[발췌] Tender Offer

※ 발췌 (excerpts):

출처 1: 공개매수의 정의와 범위에 관한 고찰 (서완석 지음. 성균관법학 17권 3호, 2005년 12월)

( ... ... ) 미국의 경우, 회사 인수 방법들 중에서 공개 매수의 이용이 증가하면서 투자자 보호의 문제가 대두되자 미 의회는 이에 대한 대응책을 마련하기 위해 1934년 법을 수정한 Williams Act를 통과시켰다. 그러나 동태적인 증권 시장의 특성상 장래 다양한 형태의 거래가 등장할 것을 예상하여 '공개 매수'에 관한 정의 규정을 동 법에 두고 있지 않다.[주]4  따라서 Williams Act[주]5 하에서 이루어지는 대부분의 소소은 '공개 매수'의 개념(meaning)을 둘러싸고 일어나고 있다고 해도 과언이 아닌 것 같다.[주]6  그런데 주요국들 주에서 한국과 일본을 제외하고 공개 매수에 관한 정의 규정을 두고 있는 나라는 거의 없는 것으로 보인다.

[주]5. ( ... ... ) 1934년 법에 다섯 개 규정을 추가시켰고, 이 중 §14(d)와 §14(e) 두 개가 공개 매수를 규율하는 규정이다.
[주]6. Rusty A. Fleming, "A Case of "When" rather than "What:" Tender Offers under the Williams Act and the all holders and best price rules," .... , 2003.

한국 증권거래법은 공개 매수를 "불특정 다수인에 대하여 주식 등의 매수(다른 유가증권과의 교환을 포함한다)의 청약을 하거나 매도(다른 유가증권과의 교완을 포함한다)의 청약을 권유하고 유가증권 시장 및 코스닥 시장 밖에서 당해 주식 등을 매수하는 것"이라고 정의해 놓고 있다(증권거래법 21조 3항). 이는 일본 증권거래법을 본따 만들어진 것이다. 일본의 증권거래법이 공개 매수의 개념을 법정해놓고 있는 있유는 공개 매수의 성립 범위를 명확히 하여 공개 매수를 통한 증권 거래의 법적 안정성을 기하려는 데 있다고 할 수 있을 것이고, 한국 증권거래법의 입법 취지 또한 그러하다 할 것이다.


출처 2: The Developing Meaning of "Tender Offer" under the Securities Exchange Act of 1934 (Harvard Law Review, Vol. 86. No. 7. May 1973. pp. 1250-1281)

Section 14(d) and 14(e) of the Securities Exchange Act (1934 Act) regulate "tender offer," but at no point do they define what a "tender offer" is. As a result the Securities and Exchange Commission, courts, and practitioners have had the task of determining, in a increasing number of instances, whether particular securities transactions are tender offers and thus subject to the rather extensive regulatory requirements of these sections. A number of practitioners have argued that Congress intended to regulate only those transactions conforming to the conventional understanding of tender offer in 1968, when sections 14(d) and 14(e) were enacted as part of the Williams Act.[주]3  But several judicial and SEC staff interpretations have rejected that contention, classifying securities transactions that are clearly inconsistent with the conventional understanding as tender offers within the meaning of the 1934 Act.

This note first considers the conventional understand of a ( ... ... )


출처 3: Negotiated Acquisitions of Companies, Subsidiaries and Divisions (Lou R. Kling 지음. Law Journal Press, 2016)

※ 발췌 (excerpt): Overview of the Acquisition Process

This chapter will provide an overview of the acquisition process. Specifically, we will discuss many of the basic questions relating to the acquisition process. How does an acquisition get done? What are the steps in the process? What are the different ways of structuring a transaction? What does an acquisition agreement look like generally? What are its component part? What are the parties' roles?

Threshold questions, of course, relate to the motivation and economics of any particular transaction. Whay acquire this particular company? What price should be paid? Should the form of consideration be cash, common stock, preferred stock, short or long term debt securities, warrants or anything else? Does the purchase price need to be adjusted post-closing? Should there be an earn-out? These issues are often answered, at least withing certain basic parameters, before the lawyers for either side become involved. However the resolution of these questions can have significant corporate, tax, and structuring implicatins an it is not at all unusual for any number of these basic decisions to be again examined once the lawyers are brought into the process.[주]1  The Authors will not deal with these economic questions,[주]2  except insofar as they affect legal, structuring or tax issues.


Acquisition Methods

If one corporation("P") wishes to acquire the business of another[주]1 ("T"), there are essentially three different methods which could be used:

(1) a stock purchase;
(2) an asset purchase; and
(3) a merger under state law.[주]2

It makes no difference whether T is a subsidiary of another corporation, privately owned by individuals, trusts or other entities, or a public corporation;[주]3 any of the three methods may be used. Similarly, it makes no difference whether the purchase price is payable in cash, common or preferred stock, debentures, notes, bonds, warrants or other properties.[주]4  Moreover, virtually the same contractual representations and warranties, covenants, conditions and indemnities can be built into any of the three methods.[주]5


[1] Stock Purchases

In many respects, the stock purchase is the simplest method of acquisition. P purchases the stock of T from its shareholders. Each shareholder makes its own decision whether or not to sell. The acquisition agreement is a stock purchase agreement between P and the shareholders of T; there may be a different agreement with each shareholder, one agreement signed by all of the T shareholders or anything in between.[주]6  Indeed, a purchaser can acquire less than the entire equity interest in T by not purchasing all of the outstanding T stock.[주]7  T may, but need not, itself be a party to the agreement.[주]8  T will continue in existence as a corporation following the acquisition as a subsidiary of P, wholly owned if all of its stock were acquired. T's shareholders will directly receive the purchase price, be it cash, securities or other property, from P.


[2] Asset Purchases

Instead of acquiring the outstanding stock of T, P could acquire the business conducted by T by purchasing all of T's assets and assuming all of its liabilities and obligations.[주]9  Again, T continues in existence as a corporation. However, the situation is different from the purchase of stock of T discussed above in two important respects. First, T is still owned by its prior shareholder; it has not become a subsidiary of P. Similarly, P now owns, directly, what had formerly been T's assets, and P is now responsible for the liabilities and obligations of T assumed by it.[주]10  T, by contrast, no longer holds what had been its assets or (to the extent P has agreed to take them) its liablities (although, absent third party releases, T generally will remain liable for its obligations, with rights against P if it fails to discharge them). Second, the purchase price has been paid to T, not to the shareholders of T. If these shareholders wish to receie such cash amounts or other property, they will have to liquidate T, have T declare a dividend on its outstanding stock or obtain such consideration in some other manner.


[3] Mergers

Mergers are creatures of state corporate law. Unlike purchases of stock or assets, the ability of two companies to merge is solely a function of a statutory enabling provision.[주]11 

A merger of T into P results, as a matter of statutory definition, in P automatically succeeding to all of T's assets and all of T's liabilities.[주]12  Thus, at the ^corporate^ level, a merger is similar to a sale of all the assets of T to P and assumption of all of T's liabilities by P. The only difference in legal effect[주]13 is that, in the latter case, T remains in existence, still owned by its former shareholders; by contrast, in a merger, again as a result of the applicable corporate statute, T disappears. T simply goes out of existence or, perhaps more accurately, disappears into P.[주]14  From the viewpoint of the shareholders of T, however, the merger operates more like a stock purchase in which they all participate (except to the extent any such shareholder exercises in the merger any available disseters' appraisal rights [주]15). The T stock held by the T shareholders is converted in the merger, again as a result of the operation of the applicable state statute, into the consideration to be paid by P in the transaction. This consideration could under the law of most states be securities, including stock, of P (or of any other entity), cash or other property.[주]16  The two companies merging, often referred to as the "constituent corporations," are both parties to the acquisition agreement. Sometimes (particularly in a three-party subsidiary merger transaction discussed below) the acquiring parent will also be a party to the agreement.[주]17


[4] Three-Party Mergers. ( ... ... )

[5] Binding Share Exchanges. ( ... ... )

[6] Short-Form Mergers. ( ... ... )

[7] Reversing the Structure. ( ... ... )


[8] Some Variations

  [a] Mergers of Equals. ( ... ... ) a number of merger transactin structures are possible:

  (1) P can merge into T,
  (2) T can merge into P;
  (3) P can merge into S, a subsidiary of T;
  (4) S can merge into P, which becomes a subsidiary of T;
  (5) T can merge into Q, a subsidiary of P; and
  (6) Q can merge into T, which becomes a subsidiary of P.

( ... ... )

  [b] Target Repurchase as Part of the Acquisition Structure. On occasion it may be advantageous for the acquisition to be structured as an acquisition of stock (either from an existing shareholder or of newly issued shares directly from the target) by the acquiror, coupled with a repurchase of some or all of its remaining shares outstanding by the target. If the target is public, the repurchase will be accomplished as an issuer tender offer. If fewer than all of the outstanding shares are repurchased, the transaction will leave outstanding some of the shares owned by the former target shareholders. In this case the transaction arguably resembles a recapitalization more closely than an acquisition, although even in this case control can be acquired. ( ... ... )


[9] Acquisition of Less than an Entire Company. ( ... ... )

[10] Acquisition of Partnerships and Limited Partnerships. ( ... ... )

[11] Issues to be Considered in the Different Structures. ( ... ... )


The Purchase Price: Cash v. Non-Cash; Adjustment Mechanisms and the Effect of Seasonality

( ... ... )

* * *

Chapter 16. Acquisitions of Public Companies

16.01 Introduction
16.02 Multistep Transactions
 [1] Basic Transaction
 [2] Stock Purchase and Option Agreements
 [3] Tender Offer
 [4] The Merger

( ... ... )