CLINIC SALES AND ACQUISITIONS
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Committed to Helping Our Clients Succeed.
Are you looking to buy or sell a medical practice or clinic? Are you an experienced health professional seeking to transition your practice to family members in your profession, or to younger associates? Are you a younger professional thinking of a joint venture, merger or acquisition with other members of your profession? At MÉDICALOI, we are here to help.
Our team of transactional lawyers possesses extensive experience in guiding health professionals throughout the process of sales, acquisition, and mergers of medical practices. We will walk you through the numerous legal and financial implications to be considered in the context of your distinct transaction.
MÉDICALOI has cultivated a vast and knowledgeable network of transactional professionals in related fields, such as tax and accounting specialists, practice valuators, financing and banking intermediaries, and notaries for when the practice is sold together with immovable property.
In general, there are two ways to acquire or sell a practice: a transaction relating to assets, or a transaction relating to shares (should the practice be incorporated). Most sellers who operate their practice through a corporation will likely be looking to sell the shares of the corporation rather than its assets. This is because the seller will be looking to take advantage of the Lifetime Capital Gains Exemption available to business owners upon the sale of shares in their business.
Did you know that…
If you need help finding a buyer for your practice, or if you are looking to purchase one, MÉDICALOI can help! We have an inventory of medical practices and clinics that are either for sale or for purchase.
- Planning for an acquisition
This is likely the most important step of the process. While most sellers will provide a basic profile of their practices/clinics, we typically recommend conducting an independent research and developing a tailored plan for the acquisition.
In order to help prospective buyers, our firm helps in preparing our clients in the development of a solid acquisition plan, which may include the following basic considerations:
- Understanding our client's overarching objectives
On a short, medium, and long-term basis, as well as identifying key features of a clinic or practice that are most important to our client.
For example, in the context of the acquisition of a dental clinic, we analyse, amongst other things:
- Practice needs and goal assessments;
- Whether our client wish to maintain the current size and structure of the seller’s clinic, or is the objective (in the short or medium term) to optimize certain aspects of the clinic;
- How many chairs currently exist? How many chairs does our client wish to have in total following the acquisition and does the current space permit such an expansion/contraction;
- Whether our client wish to offer patients alternative forms of dentistry;
- Whether our client wish to attract associates down the line;
- The percentage of the clinic’s revenue generated by the seller(s), versus associate dentists;
- The percentage of the clinic’s revenue generated by dental hygienists, and can this be increased or optimized;
- The feedback from the current patients of the clinic. The answer could be of paramount importance to the future of the clinic;
- The length of time for which our client wish to operate the dental clinic; and
- Whether there are any plans to acquire additional clinics down the road? Will these clinics remain independent of the others, or is the intention to develop a chain of dental clinics?
- Development of a business plan
Statistics compiled and analysed by the Harvard Business Review ('HBR') illustrate the importance of creating a business plan at least 6 months prior to the acquisition of a professional practice; in fact, HBR studies clearly showcase the direct correlation between writing a detailed business plan and an increased chance of success.
According to the HBR, despite the 8-12% increased chance of success resulting from a well-executed business plan, the key remains incorporating flexibility and adaptability to the business plan, as life and business are each unpredictable in nature. The purchaser must be proactive and responsive to potential business opportunities, including new-age marketing strategies.
- Development of an Executive Summary
Which includes a description of the:
- Clinic and the focused identify development;
- Products and services offered;
- Determination of products and service price points;
- Marketing plan;
- Analysis of competition;
- Operational plan;
- Management & organization;
- Development of process optimization;
- Evaluation of fixed and variable expenses & capitalization; and
- Financial plan. This is one of the most important steps that many professionals skip.
- Visiting the prospective clinic and interviewing key employees and associate health professionals.
- Evaluating the seller’s intended sale price
Before drafting a formal offer, it is advisable to perform a detailed analysis of the seller’s desired purchase price as part of the due diligence process (see section 3 below Hyperlink). An initial reasonability study should also be conducted prior to the negotiation and drafting of the Letter of Intent (see part 2 below).
Was the seller's practice evaluated by a certified evaluator? If so, what were the evaluation criteria and methodologies used?
We do not typically recommend that our clients attempt to negotiate the purchase price themselves, or that they agree to a proposed purchase price without undertaking adequate and in-depth due diligence procedures.
The initial determination of the purchase price, and the method of such determination, can often lead to initial disputes between the seller and buyer. We work with trusted practice evaluation firms that can assist our clients in the evaluation process, in addition to working with independent chartered professional accountants and professional evaluators who can further help to determine whether the proposed purchase price is logical based upon previous corporate tax returns and financial statements.
- Determining how the transition of the clinic will take place
The transition will occur over which period of time? It is common for the buyer to request help from the seller with respect to the transition of the practice and patients to the buyer in order to minimize adverse effects on the clinic following the acquisition.
- Determine the transaction timeline
More particularly, the period of time needed to complete due diligence procedures, get financing, and finalize the transaction.
- Understanding our client's overarching objectives
- Drafting a Letter of Intent ("LOI")
Once a target practice or clinic has been identified and an acquisition plan is in place, the next step typically consists of the negotiation and drafting of a non-binding LOI which outlines the framework agreement between the seller(s) and the purchaser(s). The LOI may include the following elements:
- Identification of the parties
The seller’s corporate structure becomes an important consideration at this stage, as many sellers fail to adequately prepare for the sale of their practice or clinic. As a result, the seller may first wish to subject the clinic to a corporate reorganization for the purposes of a sale.
- Qualification of the transaction
Does the seller intend to sell the assets of the clinic or practice, or the shares of same? If the latter, which is often what a seller will want to do due to tax incentives arising from a sale of shares in a private corporation, are the shares held by the seller personally or by a trust or holding corporation?
- Determination and negotiation of the purchase price of the practice or clinic.
- The closing date of the transaction
Including the estimated date upon which the purchaser effectively becomes the new owner and assumes operational control of the practice or clinic.
- Establishment and payment date of a deposit, if any.
- Due diligence timelines and scope
The scope of due diligence procedure may entail an analysis of legal documents and financial statements, balance sheets and tax returns of the practice/clinic.
- Financing conditions
To ensure that the purchaser is not bound to purchase the practice or clinic until adequate financing is in place.
- Other clauses and restrictive covenants:
- Non-disclosure and confidentiality clauses: To ensure that all correspondences, negotiations and draft legal documents and agreements are kept confidential;
- Non-competition clauses: To ensure that the seller does not compete with the buyer after the sale of the practice or clinic;
- Non-solicitation clauses: To ensure that the seller does not solicit patients of the practice/clinic after the sale, or solicit staff of the practice/clinic, or in any manner encourage such patients or staff to leave the practice/clinic after the sale;
- Clauses related to leases: Relating to the current lease of the practice/clinic, if applicable, and obtaining the consent of the landlord to consummate the transaction.
- Identification of the parties
- Performing in-depth due diligence verifications
Performing adequate due diligence prior to the sale, a vital step in the acquisition process, often involves the following:
- Financial due diligence: examination of the practice evaluation (particularly to confirm its reasonability), and examination of the financial statements, balance sheets and tax returns of the practice, for at least the last 2 years;
- Determination and matching of the financial information with patient information. In other words, the classification of patients to determine quality and quantity of annuities (repeat business patients);
- Auditing patient charts;
- Analysis of existing equipment: leases relating to equipment, and determination of urgent equipment purchase requirements;
- Lease documents: review of existing commercial lease of the practice or clinic;
- Liens and Litigation: research with respect of current movable hypothecs (and immovable hypothecs, if applicable) and research relating to pending litigation relating to the practice or clinic.
- Legal documentation: An analysis of associate agreements, employment agreements, existing contracts entered into by the practice and/or the seller, corporate minute book and related documentation.
Did you know that…
Conducting thorough due diligence verifications can help you identify and mitigate legal and business risks. We do not want to see your future growth be jeopardized by the seller’s past actions.
For more details about the due diligence process, please feel free to contact us.
- Offer to Purchase
It is now time to make a formal offer! Now that you have completed due diligence procedures and have evaluated the risks and opportunities related to your targeted clinic or practice, the next step, in most cases, consists of the drafting of an official Offer to Purchase.
The Offer to Purchase fleshes out the Letter of Intent and is, typically, a binding document if accepted by the seller. As a result, the Offer is more formal and contains clauses that will be reiterated and further reflected in the final Purchase Agreement.
It is vital to analyze meticulously the specific needs of the clinic or practice in question before submitting your offer, particularly if it is binding; you don’t want to forget a major consideration!
Did you know that…
The negotiation of a Purchase Agreement requires experience and understanding in the business environment, and particularly the space in which the targeted company operates. Every clinic is different, every deal is different, and a personalized approach which takes into consideration your goals and concerns is the key to success.
At MEDICALOI, we are committed to your success.
- Purchase Agreement
This step entails the closing of the transaction that we have been working on over the course of the last few months and represents the final agreement between the seller and purchaser. Therefore, many of the clauses, representations, and warranties outlined in the Letter of Intent and the accepted Offer to Purchase will be reiterated and further detailed out in the Purchase Agreement.
If you need assistance with the preparation of the closing documents, which are typically quite extensive in their scope and nature, feel free to contact one of our experienced attorneys to help you with that task!
- Post-closing considerations
During the course of the negotiation process, our team of attorneys will further analyze, on a case by case basis, the specific needs of the clinic or practice in question. As a purchaser, final considerations with respect of what happens after the clinic changes hands should not be overlooked.
Below are some of the major post-closing considerations that we are typically involved in:
- Transition agreements
These agreements are concluded between a purchaser and a seller, and contemplates their relationship after the execution of the Purchase Agreement, although both agreements are typically signed at the same time. Therein, we negotiate the remuneration of the seller, how many days (and hours) per week the seller must be physically present at the clinic (whether as an independent associate practitioner or as a practice advisor), amongst other things.
Often, the purchaser will want the seller to assist in the transition of the practice after the sale. This can involve assisting the purchaser with the day-to-day operation of the clinic or practice, migrating patients to the purchaser in a professional and systematic manner to increase the likelihood of patient retention, and further transitioning the clinic or practice to fit the purchaser’s business practices and future business trajectory.
- Management agreements
Many of our clients acquire large clinics which employs a dedicated and experienced clinic manager. This manager is often a key employee and the purchaser may desire to retain his/her services on a long-term basis; hence the importance of ensuring that a well-structured and legally binding management agreement is drafted, should one not exist.
If one does exist, it may be prudent to revisit, and update said agreement before the signature of the Purchase Agreement to ensure that key points are covered in sufficient detail. As a new business owner, the purchaser should strive to optimize the organizational systems of a clinic or practice, and an office manager is usually a key component of such system optimization.
- Employment contracts
Other members and employees of the clinic’s team should also have contracts which accurately reflects the terms and conditions of their employment.
For example, in the context of a dental transaction, such members include dental hygienists, secretaries, receptionists, book-keepers, and marketing personnel, to name a few.
A well drafted contract protects all concerned parties by ensuring the least amount of ambiguity as to the respective rights and obligations of the contracting parties.
- Associate agreements
While the purchaser may be acquiring the clinic today, at some point in the future, it is likely that the purchaser will want to sell the clinic as part of their retirement plan; hence the importance of ensuring that as much goodwill as possible remains the sole and exclusive property of the clinic or practice itself.
Therefore, a clear and thorough associate agreement which contemplates and espouses the future goals of the owner should be drafted for every professional associate practitioner working within the clinic or practice.
These associates are independent contractors; they are not employees of the clinic, and as a result, the associate agreement will differ significantly from a clinic’s employment contracts.
It is important to further note that, even in the same clinic, the associates may have different agreements based on their experience, specialty, expertise, billables, and other elements that they bring to the table.
A cookie cutter agreement for your associates won’t be sufficient to protect your clinic or practice, and at MÉDICALOI, we can assist you in the drafting of customized contracts for each associate which reflects fairly the value each brings to the clinic.
- Transition agreements
Did you know that…
We often see many clinics and other professional practices that have performed little work in protecting their future growth. In particular, many agreements, including employment agreements and office management agreements, are lacking in their scope or are entirely non-existent!
At MÉDICALOI, our objective is to help our clients grow their businesses and achieve their dreams. We look forward to assisting you in the drafting of clear and equitable employment and management agreements in order to protect your clinic or practice.
Are you looking to sell your clinic to an associate? Are you in search of a potential buyer? Contact us today to learn more about the steps involved in the sale of a clinic, and how to prepare your clinic properly and efficiently for a future sale.
We will be posting more details on our site in the near future, so stay tuned!