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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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서울대학교 법학연구소
법학, Vol.48 No.4, pp. 260-313
공개매수 지침의무공개매수다수의결권 등 제한원칙1주 1의결권 원칙reciprocity in M&Abreakthrough ruleone-share-one-voteTakeover Directive상호주의Mandatory Bid
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;


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.
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