Going Private Transactions: Structures and Legal Implications

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