Federal Register / Vol. 74, No. 135 / Thursday, July 16, 2009 / Notices 34609 

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

6 15 U.S.C. 78f(b)(4). 

7 15 U.S.C. 78s(b)(3)(A)(ii). 

8 17 C.F.R. 240.19b–4(f)(2). 9 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. 

4The NYSE, a New York 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. 

permits are occupied by users that don’t 

engage in meaningful trading on CBSX, 

it could be at the expense of a potential 

permit holder that might be willing to 

add meaningful liquidity to the CBSX 

marketplace. 

2. Statutory Basis 

The proposed rule change is 

consistent with Section 6(b) of the 

Securities Exchange Act of 1934 

(‘‘Act’’), 5 in general, and furthers the 

objectives of Section 6(b)(4) 6 of the Act 

in particular, in that it is designed to 

provide for the equitable allocation of 

reasonable dues, fees, and other charges 

among CBOE members and other 

persons using its facilities. 

B. Self-Regulatory Organization’s 

Statement on Burden on Competition 

CBOE does not believe that the 

proposed rule change will impose any 

burden on competition 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. 

III. Date of Effectiveness of the 

Proposed Rule Change and Timing for 

Commission Action 

The proposed rule change is 

designated by the Exchange as 

establishing or changing a due, fee, or 

other charge, thereby qualifying for 

effectiveness on filing pursuant to 

Section 19(b)(3)(A)(ii) 7 of the Act and 

subparagraph (f)(2) of Rule 19b–4 8

thereunder. 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 proposal 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 

No. SR–CBOE–2009–045 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 No. 

SR–CBOE–2009–045. 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 such filing also will be 

available for inspection and copying at 

the principal office of CBOE. 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 No. 

SR–CBOE–2009–045 and should be 

submitted on or before August 6, 2009. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.9

Elizabeth M. Murphy, 

Secretary. 

[FR Doc. E9–16858 Filed 7–15–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–60261; File No. SR–NYSE– 

2009–60] 

Self-Regulatory Organizations; Notice 

of Filing of Proposed Rule Change by 

New York Stock Exchange LLC in 

Connection With the Proposal of NYSE 

Euronext To Require That at Least 

Three-Fourths of Its Directors Satisfy 

Independence Requirements 

July 8, 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 June 23, 

2009, New York Stock Exchange LLC 

(‘‘NYSE’’ 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 text of the proposed rule change is 

attached hereto as Exhibit 5 [sic], 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. 


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34610 Federal Register / Vol. 74, No. 135 / Thursday, July 16, 2009 / Notices 

6The 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.’’ 

7There 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. 8See ‘‘The NASDAQ OMX Group, Inc. Corporate 

Governance Guidelines,’’ Section III.B. 

(Independence of Non-Employee Directors). 

9See ‘‘NYSE Listed Company Manual,’’ Section 

303A.01 (Independent Directors). 

10See 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). 

11 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. 

12E.g., Section 3.2 (Certain Qualifications for the 

Board of Directors) of the Bylaws. 

13 15 U.S.C. 78f(b). 

14 15 U.S.C. 78f(b)(5). 

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 the 

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 

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.’’ 6 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.7 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. 

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.’’ 8 The NYSE’s own 

corporate governance standards for its 

listed companies provide that, ‘‘Listed 

companies must have a majority of 

independent directors.’’ 9 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.’’ 10 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 than 

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.11 The 

proposed amendment will also not 

affect in any way the other director 

qualification requirements set out in the 

Bylaws of the Corporation.12

2. Statutory Basis 

The proposed rule change is 

consistent with Section 6(b) 13 of the 

Act, in general, and furthers the 

objectives of Section 6(b)(5) 14 in 

particular 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 


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Federal Register / Vol. 74, No. 135 / Thursday, July 16, 2009 / Notices 34611 

15 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

3 ISE began trading FX options on April 17, 2007 

pursuant to Commission approval. See Securities 

Exchange Act Release No. 55575 (April 3, 2007), 72 

FR 17963 (April 10, 2007) (SR–ISE–2006–59) (the 

‘‘FX Options Filing’’). 

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. 

III. Date of Effectiveness of the 

Proposed Rule Change and Timing for 

Commission Action 

Within 35 days of the date of 

publication of this notice in the Federal 

Register or within such longer period (i) 

as the Commission may designate up to 

90 days of such date if it finds such 

longer period to be appropriate and 

publishes its reasons for so finding or 

(ii) as to which the self-regulatory 

organization consents, the Commission 

will: 

(A) By order approve the proposed 

rule change, or 

(B) Institute proceedings to determine 

whether the proposed rule change 

should be disapproved. 

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–NYSE–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–NYSE–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 

Section, 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–NYSE–2009–60 and should 

be submitted on or before August 6, 

2009. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.15

Elizabeth M. Murphy, 

Secretary. 

[FR Doc. E9–16857 Filed 7–15–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–60274; File No. SR–ISE– 

2009–48] 

Self-Regulatory Organizations; 

International Securities Exchange, 

LLC; Notice of Filing and Immediate 

Effectiveness of Proposed Rule 

Change Relating to Foreign Currency 

Options Closing Settlement Values 

July 9, 2009. 

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

Securities Exchange Act of 1934 (the 

‘‘Act’’),1 and Rule 19b–4 thereunder,2

notice is hereby given that on July 2, 

2009, the International Securities 

Exchange, LLC (the ‘‘Exchange’’ or the 

‘‘ISE’’) filed with the Securities and 

Exchange Commission the proposed 

rule change as described in Items I, II, 

and III below, which items have been 

prepared by the self-regulatory 

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 ISE proposes to amend its rules 

regarding Foreign Currency Options 

(‘‘FX Options’’).3 The text of the 

proposed rule amendment is as follows, 

with deletions in [brackets] and 

additions italicized: 

Rule 2212. Foreign Currency Options 

Closing Settlement Value 

(a) The closing settlement value for 

foreign currency options shall be 

determined by using the WM/Reuters 

Intraday Spot rate [day’s announced 

Noon Buying Rate, as determined by the 

Federal Reserve Bank of New York,] on 

the last trading day during expiration 

week. [If the Noon Buying Rate is not 

announced by 5 p.m. Eastern time, the 

closing settlement value will be the 

most recently announced Noon Buying 

Rate, unless the Exchange determines to 

apply an alternative closing settlement 

value as a result of extraordinary 

circumstances. In the event the Noon 

Buying Rate is not published for an 

underlying currency, the Exchange will 

apply the WM/Reuters Closing Spot rate 

to determine the closing settlement 

value. If the Federal Reserve Bank of 

New York determines to publish a Noon 


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