De facto non-merger

A de facto non-merger occurs when a corporate transaction results in a merger, but when that merger was effectuated using non-merger methods such as asset acquisitions and redemptions. See Rauch v. RCA Corp., 861 F.2d 29 (2nd Cir. 1988).

A shareholder might claim that a transaction was a de facto non-merger to argue that certain non-merger provisions in the company's articles of incorporation should apply (such as special redemption rights), especially when those provisions might be more favorable to the shareholder than default statutory merger protection provisions (such as appraisal rights).

Statutory protections generally provided for in statutory mergers include (a) board initiation and approval, (b) shareholder approval, (c) appraisal remedies.

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De Facto Merger

A de facto non-merger is when the merger takes the form of a merger but in substance it is a non-merger. It is done to avoid some of the liabilities and responsibilities that go along with an asset sale or other non merger transactions. A shareholder will argue de facto non merger and claim that although the transaction took the form of a merger in actually the corporation wished to effectuate a transaction other than a merger and therefore the corporations owes the shareholders the rights they hold under those non merger requirements