Drafting Corporate and Commercial Agreements

849 Pages·2005·2.12 MB·English

by  Rodney D. Ryder

Corporate
and
Commercial
Agreements
Drafting Guidelines,
Forms and Precedents
RODNEY D. RYDER
Detailed Contents vii
GENERAL CONTENTS
• Preface v
• Detailed Contents ix
• Table of Cases xvii
1. DRAFTS, FORMS, PRECEDENTS—A PRELIMINARY NOTE 2
2. COMPANY LAW: FORMS AND PRECEDENTS 41
3. GENERAL COMMERCIAL AGREEMENTS 101
4. INTELLECTUAL PROPERTY 369
5. FRANCHISE AGREEMENTS 515
6. PROJECT FINANCE 539
7. DEEDS 660
8. BONDS 679
9. PLEDGES 704
10. ARBITRATION 715
11. LEASE 727
12. TRUST 764
13. SOCIETY 794
14. POWER OF ATTORNEY 808
• Subject Index 812
vii
DETAILED CONTENTS
• Preface v
• General Contents vii
• Table of Cases xvii
CHAPTER 1
DRAFTS, FORMS, PRECEDENTS—
A PRELIMINARY NOTE
DEED DRAFTING AND CONVEYANCING IN INDIA 2
FORMS OF CONVEYANCE 3
Deeds poll 3
Indentures bilateral 3
Simple words 3
PARAGRAPHS, PUNCTUATION AND CAPITALS 4
FIGURES AND WORDS 4
General requirements of deed of transfer 4
DIVISION OF DEED 5
(a) Description of the deed 5
(b) Date 5
(c) Parties to the deed 6
(d) Recitals 13
Caution 14
ORDER OF RECITALS 14
FORM OF RECITALS 15
(e) Testatum 15
(f) Consideration 15
(g) Receipt 15
(h) Operative words 16
(i) Parcels 16
(j) Exceptions and reservations 19
(k) Habendum 19
(l) Covenants and undertakings 19
(m) Testimonium 20
(n) Signatures and attestation 20
Sign 21
FORMS OF ATTESTATION 22
Illiterate persons 22
Delivery 22
ERRORS AND OMISSIONS 23
POSTSCRIPT 23
ENDORSEMENT AND SUPPLEMENTAL DEEDS 23
FORM OF ENDORSEMENT 23
FORM OF SUPPLEMENTAL DEED 24
ix
x Corporate and Commercial Agreements
STAMP DUTY BY WHOM PAYABLE 24
STAMP DUTY ON ENDORSEMENTS AND SUPPLEMENTAL DEEDS 24
REGISTRATION 25
PRECAUTIONS 25
Rules of Construction Deeds 26
NOTES ON THE INDIAN LAW OF CONTRACT 27
Introduction 27
General Concepts 28
Breach 29
Excuses for non-performance 30
Indemnity and Guarantee 30
Bailments and Pledges 30
Bona fide Purchases 31
Interpretation of Contracts and Applicable Law 31
Capacity to Contract 32
Formal Requirements 32
Written Agreements 32
Commencement 34
CONTRACT DRAFTING AND CONTRACT MANAGEMENT 34
Engagement Phase 35
Analytical Phase 35
Drafting Phase 35
Execution Phase 36
Contract Administration Phase 36
TYPES OF CONTRACTS 36
CONTRACTS 36
DATA COLLECTION DURING THE ENGAGEMENT PHASE 36
Check-list 36
STANDARD CLAUSES CHECKLIST 37
CHAPTER 2
COMPANY LAW: FORMS AND PRECEDENTS
TYPES OF COMPANIES 41
Public and Private Companies 41
Formation procedure (private limited company) 41
PRECEDENTS
• Application Form for availability of names 44
• Memorandum of Association 45
• Articles of Association 59
• Legal Due Diligence 70
• Due Diligence Report 74
CHAPTER 3
GENERAL COMMERCIAL AGREEMENTS
PRECEDENTS
• Contract of Employment—(For A Junior Level Employee) 101
• Contract of Employment—(For A Senior Level Employee) 104
Detailed Contents xi
• Employee Innovation And Proprietary Information Agreement 109
• Consultancy Agreement 111
• Consulting Services Agreement 115
• Termination Clause 154
• Consultant’s Non-disclosure & Non-compete Agreement 159
• Agency Agreement 163
• Supply Contract 165
• Software Services Supply Agreement 171
• ERC Facilities Agreement 181
• Facilities Sharing Agreement 191
• Financial Collaboration Agreement 196
• Marketing Assistance Agreement 206
• Office Refurbishment Agreement 218
• Research And Development Agreement 239
• Agreement for sale made by a vendor in favour of purchaser, the purchaser
to execute a mortgage deed for balance of purchase money 251
• Agreement extending the time for completion of a purchase and otherwise
modifying terms of the contract supplemental to the original contract 252
• Agreement for sale of property with usual provisions 253
• Exclusive Reseller Agreement 254
A GUIDE TO DRAFTING JOINT VENTURE DOCUMENTATION 271
• Joint Venture Agreement 275
• Company, Management and Project 285
• Shareholders’ Agreement 295
• Shareholders’ Agreements and the Articles of Association 316
• Share Transfer Agreement 319
• Transfer of Shares (Specimen Clause) 331
• Share Acquisition and Reconstruction Agreement 337
• Transfer of Undertaking Agreement 347
• Subscription Agreement 354
CHAPTER 4
INTELLECTUAL PROPERTY
ASSIGNMENT OF COPYRIGHT 369
Disputes as to Assignment 371
Infringement 371
“PASSING OFF” ACTIONS UNDER INDIAN LAW 374
The history of passing off actions under English Common Law 374
Modern formulation of the law of passing off 375
Remedies 376
Proof of damage 376
Means adopted for passing off 377
Passing off in professional practice 377
“Passing off” in Indian Courts: Remedies available 378
Mareva Injunctions in India 379
PRECEDENTS 380
On Trademark and Brand Protection
• Trademark License Agreement 380
xii Corporate and Commercial Agreements
• Trade Name License Agreement 386
• Deed of Assignment 392
On Copyright (Media Entertainment)
• Writer Employment Agreement 394
• Sound Recording and Distribution License Agreement 398
• Co-production Agreement 405
• Deed of Assignment of Copyright 409
• Dialogue and Vocal Replacement Agreement 411
• Actor Employment Agreement 425
• Memorandum of understanding between two Media Companies 430
• Patent Agreement for Employees 442
• Patents, Patent Licensing and Protection in India 443
• Technology Transfer and License Agreement 446
• Technology and Marketing Collaboration Agreement 460
• Assignment of Rights in Invention 483
• Technology Assignment Agreement 484
On Confidentiality and non-disclosure
• Know-How Assignment Agreement 487
• Confidentiality Agreement (Between A Company and an individual) 492
• Confidentiality Agreement - Both party obligations 496
• Consultancy Agreement 499
• Confidentiality and Non-discloser Agreement 503
• Employees non-disclosure and non-compete agreeement 506
• Non-disclosure and non-compete agreeement 509
CHAPTER 5
FRANCHISE AGREEMENTS
OUTLINING THE SPHERE OF LAW RELATING TO FRANCHISE 515
Direct Franchising 515
Franchising through Subsidiary or Branch Office 516
Area Development Agreement 516
Master Franchising Agreement 516
Franchising through Joint Venture 516
PRECEDENTS
• Franchise Agreement 517
• Draft Version of Franchise Agreement 521
• Franchising Agreement 526
CHAPTER 6
PROJECT FINANCE
THE RISK MATRIX 539
DUE DIGILENCE 542
SECURITY 542
FORCE MAJEURE 543
WHEN THINGS GO WRONG 544
Contract Damages 544
Liquidated Damages 544
Detailed Contents xiii
CONCLUSION 545
POWER PURCHASE AGREEMENTS - PITFALLS AND REMEDIES 545
Definitions 546
Tariff 546
Counter Guarantee 547
Financing 547
Price Mechanism 548
Pricing Risk 548
Payment Risk 548
Third Party Sale 549
Tax Holidays 549
Judicial Inquiry 549
Force Majeure 549
Conclusion 550
FUEL SUPPLY AGREEMENT - BANKABLE OFFTAKES 550
Infrastructure 551
Pricing 551
Payment 551
Force Majeure 551
Dispute Resolution 551
Transportation 552
Scheduling; Metering and Weighing 552
Quality and Rejection 552
Default 552
Remedies for Breach 553
DUE DILIGENCE 553
TYPICAL DUE DILIGENCE DELIBERATIONS IN A PROJECT
FINANCING STRUCTURE 554
The Project Sponsor 554
The Site of The Project 554
Political, Economical & Legal Considerations 554
Financial Parameters 554
Construction Commitments 554
Input Agreements 555
Off-take Agreements 555
General Contract Review 555
Environmental Considerations 555
Critique 555
PRECEDENTS 556
CHAPTER 7
DEEDS
PRECEDENTS
• Assignment of Business with Goodwill and Tenancy Rights 660
• Assignment of Simple Contract Debts 663
• General Power of Attorney 664
• Special Power of Attorney in respect of entering into and concluding
one Transaction 670
xiv Corporate and Commercial Agreements
• Special Power of Attorney for Admitting Execution before Sub
Registrar of Document already executed 672
• Release and Indemnities 673
• Guarantees 673
• Guarantee, Deposit and Charge as Security for Advances to a Third Person 674
• Agreement of Reference – To Arbitration 676
CHAPTER 8
BONDS
FORM 679
USE OF BONDS 679
HEIRS AND REPRESENTATIVES 680
TWO RATES OF INTEREST 680
STAMP DUTY 681
REGISTRATION 681
PRECEDENTS
• Simple Money Bond for money borrowed 681
• Simple Money Bond, for Money due with Recitals 681
• Instalment Bond 682
• Equated Instalments Bond 682
• Bond by a Debtor and his Surety for a Loan 683
• Bond by a Debtor and his Surety for an Existing Liability 683
• Instalment Bond, with Surety, for an Existing Liability (in the form of a deed) 683
• Bond with Sureties for a Loan Repayable in Equated Instalment with
Hypothecation of Property (in the form of a deed) 684
• Bond with Sureties for Loan (in the form of a deed) with Provision for
lower Rate of Interest in case of Punctual Payments 685
• Administration Bond by a Person Obtaining Letters of Administration
(section 291, Succession Act) 686
• Security Bond given for the Grant of a Succession Certificate (section 375,
Succession Act) 687
• Administration Bond by Guardian Appointed under the Guardians and Wards Act 687
• Security Bond by a Debtor (under section 21, Provincial Insolvency Act) 688
• Security Bond by a Receiver Appointed in a Suit: Order 40, Rule 3(a), C.P.C. 688
• Cash Security Bond by an Employee of Government (in the Form of Agreement) 689
• Personal Security Bond by an Employee, with Sureties, Pending the
Execution of a Hypothecation Bond 690
• Security Bond by Sureties on behalf of a Claimant to Money due from
Government to his Deceased Ancestor 691
• Security Bond by Surety of the Manager of an Estate (Hypothecating Property) 692
• Security given by a Legatee under a Lost Will to a Purchaser of
Bequeathed Property (with Hypothecation) 693
• Security Bond with two Sureties, the Principal Agreeing to Deposit Cash
Security by Monthly Deduction from Pay 694
• Bond by Sureties of a Student Admitted to a College to Secure the
Performance of an Agreement 695
• Bond by Surety for Due Observance by Another of Terms of Partnership Deed 696
• Bond by a Trainee (if minor, by his Guardian) with Sureties 697
Detailed Contents xv
• Performance Guarantee Bond 697
• Deed of Indemnity 699
• Indemnity Bond 700
CHAPTER 9
PLEDGES
“PLEDGE”, “PAWNOR AND “PAWNEE” DEFINED 704
DOCUMENTS AND SECURITIES 704
PRECEDENTS
• Pledge Deed 705
• Pledge of Term Deposit as Additional Security for NCDs subscribed
by Beta Bank 713
CHAPTER 10
ARBITRATION
DISPUTE SETTLEMENT: ALTERNATE DISPUTE RESOLUTION 715
DRAFTING AN ARBITRATION AGREEMENT/CLAUSE 715
Arbitration Agreement 716
Judicial Analysis 717
Halsbury’s Laws 719
A brief epilogue 719
INTERNATIONAL COMMERCIAL ARBITRATION 719
Advantages of alternative dispute resolution 720
Disadvantages of alternative dispute resolution 720
ENFORCEMENT OF ARBITRAL AWARDS 721
Detrimental Reliance 721
ARBITRATION CLAUSE 722
DAMAGES IN ARBITRATION 725
CHAPTER 11
LEASE
PARTIES 727
CONSIDERATION 727
COVENANTS ENTERED INTO BY THE LESSEE 727
COVENANTS BY THE LESSOR 728
PROVISO FOR RE-ENTRY 728
AGREEMENT OF LEASE 728
PRECEDENTS
• Agreement of Lease 731
CHAPTER 12
TRUST
THE GOVERNING LEGISLATION 764
The Nature of an Indian Trust 764
Requirements of a Trust 765
xvi Corporate and Commercial Agreements
Trust deed 766
Complete constitution of a trust 766
Legislation relating to trusts 766
Trustees 767
Trustees’ Duties 768
REGULATORY ENVIRONMENT AND LIMITATION ON TRUSTS 770
Courts 770
Breach of Trust 772
Limitation on trusts 773
Perpetuities and accumulations 773
Remuneration 773
Exoneration clauses 774
Public policy 774
Who can act as a trustee? 775
REASONS FOR THE CREATION OF TRUSTS AND THEIR USES 775
Personal or Private Trusts 775
Pension and employee benefits 776
Collective investment schemes 776
Charities 776
Non-Charitable Purpose Trusts 777
CONCLUSION 777
PRECEDENTS
• Agenda of meeting of Board of Trustees 777
• Appointment of additional members to Board of Trustees 778
• Deed of Family Trust Settlement 779
• Rules and Regulations Governing the Management of “Nature For Children” 784
• Trust Deed 788
• Alteration of A Trust Deed 793
CHAPTER 13
SOCIETY
794
CHAPTER 14
POWER OF ATTORNEY
DEFINITION 808
ELEMENTS OF POWER OF ATTORNEY 808
PRECEDENTS 809
• Irrevocable Power of Attorney 809
• Power of Attorney – 1 810
• Power of Attorney – 2 811
• Subject Index 812