Common use of Trust Matters Clause in Contracts

Trust Matters. (a) If, at any time after the date hereof, Borse Dubai and its Subsidiaries, taken as a whole, own less than 19.99% of the outstanding Shares calculated on a fully diluted basis (in accordance with the methodology set forth on Schedule A, but not including any Shares owned by the Trust) and Borse Dubai desires for the Trustee to transfer a number of Shares from the Trust to Borse Dubai in order to increase Borse Dubai’s ownership to such 19.99% level, then, upon the request of Borse Dubai, Nasdaq shall within five (5) Business Days of such request execute a certificate signed by an executive officer of Nasdaq in a form reasonably acceptable to Borse Dubai, confirming that the Trustee may transfer such number of Shares from the Trust to Borse Dubai. (b) As of the date hereof, because Borse Dubai beneficially owns the Shares held by the Trust, the Shares held by Borse Dubai and the Trust collectively are subject to the voting limitation imposed by Article Fourth, Section C.2 of NASDAQ’S Amended and Restated Certificate of Incorporation. As a result, until such voting limitation is no longer applicable to the Shares beneficially owned by Borse Dubai (whether as the result of its decreased percentage interest in the Shares, pursuant to Section 4.2 hereof, a combination or either or otherwise), Borse Dubai shall vote all Shares beneficially owned by Borse Dubai, and the Trust shall have no separate voting rights. However, if, at any time after the date hereof such voting limitation is no longer applicable to the Shares beneficially owned by Borse Dubai, Trustee shall have the right to vote the Shares held by the Trust on any matters submitted to the stockholders of Nasdaq, and Borse Dubai shall use its reasonable best efforts to cause the Trustee to execute a proxy with respect to the Shares held by the Trust in favor of the Corporate Secretary or other designee of Nasdaq to vote on respect to such matters. The Corporate Secretary or other designee of Nasdaq shall vote such Shares pro rata with the other shareholders of Nasdaq (excluding Borse Dubai) at the time of any such vote. (c) For as long as the Trust continues to hold any Shares, Borse Dubai shall use its reasonable best efforts to cause the Trustee to dispose of any Shares owned by the Trust (including, pursuant to the 2008 Registration Rights Agreement); provided, however, that Borse Dubai shall have no obligation to cause the Trust to dispose of such Shares if the net amount that the Trustee would receive on the sale of any Share is less than the sum of: (i) $51.52; plus (ii) the reasonable, documented out of pocket expenses and fees of the Trustee not recovered pursuant to any prior dispositions (whether or not previously paid by Borse Dubai), payable by Borse Dubai under the Fee Agreement (as defined in the Trust Agreement) divided by the total number of Shares then owned by the Trust; plus (iii) a cost of capital of 6% annually (pro rata for the period such Shares are held by the Trust); minus (iv) any cash distributions or the Fair Market Value of distributions of property made by Nasdaq to the Trust divided by the total number of Shares owned by the Trust as of the date of such distribution; and provided further, however, that Borse Dubai shall not cause the Trustee to dispose of any Shares to any Competitor except (A) pursuant to a merger, consolidation, share exchange, tender offer or other similar transaction involving Nasdaq, (B) in any such Transfer pursuant to a public offering or a sale pursuant to Rule 144 under the Securities Act, provided that Borse Dubai does not have actual knowledge that a purchaser pursuant thereto is a Competitor, and (C) to any investment bank or its Affiliate (1) in the capacity of an underwriter, placement agent, broker, dealer or similar function or (2) in a transaction (or series of related transactions) involving the transfer of Shares representing less than 5.0% of the outstanding Common Stock. If Borse Dubai intends to cause the Trustee to dispose of any Shares, Borse Dubai shall consult with Nasdaq prior to completing any such transaction.

Trust Matters. (a) If, at any time after the date hereof, Borse Dubai and its Subsidiaries, taken as a whole, own less than 19.99% of the outstanding Shares calculated on a fully diluted basis (in accordance with the methodology set forth on Schedule A, but not including any Shares owned by the Trust) and Borse Dubai desires for the Trustee to transfer a number of Shares from the Trust to Borse Dubai in order to increase Borse Dubai’s ownership to such 19.99% level, then, upon the request of Borse Dubai, Nasdaq shall within five (5) Business Days of such request execute a certificate signed by an executive officer of Nasdaq in a form reasonably acceptable to Borse Dubai, confirming that the Trustee may transfer such number of Shares from the Trust to Borse Dubai. (b) As of the date hereof, because Borse Dubai beneficially owns the Shares held by the Trust, the Shares held by Borse Dubai and the Trust collectively are subject to the voting limitation imposed by Article Fourth, Section C.2 of NASDAQ’S Nasdaq’s Amended and Restated Certificate of Incorporation. As a result, until such voting limitation is no longer applicable to the Shares beneficially owned by Borse Dubai (whether as the result of its decreased percentage interest in the Shares, pursuant to Section 4.2 hereof, a combination or either or otherwise), Borse Dubai shall vote all Shares beneficially owned by Borse Dubai, and the Trust shall have no separate voting rights. However, if, at any time after the date hereof such voting limitation is no longer applicable to the Shares beneficially owned by Borse Dubai, Trustee shall have the right to vote the Shares held by the Trust on any matters submitted to the stockholders of Nasdaq, and Borse Dubai shall use its reasonable best efforts to cause the Trustee to execute a proxy with respect to the Shares held by the Trust in favor of the Corporate Secretary or other designee of Nasdaq to vote on respect to such matters. The Corporate Secretary or other designee of Nasdaq shall vote such Shares pro rata with the other shareholders of Nasdaq (excluding Borse Dubai) at the time of any such vote. (c) For as long as the Trust continues to hold any Shares, Borse Dubai shall use its reasonable best efforts to cause the Trustee to dispose of any Shares owned by the Trust (including, pursuant to the 2008 Registration Rights Agreement); provided, however, that Borse Dubai shall have no obligation to cause the Trust to dispose of such Shares if the net amount that the Trustee would receive on the sale of any Share is less than the sum of: (i) $51.52; plus (ii) the reasonable, documented out of pocket expenses and fees of the Trustee not recovered pursuant to any prior dispositions (whether or not previously paid by Borse Dubai), payable by Borse Dubai under the Fee Agreement (as defined in the Trust Agreement) divided by the total number of Shares then owned by the Trust; plus (iii) a cost of capital of 6% annually (pro rata for the period such Shares are held by the Trust); minus (iv) any cash distributions or the Fair Market Value of distributions of property made by Nasdaq to the Trust divided by the total number of Shares owned by the Trust as of the date of such distribution; and provided further, however, that Borse Dubai shall not cause the Trustee to dispose of any Shares to any Competitor except (A) pursuant to a merger, consolidation, share exchange, tender offer or other similar transaction involving Nasdaq, (B) in any such Transfer pursuant to a public offering or a sale pursuant to Rule 144 under the Securities Act, provided that Borse Dubai does not have actual knowledge that a purchaser pursuant thereto is a Competitor, and (C) to any investment bank or its Affiliate (1) in the capacity of an underwriter, placement agent, broker, dealer or similar function or (2) in a transaction (or series of related transactions) involving the transfer of Shares representing less than 5.0% of the outstanding Common Stock. If Borse Dubai intends to cause the Trustee to dispose of any Shares, Borse Dubai shall consult with Nasdaq prior to completing any such transaction.