The purpose of this thesis is to introduce the appropriate defensive tactics against management threat of the foreign speculative capital.
Because it is impossible to regulate only the foreign speculative capital, the introduction of the appropriate defensive tactics is more necessary than the direct regulation of the hostile M&A, considering the affirmative side of the hostile M&A activations.
With the rapid inflow of foreign capital since the financial crisis in 1997, the ratio of the foreign stockholders in the stock market exceeds 40 percent, which has brought a new aspect of traditional domestic M&A. Moreover, with current increase in foreign investment compared to domestic investment, maintaining the old views on M&A to the present situation would likely to cause problems in terms of national competitive power.
In other words, the problem is whether we should have a positive or negative view on the foreign capital attempting to engage in hostile M&A with domestic businesses. But currently in our capital market, there is less investment capital which is direct investment while the venture capital is in a rapid increase. Therefore, in a long term, it is expected to have a negative effect on our capital market as well as on the national economy. Hence, there must be a appropriate diversionary provision for foreign venture capital.
Plus, considering that there’s some proper function of foreign capital, the systematic provision should abolish the reverse discriminatory regulations on domestic businesses rather than its discriminatory regulation.
That way, the foreign capital and domestic capital would bring complementary interaction as balanced competitors.
Through the comparative investigation of important countries, I can know that the introduction of the appropriate defensive tactic is more necessary than the introduction of various defensive tactics, considering various defensive tactics which is restricted by American company culture. And the necessity of hostile M&A activation is known by EU Directive on the takeover bids. And the importance of guideline against defense misappropriation is known by Japanese standard about defense misappropriation.
Through investigation of the laws which relate with hostile M&A, I can know that the problem of reverse discrimination will happen.
From investigation of the laws which relate with hostile M&A of our country, investment sum total system and the voting restriction of the financial corporate in Fair Trade Law are not applied to the foreign capital.
M&A related laws which don't discriminate a domestic capital and foreign capital basic principle. But the law about national key industry must discriminate a domestic capital and foreign capital. And it will be known by the example of Exon-Florio Amendment.
Though the defensive tactics against hostile M&A will be introduces, defense misappropriation standard is necessary.
In order to investigate the application of third person assignment of new stock and acquisition of treasury stock, we need the clear principle about legality award criterion.
The principle and exception of Primary Purpose Test of Japan is comparatively a rational opinion to solve the problem of legality award criterion.
It is necessary that the court recognizes widely rational reason about Primary Purpose Test. So defensive tactics of director must be widely recognized by Primary Purpose test of Japan. And by the exception of Primary Purpose Test, defensive tactics of director for management maintenance purpose will be restrictedly recognized.
This leads the recognition of defensive tactics which use the third person agglomerate of new stock and acquisition of treasury stock.
Some of the things discussed for the defense action for the rights of management are introduction of various defensive measures, defense action through stock system reform. and management defense system reform related to Antitrust Law.
For example, it would be possible to introduce a trustee’s staggered board through the change in memorandum of association, and to strengthen the super-majority requisite for the general meeting of stockholders. In the case of an increase of capital, assigning new shares to the board and employees or putting a limit on transfer of stocks as well as insuring the preemption, and guaranteeing the voting rights applying convertible bond and bond with warrant would be the method of defense for the rights of management.
Other than this, we should also carefully consider the application of Dual Class Plan which is not easy to be accepted under the existing law.
Since the graded voting rights system has the advantage of resolving the insecurity of rights of management and inducing the sound stock investment, it would be possible to have the businesses decide whether to apply the system after complementing the securities related system.
Along with the Dual Class Plan, we can consider, the application of the Poison Pill. Its application was impossible due to the prohibition of any act that could bring a change in the number of shares with voting rights during the period of takeover bid.
However this year, the Security Exchange Law has allowed the issue of stocks during the period of takeover bid, and businesses are likely to issue stocks in order to defend the rights of management during this time as well.
According to the present law, a fundamental rule of the stock issue is to satisfy the need for supply of capital for the business while banning the stock issue with the purpose of controlling the stockholders or defending the rights of management as an unfair stock issue. But sometimes, it is necessary to allow the setting of the regulation by stockholder’s judgement through legal examination on its application.
In order to resolve the conflict of interests among the controlling stockholders within the business and other stockholders, the efforts need to be made to introduce fiduciary duty for the businesses of controlling stockholders and the trustees as well as for the stockholders under the commercial law and rationally revise the Security Exchange Law having the positive analysis on the internal controlling system of a business such the controlling formation as its basis.
Also, the legal measures continuously eliminating the legal elements which hinders the revitalization of M&A should be followed in order for the external controlling system to function effectively.
In relation to Antitrust Law, there are regulations on the M&A for the businesses in terms of restricting the restraint of economic concentration and business union in Korea, setting the stock ownership restriction provision and public provision on overall investment restriction business group, mutual investment restriction business group, and financial affiliates.
Since many people see these restriction of Antitrust Law as an obstacles to management defense action in the case of a business held under the hostile M&A, proper examination and complementary measures on the existence of the system is necessary.
Along with these problems of introducing the management defense action, the morality of the board of directors who actually decide the management defense action need to be examined.
The decision either to be taken over through a friendly negotiation with the intention of the accepting business or to go through the hostile M&A is entirely made by the board of directors of the business. However, in the case the board of directors refuse to be taken over and also fight against the hostile M&A, if the decision of the board of directors is not in the best interest of the business or the stockholders, the board of directors is in danger of being accused by the stockholders.
In other words, although the existing board of directors and the controlling stockholders manage the rights of management defense, if the board of directors defend the rights of management by bringing loss to the stockholders and business associates cannot be justified. Having these problems, the careful discussion on whether the selected defense action is to benefit the business and stockholders or to benefit the board of directors themselves should be progressed.
The defence action for the rights of management have its side effects as well as the advantages. But rather than to restrict the defense action for the rights of management as the enemy, it is important to take the developed countries' utilizing the businesses into the account and allow the policy applying its positive aspect. Plus, the business should promote the visibility on the ownership and controlling structure and restrict the voting rights with caution in order to smoothly apply the possible introduction of defense system for the rights of management.