# Draft Transaction Nda Scenario 02 > 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. - Skill: `finchipaiorg/draft-transaction-nda-scenario-02` (Agent Skill) - Install (CLI): `npx skillmds@latest add finchipaiorg/draft-transaction-nda-scenario-02` - Raw SKILL.md: https://api.skillmd.com/api/skills/finchipaiorg/draft-transaction-nda-scenario-02/raw - Safety review: pending - Works with: Claude Code, Claude.ai, OpenAI Codex - Category: Coding & Dev Tools - Author: FinchipAIOrg (https://skillmd.com/u/finchipaiorg) - Updated: 2026-09-22 - Page: https://skillmd.com/skills/finchipaiorg/draft-transaction-nda-scenario-02 --- # 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.