M&A거래의 가격조정에 따른 리스크 관리와 성과연계인수금액(Earn-out)조항의 법리

Earn-out clauses are contractual obligations that increase the amount paid for a target business if certain agreed upon contractual milestones are met. These can be an effective tool used by parties to facilitate M&A transactions where there is a disagreement between the purchase price requested by the seller and the amount the purchaser is wants to pay. Under an Earn-out arrangement, a portion of the purchase price in connection with the sale of a company is deferred and contingent upon the achievement of certain contractually agreed-upon milestones. Achievement of these milestones post-closing allows sellers to obtain a higher purchase price and allows purchasers to minimize the risk of overpayment for a target business. As merger and acquisition activity continues to increase, Earn-out clauses would be an critical component of the deal. Parties involved in M&A transactions need to draft Earn-out provisions with precision so as to avoid future disputes. Earn-out clauses should be as specific as possible and should include defined formulas that are appropriate for the transaction. Purchasers and sellers need to think strategically in connection with the negotiation and drafting of Earn-out provisions. Parties also need to consider the duration and performance criteria to be used, in connection with an Earn-out. In addition, concrete milestones are essential to ensure success for both parties. Although it seems that Earn-out clauses are often used in practice, the academic and regulatory environment for this issue seems relatively inadequate in Korea. Thus, this article reviews the fundamental theoretical basis, nature, mechanism, and attributes of Earn-out clauses and analyzes recent U.S. case laws in order to explore implications for the Korean M&A market.