Public Company Accounting Oversight Board; Notice of Filing of Proposed Rule and Amendment No. 1 Amending Bylaws, 408-412 [E4-3923]
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Federal Register / Vol. 70, No. 2 / Tuesday, January 4, 2005 / Notices
Brief description of amendment: The
amendment revised the Safety Limit
Minimum Critical Power Ratio values
for two recirculation loop and one
recirculation loop operation for all fuel
types to be used in the core.
Date of issuance: December 22, 2004.
Effective date: As of the date of
issuance, to be implemented within 60
days.
Amendment No.: 158.
Facility Operating License No. NPF–
57: This amendment revised the
Technical Specifications.
Date of initial notice in Federal
Register: June 22, 2004 (69 FR 34704).
The September 9, 2004 and December 2,
2004 letters provided clarifying
information that did not change the
initial proposed no significant hazards
consideration determination or expand
the application beyond the scope of the
original Federal Register notice.
The Commission’s related evaluation
of the amendment is contained in a
Safety Evaluation dated December 22,
2004.
No significant hazards consideration
comments received: No.
PSEG Nuclear LLC, Docket No. 50–354,
Hope Creek Generating Station, Salem
County, New Jersey
Date of application for amendment:
March 31, 2004, as supplemented by
letters dated August 9, 2004, and
October 20, 2004.
Brief description of amendment: The
amendment created a Technical
Specification (TS) for the Oscillation
Power Range Monitor system.
Additionally, it revised TS 3/4.4.1 to
remove Thermal Hydraulic instabilityrelated limiting conditions for operation
and required actions.
Date of issuance: December 22, 2004.
Effective date: As of the date of
issuance, to be implemented within 60
days.
Amendment No.: 159.
Facility Operating License No. NPF–
57: This amendment revised the TSs.
Date of initial notice in Federal
Register: August 3, 2004 (69 FR 46588).
The August 9, 2004, and October 20,
2004 letters provided clarifying
information that did not change the
initial proposed no significant hazards
consideration determination or expand
the application beyond the scope of the
original Federal Register notice.
The Commission’s related evaluation
of the amendment is contained in a
Safety Evaluation dated December 22,
2004.
No significant hazards consideration
comments received: No.
Dated at Rockville, Maryland, this 27th day
of December 2004.
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For the Nuclear Regulatory Commission.
James E. Lyons,
Acting Director, Division of Licensing Project
Management, Office of Nuclear Reactor
Regulation.
[FR Doc. 05–2 Filed 1–3–05; 8:45 am]
BILLING CODE 7590–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–50936; File No. PCAOB–
2004–02]
Public Company Accounting Oversight
Board; Notice of Filing of Proposed
Rule and Amendment No. 1 Amending
Bylaws
December 27, 2004.
Pursuant to section 107(b) of the
Sarbanes-Oxley Act of 2002 (the ‘‘Act’’),
notice is hereby given that on March 18,
2004, the Public Company Accounting
Oversight Board (the ‘‘Board’’ or the
‘‘PCAOB’’) filed with the Securities and
Exchange Commission (the
‘‘Commission’’) the proposed rule
amendments described in Items I and II
below, which items have been prepared
by the Board and are presented here in
the form submitted by the Board. On
November 12, 2004, the PCAOB filed
with the Commission Amendment No. 1
to the proposed rule amendments. The
Commission is publishing this notice to
solicit comments on the proposed rule
amendments, as amended by
Amendment No. 1, from interested
persons.
I. Board’s Statement of the Terms of
Substance of the Proposed Rule
On March 9, 2004, the Board adopted
amendments to its bylaws. On October
26, 2004, the Board adopted
amendments to the bylaws as adopted
on March 9. The portions of its bylaws
that the Board has amended through
these cumulative adoptions are set out
below, with italics indicating the text
that is added, and brackets surrounding
text that has been deleted, by the
amendments adopted by the Board.
Bylaws of the Public Company
Accounting Oversight Board[, Inc.]
[A Nonprofit Membership Corporation]
Pursuant to the Provisions of Title I of
the Sarbanes-Oxley Act of 2002
Bylaws of the Public Company Accounting
Oversight Board[, Inc.]
Table of Contents
Article I: Name
Article II: Object
2.1. Organization
2.2. Exempt Organization Purposes
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2.3. Exempt Organization Uses of Earnings
and Activities
Article III: Offices
3.1. Principal Office
3.2. Other Offices
3.3. Agent and Office for Service of Process
Article IV: Governing Board
4.1. Composition
4.2. Powers and Duties
4.3. Quorum [and Majority]
4.4. Board Action
4.5[4]. Compensation and Expenses
Article V: Governing Board Meetings
5.1. [General] Governing Board Meetings
[5.2. Regular Public Meetings
5.3. Special Meetings
5.[4]2. Telephonic Participation
Article VI: Officers
6.1. General
6.2. Other Officers
6.3. Powers of the Chief Executive Officer
Article VII: Liability and Indemnification
7.1. No Personal Liability
7.2. Indemnification
7.3. Insurance
[7.4. Severability
Article VIII: Bylaw Amendments [And] and
Rules [Of the Corporation] of the
Governing Board
8.1. Amendments to Bylaws
8.2. Rules
Article IX: Miscellaneous Provisions
9.1. Fiscal Year
9.2. Capital Expenditures
9.3. Selection of Auditor
9.4. Headings
9.5. Variation of Terms
9.6. Severability
Article I
Name
1. The name of the [Corporation] body
corporate shall be the Public Company
Accounting Oversight Board[, Inc] (the
‘‘Corporation’’).
Article II
Object
2.1. Organization. The Corporation is
organized pursuant to, and shall be
operated for such purposes as are set
forth in, Title I of the Sarbanes-Oxley
Act of 2002 (the ‘‘Act’’).
2.2. Exempt Organization Purposes.
The Corporation is organized
exclusively for charitable, educational,
and scientific purposes, including, for
such purposes, the making of
distributions to organizations that
qualify as exempt organizations under
section 501(c)(3) of the Internal Revenue
Code, or corresponding section of any
future federal tax code.
2.3. Exempt Organization Uses of
Earnings and Activities. No part of the
net earnings of the Corporation shall
inure to the benefit of, or be
distributable to, members or trustees of
the Corporation, if any, or to officers of
the Corporation, or other private
persons, except that the Corporation
shall be authorized and empowered to
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pay reasonable compensation for
services rendered and to make
payments and distributions in
furtherance of the purposes set forth in
the purpose hereof. No substantial part
of the activities of the Corporation shall
be the carrying on of propaganda, or
otherwise attempting to influence
legislation, and the Corporation shall
not participate in, or intervene in
(including the publishing or distribution
of statements) any political campaign
on behalf of any candidate for public
office. Notwithstanding any other
provision of this document, the
Corporation shall not carry on any other
activities not permitted to be carried on
(a) by an organization exempt from
federal income tax under section
501(c)(3) of the Internal Revenue Code,
or corresponding section of any future
federal tax code, or (b) by an
organization, contributions to which are
deductible under section 170(c)(2) of the
Internal Revenue Code, or
corresponding section of any future
federal tax code.
Article III
Offices
3.1. Principal Office. The principal
office of the Corporation shall be in the
City of Washington, District of
Columbia.
3.2. Other Offices. The Governing
Board of the Corporation (the
‘‘Governing Board’’) may designate
other office locations, [outside of] within
or without the District of Columbia, as
the Governing Board may determine are
necessary or appropriate to meet the
[Corporation’s] Governing Board’s
objectives.
3.3. Agent and Office for Service of
Process. The Secretary (or Acting
Secretary, as applicable) of the
Corporation shall serve as the agent of
the Corporation upon whom any
process, notice or demand required or
permitted by law to be served upon the
Corporation may be served. The office of
the Corporation for purposes of such
service of process, notice or demand
shall initially be the office located at
1666 K Street, NW, Washington, DC
20006.
Article IV
Governing Board
4.1. Composition. The Governing
Board shall consist of those persons
appointed thereto by the Securities and
Exchange Commission, pursuant to
Section 101 of the Act.
4.2. Powers and Duties. The
Governing Board shall have such
powers and duties as are provided in
Title I of the Act.
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409
4.3. Quorum [and Majority]. A
majority of the members of the
Governing Board shall constitute a
quorum.
4.4. Board Action. [An] Any act (i)
authorized [approved] by majority vote
of the members of the Governing Board
present at a meeting of the Governing
Board at which a quorum is present, or
(ii) authorized by at least a majority of
the Governing Board (other than at a
meeting of the Governing Board) in
accordance with any other procedure
permitted by law, shall be [the] an act
by vote of the Governing Board. If a
Governing Board member has recused
himself or herself from a decision, and
a quorum of otherwise qualified
Governing Board members cannot
reasonably be assembled in time to meet
the exigencies of that particular
situation, the recused Governing Board
member may be counted for quorum
purposes only. As used in this section,
‘‘the exigencies of that particular
situation’’ shall be defined to require
circumstances in which the Governing
Board is required to act within a limited
period of time or in which the public
interest or the protection of investors
otherwise [prevent] prevents the deferral
of action until a quorum of non-recused
Governing Board members is available.
4.5[4]. Compensation and Expenses.
The Governing Board shall set the
compensation for its [Members]
members. The Corporation shall pay or
reimburse members [Members] of the
Governing Board [shall be reimbursed
by the Board] for reasonable expenses
incurred in the discharge of their duties.
absent exigent circumstances as
determined by the Governing Board, the
public is informed, at least five (5)
calendar days in advance, of the time,
location, and general topics scheduled
for discussion of each [Regular Public
Meeting.] public meeting, and, in the
event of such exigent circumstances,
shall ensure that notice of a public
meeting is provided as soon as
practicable.
[5.3. Special Meetings. The Governing
Board may hold additional meetings
(‘‘Special Meetings’’), which may be
public or non-public (in accordance
with the Open Meeting Policy) as it
deems necessary or appropriate to
further the purposes of the Act. The
Open Meeting Policy shall set forth
procedures for providing the public
with reasonable notice of public Special
Meetings.]
5.[4]2. Telephonic Participation. [The
Governing Board] Provided that all
Governing Board members are able to
hear each other (and, in the case of
public meetings, the public located at
the location specified in the meeting
notice is able to hear all of the
participating members of the Governing
Board), the Governing Board may meet
via telephone or teleconference, and any
member thereof may participate in a
meeting by telephone, provided that, in
the case of a meeting that is open to the
public, at least one Governing Board
member shall be present at the location
specified in the meeting notice.
Article V
6.1. General. The [Chair] Chairman of
the Governing Board (the ‘‘Chair’’) shall
also be the President and Chief
Executive Officer of the Corporation. All
other Governing Board members shall
also be Vice Presidents of the
Corporation. Governing Board members
shall serve as officers of the Corporation
without additional compensation.
6.2. Other Officers. The other officers
of the Corporation shall include a
Secretary, Treasurer, General Counsel,
Chief Auditor, Chief Administrative
Officer, Director of [Inspections and]
Registration and Inspections, Director of
[Investigations and] Enforcement and
Investigations, and such other officers as
the Governing Board may establish in
accordance with such rules of the
Governing Board as may be adopted for
establishing officers.
6.3. Powers of the Chief Executive
Officer.
(a) The Chief Executive Officer is
responsible for, and has authority over,
the management and administration of
the Corporation, including
Governing Board Meetings
[5.1. General. As soon as practical
after the adoption of these bylaws, the
Governing Board shall adopt a written
policy defining the circumstances under
which meetings of the Board will be
open to the public (the ‘‘Open Meeting
Policy’’).]
5.[2]1. [Regular Public] Governing
Board Meetings. The Governing Board
shall hold at least one (1) public
meeting each [month, which meeting
shall take place on the first Tuesday of
each month (the ‘‘Regular Public
Meeting’’), or at] calendar quarter, and
such other [time] meetings, which may
be either public or non-public (in
accordance with the Open Meeting
Policy of the Governing Board), as the
Chair [shall determine. The Board shall
ensure that, under procedures defined
in its Open Meeting Policy] (as defined
below) deems necessary or appropriate
to further the purposes of the Act. The
Governing Board shall ensure that,
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Article VI
Officers
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responsibility and authority for the
appointment, dismissal, and
supervision of personnel (other than
Governing Board members and
personnel employed regularly and fulltime within the immediate offices of the
Governing Board members), the
distribution of business among such
personnel and among organizational
units of the Corporation, the use and
expenditure of funds (including the
procurement of goods and services), and
the development (for Governing Board
review) of strategic policy initiatives.
(b)(1) In carrying out any of the
responsibilities under the provisions of
this section 6.3, the Chief Executive
Officer shall be governed by the general
policies of the Governing Board and by
such rules and decisions as the
Governing Board may lawfully make.
(2) The appointment by the Chief
Executive Officer of the officers of the
Corporation designated in and
established under section 6.2 shall be
subject to the approval of, and made in
consultation with, the Governing Board,
and the dismissal of the officers of the
Corporation designated in and
established under section 6.2 shall be
made in consultation with the
Governing Board, except that when the
Governing Board determines that the
dismissal arises out of a conflict
regarding the general policies of the
Governing Board, it is also subject to the
approval of the Governing Board.
(3) Each Governing Board member has
responsibility and authority for the
appointment, dismissal, and
supervision of personnel employed
regularly and full-time within the
immediate office of the Governing Board
member, subject to the Governing
Board’s overall personnel policies.
(4) The Chief Executive Officer has
the responsibility and authority to
develop, and present to the Governing
Board for approval, an annual budget as
well as mid-year adjustments, if any.
There is reserved to the Governing
Board its responsibility and authority
with respect to determining the
distribution of funds according to major
programs and purposes, including those
related to salary schedules and other
conditions of employment.
(c) Notwithstanding any other
provision of these bylaws, however, the
Director of the Office of Internal
Oversight and Performance Assurance
shall report directly to the Governing
Board and the Governing Board shall
have exclusive authority to hire, fire,
and establish the compensation and
other terms of employment of the
Director.
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Article VII
Liability and Indemnification
7.1. No Personal Liability. No contract
entered into by or on behalf of the
Corporation shall personally obligate
any employee, officer, or Governing
Board member of the Corporation,
including the employee, officer or
Governing Board member authorizing
such contract or executing same.
7.2. Indemnification.
(a) Unless and to the extent otherwise
prohibited by law and as otherwise
provided in this Section 7.2[(b)], the
Corporation shall indemnify any
employee, officer, or Governing Board
member, or any former employee,
officer, or Governing Board member
(each, a ‘‘Potential Indemnitee’’),
against any and all [expenses and]
liabilities (including without limitation
judgments, fines, and penalties against
such Potential Indemnitee) and
reasonable expenses (including without
limitation reasonable counsel fees and
other reasonable related fees) actually
and necessarily incurred by [him or
her,] or imposed on him or her, in
connection with such Potential
Indemnitee’s defense against any claim,
action, suit, or proceeding (whether
actual or threatened, civil, criminal,
administrative, or investigative,
including appeals)[,] (each, a
‘‘Proceeding’’) to which he or she may
be or is made a party by reason of being
or having been such [employee, officer,
or Board member.] a Potential
Indemnitee (such liabilities and
expenses, collectively, ‘‘Indemnifiable
Amounts’’). Notwithstanding the
foregoing, Indemnifiable Amounts shall
include amounts paid in settlement by
a Potential Indemnitee only if such
amounts are approved by the Governing
Board.
(b) [Notwithstanding section 7.2(a),
there] There shall be no indemnification
in relation to matters as to which the
Governing Board finds that the
[employee, officer, or Board member]
Potential Indemnitee acted or omitted to
act, in either case in bad faith, or
engaged in willful misconduct in the
performance of a duty to the
Corporation. Prior to making any such
finding, the Governing Board shall
provide the Potential Indemnitee with at
least ten (10) business days written
notice of its intent to consider the
matter, within which time the Potential
Indemnitee shall have the right to
submit relevant written materials to the
Governing Board for its consideration.
[(c) Amounts paid in indemnification
of expenses and liabilities may include,
but shall not be limited to, counsel and
other related fees; costs and
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disbursements; and judgments, fines,
and penalties against, and amounts paid
in settlement by, such employee, officer,
or Board member.]
[(d) The Corporation may advance
expenses to, or where appropriate may
itself, at its expense, undertake the
defense of any employee, officer, or
Board member; provided, however, that
such employee, officer, or Board
member shall undertake to repay or to
reimburse such expense if it should be
ultimately determined that he or she is
not entitled to indemnification under
this Article.]
(c) In lieu of providing the
advancements or indemnification
provided for herein, the Corporation
may, at its own expense not to be
reimbursed by the Potential Indemnitee,
undertake the defense of any such
Potential Indemnitee, in which case the
Governing Board in its discretion may
determine whether the Corporation shall
reimburse such Potential Indemnitee for
any fees and expenses incurred as a
result of his or her engagement of
separate counsel, whether through
advancements or indemnification. The
provisions of this subsection 7.2(c) shall
not apply to any Proceeding by or in the
right of the Corporation.
(d) Except as otherwise provided
herein, within fifteen (15) business days
after the Corporation’s receipt of a
request therefore, and of a written
undertaking by the Potential Indemnitee
to repay or to reimburse all such
amounts if it is determined that such
Potential Indemnitee is not entitled to
indemnification under this Article, the
Corporation shall advance
Indemnifiable Amounts to a Potential
Indemnitee.
(e) The provisions of this Article shall
be applicable to [claims, actions, suits,
or proceedings] Proceedings made or
commenced after the adoption hereof,
whether arising from acts or omissions
to act occurring before or after adoption
hereof.
(f) The indemnification and
advancements provided by this Article
shall not be deemed exclusive of any
other rights to which [such employee,
officer, or Board member] any Potential
Indemnitee may be entitled under any
applicable law.
(g) The indemnification and
advancements provided by this Article
shall not restrict the power of the
Governing Board to provide any
additional indemnification and
advancements permitted by law.
(h) As a condition precedent to a
Potential Indemnitee’s right to be
indemnified or receive advancements
hereunder, he or she shall (i) give to the
Corporation notice in writing directed to
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the Secretary of the Corporation (or to
such other individual as the
Corporation may designate) as soon as
practicable of any Proceeding made
against such Potential Indemnitee for
which indemnity will or could be
sought, and (ii) other than in connection
with a Proceeding by or in the right of
the Corporation, provide the
Corporation with such information and
cooperation as it may reasonably
request.
7.3. Insurance. The Governing Board
may purchase insurance on behalf of
any [employee, officer, or Governing
Board member] Potential Indemnitee
against any liability which may be
asserted against or incurred by him or
her [which] that arises out of such
person’s status as [an employee, officer,
or Board member] a Potential
Indemnitee or out of acts taken in such
capacity, whether or not the Corporation
would have the power to indemnify
such person against that liability under
law. To the extent that any applicable
insurance is available to respond to any
[claim] Proceeding addressed in this
Article, such insurance shall be
exhausted before any payment is made
pursuant to the advancement and
indemnification provisions in this
Article.
[7.4. Severability. If any part of this
Article shall be found in any action,
suit, or proceeding to be invalid or
ineffective, the validity and
effectiveness of the remaining parts
shall not be affected.]
Article VIII
Bylaw Amendments and Rules of the
Governing Board [Corporation]
8.1. Amendments to Bylaws. Subject
to the approval of the U.S. Securities
and Exchange Commission as provided
in the Act, the [The] Governing Board
may from time to time amend, repeal, or
supplement these bylaws.
8.2. Rules. In addition to, and separate
from, these bylaws, the Governing Board
may adopt such rules of the Governing
Board [Corporation] as it deems
necessary or appropriate to discharge its
responsibilities under the Act.
Article IX
Miscellaneous Provisions
9.1. Fiscal Year. The Corporation’s
fiscal year shall be the calendar year.
9.2. Capital Expenditures. Except as
expressly delegated by the Governing
Board, no capital expenditure or
investment shall be made without the
approval of the Governing Board.
9.3. Selection of Auditor. The
Governing Board shall retain an
accounting firm to annually audit the
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Corporation’s financial records, which
firm shall not perform any other
services, except tax services, for the
Corporation.
9.4. Headings. Section and other
headings contained herein are for
reference purposes only, and are not
intended to describe, interpret, define,
or limit the scope, extent, or intent of
any of the provisions hereof.
9.5. Variation of Terms. All terms and
any variations thereof shall be deemed
to refer to masculine, feminine, or
neuter, singular or plural, as the identity
of the respective person or persons may
require.
9.6. Severability. If any part of these
bylaws shall be found in any action,
suit, or proceeding to be invalid or
ineffective, the validity and effectiveness
of the remaining parts shall not be
affected.
*
*
*
*
*
which the Board may act by vote
outside of a Board meeting.
II. Board’s Statement of the Purpose of,
and Statutory Basis for, the Proposed
Rule
411
Indemnification
A. Board’s Statement of the Purpose of,
and Statutory Basis for, the Proposed
Amendments to Its Bylaws
(a) Purpose
The purpose of the amendments is to
clarify existing bylaws provisions, and
to cause the bylaws of the PCAOB to
address the following internal
operational and administrative PCAOB
matters in the manner best suited to the
organization:
The PCAOB’s Status as a Tax-Exempt
Organization
The amendments specify that the
PCAOB’s purposes, activities and uses
of earnings comport with the
requirements of the Internal Revenue
Service for exemption from federal
taxation pursuant to Section 501(c)(3) of
the Internal Revenue Code.
Agent and Office for Service of Process,
Notices and Demands
The amendments identify the office
and agent of the PCAOB for purposes of
service of process, notices, and
demands.
Board Meetings and Action
The amendments modify the prior
provisions regarding the frequency,
scheduling and notice requirements of
public Board meetings. The
amendments require the Board to hold
at least one public meeting per calendar
quarter and, absent exigent
circumstances, to ensure that public
notice thereof is provided at least five
days prior to the meeting. The
amendments also address the manner in
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Officer Titles
The amendments clarify the current
titles of two of the Board’s officers.
Director of the Office of Internal
Oversight and Performance Assurance
The Board has established an Office of
Internal Oversight and Performance
Assurance in order to provide internal
examination of the programs and
operations of the PCAOB to help ensure
the efficiency, integrity and
effectiveness of those programs and
operations. The amendments specify
that the Director of this office reports
directly to the Board, and that the Board
has the exclusive authority to hire, fire
and establish the compensation and
other terms of employment of this
Director.
The amendments condense portions
of the indemnification provisions of the
prior bylaws and include substantive
modifications. These substantive
modifications clarify (i) the types of
costs and expenses for which the
PCAOB will provide indemnification;
(ii) the manner in which the Board may
determine whether indemnification is to
be provided; (iii) the right of the Board
to undertake an individual’s defense in
lieu of payment of indemnification; (iv)
the availability of payment of
indemnifiable amounts in advance of
the final disposition of a proceeding;
and (v) basic conditions a potential
indemnitee must satisfy in order to
receive payment from the PCAOB.
(b) Statutory Basis
The statutory basis for the proposed
amendments to the Bylaws is Title I of
the Act.
B. Board’s Statement on Burden on
Competition
The Board does not believe that the
proposed bylaws amendments will
result in any burden on competition that
is not necessary or appropriate in
furtherance of the purposes of the Act.
C. Board’s Statement on Comments on
the Proposed Rules Received From
Members, Participants or Others
Not applicable.
III. Date of Effectiveness of the
Proposed Rule 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
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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 Board consents the
Commission will:
(a) By order approve such proposed
rule; or
(b) Institute proceedings to determine
whether the proposed rule should be
disapproved.
Number PCAOB–2004–02 and should
be submitted on or before January 25,
2005.
IV. Solicitation of Comments
Interested persons are invited to
submit written data, views, and
arguments concerning the foregoing,
including whether the proposed rule is
consistent with the requirements of
Title I of the Act. Comments may be
submitted by any of the following
methods:
SECURITIES AND EXCHANGE
COMMISSION
Electronic Comments
• Use the Commission’s Internet
comment form (https://www.sec.gov/
rules/pcaob.shtml); or
• Send an e-mail to rulecomments@sec.gov. Please include File
Number PCAOB–2004–02 on the subject
line.
By the Commission.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. E4–3923 Filed 1–3–05; 8:45 am]
BILLING CODE 8010–01–P
[Release No. 34–50934; File No. SR–Amex–
2004–108]
Self-Regulatory Organizations;
American Stock Exchange LLC; Notice
of Filing and Immediate Effectiveness
of Proposed Rule Change Relating to
Odd-Lots in Nasdaq Securities
December 27, 2004.
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 December
22, 2004, the American Stock Exchange
LLC (‘‘Amex’’ or ‘‘Exchange’’) filed with
the Securities and Exchange
Paper Comments
Commission (‘‘Commission’’) the
proposed rule change as described in
• Send paper comments in triplicate
items I, II, and III below, which items
to Jonathan G. Katz, Secretary,
have been prepared by the Exchange.
Securities and Exchange Commission,
The Exchange filed the proposal
450 Fifth Street, NW., Washington, DC
pursuant to Section 19(b)(3)(A) of the
20549–0609.
Act 3 and Rule 19b–4(f)(6) thereunder,4
All submissions should refer to File
which renders the proposal effective
Number PCAOB–2004–02. This file
upon filing with the Commission. The
number should be included on the
subject line if e-mail is used. To help the Commission is publishing this notice to
solicit comments on the proposed rule
Commission process and review your
change from interested persons.
comments more efficiently, please use
only one method. The Commission will I. Self-Regulatory Organization’s
post all comments on the Commission’s Statement of the Terms of Substance of
Internet Web site (https://www.sec.gov/
the Proposed Rule Change
rules/pcaob.shtml). Copies of the
The Amex proposes to extend for an
submission, all subsequent
additional six-month period ending
amendments, all written statements
June 30, 2005, the Exchange’s pilot
with respect to the proposed rule that
program for odd-lot execution
are filed with the Commission, and all
procedures for Nasdaq securities traded
written communications relating to the
on the Exchange pursuant to unlisted
proposed rule change between the
Commission and any person, other than trading privileges.
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, 450 Fifth Street, NW.,
Washington, DC 20549. Copies of such
filing also will be available for
inspection and copying at the principal
office of PCAOB. All comments received
will be posted without change; we do
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
VerDate jul<14>2003
18:02 Jan 03, 2005
Jkt 205001
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
Exchange 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
PO 00000
1 15
U.S.C. 78s(b)(1).
CFR 240.19b–4.
3 15 U.S.C. 78s(b)(3)(A).
4 17 CFR 240.19b–4(f)(6).
2 17
Frm 00087
Fmt 4703
Sfmt 4703
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
The Commission approved, and the
Exchange implemented, a pilot program
for odd-lot order 5 executions in Nasdaq
securities transacted on the Exchange
pursuant to unlisted trading privileges.
Paragraph (j) of Rule 118 (‘‘Trading in
Nasdaq National market Securities’’)
describes the Exchange’s odd-lot
execution procedures for Nasdaq
securities, and Commentary .05 of Amex
Rule 205 (‘‘Manner of Executing OddLot Orders’’) references rule 118(j) oddlot procedures. The pilot program was
originally approved on august 2, 2002,
for a six-month period, and was
reestablished on July 14, 2003, for an
additional six-month period ending
December 27, 2003.6 On November 20,
2003, the Commission provided notice
of the Exchange’s proposed rule change
to amend paragraph (j) of Amex Rule
118 and to extend the pilot program
through June 27, 2004,7 and on June 14,
2004, the Commission provided notice
of a further extension of the pilot
program through December 27, 2004.8
Under the Exchange’s current pilot
program, after the opening of trading in
Nasdaq securities, odd-lot market orders
and executable odd-lot limit orders are
executed at the qualified national best
bid or offer 9 at the time the order is
5 An odd-lot order is an order for less than 100
shares.
6 See Securities Exchange Act Release No. 46304
(August 2, 2002) 67 FR 51903 (August 9, 2002)
approving SR–Amex–2002–56, and Securities
Exchange Act Release No. 48174 (July 14, 2003) 68
FR 43409 (July 22, 2003) (SR–Amex–2003–56).
7 See Securities Exchange Act Release No. 48995
(December 24, 2003) 68 FR 75670 (December 31,
2003) (SR–Amex–2003–102).
8 See Securities Exchange Act Release No. 49855
(June 14, 2004) 69 FR 35399 (June 24, 2004) (SR–
Amex–2004–30).
9 In Amex Rule 118(j), the qualified national best
bid and offer are defined as the highest bid and
lowest offer, respectively, disseminated (A) by the
Exchange or (B) by another market center
participating in the Joint Self-Regulatory
Organization Plan Governing the Collection,
Consolidation and Dissemination of Quotation and
Transaction Information for Nasdaq Listed
Securities Traded on Exchanges on an Unlisted
Trading Privileges Basis; provided, however, that
the bid and offer in another such market center will
be considered in determining the qualified national
best bid or offer in a stock only if (i) the quotation
conforms to the requirements of Amex Rule 127
(‘‘Minimum Price Variations’’), (ii) the quotation
does not result in a locked or crossed market, (iii)
the market center is not experiencing operational or
E:\FR\FM\04JAN1.SGM
04JAN1
]]>Agencies
[Federal Register Volume 70, Number 2 (Tuesday, January 4, 2005)]
[Notices]
[Pages 408-412]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E4-3923]
=======================================================================
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-50936; File No. PCAOB-2004-02]
Public Company Accounting Oversight Board; Notice of Filing of
Proposed Rule and Amendment No. 1 Amending Bylaws
December 27, 2004.
Pursuant to section 107(b) of the Sarbanes-Oxley Act of 2002 (the
``Act''), notice is hereby given that on March 18, 2004, the Public
Company Accounting Oversight Board (the ``Board'' or the ``PCAOB'')
filed with the Securities and Exchange Commission (the ``Commission'')
the proposed rule amendments described in Items I and II below, which
items have been prepared by the Board and are presented here in the
form submitted by the Board. On November 12, 2004, the PCAOB filed with
the Commission Amendment No. 1 to the proposed rule amendments. The
Commission is publishing this notice to solicit comments on the
proposed rule amendments, as amended by Amendment No. 1, from
interested persons.
I. Board's Statement of the Terms of Substance of the Proposed Rule
On March 9, 2004, the Board adopted amendments to its bylaws. On
October 26, 2004, the Board adopted amendments to the bylaws as adopted
on March 9. The portions of its bylaws that the Board has amended
through these cumulative adoptions are set out below, with italics
indicating the text that is added, and brackets surrounding text that
has been deleted, by the amendments adopted by the Board.
Bylaws of the Public Company Accounting Oversight Board[, Inc.]
[A Nonprofit Membership Corporation]
Pursuant to the Provisions of Title I of the Sarbanes-Oxley Act of 2002
Bylaws of the Public Company Accounting Oversight Board[, Inc.]
Table of Contents
Article I: Name
Article II: Object
2.1. Organization
2.2. Exempt Organization Purposes
2.3. Exempt Organization Uses of Earnings and Activities
Article III: Offices
3.1. Principal Office
3.2. Other Offices
3.3. Agent and Office for Service of Process
Article IV: Governing Board
4.1. Composition
4.2. Powers and Duties
4.3. Quorum [and Majority]
4.4. Board Action
4.5[4]. Compensation and Expenses
Article V: Governing Board Meetings
5.1. [General] Governing Board Meetings
[5.2. Regular Public Meetings
5.3. Special Meetings
5.[4]2. Telephonic Participation
Article VI: Officers
6.1. General
6.2. Other Officers
6.3. Powers of the Chief Executive Officer
Article VII: Liability and Indemnification
7.1. No Personal Liability
7.2. Indemnification
7.3. Insurance
[7.4. Severability
Article VIII: Bylaw Amendments [And] and Rules [Of the Corporation]
of the Governing Board
8.1. Amendments to Bylaws
8.2. Rules
Article IX: Miscellaneous Provisions
9.1. Fiscal Year
9.2. Capital Expenditures
9.3. Selection of Auditor
9.4. Headings
9.5. Variation of Terms
9.6. Severability
Article I
Name
1. The name of the [Corporation] body corporate shall be the Public
Company Accounting Oversight Board[, Inc] (the ``Corporation'').
Article II
Object
2.1. Organization. The Corporation is organized pursuant to, and
shall be operated for such purposes as are set forth in, Title I of the
Sarbanes-Oxley Act of 2002 (the ``Act'').
2.2. Exempt Organization Purposes. The Corporation is organized
exclusively for charitable, educational, and scientific purposes,
including, for such purposes, the making of distributions to
organizations that qualify as exempt organizations under section
501(c)(3) of the Internal Revenue Code, or corresponding section of any
future federal tax code.
2.3. Exempt Organization Uses of Earnings and Activities. No part
of the net earnings of the Corporation shall inure to the benefit of,
or be distributable to, members or trustees of the Corporation, if any,
or to officers of the Corporation, or other private persons, except
that the Corporation shall be authorized and empowered to
[[Page 409]]
pay reasonable compensation for services rendered and to make payments
and distributions in furtherance of the purposes set forth in the
purpose hereof. No substantial part of the activities of the
Corporation shall be the carrying on of propaganda, or otherwise
attempting to influence legislation, and the Corporation shall not
participate in, or intervene in (including the publishing or
distribution of statements) any political campaign on behalf of any
candidate for public office. Notwithstanding any other provision of
this document, the Corporation shall not carry on any other activities
not permitted to be carried on (a) by an organization exempt from
federal income tax under section 501(c)(3) of the Internal Revenue
Code, or corresponding section of any future federal tax code, or (b)
by an organization, contributions to which are deductible under section
170(c)(2) of the Internal Revenue Code, or corresponding section of any
future federal tax code.
Article III
Offices
3.1. Principal Office. The principal office of the Corporation
shall be in the City of Washington, District of Columbia.
3.2. Other Offices. The Governing Board of the Corporation (the
``Governing Board'') may designate other office locations, [outside of]
within or without the District of Columbia, as the Governing Board may
determine are necessary or appropriate to meet the [Corporation's]
Governing Board's objectives.
3.3. Agent and Office for Service of Process. The Secretary (or
Acting Secretary, as applicable) of the Corporation shall serve as the
agent of the Corporation upon whom any process, notice or demand
required or permitted by law to be served upon the Corporation may be
served. The office of the Corporation for purposes of such service of
process, notice or demand shall initially be the office located at 1666
K Street, NW, Washington, DC 20006.
Article IV
Governing Board
4.1. Composition. The Governing Board shall consist of those
persons appointed thereto by the Securities and Exchange Commission,
pursuant to Section 101 of the Act.
4.2. Powers and Duties. The Governing Board shall have such powers
and duties as are provided in Title I of the Act.
4.3. Quorum [and Majority]. A majority of the members of the
Governing Board shall constitute a quorum.
4.4. Board Action. [An] Any act (i) authorized [approved] by
majority vote of the members of the Governing Board present at a
meeting of the Governing Board at which a quorum is present, or (ii)
authorized by at least a majority of the Governing Board (other than at
a meeting of the Governing Board) in accordance with any other
procedure permitted by law, shall be [the] an act by vote of the
Governing Board. If a Governing Board member has recused himself or
herself from a decision, and a quorum of otherwise qualified Governing
Board members cannot reasonably be assembled in time to meet the
exigencies of that particular situation, the recused Governing Board
member may be counted for quorum purposes only. As used in this
section, ``the exigencies of that particular situation'' shall be
defined to require circumstances in which the Governing Board is
required to act within a limited period of time or in which the public
interest or the protection of investors otherwise [prevent] prevents
the deferral of action until a quorum of non-recused Governing Board
members is available.
4.5[4]. Compensation and Expenses. The Governing Board shall set
the compensation for its [Members] members. The Corporation shall pay
or reimburse members [Members] of the Governing Board [shall be
reimbursed by the Board] for reasonable expenses incurred in the
discharge of their duties.
Article V
Governing Board Meetings
[5.1. General. As soon as practical after the adoption of these
bylaws, the Governing Board shall adopt a written policy defining the
circumstances under which meetings of the Board will be open to the
public (the ``Open Meeting Policy'').]
5.[2]1. [Regular Public] Governing Board Meetings. The Governing
Board shall hold at least one (1) public meeting each [month, which
meeting shall take place on the first Tuesday of each month (the
``Regular Public Meeting''), or at] calendar quarter, and such other
[time] meetings, which may be either public or non-public (in
accordance with the Open Meeting Policy of the Governing Board), as the
Chair [shall determine. The Board shall ensure that, under procedures
defined in its Open Meeting Policy] (as defined below) deems necessary
or appropriate to further the purposes of the Act. The Governing Board
shall ensure that, absent exigent circumstances as determined by the
Governing Board, the public is informed, at least five (5) calendar
days in advance, of the time, location, and general topics scheduled
for discussion of each [Regular Public Meeting.] public meeting, and,
in the event of such exigent circumstances, shall ensure that notice of
a public meeting is provided as soon as practicable.
[5.3. Special Meetings. The Governing Board may hold additional
meetings (``Special Meetings''), which may be public or non-public (in
accordance with the Open Meeting Policy) as it deems necessary or
appropriate to further the purposes of the Act. The Open Meeting Policy
shall set forth procedures for providing the public with reasonable
notice of public Special Meetings.]
5.[4]2. Telephonic Participation. [The Governing Board] Provided
that all Governing Board members are able to hear each other (and, in
the case of public meetings, the public located at the location
specified in the meeting notice is able to hear all of the
participating members of the Governing Board), the Governing Board may
meet via telephone or teleconference, and any member thereof may
participate in a meeting by telephone, provided that, in the case of a
meeting that is open to the public, at least one Governing Board member
shall be present at the location specified in the meeting notice.
Article VI
Officers
6.1. General. The [Chair] Chairman of the Governing Board (the
``Chair'') shall also be the President and Chief Executive Officer of
the Corporation. All other Governing Board members shall also be Vice
Presidents of the Corporation. Governing Board members shall serve as
officers of the Corporation without additional compensation.
6.2. Other Officers. The other officers of the Corporation shall
include a Secretary, Treasurer, General Counsel, Chief Auditor, Chief
Administrative Officer, Director of [Inspections and] Registration and
Inspections, Director of [Investigations and] Enforcement and
Investigations, and such other officers as the Governing Board may
establish in accordance with such rules of the Governing Board as may
be adopted for establishing officers.
6.3. Powers of the Chief Executive Officer.
(a) The Chief Executive Officer is responsible for, and has
authority over, the management and administration of the Corporation,
including
[[Page 410]]
responsibility and authority for the appointment, dismissal, and
supervision of personnel (other than Governing Board members and
personnel employed regularly and full-time within the immediate offices
of the Governing Board members), the distribution of business among
such personnel and among organizational units of the Corporation, the
use and expenditure of funds (including the procurement of goods and
services), and the development (for Governing Board review) of
strategic policy initiatives.
(b)(1) In carrying out any of the responsibilities under the
provisions of this section 6.3, the Chief Executive Officer shall be
governed by the general policies of the Governing Board and by such
rules and decisions as the Governing Board may lawfully make.
(2) The appointment by the Chief Executive Officer of the officers
of the Corporation designated in and established under section 6.2
shall be subject to the approval of, and made in consultation with, the
Governing Board, and the dismissal of the officers of the Corporation
designated in and established under section 6.2 shall be made in
consultation with the Governing Board, except that when the Governing
Board determines that the dismissal arises out of a conflict regarding
the general policies of the Governing Board, it is also subject to the
approval of the Governing Board.
(3) Each Governing Board member has responsibility and authority
for the appointment, dismissal, and supervision of personnel employed
regularly and full-time within the immediate office of the Governing
Board member, subject to the Governing Board's overall personnel
policies.
(4) The Chief Executive Officer has the responsibility and
authority to develop, and present to the Governing Board for approval,
an annual budget as well as mid-year adjustments, if any. There is
reserved to the Governing Board its responsibility and authority with
respect to determining the distribution of funds according to major
programs and purposes, including those related to salary schedules and
other conditions of employment.
(c) Notwithstanding any other provision of these bylaws, however,
the Director of the Office of Internal Oversight and Performance
Assurance shall report directly to the Governing Board and the
Governing Board shall have exclusive authority to hire, fire, and
establish the compensation and other terms of employment of the
Director.
Article VII
Liability and Indemnification
7.1. No Personal Liability. No contract entered into by or on
behalf of the Corporation shall personally obligate any employee,
officer, or Governing Board member of the Corporation, including the
employee, officer or Governing Board member authorizing such contract
or executing same.
7.2. Indemnification.
(a) Unless and to the extent otherwise prohibited by law and as
otherwise provided in this Section 7.2[(b)], the Corporation shall
indemnify any employee, officer, or Governing Board member, or any
former employee, officer, or Governing Board member (each, a
``Potential Indemnitee''), against any and all [expenses and]
liabilities (including without limitation judgments, fines, and
penalties against such Potential Indemnitee) and reasonable expenses
(including without limitation reasonable counsel fees and other
reasonable related fees) actually and necessarily incurred by [him or
her,] or imposed on him or her, in connection with such Potential
Indemnitee's defense against any claim, action, suit, or proceeding
(whether actual or threatened, civil, criminal, administrative, or
investigative, including appeals)[,] (each, a ``Proceeding'') to which
he or she may be or is made a party by reason of being or having been
such [employee, officer, or Board member.] a Potential Indemnitee (such
liabilities and expenses, collectively, ``Indemnifiable Amounts'').
Notwithstanding the foregoing, Indemnifiable Amounts shall include
amounts paid in settlement by a Potential Indemnitee only if such
amounts are approved by the Governing Board.
(b) [Notwithstanding section 7.2(a), there] There shall be no
indemnification in relation to matters as to which the Governing Board
finds that the [employee, officer, or Board member] Potential
Indemnitee acted or omitted to act, in either case in bad faith, or
engaged in willful misconduct in the performance of a duty to the
Corporation. Prior to making any such finding, the Governing Board
shall provide the Potential Indemnitee with at least ten (10) business
days written notice of its intent to consider the matter, within which
time the Potential Indemnitee shall have the right to submit relevant
written materials to the Governing Board for its consideration.
[(c) Amounts paid in indemnification of expenses and liabilities
may include, but shall not be limited to, counsel and other related
fees; costs and disbursements; and judgments, fines, and penalties
against, and amounts paid in settlement by, such employee, officer, or
Board member.]
[(d) The Corporation may advance expenses to, or where appropriate
may itself, at its expense, undertake the defense of any employee,
officer, or Board member; provided, however, that such employee,
officer, or Board member shall undertake to repay or to reimburse such
expense if it should be ultimately determined that he or she is not
entitled to indemnification under this Article.]
(c) In lieu of providing the advancements or indemnification
provided for herein, the Corporation may, at its own expense not to be
reimbursed by the Potential Indemnitee, undertake the defense of any
such Potential Indemnitee, in which case the Governing Board in its
discretion may determine whether the Corporation shall reimburse such
Potential Indemnitee for any fees and expenses incurred as a result of
his or her engagement of separate counsel, whether through advancements
or indemnification. The provisions of this subsection 7.2(c) shall not
apply to any Proceeding by or in the right of the Corporation.
(d) Except as otherwise provided herein, within fifteen (15)
business days after the Corporation's receipt of a request therefore,
and of a written undertaking by the Potential Indemnitee to repay or to
reimburse all such amounts if it is determined that such Potential
Indemnitee is not entitled to indemnification under this Article, the
Corporation shall advance Indemnifiable Amounts to a Potential
Indemnitee.
(e) The provisions of this Article shall be applicable to [claims,
actions, suits, or proceedings] Proceedings made or commenced after the
adoption hereof, whether arising from acts or omissions to act
occurring before or after adoption hereof.
(f) The indemnification and advancements provided by this Article
shall not be deemed exclusive of any other rights to which [such
employee, officer, or Board member] any Potential Indemnitee may be
entitled under any applicable law.
(g) The indemnification and advancements provided by this Article
shall not restrict the power of the Governing Board to provide any
additional indemnification and advancements permitted by law.
(h) As a condition precedent to a Potential Indemnitee's right to
be indemnified or receive advancements hereunder, he or she shall (i)
give to the Corporation notice in writing directed to
[[Page 411]]
the Secretary of the Corporation (or to such other individual as the
Corporation may designate) as soon as practicable of any Proceeding
made against such Potential Indemnitee for which indemnity will or
could be sought, and (ii) other than in connection with a Proceeding by
or in the right of the Corporation, provide the Corporation with such
information and cooperation as it may reasonably request.
7.3. Insurance. The Governing Board may purchase insurance on
behalf of any [employee, officer, or Governing Board member] Potential
Indemnitee against any liability which may be asserted against or
incurred by him or her [which] that arises out of such person's status
as [an employee, officer, or Board member] a Potential Indemnitee or
out of acts taken in such capacity, whether or not the Corporation
would have the power to indemnify such person against that liability
under law. To the extent that any applicable insurance is available to
respond to any [claim] Proceeding addressed in this Article, such
insurance shall be exhausted before any payment is made pursuant to the
advancement and indemnification provisions in this Article.
[7.4. Severability. If any part of this Article shall be found in
any action, suit, or proceeding to be invalid or ineffective, the
validity and effectiveness of the remaining parts shall not be
affected.]
Article VIII
Bylaw Amendments and Rules of the Governing Board [Corporation]
8.1. Amendments to Bylaws. Subject to the approval of the U.S.
Securities and Exchange Commission as provided in the Act, the [The]
Governing Board may from time to time amend, repeal, or supplement
these bylaws.
8.2. Rules. In addition to, and separate from, these bylaws, the
Governing Board may adopt such rules of the Governing Board
[Corporation] as it deems necessary or appropriate to discharge its
responsibilities under the Act.
Article IX
Miscellaneous Provisions
9.1. Fiscal Year. The Corporation's fiscal year shall be the
calendar year.
9.2. Capital Expenditures. Except as expressly delegated by the
Governing Board, no capital expenditure or investment shall be made
without the approval of the Governing Board.
9.3. Selection of Auditor. The Governing Board shall retain an
accounting firm to annually audit the Corporation's financial records,
which firm shall not perform any other services, except tax services,
for the Corporation.
9.4. Headings. Section and other headings contained herein are for
reference purposes only, and are not intended to describe, interpret,
define, or limit the scope, extent, or intent of any of the provisions
hereof.
9.5. Variation of Terms. All terms and any variations thereof shall
be deemed to refer to masculine, feminine, or neuter, singular or
plural, as the identity of the respective person or persons may
require.
9.6. Severability. If any part of these bylaws shall be found in
any action, suit, or proceeding to be invalid or ineffective, the
validity and effectiveness of the remaining parts shall not be
affected.
* * * * *
II. Board's Statement of the Purpose of, and Statutory Basis for, the
Proposed Rule
A. Board's Statement of the Purpose of, and Statutory Basis for, the
Proposed Amendments to Its Bylaws
(a) Purpose
The purpose of the amendments is to clarify existing bylaws
provisions, and to cause the bylaws of the PCAOB to address the
following internal operational and administrative PCAOB matters in the
manner best suited to the organization:
The PCAOB's Status as a Tax-Exempt Organization
The amendments specify that the PCAOB's purposes, activities and
uses of earnings comport with the requirements of the Internal Revenue
Service for exemption from federal taxation pursuant to Section
501(c)(3) of the Internal Revenue Code.
Agent and Office for Service of Process, Notices and Demands
The amendments identify the office and agent of the PCAOB for
purposes of service of process, notices, and demands.
Board Meetings and Action
The amendments modify the prior provisions regarding the frequency,
scheduling and notice requirements of public Board meetings. The
amendments require the Board to hold at least one public meeting per
calendar quarter and, absent exigent circumstances, to ensure that
public notice thereof is provided at least five days prior to the
meeting. The amendments also address the manner in which the Board may
act by vote outside of a Board meeting.
Officer Titles
The amendments clarify the current titles of two of the Board's
officers.
Director of the Office of Internal Oversight and Performance Assurance
The Board has established an Office of Internal Oversight and
Performance Assurance in order to provide internal examination of the
programs and operations of the PCAOB to help ensure the efficiency,
integrity and effectiveness of those programs and operations. The
amendments specify that the Director of this office reports directly to
the Board, and that the Board has the exclusive authority to hire, fire
and establish the compensation and other terms of employment of this
Director.
Indemnification
The amendments condense portions of the indemnification provisions
of the prior bylaws and include substantive modifications. These
substantive modifications clarify (i) the types of costs and expenses
for which the PCAOB will provide indemnification; (ii) the manner in
which the Board may determine whether indemnification is to be
provided; (iii) the right of the Board to undertake an individual's
defense in lieu of payment of indemnification; (iv) the availability of
payment of indemnifiable amounts in advance of the final disposition of
a proceeding; and (v) basic conditions a potential indemnitee must
satisfy in order to receive payment from the PCAOB.
(b) Statutory Basis
The statutory basis for the proposed amendments to the Bylaws is
Title I of the Act.
B. Board's Statement on Burden on Competition
The Board does not believe that the proposed bylaws amendments will
result in any burden on competition that is not necessary or
appropriate in furtherance of the purposes of the Act.
C. Board's Statement on Comments on the Proposed Rules Received From
Members, Participants or Others
Not applicable.
III. Date of Effectiveness of the Proposed Rule 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
[[Page 412]]
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 Board
consents the Commission will:
(a) By order approve such proposed rule; or
(b) Institute proceedings to determine whether the proposed rule
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
is consistent with the requirements of Title I of the Act. Comments may
be submitted by any of the following methods:
Electronic Comments
Use the Commission's Internet comment form (https://
www.sec.gov/rules/pcaob.shtml); or
Send an e-mail to rule-comments@sec.gov. Please include
File Number PCAOB-2004-02 on the subject line.
Paper Comments
Send paper comments in triplicate to Jonathan G. Katz,
Secretary, Securities and Exchange Commission, 450 Fifth Street, NW.,
Washington, DC 20549-0609.
All submissions should refer to File Number PCAOB-2004-02. 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 (https://www.sec.gov/
rules/pcaob.shtml). Copies of the submission, all subsequent
amendments, all written statements with respect to the proposed rule
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,
450 Fifth Street, NW., Washington, DC 20549. Copies of such filing also
will be available for inspection and copying at the principal office of
PCAOB. All comments received will be posted without change; we do 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 PCAOB-2004-02 and should be
submitted on or before January 25, 2005.
By the Commission.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. E4-3923 Filed 1-3-05; 8:45 am]
BILLING CODE 8010-01-P
