University of Minnesota Law School Contract Drafting Seminar Spring 2011

1. University of Minnesota Law SchoolContract Drafting SeminarSpring 2011 February 15, 2011 Class 5 Adjunct Associate Professor Helen Winder

2. Review of Assignment #1 • Format • Details • IC v. Employee • Inter alia and other Latin phrases • Confidentiality-Non Disclosure • Non compete-no raiding • Work for Hire-IP protection

3. Hourly rate • Consultant tax liability • No assignment • Limits on expense reimbursement • Supervision/authority • Scope of work

4. Boiler Plate • Housekeeping Provisions • Important and necessary • Analyze and revise standards to fit your contract

5. Tina Stark, Negotiating and Drafting Contract Boiler Plate, ALM Publishing 2003. • How does the provision reflect the differing business needs? • What are the alternatives? • Analyze the risk-increase or decrease? • What control is a party seeking and why?

6. Merger-Integration • If a contract is intended to be final, complete and the exclusive expression of the agreement it is “completely integrated.” • If a contract is found to be completely integrated, then the Parole Evidence Rule makes prior or contemporaneous agreements and negotiations inadmissible. • Partial integration…use PE to supplement not contradict • Ambiguity allows PE for interpretation. • Merger clause to support integration

7. Favorites • Assignment limitations • Choice of law and forum • Successors and assigns • Cumulative remedies (loan example) • Amendment and Waiver • Damages v. Remedies (words of non-limitation?) • Force Majeur (state consequences-allocation costs) • Announcements • Severability=divisible provisions

8. Premier Agreement • Review Boiler Plate • What could be added or deleted?

9. Signature Blocks • Purpose - Signal assent - I.d. parties and capacity • Introduction! Parties agree to the above terms of this agreement. • Watch for inconsistent dating • Preamble • Effective Date • Signing date

10. Form dictated by Entity Individual Incorporeal Entity Seller: Big Co., a Minnesota corporation By___________________ Its____________________ Subject to approval by the Bankruptcy Trustee Seller ________________ John Smith 1234 Main St. Maplewood, MN

11. Signature Blocks, continued • Careful attention to correct names! • Complex organizations –follow chain of authority ABC Partners, A limited partnership (organized under the laws of Delaware) By: ABC Incorporated, Its General Partner By_______________ Name Title

12. Verifying Signatures • Witness _____________ • Notary On this ___day of July, 2011, John J. Dorn came before me and affixed his signature hereto. Notary___________ Commission expires___________ Seal

13. Electronic Signatures • UETA Minn. Stat. §3251.07 A record or signature cannot be denied legal effect or enforceability solely because it is in electronic form. Requirements: • Parties must agree to ES • Signature sent in a manner that attributes it to send and it can be retained • UETA only validates signatures and does not provide that the transactions are authorized.

14. Amendments • 3 ways to Amend Verbal with action Separate Document referencing the contract Original contract with deletions and changes marked. • Recite Consideration Now therefore in consideration of the mutual promises given between the parties… For good and valuable consideration, the parties agree to amend and modify the agreement of ______ as follows: • Number the document if using #2

15. Assignment #2 • Read facts, follow directions, turn it in on time!