Scenario 01

---
name: draft-nda-markup-scenario-01
task_id: corporate-ma/draft-nda-markup/scenario-01
description: Guides buyer-side NDA markup in a competitive auction process where playbook positions must be applied against a seller-drafted non-disclosure agreement to produce a prioritized issues memo and annotated redline.
activates_for: [planner, solver, checker]
---

# Skill: Buyer-Side NDA Markup (Auction Process)

## 1. Subject-matter triage
- Identify whether the draft is a one-way or mutual NDA, whether it is being used in a competitive auction, and whether the buyer is also being asked to sign any process-letter-style restrictions.
- Separate true legal risk from preferred negotiating position. In this task, prioritize terms that can constrain bidding flexibility, diligence-sharing, fraud remedies, or post-termination conduct.
- If the source set contains multiple drafts, playbook versions, or instruction layers, reconcile them before marking up; do not analyze one document in isolation when others modify the baseline.
- Use the client’s playbook and process instructions as the governing overlay, then test the seller draft clause-by-clause against that overlay.

## 2. Failure modes the skill is correcting
- Standstill language is treated as routine boilerplate instead of a potential constraint on bid strategy, topping flexibility, and board response rights.
- The permitted-recipient framework is checked for breadth without confirming that the buyer team, affiliates as needed, financing sources, and deal advisers are actually covered for diligence purposes.
- Remedy limitations are accepted without testing whether fraud, willful misconduct, or injunctive relief are improperly limited.
- Return, destruction, and backup-retention mechanics are reviewed too narrowly and ignore legal hold, archival, and routine system-reserve exceptions.
- Residuals and use restrictions are analyzed without asking whether the buyer’s existing businesses or overlapping teams need a tailored carve-out.
- Governing law, venue, and dispute-resolution terms are treated as defaults rather than as buyer-friendliness issues that may affect enforcement leverage.
- Comments and issue summaries become descriptive only, without linking the concern to the playbook position and the practical consequence for the transaction.
- The redline relies only on formatting changes that may not survive export, leaving edits ambiguous in plain text.
- The issues memo mixes drafting preferences with material deal risks, making prioritization unreliable.

## 3. Legal frameworks / domain conventions that apply
- Standstill provisions should be tested for breadth, duration, triggers, and any restrictions on proposals, acquisitions, support activity, or communications that could impair auction competitiveness.
- Permitted-recipients definitions should be broad enough to cover internal deal teams and customary external advisers, but still track confidentiality obligations and need-to-know limits.
- Residuals clauses may be acceptable in some market settings, but should be reviewed for fit with the buyer’s business overlap and the risk of unintentional information use.
- Exclusive-remedy or limitation-of-liability language should be checked for carve-outs preserving fraud-based and equitable claims where market practice or client policy requires.
- Non-solicitation and non-circumvention concepts should be checked for overbreadth, customary exceptions, and whether the language is trying to do more than the NDA should do.
- Return/destruction provisions should preserve backup, disaster-recovery, automatic archive, and legal-hold exceptions to the extent consistent with the playbook.
- Governing law, forum, and equitable-relief clauses should be reviewed for enforceability and buyer-side leverage, with special attention to injunctive relief and forum selection.
- If the source documents supply a playbook rule or instruction, apply that rule as the primary authority for drafting positions; if a legal proposition is asserted, identify the governing doctrine or rule that supports it.
- Use ordinary transactional drafting conventions: define the issue, state the concern, state the playbook position, then propose the conforming revision.

## 4. Analytical scaffolds
- Read the NDA once for structure, then again clause-by-clause against the playbook and process instructions.
- For each material clause, ask: does it restrict auction participation, disclosure, litigation remedies, post-signing use, or post-termination handling in a way the buyer should resist?
- For each identified issue, state: the clause at issue, the buyer-side risk, the playbook outcome, and the specific drafting fix.
- When multiple parties, restrictions, or time periods are involved, treat each distinct category separately rather than collapsing them into one generic comment.
- When a clause cross-references another provision, a process letter, or an exhibit, check the interaction so the markup does not create internal inconsistency.
- Where the playbook gives a preferred fallback, reflect that fallback in the redline and in the memo; where it gives an absolute position, mark it as such.
- Use a consistent severity scale in the memo and apply it uniformly to every issue.
- Keep the redline self-explanatory in plain text: every substantive insertion, deletion, or replacement should be obvious without relying on Word styling.
- If a clause is acceptable only with a carve-out, draft the carve-out expressly rather than leaving it implied.
- End the advisory with concrete next steps tied to the transaction timetable or document process.

## 5. Vertical / structural / temporal relationships
- Track whether a clause operates at signing, during diligence, after the bid phase, at closing, or after termination; a restriction may be acceptable in one phase and unacceptable in another.
- Test whether a definition, covenant, remedy, or legend has downstream effects on later clauses such as return/destruction, residuals, dispute resolution, or equitable relief.
- If the NDA is mutual in form but asymmetric in operation, flag the practical asymmetry even if the labels are balanced.
- Where a clause depends on another document or schedule, confirm the controlling order of precedence and whether the NDA is subordinated to the playbook or process letter.
- If there is only one NDA draft in scope, say so; if there are multiple versions, enumerate them before comparing or reconciling them.

## 6. Output structure conventions
- Produce two deliverables: a prioritized issues memo and a marked-up NDA.
- The issues memo should open with the severity scale, then present each issue as a short entry with: severity, issue summary, buyer-side concern, playbook-aligned position, and recommended revision.
- Order the memo from highest severity to lowest, then by document flow so the reader can implement changes efficiently.
- Each memo entry should close with the practical consequence of leaving the clause unchanged.
- Include a final Recommended Actions section that assigns an imperative action, the responsible role, and a timing anchor tied to the deal process.
- The marked-up NDA should use robust text cues in addition to any Word styling so changes remain legible after export; show deletions, insertions, and replacements explicitly, and attach a brief rationale to each substantive change.
- Bracketed annotations should be concise and tied to the relevant playbook position or instruction set.
- Keep the markup convention consistent throughout the document so the client can review without deciphering a custom notation system.
- Preserve the original structure of the NDA unless a conforming revision requires a structural change.
- Before finishing, ensure the memo and the marked-up NDA are both complete, internally consistent, and ready to circulate as separate files.