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CFIUS Reviews Broadcom - Qualcomm Deal

March 5, 2018

Qualcomm secretly filed a voluntary request with CFIUS to initiate an investigation, resulting in a delay of Qualcomm's Annual Meeting 48 hours before it was to take place.

"This measure will afford CFIUS the ability to investigate fully Broadcom's proposed acquisition of Qualcomm," the U.S. Department of Treasury said.

Broadcom noted, "This was a blatant, desperate act by Qualcomm to entrench its incumbent board of directors and prevent its own stockholders from voting for Broadcom's independent director nominees.

It is critical that Qualcomm stockholders know that Qualcomm did not once mention submitting a voluntary notice to CFIUS in any of its interactions with Broadcom to date, including in the two meetings on February 14, 2018 and on February 23, 2018. This can only be seen as an intentional lack of disclosure – both to Broadcom and to its own stockholders. This brings Qualcomm's "engagement theater" to a new low.

On November 2, 2017, Broadcom made a public commitment to redomicile to the United States and this process is well underway. The SEC has cleared Broadcom's preliminary proxy statement, and Broadcom continues to expect to receive all requisite approvals to complete the process by the end of its fiscal second quarter ending May 6, 2018. Broadcom continues to pursue the redomiciliation process as expeditiously as possible. Upon completion of the redomiciliation, Broadcom's proposed acquisition of Qualcomm will not be a CFIUS covered transaction.

Broadcom, which is run by a Board of Directors and senior management team consisting almost entirely of Americans, and which is largely owned by the same United States institutional investors that own Qualcomm, recognizes the important role CFIUS plays in protecting our national security, and is fully committed to cooperating with CFIUS in any review, just as Broadcom did during its prior successful acquisitions, including its acquisition of Brocade at the end of 2017.

It should be clear to everyone that this is part of an unprecedented effort by Qualcomm to disenfranchise its own stockholders."

Qualcomm responded to Broadcom statement by saying, "Broadcom Limited’s response to the order from the Committee on Foreign Investment in the U.S. (CFIUS) is a continuation of its now familiar pattern of deliberately seeking to mislead shareholders and the general public by using rhetoric rather than substance to trivialize and ignore serious regulatory and national security issues. CFIUS is an independent, multi-agency U.S. governmental body charged with protecting U.S. national security. CFIUS has determined that there are national security risks to the United States as a result of and in connection with the transaction proposed by Broadcom.

Broadcom’s dismissive rhetoric notwithstanding, this is a very serious matter for both Qualcomm and Broadcom. Broadcom’s claims that the CFIUS inquiry was a surprise to them has no basis in fact. Broadcom has been interacting with CFIUS for weeks and made two written submissions to CFIUS.

In compliance with the CFIUS order, Qualcomm will delay its Annual Meeting of Stockholders and election of directors for at least 30 days so that CFIUS can fully investigate Broadcom Limited’s proposal to acquire Qualcomm."

Qualcomm has extended the offering period of its previously announced cash tender offer to purchase all of the outstanding common shares of NXP Semiconductors N.V. (NASDAQ: NXPI). The tender offer is being made pursuant to the Purchase Agreement, dated as of October 27, 2016, by and between Qualcomm River Holdings B.V. and NXP, as amended (the “Purchase Agreement”). The tender offer is now scheduled to expire at 5:00 p.m., New York City time, on March 9, 2018, unless extended or earlier terminated, in either case pursuant to the terms of the Purchase Agreement.

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