EXHIBIT 2.1
EXECUTION COPY
COMBINATION AGREEMENT
by and among
NYSE GROUP, INC.
EURONEXT N.V.
NYSE EURONEXT, INC.
and
JEFFERSON MERGER SUB, INC.
Dated as of June 1, 2006
Amended and Restated as of November 24, 2006
TABLE OF CONTENTS
PAGE
ARTICLE I
THE OFFER
Section 1.1. The Offer.......................................................3
Section 1.2. Effect of the Offer on Euronext Stock Options...................8
Section 1.3. Euronext Actions................................................8
ARTICLE II
THE MERGER
Section 2.1. The Merger......................................................9
Section 2.2. Closing.........................................................9
Section 2.3. Effective Time.................................................10
Section 2.4. Effect of the Merger on Common Stock...........................10
Section 2.5. Effect of the Merger on Options and Awards.....................11
Section 2.6. Delivery of Merger Consideration...............................12
Section 2.7. Restructuring of the Merger....................................14
ARTICLE III
POST-CLOSING REORGANIZATION
Section 3.1. Post-Closing Reorganization....................................15
Section 3.2. Effect of Post-Closing Reorganization on Euronext Stock
Options and Euronext Stock-Based Awards......................17
Section 3.3. Cooperation of Euronext........................................19
ARTICLE IV
CORPORATE NAME; EXECUTIVE OFFICES; GOVERNING DOCUMENTS
Section 4.1. Corporate Name and Executive Offices...........................20
Section 4.2. Certificates of Incorporation..................................20
Section 4.3. Bylaws.........................................................21
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ARTICLE V
BOARD AND MANAGEMENT COMMITTEE AT THE EFFECTIVE TIME
Section 5.1. Board of Directors of Holdco...................................22
Section 5.2. Nominating and Governance Committee of the Holdco Board
of Directors.................................................22
Section 5.2. Management Committee of Holdco at the Effective Time...........23
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Section 6.1. Representations and Warranties of NYSE Group...................23
Section 6.2. Representations and Warranties of Euronext.....................34
ARTICLE VII
COVENANTS
Section 7.1. Interim Operations.............................................44
Section 7.2. Acquisition Proposals..........................................46
Section 7.3. Stockholders Meetings..........................................49
Section 7.4. Reasonable Best Efforts; Regulatory Filings and Other Actions..50
Section 7.5. Access.........................................................53
Section 7.6. Affiliates.....................................................54
Section 7.7. Exchange Listing...............................................55
Section 7.8. Publicity......................................................55
Section 7.9. Taxation.......................................................55
Section 7.10. Expenses.......................................................55
Section 7.11. Indemnification; Directors' and Officers' Insurance............56
Section 7.12. Other Actions by NYSE Group and Euronext.......................57
ARTICLE VIII
CONDITIONS TO THE MERGER
Section 8.1. Condition to NYSE Group's Obligation to Effect the Merger......58
ARTICLE IX
TERMINATION
Section 9.1. Termination by Mutual Consent..................................58
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Section 9.2. Termination by Either Euronext or NYSE Group...................58
Section 9.3. Termination by NYSE Group......................................59
Section 9.4. Termination by Euronext........................................59
Section 9.5. Certain Additional Termination Rights..........................60
Section 9.6. Effect of Termination and Abandonment; Expense Reimbursement...60
ARTICLE X
MISCELLANEOUS AND GENERAL
Section 10.1. Survival.......................................................62
Section 10.2. Modification or Amendment......................................62
Section 10.3. Waiver of Conditions...........................................63
Section 10.4. Counterparts...................................................63
Section 10.5. GOVERNING LAW AND VENUE; WAIVER OF JURY TRIAL..................63
Section 10.6. Notices........................................................65
Section 10.7. Entire Agreement...............................................66
Section 10.8. No Third-Party Beneficiaries...................................66
Section 10.9. Obligations of Euronext and of NYSE Group......................66
Section 10.10. Transfer Taxes.................................................66
Section 10.11. Definitions....................................................66
Section 10.12. Severability...................................................66
Section 10.13. Interpretation; Construction...................................66
Section 10.14. Assignment.....................................................67
Annex I - Defined Terms
Annex II - Conditions to the Filing and Commencement of the Offer
Annex III - Conditions to the Completion of the Offer
Exhibit A - Form of Amended and Restated Certificate of Incorporation of Holdco
Exhibit B - Form of Amended and Restated Bylaws of Holdco
Exhibit C - Knowledge of NYSE Group
Exhibit D - Knowledge of Euronext
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AMENDED AND RESTATED COMBINATION AGREEMENT
This AMENDED AND RESTATED COMBINATION AGREEMENT (this "AGREEMENT"),
dated as of November 24, 2006 (the "EXECUTION DATE"), is by and among NYSE
Group, Inc., a Delaware corporation ("NYSE GROUP"), Euronext N.V., a company
organized under the laws of The Netherlands ("EURONEXT"), NYSE Euronext, Inc., a
Delaware corporation ("HOLDCO"), and Jefferson Merger Sub, Inc., a Delaware
corporation and a newly formed, wholly owned subsidiary of Holdco ("MERGER
SUB").
RECITALS
WHEREAS, NYSE Group, Euronext, Holdco and Merger Sub entered into that
certain Combination Agreement (the "ORIGINAL COMBINATION AGREEMENT"), dated as
of June 1, 2006 (the "ORIGINAL EXECUTION DATE"), pursuant to which NYSE Group
and Euronext agreed to effect a strategic combination of their businesses,
subject to the terms and conditions contained therein;
WHEREAS, in furtherance thereof, the parties hereto agreed in the
Original Combination Agreement that, upon the terms and subject to the
conditions set forth in the Original Combination Agreement: (a) Holdco (or a
wholly owned Subsidiary of Holdco) shall make an offer (the "OFFER") to acquire
all of the issued and outstanding shares, nominal value (euro)6 per share, of
Euronext (the "EURONEXT SHARES"), for a combination of shares of common stock,
par value $0.01 per share, of Holdco ("HOLDCO COMMON STOCK") and cash; and (b)
concurrently with the purchase by Holdco (or a wholly owned Subsidiary of
Holdco) of the Euronext Shares pursuant to the Offer, Merger Sub shall merge
with NYSE Group, with the entity surviving the merger as a wholly owned
subsidiary of Holdco (the "MERGER"), and, in the Merger, each share of NYSE
Group Common Stock shall be converted into the right to receive one share of
Holdco Common Stock;
WHEREAS, the parties also agreed in the Original Combination Agreement
that, prior to the consummation of the Offer and the Merger, Euronext would be
permitted to pay to the Euronext shareholders its previously announced special
distribution of (euro)3 per Euronext Share (the "SPECIAL EURONEXT
DISTRIBUTION"), which Special Euronext Distribution was paid on August 11, 2006;
WHEREAS, the parties hereto desire to amend and restate the Original
Combination Agreement in the form of this Agreement in order to, among other
things: (a) increase the size of the Board of Directors of Holdco immediately
following the Effective Time from 20 to 22 members, with an even number of U.S.
Persons (as defined in the form of Amended and Restated Bylaws of Holdco
attached hereto) and European Persons (as defined in the form of Amended and
Restated Bylaws of Holdco attached hereto), which parity will be maintained
unless the Nominating and Governance Committee and the Board of Directors of
Holdco, both equally composed of U.S. Persons and European Persons, decide
otherwise; (b) increase the size of the Management Committee of Holdco
immediately following the Effective Time from 12 to 14 members;
and (c) attach different forms of Amended and Restated Certificate of
Incorporation of Holdco and Amended and Restated Bylaws of Holdco;
WHEREAS, the respective Boards of Directors of NYSE Group, Holdco and
Merger Sub have each determined that the Merger and the Offer and the other
transactions contemplated by this Agreement are consistent with, and will
further, the respective business strategies and goals of its company, and are in
the best interests of their respective company's stockholders and, therefore,
have (a) approved the Offer, the Merger, this Agreement and the transactions
contemplated by this Agreement and (b) recommended that the NYSE Group
stockholders approve and adopt this Agreement and the transactions contemplated
by this Agreement;
WHEREAS, the Supervisory Board and the Managing Board of Euronext
(together, the "EURONEXT BOARDS") have each determined that the Merger and the
Offer and the other transactions contemplated by this Agreement are consistent
with, and will further, the business strategies and goals of Euronext, and are
in the best interests of Euronext, its shareholders, employees and other
stakeholders and, therefore, have (a) approved the Offer, the Merger, this
Agreement and the transactions contemplated by this Agreement and (b) adopted a
resolution recommending that the Euronext shareholders (i) approve this
Agreement and the transactions contemplated by this Agreement and (ii) accept
the Offer and tender their Euronext Shares in the Offer;
WHEREAS, it is intended that, for U.S. federal income tax purposes,
the Merger shall qualify as a reorganization within the meaning of Section
368(a) of the Internal Revenue Code of 1986, as amended (the "CODE"), and this
Agreement shall constitute a "plan of reorganization";
WHEREAS, consistent with the business strategies and goals of Holdco
as determined by its Board of Directors following the consummation of the Offer
and the Merger, it is the intention of the parties that (a) Holdco's
marketplaces will leverage the best of NYSE Group and Euronext's collective
technology sourced in an efficient manner to realize expected synergies of the
combination, (b) Holdco will continue to operate the horizontal business model
under which both NYSE Group and Euronext currently operate; (c) market
participants in each of the combined company's marketplaces will be regulated in
accordance with applicable local requirements; and (d) Holdco's management
committee will consist of an equal number of U.S. and non-U.S. members as
further described herein;
WHEREAS, each of the parties hereto desires to make certain
representations, warranties, covenants and agreements in connection with this
Agreement; and
WHEREAS, the parties intend that (a) all references in this Agreement
to "the date hereof" or "the date of this Agreement" shall refer to the Original
Execution Date; (b) the date on which the representations and warranties set
forth in Article VI are made by the applicable party shall not change as a
result of the execution of this
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Agreement and shall be made as of such dates as they were in the Original
Combination Agreement; and (c) each reference to "this Agreement" or "herein" in
the representations and warranties set forth in Articles VI shall refer to "the
Original Combination Agreement" (unless, in each of cases (a), (b) and (c),
expressly indicated otherwise in this Agreement or where the context otherwise
requires).
NOW, THEREFORE, in consideration of the premises, and of the
representations, warranties, covenants and agreements contained herein, the
parties hereto agree as follows:
ARTICLE I
THE OFFER
Section 1.1. THE OFFER.
(a) Provided that this Agreement shall not have been terminated in
accordance with Article IX, and subject to the prior satisfaction or waiver (if
and to the extent that such waiver is permitted by the GRAMF) of the conditions
set forth in Annex II hereto and Section 4.2(c), as promptly as practicable,
Holdco shall (or shall cause another direct or indirect wholly owned Subsidiary
of Holdco to) file the Offer with (i) the French Financial Market Authority
(AUTORITE DES MARCHES FINANCIERS) (the "AMF") within the meaning of the General
Rules of the AMF, as may be amended from time to time (the "GRAMF", which term
shall be deemed to include any other relevant rules, instructions and/or
recommendations of the AMF), and (ii) Belgian Banking, Finance, and Insurance
Commission (COMMISSION BANCAIRE, FINANCIERE, ET DES ASSURANCES) (the "CBFA").
Following approval by the AMF of the terms of the Offer, the Tender Offer
Prospectus filed by Holdco (NOTE D'INFORMATION) and the Tender Offer Prospectus
filed by Euronext (NOTE EN REPONSE), Holdco shall commence, within the meaning
of the GRAMF and the relevant Belgian regulations, the Offer to exchange each
Euronext Share for 0.98 of a share of Holdco Common Stock (the "STANDARD STOCK
AMOUNT") and (euro)21.32 in cash (the "STANDARD CASH AMOUNT" and, together with
the Standard Stock Amount, the "MIXED OFFER CONSIDERATION" (OFFRE MIXTE
PRINCIPALE)) with an option to receive in the Offer (including in any subsequent
offering period (PERIODE DE REOUVERTURE DE L'OFFRE)), in lieu of the Mixed Offer
Consideration, the Stock Election Consideration (in the OFFRE D'ECHANGE
SUBSIDIAIRE) or the Cash Election Consideration (in the OFFRE D'ACHAT
SUBSIDIAIRE), as each may be adjusted pursuant to this Section 1.1. In the event
that Holdco shall cause a Subsidiary of Holdco to file and commence the Offer,
each reference to Holdco in this Article I and ANNEXES II and III shall be
deemed, where applicable, to refer to such Subsidiary. For the avoidance of
doubt, none of the Mixed Offer Consideration, the Stock Election Consideration
or the Cash Election Consideration shall be reduced as a result of the payment
by Euronext of the Special Euronext Distribution.
(b) Subject to Section 1.1(h), each Euronext Share accepted by Holdco
pursuant to the Offer (including during any subsequent offering period (PERIODE
DE REOUVERTURE DE L'OFFRE)) shall be exchanged for the right to receive from
Holdco the Mixed
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Offer Consideration; PROVIDED that Holdco shall provide the Euronext
shareholders with a "mix and match election" in the Offer so that each holder of
Euronext Share may elect to receive in the Offer for each Euronext Share
tendered by such holder in the Offer, in lieu of the Mixed Offer Consideration,
either:
(i) a number of shares of Holdco Common Stock (the "STOCK ELECTION
AMOUNT") equal to the sum of (A) Standard Stock Amount and (B) the quotient
obtained by dividing the Standard Cash Amount by the Pre-Offering Stock
Price (such consideration, the "STOCK ELECTION CONSIDERATION" and persons
who shall have tendered their Euronext Shares in this offer (OFFRE
D'ECHANGE SUBSIDIAIRE) for the Stock Election Consideration are referred to
as having made a "STOCK ELECTION"); or
(ii) an amount in cash (the "CASH ELECTION AMOUNT"), without interest,
equal to the sum of (A) the Standard Cash Amount and (B) the product
obtained by multiplying the Standard Stock Amount by the Pre-Offering Stock
Price (such consideration, the "CASH ELECTION CONSIDERATION" and persons
who shall have tendered their Euronext Shares in this offer (OFFRE D'ACHAT
SUBSIDIAIRE) for the Cash Election Consideration are referred to as having
made a "CASH ELECTION").
(c) For purposes of this Section 1.1:
(i) the "CASH PERCENTAGE" means the quotient obtained by dividing (x)
the Standard Cash Amount by (y) the sum of (A) the Standard Cash Amount and
(B) the product obtained by multiplying the Pre-Offering Stock Price by the
Standard Stock Amount;
(ii) the "STOCK PERCENTAGE" means the fraction obtained by subtracting
the Cash Percentage from one;
(iii) the "RATIO" means the quotient obtained by dividing the Cash
Percentage by the Stock Percentage;
(iv) the "PRE-OFFERING STOCK PRICE" means the volume weighted average
price of NYSE Group Common Stock on the New York Stock Exchange for the
Pre-Offering Period, converted into euros using the average of the daily
noon buying rates for euros, as published by the Federal Reserve Bank of
New York, for the Pre-Offering Period; and
(v) the "PRE-OFFERING PERIOD" means the ten (10) consecutive trading
days ending on the day immediately prior to the filing of the Offer with
the AMF pursuant to Section 1.1(a) or ending on such other date as mutually
agreed between Euronext and NYSE Group.
(d) Notwithstanding Section 1.1(b), in each of the initial period of
the Offer (the "INITIAL OFFERING PERIOD") and the subsequent offering period
(PERIODE DE REOUVERTURE DE L'OFFRE) (the "SUBSEQUENT OFFERING PERIOD" and
together with the Initial
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Offering Period, the "OFFERING PERIODS" and each, an "OFFERING PERIOD"), the
number of Euronext Shares for which a Stock Election is made in any Offering
Period (the "STOCK ELECTION SHARES" FOR SUCH OFFERING PERIOD) and the number of
Euronext Shares for which a Cash Election shall be made in such Offering Period
(the "CASH ELECTION SHARES" FOR SUCH OFFERING PERIOD) shall be subject to an
adjustment mechanism designed to ensure that, in the aggregate, the quotient
obtained by dividing the Cash Election Shares for such Offering Period by the
Stock Election Shares for such Offering Period shall equal the Ratio. If the
Cash Election Shares for any Offering Period, divided by the Stock Election
Shares for such Offering Period is not equal to the Ratio, then one of the
following pro-ration and allocation adjustments shall occur for such Offering
Period:
(i) If the quotient obtained by dividing the Cash Election Shares for
such Offering Period by the Stock Election Shares for such Offering Period
exceeds the Ratio, then (A) each holder of a Stock Election Share for such
Offering Period shall receive in the Offer the Stock Election Consideration
in respect of such Stock Election Share, and (B) the number of Cash
Election Shares for such Offering Period shall be reduced to the number
required to achieve the Ratio (with such reduction to be pro rata among the
holders of Euronext Shares who have made the Cash Election in such Offering
Period, based on the number of Euronext Shares for which they have made the
Cash Election in such Offering Period). The adjusted number of Cash
Election Shares for such Offering Period shall be rounded down to the
nearest whole Cash Election Share. All Euronext Shares deemed not to be
Cash Election Shares as a result of this pro-ration and allocation shall
not be deemed to be Cash Election Shares or Stock Election Shares and shall
receive the Mixed Offer Consideration.
(ii) If the quotient obtained by dividing the Cash Election Shares for
such Offering Period by the Stock Election Shares for such Offering Period
is less than the Ratio, then (A) each holder of a Cash Election Share for
such Offering Period shall receive in the Offer the Cash Election
Consideration in respect of such Cash Election Share, and (B) the number of
Stock Election Shares for such Offering Period shall be reduced to the
number required to achieve the Ratio (with such reduction to be pro rata
among the holders of Euronext Shares who have made the Stock Election in
such Offering Period, based on the number of Euronext Shares for which they
have made the Stock Election in such Offering Period). The adjusted number
of Stock Election Shares for such Offering Period shall be rounded down to
the nearest whole Stock Election Share. All Euronext Shares deemed not to
be Stock Election Shares as a result of this pro-ration and allocation
shall not be deemed to be Cash Election Shares or Stock Election Shares and
shall receive the Mixed Offer Consideration.
(e) After the filing and commencement of the Offer as set forth in
Section 1.1(a), Holdco's obligation to accept for exchange or payment, and to
exchange or pay for, any Euronext Shares validly tendered and not withdrawn
prior to the expiration of the Offer (as it may be extended in accordance with
applicable Laws, the "EXPIRATION TIME") shall be subject only to the
satisfaction or waiver of the conditions set forth in
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ANNEX III, including the condition that there shall be validly tendered in
accordance with the terms of the Offer prior to the Expiration Time and not
withdrawn, in each case in accordance with applicable Laws, a number of Euronext
Shares that represents at least two-thirds of the outstanding Euronext Shares as
of the closing of the Offer, as it may be extended by Holdco in accordance with
applicable Laws (the "MINIMUM CONDITION"); PROVIDED, HOWEVER, that, after
consultation with Euronext, Holdco may, prior to the filing of the Offer with
the AMF, change the Minimum Condition so that it is a number of Euronext Shares
that represents not less than a majority of the Euronext Shares and not less
than a majority of the Euronext voting power, in each case outstanding on a
Fully Diluted Basis as of the closing of the Offer, as it may be extended by
Holdco in accordance with applicable Laws. As used in this Agreement, "FULLY
DILUTED BASIS" means, as of any particular time, the number of Euronext Shares
issued and outstanding at such time after taking into account all Euronext
Shares issuable upon the conversion of Euronext's convertible securities or upon
the exercise of any options, warrants or rights to purchase or subscribe for
shares of the capital stock of Euronext.
(f) Provided that this Agreement shall not have been earlier
terminated in accordance with Article IX, and subject to the prior satisfaction
or waiver of the conditions set forth in ANNEX III in accordance with the terms
of ANNEX III, Holdco shall promptly consummate the Offer in accordance with its
terms and applicable Law, and accept for exchange and payment, and exchange and
pay for, all Euronext Shares tendered and not withdrawn in accordance with
applicable Law, promptly following the acceptance of Euronext Shares for
exchange and payment pursuant to the Offer. Holdco expressly reserves the right
to increase the Standard Stock Amount and/or the Standard Cash Amount; PROVIDED
that any such increase shall be reflected in the Offer Documents or any
amendment thereof and filed with the SEC, the AMF and the CBFA, in each case as
required by applicable Law.
(g) As promptly as practicable after the date of this Agreement, NYSE
Group and Holdco shall prepare, and Holdco shall file with the U.S. Securities
and Exchange Commission (the "SEC"), a registration statement on Form S-4
(together with any supplements or amendments thereto, the "REGISTRATION
STATEMENT") to register the offer and sale of Holdco Common Stock pursuant to
the Offer and the Merger. The Registration Statement will include (1) a proxy
statement/prospectus (the "PROXY STATEMENT/PROSPECTUS") to be used for the NYSE
Group Stockholders Meeting to approve and adopt this Agreement and the Merger
and to approve certain aspects of the Holdco certificate of incorporation that
will be in effect after the Merger; (2) a shareholder circular/prospectus (the
"SHAREHOLDER CIRCULAR/PROSPECTUS") to be used for the Euronext Stockholders
Meeting to approve this Agreement and the transactions contemplated by this
Agreement and (3) a prospectus to be used as a prospectus sent to U.S. holders
of Euronext Shares for the Offer (the "OFFER PROSPECTUS" and together with the
Proxy Statement/Prospectus and the Shareholder Circular/Prospectus, the "S-4
PROSPECTUSES"); PROVIDED that, at its option, NYSE Group may file the proxy
statement to be used for the NYSE Group Stockholders Meeting separately from the
Registration Statement. In addition, as promptly as practicable after the date
of this Agreement, NYSE Group, Euronext and Holdco shall prepare, and Holdco
shall file with the AMF a Share
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Registration Document (DOCUMENT DE BASE) for the Offer in the form provided by
Commission Regulation (EC) No. 809/2004 of April 2004 as implemented by the
GRAMF (the "HOLDCO SHARE REGISTRATION DOCUMENT"). As soon as practicable after
the satisfaction or waiver (if and to the extent that such waiver is permitted
by the GRAMF) of the conditions set forth in ANNEX II, (i) each of Holdco and
Euronext shall file with the AMF and the CBFA a Tender Offer Prospectus (NOTE
D'INFORMATION and NOTE EN REPONSE, respectively) in accordance with the GRAMF
and applicable Belgian regulations (it being agreed that the Tender Offer
Prospectus filed by Euronext shall include, if and to the extent required, a
fairness opinion (ATTESTATION X'XXXXXX) delivered by an independent expert in
accordance with Articles 261-1 ET SEQ. of the GRAMF) and the related letter of
transmittal form and other ancillary documents with respect to the Offer
(together with all amendments, supplements and exhibits thereto and the Holdco
Share Registration Document and any update of the presentation of Euronext for
purposes of the Offer, the "EUROPEAN EXCHANGE OFFER DOCUMENTS"), and (ii) Holdco
shall file with the SEC a prospectus pursuant to Rule 424 under the U.S.
Securities Act of 1933, as amended (the "SECURITIES ACT"), that will contain or
incorporate by reference all or part of the Offer Prospectus and the related
letter of transmittal form and all other ancillary documents with respect to the
Offer (together with all amendments, supplements and exhibits thereto, the
"PROSPECTUS") (the Prospectus, the Registration Statement and such documents
included therein pursuant to which the Offer will be made, together with any
amendments and supplements thereto, the "U.S. EXCHANGE OFFER DOCUMENTS" and,
together with the European Exchange Offer Documents, the "OFFER DOCUMENTS"). The
parties hereto agree to take all steps necessary to cause the Registration
Statement, the Share Registration Document, the European Exchange Offer
Documents and the U.S. Exchange Offer Documents to be filed with the SEC, the
AMF and the CBFA, as applicable, and disseminated to holders of NYSE Group
Common Stock and Euronext Shares, as applicable, as and to the extent required
by applicable Law. The parties agree to correct promptly any information
provided by it for use in the Offer Documents if and to the extent that such
information shall have become false or misleading in any material respect or as
otherwise required by Law. The parties further agree to take all steps necessary
to cause the Offer Documents, as so corrected, to be filed with the SEC, the AMF
and the CBFA and disseminated to holders of NYSE Group Stock and Euronext
Shares, as applicable, in each case as and to the extent required by applicable
Law.
(h) Notwithstanding any other provision of this Agreement, no
fractional shares of Holdco Common Stock will be issued to the Euronext
Shareholders in the Offer. Any tendering holder who would be entitled to receive
a fractional share of Holdco Common Stock but for this Section 1.1(h) shall
instead receive a cash payment representing such holder's proportionate interest
in the net proceeds from the sale on a regulated market for the account of the
tendering shareholders of the aggregate fractional shares of Holdco Common Stock
that the tendering holders otherwise would have received. Any such sale shall be
made within ten (10) business days or such shorter period as may be required by
applicable Law after the settlement of the Offer by an agent designated by
Holdco. In no event will interest be paid on the cash to be received in lieu of
any fraction of a share of Holdco Common Stock.
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(i) NYSE Group and Euronext may agree to split the Offer into two or
more separate exchange offers, including a separate U.S. offer and a non-U.S.
offer. If the Offer shall be split into multiple exchange offers, each reference
to the "Offer" set forth in this Agreement and the Annexes hereto shall refer to
each of these separate offers unless the context otherwise requires. NYSE Group
and Euronext agree that the Offer filed with the AMF and the CBFA shall be
treated as one Offer (including for purposes of bidding procedure and timing),
and that all Euronext Shares tendered in the Offer filed with the AMF and CBFA
shall be treated as Euronext Shares having been tendered in a single Offer for
purposes of determining whether the Minimum Condition has been satisfied and for
purposes of determining proration and allocation.
(j) Except to the extent prohibited by applicable Law, Holdco shall be
entitled to deduct and withhold, or cause the Exchange Agent to deduct and
withhold, from the Mixed Offer Consideration, Stock Election Consideration and
Cash Election Consideration payable to any tendering holder of Euronext Shares
such amounts as it is required to deduct and withhold with respect to the making
of such payment under the Code and the rules and regulations promulgated
thereunder, or any provision of state, local or non-U.S. tax law. To the extent
that amounts are so withheld by or on behalf of Holdco, as the case may be, such
withheld amounts shall be treated for all purposes of this Agreement as having
been paid to the holder of the Euronext Shares in respect of which such
deduction and withholding was made.
(k) If Holdco and Euronext have reasonably estimated prior to the
filing of the Offer with the AMF that the aggregate cost of all stamp duty that
may be due under article 978 of the French tax code in connection with the Offer
shall be (euro)500,000 or less, then Holdco shall bear such aggregate cost in
connection with the Offer, and such Holdco undertaking shall be set forth in the
Tender Offer Prospectus filed by Holdco (NOTE D'INFORMATION).
Section 1.2. EFFECT OF THE OFFER ON EURONEXT STOCK OPTIONS. Unless
NYSE Group and Euronext agree otherwise and subject to applicable Law, the Offer
shall not include any outstanding option to purchase Euronext Shares, but, in
accordance with the GRAMF, shall include any Euronext Share that is purchased or
subscribed for as a result of the exercise of any such option prior to the
Expiration Time.
Section 1.3. EURONEXT ACTIONS.
(a) In connection with the Offer, Euronext shall use reasonable best
efforts, to the extent consistent with applicable Law, to promptly furnish or
cause to be furnished to Holdco mailing labels, security position listings and
all available listings and computer files containing the names and addresses of
the record and beneficial holders of the Euronext Shares, in each case as of the
most recent practicable date, to facilitate the transmission of the Offer, and
to promptly furnish Holdco with such additional information and assistance
(including, but not limited to, lists of holders of Euronext Shares, updated
periodically, and their addresses, mailing labels and lists of security
positions) as Holdco or its agent(s) may reasonably request for the purpose of
communicating the Offer to the
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record and beneficial holders of Euronext Shares, it being understood that the
majority of the Euronext Shares are registered in the name of Euroclear France.
(b) Euronext hereby approves of, and consents to, the Offer and the
Merger and represents and warrants that the Euronext Boards, at meetings duly
called and held, have (i) received an opinion from their financial advisors,
Xxxxxx Xxxxxxx International and ABN AMRO, to the effect that the consideration
to be received by holders of Euronext Shares who tender their Euronext Shares in
the Offer is fair from a financial point of view to the Euronext shareholders,
(ii) determined that this Agreement and the transactions contemplated hereby,
including the Offer and the Merger, are advisable and are fair to and in the
best interests of Euronext, its shareholders and employees and other
stakeholders; (iii) approved this Agreement and the transactions contemplated
hereby, including the Offer and the Merger; and (iv) adopted a resolution
recommending that the Euronext shareholders approve this Agreement and the
transactions contemplated by this Agreement and accept the Offer and tender
their Euronext Shares in the Offer (the recommendation referred to in this
clause (iv) is referred to as the "EURONEXT RECOMMENDATION"). Euronext hereby
consents to the inclusion in the Offer Documents of the Euronext Recommendation
and approval of the Euronext Boards described in the immediately preceding
sentence, and Euronext shall not permit the Euronext Recommendation and approval
of the Euronext Boards or any component thereof to be modified in any manner
adverse to NYSE Group or Holdco or to be withdrawn by the Euronext Boards or any
committee thereof, except as provided, and only to the extent set forth, in
Section 7.2.
ARTICLE II
THE MERGER
Section 2.1. THE MERGER. Upon the terms and subject to the conditions
set forth in this Agreement, at the Effective Time, the Merger shall occur
pursuant to which NYSE Group shall merge with and into Merger Sub, and the
separate corporate existence of NYSE Group shall thereupon cease. Merger Sub
shall be the surviving corporation in the Merger (the "SURVIVING CORPORATION"),
shall be renamed "NYSE Group, Inc.", and shall continue its existence under the
laws of the State of Delaware, with all its rights, privileges, immunities,
powers and franchises. After the Merger, the Surviving Corporation shall be a
wholly owned subsidiary of Holdco. The Merger shall have the effects specified
in the Delaware General Corporation Law, as amended (the "DGCL").
Section 2.2. CLOSING. The closing of the Merger (the "CLOSING") shall
take place at the offices of Wachtell, Lipton, Xxxxx & Xxxx, 00 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m., New York time, on the date (the
"CLOSING DATE") on which the condition set forth in Article VIII shall be
satisfied or waived (subject to applicable Law), unless another date, time or
place is agreed to by NYSE Group and Euronext.
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Section 2.3. EFFECTIVE TIME.
(a) As soon as practicable following the satisfaction or waiver
(subject to applicable Law) of the condition set forth in Article VIII, on the
Closing Date, NYSE Group and Merger Sub shall file a certificate of merger
relating to the Merger (the "CERTIFICATE OF MERGER") with the Secretary of State
of Delaware, in such form as is required by and executed and acknowledged in
accordance with the relevant provisions of the DGCL, and make all other filings
or recordings required under the DGCL.
(b) The Merger shall become effective at (i) the date and time on
which the Certificate of Merger is duly filed with the Secretary of State of
Delaware as required to effect the Merger, or (ii) such subsequent date and time
as NYSE Group and Euronext shall agree and as shall be specified in the
Certificate of Merger (such time that the Merger shall become effective being
the "EFFECTIVE TIME").
Section 2.4. EFFECT OF THE MERGER ON COMMON STOCK.
(a) As a result of the Merger and without any action on the part of
the holder of any capital stock of NYSE Group or Merger Sub, at the Effective
Time:
(i) each share of NYSE Group Common Stock issued and outstanding
immediately prior to the Effective Time (other than any share of NYSE Group
Common Stock owned by NYSE Group or Merger Sub and in each case not held on
behalf of third parties (each, an "EXCLUDED SHARE")) shall automatically be
converted into the right to receive one fully paid and nonassessable share
of Holdco Common Stock (the "MERGER CONSIDERATION");
(ii) each Excluded Share shall cease to be outstanding, shall be
cancelled and retired without payment of any consideration therefor and
shall cease to exist; and
(iii) each share of common stock, par value $0.01 per share, of Merger
Sub (each, a "MERGER SUB COMMON STOCK") issued and outstanding immediately
prior to the Effective Time shall be converted into one fully paid and
nonassessable share of common stock, par value $0.01 per share, of the
Surviving Corporation, and the Surviving Corporation shall be a wholly
owned subsidiary of Holdco.
(b) From and after the Effective Time, no NYSE Group Common Stock
shall remain outstanding and all NYSE Group Common Stock shall be cancelled and
retired and shall cease to exist. Each entry in the records of NYSE Group or its
transfer agent formerly representing shares of NYSE Group Common Stock (the
"BOOK-ENTRY INTERESTS") shall thereafter represent only the right to receive the
Merger Consideration and any distribution or dividend pursuant to Section
2.6(d).
(c) With respect to any share of NYSE Group Common Stock whose
transfer was restricted as of immediately prior to the Effective Time pursuant
to the Amended and Restated Certificate of Incorporation of NYSE Group (each, a
"RESTRICTED
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SHARE"), each share of Holdco Common Stock issued in the Merger in respect of
such Restricted Share shall continue to be restricted, on the same terms and
conditions as were applicable to the Restricted Share immediately prior to the
Effective Time except that references to NYSE Group shall be to Holdco. Such
restrictions on transfer shall be set forth in the New Holdco Charter.
(d) In accordance with Section 262 of the DGCL, no appraisal rights
shall be available to holders of NYSE Group Common Stock in connection with the
Merger.
Section 2.5. EFFECT OF THE MERGER ON OPTIONS AND AWARDS.
(a) Each option to purchase shares of NYSE Group Common Stock (a
"NYSE GROUP STOCK OPTION") granted under the employee and director stock plans
of NYSE Group (the "NYSE GROUP STOCK PLANS"), whether vested or unvested, that
is outstanding immediately prior to the Effective Time shall cease to represent
a right to acquire shares of NYSE Group Common Stock and shall be converted, at
the Effective Time, into a Holdco Stock Option on the same terms and conditions
as were applicable under such NYSE Group Stock Option. The number of shares of
Holdco Common Stock subject to each such Holdco Stock Option shall be equal to
the number of shares of NYSE Group Common Stock subject to each such NYSE Group
Stock Option and such Holdco Stock Option shall have an exercise price per share
equal to the per share exercise price specified in such NYSE Group Stock Option.
(b) At the Effective Time, each restricted stock unit or deferred
stock unit measured in shares of NYSE Group Common Stock (each, a "NYSE GROUP
STOCK-BASED AWARD"), whether vested or unvested, which is outstanding
immediately prior to the Effective Time shall cease to represent a restricted
stock unit or deferred stock unit with respect to shares of NYSE Group Common
Stock and shall be converted, at the Effective Time, into a Holdco Stock-Based
Award, on the same terms and conditions as were applicable under the NYSE Group
Stock-Based Awards. The number of shares of Holdco Common Stock subject to each
such Holdco Stock-Based Award shall be equal to the number of shares of NYSE
Group Common Stock subject to the NYSE Group Stock-Based Award. All dividend
equivalents credited to the account of each holder of a NYSE Group Stock-Based
Award as of the Effective Time shall remain credited to such holder's account
immediately following the Effective Time, subject to adjustment in accordance
with the foregoing.
(c) As soon as practicable after the Effective Time, Holdco shall
deliver to the holders of NYSE Group Stock Options and NYSE Group Stock-Based
Awards appropriate notices setting forth such holders' rights pursuant to the
respective NYSE Group Stock Plans and agreements evidencing the grants of such
NYSE Group Stock Options and NYSE Group Stock-Based Awards and stating that such
NYSE Group Stock Options and NYSE Group Stock-Based Awards and agreements have
been assumed by Holdco and shall continue in effect on the same terms and
conditions (subject to the
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adjustments required by this Section 2.5 after giving effect to the Merger and
the terms of the NYSE Group Stock Plans).
(d) Prior to the Effective Time, NYSE Group shall take all necessary
action for the adjustment of NYSE Group Stock Options and NYSE Group Stock-Based
Awards under this Section 2.5. Holdco shall reserve for issuance a number of
shares of Holdco Common Stock at least equal to the number of shares of Holdco
Common Stock that will be subject to Holdco Stock Options and Holdco Stock-Based
Awards or the Equity Arrangements as a result of the actions contemplated by
this Section 2.5 and Section 3.2. As soon as practicable following the Effective
Time, Holdco shall file a registration statement on Form S-8 (or any successor
form, or if Form S-8 is not available, other appropriate forms) with respect to
the shares of Holdco Common Stock subject to such Holdco Stock Options and
Holdco Stock-Based Awards and shall maintain the effectiveness of such
registration statement or registration statements (and maintain the current
status of the prospectus or prospectuses contained therein) for so long as such
Holdco Stock Options and Holdco Stock-Based Awards remain outstanding.
Section 2.6. DELIVERY OF MERGER CONSIDERATION.
(a) EXCHANGE AGENT. Prior to the Effective Time, NYSE Group shall
appoint a commercial bank or trust company, or a subsidiary thereof, to act as
exchange agent hereunder (the "EXCHANGE AGENT"). On or prior to the Effective
Time, (i) Holdco shall deposit, or cause to be deposited, with the Exchange
Agent, for the benefit of holders of record of shares of NYSE Group Common Stock
as of immediately prior to the Effective Time, shares of Holdco Common Stock
issuable pursuant to Section 2.4 in exchange for outstanding shares of NYSE
Group Common Stock upon delivery to the Exchange Agent of instructions for use
in effecting the transfer and cancellation of Book-Entry Interests in exchange
for the applicable Merger Consideration pursuant to the provisions of Article II
(such shares of Holdco Common Stock being hereinafter referred to as the
"EXCHANGE FUND").
(b) MERGER TRANSMITTAL LETTER. NYSE Group and Holdco shall cause
appropriate transmittal materials (the "MERGER TRANSMITTAL LETTER"), to be
provided by the Exchange Agent to holders of record of shares of NYSE Group
Common Stock as soon as practicable after the Effective Time advising such
holders of the effectiveness of the Merger and the procedure for providing
instructions to the Exchange Agent to effect the transfer and cancellation of
Book-Entry Interests in exchange for the Merger Consideration.
(c) After the Effective Time, and upon delivery to the Exchange Agent
of instructions authorizing transfer and cancellation of Book-Entry Interests in
accordance with the terms of the Merger Transmittal Letter, the holder of such
Book-Entry Interests shall be entitled to receive in exchange therefor a number
of shares of Holdco Common Stock in respect of the aggregate Merger
Consideration that such holder is entitled to receive pursuant to Section 2.4
(after taking into account all shares of NYSE Group Common Stock then held by
such holder), and the Book-Entry Interests that are the subject
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of such authorization shall forthwith be cancelled. No interest will be paid or
accrued on any amount payable upon such transfer and cancellation of any
Book-Entry Interests. In the event of a transfer of ownership of NYSE Group
Common Stock that is not registered in the transfer records of NYSE Group, the
proper number of shares of Holdco Common Stock may be issued to such a
transferee if written instructions authorizing the transfer of any Book-Entry
Interests are presented to the Exchange Agent, in any case, accompanied by all
documents required to evidence and effect such transfer and to evidence that any
applicable stock transfer Taxes have been paid. If any shares of Holdco Common
Stock to be issued in a name other than that in which any Book-Entry Interests
are registered, it shall be a condition of such exchange that the Person
requesting such exchange shall pay any transfer or other Taxes required by
reason of the issuance of shares of Holdco Common Stock in a name other than
that of the registered holder of any Book-Entry Interests, or shall establish to
the satisfaction of Holdco or the Exchange Agent that such Tax has been paid or
is not applicable. For the purposes of this Agreement, the term "PERSON" means
any individual, corporation (including not-for-profit), general or limited
partnership, limited liability company, joint venture, estate, trust,
association, organization, Governmental Entity or Self-Regulatory Organization
or other entity of any kind or nature. "SELF-REGULATORY ORGANIZATION" means any
U.S. or non-U.S. commission, board, agency or body that is not a Governmental
Entity but is charged with the supervision or regulation of brokers, dealers,
securities underwriting or trading, stock exchanges, commodities exchanges,
electronic communication networks (ECNs), insurance companies or agents,
investment companies or investment advisers.
(d) DISTRIBUTIONS WITH RESPECT TO UNEXCHANGED SHARES; VOTING. All
shares of Holdco Common Stock to be issued pursuant to the Merger shall be
deemed issued and outstanding as of the Effective Time and whenever a dividend
or other distribution is declared by Holdco in respect of Holdco Common Stock,
the record date for which is at or after the Effective Time, that declaration
shall include dividends or other distributions in respect of all shares issuable
pursuant to this Agreement. No dividends or other distributions in respect of
the Holdco Common Stock shall be paid to any holder of any Book-Entry Interests
until the instructions for transfer and cancellation provided in this Article II
have been delivered to the Exchange Agent. Subject to the effect of applicable
Laws, following delivery to the Exchange Agent of such instructions with respect
to Book-Entry Interests, there shall be issued to the holder of the shares of
Holdco Common Stock issued in exchange therefor, without interest, (A) at the
time of such surrender or delivery of such instructions, the dividends or other
distributions with a record date after the Effective Time theretofore payable
with respect to such Holdco Common Stock and not paid and (B) at the appropriate
payment date, the dividends or other distributions payable with respect to such
shares of Holdco Common Stock with a record date after the Effective Time but
with a payment date subsequent to surrender.
(e) TRANSFERS. At or after the Effective Time, there shall be no
transfers on the stock transfer books of NYSE Group of NYSE Group Common Stock
that were outstanding immediately prior to the Effective Time.
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(f) FRACTIONAL SHARES. No fractional shares of Holdco Common Stock
will be issued in the Merger to any holder of shares of NYSE Group Common Stock.
(g) TERMINATION OF EXCHANGE FUND. Any portion of the Exchange Fund
(including any Holdco Common Stock) that remains unclaimed by the former
stockholders of NYSE Group for 180 days after the Effective Time shall be
delivered to Holdco. Any former stockholders of NYSE Group who have not
theretofore complied with this Article II shall thereafter look only to Holdco
for delivery of any shares of Holdco Common Stock of such stockholders and
payment of any dividends and other distributions in respect of Holdco Common
Stock of such stockholders payable and/or issuable pursuant to this Article II
upon delivery to the Exchange Agent of written instructions for the transfer and
cancellation of any Book-Entry Interests, in each case, without any interest
thereon. Notwithstanding the foregoing, none of Holdco, NYSE Group, Merger Sub,
any surviving entity in the Merger, the Exchange Agent or any other Person shall
be liable to any former holder of NYSE Group Common Stock for any amount
properly delivered to a public official pursuant to applicable abandoned
property, escheat or similar Laws.
(h) WITHHOLDING RIGHTS. Holdco shall be entitled to deduct and
withhold, or to cause the Exchange Agent to deduct and withhold, from any
consideration payable pursuant to the Merger to any Person who was a holder of
NYSE Group Common Stock, NYSE Group Stock Option or NYSE Group Stock-Based Award
immediately prior to the Effective Time such amounts as it is required to deduct
and withhold with respect to the making of such payment under the Code and the
rules and regulations promulgated thereunder, or any provision of state, local
or non-U.S. tax law. To the extent that amounts are so withheld by Holdco or the
Exchange Agent, as the case may be, such withheld amounts shall be treated for
all purposes of this Agreement as having been paid to the holder of the NYSE
Group Common Stock, NYSE Group Stock Option or NYSE Group Stock-Based Award, as
the case may be, in respect of which such deduction and withholding was made.
Section 2.7. RESTRUCTURING OF THE MERGER. The parties hereto hereby
agree and acknowledge that, with the prior consent of Euronext (which consent
shall not be unreasonably withheld), NYSE Group may restructure the Merger;
PROVIDED that such restructuring shall not (i) reduce or change the form of the
Mixed Offer Consideration, the Stock Election Consideration or the Cash Election
Consideration, (ii) materially delay or prevent consummation of the transactions
contemplated by this Agreement, or (iii) prevent or materially impede the
qualification of the Merger as a reorganization within the meaning of Section
368(a) of the Code.
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ARTICLE III
POST-CLOSING REORGANIZATION
Section 3.1. POST-CLOSING REORGANIZATION.
(a) Holdco intends, simultaneously with or as soon as possible after
the Closing, to effectuate a corporate reorganization (the "POST-CLOSING
REORGANIZATION") of certain Subsidiaries of Holdco (including Euronext and its
Subsidiaries). The Post-Closing Reorganization may include any of the following
(each of the following, a "PRE-APPROVED POST-CLOSING REORGANIZATION"), each of
which has been, to the extent required, approved by the Euronext Boards:
(i) if 95% or more of the outstanding Euronext Shares shall have been
acquired in the Offer, Holdco (or a direct or indirect wholly owned
Subsidiary of Holdco) may commence a compulsory acquisition of Euronext
Shares from any remaining minority shareholder in accordance with Section
2:92a of the Dutch Civil Code and/or an acquisition of Euronext Shares from
any remaining minority shareholder in accordance with Articles 236-1 ET
SEQ. of the GRAMF;
(ii) if less than 95% of the outstanding Euronext Shares shall have
been acquired in the Offer:
(A) if the Euronext Shares have been acquired by Holdco, Holdco
may transfer the Euronext Shares immediately following the
consummation of the Offer to a newly formed, direct or indirect wholly
owned Dutch Subsidiary of Holdco ("DUTCH HOLDCO") in exchange for
shares of Dutch Holdco; and
(B) Euronext may, and Holdco may cause Euronext to, transfer all
of its assets and liabilities to a newly formed, wholly owned Dutch
Subsidiary of Euronext ("EURONEXT SUB") in exchange for shares of
Euronext Sub or by way of a legal demerger; and
(C) Euronext may, and Holdco may cause Euronext to, transfer the
shares in Euronext Sub to Dutch Holdco in exchange for shares of
Holdco Common Stock and cash and, then, cause Euronext to distribute
such shares of Holdco Common Stock and cash to its shareholders in a
complete liquidation of Euronext. To the extent that a liquidating
distribution would be made to Dutch Holdco, Dutch Holdco may
substitute a promissory note for the portion of the consideration
payable for the Euronext Sub shares, which promissory note would be
distributed to Dutch Holdco in the liquidation of Euronext; or
(D) Euronext may, and Holdco may cause Euronext to, merge with
and into a newly formed, wholly owned Dutch Subsidiary of Dutch
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Holdco or Holdco ("DUTCH MERGERCO"), pursuant to which the Euronext
shareholders will receive shares in Dutch Mergerco; after such merger,
Holdco may cause Dutch Mergerco to transfer the shares in Euronext Sub
to Dutch Holdco in exchange for shares of Holdco Common Stock and cash
and, then, cause Dutch Mergerco to distribute such shares of Holdco
Common Stock and cash to the Dutch Mergerco shareholders in a complete
liquidation of Dutch Mergerco. To the extent that a liquidating
distribution would be made to Dutch Holdco, Dutch Holdco may
substitute a promissory note for the portion of the consideration
payable for the Euronext Sub shares, which promissory note would be
distributed to Dutch Holdco in the liquidation of Dutch Mergerco;
PROVIDED that, in each case, the Post-Closing Reorganization shall be structured
with the goal of providing holders of Euronext Shares who do not exchange their
Euronext Shares in the Offer with the same number of shares of Holdco Common
Stock and the same amount of cash (without taking into account the different tax
treatment or withholding requirements that may apply) that such holders would
have received in the Offer had such holder tendered its Euronext Shares in the
Offer (and not made the Stock Election or the Cash Election) (it being
understood that, in the Post-Closing Reorganization, holders of Euronext Shares
may receive a different amount or form of consideration than they would have
received in the Offer because, among other things, (i) certain Post-Closing
Reorganization steps may require the payment of only cash instead of stock and
cash; (ii) the consideration issued in the Post-Closing Reorganization may be
determined by a court; and (iii) the tax consequences to a holder of Euronext
Shares of receiving consideration in the Post-Closing Reorganization may be
different than they would be if such holder had tendered its Euronext Shares in
the Offer).
(b) Holdco shall have the right to change the structure of the
Post-Closing Reorganization, which changed structure may include, without
limitation, (i) the amendment of the Articles of Association of Euronext to
permit the creation, among other things, of separate classes of shares, (ii) the
distribution of an extraordinary dividend on the shares of Euronext or a
particular class or classes of shares of Euronext, (iii) the sale and transfer
by Euronext, or any of its Subsidiaries, to Holdco or any affiliate or
Subsidiary of Holdco, of all or a portion of the assets of Euronext or its
Subsidiaries, (iv) the effectuation by Euronext and one or more Dutch
Subsidiaries of Holdco of a legal merger within the meaning of Section 2:309 of
the Dutch Civil Code, (v) the request for termination of the listing of the
Euronext Shares on Euronext Paris, (vi) a liquidation of Euronext, (vii) the
contribution of assets to Euronext in exchange for Euronext Shares (with the
exclusion of preemptive rights, if any, of other shareholders, all in accordance
with applicable Law) or (viii) any one or more combinations of any of the
foregoing actions, all of which shall be conducted in accordance with applicable
Law; PROVIDED, HOWEVER, that Holdco shall not change the structure of the
Post-Closing Reorganization without the prior written consent of Euronext (which
consent shall not be withheld unless the Euronext Boards, after consultation
with their outside legal counsel, determine in good faith that such consent
would result in a breach of its directors' fiduciary duties under applicable
Law; it being understood that, in making this determination, the Euronext
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Boards shall consider the interests of all shareholders of Euronext to the
extent that it considers the interests of any shareholder or group of
shareholders of Euronext) and shall have the right to propose alternatives for
the Post-Closing Reorganization, which Holdco and NYSE Group shall consider in
good faith. Holdco, NYSE Group and Euronext shall cooperate with each other in
identifying and obtaining any Dutch tax clearances necessary or desirable in
connection with the Post-Closing Reorganization.
(c) Subject to Sections 3.1(a) and 3.1(b), the Post-Closing
Reorganization shall be structured so that, in the opinion of counsel to NYSE
Group, the Post-Closing Reorganization, together with the Offer, constitutes a
transaction in which Euronext shareholders recognize gain or loss for U.S.
federal income tax purposes, unless, at the election of NYSE Group, it is
desirable to allow the Holdco Common Stock issued in the Offer and Post-Closing
Reorganization to be received tax free by U.S. holders of Euronext Shares, in
which case the Post-Closing Reorganization shall be structured so that, in the
opinion of counsel to NYSE Group, the Post-Closing Reorganization, together with
the Offer, constitutes either a reorganization (within the meaning of Section
368 of the Code) or part of a transfer of Euronext Shares described in Section
351 of the Code.
(d) The parties acknowledge that they have committed to the College of
Regulators that, if less than half of the issued share capital of Euronext is
represented at the Euronext Stockholders Meeting, Holdco will not commence the
Post-Closing Reorganization unless either (i) the Euronext shareholders approve
the proposal to approve this Agreement and the transactions contemplated by this
Agreement, including the Post-Closing Reorganization, presented at the Euronext
Stockholders Meeting (or any adjournment or postponement thereto); or (ii)
Holdco shall have acquired at least two-thirds of the outstanding Euronext
Shares as a result of the Offer (as extended, if applicable) and any subsequent
transactions to the extent permitted by applicable Law; PROVIDED, HOWEVER, that
the parties further acknowledge that the College of Regulators may waive this
commitment, in which case the parties shall not be bound by such commitment.
Section 3.2. EFFECT OF POST-CLOSING REORGANIZATION ON EURONEXT STOCK
OPTIONS AND EURONEXT STOCK-BASED AWARDS.
(a) CONVERSION. Except as provided in Section 3.2(b), at the Effective
Time or to the extent not feasible at such date for some or all holders in some
or all jurisdictions (for Tax reasons or otherwise), promptly thereafter and in
any event no later than the completion of the Post-Closing Reorganization, each
option to purchase Euronext Shares (a "EURONEXT STOCK OPTION") and each
restricted share, restricted stock unit or deferred stocks unit measured in
Euronext Shares (each, a "EURONEXT STOCK-BASED AWARD") granted under the
employee and director stock option and stock-based award plans of Euronext (the
"EURONEXT STOCK PLANS"), whether vested or unvested, shall cease to represent a
Euronext Stock Option or Euronext Stock-Based Award, respectively, and shall be
converted into a stock option to acquire Holdco Common Stock (a "HOLDCO STOCK
OPTION") or a restricted share, restricted stock unit or deferred stock unit
measured in Holdco Common Stock (a "HOLDCO STOCK-BASED AWARD"), respectively, on
the same terms and conditions as were applicable under such Euronext Stock
Option and Euronext Stock-
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Based Award prior to the Post-Closing Reorganization (or such other arrangement
that the parties shall mutually agree prior to the filing of the Offer with the
AMF); PROVIDED that the number of shares of Holdco Common Stock subject to each
such Holdco Stock Option or Holdco Stock-Based Award shall be the number of
Euronext Shares subject to each such Euronext Stock Option or Euronext
Stock-Based Award multiplied by the Stock Election Amount (assuming no
pro-ration or adjustment as provided in Section 1.1(d)), rounded, if necessary,
to the nearest whole share of Holdco Common Stock, and such Holdco Stock Option
shall have an exercise price per share (rounded to the nearest one-hundredth of
a cent) equal to the per share exercise price specified in such Euronext Stock
Option divided by the Stock Election Amount (assuming no pro-ration or
adjustment as provided in Section 1.1(d)).
(b) SPECIFIC ARRANGEMENT FOR CERTAIN HOLDERS. If it is reasonably
foreseeable that the conversion of any of the Euronext Stock Options and/or
Euronext Stock-Based Awards referred to in Section 3.2(a) would cause holders of
Euronext Stock Options and/or Euronext Stock-Based Awards who are French
residents for Tax purposes (the "FRENCH HOLDERS") to incur additional Taxes or
social security charges under French law (the "FRENCH TAXES"), as compared to
the French Taxes that such French Holders would incur pursuant to the first
sentence of Article 200 A 6 of the Xxxxxx Xxxxxxx Tax Code with respect to
Euronext Stock Options if such French Holders had converted the Euronext Stock
Options after holding such Euronext Stock Options for four years from the date
of grant of the original Euronext Stock Option or as compared to the French
Taxes that such French Holders would incur pursuant to Article 200 A 6 BIS of
the Xxxxxx Xxxxxxx Tax Code with respect to Euronext Stock-Based Awards if such
French Holder had converted the Euronext Stock-Based Awards into Euronext Shares
after holding such Euronext Stock-Based Awards for any applicable vesting period
and after holding the Euronext Common Stock resulting from such vesting for two
years (the "FAVORABLE TAX AMOUNT" for such Euronext Stock Option or Euronext
Stock-Based Award, as applicable), Holdco shall offer to the French Holders of
the Euronext Stock-Options and Euronext Stock-Based Awards, whether vested or
unvested, the right to participate in certain equity arrangements entered into
between Holdco and the relevant French Holders (the "EQUITY ARRANGEMENTS"),
pursuant to which Holdco shall undertake vis-a-vis each such French Holder, and
each such French Holder shall undertake vis-a-vis Holdco, to exchange each
Euronext Share purchased, subscribed or received pursuant to the Euronext Stock
Options or Euronext Stock-Based Awards after the completion of the Offer for a
number of shares of Holdco Common Stock equal to the Stock Election Amount
(assuming no pro-ration or adjustment as provided in Section 1.1(d)); PROVIDED
that nothing in this Section 3.2(b) shall limit or prohibit Holdco from
undertaking the Post-Closing Reorganization in the time or manner that Holdco
shall determine, subject to the requirements of Sections 3.1(a) and 3.1(b). In
the event that Holdco shall undertake a Post-Closing Reorganization that (1)
shall result in the termination of the Equity Arrangements, or (2) shall prevent
Euronext from issuing Euronext Shares upon exercise of the Euronext Stock
Options or Euronext Stock-Based Awards, then the outstanding Euronext Stock
Options and Euronext Stock-Based Awards held by the French Holders shall be
converted into Holdco Stock Options and Holdco Stock-Based Awards as provided in
Section 3.2(a). In the event that the Post-Closing Reorganization (including,
for the avoidance of doubt, the conversion provided in
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Section 3.2(a) as the case may be) shall cause the French Holders to incur
French Taxes in an amount greater than the Favorable Tax Amount in respect of
such Euronext Stock Options or Euronext Stock-Based Awards, then Holdco shall
pay to each such French Holder (or pay to the applicable Tax authority if
required by applicable Law) an amount of cash (the "GROSS-UP PAYMENT") equal to
the difference between (i) the aggregate amount of French Taxes imposed on such
French Holder that arises as a result of the Post-Closing Reorganization, if
any, MINUS (ii) the aggregate Favorable Tax Amount that such French Holders
would have incurred with respect to such Euronext Stock Options and/or Euronext
Stock-Based Awards after holding such Euronext Stock Options and/or Euronext
Stock-Based Awards (or the resulting shares) for the period from the date of
grant necessary to qualify for taxation based on the Favorable Tax Amount. In
addition, Holdco shall pay to each such French Holder (or pay to the applicable
Tax authority if required by applicable Law) an amount of cash equal to the
aggregate French Taxes incurred by such French Holder as a result of the
Gross-Up Payment and the payments pursuant to this sentence. Notwithstanding
anything contained herein to the contrary, in no event shall Holdco be required
to make any Gross-Up Payment or any other payment pursuant to this Section
3.2(b) in respect of (A) Euronext Stock Options originally granted under
Euronext's SBF Option Plan or Euronext's 2002 Option Plan or any other Euronext
Stock Options that were granted on a date that is four or more years prior to
the date on which a conversion of such options occurs in accordance with Section
3.2(a) (including Holdco Stock Options upon any such conversion) or (B) a
Euronext Stock-Based Award granted on a date that is granted prior to 2005, if
any.
(c) TAX-FREE ROLLOVER. Subject to the provisions of Section 3.2(b),
NYSE Group, Holdco and Euronext shall cooperate and use reasonable best efforts
to cause, where possible, the conversion of all Euronext Stock Options and
Euronext Stock-Based Awards into Holdco Stock Options or Holdco Stock-Based
Awards (as applicable) as set forth in Section 3.2(a) not to be a taxable
transaction for the holders of these Euronext Stock Options or Euronext
Stock-Based Awards; PROVIDED that nothing in this Section 3.2(c) shall (A) limit
or prohibit Holdco from undertaking the Post-Closing Reorganization in the time
or manner that Holdco shall determine, subject to the requirements of Sections
3.1(a) and 3.1(b), or (B) subject to Section 3.2(b), require Holdco to
compensate, or prohibit Holdco from compensating, any holder of a Euronext Stock
Option or Euronext Stock-Based Award for any Taxes or social security charges
incurred or borne by such holder. Any adjustment to Euronext Stock Options or
Stock-Based Awards shall comply with the requirements of Section 409A of the
Code, to the extent applicable.
Section 3.3. COOPERATION OF EURONEXT. Euronext shall take, on or after
the date of this Agreement, all actions reasonably necessary or desirable to
accomplish the Post-Closing Reorganization (provided that the Post-Closing
Reorganization shall not be required to be effective prior to the consummation
of the Offer), including, without limitation: (i) the convening of the necessary
meetings of Euronext shareholders and the Euronext Boards, (ii) the
consideration of any and all necessary or desirable resolutions by the Euronext
Boards for the purpose of the Post-Closing Reorganization, and (iii) the
execution of any and all reasonably requested documents, agreements or deeds
that are
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necessary or desirable to effectuate any of the corporate reorganizations and
the filing or registration of any or all of such documents, agreements or deeds
with the appropriate authorities or agencies. The Board of Directors of Holdco
(or any committee thereof consisting of an equal number of U.S. Persons and
European Persons, each as defined in the form of Amended and Restated Bylaws of
Holdco attached hereto), taking into account the best interests of Holdco and
its Subsidiaries, taken together as a whole, may require, except to the extent
prohibited by applicable Law or contrary to the requirements of any European
Regulator, (i) the conversion of any Subsidiary of Euronext from an entity that
is classified as a corporation pursuant to Treasury Regulation Section
301.7701-2(b)(8) into an entity that is an "eligible entity" (within the meaning
of Treasury Regulation Section 301.7701-3(a)), and/or (ii) entity classification
elections pursuant to Treasury Regulation Section 301.7701-3 for any Subsidiary
of Euronext in such manner and with such effective dates as specified by Holdco.
Upon the request of Holdco, Euronext shall, and shall cause its Subsidiaries to,
except to the extent prohibited by applicable Law or contrary to the
requirements of any European Regulator, and subject to Sections 3.1(a) and
3.1(b), take any and all other reasonable actions that are required or desirable
to accomplish the Post-Closing Reorganization.
ARTICLE IV
CORPORATE NAME; EXECUTIVE OFFICES; GOVERNING DOCUMENTS
Section 4.1. CORPORATE NAME AND EXECUTIVE OFFICES.
(a) CORPORATE NAME. As of the Effective Time, the official name of
Holdco shall be "NYSE Euronext", or such other name as mutually agreed by NYSE
Group and Euronext.
(b) EXECUTIVE OFFICES. As of and after the Effective Time, the
headquarters and executive offices of Holdco shall be located at NYSE Group's
current headquarters, and the headquarters for the non-U.S. businesses of Holdco
shall be located at Euronext's current headquarters.
Section 4.2. CERTIFICATES OF INCORPORATION.
(a) CERTIFICATE OF INCORPORATION OF HOLDCO. Subject to any required
approval of the SEC and any European Regulator, prior to the Effective Time,
NYSE Group, as the sole stockholder of Holdco, shall (i) adopt by written
consent and (ii) cause the board of directors of Holdco to adopt an Amended and
Restated Certificate of Incorporation of Holdco substantially in the form
attached hereto as EXHIBIT A (the "NEW HOLDCO CHARTER") to be in effect as of
the Effective Time; PROVIDED that such form may be amended by NYSE Group and
Euronext in response to the comments of the staff of the SEC, any European
Regulator and other Governmental Entity with jurisdiction in connection with
obtaining any required approval for the transactions contemplated by this
Agreement or otherwise.
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"EUROPEAN REGULATOR" means any of the Dutch Minister of Finance, the
French Minister of the Economy, the French Committee of Credit
Establishments and Investments Undertakings (COMITE DES ETABLISSEMENTS DE
CREDIT ET DES ENTREPRISES D'INVESTISSEMENT - CECEI), the AMF, the
Netherlands Authority for the Financial Markets (AUTORITEIT FINANCIELE
MARKTEN), the CBFA, the Portuguese Securities Market Commission (COMISSAO
DO XXXXXXX DE VALORES MOBILIARIOS - CMVM), the U.K. Financial Services
Authority (FSA) and the College of Regulators, in each case only to the
extent that it has authority and jurisdiction in the particular context.
"COLLEGE OF REGULATORS" means the Committee of Chairmen of the AMF,
the Netherlands Authority for the Financial Markets (AUTORITEIT FINANCIELE
MARKTEN), the CBFA, the Portuguese Securities Market Commission (COMISSAO
DO XXXXXXX DE VALORES MOBILIARIOS - CMVM), and the U.K. Financial Services
Authority (FSA), pursuant to the Memoranda of Understanding, dated March 3,
2003 and March 22, 2001.
(b) CERTIFICATE OF INCORPORATION OF THE SURVIVING CORPORATION. Subject
to any required approval of the SEC, the parties shall take all requisite action
to cause the Certificate of Incorporation of the Surviving Corporation in effect
immediately following the Effective Time to be substantially in such form as
determined by NYSE Group.
(c) ORGANIZATIONAL DOCUMENTS OF SUBSIDIARIES OF HOLDCO. NYSE Group and
Euronext shall agree on the forms of the organizational documents that will be
in effect as of the Effective Time for those entities that will be Subsidiaries
of Holdco as of the Effective Time set forth on Section 4.2 of the Euronext
Disclosure Letter.
Section 4.3. BYLAWS.
(a) BYLAWS OF HOLDCO. Subject to any required approval of the SEC and
any European Regulator, prior to the Effective Time, NYSE Group, as the sole
stockholder of Holdco, shall adopt by written consent an Amended and Restated
Bylaws of Holdco substantially in such form attached hereto as EXHIBIT B (the
"NEW HOLDCO BYLAWS") to be in effect as of the Effective Time; PROVIDED that
such form may be amended by NYSE Group and Euronext in response to the comments
of the staff of the SEC, any European Regulator and other Governmental Entities
with jurisdiction in connection with obtaining any required approval for the
transactions contemplated by this Agreement or otherwise.
(b) BYLAWS OF THE SURVIVING CORPORATION. Subject to any required
approval of the SEC, the parties shall take all requisite action to cause the
Bylaws of the Surviving Corporation in effect immediately following the
Effective Time to be substantially in such form as determined by NYSE Group.
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ARTICLE V
BOARD AND MANAGEMENT COMMITTEE AT THE EFFECTIVE TIME
Section 5.1. BOARD OF DIRECTORS OF HOLDCO. At the Effective Time, the
Board of Directors of Holdco will consist of twenty-two members. Such Board of
Directors shall be comprised of: (i) the Chief Executive Officer of NYSE Group
as of immediately prior to the Effective Time (who shall be the Chief Executive
Officer of Holdco as of immediately after the Effective Time); (ii) the Chief
Executive Officer of Euronext as of immediately prior to the Effective Time (who
shall be the Deputy Chief Executive Officer of Holdco as of immediately after
the Effective Time); (iii) the Chairman of the Supervisory Board of Euronext as
of immediately prior to the Effective Time (who shall be the Chairman of the
Board of Directors of Holdco as of immediately after the Effective Time); (iv)
the Chairman of the Board of Directors of NYSE Group as of immediately prior to
the Effective Time (who shall be the Deputy Chairman of the Board of Directors
of Holdco as of immediately after the Effective Time); (v) nine individuals from
the Board of Directors of NYSE Group as of immediately prior to the Effective
Time (in addition to the Chief Executive Officer and Chairman of NYSE Group as
of immediately prior to the Effective Time); (vi) eight individuals from the
Supervisory Board of Euronext as of immediately prior to the Effective Time (in
addition to the Chief Executive Officer and Chairman of Euronext as of
immediately prior to the Effective Time); and (vii) Sylvain Hefes, who is a
European Person (as defined in the form of Amended and Restated Bylaws of Holdco
attached hereto) approved by both the Euronext Supervisory Board and the NYSE
Group Board of Directors; PROVIDED that in the case of clause (vi), Euronext may
substitute one or more of such individuals from the Supervisory Board with
persons who are European Persons (PROVIDED, FURTHER, that such newly designated
person is reasonably acceptable to NYSE Group). If NYSE Group shall have fewer
than nine members (excluding the Chief Executive Officer and Chairman of NYSE
Group) on its Board of Directors as of immediately prior to the Effective Time,
NYSE Group may, in its discretion, designate an individual to serve on the Board
of Directors of Holdco that shall not be a member of the Board of Directors of
NYSE Group; PROVIDED that such designee is reasonably acceptable to Euronext.
Each of the members of the Board of Directors of Holdco, other than the Chief
Executive Officer of Holdco and the Deputy Chief Executive Officer of Holdco,
must satisfy Holdco's director independence policy, as it may be amended from
time to time. Regularly scheduled meetings of the Board of Directors of Holdco
after the Effective Time will occur with substantially equal frequency within
the United States and Europe. At the first annual meeting of stockholders of
Holdco at which directors shall be elected, the initial members of the Board of
Directors of Holdco shall be nominated at such meeting to be members of the
Board of Directors of Holdco.
Section 5.2. NOMINATING AND GOVERNANCE COMMITTEE OF THE HOLDCO BOARD
OF DIRECTORS. As of the Effective Time, the Nominating and Governance Committee
of the Board of Directors of Holdco shall each be comprised of an equal number
of directors of NYSE Group as of immediately prior to the Effective Time and
directors of Euronext as of immediately prior to the Effective Time.
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Section 5.3. MANAGEMENT COMMITTEE OF HOLDCO AT THE EFFECTIVE TIME. As
of the Effective Time, Holdco shall be managed by a Management Committee
consisting of fourteen members. Such Management Committee shall be comprised of
seven designees of NYSE Group and seven designees of Euronext, and shall
include, among others, the Chief Executive Officer of NYSE Group as of
immediately prior to the Effective Time (who shall be the Chief Executive
Officer of Holdco as of immediately after the Effective Time) and the Chief
Executive Officer of Euronext as of immediately prior to the Effective Time (who
shall be the Deputy Chief Executive Officer of Holdco as of immediately after
the Effective Time).
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Section 6.1. REPRESENTATIONS AND WARRANTIES OF NYSE GROUP. Except as
set forth in the corresponding sections or subsections of the disclosure letter
dated as of the date hereof, delivered to Euronext by NYSE Group on or prior to
entering into this Agreement (the "NYSE GROUP DISCLOSURE LETTER"), in such other
section or subsection of the NYSE Group Disclosure Letter where the
applicability of such exception is reasonably apparent, or in any report filed
with or furnished to SEC and publicly available on the SEC's Electronic Data
Gathering, Analysis and Retrieval System (XXXXX) prior to the date hereof, NYSE
Group hereby represents and warrants to Euronext as set forth in this Section
6.1. The mere inclusion of any item in the NYSE Group Disclosure Letter as an
exception to a representation or warranty of NYSE Group in this Agreement shall
not be deemed to be an admission that such item is a material exception, fact,
event or circumstance, or that such item, individually or in the aggregate, has
had or is reasonably expected to have, a Material Adverse Effect on NYSE Group
or trigger any other materiality qualification.
(a) ORGANIZATION, GOOD STANDING AND QUALIFICATION. NYSE Group is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware. Each of NYSE Group's Subsidiaries is an entity duly
organized, validly existing and in good standing under the laws of its
respective jurisdiction of organization. Each of NYSE Group and its Subsidiaries
has all requisite corporate, company or similar power and authority to own and
operate its properties and assets and to carry on its business as presently
conducted and is qualified to do business and is in good standing as a foreign
corporation in each jurisdiction where the ownership or operation of its assets
or properties or conduct of its business requires such qualification, except
where the failure to be so organized, existing and in good standing or to have
such power or authority when taken together with all other such failures,
individually or in the aggregate, has not had and is not reasonably expected to
have a Material Adverse Effect on NYSE Group. NYSE Group has made available to
Euronext a complete and correct copy of the NYSE Group Organizational Documents
and NYSE Group Subsidiary Organizational Documents (other than NYSE Group
Subsidiary Organizational Documents for Subsidiaries of NYSE Group that have no
operations), in effect as of the date hereof.
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NYSE Group Organizational Documents and NYSE Group Subsidiary Organizational
Documents so delivered are in full force and effect. Section 6.1(a) of the NYSE
Group Disclosure Letter contains a correct and complete list of all Subsidiaries
of NYSE Group, and each jurisdiction where NYSE Group and each of its
Subsidiaries is organized and qualified to do business. Holdco is a wholly owned
subsidiary of NYSE Group and is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware. Holdco has
conducted no business other than activities incidental to its organization and
the consummation of the transactions contemplated by this Agreement.
"NYSE GROUP ORGANIZATIONAL DOCUMENTS" means the Amended and Restated
Certificate of Incorporation and the Amended and Restated Bylaws of NYSE
Group.
"NYSE GROUP SUBSIDIARY ORGANIZATIONAL DOCUMENTS" means the
certificates of incorporation, limited liability company agreement, bylaws
and similar organizational documents of all Subsidiaries of NYSE Group.
"MATERIAL ADVERSE EFFECT" on NYSE Group or Euronext, as applicable,
means a material adverse effect on the business, results of operations or
financial condition of NYSE Group or Euronext (as applicable) and its
Subsidiaries (including, in the case of Euronext, the Joint Ventures),
taken as a whole; PROVIDED, HOWEVER, that the following shall not be
considered in determining whether a Material Adverse Effect has occurred:
(A) any change or development in economic, business or securities markets
conditions generally (including any such change or development resulting
from acts of war or terrorism) to the extent that such change or
development does not affect NYSE Group or Euronext (as applicable) and its
Subsidiaries (including, in the case of Euronext, the Joint Ventures),
taken as a whole, in a materially disproportionate manner relative to other
securities exchanges or trading markets; (B) any change or development to
the extent resulting from the execution or announcement of this Agreement
or the transactions contemplated hereby, or (C) any change or development
to the extent resulting from any action or omission by NYSE Group or
Euronext (as applicable) or any of its Subsidiaries (including, in the case
of Euronext, the Joint Ventures) that is required by this Agreement.
"SUBSIDIARY" means, with respect to any Person, any entity, whether
incorporated or unincorporated, of which at least a majority of the
securities or ownership interests having by their terms voting power to
elect a majority of the board of directors or other persons performing
similar functions is directly or indirectly owned or controlled by such
party or by one or more of its respective Subsidiaries and, with respect to
Euronext for purposes of Article VII, shall include the Joint Ventures;
PROVIDED that any obligation of Euronext to cause the Joint Ventures to
take an action or not to take an action shall be limited to the extent that
Euronext has control over such action.
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"JOINT VENTURES" means (1) Atos Euronext Market Solutions Holding SAS
and its Subsidiaries (including, but not limited to, AtosEuronext SA, Atos
Euronext Markets Solutions Limited), and (2) MTS S.p.A., Marches des titres
France (MTS France), MTS Next Ltd and their respective Subsidiaries.
(b) CAPITALIZATION. The authorized capital stock of NYSE Group
consists of 600,000,000 shares, of which 156,068,055 shares of NYSE Group Common
Stock are outstanding as of May 31, 2006 (not including 1,645,415 shares of NYSE
Group Common Stock held in treasury, all of which are held by NYSE Arca, Inc.,
an indirect wholly owned Subsidiary of NYSE Group), and no shares of Preferred
Stock, par value $0.01 per share (the "NYSE GROUP PREFERRED STOCK") are
outstanding as of the date hereof. All of the outstanding shares of NYSE Group
Common Stock have been duly authorized and are validly issued, fully paid and
nonassessable. NYSE Group has no shares of NYSE Group Common Stock or NYSE Group
Preferred Stock reserved for issuance, except that, as of May 31, 2006, there
were 1,352,715 shares of NYSE Group Common Stock underlying restricted stock
units, 1,862,427 shares of NYSE Group Common Stock underlying options and
8,500,000 shares of NYSE Group Common Stock reserved for issuance for NYSE Group
employees and directors under NYSE Group's 2006 Stock Incentive Plan. Each of
the outstanding shares of capital stock or other equity interests of each of
NYSE Group's Subsidiaries is duly authorized, validly issued, fully paid and
nonassessable and owned by NYSE Group or by a direct or indirect wholly owned
subsidiary of NYSE Group, free and clear of any lien, pledge, security interest,
claim or other encumbrance. Except as set forth above, there are no preemptive
or other outstanding rights, options, warrants, conversion rights, stock
appreciation rights, redemption rights, repurchase rights, agreements,
arrangements, calls, commitments or rights of any kind that obligate NYSE Group
or any of its Subsidiaries to issue or sell any shares of capital stock or other
securities of NYSE Group or any of its Subsidiaries or any securities or
obligations convertible or exchangeable into or exercisable for, or giving any
Person a right to subscribe for or acquire, any NYSE Group Shares or other
securities of NYSE Group or any of its Subsidiaries, and no securities or
obligations evidencing such rights are authorized, issued or outstanding. NYSE
Group does not have outstanding any bonds, debentures, notes or other
obligations the holders of which have the right to vote (or convertible into or
exercisable for securities having the right to vote) with the stockholders of
NYSE Group on any matter.
(c) CORPORATE AUTHORITY.
(i) NYSE Group has all requisite corporate power and authority and has
taken all corporate action necessary in order to authorize, execute, deliver and
perform its obligations under this Agreement, and to consummate the Merger and
the other transactions contemplated hereby (including all actions by the Board
of Directors of NYSE Group set forth in clause (ii)(A) below), subject only to
(A) the approval and adoption of this Agreement and the Merger by a vote of the
holders of a majority of the outstanding shares of NYSE Group Common Stock
entitled to vote thereon, (B) the approval of certain aspects of the certificate
of incorporation of Holdco that will be in effect after the Merger by a vote of
the holders of a majority of the outstanding shares of NYSE Group Common
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Stock present at the NYSE Group Stockholders Meeting ((A) and (B) collectively,
the "NYSE GROUP REQUISITE VOTE") and (C) to the extent required, approval of the
SEC. This Agreement is a valid and binding agreement of NYSE Group enforceable
against NYSE Group in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles (the "BANKRUPTCY AND EQUITY EXCEPTION"). The
representations and warranties set forth in this Section 6.1(c)(i) shall apply
MUTATIS MUTANDIS with respect to both the Original Combination Agreement and
this Agreement, and, with respect to the Original Combination Agreement, shall
be made as of the Original Execution Date and, with respect to this Agreement,
shall be made as of the Execution Date; PROVIDED, HOWEVER, that none of the
representations and warranties set forth in this Section 6.1(c)(i) "speaks as of
an earlier date" for purposes of Section III(a) of Annex II.
(ii) The Board of Directors of NYSE Group: (A) has approved, adopted
and declared advisable this Agreement, the Offer and the Merger and the other
transactions contemplated hereby; (B) has recommended that the NYSE Group
stockholders approve and adopt this Agreement and the transactions contemplated
by this Agreement; and (C) has received the opinion of its financial advisor,
Citigroup Global Markets Inc. to the effect that the Merger Consideration to be
received by the holders of the NYSE Group Common Stock in the Merger is fair
from a financial point of view, as of the date of such opinion, to such holders,
a copy of which opinion has been delivered to Euronext. It is agreed and
understood that such opinion is for the benefit of NYSE Group's Board of
Directors and may not be relied on by Euronext. The representations and
warranties set forth in clause (A) of this Section 6.1(c)(ii) shall apply
MUTATIS MUTANDIS with respect to both the Original Combination Agreement and
this Agreement, and, with respect to the Original Combination Agreement, shall
be made as of the Original Execution Date and, with respect to this Agreement,
shall be made as of the Execution Date; PROVIDED, HOWEVER, that none of the
representations and warranties set forth in clause (A) of this Section
6.1(c)(ii) "speaks as of an earlier date" for purposes of Section III(a) of
Annex II.
(d) NO CONFLICTS.
(i) (A) Neither the execution and delivery by NYSE Group of this
Agreement, the compliance by it with all of the provisions of and the
performance by it of its obligations under this Agreement, nor the consummation
of the Offer, the Merger and the other transactions herein contemplated will
conflict with, or result in a breach or violation of, or result in any
acceleration of any rights or obligations or the payment of any penalty under or
the creation of a lien, pledge, security interest or other encumbrance on assets
(with or without the giving of notice or the lapse of time) pursuant to, or
permit any other party any improvement in rights with respect to or permit it to
exercise, or otherwise constitute a default under, any provision of any Contract
in effect as of the date hereof, or result in any change in the rights or
obligations of any party under any Contract in effect as of the date hereof, to
which NYSE Group or any of its Subsidiaries is a party or by which NYSE Group or
any of its Subsidiaries or any of their respective assets is bound, (B) nor,
subject to any required approval of the New Holdco Charter and New Holdco Bylaws
by
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the SEC or any European Regulator, will such execution and delivery, compliance,
performance or consummation result in any breach or violation of, or a default
under, the provisions of the NYSE Group Organizational Documents or the NYSE
Group Subsidiary Organizational Documents, or any Law applicable to it, except
for such conflicts, breaches, violations, defaults, payments, accelerations,
creations or changes that, individually or in the aggregate, have not had and
are not reasonably expected to have, a Material Adverse Effect on NYSE Group.
(ii) Neither NYSE Group nor any of its Subsidiaries is a party to or
bound by any non-competition Contracts or other Contract that purports to limit
in any material respect either the type of business in which NYSE Group or its
Subsidiaries (or, after giving effect to the Merger, Holdco or its Subsidiaries)
may engage or the manner or locations in which any of them may so engage in any
business.
"CONTRACT" means, with respect to any Person, any agreement,
indenture, loan agreement, undertaking, note or other debt instrument,
contract, lease, mortgage, deed of trust, permit, license, understanding,
arrangement, commitment or other obligation to which such Person or any of
its subsidiaries is a party or by which any of them may be bound or to
which any of their properties may be subject.
(e) GOVERNMENTAL APPROVALS AND CONSENTS. Other than (i) the approvals
and consents to be obtained from the SEC or any European Regulator, (ii) the
filings and/or notices under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvement Act of
1976, as amended (the "HSR ACT"), if applicable, the U.S. Securities Exchange
Act of 1934, as amended (the "EXCHANGE ACT"), and the Securities Act, and (iii)
the governmental approvals set forth on Section 6.1(e) of the NYSE Group
Disclosure Letter (the "GOVERNMENTAL APPROVALS"), state securities, takeover and
"blue sky" laws, no authorizations, consents, approvals, orders, permits,
notices, reports, filings, registrations, qualifications and exemptions of, with
or from, or other actions are required to be made by NYSE Group or any of its
Subsidiaries with, or obtained by NYSE Group or any of its Subsidiaries from,
any governmental or regulatory authority, agency, commission, body or other
governmental or regulatory entity, U.S. or non-U.S., including the SEC and the
European Regulators ("GOVERNMENTAL ENTITY"), in connection with the execution
and delivery by NYSE Group of this Agreement, the performance by NYSE Group of
its obligations hereunder, and the consummation of the transactions contemplated
hereby.
(f) NYSE GROUP REPORTS; FINANCIAL STATEMENTS. Each of NYSE Group and
its Subsidiaries has made available each of its annual reports and proxy
statements delivered to its stockholders since November 3, 2005 (collectively,
the "NYSE GROUP REPORTS"). Neither NYSE Group nor any of its Subsidiaries has
received, or knows of, any comments or inquiries from the SEC relating to any
NYSE Group Report that, individually or in the aggregate, have had or are
reasonably expected to have a Material Adverse Effect on NYSE Group. As of their
respective dates (or if amended, as of the date of such amendment), the NYSE
Group Reports did not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
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statements made therein, in light of the circumstances in which they were made,
not misleading. NYSE Group has delivered to the Euronext true and complete
copies of the audited consolidated financial statements of NYSE Group, New York
Stock Exchange, Inc. and Archipelago Holdings Inc. for the fiscal year ended
December 31, 2005 (the "NYSE GROUP FINANCIAL STATEMENTS"). Each of the
consolidated balance sheets included in the NYSE Group Financial Statements
(including the related notes and schedules) fairly presents the consolidated
financial position of NYSE Group, New York Stock Exchange, Inc. and Archipelago
Holdings, Inc., respectively, and its Subsidiaries as of its date and each of
the consolidated statements of income, retained earnings, and cash flows and of
changes in financial position included in the NYSE Group Financial Statements
(including any related notes and schedules) fairly presents the results of
operations, retained earnings, stockholders' equity, cash flows and changes in
financial position, as the case may be, of NYSE Group, New York Stock Exchange,
Inc. and Archipelago Holdings, Inc. and its Subsidiaries for the periods set
forth therein, in each case in conformity with U.S. generally accepted
accounting principles ("GAAP") consistently applied during the periods involved,
except as may be noted therein.
(g) ABSENCE OF CERTAIN CHANGES. Except as disclosed in the NYSE Group
Financial Statements, since December 31, 2005, NYSE Group and its Subsidiaries
have conducted their respective businesses only in, and have not engaged in any
material transaction other than according to, the ordinary and usual course of
such businesses and there has not been (i) any change or development that,
individually or in the aggregate, has had or is reasonably expected to have, a
Material Adverse Effect on NYSE Group; (ii) any material damage, destruction or
other casualty loss with respect to any material asset or property owned, leased
or otherwise used by NYSE Group or any of its Subsidiaries, whether or not
covered by insurance; or (iii) any change by NYSE Group in financial accounting
principles, practices or methods that is not required by GAAP. Since December
31, 2005, except as provided for herein or as disclosed in the NYSE Group
Financial Statements, there has not been any increase in the compensation
payable or that could become payable by NYSE Group or any of its Subsidiaries to
officers or key employees or any amendment of or other modification to any of
the NYSE Group Benefit Plans other than increases or amendments in the ordinary
and usual course consistent with past practice.
(h) COMPLIANCE. Neither NYSE Group nor any of its Subsidiaries is in
conflict with, or in default or violation of, (i) any U.S. federal, state, local
or non-U.S. law, statute, ordinance, rule, regulation, judgment, order,
injunction, decree, arbitration award, agency requirement, writ, franchise,
variance, exemption, approval, license or permit (each, a "LAW" and collectively
"LAWS") of any Governmental Entity or (ii) any Contract to which NYSE Group or
any of its Subsidiaries is a party or by which NYSE Group or any of its
Subsidiaries or its or any of their respective properties is bound or affected,
except in each of cases (i) and (ii), for any such conflicts, defaults or
violations that, individually or in the aggregate, have not had and are not
reasonably expected to have a Material Adverse Effect on NYSE Group. NYSE Group
and its Subsidiaries are in compliance with all undertakings of NYSE Group and
its Subsidiaries in connection with any investigation or examination by the SEC
or any other Governmental Entity, other than
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such failures to be in compliance that, individually or in the aggregate, have
not had and are not reasonably expected to have a Material Adverse Effect on
NYSE Group. Except as set forth in the NYSE Group Financial Statements, no
investigation or review by any Governmental Entity with respect to NYSE Group or
any of its Subsidiaries is pending or, to the knowledge of NYSE Group,
threatened, nor has any Governmental Entity indicated an intention to conduct
the same, except, in each case, for those the outcome of which, individually or
in the aggregate, have not had and are not reasonably expected to have a
Material Adverse Effect on NYSE Group. Except as set forth in the NYSE Group
Financial Statements or as, individually or in the aggregate, is not reasonably
expected to have a Material Adverse Effect on NYSE Group, (x) no material change
is required in NYSE Group's or any of its Subsidiaries' processes, properties or
procedures to comply with any Laws in effect on the date hereof or enacted as of
the date hereof and scheduled to be effective after the date hereof, and (y)
NYSE Group has not received any written notice or written communication of any
noncompliance with any Law. Each of NYSE Group and its Subsidiaries has all
permits, licenses, franchises, variances, exemptions, orders and other
authorizations, consents and approvals (together, "PERMITS") of all Governmental
Entities necessary to conduct its business as presently conducted, except where
the failure to have such Permits, individually or in the aggregate, has not had
and is not reasonably expected to have a Material Adverse Effect on NYSE Group.
(i) LITIGATION AND LIABILITIES. Except as disclosed in the NYSE Group
Financial Statements, there are no (i) civil, criminal or administrative
actions, suits, claims, hearings, investigations or proceedings pending or, to
the knowledge of NYSE Group, threatened against NYSE Group, any of its
Subsidiaries or any of their respective directors or officers or (ii)
obligations or liabilities, whether or not accrued, contingent or otherwise and
whether or not required to be disclosed, including those relating to, or any
other facts or circumstances of which, to the knowledge of NYSE Group, could
result in any claims against, or obligations or liabilities of, NYSE Group or
any of its affiliates, except, in both cases, for those that, individually or in
the aggregate, have not had and are not reasonably expected to have a Material
Adverse Effect on NYSE Group.
(j) EMPLOYEE BENEFITS.
(i) All material benefit and compensation plans, contracts, policies
or arrangements covering current or former employees of NYSE Group and its
Subsidiaries and current or former directors of NYSE Group and its
Subsidiaries, including, but not limited to, deferred compensation, equity
option, equity purchase, equity appreciation rights, equity based incentive
and bonus plans (the "NYSE GROUP BENEFIT PLANS") are listed in Section
6.1(j) of the NYSE Group Disclosure Letter. True and complete copies of all
material NYSE Group Benefit Plans listed in Section 6.1(j) of the NYSE
Group Disclosure Letter, including, but not limited to, any trust
instruments, insurance contracts and all amendments thereto, have been made
available to Euronext.
(ii) All NYSE Group Benefit Plans are operated and established in
substantial compliance with their terms and all applicable Laws. All NYSE
Group
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Benefit Plans intended to qualify for special tax treatment meet all
requirements for such treatment, and all NYSE Group Benefit Plans required
to be funded and/or book-reserved are fully funded and/or book reserved, as
appropriate, based upon reasonable actuarial assumptions.
(iii) As of the date hereof, there is no pending or, to the knowledge
of NYSE Group, threatened, litigation relating to the NYSE Group Benefit
Plans that, individually or in the aggregate, has had, or is reasonably
expected to have, a Material Adverse Effect on NYSE Group. Other than as
required by applicable Law, neither NYSE Group nor any of its Subsidiaries
has any material obligations for retiree health and life benefits to any
current or former employees of NYSE Group or any of its Subsidiaries. Other
than as prohibited by applicable Law, NYSE Group or its Subsidiaries may
amend or terminate any such plan at any time without incurring any
liability thereunder other than in respect of claims incurred prior to such
amendment or termination.
(iv) There has been no amendment to, announcement by NYSE Group or any
of its Subsidiaries relating to, or change in employee participation or
coverage under, any NYSE Group Benefit Plan which would increase the
expense of maintaining such plan above the level of the expense incurred
therefor for the most recent fiscal year. Neither the execution of this
Agreement nor the consummation of the transactions contemplated hereby will
(A) entitle any NYSE Group Employees to additional compensation or to
severance pay or any increase in severance pay upon any termination of
employment after the date hereof, (B) accelerate the time of payment or
vesting or result in any payment or funding (through a grantor trust or
otherwise) of compensation or benefits under, increase the amount payable
or result in any other material obligation pursuant to, any of the NYSE
Group Benefit Plans or accelerate options or restricted stock units, (C)
accelerate the time of payment or vesting of the NYSE Group Stock Options
or the NYSE Group Stock-Based Awards, or (D) limit or restrict the right of
NYSE Group or, after the consummation of the Merger or any other
transactions contemplated hereby, Holdco to merge, amend or terminate any
of the NYSE Group Benefit Plans.
(k) TAX MATTERS. Neither NYSE Group nor any of its Subsidiaries has
taken or agreed to take any action, nor, to the knowledge of NYSE Group, there
exists any fact or circumstance, that would prevent or impede, or would be
reasonably likely to prevent or impede, (i) the Merger from qualifying as a
"reorganization" within the meaning of Section 368(a) of the Code or (ii) the
receipt by NYSE Group of the IRS private letter ruling or the tax opinion
contemplated by paragraph II.(d) of ANNEX II.
(l) TAXES.
(i) Except as would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect on NYSE Group: (A) all Tax
Returns that are required to be filed by NYSE Group or any of its
Subsidiaries have been
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timely filed (taking into account any extension of time within which to
file), and all such Tax Returns are true and complete; (B) NYSE Group and
its Subsidiaries have paid all Taxes required to be paid by any of them,
including any Taxes required to be withheld from amounts owing to any
employee, creditor or third party, except with respect to matters for which
adequate reserves have been established in accordance with GAAP; (C) there
is no audit, examination, deficiency, refund litigation, proposed
adjustment or matter in controversy with respect to any Taxes or Tax Return
of NYSE Group or any of its Subsidiaries; (D) the Tax Returns of NYSE Group
and each of its Subsidiaries have been examined by the applicable Tax
Authority (or the applicable statutes of limitations for the assessment of
income Taxes for such periods have expired) for all periods through and
including December 31, 2000, and no deficiencies were asserted as a result
of such examinations which have not been resolved and fully paid or accrued
as a liability on the most recent financial statements contained in the
NYSE Group Reports; (E) neither NYSE Group nor any of its Subsidiaries have
waived any statute of limitations with respect to Taxes or agreed to any
extension of time with respect to a Tax assessment or deficiency; (F) all
Taxes due and payable by NYSE Group or any of its Subsidiaries have been
adequately provided for, in accordance with GAAP, in the financial
statements of NYSE Group and its Subsidiaries for all periods ending
through the date hereof; (G) neither NYSE Group nor any of its Subsidiaries
has constituted a "distributing corporation" or a "controlled corporation"
(within the meaning of Section 355(a)(1)(A) of the Code) in a distribution
of stock intended to qualify for tax-free treatment under Section 355 of
the Code (or any similar provision of state, local or non-U.S. law) in the
three years prior to the date of this Agreement; and (H) none of NYSE Group
or any of its Subsidiaries has any liability for Taxes of any Person (other
than NYSE Group or any of its Subsidiaries) under Treasury Regulation
ss.1.1502-6 (or any similar provision of state, local or non-U.S. law), as
transferee or successor, by contract or otherwise; and (I) There are no
Liens for Taxes upon any property or assets of NYSE Group or any of its
Subsidiaries, except for Liens for Taxes not yet due and payable or for
which adequate reserves have been provided in accordance with GAAP.
(ii) Except for the IRS private letter ruling issued to the New York
Stock Exchange on December 1, 2005 (the "IRS RULING"), no private letter
rulings, technical advice memoranda or similar agreements or rulings have
been entered into or issued by any Taxing Authority with respect to NYSE
Group or any of its Subsidiaries for any taxable year for which the statute
of limitations has not expired.
(iii) As used in this Agreement, (A) the term "TAX" (including the
plural form "TAXES" and, with correlative meaning, the terms "TAXABLE" and
"TAXATION") includes all U.S. federal, state, local and non-U.S. income,
profits, windfall profits, franchise, gross receipts, environmental,
customs duty, capital stock, severances, stamp, payroll, sales, employment,
unemployment, disability, use, property, withholding, excise, production,
value added, occupancy and other taxes, duties or
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assessments of any nature whatsoever, together with all interest,
penalties and additions imposed with respect to such amounts and any
interest in respect of such penalties and additions, (B) the term "TAX
RETURN" includes all returns and reports (including elections,
declarations, disclosures, schedules, estimates and information returns)
required to be filed with a Tax Authority relating to Taxes, and (C) the
term "TAX AUTHORITY" includes any Governmental Entity responsible for the
assessment, collection or enforcement of Laws relating to Taxes (including
the IRS and any similar state, local or non-U.S. revenue agency).
(m) LABOR MATTERS. Neither NYSE Group nor any of its Subsidiaries is a
party to or otherwise bound by any material collective bargaining agreement,
Contract or other agreement or understanding with a labor union or labor
organization, nor is NYSE Group or any of its Subsidiaries the subject of any
material proceeding asserting that NYSE Group or any of its Subsidiaries has
committed an unfair labor practice or is seeking to compel it to bargain with
any labor union or labor organization nor is there pending or, to the knowledge
of NYSE Group, threatened, nor has there been for the past five years, any
material labor strike, dispute, walk-out, work stoppage, slow-down or lockout
("STRIKES") involving NYSE Group or any of its Subsidiaries, except for any
general Strikes that are not directed exclusively at NYSE Group or any of its
Subsidiaries.
(n) INSURANCE. All insurance policies maintained by NYSE Group and its
Subsidiaries provide coverage for those risks reasonably foreseeable with
respect to the business of NYSE Group and its Subsidiaries, and their respective
properties and assets as is customary for companies conducting the business
conducted by NYSE Group and its Subsidiaries during such time period, are in
character and amount at least equivalent to that carried by Persons engaged in
similar businesses and subject to the same or similar perils or hazards, and are
sufficient for compliance with all Laws currently applicable to NYSE Group and
its Subsidiaries. None of NYSE Group or any of its Subsidiaries has received
since January 1, 2006 any notice of cancellation or termination with respect to
any insurance policy of NYSE Group or its Subsidiaries. The insurance policies
of NYSE Group and its Subsidiaries are valid and enforceable policies in all
respects. No claims have been made under NYSE Group's directors' and officers'
liability insurance policies since December 31, 2002, and, as of the date of
this Agreement, no such claims are pending.
(o) INTELLECTUAL PROPERTY.
(i) For the purposes of this Agreement, "INTELLECTUAL PROPERTY" means
all inventions, discoveries, patents, patent applications, registered and
unregistered trademarks and service marks and all goodwill associated
therewith and symbolized thereby, trademark applications and service xxxx
applications, Internet domain names, registered and unregistered copyrights
(including without limitation databases and other compilations of
information), confidential information, trade secrets and know-how,
including processes, schematics, business methods, formulae, drawings,
prototypes, models, designs, customer lists and supplier lists,
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computer software programs, and all other intellectual property and
proprietary rights.
(ii) Except as has not had or is not reasonably expected to have a
Material Adverse Effect on NYSE Group, (A) NYSE Group and/or at least one
of its Subsidiaries exclusively owns, is licensed to use or otherwise
possesses sufficient and legally enforceable rights to use all Intellectual
Property which is owned by or necessary to the operation of the business of
NYSE Group as currently conducted (the "NYSE GROUP INTELLECTUAL PROPERTY")
and (B) the consummation of the transactions contemplated by this Agreement
will not alter or impair such rights. Except as has not had or is not
reasonably expected to have a Material Adverse Effect on NYSE Group: (A)
the NYSE Group Intellectual Property owned by NYSE Group is valid,
subsisting and enforceable, (B) NYSE Group's and/or its Subsidiaries'
ownership of and right to use the NYSE Group Intellectual Property is free
and clear of any lien, pledge, security interest or other encumbrance and
(C) no other Person has the right to use any of the owned NYSE Group
Intellectual Property except pursuant to non-exclusive license grants made
in writing by NYSE Group. All material Contracts under which NYSE Group or
any of its Subsidiaries licenses or otherwise permits another Person, or is
licensed or otherwise permitted by another Person, to use any NYSE Group
Intellectual Property (the "NYSE GROUP INTELLECTUAL PROPERTY CONTRACTS")
are legal, valid, binding and enforceable against the other party, and are
in full force and effect, subject to Bankruptcy and Equity Exceptions.
Except as has not had or is not reasonably expected to have a Material
Adverse Effect on NYSE Group, no claim has been made that NYSE Group or any
of its Subsidiaries, or to the knowledge of NYSE Group, another person, has
breached any NYSE Group Intellectual Property Contract.
(iii) There are no pending or, to the knowledge of NYSE Group,
threatened claims by any Person alleging infringement by NYSE Group or its
Subsidiaries for their use of any Intellectual Property that are reasonably
expected to have a Material Adverse Effect on NYSE Group. Except as has not
had or is not reasonably expected to have a Material Adverse Effect on NYSE
Group, to the knowledge of NYSE Group, the conduct of the business of NYSE
Group as currently conducted does not infringe upon any Intellectual
Property rights or any other proprietary right of any Person. To the
knowledge of NYSE Group, there is no unauthorized use, infringement or
misappropriation and other violation of NYSE Group Intellectual Property by
any Person, including any Employee of NYSE Group or any of its
Subsidiaries, except as would not reasonably be likely to have a Material
Adverse Effect on NYSE Group. NYSE Group and its Subsidiaries have taken
commercially reasonable steps to maintain the confidentiality of the trade
secrets and other non-public information owned by NYSE Group or its
Subsidiaries, or received from third Persons which NYSE Group or its
Subsidiaries is obligated to treat as confidential, except for such steps
the failure of which to have taken has not, individually or in the
aggregate, had or reasonably be expected to have a Material Adverse Effect
on NYSE Group.
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(iv) To the knowledge of NYSE Group and except as has not had or is
not reasonably expected to have a Material Adverse Effect on NYSE Group,
the IT Assets of NYSE Group operate and perform in all material respects in
accordance with their documentation and functional specifications, to the
extent available, or as otherwise required by NYSE Group and its
Subsidiaries in connection with the business of NYSE Group as currently
conducted. Each of NYSE Group and its Subsidiaries has implemented
reasonable backup and disaster recovery measures consistent with industry
standards.
(v) "IT ASSETS" means, with respect to Euronext or NYSE Group,
computers, computer software, firmware, middleware, servers, workstations,
routers, hubs, switches, data communications lines, and all other
information technology equipment and elements, and all associated
documentation, used in the business of Euronext or NYSE Group, as
applicable, as currently conducted.
(p) BROKERS AND FINDERS. None of NYSE Group, its Subsidiaries nor any
of their respective officers, directors or employees has employed any broker or
finder or incurred any liability for any brokerage fees, commissions or finders,
fees in connection with the Merger or the other transactions contemplated by
this Agreement, except that NYSE Group has employed Citigroup Global Markets
Inc. as its financial advisor, the arrangements with which have been disclosed
in writing to Euronext prior to the date hereof.
Section 6.2. REPRESENTATIONS AND WARRANTIES OF EURONEXT. Except as set
forth in the corresponding sections or subsections of the disclosure letter
dated as of the date hereof, delivered to NYSE Group by Euronext on or prior to
entering into this Agreement (the "EURONEXT DISCLOSURE LETTER"), or in such
other section or subsection of the Euronext Disclosure Letter where the
applicability of such exception is reasonably apparent or in the Euronext
Reports filed with a European Regulator or with the Commercial Register of the
Chamber of Commerce in Amsterdam, as applicable, and publicly available on the
website of Euronext or the AMF prior to the date hereof, Euronext hereby
represents and warrants to NYSE Group as set forth in this Section 6.2. The mere
inclusion of any item in the Euronext Disclosure Letter as an exception to a
representation or warranty of Euronext in this Agreement shall not be deemed to
be an admission that such item is a material exception, fact, event or
circumstance, or that such item, individually or in the aggregate, has had or is
reasonably expected to have, a Material Adverse Effect on Euronext or trigger
any other materiality qualification.
(a) ORGANIZATION, GOOD STANDING AND QUALIFICATION. Euronext is a
company duly organized and validly existing under the laws of The Netherlands.
Each of Euronext's Subsidiaries and each Joint Venture is an entity duly
organized and validly existing under the laws of its respective jurisdiction of
organization. Each of Euronext, its Subsidiaries and each Joint Venture has all
requisite corporate, company or similar power and authority to own and operate
its properties and assets and to carry on its business as presently conducted
and is qualified to do business and is in good standing as a foreign corporation
in each jurisdiction where the ownership or operation of its assets or
properties
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or conduct of its business requires such qualification, except where the failure
to be so organized, existing and in good standing or to have such power or
authority when taken together with all other such failures, individually or in
the aggregate, has not had and is not reasonably expected to have a Material
Adverse Effect on Euronext. Euronext has made available to NYSE Group a complete
and correct copy of the Euronext Organizational Documents and Euronext
Subsidiary Organizational Documents (other than Euronext Subsidiary
Organizational Documents for Subsidiaries of Euronext that have no operations),
in effect as of the date hereof. The Euronext Organizational Documents and the
Euronext Subsidiary Organizational Documents so delivered are in full force and
effect. Section 6.2(a) of the Euronext Disclosure Letter contains a correct and
complete list of all Subsidiaries of Euronext, and each jurisdiction where
Euronext and each of its Subsidiaries (other than Subsidiaries of Euronext that
have no operations) is organized and qualified to do business.
"EURONEXT ORGANIZATIONAL DOCUMENTS" means the Articles of Association
of Euronext.
"EURONEXT SUBSIDIARY ORGANIZATIONAL DOCUMENTS" means the articles of
association, certificate of incorporation, bylaws and similar
organizational documents of all Subsidiaries of Euronext and each Joint
Venture.
(b) CAPITALIZATION. The authorized capital stock of Euronext consists
of 200,000,000 Euronext Shares, of which 112,557,259 Euronext Shares are
outstanding as of May 22, 2006 (which figure includes the 400,000 Euronext
Shares to be awarded under the proposals of the annual general meeting of
Euronext held on May 23, 2006 and includes 1,204,609 Euronext Shares held by
Euronext or its Subsidiaries or by Stichting SBF Option Plan). All of the
outstanding Euronext Shares have been duly authorized and are validly issued,
fully paid and nonassessable. Euronext has no Euronext Shares reserved for
issuance, except that, as of May 22, 2006, there were not more than 2,500,000
shares of Euronext Shares reserved for issuance in connection with outstanding
Euronext Stock Options. Except as set forth on Section 6.2(b) of the Euronext
Disclosure Letter, each of the outstanding shares of capital stock or other
equity interests of each of Euronext's Subsidiaries and each Joint Venture is
duly authorized, validly issued, fully paid and nonassessable and owned by
Euronext or by a direct or indirect wholly owned Subsidiary of Euronext, free
and clear of any lien, pledge, security interest, claim or other encumbrance.
Except as set forth above, there are no preemptive or other outstanding rights,
options, warrants, conversion rights, stock appreciation rights, redemption
rights, repurchase rights, agreements, arrangements, calls, commitments or
rights of any kind that obligate Euronext or any of its Subsidiaries to issue or
sell any shares of capital stock or other securities of Euronext or any of its
Subsidiaries or any Joint Venture or any securities or obligations convertible
or exchangeable into or exercisable for, or giving any Person a right to
subscribe for or acquire, any Euronext Shares or other securities of Euronext or
any of its Subsidiaries or any Joint Venture, and no securities or obligations
evidencing such rights are authorized, issued or outstanding. Euronext does not
have outstanding any bonds, debentures, notes or other obligations the holders
of which have the right to vote (or
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convertible into or exercisable for securities having the right to vote) with
the stockholders of Euronext on any matter.
(c) COMPANY AUTHORITY.
(i) Euronext has all requisite company power and authority and has
taken all company action necessary in order to authorize, execute, deliver
and perform its obligations under this Agreement, and to consummate the
Offer and the other transactions contemplated hereby (including all actions
by the Euronext Boards set forth in clause (ii)(A) below). This Agreement
is a valid and binding agreement of Euronext, enforceable against Euronext
in accordance with its terms, subject, as to enforcement, to the Bankruptcy
and Equity Exception. The representations and warranties set forth in this
Section 6.2(c)(i) shall apply MUTATIS MUTANDIS with respect to both the
Original Combination Agreement and this Agreement, and, with respect to the
Original Combination Agreement, shall be made as of the Original Execution
Date and, with respect to this Agreement, shall be made as of the Execution
Date; PROVIDED, HOWEVER, that none of the representations and warranties
set forth in this Section 6.1(c)(i) "speaks as of an earlier date" for
purposes of Section II(a) of Annex II.
(ii) Each Euronext Board: (A) has approved, adopted and declared
advisable this Agreement and the Offer and the other transactions
contemplated hereby; (B) has recommended that the Euronext shareholders
approve this Agreement and the transactions contemplated by this Agreement
and accept the Offer and tender their Euronext Shares in the Offer; and (C)
has received the opinions of its financial advisors, Xxxxxx Xxxxxxx
International and ABN AMRO, to the effect that the aggregate consideration
to be received by holders of Euronext Shares who tender their Euronext
Shares in the Offer is fair from a financial point of view, as of the date
of such opinion, to such holders, a copy of which opinion has been
delivered to NYSE Group. It is agreed and understood that such opinion is
for the benefit of the Euronext Boards and may not be relied on by NYSE
Group. The representations and warranties set forth in clause (A) of this
Section 6.2 (c)(ii) shall apply MUTATIS MUTANDIS with respect to both the
Original Combination Agreement and this Agreement, and, with respect to the
Original Combination Agreement, shall be made as of the Original Execution
Date and, with respect to this Agreement, shall be made as of the Execution
Date; PROVIDED, HOWEVER, that none of the representations and warranties
set forth in clause (A) of this Section 6.1(c)(ii) "speaks as of an earlier
date" for purposes of Section II(a) of Annex II.
(d) NO CONFLICTS.
(i) (A) Neither the execution and delivery by Euronext of this
Agreement, nor the compliance by it with all of the provisions of and the
performance by it of its obligations under this Agreement, nor the
consummation of the Merger or the Offer and the other transactions herein
contemplated will conflict with, or result in a breach or violation of, or
result in any acceleration of any rights
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or obligations or the payment of any penalty under or the creation of a
lien, pledge, security interest or other encumbrance on assets (with or
without the giving of notice or the lapse of time) pursuant to, or permit
any other party any improvement in rights with respect to or permit it to
exercise, or otherwise constitute a default under, any provision of any
Contract in effect as of the date hereof, or result in any change in the
rights or obligations of any party under any Contract in effect as of the
date hereof, to which Euronext or any of its Subsidiaries is a party or by
which Euronext or any of its Subsidiaries or any of their respective assets
is bound, (B) nor will such execution and delivery, compliance, performance
or consummation result in any breach or violation of, or a default under,
the provisions of the Euronext Organizational Documents or the Euronext
Subsidiary Organizational Documents, or any Law applicable to it, other
than as set forth in this Agreement, or to any penalty or sanction, except
for such conflicts, breaches, violations, defaults, payments,
accelerations, creations or changes that (other than with respect to clause
(B) above), individually or in the aggregate, have not had and are not
reasonably expected to have, a Material Adverse Effect on Euronext.
(ii) Neither Euronext nor any of its Subsidiaries is a party to or
bound by any non-competition Contracts or other Contract that purports to
limit in any material respect either the type of business in which Euronext
or its Subsidiaries (or, after giving effect to the completion of the Offer
and the Merger, Holdco or its Subsidiaries) may engage or the manner or
locations in which any of them may so engage in any business.
(e) GOVERNMENTAL APPROVALS AND CONSENTS. Other than (i) the approvals
and consents to be obtained from the SEC or any European Regulator, (ii) the
filings and/or notices under the HSR Act, if applicable, the Exchange Act and
the Securities Act, if any, and (iii) the approvals set forth on Section 6.2(e)
of the Euronext Disclosure Letter, state securities, takeover and "blue sky"
laws, no authorizations, consents, approvals, orders, permits, notices, reports,
filings, registrations, qualifications and exemptions of, with or from, or other
actions are required to be made by Euronext or any of its Subsidiaries or any
Joint Venture with, or obtained by Euronext or any of its Subsidiaries or any
Joint Venture from, any Governmental Entity or Self-Regulatory Organization in
connection with the execution and delivery by Euronext of this Agreement, the
performance by Euronext of its obligations hereunder, and the consummation of
the transactions contemplated hereby. Euronext has made, in respect of the Offer
and all other transactions contemplated in the Agreement, all required
notifications and has obtained all required consents, advice and approvals
pursuant to the relevant provisions of the Social and Economic Council Merger
Regulation (SER-FUSIEGEDRAGSREGELS 2000), the Works Council Act (WET OP DE
ONDERNEMINGSRADEN) and any applicable collective bargaining agreement
(COLLECTIEVE ARBEIDSOVEREENKOMST (CAO)).
(f) EURONEXT REPORTS; FINANCIAL STATEMENTS.
(i) Euronext has made available to NYSE Group each filing made with
the AMF or the Netherlands Authority for the Financial Markets (AUTORITEIT
-00-
XXXXXXXXXX XXXXXXX) since December 31, 2003 (including exhibits, annexes
and any amendments thereto) (collectively, the "EURONEXT REPORTS"). Each of
the Euronext Reports is true and complete, was timely made and is in
material compliance with all applicable Laws and other requirements
applicable to such Euronext Reports. Neither Euronext nor any of its
Subsidiaries has received, or knows of, any comments or inquiries from any
Governmental Entity relating to any Euronext Report that, individually or
in the aggregate, have had or are reasonably expected to have a Material
Adverse Effect on Euronext. As of their respective dates (or if amended, as
of the date of such amendment), the Euronext Reports did not contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements made
therein, in light of the circumstances in which they were made, not
misleading. Each of the consolidated balance sheets included in or
incorporated by reference into the Euronext Reports (including the related
notes and schedules) fairly presents the consolidated financial position of
Euronext and its Subsidiaries as of its date and each of the consolidated
statements of income and of changes in financial position included in or
incorporated by reference into the Euronext Reports (including any related
notes and schedules) fairly presents the results of operations, retained
earnings, stockholders' equity, cash flows and changes in financial
position, as the case may be, of Euronext and its Subsidiaries for the
periods set forth therein (subject, in the case of unaudited statements, to
notes and normal year-end audit adjustments that will not be material in
amount or effect), in each case in conformity with International Financial
Reporting Standards issued by the International Accounting Standards Board
("IFRS") or French generally accepted accounting principles consistently
applied during the periods involved, except as may be noted therein.
(ii) There is no outstanding personal loan that was made or arranged
by Euronext or any of its affiliates to any executive officer or director
of Euronext or any of its Subsidiaries.
(iii) To the extent required by "best practices" in The Netherlands,
Euronext (A) has designed reasonable disclosure controls and procedures to
ensure that material information relating to Euronext, including its
consolidated Subsidiaries, is made known to the management of Euronext by
others within those entities, and (B) has disclosed, based on its most
recent evaluation prior to the date hereof, to Euronext's auditors and the
audit committee of the Euronext Boards (x) any significant deficiencies
known to Euronext's management or internal auditors (in-sourced or
outsourced) in the design or operation of internal controls which could
adversely affect in any material respect Euronext's ability to record,
process, summarize and report financial data and has identified for
Euronext's auditors any material weaknesses known to Euronext's management
or internal auditors (in-sourced or outsourced) in internal controls and
(y) any fraud known to Euronext's management or internal auditors
(in-sourced or outsourced), whether or not material, that involves
management or other employees who have a significant role in Euronext's
internal controls.
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(g) ABSENCE OF CERTAIN CHANGES. Except as disclosed in Euronext
Reports, since the December 31, 2005, Euronext and its Subsidiaries have
conducted their respective businesses only in, and have not engaged in any
material transaction other than according to, the ordinary and usual course of
such businesses and there has not been (i) any change or development that,
individually or in the aggregate, has had or is reasonably expected to have, a
Material Adverse Effect on Euronext; (ii) any material damage, destruction or
other casualty loss with respect to any material asset or property owned, leased
or otherwise used by Euronext or any of its Subsidiaries, whether or not covered
by insurance; or (iii) any change by Euronext in financial accounting
principles, practices or methods that is not required by IFRS. Since December
31, 2005, except as provided for herein or as disclosed in Euronext Reports,
there has not been any increase in the compensation payable or that could become
payable by Euronext or any of its Subsidiaries to officers or key employees or
any amendment of or other modification to any of the Euronext Benefit Plans
other than increases or amendments in the ordinary and usual course consistent
with past practice.
(h) COMPLIANCE. Neither Euronext nor any of its Subsidiaries is in
conflict with, or in default or violation of, (i) any Law of any Governmental
Entity or Self-Regulatory Organization or (ii) any Contract to which Euronext or
any of its Subsidiaries is a party or by which Euronext or any of its
Subsidiaries or its or any of their respective properties is bound or affected,
except in each of cases (i) and (ii), for any such conflicts, defaults or
violations that, individually or in the aggregate, have not had and are not
reasonably expected to have a Material Adverse Effect on Euronext. Except as
expressly set forth in the Euronext Reports, no investigation or review by any
Governmental Entity or any Self-Regulatory Organization with respect to Euronext
or any of its Subsidiaries is pending or, to the knowledge of Euronext,
threatened, nor has any Governmental Entity or any Self-Regulatory Organization
indicated an intention to conduct the same, except, in each case, for those the
outcome of which, individually or in the aggregate, have not had and are not
reasonably expected to have a Material Adverse Effect on Euronext. Except as set
forth in the Euronext Reports or as, individually or in the aggregate, is not
reasonably expected to have a Material Adverse Effect on Euronext, (x) no
material change is required in Euronext's or any of its Subsidiaries' processes,
properties or procedures to comply with any Laws in effect on the date hereof or
enacted as of the date hereof and scheduled to be effective after the date
hereof, and (y) Euronext has not received any written notice or written
communication of any noncompliance with any Law. Each of Euronext and its
Subsidiaries has all Permits of all Governmental Entities and Self-Regulatory
Organizations necessary to conduct its business as presently conducted, except
where the failure to have such Permits, individually or in the aggregate, has
not had and is not reasonably expected to have a Material Adverse Effect on
Euronext.
(i) LITIGATION AND LIABILITIES. Except as disclosed in the Euronext
Reports filed prior to the date hereof, there are no (i) civil, criminal or
administrative actions, suits, claims, hearings, investigations or proceedings
pending or, to the knowledge of Euronext, threatened against Euronext, any of
its Subsidiaries or any of their respective directors or officers, or (ii)
obligations or liabilities, whether or not accrued, contingent or otherwise and
whether or not required to be disclosed, including those relating to, or any
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other facts or circumstances of which, to the knowledge of Euronext, could
result in any claims against, or obligations or liabilities of, Euronext or any
of its affiliates, except, in both cases, for those that, individually or in the
aggregate, have not had and are not reasonably expected to have a Material
Adverse Effect on Euronext.
(j) EMPLOYEE BENEFITS.
(i) All material benefit and compensation plans, contracts, policies
or arrangements covering current or former employees of Euronext and its
Subsidiaries and current or former directors of Euronext and its
Subsidiaries, including, but not limited to, deferred compensation, equity
option, equity purchase, equity appreciation rights, equity based incentive
and bonus plans (the "EURONEXT BENEFIT PLANS") are listed in Section 6.2(j)
of the Euronext Disclosure Letter. True and complete copies of all material
Euronext Benefit Plans listed in Section 6.2(j) of the Euronext Disclosure
Letter, including, but not limited to, any trust instruments, insurance
contracts and all amendments thereto, have been made available to NYSE
Group.
(ii) All Euronext Benefit Plans are established and operated in
substantial compliance with their terms and all applicable Laws. All
Euronext Benefit Plans intended to qualify for special tax treatment meet
all requirements for such treatment, and all Euronext Benefit Plans
required to be funded and/or book-reserved are fully funded and/or book
reserved, as appropriate, based upon reasonable actuarial assumptions.
(iii) As of the date hereof, there is no pending or, to the knowledge
of Euronext, threatened, litigation relating to the Euronext Benefit Plans
that, individually or in the aggregate, has had, or is reasonably expected
to have, a Material Adverse Effect on Euronext. Other than as required by
applicable Law, neither Euronext nor any of its Subsidiaries has any
material obligations for retiree welfare benefits to current or former
employees of Euronext or any of its Subsidiaries. Other than as prohibited
by applicable Law, Euronext or its Subsidiaries may amend or terminate any
such plan at any time without incurring any liability thereunder other than
in respect of claims incurred prior to such amendment or termination.
(iv) There has been no amendment to, announcement by Euronext or any
of its Subsidiaries relating to, or change in employee participation or
coverage under, any Euronext Benefit Plan which would increase the expense
of maintaining such plan above the level of the expense incurred therefor
for the most recent fiscal year. Neither the execution of this Agreement
nor the consummation of the transactions contemplated hereby will (A)
entitle any Euronext Employees to additional compensation or to severance
pay or any increase in severance pay upon any termination of employment
after the date hereof, (B) accelerate the time of payment or vesting or
result in any payment or funding (through a grantor trust or otherwise) of
compensation or benefits under, increase the amount payable or result
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in any other material obligation pursuant to, any of the Euronext Benefit
Plans (C) accelerate the time of payment or vesting of the Euronext Stock
Options or the Euronext Stock-Based Award, or (D) limit or restrict the
right of Euronext or, after the consummation of the Merger or any other
transactions contemplated hereby, Holdco to merge, amend or terminate any
of the Euronext Benefit Plans.
(k) TAXES.
(i) Except as would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect on Euronext: (A) all Tax
Returns that are required to be filed by Euronext or any of its
Subsidiaries have been timely filed (taking into account any extension of
time within which to file), and all such Tax Returns are true and complete;
(B) Euronext and its Subsidiaries have paid all Taxes required to be paid
by any of them, including any Taxes required to be withheld from amounts
owing to any employee, creditor or third party, except with respect to
matters for which adequate reserves have been established in accordance
with IFRS; (C) there is no audit, examination, deficiency, refund
litigation, proposed adjustment or matter in controversy with respect to
any Taxes or Tax Return of Euronext or any of its Subsidiaries; (D) the Tax
Returns of Euronext and each of its Subsidiaries have been examined by the
applicable Tax Authority (or the applicable statutes of limitations for the
assessment of income Taxes for such periods have expired) for all periods
through and including December 31, 1998, and no deficiencies were asserted
as a result of such examinations which have not been resolved and fully
paid or accrued as a liability on the most recent financial statements
contained in the Euronext Reports; (E) neither Euronext nor any of its
Subsidiaries have waived any statute of limitations with respect to Taxes
or agreed to any extension of time with respect to a Tax assessment or
deficiency; (F) all Taxes due and payable by Euronext or any of its
Subsidiaries have been adequately provided for, in accordance with IFRS, in
the financial statements of Euronext and its Subsidiaries for all periods
ending through the date hereof; (G) neither Euronext nor any of its
Subsidiaries has constituted a "distributing corporation" or a "controlled
corporation" (within the meaning of Section 355(a)(1)(A) of the Code) in a
distribution of stock intended to qualify for tax-free treatment under
Section 355 of the Code (or any similar provision of state, local or
non-U.S. law) in the three years prior to the date of this Agreement; and
(H) none of Euronext or any of its Subsidiaries has any liability for Taxes
of any Person (other than Euronext or any of its Subsidiaries) under
article 39 or article 43 of the Invorderingswet 1990 (or any similar
provision of state, local or non-U.S. law), as transferee or successor, by
contract or otherwise; and (I) There are no Liens for Taxes upon any
property or assets of Euronext or any of its Subsidiaries, except for Liens
for Taxes not yet due and payable or for which adequate reserves have been
provided in accordance with IFRS.
(ii) No private letter rulings, technical advice memoranda or similar
agreements or rulings have been entered into or issued by any Taxing
Authority
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with respect to Euronext or any of its Subsidiaries for any taxable year
for which the statute of limitations has not yet expired.
(l) LABOR MATTERS. Neither Euronext nor any of its Subsidiaries is a
party to or otherwise bound by any material collective bargaining agreement,
Contract or other agreement or understanding with a labor union or labor
organization, nor is Euronext or any of its Subsidiaries the subject of any
material proceeding asserting that Euronext or any of its Subsidiaries has
committed an unfair labor practice or is seeking to compel it to bargain with
any labor union or labor organization nor is there pending or, to the knowledge
of Euronext, threatened, nor has there been for the past five years, any
material Strike involving Euronext or any of its Subsidiaries, except for any
general Strikes that are not directed exclusively at Euronext or any of its
Subsidiaries.
(m) INSURANCE. All insurance policies maintained by Euronext and its
Subsidiaries provide coverage for those risks reasonably foreseeable with
respect to the business of Euronext and its Subsidiaries, and their respective
properties and assets as is customary for companies conducting the business
conducted by Euronext and its Subsidiaries during such time period, are in
character and amount at least equivalent to that carried by Persons engaged in
similar businesses and subject to the same or similar perils or hazards, and are
sufficient for compliance with all Laws currently applicable to Euronext and its
Subsidiaries. None of Euronext or any of its Subsidiaries has received since
January 1, 2006 any notice of cancellation or termination with respect to any
insurance policy of Euronext or its Subsidiaries. The insurance policies of
Euronext and its Subsidiaries are valid and enforceable policies in all
respects. No claims have been made under Euronext's directors' and officers'
liability insurance policies since December 31, 2001, and, as of the date of
this Agreement, no such claims are pending.
(n) INTELLECTUAL PROPERTY.
(i) Except as has not had or is not reasonably expected to have a
Material Adverse Effect on Euronext, (A) Euronext and/or at least one of
its Subsidiaries exclusively owns, is licensed to use or otherwise
possesses sufficient and legally enforceable rights to use all Intellectual
Property which is owned by or necessary to the operation of the business of
Euronext as currently conducted (the "EURONEXT INTELLECTUAL PROPERTY"), and
(B) the consummation of the transactions contemplated by this Agreement
will not alter or impair such rights. Except as has not had or is not
reasonably expected to have a Material Adverse Effect on Euronext: (A) the
Euronext Intellectual Property owned by Euronext is valid, subsisting and
enforceable, (B) Euronext's and/or its Subsidiaries' ownership of and right
to use the Euronext Intellectual Property is free and clear of any lien,
pledge, security interest or other encumbrance and (C) no other Person has
the right to use any of the owned Euronext Intellectual Property, except
pursuant to non-exclusive license grants made in writing by Euronext. All
material Contracts under which Euronext or any of its Subsidiaries licenses
or otherwise permits another Person, or is licensed or otherwise permitted
by another Person, to use any Euronext Intellectual Property (the "EURONEXT
INTELLECTUAL PROPERTY CONTRACTS") are
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legal, valid, binding and enforceable against the other party, and are in
full force and effect, subject to Bankruptcy and Equity Exceptions. Except
as has not had or is not reasonably expected to have a Material Adverse
Effect on Euronext, no claim has been made that Euronext or any of its
Subsidiaries, or to the knowledge of Euronext, another person, has breached
any Euronext Intellectual Property Contract.
(ii) There are no pending or, to the knowledge of Euronext, threatened
claims by any Person alleging infringement by Euronext or its Subsidiaries
for their use of any Euronext Intellectual Property that are reasonably
expected to have a Material Adverse Effect on Euronext. Except as has not
had or is not reasonably expected to have a Material Adverse Effect on
Euronext, to the knowledge of Euronext, the conduct of the business of
Euronext as currently conducted does not infringe upon any Intellectual
Property rights or any other proprietary right of any Person. To the
knowledge of Euronext, there is no unauthorized use, infringement or
misappropriation and other violation of Euronext Intellectual Property by
any Person, including any Employee of Euronext or any of its Subsidiaries,
except as would not reasonably be likely to have a Material Adverse Effect
on Euronext. Euronext and its Subsidiaries have taken commercially
reasonable steps to maintain the confidentiality of the trade secrets and
other non-public information owned by Euronext or its Subsidiaries, or
received from third Persons which Euronext or its Subsidiaries is obligated
to treat as confidential, except for such steps the failure of which to
have taken has not, individually or in the aggregate, had or reasonably be
expected to have a Material Adverse Effect on Euronext.
(iii) To the knowledge of Euronext and except as has not had or is not
reasonably expected to have a Material Adverse Effect on Euronext, the IT
Assets of Euronext operate and perform in all material respects in
accordance with their documentation and functional specifications, to the
extent available, or as otherwise required by Euronext and its Subsidiaries
in connection with the business of Euronext as currently conducted. Each of
Euronext and its Subsidiaries has implemented reasonable backup and
disaster recovery measures consistent with industry standards.
(o) BROKERS AND FINDERS. None of Euronext, its Subsidiaries nor any of
their respective officers, directors or employees has employed any broker or
finder or incurred any liability for any brokerage fees, commissions or finders,
fees in connection with the Merger or the other transactions contemplated by
this Agreement, except that Euronext has employed Xxxxxx Xxxxxxx International
and ABN AMRO as its financial advisors, the arrangements with which have been
disclosed in writing to NYSE Group prior to the date hereof.
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ARTICLE VII
COVENANTS
Section 7.1. INTERIM OPERATIONS. NYSE Group and Euronext each
covenants and agrees as to itself and its Subsidiaries that, after the date
hereof and until the earlier of the Effective Time or the termination of this
Agreement in accordance with its terms, unless NYSE Group (in the case of
Euronext) or Euronext (in the case of NYSE Group) shall otherwise approve in
writing, and except as otherwise expressly contemplated by this Agreement or, in
the case of Euronext, except as otherwise set forth in Schedule 7.1 of the
Euronext Disclosure Letter or, in the case of NYSE Group, except as otherwise
set forth in Schedule 7.1 of the NYSE Group Disclosure Letter:
(a) the business of it and its Subsidiaries shall be conducted in the
ordinary and usual course consistent with past practice and, to the extent
consistent therewith, it and its Subsidiaries shall use their respective
reasonable best efforts to preserve its business organization intact and
maintain its existing relations and goodwill with all Governmental Entities
(including the SEC and the European Regulators and other Euronext stock market
regulators), providers of order flow, customers, suppliers, distributors,
creditors, lessors, Employees and stockholders, as appropriate;
(b) (i) it shall not issue, sell, pledge, dispose of or encumber any
capital stock, as appropriate, owned by it in any of its Subsidiaries; (ii)
except as set forth in Article IV of this Agreement and except as required to
pay the Special Euronext Distribution, it shall not amend its certificate of
incorporation, articles of association or bylaws, as applicable; (iii) it shall
not split, combine or reclassify its outstanding shares of capital stock; (iv)
except for the payment of the Special Euronext Distribution, it shall not
declare, set aside or pay any type of dividend, whether payable in cash, stock
or property, in respect of any capital stock, as appropriate, other than
dividends payable by its direct or indirect wholly owned Subsidiaries to it or
another of its direct or indirectly wholly owned Subsidiaries; or (v) it shall
not repurchase, redeem or otherwise acquire, or permit any of its Subsidiaries
to purchase or otherwise acquire, any interests or shares of its capital stock,
as applicable, or any securities convertible into or exchangeable or exercisable
for any shares of its capital stock, as applicable;
(c) neither it nor any of its Subsidiaries shall (i) except for the
issuance of Euronext Stock Options and Euronext Stock-Based Awards authorized at
the annual general meeting of Euronext on May 23, 2006, issue, sell, pledge,
dispose of or encumber any shares of, or securities convertible into or
exchangeable or exercisable for, or options, warrants, calls, commitments or
rights of any kind to acquire, capital stock of any class, as appropriate, or
any bonds, debentures, notes or other obligations the holders of which have the
right to vote (or convertible into or exercisable for securities having the
right to vote) with its stockholders on any matter or any other property or
assets other than shares of NYSE Group Common Stock or Euronext Shares (or
Euronext Paris ordinary shares, as the case may be) issuable pursuant to
stock-based awards outstanding on or awarded prior to the date hereof under the
NYSE Group Stock Plans or Euronext Stock Plans; (ii) other
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than in the ordinary and usual course of business, transfer, lease, license,
guarantee, acquire, sell, mortgage, pledge, dispose of or encumber any other
material property or assets (including capital stock of any of its
Subsidiaries); (iii) incur any indebtedness for borrowed money (including any
guarantee of such indebtedness); or (iv) make or authorize or commit for any
capital expenditures, except as provided in the business plan for each of NYSE
Group and Euronext, respectively, that has been provided to the other prior to
the date of this Agreement (PROVIDED that each of NYSE Group and Euronext shall
be permitted to make or authorize or commit for any capital expenditures in an
amount that is between 90% and 110% of the amounts set forth in such party's
respective business plan);
(d) neither it nor any of its Subsidiaries shall (i) terminate,
establish, adopt, enter into, make any new grants or awards under, amend or
otherwise modify, any Benefit Plan, as the case may be, or any other arrangement
that would be a NYSE Group Benefit Plan or a Euronext Benefit Plan if in effect
on the date hereof other than offer letters provided to newly-hired employees
(but excluding offer letters to executive officers of it and its Subsidiaries or
to employees whose target compensation is in excess of $700,000); PROVIDED that
such offer letters do not include any compensation or benefits that vest,
accelerate or otherwise are affected by or result in any payment or funding in
connection with any of the transactions contemplated by this Agreement
(including without limitation upon signing, closing, shareholder approval of or
any other event closely associated with the Offer, the Merger or the
Post-Closing Reorganization) either alone or in conjunction with any other
event, or (ii) except for the issuance of Euronext Stock Options and Euronext
Stock-Based Awards authorized at the annual general meeting of Euronext on May
23, 2006 and increases occurring in the ordinary and usual course of business
consistent with past practice (which shall include normal periodic performance
reviews and related increases of annual base salaries not to exceed 7% in the
aggregate), increase the salary, wage, bonus or other compensation of any
employees or fringe benefits of any director, officer or employee or enter into
any contract, agreement, commitment or arrangement to do any of the foregoing or
(iii) enter into or renew any contract, agreement, commitment or arrangement
(other than a renewal occurring in accordance with the terms thereof) providing
for the payment to any director, officer or employee of such party of
compensation or benefits contingent, or the terms of which are materially
altered, in connection with any of the transactions contemplated by this
Agreement (including without limitation upon signing, closing, shareholder
approval of or any other event closely associated with the Offer, the Merger or
the Post-Closing Reorganization) either alone or in conjunction with any other
event or (iv) provide, with respect to the grant of any stock option, restricted
stock, restricted stock unit or other equity-related award (or with respect to
any outstanding equity-related award) that the vesting of any such stock option,
restricted stock, restricted stock unit or other equity-related award or any
Benefit Plan shall accelerate or otherwise be affected by or result in any
payment or funding in connection with any of the transactions contemplated by
this Agreement (including without limitation upon signing, closing, shareholder
approval of or any other event closely associated with the Offer, the Merger or
the Post-Closing Reorganization) either alone or in conjunction with any other
event;
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(e) except in the ordinary and usual course of business consistent
with past practice, neither it nor any of its Subsidiaries shall settle or
compromise any material claims or litigation, and neither it nor any of its
Subsidiaries shall modify, amend or terminate any of its material Contracts or
waive, release or assign any material rights or claims;
(f) neither it nor any of its Subsidiaries shall make or change any
material Tax election, change any material method of Tax accounting, file any
materially amended Tax Return, or settle or compromise any material audit or
proceeding relating to Taxes; or permit any insurance policy naming it as a
beneficiary or loss-payable payee to be cancelled or terminated except in the
ordinary and usual course of business;
(g) neither it nor any of its Subsidiaries shall permit any change in
its credit practices or financial accounting principles, policies or practice
(including any of its practices with respect to accounts receivable or accounts
payable), except to the extent that any such changes in financial accounting
principles, policies or practices shall be required by changes in GAAP (in the
case of NYSE Group) or IFRS (in the case of Euronext);
(h) neither it nor any of its Subsidiaries shall enter into any
"non-compete" or similar Contract that would materially restrict the business of
Holdco or any of its Subsidiaries following the Effective Time;
(i) except as permitted pursuant to Section 7.1(d), neither it nor any
of its Subsidiaries shall enter into any Contract between itself, on the one
hand, and any of its affiliates, employees, officers or directors, on the other
hand; and
(j) neither it nor any of its Subsidiaries will authorize or enter
into an agreement to do any of the foregoing set forth in Sections 7.1(a) - (i)
if NYSE Group or Euronext, as applicable, would be prohibited by the terms of
Sections 7.1(a) - (i) from doing the foregoing.
Section 7.2. ACQUISITION PROPOSALS.
(a) Without limiting any of such party's other obligations under this
Agreement, each of NYSE Group and Euronext agrees that, from and after the date
hereof until the earlier of the Closing and the termination of this Agreement in
accordance with its terms, neither it nor any of its Subsidiaries nor any of the
officers and directors of it or its Subsidiaries (including, with respect to
Euronext, any member of a Euronext Board) shall, and that it shall direct and
use its reasonable best efforts to cause its and its Subsidiaries' employees,
agents and representatives (including any investment banker, attorney or
accountant retained by it or any of its Subsidiaries) not to, directly or
indirectly, (i) initiate, solicit, knowingly encourage (including by way of
furnishing information), facilitate, or induce any inquiries or the making,
submission or announcement of, any proposal or offer that constitutes, or could
reasonably be expected to result in, an Acquisition Proposal, (ii) subject to
the requirements of applicable Law after consultation with outside counsel, have
any discussion with any Person relating to an Acquisition Proposal, or engage in
any
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negotiations concerning an Acquisition Proposal, or knowingly facilitate any
effort or attempt to make or implement an Acquisition Proposal, (iii) subject to
the requirements of applicable Law after consultation with outside counsel,
provide any confidential information or data to any Person, (iv) approve or
recommend, or propose publicly to approve or recommend, any Acquisition Proposal
or (v) approve or recommend, or propose to approve or recommend, or execute or
enter into, any letter of intent, agreement in principle, merger agreement,
acquisition agreement, option agreement or other similar agreement or propose
publicly or agree to do any of the foregoing related to any Acquisition
Proposal.
An "ACQUISITION PROPOSAL" for Euronext or NYSE Group means any offer
or proposal for, or any indication of interest in, (i) any direct or
indirect acquisition or purchase of Euronext or NYSE Group, as applicable,
or any of its Subsidiaries that constitutes 10% or more of the consolidated
gross revenue or consolidated gross assets of Euronext or NYSE Group, as
applicable, and its Subsidiaries, taken as a whole (such Subsidiary, a
"MAJOR SUBSIDIARY"); (ii) any direct or indirect acquisition or purchase of
(A) 10% or more of any class of equity securities or voting power or 10% or
more of the consolidated gross assets of Euronext or NYSE Group, as
applicable, or (B) 50% or more of any class of equity securities or voting
power of any of its Major Subsidiaries; (iii) any tender offer that, if
consummated, would result in any Person beneficially owning 10% or more of
any class of equity securities or voting power of Euronext or NYSE Group,
as applicable; (iv) any merger, reorganization, share exchange,
consolidation, business combination, recapitalization, liquidation,
dissolution or similar transaction involving Euronext or NYSE Group, as
applicable, or any Major Subsidiary of Euronext or NYSE Group, as
applicable.
(b) Within two business days after receipt of an Acquisition Proposal
or any request for nonpublic information or inquiry that Euronext reasonably
believes could lead to an Acquisition Proposal for Euronext or that NYSE Group
reasonably believes could lead to an Acquisition Proposal for NYSE Group,
Euronext or NYSE Group, as applicable, shall provide the other party hereto with
oral and written notice of the material terms and conditions of such Acquisition
Proposal, request or inquiry, and the identity of the Person making any such
Acquisition Proposal, request or inquiry. Thereafter, Euronext or NYSE Group, as
applicable, shall provide the other party hereto, as promptly as practicable,
with oral and written notice setting forth all such information as is reasonably
necessary to keep such other party informed in all material respects of the
status and details (including material amendments or proposed material
amendments) of any such Acquisition Proposal, request or inquiry.
(c) Notwithstanding anything in this Agreement to the contrary, each
of NYSE Group and Euronext or their respective Boards shall be permitted to (A)
in the case of NYSE Group, comply with Rule 14d-9 and Rule 14e-2 under the
Exchange Act and, in the case of Euronext, comply with Article 231-20 of the
GRAMF, (B) effect a Change in NYSE Group Recommendation or Change in Euronext
Recommendation, or (C) (x) in the case of NYSE Group, prior to the receipt by
NYSE Group of the NYSE Group Requisite
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Vote and (y) in the case of Euronext, prior to the completion of the Initial
Offering Period, engage in any discussions or negotiations with, or provide any
information or data to, any Person in response to an unsolicited bona fide
written Acquisition Proposal by any such Person, if and only to the extent that,
(i) in the case of clause (B) above, it has received an unsolicited bona fide
written Acquisition Proposal from a third party and its Board concludes in good
faith (after consultation with its outside legal counsel and financial advisors)
that such Acquisition Proposal constitutes a Superior Proposal, (ii) in the case
of clause (C) above, its Board concludes in good faith (after consultation with
its outside legal counsel and financial advisors) that there is a reasonable
likelihood that such Acquisition Proposal could constitute a Superior Proposal,
(iii) in the case of clause (B) or (C) above, its Board, after consultation with
its outside legal counsel, determines in good faith that such action is
necessary in order for its directors to comply with their respective fiduciary
duties under applicable Law, (iv) in the case of clause (C) above, prior to
providing any information or data to any Person in connection with an
Acquisition Proposal by any such Person, its Board receives from such Person an
executed confidentiality agreement with terms no less restrictive, in the
aggregate, than those contained in the Confidentiality Agreement, and (v) in the
case of clause (C) above, NYSE Group or Euronext, as the case may be, is not
then in material breach of its obligations under this Section 7.2. For purposes
of this Section 7.2(c), references to "BOARD" means, in relation to NYSE Group,
the Board of Directors of NYSE Group and, in relation to Euronext, the Euronext
Boards.
(d) Prior to any Change in NYSE Group Recommendation, NYSE Group shall
provide Euronext written notice (the "NYSE GROUP SUPERIOR PROPOSAL NOTICE") of
NYSE Group's intention to make a Change in NYSE Group Recommendation at least
four business days prior to making a Change in NYSE Group Recommendation, and
shall consider any modifications to the terms of the transaction contemplated by
this Agreement that are proposed by Euronext after its receipt of the NYSE Group
Superior Proposal Notice (with respect to which modifications NYSE Group and
Euronext shall negotiate in good faith during such four-business day period), in
determining whether an Acquisition Proposal still constitutes a Superior
Proposal for NYSE Group after such four-business day period. Prior to any Change
in Euronext Recommendation, Euronext shall provide NYSE Group written notice
(the "EURONEXT SUPERIOR PROPOSAL NOTICE") of Euronext's intention to make a
Change in Euronext Recommendation at least four business days prior to making a
Change in Euronext Recommendation, and shall consider any modifications to the
terms of the transaction contemplated by this Agreement that are proposed by
NYSE Group after its receipt of the Euronext Superior Proposal Notice (with
respect to which modifications NYSE Group and Euronext shall negotiate in good
faith during such four-business day period), in determining whether an
Acquisition Proposal still constitutes a Superior Proposal for Euronext after
such four-business day period.
(e) In the event that a third party who has previously made an
Acquisition Proposal that the Board of Directors of NYSE Group or the Euronext
Boards, as the case may be, has or have determined in accordance with this
Section 7.2 is a Superior Proposal subsequently modifies or amends in an adverse
manner any material term of such Superior Proposal, then such Board's prior
determination shall be null and void and such Board shall be subject to the
provisions of Section 7.2(c) and (d) in all
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respects (including the obligation to deliver a new NYSE Group Superior Proposal
Notice or Euronext Superior Proposal Notice, as applicable, and negotiate in
good faith with Euronext or NYSE Group, as applicable).
(f) Except as ordered by a court of competent jurisdiction or by
shareholder action, each of NYSE Group and Euronext agrees that it will, and
will cause its senior officers, directors and representatives to, immediately
cease and cause to be terminated any activities, discussions or negotiations
existing as of the date of this Agreement with any parties conducted heretofore
with respect to any Acquisition Proposal. Each of NYSE Group and Euronext agrees
that it will use reasonable best efforts to promptly inform its directors,
officers, agents and representatives of the obligations undertaken in this
Section 7.2. Nothing in this Section 7.2 shall (x) permit Euronext or NYSE Group
to terminate this Agreement (except as specifically provided in Article IX
hereof) or (y) affect any other obligation of Euronext or NYSE Group under this
Agreement, except as otherwise expressly set forth in this Agreement. Except as
ordered by a court of competent jurisdiction or by shareholder action, neither
Euronext nor NYSE Group shall submit to the vote of its stockholders any
Acquisition Proposal other than the Offer or the Merger, respectively.
"SUPERIOR PROPOSAL" means, with respect to NYSE Group or Euronext, a
bona fide written Acquisition Proposal obtained not in breach of this
Section 7.2 for or in respect of 50% or more of the outstanding NYSE Group
Common Stock or Euronext Shares (as applicable) or 50% or more of the
assets of NYSE Group and its Subsidiaries, on a consolidated basis, or
Euronext and its Subsidiaries, on a consolidated basis (as applicable), in
each of case on terms that the Board of Directors of NYSE Group or the
Euronext Boards (as applicable) in good faith concludes (following receipt
of the advice of its financial advisors and outside legal counsel), taking
into account, among other things, all legal, financial, regulatory, timing
and other aspects of the Acquisition Proposal or offer and this Agreement,
and taking into account any improved terms that Euronext (in the case of an
Acquisition Proposal for NYSE Group) or NYSE Group (in the case of an
Acquisition Proposal for Euronext) have offered pursuant to this Section
7.2 deemed relevant by such Board or Boards (including conditions to and
expected timing and risks of consummation and the ability of the party
making such proposal to obtain financing for such Acquisition Proposal) are
more favorable from a financial point of view to the stockholders and other
stakeholders of Euronext or to the stockholders of NYSE Group, as
applicable, than the transactions contemplated by this Agreement (after
taking into account any such improved terms).
Section 7.3. STOCKHOLDERS MEETINGS.
(a) NYSE Group will take, in accordance with applicable Law and the
NYSE Group Organizational Documents, all action necessary to convene a meeting
of its stockholders (the "NYSE GROUP STOCKHOLDERS MEETING") on a date determined
by NYSE Group after consultation with Euronext (the "NYSE GROUP MEETING DATE"),
which date
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shall be as promptly as practicable after the Registration Statement is declared
effective; PROVIDED that, after consultation with Euronext, NYSE Group may
convene the NYSE Group Stockholders Meeting after the SEC shall have granted any
necessary approvals for the consummation of the transactions contemplated by
this Agreement, including any approvals of any application under Rule 19b-4 of
the Exchange Act submitted in connection with the transactions contemplated by
this Agreement. Subject to fiduciary obligations under applicable Law, the Board
of Directors of NYSE Group shall recommend such adoption or approval, as the
case may be, and shall take all lawful action to solicit such adoption and
approval. In the event that subsequent to the date hereof and prior to the NYSE
Group Stockholders Meeting (including any adjournment thereof), the Board of
Directors of NYSE Group determines that this Agreement is no longer advisable
and either makes no recommendation or recommends that its stockholders reject
this Agreement (a "CHANGE IN NYSE GROUP RECOMMENDATION"), which Change in NYSE
Group Recommendation shall be made only in accordance with Section 7.2(c),
Euronext shall have a right to terminate this Agreement in accordance with
Article IX.
(b) Euronext will take, in accordance with applicable Law and the
Euronext Organizational Documents, all action necessary to convene an
extraordinary general meeting of its stockholders (the "EURONEXT STOCKHOLDERS
MEETING") on a date determined by Euronext after consultation with NYSE Group
(the "EURONEXT MEETING DATE"), which date shall be as promptly as practicable
after the information circular (the "EURONEXT SHAREHOLDER CIRCULAR") for the
Euronext Stockholders Meeting shall be completed, to approve the Offer and the
transactions contemplated by this Agreement. Such approval shall require a
simple majority of the votes validly cast at such meeting (the "EURONEXT
REQUISITE VOTE"). Subject to fiduciary obligations under applicable Law, the
Euronext Boards shall recommend such approval and shall take all lawful action
to solicit such approval and shall recommend the Offer to its shareholders and
recommend that they tender their Euronext Shares into the Offer, it being
understood that, after the Euronext Stockholders Meeting and no later than five
business days after the satisfaction or waiver (if and to the extent that such
waiver is permitted by the GRAMF) of the conditions set forth in Annex II hereto
and subject to Section 4.2(c), but prior to the filing of the European Exchange
Offer Documents with the AMF in accordance with applicable regulations, the
Euronext Supervisory Board shall formally reiterate its recommendation that the
stockholders of Euronext tender their Euronext Shares into the Offer. In the
event that subsequent to the date hereof, the Euronext Boards determine that
this Agreement is no longer advisable and either makes no recommendation or
recommends that its shareholders not tender their Euronext Shares into the Offer
(a "CHANGE IN EURONEXT RECOMMENDATION"), which Change in Euronext Recommendation
shall be made only in accordance with Section 7.2(b), NYSE Group shall have a
right to terminate this Agreement in accordance with Article IX.
Section 7.4. REASONABLE BEST EFFORTS; REGULATORY FILINGS AND OTHER
ACTIONS.
(a) REASONABLE BEST EFFORTS; REGULATORY FILINGS. Holdco, NYSE Group
and Euronext shall cooperate with each other and use (and shall cause their
respective
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Subsidiaries to use) their respectivereasonable best efforts to take or cause to
be taken all actions, and do or cause to be done all things, necessary, proper
or advisable on its part under this Agreement and applicable Laws to consummate
and make effective the Offer, the Merger and the other transactions contemplated
by this Agreement (including the New Holdco Charter and the New Holdco Bylaws or
alternative changes to the market or regulatory structure as may be required to
consummate and make effective the Offer and the Merger) as soon as practicable,
including preparing and filing as promptly as practicable all documentation to
effect all necessary notices, reports and other filings and to obtain as
promptly as practicable all consents, registrations, approvals, authorizations
and other Permits (including all approvals and consents to be obtained under the
HSR Act, under the Governmental Approvals, and from the SEC and the European
Regulators) (collectively, "CONSENTS") necessary or advisable to be obtained
from any third party and/or any Governmental Entity or Self-Regulatory
Organization (if any) in order to consummate the transactions contemplated by
this Agreement. Without limiting the generality of the foregoing, Holdco shall
not be entitled to withdraw the Offer after it has been filed with the AMF,
except if such withdrawal is made in connection with the termination of this
Agreement in accordance with Section 9.5. Nothing in this Section 7.4 shall
require, or be construed to require, NYSE Group or Euronext to (A) proffer to,
or agree to, sell or hold separate and agree to sell, or take any other action
with respect to, before or after the Effective Time, any assets, businesses, or
interests in any assets or businesses of Holdco, NYSE Group, Euronext or any of
their respective Subsidiaries or affiliates (or to consent to any sale, or
agreement to sell, by Holdco, NYSE Group or Euronext or any of their respective
Subsidiaries or affiliates, as the case may be, of any of its assets or
businesses), if such action would, individually or in the aggregate, reasonably
be expected to result in a Substantial Detriment to NYSE Group, Euronext or
Holdco or (B) agree to any changes or restriction in the market or regulatory
structure of Holdco, NYSE Group or Euronext or any of their respective
Subsidiaries or affiliates or in any of their respective operations of any such
assets or businesses, if such changes or restrictions would, individually or in
the aggregate, reasonably be expected to result in an Substantial Detriment to
NYSE Group, Euronext or Holdco. Subject to applicable Law and the instructions
of any Governmental Entity, NYSE Group and Euronext shall keep each other
apprised of the status of matters relating to the completion of the transactions
contemplated by this Agreement, including promptly furnishing the other with
copies of notices or other communications received or provided by NYSE Group or
Euronext, as the case may be, or any of their respective Subsidiaries, from or
to any Governmental Entity with respect to such transactions.
"SUBSTANTIAL DETRIMENT" means, with respect to any Person, (i) a
material adverse effect on (A) the business, continuing results of
operations or financial condition of such Person and its Subsidiaries,
taken as a whole or (B) with respect to NYSE Group or Holdco, the authority
or ability of the New York Stock Exchange LLC or the NYSE Arca, Inc. to
continue as national securities exchanges and self-regulatory organizations
(as registered under Section 6 and as defined in Section 3(a)(26),
respectively, of the Exchange Act) and, with respect to Euronext, the
authority or ability of Euronext Paris, Euronext Amsterdam, Euronext
Portugal, Euronext Brussels or LIFFE Administration and Management to
continue to
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operate the markets that they currently operate; PROVIDED that a
"Substantial Detriment" shall not arise or result from any Post-Closing
Reorganization or any action set forth in Section 7.4(a) of the NYSE Group
Disclosure Letter.
(b) MARKET AND REGULATORY STRUCTURE MATTERS. Unless otherwise required
by fiduciary obligations under applicable Law, the Board of Directors of NYSE
Group and the Euronext Boards shall each consider and make such determination
with respect to the other party, its Related Persons (as defined in the
certificate of incorporation of NYSE Group) and the Persons of which Euronext
and NYSE Group are Related Persons, as required by any Governmental Entity and,
in the case of NYSE Group, any Self-Regulatory Organization whose consent is
required for the consummation of the Merger. NYSE Group and its Board of
Directors and Euronext and the Euronext Boards shall use their respective
reasonable best efforts to provide such information to the SEC, the European
Regulators and any other Governmental Entity as is required with respect to the
consideration by the SEC, the European Regulators and any other Governmental
Entity of the amendments to the certificates of incorporation or bylaws of
Holdco, NYSE Group and/or Euronext or alternative changes to market or
regulatory structure as may be required to consummate and make effective the
Merger and the completion of the Offer and the other transactions contemplated
by this Agreement.
(c) PRIOR REVIEW OF CERTAIN INFORMATION. Subject to applicable Laws
relating to the sharing of information, NYSE Group and Euronext shall have the
right to review in advance, and to the extent practicable, each will consult the
other on any filing made with, or written materials submitted to, any third
party and/or any Governmental Entity and Self-Regulatory Organization (if
applicable), in connection with the Merger and the Offer and the other
transactions contemplated by this Agreement (including the Offer Documents).
NYSE Group and Euronext shall provide the other party with the opportunity to
participate in any meeting with any Governmental Entity in respect of any
filings, investigation or other inquiry in connection with the transactions
contemplated hereby. NYSE Group and Euronext shall keep each other apprised of
all material discussions with any Governmental Entity in respect of any filings,
investigation or other inquiry in connection with the transactions contemplated
hereby.
(d) FURNISHING OF INFORMATION. NYSE Group and Euronext each shall,
upon request by the other, furnish the other with all information concerning
itself, its Subsidiaries, affiliates, directors, officers and stockholders and
such other matters as may be reasonably necessary or advisable in connection
with the Offer Documents or any other statement, filing, notice or application
made by or on behalf of Holdco, NYSE Group, Euronext or any of their respective
Subsidiaries to any third party and/or any Governmental Entity in connection
with the Merger and the completion of the Offer and the other transactions
contemplated by this Agreement.
(e) STATUS UPDATES AND NOTICE. Subject to applicable Law and the
instructions of any Governmental Entity and, in the case of NYSE Group,
Self-Regulatory Organization (if applicable), NYSE Group and Euronext each shall
keep the other apprised of the status of matters relating to completion of the
transactions contemplated hereby,
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including promptly furnishing the other with copies of notices or other
communications received by NYSE Group or Euronext, as the case may be, or any of
its Subsidiaries, from any third party and/or any Governmental Entity and
Self-Regulatory Organization (if applicable), with respect to such transactions.
NYSE Group and Euronext each shall give prompt notice to the other of any change
that is reasonably expected to have a Material Adverse Effect on NYSE Group or a
Material Adverse Effect on Euronext, respectively.
(f) FINANCING. NYSE Group and Holdco shall take such actions so that,
as of the filing of the Offer, Holdco shall have (to the extent required by
applicable Law in order to file the Offer with the AMF) sufficient funds or
irrevocable and unconditional financing sources available to it to pay the
aggregate cash consideration payable pursuant to the Offer. To the extent
permitted by applicable Law, Euronext and its Subsidiaries shall use reasonable
best efforts, and shall use reasonable best efforts to cause each of their
respective officers, directors, employees and representatives, to assist and
cooperate with NYSE Group and Holdco in connection with their efforts to obtain
the proceeds of any financing that NYSE Group and Holdco seek in connection with
the Offer, including (i) causing appropriate officers and employees to be
available, on a customary basis and on reasonable advance notice, to meet with
prospective lenders and investors in meetings, drafting sessions, due diligence
sessions, management presentations, road shows and sessions with rating
agencies, (ii) assisting with the preparation of materials for rating agency
presentations, business projections and financial statements (including those
required by the SEC), and assisting NYSE Group and Holdco in preparing offering
memoranda, private placement memoranda, prospectuses and similar documents,
(iii) causing its independent accountants to provide reasonable assistance to
NYSE Group and Holdco, including providing consent to NYSE Group and Holdco to
use their audit reports and any reviews of interim period financial statements
prepared under applicable IFRS standards relating to Euronext and its
Subsidiaries and to provide any necessary "comfort letters," (iv) using
reasonable efforts to cause its attorneys to provide reasonable assistance to
NYSE Group and Holdco, including to provide any necessary and customary legal
opinions, (v) obtaining any necessary rating agencies' confirmations or
approvals and (vi) executing and delivering any other requested certificates or
documents. Euronext will provide to NYSE Group and Holdco and its financing
sources, if any, as promptly as practicable the audited, unaudited and pro forma
and other financial information reasonably requested by NYSE Group or Holdco, in
each case prepared in accordance with the standards set forth in any applicable
financing commitment letter or as otherwise reasonably requested by NYSE Group
or Holdco.
Section 7.5. ACCESS. Subject to applicable Law relating to the sharing
of information, upon reasonable notice, and except as may otherwise be required
by applicable Law, NYSE Group and Euronext each shall (and shall cause its
Subsidiaries to) afford the other's officers, employees, counsel, accountants,
consultants and other authorized representatives ("REPRESENTATIVES") reasonable
access, during normal business hours throughout the period prior to the
Effective Time, to its properties, books, contracts and records and, during such
period, each shall (and shall cause its Subsidiaries to) furnish promptly to the
other all information concerning its business, properties and personnel as may
reasonably be requested; PROVIDED that no investigation pursuant to this Section
7.5
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shall affect or be deemed to modify any representation or warranty made by NYSE
Group or Euronext; PROVIDED, FURTHER, that the foregoing shall not require NYSE
Group or Euronext (i) to permit any inspection, or to disclose any information,
that in the reasonable judgment of NYSE Group or Euronext, as the case may be,
would result in the disclosure of any trade secrets of third parties or violate
any of its obligations with respect to confidentiality if NYSE Group or
Euronext, as the case may be, shall have used reasonable best efforts to obtain
the consent of such third party to such inspection or disclosure, (ii) to
disclose any privileged information of NYSE Group or Euronext, as the case may
be, or any of its Subsidiaries, (iii) in the case of NYSE Group, (x) to permit
any inspection, or to disclose any information relating to any regulatory
enforcement, investigations or inquiries conducted by NYSE Group or any of its
Subsidiaries or any other regulatory activities conducted by NYSE Group or any
of its Subsidiaries that the Chief Executive Officer of NYSE Regulation, Inc.
determines, in his or her sole discretion, is confidential and inappropriate to
disclose to Euronext, or (y) to permit any inspection, or to disclose any
information relating to any regulatory enforcement, investigations or inquiries
conducted by New York Stock Exchange LLC or NYSE Arca, Inc. or any other
regulatory activities that the Chief Executive Officer of NYSE Regulation, Inc.
determines, in his or her sole discretion, is confidential and inappropriate to
disclose to Euronext. All requests for information made pursuant to this Section
7.5 shall be directed to an executive officer of NYSE Group or Euronext, as the
case may be, or such Person as may be designated by either of their executive
officers, as the case may be, with a copy to the General Counsel of such party.
All such information shall be governed by the terms of the Confidentiality
Agreement.
Section 7.6. AFFILIATES.
(a) Not later than thirty days from the date hereof, NYSE Group shall
provide to Euronext a list of those Persons who, as of such date, may be deemed
to be "affiliates" of NYSE Group for purposes of Rule 145 under the Securities
Act. Not less than 10 days prior to the NYSE Group Meeting Date, NYSE Group
shall update and add to such list the names of any other Person subsequently
identified by NYSE Group as a Person who may be deemed to be such an affiliate
of NYSE Group as of the NYSE Group Meeting Date. NYSE Group shall keep such list
updated as necessary to reflect changes from the NYSE Group Meeting Date and
shall use reasonable best efforts to cause each person identified on such list
to deliver to Holdco not less than 30 days prior to the Effective Time, a
customary "affiliates" letter, dated as of the Closing Date, in form and
substance satisfactory to NYSE Group and Euronext (the "AFFILIATES LETTER").
(b) Not later than thirty days from the date hereof, Euronext shall
provide to NYSE Group a list of those Persons who, as of such date, may be
deemed to be "affiliates" of Euronext for purposes of Rule 145 under the
Securities Act. Not less than 10 days prior to the Euronext Meeting Date and not
less than 10 days prior to the commencement of the Offer, Euronext shall update
and add to such list the names of any other Person subsequently identified by
Euronext as a Person who may be deemed to be such an affiliate of Euronext as of
the Euronext Meeting Date and the Expiration Date, respectively. Euronext shall
keep such list updated as necessary to reflect changes from
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the Euronext Meeting Date and the Expiration Date and shall use reasonable best
efforts to cause each person identified on such list to deliver an Affiliates
Letter to Holdco not less than 30 days prior to the Effective Time.
Section 7.7. EXCHANGE LISTING. NYSE Group and Euronext shall use their
reasonable best efforts to cause the shares of Holdco Common Stock to be issued
in the Offer and the Merger pursuant to this Agreement and the shares of Holdco
Common Stock to be reserved for issuance upon exercise of the Holdco Stock
Options to be approved for listing on the New York Stock Exchange and Euronext
Paris, subject to official notice of issuance, prior to the Closing Date.
Section 7.8. PUBLICITY. The initial press release regarding this
Agreement and the Offer and the Merger shall be a joint press release and
thereafter NYSE Group and Euronext shall use reasonable best efforts to develop
a joint communications plan and each party shall use reasonable best efforts to
ensure that all press releases and other public statements with respect to the
transactions contemplated hereby shall be consistent with such joint
communications plan. Unless otherwise required by applicable Law or by
obligations pursuant to any listing agreement with or rules of any securities
exchange, each party shall consult with each other before issuing any press
release or public statement with respect to the transactions contemplated by
this Agreement and shall not issue any such press release or public statement
prior to such consultation. In addition to the foregoing, except to the extent
disclosed in or consistent with the Offer Document and the S-4 Prospectuses,
neither NYSE Group nor Euronext shall issue any press release or otherwise make
any public statement or disclosure concerning the other party or the other
party's business, financial condition or results of operations without the
consent of the other party, which consent shall not be unreasonably withheld or
delayed.
Section 7.9. TAXATION. Subject to Section 7.2, neither Euronext nor
NYSE Group shall take or cause to be taken any action, whether before or after
the Effective Time, that would prevent or impede, or would be reasonably likely
to prevent or impede, the Merger from qualifying as a "reorganization" within
the meaning of Section 368(a) of the Code.
Section 7.10. EXPENSES. Subject to Sections 7.2 and 9.6, whether or
not the Offer or the Merger is consummated, all Expenses incurred in connection
with this Agreement and the transactions contemplated hereby shall be paid by
the party incurring such Expenses, except Expenses incurred in connection with
(i) the filing, printing and mailing of the Euronext Shareholder Circular, the
S-4 Prospectuses, the Registration Statement and the Offer Documents, (ii) any
required filing with any Governmental Authority or Self-Regulatory Organization
in connection with the transactions contemplated by this Agreement, and (iii)
any commitment fees or other expenses in connection with obtaining financing to
pay all or part of the cash portion of the consideration payable in the Offer,
in each of cases (i), (ii) and (iii), which Expenses shall be shared equally by
NYSE Group and Euronext unless prohibited by applicable Law. As used in this
Agreement, "EXPENSES" includes all out-of-pocket expenses (including all fees
and expenses of counsel, accountants, investment bankers, experts and
consultants to a
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party hereto and its affiliates) incurred by a party or on its behalf in
connection with or related to the authorization, preparation, negotiation,
execution and performance of this Agreement and the transactions contemplated
hereby, including the preparation, printing, filing and mailing of the Offer
Documents and the solicitation of stockholder approvals and all other matters
related to the transactions contemplated hereby and thereby.
Section 7.11. INDEMNIFICATION; DIRECTORS' AND OFFICERS' INSURANCE.
(a) From and after the Effective Time, Holdco shall (i) indemnify and
hold harmless, and provide advancement of expenses to, all past and present
directors, officers and employees of NYSE Group and its Subsidiaries (in all of
their capacities) (A) to the same extent such persons are indemnified or have
the right to advancement of expenses as of the date of this Agreement by NYSE
Group pursuant to the NYSE Group Organizational Documents and indemnification
agreements, if any, in existence on the date hereof with any directors, officers
and employees of NYSE Group and its Subsidiaries and (B) without limitation to
clause (A), to the fullest extent permitted by law, in each case for acts or
omissions occurring at or prior to the Effective Time (including for acts or
omissions occurring in connection with the approval of this Agreement and the
consummation of the transactions contemplated hereby), (ii) include and cause to
be maintained in effect in Holdco's (or any successor's) certificate of
incorporation and bylaws after the Effective Time, provisions regarding
elimination of liability of directors, indemnification of officers, directors
and employees and advancement of expenses which are, in the aggregate, no less
advantageous to the intended beneficiaries than the corresponding provisions
contained in the current certificate of incorporation and constitution of NYSE
Group and (iii) cause to be maintained for a period of six years after the
Effective Time the current policies of directors' and officers' liability
insurance and fiduciary liability insurance maintained by NYSE Group (provided
that Holdco (or any successor) may substitute therefor one or more policies of
at least the same coverage and amounts containing terms and conditions which
are, in the aggregate, no less advantageous to the insured) with respect to
claims arising from facts or events that occurred on or before the Effective
Time; PROVIDED, HOWEVER, that in no event shall Holdco be required to expend in
any one year an amount in excess of 250% of the annual premiums (such 250%
amount, the "MAXIMUM NYSE GROUP INSURANCE AMOUNT") currently paid by NYSE Group
for such insurance; and, PROVIDED, FURTHER, that if the annual premiums of such
insurance coverage exceed such amount, Holdco shall be obligated to obtain a
policy with the greatest coverage available for a cost not exceeding such
amount. Holdco may, in lieu of maintaining the insurance described in clause
(iii) of Section 7.11(a), purchase a six-year "tail" prepaid policy on terms and
conditions no less advantageous to the insured than the current directors' and
officers' liability insurance and fiduciary liability insurance maintained by
NYSE Group; PROVIDED that the amount paid by Holdco shall not exceed six times
the Maximum NYSE Group Insurance Amount. The obligations of Holdco under this
Section 7.11(a) shall not be terminated or modified in such a manner as to
adversely affect any indemnitee to whom this Section 7.11(a) applies without the
consent of such affected indemnitee (it being expressly agreed that the
indemnities to whom this Section 7.11(a) applies shall be third party
beneficiaries of this Section 7.11(a)).
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(b) From and after the Effective Time, Holdco shall (i) indemnify and
hold harmless, and provide advancement of expenses to, all past and present
directors, officers and employees of Euronext and its Subsidiaries (in all of
their capacities) (A) to the same extent such persons are indemnified or have
the right to advancement of expenses as of the date of this Agreement by
Euronext pursuant to the Euronext Organizational Documents and indemnification
agreements, if any, in existence on the date hereof with any directors, officers
and employees of Euronext and its Subsidiaries and (B) without limitation to
clause (A), to the fullest extent permitted by law, in each case for acts or
omissions occurring at or prior to the Effective Time (including for acts or
omissions occurring in connection with the approval of this Agreement and the
consummation of the transactions contemplated hereby), (ii) include and cause to
be maintained in effect in Holdco's (or any successor's) certificate of
incorporation and bylaws after the Effective Time, provisions regarding
elimination of liability of directors, indemnification of officers, directors
and employees and advancement of expenses which are, in the aggregate, no less
advantageous to the intended beneficiaries than the corresponding provisions
contained in the current certificate of incorporation and bylaws of Euronext and
(iii) cause to be maintained for a period of six years after the Effective Time
the current policies of directors' and officers' liability insurance and
fiduciary liability insurance maintained by Euronext (provided that Holdco (or
any successor) may substitute therefor one or more policies of at least the same
coverage and amounts containing terms and conditions which are, in the
aggregate, no less advantageous to the insured) with respect to claims arising
from facts or events that occurred on or before the Effective Time; PROVIDED,
HOWEVER, that in no event shall Holdco be required to expend in any one year an
amount in excess of 250% of the annual premiums (such 250% amount, the "MAXIMUM
EURONEXT INSURANCE AMOUNT") currently paid by Euronext for such insurance (which
annual premiums are set forth in Section 7.11(b) of the Euronext Disclosure
Letter); and, PROVIDED, FURTHER, that if the annual premiums of such insurance
coverage exceed such amount, Holdco shall be obligated to obtain a policy with
the greatest coverage available for a cost not exceeding such amount. Holdco
may, in lieu of maintaining the insurance described in clause (iii) of Section
7.11(b), purchase a six-year "tail" prepaid policy on terms and conditions no
less advantageous to the insured than the current directors' and officers'
liability insurance and fiduciary liability insurance maintained by Euronext;
PROVIDED that the amount paid by Holdco shall not exceed six times the Maximum
Euronext Insurance Amount. The obligations of Holdco under this Section 7.11(b)
shall not be terminated or modified in such a manner as to adversely affect any
indemnitee to whom this Section 7.11(b) applies without the consent of such
affected indemnitee (it being expressly agreed that the indemnitees to whom this
Section 7.11(b) applies shall be third party beneficiaries of this Section
7.11(b)).
Section 7.12. OTHER ACTIONS BY NYSE GROUP AND EURONEXT.
(a) SECTION 16 MATTERS. Prior to the Effective Time, NYSE Group and
Euronext shall take all such steps as may be required to cause any dispositions
of NYSE Group Common Stock and Euronext Shares (including derivative securities
with respect to NYSE Group Common Stock or Euronext Shares) or acquisitions of
Holdco Common Stock (including derivative securities with respect to Holdco
Common Stock) resulting
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from the transactions contemplated by this Agreement by each individual who is
subject to the reporting requirements of Section 16(a) of the Exchange Act with
respect to NYSE Group and Euronext, to be exempt under Rule 16b-3 promulgated
under the Exchange Act.
(b) ADVICE OF CHANGES. Until the earlier of the Effective Time and the
termination of this Agreement in accordance with its terms, (i) NYSE Group shall
promptly advise Euronext of any change or event that it believes would or would
reasonably be likely to cause or constitute a Material Adverse Effect on NYSE
Group; and (ii) Euronext shall promptly advise NYSE Group of any change or event
that it believes would or would reasonably be likely to cause or constitute a
Material Adverse Effect on Euronext; PROVIDED that failure to so promptly advise
shall not constitute a material breach or failure of a condition unless the
underlying change or event shall constitute such material breach or failure.
ARTICLE VIII
CONDITIONS TO THE MERGER
Section 8.1. CONDITION TO NYSE GROUP'S OBLIGATION TO EFFECT THE
MERGER. NYSE Group's obligation to effect the Merger is subject to the
satisfaction (or waiver by NYSE Group) at or prior to the Effective Time of the
settlement and delivery of the shares tendered into the Initial Offering Period
of the Offer.
ARTICLE IX
TERMINATION
Section 9.1. TERMINATION BY MUTUAL CONSENT. This Agreement may be
terminated by mutual written consent of NYSE Group and Euronext at any time
prior to the filing of the Offer with the AMF.
Section 9.2. TERMINATION BY EITHER EURONEXT OR NYSE GROUP. This
Agreement may be terminated by either NYSE Group or Euronext at any time prior
to the filing of the Offer with the AMF if:
(a) the filing of the Offer with the AMF shall not have occurred by
February 28, 2007 (such date, as it may be extended under the proviso below, the
"TERMINATION DATE"), whether such date is before or after the date of the
receipt of the NYSE Group Requisite Vote; PROVIDED, HOWEVER, that each of NYSE
Group and Euronext shall have the right, in its sole discretion, to extend the
Termination Date to April 30, 2007 if the only conditions set forth in ANNEX II
that have not been satisfied (other than those conditions that by their nature
are to be satisfied on the date of the filing or commencement of the Offer or
those conditions that NYSE Group and Euronext have mutually agreed to waive (if
and to the extent that such waiver is permitted by the GRAMF)) are the
conditions set forth in paragraphs I.(a) and/or I.(f) of ANNEX II; PROVIDED,
FURTHER, that no
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such right to extend the Termination Date may be exercised by any party to this
Agreement whose failure or whose Subsidiary's failure to perform any material
covenant or obligation under this Agreement has been the cause of, or resulted
in, the failure of such condition to be satisfied;
(b) the NYSE Group Requisite Vote shall not have been obtained after a
vote of the NYSE Group stockholders has been taken and completed at the NYSE
Group Stockholders Meeting or at any adjournment or postponement thereof;
(c) the Euronext Requisite Vote shall not have been obtained after a
vote of the Euronext stockholders has been taken and completed at the Euronext
Stockholders Meeting or at any adjournment or postponement thereof; or
(d) any Governmental Entity or Self-Regulatory Organization (if
applicable), which must grant a required regulatory approval has denied such
grant, whether orally or in writing, and such denial has become final, binding
and non-appealable or any Order permanently restraining, enjoining or otherwise
prohibiting consummation of the Merger shall become final and non-appealable
(whether before or after the approval by NYSE Group stockholders);
PROVIDED that the right to terminate this Agreement pursuant to clause (a) above
shall not be available to any party that has breached in any material respect
its obligations under this Agreement in any manner that shall have proximately
contributed to the occurrence of the failure of the Merger to be consummated.
Section 9.3. TERMINATION BY NYSE GROUP. This Agreement may be
terminated by NYSE Group at any time prior to the filing of the Offer with the
AMF if:
(a) either Euronext Board shall have effected a Change in Euronext
Recommendation or failed to reconfirm its recommendation of this Agreement
within ten business days after a written request by NYSE Group to do so;
(b) Euronext shall have (x) breached in any material respect any of
its representations or warranties contained in this Agreement or (y) failed to
perform in any material respect any of its covenants or agreements contained in
this Agreement, which breach or failure to perform would cause any condition in
paragraph II.(a) or II.(b) of ANNEX II to be unsatisfied and (i) is not curable
or (ii) if curable, is not cured prior to the earlier of (A) the business day
prior to the Termination Date or (B) the date that is 30 days after the date
that written notice thereof is given by NYSE Group to Euronext; or
(c) Euronext or any of the other Persons described in Section 7.2 as
affiliates, agents or Representatives of Euronext shall breach Section 7.2 in
any material respect.
Section 9.4. TERMINATION BY EURONEXT. This Agreement may be terminated
by Euronext at any time prior to the filing of the Offer with the AMF if:
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(a) the Board of Directors of NYSE Group shall have effected a Change
in NYSE Group Recommendation or failed to reconfirm its recommendation of this
Agreement within ten business days after a written request by Euronext to do so;
(b) NYSE Group shall have (x) breached in any material respect any of
its representations or warranties contained in this Agreement or (y) failed to
perform in any material respect any of its covenants or agreements contained in
this Agreement, which breach or failure to perform would cause any condition in
paragraph III.(a) or III.(b) of ANNEX II to be unsatisfied and (i) is not
curable or (ii) if curable, is not cured prior to the earlier of (A) the
business day prior to the Termination Date or (B) the date that is 30 days after
the date that written notice thereof is given by Euronext to NYSE Group; or
(c) NYSE Group or any of the other Persons described in Section 7.2 as
affiliates, agents or Representatives of NYSE Group shall breach Section 7.2 in
any material respect.
Section 9.5. CERTAIN ADDITIONAL TERMINATION RIGHTS.
(a) This Agreement may be terminated by NYSE Group or Euronext at any
time after the filing of the Offer with the AMF if the Offer period shall have
expired, and the Minimum Condition shall not have been satisfied.
(b) This Agreement may be terminated by NYSE Group at any time after
the filing of the Offer with the AMF if:
(i) Holdco withdraws its Offer in accordance with paragraph 2 of
Article 232-11 of the GRAMF (it being provided, for the avoidance of doubt,
that such withdrawal shall require that approval of the AMF but not that of
Euronext); or
(ii) (x) a third party has launched a competing bid (or an improved
offer after previously launching a competing bid) for the Euronext Shares
and Holdco has determined to exercise its right of withdrawal pursuant to
paragraph 1 of Article 232-11 of the GRAMF; and (y) Euronext shall have
made a Change in Euronext Recommendation or taken any of the actions
referred to in paragraph II.(c) of ANNEX II.
Section 9.6. EFFECT OF TERMINATION AND ABANDONMENT; EXPENSE
REIMBURSEMENT.
(a) EFFECT OF TERMINATION AND ABANDONMENT. In the event of termination
of this Agreement pursuant to this Article IX, this Agreement (other than as set
forth in this Section 9.6 and Section 10.1) shall become void and of no effect
with no liability on the part of any party hereto (or of any of its directors,
officers, employees, agents, legal and financial advisors or other
representatives); PROVIDED, HOWEVER, that, except as otherwise provided herein,
no such termination shall relieve any party hereto of any liability or damages
resulting from any willful or intentional breach of this Agreement.
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(b) EXPENSE REIMBURSEMENT BY NYSE GROUP.
(i) In the event that this Agreement is terminated by NYSE Group
pursuant to Section 9.2(a) and, at such time, Euronext would have been
permitted to terminate this Agreement pursuant to Section 9.4(a), then NYSE
Group shall, prior to such termination, reimburse Euronext for all of its
out-of-pocket costs, fees and expenses incurred in connection with the
transactions contemplated by this Agreement (the "NYSE GROUP REIMBURSEMENT
PAYMENT"), by wire transfer of same day funds.
(ii) In the event that this Agreement is terminated by Euronext
pursuant to Section 9.2(b) or 9.4(a), then NYSE Group shall promptly, but
in no event later than two days after the date of such termination, pay
Euronext the NYSE Group Reimbursement Payment by wire transfer of same day
funds.
(iii) In the event that an Acquisition Proposal shall have been made
(and not subsequently withdrawn) to NYSE Group or any of its Subsidiaries
or any Person shall have publicly announced (and not subsequently
withdrawn) a bona fide intention (whether or not conditional) to make an
Acquisition Proposal with respect to NYSE Group or any of its Subsidiaries
and thereafter this Agreement is terminated by Euronext pursuant to Section
9.4(b)(y) or 9.4(c), then NYSE Group shall promptly, but in no event later
than two days after the date of such termination, pay the NYSE Group
Reimbursement Payment to Euronext.
(c) EXPENSE REIMBURSEMENT BY EURONEXT.
(i) In the event that this Agreement is terminated by Euronext
pursuant to Section 9.2(a) and, at such time, NYSE Group would have been
permitted to terminate this Agreement pursuant to Section 9.3(a), then
Euronext shall, prior to such termination, reimburse NYSE Group for all of
its out-of-pocket costs, fees and expenses incurred in connection with the
transactions contemplated by this Agreement (the "EURONEXT REIMBURSEMENT
PAYMENT"), by wire transfer of same day funds.
(ii) In the event that this Agreement is terminated by NYSE Group
pursuant to Section 9.2(c), 9.3(a), 9.5(a), 9.5(b)(i) or 9.5(b)(ii), then
Euronext shall promptly, but in no event later than two days after the date
of such termination, pay NYSE Group the Euronext Reimbursement Payment by
wire transfer of same day funds.
(iii) In the event that an Acquisition Proposal shall have been made
(and not subsequently withdrawn) to Euronext or any of its Subsidiaries or
any Person shall have publicly announced (and not subsequently withdrawn) a
bona fide intention (whether or not conditional) to make an Acquisition
Proposal with respect to Euronext or any of its Subsidiaries and thereafter
this Agreement is terminated by NYSE Group pursuant to Section 9.3(b)(y) or
9.3(c); then Euronext shall
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promptly, but in no event later than two days after the date of such
termination, pay the Euronext Reimbursement Payment to NYSE Group.
(d) INTEREST. Each of NYSE Group and Euronext acknowledges that the
agreements contained in this Section 9.6 are an integral part of the
transactions contemplated by this Agreement, and that, without these agreements,
the other party would not enter into this Agreement; accordingly, if either
party fails to promptly pay the amount due pursuant to this Section 9.6, and, in
order to obtain such payment, the other party commences a suit that results in a
judgment against such party for the payment set forth in this Section 9.6 or any
portion of such payment, such party shall pay the other party its costs and
expenses (including attorneys' fees) in connection with such suit, together with
interest on the amount of the payment at the prime rate of Citibank, N.A. in
effect on the date such payment was required to be paid, from the date on which
such payment was required through the date of actual payment.
ARTICLE X
MISCELLANEOUS AND GENERAL
Section 10.1. SURVIVAL. This Article X and the agreements of NYSE
Group and Euronext contained in Section 7.7 (Exchange Listing) and Section 7.11
(Indemnification; Directors' and Officers' Insurance) shall survive the
consummation of the Merger. This Article X, the agreements of NYSE Group and
Euronext contained in Section 7.10 (Expenses), Section 9.6 (Effect of
Termination and Abandonment; Expense Reimbursement) and the Confidentiality
Agreement shall survive the termination of this Agreement. No other
representations, warranties, covenants and agreements in this Agreement shall
survive the consummation of the Merger or the termination of this Agreement. For
the avoidance of doubt, the Original Combination Agreement is amended and
restated in its entirety to read as set forth herein and shall not survive the
execution and delivery of this Agreement; PROVIDED that a breach by any party to
the Original Combination Agreement of any representation, warranty, covenant or
agreement made by such party in the Original Combination Agreement that occurred
prior to the Execution Date shall survive the execution and delivery of this
Agreement for purposes of any rights or remedies that may be available to the
applicable party under this Agreement.
Section 10.2. MODIFICATION OR AMENDMENT. Subject to the provisions of
applicable Law, and except as otherwise provided in this Agreement, this
Agreement may be amended, modified or supplemented (a) only by a written
instrument executed and delivered by all of the parties hereto, (b) by action
taken or authorized by their respective Boards of Directors, and (c) before or
after approval of the matters presented in connection with the Offer and the
Merger by NYSE Group stockholders, but, after any such approval, no amendment
shall be made which by Law or in accordance with the rules of any relevant stock
exchange requires further approval by such stockholders without such further
approval.
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Section 10.3. WAIVER OF CONDITIONS. The conditions to each of the
parties' obligations to consummate the Merger and the Offer are for the sole
benefit of such party and may be waived by such party in whole or in part to the
extent permitted by applicable Law.
Section 10.4. COUNTERPARTS. This Agreement may be executed in any
number of separate counterparts, each such counterpart being deemed to be an
original instrument, and all such counterparts shall together constitute the
same agreement.
Section 10.5. GOVERNING LAW AND VENUE; WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN, AND IN ALL RESPECTS
SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE LAW
OF, THE STATE OF DELAWARE WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES
THEREOF.
(b) The parties hereby (i) irrevocably submit to the exclusive
jurisdiction of the courts of the State of Delaware (the "DELAWARE COURTS") and
the Federal Courts of the United States of America located in the State of
Delaware (the "FEDERAL COURTS") in respect of any claim, dispute or controversy
relating to or arising out of the negotiation, interpretation or enforcement of
this Agreement or any of the documents referred to in this Agreement or the
transactions contemplated hereby or thereby (any such claim being a "COVERED
CLAIM"); (ii) irrevocably agree to request that the Delaware or Federal Courts
adjudicate any Covered Claim on an expedited basis and to cooperate with each
other to assure that an expedited resolution of any such dispute is achieved;
(iii) waive, and agree not to assert, as a defense in any action, suit or
proceeding raising a Covered Claim that any of the parties hereto is not subject
to the personal jurisdiction of the Delaware or Federal Courts or that such
action, suit or proceeding may not be brought or is not maintainable in said
Courts or that the venue thereof may be inappropriate or inconvenient or that
this Agreement or any such document may not be enforced in or by such Courts;
and (iv) irrevocably agree to abide by the rules of procedure applied by the
Delaware or Federal Court (as the case the may be) (including but not limited to
procedures for expedited pre-trial discovery) and waive any objection to any
such procedure on the ground that such procedure would not be permitted in the
courts of some other jurisdiction or would be contrary to the laws of some other
jurisdiction. The parties further agree that any Covered Claim has a significant
connection with the State of Delaware and with the United States, and will not
contend otherwise in any proceeding in any court of any other jurisdiction. Each
party represents that it has agreed to the jurisdiction of the Delaware and
Federal Courts in respect of Covered Claims after being fully and adequately
advised by legal counsel of its own choice concerning the procedures and law
applied in the Delaware and Federal Courts and has not relied on any
representation by any other party or its Affiliates, representatives or advisors
as to the content, scope, or effect of such procedures and law, and will not
contend otherwise in any proceeding in any court of any jurisdiction.
Notwithstanding the foregoing, nothing in this
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Agreement shall limit the right of NYSE Group, Holdco or any of their respective
Subsidiaries or affiliates to commence or prosecute any legal action against
Euronext or any of its Subsidiaries or affiliates in any court of competent
jurisdiction in France, The Netherlands, or elsewhere to enforce the judgments
and orders of the Delaware or Federal Courts.
(c) Each party hereby irrevocably agrees that it will not oppose, on
any ground, the recognition, enforcement, or exequatur in a French, Dutch or
other court of any judgment (including but not limited to a judgment requiring
specific performance) rendered by a Delaware or Federal Court in respect of a
Covered Claim.
(d) Euronext hereby irrevocably designates Liffe USA Limited (in such
capacity the "PROCESS AGENT"), with an office at 00 Xxxxxxxx, Xxxxx 0000, Xxx
Xxxx, Xxx Xxxx 00000, as its designee, appointee and agent to receive, for and
on its behalf service of process in such jurisdiction in any legal action or
proceedings with respect to this Agreement or any other agreement executed in
connection with this Agreement, and such service shall be deemed complete upon
delivery thereof to the Process Agent; PROVIDED that, in the case of any such
service upon the Process Agent, the party effecting such service shall also
deliver a copy thereof to Euronext. Euronext shall take all such action as may
be necessary to continue said appointment in full force and effect or to appoint
another agent so that Euronext will at all times have an agent for service of
process for the above purposes in New York, New York. In the event of the
transfer of all or substantially all of the assets and business of the Process
Agent to any other person or entity by consolidation, merger, sale of assets or
otherwise, such other person or entity shall be substituted hereunder for the
Process Agent with the same effect as if named herein in place of such Process
Agent. Euronext further irrevocably consents to the service of process out of
any of the aforementioned courts in any such action or proceeding by the mailing
of copies thereof by registered airmail, postage prepaid, to such party at its
address set forth in this Agreement, such service of process to be effective
upon acknowledgment of receipt of such registered mail. Nothing herein shall
affect the right of any party to serve process in any other manner permitted by
applicable law. Euronext expressly acknowledges that the foregoing waiver is
intended to be irrevocable under the laws of the State of Delaware and of the
United States of America.
(e) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY
ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT,
OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT: (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER; (ii) EACH PARTY
UNDERSTANDS AND HAS
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CONSIDERED THE IMPLICATIONS OF THIS WAIVER; (iii) EACH PARTY MAKES THIS WAIVER
VOLUNTARILY; AND (iv) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION
10.5.
Section 10.6. NOTICES. Any notice, request, instruction or other
document to be given hereunder by any party to the others shall be in writing
and delivered personally or sent by registered or certified mail, postage
prepaid, or by facsimile:
(a) If to NYSE Group, to:
NYSE Group, Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxx, Esq.
(b) If to Euronext, to:
Euronext N.V.
00 xxx Xxxxxx
X00000 Xxxxx Xxxxx 00
XXXXXX
Attention: General Counsel
with a copy to:
Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
or to such other persons or addresses as may be designated in writing by the
party to receive such notice as provided above.
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Section 10.7. ENTIRE AGREEMENT. This Agreement (including any exhibits
hereto), the NYSE Group Disclosure Letter, the Euronext Disclosure Letter and
the Confidentiality Agreement, dated April 12, 2006, between NYSE Group and
Euronext (the "CONFIDENTIALITY AGREEMENT") constitute the entire agreement, and
supersede all other prior agreements, understandings, representations and
warranties both written and oral, among the parties, with respect to the subject
matter hereof.
Section 10.8. NO THIRD-PARTY BENEFICIARIES. Except as provided in
Section 7.11 (Indemnification; Directors' and Officers' Insurance), this
Agreement is not intended to, and does not, confer upon any Person other than
the parties who are signatories hereto any rights or remedies hereunder. The
parties hereto further agree that the rights of third party beneficiaries under
Section 7.11 shall not arise unless and until the Effective Time occurs.
Section 10.9. OBLIGATIONS OF EURONEXT AND OF NYSE GROUP. Whenever this
Agreement requires a Subsidiary of Holdco, NYSE Group or Euronext to take any
action, such requirement shall be deemed to include an undertaking on the part
of Holdco, NYSE Group or Euronext, as appropriate, to cause such Subsidiary to
take such action.
Section 10.10. TRANSFER TAXES. All transfer, documentary, sales, use,
stamp, registration and other such Taxes and fees (including penalties and
interest) incurred in connection with the Offer or the Merger shall be paid by
the party upon which such Taxes are imposed.
Section 10.11. DEFINITIONS. Each of the terms set forth in ANNEX I is
defined on the page of this Agreement set forth opposite such term.
Section 10.12. SEVERABILITY. The provisions of this Agreement shall be
deemed severable and the invalidity or unenforceability of any provision shall
not affect the validity or enforceability or the other provisions hereof. If any
provision of this Agreement, or the application thereof to any Person or any
circumstance, is invalid or unenforceable, (a) a suitable and equitable
provision shall be substituted therefor in order to carry out, so far as may be
valid and enforceable, the intent and purpose of such invalid or unenforceable
provision and (b) the remainder of this Agreement and the application of such
provision to other Persons or circumstances shall not be affected by such
invalidity or unenforceability, nor shall such invalidity or unenforceability
affect the validity or enforceability of such provision, or the application
thereof, in any other jurisdiction.
Section 10.13. INTERPRETATION; CONSTRUCTION.
(a) The table of contents and headings herein are for convenience of
reference only, do not constitute part of this Agreement and shall not be deemed
to limit or otherwise affect any of the provisions hereof. Where a reference in
this Agreement is made to a Section or Exhibit, such reference shall be to a
Section of or Exhibit to this Agreement unless otherwise indicated. Whenever the
words "include," "includes" or "including" are used in this Agreement, they
shall be deemed to be followed by the words
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"without limitation." The term "knowledge of NYSE Group" shall be deemed to mean
the actual knowledge of the individuals set forth on EXHIBIT C. The term
"knowledge of Euronext" shall be deemed to mean the actual knowledge of the
individuals set forth on EXHIBIT D.
(b) The parties have participated jointly in negotiating and drafting
this Agreement. In the event that an ambiguity or a question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the parties, and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any provision of this
Agreement.
Section 10.14. ASSIGNMENT. This Agreement shall not be assignable by
operation of Law or otherwise. Any purported assignment in violation of this
Agreement shall be void.
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IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the duly authorized officers of the parties hereto as of the date
first written above.
NYSE GROUP, INC.
By: /S/ XXXX X. XXXXX
-------------------------------------
Name: Xxxx X. Xxxxx
Title: Chief Executive Officer
EURONEXT N.V.
By: /S/ XXXX-XXXXXXXX XXXXXXXX
-------------------------------------
Name: Xxxx-Xxxxxxxx Xxxxxxxx
Title: Chief Executive Officer
By: /S/ XXXXXXX XXXXXXXX
-------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Chief Financial Officer
NYSE EURONEXT, INC.
By: /S/ XXXX X. XXXXX
-------------------------------------
Name: Xxxx X. Xxxxx
Title: Chief Executive Officer
JEFFERSON MERGER SUB, INC.
By: /S/ XXXX X. XXXXX
-------------------------------------
Name: Xxxx X. Xxxxx
Title: Chief Executive Officer
[Signature Page to Amended and Restated Combination Agreement]
ANNEX I:
DEFINED TERMS
DEFINED TERM PAGE
Acquisition Proposal........................................................47
Affiliates Letter...........................................................54
Agreement....................................................................1
AMF..........................................................................3
Bankruptcy and Equity Exception.............................................26
Board.......................................................................48
Book-Entry Interests........................................................10
Cash Election................................................................4
Cash Election Amount.........................................................4
Cash Election Consideration..................................................4
Cash Election Shares.........................................................5
Cash Percentage..............................................................4
CBFA.........................................................................3
Certificate of Merger.......................................................10
Change in Euronext Recommendation...........................................50
Change in NYSE Group Recommendation.........................................50
Closing......................................................................9
Closing Date.................................................................9
Code.........................................................................2
College of Regulators.......................................................21
Confidentiality Agreement...................................................66
Consents....................................................................51
Contract....................................................................27
Covered Claim...............................................................63
Delaware Courts.............................................................63
DGCL.........................................................................9
Dutch Holdco................................................................15
Dutch Mergerco..............................................................16
Effective Time..............................................................10
Equity Arrangements.........................................................18
Euronext.....................................................................1
Euronext Benefit Plans......................................................40
Euronext Boards..............................................................2
Euronext Disclosure Letter..................................................34
Euronext Intellectual Property..............................................42
Euronext Intellectual Property Contracts....................................42
Euronext Meeting Date.......................................................50
Euronext Organizational Documents...........................................35
Annex I: Page 1
Euronext Recommendation......................................................9
Euronext Reimbursement Payment..............................................61
Euronext Reports............................................................38
Euronext Requisite Vote.....................................................50
Euronext Shareholder Circular...............................................50
Euronext Shares..............................................................1
Euronext Stock Option.......................................................17
Euronext Stock Plans........................................................17
Euronext Stock-Based Award..................................................17
Euronext Stockholders Meeting...............................................50
Euronext Sub................................................................15
Euronext Subsidiary Organizational Documents................................35
Euronext Superior Proposal Notice...........................................48
European Exchange Offer Documents............................................7
European Regulator..........................................................21
Exchange Act................................................................27
Exchange Agent..............................................................12
Exchange Fund...............................................................12
Excluded Share..............................................................10
Execution Date...............................................................1
Expenses....................................................................55
Expiration Time..............................................................5
Federal Courts..............................................................63
French Holders..............................................................18
French Taxes................................................................18
Fully Diluted Basis..........................................................6
GAAP........................................................................28
Governmental Approvals......................................................27
Governmental Entity.........................................................27
GRAMF........................................................................3
Gross-Up Payment............................................................19
Holdco.......................................................................1
Holdco Common Stock..........................................................1
Holdco Share Registration Document...........................................7
Holdco Stock Option.........................................................17
Holdco Stock-Based Award....................................................17
HSR Act.....................................................................27
IFRS........................................................................38
Initial Offering Period......................................................4
Intellectual Property.......................................................32
IRS Ruling..................................................................31
IT Assets...................................................................34
Joint Ventures..............................................................25
Law.........................................................................28
Major Subsidiary............................................................47
Annex I: Page 2
Material Adverse Effect.....................................................24
Maximum Euronext Insurance Amount...........................................57
Maximum NYSE Group Insurance Amount.........................................56
Merger.......................................................................1
Merger Consideration........................................................10
Merger Sub...................................................................1
Merger Sub Common Stock.....................................................10
Merger Transmittal Letter...................................................12
Minimum Condition............................................................6
Mixed Offer Consideration....................................................3
New Holdco Bylaws...........................................................21
New Holdco Charter..........................................................20
NYSE Group...................................................................1
NYSE Group Benefit Plans....................................................29
NYSE Group Disclosure Letter................................................23
NYSE Group Financial Statements.............................................28
NYSE Group Intellectual Property............................................33
NYSE Group Intellectual Property Contracts..................................33
NYSE Group Meeting Date.....................................................49
NYSE Group Organizational Documents.........................................24
NYSE Group Preferred Stock..................................................25
NYSE Group Reimbursement Payment............................................61
NYSE Group Reports..........................................................27
NYSE Group Requisite Vote...................................................26
NYSE Group Stock Option.....................................................11
NYSE Group Stock Plans......................................................11
NYSE Group Stock-Based Award................................................11
NYSE Group Stockholders Meeting.............................................49
NYSE Group Subsidiary Organizational Documents..............................24
NYSE Group Superior Proposal Notice.........................................48
Offer........................................................................1
Offer Documents..............................................................7
Offering Period..............................................................5
Original Combination Agreement...............................................1
Original Execution Date......................................................1
Permits.....................................................................29
Person......................................................................13
Post-Closing Reorganization.................................................15
Pre-Approved Post-Closing Reorganization....................................15
Pre-Offering Stock Price.....................................................4
Process Agent...............................................................64
Prospectus...................................................................7
Proxy Statement/Prospectus...................................................6
Ratio........................................................................4
Registration Statement.......................................................6
Annex I: Page 3
Representatives.............................................................53
Restricted Share............................................................11
S-4 Prospectuses.............................................................6
SEC..........................................................................6
Securities Act...............................................................7
Self-Regulatory Organization................................................13
Shareholder Circular/Prospectus..............................................6
Special Euronext Distribution................................................1
Standard Cash Amount.........................................................3
Standard Stock Amount........................................................3
Stock Election...............................................................4
Stock Election Amount........................................................4
Stock Election Consideration.................................................4
Stock Election Shares........................................................5
Stock Percentage.............................................................4
Strikes.....................................................................32
Subsequent Offering Period...................................................4
Subsidiary..................................................................24
Substantial Detriment.......................................................51
Superior Proposal...........................................................49
Surviving Corporation........................................................9
Tax Authority...............................................................32
Tax Return..................................................................32
Taxes.......................................................................31
Termination Date............................................................58
U.S. Exchange Offer Documents................................................7
Annex I: Page 4
ANNEX II:
CONDITIONS TO THE FILING AND COMMENCEMENT OF THE OFFER
I. MUTUAL CONDITIONS. Notwithstanding any other provisions
of the Agreement, Holdco shall not file or commence the Offer pursuant to
Article I of the Agreement unless each of the following conditions shall be
satisfied (or waived by both NYSE Group and Euronext, if and to the extent that
such waiver is permitted by the GRAMF):
(a) HSR ACT AND GOVERNMENTAL APPROVALS. (i) Any waiting period
(and any extension thereof) applicable to the Offer and the Merger under
the HSR Act shall have expired or been terminated, and (ii) any waiting
period (and any extension thereof) applicable to the Offer and the Merger
under the Governmental Approvals shall have expired or been terminated.
(b) REGISTRATION STATEMENT AND HOLDCO SHARE REGISTRATION
DOCUMENT. (i) The Registration Statement shall have become effective under
the Securities Act and shall not be the subject of any stop order or
proceeding seeking a stop order; (ii) the Holdco Share Registration
Document shall have been filed with and received the approval of the AMF
and the CBFA; and (iii) any update of the presentation document of Euronext
for purposes of the Offer shall have been furnished to the AMF in
accordance with applicable regulations.
(c) NYSE GROUP REQUISITE VOTE AND EURONEXT REQUISITE VOTE. The
NYSE Group Requisite Vote shall have been obtained at the NYSE Group
Stockholders Meeting, and the Euronext Requisite Vote shall have been
obtained at the Euronext Stockholders Meeting.
(d) EXCHANGE LISTING. The shares of Holdco Common Stock to be
issued in the Offer and the Merger and such other shares of Holdco Common
Stock to be reserved for issuance in connection with the Offer and the
Merger pursuant to this Agreement shall have been authorized for listing on
the New York Stock Exchange and Euronext Paris, upon official notice of
issuance.
(e) GOVERNMENTAL PROCEEDING. There shall not be pending any suit,
action or proceeding by any Governmental Entity (i) challenging the
acquisition by Holdco of any of the Euronext Shares, seeking to restrain or
prohibit the consummation of the Offer or the Merger, or seeking to place
limitations on the ownership of the Euronext Shares or shares of common
stock of the Surviving Corporation by Holdco or seeking to obtain from
Euronext, NYSE Group or Holdco any damages that are material in relation to
Euronext, (ii) seeking to prohibit or materially limit the ownership or
operation by Euronext or its Subsidiaries, NYSE Group or any of its
Subsidiaries of any material portion of any business or of any assets of
Euronext, NYSE Group or any of their respective Subsidiaries, or to compel
Euronext, NYSE Group or any of their respective Subsidiaries to divest or
hold separate any material portion of any business or of any
Annex II: Page 1
assets of Euronext, NYSE Group or any of their respective Subsidiaries, as
a result of the Offer or the Merger or (iii) seeking to prohibit Holdco or
any of its Subsidiaries from effectively controlling in any material
respect the business or operations of Euronext or its Subsidiaries or NYSE
Group or its Subsidiaries except to the extent that NYSE Group is currently
limited in its control of its "Regulated Subsidiaries" (as defined in the
NYSE Group Organizational Documents).
(f) OTHER APPROVALS. (i) No objection shall have been stated by
the AMF pursuant to the provisions of Articles 511-1 and 511-5 of the GRAMF
or by the CBFA pursuant to applicable Belgian regulations; (ii) the SEC
shall have approved the application under Rule 19b-4 of the Exchange Act
submitted by NYSE Group and/or its applicable Subsidiaries in connection
with the transactions contemplated by the Agreement; (iii) the Dutch
Minister of Finance shall have issued a declaration of no objection
pursuant to section 26a of the Dutch Act on the Supervision of the
Securities Business allowing Holdco to acquire the Euronext Shares; (iv)
review and approval of the proposed transaction by the Dutch Minister of
Finance and the AFM pursuant to the formal exchange recognition granted to
Euronext and Euronext Amsterdam N.V. pursuant to Section 22 of the Dutch
Act on the Supervision of the Securities Trade 1995; (v) the French
Minister of Economy shall not have taken any of the steps pursuant to the
provisions of Article 441-1 of the CODE MONETAIRE ET FINANCIER; (vi) the
authorization of the College of Regulators shall have been obtained and
(vii) there shall have been obtained or made all other consents, approvals
and actions of, filings with and notices to any Governmental Entity
required of NYSE Group, Euronext or any of their Subsidiaries to consummate
the Offer and the Merger, the issuance of Holdco Common Stock in the Offer
or the Merger and the other transactions contemplated by the Agreement
(including any necessary amendments to existing exchange licenses and
recognitions), the failure of which to be obtained, made or taken,
individually or in the aggregate, would reasonably be expected to have a
Substantial Detriment to Holdco, NYSE Group or Euronext, and such consents,
approvals and actions shall have been obtained on terms that, individually
or in the aggregate, would not reasonably be expected to have a Substantial
Detriment to Holdco, NYSE Group or Euronext and its Subsidiaries.
II. CONDITIONS WAIVABLE BY NYSE GROUP. Notwithstanding any
other provisions of the Agreement, Holdco shall not file or commence the Offer
pursuant to Article I of the Agreement unless each of the following conditions
shall be satisfied (or waived by NYSE Group):
(a) REPRESENTATIONS AND WARRANTIES. (i) Each of the
representations and warranties of Euronext set forth in Sections 6.2(b)
(Capitalization) and 6.2(c) (Company Authority) of the Agreement shall be
true and correct in all material respects at and as of the date of the
Agreement and at and as of the date of the commencement of the Offer with
the same effect as if made at and as of such date of commencement (or if
such representation expressly speaks as of an earlier date, as of such
earlier date), (ii) each of the other representations and warranties of
Euronext set forth in the Agreement (reading such representations and
warranties without regard to any materiality or Material Adverse
Annex II: Page 2
Effect qualifications contained therein) shall be true and correct in all
respects at and as of the date of the Agreement and at and as of the date
of the commencement of the Offer with the same effect as if made at and as
of such date of commencement (or if such representation expressly speaks as
of an earlier date, as of such earlier date), except where the failure to
be so true and correct, individually or in the aggregate, has not had and
would not reasonably be expected to have a Material Adverse Effect on
Euronext; PROVIDED that, solely for purposes of this clause (ii) and not
for purposes of clause (iii) below, the term "Subsidiaries" in the
representations and warranties of Euronext set forth in Section 6.2(d)
shall be deemed to include Joint Ventures, and (iii) NYSE Group shall have
received a certificate dated as of the date of the commencement of the
Offer, signed on behalf of Euronext by the Chief Executive Officer of
Euronext, certifying the matters set forth in clauses (i) and (ii) of this
paragraph II.(a).
(b) COVENANTS. (i) Euronext shall have performed and complied
with in all material respects each agreement and covenant required to be
performed by it under the Agreement on or prior to the commencement of the
Offer and (ii) NYSE Group shall have received a certificate dated as of the
date of the commencement of the Offer, signed on behalf of Euronext by the
Chief Executive Officer of Euronext, certifying the matters set forth in
clause (i) of this paragraph II.(b).
(c) CHANGE IN RECOMMENDATION. Neither Euronext Board nor any
committee thereof shall have (i) withdrawn, or modified or changed in a
manner adverse to the transactions contemplated by this Agreement, to NYSE
Group or to Holdco, the Euronext Recommendation or shall have failed to
make the Euronext Recommendation, (ii) approved or recommended any
Acquisition Proposal for Euronext or entered into or publicly announced its
intention to enter into any agreement or agreement in principle with
respect to any Acquisition Proposal for Euronext, (iii) resolved to do any
of the foregoing or (iv) taken a neutral position or made no recommendation
with respect to any Acquisition Proposal for Euronext after ten (10)
business days following receipt thereof has elapsed for the Euronext Boards
or any committee thereof to review and make a recommendation with respect
thereto.
(d) SUPPLEMENTAL IRS RULING OR TAX OPINION. NYSE Group shall have
received a supplemental private letter ruling from the IRS or an opinion of
Wachtell, Lipton, Xxxxx & Xxxx, in either case, substantially to the effect
that the consummation of the Offer and the Merger will not adversely affect
the rulings contained in the IRS Ruling.
(e) TAX OPINION. NYSE Group shall have received an opinion of
Wachtell, Lipton, Xxxxx & Xxxx, dated as of the date of the filing of the
Offer with the AMF, on the basis of representations and assumptions set
forth or referred to in such opinion, to the effect that the Merger will be
treated as a reorganization within the meaning of Section 368(a) of the
Code. In rendering such opinion, such counsel may require and rely upon
representations and covenants, including those contained in certificates of
officers of Holdco, NYSE Group, Merger Sub or others requested by counsel.
Annex II: Page 3
III. CONDITIONS WAIVABLE BY EURONEXT. Notwithstanding any
other provisions of the Agreement, Holdco shall not file or commence the Offer
pursuant to Article I of the Agreement unless each of the following conditions
shall be satisfied (or waived by Euronext):
(a) REPRESENTATIONS AND WARRANTIES. (i) Each of the
representations and warranties of NYSE Group set forth in Sections 6.1(b)
(Capitalization) and 6.1(c) (Corporate Authority) of the Agreement shall be
true and correct in all material respects at and as of the date of the
Agreement and at and as of the date of the commencement of the Offer with
the same effect as if made at and as of such date of commencement (or if
such representation expressly speaks as of an earlier date, as of such
earlier date), (ii) each of the other representations and warranties of
NYSE Group set forth in the Agreement (reading such representations and
warranties without regard to any materiality or Material Adverse Effect
qualifications contained therein) shall be true and correct in all respects
at and as of the date of the Agreement and at and as of the date of the
commencement of the Offer with the same effect as if made at and as of such
date of commencement (or if such representation expressly speaks as of an
earlier date, as of such earlier date), except where the failure to be so
true and correct, individually or in the aggregate, has not had and would
not reasonably be expected to have a Material Adverse Effect on NYSE Group,
and (iii) Euronext shall have received a certificate dated as of the date
of the commencement of the Offer, signed on behalf of NYSE Group by the
Chief Executive Officer of NYSE Group, certifying the matters set forth in
clauses (i) and (ii) of this paragraph III.(a).
(b) COVENANTS. (i) NYSE Group shall have performed and complied
with in all material respects each agreement and covenant required to be
performed by it under the Agreement on or prior to the commencement of the
Offer and (ii) Euronext shall have received a certificate dated as of the
date of the commencement of the Offer, signed on behalf of NYSE Group by
the Chief Executive Officer of NYSE Group, certifying the matters set forth
in clause (i) of this paragraph III.(b).
(c) CHANGE IN RECOMMENDATION. Neither the Board of Directors of
NYSE Group nor any committee thereof shall have (i) withdrawn, or modified
or changed in a manner adverse to the transactions contemplated by this
Agreement, to Euronext or to Holdco, the NYSE Group Recommendation or shall
have failed to make the NYSE Group Recommendation, (ii) approved or
recommended any Acquisition Proposal for NYSE Group or entered into or
publicly announced its intention to enter into any agreement or agreement
in principle with respect to any Acquisition Proposal for NYSE Group, (iii)
resolved to do any of the foregoing or (iv) taken a neutral position or
made no recommendation with respect to any Acquisition Proposal for NYSE
Group after ten (10) business days following receipt thereof has elapsed
for the Board of Directors of NYSE Group or any committee thereof to review
and make a recommendation with respect thereto.
Annex II: Page 4
ANNEX III:
CONDITIONS TO THE COMPLETION OF THE OFFER
Notwithstanding any other provisions of the Offer, and in
addition to (and not in limitation of) Holdco's rights to extend and amend the
Offer at any time in its sole discretion (subject to the provisions of the
Agreement), Holdco shall not be required to accept for payment or, subject to
any applicable rules and regulations of the SEC, including Rule 14e-l(c) under
the Exchange Act (relating to Holdco's obligation to pay for or return tendered
Euronext Shares promptly after termination or withdrawal of the Offer), pay for,
and may delay the acceptance for payment of or, subject to the restriction
referred to above, the payment for, any validly tendered Euronext Shares unless
each of the following conditions shall be satisfied (or, in the case of (b),
waived by NYSE Group):
(a) MINIMUM CONDITION. The Minimum Condition shall have been
satisfied.
(b) ARTICLE 232-11 OF THE GRAMF. Holdco shall not have withdrawn
the Offer in accordance with the provisions of (i) Article 232-11 of the
GRAMF and (ii) this Agreement (including, without limitation, Section 9.5).
Annex III: Page 1
