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Exhibit 3.1
AMENDED AND RESTATED
BYLAWS
OF
NYSE EURONEXT
Incorporated under the Laws of the State of Delaware
BYLAWS
OF
NYSE EURONEXT
Incorporated under the Laws of the State of Delaware
Dated as of December 31, 2009June 29, 2010
ARTICLE I.
OFFICES AND RECORDS
Section 1.1. Registered Office. The registered office of NYSE Euronext (the
“Corporation”) in the State of Delaware shall be established and maintained at the office
of The Corporation Trust Company, located at the Corporation Trust Center, 1209 Orange Street,
City of Wilmington, County of New Castle, State of Delaware 19801, and The Corporation Trust
Company shall be the registered agent of the Corporation in charge thereof.
Section 1.2. Other Offices. The Corporation may have such other offices, either
within or without the State of Delaware, at such places as the Board of Directors may from time
to time designate or as the business of the Corporation may from time to time require.
Section 1.3. Books and Records. The books and records of the Corporation may be
kept outside the State of Delaware at such place or places as may from time to time be designated
by the Board of Directors.
ARTICLE II.
STOCKHOLDERS
Section 2.1. Annual Meetings. An annual meeting of stockholders for the election
of directors, and for such other business as may be stated in the notice of the meeting, shall be
held at such place, either within or without the State of Delaware, and at such time and date as
the Board of Directors, by resolution, shall determine and as set forth in the notice of the
meeting. At each annual meeting, the stockholders entitled to vote shall elect a Board of
Directors and they may transact such other corporate business as shall be stated in the notice of
the meeting.
Section 2.2. Special Meetings. Special meetings of stockholders may be called at
any time by, and only by, (1) the Board of Directors acting pursuant to a resolution
adopted by a majority of the directors, (2) the Chairman of the Board of Directors, (3) the
Deputy Chairman of the Board of Directors, (4) the Chief Executive Officer or (5) the Deputy
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Chief Executive Officer, in each case, to be held at such date, time and place either within or
without the State of Delaware as may be stated in the notice of the meeting.
Section 2.3. Notice of Meetings. Written notice, stating the place, day and hour
of the meeting and the general nature of the business to be considered, shall be given to each
stockholder entitled to vote thereat, at his or her address as it appears on the records of the
Corporation, not less than ten (10) days nor more than sixty (60) days before the date of the
meeting, except as otherwise provided herein or required by the Delaware General Corporation Law
(the “DGCL”). If mailed, such notice shall be deemed to have been given when deposited
in the United States mail with postage thereon prepaid, addressed to the stockholder at such
stockholder’s address as it appears on the records of the Corporation. Only such business shall
be conducted at a special meeting of stockholders as shall have been brought before the meeting
pursuant to the Corporation’s notice of meeting. Any previously scheduled meeting of the
stockholders may be postponed, canceled or adjourned by resolution of the Board of Directors at
any time in advance of the date previously scheduled for such meeting.
Section 2.4. Quorum and Adjournment. Except as otherwise provided by law or by
the Certificate of Incorporation of the Corporation (the “Certificate of Incorporation”),
the holders of a majority of the votes entitled to be cast by the holders of all of the
then-outstanding shares of capital stock of the Corporation entitled to vote generally in the
election of directors, represented in person or by proxy, shall constitute a quorum at a meeting
of stockholders, except that when specified business is to be voted on by a class or series of
stock voting as a class, the holders of a majority of the shares of such class or series shall
constitute a quorum of such class or series for the transaction of such business. The chairman
of the meeting or the holders of a majority of the votes so represented may adjourn the meeting
from time to time, whether or not there is such a quorum. No notice of the time and place of
adjourned meetings need be given except as required by law. At any such adjourned meeting at
which the requisite amount of stock entitled to vote shall be represented, any business may be
transacted that might have been transacted at the meeting as originally noticed, but only those
stockholders entitled to vote at the meeting as originally noticed shall be entitled to vote at
any adjournment or adjournments thereof. The stockholders present at a duly called meeting at
which a quorum is present may continue to transact business until adjournment, notwithstanding
the withdrawal of enough stockholders to leave less than a quorum.
Section 2.5. Organization. Meetings of stockholders shall be presided over by
such person or persons as the Board of Directors may have designated or, in the absence of such
person, the Chairman or Deputy Chairman of the Board of Directors, if any, or in the absence of a
Chairman or Deputy Chairman of the Board of Directors by the Chief Executive Officer or Deputy
Chief Executive Officer, or in the absence of a Chief Executive Officer or Deputy Chief Executive
Officer by an Executive Vice President, or in the absence of an Executive Vice President, by a
chairman chosen at the meeting. A Corporate Secretary, or in the absence of a Corporate
Secretary an Assistant Corporate Secretary, shall act as secretary of the meeting, but in the
absence of a Corporate Secretary and any Assistant Corporate
Secretary, the chairman of the meeting may appoint any person to act as secretary of the
meeting.
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The order of business at each such meeting shall be as determined by the chairman of the
meeting. The chairman of the meeting shall have the right and authority to adjourn a meeting of
stockholders without a vote of stockholders and to prescribe such rules, regulations and
procedures and to do all such acts and things as are necessary or desirable for the proper
conduct of the meeting and are not inconsistent with any rules or regulations adopted by the
Board of Directors pursuant to the provisions of the Certificate of Incorporation, including the
establishment of procedures for the maintenance of order and safety, limitations on the time
allotted to questions or comments on the affairs of the Corporation, restrictions on entry to
such meeting after the time prescribed for the commencement thereof and the opening and closing
of the voting polls for each item upon which a vote is to be taken.
Section 2.6. Inspectors of Elections; Opening and Closing the Polls. Prior to
any meeting of stockholders, the Board of Directors, the Chairman of the Board of Directors, the
Deputy Chairman of the Board of Directors, the Chief Executive Officer or the Deputy Chief
Executive Officer or any other officer designated by the Board of Directors shall appoint one or
more inspectors, who shall have the powers and duties set forth in Section 231 of the DGCL as
currently in effect or as the same may hereafter be amended or replaced, which inspectors may
include individuals who serve the Corporation in other capacities, including, without limitation,
as officers, employees, agents or representatives, to act at such meeting and make a written
report thereof and may designate one or more persons as alternate inspectors to replace any
inspector who fails to act. If no inspector or alternate has been appointed to act or is able to
act at a meeting of stockholders, the chairman of the meeting shall appoint one or more
inspectors to act at the meeting. Each inspector, before discharging his or her duties, shall
take and sign an oath faithfully to execute the duties of inspector with strict impartiality and
according to the best of his or her ability. The inspectors shall have the duties prescribed by
law. The chairman of the meeting shall fix and announce at the meeting the date and time of the
opening and the closing of the polls for each matter upon which the stockholders will vote at a
meeting.
Section 2.7. Voting; Proxies. (A) Unless otherwise provided in the
Certificate of Incorporation, each stockholder entitled to vote at any meeting of stockholders
shall be entitled to one vote for each share of stock held by such stockholder which has voting
power upon the matter in question. Each stockholder entitled to vote at a meeting of
stockholders may authorize another person or persons to act for such stockholder by proxy, but no
such proxy shall be voted or acted upon after three years from its date, unless the proxy
provides for a longer period. A duly executed proxy shall be irrevocable if it states that it is
irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to
support an irrevocable power, regardless of whether the interest with which it is coupled is an
interest in the stock itself or an interest in the Corporation generally. A stockholder may
revoke any proxy that is not irrevocable by attending the meeting and voting in person or by
filing an instrument in writing revoking the proxy or another duly executed proxy bearing a later
date with a Corporate Secretary. Voting at meetings of stockholders need not be by written
ballot unless so directed by the chairman of the meeting or the Board of Directors.
(B) Except as otherwise provided in this Section 2.7, and subjectSubject to Section
3.2 of these Bylaws (unless such Section is suspended or has become void and of no force and effect
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as provided for under Section 10.11 of these Bylaws), directors shall be elected by
a plurality of the votes of the shares present in person or represented by proxy at the meeting
and entitled to vote on the election of directors. each director shall be elected by the
vote of the majority of the votes cast with respect to that director’s election at any meeting for
the election of directors at which a quorum is present, provided that if, as of the last date by
which stockholders of the Corporation may submit notice to nominate a person for election as a
director pursuant to Section 2.10 of these Bylaws or pursuant to any rule or regulation of the SEC,
the number of nominees exceeds the number of directors to be elected (a “Contested Election”), the
directors shall be elected by the vote of a plurality of the votes cast. For
purposes of this Section 2.7, a majority of votes cast shall mean that the number of votes cast
“for” a director’s election exceeds the number of votes cast “against” that director’s
election (with “abstentions” not counted as a vote cast either “for” or “against” that
director’s election). In all other matters, unless otherwise required by law, the Certificate
of Incorporation or these Bylaws, a majority of the votes cast for or against the matter at the
meeting by stockholders entitled to vote on the subject matter shall be the act of the
stockholders. Where a separate vote by class or classes is required, the affirmative vote of the
holders of a majority (or, in the case of an election of directors a Contested Election, a plurality) of the votes
cast for or against the matter at the meeting by stockholders in that class or classes entitled to
vote on the subject matter shall be the act of such class or classes, except as otherwise required
by law, the Certificate of Incorporation or these Bylaws.
(C) In the event an incumbent director fails to receive a majority of the votes
cast in an election that is not a Contested Election, such director shall tender his or her
resignation to the Nominating and Governance Committee of the Board of Directors, or such other
committee designated by the Board of Directors pursuant to Section 4.1 of these Bylaws, and such
Committee shall make a recommendation to the Board of Directors as to whether to accept or reject
the resignation of such incumbent director, or whether other action should be taken. The Board of
Directors shall act on the recommendation of such Committee, and publicly disclose (by a press
release and filing an appropriate disclosure with the SEC) its decision regarding the tendered
resignation and the rationale behind the decision promptly and in any event within 90 days
following certification of the election results. Any director who tenders his or her resignation
pursuant to this Section 2.7(c) shall not participate in the Nominating and Governance Committee
recommendation or Board of Directors action regarding whether to accept the tendered resignation.
If each member of the Nominating and Governance Committee fails to receive a majority of the votes
cast in the same election (that is not a Contested Election), then the independent directors who
received a majority of the votes cast in such election shall appoint a committee among themselves
to consider the tendered resignation and recommend to the Board of Directors whether to accept it.
However, if the only directors who received a majority of the votes cast in such election
constitute three or fewer directors, all directors may participate in the action regarding whether
to accept the tendered resignation.
(D) If the Board of Directors accepts a director’s resignation pursuant to this Section
2.7, or if a nominee for director is not elected and the nominee is not an incumbent director,
then the Board of Directors may fill the resulting vacancy pursuant to Section 3.6 of these
Bylaws and Article VI, Section 6 of the Certificate of Incorporation or may decrease the size of
the Board of Directors pursuant to the provisions of Section 3.1 of these Bylaws and Article VI,
Section 3 of the Certificate of Incorporation.
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(A) Annual Meetings of Stockholders.
(1) Nominations of persons for election to the Board of Directors of the Corporation
and the proposal of business to be considered by the stockholders may be made at an annual
meeting of stockholders (a) pursuant to the Corporation’s notice of meeting, (b) by or at
the direction of the Board of Directors or (c) by any stockholder of the Corporation who was
a stockholder of record at the time of giving of notice provided for in this Section 2.10,
who is entitled to vote at the meeting and who complies with the notice procedures set forth
in this Section 2.10.
(2) For nominations or other business to be properly brought before an annual meeting
by a stockholder pursuant to clause (c) of paragraph (A)(1) of this Section
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2.10, the stockholder must have given timely notice thereof in writing to the Secretary
of the Corporation and such other business must otherwise be a proper matter for stockholder
action. For nominations, such notice must include the documentation necessary to determine
whether the nominee is a U.S. Person or a European Person as of the date of such notice. To
be timely, a stockholder’s notice shall be delivered to the Secretary at the principal
executive offices of the Corporation not later than the close of business on the 90th day
nor earlier than the close of business on the 120th day prior to the first anniversary of
the preceding year’s annual meeting; provided, however, that in the event that the date of
the annual meeting is more than 30 days before or more than 60 days after such anniversary
date, notice by the stockholder to be timely must be so delivered not earlier than the close
of business on the 120th day prior to such annual meeting and not later than the close of
business on the later of the 90th day prior to such annual meeting or the 10th day following
the day on which public announcement of the date of such meeting is first made by the
Corporation. In no event shall the public announcement of an adjournment of an annual
meeting commence a new time period for the giving of a stockholder’s notice as described
above. Such stockholder’s notice shall set forth (a) as to each person whom the stockholder
proposes to nominate for election or reelection as a director all information relating to
such person that is required to be disclosed in solicitations of proxies for election of
directors in an election contest, or is otherwise required, in each case pursuant to
Regulation 14A under the U.S. Securities Exchange Act of 1934, as amended (the “Exchange
Act”) and Rule 14a-11 thereunder (including such person’s written consent to being named
in the proxy statement as a nominee and to serving as a director if elected); (b) as to any
other business that the stockholder proposes to bring before the meeting, a brief
description of the business desired to be brought before the meeting, the reasons for
conducting such business at the meeting and any material interest in such business of such
stockholder and the beneficial owner, if any, on whose behalf the proposal is made; and (c)
as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf
the nomination or proposal is made (i) the name and address of such stockholder, as they
appear on the Corporation’s books, and of such beneficial owner and (ii) the class and
number of shares of the Corporation which are owned beneficially and of record by such
stockholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence of paragraph (A)(2) of this Bylaw
to the contrary, in the event that the number of directors to be elected to the Board of
Directors of the Corporation is increased and there is no public announcement by the
Corporation naming all of the nominees for director or specifying the size of the increased
Board of Directors at least 70 days prior to the first anniversary of the preceding year’s
annual meeting, a stockholder’s notice required by this Bylaw shall also be considered
timely, but only with respect to nominees for any new positions created by such increase, if
it shall be delivered to the Secretary at the principal executive offices of the Corporation
not later than the close of business on the 10th day following the day on which such public
announcement is first made by the Corporation.
(B) Special Meetings of Stockholders. Only such business shall be conducted at a special
meeting of stockholders as shall have been brought before the meeting pursuant to the
Corporation’s notice of meeting. Nominations of persons for election to the Board of
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Directors may be made at a special meeting of stockholders at which directors are to be
elected pursuant to the Corporation’s notice of meeting (1) by or at the direction of the Board
of Directors or (2) provided that the Board of Directors has determined that directors shall be
elected at such meeting, by any stockholder of the Corporation who is a stockholder of record at
the time of giving of notice provided for in this Bylaw, who shall be entitled to vote at the
meeting and who complies with the notice procedures set forth in this Bylaw. In the event that
the Corporation calls a special meeting of stockholders for the purpose of electing one or more
directors to the Board of Directors, any such stockholder may nominate a person or persons (as
the case may be), for election to such position(s) as specified in the Corporation’s notice of
meeting, if the stockholder’s notice required by paragraph (A)(2) of this Bylaw shall be
delivered to the Secretary at the principal executive offices of the Corporation not earlier than
the close of business on the 120th day prior to such special meeting and not later than the close
of business on the later of the 90th day prior to such special meeting or the tenth day following
the day on which public announcement is first made of the date of the special meeting and of the
nominees proposed by the Board of Directors to be elected at such meeting. In no event shall the
public announcement of an adjournment of a special meeting commence a new time period for the
giving of a stockholder’s notice as described above.
(C) General.
(1) Only such persons who are nominated in accordance with the procedures set forth in
this Bylaw shall be eligible to serve as directors and only such business shall be conducted
at a meeting of stockholders as shall have been brought before the meeting in accordance
with the procedures set forth in this Bylaw. Except as otherwise provided by law, the
chairman of the meeting shall have the power and duty to determine whether a nomination or
any business proposed to be brought before the meeting was made or proposed, as the case may
be, in accordance with the procedures set forth in this Bylaw and, if any proposed
nomination or business is not in compliance with this Bylaw, to declare that such defective
proposal or nomination shall not be presented for stockholder action and shall be
disregarded.
(2) For purposes of this Bylaw, “public announcement” shall mean disclosure in
a press release reported by the Dow Jones News Service, Associated Press or comparable
national news service or in a document publicly filed by the Corporation with the U.S.
Securities and Exchange Commission (the “SEC”) pursuant to Section 13, 14 or 15(d)
of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this Bylaw, a stockholder shall also
comply with all applicable requirements of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth in this Bylaw. Nothing in this Bylaw shall
be deemed to affect any rights (a) of stockholders to request inclusion of proposals in the
Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act or (b) of the
holders of any series of Preferred Stock to elect directors under specified circumstances.
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of Preferred Stock, any action required or permitted to be taken by the stockholders of the Corporation
must be effected at a duly called annual or special meeting of stockholders of the Corporation
and may not be effected by any consent in writing by such stockholders.
ARTICLE III.
BOARD OF DIRECTORS
Section 3.1. General Powers. The business and affairs of the Corporation shall
be managed by or under the direction of the Board of Directors. The number of directors on the
Board of Directors shall be fixed and changed from time to time exclusively by the Board of
Directors pursuant to a resolution adopted by two-thirds of the directors then in office. In
addition to the powers and authorities expressly conferred upon them by these Bylaws, the Board
of Directors may exercise all such powers of the Corporation and do all such lawful acts and
things as are not by statute or by the Certificate of Incorporation or by these Bylaws required
to be exercised or done by the stockholders. A director need not be a stockholder.
Section 3.2. Certain Qualifications for the Board of Directors.
(A) In any election of directors, and subject to Section 3.4 of these Bylaws, the nominees
whom shall be elected to the Board of Directors shall be nominees who receive the highest number
of votes such that, immediately after such election, (1) U.S. Persons as of such election shall
constitute at least half of, but no more than the smallest number of directors that will
constitute a majority of, the directors on the Board of Directors, and (2) European Persons as
of such election shall constitute the remainder of the directors on the Board of Directors. Any
nominee who is not elected in accordance with this Section 3.2(A) of these Bylaws shall not be
qualified to serve as a director and therefore shall not be elected to serve as a director. A
“European Person” shall mean, as of the date of his or her most recent election or
appointment as a director, any person whose domicile as of such date is and for the immediately
preceding twenty-four (24) months shall have been a country in Europe. A “U.S. Person”
shall mean, as of the date of his or her most recent election or appointment as a director any
person whose domicile as of such date is and for the immediately preceding twenty-four (24)
months shall have been the United States.
(B) For each meeting of stockholders at which directors are elected, the Nominating and
Governance Committee of the Board of Directors shall nominate, and the Board of Directors shall
propose, a slate of directors who, if elected, would meet the requirements of Section 3.2(A) of
these Bylaws.
(C) In the event that Section 3.2(A) shall be suspended or become void pursuant to Section
10.11(A) or 10.11(B), then (in the case of a suspension as provided for under Section 10.11(A),
only so long as such suspension shall remain in effect) the number of directors on the Board of
Directors shall be fixed from time to time pursuant to a resolution adopted by a majority of the
directors then in office.
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Section 3.3. Certain Qualifications for the Chairman and Chief Executive Officer.
Either (1) the Chairman of the Board of Directors shall be a U.S. Person and the Chief Executive
Officer shall be a European Person, in each case, as of the most recent election of directors, or
(2) the Chairman of the Board of Directors shall be a European Person and the Chief Executive
Officer shall be a U.S. Person, in each case, as of the most recent election of directors.
Section 3.4. Independence Requirements. At least three-fourths of the members of
the Board of Directors shall satisfy the independence requirements for directors of the
Corporation, as modified and amended by the Board of Directors from time to time. The Chief
Executive Officer of the Corporation and Deputy Chief Executive Officer may be members of the
Board of Directors. The Chief Executive Officer and Deputy Chief Executive Officer and any other
directors who do not satisfy the independence requirements shall be recused from acts of the
Board of Directors, whether it is acting as the Board of Directors or as a committee of the Board
of Directors, with respect to acts of any committee of the Board of Directors that is required to
be comprised solely of directors that satisfy the independence requirements of the Corporation,
as modified and amended by the Board of Directors from time to time.
Section 3.5. Election; Term of Office; Resignation. Each director shall hold
office until his or her successor is elected and qualified or until his or her earlier
resignation or removal. Any director may resign at any time upon written notice to the Board of
Directors. Such resignation shall take effect at the time specified therein (and if no time be
specified, at the time of its receipt by the Board of Directors) and unless otherwise specified
therein no acceptance of such resignation shall be necessary to make it effective.
Section 3.6. Vacancies. Any vacancy on the Board of Directors resulting from
death, retirement, resignation, disqualification or removal from office or other cause, as well
as any vacancy resulting from an increase in the number of directors which occurs between annual
meetings of the stockholders at which directors are elected, shall be filled only by a majority
vote of the remaining directors then in office, though less than a quorum, or by the sole
remaining director (and not by stockholders, unless there shall be no remaining directors), upon
the recommendation of the Nominating and Governance Committee of the Board of Directors. If a
vacancy results from the death, retirement, resignation, disqualification or removal from office
of a U.S. Person or European Person as of the most recent election of directors, then the
director chosen to fill such vacancy shall be a U.S. Person or European Person, respectively, as
of the date of the appointment of such person as a director. If one or more vacancies shall
result from an increase in the number of directors between annual meetings of the stockholders at
which directors are elected, then such vacancies shall be filled by a majority vote of the
remaining directors then in office; provided that, after filling any such vacancy, (1) U.S.
Persons as of the date of their most recent election or appointment as a director shall
constitute at least half of, but no more than the smallest number of directors that will
constitute a majority of, the directors on the Board of Directors, and (2) European Persons as of
the date of their most recent election or appointment as a director shall constitute the
remainder of the directors on the Board of Directors. The directors chosen to fill any vacancies
shall hold office for a term expiring at the end of the next annual meeting of stockholders, but
shall continue to serve despite the expiration of the
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director’s term until his or her successor shall have been elected and qualified. No
decrease in the number of directors constituting the Board of Directors shall shorten or
eliminate the term of any incumbent director. Whenever the holders of any class or classes of
stock or series thereof are entitled by the Certificate of Incorporation to elect one or more
directors, vacancies and newly created directorships of such class or classes or series may be
filled by, and only by, a majority of the directors elected by such class or classes or series
then in office, or by the sole remaining director so elected. If the office of any director
becomes vacant and there are no remaining directors, the stockholders, by the affirmative vote of
the holders of shares constituting a majority of the voting power of the Corporation, at a
special meeting called for such purpose, may appoint any qualified person to fill such vacancy.
Section 3.7. Removal. Subject to the rights of the holders of any series of
Preferred Stock with respect to such series of Preferred Stock, any director, or the entire Board
of Directors, may be removed from office at any time, with or without cause, by the holders of a
majority of the votes entitled to be cast by the holders of the then-outstanding shares of the
Corporation’s capital stock entitled to vote in an election of directors, voting together as a
single class.
Section 3.8. Meetings. The newly elected directors may hold their first meeting
for the purpose of organization and the transaction of business, if a quorum be present,
immediately after the annual meeting of the stockholders; or the time and place of such meeting
may be fixed by consent of all the Directors. Regular meetings of the Board of Directors may be
held without notice at such places and times as shall be determined from time to time by
resolution of the Board of Directors. Regular meetings of the Board of Directors shall be held
with substantially equal frequency in the United States and Europe. Special meetings of the
Board of Directors may be held at any time or place within or without the State of Delaware
whenever called by a Chairman of the Board, the Deputy Chairman of the Board, the Chief Executive
Officer, Deputy Chief Executive Officer or a majority of the directors then in office, and shall
be held at such place or places as may be determined by the Board of Directors.
Section 3.9. Notice. Notice of any special meeting of directors shall be given
to each director at his business or residence in writing by hand delivery, first-class or
overnight mail or courier service, facsimile transmission, email or other electronic transmission
or orally by telephone not later than twenty-four (24) hours prior to such meeting. If mailed by
first-class mail, such notice shall be deemed adequately delivered when deposited in the United
States mails so addressed, with postage thereon prepaid, at least four (4) days before such
meeting; provided, that, any notice sent by U.S. mail to an address outside of the United States
will also be sent by overnight mail or courier service to such director. If by overnight mail or
courier service, such notice shall be deemed adequately delivered when the notice is delivered to
the overnight mail or courier service company at least twenty-four (24) hours before such
meeting; provided, that, any notice sent by U.S. mail to an address outside of the United States
will also be sent by overnight mail or courier service to such director. If by facsimile
transmission, email or other electronic transmission, such notice shall be deemed adequately
delivered when the notice is transmitted at least twenty-four (24) hours before such meeting. If
by telephone or by hand delivery, the notice shall be given at least twenty-four (24) hours prior
to the time set for the meeting. Neither the business to be
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transacted at, nor the purpose of, any regular or special meeting of the Board of Directors
need be specified in the notice of such meeting. A meeting may be held at any time without
notice if all the directors are present or if those not present waive notice of the meeting in
accordance with Section 10.3 of these Bylaws.
Section 3.10. Participation in Meetings by Conference Telephone Permitted.
Members of the Board of Directors, or any committee designated by the Board, shall be entitled to
participate in a meeting of the Board or of such committee, as the case may be, by means of
conference telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participation in a meeting pursuant to this
Bylaw shall constitute presence in person at such meeting.
Section 3.11. Quorum; Vote Required for Action. At each meeting of the Board of
Directors, a whole number of directors equal to at least a majority of the total number of
directors constituting the entire Board of Directors (including any vacancies) shall constitute a
quorum for the transaction of business. The vote of a majority of the directors present at a
meeting at which a quorum is present shall be the act of the Board unless the Certificate of
Incorporation or these Bylaws shall require a vote of a greater number. The directors present at
a duly organized meeting may continue to transact business until adjournment, notwithstanding the
withdrawal of enough directors to leave less than a quorum. In case at any meeting of the Board
a quorum shall not be present, the members or a majority of the members of the Board present may
adjourn the meeting from time to time until a quorum shall be present.
Section 3.12. Organization. Meetings of the Board of Directors shall be presided
over by the Chairman of the Board of Directors, if any, or in the absence of a Chairman of the
Board of Directors, by the Deputy Chairman of the Board, or in the absence of both the Chairman
and the Deputy Chairman of the Board, a chairman chosen at the meeting; provided, however, that,
if the Chairman of the Board of Directors or Deputy Chairman of the Board of Directors is also
the Chief Executive Officer or Deputy Chief Executive Officer, he or she shall not participate in
executive sessions of the Board of Directors. If the Chairman of the Board of Directors is not
the Chief Executive Officer or Deputy Chief Executive Officer, he or she shall act as a liaison
officer between the Board of Directors and the Chief Executive Officer and Deputy Chief Executive
Officer. A Corporate Secretary, or in the absence of a Corporate Secretary an Assistant
Corporate Secretary, shall act as secretary of the meeting, but in the absence of a Corporate
Secretary and any Assistant Corporate Secretary the chairman of the meeting may appoint any
person to act as secretary of the meeting.
Section 3.13. Action by Directors Without a Meeting. Any action required or
permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may
be taken without a meeting if all members of the Board or of such committee, as the case may be,
then in office consent thereto in writing or by electronic transmission, and the writing or
writings or electronic transmission or transmissions are filed with the minutes of proceedings of
the Board or committee.
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Section 3.14. Compensation of Directors. Directors may be paid such compensation
for their services and such reimbursement for expenses of attendance at meetings as the Board of
Directors may from time to time determine. No such payment shall preclude any director from
serving the Corporation or any of its parents or subsidiaries in any other capacity and receiving
compensation for such service.
Section 3.15. Considerations of the Board.
(A) In discharging his or her responsibilities as a member of the Board, each director also
must, to the fullest extent permitted by applicable law, take into consideration the effect that
the Corporation’s actions would have on the ability of:
(1) the European Market Subsidiaries to carry out their responsibilities under the
European Exchange Regulations as operators of European Regulated Markets;
(2) the U.S. Regulated Subsidiaries to carry out their responsibilities under the
Exchange Act; and
(3) the U.S. Regulated Subsidiaries, NYSE Group, Inc. (“NYSE Group”) (if and to the
extent that NYSE Group continues to exist as a separate entity) and the Corporation (a) to
engage in conduct that fosters and does not interfere with the ability of the U.S. Regulated
Subsidiaries, NYSE Group (if and to the extent that NYSE Group continues to exist as a
separate entity) and the Corporation to prevent fraudulent and manipulative acts and
practices in the securities markets; (b) to promote just and equitable principles of trade
in the securities markets; (c) to foster cooperation and coordination with persons engaged
in regulating, clearing, settling, processing information with respect to, and facilitating
transactions in securities; (d) to remove impediments to and perfect the mechanisms of a
free and open market in securities and a U.S. national securities market system; and (e) in
general, to protect investors and the public interest.
(B) In discharging his or her responsibilities as a member of the Board or as an officer or
employee of the Corporation, each such director, officer or employee shall (1) comply with the
U.S. federal securities laws and the rules and regulations thereunder, (2) comply with the
European Exchange Regulations and the rules and regulations thereunder, (3) cooperate with the
SEC, (4) cooperate with the European Regulators, (5) cooperate with the U.S. Regulated
Subsidiaries pursuant to and, to the extent of, their regulatory authority and (6) cooperate with
the European Market Subsidiaries pursuant to and, to the extent of, their regulatory authority.
(C) Nothing in this Section 3.15 shall create any duty owed by any director, officer or
employee of the Corporation to any Person to consider, or afford any particular weight to, any of
the foregoing matters or to limit his or her consideration to the foregoing matters. No
employee, former employee, beneficiary, customer, creditor, community or regulatory authority or
member thereof shall have any rights against any director, officer or employee of the Corporation
or the Corporation under this Section 3.15.
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ARTICLE IV.
COMMITTEES
Section 4.1. Committees of the Board of Directors. The Board of Directors may
from time to time designate one or more committees of the Board of Directors, with such lawfully
delegable powers and duties as it thereby confers, to serve at the pleasure of the Board of
Directors and shall, for those committees and any others provided for herein, elect a director or
directors to serve as the member or members, designating, if it desires, other directors as
alternate members who may replace any absent or disqualified member at any meeting of the
committee. In the absence or disqualification of any member of any committee and any alternate
member in his or her place, the member or members of the committee present at the meeting and not
disqualified from voting, whether or not he or she or they constitute a quorum, may by unanimous
vote appoint another member of the Board of Directors to act at the meeting in the place of the
absent or disqualified member. Subject to the requirements of Section 4.4 of these Bylaws
(unless such section has been suspended or become void and of no force and effect as provided for
under Section 10.11 of these Bylaws), the Board of Directors shall have power at any time to fill
vacancies in, to change the membership of, or to dissolve any such committee. Nothing herein
shall be deemed to prevent the Board of Directors from appointing one or more committees
consisting in whole or in part of persons who are not directors of the Corporation; provided,
however, that no such committee shall have or may exercise any authority of the Board of
Directors.
Section 4.2. Committee Procedures. Each committee may determine the procedural
rules for meeting and conducting its business and shall act in accordance therewith, except as
otherwise provided herein or required by law. A majority of any committee may fix the time and
place of its meetings, unless the Board of Directors shall otherwise provide. Adequate provision
shall be made for notice of such meetings to be given to members of the committees.
Section 4.3. Committee Rules. Unless the Board of Directors otherwise provides,
each committee designated by the Board may adopt, amend and repeal rules for the conduct of its
business. In the absence of a provision by the Board or a provision in the rules of such
committee to the contrary, a majority of the entire authorized number of members of such
committee shall constitute a quorum for the transaction of business unless the committee shall
consist of one (1) or two (2) members, in which event one (1) member shall constitute a quorum.
The vote of a majority of the members present at a meeting at the time of such vote if a quorum
is then present shall be the act of such committee. Action may be taken by any committee without
a meeting if all members thereof consent thereto in writing or by electronic transmission, and
the writing or writings or electronic transmission or transmissions are filed with the minutes of
the proceedings of such committee. Such filing shall be in paper form if the minutes are
maintained in paper form and shall be in electronic form if the minutes are maintained in
electronic form.
Section 4.4. Nominating and Governance Committee. The Nominating and Governance
Committee of the Board of Directors shall be comprised of an equal number of
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U.S. Persons (as determined as of their most recent election or appointment as directors)
and European Persons (as determined as of their most recent election or appointment as
directors).
ARTICLE V.
OFFICERS; EMPLOYEES
Section 5.1. Officers and Chairmen; Election or Appointment. The Board of
Directors shall take such action as may be necessary from time to time to ensure that the
Corporation has such officers as are necessary, under this Section 5.1 of these Bylaws and the
DGCL as currently in effect or as the same may hereafter be amended, to enable it to sign stock
certificates. In addition, the Board of Directors at any time and from time to time may elect
(1) a Chairman of the Board of Directors from among its members, (2) a Deputy Chairman of the
Board of Directors from among its members, (3) a Chief Executive Officer, a Deputy Chief
Executive Officer, one or more Presidents and/or one or more Chief Financial Officers, (4) one or
more Executive Vice Presidents, one or more Corporate Secretaries and/or (5) one or more other
officers, in the case of each of (1), (2), (3), (4) and (5) if and to the extent the Board deems
desirable. The Board of Directors may give any officer such further designations or alternate
titles as it considers desirable. In addition, the Board of Directors at any time and from time
to time may authorize any officer of the Corporation to appoint one or more officers of the kind
described in clauses (4) and (5) above. Any number of offices may be held by the same person and
directors may hold any office unless the Certificate of Incorporation or these Bylaws otherwise
provide.
Section 5.2. Term of Office; Resignation; Removal; Vacancies. Unless otherwise
provided in the resolution of the Board of Directors electing or authorizing the appointment of
any officer, each officer shall hold office until his or her successor is elected or appointed
and qualified or until his or her earlier resignation or removal. Any officer may resign at any
time upon written notice to the Board or to such person or persons as the Board may designate.
Such resignation shall take effect at the time specified therein, and unless otherwise specified
therein no acceptance of such resignation shall be necessary to make it effective. The Board may
remove any officer with or without cause at any time. Any officer authorized by the Board to
appoint a person to hold an office of the Corporation may also remove such person from such
office with or without cause at any time, unless otherwise provided in the resolution of the
Board providing such authorization. Any vacancy occurring in any office of the Corporation by
death, resignation, removal or otherwise may be filled by the Board at any regular or special
meeting or by an officer authorized by the Board to appoint a person to hold such office.
Section 5.3. Powers and Duties. The officers of the Corporation shall have such
powers and duties in the management of the Corporation as shall be stated in these Bylaws or in a
resolution of the Board of Directors which is not inconsistent with these Bylaws and, to the
extent not so stated, as generally pertain to their respective offices, subject to the control of
the Board. The Board may require any officer, agent or employee to give security for the
faithful performance of his or her duties.
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ARTICLE VI.
STOCK CERTIFICATES AND TRANSFERS
Section 6.1. Certificates; Uncertificated Shares. The shares of stock in the
Corporation shall be represented by certificates; provided that the Board of Directors of the
Corporation may provide by resolution or resolutions that some or all of any or all classes or
series of its stock shall be uncertificated shares. Any such resolution shall not apply to any
such shares represented by a certificate theretofore issued until such certificate is surrendered
to the Corporation. If shares of stock in the Corporation are certificated, any signature on
such certificates may be a facsimile. In case any officer, transfer agent or registrar who has
signed or whose facsimile signature has been placed upon a certificate shall have ceased to be
such officer, transfer agent or registrar before such certificate is issued, it may be issued by
the Corporation with the same effect as if such person were such officer, transfer agent or
registrar at the date of issue. Certificates representing shares of stock of the Corporation may
bear such legends regarding restrictions on transfer or other matters as any officer or officers
of the Corporation may determine to be appropriate and lawful.
If the Corporation is authorized to issue more than one class of stock or more than one
series of any class, the powers, designations, preferences and relative, participating, optional
or other special rights of each class of stock or series thereof and the qualifications or
restrictions of such preferences and/or rights shall be set forth in full or summarized on the
face or back of the certificate which the Corporation shall issue to represent such class or
series of stock, provided that, except as otherwise required by law, in lieu of the foregoing
requirements, there may be set forth on the face or back of the certificate which the Corporation
shall issue to represent such class or series of stock a statement that the Corporation will
furnish without charge to each stockholder who so requests the powers, designations, preferences
and relative, participating, optional or other special rights of such class or series of stock
and the qualifications, limitations or restrictions of such preferences and/or rights. Within a
reasonable time after the issuance or transfer of uncertificated shares of any class or series of
stock, the Corporation shall send to the registered owner thereof a written notice containing the
information required by law to be set forth or stated on certificates representing shares of such
class or series or a statement that the Corporation will furnish without charge to each
stockholder who so requests the powers, designations, preferences and relative, participating,
optional or other special rights of such class or series and the qualifications, limitations or
restrictions of such preferences and/or rights.
Except as otherwise expressly provided by law, the rights and obligations of the holders of
uncertificated shares and the rights and obligations of the holders of certificates representing
stock of the same class and series shall be identical.
Section 6.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New
Certificates. No certificate for shares of stock in the Corporation shall be issued in place
of any certificate alleged to have been lost, destroyed or stolen, except on production of such
evidence of such loss, destruction or theft and on delivery to the Corporation of a bond of
indemnity in such amount, upon such terms and secured by such surety, as the Board of Directors
or any financial officer may in its or his discretion require.
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Section 6.3. Transfer of Shares. The shares of stock of the Corporation shall be
transferable only upon its books by the holders thereof in person or by their duly authorized
attorneys or legal representatives, and upon such transfer the old certificates shall be
surrendered to the Corporation by the delivery thereof to the person in charge of the stock and
transfer books and ledgers, or to such other person as the Board of Directors may designate, by
whom they shall be cancelled, and new certificates shall thereupon be issued. A record shall be
made of each transfer and whenever a transfer shall be made for collateral security, and not
absolutely, it shall be so expressed in the entry of the transfer.
ARTICLE VII.
JURISDICTION
Section 7.1. Submission to Jurisdiction of U.S. Courts and the SEC. The
Corporation, its directors and officers, and those of its employees whose principal place of
business and residence is outside of the United States shall be deemed to irrevocably submit to
the jurisdiction of the U.S. federal courts and the SEC for the purposes of any suit, action or
proceeding pursuant to the U.S. federal securities laws and the rules and regulations thereunder,
commenced or initiated by the SEC arising out of, or relating to, the activities of the U.S.
Regulated Subsidiaries (and shall be deemed to agree that the Corporation may serve as the U.S.
agent for purposes of service of process in such suit, action or proceeding), and the Corporation
and each such director, officer or employee, in the case of any such director, officer or
employee by virtue of his acceptance of any such position, shall be deemed to waive, and agree
not to assert by way of motion, as a defense or otherwise in any such suit, action or proceeding,
any claims that it or they are not personally subject to the jurisdiction of the SEC, that such
suit, action or proceeding is an inconvenient forum or that the venue of such suit, action or
proceeding is improper, or that the subject matter thereof may not be enforced in or by such
courts or agency.
Section 7.2. Submission to Jurisdiction of European Regulators. The Corporation,
its directors and officers and employees shall be deemed to irrevocably submit to the
jurisdiction of the European Regulators and to courts in the capital city of the country of each
such regulator for the purposes of any suit, action or proceeding pursuant to the European
Exchange Regulations and the rules and regulations thereunder, commenced or initiated by the
European Regulators arising out of, or relating to, the activities of the European Market
Subsidiaries, and the Corporation and each such director, officer or employee, in the case of any
such director, officer or employee by virtue of his acceptance of any such position, shall be
deemed to waive, and agree not to assert by way of motion, as a defense or otherwise in any such
suit, action or proceeding, any claims that it or they are not personally subject to the
jurisdiction of the European Regulators, that such suit, action or proceeding is an inconvenient
forum or that the venue of such suit, action or proceeding is improper, or that the subject
matter thereof may not be enforced in or by such courts or regulator.
Section 7.3. Certain Definitions.
(A) “Euronext College of Regulators” means (1) the Committee of Chairmen of the
French Financial Market Authority (Autorité des Marchés Financiers), the Netherlands
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Authority for the Financial Markets (Autoriteit Financiele Markten), the Belgian Banking,
Finance, and Insurance Commission (Commission Bancaire, Financière, et des Assurances), the
Portuguese Securities Market Commission (Comissão do Mercado de Valores Mobiliários — CMVM), and
the U.K. Financial Services Authority (FSA), pursuant to the Memoranda of Understanding, dated
March 3, 2003 and March 22, 2001, and (2) a successor body thereto created to include a European
Regulator that regulates a European Market Subsidiary.
(B) “European Exchange Regulations” shall mean (1) laws providing for the regulation
of securities exchanges in France, the Netherlands, Belgium, Portugal and the United Kingdom and
(2) following the formation or acquisition by Euronext N.V. (“Euronext”) of any European
Regulated Market not owned and operated by Euronext as of 3:00am Eastern Daylight Time on April
4, 2007 (the “Effective Time”), laws providing for the regulation of securities exchanges
in the jurisdiction in which such European Regulated Market operates; provided that (a) the
formation or acquisition of such European Regulated Market shall have been approved by the Board
of Directors of the Corporation and (b) the jurisdiction in which such European Regulated Market
operates is represented in the Euronext College of Regulators.
(C) “European Regulated Market” means each “regulated market” (as defined by
the European Directive on Markets in Financial Instruments 2004/39 EC) in Europe that (1) is
owned and operated by Euronext and was owned and operated by Euronext as of the Effective Time;
or (2) is formed or acquired by Euronext after the Effective Time; provided that, in the case of
clause (2), the formation or acquisition of such European Regulated Market shall have been
approved by the Board of Directors of the Corporation and the jurisdiction in which such European
Regulated Market operates is represented in the Euronext College of Regulators.
(D) “European Regulator” shall mean any of the Euronext College of Regulators, the
Dutch Minister of Finance, the French Minister of the Economy, the French Financial Market
Authority (Autorité des Marchés Financiers), the Netherlands Authority for the Financial Markets
(Autoriteit Financiele Markten), the Belgian Banking, Finance, and Insurance Commission
(Commission Bancaire, Financière, et des Assurances), the French Committee of Credit
Establishments and Investment Undertakings (Comité des Etablissements de Crédit et des
Enterprises d’Investissement — CECEI), the Portuguese Securities Market Commission (Comissão do
Mercado de Valores Mobiliários — CMVM), the U.K. Financial Services Authority (FSA), or any
other governmental securities regulator in any European country where the Corporation or any
European Market Subsidiary operates a European Regulated Market, in each case only to the extent
that it has authority and jurisdiction in the particular context.
(E) “European Market Subsidiary” (and collectively, the “European Market
Subsidiaries”) shall mean any “market operator” (as defined by the European Directive
on Markets in Financial Instruments 2004/39 EC) that is (1) owned by Euronext as of the Effective
Time and continues to be owned directly or indirectly by the Corporation; or (2) acquired by
Euronext after the Effective Time; provided that, in the case of clause (2), the acquisition of
such entity shall have been approved by the Board of Directors of the Corporation and the
jurisdiction in which such European Market Subsidiary operates is represented in the Euronext
College of Regulators.
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(F) “Europe” shall mean (1) any and all of the jurisdictions in which Euronext or
any of its subsidiaries operates a European Regulated Market, (2) any member state of the
European Economic Area as of the Effective Time and any state that becomes a member of the
European Economic Area after the Effective Time, and (3) Switzerland.
(G) “U.S. Regulated Subsidiaries” shall mean New York Stock Exchange LLC, NYSE
Market, Inc., NYSE Regulation, Inc., NYSE Arca, L.L.C., NYSE Arca, Inc., NYSE Arca Equities, Inc.
and NYSE Alternext US LLC or their successors, in each case to the extent that such entities
continue to be controlled, directly or indirectly, by the Corporation (and each, a “U.S.
Regulated Subsidiary”).
ARTICLE VIII.
CONFIDENTIAL INFORMATION
Section 8.1. Limits on Disclosure. To the fullest extent permitted by applicable
law, all confidential information that shall come into the possession of the Corporation
pertaining to:
(A) the self-regulatory function of New York Stock Exchange LLC, NYSE Market, Inc., NYSE
Regulation, Inc., NYSE Arca, Inc., NYSE Arca Equities, Inc. and NYSE Alternext US LLC or their
successors, in each case to the extent that such entities continue to be controlled, directly or
indirectly, by the Corporation (including but not limited to disciplinary matters, trading data,
trading practices and audit information) contained in the books and records of any of the U.S.
Regulated Subsidiaries (the “U.S. Subsidiaries’ Confidential Information”); or
(B) the self-regulatory function of any of the European Market Subsidiaries under the
European Exchange Regulations as operator of a European Regulated Market (including but not
limited to disciplinary matters, trading data, trading practices and audit information) contained
in the books and records of the European Market Subsidiaries (the “European Subsidiaries’
Confidential Information”);
in each case, shall (x) not be made available to any Persons (other than as provided in
Sections 8.2 and 8.3 of these Bylaws) other than to those officers, directors, employees and
agents of the Corporation that have a reasonable need to know the contents thereof; (y) be
retained in confidence by the Corporation and the officers, directors, employees and agents of
the Corporation; and (z) not be used for any commercial purposes.
Section 8.2. Certain Disclosure Permitted. Notwithstanding Section 8.1 of these
Bylaws, nothing in these Bylaws shall be interpreted so as to limit or impede:
(A) the rights of the SEC or any of the U.S. Regulated Subsidiaries to have access to and
examine such U.S. Subsidiaries’ Confidential Information pursuant to the U.S. federal securities
laws and the rules and regulations thereunder;
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(B) the rights of the European Regulators or any of the European Market Subsidiaries to have
access to and examine such European Subsidiaries’ Confidential Information pursuant to the
European Exchange Regulations; or
(C) the ability of any officers, directors, employees or agents of the Corporation to
disclose (1) the U.S. Subsidiaries’ Confidential Information to the SEC or the U.S. Regulated
Subsidiaries or (2) the European Subsidiaries’ Confidential Information to the European
Regulators or the European Market Subsidiaries.
Section 8.3. Inspection. The Corporation’s books and records shall be subject at
all times to inspection and copying by:
(A) the SEC;
(B) each of the European Regulators;
(C) any U.S. Regulated Subsidiary; provided that such books and records are related to the
operation or administration of such U.S. Regulated Subsidiary or any other U.S. Regulated
Subsidiary over which such U.S. Regulated Subsidiary has regulatory authority or oversight; and
(D) any European Market Subsidiary; provided that such books and records are related to the
operation or administration of such European Market Subsidiary or any European Regulated Market
over which such European Market Subsidiary has regulatory authority or oversight.
Section 8.4. Subject to Section 8.6 of these Bylaws, the Corporation’s books and records
related to U.S. Regulated Subsidiaries shall be maintained within the United States. For so long
as the Corporation directly or indirectly controls any U.S. Regulated Subsidiary, the books,
records, premises, officers, directors and employees of the Corporation shall be deemed to be the
books, records, premises, officers, directors and employees of such U.S. Regulated Subsidiaries
for purposes of and subject to oversight pursuant to the Exchange Act.
Section 8.5. Subject to Section 8.6 of these Bylaws, the Corporation’s books and records
related to European Market Subsidiaries shall be maintained within the home jurisdiction of one
or more European Market Subsidiaries. For so long as the Corporation directly or indirectly
controls any European Market Subsidiary, the books, records, premises, officers, directors and
employees of the Corporation shall be deemed to be the books, records, premises, officers,
directors and employees of such European Market Subsidiaries for purposes of and subject to
oversight pursuant to the European Exchange Regulations.
Section 8.6. If and to the extent that any of the Corporation’s books and records may
relate to both European Market Subsidiaries and U.S. Regulated Subsidiaries, the Corporation
shall be entitled to maintain such books and records either in the home jurisdiction of one or
more European Market Subsidiaries or in the United States.
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ARTICLE IX.
COMPLIANCE WITH SECURITIES LAWS; OTHER CONSIDERATIONS
Section 9.1. The Corporation shall comply with the U.S. federal securities laws and the
rules and regulations thereunder and shall cooperate with the SEC and the U.S. Regulated
Subsidiaries pursuant to and to the extent of their respective regulatory authority, and shall
take reasonable steps necessary to cause its agents to cooperate, with the SEC and, where
applicable, the U.S. Regulated Subsidiaries pursuant to their regulatory authority.
Section 9.2. The Corporation shall comply with the European Exchange Regulations
and the rules and regulations thereunder and shall cooperate with the European Regulators
pursuant to and to the extent of their respective regulatory authority, and shall take reasonable
steps necessary to cause its agents to cooperate, with the European Regulators pursuant to their
regulatory authority.
Section 9.3. The Corporation shall take reasonable steps necessary to cause its officers, directors and employees, prior to accepting a position as an officer, director or
employee, as applicable, of the Corporation to consent in writing to the applicability to them of
Articles VII and VIII and Sections 3.15 and 9.4 of these Bylaws, as applicable, with respect to
their activities related to any U.S. Regulated Subsidiary.
Section 9.4. The Corporation, its directors, officers and employees shall give due regard to the preservation of the independence of the self-regulatory function of the
U.S. Regulated Subsidiaries (to the extent of each U.S. Regulated Subsidiary’s self-regulatory
function) and to its obligations to investors and the general public, and shall not take any
actions that would interfere with the effectuation of any decisions by the board of directors or
managers of the U.S. Regulated Subsidiaries relating to their regulatory responsibilities
(including enforcement and disciplinary matters) or that would interfere with the ability of the
U.S. Regulated Subsidiaries to carry out their respective responsibilities under the Exchange
Act.
Section 9.5. The Corporation, its directors, officers and employees shall give due regard
to the preservation of the independence of the self-regulatory function of the European Market
Subsidiaries (to the extent of each European Market Subsidiaries’ self-regulatory function) and
to its obligations to investors and the general public, and shall not take any actions that would
interfere with the effectuation of any decisions by the board of directors or managers of the
European Market Subsidiaries relating to their regulatory responsibilities (including enforcement
and disciplinary matters) or that would interfere with the ability of the European Market
Subsidiaries to carry out their respective regulatory responsibilities under the European
Exchange Regulations.
Section 9.6. No stockholder, employee, former employee, beneficiary, customer, creditor,
community, regulatory authority or member thereof shall have any rights against the Corporation
or any director, officer or employee of the Corporation under this Article IX.
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ARTICLE X.
MISCELLANEOUS
Section 10.1. Fiscal Year. The fiscal year of the Corporation shall be
determined by the Board of Directors.
Section 10.2. Seal. The Corporation may have a corporate seal which shall have
the name of the Corporation inscribed thereon and shall be in such form as may be approved from
time to time by the Board of Directors. The corporate seal may be used by causing it or a
facsimile thereof to be impressed or affixed or in any other manner reproduced.
Section 10.3. Waiver of Notice of Meetings of Stockholders, Directors and
Committees. Whenever notice is required to be given by law or under any provision of the
Certificate of Incorporation or these Bylaws, a written waiver thereof, signed by the person
entitled to notice, or a waiver by electronic transmission by the person entitled to notice,
whether before or after the time stated therein, shall be deemed equivalent to the giving of such
notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting,
except when the person attends a meeting for the express purpose of objecting, at the beginning
of the meeting, to the transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any regular or special
meeting of the stockholders, directors or members of a committee of directors need be specified
in any written waiver of notice or any waiver by electronic transmission unless so required by
the Certificate of Incorporation or these Bylaws.
Section 10.4. Contracts. Except as otherwise required by law, the Certificate of
Incorporation or these Bylaws, any contracts or other instruments may be executed and delivered
in the name and on the behalf of the Corporation by such officer or officers of the Corporation
as the Board of Directors may from time to time direct. Such authority may be general or
confined to specific instances as the Board may determine. The Chairman of the Board, the Deputy
Chairman of the Board, the Chief Executive Officer, the Deputy Chief Executive Officer, the
President or any Vice President may execute bonds, contracts, deeds, leases and other instruments
to be made or executed for or on behalf of the Corporation. Subject to any restrictions imposed
by the Board of Directors or the Chairman of the Board, the Deputy Chairman of the Board, the
Chief Executive Officer, the Deputy Chief Executive Officer, the President or any Vice President
of the Corporation may delegate contractual powers to others under his jurisdiction, it being
understood, however, that any such delegation of power shall not relieve such officer of
responsibility with respect to the exercise of such delegated power.
Section 10.5. Proxies. Unless otherwise provided by resolution adopted by the
Board of Directors, the Chairman of the Board, the Deputy Chairman of the Board, the Chief
Executive Officer, the Deputy Chief Executive Officer, the President or any Vice President may
from time to time appoint an attorney or attorneys or agent or agents of the Corporation, in the
name and on behalf of the Corporation, to cast the votes which the Corporation may be entitled to
cast as the holder of stock or other securities in any other corporation, any of whose stock or
other securities may be held by the Corporation, at
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meetings of the holders of the stock or other securities of such other corporation, or to
consent in writing, in the name of the Corporation as such holder, to any action by such other
corporation, and may instruct the person or persons so appointed as to the manner of casting such
votes or giving such consent, and may execute or cause to be executed in the name and on behalf
of the Corporation and under its corporate seal or otherwise, all such written proxies or other
instruments as he may deem necessary or proper in the premises.
Section 10.6. Indemnification and Insurance.
(A) Each person who was or is made a party or is threatened to be made a party to or is
involved in any action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a “proceeding”), by reason of the fact that he or she, or a
person of whom he or she is the legal representative, is or was a director or officer of the
Corporation or is or was serving at the request of the Corporation as a director, officer or
employee or agent of another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans, whether the basis of such
proceeding is alleged action in an official capacity as a director, officer, employee or agent or
in any other capacity while serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the Corporation to the fullest extent authorized by the DGCL, as
the same exists or may hereafter be amended (but, in the case of any such amendment, to the
fullest extent permitted by law, only to the extent that such amendment permits the Corporation
to provide broader indemnification rights than said law permitted the Corporation to provide
prior to such amendment), against all expense, liability and loss (including attorneys’ fees,
judgments, fines, amounts paid or to be paid in settlement, and excise taxes or penalties arising
under the Employee Retirement Income Security Act of 1974) reasonably incurred or suffered by
such person in connection therewith and such indemnification shall continue as to a person who
has ceased to be a director, officer, employee or agent and shall inure to the benefit of his or
her heirs, executors and administrators; provided, however, that, except as provided in paragraph
(C) of this Section 10.6, the Corporation shall indemnify any such person seeking indemnification
in connection with a proceeding (or part thereof) initiated by such person only if such
proceeding (or part thereof) was authorized by the Board. The right to indemnification conferred
in this Section 10.6 shall be a contract right and shall include the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance of its final
disposition; provided, however, that, if the DGCL requires, the payment of such expenses incurred
by a director or officer in his or her capacity as a director or officer (and not in any other
capacity in which service was or is rendered by such person while a director or officer,
including, without limitation, service to an employee benefit plan) in advance of the final
disposition of a proceeding, shall be made only upon delivery to the Corporation of an
undertaking, by or on behalf of such director or officer, to repay all amounts so advanced if it
shall ultimately be determined that such director or officer is not entitled to be indemnified
under this Section 10.6 or otherwise. The Corporation may, by action of the Board, provide
indemnification to employees and agents of the Corporation with the same scope and effect as the
foregoing indemnification of directors and officers. For purposes of this Bylaw, the term
“Corporation” shall include any predecessor of the Corporation and any constituent corporation
(including any constituent of a constituent) absorbed by the Corporation in a consolidation or
merger.
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(B) To obtain indemnification under this Section 10.6, a claimant shall submit to the
Corporation a written request, including therein or therewith such documentation and information
as is reasonably available to the claimant and is reasonably necessary to determine whether and
to what extent the claimant is entitled to indemnification. Upon written request by a claimant
for indemnification pursuant to the first sentence of this paragraph (B), a determination, if
required by applicable law, with respect to the claimant’s entitlement thereto shall be made as
follows: (1) if requested by the claimant, by Independent Counsel (as hereinafter defined), or
(2) if no request is made by the claimant for a determination by Independent Counsel, (i) by the
Board of Directors by a majority of the Disinterested Directors (as hereinafter defined), even
though less than a quorum, or (ii) by a committee of Disinterested Directors designated by
majority vote of the Disinterested Directors, even if less than a quorum, or (iii) if there are
no Disinterested Directors, or if a majority of the Disinterested Directors so directs, by
Independent Counsel in a written opinion to the Board of Directors, a copy of which shall be
delivered to the claimant, or (iv) if a majority of the Disinterested Directors so directs, by
the stockholders of the Corporation. In the event that the determination of entitlement to
indemnification is to be made by Independent Counsel at the request of the claimant, the
Independent Counsel shall be selected by the Board of Directors unless there shall have occurred
within two years prior to the date of the commencement of the action, suit or proceeding for
which indemnification is claimed a “Change of Control,” in which case the Independent Counsel
shall be selected by the claimant unless the claimant shall request that such selection be made
by the Board of Directors. If it is so determined that the claimant is entitled to
indemnification, payment to the claimant shall be made within 10 days after such determination.
(C) If a claim under paragraph (A) of this Section 10.6 is not paid in full by the
Corporation within thirty (30) days after a written claim pursuant to paragraph (B) of this
Section 10.6 has been received by the Corporation, the claimant may at any time thereafter bring
suit against the Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such
claim. It shall be a defense to any such action (other than an action brought to enforce a claim
for expenses incurred in defending any proceeding in advance of its final disposition where the
required undertaking, if any is required, has been tendered to the Corporation) that the claimant
has not met the standard of conduct that makes it permissible under the DGCL for the Corporation
to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be
on the Corporation. Neither the failure of the Corporation (including its Board of Directors,
Independent Counsel or stockholders) to have made a determination prior to the commencement of
such action that indemnification of the claimant is proper in the circumstances because he or she
has met the applicable standard of conduct set forth in the DGCL, nor an actual determination by
the Corporation (including its Board of Directors, Independent Counsel or stockholders) that the
claimant has not met such applicable standard of conduct, shall be a defense to the action or
create a presumption that the claimant has not met the applicable standard of conduct.
(D) If a determination shall have been made pursuant to paragraph (B) of this Section 10.6
that the claimant is entitled to indemnification, the Corporation shall be bound by such
determination in any judicial proceeding commenced pursuant to paragraph (C) of this Section
10.6.
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(E) The Corporation shall be precluded from asserting in any judicial proceeding commenced
pursuant to paragraph (C) of this Section 10.6 that the procedures and presumptions of this Bylaw
are not valid, binding and enforceable and shall stipulate in such proceeding that the
Corporation is bound by all the provisions of this Bylaw.
(F) The right to indemnification and the payment of expenses incurred in defending a
proceeding in advance of its final disposition conferred in this Bylaw shall not be exclusive of
any other right that any person may have or hereafter acquire under any statute, provision of the
Certificate of Incorporation, Bylaws, agreement, vote of stockholders or Disinterested Directors
or otherwise. No repeal or modification of this Bylaw shall in any way diminish or adversely
affect the rights of any director, officer, employee or agent of the Corporation hereunder in
respect of any occurrence or matter arising prior to any such repeal or modification.
(G) The Corporation may maintain insurance, at its expense, to protect itself and any
director, officer, employee or agent of the Corporation or another corporation, partnership,
joint venture, trust or other enterprise against any expense, liability or loss, whether or not
the Corporation would have the power to indemnify such person against such expense, liability or
loss under the DGCL. To the extent that the Corporation maintains any policy or policies
providing such insurance, each such director or officer, and each such agent or employee to which
rights to indemnification have been granted as provided in paragraph (H) of this Section 10.6,
shall be covered by such policy or policies in accordance with its or their terms to the maximum
extent of the coverage thereunder for any such director, officer, employee or agent.
(H) The Corporation may, to the extent authorized from time to time by the Board of
Directors, grant rights to indemnification, and rights to be paid by the Corporation the expenses
incurred in defending any proceeding in advance of its final disposition, to any employee or
agent of the Corporation to the fullest extent of the provisions of this Section 10.6 with
respect to the indemnification and advancement of expenses of directors and officers of the
Corporation.
(I) If any provision or provisions of this Section 10.6 shall be held to be invalid, illegal
or unenforceable for any reason whatsoever: (1) the validity, legality and enforceability of the
remaining provisions of this Section 10.6 (including, without limitation, each portion of any
paragraph of this Section 10.6 containing any such provision held to be invalid, illegal or
unenforceable, that is not itself held to be invalid, illegal or unenforceable) shall not in any
way be affected or impaired thereby; and (2) to the fullest extent possible, the provisions of
this Section 10.6 (including, without limitation, each such portion of any paragraph of this
Section 10.6 containing any such provision held to be invalid, illegal or unenforceable) shall be
construed so as to give effect to the intent manifested by the provision held invalid, illegal or
unenforceable.
(J) For purposes of this Section 10.6:
(1) “Disinterested Director” means a director of the Corporation who is not and
was not a party to the matter in respect of which indemnification is sought by the claimant.
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(2) “Independent Counsel” means a law firm, a member of a law firm, or an
independent practitioner, that is experienced in matters of corporation law and shall
include any person who, under the applicable standards of professional conduct then
prevailing, would not have a conflict of interest in representing either the Corporation or
the claimant in an action to determine the claimant’s rights under this Section 10.6.
(3) “Change of Control” means the first to occur of:
| (I) | The acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act (a “Person”) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 50% or more of either (A) the then-outstanding shares of common stock of the Corporation (the “Outstanding Common Stock”) or (B) the combined voting power of the then-outstanding voting securities of the Corporation entitled to vote generally in the election of directors (the “Outstanding Voting Securities”); provided, however, that the following acquisitions shall not constitute a Change of Control: (i) any acquisition directly from the Corporation, (ii) any acquisition by the Corporation, (iii) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Corporation or any affiliated corporation; or (iv) any acquisition by any corporation pursuant to a transaction which complies with clauses (A), (B) and (C) of subsection (III); | ||
| (II) | Any transaction as a result of which the individuals who, prior to the commencement of the transaction or the efforts to consummate the same, constituted the Board of Directors (the “Incumbent Board”) cease in connection with the transaction to constitute at least a majority of the Board of Directors; provided, however, that any individual becoming a director whose election, or nomination for election by the Corporation’s stockholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a person other than the Board of Directors; | ||
| (III) | Consummation of a reorganization, merger, statutory share exchange or consolidation or similar corporate transaction |
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| involving the Corporation or any of its subsidiaries, a sale or other disposition of all or substantially all of the assets of the Corporation, or the acquisition of assets or stock of another entity by the Corporation or any of its subsidiaries (each, a “Business Combination”), in each case unless, following such Business Combination, (A) all or substantially all of the individuals and entities that were the beneficial owners of the Outstanding Common Stock and the Outstanding Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of the then-outstanding shares of common stock and the combined voting power of the then-outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the Corporation resulting from such Business Combination (including, without limitation, a corporation that, as a result of such transaction, owns the Corporation or all or substantially all of the Corporation’s assets either directly or through one or more subsidiaries) in substantially the same proportions as their ownership immediately prior to such Business Combination of the Outstanding Common Stock and the Outstanding Voting Securities, as the case may be, (B) no Person (excluding any corporation resulting from such Business Combination or any employee benefit plan (or related trust) of the Corporation or such corporation resulting from such Business Combination) beneficially owns, directly or indirectly, 50% or more of, respectively, the then-outstanding shares of common stock of the corporation resulting from such Business Combination or the combined voting power of the then-outstanding voting securities of such corporation, except to the extent that such ownership existed prior to the Business Combination, and (C) at least a majority of the members of the Board of Directors of the corporation resulting from such Business Combination were members of the Incumbent Board at the time of the execution of the initial agreement or of the action of the Board providing for such Business Combination; or |
| (IV) | Approval by the stockholders of the Corporation of a complete liquidation or dissolution of the Corporation. |
(K) Any notice, request or other communication required or permitted to be given to the
Corporation under this Section 10.6 shall be in writing and either delivered in person or sent by
telecopy, telex, telegram, overnight mail or courier service, or certified or registered mail,
postage prepaid, return receipt requested, to the Secretary of the Corporation and shall be
effective only upon receipt by the Secretary.
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Section 10.7. Form of Records. Unless otherwise required by applicable law, any
records maintained by the Corporation in the regular course of its business, including its stock
ledger, books of account and minute books, may be kept on, or be in the form of, punch cards,
magnetic tape, photographs, microphotographs or any other information storage device, provided
that the records so kept can be converted into clearly legible form within a reasonable time.
The Corporation shall so convert any records so kept upon the request of any person entitled to
inspect the same.
Section 10.8. Laws and Regulations; Close of Business. For purposes of these
Bylaws, any reference to a statute, rule or regulation of any governmental body means such
statute, rule or regulation (including any successor thereto) as the same currently exists or may
be amended from time to time. Any reference in these Bylaws to the close of business on any day
shall be deemed to mean 5:00 P.M., New York time, on such day, whether or not such day is a
business day.
Section 10.9. Certain Extraordinary Transactions. The affirmative vote of at
least two-thirds of the directors then in office shall be required for (1) the consummation of
any Extraordinary Transaction, or (2) the execution by the Corporation or any of its subsidiaries
of a definitive agreement providing for an Extraordinary Transaction. An “Extraordinary
Transaction” shall mean any of the following: (a) the direct or indirect acquisition, sale
or disposition by the Corporation or any of its subsidiaries of assets or equity securities where
the consideration received in respect of such assets or equity securities has a fair market
value, measured as of the date of the execution of the definitive agreement providing for such
acquisition, sale or disposition (or, if no definitive agreement is executed for such
acquisition, sale or disposition, the date of the consummation of such acquisition, sale or
disposition), in excess of 30% of the aggregate equity market capitalization of the Corporation
as of such date; (b) a merger or consolidation of the Corporation or any of its subsidiaries with
any entity with an aggregate equity market capitalization (or, if such entity’s equity securities
shall not be traded on a securities exchange, with a fair market value of assets), measured as of
the date of the execution of the definitive agreement providing for such merger or consolidation
(or, if no definitive agreement is executed for such merger or consolidation, the date of the
consummation of such merger or consolidation), in excess of 30% of the aggregate equity market
capitalization of the Corporation as of such date; or (c) any direct or indirect acquisition by
the Corporation or any of its subsidiaries of assets or equity securities of an entity whose
principal place of business is outside of the United States and Europe, or any merger or
consolidation of the Corporation or any of its subsidiaries with an entity whose principal place
of business is outside of the United States and Europe, pursuant to which the Corporation has
agreed that one or more directors of the Board of Directors of the Corporation shall be a person
who is neither a U.S. Person nor a European Person as of the most recent election of directors.
Section 10.10. Amendment of Bylaws.
(A) By the Board.
(1) These Bylaws may be amended or repealed, and new Bylaws may be adopted at any time,
by a majority of the Board of Directors, except as set forth in
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Section 10.10(A)(2) of these Bylaws (unless such section has become void as provided
for under Section 10.11(B) of these Bylaws).
(2) None of Section 3.1, 3.2, 3.3, 3.6, 3.9, 3.10, 3.15, 4.4, 7.3(F), 10.9, 10.10(A) or
10.10(B) of these Bylaws may be amended or repealed, and no new bylaw that contradicts these
sections may be adopted, by the Board of Directors, other than pursuant to an affirmative
vote of not less than two-thirds of the directors then in office.
(B) By Stockholders. Stockholders of the Corporation may amend or repeal any Bylaw;
provided that notice of the proposed change was given in the notice of the stockholders meeting
at which such action is to be taken and, provided, further, that in addition to any vote of the
holders of any class or series of stock of the Corporation required by law or the Certificate of
Incorporation:
(1) the affirmative vote of the holders of not less than 80% of the votes entitled to
be cast by the holders of the then-outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors, voting together as a single class,
shall be required for the stockholders to adopt, amend or repeal Section 3.1, 3.2, 3.3, 3.6,
3.9, 3.10, 3.15, 4.4, 7.3(F), 10.9, 10.10(A) or 10.10(B) of these Bylaws; and
(2) the affirmative vote of the holders of a majority of the votes entitled to be cast
by the holders of the then-outstanding shares of capital stock of the Corporation entitled
to vote generally in the election of directors, voting together as a single class, shall be
required for the stockholders to adopt, amend or repeal any other Section of these Bylaws.
(C) Notwithstanding paragraphs (A) and (B) of this Section 10.10, (1) for so long as the
Corporation shall control, directly or indirectly, any European Market Subsidiary, before any
amendment or repeal of any provision of these Bylaws shall be effective, such amendment or repeal
shall either be (i) filed with or filed with and approved by a European Regulator under European
Exchange Regulations or (ii) submitted to the boards of directors of the European Market
Subsidiaries and, if any or all of such boards of directors shall determine that such amendment
or repeal must be filed with or filed with and approved by a European Regulator under European
Exchange Regulations before such amendment or repeal may be effectuated, then such amendment or
repeal shall not be effectuated until filed with or filed with and approved by the relevant
European Regulator(s); and (2) for so long as the Corporation shall control, directly or
indirectly, any of the U.S. Regulated Subsidiaries before any amendment or repeal of any
provision of these Bylaws shall be effective, such amendment or repeal shall either be (i) filed
with or filed with and approved by the SEC under Section 19 of the Exchange Act and the rules
promulgated thereunder or (ii) submitted to the boards of directors of New York Stock Exchange
LLC, NYSE Market, Inc., NYSE Regulation, Inc., NYSE Arca, Inc., NYSE Arca Equities, Inc. and NYSE
Alternext US LLC or the boards of directors of their successors, in each case only to the extent
that such entity continues to be controlled directly or indirectly by the Corporation, and if any
or all of such boards of directors shall determine that such amendment or repeal must be filed
with or filed with and approved by the SEC under Section 19 of the Exchange Act and the rules
promulgated thereunder before such amendment or repeal may be effectuated, then such amendment or
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repeal shall not be effectuated until filed with or filed with and approved by the SEC, as
the case may be.
Section 10.11. Automatic Suspension and Revocation of Certain Provisions.
(A) Immediately following the exercise of a Euronext Call Option, and for so long as the
Foundation shall continue to hold any Priority Shares or ordinary shares of Euronext, or the
voting securities of one or more of the subsidiaries of Euronext that, taken together, represent
a substantial portion of Euronext’s business, then each of the second sentence of Section
2.10(A)(2), the second and third sentences of Section 3.6, the third sentence of Section 3.8 and
Sections 3.2(A), 3.2(B), 3.3, 3.15(A)(1), 3.15(B)(2), 3.15(B)(4), 3.15(B)(6), 4.4, 7.2, 8.1(B),
8.2(B), 8.2(C)(2), 8.3(B), 8.3(D), 8.5, 9.2, 9.5 and 10.9 of these Bylaws shall be suspended and
be of no force and effect.
(B) If, (1) after a period of six (6) months following the exercise of a Euronext Call
Option, the Foundation shall continue to hold any ordinary shares of Euronext, or the securities
of one or more subsidiaries of Euronext that, taken together, represent a substantial portion of
Euronext’s business, (2) after a period of six (6) months following the exercise of a Euronext
Call Option, the Foundation shall continue to hold any Priority Shares of Euronext, or the
priority shares or similar securities of one or more subsidiaries of Euronext that, taken
together, represent a substantial portion of Euronext’s business or (3) at any time, the
Corporation no longer holds a direct or indirect Controlling Interest in Euronext, or in one or
more subsidiaries of Euronext that, taken together, represent a substantial portion of Euronext’s
business, then each of the second sentence of Section 2.10(A)(2), the second and third sentences
of Section 3.6, the third sentence of Section 3.8 and Sections 3.2(A), 3.2(B), 3.3, 3.15(A)(1),
3.15(B)(2), 3.15(B)(4), 3.15(B)(6), 4.4, 7.2, 7.3(A), 7.3(B), 7.3(C), 7.3(D), 7.3(E), 7.3(F),
8.1(B), 8.2(B), 8.2(C)(2), 8.3(B), 8.3(D), 8.5, 9.2, 9.5, 10.9, 10.10(A)(2), 10.10(B)(1) and
10.10(C)(1) of these Bylaws, shall automatically and without further action become void and be of
no further force and effect, and any directors and officers of the Corporation that are European
Persons shall resign or be removed from their offices; provided, however, that, in the case of
clause (2) of this Section 10.11(B), such provisions shall be deleted and become void only if and
to the extent that the Board of Directors of the Corporation shall approve of such deletion by
resolution adopted by a majority of the directors then in office.
(C) For the purposes of this Section 10.11:
(1) A “Controlling Interest” in any entity shall mean fifty percent (50%) or
more of both (1) the then-outstanding shares of each class of voting securities of such
entity and (2) the combined voting power of the then-outstanding voting securities of the
such entity entitled to vote generally in the election of directors.
(2) “Euronext Call Option” shall have the meaning set forth in the Articles of
Formation of the Foundation.
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(3) “Foundation” shall mean Stichting NYSE Euronext, a foundation
(“stichting”) organized under the laws of The Netherlands, formed by the Corporation
on April 4, 2007.
(4) “Priority Shares” shall have the meaning set forth in the Articles of
Formation of the Foundation.
Section 10.12. Voting and Ownership Limitations.
(A) Subject to its fiduciary obligations under applicable law, for so long as the
Corporation directly or indirectly controls NYSE Alternext US LLC (or its successor), the Board
shall not adopt any resolution pursuant to clause (2) of Section 1(B) of Article V of the
Certificate of Incorporation unless the Board shall have determined that:
(1) in the case of a resolution to approve the exercise of voting rights in excess of
20% of the then outstanding votes entitled to be cast on such matter, neither such Person
nor any of its Related Persons is a “member,” as defined in Sections 3(a)(3)(A)(i),
3(a)(3)(A)(ii), 3(a)(3)(A)(iii) and 3(a)(3)(A)(iv) of the Securities Exchange Act of 1934,
as amended, of NYSE Alternext US LLC (or its successor) (a “Member”) (any such Person that
is a Related Person of such member shall hereinafter also be deemed to be a “Member” for
purposes of these Bylaws, as the context may require); and
(2) in the case of a resolution to approve the entering into of an agreement, plan or
other arrangement under circumstances that would result in shares of stock of the
Corporation that would be subject to such agreement, plan or other arrangement not being
voted on any matter, or the withholding of any proxy relating thereto, where the effect of
such agreement, plan or other arrangement would be to enable any Person, but for Article V
of the Certificate of Incorporation, either alone or together with its Related Persons, to
vote, possess the right to vote or cause the voting of shares of stock of the Corporation
that would exceed 20% of the then outstanding votes entitled to be cast on such matter
(assuming that all shares of stock of the Corporation that are subject to such agreement,
plan or other arrangement are not outstanding votes entitled to be cast on such matter),
neither such Person nor any of its Related Persons is, with respect to NYSE Alternext US LLC
(or its successor), a Member.
(B) Subject to its fiduciary obligations under applicable law, for so long as the
Corporation directly or indirectly controls NYSE Alternext US LLC (or its successor), the Board
shall not adopt any resolution pursuant to clause (2) of Section 2(B) of Article V of the
Certificate of Incorporation, unless the Board shall have determined that neither such Person nor
any of its Related Persons is a Member.
(C) For the purposes of this Section 10.12, “Person” shall have the meaning assigned in the
Certificate of Incorporation of the Corporation, as it shall be in effect from time to time.
(D) “Related Person” shall have the meaning assigned by the Certificate of Incorporation of
the Corporation, as it shall be in effect from time to time.
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Section 10.13. Amendments to the Certificate of Incorporation. For so long as
the Corporation shall control, directly or indirectly, NYSE Alternext US LLC (or its successor),
the Board of Directors shall not adopt any resolution to repeal or amend any provision of the
Certificate of Incorporation unless such amendment or repeal shall either be (A) filed with or
filed with and approved by the SEC under Section 19 of the Exchange Act and the rules promulgated
thereunder or (B) submitted to the board of directors of NYSE Alternext US LLC (or the board of
directors of its successor), and if such board of directors determines that such amendment or
repeal must be filed with or filed with and approved by the SEC under Section 19 of the Exchange
Act and the rules promulgated thereunder before such amendment or repeal may be effectuated, then
such amendment or repeal shall not be effectuated until filed with or filed with and approved by
the SEC, as the case may be.
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