Goal of our presentation is to help you as in-house counsel grasp the process and framework for approaching a cross-border technology transaction What is a cross-border transaction? Entity acquiring an entity or business in another country In technology transactions, domestic transactions often have significant cross-border elements What is different about a cross-border acquisition? None of the usual rules apply Complexity increases burden on counsel Assess potential issues as early as possible

1. Jason Rabbitt-Tomita, Carrie LeRoy, Michelle Sayer
March 2017
Managing cross-
border acquisitions of
technology
companies

2. Introduction
 Goal of our presentation is to help you as in-house counsel grasp the
process and framework for approaching a cross-border technology
transaction
 What is a cross-border transaction?
– Entity acquiring an entity or business in another country
– In technology transactions, domestic transactions often have significant
cross-border elements
 What is different about a cross-border acquisition?
– None of the usual rules apply
– Complexity increases burden on counsel
– Assess potential issues as early as possible
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3. Overview
 Process and timing
 Due diligence
 Intellectual property
 Governmental approvals
 Employment matters
 Dispute resolution
 Tax structuring
2

4. Process and timing
3

5. 4
Counsel should quickly assess the key differences in process and timing
raised by a cross-border acquisition and set expectations appropriately
 Structuring and tax analysis
 Communication is key
 How culture, time zones, and holidays affect negotiations and closing
mechanics
 First entry into a new jurisdiction may bring additional burdens post-
closing
 Complexity results in increased costs (legal, accounting, finance)
 Currency fluctuation issues
 Select appropriate external counsel
Process and timing – General

6. Process and timing – Corporate
Approvals
 Assess what approvals are needed at the shareholder and board
level and how that affects timing
 Non-US buyers may have lengthy or formal internal approval
procedures
– In some countries, even relatively significant transactions will only be
approved at a regular monthly board meeting; special board meetings are
not called
– Transaction documents may need to be translated, which adds additional
lead time to the final approval process
– In Japan, some acquirers will publicly announce upon board approval
(prior to the agreement being signed)
 US public company board processes may be unfamiliar to non-US
counterparties
5

7. Process and timing – Public
company transactions
 Differing timelines for public company acquisitions
 When does the international jurisdiction require public
disclosure of the transaction discussions?
 Schemes of arrangement favored over mergers in
Commonwealth jurisdictions (e.g., England and Wales,
Hong Kong, Singapore, Cayman Islands)
 Takeover Panel in certain Commonwealth jurisdictions
 Ability to lock up shareholders may vary by jurisdiction
6

8. Due diligence
7

9. Due diligence
 Clearly scope out what you need to know to move
forward at each stage and what information is critical or
confirmatory at each stage
 Need to be inquisitive – other side may be unfamiliar with
scope of diligence requests
 Importance of healthy dialogue between in-house
counsel on both sides
 What level of diligence does the buyer need in order to
satisfy internal constituencies?
 Integrating local counsel advice
 Privilege/commercially sensitive information
8

10. Due diligence – FCPA
9
 Liability attaches from the moment of the acquisition
 Conduct risk-based FCPA/anti-corruption diligence and look for red flags:
– Previous violations
– Weak anti-corruption policy or compliance program
– Accounting weaknesses (e.g., excessive use of cash; missing or
inconsistent records; vague contracts and invoices)
 Implement buyer’s code of conduct and anti-corruption policies as quickly as
practicable
 Conduct FCPA training for acquired entity’s directors, employees, third party
agents and partners
 Plan for FCPA audit and compliance integration as soon as practicable

11. Due diligence – Privacy and Security
10
 Privacy: Determine sensitive data types
– Assess jurisdictional differences regarding personal data
• How defined, collected, accessed, used, stored, secured, transferred and whether subject
to breach reporting requirements
– Consider all relevant restrictions on the right to transfer personal data to the acquiring
company
– Review privacy policies and procedures for compliance with applicable law
 Cybersecurity: Review for compliance with law/regulation (jurisdiction and industry specific) and
contractual requirements. How does the target:
– Protect data confidentiality?
– Protect data and systems integrity against unauthorized access?
– Protect data and systems availability against disruption or destruction?
 Sufficiency of Representation and Warranties
 Sufficiency of Remedial Actions

12. Due diligence – Intellectual Property
11
 Jurisdictional considerations
 Compensation requirements for inventors
 Sufficiency of IP licenses and upstream licensing “affiliate” issues
 Sufficiency of assignment of IP rights by founders, employees and
contractors of the target
 Consideration of foreign government-funded research and development
(e.g., Israel Office of Chief Scientist)
 Transferability issues
 Joint ownership of IP – rights of co-owners (e.g., Japan)
 Assessment of policies and procedures regarding IP enforcement and
protection

13. Intellectual property
12

14. Intellectual property
 Cross-border licensing models
– Maximize value of IP assets through:
• Limited fields of use (e.g., mobile devices in a limited territory) and licensees
• Capture period for licensed patents
• Term license model (e.g., Nokia’s US$2 Billion ten-year license to MSFT)
– Ensure freedom to operate:
• Grant-back license for retained businesses specified territories
• Fully transferrable rights
• Right to enforce against infringers of retained businesses
• Exclusive license
• Retention of ownership
13

15. Regulatory approvals
14

16. Antitrust CFIUS
PRC:
SAFE,
MOFCOM and
NDRC
Other
15
Regulatory approvals
Getting ahead of worldwide antitrust/competition law filings

17. Regulatory approvals – Antitrust
16
□ Cross-border acquisition may trigger a multitude of pre-closing
antitrust reviews in various jurisdictions
□ Buyer should be prepared to engage counsel early on to prepare
accordingly
□ Counsel will need to know worldwide “turnover” of target by
jurisdiction
□ Antitrust planning
− Identify possible solutions to antitrust risks
− Prepare in advance to address potential agency questions and
concerns
− Be prepared to respond promptly to regulatory concerns if antitrust
risks exist
− Consider antitrust risk shifting devices in acquisition agreement

18. Antitrust CFIUS
PRC:
SAFE,
MOFCOM and
NDRC
Other
Consider whether the transaction will invite scrutiny from CFIUS –
particularly in tech acquisitions
17
Regulatory approvals

19. Committee on Foreign Investment in
the United States (CFIUS)
 CFIUS is a Treasury Department-led committee that conducts national security reviews
of foreign direct investment into the US.
 The CFIUS risk-based analysis is premised on certain key factors:
– Threat - whether the acquirer has the capability or intent to exploit vulnerability or cause harm
– Vulnerability - whether the foreign person in control of the US target business could take action
that threatens to impair US national security
− Risk Profile - the national security consequence of the combination of the threat and vulnerability
 Process may result in transactions being suspended, blocked, or modified, even after
closing
 Parties to a transaction may file a “Joint Voluntary Notice” to obtain formal clearance of a
transaction and prevent CFIUS revisiting the transaction
 Beyond customary defense-related assets, CFIUS also reviews deals not traditionally
associated with national security, including: energy assets, telecommunications, identity
authentication, cyber security, pharmaceuticals, real estate and semiconductors
 The statistics published in 2016 for the 2014 calendar year indicate 147 reviews (highest
since 2008), of which 12 were withdrawn and one was refiled; six percent involved
mitigation. 18

20. CFIUS Timeline
 CFIUS Process
19
Preliminary
Work
30-Day
Initial Review
45-Day
Investigation
15-Day
Presidential
Review
– Consultations,
including
discussions with
CFIUS to
explain/introduce
transaction
– Pre-filing:
submission of
Joint Voluntary
Notice in draft for
review by
CFIUS staff
– CFIUS thoroughly
vets the
transaction, in
particular the
risks it potentially
poses to national
security
– CFIUS may clear
transaction or, as
is often the case,
initiate an
additional 45-day
investigation
– CFIUS must clear
transaction or
recommend
action to the
President
– In some cases,
clearance may be
conditional on
certain measures
– President decides
to approve or
deny the
transaction

21. CFIUS Best Practices
 Conduct thorough due diligence
− This enables parties to assess potential national security concerns and develop possible
solutions upfront—as well as to have a better foundation for negotiating CFIUS risk within the
transaction
 Consult with CFIUS prior to filing a joint voluntary notice
– This can help shape expectations early on, and set the tone and direction of issues to be
considered
 Brief stakeholders on issues related to a transaction
– Specifically, discuss items of potential controversy with Congress and interested government
agencies
– If the deal is likely to be high profile, a public relations campaign may also be appropriate
 Advocate and focus on business
– Demonstrate that the transaction is driven by a commercial rationale
– Address the reasons why the transaction should not present national security concerns within
the CFIUS notice, with particular focus on the areas of potential concern learned during due
diligence
 Have a problem-solving mentality
– Seek to address potential national security concerns proactively
20

22. Antitrust CFIUS
PRC:
SAFE,
MOFCOM and
NDRC
Other
21
Regulatory approvals
Assess how SAFE and MOFCOM approvals in the People’s Republic of China
may affect your transaction

23. Regulatory approvals – SAFE
 SAFE is in charge of foreign exchange matters in the People’s Republic of
China
 Chinese purchasers making outbound investments should register
their outbound investment with SAFE to obtain foreign currency by
converting from RMB for making outbound transactions and to remit the
foreign currency outside China
 SAFE registration is the last stop and can be made only after the Chinese
purchasers complete filing procedures with outbound investment authorities
(e.g., MOFCOM and NDRC)
 Recent Observations
– As of February 2015, SAFE has delegated the registration authority to qualified
commercial banks in an attempt to reduce the time required before funds
denominated in RMB can be converted to foreign exchange and paid out of China
– Due to SAFE’s concern over capital flight and RMB depreciation, since Q3 of 2016
banks will not complete the registration procedure until the applicant completes all
the required internal meetings and interviews with SAFE to prove the truthfulness
of the transaction and payment request.
22

24. Regulatory approvals – MOFCOM
MOFCOM and its local offices are in charge of foreign investment
projects in China
 China regulates foreign investment in China following the Catalogue of
Industries for Guiding Foreign Investment (2015 Revision)
 Foreign investors require approval from MOFCOM or its local offices if
their greenfield investment is on the “Negative List”, which covers
certain industries that are attractive to foreign investors (such as
telecommunications, media, education, medical institutions, theme
parks)
MOFCOM and outbound investments
 Outbound investments are subject to a filing requirement (with certain
exceptions)
23

25. Regulatory approvals – NDRC
 NDRC is China’s central policy planning maker, which focuses on the project itself
 NDRC Project Information Report Confirmation
– For outbound investments that are at least US$300 million from China, a Chinese
investor must first submit an information report (also known as a “Road Pass”) to
the central level NDRC for approval at the initial stage of an acquisition transaction
or bidding process
– No “material steps" can be taken without this Road Pass, such as signing of any
binding agreements, making any offer with binding effect, or submitting any
regulatory filings
 A formal filing with NDRC is sufficient if the project does not involve sensitive
countries or sensitive industries
– Same scope of “sensitive countries” and “sensitive industry” as under MOFCOM
– NDRC (state level) approval is required if any of the above conditions above
cannot be satisfied
 The filing with NDRC generally takes seven working days after accepting the
application 24

26. Antitrust CFIUS
PRC:
SAFE and
MOFCOM
Other
Assess how other regulations may affect your deal
25
Regulatory approvals

27. Regulatory approvals – Other
 Take a step back and assess foreign investment regulations
– Assess whether you can actually consummate the transaction under foreign investment rules
applicable to the target’s industry
– How will foreign investment regulations affect timing of the deal? Is either party required to
make payments in Renminbi?
 India
– Regulatory approvals in India may lag behind the rest of a worldwide transaction
– It is not uncommon for the parties to close the India portion of a transaction separately
– Buyer and seller may enter into interim agreements giving economics of ownership to buyer
upon the worldwide closing
– International deal counsel must work closely with local counsel to achieve the desired result in
an accelerated timeframe
 France
– Due to employee consultation requirements, the French portion of a worldwide acquisition is
sometimes deferred—deal is signed up with a “binding offer” made for the French subsidiary
26

28. Employment considerations
27

29. Employment considerations
 Early in the process, determine whether the local jurisdiction allows
buyer to implement its plans for employees
 “For cause” jurisdictions
– Ability to terminate employees after closing may be costly and
administratively burdensome
 Special treatment of equity awards
– Section 102 trustee in Israel
 Notice and consultation obligations in Europe
28

30. Employment considerations – Notice
and consultation in Europe
29
 Deal counsel should pay special attention to European employee
regulations, which have significant effects on timing
 France – Pre-signing consultation may be required
– Prior to signing, consultative process with French staff representatives; obtain
opinions from councils and committees; without opinion, requesting party must wait
3 – 4 months
– French employees may be consulted on a confidential basis prior to signing and
French component of the transaction is sometimes carved out from deal
 UK TUPE (Transfer of Undertakings Protection of Employment)
– Triggered on a transfer of assets, not on a sale of shares
– Information must be provided to employees long enough before transfer to allow for
meaningful consultation to take place with employee representatives
– Often carried out between signing and closing (up to four weeks)
 Similar consultation obligations may apply in other European
jurisdictions

31. Dispute resolution
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32. Dispute resolution
 Litigation vs. arbitration
– Consult with international arbitration experts and your deal team to determine
whether an arbitration provision should be included
– Do not treat dispute resolution as “boilerplate”
 Advantages of arbitration
– Enforcement of awards (New York Convention)—where are the assets you will
enforce against?
– Neutrality (tribunal, procedure, place, language)
– Privacy (if not confidentiality) of proceedings
– Procedural flexibility; expertise of the arbitral tribunal
– Document production
 Disadvantages of arbitration
– No automatic right to appeal; less use of summary procedures; other procedural
considerations
– Difficulty in dealing with multi-party and multi-contract disputes
– Costs/efficiency 31

33. Tax structuring
32

34. Tax structuring
 Non-US company purchasing US target
– If Purchaser already has US operations  purchase through current US structure
– If Purchaser does not have US operations:
• If target is taxed as flow-through, generally best to use new US corporation purchaser to prevent
non-US purchaser from being subject to US tax
• If target is US corporation, can hold directly but might want to utilize debt (but there are limits on
interest deductions for payments to related parties)
 US company purchasing non-US target
– If Purchaser has non-US operations – generally beneficial to hold under single non-US parent
• Companies under non-US parent generally can transact with each other and move cash around
without US tax consequences if they file “check-the-box” election to be disregarded for US tax
purposes
 Deal structure may be informed by considerations with respect to where the target’s IP is
located and whether it can be transferred or exclusively licensed without increasing the
target’s tax liability 33

35. Thank you
34

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