CONTRACT DRAFTING SYLLABUS Summer 2017 Professor Email: Anessa M. Allen Santos aallensantos@gmail.com Office #: 407.562.3936 Office Hours: Class Times: Course Materials: Room 335D on Tuesdays and Thursdays from 4:00 pm 6:00 pm. Other times as may be individually arranged. This class will meet on Tuesdays and Thursdays from 6:00 pm 8:30 pm. The course textbook is A Manual of Style for Contract Drafting, Third Ed., by Kenneth A. Adams. Supplemental materials will be posted on TWEN. Course Description: This three-hour course explores the key practices of contract drafting and the connection between the business transaction and the contract. Students will learn the skills of good drafting, such as understanding the business transaction, knowing how to use contract concepts to accurately reflect the parties deal, how to draft and recognize nuances in language that change the deal, and how to discern and resolve business issues. The course also addresses the ethical issues in contract drafting. Instruction includes drafting exercises and simulations. Grading: This course will be graded according three metrics: exercises in drafting, a final project, and class participation. (1) Worth 50% of the overall grade, drafting exercises will involve submission of original works for assigned contract components, will be evaluated for accuracy and clarity of terms, formatting, and for proper legal grammar and punctuation. (2) For the final project, also worth 50% of the overall grade, a business arrangement will be proposed for which students will be required to identify the issues and draft them into a full and final agreement. (3) Class attendance and participation are critical to the success of the overall learning environment. Students will be required to engage in role-playing exercises reflecting discussions that commonly arise in business relationships. In order to accurately reflect the real-world environment of the negotiation and drafting of business deals, students will also be expected to engage in constructive criticism of each other s work. Students who are consistently well prepared for class, voluntarily answer questions posed, and contribute meaningfully to class discussions will be eligible to have their course grades raised by one step. Students who participate in a disruptive manner or who do not engage in meaningful analysis of the course materials may have their grades reduced by one step. Attendance Policy: Class attendance is required by ABA accreditation standards. Students who miss more than 3 of the scheduled class meetings will not receive credit for the course. Credit for attendance requires the student to appear on-time for class and to be properly prepared. Page 1 of 6
CLASS #1 The Drama of the Dispositive Comma The art of drafting contracts and why someone else s form just won t do. Ethics of Transactional Work. confidentiality, metadata, copyright, and other ethical issues. Interviewing the Business Client. An analysis of the kinds of information we need to extrapolate and document from the client in order to commence representation. Client Meeting. Each student will be issued their client files and editing partner, the attorney representing the other side of the transaction. Read Chapters 2, 15, 19-20 (pages 11-36; 373-376; 409-424) (Total 34 pages) Create a Client Interview Intake Form and populate with the information you have learned about your new client. Email in for credit. CLASS #2 Know Your Client! A review of the foundations of business organizations including an examination of common business entities, tax structures, formation, compliance and securities, governance and operations, and exit strategies. Read Chapters 4 & 5 (pages 99-138) (Total 39 pages) Decide on the proper business entity and tax structure for your client and complete the necessary forms properly formalize the business entity and acquire the EIN for your client. Email in for credit. CLASS #3 Corporate Governance Compliance. Mandatory governance compliance and discretionary business operations explained. A review of the compliance requirements of Florida Statutes and how they pertain to corporate bylaws, operating agreements, and partnership agreements. Drafting Corporate Resolutions. (Adams Ch. 20) The governing bodies of business entities act by means of resolutions that appear within minutes of meeting and, if state law allows it, in written consents that are adopted as an alternative to holding a meeting. Mock Directors Meeting w/robert s Rules of Order. A lesson in operating as corporate secretary and general counsel. Read Chapters 1 & 16 (pages 1-10; 377-392) (Total 24 pages) Draft minutes of the meeting and a corporate resolution adopted by signature. Email in for credit. CLASS #4 Timeline of the Deal. A deep dive into the transaction schedule from initial discussion to postclosing adjustments, including NDAs, LOIs and term sheets, checklists, drafts, and edits. Page 2 of 6
Contract Foundations. A summary review of the general principles of contract law including types of contracts, contract formation, conditions and performance standards, discharge, and the importance of the rules of parole evidence and ambiguities, all which must be held in mind when drafting. Remedies, Damages & Equitable Relief. What must be negotiated for in writing in order for your client to have rights to claims. Read Chapter 3 (pages 37-67) (Total pages 30) Write a timeline of your deal; Identify what special rights of remedies, damages or equitable relief will you need to include in your clients final agreement. Email in for credit. CLASS #5 Letter Agreements: LOIs v. Term Sheets. (Adams Ch. 19) A comparison of the two most common expressions of the exchange of mutual interest and decision to press forward toward a final agreement. When is a non-binding LOI or term sheet nonetheless binding on the parties, and other similar pitfalls. Rules Governing Commercial Transactions. (Adams Ch. 15) An exploration of the rules which commonly govern commercial transactions including CISG, ISO, UCC, ESIGN, UETA, FTC (Guidelines for e-commerce, Magnusson-Moss Act), Florida law and Delaware law, and other provisions specifying drafting conventions such as the UCC and Restatement (Second) of Contracts. Read Chapter 3 (pages 68-98) (Total pages 30) Write a non-binding letter of intent; include reference to the regulatory requirements your deal must meet. Email in for credit and bring a copy to next class. CLASS #6 Client Meetings. Review and edit your partner s LOI. The Anatomy of a Contract. (Adams Ch. 4) An examination and identification of the key components of most written agreements for commercial transactions from title through attachments. Key Terms. How to identify the key terms in a deal for inclusion into a term sheet or outline. Form before Substance. (Adams Chapters 2, 4, 5, & 16.) Contract Layout & Typography. Stellar visuals make for an easy read. Key principles of contract organization and formatting. Read Chapters 6 & 17 (pages 139-152; 393-402) (Total 23 pages) Draft a term sheet for your client s deal. Email in for credit and bring a copy to next class. Page 3 of 6
CLASS #7 Client Meetings. Review and edit your partner s term sheet. Optimal Contract Language. (Adams Ch. 1) A well drafted contract is not an editorial. Stick to the hard facts and keep your opinions to yourselves. 5 W s do apply. 3 Voices of Contract Draftors. (Adams Ch. 1) Reviewing the transition from traditional archaic lexicon to modern, plain English in contracts for both B2C and B2B deals. Examples will include the voices of Contemporary, Traditional and a blend of the two in both the B2C and B2B contexts. Rules for Drafting Prose. (Adams Ch. 17) Commas, Quotes and Grammar Guides the most relevant general principles of good writing. Read Chapters 7, 10 & 14 (pages 153-158; 197-208; 361-372) (Total pages 27) Draft an outline for your client s deal using the term sheet as a guide. Email in for credit. CLASS #8 Resist the Non s! A study of the four common covenants that too often make their way into documents exchanged among businesses and individuals: Non-Disclosure, Non-Compete, Non- Circumvent, and Non-Solicitation Clauses and Agreements. Categories of Contract Language. (Adams Ch. 3) Languages of Agreement, Performance, Obligation, Discretion, Prohibition, Policy, Conditions, Declaration, Belief, Intention, and Recommendation. Read Chapters 11 & 12 (pages 209-246) (Total pages 37) Draft an NDA for your client incorporating all four covenants. Email in for credit and bring a copy to next class. CLASS #9 Client Meetings. Review and edit your partner s NDA. Title, Preamble, Recitals & Statement of Consideration. (Adam s Ch. 2) Substance after form. Time to draft. Crafting an appropriate title, party identification, agreement objectives, and other nuances. Definitions. (Adams Ch. 6) Terms of Art distinguished from Defined Terms. The identification, demarcation and proper inclusion of defined terms throughout the agreement. References to Time; Numbers and Formulas. (Adam s Ch. 10 & 14) How to properly reference various points and period in time, numbers, and formulas in drafting contracts. Read Chapters 8 & 9 (pages 159-196) (Total pages 37) Draft the title, preamble and recitals for your client s deal; email in for credit and bring to class Draft those terms which may need to be defined on Exhibit A to the agreement. Email in for credit Page 4 of 6
CLASS #10 Client Meetings. Review and edit your partner s title, preamble and recitals. Uncertainties & Ambiguities in Contract Drafting. (Adams Ch. 7, 11 & 12) Sources of uncertainties in contract language; ambiguity of the part versus the whole and in syntax. Elements and Issues Unique to Service Agreements. Employee v. Independent Contractor Agreements, Agreements for Services, Outsourcing, Service Warranties, Service Level Agreements (SLAs), Statements of Work (SOWs) Read Chapters 13 & 18 (pages 247-277; 403-408) (Total pages 35) Draft those provisions of your client s agreement that pertain to service issues. Submit via email for edits. CLASS #11 Reasonable Efforts, Material Adverse Change & Selected Usages. (Adams Ch. 8, 9 & 13) Elements Unique to Agreements for Products. OEMs, suppliers and integration; Channel partners, resellers and referrals; the Master Purchase Agreement unpacked; Payment Options; Product shipment and delivery options; Product Returns; Product warranties (commercial versus consumer) Read Chapter 13 continued (pages 278-306) (Total pages 28) Draft those provisions of your client s agreement that pertain to product issues. Submit via email for edits. CLASS #12 Warranties, Indemnities & Limitations on Liability Clauses. Issues of warranty governing the party s behavior under the terms of the agreement; Issues native to indemnity; and limitations on liability under warranties and indemnity Read Chapter 13 continued (pages 307-335) (Total pages 28) Draft the provisions of warranty, indemnity and limitation of liability for your client. Submit via email for edits. CLASS #13 Considerations for IP and Tech Agreements. (Tech Agreement Handbook) Summary overview of Intellectual Property (Patents, Trademarks, Copyrights, Trade Secrets and Licensing); Whitelabeling other products; EULAs; Click-wraps; Shrink-wraps; Browse-wraps; SLAs Page 5 of 6
Read Chapter 13 continued (pages 336-360) (Total pages 24) Draft the licensing provisions of your client s agreement. Submit via email for edits. CLASS #14 Boilerplate Language. Identify and discuss those clauses which are most commonly found in the Miscellaneous section of contracts, often referred to as boilerplate language. Exhibits, Addendums and Schedules Incorporation by Reference Document Execution Post Closing Adjustments & Other Amendments (Adams Ch. 18) Finalize your project and submit by the due date. Page 6 of 6