Page 187 - מיזוגים ורכישת חברות - ברקלי תשפא

action.27 Where the only choice for the minority stockholders is whether to accept the
merger consideration or seek appraisal, they must be given all the factual information
that is material to that decision.28 The Court of Chancery carefully considered plaintiffs’
disclosure claims and applied settled law in rejecting them. We affirm this aspect of the
appeal on the basis of the trial court’s decision.

III. Conclusion
Based on the foregoing, we affirm the Court of Chancery and hold that plaintiffs’ only
remedy in connection with the short‐form merger of UXC into Unocal was appraisal.
Delaware Supreme Court Establishes Equitable Relief in Short Form Mergers

By Andrew J. Nussbaum, William Savitt, and Ryan A. McLeod*
The M&A Lawyer, July/August 2009, at 15

In a decision that could increase the litigation risk associated with short‐form
mergers under 8 Del. C. § 253, the Delaware Supreme Court has ruled that where there is
a breach of the duty of disclosure in connection with a short‐form merger, the appropriate
remedy is an automatic "quasi appraisal" action in which the minority shareholders may
adopt an "opt‐out" class approach and need not escrow any of the merger consideration
they have already received.1

Under Delaware’s short‐form merger statute, a parent corporation that owns at
least

27 See Malone v. Brincat, Del. Supr., 722 A.2d 5 (1998) (No stockholder action was requested, but
Court recognized that even in such a case, directors breach duty of loyalty and good faith by knowingly
disseminating false information to stockholders.

28 McMullin v. Beran, Del. Supr., 765 A.2d 910 (2000).
* Andrew J. Nussbaum is a partner in the corporate department, William Savitt is a partner in the
litigation department, and Ryan A. McLeod is a litigation associate at Wachtell, Lipton, Rosen & Katz.
1 Berger v. Pubco Corp., [976 A.2d 132 (Del. 2009) – E.K.].

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