Page:United States Statutes at Large Volume 109 Part 1.djvu/766

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109 STAT. 750 PUBLIC LAW 104r-67—DEC. 22, 1995 "(ii) has been made the subject of a judicial or administrative decree or order arising out of a governmental action that— "(I) prohibits future violations of the antifraud provisions of the securities laws; "(II) requires that the issuer cease and desist from violating the antifraud provisions of the securities laws; or "(III) determines that the issuer violated the antifraud provisions of the securities laws; "(B) makes the forward-looking statement in connection with an offering of securities by a blank check company; "(C) issues penny stock; "(D) makes the forward-looking statement in connection with a rollup transaction; or "(E) makes the forward-looking statement in connection with a going private transaction; or "(2) that is— "(A) included in a financial statement prepared in accordance with generally accepted accounting principles; "(B) contained in a registration statement of, or otherwise issued by, an investment company; "(C) made in connection with a tender offer; "(D) made in connection with an initial public offering; "(E) made in connection with an offering by, or relating to the operations of, a partnership, limited liability company, or a direct participation investment program; or "(F) made in a disclosure of beneficial ownership in a report required to be filed with the Commission pursuant to section 13(d) of the Securities Exchange Act of 1934. "(c) SAFE HARBOR.— "(1) IN GENERAL.— Except as provided in subsection (b), in any private action arising under this title 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) 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 forwardlooking statement; or "(ii) immaterial; or "(B) the plaintiff fails to prove that the forward-looking statement— "(i) if made by a natural person, was made with actual knowledge by that person that the statement was false or misleading; or "(ii) if made by a business entity; was— "(I) made by or with the approval of an executive officer of that entity, and "(II) made or approved by such officer with actual knowledge by that officer that the statement was false or misleading.