VOTING TRUST AGREEMENT
This Voting Trust Agreement (this "Agreement") dated as of June 28,
2000, by and among The Nasdaq Stock Market, Inc., a Delaware corporation
("Nasdaq" or the "Company"), the National Association of Securities
Dealers, Inc., a Delaware non-stock corporation (the "NASD"), and The Bank
of New York, a New York banking corporation, as voting trustee (the "Voting
Trustee").
W I T N E S S E T H:
WHEREAS, in accordance with the Warrant Agreement, dated as
of June 28, 2000 (the "Warrant Agreement"), by and among the NASD, The Bank
of New York, a New York banking corporation, as the warrant agent (the
"Warrant Agent"), and the Voting Trustee, certain persons (each, a
"Purchaser" and, collectively, the "Purchasers") have acquired warrants
(the "Warrants") to purchase an aggregate of 25,660,196 shares of the
Company's common stock, par value $.01 per share (the "Common Stock"),
owned and held by the NASD (such shares initially underlying the Warrants
being hereinafter referred to as the "Shares"); and
WHEREAS, pursuant to the provisions of this Agreement and
the Warrant Agreement, upon the execution hereof, the Shares will be
deposited with and transferred to the Voting Trustee by the NASD to be held
in accordance with the provisions of this Agreement.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants contained herein, the parties hereto agree as follows:
Section 1. Creation of Voting Trust. Subject to the terms
and conditions hereof, there is hereby created and established a voting
trust in respect of the Shares to be known as the "Voting Trust." The
Voting Trustee hereby accepts the trust created hereby and agrees to serve
as trustee hereunder. The Company shall promptly file an executed copy of
this Agreement at the registered office of the Company in the State of
Delaware, which copy shall be open to the inspection of any stockholder of
the Company, or any beneficiary of the Voting Trust, daily during business
hours, as provided in Section 218 of the General Corporation Law of the
State of Delaware (the "DGCL").
Section 2. Deposit of Shares. (a) On the date of execution
of this Agreement, the NASD shall transfer and deliver to the Voting
Trustee, to be held by it pursuant to the provisions of this Agreement, the
certificate or certificates representing the Shares, duly endorsed in blank
and accompanied by proper instruments of assignment and transfer as the
Voting Trustee may request duly executed in blank. After the filing of a
copy of this Agreement in the registered office of the Company in the State
of Delaware as provided in Section 1 hereof, each certificate representing
the Shares so transferred to the Voting Trustee shall be surrendered to the
Company and cancelled, and new certificates therefor shall be issued to,
and in the name of, the Voting Trustee or a nominee of the Voting Trustee.
Such certificates shall contain a legend stating that they have been issued
pursuant to this Agreement and that fact shall be noted in the stock ledger
of the Company as required by Section 218 of the DGCL.
(b) All certificates for the Shares at any time delivered to
the Voting Trustee hereunder shall be held by the Voting Trustee under and
pursuant to the terms and conditions of this Agreement. The Voting Trustee
shall not have the authority to, and shall not, sell, transfer, assign,
pledge, hypothecate or otherwise dispose of or encumber the Shares or any
rights therein or thereto, except to the extent otherwise specifically
provided in this Agreement. The Voting Trustee shall have no beneficial
interest in or discretionary authority with respect to the Shares, its
interest being limited solely to that necessary to carry out its
obligations under this Agreement.
Section 3. Voting Trust Arrangements Until Exchange
Registration. Until the Securities and Exchange Commission grants national
securities exchange status under the Securities and Exchange Act of 1934,
as amended, to the Company ("Exchange Registration"), the following
provisions shall apply to the Shares subject to the Voting Trust. The
Company shall notify the Voting Trustee of Exchange Registration promptly
after it occurs.
(a) Upon each valid exercise (each, an "Exercise") of a
Warrant pursuant to the provisions of the Warrant Agreement, the Voting
Trustee shall, upon the request of the Warrant Agent pursuant to Section 7
of the Warrant Agreement, promptly deliver to the transfer agent for the
Common Stock (the "Transfer Agent") a notice (which shall include a copy of
the form of election to purchase (the "Purchase Form"), as executed by or
on behalf of the exercising holder of the Warrant (the "Warrant Holder"))
of such Exercise, and a request that the Transfer Agent make an appropriate
notation in its records of the shares of Common Stock or other securities
purchased (such shares being hereinafter referred to as "Purchased Shares")
pursuant to such Exercise.
(b) Upon receiving confirmation from the Transfer Agent that
it has made a notation of Exercise pursuant to Section 3(a) hereof, the
Voting Trustee shall cause a voting trust certificate (each, a "Voting
Trust Certificate"), to be issued in the form attached hereto as Exhibit A,
representing such Purchased Shares in the name or names designated by the
exercising Warrant Holder in the Purchase Form (such named person being
hereinafter referred to as the "Beneficial Owner").
(c) Within two (2) business days (which shall mean for the
purposes of this Agreement each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in the City of New
York are authorized or obligated by law to close) of receiving a Warrant
Expiration Notice (as defined in the Warrant Agreement) from the Warrant
Agent, the Voting Trustee shall cause the release ("Release") of the number
of Shares specified in such notice from the Voting Trust and shall promptly
cause the Transfer Agent to deliver to the NASD the certificates
representing such Shares, duly endorsed for transfer, or with duly executed
stock powers attached, and shall take all such other actions as are
appropriate, or as the NASD may reasonably request, to cause the transfer
of such Shares, together with all other property relating to or allocable
to such Shares and held by the Voting Trustee pursuant to the provisions of
this Agreement, to the NASD. Each Release shall terminate the provisions of
this Agreement with respect to the Shares that are the subject of such
Release.
Section 4. Voting Trust Arrangements Upon Exchange
Registration. Upon Exchange Registration, the following provisions shall
apply to the Shares subject to the Voting Trust.
(a) Promptly after receiving notice of Exchange Registration
from the Company, the Voting Trustee shall notify each holder of a Voting
Trust Certificate of the occurrence of Exchange Registration and directing
such holder to surrender its Voting Trust Certificate to the Voting Trustee
at its office in the Borough of Manhattan, the City of New York, State of
New York (the "Voting Trustee Office"). Within two (2) business days of the
surrender to the Voting Trustee at the Voting Trustee Office of the Voting
Trust Certificate representing such Purchased Shares by the Beneficial
Owner thereof, and payment in full of any fees and expenses of the Voting
Trustee then outstanding in respect of such Purchased Shares by such
Beneficial Owner, the Voting Trustee shall cause to be delivered promptly
to such Beneficial Owner the certificates representing the appropriate
number of Purchased Shares, duly endorsed for transfer by the Voting
Trustee, or with duly executed stock powers attached, and shall take all
such other actions as are appropriate, or as the NASD may reasonably
request, to cause the transfer of such Purchased Shares, together with all
other property relating to or allocable to such Purchased Shares and held
by the Voting Trustee for the benefit of the Beneficial Owner thereof
pursuant to this Agreement and the Warrant Agreement, to such Beneficial
Owner. Upon delivery of the certificates representing the Purchased Shares
in the aforesaid manner, the Voting Trustee shall be released from any
further obligation or duty under this Agreement and the Warrant Agreement
with respect to such Purchased Shares and the Voting Trust and the
provisions of this Agreement shall terminate with respect to all the
Purchased Shares being held by the Voting Trustee pursuant to Section 3 (b)
hereof. All Voting Trust Certificates surrendered to the Voting Trustee in
accordance with the foregoing provisions shall be cancelled by the Voting
Trustee. Such cancelled Voting Trust Certificates shall then be disposed of
by the Voting Trustee in a manner satisfactory to the Voting Trustee or
delivered to the NASD.
(b) The Warrant Holders of unexpired and unexercised
Warrants shall have, and the Warrant Certificates held by such holders
shall evidence, the right to direct the Voting Trustee as to voting of the
Shares underlying the Warrants held by such holder pursuant to and in the
manner set forth in Section 7(b) hereof. The Voting Trustee shall be
entitled to rely, from time to time, upon an Outstanding Warrants Notice
(as defined in the Warrant Agreement) received from the Warrant Agent for
the purpose of determining the identity of Warrant Holders of unexercised
and unexpired Warrants and the number of Shares in respect of which the
foregoing voting rights may be exercised.
(c) Upon each Exercise of a Warrant, the Voting Trustee,
upon the request of the Warrant Agent pursuant to Section 7 of the Warrant
Agreement and payment in full of any fees and expenses of the Voting
Trustee then outstanding in respect of such Purchased Shares by such
Warrant Holder, shall deliver to the Transfer Agent a notice (which shall
include a copy of the form of election to purchase as executed by or on
behalf of the Warrant Holder) of such Exercise, and a request that the
Transfer Agent make an appropriate notation in its records of such Exercise
and cause to be delivered to the Warrant Agent with all reasonable
dispatch, in such name or names as the exercising Warrant Holder may
designate, a certificate or certificates representing the number of
Purchased Shares and the provisions of this Agreement shall terminate with
respect to such Purchased Shares. Upon taking the foregoing actions, the
Voting Trustee shall be released from any further obligation or duty under
this Agreement with respect to such Purchased Shares.
(d) Within two (2) business days of receiving a Warrant
Expiration Notice from the Warrant Agent, the Voting Trustee shall cause
the Release of the number of Shares specified in such notice from the
Voting Trust and shall promptly cause the Transfer Agent to deliver to the
NASD the certificates representing such Shares, duly endorsed for transfer,
or with duly executed stock powers attached, and shall take all such other
actions as are appropriate, or as the NASD may reasonably request, to cause
the transfer of such Shares, together with all other property relating to
or allocable to such Shares and held by the Voting Trustee pursuant to the
provisions of this Agreement, to the NASD. Each Release shall terminate the
provisions of this Agreement with respect to the Shares that are the
subject of such Release.
Section 5. Mutilated or Missing Voting Trust Certificates.
The Voting Trustee, under such rules and regulations as it in its
discretion may prescribe with respect to indemnity or otherwise, may
provide for the issuance and delivery of new Voting Trust Certificates in
lieu of lost, stolen or destroyed Voting Trust Certificates or in exchange
for mutilated Voting Trust Certificates.
Section 6. Transfer Restrictions. (a) All Voting Trust
Certificates issued pursuant to this Agreement shall be subject to the same
restrictions on Transfer (as defined in the Private Placement Memorandum)
that are applicable to shares of Common Stock set forth in the section
entitled "Transfer Restrictions - Common Stock" in the Private Placement
Memorandum.
(b) Any attempt to Transfer any Voting Trust Certificates
other than in accordance with the provisions of Sections 6(a) shall be null
and void, and the Voting Trustee shall not register any such Transfer. Each
Voting Trust Certificate issued pursuant to this Agreement shall have the
following legend noted conspicuously upon its face or reverse side:
THE SECURITIES REPRESENTED BY THIS VOTING TRUST CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND
MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
EXEMPTION THEREFROM UNDER SUCH ACT. THIS VOTING TRUST CERTIFICATE IS
SUBJECT TO, AND MAY BE TRANSFERRED ONLY IN COMPLIANCE WITH, THE CONDITIONS
SPECIFIED IN THE VOTING TRUST AGREEMENT DATED AS OF JUNE 28, 2000, AS SUCH
MAY BE AMENDED FROM TIME TO TIME, AMONG THE NASDAQ STOCK MARKET, INC., THE
NATIONAL ASSOCIATION OF SECURITIES DEALERS, INC. (THE "NASD") AND THE BANK
OF NEW YORK, AS VOTING TRUSTEE. A COPY OF SUCH AGREEMENT IS ON FILE AT THE
PRINCIPAL OFFICE OF THE NASD.
Section 7. Voting. (a) Until Exchange Registration, all the
Shares subject to the Voting Trust, including, without limitation, the
Purchased Shares being held by the Voting Trustee pursuant to the
provisions of Section 3(b) hereof, shall be voted by the Voting Trustee
solely in accordance with the written instructions of the NASD. The voting
rights associated with the Shares that are Released by the Voting Trustee
pursuant to the provisions of Section 3(c) hereof shall revert to the NASD.
(b) Upon Exchange Registration, Warrant Holders of unexpired
and unexercised Warrants shall have the right, in the manner set forth in
the following paragraph and subject to the limitation set forth in the
Company's Certificate of Incorporation, to direct the Voting Trustee as to
the voting of the Shares underlying such Warrants until the earlier of the
exercise or the expiration of such Warrants with respect to such Shares.
The voting rights associated with the Shares that are Released by the
Voting Trustee pursuant to the provisions of Section 4(d) shall revert to
the NASD.
As soon as practicable after the receipt of any notice of
any meeting at which the holders of shares of Common Stock are entitled to
vote, or of solicitation of consents or proxies from holders of shares of
Common Stock, the Voting Trustee shall fix a date for giving of
instructions for voting at such meeting or in respect of such consent or
proxy, which date shall not be less than two (2) business days prior to the
date of such meeting or the date on which such consent or proxy need to be
given. The Voting Trustee shall give ten (10) days prior written notice to
each of the holders of unexpired and unexercised Warrants appearing on its
records (i) of such notice of meeting, (ii) a statement that each such
holder at the close of business on the specified record date (the "Record
Date") will be entitled, subject to any applicable provisions of law and
the terms of this Agreement, the Warrants and the Common Stock, to instruct
the Voting Trustee to vote or cause to be voted the Shares underlying any
unexercised and unexpired Warrant tranches of such holder as of the Record
Date (the "Eligible Shares") in accordance with the written instructions
provided by each such holder no later than two (2) days prior to the date
the vote or solicitation of consents or proxies are required and (iii) a
statement as to the number of Eligible Shares held by each such holder.
The Voting Trustee shall not, under any circumstances,
exercise any discretion as to voting nor shall it vote or attempt to
exercise the right to vote the Eligible Shares except pursuant to and in
accordance with written instructions from the holders as described above.
Eligible Shares for which no specific voting instructions are received by
the Voting Trustee from the holder thereof shall not be voted, provided,
however, that the Voting Trustee shall cause such shares to be counted as
present for purposes of establishing a quorum at any meeting of Nasdaq's
stockholders.
Section 8. Dividends and Distributions. (a) Subject to the
provisions of Section 8(b) hereof, the parties hereto agree that all cash
dividends and distributions, and any other securities or other property
distributed or paid with respect to the shares of Common Stock or other
securities or property held by the Voting Trustee shall be paid or
transferred, as the case may be, directly to (i) the NASD, in respect of
the Shares underlying any unexercised and unexpired Warrants, except as set
forth in Section 8(d) hereof or Section 11(b) of the Warrant Agreement, and
(ii) the Beneficial Owners of the Purchased Shares that are being held by
the Voting Trustee pursuant to Section 3(b) hereof, except as set forth in
Section 11(b) of the Warrant Agreement. The Voting Trustee shall have no
responsibility or liability with regard to the payment of such dividends or
other distributions or other securities or property. Notwithstanding the
foregoing, if the Voting Trustee receives payments of such dividends or
distributions or other securities or property, it shall promptly distribute
such dividends or distributions or other securities or property to the
persons set forth in clause (i) and (ii) above, promptly after (and in any
event within five (5) business days) the receipt of such dividends or other
distributions or other securities or property, provided, however, that the
Voting Trustee shall not be required to transfer to the NASD any such
dividends or distributions or other securities or property to which the
NASD is entitled pursuant to this Section 8(a) until receipt of a
certificate of the NASD, signed by its Chairman, President or any Senior
Vice President or any Vice President, certifying that the NASD is entitled
to such dividends or distributions or other securities or property pursuant
to the terms of this Agreement. The NASD shall also be entitled to any
interest or gain on investments made by the Voting Trustee pursuant to
Section 8(d) hereof which shall be paid to the NASD on demand as provided
in this Agreement.
(b) Any shares of Common Stock or other securities
("Adjustment Securities") issued in an Adjustment Event (as defined in the
Warrant Agreement) in respect of Shares shall be deposited with the Voting
Trustee and held for the pro rata benefit of the recipients of the Shares
from the Voting Trust Agreement (the "Recipients"). Prior to Exchange
Registration, any Voting Trust Certificates issued pursuant to this
Agreement shall be deemed to represent any Adjustment Securities
distributed in respect of the Purchased Shares represented by such Voting
Trust Certificates. Upon Exchange Registration, any outstanding Warrant
Certificates representing unexercised and unexpired Warrants shall be
deemed to represent the right to direct the Voting Trustee as to the voting
of such Adjustment Securities to the extent such securities entitle the
holders thereof to voting rights.
(c) Any securities or other property distributed to the NASD
pursuant to the occurrence of any event described in Section 8(b) of the
Warrant Agreement shall be deposited with the Voting Trustee and held for
the pro rata benefit of the Recipients.
(d) Any interest, dividends or other income in respect of
property held by the Voting Trustee for the benefit of the Recipients
pursuant to the terms of this Agreement and the Warrant Agreement shall be
distributed to the NASD. All cash received and held by the Voting Trustee
pursuant to the terms of this Agreement and the Warrant Agreement shall,
upon the written request of the NASD, be invested in securities issued or
guaranteed by the United States or any agency or instrumentality thereof or
investments in time deposits, certificates of deposit or money market
deposits maturing within 90 days of the date of the acquisition thereof and
entitled to U.S. Federal deposit insurance for the full amount thereof or
issued by a bank or trust company which is organized under the laws of the
United States or any state thereof having capital in excess of $500 million
or in shares of any investment company registered under the Investment
Company Act of 1940 invested primarily in any of the foregoing.
Furthermore, the Voting Trustee may temporarily invest any funds awaiting
investment in any of the foregoing investments in The Bank of New York Cash
Reserve Fund, provided that such obligations will mature by their terms
within six (6) months following the making of such investment. The NASD
shall be entitled to any net income or gain resulting from such investments
and shall reimburse the Voting Trustee for any losses realized in respect
of such investments. The Voting Trustee shall not be liable for any losses
as a result of any investments made by it pursuant to and in compliance
herewith.
(e) In the event the Company or any third party makes a
tender offer for outstanding shares of Common Stock or offers to exchange
other securities or other property for outstanding shares of Common Stock
(an "Offer"), the NASD may, but shall not be obligated to, regardless of
what action it may take with respect to any other shares of Common Stock
owned by it, tender, or cause the Voting Trustee to tender, for purchase or
exchange pursuant to such Offer, any or all of the Shares held by the
Voting Trustee, and any securities or other property acquired thereby shall
be deposited with the Voting Trustee and held for the pro rata benefit of
the Recipients. The NASD, however, may, but shall not be obligated to,
cause the Voting Trustee to sell, at any time, all or any such securities
or other property so acquired, in which event the proceeds of such sale,
after deducting the expenses of such sale and taxes payable as a result
thereof, shall be held by the Voting Trustee for the pro rata benefit of
the Recipients.
Section 9. The Voting Trustee. (a) Subject to the provisions
of this Agreement, the Voting Trustee shall manage the Voting Trust created
hereby.
(b) The Voting Trustee shall be entitled to such
compensation as the Company, the NASD and the Voting Trustee shall from
time to time agree in writing for all services rendered by it hereunder
(which compensation shall not be limited by any provision of law in regard
to the compensation of a Voting Trustee of an express trust).
(c) The Voting Trustee is expressly authorized to incur and
pay all reasonable, properly documented charges and other expenses that the
Voting Trustee deems necessary and proper in the performance of the Voting
Trustee's duties under this Agreement and the Company and NASD shall
jointly and severally reimburse the Voting Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Voting Trustee in accordance with any provision of this Agreement
(including the reasonable compensation and the expenses and disbursements
of its agents and counsel), except any such expense, disbursement or
advance as may be attributable to its gross negligence, willful misconduct
or bad faith. The Company and the NASD, jointly and severally, shall
indemnify the Voting Trustee for any and all loss, damage, claims,
liability or expense, including taxes (other than taxes based upon,
measured by or determined by the income of the Voting Trustee), arising out
of or in connection with the acceptance or administration of the Voting
Trust, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder, except to the extent that such loss,
damage, claim, liability or expense is due to its own gross negligence,
willful misconduct or bad faith.
(d) In acting hereunder, the Voting Trustee shall have only
such duties as are specified herein and no implied duties shall be read
into this Agreement, and the Voting Trustee shall not be liable for any act
done, or omitted to be done, by it in the absence of its gross negligence,
willful misconduct or bad faith. The Voting Trustee shall be free from
liability to the Company or the NASD in acting or relying upon any writing,
notice, certificate or document believed by the Voting Trustee in good
faith after reasonable inquiry to be genuine and to have been signed by an
authorized officer of the Company or the NASD, as the case may be.
(e) The Voting Trustee may resign by giving 45 days' advance
written notice of resignation to the Company or the NASD. Within ten (10)
calendar days after receiving the foregoing notice of resignation from the
Voting Trustee, NASD and the Company shall jointly agree on and appoint a
successor Voting Trustee. If a successor Voting Trustee has not accepted
such appointment by the end of such ten-day period, the Voting Trustee may,
in its sole discretion, apply to a court of competent jurisdiction for the
appointment of a successor Voting Trustee or for other appropriate relief.
The costs and expenses (including reasonable attorneys' fees and expenses)
incurred by the Voting Trustee in connection with such proceeding shall be
paid by, and be deemed a joint and several obligation of, the NASD and the
Company. The Voting Trustee shall continue to serve until its successor
accepts its appointment hereunder.
(f) In connection with the appointment of a successor
Trustee in the event of the resignation or removal of the Voting Trustee,
the Voting Trustee shall, simultaneously with the execution by the
successor Trustee of a counterpart of this Agreement, transfer and deliver
(or cause to be transferred and delivered) to the successor Trustee the
Shares and all other securities or other property that are held in the name
of the Voting Trustee or subject to the Voting Trust immediately prior to
such execution. The successor Trustee shall file an executed copy of this
Agreement, as amended, at the registered office of the Company in the State
of Delaware, which copy shall be open to the inspection of any stockholder
of the Company, or any beneficiary of the Voting Trust, daily during
business hours, as provided in Section 218 of the DGCL, and thereafter the
successor Trustee shall become the Voting Trustee for all purposes of this
Agreement, and shall succeed to all of the rights and obligations of the
Voting Trustee hereunder. Certificates representing the Shares so
transferred to the successor Trustee shall be surrendered and canceled, and
a new certificate(s) therefor shall be issued in the name of the successor
Trustee. Such certificate(s) shall state that they have been issued
pursuant to this Agreement, as amended, and that fact shall be noted in the
stock ledger of the Company, as required by Section 218 of the DGCL. In the
event a successor Trustee shall be appointed after a record date has passed
with respect to any vote of the stockholders of the Company and prior to
the stockholders meeting or the taking of action by written consent
relating to such record date, the Voting Trustee as of such record date
shall vote the Shares and/or execute a written consent with respect thereto
in accordance with the instructions of the successor Trustee in accordance
with the terms of this Agreement.
(g) The Company and the NASD hereby acknowledge that the
Voting Trustee has had, presently may have and may in the future have other
business relationships with any one or more of the Warrant Holders, the
Company or the NASD that are unrelated to its duties and obligations under
this Agreement, and hereby waive and release the Voting Trustee from any
conflict of interest which such relationship may create; provided, that in
the event such conflict of interest results in or arises in connection with
litigation between any such Warrant Holder and the Company or any other
Warrant Holder or the NASD, the Company or the NASD shall have the right
immediately to remove the Voting Trustee within ten (10) business days
following notice of such conflict to them from the Voting Trustee or notice
of such conflict from any of them to the Voting Trustee (the "Conflict
Notice"). Notwithstanding an election by the Company or the NASD to remove
the Voting Trustee as provided in the previous sentence, the foregoing
waiver and release shall apply to any actions taken by the Voting Trustee
or which the Voting Trustee refrains from taking in accordance with
instructions authorized under this Agreement during the period between
delivery of such Conflict Notice and the Voting Trustee's removal.
(h) The Voting Trustee represents that it is acquiring the
Shares only in its capacity as trustee to hold in trust pursuant to the
provisions of this Agreement.
(i) In the event the Voting Trustee receives conflicting
instructions under this Agreement, the Voting Trustee shall be fully
protected in refraining from acting until such conflict is resolved to the
satisfaction of the Voting Trustee except that if such conflict arises by
virtue of the receipt of later dated instructions from the same party, the
Voting Trustee shall follow the later dated instructions in accordance with
this Agreement. The Voting Trustee shall be obligated to contact promptly
the party giving the conflicting instructions to ascertain the nature of
any conflict, and in the event such conflict cannot be resolved, the Voting
Trustee shall have the right to institute a xxxx of interpleader in any
court referred to in Section 16(b) of this Agreement to determine the
rights and obligations of the parties, and the party giving the conflicting
instructions shall pay all costs, expenses and disbursements in connection
therewith, including reasonable attorneys' fees.
(j) The Voting Trustee may consult at any time with counsel
satisfactory to it (who may be counsel for the Company or the NASD) and the
Voting Trustee shall incur no liability or responsibility to the Company or
the NASD in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with the opinion or the advice of
such counsel.
Section 10. Benefit and Binding Effect; Assignment. This
Agreement and all covenants herein contained shall be binding upon and
shall inure to the benefit of each of the parties hereto and their
respective heirs, executors, administrators and personal representatives
and their successors and assigns. This Agreement shall not be assigned by
any party hereto without the prior written consent of the other parties
hereto, provided, however, that either the Company or the NASD may assign
this Agreement to any entity controlling, controlled by or under common
control with the Company or the NASD, as the case may be, without the prior
written consent of the Voting Trustee. The provisions of this Agreement
shall apply, to the full extent set forth herein, with respect to the
transfer of Shares of the Company or of any successor securities of the
Company that (whether by merger, consolidation, sale of assets, or
otherwise) may be issued in respect of, in exchange for, or in substitution
of, such Shares.
Section 11. Notices. Any notice required or permitted by
this Agreement must be in writing and must be sent by facsimile, by
nationally recognized commercial overnight courier, or mailed by U.S.
registered or certified mail, addressed to the other party at the address
below or to such other address for notice (or facsimile number, in the case
of a notice by facsimile) as a party gives the other party written notice
of in accordance with this Section 11. Any such notice will be effective as
of the date of receipt:
(a) If to the Company, to:
The Nasdaq Stock Market, Inc.
0000 X Xxxxxx, XX
Xxxxxxxxxx, X.X. 00000-0000
Fax: (000) 000-0000
Attention: Office of General Counsel - Contracts Group
(b) If to the NASD, to:
National Association of Securities Dealers, Inc.
0000 X Xxxxxx, XX
Xxxxxxxxxx, X.X. 00000-0000
Fax: (000) 000-0000
Attention: General Counsel
(c) If to the Voting Trustee, to:
The Bank of New York
000 Xxxxxxx Xxxxxx, 00X
Xxx Xxxx, XX 00000
Fax: (000)000-0000
Attention: Insurance Trust and Escrow Unit
or such other address or fax number as such party may hereafter specify for
such purpose by notice to the other parties hereto.
Section 12. Trademarks, etc. The Voting Trustee agrees that
it will not use the names "National Association of Securities Dealers,
Inc.," "NASD," "NASD Regulation, Inc.," "NASD Regulation," "NASDR," "The
Nasdaq Stock Market, Inc.," "Nasdaq", "American Stock Exchange LLC", or
"AMEX" in any advertising, informational, promotional or other media or
materials of the Voting Trustee without the prior written consent of the
NASD. The Voting Trustee shall not use any trademark, service xxxx,
copyright, or patent of the NASD or any of its subsidiaries or affiliates,
registered, or unregistered without the prior written consent of the NASD.
Section 13. Amendments. From and after the date hereof, the
Voting Trustee shall, if either the Company or the NASD so directs from
time to time, agree to supplement or amend this Agreement without the
approval of any holders of Voting Trust Certificates in order (i) to cure
any ambiguity, (ii) to correct or supplement any provision contained herein
which may be defective or inconsistent with any other provisions herein, or
(iii) to make any other provisions in regard to matters or questions
arising hereunder which the Company or the NASD may deem necessary or
desirable and which shall not adversely affect the interests of the holders
of Voting Trust Certificates issued pursuant to this Agreement; provided,
however, this Agreement shall not otherwise be modified, supplemented or
altered in any respect except with the consent in writing of the holders of
Voting Trust Certificates whose Voting Trust Certificates represent not
less than a majority of the Purchased Shares then represented by Voting
Trust Certificates. Upon delivery of a certificate from an appropriate
officer of the Company or the NASD which states that the proposed
supplement or amendment is in compliance with the terms of this Section 13,
the Voting Trustee shall execute such supplement or amendment.
Notwithstanding any other provision hereof, the Voting Trustee's consent
must be obtained in connection with any amendment or supplement pursuant to
this Section 13 which alters the Voting Trustee's rights or duties set
forth in this Agreement.
Section 14. Enforceability. In the event that any part of
this Agreement shall be held to be invalid or unenforceable, the remaining
parts thereof shall nevertheless continue to be valid and enforceable as
though the invalid portions were not a part hereof.
Section 15. Termination. This Agreement shall terminate upon
the later of the close of business on (i) the last business day prior to
the sixth anniversary date of this Agreement or (ii) the date of Exchange
Registration. The provisions of Sections 9 and 12 hereof shall survive the
termination of this Agreement and/or resignation or removal of the Voting
Trustee.
Section 16. Governing Law; Consent to Jurisdiction.
(a) This Agreement shall be construed in accordance with and
governed by the internal laws of the State of Delaware.
(b) Any suit, action or proceeding seeking to enforce any
provision of, or based on any matter arising out of or in connection with,
this Agreement or the transactions contemplated hereby shall be brought in
any federal court located in the State of Delaware or any Delaware state
court, and each of the parties hereby consents to the exclusive
jurisdiction of such courts (and of the appropriate appellate courts
therefrom) in any such suit, action or proceeding and irrevocably waives,
to the fullest extent permitted by law, any objection which it may now or
hereafter have to the laying of the venue of any such suit, action or
proceeding in any such court or that any such suit, action or proceeding
which is being brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be
served on any party anywhere in the world, whether within or without the
jurisdiction of any such court. Without limiting the foregoing, to the
fullest extent permitted by applicable law, each party agrees that service
of process on such party as provided in Section 11 shall be deemed
effective service of process on such party.
Section 17. Counterparts. This Agreement may be signed in
counterparts and all signed copies of this Agreement will together
constitute one original of this Agreement. This Agreement shall become
effective when each party hereto shall have received counterparts thereof
signed by all the other parties hereto.
Section 18. Descriptive Headings. The descriptive headings
herein are inserted for convenience of reference only and shall in no way
be construed to define, limit, describe, explain, modify, amplify, or add
to the interpretation, construction or meaning of any provision of, or
scope or intent of, this Agreement nor in any way affect this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this
Voting Trust Agreement to be duly executed as of the date first above
written.
THE NASDAQ STOCK MARKET, INC.
By:
------------------------------------
Name:
Title:
NATIONAL ASSOCIATION OF
SECURITIES DEALERS, INC.
By:
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Name:
Title:
THE BANK OF NEW YORK
By:
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Name:
Title:
