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* 4th quarter 2009 EPS was ($1.22), which included a non-cash goodwill impairment charge in our Beef segment of $560 million, or $1.50 per share. * 4th quarter 2009 EPS excluding the goodwill impairment charge was $0.28, as compared to $0.13 last year * Excluding the goodwill impairment charge, all operating segments were profitable for the quarter: * Chicken operating income $32 million, or 1.2% of sales * Beef operating income $120 million, or 4.0% of sales * Pork operating income $48 million, or 5.5% of sales * Prepared Foods operating income $39 million, or 5.3% of sales * Operations generated more than $1.0 billion of cash flows in fiscal 2009
SPRINGDALE, Ark., Nov. 23, 2009 (GLOBE NEWSWIRE) -- Tyson Foods, Inc. (NYSE:TSN - News), today reported the following results:
(in millions, except per share data)
Fourth Quarter 12 Months
---------------- ----------------
2009 2008 2009 2008
---------------- ----------------
Sales $7,214 $7,201 $26,704 $26,862
Operating Income (Loss) (322) 138 (215) 331
Income (Loss) from Continuing
Operations (455) 45 (536) 86
Income (Loss) from Discontinued
Operation -- 3 (1) --
---------------- ----------------
Net Income (Loss) $(455) $48 $(537) $86
Earnings (Loss) Per Diluted Share:
Earnings (Loss) from Continuing
Operations $(1.22) $0.12 $(1.44) $0.24
Earnings from Discontinued
Operation -- 0.01 -- --
---------------- ----------------
Net Income (Loss) $(1.22) $0.13 $(1.44) $0.24
---------------- ----------------
Goodwill Impairment Charge (1.50) -- (1.50) --
---------------- ----------------
Net Income excluding Goodwill
Impairment Charge $0.28 $0.13 $0.06 $0.24
---------------- ----------------
* Fourth Quarter and 12 Months Fiscal 2009 - Included $560 million,
or $1.50 per share, related to a non-cash goodwill impairment
charge recorded in our Beef segment. The recent disruptions in
global credit and other financial markets and deterioration of
economic conditions resulted in a significant increase in our
discount rate used in the goodwill valuation, which led to partial
impairment of our Beef segment's goodwill.
* 12 Months Fiscal 2009 - Included $15 million, or $0.02 per diluted
share, of pretax charges related to a plant closing.
* 12 Months Fiscal 2009 - Loss from discontinued operation included
a $10 million, or $0.02 per diluted share, of pretax loss on sale
of Lakeside Farm Industries.
"We have made tremendous progress in a relatively short period of time," said Leland Tollett, who on Thursday stepped down after serving 11 months as interim president and chief executive officer of Tyson Foods. "I have complete confidence that the new management team will have a positive impact as the company moves forward."
"Our operating cash flow exceeded $1 billion in fiscal 2009, which helped us make progress on our debt level," said Donnie Smith, Tyson's new president and chief executive officer. "All operating segments were profitable in the fourth quarter, with Beef, Pork and Prepared Foods within or above historical operating margin ranges, excluding the goodwill impairment. These three segments are operating very well, and measures are in place for more improvement in our Chicken segment. The team knows what to do, and now it's a matter of execution."
"Fiscal 2010 should be a much better year," according to Jim Lochner, Tyson's new chief operating officer. "We think Beef, Pork and Prepared Foods will continue with a solid performance, and we expect the steps we've taken to improve Chicken will manifest themselves. Also, USDA data point to lower overall protein supplies, and there is potential for good demand improvement as the global economy recovers."
Our accounting cycle resulted in a 14-week fourth quarter and 53-week year in fiscal 2009, as compared to a 13-week fourth quarter and 52-week year in fiscal 2008.
Segment Performance Overview (in millions)
------------------------------------------
---------------------------------------------------------------------
Sales
(for the fourth quarter and 12 months ended October 3, 2009, and
September 27, 2008)
---------------------------------------------------------------------
Fourth Quarter 12 Months
-----------------------------------------------------------
Avg. Avg.
Volume Price Volume Price
2009 2008 Change Change 2009 2008 Change Change
-----------------------------------------------------------
Chicken $2,649 $2,383 10.4% 0.6% 9,660 $8,900 8.8% (0.2)%
Beef 2,967 3,101 14.0% (16.0)% 10,782 11,664 0.5% (8.0)%
Pork 865 1,000 13.4% (23.8)% 3,426 3,587 1.7% (6.1)%
Prepared
Foods 733 717 11.7% (8.4)% 2,836 2,711 5.2% (0.6)%
-----------------------------------------------------------
Total $7,214 $7,201 12.2% (10.7)% $26,704 $26,862 4.4% (4.8)%
-----------------------------------------------------------
---------------------------------------------------------------------
Operating Income (Loss)
(for the fourth quarter and 12 months ended October 3, 2009, and
September 27, 2008)
---------------------------------------------------------------------
Fourth Quarter 12 Months
---------------------------------------------------------------------
Operating Operating
Margin Margin
2009 2008 2009 2008 2009 2008 2009 2008
-----------------------------------------------------------
Chicken $32 $(91) 1.2% (3.8)% $(157) $(118) (1.6)% (1.3)%
Beef (440) 159 (14.8)% 5.1% (346) 106 (3.2)% 0.9%
Pork 48 75 5.5% 7.5% 160 280 4.7% 7.8%
Prepared
Foods 39 (5) 5.3% (0.7)% 133 63 4.7% 2.3%
Other (1) -- n/a n/a (5) -- n/a n/a
-----------------------------------------------------------
Total $(322) $138 (4.5)% 1.9% $(215) $331 (0.8)% 1.2%
-----------------------------------------------------------
Operating results excluding $560 million goodwill impairment charge:
-----------------------------------------------------------
Beef $120 $159 4.0% 5.1% $214 $106 2.0% 0.9%
-----------------------------------------------------------
Total $238 $138 3.3% 1.9% $345 $331 1.3% 1.2%
-----------------------------------------------------------
Fiscal 2010 Outlook
Segments:
Chicken - At the end of fiscal 2009, industry pullet placements were down 5-6% as a result of weaker demand. However, we expect demand will improve as we get further into fiscal 2010, and we expect the pricing environment to improve aided by cold storage inventories which are down relative to the levels we have seen over the last several years. We also currently expect to see grain costs down as compared to fiscal 2009. Additionally, we will continue to focus on making operational improvements to help maximize our margins.
Beef - While we expect a reduction in cattle supplies of 1-2% in fiscal 2010, we do not expect a significant change in the fundamentals of our Beef business as it relates to fiscal 2009. We expect adequate supplies to operate our plants. We will manage our spreads by maximizing our revenues through product mix, minimizing our operating costs, while keeping our focus on quality and customer service.
Pork - We expect to see a gradual decline in hog supplies through the first half of fiscal 2010, which will accelerate into the second half of fiscal 2010, resulting in industry slaughter slightly higher than 2007 (or roughly 4% less than fiscal 2009). However, we still believe we will have adequate supplies in the regions in which we operate. We will manage our spreads by continuing to control our costs and maximizing our revenues.
Prepared Foods - Raw material costs will likely increase in fiscal 2010, but we have made some changes in our sales contracts that move us further away from fixed price contracts toward formula pricing, which will better enable us to absorb rising raw material costs. With the changes we have made with our sales contracts and the operational efficiencies we made during fiscal 2009, we expect strong results in fiscal 2010.
Interest Expense - approximately $320 million
Effective Tax Rate - approximately 38%
Capital Spending - approximately $600 million
Segment Performance Review
--------------------------
Chicken
in millions
---------------------------------------------------------------------
Three Months Ended 12 Months Ended
---------------------------------------------------------------------
Oct. 3, Sept. 27, Oct. 3, Sept. 27,
2009 2008 Change 2009 2008 Change
---------------------------------------------------------------------
Sales $2,649 $2,383 $266 $9,660 $8,900 $760
Sales Volume
Change 10.4% 8.8%
Avg. Sales Price
Change 0.6% (0.2)%
Operating Income
(Loss) $32 $(91) $123 $(157) $(118) $(39)
Operating Margin 1.2% (3.8)% (1.6)% (1.3)%
----------------------------------------------------------------------
12 months of fiscal 2008
* Included $26 million of charges related to: plant closings;
impairments of unimproved real property and software; and
severance.
Fourth quarter and 12 months - Fiscal 2009 vs Fiscal 2008
* Sales Volume - The increase in sales volume for both the fourth
quarter and 12 months of fiscal 2009 was due to the extra week in
fiscal 2009, as well as inventory reductions and sales volume
related to recent acquisitions.
* Average Sales Price - The inventory reductions and recent
acquisitions lowered the average sales price, as most of the
inventory reduction related to commodity products shipped
internationally and sales volume from recent acquisitions was on
lower priced products.
* Operating Income (Loss) -
* Operational Improvements - Operating results were positively
impacted by operational improvements, which included: yield, mix
and live production performance improvements; additional
processing flexibility; and reduced interplant product movement.
* Derivative Activities - Operating results included the following
amounts for commodity risk management activities related to
grain and energy purchases. These amounts exclude the impact
from related physical purchase transactions, which impact
current and future period operating results.
Income/(Loss) - in millions Qtr YTD
------------------
2009 $(9) $(257)
2008 65 206
------------------
Decline $(74) $(463)
* Grain Costs - As compared to the same periods of fiscal 2008,
operating results were positively impacted in the fourth quarter
and 12 months of fiscal 2009 by a decrease in grain costs of
$109 million and $28 million, respectively.
* SG&A Expenses - We reduced our selling, general and
administrative expenses during fiscal 2009 by approximately
$37 million.
Beef
in millions
---------------------------------------------------------------------
Three Months Ended 12 Months Ended
---------------------------------------------------------------------
Oct. 3, Sept. 27, Oct. 3, Sept. 27,
2009 2008 Change 2009 2008 Change
---------------------------------------------------------------------
Sales $2,967 $3,101 $(134) $10,782 $11,664 $(882)
Sales Volume Change 14.0% 0.5%
Avg. Sales Price
Change (16.0)% (8.0)%
Operating Income
(Loss) $(440) $ 159 $(599) $(346) $106 $(452)
Operating Margin (14.8)% 5.1% (3.2)% 0.9%
---------------------------------------------------------------------
Operating results excluding $560 million goodwill impairment charge:
Operating Income $120 $159 $(39) $214 $106 $108
Operating Margin 4.0% 5.1% 2.0% 0.9%
---------------------------------------------------------------------
Fourth quarter and 12 months of fiscal 2009
* Included $560 million non-cash charge related to the impairment of
goodwill.
Fourth quarter of fiscal 2008
* Included $8 million charge related to the impairment of an
intangible asset.
12 months of fiscal 2008
* Included $35 million of charges related to: plant restructuring,
impairments of packaging equipment and intangible assets, and
severance.
Fourth quarter and 12 months - Fiscal 2009 vs Fiscal 2008
* Sales and Operating Income (Loss) -
* While our average sales prices have decreased as compared to the
same periods in 2008, we have still maintained a margin as the
average live costs decreased in line with the drop in our
average sales price. Excluding the $560 million non-cash
goodwill impairment charge, our operating margins were 4.0% and
2.0%, respectively, for the fourth quarter and 12 months of
fiscal 2009. The fourth quarter operating margin exceeded our
historical normalized operating margin range, while the 12
months of fiscal 2009 was within the historical normalized
operating margin range, which is 1.5-3.0%.
* Derivative Activities - Operating results included the following
amounts for commodity risk management activities related to
forward futures contracts for live cattle. These amounts exclude
the impact from related physical sale and purchase transactions,
which impact current and future period operating results.
Income - in millions Qtr YTD
------------------
2009 $5 $102
2008 73 53
------------------
Improvement / (Decline) $(68) $49
Pork
in millions
---------------------------------------------------------------------
Three Months Ended 12 Months Ended
---------------------------------------------------------------------
Oct. 3, Sept. 27, Oct. 3, Sept. 27,
2009 2008 Change 2009 2008 Change
---------------------------------------------------------------------
Sales $865 $1,000 $(135) $3,426 $3,587 $(161)
Sales Volume
Change 13.4% 1.7%
Avg. Sales Price
Change (23.8)% (6.1)%
Operating Income $48 $75 $(27) $160 $280 $(120)
Operating Margin 5.5% 7.5% 4.7% 7.8%
---------------------------------------------------------------------
12 months of fiscal 2008
* Included $5 million of charges related to impairment of packaging
equipment and severance.
Fourth quarter and 12 months - Fiscal 2009 vs Fiscal 2008
* Sales and Operating Income -
* Operating results for fiscal 2009 were strong, but down when
compared to the record year we had in fiscal 2008. While sales
volume increased compared to the fourth quarter of fiscal 2008
and were relatively flat versus the 12 months of fiscal 2008,
results were negatively impacted by a decrease in our average
sales prices, which were only partially offset by the decrease
in average live costs. Our operating margins were 5.5% and 4.7%,
respectively, for the fourth quarter and 12 months of fiscal
2009. The fourth quarter operating margin exceeded our
historical normalized operating margin range, while the 12
months of fiscal 2009 was within the historical normalized
operating margin range, which is 3.0-5.0%.
* Derivative Activities - Operating results included the following
amounts for commodity risk management activities related to
forward futures contracts for live hogs. These amounts exclude
the impact from related physical sale and purchase transactions,
which impact current and future period operating results.
Income - in millions Qtr YTD
------------------
2009 $8 $55
2008 13 95
------------------
Decline $(5) $(40)
Prepared Foods
in millions
---------------------------------------------------------------------
Three Months Ended 12 Months Ended
---------------------------------------------------------------------
Oct. 3, Sept. 27, Oct. 3, Sept. 27,
2009 2008 Change 2009 2008 Change
---------------------------------------------------------------------
Sales $733 $717 $16 $2,836 $2,711 $125
Sales Volume
Change 11.7% 5.2%
Avg. Sales Price
Change (8.4)% (0.6)%
Operating Income
(Loss) $39 $(5) $44 $133 $63 $70
Operating Margin 5.3% (0.7)% 4.7% 2.3%
---------------------------------------------------------------------
12 months of fiscal 2009
* Included $15 million charge related to closing our Ponca City,
Oklahoma, processed meats plant.
12 months of fiscal 2008
* Included $10 million of charges related to flood damage, an
intangible asset impairment and severance.
Fourth quarter and 12 months - Fiscal 2009 vs Fiscal 2008
* Sales and operating income improved due to an increase in sales
volume, as well as a reduction in raw material costs that exceeded
the decrease in our average sales prices. In addition, we made
several operational improvements in fiscal 2009 that allow us to
run our plants more efficiently. We began realizing the majority
of these improvements in our operating results during the fourth
quarter fiscal 2009.
TYSON FOODS, INC.
CONSOLIDATED CONDENSED STATEMENTS OF INCOME
(In millions, except per share data)
(Unaudited)
Three Months Ended 12 Months Ended
------------------ ------------------
Oct. 3, Sept. 27, Oct. 3, Sept. 27,
2009 2008 2009 2008
-------- -------- -------- --------
Sales $ 7,214 $ 7,201 $26,704 $26,862
Cost of Sales 6,752 6,844 25,501 25,616
-------- -------- -------- --------
462 357 1,203 1,246
Selling, General and
Administrative 224 219 841 879
Goodwill impairment 560 -- 560 --
Other Charges -- -- 17 36
-------- -------- -------- --------
Operating Income (Loss) (322) 138 (215) 331
Other (Income) Expense:
Interest income (3) (2) (17) (9)
Interest expense 85 56 310 215
Other, net -- (5) 18 (29)
-------- -------- -------- --------
Income (Loss) from Continuing
Operations before Income Taxes
and Minority Interest (404) 89 (526) 154
Income Tax Expense 52 44 14 68
-------- -------- -------- --------
Income (Loss) from Continuing
Operations before Minority
Interest (456) 45 (540) 86
Minority Interest (1) -- (4) --
-------- -------- -------- --------
Income (Loss) from Continuing
Operations (455) 45 (536) 86
Income (Loss) from Discontinued
Operation -- 3 (1) --
-------- -------- -------- --------
Net Income (Loss) $ (455) $ 48 $ (537) $ 86
======== ======== ======== ========
Weighted Average Shares
Outstanding:
Class A Basic 302 283 302 281
Class B Basic 70 70 70 70
Diluted 372 358 372 356
Earnings (Loss) Per Share from
Continuing Operations:
Class A Basic $ (1.25) $ 0.13 $ (1.47) $ 0.25
Class B Basic $ (1.12) $ 0.11 $ (1.32) $ 0.22
Diluted $ (1.22) $ 0.12 $ (1.44) $ 0.24
Earnings Per Share from
Discontinued Operation:
Class A Basic $ -- $ 0.01 $ -- $ --
Class B Basic $ -- $ 0.01 $ -- $ --
Diluted $ -- $ 0.01 $ -- $ --
Net Earnings (Loss) Per Share:
Class A Basic $ (1.25) $ 0.14 $ (1.47) $ 0.25
Class B Basic $ (1.12) $ 0.12 $ (1.32) $ 0.22
Diluted $ (1.22) $ 0.13 $ (1.44) $ 0.24
Cash Dividends Per Share:
Class A $ 0.040 $ 0.040 $ 0.160 $ 0.160
Class B $ 0.036 $ 0.036 $ 0.144 $ 0.144
Sales Growth (Decline) 0.2% (0.6)%
Margins: (Percent of Sales)
Gross Profit 6.4% 5.0% 4.5% 4.6%
Operating Income (Loss) (4.5)% 1.9% (0.8)% 1.2%
Net Income (Loss) (6.3)% 0.7% (2.0)% 0.3%
Effective Tax Rate from
Continuing Operations (13.0)% 50.1% (2.7)% 44.6%
TYSON FOODS, INC.
CONSOLIDATED CONDENSED BALANCE SHEETS
(In millions)
(Unaudited)
October 3, September 27,
2009 2008
------------ ------------
Assets
Current Assets:
Cash and cash equivalents $ 1,004 $ 250
Restricted cash 140 --
Accounts receivable, net 1,100 1,271
Inventories 2,009 2,538
Other current assets 122 143
Assets of discontinued operation held for
sale -- 159
------------ ------------
Total Current Assets 4,375 4,361
Restricted cash 43 --
Net Property, Plant and Equipment 3,576 3,519
Goodwill 1,917 2,511
Intangible Assets 187 128
Other Assets 497 331
------------ ------------
Total Assets $ 10,595 $ 10,850
============ ============
Liabilities and Shareholders' Equity
Current Liabilities:
Current debt $ 219 $ 8
Trade accounts payable 1,013 1,217
Other current liabilities 761 878
------------ ------------
Total Current Liabilities 1,993 2,103
Long-Term Debt 3,333 2,888
Deferred Income Taxes 280 291
Other Liabilities 539 525
Minority Interest 98 29
Shareholders' Equity 4,352 5,014
------------ ------------
Total Liabilities and Shareholders'
Equity $ 10,595 $ 10,850
============ ============
TYSON FOODS, INC.
CONSOLIDATED CONDENSED STATEMENTS OF CASH FLOWS
(In millions)
(Unaudited)
12 Months Ended
--------------------------
October 3, September 27,
2009 2008
------------ ------------
Cash Flows From Operating Activities:
Net income (loss) $ (537) $ 86
Depreciation and amortization 496 493
Deferred income taxes (26) 35
Impairment of goodwill 560 --
Other, net 100 83
Net changes in working capital 432 (409)
------------ ------------
Cash Provided by Operating Activities 1,025 288
------------ ------------
Cash Flows From Investing Activities:
Additions to property, plant and equipment (368) (425)
Proceeds from sale of property, plant and
equipment 9 26
Proceeds from sale of investments 15 22
Purchases of marketable securities (37) (115)
Proceeds from sale of marketable
securities 56 112
Change in restricted cash to be used for
investing activities (43) --
Acquisitions, net of cash acquired (93) (17)
Proceeds from sale of discontinued
operation 75 --
Other, net (41) (2)
------------ ------------
Cash Used for Investing Activities (427) (399)
------------ ------------
Cash Flows From Financing Activities:
Net borrowings (payments) on revolving
credit facilities 15 (213)
Payments of debt (380) (147)
Net proceeds from borrowings of debt 852 449
Net proceeds from Class A Stock offering -- 274
Convertible note hedge transactions -- (94)
Warrant transactions -- 44
Debt issuance costs (59) --
Purchases of treasury shares (19) (30)
Dividends (60) (56)
Change in negative book cash balances (65) 67
Change in restricted cash to be used for
financing activities (140) --
Stock options exercised and other, net 6 27
------------ ------------
Cash Provided by Financing Activities 150 321
------------ ------------
Effect of Exchange Rate Change on Cash 6 (2)
------------ ------------
Increase in Cash and Cash Equivalents 754 208
Cash and Cash Equivalents at Beginning of
Year 250 42
------------ ------------
Cash and Cash Equivalents at End of Year $ 1,004 $ 250
============ ============
Tyson Foods, Inc., founded in 1935 with headquarters in Springdale, Arkansas, is the world's largest processor and marketer of chicken, beef and pork, the second-largest food production company in the Fortune 500 and a member of the S&P 500. The company produces a wide variety of protein-based and prepared food products and is the recognized market leader in the retail and foodservice markets it serves. Tyson provides products and service to customers throughout the United States and more than 90 countries. The company has approximately 117,000 Team Members employed at more than 400 facilities and offices in the United States and around the world. Through its Core Values, Code of Conduct and Team Member Bill of Rights, Tyson strives to operate with integrity and trust and is committed to creating value for its shareholders, customers and Team Members. The company also strives to be faith-friendly, provide a safe work environment and serve as stewards of the animals, land and environment entrusted to it.
The Tyson Foods, Inc. logo is available at http://www.globenewswire.com/newsroom/prs/?pkgid=3224
A conference call to discuss the Company's financial results will be held at 9 a.m. Eastern Monday, November 23, 2009. To listen live via telephone, call 888-324-8506. A pass code and the leader's name will be required to join the call. The pass code is Tyson Foods and the leader's name is Ruth Ann Wisener. International callers dial 517-308-9399. The call also will be webcast live on the Internet at http://ir.tyson.com. Financial information, such as this news release, as well as other supplemental data, including Company distribution channel information, can be accessed from the Company's web site at http://ir.tyson.com. A telephone replay will be available through December 23 at 800-873-2049. International callers dial 402-220-5369.
Forward-Looking Statements
Certain information contained in the press release may constitute forward-looking statements, such as statements relating to expected earnings and results. These forward-looking statements are subject to a number of factors and uncertainties which could cause our actual results and experiences to differ materially from the anticipated results and expectations, expressed in such forward-looking statements. We wish to caution readers not to place undue reliance on any forward-looking statements, which speak only as of the date made. Among the factors that may cause actual results and experiences to differ from anticipated results and expectations expressed in such forward-looking statements are the following: (i) the effect of, or changes in, general economic conditions; (ii) fluctuations in the cost and availability of inputs and raw materials, such as live cattle, live swine, feed grains (including corn and soybean meal) and energy; (iii) market conditions for finished products, including competition from other global and domestic food processors, supply and pricing of competing products and alternative proteins and demand for alternative proteins; (iv) successful rationalization of existing facilities and operating efficiencies of the facilities; (v) risks associated with our commodity trading risk management activities; (vi) access to foreign markets together with foreign economic conditions, including currency fluctuations, import/export restrictions and foreign politics; (vii) outbreak of a livestock disease (such as avian influenza (AI) or bovine spongiform encephalopathy (BSE)), which could have an effect on livestock we own, the availability of livestock we purchase, consumer perception of certain protein products or our ability to access certain domestic and foreign markets; (viii) changes in availability and relative costs of labor and contract growers and our ability to maintain good relationships with employees, labor unions, contract growers and independent producers providing us livestock; (ix) issues related to food safety, including costs resulting from product recalls, regulatory compliance and any related claims or litigation; (x) changes in consumer preference and diets and our ability to identify and react to consumer trends; (xi) significant marketing plan changes by large customers or loss of one or more large customers; (xii) adverse results from litigation; (xiii) risks associated with leverage, including cost increases due to rising interest rates or changes in debt ratings or outlook; (xiv) compliance with and changes to regulations and laws (both domestic and foreign), including changes in accounting standards, tax laws, environmental laws and occupational, health and safety laws; (xv) our ability to make effective acquisitions or joint ventures and successfully integrate newly acquired businesses into existing operations; (xvi) effectiveness of advertising and marketing programs; and (xvii) those factors listed under Item 1A. "Risk Factors" included in our October 3, 2009, Annual Report filed on Form 10-K.
Tyson Foods, Inc.
Media Contact:
Gary Mickelson
479-290-6111
Investor Contact:
Ruth Ann Wisener
479-290-4235
Copyright © 2010 GlobeNewswire. All rights reserved. Redistribution of this content is expressly prohibited without prior written consent. GlobeNewswire makes no claims concerning the accuracy or validity of the information, and shall not be held liable for any errors, delays, omissions or use thereof.