미국상장사의 인수에 대한 법률적 고찰

This article provides a general overview of legal considerations under U.S. federal securities laws and state corporate laws that would be of interest to a foreign acquiror seeking to acquire a U.S. listed company. Public mergers & acquisitions (“M&A”) transactions under U.S. laws differ significantly from private M&A transactions. In terms of the basic legal framework,in a public M&A transaction, U.S. federal securities laws generally govern matters such as disclosures required to be made to the target company’s shareholders,tender offers and proxy solicitations, while the applicable state law governs matters such as the rights and duties of the target company’s shareholders and board of directors in connection with the M&A transaction and the form of and procedural requirements for the merger. For the purposes of the article, discussions on state law focus on Delaware law. The article examines various types of public M&A transactions, such as (i)friendly (i.e., negotiated) versus hostile M&A transactions, (ii) different transaction forms (e.g., forward / reverse / subsidiary mergers), (iii) transactions using cash or stock consideration and (iv) one-step versus two-step mergers. In addition, the article discusses various defensive mechanisms which may apply to a U.S. listed company target under applicable state anti-takeover statutes,“poison pill” plans which may have been adopted by the target or other defensive measures (such as staggered board or supermajority approval requirements) that the target may have adopted in its charter documents. Next, the article discusses select procedural and substantive considerations which would be significant for the acquirer during negotiations with the target’s board of directors in a friendly deal, including a discussion on points to be considered at the stage of initial contact with the target and negotiation of preliminary agreements (e.g., confidentiality, standstill and exclusivity agreements). Greater focus is given to various deal protection provisions which are typically negotiated and included in the definitive merger agreement, including discussions on the legal background and significance of various such provisions and key negotiation points under Delaware law and recent market practice. Finally, the article summarizes the typical closing process for a public M&A transaction under U.S. laws following the execution of the definitive merger agreement,with a particular focus on the difference between a transaction structured as a one-step merger versus a two-step merger.