Upon review of a
recommendation from the Committee on Foreign Investment in the United
States and consideration, as appropriate, of the factors set forth in
the Defense Production Act of 1950, as amended, the President
has made relevant findings and issued the following Order:
ORDER
- - - - - - -
REGARDING THE PROPOSED TAKEOVER OF QUALCOMM INCORPORATED BY BROADCOM LIMITED
By the authority vested in me as President by the Constitution and the
laws of the United States of America, including section 721 of the
Defense Production
Act of 1950, as amended (section 721), 50 U.S.C. 4565, it is hereby
ordered as follows:
Section 1. Findings. (a) There is credible
evidence that leads me to believe that Broadcom Limited, a limited
company organized under the laws of Singapore (Broadcom), along with its
partners, subsidiaries, or affiliates, including Broadcom
Corporation, a California corporation, and Broadcom Cayman L.P., a
Cayman Islands limited partnership, and their partners, subsidiaries, or
affiliates (together, the Purchaser), through exercising control of
Qualcomm Incorporated
(Qualcomm), a Delaware corporation, might take action that threatens to impair the national security of the United States; and
(b) Provisions of law, other than section 721 and the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.), do not, in my judgment,
provide adequate and appropriate authority for me to protect the national security in this matter.
Sec. 2. Actions Ordered and Authorized. On the
basis of the findings set forth in section 1 of this order, considering
the factors described in subsection 721(f) of the Defense Production Act
of 1950, as appropriate, and pursuant to my
authority under applicable law, including section 721, I hereby order
that:
(a) The proposed takeover of Qualcomm by the Purchaser is prohibited,
and any substantially equivalent merger, acquisition, or takeover,
whether effected
directly or indirectly, is also prohibited.
(b) All 15 individuals listed as potential candidates on the Form of
Blue Proxy Card filed by Broadcom and Broadcom Corporation with the
Securities
and Exchange Commission on February 20, 2018 (together, the
Candidates), are hereby disqualified from standing for election as
directors of Qualcomm. Qualcomm is prohibited from accepting the
nomination of or votes for any of the Candidates.
(c) The Purchaser shall uphold its proxy commitments to those Qualcomm
stockholders who have returned their final proxies to the Purchaser, to
the extent
consistent with this order.
(d) Qualcomm shall hold its annual stockholder meeting no later than
10 days following the written notice of the meeting provided to
stockholders under
Delaware General Corporation Law, Title 8, Chapter 1, Subchapter VII,
section 222(b), and that notice shall be provided as soon as possible.
(e) The Purchaser and Qualcomm shall immediately and permanently
abandon the proposed takeover. Immediately upon completion of all steps
necessary
to terminate the proposed takeover of Qualcomm, the Purchaser and
Qualcomm shall certify in writing to the Committee on Foreign Investment
in the United States (CFIUS) that such termination has been effected
in accordance with this order and that all steps
necessary to fully and permanently abandon the proposed takeover of
Qualcomm have been completed.
(f) From the date of this order until the Purchaser and Qualcomm
provide a certification of termination of the proposed takeover to CFIUS
pursuant to
subsection (e) of this section, the Purchaser and Qualcomm shall
certify to CFIUS on a weekly basis that they are in compliance with this
order and include a description of efforts to fully and permanently
abandon the proposed takeover of Qualcomm and a timeline
for projected completion of remaining actions.
(g) Any transaction or other device entered into or employed for the
purpose of, or with the effect of, avoiding or circumventing this order
is prohibited.
(h) If any provision of this order, or the application of any
provision to any person or circumstances, is held to be invalid, the
remainder of this
order and the application of its other provisions to any other persons
or circumstances shall not be affected thereby. If any provision of
this order, or the application of any provision to any person or
circumstances, is held to be invalid because of the
lack of certain procedural requirements, the relevant executive branch
officials shall implement those procedural requirements.
(i) This order supersedes the Interim Order issued by CFIUS on March 4, 2018.
(j) The Attorney General is authorized to take any steps necessary to enforce this order.
Sec. 3. Reservation. I hereby reserve my
authority to issue further orders with respect to the Purchaser and
Qualcomm as shall in my judgment be necessary to protect the national
security of the United States.
Sec. 4. Publication and Transmittal. (a) This order shall be published in the
Federal Register.
(b) I hereby direct the Secretary of the Treasury to transmit a copy of this order to Qualcomm and Broadcom.
THE WHITE HOUSE,
March 12, 2018.
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