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Merger Agreement review

Plan and agreement of merger under DGCL §§ 251–259.

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What it checks

Material Adverse Effect (MAE) defined

SPA must define Material Adverse Effect — central allocation-of-risk concept (Akorn / Channel Medsystems).

Critical · MNA-015

Governing law and forum

SPA must include governing-law and forum-selection clauses.

Critical · MNA-019

Plan of merger / surviving corporation

Merger agreement must identify the surviving corporation and the plan of merger (DGCL § 251).

Critical · MNA-029

Merger consideration mechanics

Merger agreement must specify the consideration mechanics — per-share consideration, treatment of equity awards, exchange agent.

Critical · MNA-030

Appraisal rights notice (DGCL § 262)

Stockholders must be advised of appraisal rights under DGCL § 262.

Critical · MNA-031

Stockholder approval mechanism

Merger agreement must address required stockholder approvals (DGCL § 251(c)).

Critical · MNA-032

No-solicitation / fiduciary out covenant

Public-company / target-board merger agreements need fiduciary-out language permitting board to respond to superior proposals.

Warning · MNA-033

Termination fee / break-up fee

Merger agreements typically include a break-up fee for fiduciary-out / superior-proposal scenarios.

Warning · MNA-034

Drag-along / appraisal-waiver letter agreement reference

Private-target mergers often pair with a stockholder consent / drag-along enforcement.

Warning · MNA-035

Filing of certificate of merger (§ 251(c))

Merger agreement should contemplate filing the certificate of merger with the Delaware Secretary of State.

Critical · MNA-036

Treatment of options and RSUs at closing

Merger consideration must specify treatment of in-the-money / out-of-the-money options and RSUs.

Critical · MNA-037

Reverse vs forward / triangular structure stated

Merger structure (forward, reverse, reverse-triangular) should be explicit.

Critical · MNA-038

Every run also applies 123 general checks that belong to any agreement: structure, parties and signatures, defined terms, cross-references, dates, amounts, and one-sided terms.

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