在目前中国律师界实践中，并购律师在大型的并购案件的早期就介入商业合同的谈判和起草，但对于涉及大规模员工安置的案件，劳动法律师却往往仅在合同签订后的执行阶段才实质性介入。大家往往容易忽略的一个问题是，并购交易结构的设计、合同条款的内容和谈判过程都有可能会对后续的员工安置产生重大影响。如果并购交易律师能在案件前期就充分考量这些因素，将会有助于员工安置的稳定进行，也能帮助客户节省不少交易成本。下面特举一案例予以说明。

In the current Chinese legal practice, merger and acquisition ("M&A") lawyers will be engaged in the large-scale M&A deals at the outset, i.e. when the M&A agreement is negotiated and drafted. However, employment lawyers will normally only participate substantially in the deal after the execution of the M&A agreement in order to implement the employee settlement work.  This may result in a problem which is normally ignored by companies, i.e. the design of the structure of the merger and acquisition deals and the content and negotiation process of the M&A agreement may have a significant influence on the follow-up employee settlement work. If M&A lawyers can consider these issues at an early stage, the subsequent employee settlement project will be implemented more smoothly and it will save much transaction cost for companies.  The case below illustrates this point. 

外方股东先向收购方转让超过50%的股权，使收购方取得控股权；但因为收购方缺乏管理制造业企业的经验，在收购方取得公司100%股权之前的过渡期内，外方股东仍持有极小部分的股权，继续管理公司的日常运营；

transfer of more than 50% shares held by the foreign shareholder to the Acquirer, so that the Acquirer became the controlling shareholder; since the Acquirer was inexperienced in managing manufacturing enterprises, the foreign shareholder kept holding a minimum portion of shares and continuing to manage the Company on a daily basis in the transaction period before the entire 100% shares of the Company was transferred to the Acquirer;

随后，中方股东通过挂牌竞拍的方式向收购方转让其持有的全部股权，以实现中方彻底退出（但这一步骤因为竞拍中可能出现出价更高的第三方而存在不确定性）；

transfer of all shares held by the Chinese shareholder to the Acquirer through bidding and auction, after which the Chinese shareholder would completely quit from the Company (however, this step cannot be guaranteed because a third party other than the Acquirer might win the bidding in the auction by offering a price higher than that of the Acquirer);

由于收购完成后公司将从生产型企业转型为第三产业企业，收购方要求公司与现有的所有员工解除劳动合同，安置事宜由外方全权处理，在中方退出后启动。公司所有员工的劳动合同解除后（或收购方届时认可的其他条件成就时），外方股东方向收购方转让剩余的股权，收购方实现100%控股。

Since the Company would be changed from a manufacturing enterprise into an enterprise engaged in the tertiary industry, the Acquirer required the Company to terminate labor contracts with all of its employees. The employee settlement work would be handled by the foreign shareholder after the completion of the Chinese shareholder’s equity transfer.  After termination of all employees’ labor relationships or achieving any other settlement results acceptable to the Acquirer, the foreign shareholder could transfer the remaining shares to the Acquirer and the Acquirer would become the sole shareholder of the Company.   

(1)股权转让价款公开挂牌竞拍

Public Bidding of Share Transfer Price

首先，由于中方股东是一家国有企业，为避免国有资产流失，其股权转让依法必须通过公开挂牌的方式进行。本案中根据产交所的要求采纳了网络挂牌竞拍程序，任何公众都可以在网上看到竞拍的全过程。竞拍程序发生在大股东已经出售了公司控制权，小股东又决定出售其持有的全部股权之时，公司究竟何去何从是员工最迫切关心的问题。可以想见，公司的很多员工都一起围观了这一在线竞拍过程。

First of all, since the Chinese shareholder was a stated-owned enterprise, its equity transfer price shall be put up forbidding in order to prevent the loss of stated-owned asset.  In this case, the bidding process was conducted online according to the requirement of the local Assets and Equity Exchange and thus the public could observe the whole process online.  This online bidding occurred at the moment when the previous controlling shareholder had already transferred the majority of its shares and now the minority shareholder decided to sell all shares held by it as well. So which company will obtain these target shares became the top concern of the employees.  When the result of the bidding would decide the fate of the Company, it was predictable that many employees of the Company watched this online bidding process. 

包括收购方在内有多家公司一起参与网络竞拍，短短的几小时内，转让价款上涨了好几千万。见证了价格在短时间内飙涨后，再客观理性的员工也会忍不住去想他们是否能从股权转让价款，或者至少竞拍溢价中分到一部分钱，部分员工由此认为经济补偿金应该是人人拿到一百万。

Several companies, including the Acquirer, participated in the online bidding process. The transfer price jumped by RMB several ten millions within several hours.  After having witnessed the skyrocket of such price, even the most objective and rational employee couldn’t help wishing to share a piece of cake in the transfer price, or at least in the bidding premium. Some employees even held that the amount of severance fee should be 1 million per person. 

虽然抽离出这一事件本身，旁观的大部分人都能理解股权转让价款的多少与协商解除劳动合同的经济补偿在法律上是两个层面的事情，但是作为对公司做出了长期贡献且面临失业困境的员工而言，很难以如此客观而冷静的态度面对。从他们的角度而言，股东出售股权获取了超额利润，而他们则因此丧失了饭碗，股东与员工进行部分利润分享，是再合理不过的事情。

Although from the legal perspective, most spectators can logically conclude that the share transfer price has nothing to do with the amount of severance fee, it was very hard for the employees, who had made long-term contributions to the Company and faced with the upcoming unemployment crisis, to behave and respond in such an objective and calm way.  From their perspective, they felt they were fully entitled to share the profit gained by the shareholders through the share transfer because such profit was gained at the cost of their jobs.

(2)收购协议中股东为员工安置做出的预算

The Shareholders’ Budget for Employee Settlement Work Contained in the M&A Agreement

当公司股东和收购方磋商收购协议条款时，一个重要议题就是哪一方来负责员工的安置以及安置成本如何分担。作为合资企业，成本理应由中外股东双方根据股权比例分担，这点无需多言。但是，在合同谈判阶段，很难预测最终需要多少成本，因此双方必须想出一个方案来分摊风险。经过磋商和博弈，双方同意：（1）外方全权负责员工安置事项以及由此产生的所有成本、风险，包括政府沟通、维护厂区安全、员工谈判及合同的签订、员工离职补偿金的支付、聘请任何专业第三方的成本以及后续潜在诉讼争议的应对等等;（2）作为中方可以退出参与员工安置事宜，不承担任何风险的对价，中方股东愿意按照一个非常高的补偿金总额（远高于合理预期，以下简称"超高额"）来承担相应比例的成本。这一协商结果，在商业上是具有合理性的，是双方对交易风险的分配。

When the shareholders of the Company and the Acquirer were negotiating details of the M&A agreement, one major topic was which party should be responsible for the settlement of the employees and how the settlement cost should be incurred.  It was fair that the Chinese shareholder and the foreign shareholder should apportion such cost according to their respective shareholding ratios.  The difficulty was that the final and actual cost cannot be predicted in advance.  So, there should be a method to share the potential risks.  After negotiation, it was agreed that: (1) the foreign shareholder shall be solely responsible for handling the employment settlement work and bear all costs and risks arising therefrom, including communication with government, maintaining the security of the factory, negotiating with the employees and signing contracts with them, paying severance fee to employees, bearing costs to hire any third party professionals and coping with any potential legal disputes; and (2) as a consideration to exit from the employee settlement work and bearing no risk at all, the Chinese shareholder was willing to calculate its proportional cost based on a very high amount of total severance fee (much higher than reasonable expectation, hereinafter, the "Extreme High Amount"). This negotiation result is an allocation of transaction risks between both parties and has its business rationality. 

虽然收购协议谈判是在股东层面进行，公司人员没有参与，但中方股东为员工安置事项承担的赔偿金总额却仍然不胫而走，最终为公司员工所知晓。因为中方在交易中按照超高额为前提承担了对应的成本，于是，员工"默认"股东的预算就是这个超高额，并把这个超高额，而非公司向他们提出的高于法定标准的协商解除方案，视作了谈判起点。他们深信，只要施加的压力足够，即使这个超高额也是可以被突破的。至于股东双方之间为什么会形成这一个预算，这背后的商业原因是什么，则不是员工所关心的问题。总之，并购谈判过程中泄露出去的中方股东承担的员工安置成本让公司在协商解除过程中一直处在非常被动的位置，无法切入正常的谈判区间与员工进行协商。

Although the M&A agreement was negotiated by the shareholders and without any company employee’s participation, the total amount of severance fee borne by the Chinese shareholder for the employment settlement work was still leaked to the employees of the Company.  Since the cost borne by the Chinese shareholder was calculated based on the Extreme High Amount, the employees took the Extreme High Amount as the shareholders’ budget directly.  In the negotiation process, they regarded this Extreme High Amount, instead of the compensation amount as proposed by the Company which was above legal standard, as the negotiation threshold.  They even pushed for more because they thought a budget could always be exceeded as long as enough pressure was imposed.  Employees did not care about how the so called budget was calculated and whether there was any business consideration behind such budget.  In summary, the leakage of the total amount borne by the Chinese shareholder for the employment settlement work placed the Company in a very passive position in the whole negotiation process and made the Company unable to negotiate with the employees in a normal range.

特别声明：

以上所刊登的文章仅代表作者本人观点，不代表北京市中伦律师事务所或其律师出具的任何形式之法律意见或建议。

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