[Federal Register Volume 86, Number 225 (Friday, November 26, 2021)]
[Notices]
[Pages 67541-67555]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-25748]



[[Page 67541]]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-93620; File No. S7-24-89]


Joint Industry Plan; Notice of Filing of the Fifty-First 
Amendment 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

November 19, 2021.
    Pursuant to Section 11A of the Securities Exchange Act of 1934 
(``Act'') \1\ and Rule 608 thereunder,\2\ notice is hereby given that 
on November 5, 2021,\3\ the Participants \4\ in 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 (``UTP Plan'' or ``Plan'') filed with the Securities and Exchange 
Commission (``Commission'') a proposal to amend the UTP Plan. The 
amendment represents the Fifty-First Amendment to the Plan 
(``Amendment''). Under the Amendment, the Participants propose to amend 
the UTP Plan to implement the non-fee-related aspects of the 
Commission's Market Data Infrastructure Rules (``MDI Rules'').\5\ The 
Participants have submitted a separate amendment to the UTP Plan to 
adopt fees for the receipt of the expanded content of consolidated 
market data pursuant to the MDI Rules.
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    \1\ 15 U.S.C. 78k-1.
    \2\ 17 CFR 242.608.
    \3\ See Letter from Robert Books, Chair, UTP Operating 
Committee, to Vanessa Countryman, Secretary, Commission (Nov. 5, 
2021).
    \4\ The Participants are: Cboe BYX Exchange, Inc., Cboe BZX 
Exchange, Inc., Cboe EDGA Exchange, Inc., Cboe EDGX Exchange, Inc., 
Cboe Exchange, Inc., Financial Industry Regulatory Authority, Inc., 
The Investors' Exchange LLC, Long-Term Stock Exchange, Inc., MEMX 
LLC, MIAX PEARL, LLC, Nasdaq BX, Inc., Nasdaq ISE, LLC, Nasdaq PHLX, 
Inc., The Nasdaq Stock Market LLC, New York Stock Exchange LLC, NYSE 
American LLC, NYSE Arca, Inc., NYSE Chicago, Inc., and NYSE 
National, Inc. (collectively, the ``Participants'').
    \5\ Securities Exchange Act Release No. 90610, 86 FR 18596 
(April 9, 2021) (File No. S7-03-20) (``MDI Rules Release'').
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    The proposed Amendment has been filed by the Participants pursuant 
to Rule 608(b)(2) under Regulation NMS.\6\ The Commission is publishing 
this notice to solicit comments from interested persons on the proposed 
Amendment. Set forth in Sections I and II, which were prepared and 
submitted to the Commission by the Participants, is the statement of 
the purpose and summary of the Amendment, along with information 
pursuant to Rules 608(a) and 601(a) under the Act. A copy of the Plan 
marked to show the proposed Amendment is Attachment A to this notice.
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    \6\ 17 CFR 242.608(b)(2).
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I. Rule 608(a)

A. Purpose of the Amendments

    On December 9, 2020, the Commission adopted amendments to 
Regulation NMS. The effective date of the final MDI Rules was June 8, 
2021. New Rule 614(e) of Regulation NMS, as set forth in the MDI rules, 
provides that, ``[t]he participants to the effective national market 
system plan(s) for NMS stocks shall file with the Commission . . . an 
amendment that includes [the provisions specified in Rule 614(e)(1)-
(5)] within 150 calendar days from June 8, 2021[,]'' which is November 
5, 2021. The Participants are filing the above-captioned amendment to 
comply with Rule 614(e) requirements. As further specified in the MDI 
Rules Release, the Participants must also submit updated fees regarding 
the receipt and use of the expanded content of consolidated market 
data.\7\ The Participants are submitting a separate amendment to the 
UTP Plan to propose such fees.
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    \7\ MDI Rules Release at 18699.
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    Below, the Participants summarize the proposed amendment to the UTP 
Plan to comply with Rule 614(e) of the MDI Rules.\8\
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    \8\ As the Commission is aware, some of the SROs (the 
``Petitioners'') have challenged the MDI Rules Release in the D.C. 
Circuit. The Petitioners have joined in this submission, including 
the statement that the Plan amendments comply with the MDI Rules 
Release, solely to satisfy the requirements of the MDI Rules Release 
and Rule 608. Nothing in this submission should be construed as 
abandoning any arguments asserted in the D.C. Circuit, as an 
agreement by Petitioners with any analysis or conclusions set forth 
in the MDI Rules Release, or as a concession by Petitioners 
regarding the legality of the MDI Rules Release. Petitioners reserve 
all rights in connection with their pending challenge of the MDI 
Rules Release, including inter alia, the right to withdraw the 
proposed amendment or assert that any action relating to the 
proposed amendment has been rendered null and void, depending on the 
outcome of the pending challenge. Petitioners further reserve all 
rights with respect to this submission, including inter alia, the 
right to assert legal challenges regarding the Commission's 
disposition of this submission.
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Section III
    The Participants propose adding a statement that terms used in the 
UTP Plan will have the same meaning as such terms are defined in Rule 
600(b) under the Securities Exchange Act of 1934 (the ``Exchange 
Act''). The Participants also propose adding a definition of ``Primary 
Listing Exchange'' to comply with the requirements of the MDI Rules. 
The definition of ``Primary Listing Exchange'' replaces the definition 
``Listing Market'' previously in the UTP Plan.
    The Participants also propose amending the definition of 
``Quotation Information'' and ``Transaction Reports'' to track more 
closely the requirements of the MDI Rules.
    Finally, the Participants proposing amending the definition of 
``News Service'' and ``Vendor'' to reference Competing Consolidators as 
a potential source of Quotation Information or Transaction Reports.
Section IV
    The Participants propose to amend Section IV.B to include 
references to Competing Consolidators and Self-Aggregators. 
Additionally, the Participants propose to add the requirements that the 
Operating Committee will publish on the UTP Plan's website: (1) The 
Primary Listing Exchange for each Eligible Security; and (2) on a 
monthly basis, the consolidated market data gross revenues for Eligible 
Securities. This addition is designed to comply with the requirements 
of Rule 614(e)(4) and (5)(ii).
Section VII
    The Participants propose to amend Section VII by referring to the 
Administrator rather than the Processor since the Administrative 
Functions being described in that Section are more appropriately 
ascribed to the Administrator.
Section VIII
    The Participants propose adding new Section VIII--and renumbering 
the remaining sections--to describe the process for evaluating 
Competing Consolidators. The proposed additions state that, on an 
annual basis, the Operating Committee will assess the performance of 
Competing Consolidators, prepare an annual report containing such 
assessment, and furnish the report to the Commission prior to the 
second quarterly meeting of the Operating Committee. These additions 
are designed to comply with the requirements of Rule 614(e)(3).
    In addition, Rule 614(d)(5) requires Competing Consolidators to 
publish prominently on their websites monthly performance metrics, 
which are to be defined by the UTP Plan. Accordingly, the Participants 
propose to amend Section VIII to define such ``monthly performance 
metrics,'' in accordance

[[Page 67542]]

with the requirements of Rule 614(d)(5) and sub-paragraphs (i)-(v) 
thereof.\9\
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    \9\ MDI Rules Release at 18673.
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Section IX (Previously Section VIII)
    The Participants propose to amend Section IX to reference Competing 
Consolidators and Self- Aggregators.
    The Participants propose to amend Sections IX.A and IX.B to add the 
requirement that each Participant agrees to collect and transmit to 
Competing Consolidators and Self-Aggregators all quotation information 
and transaction reports required to be made available pursuant to Rule 
603(b) of Regulation NMS in the same manner and using the same methods, 
including all methods of access and the same format, as such 
Participant makes available any information with respect to quotations 
for and transactions in Eligible Securities to any person. The 
Participants also propose amending Sections IX.A and IX.B to require 
that quotation information and transaction reports include the time 
that the Participant made such information available to Competing 
Consolidators and Self-Aggregators. These additions are designed to 
comply with the requirements of Rule 614(e)(1) and (2).
Section XI (Previously Section X)
    The Participants propose revising Section XI to include references 
to notifying Competing Consolidators and Self-Aggregators in addition 
to the Processor in connection with Regulatory and Operational Halts. 
The Participants believe these additions are consistent with the 
requirements of Rule 614(e)(1) and are necessary to ensure that such 
entities are notified of information related to Regulatory and 
Operational Halts and, with respect to Competing Consolidators, can 
further disseminate such information to their customers.
    The Participants also propose replacing the term ``Listing Market'' 
with ``Primary Listing Exchange'' to align with the terminology used in 
the MDI Rules.
Section XII (Previously Section XI)
    The Participants propose amending Section XII to include references 
to Competing Consolidators and Self-Aggregators.
Section XIV (Previously Section XIII)
    The Participants propose amending Section XIV.C by referring to the 
Administrator rather than the Processor since the responsibilities 
being described in that Section are more appropriately ascribed to the 
Administrator.
Section XV (Previously Section XIV)
    The Participants propose amending Section XV to include references 
to Competing Consolidators and Self-Aggregators.
Section XVIII (Previously Section XVII)
    The Participants propose amending Section XVIII to include 
references to Competing Consolidators and Self-Aggregators.
Section XIX (Previously Section XVIII)
    The Participants propose amending Section XIX to include references 
to Competing Consolidators and Self-Aggregators.
Section XXI
    The Participants propose deleting former Section XXI (Depth of Book 
Display). The Participants believe that this provision is obsolete 
given the MDI Rules.

B. Governing or Constituent Documents

    Not applicable.

C. Implementation of Amendments

    All of the Participants have manifested their approval of the 
proposed amendments by means of their execution of the UTP Plan 
Amendment. The UTP Plan Amendment would become operational upon 
approval by the Commission.

D. Development and Implementation Phases

    The amendments proposed herein would be implemented to coincide 
with the phased implementation of the MDI Rules as required by the 
Commission.

E. Analysis of Impact on Competition

    The Participants believe that the proposed amendments comply with 
the requirements of the MDI Rules, which have been approved by the 
Commission.

F. Written Understanding or Agreements Relating to Interpretation of, 
or Participation in, Plans

    Not applicable.

G. Approval by Sponsors in Accordance With Plan

    Section IV.C.1.a of the UTP Plan requires the Participants to 
unanimously approve the amendments proposed herein. They have so 
approved it.

H. Description of Operation of Facility Contemplated by the Proposed 
Amendment

    Not applicable.

I. Terms and Conditions of Access

    Not applicable.

J. Method of Determination and Imposition, and Amount of, Fees and 
Charges

    Not applicable.

K. Method and Frequency of Processor Evaluation

    Not applicable.

L. Dispute Resolution

    Not applicable.

II. Rule 601(a)

A. Reporting Requirements

    Not applicable.

B. Manner of Collecting, Processing, Sequencing, Making Available and 
Disseminating Last Sale Information

    The Participants propose to amend Section IX.B to add the 
requirement that each Participant agrees to collect and transmit to 
Competing Consolidators and Self-Aggregators all transaction reports 
required to be made available pursuant to Rule 603(b) of Regulation NMS 
in the same manner and using the same methods, including all methods of 
access and the same format, as such Participant makes available any 
information with respect to transactions in Eligible Securities to any 
person. The Participants also propose amending Section IX.B to require 
that transaction reports include the time that the Participant made 
such information available to Competing Consolidators and Self-
Aggregators. These additions are designed to comply with the 
requirements of the MDI Rules.

C. Manner of Consolidation

    Not applicable.

D. Standards and Methods Ensuring Promptness, Accuracy and Completeness 
of Transaction Reports

    Not applicable.

E. Rules and Procedures Addressed to Fraudulent or Manipulative 
Dissemination

    Not applicable.

F. Terms of Access to Transaction Reports

    Not applicable.

G. Identification of Marketplace of Execution

    Not applicable.

III. Solicitation of Comments

    The Commission seeks comments on the Amendment. Interested persons 
are invited to submit written data, views, and arguments concerning the 
foregoing, including whether the proposed Amendment is consistent with

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the Act and the rules and regulations thereunder applicable to national 
market system plans. 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 email to [email protected]. Please include 
File Number S7-24-89 on the subject line.

Paper Comments

     Send paper comments in triplicate to 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 email 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 website (http://www.sec.gov/rules/sro.shtml). Copies of 
the submission, all written statements with respect to the proposed 
Amendment that are filed with the Commission, and all written 
communications relating to the proposed 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 website viewing and printing in the Commission's Public 
Reference Room, 100 F Street NE, Washington, DC 20549, on official 
business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of 
the filing will also be available for website viewing and printing at 
the principal office of the Plan. All comments received will be posted 
without change. Persons submitting comments are cautioned that we do 
not redact or edit personal identifying information from comment 
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 December 17, 2021.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\10\
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    \10\ 17 CFR 200.30-3(a)(85).
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J. Matthew DeLesDernier,
Assistant Secretary.

Attachment A--Proposed Changes to the UTP Plan

Attachment A

Proposed Amendments to the NASDAQ/UTP Plan

Marked To Show Changes From the Existing Plan

(Additions are italicized; Deletions are in [brackets])
I. Participants
    The Participants include the following:
A. Participants
1. Cboe BYX Exchange, Inc., 400 South LaSalle Street, Chicago, Illinois 
60605
2. Cboe BZX Exchange, Inc., 400 South LaSalle Street, Chicago, Illinois 
60605
3. Cboe EDGA Exchange, Inc., 400 South LaSalle Street, Chicago, 
Illinois 60605
4. Cboe EDGX Exchange, Inc., 400 South LaSalle Street, Chicago, 
Illinois 60605
5. Cboe Exchange, Inc., 400 South LaSalle Street, Chicago, Illinois 
60605
6. Financial Industry Regulatory Authority, Inc., 1735 K Street NW, 
Washington, DC 20006
7. Investors' Exchange LLC, 3 World Trade Center, 58th Floor, New York, 
New York 10007
8. Long-Term Stock Exchange, Inc., 300 Montgomery St., Ste. 790, San 
Francisco, CA 94104
9. MEMX LLC, 111 Town Square Place, Suite 520, Jersey City, New Jersey 
07310
10. MIAX PEARL, LLC, 7 Roszel Road, Suite 1A, Princeton, New Jersey 
08540
11. Nasdaq BX, Inc., One Liberty Plaza, 165 Broadway, New York, New 
York 10006
12. Nasdaq ISE, LLC, One Liberty Plaza, 165 Broadway, New York, New 
York 10006
13. Nasdaq PHLX LLC, FMC Tower, Level 8, 2929 Walnut Street, 
Philadelphia, Pennsylvania 19104
14. The Nasdaq Stock Market LLC, One Liberty Plaza, 165 Broadway, New 
York, NY 10006
15. New York Stock Exchange LLC, 11 Wall Street, New York, New York 
10005
16. NYSE American LLC, 11 Wall Street, New York, New York 10005
17. NYSE Arca, Inc., 11 Wall Street, New York, New York 10005
18. NYSE Chicago, Inc., 11 Wall Street, New York, New York 10005
19. NYSE National, Inc., 101 Hudson, Suite 1200, Jersey City, NJ 07302
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

    Terms used in this plan have the same meaning as the terms defined 
in Rule 600(b) under the Act.
    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

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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.
    D. ``Exchange Act'' means the Securities Exchange Act of 1934, as 
amended.
    E. ``Market'' shall mean (i) when used with respect to Quotation 
Information, FINRA in the case of a FINRA 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. ``FINRA'' means the Financial Industry Regulatory Authority, 
Inc.
    G. ``FINRA Participant'' means a FINRA member that is registered as 
a market maker or an electronic communications network or otherwise 
utilizes the facilities of FINRA pursuant to applicable FINRA 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 Rule 11Aa3-1, 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 FINRA, the FINRA Participant(s) 
that constitutes FINRA'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 who receives Transaction Reports 
or Quotation Information provided by the Systems or provided by a 
Competing Consolidators or 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 or Competing 
Consolidator.
    N. ``OTC Montage Data Feed'' means the data stream of information 
that provides Vendors and Subscribers with quotations and sizes from 
each FINRA 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. ``Primary Listing Exchange'' means the national securities 
exchange on which an Eligible Security is listed. If an Eligible 
Security is listed on more than one national securities exchange, 
Primary Listing Exchange means the exchange on which the security has 
been listed the longest.
    [Q]R. ``Processor'' means the entity selected by the Participants 
to perform the processing functions set forth in the Plan.
    [R]S. ``Quotation Information'' means all [bids, offers, displayed 
quotation sizes, the market center identifiers and, in the case of 
FINRA, the FINRA Participant that entered the quotation, withdrawals 
and other information pertaining to quotations]information with respect 
to quotations for[ in] Eligible Securities required to be collected and 
made available to the Processor, Competing Consolidators, and Self-
Aggregators pursuant to this Plan, including all data necessary to 
generate consolidated market data.
    [S]T. ``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]U. ``Subscriber'' means a person who receives Current Quotation 
Information or Transaction Reports provided by the Processor or 
Competing Consolidator 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]V. ``Transaction Reports'' means all information with respect to 
transactions in Eligible Securities required to be collected and made 
available to the Processor, Competing Consolidators, and Self-
Aggregators pursuant to this Plan, including all data necessary to 
generate consolidated market data[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]W. ``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]X. ``Vendor'' means a person who receives Current Quotation 
Information or Transaction Reports provided by the Processor, Competing 
Consolidator, 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

[[Page 67545]]

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, their 
representatives, and members of the Advisory Committee to participate 
on the Operating Committee in any manner other than as an advisor or 
observer. Only the Participants and their representatives as well as 
Commission staff may participate in Executive Sessions 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 Competing Consolidators, Self-Aggregators, Vendors, 
Subscribers, News Services and others in accordance with the provisions 
of the Plan;
    2. Periodically evaluating the Processor and Competing 
Consolidators;
    3. Setting the level of fees to be paid by Competing Consolidators, 
Self-Aggregators, 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. Publishing on the Plan's website the Primary Listing Exchange 
for each Eligible Security;
    7. Calculating and publishing on a monthly basis consolidated 
market data gross revenues for Eligible Securities; and
    8. 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; and
    c. termination of the Processor, except for termination for cause, 
which shall be governed by Section V(B) hereof.
    2. The affirmative vote of two-thirds of the Participants entitled 
to vote shall be necessary to constitute the action of the Operating 
Committee with respect to the establishment of new fees, the deletion 
of existing fees, or increases or reductions in existing fees relating 
to Quotation Information and Transaction Reports in Eligible 
Securities.
    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;
    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;
    d. denials of access (other than for breach of contract, which 
shall be handled by the Processor); and
    e. all other matters not specifically addressed by the Plan.
    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 FINRA, from FINRA 
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 2/3rd majority 
vote of all Participants, a quorum of at least 2/3rd 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

[[Page 67546]]

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, ( ) 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 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.
F. Potential Conflicts of Interests
    1. Disclosure Requirements. The Participants, the Processor, the 
Plan Administrator, members of the Advisory Committee, and each service 
provider or subcontractor engaged in Plan business (including the audit 
of subscribers' data usage) that has access to Restricted or Highly 
Confidential Plan information (for purposes of this section, 
``Disclosing Parties'') shall complete the applicable questionnaire to 
provide the required disclosures set forth below to disclose all 
material facts necessary to identify potential conflicts of interest. 
The Operating Committee, a Participant, Processor, or Administrator may 
not use a service provider or subcontractor on Plan business unless 
that service provider or subcontractor has agreed in writing to provide 
the disclosures required by this section and has submitted completed 
disclosures to the Administrator prior to starting work. If state laws, 
rules, or regulations, or applicable professional ethics rules or 
standards of conduct, would act to restrict or prohibit a Disclosing 
Party from making any particular required disclosure, a Disclosing 
Party shall refer to such law, rule, regulation, or professional ethics 
rule or standard and include in response to that disclosure the basis 
for its inability to provide a complete response. This does not relieve 
the Disclosing Party from disclosing any information it is not 
restricted from providing.
    a. A potential conflict of interest may exist when personal, 
business, financial, or employment relationships could be perceived by 
a reasonable objective observer to affect the ability of a person to be 
impartial.
    b. Updates to Disclosures. Following a material change in the 
information disclosed pursuant to subparagraph F.1, a Disclosing Party 
shall promptly update its disclosures. Additionally, a Disclosing Party 
shall update annually any inaccurate information prior to the Operating 
Committee's first quarterly meeting of a calendar year.
    c. Public Dissemination of Disclosures. The Disclosing Parties 
shall provide the Administrator with its disclosures and any required 
updates. The Administrator shall ensure that the disclosures are 
promptly posted to the Plan's website.
    2. Recusal.
    a. A Disclosing Party may not appoint as its representative a 
person that is responsible for or involved with the development, 
modeling, pricing, licensing, or sale of proprietary data products 
offered to customers of a securities information processor if the 
person has a financial interest (including compensation) that is tied 
directly to the exchange's proprietary data business and if that 
compensation would cause a reasonable objective observer to expect the 
compensation to affect the impartiality of the representative.
    b. A Disclosing Party (including its representative(s), employees, 
and agents) will be recused from participating in Plan activities if it 
has not submitted a required disclosure form or the Operating Committee 
votes that its disclosure form is materially deficient. The recusal 
will be in effect until the Disclosing Party submits a sufficiently 
complete disclosure form to the Administrator.
    c. A Disclosing Party, including its representative(s), and its 
affiliates and their representative(s), are recused from voting on 
matters in which it or its affiliate (i) are seeking a position or 
contract with the Plan or (ii) have a position or contract with the 
Plan and whose performance is being evaluated by the Plan.
    d. All recusals, including a person's determination of whether to 
voluntarily recuse himself or herself, shall be reflected in the 
meeting minutes.
* * * * *
    Required Disclosures for the UTP Plan As part of the disclosure 
regime, the Participants, the Processors, the Administrators, members 
of the Advisory Committee, and service providers and subcontractors 
must respond to questions that are tailored to elicit responses that 
disclose the potential conflicts of interest.
    The Participants must respond to the following questions and 
instructions:
     Is the Participant's firm for profit or not-for-profit? If 
the Participant's firm is for profit, is it publicly or privately 
owned? If privately owned, list any owner with an interest of 5% or 
more of the Participant, where to the Participant's knowledge, such 
owner, or any affiliate controlling, controlled by, or under common 
control with the owner, subscribes, directly or through a third-party 
vendor, to SIP and/or exchange Proprietary Market Data products.
     Does the Participant firm offer real-time proprietary 
equity market data that is filed with the SEC (``Proprietary Market 
Data'')? If yes, list each product, describe its content, and provide a 
link to where fees for each product are disclosed.
     Provide the names of the representative and any 
alternative representatives designated by the Participant who are 
authorized under the Plans to vote on behalf of the Participant. Also 
provide a narrative description of the representatives' roles within 
the Participant organization, including the title of each individual as 
well as any direct responsibilities related to the development, 
dissemination, sales, or marketing of the Participant's Proprietary 
Market Data, and the nature of those responsibilities

[[Page 67547]]

sufficient for the public to identify the nature of any potential 
conflict of interest that could be perceived by a reasonable objective 
observer as having an effect on the Plan. If the representative works 
in or with the Participant's Proprietary Market Data business, describe 
the representative's roles and describe how that business and the 
representative's Plan responsibilities impacts his or her compensation. 
In addition, describe how a representative's responsibilities with the 
Proprietary Market Data business may present a conflict of interest 
with his or her responsibilities to the Plan.
     Does the Participant, its representative, or its 
alternative representative, or any affiliate have additional 
relationships or material economic interests that could be perceived by 
a reasonable objective observer to present a potential conflict of 
interest with their responsibilities to the Plan? If so, provide a 
detailed narrative discussion of all material facts necessary to 
identify the potential conflicts of interest and the effects they may 
have on the Plan.
    The Processors must respond to the following questions and 
instructions:
     Is the Processor an affiliate of or affiliated with any 
Participant? If yes, disclose the Participant(s) and describe the 
nature of the affiliation. Include an entity-level organizational chart 
depicting the Processor and its affiliates.
     Provide a narrative description of the functions directly 
performed by senior staff, the manager employed by the Processor to 
provide Processor services to the Plans, and the staff that reports to 
that manager (collectively, the ``Plan Processor'').
     Does the Plan Processor provide any services for any 
Participant's Proprietary Market Data products or other Plans? If Yes, 
disclose the services the Plan Processor performs and identify which 
Plans. Does the Plan Processor have any profit or loss responsibility 
for a Participant's Proprietary Market Data products or any other 
professional involvement with persons the Processor knows are engaged 
in the Participant's Proprietary Market Data business? If so, describe.
     List the policies and procedures established to safeguard 
confidential Plan information that is applicable to the Plan Processor.
     Does the Processor, or its representatives, have 
additional relationships or material economic interests that could be 
perceived by a reasonable objective observer to present a potential 
conflict of interest with the representatives' responsibilities to the 
Plan? If so, provide a detailed narrative discussion of all material 
facts necessary to identify the potential conflicts of interest and the 
effects they may have on the Plan.
    The Administrators must respond to the following questions and 
instructions:
     Is the Administrator an affiliate of or affiliated with 
any Participant? If yes, disclose the Participant(s) and describe the 
nature of the affiliation. Include an entity-level organizational chart 
depicting the Administrator and its affiliates.
     Provide a narrative description of the functions directly 
performed by senior staff, the administrative services manager, and the 
staff that reports to that manager (collectively, the ``Plan 
Administrator'').
     Does the Plan Administrator provide any services for any 
Participant's Proprietary Market Data products? If yes, what services? 
Does the Plan Administrator have any profit or loss responsibility, or 
licensing responsibility, for a Participant's Proprietary Market Data 
products or any other professional involvement with persons the 
Administrator knows are engaged in the Participant's Proprietary Market 
Data business? If so, describe.
     List the policies and procedures established to safeguard 
confidential Plan information that is applicable to the Plan 
Administrator.
     Does the Administrator, or its representatives, have 
additional relationships or material economic interests that could be 
perceived by a reasonable objective observer to present a potential 
conflict of interest with the representatives' responsibilities to the 
Plan? If so, provide a detailed narrative discussion of all material 
facts necessary to identify the potential conflicts of interest and the 
effects they may have on the Plan.
    The Members of the Advisory Committee must respond to the following 
questions and instructions:
     Provide the Advisor's title and a brief description of the 
Advisor's role within the firm.
     Does the Advisor have responsibilities related to the 
firm's use or procurement of market data?
     Does the Advisor have responsibilities related to the 
firm's trading or brokerage services?
     Does the Advisor's firm use the SIP? Does the Advisor's 
firm use exchange Proprietary Market Data products?
     Does the Advisor's firm have an ownership interest of 5% 
or more in one or more Participants? If yes, list the Participant(s).
     Does the Advisor actively participate in any litigation 
against the Plans?
     Does the Advisor or the Advisor's firm have additional 
relationships or material economic interests that could be perceived by 
a reasonable objective observer to present a potential conflict of 
interest with their responsibilities to the Plan? If so, provide a 
detailed narrative discussion of all material facts necessary to 
identify the potential conflicts of interest and the effects they may 
have on the Plan.
     Pursuant to Section IV.F.1. of the Plan, each service 
provider or subcontractor that has agreed in writing to provide 
required disclosures and be treated as a Disclosing Party pursuant to 
Section IV.F of the Plan shall respond to the following questions and 
instructions:
     Is the service provider or subcontractor affiliated with a 
Participant, Processor, Administrator, or member of the Advisory 
Committee? If yes, disclose with whom the person is affiliated and 
describe the nature of the affiliation.
     If the service provider's or subcontractor's compensation 
is on a commission basis or is tied to specific metrics, provide a 
detailed narrative summary of how compensation is determined for 
performing work on behalf of the Plan.
     Is the service provider or subcontractor subject to 
policies and procedures (including information barriers) concerning the 
protection of confidential information that includes affiliates? If so, 
describe. If not, explain their absence.
     Does the service provider or subcontractor, or its 
representative, have additional relationships or material economic 
interests that could be perceived by a reasonable objective observer to 
present a potential conflict of interest with its responsibilities to 
the Plan? If so, provide a detailed narrative discussion of all 
material facts necessary to identify the potential conflicts of 
interest and the effects they may have on the Plan.
    The responses to these questions will be posted on the Plan's 
website. If a Disclosing Party has any material changes in its 
responses, the Disclosing Party must promptly update its disclosures. 
Additionally, the Disclosing Parties must update the disclosures on an 
annual basis to reflect any changes. This annual update must be made 
before the first quarterly session meeting of each calendar year, which 
is generally held in mid-February.

[[Page 67548]]

G. Confidentiality Policy
    The Participants have adopted the confidentiality policy set forth 
in Exhibit 4 to 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 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.
    The affirmative vote of two-thirds of the Participants entitled to 
vote shall be required to select a new processor or to approve any 
agreement between the Participants and a processor or any amendment to 
any such agreement. 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.
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 
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 
FINRA Participant(s) that constitutes FINRA's

[[Page 67549]]

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 FINRA.
    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 FINRA, the FINRA Participant(s) that constitutes 
FINRA'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 FINRA Participants 
from which quotations emanate.
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 website.

VII. Administrative Functions [of the Processor]

    Subject to the general direction of the Operating Committee, the 
[Processor] Administrator 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. Evaluation of Competing Consolidators

    On an annual basis, the Operating Committee shall assess the 
performance of Competing Consolidators, including an analysis with 
respect to speed, reliability, and cost of data provision. The 
Operating Committee shall prepare an annual report containing such 
assessment and furnish such report to the SEC prior to the second 
quarterly meeting of the Operating Committee. In conducting its 
analysis, the Operating Committee shall review the monthly performance 
metrics published by Competing Consolidators pursuant to Rule 
614(d)(5). ``Monthly performance metrics'' shall include:
    A. Capacity statistics, including system tested capacity, system 
output capacity, total transaction capacity, and total transaction peak 
capacity;
    B. Message rate and total statistics, including peak output rates 
on the following bases: 1-millisecond, 10-millisecond, 100-millisecond, 
500-millisecond, 1-second, and 5-second;
    C. System availability statistics, including system up-time 
percentage and cumulative amount of outage time;
    D. Network delay statistics, including quote and trade zero window 
size events, quote and trade retransmit events, and quote and trade 
message total; and
    E. Latency statistics, including distribution statistics up to the 
99.99th percentile, for the following:
    1. When a Participant sends an inbound message to a Competing 
Consolidator and when the Competing Consolidator receives the inbound 
message;
    2. When the Competing Consolidator receives the inbound message and 
when the Competing Consolidator sends the corresponding consolidated 
message to a customer of the Competing Consolidator; and
    3. When a Participant sends an inbound message to a Competing 
Consolidator and when the Competing Consolidator sends the 
corresponding consolidated message to a customer of the Competing 
Consolidator.

[VIII.]IX. Transmission of Information to Processor, Competing 
Consolidators, and Self-Aggregators 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. Each Participant further agrees to collect and 
transmit to Competing Consolidators and Self Aggregators all quotation 
information required to be made available by such Participant by Rule 
603(b) of Regulation NMS, including all data necessary to generated 
consolidated market data. Each Participant agrees to make available 
quotation information, and changes in any such information, to the 
Competing Consolidator and Self-Aggregators in the same manner and 
using the same methods, including all methods of access and the same 
format, as such Participant makes available any information with 
respect to quotations for and transactions in NMS stocks to any person.
    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 FINRA Participant along with the FINRA Participant's market 
participant identification or Participant from which the quotation 
emanates;
    4. identification of quotations that are not firm; and

[[Page 67550]]

    5. through appropriate codes and messages, withdrawals and similar 
matters.
    In addition, Quotation Information shall include:
    (A) In the case of a national securities exchange, the reporting 
Participant's matching engine publication timestamp (reported in 
microseconds); or
    (B) in the case of FINRA, the quotation publication timestamp that 
FINRA's bidding or offering member reports to FINRA's quotation 
facility in accordance with FINRA rules.
    Each bid and offer with respect to an Eligible Security furnished 
to Competing Consolidators and Self-Aggregators by any Participant 
pursuant to this Plan shall also be accompanied by the time the 
Participant made such bid and offer available to Competing 
Consolidators and Self Aggregators (reported in microseconds).
    In addition, if FINRA's quotation facility provides a proprietary 
feed of its quotation information, then the quotation facility shall 
also furnish the Processor, Competing Consolidators, and Self-
Aggregators with the time of the quotation as published on the 
quotation facility's proprietary feed.
    FINRA shall convert any quotation times reported to it in seconds 
or milliseconds to microseconds and shall furnish such times to the 
Processor, Competing Consolidators, and Self-Aggregators in 
microseconds.
B. Transaction Reports
    Each Participant shall (i) transmit all Transaction Reports in 
Eligible Securities as soon as practicable, but not later than 10 
seconds, after the time of execution, (ii) establish and maintain 
collection and reporting procedures and facilities reasonably designed 
to comply with this requirement, and (iii) designate as ``late'' any 
last sale price not collected and reported in accordance with the 
above-referenced procedures or as to which the Participant has 
knowledge that the time interval after the time of execution is 
significantly greater than the time period referred to above. Each 
Participant agrees to make available Transaction Reports to the 
Competing Consolidators, and Self-Aggregators in the same manner and 
using the same methods, including all methods of access and the same 
format, as such Participant makes available any information with 
respect to quotations for and transactions in NMS stocks to any person. 
[The Participants shall seek to reduce the time period for reporting 
last sale prices to the Processor as conditions warrant.]
    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.
    In addition, Transaction Reports shall include the time of the 
transaction (reported in microseconds) as identified in the 
Participant's matching engine publication timestamp and, with respect 
to reports to Competing Consolidators and Self-Aggregators, the time 
that the Participant made such information available to Competing 
Consolidators and Self-Aggregators (reported in microseconds). However, 
in the case of FINRA, the time of the transaction shall be the time of 
execution that a FINRA member reports to a FINRA trade reporting 
facility in accordance with FINRA rules. In addition, if the FINRA 
trade reporting facility provides a proprietary feed of trades reported 
by the trade reporting facility to the Processor, Competing 
Consolidators, and Self-Aggregators, then the FINRA trade reporting 
facility shall also furnish the Processor with the time of the 
transmission as published on the facility's proprietary feed.
    FINRA shall convert times that its members report to it in seconds 
or milliseconds to microseconds and shall furnish such times to the 
Processor, Competing Consolidators, and Self-Aggregators in 
microseconds.
    The following types of transactions are not required to be reported 
to the Processor, Competing Consolidators, or Self-Aggregators 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. the acquisition of securities by a broker-dealer as principal in 
anticipation of making an immediate exchange distribution or exchange 
offering on an exchange;
    5. purchases of securities pursuant to a tender offer; and
    6. 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 NYSE American LLC
Z Cboe BZX Exchange, Inc.
Y Cboe BYX Exchange, Inc.
B Nasdaq BX, Inc.
W Cboe Exchange, Inc.
M NYSE Chicago, Inc.
J Cboe EDGA Exchange, Inc.
K Cboe EDGX Exchange, Inc.
I Nasdaq ISE, LLC
V Investors' Exchange LLC
D Financial Industry Regulatory Authority, Inc.
Q The Nasdaq Stock Market LLC
C NYSE National, Inc.
N New York Stock Exchange LLC
P NYSE Arca, Inc.
X Nasdaq PHLX LLC
L Long-Term Stock Exchange Inc.
U MEMX LLC
H MIAX PEARL, LLC

    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, Competing Consolidators, and Self-Aggregators, or where a 
trading halt or suspension in an Eligible Security is in effect in its 
Market, the Participant shall promptly notify the Processor, Competing 
Consolidators, and Self-Aggregators 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, Competing 
Consolidators, and Self-Aggregators, the Participant shall promptly 
notify the Processor, Competing Consolidators, and Self-Aggregators of 
such event or condition.

[[Page 67551]]

Upon receiving such notification, the Processor shall take appropriate 
action, including either closing the quotation or purging the system of 
the affected quotations.

[IX]X. Market Access

    Pursuant to the requirements of Rule 610 of Regulation NMS, a 
Participant that operates an SRO trading facility shall provide for 
fair and efficient order execution access to quotations in each 
Eligible Security displayed through its trading facility. In the case 
of a Participant that operates an SRO display-only quotation facility, 
trading centers posting quotations through such SRO display-only 
quotation facility must provide for fair and efficient order execution 
access to quotations in each Eligible Security displayed through the 
SRO display-only quotation facility. A Participant that operates an SRO 
trading facility may elect to allow such access to its quotations 
through the utilization of private electronic linkages between the 
Participant and other trading centers. In the case of a Participant 
that operates an SRO display-only quotation facility, trading centers 
posting quotations through such SRO display-only quotation facility may 
elect to allow such access to their quotations through the utilization 
of private electronic linkages between the trading center and SRO 
trading facilities of Participants and/or other trading centers.
    In accordance with Regulation NMS, a Participant shall not impose, 
or permit to be imposed, any fee or fees for the execution of an order 
against a protected quotation of the Participant or of a trading center 
posting quotes through a Participant's SRO display-only quotation 
facility in an Eligible Security or against any other quotation 
displayed by the Participant in an Eligible Security that is the 
Participant's displayed best bid or offer for that Eligible Security, 
where such fee or fees exceed the limits provided for in Rule 610(c) of 
Regulation NMS. As required under Regulation NMS, the terms of access 
to a Participant's quotations or of a trading center posting quotes 
through a Participant's SRO display-only quotation facility in an 
Eligible Security may not be unfairly discriminatory so as to prevent 
or inhibit any person from obtaining efficient access to such displayed 
quotations through a member of the Participant or a subscriber of a 
trading center.
    If quotations in an Eligible Security are displayed by a 
Participant that operates an SRO trading facility (or are displayed by 
a trading center that posts quotations through an SRO display-only 
quotation facility) that complies with the fair and efficient access 
requirements of Regulation NMS (an ``NMS Compliant Facility''), 
including prior to the compliance date of such access requirements, 
that Participant (or trading center posting quotes through an SRO 
display-only quotation facility) shall no longer be required to permit 
each FINRA market participant to have direct telephone access to the 
specialist, trading post, market maker and supervisory center in such 
Eligible Security that trades on that NMS Compliant Facility. For 
quotations in Eligible Securities that are displayed by a Participant 
that operates an SRO trading facility that is not an NMS Compliant 
Facility, such telephone access requirement will continue to be 
applicable to the Participant.

[Section X]XI. Regulatory and Operational Halts

A. Definitions for Purposes of Section XI.
    1. ``Extraordinary Market Activity'' means a disruption or 
malfunction of any electronic quotation, communication, reporting, or 
execution system operated by, or linked to, the Processor or a Trading 
Center or a member of such Trading Center that has a severe and 
continuing negative impact, on a market-wide basis, on quoting, order, 
or trading activity or on the availability of market information 
necessary to maintain a fair and orderly market. For purposes of this 
definition, a severe and continuing negative impact on quoting, order, 
or trading activity includes (i) a series of quotes, orders, or 
transactions at prices substantially unrelated to the current market 
for the security or securities; (ii) duplicative or erroneous quoting, 
order, trade reporting, or other related message traffic between one or 
more Trading Centers or their members; or (iii) the unavailability of 
quoting, order, transaction information, or regulatory messages for a 
sustained period.
    2. ``Limit Up Limit Down'' means the Plan to Address Extraordinary 
Market Volatility pursuant to Rule 608 of Regulation NMS under the 
Exchange Act.
    3. ``Market'' means (i) in respect of FINRA, the facilities through 
which FINRA members display quotations and report transactions in 
Eligible Securities to FINRA and (ii) in respect of each Participant 
other than FINRA, the marketplace for Eligible Securities that the 
Participant operates.
    4. ``Market-Wide Circuit Breaker'' means a halt in trading in all 
stocks in all Markets under the rules of a [Primary Listing Market] 
Primary Listing Exchange.
    5. ``Material SIP Latency'' means a delay of quotation or last sale 
price information in one or more securities between the time data is 
received by the Processor and the time the Processor disseminates the 
data over the Processor's vendor lines, which delay the [Primary 
Listing Market] Primary Listing Exchange determines, in consultation 
with, and in accordance with, publicly disclosed guidelines established 
by Operating Committee, to be (a) material and (b) unlikely to be 
resolved in the near future.
    6. ``Member Firm'' means a member as that term is defined in 
Section 3(a)(3) of the Exchange Act.
    7. ``Operational Halt'' means a halt in trading in one or more 
securities only on a Market declared by such Participant and is not a 
Regulatory Halt.
    [8. ``Primary Listing Market'' means the national securities 
exchange on which an Eligible Security is listed. If an Eligible 
Security is listed on more than one national securities exchange, 
Primary Listing Market means the exchange on which the security has 
been listed the longest.]
    [9]8. ``Regular Trading Hours'' has the meaning provided in Rule 
600(b)(68) of Regulation NMS. Regular Trading Hours can end earlier 
than 4:00 p.m. ET in the case of an early scheduled close.
    [10.]9. ``Regulatory Halt'' means a halt declared by the Primary 
Listing Market in trading in one or more securities on all Trading 
Centers for regulatory purposes, including for the dissemination of 
material news, news pending, suspensions, or where otherwise necessary 
to maintain a fair and orderly market. A Regulatory Halt includes a 
trading pause triggered by Limit Up Limit Down, a halt based on 
Extraordinary Market Activity, a trading halt triggered by a Market-
Wide Circuit Breaker, and a SIP Halt.
    [11.]10. ``SIP Halt'' means a Regulatory Halt to trading in one or 
more securities that a [Primary Listing Market] Primary Listing 
Exchange declares in the event of a SIP Outage or Material SIP Latency.
    [12.]11. ``SIP Halt Resume Time'' means the time that the [Primary 
Listing Market] Primary Listing Exchange determines as the end of a SIP 
Halt.
    [13.]12. ``SIP Outage'' means a situation in which the Processor 
has ceased, or anticipates being unable, to provide updated and/or 
accurate quotation or last sale price information in one or more 
securities for a material period that exceeds the time thresholds for 
an orderly failover to backup facilities established by mutual

[[Page 67552]]

agreement among the Processor, the [Primary Listing Market] Primary 
Listing Exchange for the affected securities, and the Operating 
Committee unless the [Primary Listing Market] Primary Listing Exchange, 
in consultation with the Processor and the Operating Committee, 
determines that resumption of accurate data is expected in the near 
future.
    [14. ``Trading Center'' has the same meaning as that term is 
defined in Rule 600(b)(82) of Regulation NMS.]
    B. Operational Halts. A Participant shall notify the Processor, 
Competing Consolidators, and Self-Aggregators if it has concerns about 
its ability to collect and transmit Quotation Information or 
Transaction Reports, or where it has declared an Operational Halt or 
suspension of trading in one or more Eligible Securities, pursuant to 
the procedures adopted by the Operating Committee.
    C. Regulatory Halts.
    1. The [Primary Listing Market] Primary Listing Exchange may 
declare a Regulatory Halt in trading for any security for which it is 
the [Primary Listing Market] Primary Listing Exchange:
    (a) As provided for in the rules of the [Primary Listing Market] 
Primary Listing Exchange;
    (b) if it determines there is a SIP Outage, Material SIP Latency, 
or Extraordinary Market Activity; or
    (c) in the event of national, regional, or localized disruption 
that necessitates a Regulatory Halt to maintain a fair and orderly 
market.
    2. In making a determination to declare a Regulatory Halt under 
subparagraph C.1, the [Primary Listing Market] Primary Listing Exchange 
will consider the totality of information available concerning the 
severity of the issue, its likely duration, and potential impact on 
Member Firms and other market participants and will make a good-faith 
determination that the criteria of subparagraph C.1 have been satisfied 
and that a Regulatory Halt is appropriate. The [Primary Listing Market] 
Primary Listing Exchange will consult, if feasible, with the affected 
Trading Center(s), other Participants, or the Processor, as applicable, 
regarding the scope of the issue and what steps are being taken to 
address the issue. Once a Regulatory Halt based under subparagraph C.1 
has been declared, the [Primary Listing Market] Primary Listing 
Exchange will continue to evaluate the circumstances to determine when 
trading may resume in accordance with the rules of the [Primary Listing 
Market] Primary Listing Exchange.
    D. Initiating a Regulatory Halt.
    1. The start time of a Regulatory Halt is when the Primary Listing 
Market declares the halt, regardless of whether an issue with 
communications impacts the dissemination of the notice.
    2. If the Processor is unable to disseminate notice of a Regulatory 
Halt or the [Primary Listing Market] Primary Listing Exchange is not 
open for trading, the [Primary Listing Market] Primary Listing Exchange 
will take reasonable steps to provide notice of a Regulatory Halt, 
which shall include both the type and start time of the Regulatory 
Halt, by dissemination through:
    (a) Proprietary data feeds containing quotation and last sale price 
information that the [Primary Listing Market] Primary Listing Exchange 
also sends to the Processor;
    (b) posting on a publicly-available Participant website; or
    (c) system status messages.
    3. Except in exigent circumstances, the [Primary Listing Market] 
Primary Listing Exchange will not declare a Regulatory Halt retroactive 
to a time earlier than the notice of such halt.
    E. Resumption of Trading After Regulatory Halts Other Than SIP 
Halts.
    1. The [Primary Listing Market] Primary Listing Exchange will 
declare a resumption of trading when it makes a good-faith 
determination that trading may resume in a fair and orderly manner and 
in accordance with its rules.
    2. For a Regulatory Halt that is initiated by another Participant 
that is a [Primary Listing Market] Primary Listing Exchange, a 
Participant may resume trading after the Participant receives 
notification from the [Primary Listing Market] Primary Listing Exchange 
that the Regulatory Halt has been terminated.
    F. Resumption of Trading After SIP Halt.
    1. The [Primary Listing Market] Primary Listing Exchange will 
determine the SIP Halt Resume Time. In making such determination, the 
[Primary Listing Market] Primary Listing Exchange will make a good-
faith determination and consider the totality of information to 
determine whether resuming trading would promote a fair and orderly 
market, including input from the Processor, the Operating Committee, or 
the operator of the system in question (as well as any Trading 
Center(s) to which such system is linked), regarding operational 
readiness to resume trading. The [Primary Listing Market] Primary 
Listing Exchange retains discretion to delay the SIP Halt Resume Time 
if it believes trading will not resume in a fair and orderly manner.
    2. The [Primary Listing Market] Primary Listing Exchange will 
terminate a SIP Halt with a notification that specifies a SIP Halt 
Resume Time. The [Primary Listing Market] Primary Listing Exchange 
shall provide a minimum notice of a SIP Halt Resume Time, as specified 
by the rules of the [Primary Listing Market] Primary Listing Exchange, 
during which period market participants may enter quotes and orders in 
the affected securities. During Regular Trading Hours, the last SIP 
Halt Resume Time before the end of Regular Trading Hours shall be an 
amount of time as specified by the rules of the [Primary Listing 
Market] Primary Listing Exchange. The [Primary Listing Market] Primary 
Listing Exchange may stagger the SIP Halt Resume Times for multiple 
symbols in order to reopen in a fair and orderly manner.
    3. During Regular Trading Hours, if the [Primary Listing Market] 
Primary Listing Exchange does not open a security within the amount of 
time as specified by the rules of the [Primary Listing Market] Primary 
Listing Exchange after the SIP Halt Resume Time, a Participant may 
resume trading in that security. Outside Regular Trading Hours, a 
Participant may resume trading immediately after the SIP Halt Resume 
Time.
    G. Participant to Halt Trading During Regulatory Halt. A 
Participant will halt trading for any security traded on its Market if 
the [Primary Listing Market] Primary Listing Exchange declares a 
Regulatory Halt for the security.
    H. Communications. Whenever, in the exercise of its regulatory 
functions, the [Primary Listing Market] Primary Listing Exchange for an 
Eligible Security determines it is appropriate to initiate a Regulatory 
Halt, the [Primary Listing Market] Primary Listing Exchange will notify 
all other Participants and the Processor, Competing Consolidators, and 
Self-Aggregators of such Regulatory Halt as well as provide notice that 
a Regulatory Halt has been lifted using such protocols and other 
emergency procedures as may be mutually agreed to between the Operating 
Committee and the [Primary Listing Market] Primary Listing Exchange. 
The Processor shall disseminate to Participants notice of the 
Regulatory Halt (as well as notice of the lifting of a Regulatory Halt) 
through (i) the Quote Data Feed and the Trade Data Feed, and (ii) any 
other means the Processor, in its sole discretion, considers 
appropriate. Each Participant shall be required to continuously monitor 
these communication protocols established by the Operating Committee 
and the Processor during market hours, and the

[[Page 67553]]

failure of a Participant to do so shall not prevent the [Primary 
Listing Market] Primary Listing Exchange from initiating a Regulatory 
Halt in accordance with the procedures specified herein.

[XI.]XII. 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 
4:00 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 4:00 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 4:00 p.m., ET, shall be report 
such transactions as follows:
    (i) Transactions in Eligible Securities executed between 4:00 a.m. 
and 9:29:59 a.m. ET and between 4:00:01 and 8:00 p.m. ET, shall be 
designated as ``.T'' trades to denote their execution outside normal 
market hours;
    (ii) transactions in Eligible Securities executed after 8:00 p.m. 
and before 12:00 a.m. (midnight) shall be reported to the Processor, 
Competing Consolidators, and Self-Aggregators between the hours of 4:00 
a.m. and 8:00 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 12:00 
a.m. (midnight) and 4:00 a.m. ET shall be transmitted to the Processor, 
Competing Consolidators, and Self-Aggregators between 4:00 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 4:00 a.m. and 8:00 p.m.
    D. The Processor shall collect, process and disseminate Quotation 
Information in Eligible Securities at other times between 4:00 a.m. and 
9:30 a.m. ET, and after 4:00 p.m. ET, when any Participant or FINRA 
Participant is open for trading, until 8:00 p.m. ET (the ``Additional 
Period''); provided, however, that the national best bid and offer 
quotation will not be disseminated before 4:00 a.m. or after 8:00 p.m. 
ET. Participants that enter Quotation Information or submit Transaction 
Reports to the Processor, Competing Consolidators, and Self-Aggregators 
during the Additional Period shall do so for all Eligible Securities in 
which they enter quotations.

[XII.]XIII. 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.]XIV. 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, Revenue Sharing, and Fees
    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]Administrator shall maintain records of revenues 
generated and development and operating expenditures incurred in 
connection with the Plan. In addition, the [Processor]Administrator 
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.]XV. 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, 
Competing Consolidators, and Self-Aggregators by such Participant and 
disseminated by the Processor, Competing Consolidators, and Self-
Aggregators[ 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

[[Page 67554]]

contribution by the indemnified Participant.

[XV.]XVI. 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 startup 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.]XVII. Modifications to the Plan

    Except as the Plan otherwise provides, 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 Commission or when such 
modification otherwise becomes effective pursuant to Section 11A of the 
Exchange Act and Rule 608 of Regulation NMS.
    In the case of a ``Ministerial Amendment,'' the Chairman of the 
Plan's Operating Committee may modify the Plan by submitting to the 
Commission an appropriate amendment that sets forth the modification, 
provided that the amendment is the subject of advance notice to the 
Participants of not less than 48 hours. Such an amendment shall only 
become effective in accordance with Section 11A of the Exchange Act and 
Rule 608 of Regulation NMS.
    ``Ministerial Amendment'' means an amendment to the Plan that 
pertains solely to any one or more of the following:
    (1) Admitting a new Participant into the Plan;
    (2) changing the name or address of a Participant;
    (3) incorporating a change that the Commission has implemented by 
rule and that requires no conforming language to the text of the Plan 
(e.g., the Commission rule establishing the Advisory Committee);
    (4) incorporating a change (i) that the Commission has implemented 
by rule, (ii) that requires conforming language to the text of the Plan 
(e.g., the Commission rule amending the revenue allocation formula), 
and (iii) that a majority of all Participants has voted to approve;
    (5) incorporating a purely technical change, such as correcting an 
error or an inaccurate reference to a statutory provision, or removing 
language that has become obsolete (e.g., language regarding ITS).

[XVII.]XVIII. Applicability of Securities Exchange Act of 1934

    The rights and obligations of the Participants and of Competing 
Consolidators, Self-Aggregators, 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.]XIX. Operational Issues

    A. Each Participant shall be responsible for collecting and 
validating quotes and last sale reports within its own system prior to 
transmitting this data to the Processor, Competing Consolidators, and 
Self-Aggregators.
    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 nonconforming 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.]XX. 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.]XXI. 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.

[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,

[[Page 67555]]

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.]

[FR Doc. 2021-25748 Filed 11-24-21; 8:45 am]
BILLING CODE 8011-01-P