I’ve long wondered how it has become standard for agreement and plan of merger to be the title for contracts that provide for a merger. (I’ll use merger agreement to refer to such contracts.) This article explains that it’s the result of confusion over how state corporation statutes are worded, with the result being amplified through copy-and-pasting.
But using agreement and plan of merger adds a needless wrinkle to the straightforward conventions for naming contracts. This article explains why you can instead give a merger agreement the simpler title merger agreement, with there being no realistic prospect of your merger filing being rejected by a state agency. It also suggests legislative-drafting fixes that would eliminate, or at least neutralize, the confusion.
A Widely Used Title
It appears the title agreement and plan of merger is now used much more often than the simpler title merger agreement. From my 24 April 2026 search of the U.S. Securities and Exchange Commission’s EDGAR database (via Westlaw), I determined that of all contracts filed on EDGAR in the previous 12 months, only 26 contain the phrase this merger agreement, whereas 562—21 times more—contain the phrase this agreement and plan of merger.
I’ve seen three variants: merger agreement and plan of merger, agreement of merger and plan of merger, and plan of merger and merger agreement. There might be others.
But agreement and plan of merger is a relative newcomer. Isolated instances appear in online databases in documents from the 1940s and 1950s. Many more examples are to be found in documents from the 1970s (in administrative materials) and 1980s (in caselaw) onward, but presumably that reflects the greater quantity of materials from recent decades that are available online.
“Plan of Merger” and “Agreement of Merger” in Corporation Statutes
Use of the title agreement and plan of merger is a function of state corporation statutes.
The Model Business Corporation Act (MBCA) uses the phrase plan of merger. That might be a carryover from earlier state corporation statutes. The influential New Jersey General Corporation Act of 7 April 1875 used plan of merger. (The phrasing of plan of merger, featuring plan modified by a prepositional phrase acting adjectively, now seems dated. Use of some comparable phrases has fallen off in favor of a version with a preceding attributive noun. For example, plan of study is now used far less often than study plan.)
States began adopting the MBCA soon after it was first promulgated by the American Bar Association in 1950. Thirty-six U.S. jurisdictions have now adopted the MBCA in whole or in part.
MBCA section 11.02(a) says “one or more domestic business corporations may merge with one or more domestic or foreign business corporations or eligible entities pursuant to a plan of merger, resulting in a survivor.” Section 11.02(d) says what information about the merger a plan of merger must include; it’s broad enough that “the terms and conditions of the merger” is one of the listed items. The MBCA doesn’t require parties to sign a plan of merger: Under section 11.04, it must be adopted by the board and approved by shareholders. And because of amendments to the MBCA, under section 11.06 a plan of merger need not be included with articles of merger filed with the state.
That approach—not requiring that the plan of merger be filed—is followed by a majority of states that have enacted statutes based on the MBCA. But Georgia, Kentucky, Minnesota, Nebraska, New Jersey, New Mexico, North Dakota, Rhode Island, South Carolina, Utah, and Virginia do require that the plan of merger be included in the articles of merger (also called a “certificate of merger,” depending on the state) filed with the relevant state agency.
Some states that haven’t enacted statutes based on the MBCA use the phrase plan of merger. Five others use agreement of merger instead: California, Delaware, Kansas, Ohio, and Oklahoma. (Like plan of merger, agreement of merger seems dated. And as in the case of plan of merger, use of some comparable phrases has fallen off in favor of a simpler version—witness the shift from agreement of sale to sale agreement.)
How Plans of Merger Relate to Merger Agreements
State corporation statutes that use the term plan of merger don’t also use the term merger agreement (or agreement of merger). So the statutes are silent regarding how plans of merger relate to merger agreements.
Some commentary considers plans of merger and merger agreements to be equivalent. For example, Practical Law’s glossary entry for plan of merger begins, “An agreement setting out steps of a merger of two or more entities,” even though the MBCA doesn’t in fact require plans of merger to be signed. Other commentary refers to both without suggesting they’re equivalent or offering any distinction.
The requirement that a plan of merger include “the terms and conditions” of the related merger could be understood as meaning that whatever the parties agree to regarding the merger must be included in the plan of merger. That leads some practitioners to treat the entire merger agreement as the plan of merger.
But others rely on a more limited plan of merger containing only key information and attach it as an exhibit to the merger agreement. (For an example of that approach, see section 2.01 of this merger agreement.) In states that require that the plan of merger be included in the articles of merger, the exhibit would be filed, not the merger agreement. See 18 John H. Matheson, Philip S. Garon & Michael A. Stanchfield, 18 Minnesota Practice Series: Corporation Law & Practice § 7:6 (3d ed., Jan. 2026 update). That has the benefit of limiting what a state agency must review, and it allows privately held companies to keep information confidential.
The Perceived Risk of Rejected Filings
But does including plan of merger in the title serve a useful purpose? If standard naming conventions applied, we’d give merger agreements the title merger agreement.
In the case of those states that require that articles of merger include the plan of merger, some lawyers have told me that if whatever contains the information that’s required in the plan of merger omits plan of merger from the title, you risk having your filing rejected. (An abbreviated plan of merger that’s an exhibit to the merger agreement wouldn’t pose that ostensible problem, assuming plan of merger appears in the title.)
A New Jersey resource refers to that risk:
If the acquisition agreement is used as the plan of merger, it is good practice to entitle it Plan and Agreement of Merger or Plan of Merger and Acquisition Agreement, or other words that include the words plan of merger, to avoid the risk of a filing clerk rejecting the certificate of merger because the clerk assumed the plan of merger was not included.
2 Jeffrey Shapiro, New Jersey Corporations & Other Business Entities § 14.06 (3d ed. 2025).
But what makes a plan of merger is the information it contains. It would be best to think of plan of merger not as a title but as a catchall term for merger information required by statute.
Thinking that omitting plan of merger from the title of a merger agreement could get a merger filing rejected relies on one of the defects that make up the legalistic mindset: literal-mindedness. You’re literal-minded if you think that to express the meaning conveyed by a term of art, you must use only that term of art. Literal-mindedness is inherent in the notion that a document can’t constitute a plan of merger unless plan of merger features in the title.
Virginia’s Experience
Let’s consider how this plays out in the case of Virginia, one of the states that require that articles of merger include the plan of merger.
The relevant statute, Virginia Code section 13.1-720, says articles of merger submitted for filing “shall set forth” the plan of merger. Because the plan of merger consists of specified information, there’s no reason to think that complying with the statute requires anything other than stating the relevant information, either in the filing or in an attached document. In particular, there’s no reason to think that the phrase plan of merger must appear in the title of a document.
I discussed this with a senior official of the relevant agency, the Virginia State Corporation Commission. They told me the Commission receives inquiries a couple of times a year from people wondering whether it rejects submissions that have “incorrect” titles, such as articles of merger that don’t include something with plan of merger in the title.
Although the Commission doesn’t provide advice on such questions, it is inclined to focus on the information that accompanies articles of merger rather than the label applied to that information. But if articles of merger include a merger agreement that doesn’t include plan of merger in the title, a Commission reviewer might delay approving articles of merger so they can check whether omission of plan of merger has any implications.
The Clerk’s Office of the Commission sometimes issues guidance on filing questions. They could conceivably do so to address this issue.
So the Virginia State Corporation Commission doesn’t have a policy of rejecting filings if the title omits plan of merger. Because I’ve found nothing to suggest that any of the other states that require filing the plan of merger has such a policy, I suspect that concern that a filing might be rejected is based on perceived risk, fueled by literal-mindedness, rather than actual risk.
Explaining Broader Use
So fear of filings being rejected is unconvincing as a reason for using plan of merger in the title of a merger agreement. Furthermore, that explanation applies only to states that require that articles of merger include the plan of merger. The title agreement and plan of merger is used in merger agreements involving other states, too. A different explanation is required to explain that use.
In the case of those MBCA states that don’t require that you file the plan of merger, one possible explanation for including plan of merger in the title is that those doing deals think it helpful to signal to those involved in a deal that the contract includes the information that by statute must be included in a plan of merger.
But the title agreement and plan of merger is routinely used as the title in merger agreements for mergers governed by state statutes that don’t use the phrase plan of merger. To pick just one high-profile example, the 2026 merger agreement for Paramount Skydance Corporation’s acquisition of Warner Bros. Discovery, Inc. provides for the merger of two Delaware corporations, and it uses the title agreement and plan of merger. Because the Delaware General Corporation Law uses the term agreement of merger, not plan of merger, there’s no basis under Delaware law for including plan of merger in the title of a merger agreement.
The likeliest explanation for this cross-contamination is copy-and-pasting. It’s easy to see how it happens: If someone is copy-and-pasting from a contract that contains something they’re unfamiliar with, they might be inclined to leave the unfamiliar part as is, either because they think it looks sophisticated or because they assume it serves some purpose they’re unaware of.
So economy of hypothesis suggests that agreement and plan of merger has become the preferred title for merger agreements by the following process: Due to lawyer literal-mindedness, some drafters elected to use agreement and plan of merger as the title, to acknowledge that the merger agreement isn’t just a merger agreement—it’s also a plan of merger! Then heedless copy-and-pasting kicks in, and here we are.
Besides being overblown, lawyers’ concern that filings might be rejected in states that require that you file the plan of merger is too limited, geographically, to explain the spread of agreement and plan of merger. If copy-and-pasting has resulted in agreement and plan of merger being used even though there’s no basis for it under Delaware law, we can assume that it has spread everywhere through copy-and-pasting.
Options for Those Doing Deals
At best, use of agreement and plan of merger as a title for merger agreements is an artifact of literal-mindedness. At worst, it’s applied without thinking. So it would be best if we stopped using agreement and plan of merger.
As things stand, in those states where the corporation statute doesn’t use the phrase plan of merger, it would make sense to use merger agreement as the title of a merger agreement: There’s no conceivable basis for including plan of merger in the title.
In those states where the merger statute uses the phrase plan of merger but doesn’t require that articles of merger include the plan of merger, you could safely use merger agreement as the title of your merger agreement because no state agency would have any say. But to resolve confusion over what function plan of merger serves, consider including a recital saying that the merger agreement, or an exhibit to the merger agreement, contains the information required in a plan of merger. For example, “This agreement contains [in sections A (heading), B (heading), and C (heading)] [in exhibit X] the information required for a plan of merger under [statute].” That’s more informative than just using plan of merger in the title.
This approach is already in use. A 2024 merger agreement says, in section 1.07, “This Article I [(The Merger)] and Article II [(Merger Consideration; Exchange of Certificates and Book-Entry Shares)] and, solely to the extent necessary under the MBCA, the other provisions of this Agreement shall constitute a ‘plan of merger’ for purposes of the MBCA (the ‘Plan of Merger’).” My version is simpler, and placing it in the recitals would make it appropriately accessible.
Even in those states where the merger statute uses the phrase plan of merger and requires that articles of merger include the plan of merger, you could justify using just merger agreement as the title of your merger agreement, given the lack of any evidence that state agencies reject filings that don’t use plan of merger in a title. And you could remove the risk of confusion, for anyone able to think rationally, by including in the merger agreement a recital of the sort mentioned above. By specifying what information is located where, such a recital would also make things easier for the agency checking for compliance with the corporation statute.
A Legislative Fix
But addressing the root cause of the process that has given us agreement and plan of merger—confusion over what constitutes a plan of merger—would require a legislative-drafting fix. That would best be accomplished by eliminating the phrase plan of merger from the MBCA by following Delaware’s approach, but using instead of agreement of merger the more modern merger agreement. That fix would require, among other amendments, changing plan of merger to merger agreement throughout the MBCA. But that’s unobjectionable: It wouldn’t impose a meaningful cognitive burden on those consulting the MBCA.
Another way to eliminate the confusion would be to amend the MBCA so it says that the phrase plan of merger describes a contract that contains the information required by statute.
In 2025, the Business Corporation Law of Alabama, an MBCA state, was amended to that effect. It now says this:
Except as set forth in Section 10A-2A-11.02(g), a plan of merger, whether referred to as a plan of merger, an agreement of merger, a merger agreement, a plan and agreement of merger, an agreement and plan of merger, or otherwise, means a writing described in Section 10A-2A-11.02 and includes any agreement, instrument, or other document referenced therein or associated therewith that sets forth the terms and conditions of the merger.
Ala. Code § 10A-2A-11.01 (LexisNexis 2026).
A Georgia statute achieves the same effect for purposes of limited liability companies:
Pursuant to a written agreement, which, unless otherwise provided therein, will constitute the plan of merger required by Code Section 14-11-902 if it contains the provisions required by that Code section, a limited liability company may merge with or into one or more business entities with such limited liability company or other business entity as the agreement shall provide being the surviving limited liability company or other business entity.
Ga. Code Ann. § 14-11-901 (West 2026).
Here’s my suggestion for achieving the same effect by adding to the definitions in MBCA section 11.01 the following:
“Plan of merger” includes a written contract that provides for a merger, whether or not the title of that contract uses the phrase “plan of merger.”
The MBCA says what a plan of merger must include, so by operation of the proposed definition, that requirement would apply also to a merger agreement, regardless of the title.
Defining plan of merger involves just one change. But instead of eliminating the confusion, it would leave it in place, while inserting an antidote for attentive readers to find. So it’s the less-effective option.
It might also be helpful to amend MBCA section 11.02(d) to make clearer what is meant by “the terms and conditions of the merger.” But because the MBCA no longer requires the plan of merger to be filed, any such amendment would have no bearing on meeting the requirements of a corporation statute by filing an exhibit to a merger agreement rather than the entire merger agreement. How that is handled would depend on the corporation statutes in the eleven states that still require that the plan of merger be included in articles of merger.
Breaking the Habit
The title agreement and plan of merger is now with us, and it’s not going away any time soon. Once something is in contracts, it tends to stay in there. After all, plenty of us still use witnesseth, even though it became a quaint fossil long ago.
So why aim to break the habit?
In swapping out agreement and plan of merger for a slightly shorter title, the aim wouldn’t be to make contracts marginally more concise. Instead, it would be to disrupt the factors that have fueled the spread of agreement and plan of merger: Confusion over how a plan of merger relates to a merger agreement. The triggering of literal-mindedness. And overenthusiastic copy-and-pasting.
Neutralizing that dysfunction might help remind us that our contract-language choices should make sense.
