Beyond the Employment Agreement: The Life-Cycle of a Dental Practice Entity From Buy-In to Buy-Out A Practical Approach to the Major Issues

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1 Beyond the Employment Agreement: The Life-Cycle of a Dental Practice Entity From Buy-In to Buy-Out A Practical Approach to the Major Issues View from the Practice and the New Owner A Presentation For: Mercer County Dental Society January 17,2006 Presented by: Michael F. Schaff, Esq. Wilentz, Goldman & Spitzer Woodbridge, New Jersey (732) mschaff~wilentz.com Diamonds Restaurant.. ~ (.... \.

2 OVERVIEW General Considerations The Buy-in Anatomy of a Purchase or Subscription Agreement Ownership Documents - Operating Agreement or Shareholders Agreement (I r J, ~ ~~ ~ ')/ 7' ~ ~ ~ The Buy-out Deferred Compensation Agreements

3 GENERAL CONSIDERATIONS Which perspective do you look at the transaction from? - The dental practice ("Practice") - The dentist joining the Practice '1\ ".. 'l : " Ii I..I: :,~ I II 'I J.,.. ii. J J. VI I - A younger owner - An older owner - The President of the Practice )

4 GENERAL CONSIDERATIONS What are your goals? Each party should have his or her own counsel, accountant and other necessary (.... professional(s) ~ Know who are the parties' and the Practice's professionals Accountant Attorney Outside practice management consultants

5 THE BUY-IN: Due Diligence Type of entity General Partnership Unlimited liability Pass-through taxation Professional Corporation "C" Corporation - Limited liability - Possible double taxation "8" Corporation Limited liability Pass-through taxation Limited Liability Company Limited Liability Pass-through taxation

6 THE BUY-IN Governance Documents Corporation - Stockholder Agreement (a!ka Buy-Sell Agreement) - Bylaws - Employment Agreement - Deferred Compensation Agreement Limited Liability Company - Operating Agreement Partnership - Partnership Agreement ( ~

7 THE BUY-IN: Due Diligence Documents, agreements and contracts relating to the Practice should be reviewed Certificate of Incorporation / Formation Bylaws Operating/Stockholder Agreement Organizational minutes T ax Returns Payor agreements L

8 THE BUY-IN: Due Diligence Property leases and subleases Equipment leases Employment, Consulting, management and other service agreements (owners and non-owners) Agreements with respect to shared facilities and functions.purchase and supply contracts Licenses r. (".. y lt. ~.J,. - '\

9 THE BUY-IN: Due Diligence Lines of credit Loan and credit agreements, mortgages, promissory notes, security agreements and other evidences of indebtedness Accounts payable Deferred Compensation Agreements Policies and procedures, including employment manuals and compliance plans Employee benefits agreements 401 (k) plan and other pension plans Health, accident, life and disability insurance policies

10 THE BUY-IN Related Partl Transactions Are there any arrangements between an owner and the Practice? Are they at fair market value? - Real estate (the dental office) - Equipment - Employment of relatives - Loans from / to related parties - Other arrangements?

11 ANATOMY OF A PURCHASE OR SUBSCRIPTION AGREEMENT The Parties - Who is the seller? The Practice or other owners? Whereas Clauses l l J - Not required - Sets the background or stage for the Agreement.~ - Legally not considered par of the t Agreement unless incorporated by reference - Should set forth "legal consideration" between the parties

12 ANATOMY OF A PURCHASE OR SUBSCRIPTION AGREEMENT What Ownership Percentage Is Being Purchased? - Equal ownership interest for each owner - Different percentages for each owner - Classes of owners - Number of installments in which the Purchaser is purchasing the ownership interest (i.e., purchase ownership interest over time)

13 ANATOMY OF A PURCHASE OR SUBSCRIPTION AGREEMENT How will the Practice be valued? Determination of purchase price? - Determined by the parties - Determined by third party appraiser, accountant or other third party How valued? - Book value - Corporate earnings or other formula value - Valuation of particular assets

14 ANATOMY OF A PURCHASE OR SUBSCRIPTION AGREEMENT Does the purchase price include accounts receivable? If does, what is the tax effect? Does the purchase price include goodwill? When will the valuation occur? Date joined practice? Date buying in? What is its effective date of the buy-in?

15 ANATOMY OF A PURCHASE OR SUBSCRIPTION AGREEMENT Pavment. f Purchase Price Lump sum payment at closing Payment over specified months or years Combination What is the Interest rate on installment payments Salary/Income shift? Must understand the tax issues relating ~ thereto (can a new stockholder use pre-tax dollars to buy-into the Practice?) "- ~ ~

16 ANATOMY OF A PURCHASE OR SUBSCRIPTION AGREEMENT SecuritJr Pavment Unsecured Promissory Note Promissory Note to be secured by: - Security interest in some / all assets of the Purchaser - Pledge of ownership interest of the Purchaser - Other collateral? Mtge? Life insuance? Spouse guaranty?. ß

17 ANATOMY OF A PURCHASE OR SUBSCRIPTION AGREEMENT Representations Organization, Standing and Power Authority Compliance with Applicable Laws Capital Structure Litigation Liabilities Title to Assets Employees. Work in Process& Re-makes? - Insurance \. e e.

18 ANATOMY OF A PURCHASE OR SUBSCRIPTION AGREEMENT Representations (Con 'i) Contracts ( Taxes Patients Environmental Matters Financial Statements Accounts Receivable Related Party Transactions Real Property

19 ANATOMY OF A PURCHASE OR SUBSCRIPTION AGREEMENT Indemnification for Breach of Representations Who is responsible for pre-buy-in obligations, such as bank loans, overpayments to insurance companies, "re-makes" and accounts payable? Who can share the pre-buy-in entitlements, such as underpayments by insurance companies, work in process and accounts receivable?

20 ANATOMY OF A PURCHASE OR SUBSCRIPTION AGREEMENT - Miscellaneous provisions Entire Agreement Succession and Assignment 4. Counterpar '- (, Headings fi Notices Governing Law and Jurisdiction Amendments and Waivers Severability Incorporation of Exhibits and Schedules Other?, ~ \1(~'T.t~ "' Ī ~ i =- 6~.

21 OWNERSHIP AGREEMENT Major Issues Control/decision making Transferability of Ownership Other - Compensation - Restrictive covenant - L. -l--, ' - Dissolution

22 OWNERSHIP AGREEMENT COfftrol/ecision Making V oting among owners - one vote per share / membership unit - one vote per owner (regardless of ownership - percentage) - classes of owners having different votes

23 OWNERSHIP AGREEMENT Directors/ Managers Number Voting - one director / manager, one vote - weighted voting for specific directors / managers - classes of directors / managers Manner of Election - regular voting - cumulative voting

24 OWNERSHIP AGREEMENT C icers Titles - President - Vice-President ~ - Secretary - Treasurer ~ Authority of duties and responsibilities Limitation on duties and responsibilities,. J ~~ ~...

25 OWNERSHIP AGREEMENT Committees f!tiona ) Committee authority and responsibility List of prohibited activities and list of activities requiring additional director / manager or owner approval Executive Committee or Management Committee Compensation Committee ~ -~~ ~..

26 OWNERSHIP AGREEMENT Minority Owner Protective Issues Protective mechanisms for minority owners from actions of majority (may be different for different issues) Right to purchase additional interests to avoid dilution Majority approval of owners Supermajority approval of owners (66%, 75%, other) Unanimous approval by owners

27 OWNERSHIP AGREEMENT IJes ol Major Decisions The admission of any new owners or the issuance of any additional shares of stock/ membership units Determining the number of shares/units to be transferred to a new owner and the cost of such shares/ units The sale, lease, encumbrance, or other disposition of all or substantially all of the Practice's assets or the decision to cease, terminate, dissolve, or liquidate the Practice or the Practice's bus. ess activities

28 OWNERSHIP AGREEMENT 'Ies oimajor Decisions Con' The amendment or modification of the Incorporation / Formation or Bylaws of Certificate of the Practice The termination, amendment, or modification of any of the terms and provisions of the S hareho i ders/operatinglpartnershi p Agreement The amendment or modification of any owner's Employment Agreement or Deferred ComDensation Agreement with the Practic.....

29 OWNERSHIP AGREEMENT Types ol Major Decisions (Con't) - The purchase, acquisition, combination or other affiliation by or of the Practice with any dental practice or business entity The establishment or modification of any employee retirement plan or benefit program of any nature maintained by or on behalf of the Practice The creation, incurrence, or assumption of any indebtedness for borrowed money, or any indebtedness which constitutes the deferred purchase price of any property or assets in an amount exceeding a specified dollar amount

30 OWNERSHIP AGREEMENT Types ol Major Decisions (Con't) The authorization of any borrowing or other obligation which requires the personal guarantees of the owners of the Practice The establishment or change in the criteria of the allocation of the compensation available to be paid to the owners The reduction in the amount or scope of coverage of any insurance policy maintained by the Practice The addition of a new dental office location utilized by the Practice

31 OWNERSHIP AGREEMENT Types ol Major Decisions (Con't) - The hiring, firing, and discipline of and compensation and fringe benefits offered to employed dentists and other employees of the Practice Payor contract negotiation and execution Check signing in amounts in excess of a certain $ amount Capital calls /' Related party transactions Other?,,.. " ~.., /~

32 OWNERSHIP AGREEMENT Owner Protective Issues- Seniori.y or Founders Rights -Protective mechanisms which protects founding owners from actions of majority: Majority approval of owners and founding owners on all decisions Veto right on Major Decisions Major Decisions) (See list of i,ij If.. / Iitl ~..~. j',. _..

33 OWNERSHIP AGREEMENT Transferability 0 f Ownershill Is sale / assignment / transfer of an owner's interest permitted or prohibited? Right of first refusal on sale of ownership interest - Note: Owners must be licensed professionals - Option to redeem / repurchase FOR SALE BY OWNER --

34 OWNERSHIP AGREEMENT Triggers &r Repurchase Obligation Attempted voluntary transfer Death Disability. What is the definition of "Disability"? Consider coordinating this with the disability insurance policies Termination of employment for Cause (the definition in the Stockholders Agreement must mirror the definition in the Employment Agreement)

35 OWNERSHIP AGREEMENT Triggers &r Repurchase Obligation lcon't) Termination of employment by the Practice for non-cause reasons Voluntary termination (retirement or withdrawal) Bankruptcy Involuntary lifetime disposition l

36 OWNERSHIP AGREEMENT Valuation lownership Interestfi Certificate of agreed value Valuation formula - Book value - Multiple of corporate earnings - Multiple of compensation - Other Appraisal Method Arbitration Method Different valuations may apply for different termination reason

37 OWNERSHIP AGREEMENT Valuation olownership Interests lcon't) Allocation of buy-out amount - Purchase of ownership interest vs deferred compensation - De minimis price (book value) with balance as deferred compensation - Tax treatment Deferred Compensation 02 b~c2,..~, /'1 - ~ "/J~,~ u'"

38 OWNERSHIP AGREEMENT Insurance Funding ol Death and Disabilitr Buy-outs Costs of policies; who bears cost? Tax issues Redemption vs. cross purchase (alternative minimum tax concerns) Disability buy-out insurance - Definition of disability - Waiting period - Payment terms Distinguish disability income insurance

39 OWNERSHIP AGREEMENT Pavment Terms Entire buy-out amount upon purchase or option to pay in installments Terms of Promissory - Interest rate - Payment period - Events of default. -r.l',_.!~ft..'w--..

40 OWNERSHIP AGREEMENT SecuritJ Security - Pledge of ownership interest - Personal guaranty (spouse) - Security interest or lien on assets - Other \

41 OWNERSHIP AGREEMENT Voting Rights Upon Triggering Proxy to other Owners upon Triggering Event Automatic resignation from manager, director, officer and trustee positions (effective on notice)

42 COMPENSATION OF OWNERS Compensation Methods - Equal Compensation - Productivity/Formulas - Combination of Equal Compensation and Productivity - Point System - Fixed Base Periodic Salary Plus Bonus Discretion of the Practice in compensation matters - should it be limited? (Who makes decisions?) - Board of Directors / Managers - Executive or Management Committee - Compensation Committee - Recusal of affected owners (you don't vote on your own compensation)

43 EMPLOYMENT OF OWNERS Duties of owner Termination of employment - V oluntary withdrawal/retirement by an owner - on at least U days advance written notice to the Practice - Termination by the Practice without cause - on at least U days advance written notice to the owner - Termination by the Practice "for cause"

44 EMPLOYMENT OF OWNERS - Disability - Definition of disability - Owners specify definition - Board to determine - Insurance policy definition - Waiting period - Benefits during disability (salary, etc.) - Disability Income insurance - Death

45 OWNERSHIP AGREEMENT Restrictive Covenant and Co fldentialitl Geographic restrictions Term (months / years) of restrictions Enforceability -l ii.

46 OWNERSHIP AGREEMENT Restrictive Covenant and Co fidentialitl(con' ) Specific restrictions - Services - Solicitation of patients / providers - Solicitation of employees - Solicitation of referral sources - Opening office - Use of name in advertising

47 OWNERSHIP AGREEMENT Dissolution / Breakup Provisions Application of restrictive covenant Retention of locations, phone numbers,. employees, assets? - Do Founders get preference without cost? Allocation of continuing buyout obligations of past owners Provisions for debts of the Practice ~ \..4 4~_.. ~ dl~ ~.fi~ $~~~~~ ~~~~~-...

48 Beyond the Employment Agreement: The Life-Cycle of a Dental Practice Entity From Buy-In to Buy-Out A Practical Approach to the Major Issues View from the Practice and the New Owner A Presentation For: Mercer County Dental Society January 17,2006 Presented by: Michael F. Schaff, Esq. Wilentz, Goldman & Spitzer Woodbridge, New Jersey (732) mschaff~wilentz.com Diamonds Restaurant.. ~ (.... \.

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