Draft Escrow Agreement

---
name: ecvc-draft-escrow-agreement
task_id: emerging-companies-venture-capital/draft-escrow-agreement
description: Drafting a merger escrow agreement requires aligning governing law with the merger agreement, specifying allocation methodology for different stockholder classes in each release scenario, separating working capital and indemnification mechanics, and addressing tax treatment of escrow earnings
activates_for: [planner, solver, checker]
---

# Skill: Draft Escrow Agreement

## 1. Subject-matter triage
- Confirm the escrow agreement is the primary deliverable; draft it first, then prepare the cover memo only after the agreement file is complete and non-empty.
- Identify whether the source set includes multiple release regimes, holder classes, claim types, or tax positions; if so, draft each as a separate mechanism rather than collapsing them into one generic release clause.
- If the source documents present competing positions, preserve the former stockholders’ position where possible and flag the compromise point in the cover memo rather than burying it in the operative text.

## 2. Failure modes the skill is correcting
- Governing law drift between the merger agreement and the escrow agreement creates avoidable conflicts in interpretation, release standards, and agent liability.
- Release mechanics are drafted only for the initial funding but not for later distributions, leaving the allocation waterfall undefined when escrow funds are released.
- Working capital adjustments are treated as if they were indemnification claims, which blurs notice, dispute, timing, and cap mechanics.
- Claim-threshold mechanics are merged into one concept, obscuring the difference between per-claim gating and aggregate recovery thresholds.
- Escrow earnings are left unaddressed, creating uncertainty over tax reporting, withholding, and who bears the economic burden.
- The agreement explains what the parties intended but does not give the escrow agent clear, executable instructions for each release path.
- The cover memo omits the rationale for disputed drafting choices, making it difficult for the client to assess residual risks.

## 3. Legal frameworks / domain conventions that apply
- Track the merger agreement’s governing law unless the transaction documents or escrow agent form require a different law; if there is a mismatch, state it expressly and conform the dispute and enforcement provisions accordingly.
- Draft release mechanics against the actual release trigger: joint written instruction, court order, automatic termination-date release, or other source-defined event.
- Keep indemnification escrow mechanics separate from working capital adjustment mechanics; use distinct definitions, notice rules, dispute paths, and release timing.
- Define any minimum claim threshold and any aggregate threshold separately, with separate operative language for each.
- If the source set contemplates multiple stockholder classes or tranches, include an allocation schedule that specifies the distribution methodology for each release event, not merely the initial funding split.
- Address tax treatment of escrow earnings directly, including ownership for tax purposes, reporting responsibility, withholding, and funding of any resulting tax obligation.
- Use conventional three-party escrow structure: buyer, selling stockholder representative, and escrow agent.
- Where the source documents contain conflicting positions, draft conservatively, preserve the former stockholders’ bargaining points where supportable, and identify the tradeoff in the cover memo.
- Cite controlling authority for any legal proposition the drafting relies on, using the governing statute, rule, regulation, or other recognized authority named in the source materials or otherwise standard for the transaction’s law.

## 4. Analytical scaffolds
- Start by reconciling the merger agreement, term sheet, escrow agent form, cap table, buyer-side comments, and tax advice into one coherent operative framework.
- For each disputed point, identify: the parties’ competing positions, the drafting choice adopted, the residual ambiguity, and the practical consequence if the issue is left open.
- Draft the escrow agreement so each mechanism answers four questions: who acts, what triggers action, how funds move, and when the process ends.
- Treat indemnification and working capital as separate tracks; draft separate definitions, notice provisions, objection rights, resolution procedures, and release consequences.
- When a waterfall applies, map the allocation methodology by holder class and by release scenario so the agent can administer distributions without interpretive judgment.
- If the source set includes multiple holder groups, work through each group explicitly before finalizing the allocation schedule.
- Draft tax provisions from the operational perspective: who reports earnings, who receives notices, who bears withholding, and how any tax payment is funded from the escrow.
- In the cover memo, explain the key drafting decisions, note what was accepted or rejected from the source comments, and identify any open issues requiring client instruction.
- Before closing, confirm the agreement text exists and contains operative clauses, schedules, and defined mechanics; do not let the memo substitute for the agreement.

## 5. Vertical / structural / temporal relationships
- Use a vertical structure that moves from global terms to mechanism-specific provisions: parties, funding, release mechanics, claims administration, tax, agent protections, and miscellaneous terms.
- Keep the temporal sequence explicit: closing/funding, claim period, notice window, dispute period, release date, and final termination.
- Separate the initial funding event from later release events, and separate ordinary claim administration from end-of-term release.
- If a working capital adjustment has its own deadline or dispute period, place it on a separate temporal track from indemnification claims.
- Reflect any order-of-operations constraints from the source set, such as claims being noticed before setoff, or objections being resolved before release.
- Where multiple stockholder classes exist, make the allocation waterfall follow the same temporal order as the release mechanics so later steps do not rewrite earlier entitlements.

## 6. Output structure conventions
- Produce a complete escrow agreement in standard form, with the operative provisions written as a standalone contract rather than a commentary on the source documents.
- Include a clear allocation schedule or equivalent exhibit if holder-class distributions vary by release scenario.
- Use separate sections for indemnification escrow, working capital adjustments, tax treatment, escrow agent mechanics, and release instructions.
- Draft the cover memo as a concise advisory companion that explains the major drafting choices, the points preserved for the former stockholders, and the open issues for client decision.
- Make the memo action-oriented: identify the issue, the adopted approach, and why that approach was chosen.
- If a source document supplies defined terms or authority, carry them through consistently rather than paraphrasing them into new concepts.
- Ensure the final package is internally consistent: defined terms match operative provisions, release triggers match payment instructions, and the memo matches the final drafting positions.