[Federal Register Volume 85, Number 130 (Tuesday, July 7, 2020)]
[Notices]
[Pages 40699-40709]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-14490]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-89192; File No. SR-NYSEArca-2019-96]
Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing
of Amendment No. 5 and Order Granting Accelerated Approval of a
Proposed Rule Change, as Modified by Amendment No. 5, To List and Trade
Two Series of Active Proxy Portfolio Shares Issued by the American
Century ETF Trust Under NYSE Arca Rule 8.601-E
June 30, 2020.
I. Introduction
On December 23, 2019, NYSE Arca, Inc. (``NYSE Arca'' or
``Exchange'') 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 list and trade shares (``Shares'') of the
following under NYSE Arca Rule 8.601-E (Active Proxy Portfolio Shares):
American Century Mid Cap Growth Impact ETF and American Century
Sustainable Equity ETF (``Funds'').\3\ The proposed rule change was
published for comment in the Federal Register on January 3, 2020.\4\
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\1\ 15 U.S.C.78s(b)(1).
\2\ 17 CFR 240.19b-4.
\3\ The Exchange originally proposed to adopt NYSE Arca Rule
8.602-E to permit the Exchange to list and trade Actively Managed
Solution Shares, and to list and trade Shares of the Funds under
proposed Exchange Rule 8.602-E. In Amendment No. 2, the Exchange
removed the proposal to adopt proposed NYSE Arca Rule 8.602-E and
revised the proposal to seek to list and trade Shares of the Funds
under proposed NYSE Arca Rule 8.601-E (Active Proxy Portfolio
Shares). See Amendment No. 2, infra note 7. See also Amendment No. 6
to SR-NYSEArca-2019-95 (proposing to adopt NYSE Arca Rule 8.601-E to
list and trade Active Proxy Portfolio Shares, available on the
Commission's website at https://www.sec.gov/comments/sr-nysearca-2019-95/srnysearca201995-7329866-218548.pdf. The Commission recently
approved the Exchange's proposed rule change to adopt NYSE Arca Rule
8.601-E to permit the listing and trading of Active Proxy Portfolio
Shares. See Securities Exchange Act Release No. 89185 (June 29,
2020) (SR-NYSEArca-2019-95) (``Active Proxy Portfolio Shares
Order'').
\4\ See Securities Exchange Act Release No. 87867 (Dec. 30,
2019), 85 FR 394.
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On February 13, 2020, pursuant to Section 19(b)(2) of the Act,\5\
the Commission designated a longer period within which to approve the
proposed rule change, disapprove the proposed rule change, or institute
proceedings to determine whether to disapprove the proposed rule
change.\6\ On March 31, 2020, the Exchange filed Amendment No. 2 to the
proposed rule change, which replaced and superseded the proposed rule
change as originally filed.\7\ On April 1, 2020, the Commission
published Amendment No. 2 for notice and comment and instituted
proceedings under Section 19(b)(2)(B) of the Act \8\ to determine
whether to approve or disapprove the proposed rule change.\9\ On May
20, 2020, the Exchange filed Amendment No. 3 to the proposed rule
change, which replaced and superseded the proposed rule change, as
amended by Amendment No. 2.\10\ On June 15, 2020, the Exchange filed
Amendment No. 4 to the proposed rule change, which replaced and
superseded the proposed rule change, as amended by Amendment No. 3.\11\
On June 19, 2020, the Exchange filed Amendment No. 5 to the proposed
rule change, which replaced and superseded the proposed rule change, as
amended by Amendment No. 4.\12\ The Commission has received no comments
on the proposed rule change. The Commission is publishing this notice
to solicit comments on the proposed rule change, as modified by
Amendment No. 5, from interested persons and is approving the proposed
rule change, as modified by Amendment No. 5, on an accelerated basis.
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\5\ 15 U.S.C. 78s(b)(2).
\6\ See Securities Exchange Act Release No. 88198, 85 FR 9833
(Feb. 20, 2020). The Commission designated April 2, 2020, as the
date by which the Commission shall approve or disapprove, or
institute proceedings to determine whether to disapprove, the
proposed rule change.
\7\ Amendment No. 1 to the proposed rule change was filed on
March 30, 2020 and subsequently withdrawn on March 31, 2020.
Amendment No. 2 is available on the Commission's website at https://www.sec.gov/comments/sr-nysearca-2019-96/srnysearca201996-7015541-214976.pdf.
\8\ 15 U.S.C. 78s(b)(2)(B).
\9\ See Securities Exchange Act Release No. 88534, 85 FR 19519
(April 7, 2020).
\10\ Amendment No. 3 is available on the Commission's website at
https://www.sec.gov/comments/sr-nysearca-2019-96/srnysearca201996-7220746-216947.pdf.
\11\ Amendment No. 4 is available on the Commission's website at
https://www.sec.gov/comments/sr-nysearca-2019-96/srnysearca201996-7316464-218309.pdf.
\12\ Amendment No. 5 is available on the Commission's website at
https://www.sec.gov/comments/sr-nysearca-2019-96/srnysearca201996-7329865-218547.pdf.
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II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change, as Modified by Amendment
No. 5
In its filing with the Commission, the self-regulatory organization
included statements concerning the purpose of, and basis for, the
proposed rule change and discussed any comments it received on the
proposed rule change. The text of those statements may be examined at
the places specified in Item IV below. The Exchange has prepared
summaries, set forth in sections A, B, and C below, of the most
significant parts of such statements.
A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
1. Purpose
The Exchange has proposed to add new NYSE Arca Rule 8.601-E for the
purpose of permitting the listing and trading, or trading pursuant to
unlisted trading privileges (``UTP''), of Active Proxy Portfolio
Shares, which are securities issued by an actively managed open-end
investment management company.\13\ Proposed Commentary .01
[[Page 40700]]
to Rule 8.601-E would require the Exchange to file separate proposals
under Section 19(b) of the Act before listing and trading any series of
Active Proxy Portfolio Shares on the Exchange. Therefore, the Exchange
is submitting this proposal in order to list and trade shares
(``Shares'') of Active Proxy Portfolio Shares of the American Century
Mid Cap Growth Impact ETF and American Century Sustainable Equity ETF
(each a ``Fund'' and, collectively, the ``Funds'') under proposed Rule
8.601-E.
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\13\ See Amendment 6 to SR-NYSEArca-2019-95, filed on June 19,
2020. See also, Securities Exchange Act Release No. 87866 (December
30, 2019), 85 FR 357 (January 3, 2020) (SR-NYSEArca-2019-95).
Proposed Rule 8.601-E(c)(1) provides that ``[t]he term ``Active
Proxy Portfolio Share'' means a security that (a) is issued by a
investment company registered under the Investment Company Act of
1940 (``Investment Company'') organized as an open-end management
investment company that invests in a portfolio of securities
selected by the Investment Company's investment adviser consistent
with the Investment Company's investment objectives and policies;
(b) is issued in a specified minimum number of shares, or multiples
thereof, in return for a deposit by the purchaser of the Proxy
Portfolio and/or cash with a value equal to the next determined net
asset value (``NAV''); (c) when aggregated in the same specified
minimum number of Active Proxy Portfolio Shares, or multiples
thereof, may be redeemed at a holder's request in return for the
Proxy Portfolio and/or cash to the holder by the issuer with a value
equal to the next determined NAV; and (d) the portfolio holdings for
which are disclosed within at least 60 days following the end of
every fiscal quarter.'' Proposed Rule 8.601-E(c)(2) provides that
``[t]he term ``Actual Portfolio'' means the identities and
quantities of the securities and other assets held by the Investment
Company that shall form the basis for the Investment Company's
calculation of NAV at the end of the business day.'' Proposed Rule
8.601-E(c)(3) provides that ``[t{time} he term ``Proxy Portfolio''
means a specified portfolio of securities, other financial
instruments and/or cash designed to track closely the daily
performance of the Actual Portfolio of a series of Active Proxy
Portfolio Shares as provided in the exemptive relief pursuant to the
Investment Company Act of 1940 applicable to such series.''
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Key Features of Active Proxy Portfolio Shares
While funds issuing Active Proxy Portfolio Shares will be actively-
managed and, to that extent, will be similar to Managed Fund Shares,
Active Proxy Portfolio Shares differ from Managed Fund Shares in the
following important respects. First, in contrast to Managed Fund
Shares, which are actively-managed funds listed and traded under NYSE
Arca Rule 8.600-E \14\ and for which a ``Disclosed Portfolio'' is
required to be disseminated at least once daily,\15\ the portfolio for
an issue of Active Proxy Portfolio Shares will be publicly disclosed
within at least 60 days following the end of every fiscal quarter in
accordance with normal disclosure requirements otherwise applicable to
open-end management investment companies registered under the 1940
Act.\16\ The composition of the portfolio of an issue of Active Proxy
Portfolio Shares would not be available at commencement of Exchange
listing and trading. Second, in connection with the creation and
redemption of Active Proxy Portfolio Shares, such creation or
redemption may be exchanged for a Proxy Portfolio with a value equal to
the next-determined NAV.
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\14\ The Commission has previously approved listing and trading
on the Exchange of a number of issues of Managed Fund Shares under
NYSE Arca Rule 8.600-E. See, e.g., Securities Exchange Act Release
Nos. 57801 (May 8, 2008), 73 FR 27878 (May 14, 2008) (SR-NYSEArca-
2008-31) (order approving Exchange listing and trading of twelve
actively-managed funds of the WisdomTree Trust); 60460 (August 7,
2009), 74 FR 41468 (August 17, 2009) (SR-NYSEArca-2009-55) (order
approving listing of Dent Tactical ETF); 63076 (October 12, 2010),
75 FR 63874 (October 18, 2010) (SR-NYSEArca-2010-79) (order
approving Exchange listing and trading of Cambria Global Tactical
ETF); 63802 (January 31, 2011), 76 FR 6503 (February 4, 2011) (SR-
NYSEArca-2010-118) (order approving Exchange listing and trading of
the SiM Dynamic Allocation Diversified Income ETF and SiM Dynamic
Allocation Growth Income ETF). The Commission also has approved a
proposed rule change relating to generic listing standards for
Managed Fund Shares. See Securities Exchange Act Release No. 78397
(July 22, 2016), 81 FR 49320 (July 27, 2016 (SR-NYSEArca-2015-110)
(amending NYSE Arca Equities Rule 8.600 to adopt generic listing
standards for Managed Fund Shares).
\15\ NYSE Arca Rule 8.600-E(c)(2) defines the term ``Disclosed
Portfolio'' as the identities and quantities of the securities and
other assets held by the Investment Company that will form the basis
for the Investment Company's calculation of net asset value at the
end of the business day. NYSE Arca Rule 8.600-E(d)(2)(B)(i) requires
that the Disclosed Portfolio will be disseminated at least once
daily and will be made available to all market participants at the
same time.
\16\ A mutual fund is required to file with the Commission its
complete portfolio schedules for the second and fourth fiscal
quarters on Form N-CSR under the 1940 Act. Information reported on
Form N-PORT for the third month of a fund's fiscal quarter will be
made publicly available 60 days after the end of a fund's fiscal
quarter. Form N-PORT requires reporting of a fund's complete
portfolio holdings on a position-by-position basis on a quarterly
basis within 60 days after fiscal quarter end. Investors can obtain
a series of Active Proxy Portfolio Shares' Statement of Additional
Information (``SAI''), its Shareholder Reports, its Form N-CSR,
filed twice a year, and its Form N-CEN, filed annually. A series of
Active Proxy Portfolio Shares' SAI and Shareholder Reports will be
available free upon request from the Investment Company, and those
documents and the Form N-PORT, Form N-CSR, and Form N-CEN may be
viewed on-screen or downloaded from the Commission's website at
www.sec.gov.
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A series of Active Proxy Portfolio Shares will disclose the Proxy
Portfolio on a daily basis, which, as described above, is designed to
track closely the daily performance of the Actual Portfolio of a series
of Active Proxy Portfolio Shares, instead of the actual holdings of the
Investment Company, as provided by a series of Managed Fund Shares.
In this regard, with respect to the Funds, the Funds will utilize a
proxy portfolio methodology--the ``NYSE Proxy Portfolio Methodology''--
that would allow market participants to assess the intraday value and
associated risk of a Fund's Actual Portfolio and thereby facilitate the
purchase and sale of Shares by investors in the secondary market at
prices that do not vary materially from their NAV.\17\ The NYSE Proxy
Portfolio Methodology would utilize creation of a Proxy Portfolio for
hedging and arbitrage purposes.
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\17\ The NYSE Proxy Portfolio Methodology is owned by the NYSE
Group, Inc. and licensed for use by the Funds. NYSE Group, Inc. is
not affiliated with the Funds, Adviser or Distributor. Not all
series of Active Proxy Portfolio Shares will utilize the NYSE Proxy
Portfolio Methodology.
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The Exchange, after consulting with various Lead Market Makers
(``LMMs'') that trade exchange-traded funds (``ETFs'') on the
Exchange,\18\ believes that market makers will be able to make
efficient and liquid markets priced near the ETF's intraday value, and
market makers employ market making techniques such as ``statistical
arbitrage,'' including correlation hedging, beta hedging, and
dispersion trading, which is currently used throughout the financial
services industry, to make efficient markets in exchange-traded
products.\19\ For Active Proxy Portfolio Shares, market makers may use
the knowledge of a fund's means of achieving its investment objective,
as described in the applicable fund registration statement, as well as
a fund's disclosed Proxy Portfolio, to construct a hedging proxy for a
fund to manage a market maker's quoting risk in connection with trading
fund shares. Market makers can then conduct statistical arbitrage
between their hedging proxy and shares of a fund, buying and selling
one against the other over the course of the trading day. This ability
should permit market makers to make efficient markets in an issue of
Active Proxy Portfolio Shares without precise knowledge of a fund's
underlying portfolio. This is similar to certain other existing
exchange-traded products (for example, ETFs that invest
[[Page 40701]]
in foreign securities that do not trade during U.S. trading hours), in
which spreads may be generally wider in the early days of trading and
then narrow as market makers gain more confidence in their real-time
hedges.
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\18\ The term ``Lead Market Maker'' is defined in Rule 1.1(w) to
mean a registered Market Maker that is the exclusive Designated
Market Maker in listings for which the Exchange is the primary
market.
\19\ Statistical arbitrage enables a trader to construct an
accurate proxy for another instrument, allowing it to hedge the
other instrument or buy or sell the instrument when it is cheap or
expensive in relation to the proxy. Statistical analysis permits
traders to discover correlations based purely on trading data
without regard to other fundamental drivers. These correlations are
a function of differentials, over time, between one instrument or
group of instruments and one or more other instruments. Once the
nature of these price deviations have been quantified, a universe of
securities is searched in an effort to, in the case of a hedging
strategy, minimize the differential. Once a suitable hedging proxy
has been identified, a trader can minimize portfolio risk by
executing the hedging basket. The trader then can monitor the
performance of this hedge throughout the trade period making
corrections where warranted. In the case of correlation hedging, the
analysis seeks to find a proxy that matches the pricing behavior of
a fund. In the case of beta hedging, the analysis seeks to determine
the relationship between the price movement over time of a fund and
that of another stock. Dispersion trading is a hedged strategy
designed to take advantage of relative value differences in implied
volatilities between an index and the component stocks of that
index. Such trading strategies will allow market participants to
engage in arbitrage between series of Active Proxy Portfolio Shares
and other instruments, both through the creation and redemption
process and strictly through arbitrage without such processes.
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Description of the Funds and the Trust
The Funds will be series of the American Century ETF Trust
(``Trust''), which will be registered with the Commission as an open-
end management investment company.\20\
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\20\ The Trust is registered under the 1940 Act. On April 6,
2020, the Trust filed a registration statement on Form N-1A under
the Securities Act of 1933 and the 1940 Act for the Funds (File Nos.
333-221045 and 811-23305) (``Registration Statement''). The Trust
also filed an application for an order under Section 6(c) of the
1940 Act for exemptions from various provisions of the 1940 Act and
rules thereunder (File No. 812-15082), dated December 11, 2019
(``American Century Application'' or ``Application''). On May 12,
2020, the Commission issued an order granting the exemptions
requested in the Application (Investment Company Act Release No.
33862 (May 12, 2020) (``American Century Exemptive Order'' or
``Exemptive Order''). The American Century Application states that
the exemptive relief requested by the Trust will apply to funds of
the Trust that comply with the terms and conditions of the American
Century Exemptive Order and the order issued to Natixis ETF Trust
II. With respect to the Natixis ETF Trust II, see Seventh Amended
and Restated Application for an Order under Section 6(c) of the 1940
Act for exemptions from various provisions of the 1940 Act and rules
thereunder (File No. 812-14870) (October 21, 2019 (``Natixis
Application''); the Commission notice regarding the Natixis
Application (Investment Company Release No. 33684 (File No. 812-
14870) November 14, 2019); and the Commission order under the 1940
Act granting the exemptions requested in the Natixis Application
(Investment Company Act Release No. 33711 (December 10, 2019))
(``Natixis Exemptive Order''). The American Century Application
incorporates the Natixis Exemptive Order by reference. Investments
made by the Funds will comply with the conditions set forth in the
American Century Application, American Century Exemptive Order and
Natixis Exemptive Order. The description of the operation of the
Trust and the Funds herein is based, in part, on the Registration
Statement and the American Century Application.
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American Century Investment Management, Inc. (``Adviser'') will be
the investment adviser to the Funds. Foreside Fund Services, LLC will
act as the distributor and principal underwriter (``Distributor'') for
the Funds. State Street Bank and Trust Company will serve as transfer
agent (``Transfer Agent'') for the Funds.
Proposed Commentary.04 provides that, if the investment adviser to
the Investment Company issuing Active Proxy Portfolio Shares is
registered as a broker-dealer or is affiliated with a broker-dealer,
such investment adviser will erect and maintain a ``fire wall'' between
the investment adviser and personnel of the broker-dealer or broker-
dealer affiliate, as applicable, with respect to access to information
concerning the composition and/or changes to such Investment Company's
Actual Portfolio and/or Proxy Portfolio.\21\ Any person related to the
investment adviser or Investment Company who makes decisions pertaining
to the Investment Company's Actual Portfolio and/or Proxy Portfolio or
has access to non-public information regarding the Investment Company's
Actual Portfolio and/or Proxy Portfolio or changes thereto must be
subject to procedures reasonably designed to prevent the use and
dissemination of material non-public information regarding the Actual
Portfolio and/or Proxy Portfolio or changes thereto. Proposed
Commentary .04 is similar to Commentary .03(a)(i) and (iii) to NYSE
Arca Rule 5.2-E(j)(3); however, proposed Commentary .04, in connection
with the establishment of a ``fire wall'' between the investment
adviser and the broker-dealer, reflects the applicable open-end fund's
portfolio, not an underlying benchmark index, as is the case with
index-based funds.\22\ Proposed Commentary .04 is also similar to
Commentary .06 to Rule 8.600-E related to Managed Fund Shares, except
that proposed Commentary .04 relates to establishment and maintenance
of a ``fire wall'' between the investment adviser and personnel of the
broker-dealer or broker-dealer affiliate, as applicable, applicable to
an Investment Company's Actual Portfolio and/or Proxy Portfolio or
changes thereto, and not just to the underlying portfolio, as is the
case with Managed Fund Shares.
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\21\ The text of proposed Commentary .04 to NYSE Arca Rule
8.601-E is included in Amendment 6 to SR-NYSEArca-2019-95. See note
13, supra.
\22\ An investment adviser to an open-end fund is required to be
registered under the Investment Advisers Act of 1940 (the ``Advisers
Act''). As a result, the Adviser and its related personnel will be
subject to the provisions of Rule 204A-1 under the Advisers Act
relating to codes of ethics. This Rule requires investment advisers
to adopt a code of ethics that reflects the fiduciary nature of the
relationship to clients as well as compliance with other applicable
securities laws. Accordingly, procedures designed to prevent the
communication and misuse of non-public information by an investment
adviser must be consistent with Rule 204A-1 under the Advisers Act.
In addition, Rule 206(4)-7 under the Advisers Act makes it unlawful
for an investment adviser to provide investment advice to clients
unless such investment adviser has (i) adopted and implemented
written policies and procedures reasonably designed to prevent
violations, by the investment adviser and its supervised persons, of
the Advisers Act and the Commission rules adopted thereunder; (ii)
implemented, at a minimum, an annual review regarding the adequacy
of the policies and procedures established pursuant to subparagraph
(i) above and the effectiveness of their implementation; and (iii)
designated an individual (who is a supervised person) responsible
for administering the policies and procedures adopted under
subparagraph (i) above.
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In addition, proposed Commentary.05 provides that any person or
entity, including a custodian, Reporting Authority, distributor, or
administrator, who has access to non-public information regarding the
Investment Company's Actual Portfolio or the Proxy Portfolio or changes
thereto, must be subject to procedures reasonably designed to prevent
the use and dissemination of material non-public information regarding
the applicable Investment Company Actual Portfolio or the Proxy
Portfolio or changes thereto. Moreover, if any such person or entity is
registered as a broker-dealer or affiliated with a broker-dealer, such
person or entity will erect and maintain a ``fire wall'' between the
person or entity and the broker-dealer with respect to access to
information concerning the composition and/or changes to such
Investment Company Actual Portfolio or Proxy Portfolio.
The Adviser is not registered as a broker-dealer but is affiliated
with a broker-dealer. The Adviser has implemented and will maintain a
``fire wall'' with respect to such broker-dealer affiliate regarding
access to information concerning the composition of and/or changes to a
Fund's Actual Portfolio or Proxy Portfolio.
In the event (a) the Adviser becomes registered as a broker-dealer
or becomes newly affiliated with a broker-dealer, or (b) any new
adviser or sub-adviser is a registered broker-dealer, or becomes
affiliated with a broker-dealer, it will implement and maintain a fire
wall with respect to its relevant personnel or its broker-dealer
affiliate regarding access to information concerning the composition
and/or changes to a Fund's Actual Portfolio and/or Proxy Portfolio, and
will be subject to procedures designed to prevent the use and
dissemination of material non-public information regarding a Fund's
Actual Portfolio and/or Proxy Portfolio or changes thereto. Any person
related to the Adviser or a Fund who makes decisions pertaining to the
Fund's Actual Portfolio and/or the Proxy Portfolio or has access to
non-public information regarding a Fund's Actual Portfolio and/or the
Proxy Portfolio or changes thereto are subject to procedures reasonably
designed to prevent the use and dissemination of material non-public
information regarding a Fund's Actual Portfolio and/or the Proxy
Portfolio or changes thereto.
In addition, any person or entity, including any service provider
for a Fund, who has access to non-public
[[Page 40702]]
information regarding a Fund's Actual Portfolio or the Proxy Portfolio
or changes thereto, will be subject to procedures reasonably designed
to prevent the use and dissemination of material non-public information
regarding a Fund's Actual Portfolio and/or the Proxy Portfolio or
changes thereto. Moreover, if any such person or entity is registered
as a broker-dealer or affiliated with a broker-dealer, such person or
entity has erected and will maintain a ``fire wall'' between the person
or entity and the broker-dealer with respect to access to information
concerning the composition and/or changes to a Fund's Actual Portfolio
and/or Proxy Portfolio.
The Funds
According to the Application, the Adviser believes a Fund would
allow for efficient trading of Shares through an effective Fund
portfolio transparency substitute and publication of related
information metrics, while still shielding the identity of the full
Fund portfolio contents to protect a Fund's performance-seeking
strategies. Even though a Fund would not publish its full portfolio
contents daily, the Adviser believes that the NYSE Proxy Portfolio
Methodology would allow market participants to assess the intraday
value and associated risk of a Fund's Actual Portfolio. As a result,
the Adviser believes that investors would be able to purchase and sell
Shares in the secondary market at prices that are close to their NAV.
In this regard, the Funds will utilize a proxy portfolio
methodology--the ``NYSE Proxy Portfolio Methodology''--that would allow
market participants to assess the intraday value and associated risk of
a Fund's Actual Portfolio and thereby facilitate the purchase and sale
of Shares of a Fund by investors in the secondary market at prices that
do not vary materially from their NAV.\23\ The NYSE Proxy Portfolio
Methodology would utilize creation of a Proxy Portfolio for hedging and
arbitrage purposes.
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\23\ The NYSE Proxy Portfolio Methodology is owned by the NYSE
Group, Inc. and licensed for use by the Funds. NYSE Group, Inc. is
not affiliated with the Funds, Adviser or Distributor. Not all
series of Active Proxy Portfolio Shares will utilize the NYSE Proxy
Portfolio Methodology.
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Each Fund's holdings will conform to the permissible investments as
set forth in the American Century Application and American Century
Exemptive Order and the holdings will be consistent with all
requirements in the American Century Application and American Century
Exemptive Order.\24\ Any foreign common stocks held by a Fund will be
traded on an exchange that is a member of the Intermarket Surveillance
Group (``ISG'') or with which the Exchange has in place a comprehensive
surveillance sharing agreement.
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\24\ Pursuant to the American Century Application and American
Century Exemptive Order, the permissible investments for a Fund are
only the following: ETFs traded on a U.S. exchange; exchange-traded
notes (``ETNs'') traded on a U.S. exchange; U.S. exchange-traded
common stocks; common stocks listed on a foreign exchange that trade
on such exchange contemporaneously with the Shares (``foreign common
stocks'') in the Exchange's Core Trading Session (normally 9:30 a.m.
and 4:00 p.m. Eastern time (``E.T.'')); U.S. exchange-traded
preferred stocks; U.S. exchange-traded American Depositary Receipts
(``ADRs''); U.S. exchange-traded real estate investment trusts; U.S.
exchange-traded commodity pools; U.S. exchange-traded metals trusts;
U.S. exchange-traded currency trusts; and U.S. exchange-traded
futures that trade contemporaneously with a Fund's Shares. In
addition, a Fund may hold cash and cash equivalents (short-term U.S.
Treasury securities, government money market funds, and repurchase
agreements). Pursuant to the Application and Exemptive Order, the
Funds will not hold short positions or invest in derivatives other
than U.S. exchange-traded futures will not borrow for investment
purposes, and will not purchase any securities that are illiquid
investments at the time of purchase.
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American Century Mid Cap Growth Impact ETF
According to the Registration Statement, the Fund will seek long-
term capital growth. The Fund, under normal market conditions,\25\ will
invest principally in exchange-traded common stocks and will invest at
least 80% of its assets in securities of medium capitalization
companies.
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\25\ The term ``normal market conditions'' is defined in
proposed Rule 8.601-E(c)(6), which states as follows: The term
``normal market conditions'' includes, but is not limited to, the
absence of trading halts in the applicable financial markets
generally; operational issues (e.g., systems failure) causing
dissemination of inaccurate market information; or force majeure
type events such as natural or manmade disaster, act of God, armed
conflict, act of terrorism, riot or labor disruption or any similar
intervening circumstance.
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American Century Sustainable Equity ETF
According to the Registration Statement, the Fund will seek long-
term capital growth. The Fund, under normal market conditions, will
invest at least 80% of its assets in equity securities. The Fund will
invest principally in exchange-traded common stocks.
Creations and Redemptions of Shares
According to the Registration Statement, the Trust will offer,
issue and sell Shares of the Funds to investors only in specified
minimum size ``Creation Units'' through the Distributor on a continuous
basis at the NAV per Share next determined after an order in proper
form is received. The NAV of a Fund is expected to be determined as of
4:00 p.m. E.T. on each ``Business Day.'' \26\ The ``Creation Basket''
(as defined below) for a Fund will be based on the Proxy Portfolio,
which is designed to approximate the value and performance of the
Actual Portfolio. All Creation Basket instruments will be valued in the
same manner as they are valued for purposes of calculating a Fund's
NAV, and such valuation will be made in the same manner regardless of
the identity of the purchaser or redeemer. Further, the total
consideration paid for the purchase or redemption of a Creation Unit of
Shares will be based on the NAV of such Fund, as calculated in
accordance with the policies and procedures set forth in its
Registration Statement.
---------------------------------------------------------------------------
\26\ A Business Day is any day on which the Exchange is open for
business.
---------------------------------------------------------------------------
The Trust will sell and redeem Creation Units of each Fund only on
a Business Day. Creation Units of the Funds may be purchased and/or
redeemed entirely for cash, as permissible under the procedures
described below.
In order to keep costs low and permit each Fund to be as fully
invested as possible, Shares will be purchased and redeemed in Creation
Units and generally on an in-kind basis. Accordingly, except where the
purchase or redemption will include cash under the circumstances
specified below, purchasers will be required to purchase Creation Units
by making an in-kind deposit of specified instruments (``Deposit
Instruments''), and shareholders redeeming their Shares will receive an
in-kind transfer of specified instruments (``Redemption Instruments'').
The names and quantities of the instruments that constitute the Deposit
Instruments and the Redemption Instruments for a Fund (collectively,
the ``Creation Basket'') will be the same as a Fund's Proxy Portfolio,
except to the extent purchases and redemptions are made entirely or in
part on a cash basis.\27\
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\27\ The Adviser represents that, to the extent that a Fund
allows creations and redemptions to be conducted in cash, such
transactions will be effected in the same manner for all Authorized
Participants transacting in cash.
---------------------------------------------------------------------------
If there is a difference between the NAV attributable to a Creation
Unit and the aggregate market value of the Creation Basket exchanged
for the Creation Unit, the party conveying instruments with the lower
value will also pay to the other an amount in cash equal to that
difference (the ``Cash Amount'').
[[Page 40703]]
Each Fund will adopt and implement policies and procedures
regarding the composition of its Creation Baskets. The policies and
procedures will set forth detailed parameters for the construction and
acceptance of baskets in compliance with the terms and conditions of
the American Century Exemptive Order and that are in the best interests
of a Fund and its shareholders, including the process for any revisions
to or deviations from those parameters.
A Fund that normally issues and redeems Creation Units in kind may
require purchases and redemptions to be made entirely or in part on a
cash basis. In such an instance, a Fund will announce, before the open
of trading in the Core Trading Session (normally, 9:30 a.m. to 4:00
p.m., E.T.) on a given Business Day, that all purchases, all
redemptions, or all purchases and redemptions on that day will be made
wholly or partly in cash. A Fund may also determine, upon receiving a
purchase or redemption order from an Authorized Participant, to have
the purchase or redemption, as applicable, be made entirely or in part
in cash. Each Business Day, before the open of trading on the Exchange,
a Fund will cause to be published through the National Securities
Clearing Corporation (``NSCC'') the names and quantities of the
instruments comprising the Creation Basket, as well as the estimated
Cash Amount (if any), for that day. The published Creation Basket will
apply until a new Creation Basket is announced on the following
Business Day, and there will be no intra-day changes to the Creation
Basket except to correct errors in the published Creation Basket.
All orders to purchase Creation Units must be placed with the
Distributor by or through an Authorized Participant, which is either:
(1) A ``participating party'' (i.e., a broker or other participant), in
the Continuous Net Settlement (``CNS'') System of the NSCC, a clearing
agency registered with the Commission and affiliated with the
Depository Trust Company (``DTC''), or (2) a DTC Participant, which in
any case has executed a participant agreement with the Distributor and
the Transfer Agent.
Timing and Transmission of Purchase Orders
All orders to purchase (or redeem) Creation Units, whether using
the NSCC Process or the DTC Process, must be received by the
Distributor no later than the NAV calculation time (``NAV Calculation
Time''), generally 4:00 p.m. E.T. on the date the order is placed
(``Transmittal Date'') in order for the purchaser (or redeemer) to
receive the NAV determined on the Transmittal Date.
Daily Disclosures
With respect to the Funds, the following information will comprise
the ``Proxy Portfolio Disclosures'' and, pursuant to the American
Century Application and Exemptive Order, will be publicly available on
the Funds' website (www.americancenturyetfs.com) before the
commencement of trading in Shares on each Business Day:
The Proxy Portfolio holdings (including the identity and
quantity of investments in the Proxy Portfolio) will be publicly
available on the Funds' website before the commencement of trading in
Shares on each Business Day.
The historical ``Tracking Error'' between a Fund's last
published NAV per share and the value, on a per Share basis, of a
Fund's Proxy Portfolio calculated as of the close of trading on the
prior Business Day will be publicly available on the Funds' website
before the commencement of trading in Shares each Business Day.
The ``Proxy Overlap'' will be publicly available on the
Funds' website before the commencement of trading in Shares on each
Business Day. The Proxy Overlap is the percentage weight overlap
between the Proxy Portfolio's holdings compared to the Actual
Portfolio's holdings that formed the basis for a Fund's calculation of
NAV at the end of the prior Business Day. The Proxy Overlap will be
calculated by taking the lesser weight of each asset held in common
between the Actual Portfolio and the Proxy Portfolio and adding the
totals.
Availability of Information
The Funds' website (www.americancenturyetfs.com), which will be
publicly available prior to the public offering of Shares, will include
a form of the prospectus for each Fund that may be downloaded. The
Funds' website will include on a daily basis, per Share for each Fund,
the prior Business Day's NAV and the ``Closing Price'' or ``Bid/Ask
Price,'' \28\ and a calculation of the premium/discount of the Closing
Price or Bid/Ask Price against such NAV. The Adviser has represented
that the Funds' website will also provide: (1) Any other information
regarding premiums/discounts as may be required for other ETFs under
Rule 6c-11 under the 1940 Act, as amended, and (2) any information
regarding the bid/ask spread for a Fund as may be required for other
ETFs under Rule 6c-11 under the 1940 Act, as amended. The website and
information will be publicly available at no charge. Each Fund's
website also will disclose the information required under proposed Rule
8.601-E(c)(3).\29\ The Proxy Portfolio holdings for each Fund
(including the identity and quantity of investments in the Proxy
Portfolio) will be publicly available on the Funds' website before the
commencement of trading in Shares on each Business Day.
---------------------------------------------------------------------------
\28\ The records relating to Bid/Ask Prices will be retained by
the Funds or their service providers. The ``Bid/Ask Price'' is the
midpoint of the highest bid and lowest offer based upon the National
Best Bid and Offer as of the time of calculation of a Fund's NAV.
The ``National Best Bid and Offer'' is the current national best bid
and national best offer as disseminated by the Consolidated
Quotation System or UTP Plan Securities Information Processor. The
``Closing Price'' of Shares is the official closing price of the
Shares on the Exchange.
\29\ See note 13, supra. Proposed Rule 8.601-E (c)(3) provides
that the website for each series of Active Proxy Portfolio Shares
shall disclose the information regarding the Proxy Portfolio as
provided in the exemptive relief pursuant to the Investment Company
Act of 1940 applicable to such series, including the following, to
the extent applicable: (i) Ticker symbol; (ii) CUSIP or other
identifier; (iii) Description of holding; (iv) Quantity of each
security or other asset held; and (v) Percentage weighting of the
holding in the portfolio.
---------------------------------------------------------------------------
Typical mutual fund-style annual, semi-annual and quarterly
disclosures contained in the Funds' Commission filings will be provided
on the Funds' website on a current basis.\30\ Thus, each Fund will
publish the portfolio contents of its Actual Portfolio on a periodic
basis within at least 60 days following the end of every fiscal
quarter.
---------------------------------------------------------------------------
\30\ See note 16, supra.
---------------------------------------------------------------------------
Investors can also obtain a Fund's prospectus, SAI, Shareholder
Reports, Form N-CSR, N-PORT and Form N-CEN filed with the Commission.
The prospectus, SAI and Shareholder Reports are available free upon
request from the Trust, and those documents and the Form N-CSR, N-PORT,
and Form N-CEN may be viewed on-screen or downloaded from the
Commission's website. The Exchange also notes that pursuant to its
Exemptive Order, the issuer must comply with Regulation Fair
Disclosure, which prohibits selective disclosure of any material non-
public information.
Information regarding market price and trading volume of the Shares
will be continually available on a real-time basis throughout the day
on brokers' computer screens and other electronic services. Information
regarding the previous day's closing price and trading volume
information for the Shares will be published daily in the financial
section of newspapers.
Updated price information for U.S. exchange-listed equity
securities is available through major market data
[[Page 40704]]
vendors or securities exchanges trading such securities. Quotation and
last sale information for the Shares, ETFs, ETNs, U.S. exchange-traded
common stocks, preferred stocks and ADRs will be available via the
Consolidated Tape Association (``CTA'') high-speed line or from the
exchange on which such securities trade. Price information for futures,
foreign stocks and cash equivalents is available through major market
data vendors. Intraday pricing information for all constituents of the
Proxy Portfolio that are exchange-traded, which includes all eligible
instruments except cash and cash equivalents, will be available on the
exchanges on which they are traded and through subscription services.
Intraday pricing information for cash equivalents will be available
through subscription services and/or pricing services.
Investment Restrictions
The Shares of each Fund will conform to the initial and continued
listing criteria under proposed Rule 8.601-E. A Fund's holdings will be
limited to and consistent with permissible holdings as described in the
Application and all requirements in the Application and Exemptive
Order.\31\
---------------------------------------------------------------------------
\31\ See note 24, supra.
---------------------------------------------------------------------------
Each Fund's investments, including derivatives, will be consistent
with its investment objective and will not be used to enhance leverage
(although certain derivatives and other investments may result in
leverage). That is, a Fund's investments will not be used to seek
performance that is the multiple or inverse multiple (e.g., 2X or -3X)
of a Fund's primary broad-based securities benchmark index (as defined
in Form N-1A).\32\
---------------------------------------------------------------------------
\32\ A Fund's broad-based securities benchmark index will be
identified in a future amendment to the Registration Statement
following a Fund's first full calendar year of performance.
---------------------------------------------------------------------------
Trading Halts
With respect to trading halts, the Exchange may consider all
relevant factors in exercising its discretion to halt or suspend
trading in the Shares of a Fund.\33\ Trading in Shares of a Fund will
be halted if the circuit breaker parameters in NYSE Arca Rule 7.12-E
have been reached. Trading also may be halted because of market
conditions or for reasons that, in the view of the Exchange, make
trading in the Shares inadvisable. Trading in the Shares will be
subject to NYSE Arca Rule 8.601-E(d)(2)(D), which sets forth
circumstances under which Shares of a Fund will be halted.
---------------------------------------------------------------------------
\33\ See NYSE Arca Rule 7.12-E.
---------------------------------------------------------------------------
Specifically, proposed Rule 8.601-E(d)(2)(D) provides that the
Exchange may consider all relevant factors in exercising its discretion
to halt trading in a series of Active Proxy Portfolio Shares. Trading
may be halted because of market conditions or for reasons that, in the
view of the Exchange, make trading in the series of Active Proxy
Portfolio Shares inadvisable. These may include: (a) The extent to
which trading is not occurring in the securities and/or the financial
instruments composing the Proxy Portfolio and/or Actual Portfolio; or
(b) whether other unusual conditions or circumstances detrimental to
the maintenance of a fair and orderly market are present. If the
Exchange becomes aware that the NAV, Proxy Portfolio or Actual
Portfolio with respect to a series of Active Proxy Portfolio Shares is
not disseminated to all market participants at the same time, the
Exchange shall halt trading in such series until such time as the NAV,
Proxy Portfolio or Actual Portfolio is available to all market
participants at the same time.
Trading Rules
The Exchange deems the Shares to be equity securities, thus
rendering trading in the Shares subject to the Exchange's existing
rules governing the trading of equity securities. Shares will trade on
the NYSE Arca Marketplace in all trading sessions in accordance with
NYSE Arca Rule 7.34-E(a). As provided in NYSE Arca Rule 7.6-E, the
minimum price variation (``MPV'') for quoting and entry of orders in
equity securities traded on the NYSE Arca Marketplace is $0.01, with
the exception of securities that are priced less than $1.00 for which
the MPV for order entry is $0.0001.
The Shares will conform to the initial and continued listing
criteria under proposed NYSE Arca Rule 8.601-E. The Exchange has
appropriate rules to facilitate trading in the Shares during all
trading sessions.
A minimum of 100,000 Shares for each Fund will be outstanding at
the commencement of trading on the Exchange. In addition, pursuant to
proposed Rule 8.601-E(d)(1)(B), the Exchange, prior to commencement of
trading in the Shares, will obtain a representation from the issuer of
the Shares of each Fund that the NAV per Share will be calculated daily
and that the NAV, Proxy Portfolio and the Actual Portfolio for each
Fund will be made available to all market participants at the same
time.
With respect to Active Proxy Portfolio Shares, all of the Exchange
member obligations relating to product description and prospectus
delivery requirements will continue to apply in accordance with
Exchange rules and federal securities laws, and the Exchange and the
Financial Industry Regulatory Authority, Inc. (``FINRA'') will continue
to monitor Exchange members for compliance with such requirements.
Surveillance
The Exchange represents that trading in the Shares will be subject
to the existing trading surveillances, administered by the Exchange, as
well as cross-market surveillances administered by FINRA on behalf of
the Exchange, which are designed to detect violations of Exchange rules
and applicable federal securities laws.\34\ The Exchange represents
that these procedures are adequate to properly monitor Exchange trading
of the Shares in all trading sessions and to deter and detect
violations of Exchange rules and federal securities laws applicable to
trading on the Exchange.
---------------------------------------------------------------------------
\34\ FINRA conducts cross-market surveillances on behalf of the
Exchange pursuant to a regulatory services agreement. The Exchange
is responsible for FINRA's performance under this regulatory
services agreement.
---------------------------------------------------------------------------
The surveillances referred to above generally focus on detecting
securities trading outside their normal patterns, which could be
indicative of manipulative or other violative activity. When such
situations are detected, surveillance analysis follows and
investigations are opened, where appropriate, to review the behavior of
all relevant parties for all relevant trading violations.
The Exchange or FINRA, on behalf of the Exchange, or both, will
communicate as needed regarding trading in the Shares and underlying
exchange-traded instruments with other markets and other entities that
are members of the ISG, and the Exchange or FINRA, on behalf of the
Exchange, or both, may obtain trading information regarding trading the
Shares and exchange-traded instruments from such markets and other
entities. In addition, the Exchange may obtain information regarding
trading in the Shares and exchange-traded instruments from markets and
other entities that are members of ISG or with which the Exchange has
in place a comprehensive surveillance sharing agreement.\35\
---------------------------------------------------------------------------
\35\ For a list of the current members of ISG, see
www.isgportal.org.
---------------------------------------------------------------------------
The Adviser will make available daily to FINRA and the Exchange the
Actual Portfolio of the Funds, upon request, in order to facilitate the
performance of the surveillances referred to above.
[[Page 40705]]
In addition, the Exchange also has a general policy prohibiting the
distribution of material, non-public information by its employees.
Proposed Commentary .03 to NYSE Arca Rule 8.601-E provides that the
Exchange will implement and maintain written surveillance procedures
for Active Proxy Portfolio Shares. As part of these surveillance
procedures, the Investment Company's investment adviser will upon
request by the Exchange or FINRA, on behalf of the Exchange, make
available to the Exchange or FINRA the daily Actual Portfolio holdings
of each series of Active Proxy Portfolio Shares. The Exchange believes
that the ability to access the information on an as needed basis will
provide it with sufficient information to perform the necessary
regulatory functions associated with listing and trading series of
Active Proxy Portfolio Shares on the Exchange, including the ability to
monitor compliance with the initial and continued listing requirements
as well as the ability to surveil for manipulation of Active Proxy
Portfolio Shares.
The Exchange will utilize its existing procedures to monitor issuer
compliance with the requirements of proposed Rule 8.601-E. For example,
the Exchange will continue to use intraday alerts that will notify
Exchange personnel of trading activity throughout the day that may
indicate that unusual conditions or circumstances are present that
could be detrimental to the maintenance of a fair and orderly market.
The Exchange will require from the issuer of a series of Active Proxy
Portfolio Shares, upon initial listing and periodically thereafter, a
representation that it is in compliance with proposed Rule 8.601-E. The
Exchange notes that proposed Commentary .01 to Rule 8.601-E would
require an issuer of Active Proxy Portfolio Shares to notify the
Exchange of any failure to comply with the continued listing
requirements of proposed Rule 8.601-E. In addition, the Exchange will
require funds to represent that they will notify the Exchange of any
failure to comply with the terms of applicable exemptive and no-action
relief. As part of its surveillance procedures, the Exchange will rely
on the foregoing procedures to become aware of any non-compliance with
the requirements of proposed Rule 8.601-E.
With respect to the Funds, all statements and representations made
in this filing regarding (a) the description of the portfolio or
reference asset, (b) limitations on portfolio holdings or reference
assets, or (c) the applicability of Exchange listing rules specified in
this rule filing shall constitute continued listing requirements for
listing the Shares on the Exchange. The Exchange will obtain a
representation from the Adviser, prior to commencement of trading in
the Shares, that it will advise the Exchange of any failure by a Fund
to comply with the continued listing requirements, and, pursuant to its
obligations under Section 19(g)(1) of the Act, the Exchange will
monitor for compliance with the continued listing requirements. If a
Fund is not in compliance with the applicable listing requirements, the
Exchange will commence delisting procedures under NYSE Arca Rule 5.5-
E(m).
2. Statutory Basis
The Exchange believes that the proposed rule change is consistent
with Section 6(b) of the Act,\36\ in general, and furthers the
objectives of Section 6(b)(5) of the Act,\37\ in particular, in that it
is 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.
---------------------------------------------------------------------------
\36\ 15 U.S.C. 78f(b).
\37\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------
With respect to the proposed listing and trading of Shares of the
Funds, the Exchange believes that the proposed rule change is designed
to prevent fraudulent and manipulative acts and practices in that the
Shares will be listed and traded on the Exchange pursuant to the
initial and continued listing criteria in proposed NYSE Arca Rule
8.601-E.\38\
---------------------------------------------------------------------------
\38\ The Exchange represents that, for initial and continued
listing, the Funds will be in compliance with Rule 10A-3 under the
Act, as provided by NYSE Arca Rule 5.3-E.
---------------------------------------------------------------------------
Each Fund's holdings will conform to the permissible investments as
set forth in the American Century Application and the Exemptive Order
and the holdings will be consistent with all requirements in the
American Century Application and American Century Exemptive Order.\39\
Any foreign common stocks held by a Fund will be traded on an exchange
that is a member of the ISG or with which the Exchange has in place a
comprehensive surveillance sharing agreement.
---------------------------------------------------------------------------
\39\ See note 24, supra.
---------------------------------------------------------------------------
Each Fund's investments will be consistent with its investment
objective. Each Fund's investments, including derivatives, will be
consistent with its investment objective and will not be used to
enhance leverage (although certain derivatives and other investments
may result in leverage). That is, a Fund's investments will not be used
to seek performance that is the multiple or inverse multiple (e.g., 2X
or -3X) of a Fund's primary broad-based securities benchmark index (as
defined in Form N-1A).
The Exchange or FINRA, on behalf of the Exchange, or both, will
communicate as needed regarding trading in the Shares and underlying
exchange-traded instruments with other markets and other entities that
are members of the ISG, and the Exchange or FINRA, on behalf of the
Exchange, or both, may obtain trading information regarding trading in
the Shares and exchange-traded instruments from such markets and other
entities. In addition, the Exchange may obtain information regarding
trading in the Shares and exchange-traded instruments from markets and
other entities that are members of ISG or with which the Exchange has
in place a comprehensive surveillance sharing agreement.
The Exchange, after consulting with various LMMs that trade ETFs on
the Exchange, believes that market makers will be able to make
efficient and liquid markets priced near the ETF's intraday value, and
market makers employ market making techniques such as ``statistical
arbitrage,'' including correlation hedging, beta hedging, and
dispersion trading, which is currently used throughout the financial
services industry, to make efficient markets in exchange-traded
products.\40\ For Active Proxy Portfolio Shares, market makers may use
the knowledge of a fund's means of achieving its investment objective,
as described in the applicable fund registration statement, as well as
a fund's disclosed Proxy Portfolio, to construct a hedging proxy for a
fund to manage a market maker's quoting risk in connection with trading
fund shares. Market makers can then conduct statistical arbitrage
between their hedging proxy and shares of a fund, buying and selling
one against the other over the course of the trading day. This ability
should permit market makers to make efficient markets in an issue of
Active Proxy Portfolio Shares without precise knowledge of a fund's
underlying portfolio. This is similar to certain other existing
exchange-traded products (for example, ETFs that invest in foreign
securities that do not trade during U.S. trading hours), in which
spreads may be generally wider in the early days of trading and then
narrow as
[[Page 40706]]
market makers gain more confidence in their real-time hedges.
---------------------------------------------------------------------------
\40\ See note 19, supra.
---------------------------------------------------------------------------
The Funds will utilize the NYSE Proxy Portfolio Methodology that
would allow market participants to assess the intraday value and
associated risk of a Fund's Actual Portfolio and thereby facilitate the
purchase and sale of Shares by investors in the secondary market at
prices that do not vary materially from their NAV.
The daily dissemination of the identity and quantity of Proxy
Portfolio component investments, together with the right of Authorized
Participants to create and redeem each day at the NAV, will be
sufficient for market participants to value and trade Shares in a
manner that will not lead to significant deviations between the Shares'
Bid/Ask Price and NAV.
With respect to Active Proxy Portfolio Shares generally, the
pricing efficiency with respect to trading a series of Active Proxy
Portfolio Shares will generally rest on the ability of market
participants to arbitrage between the shares and a fund's portfolio, in
addition to the ability of market participants to assess a fund's
underlying value accurately enough throughout the trading day in order
to hedge positions in shares effectively. Professional traders can buy
shares that they perceive to be trading at a price less than that which
will be available at a subsequent time and sell shares they perceive to
be trading at a price higher than that which will be available at a
subsequent time. It is expected that, as part of their normal day-to-
day trading activity, market makers assigned to shares by the Exchange,
off-exchange market makers, firms that specialize in electronic
trading, hedge funds and other professionals specializing in short-
term, non-fundamental trading strategies will assume the risk of being
``long'' or ``short'' shares through such trading and will hedge such
risk wholly or partly by simultaneously taking positions in correlated
assets \41\ or by netting the exposure against other, offsetting
trading positions--much as such firms do with existing ETFs and other
equities. Disclosure of a fund's investment objective and principal
investment strategies in its prospectus and SAI should permit
professional investors to engage easily in this type of hedging
activity.
---------------------------------------------------------------------------
\41\ Price correlation trading is used throughout the financial
industry. It is used to discover both trading opportunities to be
exploited, such as currency pairs and statistical arbitrage, as well
as for risk mitigation such as dispersion trading and beta hedging.
These correlations are a function of differentials, over time,
between one or multiple securities pricing. Once the nature of these
price deviations have been quantified, a universe of securities is
searched in an effort to, in the case of a hedging strategy,
minimize the differential. Once a suitable hedging basket has been
identified, a trader can minimize portfolio risk by executing the
hedging basket. The trader then can monitor the performance of this
hedge throughout the trade period, making corrections where
warranted.
---------------------------------------------------------------------------
The proposed rule change is designed to promote just and equitable
principles of trade and to protect investors and the public interest in
that the Exchange will obtain a representation from the Funds that the
NAV per Share of a Fund will be calculated daily and that the NAV,
Proxy Portfolio and Actual Portfolio for each Fund will be made
available to all market participants at the same time. Investors can
obtain a Fund's SAI, shareholder reports, and its Form N-CSR, Form N-
PORT and Form N-CEN. A Fund's SAI and shareholder reports will be
available free upon request from a Fund, and those documents and the
Form N-CSR, Form N-PORT and Form N-CEN may be viewed on-screen or
downloaded from the Commission's website. In addition, with respect to
each Fund, a large amount of information will be publicly available
regarding the Funds and the Shares, thereby promoting market
transparency. Quotation and last sale information for the Shares, ETFs,
ETNs, U.S. exchange-traded common stocks, preferred stocks and ADRs
will be available via the CTA high-speed line or from the exchange on
which such securities trade. Price information for futures, foreign
stocks and cash equivalents is available through major market data
vendors. The website for the Funds will include a form of the
prospectus for each Fund that may be downloaded, and additional data
relating to NAV and other applicable quantitative information, updated
on a daily basis. Trading in Shares of the Funds will be halted if the
circuit breaker parameters in NYSE Arca Rule 7.12-E have been reached
or because of market conditions or for reasons that, in the view of the
Exchange, make trading in the Shares inadvisable. In addition, as noted
above, investors will have ready access to the Proxy Portfolio and
quotation and last sale information for the Shares. The Proxy Portfolio
holdings for each Fund (including the identity and quantity of
investments in the Proxy Portfolio) will be publicly available on the
Funds' website before the commencement of trading in Shares on each
Business Day. The Shares will conform to the initial and continued
listing criteria under proposed Rule 8.601-E.\42\
---------------------------------------------------------------------------
\42\ See Amendment 6 to SR-NYSEArca-2019-95, referenced in note
13, supra.
---------------------------------------------------------------------------
The Shares of the Funds will be subject to proposed Rule 8.601-
E(d)(2)(D), which provides that the Exchange may consider all relevant
factors in exercising its discretion to halt trading in a series of
Active Proxy Portfolio Shares. Trading may be halted because of market
conditions or for reasons that, in the view of the Exchange, make
trading in the series of Active Proxy Portfolio Shares inadvisable.
These may include: (a) The extent to which trading is not occurring in
the securities and/or the financial instruments composing the Proxy
Portfolio and/or Actual Portfolio; or (b) whether other unusual
conditions or circumstances detrimental to the maintenance of a fair
and orderly market are present. If the Exchange becomes aware that the
NAV, Proxy Portfolio or Actual Portfolio with respect to a series of
Active Proxy Portfolio Shares is not disseminated to all market
participants at the same time, the Exchange shall halt trading in such
series until such time as the NAV, Proxy Portfolio or Actual Portfolio
is available to all market participants at the same time.
The proposed rule change is designed to perfect the mechanism of a
free and open market and, in general, to protect investors and the
public interest in that it will facilitate the listing and trading of
an additional type of actively-managed exchange-traded product that
will enhance competition among market participants, to the benefit of
investors and the marketplace. The Exchange will obtain a
representation from the Adviser, prior to commencement of trading in
the Shares of a Fund, that it will advise the Exchange of any failure
by a Fund to comply with the continued listing requirements, and,
pursuant to its obligations under Section 19(g)(1) of the Act, the
Exchange will monitor for compliance with the continued listing
requirements. If a Fund is not in compliance with the applicable
listing requirements, the Exchange will commence delisting procedures
under NYSE Arca Rule 5.5-E(m).
As noted above, the Exchange has in place surveillance procedures
relating to trading in the Shares and may obtain information via ISG
from other exchanges that are members of ISG or with which the Exchange
has entered into a comprehensive surveillance sharing agreement. In
addition, as noted above, investors will have ready access to
information regarding quotation and last sale information for the
Shares.
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
[[Page 40707]]
necessary or appropriate in furtherance of the purposes of the Act. The
Exchange believes the proposed rule change would permit listing and
trading of another type of actively-managed ETF that has
characteristics different from existing actively-managed and index ETFs
and would introduce additional competition among various ETF products
to the benefit of investors.
C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others
No written comments were solicited or received with respect to the
proposed rule change.
III. Discussion and Commission Findings
After careful review, the Commission finds that the proposed rule
change, as modified by Amendment No. 5, is consistent with the Act and
rules and regulations thereunder applicable to a national securities
exchange.\43\ In particular, the Commission finds that the proposed
rule change, as modified by Amendment No. 5 is consistent with Section
6(b)(5) of the Act,\44\ which requires, among other things, that the
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. The Commission notes that in a
separate order, it approved the Exchange's proposed rule change to
adopt NYSE Arca Rule 8.601-E to permit the listing and trading of
Active Proxy Portfolio Shares.\45\
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\43\ In approving this proposed rule change, the Commission
notes that it has considered the proposed rule's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
\44\ 15 U.S.C. 78f(b)(5).
\45\ See note 3 supra.
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The Commission believes that the proposal is reasonably designed to
promote fair disclosure of information that may be necessary to price
the Shares appropriately and to prevent trading in the Shares when a
reasonable degree of certain pricing transparency cannot be assured. As
such, the Commission believes the proposal is reasonably designed to
maintain a fair and orderly market for trading the Shares. The
Commission also finds that the proposal is consistent with Section
11A(a)(1)(C)(iii) of the Act, which sets forth Congress's finding that
it is in the public interest and appropriate for the protection of
investors and the maintenance of fair and orderly markets to assure the
availability to brokers, dealers, and investors of information with
respect to quotations for, and transactions in, securities.
Specifically, the Commission notes that the Exchange, prior to
commencement of trading in the Shares, will obtain a representation
from the issuer of the Shares of each Fund that the NAV per Share will
be calculated daily and that the NAV, Proxy Portfolio, and Actual
Portfolio for each Fund will be made available to all market
participants at the same time.\46\ Information regarding market price
and trading volume of the Shares will be continually available on a
real-time basis throughout the day on brokers' computer screens and
other electronic services. Quotation and last-sale information for the
Shares, ETFs, ETNs, U.S. exchange-traded common stocks, preferred
stocks, and ADRs will be available via the Consolidated Tape
Association high-speed line or from the exchange on which such
securities trade. Price information for futures, foreign stocks and
cash equivalents is available through major market data vendors. The
Funds' website will include additional information updated on a daily
basis, including, on a per Share basis for each Fund, the prior
business day's NAV, the closing price or bid/ask price at the time of
calculation of such NAV, and a calculation of the premium or discount
of the closing price or bid/ask price against such NAV. The website
will also disclose the percentage weight overlap between the holdings
of the Proxy Portfolio compared to the Actual Portfolio holdings for
the prior business day, and any other information regarding premiums
and discounts and the bid/ask spread for a Fund as may be required for
other ETFs under Rule 6c-11 under the 1940 Act. The Proxy Portfolio
holdings for each Fund (including the identity and quantity of
investments in the Proxy Portfolio) will be publicly available on the
Funds' website before the commencement of trading in Shares on each
Business Day and each Fund's website will disclose the information
required under Rule 8.601-E(c)(3).\47\ The website and information will
be publicly available at no charge.
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\46\ See NYSE Arca Rule 8.601-E(d)(1)(B).
\47\ See Rule 8.601-E(c)(3), which requires that the website for
each series of Active Proxy Portfolio Shares shall disclose the
information regarding the Proxy Portfolio as provided in the
exemptive relief pursuant to the Investment Company Act of 1940
applicable to such series, including the following, to the extent
applicable: (i) Ticker symbol; (ii) CUSIP or other identifier; (iii)
description of holding; (iv) quantity of each security or other
asset held; and (v) percentage weighting of the holding in the
portfolio.
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In addition, the Exchange states that intraday pricing information
for all constituents of the Proxy Portfolio that are exchange-traded,
which includes all eligible instruments except cash and cash
equivalents, will be available on the exchanges on which they are
traded and through subscription services, and that intraday pricing
information for cash equivalents will be available through subscription
services and/or pricing services.
The Commission also notes that the Exchange's rules regarding
trading halts help to ensure the maintenance of fair and orderly
markets for the Shares. Specifically, pursuant to its rules, the
Exchange may consider all relevant factors in exercising its discretion
to halt trading in the Shares and will halt trading in the Shares under
the conditions specified in NYSE Arca Rule 7.12-E. Trading may be
halted because of market conditions or for reasons that, in the view of
the Exchange, make trading in the Shares inadvisable, including (1) the
extent to which trading is not occurring in the securities and/or the
financial instruments composing the Proxy Portfolio and/or Actual
Portfolio; or (2) whether other unusual conditions or circumstances
detrimental to the maintenance of a fair and orderly market are
present.\48\ Trading in the Shares also will be subject to NYSE Arca
Rule 8.601-E(d)(2)(D), which sets forth additional circumstances under
which trading in the Shares will be halted.
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\48\ See NYSE Arca Rule 8.601-E(d)(2)(D)(i).
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The Commission also believes that the proposal is reasonably
designed to help prevent fraudulent and manipulative acts and
practices. Specifically, the Exchange provides that:
The Adviser is not registered as a broker-dealer but is
affiliated with a broker-dealer and has implemented and will maintain a
``fire wall'' with respect to such broker-dealer affiliate regarding
access to information concerning the composition of and/or changes to a
Fund's Actual Portfolio and/or Proxy Portfolio;
Any person related to the Adviser or a Fund who makes
decisions pertaining to the Fund's Actual Portfolio and/or Proxy
Portfolio or who has access to non-public information regarding a
Fund's Actual Portfolio and/or the Proxy Portfolio or changes thereto
are subject to procedures reasonably designed to prevent the use and
dissemination of material non-public information regarding a Fund's
Actual
[[Page 40708]]
Portfolio and/or the Proxy Portfolio or changes thereto;
In the event (a) the Adviser becomes registered as a
broker-dealer or becomes newly affiliated with a broker-dealer or (b)
any new adviser or sub-adviser is a registered broker-dealer, or
becomes affiliated with a broker-dealer, it will implement and maintain
a fire wall with respect to its relevant personnel or its broker-dealer
affiliate regarding access to information concerning the composition of
and/or changes to a Fund's Actual Portfolio and/or Proxy Portfolio, and
will be subject to procedures designed to prevent the use and
dissemination of material non-public information regarding a Fund's
Actual Portfolio and/or Proxy Portfolio or changes thereto; and
Any person or entity, including any service provider for a
Fund, who has access to non-public information regarding a Fund's
Actual Portfolio or the Proxy Portfolio or changes thereto will be
subject to procedures reasonably designed to prevent the use and
dissemination of material non-public information regarding a Fund's
Actual Portfolio and/or the Proxy Portfolio or changes thereto, and if
any such person or entity is registered as a broker-dealer or
affiliated with a broker-dealer, such person or entity has erected and
will maintain a ``fire wall'' between the person or entity and the
broker-dealer with respect to access to information concerning the
composition of and/or changes to a Fund's Actual Portfolio and/or Proxy
Portfolio.
Finally, the Exchange represents that trading in the Shares will be
subject to the existing trading surveillances, administered by the
Exchange, as well as cross-market surveillances administered by FINRA
on behalf of the Exchange,\49\ and that these surveillance procedures
are adequate to properly monitor Exchange trading of the Shares in all
trading sessions and to deter and detect violations of Exchange rules
and federal securities laws applicable to trading on the Exchange.
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\49\ See NYSE Arca Rule 8.601-E, Commentary .03, which requires,
as part of the surveillance procedures for Active Proxy Portfolio
Shares, a Fund's investment adviser to, upon request by the Exchange
or FINRA, on behalf of the Exchange, make available to the Exchange
or FINRA the daily Actual Portfolio holdings of the Fund.
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The Exchange deems the Shares to be equity securities, thus
rendering trading in the Shares subject to the Exchange's existing
rules governing the trading of equity securities.
In support of this proposal, the Exchange represents that:
(1) The Shares will conform to the initial and continued listing
criteria under NYSE Arca Rule 8.601-E.
(2) A minimum of 100,000 Shares for each Fund will be outstanding
at the commencement of trading on the Exchange.
(3) The Exchange or FINRA, on behalf of the Exchange, or both, will
communicate as needed, and may obtain information, regarding trading in
the Shares and underlying exchange-traded instruments with other
markets and other entities that are members of the ISG. In addition,
the Exchange may obtain information regarding trading in the Shares and
exchange-traded instruments from markets and other entities with which
the Exchange has in place a comprehensive surveillance sharing
agreement. Any foreign common stocks held by a Fund will be traded on
an exchange that is a member of the ISG or with which the Exchange has
in place a comprehensive surveillance sharing agreement.
(4) The Exchange has appropriate rules to facilitate transactions
in the Shares during all trading sessions.
(5) For initial and continued listing, the Funds will be in
compliance with Rule 10A-3 under the Act.\50\
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\50\ See 17 CFR 240.10A-3.
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(6) Each Fund's holdings will conform to the permissible
investments as set forth in the Application and Exemptive Order and the
holdings will be consistent with all requirements set forth in the
Application and Exemptive Order. Each Fund's investments, including
derivatives, will be consistent with its investment objective and will
not be used to enhance leverage (although certain derivatives and other
investments may result in leverage).
(7) With respect to Active Proxy Portfolio Shares, all of the
Exchange member obligations relating to product description and
prospectus delivery requirements will continue to apply in accordance
with Exchange rules and federal securities laws, and the Exchange and
FINRA will continue to monitor Exchange members for compliance with
such requirements.
The Exchange also represents that all statements and
representations made in the filing regarding: (1) The description of
the portfolios or reference assets; (2) limitations on portfolio
holdings or reference assets; or (3) the applicability of Exchange
listing rules specified in the filing constitute continued listing
requirements for listing the Shares on the Exchange. In addition, the
Exchange represents that the Exchange will obtain a representation from
the Adviser, prior to commencement of trading in the Shares, that the
Adviser will advise the Exchange of any failure by a Fund to comply
with the continued listing requirements and, pursuant to its
obligations under Section 19(g)(1) of the Act, the Exchange will
monitor \51\ for compliance with the continued listing requirements. If
a Fund is not in compliance with the applicable listing requirements,
the Exchange will commence delisting procedures under NYSE Arca Rule
5.5-E(m).
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\51\ The Commission notes that certain proposals for the listing
and trading of exchange-traded products include a representation
that the exchange will ``surveil'' for compliance with the continued
listing requirements. See, e.g., Securities Exchange Act Release No.
77499 (April 1, 2016), 81 FR 20428, 20432 (April 7, 2016) (SR-BATS-
2016-04). In the context of this representation, it is the
Commission's view that ``monitor'' and ``surveil'' both mean ongoing
oversight of compliance with the continued listing requirements.
Therefore, the Commission does not view ``monitor'' as a more or
less stringent obligation than ``surveil'' with respect to the
continued listing requirements.
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IV. Solicitation of Comments on Amendment No. 5 to the Proposed Rule
Change
Interested persons are invited to submit written data, views, and
arguments concerning whether the proposed rule change, as modified by
Amendment No. 5, is consistent with the Exchange Act. Comments may be
submitted by any of the following methods:
Electronic Comments
Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
Send an email to [email protected]. Please include
File Number SR-NYSEArca-2019-96 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-NYSEArca-2019-96. This
file number should be included on the subject line if email is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (http://www.sec.gov/rules/sro.shtml).
Copies of the submission, all subsequent amendments, all written
statements with respect to the proposed rule change that are filed with
the Commission, and all written communications relating to the proposed
rule change between the Commission and any person, other than
[[Page 40709]]
those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for website viewing and
printing in the Commission's Public Reference Room, 100 F Street NE,
Washington, DC 20549, on official business days between the hours of
10:00 a.m. and 3:00 p.m. Copies of the filing also will be available
for inspection and copying at the principal office of the Exchange. All
comments received will be posted without change. Persons submitting
comments are cautioned that we do not redact or edit personal
identifying information from comment submissions. You should submit
only information that you wish to make available publicly. All
submissions should refer to File Number SR-NYSEArca-2019-96, and should
be submitted on or before July 28, 2020.
V. Accelerated Approval of Proposed Rule Change, as Modified by
Amendment No. 5
The Commission finds good cause to approve the proposed rule
change, as modified by Amendment No. 5, prior to the thirtieth day
after the date of publication of notice of the filing of Amendment No.
5 in the Federal Register. In Amendment No. 5, the Exchange modified
the description of each Fund and conformed the description of NYSE Arca
Rule 8.601-E to the final rule approved in the Active Proxy Portfolio
Shares Order.\52\ Amendment No. 5 also provides other clarifications
and additional information related to the Funds.\53\ The changes and
additional information in Amendment No. 5 assist the Commission in
finding that the proposal is consistent with the Exchange Act.
Accordingly, the Commission finds good cause, pursuant to Section
19(b)(2) of the Exchange Act,\54\ to approve the proposed rule change,
as modified by Amendment No. 5, on an accelerated basis.
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\52\ See supra note 3.
\53\ See Amendment No. 5, supra note 12.
\54\ 15 U.S.C. 78s(b)(2).
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VI. Conclusion
It is therefore ordered, pursuant to Section 19(b)(2) of the Act
\55\ that the proposed rule change (SR-NYSEArc-2019-96), as modified by
Amendment No. 5, be, and it hereby is, approved on an accelerated
basis.
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\55\ Id.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\56\
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\56\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020-14490 Filed 7-6-20; 8:45 am]
BILLING CODE 8011-01-P