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

The governance record of a sale is created over four months and read over four years. These templates exist to make the first part cheap and the second part uneventful.

1. Special committee authorizing resolution

RESOLUTIONS OF THE BOARD OF DIRECTORS OF [COMPANY]
Adopted [date]

WHEREAS, the Board has received an indication of interest from
[Party] relating to a possible acquisition of the Company (a
"Potential Transaction");

WHEREAS, certain directors and members of management may have
interests in a Potential Transaction that differ from those of
the Company's stockholders generally;

WHEREAS, the Board has determined that it is advisable to
delegate authority with respect to a Potential Transaction to a
committee of independent and disinterested directors;

NOW, THEREFORE, BE IT RESOLVED:

1. CONSTITUTION. A Transaction Committee (the "Committee") is
established, consisting of [names], each of whom the Board has
determined is independent of, and disinterested with respect to,
[Party] and any Potential Transaction. [Name] shall serve as
Chair.

2. AUTHORITY. The Committee is authorized and empowered, to the
fullest extent permitted by law and the Company's certificate of
incorporation and bylaws, to:
   (a) review, evaluate, and negotiate the terms of any
       Potential Transaction;
   (b) solicit, review, and evaluate alternatives to a Potential
       Transaction, including the alternative of the Company
       remaining independent, and to conduct any process it
       deems appropriate to identify and evaluate alternatives;
   (c) retain, at the Company's expense, such legal, financial,
       accounting, and other advisors as the Committee in its
       sole discretion selects, and to approve their engagement
       terms and compensation;
   (d) determine what information concerning the Company is
       provided to any person, and on what terms;
   (e) determine the timing and process of any evaluation or
       negotiation;
   (f) REJECT any Potential Transaction, definitively; and
   (g) recommend to the Board whether to approve any Potential
       Transaction.

3. NO TRANSACTION WITHOUT COMMITTEE APPROVAL. The Board shall
not approve, recommend, or submit to stockholders any Potential
Transaction that the Committee has not recommended.

4. ACCESS. The Committee shall have full access to the
Company's books, records, personnel, and advisors. Officers and
employees shall cooperate fully.

5. EXCLUSION. [Names of excluded directors] shall not
participate in Committee meetings, shall not receive Committee
materials, and shall not be provided with information concerning
Committee deliberations, except as the Committee determines.

6. COMPENSATION. Each Committee member shall receive a fee of
$[amount] ($[amount] for the Chair) for service on the
Committee, payable regardless of whether any Potential
Transaction is consummated and irrespective of the outcome.

7. MEETINGS. The Committee shall meet as often as it determines
and may adopt its own procedures.

8. NO LIMITATION. Nothing herein limits the Committee's
authority to take any action it deems necessary or advisable.

Drafting notes.

Paragraph 2(f) and paragraph 3 together are what make the committee real. A committee that can be overridden by the full board is a recommendation body, and Delaware courts treat it as one. The power to say no, plus the board's commitment not to proceed without approval, is the difference.

Paragraph 2(c)'s "sole discretion" matters. A committee whose advisor was selected by management or by the controller has not freely selected its advisors, which is a distinct MFW element.

Paragraph 6's "regardless of whether any Potential Transaction is consummated" is not optional. Compensation contingent on closing is the single most damaging fact a committee record can contain.

Paragraph 5 must be enforced, not merely written. Informal updates to excluded directors — a phone call, a hallway conversation, a copied email — undo it.

Adopt this before substantive negotiations begin, and in a controller transaction, before any economic discussion at all.

2. Director conflicts questionnaire

CONFIDENTIAL — TRANSACTION CONFLICTS QUESTIONNAIRE
To: [Director]         Date: __________
Re: Possible transaction involving [Party] ("Counterparty")

Please answer each question completely. If a fact changes at any
time, notify [committee counsel] immediately in writing.

1. Have you, in the past three years, received any compensation,
   fee, or other payment from Counterparty, any of its
   affiliates, or any entity in which Counterparty or its
   affiliates hold an interest?
   [ ] No  [ ] Yes — describe: ______________________________

2. Do you serve, or have you served in the past three years, as
   a director, officer, manager, advisor, or consultant of any
   such entity?
   [ ] No  [ ] Yes — describe: ______________________________

3. Do you have any personal or family relationship with any
   principal, officer, or employee of Counterparty?
   [ ] No  [ ] Yes — describe: ______________________________

4. Do you hold any interest in Counterparty or its affiliates,
   including through a fund or partnership?
   [ ] No  [ ] Yes — describe: ______________________________

5. Has anyone discussed with you, formally or informally, any
   role, investment, or economic participation you might have
   following a transaction?
   [ ] No  [ ] Yes — describe, WITH DATES: __________________

6. Are the fees you receive for service on this Board material
   to your personal financial circumstances?
   [ ] No  [ ] Yes

7. Do you have any relationship with any other party that has
   expressed or may express interest in the Company?
   [ ] No  [ ] Yes — describe: ______________________________

8. Is there anything else that might reasonably be viewed as
   affecting your independence or disinterestedness with respect
   to a transaction?
   [ ] No  [ ] Yes — describe: ______________________________

I confirm the foregoing is complete and accurate.

Signature: ________________  Date: ________________

Drafting notes.

Question 5's "WITH DATES" is the most important instruction in the document. The timing of employment discussions is the fact plaintiffs build cases around, and a contemporaneous record is worth far more than a later recollection.

Question 6 is uncomfortable and necessary. Delaware courts examine whether director fees are material to the individual, because a director dependent on the position may be less willing to say no.

The update obligation in the preamble turns this into a continuing duty rather than a snapshot.

Issue this in week one. A questionnaire dated after the committee was formed raises the question of what the board knew when it made the appointments.

3. Officer conflicts and interests questionnaire

CONFIDENTIAL — OFFICER TRANSACTION INTERESTS QUESTIONNAIRE

1. EXISTING ENTITLEMENTS
   Severance under [agreement/plan]:               $________
   Change-of-control payment:                      $________
   Bonus treatment on a change of control:         $________
   Other:                                          $________

2. EQUITY
   Vested options (count / strike / value at $__): _________
   Unvested options subject to acceleration:       _________
   Restricted stock / RSUs, vested and unvested:   _________
   Performance awards and their treatment:         _________
   TOTAL EQUITY VALUE at $__ per share:            $________

3. DISCUSSIONS ABOUT A FUTURE ROLE
   Has any bidder, or anyone acting for a bidder, raised with
   you the possibility of employment, a role, an investment, or
   an equity rollover following a transaction?
   [ ] No  [ ] Yes
   If yes: who, when (DATE), what was said:
   ____________________________________________________________

4. ROLLOVER
   Have you been asked to, or do you expect to, roll over any
   equity into the acquiring entity?
   [ ] No  [ ] Yes — describe: ______________________________

5. OTHER RELATIONSHIPS
   Any prior employment, investment, or business relationship
   with any bidder or its principals:
   ____________________________________________________________

6. ACKNOWLEDGMENT
   I understand that I must not negotiate any post-closing
   arrangement for myself until the Committee advises that price
   has been substantially agreed, and that I must report any
   approach concerning a future role to Committee counsel
   immediately and in writing.

Signature: ________________  Date: ________________

Drafting notes.

Section 2's total at a specific price is what goes in the proxy. Compute it early; officers are frequently surprised by the number, and so are boards.

Section 6 is an instruction, not a question. Getting it signed establishes that management understood the rule, which matters if someone breaks it.

4. Financial advisor conflicts request

[Date]
[Prospective Advisor]

Re: Proposed engagement — Project [codename]

The Transaction Committee of the Board of Directors of [Company]
is considering your firm's engagement. Before selection, please
provide written responses to the following. Your responses will
be provided to the Committee and may be disclosed in a proxy
statement or other public filing.

1. All fees, of any kind, received by your firm from
   [Counterparty], its affiliates, its principals, and any
   entity in which it holds an interest, during the past three
   fiscal years. Provide aggregate amounts by year and identify
   the nature of each engagement.

2. Any current or anticipated engagement with [Counterparty] or
   any of the entities described above.

3. Whether your firm expects to provide, arrange, or
   participate in financing for any acquiror in connection with
   a transaction involving the Company, and on what terms.

4. Any position, long or short, held by your firm or any
   affiliate in the securities of the Company or of
   [Counterparty] or its affiliates, other than ordinary-course
   market-making and client-directed positions.

5. Any relationship between the members of the proposed
   engagement team and [Counterparty] or its principals.

6. Your proposed fee, including the amount payable on
   announcement, on closing, and on delivery of any opinion, and
   any component tied to transaction value.

7. Whether your firm is prepared to deliver an opinion as to the
   fairness of the consideration from a financial point of view,
   and any conditions on doing so.

8. Any other fact that might reasonably be considered to bear on
   your firm's independence.

Please respond by [date]. The Committee may request further
detail.

Drafting notes.

Item 3 is the question that determines whether you need a second advisor. A firm expecting a financing role has an interest in the deal closing. That is not disqualifying, but it must be disclosed to the committee, disclosed in the proxy, and usually addressed by a separate opinion provider.

The preamble's warning that responses may be publicly disclosed produces more complete answers.

Ask before selection, in writing. A conflicts disclosure obtained after retention is worth much less.

5. Controller's MFW-compliant opening proposal letter

For a controlling stockholder proposing a going-private or squeeze-out transaction. The conditions must appear here, in the first written proposal.

[Date]
Board of Directors
[Company]

Ladies and Gentlemen:

[Controller] proposes to acquire all of the outstanding shares
of common stock of [Company] not already owned by [Controller]
and its affiliates for $[__] per share in cash.

We wish to be clear at the outset about the process we propose.

This proposal is conditioned upon, and we will not proceed with
any transaction absent:

  (i) the approval of a special committee of the Board composed
      solely of directors who are independent of [Controller],
      which committee shall be empowered to retain its own legal
      and financial advisors of its choosing at the Company's
      expense, to negotiate the terms of any transaction, and to
      REJECT any proposal definitively; and

 (ii) the affirmative vote of the holders of a majority of the
      shares of common stock not owned by [Controller] or its
      affiliates or by any officer or director of the Company.

Each of these conditions is non-waivable by us. We will not
proceed by way of a tender offer or any other transaction
structure that would circumvent either condition, and we will
not pursue any transaction with the Company unless both
conditions are satisfied.

[Controller] is interested only in acquiring shares it does not
already own and has no interest in selling its shares in, or
supporting any alternative transaction involving, the Company.

We recognize that the special committee will evaluate this
proposal independently and that no transaction will proceed
unless the committee determines it is in the best interests of
the Company's unaffiliated stockholders.

Very truly yours,

Drafting notes.

This letter is either MFW-compliant or it is not, and there is no way to fix it later. The framework of Kahn v. M & F Worldwide Corp., 88 A.3d 635 (Del. 2014) requires that both protections be in place ab initio — before any substantive economic negotiation. A controller who negotiates first and adds the conditions later gets entire fairness under Weinberger v. UOP, Inc., 457 A.2d 701 (Del. 1983), the same as if it had offered no protections at all.

"Non-waivable by us" and the anti-circumvention sentence are what make the committee's power to say no real. Without them, the committee negotiates in the shadow of a tender offer, and Kahn v. Lynch Communication Systems, Inc., 638 A.2d 1110 (Del. 1994) shows how a court reads that.

The penultimate paragraph forecloses an alternative-transaction argument and is standard.

File this with the Schedule 13D amendment and issue it publicly, which is both required and helpful — the record shows the conditions existed from the start.

6. Board and committee minutes template

MINUTES OF A MEETING OF THE TRANSACTION COMMITTEE
OF THE BOARD OF DIRECTORS OF [COMPANY]

Date:      [date]
Time:      [start] to [end]  [time zone]
Location:  [in person / by video]

PRESENT
  Committee members: [names]
  Absent: [names]
  Also present: [advisors, by firm and name; management, with
  the portions they attended]
  [Note any person who joined or left, WITH TIMES.]

MATERIALS
  The following were distributed on [date, N days in advance]:
  [list]

1. [AGENDA ITEM]
   [Name] of [advisor] presented [substance]. The presentation
   included [the key analyses and their ranges]. Committee
   members asked about [specific questions — this is the most
   valuable content in the minutes]. [Advisor] responded that
   [substance].

2. [AGENDA ITEM]
   Counsel reviewed the Committee's fiduciary duties in the
   context of [a change of control / a controller transaction],
   including [substance of the advice, not a legal conclusion].

3. ALTERNATIVES
   The Committee discussed [alternatives considered], including
   [remaining independent / other counterparties / a different
   structure], and the considerations bearing on each.

4. EXECUTIVE SESSION
   The Committee met in executive session without advisors or
   management from [time] to [time].

5. ACTIONS
   Upon motion duly made and seconded, the Committee resolved
   [text]. The vote was [unanimous / N in favor, N opposed,
   with [name] dissenting on the ground that [substance]].

6. NEXT STEPS
   [Assignments and dates.]

There being no further business, the meeting adjourned at
[time].

_________________________
Secretary to the Committee

Drafting notes — what good minutes contain.

  • Attendance with times. Who left for which portions, and when. This proves recusals happened.
  • When materials were distributed. Materials handed out at the meeting suggest directors could not have absorbed them — the Smith v. Van Gorkom, 488 A.2d 858 (Del. 1985) problem.
  • The substance of advice, not just that advice was given.
  • Alternatives considered and why rejected.
  • The questions directors asked. Omitted from most minutes and the single best evidence of engagement.
  • Dissent, where it occurred. A record of unanimous agreement on everything is less credible than one showing genuine deliberation.

What good minutes avoid.

  • Verbatim transcription. Creates discovery exposure without proving process.
  • Legal conclusions. "The Committee determined it had satisfied its Revlon duties" is argument, and it reads as coached.
  • Long gaps or late drafting. Draft within a week; approve at the next meeting.
  • Sanitizing. Removing the hard conversation removes the evidence that it happened.

7. Outreach log

Maintain from the first contact. It becomes the proxy background section.

| # | Party | Type | Contacted by | Date | Method | Response | NDA signed | Standstill terms | Diligence | Indication | Notes |

Sample rows:

1 | Fenwick Bioholdings | Financial | Harrowgate (M. Reyes) | Mar 15 | Call | Interested | Mar 19 | Falls away on signing | Yes, Mar 22-Apr 18 | $34.50, Apr 20 | Requested management meeting Apr 3
2 | Calderwood Health | Strategic | Harrowgate (M. Reyes) | Mar 15 | Call | Declined | — | — | — | — | Cited pending integration of prior acquisition
3 | [Party] | Strategic | Committee Chair | Mar 17 | Email | No response | — | — | — | — | Followed up Mar 24, Mar 31

Drafting notes.

Record non-responses and declines with reasons. They demonstrate the breadth of the check and they belong in the proxy.

Record the standstill terms. Don't-ask-don't-waive provisions are a live issue; a log showing standstills that fall away on signing forecloses the argument that you suppressed bids.

Record who made contact. Outreach conducted by management rather than by the advisor or the committee raises questions the log can answer or create.

8. Proxy background section outline

BACKGROUND OF THE MERGER

[Written chronologically. Assume a plaintiff's lawyer is reading
it with a highlighter.]

- The Company's strategic review history preceding the
  transaction, including any earlier approaches from any party
  and how they were handled.
- The first contact relating to this transaction: date, who
  initiated, what was said.
- The Board's initial meeting: date, attendees, advice received,
  determination of the standard of review.
- Conflicts identified and how they were addressed.
- Formation of the Committee: date, members, why others were
  excluded, the scope of authority granted.
- Advisor selection: firms considered, conflicts disclosed,
  retentions and their terms.
- The market check: the approach chosen and why; every party
  contacted; NDAs signed; who conducted diligence; who declined
  and why.
- Each indication of interest, with price and date.
- Each negotiation session: date, participants, positions taken,
  price movement.
- Management arrangements: WHEN first raised, by whom, what was
  agreed, and when.
- Projections: preparation, any revisions, the reasons, and when
  each version was provided to bidders and advisors.
- The final negotiation and the Committee's determination.
- The fairness opinion: who delivered it, on what date, and its
  substance.
- Board approval and signing.
- The go-shop, if any: parties contacted, results.

Drafting notes.

Draft it contemporaneously. Someone should own this from week one, updating after every meeting. Reconstructed background sections read as reconstructions and they miss things.

Start early enough. A background section beginning with the eventual buyer's approach, omitting a prior approach from someone else, is a disclosure claim.

Name the parties contacted. Anonymized descriptions ("Party A," "Party B") are conventional but courts have noted that meaningful disclosure sometimes requires more.

Dates on management arrangements. This is the line plaintiffs read first.

9. Management interests table for the proxy

INTERESTS OF DIRECTORS AND EXECUTIVE OFFICERS IN THE MERGER

                     Cash      Equity    Option    Retention   Total
Name / Title        Severance  Awards    Value     / Other     $
------------------------------------------------------------------
[CEO]               ________   ________  ________  ________   ______
[CFO]               ________   ________  ________  ________   ______
[Other NEOs]        ________   ________  ________  ________   ______
Non-employee
 directors (equity)     —      ________     —         —       ______

Assumptions: merger consideration of $__ per share; closing on
[assumed date]; qualifying terminations for each named executive
officer; treatment of performance awards at [basis].

Additional disclosure:
- Post-closing employment: [who, what was agreed, and WHEN the
  subject was first raised].
- Equity rollover: [who, how much, on what terms].
- Indemnification and D&O tail: [terms and duration].
- Any director continuing on the surviving company's board.

Drafting notes.

Quantify. "Certain officers may receive payments" is not disclosure.

State the assumptions. Different closing dates and termination assumptions produce different numbers; disclose the basis.

The "WHEN first raised" line does more work than the table. It is the fact that determines whether a court sees a conflicted process or a normal one.

10. Pre-signing documentation audit

DOCUMENTATION AUDIT — [Project name]        Date: ________
Reviewed by: ______________________

                                                   YES  NO  N/A
Standard of review determined and minuted          [ ]  [ ]  [ ]
Litigation hold issued and acknowledged            [ ]  [ ]  [ ]
Director conflicts questionnaires signed, all      [ ]  [ ]  [ ]
Officer interests questionnaires signed, all       [ ]  [ ]  [ ]
Committee resolution adopted before negotiation    [ ]  [ ]  [ ]
Committee compensation fixed, non-contingent       [ ]  [ ]  [ ]
Excluded directors' exclusion enforced             [ ]  [ ]  [ ]
Advisor conflicts requests sent before selection   [ ]  [ ]  [ ]
Written advisor conflicts responses on file        [ ]  [ ]  [ ]
Second opinion provider retained (if needed)       [ ]  [ ]  [ ]
Committee counsel engaged by the Committee         [ ]  [ ]  [ ]
Market check approach documented with reasons      [ ]  [ ]  [ ]
No don't-ask-don't-waive standstills               [ ]  [ ]  [ ]
Outreach log complete and current                  [ ]  [ ]  [ ]
All projection versions preserved and dated        [ ]  [ ]  [ ]
Revisions documented contemporaneously             [ ]  [ ]  [ ]
Price movement and at least one refusal on record  [ ]  [ ]  [ ]
Walk-away price set and minuted                    [ ]  [ ]  [ ]
Deal protections evaluated as a package, minuted   [ ]  [ ]  [ ]
Management arrangements timing documented          [ ]  [ ]  [ ]
Minutes complete for every meeting                 [ ]  [ ]  [ ]
Minutes drafted within one week of each meeting    [ ]  [ ]  [ ]
Board books and committee materials retained       [ ]  [ ]  [ ]
Drafts preserved (not deleted)                     [ ]  [ ]  [ ]
Background section drafted contemporaneously       [ ]  [ ]  [ ]

FOR CONTROLLER TRANSACTIONS:
Both MFW conditions in the FIRST written proposal   [ ]  [ ]  [ ]
Controller's written anti-circumvention commitment  [ ]  [ ]  [ ]
Committee independence assessed factually           [ ]  [ ]  [ ]
Committee selected its own advisors                 [ ]  [ ]  [ ]
Majority-of-the-minority mechanics confirmed        [ ]  [ ]  [ ]

GAPS AND REMEDIATION: ___________________________________

11. Quick reference — standard of review

Transaction Standard Route to business judgment
Ordinary board decision Business judgment Default
Defensive measures Enhanced scrutiny — Unocal Reasonable in relation to the threat
Change of control Enhanced scrutiny — Revlon Fully informed, uncoerced stockholder vote (Corwin)
Stock-for-stock, control stays fluid Business judgment Paramount v. Time
Stock deal delivering control to one holder Enhanced scrutiny Paramount v. QVC
Controller on both sides Entire fairness — Weinberger Full MFW compliance — MFW
Majority of board interested Entire fairness Independent committee plus informed minority approval
Exculpated care claim Dismissed Malpiede v. Townson
Revlon claim, exculpated directors Requires bad faith Lyondell

Related documents

This toolkit is general information, not legal advice, and does not create an attorney-client relationship. Templates require adaptation by counsel to the entity, the state of incorporation, and the transaction structure.