Corporate Reorganisations 2019 Reorganisations Corporate Corporate Reorganisations 2019 Contributing editors Nick Cline, Robbie McLaren and Frederick Brodie Latham & Watkins © Law Business Research 2019 Publisher Tom Barnes [email protected] Subscriptions Claire Bagnall Corporate [email protected] Senior business development managers Adam Sargent Reorganisations [email protected] Dan White [email protected] 2019 Published by Law Business Research Ltd 87 Lancaster Road London, W11 1QQ, UK Contributing editors Tel: +44 20 3780 4147 Nick Cline, Robbie McLaren and Frederick Brodie Fax: +44 20 7229 6910 Latham & Watkins The information provided in this publication is general and may not apply in a specific situation. Legal advice should always be sought before taking any legal action based on the information provided. 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Encompass Print Solutions Tel: 0844 2480 112 London April 2019 Reproduced with permission from Law Business Research Ltd This article was first published in May 2019 For further information please contact [email protected] www.lexology.com/gtdt 1 © Law Business Research 2019 Introduction Nick Cline, Robbie McLaren and Frederick Brodie Latham & Watkins ‘Corporate reorganisation’ is something of an umbrella term, and is used reorganisations are equally varied, with some jurisdictions recognising in many different contexts to mean a multitude of different things. At corporate mergers (such as the cross-border merger regulations appli- one extreme, a reorganisation may refer to ‘paper’ changes to a corpo- cable in the EU) or providing mechanisms for transferring businesses rate group’s funding and capital structure that, ultimately, have little comprising assets and liabilities relatively easily, while others do not. or no impact on customers, suppliers or employees of the companies Large, multi-jurisdictional reorganisations are nearly always complex concerned. At the other extreme, a full ‘operational’ reorganisation can and time-consuming, making careful coordination, timing and project involve fundamental changes to the way a business operates, affecting management between jurisdictions important considerations. Some day-to-day trading arrangements with customers and suppliers, having legal systems have procedures that allow reorganisations to be under- a major impact on employees and affecting regulatory status. It is taken privately, whereas others are more public in nature, owing to important to draw a distinction at the outset between the solvent corpo- matters such as creditor notification obligations, or the necessity of rate reorganisations that are the focus of this guide, and insolvent or involving courts to effect or approve reorganisation steps. financially distressed restructurings, the latter of which is addressed In all but the most straightforward ‘paper’ reorganisations, it will separately in Lexology Getting The Deal Through – Restructuring & be necessary to identify and communicate with key stakeholders. To Insolvency. employees, regulators and contractual counterparties, simply hearing Reorganisations broadly fall into two categories: internally driven that a company is undergoing a reorganisation can cause concerns and externally driven. Internally driven reorganisations are those caused about potential job losses, compliance with regulatory requirements or by factors relating specifically to the group itself, such as trading perfor- reductions in creditworthiness and reliability. These concerns can often mance and corporate acquisitions, disposals and mergers. Externally be addressed by communicating early and clearly with stakeholders driven reorganisations include factors such as the economic environ- and consulting them where appropriate. Employees in particular are ment, changes in laws, or tax regimes and geopolitical pressures, all afforded extensive rights and protections in some countries and may of which can be incentives for company managers to undertake busi- have an automatic entitlement to be consulted, even where no redun- ness reviews and seek to optimise their company’s performance and dancies or changes to working conditions are anticipated. Consultation prospects. Consequently, the objectives of a reorganisation are hugely obligations can be complicated by the presence of collective bargaining diverse and typically multifaceted. In practice, this means that many or representation arrangements, and this is a particularly important businesses, and particularly very large businesses, will experience issue in industries and jurisdictions where work forces are unionised or at least some drivers for reorganising frequently or even constantly. represented by works councils. Where such formal structures exist, the Recent years have seen tax-driven inversions and re-domiciliations level of engagement may be prescribed; although, even in jurisdictions by high-profile multinationals. Operationally, the relatively low growth where that is not the case, the need to preserve industrial relations environment in Western economies since 2007–2008 has seen corpo- may dictate a certain level of employee involvement in the reorgani- rate groups focus on increasing bottom line profits through cost-cutting sation process. Straightforward ‘paper’ reorganisations involving an and efficiency measures. Analysis by McKinsey in 2016 indicated that intragroup transfer of shares in a wholly owned subsidiary may seem approximately 60 per cent of companies in the S&P 500 had undertaken unlikely to present material issues, but may nonetheless inadvertently significant cost-reduction or reorganisation activities in the preceding trigger change-of-control provisions in contracts with customers and five years. suppliers, or result in a breach of the terms of a regulatory licence or Unlike many of the areas dealt with in Lexology Getting The Deal finance and security documents. The examples outlined here are just a Through’s series of guides, corporate reorganisations are typically sample of the issues that may arise in the context of reorganisations. quasi-internal transactions with no real counterparties to the group Groups should, therefore, consider the available options in the context undertaking the reorganisation. The lack of an adverse party or parties of the relevant circumstances, and select the most appropriate mecha- can make reorganisations easier to implement than other transactions nisms in each jurisdiction to minimise the risk of unexpected challenges in certain respects, as there is often no need to negotiate terms. That arising at or after implementation of the reorganisation. is not to say, however, that third parties are not involved, or that there are no challenging issues – on the contrary, corporate reorganisations Brexit nearly always involve a number of external and internal stakeholders, We must also mention the United Kingdom’s decision to leave the so giving due consideration to these parties’ interests is essential. The European Union. The decision was described by Jean-Claude Juncker, involvement of multiple third parties means planning, engagement the president of the European Commission, as posing an ‘existential and communication are critical to the successful implementation of a threat’ to the European integration project that has progressed across reorganisation. Depending on the nature and purpose of a reorganisa- much of Europe for decades. While the full terms and implications of tion, a company may need to draw on the expertise of legal, financial, the UK’s exit remain unclear even one month from 29 March 2019, tax, accountancy, regulatory, PR, employment and benefits, or other the scheduled date for Brexit, many large multinational