January 23, 2006

Disclaimers in Reaction to SEC’s Titan 21(a) Report

Since the SEC’s Titan 21(a) Report was issued in last March, many companies filing a merger document have included a disclaimer in those filings. We have posted a number of samples of these Titan disclaimers; there are many different versions of the same basic concept. Some companies are even putting this language directly into their merger agreements.

Note that a disclaimer typically provokes a standard SEC comment, such as “Delete the disclaimer in the [_th] paragraph on page [22] as it is inappropriate to advise stockholders that they are not entitled to rely on the disclosure in the [proxy statement]).” There are Titan legends that are acceptable to the SEC Staff if they don’t disclaim shareholders’ ability to rely.