Valuing Intellectual Property of an Early Stage Company

Congress shall have the power to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries

 US Constitution, Article 1, Section 8, Clause 8

The Issue

Intellectual property (IP) was recognized as having value by the founding fathers of the country.  As intangibles and intellectual property become the true source of where corporate value lies, correctly valuing IP takes on an increased level of importance.  IP refers to creations of the mind and the related rights to use these in commerce. While it certainly includes patents, trademarks, licenses and permits, it also includes internally developed knowhow related to manufacturing a product and/or developing a service.  Professor Baruch Lev of the Stern School at NYU has indicated that a significant percentage of the value of public firms is attributable to various types of IP, the bulk of which does not appear on their balance sheets. While the contribution of IP to overall firm profitability varies, what we do know is that it provides corporate owners with a decided competitive advantage which allows them to earn rates of return that exceed their respective costs of capital.  The upshot is that firms that have IP that is long-lived will also have market values of equity that far exceed their corresponding book values.

In cases where the firm is a startup that has IP but little or no revenue, valuing the IP is both complex and difficult. Because of these facts, the value of startup firm IP is often based on its reproduction cost. However, in those cases where there is a demonstrated market for the firm’s product that incorporates the IP, basing the IP value on its reproduction cost will almost certainly undervalue it. The reason for this outcome is that the return to the owners of the IP will likely be very high. Just think what the revenue might be if the owning firm licensed the IP to another firm and collected a 2% royalty rate on licensee sales that incorporated the IP. If the market is likely to be large and the firm owning the IP has the capacity to take advantage of the business opportunity, then the IP will have a value that far exceeds its reproduction costs.

But opportunity aside, startup risk for most early stage firms is very great, and while IP can mitigate this risk profile to some degree, the inability of a startup to exploit its IP will more than likely reduce its value to both the owners and potential acquirers.  One has no idea when sales will occur and how large they will be for firms that own IP but have limited or no sales history.  In these instances, any value attributed the IP will be uncertain and highly suspect.  Since IP values are in part determined by what a hypothetical licensee might pay in the form of a royalty rate, any selected rate—like expected sales—is subject to a great deal of uncertainty particularly where the IP is unproven.

But what if we knew what the range of sales would likely be in any future year and we also knew what the range of royalty rates might be? Knowing this, we could produce thousands of IP values based on randomly combining sales and royalty rates and arranging these in such a way that we form a distribution which shows the percentage of the total associated with each value.  These percentages are probabilities associated with each of the values produced.  The value of the IP is the sum of the product of each value multiplied by its associated probability. The beauty of this approach is that it does not require revenue projections which are notoriously optimistic and generally wrong both in terms of timing and size.  Below we report the results of employing this method to valuing IP of a startup firm with small first year sales.

 Case Study

Axiom’s client capitalized the costs of acquired technology, knowhow, trade secrets and identifiable costs incurred to develop, file, and defend the company’s patents and new patents or provisional patent applications. This knowledge base allowed the firm to produce proprietary chemical products that eliminated harmful microbes in a variety of customer settings.

Axiom undertook a comprehensive FASB 142 Step 1 analysis of the assumptions made by management which is the basis of its baseline forecast. This included a review of source-based market analysis undertaken by management and its consultants. In addition, we tested to see whether the number of customers implied by their projections is reasonable in light of recent developments at the company. Management has also provided details on its sales pipeline as substantive backup to its projections.

Based on this analysis we concluded that the IP may be impaired and that a determination of the fair value of the IP is required.  Since the firm had relatively little revenue and projections were generally unreliable, we used a Monte Carlo approach which required the following information:

  1. Current annual revenue
  2. Revenue growth range for each projected year over the eleven year economic life of the IP
  3. Range of royalty rates
  4. Cost of capital

The only input that is problematic in this analysis is item two above.  Axiom developed a unique data set which shows revenue growth rates for startup firms by industry for each year after each firm’s formation.  This data set was the basis for revenue growth ranges used in the Monte Carlo.  The essential characteristic of startup firm performance is that revenue growth could be 300% in one year and zero or even negative in the next.  For startups and early stage firms, revenue growth is essentially random and the Monte Carlo framework can easily accommodate this randomness.

The range of royalty rates within an industry can be determined in a reasonably straightforward way since there is a great deal of data on royalty rates. In our case the range varied between 1% and 4% and the rate was randomly selected.  The analysis consisted of a Monte Carlo simulation that generated 1,000 random revenue growth rates over the 11 year asset life and 1,000 random royalty rates. These growth rates were applied to a starting revenue number which was then multiplied by a randomly generated royalty rate to calculate the royalty fee income. We then summed the present value of the after-tax royalty fee income and added back the implied tax amortization benefit to arrive at the fair value of IP for each of the 1,000 growth and royalty paths. The histogram of IP values is shown below:

Histogram of IP

 We used the histogram as the basis for determining the distribution that most accurately approximates the IP generating function.  Using this distribution, the probability weighted IP value was calculated. This value, $4,145,100, is the fair value of the IP.  The beauty of the Monte Carlo is that one can determine not only the expected value of the IP but the probability that the IP is within a certain range.  For example, the probability that the value of the IP is $12 million (1.2E+7) is about 1%, whereas the probability that the value of the IP is $3.2 million is 26%.

C Corp to S Corp Conversion

From February’s Axiom on Value

The Window to Elect S Corp Status for 2015 Closes March 15

Many business owners are completely focused on the day-to-day operation of their business.  For these owners, issues of ownership transition planning and optimal tax strategy at the owner’s exit are “nice to consider” but will be irrelevant if the company does not make it through next month’s payroll.  CPAs for these businesses try to educate their clients on the long-run implications of staying as a C corporation, the de facto structure when incorporating, but often run into a variant of “why bother? In the long run, we are all dead”.

The decision whether to elect S corporation is a complex one, and should only be done after reviewing with your advisors the pros and cons of both corporate structures.  However, we note that according to IRS statistics, most “small” businesses chose the S form at some point in their stage of development, so it is an issue worth serious consideration if the owner expects to sell the business, rather than close it down upon retirement.

 Major Difference in Taxes Paid in an Asset Sale between a C and S Corp

The primary reason to consider electing S corporation status is that there can be a significant difference in the taxes paid on the sale of a business in an asset transaction between an S corporation seller and a C corporation seller.  (If the buyer is willing to buy the corporate stock, then there may be little or no difference in taxes paid by sellers of a C or an S corporation).   In an asset transaction for a C corporation, the gains on tangible and intangible assets are taxed at the corporate capital gains rate, which is 35% at the federal level.  Then, when the corporation closes down, it will distribute the remaining cash as dividends, which in most cases are taxable at the individual level.  The effective tax rate can exceed 55% of the gain in the C corporation assets.

The asset sale of an S corporation after 10 years following the S election will be taxed at a much lower rate, since the capital gains are taxed at the individual capital gains rate, and there is no tax on distributions.

The 10 Year Window for the BIG Tax 

For companies that elect S corporation status, there is a 10 year window following the election when the C corporation tax structure will apply to the value created as a C corporation.  The IRS imposes a “Built-In Gain (BIG) tax on the gain in value of the company’s assets as of its conversion from C to S.  The gain in value over the value as a C corporation is taxed based on the S Corp rules.  Consequently, it is necessary to determine the value of the company and its tangible and intangible assets in their C status as of the conversion date.

If S Election is Made, a Business Valuation Should be Done

The valuation should be done using the conversion date as the effective date.  This valuation will be based on the financial statements of the business up to the conversion date, and on the outlook for the company as of the valuation date.

The valuation should determine the total fair market value of the business.  For larger companies, there should be an additional analysis to allocate the total asset value over specific tangible and intangible assets, in case there are sales of specific assets during the 10 year window.

This valuation will not be filed with the IRS upon its completion.  The valuation will stay with the corporation and its CPA for use in the tax calculations, if there is a sale of assets or the business during the 10 year window.  Having the valuation done just after the conversion date is the best way to maximize the rewards from building and operating a privately held business.

 S Corporation Basics (from IRS publications)

S Corporation Requirements

To qualify for S corporation status, the corporation must meet the following requirements:

– Be a domestic corporation
– Have only allowable shareholders
* May be individuals, certain trusts, and estates and
* May not be partnerships, corporations or non-resident alien shareholders
– Have no more than 100 shareholders
– Have only one class of stock
– Not be an ineligible corporation (i.e. certain financial institutions, insurance companies, and domestic international sales corporations).

Steps to Elect S Status:

Complete and file Form 2553:  No more than two months and 15 days after the beginning of the tax year the election is to take effect, or at any time during the tax year prior to the tax year the conversion is to take effect.

The Cost of Illiquidity in the Syndicated Loan Market

From July’s Axiom on Value:

Here we will address the issue of measuring liquidity in the syndicated loan market. The chart below measures the illiquidity of a set of syndicated loans in terms of the difference in yields to maturity. The difference is the YTM of the loan at the valuation date and the YTM of the loan if it were trading in a liquid market.  The latter YTM is generated using Axiom’s Credit Rating and Pricing Platform which has been shown to produce unbiased and accurate estimates of fixed income securities.

Yield Du to Liquidity Adjustments

As can be seen, the average adjustment in yield is between 3% and 5% which reflects the fact that investors require a sizeable liquidity premium for investing in an illiquid asset. However, for any given syndicated loan, the liquidity premium could be much higher than the average. The reason relates to a number of factors including but not limited to the following:
• The number of investors in the syndicate.
• Club deals are generally more illiquid than larger syndicates.
• Less familiar names underwritten by single investors are likely to have a larger liquidity premium than the average and the Club deal.

New Opportunities for Business Borrowers, The Bank Monopoly is Ending

From June’s Axiom on Value:

The bank monopoly on business lending is eroding, creating new opportunities for business borrowers to tap into the global pool of capital. Because banks have been focusing on strengthening their balance sheets and improving capital ratios, they are increasingly reticent to extend credit to businesses that are of lower credit quality but nevertheless credit worthy.  Credit funds and BDCs (Business Development Companies) have filled some of the void by directly underwriting loans, while the proliferation of capital raising platforms like FINEX  (https://fnex.com/) are presenting unique opportunities for business borrowers. These platforms connect business borrowers with new and non-traditional lenders including high net worth individuals looking for higher yielding credit worthy investments in a low interest rate environment.

In order to increase the probability of accessing debt capital on fair terms, borrowers need to provide potential lenders with a credit risk assessment in much the same way public firms hire a credit rating agency to rate a bond before it goes to market.  While such an analysis is not mandatory, Axiom’s experience working with lenders indicates that business borrowers are well served if they can formulate their own expectations as to firm credit risk and make it clear to prospective lenders the basis of this assessment. In this way, borrowers are well positioned to compare and contrast offers, while lenders will be able to initially assess the credit risk of the client and, based on this and other information they may require from the borrower, make a determination as to whether to make an offer.

For any given credit risks assessment, the terms of the offer to lend will cover three variables:

•          rate charged or coupon rate

•          maturity or tenor

•          call provisions

The rate on the loan is the base rate plus a spread or margin. The greater the credit risk, the greater the credit spread and hence the greater the cost of debt.   As an example, if the tenor of the loan is five years and Axiom’s credit rating is 13 which is equivalent to an S&P credit rating of B, then the rate on the loan would be 7% – 5 year Treasury rate or base rate of 1.73% plus a 5.27% spread, which is market spread for five year B rated credits at the time the analysis was done.   Keep in mind that the 5.27% spread reflects two factors – the credit risk of the business issuing the debt (corporate credit risk) plus the credit risk of the loan being issued which reflects what a borrower would recover if the firm defaulted.   Depending on the debt structure of the firm, the credit risk of the debt being issued could be very much higher than the corporate credit risk.

Finally, most loans have a penalty if the loan is paid off prior to maturity.  One way to reduce the interest on the loan for any given credit risk is for the borrower to give up the right to prepay the loan.  Loans have other requirements also known as covenants.  Covenants are guidelines that, if violated, may result in the loan being called by the lender. More typically covenant violations result in the borrower paying additional fees and the coupon is reset to a higher level.  Two common covenants are the leverage ratio (Debt/EBITDA) and the coverage ratio ([EBITDA-CAPX]/ Interest expense).   Like anything else, covenants are negotiable.

Business Valuation 101: The Five Myths of Valuing a Private Business

From May’s Axiom on Value:

As you work tirelessly to meet the everyday challenges of running your own business, you may wonder why you should be interested in a column on valuing your business. After all, valuation is something you will be concerned about some time in the future when there is “need” for a valuation. If you feel like this and you stop reading, you will be missing an opportunity to insure that your business will survive and prosper.

Understanding the factors that determine the value of any business will pay tangible dividends by focusing you on ways to increase your firm’s short and long-run profitability. Moreover, if you choose to sell your business at some point in the future, this knowledge will assist you in positioning your company to receive the highest price. Therefore, there is no time like the present to begin to understand what a business valuation is, under what circumstances a valuation is customarily completed, and the critical issues to watch out for when events dictate that you undertake a business valuation.

What is a Business Valuation?

We first turn to the central issue—What is a business valuation? To answer this question, consider the following example. You own IBM stock and you want to know how much it is worth. Well, all you have to do is pick up the business section of the daily newspaper or go to any financial website, locate the stock tables and multiply IBM’s closing price by the number of shares you own. Through this simple exercise, you have valued your IBM shares or what you would receive in cash if you sold your shares at the closing price.

In concept, valuing your private business is the same as valuing IBM stock. But, because your firm is private, there is no stock table that you can conveniently turn to. No need to worry, however, because there is a pseudo-science, or some say an art form, that provides the foundation for skilled business appraisers to estimate what your business is worth. The problem is that the valuation process is often viewed as a “black box.” As a result, a whole mythology has grown up around valuation of private businesses. To help de-mystify the valuation process, let me introduce you to my top five myths about valuing a private business and explain how to avoid the pitfalls these myths present.

Top 5 Business Valuation Myths

Myth 1: Valuing a private business should only be done when the business is ready to be sold or a lender requires a valuation as part of its due diligence process.

Although the business sales and lending processes generally require that valuations be completed, if these events represent the first time an owner has a valuation completed, then you can be sure critical business and estate planning issues have not been addressed. If the business is to have a life beyond that of its current owners, then effective planning for ownership transition requires a regular valuation of the business.

Ownership transition may include gifting some percentage of ownership shares to family members during the owner’s life, thus reducing any tax on the owner’s estate at death. If a firm has several owners, a buy-sell agreement with accompanying life insurance should be in place so that if an owner dies, the remaining owners have sufficient funds to purchase the deceased owner’s interest at an agreed upon value. The buy-out value under these agreements should be updated regularly to reflect the firm’s financial progress over time and the valuation approach used should be one of several acceptable to the IRS.

Myth 2: Businesses in my industry always sell for two times annual revenue (the revenue multiple). So why should I pay someone to value my business?

The short answer is that data on selling prices indicate that revenue multiples within an industry are generally all over the lot. These rules of thumb used by business brokers, the individuals who often facilitate private business transactions, are median multiple values. The median value indicates that half of the revenue multiples are below the median value and half are above. Thus, the median value is just a convenient midpoint and does not represent the revenue multiple for any actual transaction. Unless the firm that is being valued is truly a median firm, then using the industry rule of thumb for this purpose is clearly wrong.

For example, according to a well- known source for business transaction data, Pratt’s Stats, recent revenue multiples for firms in the auto parts industry ranged from a low of .98 to a high of 8.3 with a median of 2.9. If you were valuing your firm for sale and your annual revenue were $100,000, then the value of your business could be as low as $98,000, as high as $830,000, or somewhere in between. Where your firm lies along this continuum is obviously of the utmost importance and can only be determined by a valuation approach that incorporates academically validated methods with industry-specific valuation factors. Myth 4 below discusses the legal and tax implications of assigning a value to your firm that is outside a permissible range.

Myth 3: A local competitor sold his business for three times revenue six months ago. My business is worth at least this much!

Maybe yes and maybe no. What happened six months ago is not really relevant to what something is worth today. What your business is worth today depends on three factors: 1) how much cash it generates today; 2) expected growth in cash in the foreseeable future; and 3) the return buyers require on their investment in your business. First of all, unless your firm’s cash flows and growth prospects are very similar to the competitor firm, that firm’s revenue multiple is irrelevant to valuing your firm. Moreover, without getting into the nuances of finance, even if the competitor firm was equivalent to yours in every respect and both firms were sold today, if interest rates were higher today than 6 months ago, the firms would likely sell for less than three times revenue. Conversely, if rates were lower today than six months ago, the firms may be worth more than three times revenue. In short, the value of your business, like the value of IBM stock, is likely different today than six months ago because economic conditions have changed.

Myth 4: How much a business is worth depends on what the valuation is used for!

The value of a business is its fair market value (FMV). According to the Internal Revenue Service, the FMV is what a willing buyer will pay a willing seller when each is fully informed and under no pressure to act. While there may be a FMV range, the wider the assigned valuation range is, the less reliable is the valuation and the more likely it becomes that the valuation will face greater scrutiny from potential buyers or the IRS.

Consider the example of a parent selling a business to a child. The incentives to assign a low valuation under these circumstances are significant. Given that the parent pays taxes on the difference between the value of the stock sold to the child and its value on the firm’s books (book value equity), establishing a low value on the firm’s stock results in the parent minimizing the capital gains tax owed to the IRS. The child, on the other hand, has to come up with less money, because the sales price of the business is much lower than its FMV. These types of transactions are common and the IRS is always looking for abuses. Alternatively, an owner of a business may make a charitable contribution of company stock. In this case, there is a significant incentive to place the highest possible value on the donated shares, because this will result in the largest charitable tax deduction. If the value of the donated shares is outside the FMV range, an IRS audit may well be in the donor’s future.

Myth 5: Your business loses money, so it is not worth much.

Most private businesses appear to lose money. Appearances, however, are often misleading. Not long ago, a friend of mine was considering buying an auto parts business in California. The asking price was approximately $950,000 and, according to the firm’s tax return, it hardly made a profit. Like many businesses of this type, this business was generating a great deal of cash, but this cash was masquerading as legitimate expenses. One expense category really stood out—payments to officers. This payment included the owner’s wage of $80,000 per year and a bonus of $150,000 that the owner paid himself at the end of year. The $80,000 wage is what the business would have to pay a stranger to do the same job as the owner. This was a real expense. The $150,000, on the other hand, represents what finance people call a return to capital. It is the cash the business generated and it is this cash that determines the value of the business.

Unlike public companies, the separation between ownership and management does not really exist in a private firm. Thus owners have some discretion over how they categorize cash flow generated by the business. Quantifying the size of these discretionary expenses is often a critical determinant of the firm’s value. As such, owners should keep a tab on what these discretionary expenses may be so that, when they are ready to sell the business, they can document these facts to the buyer. By doing so, the seller increases the buyer’s confidence that the business does legitimately generate the cash the seller claims and, accordingly, increases the buyer’s willingness to pay the asking price for the business.

In the final analysis, there are many important reasons that business owners should know the value of their businesses long before they decided to sell. By understanding the basics outlined above, you should be able to successfully plan the financial future of you and your family by understanding the value of your most important asset—your business.