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- 저자 : 강택신 ( Teck Shin Kang ) (검색결과 1 건)
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강택신 ( Teck Shin Kang ) 연세대학교 법학연구원 글로벌비즈니스와 법센터 2011 연세 글로벌 비즈니스 법학연구 Vol.3 No.1
The so-called poison pill is one of the defensive tactics that makes hostile takeover by a corporate raider prohibitively expensive or nattractive. A poison pill generally is drafted to grant directors discretion to redeem the rights by purchasing stocks at a nominal price until a person or group becomes the beneficial owner of a specified percentage of the corporation`s shares. This poison pill is evaluated as a defensive tactic that is highly economical and effective compared to golden parachutes and the restriction of director qualifications, other tactics currently used in Korea. On the other hand, detractors claim that the introduction of poison pills in Korea would be premature, as they are highly likely to be abused by directors and controlling shareholders, given Korea`s situation of poor corporate governance. On December 1st 2009, the Ministry of Justice announced the draft of the amendment to the Commercial Act to grantee fair competition of defense and attack for M&A, and to force business money used for defense against M&A to be concentrated on productive investment. This draft was submitted to the National Assembly on March 10th 2010 as a government bill, which is intended to establish a new right to introduce the poison pill as a defensive tactic against hostile M&A`s. This draft adopts a new right only for a defensive tactic, and includes several strategies to increase the rationality of defensive tactics and to ensure that the poison pill is not abused. For example, under the draft a poison pill must be adopted by all shareholders by revising the company articles, thus requiring a special resolution at a general shareholders meeting, and can be exercised by shareholders except for the unwanted acquirers or redeemed by the company only under conditions sufficient to maintain or enhance the corporate value and general shareholders` common interests. This point makes the Korean-styled poison pill different from the U.S.-styled poison pill, which adopts ``warrant`` as a tactic for raising funds, and the Japanese-styled poison pill, which may be used only by the directors. Despite these strong points, there are several aspects of the draft that require improvement. First, ``corporate value and general shareholders`` common interests` in the draft is too ambiguous, and the description of whether the right can be used and under what triggering event is too ambiguous also. So this should be articulated. Secondly, there is the possibility of the interests of general shareholders other than the raiders being damaged in the process of the right`s ``exercise and redemption`` under the draft. Accordingly, the question of who the holders of the right are should be clarified. Thirdly, a sunset should be adopted, for regular screening to prevent abuse by the company during the introduction of this poison pill. Finally, it should be regulated that listed companies can use the right reasonably and properly by revising the current takeover bid under the Financial Investment Services and Capital Markets Act, provisions of listing stocks to Korea Exchange and the listing regulations of the stock exchange.
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