[Federal Register Volume 86, Number 234 (Thursday, December 9, 2021)]
[Notices]
[Pages 70150-70155]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-26625]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-93714; File No. SR-NYSE-2021-42]


Self-Regulatory Organizations; New York Stock Exchange LLC; Order 
Instituting Proceedings To Determine Whether To Approve or Disapprove a 
Proposed Rule Change To Amend the Requirements of Section 102.06 of the 
NYSE Listed Company Manual To Allow an Acquisition Company To 
Contribute a Portion of Its Trust Account to a New Acquisition Company 
and Spin-Off the New Acquisition Company to Its Shareholders

December 3, 2021.

I. Introduction

    On August 23, 2021, the New York Stock Exchange LLC (``NYSE'' or 
``Exchange'') filed with the Securities and Exchange Commission 
(``Commission''), pursuant to Section 19(b)(1) of the Securities 
Exchange Act of 1934 (``Act'' or ``Exchange Act'') \1\ and Rule 19b-4 
thereunder,\2\ a proposed rule change to amend the requirements of 
Section 102.06 of the NYSE Listed Company Manual (``Manual'') to allow 
an acquisition company to contribute a portion of the amount held in 
its trust account to a trust account of a new acquisition company and 
spin off the new acquisition company to its shareholders in certain 
situations. The proposed rule change was published for comment in the 
Federal Register on September 8, 2021.\3\ On September 30, 2021, 
pursuant to Section 19(b)(2) of the Act,\4\ the Commission designated a 
longer period within which to approve the proposed rule change, 
disapprove the proposed rule change, or institute proceedings to 
determine whether to disapprove the proposed rule change.\5\

[[Page 70151]]

This order institutes proceedings pursuant to Section 19(b)(2)(B) of 
the Act \6\ to determine whether to approve or disapprove the proposed 
rule change.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 92839 (September 1, 
2021), 86 FR 50408 (``Notice''). Comments received on the proposal 
are available on the Commission's website at: https://www.sec.gov/comments/sr-nyse-2021-42/srnyse202142.htm.
    \4\ 15 U.S.C. 78s(b)(2).
    \5\ See Securities Exchange Act Release No. 93222, 86 FR 55671 
(October 6, 2021). The Commission designated December 7, 2021 as the 
date by which the Commission shall approve or disapprove, or 
institute proceedings to determine whether to approve or disapprove, 
the proposed rule change.
    \6\ 15 U.S.C. 78s(b)(2)(B).
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II. Description of the Proposed Rule Change

    In 2008, the Exchange adopted a rule to allow companies that have 
no prior operating history and that have indicated their business plan 
is to consummate a business combination with one or more operating 
businesses or assets (``Business Combination'') \7\ to list on the 
Exchange if they meet all applicable initial listing requirements, as 
well as additional conditions designed to provide investor protections 
to address specific concerns about the structure of such companies 
(``Acquisition Companies'' or ``ACs'').\8\ These additional conditions 
generally require, among other things, that at least 90% of the 
proceeds from the initial public offering (``IPO'') and any concurrent 
sale of the AC's equity securities be held in a trust account 
controlled by an independent custodian and that the AC complete within 
three years (or such shorter period specified by the AC's constitutive 
documents or by contract) a Business Combination having a fair market 
value of at least 80% of the net assets held in the trust account at 
the time of the agreement to enter into the initial combination (net of 
amounts disbursed to management for working capital purposes and 
excluding the amount of any deferred underwriting discount held in 
trust).\9\ Section 102.06 of the Manual further requires that each 
Business Combination be approved by a majority of the AC's independent 
directors.\10\ If the AC holds a shareholder vote on a Business 
Combination, the Business Combination must be approved by a majority of 
the votes cast at the meeting and public shareholders voting against 
the Business Combination must have the right to convert their shares of 
common stock into a pro rata share of the aggregate amount then on 
deposit in the trust account (net of taxes payable and amounts 
distributed to management for working capital purposes) if the Business 
Combination is approved and consummated.\11\ If a shareholder vote on a 
Business Combination is not held, the AC must provide all shareholders 
with the opportunity to redeem all their shares for cash equal to their 
pro rata share of the aggregate amount then in the deposit account (net 
of taxes payable and amounts distributed to management for working 
capital purposes), pursuant to Rule 13e-4 and Regulation 14E under the 
Act, which regulate issuer tender offers.\12\
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    \7\ Section 102.06 of the Manual provides that a Business 
Combination may be in the form of a merger, capital stock exchange, 
asset acquisition, stock purchase, reorganization, or similar 
business combination with one or more operating businesses or 
assets.
    \8\ See Securities Exchange Act Release No. 57785 (May 6, 2008), 
73 FR 27597 (May 13, 2008) (SR-NYSE-2008-17) (``2008 Order''). See 
also Section 102.06 of the Manual. Acquisition Companies are also 
known as ``Special Purpose Acquisition Companies'' or ``SPACs.''
    \9\ See Section 102.06 of the Manual.
    \10\ See Section 102.06(d) of the Manual.
    \11\ See Section 102.06(a) and (b) of the Manual.
    \12\ See Section 102.06(c) of the Manual.
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    The Exchange now proposes to modify Section 102.06 of the Manual to 
allow an AC listed under that rule to contribute a portion of the 
amount held in its trust account to the trust account of a new entity 
in a spin-off or similar corporate transaction (``SpinCo AC''). 
According to the Exchange, when an AC conducts its IPO, it raises the 
amount of capital that it estimates will be necessary to finance a 
subsequent Business Combination with its ultimate target; however, the 
Exchange believes that because an AC cannot identify or select a 
specific target at the time of its IPO, often the amount raised is not 
optimal for the needs of a specific target.\13\ The Exchange states 
that it is proposing to modify Section 102.06 of the Manual to permit 
what it believes is a more efficient structure whereby an AC can raise 
in its IPO the maximum amount of capital it anticipates it may need for 
a Business Combination transaction and then ``rightsize'' itself by 
contributing any amounts not needed to a SpinCo AC, which would be 
subject to the provisions of Section 102.06, in the same manner as the 
original AC, and spun off to the original AC's shareholders.\14\
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    \13\ See Notice, supra note 3, at 50409. The Exchange further 
states that ``[t]his has resulted in the inefficient, current 
practice of AC sponsors creating multiple ACs of different sizes at 
the same time, with the intention to use the AC that is closest in 
size to the amount a particular target needs.'' Id.
    \14\ See id. The three-year period to complete a Business 
Combination under Section 102.06 of the Manual would, however, be 
calculated for each SpinCo AC based on the date of the original AC's 
effective registration statement.
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    Specifically, proposed Section 102.06 of the Manual would provide 
that an AC will be permitted to contribute (the ``Contribution'') in a 
spin-off or similar corporate transaction a portion of the amount held 
in the AC's trust account to a trust account of another entity as 
provided below:
    (i) In connection with the Contribution, each AC public shareholder 
has the right, through one or more corporate transactions, to redeem a 
portion of its shares of common stock or units, as applicable, for its 
pro rata portion of the amount of the Contribution in lieu of being 
entitled to receive shares or units in the SpinCo AC;
    (ii) the requirement of Section 102.06 of the Manual that the AC 
provide each public shareholder voting against a Business Combination 
with the right to convert its shares of common stock into a pro rata 
share of the aggregate amount then on deposit in the trust account (net 
of taxes payable, and amounts disbursed to management for working 
capital purposes), provided that the Business Combination is approved 
and consummated, will be considered satisfied by pro rata distribution 
to such shareholders of the amounts in the trust account after having 
been reduced by the Contribution;
    (iii) the public shareholders of the AC receive shares or units of 
the SpinCo AC on a pro rata basis, except to the extent they have 
elected to redeem a portion of their shares of the AC in lieu of being 
entitled to receive shares or units in the SpinCo AC;
    (iii) \15\ the Contribution will remain in a trust account for the 
benefit of the shareholders of the SpinCo AC in the manner required for 
ACs listed under Section 102.06 of the Manual;
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    \15\ The Exchange's proposed rule mistakenly includes two 
paragraphs numbered Section 102.06(iii).
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    (iv) the SpinCo AC meets all applicable initial listing 
requirements for an AC listing in connection with an initial public 
offering under Section 102.06 of the Manual; it being understood that, 
following such spin-off or similar corporate transaction:
    (A) The 80% described in the first paragraph of Section 102.06 \16\ 
shall, in the case of the AC, be calculated based on the aggregate 
amount remaining in the trust account of the AC at the time of the 
agreement to enter into the Business Combination as reduced by the 
Contribution, and, in the case of the SpinCo AC, be calculated based on 
the aggregate amount in its trust account at the time of its agreement 
to enter into a Business Combination, and
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    \16\ See supra note 9 and accompanying text, for a description 
of the requirements of Section 102.06 of the Manual.
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    (B) the right to convert and opportunity to redeem shares of common 
stock on a pro rata basis required for ACs listed under Section 102.06 
of the Manual shall, in the case of the AC, be deemed to apply to the 
aggregate amount remaining in the trust account of the AC after the 
Contribution to the SpinCo AC, and, in the case of the

[[Page 70152]]

SpinCo AC, be deemed to apply to the aggregate amount in its trust 
account;
    (v) in the case of the SpinCo AC, and any additional entities spun 
off from the SpinCo AC, each of which will also be considered a SpinCo 
AC, the three-year period (or such shorter period specified by the AC's 
constitutive documents or by contract) within which a listed AC must 
consummate its Business Combination under Section 102.06 of the Manual 
will be calculated based on the date of effectiveness of the AC's IPO 
registration statement; and
    (vi) in the aggregate, through one or more opportunities by the AC 
and one or more SpinCo ACs, public shareholders will have the ability 
to convert or redeem shares, or receive amounts upon liquidation, for 
the full amount of the trust account established by the AC as described 
in the first paragraph of Section 102.06 of the Manual (excluding any 
deferred underwriters fees and taxes payable on the income earned on 
the trust account).
    The Exchange states that, under the proposal, it expects that the 
new structure will be implemented in the following manner. If a listed 
AC (the ``Original AC'') determines that it will not need all the cash 
in its trust account for its initial Business Combination, the Original 
AC will designate the excess cash for a new trust account of a SpinCo 
AC that will be spun off to Original AC's shareholders.\17\ The 
Exchange states that the amount designated for the SpinCo trust account 
must continue to be held for the benefit of the shareholders of the 
Original AC until the completion of the spin-off transaction and, 
following the spin-off of the SpinCo AC to the Original AC's 
shareholders, the SpinCo trust account would be subject to the same 
requirements as the trust account of the Original AC.\18\
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    \17\ See Notice, supra note 3, at 50409.
    \18\ See id.
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    According to the Exchange, the SpinCo AC would file a registration 
statement under the Securities Act of 1933 for purposes of effecting 
the spin-off of the SpinCo AC and, prior to the effectiveness of the 
registration statement, the Original AC would provide its public 
shareholders through one or more corporate transactions with the 
opportunity to redeem a pro rata amount of their holdings equal to the 
amount of the SpinCo trust account divided by the per share amount in 
the Original AC's trust account.\19\ The Exchange further states that, 
after completing the tender offer for the redemption and the 
effectiveness of the SpinCo AC's registration statement, the Original 
AC would contribute the SpinCo trust account to a trust account held by 
the SpinCo AC in exchange for shares or units of the SpinCo AC, which 
the Original AC would then distribute to its public shareholders on a 
pro rata basis through one or more corporate transactions pursuant to 
the SpinCo AC's effective registration statement.\20\
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    \19\ See id. According to the Exchange, the redemption could 
occur, for example, through a partial cash tender offer for shares 
of the Original AC pursuant to Rule 13e-4 and Regulation 14E under 
the Act, and the redemption may be of a separate class of shares 
distributed to unitholders of the Original AC for the purpose of 
facilitating the redemption. See id. at 50409 n.5.
    \20\ See id. at 50409.
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    According to the Exchange, the Original AC would then continue to 
operate as an AC until it completes its Business Combination and would 
offer redemption rights to its public shareholders in connection with 
that Business Combination in the same manner as a traditional AC, while 
the SpinCo AC would operate in the same manner as a traditional AC, 
except that it could effect a subsequent spin-off prior to its Business 
Combination like the Original AC.\21\ The Exchange states that if 
SpinCo AC does not elect to effect a spin-off, it would either (i) 
proceed to complete an initial Business Combination and offer 
redemption rights in connection therewith like a traditional AC, or 
(ii) liquidate.\22\
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    \21\ See id.
    \22\ See id.
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    Finally, the Exchange proposes to amend the subsection of Section 
802.01B of the Manual setting forth the continued listing criteria 
applicable to ACs to specify that those criteria would also be 
applicable in their entirety to SpinCo ACs. In addition, the Exchange 
proposes to add a new subsection to Section 102.06 of the Manual 
stating that the applicable continued listing criteria for both ACs and 
SpinCo ACs would be set forth in Section 802.01B of the Manual.

III. Proceedings To Determine Whether To Approve or Disapprove SR-NYSE-
2021-42 and Grounds for Disapproval Under Consideration

    The Commission is instituting proceedings pursuant to Section 
19(b)(2)(B) of the Act \23\ to determine whether the proposed rule 
change should be approved or disapproved. Institution of such 
proceedings is appropriate at this time in view of the legal and policy 
issues raised by the proposed rule change. Institution of proceedings 
does not indicate that the Commission has reached any conclusions with 
respect to any of the issues involved.
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    \23\ 15 U.S.C. 78s(b)(2)(B).
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    Pursuant to Section 19(b)(2)(B) of the Act,\24\ the Commission is 
providing notice of the grounds for disapproval under consideration. 
The Commission is instituting proceedings to allow for additional 
analysis of the proposed rule change's consistency with the Act and, in 
particular, with Section 6(b)(5) of the Act, which requires, among 
other things, that the rules of a national securities 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 
to protect investors and the public interest, and not be designed to 
permit unfair discrimination between customers, issuers, brokers, or 
dealers.\25\
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    \24\ Id.
    \25\ 15 U.S.C. 78f(b)(5).
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    As described above, the proposal would allow an AC listed under 
Section 102.06 of the Manual to contribute a portion of the amount held 
in its trust account to the trust account of a SpinCo AC. The Exchange 
states that the proposal would permit a more efficient structure 
because an AC often raises an amount of capital through its IPO that is 
not optimal for the needs of a specific acquisition target.\26\ 
According to the Exchange, this has resulted in AC sponsors creating 
multiple ACs of different sizes at the same time, with the intention to 
use the AC that is closest in size to the amount a particular 
acquisition target needs.\27\ The Exchange believes this practice 
creates the potential for conflicts of interest, fails to optimize the 
amount of capital that would benefit the AC's public shareholders and a 
Business Combination target, creates inefficiencies, and can lead to 
confusion.\28\ Accordingly, the Exchange believes the proposal would 
provide shareholders the opportunity to invest with a sponsor without 
spreading that investment across the sponsor's multiple ACs.\29\
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    \26\ See Notice, supra note 3, at 50409.
    \27\ See id.
    \28\ See id.
    \29\ See id. at 50410.
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    The Commission has concerns, however, about whether the proposal is 
sufficiently designed to protect investors and the public interest, as 
required by Section 6(b)(5) of the Act.

[[Page 70153]]

First, the Commission is concerned that the proposed amendments to 
Section 102.06 of the Manual would circumvent the current requirements 
of Section 102.06 that the Commission previously found were designed to 
protect investors.\30\ Specifically, Section 102.06 of the Manual 
requires an AC to complete one or more Business Combinations having a 
fair market value equal to at least 80% of the net assets held in 
trust.\31\ This 80% requirement sets a minimum size of a Business 
Combination that investors will be aware of from their initial 
investment. In addition, the 80% requirement ensures that the founders 
of the AC will not seek a very small AC target solely to ensure they 
successfully complete a Business Combination in order to break escrow 
and thereby earn their payment (promote) for finding a target. The 
proposal could potentially allow an AC to engage in multiple Business 
Combinations that are very small in size as compared to the original 
amount in the trust account. The proposal also does not include any 
limitations with respect to the amount an AC may contribute to a SpinCo 
AC and thereby reduce its escrow account. Moreover, it appears the 
proposed structure could potentially incentivize AC founders to 
complete smaller Business Combinations in cases where they cannot 
identify a target company of sufficient size to meet the 80% 
requirement with respect to the Original AC, thereby leaving investors 
with a choice of whether to accept an investment in a smaller-sized 
company than originally contemplated or a partial redemption of their 
original investment from the reduced deposit account. The Commission is 
concerned that allowing ACs to engage in such transactions effectively 
eliminates the original 80% requirement, may subvert investor 
expectations regarding an AC's future Business Combination prospects, 
and may benefit the founders of ACs at the expense of retail 
investors.\32\ In this regard, the Commission is concerned that the 
Exchange has not provided sufficient justification regarding how its 
proposal is consistent with the protection of investors, including the 
investor protection measures that were originally contemplated by 
Section 102.06 of the Manual and which the Commission found to be 
consistent with the Act.\33\
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    \30\ See 2008 Order, supra note 8.
    \31\ The trust account must contain at least 90% of the proceeds 
from the AC's IPO and any concurrent sale by the AC of equity 
securities. See Section 102.06 of the Manual.
    \32\ Moreover, the proposal does not appear to be limited to 
future ACs and could potentially allow existing ACs to engage in 
spin-offs. The Commission believes that permitting existing ACs to 
engage in such transactions could raise investor protection issues 
given that investors who initially invested in the ACs would not 
have been aware that the AC would not have to comply with the 80% 
requirement and could spin off into multiple SpinCo ACs.
    \33\ See 2008 Order, supra note 8. In addition, the proposal 
appears to require redeeming shareholders to effectively pay 
deferred underwriting fees by deducting those fees from the 
aggregate redemption amount available to shareholders. See proposed 
Section 102.06(vi) of the Manual. This is not required for the 
Original AC as set forth under current Section 102.06(b) and (c) of 
the Manual and would result in the redeeming shareholders 
potentially receiving less than 90% of the gross proceeds from the 
trust account. Under the current AC listing rules, only taxes 
payable and amounts disbursed to management for working capital 
purposes can be excluded from the aggregate amount in the trust 
account.
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    Furthermore, the Commission believes the proposal could introduce 
additional complexity to AC securities, particularly for retail 
investors. While the market in AC securities is already complex, the 
Exchange's proposal would allow for the listing of ACs that may spin-
off into smaller and smaller ACs, each presenting additional risks and 
considerations to investors that may not be fully realized at the time 
of the Original AC's IPO or at the time of each spin-off transaction 
when investors have the opportunity to receive shares in the SpinCo AC 
or redeem their pro-rata portion of the SpinCo AC Contribution.\34\ 
Further, although the Exchange states the proposal is expected to allow 
an AC that determines that it will have excess cash following its 
initial Business Combination to spin-off those funds to a new AC,\35\ 
the proposal is not limited to this particular situation and would 
allow an AC to break escrow to create new SpinCo ACs at any time after 
its IPO, regardless of whether any potential Business Combination has 
been identified.\36\ Moreover, under current AC rules, investors have 
to make one determination on whether to redeem their shares or retain 
ownership in the combined operating business after a Business 
Combination that has a fair market value equal to at least 80% of the 
net assets of the trust account. In contrast, under the proposal, 
investors would have to make multiple decisions on whether to hold or 
redeem their securities in potentially multiple SpinCo ACs, and those 
investors that choose to redeem may not be made whole as to their 
original investment until a subsequent Business Combination of the 
Original AC and/or the SpinCo ACs occurs. Additionally, the proposal 
raises concerns about whether investors are adequately protected when 
only the sponsors, not shareholders, are participating in the decision 
to reduce the deposit account and contribute those funds to the SpinCo 
AC.\37\ For these reasons, the Commission is concerned that investors 
may not have adequate information at the time they initially invest in 
the Original AC and at the time they are required to make decisions 
regarding whether to invest in the SpinCo ACs or to redeem their 
investment, which can occur multiple times over the term of the 
Original AC, raising investor protection concerns under Section 6(b)(5) 
of the Act.
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    \34\ For example, under the proposal it would be difficult for 
an investor to know at the time of its investment in the Original AC 
(or at the time of each contribution) whether there will be future 
contributions to SpinCos, and, if so, how much the original escrow 
will be reduced and how much will be left for the Original AC's 
Business Combination. The Commission believes such information would 
be important to investors in making informed investment decisions in 
the Original AC.
    \35\ See Notice, supra note 3, at 50409.
    \36\ The proposal also does not include any timing limitations 
with respect to when an AC may engage in a contribution and spin-
off. As such, it appears that a contribution and spin-off could 
occur very close to the end of the three-year period within which 
the Original AC and any SpinCo AC has to complete its Business 
Combination. This raises investor protection issues since 
shareholders may not have enough time to review disclosures before a 
vote or redemption decision is required.
    \37\ In these situations, the SpinCo AC may be structured 
completely differently than was disclosed at the time of the 
investment in the Original AC. For example, nothing in the proposal 
prevents the SpinCo AC from having a different target industry or 
business than the Original AC, different compensation arrangements 
than the Original AC, or different terms than disclosed in the 
Original AC registration statement.
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    The Commission is also concerned that certain aspects of the 
proposed rule change are vague and unclear and may raise additional 
investor protection concerns. For example, proposed Section 102.06(i) 
would provide shareholders the right to redeem, ``through one or more 
corporate transactions,'' their pro rata portion of the AC's 
contribution to a SpinCo AC's trust account. In addition, proposed 
Section 102.06(vi) provides that public shareholders will have the 
ability to convert or redeem shares, or receive amounts upon 
liquidation, for the full amount of the trust account ``through one or 
more opportunities.'' The proposal, however, does not set forth any 
specific requirements applicable to the redemption or conversion 
opportunities with respect to the contribution to a SpinCo AC or 
specify what would qualify as an acceptable corporate transaction for 
purposes of a redemption.\38\ Moreover, the proposed

[[Page 70154]]

rule states that an AC will be permitted to contribute a portion of the 
amount held in the trust account to a trust account of ``another 
entity'' in a spin-off ``or similar corporate transaction.'' However, 
the proposal does not specify whether there are any limitations on the 
types of entities that may receive the contribution, including whether 
such entities could include an already existing AC, or what would 
constitute a ``similar transaction.'' The Commission is concerned that 
the lack of clarity and vagueness in the proposed rule text may cause 
confusion amongst market participants regarding the scope of the 
proposal and what is required under the proposed rules.
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    \38\ The Exchange states that a redemption could occur, for 
example, through a partial cash tender offer for shares of the 
Original AC pursuant to Rule 13e-4 and Regulation 14E under the Act, 
and the redemption may be of a separate class of shares distributed 
to unitholders of the Original AC for the purpose of facilitating 
the redemption. See Notice, supra note 3, at 50409 n.5. On the other 
hand, Section 102.06 of the Manual currently includes very specific 
requirements relating to redemption rights of public shareholders 
with respect to a Business Combination. See Section 102.06(b)-(c) of 
the Manual.
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    In addition, the Exchange has proposed that the conditions 
described in proposed Section 102.06 with respect to SpinCo ACs shall 
similarly apply to successive spin-offs or similar corporate 
transactions. The Exchange provides no specificity or detail regarding 
what factors the Exchange would consider when determining whether a 
transaction is a ``similar corporate transaction'' to a spinoff covered 
by the proposed rule. As drafted, the rule text would appear to give 
the Exchange broad discretion in determining what ``similar'' corporate 
transactions are covered by the proposed rule and such broad discretion 
could be used in a different manner with respect to different AC 
issuers. It is also difficult for the Commission to assess whether the 
proposal is consistent with Section 6(b)(5) of the Act if the Exchange 
could simply determine to apply the rule to some successive corporate 
transactions and not others on a case by case basis by invoking its 
discretion through the proposed language. The Commission believes this 
lack of transparency and objectivity in the proposed rule raises 
investor protection and unfair discrimination concerns under the Act 
because market participants may be confused about the scope of the 
proposal and the Exchange may elect to apply its rules in an 
inconsistent and discriminatory manner.
    Accordingly, the Commission believes there are questions as to 
whether the proposal is consistent with Section 6(b)(5) of the Act and 
its requirements, among other things, that the rules of a national 
securities exchange be designed to protect investors and the public 
interest, and not be designed to permit unfair discrimination.
    Under the Commission's Rules of Practice, the ``burden to 
demonstrate that a proposed rule change is consistent with the Exchange 
Act and the rules and regulations issued thereunder . . . is on the 
self-regulatory organization that proposed the rule change.'' \39\ The 
description of a proposed rule change, its purpose and operation, its 
effect, and a legal analysis of its consistency with applicable 
requirements must all be sufficiently detailed and specific to support 
an affirmative Commission finding,\40\ and any failure of a self-
regulatory organization to provide this information may result in the 
Commission not having a sufficient basis to make an affirmative finding 
that a proposed rule change is consistent with the Exchange Act and the 
applicable rules and regulations.\41\
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    \39\ 17 CFR 201.700(b)(3).
    \40\ See id.
    \41\ See id.
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    For these reasons, the Commission believes it is appropriate to 
institute proceedings pursuant to Section 19(b)(2)(B) of the Act \42\ 
to determine whether the proposal should be approved or disapproved.
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    \42\ 15 U.S.C. 78s(b)(2)(B).
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IV. Procedure: Request for Written Comments

    The Commission requests that interested persons provide written 
submissions of their views, data, and arguments with respect to the 
issues identified above, as well as any other concerns they may have 
with the proposal. In particular, the Commission invites the written 
views of interested persons concerning whether the proposal is 
consistent with Section 6(b)(5) \43\ of the Act or any other provision 
of the Act, or the rules and regulations thereunder. Although there do 
not appear to be any issues relevant to approval or disapproval that 
would be facilitated by an oral presentation of views, data, and 
arguments, the Commission will consider, pursuant to Rule 19b-4 under 
the Act,\44\ any request for an opportunity to make an oral 
presentation.\45\
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    \43\ 15 U.S.C. 78f(b)(5).
    \44\ 17 CFR 240.19b-4.
    \45\ Section 19(b)(2) of the Act, as amended by the Securities 
Act Amendments of 1975, Public Law 94-29 (June 4, 1975), grants the 
Commission flexibility to determine what type of proceeding--either 
oral or notice and opportunity for written comments--is appropriate 
for consideration of a particular proposal by a self-regulatory 
organization. See Securities Act Amendments of 1975, Senate Comm. on 
Banking, Housing & Urban Affairs, S. Rep. No. 75, 94th Cong., 1st 
Sess. 30 (1975).
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    Interested persons are invited to submit written data, views, and 
arguments regarding whether the proposed rule change should be approved 
or disapproved by December 30, 2021. Any person who wishes to file a 
rebuttal to any other person's submission must file that rebuttal by 
January 13, 2022. The Commission asks that commenters address the 
sufficiency of the Exchange's statements in support of the proposal, 
which are set forth in the Notice,\46\ in addition to any other 
comments they may wish to submit about the proposed rule change.
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    \46\ See supra note 3.
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    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-2021-42 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-2021-42. 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

[[Page 70155]]

comment submissions. You should submit only information that you wish 
to make available publicly. All submissions should refer to File Number 
SR-NYSE-2021-42 and should be submitted by December 30, 2021. Rebuttal 
comments should be submitted by January 13, 2022.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\47\
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    \47\ 17 CFR 200.30-3(a)(57).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-26625 Filed 12-8-21; 8:45 am]
BILLING CODE 8011-01-P


