Corporate & Securities Law

Including ?Plan of Merger? in the Title of a Merger Agreement

By Ken Adams

Here’s another fresh extract from the manuscript of MSCD2. It’s from the section “The Title,” and it addresses at greater length something I mention in MSCD 2.3:

And don?t feel obligated to track the terminology of state statutes. For example, statutes in Nevada, New York, and other states use the term ?plan of merger.? As a result, it?s commonplace for drafters to give merger agreements a title that includes, in some manner, the phrase ?plan of merger.? But if you were to file in Nevada articles of merger that are accompanied by, or refer to, a merger agreement bearing the title MERGER AGREEMENT rather than, say, the more cumbersome AGREEMENT AND PLAN OF MERGER, the Nevada Secretary of State wouldn?t reject the articles of merger for using improper terminology?they?re sensibly enough of the view that if a merger agreement contains the information that the statute requires be included in a plan of merger, it doesn?t matter what the agreement?s called. The same would apply with respect to a certificate of merger filed in New York, and it?s appropriate to assume that other states would be equally rational.

Similarly, don?t let use of the term ?plan of exchange? in state statutes governing share exchanges dissuade you from using the title SHARE EXCHANGE AGREEMENT rather than SHARE EXCHANGE AGREEMENT AND PLAN OF EXCHANGE or something similar.

I checked this with offices of the Nevada Secretary of State and the New York Secretary of State, and I thank them for handling with a straight face what they must have thought was a particularly pointy-headed inquiry.

Does anyone want to take issue with my recommendations? In particular, has anyone ever had a filing bounced because the contract title didn’t contain magic words?

Full post as published by AdamsDrafting on January 11, 2008 (boomark / email).