47838 Federal Register / Vol. 74, No. 179 / Thursday, September 17, 2009 / Notices 

3See Securities Exchange Act Release No. 60422 

(August 3, 2009), 74 FR 39725. 

4 In approving this proposal, the Commission has 

considered the proposed rule’s impact on 

efficiency, competition and capital formation. See 

15 U.S.C. 78c(f). 

5 15 U.S.C. 78o–3(b)(6). 

6 15 U.S.C. 78s(b)(2) 

7 17 CFR 200.30–3(a)(12) 

1 15 U.S.C.78s(b)(1). 

2 15 U.S.C. 78a. 

3 17 CFR 240.19b–4. 

4NYSE Amex, a Delaware limited liability 

company, is an indirect wholly owned subsidiary 

of NYSE Euronext. 

5See Section 3.4 of the ‘‘Amended and Restated 

Bylaws of NYSE Euronext.’’ The provisions of any 

other internal policy documents of the Corporation 

containing substantially equivalent language will be 

modified to conform with the proposed Bylaw and 

Director Independence Policy changes. 6Securities Exchange Act Release No. 60542 

(August 19, 2009), 74 FR 43193 (August 26, 2009) 

(SR–NYSE–2009–60). 

7The Commission notes that Exhibit 5 is attached 

to the rule filing filed with the Commission, but not 

to this release. 

the scope of the rule. The proposed rule 

change was published for comment in 

the Federal Register on August 7, 2009.3

The Commission received no comments 

on the proposal. This order approves the 

proposed rule change. 

The Commission finds that the 

proposed rule change is consistent with 

the requirements of the Act and the 

rules and regulations thereunder 

applicable to a national securities 

association.4 In particular, the 

Commission finds that the proposed 

rule change is consistent with the 

provisions of Section 15A(b)(6) of the 

Act,5 which requires, among other 

things, that FINRA rules be designed to 

prevent fraudulent and manipulative 

acts and practices, to promote just and 

equitable principles of trade, and, in 

general, to protect investors and the 

public interest. The Commission 

believes that the proposed rule change 

should continue to protect investors and 

promote the maintenance of fair, orderly 

and efficient markets by modernizing 

and clarifying the regulations that apply 

when payments are made in connection 

with the publication or circulation of 

media that could have an effect on the 

market price of any security. The 

Commission notes that the types of 

media that could have an effect on the 

market price of a security have changed 

since NASD Rule 3330 was last 

amended. Therefore, the updating of the 

list of media in proposed FINRA Rule 

5230 will modernize the regulation. 

The Commission also notes that 

payments for the publication of 

information relating to securities are 

permitted in certain circumstances 

under Section 17(b) of the Securities Act 

and under NASD Rule 2711(h)(13). 

Therefore, the Commission believes that 

the amendment to the rule will clarify 

that proposed FINRA Rule 5230 is 

consistent with these and other 

regulations where such payments are 

explicitly permitted. 

It is therefore ordered, pursuant to 

Section 19(b)(2) of the Act,6 that the 

proposed rule change (SR–FINRA– 

2009–048) be, and it hereby is, 

approved. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.7

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–22371 Filed 9–16–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–60647; File No. SR– 

NYSEAmex–2009–60] 

Self-Regulatory Organizations; Notice 

of Filing and Immediate Effectiveness 

of a Proposed Rule Change by NYSE 

Amex LLC in Connection With the 

Proposal of NYSE Euronext To Require 

That at Least Three-Fourths of Its 

Directors Satisfy Independence 

Requirements 

September 10, 2009. 

Pursuant to Section 19(b)(1) 1 of the 

Securities Exchange Act of 1934 (the 

‘‘Act’’) 2 and Rule 19b–4 thereunder,3

notice is hereby given that, on 

September 4, 2009, NYSE Amex LLC 

(‘‘NYSE Amex’’ or the ‘‘Exchange’’) filed 

with the Securities and Exchange 

Commission (the ‘‘Commission’’) the 

proposed rule change as described in 

Items I, II and III below, which Items 

have been prepared by the selfregulatory organization. The 

Commission is publishing this notice to 

solicit comments on the proposed rule 

change from interested persons. 

I. Self-Regulatory Organization’s 

Statement of the Terms of Substance of 

the Proposed Rule Change 

The Exchange is submitting this rule 

filing in connection with the proposal of 

its ultimate parent, NYSE Euronext (the 

‘‘Corporation’’),4 to amend its bylaws 

and Director Independence Policy to 

require that at least three-fourths of the 

members of its Board of Directors shall 

satisfy the independence requirements 

for directors of the Corporation. 

Currently the bylaws and Director 

Independence Policy require that all 

members of the Board of Directors, other 

than the Chief Executive Officer and the 

Deputy Chief Executive Officer, shall 

satisfy the independence requirements.5

The proposed rule change is identical to 

a rule change filed by the New York 

Stock Exchange LLC (‘‘NYSE’’) that was 

recently approved by the Commission.6

The text of the proposed rule change is 

attached hereto as Exhibit 5,7 and is 

available on the Exchange’s Web site at 

http://www.nyse.com, at the Exchange’s 

principal office, and at the Public 

Reference Room of the Commission. 

II. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

In its filing with the Commission, the 

self-regulatory organization included 

statements concerning the purpose of, 

and basis for, the proposed rule change 

and discussed any comments it received 

on the proposed rule change. The text 

of those statements may be examined at 

the places specified in Item IV below. 

The Exchange has prepared summaries, 

set forth in sections A, B, and C below, 

of the most significant parts of such 

statements. 

A. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

1. Purpose 

Currently, the Bylaws of the 

Corporation, which is the ultimate 

parent company of the Exchange, 

require that ‘‘all members of the Board 

of Directors, other than the Chief 

Executive Officer and the Deputy Chief 

Executive Officer, shall satisfy the 

independence requirements for 

directors of the Corporation, as modified 

and amended by the Board of Directors 

from time to time.’’ Similarly, the 

Director Independence Policy of the 

Corporation states that ‘‘[e]ach Director 

(other than the Chief Executive Officer 

and the Deputy Chief Executive Officer), 

including the Chairman of the Board 

and the Deputy Chairman of the Board 

if not also the Chief Executive Officer or 

the Deputy Chief Executive Officer, 

shall be independent within the 

meaning of this Policy.’’ The 

Corporation desires to amend both 

documents to strike a more appropriate 

balance between the independence 

requirements and other qualifications of 

its directors. Specifically, the 

Corporation proposes to revise the 

independence standard in the Bylaws to 


cprice-sewell on DSK2BSOYB1PROD with NOTICES
Federal Register / Vol. 74, No. 179 / Thursday, September 17, 2009 / Notices 47839 

8The corresponding revised language in the 

Director Independence Policy would state, ‘‘At least 

three-fourths of the Directors shall be independent 

within the meaning of this Policy.’’ 

9There are currently 18 directors on the Board, 

including the Chief Executive Officer and the 

Deputy Chief Executive Officer. The Bylaws 

currently require 16 of the directors (i.e., all but the 

two aforementioned employees) to be independent. 

The proposed amendment to the Bylaws would 

require a minimum of 14 of the directors to be 

independent. 

10See ‘‘The NASDAQ OMX Group, Inc. Corporate 

Governance Guidelines,’’ Section III.B. 

(Independence of Non-Employee Directors). 

11See ‘‘NYSE Listed Company Manual,’’ Section 

303A.01 (Independent Directors). 

12See Securities Exchange Act Release No. 50699 

(November 18, 2004), 69 FR 71126 (December 8, 

2004), Section II.B.2 (Board Consisting of a Majority 

of Independent Directors). 

13 In its 2006 release approving the NYSE’s 

business combination with Archipelago Holdings, 

Inc. (the ‘‘Arca Approval Release’’), the Commission 

noted that it ‘‘* * * does not believe that there is 

only one method to satisfy the fair representation 

requirements of Section 6(b)(3) of the Act, and 

reviews each SRO proposal on its own terms to 

determine if it is consistent with the Act.’’ See 

Securities Exchange Act Release No. 53382 

(February 27, 2006), 71 FR 11251 (March 6, 2006) 

(File No. SR–NYSE–2005–77), 11259, note 97. In 

this regard, the ‘‘fair representation candidate’’ on 

the NYSE board is required by the NYSE’s operating 

agreement to be independent, and the Arca 

Approval Release notes that even a fully 

independent board could be consistent with the Act 

and the fair representation requirement, in which 

case ‘‘the candidate or candidates selected by 

members would have to be independent.’’ 71 FR at 

11260. Among other things, the NYSE board 

oversees NYSE Regulation, Inc., a not-for-profit 

independent subsidiary that conducts the 

regulatory function of NYSE on its behalf pursuant 

to contractual and other arrangements. 

Consequently, the Commission stated its conclusion 

in the Arca Approval Release that ‘‘[t]he NYSE’s 

proposed requirement that 20% of the directors of 

the boards of directors of New York Stock Exchange 

LLC, NYSE Market, and NYSE Regulation be chosen 

by members and the means by which they will be 

chosen satisfies the fair representation of members 

in the selection of directors and the administration 

of the exchange consistent with the requirements in 

Section 6(b)(3) of the Act.’’ 71 FR at 11259. 

14E.g., Section 3.2 (Certain Qualifications for the 

Board of Directors) of the Bylaws. 

15 15 U.S.C. 78f(b). 

16 15 U.S.C. 78f(b)(1). 

17 15 U.S.C. 78f(b)(5). 

provide that, ‘‘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.’’ 8 The three-fourths requirement 

will still adequately protect the 

independent judgment of the Board of 

Directors (‘‘Board’’), which the 

Corporation believes is essential to the 

quality of Board oversight, while 

permitting the Corporation to consider a 

broader range of experienced and 

knowledgeable individuals as 

directors.9 The current Bylaw provision 

eliminates from consideration as 

potential directors of the Corporation a 

substantial number of individuals who 

could contribute significantly to the 

deliberations of the Corporation’s Board 

by virtue of their knowledge, ability and 

experience. For example, an executive 

of a U.S. company listed on NYSE could 

not serve as a member of the Board. 

Such a restriction deprives the 

Corporation of the proven judgment and 

valuable insights that such individuals 

might contribute to the Board’s 

decision-making process. There are 

other categories of individuals who fail 

the independence requirements for 

other reasons, yet who nonetheless 

could make significant contributions as 

directors of the Corporation. 

As noted above, the proposed rule 

change is identical to a rule change filed 

by the NYSE that was recently approved 

by the Commission. 

The proposed three-fourths standard 

for independence remains higher than 

the majority standard that the 

Commission has accepted and approved 

in comparable circumstances. For 

example, the ‘‘Corporate Governance 

Guidelines’’ of the NASDAQ OMX 

Group, Inc., which is the parent 

company of the NASDAQ Stock Market 

LLC, state, ‘‘The Board of NASDAQ 

OMX is comprised of a majority of 

directors, who qualify as ‘independent 

directors’ under the Marketplace Rules 

of The NASDAQ Stock Market and 

Securities and Exchange Commission 

requirements.’’ 10 The NYSE’s own 

corporate governance standards for its 

listed companies provide that, ‘‘Listed 

companies must have a majority of 

independent directors.’’ 11 Finally, the 

Commission’s own 2004 release on 

‘‘Fair Administration and Governance of 

Self-Regulatory Organizations’’ 

proposed ‘‘that the board of each 

exchange and association be composed 

of a majority of independent 

directors.’’ 12 In the latter case, there 

would be no justification for holding the 

governing board of the ultimate parent 

of an exchange to a higher standard that 

the governing board of the exchange 

itself. Consequently, there is adequate 

precedent with respect to the proposed 

rule change. 

The proposed amendment to the 

Bylaws and Director Independence 

Policy will not alter or amend the 

standards by which the Corporation 

makes a determination regarding 

whether an individual director is 

independent. In addition, the proposed 

amendment will not affect in any way 

the independence requirements of the 

Exchange with respect to its directors or 

the director independence requirements 

of any of the other self-regulatory 

organizations for which the Corporation 

is the ultimate parent or of NYSE Group, 

Inc., the intermediate holding company, 

including in each case the number of 

required independent directors.13 The 

proposed amendment will also not 

affect in any way the other director 

qualification requirements set out in the 

Bylaws of the Corporation.14

2. Statutory Basis 

The proposed rule change is 

consistent with Section 6(b) 15 of the 

Act, in general, and furthers the 

objectives of Section 6(b)(1) 16 of the 

Act, which requires a national securities 

exchange to be so organized and have 

the capacity to carry out the purposes of 

the Act and to comply, and to enforce 

compliance by its members and persons 

associated with its members, with the 

provisions of the Act. The proposed rule 

change is also consistent with, and 

furthers the objectives of, Section 

6(b)(5) 17 of the Act, in that it is 

designed to prevent fraudulent and 

manipulative acts and practices, to 

promote just and equitable principles of 

trade, to foster cooperation and 

coordination with persons engaged in 

facilitating transactions in securities, to 

remove impediments to and perfect the 

mechanism of a free and open market 

and a national market system and, in 

general, to protect investors and the 

public interest. 

More specifically, the Exchange 

believes that, because the proposed rule 

change will permit the Corporation to 

consider a broader range of experienced 

and knowledgeable individuals to serve 

as directors of the Corporation while 

also preserving the principle that 

effective boards of directors exercise 

independent judgment in carrying out 

their responsibilities, it will thereby 

contribute to perfecting the mechanism 

of a free and open market and a national 

market system and is also consistent 

with the protection of investors and the 

public interest. 

B. Self-Regulatory Organization’s 

Statement on Burden on Competition 

The Exchange does not believe that 

the proposed rule change will impose 

any burden on competition that is not 

necessary or appropriate in furtherance 

of the purposes of the Act. 

C. Self-Regulatory Organization’s 

Statement on Comments on the 

Proposed Rule Change Received From 

Members, Participants, or Others 

No written comments were solicited 

or received with respect to the proposed 

rule change. 


cprice-sewell on DSK2BSOYB1PROD with NOTICES
47840 Federal Register / Vol. 74, No. 179 / Thursday, September 17, 2009 / Notices 

18 15 U.S.C. 78s(b)(3)(A). 

19 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– 

4(f)(6) requires a self-regulatory organization to give 

the Commission written notice of its intent to file 

the proposed rule change at least five business days 

prior to the date of filing of the proposed rule 

change, or such shorter time as designated by the 

Commission. The Exchange has satisfied this 

requirement. 

20 17 CFR 200.30–3(a)(12). 

1 15 U.S.C. 78s(b)(1). 

2 15 U.S.C. 78a. 

3 17 CFR 240.19b–4. 

4NYSE Arca, a Delaware corporation, is an 

indirect wholly-owned subsidiary of NYSE 

Euronext. 

5See Section 3.4 of the ‘‘Amended and Restated 

Bylaws of NYSE Euronext.’’ The provisions of any 

other internal policy documents of the Corporation 

containing substantially equivalent language will be 

modified to conform with the proposed Bylaw and 

Director Independence Policy changes. 

6Securities Exchange Act Release No. 60542 

(August 19, 2009), 74 FR 43193 (August 26, 2009) 

(SR–NYSE–2009–60). 

7The Commission notes that Exhibit 5 is attached 

to the rule filing filed with the Commission, but not 

to this release. 

III. Date of Effectiveness of the 

Proposed Rule Change and Timing for 

Commission Action 

Because the foregoing proposed rule 

change does not: (i) Significantly affect 

the protection of investors or the public 

interest; (ii) impose any significant 

burden on competition; and (iii) become 

operative for 30 days after the date of 

the filing, or such shorter time as the 

Commission may designate, if 

consistent with the protection of 

investors and the public interest, it has 

become effective pursuant to 19(b)(3)(A) 

of the Act 18 and Rule 19b–4(f)(6) 

thereunder.19

At any time within 60 days of the 

filing of the proposed rule change, the 

Commission may summarily abrogate 

such rule change if it appears to the 

Commission that such action is 

necessary or appropriate in the public 

interest, for the protection of investors, 

or otherwise in furtherance of the 

purposes of the Act. 

IV. Solicitation of Comments 

Interested persons are invited to 

submit written data, views, and 

arguments concerning the foregoing, 

including whether the proposed rule 

change is consistent with the Act. 

Comments may be submitted by any of 

the following methods: 

Electronic Comments 

• Use the Commission’s Internet 

comment form (http://www.sec.gov/ 

rules/sro.shtml); or 

• Send an e-mail to rulecomments@sec.gov. Please include File 

Number SR–NYSEAmex–2009–60 on 

the subject line. 

Paper Comments 

• Send paper comments in triplicate 

to Elizabeth M. Murphy, Secretary, 

Securities and Exchange Commission, 

100 F Street, NE., Washington, DC 

20549–1090. 

All submissions should refer to File 

Number SR–NYSEAmex–2009–60. This 

file number should be included on the 

subject line if e-mail is used. To help the 

Commission process and review your 

comments more efficiently, please use 

only one method. The Commission will 

post all comments on the Commission’s 

Internet Web site (http://www.sec.gov/ 

rules/sro.shtml). Copies of the 

submission, all subsequent 

amendments, all written statements 

with respect to the proposed rule 

change that are filed with the 

Commission, and all written 

communications relating to the 

proposed rule change between the 

Commission and any person, other than 

those that may be withheld from the 

public in accordance with the 

provisions of 5 U.S.C. 552, will be 

available for inspection and copying in 

the Commission’s Public Reference 

Room, 100 F Street, NE., Washington, 

DC 20549, on official business days 

between the hours of 10 a.m. and 3 p.m. 

Copies of the filing also will be available 

for inspection and copying at the 

principal office of the Exchange. All 

comments received will be posted 

without change; the Commission does 

not edit personal identifying 

information from submissions. You 

should submit only information that 

you wish to make available publicly. All 

submissions should refer to File 

Number SR–NYSEAmex–2009–60 and 

should be submitted on or before 

October 8, 2009. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.20

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–22370 Filed 9–16–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–60646; File No. SR– 

NYSEArca–2009–82] 

Self-Regulatory Organizations; Notice 

of Filing and Immediate Effectiveness 

of a Proposed Rule Change by NYSE 

Arca, Inc. in Connection With the 

Proposal of NYSE Euronext To Require 

That at Least Three-Fourths of Its 

Directors Satisfy Independence 

Requirements 

September 10, 2009. 

Pursuant to Section 19(b)(1) 1 of the 

Securities Exchange Act of 1934 (the 

‘‘Act’’) 2 and Rule 19b–4 thereunder,3

notice is hereby given that, on 

September 4, 2009, NYSE Arca, Inc. 

(‘‘NYSE Arca’’ or the ‘‘Exchange’’) filed 

with the Securities and Exchange 

Commission (the ‘‘Commission’’) the 

proposed rule change as described in 

Items I, II and III below, which Items 

have been prepared by the selfregulatory organization. The 

Commission is publishing this notice to 

solicit comments on the proposed rule 

change from interested persons. 

I. Self-Regulatory Organization’s 

Statement of the Terms of Substance of 

the Proposed Rule Change 

The Exchange is submitting this rule 

filing in connection with the proposal of 

its ultimate parent, NYSE Euronext (the 

‘‘Corporation’’),4 to amend its bylaws 

and Director Independence Policy to 

require that at least three-fourths of the 

members of its Board of Directors shall 

satisfy the independence requirements 

for directors of the Corporation. 

Currently the bylaws and Director 

Independence Policy require that all 

members of the Board of Directors, other 

than the Chief Executive Officer and the 

Deputy Chief Executive Officer, shall 

satisfy the independence requirements.5

The proposed rule change is identical to 

a rule change filed by the New York 

Stock Exchange LLC (‘‘NYSE’’) that was 

recently approved by the Commission.6

The text of the proposed rule change is 

attached hereto as Exhibit 5,7 and is 

available on the Exchange’s Web site at 

http://www.nyse.com, at the Exchange’s 

principal office, and at the Public 

Reference Room of the Commission. 

II. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

In its filing with the Commission, the 

self-regulatory organization included 

statements concerning the purpose of, 

and basis for, the proposed rule change 

and discussed any comments it received 

on the proposed rule change. The text 

of those statements may be examined at 

the places specified in Item IV below. 

The Exchange has prepared summaries, 

set forth in sections A, B, and C below, 

of the most significant parts of such 

statements. 


cprice-sewell on DSK2BSOYB1PROD with NOTICES