Tender Offer Toolkit: Offer Documents, Recommendation Statements, and Conditions

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

Tool 1 — Summary term sheet skeleton

The most-read page in the offer. Plain English, bullets, no advocacy.

SUMMARY TERM SHEET

• Who is offering to buy my shares? [Bidder], a [entity] and a wholly owned subsidiary of [Parent]. See Section [__].
• What are you offering to buy? All outstanding shares of common stock of [Target].
• How much are you offering and in what form? $[__] per share, in cash, without interest and less any required withholding.
• Why are you making this offer? [State the purpose plainly, including the intended back-end merger.]
• Do you have the financial resources? Yes. [Describe. State expressly if the offer is not conditioned on financing.]
• How long do I have to decide? Until [__] p.m. Eastern on [date], unless extended.
• Can the offer be extended, and how will I know? Yes. Any extension will be announced by press release no later than 9:00 a.m. Eastern on the next business day after the scheduled expiration.
• What are the most important conditions? [List them, fairly. Do not bury the minimum condition or the rights plan condition.]
• How do I tender? [Mechanics, including book-entry and guaranteed delivery.]
• Can I withdraw? Yes, at any time before the expiration.
• What happens if I do not tender? [Describe the back-end merger and the consideration, and note appraisal rights.]
• Whom can I call? [Information agent, toll-free.]

Annotation. Plaintiffs' first exhibit is a summary term sheet that oversells the offer and understates the conditions. Present the conditions fairly here, in the same terms used in the conditions article.

Tool 2 — Conditions of the offer

Section [__]. Conditions of the Offer. Notwithstanding any other provision, Purchaser shall not be required to accept for payment or pay for any Shares, and may terminate or amend the Offer, if:

(a) Minimum Condition. There shall not have been validly tendered and not validly withdrawn a number of Shares that, together with Shares then owned by Parent and its subsidiaries, represents at least a majority of the Shares outstanding, determined on a fully diluted basis (treating as outstanding all Shares issuable upon exercise of options and settlement of restricted stock units that are, in each case, vested and exercisable or settleable as of immediately prior to the Expiration Time, and excluding Shares tendered by guaranteed delivery that have not been delivered);

(b) Regulatory Condition. Any applicable waiting period under [the premerger notification statute] shall not have expired or been terminated, or any approval listed on Annex A shall not have been obtained;

(c) Rights Condition. The Rights shall not have been redeemed or rendered inapplicable to the Offer and the Merger;

(d) Statute Condition. [The business combination statute] shall not have been rendered inapplicable to the Offer and the Merger;

(e) No Injunction. Any order or law shall be in effect that prohibits consummation;

(f) Material Adverse Effect. A Material Adverse Effect shall have occurred and be continuing;

(g) Representations and Covenants. [In a negotiated offer: the accuracy standards and covenant compliance from the Merger Agreement.]

Each condition is for the sole benefit of Parent and Purchaser and may be waived in whole or in part at any time, in each case subject to applicable law and the terms of the Merger Agreement. The failure to exercise any right shall not be a waiver, and each right may be asserted at any time.

Annotations.

• (a) is the most litigated. The fully diluted definition must be explicit and must say how guaranteed-delivery shares are treated. Ambiguity here produces a dispute at the worst moment.
• (c) and (d) are honest acknowledgments in a hostile bid that the offer cannot close without board action. Omitting them does not make the problem go away.
• (f) in a hostile offer will be attacked as illusory if drafted too broadly. Borrow a negotiated MAE definition with carve-outs — it is more credible and harder to attack.
• Every condition must be objectively determinable. A condition satisfied "in Purchaser's sole judgment" risks rendering the offer illusory.

Tool 3 — Extension press release

[Bidder] Extends Tender Offer for [Target]

[City, Date] — [Bidder] today announced that it has extended the expiration of its tender offer for all outstanding shares of common stock of [Target] to [] p.m., Eastern Time, on [date]. The offer was previously scheduled to expire at [] p.m. Eastern Time on [date].

The depositary has advised that, as of [] p.m. Eastern Time on [date], **approximately [] shares had been validly tendered and not validly withdrawn**, representing approximately [__]% of the outstanding shares.

All other terms and conditions of the offer remain unchanged. Shares previously tendered and not withdrawn remain tendered.

Annotations.

• Issue no later than 9:00 a.m. Eastern on the next business day after the scheduled expiration. This is a hard deadline and a missed one means the offer has expired.
• The tendered-share figure is required. Get it from the depositary the evening before and confirm the count excludes undelivered guaranteed-delivery shares.
• Assign the release to a named person with a named backup, and draft it in advance.

Tool 4 — Target holding statement (day one)

[Target] Board to Review Unsolicited Offer

[City, Date] — The Board of Directors of [Target] today acknowledged the unsolicited tender offer commenced by [Bidder].

Consistent with its fiduciary duties and applicable law, the Board will review the offer carefully, in consultation with its financial and legal advisors, and will advise stockholders of its position within ten business days.

[Target] stockholders are urged to take no action at this time pending the Board's review and recommendation.

[Target] has retained [adviser] as financial advisor and [firm] as legal counsel.

Annotations.

• Say nothing substantive. Before the 14D-9 is filed the target may not solicit or recommend acceptance or rejection. "Grossly inadequate" is a recommendation.
• Issue same day. Silence is filled by the bidder.
• Pair it with an internal communications protocol routing all inbound contact to one named person.

Tool 5 — Board resolutions: recommendation and rights plan

WHEREAS, on [date], [Bidder] commenced an unsolicited tender offer for all outstanding Shares at $[__] per Share (the "Offer");

WHEREAS, the Board has retained [financial adviser] and [counsel], has received and reviewed [adviser]'s financial analyses, has reviewed management's long-range plan and the assumptions underlying it, has considered the Offer's conditions and financing, has considered the availability and desirability of alternatives, and has met on [dates];

RESOLVED, that the Board has determined that the Offer is inadequate and not in the best interests of the Company and its stockholders, on the basis that (i) the Offer does not reflect [state the substantive reason — e.g., the value of the pending regulatory approval, the standalone plan, the Company's position in [market]], (ii) [second reason], and (iii) [third reason];

RESOLVED FURTHER, that the Board recommends that stockholders reject the Offer and not tender their Shares;

RESOLVED FURTHER, that the Board, having determined that the Offer presents a threat to the Company and its stockholders in that [state the threat — e.g., it is substantively coercive in that it would deprive stockholders of value the Board reasonably believes will be realized], and having determined that maintaining the Rights Agreement is a proportionate response that is neither coercive nor preclusive, declines to redeem the Rights at this time;

RESOLVED FURTHER, that the officers are authorized to prepare and file a Schedule 14D-9 consistent with these resolutions.

Annotations.

• State the substantive reason. "Inadequate" alone is not a reason, and a 14D-9 reciting generic inadequacy is both weak disclosure and weak defense.
• Identify the threat and the proportionality reasoning for the rights plan decision. That is the record enhanced scrutiny requires.
• Record the alternatives analysis in the minutes even if the answer is that no alternative is available. A board that never considered alternatives is in a much worse position than one that considered and rejected them.

Tool 6 — Compensation committee resolution (best price safe harbor)

RESOLVED, that the Compensation Committee, each member of which is an independent director, has reviewed the [severance / retention / equity acceleration] arrangements with [named executives] described on Exhibit A, and has determined that each such arrangement (i) is being entered into as part of the compensation payable to such individual for past or future services to the Company, (ii) is not calculated based on the number of securities tendered or to be tendered by such individual, and (iii) is not, and is not intended to be, consideration for any securities owned by such individual;

RESOLVED FURTHER, that the Committee approves each such arrangement.

Annotation. This is the best price rule's safe harbor. Adopt it deliberately, by independent directors, before the arrangements are entered into, and describe the arrangements specifically rather than by category. Then disclose them in the 14D-9 in tabular form.

Tool 7 — Merger agreement provisions for a Section 251(h) two-step

Commencement. As promptly as practicable and in any event within [ten] Business Days after the date hereof, Purchaser shall commence the Offer.

Offer Conditions. The Offer shall be subject only to the Offer Conditions set forth on Annex I and to no other conditions.

Extensions. Purchaser (i) shall extend the Offer for successive periods of up to [ten] Business Days if any Offer Condition is not satisfied at a scheduled Expiration Time, and (ii) shall extend for any period required by applicable law or the rules of the Commission; provided that Purchaser shall not be required to extend beyond the Outside Date.

No Amendment Without Consent. Purchaser shall not, without the Company's prior written consent, decrease the Offer Price, change the form of consideration, decrease the number of Shares sought, impose additional conditions, amend the Minimum Condition, or extend the Expiration Time except as required or permitted above.

Merger Without a Vote. The Merger shall be effected under Section 251(h) of the General Corporation Law as soon as practicable following the Acceptance Time, without a meeting or vote of the Company's stockholders. The parties agree that the Merger shall be effected on the same day as the Acceptance Time if practicable.

Top-Up Option. [Include only where Section 251(h) is unavailable.]

Structure Change. If the parties mutually determine that the Offer should be abandoned in favor of a one-step merger, they shall amend this Agreement accordingly, and the Company shall promptly prepare a proxy statement.

Annotations.

• The 251(h) recital must be express. Without it, the structure does not work.
• "Subject only to the Offer Conditions ... and to no other conditions" is the target's protection against a bidder inventing new conditions.
• The mandatory extension provision is heavily negotiated and matters most where regulatory clearance is slow.
• The structure-change provision is cheap insurance against a regulatory surprise stranding the deal in the wrong format.

Tool 8 — Rule 14e-3 information barrier memorandum

MEMORANDUM — Confidential To: All persons with knowledge of Project [__] Re: Trading restrictions

The Company is evaluating a possible tender offer. As a result, Rule 14e-3 under the Securities Exchange Act applies.

What the rule prohibits. Once a substantial step toward a tender offer has been taken, any person who possesses material non-public information relating to the offer, and who knows or has reason to know the information came from the bidder, the target, or anyone acting on their behalf, may not trade in the target's securities. Unlike ordinary insider trading law, no breach of any duty is required. Possession alone is enough.

The rule also prohibits communicating such information to any person under circumstances in which it is reasonably foreseeable that the communication is likely to result in trading.

What you must do.

1. Do not trade in securities of [Target] or [Bidder], or their derivatives, until notified.
2. Do not discuss this matter with anyone not on the distribution list, including family, colleagues, and friends.
3. Use the project name in all communications.
4. Notify [name] immediately if you believe anyone outside the list has learned of the matter.
5. Confirm receipt of this memorandum by reply.

Violations carry criminal and civil liability for the individual, and can jeopardize the transaction.

Annotation. Circulate this at the earliest substantial step — retaining a dealer-manager, arranging financing, or board authorization — not at commencement. Maintain the distribution list as the log of who knew and when.

Tool 9 — Document production timetable

Related documents

• Tender offers and the Williams Act: Schedule TO, the 14D-9, and the rules that govern a bid
• Running or responding to a tender offer: a practical guide
• Tender offer compliance checklist
• Proxy contest toolkit: advance notice bylaws, response plans, and solicitation materials
• Ownership reporting toolkit: filing calendars, group analyses, and Section 16 recovery demands