Q: May the Private Securities Litigation Reform Act of 1995 (PSLRA) be relied upon for disclosures made in tender offers or 13e-3 going-private transactions?

A: No. Disclosure made in connection with a tender offer or a going private transaction is not entitled to the safe harbor provisions of the PSLRA. The Act does not apply to statements made in connection with a tender offer. See Section 21E(b)(2)(C) of the Securities Exchange Act of 1934. Similarly, the Act does not apply to statements made in connection with a going private transaction. See Sec. 21E(b)(1)(E) of the Exchange Act. Registrants should not refer to the PSLRA in disclosure made in connection with a tender offer or a going private transaction, including press releases, offers to purchase, and proxy materials.

Q: Business combinations involving only cash as consideration are subject to Regulation FD, while those involving registered securities are not. May a party to a proposed business combination rely on the registered offering exemption under Rule 100(b)(2)(iv) of Regulation FD if it has not decided whether it will offer registered securities as consideration?

A: No. Parties that have not decided whether to offer registered securities as consideration in connection with a proposed business combination may not rely on the registered offering exemption under Regulation FD when issuing communications. This exemption is available only when the parties have a bona fide intent to offer securities in the transaction. As a result, a potential acquiror that publicly announces its intention to acquire a company without specifying whether it will offer cash, registered securities, or a combination must comply with Regulation FD until it decides to offer registered securities as consideration.