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Did the merger agreement explicitly invoke 251(h)?
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Survivor: NO voting rights; NO appraisal.
Non-survivor: YES voting rights; Yes appraisal (unless market-out 262b)
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Survivor: YES voting rights; NO appraisal.
Non-survivor: YES voting rights; Yes appraisal (unless market-out 262b)
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YES
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NO
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YES
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Is the target a public company?
Did A make a tender offer for all outstanding shares of B and obtain enough to satisfy a 251(c) merger (51%)? Did the remaining shareholders who didn't tender into the offer get the same price for their stocks in the merger?
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NO
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Are you acquiring all or substantially all of the target's assets?
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NO
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Does the acquirer own more than 90% of the target's shares?
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Did the surviving corp’s outstanding increases by more than 20%, are the SH not retaining their shares or the charter needs to be changed?
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YES
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YES
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YES
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NO
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NO
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Acquirer (survivor) A: NO voting rights; NO appraisal rights.
Target (non-survivor) B: NO voting rights; YES appraisal rights (262(b)(3))
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NO
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Did the surviving corp’s outstanding increases by more than 20%, are the SH not retaining their shares or the charter needs to be changed?
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Did the surviving corp’s outstanding increases by more than 20%, are the SH not retaining their shares or the charter needs to be changed?
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Acquirer: NO voting rights; NO appraisal
Target: NO right rights; YES apprasal
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Are you doing a triangular merger?
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YES
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YES
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NO
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YES
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Acquirer (survivor) A: YES voting rights; NO appraisal rights. (251(f))
Target (non-survivor) B: NO voting rights; YES appraisal rights (262(b)(3))
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Acquirer: Yes voting rights (251(f)); NO appraisal.
Target: Yes voting rights; NO appraisals (unless provided by charter 261(c)).
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Acquirer: NO voting rights; NO appraisal.
Target: Yes voting rights; NO appraisals (unless provided by charter 261(c)).
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Did the surviving corp’s outstanding increases by more than 20%, are the SH not retaining their shares or the charter needs to be changed?
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YES
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NO
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Survivor: YES voting rights; NO appraisal
Non-survivor: YES voting rights; YES appraisal
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Survivor: NO voting rights; NO appraisal
Non-survivor: YES voting rights; YES appraisal
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Merger Rights
