기업인수계약상 “중대한 악영향”조항에 관한 실무연구

MAE/MAC is one of the most important representations and warranties, covenants and conditions precedent for closing in an acquisition agreement. A clear idea about the significance of MAE/MAC and its coverage would help the legal team to draft and negotiate definitive transaction documents. While no Korean judicial interpretations or academic discussions have been found, US courts recently rendered interesting decisions about the meaning of MAE/MAC in Tyson Foods case and Holly case. In both cases, the court rejected the buyer’s argument based on the MAE/MAC language. It is true that the MAE/MAC should be extremely carefully applied to limited situations. However, as MAE will deter the seller’s moral hazard as well as help the buyer to map the future events acceptable for the closing, it should not be analogized with force majeure, impossibility, frustration or change of socio-economic situations theories that allow the court to override the contractual wordings. Rather, the court should be respective of the drafting and negotiation history of the seller and buyer involving the MAE/MAC clause.