Contract Drafting Class Notes – D. C. Toedt III

1 Preface

Updated Wed. Oct. 19, 2016   18:25 CST

Welcome. This Web page contains important information about my Contract Drafting course. Please see the table of contents at the top left and the course information.

2 August

2.1 Mon. Aug. 22, 2016

2.1.1 Before class

Reading assignment: None.

Homework: None.

2.1.2 Housekeeping

  1. Check Web site for reading & homework assignments.
  2. Hand out paper name tents
  3. Circulate sheet to collect email addresses for a Google Group mailing list, which I use to send out all-hands emails.
  4. Introduce selves
  5. Break into three groups of four (these groups will be reshuffled twice during the semester on the same day as the in-class quizzes)
  6. Go over course information:
    • Each class session will last 85 minutes, ending at 5:25 p.m. / 8:55 p.m., to get seven extra class minutes and thus try to avoid having to make up canceled classes (if any). Because of holidays this semester on Labor Day and the day before Thanksgiving, the law school requires 78-minute sessions for M-W three-credit courses in order to meet an ABA accreditation standard of 700 minutes of instruction per credit hour.
    • Possibility of Webinar-style remote meeting if DCT will be absent.
    • Computer use:
      • Blackboard for quizzes, final exam, chat room (for in-class drafting exercises) and virtual whiteboard (ditto).
      • Backup plan: for chat room and remote classes, Workflowy virtual whiteboard for in-class exercises
    • Grading – 1,000 points for the semester, via the final exam, two in-class quizzes, homework, and class attendance.
  7. Possible DCT absence: Oct. 24 for a business trip (not firmed up yet).
  8. Overview of this course's approach.

2.1.4 Questions for discussion

  1. In your practice, do you expect you'll be doing more drafting of contracts, or more review of drafts that others have prepared? Explain.
  2. What do you think are the main goals of a contract drafter or reviewer?
  3. In abstract terms, what do you think is the client's overarching goal in negotiating a contract?
  4. What makes for a workable contract?
  5. What do you think is likely to be the worst bottleneck in getting a contract to signature?
  6. What kind of contract language do you think business lawyers should aspire to write?

2.1.5 Lecture: The value of speed in getting to signature sooner

I don't hand out the PowerPoint slides,* but you can download a PDF of the associated paper, Getting a Workable Contract to Signature Sooner.

* The slides contain images that I copied and pasted from the Web — while I'm comfortable that use of the images in a classroom presentation is "fair use" under the copyright laws, I'm less confident about that being the case if I were to distribute copies, where they could end up who knows where.

2.1.6 Questions for small-group discussions

  1. PROPOSITION: A contract drafter should strive to anticipate and address all harms that might arise in the course of the parties' relationship.
  2. QUESTION: What is a "vague" term? What is an "ambiguous" term? (Hint: See here.)

2.2 Wed. Aug. 24, 2016

2.2.1 Reading (yes) & homework (none)


Preamble of agreement (including the comments)

Signatures (including the comments and additional notes)

Ambiguity and vagueness

Rick's Cabaret Purchase & Sales Agreement (preamble and signature blocks only)

  • Note the preamble style
  • Note the signature-block style
  • Line 875: Note the limited-purpose signature block

Homework: None.

2.2.3 Contract-reviewer etiquette (1): The Whereas clause

FACTS: The other side sends over a draft contract. After the preamble, it includes a "WITNESSETH" heading and a bunch of "WHEREAS" recitals.

QuESTION: Do you change these things to a simple "1. Background" section?

(a) No – when reviewing and revising a first draft, avoid making purely-stylistic changes.

(b) BUT: If the Whereas clauses require substantive revision, then by all means make the needed revisions (redlining the changes, of course).

2.2.4 Contract-reviewer etiquette (2): Formatting

FACTS: Your client, ABC Corporation, is trying to sell widgets to XYZ Inc. XYZ's people send over a Word document containing XYZ's standard terms of purchase — which are formatted in two columns per page with very-long sentences and paragraphs.

QuESTION: How do you respond?

See WallOfTextReformat.

2.3 Mon. Aug. 29, 2016

2.3.1 Experiment: Hands off the computer during Q&A, please

We're going to try something today: During class, when I pose the questions in the sections below, I'd like everyone (except me) to please stay off their computers, so as not to reveal or look up the answers to the questions during class. (Looking up the answers before class is just fine and in fact is what you should be doing.)

2.3.2 Homework due today

2.3.3 Reading assignment and questions: A Somewhat-Barebones Contract

The reading assignment is here

2.4 Wed. Aug. 31, 2016

2.4.1 Homework due today: Rick's Cabaret preamble (5 points)

In a Word document, rewrite the preamble and recitals to the Rick's Cabaret purchase agreement.

  • Use Microsoft Word.
  • Use plain English.
  • Use short, simple sentences.
  • See and its commentary for tips.
  • Email me the Word document.

(I've asked the UH Blackboard people to finish the setup that will let you do these short homework assignments directly on Blackboard.)

2.4.2 Reading: Payment terms

Read the following Common Draft sections and commentary:

4.1 (payment terms) through 4.5 (deposits)

4.8 (interest) and 4.9 (usury savings)

2.4.3 Class plan

• Exercise: Payment Terms 1

• Exercise: Grammar awkwardness – Safes

• Preview — whistleblowers (relevant to backdating of contracts):

  • Monsanto pays $80MM penalty to SEC for its misleading financial statements — whistleblower gets $22 million.
  • Oracle whistleblower gets $40MM after company pays $199.5MM for breaching most-favored-customer provision.

• Show: Signing the Wrong Line on The Japanese Surrender

3 September

3.1 Mon. Sep. 05, 2016


3.2 Wed. Sep. 07, 2016

3.2.1 Homework due today: Rewrite UAL-CAL provision for clarity

3.2.2 Reading: Reps and warranties

Read the following Common Draft provisions and their commentary:

3.2.3 Class plan

3.3 Mon. Sep. 12, 2016

3.3.2 Homework

3.3.3 Class plan

3.4 Wed. Sep. 14, 2016

3.4.1 Reading

3.4.2 Homework: None

3.4.3 Class plan

3.5 Mon. Sep. 19, 2016

3.5.1 Homework due today (5 points total)

This homework is designed to provide an early review of what we discussed in class the previous week.

3.5.2 Reading

3.6 Wed. Sep. 21, 2016

3.6.1 Reading

• Sheryl Sandberg employment agreement (annotated)

  • The exercise(s) listed under "Class plan" below.

3.6.2 Homework

3.7 Mon. Sep. 26, 2016

3.7.1 Reading

3.7.2 Homework

3.8 Wed. Sep. 28, 2016

3.8.1 Reading

  • The exercise(s) listed under "Class plan" below.

3.8.2 Homework

No homework due today - quiz day.

4 October

4.1 Mon. Oct. 03, 2016

4.1.1 Upcoming homework

See the notes below for Mon. Oct. 10, Mon. Oct. 24; and Mon. Nov. 7.

4.1.2 Quiz 1 review

4.1.3 Ambiguity in the Sony-Spotify license agreement

Here's a case where a perceived ambiguity is necessitating discovery and further proceedings about how the streaming of digital music should be classified for license-fee purposes. The federal district court in NYC denied the parties' motions for judgment on the pleadings; as a news report notes:

If streams are treated as "broadcasts" or "transmissions," under the 19-Sony deal, that means the artists get a 50 percent royalty share.

If on the other hand, streams are treated as "sales" or "distributions," then a lower record royalty rate — typically about 15 percent — applies.

Eriq Gardner, Judge Finds Sony-Spotify Agreement to Be Ambiguous in Big Royalties Lawsuit, Hollywood Reporter, Sept. 29, 2016 (extra paragraphing added).

Thanks to Billy Walters for noticing this.

4.1.4 A comma can make a difference

Compare this sentence from Malcolm Gladwell's book David and Goliath with the rewritten version:

[Original:] Goliath didn't get what he wanted, because he was too big. [Emphasis added.]

[Rewritten:] Goliath didn't get what he wanted because he was too big.

4.1.5 Sandberg employment agreement, continued

4.2 Wed. Oct. 05, 2016

4.2.1 Reading

Review the Sandberg employment agreement and the Stanford-Tesla lease agreement; we will continue working through them and examining some of the doctrinal background and drafting issues presented.

4.2.2 Homework


4.2.3 Homework review: Stanford-Tesla § 4.3 redraft

[I'll show my redraft on the monitor.]

4.2.4 Flashback: Review question

Q: Will an iron-clad LOI disclaimer prevent the parties from being locked in? Why or why not?

A: No – the parties post-LOI actions might end up being binding, as in the Energy Transfer Partners, L.P. v. Enterprise Products Partners case, which resulted in a $450-million judgment.

4.2.5 Exercises Sandberg employment agreement, continued

4.2.6 Discussion

4.3 Mon. Oct. 10, 2016

4.3.1 Reading

Skim the headings in the text (not just the table of contents) of the Verizon-Yahoo stock purchase agreement to see what issues those drafters addressed.

4.3.2 Homework

Redraft section 4.06(b) of the Verizon-Yahoo stock purchase agreement to make it something that Warren Buffett might send to his sisters:

• Break up long sentences and paragraphs.

• Strive for simpler sentences.

• Avoid repeating long phrases such as "approve, authorize, endorse …." (Hint: consider defining a capitalized term.)

• Don't change the substance — but consider whether "reasonable best efforts" expresses a coherent thought. (Hint: See the Common Draft definition of "best efforts" and, especially, its commentary.)

4.3.4 Substantive exercises

4.4 Wed. Oct. 12, 2016

4.4.1 Reading

Look over the exercises below.

4.4.2 Homework — none

4.4.3 Drafting-skills exercises Clarity exercise: "Having" an option

TEXT, from a student's rewrite of Stanford-Tesla lease agreement § 4.3: "… Tenant shall automatically have the Extension Option, which Landlord shall honor if Tenant chooses to enforce the Extension Option."

EXERCISE: Rewrite.

A: One possibility:

Tenant may exercise the Extension Option as provided above for [X] days after [SPECIFY DATE OR EVENT]. Clarity exercise: In case any action

TEXT: "In case any action or proceeding be brought, made or initiated against Landlord relating to any matter covered by Tenant’s indemnification obligations under this Section or under Section 12.5, Tenant, upon notice from Landlord, will at its sole cost and expense, resist or defend such claim, action or proceeding by counsel reasonably approved by Landlord."

EXERCISE: Redraft to simplify.

A: IF: Any event occurs that is covered by Tenant’s indemnification obligations under this Section or under Section 12.5; THEN: Upon notice from Landlord, Tenant, upon notice from Landlord will, at its sole cost and expense, resist or defend such claim, action or proceeding by provide Landlord with a defense, using counsel reasonably approved by Landlord. Exercise: Subparagraph numbering


(b) In case any action or proceeding be brought, made or initiated against Landlord relating to any matter covered by Tenant’s indemnification obligations under this Section or under Section 12.5; THEN:

(i) Tenant, upon notice from Landlord, will, at its sole cost and expense, resist or defend such claim, action or proceeding by counsel reasonably approved by Landlord; and

(ii) Landlord may retain its own counsel to defend or assist in defending any claim, action or proceeding involving potential liability of Five Million Dollars ($5,000,000) or more, and Tenant will pay the reasonable fees and disbursements of such counsel.

QUESTION: What's wrong with this numbering?

Subdivision (ii) wouldn't "work" grammatically if subdivision (i) were deleted and subdivision (ii) were then merged into the beginning of subdivision (b).

Each of subdivisions (i), (ii), etc., must "work" in that way. Exercise: Withholding of approval

TEXT: From the Stanford-Tesla lease agreement, section 12.5: "Tenant will obtain Landlord's written approval of such counsel, which approval shall not be unreasonably withheld, conditioned or delayed."

EXERCISE: Rewrite the second part for plainer English.

A: "Tenant will obtain Landlord's written approval of such counsel; Landlord will not unreasonably withhold, condition, or delay its approval." [Note the addition of the serial or "Oxford" comma after "condition."]

4.4.4 Substantive exercises

4.5 Mon. Oct. 17, 2016

4.5.1 Reading

Verizon-Yahoo stock purchase agreement – just the following:

  • Article II: Representations and warranties of seller
  • Article III: Representations and warranties of purchaser
  • Section 8.16 (disclosure schedules)

4.5.2 Homework – none

4.5.3 Drafting-skills exercises Clinton and Trump Yard Signs

QUESTION: Which of these versions, of a Facebook comment I did yesterday, is funnier?

  1. (The original:) One of our friends is a bit of a joker — he says one of his neighbors has Clinton yard sign and another a Trump yard sign, and he's thinking of switching them ….
  2. (Shortened sentences:) One of our friends is a bit of a joker. One of his neighbors has a Trump yard sign; another, a Clinton yard sign. He's thinking of switching them. Ambiguity in the White Sox Clubhouse

From Ken Hoffman's column in the Houston Chronicle, March 22, 2016, p. D2, col. 1:

White Sox management announced this week that the LaRoche matter was closed — and the right decision was made by all parties involved.

QUESTION: Was Hoffman —

  • reporting that the right decision was made, or
  • opining that the right decision was made? Ambiguity: Less and less people

From Mark Kleiman, The Current Crime Debate Isn't Doing Hillary Justice ( Feb. 2016):

When the prison population is small, it consists mostly of serious, high-rate offenders, because prosecutors and judges try to single them out. Therefore, when the population grows, it grows mostly by adding less and less dangerous people.

(Emphasis added.)

QUESTION 1. Would "fewer and fewer dangerous people" be a better fit here?

A: Possibly – but that would depend on a binary classification of prison inmates as A) dangerous people, and B) non-dangerous peopoe. That seems unlikely.

QUESTION 2. Might hyphens be useful here? (See the Grammarist notes on phrasal adjectives.)

A: One possibility: "… when the population grows, it grows mostly by adding less-dangerous people." Ambiguity: Book of Common Prayer (in class only)

Note the ambiguity in the Book of Common Prayer (1979) of the Episcopal Church, pp. 361, 377 (Eucharistic Prayer A with the Proper Preface for Lent):

It is right, and a good and joyful thing, always and everywhere to give thanks to you, Father Almighty, Creator of heaven and earth. Through Jesus Christ our Lord; who was tempted in every way as we are, yet did not sin ….

EXERCISE 1: Ignoring the theology, rewrite this so that the phrase "Through Jesus Christ our Lord" clearly refers to the people giving thanks through Jesus.

A: One possibility: "It is right, and a good and joyful thing, always and everywhere to give thanks to you, Father Almighty, Creator of heaven and earth. We do so through Jesus Christ our Lord, who was tempted in every way as we are, yet did not sin …."

EXERCISE 2: Ignoring the theology, rewrite this so that the phrase "Through Jesus Christ our Lord" clearly refers to the Father Almighty creating heaven and earth through Jesus.

A: One possibility: "It is right, and a good and joyful thing, always and everywhere to give thanks to you, Father Almighty, who created heaven and earth through Jesus Christ our Lord, who himself was tempted in every way as we are, yet did not sin …."

4.5.4 Substantive exercises

Reference: Verizon-Yahoo Stock Purchase Agreement ("SPA")

QUESTION 1: With your group, make a list, and sketch out a generic timeline, of of some of the major events in an M&A transaction evolves, from initial discussions to the "closing."

4.5.5 General reading about the Verizon-Yahoo merger

See, e.g.:

4.6 Wed. Oct. 19, 2016

4.6.1 Reading

4.6.2 Homework – none

4.6.3 Drafting-skills exercises Ambiguity exercise: Dog bite

Use one character to eliminate the ambiguity:

Passerby helps dog bite victim.

(Adapted from

A: The character would be a hyphen: Passerby helps dog-bite victim.

Now, use one word to eliminate the ambiguity, but this time in the opposite direction:

A: Passerby helps dog to bite victim. Clarity exercise: "Open and acknowledged racism"

TEXT: From Ta-Nehisi Coates in The Atlantic: "Open and acknowledged racism is, today, both seen as a disqualifying and negligible feature in civic life."

EXERCISE: Ignoring the substance of this sentence, rewrite it to fix the problem with the use of "both"; feel free also to rearrange the words for additional clarity.

Here are a couple of possible rewrites:

Open and acknowledged racism is seen as both a disqualifying- and a negligible feature in civic life today. [Note the use of a hyphen after the word "disqualifying" to signal a connection with the subsequent word "feature."]


Open and acknowledged racism is seen as disqualifying — and as negligible — in civic life today. [Note that "both" has been dropped, in essence replaced by em-dashes.] Ambiguity exercise: Going to Oregon

Consider the following sentence:

The family went to Oregon with Betty, a maid, and a cook.

In the chat room, rewrite the sentence three different times — consider using parentheses and dashes, too — to be clear that the family went to Oregon with, in this order:

  • one person
  • two persons
  • three persons

(Adapted from

4.6.4 Substantive exercises

QUESTION 1: How is the purchase price to be paid? (SPA at ¶ 30.)

A: By wire transfer of "immediately available funds."

QUESTION 2: What are "immediately available funds"? (See generally this explanation by leading contract-drafting scholar Tina Stark.)

A: Just that: The money will hit the Seller's bank account and can be immediately spent.

QUESTION 3: (review) What are some common forms of payment mechanism that are used in contract transactions?

A: Checks. Certified checks. Cashier's checks. ACH. Wire transfer — possibly but not necessarily of immediately-available funds.

QUESTION 4: How much is the purchase price? (SPA at ¶ 22.)

A: The purchase price is unknown as yet; it will be finally determined after closing. The Base Purchase Price is $4.825 billion, plus or minus (see ¶¶ 17-21).

QUESTION 5: Who will (initially) determine the final purchase price — and what if there's a disagreement? (SPA at ¶ 74, ¶ 85, ¶¶ 89-90.)

A: Verizon — that is, the buyer — will determine the final purchase price, but Yahoo can ask for an independent accounting firm — KPMG, unless otherwise agreed — to make the final-final determination.

Lecture: (preview) "Baseball" arbitration.

QUESTION 6: Why does SPA § 2.07 go into such detail about the documents that Yahoo filed with the SEC?

A: Verizon, as the buyer, wants to be able to rely on Yahoo's SEC filings in lieu of doing even-more-extensive due diligence. (That's why public-to-public M&A transactions are regarded as easier to do than if either company, especially the target company, is privately held.)

Lecture about the significance of some of the language in § 2.07.

QUESTION 7: Why does SPA § 2.16 use the term "To the Knowledge of Seller …." so often? From Seller's perspective, is that the optimal term? From Seller's perspective, how could this phrasing be improved?

QUESTION 8: Why did Yahoo send a proxy statement to its shareholders asking them to approve the merger?

A: (1) Under corporate law, certain type of transaction require shareholder approval. (2) IF: A company's shares are publicly traded in the U.S.; AND: A matter is to be submitted for a shareholder vote; THEN: Federal law and SEC regulations require the company to send shareholders what's referred to as a "proxy statement" providing specified information (in a specified arrangement) relating to the matter to be voted on.

4.7 Mon. Oct. 24, 2016

4.7.1 Reading

• Read ,section 5.02(a) of the Verizon-Yahoo stock purchase agreement — we will use that as a vehicle for discussing some typical issues that can come up in M&A work.

• Read the Common Draft General Provisions Baseline Terms and their commentary.

4.7.2 Homework

Redraft ,section 5.02(a) of the Verizon-Yahoo stock purchase agreement to make it something that Warren Buffett would send to his sisters — don't change any of the substantive terms, though.

4.7.3 Drafting-skills exercises Ambiguity exercise: The daughter of Poseidon

Heard on The Ezra Klein Show, a podcast on, when he interviewed his Vox co-founder Melissa Bell: she said, "I was raised by the ocean in San Diego." Klein immediately responded: "I had a privileged upbringing: Poseidon was my father … I control the waves."

EXERCISE: Rewrite the bold-faced portion to eliminate the ambiguity.

Ambiguity in the Want Ads

Ambiguity: Pre-Obamacare Coverage

Ambiguity: Meow

4.7.4 Substantive exercises

To be announced — will include quiz-review exercises

4.8 Wed. Oct. 26, 2016

4.8.1 Reading, homework: None (quiz day)

4.8.2 Quiz

This will be done on Blackboard.

4.8.3 Drafting-skills exercises

To be announced

4.8.4 Substantive exercises

To be announced

4.9 Mon. Oct. 31, 2016

4.9.1 Reading

Common Draft litigation provisions and commentary

Verizon-Yahoo stock purchase agreement §§ 8.08-8.09 (governing law; waiver of jury trial)

4.9.2 Homework: Redraft Verizon-Yahoo termination right

4.9.3 Quiz review

4.9.5 Substantive exercises

To be announced

5 November

5.1 Wed. Nov. 02, 2016

5.1.2 Homework

To be announced

5.1.3 Drafting-skills exercises

To be announced

5.1.4 Substantive exercises

To be announced

5.2 Mon. Nov. 07, 2016

5.2.1 Reading

Common Draft Standards; Inspections; Restrictions and their annotations

Verizon-Yahoo stock purchase agreement §§ 4.03 (access to information)

5.2.2 Homework: Supercomputer sale (10 points)

FACTS: Retrieve your used-computer contract from the beginning of the semester. Now change the facts: The computer is a supercomputer owned by your client, an oil company, which wants to sell the supercomputer for $3 million.

ASSIGNMENT: Draft a "term sheet" of provisions giving the buyer a limited right to inspect and test the supercomputer, but without moving the supercomputer from its current location in the seller's laboratory.

  • BE SURE TO CONSIDER what if any limitations and restrictions the seller would want to impose.
  • You don't need to draft detailed terms and conditions; just the "bullet points" will suffice.
  • Feel free to work with friends, but EACH STUDENT IS TO WRITE UP THE TERMS SEPARATELY.

5.2.3 Drafting-skills exercises

To be announced

5.2.4 Substantive exercises

To be announced

5.3 Wed. Nov. 09, 2016

5.3.1 Reading

Common Draft guaranty provisions and associated annotations

5.3.2 Homework: Redraft a release

5.3.3 Drafting-skills exercises

To be announced

5.3.4 Substantive exercises

To be announced

5.4 Mon. Nov. 14, 2016

5.4.1 Reading

Common Draft Model Employment Agreement Provisions (yellow-highlighted & footnoted)

5.4.2 Drafting-skills exercises

To be announced

5.4.3 Substantive exercises

To be announced

5.5 Wed. Nov. 16, 2016

5.5.1 Reading

Common Draft confidentiality provisions and their annotations

5.5.2 Drafting-skills exercises

To be announced

5.5.3 Substantive exercises

To be announced

5.6 Mon. Nov. 21, 2016

LAST DAY OF CLASS if we don't miss any days – this will be an all-review session

5.7 Wed. Nov. 23, 2016


5.8 Mon. Nov. 28, 2016

MAKEUP DAY (if necessary)

6 Course information

6.1 Contact information; computer use; email addresses

  • I can be reached at or (713) 364-6545 (which forwards to my cell); see also my About page.
  • Computer use in class is not just encouraged but required; you will need in-class Web access for some of the exercises (we will do some in-class drafting via an on-line chat room and/or a "virtual whiteboard"). If this will be a problem, be sure to contact me well in advance.
  • On the first class day I will be asking for your email addresses so that I can include it in a class Google Group. Please provide an email address that you check regularly.

6.2 Course goals, materials, assignments, etc.

6.2.1 Course goals

The goal of this course is to help students prepare for a type of assignment they will likely see throughout their careers: that of (sometimes) drafting, (very often) reviewing, analyzing, explaining, and negotiating contracts. Students will:

  • explore various legal- and business issues that might need to be addressed in various types of contract (see the list below);
  • study principles of plain-English drafting for contracts and other legal documents;
  • review the etiquette and ethics of contract negotiations;
  • survey some legal pitfalls that could lead to jail time for both clients and lawyers, such as backdating contracts, violating antitrust laws, failing to comply with Sarbanes-Oxley Act obligations, paying off foreign officials, etc.
  • discuss how to tactfully advise clients (and supervising lawyers) about their options, so as to earn a reputation as a deal-maker, not a deal-breaker;
  • compare and contrast the roles of outside- versus in-house counsel in contract negotiations;
  • consider ways of positioning the client for future litigation, just in case.

6.2.2 Course materials

As an experiment this semester, we will not use a course book per se; instead, we will make greater use of other materials available for free on-line, such as:

6.2.3 Course approach

We will take up various worksheets, exercises, and other assignments; I'm in the process of revising the order.

Homework assignments will be due on specified dates.

Each student should be prepared to answer all questions in the agenda for each class. (But don't worry, I won't embarrass you if you don't know an answer.)

6.2.4 Homework

We will work through a series of short homework- and in-class worksheets and other assignments; some will involve drafting, others will involve short answers. Some will be turned in, others not. I will generally mark up and return the turned-in assignments, but I normally won't grade them other than pass-fail, that is, either zero points or full points for that particular assignment, based on whether it has been timely turned in and appears to reflect a good-faith effort. I want your best effort on each assignment, but I understand and accept that you might not get it exactly right on the first try.

EXCEPTION: If a submitted assignment has serious problems that I judge could have been avoided by more-careful work, I reserve the right to deduct points.

WARNING: In one past class, a student got a (low) passing grade on the final exam, but failed the course because the student had turned in almost none of the assignments.

We will review each drafting assignment in a subsequent class, in many cases using group discussion.

6.2.5 Collaboration

Unless I say otherwise in a particular case, feel free to consult with your classmates in doing homework, worksheets, and other assignments, but each student is to do, and turn in, his or her own work. (That's how it often happens in law firms and companies.) If you do so, please indicate whom you consulted with, so that when I see similar- or identical work I’ll know it’s OK.

6.2.6 Deadlines

Worksheet homework and drafting assignments are to be turned as specified. I will accept submissions that, for good reason, are not terribly late, but I reserve the right to deduct up to 20% of the possible points for lateness.

6.3 Grading: 1,000 points

6.3.1 Required average

As required by law school policy for a writing class, grades will be adjusted proportionally so that the average of the final class grades (before any class-participation bump-up) falls between 3.0 and 3.4.

6.3.2 Final exam: 400 points

The "essay" part of the final exam will be take-home, open-book, open-notes. It should take roughly four to six hours to complete. It will consist mainly of (brief) essay questions along with a couple of drafting- and review problems.

The essay portion will be distributed no later than the end of the last class period and is due at the library two weeks later (exact date and time to be determined). Late exams will not be accepted without the specific approval of the Associate Dean. The library staff will time-stamp the exams as they are submitted. WARNING: One semester, several students showed up at the library desk 30 seconds before the deadline, but the library staff was busy and wasn’t able to time-stamp the exams until after the deadline had passed. Plan accordingly.

In addition, I hope to have part of the final exam consist of a timed series of true-false, multiple-choice, and short-answer questions to be done on the UH Blackboard system.

6.3.3 Two midterm quizzes (Sept. 14 and Oct. 5): 400 points total

We will have two, in-class,* midterm quizzes, each lasting about 20** minutes.

*  Style note: I used commas to separate the interchangeable adjectives in the phrase "two, in-class, midterm quizzes." See Comma Rule 2 at

*  Style note: I used the Arabic numerals “20” — not “twenty,” and *certainly not “twenty (20)” — to indicate the number of minutes.

The questions will be based pretty much entirely on the homework- and in-class assignments covered to date — but with some curve balls thrown in — so that the quizzes themselves serve as a reinforcing review that takes advantage of the testing effect.

The quizzes will be open-book, but it will behoove you to review all of the previous assignments in advance.

In preparing for the midterm quizzes and final exam, you might want to:

  • make flash cards from the worksheet questions and answers; and
  • work together to drill each other.

6.3.4 Homework (pass-fail): 100 points total

There will be up to 20 short homework assignments, graded pass-fail, each worth either 5 or 10 points.

6.3.5 Class attendance: 100 points

Because we will be doing a significant amount of in-class discussion and a significant number of in-class exercises,* in two- to four-person teams, it's important for each student to attend each class, not just for his or her own benefit, but so that his or her team won't be shorthanded.

* Note how it’s an AMOUNT of discussion (“discussion” is an uncountable noun) and a NUMBER of exercises (“exercises” is a countable noun); see the discussion.

ABA accreditation rules and school policy require attendance at 80% of the class meetings for each course. We have 27 class meetings; rounding to the nearest whole number of classes, a student must attend at least 22 class periods to comply with the 80% rule.

To reward students who attend class, a student who attends a minimum number of class periods will automatically earn points out of the 1,000-point total for the course, as follows:

26 to 27 100
24 to 25 50
23 or fewer 0

This means, of course, that students who miss more than two classes will have to do better in other areas to keep up with their classmates on the school-required grading curve.

EXCEPTION: I normally disregard absences for "official" law-school team travel, e.g., for moot-court competitions, etc., as long as I'm informed in advance.

When I see that all students are present, I don’t circulate a sign-in sheet; otherwise, I do, so that I can know who’s missing and have documentary evidence that the other students were present.

6.3.6 Class participation bump-up

As permitted by law-school policy, I will increase a student's grade by one-third of a grade level for outstanding class participation, e.g., from a B to a B-plus, assuming that this doesn't cause the class average to exceed the maximum permitted. Here's how it works administratively:

  • I send the Registrar a list with the final course grade for each exam number.
  • At the same time, I send the Registrar a list of the names of students who are to get a one-half grade increase for class participation, ranked in order of priority as subjectively and finally determined by me.
  • The Registrar then combines these two lists, implementing as many of one-half grade increases as will not cause the overall class average to to exceed the maximum.

I do not reduce grades for sub-standard class participation — but if you aren't here, you won't be earning the attendance points.

6.4 Office hours

I will be available for office hours from 5:30 (after the 4:00 p.m. class) until 7:30 p.m. (when that class starts). p.m. until Adjunct professors don't have offices at the school.

I'm happy to do office hours by appointment by Skype video or by phone.

I’m also pretty responsive to email questions — if I think your question might be of general interest, I'm very likely not to respond directly to you, but instead to email the question (without your name), and my response, to the whole class. (Note how I used commas for clarity in the last part of the previous sentense.)

6.5 Recording my lectures

I don't make audio recordings of my lectures, but I have no objection to students doing so and sharing the recordings with other UHLC students.

7 M&A major events & documents

  1. NDA / CDA
  2. Due diligence
  3. Initial offer / term sheet
  4. Due diligence
  5. Letter of intent
    • What's being bought
    • Price
    • Standstill (maybe)
    • No-shop (maybe)
    • NDA / CDA (maybe)
    • Obligation to negotiate in good faith (maybe)
    • Either party can withdraw at any time for any reason or no reason (usually)
    • Each party pays its own attorney fees
  6. (more) Due diligence
  7. M&A Agreement & ancillary stuff:
    • Disclosure Schedules
    • Resignation letters
    • Assignment documents
    • Certification documents
  8. Due diligence
  9. Closing:
    • Send money!
    • Resignations – officers, directors of Target
    • Contract assignments
    • Bring-down certificates