다단계 M&A

Abstract

Multi-tier reorganization is an M&A transaction, in which plural M&A tools are sequentially used in one M&A transaction. It's nowadays frequently observable in everyday M&A market worldwide. It takes place in Korea relatively seldom, because of the relatively high ratios of the SPA(stock purchase agreement) and the merger in domestic M&A market there. The author presents at first several cases relating to this type of M&A transaction, encompassing those of the major economic powers, like US, EU and Japan. He goes thereafter onto the frequently asked questions on this type of M&A, like the coerciveness of takeover bid, the legitimacy of the two-tier frontloaded tender offer, the relationship between the TOB price and the fair price to be calculated in the following appraisal proceeding, the problem of appraisal arbitrage and the main questions of the related party transaction. He points out in especially that the TOB price should be the bottom by deciding the fair price in an appraisal proceeding that takes place following the dissenters' exercise of the appraisal right. In relation to the related party transaction in forms of the squeeze out, he emphasizes the meaning of the measures securing the procedural fairness of the M&A transaction, done by the acquiror, like the establishment of the special independent committee and the implementation of the majority of the minority. In the end he went onto the problem of appropriate distribution of synergy coming out of the restructuring in forms of ALT and RPT. He presents thereby in especially the japanese case law, which have been released in the year of 2011 and 2012 by the Highest Court of Japan, that encompasses the but-for price (=nakariseba price) in the event of negative or non-existence of synergy and the synergy considering price in the event of positive synergy.