[Federal Register Volume 76, Number 203 (Thursday, October 20, 2011)]
[Notices]
[Pages 65230-65247]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-27197]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-65567; File No. SR-NYSEArca-2011-72]
Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing
of Proposed Rule Change Relating to a Corporate Transaction in Which
Its Indirect Parent, NYSE Euronext, Will Become a Wholly Owned
Subsidiary of Alpha Beta Netherlands Holding N.V.
October 14, 2011.
Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of
1934 (the ``Exchange Act''), and Rule 19b-4 thereunder,\2\ notice is
hereby given that on October 12, 2011, NYSE Arca, Inc. (the ``NYSE
Arca'') filed with the Securities and Exchange Commission (the
``Commission'') the proposed rule change as described in Items I and II
[[Page 65231]]
below, which Items have been prepared substantially by NYSE Arca. The
Commission is publishing this notice to solicit comments on the
proposed rule change from interested persons.
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\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
A. Overview of the Proposed Combination
NYSE Arca, a Delaware corporation, registered national securities
exchange and self-regulatory organization, is submitting this rule
filing (the ``Proposed Rule Change'') to the Commission in connection
with the proposed business combination (the ``Combination'') of NYSE
Euronext, a Delaware corporation, and Deutsche B[ouml]rse AG, an
Aktiengesellschaft organized under the laws of the Federal Republic of
Germany (``Deutsche B[ouml]rse'').
NYSE Euronext owns 100% of the equity interest of NYSE Group, Inc.,
a Delaware corporation (``NYSE Group''), which in turn directly or
indirectly owns (1) 100% of the equity interest of three registered
national securities exchanges and self-regulatory organizations
(together, the ``NYSE Exchanges'')--NYSE Arca, New York Stock Exchange,
LLC (``Exchange'') and NYSE Amex LLC (``NYSE Amex'')--and (2) 100% of
the equity interest of NYSE Market, Inc. (``NYSE Market''), NYSE
Regulation, Inc. (``NYSE Regulation''), NYSE Arca L.L.C. (``NYSE Arca
LLC'') and NYSE Arca Equities, Inc. (``NYSE Arca Equities'') (the NYSE
Exchanges, together with NYSE Market, NYSE Regulation, NYSE Arca LLC
and NYSE Arca Equities, the ``NYSE U.S. Regulated Subsidiaries'' and
each, a ``NYSE U.S. Regulated Subsidiary''). The Exchange and NYSE Amex
will be separately filing a proposed rule change in connection with the
Combination that will be substantially the same as the Proposed Rule
Change.
Deutsche B[ouml]rse indirectly owns 50% of the equity interest of
International Securities Exchange Holdings, Inc. (``ISE Holdings''),
which in turn holds 100% of the equity interest of International
Securities Exchange, LLC (``ISE''), a registered national securities
exchange and self-regulatory organization. ISE Holdings also holds
31.54% of the equity interest of Direct Edge Holdings, LLC (``Direct
Edge Holdings''), which in turn indirectly holds 100% of the equity
interest of two registered national securities exchanges and self-
regulatory organizations--EDGA Exchange, Inc. (``EDGA'') and EDGX
Exchange, Inc. (``EDGX'') (each of ISE, EDGA and EDGX, a ``DB
Exchange'' and a ``DB U.S. Regulated Subsidiary'' and together, the
``DB Exchanges'' and the ``DB U.S. Regulated Subsidiaries''). The DB
Exchanges will be separately filing a proposed rule change in
connection with the Combination.
If the Combination is completed, the businesses of NYSE Euronext
and Deutsche B[ouml]rse, including the NYSE U.S. Regulated Subsidiaries
and the DB U.S. Regulated Subsidiaries (together, the ``U.S. Regulated
Subsidiaries'' and each, a ``U.S. Regulated Subsidiary''), will be held
under a single, publicly traded holding company organized under the
laws of the Netherlands (``Holdco'').\3\ The Proposed Rule Change, if
approved by the Commission, will not be operative until the
consummation of the Combination.
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\3\ Holdco is currently named ``Alpha Beta Netherlands Holding
N.V.,'' but it is expected that Holdco will be renamed prior to the
completion of the Combination to a name agreed between NYSE Euronext
and Deutsche B[ouml]rse.
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B. Summary of Proposed Rule Change
NYSE Arca is proposing that, pursuant to the Combination, its
indirect parent, NYSE Euronext, will become a wholly owned subsidiary
of Holdco. In addition, NYSE Arca is proposing that, in connection with
the Combination, the Commission approve certain amendments to the
organizational and other governance documents of Holdco, NYSE Euronext,
NYSE Group and certain of the NYSE U.S. Regulated Subsidiaries as well
as certain rules of the Exchange, NYSE Amex and NYSE Arca Equities.\4\
The Proposed Rule Change is summarized as follows:
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\4\ Proposed amendments to the governance documents and rules of
the Exchange and/or NYSE Amex are included in this Proposed Rule
Change, and the text of those proposed amendments are attached as
exhibits to this Proposed Rule Change, because they are part of the
overall set of changes proposed by the NYSE Exchanges to be made in
connection with the Combination.
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Proposed Approval of Waiver of Ownership and Voting
Restrictions of NYSE Euronext. The Amended and Restated Certificate of
Incorporation of NYSE Euronext (the ``NYSE Euronext Certificate'')
currently restricts any person, either alone or together with its
related persons, from being entitled to vote or cause the voting of
shares to the extent that such shares represent in the aggregate more
than 10% of the outstanding votes entitled to be cast on any matter or
beneficially owning shares of stock of NYSE Euronext representing in
the aggregate more than 20% of the outstanding votes entitled to be
cast on any matter.\5\ NYSE Euronext is required to disregard votes
which are in excess of the voting restriction and to repurchase NYSE
Euronext shares that are held in excess of the ownership restriction.
The NYSE Euronext Certificate and the Amended and Restated Bylaws of
NYSE Euronext (the ``NYSE Euronext Bylaws'') provide that the board of
directors of NYSE Euronext may waive these voting and ownership
restrictions if it makes certain determinations and resolves to
expressly permit the voting and ownership that is subject to such
restrictions, and such resolutions have been filed with, and approved
by, the Commission under Section 19(b) of the Exchange Act \6\ and
filed with, and approved by, each European Regulator (as defined in the
NYSE Euronext Certificate) having appropriate jurisdiction and
authority.\7\ Acting pursuant to this waiver provision, the board of
directors of NYSE Euronext has adopted the resolutions set forth in
Exhibit 5A (the ``NYSE Euronext Resolutions'') in order to permit
Holdco to own and vote 100% of the outstanding common stock of NYSE
Euronext as of and after the Combination. NYSE Arca is requesting
approval by the Commission of the NYSE Euronext Resolutions in order to
allow the Combination to take place.
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\5\ See Amended and Restated Certificate of Incorporation of
NYSE Euronext, Article V Sections 1 & 2.
\6\ 15 U.S.C. 78s(b).
\7\ See Amended and Restated Certificate of Incorporation of
NYSE Euronext, Article V Sections 1 & 2, and Amended and Restated
Bylaws of NYSE Euronext, Section 10.12.
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Proposed Amendments to Voting and Ownership Restrictions
of NYSE Euronext. Because NYSE Euronext would become a wholly owned
subsidiary of Holdco as a result of the Combination, NYSE Arca is
proposing to amend the voting and ownership restrictions in the NYSE
Euronext Certificate to be consistent with the analogous provisions in
the Second Amended and Restated Certificate of Incorporation of NYSE
Group (the ``NYSE Group Certificate''): (1) First, the NYSE Euronext
Certificate would be amended to provide that all of the issued and
outstanding shares of NYSE Euronext will be held by Holdco, and that
Holdco may not transfer or assign any shares without approval by the
Commission under the Exchange Act and the relevant European Regulators
under the applicable European Exchange Regulations (as defined in the
[[Page 65232]]
NYSE Euronext Certificate); \8\ and (2) second, the NYSE Euronext
Certificate would be amended to provide that the voting and ownership
restrictions contained therein would only apply in the event that
Holdco does not own all of the issued and outstanding shares of NYSE
Euronext and only for so long as NYSE Euronext directly or indirectly
controls any U.S. Regulated Subsidiary or any European Market
Subsidiary (as such terms are defined in the NYSE Euronext
Certificate).\9\ In addition, the voting and ownership restrictions in
the NYSE Euronext Certificate would be amended to (a) Change the 10%
threshold for the voting restriction to a 20% threshold; (b) change the
20% threshold for the ownership restriction to a 40% restriction
(except that a 20% ownership restriction would continue to apply to any
person who is, or with respect to whom a related person is, (A) A
Member of the Exchange, as defined in the NYSE Euronext Certificate (a
``NYSE Member''), (B) a Member of NYSE Amex as defined in the current
NYSE Euronext Bylaws (including any person who is a related person of
such member, an ``Amex Member''), (C) an ETP Holder of NYSE Arca
Equities, as defined in the NYSE Euronext Certificate (an ``ETP
Holder''), or (D) an OTP Holder or OTP Firm of NYSE Arca, as defined in
the NYSE Euronext Certificate (an ``OTP Holder'' and ``OTP Firm,''
respectively)); (c) add the provision, which is currently in the NYSE
Euronext Bylaws, that requires the board of directors of NYSE Euronext
to make certain determinations relating to NYSE Amex in order to waive
the voting and ownership restrictions to the NYSE Euronext Certificate,
and delete this provision from the NYSE Euronext Bylaws; (d) update the
names of certain European regulatory entities in the definition of
``European Regulator'' (as currently defined in the NYSE Euronext
Certificate and the NYSE Euronext Bylaws); and (e) expand the
definition of ``Related Persons'' to address Amex Members in a manner
that is substantively consistent with provisions currently located in
the NYSE Rules.
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\8\ The analogous provision in the NYSE Group Certificate is
Section 4(a) of Article IV.
\9\ The analogous provision in the NYSE Group Certificate is
Section 4(b) of Article IV.
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Proposed Amendments to Voting and Ownership Restrictions
of NYSE Group. The NYSE Group Certificate currently provides that, if
NYSE Euronext and the trust \10\ established pursuant to the Trust
Agreement, dated as of April 4, 2007, by and among NYSE Euronext, NYSE
Group and the other parties thereto, do not hold 100% of the
outstanding stock of NYSE Group, no person, either alone or together
with its related persons, may be entitled to vote or cause the voting
of shares to the extent that such shares represent in the aggregate
more than 10% of the outstanding votes entitled to be cast on any
matter or beneficially own shares of stock of NYSE Group representing
in the aggregate more than 20% of the outstanding votes entitled to be
cast on any matter.\11\ NYSE Group is required to disregard votes which
are in excess of the voting restriction and to repurchase NYSE Group
shares which are held in excess of the ownership restriction.\12\ Under
the Proposed Rule Change, the voting and ownership restrictions in the
NYSE Group Certificate would be amended to (1) Change the 10% threshold
for the voting restriction to a 20% threshold; (2) change the 20%
threshold for the ownership restriction to a 40% restriction (except
that a 20% ownership restriction would continue to apply to any person
who is, or with respect to whom a related person is, a NYSE Member, an
Amex Member, an ETP Holder or an OTP Holder or OTP Firm); (3) provide
that the ownership and voting limitations would apply only for so long
as NYSE Group directly or indirectly controls any Regulated Subsidiary
(as defined in the NYSE Group Certificate); and (4) expand the
definition of ``Related Persons'' regarding Amex Members so that it is
consistent with the language in the NYSE Rules, which language will be
incorporated in the NYSE Euronext Certificate pursuant to this Proposed
Rule Change.
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\10\ No changes are being proposed to the current Delaware trust
and stichting for ``regulatory overspill'' matters, except that
references to the Nominating and Governance Committee of NYSE
Euronext would be replaced with references to the Holdco Nominating,
Governance and Corporate Responsibility Committee.
\11\ See Second Amended and Restated Certificate of
Incorporation of NYSE Group, Inc., Article IV Section 4(b)(1) & (2).
\12\ See Second Amended and Restated Certificate of
Incorporation of NYSE Group, Inc., Article IV Sections 4(b)(1)(A) &
4(b)(2)(D).
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Proposed Amendments to Certain Public-Company-Related and
Other Provisions of NYSE Euronext Organizational and Corporate
Governance Documents. Under the Proposed Rule Change, in light of the
fact that NYSE Euronext would become a wholly owned subsidiary of
Holdco following completion of the Combination, the NYSE Euronext
Certificate and the NYSE Euronext Bylaws would be amended to (1)
Simplify and provide for a more efficient governance and capital
structure that is appropriate for a wholly owned subsidiary; (2)
conform certain provisions to analogous provisions of the
organizational documents of NYSE Group, which will likewise be an
indirect wholly owned subsidiary of Holdco following completion of the
Combination; and (3) make certain clarification and technical edits
(for example, to conform the use of defined terms and other provisions,
and to update cross-references to sections, consistent with the other
amendments to the NYSE Euronext Certificate and the NYSE Euronext
Bylaws set forth in this Proposed Rule Change). In addition, the
current Independence Policy of the NYSE Euronext board of directors
would cease to be in effect.
Proposed Amendments to Board Composition Requirements for
the Exchange, NYSE Amex, NYSE Market and NYSE Regulation. Under the
Proposed Rule Change, certain provisions of the Third Amended and
Restated Operating Agreement, dated as of April 1, 2009, of the
Exchange (the ``Exchange Operating Agreement'') relating to the
composition of the Exchange's board of directors would be amended,
including to provide that the independent directors of the Exchange
would perform certain functions currently allocated to the NYSE
Euronext nominating and governance committee and that the Exchange's
board of directors would have its own director independence policy,
instead of referring to the director independence policy of NYSE
Euronext. Substantially the same revisions would be made to the
analogous provisions of the Amended and Restated Operating Agreement of
NYSE Amex,\13\ the Amended and Restated Bylaws of NYSE Market \14\ and
the Third Amended and Restated Bylaws of NYSE Regulation.\15\
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\13\ See Amended and Restated Operating Agreement of NYSE Amex
LLC, Section 2.03(a).
\14\ See Amended and Restated Bylaws of NYSE Market, Inc.,
Article III Section 1.
\15\ See Third Amended and Restated Bylaws of NYSE Regulation,
Inc., Article III Section 1.
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Proposed Amendments to the NYSE Group Certificate and NYSE
Group Bylaws. Under the Proposed Rule Change, the NYSE Group
Certificate and the NYSE Group Bylaws would be amended in order to (1)
Conform certain provisions to analogous provisions of the
organizational documents of NYSE Euronext, which will likewise be a
wholly owned subsidiary of Holdco following completion of the
Combination; and (2) make certain clarification and technical edits
(for example, to conform the use of defined terms and other provisions
to be consistent with the other amendments to the NYSE Group
Certificate and the
[[Page 65233]]
NYSE Group Bylaws set forth in this Proposed Rule Change).
Proposed Amendments to the Exchange Rules, NYSE Amex Rules
and NYSE Arca Equities Rules. Under the Proposed Rule Change, certain
technical amendments would be made to the rules of the Exchange (the
``Exchange Rules'') to (1) Replace references therein to ``NYSE
Euronext'' with references to Holdco; and (2) delete the definitions of
``member'' and ``member organization'' relating to NYSE Amex which are
set forth in Rule 2 for purposes of Section 1(L) of Article 5 of the
NYSE Euronext Certificate, because the Proposed Rule Change will revise
the NYSE Euronext Certificate to include analogous language relating to
NYSE Amex Members. In addition, certain technical amendments would be
made to the rules of NYSE Amex (the ``NYSE Amex Rules'') and to the
rules of NYSE Arca Equities (the ``NYSE Arca Equities Rules'') to
replace references therein to ``NYSE Euronext'' with references to
Holdco.
The text of the proposed amended NYSE Euronext Certificate, NYSE
Euronext Bylaws, NYSE Group Certificate, NYSE Group Bylaws, Exchange
Operating Agreement, Amended and Restated Operating Agreement of NYSE
Amex, Amended and Restated Bylaws of NYSE Market, Third Amended and
Restated Bylaws of NYSE Regulation, Exchange Rules, form of Director
Independence Policy for certain NYSE U.S. Regulated Subsidiaries, NYSE
Amex Rules and NYSE Arca Equities Rules are attached to the Proposed
Rule Change as Exhibits 5B, 5C, 5D, 5E, 5F, 5G, 5H, 5I, 5J, 5K, 5P and
5Q, respectively.
Under the Proposed Rule Change, Holdco would take appropriate steps
to incorporate voting and ownership restrictions, requirements relating
to submission to jurisdiction, access to books and records and other
requirements related to its control of the U.S. Regulated Subsidiaries.
Specifically, the Articles of Association of Holdco in effect as of the
completion of the Combination (the ``Holdco Articles'') would contain
provisions \16\ to incorporate these concepts with respect to itself,
as well as its directors, officers, employees and agents (as
applicable):
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\16\ The text of the proposed Holdco Articles is attached to the
Proposed Rule Change as Exhibit 5L.
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Voting and Ownership Restrictions in the Holdco Articles.
The Holdco Articles would contain voting and ownership restrictions
that will restrict any person, either alone or together with its
related persons, from having voting control over Holdco shares
entitling the holder thereof to cast more than 20% of the then
outstanding votes entitled to be cast on a matter or beneficially
owning Holdco shares representing more than 40% of the outstanding
votes entitled to be cast on a matter (except that a 20% ownership
restriction would apply to any person who is a NYSE Member, an Amex
Member, an ETP Holder, an OTP Holder or OTP Firm, a Member (as such
term is defined in Section 3(a)(3)(A) of the Exchange Act) of ISE (an
``ISE Member''), or a member of EDGA or EDGX (as such terms are defined
in the rules of EDGA and EDGX, respectively, an ``EDGA Member'' and
``EDGX Member,'' respectively)). The Holdco Articles would provide that
Holdco will be required to disregard any votes purported to be cast in
excess of the voting restriction. In the event that any such person(s)
exceeds the ownership restriction, it will be required to offer for
sale and transfer the number of Holdco shares required to comply with
the ownership restriction, and the rights to vote, attend general
meetings of Holdco shareholders and receive dividends or other
distributions attached to shares held in excess of the 40% threshold
(or 20% threshold, if applicable) will be suspended for so long as such
threshold is exceeded. If such person(s) fails to comply with the
transfer obligation within two weeks, then the Holdco Articles would
provide that Holdco will be irrevocably authorized to take actions on
behalf of such person(s) in order to cause it to comply with such
obligations. Consistent with the current NYSE Euronext Certificate, the
Holdco board of directors may waive the voting and ownership
restrictions if it makes certain determinations (which will be subject
to the same requirements which are currently required to be made by the
board of directors of NYSE Euronext and ISE Holdings in order to waive
the voting and ownership restrictions in the current NYSE Euronext
Certificate and the Certificate of Incorporation of ISE Holdings (the
``ISE Certificate''), as applicable) and resolves to expressly permit
the voting and ownership that is subject to such restrictions, and such
resolutions have been filed with, and approved by, the Commission under
Section 19(b) of the Exchange Act and filed with, and approved by, the
relevant European Regulators having appropriate jurisdiction and
authority.
Jurisdiction. The Holdco Articles will provide that Holdco
and its directors, and to the extent they are involved in the
activities of the U.S. Regulated Subsidiaries, (x) Holdco's officers,
and (y) those of its employees whose principal place of business and
residence is outside the United States, will be deemed to irrevocably
submit to the jurisdiction of the U.S. federal courts and the
Commission for the purposes of any suit, action or proceeding pursuant
to the U.S. federal securities laws and the rules or regulations
thereunder, arising out of, or relating to, the activities of the U.S.
Regulated Subsidiaries. In addition, the Holdco Articles would provide
that so long as Holdco directly or indirectly controls any U.S.
Regulated Subsidiary, the directors, officers and employees will be
deemed to be directors, officers and employees of such U.S. Regulated
Subsidiaries for purposes of, and subject to oversight pursuant to, the
Exchange Act. The Holdco Articles would provide that Holdco will take
reasonable steps necessary to cause its officers, directors and
employees, prior to accepting a position as an officer, director or
employee, as applicable, to agree and consent in writing to the
applicability to them of these jurisdictional and oversight provisions
with respect to their activities related to any U.S. Regulated
Subsidiary. Furthermore, the Holdco Articles would provide that no
person may be a director of Holdco unless he or she has agreed and
consented in writing to the applicability to him or her of these
jurisdictional and oversight provisions with respect to his or her
activities related to any U.S. Regulated Subsidiary. Holdco would sign
an irrevocable agreement and consent for the benefit of each U.S.
Regulated Subsidiary that it will comply with these provisions of the
Holdco Articles.
Books and Records. The Holdco Articles would provide that
for so long as Holdco directly or indirectly controls any U.S.
Regulated Subsidiary, the books, records and premises of Holdco will be
deemed to be the books, records and premises of such U.S. Regulated
Subsidiaries for purposes of, and subject to oversight pursuant to, the
Exchange Act, and that Holdco's books and records will at all times be
made available for inspection and copying by the Commission, and by any
U.S. Regulated Subsidiary to the extent they are related to the
activities of such U.S. Regulated Subsidiary or any other U.S.
Regulated Subsidiary over which such U.S. Regulated Subsidiary has
regulatory authority or oversight. In addition, Holdco's books and
records related to the U.S. Regulated Subsidiaries will be maintained
within the United States, except that to the extent that books and
records may relate to both European subsidiaries and U.S.
[[Page 65234]]
Regulated Subsidiaries, Holdco may maintain such books and records
either in the home jurisdiction of one or more European subsidiaries or
in the United States.
Amendments to Holdco Articles. The Holdco Articles would
provide that before any amendment to the Holdco Articles may be
effectuated by execution of a notarial deed of amendment, such
amendment would need to be submitted to the board of directors of each
U.S. Regulated Subsidiary and, if so determined by any such board,
would need to be filed with, or filed with and approved by, the
Commission before such amendment may become effective.
Additional Matters. The Holdco Articles would include
provisions regarding cooperation with the Commission and the U.S.
Regulated Subsidiaries, compliance with U.S. federal securities laws,
confidentiality of information regarding the U.S. Regulated
Subsidiaries' self-regulatory function, preservation of the
independence of the U.S. Regulated Subsidiaries' self-regulatory
function, and directors' consideration of the effect of Holdco's
actions on the U.S. Regulated Subsidiaries' ability to carry out their
respective responsibilities under the Exchange Act. In addition, the
Holdco Articles would provide that Holdco will take reasonable steps
necessary to cause its officers, directors and employees, prior to
accepting a position as an officer, director or employee, as
applicable, of Holdco to agree and consent in writing to the
applicability to them of these provisions of the Holdco Articles with
respect to their activities related to any U.S. Regulated Subsidiary.
The Holdco Articles would also provide that no person may be a director
of Holdco unless he or she has agreed and consented in writing to the
applicability to him or her of these provisions with respect to his or
her activities related to any U.S. Regulated Subsidiary. Holdco will
sign an irrevocable agreement and consent for the benefit of each U.S.
Regulated Subsidiary \17\ that it will comply with these provisions of
the Holdco Articles.\18\
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\17\ The form of Holdco's agreement and consent is attached as
Exhibit 5M to this Proposed Rule Change.
\18\ The Holdco Articles will also set forth certain
restrictions and requirements relating to Holdco's European
subsidiaries and applicable European regulatory matters, which will
be substantially consistent with the analogous restrictions and
requirements applicable with respect to Holdco's U.S. Regulated
Subsidiaries and U.S. regulatory matters.
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In addition, Holdco would adopt a Director Independence Policy in
the form attached hereto as Exhibit 5N (the ``Holdco Independence
Policy''), which would be substantially similar to the current
Independence Policy of the NYSE Euronext board of directors, except for
certain changes described in this Proposed Rule Change.
The text of the Proposed Rule Change is available at NYSE Arca, the
Commission's Public Reference Room, and on the Web site of NYSE
Euronext (http://www.nyse.com). The text of Exhibits 5A through 5Q of
the Proposed Rule Change are also available on NYSE Euronext's Web site
and on the Commission's Web site (http://www.sec.gov/rules/sro.shtml).
Other than as described herein and set forth in the attached
Exhibits 5A through 5Q, NYSE Arca will continue to conduct its
regulated activities in the manner currently conducted and will not
make any changes to its regulated activities in connection with the
Combination. If NYSE Arca determines to make any such changes, it will
seek approval of the Commission.
II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
In its filing with the Commission, NYSE Arca has included
statements concerning the purpose of, and basis for, the Proposed Rule
Change. The text of these statements may be examined at the places
specified in Item IV below. NYSE Arca has prepared summaries, set forth
in Sections A, B and C below, of the most significant aspects of such
statements.
A. Purpose [sic]
The purpose of this rule filing is to adopt the rules necessary to
permit NYSE Euronext to effect the Combination and to amend certain
provisions of the organizational and other governance documents of NYSE
Euronext, NYSE Group and certain of the NYSE U.S. Regulated
Subsidiaries, including certain Exchange Rules, NYSE Amex Rules and
NYSE Arca Equities Rules.
1. Overview of the Combination
NYSE Arca is submitting this Proposed Rule Change to the Commission
in connection with the Combination of NYSE Euronext and Deutsche
B[ouml]rse. The Combination will create a holding company, Holdco,
which will hold the businesses of NYSE Euronext and Deutsche
B[ouml]rse. Following the Combination, each of NYSE Euronext and
Deutsche B[ouml]rse will be a separate subsidiary of Holdco. Holdco
expects the Combination will create a group that will be both a world
leader in derivatives and risk management and the premier global venue
for capital raising, with a truly global franchise and presence in many
of the world's financial centers including New York, London, Frankfurt,
Paris and Luxembourg. This global presence should facilitate providing
world-class services to global and local customers worldwide.
Other than as described herein, Holdco and the NYSE Exchanges will
not make any changes to the regulated activities of the NYSE U.S.
Regulated Subsidiaries in connection with the Combination, and, other
than as described in the separate proposed rule changes filed by each
of the DB Exchanges in connection with the Combination, Holdco and the
DB Exchanges will not make any changes to the regulated activities of
the DB U.S. Regulated Subsidiaries in connection with the Combination.
If Holdco determines to make any such changes to the regulated
activities of any U.S. Regulated Subsidiary, it will seek the approval
of the Commission. The Proposed Rule Change, if approved by the
Commission, will not be operative until the consummation of the
Combination.
The Combination will occur pursuant to the terms of the Business
Combination Agreement, dated as of February 15, 2011, as amended by
Amendment No. 1 dated as of May 2, 2011 and by Amendment No. 2 dated as
of June 16, 2011 (as it may be further amended from time to time, the
``Combination Agreement''), by and among NYSE Euronext, Deutsche
B[ouml]rse, Holdco and Pomme Merger Corporation, a Delaware corporation
and newly formed wholly owned subsidiary of Holdco (``Merger Sub'').
Subject to the terms and conditions set forth in the Combination
Agreement and in compliance with applicable law, Holdco has conducted a
public exchange offer (the ``Exchange Offer''), in which shareholders
of Deutsche B[ouml]rse have been afforded the opportunity to tender
each share of Deutsche B[ouml]rse for one ordinary share of Holdco
(each, a ``Holdco Share'').
Immediately after the time that Holdco accepts for exchange, and
exchanges, the Deutsche B[ouml]rse shares that are validly tendered and
not withdrawn in the Exchange Offer, Merger Sub will merge with and
into NYSE Euronext, as a result of which NYSE Euronext will become a
wholly owned subsidiary of Holdco (the ``Merger''). In the Merger, each
outstanding share of NYSE Euronext common stock will be converted into
the right to receive 0.47 of a fully paid
[[Page 65235]]
and non-assessable Holdco Share. NYSE Euronext's obligation to complete
the Merger is subject to the completion of the Exchange Offer and the
acquisition by Holdco of all of the Deutsche B[ouml]rse shares validly
tendered and not withdrawn in the Exchange Offer. The completion of the
Exchange Offer (and, therefore, the completion of the Merger) is
subject to the satisfaction of a number of conditions, including that
Deutsche B[ouml]rse shares representing at least 75% of the Deutsche
B[ouml]rse shares outstanding, on a fully diluted basis, must be
validly tendered and not withdrawn in the Exchange Offer, and that
holders of a majority of the outstanding shares of NYSE Euronext shall
have adopted the Combination Agreement. Both of these conditions have
been satisfied.
Following the completion of the Exchange Offer, and depending on
the percentage of Deutsche B[ouml]rse shares acquired by Holdco in the
Exchange Offer, Deutsche B[ouml]rse and Holdco intend to complete a
post-completion reorganization pursuant to which Holdco will enter into
a domination agreement, or a combination of a domination agreement and
a profit and loss transfer agreement, pursuant to which the remaining
shareholders of Deutsche B[ouml]rse will have limited rights, including
a limited ability to participate in the profits of Deutsche B[ouml]rse.
Holdco expects the Combination will create a group that will be
both a world leader in derivatives and risk management and the premier
global venue for capital raising, with a truly global franchise and
presence in many of the world's financial centers including New York,
London, Frankfurt, Paris and Luxembourg. This global presence should
facilitate providing world-class services to global and local customers
worldwide. Following the Combination, Holdco and its subsidiaries
(together, the ``Holdco Group'') expect to serve as a benchmark
regulatory model, facilitating transparency and harmonization of
capital markets globally, while continuing to operate all national
exchanges under local regulatory frameworks and their respective brand
names.
2. Overview of the Holdco Group Following the Combination
Following the Combination, Holdco will be a for-profit, publicly
traded corporation formed under the laws of the Netherlands and will
act as the holding company for the businesses of NYSE Euronext and
Deutsche B[ouml]rse. Holdco will hold all of the equity interests in
NYSE Euronext, which holds (1) 100% of the equity interest of NYSE
Group (which, in turn, directly or indirectly holds 100% of the equity
interests of the NYSE U.S. Regulated Subsidiaries) and (2) 100% of the
equity interest of Euronext N.V. (which, in turn, directly or
indirectly holds 100% of the equity interests of trading markets in
Belgium, France, the Netherlands, Portugal and the United Kingdom).
Holdco will also hold a majority of the equity interests in Deutsche
B[ouml]rse, which indirectly holds 50% of the equity interest of ISE
Holdings (which, in turn, holds (1) 100% of the equity interest of ISE
and (2) 31.54% of the equity interest of Direct Edge Holdings). Direct
Edge Holdings indirectly holds 100% of the equity interest of EDGA and
EDGX. Holdco intends to list its ordinary shares on the New York Stock
Exchange, the Frankfurt Stock Exchange and Euronext Paris. The Holdco
Group will have dual headquarters in Frankfurt and New York.
After the Combination, NYSE Group will continue to be directly
wholly owned by NYSE Euronext and will continue to directly or
indirectly own the three NYSE Exchanges--the Exchange, NYSE Arca and
NYSE Amex--which provide marketplaces where investors buy and sell
listed companies' common stock and other securities as well as equity
options and securities traded on the basis of unlisted trading
privileges. NYSE Regulation, Inc., an indirect not-for-profit
subsidiary of NYSE Group, oversees FINRA's performance of certain
market surveillance and enforcement functions for NYSE Euronext's U.S.
securities exchanges, enforces listed company compliance with
applicable standards, and oversees regulatory policy determinations,
rule interpretation and regulation related rule development.
In Europe, NYSE Euronext, Deutsche B[ouml]rse and their respective
subsidiaries own several European exchanges, including trading
operations on regulated and non-regulated markets for cash products in
Germany, France, Belgium, the Netherlands, and Portugal and derivatives
in the United Kingdom and in the five above-mentioned locations. As a
result, the activities of the NYSE Euronext and Deutsche B[ouml]rse
European markets are or may be subject to the jurisdiction and
authority of a number of European regulators, including the German
Federal Financial Supervisory Authority (Bundesanstalt f[uuml]r
Finanzdienstleistungsaufsicht), the Hessian Exchange Supervisory
Authority, the Dutch Minister of Finance, the French Minister of the
Economy, the French Financial Market Authority (Autorit[eacute] des
March[eacute]s Financiers), the French Prudential Supervisory Authority
(Autorit[eacute] de Contr[ocirc]le Prudentiel), the Netherlands
Authority for the Financial Markets (Autoriteit Financi[euml]le
Markten), the Belgian Financial Services and Markets Authority
(Autorit[eacute] des Services et March[eacute]s Financiers), the
Portuguese Securities Market Commission (Comiss[atilde]o do Mercado de
Valores Mobili[aacute]rios--CMVM) and the U.K. Financial Services
Authority (FSA).
Other than certain modifications described herein, the current
corporate structure, governance and self-regulatory independence and
separation of each NYSE U.S. Regulated Subsidiary will be preserved.
Specifically, after the Combination, NYSE Group's businesses and assets
will continue to be structured as follows:
The Exchange will remain a direct wholly owned subsidiary
of NYSE Group and an indirectly wholly owned subsidiary of NYSE
Euronext.
NYSE Market will remain a wholly owned subsidiary of the
Exchange and will continue to conduct the Exchange's business.
NYSE Regulation will remain a wholly owned subsidiary of
the Exchange and continue to perform, and/or oversee the performance
of, regulatory responsibilities of the Exchange pursuant to a
delegation agreement with the Exchange and regulatory functions of NYSE
Arca and NYSE Amex pursuant to services agreements with them.\19\
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\19\ Certain regulatory functions have been allocated to, and/or
are otherwise performed by, FINRA.
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Archipelago Holdings, Inc., a Delaware corporation (``Arca
Holdings''), will remain a wholly owned subsidiary of NYSE Group and
indirect wholly owned subsidiary of NYSE Euronext.
NYSE Arca Holdings, Inc., a Delaware corporation (``NYSE
Arca Holdings''), and NYSE Arca, L.L.C., a Delaware limited liability
company (``NYSE Arca LLC''), will remain wholly owned subsidiaries of
Arca Holdings.
NYSE Arca will remain a wholly owned subsidiary of NYSE
Arca Holdings.
NYSE Arca Equities, a Delaware corporation, will remain a
wholly owned subsidiary of NYSE Arca.
NYSE Amex will remain a direct wholly owned subsidiary of
NYSE Group and an indirectly wholly owned subsidiary of NYSE Euronext.
The Combination will have no effect on the ability of any
party to trade securities on the Exchange, NYSE Arca or NYSE Amex.
[[Page 65236]]
Similarly, Deutsche B[ouml]rse and its subsidiaries, and NYSE
Euronext and its subsidiaries, will continue to conduct their regulated
activities in the same manner as they are currently conducted, with any
changes subject to the relevant approvals of their respective European
regulators and, in the case of the U.S. Regulated Subsidiaries, with
any changes subject to the approval of the Commission.
Holdco acknowledges that to the extent it becomes aware of possible
violations of the rules of the Exchange, NYSE Arca or NYSE Amex, it
will be responsible for referring such possible violations to each such
exchange, respectively. In addition, Holdco will become a party to the
agreement among NYSE Euronext, NYSE Group, the Exchange, NYSE Market
and NYSE Regulation to provide for adequate funding for NYSE
Regulation.
3. Proposed Approval of Waiver of Voting and Ownership Restrictions of
NYSE Euronext
Article V of the current NYSE Euronext Certificate provides that
(1) No person, either alone or together with its ``related persons''
(as defined in the NYSE Euronext Certificate), may be entitled to vote
or cause the voting of shares of NYSE Euronext beneficially owned by
such person or its related persons, in person or by proxy or through
any voting agreement or other arrangement, to the extent that such
shares represent in the aggregate more than 10% of the then outstanding
votes entitled to be cast on such matter; and (2) no person, either
alone or together with its related persons, may acquire the ability to
vote more than 10% of the then outstanding votes entitled to be cast on
any such matter by virtue of agreements or arrangements entered into
with other persons to refrain from voting shares of stock of NYSE
Euronext (the ``NYSE Euronext Voting Restriction'').\20\ NYSE Euronext
must disregard any votes purposed to be cast in excess of the NYSE
Euronext Voting Restriction.\21\
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\20\ See Amended and Restated Certificate of Incorporation of
NYSE Euronext, Article V Section 1.
\21\ See Amended and Restated Certificate of Incorporation of
NYSE Euronext, Article V Section 1(A).
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In addition, the NYSE Euronext Certificate provides that no person,
either alone or together with its related persons, may at any time
beneficially own shares of NYSE Euronext representing in the aggregate
more than 20% of the then outstanding votes entitled to be cast on any
matter (the ``NYSE Euronext Ownership Restriction'').\22\ If any
person, either alone or together with its related persons, owns shares
of NYSE Euronext in excess of the NYSE Euronext Ownership Restriction,
then such person and its related persons are obligated to sell
promptly, and NYSE Euronext is obligated to purchase promptly, at a
price equal to the par value of such shares and to the extent funds are
legally available for such purchase, the number of shares of NYSE
Euronext necessary so that such person, together with its related
persons, will beneficially own shares of NYSE Euronext representing in
the aggregate no more than 20% of the then outstanding votes entitled
to be cast on any matter, after taking into account that such
repurchased shares will become treasury shares and will no longer be
deemed to be outstanding.\23\
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\22\ See Amended and Restated Certificate of Incorporation of
NYSE Euronext, Article V Section 2.
\23\ See Amended and Restated Certificate of Incorporation of
NYSE Euronext, Article V Section 2(D).
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The NYSE Euronext Voting Restriction and the NYSE Euronext
Ownership Restriction are applicable to each person unless and until
(1) Such person has delivered a notice in writing to the board of
directors of NYSE Euronext, not less than 45 days (or such shorter
period as the board of directors of NYSE Euronext expressly permits)
prior to any vote or, in the case of the NYSE Euronext Ownership
Restriction, prior to the acquisition of any shares of NYSE Euronext
that would cause such person, either alone or together with its related
persons, to exceed the NYSE Euronext Ownership Restriction, of such
person's intention, either alone or together with its related persons,
to vote or cause the voting of shares of NYSE Euronext stock
beneficially owned by such person or its related persons in excess of
the NYSE Euronext Voting Restriction or, in the case of the NYSE
Euronext Ownership Restriction, of such person's intention, either
alone or together with its related persons, to acquire such ownership;
(2) the board of directors of NYSE Euronext has resolved to expressly
permit such voting or ownership, as applicable; (3) such resolution has
been filed with, and approved by, the Commission under Section 19(b) of
the Exchange Act \24\ and has become effective thereunder; and (4) such
resolution has been filed with, and approved by, each European
Regulator having appropriate jurisdiction and authority. Subject to its
fiduciary duties under applicable law, the NYSE Euronext board of
directors may not adopt any resolution pursuant to the foregoing clause
(2) unless it has determined that the exercise of such voting rights
(or the entering into of a voting agreement) or ownership, as
applicable:
---------------------------------------------------------------------------
\24\ 15 U.S.C. 78s(b).
---------------------------------------------------------------------------
Will not impair the ability of any NYSE U.S. Regulated
Subsidiary, NYSE Euronext or NYSE Group (if and to the extent that NYSE
Group continues to exist as a separate entity) to discharge their
respective responsibilities under the Exchange Act and the rules and
regulations thereunder;
Will not impair the ability of any of the European Market
Subsidiaries (as defined in the NYSE Euronext Bylaws) of NYSE Euronext
or Euronext (to the extent that Euronext continues to exist as a
separate entity) to discharge their respective responsibilities under
the European Exchange Regulations (as defined in the NYSE Euronext
Bylaws);
Is otherwise in the best interest of NYSE Euronext, its
stockholders, the NYSE U.S. Regulated Subsidiaries and the European
Market Subsidiaries, and will not impair the Commission's ability to
enforce the Exchange Act or the European Regulators' ability to enforce
the European Exchange Regulations;
For so long as NYSE Euronext directly or indirectly
controls the Exchange or NYSE Market, neither such person nor any of
its related persons is a NYSE Member;
For so long as NYSE Euronext directly or indirectly
controls NYSE Amex, neither such person nor any of its related persons
is an Amex Member;
For so long as NYSE Euronext directly or indirectly
controls NYSE Arca, NYSE Arca Equities or any facility of NYSE Arca,
neither such person nor any of its related persons is an ETP Holder, an
OTP Holder or an OTP Firm; and
Neither such person nor any of its related persons is a
U.S. Disqualified Person or a European Disqualified Person (as such
terms are defined in the NYSE Euronext Certificate).\25\
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\25\ See Amended and Restated Certificate of Incorporation of
NYSE Euronext, Article V Sections 1(B), 1(C), 2(B) and 2(C), and
Amended and Restated Bylaws of NYSE Euronext, Section 10.12.
---------------------------------------------------------------------------
In order to allow Holdco to wholly own and vote all of the
outstanding common stock of NYSE Euronext upon consummation of the
Combination, Holdco has delivered written notice to the board of
directors of NYSE Euronext pursuant to the procedures set forth in the
NYSE Euronext Certificate requesting approval of its voting and
ownership of NYSE Euronext shares in excess of the NYSE Euronext Voting
Restriction and the NYSE Euronext
[[Page 65237]]
Ownership Restriction. Among other things, in this notice, Holdco
represented to the board of directors of NYSE Euronext that neither it,
nor any of its related persons, is (1) A ``member'' or ``member
organization'' of the Exchange; (2) a ``member'' of NYSE Amex; (3) an
ETP Holder; (4) an OTP Holder or an OTP Firm; or (5) a U.S.
Disqualified Person or a European Disqualified Person.
At a meeting duly convened on September 15, 2011, the board of
directors of NYSE Euronext adopted the NYSE Euronext Resolutions to
permit Holdco, either alone or with its related persons, to exceed the
NYSE Euronext Ownership Restriction and the NYSE Euronext Voting
Restriction. In adopting such resolutions, the board of directors of
NYSE Euronext made the necessary determinations set forth above and
approved the submission of this Proposed Rule Change to the Commission.
The NYSE U.S. Regulated Subsidiaries will continue to operate and
regulate their markets and members exactly as they have done prior to
the Combination. Except as set forth in this Proposed Rule Change,
Holdco is not proposing any amendments to their trading or regulatory
rules.
With respect to the ability of the Commission to enforce the
Exchange Act as it applies to the NYSE U.S. Regulated Subsidiaries
after the Combination, the NYSE U.S. Regulated Subsidiaries will
operate in the same manner following the Combination as they operate
today.\26\ Thus, the Commission will continue to have plenary
regulatory authority over the NYSE U.S. Regulated Subsidiaries, as is
the case currently with these entities. As described in the following
sections of this filing, NYSE Arca is proposing a series of amendments
to the NYSE Euronext Certificate, the NYSE Euronext Bylaws, the NYSE
Group Certificate and the NYSE Group Bylaws, as well as certain
provisions of the Holdco Articles, that will create an ownership
structure that will provide the Commission with appropriate oversight
tools to ensure that the Commission will have the ability to enforce
the Exchange Act with respect to each U.S. Regulated Subsidiary, its
direct and indirect parent entities and its directors, officers,
employees and agents to the extent they are involved in the activities
of such U.S. Regulated Subsidiary.
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\26\ NYSE Arca has been informed by Deutsche B[ouml]rse that the
DB U.S. Regulated Subsidiaries are also expected to operate in the
same manner following the Combination as they operate today. This is
addressed in the separate proposed rule change filed by each of the
DB Exchanges.
---------------------------------------------------------------------------
The NYSE Euronext board of directors also determined that ownership
of NYSE Euronext by Holdco is in the best interests of NYSE Euronext,
its shareholders and the NYSE U.S. Regulated Subsidiaries. With respect
to the interests of the NYSE U.S. Regulated Subsidiaries, the board of
directors of NYSE Euronext has noted, among other things, its
expectation that the Combination would over time create substantial
incremental efficiency and growth opportunities and that the Holdco
Group is expected to be a leader in a diverse set of large and growing
businesses, including derivatives, listings, cash equities, post-trade
settlement and asset servicing, market data and technology servicing.
In addition, neither Holdco, nor any of its related persons, is (1)
A NYSE Member; (2) an Amex Member; (3) an ETP Holder, an OTP Holder or
an OTP Firm; or (4) a U.S. Disqualified Person or a European
Disqualified Person.
An extract with the relevant provisions of the NYSE Euronext
Resolutions is attached as Exhibit 5A to the Proposed Rule Change and
can be found on NYSE Euronext's Web site and the Commission's Web site.
NYSE Arca hereby requests that the Commission approve the NYSE
Euronext Resolutions and allow Holdco, either alone or with its related
persons, to own and vote all of the outstanding common stock of NYSE
Euronext upon and following the consummation of the Combination.
4. Proposed Amendments to Ownership and Voting Restrictions After the
Combination
Overview
NYSE Arca is proposing that, effective as of the completion of the
Combination, the Holdco Articles would contain voting and ownership
restrictions that restrict any person, either alone or together with
its related persons, from having voting control over Holdco shares
entitling the holder thereof to cast more than 20% of the votes
entitled to be cast on any matter or beneficially owning Holdco shares
representing more than 40% of the outstanding votes that may be cast on
any matter (except that a 20% ownership restriction would apply to any
person who is a NYSE Member, an Amex Member, an ETP Holder, an OTP
Holder, an OTP Firm, an ISE Member, an EDGA Member or an EDGX Member).
In addition, NYSE Arca is proposing that, effective as of the
Combination, the voting and ownership restrictions currently in the
NYSE Euronext Certificate and NYSE Euronext Bylaws, as well as the
related waiver provisions set forth therein, would remain in effect,
except that they would be modified in certain respects as described
herein.\27\
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\27\ As described in the proposed rule change filed by each of
the DB Exchanges, the current voting and ownership restrictions
contained in the certificate of incorporation of ISE Holdings, as
well as the related provisions contained in the amended and restated
bylaws of U.S. Exchange Holdings and the board resolutions of
Deutsche B[ouml]rse, Eurex Frankfurt AG and other indirect parent
entities of ISE, would remain in effect. The DB Trust would also
remain unaltered and would continue to have rights to enforce these
restrictions.
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Voting and Ownership Restrictions in Holdco Articles
Under the Proposed Rule Change, the Holdco Articles would provide
that no person, either alone or together with its related persons, will
be entitled to vote or cause the voting of a number of shares of
Holdco, in person or by proxy or through any voting agreement or other
arrangement, which represent in the aggregate (1) More than 20% of the
then outstanding votes entitled to be cast on such matter; or (2) more
than 20% of the then outstanding votes entitled to be cast on any such
matter by virtue of agreements or arrangements entered into with other
persons to refrain from voting shares of Holdco (the ``Holdco Voting
Restriction'').\28\ The Holdco Articles would provide that Holdco will
be required to disregard any votes purported to be cast in excess of
the Holdco Voting Restriction.
---------------------------------------------------------------------------
\28\ See Form of Deed of Amendment to Holdco Articles of
Association, Article 34.1.
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In addition, the Holdco Articles would provide that any person who,
either alone or together with its related persons, beneficially owns
Holdco shares which represent in the aggregate more than 40% of the
outstanding votes entitled to be cast on any matter (except that a 20%
restriction would apply to any person who is a NYSE Member, an Amex
Member, an ETP Holder, an OTP Holder, an OTP Firm, an ISE Member, an
EDGA Member or an EDGX Member) (the ``Holdco Ownership Restriction''),
will be obligated to offer for sale and to transfer a number of Holdco
shares necessary so that such person, together with its related
persons, beneficially owns a number of Holdco shares that complies with
the Holdco Ownership Restriction (the ``Holdco Transfer
Obligation'').\29\ If such person(s) fails to comply with the Holdco
Transfer Obligation within two weeks, Holdco will be irrevocably
authorized to act on behalf of such person(s) in order to
[[Page 65238]]
ensure compliance with the Holdco Transfer Obligation.\30\
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\29\ See Form of Deed of Amendment to Holdco Articles of
Association, Articles 35.1 and 35.4.
\30\ See Form of Deed of Amendment to Holdco Articles of
Association, Article 35.7.
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Furthermore, the Holdco Articles would provide that in the event
any person, either alone or together with its related persons, exceeds
the Holdco Ownership Restriction (any such person(s), a ``Non-Compliant
Owner''), the Non-Compliant Owner would cease to have certain rights to
the extent that its shareholding exceeds the Holdco Ownership
Restriction. Specifically, the Non-Compliant Owner's rights to vote, to
attend general meetings of Holdco shareholders and to receive dividends
or other distributions attached to such shares in excess of the Holdco
Ownership Restriction would be suspended for so long as the Holdco
Ownership Restriction is exceeded.\31\
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\31\ See Form of Deed of Amendment to Holdco Articles of
Association, Article 35.6.
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Pursuant to Section 2:87a of the Dutch Civil Code, the Non-
Compliant Owner may request that an independent expert be appointed to
determine the value of the Holdco shares, but such expert will have
discretion to determine that the value of the shares is equal to the
price received for the shares by the Non-Compliant Owner on any stock
exchange where the Holdco shares are listed.\32\
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\32\ See Form of Deed of Amendment to Holdco Articles of
Association, Article 35.5.
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The voting and ownership restrictions will apply to each person
unless it (1) Delivers to the Holdco board of directors a written
notice of its intention to acquire voting power or ownership in excess
of the relevant limitation, and such notice is delivered at least 45
days (or such shorter period as the Holdco board of directors expressly
consents to) prior to acquiring Holdco shares in excess of the Holdco
Voting Restriction or Holdco Ownership Restriction; (2) obtains a
written confirmation from the Holdco board of directors that the board
has expressly resolved to permit such voting or ownership; and (3) such
resolution has been filed with, and approved by, the Commission under
Section 19(b) of the Exchange Act and filed with, and approved by, the
relevant European regulators having appropriate jurisdiction and
authority.\33\ The Holdco board of directors may waive the Holdco
Voting Restriction and Holdco Ownership Restriction if it makes certain
determinations, which will be consistent with the determinations
currently required to be made by the board of directors of NYSE
Euronext and ISE Holdings in order to waive the voting and ownership
restrictions in the NYSE Euronext Certificate and the ISE Holdings
Certificate, respectively.\34\
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\33\ See Form of Deed of Amendment to Holdco Articles of
Association, Articles 34.2 and 35.2.
\34\ See Form of Deed of Amendment to Holdco Articles of
Association, Articles 34.3 and 35.3.
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Amendments to NYSE Group Voting and Ownership Restrictions
The voting restrictions contained in the current NYSE Group
Certificate provide that, if such restrictions apply, (1) No person,
either alone or together with its related persons (as defined in the
NYSE Group Certificate), may be entitled to vote or cause the voting of
shares of stock of NYSE Group beneficially owned by such person or its
related persons, in person or by proxy or through any voting agreement
or other arrangement, to the extent that such shares represent in the
aggregate more than 10% of the then outstanding votes entitled to be
cast on such matter; and (2) no person, either alone or together with
its related persons, may acquire the ability to vote more than 10% of
the then outstanding votes entitled to be cast on any such matter by
virtue of agreements or arrangements entered into with other persons to
refrain from voting shares of stock of NYSE Group (the ``NYSE Group
Voting Restriction'').\35\ NYSE Group must disregard any votes
purported to be cast in excess of the NYSE Group Voting Restriction.
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\35\ See Second Amended and Restated Certificate of
Incorporation of NYSE Group, Inc., Article IV Section 4(b).
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In addition, the ownership restrictions contained in the current
NYSE Group Certificate provide that, if such restrictions apply, no
person, either alone or together with its related persons, may at any
time own beneficially shares of NYSE Group representing in the
aggregate more than 20% of the then outstanding votes entitled to be
cast on any matter (the ``NYSE Group Ownership Restriction''). If any
person, either alone or together with its related persons, owns shares
of NYSE Group in excess of the NYSE Group Ownership Restriction, then
such person and its related persons are obligated to sell promptly, and
NYSE Group is obligated to purchase promptly, at a price equal to the
par value of such shares and to the extent funds are legally available
for such purchase, the number of shares of NYSE Group necessary so that
such person, together with its related persons, will beneficially own
shares of NYSE Group representing in the aggregate no more than 20% of
the then outstanding votes entitled to be cast on any matter, after
taking into account that such repurchased shares will become treasury
shares and will no longer be deemed to be outstanding.
The NYSE Group Voting Restriction and the NYSE Group Ownership
Restriction apply to each person unless and until (1) Such person has
delivered a notice in writing to the board of directors of NYSE Group,
not less than 45 days (or such shorter period as the board of directors
of NYSE Group expressly permits) prior to any vote or, in the case of
the NYSE Group Ownership Restriction, prior to the acquisition of any
shares of NYSE Group that would cause such person, either alone or
together with its related persons, to exceed the NYSE Group Ownership
Restriction, of such person's intention, either alone or together with
its related persons, to vote or cause the voting of shares of NYSE
Group stock beneficially owned by such person or its related persons in
excess of the NYSE Group Voting Restriction or, in the case of the NYSE
Group Ownership Restriction, of such person's intention, either alone
or together with its related persons, to acquire such ownership; (2)
the board of directors of NYSE Group has resolved to expressly permit
such voting or ownership, as applicable; and (3) such resolution has
been filed with, and approved by, the Commission under Section 19(b) of
the Exchange Act \36\ and has become effective thereunder. Subject to
its fiduciary duties under applicable law, the NYSE Group board of
directors may not adopt any resolution pursuant to the foregoing clause
(2) unless the board has made certain determinations which are
substantially similar to the determinations required to be made by the
NYSE Euronext board of directors in connection with a waiver of the
NYSE Euronext Voting Limitation and/or the NYSE Euronext Ownership
Limitation (as described above).
---------------------------------------------------------------------------
\36\ 15 U.S.C. 78s(b).
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Under the Proposed Rule Change, the NYSE Group Certificate would be
amended, effective as of the Combination, to (1) Change the 10%
threshold for the NYSE Group Voting Restriction to a 20% threshold; and
(2) change the 20% threshold for the NYSE Group Ownership Restriction
to a 40% restriction (except that a 20% restriction would continue to
apply to any person who is a NYSE Member, an Amex Member, an ETP
Holder, an OTP Holder or an OTP Firm). These percentage thresholds are
consistent with those applicable to ISE Holdings and other regulated
exchanges and have been approved on several occasions by the
[[Page 65239]]
Commission.\37\ The NYSE Group Certificate would also be updated to
provide that the NYSE Group Voting Restriction and the NYSE Group
Ownership Restriction would apply only for so long as NYSE Group
directly or indirectly controls any Regulated Subsidiary (as defined in
the NYSE Group Certificate).
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\37\ See, e.g., SEC Release No. 34-49718 (May 17, 2004) (File
No. SR-PCX-2004-08), 69 FR 29611 (approval of rule change proposed
by the Pacific Exchange, Inc.); SEC Release No. 34-49098 (January
16, 2004) (File No. SR-PHLX-2003-73), 69 FR 3974 (approval of rule
change proposed by the Philadelphia Stock Exchange, Inc.); and SEC
Release No. 34-50170 (August 9, 2004) (File No. SR-PCX-2004-56), 69
FR 50419 (approval of rule change proposed by the Pacific Exchange,
Inc. relating to initial public offering of parent of Archipelago
Exchange, L.L.C.).
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Under the Proposed Rule Change, the definition of ``Related
Persons'' would be expanded to provide that (1) In the case of a person
that is a ``member'' (as defined in Section 3(a)(3)(A)(i) of the
Exchange Act) of NYSE Amex, such person's ``Related Persons'' would
include the ``member'' (as defined in Section 3(a)(3)(A)(iv) of the
Exchange Act, in addition to Sections 3(a)(3)(A)(ii) and
3(a)(3)(A)(iii) of the Exchange Act which are currently referenced in
this provision of the NYSE Group Certificate) with which such person is
associated; and (2) in the case of any person that is a ``member'' (as
defined in Section 3(a)(3)(A)(iv) of the Exchange Act, in addition to
Sections 3(a)(3)(A)(ii) and 3(a)(3)(A)(iii) of the Exchange Act which
are currently referenced in this provision of the NYSE Group
Certificate) of NYSE Amex, such person's ``Related Persons'' would
include any ``member'' (as defined in Section 3(a)(3)(A)(i) of the
Exchange Act) that is associated with such person. These provisions are
substantively consistent with language in the NYSE Rules, which
language would be deleted under the Proposed Rule Change.
Amendments to NYSE Euronext Voting and Ownership Restrictions
Under the Proposed Rule Change, the NYSE Euronext Certificate would
be amended, effective as of the Combination, to be consistent with the
NYSE Group Certificate in the following respects: (1) First, the NYSE
Euronext Certificate would be amended to provide that all of the issued
and outstanding shares of NYSE Euronext will be held by Holdco, and
that Holdco may not transfer or assign any shares without approval by
the Commission under the Exchange Act and the relevant European
Regulators (as defined in the NYSE Euronext Certificate) under the
applicable European Exchange Regulations (as defined in the NYSE
Euronext Certificate); \38\ and (2) the NYSE Euronext Certificate would
be amended to provide that the NYSE Euronext Voting Restriction and
NYSE Euronext Ownership Restriction contained therein would only apply
in the event that Holdco does not own all of the issued and outstanding
shares of NYSE Euronext.\39\ In addition, the NYSE Euronext Certificate
would be amended to (a) change the 10% threshold for the NYSE Euronext
Voting Restriction to a 20% threshold; (b) change the 20% threshold for
the NYSE Euronext Ownership Restriction to a 40% restriction (except
that a 20% ownership restriction would continue to apply to any person
who is a NYSE Member, an Amex Member, an ETP Holder, an OTP Holder or
an OTP Firm); (c) provide that the NYSE Euronext Voting Restriction and
NYSE Euronext Ownership Restriction contained therein would only apply
only for so long as NYSE Euronext directly or indirectly controls any
U.S. Regulated Subsidiary or any European Market Subsidiary (as such
terms are defined in the NYSE Euronext Certificate); (d) add the
provision, which is currently in the NYSE Euronext Bylaws, that
requires the board of directors of NYSE Euronext to make certain
determinations relating to NYSE Amex in order to waive the voting and
ownership restrictions in the NYSE Euronext Certificate, and delete
this provision from the NYSE Euronext Bylaws; (e) update the names of
certain European regulatory entities in the definition of ``European
Regulator''; and (f) expand the definition of ``Related Persons'' to
address Amex Members in a manner that is substantively consistent with
language currently located in the NYSE Rules, as described above.
---------------------------------------------------------------------------
\38\ The analogous provision in the NYSE Group Certificate is
Section 4(a) of Article IV.
\39\ The analogous provision in the NYSE Group Certificate is
Section 4(b) of Article IV.
---------------------------------------------------------------------------
5. Additional Matters To Be Addressed in the Holdco Articles \40\
---------------------------------------------------------------------------
\40\ The Holdco Articles will also set forth certain
restrictions and requirements relating to Holdco's European
subsidiaries and applicable European regulatory matters, which will
be substantially consistent with the analogous restrictions and
requirements applicable with respect to Holdco's U.S. Regulated
Subsidiaries and U.S. regulatory matters.
---------------------------------------------------------------------------
Jurisdiction Over Individuals
Under the Proposed Rule Change, the Holdco Articles would provide
that Holdco and its directors, and to the extent that they are involved
in the activities of the U.S. Regulated Subsidiaries, (x) Holdco's
officers, and (y) those of its employees whose principal place of
business and residence is outside the United States, would be deemed to
irrevocably submit to the jurisdiction of the U.S. federal courts and
the Commission for the purposes of any suit, action or proceeding
pursuant to the U.S. federal securities laws, and the rules and
regulations thereunder, commenced or initiated by the Commission
arising out of, or relating to, the activities of the U.S. Regulated
Subsidiaries.\41\ The Holdco Articles would also provide that, with
respect to any such suit, action, or proceeding brought by the
Commission, Holdco and its directors, officers and employees would (1)
Be deemed to agree that NYSE Group may serve as U.S. agent for purposes
of service of process in such suit, action, or proceeding relating to
NYSE Group or any of its subsidiaries, and ISE Holdings may serve as
the U.S. agent for proceedings relating to ISE Holdings or any of its
subsidiaries; and (2) be deemed to waive, and agree not to assert by
way of motion, as a defense or otherwise, in any such suit, action, or
proceeding, any claims that it or they are not personally subject to
the jurisdiction of the Commission, that the suit, action, or
proceeding is an inconvenient forum or that the venue of the suit,
action, or proceeding is improper, or that the subject matter thereof
may not be enforced in or by the U.S. federal courts or the
Commission.\42\
---------------------------------------------------------------------------
\41\ See Form of Deed of Amendment to Holdco Articles of
Association, Article 3.2(c).
\42\ See id.
---------------------------------------------------------------------------
In addition, the Holdco Articles would provide that, so long as
Holdco directly or indirectly controls any U.S. Regulated Subsidiary,
the directors, officers and employees of Holdco will be deemed to be
directors, officers and employees of such U.S. Regulated Subsidiaries
for purposes of, and subject to oversight pursuant to, the Exchange
Act.\43\
---------------------------------------------------------------------------
\43\ See Form of Deed of Amendment to Holdco Articles of
Association, Article 3.2(f).
---------------------------------------------------------------------------
The Holdco Articles would provide that Holdco will take reasonable
steps necessary to cause its directors, officers and employees, prior
to accepting a position as an officer, director or employee, as
applicable, of Holdco to agree and consent in writing to the
applicability to them of these jurisdictional and oversight provisions
with respect to their activities related to any U.S. Regulated
Subsidiary.\44\ The Holdco Articles would also provide that no person
may be a director of Holdco
[[Page 65240]]
unless he or she has agreed and consented in writing to the
applicability to him or her of these jurisdictional and oversight
provisions with respect to his or her activities related to any U.S.
Regulated Subsidiary.\45\ Furthermore, Holdco would sign an irrevocable
agreement and consent for the benefit of each U.S. Regulated Subsidiary
\46\ that it will comply with these provisions in the Holdco Articles.
---------------------------------------------------------------------------
\44\ See Form of Deed of Amendment to Holdco Articles of
Association, Article 3.2(m).
\45\ See Form of Deed of Amendment to Holdco Articles of
Association, Article 14.11.
\46\ The form of Holdco's agreement and consent is attached as
Exhibit 5M to this Proposed Rule Change.
---------------------------------------------------------------------------
NYSE Arca anticipates that the functions and activities of each
U.S. Regulated Subsidiary generally will be carried out by the officers
and directors of such U.S. Regulated Subsidiary, each of whom the
Commission has direct authority over pursuant to Section 19(h)(4) of
the Exchange Act.\47\
---------------------------------------------------------------------------
\47\ 15 U.S.C. 78s(h)(4).
---------------------------------------------------------------------------
Access to Books and Records
Under the Proposed Rule Change, the Holdco Articles would provide
that for so long as Holdco directly or indirectly controls any U.S.
Regulated Subsidiary, the books, records and premises of Holdco will be
deemed to be the books, records and premises of such U.S. Regulated
Subsidiaries for purposes of, and subject to oversight pursuant to, the
Exchange Act.\48\ In addition, the Holdco Articles would provide that
Holdco's books and records will at all times be made available for
inspection and copying by the Commission, and any U.S. Regulated
Subsidiary to the extent they are related to the activities of such
U.S. Regulated Subsidiary or any other U.S. Regulated Subsidiary over
which such U.S. Regulated Subsidiary has regulatory authority or
oversight.\49\ In addition, Holdco's books and records related to the
U.S. Regulated Subsidiaries will be maintained within the United
States, except that to the extent that books and records may relate to
both European subsidiaries and U.S. Regulated Subsidiaries, Holdco may
maintain such books and records either in the home jurisdiction of one
or more European subsidiaries or in the United States.\50\
---------------------------------------------------------------------------
\48\ See Form of Deed of Amendment to Holdco Articles of
Association, Article 3.2(f).
\49\ See Form of Deed of Amendment to Holdco Articles of
Association, Article 3.2(e).
\50\ See Form of Deed of Amendment to Holdco Articles of
Association, Article 3.2(g).
---------------------------------------------------------------------------
Additional Matters
Under the Proposed Rule Change, the Holdco Articles would provide
that Holdco will comply with the U.S. federal securities laws and the
rules and regulations thereunder, and will cooperate with the
Commission and with the U.S. Regulated Subsidiaries pursuant to and to
the extent of their respective regulatory authority.\51\ In addition,
Holdco would be required to take reasonable steps necessary to cause
its agents to cooperate with the Commission and, where applicable, the
U.S. Regulated Subsidiaries pursuant to their regulatory authority.\52\
The Holdco Articles would also provide that, in discharging his or her
responsibilities as a member of the Holdco board of directors or as an
officer or employee of Holdco, each such director, officer or employee
will (a) Comply with the U.S. federal securities laws and the rules and
regulations thereunder; (b) cooperate with the Commission; and (c)
cooperate with the U.S. Regulated Subsidiaries pursuant to and to the
extent of their regulatory authority (but this provision will not
create any duty owed by any director, officer or employee of Holdco to
any person to consider, or afford any particular weight to, any such
matters or to limit his or her consideration to such matters).\53\
---------------------------------------------------------------------------
\51\ See Form of Deed of Amendment to Holdco Articles of
Association, Article 3.2(a).
\52\ See id.
\53\ See Form of Deed of Amendment to Holdco Articles of
Association, Article 3.2(l).
---------------------------------------------------------------------------
The Holdco Articles would also provide that all confidential
information that comes into the possession of Holdco pertaining to the
self-regulatory function of any U.S. Regulated Subsidiary will (a) not
be made available to any persons other than to those officers,
directors, employees and agents of Holdco that have a reasonable need
to know the contents thereof; (b) be retained in confidence by Holdco
and the officers, directors, employees and agents of Holdco; and (c)
not be used for any commercial purposes.\54\ In addition, the Holdco
Articles would provide that these obligations regarding such
confidential information will not be interpreted so as to limit or
impede (i) The rights of the Commission or the relevant U.S. Regulated
Subsidiary to have access to and examine such confidential information
pursuant to the U.S. federal securities laws and the rules and
regulations thereunder; or (ii) the ability of any officers, directors,
employees or agents of Holdco to disclose such confidential information
to the Commission or any U.S. Regulated Subsidiary.\55\
---------------------------------------------------------------------------
\54\ See Form of Deed of Amendment to Holdco Articles of
Association, Article 3.2(h).
\55\ See id.
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Additionally, the Holdco Articles would provide that, for so long
as Holdco directly or indirectly controls any U.S. Regulated
Subsidiary, Holdco and its directors, officers and employees will give
due regard to the preservation of the independence of the self-
regulatory function of such U.S. Regulated Subsidiary and to its
obligations to investors and the general public, and will not take any
actions that would interfere with the effectuation of any decisions by
the board of directors or managers of such U.S. Regulated Subsidiary
relating to its regulatory responsibilities (including enforcement and
disciplinary matters) or that would interfere with the ability of such
U.S. Regulated Subsidiary to carry out its responsibilities under the
Exchange Act.\56\
---------------------------------------------------------------------------
\56\ See Form of Deed of Amendment to Holdco Articles of
Association, Article 3.2(i).
---------------------------------------------------------------------------
Finally, the Holdco Articles would provide that each director of
Holdco would, in discharging his or her responsibilities, to the
fullest extent permitted by applicable law, take into consideration the
effect that Holdco's actions would have on the ability of (a) the U.S.
Regulated Subsidiaries to carry out their responsibilities under the
Exchange Act; and (b) the U.S. Regulated Subsidiaries, NYSE Group, ISE
Holdings and Holdco to (1) Engage in conduct that fosters and does not
interfere with the ability of the U.S. Regulated Subsidiaries, NYSE
Group, ISE Holdings and Holdco to prevent fraudulent and manipulative
acts and practices in the securities markets; (2) promote just and
equitable principles of trade in the securities markets; (3) foster
cooperation and coordination with persons engaged in regulating,
clearing, settling, processing information with respect to, and
facilitating transactions in securities; (4) remove impediments to and
perfect the mechanisms of a free and open market in securities and a
U.S. national securities market system; and (5) in general, protect
investors and the public interest.\57\ This requirement would not,
however, create any duty owed by any director, officer or employee of
Holdco to any person to consider, or afford any particular weight to,
any of the foregoing matters or to limit his or her consideration to
such matters.\58\
---------------------------------------------------------------------------
\57\ See Form of Deed of Amendment to Holdco Articles of
Association, Article 3.2(k).
\58\ See Form of Deed of Amendment to Holdco Articles of
Association, Article 3.2(k).
---------------------------------------------------------------------------
In addition, the Holdco Articles would provide that Holdco will
take reasonable steps necessary to cause its officers, directors and
employees, prior to accepting a position as an officer, director or
employee, as applicable, of Holdco to agree and consent in writing to
the applicability to them of these
[[Page 65241]]
provisions of the Holdco Articles with respect to their activities
related to any U.S. Regulated Subsidiary.\59\ The Holdco Articles would
also provide that no person may be a director of Holdco unless he or
she has agreed and consented in writing to the applicability to him or
her of these provisions with respect to his or her activities related
to any U.S. Regulated Subsidiary.\60\
---------------------------------------------------------------------------
\59\ See Form of Deed of Amendment to Holdco Articles of
Association, Article 3.2(m).
\60\ See Form of Deed of Amendment to Holdco Articles of
Association, Article 14.11.
---------------------------------------------------------------------------
Holdco would also sign an irrevocable agreement and consent for the
benefit of each U.S. Regulated Subsidiary that it will comply with
provisions in the Holdco Articles regarding (1) Cooperation with the
Commission and such U.S. Regulated Subsidiaries; (2) compliance with
U.S. federal securities laws; (3) inspection and copying of Holdco's
books, records and premises; (4) Holdco's books, records, premises,
officers, directors and employees being deemed to be those of U.S.
Regulated Subsidiaries; (5) maintenance of books and records in the
United States; (6) confidentiality of information regarding the U.S.
Regulated Subsidiaries' self-regulatory function; (7) preservation of
the independence of the self-regulatory function of the U.S. Regulated
Subsidiaries; and (8) taking reasonable steps to cause Holdco's
officers, directors and employees to consent to the applicability to
them of the Holdco Articles. The form of Holdco's agreement and consent
is attached as Exhibit 5M to this Proposed Rule Change.
Amendments to the Holdco Articles
Under the Proposed Rule Change, the Holdco Articles would provide
that, before any amendment to or repeal of any provision of the Holdco
Articles may become effectuated by means of a notarial deed of
amendment, the same will be submitted to the board of directors of each
U.S. Regulated Subsidiary (or the boards of directors of their
successors) and if any or all of such boards of directors determine
that the same must be filed with, or filed with and approved by, the
Commission before the same may be effective under Section 19 of the
Exchange Act and the rules promulgated thereunder, then the same will
not be effective until filed with, or filed with and approved by, the
Commission, as the case may be. These requirements would also apply to
any action by Holdco that would have the effect of amending or
repealing any provision of the Holdco Articles.
Holdco Director Independence Policy
Under the Proposed Rule Change, Holdco would adopt the Holdco
Independence Policy in the form attached hereto as Exhibit 5N, which
would be substantially similar to the current Independence Policy of
the NYSE Euronext board of directors, except that (1) A majority (as
opposed to 75%) of the board of Holdco would be required to be
independent; (2) executive officers of listed companies would no longer
be prohibited from being considered independent for purposes of the
Holdco board; (3) the ``additional independence requirements'' at the
end of the current Independence Policy of NYSE Euronext, which provide
that executive officers of foreign private issuers, executive officers
of NYSE Euronext and directors of affiliates of member organizations
must together comprise no more than a minority of the total board,
would be eliminated; (4) references to certain European regulatory
authorities would be updated, because their names have changed; (5)
references to NYSE Alternext, Inc. would refer instead to NYSE Amex,
because of this entity's name change; (6) footnote 2 of the current
Independence Policy of NYSE Euronext would be deleted because the
Holdco Independence Policy would not be applicable to NYSE Regulation,
Inc., the Exchange, NYSE Amex or NYSE Market, which would have their
own director independence policy in the form attached to this Proposed
Rule Change as Exhibit 5K; and (7) references to the independence
standards and criteria in the Dutch Corporate Governance Code would be
added, because such standards and criteria will apply to Holdco, a
Dutch company, and will supplement (rather than supersede or limit) the
other independence standards and criteria set forth in the Holdco
Independence Policy.
NYSE Arca believes that a majority independence standard is
appropriate to ensure that Holdco's board as a whole consists of
individuals with independent, objective perspectives, while at the same
time affording Holdco sufficient flexibility to include persons with
expertise and qualifications that will contribute meaningfully to the
board's performance of its oversight function. The importance of
allowing highly qualified individuals to serve on the board is
underscored by the fact that Holdco will serve as the holding company
for a complex, global business with highly specialized operations and
regulatory functions. Although Holdco has unique responsibilities and
functions as the holding company for the NYSE U.S. Regulated
Subsidiaries, it will be subject to various corporate governance and
regulatory obligations that will be addressed by means of ownership and
voting limitations on its shareholders, commitments to provide access
to its books and records and to submit to the jurisdiction of the
Commission, director qualification requirements and other undertakings
that are addressed in the Proposed Rule Change and will be formalized
in the Holdco Articles and undertakings of Holdco to its U.S. Regulated
Subsidiaries. NYSE Arca submits that some of these undertakings call
for in-depth industry knowledge and expertise on the Holdco board, such
as the requirement that Holdco's directors take into consideration the
effect that Holdco's actions would have on the ability of its U.S.
Regulated Subsidiaries to (i) Foster cooperation and coordination with
persons engaging in regulating, clearing, settling and processing
information with respect to, and facilitating transactions in
securities, and (ii) remove impediments to and perfect the mechanisms
of a free and open market in securities and a U.S. national securities
market system.
In addition, NYSE Arca believes that the per se disqualification of
listed company executives from being deemed independent should not be
applicable to Holdco. The per se disqualification was initially adopted
by the New York Stock Exchange, Inc. in early 2005 in the context of
its unique circumstances and history and its management structure and
board composition at that time.\61\ NYSE Arca submits that those
circumstances are no longer applicable and, following the proposed
combination of NYSE Euronext and Deutsche B[ouml]rse, the
disqualification of listed company executives would impede rather than
facilitate Holdco's efforts to ensure a qualified and balanced board
composition and promote various other important corporate governance
objectives, such as ensuring appropriate expertise and experience on
its board, as well as representation of the interests of a diverse
range of market constituencies and local European and U.S. interests. A
per se disqualification would narrow the pool of potential Holdco
director candidates and arbitrarily eliminate from consideration a
large number of highly qualified, experienced individuals who have
proven track records as business leaders. In addition, because the
listed companies of the U.S.
[[Page 65242]]
Regulated Subsidiaries tend to be U.S. domestic companies, this
requirement could disproportionately restrict the eligibility of
persons affiliated with U.S. companies as compared to non-U.S.
companies to serve on the board of Holdco. Under the Holdco
Independence Policy, the Holdco board would still need to assess
whether a listed company executive meets the various independence
criteria, including whether he or she has any ``material relationship''
with Holdco and its subsidiaries.
---------------------------------------------------------------------------
\61\ See Securities Exchange Act Release No. 34-51217 (February
16, 2005) (File No. SR-NYSE-2004-54), 70 FR 9688.
---------------------------------------------------------------------------
Furthermore, NYSE Euronext believes that the objectivity of board
members is adequately protected by the various other independence
criteria in the proposed Holdco Independence Policy, such as the
requirement that independent directors may not be or have been within
the last year, and may not have an immediate family member who is or
within the last year was, a member of the Exchange, NYSE Arca or NYSE
Amex. In addition, if and to the extent that a matter concerning a
listed company whose executive is a Holdco director were ever to come
before the Holdco board for consideration, such director would be
required to be recused from acting on such matter pursuant to the
Holdco board's conflicts of interest policy.
Finally, the current Independence Policy of NYSE Euronext provides
that the sum of (a) executive officers of foreign private issuers, (b)
executive officers of NYSE Euronext and (c) directors of affiliates of
``members'' (as defined in Sections 3(a)(A)(3)(ii), 3(a)(A)(3)(iii) and
3(a)(A)(3)(iv) of the Exchange Act) of NYSE, NYSE Arca or NYSE Amex,
may not constitute more than a minority of the total number of
directors of NYSE Euronext. The purpose of this requirement is to
ensure that, although executives of listed companies who are foreign
private issuers are not disqualified from serving on the board, such
executives may not, together with NYSE Euronext executives and
directors of affiliates of members, constitute more than a minority of
the board. In light of NYSE Arca's proposal to eliminate the
disqualification of listed company executives from the Holdco
Independence Policy, this requirement would serve no purpose because
the exception to such disqualification for foreign private issuer
executives would also be eliminated. NYSE Arca further notes that under
the proposed Holdco Independence Policy, executives of Holdco and
directors of affiliates of exchange members would not be deemed
independent and, accordingly, could not in any event constitute more
than a minority of the Holdco board.
6. Proposed Amendments to Certain Public-Company-Related and Other
Provisions of NYSE Euronext Organizational and Corporate Governance
Documents
Pursuant to the Combination, NYSE Euronext will merge with Merger
Sub, a wholly owned subsidiary of Holdco. NYSE Euronext, as the
surviving corporation in the Merger, will become a wholly owned
subsidiary of Holdco. Following the Merger, the current organizational
documents of NYSE Euronext will remain in effect, except that NYSE Arca
is proposing that, in addition to the aforementioned revisions relating
to voting and ownership limitations, certain provisions will be amended
to reflect the fact that, after the Combination, NYSE Euronext will be
an intermediate holding company and will no longer be a public company
traded on the Exchange, and the registration of its capital stock under
Section 12 of the Exchange Act will be terminated upon application to
the Commission. As a result, NYSE Euronext will no longer be subject to
the Exchange's listing standards or to the corporate governance
requirements applicable to publicly traded companies. As summarized
below, the following revisions to the NYSE Euronext Certificate and
NYSE Euronext Bylaws are proposed in order to (1) Simplify and provide
for a more efficient governance and capital structure that is
appropriate for a wholly owned subsidiary; (2) conform certain
provisions to analogous provisions of the organizational documents of
NYSE Group, which will likewise be an indirect wholly owned subsidiary
of Holdco following completion of the Combination; and (3) make certain
clarification and technical edits (for example, to conform the use of
defined terms and other provisions, and to update cross-references to
sections, to reflect the other amendments to the NYSE Euronext
Certificate and the NYSE Euronext Bylaws set forth in this Proposed
Rule Change):
The NYSE Euronext Certificate would be revised to provide
that the registered office and agent of NYSE Euronext in Delaware will
be the Corporation Trust Company, which is the registered agent of
other subsidiaries of NYSE Euronext;
The number of authorized shares of NYSE Euronext common
stock and preferred stock will be reduced to 1,000 and 100,
respectively, because it would no longer be necessary for NYSE Euronext
to have a large number of widely held and actively traded shares; \62\
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\62\ Effective as of the time that NYSE Euronext merges with
Pomme Merger Corporation, the Second Amended and Restated
Certificate of Incorporation of NYSE Euronext (as the surviving
corporation in the merger) will provide that 800,000,000 shares of
common stock will be authorized and 100 shares of preferred stock
will be authorized. All of the outstanding shares of NYSE Euronext
will be held by Alpha Beta Netherlands Holding N.V. Promptly
thereafter, (1) NYSE Euronext will conduct a reverse stock split so
that Alpha Beta Netherlands Holding N.V. will hold a substantially
reduced number of NYSE Euronext shares (e.g., 1,000 common shares),
and (2) the Second Amended and Restated Certificate of Incorporation
of NYSE Euronext will accordingly be amended to reduce the total
number of authorized shares of common stock to 1,000.
---------------------------------------------------------------------------
The restrictions on transfers of NYSE Euronext shares
contained in Section 4 of Article IV of the NYSE Euronext Certificate
have now expired in accordance with their terms and would accordingly
be deleted;
Sections 2(A) and 2(B) of Article VI of the NYSE Euronext
Certificate, and Section 2.2 of the NYSE Euronext Bylaws, would be
amended to allow shareholders to call special meetings of shareholders
and to postpone such meetings, in order to give Holdco additional
flexibility to take actions in its capacity as the sole shareholder of
NYSE Euronext following completion of the Combination;
Section 6 of Article VI of the NYSE Euronext Certificate,
and Section 3.6 of the NYSE Euronext Bylaws (which would be renumbered
as Section 3.5), would be amended to allow shareholders to fill board
vacancies in order to give Holdco additional flexibility to take
actions in its capacity as the sole shareholder of NYSE Euronext
following completion of the Combination;
Section 1 of Article VIII of the NYSE Euronext
Certificate, and Section 2.11 of the NYSE Euronext Bylaws (which would
be renumbered as Section 2.9), would be amended to allow shareholders
to take actions without a meeting and without prior notice if written
consents are signed by the minimum number of votes that would be
required to approve the action at a meeting, in order to give Holdco
additional flexibility to take actions in its capacity as the sole
shareholder of NYSE Euronext following completion of the Combination,
and the reference at the end of Section 3.5 of the NYSE Euronext Bylaws
to a special meeting of shareholders would be deleted because the NYSE
Euronext shareholder may act by written consent to fill board
vacancies;
The supermajority shareholder vote requirements pursuant
to Article X to
[[Page 65243]]
amend or repeal certain provisions of the NYSE Euronext Certificate
would be eliminated and replaced with a majority vote requirement,
because a supermajority vote requirement would no longer serve any
purpose after NYSE Euronext becomes wholly owned by a single
shareholder and a majority voting standard is consistent with the
standard generally applicable for actions by shareholders under the
Delaware General Corporation Law and for actions by the parent entity
of other wholly owned subsidiaries of NYSE Euronext such as NYSE Group;
Section 2.3 of the NYSE Euronext Bylaws would be amended
to clarify that notice of shareholder meetings is not required if
waived in accordance with Section 10.3 of the NYSE Euronext Bylaws;
The requirement in Section 2.6 of the NYSE Euronext Bylaws
for the appointment of an inspector of elections for shareholders
meetings would be deleted, because the requirement for an inspector of
elections pursuant to Section 231 of the Delaware General Corporation
Law would no longer apply to NYSE Euronext after completion of the
Combination; \63\
---------------------------------------------------------------------------
\63\ See Section 231(e) of the Delaware General Corporation Law.
---------------------------------------------------------------------------
The requirement in Section 2.7 (which would be renumbered
as Section 2.6) of the NYSE Euronext Bylaws that directors be elected
by a majority of the votes cast (and that they must tender their
resignation if such a majority vote is not received), except in the
case of contested elections, and that the NYSE Euronext board of
directors may fill any resulting vacancy or may decrease the size of
the board, would be deleted and a plurality voting standard would be
adopted for all director elections, because these requirements would no
longer serve any purpose after NYSE Euronext becomes wholly owned by a
single shareholder and a plurality voting standard is consistent with
the standard generally applicable for elections of directors under the
Delaware General Corporation Law and for actions by the parent entity
of other wholly owned subsidiaries of NYSE Euronext such as NYSE Group;
The requirements in Section 2.10 of the NYSE Euronext
Bylaws requiring certain advance notice from shareholders of director
nominations and shareholder proposals, and the requirement that only
business brought before a special meeting of stockholders pursuant to
NYSE Euronext's notice of the meeting may be brought before the
meeting, would be eliminated, because these requirements would no
longer serve any purpose after NYSE Euronext becomes wholly owned by a
single shareholder;
Section 3.1 of the NYSE Euronext Bylaws would be amended
to clarify that the right of the NYSE Euronext board of directors to
fix and change the number of directors on such board is subject to any
rights of holders of any preferred stock to elect additional directors,
in order to make this provision consistent with Section 2 of Article IV
of the NYSE Euronext Certificate, which provides that preferred stock
may be issued which may have voting rights;
Sections 3.2(B) and 4.4 of the NYSE Euronext Bylaws would
be amended to add ``if any'' after the references therein to the
Nominating and Governance Committee, because NYSE Euronext would become
a wholly owned subsidiary of Holdco and, as such, may not have a
Nominating and Governance Committee;
The requirement in Section 3.4 of the NYSE Euronext Bylaws
that at least 75% of the board must be independent would be deleted,
because NYSE Euronext would be a wholly owned subsidiary of Holdco
after completion of the Combination and, therefore, it may be
appropriate for executives of Holdco and its subsidiaries to serve on
this board, and the reference to Section 3.4 in Section 3.2(A) would
accordingly be deleted;
Section 3.9 (which would be renumbered as Section 3.8) of
the NYSE Euronext Bylaws would be amended to clarify that notice of
board meetings is not required if waived in accordance with Section
10.3 of the NYSE Euronext Bylaws;
The advance notice period in Section 3.9 (which would be
renumbered as Section 3.8) of the NYSE Euronext Bylaws for electronic
or telephonic notices of board meetings would be reduced from 24 hours
to 12 hours, in order to simplify the requirements for board meetings
and to be consistent with the analogous 12-hour time period currently
required for notices pursuant to Section 3.7 of the NYSE Group Bylaws;
Section 3.12 of the NYSE Euronext Bylaws (which would be
renumbered as Section 3.11) would be amended to delete the requirement
that, if the chairman or deputy chairman of the board of directors is
also the chief executive officer or deputy chief executive officer, he
or she may not participate in executive sessions of the board of
directors, and if the chairman is not the chief executive officer or
deputy chief executive officer, he or she will act as a liaison between
the board of directors and the chief executive officer or the deputy
chief executive officer, in light of the fact that there are not
expected to be any independent, non-executive directors of NYSE
Euronext and in order to simplify the governance requirements for NYSE
Euronext as a wholly owned subsidiary of Holdco;
Certain aspects of the indemnification and expense
advancement provisions in Section 10.6 of the NYSE Euronext Bylaws,
including the terms of any insurance policy maintained by NYSE
Euronext, would be simplified in light of the fact that there are not
expected to be any independent, non-executive directors of NYSE
Euronext, and, therefore, a more streamlined process for
indemnification claims is appropriate;
The supermajority shareholder vote requirements in Section
10.10(B) of the NYSE Euronext Bylaws would be changed to a majority
vote requirement, because a supermajority vote requirement would no
longer serve any purpose after NYSE Euronext becomes wholly owned by a
single shareholder and a majority voting standard is consistent with
the standard generally applicable for actions by shareholders under the
Delaware General Corporation Law and for actions by the parent entity
of other wholly owned subsidiaries of NYSE Euronext such as NYSE Group;
In light of the fact that NYSE Alternext US LLC formally
changed its name to NYSE Amex LLC, references to NYSE Alternext US LLC
in the NYSE Euronext Bylaws would be amended to refer instead to NYSE
Amex LLC;
Section 10.13 of the NYSE Euronext Bylaws--which requires
that, for so long as NYSE Euronext directly or indirectly controls NYSE
Amex, any amendments to the NYSE Euronext Certificate must be approved
by the Commission--would be deleted and Article X of the NYSE Euronext
Certificate would be amended to incorporate this requirement; and
Certain clarifying, conforming or other technical edits
would be made to Sections 1(B), 1(C), 1(L), 2(C) and 2(E) of Article V,
Article X and Article XIII of the NYSE Euronext Certificate and to
Sections 3.7 (which would be renumbered as Section 3.6) and 3.15(A)(2)
and 3.15(B) (which would be renumbered as Section 3.14(A)(2) and
3.14(B), respectively) of the NYSE Euronext Bylaws. In addition, the
numbering of certain sections of the NYSE Euronext Certificate and NYSE
Euronext Bylaws, and cross-references to such sections, would be
deleted or updated to reflect the amendments to
[[Page 65244]]
the NYSE Euronext Certificate and the NYSE Euronext Bylaws set forth
above.
In addition, the current Independence Policy of the NYSE Euronext
board of directors would, effective as of the Combination, cease to
apply.
7. Proposed Amendments to the NYSE Group Certificate and NYSE Group
Bylaws
Under the Proposed Rule Change, the revisions summarized below to
the NYSE Group Certificate and the NYSE Group Bylaws are proposed in
order to: (1) Conform certain provisions to the analogous provisions of
the organizational documents of NYSE Euronext, which would likewise be
a wholly owned subsidiary of Holdco following completion of the
Combination; and (2) make certain clarification and technical edits
(for example, to conform the use of defined terms and other provisions
to reflect the other amendments set forth in this Proposed Rule
Change):
Section 2 of Article IV of the NYSE Group Certificate
would be amended to clarify that (1) Preferred stock may be issued
``from time to time,'' and (2) the certificate of designations for such
stock would fix, among other things, the ``relative, participating,
optional and other'' rights of such shares including the qualifications
and restrictions of any series of preferred stock, which is consistent
with the analogous provisions in Section 2 of Article IV of the NYSE
Euronext Certificate;
Section 3 of Article V of the NYSE Group Certificate would
be revised to clarify that the number of directors will be fixed ``from
time to time,'' which is consistent with the analogous provision in
Section 3 of Article VI of the NYSE Euronext Certificate;
Section 5 of Article V of the NYSE Group Certificate would
be amended to clarify that the right of the NYSE Group board of
directors to remove directors is subject to any rights of holders of
any preferred stock, in order to make this provision consistent with
Section 2 of Article IV of the NYSE Group Certificate, which provides
that preferred stock may be issued that may have voting rights, and
also to make it consistent with the analogous provision in Section 5 of
Article VI of the NYSE Euronext Certificate;
Section 2.3 of the NYSE Group Bylaws would be amended to
clarify that notice of shareholder meetings is not required if waived
in accordance with Section 7.3 of the NYSE Group Bylaws;
A new Section 2.8 would be added to the NYSE Group Bylaws
to clarify that a list of shareholders entitled to vote will be open to
examination by shareholders, because this is required by Section 219 of
the Delaware General Corporation Law and is consistent with the
analogous provision in Section 2.9 (which would be renumbered as
Section 2.8) of the NYSE Euronext Bylaws;
The reference at the end of Section 3.4 of the NYSE Group
Bylaws to a special meeting of shareholders would be deleted because
the shareholder of NYSE Group may act by written consent to fill board
vacancies pursuant to Section 2.9 of the NYSE Group Bylaws;
Section 3.7 of the NYSE Group Bylaws would be amended to
clarify that notice of any special meeting of directors is not required
if waived in accordance with Section 7.3 of the NYSE Group Bylaws, and
the methods of delivery of notices would be updated to delete
references to telegrams, provide certain requirements for notices sent
to non-U.S. addresses and add a reference to email or other electronic
transmission of notices, in each case to be consistent with the
analogous provisions in Section 3.9 (which would be renumbered as
Section 3.8) of the NYSE Euronext Bylaws;
The reference in Section 3.8 of the NYSE Group Bylaws to
restrictions on telephonic participation in meetings would be deleted,
because the NYSE Group Bylaws and the NYSE Group Certificate do not
contain any such restrictions, and the wording of this provision would
be amended to be consistent with the analogous language in Section 3.10
(renumbered as Section 3.9) of the NYSE Euronext Bylaws;
Section 7.4 would be revised to provide that the persons
who are authorized to execute contracts and other instruments on behalf
of NYSE Group would include the Chief Executive Officer, which is
consistent with the analogous provision in Section 10.4 of the NYSE
Euronext Bylaws;
Certain aspects of the indemnification and expense
advancement provisions in Section 7.6 of the NYSE Group Bylaws,
including the terms of any insurance policy maintained by NYSE Group,
would be simplified in light of the fact that there are not expected to
be any independent, non-executive directors of NYSE Group and,
therefore, a more streamlined process for indemnification claims is
appropriate, and these revisions would be consistent with the revisions
to the analogous provisions of the NYSE Euronext Bylaws set forth in
this Proposed Rule Change;
Section 7.9 of the NYSE Group Bylaws would be amended to
clarify that they may be amended or repealed, and new bylaws may be
adopted, by either (1) The NYSE Group board of directors or (2) subject
to any vote of holders of any class or series of NYSE Group stock
required by law or the NYSE Group Certificate, the affirmative vote of
holders of a majority of the votes entitled to be cast by holders of
outstanding shares of NYSE Group entitled to vote generally in the
election of directors, voting together as a single class;
In light of the fact that NYSE Alternext US LLC formally
changed its name to NYSE Amex LLC, references to NYSE Alternext US LLC
in the NYSE Group Bylaws would be amended to refer instead to NYSE Amex
LLC, and the definition of ``Regulated Subsidiary'' in the NYSE Group
Certificate would be amended to include NYSE Amex; and
Certain other clarifying, conforming or other technical
edits would be made to Sections 4(a), 4(b)(1)(A)(w), 4(b)(1)(A)(y),
4(b)(1)(A)(z), 4(b)(1)(E)(iv), 4(b)(1)(E)(vi), 4(b)(1)(E)(x),
4(b)(1)(E)(xii), 4(b)(2)(C) and 4(b)(2)(E) of Article IV, Sections 6
and 8 of Article V, Article X, Article XII and Article XIV of the NYSE
Group Certificate and to Sections 2.3, 2.9, 5.1 and 7.9 of the NYSE
Group Bylaws. In addition, the numbering of certain sections of the
NYSE Group Certificate and NYSE Group Bylaws would be updated to
reflect the amendments set forth above.
8. Proposed Amendments to Board Composition Requirements for the
Exchange, NYSE Amex, NYSE Market and NYSE Regulation
The Third Amended and Restated Operating Agreement, dated as of
April 1, 2009, of the Exchange (the ``Exchange Operating Agreement''),
currently provides that (1) A majority of the members of the Exchange's
board of directors must be U.S. persons and members of the board of
directors of NYSE Euronext who satisfy the independence requirements of
the NYSE Euronext board, and (2) at least 20% of the Exchange's board
members must be persons who are not board members of NYSE Euronext but
who qualify as independent under the independence policy of the NYSE
Euronext board of directors (the ``Non-Affiliated Exchange
Directors'').\64\ The nominating and governance committee of the NYSE
Euronext board of directors is required to designate as Non-Affiliated
Exchange Directors the candidates recommended jointly by the Director
Candidate Recommendation Committees of each of NYSE Market and
[[Page 65245]]
NYSE Regulation or, in the event there are Petition Candidates (as such
term is defined in the Exchange Operating Agreement), the candidates
that emerge from a specified process will be designated as the Non-
Affiliated Exchange Directors.\65\
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\64\ See Third Amended and Restated Operating Agreement of New
York Stock Exchange LLC, Section 2.03(a).
\65\ See id.
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Under the Proposed Rule Change, these provisions would be amended
(1) To provide that the independent members of the Exchange's board of
directors, rather than the nominating and governance committee of the
NYSE Euronext board of directors, will designate the Non-Affiliated
Exchange Directors and make the other related determinations that were
previously to be made by the nominating and governance committee of the
NYSE Euronext board of directors; (2) to provide that instead of using
the independence policy of the NYSE Euronext board of directors to
assess the independence of the Exchange's board members, the Exchange
will have its own independence policy in the form attached to this
Proposed Rule Change as Exhibit 5K (the ``SRO Director Independence
Policy''); (3) in light of the fact that the board of directors of NYSE
Euronext will be decreased in size once it becomes a wholly owned
subsidiary of Holdco, the requirement that a majority of the members of
the Exchange's board of directors must be members of the board of
directors of NYSE Euronext would be eliminated; and (4) to provide that
at least 20% of the Exchange's directors must be persons who are not
members of the board of directors of Holdco (rather than referring to
the board of directors of NYSE Euronext). Substantially the same
revisions would be made to the analogous provisions of the Amended and
Restated Operating Agreement of NYSE Amex,\66\ the Amended and Restated
Bylaws of NYSE Market \67\ and the Third Amended and Restated Bylaws of
NYSE Regulation.\68\
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\66\ See Amended and Restated Operating Agreement of NYSE Amex
LLC, Section 2.03(a).
\67\ See Amended and Restated Bylaws of NYSE Market, Inc.,
Article III Section 1.
\68\ See Third Amended and Restated Bylaws of NYSE Regulation,
Inc., Article III Section 1.
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The Amended and Restated Bylaws of NYSE Market and the Third
Amended and Restated Bylaws of NYSE Regulation would also be amended to
change the registered office of these entities from National Registered
Agents to The Corporation Trust Company and CT Corporation,
respectively. In addition, references to NYSE Alternext US LLC in the
Third Amended and Restated Bylaws of NYSE Regulation would be changed
to refer instead to NYSE Amex.
The SRO Director Independence Policy to be adopted by each of the
Exchange, NYSE Market, NYSE Regulation and NYSE Amex under the Proposed
Rule Change would be substantially similar to the current Independence
Policy of the NYSE Euronext board of directors, except that certain
conforming changes would be made, including the deletion of provisions
that currently apply only to NYSE Euronext directors and expressly do
not apply to directors of these NYSE U.S. Regulated Subsidiaries. In
particular, (1) References to NYSE Euronext would refer instead to the
relevant NYSE U.S. Regulated Subsidiary or Holdco, as applicable; (2)
the requirement that at least three-fourths of the directors must be
independent would be deleted, since the organizational documents of
these NYSE U.S. Regulated Subsidiaries contain the independence and
other qualification requirements for directors; (3) the requirement in
the Independence Policy of NYSE Euronext that the board consider the
special responsibilities of a director in light of NYSE Euronext's
ownership of NYSE U.S. Regulated Subsidiaries and European regulated
entities would be deleted, because unlike NYSE Euronext, these NYSE
U.S. Regulated Subsidiaries are not holding companies; (4) the
requirement for directors to inform the Chairman of the Nominating and
Governance Committee of certain relationships and interests would be
deleted, since the boards of these NYSE U.S. Regulated Subsidiaries do
not have a Nominating and Governance Committee, except that in the SRO
Director Independence Policy to be adopted by NYSE Regulation, this
provision would reference the Nominating and Governance Committee of
NYSE Regulation, Inc.; (5) references to NYSE Alternext, Inc. would
refer instead to NYSE Amex, because of this entity's name change; (6)
because the current Independence Policy of NYSE Euronext provides that
a director of an affiliate of a Member Organization cannot qualify as
an independent director of these NYSE U.S Regulated Subsidiaries, the
conflicting language stating that a director of an affiliate of a
Member Organization shall not per se fail to be independent would be
deleted; and (7) because language in the current Independence Policy of
NYSE Euronext provides that an executive officer of an issuer whose
securities are listed on a NYSE Exchange cannot qualify as an
independent director of these NYSE U.S Regulated Subsidiaries, the
conflicting language providing an exception applicable only to NYSE
Euronext directors would be deleted. In addition, the ``additional
independence requirements'' at the end of the current Independence
Policy of NYSE Euronext, which provides that executive officers of
foreign private issuers, executive officers of NYSE Euronext and
directors of affiliates of member organizations must together comprise
no more than a minority of the total board, would be eliminated. This
provision is designed to ensure that although persons who are directors
of an affiliate of a Member Organization or who are executive officers
of a ``foreign private issuer'' listed on a NYSE Exchange may in some
circumstances qualify as independent for purposes of NYSE Euronext
board membership, such persons may not, together with executive
officers of NYSE Euronext, constitute more than a minority of the total
NYSE Euronext directors. Under the proposed SRO Director Independence
Policy, such persons could not be deemed to be independent directors of
the relevant NYSE U.S. Regulated Subsidiary and, accordingly, this
limitation on the number of such persons who may serve on the board is
unnecessary.
9. Proposed Amendments to the Exchange Rules, NYSE Amex Rules and NYSE
Arca Equities Rules
Under the Proposed Rule Change, certain technical amendments would
be made to the Exchange Rules, as summarized below:
References therein to ``NYSE Euronext'' would be replaced
with references to Holdco, except that references to NYSE Euronext in
Rule 22 and Rule 422 would be retained and references to Holdco would
be added; and
Rule 2 would be revised to delete the definitions of
``member'' and ``member organization'' relating to NYSE Amex which are
set forth in Rule 2 for purposes of Section 1(L) of Article 5 of the
NYSE Euronext Certificate, because under the Proposed Rule Change, that
section of the NYSE Euronext Certificate will be revised to incorporate
this language [sic]
In addition, certain technical amendments would be made to the NYSE
Amex Rules and NYSE Arca Equities Rules to replace references therein
to ``NYSE Euronext'' with references to Holdco.
10. Proposed Technical Amendment to the NYSE Trust Agreement
Following completion of the Combination, NYSE Euronext will become
a wholly owned subsidiary of
[[Page 65246]]
Holdco and, as such, its board of directors will likely be reduced in
size and may not include directors who satisfy the independence
criteria that are currently applicable. Accordingly, under the Proposed
Rule Change, the functions currently performed by the nominating and
governance committee of NYSE Euronext in connection with reviewing and
appointing trustees pursuant to the Trust Agreement, dated as of April
4, 2007, by and among NYSE Euronext, NYSE Group and the other parties
thereto, would be transferred to the Holdco Nominating, Governance and
Corporate Responsibility Committee. References in such trust agreement
to the nominating and governance committee of NYSE Euronext would be
replaced with references to the Holdco Nominating, Governance and
Corporate Responsibility Committee, as indicated in Exhibit 5O attached
to this Proposed Rule Change.
11. Statutory Basis
NYSE Arca believes that this filing is consistent with Section 6(b)
\69\ of the Exchange Act in general, and furthers the objectives of
Section 6(b)(1) \70\ in particular, in that it enables NYSE Arca to be
so organized as to have the capacity to be able to carry out the
purposes of the Exchange Act and to comply, and to enforce compliance
by its exchange members and persons associated with its exchange
members, with the provisions of the Exchange Act, the rules and
regulations thereunder, and the rules of NYSE Arca. With respect to the
ability of the Commission to enforce the Exchange Act as it applies to
the U.S. Regulated Subsidiaries after the Combination, the U.S.
Regulated Subsidiaries will operate in the same manner following the
Combination as they operate today. Thus, the Commission will continue
to have plenary regulatory authority over the U.S. Regulated
Subsidiaries, as is the case currently with these entities. The
Proposed Rule Change is consistent with and will facilitate an
ownership structure that will provide the Commission with appropriate
oversight tools to ensure that the Commission will have the ability to
enforce the Exchange Act with respect to each U.S. Regulated
Subsidiary, its direct and indirect parent entities and its directors,
officers, employees and agents to the extent they are involved in the
activities of such U.S. Regulated Subsidiary.
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\69\ 15 U.S.C. 78(f)(b).
\70\ 15 U.S.C. 78(f)(b)(1).
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NYSE Arca also believes that this filing furthers the objectives of
Section 6(b)(5) \71\ of the Exchange Act because the Proposed Rule
Change summarized herein would be consistent with and facilitate a
governance and regulatory structure that is designed to prevent
fraudulent and manipulative acts and practices, to promote just and
equitable principles of trade, to foster cooperation and coordination
with persons engaged in regulating, clearing, settling, processing
information with respect to, and facilitating transactions in
securities, to remove impediments to, and perfect the mechanism of a
free and open market and a national market system and, in general, to
protect investors and the public interest. NYSE Arca expects that the
Combination will position the Holdco Group to be a leader in a diverse
set of large and growing businesses, including derivatives, listings,
cash equities, post-trade settlement and asset servicing, market data
and technology servicing. NYSE Arca believes this will enable the
Holdco Group to leverage technology and a unique collection of markets
to create a mutually reinforcing capital markets community driving
efficiencies and innovation for clients and efficient, transparent and
well-regulated markets for issuers and clients. As a true pacesetter
across the spectrum of capital markets services, the Holdco Group would
be positioned to offer clients global scale, product innovation,
operational and capital efficiencies and an enhanced range of
technology and market information solutions.
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\71\ 15 U.S.C. 78(f)(b)(5).
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In addition, NYSE Arca expects that the Holdco Group would be
positioned to serve as a benchmark regulatory model, facilitating
transparency and standardization in capital markets globally, while
continuing to operate all national exchanges under local regulatory
frameworks.
B. Self-Regulatory Organization's Statement on Burden on Competition
NYSE Arca does not believe that the Proposed Rule Change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Exchange Act.
C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants or Others
NYSE Arca has neither solicited nor received written comments on
the Proposed Rule Change.
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
Within 45 days of the date of publication of this notice in the
Federal Register or within such longer period (i) As the Commission may
designate up to 90 days of such date if it finds such longer period to
be appropriate and publishes its reasons for so finding or (ii) as to
which the self-regulatory organization consents, the Commission will:
(A) By order approve or disapprove such proposed rule change, or
(B) Institute proceedings to determine whether the proposed rule
change should be disapproved.
IV. Solicitation of Comments
Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:
Electronic Comments
Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
Send an e-mail to [email protected]. Please include
File Number SR-NYSEArca-2011-72 on the subject line.
Paper Comments
Send paper comments in triplicate to Elizabeth M. Murphy,
Secretary, Securities and Exchange Commission, 100 F Street, NE.,
Washington, DC 20549-1090.
All submissions should refer to File Number SR-NYSEArca-2011-72. This
file number should be included on the subject line if e-mail is used.
To help the Commission process and review your comments more
efficiently, please use only one method. The Commission will post all
comments on the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments,
all written statements with respect to the proposed rule change that
are filed with the Commission, and all written communications relating
to the proposed rule change between the Commission and any person,
other than those that may be withheld from the public in accordance
with the provisions of 5 U.S.C. 552, will be available for Web site
viewing and printing in the Commission's Public Reference Room, 100 F
Street, NE., Washington, DC 20549, on official
[[Page 65247]]
business days between the hours of 10 a.m. and 3 p.m. Copies of the
filing also will be available for inspection and copying at the
principal office of the Exchange. All comments received will be posted
without change; the Commission does not edit personal identifying
information from submissions. You should submit only information that
you wish to make available publicly. All submissions should refer to
File Number SR-NYSEArca-2011-72 and should be submitted on or before
November 10, 2011.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\72\
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\72\ 17 CFR 200.30-3(a)(12).
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Elizabeth M. Murphy,
Secretary.
[FR Doc. 2011-27197 Filed 10-19-11; 8:45 am]
BILLING CODE 8011-01-P