This November, Ontario’s Court of Appeal provided some well-received direction for buyers and sellers of corporations who have to manage the fickle issue of employment during a transaction.
Filed under Blog, Buying / Selling a Practice, Staff · Tagged with APS, asset purchase agreement, asset purchase transaction, asset purchases, asset sale, buy a dental office, buy sell dental practice, buyer, buying and selling assets, consideration, continued employment, ESA, Jonathan Borrelli, Krishnamoorthy v. Olympus, ONCA, sell a dental practice, seller, shares vs. assets, SPS, termination, transfer assets, vendor
Nope. Not all at. Not unless you want to pay 10% of the sale price to them and think they offer you some kind of magical value. The truth is: prospective purchasers form part of a pool of candidates. And we all have access to that same pool. That’s right: we have access to thousands of prospective purchaser dentists in Ontario. So what is it that a broker really brings to the table?
Let’s see the top 5 reasons why Brokers want dentists to use them…
1. They’ve Been Around
True. Brokers have been around for a while. And they’ve done a lot of deals. But you know who else was around for a while? Blockbuster. But you know what happened to them, right? When they kept charging their exorbitant fees and stopped adding value, they went belly up. We charge fixed fees based on the specific elements of the deal. Our fees aren’t tied in to the purchase price.
2. They’ll Get You the Highest Price
Actually, the market will dictate what price you get. All they can do is market your practice. But if it’s a dud practice (demo clause, no staff on contract, financials going down), you’ll get a dud price. If it’s a great practice (Kudos to you by the way!), you’ll get a great price. And guess who else can market your practice (eBlasts, open houses, calling up dentists, etc.)? That’s right – WE CAN! FYI, the best practice we sold in 2016 year had 40+ people attend the open house, 15+ registered offers, and it ultimately sold for 1.6 x appraised. Talk about us getting our dentist client an awesome return!
3. They Represent Your Best Interests
That’s a little hard to swallow given that they pay for marketing out of their own pocket and only get paid WHEN the deal closes. So they have an inherent conflict because they are incentivized to close quickly and perhaps take a less than ideal offer to recoup their initial expenses. That differs from us: we get paid based on doing our job (marketing + legal). It’s fixed. You know our fees in advance. And because we are lawyers and held to that very high professional standard (like dentists, but not like others), we have a duty to zealously represent your interests above our own and above others. And because we’ll be involved from the transaction LONG before you actually sell (for example, by putting your staff on contract, renegotiating your lease, helping you purify your corporation), we’ll have cleaned up all those pesky things that could come back during a sale to cost you HUNDREDS OF THOUSANDS of dollars. Can brokers do that? NOPE!
4. They Prepare Appraisals
Truth is: depending on WHO prepares the appraisal, you’ll get a lot of different values. And MANY appraisals we’ve seen are incomplete, deficient, and inaccurate. They’ll over-value the practice. They’ll include revenues which shouldn’t be there. They’ll under-or-over state expenses. They’ll get the patient information (active patient charts) all wrong, or won’t even go down that path of trying to tell you how many there are. Their marketing demographics are virtually non-existent. And what’s the value of an appraisal? $5k? If I had one chance to sell, I would go with Dental Strategy to prepare my appraisal. Yes, they may cost a little more, but they are way more comprehensive and actual highlight the opportunities for a buyer to make more MONEY post-closing! What a great document to help sell the practice. Not all appraisals are the same; and I call ‘bullSh$%’ on a lot of what’s out there. Also, depending on who’s name is on the appraisal, our firm may not even GET INVOLVED in helping a purchaser buy because we simply don’t trust the appraisal AT ALL.
5. Brokers Are Afraid of DSOs and Dental Consolidators
DSOs or dental service organizations team up with dentists to acquire practices. The non-dentist part of the DSO model offers support services (business and admin) to the dental practice to make it easier for patients to be cared for (the dentist focuses on the clinical things; the DSO focuses on streamlining and making the practice more efficient).
Dental consolidators are dentists who own multiple practices. They’re smaller scale DSOs.
Here’s the thing: Brokers are afraid of DSOs and Dental Consolidators. Why? Because DSOs and Dental Consolidators TEND NOT to buy from brokers. They don’t want to pay for a broker’s commissions.
Bottom Line: Brokers Make You… Broke-er 😉
If you’re thinking of selling your dental practice, contact DMC LLP well in advance!
We’ve helped many dentists sell their practices to dental organizations over the past few years. Here are some thoughts from the front line…
Why Is It Happening?
It’s pure economics: there’s a strong demand (lots of people want in), coupled with limited supply (dentists can cash out).
On the demand side, there are lots of dentists and investors who want to own and / or operate a dental practice. And who wouldn’t want to? Anecdotally, our law firm reviews a lot of appraisals and we expect to see an efficiently run practice operating above 30% adjusted profit margin (revenue minus expenses and without considering the dentist’s take home salary or discretionary expenses). Some practices can control their costs better – particularly rent, staff and advertising – while producing a lot more than other practices due to niches, specialities, good locations, strong team, etc.! And we’ve seen these practices operate at close to 50% adjusted profit margin.
Now for some facts… Based on the 2014 tax returns of all the dentists in Ontario (both incorporated and unincorporated):
Just keep in mind that these figures likely overstate expenses (because they were submitted for tax purposes). That means the dentists were probably doing things like including family members on salary (who weren’t actually working) and putting other personal discretionary expenses through the business (e.g. car, etc.). But it’s still a good gauge. Bottom line: dental practices are GREAT BUSINESS investments. Much better than what you could be getting by investing in stocks and bonds and with much less risk!
I guess-timate that there are a few thousand dental practices that will need to be sold in Ontario in the next five years – and that’s just based on the number of dentists with their own practices and who have been at it for a while. Have we seen a FLOOD of dental practices hit the open market? Not really… but there is definitely an uptick in people getting appraisals (from Matt Bladowski of Dental Strategy for example), which means they are 1 step away from listing with us (on www.DentalPlace.ca). What this also means is that there is a shortage of dental practices on the market. With banks (like TD) giving 100% + financing, dentist buyers don’t really pay for anything out of their pockets up front. Even legal fees are covered (that means they’re either amortized over the term of the loan or used in the Line of Credit). So it’s a seller’s market and sellers with good practices can generally dictate the sale structure (shares instead of assets to get the better tax treatment) and other terms of the sale. So why would sellers sell to dental organizations? Simply put: they are serious buyers offering more favourable terms (price, associate remuneration, taking over leases, dealing with staff, etc.) who can GET THE DEAL DONE fast and don’t have financing problems.
Like I said: it’s pure economics. Can you (or should you) blame a dentist who worked their entire lives and wants to get the best deal possible for their practice – if that means selling to a dental organization? And what’s wrong with dental organizations anyways? Is there any hard evidence that they put profits before patients? Aren’t they supposed to be following the same legal, ethical and professional obligations that any other dentist owner / operator would? Part of the reason I think some dentists don’t like them is because they don’t understand them, have heard horror stories from a disgruntled few, or don’t want dentistry to be perceived as a BUSINESS, but rather as a PROFESSION. The latter is how it used to be with LAW as well. I entered into law and I met some lawyers who thought we were professionals first and not business people. They were repulsed at the idea. I think we’re way beyond that now. And market forces have gotten us there: because when you apply business principles to a profession, it’s supposed to give greater access to the general public, increase competition, and reduce fees (think: Walmart).
Yeah, but is it Legal?
Dental organizations are sophisticated. They have resources. They can command big discounts on supplies (like 20%). They can get financing privately or borrow from a traditional bank. They have lots of people at their disposal. They are constantly hiring new talent. They can take care of all the business and administrative functions of running a dental practice. So naturally, the question that comes up is: can they LEGALLY own / operate a dental practice? If it’s a dentist on their own, that’s not an issue… of course they can own the assets or the shares of a dentistry professional corporation. But what about a dental organization that involves both a dentist and a non-dentist person (like a corporation)?
Well, the answer to that isn’t straightforward. Let me explain. First, if you look at the definition of practicing dentistry in Ontario’s Dentistry Act (which differs from province to province and state to state in other countries), it’s a very clinical definition. That means that non-dental persons CANNOT practice dentistry. But what about all the business and administrative tasks / functions that go into operating a dental practice? Can a non-dental person fulfill those functions? Yes. They already do. Landlords provide space. Marketers run campaigns. HR companies hire staff. Order equipment / supplies from vendors. All for the dental office. So what if one person performed all of these functions on behalf of the dental office? I recently found out that almost anyone reputable can PURCHASE dental equipment from a supplier, but only those with HARP qualifications can actually use them. What about dental records? Well, that’s where things get even more interesting. I’ve written a lot about this in articles you can read HERE. There are arguments on both sides of the equation in terms of who can OWN vs. ACCESS them. And until we have a judge ruling on them (because the legislation is pretty silent on this topic) in light of a public dispute, some things will just be kept underground.
Preparing to Sell to a Dental Organization
When preparing to sell a dental practice, if you want to maximize the sale price and other terms, you’ll want to make sure you:
Now, some dental organizations will try to buy a dental practice before a lot of these steps to ‘clean up the practice’ are done. If they offer a seemingly good price, it could be worth it to move forward with them. BUT remember this: you only have 1 option to sell, so you should do it properly. And you’ll never know if they’re offering you ‘fair market value’ unless you actually market the practice and have offers in hand from willing buyers. Even if you do plan to sell to a dental organization, if you’re wondering if they’re giving you a good price / terms, it would be worthwhile to put it on the market (just for the purpose of getting offers and a better bargaining position).
In my experience, dental organizations don’t necessarily offer better / worse remuneration than what the rest of the market offers (e.g. 40-45% being the average) for sellers who stay on to associate afterwards. They do, however, push the limits on restrictive covenants. With their business minded hats on, they definitely build in a number of extra protections for themselves – some of which I question are necessary or even legally enforceable. They come in the shape of chart fees (e.g. you pay $1,000 for treating a patient elsewhere) or genuine liquidated damages (e.g. paying $250,000 for hiring an existing staff member elsewhere or violating a non-compete), which could resemble a punishment (which is not legally enforceable). Just be sure to equip yourself with the right legal team (eh hem…) before starting negotiations with any purchaser – including a dental organization.
Selling ASSETS vs. SHARES
Some dental organizations (non-dentist persons) are weary of purchasing professional goodwill directly in case it turns out that they cannot do so legally (which is a grey area as noted above). So instead they want the seller to sell professional goodwill (an asset) to a dentist or dentistry professional corporation on day 1. Then, the dental organization (usually non-dentist corporation) will purchase the shares of what’s left of the selling dental practice on day 2. I know this sounds complicated. And it is. It adds to the seller’s legal and accounting costs because of the extra steps involved. And, starting January 1, 2017, there will be an additional 13% of taxes (that would otherwise have been paid) on the sale of the goodwill on day 1. Now, if you don’t compare this to what was happening January 1, 2017, it won’t make a difference. But if you do compare it and if you’re able to take advantage of the lifetime capital gains exemption (and hopefully multiply it) and would rather sell shares entirely to a dental organization in one shot but they refuse, then it becomes a question of PRICE: is what they’re offering a good deal when you look at things like: what are they offering when compared to the increased taxes, legal and accounting costs you’ll be paying, as well as what other purchasers would be offering (who would probably be doing straight up share sales)? Just some things to consider…
Irrespective of who you’re thinking of selling to, make sure you do some homework: it’s highly advisable to pay a little bit NOW to clean up your practice to maximize the PRICE and BEST TERMS you can get when you eventually sell. You only get one opportunity to sell, so do it properly. I would also recommend marketing the practice (regardless of whether you’re going to sell to any one particular person – including an associate, friend, or dental organization) so you can appreciate what you can get for it and create leverage during the sale process.
As always, if you need assistance in preparing for sale, contact me (firstname.lastname@example.org | 647.680.9530).
We’ve just looked back at the last 50 transactions we’ve been involved with (for buyers and sellers) and here’s what we learned:
Please don’t rely upon the above if you’re looking to buy or sell a specific practice. This data came from transactions throughout Ontario over the past many months and things change over time. If you want specific insights into a particular practice, contact DMC LLP.
Here’s a testimonial from a dentist who sold their practice through DMC LLP and www.DentalPlace.ca:
“Dear Michael, David and Staff,
I had the pleasure of first meeting you at a dinner lecture after responding to a flyer I received at my office. As an added bonus, I got to meet some members of your families. In any business negotiation the most important aspect for me is the professionalism and sincerity that one engages in. You conducted yourself in a manner that far exceeded my expectations. You were there for me every step of the way, explained every necessary legal detail. Due to my illness I forced you to conduct an extremely fast sale of my dental office. You came through and I am most grateful.
I had attended numerous lectures on office sales by other entities. The first thing I noticed is the high percentage of the sale they take (usually 8-10%). The next thing they tell you is they will find you a lawyer to conclude the sale, and of course an appraiser to evaluate your office. This adds further expense and time. Some brokers will rebate you the cost of the appraisal if they represent you.
To my fellow dentists, if you are interested in selling your practice DMC is the way to go. If you have staffing problems, they have the legal expertise. If you wish to buy an office or have other dental issues they have the right answers.
Keep in touch.”
Dr. B., DDS
David Mayzel is your legal risk manager. He is a trained courtroom lawyer and has spent many years resolving disputes both in and out of court. He knows how to prepare documents and execute transactions in a way that avoids or mitigates legal risks. He can be reached at 416.528.5280. or email@example.com.
Michael Carabash is your business law adviser. He is an entrepreneur at heart who helps you see the big legal picture. He drafts clear and effective agreements that protect your rights while promoting your interests. He can be reached at 647.680.9530. or firstname.lastname@example.org.
Ljubica Durlovska is your transition lawyer. She helps you with staff and associates, maintaining your corporation, and other business matters. She can be reached at 416.443.9280, extension 206 or email@example.com.
Jonathan Borrelli is your employment lawyer. He helps you with staff and associates matters, including hirings, terminations, switching staff to written contracts and resolving disputes. He can be reached at 416.443.9280, extension 204 or firstname.lastname@example.org.
Benjamin Kong is an experienced business law clerk. He assists David and Michael with corporate matters and purchase / sale transactions. He can be reached at 416.443.9280, extension 207 or email@example.com.
Julie Whitehouse is an experienced business law clerk. She assists David and Michael with corporate matters and purchase / sale transactions. She can be reached at 416.443.9280, extension 203 or firstname.lastname@example.org.
David, Michael, Ljubica, Jonathan, Ben and Julie are a truly dynamic team. Their diverse knowledge, skills, and experiences will help you get the best deal possible while promoting your interests and protecting your rights. You can read dentist testimonials here.