기업인수목적회사(SPAC)에 대한 법적 고찰

A Special Purpose Acquisition Company (SPAC) is a blind investment vehicle that allows public investors to invest in private equity type transactions, particularly leveraged buyouts. SPACs are shell or blank-check companies that have no operations but go public with the intention of merging with or acquiring a company with the proceeds of the SPAC’s initial public offering (IPO). On December 21, 2009, Korean Financial Services Commission(FSC) adopted SPACs(hereinafter “Korean SPACs”), which are modified a little bit from American SPACs. Since Korean SPACs were introduced in Korea in December 2009 a half year ago, Korean SPACs are receiving much attention in the Korean capital market with five SPACs already having completed listing and ten more preparing for establishment or waiting for listing permission from KRX. The Korean SPACs are fairly well-designed in terms of investor protection thanks to such protective measures as obligatory trust account, sponsor’s minimum shareholding ratio, KRX’s review procedure during IPO and M&A, restriction of pre-IPO shareholders’ voting rights and appraisal rights in the shareholders’ meeting for the M&A and restriction on pre-IPO shareholders’ disposal of shares. But considering that Korean SPACs are corporations have the nature of an investment vehicle, it is necessary to allow exemptions from regulatory requirements such as prior approval under the Act on the Structural Improvement of the Financial Industry, reporting of company entering a business group and reporting of combination of enterprises under the Monopoly Regulation and Fair Trade Act. Additionally, in order to facilitate a fluid M&A by SPAC, an exemption should be provided from the method of calculating the purchase price of appraisal rights of dissenting shareholders and merger value by reference to the market price. According to the advance notice of amendment to the Enforcement Decree of the Corporate Tax Law of May 4, 2010, the majority shareholder of the M&A target company must hold shares for at least three years to be eligible for tax reduction. This is expected to cause considerable hardship for the SPAC in finding a target company. Therefore we need to shorten the minimum holding period of the majority shareholder. Once the Korean SPACs becomes well established in the Korean capital market, other forms of business combinations should be allowed in addition to the currently allowed merger method, including acquisition of shares, acquisition of assets and acquisition of business. It is also necessary to provide for equitable treatment of pre-IPO shareholders and IPO shareholders by allowing issuance of naked warrants by the Korean SPACs. Having regard to Korean SPAC’s characteristics as an investment vehicle, I would like to encourage the government to adopt a more flexible policy to enable Korean SPACs to become well established in the Korean capital market.