Tomfoolery with “100%”

Sports types invoke “100%” unusually often. (“Well, Dick, we’ve got to give it 100%!”) Mind you, if things are serious, 100% might not be enough! For some reason, 110% became an accepted figure, but even that’s sometimes eclipsed, as noted in this 2005 article from ESPN.com.

Well, some contract drafters are also fond of “100%”, in that they use it when you’d expect to see “all” or something comparable.

Here are some examples from EDGAR:

Any Legal advice and or litigation will be paid for 100% by the Company [read The Company shall pay all legal expenses] within 7 days of the time any bill for services has been presented.

… a Series A Warrant registered in the name of such Purchaser to purchase up to a number of Ordinary Shares equal to 100% of the [read the number of] Shares issuable to the Purchaser on the Closing Date

The SKM Shareholders own 100 shares of common stock, no par value, being 100% of the presently [read and those are the only SKM Shares currently] issued and outstanding SKM Shares;

WHEREAS, upon consummation of the transactions contemplated by this Agreement, Tonix will become a 100% wholly-owned subsidiary of Pubco;

… the obligations with respect to the Loans are secured by an amount of Cash and Cash Equivalents in an amount not less than 100% of the principal amount thereof plus interest to accrue through the end of the Special Arrangement Period …

No ICD employees will devote 100% of all their effort or time to the research and development activities under this CRADA.

Executive shall be one hundred percent (100%) [read fully] vested in any time-based phantom unit awards and shall be one hundred percent (100%) [read fully] vested in any performance-based phantom unit awards;

… an Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% [read fully] covered by the Commitments of the non-Defaulting Lenders …

Generally, “100%” makes sense only if you’re referring to a numerical value and the same provision also cites a different percentage:

… Executive shall be eligible for an annual award under the Company Omnibus Plan (or any successor thereto) (the “Annual Award “), with a target award date value of 100% of Executive’s Base Salary (the ” Target Annual Award “) and a maximum award value of up to 150% of Executive’s Base Salary, subject to

Notwithstanding the foregoing, Options may be granted with a per Share exercise price of less than 100% (or 110%, if clause (i)(A) above applies) of the Fair Market Value per Share on the date of grant pursuant to a merger or other comparable corporate transaction.

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.