Notice2021-21769
Self-Regulatory Organizations; Cboe BZX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Exempt Certain Categories of Investment Companies Registered Under the Investment Company Act of 1940 From the Requirement To Obtain Shareholder Approval Prior to the Issuance of Securities in Connection With Certain Acquisitions of the Stock or Assets of an Affiliated Registered Investment Company
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 6, 2021
Issuing agencies
Securities and Exchange Commission
Full Text
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<title>Federal Register, Volume 86 Issue 191 (Wednesday, October 6, 2021)</title>
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[Federal Register Volume 86, Number 191 (Wednesday, October 6, 2021)]
[Notices]
[Pages 55659-55662]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-21769]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-93218; File No. SR-CboeBZX-2021-059]
Self-Regulatory Organizations; Cboe BZX Exchange, Inc.; Notice of
Filing and Immediate Effectiveness of a Proposed Rule Change To Exempt
Certain Categories of Investment Companies Registered Under the
Investment Company Act of 1940 From the Requirement To Obtain
Shareholder Approval Prior to the Issuance of Securities in Connection
With Certain Acquisitions of the Stock or Assets of an Affiliated
Registered Investment Company
September 30, 2021.
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 September 22, 2021, Cboe BZX Exchange, Inc. (the ``Exchange''
or ``BZX'') 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 Exchange. The
Exchange filed the proposal as a ``non-controversial'' proposed rule
change pursuant to Section 19(b)(3)(A)(iii) of the Act \3\ and Rule
19b-4(f)(6) thereunder.\4\ 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.
\3\ 15 U.S.C. 78s(b)(3)(A)(iii).
\4\ 17 CFR 240.19b-4(f)(6).
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
Cboe BZX Exchange, Inc. (the ``Exchange'' or ``BZX'') is filing
with the Securities and Exchange Commission (``Commission'') a proposed
rule change to exempt certain categories of investment companies
registered under the Investment Company Act of 1940 (the ``1940 Act'')
from the requirement to obtain shareholder approval prior to the
issuance of securities in connection with certain acquisitions of the
stock or assets of another company. The text of the proposed rule
change is provided in Exhibit 5.
The text of the proposed rule change is also available on the
Exchange's website (<a href="http://markets.cboe.com/us/equities/regulation/rule_filings/bzx/">http://markets.cboe.com/us/equities/regulation/rule_filings/bzx/</a>), 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, 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 places specified in
Item IV below. The Exchange 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 amend Rules 14.10(e)(1)(A) and (E) to
exempt certain categories of investment companies registered under the
1940 Act from the requirement to obtain shareholder approval prior to
the issuance of securities in connection with certain acquisitions of
the stock or assets of another company. The proposal is substantially
similar to a recent rule change made by NYSE Arca, Inc. (``Arca'').\5\
The Exchange also proposes to make structural changes to Rules
14.10(e)(1)(A) and (E).
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\5\ See Securities Exchange Act No. 91901 (May 14, 2021) 86 FR
27487 (May 20, 2021) (SR-NYSEArca-2020-54) (Order approving of a
proposed rule change, as modified by amendment no. 2, to amend NYSE
Arca Rule 5.3E to exempt registered investment companies that list
certain categories of securities defined as derivative and special
purpose securities under NYSE Arca Rules from having to obtain
shareholder approval prior to the issuance of securities in
connection with certain acquisitions of the stock or assets of an
affiliated registered investment company (the ``Arca Approval
Order'').
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By way of background, Exchange Rule 14.10(i)(1) requires issuers to
obtain shareholder approval in connection with the acquisition of the
stock or assets of another company, in the following circumstances:
(A) Where, due to the present or potential issuance of common
stock, including shares issued pursuant to an earn-out provision or
similar type of provision, or securities convertible into or
exercisable for common stock, other than a public offering for cash:
(1) The common stock has or will have upon issuance voting power
equal to or in excess of 20% of the voting power outstanding before the
issuance of stock or securities convertible into or exercisable for
common stock; or
(2) the number of shares of common stock to be issued is or will be
equal to or in excess of 20% of the number of shares of common stock
outstanding before the issuance of the stock or securities; or
(B) any director, officer or Substantial Shareholder (as defined by
Rule 14.10(i)(5)(C)) of the Company has a 5% or greater interest (or
such persons collectively have a 10% or greater interest), directly or
indirectly, in the Company or assets to be acquired or in the
consideration to be paid in the transaction or series of related
transactions and the present or potential issuance of common stock, or
securities convertible into or exercisable for common stock, could
result in an increase in outstanding common shares or voting power of
5% or more.
Exchange Rules 14.10(e)(1)(A) and 14.10(e)(1)(E) exempt certain
categories of issuers from certain corporate governance requirements.
Now, the Exchange proposes to amend Rules 14.10(e)(1)(A) and
14.10(e)(1)(E) to exempt certain categories of investment companies
registered under the 1940 Act from the requirement to comply with Rule
14.10(i)(1) in connection with the acquisition of the stock or assets
of an affiliated registered investment company in a transaction that
complies with Rule 17a-8 \6\ (Mergers of affiliated companies) (``Rule
17a-8'') under the 1940 Act and does not otherwise require shareholder
approval under the 1940 Act and the rules thereunder or any other
Exchange rule.\7\ Specifically, the
[[Page 55660]]
Exchange proposes to exempt from the shareholder approval provision
described herein Portfolio Depository Receipts, as provided under Rule
14.11(b), as well as management investment companies that are Index
Fund Shares, Managed Fund Shares, Managed Portfolio Shares, ETF Shares,
and Tracking Fund Shares as defined in Rules 14.11(c), 14.11(i),
14.11(k), 14.11(l), and 14.11(m), respectively.\8\
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\6\ 17 CFR 270.17a-8.
\7\ The Exchange proposes to exempt both Portfolio Depository
Receipts (Rule 14.11(b)) and certain management investment companies
that are Index Fund Shares (Rule 14.11(c)), Managed Fund Shares
(Rule 14.11(i)), Managed Portfolio Shares (Rule 14.11(k)), ETF
Shares (Rule 14.11(l)), and Tracking Fund Shares (Rule 14.11(m))
(collectively, with Portfolio Depository Receipts, the ``1940 Act
Securities''). Each of the listed categories are issued by an entity
organized under the 1940 Act. In proposing this exemption, the
Exchange notes that the adopting release for Rule 17a-8 specifically
noted that nothing in Rule 17a-8 relieves a fund of its obligation
to obtain shareholder approval as may be required by state law or a
fund's organizational documents. See Investment Company Act Release
No. 25666 at Footnote 18.
\8\ Index Fund Shares listed pursuant to Rule 14.11(c) are
substantively similar to Investment Company Units listed pursuant to
Arca Rule 5.2-E(j)(3). Similarly, Tracking Fund Shares listed
pursuant Rule 14.11(m) are substantively similar to Active Proxy
Portfolio Shares listed pursuant to Arca Rule 8.601-E.
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In general, the requirement to obtain shareholder approval prior to
the issuance of securities in connection with certain acquisitions of
the stock or asset of another company is designed to give existing
shareholders a vote on the issuance of stock that may dilute their
voting or economic rights. The Exchange notes that Exchange Rule
14.10(i)(1) is also intended to give shareholders a vote on
transactions where a director, officer, or substantial shareholder of
the listed company has a significant interest in the company or assets
to be acquired or the consideration to be paid and therefore may
benefit from the transaction. For the reasons described below, as well
as the protections embedded in Rule 17a-8, the Exchange believes that
these concerns are limited with respect to 1940 Act Securities.
Therefore, the Exchange believes it is appropriate to exempt issuers of
1940 Act Securities from having to obtain shareholder approval under
Exchange rules which can be both time consuming and expensive.
The Exchange believes that the potential economic and voting
dilution concerns sometimes associated with a large share issuance are
unlikely to be present when an issuer of a 1940 Act Security issues
shares in connection with the acquisition of the stock or assets of an
affiliated registered investment company. As described above, the
proposed exemption will only apply to issuers of investment companies
organized under the 1940 Act.\9\ Sections 17(a)(1)-(2) of the 1940 Act
prohibit, among other things, certain transactions between registered
investment companies and affiliated persons.\10\ Rule 17a-8 provides an
exemption from Sections 17(a)(1)-(2) for certain mergers of affiliated
companies provided that the board of directors of each investment
company, including a majority of the directors that are not interested
persons, affirmatively determine that (i) participation in the merger
is in the best interest of their respective investment company, and
(ii) the interests of their shareholders will not be diluted as a
result of the transaction.\11\ Because the shares issued by the
acquiring investment company are issued at a price equal to the fund's
net asset value,\12\ the board of directors is able to make an
affirmative determination that the merger is not dilutive to existing
shareholders.\13\ With respect to potential concerns about voting
dilution, holders of Portfolio Depository Receipts and management
investment companies that are Index Fund Shares, Managed Fund Shares,
Managed Portfolio Shares, ETF Shares, and Tracking Fund Shares either
do not have the right to elect directors at annual meetings or have the
right to elect directors only in very limited circumstances.
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\9\ As of June 10, 2021, approximately 97% of securities listed
on the Exchange are issued by investment companies registered under
the 1940 Act.
\10\ 15 U.S.C. 80a-17(a)(1)-(2). See also the definition of
``affiliated person'' in the 1940 Act at 15 U.S.C 80a-2(a)(3).
\11\ 17 CFR 270.17a-8.
\12\ The Exchange notes that the proposing releases for Rule
17a-8 specifically contemplated that, in certain circumstances, the
price paid may deviate from a fund's net asset value due to
adjustments for tax purposes. See Investment Company Act Release No.
25259 at Footnote 26.
\13\ The Exchange notes that the shares are issued at a fund's
net asset value when the fund is registered. Rule 17a-8 also
includes requirements to protect against dilution when the fund to
be acquired is unregistered. Notwithstanding these requirements
applicable when a fund is unregistered, the Exchange's exemption
will only apply when each fund that is a party to the merger is
registered.
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The Exchange believes that the same provisions of Rule 17a-8 that
protect against dilution also provide safeguards for existing
shareholders when the transaction involves a director, officer, or
substantial shareholder of the listed company that has a significant
interest in the company or assets to be acquired or the consideration
to be paid and therefore may benefit from the transaction. Because the
board of each merging company must make an affirmative decision that
the transaction is in the best interest of its respective company and
that the transaction will not result in dilution for existing
shareholders, the Exchange believes there is reduced concern that
existing shareholders will be disenfranchised as a result of the
Exchange's proposed exemption.
Under Rule 17a-8, an affiliated merger must be approved by a
majority of the outstanding voting securities of the merging company
that is not the surviving company unless certain conditions are met.
However, Rule 17a-8 does not require the surviving company (i.e., the
fund issuing shares in the merger) to obtain the approval of its
shareholders. When the Commission proposed amendments to Rule 17a-8, it
specifically sought comment on whether the outstanding voting
securities of the fund that will survive the merger should also be
required to approve the merger.\14\ Importantly, the Commission
ultimately did not include a requirement of approval of shareholders of
the surviving company in its final rule.
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\14\ See Investment Company Act Release No. 25259 at Section
II(A)(2)(a): ``Should the outstanding voting securities of the fund
that will survive the merger also be required to approve the
merger?''
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Given that Rule 17a-8 does not require a surviving company issuer
of 1940 Act Securities to obtain shareholder approval in the context of
a merger of affiliated companies, the Exchange believes it is
appropriate to exempt such issuers of 1940 Act Securities from having
to comply with Exchange Rule 14.10(i)(1). As described above, the
Exchange only proposes to exempt issuers of 1940 Act Securities from
having to comply with Exchange Rule 14.10(i)(1) if they are issuing
shares to acquire the stock or assets of an affiliated registered
investment company. Notwithstanding the proposed exemption, the
Exchange notes that other provisions of Exchange rules or the 1940 Act
and the rules thereunder may require shareholder approval and will
still apply. In particular, the Exchange notes that the adopting
release for Rule 17a-8 specifically noted that nothing in Rule 17a-8
relieves a fund of its obligation to obtain shareholder approval as may
be required by state law or a fund's organizational documents.\15\
Thus, an issuer of a 1940 Act Security may still be required to obtain
shareholder approval in connection with the acquisition of the stock or
assets of an affiliated company even if such transaction complies with
Rule 17a-8 if such transaction would require shareholder approval under
other applicable Exchange Rules, another
[[Page 55661]]
provision of the 1940 Act or the rules and regulations thereunder,
state law, or a fund's organizational documents.
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\15\ See supra footnote 7.
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Based on the above proposed changes, the Exchange proposes to
restructure Rules 14.10(e)(1)(A) and (E). Specifically, the Exchange
proposes to split Rule 14.10(e)(1)(A) into subparagraphs (i) and (ii).
Subparagraph (i) will provide the current exemptions for asset-backed
issuers and other passive issuers, while subparagraph (ii) will provide
for the proposed exemption of Rule 14.10(i)(1) applicable to issuers of
Portfolio Depository Receipts, as provided under Rule 14.11(b). The
Exchange also proposes to split existing Rule 14.10(e)(1)(E) into
subparagraphs (i), (ii), and (iii). Subparagraphs (i) and (ii) will
provide the current exemptions for management investment companies,
while subparagraph (iii) will provide for the proposed exemption of
Rule 14.10(i)(1) applicable to certain categories of investment
companies registered under the 1940 Act.
2. Statutory Basis
The Exchange believes the proposed rule change is consistent with
the Act and the rules and regulations thereunder applicable to the
Exchange and, in particular, the requirements of Section 6(b) of the
Act.\16\ Specifically, the Exchange believes the proposed rule change
is consistent with the Section 6(b)(5) \17\ requirements that the rules
of an exchange be 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 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.
Additionally, the Exchange believes the proposed rule change is
consistent with the Section 6(b)(5) \18\ requirement that the rules of
an exchange not be designed to permit unfair discrimination between
customers, issuers, brokers, or dealers.
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\16\ 15 U.S.C. 78f(b).
\17\ 15 U.S.C. 78f(b)(5).
\18\ Id.
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The Exchange believes that the proposed amendment is consistent
with the protection of investors as protections afforded by Rule 17a-8,
mean that (i) there is limited risk of dilution to existing
shareholders as a result of an issuance of shares by an issuer of 1940
Act Securities in connection with the acquisition of the stock or
assets of an affiliated company, and (ii) existing shareholders have a
reduced risk of being disenfranchised as a result of a Rule 17a-8-
compliant transaction that involves a director, officer, or substantial
shareholder of the listed company that has a significant interest in
the company or assets to be acquired or the consideration to be paid.
With respect to potential concerns about voting dilution, holders of
Portfolio Depository Receipts and management investment companies that
are Index Fund Shares, Managed Fund Shares, Managed Portfolio Shares,
ETF Shares, and Tracking Fund Shares either do not have the right to
elect directors at annual meetings or have the right to elect directors
only in very limited circumstances.
The Exchange further believes its proposal is consistent with the
protection of investors because its proposal is limited to registered
investment companies that are organized under the 1940 Act. In the case
of a merger of affiliated investment companies, the board of directors
of each investment company, including a majority of the directors that
are not interested persons of the respective investment company, must
affirmatively determine that (i) participation in the merger is in the
best interest of their respective investment company, and (ii) the
interests of their shareholders will not be diluted as a result of the
transaction. Where the shares issued by the surviving investment
company are issued at a price equal to the fund's net asset value, the
board of directors is able to conclude that the interests of
shareholders in such a transaction will not be diluted. With respect to
voting dilution, the Exchange notes that holders of 1940 Act Securities
have very limited voting rights, including no right to vote on the
annual election of a board of directors.
The Exchange believes that the same provisions of Rule 17a-8 that
protect against dilution also provide safeguards for existing
shareholders when the transaction involves a director, officer, or
substantial shareholder of the listed company that has a significant
interest in the company or assets to be acquired or the consideration
to be paid and therefore may benefit from the transaction. Because the
board of each merging company must make an affirmative determination
that the transaction is in the best interest of its investment company
that the transaction will not result in dilution for existing
shareholders, there is reduced concern that existing shareholders will
be disenfranchised as a result of the Exchange's proposed exemption.
The Exchange notes that while shareholders of the non-surviving
company must approve the merger under certain circumstances, Rule 17a-8
does not require the shareholders of the surviving company to approve
the transaction. Accordingly, the Exchange believes it is appropriate
to exempt issuers of 1940 Act Securities from the requirements of Rule
14.10(i)(1)in this same limited circumstance.
Notwithstanding the proposed exemption described above, the
Exchange notes that other provisions of Exchange rules or the 1940 Act
and the rules thereunder may require shareholder approval and will
still apply. In particular, the Exchange notes that the adopting
release for Rule 17a-8 specifically noted that nothing in Rule 17a-8
relieves a fund of its obligation to obtain shareholder approval as may
be required by state law or a fund's organizational documents.\19\
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\19\ See supra footnote 7.
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The Exchange believes it is not unfairly discriminatory to offer
the exemption only to issuers of 1940 Act Securities completing a
merger with an affiliated registered investment company, as opposed to
all issuers of securities listed pursuant to Exchange Rule 14.11,
because only 1940 Act Securities are subject to the requirements of the
1940 Act which offer the protections against dilution and self-dealing
described herein.
Lastly, the Exchange believes that the proposal is reasonable as it
is substantially similar to a recent rule amendment made by Arca.\20\
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\20\ See supra footnote 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 that is not necessary or appropriate
in furtherance of the purposes of the Act. The proposed amendment will
not impose any burden on competition, as they simply propose to offer
1940 Act Securities a limited exemption for the Exchange's shareholder
approval rule in a specific circumstance where the Exchange believes
there is a low risk of dilution to existing shareholders. Further, the
proposed rule change is substantively similar to Arca Rule 5.3E.
C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others
The Exchange neither solicited nor received comments on the
proposed rule change.
[[Page 55662]]
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
Because the 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 prior to
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, the proposed rule change has become
effective pursuant to Section 19(b)(3)(A) of the Act \21\ and Rule 19b-
4(f)(6) thereunder.\22\
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\21\ 15 U.S.C. 78s(b)(3)(A).
\22\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)(iii)
requires the Exchange to give the Commission written notice of the
Exchange's 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
Exchange has complied with this requirement.
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A proposed rule change filed under Rule 19b-4(f)(6) \23\ normally
does not become operative prior to 30 days after the date of the
filing. However, pursuant to Rule 19b-4(f)(6)(iii),\24\ the Commission
may designate a shorter time if such action is consistent with the
protection of investors and the public interest. The Exchange has asked
the Commission to waive the 30-day operative delay so that the proposal
may become operative immediately upon filing. The Exchange states that
waiver of the operative delay will provide certain investment companies
registered under the 1940 Act immediate relief from certain shareholder
approval requirements if the conditions of the rule as described above
are met. The Commission previously approved a substantively similar
rule change on Arca and found it consistent with the Section 6(b)(5) of
the Act.\25\ For these reasons, the Commission believes that the
proposed rule change presents no novel issues and that waiver of the
30-day operative delay is consistent with the protection of investors
and the public interest. Accordingly, the Commission hereby waives the
30-day operative delay and designates the proposal operative upon
filing.\26\
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\23\ 17 CFR 240.19b-4(f)(6).
\24\ 17 CFR 240.19b-4(f)(6)(iii).
\25\ See supra note 5.
\26\ For purposes only of waiving the 30-day operative delay,
the Commission has considered the proposed rule change's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
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At any time within 60 days of the filing of such proposed rule
change, the Commission summarily may temporarily suspend 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. If the Commission
takes such action, the Commission shall institute proceedings under
Section 19(b)(2)(B) \27\ of the Act to determine whether the proposed
rule change should be approved or disapproved.
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\27\ 15 U.S.C. 78s(b)(2)(B).
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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
<bullet> Use the Commission's internet comment form (<a href="http://www.sec.gov/rules/sro.shtml">http://www.sec.gov/rules/sro.shtml</a>); or
<bullet> Send an email to <a href="/cdn-cgi/l/email-protection#0c7e796069216f6361616962787f4c7f696f226b637a"><span class="__cf_email__" data-cfemail="e597908980c8868a8888808b9196a5968086cb828a93">[email protected]</span></a>. Please include
File Number SR-CboeBZX-2021-059 on the subject line.
Paper Comments
<bullet> 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-CboeBZX-2021-059. This
file number should be included on the subject line if email 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 website (<a href="http://www.sec.gov/rules/sro.shtml">http://www.sec.gov/rules/sro.shtml</a>).
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 website viewing and printing in
the Commission's Public Reference Room, 100 F Street NE, Washington, DC
20549, on official business days between the hours of 10:00 a.m. and
3:00 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. Persons submitting comments are
cautioned that we do not redact or edit personal identifying
information from comment submissions. You should submit only
information that you wish to make available publicly. All submissions
should refer to File Number SR-CboeBZX-2021-059, and should be
submitted on or before October 27, 2021.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\28\
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\28\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-21769 Filed 10-5-21; 8:45 am]
BILLING CODE 8011-01-P
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