merger. 1. The act or an instance of combining or uniting. 2.Contracts. The substitution of a superior form of contract for an inferior form, as when a written contract supersedes all oral agreements and prior understandings. [Cases: Contracts 245. C.J.S. Contracts § 416.]
“Where two parties have made a simple contract for any purpose, and afterwards have entered into an identical engagement by deed, the simple contract is merged in the deed and becomes extinct. This extinction of a lesser in a higher security, like the extinction of a lesser in a greater interest in lands, is called merger.” William R. Anson, Principles of the Law of Contract 85 (Arthur L. Corbin ed., 3d Am. ed. 1919).
3.Contracts. The replacement of a contractual duty or of a duty to compensate with a new duty between the same parties, based on different operative facts, for the same performance or for a performance differing only in liquidating a duty that was previously unliquidated. 4.Property. The absorption of a lesser estate into a greater estate when both become the same person’s property. Cf. SURRENDER(3). [Cases: Estates in Property 10.C.J.S. Estates §§ 129, 152.]“[I]t would be absurd to allow a person to have two distinct estates, immediately expectant on each other, while one of them includes the time of both …. There would be an absolute incompatibility in a person filling, at the same time, the characters of tenant and reversioner in one and the same estate; and hence the reasonableness, and even necessity, of the doctrine of merger.” 3 James Kent, Commentaries on American Law *99 (George Comstock ed., 11th ed. 1866).
5.Criminal law. The absorption of a lesser included offense into a more serious offense when a person is charged with both crimes, so that the person is not subject to double jeopardy. • For example, a defendant cannot be convicted of both attempt (or solicitation) and the completed crime — though merger does not apply to conspiracy and the completed crime. — Also termed merger of offenses. [Cases: Criminal Law 30. C.J.S. Criminal Law §§ 14, 16–18.] 6.Civil procedure. The effect of a judgment for the plaintiff, which absorbs any claim that was the subject of the lawsuit into the judgment, so that the plaintiff’s rights are confined to enforcing the judgment. Cf. BAR(5). [Cases: Judgment 582. C.J.S. Judgments § 704.] 7. The joining of the procedural aspects of law and equity. 8.The absorption of one organization (esp. a corporation) that ceases to exist into another that retains its own name and identity and acquires the assets and liabilities of the former. • Corporate mergers must conform to statutory formalities and usu. must be approved by a majority of the outstanding shares. Cf. CONSOLIDATION(4); BUYOUT.
[Cases: Corporations 581. C.J.S. Corporations §§ 792–797.]
bust-up merger.A merger in which the acquiring corporation sells off lines of business owned
by the target corporation to repay the loans used in the acquisition.
cash merger.A merger in which shareholders of the target company must accept cash for their shares. — Also termed cash-out merger; freeze-out merger. [Cases: Corporations 584. C.J.S.
Corporations §§ 799–801.]
conglomerate merger.A merger between unrelated businesses that are neither competitors nor
customers or suppliers of each other. [Cases: Monopolies 20(9). C.J.S. Monopolies §§ 110, 114.]
“A merger which is neither vertical nor horizontal is a conglomerate merger. A pure conglomerate merger is one in which there are no economic relationships between the acquiring and the acquired firm. Mixed conglomerate mergers involve horizontal or vertical relationships, such as the acquisition of a firm producing the same product as the acquirer but selling it in a different geographical market, which is not a horizontal merger because the merging companies are not competitors ….” 54 Am. Jur. 2d Monopolies, Restraints of Trade, and Unfair Trade Practices § 169, at 226 (1996).
de facto merger (di fak-toh). A transaction that has the economic effect of a statutory merger but that is cast in the form of an acquisition or sale of assets or voting stock. • Although such a transaction does not meet the statutory requirements for a merger, a court will generally treat it as a statutory merger for purposes of the appraisal remedy. [Cases: Corporations 445.1. C.J.S.
Corporations § 657.] downstream merger.A merger of a parent corporation into its subsidiary. forward triangular merger.See triangular merger. freeze-out merger.See cash merger.
horizontal merger.A merger between two or more businesses that are on the same market level because they manufacture similar products in the same geographic region; a merger of direct competitors. — Also termed horizontal integration.
product-extension merger.A merger in which the products of the acquired company are complementary to those of the acquiring company and may be produced with similar facilities, marketed through the same channels, and advertised by the same media.
reverse triangular merger.A merger in which the acquiring corporation’s subsidiary is
absorbed into the target corporation, which becomes a new subsidiary of the acquiring corporation.
— Also termed reverse subsidiary merger.
short-form merger.A statutory merger that is less expensive and time-consuming than an ordinary statutory merger, usu. permitted when a subsidiary merges into a parent that already owns most of the subsidiary’s shares. • Such a merger is generally accomplished when the parent adopts a merger resolution, mails a copy of the plan to the subsidiary’s record shareholders, and files the executed articles of merger with the secretary of state, who issues a certificate of merger.
statutory merger.A merger provided by and conducted according to statutory requirements. stock merger.A merger involving one company’s purchase of another company’s capital stock.
triangular merger.A merger in which the target corporation is absorbed into the acquiring corporation’s subsidiary, with the target’s shareholders receiving stock in the parent corporation. — Also termed subsidiary merger; forward triangular merger.
upstream merger.A merger of a subsidiary corporation into its parent.
vertical merger.A merger between businesses occupying different levels of operation for the
same product, such as between a manufacturer and a retailer; a merger of buyer and seller.
9. The merger of rights and duties in the same person, resulting in the extinction of obligations; esp. the blending of the rights of a creditor and debtor, resulting in the extinguishment of the creditor’s right to collect the debt. • As originally developed in Roman law, a merger resulted from the marriage of a debtor and creditor, or when a debtor became the creditor’s heir. — Also termed confusion; confusion of debts; confusion of rights. Cf. CONFUSION OF TITLES. 10.The absorption of a contract into a court order, so that an agreement between the parties (often a marital agreement incident to a divorce or separation) loses its separate identity as an enforceable contract when it is incorporated into a court order.
[Blacks Law 8th]