Revisiting “To the Extent That”

MSCD 17.16 deals with the phrase to the extent that. It makes the simple point that although to the extent that is appropriate when the degree to which a provision applies depends on some variable, drafters often use to the extent that when if would be more appropriate. Here are three examples:

To the extent that [read If] an Award is intended to constitute qualified performance based compensation within the meaning of Section 162(m), the Performance Goals must be established within 90 days of the beginning of the Performance Period.

The Company may, to the extent [read if] permitted by law, deduct any such tax obligations from any payment of any kind otherwise due to a Participant.

All reimbursements and in-kind benefits provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A to the extent that [read if] such reimbursements or in-kind benefits are subject to Section 409A.

But that’s not what prompted this blog post. Instead, I revisited to the extent that (and to the extent plus adjective, as in to the extent permitted) because a participant at one of my Geneva “Drafting Clearer Contracts” seminars asked me about a variant, if and to the extent that. That phrase unhelpfully combines both conjunctions. Instead, use if or to the extent that, but not both:

… ; provided, however, that an allocation pursuant to this Section 10.2(a) will be made only if and to the extent that such Member would have an Adjusted Deficit Capital Account after all other allocations provided for in Section 10.2 have been tentatively made as if this Section 10.2(a) were not in this LLC Agreement.

provided, however , that, if applicable law so permits, indemnification may nevertheless be made by the Company in such event if and only to the extent that the Court which is considering the matter shall determine.

The same applies to the following variants:

The Executive shall have the status of general unsecured creditor of the Employer, and this Agreement constitutes a mere promise by the Employer to make payments under this Agreement in the future as and to the extent provided herein.

The failure to so notify the Company shall not relieve the Company of any obligation which it may have to Indemnitee under this Agreement or otherwise unless and only to the extent that such failure or delay actually and materially prejudices the Company.

While I’m at it, it’s pointless to add fullest or some variant to to the extent:

It is reasonable, prudent and necessary for the Company contractually to obligate itself to indemnify, and to advance expenses on behalf of, its directors and officers to the fullest extent permitted by applicable law so that they will serve or continue to serve the Company free from undue concern that they will not be so indemnified;

The provisions of this Agreement are severable, and if any part of it is found to be unlawful or unenforceable, the other provisions of this Agreement shall remain fully valid and enforceable to the maximum extent consistent with applicable law.

IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE PARTIES EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY.

It’s also pointless to add only or solely to to the extent (see also the example four examples above this one):

The Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder and solely to the extent the Company has been authorized to disclose the identity of such Person or Persons, the Person or Persons through or with whom such Subsequent Financing is proposed to be effected and shall include a term sheet or similar document relating thereto as an attachment.

And observe the following bit of nonsense rhetorical emphasis:

or (z) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party’s breach of any of the representations, warranties, covenants or agreements made by such Purchaser Party in this Agreement or in the other Transaction Documents.

As usual, all examples are from the U.S. Securities and Exchange Commission’s EDGAR system. They may be hazardous to your health.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.