Self-Regulatory Organizations; Miami International Securities Exchange LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend the Exchange's Amended and Restated Certificate of Formation, Second Amended and Restated Limited Liability Company Agreement, and the Amended and Restated By-Laws, 73318-73321 [2020-25264]
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Federal Register / Vol. 85, No. 222 / Tuesday, November 17, 2020 / Notices
the most significant aspects of such
statements.
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–90392; File No. SR–MIAX–
2020–35]
Self-Regulatory Organizations; Miami
International Securities Exchange LLC;
Notice of Filing and Immediate
Effectiveness of a Proposed Rule
Change To Amend the Exchange’s
Amended and Restated Certificate of
Formation, Second Amended and
Restated Limited Liability Company
Agreement, and the Amended and
Restated By-Laws
November 10, 2020.
Pursuant to the provisions of Section
19(b)(1) of the Securities Exchange Act
of 1934 (‘‘Act’’) 1 and Rule 19b–4
thereunder,2 notice is hereby given that
on October 28, 2020, Miami
International Securities Exchange LLC
(‘‘MIAX Options’’ or ‘‘Exchange’’) filed
with the Securities and Exchange
Commission (‘‘Commission’’) a
proposed rule change as described in
Items I and II below, which Items have
been prepared by the Exchange. The
Commission is publishing this notice to
solicit comments on the proposed rule
change from interested persons.
I. Self-Regulatory Organization’s
Statement of the Terms of Substance of
the Proposed Rule Change
The Exchange is filing a proposal to
amend the Exchange’s Amended and
Restated Certificate of Formation (the
‘‘Certificate of Formation’’), Second
Amended and Restated Limited
Liability Company Agreement (the ‘‘LLC
Agreement’’), and the Amended and
Restated By-Laws (the ‘‘By-Laws’’).
The text of the proposed rule change
is available on the Exchange’s website at
https://www.miaxoptions.com/rulefilings/ at MIAX Options’ principal
office, and at the Commission’s Public
Reference Room.
II. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
In its filing with the Commission, the
Exchange included statements
concerning the purpose of and basis for
the proposed rule change and discussed
any comments it received on the
proposed rule change. The text of these
statements may be examined at the
places specified in Item IV below. The
Exchange has prepared summaries, set
forth in sections A, B, and C below, of
A. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
1. Purpose
Changes to the Certificate of Formation
The Exchange proposes to amend the
Certificate of Formation to make several
non-substantive, administrative and
clarifying changes. On June 17, 2011,
the Exchange executed the Amended
and Restated Certificate of Formation.
The Exchange first proposes to amend
the first paragraph of the Certificate of
Formation in order to accurately reflect
the amended document title and the
date upon which it was executed. In
particular, the Exchange proposes to
delete the word ‘‘original’’ and the
phrase ‘‘under Miami International
Stock Exchange, LLC on September 10,
2007, as amended by the Certificate of
Amendment, filed on April 21, 2010.’’ 3
The Exchange proposes to insert the
amended document title and date upon
which the Amended and Restated
Certificate of Formation was executed.
With the proposed changes, the first
paragraph of the Certificate of
Formation will be as follows:
This filing has been executed and filed in
accordance with Section 18–208 of the
Limited Liability Company Act. This
document is being executed for the purpose
of amending and restating the Amended and
Restated Certificate of Formation, filed on
June 17, 2011 under file number: 4420452.
The Exchange also proposes to amend
the Second clause in the Certificate of
Formation to update the address of the
Exchange’s registered office in the State
of Delaware, as well as the Exchange’s
registered agent. In particular, the
Exchange proposes to delete the address
and company name of the registered
office and registered agent, respectively,
as contained in the current Certificate of
Formation.4 The Exchange proposes to
insert in the Second clause of the
Certificate of Formation the updated
address of its registered office and the
name of the Exchange’s registered agent.
With the proposed changes, the Second
clause of the Certificate of Formation
will be as follows:
The address of its registered office in the
State of Delaware is 1209 Orange Street in the
City of Wilmington, County of New Castle,
ZIP Code 19801. The name of its registered
agent at such address is The Corporation
Trust Company.
The Exchange also proposes to amend
the signature line for the Certificate of
Formation by deleting ‘‘Thomas P.
Gallagher, Chairman,’’ as the signatory.5
In its place, the Exchange proposes to
insert the signatory as ‘‘Barbara J.
Comly, EVP, General Counsel &
Corporate Secretary.’’
The purpose of the proposed changes
to the Certificate of Formation are to
ensure that the Exchange’s Certificate of
Formation accurately reflects correct,
current information, including the name
of the amended document as well as the
legal address and name of the registered
office and registered agent for the
Exchange in order to reduce potential
investor or market participant
confusion.
Changes to the LLC Agreement
The Exchange proposes to amend the
LLC Agreement to make several nonsubstantive, administrative and
clarifying changes. On May 20, 2011,
the Exchange executed the First
Amended and Restated Limited
Liability Company Agreement (the
‘‘First LLC Agreement’’). On December
1, 2012, the Exchange executed the
Second Amended and Restated Limited
Liability Company Agreement (the
‘‘Second LLC Agreement’’), which
restated the First LLC Agreement. The
first paragraph of the LLC Agreement
refers to the document as the ‘‘Operating
Agreement.’’ 6 The Exchange now
proposes to amend the first paragraph of
the LLC Agreement to reflect the current
amended document, which will be the
‘‘Third Amended and Restated Limited
Liability Company Agreement’’ (the
‘‘Third LLC Agreement’’). Accordingly,
the Exchange proposes to update the
text in the first paragraph of the LLC
Agreement to reflect this change,
thereby deleting reference to the name
and date of the First LLC Agreement,
and inserting the name and date of the
Second LLC Agreement as being
amended and restated by the Third LLC
Agreement. The Exchange also proposes
to delete the reference to the ‘‘Operating
Agreement,’’ for purposes of clarity and
uniformity.7 With the proposed
changes, the first paragraph of the LLC
Agreement will be as follows:
Miami International Holdings, Inc., a
Delaware corporation, the sole member (the
‘‘LLC Member’’) of Miami International
Securities Exchange, LLC, a Delaware limited
liability company (the ‘‘Company’’), pursuant
to and in accordance with the Delaware
Limited Liability Company Act, 6 Del.C.
§ 18–101, et seq. (the ‘‘LLC Act’’), hereby
5 See
1 15
U.S.C. 78s(b)(1).
2 17 CFR 240.19b–4.
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19:46 Nov 16, 2020
3 See
Certificate of Formation.
4 See id., SECOND Clause.
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supra note 3.
LLC Agreement.
7 See id.
6 See
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Federal Register / Vol. 85, No. 222 / Tuesday, November 17, 2020 / Notices
declares the following to be the Third
Amended and Restated Limited Liability
Company Agreement (the ‘‘LLC Agreement’’)
of the Company which amends and restates
in its entirety the Second Amended and
Restated Limited Liability Company
Agreement dated December 1, 2012 of the
Company. Capitalized terms not otherwise
defined herein shall have the meanings set
forth on Schedule A to this LLC Agreement.
Next, the Exchange proposes to
amend Section 3 of the LLC Agreement
to amend the address referenced therein
for the Exchange’s principal place of
business. The Exchange has increased
its office space at its current address of
7 Roszel Road, Princeton, New Jersey
08540.8 The new mailing and principal
address for the Princeton, New Jersey
office is now 7 Roszel Road, Suite 1A,
Princeton, New Jersey 08540.
Accordingly, the Exchange proposes to
amend Section 3 of the LLC Agreement
to reflect the change in mailing address
from ‘‘5th Floor’’ to ‘‘Suite 1A.’’
The Exchange next proposes to amend
Section 4 of the LLC Agreement to
update the address of the Exchange’s
registered office in the State of
Delaware, as well as the Exchange’s
registered agent. In particular, the
Exchange proposes to delete the address
and company name of the registered
office and registered agent, respectively,
as contained in the current LLC
Agreement. The Exchange proposes to
insert in Section 4 of the LLC
Agreement the updated address of its
registered office and the name of the
Exchange’s registered agent. With the
proposed changes, Section 4 of the LLC
Agreement will be as follows:
The registered office of the Company
required by the LLC Act to be maintained in
the State of Delaware shall be 1209 Orange
Street in the City of Wilmington, County of
New Castle, ZIP Code 19801 or such other
office as the Board of Directors may designate
from time to time. The registered agent for
the Company shall be The Corporation Trust
Company, or such other registered agent as
the Board of Directors may designate from
time to time.
Next, the Exchange proposes to
amend Section 6 of the LLC Agreement
to clarify that Miami International
Holdings, Inc. (‘‘MIH’’) is the sole LLC
Member 9 of the Exchange and to update
the address for MIH, as described above.
The Exchange also proposes to delete
the reference to ‘‘Schedule B’’ and the
following sentence: ‘‘The LLC Member
was admitted to the Company as an LLC
Member of the Company upon its
execution of a counterpart signature
8 See
id., Section 3.
Member’’ means Miami International
Holdings, Inc., as the sole member of the Company.
See LLC Agreement, Schedule A, Definitions.
9 ‘‘LLC
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page to the Operating Agreement at
which time it acquired 100% of the
limited liability company interests of
the Company.’’ The purpose of these
changes is for administrative ease and to
provide uniformity throughout the LLC
Agreement. The Exchange also proposes
to delete ‘‘Schedule B’’ from the LLC
Agreement, which simply states that the
LLC Member is MIH. This is duplicative
information as the term ‘‘LLC Member’’
is defined in Schedule A to the LLC
Agreement.10 Accordingly, the
Exchange proposes to delete Schedule B
and move the information regarding the
LLC Member into Section 6.
Next, the Exchange proposes to
amend Section 9 of the LLC Agreement
to delete the last sentence of Section
9(a), which states, ‘‘The Directors as of
the date of this LLC Agreement are set
forth on Schedule C attached hereto.’’
Schedule C of the LLC Agreement
provides the names and classifications
of the Board of Directors of the
Exchange as of December 1, 2012. The
Exchange proposes to delete Schedule
C, and all references to Schedule C, as
further described below, from the LLC
Agreement. The names and
classifications of the Board of Directors
of the Exchange are publicly available
information through the Commission’s
Electronic Data Gathering, Analysis, and
Retrieval (‘‘EDGAR’’) website.11 The
purpose of these changes is for
administrative ease and to provide
uniformity throughout the LLC
Agreement.
The Exchange also proposes to amend
the first sentence of Section 9(c) to
clarify that the By-Laws 12 of the
Exchange have been adopted, thereby
deleting the phrase ‘‘hereby adopt the,’’
in order to clarify that this has already
occurred. Further, the Exchange
proposes to delete the reference to
‘‘Exhibit A’’ in Section 9(c). Exhibit A
currently provides that the By-Laws of
MIAX are attached to the LLC
Agreement. The Exchange provides the
By-Laws as publicly available
information on its website. Accordingly,
additional reference to the By-Laws in
Exhibit A is duplicative.
Next, the Exchange proposes to
amend Section 29 of the LLC Agreement
to delete the reference to ‘‘Schedule B’’
and provide a cross-reference to Section
6 for the address of the LLC Member, as
described above. These proposed
changes will provide clarity and
10 See
id.
https://www.sec.gov/edgar/searchedgar/
companysearch.html and https://www.sec.gov/oiea/
Article/edgarguide.html for EDGAR filing
information.
12 ‘‘By-Laws’’ has the meaning set forth in Section
9(c). See LLC Agreement, Schedule A, Definitions.
11 See
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73319
uniformity throughout the LLC
Agreement.
The Exchange next proposes to amend
‘‘Schedule A, Definitions’’ to the LLC
Agreement to delete the definition for
‘‘Operating Agreement.’’ As described
above, the Exchange is amending and
restating the LLC Agreement for the
third time and as such, is removing the
reference in the first paragraph of the
LLC Agreement to the ‘‘Operating
Agreement.’’
Changes to the By-Laws
The Exchange proposes to amend the
first paragraph of the By-Laws to make
several non-substantive, administrative
changes. In particular, the Exchange
proposes to amend the first paragraph of
the By-Laws to delete the phrases
‘‘Second Amended and Restated’’ and
‘‘dated as of December 1, 2012,’’ both of
which refer to the LLC Agreement.13
The purpose of these changes is for
administrative ease and to provide
uniformity among the titles of each of
the Exchange’s corporate documents.
With the proposed changes, the first
paragraph of the By-Laws will be as
follows:
These Amended and Restated By-Laws
have been established as the By-Laws of
Miami International Securities Exchange,
LLC, a Delaware limited liability company
(the ‘‘Company’’), pursuant to the Limited
Liability Company Agreement of the
Company (as amended from time to time, the
‘‘LLC Agreement’’), and, together with the
LLC Agreement, constitute the limited
liability company agreement of the Company
within the meaning of the LLC Act (as
defined in the LLC Agreement). In the event
of any inconsistency between the LLC
Agreement and these By-Laws, the provision
of the LLC Agreement shall control.
Finally, the Exchange proposes to
make technical and conforming changes
to time and date of effectiveness on the
signature pages of each of the Certificate
of Formation, LLC Agreement and ByLaws. The Exchange also proposes to
amend the signature line of the LLC
Agreement to insert the full title of the
signatory as ‘‘Thomas P. Gallagher,
Chairman and Chief Executive Officer.’’
2. Statutory Basis
The Exchange believes the proposed
rule change is consistent with the Act
and the rules and regulations
thereunder applicable to the Exchange
and, in particular, the requirements of
Section 6(b) of the Act.14 Specifically,
the Exchange believes the proposed rule
change is consistent with the Section
13 See
14 15
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By-Laws.
U.S.C. 78f(b).
17NON1
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Federal Register / Vol. 85, No. 222 / Tuesday, November 17, 2020 / Notices
6(b)(5) 15 requirements that the rules of
an exchange be designed to prevent
fraudulent and manipulative acts and
practices, to promote just and equitable
principles of trade, to foster cooperation
and coordination with persons engaged
in regulating, clearing, settling,
processing information with respect to,
and facilitating transactions in
securities, to remove impediments to
and perfect the mechanism of a free and
open market and a national market
system, and, in general, to protect
investors and the public interest.
Additionally, the Exchange believes the
proposed rule change is consistent with
the Section 6(b)(5) 16 requirement that
the rules of an exchange not be designed
to permit unfair discrimination between
customers, issuers, brokers, or dealers.
The Exchange believes that the
proposed changes to the Certificate of
Formation, LLC Agreement and ByLaws are designed to prevent fraudulent
and manipulative acts and practices,
promote just and equitable principles of
trade, foster cooperation and
coordination with persons engaged in
regulating, clearing, settling, processing
information with respect to, and
facilitating transactions in securities,
remove impediments to and perfect the
mechanism of a free and open market
and a national market system, and, in
general, protect investors and the public
interest. The Exchange believes that the
proposed changes are non-substantive,
administrative changes and will reduce
potential investor or market participant
confusion regarding the Exchange’s
corporate documents. Further, the
Exchange believes the proposed changes
are not material and will have no impact
on the governance, ownership, or
operations of the Exchange.
The Exchange believes its proposal to
amend the Certificate of Formation, LLC
Agreement and By-Laws are consistent
with the Act as the changes are to
maintain accurate information
regarding, among other things, the
Exchange’s address, registered agent and
registered office.
B. Self-Regulatory Organization’s
Statement on Burden on Competition
The Exchange does not believe that
the proposed rule change will impose
any burden on competition that is not
necessary or appropriate in furtherance
of the purposes of the Act. The
Exchange does not believe the proposed
rule change will impose any burden on
intra-market and inter-market
competition that is not necessary or
appropriate in furtherance of the
15 15
U.S.C. 78f(b)(5).
16 Id.
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purposes of the Act because the
proposed changes are not intended to
address competitive issues but rather
are administrative, non-substantive
changes that are concerned solely with
updating the Certificate of Formation,
LLC Agreement and By-Laws to reflect
current, accurate information.
C. Self-Regulatory Organization’s
Statement on Comments on the
Proposed Rule Change Received From
Members, Participants, or Others
Written comments were neither
solicited nor received.
III. Date of Effectiveness of the
Proposed Rule Change and Timing for
Commission Action
Because the foregoing proposed rule
change does not: (i) Significantly affect
the protection of investors or the public
interest; (ii) impose any significant
burden on competition; and (iii) become
operative for 30 days from the date on
which it was filed, or such shorter time
as the Commission may designate, it has
become effective pursuant to Section
19(b)(3)(A) of the Act 17 and Rule 19b–
4(f)(6) thereunder.18
A proposed rule change filed
pursuant to Rule 19b–4(f)(6) under the
Act 19 normally does not become
operative for 30 days after the date of its
filing. However, Rule 19b–4(f)(6)(iii) 20
permits the Commission to designate a
shorter time if such action is consistent
with the protection of investors and the
public interest. The Exchange has
requested that the Commission waive
the 30-day operative delay. As the
proposed rule change raises no novel
issues and promotes accuracy and
consistency within the Exchange’s
Certificate of Formation, LLC
Agreement, and By-Laws, the
Commission believes that waiver of the
30-day operative delay is consistent
with the protection of investors and the
public interest. Accordingly, the
Commission hereby waives the
operative delay and designates the
proposed rule change operative upon
filing.21
17 15
U.S.C. 78s(b)(3)(A).
CFR 240.19b–4(f)(6). In addition, Rule 19b–
4(f)(6)(iii) requires a self-regulatory organization to
give the Commission written notice of its intent to
file the proposed rule change, along with a brief
description and text of the proposed rule change,
at least five business days prior to the date of filing
of the proposed rule change, or such shorter time
as designated by the Commission. The Exchange
has satisfied this requirement.
19 17 CFR 240.19b–4(f)(6).
20 17 CFR 240.19b–4(f)(6)(iii).
21 For purposes only of waiving the 30-day
operative delay, the Commission also has
considered the proposed rule’s impact on
efficiency, competition, and capital formation. See
15 U.S.C. 78c(f).
18 17
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At any time within 60 days of the
filing of the proposed rule change, the
Commission summarily may
temporarily suspend such rule change if
it appears to the Commission that such
action is necessary or appropriate in the
public interest, for the protection of
investors, or otherwise in furtherance of
the purposes of the Act. If the
Commission takes such action, the
Commission shall institute proceedings
to determine whether the proposed rule
change should be approved or
disapproved.
IV. Solicitation of Comments
Interested persons are invited to
submit written data, views, and
arguments concerning the foregoing,
including whether the proposed rule
change is consistent with the Act.
Comments may be submitted by any of
the following methods:
Electronic Comments
• Use the Commission’s internet
comment form (https://www.sec.gov/
rules/sro.shtml); or
• Send an email to rule-comments@
sec.gov. Please include File Number SR–
MIAX–2020–35 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–MIAX–2020–35. 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 (https://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
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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–MIAX–2020–35, and
should be submitted on or before
December 8, 2020.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.22
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020–25264 Filed 11–16–20; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Investment Company Act Release No.
34092; File No. 812–15146]
AdvisorShares Trust, et al.
November 12, 2020.
Securities and Exchange
Commission (‘‘Commission’’).
ACTION: Notice.
AGENCY:
Notice of an application for an order
under section 6(c) of the Investment
Company Act of 1940 (‘‘Act’’) for an
exemption from sections 2(a)(32),
5(a)(1), and 22(d) of the Act and rule
22c–1 under the Act, and under sections
6(c) and 17(b) of the Act for an
exemption from sections 17(a)(1) and
17(a)(2) of the Act.
APPLICANTS: AdvisorShares Trust (the
‘‘Trust’’), AdvisorShares Investments,
LLC (the ‘‘Initial Adviser’’), and
Foreside Fund Services, LLC (the
‘‘Distributor’’).
SUMMARY OF APPLICATION: Applicants
request an order (‘‘Order’’) that permits:
(a) ActiveShares ETFs (as described in
the Reference Order (as defined below))
to issue shares (‘‘Shares’’) redeemable in
large aggregations only (‘‘creation
units’’); (b) secondary market
transactions in Shares to occur at
negotiated market prices rather than at
net asset value; and (c) certain affiliated
persons of an ActiveShares ETF to
deposit securities into, and receive
securities from, the ActiveShares ETF in
connection with the purchase and
redemption of creation units. The relief
in the Order would incorporate by
reference terms and conditions of the
same relief of a previous order granting
the same relief sought by applicants, as
that order may be amended from time to
time (‘‘Reference Order’’).1
22 17
CFR 200.30–3(a)(12).
ETFs Trust, et al., Investment
Company Act Release Nos. 33440 (April 8, 2019)
1 Precidian
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The application was filed
on July 31, 2020 and amended on
November 3, 2020.
HEARING OR NOTIFICATION OF HEARING: An
order granting the requested relief will
be issued unless the Commission orders
a hearing. Interested persons may
request a hearing by emailing the
Commission’s Secretary at SecretarysOffice@sec.gov and serving applicants
with a copy of the request by email.
Hearing requests should be received by
the Commission by 5:30 p.m. on
December 7, 2020, and should be
accompanied by proof of service on
applicants, in the form of an affidavit or,
for lawyers, a certificate of service.
Pursuant to rule 0–5 under the Act,
hearing requests should state the nature
of the writer’s interest, any facts bearing
upon the desirability of a hearing on the
matter, the reason for the request, and
the issues contested. Persons who wish
to be notified of a hearing may request
notification by emailing the
Commission’s Secretary at SecretarysOffice@sec.gov.
ADDRESSES: The Commission:
Secretarys-Office@sec.gov. Applicants:
info@advisorshares.com.
FOR FURTHER INFORMATION CONTACT: Jill
Ehrlich, Senior Counsel, at (202) 551–
6819 or Trace W. Rakestraw, Branch
Chief, at (202) 551–6825 (Division of
Investment Management, Chief
Counsel’s Office).
SUPPLEMENTARY INFORMATION: The
following is a summary of the
application. The complete application
may be obtained via the Commission’s
website by searching for the file
number, or for an applicant using the
Company name box, at https://
www.sec.gov/search/search.htm or by
calling (202) 551–8090.
FILING DATE:
Applicants
1. The Trust is a statutory trust
established under the laws of Delaware
and will consist of one or more series
operating as ActiveShares ETFs. The
Trust is registered as an open-end
management investment company
under the Act. Applicants seek relief
with respect to Funds (as defined
below), including two initial Funds
(‘‘Initial Funds’’). The Funds will
(notice) and 33477 (May 20, 2019) (order).
Applicants are not seeking relief under section
12(d)(1)(J) of the Act for an exemption from sections
12(d)(1)(A) and 12(d)(1)(B) of the Act (the ‘‘Section
12(d)(1) Relief’’), and relief under sections 6(c) and
17(b) of the Act for an exemption from sections
17(a)(1) and 17(a)(2) of the Act relating to the
Section 12(d)(1) Relief, as granted in the Reference
Order. Accordingly, to the extent the terms and
conditions of the Reference Order relate to such
relief, they are not incorporated by reference into
the Order.
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73321
operate as ActiveShares ETFs as
described in the Reference Order.2
2. The Initial Adviser, a Delaware
limited liability company, will be the
investment adviser to the Initial Funds.
An Adviser (as defined below) will
serve as investment adviser to each
Fund. The Initial Adviser is, and any
other Adviser will be, registered as an
investment adviser under the
Investment Advisers Act of 1940
(‘‘Advisers Act’’). The Adviser may
enter into sub-advisory agreements with
other investment advisers to act as subadvisers with respect to the Funds (each
a ‘‘Sub-Adviser’’). Any Sub-Adviser will
be registered under the Advisers Act.
3. The Distributor is a Delaware
limited liability company and a brokerdealer registered under the Securities
Exchange Act of 1934, as amended, and
will act as the principal underwriter of
Shares of the Funds. Applicants request
that the requested relief apply to any
distributor of Shares, whether affiliated
or unaffiliated with the Adviser and/or
Sub-Adviser (included in the term
‘‘Distributor’’). Any Distributor will
comply with the terms and conditions
of the Order.
Applicants’ Requested Exemptive Relief
4. Applicants seek the requested
Order under section 6(c) of the Act for
an exemption from sections 2(a)(32),
5(a)(1), and 22(d) of the Act and rule
22c–1 under the Act, and under sections
6(c) and 17(b) of the Act for an
exemption from sections 17(a)(1) and
17(a)(2) of the Act. The requested Order
would permit applicants to offer
ActiveShares ETFs. Because the relief
requested is the same as certain of the
relief granted by the Commission under
the Reference Order and because the
Initial Adviser has entered into a license
agreement with Precidian Investments
LLC, or an affiliate thereof, in order to
offer ActiveShares ETFs,3 the Order
would incorporate by reference the
terms and conditions of the same relief
of the Reference Order.
5. Applicants request that the Order
apply to the Initial Funds and to any
other existing or future registered openend management investment company
or series thereof that: (a) Is advised by
2 To facilitate arbitrage, an ActiveShares ETF
disseminates a ‘‘verified intraday indicative value’’
or ‘‘VIIV,’’ reflecting the value of its portfolio
holdings, calculated every second during the
trading day. To protect the identity and weightings
of its portfolio holdings, an ActiveShares ETF sells
and redeems its Shares in creation units to
authorized participants only through an unaffiliated
broker-dealer acting on an agency basis.
3 Aspects of the Funds are covered by intellectual
property rights, including but not limited to those
which are described in one or more patent
applications.
E:\FR\FM\17NON1.SGM
17NON1
]]>Agencies
[Federal Register Volume 85, Number 222 (Tuesday, November 17, 2020)]
[Notices]
[Pages 73318-73321]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-25264]
[[Page 73318]]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-90392; File No. SR-MIAX-2020-35]
Self-Regulatory Organizations; Miami International Securities
Exchange LLC; Notice of Filing and Immediate Effectiveness of a
Proposed Rule Change To Amend the Exchange's Amended and Restated
Certificate of Formation, Second Amended and Restated Limited Liability
Company Agreement, and the Amended and Restated By-Laws
November 10, 2020.
Pursuant to the provisions of Section 19(b)(1) of the Securities
Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice
is hereby given that on October 28, 2020, Miami International
Securities Exchange LLC (``MIAX Options'' or ``Exchange'') filed with
the Securities and Exchange Commission (``Commission'') a proposed rule
change as described in Items I and II below, which Items have been
prepared by the Exchange. The Commission is publishing this notice to
solicit comments on the proposed rule change from interested persons.
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\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
The Exchange is filing a proposal to amend the Exchange's Amended
and Restated Certificate of Formation (the ``Certificate of
Formation''), Second Amended and Restated Limited Liability Company
Agreement (the ``LLC Agreement''), and the Amended and Restated By-Laws
(the ``By-Laws'').
The text of the proposed rule change is available on the Exchange's
website at https://www.miaxoptions.com/rule-filings/ at MIAX Options'
principal office, and at the Commission's Public Reference Room.
II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
In its filing with the Commission, the Exchange included statements
concerning the purpose of and basis for the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below. The Exchange has prepared summaries, set forth in
sections A, B, and C below, of the most significant aspects of such
statements.
A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
1. Purpose
Changes to the Certificate of Formation
The Exchange proposes to amend the Certificate of Formation to make
several non-substantive, administrative and clarifying changes. On June
17, 2011, the Exchange executed the Amended and Restated Certificate of
Formation. The Exchange first proposes to amend the first paragraph of
the Certificate of Formation in order to accurately reflect the amended
document title and the date upon which it was executed. In particular,
the Exchange proposes to delete the word ``original'' and the phrase
``under Miami International Stock Exchange, LLC on September 10, 2007,
as amended by the Certificate of Amendment, filed on April 21, 2010.''
\3\ The Exchange proposes to insert the amended document title and date
upon which the Amended and Restated Certificate of Formation was
executed. With the proposed changes, the first paragraph of the
Certificate of Formation will be as follows:
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\3\ See Certificate of Formation.
This filing has been executed and filed in accordance with
Section 18-208 of the Limited Liability Company Act. This document
is being executed for the purpose of amending and restating the
Amended and Restated Certificate of Formation, filed on June 17,
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2011 under file number: 4420452.
The Exchange also proposes to amend the Second clause in the
Certificate of Formation to update the address of the Exchange's
registered office in the State of Delaware, as well as the Exchange's
registered agent. In particular, the Exchange proposes to delete the
address and company name of the registered office and registered agent,
respectively, as contained in the current Certificate of Formation.\4\
The Exchange proposes to insert in the Second clause of the Certificate
of Formation the updated address of its registered office and the name
of the Exchange's registered agent. With the proposed changes, the
Second clause of the Certificate of Formation will be as follows:
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\4\ See id., SECOND Clause.
The address of its registered office in the State of Delaware is
1209 Orange Street in the City of Wilmington, County of New Castle,
ZIP Code 19801. The name of its registered agent at such address is
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The Corporation Trust Company.
The Exchange also proposes to amend the signature line for the
Certificate of Formation by deleting ``Thomas P. Gallagher, Chairman,''
as the signatory.\5\ In its place, the Exchange proposes to insert the
signatory as ``Barbara J. Comly, EVP, General Counsel & Corporate
Secretary.''
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\5\ See supra note 3.
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The purpose of the proposed changes to the Certificate of Formation
are to ensure that the Exchange's Certificate of Formation accurately
reflects correct, current information, including the name of the
amended document as well as the legal address and name of the
registered office and registered agent for the Exchange in order to
reduce potential investor or market participant confusion.
Changes to the LLC Agreement
The Exchange proposes to amend the LLC Agreement to make several
non-substantive, administrative and clarifying changes. On May 20,
2011, the Exchange executed the First Amended and Restated Limited
Liability Company Agreement (the ``First LLC Agreement''). On December
1, 2012, the Exchange executed the Second Amended and Restated Limited
Liability Company Agreement (the ``Second LLC Agreement''), which
restated the First LLC Agreement. The first paragraph of the LLC
Agreement refers to the document as the ``Operating Agreement.'' \6\
The Exchange now proposes to amend the first paragraph of the LLC
Agreement to reflect the current amended document, which will be the
``Third Amended and Restated Limited Liability Company Agreement'' (the
``Third LLC Agreement''). Accordingly, the Exchange proposes to update
the text in the first paragraph of the LLC Agreement to reflect this
change, thereby deleting reference to the name and date of the First
LLC Agreement, and inserting the name and date of the Second LLC
Agreement as being amended and restated by the Third LLC Agreement. The
Exchange also proposes to delete the reference to the ``Operating
Agreement,'' for purposes of clarity and uniformity.\7\ With the
proposed changes, the first paragraph of the LLC Agreement will be as
follows:
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\6\ See LLC Agreement.
\7\ See id.
Miami International Holdings, Inc., a Delaware corporation, the
sole member (the ``LLC Member'') of Miami International Securities
Exchange, LLC, a Delaware limited liability company (the
``Company''), pursuant to and in accordance with the Delaware
Limited Liability Company Act, 6 Del.C. Sec. 18-101, et seq. (the
``LLC Act''), hereby
[[Page 73319]]
declares the following to be the Third Amended and Restated Limited
Liability Company Agreement (the ``LLC Agreement'') of the Company
which amends and restates in its entirety the Second Amended and
Restated Limited Liability Company Agreement dated December 1, 2012
of the Company. Capitalized terms not otherwise defined herein shall
---------------------------------------------------------------------------
have the meanings set forth on Schedule A to this LLC Agreement.
Next, the Exchange proposes to amend Section 3 of the LLC Agreement
to amend the address referenced therein for the Exchange's principal
place of business. The Exchange has increased its office space at its
current address of 7 Roszel Road, Princeton, New Jersey 08540.\8\ The
new mailing and principal address for the Princeton, New Jersey office
is now 7 Roszel Road, Suite 1A, Princeton, New Jersey 08540.
Accordingly, the Exchange proposes to amend Section 3 of the LLC
Agreement to reflect the change in mailing address from ``5th Floor''
to ``Suite 1A.''
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\8\ See id., Section 3.
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The Exchange next proposes to amend Section 4 of the LLC Agreement
to update the address of the Exchange's registered office in the State
of Delaware, as well as the Exchange's registered agent. In particular,
the Exchange proposes to delete the address and company name of the
registered office and registered agent, respectively, as contained in
the current LLC Agreement. The Exchange proposes to insert in Section 4
of the LLC Agreement the updated address of its registered office and
the name of the Exchange's registered agent. With the proposed changes,
Section 4 of the LLC Agreement will be as follows:
The registered office of the Company required by the LLC Act to
be maintained in the State of Delaware shall be 1209 Orange Street
in the City of Wilmington, County of New Castle, ZIP Code 19801 or
such other office as the Board of Directors may designate from time
to time. The registered agent for the Company shall be The
Corporation Trust Company, or such other registered agent as the
Board of Directors may designate from time to time.
Next, the Exchange proposes to amend Section 6 of the LLC Agreement
to clarify that Miami International Holdings, Inc. (``MIH'') is the
sole LLC Member \9\ of the Exchange and to update the address for MIH,
as described above. The Exchange also proposes to delete the reference
to ``Schedule B'' and the following sentence: ``The LLC Member was
admitted to the Company as an LLC Member of the Company upon its
execution of a counterpart signature page to the Operating Agreement at
which time it acquired 100% of the limited liability company interests
of the Company.'' The purpose of these changes is for administrative
ease and to provide uniformity throughout the LLC Agreement. The
Exchange also proposes to delete ``Schedule B'' from the LLC Agreement,
which simply states that the LLC Member is MIH. This is duplicative
information as the term ``LLC Member'' is defined in Schedule A to the
LLC Agreement.\10\ Accordingly, the Exchange proposes to delete
Schedule B and move the information regarding the LLC Member into
Section 6.
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\9\ ``LLC Member'' means Miami International Holdings, Inc., as
the sole member of the Company. See LLC Agreement, Schedule A,
Definitions.
\10\ See id.
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Next, the Exchange proposes to amend Section 9 of the LLC Agreement
to delete the last sentence of Section 9(a), which states, ``The
Directors as of the date of this LLC Agreement are set forth on
Schedule C attached hereto.'' Schedule C of the LLC Agreement provides
the names and classifications of the Board of Directors of the Exchange
as of December 1, 2012. The Exchange proposes to delete Schedule C, and
all references to Schedule C, as further described below, from the LLC
Agreement. The names and classifications of the Board of Directors of
the Exchange are publicly available information through the
Commission's Electronic Data Gathering, Analysis, and Retrieval
(``EDGAR'') website.\11\ The purpose of these changes is for
administrative ease and to provide uniformity throughout the LLC
Agreement.
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\11\ See https://www.sec.gov/edgar/searchedgar/companysearch.html and https://www.sec.gov/oiea/Article/edgarguide.html for EDGAR filing information.
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The Exchange also proposes to amend the first sentence of Section
9(c) to clarify that the By-Laws \12\ of the Exchange have been
adopted, thereby deleting the phrase ``hereby adopt the,'' in order to
clarify that this has already occurred. Further, the Exchange proposes
to delete the reference to ``Exhibit A'' in Section 9(c). Exhibit A
currently provides that the By-Laws of MIAX are attached to the LLC
Agreement. The Exchange provides the By-Laws as publicly available
information on its website. Accordingly, additional reference to the
By-Laws in Exhibit A is duplicative.
---------------------------------------------------------------------------
\12\ ``By-Laws'' has the meaning set forth in Section 9(c). See
LLC Agreement, Schedule A, Definitions.
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Next, the Exchange proposes to amend Section 29 of the LLC
Agreement to delete the reference to ``Schedule B'' and provide a
cross-reference to Section 6 for the address of the LLC Member, as
described above. These proposed changes will provide clarity and
uniformity throughout the LLC Agreement.
The Exchange next proposes to amend ``Schedule A, Definitions'' to
the LLC Agreement to delete the definition for ``Operating Agreement.''
As described above, the Exchange is amending and restating the LLC
Agreement for the third time and as such, is removing the reference in
the first paragraph of the LLC Agreement to the ``Operating
Agreement.''
Changes to the By-Laws
The Exchange proposes to amend the first paragraph of the By-Laws
to make several non-substantive, administrative changes. In particular,
the Exchange proposes to amend the first paragraph of the By-Laws to
delete the phrases ``Second Amended and Restated'' and ``dated as of
December 1, 2012,'' both of which refer to the LLC Agreement.\13\ The
purpose of these changes is for administrative ease and to provide
uniformity among the titles of each of the Exchange's corporate
documents. With the proposed changes, the first paragraph of the By-
Laws will be as follows:
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\13\ See By-Laws.
These Amended and Restated By-Laws have been established as the
By-Laws of Miami International Securities Exchange, LLC, a Delaware
limited liability company (the ``Company''), pursuant to the Limited
Liability Company Agreement of the Company (as amended from time to
time, the ``LLC Agreement''), and, together with the LLC Agreement,
constitute the limited liability company agreement of the Company
within the meaning of the LLC Act (as defined in the LLC Agreement).
In the event of any inconsistency between the LLC Agreement and
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these By-Laws, the provision of the LLC Agreement shall control.
Finally, the Exchange proposes to make technical and conforming
changes to time and date of effectiveness on the signature pages of
each of the Certificate of Formation, LLC Agreement and By-Laws. The
Exchange also proposes to amend the signature line of the LLC Agreement
to insert the full title of the signatory as ``Thomas P. Gallagher,
Chairman and Chief Executive Officer.''
2. Statutory Basis
The Exchange believes the proposed rule change is consistent with
the Act and the rules and regulations thereunder applicable to the
Exchange and, in particular, the requirements of Section 6(b) of the
Act.\14\ Specifically, the Exchange believes the proposed rule change
is consistent with the Section
[[Page 73320]]
6(b)(5) \15\ requirements that the rules of an exchange be designed to
prevent fraudulent and manipulative acts and practices, to promote just
and equitable principles of trade, to foster cooperation and
coordination with persons engaged in regulating, clearing, settling,
processing information with respect to, and facilitating transactions
in securities, to remove impediments to and perfect the mechanism of a
free and open market and a national market system, and, in general, to
protect investors and the public interest. Additionally, the Exchange
believes the proposed rule change is consistent with the Section
6(b)(5) \16\ requirement that the rules of an exchange not be designed
to permit unfair discrimination between customers, issuers, brokers, or
dealers.
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\14\ 15 U.S.C. 78f(b).
\15\ 15 U.S.C. 78f(b)(5).
\16\ Id.
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The Exchange believes that the proposed changes to the Certificate
of Formation, LLC Agreement and By-Laws are designed to prevent
fraudulent and manipulative acts and practices, promote just and
equitable principles of trade, foster cooperation and coordination with
persons engaged in regulating, clearing, settling, processing
information with respect to, and facilitating transactions in
securities, remove impediments to and perfect the mechanism of a free
and open market and a national market system, and, in general, protect
investors and the public interest. The Exchange believes that the
proposed changes are non-substantive, administrative changes and will
reduce potential investor or market participant confusion regarding the
Exchange's corporate documents. Further, the Exchange believes the
proposed changes are not material and will have no impact on the
governance, ownership, or operations of the Exchange.
The Exchange believes its proposal to amend the Certificate of
Formation, LLC Agreement and By-Laws are consistent with the Act as the
changes are to maintain accurate information regarding, among other
things, the Exchange's address, registered agent and registered office.
B. Self-Regulatory Organization's Statement on Burden on Competition
The Exchange does not believe that the proposed rule change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Act. The Exchange does not
believe the proposed rule change will impose any burden on intra-market
and inter-market competition that is not necessary or appropriate in
furtherance of the purposes of the Act because the proposed changes are
not intended to address competitive issues but rather are
administrative, non-substantive changes that are concerned solely with
updating the Certificate of Formation, LLC Agreement and By-Laws to
reflect current, accurate information.
C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others
Written comments were neither solicited nor received.
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
Because the foregoing proposed rule change does not: (i)
Significantly affect the protection of investors or the public
interest; (ii) impose any significant burden on competition; and (iii)
become operative for 30 days from the date on which it was filed, or
such shorter time as the Commission may designate, it has become
effective pursuant to Section 19(b)(3)(A) of the Act \17\ and Rule 19b-
4(f)(6) thereunder.\18\
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\17\ 15 U.S.C. 78s(b)(3)(A).
\18\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)(iii)
requires a self-regulatory organization to give the Commission
written notice of its intent to file the proposed rule change, along
with a brief description and text of the proposed rule change, at
least five business days prior to the date of filing of the proposed
rule change, or such shorter time as designated by the Commission.
The Exchange has satisfied this requirement.
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A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the
Act \19\ normally does not become operative for 30 days after the date
of its filing. However, Rule 19b-4(f)(6)(iii) \20\ permits the
Commission to designate a shorter time if such action is consistent
with the protection of investors and the public interest. The Exchange
has requested that the Commission waive the 30-day operative delay. As
the proposed rule change raises no novel issues and promotes accuracy
and consistency within the Exchange's Certificate of Formation, LLC
Agreement, and By-Laws, the Commission believes that waiver of the 30-
day operative delay is consistent with the protection of investors and
the public interest. Accordingly, the Commission hereby waives the
operative delay and designates the proposed rule change operative upon
filing.\21\
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\19\ 17 CFR 240.19b-4(f)(6).
\20\ 17 CFR 240.19b-4(f)(6)(iii).
\21\ For purposes only of waiving the 30-day operative delay,
the Commission also has considered the proposed rule's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
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At any time within 60 days of the filing of the proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act. If the Commission
takes such action, the Commission shall institute proceedings to
determine whether the proposed rule change should be approved or
disapproved.
IV. Solicitation of Comments
Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:
Electronic Comments
Use the Commission's internet comment form (https://www.sec.gov/rules/sro.shtml); or
Send an email to [email protected]. Please include
File Number SR-MIAX-2020-35 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-MIAX-2020-35. 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 (https://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
[[Page 73321]]
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-MIAX-2020-35, and should be submitted on
or before December 8, 2020.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\22\
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\22\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020-25264 Filed 11-16-20; 8:45 am]
BILLING CODE 8011-01-P
