2011 OFII General Counsel Conference Washington, D.C. ACQUISITIONS OF U.S. PUBLIC COMPANIES BY NON-U.S. COMPANIES Certain Key Considerations Ariel Deckelbaum Stephen Fraidin

2011 OFII General Counsel Conference Washington, D.C. Preliminary Matters Relating to Acquisitions of U.S. Public Companies by Non-U.S. Companies Political Regulatory and antitrust Tax Stakebuilding Engage experienced advisors familiar with U.S. custom and practice 2

2011 OFII General Counsel Conference Washington, D.C. Transaction Structures Transaction structure driven by timing of regulatory process and political sensitivities –Two-Step Tender/Exchange Offers Offers speed advantage, if there are no regulatory delays –One-Step Mergers –Hybrid Structures (Burger King structure) –Joint ventures 3

2011 OFII General Counsel Conference Washington, D.C. Deal Protections Voting agreements with key shareholders Top-up option agreements No-shop covenants Fiduciary outs and termination fees 4

2011 OFII General Counsel Conference Washington, D.C. Takeover Defenses Shareholder Rights Plan (“Poison Pill”) Charter and bylaw provisions Political and regulatory defenses State statutes 5

2011 OFII General Counsel Conference Washington, D.C. Unusual Aspects/Special Considerations for U.S. M&A Litigation Financing Role of hedge funds Role of financial advisory services Insider trading Regulation FD “Freeze-out” law Acquisitions of distressed companies 6

2011 OFII General Counsel Conference Washington, D.C. Regulatory Framework Federal securities laws –Securities Act –Tender offer rules –Proxy rules –13D rules Hart-Scott-Rodino –Jointly administered by U.S. Federal Trade Commission and U.S. Department of Justice –Mandatory filing if value thresholds are met 7

2011 OFII General Counsel Conference Washington, D.C. Regulatory Framework (cont’d) Hart-Scott-Rodino (cont’d) –Filing includes documents prepared by or for officers or directors for evaluating the transaction –30 day waiting period, after which parties can close if no “second request” is made by the government Exon-Florio Amendment (CFIUS) –CFIUS is a federal inter-agency committee that reviews foreign acquisitions of U.S. businesses for national security concerns –CFIUS has the ability, very rarely exercised, to block or unwind a transaction or impose conditions on a transaction 8

2011 OFII General Counsel Conference Washington, D.C. Regulatory Framework (cont’d) Exon-Florio Amendment (CFIUS) (cont’d) –The filing of a CFIUS notice is a voluntary event –Most parties decide to file when the transaction raises national security concerns –Sensitive industries Transportation/ports Energy Advanced technologies Critical infrastructure Defense contractors 9

2011 OFII General Counsel Conference Washington, D.C. Regulatory Framework (cont’d) Regulated industries (banking, broadcasting, insurance, utilities, coastal shipping, domestic airlines, broker- dealer, etc.) 10