미국법상 M&A계약의 거래보호약정(Deal Protection Measures)에 있어서 Go-Shop 조항에 관한 연구
A Study on Go-Shop Provision in Deal Protection Measures in the U.S. M&A Transactions
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Abstract
Although the market for corporate control in South Korea has been shrunk due to the recent global financial crisis since the late 2008, the supply and demand in the market in Korea still seem to be sufficient to invigorate M&A transactions in the near future. As the number of M&A transactions increase, the competition between acquiring companies would be intense and, naturally, the number of M&A contracts that adopt various deal protection measures is expected to increase in the M&A market in Korea. Especially, the number of contracts which adopt some deal protection measures would increase when a Koran corporation tries to make an M&A contract with a U.S. corporation that often uses deal protection measures. Unlike everyday consumer transactions, the purchase of a public company cannot be completed prior to the fulfillment of certain closing conditions. These conditions include shareholder approval, the preparation and filing of a proxy statement, and so on. Because of the time needed to accomplish these required closing conditions, the interim period between signing the M&A contract by both boards and closing the transaction can stretch from several weeks to several months, or beyond. During this period, there is high possibility that a third acquirer with superior bid interrupts and destroys the initial transaction. For this reason, the initial acquirer will seek to prevent its proposed transaction from being interrupted by a third party through adopting various deal protection measures. Athough go-shop provisions initially surfaced during the late 1980s, the provisions received scant attention from the M&A market until dealmakers began utilizing the provisions with increasing frequency over the past four years as a means of fulfilling the board's Revlon duty to maximize shareholder value. This article tries to review the arguments about deal protection measures focused on go-shop provisions in the U.S. and explore the implications for the board's duty of care(§382) and duty of loyalty(§382-3) under the Korean Commercial Law. In short, it would be desirable to consider the adoption of go-shop provision for M&A transactions in Korea to resolve some legal problems/issues regarding to the board's breach of duty of care claim with respect to deal protection measures. However, there should be some actions taken as an assumption that we need to positively quote and construe the theories of fiduciary duty, business judgment rule, and enhanced standard of review of the board's conduct under M&A circumstances in the U.S.
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