NASDAQ OMX Group (NDAQ)

Terms and Conditions

Pursuant to, and at the closing of, the DIFX Transaction Agreement, in exchange for $50 million, Nasdaq will acquire 33 ¹/3% of the outstanding equity of DIFX.

The following are conditions to the closing of the DIFX Transaction Agreement:

TERMS AND CONDITIONS

In consideration of the mutual covenants and conditions set forth in this Agreement and other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties agree as follows:

Section 1. Definitions. The following initially capitalized words or phrases shall have the meanings set forth below when used in this Agreement:

Section 1.a. Acceptance Testing. “Acceptance Testing” shall mean a series of tests to be conducted by NASD and Nasdaq or their agents of changes to the OTC Systems, including without limitation, Enhancements, new releases, modifications and Other Services agreed to by the parties to be performed by Nasdaq to evaluate whether the Enhancements, new releases, modifications and Other Services satisfy the functional, operational, and performance requirements set forth in the BRD or this Agreement. Acceptance Testing shall be performed within the time frames set forth in the applicable Project Plan as defined in the Statement of Procedures (“SOP”) attached hereto as Exhibit 1.a. A description of Acceptance Testing is contained in the SOP.

Section 1.b. Build. A “Build” shall mean a fully testable configuration of components that provides defined functionality for one specific portion of a computer application as mutually agreed upon by the parties. Enhancements, modifications, releases and Other Services as agreed by the parties will be developed through a series of interrelated Builds.

Section 1.c. Business Continuity Plan. The “Business Continuity Plan” (“BCP”) is a document, which identifies procedures relating to an emergency or significant business disruption. Such procedures must be reasonably designed to enable the NASD to meet its obligations to customers, vendors, members or others and shall be developed in accordance with SEC guidance on BCPs. The BCP must, at a minimum, address: (1) data back-up and recovery (hard copy and electronic); (2) all mission critical systems; (3) financial and operational assessments; (4) alternate communications between employees, NASD, customers, vendors, members, others and the Businesses; (5) alternate communications among those employees of the Businesses (both Nasdaq’s and NASD’s if applicable) necessary to operate the BCP in accordance with the SEC guidance; (6) alternate physical location of Businesses’ employees necessary to operate the Businesses in accordance with the BCP; (7) regulatory reporting; and (8) communications with regulators. A copy of the current version of the BCP is attached hereto at Exhibit 1.c.

Section 1.d. Business Requirements. The term “Business Requirements” shall mean the defined business purposes (including without limitation, functional, performance and operational elements) that the development and operation of the OTC Systems is meant to satisfy. A copy of the current Business Requirements are contained in the Business Requirements Documents (“BRD”) copies of which are attached hereto as Exhibit 1.d.

Section 1.e. Business Subsystems. “Business Subsystems” shall mean those Systems, which are a subset of the OTC Systems, which relate to operation of the Businesses and which do not relate to the operation of other businesses or applications of Nasdaq. Business Subsystems along with any derivatives thereof or modifications thereto shall be owned by NASD.

Section 1.f. Change Procedures. “Change Procedures” shall have the meaning given to it in Exhibit 6.b.

Section 1.g. Combined OTC Software. “Combined OTC Software” shall mean the Software (object and source code) licensed or developed by Nasdaq (or a contracted service provider) for functions related to the Businesses and which satisfies functionality for other Nasdaq businesses which is set forth in Exhibit 1.z., and which is also included in the BRD. Combined OTC Software shall be owned by Nasdaq.

Section 1.h. Commercially Reasonable. “Commercially Reasonable” shall mean that a party will make such efforts as are reasonable in the light of the standards of the industry and of the other party’s reasonable expectations, provided, however, that meeting the standard of commercially reasonable does not and will not require a party to disregard its own interests. Meeting a standard of commercially reasonable may require a party to incur minor losses for the other party’s sake but in no event will it require the party to imperil its own existence or to make a total effort to fulfill the obligation irrespective of all other considerations.