On February 21, 2023, the Securities and Exchange Commission (SEC) adopted amendments to Regulation S-T extending the filing deadline for Form 144 from 5:30 p.m. ET to 10:00 p.m. ET.[1] These amendments will be effective on March 20, 2023, just in time to provide some flexibility for affected filers who will soon be required to file their Forms 144 electronically on EDGAR.
As a reminder, in June 2022, the SEC adopted amendments to Rule 144 of the Securities Act of 1933 and Rule 101 of Regulation S-T to require that certain Forms 144 be filed electronically on EDGAR. Starting on April 13, 2023, affected filers will be required to file all Forms 144 electronically on EDGAR.[2]
Prior to these latest amendments, a Form 144 filed on EDGAR after 5:30 p.m. ET would be deemed filed on the next business day. The amended rules will enable filers to make their submissions up until 10:00 p.m. ET and still be deemed filed the same business day, similar to the extended deadline for filing Forms 3, 4, and 5 under Section 16 of the Securities Exchange Act of 1934.
As background, a Form 144 is a notice of the proposed sale of securities in reliance on Rule 144. The notice is filed with the SEC by persons who are affiliates of the issuer when the amount to be sold under Rule 144 by the affiliate during any three-month period exceeds 5,000 shares or has an aggregate sales price in excess of $50,000. Under Rule 144(h), the Form 144 must be filed at the time the order to sell is placed with the broker (or the execution of a sale directly with a market maker), and the person filing the Form 144 must have a bona fide intention to sell the securities referenced in the form within a reasonable time after the filing of the Form 144.
As the April 13 compliance deadline approaches, public companies and affected filers (including directors, executive officers, and other affiliates) should discuss and confirm with the applicable brokers whether the brokers will continue to file the Forms 144 on behalf of the affected filers (historically, brokers have submitted the Forms 144 in paper format to the SEC), or whether this responsibility will shift to the affiliates. Regardless, companies and affected filers will need to continue to ensure compliance with these filing requirements going forward.
[1] The amendment to provide for an extended filing deadline for Form 144 will be set forth in Rule 13(a)(4) of Regulation S-T, codified at 17 CFR §232.13(a)(4). EDGAR’s hours of operation are 6:00 a.m. ET to 10:00 p.m. ET, Monday through Friday, except federal holidays. References in this post to filing deadlines are to Eastern Standard Time or Eastern Daylight Time, whichever is currently in effect, on weekdays that are not federal holidays.
[2] Rule 101(a)(1)(xxvii) of Regulation S-T provides that where the issuer of the securities is subject to the reporting requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934 (“reporting issuers”), Forms 144 shall be submitted to the SEC in electronic format on EDGAR. For securities of non-reporting issuers, filers will continue to be required to submit three copies of the Form 144 to the SEC in paper format by mail. See reinstated Rule 101(c)(6) of Regulation S-T and amended Rule 144(a)(2).