Introduction to drafting. How to draft a clause in modern English, expressing obligations, contingent obligations, exceptions, and using (or avoiding) special terminology used in contracts. How to structure a contract.

Specific issues and clauses to be included

• Parties. Ensuring that the parties are clearly defined, especially in relation to a group of companies. What happens if the contract is assigned or transferred?
• Heads of agreement, letters of intent. To what extent are LOI’s and HOA’s legally binding? No contract, no problem?
• Amendment clauses. Side letters.
• Electronic signatures. Legal position in USA, EU and UK. Suggested clauses.
• Consideration. What is it? Payment clauses. Earn-outs in Company Sale and Purchase agreements. Completion accounts vs. locked box provisions. Price adjustment clauses vs. “anti-leakage” provisions.
• Retention of title clauses. Different types.
• Representations, warranties, guarantees, indemnities, covenants. What is the difference between them?  How are they best drafted?   “Reps and warranties” – do we need both? Sandbagging clauses.
• Measuring performance. Best and reasonable endeavours/efforts.  Sales target clauses.
• Restrictive covenants. Drafting non-compete clauses, non-solicitation clauses and other restrictive covenants. Pre-completion covenants / covenants of conduct in M&A.

• Default and remedies. Termination clauses. What is a ”material breach”?
• Liquidated damages clauses v penalties. LD clauses in common law systems – how they differ from penalties in civil law countries.
• Limitation of liability, exclusions of liability and “caps”. Minimising the risks. MAC and MAE clauses in Company Sale and Purchase agreements. “Inclusion” clauses.
• Direct and indirect damages – the implications of recent case law for drafting.
• Dispute resolution. Jurisdiction, choice of law and arbitration after Brexit.
• Boiler plate provisions eg drafting notices clauses, force majeure clauses, whole agreement clauses, severance clauses