敵對的 企業買受·合倂(M&A)에 관한 硏究 = (A) Study on the hostile Merger and Acquisition

다국어 초록 (Multilingual Abstract)

Enterprises are deploying business tactics for growth by corresponding to the changes of the management environment. M&A is one of the management tactics for the enterprises to seek growth by recruiting outside resources, the Merger and Acquisition of the enterprises. As methods of M&A there are Mergers, corporate take-overs, stock acquisitions, Solicitations Proxy, and TOB(Take-over bid). These motives that causes M&A have such advantages as the extension of business scope, the saving of time, the efficiency of cost, and the easiness of securing manpower.
In our country the hostile M&A in its actual meaning has not yet been activated by the growth-centered government policy which have protected the managers excessively. It is expected the hostile M&A against certain enterprises would be prevalent because Security Exchange Act the 200th will be abrogated in 1997. In the past there were no ways for the hostile M&A except direct business deals with great stockholders such as Solicitations Proxy, TOB, etc. But now the hostile corporate takeovers can be possible because of the abrogation of the system of limiting the possession of stocks. Especially the possibility of their success will be high if a large number of stocks can be secured before Solicitations Proxy and TOB are to be carried out. And in case that various defensive methods against hostile M&A can be secured hereafter, the all the three methods mentioned above will be utilized at the same time. In our country the regulations related to M&A are somewhat insufficient for the protection of investors compared to those of America, so that the legislative complement of it is necessary.
The purpose of this study is to suggest objective and steadfast laws to defend target corporations and bidders as well as shareholders and investor against Solicitations Proxy of the Securities Exchange Law and TOB impartially. The contents of this study are as follows.
Chapter 1 describes the purpose and the scope of the study.
Chapter 2 considers the general definition of M&A to help make the regulations, defense processes and methods of M&A understood. namely, this chapter considers control of a company which is the most important in M&A and the patterns of hostile M&A introductorily, and the motive, effect and process of development of M&A as well.
Chapter 3 attempts to find the solutions to get over the obstacles and problems of Solicitations Proxy by analysing the obstacles and problems of it after surveying the systems of hostile M&A by Proxy Contest and by surveying the American regulations of the letter of attorney which provide almost perfect legal regulations.
Chapter 4 discusses TOB system which is currently used most widely in America and in Korea and its harms and the necessity of its regulations. To induce these problems, American tender offer regulation which is the prototype of Korean TOB, Williams Act which is one of the Federal laws and State anti-takeover statutes are considered by turns. And then the related laws of America, England and France, The proposal for a Thirteenth Council Directive on EC company law are comparatively considered to show the problems of TOB system of the Securities Exchange Law and induce an appropriate bill of legislation.
Chapter 5 considers Business Judgment Rule as a standard of judgment for the defensive tactics utilized by the managers of the target companies. Also the defensive tactics against the hostile M&A are considered centering around related cases, upon which possible methods applicable to our country are suggested. The suggested methods are as follows: 1. Shark Repellent Amendment which make the bidders difficult to bid by enacting a special provision before the occurrence of M&A, 2. Poison Pill which makes stockholders purchase stocks additionally in low price in case that the undertaking of hostile purchase happens by allotting preferred stocks to stockholders who have the right of recourse, the right of conversion and so on, 3. Defensive Stock Repurchase which makes the possibility of failure of bidding high, by increasing the rate of stocks held by managers and White knights and to make bidders raise the price of bid or give up bid itself by raising the price of targets above TOB price, 4. the third Lock-ups which induct White knights into bid competition by making Target Company managers give relatively remunerative terms to White knights rather than to bidders, 5. the use of ESOP in which a company makes employees organize a union for 'stock sharing' and let the union purchase the stocks of its own company, and then the company accepts the union as a stable stockholding organization.
Chapter 6 is the conclusion of this study and suggests the ways to solve in the light of the legislative the problems dealt with in chapter 3, 4, and 5, viewpoint.

목차 (Table of Contents)

• ABSTRACT = ⅰ
• 목차 = ⅴ
• 第1章 序論 = 1
• 第1節 硏究의 目的 = 1
• 第2節 硏究의 範圍와 方法 = 4
• 第2章 敵對的 M&A의 유형 = 6
• 第1節 M&A의 개관 = 6
• 1. 企業의 支配權賣買 = 6
• 2. M&A의 類型 = 11
• 第2節 M&A의 원인 = 19
• 1. 對象會社의 資産이 낮게 평가되는 경우 (Assets at a Discount) = 19
• 2. 할인된 價格에서의 수익 (Earning at a Discount) = 21
• 3. 상업적 이익과 공동 상승효과 (Trade advantage or synergy) = 22
• 4. 市場進入의 手段 (Method of Market Entry) = 24
• 5. 持株會社의 資本增加 (Increasing the Capital of Holding Co.) = 24
• 6. 經營動機 (Management Motives) = 25
• 7. 少數株主가 保有한 株式의 取得 (Acquiring Minority-held Shares) = 26
• 第3節 敵對的 M&A의 효용 = 27
• 1. M&A의 順機能 = 27
• 2. M&A의 逆機能 = 29
• 第4節 M&A의 발전과정 = 34
• 1. 水平的 合倂 시대 = 35
• 2. 垂直的 合倂 시대 = 35
• 3. 複合的 企業合倂 시대 = 36
• 4. 構造 再編成 시대 = 38
• 第3章 委任狀 勸誘에 의한 敵對的 M&A = 40
• 第1節 序說 = 40
• 1. 株主總會의 形骸化와 그 對策 = 40
• 2. 법률구성 = 43
• 第2節 미국의 委任狀 勸誘規制 = 46
• 1. 規制의 구조 = 47
• 2. 適用對象 및 定義 = 50
• 3. 委任狀證明書 및 委任狀書式 = 53
• 4. 委任狀勸誘爭奪戰 및 株主提案 = 57
• 5. 허위 또는 오해를 일으키는 설명 = 60
• 6. 證券會社名義에 의한 證券 所持 = 61
• 7. 委任狀이 勸誘되지 않는 경우의 「情報說明書」 = 65
• 第3節 우리나라의 委任狀 勸誘規制 = 66
• 1. 委任狀制度 = 67
• 2. 適用範圍 및 定義 = 68
• 3. 委任狀書式 및 委任狀 參考書類 = 70
• 4. 委任狀 勸誘의 평등성확보 및 株主提案 = 72
• 5. 虛僞·誤解를 일으키는 설명의 금지와 구제방안 = 75
• 6. 書面投票制度의 도입 = 77
• 第4章 公開買受에 의한 敵對的 M&A = 78
• 第1節 序說 = 78
• 第2節 미국의 公開買受規制 = 79
• 1. 聯邦 證券去來法相의 公開買受 規制 = 81
• 2. 州法相의 公開買受規制 = 87
• 第3節 英國의 公開買受 規制 = 98
• 1. 1985년 會社法과 公開買受 = 99
• 2. 1958년 詐欺防止(投資)법과 公開買受 = 100
• 3. 企業買受·合倂에 관한 City Code = 101
• 第4節 우리나라의 公開買受 規制 = 106
• 1. 規定의 適用範圍 = 107
• 2. 公開買受의 申告 = 108
• 3. 公示規定 = 110
• 4. 公開買受의 條件 및 方法 = 113
• 第5章 適對的 M&A에 대한 대항수단 = 120
• 第1節 經營判斷의 원칙 = 120
• 1. 미국의 판례법에 있어서 經營判斷의 원칙 = 121
• 2. 美國法律協會의 試案 第11에 있어서 經營判斷의 원칙 = 137
• 第2節 適對的 M&A에 대한 대항수단 = 139
• 1. 정관의 변경 (Shark Repellent) = 139
• 2. 株式의 안정정책 = 145
• 3. MBO에 의한 非公開로의 전환 (Going private) = 153
• 4. 제3자에 대한 先買權 附與 (LOCK-UP협정) = 155
• 5. 逆公開買受 (Counter tender offer ; Pac-Man) = 157
• 第3節 우리나라에서의 對抗手段 = 159
• 1. 理事의 任期終了 時期의 분산 = 159
• 2. 優先株 및 轉換社債등을 이용한 방어 = 161
• 3. 自己株式取得 = 164
• 4. 第3者配當 增資 = 167
• 5. 從業員持株制度 = 169
• 第6章 結論 = 172
• 參考文獻 = 177