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Adams on Contract Drafting

Eliminating Incidental Information from the Introductory Clause

Posted on October 14, 2007 by Ken Adams

Last year I drafted the following introductory clause to a merger agreement: This merger agreement is dated March 23, 2006, and is between DARIUS TECHNOLOGIES, INC., a California corporation (“Parent”), SWORDFISH ACQUISITION, INC., a California corporation and a wholly-owned subsidiary of Parent (“Sub”), TROMBONE SOFTWARE, INC., a Delaware corporation (“Target”), and the stockholders of Target, … [Read more...]

Posted in Uncategorized 8 Comments

Another Instance of “Best” as Rhetorical Emphasis

Posted on October 14, 2007 by Ken Adams

You've been very kind to tolerate my vendetta against best efforts, or more specifically against the notion that a best efforts obligation requires a greater effort than a reasonable efforts obligation. But I'm not done yet. The foundation of my argument is the notion that the best in best efforts constitutes rhetorical emphasis. I discuss that in this post. And in this post I elaborate on how … [Read more...]

Posted in Uncategorized Leave a Comment

“Half” or “50%”?

Posted on October 14, 2007 by Ken Adams

Last week, 260 contracts filed on the SEC's EDGAR system include one or more references to 50%. By contrast, only 85 used the word half, and mostly in contexts where one couldn't have used 50%, as in references to "half-time basis" and "seven and one-half percent." I prefer half over 50%. Saying "50% of the shares" rather than "half the shares" is like saying "I ate 1.0 apples" rather than "I … [Read more...]

Posted in Uncategorized 2 Comments

“Frontloading”—A New Term is Unleashed on an Unsuspecting Planet

Posted on October 14, 2007 by Ken Adams

Way back in this August 2006 post I described how select information is often pulled out of the body of a commercial contract and placed at the top. In my post I expressed reservations about this practice, but the commenters set me straight. I referred to this practice as "the box," given that the abstracted information is often presented in tabular form. But as terms go, that one's rather … [Read more...]

Posted in Uncategorized Leave a Comment

How Do You Refer to a Time Zone if the Time in Question Could Occur on Any Day of the Year?

Posted on October 10, 2007 by Ken Adams

A few weeks ago David Munn of Fair Isaac Corporation sent me the following email: Your email below reminded me of a pet peeve of mine that I don't believe you've written about. You wrote "My class runs from 4:30PM to 6:30PM EST." Your usage is correct because you are referring to a time in November. However, I'm seeing more and more people using the acronyms PST, CST, EST, and GMT in emails, … [Read more...]

Posted in References to Time 4 Comments

How Not to Incorporate a Virtual Attachment, Part Deux

Posted on October 9, 2007 by Ken Adams

In this March 2007 post I discussed language to use, and language not to use, when making an ancillary document—including a web page—part of a contract without physically attaching it. (I subsequently invented the term “virtual attachment” to describe any such ancillary document.) What prompted that post was a case that held that saying that the contract at issue was "subject to" a virtual … [Read more...]

Posted in Uncategorized 1 Comment

MAC in the News Again

Posted on October 9, 2007 by Ken Adams

One of the consequences of my having written articles on "material adverse change" provisions is that I get calls from reporters asking for insightful observations about any MAC dispute that makes the news. This time, it's the lawsuit filed by Sallie Mae against a buyout group led by J.C. Flowers. Click here to see the WSJ Law Blog's item on this dispute. But the sad fact is that the utterly … [Read more...]

Posted in Uncategorized Leave a Comment

Don’t Use in Purpose Recitals the Phrase “In Accordance with this Agreement”

Posted on October 7, 2007 by Ken Adams

Consider the following purpose recital, plucked from an agreement filed last month on the SEC's EDGAR system: WHEREAS, in connection with the transactions contemplated by the Asset Purchase Agreement, Buyer desires that Seller Manufacture (as defined herein) and supply certain Products to Buyer, and Seller desires to Manufacture and supply such Products to Buyer in accordance with this … [Read more...]

Posted in Uncategorized Leave a Comment

My, Uh, Nine Favorite Law Blogs

Posted on October 7, 2007 by Ken Adams

On Minor Wisdom, Ray Ward listed this blog as one of his ten favorite law blogs. So did China Law Blog. It's great to have people acknowledge my efforts in this manner. But apparently I now have to share the luuurve by naming my own ten favorites. I used to be a chronic non-joiner, but evidently blogging has turned me into some kind of new-age, touch-feely type, because here I am, dutifully … [Read more...]

Posted in Uncategorized 3 Comments

“Only”

Posted on October 7, 2007 by Ken Adams

Here's what Garner's Modern American Usage has to say about only: Only is perhaps the most frequently misplaced of all English words. Its best placement is precisely before the words intended to be limited. The more words separating only from its correct position, the more awkward the sentence; and such a separation can lead to ambiguities. ... Yet the strong tendency in AmE is to stick only … [Read more...]

Posted in Uncategorized 1 Comment

“Party” as an Adjective

Posted on October 7, 2007 by Ken Adams

The following constructions using party are commonplace: Acme is a party to a confidentiality agreement with Widgetco dated October 7, 2007. Acme and Widgetco are parties to a confidentiality agreement dated October 7, 2007. In the above examples, party is used as a noun. I suggest that in this context it would be preferable to use it as an adjective. That would result in the same … [Read more...]

Posted in Uncategorized 2 Comments

IpVenture v. Prostar—Language of Performance or Language of Obligation?

Posted on October 1, 2007 by Ken Adams

Reader Mike told me about IpVenture, Inc. v. Prostar Computer, Inc. (Fed. Cir. Sept. 28, 2007). I'm delighted that he did, because it's yet another case that I can point to in making the argument that to control your drafting you need to clearly distinguish one category of contract language from another. IpVenture owns and licenses patents on inventions relating to management of personal … [Read more...]

Posted in Categories of Contract Language 12 Comments

More Fun with Language of Discretion—”Party X Hereby Grants Party Y the Right to [Verb]”

Posted on September 30, 2007 by Ken Adams

Yesterday was devoted to grading assignments submitted by students in my Penn Law contract-drafting course. One of them unintentionally made me aware of the formula Party X hereby grants Party Y the right to [verb]. It's language of performance functioning as language of discretion. If a contract contains the provision Acme may sell the Assets, it's appropriate for the reader to read that as … [Read more...]

Posted in Uncategorized 2 Comments

“Unless the Parties Agree Otherwise”

Posted on September 30, 2007 by Ken Adams

In grading student assignments, I found myself commenting on their use of unless the parties agree otherwise. I thought that I had already written something somewhere about this phrase, but evidently not. So here goes: As a general matter, the phrase unless the parties agree otherwise is redundant. The parties could agree to waive, amend, or delete any provision in a contract, whether or not … [Read more...]

Posted in Uncategorized 4 Comments

Two Oddities

Posted on September 30, 2007 by Ken Adams

I've resisted the temptation to turn this blog into a drafting freak show. But what the heck—step right up! ... In this article I offer plenty of mix-and-match efforts provisions, but the one immediately below nevertheless caught my eye as I was trawling through EDGAR today—three different efforts provisions in one! NNOG will use its best good faith reasonable efforts to cause NN to agree to … [Read more...]

Posted in Uncategorized Leave a Comment

Using a “Master Agreement” Structure

Posted on September 27, 2007 by Ken Adams

I've occasionally worked on transactions involving parties who plan on engaging in discrete projects from time to time. Generally these transactions have been structured so that one contract governs unchanging aspects of the relationship—perhaps payment, delivery, dispute resolution, and plenty of other matters—and a separate contract governs each project and specifies what needs to be done, when, … [Read more...]

Posted in Uncategorized 14 Comments

“Intentionally Omitted”

Posted on September 27, 2007 by Ken Adams

One of the participants at my recent Washington, D.C. seminar asked me about the notation "intentionally omitted." I love being asked about stuff I hadn't ever thought of writing about. "Intentionally omitted" is used in a contract to indicate when the text of an article, section, subsection, or enumerated clause has been omitted while leaving the enumeration of that unit intact. It's an … [Read more...]

Posted in Uncategorized 7 Comments

“May But Is Not Required To”

Posted on September 27, 2007 by Ken Adams

Reader Mike reminded me of the usage may but is not required to, as in the following provision: Indevus may, but is not required to, assist Esprit, at Esprit's election, in Esprit's efforts to seek and obtain FDA Approvals, subject to reimbursement of Indevus' related costs and expenses. The word that comes to mind is "lame"—may expresses discretion, so is not required to is redundant. Am I … [Read more...]

Posted in Uncategorized 5 Comments

IACCM Executive Workshop in Seattle on Monday, September 24th

Posted on September 20, 2007 by Ken Adams

If commercial contracts are your thing and on Monday morning you find yourself in the Seattle area with some time on your hands, you might want to consider attending a presentation by Tim Cummins, president and CEO of the International Association for Contract and Commercial Management (IACCM to its friends). The presentation is being hosted by Starbucks. You don't need to be an IACCM member to … [Read more...]

Posted in Uncategorized Leave a Comment

“Will Not Be Required To” as an Alternative to Conditions

Posted on September 20, 2007 by Ken Adams

I've already had occasion to consider the distinction between obligations and conditions. (Click here and here.) Well, here's another thought: If satisfaction of a condition would trigger an obligation on the part of another party, then instead of using a condition to express that concept you may want to use languagage of discretion using will not be required to. (For more about is not required … [Read more...]

Posted in Uncategorized 7 Comments

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In addition to Ken’s posts from February 2013, this blog contains Ken’s posts from The Koncise Drafter (from December 2010 to February 2013) and from the AdamsDrafting blog (from May 2006 to December 2010).

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