Safe Harbor

Question 1

For a FLS safe harbor in a deck/presentation, what language can be added if it is likely to be used in one-on-one conversations with investors and analysts?

Answer 1

As a general practice add: “(together with
any other statements or information that we may make or discuss in connection herewith)” when first referring to the presentation itself containing FLS.

[See as an example AZYO Deck FLS markup on 12.7.20.]

Question 2

For a deck/presentation, what should the heading be?

Answer 2

“Forward-Looking Statements” and not “Safe Harbor.” (Ellen preference)

Question 3

When reviewing a deck/presentation and the corresponding FLS safe harbor, what are the considerations related to Non-GAAP?

Answer 3

Scroll the slides for references to non-GAAP, check for correct reconciliations, add to safe harbor that the deck includes such discussions, including a reference to the relevant measure(s) therein and note that the appendix etc. includes reconciliations of these non-GAAP financial measures to the most comparable GAAP financial measure.

[See as an example AZYO Deck FLS markup on 12.7.20.]

[See also cards on non-GAAP/10(e) and Reg. G]

Question 4

What about data, estimates, data from independent parties?

Answer 4

Add a broad disclaimer (that can be repurposed for future presentations as content evolves) that these are based on estimates, etc. involving assumptions and limitations and have not been independently verified.

[See as an example AZYO Deck FLS markup on 12.7.20.]

Question 5

What is the relevant FLS safe harbor rule?

Answer 5

Private Securities Litigation Reform Act - §78u–5. Application of safe harbor for forward-looking statements; (c)(1)(A)(i)

(c) Safe harbor
(1) In general
Except as provided in subsection (b) of this section, in any private action arising under this chapter that is based on an untrue statement of a material fact or omission of a material fact necessary to make the statement not misleading, a person referred to in subsection (a) of this section shall not be liable with respect to any forward-looking statement, whether written or oral, if and to the extent that—
(A) the forward-looking statement is—

(i) identified as a forward-looking statement, and is accompanied by meaningful cautionary statements identifying important factors that could cause actual results to differ materially from those in the forward-looking statement; or
(ii) immaterial; or

Question 6

What if client asks to streamline safe harbor in press release?

Answer 6

Example when this is suitable includes a joint press release with another company (see Precision, Eagle Transaction 8-K in Nov. 2020).