M&A에 있어서 락업(Lock-Up)의 適法性에 관한 法的 考察

Abstract

There are various types of defensive tactics in M&A according to classification standard. Adoption method is suitable for classification standard considering usability of defensive tactics. Defensive tactics can be classified into defensive tactics by article of incorporation, contract and recapitalization according to adoption method standard. Defensive tactics by contract can be most easily adopted and exercised among them. Lock-Up is a good example in defensive tactics by contract. Lock-Up is any arrangement or transaction through which the target gives the favored bidder who usually is a white knight a competitive advantage over other bidder. Generally Lock-Up includes provisions such as Stock Lock-Up Option, Asset Lock-Up Option, Topping Fee, Expense Reimbursement Provision, Termination Fee. A lot of legal problems will happen when Lock-Up is applied to Korean Commercial Code because Lock-Up is not originally come from legal system in Korea. A solution for such legal problems will be presented in association with application of Korean Commercial Code & Securities Exchange Act of Korea. New standard for legality about defensive tactics needs to be made for judging appropriately legality of Lock-Up in Korean Commercial Code. If Lock-Up taken by the management is not coincident with standard for legality, it will be illegal and the management has to be responsible for taking Lock-Up. New standard for legality about defensive tactics on the basis of Hyundai Elevator case will be presented in three kinds of way. First, if defensive tactics are codified in law & article of incorporation, it will be a standard that defensive tactics are within the scope of law & article of incorporation. Second, if defensive tactics are not codified in law & article of incorporation, reasonable purpose & suitability of defensive tactics and propriety of adoption process for defensive tactics will be a standard. Third, if control of target company is impossible to maintain by the current management, duty of improving shareholder’s interests will be applied to current management. Among various provisions of Lock-Up, legal problems related to Asset Lock-Up Option & Stock Lock-Up Option mainly happen when they are applied to Korean Commercial Code. Asset Lock-Up Option grants the favored bidder an option to purchase a significant target asset. The second standard for legality about defensive tactics that need reasonable purpose & suitability of defensive tactics and propriety of adoption process for defensive tactics is applicable to Asset Lock-Up Option. If transfer of significant target asset is transfer of material asset for business that has considerable effect on transfer or shutdown of all or material part of business, Asset Lock-Up Option needs the special resolution of general meeting as propriety of adoption process for Lock-Up. Hence legality of asset Lock-Up option require the reasonable purpose & suitability of Lock-Up and the special resolution of general meeting as propriety of adoption process for Lock-Up. Stock Lock-Up Option gives the favored bidder an option to purchase a specified number of treasury or authorized but unissued target shares. The second standard for legality about defensive tactics that is described above is also applicable to Stock Lock-Up Option. Article 418 clause(2) of Korean Commercial Code about restriction of the shareholder’s preemptive right can be related to the reasonable purpose of Lock-Up. Requisite of business purpose in Article 418 clause (2) should include the purpose for defense of corporate control and be functioned as requirement for reasonable purpose of Lock-Up. Consequently legality of Stock Lock-Up Option requires purpose for defense of corporate control as reasonable purpose of Lock-Up, suitability of Lock-Up and propriety of adoption process for Lock-Up. The appropriate guideline for corporate surroundings will be presented to the company faced with M&A. It will give useful information to the company intending to take defensive tactics. The contents of the guideline are like these. First, the rule of improving corporate value & shareholder’s common interests can be suggested as a basic rule in taking defensive tactics. Second, It is desirable to consider standard for legality as shown in Hyundai Elevator Case. Third, pre-adoption & pro-practice style is proposed for defensive tactics.