상장회사간 포괄적 주식교환의 실무적 문제

Abstract

In a share exchange between listed companies, it is necessary to coordinate the interests of related parties including the numerous minority shareholders of participating listed companies. Moreover, given that the share exchange between listed companies is governed by the Financial Investment Services and Capital Markets Act and other laws and regulations applicable to listed companies as well as the Commercial Act, such transaction gives rise to several unique issues from a practical perspective. In particular, the following matters can be examined in detail in connection with share exchanges between listed companies: ⅰ) submission of registration statement under the Financial Investment Services and Capital Markets Act; ⅱ) calculation of share exchange rate under the Financial Investment Services and Capital Markets Act and fairness of such calculation; ⅲ) if dissenting shareholders exercise their appraisal rights, determination and payment of share purchase price; ⅳ) actions to be taken with respect to appraisal rights held by any director or employee of a wholly owned subsidiary; ⅴ) problems with inaccurate disclosure regarding termination or invalidation of share exchange agreement; ⅵ) disposition of any fractional shares resulting from share exchange and ⅶ) actions to be taken when litigation claiming invalidation of share exchange is brought and possibility of the court allowing such claim. So far, there have only been few cases of share exchange between listed companies in Korea, and hence the theoretical discussion and practice regarding share exchange between listed companies have not been clearly established. We expect, however, that the practice of share exchange between listed companies and relevant theoretical discussions will further develop within the Korean legal framework so that such transactional method can more frequently utilized as an efficient method of corporate restructuring.