advisory Committee 
shall have the right to attend all meetings of the Operating Committee 
and to receive any information concerning Plan matters that is 
distributed to the Operating Committee; provided, however, that the 
Operating Committee may meet in executive session if, by affirmative 
vote of a majority of the Participants entitled to vote, the Operating 
Committee determines that an item of Plan business requires 
confidential treatment.

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

[[Page 54857]]

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 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 NASD Participant that constitutes NASD's 
single Best Bid and Offer quotations, 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. 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 and, in the case of NASD, the NASD 
Participant(s) that constitutes NASD's Best Bid and Offer quotations. 
In addition, 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.
    3. 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 Web site.

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 NASD Participant along with the NASD Participant's market 
participant identification 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

[[Page 54858]]

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 LLC.
B................................  Boston Stock Exchange, Inc.
W................................  Chicago Board Options Exchange, Inc.
M................................  Chicago Stock Exchange, Inc.
I................................  International Securities Exchange,
                                    Inc.
D................................  NASD.
Q................................  Nasdaq Stock Market LLC.
C................................  National Stock Exchange, Inc.
P................................  NYSE Arca, Inc.
X................................  Philadelphia Stock Exchange, Inc.
------------------------------------------------------------------------

    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 NASD market participant, 
acting in its capacity as such, direct telephone access to the 
specialist, trading post, market maker and supervisory center in each 
Eligible Security in which such NASD market participant is registered 
as a market maker or electronic communications network/alternative 
trading system with NASD. 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 NASD 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 direct telephone access to the trading desk of each NASD 
market participant in each Eligible Security in which the Participant 
displays quotations, and to the NASD Supervisory Center. Such access 
shall include appropriate procedures or requirements to assure the 
timely response of each NASD market participant to communications 
received through telephone access. No NASD 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. 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.S, 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

[[Page 54859]]

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 8 p.m. ET, shall be designated 
as ``.T'' trades to denote their execution outside normal market hours;
    (ii) Transactions in Eligible Securities executed after 8 p.m. and 
before 12 a.m. (midnight) shall be reported to the Processor between 
the hours of 4 a.m. and 8 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;
    (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 8 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 8 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 8 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

[[Page 54860]]

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 or which otherwise becomes effective pursuant to Section 11A of the 
Act and Rule 608 of Regulation NMS.

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 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 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 Processor's 
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 
such signatures shall constitute one and the same instrument.

[[Page 54861]]

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:

International Securities Exchange, Inc.
By:

NASD
By:

National Stock Exchange, Inc.
By:

NYSE Arca, Inc.
By:

Philadelphia Stock Exchange, Inc.
By:

The Nasdaq Stock Market LLC
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 for that calendar year by (ii) the 
total distributable net operating income (as defined below) for that 
calendar year. 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 for the year and (ii) the Participant's percentage of total 
share volume in Nasdaq securities reported to the Processor 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 for 
that year by the total number of trades in Nasdaq securities reported 
to the Processor 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 
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 and 
quarters shall end on March 31, June 30, September 30, and December 31. 
Processor shall endeavor to provide Participants with written estimates 
of each Participant's percentage of total volume within five business 
days of month end.
    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, and 
the OTC Montage Data Feed including revenues from the dissemination of 
information respecting 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, including:
    1. Cost of collecting Participant quotes into the Processor's quote 
engine;
    2. Cost of processing quotes and creating OTC Montage Data Feed 
messages within the Processor's quote engine;
    3. Cost of the Processor's communication management subsystem that 
distributes OTC Montage Data Feed to the market data vendor network for 
further distribution.
    b. The costs directly attributable to creating the UTP Quote Data 
Feed, including:
    1. The costs of collecting each Participant's best bid, best offer, 
and aggregate volume into the Processor's quote engine and, in the case 
of NASD, the costs of identifying the NASD Participant(s) that 
constitute NASD's Best Bid and Offer quotations;
    2. Cost of calculating the national best bid and offer price within 
the Processor's quote engine;
    3. Cost of creating the UTP Quote Data Feed message within the 
Processor's quote engine;
    4. 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. The costs of collecting each Participant's last sale and volume 
amount into the Processor's quote engine;
    2. Cost of determining the appropriate last sale price and volume 
amount within the Processor's trade engine;
    3. Cost of utilizing the Processor's trade engine to distribute the 
UTP Trade Data Feed for distribution to the market data vendors.
    4. Cost of the Processor's communication management subsystem that 
distributes the UTP Trade Data Feed to the marker data vendors' 
networks for further distribution.
    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;

[[Page 54862]]

    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 NT or Tandem 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.
    3. At the time a Participant implements a Processor-approved 
electronic interface with the Processor, the Participant will become 
eligible to receive revenue.
    4. Processor shall endeavor to provide Participants with written 
estimates of each Participant's quarterly net distributable operating 
income within 45 calendar days of the end of the quarter, and estimated 
quarterly payments or billings shall be made on the basis of such 
estimates. All 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 each quarterly payment or billing shall be reconciled 
against a Participant's cumulative year-to-date payment or billing 
received to date and adjusted accordingly, and further 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. 
Monthly interest shall start accruing 45 days following the month in 
which it is earned and accrue until the date on which the payment is 
made.
    In conjunction with calculating estimated quarterly and reconciled 
annual payments under this Exhibit 1, the Processor shall submit to the 
Participants a quarterly itemized statement setting forth the basis 
upon which net operating income was calculated, including a quarterly 
itemized statement of the Processor costs set forth in Paragraph 3 of 
this Exhibit. Such Processor costs and Plan revenues shall be adjusted 
annually based solely on the Processor's quarterly itemized statement 
audited pursuant to Processor's annual audit. Processor shall pay or 
bill Participants for the audit adjustments within thirty days of 
completion of the annual audit. 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. E6-15515 Filed 9-18-06; 8:45 am]
BILLING CODE 8010-01-P