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Public Company M&A: Transaction Structures, Securities Compliance, Avoiding Shareholder Litigation

One-Step vs. Two-Step Mergers, Conducting Tender/Exchange Offers, Regulatory Hurdles

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

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Conducted on Wednesday, July 26, 2023

Recorded event now available

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This CLE webinar will examine the different approaches that can be taken in acquiring or merging with a U.S. public company and certain fundamental elements of a public company deal. The panel will also discuss the issues that can give rise to shareholder actions opposing a proposed merger and how to mitigate against such claims.


Acquiring a public company, whether by a private equity sponsor or another public company, involves a number of deal points and legal considerations, including disclosure issues under federal securities law and fiduciary duty issues under applicable state law. Getting a public company deal done therefore requires careful planning on the process and thoughtful consideration on the deal terms.

A negotiated acquisition of a public company typically is structured as a "one-step" statutory merger governed by the law of the state in which the target company is organized, or a "two-step" merger, comprised of a tender or exchange offer followed by a "back end" statutory merger.

A prospective acquirer can elect to build a stake in the target company's shares prior to commencing discussions with the target, but a party that acquires more than five percent equity with a view toward pursuing an acquisition must make a public filing with the SEC on Schedule 13D.

Acquisitions of U.S. public companies can result in shareholder actions in the form of "strike suits," which attack flaws in the sale process and/or the disclosures regarding the transaction, and appraisal actions in which shareholders demand a judicial determination of the "fair value" of their shares. Care should be taken at each step of the merger process to mitigate the risk of shareholder suits.

Listen as our authoritative panel discusses structuring and regulatory issues associated with public company M&A and how to anticipate and respond to shareholder litigation opposing a proposed merger.



  1. Introduction
    1. Unique aspects of public company merger relative to a private company acquisition
    2. Latest trends in public company acquisitions
  2. Transaction structures
    1. One-step merger
    2. Two-step: tender offer or exchange offer followed by a "back-end" merger
    3. Associated timeline and deal terms for each structure
    4. Deciding on the approach to take
  3. Disclosure requirements
    1. Leaks and premature disclosures
    2. Stake-building consideration
    3. Timing for the announcement and customary deal rollout communications
    4. Pre-commencement filings
    5. Proxy statement versus tender offer disclosure requirements
    6. Key substantive disclosure requirements
    7. Stock deal disclosure requirements
  4. Shareholder litigation
    1. Strike suits--areas of focus in the process
    2. Appraisal actions--Delaware notice and other statutory conditions; recent case law
    3. Responding to shareholder claims


The panel will review these and other relevant issues:

  • What are the securities disclosure requirements associated with a one-step merger? A two-step merger?
  • How does state law figure into the merger process? What are the particular requirements in Delaware?
  • What are best practices for conducting a tender or exchange offer to avoid any delays in the transaction?
  • What are the most common shareholder actions that are brought in opposition to a proposed merger?


Hu, James J.
James J. Hu

White & Case

Mr. Hu is a first-chair M&A lawyer who counsels investors, boards of directors, senior executives and founders on...  |  Read More

Mills, Phillip
Phillip R. Mills

Davis Polk & Wardwell

Mr. Mills practices in the firm’s Mergers and Acquisitions Group, advising on domestic and cross-border...  |  Read More

Seifried, Kyle
Kyle T. Seifried

Paul Weiss Rifkind Wharton & Garrison

Mr. Seifried’s practice focuses on public and private company acquisitions and divestitures, leveraged buyouts,...  |  Read More

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