Corporate & Securities Law

When an Individual?s Address Doesn?t Work for Purposes of the Introductory Clause

Posted on April 14, 2008
I don’t include in the introductory clause the address of a party that’s a legal entity. That’s because the introductory clause serves to distinguish a given party from any other person or entity with that name. For a legal entity, that’s accomplished by giving its jurisdiction of organization or its registration number; you don’t also [...

44 Hours in Bahrain

Posted on April 14, 2008
I’m now home after a whirlwind visit to Bahrain. I arrived from Oman on Wednesday afternoon, did a seminar on Thursday, then left on Friday morning. The seminar was under the auspices of the ABA’s Rule of Law Initiative. My chaperones were James MacPherson and John Porter, who has just replaced James as the ABA?s resident [...

MSCD2?Update on Proofreading

Posted on April 08, 2008
Ah, the glamorous life of the contract nerd! Vancouver one week! Oman and Bahrain the next! Philadelphia in between! But more mundane work goes on: I spent my first day in Oman in my hotel room, working on the manuscript for MSCD2. Thanks to the valiant efforts of the all-volunteer AdamsDrafting proofreading irregulars, it’s in great [...

I Heart Canada

Posted on April 08, 2008
How do I love Canada? Let me count the ways: It was a Canadian organization?Osgoode Professional Developement?that asked me to do my first public seminar. Attendance at my seminars in the U.S. with West Legalworks can fluctuate wildly, but my Osgoode seminars in Toronto sell out...

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Greetings from Oman!

Posted on April 08, 2008
This post comes to you from Muscat, Oman. I’m here under the auspices of the Rule of Law Initiative of the American Bar Association, at the request of the Sultanate of Oman Ministry of Legal Affairs. Yesterday I held my “Language and Layout” seminar for a team of Ministry lawyers responsible for reviewing and drafting contracts [...

Tough Times a Spur to Clearer Drafting?

Posted on March 26, 2008
This from the Lex column in today’s Financial Times, regarding Bear Stearns and the Cerberus litigation: It is too simplistic to blame sloppy drafting for disputes. Still, there may be room for improvement in terms of updating the often-archaic language used in merger agreements, as firms such as Jones Day and contract specialist Kenneth Adams have [...

When a Party Has a Limited Role in a Transaction

Posted on March 25, 2008
Special thanks to reader Tony for reminding me of a usage that had slipped my mind: becoming party to a contract with respect to only certain provisions. For example, in an acquisition, the buyer?s parent might be party to the acquisition agreement solely to guarantee the buyer?s obligations or solely to undertake to pay a termination [...

Proofreading, Anyone?

Posted on March 25, 2008
Input from readers of this blog has already served to enhance the second edition of A Manual of Style for Contract Drafting. But why stop there? I’ve just sent the ABA the manuscript for MSCD2. I enjoyed putting it together, as it contains a boatload of new material...

Drafting Errors in the Bear Stearns Merger Agreement? What a Shock!

Posted on March 24, 2008
[Update March 24, 5:30PM EDT: Some people are suggesting that there’s something fishy to the story of Wachtell’s “mistakes.” See, for example, this post at Dealbreaker. On the other hand, Steven Davidoff’s analysis, at DealBook, takes the story at face value...

The Bear Stearns Merger Agreement?It?s Not a Thing of Beauty

Posted on March 19, 2008
I’m grateful to stalwart readers Steven Sholk and Mike Wokasch for contacting me about the Bear Stearns merger agreement. (Click here to go to a PDF copy.) This deal raises all sorts of policy issues, but we at AdamsDrafting say to heck with the big picture?let’s look at the drafting angle! I offer below some random [...

Stating Amounts of Money

Posted on March 10, 2008
I can think of five issues relating to how you state amounts of money in a contract. Words and Numerals Drafters will often do the words-and-numerals thing when stating amounts of money: Acme shall pay Widgetco One Million Dollars ($1,000,000). The idea is that whereas numerals are easier to read than words, they’re more prone to typographic [...

The Importance of Issue Spotting

Posted on March 10, 2008
Most of what I do addresses how to express clearly and efficiently whatever you want to express in a contract. But that only goes so far, because no amount of clarity will help you if you simply mishandle an important substantive issue. This story in the ABA provides a reminder of that...

The Current MAC Environment

Posted on March 10, 2008
I’ve written at inordinate length about how MAC provisions are used in contracts and how MAC is defined. But I don’t much get into whether, and how, MAC provisions are actually invoked in deals, unless issues of contract language come into play...

?The Terms Of?

Posted on February 29, 2008
Here’s a quick way to save three words: instead of saying in accordance with the terms [or provisions] of section 6, say simply in accordance with section 6.

?As the Case May Be?

Posted on February 29, 2008
Today I read in a work on contract drafting an explanation of the purpose served by the phrase as the case may be. I think the analysis offered was incorrect. Here’s my view: When in a contract a sentence provides for alternative courses of action, often one or more sentences that follow go on to address [...

Upgraded Registration System for Geneva Seminars

Posted on February 29, 2008
As I noted in this post, from April 21 through April 25 I’ll be giving my “Contract Drafting?Language and Layout” seminar at the Geneva, Switzerland offices of Hogan & Hartson. Well, I’ve now upgraded the registration system...

Obligation to Purchase = Obligation to Sell

Posted on February 29, 2008
Reader Michael Fleming informed me of US Salt, Inc. v. Broken Arrow, Inc., Civ. No. 07-1988, 2008 U.S. Dist. LEXIS 10841 (D. Minn. Feb. 11, 2008). This case serves as a reminder that a court would likely conclude that if Smith promises to purchase widgets from you, you’ve in effect also promised to supply widgets [...

?Bylaws? or ?By-laws??

Posted on February 23, 2008
Bylaws is spelled both with and without a hyphen. For example, Black’s Law Dictionary gives a definition for bylaw but notes that it’s sometimes spelled by-law. So which is preferable? It appears that bylaw is gaining the upper hand. For example, the 1915 edition of Robert’s Rules of Order Revised used by-laws but the current edition, Robert’s [...

?Complete and Accurate?

Posted on February 23, 2008
In a recent post I suggested that accurate is a “less dopey” alternative to true and correct. (Yes, I know, I too thought that an impressive turn of phrase.) That led a reader to suggest to me that complete and accurate is preferable to accurate...

?Automatically?

Posted on February 23, 2008
I suggest that for purposes of contract drafting, you can always do without automatically. Consider the following fragment: … and each January 1 thereafter, this agreement will be automatically extended for one additional year unless not later than … I suggest that eliminating the word automatically wouldn’t affect the meaning...

Semicolons

Posted on February 23, 2008
Perhaps because they’re aware that I’ve had occasion to consider punctuation, some readers contacted me about the February 18 New York Times article about use of a semicolon in a New York City Transit subway placard. Here’s the one thought that came to mind: In contracts, I use semicolons between integrated enumerated clauses when they’re preceded [...

Seminars in Geneva, Switzerland, April 21?25

Posted on February 20, 2008
I’m pleased to announce that from Monday, April 21, through Friday, April 25, I’ll be giving five consecutive one-day seminars on “Contract Drafting?Language and Layout” at the Geneva, Switzerland offices of the global law firm Hogan & Hartson...

Stating that Recitals Are ?True and Correct?

Posted on February 16, 2008
In the past year, 265 contracts filed as “material contracts” on the SEC’s EDGAR database contained a provision stating that the recitals were true and accurate. Here’s an example: The above recitals are hereby made a part of this Agreement and the Borrower acknowledges and agrees that each of the recitals is true and correct...

Adams Featured in LexBlog Q&A

Posted on February 13, 2008
Kevin O’Keefe’s Real Lawyers Have Blogs has posted a Q&A with yours truly. Click here to go to it.

English Courts?A Hotbed of ?Endeavours? Insanity!

Posted on February 13, 2008
I received the following from reader Nigel Madeley, of the U.K. law firm Addleshaw Goddard: Ken, I know this one raises your blood pressure a little. A case about nuisance by vibration?an adjoining occupier sought an injunction against a developer. The injunction was awarded...

?Bimonthly?

Posted on February 10, 2008
Avoid the prefixes bi- and semi- for purposes of references to time?they?re confusing. Bimonthly means ?every two months? and semimonthly means ?every half-month,? in other words ?twice a month.? Biweekly and semiweekly reflect the same distinction. But biannual and semiannual both mean ?occurring twice a year,? whereas biennial means ?occurring once every two years...

When Performance Under a Contract Is by a Division

Posted on February 07, 2008
Here’s yet another issue regarding the introductory clause that I haven’t previously written about: How, if at all, should you address in the introductory clause the fact that performance under the contract will be by a division of a company? You could ignore it...

The Apostrophe in ?Five Days? Notice?

Posted on February 07, 2008
A couple of days ago I received from a reader an email that included the following: I’ve got a question about the use of apostrophes in notice period provisions. I was rather surprised to see that section 8.96 of the MSCD includes apostrophes after the number of days/weeks/months in your example provisions...

More on Alliance Data Systems and Blackstone Group

Posted on February 06, 2008
As I mentioned previously, Alliance Data Systems and Blackstone Group are in litigation over Blackstone’s proposed acquisition of ADS. More specifically, ADS has filed a complaint alleging that Blackstone breached its obligations under the merger agreement by failing to use its ?reasonable best efforts? to obtain the approval of the Office of the Comptroller of the [...

?Promptly? and ?Immediately?

Posted on February 04, 2008
Quick?what?s the difference between promptly and immediately? I bet that what comes to mind is the notion that immediately requires speedier action that does promptly. Well, if that?s what you thought, you?re in good company. For example, the District Court for the Southern District of New York has said that promptly doesn?t mean immediately, but rather [...

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