Page 212 - מיזוגים ורכישות - פרופ' אהוד קמר תשפב

However, parties should be cautious in this area and always seek the advice of counsel,
because the types of post-merger relationships between a controlling stockholder and a
third-party buyer that will trigger Kahn v. Lynch and entire fairness review are extremely
fact-specific.

• Adherence to evolving best-practice procedures is crucial to bypassing
Delaware’s careful review of transactions involving controlling stockholders and obtaining
a more favorable standard of review. Companies should consider an appropriate deal
process (as opposed to acting in a reactive manner), and may include in that process
having a special committee negotiate with the third-party buyer separate from the
controlling stockholder; making sure the special committee has its own legal and financial
advisors who are independent and disinterested; and making sure that the committee is
appropriately empowered and recognizes its ability to reject an inadequate offer.

• Finally, good disclosure is always a part of good procedure. Appropriate
disclosure of potential conflicts of interest among those negotiating on behalf of the
minority stockholders, as well as other material information, should be made such that
minority stockholders are fully informed of all material information necessary to approve
or reject the proposed transaction.

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