
[Federal Register: August 25, 2008 (Volume 73, Number 165)]
[Notices]               
[Page 50061-50063]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25au08-87]                         

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-58367; File No. SR-NYSE-2008-75]

 
Self-Regulatory Organizations; New York Stock Exchange LLC; 
Notice of Filing and Immediate Effectiveness of Proposed Rule Change To 
Amend Section 303A.02(b) of the Listed Company Manual with respect to 
Two of Its Director Independence Tests

August 15, 2008.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that 
on August 12, 2008, the New York Stock Exchange

[[Page 50062]]

LLC (``NYSE'' or ``Exchange'') filed with the Securities and Exchange 
Commission (``Commission'' or ``SEC'') the proposed rule change as 
described in Items I, II, and III below, which Items have been 
substantially prepared by NYSE. The Commission is publishing this 
notice to solicit comments on the proposed rule change from interested 
persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to make amendments to two of the tests with 
respect to the independence of directors set forth in Section 
303A.02(b) of the Exchange's Listed Company Manual (the ``Manual''). 
The text of the proposed rule change is available on the Exchange's Web 
site (http://www.nyse.com), at the Exchange's Office of the Secretary 
and at the Commission's Public Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, NYSE 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 these statements may be examined at the places specified in 
Item IV below. NYSE has prepared summaries, set forth in Sections A, B, 
and C below, of the most significant aspects of such statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange proposes to make amendments to two of the tests with 
respect to the independence of directors set forth in Section 
303A.02(b) of the Manual.
Direct Compensation Test
    Section 303A.02(b)(ii) of the Manual provides that a director may 
not be deemed independent for purposes of Section 303A if such director 
has received, or has an immediate family member who has received, 
during any twelve-month period within the last three years, more than 
$100,000 in direct compensation from the listed company, other than 
director and committee fees and pension or other forms of deferred 
compensation for prior service (provided such compensation is not 
contingent in any way on continued service). NYSE proposes to increase 
the dollar threshold in this test from $100,000 to $120,000. This 
change reflects the SEC's August 2006 amendment to the dollar threshold 
applicable to related party transactions that must be disclosed under 
Item 404 of Regulation S-K.\3\ Prior to the SEC's amendment to Item 
404, the applicable threshold for disclosures was $60,000. The NYSE 
believes that the monetary threshold in its independence definition 
should be consistent with the amount in Regulation S-K Item 404. Using 
a consistent standard would enhance the NYSE's ability to assess 
compliance with the independent director requirements because companies 
are required to disclose compensation in excess of $120,000, but are 
not necessarily required to disclose compensation between $100,000 and 
$120,000.
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    \3\ See Securities Act Release No. 8732A (August 29, 2006).
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Auditor Test
    Additionally, NYSE is proposing to amend the bright line test set 
out in Section 303A.02(b)(iii) relating to a listed company's internal 
or external auditor. The test currently precludes a director from being 
deemed independent if:
     The director or an immediate family member is a current 
partner of a firm that is the company's internal or external auditor;
     The director is a current employee of such a firm;
     The director has an immediate family member who is a 
current employee of such a firm and who participates in the firm's 
audit, assurance or tax compliance (but not tax planning) practice; or
     The director or an immediate family member was within the 
last three years (but is no longer) a partner or employee of such a 
firm and personally worked on the listed company's audit within that 
time.
    NYSE's experience to date has demonstrated that the current 
standard with respect to immediate family members has had the effect of 
precluding a director from being deemed independent in cases even where 
an immediate family member had no relationship to the listed company's 
audit. For example, NYSE's current test has required a listed company's 
board to conclude that a director may no longer be deemed independent 
when the director's child took an entry-level job in the audit practice 
of the listed company's external auditor upon graduation from college, 
notwithstanding the fact that the child was a low-level employee in a 
different region and had no involvement with the listed company's 
audit.
    In addition, NYSE's proposed change will bring its standards more 
in line with the auditor tests utilized by Nasdaq and the American 
Stock Exchange.\4\
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    \4\ See NASDAQ Marketplace Rule 4200(a)(15)(F) and Amex Company 
Guide Section 803(A)(2)(f).
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    NYSE proposes to modify its current test with respect to a 
director's immediate family member to cover only an immediate family 
member who:
     Is a current partner of the company's internal or external 
auditor;
     Is a current employee of such a firm and personally works 
on the listed company's audit; or
     Was within the last three years a partner or employee of 
such a firm and personally worked on the listed company's audit within 
that time.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with Section 6(b) \5\ of the Act in general, and furthers the 
objectives of Section 6(b)(5) of the Act,\6\ in particular, in that it 
is designed to promote just and equitable principles of trade, to 
foster cooperation and coordination with persons engaged in regulating, 
clearing, settling, processing information with respect to, and 
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. 
The Exchange believes that the proposed amendment to Section 
303A.02(b)(iii) will help to perfect the mechanism of a free and open 
market in that it will conform the Exchange's approach to that of 
Nasdaq and Amex.
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    \5\ 15 U.S.C. 78f(b).
    \6\ 15 U.S.C. 78f(b)(5).
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    The Exchange believes that this amendment is consistent with the 
protection of investors and the public interest because the amended 
test will continue to bar a finding of independence where a director 
has any material relationship with the listed company. The proposed 
amendment to Section 303A.02(b)(ii) furthers the protection of 
investors and the public interest in that it adopts the Commission's 
own materiality threshold for related party transactions and will 
therefore provide a standard that is clear, straightforward, and easy 
for issuers to understand and apply.

[[Page 50063]]

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

    Written comments were neither solicited nor received.

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 from the date on which it was filed, 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 Section 19(b)(3)(A) of the Act \7\ and Rule 19b-
4(f)(6) thereunder.\8\
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    \7\ 15 U.S.C. 78s(b)(3)(A).
    \8\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)(iii) 
requires that a self-regulatory organization submit to the 
Commission written notice of its intent to file the proposed rule 
change, along with a brief description and text of 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 Commission notes that the Exchange has satisfied the 
five-day pre-filing notice requirement.
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    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 rule-comments@sec.gov. Please include 
File Number SR-NYSE-2008-75 on the subject line.

Paper Comments

     Send paper comments in triplicate to Secretary, Securities 
and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-NYSE-2008-75. 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 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-2008-75 and should be 
submitted on or before September 15, 2008.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\9\
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    \9\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Acting Secretary.
[FR Doc. E8-19591 Filed 8-22-08; 8:45 am]

BILLING CODE 8010-01-P
