Appraisal Week Concludes: Contracting Out

Summary

The episode explores whether appraisal rights—statutory protections for dissenting shareholders—can be waived or limited through contractual mechanisms such as merger agreement clauses, corporate articles, or shareholder agreements, and how the answer varies between public and closely held corporations. It explains common deal‑making tools like appraisal‑rights closing conditions and representations that claim appraisal rights are unavailable, then delves into the legal limits of those tools. The host clarifies that while parties can structure transactions around appraisal, they cannot outright contract away a shareholder’s statutory right, especially in public companies, though tighter restrictions may be possible in closely held entities. Throughout, the discussion draws on corporate law principles and recent academic commentary to illustrate the nuanced balance between contractual freedom and statutory safeguards.