[Updated 5:30 p.m. EDT, May 15, 2012, to revise what is now the next-to-last bullet point and add a new final bullet point, as well as supplement the closing sentence.] I find myself revisiting a favorite topic: stating in a contract how a nonparty is to act. (That something I explored most recently in this post about shall require.) Consider … Read More
[Revised 8:00 a.m. EDT, May 13, 2012, prompted by Mark Anderson’s comment and a good night’s sleep.] Consider the following, culled from the SEC’s EDGAR system: The Parties believe that the provisions of this Agreement are in compliance with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”), as presently in effect, if and to … Read More
In its recent opinion in In re C.P.Y. (copy here), the Texas Court of Appeals had occasion to consider the phrase “full-time basis,” and it concluded that it’s ambiguous. Youst (the husband) was required to pay Wells (the wife) alimony until, among other events, she returned to work “on a full-time basis.” Wells got work as a contract attorney, so … Read More
On December 1, 2007, AVAX Technologies and one Francois Martelet entered into an employment agreement providing for Martelet to serve as AVAX’s CEO. It all ended in litigation, and recently the District Court for the Eastern District of Pennsylvania issued this opinion. The only part that caught my eye involved the following provision: Discretionary Performance Bonus. Employee shall be entitled to … Read More
MSCD notes how in the U.S., traditionally exhibit is used to refer to a stand-alone document that’s attached to a contract, whereas schedule is used to refer to materials that could have been in the body of the contract but were moved to after the signature blocks. An exhibit might consist of a form of noncompetition agreement that’s to be … Read More
Behold commit to used to express obligations: each of the Guarantors hereby … commits to make a contribution to such Guarantor’s capital in an amount at least equal to The Employee commits to perform his/her duties pursuant to this Agreement on full time basis and not to engage in any other endeavors without the express permission of the Board of Directors of the … Read More
In this recent post, I discussed a case in which the word “termination” was held not to apply to “expiration” of a contract. Thanks to reader, I learned about a case, Olympus Ins. Co. v. Aon Benfield, Inc., No. 11-CV-2607 (D. Minn. March 30, 2012), in which the court came to essentially the opposite conclusion, due to nuances of contract language. … Read More
A little over a year ago I announced publication of my book The Structure of M&A Contracts. Since then, limbo: First, the book was available as a PDF, but only by calling West. Then, it became available exclusively on Thomson Reuters’s new ProView ebook platform, but without volume discounts and with limited marketing support. But now, the stars are in … Read More
So far, ContractExpress—the software that powers Koncision’s confidentiality-agreement template—has been able to handle everything I’ve thrown at it. Last week I learned of yet another feature that I expect I’ll need down the road. If your organization uses a number of different contract templates, it’s likely that those templates share common language—at a minimum, some or all of the “miscellanous” … Read More
I’m fond of saying that the first step in overhauling your contract process is analyzing the costs and risks of your current process. But what should such an analysis consist of? That question came to mind after my Inside Counsel SuperConference session last week. I was standing next to another of the presenters, Rees Morrison (he of the Law Department … Read More
