Going-Private Transactions: Deal Structure Considerations, SEC Disclosure Obligations, Fiduciary Duties and More

Description

Going-private transactions are significantly more challenging than other sale transactions as a result of complex SEC disclosure issues, additional legal requirements for public company transactions, developments in state law affecting directors’ discharge of their fiduciary duties, increased judicial scrutiny of independence of investment banks serving as financial advisors and law firms serving as legal advisors to special committees, and increased price-related exposure as a result of opportunistic funds buying rights to pursue appraisal proceedings in connection with these transactions.

The SEC recently initiated actions against corporate insiders for failure to comply with required SEC stock ownership disclosures in connection with a potential going-private transaction. In addition, the recent ruling in the appraisal proceeding related to the Dole Food Co. take private transaction prompts cautionary action by corporate boards and their advisors. Given the heightened SEC scrutiny and the likelihood for breach of fiduciary duty and other lawsuits, counsel must approach these transactions strategically and cautiously to avoid unintended consequences and increased litigation exposure.

Listen as our authoritative panel explains best practices for managing the legal and practical challenges of going-private transactions. The panel will discuss SEC mandatory disclosures, fiduciary duties, timing and structure of the transaction, as well as strategies to manage advisors to maintain their independence, to avoid increased litigation exposure, and more.