Schedules, annexes, appendices 2

A question when including a schedule is how to name them, how to subdivide them (if necessary), and how to number them. That will be the subject of this post.

Division of schedules in parts. In some cases, an overload of schedules would be created if the above ideas were followed consistently. This can be prevented by dividing a schedule into several parts. For example, the business of a joint venture can be described in part 1, the scope of the non-compete provisions in part 2 and territorial arrangements (e.g. level of exclusivity) in part 3. As another example, a schedule related to the transfer of a business may address owned real estate in part 1 and leased buildings in part 2; a schedule identifying intellectual property rights may list owned registered IP in part 1; IP that is subject to licences to third parties may list those licences in part 2, and IP that is available pursuant to a licence from third parties could be listed in part 3.

Numbering. Schedules should be identified by a number or letter. In the agreement, the number serves as the identifier (and both the chosen reference word (schedule, annex etc.) and the number should be marked). Also the numbering style can be chosen freely, although it is a good idea to establish the numbering style as part of the company’s or firm’s contract drafting conventions[1] (or the house style). The numbering can be in numerals (Schedule 1, 2, 3), in Roman numbering (Exhibit I, II, III) or in capitals (Annex A, B, C).

A regularly adopted alternative style for numbering schedules is to use the number of the section in which the schedule is first referred to. This would mean that if for instance Section 8.1 refers to a schedule with the seller’s warranties, such schedule would be numbered Schedule 8.1 (and in subsequent sections referring to the same schedule, the 8.1 number would be maintained). Accordingly, annexes embedded into a schedule would refer to the number of the clause in the annex. Schedules that are referred to in the definitions (whereas definitions should not be numbered) are assigned a number that corresponds to its sequential appearance (i.e. such that the first schedule would be Schedule 1.1(a), a schedule referred to in a subsequent definition Schedule 1.1(b), etc.). If a section first refers to two different schedules (e.g. both the warranties schedule and the disclosure letter), the numbering style of schedules requires a choice, because a sub-paragraph of the section might also contain first-called-upon schedules, in which case the reference Schedule 8.1(a) in section 8.1 might conflict with the first-reference in subparagraph 8.1(a).

Where to place (sequential order)? The sequence of schedules is normally in the order in which they appear in the agreement. It might be a good idea to re-arrange the order. Typically, the list of products and prices is made the first schedule (even though the definition of General Terms and Conditions precedes the definition of Products in which those schedules are referred to). As another example, the list of acquired companies in a schedule to a share purchase agreement should probably precede all other schedules (except maybe for a list of the selling entities).

[1]           For an example of contract drafting conventions, click here.

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