Scenario 01

---
name: draft-transaction-nda-scenario-01
task_id: corporate-ma/draft-transaction-nda/scenario-01
description: Guides drafting of a bilateral M&A NDA from a precedent and negotiated term sheet where transaction-specific features and prior negotiations must be incorporated, together with a drafting notes memo.
activates_for: [planner, solver, checker]
---

# Skill: Bilateral M&A NDA Drafting

## 1. Subject-matter triage

- Treat the NDA as the primary deliverable and draft it first; do not rely on the notes memo as a substitute.
- Confirm whether the transaction is truly bilateral; if both sides will exchange diligence, use symmetric confidentiality obligations unless the source materials clearly support asymmetry.
- Identify whether the buyer profile creates special recipient issues: financing sources, co-investors, affiliates, investment vehicles, portfolio companies, advisers, and controlled entities may require tailored permitted-recipient language.
- Determine whether the source set includes any standstill, exclusivity, no-shop, no-talk, or similar control-right restriction, and whether that restriction must be narrowed to preserve ordinary board fiduciary function.
- Check whether any retention, backup, legal hold, regulatory recordkeeping, or reporting carve-outs are needed for return/destruction mechanics.
- If the materials point to a residuals concept, decide whether it is appropriate for the transaction and, if so, define it narrowly enough to avoid implied license drift.

## 2. Failure modes the skill is correcting

- The draft mirrors the precedent mechanically and misses negotiated deal points from the term sheet, deal memo, EOI, or CIM summary.
- Party-specific language from the precedent is carried over even though it fits a different buyer or seller profile, especially around representatives, affiliates, and financing-related disclosures.
- Standstill or similar restrictions are drafted too broadly and fail to account for board response rights, fiduciary constraints, or the intended bargaining posture.
- Boilerplate confidentiality mechanics are left unharmonized, creating internal inconsistency across definition sections, disclosure exceptions, remedies, and survival provisions.
- Return, destruction, and retention language is drafted without accounting for legal holds, archived systems, or required retention by advisers and financing sources.
- The drafting notes memo merely summarizes the draft instead of explaining judgment calls, unresolved items, and why particular tradeoffs were selected.
- The final work product omits a clear record of open issues for deal-team review, making later negotiation inefficient.

## 3. Legal frameworks / domain conventions that apply

- Bilateral NDA convention: confidentiality, use restrictions, and disclosure exceptions should ordinarily run both ways in a due-diligence exchange.
- Representative definitions should be tailored to the transaction party type and should match any express permitted-recipient categories elsewhere in the draft.
- Need-to-know and purpose-limited use are the default transaction standard; any broader use right should be supported by the source materials and stated expressly.
- Standstill, no-shop, and similar transfer/proposal restraints should be checked against applicable corporate-law fiduciary-duty principles and the board’s ability to consider superior proposals.
- Return/destruction provisions should be drafted with customary carve-outs for backup copies, legal compliance, insurance, tax, audit, and litigation hold obligations where appropriate.
- Residuals, if included, should be aligned with the deal context and should not override express confidentiality or use limits.
- Governing law, venue, equitable relief, notice mechanics, and term/survival provisions should conform to the negotiated sources and internal consistency of the draft.
- Drafting notes should function as a deal-team working memo, not a legal brief: it should record choices, open items, and dependencies on later negotiation.

## 4. Analytical scaffolds

- Read all source materials together and extract every agreed substantive position before drafting any clause.
- Start from the precedent, then map each provision to one of four buckets: keep, modify, delete, or add.
- For each modified provision, confirm the change is reflected everywhere the concept appears, including defined terms, exceptions, remedies, and survival language.
- Review the party structure and transaction context to ensure the recipient definition, affiliate language, and disclosure permissions match the buyer profile.
- Test each standstill or proposal restriction against the intended deal process and any board-level flexibility preserved in the source set.
- Identify all unresolved items, missing deal points, and judgment calls created by gaps in the source materials; record them explicitly in the notes.
- Where the source materials are silent, default to market-consistent bilateral M&A NDA drafting, but flag the assumption in the notes.
- Validate that the draft’s governing law, notice, term, and equitable-relief provisions are internally consistent and not accidentally inherited from the precedent without review.
- Prepare the drafting notes provision by provision, stating the issue, the selected drafting response, and the reason it was chosen over plausible alternatives.

## 5. Vertical / structural / temporal relationships

- Keep the operative NDA self-contained and coherent across definitions, operative covenants, exceptions, and boilerplate.
- Ensure that any permitted-recipient carve-out is structurally consistent with the confidentiality and non-use clauses it qualifies.
- Make the survival period, return/destruction obligations, and injunctive-relief language work together rather than conflict.
- If exclusivity or standstill timing is included, tie it to the transaction timetable and any stated expiration or trigger in the source set.
- If the agreement contemplates ongoing diligence over multiple rounds, preserve a consistent temporal framework for information sharing, disclosure approval, and obligation survival.
- Do not let the notes memo introduce substantive language that is absent from or inconsistent with the NDA draft.

## 6. Output structure conventions

- Produce two separate deliverables: a bilateral NDA draft and a drafting notes memorandum.
- Draft the NDA in conventional transaction-document form with clean operative clauses, defined terms, and standard closing boilerplate appropriate to a bilateral M&A diligence agreement.
- Draft the notes memo as an advisory document organized by provision or topic, not as a transcript of edits.
- For each note, state the drafting choice, the open issue if any, and the practical effect on the deal process.
- Include an explicit Recommended Actions section in the notes memo with concrete next steps, the responsible deal role, and timing tied to the transaction workflow.
- Use plain, lawyerly drafting; avoid commentary inside the NDA except where a defined concept or carve-out requires it.
- Keep the deliverables focused on operative drafting and review guidance, not on summarizing the source materials.
- Confirm that the NDA file is complete and non-empty before treating the notes memo as done.