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Shareholder Disclosure Issues in M&A Transactions: Notice and Appraisal Rights, Materiality, Conflicts, Omissions

Recording of a 90-minute premium CLE video webinar with Q&A

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Conducted on Wednesday, November 10, 2021

Recorded event now available

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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.


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.



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


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?


Kaplan, Andrew
Andrew Kaplan

Gibson Dunn

Mr. Kaplan represents both public and private acquirers and targets in connection with mergers, acquisitions, and...  |  Read More

Stolman, Daniela
Daniela Stolman

Gibson Dunn

Ms. Stolman is a partner in Gibson Dunn’s Century City office and a member of the firm’s Private Equity,...  |  Read More

Whalen, Jonathan
Jonathan Whalen

Gibson Dunn

Mr. Whalen’s practice focuses on a wide range of corporate and securities transactions, including mergers and...  |  Read More

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