[Federal Register Volume 71, Number 8 (Thursday, January 12, 2006)]
[Notices]
[Pages 2080-2095]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-299]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-53073; File No. SR-NYSE-2005-77]


Self-Regulatory Organizations; New York Stock Exchange, Inc.; 
Notice of Filing of Proposed Rule Change and Amendment Nos. 1, 2, 3, 4 
and 5 Relating to the Exchange's Business Combination with Archipelago 
Holdings, Inc.

January 6, 2006.
    Pursuant to section 19(b)(1) of the Securities Exchange Act of 
1934, as amended, (``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is 
hereby given that on November 3, 2005, the New York Stock Exchange, 
Inc. (``NYSE'' or ``Exchange'') filed with the Securities and Exchange 
Commission (``Commission'') the proposed rule change as described in 
Items I, II, and III below, which Items have been prepared by the 
Exchange. On December 1, 2005, the Exchange filed Amendment No. 1 to 
the proposed rule change. The Exchange filed Amendment No. 2 to the 
proposed rule change on December 12, 2005, and withdrew Amendment No. 2 
on December 12, 2005. On December 12, 2005, the Exchange filed 
Amendment No. 3.\3\ The Exchange filed Amendment No. 4 to the proposed 
rule change on December 21, 2005, and withdrew Amendment No. 4 on 
December 21, 2005. On December 21, 2005, the Exchange filed Amendment 
No. 5.\4\
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    \1\ 15 U.S.C. 78s(b)(l).
    \2\ 17 CFR 240.19b-4.
    \3\ See Form 19b-4 dated December 12, 2005 (``Amendment No. 
3''). Amendment No. 3 replaced Amendment No. 1 in its entirety.
    \4\ See Partial Amendment dated December 21, 2005 (``Amendment 
No. 5'').
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    The Commission is publishing this notice to solicit comments on the 
proposed rule change, as amended, from interested persons.

I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange is submitting this rule filing, as amended, 
(``Proposed Rule Change'') in connection with its proposed merger 
(``Merger'') with Archipelago Holdings, Inc., a Delaware corporation 
(``Archipelago''), as a result of which the businesses of the NYSE and 
Archipelago will be held under a single, publicly traded holding 
company named NYSE Group, Inc. (``NYSE Group''). Following the Merger, 
the NYSE's current businesses and assets will be held in three separate 
entities affiliated with NYSE Group--New York Stock Exchange LLC, NYSE 
Market, Inc. (``NYSE Market''), and NYSE Regulation, Inc. (``NYSE 
Regulation'').
    To effect the Merger, the NYSE proposes that the organizational 
documents of NYSE Group and its subsidiaries as in effect immediately 
prior to the effective time of the Merger will be amended and restated. 
In addition, the NYSE proposes that New York Stock Exchange LLC, NYSE 
Regulation and NYSE Market will enter into a delegation agreement, and 
the Pacific Exchange, Inc. (``Pacific Exchange'') and NYSE Regulation 
will enter into a regulatory services agreement (``Pacific Exchange 
Regulatory Services Agreement''). In addition, the NYSE proposes 
various amendments to its rules to reflect the Merger, which, after the 
Merger, will be the rules of New York Stock Exchange LLC. The Exchange 
states that the present Constitution of the NYSE will be eliminated and 
relevant provisions thereof will be included in the rules of New York 
Stock Exchange LLC.
    The text of the Proposed Rule Change is available on the Exchange's 
Web site (http://www.nyse.com), at the Exchange's Office of the 
Secretary, and at the Commission's Public Reference Room. The text of 
Exhibits 5A through 5K of the Proposed Rule Change and Amendment No. 5 
are also available on the Commission's Web site (http://www.sec.gov/rules/sro.shtml).

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

    In its filing with the Commission, the Exchange included statements 
concerning the purpose of, and basis for, the proposed rule change, as 
amended. The text of these statements may be examined at the places 
specified in Item IV below. The Exchange has prepared summaries, set 
forth in sections A, B, and C below, of the most significant aspects of 
such statements.

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

1. Purpose
    The Exchange is submitting the Proposed Rule Change to the 
Commission in connection with the Merger with Archipelago. Following 
the Merger, the businesses of the NYSE and Archipelago will be held 
under a single, publicly traded holding company named NYSE Group, a 
Delaware corporation. The Merger will occur pursuant to the terms of 
the Agreement and Plan of Merger, dated as of April 20,

[[Page 2081]]

2005, as amended and restated as of July 20, 2005 and as amended as of 
October 20, 2005 and as of November 2, 2005 (as amended from time to 
time, ``Merger Agreement''), by and among the NYSE, Archipelago, NYSE 
Group, NYSE Merger Corporation Sub, Inc., a Delaware corporation and a 
wholly owned subsidiary of the NYSE, NYSE Merger Sub LLC, a New York 
limited liability company and a wholly owned subsidiary of NYSE Group, 
and Archipelago Merger Sub, Inc., a Delaware corporation and a wholly 
owned subsidiary of NYSE Group. The Merger is subject to approval of 
the NYSE members and Archipelago stockholders. The joint proxy 
statement/prospectus sent to the NYSE members and Archipelago 
stockholders in connection with their consideration of the Merger has 
been filed with the Commission.
    The Merger will have the effect of ``demutualizing'' the NYSE 
because equity ownership in the NYSE will be separated from trading 
privileges on the NYSE. In the Merger, NYSE members will receive cash 
and/or shares of NYSE Group common stock. (Archipelago stockholders 
will receive solely shares of NYSE Group common stock.) After the 
Merger, trading privileges on the NYSE will be made available 
exclusively through trading licenses, as described in greater detail 
below.
    The corporate structure and governance that the Proposed Rule 
Change affects seek to preserve and extend the functional separation, 
yet pervasive communication, achieved under the NYSE's comprehensive 
reforms to its governance architecture in 2003, and to insulate the 
NYSE's self-regulatory function from the additional cross-currents 
created by demutualization and public ownership.
    In connection with the Merger, the NYSE proposes to engage in a 
reorganization (``Reorganization'') so that immediately after the 
Merger, its businesses and assets are held in three separate entities:
    1. New York Stock Exchange LLC. New York Stock Exchange LLC, a New 
York limited liability company, will be a wholly owned subsidiary of 
NYSE Group and will be the entity registered as a national securities 
exchange. After the Merger, New York Stock Exchange LLC is not expected 
to hold any assets other than all of the equity interests of NYSE 
Market and NYSE Regulation.
    2. NYSE Market, Inc. NYSE Market, a Delaware corporation, will be a 
wholly owned subsidiary of New York Stock Exchange LLC. After the 
Merger, NYSE Market will hold all of the NYSE's current assets and 
liabilities other than the New York Stock Exchange LLC's registration 
as a national securities exchange and other than the assets and 
liabilities relating to the regulatory functions currently conducted by 
the NYSE. NYSE Market will be the entity holding the assets and 
liabilities relating to the current securities exchange business of the 
NYSE.
    3. NYSE Regulation, Inc. NYSE Regulation, a New York Type A not-
for-profit corporation, will perform the regulatory responsibilities 
currently conducted by NYSE for New York Stock Exchange LLC and will 
contract to perform many of the regulatory functions of the Pacific 
Exchange for Archipelago. NYSE Regulation's sole member under the New 
York Not-for-Profit Corporation Law and thereby sole voting equity 
holder will be New York Stock Exchange LLC.\5\
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    \5\ The New York Not-for-Profit Corporation Law, under which 
NYSE Regulation is incorporated, uses the term ``members'' to 
describe those that have rights to distribution on liquidation and 
to elect the board of directors, analogous to the rights of 
stockholders as owners of a business corporation. New York Stock 
Exchange LLC will be the sole ``member'' of NYSE Regulation within 
the meaning of the New York Not-for-Profit Corporation Law, but this 
term should not be confused with the concept of a member or member 
organization of New York Stock Exchange LLC under its rules and for 
purposes of section 6 of the Act.
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    Following the Merger, Archipelago will become a wholly owned 
subsidiary of NYSE Group; PCX Holdings, Inc., a Delaware corporation 
(``PCX Holdings''), will remain a wholly owned subsidiary of 
Archipelago; and the Pacific Exchange, a Delaware corporation, will 
remain a wholly owned subsidiary of PCX Holdings. Archipelago's 
businesses and assets will continue to be held by Archipelago and its 
subsidiaries. As noted above, pursuant to a services agreement, NYSE 
Regulation will perform many of the regulatory functions of the Pacific 
Exchange.

Purpose of the Merger and Reorganization

    The Merger will have the effect of (1) converting the NYSE from a 
not-for-profit entity into a for-profit entity (other than with respect 
to the regulatory responsibilities currently conducted by the NYSE, 
which will be separated into a not-for-profit entity), (2) 
demutualizing the NYSE by separating equity ownership in the NYSE from 
trading privileges on the NYSE, and (3) combining the businesses of the 
NYSE and Archipelago.
    With the exception of NYSE Regulation, NYSE Group and its 
subsidiaries will be for-profit entities, rather than not-for-profit 
entities. The conversion from a not-for-profit entity to a for-profit 
entity will increase the NYSE's capability to invest in its growth both 
internally and through acquisitions, and increase its focus on 
efficiency and cost reduction. Further, as a public, listed company, 
NYSE Group will have improved access to capital, and the ability to 
engage in future transactions using its stock as acquisition currency. 
The NYSE also expects that, after the Merger, NYSE Group will have much 
greater flexibility and ability to respond to competitive pressures 
than the NYSE's current membership structure permits. In addition, as a 
for-profit entity, NYSE Group will have an increased transparency and a 
sharper focus on costs, efficiency, and growth.
    The combination of the businesses of the NYSE and Archipelago under 
a single holding company also has the advantage of creating a 
diversified business model for the combined company. The combination 
provides opportunities for cost savings by eliminating duplicative 
activities and realizing synergies between the business of Archipelago 
and the NYSE, while at the same time realizing revenue growth 
opportunities.
    As part of the Reorganization, NYSE Regulation will be a separate, 
not-for-profit entity. The NYSE believes that NYSE Regulation's 
continued status as a not-for-profit entity will facilitate NYSE Group 
and its subsidiaries in managing conflicts between their business and 
regulatory objectives, maintaining regulatory standards and complying 
with the obligations of the exchange subsidiaries as registered 
national securities exchanges and self-regulatory organizations 
(``SROs'').

Corporate Structure

NYSE Group

    Following the Merger, NYSE Group will be a for-profit, publicly 
traded stock corporation and will act as a holding company for the 
businesses of the NYSE and Archipelago. NYSE Group will hold all of the 
equity interests in New York Stock Exchange LLC and Archipelago.

NYSE Group Board of Directors

    The NYSE Group board of directors will consist of a number of 
directors that will be fixed from time to time by the NYSE Group board 
of directors pursuant to a resolution adopted by a majority of the 
board of directors. It is currently contemplated that the NYSE Group 
board of directors will consist of at least 11 directors, one of whom 
will be the chief executive officer of NYSE Group.
    The initial term of directors will end with the first annual 
stockholders

[[Page 2082]]

meeting to be held by NYSE Group. Thereafter, the directors will serve 
one-year terms. Nominees to the NYSE Group board of directors will be 
recommended by the nominating and governance committee of the NYSE 
Group board of directors. The nominating and governance committee will 
consider shareholder and public investor recommendations for candidates 
for the NYSE Group board of directors.
    The NYSE Group board of directors will appoint the chairman of the 
board. The chairman may be, but need not be, the chief executive 
officer of NYSE Group. If the chairman is not the chief executive 
officer, then he or she must satisfy the board's independence 
criteria.\6\ A director may serve for any number of terms, consecutive 
or otherwise. Directors need not be stockholders of NYSE Group.
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    \6\ The current NYSE Constitution provides that the positions of 
chairman of the board and chief executive officer of the NYSE may 
be, but need not be, held by the same person. The current chairman 
of the board of the NYSE is not the chief executive officer of the 
NYSE, and is therefore required to satisfy the same independence 
criteria applicable to the other independent members of the board. 
Under the current NYSE Constitution, if the chairman of the board is 
the chief executive officer, then such individual is not an 
independent director and cannot participate in executive sessions of 
the independent directors.
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    Under section 3.2 of the proposed NYSE Group Bylaws, all members of 
the NYSE Group board of directors (other than the chief executive 
officer of NYSE Group) must satisfy the requirements for directors of 
NYSE Group for independence from management, member organizations and 
listed companies. The independent nature of the NYSE Group board of 
directors will be modeled after the current Commission-approved 
independence structure of the NYSE board of directors.\7\ Specifically, 
each member of the NYSE Group board of directors, other than the chief 
executive officer of NYSE Group, will be required to be independent 
from (1) NYSE Group and its subsidiaries,\8\ (2) any member 
organizations of New York Stock Exchange LLC or the Pacific 
Exchange,\9\ and (3) any companies listed on New York Stock Exchange 
LLC or the Pacific Exchange. The independence policy of the NYSE Group 
board of directors applicable to elected members of the NYSE Group 
board of directors is part of the Proposed Rule Change. This policy 
mirrors the NYSE's current independence policy,\10\ but has been 
expanded to cover relationships with the Pacific Exchange and its 
affiliates, and the member organizations and listed companies of the 
Pacific Exchange. It also removes the reference to lessor members, 
since there will be no such category after the Mergers, and no look-
back is intended to disqualify individuals who were lessor members 
within the last three years.
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    \7\ See Securities Exchange Act Release No. 48946 (December 17, 
2003), 68 FR 74678 (December 24, 2003).
    \8\ At the request of the Exchange, the Commission replaced ``or 
its subsidiaries'' with ``and its subsidiaries.'' Telephone 
conversation between James F. Duffy, Senior Vice President and 
Deputy General Counsel, NYSE, et al., and Heather A. Seidel, Senior 
Special Counsel, Commission, Division of Market Regulation 
(``Division''), et al., on December 14, 2005 (``December 14 
Telephone Conversation'').
    \9\ This would include member organizations of New York Stock 
Exchange LLC and OTP Firms of the Pacific Exchange and ETP Holders 
of PCX Equities, Inc. or non-member broker-dealers that engage in 
business involving substantial direct contact with securities 
customers, as well as members and allied members (as defined in 
paragraphs (a) and (c), respectively, of Rule 2 of New York Stock 
Exchange LLC), and OTP Holders and ``allied persons'' (as defined, 
respectively, in Rules 1.1(q) and 1.1(b) of the Pacific Exchange and 
Rule 1.1(c) of PCX Equities, Inc.).
    \10\ The NYSE's current independence policy was filed with and 
approved by the Commission. See Securities Exchange Act Release No. 
51217 (February 16, 2005), 70 FR 9688 (February 28, 2005).
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Committees of NYSE Group Board of Directors

    After the Merger, the NYSE Group board of directors may create one 
or more committees. It is expected that, upon completion of the Merger, 
the NYSE Group board of directors will initially have the following 
three committees: (1) An audit committee; (2) a human resource and 
compensation committee; and (3) a nominating and governance committee.
    Each committee of the NYSE Group board of directors will consist 
solely of directors meeting the independence requirements of NYSE 
Group. As a result, the chief executive officer of NYSE Group will not 
be permitted to serve on any of these committees. The NYSE Group board 
of directors will review and adopt a charter for each of these 
committees annually.

NYSE Group Management

    The officers of NYSE Group will manage the business and affairs of 
NYSE Group, subject to the oversight of the NYSE Group board of 
directors, and except as discussed below in relation to NYSE 
Regulation. The only member of the senior management team of NYSE Group 
who will also serve as a director of NYSE Group is the chief executive 
officer of NYSE Group. The chief executive officer of NYSE Regulation 
will attend, as appropriate, meetings of the board of directors of NYSE 
Group and its subsidiaries, and also will not be prohibited from 
meeting with management of NYSE Group and its subsidiaries. However, he 
or she will not be an officer or employee of any affiliated entity 
other than NYSE Regulation and will report solely to the NYSE 
Regulation board of directors.

Voting and Ownership Limitations of NYSE Group Stock

    The proposed NYSE Group Certificate of Incorporation will place 
certain restrictions on the ability to vote and own shares of stock of 
NYSE Group.\11\ Under the proposed Certificate of Incorporation of NYSE 
Group, no person (either alone or together with its related 
persons\12\) will be entitled to

[[Page 2083]]

vote or cause the voting of shares of stock of NYSE Group representing 
in the aggregate more than 10% of the total number of votes entitled to 
be cast on any matter, and no person (either alone or together with its 
related persons) may acquire the ability to vote more than 10% of the 
aggregate number of votes being cast on any matter by virtue of 
agreements entered into with other persons not to vote shares of NYSE 
Group's outstanding capital stock. NYSE Group shall disregard any such 
votes purported to be cast in excess of this limitation.\13\
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    \11\ At the request of the Exchange, the Commission staff 
replaced the phrase ``common stock'' with ``stock.'' Telephone 
conversation between James F. Duffy, Senior Vice President and 
Deputy General Counsel, NYSE, and Heather A. Seidel, Senior Special 
Counsel, Commission, Division, on January 3, 2006 (``January 3 
Telephone Conversation'').
    \12\ A ``related person'' means, with respect to any person: (i) 
Any ``affiliate'' of such person (as such term is defined in Rule 
12b-2 under the Act); (ii) any other person(s) with which such first 
person has any agreement, arrangement or understanding (whether or 
not in writing) to act together for the purpose of acquiring, 
voting, holding or disposing of shares of the stock of NYSE Group; 
(iii) in the case of a person that is a company, corporation or 
similar entity, any executive officer (as defined under Rule 3b-7 
under the Act) or director of such person and, in the case of a 
person that is a partnership or a limited liability company, any 
general partner, managing member or manager of such person, as 
applicable; (iv) in the case of a person that is a ``member 
organization'' (as defined in the rules of New York Stock Exchange 
LLC, as such rules may be in effect from time to time), any 
``member'' (as defined in the rules of New York Stock Exchange LLC, 
as such rules may be in effect from time to time) that is associated 
with such person (as determined using the definition of ``person 
associated with a member'' as defined under section 3(a)(21) of the 
Act); (v) in the case of a person that is an OTP Firm, any OTP 
Holder that is associated with such person (as determined using the 
definition of ``person associated with a member'' as defined under 
section 3(a)(21) of the Act); (vi) in the case of a person that is a 
natural person, any relative or spouse of such natural person, or 
any relative of such spouse who has the same home as such natural 
person or who is a director or officer of NYSE Group or any of its 
parents or subsidiaries; (vii) in the case of a person that is an 
executive officer (as defined under Rule 3b-7 under the Act), or a 
director of a company, corporation or similar entity, such company, 
corporation or entity, as applicable; (viii) in the case of a person 
that is a general partner, managing member or manager of a 
partnership or limited liability company, such partnership or 
limited liability company, as applicable; (ix) in the case of a 
person that is a ``member'' (as defined in the rules of New York 
Stock Exchange LLC, as such rules may be in effect from time to 
time), the ``member organization'' (as defined in the rules of New 
York Stock Exchange LLC, as such rules may be in effect from time to 
time) with which such Person is associated (as determined using the 
definition of ``person associated with a member'' as defined under 
section 3(a)(21) of the Act); and (x) in the case of a person that 
is an OTP Holder, the OTP Firm with which such person is associated 
(as determined using the definition of ``person associated with a 
member'' as defined under section 3(a)(21) of the Act). See proposed 
NYSE Group Certificate of Incorporation, Article V, section 1(E).
    \13\ See proposed NYSE Group Certificate of Incorporation, 
Article V, section 1(A).
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    In addition, under the proposed NYSE Group Certificate of 
Incorporation, no person (either alone or together with its related 
persons) may at any time beneficially own shares of stock of NYSE Group 
representing in the aggregate more than 20% of the then outstanding 
votes entitled to be cast on any matter.\14\
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    \14\ See proposed NYSE Group Certificate of Incorporation, 
Article V, section 2(A).
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    In the event that a person, either alone or together with its 
related persons, beneficially owns shares of stock of NYSE Group in 
excess of the 20% threshold, such person and its related persons will 
be obligated to sell promptly, and NYSE Group will be obligated to 
purchase promptly, at a price equal to the par value of such shares of 
stock and to the extent that funds are legally available for such 
purchase, that number of shares necessary to reduce the ownership level 
of such person and its related persons to below the permitted 
threshold, after taking into account that such repurchased shares will 
become treasury shares and will no longer be deemed to be outstanding.
    The NYSE Group board of directors will have the right to waive the 
provisions regarding voting and ownership limits applicable to any 
person by a resolution expressly permitting this voting or ownership 
(which resolution must be filed with and approved by the Commission 
under section 19 of the Act), subject to a determination by the NYSE 
Group board of directors that:
     The exercise of such voting rights or ownership, as 
applicable, will not impair the ability of either NYSE Group or any of 
New York Stock Exchange LLC, NYSE Market, NYSE Regulation, Archipelago 
Exchange, L.L.C. (``ArcaEx''), Pacific Exchange or PCX Equities, Inc. 
(``PCX Equities'') (each, a ``Regulated Subsidiary'' and together, the 
``Regulated Subsidiaries'') to discharge their respective 
responsibilities under the Act and the rules and regulations thereunder 
and is otherwise in the best interests of NYSE Group, its stockholders 
and the Regulated Subsidiaries; and
     The exercise of such voting rights or ownership, as 
applicable, will not impair the Commission's ability to enforce the 
Act.\15\
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    \15\ See proposed NYSE Group Certificate of Incorporation, 
Article V, sections 1(A) and 2(C).
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    In making these determinations, the NYSE Group board of directors 
may impose conditions and restrictions on the relevant stockholder or 
its related persons that it deems necessary, appropriate or desirable 
in furtherance of the objectives of the Act and its governance. Any 
such waiver would be tantamount to a proposed rule change subject to 
approval by the Commission. However, the NYSE Group board of directors 
may not waive the voting and ownership limits above the 20% threshold 
for any person if such person or its related persons is:
     For so long as NYSE Group directly or indirectly controls 
the New York Stock Exchange LLC or NYSE Market, a ``member'' or 
``member organization'' (as defined in the rules of New York Stock 
Exchange LLC, as such rules may be in effect from time to time);
     For so long as NYSE Group directly or indirectly controls 
the Pacific Exchange, PCX Equities or any facility of the Pacific 
Exchange, an ETP Holder (as defined in the PCX Equities rules of the 
Pacific Exchange), an OTP Holder or an OTP Firm (each as defined in the 
rules of Pacific Exchange); or
     Subject to any statutory disqualification (as defined in 
section 3(a)(39) of the Act).
    The proposed NYSE Group Certificate of Incorporation will also 
require any stockholder that the NYSE Group board of directors 
reasonably believes to be subject to the voting or ownership 
restrictions summarized above, and any person (either alone or together 
with its related persons) that at any time beneficially owns 5% or more 
of NYSE Group's outstanding capital stock (which ownership has not been 
reported to NYSE Group), to provide to NYSE Group, upon the request of 
the NYSE Group board of directors, complete information as to all 
shares of capital stock of NYSE Group beneficially owned by such person 
and its related persons, and any other factual matters relating to the 
applicability or effect of the voting and ownership limitations 
outlined above as may be reasonably requested of such person and its 
related persons.\16\
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    \16\ See proposed NYSE Group Certificate of Incorporation, 
Article V, section 4.
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Protection of Self-Regulatory Functions and Oversight

    The proposed NYSE Group Certificate of Incorporation will contain 
several other provisions designed to protect the independence of the 
self-regulatory function of the Regulated Subsidiaries.
    The proposed NYSE Group Certificate of Incorporation requires that, 
in discharging his or her responsibilities as a member of the board, 
each director of NYSE Group must, to the fullest extent permitted by 
applicable law, take into consideration the effect that NYSE Group's 
actions would have on the ability of the Regulated Subsidiaries to 
carry out their responsibilities under the Act and on the ability of 
the Regulated Subsidiaries and NYSE Group:
     To engage in conduct that fosters and does not interfere 
with the Regulated Subsidiaries' and NYSE Group's ability to prevent 
fraudulent and manipulative acts and practices in the securities 
markets;
     To promote just and equitable principles of trade in the 
securities markets;
     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 mechanisms of a 
free and open market in securities and a national securities market 
system; and
     In general, to protect investors and the public 
interest.\17\
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    \17\ See proposed NYSE Group Certificate of Incorporation, 
Article VI, section 8.
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    The proposed NYSE Group Certificate of Incorporation provides that, 
to the fullest extent permitted by applicable law, all confidential 
information pertaining to the self-regulatory function of the New York 
Stock Exchange LLC, NYSE Market, NYSE Regulation, Pacific Exchange and 
PCX Equities (including but not limited to disciplinary matters, 
trading data, trading practices and audit information) contained in the 
books and records of any of the Regulated Subsidiaries that shall come 
into the possession of NYSE Group shall:
     Not be made available to any persons other than to those 
officers, directors, employees and agents of NYSE Group that have a 
reasonable need to know the contents thereof;
     Be retained in confidence by NYSE Group and its officers, 
directors, employees and agents; and

[[Page 2084]]

     Not be used for any commercial purposes.\18\
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    \18\ See proposed NYSE Group Certificate of Incorporation, 
Article XI.
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    Notwithstanding the foregoing, nothing in the NYSE Group 
Certificate of Incorporation shall be interpreted so as to limit or 
impede the rights of the Commission or any of the Regulated 
Subsidiaries to access and examine such confidential information 
pursuant to the Federal securities laws and the rules and regulations 
thereunder, or to limit or impede the ability of any officers, 
directors, employees or agents of NYSE Group to disclose such 
confidential information to the Commission or the Regulated 
Subsidiaries.\19\ NYSE Group's books and records shall be subject at 
all times to inspection and copying by (a) the Commission and (b) any 
Regulated Subsidiary; provided that, in the case of (b), such books and 
records are related to the operation or administration of such 
Regulated Subsidiary or any other Regulated Subsidiary over which such 
Regulated Subsidiary has regulatory authority or oversight. NYSE 
Group's books and records related to Regulated Subsidiaries shall be 
maintained within the United States. In addition, for so long as NYSE 
Group directly or indirectly controls any Regulated Subsidiary, the 
books, records, premises, officers, directors and employees of NYSE 
Group shall be deemed to be the books, records, premises, officers, 
directors and employees of the Regulated Subsidiaries for purposes of 
and subject to oversight pursuant to the Act.\20\
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    \19\ See proposed NYSE Group Certificate of Incorporation, 
Article XI.
    \20\ See proposed NYSE Group Certificate of Incorporation, 
Article XI.
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    The proposed NYSE Group Certificate of Incorporation provides that 
NYSE Group shall comply with the Federal securities laws and the rules 
and regulations thereunder and shall cooperate with the Commission and 
the Regulated Subsidiaries pursuant to and to the extent of their 
respective regulatory authority, and shall take reasonable steps 
necessary to cause its agents to cooperate with the Commission and, 
where applicable, the Regulated Subsidiaries pursuant to their 
regulatory authority.\21\
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    \21\ See proposed NYSE Group Certificate of Incorporation, 
Article XII.
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    The proposed NYSE Group Certificate of Incorporation also provides 
that NYSE Group, its directors and officers, and those of its employees 
whose principal place of business and residence is outside of the 
United States shall 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 
Regulated Subsidiaries (and shall 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). Further, NYSE Group, as well as each such 
director, officer or employee by virtue of acceptance of such position, 
shall 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 such courts or agency.\22\ Moreover, the proposed NYSE Group 
Certificate of Incorporation provides that each director, officer and 
employee of NYSE Group, in discharging his or her responsibilities in 
such capacity, shall (1) comply with the Federal securities laws and 
the rules and regulations thereunder, (2) cooperate with the 
Commission, and (3) cooperate with the Regulated Subsidiaries pursuant 
to their regulatory authority.\23\
---------------------------------------------------------------------------

    \22\ See proposed NYSE Group Certificate of Incorporation, 
Article X.
    \23\ See proposed NYSE Group Certificate of Incorporation, 
Article VI, section 8.
---------------------------------------------------------------------------

    The proposed NYSE Group Certificate of Incorporation provides that, 
for so long as NYSE Group shall control, directly or indirectly, any of 
the Regulated Subsidiaries, before any amendment to the NYSE Group 
Certificate of Incorporation shall be effective, such amendment shall 
be submitted to the boards of directors of the New York Stock Exchange 
LLC, NYSE Market, NYSE Regulation, Pacific Exchange and PCX Equities, 
and if any or all of such boards of directors determines that the 
amendment must be filed with or filed with and approved by the 
Commission under section 19 of the Act, then such amendment shall not 
be effectuated until filed with or filed with and approved by the 
Commission.\24\
---------------------------------------------------------------------------

    \24\ See proposed NYSE Group Certificate of Incorporation, 
Article XIII.
---------------------------------------------------------------------------

    In addition, the proposed Certificate of Incorporation of NYSE 
Group provides that NYSE Group, its directors, officers and employees 
shall give due regard to the preservation of the independence of the 
self-regulatory function of the Regulated Subsidiaries (to the extent 
of each Regulated Subsidiary's self-regulatory function) and to 
obligations to investors and the general public and shall not take any 
actions that would interfere with the effectuation of any decisions by 
the board of directors or managers of the Regulated Subsidiaries 
relating to their regulatory functions (including disciplinary matters) 
or that would interfere with the ability of the Regulated Subsidiaries 
to carry out their respective responsibilities under the Act.\25\
---------------------------------------------------------------------------

    \25\ See proposed NYSE Group Certificate of Incorporation, 
Article XII.
---------------------------------------------------------------------------

    Under the proposed NYSE Group Certificate of Incorporation, NYSE 
Group shall 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 NYSE Group to consent in 
writing to the applicability to them of certain of these provisions 
with respect to their activities related to any Regulated 
Subsidiary.\26\
---------------------------------------------------------------------------

    \26\ See proposed NYSE Group Certificate of Incorporation, 
Article XII.
---------------------------------------------------------------------------

    The NYSE does not currently, nor after the Merger will it, own or 
control any of its member organizations. To the extent that a member 
organization is the owner of NYSE Group common stock, the ownership 
limitations described above are intended to deal with the issues that 
might otherwise be presented. However, the NYSE understands that the 
Commission is also concerned about potential unfair competition and 
conflicts of interest between an exchange's self-regulatory obligations 
and its commercial interests that could exist if an exchange were to 
become affiliated with one of its members, as well as the potential for 
unfair competitive advantage that the affiliated member could have by 
virtue of informational or operational advantages, or the ability to 
receive preferential treatment.\27\ The NYSE acknowledges that 
ownership of, or a control relationship with, a member organization by 
NYSE Group or any of its subsidiaries would necessitate that the 
foregoing concerns be first addressed with, and to the satisfaction of, 
the Commission.\28\
---------------------------------------------------------------------------

    \27\ See Securities Exchange Act Release No. 52497 (September 
22, 2005), 70 FR 56949 (September 29, 2005).
    \28\ See proposed Rule 2B. The Exchange notes that the 
Commission has specifically approved the ownership and operation of 
the outbound router function of Archipelago Securities by 
Archipelago, subject to the conditions specified in Securities 
Exchange Act Release No. 52497. See supra note 27.

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[[Page 2085]]

New York Stock Exchange LLC

    As proposed, after the Merger, New York Stock Exchange LLC will 
succeed to the registration of the NYSE as a national securities 
exchange under the Act. It will be a direct, wholly owned subsidiary of 
NYSE Group and the parent company of NYSE Market and NYSE Regulation. 
It will not hold any material assets other than the equity interests in 
NYSE Market and NYSE Regulation. Pursuant to the proposed delegation 
agreement by and among New York Stock Exchange LLC, NYSE Market and 
NYSE Regulation (``NYSE Delegation Agreement'') (described below), the 
market functions of New York Stock Exchange LLC will be delegated to 
NYSE Market and the regulatory functions of New York Stock Exchange LLC 
will be delegated to NYSE Regulation.\29\
---------------------------------------------------------------------------

    \29\ NYSE Market's responsibilities include the operation of 
Market Watch, a unit whose functions include, among others, 
coordination with listed companies, floor officials, and regulatory 
staff of NYSE Regulation with respect to dissemination of news and 
trading halts. This unit is distinguished from the Stock Watch unit 
within NYSE Regulation, whose functions include review of exception 
reports, alerts and investigations. NYSE Market will establish the 
principles and policies under which trading on NYSE Market will be 
conducted, and those principles and policies will be codified by 
NYSE Regulation in the rules of New York Stock Exchange LLC. In 
addition, NYSE Market will be responsible for referring to NYSE 
Regulation, for investigation and action as appropriate, any 
possible rule violations that come to its attention.
---------------------------------------------------------------------------

New York Stock Exchange LLC Board of Directors

    The New York Stock Exchange LLC board of directors will consist of 
a number of directors as determined by NYSE Group, as the sole equity 
owner, from time to time; provided that (1) all of the independent 
directors of the NYSE Group (``NYSE Group Independent Directors'') 
shall be directors of New York Stock Exchange LLC, and (2) at least 
twenty percent (20%), and not less than two, of the directors of New 
York Stock Exchange LLC will be persons who are not NYSE Group 
directors,\30\ but who otherwise qualify as independent under the 
independence policy of the NYSE Group board of directors (``Non-
Affiliated LLC Directors'').
---------------------------------------------------------------------------

    \30\ At the request of the Exchange, the Commission staff 
replaced ``directors'' with ``persons'' to match the language in the 
proposed Operating Agreement of New York Stock Exchange LLC. 
December 14 Telephone Conversation.
---------------------------------------------------------------------------

Committees of New York Stock Exchange LLC Board of Directors

    The board of directors of New York Stock Exchange LLC is not 
expected to have its own committees. Rather, it is expected that any 
necessary functions with respect to audit, compensation, nomination and 
governance will be performed by the relevant committees of the NYSE 
Group board of directors.

Appointment of Non-Affiliated LLC Directors

    NYSE Group, as the sole equity owner of New York Stock Exchange 
LLC, shall appoint or elect as the Non-Affiliated LLC Directors the 
candidates nominated by the nominating and governance committee of the 
NYSE Group board of directors (such candidates, ``Non-Affiliated LLC 
Director Candidates'').
    The nominating and governance committee of the NYSE Group board of 
directors shall be obligated to designate as Non-Affiliated LLC 
Director Candidates those Fair Representation Candidates (as 
hereinafter defined) who are recommended jointly by the director 
candidate recommendation committee of NYSE Market (which committee is 
described below) and the director candidate recommendation committee of 
NYSE Regulation (which committee is described below), including those 
who emerge from the petition process of New York Stock Exchange 
members, all as described below under ``Fair Representation of 
Members.''

New York Stock Exchange LLC Management

    The officers of New York Stock Exchange LLC will be appointed by 
the New York Stock Exchange LLC board of directors as it deems 
appropriate.

NYSE Market, Inc.

    NYSE Market will be a wholly owned subsidiary of New York Stock 
Exchange LLC. NYSE Market will hold all of NYSE's current assets and 
liabilities other than the registration as a national securities 
exchange and other than the assets and liabilities relating to the 
regulatory functions currently conducted by the NYSE, which will be 
held by NYSE Regulation. After the Merger, NYSE Market will conduct the 
exchange business that is currently conducted by the NYSE pursuant to 
the NYSE Delegation Agreement (described below), including the issuance 
of licenses to trade on NYSE Market (``Trading Licenses''), which such 
Trading Licenses are described in greater detail below.

NYSE Market Board of Directors

    The NYSE Market board of directors will consist of a number of 
directors as determined from time to time by New York Stock Exchange 
LLC (as the sole stockholder of NYSE Market); provided that: (1) The 
chief executive officer of NYSE Group will be a director of NYSE 
Market; (2) a majority of the directors of NYSE Market will be NYSE 
Group Independent Directors; and (3) at least twenty percent (20%), and 
not less than two, of the NYSE Market directors will be persons \31\ 
who are not NYSE Group directors (``Non-Affiliated Market 
Directors'').\32\ The Non-Affiliated Market Directors need not be 
independent, and must meet any status or constituent affiliation 
qualifications prescribed by NYSE Market rule or policy filed with the 
Commission.
---------------------------------------------------------------------------

    \31\ At the request of the Exchange, the Commission staff 
replaced ``directors'' with ``persons'' to match the language in the 
proposed Bylaws of NYSE Market. December 14 Telephone Conversation.
    \32\ Note that the reference to ``at least 20%, and not less 
than two'' is keyed into the requirements outlined in the ``Fair 
Representation of Members'' section below. There may in fact be more 
Non-Affiliated Market Directors, but they would not be subject to 
the selection, recommendation and petition procedures described in 
the ``Fair Representation of Members'' section.
---------------------------------------------------------------------------

Committees of NYSE Market Board of Directors

    The NYSE Market board of directors may create one or more 
committees comprised of NYSE Market directors. It is expected that the 
committees of the NYSE Group board of directors will perform the board 
committee functions relating to audit, governance and compensation. The 
NYSE Market board of directors may also create committees comprised in 
whole or in part of individuals who are not directors.
    Upon completion of the Merger, the NYSE Market board of directors 
will establish one or more advisory committees. The advisory committees 
will facilitate communication and provide input to the board of 
directors, management, and staff of NYSE Market and its affiliated 
entities on policies, programs, products and services to further 
strengthen the ability of NYSE Market and its affiliated entities to 
better serve their customers.
    In addition, a Market Performance Committee and an Allocation 
Committee will be created by the board of directors of NYSE Market 
containing representatives of member organizations. These committees 
will have responsibilities specified in certain Exchange rules (see, 
for example, proposed NYSE Rule 20(b) and NYSE Rules 103A and 103B).
    On an annual basis, the NYSE Market board of directors will appoint 
a director candidate recommendation committee (``NYSE Market DCRC'') 
comprised of representatives of upstairs firms, specialists and floor 
brokers. The NYSE Market DCRC will be responsible for recommending to 
the nominating and governance committee of the NYSE

[[Page 2086]]

Group board of directors Fair Representation Candidates for the Non-
Affiliated Market Directors.

Appointment of Non-Affiliated Market Directors

    New York Stock Exchange LLC, as the sole stockholder of NYSE 
Market, will appoint or elect as the Non-Affiliated Market Directors 
the candidates nominated by the nominating and governance committee of 
the NYSE Group board of directors (such candidates, ``Non-Affiliated 
Market Director Candidates'').
    The nominating and governance committee of the NYSE Group board of 
directors shall be obligated to designate as Non-Affiliated Market 
Director Candidates those Fair Representation Candidates who are 
recommended by the NYSE Market DCRC, including those who emerge from 
the petition process of New York Stock Exchange members, all as 
described below under ``Fair Representation of Members.''

NYSE Market Management

    The officers of NYSE Market will manage the business and affairs of 
NYSE Market, subject to the oversight of the NYSE Market board of 
directors, and except as discussed below in relation to NYSE 
Regulation. The chief executive officer of NYSE Group will serve as the 
chief executive officer of NYSE Market and will also serve as a 
director of NYSE Market.

NYSE Regulation, Inc.

    As noted above, New York Stock Exchange LLC will be the sole voting 
equity holder of NYSE Regulation. NYSE Regulation will hold all of the 
assets and liabilities held by the NYSE prior to the Merger related to 
the regulatory functions conducted by the NYSE prior to the Merger. 
After the Merger, NYSE Regulation will be responsible for the 
regulatory functions of New York Stock Exchange LLC pursuant to the 
NYSE Delegation Agreement (described below), as well as many of the 
regulatory functions of the Pacific Exchange pursuant to the Pacific 
Exchange Regulatory Services Agreement.

NYSE Regulation Board of Directors

    The NYSE Regulation board of directors will consist of a number of 
directors as determined from time to time by New York Stock Exchange 
LLC (as the sole equity holder of NYSE Regulation); provided that: (1) 
The chief executive officer of NYSE Regulation will be a director of 
NYSE Regulation; (2) a majority of the NYSE Regulation directors will 
be NYSE Group Independent Directors; and (3) at least twenty percent 
(20%), and not less than two, of the NYSE Regulation directors will be 
persons \33\ who are not NYSE Group directors, but who otherwise 
qualify as independent under the independence policy of the NYSE Group 
board of directors (``Non-Affiliated Regulation Directors'').\34\
---------------------------------------------------------------------------

    \33\ At the request of the Exchange, the Commission staff 
replaced ``directors'' with ``persons'' to match the language in the 
proposed Bylaws of NYSE Regulation. December 14 Telephone 
Conversation.
    \34\ Note that the reference to ``at least 20%, and not less 
than two'' is keyed into the requirements outlined in the ``Fair 
Representation of Members'' section below. There may in fact be more 
Non-Affiliated Regulation Directors, but they would not be subject 
to the selection, recommendation and petition procedures described 
in the ``Fair Representation of Members'' section.
---------------------------------------------------------------------------

Committees of the NYSE Regulation Board of Directors

    The NYSE Regulation board of directors may create one or more 
committees comprised of NYSE Regulation directors. It will create a 
nominating and governance committee, which will be comprised of a 
majority of NYSE Group Independent Directors and at least two Non-
Affiliated Regulation Directors. It is expected that the committees of 
the NYSE Group board of directors will perform the board committee 
functions relating to audit and compensation. With due regard to the 
independence of NYSE Regulation, compensation for NYSE Regulation will 
be determined in consultation with the NYSE Regulation directors. This 
is similar to the interplay between the compensation committee and the 
regulatory oversight committee of the NYSE that exists today.
    The NYSE Regulation board of directors may also create committees 
comprised in whole or in part of individuals who are not directors. For 
example, the NYSE Regulation board of directors will appoint a 
Committee for Review that will, among other things, review disciplinary 
decisions on behalf of the NYSE Regulation board of directors. This 
committee will be comprised of both directors of NYSE Regulation that 
satisfy the independence requirements for directors of NYSE Regulation, 
as well as persons who are not directors; provided, however, that a 
majority of the members of the committee voting on a matter subject to 
a vote of the committee will be directors of NYSE Regulation. Among the 
persons on the committee who are not directors, there will be included 
representatives of each of (a) upstairs firms, (b) specialists, and (c) 
floor brokers. The Exchange Rules are proposed to be amended to reflect 
the ability of such committee members and Executive Floor Governors 
\35\ to require review by the board of New York Stock Exchange LLC of 
disciplinary decisions pursuant to NYSE Rules 476 and 476A, 
acceptability committee decisions pursuant to NYSE Rule 308, and 
decisions resulting from summary proceedings pursuant to NYSE Rule 475.
---------------------------------------------------------------------------

    \35\ See proposed NYSE Rule 46A.
---------------------------------------------------------------------------

    In addition, a regulatory advisory committee will be created by the 
NYSE Regulation board of directors and will include representatives of 
member organizations. This committee will have responsibilities 
specified in proposed NYSE Rule 20(b).
    Upon completion of the Merger, the NYSE Regulation board of 
directors is expected to establish one or more additional advisory 
committees. The advisory committees will facilitate communication and 
provide input to the board of directors, management, and staff of NYSE 
Regulation and its affiliated entities on policies, programs, 
regulatory aspects of products and services to further strengthen the 
ability of NYSE Regulation and its affiliated entities to better serve 
its regulatory responsibilities.
    On an annual basis, the NYSE Regulation board of directors will 
appoint a director candidate recommendation committee (``NYSE 
Regulation DCRC'') comprised of representatives of each of (a) upstairs 
firms, (b) specialists, and (c) floor brokers. The NYSE Regulation DCRC 
will be responsible for recommending to the nominating and governance 
committee of the NYSE Regulation board of directors Fair Representation 
Candidates for the Non-Affiliated Regulation Directors.

Appointment of Non-Affiliated Regulation Directors

    New York Stock Exchange LLC, as the sole equity owner of NYSE 
Regulation, will appoint or elect as the Non-Affiliated Regulation 
Directors the candidates nominated by the nominating and governance 
committee of NYSE Regulation (such candidates, ``Non-Affiliated 
Regulation Director Candidates'').
    The nominating and governance committee of NYSE Regulation shall be 
obligated to designate as Non-Affiliated Regulation Director Candidates 
those Fair Representation Candidates who are recommended by the NYSE 
Regulation DCRC, including those who emerge from the petition process 
of New York Stock Exchange members, all as

[[Page 2087]]

described below under ``Fair Representation of Members.''

NYSE Regulation Management

    The officers of NYSE Regulation will manage the affairs of NYSE 
Regulation, subject to the oversight of the NYSE Regulation board of 
directors. The chief executive officer of NYSE Regulation will attend 
as appropriate meetings of the board of directors of NYSE Group and its 
subsidiaries, and also will not be prohibited from meeting with 
management of NYSE Group and its subsidiaries. However, he or she will 
not be an officer or employee of any affiliated entity other than NYSE 
Regulation and will report solely to the NYSE Regulation board of 
directors.

Archipelago Holdings, Inc.

    Through the Merger, Archipelago will become a wholly owned 
subsidiary of NYSE Group. The governing documents of Archipelago will 
remain unchanged other than amendments required to permit NYSE Group to 
own all of the outstanding shares of Archipelago. These amendments will 
be proposed in a separate application on Form 19b-4 to be filed by the 
Pacific Exchange.

PCX Holdings, Inc.

    PCX Holdings will remain a wholly owned subsidiary of Archipelago 
after the Merger, and the Proposed Rule Change will not affect its 
governing documents or operations.

Pacific Exchange, Inc. and PCX Equities, Inc.

    The Pacific Exchange will remain a wholly owned subsidiary of PCX 
Holdings and will maintain its status as a registered national 
securities exchange and an SRO. Its operations will remain unchanged 
except with regard to its regulatory responsibilities, many of which 
will be performed by NYSE Regulation after the Merger.
    PCX Equities will remain a wholly owned subsidiary of the Pacific 
Exchange. Its operations will remain unchanged except with regard to 
its regulatory responsibilities, many of which will be performed by 
NYSE Regulation after the Merger.

New York Stock Exchange Membership

    After the Merger, there will continue to be ``members'' and 
``member organizations'' of the New York Stock Exchange. Such members 
or member organizations (and new applicants), however, will not, by 
virtue of their membership, be equity owners of NYSE Group or any of 
its subsidiaries. Instead, after the Merger, such members and member 
organizations will be comprised of: (1) Organizations that obtain 
Trading Licenses in accordance with the rules of New York Stock 
Exchange LLC (including the rules of eligibility that will apply to 
those who wish to be a member or member organization); and (2) broker-
dealers that agree to submit to the jurisdiction and rules of New York 
Stock Exchange LLC, without obtaining a Trading License and thus 
without having rights to directly access the trading facilities of NYSE 
Market.\36\ After the Merger, NYSE Market may decide to issue separate 
licenses for electronic-only access or access limited to particular 
products. Such decisions would be implemented only following any 
required rule changes filed with and approved by the Commission.
---------------------------------------------------------------------------

    \36\ Proposed NYSE Rule 2(a) defines the term ``member,'' when 
used to denote a natural person approved by the Exchange, as meaning 
a natural person associated with a member organization who has been 
approved by the Exchange and designated by such member organization 
to effect transactions on the floor of the Exchange or any facility 
thereof.
---------------------------------------------------------------------------

Fair Representation of Members

    To ensure fair representation of New York Stock Exchange members in 
the selection of directors and the administration of the affairs of New 
York Stock Exchange LLC after the Mergers,\37\ twenty percent (20%), 
and not less than two, of the directors on the boards of directors of 
each of New York Stock Exchange LLC, NYSE Market and NYSE Regulation 
will be persons who are not NYSE Group directors, and will be chosen 
solely from candidates (referred to herein as ``Fair Representation 
Candidates'') who are recommended by the NYSE Market DCRC and/or NYSE 
Regulation DCRC, as applicable, including those who may emerge from the 
petition process described below in this section, to fill positions as 
non-affiliated directors on the boards of New York Stock Exchange LLC, 
NYSE Market and NYSE Regulation, respectively.
---------------------------------------------------------------------------

    \37\ See section 6(b)(3) of the Act. In nominating candidates 
that will serve on the boards of New York Stock Exchange LLC, NYSE 
Market and NYSE Regulation, the nominating and governance committees 
of NYSE Group and NYSE Regulation respectively will include at least 
one person intended to allow each such board to meet the 
requirements of section 6(b)(3) of the Act concerning issuers and at 
least one person intended to allow each such board to meet the 
requirements of section 6(b)(3) of the Act concerning investors. At 
the request of the Exchange, the Commission staff modified the 
language of this footnote to clarify its meaning. December 14 
Telephone Conversation.
---------------------------------------------------------------------------

    New York Stock Exchange LLC members will also have the right to 
propose Fair Representation Candidates by petition. The petition 
process will work as follows:
    Candidates put forward by the NYSE Market DCRC and/or NYSE 
Regulation DCRC, as applicable, to be Fair Representation Candidates 
will be announced to the member organizations of New York Stock 
Exchange on a date in each year (``Announcement Date'') sufficient to 
accommodate the process for the proposal of alternate nominees by 
petition. Following the Announcement Date, and subject to the 
limitations described below, a person shall be a petition candidate if 
a properly completed petition shall be completed and such person shall 
be endorsed by a number of votes equal to at least ten percent (10%) of 
the votes eligible to be cast for such candidate as described below. 
For purposes of determining whether a person has been endorsed by the 
requisite ten percent (10%) of votes to be a petition candidate, the 
votes eligible to be cast shall be as follows:
     For purposes of a candidate for the New York Stock 
Exchange LLC board of directors or the NYSE Regulation board of 
directors, each member organization in good standing shall be entitled 
to one vote for each trading license owned by it, and each member 
organization in good standing that does not own a trading license shall 
be entitled to one vote;
     For purposes of a candidate for the NYSE Market board of 
directors, each member organization in good standing shall be entitled 
to one vote for each trading license owned by it (and member 
organizations that do not own a trading license shall not be entitled 
to vote);

provided, however, that, in each case, no member organization, either 
alone or together with its affiliates (as defined under Rule 12b-2 
under the Act), may account for more than fifty percent (50%) of the 
votes endorsing a particular petition candidate, and any votes cast by 
such member organization, either alone or together with its affiliates, 
in excess of such fifty percent (50%) limitation shall be disregarded.
    Each petition must include for each potential Fair Representation 
Candidate a completed questionnaire used to gather information 
concerning non-affiliated director candidates for the relevant entity 
(the form of questionnaire will be provided upon the request of any 
member organization). The petitions must be filed within two weeks 
after the Announcement Date. The nominating and governance committee of 
the NYSE Group board of directors (with respect to candidates for New 
York Stock Exchange LLC and NYSE Market), and the nominating and

[[Page 2088]]

governance committee of the NYSE Regulation board of directors (with 
respect to NYSE Regulation) will determine whether the persons proposed 
by petition are eligible for election to the position for which they 
are to be nominated, and such determinations will be final and 
conclusive. Those to be nominated for the New York Stock Exchange LLC 
or NYSE Regulation board of directors must qualify as independent under 
the independence policy of the NYSE Group board of directors. Those to 
be nominated for a position on the NYSE Market board must meet any 
applicable constituent status qualifications that have been prescribed 
for such directors by rule or policy filed with the Commission. All 
nominees must be free of any statutory disqualification (as defined in 
section 3(a)(39) of the Act).
    If the sum of the number of candidates recommended by the NYSE 
Market DCRC and/or the NYSE Regulation DCRC, as applicable, and the 
number of petition candidates exceeds the number of available Fair 
Representation Candidate positions for New York Stock Exchange LLC, 
NYSE Market or NYSE Regulation, as applicable, all such candidates 
shall be submitted to the member organizations for a vote. The 
candidates receiving the highest number of votes for the available Fair 
Representation Candidate positions shall be the Fair Representation 
Candidates recommended to the nominating and governance committee of 
the board of directors of NYSE Group or NYSE Regulation, as applicable. 
The member organizations will be afforded a confidential voting 
procedure and will be given no less than 20 business days to submit 
their votes. For purposes of determining which candidates received the 
highest number of votes and therefore should be the Fair Representation 
Candidates recommended to the applicable nominating and governance 
committee, the votes eligible to be cast shall be as follows:
     For purposes of a candidate for the New York Stock 
Exchange LLC board of directors or the NYSE Regulation board of 
directors, each member organization in good standing shall be entitled 
to one vote for each trading license owned by it, and each member 
organization in good standing that does not own a trading license shall 
be entitled to one vote;
     For purposes of a candidate for the NYSE Market board of 
directors, each member organization in good standing shall be entitled 
to one vote for each trading license owned by it (and member 
organizations that do not own a trading license shall not be entitled 
to vote);

provided, however, that, in each case, no member organization, either 
alone or together with its affiliates, may account for more than twenty 
percent (20%) of the votes endorsing a particular petition candidate, 
and any votes cast by such member organization, either alone or 
together with its affiliates, in excess of such twenty percent (20%) 
limitation shall be disregarded.

Listing of NYSE Group Common Stock on NYSE Market

Initial Listing

    NYSE Group intends to list its shares of common stock for trading 
on New York Stock Exchange LLC. Pursuant to proposed NYSE Rule 497(b), 
any security of NYSE Group or its affiliates shall not be approved for 
listing on New York Stock Exchange LLC unless NYSE Regulation finds 
that such securities satisfy New York Stock Exchange LLC's rules for 
listing, and such finding is approved by the NYSE Regulation board of 
directors. As proposed NYSE Rule 497 will not be in effect, the Merger 
will not have closed and the NYSE Regulation board of directors will 
not have been constituted as contemplated herein prior to the time by 
which the initial listing of the NYSE Group common stock must be 
approved, that listing will be reviewed by the regulatory staff of NYSE 
and approved by the Regulatory Oversight Committee of the current board 
of directors of NYSE, as the most logical predecessor to the NYSE 
Regulation board.\38\
---------------------------------------------------------------------------

    \38\ This process is not included in the text of proposed NYSE 
Rule 497. The Exchange has represented that it will amend proposed 
NYSE Rule 497 to include this procedure prior to any Commission 
approval of the Proposed Rule Change. December 14 Telephone 
Conversation.
---------------------------------------------------------------------------

Continued Listing and Trading

    NYSE Regulation will be responsible for all listing compliance 
decisions with respect to NYSE Group as an issuer. NYSE Regulation will 
prepare a quarterly report summarizing its monitoring of NYSE Group 
common stock's compliance with listing standards and trading rules as 
described in proposed NYSE Rule 497(c).\39\ 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 NYSE Group's compliance with the listing 
standards and a copy of its report will be forwarded promptly to the 
Commission. If NYSE Regulation determines that NYSE Group common stock 
is not in compliance with any applicable listing standard, NYSE 
Regulation shall notify NYSE Group promptly and request a plan for 
compliance. Within five business days \40\ of providing such notice to 
NYSE Group, NYSE Regulation shall file a report with the Commission 
identifying the date on which NYSE Group common stock was not in 
compliance with the listing standard at issue and any other material 
information conveyed to NYSE Group 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.
---------------------------------------------------------------------------

    \39\ At the request of the Exchange, the Commission staff edited 
this statement to match the language in proposed NYSE Rule 497. 
December 14 Telephone Conversation.
    \40\ Proposed NYSE Rule 497 provides for a period of five days. 
The Exchange has represented that it plans to amend proposed NYSE 
Rule 497 to change ``five days'' to ``five business days.'' December 
14 Telephone Conversation.
---------------------------------------------------------------------------

Trading Licenses; Access to NYSE Market

    Following the Merger, NYSE Market will issue Trading Licenses to 
registered broker-dealers, subject to an annual fee to NYSE Market paid 
in monthly installments, and review and approval of the applicant by 
NYSE Regulation. Organizations holding Trading Licenses will be subject 
to rules applicable to member organizations, and except as otherwise 
noted herein, those rules will be substantively the same as the rules 
applicable to NYSE member organizations under the NYSE's current 
Constitution and Rules.\41\ Each Trading License will entitle its 
holder to have physical and electronic access to the trading facilities 
of NYSE Market, subject to such limitations and requirements as may be 
specified in the rules, and in each case will include the right to 
designate a natural person, subject to pre-approval by NYSE Regulation, 
who may have physical access to the floor and facilities of NYSE Market 
to trade thereon. The quantity and price of Trading Licenses issued 
shall be annually determined by a ``Dutch auction.''
---------------------------------------------------------------------------

    \41\ As noted above, the term ``member organization'' may also 
include any other registered broker-dealer that agrees to be 
regulated by NYSE Regulation, notwithstanding that it does not hold 
a Trading License and thus does not have direct access to the 
trading facilities of NYSE Market.
---------------------------------------------------------------------------

    The clearing price at which all Trading Licenses will be sold in 
the

[[Page 2089]]

auction will be determined under procedures calculated to provide 
suitable revenue to NYSE Market while providing fair access to its 
facilities to member organizations that wish to do business there. For 
each auction NYSE Market will determine the minimum price that a bidder 
will be required to pay for each Trading License (``Minimum Bid 
Price''), which will be no greater than 80% of the clearing price at 
the last annual auction, or for the first auction, 80% of the average 
annual lease price for leases commenced during a recent six month 
period.\42\ Unpriced ``at the market'' bids will also be permitted. At 
the end of the auction, NYSE Market will select as the purchase price 
for each Trading License the highest bid price that will allow it to 
sell the number of Trading Licenses that will maximize auction revenue 
to NYSE Market (referred to as a clearing price), provided that (i) the 
clearing price shall not be greater than the price that will result in 
the sale in the auction of at least 1000 Trading Licenses, (ii) NYSE 
Market will not sell in the auction more than 1366 Trading Licenses, 
and if the bids at the clearing price bring the total to more than 1366 
Trading Licenses, NYSE Market will sell at the clearing price to the 
unpriced ``at the market'' bids and higher priced bids, but will 
allocate trading licenses among the bids at the clearing price by lot, 
and (iii) NYSE Market at its discretion may sell the number of Trading 
Licenses determined by the clearing price at a price less than the 
clearing price but not lower than the Minimum Bid Price. However, if 
there are insufficient bids at the Minimum Bid Price (including 
unpriced at the market bids) to purchase at least 1000 Trading 
Licenses, NYSE Market may, although it need not, sell the largest 
number of Trading Licenses as can be sold at a price equal to the 
Minimum Bid Price, even though such number of Trading Licenses is less 
than 1000. In the alternative, under such circumstances NYSE Market may 
conduct another auction or auctions, setting a new Minimum Bid Price, 
which may be lower than that determined by the formula above, and in 
any such auction the clearing price will be determined as explained 
above, but without the requirement to sell at least 1000 trading 
licenses. In such case, NYSE Market will use its discretion to conclude 
an auction that will best serve the dual goals of raising adequate 
proceeds for NYSE Market while selling a number of Trading Licenses 
adequate to serve the needs of investors and the broker-dealer 
community.
---------------------------------------------------------------------------

    \42\ The first auction will also have a maximum price for bids, 
which will be 120% of the average annual lease price for leases 
commenced during such recent six month period. This is expected to 
ease the concerns of existing members given the potentially 
significant changes to business models that may evolve following the 
implementation of the Commission's new Regulation NMS and the 
Exchange's own hybrid market initiative.
---------------------------------------------------------------------------

    It is also proposed that, in each auction, NYSE Market will limit 
the number of Trading Licenses that may be bid for by a single member 
organization to the greater of (i) 35 and (ii) 125% of the number of 
trading licenses (or in the case of the first auction, regular and 
electronic access memberships) utilized by the member organization in 
its business immediately prior to the auction. It is also proposed that 
the aggregate number of Trading Licenses to be issued in any one year 
will be limited to 1,366.
    Except for the initial Trading Licenses, which will be valid from 
the closing date of the Merger through the end of the calendar year in 
which the Merger occurs, each Trading License will be valid for one 
calendar year.\43\ Trading Licenses will not be able to be leased or 
transferred, although they will be permitted to be transferred to an 
affiliated member organization, or to another qualified member 
organization which continues substantially the same business as the 
Trading License holder. A member organization may terminate a Trading 
License prior to the expiration of its term in accordance with 
applicable rules and subject to applicable administrative fees. Trading 
Licenses will not represent any equity interest in NYSE Group or any of 
its subsidiaries (including NYSE Market). Holders of Trading Licenses 
will not have any voting rights or rights to distribution in New York 
Stock Exchange LLC, NYSE Market or NYSE Group by virtue of their status 
as holders of Trading Licenses, except to the extent their vote is 
sought in connection with the petition nomination process described 
under ``Fair Representation of Members'' above.
---------------------------------------------------------------------------

    \43\ The NYSE also proposes to provide for the sale of 
additional Trading Licenses during the year at a premium to the 
auction price, pro rated for the amount of time remaining for the 
year, in order to, among other things, ensure that the supply of 
Trading Licenses is adequate to meet demand for Trading Licenses 
should conditions change after the auction, and to accommodate new 
businesses that commence operations after the beginning of the year. 
This will also accommodate those who under priced their bids in the 
auction. The premium will help defray out-of-cycle administration 
costs and encourage participation in the annual auction, thereby 
promoting the optimal price and quantity discovery in the auction.
---------------------------------------------------------------------------

    As noted above, the procedures under which Trading Licenses will be 
made available are calculated to comply with the requirements of 
section 6(b)(2) of the Act regarding fair access to the facilities of a 
registered exchange. As discussed more fully below, the Dutch auction 
is itself a fair way to determine access, especially given that it is 
subject to provisions calculated to insure that Trading Licenses are 
widely available, such as the provisions (i) specifying a reasonable 
minimum bid price, (ii) calculating the clearing price with reference 
to what will sell at least 1000 Trading Licenses, assuming sufficient 
bids, (iii) limiting the number of Trading Licenses that may be bid for 
by a single member organization, and (iv) the arrangement to sell 
additional Trading Licenses during the year at a 10% premium up to the 
maximum of 1366 Trading Licenses. The procedures under which Trading 
Licenses will be made available are also intended to comply with the 
requirements of section 6(b)(4) of the Act, which requires that a 
registered exchange provide for the equitable allocation of reasonable 
dues, fees, and charges among its members and issuers and other persons 
using its facilities. The price for a Trading License is reasonable 
because it is basically determined by ``the market'', that is, by the 
member organizations that wish to obtain a trading license. The Dutch 
auction allows those member organizations to themselves determine the 
price, subject to the provisions referenced in clauses (i) to (iv) 
above which, as noted, are calculated to insure that Trading Licenses 
are widely available. The minimum bid price is reasonable because it is 
determined with reference to the prices which member organizations have 
recently been willing to pay for direct access to the trading 
facilities. The auction is also closely related to the way access to 
the New York Stock Exchange was traditionally priced, with supply and 
demand governing the price at which traditional memberships were 
purchased or leased. The pricing of Trading Licenses in between 
auctions is also reasonable, as it is based on the auction price, but 
with a premium to the auction price that is modest, but hopefully will 
encourage participation in the auction, which in turn will strengthen 
the price discovery mechanism that the auction provides.

Access to ArcaEx

    The Merger will have no effect on the right of any party to trade 
securities on ArcaEx, a facility of the Pacific Exchange. Any 
registered broker-dealer who wishes to trade on ArcaEx must become a 
permit holder by obtaining an equity trading permit from PCX Equities. 
Broker-dealers that do not hold

[[Page 2090]]

such trading permits may have access to ArcaEx through a broker-dealer 
that is a permit holder.

Access to the Pacific Exchange

    The Merger will have no effect on the right of any party to trade 
securities on the trading facilities of the Pacific Exchange. Any 
registered broker-dealer who wishes to trade on the Pacific Exchange 
must become a permit holder by obtaining a trading permit from the 
Pacific Exchange. Broker-dealers that do not hold such trading permits 
may access the Pacific Exchange through a broker-dealer that is a 
permit holder.

Delegation and Protection of SRO Functions; Services Agreement

Overview

    Following the Merger, NYSE Group will be the parent company of two 
national securities exchanges registered under section 6 of the Act: 
(a) New York Stock Exchange LLC (as the proposed successor to the 
NYSE); and (b) the Pacific Exchange (which will be held through 
Archipelago).
    Pursuant to the NYSE Delegation Agreement, New York Stock Exchange 
LLC will delegate the performance of its regulatory functions to NYSE 
Regulation and the performance of its market functions to NYSE 
Market.\44\ The Pacific Exchange will also contract for the provision 
of certain of its regulatory functions from NYSE Regulation pursuant to 
the Pacific Exchange Regulatory Services Agreement.
---------------------------------------------------------------------------

    \44\ See proposed NYSE Rule 20(a).
---------------------------------------------------------------------------

NYSE Delegation Agreement

    The NYSE Delegation Agreement will provide that New York Stock 
Exchange LLC shall delegate to NYSE Regulation, and NYSE Regulation 
shall assume, the following responsibilities and functions of a 
registered national securities exchange: \45\
---------------------------------------------------------------------------

    \45\ Note that, of necessity, NYSE Market will be called upon to 
coordinate with and assist NYSE Regulation in certain of its 
functions. See supra note 29.
---------------------------------------------------------------------------

    1. To establish and administer rules and regulations, including 
developing and adopting necessary or appropriate amendments thereto, 
interpretations, exemptions, policies and procedures relating to the 
business of New York Stock Exchange LLC members, member organizations 
and their employees, allied members, and approved persons (``member 
organizations and persons associated therewith'') including, but not 
limited to regulatory fees, qualifications, reporting and membership 
requirements, trading, financial, operational, sales practice and 
disciplinary rules, and rules governing hearings, arbitrations and 
dispute resolution.
    2. To take necessary or appropriate action to assure compliance 
with the rules, interpretations, policies and procedures of New York 
Stock Exchange LLC, the Federal securities laws, and other laws, rules 
and regulations that New York Stock Exchange LLC has the authority to 
administer or enforce, through examination, surveillance, 
investigation, enforcement, disciplinary and other programs.
    3. To administer programs and systems for the surveillance and 
enforcement of rules governing trading on the NYSE Market and any 
facilities thereof and in NYSE-listed securities by New York Stock 
Exchange LLC member organizations and persons associated therewith.
    4. To review complaints, examine and investigate New York Stock 
Exchange LLC member organizations and persons associated therewith to 
determine if they have violated the rules and policies of New York 
Stock Exchange LLC, the Federal securities laws, and other laws, rules 
and policies that New York Stock Exchange LLC has the authority to 
administer, interpret or enforce.
    5. To administer New York Stock Exchange LLC enforcement and 
disciplinary programs, including investigation, adjudication of cases 
and the imposition of fines and other sanctions. A decision upon appeal 
to the NYSE Regulation board of directors of disciplinary matters shall 
be the final action of New York Stock Exchange LLC.
    6. To administer New York Stock Exchange LLC's Office of the 
Hearing Board.
    7. To conduct arbitrations, mediations and other dispute resolution 
programs.
    8. To conduct qualification examinations and continuing education 
programs.
    9. To determine whether natural person designees for Trading 
Licenses and applications for member organizations have met the 
requirements established by New York Stock Exchange LLC.
    10. To place restrictions on the business activities of New York 
Stock Exchange LLC member organizations and persons associated 
therewith consistent with the public interest, the protection of 
investors, the rules and policies of New York Stock Exchange LLC, the 
federal securities laws, and other laws, rules and policies that New 
York Stock Exchange LLC has the authority to administer, interpret or 
enforce.
    11. To determine whether persons seeking to register as associated 
persons of New York Stock Exchange LLC member organizations, including 
members, have met such qualifications for registration as may be 
established by New York Stock Exchange LLC, including whether 
statutorily disqualified persons will be permitted to associate with 
particular New York Stock Exchange LLC member organizations and 
members, and the conditions of such association.
    12. To determine whether applicants for listing on New York Stock 
Exchange LLC have met the initial listing requirements established by 
the New York Stock Exchange LLC and to determine whether listed issues 
and issuers meet the continuing listing requirements and to administer 
rules governing listing standards established by the New York Stock 
Exchange LLC.
    13. To coordinate with NYSE Market with respect to the operations 
of Market Watch.
    14. To determine, assess, collect and retain for regulatory 
purposes such examination, access, registration, qualification, 
continuing education, arbitration, mediation, dispute resolution and 
other regulatory fees as may be imposed from time to time and to retain 
disciplinary fines and penalties as may be imposed in disciplinary 
actions, for regulatory purposes.
    15. To establish the annual budget for NYSE Regulation.
    16. To determine allocation of NYSE Regulation resources.
    17. To establish and assess fees and other charges on New York 
Stock Exchange LLC member organizations and persons associated 
therewith, and others using the services or facilities of NYSE 
Regulation.
    18. To manage external relations on enforcement and regulatory 
policy issues with Congress, the Commission, state regulators, other 
self-regulatory organizations, business groups, and the public.
    New York Stock Exchange LLC will also delegate performance of the 
following market functions to NYSE Market pursuant to the NYSE 
Delegation Agreement: \46\
---------------------------------------------------------------------------

    \46\ Note that, of necessity, NYSE Market will be called upon to 
coordinate with and assist NYSE Regulation in certain of its 
functions. See supra note 29.
---------------------------------------------------------------------------

    1. To operate NYSE Market, including automated systems supporting 
it.
    2. To provide and maintain a communications network infrastructure 
linking market participants for the efficient process and handling of 
quotations, orders, transaction reports and comparisons of 
transactions.

[[Page 2091]]

    3. To act as a Securities Information Processor for quotations and 
transaction information related to securities traded on NYSE Market and 
other trading facilities operated by NYSE Market.
    4. To administer the participation of New York Stock Exchange LLC 
in the National Market System and Commission regulations related 
thereto.
    5. To collect, process, consolidate and provide to NYSE Regulation 
accurate information requisite to operation of a surveillance audit 
trail.
    6. To develop and adopt rules governing listing standards 
applicable to securities listed on New York Stock Exchange LLC and the 
issuers of those securities in consultation with NYSE Regulation.
    7. To establish and assess listing fees, access fees, transaction 
fees, market data fees and other fees for the products and services 
offered by NYSE Market.
    8. To develop, adopt and administer rules governing the issuance of 
Trading Licenses.
    9. To operate Market Watch in coordination with NYSE Regulation and 
to refer to NYSE Regulation any complaints of a regulatory nature 
involving potential rule violations by Trading License holders, member 
organizations or employees.
    10. To establish the annual budget for NYSE Market.
    11. To determine allocation of NYSE Market resources.
    12. To manage external relations on matters related to trading on 
and the operation and functions of the NYSE Market with Congress, the 
Commission, state regulators, other self-regulatory organizations, 
business groups, and the public.
    New York Stock Exchange LLC will have ultimate responsibility for 
the operations, rules and regulations developed by NYSE Regulation and 
NYSE Market, as well as their enforcement. Actions taken pursuant to 
delegated authority will remain subject to review, approval or 
rejection by the board of directors of New York Stock Exchange LLC in 
accordance with procedures established by that board of directors; 
provided that action taken upon review of disciplinary decisions by the 
NYSE Regulation board of directors shall be final action of the New 
York Stock Exchange LLC.
    In addition, New York Stock Exchange LLC will expressly retain the 
following authority and functions:
    1. To exercise overall responsibility for ensuring that statutory 
and self-regulatory obligations and functions of New York Stock 
Exchange LLC are fulfilled and to perform any duties and functions not 
delegated.
    2. To delegate authority to NYSE Regulation and, to the extent 
applicable, NYSE Market to take actions on behalf of the New York 
Exchange LLC.
    3. To elect the members of the boards of directors of NYSE Market 
and NYSE Regulation.
    4. To coordinate actions of NYSE Regulation and NYSE Market as 
necessary.
    5. To resolve as appropriate any disputes between NYSE Regulation 
and NYSE Market.
    6. To direct NYSE Regulation and NYSE Market to take action 
necessary to effectuate the purposes and functions of New York Stock 
Exchange LLC, consistent with the independence of the regulatory 
functions delegated to NYSE Regulation, exchange rules, policies and 
procedures and the Federal securities laws.
    The delegation of regulatory functions to NYSE Regulation will be 
subject to certain provisions designed to ensure the ability of the New 
York Stock Exchange LLC to comply with its obligations as SRO and to 
maintain the ability of the Commission to ensure effective oversight of 
these obligations. Specifically, for so long as NYSE Regulation has any 
delegated regulatory responsibility pursuant to this Agreement, NYSE 
Regulation agrees that:
    1. To the fullest extent permitted by applicable law, all 
confidential information pertaining to the self-regulatory function of 
New York Stock Exchange LLC or any Delegated Regulatory Responsibility 
(including but not limited to disciplinary matters, trading data, 
trading practices and audit information) contained in the books and 
records of New York Stock Exchange LLC or NYSE Market that shall come 
into the possession of NYSE Regulation shall: (a) Not be made available 
to any person (other than as provided in the next sentence) other than 
to those officers, directors, employees and agents of the NYSE 
Regulation who have a reasonable need to know the contents thereof; (b) 
be retained in confidence by NYSE Regulation and the officers, 
directors, employees and agents of NYSE Regulation; and (c) not be used 
for any commercial purposes; provided, that nothing in this sentence 
shall be interpreted so as to limit or impede the rights of the 
Commission or New York Stock Exchange LLC to access and examine such 
confidential information pursuant to the Federal securities laws and 
the rules and regulations thereunder, or to limit or impede the ability 
of any officers, directors, employees or agents of NYSE Regulation to 
disclose such confidential information to the Commission or New York 
Stock Exchange LLC.
    2. NYSE Regulation's books and records shall be subject at all 
times to inspection and copying by (a) the Commission and (b) by New 
York Stock Exchange LLC.
    3. NYSE Regulation's books and records shall be maintained within 
the United States.
    4. The books, records, premises, officers, directors and employees 
of NYSE Regulation shall be deemed to be the books, records, premises, 
officers, directors and employees of New York Stock Exchange LLC for 
purposes of and subject to oversight pursuant to the Act.
    5. NYSE Regulation shall comply with the Federal securities laws 
and the rules and regulations thereunder and shall cooperate with the 
Commission and New York Stock Exchange LLC pursuant to and to the 
extent of its regulatory authority, and shall take reasonable steps 
necessary to cause its agents to cooperate, with the Commission and, 
where applicable, New York Stock Exchange LLC pursuant to their 
regulatory authority.
    6. NYSE Regulation, its directors and officers, and those of its 
employees whose principal place of business and residence is outside of 
the United States shall be deemed to irrevocably submit to the 
jurisdiction of the United States Federal courts and the Commission for 
the purposes of any suit, action or proceeding pursuant to the United 
States Federal securities laws and the rules and regulations 
thereunder, commenced or initiated by the Commission arising out of, or 
relating to, the activities of New York Stock Exchange LLC or any 
delegated regulatory responsibility (and shall be deemed to agree that 
NYSE Regulation may serve as the U.S. agent for purposes of service of 
process in such suit, action or proceeding), and NYSE Regulation and 
each such director, officer or employee, in the case of any such 
director, officer or employee by virtue of his acceptance of any such 
position, shall 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 such suit, action or 
proceeding is an inconvenient forum or that the venue of such suit, 
action or proceeding is improper, or that the subject matter thereof 
may not be enforced in or by such courts or agency.
    In addition, for so long as NYSE Regulation has any delegated 
regulatory responsibility pursuant to the NYSE

[[Page 2092]]

Delegation Agreement, New York Stock Exchange LLC agrees that:
    1. New York Stock Exchange LLC shall not transfer or assign its 
membership in NYSE Regulation to another person.
    2. New York Stock Exchange LLC shall not use any assets of, or any 
regulatory fees, fines or penalties collected by, NYSE Regulation for 
commercial purposes or distribute such assets, fees, fines or penalties 
to NYSE Group or any other entity other than NYSE Regulation.
    In addition, for so long as NYSE Market has any delegated market 
responsibility pursuant to the NYSE Delegation Agreement, NYSE Market 
agrees that:
    1. To the fullest extent permitted by applicable law, all 
confidential information pertaining to the self-regulatory function of 
New York Stock Exchange LLC or any Delegated Market Responsibility 
(including but not limited to disciplinary matters, trading data, 
trading practices and audit information) contained in the books and 
records of New York Stock Exchange LLC or NYSE Regulation that shall 
come into the possession of NYSE Market shall: (a) Not be made 
available to any person (other than as provided in the next sentence) 
other than to those officers, directors, employees and agents of the 
NYSE Market who have a reasonable need to know the contents thereof; 
(b) be retained in confidence by NYSE Market and the officers, 
directors, employees and agents of NYSE Market; and (c) not be used for 
any commercial purposes; provided, that nothing in this sentence shall 
be interpreted so as to limit or impede the rights of the Commission or 
New York Stock Exchange LLC to access and examine such confidential 
information pursuant to the federal securities laws and the rules and 
regulations thereunder, or to limit or impede the ability of any 
officers, directors, employees or agents of NYSE Market to disclose 
such confidential information to the Commission or New York Stock 
Exchange LLC.
    2. NYSE Market's books and records shall be subject at all times to 
inspection and copying by (a) the Commission and (b) by New York Stock 
Exchange LLC.
    3. NYSE Market's books and records shall be maintained within the 
United States.
    4. The books, records, premises, officers, directors and employees 
of NYSE Market shall be deemed to be the books, records, premises, 
officers, directors and employees of New York Stock Exchange LLC for 
purposes of and subject to oversight pursuant to the Act.
    5. NYSE Market shall comply with the Federal securities laws and 
the rules and regulations thereunder and shall cooperate with the 
Commission and New York Stock Exchange LLC pursuant to and to the 
extent of its regulatory authority, and shall take reasonable steps 
necessary to cause its agents to cooperate, with the Commission and, 
where applicable, New York Stock Exchange LLC pursuant to their 
regulatory authority.
    6. NYSE Market, its directors, officers and employees shall give 
due regard to the preservation of the independence of the self-
regulatory function of New York Stock Exchange LLC delegated to NYSE 
Regulation and to obligations to investors and the general public and 
shall not take any actions that would interfere with the effectuation 
of any decisions by the board of directors or managers of New York 
Stock Exchange LLC and NYSE Regulation relating to their regulatory 
functions (including disciplinary matters) or that would interfere with 
the ability of New York Stock Exchange LLC to carry out its 
responsibilities under the Act or NYSE Regulation with respect to 
regulatory responsibilities delegated by New York Stock Exchange LLC.
    7. NYSE Market, its directors and officers, and those of its 
employees whose principal place of business and residence is outside of 
the United States shall be deemed to irrevocably submit to the 
jurisdiction of the United States Federal courts and the Commission for 
the purposes of any suit, action or proceeding pursuant to the United 
States federal securities laws and the rules and regulations 
thereunder, commenced or initiated by the Commission arising out of, or 
relating to, the activities of New York Stock Exchange LLC or any 
delegated market responsibility (and shall be deemed to agree that NYSE 
Market may serve as the U.S. agent for purposes of service of process 
in such suit, action or proceeding), and NYSE Market and each such 
director, officer or employee, in the case of any such director, 
officer or employee by virtue of his acceptance of any such position, 
shall 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 such suit, action or proceeding is an 
inconvenient forum or that the venue of such suit, action or proceeding 
is improper, or that the subject matter thereof may not be enforced in 
or by such courts or agency.
    For so long as NYSE Market has any delegated market responsibility 
pursuant to this Agreement, New York Stock Exchange LLC agrees that New 
York Stock Exchange LLC may not transfer or assign any of its shares of 
common stock of NYSE Market.
    The NYSE Delegation Agreement may not be modified except pursuant 
to a written agreement among New York Stock Exchange LLC, NYSE 
Regulation and NYSE Market; provided that, prior to the effectiveness 
of any such amendment, such amendment shall be filed with, and approved 
by, the Commission under section 19 of the Act and the rules 
promulgated thereunder.

Services Agreement

    Following the Merger, the Pacific Exchange and NYSE Regulation will 
be parties to a services agreement. The services agreement will ensure 
that the Pacific Exchange will provide adequate funding to NYSE 
Regulation so that NYSE Regulation has the capacity to carry out the 
regulatory services it will provide to the Pacific Exchange.

Regulatory Activities of NYSE Regulation

    Currently, the regulatory responsibilities of the NYSE are 
conducted within the NYSE by the following five divisions, collectively 
referred to as NYSE Regulation: Listed Company Compliance; Member Firm 
Regulation; Market Surveillance; Enforcement; and Arbitration/Dispute 
Resolution. In addition, although not currently within NYSE Regulation, 
the Office of the Hearing Board and the Chief Hearing Officer report to 
the NYSE board of directors through its regulatory oversight committee 
rather than to the chief regulatory officer. Regulatory Quality Review 
(``RQR'') is similarly positioned, and the heads of Corporate Audit and 
RQR likewise report to the regulatory oversight committee in respect of 
RQR functions. After the Merger, NYSE Regulation will operate as a 
separate not-for-profit entity, rather than as a division of NYSE 
Group.
    NYSE Regulation will continue to have the same responsibilities as 
its current responsibilities, and will be contracted to provide certain 
of the regulatory responsibilities of the Pacific Exchange, and the 
administration of disciplinary actions, except that the Office of the 
Hearing Board does not currently (and after the Merger will not) report 
through or to the chief regulatory officer of NYSE Regulation. The NYSE 
Regulation board of directors will perform all the functions of the 
current regulatory oversight committee, with the Office of the Hearing 
Board and the RQR function reporting to it. After the

[[Page 2093]]

Merger, the decisions of the Office of the Hearing Board may be 
reviewed by the non-management members of the NYSE Regulation board of 
directors, pursuant to the NYSE Delegation Agreement, or by the Pacific 
Exchange board of directors as to disciplinary matters affecting 
Pacific Exchange members and permit holders, pursuant to the Pacific 
Exchange Regulatory Services Agreement. As noted above, the NYSE 
Regulation board of directors will create a successor committee to the 
current regulatory enforcement and listing standards committee of the 
NYSE board of directors, to be called the Committee for Review. This 
successor committee will include both NYSE Regulation directors, and 
other individuals representing member constituencies. It is also 
expected to include individuals representing investor and listed 
company constituencies. Any member of the Committee for Review, 
including the non-director representatives on such committee, will be 
authorized to call up disciplinary decisions for appellate review, as 
will the Executive Floor Governors who will constitute the most senior 
level of practitioner supervision on the trading floor.
    NYSE Regulation will determine, assess, collect and retain for 
regulatory purposes such examination, access, registration, 
qualification, continuing education, arbitration, dispute resolution 
and other regulatory fees as may be imposed from time to time, subject 
to Commission approval. NYSE Regulation expects, for example, to 
continue to fund its examination programs for assuring financial 
responsibility and compliance with sales practice rules, testing and 
continuing education services (the primary functions of Member Firm 
Regulation), through fees assessed directly on member organizations, 
that are calculated as a percentage of gross revenues of these member 
organizations and will fund arbitration and dispute resolution services 
through assessment of fees.\47\
---------------------------------------------------------------------------

    \47\ NYSE Regulation will oversee the NYSE Hybrid Market,\SM\ 
currently being created by the NYSE as the world's first auction/
electronic hybrid trading market, through its regulatory program.
---------------------------------------------------------------------------

    NYSE Regulation will also receive funding through its agreements 
with New York Stock Exchange LLC and the Pacific Exchange.\48\ No 
assets of, and no regulatory fees, fines or penalties collected by NYSE 
Regulation, will be distributed or otherwise used by the rest of NYSE 
Group. Upon completion of the Merger, NYSE Regulation may undergo 
additional structural and governance changes to comply with any rules 
finally adopted by the Commission following its proposals relating to 
governance, transparency, oversight and ownership of SROs.
---------------------------------------------------------------------------

    \48\ At the request of the Exchange, the Commission staff 
replaced the phrase ``services agreement'' with ``agreements.'' 
January 3 Telephone Conversation.
---------------------------------------------------------------------------

Rules of New York Stock Exchange LLC

    New York Stock Exchange LLC, as the proposed successor to the 
NYSE's registration as a national securities exchange, proposes to make 
a number of amendments to the NYSE Rules, which, after the Merger, will 
be the rules of New York Stock Exchange LLC.\49\ As, such, the first 
proposed amendment is to delete references to ``New York Stock 
Exchange, Inc.'' in the rules and replace them with ``the Exchange.''
---------------------------------------------------------------------------

    \49\ The following NYSE Rules proposed to be amended through 
this filing are currently the subject of pending, proposed 
amendments previously filed with the Commission: Rules 103A and 103B 
(SR-NYSE-2005-40, filed on June 6, 2005); Rule 123A (SR-NYSE-2004-
05, filed on February 9, 2004); Rule 123D (SR-2005-46, filed on June 
29, 2005); Rule 301 (SR-NYSE-2005-83, filed on November 28, 2005, 
operative December 5, 2005); Rule 312 (SR-2005-58, filed on August 
15, 2005); Rule 325 (SR-NYSE-2005-03, filed on January 5, 2005); 
Rule 342 (SR-NYSE-2005-22, filed on March 16, 2005; and SR-NYSE-
2005-60, filed on August 15, 2005); Rules 475 and 476 (SR-NYSE-2005-
37, filed on May 23, 2005); Rule 476A (SR-NYSE-2005-40, filed on 
June 6, 2005; SR-NYSE-2005-64, filed on September 22, 2005, approved 
on November 10, 2005; and SR-NYSE-2005-86, filed on December 7, 
2005); Rule 600 (SR-NYSE-2005-73, filed on October 20, 2005); and 
Rule 619 (SR-NYSE-2005-18, filed on February 17, 2005; and SR-NYSE-
2005-48, filed on July 13, 2005). At the request of the Exchange, 
the Commission revised the footnote to correct factual errors. 
Telephone conversation between James F. Duffy, Senior Vice President 
and Deputy General Counsel, NYSE, and Kim M. Allen, Special Counsel, 
Commission, Division, on December 14, 2005.
---------------------------------------------------------------------------

    In addition, under the current business model of the NYSE, in order 
to effect transactions on the NYSE trading floor, a NYSE member has to 
own or lease a NYSE membership, or ``seat.'' Upon completion of the 
Merger, NYSE memberships and leases of those memberships will cease to 
exist. Instead, they will be replaced with Trading Licenses. NYSE Rules 
300 and 300T are proposed to specify the terms under which Trading 
Licenses will be sold.
    The NYSE proposes to amend NYSE Rule 2 to redefine the terms 
``member'' and ``member organization'' in order to be consistent with 
the new form of access to the NYSE Market that will result after the 
Merger. Currently, NYSE Rule 2 cites the definitions found in Section 3 
of Article I of the NYSE Constitution. The Proposed Rule Change will 
delete any reference to the NYSE Constitution and incorporate the new 
definitions that comport with the fact that member organizations will 
be those that hold Trading Licenses, as well as those who do not hold 
Trading Licenses but have agreed to subject themselves to NYSE 
Regulation.
    In addition, upon completion of the Merger, the governance portion 
of the NYSE Constitution will be replaced by the proposed governing 
documents of NYSE Group and affiliated entities. In order to maintain a 
coherent set of Rules and comply with New York Stock Exchange LLC's 
obligations as a self-regulatory organization, this Proposed Rule 
Change seeks to codify any relevant provisions of the non-governance 
portions of the NYSE Constitution and remove all references to the NYSE 
Constitution. In order to conform the NYSE Rules, the Exchange proposes 
to amend those Exchange Rules that make reference to the NYSE 
Constitution.
    The Proposed Rule Change further seeks to amend rules that 
reference the NYSE board of executives. Upon completion of the Merger, 
it is contemplated that the NYSE Market and NYSE Regulation boards of 
directors will establish one or more advisory committees (including 
industry representatives and representatives of specialists and non-
specialists). Designated floor officials, to be called Executive Floor 
Governors,\50\ shall generally have responsibilities of the current 
floor representatives on the NYSE board of executives. In order to 
facilitate this transition of authority, those Exchange Rules that 
refer to the NYSE board of executives Floor Representatives are 
proposed to be amended.
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    \50\ See proposed NYSE Rule 46A.
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    In addition, Trading Licenses will not be subject to lease or sub-
lease. Therefore, various provisions and rules that reference leases 
will be deleted. The New York Stock Exchange LLC (through NYSE 
Regulation) will continue to approve member organizations and persons 
associated therewith, specialists and floor brokers, but will dispense 
with the requirement for posting and personal sponsors formerly 
required for members and allied members contained in NYSE Rules 301, 
304, and 311. The Exchange proposes to amend certain Exchange Rules to 
delete references to leases and to amend the definition of ``member 
organization.''
    Further, the Proposed Rule Change includes proposed new NYSE Rule 
20 that sets forth the delegation from the New York Stock Exchange LLC 
to NYSE Market and NYSE Regulation.

[[Page 2094]]

    The Exchange also proposes to amend NYSE Rule 103B, the Exchange 
Allocation Policy, with respect to the allocation of NYSE Group stock 
to (i) give NYSE Group the right to determine the number and identity 
of specialist firms that will be included in the group from which it 
shall choose its specialist, provided the group consists of at least 
four specialist firms, and (ii) provide NYSE Group with the same 
material with respect to each specialist firm applicant as would have 
been reviewed by the Allocation Committee in allocating other 
securities. All other aspects of the policy will continue to apply. It 
is expected that the independent directors of NYSE Group will select 
the specialist for NYSE Group common stock.
    The Exchange is proposing this change to the Allocation Policy in 
recognition of the special circumstances involved in determining which 
of its specialist firms will be the specialist for the NYSE Group's 
stock. The Exchange is concerned that it would be unreasonable to 
subject the non-specialist members of the Exchange who serve on the 
Allocation Committee to the unique pressures involved in making a 
judgment to remove several of the specialist units from consideration. 
In effect, they would be subject to a kind of conflict that the 
Exchange believes would make it difficult for them to bring their 
impartial judgment to the selection process. The Exchange believes 
instead that the entire selection decision is best placed in the hands 
of independent directors, who have no ties to the member community 
other than their membership on the board. For similar reasons NYSE 
Group intends to remove its own chief executive officer from the 
process, in contrast to the typical listing, where it is normally the 
chief executive that would be entitled to make the final decision on 
selection of a specialist.
2. Statutory Basis
    The Exchange believes that this filing, as amended, is consistent 
with section 6(b) of the Act,\51\ in general, and furthers the 
objectives of section 6(b)(1) of the Act,\52\ 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 Act and to comply, and to enforce 
compliance by its exchange members and persons associated with its 
exchange members, with the provisions of the Act, the rules and 
regulations thereunder, and the rules of the Exchange. The Exchange 
also believes that this filing, as amended, furthers the objectives of 
section 6(b)(5) \53\ of the Act because the rules summarized herein 
would create 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 remove impediments to, and 
perfect the mechanism of a free and open market and, in general, to 
protect investors and the public interest.\54\
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    \51\ 15 U.S.C. 78f(b).
    \52\ 15 U.S.C. 78f(b)(1).
    \53\ 15 U.S.C. 78f(b)(5).
    \54\ The Commission notes that the Exchange has referenced 
section 6(b)(3) of the Act in connection with the Exchange's 
discussion of ``Fair Representation of Members.'' See supra note and 
accompanying text. The Commission further notes that the Exchange 
has referenced sections 6(b)(2) and 6(b)(4) of the Act. See supra 
``Trading Licenses; Access to NYSE Market.''
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change, as 
amended, will impose any burden on competition that is not necessary or 
appropriate in furtherance of the purposes of the Act.

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

    While the Exchange did not solicit comments on the Proposed Rule 
Change, it did receive one written comment in a letter dated December 
14, 2005 from the Independent Broker Action Committee (``IBAC''). IBAC 
noted that the Exchange had informed its members that the first Trading 
License auction would take place on December 20, 2005. IBAC stated that 
it is improper for the Exchange to hold an auction under the Proposed 
Rule Change before it has been published for comment and approved by 
the Commission, and that if the Exchange did so it would prejudice 
IBAC's ability to comment on Proposed Rule Change.
    IBAC has not commented on the substance of the Proposed Rule 
Change, but rather has objected to proposed Exchange action prior to 
Commission approval of the Proposed Rule Change. The Exchange does not 
agree that IBAC would be in any way prejudiced in its ability to 
comment. Conducting the first auction provisionally would simply give 
members and others as much certainty as possible as early as possible 
to plan for post-Merger business, as well as permitting both the 
Commission and the Exchange the opportunity to observe whether the 
auction procedures resulted in a fair and orderly pricing of the 
Trading Licenses and fair access to the facilities of the Exchange.

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    Within 35 days of the date of publication of this notice in the 
Federal Register or within such longer period (i) as the Commission may 
designate up to 90 days of such date if it finds such longer period to 
be appropriate and publishes its reasons for so finding or (ii) as to 
which the self-regulatory organization consents, the Commission will:
    (A) By order approve such proposed rule change, or
    (B) Institute proceedings to determine whether the proposed rule 
change should be disapproved.
    The Exchange is targeting a closing date of January 23, 2006 for 
the Merger. In the event that it is necessary in order to facilitate 
that timetable, the Exchange requests that the Commission accelerate 
effectiveness of the filing pursuant to section 19(b)(2) to a date no 
later than January 23, 2006.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the proposed rule 
change, as amended, is consistent with the Act. Comments may be 
submitted by any of the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an e-mail to [email protected]. Please include 
File Number SR-NYSE-2005-77 on the subject line.

Paper Comments

     Send paper comments in triplicate to Nancy M. Morris, 
Secretary, Securities and Exchange Commission, Station Place, 100 F 
Street, NE., Washington, DC 20549-9303.

All submissions should refer to File Number SR-NYSE-2005-77. 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

[[Page 2095]]

Commission and any person, other than those that may be withheld from 
the public in accordance with the provisions of 5 U.S.C. 552, will be 
available for inspection and copying in the Commission's Public 
Reference Room. Copies of such filing also will be available for 
inspection and copying at the principal office of the Exchange. All 
comments received will be posted without change; the Commission does 
not edit personal identifying information from submissions. You should 
submit only information that you wish to make available publicly. All 
submissions should refer to File Number SR-NYSE-2005-77 and should be 
submitted on or before February 2, 2006.

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\55\
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    \55\ 17 CFR 200.30-3(a)(12).
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Nancy M. Morris,
Secretary.
[FR Doc. 06-299 Filed 1-11-06; 8:45 am]
BILLING CODE 8010-01-P