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REDEEMABLE NON-CONTROLLING INTEREST | 9 Months Ended
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Sep. 30, 2019
REDEEMABLE NON-CONTROLLING INTEREST [Abstract] |
REDEEMABLE NON-CONTROLLING INTEREST | 6. REDEEMABLE NON-CONTROLLING INTEREST Since October 2017, when the Company acquires a majority interest (the “Acquisition”) in a physical therapy clinic business (referred to as “Therapy Practice”), these Acquisitions occur in a series of steps which are described below.
| 1. | Prior to the Acquisition, the Therapy Practice exists as a separate legal entity (the “Seller Entity”). The Seller Entity is owned by one or more individuals (the “Selling Shareholders”) most of whom are physical therapists that work in the Therapy Practice and provide physical therapy services to patients.
| 2. | In conjunction with the Acquisition, the Seller Entity contributes the Therapy Practice into a newly-formed limited partnership (“NewCo”), in exchange for one hundred percent (100%) of the limited and general partnership interests in NewCo. Therefore, in this step, NewCo becomes a wholly-owned subsidiary of the Seller Entity.
| 3. | The Company enters into an agreement (the “Purchase Agreement”) to acquire from the Seller Entity a majority (ranges from 50% to 90%) of the limited partnership interest and in all cases 100% of the general partnership interest in NewCo. The Company does not purchase 100% of the limited partnership interest because the Selling Shareholders, through the Seller Entity, want to maintain an ownership percentage. The consideration for the Acquisition is primarily payable in the form of cash at closing and a small, two-year note in lieu of an escrow (the “Purchase Price”). The Purchase Agreement does not contain any future earn-out or other contingent consideration that is payable to the Seller Entity or the Selling Shareholders.
| 4. | The Company and the Seller Entity also execute a partnership agreement (the “Partnership Agreement”) for NewCo that sets forth the rights and obligations of the limited and general partners of NewCo. After the Acquisition, the Company is the general partner of NewCo.
| 5. | As noted above, the Company does not purchase 100% of the limited partnership interests in NewCo and the Seller Entity retains a portion of the limited partnership interest in NewCo (“Seller Entity Interest”).
| 6. | In most cases, some or all of the Selling Shareholders enter into an employment agreement (the “Employment Agreement”) with NewCo with an initial term that ranges from three to five years (the “Employment Term”), with automatic one-year renewals, unless employment is terminated prior to the end of the Employment Term. As a result, a Selling Shareholder becomes an employee (“Employed Selling Shareholder”) of NewCo. The employment of an Employed Selling Shareholder can be terminated by the Employed Selling Shareholder or NewCo, with or without cause, at any time. In a few situations, a Selling Shareholder does not become employed by NewCo and is not involved with NewCo following the closing; in those situations, such Selling Shareholders sell their entire ownership interest in the Seller Entity as of the closing of the Acquisition.
| 7. | The compensation of each Employed Selling Shareholder is specified in the Employment Agreement and is customary and commensurate with his or her responsibilities based on other employees in similar capacities within NewCo, the Company and the industry.
| 8. | The Company and the Selling Shareholder (including both Employed Selling Shareholders and Selling Shareholders not employed by NewCo) execute a non-compete agreement (the “Non-Compete Agreement”) which restricts the Selling Shareholder from engaging in competing business activities for a specified period of time (the “Non-Compete Term”). A Non-Compete Agreement is executed with the Selling Shareholders in all cases. That is, even if the Selling Shareholder does not become an Employed Selling Shareholder, the Selling Shareholder is restricted from engaging in a competing business during the Non-Compete Term.
| 9. | The Non-Compete Term commences as of the date of the Acquisition and expires on the later of :
| a. | Two years after the date an Employed Selling Shareholders’ employment is terminated (if the Selling Shareholder becomes an Employed Selling Shareholder) or
| b. | Five to six years from the date of the Acquisition, as defined in the Non-Compete Agreement, regardless of whether the Selling Shareholder is employed by NewCo.
| 10. | The Non-Compete Agreement applies to a restricted region which is defined as a 15-mile radius from the Therapy Practice. That is, an Employed Selling Shareholder is permitted to engage in competing businesses or activities outside the 15-mile radius (after such Employed Selling Shareholder no longer is employed by NewCo) and a Selling Shareholder who is not employed by NewCo immediately is permitted to engage in the competing business or activities outside the 15-mile radius.
The Partnership Agreement contains provisions for the redemption of the Seller Entity Interest, either at the option of the Company (the “Call Right”) or at the option of the Seller Entity (the “Put Right”) as follows:
| 1. | Put Right
| a. | In the event that any Selling Shareholder’s employment is terminated under certain circumstances prior to a specified date (the “Specified Date”), the Seller Entity thereafter may have an irrevocable right to cause the Company to purchase from Seller Entity the Terminated Selling Shareholder’s Allocable Percentage of Seller Entity’s Interest at the purchase price described in “3” below.
| b. | In the event that any Selling Shareholder is not employed by NewCo as of the Specified Date and the Company has not exercised its Call Right with respect to the Terminated Selling Shareholder’s Allocable Percentage of Seller Entity’s Interest, Seller Entity thereafter shall have the Put Right to cause the Company to purchase from Seller Entity the Terminated Selling Shareholder’s Allocable Percentage of Seller Entity’s Interest at the purchase price described in “3” below.
| c. | In the event that any Selling Shareholder’s employment with NewCo is terminated for any reason on or after the Specified Date, the Seller Entity shall have the Put Right, and upon the exercise of the Put Right, the Terminated Selling Shareholder’s Allocable Percentage of Seller Entity’s Interest shall be redeemed by the Company at the purchase price described in “3” below.
| 2. | Call Right
| a. | If any Selling Shareholder’s employment by NewCo is terminated prior to the Specified Date, the Company thereafter shall have an irrevocable right to purchase from Seller Entity the Terminated Selling Shareholder’s Allocable Percentage of Seller Entity’s Interest, in each case at the purchase price described in “3” below.
| b. | In the event that any Selling Shareholder’s employment with NewCo is terminated for any reason on or after Specified Date, the Company shall have the Call Right, and upon the exercise of the Call Right, the Terminated Selling Shareholder’s Allocable Percentage of Seller Entity’s Interest shall be redeemed by the Company at the purchase price described in “3” below.
| 3. | For the Put Right and the Call Right, the purchase price is derived from a formula based on a specified multiple of NewCo’s trailing twelve months of earnings before interest, taxes, depreciation, amortization, and the Company’s internal management fee, plus an Allocable Percentage of any undistributed earnings of NewCo (the “Redemption Amount”). NewCo’s earnings are distributed monthly based on available cash within NewCo; therefore, the undistributed earnings amount is small, if any.
| 4. | The Purchase Price for the initial equity interest purchased by the Company is also based on the same specified multiple of the trailing twelve-month earnings that is used in the Put Right and the Call Right noted above.
| 5. | The Put Right and the Call Right do not have an expiration date, and the Seller Entity Interest is not required to be purchased by the Company or sold by the Seller Entity unless either; the Put Right and the Call Right is exercised.
| 6. | The Put Right and the Call Right never apply to Selling Shareholders who do not become employed by NewCo, since the Company requires that such Selling Shareholders sell their entire ownership interest in the Seller Entity at the closing of the Acquisition.
An Employed Selling Shareholder’s ownership of his or her equity interest in the Seller Entity predates the Acquisition and the Company’s purchase of its partnership interest in NewCo. The Employment Agreement and the Non-Compete Agreement do not contain any provision to escrow or “claw back” the equity interest in the Seller Entity held by such Employed Selling Shareholder, nor the Seller Entity Interest in NewCo, in the event of a breach of the employment or non-compete terms. More specifically, even if the Employed Selling Shareholder is terminated for “cause” by NewCo, such Employed Selling Shareholder does not forfeit his or her right to his or her full equity interest in the Seller Entity and the Seller Entity does not forfeit its right to any portion of the Seller Entity Interest. The Company’s only recourse against the Employed Selling Shareholder for breach of either the Employment Agreement or the Non-Compete Agreement is to seek damages and other legal remedies under such agreements. There are no conditions in any of the arrangements with an Employed Selling Shareholder that would result in a forfeiture of the equity interest held in the Seller Entity or of the Seller Entity Interest. For the three and nine months ended September 30, 2019 and September 30, 2018, the following table details the changes in the carrying amount (fair value) of the redeemable non-controlling interests (in thousands):
|  | Three Months Ended |  |  | Nine Months Ended |
|  | September 30, 2019 |  |  | September 30, 2018 |  |  | September 30, 2019 |  |  | September 30, 2018 |
Beginning balance |  | $ | 133,366 |  |  | $ | 117,027 |  |  | $ | 133,943 |  |  | $ | 102,572 |
Operating results allocated to redeemable non-controlling interest partners |  |  | 2,379 |  |  |  | 2,456 |  |  |  | 8,152 |  |  |  | 6,802 |
Distributions to redeemable non-controlling interest partners |  |  | (1,636 | ) |  |  | (2,497 | ) |  |  | (6,799 | ) |  |  | (6,576 | )
Changes in the fair value of redeemable non-controlling interest |  |  | 922 |  |  |  | 8,681 |  |  |  | 10,752 |  |  |  | 18,106 |
Purchases of redeemable non-controlling interest |  |  | (1,459 | ) |  |  | - |  |  |  | (6,344 | ) |  |  | - |
Reduction of non-controlling interest due to sale of USPh partnership interest |  |  | - |  |  |  | - |  |  |  | (6,132 | ) |  |  | - |
Acquired interest |  |  | 6,230 |  |  |  | 3,282 |  |  |  | 6,230 |  |  |  | 8,145 |
Sales of redeemable non-controlling interest - temporary equity |  |  | - |  |  |  | - |  |  |  | 2,870 |  |  |  | - |
Notes receivable related to sales of redeemable non-controlling interest - temporary equity |  |  | - |  |  |  | - |  |  |  | (2,870 | ) |  |  | - |
Other |  |  | (1 | ) |  |  | (43 | ) |  |  | (1 | ) |  |  | (143 | )
Ending balance |  | $ | 139,801 |  |  | $ | 128,906 |  |  | $ | 139,801 |  |  | $ | 128,906 |
In conjunction with the sale of the Company’s 50% interest in a partnership to the founders in 2019, the redeemable non-controlling interest related to this partnership was reduced. For the nine months ended September 30, 2019, the Company purchased additional interests in seven partnerships for an aggregate price of $6.0 million of which $5.7 million was paid in cash and $0.3 million in seller notes. The seller notes are payable in two equal installments plus accrued interest. The excess of the purchase price over the recorded value of the interests (redeemable non-controlling interests) was $0.4 million. The $0.4 million, net of tax of $0.1 million, was recognized directly in retained earnings in accordance with current accounting literature. Also during the nine months ended September 30, 2019, the Company sold various interest in the three partnerships for an aggregate price of $2.8 million, in exchange for notes receivable payable based on distributions of the specific partnerships. The Company continues to own an interest in all three of the partnerships. The following table categorizes the carrying amount (fair value) of the redeemable non-controlling interests (in thousands):
|  | September 30, 2019 |  |  | September 30, 2018 |
Contractual time period has lapsed but holder’s employment has not been terminated |  | $ | 40,958 |  |  | $ | 34,587 |
Contractual time period has not lapsed and holder’s employment has not been terminated |  |  | 98,843 |  |  |  | 94,319 |
Holder’s employment has terminated and contractual time period has expired |  |  | - |  |  |  | - |
Holder’s employment has terminated and contractual time period has not expired |  |  | - |  |  |  | - |
|  | $ | 139,801 |  |  | $ | 128,906 |

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