경영권 이전에 관한 몇 가지 쟁점: 공개매수에 관한 EU의 제13지침과 그 시사점 = EU`s 13th Directive on Takeover Bids and Its Implications

다국어 초록 (Multilingual Abstract)

In April 21, 2004, after 20-year-long negotiations and debates, the Council of the European Union passed the 13th Directive on Takeover Bid (the “Directive”). Aiming to encourage corporate restructuring and takeover activities, the Directive adopted several controversial devices associated with takeover bid: mandatory bid; board neutrality; breakthrough rule (“BTR”); optionality right of Member State; reciprocity. This paper analyses the effects of three major provisions of the Directive. First of all, the mandatory bid rule requires acquirer to offer minority shareholders of the target company the same price as has been offered to controlling share-holders, thereby protecting minorities. This rule has two-fold chilling effect: it would effectively prevent value-decreasing acquisition, discouraging incompetent purchaser from buying the target; it might also prevent value-increasing acquisition, imposing additional burden even on competent purchaser. Secondly, the BTR allows the offeror to ``break through`` any restrictions on voting and/or transfer over target shares, provided that she successfully obtains 75% cash-flow rights in the tender offer. BTR is expected to reduce the agency cost from separation of cash-flow rights and voting rights. In terms of hostile takeover activities, BTR has opposite effect to mandatory bid rule: BTR is supposed to boost hostile takeover, while mandatory bid rule has chilling effect. This paper shows how these two contradicting aspects would work in the future. According to the economic analysis, the BTR might erode the protection for minorities by mandatory bid rule. Thirdly, the Directive gives Member State the option not to adopt BTR and/or board neutrality rule. While the optionality provision, reflecting the compromise between pro-hostile takeover Member States and anti-takeover Members States, gives each State flexibility, it might threaten the integrity of the new Directive. The Directive and the legislative history can give some insights to Korea that is under corporate law reform. While it seems not desirable to directly introduce those new devices in the Directive, the ideas behind the Directive, including one-share-one-vote theorem and level playing field concept for M&A, should be considered when we revise current Korean Commercial Code.