[Federal Register Volume 75, Number 92 (Thursday, May 13, 2010)]
[Notices]
[Pages 27010-27028]
[FR Doc No: 2010-11435]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-62021; File No. S7-24-89]

Joint Industry Plan; Notice of Filing of Amendment No. 21 to the
Joint Self-Regulatory Organization Plan Governing the Collection,
Consolidation and Dissemination of Quotation and Transaction
Information for Nasdaq-Listed Securities Traded on Exchanges on an
Unlisted Trading Privileges Basis Submitted by the BATS Exchange, Inc.,
Chicago Board Options Exchange, Incorporated, Chicago Stock Exchange,
Inc., Financial Industry Regulatory Authority, Inc., International
Securities Exchange LLC, NASDAQ OMX BX, Inc., NASDAQ OMX PHLX, Inc.,
Nasdaq Stock Market LLC, National Stock Exchange, Inc., New York Stock
Exchange LLC, NYSE Amex, Inc., and NYSE Arca, Inc

April 30, 2010.
    Pursuant to Rule 608 of the Securities Exchange Act of 1934 (the
``Act'') \1\ notice is hereby given that on April 27, 2010,\2\ the
operating committee (``Operating Committee'' or ``Committee'') \3\ of
the Joint Self-Regulatory Organization Plan Governing the Collection,
Consolidation, and Dissemination of Quotation and Transaction
Information for Nasdaq-Listed Securities Traded on Exchanges

on an Unlisted Trading Privilege Basis (``Nasdaq/UTP Plan'' or
``Plan'') filed with the Securities and Exchange Commission
(``Commission'') amendments to the Plan.\4\ These amendments represent
Amendment No. 21 to the Plan and reflect: An update of the names and
addresses of certain Participants; the merger of the definition of the
Plan's transaction reporting system with the definition of the Plan's
quotation system under the term ``Nasdaq Systems;'' the introduction of
a capacity planning process into the Plan and the allocation among the
Participants of the costs associated with their capacity needs; the
deletion from the Plan of an outdated telephone-access requirement; the
incorporation into the Plan of the existing fees applicable to
Quotation Information and Transaction Reports disseminated pursuant to
the Plan; the removal from the Plan of the provisions governing the
right of Participants to direct the Plan processor to create and make
available depth-of-book displays; the incorporation into the Plan of
the existing practice of compensating FINRA for the FINRA data that the
Participants include in the information that they make available under
the Plan; and, miscellaneous non-substantive corrections to the
existing language of the Plan. Amendment No. 21 was unanimously
approved by the Committee.\5\ The Commission is publishing this notice
of filing to solicit comments from interested persons on Amendment No.
21.\6\
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    \1\ 17 CFR 242.608.
    \2\ As originally submitted, the Amendment did not have all the
required signatures. The Commission received the missing signature
on April 27, 2010.
    \3\ The Plan Participants (collectively, ``Participants'') are
the: BATS Exchange, Inc. (``BATS''); Chicago Board Options Exchange,
Incorporated (``CBOE''); Chicago Stock Exchange, Inc. (``CHX'');
Financial Industry Regulatory Authority, Inc. (``FINRA'');
International Securities Exchange LLC (``ISE''); NASDAQ OMX BX, Inc.
(``BX''); NASDAQ OMX PHLX, Inc. (``PHLX''); Nasdaq Stock Market LLC
(``Nasdaq''); National Stock Exchange, Inc. (``NSX''); New York
Stock Exchange LLC (``NYSE''); NYSE Amex, Inc. (``NYSEAmex''); and
NYSE Arca, Inc. (``NYSEArca'').
    \4\ The Plan governs the collection, processing, and
dissemination on a consolidated basis of quotation information and
transaction reports in Eligible Securities for each of its
Participants. This consolidated information informs investors of the
current quotation and recent trade prices of Nasdaq securities. It
enables investors to ascertain from one data source the current
prices in all the markets trading Nasdaq securities. The Plan serves
as the required transaction reporting plan for its Participants,
which is a prerequisite for their trading Eligible Securities. See
Securities Exchange Act Release No. 55647 (April 19, 2007) 72 FR
20891 (April 26, 2007).
    \5\ See letter from Thomas P. Knorring, Chairman, OTC/UTP
Operating Committee, to Elizabeth Murphy, Secretary, Commission,
dated February 26, 2010.
    \6\ The complete text of the Plan, as amended by Amendment No.
21, is attached as Exhibit A.
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I. Rule 608(a) of Regulation NMS

A. Purposes of the Amendment

1. Update of Participant Information
    The Participants propose to amend the Plan to reflect changes in
the corporate names and street addresses of BX, PHLX, and NYSEAmex.
2. Merger of Definitions
    The Participants believe that merging the definition of the Plan's
transaction reporting system with the definition of the Plan's
quotation system under the term ``Nasdaq Systems'' will simplify the
language of the Plan and make it easier to follow.
3. Capacity Planning Process
    The amendments seek to introduce a capacity planning process into
the Plans. The proposed capacity planning process requires each
Participant to submit its projected capacity needs directly to the
Plan's Processor. The process avoids any need for Participants to share
their individual capacity needs with one another. The Processor will
provide each Participant with aggregate capacity projections for all
Participants, but will not share any individual Participant's capacity
projections with any other Participant. Under the proposed plan:
    a. Semi-Annual Planning Cycles.
    i. The Participants will engage in the capacity planning process on
a semi-annual basis. (In addition to the semi-annual capacity planning
process, the Processor may recommend to the Operating Committee
emergency planning cycles as may be reasonably necessary.) At the start
of each semi-annual capacity planning cycle, the Processor will
determine and inform each Participant of the total amount of system
capacity currently available and each Participant will develop and
submit to the Processor an initial set of projected capacity needs.
    ii. Once it receives all of the initial sets of projected capacity
needs, the Processor will aggregate the initial projected capacity
requirements for all of the Participants and will notify each
Participant as to:
    (1) The initial aggregate capacity projections for all
Participants;
    (2) The percentage of capacity requirements attributable to that
Participant; and,
    (3) The amount of any projected excess capacity or any projected
deficit capacity.
    (The Processor determines the excess or deficit by comparing the
capacity that the then existing systems under the Plan can provide and
the aggregate projected capacity needs of the Participants.)
    iii. Each Participant will then notify the Processor of its final
projected capacity needs.
    iv. Based on the information that the Processor provides, the
Operating Committee will determine and advise the Processor of any
increase or decrease that they propose to make to the capacity of the
systems. However, in directing the Processor to make any proposed
change, the Participants must cause the system to have no less capacity
than the capacity necessary to meet the aggregate projected capacity
requirements for the system for all Participants.
    v. The Processor will then submit to each Participant a written
proposal for increasing or decreasing total system capacity and each
Participant's proportionate share of the estimated costs for
implementing any change. Each Participant's proportionate share of the
costs will reflect that Participant's percentage of the final projected
capacity requirements for all Participants.
    vi. The Processor will bill each Participant directly and each
Participant will pay the Processor for the services that the Processor
renders to it. The cost of the services for each Participant will be
its proportionate share of the total cost to all of the Participants.
    vii. Each Participant will be entitled to use its proportionate
share of the final capacity requirements of all Participants and, at no
extra cost, of any excess capacity. If the Processor determines that a
Participant is using more than its proportionate share of the aggregate
capacity and the excess capacity, that Participant may be subject to a
fine. The proceeds from any such fine will be distributed to each of
the other Participants in accordance with their proportionate shares.
    b. Intra-Cycle Capacity Transfers.
    i. In between the semi-annual capacity planning cycles, a
Participant may seek to increase or decrease the amount of capacity
available to it by notifying the Processor of its desire for more or
less capacity. Under those circumstances, a Participant may purchase
additional capacity only if another Participant has submitted to the
Processor an unfilled request to sell a portion of its capacity or if
excess capacity exists in the system at that time. A Participant may
sell some of its capacity only if another Participant has submitted to
the Processor an unfilled request to purchase additional capacity.
    ii. If the Processor is able to match Participants' requests to buy
and sell capacity within a planning cycle, the Processor will effect
the sale for the Participants without revealing either Participants'
identity.
    iii. If a Participant determines to acquire available excess
capacity, the Processor shall adjust each Participant's proportionate
share of system costs based on the new amount of capacity available to
the Participant acquiring the available excess capacity.

    c. Non-Disclosure.
    Under this plan, the Processor will not disclose to any
Participant: the initial or final projected capacity requirements of
any other Participant; the percentage of the aggregate amount of
capacity attributable to any other Participant; or any other
Participant's between-planning-cycles request to increase or decrease
capacity.
4. Deletion of Telephone Access Requirement
    In adopting Regulation NMS under the Act, the Commission required
each Participant to provide for fair and efficient order-execution
access to quotations in each security displayed through its trading
facility.\7\
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    \7\ See 17 CFR 242.610.
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    Section IX (Market Access) of the Nasdaq/UTP Plan cites this
requirement and provides a ``safe harbor'' to assure compliance while
each Participant adopted such systems and other changes as might be
necessary to allow it to comply with the fair-and-efficient-access
requirement. Specifically, Section IX requires Participants to permit
each FINRA market participant to have direct telephone access to the
specialist, trading post, market maker and supervisory center in the
securities that trade on that Participant unless the Participant
complies with the fair-and-efficient-access requirements of Regulation
NMS.
    Because the Participants have now had sufficient time to comply
with the fair-and-efficient-access requirements of Regulation NMS, the
direct-telephone-access requirement has become outdated and the
Participants feel it is no longer necessary. For that reason, the
Participants propose to delete the direct-telephone-access requirement
from Section IX.
5. Incorporation of Existing Fees
    In order to increase the transparency of the fees that the
Participants impose under the Nasdaq/UTP Plan for the receipt and use
of Quotation Information and Transaction Reports that the Participants
disseminate pursuant to the Plan, the Participants propose to add a new
Exhibit 2 to the Nasdaq/UTP Plan. Exhibit 2 would reflect the fees for
services under the Nasdaq/UTP Plan. Although those fees (other than the
cable television distribution fees) are currently reflected in the
rulebook of Nasdaq, the Participants believe that moving them to the
Nasdaq/UTP Plan will make it easier for recipients of Plan data to
locate them.
    Specifically:
    (i) The usage fees for UTP Level 1 Service set forth in current
Nasdaq Rule 7011 (for professional and nonprofessional subscribers)
will appear verbatim as subsections (a) and (b) of proposed Exhibit 2;
    (ii) The automated voice response service fee set forth in current
Nasdaq Rule 7020 will appear verbatim as subsection (c) of proposed
Exhibit 2;
    (iii) The ``per query'' fee for the UTP Level 1 entitlement set
forth in current Nasdaq Rule 7028 will appear verbatim as subsection
(d) of proposed Exhibit 2; and,
    (iv) The annual administrative fee set forth in current Nasdaq Rule
7019(a) will be modified to refer to the UTP Level 1 entitlement and
will appear as subsection (f) of proposed Exhibit 2.
    In addition, subsection (e) of proposed Exhibit 2 would codify the
current pricing for distribution of the UTP Level 1 service via cable
television, pricing that Nasdaq first established in 1997.\8\
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    \8\ The monthly charge for distribution of UTP Level 1 Service
through a cable television distribution system is currently as
follows:
    First 10 million Subscriber Households $2.00 per 1,000
households.
    Next 10 million Subscriber Households $1.00 per 1,000
households.
    For Subsequent Subscriber Households $0.50 per 1,000 households.
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6. Removal of ``Depth-of-Book Displays'' Provision
    Section XXI (Depth of Book Display) of the Nasdaq/UTP Plan
currently affords each Participant the opportunity to seek to have the
Processor under the Plan collect, consolidate, and disseminate that
Participant's depth-of-book quotation information, so long as doing so
would not interfere with the Plan's core functionality. Because none of
the Participants has demonstrated interest in pursuing such a product
through the Plan and because several Participants have pursued the
creation and dissemination of their own proprietary depth-of-book
products outside of the Plan, the Participants propose to delete
Section XXI from the Plan.
7. FINRA Compensation
    For some time, the fees that the Participants charge for the
receipt and use of quotation and transaction information for Nasdaq-
listed securities under the Nasdaq/UTP Plan have also entitled data
recipients to receive and use quotation and last sale information
relating to over-the-counter securities. Historically, the Nasdaq/UTP
Participants have compensated FINRA for the value represented by its
quotation and last sale information relating to over-the-counter
securities by allocating to FINRA 6.25 percent of gross revenues
collected under the Nasdaq/UTP Plan for any particular calendar year.
(The allocation is made prior to subtracting the Processor's costs and
the Administrator's costs from gross revenue.)
    In the interests of transparency, the Participants propose to add
to Exhibit 1 to the Nasdaq/UTP Plan a specific reference to this FINRA
allocation for the receipt and use of quotation and last sale
information relating to over-the-counter securities.
8. Non-Substantive Changes
    In the interests of ``cleaning up'' certain Nasdaq/UTP Plan
language, the Participants propose to make certain non-substantive
clarifications and corrections to make the Plan more easily understood
and to fix typographical and grammatical errors and the like.

B. Governing or Constituent Documents

    The amendments do not affect the governing or constituent documents
of the Processor. However, in connection with the Participants'
proposed capacity planning process, the Participants have proposed to
adopt Exhibit 3 (``UTP Capacity Planning Process'') to the Nasdaq/UTP
Plan to govern, in part, the rights and obligations of the Processor
under the proposed capacity planning process. In addition, Attachment 1
to Exhibit 3 provides a ``Processor Capacity Planning Process
Calendar'' and Attachment 2 to Exhibit 3 sets Processor-administered
penalties for Participants that exceed their proportionate share of
capacity.

C. Implementation of Amendment

    The amendments would take effect upon their approval by the
Commission.

D. Development and Implementation Phases

    The Participants propose to commence to plan for their capacity
needs pursuant to the proposed pay-for-capacity practice with the
capacity planning cycle that will begin in March 2010. They propose to
commence paying for capacity in accordance with the proposed amendments
in July 2010, in conjunction with the completion of the March 2010
planning cycle.

E. Analysis of Impact on Competition

    The proposed amendments do not impose any burden on competition
that is not necessary or appropriate in furtherance of the purposes of
the Exchange Act. The proposed capacity planning process subjects each

Participant to the same terms and conditions for procuring system
capacity under the Plan.

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

    As a result of the amendments, the Participants have agreed in
writing to comply with:
    1. Capacity planning procedures (See proposed Exhibit 3);
    2. Deadlines set forth in a capacity planning calendar (See
proposed Attachment 1 to proposed Exhibit 3); and,
    3. Penalties for exceeding capacity requests (See to the calendar
(See proposed Attachment 1 to proposed Exhibit 3).
    The Participants have no other written understandings or agreements
relating to interpretation of the Plans as a result of the amendments.

G. Approval by Sponsors in Accordance With Plan

    In accordance with Section XVI of the Nasdaq/UTP Plan, each
Participant has agreed to the amendments.

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

    The proposed capacity planning process for use of Nasdaq/UTP Plan
systems is described in detail above.

I. Terms and Conditions of Access

    The proposed capacity planning process for use of Nasdaq/UTP Plan
systems is described in detail above.

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

    Not applicable. The fees and charges that the Participants propose
to incorporate into the Nasdaq/UTP Plan are currently applicable fees
and charges. The Participants are not proposing any new fees or
charges.

K. Method and Frequency of Processor Evaluation

    Not applicable.

L. Dispute Resolution

    Not applicable.

II. Rule 601(a) of Regulation NMS

A. Equity Securities for which Transaction Reports Shall Be Required by
the Plan

    Not applicable.

B. Reporting Requirements

    As described above, the amendments provide a new process pursuant
to which the Participants under the Plans can plan for the capacity
needs of the systems that they use to gather market data from their
respective marketplaces for consolidation and distribution to the
public.

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

    Not applicable.

D. Manner of Consolidation

    Not applicable.

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

    Not applicable.

F. Rules and Procedures Addressed to Fraudulent or Manipulative
Dissemination

    Not applicable.

G. Terms of Access to Transaction Reports

    Not applicable.

H. Identification of Marketplace of Execution

    Not applicable.

III. Solicitation of Comments

    The Commission seeks general comments on Amendment No. 21.
Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposal is
consistent with the Act. Comments may be submitted by any of the
following methods:

Electronic Comments

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

Paper Comments

     Send paper comments in triplicate to Elizabeth M. Murphy,
Secretary, Securities and Exchange Commission, 100 F Street, NE.,
Washington, DC 20549-1090.

All submissions should refer to File Number S7-24-89. This file number
should be included on the subject line if e-mail is used. To help the
Commission process and review your comments more efficiently, please
use only one method. The Commission will post all comments on the
Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml).
Copies of the submission, all written statements with respect to the
proposed Plan amendment that are filed with the Commission, and all
written communications relating to the proposed Plan amendment between
the Commission and any person, other than those that may be withheld
from the public in accordance with the provisions of 5 U.S.C. 552, will
be available for Web site viewing and printing in the Commission's
Public Reference Room on official business days between the hours of 10
a.m. and 3 p.m. Copies of the filing also will be available for Web
site viewing and printing at the Office of the Secretary of the
Committee, currently located at the CBOE, 400 S. LaSalle Street,
Chicago, IL 60605. All comments received will be posted without change;
the Commission does not edit personal identifying information from
submissions. You should submit only information that you wish to make
available publicly. All submissions should refer to File Number S7-24-
89 and should be submitted on or before June 3, 2010.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\9\
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    \9\ 17 CFR 200.30-3(a)(27).
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Florence E. Harmon,
Deputy Secretary.

Exhibit A: Nasdaq UTP Plan Amended and Restated Plan

Amendment No. 21

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

I. Participants

    The Participants include the following:

A. Participants

1. BATS Exchange, Inc., 8050 Marshall Drive, Lenexa, Kansas 66214.
2. Chicago Board Options Exchange, Inc., 400 South LaSalle Street, 26th
Floor, Chicago, Illinois 60605.
3. Chicago Stock Exchange, 440 South LaSalle Street, Chicago, Illinois
60605.
4. Financial Industry Regulatory Authority, Inc., 1735 K Street, NW.,
Washington, DC 20006.
5. International Securities Exchange, LLC, 60 Broad Street, New York,
New York 10004.
6. NASDAQ OMX BX, Inc., One Liberty Plaza, New York, New York 10006.
7. NASDAQ OMX PHLX, Inc., 1900 Market Street, Philadelphia,
Pennsylvania 19103.

8. National Stock Exchange, Inc., 101 Hudson, Suite 1200, Jersey City,
NJ 07302.
9. New York Stock Exchange LLC, 11 Wall Street, New York, New York
10005.
10. NYSE Amex LLC, 20 Broad Street, New York, New York 10005.
11. NYSE Arca, Inc., 100 South Wacker Drive, Suite 1800, Chicago, IL
60606.
12. The Nasdaq Stock Market LLC, 1 Liberty Plaza, 165 Broadway, New
York, NY 10006.

B. Additional Participants

    Any other national securities association or national securities
exchange, in whose market Eligible Securities become traded, may become
a Participant, provided that said organization executes a copy of this
Plan, provides to the Processor its Projected Processor Capacity
Requirements, as specified in Exhibit 3, 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. The Participants commenced
publication of Quotation Information and Transaction Reports on
Eligible Securities as contemplated by this Plan on July 12, 1993.
    It is expressly understood that each Participant shall be
responsible for the collection of Quotation Information and Transaction
Reports within its market and that nothing in this Plan shall be deemed
to govern or apply to the manner in which each Participant does so.

III. Definitions

    A. ``Current'' means, with respect to Transaction Reports or
Quotation Information, such Transaction Reports or Quotation
Information during the fifteen (15) minute period immediately following
the initial transmission thereof by the Processor.
    B. ``Eligible Security'' means any Nasdaq Global Market or Nasdaq
Capital Market security, as defined in NASDAQ Rule 4200. Eligible
Securities under this Nasdaq UTP Plan shall not include any security
that is defined as an ``Eligible Security'' within Section VII of the
Consolidated Tape Association Plan.
    A security shall cease to be an Eligible Security for purposes of
this Plan if: (i) The security does not substantially meet the
requirements from time to time in effect for continued listing on
Nasdaq, and thus is suspended from trading; or (ii) the security has
been suspended from trading because the issuer thereof is in
liquidation, bankruptcy or other similar type proceedings. The
determination as to whether a security substantially meets the criteria
of the definition of Eligible Security shall be made by the exchange on
which such security is listed provided, however, that if such security
is listed on more than one exchange then such determination shall be
made by the exchange on which, the greatest number of the transactions
in such security were effected during the previous twelve-month period.
    C. ``Commission'' and ``SEC'' shall mean the U.S. Securities and
Exchange Commission.
    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. ``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.
    I. ``Nasdaq System'' means collectively the automated quotation
system operated by Nasdaq and 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.
    J. ``UTP Trade Data Feed'' means the service that provides Vendors
and Subscribers with Transaction Reports.
    K. ``Nasdaq Security'' or ``Nasdaq-listed Security'' means any
security listed on the Nasdaq Global Market or Nasdaq Capital Market.
    L. ``News Service'' means a person who receives Transaction Reports
or Quotation Information provided by the Nasdaq System or provided by a
Vendor, on a Current basis, in connection with such person's business
of furnishing such information to newspapers, radio and television
stations and other news media, for publication at least fifteen (15)
minutes following the time when the information first has been
published by the Processor.
    M. ``OTC Montage Data Feed'' means the data stream of information
that provides Vendors and Subscribers with quotations and sizes from
each FINRA Participant.
    N. ``Participant'' means a registered national securities exchange
or national securities association that is a signatory to this Plan.
    O. ``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.
    P. ``Processor'' means the entity selected by the Participants to
perform the processing functions set forth in the Plan.
    Q. ``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 in Eligible Securities
required to be collected and made available to the Processor pursuant
to this Plan.
    R. ``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'').
    S. ``Subscriber'' means a person who receives Current Quotation
Information or Transaction Reports provided by the Processor or
provided by a Vendor, for its own use or for distribution on a non-
Current basis, other than in connection with its activities as a
Vendor.

    T. ``Transaction Reports'' means reports required to be collected
and made available pursuant to this Plan containing the stock symbol,
price, and size of the transaction executed, the Market in which the
transaction was executed, and related information, including a buy/
sell/cross indicator and trade modifiers, reflecting completed
transactions in Eligible Securities.
    U. ``Vendor'' means a person who receives Current Quotation
Information or Transaction Reports provided by the Processor or
provided by a Vendor, in connection with such person's business of
distributing, publishing, or otherwise furnishing such information on a
Current basis to Subscribers, News Services or other Vendors.

IV. Administration of Plan

A. Operating Committee: Composition

    The Plan shall be administered by the Participants through an
operating committee (``Operating Committee''), which shall be composed
of one representative designated by each Participant. Each Participant
may designate an alternate representative or representatives who shall
be authorized to act on behalf of the Participant in the absence of the
designated representative. Within the areas of its responsibilities and
authority, decisions made or actions taken by the Operating Committee,
directly or by duly delegated individuals, committees as may be
established from time to time, or others, shall be binding upon each
Participant, without prejudice to the rights of any Participant to seek
redress from the SEC pursuant to Rule 608 of Regulation NMS under the
Exchange Act or in any other appropriate forum.
    An Electronic Communications Network, Alternative Trading System,
Broker-Dealer or other securities organization (``Organization'') which
is not a Participant, but has an actively pending Form 1 Application on
file with the Commission to become a national securities exchange, will
be permitted to appoint one representative and one alternate
representative to attend regularly scheduled Operating Committee
meetings in the capacity of an observer/advisor. If the Organization's
Form 1 petition is withdrawn, returned, or is otherwise not actively
pending with the Commission for any reason, then the Organization will
no longer be eligible to be represented in the Operating Committee
meetings. The Operating Committee shall have the discretion, in limited
instances, to deviate from this policy if, as indicated by majority
vote, the Operating Committee agrees that circumstances so warrant.
    Nothing in this section or elsewhere within the Plan shall
authorize any person or organization other than Participants, 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 Vendors, Subscribers, News Services and others in
accordance with the provisions of the Plan;
    2. Periodically evaluating the Processor;
    3. Setting the level of fees to be paid by Vendors, Subscribers,
News Services or others for services relating to Quotation Information
or Transaction Reports in Eligible Securities, and taking action in
respect thereto in accordance with the provisions of the Plan;
    4. Determining matters involving the interpretation of the
provisions of the Plan;
    5. Determining matters relating to the Plan's provisions for cost
allocation and revenue-sharing; and
    6. Carrying out such other specific responsibilities as provided
under the Plan.

C. Operating Committee: Voting

    Each Participant shall have one vote on all matters considered by
the Operating Committee.
    1. The affirmative and unanimous vote of all Participants entitled
to vote shall be necessary to constitute the action of the Operating
Committee with respect to:
    a. Amendments to the Plan;
    b. Amendments to contracts between the Processor and Vendors,
Subscribers, News Services and others receiving Quotation Information
and Transaction Reports in Eligible Securities;
    c. Replacement of the Processor, except for termination for cause,
which shall be governed by Section V(B) hereof;
    d. Reductions in existing fees relating to Quotation Information
and Transaction Reports in Eligible Securities; and
    e. Except as provided under Section IV(C)(3) hereof, requests for
system changes; and
    f. All other matters not specifically addressed by the Plan.
    2. With respect to the establishment of new fees or increases in
existing fees relating to Quotation Information and Transaction Reports
in Eligible Securities, the affirmative vote of two-thirds of the
Participants entitled to vote shall be necessary to constitute the
action of the Operating Committee.
    3. The affirmative vote of a majority of the Participants entitled
to vote shall be necessary to constitute the action of the Operating
Committee with respect to:
    a. Requests for system changes reasonably related to the function
of the Processor as defined under the Plan. All other requests for
system changes shall be governed by Section IV(C)(1)(e) hereof.
    b. Interpretive matters and decisions of the Operating Committee
arising under, or specifically required to be taken by, the provisions
of the Plan as written;
    c. Interpretive matters arising under Rules 601 and 602 of
Regulation NMS; and
    d. Denials of access (other than for breach of contract, which
shall be handled by the Processor),
    4. It is expressly agreed and understood that neither this Plan nor
the Operating Committee shall have authority in any respect over any
Participant's proprietary systems. Nor shall the Plan or the Operating
Committee have any authority over the collection and dissemination of
quotation or transaction information in Eligible Securities in any
Participant's marketplace, or, in the case of 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 without a meeting if the representatives of all Participants
entitled to vote consent thereto in writing or other means the
Operating Committee deems acceptable.

E. Advisory Committee

    (a) Formation. Notwithstanding any other provision of this Plan, an
Advisory Committee to the Plan shall be formed and shall function in
accordance with the provisions set forth in this section.
    (b) Composition. Members of the Advisory Committee shall be
selected for two year terms as follows:
    (1) Operating Committee Selections. By affirmative vote of a
majority of the Participants entitled to vote, the Operating Committee
shall select at least one representative from each of the following
categories to be members of the Advisory Committee: (i) A broker-dealer
with a substantial retail investor customer base, (ii) a broker-dealer
with a substantial institutional investor customer base, (iii) an
alternative trade system, (iv) a data vendor, and (v) an investor.
    (2) Participant Selections. Each Participant shall have the right
to select one member of the Advisory Committee. A Participant shall not
select any person employed by or affiliated with any participant or its
affiliates or facilities.
    (c) Function. Members of the Advisory Committee shall have the
right to submit their views to the Operating Committee on Plan matters,
prior to a decision by the Operating Committee on such matters. Such
matters shall include, but not be limited to, any new or modified
product, fee, contract, or pilot program that is offered or used
pursuant to the Plan.
    (d) Meetings and Information. Members of the Advisory Committee
shall have the right to attend all meetings of the Operating Committee
and to receive any information concerning Plan matters that is
distributed to the Operating Committee; provided, however, that the
Operating Committee may meet in executive session if, by affirmative
vote of a majority of the Participants entitled to vote, the Operating
Committee determines that an item of Plan business requires
confidential treatment.

V. Selection and Evaluation of the Processor

A. Generally

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

B. Termination of the Processor for Cause

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

C. Factors To Be Considered in Termination for Cause

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

D. Processor's Right to Appeal Termination for Cause

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

E. Process for Selecting New Processor

    At any time following effectiveness of the Plan, but no later than
upon the termination of the Processor, whether for cause pursuant to
Section IV(C)(1)(c) or V(B) of the Plan or upon the Processor's
resignation, the Operating Committee shall establish procedures for
selecting a new Processor (the ``Selection Procedures''). The Operating
Committee, as part of the process of establishing Selection Procedures,
may solicit and consider the timely comment of any entity affected by
the operation of this Plan. The Selection Procedures shall be
established by a two-thirds

majority vote of the Plan Participants, and shall set forth, at a
minimum:
    1. The entity that will:
    (a) Draft the Operating Committee's request for proposal for bids
on a new processor;
    (b) Assist the Operating Committee in evaluating bids for the new
processor; and
    (c) Otherwise provide assistance and guidance to the Operating
Committee in the selection process.
    2. The minimum technical and operational requirements to be
fulfilled by the Processor;
    3. The criteria to be considered in selecting the Processor; and
    4. The entities (other than Plan Participants) that are eligible to
comment on the selection of the Processor.
    Nothing in this provision shall be interpreted as limiting
Participants' rights under Section IV or Section V of the Plan or other
Commission order.

VI. Functions of the Processor

A. Generally

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

B. Collection and Consolidation of Information

    For as long as Nasdaq is the Processor, the Processor shall be
capable of receiving Quotation Information and Transaction Reports in
Eligible Securities from Participants by the Plan-approved, Processor
sponsored interface, and shall consolidate and disseminate such
information via the UTP Quote Data Feed, the UTP Trade Data Feed, and
the OTC Montage Data Feed to Vendors, Subscribers and News Services.

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 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 Web site.

F. Capacity Planning

    1. The Processor shall provide computer and communications facility
capacity in accordance with a capacity planning process set forth in
Exhibit 3, which process may be modified by the

Operating Committee from time to time, requiring a simple majority
vote.
    2. The Processor shall establish information barriers to ensure
that information revealed by any Plan Participant to the Processor
during the capacity planning process is not shared with any other Plan
Participant, including Nasdaq, other than information that is
aggregated for all Plan Participants.
    3. Plan Participants shall cooperate fully in the capacity planning
process including complying with all requirements set forth in Exhibit
3.

VII. Administrative Functions of the Processor

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

VIII. Transmission of Information to Processor by Participants

A. Quotation Information

    Each Participant shall, during the time it is open for trading be
responsible promptly to collect and transmit to the Processor accurate
Quotation Information in Eligible Securities through any means
prescribed herein.
    Quotation Information shall include:
    1. Identification of the Eligible Security, using the Nasdaq
Symbol;
    2. The price bid and offered, together with size;
    3. The 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
    5. Through appropriate codes and messages, withdrawals and similar
matters.

B. Transaction Reports

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

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

    The following symbols shall be used to denote the marketplaces:

------------------------------------------------------------------------
                 Code                              Participant
------------------------------------------------------------------------
A.....................................  NYSE Amex LLC.
Z.....................................  BATS Exchange, Inc.
B.....................................  NASDAQ OMX BX, Inc.
W.....................................  Chicago Board Options Exchange,
                                         Inc.
M.....................................  Chicago Stock Exchange, Inc.
I.....................................  International Securities
                                         Exchange, LLC.
D.....................................  Financial Industry Regulatory
                                         Authority, Inc.
Q.....................................  Nasdaq Stock Market LLC.
C.....................................  National Stock Exchange, Inc.
N.....................................  New York Stock Exchange LLC.
P.....................................  NYSE Arca, Inc.
X.....................................  Nasdaq OMX PHLX, Inc.
------------------------------------------------------------------------

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

IX. Market Access

    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.

X. Regulatory Halts

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

approval among those Participants actively trading impacted Eligible
Securities, the Listing Market may determine based on the facts and
circumstances, including available input from Participants, to declare
an Extraordinary Market Regulatory Halt in the affected Eligible
Securities. Simultaneously with the notification of the Processor to
suspend the dissemination of quotations across all Participants, the
Listing Market must notify all Participants of the trading halt
utilizing the Hoot-n-Holler system.
    g. Absent any evidence of system misuse or malfunction, best
efforts will be used to ensure that trading is not halted across all
Participants.
    2. If the Listing Market declares a Regulatory Halt in
circumstances other than pursuant to Section X.E.1.f., the Listing
Market must, simultaneously with the notification of the Processor to
suspend the dissemination of quotations across all Participants, notify
all Participants of the trading halt utilizing the Hoot-n-Holler
system.
    F. If the Listing Market declares a Regulatory Halt, trading will
resume according to the following procedures:
    1. Within 15 minutes of the declaration of the halt, all
Participants will make best efforts to indicate via the Hoot-n-Holler
their intentions with respect to canceling or modifying transactions.
    2. All Participants will disseminate to their members information
regarding the canceled or modified transactions as promptly as
possible, and in any event prior to the resumption of trading.
    3. After all Participants have met the requirements of Section
X.F.1-2, the Listing Market will notify the Participants utilizing the
Hoot-n-Holler and the Processor when trading may resume. Upon receiving
this information, Participants may commence trading pursuant to Section
X.A.

XI. Hours of Operation

    A. Quotation Information may be entered by Participants as to all
Eligible Securities in which they make a market between 9:30 a.m. and 4
p.m. Eastern Time (``ET'') on all days the Processor is in operation.
Transaction Reports shall be entered between 9:30 a.m. and 4:01:30 p.m.
ET by Participants as to all Eligible Securities in which they execute
transactions between 9:30 a.m. and 4:00 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 p.m., ET, shall report such
transactions as follows:
    (i) Transactions in Eligible Securities executed between 4 a.m. and
9:29:59 a.m. ET and between 4:00:01 p.m. 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 p.m. and
before 12 a.m. (midnight) shall be reported to the Processor between
the hours of 4 a.m. and 8 p.m. ET on the next business day (T+1), and
shall be designated ``as/of'' trades to denote their execution on a
prior day, and be accompanied by the time of execution;
    (iii) transactions in Eligible Securities executed between 12 a.m.
(midnight) and 4 a.m. ET shall be transmitted to the Processor between
4 a.m. and 9:30 a.m. ET, on trade date, shall be designated as ``.T''
trades to denote their execution outside normal market hours, and shall
be accompanied by the time of execution;
    (iv) transactions reported pursuant to this provision of the Plan
shall be included in the calculation of total trade volume for purposes
of determining net distributable operating revenue, but shall not be
included in the calculation of the daily high, low, or last sale.
    C. Late trades shall be reported in accordance with the rules of
the Participant in whose Market the transaction occurred and can be
reported between the hours of 4 a.m. and 8 p.m.
    D. The Processor shall collect, process and disseminate Quotation
Information in Eligible Securities at other times between 4 a.m. and
9:30 a.m. ET, and after 4 p.m. ET, when any Participant or FINRA
Participant is open for trading, until 8 p.m. ET (the ``Additional
Period''); provided, however, that the national best bid and offer
quotation will not be disseminated before 4 a.m. or after 8 p.m. ET.
Participants that enter Quotation Information or submit Transaction
Reports to the Processor during the Additional Period shall do so for
all Eligible Securities in which they enter quotations.

XII. Undertaking by All Participants

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

XIII. Financial Matters

A. Development Costs

    Any Participant becoming a signatory to this Plan after June 26,
1990, shall, as 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. The provisions
governing fees applicable to Quotation Information and Transaction
Reports disseminated pursuant to the Plan are set forth in Exhibit 2 to
the Plan.

C. Maintenance of Financial Records

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

XIV. Indemnification

    Each Participant agrees, severally and not jointly, to indemnify
and hold harmless each other Participant, Nasdaq (in its capacity as
Processor), and each of its directors, officers, employees and agents
(including the Operating Committee and its employees and agents) from
and against any and all loss, liability, claim, damage and expense
whatsoever incurred or threatened against such persons as a result of
any Transaction Reports, Quotation Information or other information
reported to the Processor by such Participant and disseminated by the
Processor to Vendors. This indemnity agreement shall be in addition to
any liability that the indemnifying Participant may otherwise have.
    Promptly after receipt by an indemnified Participant of notice of
the

commencement of any action, such indemnified Participant will, if a
claim in respect thereof is to be made against an indemnifying
Participant, notify the indemnifying Participant in writing of the
commencement thereof; but the omission to so notify the indemnifying
Participant will not relieve the indemnifying Participant from any
liability which it may have to any indemnified Participant. In case any
such action is brought against any indemnified Participant and it
promptly notifies an indemnifying Participant of the commencement
thereof, the indemnifying Participant will be entitled to participate
in, and, to the extent that it may wish, jointly with any other
indemnifying Participant similarly notified, to assume and control the
defense thereof with counsel chosen by it. After notice from the
indemnifying Participant of its election to assume the defense thereof,
the indemnifying Participant will not be liable to such indemnified
Participant for any legal or other expenses subsequently incurred by
such indemnified Participant in connection with the defense thereof but
the indemnified Participant may, at its own expense, participate in
such defense by counsel chosen by it without, however, impairing the
indemnifying Participant's control of the defense. The indemnifying
Participant may negotiate a compromise or settlement of any such
action, provided that such compromise or settlement does not require a
contribution by the indemnified Participant.

XV. Withdrawal

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

XVI. Modifications to the Plan

    The Plan may be modified from time to time when authorized by the
agreement of all of the Participants, subject to the approval of the
SEC or when such modification otherwise becomes effective pursuant to
Section 11A of the Exchange Act and Rule 608 of Regulation NMS.

XVII. Applicability of Securities Exchange Act of 1934

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

XVIII. Operational Issues

    A. Each Participant shall be responsible for collecting and
validating quotes and last sale reports within its own system prior to
transmitting this data to the Processor.
    B. Each Participant may utilize a dedicated Participant line into
the Processor to transmit trade and quote information in Eligible
Securities to the Processor. The Processor shall accept from Exchange
Participants input for only those issues that are deemed Eligible
Securities.
    C. The Processor shall consolidate trade and quote information from
each Participant and disseminate this information on the Processor's
existing vendor lines.
    D. The Processor shall perform gross validation processing for
quotes and last sale messages in addition to the collection and
dissemination functions, as follows:

1. Basic Message Validation

    (a) The Processor may validate format for each type of message, and
reject 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. Headings

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

XX. Counterparts

    This Plan may be executed by the Participants in any number of
counterparts, no one of which need contain the signature of all
Participants. As many such counterparts as shall together contain all
such signatures shall constitute one and the same instrument.
    IN WITNESS WHEREOF, this Plan has been executed as of the ---- day
of ------------, 2010, by each of the Signatories hereto.
Nyse Amex LLC
By:--------------------------------------------------------------------

NASDAQ OMX BX, INC.
By:--------------------------------------------------------------------

Chicago Board Options Exchange, Inc.
By:--------------------------------------------------------------------

International Securities Exchange, LLC
By:--------------------------------------------------------------------

New York Stock Exchange LLC
By:--------------------------------------------------------------------

NASDAQ OMX PHLX, INC.
By:--------------------------------------------------------------------

Bats Exchange, Inc.
By:--------------------------------------------------------------------

Chicago Stock Exchange, INC.
By:--------------------------------------------------------------------

FINRA
By:--------------------------------------------------------------------

National Stock Exchange, INC.
By:--------------------------------------------------------------------

NYSE ARCA, INC.
By:--------------------------------------------------------------------

The NASDAQ Stock Market LLC
By:--------------------------------------------------------------------

Exhibit 1

    1. Each Participant eligible to receive revenue under the Plan will
receive an annual payment for each calendar year that is equal to the
sum of the Participant's Trading Shares and Quoting Shares, as defined
below, in each Eligible Security for the calendar year. In the event
that total net distributable operating income (as defined below) is
negative, each Participant eligible to receive revenue under the Plan
will receive an annual bill for each calendar year to be determined
according to the same formula (described in this paragraph) for
determining annual payments to eligible Participants. Unless otherwise
stated in this agreement, a year shall run from January 1 to December
31 and quarters shall end on March 31, June 30, September 30, and
December 31. Processor shall endeavor to provide Participants with
written estimates of

each Participant's percentage of total volume within five business days
of month end.
    2. Security Income Allocation. The Security Income Allocation for
an Eligible Security shall be determined by multiplying (i) the ``net
distributable operating income'' of this Nasdaq UTP Plan for the
calendar year by (ii) the Volume Percentage for such Eligible Security
(the ``initial allocation''), and then adding or subtracting any
amounts specified in the reallocation set forth below. The Volume
Percentage for an Eligible Security shall be determined by dividing (A)
the square root of the dollar volume of transaction reports
disseminated by the Processor in such Eligible Security during the
calendar year by (B) the sum of the square roots of the dollar volume
of transaction reports disseminated by the Processor in each Eligible
Security during the calendar year. If the initial allocation of net
distributable operating income in accordance with the Volume Percentage
of an Eligible Security equals an amount greater than $4.00 multiplied
by the total number of qualified transaction reports in such Eligible
Security during the calendar year, the excess amount shall be
subtracted from the initial allocation for such Eligible Security and
reallocated among all Eligible Securities in direct proportion to the
dollar volume of transaction reports disseminated by the Processor in
Eligible Securities during the calendar year. A transaction report with
a dollar volume of $5000 or more shall constitute one qualified
transaction report. A transaction report with a dollar volume of less
than $5000 shall constitute a fraction of a qualified transaction
report that equals the dollar volume of the transaction report divided
by $5000.
    3. Trading Share. The Trading Share of a Participant in an Eligible
Security shall be determined by multiplying (i) an amount equal to
fifty percent of the Security Income Allocation for the Eligible
Security by (ii) the Participant's Trade Rating in the Eligible
Security. A Participant's Trade Rating in an Eligible Security shall be
determined by taking the average of (A) the Participant's percentage of
the total dollar volume of transaction reports disseminated by the
Processor in the Eligible Security during the calendar year, and (B)
the 25 Participant's percentage of the total number of qualified
transaction reports disseminated by the Processor in the Eligible
Security during the calendar year.
    4. Quoting Share. The Quoting Share of a Participant in an Eligible
Security shall be determined by multiplying (A) an amount equal to
fifty percent of the Security Income Allocation for the Eligible
Security by (B) the Participant's Quote Rating in the Eligible
Security. A Participant's Quote Rating in an Eligible Security shall be
determined by dividing (A) the sum of the Quote Credits earned by the
Participant in such Eligible Security during the calendar year by (B)
the sum of the Quote Credits earned by all Participants in such
Eligible Security during the calendar year. A Participant shall earn
one Quote Credit for each second of time (with a minimum of one full
second) multiplied by dollar value of size that an automated best bid
(offer) transmitted by the Participant to the Processor during regular
trading hours is equal to the price of the national best bid (offer) in
the Eligible Security and does not lock or cross a previously displayed
automated quotation. An automated bid (offer) shall have the meaning
specified in Rule 600 of Regulation NMS of the Act for an ``automated
quotation.'' The dollar value of size of a quote shall be determined by
multiplying the price of a quote by its size.
    5. For purposes of this Exhibit 1, net distributable operating
income for any particular calendar year shall be calculated by adding
all revenues from the UTP Quote Data Feed, the UTP Trade Data Feed, and
the OTC Montage Data Feed including revenues from the dissemination of
information respecting Eligible Securities to foreign marketplaces, and
also including FINRA quotation data and last sale information for
securities classified as OTC Equity Securities under FINRA's Rule 6400
Series (the ``FINRA OTC Data'') (collectively, ``the Data Feeds''), and
subtracting from such revenues 6.25% to compensate FINRA for the FINRA
OTC Data, after which are subtracted the costs incurred by the
Processor, set forth below, in collecting, consolidating, validating,
generating, and disseminating the Data Feeds. These costs include,\10\
but are not limited to, the following:
---------------------------------------------------------------------------

    \10\ All costs associated with collecting, consolidating,
validating, generating, and disseminating the FINRA OTC Data are
borne directly by FINRA and not the Plan and the Participants. Such
costs are established in and subject to a separate bilateral
contractual agreement between FINRA and the Processor (acting as
FINRA's vendor in this capacity). The Processor is responsible for
insuring that no costs associated with the FINRA OTC Data are
incorporated with the costs incurred by the Processor on behalf of
the UTP Plan.
---------------------------------------------------------------------------

    a. The Processor costs directly attributable to creating OTC
Montage Data Feed, including:
    1. Cost of collecting Participant quotes into the Processor's quote
engine;
    2. Cost of processing quotes and creating OTC Montage Data Feed
messages within the Processor's quote engine;
    3. Cost of the Processor's communication management subsystem that
distributes OTC Montage Data Feed to the market data vendor network for
further distribution.
    b. The costs directly attributable to creating the UTP Quote Data
Feed, including:
    1. The costs of collecting each Participant's best bid, best offer,
and aggregate volume into the Processor's quote engine and, in the case
of FINRA, the costs of identifying the FINRA Participant(s) that
constitute FINRA's Best Bid and Offer quotations;
    2. Cost of calculating the national best bid and offer price within
the Processor's quote engine;
    3. Cost of creating the UTP Quote Data Feed message within the
Processor's quote engine;
    4. Cost of the Processor's communication management subsystem that
distributes the UTP Quote Data Feed to the market data vendors'
networks for further distribution.
    c. The costs directly attributable to creating the UTP Trade Data
Feed, including:
    1. The costs of collecting each Participant's last sale and volume
amount into the Processor's quote engine;
    2. Cost of determining the appropriate last sale price and volume
amount within the Processor's trade engine;
    3. Cost of utilizing the Processor's trade engine to distribute the
UTP Trade Data Feed for distribution to the market data vendors;
    4. Cost of the Processor's communication management subsystem that
distributes the UTP Trade Data Feed to the marker data vendors'
networks for further distribution.
    d. The additional costs that are shared across all Data Feeds,
including:
    1. Telecommunication Operations costs of supporting the Participant
lines into the Processor's facilities;
    2. Telecommunications Operations costs of supporting the external
market data vendor network;
    3. Data Products account management and auditing function with the
market data vendors;
    4. Market Operations costs to support symbol maintenance, and other
data integrity issues;
    5. Overhead costs, including management support of the Processor,
Human Resources, Finance, Legal, and Administrative Services; and

    6. Costs of establishing and supporting the Security Income
Allocation System.
    e. Processor costs excluded from the calculation of net
distributable operating income include trade execution costs for
transactions executed using a Nasdaq service and trade report
collection costs reported through a Nasdaq service, as such services
are market functions for which Participants electing to use such
services pay market rate.
    f. For the purposes of this provision, the following definitions
shall apply:
    1. ``Quote engine'' shall mean the Nasdaq's NT or Tandem system
that is operated by Nasdaq to collect quotation information for
Eligible Securities;
    2. ``Trade engine'' shall mean the Nasdaq Tandem system that is
operated by Nasdaq for the purpose of collecting last sale information
in Eligible Securities.
    6. At the time a Participant implements a Processor-approved
electronic interface with the Processor, the Participant will become
eligible to receive revenue.
    7. Processor shall endeavor to provide Participants with written
estimates of each Participant's quarterly net distributable operating
income within 45 calendar days of the end of the quarter, and estimated
quarterly payments or billings shall be made on the basis of such
estimates. All quarterly payments or billings shall be made to each
eligible Participant within 45 days following the end of each calendar
quarter in which the Participant is eligible to receive revenue,
provided that each quarterly payment or billing shall be reconciled
against a Participant's cumulative year-to-date payment or billing
received to date and adjusted accordingly, and further provided that
the total of such estimated payments or billings shall be reconciled at
the end of each calendar year and, if necessary, adjusted by March 31st
of the following year. Interest shall be included in quarterly payments
and in adjusted payments made on March 31st of the following year. Such
interest shall accrue monthly during the period in which revenue was
earned and not yet paid and will be based on the 90-day Treasury bill
rate in effect at the end of the quarter in which the payment is made.
Monthly interest shall start accruing 45 days following the month in
which it is earned and accrue until the date on which the payment is
made.
    In conjunction with calculating estimated quarterly and reconciled
annual payments under this Exhibit 1, the Processor shall submit to the
Participants a quarterly itemized statement setting forth the basis
upon which net operating income was calculated, including a quarterly
itemized statement of the Processor costs set forth in Paragraph 3 of
this Exhibit. Such Processor costs and Plan revenues shall be adjusted
annually based solely on the Processor's quarterly itemized statement
audited pursuant to Processor's annual audit. Processor shall pay or
bill Participants for the audit adjustments within thirty days of
completion of the annual audit. By majority vote of the Operating
Committee, the Processor shall engage an independent auditor to audit
the Processor's costs or other calculation(s), the cost of which audit
shall be shared equally by all Participants. The Processor agrees to
cooperate fully in providing the information necessary to complete such
audit.

Exhibit 2

Fees for UTP Services

    (a) Level 1 Service.
    The charge for each interrogation device receiving UTP Level 1
Service is $20.00 per month. This Service includes the following data:
    (1) Inside bid/ask quotations calculated for securities listed in
The Nasdaq Stock Market;
    (2) Last sale information on Nasdaq-listed securities
    UTP Level 1 Service also includes FINRA OTC Data.
    (b) Non-Professional Services.
    (1) The charge for distribution of UTP Level 1 Service to a non-
professional subscriber shall be $1.00 per interrogation device per
month.
    (2) A ``non-professional'' is a natural person who is neither:
    (A) Registered or qualified in any capacity with the Commission,
the Commodities Futures Trading Commission, any state securities
agency, any securities exchange or association or any commodities or
futures contract market or association;
    (B) Engaged as an ``investment adviser'' as that term is defined in
Section 202(a)(11) of the Investment Advisors Act of 1940 (whether or
not registered or qualified under that Act); nor
    (C) Employed by a bank or other organization exempt from
registration under federal or state securities laws to perform
functions that would require registration or qualification if such
functions were performed for an organization not so exempt.
    (c) Automated Voice Response Service Fee.
    The monthly charge for distribution of UTP Level 1 Service through
automated voice response services shall be $21.25 for each voice port.
    (d) Per Query Fee.
    The charge for distribution of UTP Level 1 Service through a per
query system shall be $.005 per query.
    (e) Cable Television Ticker Fee.
    The monthly charge for distribution of UTP Level 1 Service through
a cable television distribution system shall be as set forth below:

First 10 million Subscriber    $2.00 per 1,000 households.
 Households.
Next 10 million Subscriber     $1.00 per 1,000 households.
 Households.
For Subsequent Subscriber      $0.50 per 1,000 households.
 Households.

    (f) Annual Administrative Fees.
    The annual administrative fee to be paid by distributor for access
to UTP Level 1 Service shall be as set forth below:

Delayed distributor............................................     $250
0-999 real-time terminals......................................      500
1,000-4,999 real-time terminals................................    1,250
5,000-9,999 real-time terminals................................    2,250
10,000+ real-time terminals....................................    3,750

Exhibit 3

UTP Capacity Planning Process

    This document sets forth a capacity planning process for the
Processor and includes certain procedures to facilitate that process.
The capacity planning process will be done on a semi-annual basis and
will cover the then current six-month period and each of the next two
six-month periods, with each six-month period commencing on January 1st
and July 1st, as appropriate (referred to collectively as the
``Capacity Planning Period''), provided however that, notwithstanding
the foregoing, the first Capacity Planning Period shall cover the then
current six-month period and each of the next two six-month periods.
    All information specified in this document that is required to be
submitted by each of the Participants to the Processor, by the
Processor to each of the Participants, and by the Operating Committee
to the Processor, shall be submitted within the time frames set

forth in the capacity planning process calendar attached hereto as
Attachment 1, which may be modified from time to time by the Operating
Committee.

Projected Processor Capacity Requirements

    Each Participant's ``Projected Processor Capacity Requirements''
shall consist of the following two components:
    1. The projected peak quote/trade messages per second for such
Participant calculated on a 5-second peak (the ``Projected Peak 5-
second MPS''); and
    2. the projected peak total quote/trade transactions per day for
such Participant.
    Each Participant's projected requirements for both of these
components shall include whatever buffer factor the Participant deems
adequate for its needs and shall reflect the Participant's anticipated
requirements as of the beginning of each six-month period in the
applicable Capacity Planning Period.
    Each Participant shall submit to the Processor in writing, which
may include email, an ``initial'' set of Projected Processor Capacity
Requirements as of the beginning of each six-month period in the
applicable Capacity Planning Period. Once the Processor receives the
initial Projected Processor Capacity Requirements from all the
Participants, the Processor will aggregate both components--the
Projected Peak 5-second MPS and the projected peak total transactions
per day--to determine the initial Projected Processor Capacity
Requirements for all Participants. The Processor will notify each
Participant in writing, which may include email, of a) the aggregate
initial Projected Processor Capacity Requirements; and b) the
percentage of the aggregate initial Projected Peak 5-second MPS that is
attributable to such Participant.
    Once each Participant receives the foregoing information, each such
Participant shall submit to the Processor in writing, which may include
email, its final Projected Processor Capacity Requirements. The
Processor will then notify each Participant in writing, which may
include e-mail, of: (a) The aggregate final Projected Processor
Capacity Requirements; and b) the percentage of the aggregate final
Projected Peak 5-second MPS that is attributable to such Participant.
    The Processor will not disclose to any Participant the initial or
final individual capacity projections of any other Participant or the
percentage of the Peak 5-second MPS attributable to any other
Participant.
    In the event that a Participant fails to notify the Processor of
its final Projected Processor Capacity Requirements within the required
time frame, then such Participant's final Projected Processor Capacity
Requirements for: (a) Each six-month period for which the required
notice was not given on a timely basis shall be deemed to be the same
as that for the latest six-month period covered by the Participant's
most recent final Projected Processor Capacity Requirements provided to
the Processor within the required time frame; and b) each six-month
period for which the required notice was previously given on a timely
basis shall remain the same.

Processor System Capacity Changes

    The Processor shall, on a semi-annual basis, determine and inform
each Participant in writing, which may include email, of the total
amount of the then-current system capacity available for each of the
two capacity components--the Peak 5-second MPS and the peak total
transactions per day (referred to as ``Total System Capacity'').
    The Projected Processor Capacity Requirements for all Participants
shall be referred to as the ``Base Capacity.'' The amount, if any, by
which Total System Capacity exceeds Base Capacity, shall be referred to
as ``Excess Capacity.'' The amount, if any, by which Total System
Capacity is less than the Base Capacity shall be referred to as
``Deficit Capacity.'' At the time that the Processor notifies each
Participant of the initial and final aggregate Projected Processor
Capacity Requirements, the Processor shall also determine, based on
such initial and final capacity projections, respectively, and inform
each Participant in writing, which may include email, of, the amount of
any projected Excess Capacity and/or any projected Deficit Capacity at
the beginning of each six-month period in the applicable Capacity
Planning Period.
    On a semi-annual basis, the Operating Committee shall determine and
advise the Processor in writing, which may include email, of any
changes (i.e., increases or decreases) that it proposes be made to the
Total System Capacity, including any required ancillary systems and
network capacity changes (``System Capacity Changes''); provided,
however, that any System Capacity Changes must result in the Total
System Capacity meeting or exceeding Base Capacity. The Processor will
develop a written proposal for System Capacity Changes and submit it to
the Operating Committee, which proposal will include the timeframe and
estimated costs for implementing the System Capacity Changes. If the
Processor's proposal is accepted, such acceptance will be set forth in
the minutes of the applicable Operating Committee meeting. The
Processor will then implement such System Capacity Changes. Such System
Capacity Changes implemented by the Processor may, in the Processor's
discretion reasonably exercised and with the prior approval of the
Operating Committee, result in creating some additional amount of
Excess Capacity.

Emergency Capacity Planning Process

    In addition to the semi-annual capacity planning process described
above, the Processor may recommend to the Operating Committee emergency
planning cycles (``EPC'') as may be reasonably necessary. The Processor
shall submit a recommendation to the Operating Committee detailing the
EPC request and required timeframe for response, via e-mail. The
Operating Committee, at an emergency meeting if necessary, shall
determine whether to approve the request.

Payment for Services

    Each Participant's ``Proportionate Share'' shall be the percentage
of the final Projected Peak 5-second MPS for all Participants that is
attributable to such Participant. A Participant's Proportionate Share
shall remain in effect until the next System Capacity Change is
implemented, provided, however, that such Proportionate Share may
change from time to time in accordance with the provisions set forth in
the following two Sections of this Exhibit. The cost for such services
shall be such Participant's Proportionate Share of the cost of the
services rendered by the Processor to all Participants, unless
otherwise agreed to by the Processor and the Operating Committee. Each
Participant shall be entitled to use its Proportionate Share of the
Base Capacity and the Excess Capacity, if any, at no additional cost.
If, however, the report(s) generated by the Processor setting forth
daily system activity for Participants shows that a Participant's
actual Peak 5-second MPS exceeds such Participant's Proportionate Share
of the Base Capacity and the Excess Capacity, if any, (e.g., via
dynamic throttling) such Participant may be required, in accordance
with the provisions set forth in Attachment 2, which may be modified
from time to time by the Operating Committee, to: a) Pay a penalty to
the Processor in the amount set forth in Attachment 2; and b) increase
its capacity projections in the next Capacity Planning Period to
reflect at least such actual Peak 5-second MPS. Any such penalty shall
be

divided and distributed to each of the other Participants in accordance
with their Proportionate Shares.

Purchase of Capacity

    Without limiting the generality of the foregoing, a Participant may
increase its Proportionate Share of the Base Capacity by purchasing all
or a portion of the ``Available Base Capacity'' (as such term is
defined in Item 1, below) and/or Excess Capacity, if any (collectively
with ``Available Base Capacity, hereinafter referred to as
``Capacity''), subject to the following:
    1. A Participant wishing to purchase Capacity shall advise the
Processor in writing of the amount of Capacity (expressed as UTP 5-
second MPS) it wishes to purchase. A Participant shall only be entitled
to purchase Capacity (and such request shall only be filled) if, and to
the extent that:
    a. There are any currently outstanding unfilled request(s) from
other Participant(s) to decrease Base Capacity (referred to as
``Available Base Capacity''); and/or
    b. There is Excess Capacity.
    Furthermore, all requests to purchase Capacity shall be filled
first through any Available Base Capacity, and second through any
Excess Capacity. All Participant requests to purchase Capacity shall be
filled on a ``first come, first served'' basis.
    2. Within two (2) trading days of receipt of such notice, the
Processor shall confirm the request directly with such Participant. The
Processor shall fill the request if, and to the extent that, there is
sufficient Available Base Capacity and/or Excess Capacity. The
Processor shall then notify all Participants in writing of:
    a. The amount of Available Base Capacity and/or Excess Capacity
that remains, if any; and/or
    b. The amount by which any Participant request(s) to increase
Capacity remains unfilled.
    3. A Participant's request to increase Capacity shall remain
outstanding until filled, or cancelled by such Participant, or the next
System Capacity Change, whichever occurs first. Whenever a request is
cancelled, the Processor shall then notify all Participants in writing
whether, and the extent to which, any Participant request(s) to
increase Capacity remain in effect.
    4. The Processor will not disclose to any other Participant the
Participant(s) that have requested purchasing, and/or that have
purchased, Capacity.
    5. Whenever a Participant purchases Available Base Capacity such
Participant's Proportionate Share of the Base Capacity shall be
increased accordingly, effective on the first trading day that the
Processor implements the requisite technical changes to reflect the
changes in such Participant's Base Capacity. As of such date, the costs
associated, for that Participant, shall be increased to the extent of
the resulting increase in that Participant's Proportionate Share. The
Processor shall notify such Participant of its new Proportionate Share
and the effective date of such change.
    6. Whenever a Participant purchases a portion (or all) of the
Excess Capacity, such Participant's Proportionate Share of the Base
Capacity shall be increased accordingly, effective on the first trading
day that the Processor implements the requisite technical changes to
reflect the changes in such Participant's Base Capacity. As of such
date:
    a. The costs allocated to that Participant shall be increased to
the extent of the resulting increase in that Participant's
Proportionate Share; and
    b. There shall be a corresponding reduction in:
    i. Each of the other Participant's Proportionate Share of the Base
Capacity; and
    ii. The costs allocated to the other Participants shall be
decreased, to the extent of the resulting decrease in each such
Participant's Proportionate Share. The Processor shall notify each
Participant of its new Proportionate Share and the effective date of
such change.

Reduction of Base Capacity

    Without limiting the generality of the foregoing, a Participant may
be entitled to decrease its Proportionate Share by reducing its Base
Capacity, subject to the following:
    1. A Participant wishing to reduce its Base Capacity shall advise
the Processor in writing of the amount of its Base Capacity it wishes
to decrease (which decrease shall be expressed as UTP 5-second MPS). A
Participant shall only be entitled to decrease its Base Capacity (and
such request shall only be filled) if, and to the extent that, there
are any currently outstanding unfilled requests from other
Participant(s) to increase Capacity. All Participant requests to
decrease Base Capacity shall be filled on a ``first come, first
served'' basis.
    2. Within two (2) trading days of receipt of such notice, the
Processor shall confirm the request directly with such Participant. The
Processor shall fill the request if, and to the extent that, there are
any currently outstanding unfilled requests from other Participant(s)
to increase Capacity. The Processor shall then notify all Participants
in writing of:
    a. The amount of Available Base Capacity that remains, if any; and/
or
    b. The amount by which any Participant request(s) to decrease Base
Capacity remain unfilled.
    3. A Participant's request to decrease Base Capacity shall remain
outstanding until filled, or cancelled by such Participant, or the next
System Capacity Change, whichever occurs first. Whenever a request is
cancelled, the Processor shall then notify all Participants in writing
whether, and the extent to which, any Participant request(s) to
decrease Base Capacity remain in effect.
    4. The Processor will not disclose to any other Participant the
Participant(s) that have requested decreasing, and/or that have
decreased, Base Capacity.
    Whenever a Participant reduces its Base Capacity pursuant to this
Section, such Participant's Proportionate Share of the Base Capacity
shall be decreased accordingly, effective on the first trading day that
the Processor implements the requisite technical changes to reflect the
changes in such Participant's Base Capacity. As of such date, the costs
associated, for that Participant, shall be decreased to the extent of
the resulting decrease in that Participant's Proportionate Share. The
Processor shall notify such Participant of its new Proportionate Share
and the effective date of such change.

Attachment 1

                                  Processor Capacity Planning Process Calendar
                                       [Approximately 3.5 Calendar Months]
----------------------------------------------------------------------------------------------------------------
                                                     Duration
        Step No.               Description        (trading days)        Start date               End date
----------------------------------------------------------------------------------------------------------------
1......................  The Processor requests  1                1st trading day in 3rd  1st trading day in 3rd
                          initial capacity                         month of applicable     month of applicable
                          projections from                         Capacity Planning       Capacity Planning
                          Participants via e-                      Period.                 Period.
                          mail.
                        ----------------------------------------------------------------------------------------
2......................  Participants submit     10
                          initial capacity
                          projections to the
                          Processor via e-mail.
                        ----------------------------------------------------------------------------------------
3......................  The Processor advises   5
                          each Participant of
                          initial capacity
                          projections for all
                          Participants, current
                          system capacity, and
                          any projected Excess
                          and/or Deficit
                          Capacity, via e-mail.
                        ----------------------------------------------------------------------------------------
4......................  Participants submit     15
                          final capacity
                          projections to the
                          Processor via e-mail.
                        ----------------------------------------------------------------------------------------
5......................  The Processor advises   5
                          each Participant of
                          final capacity
                          projections for all
                          Participants, current
                          system capacity, and
                          any projected Excess
                          and/or Deficit
                          Capacity, via e-mail.
                        ----------------------------------------------------------------------------------------
6......................  At a meeting of the     5
                          Operating Committee
                          at which the
                          Processor is present,
                          the Operating
                          Committee will
                          determine and then
                          advise the Processor
                          in writing (i.e., by
                          minutes of such
                          meeting) of any
                          System Capacity
                          Changes.
                        ----------------------------------------------------------------------------------------
7......................  The Processor submits   20
                          a proposal to the
                          Operating Committee
                          for System Capacity
                          Changes, including
                          estimated timeframes
                          and costs for
                          implementing them,
                          via e-mail.
                        ----------------------------------------------------------------------------------------
                         The Processor will
                          notify each
                          Participant via e-
                          mail of: a) the
                          aggregate final
                          Projected Processor
                          Capacity
                          Requirements; and b)
                          the percentage of the
                          aggregate final
                          Projected Peak 5-
                          second MPS that is
                          attributable to such
                          Participant.
                        ----------------------------------------------------------------------------------------
8......................  At a meeting of the     10
                          Operating Committee
                          at which the
                          Processor is present,
                          the Operating
                          Committee will decide
                          and then advise the
                          Processor in writing
                          (i.e., by minutes of
                          such meeting) if it
                          accepts the
                          Processor's proposal
                          for System Capacity
                          Changes.
----------------------------------------------------------------------------------------------------------------

Attachment 2

                        UTP Capacity Process--Penalties for Exceeding Proportionate Share
----------------------------------------------------------------------------------------------------------------
             Scenario                   Description            Penalty               Increase projections
----------------------------------------------------------------------------------------------------------------
Participant System Problem/        Participant's actual  None...............  No.
 Recovery.                          peak 5-second MPS
                                    exceeds its
                                    Proportionate Share
                                    for 30 consecutive
                                    seconds
                                    artificially (e.g.,
                                    due to draining of
                                    queued data
                                    following a system
                                    recovery).
Occasional (inconsistent)........  Participant's actual  None...............  No.
                                    peak 5-second MPS
                                    exceeds its
                                    Proportionate Share
                                    for 30 consecutive
                                    seconds on no more
                                    than 2 days during
                                    a month.
Regular..........................  Participant's actual  Participant's        Yes--to be determined
                                    peak 5-Second MPS     penalty will be
                                    exceeds its           calculated and
                                    Proportionate Share   billed according
                                    for 30 consecutive    to the following
                                    seconds on each of    formula:.
                                    3 or more days        (Total MPS
                                    during a month.       in Excess) x
                                                          (Penalty MPS $
                                                          Rate).
                                                         To find the Total
                                                          MPS in Excess for
                                                          any month:.
                                                         1. determine which
                                                          days during the
                                                          month (``Days in
                                                          Excess'') the
                                                          Participant
                                                          exceeded its
                                                          proportionate
                                                          share of MPS for
                                                          30 or more
                                                          consecutive
                                                          seconds (each, a
                                                          ``Period in
                                                          Excess''), whether
                                                          it did so once or
                                                          multiple times on
                                                          any day;

                                                         2. for each Day in
                                                          Excess during a
                                                          month, determine
                                                          that day's
                                                          ``Highest Period
                                                          in Excess''; and
                                                            3. add the
                                                             Participant's
                                                             MPS in excess
                                                             of its
                                                             Proportionate
                                                             Share for each
                                                             Day in Excess'
                                                             Highest Period
                                                             in Excess.
                                                         A day's ``Highest
                                                          Period in Excess''
                                                          refers to the
                                                          Period in Excess
                                                          during which the
                                                          Participant
                                                          exceeded its
                                                          Proportionate
                                                          Share of MPS by
                                                          more than it did
                                                          during the day's
                                                          other Periods in
                                                          Excess.
                                                         To find the Penalty
                                                          MPS $ Rate for any
                                                          month, multiply
                                                          twice the current
                                                          monthly MPS $ rate
                                                          by the percentage
                                                          of trading days
                                                          during the month
                                                          that were Days in
                                                          Excess; that is:
                                                          (2 x current
                                                          monthly MPS $
                                                          rate) x (
                                                          Days in Excess/
                                                           trading
                                                          days in the month).
----------------------------------------------------------------------------------------------------------------
Notes:
1. The Processor reports containing daily/monthly/quarterly activity by Participant will be used to determine if
  any of the above penalty criteria have been met.
2. The Processor will notify a Participant in the event it has been assessed a penalty.
3. Participant penalties will be distributed to the other Participants based on each Participant's Proportionate
  Share.
4. Reports provided by the Processor to the Participants will include the total monthly costs, that
  Participant's Proportionate Share, any penalties to be paid by that Participant, any redistribution of
  penalties paid by other Participant(s) and the number of Participants who paid penalties broken down by Quote
  and Trade separately.
 Participant's Monthly Costs are Total Monthly Costs multiplied by Participant's Proportionate Share.

UTP Capacity Planning

Participant Projected Processor Capacity Requirements--Input Document

Participant Name:------------------------------------------------------
    Initial Projected Requirements:

----------------------------------------------------------------------------------------------------------------
                                Projected peak 5 second MPS            Projected peak total daily transactions
  Period beginning:   ------------------------------------------------------------------------------------------
                             UTP quote              UTP trade              UTP quote              UTP trade
----------------------------------------------------------------------------------------------------------------
                       .....................  .....................  .....................  ....................
----------------------------------------------------------------------------------------------------------------
                       .....................  .....................  .....................  ....................
----------------------------------------------------------------------------------------------------------------
                       .....................  .....................  .....................  ....................
----------------------------------------------------------------------------------------------------------------
                       .....................  .....................  .....................  ....................
----------------------------------------------------------------------------------------------------------------

Approved By:-----------------------------------------------------------
Date Submitted:--------------------------------------------------------
    Final Projected Requirements:

----------------------------------------------------------------------------------------------------------------
                                Projected peak 5 second MPS            Projected peak total daily transactions
  Period beginning:   ------------------------------------------------------------------------------------------
                             UTP quote              UTP trade              UTP quote              UTP trade
----------------------------------------------------------------------------------------------------------------
                       .....................  .....................  .....................  ....................
----------------------------------------------------------------------------------------------------------------
                       .....................  .....................  .....................  ....................
----------------------------------------------------------------------------------------------------------------
                       .....................  .....................  .....................  ....................
----------------------------------------------------------------------------------------------------------------
                       .....................  .....................  .....................  ....................
----------------------------------------------------------------------------------------------------------------

Approved By:-----------------------------------------------------------
Date Submitted:--------------------------------------------------------
[FR Doc. 2010-11435 Filed 5-12-10; 8:45 am]
BILLING CODE 8011-01-P