Federal Register / Vol. 86, No. 149 / Friday, August 6, 2021 / Notices 43283 

28 17 CFR 200.30–3(a)(12). 

1 15 U.S.C. 78s(b)(1). 

2 17 CFR 240.19b–4. 

3See Securities Exchange Act Release Nos. 91728 

(April 29, 2021), 86 FR 24052 (SR–CBOE–2021– 

023); 91729 (April 29, 2021), 86 FR 24059 (SR– 

CboeBYX–2021–009); 91727 (April 29, 2021), 86 FR 

24083 (SR–CboeBZX–2021–028); 91725 (April 29, 

2021), 86 FR 24076 (SR–CboeEDGA–2021–009); 

91724 (April 29, 2021), 86 FR 24044 (SR– 

CboeEDGX–2021–021); 91732 (April 29, 2021), 86 

FR 24125 (SR–C2–2021–007) (collectively, 

‘‘Notices’’). 

4 In Amendment Nos. 1, the Exchanges clarified 

the circumstances under which proxy access 

nominees may be excluded from the proxy 

materials. Pursuant to proposed Section 2.16(j)(i) of 

the Bylaws, CGM would not be required to include 

a Stockholder Nominee in its proxy materials who 

would not be an independent director under 

Section 3.3 of the Bylaws, under the rules of the 

principal national securities exchange on which the 

outstanding capital stock of CGM is traded, any 

applicable rules of the Commission and any 

publicly disclosed standards used by the Board in 

determining and disclosing independence of CGM’s 

directors, in each case as determined by the Board 

in its sole discretion. In Amendment Nos. 1, the 

Exchanges represented that any independence 

standards adopted by CGM’s Board will apply 

uniformly to all director nominees, including 

Stockholder Nominees, and that any future 

independence standards adopted by the Board will 

comply with all applicable laws, rules, and 

regulations. Amendment Nos. 1 are available on the 

Commission’s website at http://www.sec.gov/rules/ 

sro.shtml. 

5See Notices, supra note 3, at 24052, 24059, 

24083, 24076, 24045, and 24125, respectively. See 

also 17 CFR 240.14a–8 (establishing procedures 

pursuant to which stockholders of a public 

company may have their proposals placed 

alongside management’s proposals in the 

company’s proxy materials for presentation to a 

vote at a meeting of stockholders). 

6See Notices, supra note 3, at 24052, 24059–60, 

24083–84, 24076, 24045, and 24125, respectively. 

The Exchanges also propose to make conforming 

changes to current Sections 2.10 and 2.11 of the 

Bylaws. See id. at 24052, 24059, 24083, 24076, 

24045, and 24125, respectively. See also infra notes 

45–46. 

7See proposed Bylaws Section 2.16. 

8See proposed Bylaws Section 2.16(c). 

9See Notices, supra note 3, at 24052, 24059–60, 

24083–84, 24076, 24045, and 24125, respectively 

(citing to Securities Exchange Release Nos. 79357 

(November 18, 2016), 81 FR 85283 (November 25, 

2016) (SR–NASDAQ–2016–127; SR–BX–2016–051; 

SR–ISE–2016–22; SR–ISEGemini–2016–10; SR– 

ISEMercury–2016–16; SR–PHLX–2016–93; SR– 

BSECC–2016–001; SR–SCCP–2016–01); and 77782 

(May 6, 2016), 81 FR 29600 (May 12, 2016) (SR– 

NYSE–2016–14; SR–NYSEArca–2016–25; SR– 

NYSEMKT–2016–20)). 

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–PEARL–2021–35, and 

should be submitted on or before 

August 27, 2021. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.28

J. Matthew DeLesDernier, 

Assistant Secretary. 

[FR Doc. 2021–16789 Filed 8–5–21; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–92546; File Nos. SR– 

CBOE–2021–023; SR–CboeBYX–2021–009; 

SR–CboeBZX–2021–028; SR–CboeEDGA– 

2021–009; SR–CboeEDGX–2021–021; SR– 

C2–2021–007] 

Self-Regulatory Organizations; Cboe 

Exchange, Inc.; Cboe BYX Exchange, 

Inc.; Cboe BZX Exchange, Inc.; Cboe 

EDGA Exchange, Inc.; Cboe EDGX 

Exchange, Inc.; Cboe C2 Exchange, 

Inc.; Notice of Filing of Amendment 

No. 1 and Order Granting Accelerated 

Approval of a Proposed Rule Change, 

as Modified by Amendment Nos. 1, To 

Amend the Sixth Amended and 

Restated Bylaws of Cboe Global 

Markets, Inc. To Implement Proxy 

Access 

August 2, 2021. 

I. Introduction 

On April 16, 2021, each of Cboe 

Exchange, Inc. (‘‘Cboe’’), Cboe BYX 

Exchange, Inc. (‘‘BYX’’), Cboe BZX 

Exchange, Inc. (‘‘BZX’’), Cboe EDGA 

Exchange, Inc. (‘‘EDGA’’), and Cboe 

EDGX Exchange, Inc. (‘‘EDGX’’), and on 

April 26, 2021, Cboe C2 Exchange, Inc. 

(‘‘C2’’ and together with Cboe, BYX, 

BZX, EDGA, and EDGX, the 

‘‘Exchanges’’) filed with the Securities 

and Exchange Commission 

(‘‘Commission’’) pursuant to Section 

19(b)(1) of the Securities Exchange Act 

of 1934 (‘‘Act’’) 1 and Rule 19b–4 

thereunder,2 a proposed rule change to 

amend the Sixth Amended and Restated 

Bylaws (‘‘Bylaws’’) of their parent 

company, Cboe Global Markets, Inc. 

(‘‘CGM’’), to implement proxy access. 

The proposed rule changes were 

published for comment in the Federal 

Register on May 5, 2021.3 No comment 

letters were received in response to the 

proposals. On July 28, 2021, each of 

BYX, BZX, EDGA, EDGX and C2, and on 

July 29, 2021, Cboe filed Amendment 

No. 1 to the proposed rule changes 

(collectively, ‘‘Amendment Nos. 1’’).4

This order provides notice of filing of 

Amendment Nos. 1 and approves the 

proposed rule changes, as modified by 

Amendment Nos. 1, on an accelerated 

basis. 

II. Description of the Proposed Rule 

Changes, as Modified by Amendment 

Nos. 1 

The Exchanges state that CGM 

received a stockholder proposal 

submitted pursuant to Rule 14a–8 under 

the Act which requested that the Board 

of Directors of CGM (‘‘Board’’) take steps 

to implement a ‘‘proxy access’’ bylaw 

provision to allow a stockholder, or 

group of stockholders, who comply with 

certain requirements, to nominate 

candidates for service on the Board and 

have those candidates included in 

CGM’s proxy materials.5 The Exchanges 

state that CGM has determined to take 

the stockholder’s requested steps to 

implement proxy access and, 

accordingly, the Exchanges have 

submitted this proposal to adopt new 

Section 2.16 of the Bylaws.6 Subject to 

procedures and conditions set forth 

therein, and as further described below, 

proposed Section 2.16 of the Bylaws 

would generally permit a stockholder, 

or group of up to 20 stockholders, to 

nominate director nominees for the 

Board and have such director nominees 

included in CGM’s annual meeting 

proxy materials, so long as the 

stockholder(s) have owned at least three 

percent of CGM’s outstanding shares of 

capital stock continuously for at least 

three years.7 The proposal would limit 

the number of proposed director 

nominees to the greater of (i) two or (ii) 

20% of the number of CGM directors in 

office (rounded down to the nearest 

whole number, but no less than two).8

The Exchanges note that the parent 

companies of other national securities 

exchanges have adopted substantively 

similar proxy access provisions, and the 

Exchanges state that they do not believe 

such provisions are materially different 

from the proxy access provision 

proposed by the Exchanges.9

Proposed Section 2.16 of the Bylaws 

Specifically, proposed Section 2.16(a) 

of the Bylaws would require that, 

subject to the provisions of proposed 

Section 2.16, whenever the Board 

solicits proxies with respect to the 

election of directors at an annual 

meeting of stockholders, CGM must 

include in its proxy statement for such 

annual meeting, in addition to any 

persons nominated for election by or at 


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10See proposed Bylaws Sections 2.16(a) and (h). 

See also infra note 28 and accompanying text. 11Proposed Section 2.16(a) states that, for the 

avoidance of doubt, nothing in the proposal will 

limit CGM’s ability to solicit against any 

Stockholder Nominee or include in its proxy 

materials CGM’s own statements or other 

information relating to any Eligible Stockholder or 

Stockholder Nominee, including any information 

provided to CGM pursuant to proposed Section 

2.16. 

12See proposed Bylaws Section 2.16(b). Proposed 

Section 2.16(b) requires that a Notice of Proxy 

Access Nomination must be delivered not earlier 

than the open of business on the 150th day and not 

later than the close of business on the 120th day 

prior to the first anniversary of the date that CGM 

first distributed its proxy statement to stockholders 

for the preceding year’s annual meeting of 

stockholders provided, however, that in the event 

the annual meeting is more than 30 days before or 

after the anniversary date of the prior year’s annual 

meeting, or if no annual meeting was held in the 

preceding year, to be timely, the Notice of Proxy 

Access Nomination must be received by CGM no 

earlier than 150 days before such annual meeting 

and no later than the later of 120 days before such 

annual meeting or the 10th day following the day 

on which public announcement (as defined in 

Section 2.11 of the Bylaws) of the date of such 

meeting is first made by CGM. Proposed Section 

2.16(b) further provides that in no event shall any 

adjournment or postponement of an annual meeting 

or the announcement thereof commence a new time 

period (or extend any time period) for the giving of 

a Notice of Proxy Access Nomination. 

13Proposed Section 2.16(d) states that any two or 

more funds that are part of the same ‘‘Qualifying 

Fund Group’’ will be counted as one stockholder, 

and defines a ‘‘Qualifying Fund Group’’ as two or 

more funds that are (i) under common management 

and investment control, (ii) under common 

management and funded primarily by the same 

employer, or (iii) a ‘‘group of investment 

companies’’ as such term is defined in Section 

12(d)(1)(G)(ii) of the Investment Corporation Act of 

1940, as amended. 

14See proposed Bylaws Section 2.16(d). Proposed 

Section 2.16(d) further provides that whenever the 

Stockholder consists of a group, (i) each provision 

of proposed Section 2.16 that requires the Eligible 

Stockholder to provide any written statements, 

representations, undertakings, agreements or other 

instruments or to meet any other conditions will be 

deemed to require each stockholder (including each 

individual fund) that is a member of such group to 

provide such statements, representations, 

undertakings, agreements or other instruments and 

to meet such other conditions (except that the 

members of such group may aggregate the shares 

that each member has Owned continuously for the 

Minimum Holding Period in order to meet the three 

percent Ownership requirement of the ‘‘Required 

Shares’’ definition) and (ii) a breach of any 

obligation, agreement or representation under 

proposed Section 2.16 by any member of such 

group shall be deemed a breach by the Eligible 

Stockholder. Proposed Section 2.16(d) also 

prohibits any stockholder from being a member of 

more than one group of stockholders constituting an 

Eligible Stockholder with respect to any annual 

meeting. 

15Under proposed Section 2.16(e) of the Bylaws, 

a stockholder will be deemed to ‘‘Own’’ only those 

outstanding shares of CGM’s capital stock as to 

which the stockholder possesses both: (i) The full 

voting and investment rights pertaining to the 

shares; and (ii) the full economic interest in 

(including the opportunity for profit from and risk 

of loss on) such shares; provided that the number 

of shares calculated in accordance with clauses (i) 

and (ii) shall not include any shares that are (1) sold 

by such stockholder or any of its affiliates in any 

transaction that has not been settled or closed; (2) 

borrowed by such stockholder or any of its affiliates 

for any purposes or purchased by such stockholder 

or any of its affiliates pursuant to an agreement to 

resell; or (3) subject to any option, warrant, forward 

contract, swap, contract of sale, other derivative or 

similar instrument or agreement entered into by 

such stockholder or any of its affiliates, whether 

any such instrument or agreement is to be settled 

with shares or with cash based on the notional 

amount or value of outstanding shares of CGM’s 

capital stock, in any such case which instrument or 

agreement has, or is intended to have, the purpose 

or effect of: (A) Reducing in any manner, to any 

extent or at any time in the future, such 

stockholder’s or its affiliates’ full right to vote or 

direct the voting of any such shares; and/or (B) 

hedging, offsetting or altering to any degree any 

gain or loss realized or realizable from maintaining 

the full economic ownership of such shares by such 

stockholder or affiliate. Proposed Section 2.16(e) 

further provides that a stockholder shall ‘‘Own’’ 

shares held in the name of a nominee or other 

intermediary so long as the stockholder retains the 

right to instruct how the shares are voted with 

respect to the election of directors and possesses the 

full economic interest in the shares. Under 

proposed Section 2.16(e), a stockholder’s 

Ownership of shares shall be deemed to continue 

during any period in which (i) the stockholder has 

loaned such shares, provided that the stockholder 

has the power to recall such loaned shares on five 

business days’ notice and includes in the Notice of 

Proxy Access Nomination an agreement that it will 

(1) promptly recall such loaned shares upon being 

notified that any of its Stockholder Nominees will 

be included in CGM’s proxy materials and (2) will 

continue to hold such shares through the date of the 

annual meeting or (ii) the stockholder has delegated 

any voting power by means of a proxy, power of 

attorney or other instrument or arrangement which 

is revocable at any time by the stockholder. 

16Proposed Section 2.16(c) provides that in the 

event one or more vacancies on the Board occurs 

with respect to any directors for any reason after the 

Final Proxy Access Nomination Date but before the 

date of the annual meeting and the Board resolves 

to reduce the size of the Board in connection 

therewith, the Permitted Number will be calculated 

based on the number of directors in office as so 

reduced. In addition, the Permitted Number will be 

reduced by (i) the number of individuals who will 

be included in CGM’s proxy materials as director 

nominees recommended by the Board pursuant to 

an agreement, arrangement or other understanding 

with a stockholder or group of stockholders (other 

than any such agreement, arrangement or 

understanding entered into in connection with an 

acquisition of stock from CGM by such stockholder 

or group of stockholders) and/or (ii) the number of 

directors in office as of the Final Proxy Access 

Nomination Date who were included in CGM’s 

proxy materials as Stockholder Nominees for any of 

the two preceding annual meetings of stockholders 

and whose reelection at the upcoming annual 

meeting is being recommended by the Board. 

the direction of the Board, the name, 

together with the ‘‘Required 

Information,’’ of any person nominated 

for election to the Board as a director by 

an ‘‘Eligible Stockholder’’ (defined 

below) (‘‘Stockholder Nominee’’). The 

‘‘Required Information’’ to be included 

in the proxy statement is (i) the 

information provided to CGM’s 

Secretary concerning the Stockholder 

Nominee and the Eligible Stockholder 

that is required to be disclosed in CGM’s 

proxy statement pursuant to Section 14 

of the Act and the rules and regulations 

promulgated thereunder and, (ii) if the 

Eligible Stockholder so elects, a 

‘‘Supporting Statement,’’ which is a 

written statement, not to exceed 500 

words, in support of its Stockholder 

Nominee(s)’ candidacy.10 The proposal 

would also require that the name of any 

Stockholder Nominee included in 

CGM’s proxy statement for an annual 

meeting of stockholders be set forth on 

the form of proxy and any ballot 

distributed by CGM in connection with 

such annual meeting.11 In addition to 

any other applicable requirements, for a 

nomination to be made by an Eligible 

Stockholder under proposed Section 

2.16 of the Bylaws, the Eligible 

Stockholder must give timely notice to 

CGM thereof (a ‘‘Notice of Proxy Access 

Nomination’’) and must expressly 

request in such notice to have its 

nominee included in CGM’s proxy 

materials.12

An ‘‘Eligible Stockholder’’ is defined 

as a stockholder or group of no more 

than 20 stockholders 13 that (i) has 

Owned continuously for at least three 

years (‘‘Minimum Holding Period’’) at 

least three percent of the outstanding 

shares of capital stock of CGM as of the 

date the Notice of Proxy Access 

Nomination is received by CGM 

(‘‘Required Shares’’), (ii) continues to 

Own the Required Shares through the 

date of the annual meeting, and (iii) 

meets all other requirements of the 

proposed Section 2.16.14 Proposed 

Section 2.16(e) of the Bylaws sets forth 

when a stockholder would be deemed to 

‘‘Own’’ shares of CGM’s capital stock, 

and provides that whether outstanding 

shares of CGM’s capital stock are 

‘‘Owned’’ shall be determined by the 

Board.15

Proposed Section 2.16(c) of the 

Bylaws provides that the maximum 

number (‘‘Permitted Number’’) of 

Stockholder Nominees nominated by all 

Eligible Stockholders that will be 

included in CGM’s proxy materials with 

respect to an annual meeting of 

stockholders will not exceed the greater 

of (i) two or (ii) 20% of the number of 

directors in office as of the last day on 

which a Notice of Proxy Access 

Nomination may be delivered pursuant 

to and in accordance with proposed 

Section 2.16 (the ‘‘Final Proxy Access 

Nomination Date’’) or, if such amount is 

not a whole number, the closest whole 

number below 20%. Proposed Section 

2.16(c) sets forth certain circumstances 

under which the Permitted Number 

would be reduced.16 Proposed Section 

2.16(c) also sets forth procedures for 

determining when the Permitted 

Number is reached and for selecting 

candidates when the Permitted Number 


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17Proposed Section 2.16(c) provides that for 

purposes of determining when the Permitted 

Number has been reached, any individual 

nominated by an Eligible Stockholder for inclusion 

in CGM’s proxy materials pursuant to Section 2.16 

whose nomination is subsequently withdrawn or 

whom the Board decides to nominate for election 

to the Board as a director will be counted as one 

of the Stockholder Nominees. Proposed Section 

2.16(c) also provides that any Eligible Stockholder 

submitting more than one Stockholder Nominee 

pursuant to proposed Section 2.16 shall rank such 

Stockholder Nominees and, in the event the number 

of Stockholder Nominees submitted by Eligible 

Stockholders exceeds the Permitted Number, the 

highest ranking Stockholder Nominee who meets 

the requirements of proposed Section 2.16 from 

each Eligible Stockholder will be selected for 

inclusion in CGM’s proxy materials until the 

Permitted Number is reached, going in order of the 

amount (largest to smallest) of shares of outstanding 

capital stock of CGM each Eligible Stockholder 

disclosed as Owned in its Notice of Proxy Access 

Nomination. If the Permitted Number is not reached 

after the highest ranking Stockholder Nominee from 

each Eligible Stockholder has been selected, then 

the next highest ranking Stockholder Nominee from 

each Eligible Stockholder will be selected for 

inclusion in CGM’s proxy materials, and this 

process will continue as many times as necessary, 

following the same order each time, until the 

Permitted Number is reached. 

18 In addition to the items further discussed 

below, proposed Section 2.16(f) also requires the 

Notice of Proxy Nomination to include (i) an 

undertaking that the Eligible Stockholder will 

assume liability and indemnify CGM in connection 

with the nomination submitted by the Eligible 

Stockholder; (ii) in the case of a nomination by an 

Eligible Stockholder consisting of a group of 

stockholders, the designation of one group member 

that is authorized to receive communications, 

notices, and inquiries from CGM and to act on 

behalf of members of the group; and (iii) in the case 

of a nomination by an Eligible Stockholder 

consisting of a group of stockholders in which two 

or more funds are intended to be treated as one 

stockholder, documentation that demonstrates that 

the funds are part of the same Qualifying Fund 

Group. See proposed Bylaws Section 2.16(f)(vii)(1)– 

(2), (viii), and (ix). 

19See proposed Bylaws Section 2.16(f)(iii). See 

also 17 CFR 240.14n–101 and 17 CFR 240.14a–18, 

which generally require a Nominating Stockholder 

to provide notice to CGM of its intent to submit a 

proxy access nomination on a Schedule 14N and 

file that notice, including the required disclosure, 

with the Commission on the date first transmitted 

to CGM. 

20See proposed Bylaws Section 2.16(f)(i)–(v). 

21See proposed Bylaws Section 2.16(f)(vi)(1)–(6). 22See proposed Bylaws Section 2.16(f)(vii). See 

also 17 CFR 240.14a–1 through 14b–2, which 

governs solicitations of proxies. 23A ‘‘Voting Commitment’’ is any agreement, 

arrangement or understanding with any person or 

entity as to how the Stockholder Nominee would 

vote or act on any issue or question as a director. 

See Notices, supra note 3, at 24055 n.12, 24063 

n.12, 24087 n.12, 24079 n.12, 24048 n.12, and 

24128 n.12, respectively. 

is exceeded.17 Proposed Section 2.16(c) 

also specifies that CGM will not be 

required to include any Stockholder 

Nominees in its proxy materials 

pursuant to Section 2.16 for any meeting 

of stockholders for which CGM receives 

a notice (whether or not subsequently 

withdrawn) that the Eligible 

Stockholder or any other stockholder 

intends to nominate one or more 

persons for election to the Board 

pursuant to Section 2.11 of the Bylaws. 

Proposed Section 2.16(f) sets forth the 

information that an Eligible Stockholder 

must include in its Notice of Proxy 

Access Nomination, and includes, 

among other things: 18 (i) A statement by 

the Eligible Stockholder (1) setting forth 

and certifying as to the number of shares 

it Owns and has Owned continuously 

for the Minimum Holding Period and (2) 

agreeing to continue to Own the 

Required Shares through the date of the 

annual meeting; (ii) one or more written 

statements from the record holder of the 

Required Shares (and from each 

intermediary through which the 

Required Shares are or have been held 

during the Minimum Holding Period) 

verifying that, as of a date within seven 

calendar days prior to the date the 

Notice of Proxy Access Nomination is 

delivered to the CGM Secretary, the 

Eligible Stockholder Owns, and has 

Owned continuously for the Minimum 

Holding Period, the Required Shares, 

and the Eligible Stockholder’s 

agreement to provide, within five 

business days after the record date for 

the annual meeting, one or more written 

statements from the record holder and 

such intermediaries verifying the 

Eligible Stockholder’s continuous 

ownership of the Required Shares 

through the record date; (iii) a copy of 

the Schedule 14N that has been filed 

with the Commission as required by 

Rule 14a–18 under the Act; 19 (iv) the 

information, representations, 

agreements, and other documents that 

are required to be set forth in or 

included with a stockholder’s notice of 

nomination given pursuant to Section 

2.11 of the Bylaws; and (v) the written 

consent of each Stockholder Nominee to 

being named in the proxy statement as 

a nominee and to serving as a director 

if elected.20

The Notice of Proxy Access 

Nomination must also include a 

representation that the Eligible 

Stockholder (1) acquired the Required 

Shares in the ordinary course of 

business and not with the intent to 

change or influence control of CGM, and 

does not presently have such intent; (2) 

has not nominated and will not 

nominate for election to the Board as a 

director at the annual meeting any 

person, other than its Stockholder 

Nominee(s); (3) has not engaged and 

will not engage in, and has not and will 

not be a ‘‘participant’’ in another 

person’s, ‘‘solicitation’’ within the 

meaning of Rule 14a–1(l) under the Act 

in support of the election of any 

individual as a director at the annual 

meeting, other than its Stockholder 

Nominee(s) or a nominee of the Board; 

(4) has not distributed and will not 

distribute to any stockholder of CGM 

any form of proxy for the annual 

meeting other than the form distributed 

by CGM; (5) has complied and will 

comply with all laws, rules and 

regulations applicable to solicitations 

and the use, if any, of soliciting material 

in connection with the annual meeting; 

and (6) has provided and will provide 

facts, statements and other information 

in all communications with CGM and 

its stockholders that are or will be true 

and correct in all material respects and 

do not and will not omit to state a 

material fact necessary in order to make 

the statements made, in light of the 

circumstances under which they were 

made, not misleading.21

Proposed Section 2.16(f) further 

requires the Notice of Proxy Access 

Nomination to include an undertaking 

that the Eligible Stockholder file with 

the Commission any solicitation or 

other communication with the 

stockholders of CGM relating to the 

meeting at which its Stockholder 

Nominee(s) will be nominated, 

regardless of whether any such filing is 

required under Regulation 14A of the 

Act or whether any exemption from 

filing is available for such solicitation or 

other communication under Regulation 

14A of the Act.22

Finally, proposed Section 2.16(f) 

requires the Notice of Proxy Access 

Nomination include a written 

representation and agreement by the 

Stockholder Nominee that such person: 

(1) Will act as a representative of all of 

the stockholders of CGM while serving 

as a director; (2) will provide facts, 

statements, and other information in all 

communications with CGM and its 

stockholders that are or will be true and 

correct in all material respects (and 

shall not omit to state a material fact 

necessary in order to make the 

statements made, in light of the 

circumstances under which they were 

made, not misleading); (3) is not and 

will not become a party to (i) any 

compensatory, payment or other 

financial agreement, arrangement or 

understanding with any person or entity 

other than CGM in connection with 

service or action as a director of CGM 

that has not been disclosed to CGM, (ii) 

any Voting Commitment 23 that has not 

been disclosed to CGM, or (iii) any 

Voting Commitment that could 

reasonably be expected to limit or 

interfere with the Stockholder 

Nominee’s ability to comply, if elected 

as a director of CGM, with its fiduciary 

duties under applicable law; and (4) 

will abide by and comply with the 


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24See proposed Bylaws Section 2.16(f)(x). 

25See proposed Bylaws Section 2.16(g)(i). 

26See proposed Bylaws Section 2.16(g)(ii). 

27See proposed Bylaws Section 2.16(g)(iii). 

28See proposed Bylaws Section 2.16(h). See also 

supra note 10 and accompanying text. 

29See 17 CFR 240.14a–9 (generally prohibiting 

proxy solicitations that contain any statement 

which, at the time and in the light of the 

circumstances under which it is made, is false or 

misleading with respect to any material fact, or 

which omits to state any material fact necessary in 

order to make the statements therein not false or 

misleading). 

30See proposed Bylaws Section 2.16(i). 

31See id. 

32See id., which requires that such update be 

received by CGM (A) not later than five business 

days after the record date for determining the 

stockholders entitled to receive notice of such 

meeting (in the case of an update required to be 

made under clause (i)) and (B) not later than seven 

business days prior to the date for the meeting, if 

practicable, or, if not practicable, on the first 

practicable date prior to the meeting or any 

adjournment, recess or postponement thereof (in 

the case of an update required to be made pursuant 

to clause (ii)). 

33See id. 

34See proposed Bylaws Section 2.16(j). 

35 Independence standards adopted by the Board 

will apply uniformly to all director nominees, 

including Stockholder Nominees. Any future 

independence standards adopted by the Board will 

comply with all applicable laws, rules, and 

regulations. See Amendment Nos. 1, supra note 4. 

Bylaws, CGM’s Certificate of 

Incorporation and applicable policies of 

CGM including all applicable publicly 

disclosed corporate governance, conflict 

of interest, confidentiality and stock 

ownership, and trading policies and 

guidelines of CGM, as well as the 

applicable provisions of the rules and 

regulations of the Commission and any 

stock exchange applicable to CGM.24

Proposed Section 2.16(g) sets forth 

additional information the Stockholder 

Nominee must provide in addition to 

the information required or requested 

pursuant to proposed Section 2.16(f) or 

any other provision of the Bylaws and 

specifies that the Stockholder 

Nominee(s) must submit all completed 

and signed questionnaires required of 

directors and officers of CGM.25

Additionally, Section 2.16(g) provides 

that CGM may require any proposed 

Stockholder Nominee to furnish any 

information: (1) That may reasonably be 

requested by CGM to determine whether 

the Stockholder Nominee would be 

independent under Section 3.3 of the 

Bylaws and otherwise qualifies as 

independent under the rules of the 

principal national securities exchange 

on which the outstanding capital stock 

of CGM is traded; (2) that could be 

material to a reasonable stockholder’s 

understanding of the independence, or 

lack thereof, of such Stockholder 

Nominee; (3) that would be required to 

satisfy the requirements for qualification 

of directors under applicable foreign 

regulations; or (4) that may reasonably 

be requested by CGM to determine the 

eligibility of such Stockholder Nominee 

to be included in CGM’s proxy materials 

pursuant to proposed Section 2.16 or to 

serve as a director of CGM.26 Proposed 

Section 2.16(g) further provides that 

CGM may require the Eligible 

Stockholder to furnish any other 

information that may reasonably be 

requested by CGM to verify the Eligible 

Stockholder’s continuous Ownership of 

the Required Shares for the Minimum 

Holding Period and through the date of 

the annual meeting.27

As discussed above, an Eligible 

Stockholder may, at its option, provide 

to the Secretary, at the time the Notice 

of Proxy Access Nomination is 

provided, one Supporting Statement.28

Proposed Section 2.16(h) provides that 

CGM may omit from its proxy materials 

any information or Supporting 

Statement (or portion thereof) that it, in 

good faith, believes is untrue in any 

material respect (or omits to state a 

material fact necessary in order to make 

the statements made, in light of the 

circumstances under which they are 

made, not misleading) or would violate 

any applicable law, rule or regulation.29

Proposed Section 2.16(i) provides 

that, in the event any information or 

communications provided by an Eligible 

Stockholder or a Stockholder Nominee 

to CGM or its stockholders is not, when 

provided, or thereafter ceases to be, true 

and correct in all material respects or 

omits to state a material fact necessary 

to make the statements made, in light of 

the circumstances under which they 

were made, not misleading, such 

Eligible Stockholder or Stockholder 

Nominee must promptly notify the 

Secretary of any such defect and of the 

information that is required to correct 

any such defect.30 In addition, an 

Eligible Stockholder must provide 

immediate notice to CGM if the Eligible 

Stockholder ceases to Own any of the 

Required Shares prior to the date of the 

annual meeting.31 Furthermore, any 

person providing any information to 

CGM pursuant to proposed Section 

2.16(i) must further update and 

supplement such information, if 

necessary, so that all such information 

shall be true and correct as of the (i) 

record date for determining the 

stockholders entitled to receive notice of 

the meeting and (ii) date that is ten 

business days prior to the meeting (or 

any postponement, adjournment or 

recess thereof).32 However, no 

notification, update or supplement 

provided pursuant to proposed Section 

2.16(i) or otherwise shall be deemed to 

cure any defect in any previously 

provided information or 

communications or limit the remedies 

available to CGM relating to such defect 

(including the right to omit a 

Stockholder Nominee from its proxy 

materials).33

Proposed Section 2.16(j) sets forth 

circumstances in which CGM would not 

be required to include a Stockholder 

Nominee in its proxy materials for any 

meeting of stockholders. In such 

circumstances, any such nomination 

would be disregarded and no vote on 

such Stockholder Nominee would 

occur, notwithstanding that proxies in 

respect of such vote may have been 

received by CGM.34 In particular, CGM 

would not be required to include a 

Stockholder Nominee in its proxy 

materials (i) who would not be an 

independent director under Section 3.3 

of the Bylaws, under the rules of the 

principal national securities exchange 

on which the outstanding capital stock 

of CGM is traded, any applicable rules 

of the Commission and any publicly 

disclosed standards used by the Board 

in determining and disclosing 

independence of CGM’s directors, in 

each case as determined by the Board in 

its sole discretion; 35 (ii) who would not 

meet the audit committee independence 

requirements under the rules of the 

principal national securities exchange 

on which the outstanding capital stock 

of CGM is traded; (iii) who, if elected, 

intends to resign as a director of CGM 

prior to the end of the full term for 

which he or she is standing for election; 

(iv) who is or has been subject to any 

statutory disqualification under Section 

3(a)(39) of the Act; (v) who is or has 

been subject to disqualification under 

17 CFR 1.63; (vi) whose election as a 

member of the Board would otherwise 

cause CGM to be in violation of the 

Bylaws, CGM’s Certificate of 

Incorporation, the rules of the principal 

national securities exchange on which 

the outstanding capital stock of CGM is 

traded, or any applicable law, rule or 

regulation; (vii) who is or has been, 

within the past three years, an officer or 

director of a competitor, as defined for 

purposes of Section 8 of the Clayton 

Antitrust Act of 1914; (viii) who is a 

named subject of a pending criminal 

proceeding (excluding traffic violations 

and other minor offenses) or has been 

convicted in such a criminal proceeding 

within the past 10 years; (ix) who is 

subject to any order of the type specified 

in Rule 506(d) of Regulation D 

promulgated under the Securities Act of 

1933, as amended; (x) who has provided 


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36See id. 

37See proposed Bylaws Section 2.16(k). 

38See Notices, supra note 3, at 24057, 24064, 

24088, 24081, 24050, and 24130, respectively; 

proposed Bylaws Section 2.16(l). 

39See proposed Bylaws Section 2.16(l). 

40To be considered a qualified representative of 

the Eligible Stockholder providing notice, a person 

must be a duly authorized officer, manager or 

partner of such stockholder or must be authorized 

by a writing executed by such stockholder or an 

electronic transmission delivered by such 

stockholder to act for such stockholder as proxy at 

the meeting and such writing or electronic 

transmission, or a reliable reproduction of the 

writing or electronic transmission, must be 

provided to CGM at least 24 hours prior to the 

meeting. See proposed Bylaws Section 2.16(m). 

41See id. 

42See proposed Bylaws Section 2.16(n). 

43See proposed Bylaws Section 2.16(o). 

44See Notices, supra note 3, at 24057, 24065, 

24089, 24082, 24050, and 24130, respectively. 

45See id. at 24058, 24065, 24089, 24082, 24050, 

and 24131, respectively; proposed Bylaws Section 

2.10. 

46See Notices, supra note 3, at 24058, 24065, 

24089, 24082, 24050, and 24131, respectively; 

proposed Bylaws Section 2.11. 

47 15 U.S.C. 78f(b). 

48 In approving these proposed rule changes, as 

modified by Amendment Nos. 1, the Commission 

has considered the proposed rules’ impact on 

efficiency, competition, and capital formation. See 

15 U.S.C. 78c(f). 

49 15 U.S.C. 78f(b)(5). 

any information to CGM or its 

stockholders that was untrue in any 

material respect or that omitted to state 

a material fact necessary to make the 

statements made, in light of the 

circumstances in which they were 

made, not misleading; or (xi) if the 

Eligible Stockholder and/or applicable 

Stockholder Nominee breaches or fails 

to comply with its obligations pursuant 

to the Bylaws, including, but not limited 

to, proposed Section 2.16 and any 

agreement, representation or 

undertaking required by proposed 

Section 2.16.36

Proposed Section 2.16(k) provides 

that, notwithstanding anything to the 

contrary contained in the Bylaws, if (i) 

a Stockholder Nominee and/or the 

applicable Eligible Stockholder breaches 

any of its agreements or representations 

or fails to comply with any of its 

obligations under proposed Section 

2.16, or (ii) a Stockholder Nominee 

otherwise becomes ineligible for 

inclusion in CGM’s proxy materials 

pursuant to proposed Section 2.16, or 

dies, becomes disabled or otherwise 

becomes ineligible or unavailable for 

election at the annual meeting, in each 

case as determined by the Board or the 

chairman of the meeting, CGM may omit 

or, to the extent feasible, remove the 

information concerning such 

Stockholder Nominee and the related 

Supporting Statement from its proxy 

materials and/or otherwise 

communicate to its stockholders that 

such Stockholder Nominee will not be 

eligible for election at the annual 

meeting. In addition, in such 

circumstances CGM will not be required 

to include in its proxy materials any 

successor or replacement nominee 

proposed by the applicable Eligible 

Stockholder or any other Eligible 

Stockholder and the chairman of the 

meeting would declare such nomination 

to be invalid and such nomination 

would be disregarded, notwithstanding 

that proxies in respect of such vote may 

have been received by CGM.37

Proposed Section 2.16(l) provides that 

any Stockholder Nominee who is 

included in CGM’s proxy materials for 

a particular annual meeting of 

stockholders would be ineligible to be a 

Stockholder Nominee for the next two 

annual meetings if: (i) The Stockholder 

Nominee withdraws from or becomes 

ineligible or unavailable for election at 

the annual meeting; or (ii) the 

Stockholder Nominee does not receive 

at least 25% of the votes cast in favor 

of such Stockholder Nominee’s 

election.38 This provision would not, 

however, prevent any stockholder from 

nominating any person to the Board 

pursuant to Section 2.11 of the 

Bylaws.39

Notwithstanding the provisions of 

proposed Section 2.16, if the Eligible 

Stockholder providing notice (or a 

qualified representative of the Eligible 

Stockholder) 40 does not appear in 

person (including virtually, in the case 

of a meeting held solely by means of 

remote communication) at the 

stockholder meeting to present the 

nomination of such Stockholder 

Nominee, such proposed nomination 

shall not be presented by CGM and shall 

not be transacted, notwithstanding that 

proxies in respect of such vote may have 

been received by CGM.41

Proposed Section 2.16 of the Bylaws 

provides that the Board (or any other 

person or body authorized by the Board) 

shall have the exclusive power and 

authority to interpret the provisions of 

proposed Section 2.16 and make all 

determinations deemed necessary or 

advisable in connection with proposed 

Section 2.16 as to any person, facts or 

circumstances. All such actions, 

interpretations, and determinations that 

are done or made by the Board (or any 

other person or body authorized by the 

Board) shall be final, conclusive, and 

binding on CGM, the stockholders and 

all other parties.42

Finally, proposed Section 2.16(o) 

states that the proxy access provisions 

outlined in proposed Section 2.16 shall 

be the exclusive means for stockholders 

to include nominees for director in 

CGM’s proxy materials.43 The 

Exchanges state that stockholders may 

continue to propose nominees through 

other means, but that the Board will 

have final authority to determine 

whether to include those nominees in 

CGM’s proxy materials.44

Proposed Revisions to Other Sections of 

the Bylaws 

The Exchanges have proposed to 

make additional changes to Sections 

2.10 and 2.11 to account for the addition 

of the proposed proxy access provision. 

First, the Exchanges propose to add 

references to Section 2.11 and proposed 

Section 2.16 in Section 2.10 of the 

Bylaws to clarify the exact provisions of 

the Bylaws that set forth requirements 

relating to stockholder nominees.45

Second, the Exchanges propose to add 

references to proposed Section 2.16 and 

additional language in Section 2.11 of 

the Bylaws to clarify that only persons 

who are nominated in accordance with 

either Section 2.11 or proposed Section 

2.16 shall be eligible for election as 

directors and that Section 2.11 and 

proposed Section 2.16 of the Bylaws are 

the exclusive means for a stockholder to 

make a director nomination.46

III. Discussion and Commission 

Findings 

The Commission finds, after careful 

review, that the proposed rule changes, 

as modified by Amendment Nos. 1, are 

consistent with the requirements of 

Section 6 of the Act 47 and the rules and 

regulations thereunder applicable to a 

national securities exchange.48 In 

particular, the Commission finds that 

the proposed rule changes, as modified 

by Amendment Nos. 1, are consistent 

with the requirements of Section 6(b)(5) 

of the Act, which requires, among other 

things, that an exchange’s rules be 

designed to prevent fraudulent and 

manipulative acts and practices, to 

promote just and equitable principles of 

trade, 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; and 

are not designed to permit unfair 

discrimination between customers, 

issuers, brokers or dealers.49

A stockholder who wishes to 

nominate his or her own candidate for 

director may initiate a proxy contest in 

order to solicit proxies from fellow 

shareholders, but doing so requires the 

preparation and dissemination of 


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50See supra note 5 and accompanying text. The 

Exchanges state that after receiving this stockholder 

proposal related to proxy access, CGM determined 

to take the stockholder’s requested steps to 

implement proxy access. See supra note 6 and 

accompanying text. 

51As discussed above, however, the Permitted 

Number of Stockholder Nominees under proposed 

Section 2.16 may not exceed the greater of two or 

20% of the total number of directors in office, and 

under certain circumstances, could be less than two 

Stockholder Nominees. See proposed Bylaws 

Section 2.16(c). See also supra notes 16–17 and 

accompanying text. 

52See Notices, supra note 3, at 24058, 24065, 

24089, 24082, 24051, and 24131, respectively. 

53See proposed Bylaws Section 2.16(a). See also 

supra notes 10–11 and accompanying text. 

54See proposed Bylaws Section 2.16(f)(vi)(1). See 

also supra notes 13–15 and accompanying text. 

55See proposed Bylaws Section 2.16(d). See also 

supra note 21 and accompanying text. 

56See proposed Bylaws Section 2.16(c). See also 

supra notes 8, 16, and 17 and accompanying text. 

57See proposed Section 2.16(j)(x). See also supra 

notes 34–36 and accompanying text. 

58See proposed Bylaws Section 2.16(j)(vi). See 

also supra notes 34–36 and accompanying text. 

59The Commission notes that CGM’s capital stock 

is listed on BZX and BZX is also currently the 

principal market on which CGM’s stock is traded. 

The Exchange has represented to Commission staff 

that for purposes of proposed Bylaws Section 2.16, 

the terms ‘‘listed and ‘‘traded’’ have no meaningful 

difference in this context. The Commission notes 

that the national securities exchange that lists a 

security is the relevant exchange for compliance 

with listing standards including independence 

requirements. Although CGM’s listing market is 

currently also the principal market on which its 

stock is traded, for the avoidance of confusion, the 

Commission believes CGM should amend this 

provision of its Bylaws to provide that CGM must 

comply with the listing standards of its listing 

market, including the independence requirements 

of its listing market, rather than those of the 

principal market on which its stock is traded, 

which market may change over time. See, e.g., 

Bylaws Section 3.3 (‘‘At all times no less than twothirds of the members of the Board of Directors 

shall satisfy the independence requirements 

adopted by the Board of Directors for directors of 

[CGM], as may be modified and amended by the 

Board of Directors from time to time, and which 

shall satisfy the independence requirements 

contained in the listing standards of each national 

securities exchange on which the common stock of 

[CGM] is listed.’’) (emphasis added). 

60See proposed Bylaws Section 2.16(j)(i). See also 

supra notes 34–36 and accompanying text. 

61See Amendment Nos. 1, supra note 4. 

separate proxy materials and entails 

substantial cost. Proposed Section 2.16 

of the Bylaws provides CGM 

stockholders an alternative path for 

having their nominees considered 

through the proxy process. This 

proposal is intended to respond to a 

stockholder proposal, submitted under 

Rule 14a–8 of the Act, requesting that 

the Board take steps to implement a 

proxy access bylaw provision.50

The Exchanges state that, by 

permitting an Eligible Stockholder of 

CGM that meets the stated requirements 

to nominate directors and have its 

nominees included in CGM’s annual 

meeting proxy statement,51 the proposal 

would strengthen the corporate 

governance of CGM, which the 

Exchanges believe is beneficial to both 

investors and the public interest.52 The 

Commission believes that the proposal 

to provide a process for stockholder 

proxy access in the Bylaws should help 

to provide the stockholders of CGM that 

meet the stated requirements of 

proposed Section 2.16 with an 

alternative opportunity to exercise their 

right to nominate directors for the 

Board, consistent with the Act. 

The proposed rule changes, as 

modified by Amendment Nos. 1, would 

require CGM to include in its proxy 

materials information regarding the 

Stockholder Nominee and the Eligible 

Stockholder, including the Required 

Information, any Supporting Statement, 

and any other information CGM 

determines to include relating to the 

Stockholder Nominee or the Eligible 

Stockholder.53 The Commission 

believes that the provision of such 

information could help stockholders to 

assess whether a nominee submitted 

pursuant to proposed Section 2.16 

possesses the necessary qualifications 

and experience to serve as a director. 

The proposed rule changes to the 

Bylaws limit the availability of proxy 

access in certain circumstances. For 

example, in order to be eligible to 

submit a nomination to be included in 

the proxy statement pursuant to 

proposed Section 2.16, a stockholder (or 

a group of no more than 20 

stockholders) is required to own at least 

three percent of CGM’s outstanding 

shares of capital stock continuously for 

at least three years.54 Furthermore, a 

stockholder may only nominate a 

director to be included in the proxy 

materials pursuant to proposed Section 

2.16 if the stockholder represents that 

he or she acquired the Required Shares 

in the ordinary course of business and 

not with the intent to change or 

influence control of CGM, and does not 

presently have such intent.55 The 

proposal also limits the number of 

director nominees submitted pursuant 

to proposed Section 2.16 that may be 

included in the proxy statement to the 

greater of two or 20% of the total 

number of directors of the Board.56 The 

proposal would allow CGM to disregard 

or omit director nominees submitted 

pursuant to proposed Section 2.16 from 

the proxy materials in certain 

circumstances, including when the 

Stockholder Nominee has provided any 

information to CGM or its stockholders 

that was untrue in any material respect 

or that omitted to state a material fact 

necessary to make the statements made, 

in light of the circumstances in which 

they were made, not misleading.57 Such 

limitations on proxy access seem 

designed to balance the ability of CGM 

stockholders to participate more fully in 

the nomination and election process 

against the potential cost and practical 

difficulties of requiring inclusion of 

stockholder nominations in proxy 

materials. 

As discussed above, the proposed 

proxy access provisions include 

safeguards that will help to ensure that 

any director nominees submitted 

pursuant to proposed Section 2.16 

would qualify as independent directors 

and that the nominating shareholder’s 

nomination of the nominee, and the 

nominee’s membership on the Board, if 

elected, would not violate any 

applicable laws, rules or regulations of 

any government entity or relevant selfregulatory organization. Specifically, the 

proposal permits CGM to disregard and 

omit from the proxy materials any 

nominee whose election as a member of 

the Board would cause CGM to be in 

violation of the Bylaws, CGM’s 

Certificate of Incorporation, the rules of 

the principal national securities 

exchange on which CGM’s capital stock 

is traded, or any applicable law, rule or 

regulation.58 CGM may also disregard or 

omit from the proxy materials any 

nominee who would not be an 

independent director under the Bylaws, 

the rules of the principal national 

securities exchange on which CGM’s 

capital stock is traded,59 any applicable 

rules of the Commission, or any 

publicly disclosed standards used by 

the Board in determining and disclosing 

independence of CGM’s directors.60 The 

Exchanges have represented that any 

independence standards adopted by the 

Board will apply uniformly to all 

director nominees, including 

Stockholder Nominees, and that any 

future independence standards adopted 

by the Board will comply with all 

applicable laws, rules, and 

regulations.61

In addition, the Stockholder Nominee 

must provide a written representation 

and agreement that, among other things, 

the nominee (i) is not and will not 

become a party to any Voting 

Commitment that has not been 

disclosed to CGM or any Voting 

Commitment that could reasonably be 

expected to limit or interfere with the 

Stockholder Nominee’s ability to 

comply, if elected as a director of CGM, 

with its fiduciary duties under 

applicable law, and (ii) will abide by 

and comply with the Bylaws, CGM’s 

Certificate of Incorporation and 

applicable policies of CGM, including 

all applicable publicly disclosed 


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62See proposed Bylaws Section 2.16(f)(x). See 

also supra note 24 and accompanying text. 

63See Amendment Nos. 1, supra note 4. 

64 15 U.S.C. 78s(b)(2). 

65 15 U.S.C. 78s(b)(2). 

66 17 CFR 200.30–3(a)(12). 

1 15 U.S.C. 78s(b)(1). 

2 17 CFR 240.19b–4. 

corporate governance, conflict of 

interest, confidentiality and stock 

ownership and trading policies and 

guidelines of CGM, as well as the 

applicable provisions of the rules and 

regulations of the Commission and any 

stock exchange applicable to CGM.62

The Commission believes that the 

safeguards and limitations described 

above, including the representations set 

forth in Amendment Nos. 1, should help 

to ensure that CGM can comply with its 

Bylaws and any applicable laws, rules, 

regulations, including, among others, 

exchange listing standards on 

independent directors, consistent with 

Section 6(b)(5) of the Act. The 

Commission further believes that the 

representations set forth in Amendment 

Nos. 1 will help to ensure that any 

independence standards adopted by the 

Board will apply uniformly among both 

Stockholder Nominees and Board 

nominees, consistent with Section 

6(b)(5) of the Act. Based on the 

foregoing, the Commission finds that the 

proposed rule changes, as modified by 

Amendment Nos. 1, are consistent with 

the Act. 

Finally, the Commission finds that the 

proposed conforming changes to 

Sections 2.10 and 2.11 of the Bylaws are 

consistent with the Act because these 

changes prevent stockholder confusion 

by clarifying the operation of the 

proposed proxy access provision and 

other provisions by which stockholders 

may nominate directors to the Board. 

IV. Solicitation of Comments on 

Amendment Nos. 1 

Interested persons are invited to 

submit written data, views, and 

arguments concerning the foregoing, 

including whether the proposed rule 

changes, as modified by Amendment 

Nos. 1, are 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 Nos. SR– 

CBOE–2021–023; SR–CboeBYX–2021– 

009; SR–CboeBZX–2021–028; SR– 

CboeEDGA–2021–009; SR–CboeEDGX– 

2021–021; SR–C2–2021–007 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 

Nos. SR–CBOE–2021–023; SR– 

CboeBYX–2021–009; SR–CboeBZX– 

2021–028; SR–CboeEDGA–2021–009; 

SR–CboeEDGX–2021–021; SR–C2– 

2021–007. These file numbers 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 

changes that are filed with the 

Commission, and all written 

communications relating to the 

proposed rule changes 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 

filings also will be available for 

inspection and copying at the principal 

office of the Exchanges. 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 Nos. 

SR–CBOE–2021–023; SR–CboeBYX– 

2021–009; SR–CboeBZX–2021–028; SR– 

CboeEDGA–2021–009; SR–CboeEDGX– 

2021–021; SR–C2–2021–007, and 

should be submitted on or before 

August 27, 2021. 

V. Accelerated Approval of Proposed 

Rule Changes, as Modified by 

Amendment Nos. 1 

The Commission finds good cause, 

pursuant to Section 19(b)(2) of the Act, 

to approve the proposed rule changes, 

as modified by Amendment Nos. 1, 

prior to the 30th day after the date of 

publication of Amendment Nos. 1 in the 

Federal Register. As discussed above, in 

Amendment Nos. 1 the Exchanges 

clarify the circumstances under which 

Stockholder Nominees may be excluded 

from the proxy materials by 

representing that any publicly disclosed 

standards used by the Board in 

determining and disclosing 

independence of CGM’s directors will 

apply uniformly to all director 

nominees, including Stockholder 

Nominees, and will comply with all 

applicable laws, rules, and 

regulations.63 The Commission believes 

that these revisions provide needed 

clarity to the proposed rule changes and 

help to ensure the proposal is consistent 

with investor protection under Section 

6(b)(5) of the Act. Accordingly, the 

Commission finds good cause for 

approving the proposed rule changes, as 

modified by Amendment Nos. 1, on an 

accelerated basis, pursuant to Section 

19(b)(2) of the Act.64

VI. Conclusion 

It is therefore ordered, pursuant to 

Section 19(b)(2) of the Act,65 that the 

proposed rule changes (SR–CBOE– 

2021–023; SR–CboeBYX–2021–009; SR– 

CboeBZX–2021–028; SR–CboeEDGA– 

2021–009; SR–CboeEDGX–2021–021; 

SR–C2–2021–007), as modified by 

Amendment Nos. 1, be, and hereby are, 

approved on an accelerated basis. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.66

J. Matthew DeLesDernier, 

Assistant Secretary. 

[FR Doc. 2021–16796 Filed 8–5–21; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–92543; File No. SR– 

CboeBZX–2021–051] 

Self-Regulatory Organizations; Cboe 

BZX Exchange, Inc.; Notice of Filing of 

a Proposed Rule Change To List and 

Trade Shares of the ARK 21Shares 

Bitcoin ETF Under BZX Rule 

14.11(e)(4), Commodity-Based Trust 

Shares 

August 2, 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 July 20, 

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 

Commission is publishing this notice to 


jbell on DSKJLSW7X2PROD with NOTICES