Counsel for the move off the public markets, covering sponsor and management buyouts, controlling-stockholder transactions, and the special-committee process and disclosure that carry a public company cleanly into private hands.
Delaware will review a controller's going-private deal under the business judgment rule on one condition, fixed before price is discussed: approval by a committee of disinterested directors with its own advisers, and an informed, uncoerced majority of the votes cast by disinterested stockholders. Drop either protection and the deal is tried for entire fairness, with the burden on the buyer.
The rule came from the Delaware Supreme Court's MFW decision in 2014 and was written into Section 144 of the General Corporation Law in 2025. It dictates the sequence. The committee is empaneled before anyone talks price. The minority vote is a condition of the merger agreement, not a courtesy. The Schedule 13E-3 states whether the filer believes the price is fair to unaffiliated holders, and the record must support the answer.
We act for sponsors, management groups and controlling stockholders, and for the committees across the table from them. The back end is designed at the front: a Section 251(h) merger that closes without a second vote once the tender offer clears its threshold, and appraisal exposure measured before the price is set.
Structuring and negotiating private equity take-privates and management-led buyouts, including equity and rollover arrangements, management incentive plans, and the alignment between sponsor, management, and the company being acquired.
Advising independent special committees and conflicted boards on a defensible process, from adviser selection, mandate, and bargaining posture to the documented record that shapes the standard of review on any later challenge.
Drafting and negotiating the merger agreement, with its deal protections, financing and closing conditions, go-shop and fiduciary-out provisions, and the consideration mechanics that govern what stockholders receive.
Preparing the Schedule 13E-3 and proxy or tender disclosure for going-private transactions, including the fairness statement and its factual basis, for matters before the SEC.
Executing the tender offer or first-step merger and the back-end squeeze-out that eliminates the remaining public shares, structured to reach full ownership while honoring statutory appraisal and minority protections.
Coordinating debt and equity financing, fairness opinions, and, where a target is incorporated or listed abroad, local delisting and takeover-code requirements with locally admitted counsel.
Since 2025, Delaware's statute treats a stockholder with one-third of the voting power and managerial authority as a controller, not only a majority holder. A sponsor rolling management's equity, or a founder with a large block and the chief executive's chair, should assume the controller rules apply to the deal.
An independent committee with its own advisers, genuine bargaining power, and a non-coerced majority-of-the-minority vote can shift the standard of judicial review and protect a board's decision.
When Rule 13e-3 applies, the filer must say the transaction is fair to unaffiliated stockholders and show the basis for it, a disclosure standard well above an ordinary merger proxy.
For listed stock, Delaware appraisal is unavailable unless the dissenting shares exceed one percent of the class or their merger consideration exceeds $1 million. The surviving company may prepay any amount before judgment, and statutory interest then runs only on the difference, which takes the arbitrage out of the remedy.
In most sponsor deals the target's remedy if the debt fails to fund is a reverse termination fee, and a clause written for the lenders bars the target from suing them directly. Specific performance of the sponsor's equity commitment, and the marketing period the lenders are given to syndicate, are negotiated against that cap.
A UK company is taken private by a scheme of arrangement, which needs 75 percent in value of the shareholders who vote, or by an offer that reaches 90 percent before dissenters can be squeezed out. A foreign private issuer whose US holders are at or below ten percent can fall outside Rule 13e-3 altogether.
A sponsor, management group, or controlling stockholder surfaces its proposal, and the target's board must immediately decide who is conflicted and who decides. The special committee is empaneled, mandated, and armed with its own bankers and counsel before a single term is negotiated.
The committee negotiates price, deal protections, go-shop rights, and financing certainty as a true adversary, with every meeting minuted and every counter documented. The record built here determines the standard of review if the deal is challenged after closing.
The Schedule 13E-3 and proxy or tender materials go to the SEC, including the fairness statement to unaffiliated stockholders and its factual basis. The transaction is then put to the holders being cashed out, in the uncoerced minority vote or tender the structure exists to earn.
The back-end merger eliminates the remaining public shares, appraisal rights are honored for dissenters, the equity and debt financing funds, and the registration is terminated. The company leaves the public markets with clean title to every share.
In a take-private, the price persuades the stockholders and the process persuades the court.
A take-private, or going-private, transaction is one in which a public company is acquired, typically by a private equity sponsor, a management group, or a controlling stockholder, and its shares cease to be publicly traded. The result is a private company with a concentrated ownership base, freed from the disclosure and market obligations of a listed issuer but reached through a process that must protect the public stockholders being cashed out.
It depends on which chair we sit in. For a sponsor or controller, we structure the proposal so the Section 144 safe harbor is available from the first letter, negotiate the merger agreement and the debt and equity commitments, and prepare the Schedule 13E-3. For a special committee, we draft its mandate and bargaining authority, manage its advisers, and build the minute book that will be read if the deal is challenged. In either chair the work runs from the first approach through the back-end merger and the Form 15 that ends the company's reporting obligations.
Because the standard of review follows the process. A controller deal that is conditioned, before substantive economic negotiations begin, on approval by a committee of disinterested directors and on an informed, uncoerced vote of a majority of the disinterested stockholders is reviewed under the business judgment rule. One that adopts those protections late, or adopts only one of them, is reviewed for entire fairness, where the buyer must prove both a fair price and a fair process to a court that has the benefit of hindsight. The minute book the committee keeps is the first thing that court reads.
Rule 13e-3 reaches a purchase, tender offer or merger by an issuer or its affiliate that is reasonably likely to leave a class of equity held of record by fewer than 300 persons or delisted from an exchange. When it applies, the Schedule 13E-3 must state whether the filer reasonably believes the transaction is fair to unaffiliated stockholders and set out the factors behind that belief. It must also summarize and file as exhibits every report, opinion or appraisal from an outside party that materially relates to the deal, which means the bankers' board presentations become public. A sponsor acting alone is usually outside the rule; a sponsor partnered with management or an existing holder usually is not.
By one of two routes. In a one-step deal the stockholders vote on the merger and every share converts into the merger consideration at closing. In a two-step deal the buyer launches a tender offer for all the shares and, if it ends up holding at least the percentage that would have adopted the merger at a meeting, completes the back-end merger under Section 251(h) of the Delaware code without any vote at all. A holder that reaches 90 percent can use the short-form merger instead. Either way a holder who neither tendered nor voted in favor may demand appraisal, and the de minimis floor and the prepayment option decide how much that demand costs.
Yes, with locally admitted counsel on the foreign law. A UK target is usually taken private by a court-sanctioned scheme of arrangement, which requires a majority in number holding 75 percent in value of the shares voted, and the Takeover Code sets the timetable from the first announcement. Where the target is a foreign private issuer and US holders own ten percent or less of the shares, the Tier I exemption can take the deal outside Rule 13e-3, provided US holders are treated at least as well as everyone else. We run the US securities analysis from Chicago and coordinate the scheme or offer through the London office and the partner network.
Acquisitions and combinations that span jurisdictions, with the structuring, regulatory clearance, and coordination of local counsel that an international deal demands.
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Explore →Reviewed by Jonathan D. Herpy, Sr., Senior Partner · Last updated October 2026 · Educational overview · Not legal advice
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