What does an ASC need to do to syndicate to new physicians?

The preparation all depends on what stage of the life cycle that the surgery center is in and if it is a primary or secondary offering, but a good bit of the process is the same, so here is what you need to do to syndicate to new physicians.

You need to be aware that syndication involves the sale of securities-whether you are selling shares, or LLC Units or limited partnership units. Federal and state securities laws determine the manner in which the offering and sale of ownership interest must be conducted. Additionally securities laws control who can affect the sale of securities and how.

To ensure compliance with the securities laws, syndication almost always involve some form of disclosure documents, whether an offering memorandum, purchase agreement or similar instrument. The primary purpose of such a document is to fulfill the disclosure requirements of the Securities Act, while serving as a shield against any future charges of violating the anti-fraud provision of the securities laws. The documents will serve as an outline of the transaction and a tool for marketing the offering. The gist of the documents is to ensure you have an educated buyer, educated in the sense that they know what they are getting into. If this is a primary offering you will need to get the offering documents prepared. A primary offering is when the surgery center sells an equity position and receives the payment for the equity position.

If this is secondary offering-a secondary offering is when a current share holder sells their units and gets the money, you want to collect copies of the original offering documents, current financials, any contracts, debt etc. Because we give copies of all of the original documents that the current owner was given with update financial, case load, etc to the new physicians prior to them investing. We need to make sure they have all the information disclosed. When in doubt disclose it in writing.

Review your governing documents. You need to understand what the document state. You might need to update them for various reason and this is a good time to do it. For example if you are one of the founding members of an existing ASC or the rain maker you may want to consider carving out your ownership from some restrictions that you would apply to new owners. You can create different classes of shares such as the founding owner’s class shares. Depending on the circumstances, a carve-out from certain restrictions may be appropriate since you took the risk on the initial investment and developing the ASC. Additionally one of the surgery centers that I am working with historically has not had a non-compete. The market is fairly saturated and a non compete would add another road block to the recruitment efforts. What we did instead was to strengthen the 1/3 rule language where we include quarterly audits and a claw back provision if you are not meeting the 1/3 safe harbor.

Anticipate a new physician’s desires and know what you are willing to be flexible on. In some markets there are a limited number of physicians that can be recruited, well most markets now. Your openness to accommodate will help you in the recruitment efforts. The act of accommodating a physician often requires significantly less effort than the benefits it rewards you with secondary offerings even though one physician is selling some of their shares to another physician you need to make sure that the second physician is fully informed by giving them copies of all of the original documents and updated documents such as current ownership percentages, updated financials including any debt instruments, etc.

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