Board Sale Process Checklist: A Practical Checklist

Document type: Checklist Practice area: Business and Corporate — Mergers and Acquisitions Jurisdiction: Delaware (with general application) Last reviewed: 5 September 2026

Part 1 — Week one

Convene the board within days of any credible approach.
Have counsel present the standard of review on one page: business judgment, enhanced scrutiny, or entire fairness.
Determine whether a controlling stockholder stands on both sides. If yes, go to Part 7 immediately — the MFW sequence is unforgiving.
Determine whether this is a change of control triggering Revlon, Inc. v. MacAndrews & Forbes Holdings, Inc., 506 A.2d 173 (Del. 1986): all cash, control to a single buyer or group, or a break-up.
Confirm whether a stock-for-stock structure keeps control in a fluid market, which generally avoids Revlon — Paramount Communications, Inc. v. Time Inc., 571 A.2d 1140 (Del. 1990) — or delivers control to one holder, which does not — Paramount Communications, Inc. v. QVC Network, Inc., 637 A.2d 34 (Del. 1994).
Record the determination in the minutes.
Issue a litigation hold covering board and management communications, advisor materials, projections, and drafts.
Confirm the charter's exculpation provision and whether the 2022 officer exculpation amendment was adopted.
Confirm D&O coverage, including tail provisions and change-of-control terms.

Part 2 — Conflicts, in writing

Written questionnaire to every director, signed and dated:

Business relationships with the buyer, its affiliates, or portfolio companies, past three years.
Board, advisory, or consulting positions with related entities.
Personal or family relationships with principals of the buyer.
Whether director fees are financially significant to the individual.
Any expected post-closing role, investment, or rollover.
Any prior transaction with the buyer.

Written questionnaire to every senior officer:

Existing change-of-control and severance entitlements, quantified.
Equity subject to acceleration, valued at several prices.
Any discussion, however informal, of a post-closing role — with the date.
Any prior relationship with the buyer or its principals.

Company level:

Any stockholder able to block or dictate the outcome.
Existing standstill agreements limiting who may bid.
Contractual consent rights giving third parties leverage.
File every questionnaire. Their absence is conspicuous in discovery.

Part 3 — The committee

Form a committee wherever any conflict exists — controller, management buyout, director relationships, or a management team likely to be retained.
Assess independence factually, not by exchange standards: business ties, social and family relationships, other boards controlled by the same person, and any debt of gratitude for the seat. See Marchand v. Barnhill, 212 A.3d 805 (Del. 2019).
Three to five members.
A chair with genuine availability.

The authorizing resolution must grant power to:

Retain independent legal and financial advisors of its own choosing, at company expense.
Negotiate all terms.
Reject any transaction, with the board committing not to approve what the committee has not recommended.
Evaluate alternatives, including remaining independent.
Control the timetable and the process.
Decide what information goes to which party.

Compensation:

Fixed fee, set before the work begins.
Never contingent on completing a transaction.

Boundaries:

Excluded directors do not attend, do not receive materials, and do not receive informal updates.
Document the exclusion and keep it real.

Part 4 — Advisors

Financial advisor:

Interview at least three.
Obtain, in writing before selection: all fees from the buyer and its affiliates over three years; any current engagement with any likely bidder; whether the firm expects a role in acquisition financing; any position in the securities of any party; the proposed fee and its contingency.
If the lead advisor will participate in financing or has a meaningful buyer relationship, retain a separate advisor for the fairness opinion.
Consider and document whether a partly fixed fee is appropriate for the committee's advisor.

Legal:

Committee counsel engaged by the committee, not by the company or management.
Separate counsel for management's employment arrangements.
Delaware counsel engaged early enough to review the committee resolution, the outreach protocol, and the proxy background section while they can still change.

Part 5 — The market check

Decide the approach and record the reasons: broad auction, targeted confidential outreach, single-bidder with go-shop, or no pre-signing check.
If no pre-signing check, document the specific circumstances justifying it and ensure a real post-signing fiduciary out. See Lyondell Chemical Co. v. Ryan, 970 A.2d 235 (Del. 2009) and C & J Energy Services, Inc. v. City of Miami General Employees' & Sanitation Employees' Retirement Trust, 107 A.3d 1049 (Del. 2014).
Build the contact list with the advisor; the committee approves it; record inclusions and exclusions with reasons.
No don't-ask-don't-waive standstills. Use standstills that fall away on signing.
Give every party at the same stage the same information. Selective disclosure is the fact pattern of Mills Acquisition Co. v. Macmillan, Inc., 559 A.2d 1261 (Del. 1989).
The committee controls the data room, not management.
Maintain an outreach log: who, when, by whom, what was said, why they declined. This becomes the proxy background section.
If using a go-shop: 30–45 days, real information access, and a reduced termination fee (1%–2%).

Part 6 — Projections

Management prepares; the committee reviews and satisfies itself they are genuine best estimates.
Preserve every version, dated.
Document the operating reason for any revision contemporaneously.
Treat a downward revision shortly before a management buyout as the highest-scrutiny event in the process, and document accordingly.
Give the same projections to every bidder and to the fairness opinion provider.
Disclose them, including material revisions, in the proxy.

Part 7 — Controller transactions: the MFW sequence

Kahn v. M & F Worldwide Corp., 88 A.3d 635 (Del. 2014) restores business judgment review only if all six elements hold.

The controller's first written proposal states both conditions: approval of an independent special committee, and an informed, uncoerced majority-of-the-minority vote. Ab initio means before any substantive economic negotiation. If this sentence is not in the first letter, MFW is unavailable.
The committee is independent, assessed factually.
The committee freely selects its own advisors, with no controller involvement.
The controller acknowledges in writing that it will not proceed without committee approval and will not pursue a tender offer or any transaction around the committee.
The committee is empowered to say no definitively.
The committee actually negotiates: independent valuation work, multiple rounds, price movement, at least one rejection, and consideration of the status quo. See Kahn v. Lynch Communication Systems, Inc., 638 A.2d 1110 (Del. 1994).
The minority vote is informed — full disclosure of process, analyses, inputs, conflicts, and alternatives.
The minority vote is uncoerced — no linkage penalizing a "no."
The vote is counted as a majority of shares not held by the controller or its affiliates.

There is no partial credit. One failed element means entire fairness under Weinberger v. UOP, Inc., 457 A.2d 701 (Del. 1983).

Part 8 — Negotiation and terms

Record each offer, counter, and rationale.
Set a walk-away price before the final round, in a closed session, and record it.
Decline at least once where the record supports it.
Keep alternatives alive as long as possible.
Evaluate deal protections as a package, not term by term:
- Termination fee 2%–4% of equity value; justify anything higher.
- No-shop with a fiduciary out.
- Match rights of 3–5 business days; 2–3 on amendments; not unlimited or repeated at full length.
- No requirement to identify a competing bidder by name or disclose its terms.
- Voting agreements below a controlling level; assess together with any force-the-vote provision.
- Avoid a lock-up package that forecloses a superior offer — see Paramount v. QVC.
Record the board's reasoning on the package, not merely its approval.

Part 9 — Management conflicts

Instruct bidders in writing: no discussion of post-closing employment or rollover until price is substantially agreed.
Record the date the topic was first raised, by whom.
Management does not negotiate its own arrangements while negotiating the deal; separate counsel and a separate track.
Any approach about a future role is disclosed to the committee immediately and in writing.
Quantify management's economics at the deal price: acceleration, severance, retention, rollover.
Disclose all of it in the proxy, with dates.

Part 10 — Disclosure and the vote

A fully informed, uncoerced majority vote restores business judgment review in a non-controller deal — the rule of Corwin v. KKR Financial Holdings LLC, clarified in Singh v. Attenborough, 137 A.3d 151 (Del. 2016). The proxy is the case.

Background section:

Every approach, including from parties other than the buyer.
Dates, participants, and substance of each meeting.
Every party contacted, whether it signed an NDA, and why it declined.
Committee formation, membership, and why others were excluded.
Each price offered and countered, with dates.
When management's arrangements were first discussed, by whom.

Financial analyses:

The projections, including revisions and reasons.
The discount rate range and its derivation.
Terminal value assumptions.
Every comparable company and precedent transaction, with specific multiples.
The per-share range each analysis produced.
The advisor's fee, contingency, prior buyer work, and any financing role.

Interests:

Each officer's economics, quantified at the deal price.
Directors' equity treatment.
Indemnification and D&O tail arrangements.
Any continuing role for any director or officer.

Before filing:

Apply the test: could a plaintiff plead that a specific material fact was omitted? If so, add it.
Evaluate pre-closing disclosure claims on the merits and supplement promptly where warranted.
Consider adjourning the vote if a supplement is material and close to the meeting.

Part 11 — Private company adaptations

Prepare an information statement for minority holders covering process, price, alternatives, valuation basis, and management's interests.
If no independent directors exist, appoint one for the transaction, retain an independent advisor with a defined mandate, or use a genuine minority approval mechanism.
Read the stockholder agreement first: drag-along, tag-along, preferences, and consent thresholds.
Confirm any drag-along conditions were satisfied precisely.
Where the price barely clears the liquidation preference, address the preferred-versus-common conflict expressly, with an independent process and an outside valuation.
Assess appraisal exposure; in a private company there is no deal-price anchor from an efficient market.
Keep the same documentation discipline as a public company.

Part 12 — The file, and sign-off

Minutes for every meeting: attendance, materials and when distributed, advice received in substance, alternatives considered, questions directors asked, conflicts and recusals with times, decisions and votes.
Minutes drafted within a week, approved at the next meeting.
Board books and committee materials retained.
Advisor engagement letters and written conflicts disclosures filed.
Conflicts questionnaires filed.
Outreach log complete.
All projection versions preserved.
Drafts preserved — deleting them looks worse than anything they contain.

Before signing, confirm:

The standard of review is identified and the record supports it.
Every conflict is documented and handled.
The committee negotiated and can show it.
The market check is defensible on its own terms.
The deal protection package is within a range of reasonableness.
The fairness opinion provider is unconflicted, or a second provider was used.
The proxy background section has been drafted contemporaneously, not reconstructed.