This week I had the pleasure of giving two in-house “Drafting Clearer Contracts” seminars in Doha, Qatar. As often happens, I came away with with a new issue to explore.
In particular, one of the participants asked me what I thought of use in contracts of the adverb continuously. He didn’t think much of it. And now I can say that neither do I.
That’s because unless you specify otherwise, a provision will apply continuously. Consider the following examples from the great boneyard that is the SEC’s EDGAR system. In each case, I’d omit the word continuously, as being redundant. (Note that in the first two of the six examples below, continuously modifies an adjective; in the rest, it modifies a verb.)
Subject to the terms of this Agreement, the Company … shall use its reasonable best efforts to keep such Registration Statement, with respect to each Holder,
continuouslyeffective under the Securities Act until the earlier to occur of …As used herein, the term “Electronic Prospectus” means a form of prospectus, and any amendment or supplement thereto, that meets each of the following conditions: … (iii) it shall be in or convertible into a paper format or an electronic format, satisfactory to the Representative, that will allow recipients thereof to store and have
continuouslyready access to the prospectus at any future time, without charge to such recipients …At all times after the Company has filed a registration statement with the SEC pursuant to the requirements of the Securities Act and until the Termination Date, the Company shall use reasonable best efforts to
continuouslymaintain in effect the registration statement of Common Stock under Section 12 of the Exchange Act …The Adviser shall …
continuouslyfurnish an investment program, …“Cash Equivalents” means … (e) shares of any money market mutual fund that (i) has substantially all of its assets invested
continuouslyin the types of investments referred to in clauses (a) and (b) above, …The Borrower (and each applicable Credit Party) shall … (b) Without limiting the foregoing, with respect to each Eligible Ground Lease related to any Unencumbered Pool Property: … (v) diligently
and continuouslyenforce the material obligations of the ground lessor or other obligor thereunder; …
Another drawback with continuously is that it could be understood as suggesting nonstop, every-minute-of-the-day activity. That usually doesn’t make sense, as in the following examples:
… provided, however, if such default under this clause (iii) is reasonably susceptible of cure, but not within such thirty (30) day period, then such Issuer may be permitted an additional ninety (90) days to cure such default provided such Issuer diligently
and continuouslypursues such cure; …… the Advisor shall … (ii) supervise
continuouslythe investment program of the Trust and the composition of its investment portfolio; …
But one can find examples where circumstances make it appropriate to emphasize that something is nonstop:
The net quantity, reported in cubic meters corrected to 15 deg.C and 101.325 kPa, and quality of Product delivered through the Meters shall be documented by meter tickets, which will be made available to both Parties electronically via a continuously “on” data link and by hard paper copy in no event later than twenty four (24) hours following the completion of a unit train loading at the Rail Terminal.
I suspect that even here, one could find a better word.
Necessarily, the adjective continuous shares the same shortcomings as continuously:
“Restricted Stock” means Common Stock granted pursuant to Section 9 that is subject to certain specified restrictions (including, without limitation, a requirement that the Participant remain
continuouslyemployed or providecontinuousservices for a specified period of time).
One exception is use of continuous in connection with the securities term of art continuous offering:
On or prior to the Filing Date, the Company shall prepare and file with the Commission the Initial Registration Statement covering the resale of all of the Registrable Securities for a resale offering to be made on a continuous basis.
Couldn’t the every-minute-of-the-day shade apply to the availability of the intended benefit of the promised performance, rather than to how or when the activity of performance must occur? In other words, might there a “continuously” difference between making an enabling facility, like an effective registration statement or a document copy, available promptly on demand as of right, on the one hand, and making it available immediately without need for per-use demand to or action by the responsible party, on the other?
I’d have thought you’d need to make that distinction explicit? I invite you to suggest language that would accomplish those purposes.
In the UK employment lawyers are well acquainted with the concept of ‘continuous employment’ which is a pre-requisite for many statutory rights.
There is a difference between two years continuous employment and two years employment. In the latter the employee could have worked
for 12 months had 6 months off and then worked for another 12 months resulting in him having been employed for two years but not continuously employed for two years.
The same distinction seems to apply to the ‘restricted stock’ example where the use of the word ‘continuous’ is needed to rule out the use of two or more periods which added together exceed the specified period of time?
Thank you for that example. As regards the definition of “Restricted Stock,” it’s very broad as is, I’m not sure my change would make a difference, but it’s hard to say.
Forgive my straying into another portion of the sample agreement…how do you feel about the starting line, “Subject to the terms of this Agreement…”? I run into that phrase frequently in boilerplates (especially before the license grants) and I am not sure it’s helpful. Isn’t a license grant subject to the prohibitions within that same agreement regardless of whether you use this explicit preface? And if you do include it, does including that in some sections and not others prejudice the sections where it is omitted? Appreciate your thoughts.
Many thanks in advance.