역삼각합병제도의 도입을 둘러싼 상법상의 쟁점
Legal Issues Surrounding the Implementation of the Reverse Triangular Merger in the Commercial Act
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Recently Korea Government has pronounced the policy for introducing the reverse triangular merger in order to revitalize corporate mergers and acquisitions especially against the small and medium sized companies and venture business corporations. The reverse triangular merger is a situation in which a targeted company is merged with a subsidiary of the acquiring company, which is liquidated as part of the merging process with the newly acquired target company. The end result is that the target company becomes a wholly owned subsidiary of the acquiring parent company, allowing the shareholders in the target company to receive shares of stock issued by the acquiring parent company. The reverse triangular merger is generally conceived not to be directly permitted under the current Korean Commercial Act, but it has been widely used as one of the corporate reorganization methods in the U.S. since the middle of '90s and has been introduced in Japan since 2006. One of essential factors for implementing the reverse triangular merger in the Commercial Act is that the merger subsidiary has to be permitted to acquire the parent stocks for exchange between the parent and target's shares, which is prohibited in the current Act. In this paper, some legal issues surrounding the implementation of the reverse triangular merger are analysed and also some legislative recommendations are suggested in four points such as the legal capital regimes, subsidiary’s acquisition of the parent stocks, exchange between the parent’s and target’s shares and protection of the parent's minority shareholders. In conclusion it is stressed that infrastructure of domestic M&A market, competitiveness between the domestic and foreign investors and regulatory environments of the M&A transactions are to be carefully considered before making the final legislative decision for introducing the reverse triangular merger.
Abstract
Recently Korea Government has pronounced the policy for introducing the reverse triangular merger in order to revitalize corporate mergers and acquisitions especially against the small and medium sized companies and venture business corporations. The reverse triangular merger is a situation in which a targeted company is merged with a subsidiary of the acquiring company, which is liquidated as part of the merging process with the newly acquired target company. The end result is that the target company becomes a wholly owned subsidiary of the acquiring parent company, allowing the shareholders in the target company to receive shares of stock issued by the acquiring parent company. The reverse triangular merger is generally conceived not to be directly permitted under the current Korean Commercial Act, but it has been widely used as one of the corporate reorganization methods in the U.S. since the middle of '90s and has been introduced in Japan since 2006. One of essential factors for implementing the reverse triangular merger in the Commercial Act is that the merger subsidiary has to be permitted to acquire the parent stocks for exchange between the parent and target's shares, which is prohibited in the current Act. In this paper, some legal issues surrounding the implementation of the reverse triangular merger are analysed and also some legislative recommendations are suggested in four points such as the legal capital regimes, subsidiary’s acquisition of the parent stocks, exchange between the parent’s and target’s shares and protection of the parent's minority shareholders. In conclusion it is stressed that infrastructure of domestic M&A market, competitiveness between the domestic and foreign investors and regulatory environments of the M&A transactions are to be carefully considered before making the final legislative decision for introducing the reverse triangular merger.
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