Draft Markup Of Stock Purchase Agreement

---
name: draft-markup-of-stock-purchase-agreement
task_id: corporate-ma/draft-markup-of-stock-purchase-agreement
description: Guides preparation of a prioritized seller-side markup memo for a stock purchase agreement, emphasizing issue spotting, cross-document consistency checks, and bracketed commentary on risk allocation, representations, indemnification, restrictive covenants, and closing mechanics.
activates_for: [planner, solver, checker]
---

# Skill: Draft Markup of Stock Purchase Agreement (Seller-Side)

## 1. Subject-matter triage

- Treat the buyer’s first draft SPA as the operative baseline, but test it against the LOI, strategy memo, environmental summary, and client email before changing any provision.
- Separate true deal terms from drafting noise: prioritize provisions that shift economic risk, closing certainty, post-closing liability, or seller mobility.
- If the task calls for a memo rather than a marked-up agreement, still draft the markup substance first; the memo should track the changes and rationale, not replace them.

## 2. Failure modes the skill is correcting

- Flagging issues provision-by-provision without tying them back to the deal documents that set the seller’s negotiation position.
- Missing where a buyer draft overreaches on representations, indemnification, covenants, closing mechanics, or equitable remedies relative to the LOI or client instructions.
- Overlooking internal inconsistencies across the SPA, especially where a narrowed concept in one section is expanded elsewhere by definition, remedy, or survival language.
- Treating environmental diligence as a standalone point rather than using it to calibrate indemnity scope, cap, basket, holdback, and any special escrow mechanics.
- Allowing restrictive covenants to track buyer standard form instead of the client’s actual transition timeline and post-closing role.
- Drafting comments that describe the problem but do not give the seller-side ask, the reason, and the practical consequence.
- Relying on visual markup alone; export-safe text must make each change legible even if formatting is lost.

## 3. Legal frameworks / domain conventions that apply

- Stock purchase agreement seller-side allocation: focus on who bears pre-closing and post-closing risk, and whether the draft preserves the seller’s intended exit economics.
- Material adverse effect / material adverse change: review seller-favorable carve-outs for general market or industry conditions, changes in law, war, pandemic, disasters, financing or capital markets conditions, acts of third parties, and transaction announcement effects; assess any disproportionate-effect qualifier so it does not swallow the carve-outs.
- Representations and warranties: test for overbroad, absolute, knowledge-less, or non-materialized statements; align the seller’s reps with information actually available and with qualified knowledge and materiality standards where customary.
- Indemnification architecture: check basket structure, cap, survival, sole remedy language, exclusive remedy carve-outs, bring-down mechanics, and escrow/holdback linkage for consistency.
- Environmental diligence linkage: if the source materials identify environmental conditions or remediation exposure, calibrate environmental reps, special indemnities, escrow/holdback, and survival periods to that record rather than leaving uncapped or open-ended exposure.
- Restrictive covenants: match scope, duration, geography, activity limits, and ancillary restrictions to the seller’s expected transition and legitimate buyer protections.
- Closing mechanics: confirm conditions precedent, deliverables, pay-off mechanics, transfer instruments, FIRPTA/tax forms if relevant, authority certificates, and release mechanics do not create avoidable seller-side traps.
- Governing legal authorities: where a legal proposition is invoked, anchor it to the controlling contractual concept or recognized doctrine rather than stating it abstractly.

## 4. Analytical scaffolds

- Start by enumerating the provisions likely to matter most to the seller, then review each against the source documents before drafting commentary.
- For each issue, state:
  - the current draft position,
  - the seller-favorable revision,
  - the practical rationale,
  - the source document that supports the ask,
  - the downstream consequence if the buyer’s language stays in place.
- Use an ordinal severity label consistently for each issue, and apply the same scale throughout the memo.
- Where multiple source documents address the same subject, synthesize them together instead of issuing separate comments that could conflict.
- For every issue, connect the clause to the relevant exposure, timeline, or transaction function, and note how it interacts with other SPA sections.
- Where the agreement contains a defined term that drives multiple provisions, trace the term through all affected clauses before proposing edits.
- If the draft includes a special escrow, holdback, earnout, or indemnity carve-out, confirm whether the mechanics are internally consistent with the purchase price adjustment and closing payment provisions.
- When the buyer’s draft is ambiguous, propose narrow seller-side bracketed language that preserves the buyer’s legitimate protection while avoiding unintended expansion.

## 5. Vertical / structural / temporal relationships

- Track risk flow vertically from definitions to operative covenants to remedies; a narrow definition can be undone by a broad remedy or survival period.
- Track temporal sequencing: signing, pre-closing covenants, closing conditions, post-closing claims, indemnity survival, restrictive covenant duration, and any deferred payment or escrow release timing.
- If the client materials describe an expected transition-out period, compare that timeline to the non-compete, non-solicit, consulting, or cooperation periods and narrow overreach accordingly.
- If environmental diligence identifies a remediation concern, map that concern across representation, disclosure schedules, indemnity, escrow/holdback, and termination rights.
- If the LOI set a conceptually capped or limited risk allocation, check whether the first draft silently broadens that allocation through definitions, exceptions, or uncapped remedies.

## 6. Output structure conventions

- Write the seller-side markup memo in a prioritized, provision-by-provision format.
- Define a simple severity scale at the top and apply it uniformly.
- For each issue, include a compact entry with:
  - Severity,
  - Provision / clause,
  - Current draft language,
  - Seller’s proposed revision,
  - Rationale,
  - Source support,
  - Cross-reference to any interacting clause or document,
  - Practical consequence if not changed.
- Use bracketed commentary for negotiation notes and drafting alternatives.
- Make each change machine-readable in plain text as well as in redline form; do not rely only on formatting.
- When deleting text, mark it explicitly; when adding text, mark it explicitly; when substituting text, show the replacement explicitly.
- Group related issues where a single factual source affects multiple provisions, but do not collapse distinct seller asks into one comment.
- End with a concise Recommended Actions block that assigns each action to the relevant lawyer, business lead, or officer and ties it to the signing, comment-return, or closing milestone.
- If the task deliverable is a file, ensure the marked-up document exists and contains operative edits before treating any memo as complete.