反행동주의 포이즌 필(anti-activist poison pills)에 관한 연구

These days, activism is at all-time high around the world, especially in the United States. Tactics that are used by activists to make the campaign succeed have been evolving, and there is a concern that activists tend to induce managers to pursue short-term financial goals at the expense of building long-term value. So anti-activist poison pills came up to defend against activism. This article analyzes anti-activist poison pills that were developed in the US, and tries to find its implications for Korea. Many investors take the long position through ‘total return swap’(“TRS”). Because TRS allows an investor to create the economic equivalent of ownership of an equity security, but TRS does not confer beneficial ownership of the underlying equity security to the long party, the long position is not required to be disclosed under the Securities Exchange Act and would not trigger traditional poison pills. Many investors use the strategy of the ‘wolf pack’. The members of the wolf pack can cooperate without disclosing under the Securities Exchange Act or causing aggregation under traditional poison pills. A two-tier pill was developed to ensure managers to respond to activists properly in the US. A two-tier pill sets the different trigger threshold according to the nature of shareholders, thus it provides for a 10 percent trigger threshold for shareholders filing a Schedule 13D(available to activist investors) and a 20 percent trigger threshold for shareholders filing a Schedule 13G(available to passive investors). Activists can accumulate stock under the radar through swaps or other derivative instruments without acquiring stock in its own name. To prevent activists from sneaking past the threshold through the use of derivative positions, boards of directors of public corporations altered the traditional definition of beneficial ownership in poison pills to include derivative securities in the calculation of the beneficial ownership threshold that triggers poison pills. There have been several recent examples of activists engaging in wolf pack activity that stops short of meeting the group definition for purposes of triggering poison pills or disclosure requirements. In response to this, boards included language that applied the pill threshold more broadly to ‘shareholders acting in concert’. It would be necessary to differentiate between poison pills and anti-activist poison pills in our country. In Korea, it has been said that there was the need to adopt poison pills to fend off hostile takeover, but recently there are more needs to adopt poison pills for the use of anti-activist poison pills against activists due to their vivid activities and new tactics. In the end, the need to adopt poison pills for the use of anti-activist poison pills must be considered in the debate over whether poison pills should be adopted. And there is the need to be cautious about designing anti-activist poison pills to make it meet the standard for judicial review.