해외 민자발전프로젝트의 지분 인수를 둘러싼 법률적⋅실무적 쟁점－실사, 주식인수계약 및 주주간협약을 중심으로－

The power market has been drastically changed for the last few years due to various factors including drops in commodity prices and liberalization or restructuring of power markets in many countries. To utilize such a market situation, Korean investors are also considering diversifying and expanding their business in the power sector outside Korea, mainly through acquisition of minority shares in independent power projects (“IPPs”). This article surveys various activities required in acquisition of shares in IPPs focusing on due diligence, share purchase agreements and shareholders agreement, and key issues that minority shareholders should consider before approaching and discussing a proposed acquisition with a seller. Due diligence requires review of vast amount of information including various regulations on the power sector in the relevant jurisdiction. Therefore, it is important for a purchaser to understand what information to be reviewed during due diligence and to be reflected in the share purchase agreement through conditions precedent, representations and warranties, covenants and indemnification clauses. The shareholders agreement reflects dynamics among the shareholders and sets up a mechanism to regulate their rights and obligations including restrictions on related party transactions and transfer of shares, decision-making procedure and dispute resolution. Acquisitions of shares in IPPs have become more complicated due to the number of parties, cultures and jurisdictions engaged in a transaction and complicated and innovative deal structures. Therefore, understanding issues discussed above and differences between cultures and legal systems in the relevant jurisdictions is the key to success in acquisition and operation of an IPP.