Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change in Connection With the Proposed Acquisition of The Amex Membership Corporation, 46685-46689 [E8-18422]

Download as PDF Federal Register / Vol. 73, No. 155 / Monday, August 11, 2008 / Notices For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.6 Florence E. Harmon, Acting Secretary. [FR Doc. E8–18387 Filed 8–8–08; 8:45 am] BILLING CODE 8010–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–58306; File No. SR– NYSEArca–2008–82] Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change in Connection With the Proposed Acquisition of The Amex Membership Corporation August 5, 2008. rmajette on PRODPC74 with NOTICES Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (‘‘Exchange Act’’) 1 and Rule 19b–4 thereunder,2 notice is hereby given that on July 31, 2008, NYSE Arca, Inc. (‘‘NYSE Arca’’ or ‘‘Exchange’’) filed with the Securities and Exchange Commission (‘‘Commission’’) the proposed rule change as described in Items I and II below, which Items have been substantially prepared by the Exchange. The Exchange filed the proposal pursuant to Section 19(b)(3)(A) of the Exchange Act 3 and Rule 19b– 4(f)(6) thereunder,4 which renders the proposal effective upon filing with the Commission. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons. I. Self-Regulatory Organization’s Statement of the Terms of Substance of the Proposed Rule Change The Exchange, a Delaware Corporation and registered national securities exchange is submitting this proposed rule change to the Commission in connection with the proposed acquisition of The Amex Membership Corporation (‘‘MC’’), a New York not-for-profit corporation that owns 100% (99% directly and 1% indirectly through a wholly owned subsidiary) of American Stock Exchange LLC, a Delaware limited liability company and registered national securities exchange (‘‘Amex’’), by NYSE Euronext, the Delaware corporation that indirectly owns 100% of the Exchange. The text of the proposed rule change is available on the Exchange’s Web site 6 17 CFR 200.30–3(a)(12). U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. 3 15 U.S.C. 78s(b)(3)(A). 4 17 CFR 240.19b–4(f)(6). 1 15 VerDate Aug<31>2005 18:01 Aug 08, 2008 Jkt 214001 at https://www.nyse.com, at the Exchange’s principal office, and at the Commission’s Public Reference Room. II. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, the Exchange included statements 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 Exchange is submitting this proposed rule change to the Commission in connection with the proposed acquisition of MC, a New York not-for-profit corporation that owns 100% of Amex, by NYSE Euronext. The proposed acquisition will occur pursuant to the terms of the Agreement and Plan of Merger, dated as of January 17, 2008 (as it may be amended from time to time, the ‘‘Merger Agreement’’), by and among NYSE Euronext, Amsterdam Merger Sub, LLC, a Delaware limited liability company and a wholly owned subsidiary of NYSE Euronext formed by NYSE Euronext in connection with the Mergers (‘‘Merger Sub’’), MC, AMC Acquisition Sub, Inc., a Delaware corporation and a wholly owned subsidiary of MC (‘‘AMCAS’’), American Stock Exchange Holdings, Inc., a Delaware corporation and a wholly owned subsidiary of MC created by MC in connection with the Mergers (‘‘Holdings’’), Amex, which is 99 percent owned by MC and 1 percent owned by AMCAS, and American Stock Exchange 2, LLC, a Delaware limited liability company and a wholly owned subsidiary of Holdings formed by Holdings in connection with the Mergers (‘‘Amex Merger Sub’’). Under the terms of the Merger Agreement, MC will demutualize and NYSE Euronext will acquire the business of MC and its subsidiaries through a series of mergers (the ‘‘Mergers’’). Following the Mergers, Merger Sub, a wholly owned subsidiary of NYSE Euronext and a successor to MC and AMCAS, will directly own 100% of Amex Merger Sub, which will PO 00000 Frm 00104 Fmt 4703 Sfmt 4703 46685 be the successor to Amex and a registered national securities exchange. It is intended that Amex Merger Sub will be renamed ‘‘NYSE Alternext U.S. LLC’’ (and therefore is referred to in this document as ‘‘NYSE Alternext U.S.’’). The proposed rule change will not become operative until completion of the Internal Merger (as defined below). Corporate Structure Immediately following the NYSE/ Amex Merger, NYSE Euronext will contribute 100% of the limited liability company interest of Merger Sub to NYSE Group, Inc. (‘‘NYSE Group’’) (such contribution, the ‘‘Contribution’’), causing Merger Sub to become a direct wholly owned subsidiary of NYSE Group. Immediately following the Contribution, Merger Sub will merge with and into NYSE Alternext U.S., a direct wholly owned subsidiary of Merger Sub (‘‘Internal Merger’’). As a result of the Contribution and the Internal Merger, NYSE Alternext U.S. will become a direct wholly owned subsidiary of NYSE Group. Organizational Documents of NYSE Euronext Currently the NYSE Euronext organizational documents provide certain protections to the Exchange and New York Stock Exchange LLC that are designed to protect and facilitate their self-regulatory functions. In general, the organizational documents of NYSE Euronext are being amended to provide similar protections to NYSE Alternext U.S. as are currently provided to the Exchange and New York Stock Exchange LLC under those documents. In addition, in the proposed new Director Independence Policy for NYSE Euronext directors, the three-year retrospective period (‘‘look-back period’’) over which directors’ relationships with members of the Exchange and New York Stock Exchange LLC are reviewed (which following the Mergers will apply equally to NYSE Alternext U.S.) has been reduced to one year. The Exchange believes that this reduction will be beneficial in expanding NYSE Euronext’s pool of eligible director candidates with knowledge of the exchange industry, while still maintaining sufficient director independence. The amended and restated bylaws of NYSE Euronext are being amended to: • Include NYSE Alternext U.S. in the definition of ‘‘U.S. Regulated Subsidiaries,’’ which currently includes New York Stock Exchange LLC, NYSE Market, Inc., NYSE Regulation, Inc., NYSE Arca, L.L.C., the Exchange, and E:\FR\FM\11AUN1.SGM 11AUN1 rmajette on PRODPC74 with NOTICES 46686 Federal Register / Vol. 73, No. 155 / Monday, August 11, 2008 / Notices NYSE Arca Equities, Inc. and to provide that the term ‘‘U.S. Regulated Subsidiaries’’ includes those entities listed or their successors, but only so long as they continue to be controlled, directly or indirectly, by NYSE Euronext; • Provide that the provisions referencing New York Stock Exchange LLC, NYSE Market, Inc., NYSE Regulation, Inc., NYSE Arca, L.L.C., the Exchange, and NYSE Arca Equities, Inc. apply with respect to those entities or their successors, but only so long as they or their successors continue to be controlled, directly or indirectly, by NYSE Euronext; • Provide the same protection to confidential information pertaining to the self-regulatory function of NYSE Alternext U.S. or its successor (including but not limited to disciplinary matters, trading data, trading practices and audit information) contained in the books and records of any of the U.S. Regulated Subsidiaries, that shall come into the possession of NYSE Euronext, as is currently provided under the bylaws of NYSE Euronext with respect such confidential information pertaining to the selfregulatory function of New York Stock Exchange LLC, NYSE Market, Inc., NYSE Regulation, Inc., the Exchange, and NYSE Arca Equities, Inc., but only to the extent that NYSE Alternext U.S. and its successor continues to be controlled, directly or indirectly by NYSE Euronext; • Provide that, subject to its fiduciary obligations under applicable law, for so long as NYSE Euronext directly or indirectly controls NYSE Alternext U.S. (or its successor), the board of directors of NYSE Euronext shall not adopt any resolution pursuant to clause (2) of Section 1(B) of Article V of the certificate of incorporation of NYSE Euronext unless the board of Directors of NYSE Euronext shall have determined that: • In the case of a resolution to approve the exercise of voting rights in excess of 20% of the then outstanding votes entitled to be cast on such matter, neither such Person nor any of its Related Persons (as defined in the certificate of incorporation of NYSE Euronext) is, with respect to NYSE Alternext U.S. (or its successor), a ‘‘member,’’ as defined in Sections 3(a)(3)(A)(i), 3(a)(3)(A)(ii), 3(a)(3)(A)(iii) and 3(a)(3)(A)(iv) of the Exchange Act 5 (a ‘‘NYSE Alternext Member’’) (any such person that is a ‘‘Related Person’’ (as defined in the Certificate of incorporation of NYSE Euronext) of such NYSE Alternext Member is also deemed to be a ‘‘NYSE Alternext Member’’ for the purposes of the proposed Second Amended and Restated Bylaws of NYSE Euronext, as the context may require); and • In the case of a resolution to approve the entering into of an agreement, plan or other arrangement under circumstances that would result in shares of stock of NYSE Euronext that would be subject to such agreement, plan or other arrangement not being voted on any matter, or the withholding of any proxy relating thereto, where the effect of such agreement, plan or other arrangement would be to enable any person, but for Article V of the certificate of incorporation of NYSE Euronext, either alone or together with its Related Persons, to vote, possess the right to vote or cause the voting of shares of stock of NYSE Euronext that would exceed 20% of the then outstanding votes entitled to be cast on such matter (assuming that all shares of stock of NYSE Euronext that are subject to such agreement, plan or other arrangement are not outstanding votes entitled to be cast on such matter), neither such Person nor any of its Related Persons is, with respect to NYSE Alternext U.S. (or its successor), a NYSE Alternext Member; • Provide that, subject to its fiduciary obligations under applicable law, for so long as NYSE Euronext directly or indirectly controls NYSE Alternext U.S. (or its successor), the board of directors of NYSE Euronext shall not adopt any resolution pursuant to clause (2) of Section 2(B) of Article V of the certificate of incorporation of NYSE Euronext (which relates to NYSE Euronext board of directors approval of ownership of NYSE Euronext capital stock in excess of 20%), unless the board of directors of NYSE Euronext shall have determined that neither such Person nor any of its Related Persons is, with respect to NYSE Alternext U.S. (or its successor), a NYSE Alternext Member; • Provide that, for so long as NYSE Euronext controls any of the U.S. Regulated Subsidiaries, any amendment to or repeal of the bylaws of NYSE Euronext must either be (i) filed with or filed with and approved by the Commission under Section 19 of the Exchange Act 6 and the rules promulgated thereunder or (ii) submitted to the boards of directors of the New York Stock Exchange LLC, NYSE Market, Inc., NYSE Regulation, Inc., the Exchange, NYSE Arca Equities, Inc. and NYSE Alternext U.S. or the boards of directors of their successors, in each case only to the extent that such entity continues to be controlled directly or indirectly by the NYSE Euronext, and if any or all of such boards of directors shall determine that such amendment or repeal must be filed with or filed with and approved by the Commission under Section 19 of the Exchange Act 7 and the rules promulgated thereunder before such amendment or repeal may be effectuated, then such amendment or repeal shall not be effectuated until filed with or filed with and approved by the Commission, as the case may be; • Provide that, for as long as NYSE Euronext Controls any European Market Subsidiary (as defined in the bylaws of NYSE Euronext), any amendment to or repeal of the bylaws of NYSE Euronext must either be (i) filed with or filed with and approved by a European Regulator (as defined in the bylaws of NYSE Euronext) under European Exchange Regulations (as defined in the bylaws of NYSE Euronext) or (ii) submitted to the boards of directors of the European Market Subsidiaries and, if any or all of such boards of directors shall determine that such amendment or repeal must be filed with or filed with and approved by a European Regulator under European Exchange Regulations before such amendment or repeal may be effectuated, then such amendment or repeal shall not be effectuated until filed with or filed with and approved by the relevant European Regulator(s); • Provide that so long as NYSE Euronext shall control, directly or indirectly, NYSE Alternext U.S. (or its successor), the board of directors of NYSE Euronext shall not adopt any resolution to repeal or amend any provision of the Certificate of Incorporation unless such amendment or repeal shall either (i) be filed with or filed with and approved by the Commission under Section 19 of the Exchange Act 8 and the rules promulgated thereunder or (ii) be submitted to the board of directors of NYSE Alternext U.S. (or the board of directors of its successor), and if such board of directors determines that such amendment or repeal must be filed with or filed with and approved by the Commission under Section 19 of the Exchange Act 9 and the rules promulgated thereunder before such amendment or repeal may be effectuated, then such amendment or repeal shall not be effectuated until filed 7 Id. 8 Id. 5 15 U.S.C. 78c(a)(3)(A). VerDate Aug<31>2005 15:22 Aug 08, 2008 6 15 Jkt 214001 PO 00000 U.S.C. 78s. Frm 00105 Fmt 4703 9 Id. Sfmt 4703 E:\FR\FM\11AUN1.SGM 11AUN1 rmajette on PRODPC74 with NOTICES Federal Register / Vol. 73, No. 155 / Monday, August 11, 2008 / Notices with or filed with and approved by the Commission, as the case may be; and • Remove or update certain references to the Combination Agreement, dated as of June 1, 2006, as amended and restated as of November 24, 2006, by and among the NYSE Euronext, NYSE Group, Inc., Euronext N.V. and Jefferson Merger Sub, Inc. The proposed new independence policy of the NYSE Euronext board of directors will be substantially similar to the current Commission-approved independence policy of the NYSE Euronext board of directors,10 except that: • The independence policy provision relating to relationships with New York Stock Exchange LLC and Exchange market participants have been expanded to equally apply to relationships with NYSE Alternext U.S. market participants (or the market participants of its successor); • Instead of relying on the definition of ‘‘member’’ or ‘‘member organization’’ or similar terms in the rules of the individual exchanges, the proposed new independence policy relies on the definition of ‘‘member’’ in Sections 3(a)(3)(A)(i), 3(a)(3)(A)(ii), 3(a)(3)(A)(iii) and 3(a)(3)(A)(iv) of the Exchange Act.11 This technical change is designed to harmonize the use of those terms in the proposed new independence policy with respect to each of the Exchange, New York Stock Exchange LLC, and NYSE Alternext U.S. and to simplify the language of the policy; • Independence requirements for the NYSE Alternext U.S. board of directors (or the board of directors of its successor) have been added that are the same as those for New York Stock Exchange LLC’s board of directors; • The ‘‘look back period’’ with respect to directors’ relationships with members of the Exchange and New York Stock Exchange LLC (which following the Mergers will apply equally to NYSE Alternext U.S.) has been reduced from three years to one year; • All references to New York Stock Exchange LLC, the Exchange, NYSE Arca Equities, Inc., and NYSE Alternext U.S. shall mean each of those entities or its successor; and • The provision providing for a transition period so that the independence requirements of the NYSE Euronext director independence policy would not apply to the European Persons on the NYSE Euronext board of directors until the annual meeting of 10 See Securities Exchange Act Release No. 55293 (February 14, 2007), 72 FR 8033 (February 22, 2007) (SR–NYSE–2006–120). 11 15 U.S.C. 78c(a)(3)(A). VerDate Aug<31>2005 15:22 Aug 08, 2008 Jkt 214001 NYSE Euronext stockholders in 2008 has been deleted since the revised NYSE Euronext Independence Policy is expected to go into effect after the meeting of NYSE Euronext Stockholders in 2008. Organizational Documents of NYSE Group Currently the NYSE Group organizational documents provide certain protections to the Exchange and New York Stock Exchange LLC that are designed to protect and facilitate their self-regulatory functions. In general, the organizational documents of NYSE Group are being amended to provide similar protections to NYSE Alternext U.S. as are currently provided to the Exchange and New York Stock Exchange LLC under those documents. The amended and restated certificate of incorporation of NYSE Group is being amended to: • Provide that, subject to its fiduciary obligations under applicable law, for so long as NYSE Group directly or indirectly controls NYSE Alternext U.S. (or its successor), the board of directors of NYSE Group shall not adopt any resolution pursuant to clause (ii) of Section 4(b)(1)(A) of Article IV of the certificate of incorporation of NYSE Group unless the board of Directors of NYSE Group shall have determined that: • In the case of a resolution to approve the exercise of voting rights in excess of 20% of the then outstanding votes entitled to be cast on such matter, neither such Person nor any of its Related Persons (as defined in the certificate of incorporation of NYSE Group) is, with respect to NYSE Alternext U.S. (or its successor), a ‘‘member,’’ as defined in Sections 3(a)(3)(A)(i), 3(a)(3)(A)(ii), 3(a)(3)(A)(iii) and (3)(a)(3)(A)(iv) of the Exchange Act 12) (a ‘‘NYSE Alternext Member’’) (any such person that is a Related Person (as defined in the Second Amended and Restated Certificate of Incorporation of NYSE Group) of such NYSE Alternext Member is also deemed to be an ‘‘NYSE Alternext Member’’ for purposes of the proposed Second Amended and Restate Certificate of Incorporation of NYSE Group, as the context may require); and • In the case of a resolution to approve the entering into of an agreement, plan or other arrangement under circumstances that would result in shares of stock of NYSE Group that would be subject to such agreement, plan or other arrangement not being voted on any matter, or the withholding 12 15 PO 00000 U.S.C. 78c(a)(3)(A). Frm 00106 Fmt 4703 Sfmt 4703 46687 of any proxy relating thereto, where the effect of such agreement, plan or other arrangement would be to enable any person, but for Article IV of the certificate of incorporation of NYSE Group, either alone or together with its Related Persons, to vote, possess the right to vote or cause the voting of shares of stock of NYSE Group that would exceed 20% of the then outstanding votes entitled to be cast on such matter (assuming that all shares of stock of NYSE Group that are subject to such agreement, plan or other arrangement are not outstanding votes entitled to be cast on such matter), neither such Person nor any of its Related Persons is, with respect to NYSE Alternext U.S. (or its successor), a NYSE Alternext Member; • Provide that, subject to its fiduciary obligations under applicable law, for so long as NYSE Group directly or indirectly controls NYSE Alternext U.S. (or its successor), the board of directors of NYSE Group shall not adopt any resolution pursuant to clause (ii) of Section 4(b)(2)(B) of Article IV of the certificate of incorporation of NYSE Group (which relates to NYSE Group board of directors approval of ownership of NYSE Group capital stock in excess of 20%), unless the board of directors of NYSE Group shall have determined that neither such Person nor any of its Related Persons is, with respect to NYSE Alternext U.S. (or its successor), a NYSE Alternext Member; • Include NYSE Alternext U.S. in the definition of ‘‘Regulated Subsidiaries,’’ which currently includes New York Stock Exchange LLC, NYSE Market, Inc., NYSE Regulation, Inc., NYSE Arca, L.L.C., the Exchange, and NYSE Arca Equities, Inc. and to provide that the term ‘‘Regulated Subsidiaries’’ includes those entities listed or their successors, but only so long as they continue to be controlled, directly or indirectly, by NYSE Group; • Provide the same protections to all confidential information pertaining to the self-regulatory function of NYSE Alternext U.S. as are currently provided under the Amended and Restated Certificate of Incorporation of NYSE Group to confidential information pertaining to the self regulatory function of New York Stock Exchange LLC, NYSE Market, Inc., NYSE Regulation, Inc., the Exchange, and NYSE Arca Equities, Inc.; • Provide that any amendment to or repeal of the certificate of incorporation of NYSE Group must either be (i) filed with or filed with and approved by the Commission under Section 19 of the E:\FR\FM\11AUN1.SGM 11AUN1 46688 Federal Register / Vol. 73, No. 155 / Monday, August 11, 2008 / Notices Exchange Act 13 and the rules promulgated thereunder or (ii) submitted to the boards of directors of New York Stock Exchange LLC, NYSE Market, Inc., NYSE Regulation, Inc., the Exchange, NYSE Arca Equities, Inc. and NYSE Alternext U.S. or the boards of directors of their successors, in each case only to the extent that such entity continues to be controlled directly or indirectly by the NYSE Group, and if any or all of such boards of directors shall determine that such amendment or repeal must be filed with or filed with and approved by the Commission under Section 19 of the Exchange Act 14 and the rules promulgated thereunder before such amendment or repeal may be effectuated, then such amendment or repeal shall not be effectuated until filed with or filed with and approved by the Commission, as the case may be. The amended and restated bylaws of NYSE Group are being amended to: • Provide that any amendment to or repeal of the bylaws of NYSE Group must either be (i) filed with or filed with and approved by the Commission under Section 19 of the Exchange Act and the rules promulgated thereunder or (ii) submitted to the boards of directors of New York Stock Exchange LLC, NYSE Market, Inc., NYSE Regulation, Inc., the Exchange, NYSE Arca Equities, Inc. and NYSE Alternext U.S. or the boards of directors of their successors, in each case only to the extent that such entity continues to be controlled directly or indirectly by the NYSE Group, and if any or all of such boards of directors shall determine that such amendment or repeal must be filed with or filed with and approved by the Commission under Section 19 of the Exchange Act and the rules promulgated thereunder before such amendment or repeal may be effectuated, then such amendment or repeal shall not be effectuated until filed with or filed with and approved by the Commission, as the case may be. rmajette on PRODPC74 with NOTICES Trust Agreement of the NYSE Group Trust I The Trust Agreement is being amended to make certain technical changes designed to better provide NYSE Alternext U.S. with the same protections against certain material adverse changes in European Law that it currently provides for the Exchange and New York Stock Exchange LLC. 2. Statutory Basis The Exchange believes the proposed rule change is consistent with and furthers the objectives of Section 6(b)(5) 13 15 U.S.C. 78s. 14 Id. VerDate Aug<31>2005 15:22 Aug 08, 2008 Jkt 214001 of the Exchange Act,15 in that it is designed to prevent fraudulent and manipulative practices, to promote just and equitable principles of trade, to remove impediments to, and perfect the mechanisms of, a free and open market and a national market system, and, in general, to protect investors and the public interest. B. Self-Regulatory Organization’s Statement on Burden on Competition The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Exchange Act. C. Self-Regulatory Organization’s Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others 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 Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) Impose any significant burden on competition; and (iii) Become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, if consistent with the protection of investors and the public interest, it has become effective pursuant to Section 19(b)(3)(A) of the Exchange Act 16 and Rule 19b–4(f)(6) thereunder.17 As required under Rule 19b–4(f)(6)(iii) under the Exchange Act,18 the Exchange provided the Commission with written notice of its intent to file the proposed rule change, along with a brief description and text of the proposed rule change, at least five business days prior to the date of the filing of the proposed rule change. The Exchange represents that the proposed rule change is substantially the same as the proposed rule change filed by New York Stock Exchange LLC related to the acquisition of MC by NYSE Euronext (the ‘‘NYSE Rule Filing’’).19 At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate 15 15 U.S.C. 78f(b)(5). U.S.C. 78s(b)(3)(A). 17 17 CFR 240.19b–4(f)(6). 18 17 CFR 240.19b–4(f)(6)(iii). 19 SR–NYSE–2008–60. Specifically, the Exchange represents that each exhibit filed with the proposed rule filing is identical to the corresponding exhibit filed with the NYSE Rule Filing. 16 15 PO 00000 Frm 00107 Fmt 4703 Sfmt 4703 such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. IV. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Exchange Act. Comments may be submitted by any of the following methods: Electronic Comments • Use the Commission’s Internet comment form (https://www.sec.gov/ rules/sro.shtml); or • Send an e-mail to rulecomments@sec.gov. Please include File Number SR–NYSEArca–2008–82 on the subject line. Paper Comments • Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549. All submissions should refer to File Number SR–NYSEArca–2008–82. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission’s Internet Web site (https://www.sec.gov/ rules/sro.shtml). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission’s Public Reference Room, 100 F Street, NE., Washington, DC 20549, on official business days between the hours of 10 a.m. and 3 p.m. Copies of such filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR–NYSEArca–2008–82 and should be submitted on or before September 2, 2008. E:\FR\FM\11AUN1.SGM 11AUN1 Federal Register / Vol. 73, No. 155 / Monday, August 11, 2008 / Notices For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.20 Florence E. Harmon, Acting Secretary. [FR Doc. E8–18422 Filed 8–8–08; 8:45 am] BILLING CODE 8010–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–58312; File No. SR– NYSEArca–2008–63] Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Amendment No. 1 and Order Granting Accelerated Approval of a Proposed Rule Change, as Modified by Amendment No. 1 Thereto, To List and Trade Shares of the MacroShares Medical Inflation Trusts August 5, 2008. On June 13, 2008, NYSE Arca, Inc. (‘‘NYSE Arca’’ or ‘‘Exchange’’), through its wholly owned subsidiary, NYSE Arca Equities, Inc. (‘‘NYSE Arca Equities’’), filed with the Securities and Exchange Commission (‘‘Commission’’), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 a proposed rule change to: (1) Amend NYSE Arca Equities Rule 8.400 (Paired Trust Shares); and (2) list and trade shares of the MacroShares Medical Inflation Up Trust Series 2008–1 (‘‘Up Trust’’) and shares of the MacroShares Medical Inflation Down Trust Series 2008–1 (‘‘Down Trust’’ and, together with the Up Trust, the ‘‘Trusts’’).3 The proposed rule change was published for comment in the Federal Register on July 2, 2008.4 The Commission received no comments on the proposal. On July 31, 2008, the Exchange filed Amendment No. 1 to the proposed rule change. This order provides notice of filing of Amendment No. 1 to the proposed rule change,5 and grants accelerated 20 17 CFR 200.30–3(a)(12). U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. 3 The shares of the Up Trust are referred to as Up MacroShares, the shares of the Down Trust are referred to as Down MacroShares, and the Up MacroShares and Down MacroShares are referred to collectively as the ‘‘Shares.’’ 4 See Securities Exchange Act Release No. 58024 (June 25, 2008), 73 FR 38003. 5 Amendment No. 1 provided additional detail regarding the availability of the Applicable Reference Value (as defined herein) and other information relating to the Shares. The amendment also clarifies proposed NYSE Arca Equities Rule 8.400(d)(2)(ii), which describes a circumstance in which Paired Trust Shares will be delisted. Specifically, the amendment makes clear that the Exchange will delist any type of Paired Trust Shares (not just Tradeable Shares) for which an intraday rmajette on PRODPC74 with NOTICES 1 15 VerDate Aug<31>2005 15:22 Aug 08, 2008 Jkt 214001 approval to the proposed rule change, as modified by Amendment No. 1. I. Description of the Proposal A. Amendments to NYSE Arca Equities Rule 8.400 The Exchange proposes to amend NYSE Arca Equities Rule 8.400 governing Paired Trust Shares to allow for the listing and trading of ‘‘Trading Shares,’’ a proposed new type of Paired Trust Share. Currently, NYSE Arca Equities Rule 8.400 defines Paired Trust Shares to include only Holding Shares, which are issued by a matched pair of Trusts (‘‘Holding Trusts’’) in exchange for cash, and Tradeable Shares, which are issued by a different pair of Trusts (‘‘Tradeable Trusts’’) in exchange for the deposit of Holding Shares. Under the proposed amendments to NYSE Arca Equities Rule 8.400, the term ‘‘Paired Trust Shares’’ refers to: (1) Both Holding Shares and any related Tradeable Shares; or (2) solely ‘‘Trading Shares,’’ which is a new defined term. As proposed, Trading Shares has the same definition as Holding Shares, except that it is not required that a majority of Trading Shares be acquired and deposited in a related Tradeable Trust, as it is with Holding Shares. The Exchange represents that there are no substantive differences between the proposed Paired Trust Shares structure (i.e., a single set of Trading Trusts that issue Trading Shares and hold financial instruments) and the current two-tier structure (i.e., a set of Tradeable Trusts that issue Tradeable Shares and hold Holding Shares issued by a set of Holding Trusts that invest in financial instruments). B. Listing and Trading of the Shares The Up Trust and the Down Trust intend to issue Up MacroShares and Down MacroShares, respectively, on a continuous basis at the direction of authorized participants. The Up MacroShares and the Down MacroShares represent undivided beneficial interests in the Up Trust and the Down Trust, respectively. The assets of each Trust will consist of an income distribution agreement and settlement contracts entered into with the other Trust. Under the income distribution agreement, as of any distribution date, each Trust will either: (1) Be required to pay a portion of its available income to the other Trust; or (2) be entitled to receive all or a portion of the other Trust’s available income, based, in each case, on the Applicable Reference Price is calculated and disseminated if the intraday Reference Price is not calculated or disseminated as required by the Rule. PO 00000 Frm 00108 Fmt 4703 Sfmt 4703 46689 Reference Value of Medical Inflation (the ‘‘Applicable Reference Value,’’ as defined below) for each day during the preceding calculation period. Under each settlement contract, in connection with the final scheduled termination date, an early termination date or any redemption date, each Trust will either: (1) Be required to make a final payment out of its assets to the other Trust; or (2) be entitled to receive a final payment from the other Trust out of the assets of the other Trust, based, in each case, on the Applicable Reference Value for the period from the closing date through the date of redemption. Each Trust will also hold U.S. Treasuries and repurchase agreements on U.S. Treasuries to secure its obligations under the income distribution agreement and the settlement contracts. Each Trust will make quarterly distributions of income on the treasuries and a final distribution of all assets it holds on deposit on the final scheduled termination date, an early termination date or a redemption date. Each quarterly and final distribution will be based on the value for the medical care component of the Consumer Price Index for All Urban Consumers (‘‘CPI–U’’), as calculated and published monthly by the Bureau of Labor Statistics (‘‘BLS’’) at www.bls.gov.6 The medical care component of the CPI–U reflects inflation in the cost of medical goods and services. The Applicable Reference Value is a daily linear interpolation based on the monthly values of the medical care component of the CPI–U for the preceding two months, and is the Reference Price for purposes of NYSE Arca Equities Rule 8.400, on the basis of which quarterly and final distributions on the Up MacroShares and Down MacroShares are calculated. The Applicable Reference Value is determined for each calendar day using a formula set forth in the Up Trust Registration Statement. For purposes of determining the Applicable Reference Value, following the monthly publication by the BLS, any corrections to the CPI–U values released for any calendar month will not be taken into consideration or used to recalculate the underlying value of the Shares. With respect to the Up Trust, if the ratio of the Applicable Reference Value on any day to the Applicable Reference Value on the closing date (the date on which the Trusts entered into an income 6 The BLS publishes a summary of its methodology for calculating the CPI at www.bls.gov/ cpi/. In addition, a manual entitled BLS Handbook of Methods, in which a chapter is dedicated to calculation methodology for the CPI, may be accessed on the BLS Web site at www.bls.gov/opub/ hom/pdf/homch17.pdf. E:\FR\FM\11AUN1.SGM 11AUN1

Agencies

SECURITIES AND EXCHANGE COMMISSION

[Federal Register Volume 73, Number 155 (Monday, August 11, 2008)]
[Notices]
[Pages 46685-46689]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-18422]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-58306; File No. SR-NYSEArca-2008-82]


Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing 
and Immediate Effectiveness of Proposed Rule Change in Connection With 
the Proposed Acquisition of The Amex Membership Corporation

August 5, 2008.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Exchange Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby 
given that on July 31, 2008, NYSE Arca, Inc. (``NYSE Arca'' or 
``Exchange'') filed with the Securities and Exchange Commission 
(``Commission'') the proposed rule change as described in Items I and 
II below, which Items have been substantially prepared by the Exchange. 
The Exchange filed the proposal pursuant to Section 19(b)(3)(A) of the 
Exchange Act \3\ and Rule 19b-4(f)(6) thereunder,\4\ which renders the 
proposal effective upon filing with the Commission. The Commission is 
publishing this notice to solicit comments on the proposed rule change 
from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ 15 U.S.C. 78s(b)(3)(A).
    \4\ 17 CFR 240.19b-4(f)(6).
---------------------------------------------------------------------------

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

    The Exchange, a Delaware Corporation and registered national 
securities exchange is submitting this proposed rule change to the 
Commission in connection with the proposed acquisition of The Amex 
Membership Corporation (``MC''), a New York not-for-profit corporation 
that owns 100% (99% directly and 1% indirectly through a wholly owned 
subsidiary) of American Stock Exchange LLC, a Delaware limited 
liability company and registered national securities exchange 
(``Amex''), by NYSE Euronext, the Delaware corporation that indirectly 
owns 100% of the Exchange.
    The text of the proposed rule change is available on the Exchange's 
Web site at https://www.nyse.com, at the Exchange's principal office, 
and at the Commission's Public Reference Room.

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

    In its filing with the Commission, the Exchange included statements 
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 Exchange is submitting this proposed rule change to the 
Commission in connection with the proposed acquisition of MC, a New 
York not-for-profit corporation that owns 100% of Amex, by NYSE 
Euronext. The proposed acquisition will occur pursuant to the terms of 
the Agreement and Plan of Merger, dated as of January 17, 2008 (as it 
may be amended from time to time, the ``Merger Agreement''), by and 
among NYSE Euronext, Amsterdam Merger Sub, LLC, a Delaware limited 
liability company and a wholly owned subsidiary of NYSE Euronext formed 
by NYSE Euronext in connection with the Mergers (``Merger Sub''), MC, 
AMC Acquisition Sub, Inc., a Delaware corporation and a wholly owned 
subsidiary of MC (``AMCAS''), American Stock Exchange Holdings, Inc., a 
Delaware corporation and a wholly owned subsidiary of MC created by MC 
in connection with the Mergers (``Holdings''), Amex, which is 99 
percent owned by MC and 1 percent owned by AMCAS, and American Stock 
Exchange 2, LLC, a Delaware limited liability company and a wholly 
owned subsidiary of Holdings formed by Holdings in connection with the 
Mergers (``Amex Merger Sub'').
    Under the terms of the Merger Agreement, MC will demutualize and 
NYSE Euronext will acquire the business of MC and its subsidiaries 
through a series of mergers (the ``Mergers''). Following the Mergers, 
Merger Sub, a wholly owned subsidiary of NYSE Euronext and a successor 
to MC and AMCAS, will directly own 100% of Amex Merger Sub, which will 
be the successor to Amex and a registered national securities exchange. 
It is intended that Amex Merger Sub will be renamed ``NYSE Alternext 
U.S. LLC'' (and therefore is referred to in this document as ``NYSE 
Alternext U.S.''). The proposed rule change will not become operative 
until completion of the Internal Merger (as defined below).
Corporate Structure
    Immediately following the NYSE/Amex Merger, NYSE Euronext will 
contribute 100% of the limited liability company interest of Merger Sub 
to NYSE Group, Inc. (``NYSE Group'') (such contribution, the 
``Contribution''), causing Merger Sub to become a direct wholly owned 
subsidiary of NYSE Group. Immediately following the Contribution, 
Merger Sub will merge with and into NYSE Alternext U.S., a direct 
wholly owned subsidiary of Merger Sub (``Internal Merger''). As a 
result of the Contribution and the Internal Merger, NYSE Alternext U.S. 
will become a direct wholly owned subsidiary of NYSE Group.
Organizational Documents of NYSE Euronext
    Currently the NYSE Euronext organizational documents provide 
certain protections to the Exchange and New York Stock Exchange LLC 
that are designed to protect and facilitate their self-regulatory 
functions. In general, the organizational documents of NYSE Euronext 
are being amended to provide similar protections to NYSE Alternext U.S. 
as are currently provided to the Exchange and New York Stock Exchange 
LLC under those documents. In addition, in the proposed new Director 
Independence Policy for NYSE Euronext directors, the three-year 
retrospective period (``look-back period'') over which directors' 
relationships with members of the Exchange and New York Stock Exchange 
LLC are reviewed (which following the Mergers will apply equally to 
NYSE Alternext U.S.) has been reduced to one year. The Exchange 
believes that this reduction will be beneficial in expanding NYSE 
Euronext's pool of eligible director candidates with knowledge of the 
exchange industry, while still maintaining sufficient director 
independence.
    The amended and restated bylaws of NYSE Euronext are being amended 
to:
     Include NYSE Alternext U.S. in the definition of ``U.S. 
Regulated Subsidiaries,'' which currently includes New York Stock 
Exchange LLC, NYSE Market, Inc., NYSE Regulation, Inc., NYSE Arca, 
L.L.C., the Exchange, and

[[Page 46686]]

NYSE Arca Equities, Inc. and to provide that the term ``U.S. Regulated 
Subsidiaries'' includes those entities listed or their successors, but 
only so long as they continue to be controlled, directly or indirectly, 
by NYSE Euronext;
     Provide that the provisions referencing New York Stock 
Exchange LLC, NYSE Market, Inc., NYSE Regulation, Inc., NYSE Arca, 
L.L.C., the Exchange, and NYSE Arca Equities, Inc. apply with respect 
to those entities or their successors, but only so long as they or 
their successors continue to be controlled, directly or indirectly, by 
NYSE Euronext;
     Provide the same protection to confidential information 
pertaining to the self-regulatory function of NYSE Alternext U.S. or 
its successor (including but not limited to disciplinary matters, 
trading data, trading practices and audit information) contained in the 
books and records of any of the U.S. Regulated Subsidiaries, that shall 
come into the possession of NYSE Euronext, as is currently provided 
under the bylaws of NYSE Euronext with respect such confidential 
information pertaining to the self-regulatory function of New York 
Stock Exchange LLC, NYSE Market, Inc., NYSE Regulation, Inc., the 
Exchange, and NYSE Arca Equities, Inc., but only to the extent that 
NYSE Alternext U.S. and its successor continues to be controlled, 
directly or indirectly by NYSE Euronext;
     Provide that, subject to its fiduciary obligations under 
applicable law, for so long as NYSE Euronext directly or indirectly 
controls NYSE Alternext U.S. (or its successor), the board of directors 
of NYSE Euronext shall not adopt any resolution pursuant to clause (2) 
of Section 1(B) of Article V of the certificate of incorporation of 
NYSE Euronext unless the board of Directors of NYSE Euronext shall have 
determined that:
     In the case of a resolution to approve the exercise of 
voting rights in excess of 20% of the then outstanding votes entitled 
to be cast on such matter, neither such Person nor any of its Related 
Persons (as defined in the certificate of incorporation of NYSE 
Euronext) is, with respect to NYSE Alternext U.S. (or its successor), a 
``member,'' as defined in Sections 3(a)(3)(A)(i), 3(a)(3)(A)(ii), 
3(a)(3)(A)(iii) and 3(a)(3)(A)(iv) of the Exchange Act \5\ (a ``NYSE 
Alternext Member'') (any such person that is a ``Related Person'' (as 
defined in the Certificate of incorporation of NYSE Euronext) of such 
NYSE Alternext Member is also deemed to be a ``NYSE Alternext Member'' 
for the purposes of the proposed Second Amended and Restated Bylaws of 
NYSE Euronext, as the context may require); and
---------------------------------------------------------------------------

    \5\ 15 U.S.C. 78c(a)(3)(A).
---------------------------------------------------------------------------

     In the case of a resolution to approve the entering into 
of an agreement, plan or other arrangement under circumstances that 
would result in shares of stock of NYSE Euronext that would be subject 
to such agreement, plan or other arrangement not being voted on any 
matter, or the withholding of any proxy relating thereto, where the 
effect of such agreement, plan or other arrangement would be to enable 
any person, but for Article V of the certificate of incorporation of 
NYSE Euronext, either alone or together with its Related Persons, to 
vote, possess the right to vote or cause the voting of shares of stock 
of NYSE Euronext that would exceed 20% of the then outstanding votes 
entitled to be cast on such matter (assuming that all shares of stock 
of NYSE Euronext that are subject to such agreement, plan or other 
arrangement are not outstanding votes entitled to be cast on such 
matter), neither such Person nor any of its Related Persons is, with 
respect to NYSE Alternext U.S. (or its successor), a NYSE Alternext 
Member;
     Provide that, subject to its fiduciary obligations under 
applicable law, for so long as NYSE Euronext directly or indirectly 
controls NYSE Alternext U.S. (or its successor), the board of directors 
of NYSE Euronext shall not adopt any resolution pursuant to clause (2) 
of Section 2(B) of Article V of the certificate of incorporation of 
NYSE Euronext (which relates to NYSE Euronext board of directors 
approval of ownership of NYSE Euronext capital stock in excess of 20%), 
unless the board of directors of NYSE Euronext shall have determined 
that neither such Person nor any of its Related Persons is, with 
respect to NYSE Alternext U.S. (or its successor), a NYSE Alternext 
Member;
     Provide that, for so long as NYSE Euronext controls any of 
the U.S. Regulated Subsidiaries, any amendment to or repeal of the 
bylaws of NYSE Euronext must either be (i) filed with or filed with and 
approved by the Commission under Section 19 of the Exchange Act \6\ and 
the rules promulgated thereunder or (ii) submitted to the boards of 
directors of the New York Stock Exchange LLC, NYSE Market, Inc., NYSE 
Regulation, Inc., the Exchange, NYSE Arca Equities, Inc. and NYSE 
Alternext U.S. or the boards of directors of their successors, in each 
case only to the extent that such entity continues to be controlled 
directly or indirectly by the NYSE Euronext, and if any or all of such 
boards of directors shall determine that such amendment or repeal must 
be filed with or filed with and approved by the Commission under 
Section 19 of the Exchange Act \7\ and the rules promulgated thereunder 
before such amendment or repeal may be effectuated, then such amendment 
or repeal shall not be effectuated until filed with or filed with and 
approved by the Commission, as the case may be;
---------------------------------------------------------------------------

    \6\ 15 U.S.C. 78s.
    \7\ Id.
---------------------------------------------------------------------------

     Provide that, for as long as NYSE Euronext Controls any 
European Market Subsidiary (as defined in the bylaws of NYSE Euronext), 
any amendment to or repeal of the bylaws of NYSE Euronext must either 
be (i) filed with or filed with and approved by a European Regulator 
(as defined in the bylaws of NYSE Euronext) under European Exchange 
Regulations (as defined in the bylaws of NYSE Euronext) or (ii) 
submitted to the boards of directors of the European Market 
Subsidiaries and, if any or all of such boards of directors shall 
determine that such amendment or repeal must be filed with or filed 
with and approved by a European Regulator under European Exchange 
Regulations before such amendment or repeal may be effectuated, then 
such amendment or repeal shall not be effectuated until filed with or 
filed with and approved by the relevant European Regulator(s);
     Provide that so long as NYSE Euronext shall control, 
directly or indirectly, NYSE Alternext U.S. (or its successor), the 
board of directors of NYSE Euronext shall not adopt any resolution to 
repeal or amend any provision of the Certificate of Incorporation 
unless such amendment or repeal shall either (i) be filed with or filed 
with and approved by the Commission under Section 19 of the Exchange 
Act \8\ and the rules promulgated thereunder or (ii) be submitted to 
the board of directors of NYSE Alternext U.S. (or the board of 
directors of its successor), and if such board of directors determines 
that such amendment or repeal must be filed with or filed with and 
approved by the Commission under Section 19 of the Exchange Act \9\ and 
the rules promulgated thereunder before such amendment or repeal may be 
effectuated, then such amendment or repeal shall not be effectuated 
until filed

[[Page 46687]]

with or filed with and approved by the Commission, as the case may be; 
and
---------------------------------------------------------------------------

    \8\ Id.
    \9\ Id.
---------------------------------------------------------------------------

     Remove or update certain references to the Combination 
Agreement, dated as of June 1, 2006, as amended and restated as of 
November 24, 2006, by and among the NYSE Euronext, NYSE Group, Inc., 
Euronext N.V. and Jefferson Merger Sub, Inc.
    The proposed new independence policy of the NYSE Euronext board of 
directors will be substantially similar to the current Commission-
approved independence policy of the NYSE Euronext board of 
directors,\10\ except that:
---------------------------------------------------------------------------

    \10\ See Securities Exchange Act Release No. 55293 (February 14, 
2007), 72 FR 8033 (February 22, 2007) (SR-NYSE-2006-120).
---------------------------------------------------------------------------

     The independence policy provision relating to 
relationships with New York Stock Exchange LLC and Exchange market 
participants have been expanded to equally apply to relationships with 
NYSE Alternext U.S. market participants (or the market participants of 
its successor);
     Instead of relying on the definition of ``member'' or 
``member organization'' or similar terms in the rules of the individual 
exchanges, the proposed new independence policy relies on the 
definition of ``member'' in Sections 3(a)(3)(A)(i), 3(a)(3)(A)(ii), 
3(a)(3)(A)(iii) and 3(a)(3)(A)(iv) of the Exchange Act.\11\ This 
technical change is designed to harmonize the use of those terms in the 
proposed new independence policy with respect to each of the Exchange, 
New York Stock Exchange LLC, and NYSE Alternext U.S. and to simplify 
the language of the policy;
---------------------------------------------------------------------------

    \11\ 15 U.S.C. 78c(a)(3)(A).
---------------------------------------------------------------------------

     Independence requirements for the NYSE Alternext U.S. 
board of directors (or the board of directors of its successor) have 
been added that are the same as those for New York Stock Exchange LLC's 
board of directors;
     The ``look back period'' with respect to directors' 
relationships with members of the Exchange and New York Stock Exchange 
LLC (which following the Mergers will apply equally to NYSE Alternext 
U.S.) has been reduced from three years to one year;
     All references to New York Stock Exchange LLC, the 
Exchange, NYSE Arca Equities, Inc., and NYSE Alternext U.S. shall mean 
each of those entities or its successor; and
     The provision providing for a transition period so that 
the independence requirements of the NYSE Euronext director 
independence policy would not apply to the European Persons on the NYSE 
Euronext board of directors until the annual meeting of NYSE Euronext 
stockholders in 2008 has been deleted since the revised NYSE Euronext 
Independence Policy is expected to go into effect after the meeting of 
NYSE Euronext Stockholders in 2008.
Organizational Documents of NYSE Group
    Currently the NYSE Group organizational documents provide certain 
protections to the Exchange and New York Stock Exchange LLC that are 
designed to protect and facilitate their self-regulatory functions. In 
general, the organizational documents of NYSE Group are being amended 
to provide similar protections to NYSE Alternext U.S. as are currently 
provided to the Exchange and New York Stock Exchange LLC under those 
documents.
    The amended and restated certificate of incorporation of NYSE Group 
is being amended to:
     Provide that, subject to its fiduciary obligations under 
applicable law, for so long as NYSE Group directly or indirectly 
controls NYSE Alternext U.S. (or its successor), the board of directors 
of NYSE Group shall not adopt any resolution pursuant to clause (ii) of 
Section 4(b)(1)(A) of Article IV of the certificate of incorporation of 
NYSE Group unless the board of Directors of NYSE Group shall have 
determined that:
     In the case of a resolution to approve the exercise of 
voting rights in excess of 20% of the then outstanding votes entitled 
to be cast on such matter, neither such Person nor any of its Related 
Persons (as defined in the certificate of incorporation of NYSE Group) 
is, with respect to NYSE Alternext U.S. (or its successor), a 
``member,'' as defined in Sections 3(a)(3)(A)(i), 3(a)(3)(A)(ii), 
3(a)(3)(A)(iii) and (3)(a)(3)(A)(iv) of the Exchange Act \12\) (a 
``NYSE Alternext Member'') (any such person that is a Related Person 
(as defined in the Second Amended and Restated Certificate of 
Incorporation of NYSE Group) of such NYSE Alternext Member is also 
deemed to be an ``NYSE Alternext Member'' for purposes of the proposed 
Second Amended and Restate Certificate of Incorporation of NYSE Group, 
as the context may require); and
---------------------------------------------------------------------------

    \12\ 15 U.S.C. 78c(a)(3)(A).
---------------------------------------------------------------------------

     In the case of a resolution to approve the entering into 
of an agreement, plan or other arrangement under circumstances that 
would result in shares of stock of NYSE Group that would be subject to 
such agreement, plan or other arrangement not being voted on any 
matter, or the withholding of any proxy relating thereto, where the 
effect of such agreement, plan or other arrangement would be to enable 
any person, but for Article IV of the certificate of incorporation of 
NYSE Group, either alone or together with its Related Persons, to vote, 
possess the right to vote or cause the voting of shares of stock of 
NYSE Group that would exceed 20% of the then outstanding votes entitled 
to be cast on such matter (assuming that all shares of stock of NYSE 
Group that are subject to such agreement, plan or other arrangement are 
not outstanding votes entitled to be cast on such matter), neither such 
Person nor any of its Related Persons is, with respect to NYSE 
Alternext U.S. (or its successor), a NYSE Alternext Member;
     Provide that, subject to its fiduciary obligations under 
applicable law, for so long as NYSE Group directly or indirectly 
controls NYSE Alternext U.S. (or its successor), the board of directors 
of NYSE Group shall not adopt any resolution pursuant to clause (ii) of 
Section 4(b)(2)(B) of Article IV of the certificate of incorporation of 
NYSE Group (which relates to NYSE Group board of directors approval of 
ownership of NYSE Group capital stock in excess of 20%), unless the 
board of directors of NYSE Group shall have determined that neither 
such Person nor any of its Related Persons is, with respect to NYSE 
Alternext U.S. (or its successor), a NYSE Alternext Member;
     Include NYSE Alternext U.S. in the definition of 
``Regulated Subsidiaries,'' which currently includes New York Stock 
Exchange LLC, NYSE Market, Inc., NYSE Regulation, Inc., NYSE Arca, 
L.L.C., the Exchange, and NYSE Arca Equities, Inc. and to provide that 
the term ``Regulated Subsidiaries'' includes those entities listed or 
their successors, but only so long as they continue to be controlled, 
directly or indirectly, by NYSE Group;
     Provide the same protections to all confidential 
information pertaining to the self-regulatory function of NYSE 
Alternext U.S. as are currently provided under the Amended and Restated 
Certificate of Incorporation of NYSE Group to confidential information 
pertaining to the self regulatory function of New York Stock Exchange 
LLC, NYSE Market, Inc., NYSE Regulation, Inc., the Exchange, and NYSE 
Arca Equities, Inc.;
     Provide that any amendment to or repeal of the certificate 
of incorporation of NYSE Group must either be (i) filed with or filed 
with and approved by the Commission under Section 19 of the

[[Page 46688]]

Exchange Act \13\ and the rules promulgated thereunder or (ii) 
submitted to the boards of directors of New York Stock Exchange LLC, 
NYSE Market, Inc., NYSE Regulation, Inc., the Exchange, NYSE Arca 
Equities, Inc. and NYSE Alternext U.S. or the boards of directors of 
their successors, in each case only to the extent that such entity 
continues to be controlled directly or indirectly by the NYSE Group, 
and if any or all of such boards of directors shall determine that such 
amendment or repeal must be filed with or filed with and approved by 
the Commission under Section 19 of the Exchange Act \14\ and the rules 
promulgated thereunder before such amendment or repeal may be 
effectuated, then such amendment or repeal shall not be effectuated 
until filed with or filed with and approved by the Commission, as the 
case may be.
---------------------------------------------------------------------------

    \13\ 15 U.S.C. 78s.
    \14\ Id.
---------------------------------------------------------------------------

    The amended and restated bylaws of NYSE Group are being amended to:
     Provide that any amendment to or repeal of the bylaws of 
NYSE Group must either be (i) filed with or filed with and approved by 
the Commission under Section 19 of the Exchange Act and the rules 
promulgated thereunder or (ii) submitted to the boards of directors of 
New York Stock Exchange LLC, NYSE Market, Inc., NYSE Regulation, Inc., 
the Exchange, NYSE Arca Equities, Inc. and NYSE Alternext U.S. or the 
boards of directors of their successors, in each case only to the 
extent that such entity continues to be controlled directly or 
indirectly by the NYSE Group, and if any or all of such boards of 
directors shall determine that such amendment or repeal must be filed 
with or filed with and approved by the Commission under Section 19 of 
the Exchange Act and the rules promulgated thereunder before such 
amendment or repeal may be effectuated, then such amendment or repeal 
shall not be effectuated until filed with or filed with and approved by 
the Commission, as the case may be.
Trust Agreement of the NYSE Group Trust I
    The Trust Agreement is being amended to make certain technical 
changes designed to better provide NYSE Alternext U.S. with the same 
protections against certain material adverse changes in European Law 
that it currently provides for the Exchange and New York Stock Exchange 
LLC.
2. Statutory Basis
    The Exchange believes the proposed rule change is consistent with 
and furthers the objectives of Section 6(b)(5) of the Exchange Act,\15\ 
in that it is designed to prevent fraudulent and manipulative 
practices, to promote just and equitable principles of trade, to remove 
impediments to, and perfect the mechanisms of, a free and open market 
and a national market system, and, in general, to protect investors and 
the public interest.
---------------------------------------------------------------------------

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

B. Self-Regulatory Organization's Statement on Burden on Competition

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

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

    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

    Because the foregoing proposed rule change does not:
    (i) Significantly affect the protection of investors or the public 
interest;
    (ii) Impose any significant burden on competition; and
    (iii) Become operative for 30 days from the date on which it was 
filed, or such shorter time as the Commission may designate, if 
consistent with the protection of investors and the public interest, it 
has become effective pursuant to Section 19(b)(3)(A) of the Exchange 
Act \16\ and Rule 19b-4(f)(6) thereunder.\17\ As required under Rule 
19b-4(f)(6)(iii) under the Exchange Act,\18\ the Exchange provided the 
Commission with written notice of its intent to file the proposed rule 
change, along with a brief description and text of the proposed rule 
change, at least five business days prior to the date of the filing of 
the proposed rule change. The Exchange represents that the proposed 
rule change is substantially the same as the proposed rule change filed 
by New York Stock Exchange LLC related to the acquisition of MC by NYSE 
Euronext (the ``NYSE Rule Filing'').\19\
---------------------------------------------------------------------------

    \16\ 15 U.S.C. 78s(b)(3)(A).
    \17\ 17 CFR 240.19b-4(f)(6).
    \18\ 17 CFR 240.19b-4(f)(6)(iii).
    \19\ SR-NYSE-2008-60. Specifically, the Exchange represents that 
each exhibit filed with the proposed rule filing is identical to the 
corresponding exhibit filed with the NYSE Rule Filing.
---------------------------------------------------------------------------

    At any time within 60 days of the filing of the proposed rule 
change, the Commission may summarily abrogate such rule change if it 
appears to the Commission that such action is necessary or appropriate 
in the public interest, for the protection of investors, or otherwise 
in furtherance of the purposes of the Act.

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's Internet comment form (https://
www.sec.gov/rules/sro.shtml); or
     Send an e-mail to rule-comments@sec.gov. Please include 
File Number SR-NYSEArca-2008-82 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NYSEArca-2008-82. This 
file number should be included on the subject line if e-mail is used. 
To help the Commission process and review your comments more 
efficiently, please use only one method. The Commission will post all 
comments on the Commission's Internet Web site (https://www.sec.gov/
rules/sro.shtml). Copies of the submission, all subsequent amendments, 
all written statements with respect to the proposed rule change that 
are filed with the Commission, and all written communications relating 
to the proposed rule change between the Commission and any person, 
other than those that may be withheld from the public in accordance 
with the provisions of 5 U.S.C. 552, will be available for inspection 
and copying in the Commission's Public Reference Room, 100 F Street, 
NE., Washington, DC 20549, on official business days between the hours 
of 10 a.m. and 3 p.m. Copies of such filing also will be available for 
inspection and copying at the principal office of the Exchange. All 
comments received will be posted without change; the Commission does 
not edit personal identifying information from submissions. You should 
submit only information that you wish to make available publicly. All 
submissions should refer to File Number SR-NYSEArca-2008-82 and should 
be submitted on or before September 2, 2008.


[[Page 46689]]


    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\20\
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    \20\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Acting Secretary.
[FR Doc. E8-18422 Filed 8-8-08; 8:45 am]
BILLING CODE 8010-01-P

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