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CERTIFICATE OF DESIGNATIONS,
PREFERENCES AND RIGHTS
OF
SERIES A CUMULATIVE PREFERRED STOCK
OF
THE NASDAQ STOCK MARKET, INC.
Pursuant to Section 151 of the
Delaware General Corporation Law
The Nasdaq Stock Market, Inc., a Delaware corporation (the
"Corporation"), certifies that pursuant to the authority contained in its
Restated Certificate of Incorporation (the "Certificate of Incorporation") and
in accordance with the provisions of Section 151 of the General Corporation Law
of the State of Delaware, the Board of Directors of the Corporation (the "Board
of Directors"), acting by unanimous written consent, adopted the following
resolution, which resolution remains in full force and effect as of the date
hereof:
DOES HEREBY CERTIFY THAT:
RESOLVED, that there is hereby established a series of authorized
preferred stock consisting of 1,338,402 shares, which series shall have the
following powers, designations, preferences and relative, participating,
optional or other rights, and the following qualifications, limitations and
restrictions (in addition to any powers, designations, preferences and relative,
participating, optional or other rights, and any qualifications, limitations and
restrictions, set forth in the Certificate of Incorporation):
SECTION 1. DESIGNATION AND AMOUNT. The series of preferred stock
created hereby shall be designated "Series A Cumulative Preferred Stock," par
value $.01 per share (hereinafter called the "Series A Preferred Stock") and the
number of shares constituting such series shall be 1,338,402.
SECTION 2. DIVIDENDS; RANKING.
(a) The holders of the Series A Preferred Stock shall be entitled
to receive when, as and if declared by the Board of Directors out of the funds
legally available therefor,
(i) during the period commencing the date which is the first
anniversary (the "7.60% Dividend Date") of the date of the original
issuance of the Series A Preferred Stock (the "Issue Date") and ending the
date that is the second anniversary of the Issue Date (the "Second
Anniversary Date") cash dividends, at the annual rate of 7.60% of the
Series A Preferred Stock Liquidation Preference (as defined below)
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per annum per share, and no more, which shall be fully cumulative and shall
accrue without interest from the 7.60% Dividend Date, and
(ii) during the period commencing the date which is the day
immediately following the Second Anniversary Date (the "10.60% Dividend
Date"), cash dividends, at the annual rate of 10.60% of the Series A
Preferred Stock Liquidation Preference per annum per share, and no more,
which shall be fully cumulative and shall accrue without interest from the
10.60% Dividend Date.
No dividends shall accrue in respect of the period commencing on the Issue
Date and ending on the date that is the day immediately prior to the 7.60%
Dividend Date. Dividends shall be paid quarterly in arrears in equal
amounts (prorated for any partial dividend period) on March 31, June 30,
September 30 and December 31 of each year (unless such day is not a
Business Day (as defined below), in which event such dividends shall be
payable on the next succeeding Business Day) (each such date being referred
to herein as a "Dividend Payment Date"), commencing with March 31, 2003
(and in the case of any accrued but unpaid dividends, at such additional
times and for such interim periods, if any, as determined by the Board of
Directors) to the holders of record as they appear on the stock books of
the transfer agent for the Corporation (the "Transfer Agent") on the
immediately preceding March 15, June 15, September 15 and December 15,
respectively, (and in the case of accrued and unpaid dividends to be paid
at such additional times and for such interim periods, if any, on such
record dates, which shall be not more than 30 days nor less than 10 days
preceding the Dividend Payment Dates, as fixed by the Board of Directors)
(each such date being referred to herein as a "Series A Record Date"),
PROVIDED that holders of shares of Series A Preferred Stock called for
redemption on a redemption date falling between any Series A Record Date
and the corresponding Dividend Payment Date shall, in lieu of receiving
such dividend payment on the Dividend Payment Date fixed therefor, receive
such dividend payment together with all other accrued and unpaid dividends
on the date fixed for redemption. The amount of dividends payable per share
of Series A Preferred Stock for each quarterly dividend period shall be
computed, which computation shall be made within five Business Days of the
Dividend Payment Date, by dividing the annual dividend amount per share by
four and adding to such amount the amount of all accrued and unpaid
dividends. The amount of dividends payable for the initial dividend period
and dividends payable for any other period that is shorter or longer than a
full quarterly dividend period shall be computed on the basis of a 360-day
year consisting of twelve 30-day months. Holders of shares of Series A
Preferred Stock shall not be entitled to receive any dividends, whether
payable in cash, property or stock, which are in excess of the cumulative
dividends provided for herein.
"Business Day" shall mean any day other than a Saturday, Sunday or a
day on which state or federally chartered banking institutions in New York, New
York are not required to be open.
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(b) The Series A Preferred Stock shall rank, both as to the
payment of dividends and as to the distribution of assets upon Liquidation (as
defined below), senior to any existing and future classes or series of equity
securities of the Corporation, including, without limitation, the Corporation's
Common Stock, par value $.01 per share (the "Common Stock"), and the
Corporation's Series B Preferred Stock, par value $.01 ("Series B Preferred
Stock").
(c) So long as any shares of the Series A Preferred Stock are
outstanding, no dividends (other than dividends or distributions paid in shares
of, or options, warrants or rights to subscribe for or purchase, or to
effectuate a stock split, on shares of Junior Securities (as defined below))
shall be declared or paid or set apart for payment on Junior Securities, for any
period, nor, except for the Series B Preferred Stock, shall any Junior
Securities be redeemed, purchased or otherwise acquired (other than a
redemption, purchase or other acquisition of shares of Common Stock made for the
purposes of incentive or benefit plans or arrangements of the Corporation or any
subsidiary thereof) for any consideration (or any moneys be paid to or made
available for a sinking fund for the redemption of any such Junior Securities)
by the Corporation (except for conversion into or exchange into other Junior
Securities) unless, in each case, prior to or currently with such declaration,
payment or setting apart for payment all accrued and unpaid dividends on all
outstanding shares of the Series A Preferred Stock shall have been paid or set
apart for payment and any such dividend on shares of Junior Securities or
consideration for any such redemption, purchase or other acquisition of Junior
Securities shall consist only of cash or Common Stock or options, warrants or
rights to subscribe for or purchase Common Stock.
(d) As used in this Certificate of Designations, the term "Junior
Securities" means any class or series of stock or equity securities of the
Corporation that by its terms is junior to the Series A Preferred Stock, either
as to the payment of dividends or as to the distribution of assets upon
Liquidation, or both, including the Common Stock and the Series B Preferred
Stock.
(e) For purposes of the Series A Preferred Stock, the amount of
dividends "accrued" on any share of stock of any class or series as of any date
shall be deemed to be the amount of any unpaid dividends accumulated thereon to
and including the date of such determination.
SECTION 3. PREFERENCE ON LIQUIDATION.
(a) In the event of the Liquidation of the Corporation, the
holders of the Series A Preferred Stock shall be entitled to have paid to them
out of the assets of the Corporation available for distribution to stockholders
before any distribution is made to or set apart for the holders of shares of
Common Stock, Series B Preferred Stock or other Junior Securities, an amount in
cash equal to $100.00 per share plus all accrued and unpaid dividends thereon,
whether or not declared, to the date of Liquidation (the "Series A Preferred
Stock Liquidation Preference"); PROVIDED, HOWEVER, upon a Liquidation in which
upon distribution of assets some or all of the consideration shall be paid other
than in cash, then the Series A Preferred Stock Liquidation Preference shall be
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payable in such form of consideration as shall be payable generally to
stockholders upon such Liquidation, and if there shall be more than one type of
consideration payable upon such Liquidation, then the Series A Preferred Stock
Liquidation Preference shall be comprised of cash, to the full extent available,
and such other type of consideration, it being understood that no holders of
Junior Securities shall be entitled to receive any cash consideration unless and
until the aggregate Series A Preferred Stock Liquidation Preference shall have
been paid in full.
(b) If, upon any Liquidation, the assets of the Corporation or
proceeds thereof distributable among the holders of shares of the Series A
Preferred Stock shall be insufficient to permit the payment in full of the
Series A Preferred Stock Liquidation Preference for each share of the Series A
Preferred Stock then outstanding, then such assets or proceeds thereof shall be
distributed among such holders of Series A Preferred Stock ratably in accordance
with the respective amounts that would be payable on such shares if all amounts
payable thereon were paid in full.
(c) In the event of a Liquidation, the Corporation shall give, by
certified mail, return receipt requested, postage prepaid, addressed to each
holder of any shares of Series A Preferred Stock at the address of such holder
as shown on the books of the Corporation, at least 20 days' prior written notice
of the date on which the books of the Corporation shall close or a record shall
be taken for determining rights to vote in respect of any such Liquidation and
of the date when the same shall take place.
(d) As used in this Certificate of Designations, the term
"Liquidation" shall be deemed to include (i) any liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary, (ii) the sale,
lease, abandonment, transfer or other disposition (each, a "Transfer") by the
Corporation of all or substantially all its assets for cash where (A) the Board
of Directors is required, pursuant to the law of the state of incorporation of
the Corporation, to approve such Transfer and (B) at the time of such Transfer
no holder of Series A Preferred Stock, directly or indirectly, in the aggregate,
has affirmative voting control of the Corporation either through ownership of
capital stock or other equity securities or through representation on the Board
of Directors (any Transfer satisfying the foregoing clauses (A) and (B), being
referred to herein as a "Qualifying Asset Sale"), and (iii) any merger or
consolidation of the Corporation into or with any other person or persons where
(x) the Corporation is not the surviving person, (y) the Board of Directors is
required, pursuant to the law of the state of incorporation of the Corporation,
to approve such merger or consolidation and (z) at the time of such merger or
consolidation, no holder of Series A Preferred Stock, directly or indirectly, in
the aggregate, has affirmative voting control of the Corporation either through
ownership of capital stock or other equity securities or through representation
on the Board of Directors (any merger or consolidation satisfying the foregoing
clauses (x), (y) and (z), being referred to herein as a "Qualifying Merger").
For the avoidance of doubt, "Liquidation" shall not be deemed to include (i) a
consolidation or merger of the Corporation into or with any other entity or
entities other than a Qualifying Merger, (ii) other than in connection with a
Qualifying Merger, a transaction or series of related transactions that results
in the transfer of more than 50% of the voting power of the Corporation and
(iii) the Transfer by the Corporation of all or substantially all its assets
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other than in connection with a Qualifying Asset Sale or in connection with a
plan of liquidation, dissolution or winding up of the Corporation.
Notwithstanding the foregoing, if at any time after the Issue Date, the Board of
Directors determines in good faith, based upon a review of relevant information,
including a written opinion of its independent auditors, that as a result of any
change in U.S. generally accepted accounting principles or any applicable U.S.
accounting authority, treating a Qualifying Merger or a Qualifying Asset Sale as
a Liquidation would no longer permit the Series A Preferred Stock to be
accounted for as stockholders' equity of the Corporation, a "Liquidation" will
no longer be deemed to include a Qualifying Merger or a Qualifying Asset Sale,
as the case may be; PROVIDED, HOWEVER, that the Corporation shall provide prompt
notice of such determination by the Board of Directors, together with a copy of
the written opinion of the Corporation's independent auditors referred to above,
to each holder of the Series A Preferred Stock. For purposes of this Section
3(d) and Section 6, "person" means any natural person, corporation, general or
limited partnership, limited liability company, joint venture, trust,
association or entity of any kind.
SECTION 4. VOTING.
(a) Except as herein provided or as otherwise required by
applicable law, holders of Series A Preferred Stock shall have no voting rights.
(b) If and whenever four consecutive quarterly dividends payable
on the Series A Preferred Stock have not been paid in full, the number of
directors then constituting the Board of Directors shall be increased by two and
the holders of the Series A Preferred Stock, voting as a single class, shall be
entitled, in accordance with the Certificate of Incorporation and subject to the
requirements of applicable laws, rules and regulations, to elect the two
additional directors to serve on the Board of Directors at any annual meeting of
stockholders or special meeting held in place thereof, or at a special meeting
of the holders of the Series A Preferred Stock called as hereinafter provided.
Whenever all arrears in dividends on the Series A Preferred Stock then
outstanding shall have been paid or the Corporation shall have repurchased and
redeemed all then-outstanding shares of Series A Preferred Stock, as the case
may be, then the right of the holders of the Series A Preferred Stock to elect
such additional two directors shall cease (but subject always to the same
provisions for the vesting of such voting rights in the case of any similar
future arrearages in four consecutive quarterly dividends), and the terms of
office of all persons elected as directors by the holders of the Series A
Preferred Stock shall forthwith terminate and the number of the Board of
Directors shall be reduced accordingly. At any time after such voting power
shall have been so vested in the holders of shares of the Series A Preferred
Stock, the secretary of the Corporation may, and upon the written request of
holders of at least 25% of the outstanding shares of Series A Preferred Stock
(addressed to the secretary at the principal office of the Corporation) shall,
call a special meeting of the holders of the Series A Preferred Stock for the
election of the two directors, who shall satisfy all requirements of the
Corporation's By-Laws, Certificate of Incorporation, applicable laws, rules and
regulations for service as members of the Board of Directors, to be elected by
them as herein provided, such call to be made by notice similar to that provided
in the By-Laws of the Corporation for a special meeting of the stockholders or
as required by law. If any
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such special meeting required to be called as above provided shall not be called
by the secretary within 20 days after receipt of any such request, then any
holder of shares of Series A Preferred Stock may call such meeting, upon the
notice above provided, and for that purpose shall have access to the stock books
of the Corporation. The directors elected at any such special meeting shall hold
office until the next annual meeting of the stockholders or special meeting held
in lieu thereof if such office shall not have previously terminated as above
provided. If any vacancy shall occur among the directors elected by the holders
of the Series A Preferred Stock, a successor shall be appointed by the
then-remaining director elected by the holders of the Series A Preferred Stock
or the successor of such remaining director of a person who satisfies all
requirements of the Corporation's By-Laws, Certificate of Incorporation,
applicable laws, rules and regulations for service as a member of the Board of
Directors, to serve until the next annual meeting of the stockholders or special
meeting held in place thereof if such office shall not have previously
terminated as provided herein. If at any time both director positions elected by
the holders of the Series A Preferred Stock are vacant at the same time, the
Board of Directors shall appoint such persons as designated by a majority of the
holders of the Series A Preferred Stock who satisfy all requirements of the
Corporation's By-Laws, Certificate of Incorporation, applicable laws, rules and
regulations for service as a member of the Board of Directors, to serve until
the next annual meeting of the stockholders or special meeting held in place
thereof if such office shall not have previously terminated as provided herein.
Directors elected or appointed in accordance with this Section 4(b) may only be
removed with the written consent of at least 66 2/3% in Series A Preferred Stock
Liquidation Preference of the outstanding shares of Series A Preferred Stock or
the vote of holders of at least 66 2/3% in Series A Preferred Stock Liquidation
Preference of the outstanding shares of Series A Preferred Stock at a meeting of
the holders of Series A Preferred Stock called for such purpose.
(c) Without the written consent of the holders of at least 66
2/3% in Series A Preferred Stock Liquidation Preference of the outstanding
shares of Series A Preferred Stock or the vote of holders of at least 66 2/3% in
Series A Preferred Stock Liquidation Preference of the outstanding shares of
Series A Preferred Stock at a meeting of the holders of Series A Preferred Stock
called for such purpose, the Corporation will not amend, alter or repeal any
provision of the Certificate of Incorporation (by merger or otherwise) so as to
adversely affect the preferences, rights or powers of the Series A Preferred
Stock; PROVIDED that any such amendment that changes the dividend payable on or
the liquidation preference of the Series A Preferred Stock shall require the
affirmative vote at a meeting of holders of Series A Preferred Stock called for
such purpose or written consent of the holder of each share of Series A
Preferred Stock.
(d) In exercising the voting rights set forth in this Section 4,
each share of Series A Preferred Stock shall have one vote per share, except
that when any other series of preferred stock shall have the right to vote with
the Series A Preferred Stock as a single class on any matter, then the Series A
Preferred Stock and such other series shall have with respect to such matters
one vote per $100 of stated liquidation preference, disregarding any provision
for accrued and unpaid dividends. Except as otherwise required by applicable law
or as set forth herein, the shares of Series A Preferred Stock shall not have
any relative, participating, optional or other special voting
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rights and powers and the consent of the holders thereof shall not be required
for the taking of any corporate action.
SECTION 5. REDEMPTION.
(a) OPTIONAL REDEMPTION. Subject to the provisions of this
Section 5, to the extent the Corporation shall have funds legally available for
such payment, the Corporation shall have the right, exercisable from time to
time, to redeem, at its option, in part or in whole, then-outstanding shares of
Series A Preferred Stock at a redemption price per share in cash equal to
$100.00 plus any accrued and unpaid dividends in arrears to, but excluding, the
applicable redemption date (the "Redemption Price"); PROVIDED, HOWEVER, that no
holder of Series A Preferred Stock, directly or indirectly, in the aggregate,
has affirmative voting control of the Corporation either through ownership of
capital stock or other equity securities, or through representation on the Board
of Directors, at the time the Corporation determines to exercise its redemption
right pursuant to this Section 5(a).
(b) MANDATORY REDEMPTION UPON AN IPO. In the event of a sale by
the Corporation of shares of Common Stock in the first underwritten public
offering (the "IPO") of Common Stock pursuant to a registration statement under
the Securities Act of 1933, as amended (the "Securities Act"), the Corporation
shall, within 10 business days from the consummation of the IPO, use the net
proceeds to the Corporation from the IPO (the "IPO Net Proceeds") to redeem, in
part or in whole, the maximum number, rounded downward to the nearest share, of
outstanding shares of Series A Preferred Stock that may be redeemed at the
Redemption Price per share through application of the IPO Net Proceeds.
(c) MANDATORY REDEMPTION UPON A NON-IPO SALE OF CAPITAL STOCK. In
the event of a sale by the Corporation or any of its Restricted Subsidiaries (as
defined below) of shares of their capital stock or other equity securities for
cash proceeds from time to time, other than in the IPO, the Corporation shall,
within 60 days from the consummation of such sale, use the net proceeds to the
Corporation or any of its Restricted Subsidiaries from any such sale (the "Stock
Sale Net Proceeds") to redeem, in whole or in part, the maximum number, rounded
downward to the nearest whole share, of outstanding shares of Series A Preferred
Stock that may be redeemed at the Redemption Price per share through application
of the Stock Sale Net Proceeds. The obligations of this Section 5(c) shall not
apply:
(i) if the aggregate net proceeds in any transaction or
series of transactions with respect to sales of capital stock by the
Corporation or any Restricted Subsidiary does not exceed $10,000,000;
(ii) to sales of capital stock in connection with a joint
venture, strategic alliance or other similar arrangement, in any such case
the primary purpose of which is other than the raising of capital for the
Corporation and the consideration involved in such transaction is not
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predominantly comprised of cash, in each case as determined in good faith
by the Board of Directors; PROVIDED, HOWEVER, that for the purposes of this
Section 5(c)(ii) any transaction or series of transactions that involves
cross-shareholdings obtained through substantially similar cash investments
shall not be deemed to have a primary purpose of raising capital or to
involve predominantly cash consideration; or
(iii) to any issuance of shares of equity securities, or
securities convertible into equity, by the Corporation or a Restricted
Subsidiary, as the case may be, pursuant to benefit plans or arrangements
for employees, officers, directors or consultants, or pursuant to warrants
or convertible subordinated debentures outstanding on the Issue Date.
(d) If the Corporation shall redeem shares of Series A Preferred
Stock pursuant to this Section 5, notice of such redemption shall be given by
certified mail, return receipt requested, postage prepaid, mailed not less than
two days nor more than 45 days prior to the redemption date, to each holder of
record of the shares to be redeemed at such holder's address as the same appears
on the stock books of the Transfer Agent. Any notice that was mailed in the
manner herein provided shall be conclusively presumed to have been duly given on
the date mailed whether or not the holder receives the notice. Each such notice
shall state: (i) the redemption date; (ii) the number of shares of Series A
Preferred Stock to be redeemed and, if fewer than all the shares held by such
holder are to be redeemed, the number of shares to be redeemed from such holder;
(iii) the amount payable; (iv) the place or places where certificates for such
shares are to be surrendered for payment of the Redemption Price; and (v) that
dividends on the shares to be redeemed will cease to accrue on such redemption
date, except as otherwise provided herein.
(e) Upon surrender in accordance with notice given pursuant to
this Section 5 of the certificates for any shares of Series A Preferred Stock
(properly endorsed or assigned for transfer, if the Board of Directors of the
Corporation shall so require and the notice shall so state), such shares shall
be redeemed by the Corporation at the Redemption Price. If fewer than all the
outstanding shares of Series A Preferred Stock are to be redeemed, the number of
shares to be redeemed shall be determined by the Board of Directors in
accordance with this Certificate of Designations and the shares to be redeemed
shall be selected pro rata (with any fractional shares being rounded down to the
nearest whole share). In case fewer than all the shares of Series A Preferred
Stock represented by any such certificate are redeemed, a new certificate shall
be issued representing the unredeemed shares without cost to the holder thereof.
(f) If notice has been mailed as aforesaid, from and after the
redemption date (unless default shall be made by the Corporation in providing
for the payment of the Redemption Price of the shares called for redemption),
(i) except as otherwise provided herein, dividends on the shares of Series A
Preferred Stock so called for redemption shall cease to accrue, (ii) said shares
shall no longer be deemed to be outstanding, and (iii) all rights of the holders
thereof as holders of the Series A Preferred Stock shall cease (except the right
to receive from the Corporation the Redemption Price
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without interest thereon, upon surrender and endorsement of their certificates
if
so required).
(g) As used in this Certificate of Designations, the term
"Restricted Subsidiary" shall be deemed to mean any direct or indirect
subsidiary of the Corporation other than (i) any subsidiary set forth on
Schedule A hereto and (ii) any subsidiary that is formed in connection with a
joint venture, strategic alliance or other similar arrangement and the primary
purpose of which is other than the raising of capital, as determined in good
.faith by the Board of Directors.
SECTION 6. MERGER OR CONSOLIDATION. In the event of a merger or
consolidation of the Corporation with or into any person pursuant to which the
Corporation shall not be the continuing person and that does not constitute a
Liquidation within the meaning of Section 3(d), the Series A Preferred Stock
shall be converted into or exchanged for and shall become preferred shares of
such successor or resulting company or, at the Corporation's sole discretion,
the parent of such successor or resulting company, having in respect of such
successor or resulting company or parent of such successor or resulting company,
substantially the same powers, preferences and relative participating, optional
or other special rights, and the qualifications, limitations or restrictions
thereon, that the Series A Preferred Stock had immediately prior to such
transaction, and with any additional preferences, rights or powers as may be
determined by the Corporation that would not adversely affect the preferences,
rights or powers of the Series A Preferred Stock.
SECTION 7. LIMITATION AND RIGHTS UPON INSOLVENCY. Notwithstanding any
other provision of this Certificate of Designations, the Corporation shall not
be required to pay any dividend on, or to pay any amount in respect to any
redemption of, the Series A Preferred Stock at a time when immediately after
making such payment the Corporation is or would be rendered insolvent (as
defined by applicable law), PROVIDED, that the obligation of the Corporation to
make any such payment shall not be extinguished in the event the foregoing
limitation applies.
SECTION 8. SHARES TO BE RETIRED. Any share of Series A Preferred Stock
redeemed, exchanged or otherwise acquired by the Corporation shall be retired
and canceled and shall upon cancellation be restored to the status of authorized
but unissued shares of preferred stock, subject to reissuance by the Board of
Directors as Series A Preferred Stock or as shares of preferred stock of one or
more other series.
SECTION 9. RECORD HOLDERS. The Corporation and the Transfer Agent, if
any, may deem and treat the record holder of any shares of Series A Preferred
Stock as the true and lawful owner thereof for all purposes, and neither the
Corporation nor the Transfer Agent, if any, shall be affected by any notice to
the contrary.
SECTION 10. TRANSFER RESTRICTIONS. Prior to the one-year anniversary
date of the Issue Date, a holder of Series A Preferred Stock may not effect any
offer, sale, pledge, transfer or other disposition or distribution (or enter
into any agreement with
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respect to any of the foregoing) of Series A Preferred Stock without the prior
written consent of the Corporation.
SECTION 11. LEGENDS.
(a) Prior to the one-year anniversary date of the Issue Date, any
certificate representing shares of Series A Preferred Stock shall bear the
following legend:
THE SHARES OF SERIES A PREFERRED STOCK, PAR VALUE $.01 PER SHARE, OF
THE NASDAQ STOCK MARKET, INC. REPRESENTED BY THIS CERTIFICATE MAY NOT
BE OFFERED, SOLD OR TRANSFERRED BY THE HOLDER HEREOF PRIOR TO MARCH 8,
2003 WITHOUT THE PRIOR WRITTEN CONSENT OF THE NASDAQ STOCK MARKET,
INC.
Subsequent to the one-year anniversary date of the Issue Date, the
Corporation agrees, from time to time and at the request of a holder, to
issue replacement certificates representing such holder's shares of Series
A Preferred Stock that do not bear the legend contained in Section 11(a).
(b) Until no longer required by applicable law, any certificate
representing shares of Series A Preferred Stock shall bear the following legend:
THE SHARES OF SERIES A PREFERRED STOCK, PAR VALUE $.01 PER SHARE, OF
THE NASDAQ STOCK MARKET, INC. REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER
THE SECURITIES LAWS OF ANY STATE OR FOREIGN JURISDICTION AND MAY NOT
BE OFFERED, SOLD OR TRANSFERRED WITHOUT COMPLIANCE WITH APPLICABLE
FEDERAL, STATE OR FOREIGN SECURITIES LAWS.
Subsequent to registration of the Series A Preferred Stock pursuant to
the Securities Act, the Corporation agrees, from time to time and upon
request of a holder, to issue replacement certificates representing such
holder's shares of Series A Preferred Stock that do not bear the legend
contained in Section 11(b).
SECTION 12. NOTICES. Except as may otherwise be provided for herein,
all notices referred to herein shall be in writing, and all notices hereunder
shall be deemed to have been given upon the earlier of (a) receipt of such
notice, (b) three Business Days after the mailing of such notice if sent by
registered mail (unless first-class mail shall be specifically permitted for
such notice under the terms hereof) or (c) the Business Day following the date
such notice was sent by overnight courier, in any case with postage or delivery
charges prepaid, addressed: if to the Corporation, to its offices at One Liberty
Plaza, New York, New York 10006, Attention: General Counsel, or to an agent of
the Corporation designated as permitted by the Certificate of Incorporation, or,
if to any
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holder of the Series A Preferred Stock, to such holder at the address of such
holder of the Series A Preferred Stock as listed in the stock record books of
the Corporation, or as the holder shall have designated by written notice
similarly given by the holder and received by the Corporation.
SECTION 13. OTHER RIGHTS. Other than as may be prescribed by law, the
holders of the Series A Preferred Stock shall not have any other voting rights,
conversion rights, preferences or special rights.
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IN WITNESS WHEREOF, the undersigned has caused this
Certificate of Designations to be executed this 8th day of March, 2002.
THE NASDAQ STOCK MARKET, INC.
By: /s/ David P. Warren
-----------------------------
Name: David P. Warren
Title: Executive Vice President and
Chief Financial Officer
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SCHEDULE A
<Table>
1. Nasdaq Tools, Inc.
2. Nasdaq Global Holdings
3. Nasdaq Global Technology, Ltd.
4. Nasdaq International Ltd.
5. Nasdaq Ltda
6. Nasdaq Europe Planning Company Ltd.
7. Nasdaq Japan, Inc.
8. Nasdaq Europe S.A./N.V.
9. IndigoMarkets Ltd.
10. IndigoMarkets India Private Ltd.
11. Nasdaq Financial Products Services, Inc.
12. Nasdaq International Market Initiatives, Inc.
13. Nasdaq Canada, Inc.
14. Nasdaq Educational Foundation Inc.
15. Nasdaq-BIOS R&D Joint Venture
</Table>