[Federal Register Volume 78, Number 126 (Monday, July 1, 2013)]
[Notices]
[Pages 39369-39383]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-15631]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-69849; File No. SR-NYSEMKT-2013-50]


Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing of 
Proposed Rule Change Relating to a Corporate Transaction in which Its 
Indirect Parent, NYSE Euronext, Will Become a Wholly Owned Subsidiary 
of IntercontinentalExchange Group, Inc.

June 25, 2013.
    Pursuant to Section 19(b)(1)\1\ of the Securities Exchange Act of 
1934 (the ``Exchange Act'' or the ``Act'')\2\ and Rule 19b-4 
thereunder,\3\ notice is hereby given that, on June 14, 2013, NYSE MKT 
LLC (``NYSE MKT'') filed with the Securities and Exchange Commission 
(the ``Commission'') the proposed rule change as described in Items I 
and II below, which Items have been prepared by the self-regulatory 
organization. The Commission is publishing this notice to solicit 
comments on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

A. Overview of the Proposed Merger

    NYSE MKT, a New York limited liability company, registered national 
securities exchange and self-regulatory organization, is submitting 
this rule filing (the ``Proposed Rule Change'') to the U.S. Securities 
and Exchange Commission in connection with the proposed business 
combination (the ``Merger'') of NYSE Euronext (``NYSE Euronext'') and 
IntercontinentalExchange, Inc. (``ICE''), both Delaware corporations. 
NYSE Euronext has entered into an Agreement and Plan of Merger, dated 
as of December 20, 2012, as amended and restated as of March 19, 2013, 
by and among NYSE Euronext, ICE, IntercontinentalExchange Group, Inc. 
(``ICE Group''), Braves Merger Sub, Inc. (``ICE Merger Sub'') and 
Baseball Merger Sub, LLC (``NYSE Euronext Merger Sub'') (as it may be 
further amended from time to time, the ``Merger Agreement''), whereby 
NYSE Euronext and ICE would each become subsidiaries of ICE Group.
    NYSE Euronext owns 100% of the equity interest of NYSE Group, Inc., 
a Delaware corporation (``NYSE Group''), which in turn directly or 
indirectly owns (1) 100% of the equity interest of

[[Page 39370]]

three registered national securities exchanges and self-regulatory 
organizations (together, the ``NYSE Exchanges'')--NYSE MKT, NYSE Arca, 
Inc. (``NYSE Arca'') and New York Stock Exchange, LLC (the 
``Exchange'')--and (2) 100% of the equity interest of NYSE Market (DE), 
Inc. (``NYSE Market''), NYSE Regulation, Inc. (``NYSE Regulation''), 
NYSE Arca L.L.C., NYSE Arca Equities, Inc. (``NYSE Arca Equities'') and 
NYSE Amex Options LLC (``NYSE Amex Options'') (the NYSE Exchanges, 
together with (x) NYSE Market, NYSE Regulation, NYSE Arca L.L.C., NYSE 
Arca Equities and NYSE Amex Options and (y) any similar U.S. regulated 
entity acquired, owned or created after the date hereof, the ``U.S. 
Regulated Subsidiaries'' and each, a ``U.S. Regulated Subsidiary''). 
Each of NYSE Arca and NYSE MKT will be separately filing a proposed 
rule change in connection with the Merger that will be substantially 
the same as the Proposed Rule Change.
    ICE is a leading operator of regulated exchanges and clearing 
houses serving the risk management needs of global markets for 
agricultural, credit, currency, emissions, energy and equity index 
products. ICE directly and indirectly owns ICE Futures Europe, ICE 
Futures U.S., Inc., ICE Futures Canada, Inc., ICE U.S. OTC Commodity 
Markets, LLC, and five central counterparty clearing houses, including 
ICE Clear Europe Limited and ICE Clear Credit LLC, each of which is 
registered as a clearing agency under Section 17A of the Exchange 
Act,\4\ ICE Clear U.S., Inc., ICE Clear Canada, Inc., and The Clearing 
Corporation, and owns 100% of the equity in Creditex Group Inc., which 
in turn indirectly owns Creditex Securities Corporation. Neither ICE 
nor any company owned by it directly or indirectly, including, but not 
limited to, those referenced in this paragraph, is a registered 
national securities exchange or a member of any U.S. Regulated 
Subsidiary.
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    \4\ 15 U.S.C. 78qA [sic].
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    ICE's common stock is listed on the Exchange under the symbol 
``ICE,'' and, following the completion of the Merger, ICE Group common 
stock is expected to be listed for trading on the Exchange under the 
same symbol.

B. Summary of Proposed Rule Change

    NYSE MKT is proposing that, pursuant to the Merger, the successor 
to NYSE Euronext, NYSE MKT's indirect parent, will be a wholly owned 
subsidiary of ICE Group. ICE Group is currently a wholly owned 
subsidiary of ICE. ICE Group in turn has two wholly owned subsidiaries, 
ICE Merger Sub, a Delaware corporation, and NYSE Euronext Merger Sub, a 
Delaware limited liability company. To effect this transaction, (A) ICE 
Merger Sub will be merged with and into ICE (the ``ICE Merger''), with 
ICE as the surviving corporation and a wholly owned subsidiary of ICE 
Group, and each share of ICE common stock owned by an ICE stockholder 
(other than ICE or ICE Merger Sub) will be converted into the right to 
receive one share of ICE Group common stock, and (B) immediately 
following the ICE Merger, NYSE Euronext shall be merged with and into 
NYSE Euronext Merger Sub, with NYSE Euronext Merger Sub as the 
surviving company and a wholly owned subsidiary of ICE Group (the 
``NYSE Euronext Merger'' and, together with the ICE Merger, the 
``Merger''). Each issued and outstanding share of NYSE Euronext common 
stock will be converted into the right to receive the ``standard 
election amount'' of 0.1703 of a share of ICE Group common stock and 
$11.27 in cash, other than certain shares held by NYSE Euronext, ICE 
and their respective affiliates. Alternatively, NYSE Euronext 
stockholders will have the right to make either a cash election to 
receive $33.12 in cash, or a stock election to receive 0.2581 of a 
share of ICE Group common stock, for each share of NYSE Euronext. NYSE 
Euronext Merger Sub, as the surviving entity in the NYSE Euronext 
Merger, will change its name to NYSE Euronext Holdings LLC (``NYX 
Holdings'') from and after the closing of the Merger.
    If the Merger is completed, the businesses of ICE and NYSE 
Euronext, including the U.S. Regulated Subsidiaries, will be held under 
ICE Group as a single publicly traded holding company that will be 
listed on the Exchange. The Proposed Rule Change, if approved by the 
Commission, will not be effective until the consummation of the Merger.
    In addition, NYSE MKT is proposing that, in connection with the 
Merger, the Commission approve the organizational and other governance 
documents of ICE Group and NYX Holdings, as well as certain amendments 
to the organizational and other governance documents of NYSE Group and 
certain of the U.S. Regulated Subsidiaries, as well as certain rules of 
the Exchange, NYSE MKT and NYSE Arca Equities.\5\ The Proposed Rule 
Change is summarized as follows:
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    \5\ Proposed amendments to the governance documents and/or rules 
of the Exchange and NYSE Arca Equities are included in the Proposed 
Rule Change, and the text of those proposed amendments are attached 
as exhibits to the Proposed Rule Change, because they are part of 
the overall set of changes proposed by the NYSE Exchanges to be made 
in connection with the Merger.
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    Certificate of Incorporation and Bylaws of ICE Group. ICE Group 
would take appropriate steps to incorporate voting and ownership 
restrictions, provisions relating to the qualifications of directors 
and officers and their submission to jurisdiction, compliance with the 
Federal securities laws, access to books and records and other matters 
related to its control of the U.S. Regulated Subsidiaries. 
Specifically, the Amended and Restated Certificate of Incorporation of 
ICE Group (the ``ICE Group Certificate'') \6\ and the Amended and 
Restated Bylaws of ICE Group (the ``ICE Group Bylaws'') \7\ would 
contain provisions to incorporate these concepts with respect to 
itself, as well as its directors, officers, employees, and agents (as 
applicable):
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    \6\ The text of the proposed ICE Group Certificate is attached 
to the Proposed Rule Change as Exhibit 5A.
    \7\ The text of the proposed ICE Group Bylaws is attached to the 
Proposed Rule Change as Exhibit 5B.
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     Voting and Ownership Restrictions in the ICE Group 
Certificate and Bylaws. The ICE Group Certificate would contain voting 
and ownership restrictions that will restrict any person, either alone 
or together with its related persons, from having voting control over 
ICE Group shares entitling the holder thereof to cast more than 10% of 
the then outstanding votes entitled to be cast on a matter or 
beneficially owning ICE Group shares representing more than 20% of the 
outstanding votes entitled to be cast on a matter. The ICE Group 
Certificate would provide that ICE Group will be required to disregard 
any votes purported to be cast in excess of the voting restriction. In 
the event that any person(s) exceeds the ownership restrictions, it 
will be obligated to sell promptly, and ICE Group is obligated to 
purchase promptly, at a price equal to the par value of such shares and 
to the extent funds are legally available for such purchase, the number 
of shares of ICE Group necessary so that such person, together with its 
related persons, will beneficially own shares of ICE Group representing 
in the aggregate no more than 20% of the then outstanding votes 
entitled to be cast on any matter, after taking into account that such 
repurchased shares will become treasury shares and will no longer be 
deemed to be outstanding. Consistent with the current Amended and 
Restated Certificate of Incorporation of NYSE Euronext (the ``NYSE 
Euronext Certificate''), the ICE Group board of

[[Page 39371]]

directors may waive the voting and ownership restrictions if it makes 
certain determinations (which will be subject to the same requirements 
as are currently required to be made by the board of directors of NYSE 
Euronext in order to waive the voting and ownership restrictions in the 
NYSE Euronext Certificate) and resolves to expressly permit the voting 
and ownership that is subject to such restrictions, and such 
resolutions have been filed with, and approved by, the Commission under 
Section 19(b) of the Exchange Act and filed with, and approved by, the 
relevant European Regulators having appropriate jurisdiction and 
authority. The ICE Group Certificate further provides that the board of 
directors may not approve either voting or ownership rights in excess 
of a 20% threshold with respect to any person that is a Member of the 
Exchange, as defined in the ICE Group Certificate (an ``NYSE Member''), 
a Member of NYSE MKT as defined in the ICE Group Certificate (including 
any person who is a related person of such member, a ``NYSE MKT 
Member''), an ETP Holder of NYSE Arca Equities, as defined in the ICE 
Group Certificate (an ``ETP Holder''), or an OTP Holder or OTP Firm of 
NYSE Arca, as defined in the ICE Group Certificate (an ``OTP Holder'' 
and ``OTP Firm,'' respectively). This limitation is currently in the 
NYSE Euronext Certificate with respect to NYSE Members, ETP Holders, 
OTP Holders and OTP Firms, and in the Second Amended and Restated 
Bylaws of NYSE Euronext (the ``NYSE Euronext Bylaws'') with respect to 
NYSE MKT Members, including an expanded definition of ``Related 
Persons'' to address NYSE MKT Members in a manner that is substantively 
consistent with provisions currently located in the NYSE Rules.
     Jurisdiction. The ICE Group Bylaws will provide that ICE 
Group and its directors, and, to the extent they are involved in the 
activities of the U.S. Regulated Subsidiaries, its officers, and those 
of its employees whose principal place of business and residence is 
outside the United States will be deemed to irrevocably submit to the 
jurisdiction of the U.S. federal courts and the Commission for the 
purposes of any suit, action or proceedings pursuant to the U.S. 
federal securities laws and the rules or regulations thereunder, 
arising out of, or relating to, the activities of the U.S. Regulated 
Subsidiaries. In addition, the ICE Group Bylaws would provide that, so 
long as ICE Group directly or indirectly controls any U.S. Regulated 
Subsidiary, the directors, officers and employees will be deemed to be 
directors, officers and employees of such U.S. Regulated Subsidiaries 
for purposes of, and subject to oversight pursuant to, the Exchange 
Act. The ICE Group Bylaws would provide that ICE Group will take 
reasonable steps necessary to cause its officers, directors and 
employees to agree and consent in writing to the applicability to them 
of these jurisdictional and oversight provisions with respect to their 
activities related to any U.S. Regulated Subsidiary.
     Books and Records. The ICE Group Bylaws would provide that 
for so long as ICE Group directly or indirectly controls any U.S. 
Regulated Subsidiary, the books, records and premises of ICE Group will 
be deemed to be the books, records and premises of such U.S. Regulated 
Subsidiaries for purposes of, and subject to oversight pursuant to, the 
Exchange Act, and that ICE Group's books and records will at all times 
be made available for inspection and copying by the Commission, and by 
any U.S. Regulated Subsidiary to the extent they are related to the 
activities of such U.S. Regulated Subsidiary or any other U.S. 
Regulated Subsidiary over which such U.S. Regulated Subsidiary has 
regulatory authority or oversight. In addition, ICE Group's books and 
records related to the U.S. Regulated Subsidiaries will be maintained 
within the United States, except that to the extent that books and 
records may relate to both European subsidiaries and U.S. Regulated 
Subsidiaries, ICE Group may maintain such books and records either in 
the home jurisdiction of one or more European subsidiaries or in the 
United States.
     Restrictions on Amendments to ICE Group Certificate and 
Bylaws. The ICE Group Certificate would provide that before any 
amendment to the ICE Group Certificate may be effectuated, such 
amendment would need to be submitted to the board of directors of each 
U.S. Regulated Subsidiary and, if so determined by any such board, 
would need to be filed with, or filed with and approved by, the 
Commission before such amendment may become effective. The ICE Group 
Bylaws would include the same requirement.
     ICE Group Independence Policy. In addition, ICE Group will 
adopt a Director Independence Policy in the form attached to the 
Proposed Rule Change as Exhibit 5C (the ``ICE Group Independence 
Policy''), which would be substantially identical to the current 
Independence Policy of the NYSE Euronext board of directors except for 
the change of the entity whose board of directors adopted the policy 
and nonsubstantive conforming changes.
     Additional Matters. The ICE Group Bylaws would include 
provisions regarding cooperation with the Commission and the U.S. 
Regulated Subsidiaries, compliance with U.S. federal securities laws, 
confidentiality of information regarding the U.S. Regulated 
Subsidiaries' self-regulatory function, preservation of the 
independence of the U.S. Regulated Subsidiaries' self-regulatory 
function, and directors' consideration of the effect of ICE Group's 
actions on the U.S. Regulated Subsidiaries' ability to carry out their 
respective responsibilities under the Exchange Act.
    Proposed Approval of Waiver of Ownership and Voting Restrictions of 
NYSE Euronext. The Amended and Restated Certificate of Incorporation of 
NYSE Euronext (the ``NYSE Euronext Certificate'') currently restricts 
any person, either alone or together with its related persons, from 
being entitled to vote or cause the voting of shares to the extent that 
such shares represent in the aggregate more than 10% of the outstanding 
votes entitled to be cast on any matter or beneficially owning shares 
of stock of NYSE Euronext representing in the aggregate more than 20% 
of the outstanding votes entitled to be cast on any matter.\8\ NYSE 
Euronext is required to disregard votes which are in excess of the 
voting restriction and to repurchase NYSE Euronext shares that are held 
in excess of the ownership restriction. The NYSE Euronext Certificate 
and the Amended and Restated Bylaws of NYSE Euronext (the ``NYSE 
Euronext Bylaws'') provide that the board of directors of NYSE Euronext 
may waive these voting and ownership restrictions if it makes certain 
determinations and resolves to expressly permit the voting and 
ownership that is subject to such restrictions, and such resolutions 
have been filed with, and approved by, the Commission under Section 
19(b) of the U.S. Securities Exchange Act of 1934, as amended, and the 
rules promulgated thereunder,\9\ and filed with, and approved by, each 
European Regulator (as defined in the NYSE Euronext Certificate) having 
appropriate jurisdiction and authority.\10\ Acting pursuant to this 
waiver provision, the board of directors of NYSE Euronext has adopted 
the resolutions set forth in Exhibit 5D to the Proposed Rule Change

[[Page 39372]]

(the ``NYSE Euronext Resolutions'') in order to permit ICE Group to own 
and vote 100% of the outstanding common stock of NYX Holdings as of and 
after the NYSE Euronext Merger. NYSE MKT is requesting approval by the 
Commission of the NYSE Euronext Resolutions in order to allow the NYSE 
Euronext Merger to take place.
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    \8\ See Amended and Restated Certificate of Incorporation of 
NYSE Euronext, Article V Sections 1 & 2.
    \9\ 15 U.S.C. 78s(b).
    \10\ See Amended and Restated Certificate of Incorporation of 
NYSE Euronext, Article V Sections 1 & 2, and Amended and Restated 
Bylaws of NYSE Euronext, Section 10.12.
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    Changes to the NYSE Euronext Certificate and Bylaws. NYX Holdings, 
as a Delaware limited liability company, will operate pursuant to an 
operating agreement (the ``NYX Holdings Operating Agreement''), a copy 
of which is attached to the Proposed Rule Change as Exhibit 5E. The NYX 
Holdings Operating Agreement will differ in certain respects from the 
current NYSE Euronext Certificate and Bylaws as a result of the 
different form of organization of NYX Holdings and as a result of the 
change from a public company to a wholly owned subsidiary.
     Proposed Voting and Ownership Restrictions of NYX 
Holdings. Because NYX Holdings, the surviving entity of the merger of 
NYSE Euronext into Merger Sub, would be a wholly owned subsidiary of 
ICE Group as a result of the NYSE Euronext Merger, NYSE MKT is 
proposing to adopt voting and ownership restrictions that will differ 
from those in the current NYSE Euronext Certificate, and would be 
consistent with the analogous provisions in the Second Amended and 
Restated Certificate of Incorporation of NYSE Group (the ``NYSE Group 
Certificate''):
    [cir] first, the NYX Holdings Operating Agreement would provide 
that all of the issued and outstanding membership interests of NYX 
Holdings will be held by ICE Group, and that ICE Group may not transfer 
or assign any membership interests without approval by the Commission 
under the Exchange Act and the relevant European Regulators under the 
applicable European Exchange Regulations (as defined in the NYX 
Holdings Operating Agreement);\11\
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    \11\ See NYX Holdings Operating Agreement, Article VII Sections 
7.1 (ICE Group as sole member) and 7.2 (transfer restrictions).
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    [cir] second, the NYX Holdings Operating Agreement would provide 
that the voting and ownership restrictions contained therein would 
apply only in the event that ICE Group does not own all of the issued 
and outstanding membership interests of NYX Holdings and only for so 
long as NYX Holdings directly or indirectly controls any U.S. Regulated 
Subsidiary or any European Market Subsidiary (as such terms are defined 
in the NYX Holdings Operating Agreement). The voting and ownership 
restrictions in the NYX Holdings Operating Agreement would otherwise 
mirror those in both the current NYSE Group Certificate and the 
proposed ICE Group Certificate: A 10% threshold for the voting 
restriction and an ownership restriction of 20%.\12\
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    \12\ See NYSE Group Certificate, Article IV Section 4(b); and 
ICE Group Certificate, Article V.
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     Proposed Amendments to Certain Public-Company-Related and 
Other Provisions of NYSE Euronext Organizational and Corporate 
Governance Documents. Under the Proposed Rule Change, and in light of 
the fact that NYX Holdings will be a wholly owned subsidiary of ICE 
Group following the completion of the Merger, the NYX Holdings 
Operating Agreement, though based in substantial part on the current 
NYSE Euronext Certificate and Bylaws, will reflect a simplified and 
more efficient governance and capital structure that is appropriate for 
a wholly owned subsidiary. The NYX Holdings Operating Agreement also 
will include certain provisions that are analogous to provisions in the 
organizational documents of NYSE Group, which is a wholly owned 
subsidiary of NYSE Euronext, just as NYX Holdings will be a wholly 
owned subsidiary of ICE Group following completion of the Merger.
     Other. The NYX Holdings Operating Agreement will (a) 
include the provision, which is currently in the NYSE Euronext Bylaws, 
that requires the board of directors of NYSE Euronext to make certain 
determinations relating to NYSE MKT in order to waive the voting and 
ownership restrictions, (b) update the names of certain European 
regulatory authorities in the definitions of ``Euronext College of 
Regulators'' and ``European Regulator'' and the technical descriptions 
of regulated markets and entities in the definitions of ``European 
Exchange Regulations,'' ``European Regulated Market'' and ``European 
Market Subsidiary'' (as currently defined in the NYSE Euronext Bylaws 
and incorporated into the NYSE Euronext Certificate), and (c) expand 
the definition of ``Related Persons'' to address NYSE MKT Members in a 
manner that is substantively consistent with provisions currently 
located in the NYSE Rules.
    Proposed Amendments to Voting and Ownership Restrictions of NYSE 
Group. The NYSE Group Certificate currently provides that, if NYSE 
Euronext and the trust established pursuant to the Trust Agreement, 
dated as of April 4, 2007 and amended as of October 1, 2008, by and 
among NYSE Euronext, NYSE Group and other parties thereto (the ``NYSE 
Trust Agreement'') do not hold 100% of the outstanding stock of NYSE 
Group, no person, either alone or together with its related persons, 
may be entitled to vote or cause the voting of shares to the extent 
that such shares represent in the aggregate more than 10% of the 
outstanding votes entitled to be cast on any matter or beneficially own 
shares of stock of NYSE Group representing in the aggregate more than 
20% of the outstanding votes entitled to be cast on any matter.\13\ 
NYSE Group is required to disregard votes which are in excess of the 
voting restriction and to repurchase NYSE Group shares which are held 
in excess of the ownership restriction.\14\
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    \13\ See NYSE Group Certificate, Article IV Section 4(b)(1) and 
(2).
    \14\ See NYSE Group Certificate, Article IV Sections 4(b)(1)(A) 
and 4(b)(2)(D).
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     Under the Proposed Rule Change, the voting and ownership 
restrictions in the NYSE Group Certificate would be amended to apply 
only for so long as NYSE Group directly or indirectly controls any 
Regulated Subsidiary (as defined in the NYSE Group Certificate); and 
expand the definition of ``Related Persons'' regarding NYSE MKT Members 
so that it is consistent with the language in the NYSE Rules, which 
language also will be incorporated in the ICE Group Certificate and the 
NYX Holdings Operating Agreement pursuant to the Proposed Rule Change.
    Other Proposed Amendments to NYSE Group Certificate. Under the 
Proposed Rule Change, the NYSE Group Certificate also would be amended 
to make certain clarifications and technical edits (for example, to 
conform the use of defined terms and other provisions to be consistent 
with the other amendments to the NYSE Group Certificate set forth in 
the Proposed Rule Change).
    Proposed Amendments to constituent documents of the Exchange, NYSE 
MKT, NYSE Market and NYSE Regulation. Under the Proposed Rule Change, 
certain conforming changes will be made to the Fourth Amended and 
Restated Operating Agreement, dated as of August 23, 2012, of the 
Exchange (the ``Exchange Operating Agreement'') to reflect that certain 
nominations to the Board will be made by ICE Group rather than by NYSE 
Euronext. Substantially the same revisions would be made to the 
analogous provisions of the Third Amended and Restated Operating 
Agreement of NYSE MKT, the Second Amended and Restated Bylaws of NYSE 
Market and the Fourth Amended and Restated Bylaws of NYSE Regulation.

[[Page 39373]]

    Proposed Amendments to the Exchange Rules, NYSE MKT Rules, and NYSE 
Arca Equities Rules. Under the Proposed Rule Change, certain technical 
amendments would be made to the Exchange Rules, including replacing 
references to ``NYSE Euronext'' with references to ICE Group, and 
deleting definitions of ``member'' and ``member organization'' relating 
to NYSE MKT, which are currently set forth in Rule 2 for purposes of 
Section 1(L) of Article 5 of the current NYSE Euronext Certificate, 
because under the Proposed Rule Change, the ICE Group Certificate will 
incorporate this language. In addition, certain technical amendments 
would be made to the NYSE MKT Rules and NYSE Arca Equities Rules to 
replace references to ``NYSE Euronext'' with references to ICE Group.
    The Second Amended and Restated Certificate of Incorporation of 
IntercontinentalExchange Group, Inc. that will be effective as of the 
consummation of the Merger, the Amended and Restated Bylaws of 
IntercontinentalExchange Group, Inc. that will be effective as of the 
consummation of the Merger; the proposed Director Independence Policy 
of Intercontinental-Exchange Group, Inc. that will be adopted by the 
board of directors of IntercontinentalExchange Group, Inc. effective as 
of the consummation of the Merger; the resolutions of the NYSE Euronext 
Board of Directors; the proposed Amended and Restated Limited Liability 
Company Agreement of NYSE Euronext Holdings LLC that will be effective 
as of the consummation of the Merger; the proposed Third Amended and 
Restated Certificate of Incorporation of NYSE Group, Inc. that will be 
effective as of the consummation of the Merger; the proposed Fifth 
Amended and Restated Operating Agreement of New York Stock Exchange LLC 
that will be effective as of the consummation of the Merger; the 
proposed Fourth Amended and Restated Operating Agreement of NYSE MKT 
LLC that will be effective as of the consummation of the Merger; the 
proposed Third Amended and Restated Bylaws of NYSE Market (DE), Inc. 
that will be effective as of the consummation of the Merger; the 
proposed Fifth Amended and Restated Bylaws of NYSE Regulation, Inc. 
that will be effective as of the consummation of the Merger; the 
proposed amended Rules of the New York Stock Exchange, LLC that will be 
effective as of the consummation of the Merger; the proposed revised 
Director Independence Policy that will be adopted by the boards of 
directors of New York Stock Exchange, LLC, NYSE MKT LLC, NYSE Market 
(DE), Inc. and NYSE Regulation, Inc. effective as of the consummation 
of the Merger; the proposed amendments to the NYSE Trust Agreement, 
that will be effective as of the consummation of the Merger; the 
proposed amended Rules of NYSE MKT that will be effective as of the 
consummation of the Merger; and the proposed amended Rules of NYSE Arca 
Equities, Inc. that will be effective as of the consummation of the 
Merger are attached to the Proposed Rule Change as Exhibits 5A, 5B, 5C, 
5D, 5E, 5F, 5G, 5H, 5I, 5J, 5K, 5L, 5M, 5N and 5O, respectively.
    The text of the Proposed Rule Change is available at the Exchange, 
the Commission's Public Reference Room, and on the Web site of the 
Exchange (www.nyse.com). The text of Exhibits 5A through 5O to the 
Proposed Rule Change is also available on the Exchange's Web site and 
on the Commission's Web site (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 self-regulatory organization 
included statements concerning the purpose of, and basis for, the 
proposed rule change and discussed any comments it received on the 
proposed rule change. The text of those 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 parts of such statements.

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

1. Purpose
    The purpose of this rule filing is to adopt the rules necessary to 
permit NYSE Euronext to effect the Merger and to amend certain 
provisions of the organizational and other governance documents of NYSE 
Euronext, NYSE Group and certain of the U.S. Regulated Subsidiaries, 
including certain Exchange Rules, NYSE MKT Rules and NYSE Arca Equities 
Rules.
1. Overview of the Merger
    NYSE MKT is submitting the Proposed Rule Change to the Commission 
in connection with the Merger of NYSE Euronext and ICE. ICE Group 
believes the Merger brings together two highly complementary businesses 
and will create an end-to-end multi-asset portfolio that will be 
strongly positioned to serve a global client base and capture current 
and future growth opportunities.
    Other than as described herein and in the separate proposed rule 
changes filed by each NYSE Exchange, ICE Group and the NYSE Exchanges 
do not plan to make any changes to the regulated activities of the U.S. 
Regulated Subsidiaries in connection with the Merger. If ICE Group 
determines to make any such changes to the regulated activities of any 
U.S. Regulated Subsidiary, it will seek the approval of the Commission. 
The Proposed Rule Change, if approved by the Commission, will not be 
effective until the consummation of the Merger.
    The Merger will occur pursuant to the terms of the Merger 
Agreement. As a result of the Merger, NYX Holdings, the successor to 
NYSE Euronext, will be a subsidiary of ICE Group.
    In the Merger, NYSE Euronext, the indirect parent of NYSE MKT, will 
become a wholly owned subsidiary of ICE Group. ICE Group is currently a 
wholly owned subsidiary of ICE. ICE Group in turn has two wholly owned 
subsidiaries, ICE Merger Sub and NYSE Euronext Merger Sub. ICE Merger 
Sub will be merged with and into ICE, with ICE as the surviving 
corporation and a wholly owned subsidiary of ICE Group. Immediately 
afterward, NYSE Euronext will be merged with and into NYSE Euronext 
Merger Sub, with NYSE Euronext Merger Sub as the surviving company and 
a wholly owned subsidiary of ICE Group. The surviving entity in the 
NYSE Euronext Merger will change its name to NYSE Euronext Holdings LLC 
from and after the closing of the NYSE Euronext Merger.
    Under the terms of the Merger Agreement, each share of NYSE 
Euronext common stock will be converted into 0.1703 of a newly issued 
share of ICE Group common stock and $11.27 cash (together, the 
``Standard Merger Consideration''). NYSE Euronext stockholders may also 
elect to receive $33.12 in cash, or a stock election to receive 0.2851 
of a share of ICE Group common stock, for each of their NYSE Euronext 
shares. Both the cash election and the stock election are subject to 
proration and adjustment procedures to ensure that the total amount of 
cash paid, and the total number of shares of ICE Group common stock 
issued, in the NYSE Euronext Merger to the NYSE Euronext stockholders, 
as a whole, will be equal to the total amount of cash and number of 
shares that would have been paid and issued if all of the NYSE Euronext 
stockholders received the standard election amount. Following the

[[Page 39374]]

Merger, ICE Group common shares are expected to be listed on the New 
York Stock Exchange.
    The board of directors of ICE has determined that the Merger is in 
the best interests of its stockholders, approved the Merger Agreement 
and resolved to recommend to its stockholders that they approve the 
adoption of the Merger Agreement. The board of directors of NYSE 
Euronext has determined that the Merger is in the best interests of its 
stockholders, approved the Merger Agreement and resolved to recommend 
that its stockholders approve the adoption of the Merger Agreement.
2. Overview of ICE Group Following the Merger
    Following the Merger, ICE Group will be a for-profit, publicly 
traded Delaware corporation. ICE Group will hold all of the equity 
interests in ICE, which will continue its current operations, and in 
NYX Holdings, which will hold (1) 100% of the equity interests of NYSE 
Group (which, in turn, directly or indirectly holds 100% of the equity 
interests of the U.S. Regulated Subsidiaries) and (2) 100% of the 
equity interest of Euronext N.V. (which, in turn, directly or 
indirectly holds 100% of the equity interests in certain regulated 
trading markets in Belgium, France, the Netherlands, Portugal and the 
United Kingdom).
    ICE Group will amend its certificate and bylaws to incorporate 
ownership and voting limitations and certain other provisions to 
satisfy U.S. and European regulatory requirements as described in 
detail in the Proposed Rule Change.
    After the Merger, NYSE Group will be directly wholly owned by NYX 
Holdings and will continue to own, directly or indirectly, the three 
NYSE Exchanges--the Exchange, NYSE Arca and NYSE MKT--which provide 
marketplaces where investors buy and sell listed companies' common 
stock and other securities as well as equity options and securities 
traded on the basis of unlisted trading privileges. NYSE Regulation, 
Inc., an indirect not-for-profit subsidiary of NYX Holdings, will 
continue to oversee FINRA's performance of certain market surveillance 
and enforcement functions for the NYSE Exchanges, enforce listed 
company compliance with applicable standards, and oversee regulatory 
policy determinations, rule interpretation and regulation related rule 
development.
    In Europe, NYSE Euronext and its subsidiaries own European-based 
exchanges that comprise Euronext N.V. and its subsidiaries--the London, 
Paris, Amsterdam, Brussels and Lisbon stock exchanges, as well as the 
derivatives markets in London, Paris, Amsterdam, Brussels and Lisbon 
(with certain qualifications and exceptions set forth in the ICE Group 
Bylaws, the ``European Market Subsidiaries''). The activities of the 
NYSE Euronext European markets are or may be subject to the 
jurisdiction and authority of a number of European regulators, 
including the Dutch Minister of Finance, the French Minister of the 
Economy, the French Financial Market Authority (Autorit[eacute] des 
March[eacute]s Financiers), the French Authority of Prudential Control 
(Autorit[eacute] de Contr[ocirc]le Prudentiel), the Netherlands 
Authority for the Financial Markets (Autoriteit Financiele Markten), 
the Belgian Financial Services and Markets Authority (Autorit[eacute] 
des services et march[eacute]s financiers), the Portuguese Securities 
Market Commission (Comiss[atilde]o do Mercado de Valores 
Mobili[aacute]rios--CMVM) and the U.K. Financial Conduct Authority 
(FCA).
    NYSE Euronext and ICE expect that, after the closing of the Merger, 
Euronext will be separated from ICE Group, although no definitive plans 
have been made to pursue such a separation. An initial public offering 
of Euronext would include all of the European Market Subsidiaries (the 
continental European cash equity platforms and the derivatives traded 
on them) but would not include the derivatives businesses of another 
current subsidiary of Euronext, Liffe Administration and Management 
(``LAM''). ICE has informed NYSE Euronext that it expects the 
derivatives business of LAM will be gradually transitioned to ICE 
Futures Europe, subject to regulatory approval in the United Kingdom.
    The current NYSE Euronext Certificate and Bylaws provide that each 
provision related to any European Market Subsidiary or any European 
regulatory requirement will be automatically repealed if (i) NYSE 
Euronext at any time in the future no longer holds a direct or indirect 
``controlling interest'' (as defined therein) in Euronext or (ii) a 
``Euronext Call Option'' (as defined in the NYSE Euronext bylaws) has 
been exercised and, after a period of six months following such 
exercise, Stichting NYSE Euronext, a foundation (``stichting'') 
organized under the laws of The Netherlands, formed on April 4, 2007 
(the ``Foundation'') holds shares of Euronext that represent a 
substantial portion of Euronext's business (provided that, in this 
case, the NYSE Euronext board of directors approves the applicable 
revocation). The ICE Group Certificate and Bylaws would contain similar 
provisions, except that the standard in clause (i) above that ICE Group 
no longer holds a direct or indirect controlling interest in Euronext 
would be replaced by a standard that it ceases to control Euronext, 
with ``control'' defined by reference to International Financial 
Reporting Standards. The separation of Euronext as described above is 
expected to trigger the repeal described in clause (i) as so modified.
    Other than certain modifications described herein, the current 
corporate structure, governance and self-regulatory independence and 
separation of each U.S. Regulated Subsidiary will be preserved. 
Specifically, after the Merger, NYSE Group's businesses and assets will 
continue to be structured as follows:
     The Exchange will remain a direct wholly owned subsidiary 
of NYSE Group and an indirect wholly owned subsidiary of NYX Holdings.
     NYSE Market will remain a wholly owned subsidiary of the 
Exchange and will continue to conduct the Exchange's business.
     NYSE Regulation will remain a wholly owned subsidiary of 
the Exchange and continue to perform, and/or oversee the performance 
of, regulatory responsibilities of the Exchange pursuant to a 
delegation agreement with the Exchange and regulatory functions of NYSE 
Arca and NYSE MKT pursuant to services agreements with them.\15\
---------------------------------------------------------------------------

    \15\ Certain regulatory functions have been allocated to, and/or 
are otherwise performed by, FINRA.
---------------------------------------------------------------------------

     NYSE Arca and NYSE Arca L.L.C., a Delaware limited 
liability company, will remain wholly owned subsidiaries of NYSE Group.
     NYSE Arca Equities will remain a wholly owned subsidiary 
of NYSE Arca.
     NYSE MKT will remain a direct wholly owned subsidiary of 
NYSE Group and an indirect wholly owned subsidiary of NYX Holdings.
     The Merger will have no effect on the ability of any party 
to trade securities on the Exchange, NYSE Arca or NYSE MKT.
    Similarly, NYX Holdings, as successor to NYSE Euronext, and its 
subsidiaries will conduct their regulated activities in the same manner 
as they are currently conducted, with any changes subject to the 
relevant approvals of their respective European Regulators and, in the 
case of the U.S. Regulated Subsidiaries, with any changes subject to 
the approval of the Commission.
    ICE Group acknowledges that to the extent it becomes aware of 
possible violations of the rules of the Exchange, NYSE Arca or NYSE 
MKT, it will be

[[Page 39375]]

responsible for referring such possible violations to each such 
exchange, respectively. In addition, ICE Group will enter into an 
agreement with NYSE Regulation acknowledging that each of the Exchange, 
NYSE MKT and NYSE Arca has contracted to have NYSE Regulation perform 
its self-regulatory obligations, in each case with the self-regulatory 
organization retaining its responsibility for the adequate performance 
of those regulatory obligations, and agreeing to provide adequate 
funding to NYSE Regulation to allow NYSE Regulation to conduct its 
regulatory activities with respect to the Exchange, NYSE MKT and NYSE 
Arca.
3. Proposed Approval of Waiver of Voting and Ownership Restrictions of 
NYSE Euronext
    Article V of the current NYSE Euronext Certificate provides that 
(1) no person, either alone or together with its ``related persons'' 
(as defined in the NYSE Euronext Certificate), may be entitled to vote 
or cause the voting of shares of NYSE Euronext beneficially owned by 
such person or its related persons, in person or by proxy or through 
any voting agreement or other arrangement, to the extent that such 
shares represent in the aggregate more than 10% of the then outstanding 
votes entitled to be cast on such matter; and (2) no person, either 
alone or together with its related persons, may acquire the ability to 
vote more than 10% of the then outstanding votes entitled to be cast on 
any such matter by virtue of agreements or arrangements entered into 
with other persons to refrain from voting shares of stock of NYSE 
Euronext (the ``NYSE Euronext Voting Restriction'').\16\ NYSE Euronext 
must disregard any votes purported to be cast in excess of the NYSE 
Euronext Voting Restriction.\17\
---------------------------------------------------------------------------

    \16\ See Amended and Restated Certificate of Incorporation of 
NYSE Euronext, Article V Section 1.
    \17\ See Amended and Restated Certificate of Incorporation of 
NYSE Euronext, Article V Section 1(A).
---------------------------------------------------------------------------

    In addition, the NYSE Euronext Certificate provides that no person, 
either alone or together with its related persons, may at any time 
beneficially own shares of NYSE Euronext representing in the aggregate 
more than 20% of the then outstanding votes entitled to be cast on any 
matter (the ``NYSE Euronext Ownership Restriction'').\18\ If any 
person, either alone or together with its related persons, owns shares 
of NYSE Euronext in excess of the NYSE Euronext Ownership Restriction, 
then such person and its related persons are obligated to sell 
promptly, and NYSE Euronext is obligated to purchase promptly, at a 
price equal to the par value of such shares and to the extent funds are 
legally available for such purchase, the number of shares of NYSE 
Euronext necessary so that such person, together with its related 
persons, will beneficially own shares of NYSE Euronext representing in 
the aggregate no more than 20% of the then outstanding votes entitled 
to be cast on any matter, after taking into account that such 
repurchased shares will become treasury shares and will no longer be 
deemed to be outstanding.\19\
---------------------------------------------------------------------------

    \18\ See Amended and Restated Certificate of Incorporation of 
NYSE Euronext, Article V Section 2.
    \19\ See Amended and Restated Certificate of Incorporation of 
NYSE Euronext, Article V Section 2(D).
---------------------------------------------------------------------------

    The NYSE Euronext Voting Restriction and the NYSE Euronext 
Ownership Restriction are applicable to each person unless and until 
(1) Such person has delivered a notice in writing to the board of 
directors of NYSE Euronext, not less than 45 days (or such shorter 
period as the board of directors of NYSE Euronext expressly permits) 
prior to any vote or, in the case of the NYSE Euronext Ownership 
Restriction, prior to the acquisition of any shares of NYSE Euronext 
that would cause such person, either alone or together with its related 
persons, to exceed the NYSE Euronext Ownership Restriction, of such 
person's intention, either alone or together with its related persons, 
to vote or cause the voting of shares of NYSE Euronext stock 
beneficially owned by such person or its related persons in excess of 
the NYSE Euronext Voting Restriction, or in the case of the NYSE 
Euronext Ownership Restriction, of such person's intention, either 
alone or together with its related persons, to acquire such ownership; 
(2) the board of directors of NYSE Euronext has resolved to expressly 
permit such voting or ownership, as applicable; (3) such resolution has 
been filed with, and approved by, the Commission under Section 19(b) of 
the Exchange Act \20\ and has become effective thereunder; and (4) such 
resolution has been filed with, and approved by, each European 
Regulator having appropriate jurisdiction and authority. Subject to its 
fiduciary duties under applicable law, the NYSE Euronext board of 
directors may not adopt any resolution pursuant to clause (2) unless it 
has determined that the exercise of such voting rights (or the entering 
into of a voting agreement) or ownership, as applicable:
---------------------------------------------------------------------------

    \20\ 15 U.S.C. 78s(b).
---------------------------------------------------------------------------

     Will not impair the ability of any U.S. Regulated 
Subsidiary, NYSE Euronext or NYSE Group (if and to the extent that NYSE 
Group continues to exist as a separate entity) to discharge their 
respective responsibilities under the Exchange Act and the rules and 
regulations thereunder;
     will not impair the ability of any of the European Market 
Subsidiaries of NYSE Euronext or Euronext (to the extent that Euronext 
continues to exist as a separate entity) to discharge their respective 
responsibilities under the European Exchange Regulations (as defined in 
the NYSE Euronext Bylaws);
     is otherwise in the best interest of NYSE Euronext, its 
stockholders, the U.S. Regulated Subsidiaries and the European Market 
Subsidiaries, and will not impair the Commission's ability to enforce 
the Exchange Act or the European Regulators' ability to enforce the 
European Exchange Regulations;
     for so long as NYSE Euronext directly or indirectly 
controls the Exchange or NYSE Market, neither such person nor any of 
its related persons is a NYSE Member;
     for so long as NYSE Euronext directly or indirectly 
controls NYSE MKT, neither such person nor any of its related persons 
is a NYSE MKT Member (this restriction is currently set forth in the 
Bylaws of NYSE Euronext \21\);
---------------------------------------------------------------------------

    \21\ See NYSE Euronext Bylaws, Section 10.12.
---------------------------------------------------------------------------

     for so long as NYSE Euronext directly or indirectly 
controls NYSE Arca, NYSE Arca Equities or any facility of NYSE Arca, 
neither such person nor any of its related persons is an ETP Holder, an 
OTP Holder or an OTP Firm; and
     neither such person nor any of its related persons is a 
U.S. Disqualified Person or a European Disqualified Person (as such 
terms are defined in the NYSE Euronext Certificate).\22\
---------------------------------------------------------------------------

    \22\ See NYSE Euronext Certificate, Article V Sections 1(B), 
1(C), 2(B) and 2(C).
---------------------------------------------------------------------------

    In order to allow ICE Group to wholly own and vote all of the 
outstanding common stock of NYSE Euronext upon consummation of the 
Merger, ICE Group has delivered written notice to the board of 
directors of NYSE Euronext pursuant to the procedures set forth in the 
NYSE Euronext Certificate requesting approval of its voting and 
ownership of NYSE Euronext shares in excess of the NYSE Euronext Voting 
Restriction and the NYSE Euronext Ownership Restriction. Among other 
things, in this notice, ICE Group represented to the board of directors 
of NYSE Euronext that neither it, nor any of its related persons, is 
(1)

[[Page 39376]]

An NYSE Member; (2) an NYSE MKT Member; (3) an ETP Holder; (4) an OTP 
Holder or OTP Firm; or (5) a U.S. Disqualified Person or a European 
Disqualified Person.
    On [June 5] [sic], 2013, the board of directors of NYSE Euronext 
adopted by written consent the NYSE Euronext Resolutions to permit ICE 
Group, either alone or with its related persons, to exceed the NYSE 
Euronext Ownership Restriction and the NYSE Euronext Voting 
Restriction. In adopting such resolutions, the board of directors of 
NYSE Euronext made the necessary determinations set forth above and 
approved the submission of the Proposed Rule Change to the Commission. 
The U.S. Regulated Subsidiaries will continue to operate and regulate 
their markets and members exactly as they have done prior to the 
Merger. Except as set forth in the Proposed Rule Change, ICE Group is 
not proposing any amendments to their trading or regulatory rules.
    With respect to the ability of the Commission to enforce the 
Exchange Act as it applies to the U.S. Regulated Subsidiaries after the 
Merger, the U.S. Regulated Subsidiaries will operate in the same manner 
following the Merger as they operate today. Thus, the Commission will 
continue to have plenary regulatory authority over the U.S. Regulated 
Subsidiaries, as is the case currently with these entities. As 
described in the following sections of this filing, NYSE MKT is 
proposing the adoption of the ICE Group Certificate and Bylaws by ICE 
Group, the NYX Holdings Operating Agreement by NYX Holdings as the 
surviving entity of the NYSE Euronext Merger, which are modeled in 
large part on the current NYSE Euronext Certificate and Bylaws (with 
adjustments discussed below), and a series of amendments to the NYSE 
Group Certificate, that will create an ownership structure that will 
provide the Commission with appropriate oversight tools to ensure that 
the Commission will have the ability to enforce the Exchange Act with 
respect to each U.S. Regulated Subsidiary, its direct and indirect 
parent entities, and its directors, officers, employees and agents to 
the extent they are involved in the activities of such U.S. Regulated 
Subsidiary.
    The NYSE Euronext board of directors also determined that ownership 
of NYSE Euronext by ICE Group is in the best interests of NYSE 
Euronext, its stockholders and the U.S. Regulated Subsidiaries.
    An extract with the relevant provisions of the Euronext Resolutions 
is attached as Exhibit 5D to the Proposed Rule Change and can be found 
on NYSE MKT's Web site and the Commission's Web site.
    NYSE MKT hereby requests that the Commission approve the NYSE 
Euronext Resolutions and allow ICE Group, either alone or with its 
related persons, to own and vote all of the outstanding common stock of 
NYSE Euronext upon and following the consummation of the Merger.
4. Proposed Amendments to Ownership and Voting Restrictions After the 
Merger
Overview
    NYSE MKT is proposing that, effective as of the completion of the 
Merger, the ICE Group Certificate would contain voting and ownership 
restrictions that are substantially identical to those currently in the 
NYSE Euronext Certificate (except that they would apply only for so 
long as ICE Group directly or indirectly controls any U.S. Regulated 
Subsidiary or any European Market Subsidiary), and would restrict any 
person, either alone or together with its related persons, from having 
voting control over ICE Group shares entitling the holder thereof to 
cause more than 10% of the votes entitled to be cast on any matter or 
beneficially owning ICE Group shares representing more than 20% of the 
outstanding votes that may be cast on any matter.
    In addition, NYSE MKT is proposing that the Commission approve the 
NYX Holdings Operating Agreement, effective as of the consummation of 
the Merger, which would include voting and ownership provisions, as 
well as related waiver provisions, again substantially identical to 
those in the current NYSE Euronext Certificate and NYSE Euronext 
Bylaws, except that they would apply only in the event that ICE Group 
does not own all of the issued and outstanding membership interests in 
NYX Holdings and only for so long as NYX Holdings directly or 
indirectly controls any U.S. Regulated Subsidiary or any European 
Market Subsidiary.
Voting and Ownership Restrictions in the ICE Group Certificate
    Under the Proposed Rule Change, the ICE Group Certificate would 
provide that (1) no person, either alone or together with its related 
persons (as defined in the ICE Group Certificate), may be entitled to 
vote or cause the voting of shares of stock of ICE Group beneficially 
owned by such person or its related persons, in person or by proxy or 
through any voting agreement or other arrangement, to the extent that 
such shares represent in the aggregate more than 10% of the then 
outstanding votes entitled to be cast on such matter, and (2) no 
person, either alone or together with its related persons, may acquire 
the ability to vote more than 10% of the then outstanding votes 
entitled to be cast on any such matter by virtue of agreements or 
arrangements entered into with other persons to refrain from voting 
shares of stock of ICE Group (the ``ICE Group Voting 
Restriction'').\23\ The ICE Group Certificate will require ICE Group to 
disregard any votes purported to be cast in excess of the ICE Group 
Voting Restriction.
---------------------------------------------------------------------------

    \23\ See ICE Group Certificate, Article V Section A.
---------------------------------------------------------------------------

    In addition, the ownership restrictions in the ICE Group 
Certificate would provide that, if such restrictions apply, no person, 
either alone or together with its related persons, may at any time own 
beneficially shares of ICE Group representing in the aggregate more 
than 20% of the then outstanding votes entitled to be cast on any 
matter (the ``ICE Group Ownership Restrictions'').\24\ If any person, 
either alone or together with its related persons, owns shares of ICE 
Group in excess of the ICE Group Ownership Restriction, then such 
person and its related persons are obligated to sell promptly, and ICE 
Group is obligated to purchase promptly, at a price equal to the par 
value of such shares and to the extent funds are legally available for 
such purchase, the number of shares of ICE Group necessary so that such 
person, together with its related persons, will beneficially own shares 
of ICE Group representing in the aggregate no more than 20% of the then 
outstanding votes entitled to be cast on any matter, after taking into 
account that such repurchased shares will become treasury shares and 
will no longer be deemed to be outstanding.\25\
---------------------------------------------------------------------------

    \24\ See ICE Group Certificate, Article V Section B.
    \25\ See ICE Group Certificate, Article V Section B.4.
---------------------------------------------------------------------------

    The ICE Group Certificate would provide that the ICE Group Voting 
Restriction and the ICE Group Ownership Restriction would apply only 
for so long as ICE Group directly or indirectly controls any U.S. 
Regulated Subsidiary (as such term is defined in the ICE Group 
Certificate).
    The ICE Group Voting Restriction applies to each person unless and 
until (1) Such person has delivered a notice in writing to the board of 
directors of ICE Group, not less than 45 days (or such shorter period 
as the board of directors of ICE Group expressly permits) prior to any 
vote, of such person's intention, either alone or

[[Page 39377]]

together with its related persons, to vote or cause the voting of 
shares of ICE Group stock beneficially owned by such person or its 
related persons in excess of the ICE Group Voting Restriction; (2) the 
board of directors of ICE Group has resolved to expressly permit such 
voting; and (3) such resolution has been filed with, and approved by, 
the Commission under Section 19(b) of the Exchange Act \26\ and filed 
with, and approved by, the relevant European Regulators having 
appropriate jurisdiction and authority.\27\ Subject to its fiduciary 
duties under applicable law, the ICE Group board of directors may not 
adopt any resolution pursuant to the foregoing clause (2) unless the 
board has made certain determinations, which will be consistent with 
the determinations currently required to be made by the board of 
directors of NYSE Euronext in connection with a waiver of the NYSE 
Euronext Voting Restriction (as discussed above).\28\
---------------------------------------------------------------------------

    \26\ 15 U.S.C. 78s(b).
    \27\ See ICE Group Certificate, Article V Section A.2.
    \28\ See text accompanying notes 18-20 [sic] above. References 
to ICE Group would be added as appropriate in the context of a 
waiver of the ICE Group Voting Restriction. See ICE Group 
Certificate, Article V Section A.3.
---------------------------------------------------------------------------

    The ICE Group Ownership Restriction applies to each person unless 
and until (1) Such person has delivered a notice in writing to the 
board of directors of ICE Group, not less than 45 days (or such shorter 
period as the board of directors of ICE Group expressly permits) prior 
to the acquisition of any shares of ICE Group that would cause such 
person, either alone or together with its related persons, to exceed 
the ICE Group Ownership Restriction, of such person's intention, either 
alone or together with its related persons, to acquire such ownership; 
(2) the board of directors of ICE Group has resolved to expressly 
permit such ownership; and (3) such resolution has been filed with, and 
approved by, the Commission under Section 19(b) of the Exchange Act 
\29\ and filed with, and approved by, the relevant European Regulators 
having appropriate jurisdiction and authority.\30\ Subject to its 
fiduciary duties under applicable law, the ICE Group board of directors 
may not adopt any resolution pursuant to the foregoing clause (2) 
unless the board has made certain determinations, which will be 
consistent with the determinations currently required to be made by the 
board of directors of NYSE Euronext in connection with a waiver of the 
NYSE Euronext Ownership Restriction (as discussed above).\31\
---------------------------------------------------------------------------

    \29\ 15 U.S.C. 78s(b).
    \30\ See ICE Group Certificate, Article V Section B.2.
    \31\ See text accompanying notes 18-20 [sic] above. References 
to ICE Group would be added as appropriate in the context of a 
waiver of the ICE Group Ownership Restriction. See ICE Group 
Certificate, Article V Section B.3.
---------------------------------------------------------------------------

Amendments to NYSE Euronext Voting and Ownership Restrictions
    Under the Proposed Rule Change, the NYX Holdings Operating 
Agreement, although modeled substantially on the current NYSE Euronext 
Certificate and Bylaws, would reflect certain modifications from the 
analogous provisions in the NYSE Euronext Certificate and Bylaws, 
effective as of the Merger, to be consistent with the status of NYX 
Holdings as a wholly owned subsidiary of ICE Group and with provisions 
currently in the NYSE Group Certificate, and certain other changes to 
update the voting and ownership restrictions, in the following 
respects:
     The NYX Holdings Operating Agreement would provide that 
all issued and outstanding membership interests will be held by ICE 
Group, and that ICE Group may not transfer or assign any membership 
interests without approval by the Commission under the Exchange Act and 
the relevant European Regulators (as defined in the NYX Holdings 
Operating Agreement) under the applicable European Exchange Regulations 
(as defined in the NYSE Euronext Certificate).\32\
---------------------------------------------------------------------------

    \32\ The analogous provision in the NYSE Group Certificate is 
Article IV Section 4(a). See proposed NYX Holdings Operating 
Agreement, Article VII Sections 7.1 and 7.2.
---------------------------------------------------------------------------

     The NYX Holdings Operating Agreements would provide that 
the NYX Holdings voting and ownership restrictions contained therein 
would apply only in the event that ICE Group does not own all of the 
issued and outstanding membership interests of NYX Holdings,\33\ and 
only for so long as NYX Holdings directly or indirectly controls any 
U.S. Regulated Subsidiary (as defined in the NYX Holdings Operating 
Agreement).\34\
---------------------------------------------------------------------------

    \33\ The analogous provision in the NYSE Group Certificate is 
Article IV, Section 4(b). See proposed NYX Holdings Operating 
Agreement, Article IX Section 9.1.
    \34\ The analogous provision in the NYSE Group Certificate is 
Article IV Sections (b)(1) and (2). See proposed NYX Holdings 
Operating Agreement, Article VII Section 7.2.
---------------------------------------------------------------------------

     The definition of ``Related Persons'' would be expanded to 
provide that (1) in the case of a person that is a ``member'' (as 
defined in Section 3(a)(3)(A)(i) of the Exchange Act) of NYSE MKT, such 
person's ``Related Persons'' would include the ``member'' (as defined 
in Section 3(a)(3)(A)(ii), (iii) or (iv) of the Exchange Act) with 
which such person is associated; and (2) in the case of any person that 
is a ``member'' (as defined in 3(a)(3)(A)(ii), (iii) or (iv) of the 
Exchange Act) of NYSE MKT, such person's ``Related Persons'' would 
include any ``member'' (as defined in Section 3(a)(3)(A)(i) of the 
Exchange Act) that is associated with such person.\35\ A conforming 
change will be made in the NYSE Group Certificate, as discussed below.
---------------------------------------------------------------------------

    \35\ See proposed NYX Holdings Operating Agreement, Article I 
Section 1.1 (definition of Related Persons, clauses xi and xii).
---------------------------------------------------------------------------

     The mandatory repurchase of membership interests from a 
Person whose ownership represents in the aggregate more than 20% in 
interest of the interests entitled to vote on any matter would be at a 
price determined by reference to each incremental percentage ownership 
over 20% rather than at par value, specifically $1,000 for each 
percent.\36\
---------------------------------------------------------------------------

    \36\ See proposed NYX Holdings Operating Agreement, Article IX, 
Section 9.1(b)(4).
---------------------------------------------------------------------------

Amendments to NYSE Group Voting and Ownership Restrictions
    The voting restrictions contained in the current NYSE Group 
Certificate are substantially the same as those in the current NYSE 
Euronext Certificate described above, except that (i) the NYSE Group 
Certificate does not contain any references to European subsidiaries, 
markets or regulators, and (ii) the NYSE Group Certificate contains 
references to NYSE MKT members in its definition of ``Related Person'' 
that are not currently in NYSE Euronext.
    The NYSE Group Certificate would be updated to provide that
     the NYSE Group Voting Restriction and the NYSE Group 
Ownership Restriction would apply only in the event that NYX Holdings 
does not own all of the issued and outstanding shares of NYSE Group 
\37\ and only for so long as NYSE Group directly or indirectly controls 
any Regulated Subsidiary (as such term is defined in the NYSE Group 
Certificate).\38\
---------------------------------------------------------------------------

    \37\ NYSE Group Certificate, Article IV, Section 4(b).
    \38\ NYSE Group Certificate, Article IV, Sections 4(b)(1) and 
(2).
---------------------------------------------------------------------------

     The definition of ``Related Persons'' would be expanded to 
provide that (1) in the case of a person that is a ``member'' (as 
defined in Section 3(a)(3)(A)(i) of the Exchange Act) of NYSE MKT, such 
person's ``Related Persons'' would include the ``member'' (as defined 
in Section 3(a)(3)(A)(iv) of the Exchange Act, in addition to Sections 
3(a)(3)(A)(ii) and (iii) of the

[[Page 39378]]

Exchange Act, which are currently referenced in this provision of the 
NYSE Group Certificate) with which such person is associated; and (2) 
in the case of any person that is a ``member'' (as defined in Section 
3(a)(3)(A)(iv) of the Exchange Act, in addition to Sections 
3(a)(3)(A)(ii) and (iii) of the Exchange Act, which are currently 
referenced in this provision of the NYSE Group Certificate) of NYSE 
MKT, such person's ``Related Persons'' would include any ``member'' (as 
defined in Section 3(a)(3)(A)(i) of the Exchange Act) that is 
associated with such person.\39\ This conforms the definition of 
Related Person to that in the ICE Group Certificate and the NYX 
Holdings Operating Agreement.
---------------------------------------------------------------------------

    \39\ NYSE Group Certificate, Article IV, Sections 4(b)(1)(E)(vi) 
and (xii).
---------------------------------------------------------------------------

5. Additional Matters to be Addressed in the ICE Group Certificate and 
Bylaws \40\
---------------------------------------------------------------------------

    \40\ The ICE Group Certificate and Bylaws will also set forth 
certain restrictions and requirements relating to ICE Group's 
European subsidiaries and applicable European regulatory matters, 
which will be substantially consistent with the analogous 
restrictions and requirements applicable with respect to ICE Group's 
U.S. Regulated Subsidiaries and U.S. regulatory matters.
---------------------------------------------------------------------------

Jurisdiction Over Individuals
    Under the Proposed Rule Change, the ICE Group Bylaws would provide 
that ICE Group and its directors, and, to the extent that they are 
involved in the activities of the U.S. Regulated Subsidiaries, ICE 
Group's officers and those of its employees whose principal place of 
business and residence is outside the United States, would be deemed to 
irrevocably submit to the jurisdiction of the U.S. federal courts and 
the Commission for the purposes of any suit, action or proceeding 
pursuant to the U.S. federal securities laws, and the rules and 
regulations thereunder, commenced or initiated by the Commission 
arising out of, or relating to, the activities of the U.S. Regulated 
Subsidiaries. The ICE Group Bylaws would also provide that, with 
respect to any such suit, action, or proceeding brought by the 
Commission, ICE Group and its directors, officers and employees would 
(1) be deemed to agree that ICE Group may serve as U.S. agent for 
purposes of service of process in such suit, action, or proceedings 
relating to ICE Group or any of its subsidiaries; and (2) be deemed to 
waive, and agree not to assert by way of motion, as a defense or 
otherwise, in any such suit, action, or proceeding, any claims that it 
or they are not personally subject to the jurisdiction of the 
Commission, that the suit, action, or proceeding is an inconvenient 
forum or that the venue of the suit, action, or proceedings is 
improper, or that the subject matter thereof may not be enforced in or 
by the U.S. federal courts of the Commission.\41\
---------------------------------------------------------------------------

    \41\ See ICE Group Bylaws, Section 7.1.
---------------------------------------------------------------------------

    In addition, the ICE Group Bylaws would provide that, so long as 
ICE Group directly or indirectly controls any U.S. Regulated 
Subsidiary, the directors, officers and employees of ICE Group will be 
deemed to be directors, officers and employees of such U.S. Regulated 
Subsidiaries for purposes of, and subject to oversight pursuant to, the 
Exchange Act.\42\
---------------------------------------------------------------------------

    \42\ See ICE Group Bylaws, Section 8.4.
---------------------------------------------------------------------------

    The ICE Group Bylaws would provide that ICE Group will take 
reasonable steps necessary to cause its directors, officers and 
employees, prior to accepting a position as an officer, director or 
employee, as applicable, of ICE Group to agree and consent in writing 
to the applicability to them of these jurisdictional and oversight 
provisions with respect to their activities related to any U.S. 
Regulated Subsidiary.\43\
---------------------------------------------------------------------------

    \43\ See ICE Group Bylaws, Section 9.3.
---------------------------------------------------------------------------

    NYSE MKT anticipates that the functions and activities of each U.S. 
Regulated Subsidiary generally will be carried out by the officers and 
directors of such U.S. Regulated Subsidiary, over each of whom the 
Commission has direct authority pursuant to Section 19(h)(4) of the 
Exchange Act.\44\
---------------------------------------------------------------------------

    \44\ 15 U.S.C. 78s(h)(4).
---------------------------------------------------------------------------

Access to Books and Records
    Under the Proposed Rule Change, the ICE Group Bylaws would provide 
that for so long as ICE Group directly or indirectly controls any U.S. 
Regulated Subsidiary, the books, records and premises of ICE Group will 
be deemed to be the books, records and premises of such U.S. Regulated 
Subsidiaries for purposes of, and subject to oversight pursuant to, the 
Exchange Act.\45\ In addition, ICE's books and records related to the 
U.S. Regulated Subsidiaries will be maintained within the United 
States, except that to the extent that books and records may relate to 
both European subsidiaries and U.S. Regulated Subsidiaries, ICE Group 
may maintain such books and records either in the home jurisdiction of 
one or more European subsidiaries or in the United States.\46\ The ICE 
Group Bylaws also would provide that ICE's books and records will at 
all times be made available for inspection and copying by the 
Commission, and any U.S. Regulated Subsidiary to the extent they are 
related to the activities of the U.S. Regulated Subsidiary or any other 
U.S. Regulated Subsidiary over which such U.S. Regulated Subsidiary has 
regulatory authority or oversight.\47\
---------------------------------------------------------------------------

    \45\ See ICE Group Bylaws, Section 8.4.
    \46\ See ICE Group Bylaws, Sections 8.5 and 8.6.
    \47\ See ICE Group Bylaws, Section 8.3.
---------------------------------------------------------------------------

Additional Matters
    Under the Proposed Rule Change, the ICE Group Bylaws would provide 
that ICE Group will comply with the U.S. federal securities laws and 
the rules and regulations thereunder, and will cooperate with the 
Commission and with the U.S. Regulated Subsidiaries pursuant to and to 
the extent of their respective regulatory authority.\48\ In addition, 
ICE Group would be required to take reasonable steps necessary to cause 
its agents to cooperate with the Commission and, where applicable, the 
U.S. Regulated Subsidiaries pursuant to their regulatory authority.\49\ 
The ICE Group Bylaws would also provide that, in discharging his or her 
responsibilities as a member of the ICE Group board of directors or as 
an officer or employee of ICE Group, each such director, officer or 
employee will (a) Comply with the U.S. federal securities laws and the 
rules and regulations thereunder; (b) cooperate with the Commission; 
and (c) cooperate with the U.S. Regulated Subsidiaries pursuant to and 
to the extent of their regulatory authority (but this provision will 
not create any duty owed by any director, officer or employee of ICE 
Group to any person to consider, or afford any particular weight to, 
any such matters or to limit his or her consideration of such 
matters).\50\
---------------------------------------------------------------------------

    \48\ See ICE Group Bylaws, Section 9.1.
    \49\ See id.
    \50\ See ICE Group Bylaws, Section 3.14(b).
---------------------------------------------------------------------------

    The ICE Group Bylaws would also provide that all confidential 
information that comes into the possession of ICE Group pertaining to 
the self-regulatory function of any U.S. Regulated Subsidiary will (a) 
Not be made available to any persons other than to those officers, 
directors, employees and agents of ICE Group that have a reasonable 
need to know the contents thereof; (b) be retained in confidence by ICE 
Group and the officers, directors, employees and agents of ICE Group; 
and (c) not be used for any commercial purposes.\51\ In addition, the 
ICE Group Bylaws would provide that these obligations regarding such 
confidential information will not be interpreted so as to limit or 
impede (i) the rights of the Commission or the relevant U.S. Regulated 
Subsidiary to have access to and examine such confidential

[[Page 39379]]

information pursuant to the U.S. federal securities laws and the rules 
and regulations thereunder; or (ii) the ability of any officers, 
directors, employees or agents of ICE Group to disclose such 
confidential information to the Commission or any U.S. Regulated 
Subsidiary.\52\
---------------------------------------------------------------------------

    \51\ See ICE Group Bylaws, Section 8.1.
    \52\ See ICE Group Bylaws, Section 8.2.
---------------------------------------------------------------------------

    In addition, the ICE Group Bylaws would provide that ICE Group and 
its directors, officers and employees will give due regard to the 
preservation of the independence of the self-regulatory function of the 
U.S. Regulated Subsidiaries (to the extent of each U.S. Regulated 
Subsidiary's self-regulatory function) and to its obligations to 
investors and the general public, and will not take any actions that 
would interfere with the effectuation of any decisions by the board of 
directors or managers of any U.S. Regulated Subsidiary relating to its 
regulatory responsibilities (including enforcement and disciplinary 
matters) or that would interfere with the ability of such U.S. 
Regulated Subsidiary to carry out its responsibilities under the 
Exchange Act.\53\
---------------------------------------------------------------------------

    \53\ See ICE Group Bylaws, Section 9.4.
---------------------------------------------------------------------------

    Finally, the ICE Group Bylaws would provide that each director of 
ICE Group would, in discharging his or her responsibilities, to the 
fullest extent permitted by applicable law, take into consideration the 
effect that ICE Group's actions would have on the ability of (a) the 
U.S. Regulated Subsidiaries to carry out their responsibilities under 
the Exchange Act; and (b) the U.S. Regulated Subsidiaries, NYSE Group 
and ICE Group to (1) Engage in conduct that fosters and does not 
interfere with the ability of the U.S. Regulated Subsidiaries, NYSE 
Group (if and to the extent that NYSE Group continues to exist as a 
separate entity), and ICE Group to prevent fraudulent and manipulative 
acts and practices in the securities markets; (2) promote just and 
equitable principles of trade in the securities markets; (3) foster 
cooperation and coordination with persons engaged in regulating, 
clearing, settling, processing information with respect to, and 
facilitating transactions in securities; (4) remove impediments to and 
perfect the mechanisms of a free and open market in securities and a 
U.S. national securities market system; and (5) in general, protect 
investors and the public interest.\54\
---------------------------------------------------------------------------

    \54\ See ICE Group Bylaws, Section 3.14(a). This requirement 
would not, however, create any duty owed by any director, officer or 
employee of ICE Group to any person to consider, or afford any 
particular weight to, any of the foregoing matters or to limit his 
or her consideration to such matters. See ICE Group Bylaws, Section 
3.14(c).
---------------------------------------------------------------------------

Amendments to the ICE Group Certificate and Bylaws
    Under the Proposed Rule Change, the ICE Group Bylaws would provide 
that, before any amendment to or repeal of any provision of the ICE 
Group Bylaws shall be effective, such amendment or repeal shall be 
submitted to the board of directors of each U.S. Regulated Subsidiary 
(or the boards of directors of their successors) and if any or all of 
such boards of directors determine that, before such amendment or 
repeal may be effectuated, the same must be filed with, or filed with 
and approved by, the Commission pursuant to Section 19 of the Exchange 
Act and the rules promulgated thereunder, then the same will not be 
effectuated until filed with, or filed with and approved by, the 
Commission, as the case may be.\55\ These requirements would also apply 
to any action by ICE Group that would have the effect of amending or 
repealing any provisions of the ICE Group Certificate.\56\
---------------------------------------------------------------------------

    \55\ See ICE Group Bylaws, Section 11.3.
    \56\ See ICE Group Certificate, Article X(C).
---------------------------------------------------------------------------

ICE Group Director Independence Policy
    Under the Proposed Rule Change, ICE Group would adopt the ICE Group 
Independence Policy in the form attached to the Proposed Rule Change as 
Exhibit 5C, which would be substantially similar to the current 
Independence Policy of the NYSE Euronext board of directors.
6. Proposed Amendments to Certain Public-Company-Related and Other 
Provisions of the NYSE Euronext Certificate and Bylaws To Be Reflected 
in the NYX Holdings Operating Agreement
    NYSE MKT is proposing that the NYX Holdings Operating Agreement 
differ from NYSE Euronext's Certificate and Bylaws to reflect the fact 
that, after the Merger, NYX Holdings will be an intermediate holding 
company, will not be a public company traded on an exchange and will 
not have securities registered under Section 12 of the Exchange Act. As 
a result, NYX Holdings will not be subject to the Exchange's listing 
standards or to the corporate governance requirements applicable to 
publicly traded companies.
    As summarized below, the following revisions to the NYSE Euronext 
Certificate and Bylaws are proposed for the NYX Holdings Operating 
Agreement in order (1) To simplify and provide for a more efficient 
governance and capital structure that is appropriate for a wholly owned 
subsidiary; (2) to conform certain provisions to analogous provisions 
of the current organizational documents of NYSE Group, which is a 
wholly owned subsidiary of NYSE Euronext, just as NYX Holdings will be 
a wholly owned subsidiary of ICE Group following completion of the 
Merger; and (3) to make certain clarifications and technical edits (for 
example, to conform the use of defined terms and other provisions, to 
update cross-references to sections both internal and in the ICE Group 
Certificate and Bylaws, and to conform to certain other provisions in 
the ICE Group Certificate and Bylaws).
     The NYSE Euronext Certificate and Bylaws contain 
provisions relating to the issuance of one or more series of preferred 
stock. The NYX Holdings Operating Agreement provides for only one class 
of membership interest and has no provision for a preferred membership 
interest because NYSE MKT considers it unlikely that a wholly owned 
subsidiary would have occasion to issue preferred interests.
     Section 16.1 of the NYX Holdings Operating Agreement would 
provide that, for so long as NYX Holdings controls, directly or 
indirectly, any U.S. Regulated Subsidiary, before any amendment to the 
NYX Holdings Operating Agreement may be effectuated, such amendment 
would need to be submitted to the board of directors of each U.S. 
Regulated Subsidiary and, if so determined by any such board, would 
need to be filed with, or filed with and approved by, the Commission 
before such amendment may become effective. This provision parallels 
Article X(C) of the NYSE Euronext Certificate as supplemented, with 
respect to NYSE MKT, by Section 10.13 of the NYSE Euronext Bylaws.
     The NYX Holdings Operating Agreement would provide that 
the registered office and agent of NYX Holdings in Delaware will be the 
Corporation Trust Company, which is the registered agent of other 
subsidiaries of NYSE Euronext and of ICE.
     Section 3.1 of the NYSE Euronext Bylaws currently provides 
that the number of directors may be fixed and changed only by 
resolution adopted by two-thirds of the directors then in office. The 
two-thirds requirement will be changed to a majority in Section 3.2 of 
the NYX Holdings Operating Agreement as is appropriate for a wholly 
owned subsidiary. This standard has been eliminated from the list of 
provisions that are automatically suspended or become void upon certain 
events

[[Page 39380]]

specified in Section 10.11 of the NYX Holdings Operating Agreement.
     Certain residency requirements applicable to directors and 
officers of NYSE Euronext and references to U.S. and European director 
domiciles and to ``Deputy'' officers that appear in the NYSE Euronext 
Certificate and Bylaws would not be included in the NYX Holdings 
Operating Agreement. Specifically, references to deputies in Section 
2(A) of Article VI of the NYSE Euronext Certificate, and in Sections 
2.2(3) and (5), Section 2.5, Section 3.12, Section 5.1, Section 10.4 
and Section 10.5 of the NYSE Euronext Bylaws would not be replicated in 
the NYX Holdings Operating Agreement. Additionally, Section 4.4 of the 
NYSE Euronext Bylaws (regarding domicile requirements for members of 
the Nominating and Governance Committee of the board of directors) and 
the reference thereto in Section 4.1 would not be replicated in the NYX 
Holdings Operating Agreement. All, or the portions regarding director 
and officer domicile, of the following sections of the NYSE Euronext 
Bylaws would not be replicated in the NYX Holdings Operating Agreement: 
all of Section 3.2 (regarding director domicile requirements); all of 
Section 3.3 (regarding chairman and chief executive officer domicile 
requirements); portions of Section 3.6 (regarding filling of vacancies 
on the board); and the cross-references in Section 10.11(B) to the 
foregoing deleted provisions. In addition, the requirement in Section 
3.8 of the NYSE Euronext Bylaws that board meetings be held with equal 
frequency in the United States and Europe would be replaced with a 
requirement that one board meeting a year be held in Europe, to 
parallel the requirement in the ICE Group Bylaws.
     The restrictions on transfers of certain shares of NYSE 
Euronext common stock contained in Section 4 of Article IV of the NYSE 
Euronext Certificate have expired in accordance with their terms and 
would not be included in the NYX Holdings Operating Agreement.
     Notice of meetings of members would not be required under 
the NYX Holdings Operating Agreement if waived in accordance with 
Section 8.1(e) thereof.
     The ICE Group Bylaws provide in Section 2.5 that the 
holders of a majority of the shares outstanding and entitled to vote 
(giving effect to the ``Recalculated Voting Limitation'' referred to in 
Section A.1 of Article V of the ICE Group Certificate, if applicable) 
may call special meetings of stockholders. A comparable provision is 
appropriate for NYX Holdings to provide additional flexibility to ICE 
Group to take actions in its capacity as the sole member of NYX 
Holdings following completion of the Merger. Accordingly, Section 
8.1(d) of the NYX Holdings Operating Agreement would allow the holders 
of a majority of the membership interests outstanding and entitled to 
vote (giving effect to the ``Recalculated Voting Limitation,'' if 
applicable) to call special meetings of members.
     The requirement in Section 2.6 of the NYSE Euronext Bylaws 
for the appointment of an inspector of elections for stockholders 
meetings would not be included in the NYX Holdings Operating Agreement 
because the requirement for an inspector of elections under the 
Delaware General Corporation Law (the ``DGCL'') would no longer apply 
to NYX Holdings after completion of the Merger.\57\
---------------------------------------------------------------------------

    \57\ See Section 231(e) of the Delaware General Corporation Law.
---------------------------------------------------------------------------

     The requirement in Section 2.7 of the NYSE Euronext Bylaws 
that directors be elected by a majority of the votes cast (and that 
they must tender their resignation if such a majority vote is not 
received), except in the case of contested elections, and that the 
board of directors may fill any resulting vacancy or may decrease the 
size of the board, would not be included in the NYX Holdings Operating 
Agreement, and a plurality voting standard would be adopted for all 
director elections. These requirements would no longer serve any 
purpose after NYX Holdings becomes wholly owned by a single member.
     Section 2.10 of the NYSE Euronext Bylaws requires certain 
advance notice from stockholders of director nominations and 
stockholder proposals, and that only business brought before a special 
meeting of stockholders pursuant to NYX Euronext's notice of the 
meeting may be brought before the meeting. This provision would not be 
included in the NYX Holdings Operating Agreement because the 
requirements would no longer serve any purpose after NYX Holdings 
becomes wholly owned by a single member.
     In order to give ICE Group additional flexibility to take 
actions in its capacity as the sole member of NYX Holdings following 
completion of the Merger, Section 7.5 of the NYX Holdings Operating 
Agreement would allow the member to take any action without a meeting 
and without prior notice if consented to, in writing, by the member.
     In order to give ICE Group additional flexibility to take 
actions in its capacity as the sole member of NYX Holdings following 
completion of the Merger, Section 3.4 of the NYX Holdings Operating 
Agreement would allow members to fill board vacancies.
     The requirements in Article X of the NYSE Euronext 
Certificate for a supermajority stockholder vote to amend or repeal 
certain provisions of the certificate would be eliminated from the NYX 
Holdings Operating Agreement and a majority vote requirement would 
apply. A supermajority vote requirement would no longer serve any 
purpose after NYX Holdings becomes wholly owned by a single member, and 
a majority voting standard is consistent with the standard generally 
applicable for actions by the parent entity of other wholly owned 
subsidiaries of NYX Holdings.
     Section 3.4 of the NYX Holdings Operating Agreement, which 
is analogous to current Section 3.6 of the NYSE Euronext Bylaws, would 
include ``(if any)'' after the reference therein to the Nominating and 
Governance Committee, because NYX Holdings would become a wholly owned 
subsidiary of ICE Group and, as such, may not have a Nominating and 
Governance Committee.
     Section 3.4 of the NYSE Euronext Bylaws, which relates to 
independence requirements, including the requirement that at least 75% 
of the board must be independent, would not be replicated in the NYX 
Holdings Operating Agreement because NYX Holdings would be a wholly 
owned subsidiary of ICE Group after completion of the Merger and, 
therefore, it is likely that executives of ICE Group and its 
subsidiaries will serve on this board.
     Section 3.8(a) of the NYX Holdings Operating Agreement 
would provide that notice of board meetings is not required if waived 
in accordance with Section 3.8(b), which is less restrictive than 
Section 3.9 of the NYSE Euronext Bylaws.
     The advance notice period in Section 3.9 of the NYSE 
Euronext Bylaws for notices of board meetings sent by first-class mail 
would be reduced from four days to three days in Section 3.8(a) of the 
NYX Holdings Operating Agreement. This change conforms the notice 
period to Section 3.6(b) of the ICE Group Bylaws.
     Section 3.12 of the NYSE Euronext Bylaws requires that, if 
the chairman or deputy chairman of the board of directors is also the 
chief executive officer or deputy chief executive officer, he or she 
may not participate in executive sessions of the board of directors, 
and if the chairman is not the chief executive officer or deputy chief

[[Page 39381]]

executive officer, he or she will act as a liaison between the board of 
directors and the chief executive officer or the deputy chief executive 
officer. No analogous provisions would be included in the NYX Holdings 
Operating Agreement.
     Certain aspects of the indemnification and expense 
advancement provisions in Section 15.2 of the NYX Holdings Operating 
Agreement, including the terms of any insurance policy maintained by 
NYX Holdings, would be simplified from Section 10.6 of the NYSE 
Euronext Bylaws in light of the fact that there are not expected to be 
any independent, non-executive directors of NYX Holdings, and, 
therefore, a more streamlined process for indemnification claims is 
appropriate.
     Section 10.10(A) of the NYSE Euronext Bylaws enumerates 
provisions of the Bylaws for which amendment requires approval by a 
supermajority of directors. The supermajority approval requirement 
would be eliminated in Section 16.1 of the NYX Holdings Operating 
Agreement by decreasing the current two-thirds standard to a majority 
of the directors then in office, as is appropriate for a wholly owned 
subsidiary.
     The supermajority stockholder vote requirements in Section 
10.10(B) of the NYSE Euronext Bylaws would be eliminated in the NYX 
Holdings Operating Agreement because a supermajority vote requirement 
would no longer serve any purpose after NYX Holdings becomes wholly 
owned by a single member.
     The NYSE Euronext Bylaw provisions that are subject to 
automatic suspension under Section 10.11 would be revised in Section 
16.3 of the NYX Holdings Operating Agreement to reflect elimination of 
the supermajority voting provisions in Sections 10.10(A) and (B) 
discussed above.
    In addition, the current Independence Policy of the NYSE Euronext 
board of directors would, effective as of the Merger, cease to apply.
7. Proposed Amendments to the NYSE Group Certificate
    Under the Proposed Rule Change, the revisions summarized below to 
the NYSE Group Certificate are proposed in order to conform certain 
provisions to the analogous provisions of the organizational documents 
of NYX Holdings, which would likewise be a wholly owned subsidiary of 
ICE Group following completion of the Merger, as well as to make 
certain clarifications and technical edits:
     Section 4(a) of Article IV of the NYSE Group Certificate 
would be amended to contemplate successors to NYSE Euronext as the 
holder of all of the issued and outstanding shares of NYSE Group for 
purposes of the NYSE Trust Agreement.
     Sections 4(b)(1)(A) and 4(b)(2)(A) of Article IV of the 
NYSE Group Certificate would be amended to clarify that the voting 
ownership concentration limitations in the NYSE Group Certificate would 
be effective ``for so long as the Corporation shall control, directly 
or indirectly'' a U.S. Regulated Subsidiary, as defined in Section 
4(b)(1)(A). Conforming changes relating to the definition of U.S. 
Regulated Subsidiary and the change of name of NYSE Alternext to NYSE 
MKT have been made later in the same section and thereafter.
     Typographical errors in references to Exchange Act Section 
3(a)(3) would be corrected in Section 4(b)(1)(E)(vi) and (xii) of 
Article IV.
     Section 3 of Article V would be amended by adding the 
words ``from time to time'' to conform the provision to the NYX 
Holdings Operating Agreement.
     Section 5 of Article V of the NYSE Group Certificate would 
be amended to clarify that the right of the NYSE Group board of 
directors to remove directors is subject to any rights of holders of 
any preferred stock in order to make this provision consistent with 
Section 2 of Article IV of the NYSE Group Certificate, which provides 
that preferred stock may be issued that may have voting rights.
     Numbering of certain sections of the NYSE Group 
Certificate would be updated to reflect the amendments set forth above.
8. Proposed Amendments to Board Composition Requirements for the 
Exchange, NYSE MKT, NYSE Market and NYSE Regulation
    The Fourth Amended and Restated Operating Agreement, dated as of 
August 23, 2012, of the Exchange (the ``Exchange Operating 
Agreement''), currently provides that (1) a majority of the members of 
the Exchange's board of directors must be U.S. persons and members of 
the board of directors of NYSE Euronext, and (2) at least 20% of the 
Exchange's board members must be persons who are not members of the 
board of directors of NYSE Euronext but who qualify as independent 
under the independence policy of the Exchange's board of directors (the 
``Non-Affiliated Exchange Directors'').\58\ The nominating and 
governance committee of the NYSE Euronext board of directors is 
required to designate as Non-Affiliated Exchange Directors the 
candidates recommended jointly by the Director Candidate Recommendation 
Committees of each of NYSE Market and NYSE Regulation or, in the event 
there are Petition Candidates (as such term is defined in the Exchange 
Operating Agreement), the candidates that emerge from a specified 
process will be designated as the Non-Affiliated Exchange 
Directors.\59\
---------------------------------------------------------------------------

    \58\ See Exchange Operating Agreement, Section 2.03(a).
    \59\ See id.
---------------------------------------------------------------------------

    Under the Proposed Rule Change, these provisions would be amended 
to refer to ICE Group instead of NYSE Euronext. Also, references 
throughout to the Exchange's ``Corporation Independence Policy'' would 
be changed to ``Company Independence Policy'' in recognition of the 
form of organization of the Exchange.
    Substantially the same revisions would be made to the analogous 
provisions of the Fourth Amended and Restated Operating Agreement of 
NYSE MKT.
    In addition, references to NYSE Euronext in the Director 
Independence Policy of each of the Exchange, NYSE Market, NYSE 
Regulation and NYSE MKT would be revised to refer to ICE Group.
9. Other Changes to the Constituent Documents of the Exchange, NYSE 
MKT, NYSE Market and NYSE Regulation
    The revisions to the Fourth Amended and Restated Operating 
Agreement of NYSE MKT indicate that NYSE MKT will be an indirect wholly 
owned subsidiary of ICE Group rather than a direct subsidiary of NYSE 
Euronext, and the phrase ``NYSE/Amex'' has been inserted before 
references to a merger in 2008 in the recitals to distinguish that 
merger from the Merger.
    The Second Amended and Restated Bylaws of NYSE Market and the Third 
Amended and Restated Bylaws of NYSE Regulation would be amended to 
reflect the change from NYSE Euronext to ICE Group. In the case of NYSE 
Market, the address of the registered office and registered agent has 
been updated.
    In the director independence policies, typographical errors in 
references to Exchange Act Section 3(a)(3) would be corrected in the 
first paragraph under the section captioned ``Independence 
Qualifications.''

[[Page 39382]]

10. Proposed Amendments to the Exchange Rules, NYSE MKT Rules and NYSE 
Arca Equities Rules
    Under the Proposed Rule Change, certain technical amendments would 
be made to the Exchange Rules. First, references therein to ``NYSE 
Euronext'' would be replaced with references to ICE Group, except that 
references to NYSE Euronext in Rule 22 and Rule 422 would be replaced 
with references to NYX Holdings and references to ICE Group would be 
added. Second, Rule 2 would be revised to delete the definitions of 
``member'' and ``member organization'' relating to NYSE MKT, which are 
set forth in Rule 2 for purposes of Section 1(L) of Article 5 of the 
NYSE Euronext Certificate, because under the Proposed Rule Change, the 
ICE Group Certificate will incorporate this language.
    In addition, certain technical amendments would be made to the NYSE 
MKT Rules and NYSE Arca Equities Rules to replace references to ``NYSE 
Euronext'' with references to ICE Group, except that references to NYSE 
Euronext in NYSE MKT Rules 107B and 501 would be changed to NYX 
Holdings. Also, certain provisions in NYSE MKT Rule 104T relating to 
restrictions on transfer in the NYSE Euronext Certificate would be 
eliminated because the referenced restrictions are no longer in effect 
and there will be no analogous provision in the ICE Group Certificate.
2. Statutory Basis
    NYSE MKT believes that this filing is consistent with Section 6(b) 
of the Exchange Act \60\ in general, and furthers the objectives of 
Section 6(b)(1) \61\ in particular, in that it enables NYSE MKT to be 
so organized as to have the capacity to be able to carry out the 
purposes of the Exchange Act and to comply, and to enforce compliance 
by its exchange members and persons associated with its exchange 
members, with the provisions of the Exchange Act, the rules and 
regulations thereunder, and the rules of NYSE MKT. With respect to the 
ability of the Commission to enforce the Exchange Act as it applies to 
the U.S. Regulated Subsidiaries after the Merger, the U.S. Regulated 
Subsidiaries will operate in the same manner following the Merger as 
they operate today. Thus, the Commission will continue to have plenary 
regulatory authority over the U.S. Regulated Subsidiaries, as is the 
case currently with these entities. The Proposed Rule Change is 
consistent with and will facilitate an ownership structure that will 
provide the Commission with appropriate oversight tools to ensure that 
the Commission will have the ability to enforce the Exchange Act with 
respect to each U.S. Regulated Subsidiary, its direct and indirect 
parent entities and its directors, officers, employees and agents to 
the extent they are involved in the activities of such U.S. Regulated 
Subsidiary.
---------------------------------------------------------------------------

    \60\ 15 U.S.C. 78f(b).
    \61\ 15 U.S.C. 78f(b)(1).
---------------------------------------------------------------------------

    NYSE MKT also believes that this filing furthers the objectives of 
Section 6(b)(5) of the Exchange Act \62\ because the Proposed Rule 
Change summarized herein would be consistent with and facilitate a 
governance and regulatory structure that is designed to prevent 
fraudulent and manipulative acts and practices, to promote just and 
equitable principles of trade, to foster cooperation and coordination 
with persons engaged in regulating, clearing, settling, processing 
information with respect to, and facilitating transactions in 
securities, to remove impediments to, and perfect the mechanism of a 
free and open market and a national market system and, in general, to 
protect investors and the public interest.
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    \62\ 15 U.S.C. 78f(b)(5).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    NYSE MKT does not believe that the Proposed Rule Change will impose 
any burden on competition that is not necessary or appropriate in 
furtherance of the purposes of the Exchange Act. The Proposed Rule 
Change is not designed to address any competitive issue in the U.S. or 
European securities markets or have any impact on competition in those 
markets; rather, it will combine the U.S. equities businesses of NYSE 
Euronext with the commodities and futures businesses of ICE. The 
ownership of U.S. securities exchanges will not become more 
concentrated as a result of the Proposed Rule Change because ICE 
currently owns no U.S. securities exchange. With respect to operations 
outside the United States, ICE has informed NYSE Euronext that it 
expects the derivatives business of LAM will be gradually transitioned 
to ICE Futures Europe, as discussed above, but such transition is 
subject to regulatory approval in the United Kingdom.

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

    No written comments were solicited or received with respect to the 
proposed rule change.

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

    Within 45 days of the date of publication of this notice in the 
Federal Register or within such longer period up to 90 days (i) as the 
Commission may designate if it finds such longer period to be 
appropriate and publishes its reasons for so finding or (ii) as to 
which the self-regulatory organization consents, the Commission will:
    (A) By order approve or disapprove the proposed rule change, or
    (B) Institute proceedings to determine whether the proposed rule 
change should be disapproved.

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
File No. SR-NYSEMKT-2013-50 on the subject line.

Paper Comments

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

All submissions should refer to File No. SR-NYSEMKT-2013-50. This file 
number should be included on the subject line if email 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 Web site (http://www.sec.gov/rules/sro.shtml). Copies 
of the submission, all subsequent amendments, all written statements 
with respect to the proposed rule change that are filed with the 
Commission, and all written communications relating to the proposed 
rule change between the Commission and any person, other than those 
that may be withheld from the public in accordance with the provisions 
of 5 U.S.C. 552, will be available for Web site viewing and printing in 
the Commission's Public Reference Room, 100 F Street NE., Washington, 
DC 20549, on official business days between the hours of 10:00 a.m. and 
3:00 p.m. Copies of such

[[Page 39383]]

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 No. SR-NYSEMKT-2013-50 and should be submitted on or before July 
22, 2013.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\63\
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    \63\ 17 CFR 200.30-3(a)(12).
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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2013-15631 Filed 6-28-13; 8:45 am]
BILLING CODE 8011-01-P