Anatomy of Negotiation: Talking to Corporate Consolidators

Everyone becomes involved in a negotiation at some point in their career, whether or not they initiate it. A negotiation is a process in which two or more parties attempt to resolve differing needs and interests through a series of communications. It is a fact of life, especially in business, that people have conflicts that need to be resolved through a sometimes uncomfortable discussion, but there are strategies that can help you through the process.

Why Are Negotiations Needed

An employer may want to offer someone higher wages, but needs to consider the overall profitability of a practice. Meanwhile, an employee may understand and support the need for a thriving practice, but also needs to earn a certain wage to support his or her family. Employers and employees negotiate because they each have what the other one needs, and they believe they can obtain a better outcome through the process than if they simply accept what the other party is offering.

Sometimes, negotiations occur because the status quo is no longer acceptable for one or both parties. Negotiations take finesse because, besides dealing with specific tangible points (wages, insurance benefits and workplace perks, as just three examples), emotions play a part and ongoing relationships are involved. The parties are choosing to try to resolve their different positions through discussions, rather than arguing, ending the relationship, having one person dominate the relationship or taking the dispute to another party with more authority.

Negotiation Forum

Negotiations can take place in different forums and choosing the right forum can be a critical factor in a successful negotiation. These forums are not mutually exclusive and the value of each depends upon different factors, including the location of the parties, the time available for negotiation, and each party’s comfort level with negotiating. One of the most effective methods of negotiation is the face-to-face negotiation. This is particularly true if the parties are sophisticated and experienced negotiators. The advantages of negotiating face-to-face include that the parties can devote all or most of their attention to the negotiation without distraction; being in the same room increases the urgency to achieve a resolution, and savvy negotiators can read the body language and facial expressions of the other party, which is very useful in negotiation. A face-to-face negotiation is often not possible if the parties are in different jurisdictions or cannot commit a block of time to negotiations.

If the parties are unable or unwilling to meet face-to-face, negotiation can be done by telephone, email or text. In this day and age of increasing technology, this is how most negotiations take place today. As a side note, video conferencing can have many of the same benefits of face-to-face negotiation if the parties are in different locations. One downside of these non-face-to-face negotiations, especially email or text, is that it is often difficult to explain fully a party’s position on an issue with these methods, which can lead to misunderstanding and distrust, two characteristics that can be poisonous to negotiations. It can also take longer to complete negotiations as the parties can respond at their own pace to emails and texts. A savvy, sophisticated negotiator can use these delays to their advantage by preying on the insecurity and anxiousness of an inexperienced negotiator, who will often feel pressured or hurried into making a deal to avoid losing the opportunity.

Negotiation Terminology

Using the example of wages, employers and employee alike have a target point, which are the wages they would like the other party to agree to. The difference between what an employee wants to be paid and the employer wants to pay is the bargaining range. Meanwhile, the resistance point is where a party would walk away from negotiations; if too low of a wage or raise is proposed, an employee may begin job searching or a job candidate may decline an offer; the employer also has a point at which he or she will reject a wage request and end negotiations.

When the buyer (employer) has a resistance point that’s above the seller’s (employee), this situation has a positive bargaining range. The employer, in this case, is willing to pay more than the employee’s minimum requirements, so this situation has a good chance of being satisfactorily resolved. With a negative bargaining range, though, one or both of the parties must change their resistance point(s) for there to be a possibility of resolution.

In a wage negotiation scenario, either the employer will offer a starting wage or raise, or an employee or job candidate will request a certain dollar amount; the first person to name a dollar amount is making the opening offer. If at least one of the parties has a BATNA – best alternative to negotiation agreements – then he or she will probably approach the discussions with more confidence, having another alternative. So, if an employer offers someone a job, but has another excellent candidate waiting in the wings, the employer has another alternative and can set a higher and/or firmer resistance point. Conversely, if an employee or job candidate has a unique set of skills that are needed in today’s practices, that person probably has more options in the job market – perhaps even other pending offers. The quality of a negotiator’s alternatives drives his or her value by providing the power to walk away and/or set a higher and/or firmer resistance point.

Bargaining Styles

There is more than one type of bargaining style. One way to differentiate them is to divide them into distributive bargaining and integrative bargaining.

In distributive bargaining, parties’ needs and desires are in direct conflict with one another’s, with each party wanting a bigger piece of a fixed tangible such as money or time, so these negotiations are typically competitive. Parties are not concerned with a future relationship with the other person. A slang term for this type of negotiation is “playing hardball” or “one upping” someone. Strategies often include making extreme offers, such as an employer offering a very low wage or a job candidate asking for an exceptionally high one. Tactics include trying to persuade the other party to reconsider his or her resistance point because of the value being offered – in this example, the job candidate might say that a high salary was required because of his or her abilities or an employer could say that lower wages would be compensated by a great work environment.

With integrative bargaining, though, the goal is win-win collaborations that will provide a good opportunity for both parties. The employer would acknowledge the employee’s value and need for a decent wage, and negotiate accordingly, while the employee or job candidate would recognize the value of working at a particular practice as well as the fact that the employer has numerous other financial commitments to fulfill. They recognize that they need one another to maximize their respective opportunities and negotiate from a place of trust and integrity, with a positive outlook that recognizes and validates the other party’s interest in the transaction.

Here’s an interesting psychological truth. Negotiators are more satisfied with final outcomes if there is a series of concessions, rather than if their first offer is accepted; that’s because, in the latter, they feel they could have done better.

Negotiation Styles

To successfully negotiate, it’s crucial to clearly define the issues involved, and to prepare for the negotiations. Each party should be clear about his or her target point, opening offer, resistance point and BATNAs.

Multiple negotiation styles exist, each on the spectrum of assertiveness and cooperativeness. Here are summaries of common styles:

  • Competing (high in assertiveness, low in cooperativeness): these negotiators are self-confident and assertive, focusing on results and the bottom line; they tend to impose their views on others
  • Avoiding (low in assertiveness and cooperativeness): these negotiators are passive and avoid conflict whenever possible; they try to remove themselves from negotiations or pass the responsibility to someone else without an honest attempt to resolve the situation
  • Collaborating (high in assertiveness and cooperativeness): these negotiators use open and honest communication, searching for creative solutions that work well for both parties, even if the solution is new; this negotiator often offers multiple recommendations for the other party to consider
  • Accommodating (low in assertiveness, high in cooperativeness): these negotiators focus on downplaying conflicts and smoothing over differences to maintain relationships; they are most concerned with satisfying the other party
  • Compromising (moderate in assertiveness and cooperativeness): these negotiators search for common ground and are willing to meet the other party in the middle; they are usually willing to give and take and find moderate satisfaction acceptable

As long as both parties are committed to the business relationship and believe there is value in coming to an agreement, negotiations can typically proceed. If one or both parties, though, are unreasonable, uninformed or stubborn – or listening to advisors with those characteristics – negotiations can fall through. Other challenges exist when one party doesn’t necessarily need the deal, isn’t in a hurry or knows that the other party is without other options and/or in a time crunch.

Negotiation Fears

You may dread negotiation. If so, you’re not alone. Common reasons for this include:

You have not yet solidified your position: in this case, more preparation is clearly needed.

Fear of looking stupid: nobody likes looking foolish, so some people will avoid negotiations altogether rather than taking the risk of not negotiating well.

Liking people and wanting to make them happy (but perhaps not being able to give them what they want!)/not wanting to affect someone else in a negative way: if you are interviewing for a promotion at a practice, say, and you really like the practice manager, you may worry that negotiations will upset the manager or put her in a difficult position.

Fear of failure: some people would prefer to not negotiate at all, rather than making an unsuccessful attempt.

Feeling uncomfortable with money: some people were taught that it wasn’t polite to talk about money!

Some people have an aversion to conflict, overall, and so they avoid the potential of it by not negotiating. Yet, others feel vulnerable when negotiating. People tend to feel more confident during negotiations when it focuses on an area of their expertise and/or where solid evidence exists to back up the negotiations.

Women in particular are reluctant to negotiate, with only 7 percent doing so. They suffer the costs associated with not negotiating because they tend to have lower expectations, fear being considered a “bitch” and being penalized for negotiating. As a solution, women can consider framing their wants into the value that they will bring to the other party, and share how they can solve the underlying problem of the other party.

Areas where negotiating may not feel as intimidating include:

  • Negotiations for resources, whether it’s asking for more equipment or for a practice to hire more people
  • Negotiations about how to use resources; with a common purpose, solutions can be reverse engineered fairly easily
  • Negotiations where you have expertise
  • Negotiations with big companies where nothing is personal
  • Negotiations where you have evidence to support your position, including facts, data and logical reasoning

Salary and Benefits Negotiation Tips

Even though the examples given so far have focused on monetary compensation, when negotiating, don’t focus solely on wage or salary. Also discuss benefits offered and workplace perks – meaning the entire package. This can include, but is not limited to, health care coverage, life insurance, retirement programs, vacation time and flextime. If you’re job hunting, investigate what companies are offering. Where do you think the place you’re interviewing falls on that spectrum? What is the minimum pay level that you’re willing to accept? What is your preferred wage? What benefits are important to you?

If you want to work at a particular practice, but the pay rate isn’t quite what you want, ask if you can have a salary review in, say, six months. This doesn’t mean accepting a salary that is clearly sub-par, nor does it mean that you should try to put more pressure on a potential employer who is already offering you a good deal. It is simply something to consider in relevant circumstances.

What workplace perks might be desired? Would a company cell phone help you? Better equipment or software? If so, you could consider accepting somewhat lower pay if you get more tools to do your job.

Although telecommuting is seldom an option for veterinary staff, outside of perhaps financial or other purely admin functions, you could negotiate coming in half an hour later so that you can take your children to school or schedule a lunch break that coincides with when you need to pick them up. If you bring crucial skills to the negotiating table, you’re more likely to get these concessions than if you are entry-level.

If relevant, ask about practice policy if you become pregnant. How acceptable is the policy to you? How important of a negotiating point is this for you? What about if you are injured in the workplace? Educate yourself on your workplace rights before negotiations occur, as well as company policy. If you are valuable to the practice, perhaps you can negotiate some additional flexibility.

Who should be the first to make an offer? Some experts believe that, if you allow the other party to provide a starting dollar figure, he or she has shown his or her hand. But, research indicates that final figures tend to be closer to the original number stated than what the other party had originally hoped.

Negotiating with Corporate Consolidators

Your negotiations today are likely to be with a representative of a corporate consolidator. These individuals typically have business background, training and experience, often in banking or private equity. They are sophisticated negotiators. Be aware of the psychology involved in these types of negotiations, as these negotiators will tell you what you want to hear to gain your trust and confidence, and then will provide you with a written agreement that is vague and broadly written. This will work to their advantage as corporate consolidators have “deep pockets,” with experienced and tenacious lawyers on their side who are not averse to litigation. This alone can act as a deterrent to someone with fewer resources and less time to fight back. If you ask for more specificity in the agreement, they will say, “Trust me, things will be as I said.” They also may use pressure, either subtly or overtly, to get you to agree to their terms. For example, they will say that, if you do not sign this contract by a certain date, we will pull the offer and go with another candidate we are considering.

As mentioned above, a key element of an employment agreement that must be negotiated carefully is the restrictive covenant. This is even more critical when a corporate consolidator is the employer. In these instances, the covenant is typically broader and even more restrictive. One way this is done that is often not readily apparent on its face is in the definition of the location of the facility for the measurement of the geographical scope of the covenant and the definition of employer with whom you cannot compete or solicit employees, clients or referral sources. Since the corporate consolidators often have multiple locations in a geographical area, they try to measure the geographical scope from all of these locations, even though you may not be working at all of them. This can broaden the restriction greatly. Similarly, the definition of “employer” often includes the specific practice at which you will be working as well as the parent company, affiliates and subsidiaries of such practice. This is particularly troublesome with non-solicitation covenants, as you may not know the clients, employees and referral sources of all of these companies and thus could inadvertently violate the non-solicitation covenant. These tactics require careful negotiation on your part to limit the restrictions to the location where you will be working at and to your employer only.

Employment with corporate consolidators may seem attractive because of the many benefits they can offer. However, often these benefits are illusory. The employment agreement will typically provide that the employer can change any of these benefits at its sole discretion at any time. When negotiating this provision, the employer’s ability to change benefits should be limited to those provided to all employees, such as health insurance or retirement plans, and not to individually-negotiated perks such as paid time off, signing bonuses or payment of membership dues and licenses.

Although entering into an employment agreement with a corporate consolidator may give you the peace of mind that you have a secure and stable job, the reality is often different. Most employment agreements with these employers are for “at will” employment, meaning that the employer may terminate your employment at any time for no reason or advanced notice. Furthermore, while you may have limited job security in this scenario, you are even more at risk because you would be subject to the restrictive covenants upon termination. Attention should be paid to trying to limit the term of the restrictive covenant to the term of employment if less than one or two years. You could also try to negotiate that the restrictive covenant does not apply if you are terminated without cause. This may be difficult to achieve. You also want to negotiate a reciprocal termination right so that you are able to leave your employment without penalty upon notice to your employer.

For Best Results

Success is achieved when you first:

  • Determine the interests of the other party.
  • Embrace compromise.
  • Observe the Golden Rule, treating others as you would like to be treated: fairly and reasonably, without defensiveness.
  • Be prepared, both in factual information and in strategy.

Terms to avoid using during negotiations:

  • “Between” – giving a range tells them how low you would go.
  • “I think we’re close” – a savvy negotiator will recognize “deal fatigue” on your end and stall in the hopes that you’ll concede.

Following these guidelines will empower you to successfully negotiate for yourself with finesse. This will help you to resolve differences with whomever you are dealing with down the road, in all areas of your life.

Veterinary Nurse Versus Technician: the Pros and the Cons

The Veterinary technician profession has been subjected to variability since birth. Today, it faces a new, and hopefully positive, change with discussions about modifying the profession’s title to “veterinary nurse”. A movement lead by the National Association for Veterinary Technicians in America (NAVTA) has illuminated differing opinions between those in and outside of the profession.

Veterinary Technician History

The profession began in 1908 when the Canine Nurses Institute made its first organized effort to train English “Veterinary Assistants”. Over the next eighty years, the profession grew. First, the American Association of Laboratory Animal Science created three different levels of “animal technician” certifications at research institutions. Next, the US Army, Purina, and State University of New York (SUNY) established “animal technician” training programs in the 1960’s, which the AVMA then began regulating in 1967. The AVMA waited until 1989 to adopt the term “veterinary technician”, feeling until then that people would be confused with the “veterinary” modifier.

Michigan State University and Nebraska Technical Colleges were the first animal technical educational programs accredited by the AVMA. There are now 230 AVMA accredited veterinary technician education programs. Of these, 21 offer four-year degrees and nine offer distance-learning (online) options. Even before the AVMA adopted the term, the North American Veterinary Technician Association (now called the National Association of Veterinary Technicians in America) was formed in 1981. It works alongside the AVMA to protect the profession and encourages veterinary technician specialty developments. However, the profession has not grown uniformly across the United States.

In the United States, 37 states have established “veterinary technician” licensure, 10 states have non-profit organizations that implement voluntary credentialing, and 5 states/territories do not have any credentialing systems. This means that being a veterinary technician today could mean that either the state government regulates your credentialing, you are privately credentialed, or someone gave you the title “veterinary technician” when you started working at a veterinary practice and there is no credentialing system in your state.

Pros of “Veterinary Nurse”

The profession is fragmented by more than their state’s accreditations. Depending on their location, Veterinary technicians currently have varying titles. There are 19 states that use “certified veterinary technician”, 15 states that use “registered veterinary technician”, 14 states that use “licensed veterinary technician”, and Tennessee uses “licensed veterinary medical technician”. With this amount of fragmentation within the profession, how do we as veterinary professionals expect the general public to understand or trust a veterinary technician’s job description? As such a close-knit profession, we forget the foreignness of our commonly-used terms. Most clients underestimate the value of their veterinary technician simply by not knowing the education process. In fact, in a NAVTA survey to human nurses, 71% did not know the difference between veterinary assistants and technicians. Yet, we are baffled when we find that credentialed veterinary technicians are repeatedly unhappy and facing low income, compassion fatigue, lack of recognition and career advancement, underutilization of skills, and competition with individuals trained on-the-job. Due to this culture, the profession has incredibly high turnover rates despite its increased demand by the growing veterinary industry; veterinary technicians are projected to grow 30% by 2022.

How can we, without spending incredible amounts on advertising, uplift our veterinary technicians in the public (and practice’s) eye? Many have suggested using the familiar and applicable “nurse” title. The word “technician” implies an individual who has mastered veterinary science and technology, while “nurse” incorporates caring for animal patients into the description. Heather Predergast, RVT, CVPM, SPHR, a specialist with Patterson Veterinary Supply, Inc., discussed the need to abolish the profession’s fragmentation. She noted that “there has long been a need for common credentialing in this area. The responsibilities and job tasks of a veterinary technician have evolved over time and are inaccurately described by the term ‘technician’, implying a definition of their identify based on technical tasks. The term ‘veterinary nurse’ will incorporate the art of caring for patients from a patient-centered perspective, in addition to the science and technology.”

For these reasons, NAVTA has launched the Veterinary Nurse Initiative in an action to unite a single title, set of credential requirements, and scope of practice. This movement would hopefully provide recognition to the profession and elevate its credibility by requiring further education. Like human nurses, differing titles would recognize individual’s efforts for further education. To distinguish associate and bachelor’s degrees, NAVTA has proposed designating Registered Veterinary Nurse for associate degrees and Bachelor of Sciences in Veterinary Nursing for bachelor’s degrees.

Australia and the United Kingdom have already changed the name to “veterinary nurse” with large success. As the movement poses potential in the States, many academic institutions and corporations, such as Purdue, Midmark Corporation, and Patterson Veterinary Supply Inc. have published endorsements for its change; however, the initiative does face fair opposition.

Cons of “Veterinary Nurse”

Many veterinary technicians still opt to keep their current title. When questioned in a 2016 NAVTA survey, the majority of veterinary technicians (54%) favored the term “veterinary nurse”, over a third (37%) wanted to keep the title “veterinary technician”, and the remaining surveyed were undecided. Most of the pro-technician responders attributed their answer to disbelief that it will be possible to change the title. Some current veterinary technicians have voiced unease at their unsure futures after working their entire careers in a state that does not require licensure. Another similar situation arises for those that have passed the veterinary technician national examination but have not graduated from a school accredited by the AVMA committee.

While, ideally, this veterinary nurse initiative works to unify the profession and ensure quality standards, we must realize that we may be alienating a population of technicians at the end of their careers that would be offended if required to pay for an accredited teaching program and learn alongside new, inexperienced future technicians. Another important consequence to consider is liability. Currently, liability for veterinary technicians falls to the veterinarian on all cases; however, human nurses have their own liability to practice under their license governed by a separate board. This is a consideration essential to address as we raise the accountability of veterinary nurses.

The Veterinary Nurse Initiative has faced opposition outside of the profession as well. In fact, the veterinary technicians initially opposed to changing the name also noted conflict with human nurses in any past attempted title changes. The Veterinary Nurse Initiative investigated this further by sending a survey to three nursing groups. Two of the three declined to even acknowledge the survey, potentially indicating apathy for veterinary-related topics. Of the one group that did complete the survey, 66% did not object to “veterinary nurse”; however, regardless of whether or not they were opposed to the title change, almost all of the responders incorrectly assumed a veterinary technician’s educational requirements. An analysis of the opposed responses to the nurse title found that the objectors believed technician education was subpar to human nursing and the title was not deserved by veterinary technicians. It suggests that the human nursing profession worries about maintaining the quality of its own title and hopes to avoid misrepresentations.

In the past, other professions, not similar in scope to human nurses, have attempted to claim a “nursing” title. For example, a Christian medical community attempted to title their “spiritual healers” as “nurses”; however, they did not share nearly the same amount of education rigor. When confronted with a potential title change in the veterinary profession, human nurses mistakenly worry that the term “veterinary nurse” will also encompass veterinary assistants. This confusion highlights the need for public awareness of technicians – if the closest human counter-part profession does not understand a technician’s role or certification, how can we expect the general public to know any differently? The veterinary profession must raise awareness to the public about the differences between its assistants and technicians.

Currently, as the veterinary nurse initiative gains a foothold in Ohio, the Ohio Nurses Association and its 170,000 members have fought its new legislation, arguing that the state legally defines the term “nurse” as caring for humans and that no other person or profession may insinuate that they practice as a nurse. With similar nurse title protection in about 24 other states, the veterinary nurse initiative is likely in for its fair share of conflict as it continues to grow.

The debate over the title of veterinary technicians remains controversial both in and outside of the veterinary community. As with any impending change, it is important to recognize its potential benefits and shortcomings in order to formulate the best strategy to improve the profession. If the Veterinary Nurse Initiative ends up being successful, the change will likely empower today’s veterinary technicians and reduce the profession’s current high turnover rates.

 

Buy-Sell Negotiations: Ethical Disclosures or Buyer Beware

Buying or selling a veterinary practice generally is a long and arduous process. Preparation and a good lawyer are key to smoothing the bumps along the way.

I. PLANNING

How well you plan determines whether you will control the process or vice versa. Beyond identifying what is to be sold and the purchase price therefore, here is an overview of the main planning issues:

A. What Seller should be doing. Future retirees should note that it can take a decade to properly prepare a practice for sale.

  • Tax. Find out how the sale price will be taxed. Tax planning may require transformation of the practice legal structure and long waiting periods to optimize tax on sale. Bear in mind that the buyer may not accept the structure you wish to use for the transaction (e.g., he may prefer to buy assets rather than an interest in the practice entity.)
  • Practice Appraisal. To increase practice profitability and sales price, it may be worthwhile to get an appraisal. Implementing the appraisal’s recommendations may take several years. From the buyer’s perspective, a purchase without an appraisal may mean the practice does NOT have the cash flow to fund the purchase payments. If the buyer defaults on the payments, seller may have to take back practice, long after retirement.
  • Cleaning Up. Consult with your lawyer to see if there are any liabilities that should be taken care of before the sale (e.g., settle a claim). You also need to address any personal guarantees you have given to the business, and third party claims on any assets to be transferred (such as spouse and secured lenders). If the practice entity owns the real estate, you may need to divest it (at what tax cost?) back to yourself or another entity you own because the buyer may be unable to afford to buy both.
  • Financing. Many potential buyers can’t afford to pay cash and can’t get bank loans on acceptable terms. Consider whether you should provide financing by taking buyer’s promissory note (secured of course) for a portion of the purchase price.

B. What Buyer should be doing. Buyer’s planning phase usually is much shorter than seller’s. Try to minimize preparation expenses until you are reasonably sure that you have a deal with the seller. If the deal is aborted, you want to be as little “out-of-pocket” as possible.

  • Hiring Counsel. When hiring counsel, trust your instinct. If you don’t feel comfortable with him or her, get another one, there are plenty around. You find a good lawyer the same way you find a good doctor: by word of mouth. Your lawyer should be at least as smart as you are. Avoid lawyers that not nothing about assisting buyers purchase medical practices.
  • Tax. Find out how the sale can be structured to minimize taxes down the road for the new owner(s) and the practice, including taxes when you sell or withdraw from the practice. (Remember every buyer is destined to be a seller.)
  • Due Diligence. You don’t buy a house without visiting it, nor a car without a test drive. Buyers need to spend time at the practice to “kick the tires.” One of the most important goals of due diligence is to make sure buyers are not picking up hidden or poorly identified liabilities. Due diligence allows early detection of potential problems, so that the parties can address them…or separate. Not infrequently, good due diligence leads to a reduction in purchase price.
  • Financing. If you can’t pay cash, you need to line up financing (or be prepared to ask the seller for same) well before the sale.
  • Co-Ownership Issues. If you are just buying a portion of a practice or joining with other partners to buy a practice, there are many co-ownership issues that need to be addressed. Like marriage, co-ownership works a lot better if the principal terms governing the relationship before getting hitched. At least as much time and effort should be allocated to properly establishing and documenting your relationship with your partners, as to the purchase itself.
  • Investment Vehicle/Practice Structure. Unless you are buying into a pre-existing structure, consult with your lawyer to find the investment vehicle or practice structure best suited to fulfill your tax, financing and (co)ownership goals. (In making this choice, do not omit to factor in you succession or exit strategy.) Even if buying into a pre-existing structure, be aware of the consequences. For example, stock purchases are riskier than asset purchases because all of the liabilities of a corporation automatically are transferred with the stock, whether or not such liabilities were disclosed to buyer.

C. What Seller and Buyer should be doing Together.

  • Employees. The practice’s employees constitute its most valuable asset by far and it’s in the interest of both parties that the transition take place smoothly. For the buyer, smooth transition is critical, since the departure of one or more key employees can cripple the practice. While legally (to avoid trailing liabilities), the buyer will insist that all employees be terminated prior to the sale (and to the extent the buyer wants to retain them, rehired after the sale), it is up to the parties to work together to ensure that the ownership change disrupts the employees as little as possible.
  • Contracts. In asset sales where contracts are to be transferred (e.g. real estate and equipment leases), the consent of the other party to the contract is required. Obtaining such approvals is often easier when both buyer and seller approach such other party together (although as a contractual matter, it is almost always the seller’s responsibility to get these consents).

III. NEGOTIATING THE DOCUMENTS

A. Preliminary Documents. At some point during the preparatory stage, the parties usually negotiate some form of preliminary document which can range from: (a) a short letter of intent, pursuant to which the parties agree to negotiate in good faith with each other (in some cases exclusively) and confidentiality; to (b) a detailed memorandum of understanding detailing the process for going forward; to (c) an at least partially binding detailed letter of offer which sets forth the main terms of the deal. The parties should make absolutely sure they understand to what extent these documents bind them to go forward, and what liability, if any, a party will incur if he withdraws from the deal.

B. Purchase and Sale Agreement. While the preliminary documents set forth an intent, a process or a framework, the purchase and sale agreement (called stock or asset purchase agreement depending upon the transaction) is the contract in which the buyer binds himself to purchase the practice and pay the price, and the seller binds himself to sell the practice, in each case subject to a limited number of conditions precedent to closing the deal. Some conditions precedent are applicable to both parties obligation to close (e.g. no litigation exist challenging the transaction). Some are applicable to only one party (such as buyer obtaining satisfactory bank financing).

Other than the price and conveyance language, the most important clauses of the purchase agreement are seller’s representations and warranties, pursuant to which seller makes a series of declarations about the business (there are no hidden liabilities, there is no outstanding litigation against the practice; all inventory is saleable in the ordinary course, etc.) These provisions are designed to protect the buyer in case the practice isn’t what it appears to be, but the devil is in the wording, and both parties should make sure that they are comfortable with the language.

Another key clause is the non-competition provision (a.k.a. restrictive covenant) which prohibits the seller from competing with the practice for a certain period of time (e.g., five years) within a certain radius (e.g., 15 miles). This is an important provision to protect the practice’s goodwill.

III. TOWARDS CLOSING

Signing the purchase agreement means that the parties commit to consummate the transaction once all of the conditions to closing have been satisfied. Closing the transaction means actually transferring legal title to the shares or assets and paying the purchase price. Between these two dates, the parties and their lawyers do what is necessary to ensure that the closing conditions in the purchase agreement for which they are responsible will be satisfied by the closing date. (For example, buyer may have to obtain bank financing and seller get certain third party consents to the deal.)

In many cases, the signing of the purchase agreement and the actual closing of the transaction take place simultaneously, in which case there are no closing conditions.

***

The preceding was merely a simplified overview. It seems that there are a billion issues and details that seller and buyer must keep track of when selling and buying a practice. That’s why competent legal advice is crucial. But if you feel overwhelmed, just ask yourself how you’d behave if the transaction involved a house or a car. Usually the solution will come to you as if by magic.

PRACTICE ENTITY-WHICH ORGANIZATION IS BEST FOR YOU AND WHY IT MATTERS

Choosing the correct structure for your veterinary practice is an important decision with consequences reaching far into the future. Selecting your practice structure is definitely not a “do it yourself” project. Substantial tax, legal and accounting expertise is required. Veterinarians nevertheless need to stay active in the process to ensure the experts’ narrow technical proposals get folded into a coherent plan that reflects your needs and goals.

  • It’s Mostly About Tax. Tax considerations are the primary drivers in choosing a legal structure for a veterinary practice. The two key aspects are taxation of income/profits and taxation upon the sale or transformation of the practice. Don’t paint yourself into a corner by choosing a business structure without establishing a succession or exit strategy. Exit strategies should focus not only on your richly deserved retirement, but also on contingencies such as death or disability). Since the transformation of an existing business structures in anticipation of a sale or the buy-in of a new partner usually triggers adverse tax consequences, it is usually better to choose an initial structure with the necessary flexibility to handle new arrivals, departures and divestitures at minimum fiscal cost.
  • Liability Shield. In some structures such as partnerships, the owners are personally liable on their individual assets for the debts of the business. In others their personal assets generally are not at risk. Business structures, however, do not insulate veterinarians from liability arising from malpractice claims. But the shield works for almost all other claims, which in our litigious society are increasingly frequent. Unless you are an equine or food animal veterinarian, you generally have greater exposure to claims from your client’s “slipping and falling” in your hallway, than malpractice.
  • Flexibility and Formalities. Some structures allow more management flexibility and/or are less burdensome to administer than others. Veterinarians generally tend to ignore formalities which is a serious mistake. Courts regularly have looked past the liability shield and held owners personally liable when the owners have failed to observe the formalities separating their personal affairs from those of the practice entity.

AN OVERVIEW
The accompanying table compares the more common business structures from a liability, management and formality perspective (in simplified form). Following is a brief and much simplified overview of the tax characteristics of each entity.

1. Sole Proprietorships. Since sole proprietorships are not legally separate from the single owner, there is no separate tax return. The practice’s profits are included in owner’s total income and are taxed at his ordinary income tax rate. In addition to federal and (if applicable) state income tax, the owner must also pay self-employment tax equivalent to the payroll taxes due as if the owner were an employee of the practice.

Upon the sale of the sole proprietorship practice’s assets, the IRS will recapture all depreciation/amortization deductions taken by the owner/seller thereof and tax such amount at the seller’s ordinary income tax rates. In the unlikely event that any gain remains on the assets (after adding back any depreciation/amortization to their respective “bases” ) they will be taxed at the lower 20% long term capital gains rate (assuming the relevant holding period is met).

The buyer receives a “step-up” (increase) in his basis in the assets proportional to the amount of (purchase price allocated thereto) allowing him to re-depreciate/amortize them. Thus, asset sales usually are a better deal tax-wise for the buyer than for the seller, and all other things being equal, buyers will prefer to purchase assets rather than stock (in a C corp).

2. Partnerships. Partnerships are “pass-through” or “flow-through” entities for tax purposes, meaning that each partner includes in his own taxable income the profits (or losses) of the partnership, which are taxed as ordinary income at the partner’s individual rate (much like the owner of a sole proprietorship). Note that each partner’s share of partnership income is taxable each year, whether such share was distributed to the partner or retained in the partnership. If the latter, then the partner may not have the cash to pay the tax.

A consequence of the pass-through principle is that the sale of partnership interests are treated for tax purposes similarly to the sale of the underlying assets of the partnership (i.e., the assets are subject to depreciation recapture as in sole proprietorships).

3. Corporations. All corporations must file separate tax returns.

  • “S” Corporations. “S” corporations are corporations that elect to be taxed as a partnership. As “pass-through” entities, profits will be taxed in the hands of the shareholders whether distributed or not. An advantage of S corporations is that shareholders may take a portion of their profits as “S corporation profit,” free of payroll or self-employment tax (i.e., subject only to income tax). Profit corresponding to what the veterinarian shareholder would have earned as an employee is subject to payroll taxes in addition to income tax. (Sole proprietorships on the other hand must pay self-employment tax on all profits.) S corps are popular with veterinarians for this reason.
  • “C” Corporations. “Plain vanilla” corporations (called “C” corporations to distinguish them from “S” corps) are not “pass-through” entities and are subject to corporate income tax, usually at the 35% rate for veterinary practices. Distributed profits (dividends) are taxed as ordinary income in the hands of the shareholders. This “double taxation” discourages the distribution of C corporation profits. On the plus side, C corp profits are not taxed until distributed, pension plan contributions are not subject to the S corp limits, and employee-shareholders’ health benefits are not taxed. Veterinarians wishing to maximize their benefits will choose a C corp over an S corp.If the holding period requirement has been met, the sale of C corporation stock is taxed at the favorable 20% long term capital gains rate. The buyer does not receive a step-up in the basis of the underlying assets since he is buying the corporation stock. (The buyer can under certain circumstances elect to treat the transaction as an asset sale for tax purposes (a.k.a. a Section 338 election).)

4. Limited Liability Companies. Limited Liability Companies are very quite tax-wise. Single member LLCs can elect to be taxed either as a C corp or a sole proprietorship. Multi-member LLCs can elect to be taxed either as a C Corp or a partnership. Unfortunately, not every state allows veterinarians for form LLC (ie, California).

5. A Word Regarding Real Estate. If the practice owns its own real estate it’s better placed in a separate entity held by the owner(s) or held individually by the practices owner(s). This allows the owners to receive rent (which will be deductible from the practice’s income). Moreover, placing the real estate and the practice in the same legal entity frequently leads to problems because the buyer can’t afford to buy the real estate in addition to the practice.

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Choosing the correct business structure for your practice is important. Don’t treat it lightly.

SIMPLIFIED PARTIAL COMPARISON OF DIFFERENT BUSINESS STRUCTURES
(Ex tax issues)

 

Structure or Entity Type\Issue Liability Formalities/Flexibility
Sole Proprietorship

No entity; business co-mingled with personal assets

No liability shield

 

None. Just open your door and you’re in practice!
Corporations (“C” or “S” Corp) A Professional Corporation (“PC”) is identical to a C Corp in all respects except that only members of the same profession (e.g., vets) can own its shares

 

Shareholder not liable for debts/liabilities of corporation (unless “corporate veil is pierced” because shareholders fail to separate their personal affairs from corporations (e.g. by ignoring formalities) Must file documents with state secretary of state. Formalities are the most cumbersome of all entities. Less formal flexibility re management/profit sharing issues
Limited Liability Company (LLC)

(Created to provide more management flexibility than S Corp and “pass through” tax treatment )

Member not liable for debts/liabilities of LLC (subject to piercing corporate veil doctrine) Must file documents with state secretary of state; but management, profit sharing can be flexible.
General Partnership[i] Partners liable for debts/liabilities of Partnership; no liability shield Must file documents with state secretary of state, but management; profit sharing can be flexible.

 

[i] Limited partnerships are different from general partnerships. An LLP generally is formed among several limited partners who are normally passive financial investors and one general partner responsible for managing the enterprise. Limited partners normally are not liable for the debts/liabilities of the LLP, whereas the general partner is. Contrary to the motion picture business, real estate or oil and gas exploration, LLPs may not be appropriate for a veterinary practice where all the members are actively engaged in the enterprise.