주주간계약에 따른 공동보유의 성립에 관한 연구

In the course of an acquisition, the acquirer and the largest shareholder of the target company basically enter into a share purchase agreement and most often a shareholdersʼ agreement. Share purchase agreement relates to the acquisition or disposal of shares and may trigger the obligation to report on large holdings of shares, and shareholdersʼ agreement may result in the establishment of acting in concert between the parties based on the contents of the agreement, so it is necessary to accurately interpret the contents of the agreement, determine whether acting in concerts have been established, and comply with the obligation to report on large holdings of shares. The acting in concert is a person who, pursuant to an agreement or contract, agrees to perform any of the following acts: 1. Jointly acquiring or disposing of stocks, etc.; 2. Trading stocks, etc. among each other after jointly or solely acquiring such stocks, etc.; 3. Jointly exercising voting rights(including the power to instruct to exercise voting rights)[Article 141(2) of the Enforcement Decree of the Capital Market Act]. In this case, the ʻagreement or contractʼ does not necessarily have to be in writing, such as a contract, and an oral agreement is sufficient. Shareholdersʼ agreement is entered into among the shareholders of a company regarding the acquisition or disposal of shares, the governance and operation of the company, and the exercise of voting rights. The structure and content of the agreement may vary depending on the number of shareholders, each shareholderʼs investment objectives, and the shareholding structure of the company, but typically includes provisions restricting the transfer of shares(right of first refusal/right of first offer, put option/call option, tag-along right/drag-along right), restricting the exercise of voting rights (appointment of directors), or agreeing on management matters(consent right). To summarize whether or not acting in concert can be established under each provision, the following is a summary. ① The right of first refusal is divided into cases where the buyer accepts the offer and cases where the buyer rejects the offer, but in the case of acceptance, in order for acting in concert to be established, the shares must be jointly or solely acquired and then mutually transferred or assigned to ʻthe acquired sharesʼ; however, ʻthe acquired sharesʼ do not meet the requirements because they are already held by the acquirer, and in the case of rejection, the seller can transfer the shares to a third party, so neither party can establish acting in concert. ② The party with the put option cannot be a acting in concert because it does not fall under any of the rules of possession similar to ownership, and the party with the call option is a holder, but it does not meet the requirements because it does not target the ʻacquired sharesʼ after acquiring shares jointly or separately by agreement between the parties, but rather the existing shares held by the other party(the largest shareholder) at the time of signing the shareholdersʼ agreement, so acting in concert is not established. ③ The tag-along right and The drag-along right are exercised by the parties to jointly dispose of their own and the other partyʼs shares, so acting in concert is established. ④ In the case of the election of directors under a voting rights binding agreement, it is clear that acting in concert is established because each party jointly exercises its voting rights at the shareholdersʼ meeting. ⑤ The consent right is only a consent to the management of one shareholder and does not directly exercise the voting rights of the other shareholder, and to be considered a joint exercise of voting rights, it must be enforceable enough to limit the voting rights of both parties to the shareholdersʼ agreement for the purpose of a specific resolution, such as the election of directors, but the right of informed consent does not constitute a joint exercise of voting rights because the other shareholder is free to refuse to consent if there is a reasonable reason, so acting in concert does not exist. The existence of acting in concert is subject to arbitrary interpretation and should be left to the judgment of the financial authorities or the courts when the issue arises. The financial authorities consider it necessary to publish guidelines for determining the existence of acting in concert in relation to various provisions of the shareholdersʼ agreement. By indicating the existence of acting in concert, this will encourage more accurate disclosure of the percentage of shares held by related parties in the issuer. In addition, we believe that it will eventually enhance the transparency of the securities market and utilize the operation of report on stocks held in bulk for the purpose of securing fairness in the competition for corporate control.