In a basic “further assurances” provision, the parties agree to take care of any paperwork required to complete transaction formalities that haven’t been completed by the time of the closing. The aim is primarily to prevent either party from refusing to sign a document required to transfer assets. That should be unobjectionable, but I see […]
The Case of the Elusive “Inclusion Rider”
During the Academy Awards show last Sunday, the “Best Actress” winner Frances McDormand unleashed on the world the phrase “inclusion rider.” That prompted a tsunami of chatter on the subject, including this by the Washington Post and this by Vanity Fair. But I was interested in the rider itself, not explanations. So I asked around, and […]
The Difference Between Selling Widgets and Buying Widgets
You’re general counsel of Widgetco, the world’s leading supplier of widgets. When anyone needs widgets, they come to you! But you’re also a big buyer of widgets. The primary raw material for widgets is … widgets! You have one contract template for selling widgets and another for buying widgets. How do they differ? Bear in mind […]
An Efficient Way to Link Statements of Fact to Termination Provisions
In recent consulting projects I’ve found myself revising client contracts that address issues as both statements of fact and grounds for termination, as in this made-up example: Widgetco states that the Widgets are in good working condition. Acme may terminate this agreement if the Widgets are not in good working condition. My book The Structure […]
I Respond to a Comment by Angela Swan of Aird & Berlis and Osgoode Hall Law School
I noticed that John Gillies’s review of the fourth edition of A Manual of Style for Contract Drafting (here) attracted a few comments, including this one by Angela Swan, counsel at the Toronto law firm Aird & Berlis and adjunct professor at Osgoode Hall Law School, York University: Adams is dead wrong in his views on […]
Glenn West on No-Third-Party-Beneficiary Provisions
I bring you glad tidings of a new post by Glenn West on Weil’s Global Private Equity Watch blog. It’s entitled On Naval Ramming Bows and Contractual Boilerplate—Are Standard “No Third-Party Beneficiary” Clauses Always a Good Thing? To whet your appetite, I present you the key bits: Glenn reminds us of the limited utility of no-third-party-beneficiary […]
OK, Let’s Try That Again: Revisiting My Severability Provision
[Updated 3 February 2017] On 30 January I rolled out in this post a new version of the introductory part of my severability language. That prompted me to look at the rest of it, and I realized that it didn’t work. For example, “then that provision will be modified”? Passive voice? Who’s the actor? And […]
Whistleblower Immunity: Supplementing in Accordance with the Defend Trade Secrets Act Contracts that Require Employees or Contractors to Keep Information Confidential
Because (@FlemingMF) posted on my blog way back in the early days, I’ve been in the habit of referring to him as “the ur-commenter.” But since I’m perhaps one of 227 people in this country familiar with use of ur– as a prefix, I’ve decided that “Commenter Zero” is a better moniker. Wear it with pride, […]
Revisiting How to Express Termination with Prior Notice
I love it when after writing about a usage and describing it as awkward, I’m able to demonstrate that it’s not only awkward, it can also lead to fights. Today’s example of that is my December 2015 post about how to express termination with prior notice (here). Today a reader emailed me as follows: Suppose a termination […]
The Latest from Glenn West on No-Reliance Language
Glenn West blogs. He has also grown a hipster beard and moved to Brooklyn. Actually, that last bit isn’t true. But he did recently contribute this post to Weil Gotshal’s Global Private Equity Watch blog. It’s about the recent decision of the Delaware Court of Chancery in FdG Logistics LLC v. A&R Logistics Holdings, Inc., to the […]