

[Federal Register: April 10, 2007 (Volume 72, Number 68)]
[Notices]               
[Page 17970-17972]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10ap07-123]                         

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-55567; File No. SR-NYSE-2007-35]

 
Self-Regulatory Organizations; New York Stock Exchange LLC; 
Notice of Filing and Immediate Effectiveness of Proposed Rule Change 
Relating to Technical Amendments to the Amended and Restated 
Certificate of Incorporation of NYSE Euronext

 April 2, 2007.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that 
on March 29, 2007, New York Stock Exchange LLC (``Exchange'' or 
``NYSE'') filed with the Securities and Exchange Commission 
(``Commission'') the proposed rule change as described in Items I and 
II below, which Items have been prepared substantially by the Exchange. 
The Exchange filed the proposed rule change pursuant to Section 
19(b)(3)(A) of the Act \3\ and Rule 19b-4(f)(6) thereunder,\4\ which 
renders the proposal effective upon filing with the Commission. 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.
    \3\ 15 U.S.C. 78s(b)(3)(A).
    \4\ 17 CFR 240.19b-4(f)(6).
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to make certain technical changes to the 
amended and restated certificate of incorporation of NYSE Euronext to 
remove all references to ``Year 1 NYSE Shares'' and ``Year 1 NYSE Group 
Shares'' from the provisions regarding transfer restrictions and to 
clarify that it is the currently operative certificate of incorporation 
of NYSE Group, Inc. (and not the certificate of incorporation of NYSE 
Group, Inc. that will be operative after the closing of the Combination 
(as defined below)) which contains the definitions of the terms ``Year 
2 NYSE Share'' and ``Year 3 NYSE Share.'' The text of the proposed rule 
change is available at the Exchange, http://www.nyse.com, and the 

Commission's Public Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the Exchange included statements

[[Page 17971]]

concerning the purpose of and basis for the proposed rule change and 
discussed any comments it received on the proposed rule change. The 
text of these statements may be examined at the places specified in 
Item IV below. The Exchange has prepared summaries, set forth in 
Sections A, B, and C below, of the most significant aspects of such 
statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and the 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange, a New York limited liability company, registered 
national securities exchange, and self-regulatory organization, is 
submitting this rule filing to the Commission in connection with the 
proposed business combination (``Combination'') of NYSE Group, Inc., a 
Delaware corporation (``NYSE Group''), with Euronext N.V., a company 
organized under the laws of The Netherlands (``Euronext''). As a result 
of the Combination, the businesses of NYSE Group (including that of the 
Exchange and NYSE Arca, Inc., a Delaware corporation, registered 
national securities exchange, and self-regulatory organization) and 
Euronext will be held under a single, publicly traded holding company 
named NYSE Euronext, a Delaware corporation (``NYSE Euronext''). 
Following the Combination, each of NYSE Group and Euronext (or a 
successor Dutch holding company) will be a separate subsidiary of NYSE 
Euronext, and their respective businesses and assets will continue to 
be held as they are currently held (subject to any post-closing 
reorganization of Euronext). The Commission has approved the Exchange's 
rule filing in connection with the Combination (``Combination Filing'') 
\5\ and the Combination is scheduled to close on April 4, 2007.
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    \5\ Securities Exchange Act Release No. 55293 (February 14, 
2007), 72 FR 8033 (February 22, 2007) (SR-NYSE-2006-120).
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    Subsequent to the Combination Filing's approval, the transfer 
restrictions on the Year 1 NYSE Shares, as defined in the currently 
operative certificate of incorporation of NYSE Group, expired, causing 
the references to ``NYSE Year 1 Shares'' and ``NYSE Group Year 1 
Shares'' in the amended and restated certificate of incorporation of 
NYSE Euronext to become obsolete and potentially confusing. 
Additionally, the Exchange wishes to clarify that it is the currently 
operative certificate of incorporation of NYSE Group (and not the 
certificate of incorporation of NYSE Group that will be operative after 
the closing of the Combination) in which the terms ``Year 2 NYSE 
Share'' and ``Year 3 NYSE Share'' are defined. The Exchange is also 
adding the date on which the amended and restated certificate of 
incorporation of NYSE Euronext is being filed. The proposed changes do 
not affect the substance of the amended and restated certificate of 
incorporation of NYSE Euronext in any way. The Exchange needs the 
proposed rule change to be effective and operative prior to the 
consummation of the Combination, as it must file the amended and 
restated certificate of incorporation of NYSE Euronext with the 
Delaware Secretary of State before the closing of the Combination,\6\ 
as contemplated by the Combination Filing.
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    \6\ The Commission notes that the Exchange included references 
in the proposed rule change to filing the amended and restated 
certificate of incorporation of NYSE Euronext with the Delaware 
Secretary of State and the Secretary of State of New York, before 
and at the closing of the Combination. The Commission staff 
clarified with the Exchange that the correct reference should be to 
filing with the Delaware Secretary of State before the closing of 
the Combination. Telephone conversation between Janet Kissane, Vice 
President and Associate General Counsel, NYSE Group, and Kim M. 
Allen, Special Counsel, Division of Market Regulation, Commission, 
on March 29, 2007.
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2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with the requirement under Section 6(b)(5) \7\ of the Act that an 
exchange have rules that are designed to promote just and equitable 
principles of trade, 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.
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    \7\ 15 U.S.C. 78f(b)(5).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange 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 Act.

C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants, or Others

    The Exchange 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

    Because the foregoing proposed rule change does not: (A) 
Significantly affect the protection of investors or the public 
interest; (B) impose any significant burden on competition; and (C) 
become operative for 30 days after the date of the filing, or such 
shorter time as the Commission may designate if consistent with the 
protection of investors and the public interest, the proposed rule 
change has become effective pursuant to Section 19(b)(3)(A) of the Act 
\8\ and Rule 19b-4(f)(6) thereunder.\9\
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    \8\ 15 U.S.C. 78s(b)(3)(A).
    \9\ 17 CFR 240.19b-4(f)(6).
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    A proposed rule change filed under Rule 19b-4(f)(6) \10\ normally 
may not become operative prior to 30 days after the date of filing. 
However, Rule 19b-4(f)(6)(iii) \11\ permits the Commission to designate 
a shorter time if such action is consistent with the protection of 
investors and the public interest. The Exchange has requested that the 
Commission waive the 30-day operative delay, and designate the proposed 
rule change immediately operative.\12\ The Commission believes that 
waiving the 30-day operative delay is consistent with the protection of 
investors and the public interest.\13\ The Exchange has stated that the 
amended and restated certificate of incorporation of NYSE Euronext as 
modified by this proposed rule change must be filed with the Delaware 
Secretary of State before the closing of the Combination that is 
scheduled for April 4, 2007. The Commission notes that the proposed 
modifications to the amended and restated certificate of incorporation 
of NYSE Euronext are technical changes that are non-substantive. 
Accordingly, the Commission designates that the proposed rule change 
become operative immediately.
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    \10\ Id.
    \11\ 17 CFR 240.19b-4(f)(6)(iii).
    \12\ The Exchange also asked the Commission to waive the five-
business day pre-filing notice requirement. See Rule 19b-
4(f)(6)(iii), 17 CFR 240.19b-4(f)(6)(iii). The Commission is 
exercising its authority to designate a shorter time, and notes that 
the Exchange provided the Commission with written notice of its 
intention to file the proposed rule change on March 26, 2007.
    \13\ For purposes only of waiving the 30-day operative delay, 
the Commission has considered the proposed rule's impact on 
efficiency, competition, and capital formation. 15 U.S.C. 78c(f).
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    At any time within 60 days of the filing of the proposed rule 
change, the Commission may summarily abrogate such rule change if it 
appears to the Commission that such action is necessary or appropriate 
in the public interest, for the protection of investors, or otherwise 
in furtherance of the purposes of the Act.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and

[[Page 17972]]

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 rule-comments@sec.gov. Please include 

File Number SR-NYSE-2007-35 on the subject line.

Paper Comments

     Send paper comments in triplicate to Nancy M. Morris, 
Secretary, Securities and Exchange Commission, 100 F Street, NE., 
Washington, DC 20549-1090.

All submissions should refer to File Number SR-NYSE-2007-35. 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 inspection and 
copying in the Commission's Public Reference Room. Copies of such 
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-NYSE-2007-35 and should be submitted on or before May 1, 
2007.
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    \14\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\14\
Florence E. Harmon,
Deputy Secretary.
[FR Doc. E7-6669 Filed 4-9-07; 8:45 am]

BILLING CODE 8010-01-P
