Document type: Checklist Practice area: Corporate — Mergers and Acquisitions Jurisdiction: United States Last reviewed: 5 September 2026

Part A — Bidder: pre-commencement

  • Dealer-manager engaged; internal clearance obtained
  • Depositary onboarded; account established
  • Information agent engaged; mailing volumes estimated
  • Financial printer engaged; filing agent access confirmed
  • Proxy solicitor engaged, if a contest is contemplated
  • Financing committed; no financing condition in a hostile bid
  • Premerger notification analysis complete; filing prepared
  • Foreign competition and investment screening analysis complete
  • Sector approvals identified with lead times
  • Target's defenses profiled: rights plan and trigger; classified board; business combination and control share statutes; advance notice deadline; special meeting and written consent rights; supermajority provisions
  • Advance notice deadline calendared with a 30-day warning
  • Schedule 13D filed if 5% has been crossed; "purpose" item accurate
  • Rule 14e-3 controls implemented: trading restrictions, information log, adviser briefings
  • Litigation hold issued

Part B — Bidder: offer documents

  • Summary term sheet — plain English, fairly presents conditions
  • Offer to Purchase containing:
    • Terms: price, shares sought, expiration, proration, withdrawal, conditions
    • Background of the offer — every contact, with dates
    • Purpose, plans, and proposals — stated honestly, including the back-end merger
    • Source and amount of funds, with commitment conditions
    • Information concerning the target
    • Information concerning the bidder and its control persons, including five-year legal history
    • Interest in the target's securities and transactions in the prior 60 days
    • Conditions, each objectively determinable
    • Regulatory approvals and state takeover statutes
    • Appraisal rights
    • Fees and expenses
  • Letter of Transmittal, with tax certifications and signature guarantee requirements
  • Notice of Guaranteed Delivery
  • Letters to brokers, dealers, banks, and nominees
  • Schedule TO with all exhibits
  • Press release
  • Exchange offer only: registration statement and prospectus

Part C — Bidder: substantive rules

  • Twenty business day minimum offer period, counted correctly
  • All holders: offer open to every holder of the class
  • Best price: highest consideration paid to any holder paid to all
  • Compensation safe harbor: employment, severance, and benefit arrangements approved by independent directors and documented as consideration for services
  • Withdrawal rights throughout the offering period
  • Proration in a partial offer
  • Prompt payment after acceptance
  • No purchases outside the offer during it (subject to applicable exceptions)
  • Conditions not within the bidder's sole discretion

Part D — Bidder: during the offer

  • Daily tender reports from the depositary reviewed
  • Any material change: amend Schedule TO and disseminate
  • Price or percentage change: at least ten business days remaining
  • Other material changes: generally five business days
  • Extension announced by 9:00 a.m. Eastern the next business day, stating approximate shares tendered — named owner and backup assigned
  • Waiver of any material condition treated as material; time allowed
  • Litigation monitored; disclosure supplemented as needed

Part E — Bidder: expiration and closing

  • Every condition confirmed satisfied or validly waived
  • Final tabulation obtained, with guaranteed-delivery shares broken out separately
  • Results announced by press release
  • Shares accepted for payment; payment made promptly
  • Subsequent offering period announced, if used (3–20 business days, no withdrawal rights)
  • Back-end merger: certificate of merger filed under Section 251(h), or short-form merger at 90%, or proxy process
  • Final Schedule TO amendment filed
  • Delisting and deregistration
  • Appraisal petitions monitored (120-day window)

Part F — Target: first forty-eight hours

  • Chair, lead independent director, CEO, and general counsel convene
  • Holding statement issued: board will respond within ten business days; take no action
  • No substantive statements by anyone before the 14D-9 is filed
  • Communications protocol issued to all directors and officers
  • Financial adviser and outside counsel retained; conflicts disclosed and documented
  • Litigation hold issued
  • Defensive facts assembled: rights plan, charter, bylaws, statutes, advance notice deadline, register composition

Part G — Target: the Schedule 14D-9

Due within ten business days of commencement.

  • Position stated: recommend acceptance, recommend rejection, neutral, or unable to take a position
  • Reasons stated substantively, not generically
  • Financial adviser's analyses summarized at a level permitting evaluation of assumptions
  • Adviser's fees and every relationship with the bidder disclosed
  • Management projections relied upon, disclosed with their assumptions
  • Every arrangement between the target and its officers and directors relating to the offer: severance, retention, equity acceleration, indemnification
  • Golden parachute compensation in tabular form, where required
  • Contacts and negotiations with the bidder and any other party
  • Whether alternatives are being explored
  • Any prior public statements by directors or officers, addressed
  • Appraisal rights information

Part H — Target: board process

  • Meeting one: organization, advisers, cadence, committee question
  • Meeting two: management's standalone plan; adviser's preliminary analyses; counsel's legal framework
  • Meeting three: alternatives considered and the reasoning recorded
  • Meeting four: decision, adviser's view, 14D-9 review
  • Minutes record analysis and any dissent, not merely attendance
  • Rights plan decision documented with the threat analysis supporting it
  • Directors confirm their own arrangements are disclosed

Deadline table

Deadline Party Miss consequence
Advance notice nomination deadline Bidder Forfeits contest for a year
Schedule 13D on crossing 5% Bidder Enforcement exposure
Twenty business day minimum Bidder Offer invalid
Ten business days after a price change Bidder Must extend
Extension announcement, 9:00 a.m. ET next business day Bidder Offer expired
Schedule 14D-9, ten business days Target Violation
No recommendation before 14D-9 Target Violation
Prompt payment after acceptance Bidder Violation
Appraisal petition, 120 days Dissenters Claim extinguished

Part I — Preparedness, for targets not currently under offer

Complete annually. The ten-business-day clock is the reason.

  • Defense profile memorandum refreshed: charter, bylaws, classified board status, special meeting and written consent rights, supermajority provisions, state statutes, change-of-control provisions in credit agreements and material contracts
  • Advance notice deadline computed for the coming year and diarized
  • Rights plan form approved and on the shelf, with resolutions and press release drafted
  • Register analysis updated quarterly: concentration, index versus active, event-driven holders, any accumulating positions
  • Advisers pre-cleared for conflicts so retention takes hours, not a week
  • Information agent and proxy solicitor identified
  • Communications protocol distributed: all contact from bidders, analysts, and reporters routes to one named person
  • Board rehearsal conducted: a half-day walk-through of a hypothetical offer
  • Compensation arrangements reviewed — change-of-control terms will be disclosed in a table and criticized
  • Bylaws reviewed by counsel who did not draft them, particularly the advance notice provisions

Part J — The errors that recur

Bidder side. Missing the advance notice deadline. Commencing without committed financing. A Schedule 13D "investment purpose" that contradicts a later control bid. Underestimating depositary and information agent lead times. Failing to restrict trading once a substantial step is taken. An ambiguous fully diluted minimum condition. Waiving a material condition without allowing the required time. Counting guaranteed-delivery shares that never arrive.

Target side. Speaking substantively before the 14D-9. Omitting officers' and directors' compensation arrangements. Maintaining a rights plan without a documented threat analysis. Failing to consider alternatives at all, which is far worse than considering and rejecting them. Applying the advance notice bylaw opportunistically. Treating ten business days as a target rather than a deadline. Concealing an adviser's prior work for the bidder, which converts a manageable disclosure into the plaintiffs' entire case.

Part K — Conditions review

Work through every condition before commencement and confirm each is objectively determinable, disclosed, and consistent with the merger agreement in a negotiated deal.

Condition Drafting requirement Common defect
Minimum condition Stated percentage, measured on a defined fully diluted basis with express treatment of options, restricted stock units, and convertibles Silence on dilutive securities, so the parties disagree at expiration
Regulatory Expiry or termination of waiting periods; named approvals Vague reference to "all required approvals"
Material adverse effect Defined term with carve-outs and a disproportionate-effect qualifier A hostile bidder's MAE so broad the offer reads as illusory
Financing Ideally absent Present in a hostile bid, destroying credibility
Rights plan Redemption or the rights being rendered inapplicable Not stated, so the bidder cannot close and does not say so
State statute Board approval or inapplicability of the business combination statute Overlooked entirely for a non-Delaware target
No litigation Narrow and objective So broad that any filed complaint permits withdrawal
Accuracy of representations Negotiated standard in a friendly deal Absolute accuracy standard, unattainable in practice

The test to apply to every condition: could a reasonable person, reading only the offer document, determine at expiration whether the condition is satisfied? If the answer requires the bidder's judgment, redraft it.

Part L — Post-closing obligations

  • Final amendment to Schedule TO reporting results filed
  • Certificate of merger filed; effective time confirmed
  • Paying agent funded; consideration distributed to non-tendering holders
  • Equity awards settled per the merger agreement
  • Section 16 filings for insiders on disposition
  • Exchange notified; delisting effected
  • Deregistration filed once the holder count permits
  • Appraisal demands logged; 120-day window calendared; prepayment considered
  • Transfer agent and depositary engagements closed out
  • Deal record preserved for the litigation that follows

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