Basics of U.S. Contract Law

1. Basics of U.S. Contract Law David J. Mack Dorsey & Whitney LLP 51 West 52nd Street New York, New York 10019 P:212.415.9200 F:646.390.6575 http://www.dorsey.com/ mack.david@dorsey.com October 2011 ©2011 Dorsey & Whitney LLP. This presentation and the textual content hereof are intended for general information purposes only and should not be construed as legal advice or legal opinions on any specific facts or circumstances. An attorney-client relationship is not created or continued by reading this material. Dorsey & Whitney LLP will be pleased to provide further information regarding the matters discussed therein.

2. Table of Contents • Contracts Around the World • What is a Contract? • Do I Need a Written Contract? • Common Business Contracts • Elements of a Contract • Contract Enforceability • Negotiating a Contract • Drafting and Reviewing a Contract • Performing the Contract • Breach of Contract • Remedies for Breach

3. Contracts Around the World • The laws governing contracts vary throughout the world and can affect the legality, enforceability, performance requirements and even the available remedies for breach. • While there are often differences among the laws of the various countries, provinces or states, U.S. contract law concepts described in this presentation should be generally applicable to most situations around the world. • However, before you enter into any contract, make sure to consult with a qualified attorney in your local jurisdictions.

4. What is a Contract? • A contract is an agreement between two or more parties that creates an obligation on all parties to perform (or not perform) a particular action or set of related actions. • Contract law determines what makes a particular contract enforceable, and provides remedies when a contract is breached. • If you are not careful, a contract may not be enforceable when you want it to be, and may be enforceable when you don’t want it to be. • Working with a qualified attorney on all significant issues is the only certain way to make sure your contract works how you intend.

5. Do I Need a Written Contract? • Whether a contract exists depends on whether parties have reached a mutual agreement – which can be oral. • Generally a written contract is entered into to protect the parties against misunderstandings and to clarify the obligations and particular agreement between parties. • Contracts can cover a wide range of circumstances, both in business settings and personal relationships. Business contracts are varied and can cover all aspects of a business, including those with customers, employees, investors and business partners.

6. Do I Need a Written Contract? (1) the amount of money involved, (2) the value of the products or services involved, • the duration of the contract, • the risk of not entering into the contract, and • other factors specific to each case. The importance of having a detailed written contract depends on: Check with an attorney periodically about your business dealings to determine whether a contract is important, and if so, what it should look like.

7. Common Business Contracts There are dozens of different types of contracts. Selecting the type that best fits your intended agreement is a critical ‘art’. Below are a few common types of contracts for commercial businesses: • Sales/Service Contracts: spells out terms of sale of goods or services, payment terms, warranties, rights and obligations of parties; • Confidentiality/Non-Compete Contracts: protects confidential information of a business including client lists, inventions, trade secrets, and other important information. Non-compete provisions must be reasonable as to time, place and scope; and • Partnership Agreements: spells out the obligations between partners and their responsibilities with regard to the ownership and management of a business.

8. Other Types of Business Contracts Below is a list of other types of contracts that are commonly used in commercial businesses: • Equipment Lease • Franchise Agreement • Guaranty Agreement • Indemnification Agreement  • Joint Venture Agreement • Lease  • License Agreement • Loan Agreement • Manufacturing Contract • Merger Agreement • Non-Disclosure Agreement • Operating Agreement • Arbitration Agreement • Asset Purchase Agreement • Assignment Agreement • Bonus Agreement  • Collaboration Agreement • Consulting Agreement • Credit Agreement • Deferred Compensation Plan • Development Agreement • Distribution Agreement • Employee Stock Plan • Employment Agreement • Promissory Note • Repurchase Agreements • Sales Contract • Services Agreement • Shareholder Agreement • Stock Option Agreement • Stock Purchase Agreement • Supply Agreement • Trademark License Agreement • Underwriting Agreement • Voting Agreements • Waiver Agreement

9. Elements of a Contract • A legally enforceable contract requires the following:

10. Elements of a Contract: The Offer • An offer is a communication that gives therecipient the power to create a contractthrough his or her acceptance. • Offers must contain sufficient terms, such as price,quantity, quality, time and place of delivery, in order to determine the specific obligations to be created. • Once an offer is made, it may be accepted at any time until it expires by its terms or is expressly revoked.

11. Elements of a Contract: Acceptance • Acceptance is an offer recipient’s agreement to perform according to the terms of the offer, and the act of acceptance of a valid offer creates a binding contract. • Acceptance can be express (e.g., stating “I accept the deal”) or implied (e.g., paying for the goods or services offered for sale). • Some offers contain limitations on how and when the offer may be accepted, and the acceptance must conform to those limitations (e.g., an offer may include a time limit for responses and may require written acceptance).

12. Elements of a Contract: Contractual Intent • A binding contract requires a “meeting of the minds” of the parties, in that both intend to be bound to the same contractual terms. • Offers clearly made in jest or frustration likely lack the requisite intent to be valid offers. Similarly, general statements, such as advertisements, are not definite enough to be offers. • Acceptance of the offer must be clear and unambiguous. An offer cannot be partly accepted, or accepted with a caveat. A partial acceptance is actually a rejection and is considered a counter-offer on the new terms.

13. Elements of a Contract: Consideration • “Consideration” means something of value given by both parties to a contract that induces them to enter into the agreement to exchange mutual performances. For example, a promise to make a gift is not enforceable because it is one-sided. • Consideration is an essential element for the formation of a contract. It may consist of a promise to perform a desired act or a promise to refrain from doing an act that one is legally entitled to do. • Consideration must have a value that can be objectively determined. For example, a promise of love or affection is not enforceable because of the subjective nature of the promise.

14. Elements of a Contract: Governing Laws Contract law is governed by two main sources: • Common law, created by courts through the interpretation of prior facts and circumstances. This is the primary source of contract law in many countries, as courts generally interpret and define the other sources as well; and • Specific statutes in each jurisdiction, generally at the state level. For example, the Uniform Commercial Code (“UCC”) of each state in the United States governs contracts pertaining to the sale of goods in that state.

15. Contract Enforceability – Written or Oral Contracts Contracts may generally be written or oral, and both types may be equally binding. However, there are restrictions and dangers associated with oral contracts: • The Statute of Frauds is a common law principle that prevents enforcement of oral contracts relating to (1) the sale of land, (2) the sale of goods with a value in excess of a small number of dollars (e.g., $500), or (3) contracts that are unable to be fully performed within one year. • The terms of oral contracts may be impossible to prove, presenting difficulty in enforcement. Written contracts can reduce or eliminate confusion and are best to protect the interests of a business or individual. Oral contracts should be avoided!

16. Contract Enforceability – Bars to Enforcement • Contracting parties must have the capacity to contract, meaning they may not be: (1) minors; (2) under duress; (3) intoxicated; (4) mentally handicapped; or (4) pressured by outside forces in ways that deprive them of their free will. • A contract will not be enforced if the subject matter of the contract is illegal or contrary to public policy, such as contracts dealing with crimes. • A contract will not be enforced if it is “unconscionable”, meaning that no rational person would make that contract, and no fair or honest person would accept, the contract terms. These include contracts that are grossly unfair or against public policy.

17. Negotiating a Contract Begin contract negotiations with the following steps: • Understand what it is you want to accomplish with the contract and what the other party wants to accomplish; • Identify your position and the other party’s position (strengths vs. weaknesses); • Be prepared and provide room for negotiation; and • Bring solutions to the table – try to work towards resolution of disagreements rather than just butting heads! • Until a final definitive agreement is reached, all draft agreements, term sheets or letters of intent should clearly state the following: “This document is not intended to create or constitute any legally binding obligation between the parties hereto, and no party shall have any liability or obligation to another with respect to this document until a fully integrated definitive agreement is prepared, authorized, executed, and delivered by all parties.”

18. Negotiating a Contract: Other Considerations • In some circumstances, a party will insist on using its contract form and will not be willing to negotiate terms. This is called an “adhesion contract” and the other party will not be able to obtain the desired product or service unless it acquiesces to the form contract. Adhesion contracts may not be enforceable to the extent they contain unreasonable terms. • When dealing with government entities or political subdivisions such as cities and towns, be aware of legal requirements applicable to those entities, including public bidding requirements, fair wage laws, open door laws and others.

19. Drafting a Contract Once the basic outline of terms is negotiated, contract drafting may begin: • When given the opportunity, it is generally best to be the party that drafts the contract. • Advantages of “controlling the draft”: • Provides extra control over the negotiations; • Allows you to define the issues; • Prevents hidden or surprise issues; • Enables the deal to be structured onyour terms; and • Helps you influence the timing of thedrafting process.

20. Drafting a Contract: Basics • Consult with an Attorney! • Ambiguities in contract provisions are generally construed against the draftsman. • It is acceptable to begin drafting from a sample contract, but do not be controlled by or become overly reliant on its provisions – one size does not fit all! • Take the time to draft a contract that protects your interests and is clear and complete. For routine or recurring types of transactions, create a thorough but flexible form that allows easy selection of common options for terms.

21. Parties Effective Date Statement of Service Pricing Indemnities Representations and Warranties Performance Standards Remedies Risk Allocation Miscellaneous Provisions Governing Law and Dispute Resolutions Signatures Drafting a Contract: Major Elements

22. Reviewing a Draft Contract A draft contract or comments on a draft contract received from the other party should be carefully reviewed. • Review should include: • Careful reading of all contract terms; • Obtaining clarification on terms that appear ambiguous, confusing or vague; • Adding terms that are necessary to the transaction; • Confirmation that your important comments have been reflected in the draft; and • Final confirmation that your objectives are met by the contract before signing.

23. Performing the Contract • Once a valid contract is signed by all parties, its terms are binding on the parties, and they must fully perform their respective obligations that the contract requires. • Whatever is written in the contract becomes the complete agreement. • Make sure all terms are in the final contract, and be sure not to verbally agree to modify the terms. Verbal agreements to modify a written contract have all the problems of oral contracts and may or may not be enforceable.

24. Breach of Contract • A breach of contract occurs where a party to a contract fails to perform, precisely and exactly, that party’s obligations under the contract. This can happen in two ways: • Party states: “I will not perform the contract”; or • Actually not performing. • The non-breaching party may then take legal action against the breaching party for damages and other remedies. • Don’t knowingly breach a contract unless you have consulted with an attorney about the risks of such a breach!

25. Breach of Contract: What Now? • If you believe you or another party is in breach of a contract, consult with an attorney right away! • Contract breaches may be addressed in a variety of ways: • The parties may agree upon a waiver or amendment to eliminate the breach; • The non-breaching party may take the breaching party to court (or arbitration) in order to obtain damages and other remedies; or • The parties may agree to mediate a solution to the breach. • Consult with an attorney before taking any action, or you may lose some of your rights, and you may subject yourself to penalties as well.

26. Remedies for Breach • Upon proving that a party has breached a contract, a court may impose a variety of remedies to remedy the breach. • Types of possible remedies: • Monetary damage awards to compensate the non-breaching party; • Equitable remedies that will enable the contract to continue or prevent further breach; • Reformation of the contract to reflect the actual intent of the parties; or • An order to compel the breaching party to perform its actions under the contract. • Remedies are not exclusive, and generally multiple types of remedies may be awarded to the non-breaching party.

27. Remedies for Breach: Monetary Damages • The most common remedy for a breach of contract is a monetary award, which can come in many forms: • Compensatory – this award will compensate the non-breaching party for actual losses incurred from the breach; • Consequential – this award will cover damages that were suffered as a result of the breach, but not directly caused by it; • Expectation – this award will provide value equal to what should have been received had the breach not occurred; or • Nominal – this award is a small amount that recognizes a breach occurred but that it did not result in actual loss. • Damage awards for breach of contract may not be punitive (more than actual damages) unless the breaching party acted with recklessness, malice or deceit.

28. Remedies for Breach: Equitable Remedies • Courts may also award equitable remedies, which are designed to prevent or address a wrong when monetary damages are not appropriate or sufficient: • Injunction – a court can order a party to either continue performing or stop performing an action. A party seeking an injunction must show that there is no other sufficient remedy and that irreparable injury will result without the injunction; or • Specific Performance – a court may order a party to perform, as nearly as practicable, its performance as promised under the breached contract. This is not likely to be awarded unless monetary damages are inadequate, damages are impossible to determine or the subject of the contract is unique, such as in the sale of land. This remedy will never be granted against an individual when it would require him or her to personally perform services.

29. Useful Sites • Additional Information on Contracts • Lawyers.comhttp://contracts.lawyers.com • Sample Business Contracts • OneCLE Sample Business Contractshttp://contracts.onecle.com • FindLaw Sample Business Contractshttp://contracts.corporate.findlaw.com • General Business Assistance • Small Business Guidancehttp://www.allbusiness.com/ • Business Serviceshttp://www.legalzoom.com/

30. About Dorsey Some of the world’s most successful companies count on Dorsey to help them meet legal and business challenges. From life sciences and health to technology and energy, from financial services and investment banking to manufacturing and agribusiness, companies turn to Dorsey for assistance with legal issues that impact their business. Dorsey is a strong international firm with offices worldwide. USA » Anchorage » Delaware » Denver » Des Moines » Fargo » Minneapolis » Missoula » New York » Palo Alto » Salt Lake City » Seattle » Southern California » Washington, D.C. CANADA » Toronto » Vancouver EUROPE » London ASIA-PACIFIC » Hong Kong » Shanghai » Sydney

31. About Dorsey • With nearly 600 lawyers and 600 support staff, Dorsey is one of the 100 largest law firms in the United States. • Dorsey has 19 offices in the U.S., Europe and Asia-Pacific. The firm’s home base and its largest office is Minneapolis, with approximately 300 lawyers. • The firm offers services in more than 60 different areas of legal practice. • Dorsey represents more than one-third of the companies listed on the Fortune 100. • Dorsey represents more than half of the 100 largest public companies in Minnesota. • Dorsey was a 1993 charter signatory of the Law Firm Pro Bono Challenge, which asks firms to contribute 3% of billable hours to pro bono work. In 2010, Dorsey met the Challenge for the 18th consecutive year. • Dorsey was founded in 1912 when two prominent Minneapolis lawyers, one of whom was a sitting Minnesota Supreme Court justice, joined together to serve the area’s burgeoning business community. • Dorsey is a leader in Canadian cross-border, capital-markets transactions, as well as US securities work on India, China and Hong Kong offerings. • Both public and privately held companies depend on Dorsey for a full complement of corporate services. • Dorsey corporate attorneys are skilled in handling all varieties and sizes of corporate and commercial transactions and have significant experience with clients ranging from small start-ups to multi-national corporations. • Dorsey trial attorneys represent large corporations, medical institutions, small businesses, government entities, exempt organizations and individuals in all types of dispute resolution. • Dorsey intellectual property attorneys are skilled in technical fields and many hold advanced Ph.D. degrees.