[Federal Register Volume 86, Number 1 (Monday, January 4, 2021)]
[Notices]
[Pages 148-152]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-29020]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-90803; File No. SR-NYSE-2020-85]


Self-Regulatory Organizations; New York Stock Exchange LLC; 
Notice of Filing of Proposed Rule Change To Amend the NYSE Listed 
Company Manual To Revise the Shareholder Approval Requirements in 
Sections 312.03 and 312.04 and the Requirements for Related Party 
Transactions in Section 314.00

December 28, 2020.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of 
1934 (the ``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby 
given that, on December 16, 2020, New York Stock Exchange LLC (``NYSE'' 
or the ``Exchange'') filed with the Securities and Exchange Commission 
(the ``Commission'') the proposed rule change as described in Items I, 
II, and III below, which Items have been prepared by the self-
regulatory organization. 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\ 15 U.S.C. 78a.
    \3\ 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 Sections 312.03, 312.04 and 314.00 
of the NYSE Listed Company Manual (``Manual''). The proposed rule 
change is available on the Exchange's website at www.nyse.com, at the 
principal office of the Exchange, 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 self-regulatory organization 
included statements concerning the purpose of, and basis for, the 
proposed rule change and discussed any comments it received on the 
proposed rule change. The text of those statements may be examined at 
the places specified in Item IV below. The Exchange has prepared 
summaries, set forth in sections A, B, and C below, of the most 
significant parts of such statements.

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

1. Purpose
    Paragraphs (b) and (c) of Sections 312.03 of the Manual require 
listed companies to obtain shareholder approval prior to certain kinds 
of equity issuances. The Exchange believes that these requirements can 
make it unnecessarily difficult for listed companies to raise necessary 
capital in private placement transactions that are in the interests of 
the company and its shareholders. Consequently, the Exchange proposes 
to modify these provisions, bringing its shareholder approval 
requirements into closer alignment with those of Nasdaq and NYSE 
American,\4\ by providing listed companies with flexibility that exists 
under the rules of those other listing markets. The Exchange has waived 
certain requirements under Section 312.03 to provide listed companies 
with greater flexibility to raise capital during the COVID-19 
crisis.\5\ Among other things, the current proposal includes amendments 
that are identical in effect to the current waiver. The Exchange has 
observed that a significant number of companies have benefited from the 
flexibility provided by the waiver and has not observed any significant 
problems associated with companies' completion of transactions 
permitted by the waiver.
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    \4\ See Nasdaq Marketplace Rule 5635 and NYSE American Company 
Guide Sections 712 and 713.
    \5\ See Securities Exchange Act Release No. 34-88572 (April 6, 
2020); 85 FR 20323 (April 10, 2020) (SR-NYSE-2020-30). (waiving 
certain requirements of Section 312.03 through June 30, 2020). See 
also Securities Exchange Act Release No. 89219 (July 2, 2020); 85 FR 
41640 (July 10, 2020) (SR-NYSE-2020-58) (extending the waiver 
through September 30, 2020). See also Securities Exchange Act 
Release No. 90020 (September 28, 2020); 85 FR 62357 (October 2, 
2020) (SR-NYSE-2020-79) (extending the waiver through December 31, 
2020).
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Proposed Amendments to Section 312.03(b)
    Subject to an exception for early stage companies set forth 
therein, Section 312.03(b) of the Manual requires shareholder approval 
of certain issuances of common stock, or securities convertible into or 
exercisable for common stock, to:
     A director, officer or substantial security holder \6\ of 
the company (each

[[Page 149]]

a ``Related Party'' for purposes of Section 312.03(b));
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    \6\ For purposes of Section 312.03, Section 312.04(e) provides 
that: ``[a]n interest consisting of less than either five percent of 
the number of shares of common stock or five percent of the voting 
power outstanding of a company or entity shall not be considered a 
substantial interest or cause the holder of such an interest to be 
regarded as a substantial security holder.''
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     a subsidiary, affiliate, or other closely related person 
of a Related Party; or
     Any company or entity in which a Related Party has a 
substantial direct or indirect interest.
    This prior shareholder approval is required if the number of shares 
of common stock to be issued, or if the number of shares of common 
stock into which the securities may be convertible or exercisable, 
exceeds either 1% of the number of shares of common stock or 1% of the 
voting power outstanding before the issuance. A limited exception to 
these shareholder approval requirements permits cash sales relating to 
no more than 5% of the number of shares of common stock or voting power 
outstanding that meet a Minimum Price test set forth in the rule (the 
``Minimum Price'').\7\ However, this exception may only be used if the 
Related Party in question has Related Party status solely because it is 
a substantial security holder of the company.
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    \7\ Section 312.04(i) defines the ``Minimum Price'' as follows: 
``Minimum Price'' means a price that is the lower of: (i) The 
Official Closing Price immediately preceding the signing of the 
binding agreement; or (ii) the average Official Closing Price for 
the five trading days immediately preceding the signing of the 
binding agreement.
    Section 312.04(j) defines ``Official Closing Price'' as follows: 
``Official Closing Price'' of the issuer's common stock means the 
official closing price on the Exchange as reported to the 
Consolidated Tape immediately preceding the signing of a binding 
agreement to issue the securities. For example, if the transaction 
is signed after the close of the regular session at 4:00 p.m. 
Eastern Standard Time on a Tuesday, then Tuesday's official closing 
price is used. If the transaction is signed at any time between the 
close of the regular session on Monday and the close of the regular 
session on Tuesday, then Monday's official closing price is used.
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    The Exchange proposes to amend Section 312.03(b) in several 
respects.
     The Exchange proposes to modify the class of persons with 
respect to which an issuance of common stock would require a listed 
company to seek shareholder approval. Specifically, Section 312.03(b) 
as amended would require prior shareholder approval for issuances of 
common stock to directors, officers, and substantial securityholders 
(``Related Party'') and would no longer require such approval for 
issuances to such Related Parties' subsidiaries, affiliates or other 
closely related persons or to entities in which a Related Party has a 
substantial interest (except where a Related Party has a 5% or greater 
interest in the counterparty, as described below). In making this 
change, the Exchange is harmonizing its approach to the regulation of 
issuances to related parties with that of Nasdaq and NYSE American, as 
both of those markets focus their shareholder approval requirements 
solely on the regulation of the Related Parties themselves and not on 
closely related persons of Related Parties.
     As proposed to be amended, Section 312.03(b) would require 
shareholder approval of cash sales to Related Parties (as such term is 
defined in Section 312.03(b)) only if the price is less than the 
Minimum Price. Accordingly, Section 312.03(b) would no longer require 
shareholder approval of issuances in a cash sale that meet the Minimum 
Price requirement to a Related Party where the number of shares of 
common stock to be issued, or the number of shares of common stock into 
which the securities may be convertible or exercisable, exceeds either 
5% of the number of shares of common stock or 5% of the voting power 
outstanding before the issuance. However, cash sales to Related Parties 
that meet the Minimum Price requirement would be subject to the same 
limitations as cash sales to all other investors under the proposed 
amended Section 312.03(c), as described below. In addition, cash sales 
relating to more than 1% of the issuer's common stock or voting power 
prior to the issuance to a Related Party for prices below the Minimum 
Price will continue to be subject to shareholder approval under Section 
312.03(b) (this requirement is not included in the Nasdaq or NYSE 
American rules).
     The Exchange proposes to require shareholder approval of 
any transaction or series of related transactions in which any Related 
Party 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 and the present or potential issuance of common stock, or 
securities convertible into common stock, could result in an increase 
in outstanding common shares of 5% or more. This proposed provision is 
substantively identical to the only limitation placed specifically on 
issuances to related parties in the Nasdaq and NYSE American rules. The 
Exchange would also continue to require shareholder approval of any 
sale of securities by a listed company to a Related Party in a 
transaction, or series of transactions, whose proceeds will be used to 
fund an acquisition of stock or assets of another company where such 
Related Party has a direct or indirect interest in the company or 
assets to be acquired or in the consideration to be paid for such 
acquisition.
     The Exchange proposes to delete from Section 312.03(b) two 
provisions that will no longer be relevant as they relate to 
transactions that benefit from exemptions from shareholder approval 
under current Section 312.03(b), but would be exempt from shareholder 
approval under the general application of Section 312.03(b) as proposed 
to be amended. These provisions relate to: (i) Cash sales meeting the 
Minimum Price test and relating to no more than 5% of the number of 
shares of common stock or 5% of the voting power outstanding before the 
issuance to a Related Party where the Related Party involved in the 
transaction is classified as such solely because such person is a 
substantial security holder; and (ii) the Early Stage Company 
exemption, to which the Exchange proposes to remove the reference from 
Section 312.04 as it will no longer be needed. For the same reason, the 
Exchange proposes to delete from Section 312.03(b) a sentence that 
provides that the Early Stage Company exemption is not applicable to a 
sale of securities by the listed company to any person subject to the 
provisions of Section 312.03(b) in a transaction, or series of 
transactions, whose proceeds will be used to fund an acquisition of 
stock or assets of another company where such person has a direct or 
indirect interest in the company or assets to be acquired or in the 
consideration to be paid for such acquisition.
    The Exchange notes that Section 312.03(b) would continue to include 
text stating that any sale of stock to an employee, director or service 
provider is also subject to the equity compensation rules in Section 
303A.08 of the Manual and stating that shareholder approval is required 
if any of the subparagraphs of Section 312.03 require such approval, 
notwithstanding that the transaction does not require approval under 
Section 312.03(b) or one or more of the other subparagraphs.
    There would continue to be other significant protections for 
shareholders with respect to a company's sales of securities. Firstly, 
Section 314.00 of the Manual in its proposed amended form will provide 
that transactions with related parties, such as those in which a 
director, officer or substantial securityholder has an interest, must 
be reviewed and approved by the company's audit committee or another 
body of independent directors. Furthermore, there are other significant 
protections under other paragraphs of Section 312.03, including a 
requirement of shareholder approval for any sale for less than the 
Minimum Price relating to 20% or more of the issuer's outstanding

[[Page 150]]

common stock or voting power prior to such issuance. This requirement 
means that any economically dilutive transaction would be subject to 
shareholder approval. In addition, any related party sale that gives 
rise to a change of control would be subject to shareholder approval 
under Section 312.03(d).
    The Exchange believes that the continuation of the important 
limitations with respect to related party issuances as described above 
(including the review of such transactions under Section 314.00 and the 
continued application of the shareholder approval requirements with 
respect to equity compensation set forth in Section 303A.08) would 
continue to provide shareholders of NYSE listed companies with 
protections in relation to issuances to related parties (including 
Related Parties as such term is defined in Section 312.03(b) In 
particular, the Exchange notes that the continued shareholder approval 
requirement for cash sales to Related Parties relating to more than 1% 
of the company's outstanding common stock that do not meet the Minimum 
Price requirement is an important protection not provided by the Nasdaq 
or NYSE American rules. The proposed amendments would make the 
Exchange's rules for cash sales to related parties substantively 
identical to those of Nasdaq and NYSE American for issuances that meet 
the Minimum Price test and the Exchange believes that the long 
experience of those other markets in applying those substantially 
identical rules provides evidence that they provide an appropriate 
level of investor protection.
Proposed Amendments to Section 312.03(c)
    Section 312.03(c) of the Manual requires shareholder approval of 
any transaction relating to 20% or more of the company's outstanding 
common stock or 20% of the voting power outstanding before such 
issuance, but provides the following exceptions: (1) Any public 
offering for cash; (2) any bona fide private financing involving a cash 
sale of the company's securities that comply with the Minimum Price 
requirement. As set forth in Section 312.04(g), a ``bona fide private 
financing'' (``Bona Fide Private Financing'') refers to a sale in which 
either:
     A registered broker-dealer purchases the securities from 
the issuer with a view to the private sale of such securities to one or 
more purchasers; or
     the issuer sells the securities to multiple purchasers, 
and no one such purchaser, or group of related purchasers, acquires, or 
has the right to acquire upon exercise or conversion of the securities, 
more than 5% of the shares of the issuer's common stock or more than 
five percent of the issuer's voting power before the sale.
    The Exchange proposes to replace the reference to ``bona fide 
private financing'' in Section 312.03(c) with ``other financing (that 
is not a public offering for cash) in which the company is selling 
securities for cash.'' This change would eliminate the 5% limit for any 
single purchaser participating in a transaction relying on the 
exemption.\8\ In addition, as any sale to a broker-dealer under the 
current Bona Fide Private Financing exception would also qualify for an 
exception to shareholder approval under the proposed amended exemption, 
there is no need to retain a separate provision for sales made to 
broker-dealers. The Exchange also proposes to amend Section 312.03(c) 
to provide that, if any of the proceeds of such a financing will be 
paid in an acquisition and the securities generating such proceeds when 
combined with any securities issued in connection with such acquisition 
exceed either 20% of the number of shares of common stock or 20% of the 
voting power outstanding before the issuance, then shareholder approval 
is required. Finally, as the Bona Fide Private Financing term will no 
longer be used in Section 312.03(c), the Exchange proposes to delete 
the definition of that term in Section 312.04(g).
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    \8\ While the proposed amended exemption would not limit the 
size of any transaction that meets the Minimum Price test, any such 
transaction giving rise to a change of control will be subject to 
shareholder approval under Section 312.03(d).
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    The Exchange notes that the proposed amendments to Section 
312.03(c) do not change the rule as it relates to issuances in non-cash 
transactions or in cash transactions for a price below the Minimum 
Price. Instead, in replacing the Bona Fide Private Financing exception 
with the revised exemption described in the immediately preceding 
paragraph, the proposed amendment would only remove a limitation in the 
Bona Fide Private Financing exception that limits the participation of 
any single investor in a Minimum Price cash sale of more than 5% of the 
shares or voting power. The Exchange believes that this change is 
consistent with the protection of investors because the Minimum Price 
requirement protects against a sale using the exception resulting in 
economic dilution. Further, the separately applicable requirements of 
Section 312.03(d) require that the shareholders approve any transaction 
that would result in a change of control.
    The proposed amendments would make the Exchange's rules for cash 
sales of securities that meet the Minimum Price test substantively 
identical to those of Nasdaq and NYSE American and the Exchange 
believes that the long experience of those other markets in applying 
those substantially identical rules provides evidence that they provide 
an appropriate level of investor protection.
Deletion of Section 312.03T
    Section 312.03T was adopted to provide temporary relief from 
certain of the requirements of Section 312.03 during the COVID-19 
pandemic. Section 312.03T was applicable by its terms through June 30, 
2020. As that date has passed, the Exchange now proposes to delete 
Section 312.03T in its entirety, as it is no longer applicable.
Amendment to Section 314.00
    In its current form, Section 314.00 provides that related party 
transactions normally include transactions between officers, directors, 
and principal shareholders and the company and that each related party 
transaction is to be reviewed and evaluated by an appropriate group 
within the listed company involved. The current rule further states 
that, while the Exchange does not specify who should review related 
party transactions, the Exchange believes that the Audit Committee or 
another comparable body might be considered as an appropriate forum for 
this task.
    The Exchange proposes to amend the first paragraph of Section 
314.00.\9\ The proposed new rule text strengthens the rule in two 
important respects:
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    \9\ The Second paragraph of Section 314.00 will be retained in 
its entirety. It reads as follows:
    The Exchange will continue to review proxy statements and other 
SEC filings disclosing related party transactions and where such 
situations continue year after year, the Exchange will remind the 
listed company of its obligation, on a continuing basis, to evaluate 
each related party transaction and determine whether or not it 
should be permitted to continue.
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     For purposes of Section 314.00, the term ``related party 
transaction'' refers to transactions required to be disclosed pursuant 
to Item 404 of Regulation S-K under the Securities Exchange Act. In the 
case of foreign private issuers, the term ``related party 
transactions'' refers to transactions required to be disclosed pursuant 
to Form 20-F, Item 7.B.
     Related party transactions under the rule as amended must 
be reviewed by either the company's audit committee or another 
independent body of the board of directors and the audit committee or 
such other body may prohibit such a transaction if it determines it to 
be

[[Page 151]]

inconsistent with the interests of the company.\10\
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    \10\ The Exchange proposes to delete from Section 314.00 a 
sentence that reads as follows: ``Following the review, the company 
should determine whether or not a particular relationship serves the 
best interests of the company and its shareholders and whether the 
relationship should be continued or eliminated.'' This sentence is 
no longer necessary, as the proposed amended rule gives the audit 
committee or other independent body of the board the authority to 
prohibit any related party transaction it reviews.
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2. Statutory Basis
    The proposed rule change is consistent with Section 6(b) of the 
Act,\11\ in general, and furthers the objectives of Section 6(b)(5) of 
the Act,\12\ in particular, in that it is designed to prevent 
fraudulent and manipulative acts and practices, to promote just and 
equitable principles of trade, to foster cooperation and coordination 
with persons engaged in facilitating transactions in securities, to 
remove impediments to and perfect the mechanism of a free and open 
market and a national market system, and, in general, to protect the 
public interest and the interests of investors, and because it is not 
designed to permit unfair discrimination between customers, issuers, 
brokers, or dealers.
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    \11\ 15 U.S.C. 78f(b).
    \12\ 15 U.S.C. 78f(b)(5).
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    The Exchange believes that the proposed amendments to Section 
312.03(b) are designed to protect the public interest and the interests 
of investors because there would continue to be other significant 
protections for shareholders with respect to sales of securities to 
related parties. Firstly, Section 314.00 of the Manual, as proposed to 
be amended, will provide that related party transactions, such as those 
in which a director, officer or substantial securityholder has an 
interest, are required to be reviewed and approved by the issuer's 
audit committee or another group of independent directors. Furthermore, 
there are other significant protections under other paragraphs of 
Section 312.03, including any sale relating to 20% or more of the 
issuer's common stock or voting power immediately preceding this 
issuance for less than the Minimum Price. This requirement means that 
any economically dilutive transaction would be subject to shareholder 
approval. The Exchange notes that Section 312.03(c) applies to any 
transaction or series of related transactions, which provides 
shareholders with further protection by ensuring that a company cannot 
avoid the shareholder approval requirement by separating an overall 
transaction into smaller separate transactions that would not 
individually require shareholder approval. In addition, any related 
party sale that gives rise to a change of control will be subject to 
shareholder approval under Section 312.03(d). The Exchange believes 
that the continuation of the important limitations with respect to 
related party issuances as described above (including the review of 
such transactions under Section 314.00 and the continued application of 
the shareholder approval requirements with respect to equity 
compensation set forth in Section 303A.08) would continue to provide 
shareholders of NYSE listed companies with protections in relation to 
issuances to related parties (including Related Parties as such term is 
defined in Section 312.03(b)). In particular, the Exchange notes that 
the continued shareholder approval requirement for cash sales to 
Related Parties that relate to more than 1% of the company's 
outstanding common stock or voting power and do not meet the Minimum 
Price requirement is an important protection not provided by the Nasdaq 
or NYSE American rules. The proposed amendments would make the 
Exchange's rules for cash sales to related parties substantively 
identical to those of Nasdaq and NYSE American for issuances that meet 
the Minimum Price test and the Exchange believes that the long 
experience of those other markets in applying those substantially 
identical rules provides evidence that they provide an appropriate 
level of investor protection.
    The Exchange believes that the proposed amendments to Section 
312.03(c) are also designed to protect the public interest and the 
interests of investors. The Exchange notes that the proposed amendments 
to Section 312.03(c) do not change the rule as it relates to issuances 
in non-cash transactions or to cash transactions for a price below the 
Minimum Price. The sole purpose of the amendment is to remove an 
arbitrary limitation in the Bona Fide Private Financing exception that 
limits the participation of any single investor in a Minimum Price cash 
sale to 5%. The Exchange believes that this change is consistent with 
the protection of investors because the Minimum Price requirement 
provides protection against economic dilution, while the separately 
applicable requirements of Section 312.03(d) provide that shareholders 
will have a vote on any transaction that would result in a change of 
control. The proposed amendments would also make the Exchange's rules 
for cash sales of securities that meet the Minimum Price test 
substantively identical to those of Nasdaq and NYSE American and the 
Exchange believes that the long experience of those other markets in 
applying those substantially identical rules provides evidence that 
they provide an appropriate level of investor protection.
    The Exchange believes that the proposed amendments to Section 
314.00 are also designed to protect the public interest and the 
interests of investors. By proposing to use the definition of a related 
party transaction in SEC disclosure rules, the Exchange is providing 
greater clarity to both issuers and investors as to when the rule must 
be applied. By proposing to require that transactions subject to the 
rule must be reviewed and approved by either the audit committee or 
another body of independent directors, the Exchange is making the 
requirement more explicit and preventing any listed issuer from giving 
that role to any group that is not entirely made up of independent 
directors.

B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change would 
impose any burden on competition that is not necessary or appropriate 
in furtherance of the purposes of the Act. The proposed rule changes 
will conform the shareholder approval requirements of the NYSE to those 
of Nasdaq and NYSE American in certain respects and therefore enhances 
competition among listing exchanges. As all listed companies will be 
subject to the same shareholder approval and related party transaction 
approval requirements, the proposal does not impose any burden on 
competition among listed issuers.

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

    No written comments were solicited or received with respect to the 
proposed rule change.

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

    Within 45 days of the date of publication of this notice in the 
Federal Register or up to 90 days (i) as the Commission may designate 
if it finds such longer period to be appropriate and publishes its 
reasons for so finding or (ii) as to which the self-regulatory 
organization consents, the Commission will:
    (A) By order approve or disapprove the proposed rule change, or

[[Page 152]]

    (B) institute proceedings to determine whether the proposed rule 
change should be disapproved.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the proposed rule 
change is consistent with the Act. Comments may be submitted by any of 
the following methods:

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
File Number SR-NYSE-2020-85 on the subject line.

Paper Comments

     Send paper comments in triplicate to: Secretary, 
Securities and Exchange Commission, 100 F Street NE, Washington, DC 
20549-1090.

All submissions should refer to File Number SR-NYSE-2020-85. 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 (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 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-NYSE-2020-85 and should be submitted on 
or before January 25, 2021.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\13\
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    \13\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020-29020 Filed 12-31-20; 8:45 am]
BILLING CODE 8011-01-P