Exhibit 1.01
THIRD AMENDMENT TO VOTING TRUST
AGREEMENT
THIS THIRD AMENDMENT (this ”
Third Amendment ”), dated as of August 31, 2005, by
and among the National Association of Securities Dealers, Inc., a
Delaware non-stock corporation (the ” NASD ”),
The Nasdaq Stock Market, Inc., a Delaware corporation (the ”
Company ”), and The Bank of New York, a New York
banking corporation (“ BONY ”), amends and
supplements the Voting Trust Agreement, dated as of June 28, 2000,
as amended by the First Amendment to such agreement, made as of
January 18, 2001 (the ” First Amendment ”), and
the Second Amendment to such agreement, made as of July 18, 2002
(the ” Second Amendment ”), each by and among
the NASD, the Company and BONY (the Voting Trust Agreement as so
amended being referred to herein as, the ” Voting Trust
Agreement ”). Unless otherwise provided in this Third
Amendment, capitalized terms used but not otherwise defined herein
shall have the meanings ascribed thereto in the Voting Trust
Agreement.
WHEREAS, the Company previously has
issued to the NASD one share of Series B Preferred Stock (the
” Series B Preferred ”), which provides NASD
with one vote more than a majority on matters submitted to a vote
of shareholders of the Company;
WHEREAS, due to the issuance to the
NASD of the Series B Preferred, the need for the NASD, prior to
Exchange Registration, to retain voting rights over the shares of
Common Stock subject to the Voting Trust Agreement has been
eliminated;
WHEREAS, the Company intends to file
with the United States Securities and Exchange Commission pursuant
to the Securities Act of 1933, as amended, one or more registration
statements to facilitate the resale by exercising Warrant Holders
of Purchased Shares (each, a “ Registration Statement
”);
WHEREAS, NASD and the Company desire
prior to Exchange Registration to provide holders of Voting Trust
Certificates the opportunity, upon effectiveness of an applicable
Registration Statement, to exchange such Voting Trust Certificates
for certificates representing the appropriate number of Purchased
Shares and enable holders of Warrants to receive upon exercise of
such Warrants certificates representing the Shares underlying the
Warrants so exercised instead of Voting Trust Certificates;
and
WHEREAS, the Company, the NASD and
BONY desire to amend the Voting Trust Agreement to reflect such
changes in the Voting Trust Agreement.
NOW, THEREFORE, in consideration of
the promises, covenants and the mutual obligations hereinafter set
forth, the parties hereby agree as follows:
1. Exchange of Outstanding Voting
Trust Certificates . (a) Section 3 of the Voting Trust
Agreement is hereby amended and supplemented by replacing in its
entirety the first sentence thereof with the following:
“Subject to Section 4 hereof,
until the Securities and Exchange Commission grants national
securities exchange status under the Se
