Securities Lawyer's Deskbook                          published by The University of Cincinnati College of Law

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Rule 201 -- Temporary Hardship Exemption

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1. If an electronic filer experiences unanticipated technical difficulties preventing the timely preparation and submission of an electronic filing, other than a Form 3, a Form 4, a Form 5, a Form ID, a Form TA-1, a Form TA-2, a Form TA-W, a Form D, an application for an order under any section of the Investment Company Act (15 U.S.C. 80a-1 et seq.), or an Interactive Data File (§ 232.11 of this chapter), the electronic filer may file the subject filing, under cover of Form TH, in paper format no later than one business day after the date on which the filing was to be made.
   
   
   1. A microfiche copy of the paper format document shall be the official filing of the registrant for purposes of the federal securities laws.
      
      
   2. The following legend shall be set forth in capital letters on the cover page of the paper format document:

      IN ACCORDANCE WITH RULE 201 OF REGULATION S-T, THIS (SPECIFY DOCUMENT) IS BEING FILED IN PAPER PURSUANT TO A TEMPORARY HARDSHIP EXEMPTION.

   3. Signatures to the paper format document may be in typed form rather than manual format. See Rule 302 of Regulation S-T. All other requirements relating to paper format filings shall be satisfied.
      
      
   4. If the exemption pertains to a document filed pursuant to Section 13(a) or 15(d) of the Exchange Act or Section 30 of the Investment Company Act and the paper format document is filed in the manner specified in paragraph (a) of this section, the filing shall be deemed to have been filed by its required due date.
      
      

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   Notes to paragraph a:
   
   
   1. Where a temporary hardship exemption relates to an exhibit only, the paper format exhibit shall be filed under cover of Form SE.
      
      
   2. Filers unable to submit a report within a prescribed time period because of electronic difficulties shall comply with the provisions of this section and shall not use Form 12b-25 as a notification of late filing.

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2. An electronic format copy of the filed paper format document shall be submitted to the Commission within six business days of filing the paper format document. The electronic format version shall contain the following statement in capital letters at the top of the first page of the document:

   THIS DOCUMENT IS A COPY OF THE (SPECIFY DOCUMENT) FILED ON (DATE) PURSUANT TO A RULE 201 TEMPORARY HARDSHIP EXEMPTION.

   
   

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   Notes to paragraph b:
   
   
   1. Failure to submit the confirming electronic copy of a paper filing made in reliance on the temporary hardship exemption, as required in paragraph (b) of this section, will result in ineligibility to use Forms S-2, S-3, S-8, F-2 and F-3, restrict incorporation by reference of the document submitted in paper (see Rule 303 of Regulation S-T), and toll certain time periods associated with tender offers (see Rule 13e4 (f)(12) and Rule 14e-1(e) under the Exchange Act).
      
      
   2. If the exemption relates to an exhibit only, the requirement to submit a confirming electronic copy shall be satisfied by refiling the exhibit in electronic format in an amendment to the filing to which it relates. The confirming copy tag should not be used. The amendment should note that the purpose of the amendment is to add an electronic copy of an exhibit previously filed in paper pursuant to a temporary hardship exemption.

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3. If an electronic filer experiences unanticipated technical difficulties preventing the timely preparation and--
   
   
   1. Submission of an Interactive Data File (Rule 232.11) as an exhibit as required pursuant to Rule 405 of Regulation S-T, the electronic filer still can timely satisfy the requirement to submit the Interactive Data File in the following manner:
      
      
      1. Substitute for the Interactive Data File in the required exhibit a document that sets forth the following legend:
         
         

         IN ACCORDANCE WITH THE TEMPORARY HARDSHIP EXEMPTION PROVIDED BY RULE 201 OF REGULATION S-T, THE DATE BY WHICH THE INTERACTIVE DATA FILE IS REQUIRED TO BE SUBMITTED HAS BEEN EXTENDED BY SIX BUSINESS DAYS; and

         
         
         
      2. Submit the required Interactive Data File no later than six business days after the Interactive Data File originally was required to be submitted.
         
         
   2. Posting on its corporate Web site of an Interactive Data File as required pursuant to Rule 405 of Regulation S-T, the electronic filer still can timely satisfy the requirement to post the Interactive Data File by so posting the Interactive Data File within six business days after the Interactive Data File was required to be submitted to the Commission.
      
      

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      Note to paragraph (c):
      Electronic filers unable to submit or post, as applicable, the Interactive Data File under the circumstances specified by paragraph (c), must comply with the provisions of this section and cannot use Form 12b-25 (§ 249.322 of this chapter) as a notification of late filing. Failure to submit or post, as applicable, the Interactive Data File as required by the end of the six-business-day period specified by paragraph (c) of this section will result in ineligibility to use Forms S-3, S-8 and F-3 (§§ 239.13, 239.16b, and 239.33 of this chapter) and constitute a failure to have filed all required reports for purposes of the current public information requirements of Rule 144(c)(1) (§ 230.144(c)(1) of this chapter).
      

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