[Federal Register Volume 86, Number 8 (Wednesday, January 13, 2021)]
[Notices]
[Pages 2712-2716]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-00465]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-90865; File No. SR-NYSE-2020-108]


Self-Regulatory Organizations; New York Stock Exchange LLC; 
Notice of Filing and Immediate Effectiveness of Proposed Rule Change To 
Extend Its Waiver of the Application of Certain of the Shareholder 
Approval Requirements in Section 312.03 of the NYSE Listed Company 
Manual Through March 31, 2021 Subject to Certain Conditions

January 7, 2021.
    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 28, 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 
and II 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 extend through and including March 31, 
2021 its waiver, subject to certain conditions, of the application of 
certain of the shareholder approval requirements set forth in Section 
312.03 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
    Pursuant to an earlier proposed rule change,\4\ the Exchange waived 
through and including June 30, 2020, subject to certain conditions, 
certain of the shareholder approval requirements set forth in Section 
312.03 of the Manual (the ``Waiver''). Subsequently, the Exchange 
extended the Waiver for the period through and including September 30, 
2020 \5\ and, thereafter, the

[[Page 2713]]

period through and including December 31, 2020. The Exchange now 
proposes to extend the Waiver through and including March 31. 2021.
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    \4\ See Securities Exchange Act Release No. 34-88572 (April 6, 
2020); 85 FR 20323 (April 10, 2020) (SR-NYSE-2020-30).
    \5\ See Securities Exchange Act Release No. 89219 (July 2, 2020; 
85 FR 41640 (July 10, 2020) (SR-NYSE-2020-58) (extending the Waiver 
through June 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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    It is important to note that the Waiver as it has been applied (and 
will continue to be applied pursuant to the proposed extension) does 
not apply to any sales of a listed company's securities where the use 
of proceeds is to fund an acquisition. As such, regardless of whether 
an issuance would otherwise meet all of the requirements for the 
Waiver, any issuance for which the intended use of proceeds is to fund 
one or more acquisitions remains subject to the shareholder approval 
requirements of Sections 312.03(b) and 312.03(c) and is ineligible for 
the benefits of the Waiver.
    The U.S. and global economies have experienced unprecedented 
disruption as a result of the ongoing spread of COVID-19, including 
severe limitations on companies' ability to operate their businesses 
and periods of volatility in the U.S. and global equity markets. The 
Exchange implemented the Waiver because it believed that it was likely 
that many listed companies would have urgent liquidity needs during 
this crisis period due to lost revenues and maturing debt obligations. 
In those circumstances, the Exchange believed that listed companies 
would need to access additional capital that might not be available in 
the public equity or credit markets.
    Since the implementation of the Waiver a number of listed companies 
have completed capital raising transactions that would not have been 
possible without the flexibility provided by the Waiver. While equity 
indices have recovered from the decline initially associated with the 
COVID-19 crisis, ongoing economic disruption and uncertainty associated 
with the pandemic have caused many listed companies to continue to face 
circumstances in which their businesses and revenues are severely 
curtailed. Such companies continue to experience difficulty in 
accessing liquidity from the public markets. In addition, there is 
continued uncertainty as to the course the COVID-19 pandemic may take 
in the coming months and the possibility of further disruption related 
to COVID-19 exists. Consequently, the Exchange believes it is 
appropriate to extend the application of the Waiver for an additional 
period through and including March 31, 2021, to provide more 
flexibility to listed companies that need to access capital in the 
current unusual economic conditions.
    Section 312.03 of the Manual, which requires listed companies to 
acquire shareholder approval prior to certain kinds of equity 
issuances, imposes significant limitations on the ability of a listed 
company to engage in the sort of large private placement transaction 
described above. The most important limitations are as follows:
     Issuance to a Related Party. Subject to an exception for 
early stage companies set forth therein, Section 312.03(b) of the 
Manual requires shareholder approval of any issuance to a director, 
officer or substantial security holder \6\ of the company (each a 
``Related Party'') or to an affiliate of a Related Party \7\ 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 permits cash sales to Related Parties and their affiliates 
that meet a market price test set forth in the rule (the ``Minimum 
Price'') \8\ and that relate to no more than 5% of the company's 
outstanding common stock. 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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    \6\ For purposes of Section 312.03(b), Section 312.04(e) 
provides that: ``An 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.''
    \7\ Under Section 312.03 of the Manual, a ``Related Party'' 
includes ``(1) a director, officer or substantial security holder of 
the company (each a ``Related Party''); (2) a subsidiary, affiliate 
or other closely-related person of a Related Party; or (3) any 
company or entity in which a Related Party has a substantial direct 
or indirect interest;''
    \8\ 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 if the regular 
session on Tuesday, then Monday's official closing price is used.
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     Transactions of 20% of More. 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 other than a public offering for 
cash. Section 312.03(c) includes an exception for transactions 
involving a cash sale of the company's securities that comply with the 
Minimum Price requirement and also meet the following definition of a 
``bona fide private financing,'' as set forth in Section 312.04(g):
    ``Bona fide private financing'' refers to a sale in which either:
    [cir] 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
    [cir] 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 five percent 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 expects that it will continue to be the case that 
certain companies during the course of the ongoing unusual economic 
conditions will urgently need to obtain new capital by selling equity 
securities in private placements.
    In many cases, such transactions may involve sales to existing 
investors in the company or their affiliates that would exceed the 
applicable 1% and 5% limits of Section 312.03(b). Given the ongoing 
economic disruption associated with the COVID-19 pandemic, the Exchange 
proposes to continue its partial waiver of the application of Section 
312.03(b) for the period as of the date of this filing through and 
including March 31, 2021, with the Waiver specifically limited to 
transactions that involve the sale of the company's securities for cash 
at a price that meets the Minimum Price requirement as set forth in 
Section 312.04.\9\ In addition, to qualify for the Waiver, a 
transaction must be reviewed and approved by the company's audit 
committee or a comparable committee comprised solely of independent 
directors.
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    \9\ See supra note 8.
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    This Waiver will continue to not be applicable to any transaction 
involving the stock or assets of another company where any director, 
officer or substantial security holder 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

[[Page 2714]]

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 (i.e., a 
transaction which would require shareholder approval under NASDAQ 
Marketplace Rule 5635(a)). Specifically, the Waiver will continue to 
not be applicable to a sale of securities by a 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 effect of the extension of the Waiver would be to allow 
companies to sell their securities to Related Parties and other persons 
subject to Section 312.03(b) \10\ without complying with the numerical 
limitations of that rule, as long as the sale is in a cash transaction 
that meets the Minimum Price requirement and also meets the other 
requirements noted above. As provided by Section 312.03(a), any 
transaction benefitting from the proposed waiver will still be subject 
to shareholder approval if required under any other applicable rule, 
including the equity compensation requirements of Section 303A.08 and 
the change of control requirements of Section 312.03(d).
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    \10\ See supra note 6.
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    Existing large investors are often the only willing providers of 
much-needed capital to companies undergoing difficulties and the 
Exchange believes that it is appropriate to increase companies' 
flexibility to access this source of capital for an additional limited 
period. The Exchange notes that, as a result of the extension of the 
Waiver, the Exchange's application of Section 312.03(b) will be 
consistent with the application of NASDAQ Marketplace Rule 5635(a) \11\ 
to sales of a listed company's securities to related parties during the 
Waiver period.
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    \11\ If a company is raising capital through a transaction, or 
series of transaction, via the waiver, they cannot use such capital 
to fund an acquisition.
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    Many private placement transactions under the current market 
conditions may also exceed the 20% threshold established by Section 
312.03(c). Therefore, given the ongoing economic disruption associated 
with the COIVD-19 pandemic, the Exchange also proposes to continue for 
the period through and including March 31, 2021, for purposes of the 
bona fide financing exception to the 20% requirement, its waiver of the 
5% limitation for any sale to an individual investor in a bona fide 
private financing pursuant to Section 312.03(c) and to permit companies 
to undertake a bona fide private financing during that period in which 
there is only a single purchaser. As provided by Section 312.03(a), any 
transaction benefitting from the Waiver will still be subject to 
shareholder approval if required under any other applicable rule, 
including the equity compensation requirements of Section 303A.08 and 
the change of control requirements of Section 312.03(d). Any 
transaction benefitting from the Waiver must be a sale of the company's 
securities for cash at a price that meets the Minimum Price 
requirement.
    The effect of the proposed extension of the Waiver would be that a 
listed company would be exempt from the shareholder approval 
requirement of Section 312.03(c) in relation to a private placement 
transaction regardless of its size or the number of participating 
investors or the amount of securities purchased by any single investor, 
provided that the transaction is a sale of the company's securities for 
cash at a price that meets the Minimum Price requirement. If any 
purchaser in a transaction benefiting from this waiver is a Related 
Party or other person subject to Section 312.03(b), such transaction 
must be reviewed and approved by the company's audit committee or a 
comparable committee comprised solely of independent directors. The 
Exchange notes that, as a result of the proposed extension of the 
Waiver, the Exchange's application of Section 312.03(c) will continue 
to be consistent during the Waiver period with the application of 
NASDAQ Marketplace Rule 5635(d) with respect to private placements 
relating to 20% or more of a company's common stock or voting power 
outstanding before such transaction.\12\
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    \12\ See supra note 11 which also applies to the waivers 
available under Section 312.03(c).
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    The Exchange notes that these temporary emergency waivers would 
simply continue to provide NYSE listed companies with the flexibility 
on a temporary emergency basis to consummate transactions without 
shareholder approval that would not require shareholder approval under 
the rules of the NASDAQ Stock Market, as the specific limitations the 
Exchange is proposing to waive do not exist in the applicable NASDAQ 
rules.\13\
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    \13\ See NASDAQ Marketplace Rule 5635, including specifically 
subsections (a) and (d) thereof.
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2. Statutory Basis
    The proposed rule change is consistent with Section 6(b) of the 
Act,\14\ in general, and furthers the objectives of Section 6(b)(5) of 
the Act,\15\ 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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    \14\ 15 U.S.C. 78f(b).
    \15\ 15 U.S.C. 78f(b)(5).
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    As a result of the economic disruption related to the ongoing 
spread of the COVID-19 virus, certain listed companies may experience 
urgent liquidity needs that they are unable to meet by raising funds in 
the public equity or credit markets. The proposed rule change is 
designed to provide temporary relief from certain of the NYSE's 
shareholder approval requirements in relation to stock issuances to 
provide companies with additional flexibility to raise funds by selling 
equity in private placement transactions during the current unusual 
economic conditions provided such transactions meet certain conditions, 
such as the Minimum Price as defined in Section 312.04(i). The proposed 
waivers are consistent with the protection of investors because any 
transaction benefiting from the waivers will not, in the Exchange's 
view, be dilutive to the company's existing shareholders as it will be 
subject to a minimum market price requirement and because the audit 
committee or a comparable committee comprised solely of independent 
directors will review and approve any transaction benefitting from a 
waiver that involves a Related Party or affiliates of a Related Party. 
In addition, as provided by Section 312.03(a), any transaction 
benefitting from the proposed waiver will still be subject to 
shareholder approval if required under any other applicable rule, 
including the equity compensation requirements of Section 303A.08 and 
the change of control requirements of

[[Page 2715]]

Section 312.03(d). All companies listed on the Exchange would be 
eligible to take advantage of the proposed temporary waivers.

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 change is 
not designed to address any competitive issues but rather is designed 
to provide temporary relief from certain of the NYSE's shareholder 
approval requirements in relation to stock issuances to provide 
companies with additional flexibility to raise funds by selling equity 
in private placement transactions during the current unusual economic 
conditions. In addition, the proposed waivers will simply temporarily 
conform the treatment of transactions benefitting from the waivers to 
their treatment under the comparable NASDAQ rules.

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

    The Exchange has filed the proposed rule change pursuant to Section 
19(b)(3)(A)(iii) of the Act \16\ and Rule 19b-4(f)(6) thereunder.\17\ 
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 \18\ and Rule 19b-
4(f)(6)(iii) thereunder.\19\
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    \16\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \17\ 17 CFR 240.19b-4(f)(6).
    \18\ 15 U.S.C. 78s(b)(3)(A).
    \19\ 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) \20\ normally 
does not become operative prior to 30 days after the date of the 
filing. However, pursuant to Rule 19b-4(f)(6)(iii),\21\ 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.
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    \20\ 17 CFR 240.19b-4(f)(6).
    \21\ 17 CFR 240.19b-4(f)(6)(iii).
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    The Exchange believes that the Waiver of the operative delay would 
be consistent with the protection of investors and the public interest 
because, in the Exchange's view, the economic disruption caused by the 
global spread of the COVID-19 virus may give rise to companies 
experiencing urgent liquidity needs which they may need to meet by 
undertaking transactions that would benefit from the proposed relief. 
In support of its request to waive the 30-day operative delay, the 
Exchange stated, among other things, its belief that the proposed 
Waiver does not give rise to any novel investor protection concerns, as 
the proposed rule change conforms the NYSE's shareholder approval 
requirements temporarily to those of NASDAQ and would not permit any 
transactions without shareholder approval that are not permitted on 
another exchange. In addition, the Exchange stated that all 
transactions utilizing the Waiver would have to satisfy the Minimum 
Price requirement contained in the rule and be reviewed and approved by 
the issuer's audit committee or comparable committee of the board 
comprised entirely of independent directors if any transactions 
benefitting from the Waiver involve a Related Party or affiliates of a 
Related Party, as described above.\22\ Furthermore, the Exchange has 
stated that, as provided by Section 312.04(a) of the Manual, any 
transaction benefitting from the proposed Waiver will still be subject 
to shareholder approval if required under any other applicable rule, 
including the equity compensation requirements of Section 303A.08 of 
the Manual and the change of control requirements of Section 312.03(d) 
of the Manual. The Exchange also noted that the proposed Waiver is 
temporary in nature and will only be applied through and including 
March 31, 2021.
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    \22\ The Commission notes that, as described in the purpose 
section above, all transactions utilizing the Waiver for purposes of 
Section 312.03(b) would be subject to review and approval by an 
audit committee or comparable body of independent directors. As to 
transactions utilizing the temporary Waiver under Section 312.03(c) 
all transactions involving Related Parties or other persons subject 
to Section 312.03(b), as described above, must be reviewed and 
approved by the company's audit committee or a comparable committee 
comprised solely of independent directors.
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    The Commission notes that the proposed rule change would provide a 
temporary waiver of certain shareholder approval requirements under 
certain conditions in light of current economic conditions due to 
COVID-19. As noted by NYSE, the Waiver is consistent with NASDAQ's 
shareholder approval rules and would not permit any transactions 
without shareholder approval that is not permitted on another 
exchange.\23\ In addition, all transactions utilizing the Waiver would 
have to satisfy the Minimum Price requirement which is a market related 
price, as defined above.\24\ Further, all transactions subject to the 
Waiver that involve Related Parties or affiliates of Related Parties 
would have to be approved by the listed company's audit committee or 
comparable committee of the board comprised entirely of independent 
directors. In addition, the Commission notes that the Waiver of the 
shareholder approval provisions only applies to the specific provisions 
in Sections 312.03(b) and (d) of the Manual discussed above and any 
transaction utilizing the Waiver would still be subject to all other 
shareholder approval requirements including, for example, the equity 
compensation requirements of Section 303A.08 and the change of control 
requirements of Section 312.03(d). The Commission also notes that the 
proposal is a temporary measure designed to allow companies to raise 
necessary capital at market related prices without shareholder approval 
under the limited conditions discussed above in response to current, 
unusual economic conditions. For these reasons, the Commission believes 
that waiver of the 30-day operative delay is consistent with the 
protections of investors and the public interest. According, the 
Commission hereby waives the 30-day operative delay and designates the 
proposal operative upon filing.\25\
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    \23\ In addition, as noted above, if a company is raising 
capital through a transaction, or series of transactions, via the 
Waiver, they cannot use such capital to fund an acquisition.
    \24\ See supra note 8.
    \25\ For purposed only of waiving the 30-day operative delay, 
the Commission has considered the proposed rule'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

[[Page 2716]]

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) \26\ of the Act to determine 
whether the proposed rule change should be approved or disapproved.
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    \26\ 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 rule-comments@sec.gov. Please include 
File Number SR-NYSE-2020-108 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-2020-108. 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-2020-108, and should be submitted 
on or before February 3, 2021.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\27\
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    \27\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-00465 Filed 1-12-21; 8:45 am]
BILLING CODE 8011-01-P


