New Jersey Divorce Article

Considerations When Valuing and Distributing Private Equity
and Related Investments of High Net Worth Individuals in Divorce Matters

By Paul M. Gazaleh, CPA
and
Charles F. Vuotto, Esq.

August 7, 2002

Over the last several years many individuals of seemingly average means have become high net worth individuals. Unfortunately, as the nest eggs of one’s clients grow, so does the complexity of valuing and distributing such estates. Prior to the recent bull market, the assets in a traditional divorce included a house, cars, pensions and some equities such as individual stocks and mutual funds. This picture has changed significantly in the last decade. For example, individual 401(k) accounts for individuals of modest means could approach or surpass $1 million. If this is the valuation of the account of one with modest means, imagine the size and complexity of an estate of a high net worth individual.

As a result of the recent growth of the stock market, many high net worth individuals today are less satisfied with investing their money in a well-diversified portfolio and earning an average of eight percent per year. Historically, an eight percent compounded annual return has been a good benchmark return.[1] It approximates what pension fund administrators expect to earn on the assets they invest. However, in order to maximize their return, high net worth individuals are increasing their risk and finding alternative places to invest their money.

The focus of this article is on the investment options of high net worth individuals and discuss the impact of those options in matrimonial matters.[2] Each case is potentially different and it is important to approach every situation individually. This article is not intended to be a roadmap for any particular situation but rather address some of the issues to consider when handling cases with private equity investments of high net worth individuals. There are many considerations that should be carefully analyzed prior to distributing these assets, probably more than when making the initial investment decision. Among the considerations are the individual circumstances of the parties, the value and marketability of the assets and, of course, tax consequences. Information gathering, valuation and distribution of these items as well as other considerations will be discussed throughout this article.

Types of Investments

Tax Shelters & Other Limited Partnerships

One of the most common investments among financially sophisticated individuals prior to 1986 was limited partnerships designated as tax shelters. It was the choice of people looking for a legal way to reduce their annual tax liability. Many of these investments were specifically designed to report losses and reduce the taxable income of the limited partners. Since a limited partnership is a passive investment and at that time individuals could deduct the loss on a passive investment, the system worked in favor of those investors. Then the Tax Reform Act of 1986, signed by President Reagan, disallowed deductions for a passive loss (unless it was offset against passive income) and with one swipe of the pen, rendered many tax shelters virtually worthless. Limited partnership interests can still be bought and sold, but on a much smaller scale and for a mere fraction of what they once traded for. If you encounter the tax shelter investment, it is most likely a remnant from the last century when passive losses received favorable tax treatment. Be wary when distributing assets and addressing liability for past tax years in a divorce case where the parties own or owned tax shelters. There may be significant latent tax liabilities associated with these assets. Such tax liability may not be readily ascertainable and may require a strong indemnification provision in the agreement between the parties.

Not all limited partnership investments are tax shelters. There are many investments which are organized as partnerships where the investor receives a limited partnership interest which provides for reduced risk. A more detailed discussion of the risk of the various types of investments will be addressed later in this article. This type of investment can range from real estate to business ventures to collectibles. The time that one may realize a return on these investments, i.e. time horizon, will vary by investment and may affect a present valuation. Organizations such as the American Partnership Board provide a secondary market to buy and sell limited partnership interests. A recent transaction may provide an estimate as to the fair market value of the limited partnership interest.

Venture Capital Funds

Venture capital funds have been around longer than their recent popularity suggests. They have historically been limited to pension funds and ultra high net worth individuals. However, many funds have recently opened their investment doors to accredited individuals[3] investing smaller sums of money of between $100,000 to $500,000. A professional venture capital fund is generally a pool of money managed by professionals. The professionals frequently assume a management or oversight role and are paid a management fee plus a percentage of the gain from the investment by their investors. The venture capital firm takes an equity position through ownership of stock in the company in which it is investing. It also normally requires a seat on the board of directors and brings its professional money management skills to the new venture in an advisory capacity.[4] This type of investment requires no involvement on behalf of the investor and can be viewed as similar to mutual fund investing although with significantly more risk. The average time horizon for a venture capital investment is frequently five to seven years.[5]

Angel Investments

Angel investments are closely related to venture capital investments. This type of investment is made by high net worth individuals directly to a company seeking funds. The individual receives an equity interest in the company in return for the funds provided. Usually, there is no professional financial advisor who serves as an intermediary. This type of investment is comparable in risk to a venture capital investment, but the average time horizon is broader. An angel may or may not provide input into the operation of the entity.

If an investor has an angel relationship, it is not uncommon for the individual also to loan the company money. Official loan documents are generally prepared detailing the terms including an interest rate and payment schedule.

Subordinated Debt

Subordinated debt is another way for individuals to participate in a private company. Subordinated debt is typically defined as non-bank loans that are repaid after the senior debt in the event of a business failure. This type of debt is often provided in conjunction with an equity interest or contains rights to convert to equity.[6] Significant discounts may be applicable when valuing these types of investments to take into account the likelihood of realization in light of the priority of the debt.

Information Gathering/Discovery

Discovery is the most important, yet often the most difficult part of the process of valuing and distributing assets of high net worth individuals. It is important to ask for the right information from the initial document demand because it will be more difficult to obtain such information later in the litigation. Since high net worth individuals have many available options for investing their money, it is necessary to understand the nature of the investment. The risk and reward vary with each individual investment. Once you have received the requested information, the following items should be addressed:

1. Type of investment – e.g. is the investment a professionally managed pool of assets or is it subordinated debt?

2. Risk of investment – What is the likelihood of achieving the projections? Is there the potential to lose all or part of the investment?

3. Amount of original investment

4. Additional investments

5. Ownership percentage – What is the ownership percentage after the original and subsequent investments?

6. Distributions received

7. Future obligations – Will the investment require any future performance or funding?

8. Time horizon – What is the time frame for the potential to be realized and liquidity to be achieved?

9. Projected return on investment

10. Probability of achieving expected return;

11. Current status of project

12. Rights of investor – Does the investment include voting rights?

13. Restrictions on transferability of ownership

14. Liquidity – When will cash be received for the ownership interest?

15. Status of tests, trials, government approval, permits and authorizations

16. Governing Provisions of Stockholder’s or Partnership Agreements

17. Offers to buy or sell ownership interests in the entity

18. Exit Strategies (e.g. IPO, private placement[7], etc.)

The above items can form excellent interrogatory questions and a place to start when preparing for depositions.

Among the necessary documents are financial statements and tax returns for the prior three years (and, depending on the facts, five years), subscription agreements, and a listing of all contributions and distributions made by and to the investor since inception. A complete list can be very extensive, especially when valuing an operating business.[8] After reviewing the requested documents, the most important step in evaluating a private equity investment is having a dialogue with a principal or high-level manager or director of the investment. From this conversation, you will hopefully receive a greater understanding of both the nature of the investment and its status, thereby providing more than you would receive reading through the information provided through the discovery process. This approach may not always be successful. In this instance, a more formal approach such as interrogatories or depositions may be needed to obtain the appropriate information. In this event your clients will incur additional time and expense.

Do not overlook independent research as a means of gathering information. Examples of the resources available include Lexis, Westlaw, the internet and other computer search tools. These sources provide access to records such as Dun and Bradstreet Reports, 10-K reports (annual), 10-Q reports (quarterly), proxy statements and other SEC filings. Articles referencing the other party or subject investment in trade or financial news or periodicals can also be informative.

Methods of Distribution

Once an understanding of the investment and its value has been achieved, the client and his or her attorneys and advisors must assess the available options to determine the appropriate method of distribution. For most investments, an individual has two options when determining his or her future with the investment.

One option is to distribute the investment in-kind based on equitable percentages, i.e. the “in-kind” option. This option requires (1) an actual ability to divide the asset and (2) an intimate understanding of the investment and its risk as well as (3) a determination that the client has the financial wherewithal to forego liquidity. Another option is a distribution based on the current value of the investment, i.e. the “buy-out” option. This method requires a current valuation. Valuation methodology, tax impact and other factors then become key. The decision to distribute based on either the “buy-out option” or the “in-kind” option should be carefully analyzed on a case-by-case basis. Since the issue is fact sensitive, there is no rule of thumb.

Methods of Valuation

The more common approach is the “buy-out” option, which distributes the asset based on a current valuation. This option is generally preferred by the court systems especially with on-going business because it eliminates an ongoing relationship between the divorcing parties with regard to the asset, which decreases the chance of problems in the future.[9] While the “buy-out” method may eliminate future problems, it replaces future problems with current ones. The main focus now becomes valuation and there is not always an easy way to determine the value of a private equity investment. In some instances, it may be inequitable to force a current buyout where the potential return on investment is high but too speculative to determine at the given point in time.

The determination of value in most cases is a long and expensive process, which in some cases may cost more than the investment is worth. (Example: Valuation of a start-up Internet company). In other cases, some research could result in a reasonable estimation of value for purposes of distribution. We would caution you to disclose to your clients when relying on estimates because the actual value of the investment at the time of liquidity could be significantly different. The difference could be either lower or higher than the estimation.

Investments are typically required to submit periodic information to their investors. This information could come in the form of annual K-1 forms, tax returns and financial statements. This information is usually reported on the cost basis, which in some instances may reflect the fair market value of the investment. In most cases, however, it does not represent the fair market value. In the latter case, a valuation should be performed to distribute the asset fairly. Therefore, do not assume that the investment’s “Financial Statement” reflects the current fair market value of the asset, even if it is “marked to market.”[10]

Depending on the type of asset, the available information and remaining marital estate, there are different valuation methods that may be appropriate for the situation. The first method utilizes the information reported on the historical financial statements and tax returns. This method, called the “book value” method, calculates the fair market value of the investment based on the book value of the investment and the ownership interest. It reflects three components: 1) the initial investment, 2) subsequent contributions or withdrawals and 3) the investor’s percentage share of reported income or loss from the operating activity. As discussed above, in most cases this does not reflect fair market value. The information for this type of valuation is contained on the K-1 form filed by the entity for partnerships and limited liability companies. For other types of entities this information could be obtained by multiplying the ownership percentage by the total equity of the entity.

When available, a better approach to valuation may be consideration of recent valuations performed by the company. Many entities have obtained valuations for many purposes, including the purchase or sale of a partial interest in the entity, funding life insurance for buy-sell or cross-purchase agreements, private offerings, estate issues, prior divorces of other owners or other litigation. The information from the prior valuations could be used for the distribution of the assets in the present divorce matter. There are some limitations to this method because valuations for different purposes sometimes result in different values. For example, the buy-out of a founder of a business may include a premium to reflect the contributions of the founder, however, a valuation performed for liquidation may result in a lower valuation. These valuations may not be appropriate for your situation even though they were reasonable for their purpose.

The third approach, i.e., “return of investment”, requires some research. This approach includes an estimate of the appreciation on an investment where the actual returns won’t be determined until liquidation. This method is based on historical returns of similar investments or the projected return on the investment at hand. In many instances, prior to making a private equity investment, the potential investor is provided with a projected return on the investment. This may or may not be ultimately achieved. A discussion with the managing director of the investment should indicate if the investment is on target with the original projections. In some cases, the projections are updated to reflect the current status of the project. The next step is to apply the current projection to the investment and discount to present value. This will provide a reasonable valuation based on the available information at the time of valuation. It is important to educate your client that the actual return may differ significantly from the estimate used.

In the absence of a projection of the rate of return for the specific investment, average historical returns for other investments managed by the same group of professionals can also be used to approximate the fair market value. Another suggestion is to utilize average rates of returns of similar investments that are published by trade associations or experts in the field. For example, statistics are available for rates of return for venture capital funds. Although this approach may be the only economically feasible method to estimate value, the result will not provide a precise valuation. When using averages as the basis of the valuation calculation, the results could differ significantly from actual rates of return realized. It is recommended you utilize averages from comparable investments such as others in the same peer group rather averages of the market as a whole.[11]

Common Pitfalls

Since the return on the assets discussed above is higher than traditional assets, the risk is also higher. In this case risk includes more than just volatility in the fair market value. Volatility is an issue, especially with venture capital and angel investments, because the funds are placed with early stage companies that are not generating enough income to support their needs. On average, there is a high risk of failure for these type of companies. Failure generally means reduction of the investment on some level which could range from a small percentage decrease in value to complete devaluation. This issue could affect the decision to retain ownership of the assets and participate in the potential long-term appreciation or accept a cash distribution.

Volatility is an important consideration because most of these investments are not for the faint of heart, but there are also other issues to consider.

The nature of the investment is an important consideration. Most private equity investments are long-term growth investments where the reward is the appreciation of the security. There will be virtually no income generation or cash distributions available to fund support obligations. This issue needs to be addressed when allocating the assets and determining both the need for support and the ability to pay support.

Another common issue is potential liability. As mentioned earlier in this article, limited partnerships and other private equities are latent with tax and other liabilities. The issue is usually brought to light many years after the asset has been distributed and could result in a substantial cash outlay due to interest and penalties. In order to protect your client against any additional future liability, consider 1) a buy-out with indemnifications from the retaining spouse or 2) selling the asset prior to distribution, if possible. Note, however, that the sale will not protect your client from any liability resulting from the period in which they owned the assets. One suggestion for limiting the liability resulting from the period of ownership would be to obtain an indemnity agreement from his or her spouse. However, the indemnity agreement could be worthless if the spouse providing the indemnification does not have the requisite assets.

Conclusion

It is essential to keep in mind, when representing individuals of high net worth in divorce matters, that one cannot value and distribute an unknown asset. Therefore, one of the most essential functions that a matrimonial attorney must perform at the initial stages of a case is to identify all of the assets involved in the matter and gather the necessary information. This will allow you to make educated decisions that are appropriate for your client’s situation. In order to thoroughly pursue the discovery process against individuals of high net worth, complex and case specific interrogatories and document demands must be prepared which address an ever broadening pool of potential private equity and other investments. Early in the litigation, the attorney should seek the assistance of a forensic accountant to broaden or tailor discovery demands, as the facts and assets dictate. Such pre-discovery management will go a long way to getting to the heart of the issues at hand in the most timely and inexpensive manner possible.

As the economic health of the country continues to grow, it is safe to assume that the diversity and complexity of the assets of high net worth individuals will follow accordingly. As this trend continues, the matrimonial attorney must be flexible in his or her approach to discovery, valuation and distribution of such assets.

PAUL M. GAZALEH, CPA

Paul M. Gazaleh is a Certified Public Accountant and Vice President of The Chalfin Group Inc. He specializes in strategic planning and valuation services for entrepreneurial businesses. In addition, he calculates the value of retirement plans and prepares economic loss reports for personal injury, medical malpractice and wrongful termination matters. Mr. Gazaleh has been appointed by the Court to value closely held businesses and is a frequent lecturer for ICLE and other groups on topics such as valuing closely held businesses and professional entities and income tax issues.

Some Areas of Expertise

· Valuation of closely held businesses

· Preparation of economic loss reports

· Analysis and valuation of retirement plans

· Strategic planning with entrepreneurial businesses

· Preparation of business plans

· Assisting companies increase their value

· Design and implement incentive compensation plans

· Mergers and acquisitions

· Setup and formation of closely-held businesses

CHARLES F. VUOTTO, JR.

Mr. Vuotto was admitted to the Bar of the State of New Jersey and to the U.S. District Court of the District of New Jersey in 1986. He was graduated from Seton Hall University with a Bachelor of Arts degree in 1983 and from Ohio Northern University, Claude W. Pettit College of Law, with the degree of Juris Doctor in 1986. He is a member of the New Jersey State, Union and Middlesex County Bar Associations and a member of each association's Family Law Section. He was Past Chairman of the "Special Projects" Subcommittee, (1987-1989). He is also a member of the American Bar Association and its Family Law Section. Mr. Vuotto has lectured on Family Law on behalf of the New Jersey Bar Foundation. He continues to lecture to the public and the bar, including an annual seminar addressing the past year’s Family Law cases. Mr. Vuotto has published articles on the topic of Family Law and has assisted, with the rest of the Matrimonial attorneys of his firm, in preparing and presenting a Digest of Cases in conjunction with their annual seminar. Mr. Vuotto was appointed as a “Discovery Master” by the Superior Court and is an active panelist of the Union County Early Settlement Program and has served as a Blue Ribbon panelist for the Essex County Early Settlement Program.

[1] A recent New Jersey Supreme Court case (Miller v. Miller, 160 N.J. 408 (1999) )suggests 7.7 percent as a reasonable rate of return and provides an excellent summary of rates of return cited by other cases.

[2] This article will not address all potential assets of high net worth individuals since it requires an extensive analysis in and of itself. Examples of these assets are retirement benefits and stock options, the latter of which is growing in popularity and form a significant part of many marital estates. A listing of various kinds of options is as follows: a. Nonqualified Stock Options; b. Incentive Stock Options (ISO’s); c. Publicly Traded Options (“Puts” and “Calls”); d. Phantom Stock Plans; e. Phantom Stock Options; f. Excess Benefit Plans; g. Stock Appreciation Rights (SAR’s); h. Restricted Stock; i. Reload/Replacement Options; j. Indexed Options; k. Performance Grants; l. Cash Award Linked to Share Price; m. Unisys Plan (re-pricing of old options plus new options); and n. 75 percent plus 15 percent Stock Option if Deferred. Some other investments that will not be addressed in this article are hedge funds which commonly invest in publicly traded securities and real estate investment trusts (REITs) which, for the most part, are publicly traded.

[3] An accredited investor is defined by the United States Securities and Exchange Commission as any natural person whose individual net worth or joint net worth with that person’s spouse exceeds $1,000,000 or any natural person who had an individual income in excess of $200,000 in each of the two most recent years or joint income with that person’s spouse in excess of $300,000 in each of those years and has a reasonable expectation of reaching the same level in the current year.

[4] Kathleen Allen, Growing and Managing an Entrepreneurial Business (Boston, MA; Houghton Mifflin Company, 1999)

[5] National Venture Capital Association

[6] Kathleen Allen, Launching New Ventures (Boston, MA; Houghton Mifflin Company, 1999)

[7] Private placement is the process of raising capital from private investors (not public investors) by selling securities in a private corporation or partnership. Kathleen Allen, Growing and Managing an Entrepreneurial Business (Boston, MA; Houghton Mifflin Company, 1999)

[8] A complete list of documents to request should be tailored to the various types of investments involved. Among the items to be included are as follows: a. Year-end and Interim Financial Statements; b. Customer and Client Listings; c. Loan or Credit Applications; d. Inventory Sheets; e. Fixed Asset Registers; f. Employment Contracts With Key Employees; g. Key Man Insurance Policies; h. Lease Documents; i. Leasehold Improvement Records; j. Records of Short and Long-term Debt; k. Catalogs, Brochures, Articles in Trade or Popular Press; l. Prepaid Expense Documents; m. Payroll Records; n. Expense Summaries; o. Accountant Workpapers and Trial Balances; p. Adjusting Journal Entries; q. Books of Original Entry; r. General Ledgers; s. Bank Statements and Cancelled Checks; t. Sales Invoices; u. Listing of Accounts Payable and Accounts Receivable; v. Cash Receipts and Cash Disbursement Journals; w. Purchases, Sales and any Other Journals Maintained by the Business; x. Monthly Billings

[9] Borodinsky v. Borodinsky, 162 N.J. Super 437 (1978); Bowen v. Bowen, 96 N.J. 36 (1984).

[10] Internal Revenue Code Section 1256 defines the term “marked to market” as when the financial statements are reported as if the investment is sold for its fair market value on the last business day of the taxable year (and gain or loss shall be taken into account for the taxable year).

[11] Note that this article has not addressed all valuation approaches for closely held business, most notably Revenue Rulings 59-60 and 68-609, which require extensive analysis in and of themselves. The same applies to the issue of discounts for lack of marketability and minority interests.

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CHARLES F. VUOTTO, JR.
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