Going-Private Transaction Checklist

Document type: Checklist Practice area: Corporate — Mergers and Acquisitions Jurisdiction: Delaware, with federal Exchange Act overlay Last reviewed: 5 September 2026

Section 1 — Before the controller sends anything

• Confirm controller status. Majority voting power, or actual control over board decision-making? Document the analysis: board seats, contractual vetoes, management ties, history of deference.
• Confirm no substantive economic discussions have already occurred. Exchanged valuation models, price ranges discussed, joint diligence — any of these may have started the ab initio clock. Interview the participants; do not rely on the file.
• Identify potential independent directors and screen preliminarily for disqualifying relationships.
• Decide the structure: one-step merger, tender offer with back-end merger, or tender offer to 90% plus short-form merger. Confirm the standard of review implications of each.
• Confirm appraisal rights availability. All-cash consideration for listed shares restores appraisal.
• Assess financing and whether a financing condition will be included. A financing condition weakens the committee's leverage and is a disclosure item.
• Preserve documents. Issue a litigation hold at the company and at the controller before the proposal goes out.

Section 2 — The proposal letter

• State both MFW conditions expressly, in the first written communication:
  • Approval by a special committee of independent directors;
  • Approval by a majority of shares held by unaffiliated stockholders.
• State that the committee may retain its own legal and financial advisers at company expense.
• State that the committee has the power to reject the proposal definitively, and that the controller will not proceed without committee approval.
• State that the conditions are non-waivable.
• Disclose whether the controller will sell to a third party. If it will not, say so; the omission is worse than the fact.
• Do not include a deadline or an "exploding" price. Coercion defeats condition 6.
• File the proposal as required under Exchange Act reporting obligations, and update the controller's Schedule 13D promptly.

Section 3 — Forming the committee

• Board resolution forming the committee, adopted before any negotiation.
• Written charter granting authority to:
  • Negotiate the terms;
  • Retain and instruct independent legal and financial advisers, compensated by the company;
  • Reject the proposal and terminate discussions;
  • Evaluate alternatives to the extent available;
  • Make a recommendation to the stockholders.
• Independence assessment for each member, going beyond exchange listing standards:
  • Employment or consulting relationships with the controller or affiliates;
  • Business relationships between the director's own company and the controller's group;
  • Family relationships;
  • Shared board service on affiliated entities;
  • Charitable, educational, or social ties;
  • Compensation dependence on the directorship;
  • Any interest in the transaction not shared with the minority.
• Remove and replace any member with a disqualifying tie. Document the removal and the reason; disclose it later.
• Confirm no member has been promised post-closing employment, equity, or board service.
• Set a meeting cadence and appoint a chair.

Section 4 — Advisers

• Committee counsel retained directly by the committee; conflicts check run against the controller and its affiliates.
• Financial adviser selected by the committee from more than one candidate.
• Adviser conflicts disclosed in writing: prior engagements for the controller, expected future work, financing relationships, and any equity position.
• Fee structure documented. Prefer a fee not contingent on completion; if a completion fee is used, document the committee's reasoning.
• No stapled financing to the controller from the committee's adviser.
• Confirm the adviser will deliver a written fairness opinion and that the underlying analyses will be summarized in the proxy.

Section 5 — Information and diligence

• Obtain all sets of management projections prepared in the last 24 months, with dates and authorship.
• Interrogate any recent revision. Who directed it, when, and on what information? Document the answer.
• Require management to present to the committee without the controller present.
• Obtain the controller's own valuation work, to the extent the committee can require it.
• Determine whether a market check is possible. If the controller will not sell, document that alternatives were considered and why none is available.
• Consider a "go-shop" or post-signing market check even in a controller deal, where structurally feasible.

Section 6 — Negotiation

• Committee makes the first counterproposal, supported by its adviser's analysis.
• Record every exchange in minutes: offer, counter, rationale, and the committee's deliberation.
• Demonstrate willingness to say no. At least one rejection with a pause is the single most useful fact in later litigation.
• Negotiate non-price terms as well: closing conditions, termination rights, the treatment of appraisal shares, and management arrangements.
• Defer management's post-closing arrangements until price is agreed, and require disclosure of anything discussed earlier.
• Confirm the majority-of-the-minority condition is drafted correctly — excluding the controller, its affiliates, and, where appropriate, officers and directors with conflicting interests.

Section 7 — Documentation

• Merger agreement with:
  • Non-waivable committee approval condition;
  • Non-waivable majority-of-the-minority condition;
  • Committee's right to change its recommendation;
  • Appropriate termination rights and fees;
  • Representation that the controller has not been promised anything not disclosed.
• Written fairness opinion delivered to the committee.
• Committee resolutions recommending the transaction, reciting the process and the basis.
• Board resolutions adopting the committee's recommendation.

Section 8 — Disclosure

• Proxy statement or information statement including:
  • Background of the transaction, in genuine narrative detail;
  • The committee's composition, charter, and independence determinations, including any member removed and why;
  • All sets of projections, with an explanation of differences;
  • The financial adviser's analyses at a level permitting evaluation of assumptions;
  • The adviser's fees and relationships with the controller;
  • Management's post-closing arrangements;
  • The controller's statement about willingness to sell;
  • Appraisal rights notice and the text of the statute.
• Schedule 13E-3 filed, with:
  • Statement of the filing persons' belief as to fairness and the material factors supporting it;
  • Whether a majority of unaffiliated holders must approve;
  • Whether an unaffiliated representative was retained;
  • Whether a majority of non-employee directors approved;
  • Every report, opinion, or appraisal materially related to the transaction, summarized and made available.
• Consistency check between the Delaware disclosure and the Schedule 13E-3. Inconsistencies are exhibits.
• Update disclosure if material developments occur before the vote.

Section 9 — The vote and closing

• Confirm the tabulation excludes all shares required to be excluded from the minority count.
• Confirm the minority approval condition was satisfied without waiver.
• Deliver the appraisal rights notice within the statutory period after effectiveness.
• Build the perfection file: log every demand received, with date, holder, and share count; obtain cede breakdowns.
• Evaluate prepayment to cap interest on any appraisal claims.
• Preserve the complete process record — minutes, board books, adviser materials, and communications — for the litigation that follows.

Section 10 — Post-closing litigation readiness

• Assemble the MFW compliance memorandum, condition by condition, with record citations.
• Confirm each of the six conditions is supported by contemporaneous documents, not reconstruction.
• Identify the weakest condition and prepare the argument for it now, while witnesses remember.
• Track the 120-day appraisal petition deadline and the § 262(e) statement requests.
• Coordinate defense of the fiduciary claim and the appraisal petition; they have different standards and different discovery.

Section 11 — The independence worksheet

Run this for every proposed committee member and keep the completed sheet. Listing-standard independence is necessary and nowhere near sufficient.

How to use it. A single soft factor rarely disqualifies. A cluster does. Interview each candidate personally rather than relying on the questionnaire; directors under-report social and charitable connections because they do not think of them as business relationships. Where a candidate is close to the line, the cost of excluding them is a smaller committee; the cost of including them is entire fairness review. Exclude.

Section 12 — Common failure modes, and how each one is prevented

• Conditions imposed too late. Prevention: put both conditions in the very first written communication and confirm in interviews that no economic discussion preceded it.
• A committee that never says no. Prevention: require the committee to make at least one counterproposal and to reject at least one offer before accepting.
• Adviser conflicts discovered in discovery rather than disclosed in the proxy. Prevention: require a written conflicts memorandum from the financial adviser at retention, and update it before the opinion.
• Projections revised without an explanation in the record. Prevention: the committee asks the question in a meeting, and the minutes record the answer.
• Management arrangements negotiated in parallel with price. Prevention: an express standstill on management terms until the price is agreed, adopted by committee resolution.
• A minority vote condition drafted to include the wrong shares. Prevention: have counsel independently recompute the excluded share population against the transfer agent's list before the proxy is filed.
• Waiver of a condition under closing pressure. Prevention: draft both conditions as non-waivable in the merger agreement itself, so waiver is not available even by agreement.
• Disclosure that omits the uncomfortable fact. Prevention: a pre-filing review in which committee counsel lists every fact the committee would not want a plaintiff to find, and confirms each is disclosed.

Related documents

• Appraisal rights and controller going-private transactions: fair value, MFW, and the price that sticks
• Pursuing or defending an appraisal claim: a practical guide
• Appraisal and going-private toolkit: special committee charters, fairness opinions, and valuation records
• Fiduciary duties in mergers and acquisitions: Revlon, MFW, appraisal, and the standard of review
• Indemnification and advancement for directors and officers: the fight that starts before the merits