Scenario 02

---
name: draft-transaction-nda-scenario-02
task_id: corporate-ma/draft-transaction-nda/scenario-02
description: Guides drafting of a bilateral M&A NDA from precedent and negotiated transaction materials, with a drafting notes memo that records incorporated terms, judgment calls, and any open issues.
activates_for: [planner, solver, checker]
---

# Skill: Bilateral M&A NDA Drafting

## 2. Failure modes the skill is correcting

- The NDA is assembled from a precedent without reconciling it against the current transaction materials, so agreed business terms do not make it into the operative draft.
- Buyer-side and target-side information-sharing needs are treated as interchangeable when the deal materials call for bilateral access, defined recipients, and transaction-specific carveouts.
- Standstill language is copied mechanically without testing whether its scope, duration, exceptions, or waiver mechanics fit a live M&A process and the board’s ability to respond to proposals.
- Return, destruction, retention, and residual-use language is either omitted or overbroad relative to the diligence process, recordkeeping needs, and the parties’ actual information flows.
- Governing law, forum, notice, and interpretive mechanics drift from the transaction package because they are assumed to be “standard.”
- The drafting notes memo states conclusions without recording the basis for the drafting choice, the open points, and the items that still need business or legal confirmation.

## 3. Legal frameworks / domain conventions that apply

- Bilateral NDA architecture: where both sides will disclose confidential information during diligence, the default should be mutual obligations unless the transaction materials clearly justify asymmetry.
- Permitted recipients: if the diligence process contemplates sharing with affiliates, financing sources, equity investors, representatives, or other advisers, define those recipients precisely and align the confidentiality obligations to each category.
- Standstill and process protections: any restriction on acquisitions, proposals, or similar activity should be checked against the target’s ability to engage bidders, respond to unsolicited approaches, and comply with applicable fiduciary-duty principles and corporate law constraints.
- Residuals and memory-based use: if the business deal expects ordinary-course know-how retention, decide expressly whether residuals are permitted, limited, or excluded, and draft the definition accordingly.
- Return, destruction, and retention: the clause should distinguish between physical return, deletion, archival copies, and legally required retention for compliance, audit, tax, insurance, or dispute-hold purposes.
- Publicity and disclosure controls: any press-release, filing, or announcement restrictions in the materials should be reflected and coordinated with the confidentiality obligations.
- Governing law, forum, and injunctive relief: confirm the chosen law, venue, and equitable-relief language match the transaction package and the practical enforcement posture for the deal.
- Interpretive conventions: define “Representatives,” “Permitted Disclosures,” “Confidential Information,” and any “purpose” limitation consistently so the operative restrictions and exceptions do not conflict.

## 4. Analytical scaffolds

- Read the precedent, term sheet, deal memo, EOI letter, and CIM summary together; extract every agreed business point, and implement each one in the NDA before considering stylistic preferences.
- Treat the precedent as a starting structure only; identify provisions that were tailored to a different counterparty, asset mix, or transaction posture, and adapt them to the current deal.
- Identify each confidentiality topic that the transaction materials actually surface: disclosure scope, recipient scope, diligence purpose, standstill, residuals, return/destruction, retention, publicity, remedy language, and governing law.
- For each topic, confirm whether the materials specify a position, leave it open, or conflict; draft to the agreed position, and document any unresolved issue in the drafting notes.
- When standstill or proposal restrictions are present, test the clause against the deal process described in the materials, including any carveouts, duration, board-fiduciary flexibility, and mechanics for waiver or termination.
- When the materials reference nonpublic operational or technical information, ensure the definition of Confidential Information is broad enough to cover it without capturing information the parties expressly want excluded.
- When multiple possible drafting paths exist, choose the one most faithful to the source materials and most consistent with ordinary M&A practice; explain the judgment call, the tradeoff, and what remains open.
- Check the final draft for internal consistency across defined terms, exceptions, remedies, survival, assignment, entire-agreement language, and signature blocks.

## 5. Vertical / structural / temporal relationships

- Start from the transaction’s sequence: initial exchange, diligence use, permitted onward sharing, closing-related hold periods, and post-termination return/destruction obligations.
- Make the NDA’s operative restrictions track the lifecycle of information use rather than treating all obligations as static.
- If the materials contemplate staged disclosure, bidder access windows, or successive drafts, align confidentiality carveouts and notice mechanics to that sequence.
- If a standstill or exclusivity-related concept is time-bound, ensure the operative duration, trigger, extension, and termination mechanics are internally aligned with the transaction timeline.
- Where retention is allowed, separate temporary working copies from permanent archival retention so the post-termination obligations remain enforceable and practical.

## 6. Output structure conventions

- Produce two deliverables: the drafted bilateral NDA and a separate drafting notes memorandum.
- Draft the NDA as a clean operative agreement, not as commentary or a change log.
- The drafting notes memorandum should be organized by provision or topic, with each entry stating: the source material point, the drafting choice, the reason for the choice, and any open issue requiring follow-up.
- Include a short recommended-actions section in the notes memo that tells the deal team what still needs confirmation, who should confirm it, and when that confirmation is needed relative to the transaction process.
- Keep the notes focused on judgment calls, unresolved issues, and material deviations from the precedent; do not restate every standard clause.
- Before finishing, confirm that the NDA file is the primary operative deliverable and that both named output files are populated with substantive content rather than summaries.