Filed by NYSE Group, Inc.
Pursuant to Rule 425 under the Securities Act of 1933, as amended,
and deemed filed pursuant to Rule 14a-12 of the
Securities Exchange Act of 1934, as amended
Subject Companies:
New York Stock Exchange, Inc.
Archipelago Holdings, Inc.
(Commission File No. 001-32274)
Date: February 28, 2006
On February 28, 2006, New York Stock Exchange, Inc. (the "NYSE") sent the
following bulletin to the NYSE members:
* * *
Special Membership Bulletin
[Letterhead of the New York Stock Exchange, Inc.]
Date: February 28, 2006
To: NYSE Members
From: Richard P. Bernard
Executive Vice President and General Counsel
Subject: Closing of NYSE-Archipelago Merger
I am pleased to announce that the Securities and Exchange Commission has
approved the NYSE rule filing necessary to complete our merger with Archipelago.
We have set Tuesday, March 7 as the closing date for the merger (the "CLOSING
DATE"). Trading of NYSE Group stock will commence on Wednesday, March 8.
As we prepare for this historic day, there are important requirements and
deadlines for NYSE Members, their eligible distributees or persons or entities
entitled to receive consideration from a NYSE Membership ("RECIPIENTS").
A. HOW TO RECEIVE THE MERGER CONSIDERATION
o If you have not already done so, please send your Form of
Election and Letter of Transmittal (the "LETTER OF TRANSMITTAL")
to Wells Fargo, our exchange agent, as soon as possible. For
overnight courier, the address is:
Wells Fargo Bank, N.A.
Corporate Actions Department
161 North Concord Exchange
South St. Paul, MN 55075
(651) 450-4064
o In order to provide every opportunity to receive Recipients'
paperwork, a representative from Wells Fargo will be at the
Exchange on Thursday, March 2, and Friday, March 3, to answer
questions and to accept Letters of Transmittal on behalf of Wells
Fargo. If you wish to meet with a representative from Wells Fargo
personally, please contact Zoya Krivorot at 212 656-2099 or
Claudia Flanagan at 212-656-5616 to make an appointment.
o Recipients wishing to make the "Cash Election" or the "Stock
Election" must submit their Letters of Transmittal to Wells Fargo
so that they are received before the close of business on March
3. The Letters of Transmittal may be received at the addresses
listed on the cover of the Letter of Transmittal or by personal
delivery to the Wells Fargo representative at the Exchange as
noted above. DO NOT MAIL YOUR LETTER OF TRANSMITTAL TO THE NYSE.
Please be advised that, if you wish to make a Stock Election or
Cash Election, the March 3 deadline is absolute. If your Letter
of Transmittal is not RECEIVED by Wells Fargo by 5:00 p.m., New
York time, on March 3, you will receive the standard
consideration for your NYSE membership.
o As noted in the Letter of Transmittal, NYSE Members who have
designated that all or a portion of their merger consideration be
sent to an eligible distributee must fill out BOTH the "Percent
of Cash Consideration" and the "Percent of Stock Consideration"
columns on page 7 of the Letter of Transmittal, REGARDLESS of
whether they have made the Cash Election, the Stock Election or
no election because of possible adjustment in the event that the
Stock Election or the Cash Election is oversubscribed. If you
leave a column blank, the consideration referenced by the blank
column will be distributed in the same percentage as you have
indicated in the column that you marked. For example, if you make
a Cash Election and do not complete the "Percent of Stock
Consideration" column on page 7 of the Letter of Transmittal, any
shares of NYSE Group common stock that you receive in the merger
will be provided to your distributee in the same percentage as
you have indicated in your cash column.
o The March 3 deadline does not apply to Recipients wishing to
receive the standard consideration, who have until 180 days after
the merger to submit their Letters of Transmittal. However, no
consideration will be issued or paid to a Recipient until a
correctly completed Letter of Transmittal has been received.
o IF YOU REQUIRE A NEW LETTER OF TRANSMITTAL, WOULD LIKE TO VERIFY
THE RECEIPT OF YOUR LETTER OF TRANSMITTAL OR IF YOU HAVE
QUESTIONS ABOUT DISTRIBUTION OF CASH AND EQUITY CONSIDERATION IN
THE MERGER, PLEASE CONTACT WELLS FARGO AT 1-800-380-1372.
B. DELIVERY OF THE MERGER CONSIDERATION
o As of March 7, Wells Fargo will process Letters of Transmittal
for both (1) Recipients seeking the standard consideration and
(2) those Recipients who have submitted their Letters of
Transmittal by March 3 and made the Cash Election or Stock
Election. Each consideration package will contain a check and/or
a statement detailing the number of restricted shares of NYSE
Group common stock held by Wells Fargo in the Recipient's name
and the lock-up periods applying to those shares. These packages
will be sent by U.S. mail
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and should be received by Recipients on or about March 21. Wells
Fargo will not send consideration via overnight mail nor will it
wire funds.
o The precise consideration that will be issued to Recipients who
make the Cash Election or Stock Election will not be known until
after March 3. When the NYSE has the information regarding the
precise amount of consideration to be issued to those who have
made the Cash Election or the Stock Election, the NYSE will make
this information available.
o For those Letters of Transmittal received by Wells Fargo after
the Closing Date, consideration packages will be sent as soon as
practicable after Wells Fargo processes such Letter of
Transmittal.
C. ADDITIONAL ELIGIBLE DISTRIBUTEES
o We have added new categories of eligible distributes:
o If the NYSE Membership is subject to an A-B-C Agreement or
Subordination Agreement, each of the following shall be an
eligible distributee: (a) any person who owns 5% or more of
the common voting and equity interest of a counterparty to
such agreement and (b) any wholly-owned sister company of a
counterparty to such agreement (an entity is a "wholly-owned
sister company" of another entity if a person directly or
indirectly owns all of the common voting and equity interest
of both entities); and
o If a NYSE Member is a natural person, any family member of
an NYSE Member (with the definition of "family member" now
being defined as the NYSE Member's spouse, domestic partner,
children, stepchildren, children-in-law, grandchildren,
parents, stepparents, parents-in-law, grandparents,
brothers, stepbrothers, brothers-in-law, sisters,
stepsisters, sisters-in-law, uncles, aunts, cousins, nephews
and nieces).
o If a NYSE Member is a natural person, any limited liability
company where the NYSE Member and/or his or her family
members are the sole owners of all of the common voting and
equity interest of such limited liability company.
o For a complete list of eligible distributees, see Annex A
attached to this bulletin.
o Wells Fargo will determine Recipients of the proceeds for any
NYSE Membership based upon the instructions contained in the
Letters of Transmittal that it has received. If you have already
submitted your Letter of Transmittal and wish to change it after
reviewing the new categories of
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eligible distributees, fax your request to Wells Fargo on or
prior to the election deadline of Friday, March 3. Faxes should
be sent to (651) 450-2452, Attention: Julie Lingofelt. Your
revised instructions must include the full name and address of
the new distributees, an IRS Form W-9 for each distributee and
complete percentage elections for both the percentage of the
stock and cash consideration to be received by such distributee.
o Your call must be followed by a fax or email with confirmation to
Wells Fargo. Failure to make such a confirmation may result in
Wells Fargo acting in accordance with your original Letter of
Transmittal.
D. THE PERMITTED DIVIDEND
o In addition to the merger consideration that will be paid to
Recipients, a cash dividend will be paid to all record holders of
NYSE memberships as of March 6. The dividend will be equal to
$70,570.78, less any tax withholding that may be required. The
permitted dividend will be sent by Wells Fargo in the form of a
separate check by March 21.
o UNLIKE THE MERGER CONSIDERATION, THE DIVIDEND MUST AND WILL BE
PAID TO THE NYSE MEMBER OF RECORD AND WILL NOT BE PAID TO
ELIGIBLE DISTRIBUTEES OR PERSONS ENTITLED TO ALL OR A PORTION OF
THE MERGER CONSIDERATION AS DESIGNATED IN THE LETTER OF
TRANSMITTAL.
o If your NYSE Membership is subject to an A-B-C Agreement, the
check for the dividend will be made out to the NYSE Member of
record and will be sent to the offices of the Member
Organization. Accordingly, if you are a Member Organization that
is party to an A-B-C Agreement or a creditor under a
Subordination Agreement and believe that the NYSE Member should
forward you all or a portion of the dividend, you should contact
the NYSE Member directly and make the appropriate arrangements.
E. POST-CLOSING TRANSFER OF NYSE GROUP COMMON STOCK
o Please note that the shares of NYSE Group common stock that you
receive as merger consideration will be subject to the transfer
restrictions set forth in the Certificate of Incorporation of
NYSE Group, which will be filed with the SEC soon after
completion of the merger. Subject to certain exceptions, the
transfer restrictions prohibit any direct or indirect assignment,
sale, exchange, transfer, tender or other disposition of a NYSE
Group Share or any interest therein, whether voluntary or
involuntary, by operation of law or otherwise. This includes any
sale or other disposition in any one transaction or series of
transactions and the grant or transfer of an option or derivative
security covering such NYSE Group Share. As long as a NYSE Group
Share is subject to these transfer restrictions, such share must
be held in the account of Wells Fargo and may not be held in a
brokerage or other account. In addition,
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please note that NYSE Group Shares will not be in certificate
form, so your ownership of this stock will only be reflected by
the statement that you receive from Wells Fargo.
o There are certain exceptions to these transfer restrictions,
which will also be set forth in the Certificate of Incorporation
of NYSE Group and are generally the same as the list of eligible
distributees attached hereto as Annex A. If you wish to transfer
all or a portion of your NYSE Group common stock pursuant to one
of these exceptions, you will be required to complete an
affidavit, which you can obtain from Steven Fuller at NYSE Group
at (212) 656-2071 stating that your transfer qualifies under one
of the exceptions set forth in the Certificate of Incorporation
of NYSE Group. Please note that any shares that you transfer
pursuant to this exception will consist of a number of shares
with 1-year, 2-year and 3-year lockup terms in the same
proportion that you held shares with 1-year, 2-year and 3-year
lockup terms, respectively, prior to the transfer.
F. OTHER
o All NYSE Members and Recipients are urged to consult with their
tax advisors regarding the tax consequences to them of receiving
the permitted dividend or any merger consideration, including the
effects of U.S. federal, state, local, foreign and other tax
laws. Neither the NYSE nor NYSE Group will respond to requests
for guidance.
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ANNEX A - ELIGIBLE DISTRIBUTEES
As noted in Instruction 5 to the Letter of Transmittal, you may designate one or
more persons to receive all or a portion of your merger consideration, as long
as such person is an eligible distributee. The list of eligible distributees is
now as follows:
If you are holding your NYSE membership as a natural person, your eligible
distributees are:
o any of your family members (with the definition of "family
member" now being defined as your spouse, domestic partner,
children, stepchildren, children-in-law, grandchildren, parents,
stepparents, parents-in-law, grandparents, brothers,
stepbrothers, brothers-in-law, sisters, stepsisters,
sisters-in-law, uncles, aunts, cousins, nephews and nieces);
o any trust or foundation solely for the benefit of you or your
family members;
o any entity in which you directly or indirectly own all of the
common equity and voting interests;
o any limited liability company where you and/or your family
members are the sole owners of all of the common voting and
equity interest of such limited liability company; and
o the trustee of your bankruptcy estate if you become bankrupt or
insolvent.
If you are holding your NYSE membership in a limited liability company approved
by the NYSE, your eligible distributees are:
o any entity or person that directly or indirectly owns all of the
membership interests of your limited liability company;
o any entity in which your limited liability company directly or
indirectly owns all of the common equity and voting interests;
and
o the trustee of the bankruptcy estate of your limited liability
company if such company becomes bankrupt or insolvent.
If your NYSE membership is subject to an A-B-C Agreement or Subordination
Agreement, your eligible distributees are:
o any entity or person that is a counterparty to such agreement;
o any entity or person that directly or indirectly owns 5% or more
of the common equity and voting interests of such counterparty;
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o any entity in which such counterparty directly or indirectly owns
all of the common equity and voting interests; and
o any wholly owned sister company of a counterparty to such
agreement (an entity is a "wholly owned sister company" of
another entity if a person directly or indirectly owns all of the
common voting and equity interest of both entities).
Finally, if you are holding a NYSE membership as a fiduciary of the estate of a
deceased person, your eligible distributees include any beneficiaries of such
estate (including a trust for the benefit of such beneficiaries).
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IMPORTANT ACQUISITION INFORMATION WITH RESPECT TO THE MERGER
In connection with the proposed merger of the New York Stock Exchange, Inc.
("NYSE") and Archipelago Holdings, Inc. ("Archipelago"), NYSE Group, Inc. has
filed a registration statement on Form S-4 with the Securities and Exchange
Commission (SEC) containing a joint proxy statement/prospectus regarding the
proposed transaction. The parties have filed other publicly available relevant
documents concerning the proposed transaction with the SEC. The SEC declared the
Registration Statement effective on November 3, 2005.
NYSE MEMBERS AND ARCHIPELAGO STOCKHOLDERS ARE URGED TO READ THE FINAL JOINT
PROXY STATEMENT/ PROSPECTUS REGARDING THE PROPOSED TRANSACTION BECAUSE IT
CONTAINS IMPORTANT INFORMATION.
NYSE members and Archipelago stockholders can obtain a free copy of the final
joint proxy statement/prospectus, as well as other filings containing
information about NYSE and Archipelago without charge, at the SEC's website
(http://www.sec.gov ). Copies of the final joint proxy statement/prospectus can
also be obtained, without charge, by directing a request to the Office of the
Corporate Secretary, NYSE, 11 Wall Street, New York 10005, 212-656-2061 or to
Archipelago, Attention: Investor Relations, at 100 S. Wacker Drive, Suite 1800,
Chicago, Illinois 60606 or calling (888) 514-7284.
This correspondence shall not constitute an offer to sell or the solicitation of
an offer to buy any securities, nor shall there be any sale of securities in any
jurisdiction in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such
jurisdiction. No offering of securities shall be made except by means of a
prospectus meeting the requirements of Section 10 of the Securities Act of 1933,
as amended.
FORWARD-LOOKING STATEMENTS
Certain statements in this press release may contain forward-looking information
regarding the NYSE and Archipelago and the combined company after the completion
of the transactions that are intended to be covered by the safe harbor for
"forward-looking statements" provided by the Private Securities Litigation
Reform Act of 1995. These statements include, but are not limited to, the
benefits of the business combination transaction involving NYSE and Archipelago,
including future financial and operating results, the new company's plans,
objectives, expectations and intentions and other statements that are not
historical facts. Such statements are based upon the current beliefs and
expectations of NYSE's and Archipelago's management and are subject to
significant risks and uncertainties. Actual results may differ from those set
forth in the forward-looking statements.
The following factors, among others, could cause actual results to differ from
those set forth in the forward-looking statements: the ability to obtain
governmental approvals of the transaction on the proposed terms and schedule;
the risk that the businesses will not be integrated successfully; the risk that
the cost savings and any other synergies from the transaction may not be fully
realized or may take longer to realize than expected; disruption from the
transaction making it more difficult to maintain relationships with customers,
employees or suppliers; competition and its effect on pricing, spending,
third-party relationships and revenues; social and political conditions such as
war, political unrest or terrorism; general economic conditions and normal
business uncertainty. Additional risks and factors are identified in
Archipelago's filings with the Securities Exchange Commission, including its
Report on Form 10-K for the fiscal year ending December 31, 2004 which is
available on Archipelago's website at http://www.Archipelago.com, and the
Registration Statement on Form S-4 filed by NYSE Group, Inc. with the SEC on
July 21, 2005 (and amended on September 24, 2005, October 24, 2005 and November
3, 2005).
You should not place undue reliance on forward-looking statements, which speak
only as of the date of this document. Except for any obligation to disclose
material information under the Federal securities laws, none of the NYSE,
Archipelago or the combined company after the completion of the transactions
undertake any obligation to release publicly any revisions to any
forward-looking statements to reflect events or circumstances after the date of
this document.
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