M&A계약에서 언아웃(earn-out) 조항의 해석

Corporate values ​​constantly change. As the speed of change in our society increases, the volatility of the future value of companies also increases. Accordingly, the future value of a company varies considerably depending on the evaluator. When the seller and buyer cannot reach an agreement on the share price due to differences in opinion about the future value of the company, the earn-out clause implements a method of adjusting the transaction price that allows the parties to reach an agreement. Despite these advantages, if the release conditions are not satisfied, there is a high possibility that a dispute will arise between the parties over the satisfaction of the conditions. In this article, we will first look at the structure of the earn-out clause, and the problem of causation between the obstruction of fulfillment of conditions and non-fulfillment of conditions, and violation of good faith to which Article 150 of the Civil Code can be applied in relation to non-fulfillment of conditions under Korean law. In addition, if the buyer's obligation to make efforts to achieve the conditions is stipulated in the earn-out clause, I examined whether the legally binding effect can be recognized and, if not, how it can be interpreted. In the United States, a significant number of disputes related to earn-out have already accumulated and are worth reference, so in addition to domestic discussions, we also reviewed Delaware State decisions that could be referred to for each issue in this article. I hope that this article will contribute in some way to negotiating earn-out clauses, implementing them specifically in contracts, and resolving disputes surrounding earn-out clauses.