Today’s issue of the New York Law Journal contains my article “Making Sense of ‘Shall.’” Click here to go to the PDF reprint. And click here to access it for free—at least for the time being—on the NYLJ’s website. My thanks to those who were kind enough to review drafts of this article. The topic of shall came up during … Read More
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, namely XYLER XAVIER, an individual … Read More
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 … Read More
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 … Read More
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 … Read More
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 … Read More
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 … Read More
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 agreement. Ignore … Read More
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 … Read More
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 … Read More
