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Going Private Transactions: Structures and Legal Implications
Going Private Transactions: Structures and Legal Implications analyzes going private transactions from legal, financial and procedural perspectives, offering practical guidance for business and corporate law professionals.
Publisher: Matthew Bender
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Going Private Transactions: Structures and Legal Implications delivers in-depth, practical analysis for legal and financial professionals managing or advising on going private deals.
Designed for attorneys, in-house counsel and compliance officers, this title walks through each phase of the transaction, blending legal insight with actionable strategy.
It starts with foundational concepts, outlining key definitions, benefits and risks for issuers and shareholders. Transaction structures—such as mergers, two-step deals with tender offers and reverse stock splits—are explained with attention to financing options and tax issues.
The book outlines essential preparatory steps including forming special committees, hiring legal and financial advisors and obtaining fairness opinions. It also examines federal securities laws and SEC rules affecting these deals, with discussion of enforcement activity and private rights of action under the Exchange Act.
Chapters on fiduciary duties and appraisal rights focus heavily on Delaware law, addressing how courts evaluate breach claims and interpret safe harbor protections. Real-world case examples provide additional context, helping readers understand how doctrine translates into litigation outcomes.
This annually updated treatise ensures legal professionals stay current on regulatory shifts, evolving case law and best practices for structuring and defending going private transactions.
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Chapter 1 Overview of Going Private Transactions
§ 1.01 Scope and Purpose of the Book
§ 1.02 The SEC’s Definition of Going Private Transactions
§ 1.03 Distinguishing Certain Transactions
§ 1.04 Advantages and Disadvantages of Going Private Transactions to Issuers
and its Affiliates
§ 1.05 Risks for Non-Affiliated Shareholders
Chapter 2 Structuring Going Private Transactions
§ 2.01 Overview of Structuring Going Private Transactions
§ 2.02 Going Private by Merger
§ 2.03 Going Private by Two-Step Merger with Tender Offer
§ 2.04 Going Private by Reverse Stock Split
§ 2.05 Financing Going Private Transactions
§ 2.06 Tax Considerations and Going Private Transactions
Chapter 3 Preparing for a Going Private Transaction
§ 3.01 The Formal Written Proposal
§ 3.02 The Special Committee
§ 3.03 Special Committee Engaging Legal Counsel
§ 3.04 Special Committee Engaging Investment Bankers and Other Financial
Advisors
§ 3.05 Conditioning the Transaction on a Majority-of-the-Minority Vote
§ 3.06 The Fairness Opinions
§ 3.07 Valuation Methodologies in Going Private Transactions
Chapter 4 Federal Securities Laws and Regulations and SEC Enforcement in
the Going Private Context
§ 4.01 Overview of Federal Securities Laws and Regulations and SEC
Enforcement in the Going Private Context
§ 4.02 Exchange Act § 13(e) and Rule 13e-3—Going Private Transactions
§ 4.03 Exchange Act § 13(d) and Regulation 13D-G—Beneficial Ownership
Reporting
§ 4.04 Exchange Act § 14(a) and Regulation 14A—Solicitation of Proxies
§ 4.05 Exchange Act § 14(d) and Regulation 14D—Tender Offers
§ 4.06 Regulations Governing Delisting and Deregistration—Form 25 and Form
15
§ 4.07 Regulations Governing Periodic Reporting—Form 8-K
§ 4.08 SEC Enforcement
Chapter 5 Private Enforcement of Federal Securities Laws in the Going Private
Context
§ 5.01 Overview of Private Enforcement of Federal Securities Laws in the
Going Private Context
§ 5.02 Express Private Right of Action Under Section 18(a)
§ 5.03 Implied Private Right of Action Under Section 13(e) and Rule 13e-3
§ 5.04 Private Right of Action Under Section 13(d) and Regulation 13D-G
§ 5.05 Private Right of Action Under Section 14(a) and Regulation 14A
§ 5.06 Private Right of Action Under Section 14(e)
§ 5.07 Private Right of Action Under Section 10(b) and Regulation 10b-5
Chapter 6 Fiduciary Matters in Going Private Transactions
§ 6.01 A Brief Overview of Fiduciary Duties
§ 6.02 Fiduciary Duty of Care
§ 6.03 Fiduciary Duty of Loyalty
§ 6.04 How Courts Analyze Breach of Fiduciary Duty Lawsuits
§ 6.05 The New Delaware Safe Harbor for Going Private Transactions
§ 6.06 Example Cases
§ 6.07 The Complicated Case of Tender Offers
§ 6.08 Fiduciary Duties When the Going Private Company is a Master Limited
Partnership
Chapter 7 Appraisal Proceedings
§ 7.01 Overview
§ 7.02 Standing and Perfection of Appraisal Rights
§ 7.03 The Appraisal Proceeding is in the Nature of a Class Action
§ 7.04 The Burden of Proof
§ 7.05 The Court of Chancery Determines the Fair Value of the Shares
§ 7.06 The Market Out Exception
§ 7.07 The De Minimis Exception
§ 7.08 Notice of the Right to an Appraisal
§ 7.09 Example Appraisal Cases in the Context of Going Private Transactions