Here’s what a reader said to me in an email: I’m frustrated. Even though I’ve been a lawyer for 21 years, my contract drafting skills are not what they should be for a lawyer with my experience. For example, I’m drafting a termination agreement for a consulting services agreement. A friend and I briefly discussed what should be in it. … Read More
Last week I did three gigs in three days. On Tuesday, at the request of cousin Joshua Stein, I did a one-hour presentation in New York as part of a seminar on real-estate financing. On Wednesday and Thursday, I did two day-long in-house “Drafting Clearer Contracts” seminars in the Bay Area. And at each of the three, I had … … Read More
A reader asked me about excluding without limitation. Yes, it’s a thing, unfortunately, or at least enough of a thing to prompt me to look into it. It occurs in 55 contracts filed on the SEC’s EDGAR system in the past year. I’ve included at the bottom of this post extracts from some of those contracts. I don’t understand excluding … Read More
I wrote about search-and-replace glitches in this 2015 post. Well, here’s another one: You might have noticed that I’ve been in an efforts frenzy. As part of reassessing my position on efforts, I searched on EDGAR for a bunch of efforts variants, including the unlikeliest ones I could think of. One of them was commercially efforts. Yeah, sounds crazy, but … Read More
It’s another wild night chez Adams. As you might have figured out, I’m reassessing the whole efforts thing. I just banged out the chart above, as a way of showing the main permutations of efforts provisions. It’s a wild world of efforts. The chart doesn’t even cover it all, as you can have the modifier following efforts, as in efforts in … Read More
In this post yesterday I offered a limited critique of Chief Justice Strine’s dissent in Williams Companies, Inc. v. Energy Transfer Equity, L.P. But one benefit of having a traditionalist contract-drafting notion rear its head periodically is that it forces me to keep refining my arguments. So in this post I explain in greater detail why it makes no sense to suggest that … Read More
In this post I indicate that I wasn’t convinced by a treatise saying that it “sounds as if” reasonable best efforts imposes more of an obligation than does commercially reasonable efforts. Here’s some background on that. I have a halfway decent ear for English usage, perhaps as a result of having grown up in a bookish family. It’s an important weapon in … Read More
I’ve long wrestled to articulate what I sensed was a distinction between two vague words, promptly and substantial. Here’s my latest attempt: Different vague words might pose different challenges. For example, in a given context the time constraints might be clear-cut enough so that there’s little room for dispute over what’s required for a party to act promptly. By contrast, … Read More
Well, here’s something I didn’t expect: that I would wade in again on efforts, and in a back-to-basics way. On 23 March, the Delaware Supreme Court issued its opinion in Williams Companies, Inc. v. Energy Transfer Equity, L.P. (here). I won’t mention the broader details of the opinion. Instead, I’ll limit myself to what it and some related discussion have to say … Read More
Behold the following: The Sponsor hereby represents and warrants to BNY Mellon, which representations and warranties shall be deemed to be continuing, that: … I’ve seen this provision in different kinds of contracts, notably lending agreements. But I haven’t found any commentary about it. And I don’t believe it’s mainstream in M&A. Here’s how a related concept is usually expressed in M&A … Read More
