Draft Markup Of Merger Agreement

---
name: ecvc-draft-markup-merger-agreement
task_id: emerging-companies-venture-capital/draft-markup-of-merger-agreement
description: Marking up a merger agreement from the target's perspective requires reviewing closing conditions, remedy allocation, outside-date timing, tax-related provisions, and any post-closing contingent consideration protections, then preparing a redline and supporting commentary.
activates_for: [planner, solver, checker]
---

# Skill: Draft Markup of Merger Agreement

## 1. Subject-matter triage

- Confirm whether the deal is a reverse triangular merger, whether the target is the acquired entity, and whether any special regulatory, tax, licensing, or third-party consent issues change the standard target-side markup posture.
- Separate mandatory closing mechanics from negotiable risk allocation. Treat conditions precedent, covenants, remedies, termination rights, and any contingent value provisions as distinct workstreams.
- Identify whether the agreement is intended to preserve a tax-deferred structure, whether employee or benefits matters are implicated, and whether post-signing operating covenants affect value preservation.

## 2. Failure modes the skill is correcting

- The markup improves economics but fails to add the operational protections needed to preserve the target’s ability to satisfy closing conditions, tax requirements, or post-closing value metrics.
- The outside date remains too short for approvals, transfer steps, notices, or third-party consents that are required before closing.
- Remedy language is revised piecemeal, leaving specific performance, termination fees, damages, and exclusivity of remedies internally inconsistent.
- Tax-facing provisions are edited without aligning the representations, covenants, and closing conditions that support the intended tax treatment.
- Contingent consideration is negotiated without corresponding conduct covenants, access rights, calculation mechanics, and dispute procedures.
- The target-side position is asserted without a concrete counterproposal or without tying the point to the relevant article or clause.

## 3. Legal frameworks / domain conventions that apply

- Market MAE drafting typically uses broad systemic carve-outs, then restores risk allocation through a disproportionate-effects qualifier and related exceptions; review the definition as a system, not clause by clause.
- Remedy provisions should be read together with termination rights, survival periods, fee provisions, and any equityholder-specific limitations so the agreement states who can seek what relief, against whom, and when.
- Where tax-deferred treatment is expected, review the form of consideration, tax covenants, tax representations, and any post-signing cooperation obligations for consistency with that objective.
- If the transaction depends on consents, approvals, assignments, novations, or similar transfer steps, the closing timetable and outside date must reflect realistic process timing rather than the signing party’s preferred date.
- If contingent consideration is included, the draft should prevent post-closing conduct that could artificially depress or impede the metric, and it should provide information rights and a dispute process sufficient to test the calculation.
- General contract interpretation principles, including reading defined terms consistently and avoiding internal contradiction, should guide every markup position.

## 4. Analytical scaffolds

- Begin by identifying the target-side ask for each significant provision, then test whether the draft allocates risk, timing, and remedies in a way that is commercially coherent.
- For each issue, state the current drafting problem, the target-side counterproposal, and the reason the change is needed.
- When a provision depends on another clause, cross-read them together before editing so the redline does not solve one problem while creating another.
- When multiple provisions address the same topic, choose a single drafting fix that harmonizes the set instead of making duplicative edits in isolation.
- For each term-sheet deviation or negotiation point, tie the comment to the relevant article, explain the target’s position, and state the concrete substitute language or drafting direction.
- Where the source materials identify a controlling rule, statute, regulation, or leading authority, cite it in the commentary when relying on that proposition.
- Use an ordinal severity scale for commentary items and apply it consistently across the memo; reserve the highest severity for provisions that threaten closing, value preservation, or remedy certainty.
- End each issue entry with the practical consequence to the target and the recommended drafting move.

## 5. Vertical / structural / temporal relationships

- Track how pre-closing covenants, closing conditions, and post-closing obligations interact over time; a concession in one phase may require a compensating restriction in another.
- Align the outside date with the longest realistic approval or consent path, not the shortest expected one.
- Test whether a post-signing covenant continues through closing or survives after closing, and whether the duration matches the protected interest.
- If contingent consideration spans multiple measurement periods, treat each period as a separate operational risk check and assess the interplay of conduct covenants, information access, and dispute timing.
- Read remedy provisions vertically with termination and fee provisions, and horizontally with any indemnity or escrow structure, to avoid conflicting exclusivity language.

## 6. Output structure conventions

- Produce the redline as a true markup artifact and make every substantive edit legible in plain text as well as in formatting. Use explicit textual change markers for additions, deletions, and substitutions, and attach a brief rationale to each substantive change.
- Draft the markup commentary memo as an advisory issue list organized by article or provision family, not as a narrative essay.
- Include for each entry: a short issue title, severity, the target-side position, the counterproposal, the rationale, and the practical consequence if the point is not fixed.
- Where several provisions relate to the same theme, group them under one heading but preserve separate entries for each distinct drafting point.
- End the memo with a Recommended Actions section that gives the next drafting step, the responsible role, and a timing anchor tied to signing, signing-to-closing, or the relevant approval milestone.
- Ensure the redline file is the primary deliverable and contains operative markup, not merely a description of intended changes; the memo is secondary and should summarize, not replace, the markup.
- Before finalizing, verify that both requested files exist, are non-empty, and contain substantive redline content and commentary rather than placeholders or summaries.