2023-08143. Self-Regulatory Organizations; Cboe EDGX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Its Fee Schedule

April 12, 2023.

Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),^[1] and Rule 19b–4 thereunder,^[2] notice is hereby given that on April 5, 2023, Cboe EDGX Exchange, Inc. (the “Exchange” or “EDGX”) filed with the Securities and Exchange Commission (the “Commission”) the proposed rule change as described in Items I, II, and III below, which Items have been prepared by the Exchange. The Commission is publishing this notice to 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

Cboe EDGX Exchange, Inc. (the “Exchange” or “EDGX”) proposes to amend its Fee Schedule. The text of the proposed rule change is provided in Exhibit 5.

The text of the proposed rule change is also available on the Exchange's website ( http://markets.cboe.com/​us/​options/​regulation/​rule_​filings/​edgx/​), at the Exchange's Office of the Secretary, 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

The Exchange proposes to amend its Fee Schedule.^[3] The Exchange first notes that it operates in a highly competitive market in which market participants can readily direct order flow to competing venues if they deem fee levels at a particular venue to be excessive or incentives to be insufficient. More specifically, the Exchange is only one of 16 options venues to which market participants may direct their order flow. Based on publicly available information, no single options exchange has more than 17% of the market share and currently the Exchange represents only approximately 6% of the market share.^[4] Thus, in such a low-concentrated and highly competitive market, no single options exchange, including the Exchange, possesses significant pricing power in the execution of option order flow. The Exchange believes that the ever-shifting market share among the exchanges from month to month demonstrates that market participants can shift order flow or discontinue to reduce use of certain categories of products, in response to fee changes. Accordingly, competitive forces constrain the Exchange's transaction fees, and market participants can readily trade on competing venues if they deem pricing levels at those other venues to be more favorable.

QCC Initiator/Solicitation Rebate Tiers

The Exchange's Fee Schedule sets forth standard rebates and rates applied per contract. For example, the Exchange assesses a fee of $0.20 per contract for SAM ^[5] Contra Non-Customer orders (including SAM Contra Professional orders), yielding fee code SF, and SAM Agency Non-Customer orders (including SAM Agency Professional orders), yielding fee code SA.

The Fee Codes and Associated Fees section of the Fee Schedule also provides for certain fee codes associated with certain order types and market participants that provide for various other fees or rebates. Additionally, the Fee Schedule offers tiered pricing which provides Members ^[6] opportunities to qualify for higher rebates or reduced fees where certain volume criteria and thresholds are met. Tiered pricing provides an incremental incentive for Members to strive for higher tier levels, which provides increasingly higher benefits or discounts for satisfying increasingly more stringent criteria.

For example, pursuant to Footnote 7 of the Fee Schedule, the Exchange currently offers four QCC ^[7] Initiator/Solicitation Rebate Tiers which provide rebates between $0.14 and $0.26 per contract for qualifying QCC Agency Orders or Solicitation Agency Orders where a Member meets incrementally increasing volume thresholds. Particularly, the Exchange will apply the QCC Initiator/Solicitation Rebate to a Member that submits QCC Agency Orders or Solicitation Agency Orders, including a Member who routed orders to the Exchange with a Designated Give Up, when at least one side of the transaction is of Non-Customer, Non-Professional capacity. Fee codes QA,^[8] QM,^[9] QO,^[10] SA ^[11] and SC ^[12] qualify for these rebates.^[13] There are two separate rebates that are available under each tier, depending on whether one or both sides of the transaction are of Non-Customer, Non-Professional capacity. A qualifying order will receive the rebate under “Rebate 1” if one side of the transaction is of Non-Customer, Non-Professional capacity. A qualifying order will receive the rebate under “Rebate 2”, if both sides of the transaction are of Non-Customer, Non-Professional capacity.

The Exchange proposes to amend the QCC Initiator/Solicitation Rebate Tier program by (1) amending the volume threshold for Tier 3, (2) eliminating Tier 4, and (3) amending current rebates for Tiers 2 and 3.

The Exchange proposes to amend the volume thresholds for Tier 3. Currently, the volume threshold (per month) for Tier 1 is 0 to 999,999 contracts, for Tier 2 is 1,000,000 to 1,999,999 contracts, for Tier 3 is 2,000,000 to 2,999,999 contracts, and for Tier 4 is 3,000,000+ contracts. As proposed, the volume threshold (per month) for Tier 1 remains at 0 to 999,999 contracts, for Tier 2 remains at 1,000,000 to 1,999,999, and for Tier 3 is 2,000,000+ contracts. The Exchange proposes to eliminate Tier 4, as the volume thresholds and rebates for these tiers are now contained within the volume threshold for Tier 3, as amended.

Further, the Exchange proposes to change the rebates for Tiers 2 and 3. Specifically, the Exchange proposes to increase Tier 2 Rebate 1 from $0.15 to $0.16, Tier 2 Rebate 2 from $0.23 to $0.25, Tier 3 Rebate 1 from $0.16 to $0.18, and Tier 3 Rebate 2 from $0.24 to $0.28. The rebates for Tier 1 remain unchanged. The proposed rebate changes account for the elimination of Tier 4, and maintain an established rebate structure based on volume.

The Exchange believes the proposed rebate structure is competitive with rebates offered at another exchange for similar transactions.^[14] Additionally, the proposed changes to the QCC Initiator/Solicitation Rebate Tiers are designed to incentivize Members to grow their QCC Initiator and/or Solicitation order flow to receive the enhanced rebates. The Exchange believes that incentivizing greater QCC Initiator and/or Solicitation order flow would provide more opportunities for participation in QCC trades or in the SAM Auction which increases opportunities for price improvement.

SAM Standard Fee Changes

In connection with the proposed changes to Footnote 7 of the Fee Schedule, the Exchange proposes to amend the Fee Codes and Associated Fees table of the Fee Schedule to adopt new fee codes for SAM Contra ^[15] Professional ^[16] and SAM Agency ^[17] Professional orders. Specifically, the Exchange proposes to adopt new fee codes, SH and SG, to apply to SAM Contra Professional orders and SAM Agency Professional orders, respectively. The Exchange proposes to assess a fee of $0.04 per contract for SAM Contra Professional orders yielding fee code SH and a fee of $0.04 per contract for SAM Agency Professional orders yield fee code SG.^[18]

The Exchange also proposes to amend the description of current fee code SF to provide it applies to SAM Contra Non-Customer, Non-Professional orders, and to amend the current description of current fee code SA to provide it applies to SAM Agency Non-Customer, Non-Professional orders. The Exchange proposes to decrease the standard fee for SAM Contra Non-Customer, Non-Professional orders and SAM Agency Non-Customer, Non-Professional orders ( i.e., yield fee codes SF and SA, respectively) from $0.20 per contract to $0.18 per contract.

The proposed rule change also amends Footnote 6 of the Fee Schedule to include new fee codes SG and SH, and to reflect the proposed change in fees for orders yielding fee codes SF and SA.

Customer Volume Tiers

The Exchange also proposes to amend Footnote 1 (Customer Volume Tiers), applicable to orders yielding fee codes PC ^[19] and NC.^[20] Pursuant to Footnote 1 of the Fee Schedule, the Exchange currently offers four Customer Volume Rebate Tiers which provide rebates between $0.10 and $0.21 per contract for qualifying customer orders yielding fee codes PC and NC where a Member meets required criteria. The Exchange proposes to amend the Customer Volume Rebate Tier program by (1) amending the current rebate for Tier 3, and (2) amending required criteria for Tier 4.

The Exchange proposes to change the rebates for Tier 3. Specifically, the Exchange proposes to amend the Tier 3 rebate from $0.21 to $0.17.^[21] The rebates for Tiers 1, 2, and 4 remain unchanged.

The Exchange also proposes to amend the required criteria for Tier 4. Currently, to qualify for Tier 4, a Member must have (1) an ADV in Customer orders greater than or equal to 0.75% of average OCV; and (2) an ADV in Customer or Market Maker orders greater than or equal to 1.00% of average OCV; and (3) an ADV in Customer Non-Crossing orders greater than or equal to 0.40% of average OCV. The Exchange proposes to amend Tier 4 required criteria to state that a Member must have (1) an ADV in Customer orders greater than or equal to 0.75% of average OCV; and (2) an ADV in Customer or Market Maker orders greater than or equal to 1.50% of average OCV; and (3) an ADV in Customer Non-Crossing orders greater than or equal to 0.50% of average OCV; and (4) an ADAV in Customer Non-Crossing orders greater than or equal to 0.40% of average OCV.

The Exchange believes that the proposed changes to the Customer Volume Rebate Tier program are designed overall to incentivize more Customer order flow and to direct an increase of order flow to the EDGX Options Order Book. The Exchange believes that an increase in Customer order flow and overall order flow to the Exchange's Book creates more trading opportunities, which, in turn attracts Market-Makers. A resulting increase in Market-Maker activity may facilitate tighter spreads, which may lead to an additional increase of order flow from other market participants, further contributing to a deeper, more liquid market to the benefit of all market participants by creating a more robust and well-balanced market ecosystem.

2. Statutory Basis

The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.^[22] Specifically, the Exchange believes the proposed rule change is consistent with the Section 6(b)(5) ^[23] 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) ^[24] requirement that the rules of an exchange not be designed to permit unfair discrimination between customers, issuers, brokers, or dealers. The Exchange also believes the proposed rule change is consistent with Section 6(b)(4) of the Act,^[25] which requires that Exchange rules provide for the equitable allocation of reasonable dues, fees, and other charges among its Trading Permit Holders and other persons using its facilities.

As described above, the Exchange operates in a highly competitive market in which market participants can readily direct order flow to competing venues if they deem fee levels at a particular venue to be excessive or incentives to be insufficient. The proposed rule change reflects a competitive pricing structure designed to incentivize market participants to direct their order flow to the Exchange, which the Exchange believes would enhance market quality to the benefit of all market participants. The Exchange is only one of several options venues to which market participants may direct their order flow, and it represents a small percentage of the overall market. The proposed fee changes reflect a competitive pricing structure designed to incentivize market participants to direct their order flow, which the Exchange believes would enhance market quality to the benefit of all Members.

The Exchange believes the proposed changes to the QCC Initiator/Solicitation Rebate Tiers are reasonable, equitable, and not unfairly discriminatory. The Exchange believes the changes to the QCC Initiator/Solicitation Rebate Tiers are reasonable overall because, as stated above, in order to operate in the highly competitive markets, the Exchange and its competing exchanges seek to offer similar pricing structures, including assessing comparable rates and offering multiple enhanced pricing opportunities for various types of orders. Thus, the Exchange believes the proposed changes are reasonable as they are generally aligned with and competitive with the amounts assessed for similar orders on other options exchanges.^[26] Further, the Exchange believes the rebate tiers, as modified, continue to serve as a reasonable means to encourage Members to increase their liquidity on the Exchange, particularly in connection with additional QCC and/or Solicitation Agency Order flow to the Exchange in order to benefit from the proposed enhanced rebates. The Exchange believes that incentivizing greater QCC Initiator and/or Solicitation order flow would provide more opportunities for participation in QCC trades or in the SAM Auction which increases opportunities for price improvement. The Exchange also believes that amending the rebate tier structure represents an equitable allocation of fees and is not unfairly discriminatory because they will continue to automatically and uniformly apply to all Members' respective qualifying orders.

Overall, the Exchange believes that its proposed adoption of new fee codes for SAM Contra Professional and SAM Agency Professional orders (and related fee changes for SAM Contra Non-Customer, Non-Professional and SAM Agency Non-Customer, Non-Professional orders) is consistent with Section 6(b)(4) of the Act in that the proposed fees are reasonable, equitable and not unfairly discriminatory. The Exchange believes that the proposed fees are reasonable, equitable, and not unfairly discriminatory in that competing options exchanges offer a similar distinction between market participant types in connection with similar price improvement auctions, ²⁷ as the Exchange now proposes. Further, competing exchanges charge different rates for transactions in their price improvement mechanisms, based on market participant type, in a manner similar to the proposal. The Exchange believes the fee and rebate schedule as proposed continues to reflect differentiation among different market participants typically found in options fee and rebate schedules.

The proposed fees in relation to SAM orders are designed to promote order flow through SAM and, in particular, to attract liquidity, which benefits all market participants by providing additional trading opportunities at improved prices. This, in turn, attracts increased large-order flow from liquidity providers which facilitates tighter spreads and potentially triggers a corresponding increase in order flow originating from other market participants.

Also, the Exchange believes that the proposed fee for SAM Non-Customer, Non-Professional Agency and Contra orders ($0.18 per contract) is reasonable because it encourages participation in SAM by offering a rate that is equivalent to or better than most other price improvement auctions offered by other options exchanges as well as the Exchange itself.^[28]

The Exchange believes the proposed changes to the Customer Volume Rebate Tier program are reasonable because they continue to provide opportunities for Members to receive higher rebates by providing for incrementally increasing volume-based criteria they can reach for. The Exchange believes the tiers, as modified, continue to serve as a reasonable means to encourage Members to increase their liquidity on the Exchange, particularly in connection with additional Customer Order flow to the Exchange in order to benefit from the proposed enhanced rebates. The Exchange also notes that any overall increased liquidity that may result from the proposed tier incentives benefits all investors by offering additional flexibility for all investors to enjoy cost savings, supporting the quality of price discovery, promoting market transparency and improving investor protection.

The Exchange believes that the proposed changes to the Customer Volume Rebate Tier program represent an equitable allocation of fees and is not unfairly discriminatory because Members will be eligible for these tiers and the corresponding enhanced rebates will apply uniformly to all Members that reach the proposed tier criteria. The Exchange believes that a number of market participants have a reasonable opportunity to satisfy the tiers' criteria as modified. While the Exchange has no way of knowing whether this proposed rule change would definitively result in any particular Member qualifying for Tier 4 as amended, the Exchange anticipates at least two Members meeting, or being reasonably able to meet, the revised Tier 4 criteria; however, the proposed tier is open to any Member that satisfies the tier's criteria. The Exchange also notes that the proposed changes will not adversely impact any Member's pricing or their ability to qualify for other rebate tiers. Rather, should a Member not meet the proposed criteria, the Member will merely not receive the corresponding enhanced rebates.

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. Rather, as discussed above, the Exchange believes that the proposed change would encourage the submission of additional order flow to a public exchange, thereby promoting market depth, execution incentives and enhanced execution opportunities for all Members. As a result, the Exchange believes that the proposed change furthers the Commission's goal in adopting Regulation NMS of fostering competition among orders, which promotes “more efficient pricing of individual stocks for all types of orders, large and small.”

The Exchange believes that the proposed rule change does not impose any burden on intramarket competition that is not necessary or appropriate in furtherance of the purposes of the Act. First, the Exchange notes that the proposed changes apply uniformly to similarly situated Members. The Exchange believes that the proposed changes related to QCC and SAM transactions would not impose any burden on intramarket competition, but rather, serves to increase intramarket competition by incentivizing members, including Professionals, to direct their QCC and SAM orders to the Exchange, in turn providing for more opportunities to compete at improved prices. Similarly, the changes to the Customer Volume Rebate Tier program provides an incentive to bring additional liquidity to the Exchange, thereby promoting price discovery and enhancing order execution opportunities for Members.

Additionally, the proposed rule change benefits all market participants as any overall increased liquidity that may result from the proposed fee and tier incentives benefits all investors by offering additional flexibility for all investors to enjoy cost savings, supporting the quality of price discovery, promoting market transparency and improving investor protection.

The Exchange also believes the proposed rule change does not impose any burden on intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act. As previously discussed, the Exchange operates in a highly competitive market. Members have numerous alternative venues they may participate on and direct their order flow, including 15 other options exchanges. Additionally, the Exchange represents a small percentage of the overall market. Based on publicly available information, no single options exchange has more than 17% of the market share. Therefore, no exchange possesses significant pricing power in the execution of order flow. Indeed, participants can readily choose to send their orders to other exchanges if they deem fee levels at those other venues to be more favorable. Moreover, the Commission has repeatedly expressed its preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. Specifically, in Regulation NMS, the Commission highlighted the importance of market forces in determining prices and SRO revenues and, also, recognized that current regulation of the market system “has been remarkably successful in promoting market competition in its broader forms that are most important to investors and listed companies.” The fact that this market is competitive has also long been recognized by the courts. In NetCoalition v. Securities and Exchange Commission, the D.C. Circuit stated as follows: “[n]o one disputes that competition for order flow is `fierce.' . . . As the SEC explained, `[i]n the U.S. national market system, buyers and sellers of securities, and the broker- dealers that act as their order-routing agents, have a wide range of choices of where to route orders for execution'; [and] `no exchange can afford to take its market share percentages for granted' because `no exchange possesses a monopoly, regulatory or otherwise, in the execution of order flow from broker dealers' . . . . ”. Accordingly, the Exchange does not believe its proposed fee change imposes any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.

C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others

The Exchange neither solicited nor received comments on the proposed rule change.

III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action

The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act ^[29] and paragraph (f) of Rule 19b–4 ^[30] thereunder. 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 will 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 ( http://www.sec.gov/​rules/​sro.shtml); or

• Send an email to [e-mail]. Please include File Number SR–CboeEDGX–2023–028 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–CboeEDGX–2023–028. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's internet website ( http://www.sec.gov/​rules/​sro.shtml). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for website viewing and printing in the Commission's Public Reference Room, 100 F Street NE, Washington, DC 20549 on official business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of the filing also will be available for inspection and copying at the principal office of the Exchange. 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–CboeEDGX–2023–028, and should be submitted on or before May 9, 2023.

For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.³¹

Sherry R. Haywood,

Assistant Secretary.

Footnotes

1.  15 U.S.C. 78s(b)(1).

2.  17 CFR 240.19b–4.

3.  The Exchange initially filed the proposed fee changes on April 3, 2023 (SR–CboeEDGX–2023–025). On April 5, 2023, the Exchange withdrew that filing and submitted SR–CboeEDGX–2023–027. On April 5, 2023, the Exchange withdrew that filing and submitted this proposal.

4.   See Cboe Global Markets U.S. Options Market Monthly Volume Summary (March 28, 2023), available at https://markets.cboe.com/​us/​options/​market_​statistics/​.

5.  The term “SAM” refers to Solicitation Auction Mechanism.

6.   See Exchange Rule 1.5(n).

7.  The term “QCC” refers to Qualified Contingent Cross Orders.

8.  Fee Code “QA” is appended to QCC Agency (Customer) Orders.

9.  Fee Code “QM” is appended to QCC Agency (Non-Customer, Non-Professional) Orders.

10.  Fee Code “QO” is appended to QCC Agency (Professional) orders.

11.  Fee Code “SA” is appended to SAM Agency Non-Customer orders.

12.  Fee Code “SC” is appended to SAM Agency (Customer) orders.

13.   See Cboe EDGX U.S. Options Exchange Fees Schedule, Footnote 7, QCC Initiator/Solicitation Rebate Tiers.

14.   See Box Options Fee Schedule, Section IV(D)(1), which provides rebates ranging from $0.14 to $0.17 per contract to the Agency Order where at least one party to the QCC transaction is a Broker-Dealer or Market-Maker ( i.e., a non-customer, non-professional) and from $0.22 to $0.27 per contract where both parties to the QCC transaction are a Broker-Dealer or Market-Maker.

15.  The term “SAM Contra Order” refers to an order submitted by a Member entering a SAM Agency Order for execution within SAM that will potentially execute against the SAM Agency Order pursuant to Rule 21.21 and 21.23.

16.  The term “Professional” means any person or entity that: (A) is not a broker or dealer in securities; and (B) places more than 390 orders in listed options per day on average during a calendar month for its own beneficial account(s). All Professional orders shall be appropriately marked by Options Members.

17.  The term “SAM Agency Order” refers to an order represented as agent by a Member on behalf of another party and submitted to SAM for potential price improvement pursuant to Rule 21.21 and 21.23.

18.  The proposed rule change also adds fee code SG to the “QCC Initiator/Solicitation Rebate Tiers” table under footnote 7 of the Fee Schedule.

19.  Fee Code “PC” is appended to Customer (contra Non-Customer), (contra Customer, removes liquidity), Penny orders.

20.  Fee Code “NC” is appended to Customer (contra Non-Customer), (contra Customer, removes liquidity), Non-Penny orders.

21.  The Exchange proposes to amend this tier rebate as described in the table in Footnote 1 and amend the amounts of the rebates in the Standard Rates table.

22.  15 U.S.C. 78f(b).

23.  15 U.S.C. 78f(b)(5).

24.   Id.

25.  15 U.S.C. 78f(b)(4).

26.   See supra note 13 [sic].

27.   See MIAX Options Fee Schedule, Section 1(a)(v), “MIAX Price Improvement Mechanism (“PRIME”) Fees, which provides for comparable rates for similar market participant type orders submitted into its PRIME auctions. For example, PRIME Customer Agency orders are free of charge; PRIME Agency orders for a Public Customer that is Not a Priority Customer, MIAX Market Maker, Non-MIAX Market Maker, Non-Member Broker-Dealer, and Firm are assessed a fee of $0.30; PRIME Customer Contra-side orders are free of charge; PRIME Contra-side orders for a Public Customer that is Not a Priority Customer, MIAX Market Maker, Non-MIAX Market Maker, Non-Member Broker-Dealer, and Firm are assessed a fee of $0.30. See also Box Options Fee Schedule, Section IV(C), which provides varying rates for similar market participant type orders submitted as a solicitation transaction.

28.   Id.

29.  15 U.S.C. 78s(b)(3)(A).

30.  17 CFR 240.19b–4(f).

31.  17 CFR 200.30–3(a)(12).