THE CORPORATION LAW COMMITTEE OF THE
ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK
Sample Contract Boilerplate
Adopted March 2013
Attachment Formatted for “Cut and Paste”
This file is designed to accompany the Sample Contract Boilerplate report of the
Corporation Law Committee of the Association of Bar of the City of New York, and has been
formatted to enable users to “cut and paste” the provision. The Committee refers readers to the
limitations and commentaries in the reports and cautions users that these sample provisions,
despite being “boilerplate,” should be tailored to the needs of each individual contract.
Section 1. Interpretation.
Section 1.1. Rules of Construction.
(a) When a reference is made in this Agreement to an Article, a Section, an Exhibit
or a Schedule, such reference shall be to an Article of, a Section of, or an Exhibit or a
Schedule to this Agreement unless otherwise indicated.
(b) Whenever the words “include,” “includes” or “including” are used in this
Agreement or any other Transaction Document1, they shall be deemed to be followed by
the words “without limitation.”
(c) Whenever the word “or” is used in this Agreement, it shall not be deemed
exclusive.
(d) The words “hereof,” “herein” and “hereunder” and words of similar import
when used in this Agreement or any other Transaction Document shall refer to this
Agreement or such other Transaction Document, as the case may be, as a whole and not to
any particular provision of this Agreement or such other Transaction Document, as the case
may be.
(e) All terms defined in this Agreement shall have the defined meanings when used
in any other Transaction Document or in any certificate or other document made or
delivered pursuant hereto or thereto unless otherwise defined therein. The definitions
contained in this Agreement and any other Transaction Document are applicable to the
singular as well as to the plural forms of such terms and to the masculine as well as to the
feminine and neuter genders of such terms. Whenever the context requires, any pronouns
used herein shall include the corresponding masculine, feminine or neuter forms.
(f) Except as expressly stated in this Agreement, all references to any statute, rule,
regulation or form (including in the definition thereof) are to such statute, rule, regulation
1
NTD: Insert appropriate defined term from the underlying agreement.
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or form as amended, modified, supplemented or replaced from time to time (and, in the
case of any statute, include any rules and regulations promulgated under such statute), and
all references to any section of any statute, rule, regulation or form include any successor to
such section.
(g) Except as expressly stated in this Agreement, all references to any agreement
are to such agreement and include any exhibits, annexes and schedules attached to such
agreement, in each case, as the same is in effect as of the date of this Agreement and in the
case of any such agreement to which the parties are other than all of the parties to this
Agreement, without giving effect to any subsequent amendment or modification.
(h) All references to “$” or “dollars” mean the lawful currency of the United States
of America.
(i) Unless otherwise specified herein, all accounting terms used herein shall be
interpreted, all determinations with respect to accounting matters hereunder shall be made,
and all financial statements and certificates and reports as to financial matters required to
be furnished hereunder shall be prepared in accordance with United States generally
accepted accounting principles[, as consistently applied by the Company]. 2
(j) No specific provision, representation or warranty shall limit the applicability of
a more general provision, representation or warranty. It is the intent of the parties that each
representation, warranty, covenant, condition and agreement contained in this Agreement
shall be given full, separate, and independent effect and that such provisions are
cumulative.3
(k) The parties hereto have participated jointly in the negotiation and drafting of
this Agreement and the other Transaction Documents with the assistance of counsel and
other advisors and, in the event an ambiguity or question of intent or interpretation arises,
this Agreement and the other Transaction Documents shall be construed as jointly drafted
by the parties hereto and thereto, and no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship of any provision of this
Agreement or any other Transaction Document.
Section 1.2. Entire Agreement. This Agreement, the other Transaction Documents, the
Schedules hereto and thereto, and the other agreements included as exhibits hereto and thereto
constitute the entire agreement among the parties with respect to the subject matter hereof and
supersede all prior agreements and, understandings[, representations and warranties], both written
and oral, among the parties with respect to the subject matter hereof and thereof. In the event of a
conflict between the terms of this Agreement and the other Transaction Documents, the terms of
[this Agreement]4 shall govern.
2
NTD: Insert appropriate entity reference or delete the bracketed language.
3
NTD: A seller of goods or a business may wish to omit this paragraph.
4
NTD: Insert appropriate hierarchy indicating which agreement controls in the event of a conflict.
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Section 1.3. Headings. The table of contents and the headings contained in this
Agreement and the other Transaction Documents are for reference purposes only and shall not
affect in any way the meaning or interpretation of this Agreement or the other Transaction
Documents.
Section 1.4. Business Day Defined.
“Business Day” means any day except (a) a Saturday or Sunday or (b) any day on
which banks in the City of New York are authorized or required by Law or executive order
to be closed[; provided, however, that Lincoln’s Birthday (February 12) and Election Day
shall not be excluded from the definition of Business Day by virtue of this clause (b)].
Alternate formulation:
“Business Day” means any day except (a) a Saturday or Sunday or (b) a day on
which the New York Stock Exchange or the NASDAQ Stock Market is closed for trading.
Section 2. Notices. All notices and other communications hereunder shall be in writing and shall
be deemed duly given (a) on the date of delivery if delivered personally, (b) on the date sent by
[facsimile (with confirmation of transmission) or] electronic mail if sent during normal business
hours of the recipient during a Business Day, and otherwise on the next Business Day, if sent after
normal business hours of the recipient, provided that in the case of electronic mail, each notice or
other communication shall be confirmed within one Business Day by dispatch of a copy of such
notice pursuant to one of the other methods described herein, (c) if dispatched via a nationally
recognized overnight courier service (delivery receipt requested) with charges paid by the
dispatching party, on the later of (i) the first Business Day following the date of dispatch, or (ii) the
scheduled date of delivery by such service, or (d) on the fifth Business Day following the date of
mailing, if mailed by registered or certified mail, return receipt requested, postage prepaid to the
party to receive such notice, at the following addresses, or such other address as a party may
designate from time to time by notice in accordance with this Section.
If to [insert parties’ names and addresses]:
With a copy (which shall not constitute notice) to:
Section 3. Covenants.
Section 3.1. Fees, Costs and Expenses. Except as expressly provided otherwise in this
Agreement or any other Transaction Document, all fees, costs and expenses incurred in connection
with this Agreement and the other Transaction Documents and the transactions contemplated
hereby and thereby (collectively, the “Transactions”) shall be paid by the party incurring such
fees, costs and expenses, whether or not the Transactions are consummated. In the event of
termination of this Agreement or any other Transaction Document, the obligation of each party to
pay its own fees, costs and expenses will be subject to any rights of such party arising from a
breach of this Agreement or any other Transaction Document by any other party.
Section 3.2. Further Assurances. From and after the [date hereof or the Closing Date
for agreements with a deferred closing], the parties shall do or cause to be done all such reasonable
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acts and things as may be necessary, proper or advisable, consistent with all applicable Laws,5 to
make effective the Transactions. Without limiting the foregoing, each party shall execute and
deliver, or cause to be executed and delivered, such further documents and instruments, in each
case as may be necessary or proper and reasonable to carry out the provisions and purposes of this
Agreement and the other Transaction Documents.
Section 3.3. Time Is of the Essence. Time is of the essence in the performance of the
Transactions.
Section 3.4. Publicity and Reports. Each party agrees that, except as otherwise required
by Law,6 it will not issue any reports, statements or releases, in each case relating to the
Transactions, without the prior written consent of the other parties hereto, which consent shall not
unreasonably be withheld or delayed. To the extent disclosure is required by Law, the nondisclosing party shall have the right to review any report, statement or release as promptly as
possible prior to its publication and to reasonably consult with the disclosing party with respect to
the content thereof.
Section 3.5. Confidentiality.
(a) Except as provided in paragraph (b) below, each of the parties hereto shall keep
confidential, and not disclose or use for a purpose other than the Transaction, any
confidential and proprietary information of any other party hereto (the “Protected Party”),
including this Agreement and all of the terms and conditions hereof (collectively,
“Confidential Information”).
(b) Paragraph (a) hereof shall not restrict a party from disclosing Confidential
Information (subject to the limitations of applicable Law): (i) to the extent consented to by
the Protected Party, (ii) to the extent required by a discovery request in a court, arbitration
or administrative proceeding; provided, that such party shall have first provided the
Protected Party with prompt written notice of such discovery request so that the Protected
Party may seek a protective order or other appropriate remedy, and in the event such
protection or other remedy is not obtained, such party shall exercise commercially
reasonable efforts to obtain assurance that confidential treatment will be accorded to such
Confidential Information, (iii) to accountants, auditors, attorneys and tax or financial
advisors who have been informed of and have agreed with such party to abide by the terms
of this Section, or who are otherwise bound by confidentiality obligations with such party
and (iv) to the extent necessary to enforce such party’s rights under this Agreement.
Section 4. Amendments and Modifications.
Section 4.1. Amendments. This Agreement may be amended, superseded, canceled,
renewed or extended only by a written instrument signed by each of the parties hereto.
5
NTD: Insert the appropriate defined term from the underlying agreement.
6
NTD: If the definition of “Law” in the underlying agreement does not include stock exchange or regulatory
requirements, those provisions should be expressly added here.
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Section 4.2 Waiver. A party may by written instrument signed on behalf of such party:
(a) extend the time for the performance of any of the obligations or other acts of another party due
to it, (b) waive any inaccuracies in the representations and warranties made to it contained in this
Agreement or any Transaction Document, or (c) waive compliance with any covenants,
obligations, or conditions in its favor contained in this Agreement or in any Transaction
Document. No claim or right arising out of this Agreement or any Transaction Document can be
waived by a party, in whole or in part, unless made in a writing signed by such party. Neither any
course of conduct or dealing nor failure or delay by any party in exercising any right, power, or
privilege under this Agreement or any of the Transaction Documents will operate as a waiver of
such right, power, or privilege, and no single or partial exercise of any such right, power, or
privilege will preclude any other or further exercise of such right, power, or privilege or the
exercise of any other right, power, or privilege. A waiver given by a party will be applicable only
to the specific instance for which it is given.
Section 5. Parties.
Section 5.1. Binding Effect; Assignment. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and permitted assigns.
Neither this Agreement, nor any right, duty or obligation of any party hereunder, may be assigned
or delegated by any party (in whole or in part) [without the prior written consent of the other
parties hereto].7 Any purported assignment of rights or delegation of obligations in violation of
this Section will be void. References to a party in this Agreement and in any Transaction
Document also refer to such party’s successors and permitted assigns.8
Section 5.2. No Third-Party Beneficiaries. [Except as set forth in Section __ hereof,]9
nothing in this Agreement is intended or shall be construed to give any person, other than the
parties hereto, their successors and permitted assigns, any legal or equitable right, remedy or claim
under or in respect of this Agreement the Transaction Documents or any provision contained
herein or therein.
Section 5.3 Relationship of the Parties/No Fiduciary Duties. The parties shall perform
all obligations under this Agreement as independent contractors, and nothing contained in this
Agreement shall be deemed to create any association, partnership, joint venture, or relationship of
principal and agent or master and servant between the parties to this Agreement or any affiliates or
subsidiaries thereof, or to provide either party with the right, power or authority, whether express
or implied, to create any such duty or obligation on behalf of the other party.
Section 5.4. No Recourse Against Nonparty Affiliates. All claims, obligations,
liabilities, or causes of action (whether in contract, common or statutory law, equity or otherwise)
7
NTD: Insert the agreed-upon standard for assignment.
8
NTD: There may be reasons not to include successors and permitted assigns in place of original references to
a party, such as in a personal services contract.
9
NTD: Certain types of Agreements will typically include indemnification provisions in favor of persons who
are not party to the Agreement. Consider whether indemnified persons should be expressly excepted so that
they may enforce the indemnification provisions of the Agreement.
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that arise out of or relate to this Agreement or any other Transaction Document, or the negotiation,
execution, or performance of this Agreement or any other Transaction Document (including any
representation or warranty made in, in connection with or as an inducement to this Agreement or
any other Transaction Document), may be made only against the parties that are signatories to this
Agreement or such other Transaction Document, as the case may be (“Contracting Parties”). No
Person who is not a Contracting Party, including any officer, employee, member, partner or
manager signing this Agreement, the Transaction Documents or any certificate delivered in
connection herewith or therewith on behalf of any Contracting Party (“Nonparty Affiliates”) shall
have any liability (whether in contract, tort, common or statutory law, equity or otherwise) for any
claims, obligations, liabilities or causes of action arising out of, or relating in any manner to, this
Agreement or any other Transaction Document or based on, in respect of, or by reason of this
Agreement or any other Transaction Document or the negotiation, execution, performance, or
breach of the Agreement or any other Transaction Document; and, to the maximum extent
permitted by law, each Contracting Party hereby waives and releases all such liabilities, claims,
causes of action, and obligations against any such Nonparty Affiliates.
Section 6. Dispute Resolution and Remedies.
Section 6.1. Governing Law. This Agreement, the other Transaction Documents, and any
dispute, controversy or proceeding arising out of or relating to this Agreement, the other
Transaction Documents, or the Transactions or the subject matter hereof or thereof or the
relationship among the parties hereto or thereto in connection herewith or therewith (in each case
whether in contract, tort, common or statutory law, equity or otherwise) shall be governed by the
substantive laws of the State of New York [without regard to conflict of law principles thereof or
of any other jurisdiction that would cause the application of laws of any jurisdiction other than
those of the State of New York].
Section 6.2. Exclusive Forum in Designated Courts. Any dispute, controversy,
proceeding or claim arising out of or relating to: (i) this Agreement or any other Transaction
Document, or any of the Transactions or the subject matter hereof or thereof, (ii) the breach,
termination, enforcement, interpretation or validity of this Agreement, or any other Transaction
Document, including the determination of the scope or applicability of this agreement to arbitrate,
or (iii) the relationship among the parties hereto or thereto, in each case, whether in contract, tort,
common or statutory law, equity or otherwise (collectively, a “Dispute”), shall be brought
exclusively in either (x) the United States District Court for the ________ District of New York, to
the extent that such court has subject matter jurisdiction, or (y) the Commercial Division of the
Supreme Court of the State of New York in the County of ________ (or if such court lacks subject
matter jurisdiction, in the courts of the State of New York in the County of _______) (the
“Designated Court”). Each of the parties hereto hereby irrevocably submits with regard to any
such action or proceeding for itself and in respect of its property, generally and unconditionally, to
the personal jurisdiction of the Designated Court and agrees that it will not bring any action
whether in tort, contract, common or statutory law, equity or otherwise arising out of or relating to
this Agreement or any other Transaction Document or any of the Transactions or the subject
matter hereof or thereof in any court other than the Designated Court. Each of the parties hereto
hereby irrevocably waives, and agrees not to assert as a defense, counterclaim or otherwise, in any
action or proceeding with respect to this Agreement or any other Transaction Document, (a) any
claim that it is not personally subject to the jurisdiction of the Designated Court, (b) any claim that
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it or its property is exempt or immune from jurisdiction of the Designated Court or from any legal
process commenced in such Designated Court (whether through service of notice, attachment prior
to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise), and
(c) to the fullest extent permitted by applicable Law, any claim that (i) the suit, action or
proceeding in such Designated Court is brought in an inconvenient forum, (ii) the venue of such
suit, action or proceeding is improper, or (iii) this Agreement, any other Transaction Document, or
the subject matter hereof or thereof, may not be enforced in or by such Designated Court.
Alternate Section 6.2. Arbitration; Dispute Resolution.
(a) Exclusive Dispute Resolution.10 Any dispute, controversy, proceeding or claim
arising out of or relating to: (i) this Agreement or any other Transaction Document, or any
of the Transactions or the subject matter hereof or thereof, (ii) the breach, termination,
enforcement, interpretation or validity of this Agreement, or any other Transaction
Document, including the determination of the scope or applicability of this agreement to
arbitrate, or (iii) the relationship among the parties hereto or thereto, in each case, whether
in contract, tort, common or statutory law, equity or otherwise (collectively, a “Dispute”)
may only be resolved by arbitration as provided in this Section. No party hereto shall
commence any litigation with respect to a Dispute except as expressly set forth in this
Section and Section [cross reference to specific performance section if judicially ordered
equitable remedies are preserved].
(b) Arbitration. To resolve a Dispute, any party hereto may commence an
arbitration to be administered by [insert name of private arbitration firm] pursuant to its
[insert description of rules of the selected arbitration firm]. The arbitration shall be
conducted before a single arbitrator, in New York, New York, and in accordance with the
[consider inserting a reference to any special or expedited rules of the arbitration firm.] In
the event of a conflict between the rules of the selected arbitration firm and this Agreement,
the terms of this Agreement shall govern. The decision of the arbitrator shall be final,
binding on the parties hereto, and not subject to further review.
[Optional Provision: (c) Prevailing Party Fees. In any arbitration of a Dispute, the
arbitrator shall award to the prevailing party, if any, the costs and attorneys’ fees
reasonably incurred by the prevailing party in connection with the arbitration. If the
arbitrator determines a party to be the prevailing party under circumstances where the
prevailing party won on some but not all of the claims and counterclaims, the arbitrator
may award the prevailing party an appropriate percentage of the costs and attorneys’ fees
reasonably incurred by the prevailing party in connection with the arbitration. In the event
that litigation is commenced to enforce an arbitration award, the prevailing party shall be
entitled to recover reasonable attorneys’ fees and costs whether or not such action proceeds
to judgment.]
(d) Judgment on Award. Judgment upon any award rendered by the arbitrator may
be entered in any court having jurisdiction. Without limiting the foregoing, each party
10
NTD: The draftsperson may wish to preserve judicially ordered equitable remedies, in which case the
provision should begin: Except as provided in Section [cross reference to specific performance section].
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consents to the non exclusive jurisdiction of (x) the United States District Court for the
________ District of New York, or (y) the Courts of the State of New York, _______
County (the “Designated Court”), to render judgment on an award. Each of the parties
hereto hereby irrevocably submits with regard to any such action or proceeding for itself
and in respect of its property, generally and unconditionally, to the personal jurisdiction of
the Designated Court. Each of the parties hereto hereby irrevocably waives, and agrees not
to assert as a defense, counterclaim or otherwise, in any action or proceeding to enforce an
arbitration award rendered pursuant to this Agreement, (a) any claim that it is not
personally subject to the jurisdiction of the Designated Court, (b) any claim that it or its
property is exempt or immune from the jurisdiction of the Designated Court or from any
legal process commenced in such Designated Court (whether through service of notice,
attachment prior to judgment, attachment in aid of execution of judgment, execution of
judgment or otherwise), and (c) to the fullest extent permitted by applicable Law, any claim
that (i) the suit, action, or proceeding in such Designated Court is brought in an
inconvenient forum, (ii) the venue of such suit, action or proceeding is improper, or (iii)
such arbitration award may not be enforced in or by such Designated Court.
[Optional Provision (e) Dispute Confidentiality. [In addition to the requirements
of Section [insert cross reference to any confidentiality provision],] no party shall directly
or indirectly make any disclosure with respect to a Dispute or the resolution of a Dispute,
except to such party’s legal counsel, to persons who will be witnesses or experts in
connection with an arbitration and to the arbitration panel formulated pursuant to this
Section, and except to the extent required by applicable Law. Each of the parties hereto
acknowledges that the other parties hereto shall have no adequate remedy at law for breach
of the provisions of this paragraph (e) and the harm to the other parties that will result from
the disclosure of a Dispute. Therefore, each party agrees that the other parties shall be
entitled to injunctive relief to enforce the provisions of this paragraph (e).]
Section 6.3. Consent to Service of Process. Each of the parties hereto hereby irrevocably
and unconditionally consents to service of process in the manner provided for notices in Section
___ and agrees that nothing in this Agreement or any other Transaction Document will affect the
right of any party hereto to serve process in any other manner permitted by applicable Law.
Section 6.4. Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES
THAT ANY DISPUTE11 IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE IT KNOWINGLY, VOLUNTARILY, INTENTIONALLY,
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY DISPUTE.
Section 6.5. Specific Performance. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not performed in accordance
with their specific terms and that monetary damages, even if available, would not be an adequate
remedy therefor. It is accordingly agreed that the parties shall be entitled to specific performance
of the terms hereof, this being in addition to any other remedy to which they are entitled at law or
11
NTD: This is referencing the term “Dispute” defined in Section 6.2.
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in equity. The parties acknowledge that the awarding of equitable remedies is within the discretion
of the applicable court.
Section 6.6. Remedies Cumulative. The rights and remedies of the parties are
cumulative and not alternative.
Section 7. General Enforceability.
Section 7.1. Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original copy of this Agreement and all of
which, when taken together, will be deemed to constitute one and the same agreement.
Section 7.2. Signatures/E-delivery. A manually signed copy of this Agreement or any
other Transaction Documents delivered by facsimile, email or other means of electronic
transmission shall be deemed to have the same legal effect as delivery of an original signed copy
of this Agreement. No legally binding obligation shall be created with respect to a party until such
party has delivered or caused to be delivered a manually signed copy of this Agreement.
Section 7.3. Reproduction of Documents. This Agreement, the other Transaction
Documents, and all certificates and documents relating hereto and thereto, including, without
limitation, (i) consents, waivers and modifications that may hereafter be executed, (ii) documents
received by each party pursuant hereto, and (iii) financial statements and other information
previously or hereafter furnished to each party, may be reproduced by each party by electronic
digital storage, computer tapes, photographic, photostatic, optical character recognition, microfilm,
microcard, miniature photographic or other similar process, and each party may destroy any
original document so reproduced. All parties hereto agree and stipulate that any such reproduction
shall be admissible in evidence as the original itself in any judicial, arbitration or administrative
proceeding (whether or not the original is in existence and whether or not such reproduction was
made by each party in the regular course of business) and that any enlargement, facsimile or
further reproduction of such reproduction shall likewise be admissible in evidence.
Section 7.4. Force Majeure. No party shall be liable to another party, nor be deemed to
have defaulted under or breached this Agreement or any other Transaction Document, for any
failure or delay in fulfilling or performing any term of this Agreement or any other Transaction
Document due to any of the following causes beyond such party’s reasonable control (such causes,
“Force Majeure Events”): (i) acts of God, (ii) flood, fire or explosion, (iii) war, invasion, riot or
other civil unrest, (iv) actions, embargoes or blockades in effect on or after the date of this
Agreement, [(v) action by any Governmental Authority,12] (vi) national or regional emergency,
(vii) strikes, labor stoppages or slowdowns or other industrial disturbances, (viii) shortage of
adequate power or transportation facilities, or (ix) any other event that is beyond the reasonable
control of such party. The lack of funds shall not be deemed to be a Force Majeure Event. The
party suffering a Force Majeure Event shall give notice within [X] days of the Force Majeure
Event to any other party to which performance is owed, stating the period of time the occurrence is
expected to continue, and shall use diligent efforts to end the failure or delay and ensure that the
effects of such Force Majeure Event are minimized.
12
NTD: Insert appropriate defined term from the underlying agreement.
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Section 7.5. Severability.
(a) If any provision of this Agreement or any other Transaction Document is
determined to be invalid, illegal or unenforceable, the remaining provisions of this
Agreement and the other Transaction Documents shall remain in full force, if the essential
terms and conditions of this Agreement and the other Transaction Documents for each
party remain valid, binding and enforceable. [Furthermore, in lieu of any such invalid or
unenforceable term or provision, the parties hereto intend that there shall be added as a part
of this Agreement a provision as similar in terms to such invalid or unenforceable provision
as may be possible and be valid and enforceable.]
(b) Any provision of this Agreement or any other Transaction Document held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity, illegality or unenforceability without affecting
the validity, legality and enforceability of the remaining provisions hereof or thereof; and
the invalidity of a particular provision in a particular jurisdiction shall not invalidate such
provision in any other jurisdiction.
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