
[Federal Register Volume 76, Number 203 (Thursday, October 20, 2011)]
[Notices]
[Pages 65288-65305]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-27190]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-65562; File No. SR-NYSE-2011-51]


Self-Regulatory Organizations; New York Stock Exchange, LLC; 
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 U.S. Securities Exchange 
Act of 1934, as amended (the ``Exchange Act''), and Rule 19b-4 
thereunder,\2\ notice is hereby given that on October 12, 2011, New 
York Stock Exchange, LLC (the ``Exchange'') filed with the U.S. 
Securities and Exchange Commission (the ``Commission'') the proposed 
rule change as described in Items I, II, and III below, which items 
have been prepared substantially by the Exchange. 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

    The Exchange, a New York limited liability company, 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'')--the Exchange, NYSE Arca, Inc. 
(``NYSE Arca'') 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''). NYSE Arca 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

[[Page 65289]]

``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

    The Exchange is proposing that, pursuant to the Combination, its 
indirect parent, NYSE Euronext, will become a wholly owned subsidiary 
of Holdco. In addition, the Exchange 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/or rules 
of NYSE Amex and NYSE Arca Equities 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. The Exchange 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, the Exchange 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 
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

[[Page 65290]]

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, 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 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%

[[Page 65291]]

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. 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 the Exchange, 
the

[[Page 65292]]

Commission's Public Reference Room, and on the Web site of the Exchange 
(http://www.nyse.com). The text of Exhibits 5A through 5Q of the 
Proposed Rule Change are also available on the Exchange'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, the Exchange 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 the Exchange 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, the Exchange 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. The Exchange 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
    The Exchange 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 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

[[Page 65293]]

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.
---------------------------------------------------------------------------

     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.
    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

[[Page 65294]]

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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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 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, the Exchange 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.
---------------------------------------------------------------------------

    \26\ The Exchange 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

[[Page 65295]]

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 the Exchange's Web site and the Commission's Web site.
    The Exchange 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
    The Exchange 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, the Exchange 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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    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 ensure 
compliance with the Holdco Transfer Obligation.\30\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \31\ See Form of Deed of Amendment to Holdco Articles of 
Association, Article 35.6.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \32\ See Form of Deed of Amendment to Holdco Articles of 
Association, Article 35.5.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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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[[Page 65296]]

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.
---------------------------------------------------------------------------

    \35\ See Second Amended and Restated Certificate of 
Incorporation of NYSE Group, Inc., Article IV Section 4(b).
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    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 
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).
---------------------------------------------------------------------------

    \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.).
---------------------------------------------------------------------------

    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

[[Page 65297]]

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 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.
---------------------------------------------------------------------------

    The Exchange 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 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

[[Page 65298]]

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.
---------------------------------------------------------------------------

    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 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.

[[Page 65299]]

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.
    The Exchange 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. The Exchange 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, the Exchange 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\ The Exchange 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. 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 it 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 the Exchange'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. The Exchange 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,

[[Page 65300]]

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 the 
Exchange 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\
---------------------------------------------------------------------------

    \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 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

[[Page 65301]]

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 (which would be renumbered as Section 3.11) 
of the NYSE Euronext Bylaws 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 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

[[Page 65302]]

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 e-mail 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 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\
---------------------------------------------------------------------------

    \64\ See Third Amended and Restated Operating Agreement of New 
York Stock Exchange LLC, Section 2.03(a).
    \65\ See id.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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

[[Page 65303]]

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,
    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 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. Listing of Holdco Shares on the Exchange
    Holdco intends to list its shares on the Exchange, and to apply for 
admission of its shares to trading on the regulated market of the 
Frankfurt Stock Exchange and the regulated market segment of the 
Euronext Paris. Pursuant to Rule 497, any security of Holdco and its 
affiliates will not be approved for listing on the Exchange unless NYSE 
Regulation finds that such securities satisfy the Exchange's rules for 
listing, and such finding is approved by the NYSE Regulation board of 
directors.
    NYSE Regulation will be responsible for all Exchange listing-
compliance decisions with respect to Holdco as an issuer.\69\ NYSE 
Regulation will prepare a quarterly report, as described in Rule 
497(c)(1) summarizing its monitoring of Holdco's compliance with such 
listing standards. This report will be provided to the NYSE Regulation 
board of directors and a copy will be forwarded promptly to the 
Commission. Once a year, an independent accounting firm will review 
Holdco's compliance with the Exchange's listing standards and a copy of 
its report will be forwarded promptly to the Commission. If NYSE 
Regulation determines that Holdco is not in compliance with any 
applicable listing standard of the Exchange, NYSE Regulation will 
notify Holdco promptly and request a plan for compliance. Within five 
business days of providing such notice to Holdco, NYSE Regulation will 
file a report with the Commission

[[Page 65304]]

identifying the date on which Holdco is not in compliance with the 
listing standard at issue and any other material information conveyed 
to Holdco in the notice of non-compliance. Within five business days of 
receiving a plan of compliance from the issuer, NYSE Regulation will 
notify the Commission of such receipt, whether the plan was accepted by 
NYSE Regulation or what other action was taken with respect to the 
plan, and the time period provided to regain compliance with the 
Exchange's listing standard, if any.
---------------------------------------------------------------------------

    \69\ Certain aspects of NYSE Regulation's responsibilities are 
performed by FINRA, subject to oversight by NYSE Regulation.
---------------------------------------------------------------------------

12. Statutory Basis
    The Exchange believes that this filing is consistent with Section 
6(b) \70\ of the Exchange Act in general, and furthers the objectives 
of Section 6(b)(1) \71\ in particular, in that it enables the Exchange 
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 the Exchange. 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.
---------------------------------------------------------------------------

    \70\ 15 U.S.C. 78(f)(b).
    \71\ 15 U.S.C. 78(f)(b)(1).
---------------------------------------------------------------------------

    The Exchange also believes that this filing furthers the objectives 
of Section 6(b)(5) \72\ 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. The Exchange 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. The Exchange 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.
---------------------------------------------------------------------------

    \72\ 15 U.S.C. 78(f)(b)(5).
---------------------------------------------------------------------------

    In addition, the Exchange 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

    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 Exchange 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

    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 Exchange consents, the Commission shall: (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 rule-comments@sec.gov. Please include 
File Number SR-NYSE-2011-51 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-NYSE-2011-51. 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 business days between the hours of 10 
a.m. and 3 p.m. 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-2011-51 and should be 
submitted on or before November 10, 2011.


[[Page 65305]]


    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\73\
---------------------------------------------------------------------------

    \73\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Elizabeth M. Murphy,
Secretary.
[FR Doc. 2011-27190 Filed 10-19-11; 8:45 am]
BILLING CODE 8011-01-P


