SEC Adopts Amendments to Extend Filing Deadline for Form 144 from 5:30 p.m. to 10:00 p.m.
On February 21, 2023, the Securities Exchange Commission (the "SEC") adopted amendments to Regulation S-T to extend the deadline for filing Form 144 on EDGAR from 5:30 p.m. to 10:00 p.m. ET.1 The amendments take effect on March 20, 2023. As discussed in our prior client alert, beginning April 13, 2023, Form 144 must be filed by "affiliates" (such as executive officers and directors)2 of reporting companies on EDGAR electronically, rather than in paper format.3
As the SEC pointed out in the adopting release, the deadline for filing Form 144 is the same day that the affiliate places their order to sell stock. This is notably earlier than the deadline for reporting the same sale on a Form 4 (i.e., the end of the second business day after the sale date), or, to the extent the sale triggers an amendment, an amendment to Schedule 13D or 13G (i.e., for Schedule 13D and certain Schedule 13G filers, "promptly" after the sale, which is typically taken to mean one to two business days after the transaction, subject to facts and circumstances, or, in the case of other Schedule 13G filers, the 10th calendar day of the month, after the transaction).
With this extension, the SEC seeks to lessen the burden on sellers of securities who must file Form 144 on the same day as they place their order to sell stock and may not be aware of their obligation to file the form until nearer the close of trading that day.
While praising the amendments, SEC Commissioner Mark T. Uyeda expressed concern that the SEC"s "piecemeal approach" to deadline extensions may not best serve filers and investors. He notes that, with these amendments, Form 144, Forms 3, 4, and 5, Schedule 14N, and registration statements filed pursuant to Rule 462(b) under the Securities Act of 1933 will be the only forms with a 10:00 p.m. ET deadline as opposed to the regular 5:30 pm deadline for all other forms, and supports extending filing deadlines for other forms as well.4
Karin Braverman (White & Case, Americas Capital Markets Professional Support Lawyer, New York) contributed to the development of this publication.
1 See final rule, Extending Form 144 EDGAR Filing Hours.
2 The term "affiliate" is defined in Rule 144 as "a person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the person specified." An individual or entity's status as an "affiliate" is a fact-specific inquiry that must be determined by considering all relevant facts and circumstances; however, the Commission has indicated that status as an officer, director or 10% stockholder is one fact that must be taken into consideration in such inquiry. See American-Standard, SEC No-Action Letter (October 11, 1972).
3 The SEC also clarified that Form 144 must be filed in paper format by "affiliates" of non-reporting issuers.
4 See Commissioner Uyeda’s statement here.
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