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?
Because I still have to practice there, I will not identify my state, but our Secretary of State bounces documents for any reason or no reason. One lawyer told me they bounced his articles of incorporation for failing to state how many shares of stock were authorized — even though the articles clearly stated that it was a non-profit corporation, and the instructions clearly state not to complete that information if the corporation is not for profit. (You think?)
Under no circumstances would I trust the Secretary of State to figure out that a plan of merger was a plan of merger if the title did not call it a plan of merger. Even then, I would expect no better than a 60% chance of successful filing.
Do not take this as a political comment; the current Secretary of State is of one party and the staff was no more competent under the two preceding office holders, who were from the other party.
Jack: If not including “plan of merger” in the title risks creating a problem in any jurisdiction, it would make sense to include it. We can’t expect the world to be entirely rational. Ken