Draft Healthcare Merger Agreement

---
name: hls-draft-healthcare-merger-agreement
task_id: healthcare-life-sciences/draft-healthcare-merger-agreement
description: Drafts a definitive reverse triangular merger agreement for a healthcare transaction with healthcare-specific representations, regulatory and operational covenants, earn-out mechanics, antitrust considerations, and a companion drafting issues memorandum flagging ambiguities and buyer-side risks.
activates_for: [planner, solver, checker]
---

# Skill: Draft Definitive Healthcare Merger Agreement — Reverse Triangular Merger

## 1. Subject-matter triage (only if applicable)

- Confirm the deal is a reverse triangular merger: merger subsidiary merges into the target, the target survives, and the acquirer indirectly owns the target.
- Separate issues that affect the agreement itself from issues that belong in the issues memorandum.
- Identify whether the source materials show any special healthcare regulatory path, workforce action, reimbursement transition, or earn-out dependency before drafting covenants and conditions.

## 2. Failure modes the skill is correcting

- The reverse triangular structure is misstated, so contract-rights preservation, closing mechanics, and subsidiary survival are drafted inconsistently.
- Healthcare regulatory covenants are treated as generic corporate boilerplate, leaving ownership-change notices, provider enrollment, reimbursement continuity, and operational transition risk unaddressed.
- Antitrust filing and review risk is not tied to closing conditions and outside-date mechanics, so extended agency review can strand the deal.
- Earn-out language is too thin on definitions, accounting conventions, operational constraints, information rights, and dispute resolution, creating post-closing manipulation risk.
- Workforce-notice obligations are omitted or drafted without reference to applicable federal, state, or local thresholds.
- Physician restrictive-covenant analysis is left out, even though enforceability depends on governing state law and can materially affect post-closing protection.
- Fraud, false-claims, billing, or whistleblower exposure is not integrated into the reps, covenants, and indemnity framework.
- The drafting issues memorandum identifies concerns without stating severity, consequence, or a concrete fix.

## 3. Legal frameworks / domain conventions that apply

- Reverse triangular merger mechanics should be drafted so the merger subsidiary disappears and the target survives as a subsidiary of the buyer; this structure is commonly used to reduce assignment risk for target contracts and permits.
- Deal-specific regulatory covenants should cover required notices, filings, consents, and approvals under applicable healthcare, antitrust, licensing, and reimbursement regimes, with each item tied to a closing condition or interim covenant as appropriate.
- Antitrust compliance should be handled through filing covenants, cooperation obligations, remedy allocation, and an outside date that reflects ordinary waiting periods and the possibility of extended review.
- Healthcare ownership-change or control provisions should address notices to regulators, payors, program administrators, and counterparties where required, plus transition obligations to preserve billing and reimbursement continuity.
- Workforce-reduction or site-closure covenants should account for applicable advance notice statutes and any state or local analogs that impose different thresholds or timing.
- Earn-out provisions should use clear definitions, objective measurement periods, specified accounting principles, permitted buyer operating discretion, anti-manipulation covenants, seller access rights, and a neutral accountant or similar expert process for disputes.
- Physician restrictive covenants should be analyzed under the governing state law before drafting; scope, duration, and enforceability assumptions should be stated consistently with that law and the merger structure.
- Fraud, billing, false-claims, or whistleblower matters should be addressed with targeted representations, tailored disclosure schedules, and indemnity treatment that reflects buyer exposure.
- Any legal proposition stated in the draft or memo should be anchored to the controlling authority identified in the source materials or to a recognized legal authority applicable to the transaction.

## 4. Analytical scaffolds

1. Draft the merger agreement as the primary deliverable first, then prepare the drafting issues memorandum after the operative agreement exists.
2. Build the merger mechanics from the structure outward: parties, recitals, merger consideration, subsidiary survival, conversion of equity, treatment of options and awards, and closing deliverables.
3. For each regulatory topic, separate:
   - required notice or filing,
   - condition to closing,
   - interim operating covenant,
   - outside-date implication,
   - post-closing cooperation.
4. For each earn-out feature, specify:
   - the metric,
   - the measurement period,
   - the accounting standard,
   - permitted buyer conduct,
   - prohibited manipulation,
   - access to records,
   - dispute process,
   - payment timing.
5. For each healthcare-specific risk, test whether the provision belongs in:
   - representations and warranties,
   - interim covenants,
   - closing conditions,
   - indemnification,
   - or a special closing deliverable.
6. For each physician restrictive-covenant issue, analyze governing law first, then draft only to the extent enforceable and commercially supportable.
7. For each identified drafting issue in the memo, state the ambiguity or gap, explain the buyer-side risk, and recommend a concrete drafting fix.

## 5. Vertical / structural / temporal relationships (only if applicable)

- Use the sources to map which items must happen before signing, between signing and closing, at closing, and during any post-closing earn-out or cooperation period.
- Tie any agency review, consent delay, or licensing approval to the outside date and any termination right that depends on it.
- Distinguish one-time closing covenants from ongoing obligations during the interim period and from post-closing obligations that survive for the earn-out or transition window.
- If multiple regulatory approvals or notices are in play, treat them as separate obligations with separate timing, rather than collapsing them into one generic condition.
- If multiple sellers, classes of consideration, or earn-out periods exist in the source set, enumerate them explicitly before drafting the related provisions.

## 6. Output structure conventions

- Deliver a complete definitive merger agreement in conventional transaction-document form, with healthcare-specific reps, covenants, conditions, indemnity provisions, and earn-out mechanics where supported by the source materials.
- Deliver a separate drafting issues memorandum that is organized as an issue list with a stated severity scale, concise explanation of each issue, the implicated provision or source point, the buyer-side risk, and the recommended cure.
- In the memorandum, use an explicit recommendation block at the end that assigns the next step to the appropriate role and ties it to a deal milestone or deadline.
- Do not leave the memo at diagnosis; every issue should end with a practical drafting or diligence action.
- Keep the agreement and memo aligned on defined terms, timing, and risk allocation so the memo reflects the draft that was actually produced.
- Before finishing, verify that the agreement file is substantive and that the memorandum separately identifies ambiguities, gaps, and buyer-side risks rather than restating the deal summary.