미국 M&A계약상 주요 거래보호약정의 최근 동향에 관한 연구

The deal protection agreement can be generally described as contractual provisions that have the effect of increasing deal certainty. In the event that the deal is not consummated due to the certain condition under the agreement the target company provides value to the bidder. The purpose of the deal protection agreement is to deter the third-party competing bidder to interrupt the deal with higher bidding or to prevent the deal from being broken up by either party of the contact. The target company also seek to have the deal protection agreement to encourage the initial bidding and to promote the value-enhancing deal. This paper first reviews the general concept of the deal protection agreement, and then analyzes each of the deal protection agreements in detail, which are termination fee, no-shop provision, matching right, board recommendation covenant, force-the-vote provision, collar provision, walkaway provision, asset lockup provision, stock option, voting agreement, confidentiality agreement, and standstill provision. This paper also discusses the standards for the validity of deal protections agreements including the judicial review of Unocal case and Revlon case, and the fiduciary-out provision to avoid the potential breach of the fiduciary duties of the board of the target company in terms of the deal protection agreement. After considering these historical and practical basis for the deal protection agreement, the current trend of deal protection agreement in the U.S. M&A market is identified by evaluating M&A deals for past decades in order to provide the deeper understanding of the deal protection agreement for the balance between encouraging the M&A deal and protecting the interests of shareholders.