지배주식양도방식의 M&A 거래와 거래보호약정 : 협상과정을 구속하는 계약의 정당화와 그 한계

Abstract

In Korea, sales of controlling shares in corporations are the most common form of M&A transactions. But, mergers and tender offers are very rare although they are very popular in the USA. Furthermore, overwhelming majority of the sales of control block are dealt with in the process of open tenders, and small proportion of the sales done through private negotiations or limited auctions. This article investigates the economic role of deal protection devices that are adopted during the process of negotiations leading to the sales of controlling block. One typical feature in the open tenders for controlling shares is a performance guaranty fee that is stipulated in the Memorandum of Understanding between the potential buyer and seller, and paid by the buyer to the seller upon the designation of the buyer as the exclusive negotiation partner. The guarantee fee can be regarded as a lockup clause and operates to the protection of the seller : The seller who pays for the preparation of the open tender needs some protection for the spending paid for the preparation, and should be able to forfeit the guarantee fee when the buyer fails to perform negotiated terms in the MOU. It is argued here that every deal protection clauses in the MOU including the guarantee fee should be respected because they are the best and freely negotiated terms in a given particular circumstance. If the buyer does not respect the guaranty fee clause, the seller will not hold the open tenders and seek for potential buyers through other method ie. private negotiations. This shift may put much burden of investigation upon the buyer in the private negotiations in which the seller has absolute discretion to arrange the deal. The same reasoning should apply to termination fees that are paid by the seller to the potential buyer in private negotiations. The deal protection devices secured in private negotiations such as the termination fee should also be respected because they are the best and freely negotiated results in a given negotiation table.