Running a Sale Process That Survives Review: A Practical Guide for Boards

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

A sale process has two audiences. The first is the buyers, and every director understands that one. The second is a Delaware judge reading the record three years later, and that audience is served — or not — by decisions made in the first fortnight, usually before anyone has thought about litigation.

This guide is organized around the second audience, because serving it well costs surprisingly little and because the alternative is expensive. The good news is that a process built to withstand review is usually also a process that gets a better price. Independence, real competition, and disciplined negotiation are not litigation defenses that happen to be good governance; they are good governance that happens to be a litigation defense.

PART ONE — THE FIRST TWO WEEKS

Step 1: Determine the standard of review before doing anything else

Counsel should present this at the first substantive board meeting, on one page.

Three questions:

Is there a controlling stockholder on both sides? A holder of a majority of the voting power, or a large minority holder who exercises actual control. If yes, the default is entire fairness, and the only route to business judgment review is the MFW framework of Kahn v. M & F Worldwide Corp., 88 A.3d 635 (Del. 2014). Go to Part Five immediately; the sequencing requirement is unforgiving.

Is this a change of control? All-cash acquisitions, transactions delivering control to a single buyer or group, and break-ups trigger the enhanced scrutiny of Revlon, Inc. v. MacAndrews & Forbes Holdings, Inc., 506 A.2d 173 (Del. 1986). Stock-for-stock mergers of widely held companies generally do not — Paramount Communications, Inc. v. Time Inc., 571 A.2d 1140 (Del. 1990) — but a stock deal that puts control in one holder's hands does, per Paramount Communications, Inc. v. QVC Network, Inc., 637 A.2d 34 (Del. 1994).

Is a majority of the board independent and disinterested as to this buyer? Not exchange independence — actual independence, examined factually. If not, entire fairness looms regardless of the deal type.

Write the answer down. The board should be able to say, in the minutes of its first meeting, what standard applies and what that standard requires.

Step 2: Map the conflicts, all of them, in writing

For each director:

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

For each senior officer:

• Existing change-of-control and severance entitlements.
• Equity that accelerates, and its value at various prices.
• Any discussion, however informal, of a post-closing role.
• Any prior relationship with the buyer.

For the company:

• Any stockholder with the ability to block or dictate the outcome.
• Any existing standstill agreements limiting who may bid.
• Any contractual consent rights that give a third party leverage.

Do this in a written questionnaire, signed and dated. It is cheap, it establishes when each fact was known, and its absence is conspicuous in discovery.

Step 3: Decide who runs the process

The default should be a committee, formed at the outset, whenever there is any conflict — a controller, a management buyout, a buyer with director relationships, or a management team likely to be retained.

Committee formation resolution should authorize the committee to:

1. Retain independent legal and financial advisors of its own selection, at company expense.
2. Negotiate all terms of any transaction.
3. Reject any transaction, with the board agreeing not to approve a transaction the committee has not recommended.
4. Evaluate and pursue alternatives, including remaining independent.
5. Control the timetable and the process.
6. Determine what information is shared with which parties.

Size: three to five members. Large enough for judgment, small enough to meet often.

Chair: someone who will actually run it — schedule meetings, push the advisors, and be prepared to say no.

Compensation: a fixed fee for committee service is appropriate and should be set before the work begins. Compensation contingent on completing a transaction is a serious problem and should never be used.

Excluded directors stay excluded. They do not attend committee meetings, do not receive committee materials, and do not receive informal updates. Document the boundary and keep it.

PART TWO — ADVISORS

Step 4: Select the financial advisor properly

Interview at least three. Ask each, in writing:

• All fees received from the buyer, its affiliates, and its portfolio companies in the last three years.
• Any current engagement with the buyer or any likely bidder.
• Whether the firm expects to participate in acquisition financing, and on what terms.
• Any position held in the securities of the company or any likely bidder.
• The proposed fee, its contingency, and any incentive tied to price.

Get the answers in writing before selection, and put them in the committee's records.

On financing. An advisor that will provide buy-side financing has an interest in the deal closing at a price the financing supports. This is common and not automatically disqualifying, but it must be disclosed to the committee before retention, disclosed in the proxy, and — in most cases — addressed by retaining a separate advisor for the fairness opinion.

On fee structure. A wholly contingent fee is standard. The committee should nonetheless consider whether a partly fixed fee is appropriate for its own advisor, and should document the consideration.

Step 5: Retain committee counsel directly

The committee's counsel should be engaged by the committee, not by the company or by management, and should not be the same firm advising management on employment arrangements. This is a small cost and a large difference in the record.

PART THREE — THE MARKET CHECK

Step 6: Decide the shape of the check, on the record

There is no single required approach. Barkan v. Amsted Industries, Inc., 567 A.2d 1279 (Del. 1989) said as much: "there is no single blueprint that a board must follow to fulfill its duties." What is required is that the board have an adequate basis for concluding it obtained the best price reasonably available.

Option A — broad pre-signing auction. Most competitive, most defensible, and most disruptive. Contact a wide field, run staged bidding, and sign with the winner.

Option B — targeted pre-signing outreach. Contact a curated list confidentially. Appropriate where a leak would harm the business, where the universe of plausible buyers is small, or where speed matters.

Option C — single-bidder negotiation with a go-shop. Sign with one party and shop the deal after. Accepted where the go-shop is genuine — sufficient time, real access to information, and a reduced termination fee for a go-shop bidder. C & J Energy Services, Inc. v. City of Miami General Employees' & Sanitation Employees' Retirement Trust, 107 A.3d 1049 (Del. 2014) upheld this structure.

Option D — no check at all. Defensible only in narrow circumstances: an unsolicited premium bid with a hard deadline, a board with strong independent knowledge of value, and a post-signing fiduciary out that permits a superior proposal to emerge. Lyondell Chemical Co. v. Ryan, 970 A.2d 235 (Del. 2009) held that a fast process is not itself a breach where directors are exculpated and no bad faith is shown — but this is the highest-risk path and should be chosen only with a documented rationale.

Whatever you choose, write down why. The minutes should record the alternatives considered, the reasons for the choice, and the board's expectation about what the process would reveal.

Step 7: Run the outreach so it counts

• Contact list built by the advisor and approved by the committee, with the rationale for inclusions and exclusions recorded.
• NDAs without don't-ask-don't-waive standstills. A standstill that prevents a party from making a proposal, and prevents it from asking to be released, converts your market check into evidence that you suppressed bids. Standstills that fall away on the signing of a merger agreement are the safer form.
• Equal information. Every party at the same stage gets the same materials. Selective disclosure to a favored bidder is the fact pattern of Mills Acquisition Co. v. Macmillan, Inc., 559 A.2d 1261 (Del. 1989), and it is fatal.
• The committee controls the data room, not management.
• Log everything. Who was contacted, when, by whom, what they said, and why they declined. This log becomes the background section of the proxy.

Step 8: Manage the projections

Projections drive the fairness opinion, the appraisal analysis, and — if things go wrong — the whole case.

• Management prepares them; the committee reviews and satisfies itself they are management's genuine best estimates.
• Every version is preserved, with dates and the reason for each revision.
• Downward revisions shortly before a management buyout are the single most scrutinized fact pattern in this area. If a revision is warranted, document the operating reason contemporaneously and in detail.
• The same projections go to every bidder and to the fairness opinion provider.
• Disclose them in the proxy, including material revisions.

PART FOUR — NEGOTIATION, TERMS, AND SIGNING

Step 9: Negotiate so the record shows negotiation

The committee's job is to move price and terms. The record should show it did.

• Price movement, documented. Each offer, each counter, each rationale.
• At least one refusal. A committee that never declined an offer has not demonstrated it could.
• Information requests. A committee that asked the advisor for additional analyses, asked management hard questions about the projections, and asked counsel about alternatives looks engaged because it was.
• Alternatives kept alive. Where a second bidder exists, keep it in the process as long as possible. Where none does, document what was done to find one.
• A walk-away price, set before the final round and recorded.

Step 10: Set deal protections as a package

Courts evaluate protections collectively, not term by term.

The standard package for a public change-of-control deal:

What to avoid:

• Unlimited or repeated full-length match rights.
• Provisions requiring the target to identify a competing bidder by name and disclose its terms.
• A lock-up package that together forecloses a superior offer, which Paramount v. QVC condemned.
• Expense reimbursement stacked on top of a full termination fee, unless carefully justified.

Document the board's reasoning on the package, not just its approval.

Step 11: Manage the management conflict

Rules that prevent most problems:

• No discussion of post-closing employment or equity rollover until price is substantially agreed. Instruct bidders in writing, and record the date the topic was first raised.
• Management does not negotiate its own arrangements while negotiating the deal. Separate counsel, separate track, committee oversight.
• Disclose to the committee, immediately and in writing, any approach from a bidder about a future role.
• The committee, not management, decides what information goes to which bidder.
• Quantify management's economics at the deal price — acceleration, severance, retention, rollover — and put the numbers in the proxy.

Why this matters more than it seems. Officers are less protected by exculpation than directors, and a claim that management steered a process toward the bidder offering the best personal outcome is the claim most likely to survive dismissal. The rules above are inexpensive and they remove the factual basis for that claim.

PART FIVE — CONTROLLER TRANSACTIONS AND THE MFW SEQUENCE

If a controlling stockholder is on both sides, this part governs and the sequencing is unforgiving.

Step 12: Get the conditions into the first letter

Kahn v. M & F Worldwide Corp. requires that the transaction be conditioned ab initio on both an independent special committee's approval and an informed, uncoerced majority-of-the-minority vote. "Ab initio" means before any substantive economic negotiation.

Operationally: the controller's initial written proposal must state, in terms, that it will not proceed without (a) the approval of a special committee of independent directors empowered to select its own advisors and to reject the proposal definitively, and (b) the affirmative vote of a majority of shares not owned by the controller or its affiliates.

If that sentence is not in the first letter, MFW is unavailable for that transaction. Adding it in week six does not cure the defect, and the attempt becomes part of the plaintiff's narrative.

Step 13: Constitute a committee that satisfies the elements

• Independence assessed factually, not by exchange standards. Examine business relationships with the controller, social and family ties, other boards controlled by the same person, and whether the director owes the controller a debt of gratitude for the seat. Marchand v. Barnhill, 212 A.3d 805 (Del. 2019) illustrates how deep such ties can run and how seriously courts take them.
• Free advisor selection, with the controller having no role.
• Written acknowledgment from the controller that it will not proceed without committee approval and will not pursue a tender offer or any transaction around the committee.
• Authority to say no definitively, stated in the resolution and acknowledged by the controller.
• Authority to consider alternatives and to control the timetable.

Step 14: Negotiate like an arm's-length counterparty

The fourth MFW element is that the committee met its duty of care in negotiating a fair price. The record must show:

• Independent valuation work commissioned by the committee.
• Multiple rounds with movement.
• At least one rejection.
• Consideration of the alternative of remaining as is.
• A defensible explanation of why the final price was accepted.

Kahn v. Lynch Communication Systems, Inc., 638 A.2d 1110 (Del. 1994) remains a caution: a committee that operates under a controller's implicit threat is not functioning as an arm's-length negotiator, and courts examine whether the committee could realistically have refused.

Step 15: Make the minority vote informed and uncoerced

• Informed means the proxy discloses the process, the committee's deliberations, the advisor's analyses and inputs, the conflicts, and the alternatives considered.
• Uncoerced means no linkage that penalizes a "no" vote — no threat to delist, to cease funding, or to pursue a worse alternative if the vote fails.
• Majority of the minority means a majority of shares not held by the controller or its affiliates, counted separately.

If all six elements hold, the business judgment rule applies and the case is dismissed on the pleadings. If one fails, entire fairness applies. There is no partial credit.

PART SIX — DISCLOSURE AND THE VOTE

Step 16: Write the proxy for the plaintiff who will read it

In a non-controller deal, a fully informed, uncoerced majority vote cleanses the transaction and restores business judgment review — the rule the Delaware Supreme Court adopted in Corwin v. KKR Financial Holdings LLC and clarified in Singh v. Attenborough, 137 A.3d 151 (Del. 2016). Which means the proxy is the case.

The background section should read like a chronology written by someone with nothing to hide:

• Every approach, including ones that went nowhere and ones 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.
• The committee's formation, its members, and why others were excluded.
• Each price offered and countered, with dates.
• When management's post-closing arrangements were first discussed, by whom, and what was agreed.

The financial analyses section should disclose inputs, not just conclusions:

• The projections, including revisions and the reasons for them.
• The discount rate range and how it was derived.
• Terminal value assumptions — growth rate or exit multiple.
• Every comparable company and every precedent transaction, with the specific multiples.
• The per-share range each analysis produced.
• The advisor's fee, its contingency, its prior work for the buyer, and any financing role.

The interests section:

• Each officer's severance, acceleration, retention, and rollover, quantified at the deal price.
• Directors' equity treatment.
• Any indemnification or D&O tail arrangements.
• Any continuing role for any director or officer.

The test to apply before filing: if a plaintiff's lawyer could write a complaint alleging that a specific material fact was omitted, add the fact.

Step 17: Handle pre-closing suits and supplemental disclosures

Pre-closing disclosure suits are routine. Most resolve with a supplemental disclosure and a mootness fee.

• Evaluate each alleged omission on the merits. If it is material, disclose it — the cost of a supplement is trivial compared to defeating cleansing.
• File supplements promptly and, where the timing warrants, consider whether the vote should be adjourned to give stockholders time to absorb them.
• Do not disclose grudgingly. A supplement that adds three words to a sentence invites an argument that the disclosure remains incomplete.

Step 18: Close the record

After the vote and before closing:

• Confirm the minutes for every meeting are approved and complete.
• Confirm every conflicts questionnaire is signed and filed.
• Confirm the advisor engagement letters and conflicts disclosures are in the file.
• Confirm board books, committee materials, and the outreach log are preserved.
• Confirm the litigation hold covers everything, including drafts.

PART SEVEN — A WORKED PROCESS

Aldbury Diagnostics (NASDAQ: ALDB), a clinical testing company, trades around $27. Its founder and chair, Reginald Astaphan-Vieira, holds 9 percent. In February, Kestrelmoor Partners, a private equity firm, proposes $36 per share in cash.

February 14 — first board meeting. Counsel presents the standard of review on one page: all cash, change of control, Revlon applies; no controlling stockholder, so entire fairness is not implicated unless a majority of the board is conflicted. Conflicts questionnaires go out that afternoon.

February 20 — conflicts return. Two directors surface issues: one sits on the board of a Kestrelmoor portfolio company; another's brother-in-law is a Kestrelmoor operating partner. The CEO, Ingrid Baptiste-Oyelaran, discloses that a Kestrelmoor principal mentioned, in passing, that "the team would stay." She discloses it in writing the same day, which is exactly right.

February 22 — committee formed. Five independent directors. The resolution grants full authority including the power to reject. The two conflicted directors are excluded from all committee proceedings. Committee fee: $75,000 for the chair, $50,000 for members, fixed, non-contingent.

February 25 to March 8 — advisors. Three banks interviewed. One discloses $22 million in fees from Kestrelmoor portfolio companies over three years and is not retained. Harrowgate & Sale is retained as lead advisor and discloses that it expects to seek a role in the acquisition financing. Because of that, the committee separately retains Nordstrand Advisory for the fairness opinion. Committee counsel is retained directly.

March 10 — market check decision. The committee rejects a broad auction: Aldbury's hospital contracts contain change-of-control provisions and a public process risks customer flight. It approves confidential outreach to fourteen parties — eight strategic, six financial — under NDAs with standstills that terminate on signing of any merger agreement. The rationale is recorded in the minutes.

March 15 to April 22 — outreach. Nine decline. Five sign NDAs. Three conduct diligence. Two submit indications: Fenwick Bioholdings at $34.50, and a strategic buyer at $37.25 with a financing condition and a longer timeline.

April 25 — the projections question. Management proposes revising the five-year plan downward to reflect a reimbursement rate change. The committee spends a full meeting on it, asks for the underlying analysis, obtains a memorandum from the reimbursement consultant, and concludes the revision is warranted. Both versions are preserved, the reason is documented contemporaneously, and both are later disclosed.

April 28 to May 20 — negotiation. Kestrelmoor moves from $36 to $38.50. The committee declines, citing the strategic bidder's $37.25 and the committee's own view of value. Kestrelmoor offers $40.00; the committee declines again and sets a walk-away of $41.00 in a closed session, recorded. Kestrelmoor comes to $41.50 with a full equity backstop and no financing condition. The strategic bidder declines to improve.

May 22 — terms. No-shop with a fiduciary out. Termination fee of $47 million, 3.0 percent of equity value. Four-business-day match, two days on amendments. Thirty-five-day go-shop with a reduced fee of 1.6 percent. Force-the-vote. No voting agreements. Nordstrand delivers a fairness opinion; Harrowgate's financing role is disclosed to the committee in writing and in the proxy.

May 23 — signing and announcement.

May 24 to June 27 — go-shop. Harrowgate contacts thirty-one parties. Two sign NDAs. Neither bids.

July 15 — proxy filed. Background section, fourteen pages, naming every party contacted. Full disclosure of both projection sets and the reason for the revision. Discount rate range with derivation, comparable companies with multiples, precedent transactions with multiples, per-share ranges. Advisor fees, contingencies, financing role, and the three-year fee history with Kestrelmoor for all interviewed banks. Management's economics quantified: Ingrid's acceleration and severance total $18.4 million at $41.50, disclosed with the date her post-closing role was first discussed.

August 2 — two disclosure suits. The company issues a supplemental disclosure adding the specific weighted average cost of capital inputs and one additional precedent transaction. Plaintiffs withdraw; mootness fees total $310,000.

September 9 — vote. 94 percent of shares voted in favor; 71 percent of outstanding.

October — closing.

January, following year — post-closing damages suit. Defendants move to dismiss on cleansing. Granted. The court finds the vote fully informed and uncoerced, and the complaint fails to identify a material omission.

Total governance cost: roughly $3.9 million, including the second fairness opinion, committee fees, and additional advisor and counsel time. Total litigation cost: about $1.4 million over ten months.

The counterfactual. Had the CEO run the process, had the conflicted directors participated, had the financing role gone undisclosed, or had the projections revision been undocumented, any one of those facts supports a well-pleaded claim, defeats cleansing, and produces a case measured in years with entire-fairness-style discovery.

PART EIGHT — CALENDAR, BUDGET, AND STAFFING

A realistic calendar

For a public company change-of-control transaction with a confidential market check:

Compressible: outreach and negotiation, if the field is small. Not compressible: conflicts work, committee formation, and the proxy. Compressing those is where the problems come from.

Budget

The last two rows are the entire argument for doing this properly.

Staffing

The committee chair must have time. This is a substantial commitment — often twenty to thirty meetings over four months — and a chair who cannot attend is a governance problem.

Committee counsel should have a partner who attends every meeting and an associate who owns the record: minutes, resolutions, questionnaires, engagement letters, the outreach log, and the disclosure schedule of who knew what when.

The lead financial advisor runs outreach and negotiation support. The opinion provider should be genuinely separate, with its own team.

Company counsel handles the merger agreement, the regulatory workstream, and the proxy, coordinating with committee counsel on the background section.

Someone must own the proxy background section from day one, drafting it contemporaneously rather than reconstructing it in month five. This is the single most useful staffing decision in the entire process.

PART NINE — MISTAKES THAT RECUR

Adding MFW conditions after negotiations start. The most valuable protection in Delaware corporate law, forfeited by sequencing. Put both conditions in the controller's first letter.

Conflicts questionnaires issued late, or never. They establish when facts were known. Do them in week one.

Committee compensation contingent on closing. Never do this.

Don't-ask-don't-waive standstills. They turn a market check into evidence of suppression.

Management negotiating its own package during the deal. Separate track, separate counsel, disclosed dates.

Projections revised without contemporaneous documentation. The most scrutinized fact pattern in this area.

A proxy that gives conclusions without inputs. The standard route past a motion to dismiss.

A background section that starts with the eventual buyer. Earlier approaches from others are material.

Deal protections negotiated term by term. Courts assess the package.

A committee that never says no. Formal compliance, substantive failure.

Minutes drafted months later. They read as reconstructions because they are.

Excluded directors kept informally in the loop. The exclusion has to be real.

Advisor conflicts disclosed to the board but not the stockholders. Both are required.

PART TEN — FREQUENTLY ASKED QUESTIONS

Do we have to run an auction? No. There is no single blueprint. You must have an adequate basis for believing you obtained the best price reasonably available, and you must document how you got there.

Can we sign with one bidder and shop afterward? Yes, if the go-shop is genuine: enough time, real information access, and a reduced termination fee for a go-shop bidder.

How large a termination fee is safe? 2 to 4 percent of equity value is customary. Above that, be prepared to justify it, and evaluate it together with the match rights and any voting agreements.

Our CEO will be retained by the buyer. Is that fatal? No, and it is very common. What matters is that it was disclosed when it arose, that management did not control the process, that employment terms were not negotiated until price was substantially set, and that the economics are quantified in the proxy.

Do we need two financial advisors? Not always. You do if your lead advisor has a financing role or a meaningful relationship with the buyer. The cost is small relative to what it removes.

What if a director has a relationship with the buyer? Exclude them from committee deliberations, document the exclusion, keep it real, and disclose the relationship in the proxy.

Does a stockholder vote protect us? In a non-controller deal, a fully informed and uncoerced majority vote invokes the business judgment rule and effectively ends post-closing damages claims. "Fully informed" is where these fail.

What about appraisal? After DFC Global Corp. v. Muirfield Value Partners, L.P., 172 A.3d 346 (Del. 2017), Dell, Inc. v. Magnetar Global Event Driven Master Fund Ltd., 177 A.3d 1 (Del. 2017), and Verition Partners Master Fund Ltd. v. Aruba Networks, Inc., 210 A.3d 128 (Del. 2019), a competitive process in an efficient market makes deal price less synergies the anchor. A flawed process reopens the valuation question. The market check is an appraisal defense as much as a fiduciary one.

How fast can we move? Faster than most boards think, if the conflicts work and the committee formation happen in parallel with everything else. Lyondell confirms that speed alone is not a breach. What speed cannot excuse is skipping the conflicts analysis or the disclosure work.

Are we exposed personally? Rarely, if the charter has an exculpation provision and the claim is a care claim — see Malpiede v. Townson, 780 A.2d 1075 (Del. 2001). Loyalty and bad faith claims are not exculpated, and officers are protected less than directors. Process is what keeps a complaint from pleading those.

PART ELEVEN — PRIVATE COMPANY SALES

Everything above assumes a public company. Private sales raise the same duties with none of the machinery, and the adaptations matter.

There is no proxy, so disclosure happens differently. Where minority holders must consent or will be cashed out, they are entitled to material information. Prepare an information statement covering the process, the price, the alternatives, the valuation basis, and management's interests — the substance of a proxy, delivered privately. This is the single most effective step in reducing post-closing claims from minority holders.

There may be no independent directors. Where the board is management and the controlling investor, a committee cannot be assembled from existing members. Options: appoint an independent director for the transaction; retain an independent financial advisor and give it a defined mandate; or obtain minority approval through a genuine majority-of-the-minority mechanism. The MFW structure adapts, and adapting it is worth doing where a controller is on both sides.

Stockholder agreements often control. Drag-along rights, tag-along rights, preferred liquidation preferences, and consent thresholds may determine the outcome regardless of fiduciary analysis. Read the stack first. A drag-along that has been validly triggered answers many questions the case law would otherwise pose — but only if its conditions were satisfied precisely.

Preferred and common interests diverge. Where a sale price clears the liquidation preference with little left for common, the board is choosing between classes, and Delaware law requires it to act in the interest of the common stockholders as residual claimants — with directors designated by preferred holders facing an obvious conflict. This is the most common source of private-company fiduciary litigation. The response is the same: an independent process, an outside valuation, and a documented rationale.

Appraisal exists in private companies too. Stockholders who dissent from a merger have statutory appraisal rights unless an exception applies, and in a private company with no market price, the valuation fight is unconstrained by deal-price anchoring. A negotiated process with real competition is worth more here than in a public deal, not less.

And the documentation discipline is identical. Minutes, conflicts questionnaires, engagement letters, valuation materials, and a contemporaneous record of what was considered. Private company boards routinely skip these and routinely regret it.

PART TWELVE — WHERE TO GET HELP

Delaware counsel, early. Not only for an opinion at signing. A Delaware practitioner who reviews the committee resolution, the outreach protocol, and the proxy background section while they can still be changed is worth more than one who reviews them afterward.

A second financial advisor where the lead has any relationship with the buyer or any financing role. It costs a fraction of the litigation it prevents.

An independent director recruiter where a private company needs an unconflicted decisionmaker and does not have one. Adding a director for a transaction is unusual and entirely proper.

The company's D&O broker. Confirm the tail coverage, the change-of-control provisions, and whether the policy responds to fiduciary claims arising from the transaction. Do this before signing, when the terms can still be negotiated into the merger agreement.

A proxy specialist. The background and financial analyses sections are technical writing with a legal purpose, and people who do them constantly do them better.

And your own general counsel's judgment about the board. The most common failure in a sale process is not a legal error; it is a board that does not understand that its choices in the first two weeks determine everything. Someone has to say that out loud, on the record, at the first meeting.

Related documents

• Fiduciary Duties in Mergers and Acquisitions: Revlon, MFW, Appraisal, and the Standard of Review
• Board Sale Process Checklist: A Practical Checklist
• Deal Governance Toolkit: Board Minutes, Fairness Opinions, and Disclosure Schedules
• Fiduciary Duties of Directors and Officers: The Business Judgment Rule, Loyalty, and Caremark Oversight
• Corporate Governance Toolkit: Boards, Committees, and Fiduciary Process
• HSR Premerger Notification: When a Deal Must Be Reported and What Happens Next
• IP Due Diligence Checklist for Mergers and Acquisitions: A Practical Checklist

This guide is general information, not legal advice, and does not create an attorney-client relationship.