Do employees/other stakeholders have any specific approval, consultation or other rights?
Mergers & Acquisitions
If an intended M&A transaction entails significant changes to the organisational structure (including redundancies affecting a certain percentage of employees), the works council (provided that such works council exists) has information and consultation rights and also may issue its opinion on corporate restructuring measures and may enforce a redundancy program, but cannot hinder the transaction as such.
Article 3 of the Employment Contract Adaptation Act provides for a mandatory transfer of all existing employment contracts (including benefits) pertaining to the entire business or the operational business unit sold (eg, asset deal) or transferred (eg, by a merger) to another company. In a share deal the benefit plans of the legal entity whose shareholder changes will continue to apply.
Furthermore, under the Takeover Act, the bidder and the management of the target company are obliged to notify their respective works council without undue delay about the public offer. The works council does not have a blocking right.
Transactions such as these may of course lead to a rationalisation of staff. Section 30 of Bermuda’s Employment Act 2000 provides that where any redundancy, whether the result of M&A or not, is considered the employer must, as soon as practicable –
(a) Inform the employee’s trade union or other representative (if any) of the following information:
- The existence of the relevant condition of redundancy;
- The reasons for the termination contemplated;
- The number and categories of employees likely to be affected; and
- The period over which such termination is likely to be carried out; and
(b) Consult the employee’s trade union or other representative (if any) on:
- The possible measures that could be taken to avert or minimise the adverse effects of such redundancy on employment; and
- The possible measures that could be taken to mitigate the adverse effects of any termination on the employees concerned.
Employees do not have any general consultation rights under Bermuda law unless they are “unionised”, that is to say members of a union. The procedure of consultation and/or further specific rights may vary dependent upon the particular terms of the collective bargaining agreement between the company and the union.
Not usually. Some corporations (mostly those on which the government holds a relevant equity stake) allocate one of the board seats to employees, but this is as far as the employees influence go in M&A deals.
British Virgin Islands
A dissatisfied member may dissent from a merger (unless the member will continue to hold the same or similar shares after the merger) or a consolidation. A dissenting member is entitled to payment in cash for the fair value of his shares. The value of the shares is determined without reference to the effect or impact of the proposed merger (whether positive or negative).
To initiate the dissent process, the member must object in writing to the merger or consolidation before the vote on the plan. If the merger or consolidation is not approved, then of course no further action need be taken with respect to or by the dissenter. If the merger or consolidation is approved by the other members, however, the company has 20 days give notice of this fact to each objector, and to each member who did not receive notice of the meeting. Such persons have 20 days to give to the company their written election to dissent from the merger or consolidation, provided that in the case of a merger, the 20 days starts when the Plan of Merger is delivered to the member.
Upon giving notice of his election to dissent, a member ceases to have any rights of a shareholder except the right to be paid the fair value of his shares.
Within seven days of the later of the delivery of the notice of election to dissent and the effective date of the merger or consolidation, the company must make a written offer to each dissenting shareholder to purchase his shares at a specified price that the company determines to be their fair value. The company and the member then have 30 days to agree upon the price. If the company and the member fail to agree on the price within the 30 days, then the company and they must each designate an appraiser and these two appraisers designate a third. These three appraisers shall fix the fair value of the shares as of the close of business on the day before the shareholders approved the transaction without taking into account any change in value as a result of the transaction.
There is no requirement under BVI law for any consultation with employees in relation to an offer. In the limited circumstances where the company has BVI employees, the BVI Labour Code, 2010 (Labour Code) deals with continuing employment of employees in a surviving company and provides that those offered continuing employment will carry forward their service and accrued rights.
Both a merger and a squeeze-out provide for certain dissenter rights. In the merger context, dissenting shareholders are permitted (upon completion of the statutory process) to make application to the court for the payment of fair value for their shares. Similar considerations apply for statutory squeeze-outs; however, where there is a tender offer which is not on an all cash-basis, dissenters have no right to compel a cash alternative. For schemes of arrangement, the key challenge is achieving the high approval majorities required of each class of shareholders.
Aside from a general consideration with respect to any relevant employment contracts, there are no employee or pension-specific provisions applicable to a merger; save that, where the surviving company is a Cayman Islands company, it assumes all contracts, obligations, claims, debts and liabilities of each of the other constituent companies, including any employment liabilities.
Additionally, the consent of each secured creditor of each constituent company to a merger is required. However, in certain circumstances, the court may grant relief from this requirement.
For a scheme of arrangement, there are no employee or pension-specific provisions applicable but, where the rights of creditors are to be affected, their consent will be required.
Employee, pension or creditor consideration will not be relevant to a tender offer or statutory squeeze-out.
(1) Specific rights of the employees
According to Company Law, employees of a company shall, in accordance with the Labor Union Law of the People's Republic of China, organize a labor union, which shall carry out labor union activities and safeguard the legitimate rights and interests of the employees. When making a decision on company restructuring or any important issue relating to its business operations, or formulating any important rule or regulation, a company shall take into account the opinions of its labor union, and the opinions and proposals of its employees through the employee representatives' assembly or otherwise. Therefore, a target company's employees can exercise their right of consultation through employee representatives' assembly when the target company is facing an acquisition.
Additionally, according to the Measures for the Supervision and Administration over the Trading of State-owned Assets in Enterprises, if a target company is a state-owned enterprise and the transaction involves the resettlement of employees, a resolution on the plan of the resettlement should be discussed and adopted by the assembly of the employee representatives or of the employees.
(2) Specific rights of the other stakeholders
As far as the limited liability companies are concerned, according to Company Law, shareholders have the right of first refusal, under the same conditions, for the purchase of the shares held by the other shareholders. Therefore, if the transaction plan envisages its implementation through the acquisition of shared held by a major shareholder, prior waiver of the other shareholders' right of first refusal must be obtained.
The employees have only limited means of influencing or blocking M&A transactions, but they have certain general consultation and information rights relating to changes that may affect their rights or employment conditions. In business or asset transactions, the employees are generally entitled to be informed by both the seller and the acquirer of the transaction and its implications on their employment as well in advance as possible. Due to strict confidentiality requirements, this information is often given only just before the transaction becomes public.
In case an M&A transaction results in restructuring measures, consultation and co-determination rights may be triggered. In particular, a major restructuring and/or mass redundancies requires the employing entity to enter into negotiations with the competent works council (Betriebsrat) – if any is established – in order to conclude a reconciliation of interest (Interessenausgleich) about what restructuring measures shall be executed. If no agreement is reached, both the employer and the works council can refer the case to a conciliation committee (Einigungsstelle), consisting of members appointed by both parties and a neutral president appointed by both parties or, if the parties cannot come to an agreement regarding the person, by the competent labor court. Even though the conciliation committee cannot decide to execute or to refrain from any restructuring measures against the employer’s will, the non-compliance with this reconciliation process may entitle the works council to an injunctive relief, which orders the employer to stop any restructuring measures until the reconciliation process is formally closed, and affected employees to a compensation for any disadvantages resulting from the premature starting with restructuring measures (Nachteilsausgleich). Moreover, in the case of mass redundancies the works council can demand a social plan (Sozialplan) to minimize the financial impact on the employees. If the employer and the works council do not reach an agreement, the conciliation committee can establish a social plan even against the will of the employees. Therefore, unlike the situation concerning the reconciliation of interest, where the restructuring measures are in question, the compensation for disadvantages such as the loss of employment can be decided by the conciliation committee against the employer’s will. Eventually, the works council has to be consulted prior to the execution of mass redundancies, however, this consultation process may be combined with the negotiations regarding a reconciliation of interest.
If a business unit or part of a business unit is transferred in an asset deal or a statutory spin-off employees have the right to contradict the transfer of their employment.
The executive board of the target company is obliged to inform the competent works council and – in the absence of a works council – all its employees when it receives the announcement of a takeover bid. In the same way, the executive board of the bidder has to inform its own works council and employees respectively about its decision to submit an offer. If an economic committee (Wirtschaftsausschuss) is established at the target company – which is basically the case if the target company employs more than 100 employees –, this committee has to be informed about the takeover bid as well.
However, these information obligations do not trigger any co-determination rights and therefore neither the approval of the target’s works council, economic committee and employees nor the approval of the bidder’s works council and employees is required. The works council of the target company and its employees respectively are entitled to be informed about the details of the offer, though. Further, they have the right to submit their opinion on the offer to the executive board of the target company. The executive board is obliged to attach any submitted opinion to its own reasoned opinion. Whilst the works council’s and, respectively, employees’ opinion may have effects on how the takeover is perceived by the public, it does not legally bind the target company in any way.
Law 2190/1920 on Greek companies limited by shares recognizes in art. 4 para. 4 the right of each company’s creditors to be satisfied for their claims in cases of decrease of the share capital. If precedence is given to the payment of the shareholders, the creditors have the right to submit an objection with the Court of First Instance, in order to safeguard the payment of their claims. Pursuant to art. 70 paras. 2 and 3, the creditors of the companies to be merged may request and receive sufficient guarantees, without which the merger of the companies may not proceed, unless a special petition is filed by the companies to the Court of First Instance. Para. 4 of the same article expressly stipulates that in cases where creditors own bonds convertible to shares of at least one of the companies merged, the merger may not proceed unless approval of the merger decision is granted by the creditor.
According to Article 4 of Presidential Decree 178/2002 (implementing Directive 98/50/EC on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of businesses), it is provided that “by reason of the transfer and from the date of transfer, the transferor's rights and obligations arising from a contract of employment or from an employment relationship existing on the date of the transfer shall automatically be transferred to the transferee”. Therefore, the transfer of the undertaking constitutes a statutory ex officio transfer of the employment relation and of the employment terms and conditions as formed at the date of the transfer, without any alteration of the rights and obligations of both parties. In this case, the transferor and the transferee are obliged to inform the employees’ representatives or the employees directly on the transfer and proceed to consultation with them in case measures changing the employees’ status are to be adopted.
It should be noted that in accordance with Presidential Decree 240/2006 (implementing Directive 2002/14/EC on the establishment of a general framework for informing and consulting employees in the European Community) a general obligation for information and consultation with the employees is enacted, which is applicable to undertakings employing at least 50 employees and to establishments employing at least 20 employees and which covers information and consultation on the development of the undertaking's activities and economic situation, on probable development of employment and on any anticipatory measures envisaged, in case where there is a threat to employment and on decisions likely to lead to substantial changes in work organisation or in contractual relations.
Within the scope of the aforementioned laws, consultation has the meaning that the employees’ representatives are entitled to formulate an opinion on the issues under discussion and obtain a response by the employer and the reasons for that response. Therefore, the parties must not necessarily reach an agreement as regards any amendment envisaged, in the sense that the employees’ consent and approval is not required.
Finally, Law 3777/2009 on cross-border mergers provides for the participation of employees in the company resulting from the cross-border merger in Greece. It stipulates that Greek law is applied on employee participation, in the case that the registered seat of the company is in Greece and to the extent that employee rights are not impeached as a result.
There is no requirement to consult with or obtain the specific approval of employees but the Takeover Code (if applicable) does require that certain documents (including the offer document and announcement) are provided to an appointed employee representative (or to the employees if there is no appointed representative).
For an amalgamation under Part VI of the Guernsey Companies Law, creditors of the company must be given written notice of the proposed amalgamation and have a right of inspection of the amalgamation proposal and a right to a free copy of the amalgamation proposal upon request.
For a scheme of arrangement under Part VIII of the Guernsey Companies Law, the Court may make provision for any persons who, within such time and in such manner as the Court directs, dissent from the arrangement.
Isle of Man
There are no specific obligations under Manx law to consult with, or obtain approval from, employees or other stakeholders.
If applicable, the Takeover Code contains provisions relating to engagement with employee representatives and the provision of information.
If the target is a regulated business, regulatory approval may be required – see question 11.
As a point of basis, share acquisitions will not trigger any statutory approval or consultation rights for neither employees nor other stakeholders. A share acquisition in itself will normally not affect an employment contract and therefore not trigger any duties on the new shareholder(s). However, if the target is listed on a Norwegian regulated market, the STA imposes additional obligations to inform the employee in connection with a public bid for shares in the company. In addition, if the target company is bound by a collective bargaining agreement with a trade union, it may be obliged to notify the employees if a shareholder's (buyer's) ownership percentage exceeds certain thresholds. The collective bargaining agreement may also impose the target to contribute to the buyer informing the target's employee's on its plans. A target company may also have specific contractual obligations towards creditors or other stakeholders that requires consultation or approval.
With respect to statutory mergers (as further described under question 5), the merger must be notified to the NRBE after which a six weeks creditor notice period follows. During such period, creditors of the merging companies may claim their rights, and, as a point of basis, the merger will not be effectuated before the claim is settled. In addition, the merger plan and the board statement on the merger's anticipated effect on employees must be made available to the employees. For a statutory merger, the board of the merging companies must prepare a detailed statement covering the merger and its anticipated effects on employees. The employee representatives (both in listed and non-listed) merging companies will have a statutory right to receive all information and related reports and statements, and to discuss the merger with the board.
Special notification rules apply for alternative investment funds (AIFs), which (individually or jointly) acquires control of a target that fulfils certain criteria. Under these rules, the investment manager must notify and disclose the fund’s intentions with regard to the target’s future business and the likely repercussions on employees etc.
In business combinations structured as a transfer of an undertaking, both future and current employer will have certain duties to notify and consult with employees and their representatives. However, there are no requirement to obtain consent from the employees to carry out an asset sale, but pursuant to the Norwegian Working Environment Act (2005), the employee's elected representative and the employees shall, as early as possible, be presented with information concerning the transfer.
Moreover, in transfers of undertakings, the rights and obligations of the former employer ensuing the employment contract or relationship in force at the date of the transfer, shall be transferred to the new employer. The transfer in itself do not give just cause for a termination of the employment contract for the new employer. Meanwhile, an employee have the right to object a transfer of the employment to the new employer, often referred to as the right of reservation.
Participants (shareholders) of a non-public company have pre-emptive rights to buy interest (shares) offered for sale to a third party. This right is statutory for limited liability companies and optional for non-public joint-stock companies. A company’s charter may contain further details and requirements for the procedure, or even a pre-emptive right of the company itself to buy out the interest (shares).
Public joint-stock companies are not allowed to provide first refusal rights to any parties, except for the right of shareholders and holders of the company’s securities’ to buy additional shares in certain cases.
In the event of a merger or another corporate reorganisation, minority participants of a limited liability company can veto relevant resolutions. In a situation with a joint stock company, shareholders who voted against a resolution on reorganisation or did not participate in the voting are entitled to require purchase of their stakes by the company.
Usually, employees have no say in M&A matters.
The NCL does not provide for special approval or consultation rights of any third party upon a company's sale or acquisition. Regulatory approvals, such as those required from SAGIA, are addressed in question 11 below.
In public takeovers, the M&A Regulations note that directors should take into account the interests of employees, creditors and shareholders when providing advice or recommendations to shareholders.
The rights of employees of a target company depend on the form of M&A. In a share transfer or merger, the employees do not have any special rights. However, in the case of a business transfer (jigyo jouto), employees of a target company selected to be transferred to the acquirer may refuse their transfer. In the case of a company split (kaisha bunkatsu), employees working for the business division that is to be transferred to the acquirer have consultation rights and, depending on their role within the target company, some employees will also have specific approval or refusal rights over their transfer to the acquirer.
Shareholders of a target company do not have any specific individual approval, consultation or other rights. However, in the case of a merger shareholder approval at a general shareholder meeting is required.
Employees of the target company do not generally have any specific rights to approve or be consulted on a potential acquisition. Only if they are to be transferred from an existing employer to a new employer (e.g. on an assets acquisition or business transfer) is their consent required.
Shareholders will generally have approval rights in particular where the acquisition involves an issue/sale of primary shares. A shareholder approval by special resolution is generally required for a target company to increase its share capital and by ordinary resolutions to allot its newly issued shares.
If the acquisition is of primary shares of a listed company, a mandatory tender offer requirement may be triggered (see also paragraph 24 below) unless a ‘whitewash’ approval (or approval from the SEC which is granted in very limited circumstance) is obtained from a shareholders meeting of the target company by special resolution.
Other stakeholder consent would depend on the existence of any change of control provision in a contract or permit of the target company which requires consent from a lender, major supplier, concessionaire or a joint venture partner before the acquisition of a certain number of shares in the target company.
Once a bid has been launched, the target’s board is obliged to issue an opinion giving its views on, inter alia, the effects of the implementation of the bid on employment and on the offeror’s strategic plans for the target and their envisaged repercussions on employment. Such opinion should be communicated to the employee representatives or in the absence of representatives, to the employees themselves.
In the ambit of a cross-border merger, the Cross Border Merger Regulations (Subsidiary Legislation 386.12, Laws of Malta) require the relevant draft terms of merger and reports drawn up by the directors of the Maltese merging entity to explain the likely repercussions of the cross-border merger on employment.
There is no requirement that the board of a public company obtain the approval of, or otherwise consult with, employees or any other stakeholders besides shareholders. However, 28 states have adopted constituency statutes that expressly permit, but do not require, a board of directors to consider the interests of stakeholders such as employees, customers, suppliers and communities served by the corporation in determining whether or not to approve a merger.
As a general proposition, no (with limited exceptions).
There is no requirement to consult with or obtain the specific approval of employees and creditors. However they may be informed of the proposed M&A.
There is no obligation to consult with or obtain the approval of employees. If the Takeover Code applies, there is an obligation to provide certain documents to either an employee representative or otherwise to the employees.
A shareholder has the right to withdraw from the company and request the company to buy its shares if, in a general meeting of shareholders, he voted against any of the following matters:
- change of the main object of activity of the company;
- relocation of the company’s headquarters abroad;
- change of the company’s form, or
- merger or spin-off of the company.
Although no approval is required from them, the creditors of the merger parties have a temporary opposition right against the merger. The same applies when the shares of a limited liability company are transferred to a third-party buyer (not applicable if the shares are internally transferred, i.e. withdrawal of a shareholder).
As a rule, although the employees have to be notified on the merger/shareholding changes, they do not have any specific approval rights in M&A transactions, unless they are shareholders. However, certain conditions and clauses may be imposed with respect to the continuity of the employment contract and the rights and obligations deriving from it. Also, “silver parachute” clauses may be included in an employment contract.
Neither employees nor other stakeholders have specific approval or consultation rights (as employees) under a takeover or scheme of arrangement.
Employees will have consultation rights under a sale structured as a business/asset sale.
While there are no regulatory approvals or consents that are generally required on all UK deals as a matter of course, depending on the business profile of the target company and, in many cases, the bidder, there may be specific regulatory requirements which must be complied with.
For example, the acquisition of a target company which operates in the financial services sector (or acquisition of a stake in excess of 10% therein) will likely require the prior approval of the FCA, or in certain specific cases, the UK Prudential Regulation Authority. The assessment period for a review undertaken by the FCA is 60 business days (which may be interrupted to request additional information, where required). Approval may only be withheld under circumstances where there are reasonable grounds to do so, based on the suitability of the proposed acquirer (for e.g. having regard to its capitalisation, reputation and relevant experience).
Depending on the size of the target and bidder, it may also be necessary to make merger control filings with competent regulatory authorities, For English targets, where applicable, these will be either the European Commission or, under certain circumstances, the UK's Competition and Markets Authority (the "CMA").
European Commission preapproval may be required in respect of mergers which have an EU dimension and meet certain specified turnover thresholds, where the merger could significantly impede effective competition in the European common market or a part of it, particularly through the creation or strengthening of a dominant position.
Filings with the European Commission are generally made, where possible, following pre-notification discussions with the relevant case officers and, once notifications have been submitted, there is a preliminary 25 working day review period. Upon conclusion of this period, the European Commission must either clear the transaction (potentially making such clearance conditional on certain commitments being fulfilled), or elect to proceed to a more in-depth analysis. This analysis (referred to as a Phase II investigation), takes place over a further period of at least 90 working days and tends to be particularly labour intensive.
Smaller mergers which may not qualify for review under the European Commission's merger control regime may still be subject to regulation by the CMA. Where applicable, preclearance by the CMA is not mandatory, but given the CMA's powers to impose remedies on parties to a transaction, even following completion, parties to a merger will often consider seeking CMA approval prior to closing. CMA filings will typically be made following pre-notification discussions, with the CMA's preliminary review period being 40 working days. Should the CMA determine that a more in-depth assessment is required, any such subsequent review is conducted over a period of 24 weeks.
Of course, on larger transactions, it will be necessary to conduct a similar analysis to that which is outlined above in respect of the other jurisdictions in which the target and bidder operate.
The considerations set out above apply equally to private M&A transactions.
In case of certain Structural Changes (mergers, spin-offs, etc), both employees and shareholders have specific rights. Employees -through their legal representatives- and shareholders have rights of information about the proposed Structural Change once the General Shareholders’ Meeting is called for its approval (there is a list of compulsory information legally determined and a specific information period provided by law). As well, creditors have in the referred Structural Changes a one-month term opposition right (unless their credits are sufficiently guaranteed and therefore they are not affected as a consequence of the Structural Change). In general, there are no other approvals or consultations in case of these Structural Changes since they imply that, following the specific process of approval and publicity established by law, all rights and obligations (including employees and labour and Social Security obligations) are automatically transferred through a so called “universal succession”, without the need of claiming for other consents or authorisations.
In case of acquisitions, there are two different scenarios:
- Shares deal: as a general rule, legally shareholders have pre-emption right of purchase but it differs depending on the legal form of entity. As well, pre-emptive rights can be altered/modified in the by-laws (although it is not usual, sometimes these alterations/modifications are only in private stakeholders’ agreements without changes in the by-laws). Employees do not have specific rights in case of shares deal.
- Assets deal: considering the transfer of essential assets or a business unit, the General Shareholders’ Meeting of the seller entity (the company owning the assets) has to approve the proposed transfer.
Employees related to the assets transferred pass to the purchaser entity keeping all their employment conditions. Seller and purchaser entities have to inform in advance their respective employees about the date of transfer and the reasons, consequences and measures to be adopted from a labour perspective in relation to the transfer proposed. As well, seller and purchaser entities have to inform the Social Security authorities in order to de-register the employees involved as employees of the seller and the registration of the same as employees of the purchaser. Anyway, both seller and purchaser entities are jointly and severally liable of employment and social security obligations for the last three years related to the employees transferred.
Additionally, asset deals require: (a) consents from creditors to the new debtor; (b) notifications to debtors in order to inform them about the new creditor; and (c) as a general rule, consents from counterparties of agreements transferred, unless the respective agreement permits the transfer without consent.
Finally, it should be noted that: (a) additional information provided by law has to be submitted to the Spanish Stock Exchange Commission in case of listed companies; and (b) additional approvals could be required from: (i) anti-trust authorities, depending on the entities involved in the proposed transaction; and/or (ii) other regulatory authorities, in case of companies involved is sectors like financial, insurance or energy, among others.