Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Notices 67851 

30 15 U.S.C. 78s(b)(3)(A)(ii). 

31 17 CFR 240.19b–4(f)(2). 

32 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

3See Securities Exchange Act Release No. 97461 

(May 9, 2023), 88 FR 31045. Comments received on 

the proposed rule change can be found at: https:// 

www.sec.gov/comments/sr-cboebzx-2023-028/ 

srcboebzx2023028.htm. 

4 15 U.S.C. 78s(b)(2). 

5See Securities Exchange Act Release No. 97732, 

88 FR 40877 (June 22, 2023). The Commission 

designated August 13, 2023, as the date by which 

the Commission shall approve or disapprove, or 

institute proceedings to determine whether to 

disapprove, the proposed rule change. 

6 15 U.S.C. 78s(b)(2)(B). 

7See Securities Exchange Act Release No. 98112, 

88 FR 55743 (Aug. 16, 2023). 

8 15 U.S.C. 78s(b)(2). 

9See supra note 3. 

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)(ii) of the Act 30 and Rule 

19b–4(f)(2) 31 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 shall institute proceedings 

to determine whether the proposed rule 

change should be approved or 

disapproved. 

IV. Solicitation of Comments 

Interested persons are invited to 

submit written data, views and 

arguments concerning the foregoing, 

including whether the proposed rule 

change is consistent with the Act. 

Comments may be submitted by any of 

the following methods: 

Electronic Comments 

• Use the Commission’s internet 

comment form (https://www.sec.gov/ 

rules/sro.shtml); or 

• Send an email to rule-comments@

sec.gov. Please include file number SR– 

MEMX–2023–24 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–MEMX–2023–24. This file 

number should be included on the 

subject line if email is used. To help the 

Commission process and review your 

comments more efficiently, please use 

only one method. The Commission will 

post all comments on the Commission’s 

internet website (https://www.sec.gov/ 

rules/sro.shtml). Copies of the 

submission, all subsequent 

amendments, all written statements 

with respect to the proposed rule 

change that are filed with the 

Commission, and all written 

communications relating to the 

proposed rule change between the 

Commission and any person, other than 

those that may be withheld from the 

public in accordance with the 

provisions of 5 U.S.C. 552, will be 

available for website viewing and 

printing in the Commission’s Public 

Reference Room, 100 F Street NE, 

Washington, DC 20549, on official 

business days between the hours of 10 

a.m. and 3 p.m. Copies of the filing also 

will be available for inspection and 

copying at the principal office of the 

Exchange. Do not include personal 

identifiable information in submissions; 

you should submit only information 

that you wish to make available 

publicly. We may redact in part or 

withhold entirely from publication 

submitted material that is obscene or 

subject to copyright protection. All 

submissions should refer to file number 

SR–MEMX–2023–24 and should be 

submitted on or before October 23, 

2023. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.32

Sherry R. Haywood, 

Assistant Secretary. 

[FR Doc. 2023–21625 Filed 9–29–23; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–98530; File No. SR– 

CboeBZX–2023–028] 

Self-Regulatory Organizations; Cboe 

BZX Exchange, Inc.; Notice of 

Designation of a Longer Period for 

Commission Action on Proceedings To 

Determine Whether To Approve or 

Disapprove a Proposed Rule Change, 

as Modified by Amendment No. 3, To 

List and Trade Shares of the ARK 

21Shares Bitcoin ETF Under BZX Rule 

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

Shares 

September 26, 2023. 

On April 25, 2023, Cboe BZX 

Exchange, Inc. (‘‘BZX’’ 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 of the 

ARK 21Shares Bitcoin ETF under BZX 

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

Trust Shares. The proposed rule change 

was published for comment in the 

Federal Register on May 15, 2023.3

On June 15, 2023, pursuant to Section 

19(b)(2) of the Act,4 the Commission 

designated a longer period within which 

to approve the proposed rule change, 

disapprove the proposed rule change, or 

institute proceedings to determine 

whether to disapprove the proposed 

rule change.5 On June 28, 2023, the 

Exchange filed Amendment No. 1 to the 

proposed rule change, which amended 

and replaced the proposed rule change 

in its entirety. On June 30, 2023, the 

Exchange filed Amendment No. 2 to the 

proposed rule change, which amended 

and replaced the proposed rule change, 

as modified by Amendment No. 1, in its 

entirety. On July 11, 2023, the Exchange 

filed Amendment No. 3 to the proposed 

rule change, which amended and 

replaced the proposed rule change, as 

modified by Amendment No. 2, in its 

entirety. On August 11, 2023, the 

Commission published notice of 

Amendment No. 3 to the proposed rule 

change and instituted proceedings 

under Section 19(b)(2)(B) of the Act 6 to 

determine whether to approve or 

disapprove the proposed rule change, as 

modified by Amendment No. 3.7

Section 19(b)(2) of the Act 8 provides 

that, after initiating proceedings, the 

Commission shall issue an order 

approving or disapproving the proposed 

rule change not later than 180 days after 

the date of publication of notice of filing 

of the proposed rule change. The 

Commission may extend the period for 

issuing an order approving or 

disapproving the proposed rule change, 

however, by not more than 60 days if 

the Commission determines that a 

longer period is appropriate and 

publishes the reasons for such 

determination. The proposed rule 

change was published for comment in 

the Federal Register on May 15, 2023.9

The 180th day after publication of the 

proposed rule change is November 11, 

2023. The Commission is extending the 

time period for approving or 

disapproving the proposed rule change 

for an additional 60 days. 

The Commission finds that it is 

appropriate to designate a longer period 

within which to issue an order 

approving or disapproving the proposed 

rule change so that it has sufficient time 


lotter on DSK11XQN23PROD with NOTICES1
67852 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Notices 

10 15 U.S.C. 78s(b)(2). 

11 17 CFR 200.30–3(a)(57). 

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

2 17 CFR 240.19b–4. 

3 17 CFR 240.3a51–1(g). 

4See Rule 14.9(b)(1)(A). 

5See Securities Exchange Act Nos. 66159 

(January 13, 2012) 77 FR 3021 (January 20, 2012) 

(SR–NASDAQ–2012–002) (Notice of Filing of 

Proposed Rule Change To Adopt an Alternative to 

the $4 Initial Listing Bid Price Requirement for the 

Nasdaq Capital Market of Either $2 or $3, if Certain 

Other Listing Requirements Are Met); 66830 (April 

18, 2012) 77 FR 24549 (April 24, 2012) (Notice of 

Filing of Amendment No. 1 and Order Granting 

Accelerated Approval to Proposed Rule Change, as 

Modified by Amendment No. 1, To Adopt an 

Alternative to the $4 Per Share Initial Listing Bid 

Price Requirement for the Nasdaq Capital Market of 

Either $2 Closing Price Per Share or $3 Closing 

Price Per Share, if Certain Other Listing 

Requirements are Met). 

6 17 CFR 240.3a51–1. 

7 17 CFR 240.15g–1. 

8 17 CFR 240.3a51–1(a)(2). 

9See 17 CFR 240.3a51–1(a)(1). 

10Supra note 5. 

11The Exchange notes that since Nasdaq adopted 

the alternative minimum price requirement in 2012, 

it has adopted certain other initial listing 

requirements that differ from the Exchange’s 

current initial listing requirements. The Exchange is 

not proposing to amend its initial listing 

requirements except for the proposed alternative 

to consider the proposed rule change, as 

modified by Amendment No. 3, and the 

issues raised therein. Accordingly, the 

Commission, pursuant to Section 

19(b)(2) of the Act,10 designates January 

10, 2024, as the date by which the 

Commission shall either approve or 

disapprove the proposed rule change, as 

modified by Amendment No. 3 (File No. 

SR– CboeBZX–2023–028). 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.11

Sherry R. Haywood, 

Assistant Secretary. 

[FR Doc. 2023–21622 Filed 9–29–23; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–98532; File No. SR– 

CboeBZX–2023–063] 

Self-Regulatory Organizations; Cboe 

BZX Exchange, Inc.; Notice of Filing of 

a Proposed Rule Change To Adopt an 

Alternative to the Minimum $4 Price 

Requirement for Companies Seeking 

To List Tier II Securities on the 

Exchange 

September 26, 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 

September 19, 2023, Cboe BZX 

Exchange, Inc. (the ‘‘Exchange’’ or 

‘‘BZX’’) filed with the Securities and 

Exchange Commission (the 

‘‘Commission’’) the proposed rule 

change as described in Items I, II, and 

III, below, which Items have been 

prepared by the Exchange. The 

Commission is publishing this notice to 

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 BZX Exchange, Inc. (‘‘BZX’’ or 

the ‘‘Exchange’’) is filing with the 

Securities and Exchange Commission 

(‘‘Commission’’ or ‘‘SEC’’) a proposed 

rule change to adopt an alternative to 

the minimum $4 price requirement for 

companies seeking to list Tier II 

securities on the Exchange. 

The text of the proposed rule change 

is also available on the Exchange’s 

website (http://markets.cboe.com/us/ 

equities/regulation/rule_filings/bzx/), 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 adopt an 

alternative to the minimum $4 price 

requirement for companies that seek to 

list Tier II securities on the Exchange 

which meet the express exclusion from 

the definition of a ‘‘penny stock’’ 

contained in Exchange Act Rule 3a51– 

1(g) (the ‘‘Penny Stock Rules’’).3 Such 

an amendment would allow a Company 

to list a Tier II security on the Exchange 

if it satisfies all existing and proposed 

listing standards except for the $4 price 

requirement.4 As discussed below, the 

‘‘net tangible assets and average revenue 

tests’’ proposed herein that satisfies the 

requirements of Exchange Act Rule 

3a51–1(g) are substantively identical to 

the net tangible assets and average 

revenue tests proposed by Nasdaq Stock 

Market, LLC (‘‘Nasdaq’’) that received 

Commission approval.5

The Exchange is seeking to make this 

change to enhance competition among 

exchanges for companies with securities 

priced between $2 and $4. Rule 3a51– 

1 6 defines a ‘‘penny stock’’ as any 

equity security that does not satisfy one 

of the exceptions enumerated in 

subparagraphs (a) through (g) under the 

Rule. If a security is a penny stock, 

Rules 15g–1 through 15g–9 under the 

Act 7 impose certain additional 

disclosure and other requirements on 

brokers and dealers when effecting 

transactions in such securities. 

Exchange-listed securities are not 

considered penny stocks because they 

comply with the requirements of Rule 

3a51–1(a)(2) under the Act,8 which 

excepts from the definition of penny 

stock securities registered on national 

securities exchanges that have initial 

listing standards that meet certain 

requirements, including a $4 bid price 

at the time of listing. The Exchange’s 

listings standards currently include all 

the requirements to qualify for the 

penny stock exception under Exchange 

Act Rule 3a51–1(a)(2) so that today, 

once a security is initially listed on the 

Exchange, the Exchange will not be 

considered a penny stock for so long as 

it is listed on the Exchange. 

The penny stock rules also exclude 

from the definition of penny stock, 

under a ‘‘grandfather’’ provision, 

securities registered on a national 

securities exchange that has been 

continually registered as such since 

April 20, 1992, and has maintained 

quantitative listing standards that are 

substantially similar to or stricter than 

those listing standards that were in 

place on the exchange on January 8, 

2004.9 NYSE American, LLC (‘‘NYSE 

American’’) meets this standard, but the 

Exchange, which was more recently 

registered as a national securities 

exchange, does not. Accordingly, NYSE 

American’s initial listing price 

requirements of either $2 or $3 are 

grandfathered under this provision. 

In 2012, Nasdaq received Commission 

approval for a proposed rule change that 

allowed it to adopt an alternative to the 

$4 bid price requirement (the ‘‘Nasdaq 

proposal’’).10 The Exchange is now 

proposing to similarly adopt an 

alternative to the minimum $4 price 

requirement for companies seeking to 

list Tier II securities on the Exchange 

that is substantively identical to the 

Nasdaq proposal at the time it was 

adopted.11


lotter on DSK11XQN23PROD with NOTICES1