United States of America Takeover Guide

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1 United States of America Takeover Guide Contact Richard Hall Cravath, Swaine & Moore LLP

2 Contents Page INTRODUCTION 1 TENDER OFFERS VERSUS MERGERS 1 IN THE BEGINNING 2 REGULATION OF TENDER OFFERS 3 MERGER TRANSACTIONS 6 USE OF SHARES AS CONSIDERATION 7 RESPONSIBILITIES OF THE BOARD OF DIRECTORS OF THE TARGET COMPANY 7 SQUEEZING OUT MINORITY SHAREHOLDERS 8 REGULATORY MATTERS _3_ takeover guide - united states of america

3 INTRODUCTION This guide gives an overview of the principal corporate and securities laws dealing with takeovers of United States (US) public companies. The focus of this guide will be transactions in which the acquirer is seeking to purchase 100% of the outstanding common shares of a target company. Broadly speaking, there are two methods for structuring a transaction in which an acquirer seeks to purchase 100% of the outstanding common shares of a US public company: first, the acquirer can utilize the merger statutes available in every US jurisdiction to acquire 100% of the outstanding common shares of the target through a single-step merger that receives the approval of the requisite percentage of the target common shareholders, or; second, the acquirer may make a tender offer directly to target common shareholders to purchase their shares and then follow the tender offer with a second-step merger to eliminate minority shareholders. The applicable regulatory framework is quite different for single-step merger transactions as compared to tender offers. A single-step merger is primarily regulated under the applicable state corporation law with respect to mergers, and secondarily by the federal securities laws applicable to the solicitation of the approval of the shareholders of the target company (the proxy rules). A tender offer is primarily regulated under the federal securities laws relating to tender offers. In addition, both single-step mergers and tender offer transactions may implicate the general fiduciary duty law of the state of incorporation of the target company. Whether the acquirer is proceeding by way of single-step merger or tender offer, other than in connection with unsolicited (hostile) tender offers, it is almost universal for the acquirer and the target company to enter into an agreement providing for the acquisition. This agreement customarily sets forth the terms upon which the acquisition will be completed, the structure of the transaction, the conditions to the acquirer s obligation to complete the acquisition, the commitment of the board of directors of the target company to recommend the acquisition, representations and warranties and covenants restricting the operation of the business of the target company between signing of the agreement and consummation of the acquisition. This agreement will also include any provisions agreed between the acquirer and the target company with respect to such matters as restrictions on the ability of the target company to solicit competing proposals and the payment by the target company to the acquirer of a termination fee in the event the acquisition is not completed because a third party makes a competing offer. It is worth noting at the outset that the patchwork of federal and state regulation of acquisitions is not in general focused on the substantive question of regulating changes of control of target companies. Rather, the focus of the US regulation is on disclosure and on ensuring that target common shareholders are given the time and the information to make a fully informed decision whether to accept the tender offer or vote in favour of a single-step merger. TENDER OFFERS VERSUS MERGERS The starting point for understanding the regulatory framework for any transaction in which an acquirer seeks 100% of the outstanding common shares of a US public company is the decision whether to proceed by way of a single-step merger or tender offer. A number of factors play into this decision: _3_ takeover guide - united states of america page 1

4 first, a single-step merger transaction always requires the approval of the board of directors of the target company, so it is not available if the acquirer is proceeding on an unsolicited (or hostile) basis; second, unlike other jurisdictions, in the U.S. a single-step merger structure is available even if the consideration to target shareholders will be 100% cash. However, in a transaction in which the acquirer is only offering cash consideration, a single-step merger will usually be slower than a tender offer transaction. If the acquirer is seeking to use its own shares as consideration or if there are likely to be significant regulatory delays, the speed advantage of a tender offer will be nullified; third, a single-step merger will always assure the acquirer that it will receive 100% of the shares of the target company if it purchases any of the shares. This may be of significant benefit to the acquirer, particularly with respect to its financing or with respect to assurance that it will be able to realize the benefits of the proposed transaction; and finally, there are frequently tax issues, particularly if the acquirer is using its shares as consideration, that may support using a single-step merger structure rather than a tender offer structure. Taking all these issues together, the usual market practice is as follows: unsolicited (hostile) transactions are nearly always structured as tender offers; transactions being done on an agreed (not hostile) basis that are likely to be subject to substantial regulatory delay will normally be structured as single-step mergers; transactions being done on an agreed (not hostile) basis that involve the use of acquirer shares as consideration will normally be structured as single-step mergers; and other transactions will normally be structured as tender offers. IN THE BEGINNING Preliminary Discussions Many acquisition transactions in the US commence with preliminary negotiations and/or discussions between the acquirer and the target company. As a general matter, a target company and an acquirer are not under any obligation to disclose preliminary discussions, even if requested to confirm or deny discussions by investors, the press or the New York Stock Exchange. If, however, the acquirer or the target company chooses to confirm or deny rumours, it must do so accurately. It is also very common for preliminary discussions to take place pursuant to a negotiated confidentiality agreement. There is no restriction on the ability of a target company to provide information to a potential acquirer if the board of directors of the target company believes it is appropriate to do so. Preliminary Purchases of Shares by an Acquirer An acquirer may purchase shares of a target company before initiating preliminary discussions or commencing a tender offer. In addition, the purchase in advance of target common shares will not impose any floor or minimum price with respect to a subsequent acquisition. Potential acquirers should note, however, that any confidentiality agreement entered into to facilitate preliminary discussions will likely contain an express prohibition _3_ takeover guide - united states of america page 2

5 on the acquirer purchasing target common shares. In addition, even without an express prohibition in the confidentiality agreement, an acquirer must not purchase shares of a target company once it has received confidential information from the target company as part of any preliminary discussions. There are two important restrictions with respect to the amount of shares that an acquirer can purchase in advance of a transaction: first, under Section 13(d) of the Securities Exchange Act of 1934 (the Exchange Act ), an acquirer that purchases more than 5% of the outstanding common shares of a target company must, within 10 calendar days of exceeding the 5% level, publicly file with the United States Securities and Exchange Commission (the SEC ) a disclosure statement on Schedule 13D. This disclosure statement will include various information about the acquirer, including, most importantly, its plans or proposals with respect to further acquisitions of shares of the target company or any extraordinary transaction involving the target company; and second, under the Hart-Scott-Rodino Antitrust Improvements Act, unless an exemption is available an acquirer may not purchase more than approximately $70 million (adjusted for inflation annually) in value of common shares of a target company without filing with the United States antitrust authorities (and notifying the target company of the filing) and waiting for the expiration of a 30-day period. REGULATION OF TENDER OFFERS Disclosure Any acquirer seeking to make a tender offer must prepare and file with the SEC a disclosure statement on Schedule TO and comply with the relevant rules relating to tender offers. The Schedule TO must be filed with the SEC and given to the target company on the date of commencement of the tender offer. There is no requirement that the date of commencement of the tender offer occur within or following any set period of time after the acquirer s first public announcement of its intention to make the tender offer, so long as the acquirer (when making its first public announcement) has the intention to commence the tender offer within a reasonable time. The acquirer is not required to distribute the Schedule TO to holders of target common shares; the normal practice is for an acquirer to prepare and distribute an offer to purchase and to incorporate by reference from the offer to purchase into the Schedule TO the information required in Schedule TO. The principal disclosure requirements of Schedule TO are as follows: summary of the material terms of the tender offer; summary of past transactions and significant corporate events between the acquirer and the target company; background to the transaction, including the history of any negotiation between the acquirer and the target; summary of the purposes of the tender offer, from the perspective of the acquirer, and any plans or proposals that relate to or would result in an extraordinary transaction involving the target company; brief summary of the source and amount of funds to be used in payment of the tender offer, including any material conditions to the financing; information regarding the directors and officers of the acquirer; _3_ takeover guide - united states of america page 3

6 summary of any recent transactions in the target securities by the acquirer or certain of its related parties; and financial statements for the acquirer must also be provided when its financial condition is material to the decision by target security holders whether to sell, tender or hold target common shares. Financial statements of the acquirer are deemed not material if: it is an all-cash transaction; there is no financing condition; and either (x) the offeror is a registrant under the Exchange Act or (y) the offer is for all outstanding target common shares. If financial statements are required and the acquirer is a foreign company, the financial statements must include a reconciliation to US GAAP. In the case of an all-cash transaction, although the Schedule TO must be filed with the SEC, it is not subject to any pre-clearance process within the SEC. Accordingly, the acquirer may (and customarily does) commence the tender offer and distribute the offer to purchase to target common shareholders before receiving comments, if any, from the SEC on the Schedule TO. Comments, if any, from the SEC on the Schedule TO will usually be dealt with through amendments to the Schedule TO. The acquirer is required to promptly amend the Schedule TO if there is any material change in the information provided. However, the acquirer is not in general required to distribute to target common shareholders any supplement or similar document in the event of an amendment to the Schedule TO (even amendments in response to SEC comments). Traffic Rules In addition to the disclosure requirements imposed by the US securities laws, acquirers making tender offers are subject to a variety of substantive rules with respect to the conduct of tender offers. The most important rules are as follows: an acquirer may offer cash consideration or share consideration or a mix thereof; a tender offer must be open for acceptance for at least 20 US business days from commencement. In addition, it must be kept open for at least 10 US business days following any change in price or a change in the percentage of the class of target securities sought. The acquirer may be subject to other mandatory extensions if there are material changes in information. There is not any maximum limit on the duration of a tender offer; there is not any requirement under the United States tender offer rules for an acquirer to bid for a minimum or a maximum percentage of the target common shares. As noted above, however, an acquirer may be subject to an obligation to extend its tender offer if it changes the percentage sought; partial bids in which the acquirer is seeking less than 100% of the target common shares are permitted. In this situation, the acquirer must pro-rate acceptances on the basis of a single pool of all shares tendered during the tender offer; an acquirer must make available withdrawal rights throughout a tender offer; there is not any requirement with respect to the presence or omission of conditions. The SEC will likely object to conditions that it characterizes as _3_ takeover guide - united states of america page 4

7 subjective or within the control of the acquirer, but there is not any restriction on the ability of an acquirer to include, for example, a due diligence condition, a financing condition, a minimum acceptance condition or an absence of material adverse change condition; the acquirer must not purchase any target shares, other than pursuant to the tender offer, from the first public announcement by the acquirer of its intention to make the tender offer through to the expiration of the tender offer. This prohibition applies whether or not the acquirer is purchasing shares outside the tender offer at a price lower than that being made available in the tender offer; and the acquirer must extend the tender offer to all holders of the target common shares and offer the same consideration to all holders. There is no restriction on the acquirer receiving advance binding commitments from major shareholders of the target company to support the tender offer, even if these commitments are irrevocable. It may be a violation of the acquirer s obligation to offer the same consideration to all holders if the acquirer agrees to offer different consideration to a major shareholder who commits to support the transaction. Notwithstanding the obligation to offer the same consideration to all holders of target common shares, it usually will be possible for the acquirer to offer employment-based compensation to executives of the target company, even if they are shareholders. In addition to the SEC s rules with respect to the conduct of a tender offer, an acquirer should expect that any definitive agreement between the acquirer and the target company will contain further contractual restrictions on the conduct of the tender offer. Common restrictions in these agreements are limitations on the ability of the acquirer to extend the offer and on the ability of the acquirer to amend any minimum acceptance condition. Amendments to Terms of Offer As a general matter, the acquirer may amend the terms of a tender offer without restriction, at least if any of the conditions to the tender offer remain unsatisfied. The SEC may object to an amendment to the terms of a tender offer that is adverse to holders of target common shares at a time when all conditions to the offer have been met. As noted above, certain amendments to the terms of a tender offer may subject the offeror to an obligation to extend the tender offer. In the event of an amendment, the acquirer will be required to file an amendment to its Schedule TO. In addition, any definitive agreement between the acquirer and the target company providing for the acquisition will normally contain contractual limits on the ability of the acquirer to amend the tender offer. The Role of the SEC Although the SEC has a general regulatory oversight of the rules applicable to tender offers, it has historically regulated tender offers with a fairly light hand. As discussed above, the SEC is likely to review the tender offer disclosure statement on Schedule TO, but it will endeavour to do so consistent with the 20 business day timetable. An acquirer does not need to have SEC approval of the tender offer or of any of its terms or amendments, although most acquirers will seek to respond constructively to SEC comments on the Schedule TO _3_ takeover guide - united states of america page 5

8 MERGER TRANSACTIONS If an acquirer wishes to proceed by way of single-step merger, the acquirer and the target company will negotiate and enter into a merger agreement. The merger agreement will require the approval of the board of directors of the target company and, under the relevant state corporations law statute, the approval of the shareholders of the target company. The level of approval of shareholders will depend upon the state of incorporation of the target company. In the state of Delaware, for example, the normal required approval is a majority of the outstanding shares. Under the merger agreement, the acquirer and the target company have broad flexibility to set the terms on which shares of the target company will be converted into cash, securities of the acquirer or the patent company of the acquirer or other property. After the shareholder approval has been received and all other conditions of the consummation of the merger have been satisfied, the transaction will be completed. Disclosure Requirements Because the execution of a single-step merger will require the approval of the shareholders of the target company, a single-step merger implicates the securities laws (known as the proxy rules) that are applicable to a United States public company whenever it seeks the approval of its shareholders for any matter. The proxy rules require that the target company (not the acquirer) must prepare and file with the SEC a proxy statement. After the SEC has reviewed the proxy statement, the target company must mail it to its shareholders in connection with the holding of the meeting of shareholders to approve the single-step merger. If there is any material change in the information in the proxy statement after it has been mailed to the target common shareholders, the target company may be required to make a supplemental mailing, depending on the materiality of the information. Some of the key disclosure requirements are: summary of the material terms of the transaction; summary of past transactions and significant corporate events between the acquirer and the target company; background to the transaction, including the history of the negotiation between the acquirer and the target; summary of the reasons why the board of directors of the target company has approved and is recommending the proposed merger; summary of any report, opinion or appraisal materially relating to the transaction that is received by the board of directors of the target company; and financial information for the acquirer may be required if financing for the transaction is not assured. Substantive Requirements Other than disclosure rules, virtually none of the federal securities laws apply to transactions that are structured as single-step mergers. Accordingly, the only substantive restrictions are as follows: because a single-step merger must be implemented pursuant to an agreement between the acquirer and target company, the target company will negotiate for inclusion in the definitive agreement of a variety of restrictions limiting the ability of the acquirer to change the price, to delay the transaction, to add additional conditions or otherwise to take actions regarded by the board of directors of the _3_ takeover guide - united states of america page 6

9 target company as not in the best interest of the target common shareholders; and under the laws of the jurisdiction of incorporation of the target company, there may be restrictions on the ability of the acquirer to treat different holders of target common shares differently. USE OF SHARES AS CONSIDERATION As discussed above, both a tender offer structure and a single-step merger structure permit the use of acquirer shares as consideration in the acquisition. The use of share consideration implicates the United States securities laws relevant to the public offering for sale of securities (Securities Act of 1933). If the acquirer wishes to offer its shares as consideration, in addition to the other disclosure documents described above, the acquirer will need to prepare, file and clear through the SEC a registration statement under the Securities Act. If the acquirer is not otherwise a public company in the United States, the relevant registration statement under the Securities Act will contain disclosure comparable to an initial public offering disclosure document. If the acquirer is already a public company in the United States, the disclosure document under the Securities Act will be somewhat more abbreviated. In this event, the key disclosure items will include: a description of the acquirer s reasons for doing the transaction; and pro forma financial statements for the acquirer after giving effect to the transaction. The use of share consideration will significantly delay any transaction. The SEC review process will normally be more time-consuming, and the comments likely to be received from the staff of the SEC with respect to the disclosure document will likely be more extensive. RESPONSIBILITIES OF THE BOARD OF DIRECTORS OF THE TARGET COMPANY The responsibilities of the board of directors of the target company can be divided into two categories: general fiduciary duties and disclosure requirements. General Fiduciary Duties The obligations of the board of directors of a target company in considering and responding to a proposal of the acquisition of 100% of the outstanding shares are governed by the fiduciary duties established by the state of incorporation of the target company. As a general matter, these will require the board of directors to act with due care and in what they believe to be the best interests of the target company and its shareholders. Depending on the jurisdiction, there may be other duties imposed. For example, in Delaware, the fiduciary duties of target directors include an obligation, if the company is being sold, to use reasonable efforts to maximize the value currently available to shareholders. Because of this obligation, the board of directors of the target company will usually require, in the merger agreement providing for the transaction, the ability to negotiate with potential competing bidders, subject to payment of a termination fee under certain circumstances. The fiduciary duties of the board of directors of the target company also include the obligation to speak with candour when giving recommendations to shareholders with respect to accepting a tender offer or voting in favour of a single-step merger. For this reason, the board of directors of the target company will normally retain the flexibility to _3_ takeover guide - united states of america page 7

10 change its recommendation if the board of directors concludes that its obligation to speak truthfully to shareholders requires it to do so. The fiduciary duties of boards of directors are interpreted with some flexibility, to permit the board of directors to do what is appropriate in these circumstances in any particular transaction. For this reason, the courts will give the board of directors great discretion with respect to whether or not to accept a takeover proposal, the terms of the merger agreement and whether to resist an unsolicited takeover proposal. Disclosure Requirements The federal securities laws impose specific disclosure obligations with respect to tender offers and single-step mergers. With respect to a tender offer, the board of directors of the target company must, within 10 business days of commencement of the tender offer, issue a formal recommendation statement in response to the tender offer. This document must contain, among other disclosures: the recommendation of the board of directors, together with a summary of the reasons therefore; a summary of the interests of the directors and senior management in the tender offer; disclosure of whether the board of directors is engaging in any negotiations in response to the tender offer that relate to, among other things, extraordinary transactions involving the target company. In addition, although not strictly required, the recommendation statement will normally contain a summary and a description of any fairness opinion received by the board of directors of the target company with respect to the tender offer. As with the Schedule TO disclosure requirements, the board of directors of the target company is required promptly to amend its recommendation statement if there is any material change in the information. The initial recommendation statement need not be (but normally is) mailed to shareholders, and there is no obligation to mail amendments to shareholders. These are normally disclosed through public filing with the SEC. With respect to a transaction structured as a single-step merger, the proxy statement constitutes a disclosure document by the board of directors of the target company. As discussed above, it must contain the summary of the reasons for the recommendation of the board of directors with respect to the transaction, as well as a summary of any fairness opinion received in support of the transaction. SQUEEZING OUT MINORITY SHAREHOLDERS There are no compulsory acquisition procedures, as such. If the acquirer elects to proceed by way of tender offer, however, there are a variety of structures potentially available to assist the acquirer to squeeze out minority shareholders who do not accept the tender offer. First, if the acquirer completes the tender offer and at that time holds 90% of the target common shares (in some states, this percentage is as low as 85%), the acquirer can implement a short-form merger, without the approval of any other shareholder of the target company, and through that short-form merger acquire all remaining target common shares. Other than the possible applicability of the SEC s going private rule (Rule 13e- 3), discussed below, there are no disclosure requirements imposed by the federal securities laws with respect to the short-form merger _3_ takeover guide - united states of america page 8

11 A holder of target common shares that is squeezed out in a short-form merger will often have the right to seek appraisal. This is a court proceeding under which the holder of the target common shares may assert that the consideration offered in the short-form merger does not represent fair value for the shares. The commencement of an appraisal proceeding by a target common shareholder does not delay the implementation of the short-form merger; the acquirer will own 100% of the target company but will be subject to litigation over the appropriateness of the price paid in the short-form merger. As a general matter, shareholders who accept a tender offer are not entitled to claim that the price offered in the tender offer was too low. A second route to eliminate minority shareholders following the completion of a tender offer is only available if the tender offer is being made pursuant to an agreement with the target company board of directors. In this situation, the definitive agreement that provides for the transaction will usually provide that, in addition to and following the tender offer, if the acquirer does not receive a number of target common shares sufficient to permit a short-form merger the acquirer and the target company will then proceed to implement a merger transaction (known as a long-form merger) under which the acquirer will acquire the remaining target common shares for agreed consideration following receipt of target shareholder approval. With respect to this long-form merger, the acquirer will be permitted to vote at the relevant meeting of target common shareholders all the target common shares acquired by the acquirer in the tender offer. Through this combination of a first-step tender offer and a long-form merger, the acquirer normally can be assured it will be able to acquire 100% of the target company. If the acquirer is proceeding with a long-form merger with the approval of the target common shareholders, it will be necessary to prepare and file with the SEC a proxy statement, just as for a single-step merger. Rule 13e-3 may also be applicable. In addition, holders of target common shares who do not vote in favour of the second-step merger will often be entitled to appraisal rights. Third, under Section 251(h) of the Delaware general corporation law, if: a target company is incorporated in Delaware and the acquirer makes a tender offer for all shares of the target company pursuant to an agreement approved by the target company board of directors and following consummation of the tender offer the acquirer owns enough shares of the target company that the acquirer could approve a long-form merger without the approval of any other target shareholder and certain other conditions are met, then the acquirer can implement a merger transaction (known as a 251(h) merger) under which the acquirer will acquire the remaining target common shares for the same consideration as the acquirer paid in the tender offer. Holders of target common shares that are acquired in a 251(h) merger will have the right to seek appraisal if they meet the procedural requirements. Other than Rule 13e-3 (if applicable), there are no disclosure requirements imposed by the federal securities laws with respect to the 251(h) merger. Any second-step merger transaction (short-form, long-form or 251(h)) will also be subject to Rule 13e-3 unless the acquirer implements the second-step merger within one year of the date of termination of the tender offer, offers consideration in the second-step merger at least equal to the highest consideration offered during the tender offer and fully discloses in the Schedule TO its intention to implement the second-step merger. Even if Rule 13e-3 is applicable, however, the acquirer is simply subject to enhanced disclosure and not to any substantive rule prohibiting the implementation of the second-step merger or mandating the payment of any particular price _3_ takeover guide - united states of america page 9

12 Going Private Transaction The SEC imposes enhanced disclosure obligations on transactions that fall within its going-private rule (Rule 13e-3). Rule 13e-3 generally is applicable to any transaction undertaken by an affiliate of a US public company that will result in a public company no longer being a public company. There are a number of exceptions, however the two most important exceptions are that Rule 13e-3 does not apply to a transaction in which the affiliate is offering its own common stock as consideration (and not cash) and also does not apply to a transaction undertaken by an entity that became an affiliate by virtue of completion of a tender offer, so long as the transaction meets the three requirements described above. If Rule 13e-3 is applicable, the principal enhanced disclosure requirements include: a statement by the affiliate and the target company as to whether the transaction is fair to unaffiliated security holders. The statement must include a detailed description of the reason for their view and is usually supported by an opinion from an independent financial advisor as to the fairness to the unaffiliated target common shareholders; and a summary of all reports and opinions received by the opinion and the target company materially related to the transaction. This includes preliminary reports and advice received by the affiliate or the target company from its own financial advisors. REGULATORY MATTERS Under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR Act), an acquirer will normally be required to make a filing with the United States antitrust authorities prior to completing the acquisition. Generally speaking, notification under the HSR Act is required if the size of the transaction exceeds approximately $70 million (adjusted annually for inflation). After the filing is made, the acquirer must wait for the expiration of a waiting period prior to completing the transaction. The waiting period is 30 calendar days for transactions other than cash tender offers and 15 calendar days for cash tender offers. The antitrust agencies have the authority to shorten the waiting period by granting early termination. During the waiting period, either antitrust agency may issue a second request for additional information concerning the transaction, which will result in the waiting period being extended. The extended waiting period expires 30 days (10 days in the case of a cash tender offer) from the date of receipt by the antitrust authorities of the requested additional information. A transaction cannot be completed until the end of the original waiting period or extension, whichever is later. At the expiration of the waiting period or extension, however, the parties are free to complete the transaction unless the antitrust agencies obtain a court order enjoining the consummation of the transaction. The United States does not have a general statutory review process with respect to foreign investment in the United States. Under the Exon-Florio Act, however the President, through the Committee on Foreign Investment in the United States ( CFIUS ) has the right to investigate and if thought fit, seek to prohibit or unwind transactions involving controlling investments by non-united States entities that threaten to impair the national security. Under the Exon-Florio Act, the President (through CFIUS) must investigate controlling investments by state-owned acquirers that could affect the national security of the United States. In addition to the HSR Act and the Exon-Florio Act, there are many statutes that operate on an industry-by-industry basis requiring advance notification to relevant government _3_ takeover guide - united states of america page 10

13 authorities. These include statutes relating to local electric and gas utilities, banks, holders of broadcast licenses and airlines. Application to Foreign Acquirers Although this outline focuses on US target companies, it should be noted that the US tender offer regime technically applies to any company (whether or not incorporated under the laws of the United States) that has its common shares registered under the Exchange Act. The SEC has long recognized that the application of the US tender offer rules in this situation may conflict with rules applicable to the target company under the laws of its own jurisdiction. Accordingly, the SEC has adopted a series of exemptions designed to facilitate the coordination of the US tender offer rules and home jurisdiction rules: under the Tier I exemptions, if less than 10% of the target common shares are held in the United States the acquirer and the target company will receive exemptions from virtually all applicable US tender offer rules; under the Tier II exemptions, if between 10% and 40% of the target common shares are held in the United States, the acquirer and the target company will receive limited exemptions. In addition, if the home jurisdiction rules so permit, the offerer can make one offer for the US holders of the target common shares, which will be subject to the US tender offer rules, and another offer for the non- US holders of the target common shares, to which the US tender offer rules will not apply; and if the home jurisdiction laws so permit, the offerer may completely exclude all US holders from the tender offer _3_ takeover guide - united states of america page 11

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