U.S.
SECURITIES AND EXCHANGE COMMISSION
Washington,
DC 20549
NOTICE
OF
EXEMPT SOLICITATION
Submitted
Pursuant to Rule 14a-6(g)(1)
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1.
Name of the Registrant:
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New
York Mercantile Exchange, Inc. (“NYMEX”)
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2.
Name of person relying on exemption:
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Cataldo
Capozza
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3.
Address of person relying on exemption:
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3738
Rachel Lane
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Naples,
FL 34103-3725
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4.
Written materials:
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The
following materials are attached:
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(a)
Letter
from Mr. Capozza to the Shareholders of NYMEX.
CATALDO
J.
CAPOZZA
Naples,
FL 34103-3752
(239)
261-2169
cjaycap@aol.com
November
30, 2005
TO
THE
SHAREHOLDERS OF NYMEX:
On
November 29, 2005, my counsel, Wolf Haldenstein Adler Freeman & Herz LLP, on
my behalf, served a demand to inspect the books and records of NYMEX Holdings,
Inc., and the New York Mercantile Exchange, Inc., pursuant to Section 220 of
the
Delaware General Corporation Law. I have received an inquiry about the request.
I have decided to file the demand as an amendment to my November 21, 2005,
Letter to the Shareholders of NYMEX. The demand is enclosed.
Best
regards,
Cataldo
J. Capozza
cc:
Mark
C.
Rifkin, Esquire
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WOLF
HALDENSTEIN ADLER FREEMAN & HERZ LLP
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FOUNDED
1888
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270
MADISON AVENUE
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NEW
YORK, NY 10016
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212-545-4600
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Symphony
Towers
750
B Street - Suite 2770
San
Diego, CA 92101
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Mark
C. Rifkin
212-545-4762
Fax
212-686-0114
rifkin@whafh.com
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625
North Flagler Drive
West
Palm Beach, FL 33401
Wolf
Haldenstein Adler Freeman & Herz LLC
656
West Randolph Street, Suite 500W
Chicago,
IL 60661
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| November 29, 2005 |
VIA
HAND DELIVERY
Christopher
K. Bowen, Esquire
General
Counsel and Chief Administrative Officer
NYMEX
HOLDINGS, INC.
One
North
End Avenue, World Financial Center
New
York,
NY 10282-1101
Re:
Books
and Records Demand
Dear
Mr.
Bowen:
This
letter is written on behalf of Cataldo J. Capozza, who is the owner of common
stock of NYMEX Holdings, Inc. (“NYMEX” or the “Company”). Mr. Capozza has owned
such stock since NYMEX was de-mutualized in 2000, and he has been a member
of
the exchange for twenty years. Attached hereto as Exhibit A is a true and
correct copy of the current list of NYMEX shareholders documenting Mr. Capozza’s
beneficial ownership of NYMEX common stock. Attached hereto as Exhibit B is
the
special power of attorney authorizing me to act on Mr. Capozza’s behalf in
connection with this Demand.
I
hereby
demand, pursuant to Section 220 of the Delaware General Corporation Law, that
the Company produce for examination, inspection and copying by the undersigned,
within five business days from the date of receipt hereof, during the usual
hours of business, NYMEX’s books and business records identified in Exhibit C
(the “Demand”). This Demand is for the period January 1, 2004, through the
present except as otherwise specifically provided. The purpose of the Demand
is
to determine: (a) whether the consideration for the proposed sale of 10 percent
of the equity of NYMEX to General Atlantic is fair and reasonable; (b) whether
the directors gave adequate consideration to the proposed sale to General
Atlantic or other alternative transactions; (c) whether the directors fulfilled
their fiduciary duties in connection with the proposed sale to General Atlantic;
(d) whether the proposed changes to the NYMEX
bylaws
and certificate of incorporation are in the best interest of the shareholders;
(e) whether the directors fulfilled their fiduciary duties in connection with
the proposed changes to the bylaws and certificate of incorporation as well
as
the proposed capital structure of NYMEX; (f) how management intends to
distribute 208,160,000 shares of common and preferred stock; (g) management’s
plan for the initial public offering of NYMEX securities; (h) whether the
directors have fulfilled their fiduciary duties in connection with any planned
or contemplated initial public offering of NYMEX securities; (i) what provision
has been made to protect open outcry; and (j) what provision has been made
for
the continuation of NYMEX management or the terms of employment of the executive
officers and directors of NYMEX.
Shareholder
Capozza further requests that the Company respond to the Demand made herein
within five business days from the date of receipt hereof to Mark C. Rifkin,
Esquire, Wolf Haldenstein Adler Freeman & Herz LLP, 270 Madison Avenue, New
York, NY 10016, advising when and where the examination, inspection, and copying
of produced documents may be made. This Demand is made under oath.
| Very truly yours, | |
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s/
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| Mark C. Rifkin |
Sworn
to
and Subscribed Before Me
This
29th
day of
November, 2005
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s/ Michael
Jaffe
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Notary
Public
My
Commission Expires:
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Attachments.
[THIS
DOCUMENT INTENTIONALLY OMITTED]
EXHIBIT
A
SPECIAL
POWER OF ATTORNEY
KNOW
ALL
PERSONS BY THESE PRESENTS, that Cataldo J. Capozza, of Naples, Florida, does
hereby make, constitute, and appoint Wolf Haldenstein Adler Freeman & Herz
LLP, of New York, New York, and any person designated by them, to act as true
and lawful attorney-in-fact for him, in his name, place, and stead, in all
matters regarding the examination of the books and records of NYMEX Holdings,
Inc., and New York Mercantile Exchange, Inc., and giving an granting unto said
attorney-in-fact full power and authority to perform all and every act and
thing
whatsoever requisite, necessary, and proper to be done in and without the
premises, as fully, to all intents and purposes as they might or could do,
with
full power of substitution and revocation, hereby ratifying and confirming
all
that his attorney or the substitute shall lawfully do or cause to be
done.
IN
WITNESS WHEREOF, I have hereto set my hand this 29th
day of
November, 2005.
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s/
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| CATALDO J. CAPOZZA |
ACNKOWLEDGEMENT
On
this
29th
day of
November, 2005, before me, Cataldo
Capozza,
notary
public, personally appeared Cataldo J. Capozza and proved to me on the basis
of
satisfactory evidence to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized
capacity, and that by his signature on the instrument, he executed the
instrument.
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s/ Sarah
J.
Beaumont
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| Notary Public |
EXHIBIT
B
EXHIBIT
C
DOCUMENTS
REQUESTED
All
documents relating to or addressing any one or more of the following:
1.
All
documents constituting, evidencing, or relating to the offer from General
Atlantic LLC and/or its investment funds (collectively “GA”) to acquire a
portion of the equity of NYMEX Holdings, Inc. (together with the New York
Mercantile Exchange, Inc., “NYMEX”), and all drafts thereof.
2.
All
drafts and final copies of the Preliminary Proxy Statement filed by NYMEX with
the Securities and Exchange Commission on or about November 23,
2005.
3.
Copies
of
the Preliminary Proxy Statement provided to and approved by the Board of
Directors of NYMEX, or any director or committee thereof, on or before November
23, 2005.
4.
All
documents constituting, evidencing, or relating to any resolution of the Board
of Directors of NYMEX, or any member or committee thereof, concerning the GA
Proposal or any transaction described in the Preliminary Proxy Statement filed
by NYMEX with the Securities and Exchange Commission on or about November 23,
2005.
5.
All
documents constituting, evidencing, or relating to the terms of the GA
acquisition or any transaction described in the Preliminary Proxy Statement
filed by NYMEX with the Securities and Exchange Commission on or about November
23, 2005, that were approved by the Board of Directors, or any member or
committee thereof, on or before November 23, 2005.
6.
All
documents constituting, evidencing, or relating to negotiations between GA
and
NYMEX regarding the terms and conditions of the proposed sale of a portion
of
the equity of NYMEX to GA (the “GA Proposal”).
7.
All
documents evidencing or relating to consideration or approval by the NYMEX
Board
of Directors, or any member or committee thereof, of the GA
Proposal.
8.
All
documents constituting, evidencing, or relating to offers from other investors
to acquire a portion of the equity of NYMEX or otherwise to invest in
NYMEX.
9.
All
documents constituting, evidencing, or relating to negotiations between NYMEX
and any other investor regarding the terms and conditions of the proposed sale
of a portion of the equity of NYMEX to or investment in NYMEX by each such
other
investor.
10. All
documents evidencing or relating to consideration or approval by the NYMEX
Board
of Directors, or any member or committee thereof, of any other investor’s
proposed purchase of a portion of the equity of or investment in
NYMEX.
11. All
documents constituting, evidencing, or relating to the engagement by the NYMEX
Board of Directors, or any member or committee thereof, of any financial
consultant or advisor concerning the GA Proposal or any offers from other
investors to acquire a portion of the equity of NYMEX or otherwise to invest
in
NYMEX.
12. All
documents constituting, evidencing, or relating to any valuation or other
estimate of the worth or value of the equity of NYMEX, or any fraction or
portion of the equity of NYMEX, in a public or private sale given to or
considered by the NYMEX Board of Directors or any member or committee
thereof.
13. All
documents constituting, evidencing, or relating to a fairness opinion or other
written report or representation by any financial consultant or concerning
the
GA Proposal or any offers from other investors to acquire a portion of the
equity of NYMEX or otherwise to invest in NYMEX.
14. All
documents evidencing or relating to consideration of or approval by the NYMEX
Board of Directors, or any member or committee thereof, relating to executive
compensation for the previous six years.
15. All
documents evidencing or relating to consideration or approval by the NYMEX
Board
of Directors, or any member or committee thereof, relating to employment
contracts for any NYMEX director or executive officer, including without
limitation any agreement or understanding regarding such employment following
the GA acquisition.
16. All
documents constituting, evidencing, or relating to communications between NYMEX
and GA concerning who will serve as directors or executive officers of NYMEX
following the GA acquisition.
17. All
documents constituting, evidencing, or relating to any consideration by the
NYMEX Board of Directors, or any member or committee thereof, of an initial
public offering of NYMEX securities.
18. All
documents constituting, evidencing, or relating to any communication between
the
NYMEX Board of Directors, or any member or committee thereof, and any investment
banker, financial advisor, or other person concerning an initial public offering
of NYMEX securities.
19. All
documents evidencing or relating to any planned or proposed
amendment,
modification,
or restatement of the certificate of incorporation of NYMEX, including the
New
Exchange Certificate of Incorporation.
20. All
documents evidencing or relating to any consideration by the NYMEX Board of
Directors, or any member or committee thereof, of any planned or proposed
amendment, modification, or restatement of the certificate of incorporation
of
NYMEX, including the New Exchange Certificate of Incorporation.
21. All
documents evidencing or relating to the protection of open outcry for some
period of time in the future.
22. All
documents constituting, evidencing, or relating to the consideration or approval
by the NYMEX Board of Directors, or any member or committee thereof, of any
provision to protect open outcry for some period of time in the
future.
23. All
documents evidencing or relating to any planned or proposed amendment,
modification, or restatement of the bylaws of NYMEX, including the New Exchange
Bylaws.
24. All
documents evidencing or relating to any consideration by the NYMEX Board of
Directors, or any member or committee thereof, of any planned or proposed
amendment, modification, or restatement of the bylaws of NYMEX, including the
New Exchange Bylaws.
25. All
documents evidencing or relating to the creation, issuance, sale, or other
disposition of newly-created Series A Cumulative Redeemable Convertible
Preferred Stock.
26. All
documents constituting, evidencing, or relating to any consideration by the
NYMEX Board of Directors, or any member or committee thereof, concerning the
creation, issuance, sale, or other disposition of newly-created Series A
Cumulative Redeemable Convertible Preferred Stock.
27. All
documents evidencing or relating to the effective 90,000-for-1 stock split.
28. All
other
documents constituting, evidencing, or relating to any consideration by the
NYMEX Board of Directors, or any member or committee thereof, concerning the
effective 90,000-for-1 stock split.
29. All
documents evidencing or relating to the change in the capital structure of
NYMEX.
30 All
documents constituting, evidencing, or relating any consideration by the NYMEX
Board of Directors, or any member or committee thereof, concerning the change
in
the capital structure of NYMEX.
31. All
documents concerning or relating to the actual, planned, or proposed sale,
distribution, or other disposition of 200,000,000 shares of NYMEX common stock
and 8,160,000 shares of NYMEX Series A Preferred Stock.
32. All
documents constituting, evidencing, or relating to any consideration by the
NYMEX Board of Directors, or any member or committee thereof, concerning the
actual, planned, or proposed sale, distribution, or other disposition of
200,000,000 shares of NYMEX common stock and 8,160,000 shares of NYMEX Series
A
Preferred Stock.
33. All
documents concerning or relating to the actual, planned, or proposed de-stapling
of the NYMEX common stock from the Class A memberships in the
exchange.
34. All
documents constituting, evidencing, or relating any consideration by the NYMEX
Board of Directors, or any member or committee thereof, concerning the actual,
planned, or proposed de-stapling of the NYMEX common stock from the Class A
memberships in the exchange.
35. Documents
sufficient to identify which directors voted in favor of and which directors
voted against the proposed transactions described in the preliminary proxy
statement NYMEX filed with the SEC on or about November 23, 2005.
36. All
documents constituting, evidencing, or relating to any agreement between NYMEX
and Vincent Viola concerning the GA Proposal or any other sale of all or a
portion of the equity of NYMEX to a third-party, or the amendment, modification,
or termination thereof.
37. All
documents constituting, evidencing, or relating to any agreement between NYMEX,
GA, or any other person or entity (including Richard Schaeffer) concerning
a
finder’s fee or other compensation for the GA Proposal or any other sale of all
or a portion of the equity of NYMEX to a third-party, or the amendment,
modification, or termination thereof.
38. All
documents relating to GapStar, LLC, its business, or its involvement with the
GA
Proposal or any transaction described in the Preliminary Proxy Statement filed
by NYMEX with the Securities and Exchange Commission on or about November 23,
2005.