Selling your physiotherapy business is a major commercial decision. When you decide to sell your business, your next steps are to find a buyer and negotiate the commercial terms. Once you have negotiated the commercial terms of the sale, you will need to complete the legal process. This article will explain the key considerations to make if you want to sell your physiotherapy business. 

Due Diligence

When you are selling your physiotherapy business, you should expect your prospective purchasers to make enquiries about business operations when conducting their due diligence. As part of this process, buyers will want to look at your business’:

  • financial information;
  • business performance;
  • legal compliance;
  • major contracts; and
  • assets included in the sale.

You should prepare for the purchaser to request this information and be able to assist them.

If there are any contracts which are vital to your business’ operations, you should check if you can assign these to the purchaser. You may need to seek consent from the other party to each contract before you can do so.

Lease

The location of your physiotherapy business has likely been a key factor in its success. The purchaser will likely wish to continue to occupy the same premises. When you are selling your physiotherapy business, you have two options for handling the lease. You can either:

  • transfer the existing lease or sublease; or
  • surrender your lease, allowing the purchaser to enter into a new lease or sublease.

The sale of business agreement should set out the settlement obligations to either assign or surrender the lease. Therefore, you should decide with the purchaser how you will handle the lease before your lawyer prepares the sale agreement. 

Alternatively, you may be operating your business from a premises under a licence. This is common if you operate within a medical centre. In this case, you will need to surrender your licence to allow the purchaser to enter into a new licence to occupy.

Whichever your situation, you will need to notify the landlord of your plans to sell the business and obtain their consent. It is common for the landlord’s lawyer to prepare the relevant documentation and provide them to the purchaser.

Client Information 

Existing customers are important for the revenue of any business. If your physiotherapy business has a client list or customer database, you should include this in the sale. 

Privacy Considerations

If you are transferring your customer database, you will need to comply with Australian privacy laws. There are specific requirements that apply to the transfer of personal information during a business sale. As such, you should ensure that you are complying with these requirements and transferring the customer list in accordance with your legal obligations. 

It is good practice to:

  • de-identify any customer information that you provide to the purchaser during the due diligence process; and 
  • only disclose personal information necessary for them to assess the business.

Generally speaking, a seller will not always need to seek consent from the customers of the business to transfer their personal information if:

  • the purchaser is an APP entity or about to become one as a result of the purchase (i.e. an entity which is required to comply with the Privacy Act);
  • you are selling the business as a going concern; and
  • the purchaser plans to use the information in the same way and for the same purpose as you.

In some instances, you may have to obtain customer consent. This is typically the case where the purchaser may use the information differently after the sale. 

Equipment 

When you sell your physiotherapy business, you will likely need to sell your equipment (such as treatment beds). If you own the equipment outright, you should include it as part of the sale and include it in the purchase price. 

If you do not own the equipment outright, you will need to check your equipment lease and see if you can transfer it to the purchaser. You may need to seek consent to do so. The sale of business agreement should specify whether:

  • you will pay out this outstanding amount prior to completion; or 
  • the lease is to be transferred to the purchaser after completion. 

Employees

When selling your business, you will need to consider whether your existing employees will stay on with the purchaser’s new business. If the purchaser agrees to purchase the business and take on your employees, they will need to be re-employed by the purchaser. 

You will also need to negotiate who will need to honour any employee entitlements, such as:

  • personal leave;
  • existing working arrangements; and 
  • parental leave. 

If the purchaser does not agree to recognise these entitlements, you will need to pay them to the employees before settlement. 

If the purchaser does not agree to take on any employees as part of the sale, you will need to terminate all employees and pay out: 

  • any termination costs; and 
  • all outstanding employee entitlements.

Intellectual Property 

Intellectual property (IP) is crucial to any business. It can include:

  • your business name;
  • your domain name;
  • any social media channels;
  • your marketing materials;
  • trade marks; and
  • the content on your website.

An important aspect of selling your business is confirming that you are the legal owner of any IP assets you plan to sell. 

Restraint of Trade 

An important clause of your sale of business agreement will be a restraint of trade clause. This clause prevents you from setting up a new physiotherapy business, or working for another physiotherapy business, for a specified period and within a specified geographic area after you sell the business. As the vendor, you should make sure that the clause is reasonable. You will also need to make sure that you understand how the restraint clause works, as there can be consequences for breaching a restraint of trade clause. 

Key Takeaways 

If you have decided to sell your physiotherapy business, some of the key considerations to keep in mind include: 

  • which assets form part of the sale; 
  • handling customer information correctly; 
  • handling the lease transfer; 
  • transferring the IP of the business;
  • how you will deal with your employees; and 
  • the restraint of trade clause. 

If you have any questions about selling your business, contact LegalVision’s business sale lawyers on 1300 544 755 or fill out the form on this page.

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Jessica Coventry
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