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2009

Drafting Clearer Contracts Part 1: The Front and Back of the Contract. West LegalEdcenter. 2009. AGREEMENT OF PURCHASE AND SALE SALE AGREEMENT PURCHASE AGREEMENT. Title. AGREEMENT AND PLAN OF MERGER AGREEMENT OF MERGER MERGER AGREEMENT. Title.

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2009

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  1. Drafting Clearer Contracts Part 1: The Front and Backof the Contract West LegalEdcenter 2009

  2. AGREEMENT OF PURCHASE AND SALE SALE AGREEMENT PURCHASE AGREEMENT Title

  3. AGREEMENT AND PLAN OF MERGER AGREEMENT OF MERGER MERGER AGREEMENT Title

  4. ASSET SALE, LICENSE, AND STRATEGIC ALLIANCE AGREEMENT AGREEMENT Title

  5. TRADEMARK LICENSE AGREEMENT FORTHE MARK “SUDZO” IN NORTH AMERICA TRADEMARK LICENSE AGREEMENT (SUDZO; North America) Title

  6. Reference to type of agreement Verb Date Preposition Identifying the parties Layout Introductory Clause—The Issues

  7. Introductory Clause—MSCD Format

  8. Introductory Clause—MSCD Format

  9. Introductory Clause—Traditional

  10. Introductory Clause—Date Other Than Signing Date

  11. Introductory Clause—Preposition

  12. Based on name Word versus initialism Common noun Refer to kind of entity (Company) or role in transaction (Seller) Using the definite article Using alternative defined terms Using the defined term the Parties The Introductory Clause—Defined Terms for Party Names

  13. Defined Terms for Party Names—Using Definite Article Consistently

  14. Introductory Clause—Limited Party Role; No Incidental Information

  15. Introductory Clause—Tabulated

  16. Why have recitals? Types Context Purpose Simultaneous-transaction Lead-in The traditional recital of consideration Recitals

  17. Recitals—MSCD Format

  18. Recitals—Traditional

  19. Recitals—Incorporation by Reference

  20. Recitals—Misuse

  21. Recitals—Unnecessary

  22. Saying the recitals are “true and correct” Creating and using defined terms in the recitals Recitals

  23. Cover sheet Table of contents Index of defined terms Front-of-the-Contract Extras

  24. Stating key terms at the top of a contract Function Facilitates negotiation, monitoring of performance Risks Clutter Frontloaded information can diverge from information in the body of the contract Frontloading

  25. Concluding Clause—MSCD Format (Date in Introductory Clause)

  26. Concluding Clause—MSCD Format (Signatures Dated)

  27. Two parties: “If a party signs but fails to date a signature, the date that the other party receives the signing party’s signature will be deemed to be the date that the signing party signed this agreement.” More than two parties: “If any party signs but fails to date a signature, the date that the Company receives the signing party’s signature will be deemed to be the date that the signing party signed this agreement.” Signature Blocks—If a Party Fails to Date Its Signature

  28. Concluding Clause—Traditional

  29. Format Referring to authorization “Its duly authorized representative” “I have authority to bind the corporation” Having two people sign for one entity Seals Witnessing signatures Notarizing Signature Blocks

  30. Exhibits Stand-alone documents Schedules Factual information Put at back for reasons related to space; logistics; timing; minimizing disclosure Placing contract provisions in schedules Enumeration Attachments as part of the contract Attachments

  31. A document (especially a web page) that is part of a contract without being physically attached to it Making sure a virtual attachment is part of the contract Unilateral amendment? Virtual Attachments

  32. Front of the Contract—Bear Stearns

  33. Front of the Contract—More Bear Stearns

  34. Back of the Contract—Bear Stearns

  35. Front of the Contract—RMA Widgets, Before

  36. Front of the Contract—RMA Widgets, After

  37. Back of the Contract—RMA Widgets, Before

  38. Back of the Contract—RMA Widgets, After

  39. Use standard English Include only the information you need Use recitals to introduce the reader to the contract Use the same approach wherever in the world you happen to be Don’t be afraid of change The Front and Back of the Contract—Some Key Points

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