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초록· 키워드
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For a stock corporation to maintain and expand its business on a continued basis, it is of utmost importance to secure stable sources of capital. But, access to the equity capital market is significantly limited in Korea due in part to the Commercial Code of Korea which basically prohibits stocks with different rights, firmly based one the principle of shareholder equality. As a result, unlike in the United States or the United Kingdom, corporations in Korea are subject to a wide variety of limitations in raising capital, refining business or capital structure and defenses against hostile M&A as they are unable to diversity rights attached to their shares depending upon specific management purposes or particular market conditions. As such, it is essential that the Commercial Code of Korea introduce wider variety of shares already widely available in advanced markets of the world that effectively accommodate changes in the business environment, developments in the capital market and defenses against hostile M&A.
As new means of capital fund, it is required to introduce tracking stock that profit dividend varies depending on the performance of the company or business sectors, and stock purchase warrant that offers a certain quantity of stock acquirement from the issuing company within limited period (promotion period) in a certain price (promotion price). The former does not impose the priority in profit dividend, therefore it differs from the existing preferred share but corresponds to common share as the new type of class share with different profit dividend. The latter is a right similar to bond with warrant or employee's stock option, in which the treasury share can be distributed instead of new stock issuance and the shareholder or even the 3rd party as well as executives can acquire the stock issued.
In order to extend the defensive mechanism against hostile M&A, it is required to introduce limited disparate voting right, expand voting right class stock, introduce compulsory convertible share and to release limitation on acquiring treasury stock. Although the multiple voting right cannot be fully accepted, it is justifiable to allow disparate voting right to impose multiple voting right in proportion to the ownership period, provided that the voting caps are established. Further, in order to utilize the merit of non-voting share, it is necessary to permit various stock types with different voting right, and thus to partially non-introduce non-voting common share and non-voting share that pertains no voting right but on certain resolutions. Compulsory convertible share can be introduced by imposing the convertible right of the existing convertible share not only to the shareholders but to the company as well. In addition, it is required to permit acquirement of treasury stock as a general rule with only acquirement sources regulated in order to integrate the regulation of commercial and securities & exchange law on treasury stock acquirement.
As new means of capital fund, it is required to introduce tracking stock that profit dividend varies depending on the performance of the company or business sectors, and stock purchase warrant that offers a certain quantity of stock acquirement from the issuing company within limited period (promotion period) in a certain price (promotion price). The former does not impose the priority in profit dividend, therefore it differs from the existing preferred share but corresponds to common share as the new type of class share with different profit dividend. The latter is a right similar to bond with warrant or employee's stock option, in which the treasury share can be distributed instead of new stock issuance and the shareholder or even the 3rd party as well as executives can acquire the stock issued.
In order to extend the defensive mechanism against hostile M&A, it is required to introduce limited disparate voting right, expand voting right class stock, introduce compulsory convertible share and to release limitation on acquiring treasury stock. Although the multiple voting right cannot be fully accepted, it is justifiable to allow disparate voting right to impose multiple voting right in proportion to the ownership period, provided that the voting caps are established. Further, in order to utilize the merit of non-voting share, it is necessary to permit various stock types with different voting right, and thus to partially non-introduce non-voting common share and non-voting share that pertains no voting right but on certain resolutions. Compulsory convertible share can be introduced by imposing the convertible right of the existing convertible share not only to the shareholders but to the company as well. In addition, it is required to permit acquirement of treasury stock as a general rule with only acquirement sources regulated in order to integrate the regulation of commercial and securities & exchange law on treasury stock acquirement.
목차
Ⅰ. 序 說
Ⅱ. 商法上 株式制度의 現況 및 問題點
Ⅲ. 資本調達手段의 擴大
Ⅳ. 敵對的 M&A 防禦手段의 擴大
Ⅴ. 結 語
참고문헌
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UCI(KEPA) : I410-ECN-0101-2009-366-018058673