미국 M&A법의 최근 동향 - 계약 속 방어수단(embedded defenses)의 적법성을 중심으로 -

Abstract

This paper aims to introduce the embedded defenses which are being used as a defense substitution in U.S.A.. An embedded defense means a term embedded in a contract with a nonshareholder counterparty that has an antitakeover effect. Today, the poison pill which was the most important takeover defense of the past 20 years in U.S.A. is under attack. And, as the use of the poison pill declines, target boards increasingly engage in defense substitution. A notable example of an embedded defense is the inclusion of a "change of control" provision in an everyday business contract that imposes costs on the firm in the event of a change of control. Pre-bid embedded defenses are very difficult for the court to regulate, because they are adopted in the context of everyday business, often well before a tender offer might ever emerge. Also these defenses come clothed as otherwise legitimate business transactions that potentially confer significant benefits on the firm. However, in Air Line Pilots Ass'n, International v. UAL Corp., the federal district court invalidated the protective covenants(embedded defenses) in the collective bargaining agreement under Unocal test. And the Seventh Circuit Court, after identifying the protective covenants as antitakeover devices, affirmed the district court's holding, too. The Seventh Circuit stated, "Delaware law requires that defensive measures as these be adopted with concern for the interests of shareholders." As they did in the past, managers will creatively invent new defenses to meet new threats to their control in the future. From this business practices, we could consider that while the legal regulation could limit the certain kinds of defensive tactics available to managers, it could not reduce managers' desire to deter hostile bids. It is because managers would have available to them a wide range of unregulable defenses like the pre-bid embedded defenses. It is the writer's opinion that we should have a constant interests in the new trends in U.S.A. M&A Law.