[Summary of Revisions]

Type		Old Scheme	New Scheme
Korean entity with national core technology with government R&D funding	Agreeing to Triggering Transaction	Pre-reporting (allowed in principle and exceptions for blocking)	Pre-approval (prohibited in principle and exceptions for allowing)
	Becoming aware of Triggering Transaction	Report without delay	Report without delay
Korean entity with national core technology without government R&D funding	Agreeing to Triggering Transaction	X	Pre-reporting (allowed in principle and exceptions for blocking)
	Becoming aware of Triggering Transaction	X	Report without delay

  1. Introduction of Pre-approval Scheme The old Act required a Protected Entity to report to the Ministry of Trade, Industry and Energy (the “MOTIE”) if it has developed a national core technology with government R&D funding and wish to carry out a Triggering Transaction. In such case, if it is determined that there is a material threat to national security from such national core technology being divulged, the MOTIE is authorized under the Act to suspend, prohibit or unwind the Triggering Transaction. Hence, the old scheme allowed Triggering Transactions in principle except in limited circumstances concerning national security. Starting February 21, 2020, the revised Act requires a Protected Entity with a national core technology with government R&D funding to obtain an approval from the MOTIE prior to proceeding with any Triggering Transaction. This new scheme provides that a Triggering Transaction in such case is in principle prohibited and will be permitted in exceptional cases (see Article 11-2(1) of the new Act and Article 18-3 of the new Act’s Enforcement Decree). In addition, when approving a Triggering Transaction, the MOTIE is authorized to impose condition(s) as it deems necessary (see Article 11-2(4) of the new Act). 2. Expansion of Protected Entities The new Act has broadened the scope of Protected Entities to include those with national core technology developed without government R&D funding. Such Protected Entities are required to report any Triggering Transaction to MOTIE prior to completing such Triggering Transaction. If it is determined there is a material threat to national security from such national core technology being divulged, MOTIE is authorized under the Act to suspend, prohibit or unwind the Triggering Transaction (see Article 11-2(5) of the new Act and Article 18-5(3) of the new Act’s Enforcement Decree). 3. Reporting Duty on Protected Entities for Unsolicited Triggering Transaction If an unsolicited Triggering Transaction comes from a foreign investor or company, the Protected Entity is required to report such Triggering Transaction to MOTIE upon becoming aware of it. This duty used to apply only to Protected Entities with national core technology with government R&D funding but is now expanded to Protected Entities with national core technology without government R&D funding (see Article 11-2(6) of the new Act and Article 18-5(2) of the new Act’s Enforcement Decree). 4. Penalty for Violation The new Act imposes a criminal penalty of imprisonment up to 15 years or fine up to KRW 1.5 billion in the event (i) a Triggering Transaction is completed for the purpose of using national core technology abroad without pre-reporting or pre-approval or (ii) a pre-reporting was made or a pre-approval was obtained through improper means (see Articles 36(2), 14(6) and 14(6-2) of the new Act). 5. Implications The new Act strengthens the protection of national core technologies. If a foreign investor or company is seeking to obtain control over a Korean company with a strong technology portfolio, it would need to diligence on whether any such technology is classified as a national core technology and, if so, whether it was developed with national R&D funding and assess whether any exception may be applicable. In addition, pre-completion covenants and conditions precedent in a definitive agreement may need to address this issue to minimize execution risk. If you have any questions regarding this article, please contact below: Sung Min KIM ([email protected]) Bryan SHIN ([email protected]) Ha Yan BANG ([email protected]) For more information, please visit our website: www.leeko.com