[Federal Register Volume 73, Number 164 (Friday, August 22, 2008)]
[Notices]
[Pages 49725-49726]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-19551]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-58378; File No. SR-Amex-2008-67]


Self-Regulatory Organizations; American Stock Exchange LLC; 
Notice of Filing and Immediate Effectiveness of Proposed Rule Change 
Modifying the Definition of ``Independent Director'' in the Amex 
Company Guide

August 18, 2008.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 
1934, as amended (``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is 
hereby given that on August 15, 2008, the American Stock Exchange LLC 
(``Amex'' or ``Exchange'') filed with the Securities and Exchange 
Commission (``Commission'') the proposed rule change as described in 
Items I, II and III below, which Items have been prepared by the 
Exchange. 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)(l).
    \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 amend Section 803 of the Amex Company 
Guide (the ``Company Guide'') to modify the definition of ``independent 
director.'' The text of the proposed rule change is available on the 
Amex's Web site at http://www.amex.com, the Office of the Secretary, 
the Amex 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, the Amex 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. The Amex 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 the 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    Section 803(A)(2)(b) of the Company Guide generally precludes a 
director of a listed issuer from being considered ``independent'' if 
the director (or an immediate family member of a director) received 
more than $100,000 in compensation from the issuer or any parent or 
subsidiary of the issuer within any twelve-month period in the three 
years preceding the determination of the director's independence 
status. The Exchange proposes to raise this amount to $120,000 to 
conform its independence standard in this respect with a NASDAQ Stock 
Market LLC (``Nasdaq'') rule change just approved by the Commission and 
a similar proposal submitted and pending before the Commission by the 
New York Stock Exchange LLC (``NYSE'').\3\
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    \3\ See Securities Exchange Act Release Nos. 58335 (August 8, 
2008) (SR-NASDAQ-2008-053) (approving similar modifications to 
NASDAQ Rule 4200(a)(15)(B) and IM-4200) (Release No. 34-58335); and 
58367 (August 15, 2008) (proposing similar modifications to Section 
303A.02 of the NYSE Listed Company Manual).
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    In addition, the proposed change will harmonize the Exchange's 
independence standards with the existing $120,000 disclosure threshold 
applicable to related party transactions set by the Commission in 
Regulation S-K, Item 404.\4\ Use of this consistent standard will 
enhance the Exchange's ability to assess compliance with the 
independent director requirements because listed issuers are uniformly 
required under Item 404 of Regulation S-K to disclose compensation to 
directors in excess of $120,000, but are not necessarily required to 
disclose compensation between $100,000 and $120,000. Further, the 
Exchange believes that by making its ``bright line'' standard with 
respect to the maximum amount of compensation a director (or an 
immediate family member of a director) can receive from the issuer (or 
any parent or subsidiary) consistent with the equivalent standard of 
Nasdaq and proposed by NYSE, it will provide a uniform standard for 
issuers to understand and apply. However, the Exchange notes that even 
if a director passes the ``bright line'' standard as proposed to be 
amended, an issuer's board of directors must still make an affirmative 
determination that such director has no relationship with the issuer 
that would interfere with the director's exercise of independent 
judgment in carrying out the responsibilities of a director.\5\
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    \4\ See 17 CFR 229.404 and 17 CFR 228.404; see also Securities 
Exchange Act Release No. 54302A (August 29, 2006), 71 FR 53158 
(September 8, 2006).
    \5\ See Section 803(A)(2) of the Company Guide.

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[[Page 49726]]

2. Statutory Basis
    The proposed rule change is consistent with Section 6(b) of the 
Act,\6\ in general, and furthers the objectives of Section 6(b)(5) of 
the Act,\7\ in particular, in that it is designed to prevent fraudulent 
and manipulative acts and practices, to promote just and equitable 
principles of trade, 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. Specifically, 
the proposal will align the Exchange's independent director standards 
with those of Nasdaq and NYSE, as well as with the Commission's 
disclosure requirements, thereby providing a uniform standard for 
issuers to understand and apply.
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    \6\ 15 U.S.C. 78f(b).
    \7\ 15 U.S.C. 78f(b)(5).
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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.

C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants or Others

    The Exchange did not receive any written comments on the proposed 
rule change.

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    The Amex has designated the proposed rule change as one that: (1) 
Does not significantly affect the protection of investors or the public 
interest; (2) does not impose any significant burden on competition; 
and (3) does not become operative for 30 days from the date of filing, 
or such shorter time as the Commission may designate if consistent with 
the protection of investors and the public interest. In addition, as 
required under Rule 19b-4(f)(6)(iii),\8\ the Amex provided the 
Commission with written notice of its intention to file the proposed 
rule change, along with a brief description of the text of the proposed 
rule change, at least five business days prior to filing the proposal, 
or such shorter time as designated by the Commission.\9\ Therefore, the 
proposed rule change has become effective pursuant to Section 
19(b)(3)(A) of the Act \10\ and Rule 19b-4(f)(6) thereunder.\11\
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    \8\ 17 CFR 240.19b-4(f)(6)(iii).
    \9\ The Exchange has requested that the Commission waive the 5-
day pre-filing notice requirement under Rule 19b-4(f)(6)(iii) given 
that the instant rule filing was originally made pursuant to Section 
19(b)(2) of the Act on August 13, 2008, and Commission staff 
requested on August 14, 2008 that the filing be re-submitted 
pursuant to Section 19(b)(3)(A). The Commission grants such waiver.
    \10\ 15 U.S.C. 78s(b)(3)(A).
    \11\ 17 CFR 240.19b-4(f)(6).
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    The Amex has further requested the Commission to waive the 30-day 
operative delay. The Commission hereby grants Amex's request.\12\ 
Waiving the 30-day operative delay is consistent with the protection of 
investors and the public interest because the Amex proposal is 
consistent with a proposal by Nasdaq that recently was approved by the 
Commission.\13\ The Commission notes that no comments were received on 
the Nasdaq proposal. Therefore, the Commission believes that waiving 
the 30-day operative delay is consistent with the protection of 
investors and the public interest and designates the proposed rule 
change as operative upon filing.
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    \12\ For purposes of waiving the 30-day operative delay, the 
Commission has considered the proposal's impact on efficiency, 
competition, and capital formation. 15 U.S.C. 78c(f).
    \13\ See Release No. 34-58335, supra note 3.
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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 [email protected]. Please include 
File Number SR-Amex-2008-67 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-Amex-2008-67. 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-Amex-2008-67 and should be 
submitted on or before September 12, 2008.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\14\
Florence E. Harmon,
Acting Secretary.
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    \14\ 17 CFR 200.30-3(a)(12).
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 [FR Doc. E8-19551 Filed 8-21-08; 8:45 am]
BILLING CODE 8010-01-P