스타트업 또는 벤처기업이 일부 주주(투자자)에게 사전동의권 등 우월한 지배구조상 권리를 부여하는 약정의 효력: 주주평등원칙에 더하여 이사회 권한 침해 문제를 중심으로

Abstract

The shareholder agreements between a start-up and one or some of its shareholders tend to include preferred governance arrangements which grant the shareholder(s) preferred control rights such as pre-approval rights and board composition rights. In Korea, it has been widely accepted that such arrangements are valid as the exception of the principle of equal treatment for shareholders. The recent ruling that the Korea Supreme Court rendered last year can be said to support the view that the preferred governance arrangements for a specific shareholder are valid as the exception of the principle of equal treatment for shareholders. However, in February this year the Delaware Court of Chancery held that a number of the governance-related provisions in a stockholder agreement between a company and its major shareholder were invalid on the grounds that they encroached the board’s authority in violation of DGCL § 141(a). The provisions required the board to obtain the shareholder’s prior written approval before taking various actions, limited the board’s discretion over the board’s size and composition and provided the shareholder with the right to have the shareholder’s designees on each board committee in proportion to the representation of the shareholder’s designees on the board as a whole. According to the Delaware Court, courts seized of the challenges under DGCL § 141(a) must conduct a two-part inquiry. First, to determine whether a challenged provision concerns DGCL § 141(a), the courts must ask whether the provision constitutes part of the corporation’s internal governance arrangements as opposed to an external commercial contract. Next, once the challenged provision qualifies as the internal governance arrangement, the courts must evaluate the challenged arrangement under the ‘Abercrombie Test’, which provides that governance arrangements violate DGCL § 141(a) when they have the effect of removing from directors in a very substantial way their duty to use their own best judgment on management matters or tend to limit in a substantial way the freedom of director decisions on matters of management policy. Under this two-part test, the Delaware Court declared invalid and unenforceable many of the challenged provisions. Considering the repercussion created by the Delaware Court of Chancery’s decision, Korean courts would also need to evaluate the governance arrangements granting one or some shareholder(s) preferred control rights under the fundamental statutory board authority as well as the principle of equal treatment for shareholders.