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Copyright © 2011 Holland & Knight LLP All Rights Reserved.

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1 Copyright © 2011 Holland & Knight LLP All Rights Reserved

2 Legal Issues Associated with Cyber Security M&A William J. Mutryn Co-Chair Mergers & Acquisitions Practice Group Holland & Knight LLP October 25, 2011 (703)

3 Copyright © 2011 Holland & Knight LLP All Rights Reserved Global law firm with nearly 1,000 attorneys in 17 U.S. offices and several international offices Mid-Atlantic Region: H&K’s largest region with roughly 250 attorneys and offices in Washington and Tysons Corner Corporate, M&A and Securities Group: 25 attorneys in the Mid-Atlantic Region and 150 nationally focusing on serving the middle market companies in M&A transactions, securities, finance and corporate governance Represented parties in approximately 100 M&A transactions involving Government Contractor, Defense and Security companies over the last 4 years, including 25 transactions in 2011 – approximately 25% of all government contractor transactions Experienced attorneys in tax, employee benefits, government contracts, intellectual property, environmental, real estate, employment and antitrust to perform M&A transactions Strong direct experience in representing cyber security firms, including companies that serve the intelligence community. See, List of H&K’s Representative Transactions at the end of this presentation 3 Holland & Knight LLP

4 Copyright © 2011 Holland & Knight LLP All Rights Reserved 4 Broad array of buyers, including: defense firms, technology firms, private equity sponsors, diversified firms and foreign firms Favorable financing terms and cash availability Perception of a strong growth market in cyber security that is still evolving Buyers seeking to acquire:  Technology  Products  Service capabilities  Customer relationships  Long-term contracts  Management talent The Current M&A Environment

5 Copyright © 2011 Holland & Knight LLP All Rights Reserved The Current M&A Environment 5 Robust Activity – quest for growth by Purchasers, desire for liquidity by Sellers and favorable tax rates. See list of recent cyber security transactions at the end of this presentation (list provided by KippsDeSanto & Co.) Purchasers are VERY PARTICULAR – seeking the right deal at the right price Rigorous due diligence results in challenges for deals to be completed on LOI terms Multiple tiers of valuation ranges for selling companies; cyber security technology and products, higher level cyber security services to homeland security and intelligence agencies are in the highest valuation range

6 Copyright © 2011 Holland & Knight LLP All Rights Reserved The Current M&A Environment 6 Lower level IT services are in less demand and sell for lower valuations Focus of Purchasers is shifting to products or mission critical or technology-enhanced products services with strong margins and growth potential Price multiples for attractive Targets often exceed public valuation multiples Valuation multiples (EV divided TTM Adjusted EBITDA) for higher end cyber security services firms often in the range of 10 to 12x. For firms with unique intellectual property or products, multiples can be higher, sometimes by considerable amounts

7 Copyright © 2011 Holland & Knight LLP All Rights Reserved Key Factors Affecting M&A Transaction Terms 7 Competitive demand for Target, e.g., auction process vs. single purchaser Risk tolerance and historical practices of particular Purchaser Composition of Seller group Nature and magnitude of perceived future business and legal risks Overall Target preparation and compliance posture Negotiation process

8 Copyright © 2011 Holland & Knight LLP All Rights Reserved Trends in M&A Transactions 8 Extensive Negotiation of a More-Detailed Letters of Intent Frequently follows some due diligence by Purchaser and management briefing by Target Often part of a process managed by investment bankers Items customarily addressed:  Tax and corporate structure, enterprise value and assumptions behind purchase price  Purchase price and type of consideration  Escrow or holdback  Working capital requirements  Principal closing conditions

9 Copyright © 2011 Holland & Knight LLP All Rights Reserved Trends in M&A Transactions 9 Letter of Intent/Term Sheet, continued…  Earn-out structure, if any  Non-competes and key employee retention  Due diligence process  Exclusive negotiation period  Indemnity caps, baskets, minimum claims, survival periods and materiality scrape sometimes negotiated Exclusivity Period may be staged based on completion of diligence, financing commitment and distribution of draft documents Sellers have strong interests to avoid future surprises on major terms and prefer to negotiate prior to exclusivity

10 Copyright © 2011 Holland & Knight LLP All Rights Reserved Trends in M&A Transactions 10 Rigorous Sophisticated Due Diligence by Prospective Purchasers: Revenue waterfall Backlog and pipeline Contract terms Margin sustainability and adequacy of business infrastructure Customer relationships and re-compete risk Key employee skills and employment continuity Taxes: income, foreign, sales and use

11 Copyright © 2011 Holland & Knight LLP All Rights Reserved Trends in M&A Transactions 11 Purchaser Due Diligence, continued… Efficacy of 338(h)(10) or similar elections Compliance related matters:  Infringement  Employment classification  Employee benefits  Export controls  FCPA  Government procurement regulations (if applicable) Capitalization Intellectual Property – data rights, ownership, pricing, competitive position IT system adequacy and security

12 Copyright © 2011 Holland & Knight LLP All Rights Reserved Trends in M&A Transactions 12 Escrow and Other Protections for Purchaser from Post- Closing Losses at Historical Levels Because of sophisticated diligence many Purchasers are better able to evaluate risks of claims against target companies Escrows – generally in the range of 5-20% of purchase price (with average of 10%) and held for months to secure indemnity claims Set-off Rights if subordinated notes or earn-outs are used as consideration Often a separate escrow to secure working capital deficiencies or some agreements provide for no upward adjustment based on estimated working capital at closing Holdbacks are less frequent than escrows

13 Copyright © 2011 Holland & Knight LLP All Rights Reserved Trends in M&A Transactions 13 Survival Periods for Representations, Warranties and Covenants General Reps and Warranties – 1 to 3 years; usually at least one audit cycle Fundamental reps, including capitalization, authority, title, brokers, absence of debt – indefinite or statute of limitations Tax, ERISA, Environmental – 30 to 60 days past statutes of limitations IP, Regulatory and Government Contracts – as negotiated: could be same as general, 3 to 5 years, or statute of limitations

14 Copyright © 2011 Holland & Knight LLP All Rights Reserved Trends in M&A Transactions 14 Survival Periods, continued… Pre-closing covenants – indefinite or same as general representations and warranties Post-closing covenants and special indemnities – indefinite or statute of limitation; sometimes special indemnities have separate survival periods ESOP-owned Target or widely-held Target in competitive auction – reps and warranties survive until escrow/holdback released, except for Fundamental Public Target – representations and warranties generally do not survive closing

15 Copyright © 2011 Holland & Knight LLP All Rights Reserved Trends in M&A Transactions 15 Indemnification Provisions Sellers – typically joint and several, sometimes several (if limited number of Sellers); Widely-held or ESOP-owned – indemnification usually limited to escrow or holdback Cap – typically 10% to 30% of purchase price for general representations based on circumstances Potential exclusions from cap and/or basket: capitalization, authority, title, breach of covenants, fraud, willful misconduct, tax, ERISA, environmental, ongoing litigation/investigation/claims, certain regulatory compliance matters, e.g., FCPA, special indemnities; cap for these items is negotiated but can be as high as the purchase price

16 Copyright © 2011 Holland & Knight LLP All Rights Reserved Trends in M&A Transactions 16 Indemnification Provisions, continued… Basket – negotiated amount (generally 0.25% to 1.00% of purchase price) – deductible or first dollar (tipping basket); split basket, (i.e., part deductible and part first dollar becoming more frequent Minimum claim size sometimes negotiated Special indemnities for discovered risks are often included

17 Copyright © 2011 Holland & Knight LLP All Rights Reserved Trends in M&A Transactions 17 Continued Emphasis on Employee Retention Many Purchasers require as a closing condition that key employees of Target execute retention or employment agreements and a percentage of other employees sign standard employee agreements Retention or bonus agreements generally contain stay-bonus provisions plus non-solicitation covenants with respect to customers and employees

18 Copyright © 2011 Holland & Knight LLP All Rights Reserved Trends in M&A Transactions 18 Employee Retention, continued… Highest level key employees may be required to sign employment agreements as a closing condition, particularly if Purchaser is private equity firm or small or mid cap strategic Private equity Purchasers may require or encourage purchase of equity by key managers Strategic Purchasers often grant stock options or restricted stock to key employees

19 Copyright © 2011 Holland & Knight LLP All Rights Reserved Trends in M&A Transactions 19 Selective Use of Earn-Outs Earn-outs – used by selected Purchasers if extraordinary growth projected, set-aside contracts or to bridge valuation gap More widespread use by private equity and small and mid- tier strategic buyers willing to pay upside if financial projections are achieved or key contracts are maintained or migrated Can be event-based or performance-based; usually no longer than 2 years from closing Performance-based earn-outs based on revenues, gross profits, contribution margin or EBITDA Earn-outs used less frequently by strategic buyers that prefer near-term integration of Target

20 Copyright © 2011 Holland & Knight LLP All Rights Reserved Trends in M&A Transactions 20 Use of Creative Tax Structures to Achieve Step Up in Basis and Deferral of Rollover Equity Many Purchasers attribute value to availability of step-up in basis of Target’s assets from IRS Section 338(h)(10) or 754 election In transaction with rollover equity, creative tax structures have evolved to enable tax deferred treatment of rollover equity, in some cases even where there is a Section 338(h)(10) or 754 election Careful tax examination by Sellers of effects of Section 338(h)(10) election and installment sales treatment required

21 Copyright © 2011 Holland & Knight LLP All Rights Reserved Trends in M&A Transactions 21 Continued Importance of Target’s Net Working Capital or Tangible Net Assets At Closing Usually determined based on cash-free, debt-free net working capital of business over an agreed period before closing Some Purchasers seek to exclude or limit deferred tax assets Some Purchasers require an adjustment if Accounts Receivable not collected within an agreed time Reserves and deferred revenue to be in accordance with GAAP Separate escrow or holdback to serve as payment source if a deficiency Customary adjustment mechanisms:  Both upward and downward;  Downward only; or  No adjustment if within range

22 Copyright © 2011 Holland & Knight LLP All Rights Reserved Trends in M&A Transactions 22 Private Equity Transaction Structures Continues to Use Leverage and Investment by Sellers and Key Employees Increased availability of senior and mezzanine debt in 2011 vs. last 2 years Consideration may consist of:  Cash  Subordinated notes  Rollover equity by sellers  Earn-outs

23 Copyright © 2011 Holland & Knight LLP All Rights Reserved Trends in M&A Transactions 23 Private Equity Transaction Structures, continued… Opportunity for “2 Bites at the Apple” by Sellers and equity appreciation by key executives Subordinated Notes – payment terms and subordination provisions are heavily negotiated items Rollover Equity – usually parri passu to or one level behind sponsor and subject to shareholders agreement Management fees and transaction fees paid to sponsor

24 Copyright © 2011 Holland & Knight LLP All Rights Reserved Trends in M&A Transactions 24 Suggestions to Potential Sellers: Conduct extensive preparation – Sellers should invest to prepare for every diligence question, including S Corp compliance, revenue waterfalls, contracts, compliance, benefits, IP rights and capitalization Be aware of customary terms Provide stay incentives for key employees Prioritize issues Keep in mind the big picture

25 Copyright © 2011 Holland & Knight LLP All Rights Reserved Trends in M&A Transactions 25 Conclusions: Prevailing trends can be helpful to provide guidance in formulating party’s negotiating strategy Resulting terms reflect the particular circumstances, bargaining power and practices of the parties involved Experienced financial, legal and accounting advisors can assist in developing creative compromises

26 Copyright © 2011 Holland & Knight LLP All Rights Reserved List of Recent Holland & Knight Representative Transactions 26 AcquirorTargetMonth/YearType of Transaction Iron Bow Technologies, LLC’s Senior Management* Iron Bow Technologies, LLC09/11Management Buyout CACI International Inc.Paradigm Holdings, Inc.*09/11Merger Computer Sciences Corporation *Maricom Systems, Inc.08/11Stock Purchase GTSI Corp.*Information Systems Consulting Group, Inc. 08/11Stock Purchase The Boeing CompanySolutions Made Simple, Inc.*08/11Stock Purchase General Dynamics Government Systems Corporation Network Connectivity Solutions, Corp.* 07/11Stock Purchase Chemonics International, Inc. Employee Stock Ownership Plan Chemonics International, Inc.*07/11Stock Purchase Dynamics Research Corporation*High Performance Technologies, Inc.06/11Merger SFW Capital PartnersSpectro, Inc.*06/11Stock Purchase TASC, Inc.TexelTek, Inc.*06/11Stock Purchase Monument Capital Group*Persistent Sentinel LLC05/11Asset Purchase National Security Partners, Inc.Point One, L.L.C. and FuGen, Inc.*05/11Asset Purchase FedCap Partners, LLC*Global Resource Solutions, Inc.05/11Minority Equity Purchase * = H&K Client in Transaction

27 Copyright © 2011 Holland & Knight LLP All Rights Reserved 27 AcquirorTargetMonth/YearType of Transaction FedCap Partners, LLC*Global Analytic Information Technology Services, LLC 03/11Minority Equity Purchase ManTech International CorporationTranTech, Inc.*02/11Stock Purchase ManTech International CorporationMTCSC Inc.*12/10Asset Purchase Pragmatics, Inc.Innovative Solutions International*12/10Stock Purchase Computer Sciences Corporation (“CSC”)* CenTauri Solutions, LLC12/10Merger Global Defense Technology Systems, Inc. Signature Government Solutions, LLC's* 12/10Equity Purchase KeyW CorporationEverest Technology Solutions, Inc.*12/10Stock Purchase Arlington Capital Partners*White Oak Technologies, Inc.11/10Merger ManTech International Corp.QinetiQ North America's Security and Intelligence Solutions Unit* 10/10Asset Purchase Computer Sciences Corporation*Vulnerability Research Labs10/10Asset Purchase CGI Group, Inc.*Stanley, Inc.8/10Merger List of Recent Holland & Knight RepresentativeTransactions * = H&K Client in Transaction

28 Copyright © 2011 Holland & Knight LLP All Rights Reserved 28 AcquirorTargetMonth/YearType of Transaction Applied Signal Technology, Inc.Seismic, LLC*4/10Equity Purchase KeyW CorporationThe Analysis Group, LLC*2/10Stock Purchase SRA International, Inc.* Perrin Quarles Associates, Inc. 1/10Stock Purchase General Dynamics C4 Systems, Inc.Ascend Intelligence LLC*1/10Asset Purchase DynCorp International LLCCasals & Associates, Inc.*1/10Stock Purchase Science Applications International Corporation Science, Engineering and Technology Associates Corporation* 1/10Merger * = H&K Client in Transaction List of Recent Holland & Knight RepresentativeTransactions

29 Copyright © 2011 Holland & Knight LLP All Rights Reserved 29 AnnounceCloseAcquirorTarget 10/04/11PendingInternational Business Machines Corp. (NYSE:IBM) Q1 Labs Inc. 10/04/11PendingMcAfee, Inc.NitroSecurity, Inc. 10/04/11 Avaya Inc.Sipera Systems, Inc. 09/29/11 Ultra Electronics Holdings plc (LSE:ULE)AEP Networks, Inc. 09/03/11 General Dynamics C4 Systems, Inc.Innovative Security Systems, Inc. (dba Argus Systems Group) 09/01/11PendingIBM CorporationAlgorithmics, Inc. 08/25/11 Verizon CommunicationsCloudSwitch 08/15/11PendingBIO-key International Inc. (OTCBB:BKYI)S.I.C. Biometrics Inc. 08/05/11 Intergraph CorporationAugusta Systems, Inc. 07/22/11 Google Inc. (NasdaqGS:GOOG)Pittsburgh Pattern Recognition 05/12/1106/06/11Rambus Inc. (NasdaqGS:RMBS)Cryptography Research, Inc. 05/11/1105/23/11Thoma Bravo, LLCTripwire, Inc. 05/05/11 Novacoast, Inc.Data Technique, Inc. List of Recent Cyber Security Transactions Compilation by KippsDeSanto & Co., an investment banking firm with strong experience in the cyber security industry.

30 Copyright © 2011 Holland & Knight LLP All Rights Reserved 30 AnnounceCloseAcquirorTarget 05/04/1105/02/11Identive Group, Inc. (NasdaqGM:INVE)idOnDemand Inc. 05/03/1107/08/11RadiSys Corporation (NasdaqGS:RSYS)Continuous Computing Corporation 05/03/11 General Microsystems Inc.RockFish Tek, Inc. 04/27/1104/28/11Polaris Software Lab Ltd. (BSE:532254)IdenTrust, Inc. 04/04/11 RSA Security, Inc.NetWitness Corporation 03/21/11 Peer Media Technologies, Inc.BayTSP, Inc. 03/03/1102/28/11Imation Corp. (NYSE:IMN)BeCompliant Corporation 02/14/11 Quest Software Inc. (NasdaqGS:QSFT)e-DMZ Security, LLC 02/11/11 NetSweeper, Inc.DeepNines, Technology And Business Assets 02/07/1103/03/11Corero plc (AIM:CORO)Top Layer Networks, Inc. 01/26/1105/01/11Cisco Systems, Inc. (NasdaqGS:CSCO)Pari Networks, Inc. 01/18/11 Solaria FundLavasoft AB, Anti-Spyware and Antivirus Software Business 01/14/1102/17/11BAE Systems (Holdings) Ltd.Norkom Group Plc (ISE:N5OK) 01/14/11 VMware, Inc. (NYSE:VMW)NeoAccel, Inc. 01/12/11PendingSAP AG (DB:SAP)SECUDE International AG Assets Compilation by KippsDeSanto & Co., an investment banking firm with strong experience in the cyber security industry. List of Recent Cyber Security Transactions

31 Copyright © 2011 Holland & Knight LLP All Rights Reserved 31 AnnounceCloseAcquirorTarget 01/11/11 Intel Corporation (NasdaqGS:INTC)Nordic Edge AB 01/10/1102/28/11Ameristar Network Inc. (OTCPK:AMWK)SecurDigital, Inc. 01/10/11 Astaro GmbH & Co. KG100% stake in CoSoSys S.R.L. and 97% in Mobile Software Solutions SRL 01/10/11 VASCO Data Security International, GmbHDigiNotar B.V. 01/07/1102/02/11Ultra Electronics Defense, Inc.3e Technologies International, Inc. 12/29/1012/30/10Sourcefire, Inc.Immunet Corporation 12/23/1012/23/11Management BuyoutAnonymizer, Inc. 12/22/1003/21/11BAE Systems plcETI A/S 12/06/10 Juniper Networks, Inc.Altor Networks, Inc. 11/29/1002/01/11Trend Micro Inc.Mobile Armor, Inc. 11/22/1012/22/10ManTech International Corp.MTCSC Inc., 11/21/1012/22/10Attachmate CorporationNovell Inc. (NasdaqGS:NOVL) 11/09/1011/30/10AVG Technologies N.V.DroidSecurity TLV 11/04/10 Raytheon CompanyTrusted Computer Solutions 11/01/10 Webroot Software, Inc.Prevx Limited Compilation by KippsDeSanto & Co., an investment banking firm with strong experience in the cyber security industry. List of Recent Cyber Security Transactions

32 Copyright © 2011 Holland & Knight LLP All Rights Reserved 32 AnnounceCloseAcquirorTarget 10/25/10 Asknet AGNorman ASA 10/18/10 MarkMonitor, Inc.DtecNet Software ApS 09/29/10Pending[undisclosed buyer]eSoft, Inc., Assets Associated with UTM Internet Security Appliance Offerings 09/15/10 Microsemi Corp.Arxan Defense Systems, Inc. 09/13/1010/20/10Hewlett-Packard CompanyArcSight, Inc. 08/31/10 Qualys, Inc.Nemean Networks, LLC 08/30/1010/04/11CA TechnologiesArcot Systems, Inc. 08/24/10 Technology Nexus ABPortWise AB 08/23/1009/29/10Thoma Bravo, LLCLANDesk Software, Inc. 08/18/1002/28/10Intel CorporationMcAfee, Inc. (NYSE:MFE) 08/17/1009/22/10Hewlett-Packard CompanyFortify Software, Inc. 08/09/1008/31/10Tektronix Texas, LLCArbor Networks, Inc. 07/29/1012/22/10McAfee Inc.tenCube Pte Ltd. 07/27/1007/30/10Juniper Networks, Inc.SMobile Systems, Inc. 07/26/1009/03/10Commtouch, Inc.Command Software Systems, Inc. Compilation by KippsDeSanto & Co., an investment banking firm with strong experience in the cyber security industry. List of Recent Cyber Security Transactions

33 Copyright © 2011 Holland & Knight LLP All Rights Reserved 33 AnnounceCloseAcquirorTarget 07/13/10 GFI SoftwareSunbelt Software, Inc. 07/12/10 Quest Software GmbHVölcker Informatik AG 07/07/1007/29/10Boeing CompanyNarus, Inc. 07/04/10 SafetyWeb, Inc.Odojo, Inc. 07/01/1007/20/10IBM CorporationBigFix, Inc. 06/30/10 H&C Network Co. Ltd.Initech Co. Ltd. (57% stake) 06/22/10 TrustWave Holdings, Inc.Breach Security, Inc. 06/07/10 Idera CorporationiDevFactory 06/03/10 Tibco Software, Inc.Proginet Corp. 06/02/1007/23/10Teachers' Private Capital; Thoma Bravo, LLCSonicWALL, Inc. 05/25/1006/03/10McAfee Inc.Trust Digital, LLC 05/17/1005/28/10Harris CorporationSignaCert, Inc. 05/03/1005/18/10Apax Partners Worldwide LLPSophos Plc (70% stake) Compilation by KippsDeSanto & Co., an investment banking firm with strong experience in the cyber security industry. List of Recent Cyber Security Transactions

34 Copyright © 2011 Holland & Knight LLP All Rights Reserved 34 AnnounceCloseAcquirorTarget 04/29/1006/04/10Symantec CorporationPGP Corporation 04/07/10 Absolute Software CorporationPhoenix Technologies Ltd., FailSafe and Freeze Anti-Theft Assets 04/01/10 VeriSign, Inc.TrustBearer Labs, LLC 03/25/1004/15/10Options Media Group Holdings, Inc.PhoneGuard, Inc. 03/22/10PendingAVG Technologies CZ, s.r.o.Square S.A. 03/03/10 TrustWave Holdings, Inc.Intellitactics, Inc. 02/26/10 AuthenTec, Inc.SafeNet Inc., Embedded Security Solutions Division 02/26/1002/17/10RF Logics IncME2 Security LLC 02/15/1002/28/10Cloudmark Inc.Bizanga Limited 02/11/10 Telenity, Inc.Construia 01/31/10 Raytheon CompanyCompucat Research Pty. Ltd. 01/29/10 WidePoint CorporationVUANCE Inc. (Government Solutions Division) 01/26/10 Ipswitch, Inc.Dorian Software Creations, Inc. 01/19/1002/01/10CACI International, Inc.SystemWare, Inc. 01/14/1002/05/10SAIC, Inc.CloudShield Technologies, Inc. Compilation by KippsDeSanto & Co., an investment banking firm with strong experience in the cyber security industry. List of Recent Cyber Security Transactions

35 Copyright © 2011 Holland & Knight LLP All Rights Reserved 35 AnnounceCloseAcquirorTarget 01/12/1001/22/10Symantec CorporationGideon Technologies Inc. 01/12/10 iForemEnmoda Inc. 01/12/10 TrustWave Holdings, Inc.BitArmor Systems Inc. 01/07/1001/28/10Motorola, Inc.SecureMedia, Inc. 12/18/09 Healthcare of Today IncNuvoDigital Technology, Inc. 12/13/0912/14/09ActivIdentity CorporationCoreStreet Ltd. 12/10/0902/10/09Microsoft CorporationSentillion Inc 11/30/09 IBM CorporationGuardium, Inc. 11/23/0901/11/10NICE Systems LtdOrsus (security management assets) 11/23/09 Check Point Software TechnologiesFaceTime Communications (application database) 11/03/09 m86 SecurityFinjan 10/27/0912/04/09Cisco Systems, Inc.ScanSafe, Inc. Compilation by KippsDeSanto & Co., an investment banking firm with strong experience in the cyber security industry. List of Recent Cyber Security Transactions


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