THIS SEPARATION AND COMMON SERVICES AGREEMENT (Agreement), dated as of January 1, 2002 (Effective Date), is by and between the National Association of Securities Dealers, Inc., a Delaware nonprofit corporation with its principal place of business located at 1735 K Street, N.W., Washington, D.C. 20006 (NASD) and The Nasdaq Stock Market, Inc. (Nasdaq), a Delaware corporation with its principal place of business located at One Liberty Plaza, New York, New York.

W I T N E S S E T H:

        WHEREAS, Nasdaq and NASD desire to procure certain services necessary for the efficient operation of their respective businesses;

        WHEREAS, NASD and Nasdaq are each uniquely qualified to provide such services to the other; and

        WHEREAS, each Party desires to provide and obtain from the other the services described in this Agreement on the terms and conditions set forth in this Agreement.

        NOW, THEREFORE, for and in consideration of the agreements set forth below, Nasdaq and NASD hereby agree as follows:

SECTION 1    DEFINITIONS AND CONSTRUCTION.

        1.01    Definitions.    The following defined terms used throughout this Agreement will have the meanings specified below. Additional definitions of specific terms used in this Agreement may be found in subsequent Sections.

Affiliate will mean, as to any entity, any other entity that, directly or indirectly, Controls, is Controlled by or is under common Control with such entity, provided that Services need only be provided within the United States and only during normal Nasdaq hours of operation. A list of Affiliates of the Parties is attached hereto. Additional entities can be added with consent of the other Party, not to be unreasonably withheld.

Agreement will mean this Separation and Common Services Agreement by and between Nasdaq and NASD.

Change(s) will mean any change in the Services, the manner in which the Services are provided, the composition of the Services, the Fees, or relevant operating and security procedures.

Claim will mean any (1) written demand or (2) civil, criminal, administrative or investigative action or proceeding by a third Person against either Nasdaq or NASD, or an Indemnitee.


 

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