Sec 44-2087. Application of safe harbor for forward-looking statements; definitions

A. This section only applies to a forward-looking statement made by:

1. At the time that the statement is made, an issuer that is subject to the reporting requirements of section 13(a) or section 15(d) of the securities exchange act of 1934 (15 United States Code section 78m(a) or section 78o(d)).

2. A person acting on behalf of an issuer described in paragraph 1 of this subsection.

3. An outside reviewer who is retained by an issuer described in paragraph 1 of this subsection and who is making a statement on behalf of that issuer.

4. An underwriter of an issuer described in paragraph 1 of this subsection who uses information provided by the issuer or information derived from information provided by the issuer.

B. Except if specifically provided by rule or order of the commission, this section does not apply to a forward-looking statement if the statement is:

1. Made in connection with the issuer's business or operations and if any of the following applies to the issuer:

(a) At any time during the three consecutive years before the date on which the statement was first made, the issuer was convicted of a felony or misdemeanor pursuant to section 44-1961, subsection A, paragraph 8, or clauses (i) through (iv) of section 15(b)(4)(B) of the securities exchange act of 1934 (15 United States Code section 78o(b)(4)(B)), has been found to have violated or been made subject to an order, judgment or decree under section 44-1961, subsection A, paragraph 9, 10 or 11, or has been made the subject of a judicial or administrative decree or order arising out of a governmental action that prohibits future violations of the antifraud provisions of the federal, Arizona or other jurisdictions' securities laws, requires that the issuer cease and desist from violating the antifraud provisions of the federal, Arizona or other jurisdictions' securities laws or determines that the issuer violated the antifraud provisions of the federal, Arizona or other jurisdictions' securities laws.

(b) The issuer makes the forward-looking statement in connection with an offering of securities by a blank check company.

(c) The issuer issues penny stock.

(d) The issuer makes the forward-looking statement in connection with a roll up transaction.

(e) The issuer makes the forward-looking statement in connection with a going private transaction.

2. Included in a financial statement prepared in accordance with generally accepted accounting principles.

3. Contained in a registration statement of or issued by an investment company.

4. Made in connection with a tender offer.

5. Made in connection with an initial public offering.

6. Made in connection with an offering by or relating to the operations of a partnership, a limited liability company or a direct participation investment program.

7. Made in a disclosure of beneficial ownership in a report required to be filed with the SEC pursuant to section 13(d) of the securities exchange act of 1934 (15 United States Code section 78m(d)).

C. Except as provided in subsection B of this section, in any private action that arises under this chapter and that is based on an untrue statement of a material fact or an omission of a material fact necessary to make the statement not misleading, pursuant to subsection A of this section, a person, issuer, outside reviewer or underwriter is not liable for any written or oral forward-looking statement if and to the extent that either of the following exists:

1. The forward-looking statement is 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 the statement is immaterial.

2. The plaintiff fails to prove that the forward-looking statement if made by a natural person was made with actual knowledge by that person that the statement was false or misleading, or if made by a business entity, was made by or with the approval of an executive officer of that entity and was made or approved by that officer with actual knowledge by that officer that the statement was false or misleading.

D. In the case of an oral forward-looking statement made by an insurer that is subject to the reporting requirements of section 13(a) or section 15(d) of the securities exchange act of 1934, (15 United States Code section 78m(a) or section 78o(d)) or by a person acting on behalf of the issuer, the requirement set forth in subsection C, paragraph 1 of this section is satisfied if both of the following are true:

1. The oral forward-looking statement is accompanied by a cautionary statement that the oral statement is a forward-looking statement and that the actual results could differ materially from those projected in the forward-looking statement.

2. If the oral forward-looking statement is accompanied by an oral statement that additional information concerning factors that could cause actual results to differ materially from those in the forward-looking statement is contained in a readily available written document, the oral statement shall identify the document or the portion of the document that contains the additional information about those factors relating to the forward-looking statements and the written document shall contain a cautionary statement that satisfies the standard established in subsection C, paragraph 1 of this section.

E. Any document that is filed with the commission or the SEC or that is generally disseminated is readily available for purposes of subsection D of this section.

F. The exemption provided for in subsection C of this section is in addition to any exemption that the commission may establish by rule under subsection J of this section.

G. Nothing in this section imposes on any person a duty to update a forward-looking statement.

H. On any motion to dismiss based on subsection C of this section, the court shall consider any statement cited in the complaint and any cautionary statement that is not subject to material dispute and that is cited by the defendant accompanying the forward-looking statement.

I. In any private action arising under this chapter, the court shall stay discovery, other than discovery that is specifically directed to the applicability of the exemption provided by this section, during the pendency of any motion by a defendant for summary judgment that is based on the grounds that the statement or omission on which the complaint is based is a forward-looking statement within the meaning of this section and the exemption provided by this section precludes a claim for relief.

J. In addition to the exemptions provided by this section, the commission by rule may provide exemptions from or under any provision of this chapter, including liability that is based on a statement, projections or other forward-looking information, if the exemption is consistent with the public interest and the protection of investors, as determined by the commission.

K. Nothing in this section limits, either expressly or by implication, the authority of the commission to exercise similar authority or to adopt similar rules for forward-looking statements under any other statute under which the commission exercises rule making authority.

L. For the purposes of this section, unless the context otherwise requires:

1. "Forward-looking statement" means any of the following:

(a) A statement containing a projection of revenues, income, income loss, earnings, earnings per share, loss per share, capital expenditures, dividends, capital structure or other financial items.

(b) A statement of the plans and objectives of management for future operations, including plans or objectives relating to the products or services of the issuer.

(c) A statement of future economic performance, including any statement contained in a discussion and analysis of financial condition by the management or in the results of operations included pursuant to the rules of the commission or the rules and regulations of the SEC.

(d) Any statement of the assumptions underlying or relating to any statement described in subdivision (a), (b) or (c) of this paragraph.

(e) Any report issued by an outside reviewer retained by an issuer, to the extent that the report assesses a forward-looking statement made by the issuer.

(f) A statement containing a projection or estimate of other items specified by commission rule.

2. "Going private transaction" has the same meaning prescribed in the rules and regulations of the SEC issued pursuant to section 13(e) of the securities exchange act of 1934 (15 United States Code section 78m(e)).

3. "Investment company" has the same meaning prescribed in section 3(a) of the investment company act of 1940 (15 United States Code section 80a-3(a)).

4. "Person acting on behalf of an issuer" means any officer, director or employee of the issuer.

5. "Tender offer" has the same meaning prescribed in section 14(d) of the securities exchange act of 1934 (15 United States Code section 78n(d)).

6. The following terms have the same meaning prescribed in the rules of the commission:

(a) "Direct participation investment program".

(b) "Executive officer of an entity".

(c) "Initial public offering".

(d) "Limited liability company".

(e) "Partnership".

(f) "Penny stock".

(g) "Roll up transaction".