Draft Markup Of Restrictive Covenant Agreement

---
name: draft-markup-of-restrictive-covenant-agreement
task_id: corporate-ma/draft-markup-of-restrictive-covenant-agreement
description: Guides preparation of a section-by-section restrictive covenant agreement markup memo and negotiation priority matrix, requiring analysis of customer non-solicitation scope, passive investment carve-outs, enforceability under the selected governing law, and carve-outs for board or community service where relevant.
activates_for: [planner, solver, checker]
---

# Skill: Draft Markup of Restrictive Covenant Agreement

## 1. Subject-matter triage
- Treat the restrictive covenant agreement as a transaction-sensitive ancillary document that must be read against the merger agreement, the negotiation playbook, and the client intake memo together.
- Identify whether the covenant package is seller-favorable or buyer-favorable on its face, then rework the markup to preserve the client’s bargaining position while keeping the restraints defensible.
- Before drafting commentary, enumerate the clauses that are actually being revised and confirm whether there is only one form in play or multiple versions/alternatives that require separate treatment.

## 2. Failure modes the skill is correcting
- Reading the restraint in isolation and missing cross-document inconsistencies with the merger agreement, the playbook, or intake constraints.
- Allowing overbroad definitions to slide because the clause “sounds standard,” instead of testing each restraint against the protected interest and governing-law enforceability rules.
- Drafting redlines that are visible only through formatting and not legible in plain text after export.
- Giving issue commentary without a clear severity ranking, a negotiation stance, and a practical next step.
- Recommending concessions without distinguishing mandatory revisions from items that can be traded.
- Citing enforceability conclusions without naming the governing authority or rule supporting the point.

## 3. Legal frameworks / domain conventions that apply
- Customer non-solicitation scope: tie the restriction to the relationship set the transaction actually protects, not the buyer’s entire customer universe; narrow if the text reaches beyond that protected base.
- Employee non-solicitation: distinguish targeted solicitation from broad recruiting bans or passive receipt of applications.
- Restricted business / activities definition: test whether the defined scope matches the business, assets, or goodwill transferred or protected.
- Geographic scope: compare the territory covered to the actual commercial footprint of the protected business and flag mismatches.
- Duration: assess whether the restraint’s term is supportable in the transaction context and under the chosen law.
- Passive investment carve-out: preserve ordinary passive holdings and any preexisting minority position that the source materials identify as needing express permission.
- Nonprofit / board / community-service carve-out: prevent the restraint from unintentionally blocking charitable, civic, educational, or community service roles.
- Governing law and enforceability: analyze the selected law’s treatment of severability, blue-penciling, or judicial reformation; draft as if the restraint must stand on its own unless the governing law clearly allows more.
- Cross-reference rule: every legal conclusion should be tied to the relevant governing-law principle, statutory rule, regulation, or leading case recognized for that jurisdiction.
- Negotiation-playbook alignment: classify each proposed edit as a required fix, a preferred position, or a fallback, and identify the next-best formulation if the preferred language is rejected.

## 4. Analytical scaffolds
- Read the restrictive covenant section by section, and for each section ask: what interest is protected, how broad is the restraint, what source document limits or expands it, and what drafting change best preserves enforceability and leverage.
- For each issue, capture:
  - the affected clause or concept,
  - why the current wording is overbroad, underinclusive, or misaligned,
  - the proposed seller-favorable or client-favorable redline,
  - the governing-law or other authority that supports the revision,
  - the consequence if the language remains unchanged.
- When comparing multiple candidate formulations, treat them as separate alternatives rather than blending them into one generic suggestion.
- Use explicit textual redline conventions that survive export: [DELETED: ...], [INSERTED: ...], and [REPLACED: old → new].
- Attach a short [Rationale: ...] note to each substantive change so the reader can identify the reason for the edit without relying on formatting.
- Where the agreement or playbook offers a fallback, state the fallback immediately after the primary ask so the negotiation path is usable.
- If the governing law affects whether an overbroad clause can be cured later, flag that early and draft conservatively at the markup stage.

## 5. Vertical / structural / temporal relationships
- Track how the restrictive covenant interacts vertically with the merger agreement, the intake memo, and any playbook constraints; do not draft a redline that conflicts with a higher-priority document.
- Track how one restraint affects another: a narrower customer definition may change the need for a broader geographic or duration ask, and a carve-out may need to be mirrored across multiple sections.
- Read temporal limits carefully: if the agreement uses post-closing windows, survival periods, or staggered restrictions, align the commentary to each time period rather than analyzing the covenant as a single undifferentiated term.
- If multiple seller entities, multiple covered businesses, or multiple candidate forms appear in the source set, enumerate them first and analyze each separately.

## 6. Output structure conventions
- Produce a section-by-section markup memorandum, not a freeform essay.
- Start with a short severity legend using a clear ordinal scale, then apply that scale uniformly to each issue.
- For each section, include: section reference, severity, issue statement, proposed revision in robust redline form, rationale, authority, and negotiation posture.
- Include a negotiation priority matrix that separates required revisions from tradeable positions and notes the fallback formulation for each tradeable item.
- Include an enforceability analysis section that explains the governing-law consequences for each major restraint and whether any severability or reformation concept matters to the drafting.
- End with an explicit Recommended Actions block that tells the reader what to revise, who should do it, and by when in the transaction workflow.
- Ensure the deliverable reads as a memo supporting a DOCX markup file; do not substitute a summary of issues for the actual proposed revisions.