International M&A in High Tech and Energy Sectors From a European perspective ABA, Eilat Conference May 27 th, 2013, Jan-Willem van Rooij

A European perspective 1.Deal Terms and Practices 2.High Tech Transactions 3.E&P Transactions 2

Deal Terms and Practices (1) Common Law versus Civil Law, some general obervations: 3 TopicCommon LawCivil Law Interpretation-Textual interpretation -Pre contractual exchanges not relevant -First: common intention of parties -Second: reasonable interpretation -Pre-contractual exchanges are relevant EffortsDefined terms of best and reasonable efforts Depends on interpretation

Deal Terms and Practices (2) 4 TopicCommon LawCivil Law Precontractual liabilityNot applicable -No duty to negotiate in good faith -No liability in case of termination Applicable -Duty to negotiate in good faith -Liability in case of termination of negotiations LOI-In general not legally binding -Aim to arrange for exclusivity, etc. -Legally binding -Aim to exclude pre contractual liability DisclosureNo duty to disclose information Duty to disclose information

Deal Terms and Practices (3) 5 TopicCommon LawCivil Law WarrantyBreach gives right to claim damages Breach gives right to all available remedies Indemnity-Payment of a sum -Rules on damages not applicable -Ordinary contract clause -Less sharp/clear distinction

Deal Terms and Practices (4) 2013 European Private Target M&A Deal Points Study (to be released soon) For transactions signed or closed in 2009, 2010 and 2011 Minimal transaction value of EUR 20 million Target or substantial part of assets or operations in Europe 2011 Private Target M&A Deal Points Study For transactions closed in 2011 Minimal transaction value of USD 25 million 6

Deal Terms and Practices (5) Some observations between US and EU deal points: * Was 38% in 2010 European Private Target M&A Deal Points Study 7 Deal PointUS 2011 StudyEU 2013 Study Post closing PPA82%50% Material Adverse Condition - Included - Subset: MAC defined 93% 97% 24% 90%* No legal proceedings condition69%12% Legal opinion condition27%1% Sandbagging -Pro sandbagging clause -Anti-sandbagging clause 41% 5% 22% 47%

Deal terms and practices (3) 8 Deal PointUS 2011 StudyEU 2013 Study Baskets -Threshold -Deductible -Combination -No basket 31% 59% 5% 66% 13% 12% 9% Eligible claim threshold17%88% Basket mean (% against transaction value) 0.65%0.94% Cap mean (% against transaction value) 18.88%34%

High Tech Transactions in Europe Volumes and values have decreased PE has lost its appetite Media & entertainment, health care and industrial automation seem to be the leading technology acquirers Less acquisitions, more joint ventures 9

High Tech Transaction Considerations EU Regulations: EU Trademark Protection EU Patent Protection EU Model and Design Protection EU Data Protection Note: EU Software not protected by patents Consider: Tax structuring 10

E&P in Europe -Non regulated market -Shale gas seems to be on the rise -EU procurement law / transparency -EU safety regulation 11

E & P in the Netherlands -The Netherlands is one of the major gas producers in Europe -Obligatory state participation of 40% -State profit share of 50% -Small field policy -Separate licenses for production, exploration and storage -Fallow acreage, use it or loose it -Transfer of license requires prior state approval (not for indirect transfers!) 12

E & P in the Netherlands 13

E & P transaction considerations -Pre-emptive rights -Transfer of license requires prior state approval (not for indirect transfer) -Abandonment & decommissioning liabilities and related security -Carry forward positions -Gas sales agreements -Cash calls and finance obligations -Follow acreage positions -Transportation agreements (non regulated) 14

E&P market (outlook) -Deal volumes remained stable in 2012 and are expected to increase in Large players will remain divesting North Sea assets -Many divestments expected/ongoing in oilfield services (often high tech) -Japan and China seem to be more active to ensure reliable energy supplies -Shale gas is under debate but may become a “game changer” in Europe as well -Decommissioning risks will probably increase 15

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