Appraisal Rights and Controller Going-Private Transactions: Fair Value, MFW, and the Price That Sticks

Document type: Article Practice area: Corporate — Mergers and Acquisitions Jurisdiction: United States (Delaware, with federal securities overlay) Last reviewed: 5 September 2026

The one place in corporate law where the deal price is only evidence

Almost everything in transactional law is about what the parties agreed to. Appraisal is not. A stockholder who dissents from a merger, refuses the consideration, and perfects the statutory right gets something extraordinary: a judicial determination of what the shares were actually worth, made without deference to the negotiated price, the board's judgment, the banker's fairness opinion, or the vote of every other holder.

That is a strange power to hand a court, and Delaware has spent forty years deciding how much to use it. The answer has moved. In the 1980s and 1990s, appraisal was a valuation exercise in which the Court of Chancery built its own model of the company and announced a number, sometimes far from the deal price. Beginning around 2016, the Delaware Supreme Court began pushing hard in the other direction — not by changing the statute, but by insisting that a competitive, well-run sale process produces the best available evidence of value, and that a judge who ignores it is substituting speculation for information.

The result is a doctrine with a sliding scale. Where the process was arm's-length, informed, and open to competition, deal price dominates and the petitioner usually recovers nothing beyond what the shares would have paid anyway — sometimes less. Where the process was conflicted, hurried, or closed, the court is free to do its own valuation, and the numbers can move dramatically. The whole game, therefore, is process.

Which is why appraisal is inseparable from the transaction that presents the worst process risk in American corporate law: the controlling stockholder taking the company private. A controller on both sides of a merger is a structural conflict that no amount of banker credentials cures. Delaware's answer — the MFW framework — offers the controller a path back to deferential review, but only if it accepts real constraints at the very beginning, before it has extracted anything.

This article covers both halves: what fair value means, and what a controller has to do to make the price it pays the price that sticks.

Part one: the appraisal remedy

What the statute gives and what it demands

Delaware's appraisal statute, § 262 of the General Corporation Law, is a mechanical trap for the careless. It is not enough to dislike the deal. A stockholder seeking appraisal must:

Hold shares of a class entitled to appraisal. The "market-out" exception withdraws appraisal from shares listed on a national securities exchange or held of record by more than 2,000 holders — unless the consideration is something other than stock of the surviving corporation, listed stock, or cash in lieu of fractional shares. In practice: an all-cash merger of a listed company restores appraisal, because cash is not on the permitted list. This is why appraisal petitions cluster in cash deals.
Demand appraisal in writing before the vote. The demand must be delivered before the stockholder vote is taken, must be made by or for the record holder, and must reasonably inform the corporation of the identity of the holder and the intention to demand appraisal.
Not vote in favor. Abstention or a vote against is required. A "yes" vote is fatal.
Continuously hold through the effective date. Selling the shares before closing forfeits the claim.
File a petition in the Court of Chancery within 120 days of the effective date, or join one filed by another dissenter.

Each step has generated litigation, and the record-holder requirement is the most common failure point. Shares held in street name are held of record by Cede & Co., the nominee of the Depository Trust Company. A beneficial owner who wants appraisal must direct its broker to have Cede make the demand, and must get the shares out of the fungible bulk in the correct amount. This is why appraisal opinions are captioned Cede & Co. v. Technicolor, Inc. — as in the long-running valuation litigation reported at 684 A.2d 289, where Cede appeared as the nominee record holder for the real dissenter.

A practice note that saves cases: the demand mechanics are administered by back offices under time pressure. Confirm in writing, twice, that the demand was made for the correct number of shares by the correct record holder, and keep the confirmation. A demand made a day late or for the wrong share count cannot be fixed.

"Fair value, exclusive of any element of value arising from the accomplishment or expectation of the merger"

That statutory phrase carries almost all the analytical weight. It means two things.

First, the going-concern value of the company as it stood, not liquidation value and not the value of the merged enterprise. The petitioner is entitled to a proportionate share of the company as a going concern, valued on the eve of the transaction.

Second — and this is the operative limit — synergies are excluded. If a strategic buyer pays a premium because combining the target with its own operations generates cost savings, those savings are "value arising from the accomplishment of the merger." They belong to the buyer, not to the dissenter. A dissenter who elects appraisal is asking to be cashed out of the standalone company, and the standalone company is worth less than the combined one.

This exclusion is the single most under-appreciated feature of appraisal. It means that in a well-run strategic auction, the fair value answer is systematically below the deal price, because the deal price includes a share of synergies that the statute takes away. Petitioners who assume appraisal is a free option — "I get the deal price at minimum, plus interest, plus whatever the court adds" — have been badly surprised.

The methodological revolution: Weinberger and its long shadow

The modern law begins with Weinberger v. UOP, Inc., 457 A.2d 701 (Del. 1983). Before Weinberger, Delaware used the "Delaware block method," a rigid weighted average of market value, earnings value, and asset value that produced numbers unmoored from finance. Weinberger threw it out, holding that fair value may be proved by any technique or method generally acceptable in the financial community and otherwise admissible in court.

That opened the door to discounted cash flow analysis, comparable companies analysis, comparable transactions analysis, and everything else a valuation expert can construct. For thirty years it produced a familiar ritual: each side retained a banker-turned-expert, each expert built a DCF, the two DCFs differed by a factor of two or three, and the Court of Chancery picked its way through the assumptions — projections, weighted average cost of capital, terminal growth rate, working capital normalization — and announced a number.

Weinberger also did something else, less noticed but important: it made clear that the fairness inquiry has two components, fair dealing and fair price, and that they are not separate tests to be passed one at a time but aspects of a unitary judgment. Process bears on price, because a bad process produces an unreliable price. That insight became the bridge between appraisal and fiduciary law.

The trilogy: DFC, Dell, and Aruba

Between 2017 and 2019 the Delaware Supreme Court decided three appraisal cases that changed practice more than any statutory amendment.

DFC Global Corp. v. Muirfield Value Partners, L.P., 172 A.3d 346 (Del. 2017) reversed a Chancery decision that had blended deal price, DCF, and comparable companies into a weighted average above the merger price. The Supreme Court declined to adopt a presumption in favor of deal price — it said the statute forecloses judicially created presumptions — but its reasoning left no doubt about direction. Where a transaction results from a robust market check, with adequate information and no impediments to competing bids, the price is "the most reliable evidence of fair value." A court that departs from it needs a reason grounded in the record, not a preference for its own model.

Dell, Inc. v. Magnetar Global Event Driven Master Fund Ltd., 177 A.3d 1 (Del. 2017) went further. The Court of Chancery had found Dell's management buyout price unreliable partly because private equity buyers use an LBO model that targets a required internal rate of return rather than intrinsic value, and partly because no strategic bidder emerged. The Supreme Court rejected both moves. The sale process had a go-shop, a well-informed special committee, and vigorous negotiation; the absence of a strategic topping bid was evidence about value, not a defect in process. The opinion's most quoted line is its warning against "a judicially imposed penalty for a well-run sale process."

Verition Partners Master Fund Ltd. v. Aruba Networks, Inc., 210 A.3d 128 (Del. 2019) is the cautionary coda. Reading DFC and Dell as an invitation to prefer market evidence, the Court of Chancery had awarded the unaffected market price — the trading price thirty days before the deal leaked — which was below the deal price. The Supreme Court reversed, and the reversal is instructive. Unaffected market price is legitimate evidence, but it measures the value of a minority share in the trading market, which may not equal the pro rata value of the enterprise; and using it here meant ignoring a deal price the court had otherwise found reliable. The Supreme Court awarded deal price less estimated synergies, and in doing so effectively named the default methodology for the modern arm's-length appraisal case.

The operating rule after the trilogy:

Process characteristics	Likely fair value anchor
Broad, informed, competitive sale; no conflicts	Deal price less synergies
Single-bidder but informed, negotiated, with market check	Deal price, possibly less synergies
Management buyout with go-shop and independent committee	Deal price less synergies (Dell)
Controller squeeze-out without MFW protections	Independent valuation; DCF live
No market check; conflicted or uninformed process	Independent valuation; DCF dominant

Synergy deduction: the fight nobody prepares for

Once deal price becomes the anchor, the litigation shifts to a narrower and more technical question: how much of the premium was synergies?

This is harder than it sounds. The buyer's internal synergy estimates are the natural starting point, but they are prepared for a board or a lender and are typically optimistic. The relevant number is not total expected synergies but the share of synergies passed to the seller in the price, which requires estimating how the negotiation split the gains. Courts have accepted approaches ranging from "roughly a third of estimated synergies were shared" to detailed reconstructions of the bidder's internal value-creation model.

Practitioners should note the asymmetry this creates. The respondent company argues for a large synergy deduction; the petitioner argues for a small one. The evidence for both lives in the buyer's files — synergy decks, integration plans, board presentations, financing models — which means an appraisal case is often won or lost in document discovery from a party that is now the petitioner's adversary and the company's owner.

When the DCF still wins

The trilogy did not abolish valuation. It conditioned it. A DCF still carries the day where the record shows:

No meaningful market check. A deal negotiated with one buyer, with no pre-signing outreach, no go-shop, and a deal-protection package that discourages topping bids, has not generated market evidence of value.
Material information asymmetry. Where the buyer had management projections the market lacked, the trading price is uninformative and the deal price suspect.
A conflicted process. Where a controller, a management team with a rollover, or a banker with a stapled financing arrangement drove the outcome, the price reflects the conflict.
Reliable projections. A DCF is only as good as its inputs; where the company maintained rigorous, regularly updated, non-litigation-driven forecasts, the model has a foundation. Where projections were created for the deal, courts discount them heavily.

Interest, and the arbitrage that changed the statute

Appraisal awards carry interest at 5% over the Federal Reserve discount rate, compounded quarterly, from the effective date until payment. For most of the post-2008 era this was a return well above the risk-free rate on a claim with limited downside — because the petitioner was entitled to at least the deal price in most reliable-process cases, and to interest on top.

That arithmetic produced appraisal arbitrage: funds buying shares after the merger announcement for the specific purpose of dissenting. Delaware's Supreme Court had blessed the practice as a matter of standing, holding that a petitioner need not prove its particular shares were not voted in favor, so long as the shares were not voted for the merger.

The General Assembly responded in 2016 with two changes: a de minimis exception barring appraisal for listed companies unless the shares seeking appraisal exceed 1% of the outstanding class or the value of the consideration exceeds $1 million; and a prepayment option letting the surviving corporation pay any amount it chooses at any time, stopping interest from running on that amount. The prepayment provision is a genuinely useful defensive tool: a respondent confident that fair value is at or near the deal price can pay the deal price early, cap its interest exposure, and litigate the increment.

Together with the trilogy, these changes shrank the appraisal docket substantially. Appraisal is now a specialist's remedy deployed where process was bad, not a routine hedge.

Part two: the controller going-private transaction

Why the controller is different

A controlling stockholder is not merely a large holder. Delaware treats a stockholder as controlling when it owns a majority of the voting power, or when it owns less but exercises actual control over the board's decision-making with respect to the transaction at issue. The second branch is fact-intensive and has caught holders in the 25–40% range who combined a large stake with board influence, management ties, and the practical ability to block alternatives.

The consequence is that the controller owes fiduciary duties to the minority. Not all controller conduct triggers heightened scrutiny — Sinclair Oil Corp. v. Levien, 280 A.2d 717 (Del. 1971) held that business judgment applies unless the controller receives something to the exclusion of and detriment to the minority. Pro rata dividends are fine; self-dealing is not.

A going-private merger is the paradigm of the exclusive benefit. The controller acquires the minority's shares; the minority receives cash and disappears. There is no version of that transaction in which the controller and the minority are on the same side of the price term.

Entire fairness as the default

Where a controller stands on both sides, the default standard is entire fairness, with the burden on the defendant to prove fair dealing and fair price. This is not a rubber stamp in reverse; it is genuinely hard to win at the pleading stage, which means the controller faces discovery, a trial, and years of exposure.

Weinberger set the framework. Fair dealing asks "when the transaction was timed, how it was initiated, structured, negotiated, disclosed to the directors, and how the approvals of the directors and the stockholders were obtained." Fair price asks about "the economic and financial considerations of the proposed merger."

Rabkin v. Philip A. Hunt Chemical Corp., 498 A.2d 1099 (Del. 1985) confirmed that a fiduciary claim survives even where appraisal is available, if the complaint alleges unfair dealing rather than mere price disagreement — for example, a controller that deliberately waited out a contractual price floor before proposing the squeeze-out. Appraisal and fiduciary claims are alternative, not exclusive, and the choice matters: appraisal gets you a valuation; a fiduciary claim gets you rescissory damages, disclosure remedies, and the possibility of holding the controller and its advisers liable.

The burden shift, and then the standard shift

Delaware's law developed in two steps.

Step one — burden shifting. Kahn v. Lynch Communication Systems, Inc., 638 A.2d 1110 (Del. 1994) held that entire fairness remains the standard in a controller merger, but the burden of proof shifts to the plaintiff if the transaction was approved either by a well-functioning independent committee or by an informed majority-of-the-minority vote. One protection shifted the burden; it did not change the standard. Lynch also warned that a committee is only meaningful if it has real bargaining power, including the ability to say no — and it found that the committee there had been coerced by the controller's threat of a hostile tender offer.

Step two — standard shifting. Kahn v. M&F Worldwide Corp., 88 A.3d 635 (Del. 2014) — universally called MFW — held that a controller merger is reviewed under the business judgment rule, not entire fairness, if the controller conditions the transaction ab initio on both procedural protections operating properly.

That is a large prize. Business judgment review means dismissal on the pleadings absent waste, which converts a multi-year fairness trial into a motion.

The six MFW conditions

The Supreme Court set them out with unusual precision. The merger must be conditioned, from the beginning, on:

Approval by an independent special committee — and the committee members must be independent in fact, not merely under exchange listing standards;
Approval by an uncoerced, informed majority of the minority stockholders;
The special committee being empowered to freely select its own advisers and to say no definitively — the power to reject is the heart of it;
The special committee meeting its duty of care in negotiating a fair price;
The minority vote being informed — full disclosure of material facts, including the committee's process and the bankers' analyses and conflicts; and
No coercion of the minority.

Failure of any condition returns the transaction to entire fairness. The conditions are conjunctive and the courts have enforced them that way.

The word doing the most work is "ab initio." The protections must be in place before any substantive economic negotiation — before the controller has used its leverage to establish a price range. A controller that opens with a price, negotiates for weeks, and then agrees to a committee and a minority vote has already extracted the benefit of its position.

Flood v. Synutra International, Inc., 195 A.3d 754 (Del. 2018) defined the boundary generously but clearly: the conditions must be in place before any substantive economic negotiations begin, not necessarily in the controller's very first written communication. A controller that made an opening proposal and then, before negotiations started, agreed to both protections satisfied the requirement.

Olenik v. Lodzinski, 208 A.3d 704 (Del. 2019) showed the other side. There, months of joint valuation work, exchanged models, and preliminary discussions preceded the MFW conditions. The Supreme Court held the conditions came too late — the parties had "engaged in substantive economic discussions" that set the framework before the protections attached. Preliminary work product can start the clock.

What a special committee actually has to do

The gap between a committee that satisfies MFW and one that does not is a gap in conduct, not in charter language. Practical markers:

Formed before negotiations, with a written charter granting authority to negotiate, to retain advisers at company expense, to reject the proposal, and — critically — to consider alternatives if the mandate permits.
Independent members. Independence is assessed on ties to the controller: business relationships, employment, family, charitable and social entanglement, past service on affiliated boards, and material personal financial interest in the transaction. A director who owes their livelihood to the controller is not independent because a listing standard says so.
Its own advisers, selected by it. A committee that inherits the company's regular banker — the one that expects future engagements from the controller — has a problem. Fee structures matter: a fee contingent on completing the transaction pulls in one direction.
A real negotiation. The record should show counterproposals, movement, and a credible willingness to walk. Committees that accept the opening price after one meeting invite scrutiny even when the price is good.
Adequate time and information. Access to management, to projections prepared in the ordinary course, and to the controller's own analyses where obtainable.
A documented deliberative record. Minutes that record analysis, not attendance.

The tender offer path and the unification of standards

A controller can also go private by tender offer followed by a short-form merger rather than by a one-step merger. Historically this route received different treatment — an offer is not "action by the corporation," so fiduciary duty analysis differed. In re Pure Resources, Inc., Shareholders Litigation, 808 A.2d 421 (Del. Ch. 2002) imposed structural conditions on the non-coercive controller tender offer: subject to a nonwaivable majority-of-the-minority condition, a commitment to a prompt back-end short-form merger at the same price, and no retributive threats.

Delaware has since largely unified the two paths, applying the MFW framework to controller tender offers as well, so that the choice of structure no longer determines the standard of review. This is a sensible convergence: the economic substance is identical, and the minority's vulnerability does not depend on whether it votes or tenders.

Short-form mergers and the appraisal-only remedy

Where a parent owns 90% or more of a subsidiary's stock, it may effect a short-form merger without a board vote of the subsidiary or a stockholder vote. Glassman v. Unocal Exploration Corp., 777 A.2d 242 (Del. 2001) held that entire fairness does not apply to a proper short-form merger; appraisal is the exclusive remedy, absent fraud or illegality, subject to a duty of full disclosure.

The reasoning is structural: the short-form statute deliberately dispenses with process, so importing a process-based standard would nullify it. The practical consequence is significant — a controller that can reach 90%, including through a tender offer with a top-up mechanism, converts a fairness case into an appraisal case, which is a far narrower fight.

The federal overlay: Rule 13e-3

Going-private transactions by an issuer or its affiliates trigger Rule 13e-3 under the Securities Exchange Act, adopted under 15 U.S.C. § 78m and codified in 17 C.F.R. part 240. The rule does not prohibit anything and does not create a fairness standard. It requires disclosure, on Schedule 13E-3, and the required items are pointed:

Whether the filing persons reasonably believe the transaction is fair to unaffiliated security holders, and the material factors underlying that belief;
Whether the transaction is structured so that approval of at least a majority of unaffiliated holders is required;
Whether an unaffiliated representative was retained;
Whether the transaction was approved by a majority of non-employee directors;
Any report, opinion, or appraisal materially related to the transaction — which must be summarized and made available.

Rule 13e-3 disclosure interacts with Delaware disclosure duties, and inconsistency between the two is a gift to plaintiffs. The federal filing forces the controller to commit in writing to a fairness position and to identify the factors supporting it; a Delaware court reading that document years later will hold the controller to it.

The "controller" question that precedes everything

Before any of this doctrine applies, someone has to be a controller. The 50%-plus case is easy. The hard case is the large minority holder, and Delaware's approach turns on actual control over the transaction, not on a bright line.

Courts have looked at whether the holder had the practical power to prevent the board from freely exercising its judgment: board seats and the ability to name more, contractual veto rights over financings, mergers, and budgets, dependence of management on the holder for compensation or career prospects, the holder's history of dictating outcomes, and whether directors deferred as a matter of habit. A 30% holder with three of nine board seats, blocking rights in a stockholders agreement, and a chief executive it installed can be a controller. A 45% holder that has repeatedly lost board votes may not be.

Why it matters so much: the controller determination is often outcome-determinative at the pleading stage. If the plaintiff pleads control, entire fairness applies and the case survives dismissal absent MFW compliance. If the plaintiff cannot plead control, the transaction is reviewed under ordinary standards and a disinterested, informed stockholder vote can cleanse it. This is why sophisticated large holders take pains to avoid the indicia of control — and why the ones who intend to take a company private eventually stop bothering and simply accept controller status with MFW protections.

Gotham Partners, L.P. v. Hallwood Realty Partners, L.P., 817 A.2d 160 (Del. 2002) is a useful reminder that these questions arise outside the corporate form too. In the alternative-entity world, the analysis begins with the partnership or operating agreement, because Delaware permits limited partnerships and LLCs to modify or eliminate fiduciary duties. Where an agreement replaces fiduciary review with a contractual standard — approval by an independent committee, or a "fair and reasonable" test — the contract governs, and the court's job is contract interpretation, not fairness review. See Auriga Capital Corp. v. Gatz Properties, LLC, 40 A.3d 839 (Del. Ch. 2012) and its affirmance in Gatz Properties, LLC v. Auriga Capital Corp., 59 A.3d 1206 (Del. 2012). Practitioners advising an LLC or LP squeeze-out should read the operating agreement before opening a corporate treatise; the answer is frequently in section 7.3 rather than in MFW.

Disclosure claims: the quiet workhorse

Most stockholder litigation over going-private deals is not really about fairness. It is about disclosure, because disclosure claims are cheaper to plead, survive more often, and can be remedied before closing.

A Delaware board seeking stockholder action must disclose all material facts within its control — material meaning there is a substantial likelihood a reasonable stockholder would consider it important in deciding how to vote. In a controller deal, the recurring subjects are:

The financial adviser's conflicts, including prior and expected engagements with the controller, and the fee structure;
Management projections, including all sets prepared, when each was prepared, who directed changes, and why;
The banker's underlying analyses, at a level that lets a stockholder understand the assumptions rather than merely see a range;
The committee's negotiation history, including rejected proposals and the reasons for accepting;
Any conflicts of committee members and management's expected post-closing arrangements, especially retained equity, continued employment, and new incentive grants.

The last item deserves emphasis. Management's post-closing arrangements with the controller are the most reliably omitted material fact in going-private transactions. A chief executive who negotiates on the company's behalf while discussing their own rollover and new option package with the buyer has a conflict, and its non-disclosure will support a claim even where the price is defensible. The cure is procedural and cheap: the committee should require that management's arrangements be negotiated only after price is agreed, and should disclose them.

A well-pleaded disclosure claim defeats MFW condition 5 — the requirement of an informed minority vote — and therefore returns the transaction to entire fairness. That is the leverage. A plaintiff who cannot plausibly challenge $26.25 as a price may still be able to plead that the proxy failed to explain a January projection revision, and that single allegation can convert a motion to dismiss into a fairness trial.

A worked example: the Calderon Foods squeeze-out

The setup. Calderon Foods, Inc. is a NASDAQ-listed specialty grocery distributor. Marisol Calderon, through a family holding company, owns 58% of the common stock and serves as executive chair. The stock trades around $19. The board has seven members: Marisol, her brother Teo (chief operating officer), and five outside directors, three of whom joined at Marisol's invitation and one of whom, Dr. Priya Raghavan, chairs the audit committee and has no other relationship with the family.

In February, Marisol delivers a letter proposing to acquire the 42% she does not own for $23.00 per share in cash. The letter states that the proposal is conditioned on (i) approval by a special committee of independent directors empowered to retain its own advisers and to reject the proposal, and (ii) approval by a majority of shares not owned by the Calderon family, and that she will not proceed without both. She adds that she is not interested in selling her stake and will not vote for an alternative transaction.

Step one: does the ab initio condition hold? Yes, on these facts. The conditions appear in the opening proposal, before any negotiation. Under Flood, that is comfortably early. Compare Olenik: had Marisol and management spent the previous four months exchanging valuation models and discussing price ranges, the conditions would arrive too late no matter what the letter said.

Step two: is the committee independent? The board forms a committee of Dr. Raghavan and two others. One, Warren Petrosyan, runs a logistics firm that derives about 30% of its revenue from Calderon Foods contracts negotiated by Teo. That is a problem. Independence is a fact question, and a director whose business depends on the controller's company is exposed. The right move is to remove him from the committee, not to paper over it with a questionnaire. The committee proceeds with Dr. Raghavan and one other genuinely unaffiliated director, and Chancery has accepted two-member committees where both members are independent and engaged.

Step three: does the committee behave like a buyer's counterparty? It retains its own counsel and its own financial adviser on a fee not contingent on completion, obtains management's ordinary-course five-year plan, and — importantly — asks management to explain why the plan's growth assumptions were revised downward in January, one month before Marisol's letter. That question is the single most valuable thing the committee does. Projections that soften just before a controller's proposal are a recurring pattern and a recurring litigation exhibit.

The committee counters at $28.50, supported by a DCF using the pre-revision plan. Marisol moves to $24.75 and says it is final. The committee declines. Two weeks pass with no deal. Marisol returns at $26.25, and the committee accepts after its adviser opines the price is fair.

Step four: the minority vote. The proxy discloses the committee's process, the two sets of projections and why they differ, the adviser's analyses and fee arrangement, Petrosyan's removal and the reason, and Marisol's statement that she will not sell. That last disclosure is required and is uncomfortable — it tells the minority that no alternative transaction is available — but concealing it is worse. Holders of 71% of the unaffiliated shares vote yes.

Step five: the litigation. A stockholder sues, and a hedge fund holding 3.1% of the outstanding shares files an appraisal petition.

The fiduciary claim. Defendants move to dismiss under MFW. The plaintiff attacks independence and the projections. If the court finds all six conditions satisfied, business judgment review applies and the complaint is dismissed. The vulnerable point is the projection revision: if discovery would show management altered forecasts at Marisol's direction, that is a disclosure and process failure that defeats conditions 4 and 5. The committee's decision to interrogate and disclose the revision is what saves the deal.
The appraisal petition. Here MFW does not help — appraisal is not a fiduciary claim and the business judgment rule does not apply to it. But the process still matters, as evidence. A controller squeeze-out with no market check produces no market evidence of value, so the court will likely run a DCF. The committee's negotiation from $23.00 to $26.25 is evidence of arm's-length dealing; the absence of any outside bidder is not evidence of value here, because Marisol foreclosed alternatives. Expect a genuine valuation trial with an outcome anywhere from the deal price to a meaningful premium above it.

The lesson. MFW protects against the fiduciary claim. It does not eliminate appraisal. A controller that wants finality on price has to either satisfy the de minimis threshold, use the prepayment mechanism to cap interest, or accept that a valuation trial is part of the cost of going private.

Strategic notes for each seat at the table

For the controller

Condition the proposal on both protections in the first written communication. The cost is real — you give up the ability to squeeze — but the alternative is entire fairness and a trial.
Do not touch the projections. Ordinary-course forecasts prepared before any transaction discussion are the most valuable document in the file. Forecasts revised near the proposal are the most dangerous.
Let the committee choose its own advisers, and pay them whether or not the deal closes.
Say clearly that you will not sell, if that is true. It is material, it will come out, and disclosing it is far cheaper than being caught omitting it.
Budget for appraisal separately. Consider prepaying the deal price to stop interest.

For the special committee

Get the charter right before the first meeting, and confirm the power to reject.
Interrogate the numbers. Ask what changed, when, and at whose direction.
Negotiate on the record. Counterproposals, movement, and the willingness to pause are the evidence that you had bargaining power.
Consider whether a market check is possible even against a controller's refusal to sell — sometimes a "no-shop with a fiduciary out plus outreach to confirm no alternative" is available and worth doing.
Disclose the awkward facts. The committee's credibility in litigation rests on the proxy.

For the minority stockholder

Decide early between appraisal and a fiduciary claim, because appraisal requires not voting yes and holding through closing, while a disclosure claim may require the opposite posture.
Run the synergy math before petitioning. In an arm's-length strategic deal, deal price less synergies may be below the merger consideration.
In a controller deal, the calculus is different — there are no third-party synergies to deduct, and the process defects that make DCF live are more common.
Watch the de minimis thresholds and the 120-day filing deadline.