What types of Section 382 Forward-Looking Statements Do Companies Make?

Section 382 Forward-Looking Statements.  Public companies routinely make forward-looking statements in their SEC filings.  Forward-looking statements  as defined under the U.S. federal securities laws (Private Securities Litigation Reform Act of 1995) are subject to the safe harbors created by such laws.

Forward-looking statements are based on estimates, projection,s beliefs, and assumptions.  A few examples include, litigation, business outlook, a Company’s ability to control costs and increase profitability, etc…

But do companies actually make Section 382 Forward-looking statements?  Yes.  So what type of language do they use?  What do these forward-looking statements they look like?  We did some digging and came across a variety of Section 382 Forward-looking statements.  In general, the statements tend to very specific if the Company has an NOL Rights Plan (also referred to as a “NOL Poison Pill“) in place.  Examples include:

  • a company’s ability to use its net operating losses to offset future tax liabilities,
  • limitations on the ability to utilize net operating losses due to an ownership change under Internal Revenue Code Section 382,
  • the Company’s ability to use NOLs in future years to offset a large portion of U.S. federal income tax and the Company’s expectations regarding the Plan,
  • the difficulty of determining all of the facts relative to Sections 382 and 383 of the Internal Revenue Code, unreported buying and selling activity by shareholders and unanticipated interpretations of the Internal Revenue Code and related U.S. Treasury regulations,
  • the potential loss of tax benefits if we experience an “ownership change” under Section 382 of the Internal Revenue Code of 1986, as amended,
  • our ability to preserve and utilize our tax net operating loss carry-forwards,
  • particular risks and uncertainties that could cause our actual future results to differ materially from those expressed in our forward-looking statements include, but are not limited to: the difficulty of determining all of the facts relative to Sections 382 and 383 of the Internal Revenue Code, unreported buying and selling activity by stockholders and unanticipated interpretations of the Internal Revenue Code and regulations, our ability to generate taxable income to utilize all or a portion of the NOLs prior to the expiration thereof, the possibility that the Rights Plan may not successfully deter stockholders from triggering an ownership change through the purchase of common stock, risks associated with the enforceability of the Rights Plan under Delaware law or other applicable law, risks that the Rights Plan may have an adverse effect on the value of our common stock

Here are a few recent examples:

 

 

 

 

 

 

 

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