企業引受契約상 去來保護條項의 有效性 - 미국 판례의 태도와 시사점을 중심으로 -

The deal protection clauses are referred to as a series of inserted clauses, like covenants concerning no-shop, lock-up, and break-up fees, to protect the original corporate mergers and acquisitions agreement from the third party’s bidding contest. Recently validity of the deal protection clauses have been increasingly disputed and judicial general standards for testing the validity have been formulated especially in Delaware courts. The standards are classified as two approaches in the perspectives of contract law and corporate law. In determining validity of the deal protection clauses, the doctrine of liquidated damages and unconscionability has been applied under the contract law, and business judgement rule, entire fairness test, Unocal and Revlon test, shareholder coercion standard and bidder preclusion standard have been done under the corporate law. Each standard depends on the facts and circumstances in the M&A agreement. In this paper the facts and courts decision of some leading cases are introduced somewhat in detail, which might be useful to negotiating the M&A agreement practices and to understanding the legal theories on the individual deal protection clause. And the general standards are based on the most of the precedents including the leading cases. In conclusion, although the American standards are not completely consistent with the interpretation of Korean law, some of which might be implicative. Most important thing is that deal protection clauses can not disregard the director’s fiduciary duty to the company, which is composed of duty of care and duty of loyalty under corporate law, because the clauses have only contractual binding forces to the contracting parties not corporate board of directors. Moreover public policies and the invalidating doctrine of excessively unfair contract as a general normative ruling under the private law are able to be applied to the clauses. Especially it is very impressive that traditional Unocal and Revlon test applied to the context of defending hostile M&A are already used for determining the validity of the deal protection devices.