The Mergers & Acquisitions Review: Romania
Overview of M&A activity
According to the World Bank's Doing Business Report 2020, Romania is ranked 55th worldwide on the aggregate ease of doing business index, three positions lower than the previous year. However, Romania ranks first in the European and Central Asia areas regarding the ease of doing business across borders and is well above the average rankings of the region in areas such as getting credit, paying taxes, enforcing contracts and resolving insolvency procedures.2
From an economic perspective, after being one of the fast-growing economies, with a strong growth of the GDP in 2019, the economic growth of Romania was projected to slow to 3.2 per cent in 2020 and then to increase to 3.7 per cent in 2021.3 However, 2020 was profoundly influenced by the epidemiological crisis generated by the SARS-CoV-2 virus, and Romania was no exception. According to estimates published by the Romanian National Institute of Statistics, the GDP for the first semester of 2020 decreased by 4.6 per cent as compared to the first semester of 2019.4 However, after a slow first semester of 2020, moderated growth of the national economic activity is expected.5
As compared to 2018, the overall M&A activity in 2019 went up by 10 per cent year-on-year to 143 transactions. Deal value came down from the record levels seen in the preceding year, but the market still recorded several deals over €100 million. Furthermore, the country positioned itself well for international investors, and there remains a healthy interest from investors from the US and western Europe. The 2019 transactions in Romania amounted to approximately €2.82 billion In terms of transactions with a listed value, while the value of all transactions, including unlisted ones, is approximated €3.74 billion.
In the first quarter of 2020, the M&A activity recorded 19 transactions in Romania, four more compared to the same period in 2019. The total value of the market, including transactions whose values were not disclosed, was between €600 and 750 million in the first quarter of 2020, compared to €200–300 million in the first quarter of 2019, while the disclosed transactions accounted for €337 million as opposed to €120 million in the first quarter of 2019.6
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General introduction to the legal framework for M&A
The general framework for M&A activity in Romania is mainly governed by the Civil Code and Company Law, as republished and further amended and supplemented (the Company Law).7 The Civil Code provides the general legal framework governing legal entities as well as the general principles applicable to mergers and demergers. The Company Law provides the applicable rules for the sale and purchase of shareholdings in Romanian companies, as well as those applicable for share capital increases, mergers and spin-offs.
Notable recent amendments to the Company Law include the removal of: (1) the restriction that an individual or legal entity can only act as a sole shareholder in one Romanian limited liability company; and (2) the restriction that prohibits a Romanian limited liability company from having as sole shareholder a limited liability company that is also solely owned. The procedure for the transfer of shares in limited liability companies no longer requires a two phase procedure (with a 30 days opposition term), and now the transfer can be implemented much easier. These measures significantly simplify transaction structuring as well as related formalities when acquiring a Romanian limited liability company.
On a more practical note, registrations with the Trade Registry (which is the method for publicising operations of companies) follow the rules established by Trade Registry Law,8 as republished and further amended and supplemented, in addition to certain ancillary regulations.
In addition to the above, depending on the business activity of the target company, the following sector regulations may also be applicable:
- for public companies, the Capital Markets Law9 and various secondary enactments likely apply, as will Regulation 1/2006 on Issuers and Securities Operations, as further amended and supplemented. Public companies come under the supervision of the Financial Supervisory Authority (FSA);
- for insurance companies, the general framework is set forth in Law No. 237/2015 on the authorisation and functioning of insurance and reinsurance activities, and the supervision of the FSA also applies; and
- for banks, the main legislative framework is set forth by Government Emergency Ordinance No. 99/2006 on credit institutions and Regulation No. 5/2013 of the National Bank of Romania (NBR), and the supervision of the NBR also applies.
Investors doing business in Europe may find Romanian regulations somewhat familiar, as they are the product of the implementation of EU directives into Romanian law.
Law No. 137/2002 is the main piece of legislation governing company privatisations, which continues to be of interest to many major companies that are still state-owned. However, in August 2020 Law No. 17310 came into force, restricting the transfer of shares owned by the Romanian government in state companies, banks and other companies for the next two years. However, as Law No. 173 also provides the possibility for the Romanian State to acquire shares in companies that carry out economic activities in key fields (e.g., industry, energy and postal services), any future legislative changes should be closely monitored, especially given that there are several ongoing M&A processes in the aforementioned key fields where the state might be interested in acquiring a shareholding.
Competition law is also relevant in the M&A field, as economic concentrations between companies must be reviewed and competition must always remain fair. The Competition Law,11 as republished and further amended and supplemented, implements EU competition law and contains provisions on notifications to the Competition Council and the European Commission, and the related requirements and thresholds. Considering that the screening of foreign direct investments has been a hot topic for some time now across Europe, the Romanian Competition Council has put forward new draft legislation aimed at tightening the existing foreign direct investment screening rules. This draft is subject to public debate and sets forth new filing requirements, a detailed procedure to be followed, standstill obligations to be observed and fines, thus broadening the scope of the current investment screening regime.
In addition to the above, other legal provisions applicable to the particularities of each transaction may become relevant (e.g., environmental law, employment law and insolvency law). Furthermore in 2020, the Romanian government, like other governments around the world, implemented a series of measures to support the economy; given the uncertainty surrounding these measures and their applicability in time, this chapter only briefly touches upon some of them. However, the aforementioned need to be considered when looking into a potential investment in Romania.
Strategies to increase transparency and predictability
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Developments in corporate and takeover law and their impact
i Banking and finance
Law No. 209/2019 entered into force, implementing PSD II. The law provides regulations regarding the establishment, functioning and development of an issuing institution and aims to level the playing field for payment service providers (including fintechs and other new players). The NBR also issued secondary regulations for the purposes of implementing the above, as well as in relation to anti-money laundering regulations specifically applicable to credit and financial institutions.
ii Capital markets
Law No. 243/201912 entered into force, establishing a new, more detailed legal framework for alternative investment funds and introducing new requirements regarding their authorisation and functioning. The FSA also issued regulations for its implementation.
The NBR and the FSA also provided updated secondary legislation and solutions in response to the SARS-CoV-2 crisis, such as updated regulations to existing underlining provisions of Regulation No. 4/201313 and Regulation No. 5/202014 responding to the needs of issuing parties to conducting general meetings within the state of emergency period.
The Romanian gas market became even more attractive to foreign investors as, starting on 1 July 2020, following the entry into force of Government Emergency Ordinance No. 106/2020 (GEO 106/2020), the natural gas market was completely liberalised, and thus the price for the supply of natural gas to household customers is no longer regulated by the National Energy Regulatory Authority (ANRE). As such, the supply of natural gas will be made competitively, based on contracts concluded between household customers and suppliers.15
Another significant novelty in the energy sector is brought by Government Emergency Ordinance 27/2020 transposing the last paragraph of Article 2 of Directive No. 94/22/EC on the conditions for granting and using permits for prospecting, exploration and extraction of hydrocarbons, amending Petroleum Law 238/2004 in the sense that:
- the Romanian government reserves the right to refuse, for reasons of national security, the concession and execution of petroleum operations for the exploration, development and exploitation of a petroleum block by legal entities which are under the effective control of a legal or natural person that are not part of the EU; and
- transfers of rights and obligations related to a petroleum concession agreement and changes in control of the title holder of a petroleum concession agreement must be approved by government decision. Any transfer or change in control made without government approval shall be null.
However, it is important to note that there is significant opposition from the business environment in the oil and gas sector with respect to the government's prerogative of termination or modification of existing concession agreements, but also regarding the pre-approval of transfers to other entities, as these may affect petroleum operations in Romania and the willingness of foreign investors to invest in Romania.
In addition to the above, the government reintroduced long-term bilateral power purchase agreements (PPAs) after having been banned for almost eight years. Through Emergency Ordinance 74/2020, amending Energy Law 123/2012, PPAs are now allowed for power-generation capacities commissioned after 1 June 2020. Production from these capacities will be sold both on and outside the centralised market at negotiated prices in compliance with competition rules. Producers will offer all remaining electricity publicly, and without discrimination, on the competitive market after fulfilling their obligations to sell electricity to last-resort suppliers. The only exception will be for electricity from energy-generation capacities commissioned after of 1 June 2020, which can be sold through freely negotiated PPAs. The selling prices of electricity delivered by producers to suppliers of last resort are determined based on methodologies approved by ANRE. This long-awaited change is likely to regain investor confidence in the renewables sector, especially as it is supported by recent regulatory measures to transpose EU common market regulations in the electricity sector.
iv Tax and tariffs
As also noted in Section VIII, there have been several amendments to the tax legislation. Most of the amendments however are temporary and were adopted to manage the impact of the covid-19 pandemic generated by the SARS-CoV-2 virus, such as:
- Government Emergency Ordinance No. 153/2020, introducing new fiscal measures to stimulate the maintenance or increase of the equity position;
- Government Emergency Ordinance No. 99/2020 approving additional tax measures and deadlines extensions to support the business environment during recovery after the lockdown; and
- Government Emergency Ordinance No. 69/2020 implementing a tax amnesty for accessory liabilities, under certain conditions.
Other important amendments to the tax legislation include Government Ordinance No. 5/2020 implementing the EU Directive 2018/822 (the DAC 6 Directive) to provide a transparent framework for clamping down on tax avoidance and evasion in the EU.
Us antitrust enforcement: the year in review
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Foreign involvement in M&A transactions
At the end of 2019, according to the National Bank of Romania's (NBR) balance of payments and external debt, foreign direct investment in Romania in 2019 remained similar to that of 2018 at approximately €5.3 billion.16 However, according to the NBR balance of payments and external debt information for July 2020, foreign direct investment in Romania amounted to approximately €1.3 billion in the seven months of 2020, as compared €3.3 billion in the first seven months of 2019, this however being mainly due to the current pandemic.17
According to NBR data, the main sectors attracting foreign direct investments are manufacturing, construction and real estate, trade, financial intermediation and insurance. The main investing countries are the Netherlands, Germany, Austria, Italy and Cyprus. Bucharest remains the region that attracts most foreign capital in the whole country.
Significant transactions, key trends and hot industries
In 2019 the most attractive sectors for investors were information technology (IT) and communications, real estate, healthcare and pharma.18 Seven out of the top 20 deals of 2019 were in the telecoms and IT sector (not only top end companies but also IT start-ups). In 2019 there were 14 transactions in Romania valued at over €100 million, with an average deal value of approximately €201 million.
In 2020, the largest transactions at the end of the first quarter were: (1) the acquisition by CPI Property Group (CPIPG) of a minority stake in Globalworth, in a series of successive transactions, the largest amounting to approximately €280 million; (2) the transfer by OMV Petrom, the largest energy company in South-Eastern Europe, of 40 onshore oil and gas deposits in Romania to Dacian Petroleum; and (3) Brink's takeover of the cash operations business of UK-based G4S in 14 markets, including Romania, as briefly detailed below.19
i Media and publishing
The most important transaction was the acquisition of Central European Media Enterprises (CME) from the US based company AT&T by the PPF Group. CME is active in the Czech Republic, Bulgaria, Romania, Slovakia, and Slovenia, and is one of the leading media and entertainment companies in Central and Eastern Europe (CEE). The total deal value in Romania amounts €548.3 million, according to estimations based on CME's 2018 revenues attributable to Romania. Although the Romanian's competition authority cleared the transaction, the approval of the European Commission and of other regulatory authorities is still pending.
ii Telecoms and IT
UiPath, the Romanian founded world's leading robotic process automation (RPA) software company, raised €506.3 million in its latest investment round. The company is now evaluated at €6 billion, making it the fastest growing and highest-valued AI enterprise software company worldwide. The investment round was led by Coatue and joined by Dragoneer, Wellington, Sands Capital and funds and accounts advised by T Rowe Price Associates, Inc Accel, who led the series A and series B rounds, and CapitalG and Sequoia who led the series C round, all participated in this round, as did other existing investors, including IVP and Madrona Venture Group. Since 2017, the company managed to cultivate the world's largest community in RPA, now exceeding 400,000 users worldwide across 200 countries. UiPath is preparing a new round of financing that would increase its market value to over €8.5 billion.
iii Finance and insurance
Romanian state-owned bank EximBank completed in January 2020 the acquisition of a 99.3 per cent stake in Banca Romaneasca, the local subsidiary of the National Bank of Greece, for a deal value of €307.3 million. Thus, EximBank entered the Romanian retail banking segment, transforming itself into a universal bank. Following the transaction, the combined bank will feature among the top 10 banks in Romania with a market share of approximately 3 per cent.
Brink's purchased most of the cash operations of UK-based G4S plc, a global security and cash management company for approximately €730 million. The transaction is envisaged to be closed by the end of 2020 and the acquisition includes cash management operations in 14 markets: the Netherlands, Malaysia, Romania, Belgium, Ireland, Kuwait, the Czech Republic, the Philippines, the Dominican Republic, Cyprus, Indonesia, Lithuania, Estonia and Latvia. Brink's is the global leader in cash management, secure route-based logistics and payment solutions including cash-in-transit, ATM services, cash management services and international transportation of valuables.
iv Real estate and construction
The largest 2019 transaction in the real estate market was the takeover by AFI Europe of the Romanian office portfolio of NEPI Rockcastle (the biggest mall owner in Romania), consisting of four class A office projects including eight office buildings located in Bucharest and Timisoara, for a deal value of €290 million. AFI Europe Romania is one of the largest companies in the local real estate market. The group has completed and is developing major projects in the retail, office and residential segments in Bucharest, Ploiesti and Brasov.
CIPG completed the acquisition of a 29.4 per cent stake in Globalworth Real Estate Investments, in a two-step exit of the company's founder and CEO, Ioannis Papalekas. The acquisition of 6 per cent was agreed at a price of €9.85 per share. In February 2020, Ioannis Papalekas sold its remaining stake of 10.7 per cent at €9.7 per share (for a total of €230 million) together with warrants over €2.83 million Globalworth shares (for €7.3 million) and other assets (worth €39 million). CPIPG is among the largest owners of income-generating real estate in CEE and Berlin, with a property portfolio exceeding €8 billion. Globalworth is a leading owner of office properties in Poland and the largest office owner in Romania, with a portfolio worth more than €1.2 billion.
v Betting and gaming
Following a €175 million strategic investment by the Blackstone Group in 2019, the Superbet Group acquired a 60 per cent stake in online casino operator Lucky 7 (founded by Olof Orn, Karl Ahlberg and Magnus Petersson). The financial terms of the deal were not disclosed, but Superbet said the purchase marks the second step in its strategy, having made an initial investment in the platform during its start-up phase in early 2019. Superbet is the largest omni-channel sports betting and gaming operator in Romania. Founded in 2008 by CEO Sacha Dragic, Superbet's retail network spans across over 1,200 shops in Romania and Poland and offers customers pre-match and live sports betting, slots, virtual betting and lottery offerings.
Prague-based Zentiva Group owned by Advent International completed the acquisition of US-based drug maker Alvogen's CEE business in Romania, Bulgaria, Croatia and several other countries. Alvogen develops generic, brand, over-the-counter (OTC) medicines and biosimilars and operates manufacturing and development facilities in the US, Korea, Romania and Taiwan. The company's CEE business involves more than 200 generic and OTC medicines in various therapeutic areas, selling products across 14 CEE markets. In Romania, the acquisition concerned local pharmaceutical producer Labormed and included a 71,000 square foot manufacturing facility in Bucharest. In 2019, Zentiva also bought Romanian food supplement and OTC maker Solacium.
vii Energy and gas
Ingka Group which owns the IKEA network and stores, acquired an 80 per cent stake in seven wind farms in South-East Romania from Danish wind turbine manufacturer Vestas Wind Systems A/S. The acquisition consists of 64 turbines totalling 171 megawatts. Following this transaction, Ingka Group owns and operates 900,000 solar modules on its sites and 534 wind turbines in 14 countries.
UK-based Aik Energy, a company with a 22.5 per cent share on the Romanian market of independent gas suppliers took over Romanian company Valahia Gaz, which in turn had a 22.7 per cent market share. AIK Energy carries out activities such as natural gas extraction, wholesale electricity, natural gas wholesale, wholesale of crude oil and petroleum products.
Dutch-based NN Group increased its stake in Romanian natural gas producer Romgaz to 5.02 per cent for a deal value of approximately €50.6 million. Romgaz is one of the three Romanian companies that meet the eligibility criteria of the FTSE Global All Cap Index.
viii Retail and consumer goods
Hungarian online electronics retailer Extreme Digital created a joint venture with the Hungarian subsidiary of the Romanian company eMAG, owned by the South Africa's Naspers group, forming one of the largest players on the CEE e-commerce market. The newly created entity will be owned by eMAG with a 52 per cent stake and Extreme Digital with a 48 per cent stake. As a result of the merger, eMAG has expanded its operations in the Czech Republic, Slovakia, Slovenia, Croatia and Austria.
Financing of m&a: main sources and developments
Pursuant to NBR data, banks have generally tightened credit standards for all categories of companies, mainly influenced by the general economic situation and the risk associated with the specific industry in which the company is active. However, the percentage of banks that continued to tighten credit standards decreased in the second quarter of 2020 due to fiscal and monetary measures taken to support the economy. In this respect, in addition to existing state aid schemes and public funding available in Romania, the government also recently initiated the SME Invest programme, which grants funding for investment loans and lines of credit for working capital, in the name of the Romanian state.
Private equity investments showed a consistent growth during the last few years, reaching around 30 per cent of the M&A market and remained at a robust level during the first half of 2020. In this respect, equity investments accounted for €779 million (net amounts), and intragroup loans recorded a net value of €547 million, pursuant to NBR data.
Pursuant to NBR data, between June 2019 and May 2020, the main sources of funding used by companies remained internal ones. Bank loans remain a much less used option, and the number of companies that opt for commercial loans and bank overdrafts declined.
From an M&A perspective, the rules governing the transfer of employees in an asset deal, set out by the Law on Safeguarding Employees' Rights in the Event of Transfers of Undertakings, Businesses or Parts of Undertakings or Businesses (TUPE Law),20 which transposes EU Directive 2001/23/EC, should be considered.
Under the TUPE Law, in order to protect employees, every time a transfer of an undertaking (or a part thereof) occurs, all of the target undertaking's employees are transferred automatically by operation of law (no consent is required from the transferor, the transferee or the employees), and no cherry-picking is allowed. The purchaser must observe all rights and obligations resulting from existing employment contracts at the time of the transfer and has the obligation to honour all rights until the relevant contracts expire or are terminated. However, the purchaser can renegotiate the collective agreement with the employees' representatives one year after the transfer date.
In general, share deals do not impact employment relations at the target level (or at the subsidiary level), as the identity of the employer remains the same. Romanian legislation does, however, set out general employee-related information and consultation requirements in the context of M&A transactions, but they only apply if a proposed share deal significantly impacts working conditions. Even if the law provides that a consultation should be carried out regarding decisions that could significantly affect employees, there is no express obligation to accept employees' proposals or to sign any related agreements. However, failure to comply with the information and consultation requirements may be sanctioned with fines.
In addition, in the case of a voluntary takeover of a public company, the target's board must inform its employees of the terms of the takeover and the board's position on the attempted takeover. The target's employees may issue a written opinion on the matter to be provided to the bidder, the shareholders and the market.
Following the covid-19 pandemic, the government has taken measures to support the affected companies and their employees including by compensating an unemployment indemnity of 75 per cent of the employees' base salary corresponding to their position (but no more than 75 per cent of the average gross salary) if the employers' activity was interrupted or reduced during the state of emergency. Even though these measures are temporary, if an acquisition in Romania is considered, these measures would need to be considered and compliance with the temporary legislation checked.
Many of the recent amendments to Romanian tax law were enacted in response to the covid-19 pandemic and concern tax levies, bonifications, delays in enforcement and similar measures to help companies affected by the crisis. However, as further detailed below, there are several generally applicable measures aimed at helping the business environment in Romania.
On 4 September 2020, Government Emergency Ordinance No. 153/2020 was enacted introducing progressive bonifications for companies if they improve their equity position. More specifically, companies paying corporate income tax (CIT), microenterprise income tax or activity-specific tax, could be eligible for receiving the following bonifications (cumulatively) if they improve their equity position compared to previous years:
- for 2021, the bonification is 2 per cent of the tax due, if the equity is positive the increases (specific thresholds range from up to 5 per cent to more than 25 per cent); and
- starting with 2022, the bonification is 3 per cent of the tax due if the percentage increase in the adjusted equity (as compared to the value recorded in 2020) is of at least 5 per cent in 2022, 10 per cent in 2023, 15 per cent in 2024 and 20 per cent in 2025 (subject to the if accounting equity of the company being positive).
Romania also implemented EU Directive 2018/822 (DAC 6) through Government Ordinance 5/2020. The provisions of Government Ordinance 5/2020 are similar to DAC6 in terms of definitions of cross-border arrangements, reportable cross-border arrangements, hallmarks, relevant taxpayers, marketable arrangements and bespoke arrangements. However, Romania opted to defer the implementation of DAC 6, as a result of Council Directive 2020/876 of 24 June 2020, and the following deadlines are now applicable:
- for reporting cross-border arrangements for the period 25 June 2018 to 31 June 2020, the deadline is extended from 31 August 2020 to 28 February 2021;
- for reporting cross-border arrangements related to the period 1 July 2020 to 31 December 2020, the starting point of the 30-day term for reporting the information is extended from 1 July 2020 to 1 January 2021; and
- for the first quarterly report comprising new or updated information about marketable arrangements, the deadline for communication by intermediaries is extended from 31 October 2020 to 30 April 2021.
There was limited development of competition legislation in Romania during the past year. In this respect, the Romanian Competition Council published new guidelines regarding the individualisation of sanctions for contraventions set forth in Article 55 of the Competition Law, which brings further clarity to the terms and conditions under which companies are sanctioned by the authority for breaches of competition law. Furthermore, a new set of Guidelines on the conditions and criteria for the application of leniency policies in cases of anticompetitive agreements or concerted practices were published, establishing the grounds for offering immunity from fines or a reduction thereof.
In addition to the above, as the screening of foreign direct investments (FDIs) has been a hot topic for some time now, several jurisdictions have adopted stricter measures of scrutiny allowing for the vetting of transactions potentially posing security risks. In line with this trend, the Romanian Competition Council has put forward new draft legislation aimed at tightening the existing FDI screening rules (which was supposed to enter into force in October 2020 but has not yet been enacted). Under the current rules foreign (and domestic) investments in sensitive sectors would fall under the scrutiny of a state defence authority, directly subordinated to the President of Romania, and the new FDI regime will broaden the scope of the investment screening in line with applicable EU legislation.
Given that in the first quarter of the year over 20 M&A transactions were recorded, with a market value estimated around €600 and €750 million, Romania seems less affected by the covid-19 crisis than other countries in CEE.
For the Real estate and constructions sector, the total transaction volume in the first half of 2020 Romania was still 21 percent higher compared to the same period in 2019, the market being driven by office projects in Bucharest. Thus, Bucharest accounted for almost 90 per cent of the total transactions volume, estimated at €410 million, according to a JLL Romania analysis. The successful closing of such transactions in an economic context marked by covid-19 demonstrates investors' confidence in the potential of assets and the market.
Regarding the Romanian market, an increase in the number of transactions (whether we are talking about mergers or acquisitions or purchases of distressed assets or corporate restructuring) is expected in the energy sector (especially renewable energy), financial services, IT&C and medical services. Strategic investors will seek to acquire companies to increase their market share and will invest in new technologies through the acquisition of companies in this field, whereas the financial investors – having significant liquidity – will look for targets in the 'winner' sectors as a result of the pandemic, as well as new opportunities offered by the current context.
Furthermore, given that, as of September 2020, Romania has been reclassified from frontier to secondary emerging market status (by FTSE Russel), it is expected that there will be a significant increase in stock market capitalisation. Thus, Romania is expected to develop into an increasingly dynamic and competitive market, becoming an important player on the financial markets in the region, which should also increase confidence of foreign investors.
1 Horea Popescu is a partner and Claudia Nagy is a senior associate at CMS Romania.
7 Company Law No. 31/1990.
8 Trade Registry Law No. 26/1990.
9 Law No. 297/2004 on capital markets.
10 Law No. 173/2020 on certain measures to protect national interests in economic activities.
11 Competition Law No. 21/1996.
12 Law No. 243/2019 on the regulation of alternative investment funds and for the amendment and completion of some normative acts.
13 FSA Regulation 4/2013 on support actions for certificates of deposit.
14 FSA Regulation 5/2020 for the adoption of measures regarding the conduct of general meetings of issuers during the existence of the state of emergency generated by covid-19.
20 Law No. 67/2006 on Safeguarding Employees' Rights in the Event of Transfers of Undertakings, Businesses or Parts of Undertakings or Businesses.