CFIUS AND EXON-FLORIO

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1 CFIUS AND EXON-FLORIO Arnold & Porter LLP has extensive experience assisting both US and foreign companies in transactions subject to review by the Committee on Foreign Investment in the United States (CFIUS) pursuant to the 1988 Exon-Florio statute, as amended by the Foreign Investment and National Security Act of 2007 (FINSA). A number of our lawyers have worked on CFIUS matters as senior officials in the US government. They bring to our team insight into and experience with the review process. Our assistance to clients starts with advising on whether to seek a CFIUS review. Where a decision to seek review is made, we assist in preparing submissions to and working with CFIUS and its member departments and agencies. In addition, as is so often key to a successful CFIUS review and closing of a deal, we work with clients in educating Members of Congress, and, when appropriate, the media, about the benefits of the transaction. We have taken numerous transactions through successful CFIUS reviews, both for foreign and domestic clients, in a variety of industries where Exon-Florio was potentially a major hurdle to a transaction. We also assist clients in coordinating Exon-Florio reviews with antitrust, export control, securities, and other regulatory processes. In cases involving government contractors that deal with classified information, the CFIUS review process includes ensuring that the planned foreign investment will be in full accord with the industrial security regulations of the US Department of Defense (DOD). Those regulations impose special security obligations on government contractors working with classified information or technology if they become subject to foreign ownership, control, or influence (FOCI). On behalf of numerous clients, we have worked on a variety of arrangements to enable US companies that will become subject to FOCI, to retain or obtain work for the US government involving classified information. This typically involves negotiating specific agreements with the Defense Security Service (DSS), often in tandem with the CFIUS review process. When CFIUS has been under a deadline to make a decision within a short timeframe, we have often had to work very rapidly with our clients and DSS to ensure that the Exon-Florio review process would not be derailed by FOCI concerns. The successful negotiation of FOCI mitigation arrangements is often the linchpin to obtaining CFIUS approval without the need for an extensive Exon-Florio investigation. Representative Matters Finmeccanica, SpA in its purchase of DRS Technologies, Inc. Inmarsat in its asset acquisition of Segovia, Inc. American Management Systems in its sale to CGI CMA CGM, in the proposed acquisition of US assets to operate a container terminal in the Port of Miami

2 DFI International and its subsidiary DFI Government Services in their sale to Detica Group plc Cyveillance, Inc. in its sale to QinetiQ North America Operations LLC Apogen Technologies, Inc. in its sale to QinetiQ North America Inc. American Capital Strategies, Inc. in its sale of Texstars, Inc. to Hampson Industries Komatsu America Corp. in its sale of Advanced Silicon Materials LLC to Renewable Energy Corporation AS A US entity that manufactures highly specialized products used in computer chips with respect to its sale to a foreign company GKN Aerospace North America in its purchase of certain assets of McDonnell Douglas Corporation NFR Security, Inc. in its sale to Checkpoint Software Technologies Ltd. Thales (then Thomson-CSF) in its purchase of The Racal Corporation. In working on these and other Exon-Florio matters, the most important value to our clients has been our understanding of the government s concerns and our ability to resolve those concerns while protecting our clients business objectives. Our in-depth experience and established relationships with the CFIUS staff and DSS have enabled us to address the full range of national security issues involved in a wide range of matters in a timely and efficient manner. We have found that it is extremely valuable, if not essential, to work directly with the client s government customers, if any, as they can play a key role in determining how CFIUS or DSS will resolve a particular matter. It is also often critical to develop and implement a political or public relations strategy to address concerns that might arise at the congressional, state, or local level or in the media. We have worked with clients and their other outside advisors to help develop and execute such strategies. Our longstanding and robust government contracts practice facilitates our ability to address related issues that may arise. Arnold & Porter LLP 2

3 Our attorneys We have a core group of attorneys who regularly work on CFIUS and FOCI matters. Several of our attorneys have current very high level security clearances, up to Top Secret (TS/SCI), which can be helpful in CFIUS and other regulatory processes that arise in mergers and acquisitions. Jeffrey H. Smith [email protected] Mr. Smith served as General Counsel of the Central Intelligence Agency (CIA), as General Counsel of the Senate Armed Services Committee, and as an Assistant Legal Adviser at the US Department of State. In 1993 and 1994, he chaired the Joint Security Commission that was established by Secretary of Defense Les Aspin and CIA Director James Woolsey. Its charge was to examine the security procedures of the defense and intelligence communities. The commission made a number of specific recommendations with respect to FOCI that are now incorporated in the DOD s National Industrial Security Program Operating Manual. He also served on the Roles and Missions Commission and currently serves on CIA Director Leon Panetta s External Advisory Board. Mr. Smith heads up our national and homeland security practice group, which regularly counsels both US and foreign companies on a wide range of national security issues, including those within the jurisdiction of DSS. John P. Barker [email protected] Mr. Barker joined Arnold & Porter after serving in two high-level positions at the US Department of State: Deputy Assistant Secretary for Nonproliferation Controls and Deputy Assistant Secretary for Export Controls. His practice focuses on export control and national security issues that are often integral to Exon-Florio and FOCI matters. Mr. Barker s abilities and experience in the US Department of State make him an extremely valuable member of our core Exon-Florio team. Arnold & Porter LLP 3

4 John B. Bellinger III Mr. Bellinger served as Legal Adviser for the US Department of State from 2005 to 2009 and as Legal Adviser for the National Security Council at the White House from 2001 to In both positions, he worked directly with Cabinet and sub-cabinet policy officials at the White House and at the Departments of State, Defense, Justice, Commerce, and Treasury on numerous CFIUS matters. Mr. Bellinger supervised the lawyers at the US Department of State responsible for helping to draft the November 2008 regulations issued by the Treasury Department s Office of Investment Security which implemented the Foreign Investment and National Security Act of Mr. Bellinger also served as Counsel for National Security Matters in the Criminal Division of the Department of Justice from 1997 to 2001, as Counsel to the Senate Select Committee on Intelligence in 1996, and as Special Assistant to the Director of Central Intelligence from 1988 to In all of these positions, he was extensively involved in sensitive intelligence and law enforcement cases. Steven S. Diamond [email protected] Mr. Diamond is a senior partner in Arnold & Porter LLP's government contracts practice group. He has practiced government contracts law for more than 25 years, and his practice encompasses all facets of government contracts law. He has extensive experience in structuring and negotiating acquisitions, mergers, and divestitures involving government contractors, on both the buyer and seller sides and for both strategic and financial buyers. He also counsels clients on capital markets transactions involving government contractors including counseling and representing clients in their relationships with investment banks and rating agencies. These transactions have included ones requiring mitigation of Foreign Ownership, Control, or Influence (FOCI) and compliance with National Industrial Security Program Operating Manual requirements for Special Security Agreements (SSA) and proxy agreements, and guiding companies through the CFIUS process. Mr. Diamond's practice spans a broad range of industries, including aerospace and defense; pharmaceuticals; biotech; healthcare; medical device and equipment; information technology; telecommunications; professional services; financial services; transportation; and consumer products. He is a principal author of the American Bar Association Public Contracts Law Section Manual Best Practices in the Acquisition of a Government Contractor and a Past-Chair of the ABA International Law Section, International Procurement Committee. Arnold & Porter LLP 4

5 Ronald D. Lee Mr. Lee returned to the partnership after serving as Associate Deputy Attorney General and Director, Executive Office for National Security, at the US Department of Justice (DOJ). Mr. Lee led the DOJ s participation in the CFIUS. In that position, he was responsible for review by the DOJ and Federal Bureau of Investigation of transactions notified to CFIUS. Mr. Lee formulated DOJ's position on whether or not to support an investigation and worked closely with other senior government officials and counsel for the parties involved in the CFIUS process. During his time in government, Mr. Lee led the full CFIUS investigation of a transaction in a hightechnology industry that raised complex legal and policy issues. He participated in complex negotiations with counsel for the parties and in interagency discussions that included the involvement of several Cabinet secretaries. He also provided counsel to the Attorney General and the Deputy Attorney General on telecommunications, computer security, and encryption technologies, and the regulatory and public policy issues raised by those technologies. Prior to joining the DOJ, Mr. Lee served as General Counsel of the National Security Agency, where he was part of the Agency s senior leadership group and represented the Agency s legal and policy interests in a broad range of national security, information assurance, and technology matters. Jim Turner [email protected] Mr. Turner brings a quarter-century of public service at the federal, state, and local levels to clients of Arnold & Porter. During his four terms in the House of Representatives, he served as ranking member of the Homeland Security Committee, ranking member of the Armed Services Terrorism subcommittee, and ranking member of the Government Reform Management and Oversight subcommittee. He also served as the Policy and Administrative Co-Chair of the moderate Blue Dog Coalition and as a deputy whip of the Democrat Caucus. Mr. Turner s political experience brings to clients an effective liaison to Congress and federal agencies. Arnold & Porter LLP 5

6 Nancy L. Perkins Counsel, Washington, DC Ms. Perkins has extensive experience in handling Exon-Florio reviews as well as FOCI matters. She began advising clients on Exon-Florio at the very outset of the statute s implementation, and has in-depth knowledge of both the Treasury Department s Exon-Florio regulations and the Defense Department s FOCI regulations. For more than a decade, Ms. Perkins has worked closely with clients in resolving Exon-Florio and FOCI issues, including negotiating on their behalf with the staff of CFIUS and key DSS officials. She has also authored articles and presented continuing legal education programs on foreign investment in the United States. In advising clients on the full range of issues associated with such investments, Ms. Perkins has handled a variety of export control matters and assisted clients in complying with their reporting obligations under the International Investment and Trade in Services Survey Act. Her work in all of these contexts is complemented by her broader background in international law, which includes representing companies in a wide range of trade, customs, and foreign investment matters. Philippe A. Oudinot Senior Attorney, Washington, DC [email protected] Mr. Oudinot joined Arnold & Porter following his service as legal counsel for Vivendi; as Legal Director for Thales Avionics in Bordeaux, France; as Vice President and General Counsel for Thales Semiconductors in Paris; and as Vice President and General Counsel for Thales Avionics in Montreal, Canada. Mr. Oudinot has done extensive work for contractors under FOCI. This includes CFIUS reviews of foreign interests planning to acquire US contractors operating in the Homeland Security market, as well as the establishment of security agreements to mitigate FOCI under the National Industrial Security Program Operating Manual such as Special Security Agreements and proxy agreements. He has successfully represented the third largest maritime container transportation company in the world, in connection with the review by CFIUS of their acquisition of a port terminal operation in Miami, Florida. This review was the first conducted by CFIUS involving port operations, since the Dubai Ports World transaction in Arnold & Porter LLP 6