Corporate & Securities Law

?Dated for Reference?

By Ken Adams

I often come away from a seminar having learned something new.

For example, a participant at my recent Vancouver seminar asked me what I thought of the phrase dated for reference, as used in the introductory clause. I confessed that I hadn?t previously encountered it.

After I arrived home, I searched on Lexis for use of the phrase in the ?material contracts? filed on the SEC?s EDGAR database. It?s used infrequently, at least in the U.S.?dated for reference and the variant dated for reference purposes only occur in only 109 contracts filed on EDGAR in the past year. And most of those contracts have some connection with Canada, so dated for reference seems to be primarily a Canadian usage.

Using dated for reference is one of a number of ways that drafters signal to the reader that the contract is being given a date that is other than the date it was signed. (To the same end, a drafter might use an as of date or state in the introductory clause that the contract is effective on a date that happens to be a date other than the date the contract was signed.)

Whatever technique you?re inclined to use, I recommend, for four reasons, that you not tidy up the awkward timeline of a given contract:

• First, the contract is effective when it was signed, whatever alternative reality the parties elect to reflect in the contract.
• Second, if there?s ever a dispute, the real timeline would be the only one that matters.
• Third, if the date you give a contract can have an effect outside the contract, using a make-believe date can create unpleasant problems?witness the recent scandals relating to backdating options and backdating sales contracts.
• And fourth, make-believe dates might confuse those readers who aren?t in on what actually came to pass.

Instead, use the date of signing, or something close to it, in the introductory clause. Reflect elsewhere the circumstances that might have prompted you to use a different date. For example, if one of the parties started performing before the contract was signed, say as much in the recitals, address any compensation provisions in the body of the contract, and make it clear that the early performance is covered by the contract.

For a related discussion, see this post on use of the defined term Effective Date.

Full post as published by AdamsDrafting on April 14, 2008 (boomark / email).