Scenario 02

---
name: draft-nda-markup-scenario-02
task_id: corporate-ma/draft-nda-markup/scenario-02
description: Guides buyer-side NDA markup in a competitive auction process by applying playbook positions to a seller-drafted confidentiality agreement and producing a prioritized issues memo plus an annotated redline.
activates_for: [planner, solver, checker]
---

# Skill: Buyer-Side NDA Markup in a Competitive Auction

## 1. Subject-matter triage

- Treat this as a buyer-side markup of a seller-drafted NDA in an auction process, not a generic confidentiality review.
- Start by identifying whether the NDA is actually bilateral in effect, even if styled as mutual.
- Separate business-negotiation preferences from true legal risk and process constraints.
- If multiple counterparties, drafts, or attachments are in scope, enumerate them first and analyze each separately.
- Write the marked-up NDA first; treat the issues memo as secondary and complete it only after the markup is populated.

## 2. Failure modes the skill is correcting

- Standstill or no-contact language is treated as ordinary process language instead of a clause that can constrain bidding flexibility and board-level responsiveness.
- The definition of permitted recipients is checked for breadth but not for whether financing sources, co-investors, affiliates, lenders, and other diligence participants are actually covered.
- Fraud carve-outs and remedy limitations are reviewed casually, allowing exclusive-remedy drafting to swallow intentional misconduct claims.
- Non-solicitation language is accepted without checking for overbreadth, public-solicitation exceptions, and pre-existing applicant carve-outs.
- Return, destruction, and retention language is read literally without preserving backup retention, legal hold, or compliance retention obligations.
- Residuals language is ignored even though it can matter for buyers with overlapping investments or teams.
- Governing law, venue, and injunctive relief provisions are treated as boilerplate rather than buyer-sensitive risk allocation terms.
- Issues are listed without a consistent severity hierarchy, making the memo hard to action.
- Draft changes are shown only through styling, which may not survive conversion to .docx or plain text.
- Recommendations are stated without a responsible party or timing anchor.

## 3. Legal frameworks / domain conventions that apply

- Standstill and similar acquisition-restriction clauses should be reviewed against the relevant corporate-governance and fiduciary-duty framework governing board responsiveness to superior proposals.
- Representative and permitted-recipient definitions should be tested against market practice for private equity and strategic buyers, including disclosure to financing sources, equity partners, lenders, advisers, and controlled affiliates where appropriate.
- Remedy-limitation language should be tested for preservation of fraud and intentional-misconduct claims under the governing contract law.
- Non-solicitation terms should be evaluated for scope, duration, employee coverage, and customary carve-outs for general advertising and pre-existing contacts.
- Return-and-destruction provisions should preserve backup-system retention, archival copies, and legally required holds.
- Residuals provisions should be checked for how they interact with confidentiality obligations and any use restrictions on memorized information.
- Governing law, venue, waiver of jury trial, and injunctive relief terms should be aligned with the buyer playbook and the stated process posture.
- Confidentiality agreements in auction processes often operate as process-control documents; provisions that appear reciprocal may still be buyer-unfavorable in effect.
- For every legal proposition used in the memo or markup note, cite the controlling authority named in the source set or the generally recognized authority for the point, rather than stating the conclusion nakedly.

## 4. Analytical scaffolds

- Read the NDA clause by clause and classify each issue as legal risk, process constraint, or drafting preference.
- For each issue, state the severity on a consistent ordinal scale defined once at the top of the memo.
- For each issue, close the analysis by tying it to:
  - the relevant scale or concrete scope reflected in the documents,
  - the related clause, exhibit, schedule, or process document that interacts with it,
  - and the downstream consequence for the buyer’s bidding, diligence, litigation, or execution posture.
- If only one version of a clause exists, say so; if multiple provisions interact, analyze them together rather than as isolated fragments.
- Test every proposed edit against the playbook position and the process letter, and keep the buyer-protective point of view consistent throughout.
- In the markup, show every substantive edit with plain-text conventions that survive export, and pair each edit with a brief rationale note.
- When a provision should be narrowed rather than deleted, preserve the operative business intent while adding the buyer-side carve-outs or clarifications.
- When a provision is unacceptable as drafted, state the replacement or deletion clearly rather than merely criticizing it.
- Distinguish between mirror-image mutuality and real symmetry in effect.
- Include only issues that the buyer-side playbook would actually move on; do not inflate low-value edits into major points.

## 5. Vertical / structural / temporal relationships

- Track how confidentiality, use restrictions, standstill, return/destruction, residuals, and remedies interact across the agreement.
- Check whether obligations survive termination consistently and whether survival is longer than necessary for the buyer’s position.
- Check whether notice, cure, injunction, and waiver mechanics create timing leverage for the disclosing party or the target board.
- If the NDA references the broader process or a separate letter, align the markup with those documents instead of treating the NDA in isolation.
- If the process is auction-driven, assess whether any clause improperly narrows the buyer’s ability to compete, bid, syndicate, or respond to diligence requests over time.
- If the agreement contemplates later disclosure to controlled persons, confirm that the permission works at each step of the diligence chain.

## 6. Output structure conventions

- Produce two deliverables: a prioritized issues memo and a marked-up NDA with bracketed annotations.
- Make the marked-up NDA the operative draft: use plain-text redline markers such as [DELETED: …], [INSERTED: …], and [REPLACED: old → new] for every substantive change.
- Add a short [Rationale: …] note to each substantive redline so the basis for the change is visible in plain text.
- In the issues memo, define the severity scale once at the top and apply it uniformly to every item.
- For each memo entry, include:
  - the issue and the clause it affects,
  - the severity,
  - the buyer-side reason for the change,
  - the controlling authority or playbook basis,
  - the recommended revision,
  - and the consequence if left unmodified.
- Keep the memo prioritized from most material to least material.
- End the memo with an explicit Recommended Actions section that assigns an action, a responsible role, and a timing anchor tied to the transaction.
- Use industry-conventional headings and organization; do not mirror any hidden checklist structure.
- Before finishing, confirm that the marked-up NDA file contains operative changes, not just commentary, and that the memo file contains completed recommendations rather than a descriptive outline.