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경영권 이전에 관한 몇 가지 쟁점: 공개매수에 관한 EU의 제13지침과 그 시사점 : EU`s 13th Directive on Takeover Bids and Its Implications
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- Authors
- Issue Date
- 2007
- Publisher
- 서울대학교 법학연구소
- Citation
- 법학, Vol.48 No.4, pp. 260-313
- Keywords
- 공개매수 지침 ; 의무공개매수 ; 다수의결권 등 제한원칙 ; 1주 1의결권 원칙 ; reciprocity in M&A ; breakthrough rule ; one-share-one-vote ; Takeover Directive ; 상호주의 ; Mandatory Bid
- 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 shareholders,
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.
- ISSN
- 1598-222X
- Language
- Korean
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