Merger clause

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(i) Merger Clause; Amendment; Headings. This Agreement, together with the Severance Plan, constitutes the entire agreement of the Parties with respect to the subject matter hereof, supersedes and replaces all oral and written statements, conversations, and correspondence, and is intended by the Parties to be the final expression of their agreement on all terms and conditions set forth herein. This Agreement may only be modified, terminated or waived by a writing signed by the Party against whom enforcement of such modification, termination or waiver is sought. The captions and headings in this Agreement are for convenience only, and in no way define or describe the scope or content of any provision of this Agreement.

6. Merger Clause. Effective as of the date hereof, this Agreement contains the complete, full, and exclusive understanding of the Executive and the Company as to its subject matter and shall, on such date, and supersede any prior employment agreement between the Executive and the Company (and its affiliates). Any amendments to this Agreement shall be effective and binding on the Executive and the Company only if any such amendments are in writing and signed by both parties.

8. Merger Clause. The Parties represent and warrant that they have not been induced into signing this Settlement Agreement by any warranty, representation, promise, covenant or agreement made by or on behalf of any party or other party, other than is specifically set forth in this Settlement Agreement. The Parties represent that they have relied on the legal counsel of their respective attorneys, who are the attorneys of their own choice, and that the terms of this Settlement Agreement have been completely read and explained to them by their respective attorneys, and that those terms are fully understood and voluntarily accepted.

Section 8.1 Merger Clause. This Agreement and the other Transaction Documents constitute the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein and therein, and supersede all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements in the body of this Agreement and those in the other Transaction Documents, the Exhibits and Disclosure Schedules (other than an exception expressly set forth as such in the Disclosure Schedules), the statements in the body of this Agreement will control.

Section 5.04 Merger Clause. Effective as of the date hereof, this Agreement contains the complete, full, and exclusive understanding of Executive and the Company as to its subject matter and shall, on such date, and supersede any prior employment agreement between Executive and the Company (and its affiliates), including the Prior Agreement. Any amendments to this Agreement shall be effective and binding on Executive and the Company only if any such amendments are in writing and signed by both Parties.

Courts likewise routinely hold that a merger clause in the written draft of a settlement agreement “is persuasive evidence that the parties did not intend to be bound prior to the execution of a written agreement.” Ciaramella, 131 F.3d at 324; accord, e.g., Kaczmarcysk, 414 F. App’x at 355–56 (finding that the district court erred in enforcing a settlement agreement because the agreement contained a merger clause stating “[t]his Agreement contains and constitutes the entire understanding and agreement of the parties and supersedes all previous negotiations, agreements, commitments and writings in connection therewith”); Sprint

Commc’ns Co. L.P. v. Jasco Trading, Inc., 5 F. Supp. 3d 323, 334 (E.D.N.Y. 2014) (holding that the language of a written settlement agreement indicated there would be no binding agreement until the parties signed where the agreement contained a merger clause stating “[t]his Agreement expresses the entire agreement between the Parties with respect to the compromise if the claims described herein”); PDL Votari Corp. v. Olympus Indus. Inc., 718 F. Supp. 197, 207 (S.D.N.Y. 1989) (holding that the parties clearly expected their agreement would be reduced to a formal writing, as they sent drafts back and forth containing a merger clause stating the agreement contained the “exclusive agreement between the parties, superseding all prior agreements, understandings and negotiations”).

The law is clear with respect to this issue: language similar to section 3.1 has repeatedly been found to indicate that parties did not intend to be bound orally. See, e.g., Ciaramella, 131 F.3d at 324 (finding there was no binding agreement even though parties stated “we have a deal” where the draft agreement would not become effective until it was “signed by [all parties]”; that provision (and a merger clause) were a clear indication to the court that “the parties did not intend to bind themselves until the settlement had been signed” and were given “considerable weight . . . [to] avoid frustrating the clearly-expressed intentions of the parties”); Kaczmarcysk, 414 F. App’x at 355 (explaining that “wording in a settlement agreement that places great

Tipping the scale further, the Settlement Agreement contains a merger provision in section 3.11 stating that “[t]his Agreement constitutes the entire agreement and understanding among the parties hereto . . . and supersedes all prior proposals, negotiations, agreements, representations, and understandings between or among any of the Parties hereto relating to such subject matter.” (PX001 at 015.) The clause makes clear that the terms in the written Settlement Agreement were intended to replace any other oral agreement or discussion of terms between the parties prior to the execution of the Settlement Agreement. While the presence of a merger clause is not dispositive of the first Winston factor, courts have routinely held that it is “persuasive evidence that the parties did not intend to be bound prior to the execution of a written agreement.” Ciaramella, 131 F.3d at 324; see, e.g., Kaczmarcysk, 414 F. App’x at 355– 56 (finding that the district court erred in enforcing a settlement agreement because the agreement contained a merger clause stating “[t]his Agreement contains and constitutes the entire understanding and agreement of the parties and supersedes all previous negotiations, agreements, commitments and writings in connection therewith”). Granting the Motion would thus render provisions like 3.1 and merger clauses meaningless, thereby frustrating parties’ objective intent manifested in the plain language of their agreements.

Merger Clause: This Agreement contains the entire and only agreement between the Company and me regarding the subject matter of this Agreement. To the extent there are any restrictive covenants or confidentiality agreements which, by their terms or by operation of law, survive the termination of my employment, the obligations of this Agreement will supplement, but not replace, such agreements. Any oral or written promises or assurances related to the subject matter of this Agreement that are not contained in this Agreement are waived, abandoned, and withdrawn, and are without legal effect. I acknowledge that I have not relied on any representations, promises, or agreements of any kind made to me in connection with my decision to sign this Agreement, except for those set forth in this Agreement.

Section 5.04 Merger Clause. Except as provided in Section 2.04 herein, effective as of the Effective Date, this Agreement contains the complete, full, and exclusive understanding of Executive and the Company as to its subject matter and shall, on such date, and supersede any prior employment agreement between Executive and the Company (and its affiliates), including the Offer Letter. Any amendments to this Agreement shall be effective and binding on Executive and the Company only if any such amendments are in writing and signed by both Parties.

Section 5.04 Merger Clause. Effective as of the Effective Date, this Agreement contains the complete, full, and exclusive understanding of Executive and the Company as to its subject matter and shall, on such date, and supersede any prior employment agreement between Executive and the Company (and its affiliates). Any amendments to this Agreement shall be effective and binding on Executive and the Company only if any such amendments are in writing and signed by both Parties.

Section 5.04 Merger Clause. As of the Effective Date, this Agreement contains the complete, full, and exclusive understanding of Executive and the Company as to its subject matter and shall, on such date, replace and supersede any prior employment agreement between Executive and the Company (and its Affiliates), including, without limitation, the Prior Agreement, and all unrealized payments, rights, benefits, and entitlements set forth therein shall be relinquished, released and replaced as set forth in this Agreement. Any amendments to this Agreement shall be effective and binding on Executive and the Company only if any such amendments are in writing and signed by both Parties.

10. Merger Clause. Effective as of the Effective Date, this Agreement contains the complete, full, and exclusive understanding of Executive and the Company as to its subject matter and shall, on such date, and supersede any prior agreement between Executive and the Company regarding severance benefits. Any amendments to this Agreement shall be effective and binding on Executive and the Company only if any such amendments are in writing and signed by both Parties.

(r) Merger Clause. With respect to the rights, duties, obligations and liabilities of the Escrow Agent, this Escrow Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof, and supersedes any prior oral or written agreements in regard thereto. With respect to the parties hereto other than the Escrow Agent, except as set forth in the Merger Agreement, this Escrow Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof, and supersedes any prior oral or written agreements in regard thereto.

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