Tender Offers and the New Streamlined Process for Deal Structuring

Navigating DGCL 251(h) and Timing Issues for Back-End Mergers

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

Conducted on Thursday, July 11, 2013

Recorded event now available

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Course Materials

This CLE course will provide an overview of Section 251(h) of the Delaware General Corporation Law, including the legal landscape prior to its adoption and the impact it is likely to have on deal structuring in the form proposed.


Section 251(h)'s intent is to streamline the process for completing a short-form back-end merger if a buyer acquires a majority of the outstanding stock of a target corporation after a first-step tender offer, so long as specific requirements are met. This may lead to an increase in the use of the tender offer.

Section 251(h) may become the preferred structuring method by providing a timing advantage over one-step mergers while preserving deal certainty. This may be useful for private equity and other acquirers using debt financing, who desire faster access to the target company’s assets to obtain secured financing.

Counsel to acquirers must understand how to effectively evaluate whether and how to use Section 251(h) tools in M&A deal structuring.

Listen as our panel of deal attorneys describes the adoption of Section 251(h) and the impact it is likely to have on M&A deal structuring, explains the pros and cons of using the streamlined process in M&A deals, and discusses questions raised by the language of Section 251(h) that will likely be resolved by the Delaware courts in the future.



  1. Timing issue of two-step tender offers, and how the market has attempted to address it
  2. An overview of new Section 251(h)
    1. Description of Section 251(h) and its adoption
    2. Likely impact of Section 251(h) on private equity sponsors and others using debt financing
  3. Important considerations related to the use of “two-step” merger structures


The panel will review these and other key questions:

  • What structuring problems does Section 251(h) address for deal counsel?
  • How did the market attempt to address these problems prior to adoption of the rule?
  • What impact is the rule likely to have on deal structuring going forward?
  • What key questions does the language of Section 251(h) raise for counsel?

Following the speaker presentations, you'll have an opportunity to get answers to your specific questions during the interactive Q&A.


Nicholas O'Keefe
Nicholas O'Keefe

Senior Counsel
Crowell & Moring

He has 18 years of corporate law and M&A experience and is Senior Counsel in the firm’s Corporate Group. His...  |  Read More

A. Thompson Bayliss
A. Thompson Bayliss

Abrams & Bayliss

Mr. Bayliss' practice concentrates on high stakes litigation involving Delaware corporations and other business...  |  Read More

Atif Azher
Atif Azher

Senior Associate
Simpson Thacher & Bartlett

He specializes in mergers and acquisitions, corporate and securities laws, and corporate governance. His practice...  |  Read More

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