공개회사에 있어서 폐쇄기업화거래의 환경 및 규제 － 미국의 연방법 및 주판례법을 중심으로 －
Environment and Regulations of going Private Transactions in the United States
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【Abstract】 Environment and Regulations of going Private Transactions in the United States Yook, Taewoo In the United States, the time for going private transactions is ripe. A slow economy and mounting regulatory burdens are forcing companies to question whether public status is worth its costs. Capital markets have been effectively closed to many small and mid-caps by economic downturn and limited analyst coverage, and the enactment of the Sarbanes-Oxley Act has brought with it highly elevated compliance expenses that often disproportionately burden smaller companies. Many firms seeking to avoid such market punishment and regulatory costs and to capitalize on other benefits of private status, such as focus on long-term value maximization and decreased agency costs, are increasingly engaging in going private transactions. As a company goes private, it is confronted with various decisions, requirements, and obstacles, all of which have been the focus of this paper. The company must take care to follow the guidelines of federal disclosure laws (Rule 13e-3) and state laws of fiduciary duty and fairness, which will generally require the engagement of a properly functioning committee of independent directors, financial advisors, and counsel. It must also face the decision of how to finance the going private transaction, which will likely be highly leveraged and may involve the use of an ESOP. The acquiring group must determine whether the transaction should be structured as a long-form merger, a tender offer followed by a short-form merger, a reverse stock split, or an asset sale and dissolution. Key considerations when choosing among these transactions are applicable standards of review, the availability of shareholder appraisal rights, the requirement of stockholder approval, and the time and cost of the transaction. Recent American court rulings have made the tender offer the transaction of choice for controlling shareholders taking the company private, though other situations may urge the consideration of an alternative structure.
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