Osborne Clarke Expert European legal advice to US businesses

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1 Osborne Clarke Expert European legal advice to US businesses Market acceptability Enforceability Avoids regulator s attention Certainty and minimization of risk Investment in a future template Required for B2C Disadvantages Cost Lack of uniformity across contract base Ongoing commitment to update and logistics of managing future changes Team s ability to negotiate effectively Other considerations Brand/market perception Yes on a countryby-country basis Other considerations Languages Uniformity and simplicity of contract management No additional expense Certainty about domestic law and competent courts Disdvantages/Risks IP, data or know-how could be compromised Customer perception of lack of consideration No direct right to enforce rights in jurisdiction where assets are based Statutory protections or exemptions may be missed Risk of regulatory breach Implied terms may not be effectively excluded Risk of unenforceability Limitations of liability may be deficient No not at all Should a US contract be localized for use in Europe? Yes but for the EU as a whole, not per country Compromise approach may work across some jurisdictions Some risk mitigation Major customer concerns may be addressed Disdvantages/Risks Customer perception of market capability Hard to determine risk in terms which rules to follow Management, inverstors expect watertight terms to better manage risk EU = 27 countries; one size fits does not work The business never fully scopes or understands its risk profile Compromise approach will necessitate uncertainty and/or loose drafting, increasing risk of liability, especially in B2C

2 osborneclarke.com Osborne Clarke. Expert European legal advice to US businesses. The EU s single market poses a unique set of challenges for US companies. It is essential for them to take a careful, risk-based approach when considering the contractual terms under which they wish to address the European market. Doing Business in Europe The European Union is made up of nearly 500 million people across 27 member states, making it the world s largest trading block. US exports of goods and services to the EU in 2010 totalled over $400bn and the trading relationship between the two regions is one of the world s most integrated. Distracted by the opportunity to tap into new revenue streams and grow market share in this seemingly familiar and ready environment, US businesses sometimes fail to step back and really think about the issues that could be the difference between a soft landing and an altogether more bumpy one. The challenges that US companies will encounter while entering the European single market will include: inconsistency of legal and regulatory harmonisation; varying approaches between common and civil law jurisdictions; the distinction between applicable law and applicable jurisdiction; and the fact that rules on key areas such as privacy, liability, consumer protection, anti-trust and staff transfers differ greatly from those applicable in the US. Global Reach With access to over 600 lawyers across 16 European cities, Osborne Clarke has a distinctive reputation for providing fully integrated European legal solutions for US clients. This is made possible through the Osborne Clarke Alliance, our exclusive network of European law firms. Through our network of best friend law firms we extend our reach across the globe. Silicon Valley Offices Osborne Clarke established its Silicon Valley offices in 2000 and is the only pan-european business law firm with a permanent presence on the West Coast. From here we serve US clients seeking legal support for their European and international activities. Our resident European qualified lawyers provide a direct link to each country, ensuring US clients receive round-the-clock specialist legal advice. Industry Experts Our sector-led approach enables us to align ourselves with our clients businesses and deliver in-depth technical advice. We are recognized as leaders in Digital Business, Energy and Natural Resources, Financial Services, Life Sciences and Real Estate and Infrastructure. Our people Mark Webber Partner (UK) T +44 (0) mark.webber@osborneclarke.com Konstantin Ewald Partner (Germany) T +49 (0) konstantin.ewald@osborneclarke.com Stephen Wilson Partner (USA) T +1 (650) stephen.wilson@osborneclarke.com Maninder Sagoo Lawyer (USA) T +1 (650) maninder.sagoo@osborneclarke.com Sian Story Lawyer (USA) T +1 (650) sian.story@osborneclarke.com Osborne Clarke November 2011 Publication number

3 Jay M. Spitzen Vocera, General Counsel and Corporate Secretary Dr. Jay M. Spitzen has served as General Counsel since April 2011 and as Corporate Secretary since June Dr. Spitzen has served as counsel since the founding of Vocera in February From 1994 to 2000, he was a partner at Gray Cary Ware & Freidenrich LLP (now DLA Piper LLP), a law firm. From September 1988 to 1994, Dr. Spitzen was an attorney with Ware & Freidenrich P.C., a law firm. From 1982 to 1985, he held positions as an engineering manager and vice president of planning for Convergent Technologies, Inc., a workstation company that he cofounded in From 1978 to 1979, Dr. Spitzen was a staff scientist with Xerox Corporation, a document management company. From September 1974 to March 1978, he worked as a software engineer with SRI International, Inc., an independent, nonprofit research institute. Dr. Spitzen earned an A.B. degree in Applied Mathematics from Harvard College, Ph.D. and S.M. degrees in Applied Mathematics from Harvard University, and a J.D. degree from Harvard Law School. Andrew Hill, Tealeaf Technology, Inc., Vice President & General Counsel Andy is the chief legal office at Tealeaf, an enterprise software company based in San Francisco that provides online customer experience management solutions and is a leader in online customer behavior analysis. Andy started his career at Brobeck, Phleger & Harrison, concentrating on venture capital financing for high-tech and emerging growth companies. For the past 15 years he has been in-house counsel for both private and publicly held technology companies in Silicon Valley. Andy's background has focused on technology licensing, commercial transactions and securities compliance. He joined Tealeaf from Calient Networks, where he was Vice President, General Counsel and Secretary and part of the management team that completed a recapitalization and re-start of the optical networking company. Previously, Andy led the legal and contracts departments at Legato Systems (now part of EMC) and helped expand the enterprise software company through numerous acquisitions. Andy also spent three years at Red Brick Systems, a data warehousing company, which he helped through a successful IPO. He holds a bachelor's degree from Brown University and a J.D. and M.B.A. from The University of Pennsylvania Law School and The Wharton School.

4 David Lancelot Axiom Attorney, Legal Consultant at ebay David is an international technology and media lawyer who has held senior legal roles with Amazon.co.uk, Discovery Communications and QVC (UK General Counsel). David is currently engaged by the ebay Classifieds Group where he acts as in-house counsel to ebay s classifieds sites in 18 countries. David possesses JD and LLM (Masters Technology Law) degrees, New York and Florida State Bar memberships and is a qualified English Solicitor. Mark Webber, Osborne Clarke, Partner, Head of Technology T: mark.webber@osborneclarke.com Mark is a partner specialising in transactions with a technology component for clients in the digital business sector. He focuses on innovative technology-led deals where IP, data or technology is being leveraged to add value to a business. As head of the technology sector at the firm, he is frequently called on to act on the crossover space between IP and IT. He has a particular focus on in complex technology transactions, ecommerce, cloud computing and fintech deals. Mark has more than a decade of experience advising digital business clients in technology and business process outsourcing, in IT and systems procurement, and in strategic technology contracts. He has worked on projects involving ecommerce, cloud, SaaS, open source, international privacy and licensing, acting for both users and suppliers. Mark worked in Osborne Clarke's Silicon Valley office for three years, and in that capacity built up significant expertise in project managing pan-european projects for both European and US businesses. He continues to act on a regular basis as de facto general counsel to venture-backed technology businesses from the US that are expanding into and across Europe. Mark is recognised for IT legal work in each of the leading directories, Chambers, Legal Experts and Legal 500 (where he has been described as "excellent" in the 2011 edition) and in the International Who's Who of Internet & Ecommerce lawyers. He co-authored the UK chapter of Global Security and Privacy Law published by Wolters Kluwer. Mark is registered to practise English law in California

5 Konstantin Ewald, Osborne Clarke, Partner T: Konstantin.Ewald@osborneclarke.com Konstantin is a Partner in the Cologne office of Osborne Clarke. He advises businesses on all matters of IT and IP law and technology-related transactions. Konstantin is regularly involved in drafting and negotiation of complex IT project contracts and ASP/SaaS schemes as well as software licensing and distribution contracts. He specializes in the legal handling of IT system implementation. Finally, he advises in e- and m-commerce as well as data protection law. One main focus of his activities is on the comprehensive legal advice to national and international companies in the interactive entertainment industry. The 2009/2010 edition of the renowned German JUVE law firm handbook refers to him as a "leading name in the Games sector". Konstantin regularly acts for listed video and computer games publishers as well as numerous development studios. His advice in matters of development, production and exploitation of game productions lets his clients profit from his comprehensive industry know-how. Konstantin joined Osborne Clarke in He regularly publishes articles on legal issues related to IT law and the computer games industry.