On December 7, 2016, the Federal Register published the President’s Order of December 2, 2016 – Regarding the Proposed Acquisition of a Controlling Interest in Aixtron SE by Grand Chip Investment GmbH (the Order). In the Order, the President, primarily pursuant to section 721 of the Defense Production Act of 1950, as amended (50 U.S.C. 4565), found that the proposed purchase through Chinese investors of a German company of the U.S. business of Aixtron SE., a company organized under the laws of the Federal Republic of Germany (Aixtron), might result in action that threatens to impair the national security of the United States. The U.S. business of Aixtron consists of Aixtron, Inc., a California corporation, the equity interests of Aixtron, Inc., and any asset of Aixtron or Aixtron, Inc. used in, or owned for the use in or benefit of, the activities in interstate commerce in the United States of Aixtron, Inc., including without limitation any interest in any patents issued by, and any interest in any patent applications pending with, the United States Patent and Trademark Office (collectively, Aixtron US). On the basis of the above findings the President ordered that the proposed acquisition of Aixtron US by the Purchasers is prohibited, and any substantially equivalent transaction, whether effected directly or indirectly through the Purchasers’ shareholders, partners, subsidiaries, or affiliates is prohibited.
The Order required the Purchasers and Aixtron to take all steps necessary to fully and permanently abandon the proposed acquisition of Aixtron US not later than 30 days after the date of the order, unless such date is extended by the Committee on Foreign Investment in the United States (CFIUS) for a period not to exceed 90 days, on such written conditions as CFIUS may require. Immediately upon completion of all steps necessary to terminate the proposed acquisition of Aixtron US, the Purchasers and Aixtron are required to certify in writing to CFIUS that such termination has been effected in accordance with this order and that all steps necessary to fully and permanently abandon the proposed acquisition of Aixtron US have been completed. Until this termination certification is made, the Order requires Purchasers and Aixtron to certify to CFIUS on a weekly basis that they are in compliance with this order and include a description of efforts to permanently abandon the proposed acquisition of Aixtron US and a timeline for projected completion of remaining actions.