In respect of the description of the shareholder litigation contained
in the Offer Document as well as the description of the treatment of
Deutsche Börse shares as components of the DAX and the STOXX indices
contained in the Offer Document the following is published:
Settlement of Shareholder Litigation
Following the announcement of the business combination agreement between
NYSE Euronext ("NYSE Euronext”), Deutsche Börse AG ("Deutsche Börse”),
Alpha Beta Netherlands Holding N.V., a public limited liability company
incorporated under the laws of the Netherlands ("Holdco”), and Pomme
Merger Corporation, a Delaware corporation and wholly owned subsidiary
of Holdco ("Merger Sub”) pursuant to which NYSE Euronext and Deutsche
Börse AG agreed to combine their respective businesses and become
subsidiaries of Holdco (the "combination”) on February 15, 2011, several
complaints were filed in the Delaware Court of Chancery (the "Delaware
Court”); the Supreme Court of the State of New York, County of New York
(the "New York Court”); and the U.S. District Court for the Southern
District of New York (the "SDNY”), each challenging the proposed
combination. The Delaware cases were subsequently consolidated under the
caption In re NYSE Euronext Shareholders Litigation, Consol.
C.A. No. 6220-VCS (the "Delaware action”). The New York Court cases were
coordinated, and a Master File was created, under the caption In re
NYSE Euronext Shareholders Litigation, Index No. 773000/11 (the "New
York action” and together with the Delaware action, the "actions”). The
actions were brought as putative class actions on behalf of shareholders
of NYSE Euronext and variously name as defendants NYSE Euronext, its
directors at the time of the announcement of the combination (together
with NYSE Euronext, the "NYSE Euronext defendants”), Deutsche Börse,
Merger Sub and Holdco, and allege that the individual defendants
breached their fiduciary duties in connection with their consideration
and approval of the combination and that the entity defendants aided and
abetted those breaches. On May 26, 2011, plaintiffs in the actions filed
a motion in the Delaware Court seeking a preliminary injunction
enjoining the scheduled July 7, 2011 NYSE Euronext shareholder vote on
the combination.
On June 16, 2011, the plaintiffs in the actions, the NYSE Euronext
defendants, Deutsche Börse and Holdco entered into a memorandum of
understanding ("MOU”) setting forth their agreement in principal
regarding a proposed settlement of all claims asserted in the actions.
As part of the settlement, the NYSE Euronext defendants acknowledged
that the pendency and prosecution of the actions were a factor in the
NYSE Euronext board of directors’ decision to support management’s
recommendation that Holdco declare a special dividend and consequently
provide appraisal rights. Additionally, in the MOU, Holdco acknowledged
its intent to recommend to the Holdco board of directors that following
the completion of the combination Holdco act upon the recommendations of
the boards of directors of NYSE Euronext and Deutsche Börse that Holdco
issue the special dividend subject to the approval of the Holdco board
of directors, consistent with its fiduciary duties. As part of the
settlement, the parties agreed to seek to remove or withdraw any pending
requests for interim relief, specifically including plaintiffs’ motion
for a preliminary injunction in the Delaware action.
The settlement is contingent upon, among other items, the execution of a
formal stipulation of settlement, Delaware Court approval following
notice to the class, final dismissal of the actions with prejudice, and
the completion of the combination. If Holdco were to fail to pay the
special dividend, for any reason, the parties would have the option to
terminate the settlement. If the settlement is consummated, it would
release all claims that the plaintiffs and all members of the class may
have arising out of or relating in any manner to the combination, as
described in the MOU, including the federal action pending in SDNY.
Decision made on treatment of Deutsche Börse shares as components of
DAX and STOXX indices in context of planned merger with NYSE Euronext
The Working Committee for Equity Indices decided to replace the Deutsche
Börse share (ISIN DE0005810055) with the tendered Deutsche Börse share
(ISIN DE000A1KRND6) with two trading days notice, provided an acceptance
threshold of at least 50 percent is reached by the end of the initial
acceptance period (i.e., on 13 July 2011) or at any time during the
additional acceptance period. Once the 50% threshold is achieved the
then larger share class is included in the DAX in accordance with the
index rulebook. If the tendered Deutsche Börse share is still an index
member after closing or discontinuation of the transaction, the tendered
Deutsche Börse share will be replaced by the Alpha Beta Netherlands
Holdings N.V. share (ISIN NL0009766997) or the Deutsche Börse share
(ISIN DE0005810055), respectively, provided that, in the case of the
closing of the transaction, the Alpha Beta Netherlands Holdings N.V.
share fulfils the criteria for inclusion in the DAX. Deutsche Börse
stated that it will follow the independent decision of the Working
Committee for Equity Indices and will implement the adjustments as
decided.
The Deutsche Börse share (ISIN DE0005810055) will be replaced in STOXX
indices by the tendered Deutsche Börse share (ISIN DE000A1KRND6) with
two trading days notice, provided an acceptance threshold of at least 75
percent is reached by 13 July 2011 or at any time during the additional
acceptance period. The new free float market capitalisation will reflect
the reached acceptance level. If the tendered Deutsche Börse share is
still an index member, after closing or discontinuation of the
transaction, the tendered Deutsche Börse share will be replaced by the
Alpha Beta Netherlands Holdings N.V. share (ISIN NL0009766997) or the
Deutsche Börse share (ISIN DE0005810055), respectively, provided that,
in the case of the closing of the transaction, the Alpha Beta
Netherlands Holdings N.V. share fulfils the criteria for inclusion in
the STOXX indices.
With an increasing number of Deutsche Börse shares being tendered until
13 July 2011, there is a strong probability that the liquidity of the
untendered Deutsche Börse shares (ISIN DE0005810055) will be
significantly lower than the liquidity of the tendered Deutsche Börse
shares (ISIN DE000A1KRND6).
Safe Harbour Statement
In connection with the proposed business combination transaction between
NYSE Euronext and Deutsche Boerse AG, Alpha Beta Netherlands Holding
N.V. ("Holding”), a newly formed holding company, has filed, and the SEC
has declared effective on May 3, 2011, a Registration Statement on Form
F-4 with the U.S. Securities and Exchange Commission ("SEC”) that
includes (1) a proxy statement of NYSE Euronext that will also
constitute a prospectus for Holding and (2) an offering prospectus of
Holding to be used in connection with Holding’s offer to acquire
Deutsche Boerse AG shares held by U.S. holders. Holding has also filed
an offer document with the German Federal Financial Supervisory
Authority (Bundesanstalt fuer Finanzdienstleistungsaufsicht) ("BaFin”),
which was approved by the BaFin for publication pursuant to the German
Takeover Act (Wertpapiererwerbs-und Übernahmegesetz), and was published
on May 4, 2011.
Investors and security holders are urged to read the definitive proxy
statement/prospectus, the offering prospectus, the offer document, as
amended, and published additional accompanying information in connection
with the exchange offer regarding the proposed business combination
transaction because they contain important information. You may obtain a
free copy of the definitive proxy statement/prospectus, the offering
prospectus and other related documents filed by NYSE Euronext and
Holding with the SEC on the SEC’s website at www.sec.gov. The definitive
proxy statement/prospectus and other documents relating thereto may also
be obtained for free by accessing NYSE Euronext’s website at
www.nyse.com. The offer document, as amended, and published additional
accompanying information in connection with the exchange offer are
available at Holding’s website at www.global-exchange-operator.com.
Holders of Deutsche Börse shares who have accepted the exchange offer
have certain withdrawal rights which are set forth in the offer document.
This document is neither an offer to purchase nor a solicitation of an
offer to sell shares of Holding, Deutsche Boerse AG or NYSE Euronext.
The final terms and further provisions regarding the public offer are
disclosed in the offer document that has been approved by the BaFin and
in documents that have been filed with the SEC.
No offering of securities shall be made except by means of a prospectus
meeting the requirements of Section 10 of the U.S. Securities Act of
1933, as amended, and applicable European regulations. The exchange
offer and the exchange offer document, as amended, shall not constitute
an issuance, publication or public advertising of an offer pursuant to
laws and regulations of jurisdictions other than those of Germany,
United Kingdom of Great Britain and Northern Ireland and the United
States of America. The relevant final terms of the proposed business
combination transaction will be disclosed in the information documents
reviewed by the competent European market authorities.
Subject to certain exceptions, in particular with respect to qualified
institutional investors (tekikaku kikan toshika) as defined in Article 2
para. 3 (i) of the Financial Instruments and Exchange Act of Japan (Law
No. 25 of 1948, as amended), the exchange offer will not be made
directly or indirectly in or into Japan, or by use of the mails or by
any means or instrumentality (including without limitation, facsimile
transmission, telephone and the internet) of interstate or foreign
commerce or any facility of a national securities exchange of Japan.
Accordingly, copies of this announcement or any accompanying documents
may not be, directly or indirectly, mailed or otherwise distributed,
forwarded or transmitted in, into or from Japan.
The shares of Holding have not been, and will not be, registered under
the applicable securities laws of Japan. Accordingly, subject to certain
exceptions, in particular with respect to qualified institutional
investors (tekikaku kikan toshika) as defined in Article 2 para. 3 (i)
of the Financial Instruments and Exchange Act of Japan (Law No. 25 of
1948, as amended), the shares of Holding may not be offered or sold
within Japan, or to or for the account or benefit of any person in Japan.
Participants in the Solicitation
NYSE Euronext, Deutsche Boerse AG, Holding and their respective
directors and executive officers and other members of management and
employees may be deemed to be participants in the solicitation of
proxies from NYSE Euronext stockholders in respect of the proposed
business combination transaction. Additional information regarding the
interests of such potential participants will be included in the
definitive proxy statement/prospectus and the other relevant documents
filed with the SEC.
Forward-Looking Statements
This document includes forward-looking statements about NYSE Euronext,
Deutsche Boerse AG, Holding, the enlarged group and other persons, which
may include statements about the proposed business combination, the
likelihood that such transaction could be consummated, the effects of
any transaction on the businesses of NYSE Euronext or Deutsche Boerse
AG, and other statements that are not historical facts. By their nature,
forward-looking statements involve risks and uncertainties because they
relate to events and depend on circumstances that may or may not occur
in the future. Forward-looking statements are not guarantees of future
performance and actual results of operations, financial condition and
liquidity, and the development of the industries in which NYSE Euronext
and Deutsche Boerse AG operate may differ materially from those made in
or suggested by the forward-looking statements contained in this
document. Any forward-looking statements speak only as at the date of
this document. Except as required by applicable law, none of NYSE
Euronext, Deutsche Boerse AG or Holding undertakes any obligation to
update or revise publicly any forward-looking statement, whether as a
result of new information, future events or otherwise.
Amsterdam, June 28, 2011
Alpha Beta Netherlands Holding N.V.
