The following summaries are industry segmented examples of CFIUS-reviewed transactions. Please refer to the 5/23/11 post for more information on this survey.
Medical Imaging Software
On April 21, 2011, Toshiba Medical Systems Corporation of Japan announced that it was acquiring Vital Images, Inc. of Minnetonka, Minnesota, by a friendly tender offer to be followed by a merger. Vital Images is a leading provider of enterprise-wide advanced visualization and analysis software solutions. The transaction is expressly conditioned on the completion of CFIUS review, “if required.” The merger agreement provides that notice to CFIUS will be filed “if, following any discussions between Parent and CFIUS staff regarding the Transactions, [Toshiba] determines that it is desirable for the parties to file a notice . . . .” There is no indication yet as to whether the parties will file a notice with CFIUS.
Tyco Electronics Ltd. of Switzerland announced a tender office for the shares of ADC Telecommunications of Eden Prairie, Minnesota on July 13, 2010. ADC provides global connections for wireline, wireless, cable, broadcast, and enterprise networks around the world. The parties filed their joint notice with CFIUS on November 4, somewhat late in the transaction process. The transaction was completed on December 8, 2010, however, suggesting that the time line for clearance was 34 days if clearance was received prior to closing. In its offering materials, Tyco stated that it did not believe that its transaction raised any national security concerns, which appears to have been the case.
On April 11, 2011, Level 3 Communications, Inc. of Broomfield, Colorado announced that it had entered into an agreement to acquire Global Crossing Limited of Hamilton, Bermuda in a tax-free, stock-for-stock transaction. Level 3 operates one of the largest communications and Internet backbones in the world. Global Crossing a leading global IP and Ethernet solutions provider with the world's first integrated global IP-based network. The transaction agreement provides that its closing is subject to the satisfaction of certain conditions, including receipt of clearance from CFIUS.
On its face, a U.S. company is acquiring a foreign target. How then is CFIUS relevant? According to Level 3’s press release that announced the transaction, as a result of the transaction Singapore Technologies Telemedia (ST Telemedia), the holder of 60% of Global Crossing’s shares, will become a significant shareholder of Level 3. Its holding will presumably exceed the 10% threshold which the CFIUS regulations define as “control” without mitigating circumstances. As a result, for CFIUS purposes, a foreign person may be gaining control of Level 3, a U.S. person, thereby resulting in a transaction that comes within the ambit of CFIUS. As filed with the SEC, the transaction agreement expressly conditions the transaction on CFIUS clearance. The transaction is expected to close before the end of 2011. There is no indication of whether or when the CFIUS filing will be made. Global Crossing has been before CFIUS before, when the Committee approved its restructuring in 2003.
The following post will address a transaction in which FFIUS retroactively reviewed a completed transaction.