We’ve covered before how drag-along provisions and other contractual provisions can involve the waiver of appraisal rights. Recent caselaw from Delaware has made it clear that in at least some instances, a contractual waiver of appraisal rights is enforceable.

In particular, the Authentix decision, discussed at length by various authors here (law firm), here (law firm), here (blog), and here (legal blog), held that at least in the circumstances in that case, involving sophisticated parties represented by counsel, where the parties were fully informed, and the agreement unambiguously waived appraisal rights, the contractual waiver would be enforced. The Court did not lay out which of these factors were necessary or sufficient.

Harvard Law’s Corporate Governance Blog notes that Authentix may be contrasted with a decision also from Delaware, In re Altor BioScience Corporation. There, an ambiguous provision that defendants contended waived appraisal rights (along with breach of fiduciary duty claims). The Court enforced the alleged waiver of the fiduciary duty claims, but did not find that the covenant not to sue barred appraisal claims. Notably, the Court held that without an express and affirmative waiver of appraisal rights, the waiver could not be enforced as appraisal is a statutory right.

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