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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

  • work Practice Area

    Commercial Law

Date & Time
  • event Date

    Wednesday, November 10, 2021

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    90 minutes

Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.

$347.00
CLE
ALL

This CLE course will discuss the disclosure obligations of directors and officers when obtaining shareholder consent to a private company merger. The panel will discuss the duty to notify shareholders, information that should be provided about a pending transaction, omissions that can be materially misleading, and disclosures that must be provided in connection with the appraisal rights notice.

Faculty

Andrew Kaplan
Partner
Gibson Dunn, LLP

Mr. Kaplan represents both public and private acquirers and targets in connection with mergers, acquisitions, and takeovers, both negotiated and contested. He also advises corporations and their boards of directors in connection with corporate governance and compliance matters, shareholder activism, takeover preparedness, and other corporate matters. He also represents various major investment banks as financial advisors in M&A transactions and hedge funds in their M&A and investment activities. Mr. Kaplan also has represented both issuers and underwriters in a variety of securities transactions.

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Daniela Stolman
Partner
Gibson Dunn, LLP

Ms. Stolman is a partner in Gibson Dunn’s Century City office and a member of the firm’s Private Equity, Mergers and Acquisitions, Capital Markets and Securities Regulation, and Corporate Governance practice groups.  She advises companies and private equity firms across a wide range of industries, focusing on public and private merger transactions, stock and asset sales, and public and private capital-raising transactions. She also advises public companies with respect to securities regulation and corporate governance matters, including periodic reporting and disclosure matters, Section 16, Rule 144, and insider trading. She has been named as a Rising Star by Southern California Super Lawyers since 2014. The Deal also named her a Rising Star, which recognizes new M&A partners who are ‘deemed by The Deal to be one of the most promising of 2019.’ She was named a 2019 Rising Star by Law360 for private equity. The list recognizes “attorneys under 40 whose legal accomplishments transcend their age.”

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Jonathan Whalen
Partner
Gibson Dunn, LLP

Mr. Whalen’s practice focuses on a wide range of corporate and securities transactions, including mergers and acquisitions, private equity investments, and public and private capital markets transactions. In 2018, D CEO magazine and the Association of Corporate Growth named him a finalist for the 2018 Dallas Dealmaker of the Year.

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Description

Communications between a company and its shareholders are subject to the fiduciary duties imposed on the board of directors and should be handled with care. Disclosure requirements commonly associated with public companies can also apply to private companies, particularly with proposed mergers.

The Delaware General Corporation (and comparable statutes in other states) allows a corporation to obtain stockholder approval of a proposed merger by written consent instead of a meeting. Still, it must notify the non-consenting stockholders of the action taken, the pricing associated with the transaction, the extent to which any directors or shareholders receive benefits different than those received by the common stockholders, and other material information. The board must also avoid omissions that would make the disclosure materially misleading.

An appraisal notice in effect asks stockholders to make an investment decision of whether to accept the terms of the merger or demand appraisal. Thus, the disclosure requirements associated with an appraisal notice are extensive and comparable to those deemed material under U.S. securities law. They will include the merger agreement, instructions for demanding an appraisal, financial statements, a description of the company's business and prospects pre- and post-merger, and any conflicts of interest among directors or shareholders.

Listen as our authoritative panel discusses the disclosure obligations of directors and officers in connection with private company mergers and how they compare to public company disclosures in M&A deals.

Outline

  1. Background: procedural differences between public and private company mergers
  2. Obtaining shareholder approval in private company deals
    • Written consent in lieu of a meeting
    • Notice to non-consenting shareholders
    • Disclosure obligations: deal terms, conflicts of interest, other information deemed "material"
  3. Appraisal rights
    • Notice provided to non-consenting shareholders
    • Disclosure requirements

Benefits

The panel will review these and other critical issues:

  • What notice requirements are imposed on directors vis a vis shareholders in connection with a proposed merger?
  • What kinds of information must be provided to shareholders?
  • In formulating disclosures, how do directors and officers determine what is material?
  • What documentation should be included with an appraisal notice?