[Federal Register Volume 86, Number 191 (Wednesday, October 6, 2021)]
[Notices]
[Pages 55659-55662]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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 (http://markets.cboe.com/us/equities/regulation/rule_filings/bzx/), 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.

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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

     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-CboeBZX-2021-059 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-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 (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-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