By Don Southerton, KoreaLegal.org Editor
This has been a week of suits and counter lawsuits. Samsung and Apple are battling, so are Lone Star and Hana Bank. The Apple-Samsung issue are IP related, so nothing new there.
Regarding the latest chapter in the Lone Star–KEB–Hana saga…
Korea Times notes:
A legal dispute is looming between Hana Financial and Lone Star due to a delay in the government’s approval of their deal over Korea Exchange Bank (KEB).
A source close to Lone Star told The Korea Times, “It’s in the contract. A delay means compensation. If it comes to litigation, so be it.”
Hana is also equally adamant, saying that it is Lone Star’s fault so there is no need for it to pay.
At issue is a clause in the contact in which Hana will pay 4.7 trillion for Lone Star’s 51-percent stake in KEB and management control. The clause stipulates that Hana will have to pay 32.9 billion won ($30 million) per month, for April and May or about 66 billion won, if the deal is not completed by the end of March.
The contract was signed by Kim Seung-yu, Hana chairman, and Lone Star Chairman John Grayken in London, last November.
The sum accounts to 100 won per share for Lone Star’s KEB stake. The clause has come into sharp relief as regulators have indicated that no approval can be expected this month.
“We are not responsible for the delay because Lone Star’s eligibility as the major shareholder of KEB is the main cause,” an official of Hana Financial said, asking not to be named. “We are not ruling out a lawsuit against Lone Star if it insists on having us pay.”
In contrast the source said, “The contract calls on Hana to do its best to get the deal done. Is it doing its best? That is a very important legal question that determines whether Hana should be held responsible or not.” The source, however, said that it could be “legally very tricky.”
Some analysts think it could be hard to hold Lone Star accountable, saying that the clause is aimed at protecting the firm from costs incurred by the delay. Thus, a holdup in the regulators’ decision on the legality of Lone Star’s status as KEB’s majority shareholder is beside the point. If the deal is not consummated by May, their contract will allow one party to call it quits, which would free Hana from any compensation payment.
The compensation clause was included in the contract at the request of Lone Star, which argued that the delay of the deal may limit its rights to sell the lender to other potential buyers. Hana Financial agreed to it because the financial group was sure the deal would be completed by March.
It was encouraged by FSC Chairman Kim Seok-dong, who vowed to conclude the case this month. But a decision may not come until next month at the earliest because the Financial Supervisory Service (FSS), the FSC’s executive body, said that no decision was likely in April.
Meanwhile, Goldman Sachs, the erstwhile biggest shareholder of Hana Financial, unloaded about half of its stake in the banking group Thursday.
The U.S.-based global investment bank sold 7.5 million shares in Hana Financial in a block deal, bringing down its stake to 4.46 percent from about 7.56 percent. The shares, sold in blocks to institutional investors before Thursday’s market opening, fetched 43,000 won ($39.80) each, a discount of about 6.5 percent from the market price. Some say that Goldman Sachs wanted to reduce exposure, judging the Hana-Lone Star deal has become precarious. Others say that it was related to Goldman’s internal cash flow situation.
An appellate Seoul court is currently reexamining a stock manipulation case after the Supreme Court sent it back. Paul Yoo, head of Lone Star’s Korean unit, was cleared of stock manipulation of KEB’s credit card subsidiary in 2003 in a reversal of a lower court’s ruling. The highest court disagreed. Under the Korean Banking Law, a major shareholder of a financial company must not have committed any financial crime within five years.
It is quite possible that the regulators will wait for the high court’s decision before coming up with its own at the risk of going against the ruling.