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The future of the NYSE: A shareholder dilemma

April 13, 2011, 1:00 PM UTC

There seems to be little stopping the New York Stock Exchange in going ahead with its planned merger with Deutsche Bourse — not even the promise of more money. The NYSE board’s unequivocal rejection this week of an alternate ties up with the Nasdaq and the InterContinental Exchange has put a virtual “SOLD” sign on the exchange floor in downtown New York.

The only hope in blocking this merger now would have to come from the NYSE shareholders, who have just now started to raise concerns about the NYSE’s intransigence on the matter.

It seems like it would have been an easy sell. Rival exchanges Nasdaq and ICE came together to bid for the NYSE after the 219-year-old exchange agreed to be sold to Deutsche Bourse for $10 billion. The Nasdaq and ICE offered a hefty 19% premium. But the NYSE was not having it. It refused to open its books to the Nasdaq consortium and rejected its offer outright.

Under normal circumstances, the board would be forced to take the higher offer, evoking the board’s so-called “Revlon duties,” which require it to accept the highest bidder in any takeover fight. But the Deutsche Bourse deal has been structured in a way that makes it a merger as opposed to a sale. So even though the Deutsche Bourse would have a 60% controlling stake in the combined company, the deal has been classified as a “strategic merger of equals” and not a takeover. That means the board could reject the Nasdaq/ICE bid without requiring Deutsche Bourse to raise its offer.

The next logical step for the Nasdaq (NDAQ) group at this point would be to go hostile and try to get some friendly board members elected to the NYSE’s board. It would run a slate of its own board members at the NYSE’s (NYX) annual meeting and let the shareholders vote, raising the drama at what is usually a very routine meeting. But the Nasdaq missed the deadline to put up its own slate of directors at the annual meeting, which is scheduled for the end of this month. NYSE shareholders also lack the ability to call special meetings for board members. That means that the Nasdaq and ICE would have to wait until next year’s annual meeting to try and oust some of the NYSE’s board members — way too late to make any difference.

Despite the uphill battle, the Nasdaq and ICE appear committed to pushing forward with this deal, according to a person with knowledge of the situation. After all, there is only one NYSE, so this is literally a chance of a lifetime. The battleground would now take place in the offices of the NYSE’s largest shareholders, with both sides jockeying for votes. The shareholders will vote on the merger in June, giving both sides just a couple of months to rally their supporters. Only a simple majority is needed, so the NYSE will need to make an airtight case in explaining why shareholders should take a lower price.

Weighing the offers

The Deutsche Bourse deal would move the company away from its traditional equity trading and listings business and focus more on derivatives trading, which is seen as the last frontier in the exchange space. The combined company would hold a virtual monopoly in European derivatives trading, which is a much higher margin business than equity trading in the US.

On the flip side, the Nasdaq/ICE deal would effectively split the NYSE into two parts, with ICE taking the NYSE’s US derivatives unit and the Nasdaq taking its equity unit and listings business. That deal would see the Nasdaq in control of virtually all US listings, which is also a high margin business.

The NYSE claimed that one of the reasons why it rejected the Nasdaq bid out of hand was due to antitrust concerns. But not everyone is buying that argument. “In equity trading there is so much competition out there that I don’t think there is anyone who can argue antitrust concerns on that front,” says Adam Sussman, an analyst at the Tabb Group.
And the Deutsche Bourse deal is not exactly risk-free on the antitrust front, either. European regulators could force the company to sell off valuable assets and decrease its exposure to the lucrative derivatives space in order to approve the deal. Shareholders will therefore need to make a bet on which deal has the best chance of reaping value once the regulators have their say.

The NYSE management team, lead by chief executive Duncan Niederauer, has a strong incentive to push for the Deutsche Bourse deal. He would retain a big role in the combined company and could have the chance to lead it at some point. Under a deal with Nasdaq, Niederauer and his lieutenants would almost certainly be shown the door. Although not poor — the top execs could walk away with $95 million. Shareholders that like the current management team would be more inclined to vote for the Deutsche Bourse deal, while those who are more lukewarm on it would lean toward the Nasdaq/ICE deal.

But the biggest factor will probably be whether the shareholders are long-term or short-term holders of the stock. Those that are long-term holders and who buy into the idea that derivatives are the future, will probably support the Deutsche Bourse deal. Those that want to grab the money and run will side with the Nasdaq/ICE deal.

Although the Deutsche Bourse has said it will not raise its price, it may have to eat its words and do so anyway in the next few weeks in order to win over some large institutional shareholders. The first showdown will be on April 28th when shareholders meet up for the NYSE’s annual meeting. A rowdy reception for the board could shake its resolve, forcing them to either take another look at the Nasdaq offer or push its new German partners to pony up some more dough.

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