해외인수금융의 사례와 법적 쟁점

The strategy for funding a merger and acquisition has become a determining factor in the success of a transaction. Based on notable recent cases of cross-border acquisitions, it appears that funding structures are becoming more complicated. In the case of cross-border acquisitions, the preferred method is for the actual acquirer to (i) establish a special purpose company (“SPC”), (ii) fund contributions in the SPC and (iii) make the SPC the borrower of the acquisition financing. The main reason for this approach is to limit the investment failure risk at the SPC level. The ability to sell the SPC shares as an exit plan is also another major consideration. LBO transactions for cross-border acquisitions take place through an SPC. A majority of the cases require that the target company merge with the SPC after the acquisition. Thereby the merged surviving entity will assume the acquisition debt. There are instances where a structure with 2 SPCs will be adopted due to the ability to raise funds from various investors with differing risk appetites through structural subordination. If we look at cross-border acquisitions by Korean companies in the last couple of years, funding structures with SPCs were used without exception. In addition,the conventional “merger” LBO structure was only adopted in the recent Acushnet acquisition financing and such structure has been modified to accommodate the needs and characteristics of each transaction. In a cross-border acquisition transaction, the governing law and jurisdiction (venue) needs to be considered carefully taking into account the recognition and enforcement of foreign judgments in each relevant jurisdiction. In addition, if there are any guarantees or security granted by the target company, a review must be undertaken to determine whether there are any financial assistance or other prohibitions and if so, any methods for overcoming such prohibitions (e.g. whitewash procedures). It is also necessary to consider in each jurisdiction whether a security trust can be formed over the security in favor of the syndicate of lenders. As funds will be remitted across borders, issues such as withholding tax (or exemptions under double tax treaties) or exchange control provisions relating to the payment of foreign currency, provision of guarantee or security needs to also be checked with care.