SEC & Small Business:

Final Report of the SEC Government-Business Forum on Small Business Capital Formation

February 2002

This report has been compiled by the staff of the Division of Corporation Finance of the U.S. Securities and Exchange Commission. The views and recommendations in this report, however, are those of the Forum participants and not the Securities and Exchange Commission, the Commissioners or any of the Commission's staff members.

Preface

In September 2001, the SEC Government-Business Forum on Small Business Capital Formation met in Arlington, Virginia. The recommendations from the 20^th Annual Forum follow. We believe that many worthwhile proposals are evidenced. Participants gave careful consideration to a wide range of issues in both the taxation and securities regulation areas raised in prior Forums. One purpose of the Forum is to give the capital-raising needs of small business greater attention, with the hope that these needs may be accommodated, consistent with investor protection. It is apparent from the following Forum recommendations that this purpose has been well served. We thank all of the presenters and Forum participants for their efforts and are pleased to present this report.

Executive Committee for the
20th Annual SEC Government-Business Forum on
Small Business Capital Formation

Executive Committee

Chair:

Richard K. Wulff, Chief, Office of Small Business Policy Division of Corporation Finance U.S. Securities and Exchange Commission Jerry Arnold, Professor of Accounting, University of Southern California Mary E. T. Beach, Consultant Charles Bennett, Vice President, Syndicate Scott and Stringfellow, Inc. Janice Booker, Senior Advisor, Intergovernmental Relations Office of the Comptroller of the Currency Deborah Bortner, Director, State of Washington Securities Division Michael S. Caccese, Senior Vice President & General Counsel Association for Investment Management & Research Chip Cooper, Executive Director, Missouri Innovation Center Albert S. Dandridge, III, Mesirov Gelman Jaffe Cramer & Jamieson, LLP Mark Keam, Assistant Chief Counsel for Advocacy U.S. Small Business Administration Jerry Feigen, Adjunct Professor, Georgetown University Law Center; President, Jerry Feigen Associates Bruce Goldberg, Director, National Emerging Business Services PricewaterhouseCoopers LLP John J. Huntz, Jr., Fuqua Enterprises, Inc. Daryl Jackson, Deloitte Touche LLP Todd McCracken, Executive Director, National Small Business United E. Burns McLindon, Councilor, Buchanan & Mitchell (Representative of the American Institute of Certified Public Accountants) Lee Mercer, President, National Association of Small Business Investment Companies Marc H. Morgenstern, Kahn, Kleinman, Yanowitz & Arnson Co., L.P.A. (Representative of the American Bar Association) Mauri Osheroff, Associate Director, Division of Corporation Finance U. S. Securities & Exchange Commission Douglas F. Parrillo, Parillo Communications, Inc. Greg Riddle, Legislative Assistant, Biotechnology Industry Organization Martha Scanlon, Deputy Associate Director, Division of Research and Statistics, Federal Reserve Board Mark Schultz, Consultant Thomas Selman, Vice President, NASD Regulation, Inc. BettyeLynn Smith, President, National Association of Investment Companies Wayne Upton, Jr., Project Manager, Financial Accounting Standards Board Barry Wides, Director, Community Development Division, Office of the Comptroller of the Currency

Agenda

Taxation Discussion Leaders
		Daryl Jackson Deloitte & Touche LLP 701 Poydras Street Suite 3700 New Orleans, LA 70139 Russ Orban Assistant Chief Counsel for Tax Policy Office of Advocacy U.S. Small Business Administration 409 Third Street, S.W. Washington, DC 20416
Panel Presentations - September 6, 2001
Division Of Corporation Finance:
		David Martin, Director Michael McAlevey, Deputy Director Mauri Osheroff, Associate Director Richard Wulff, Chief, Office of Small Business Policy
Division of Investment Management:
		David Smith, Associate Director Nadya Roytblat, Assistant Director Kathleen Kniseley, Special Counsel Eric Purple, Special Counsel
Division of Market Regulation:
		James Brigagliano, Assistant Director    (Trading Practices) Paula Jenson, Deputy Chief Counsel Josh Kans, Special Counsel Thomas Eidt, Special Counsel
Panel Presentations - September 7, 2001
Bankruptcy as a Financing Alternative
	Moderator:	David Guthrie, Director Fuqua Ventures Atlanta, Georgia Brad S. Markoff Alston & Bird LLP Raleigh, North Carolina Bob Brody Merrill Lynch New York, New York Joe Guidzinski, Esq. U. S. Trustees Program Department of Justice Washington, D.C.
Recent Developments in the Credit Area
	Moderator:	William Reeves, Manager Community Development Lending Office of Comptroller of the Currency Washington, D.C. John Sower, Principal Mezzanine Capital Management, Inc. Jerry Gray, President SBA Lending Wells Fargo Bank James Hammersley, Director Office of Loan Programs U.S. Small Business Administration Washington, D.C.
Luncheon Speakers:
		J. William Hicks Professor of Law Indiana University, School of Law Bloomington, Indiana Jere W. Glover Counsel, Small Business Committee United States Senate Washington, D.C

2001 Forum Staff

Anthony Barone
Corey Jennings
Kevin O'Neill
Marva D. Simpson
Twanna Young

Table of Contents

1. Introduction

2. SEC-Government Business Forum on Small Business Capital Formation Recommendations

   1. Taxation

   2. Securities Regulation

3. Forum Participants

I. Introduction

The U.S. Securities and Exchange Commission hosts an annual forum that focuses on the capital formation concerns of small business as provided in the Small Business Investment Incentive Act of 1980. Thus, the SEC Government-Business Forum on Small Business Capital Formation has assembled for 20 years. A major purpose of the Forum is to provide a platform for small business to highlight perceived unnecessary impediments to the capital-raising process. Numerous recommendations have been developed at these Forums seeking legislative and regulatory change in the areas of taxation, securities regulation, financial services and state and federal assistance. Participants at the Forum typically are small business owners, venture capitalists, government officials, trade association representatives, academics and small business advocates. One format to develop recommendations for governmental action is the use of small interactive participant groups. In recent years, the Forum has typically included this feature. The 20th Annual Forum was held in Arlington, Virginia on September 6 and 7, 2001. The Forum is governed by an Executive Committee comprised of senior government officials and representatives of small business who have a strong interest and expertise with the issues and capital-raising problems of small business. The Executive Committee organizes, plans and implements the Forum.

The Executive Committee had determined that the focus of this year's Forum would be to revisit recommendations from the five previous Forums in the areas of taxation and securities regulation with a view to formulating them for the easy consideration of appropriate governmental officials and prompt implementation. The format of the sessions included panel discussions, luncheon presentations, consultations with Congressional staff and interactive break-out groups.

On the first day, welcoming remarks at this year's Forum were offered by David Martin, Director, Division of Corporation Finance of the U.S. Securities and Exchange Commission. There was then an opening panel discussion led by senior staff members of the Division of Corporation Finance, followed by a panel of staff members from the Commission's Division of Investment Management. Professor J. William Hicks of the University of Indiana School of Law gave the luncheon address. An afternoon discussion panel led by staff members of the Division of Market Regulation followed. Break-out sessions among the Forum participants were conducted.

On the second day, two panel presentations were offered, one relating to bankruptcy proceedings and the other about recent developments in the credit area. The luncheon address was offered by Jere W. Glover, Counsel to the Senate Small Business Committee. Following lunch the Forum participants gathered to consider the recommendations developed in the break-out discussions.

On both days, participants interested in tax policy matters met. Their program also included meetings with Congressional staff members specializing in taxation issues.

The Forum participant break-out sessions produced and endorsed the recommendations, which are highlighted in the following section of this report.

While the U.S. Securities and Exchange Commission hosts this annual convocation of small business friends and advocates, and is pleased to serve as such, it in no way seeks to sponsor or influence any of the Forum's recommendations. While a number of these matters are of substantial interest to the Commission as an institution, it takes no position on any of the recommendations. The views in this report are those of the Forum participants.

II. SEC-Government Business Forum on Small Business Capital Formation Recommendations

Taxation

INCREASE THE AVAILABILITY OF SECTION 1202 QUALIFIED SMALL BUSINESS STOCK.

The 1993 tax law changes in Sections 1202 and 1045 designed to attract capital to small businesses were a small first step in "leveling the access to capital playing field." They, however, are meaningless without critical changes. Under current law, the benefit of Section 1202 is negated by the operation of the Alternative Minimum Tax (AMT). Gains from "patient" investments of five years in qualifying small businesses are taxed at an effective rate of 19% when the AMT is applied, while gains from investment of one year in big businesses are taxed at 20%.

Recommended changes in order of importance are:

• Section 1202 gain should be exempted from AMT. Under the current AMT structure, 99% of the tax incentives created by IRC Section 1202 are taken away by the AMT.

• The tax rate on capital gains for Qualified Small Business Stock should be set at 50% of the rate on long-term capital gains. (For example, the current long-term capital gains rate is 20%, therefore qualifying section 1202 stock would be taxed at an effective rate of 10%.)

• Sections 1202 and 1045 should be available for investors in "Subchapter S Corporations" and other forms of legal entities, such as Limited Liability Corporations and Limited Liability Partnerships where the subject entities meet all other requirements of Section 1202.

• Expenditures that qualify under the working capital rules listed in IRC Section 1202 should be based on sound business judgment and not an arbitrary two-year limit.

• IRC Section 1045 should be amended so that investors in qualifying small businesses would have 180 days to "rollover" investments into other qualifying businesses rather than the current 60 days.

• The maximum capitalization level should be raised for qualification under Section 1202 from $50 million to $100 million.

CREATE A SAVINGS INCENTIVE MATCH PLAN FOR EMPLOYEES (SIMPLE) SECTION 125 CAFETERIA PLAN FOR SMALL BUSINESS.

Create a "SIMPLE 125 cafeteria plan" for small business entities that have no annual employer reporting requirements and no minimum participation requirements. The plan should not discriminate with respect to the type of small business entity, including sole proprietorships, partnerships (LLPs and LLCs), and corporations (including Subchapter S corporations). Shareholders and officers of these entities may also participate. The plan will encourage participation among employees and keep the plan simple without a "use it or lose it" provision, allowing contributions to be carried over between periods. For example, annual contributions could be limited to $5,000 per participant.

The existing SIMPLE pension plans appeal to small businesses that have found the more comprehensive Section 401(k) plans to be costly and administratively prohibitive. These same small businesses and their employees do not have access to Section 125 cafeteria plans due to rising costs and administrative constraints.

Under such a SIMPLE 125 cafeteria plan, employees of small businesses could designate benefit dollars for health insurance, health care, dependant care, long-term care, education and or retirement savings. By building reserves, employees will be more prepared for emergency needs and costly life events. As a result, the number of uninsured workers will be reduced and investment savings will be increased. These factors should stimulate the economy.

INCREASE THE CURRENT CONTRIBUTION LIMITS FOR SIMPLE PENSION PLANS TO MATCH SECTION 401(k) LIMITS.

SIMPLE pension plans have been successful in increasing retirement coverage for many small businesses' employees. The simplicity of forming the plans has allowed small business employers to offer increased retirement planning options to their employees. These employees may currently save for their retirement, but they do not have the ability under present inequitable law to save at the same level as participants in Section 401(k) plans who generally work for larger businesses.

SIMPLE pension plans may take the form of a SIMPLE IRA plan or a SIMPLE Section 401(k) plan. Elective deferrals for 2001 are limited to $6,500 ($7,000 for 2002) for both styles of plans. Current law allows the employer to make matching contributions of an equal amount. However, since many small businesses cannot afford this matching amount, the opportunity to make incremental deferrals for many small business employees is eliminated.

For 2001, participants in non-SIMPLE Section 401(k) plans may make elective deferrals of $10,500 ($11,000 for 2002). SIMPLE pension plan participants should be able to set aside a similar amount.

PROVIDE LIMITED RELIEF FOR TAXPAYERS WHO HAVE EXERCISED INCENTIVE EMPLOYEE STOCK OPTIONS (ISO'S) OR OTHER STOCK OPTIONS THAT CREATED ATM WHERE NO GAIN RESULTED.

Congress or the Administration should provide statutory or regulatory relief with regard to the AMT impact on small business compensation plans. The AMT statutes are being interpreted through regulations in a way that is inconsistent with the intent of the Congress.

It is well known that the AMT is an impediment to small business acquiring capital. It also may discourage employees from participating in the stock option plans of the company. In the interest of finding measures to provide adequate capital, and maintaining the confidence of key employees to invest their time and capital in the business, this Forum urges the Treasury Department to adopt the following regulations regarding AMT treatment of certain transactions.

• Regulations should be created so that in cases in which the taxpayer has exercised ISO rights resulting in an AMT, if the stock has subsequently suffered permanent impairment, and all the ISO shares have been sold, the AMT can be offset by any remaining AMT credit. If the credit occurs in a subsequent year, a carryback should be permitted.

• Where the taxpayer exercises ISO rights resulting in an AMT and the value at the end of the year is higher than the value of the exercise price, if the shares are restricted under Rule 144, Regulation S or by other contractual obligations, then the taxpayer should have the option to take the value as of the date that the restriction lapses instead of the value at the exercised date. The election must be made with the timely filing of the return of the exercise date year. The election is irrevocable.

• Make permanent changes to the AMT section of the tax code, which has a particularly negative impact on small businesses' ability to compete with larger companies for key management talent in their compensation packages, by giving the taxpayer the option to take the year-end value for AMT purposes. This more realistically reflects the actual value of the compensation (stock) received.

CREATE A UNIFORM NEXUS STANDARD FOR INCOME TAX REPORTING TO STATES.

The emergence of E-commerce has made new markets more accessible to small business. The benefit of these new markets is often offset by myriad state nexus standards. The compliance costs of these standards often eliminate profits. Small businesses are forced to stop sales or litigate their position(s). Small business sales may be too small in that State to justify the cost of litigation; thus complying and paying the state income tax will be the easiest way to proceed. Otherwise costly litigation or uncertainty can accompany the small business as it implements its plans.

Small business needs the Federal Government to guide the states in establishing uniform income nexus laws and "safe harbors." Therefore, it is recommended that the Federal Government, through Treasury Department regulations or recommended legislation, set standards establishing a uniform fair and consistent taxation scheme.

EXPAND AVAILABILITY OF CASH BASIS REPORTING FOR SMALL BUSINESSES.

A significant impediment to availability of capital for small business is the need to make tax payments to the IRS on profits that have been recognized but not received. Small businesses must often use scarce cash reserves to pay taxes on the excess of "accrual basis" profits above cash increases in cash balances (e.g., cash tied up in inventory, accounts receivable or leasehold improvements; 100% expenditures for entertainment or business meals when only 50% is deductible). To alleviate this problem, and preserve capital for small business, we suggest:

• Permit 100% deductibility for business meals and entertainment expenses (especially since such expenses are so vital to the operations of small business that rely so much on personal relationships).

• Permit shortened depreciable lives for leasehold improvements to mirror economic lease terms.

• Permit all small businesses to be on the cash basis of accounting when annual sales do not exceed $5 million.

NOTE: In December 2001, the IRS relented on the issue of the use of cash accounting and issued a Revenue Ruling that would allow businesses with receipts of $10,000,000 or less to elect cash accounting. The ruling would not apply to certain groups of businesses such as manufacturing, retail or wholesale businesses. The IRS estimates that as many as 500,000 small businesses could benefit from simplified accounting.

IRS FIELD OFFICES NEED A PRO-BUSINESS APPROACH.

The policy of the national office of the IRS has laudably moved to an equitable taxpayer service approach in resolving disputes and collection efforts. The intention with regard to small business is heartfelt and well deserved. This new policy has not migrated to field agents.

Most small businesses work diligently to fulfill their tax paying obligations, but it is difficult for them to absorb and comply with myriad statutory laws, rules and regulations. The IRS should view its prime objective as fully educating small businesses about their obligations and helping them to obtain the tools they need to file and pay their taxes correctly. There have been too many reported instances in which field operatives of the IRS approach small businesses with the presumption that they are trying to evade the tax laws; furthermore, they are non-conciliatory and act to punish when education and cooperation would be more productive and efficient. In particular, the imposition of discretionary penalties serves to defeat the ultimate collection of the underlying tax by creating an impediment to cash flow. In addition, the excessive size of statutory penalties and interest is disproportionate to the objective of the tax collection process. The management of the IRS needs to adopt strong managerial safeguards to ensure that the field offices are required to implement the Commissioner's commendable goals.

OMB/IRS STUDIES OF TAX COMPLEXITY.

We recommend that in the near future, Congress and the Administration concentrate on implementing laws and regulations that would simplify tax compliance and laws. It is the consensus of the Forum that the current tax laws and the regulations thereunder unduly hinder the ability of small business to attract and retain the capital necessary for formation and growth. There are a number of excellent studies, which members of the tax section have reviewed, that would serve as excellent starting points, for example:

• The 2000 IRS/OMB effort ("Annual Report from the Commissioner of the Internal Revenue Service on Tax Law Complexity") that contained a number of useful suggestions.

• The American Bar Association and the American Institute of Certified Public Accountants have released a joint proposal listing numerous simplification suggestions.

• The National Taxpayer Advocate puts out a list each year of taxpayer complaints and points of friction that includes a statistical analysis of the most troublesome areas.

• The Joint Committee on Taxation of the U.S. Congress has put out a study that has many useful suggestions.

Identifying the problem areas is a good first step toward reducing complexity and burden created by the existing laws, regulations and guidance. We propose that the IRS/OMB working group on this issue continue to meet regularly and bring to the attention of the President and Congress these areas of laws that need to be clarified and simplified.

INCREASE AND EXPAND THE AMOUNT A SMALL BUSINESS CAN EXPENSE UNDER IRC SECTION 179.

The expensing limit of IRC Section 179 was gradually increased to $25,000 (by the year 2003) as a result of the Small Business Job Protection Act passed by Congress in 1996. The expensing limit should be increased immediately to $35,000. Expensing is one of the most useful tax simplifiers for small business, but its use still remains limited. In addition, the $200,000 phase-out limit on purchases should also be increased. Today, one piece of machinery (even for a very small business) can exceed this limit, effectively eliminating benefits for many small businesses.

The Forum supports extending Section 179 expensing provisions to cover property fix-up and improvement costs. Small business storeowners should be able to expense the costs of improving their storefronts or the buildings that house their shops to remain competitive and to help ensure that the shops "on the downtown square" remain attractive shopping destinations for the communities.

Other items, such as standard software for business purposes or leasehold improvements, should also be considered as appropriate for expensing treatment. Software is cited specifically because it is a tremendous enhancement for productivity with a very limited useful life.

DEDUCTION FOR MEALS AND ENTERTAINMENT.

The Forum recommends the immediate repeal of the limitation of businesses in deducting business meals and entertainment expenses incurred in the ordinary course of business. Also, limit the required IRC Section 274 bookkeeping and recordkeeping requirements that are specifically related to the deductibility of business meals, entertainment and auto expenses. Many businesses, due to the constraints or location of their production facilities, must conduct business elsewhere, such as a restaurant. This would help small businesses to retain funds for productive investment.

100% HEALTH CARE DEDUCTION EQUITY.

Rather than wait two years for the full health care expense deduction to commence in 2003, equal treatment with large businesses should dictate that small businesses be able to deduct 100% of the cost immediately. The deduction should be allowed by the small business (and thus subtracted from the income the self-employed individual must report on his or her tax return). This would help small business owners to retain capital.

NET OPERATING LOSS CARRYOVERS.

So as not to impede the acquisition, merger or other consolidation of "loss" companies, Congress should repeal IRC Section 382 as it applies to any company that has less than $100 million in gross assets and would remain a going concern.

AMT AND SMALL BUSINESS.

The AMT is one of the costs to small business of acquiring capital. In the interest of finding ways to provide capital sources for small business growth, this Forum urges Congress to exempt all components of personal AMT that are generated by "small business." For the purpose of this exemption, a "small business" should be defined as one that meets the capitalization requirement as defined by Congress in IRC Section 1202 dealing with special small business stock (e.g., capitalization of less than $100 million).

TAX CREDIT FOR SMALL BUSINESS INVESTMENT.

As an incentive for investing in a small business, an investor should be given a 10% tax credit for an investment in a qualified small business (under $100 million in gross assets). The tax credit would be treated as a reduction of basis and would be recaptured if the investment were held less than five years.

SOCIAL SECURITY REFORM.

The inaction of Congress has contributed to the instability of the current Social Security system. Congress and the Administration must work together to enact legislation to make the existing Social Security system actuarially sound and to guarantee the commitments already made to all current participants. This should be done without placing additional new burdens on the present payroll tax system.

Securities Regulation

Securities Act of 1933

OFFER REGULATION.

The regulatory focus for private offerings should be on sales, not offers. In this regard, general solicitations should be permitted in private offerings at least where

• a disclosure document is used or required; and

• the sale does not close (or right of rescission exists) for x days after receipt of the disclosure document.

The restrictions on the use of general solicitations to make offers and sales under Rule 506 to accredited investors should be eliminated.

INTEGRATION.

The SEC should revise the integration provisions of Rule 502(a) by replacing the six-month integration test with a two- or three-month test as follows:

Offers and sales that are made more than two [or three] months before the start of a Regulation D offering, or are made more than two [or three] months after the completion of a Regulation D offering, will not be considered as part of that Regulation D offering, so long as ....

The SEC should reconsider the integration rules under Rule 502 to eliminate the present safe harbor time requirements and apply the five-part test only to subsequent offerings when the prior offering has not clearly terminated.

EXISTING REGISTRATION EXEMPTIONS.

The SEC should amend Regulation A to:

• return the review process to regional offices;

• increase the aggregate dollar limit from $5 million to $10 million;

• for those issuers intending to raise over $5 million, adopt the following financial statement requirements to replace current requirements (issuers seeking $5 million or less would comply with the current financial statement requirements):

  1. historical financial statements must at a minimum be reviewed in accordance with SAS 71 and be accompanied by an accountant's review report; and

  2. forecasted financial statements, if forecasts are included, must at a minimum be compiled by an independent public accountant and must support the registrant's sources and uses of funds calculations.

The SEC should shorten the aggregation periods in rules promulgated under Section 3(b) from 12 months to six months, and increase the aggregate dollar amount to, for example, 1.5 times the rule's current dollar limit.

The SEC should revisit the current dollar ceilings under all Section 3(b) exemptions.

The SEC should increase the ceiling of Rule 504 to $5 million.

NEW EXEMPTION FROM REGISTRATION.

The SEC should exempt all transactions of less than or equal to $2,500 per investor, per issuer, provided that the investment is less than or equal to 10% of the investors' net worth.

DISCLOSURE GUIDANCE.

The SEC should create a small business issuer manual similar to the "Accounting Manual" prepared by the Division of Corporation Finance. This manual should include a list of the most representative comments issued by the Division of Corporation Finance, including comments issued with respect to certain line item requirements, as well as general disclosure issues.

The SEC should create a task force to design a prospectus with a view towards increasing the readability of the document. The following are suggestions:

• improve the design of the prospectus to appeal to the reader;

• make the prospectus look more like an annual report or a magazine; and

• encourage, for example, greater use of graphics, color, different type fonts, white space and greater freedom to place disclosure sections at different locations in the prospectus.

There is a great deal of uncertainty regarding how issuers can conduct concurrent private and public offerings, including private equity lines and PIPES. The Forum recommends that the SEC develop guidance with regard to the following matters:

• the requirements to structure a valid Section 4(2) exempt transaction;

• the definition of "at market risk"; and

• an analysis of what constitutes a general solicitation, if the requirement is not eliminated, as suggested above.

STATE REGULATION.

The SEC should create ongoing dialogue with the states to facilitate use of the Regulation A exemption at the state level.

In an effort to eliminate the duplication of the state and federal disclosure review processes, each state should adopt a rule to provide that if an offering receives a full disclosure review by the SEC, the state will not raise disclosure comments for that offering.

Securities Exchange Act of 1934

REGULATION OF FINDERS.

The SEC should work on forming a self-regulatory organization for capital finders, such as the National Association of Capital Finders (NACF).

• The NACF would administer the licensing of capital finders and then "police" their activities. Capital finders would be required to take an exam that covers:

  1. capital structure and formation; and

  2. knowledge of the securities laws as they pertain to disclosure and fraud.

• The SEC should work on standard conduct provisions, such as:

  1. finders may not handle funds;

  2. finders may not negotiate; however, they may present investment terms set by the issuer;

  3. finders may charge success fees; and

  4. there must be available a private placement memorandum with at least the following information:

     1. the material terms of the transaction, such as the amount being raised, the type of security (i.e. common, preferred, etc.) and the percentage of the issuer's securities being offered to investors;

     2. a description of the issuer's business;

     3. the use of proceeds;

     4. risk factors;

     5. capitalization table; and

     6. a description of management.

APPLICATION OF BROKER-DEALER REQUIREMENTS.

A person, who in exchange for a fixed fee, provides a list of investors who have stated in writing that they are accredited investors, should be exempt from the broker-dealer requirements.

The SEC should create a de minimis exception to the definition of a broker-dealer, along the lines as provided in some states, such as Illinois, to facilitate casual finder activity.

The SEC should create a limited broker-dealer licensing category for financial intermediaries who are not registered through a broker-dealer firm within the following parameters:

• NASD membership required;

• abbreviated application form;

• lower fees for application and renewal;

• appropriate testing requirements;

• applicants must certify that there are no "bad boy" disqualifications;

• annual renewal of registration;

• no custody of client funds or securities permitted;

• no minimum net capital requirements;

• appropriate bonding requirements;

• explicit recognition that these persons may accept transaction-based remuneration;

• no discretionary authority permitted;

• record-keeping appropriate to the business; and

• applicable sales practice rules.

The states should exempt from the definition of "agent" those sales representatives that do not receive compensation for selling securities. This amendment could be addressed in the Uniform Securities Act, so that officers, directors and employees of companies, so long as they do not receive sales compensation, would not be considered as "agents."

RULE 15c2-11.

The SEC should develop an exemption from Rule 15c2-11, if the issuer:

• has at least one class of securities registered under Section 12(g);

• is current in its filings; and

• is not subject to any disqualifying provisions under Rule 262 of Regulation A.

The SEC should propose to the NASD that it revise its Form 211 application process to permit issuers to file and participate in the defense of such applications.

Investment Company Act of 1940

RELIEF FROM 1940 ACT REGULATION.

The SEC should develop an Enterprise Zone Business Development Corporation concept susceptible to special treatment under the 1940 Act.

The SEC should create an exemption under the 1940 Act for Small Business Investment Companies licensed by the U. S. Small Business Administration.

The SEC and the SBA should conduct a joint study to determine if the 1940 Act regulation of small business investment companies licensed with and regulated by the SBA is necessary for the protection of investors.

The SEC should expand the definition of "qualified purchaser" under the 1940 Act to include "accredited investor" as defined in Rule 501(a) of Regulation D under the 1933 Act.

The purpose of this revision is to expand the pool of potential investors for private funds. The goal is to determine a way to encourage (or require) the top tier venture capital arrangement firms (those operating investment companies under Section 3(c)(1) or 3(c)(7) of the 1940 Act) to manage capital from retail non-accredited investors side-by-side on a mirror basis with existing pools of capital.

The SEC should provide regulatory relief from the 1940 Act by permitting an investment company, managed by a venture capital fund manager with more than $500 million from institutional clients, to be exempt from the 1940 Act and to report as an operating company under the 1934 Act.

Congress should provide tax incentives to fund managers to encourage them to manage both institutional capital and small investor capital at the same time and on the same terms.

Miscellaneous

The SEC Office of Small Business Policy should coordinate with the National Conference of Commissioners on Uniform State Laws in its efforts to rewrite the Uniform Securities Act.

The SEC should expand the focus of the Office of Small Business Policy to include representatives of the Divisions of Enforcement, Investment Management and Market Regulation, and/or create a task force to explore the possibility of creating a new Division of Small Business at the SEC.

III. Forum Participants

Martin Abo
Abo and Company
Plaza 1000 at Main Street, Suite 403
Vorhees, NJ 08043
856-489-5559

Tommy J. Bargsley
Bargsley & Associates, CPAs
11940 Jollyville Road, Suite 100-South
Austin, TX 78759
512-250-0027

Barry H. Barnett
Barnett, Allison & Fisher
P.O. Box 6584
Albuquerque, NM 87197-6584
505-898-6597

Jeffrey P. Berg
Luce, Forward, Hamilton & Scripps, LLC
11755 Wilshire Blvd., Suite 1600
Los Angeles, CA 90025
310-481-5200

Eric Blackledge
Oregon Small Business Council
P.O. Box 639
Corvallis, OR 97339-0639
541-753-4851

Julius Brecht
Wohlforth Vassar Johnson & Brecht, APC
900 W. 5th Avenue, Suite 600
Anchorage, AK 99501
907-276-6401

David Broadwin
Foley Hoag
One Post Office Square
Boston, MA 02109
617-832-1259

Stephen Brock
GoPublicToday.com
1701 Valmora Street
Las Vegas, NV 89102
702-248-4798

Paul Brownell
National Venture Capital Association
1655 N. Ft. Myer Drive Ste. 850
Arlington, VA 22209
703-524-2549

Stuart Buchalter
Buchalter, Nemer, Fields & Younger
601 South Figueroa Street, #2400
Los Angeles, CA 90017
213-891-0070

Kate Carr
The Adams National Bank
1627 K Street, NW
Washington, DC 20006
202-466-4090

Susan Ciallella
Cozen & O'Connor, Attorneys
1900 Market Street
Philadelphia, PA 19103-3508

Roger Davidson
Ballard Spahr Andrews & Ingersoll, LLP
1225 17th Street, Suite 2300
Denver, CO 80202-5596
303-299-7307

Leonard S. DeFranco
DeFranco & Associates
2311 W. 22nd Street, Ste. 217
Oak Brook, IL 60523
630-990-3900

Ralph V. De Martino
De Martino Finkelstein Rosen & Virga
1818 N Street, N.W., Suite 400
Washington, DC 20036
202-659-0494

David H. Drennen
Neuman & Drennen, LLC
4643 S. Ulster Street, Suite 800
Denver, CO 80237
303-221-4700

William D. Evers
Foley & Lardner
One Maritime Plaza, Sixth Floor
San Francisco, CA 94111
415-438-6453

Nancy Fallon-Houle
Nancy Fallon-Houle, P.C.
5449 Bending Oaks Place
Downers Grove, IL 60515-4456
630-963-0439

L.J. Fay
Alpha Management Group, Inc.
897 Cayo Grande
Thousand Oaks, CA 91320-1946
805-375-6096

Edward Fleischman
Linklaters & Alliance
1345 6th Avenue #1900
New York, NY 10105
212-424-9000

Peter H. Freidman
Peter H. Freidman CPA
37 Church Street, #7
Keene, NH 03431
603-358-6666

Robert W. Goehring
Robert W. Goehring & Associates
Suite 404, Grant Bldg.
310 Grant Street
Pittsburgh, PA 15219
412-281-6525

Webster L. Golden
Stevens & Brand, L.L.P.
P.O. Box 189
900 Massachusetts St., Ste. 500
Lawrence, KS 66044
785-843-0811

Thomas Gutherie
Southern NV CDC
2770 S. Maryland Parkway, #212
Las Vegas, NV 89109
702-732-3998

Earl Hall
Parkway Enterprises, Inc.
831 Parkway Avenue, B-9A
Trenton, NJ 08618
609-883-2840

William Hanner
Illinois Securities Department
520 S. Second Street, Suite 200
Springfield, IL 62701
217-785-4949

Scott W. Hatfield
S.W. Hatfield CPA
P.O. Box 820395
Dallas, TX 75382
214-342-9635

Richard S. Heller
Shustak Jalil & Heller
545 Madison Avenue
New York, NY 10022
212-688-5900

Mark T. Hiraide
Petillon & Hansen
21515 Hawthorne Blvd., Suite 1260
Torrance, CA 90503
310-543-0500

Victor Hollander
Good Swartz Brown & Berne, LLP
11755 Ventura Blvd., 17th Floor
Los Angeles, CA 90025
310-477-3722

Preston B. Kavanagh
Conning Capital Partners
CityPlace II
185 Asylum St.
Hartford, CT 06103
860-520-1289

Richard P. Keller
Keller & Lokken, P.A.
332 Minnesota St.
First National Bank Building Suite W-790
St. Paul, MN 55101
651-292-1001

James F. Koch
Carpenter, Mountjoy & Bressler, PSC
2300 Waterfront Plaza
Louisville, KY 40202
502-992-2700

Dixon Lee
Dixon V. Lee CPAs, LLC
26318 127th Ave
Kent, WA 98031
253-639-2406

Marc Lumer
Marc Lumer & Company
234 Front Street
Suite 300
San Mateo, CA 94111
415-362-7807

Joe Lunin
Pitney, Hardin, Kipp & Szuch
P.O. Box 1945
Morristown, NJ 07962
973-966-8200

E. Jeffrey Lyons
Gray Drake Partners
350 N. LaSalle Street
Suite 1400
Chicago, IL 60610
312-379-3150

Paul R. Madden
Gallagher & Kennedy, P.A.
2575 East Camelback Road, 10th Flr.
Phoenix, AZ 85016-9225
602-530-8488

John C. Malone
Malone & Bailey, PLLC
5444 Westheimer Road, #2080
Houston, TX 77056-5396
713-840-1210

John W. Martin
Law Office of John W. Martin
5777 West Century Blvd., Suite 1540
Los Angeles, CA 90045
310-342-6808

Michael G. McConnell
Fitts, Roberts & Co., P.C.
5718 Westheimer, Suite 800
Houston,TX 77057
713-260-5230

Larry Melby
Labor Locators
P.O. Box 1276
Carpinteria, CA 93014
805-684-5280

Theodore Miles
D.C. Commissioner of Securities
D.C. Department of Insurance &
Securities Regulation
810 First Street, NE, Suite 701
Washington, DC 20002
202-727-8000

Donovan J. Miller
Donovan J. Miller, CPA, PC
2086 Atlas Drive
Troy, MI 48083
248-740-8080

Girard P. Miller
Lindquist & Vennum P.L.L.P.
4200 IDS Center
80 South 8th Street
Minneapolis, MN 55402
612-371-2467

Marlee Mitchell
Waller Lansden Dortch & Davis, PLLC
2100 Nashville City Center
511 Union Street, Suite 2100
Nashville, TN 37219
615-252-2443

Martin Mushkin
Pomeranz, Gottlieb & Mushkin, LLC
205 Lexington Avenue, 16th Floor
New York, NY 10016
212-779-4233

Lynn Naefach
Pennsylvania Securities Commission
1010 N. Seventh Street
Harrisburg, PA 17102
717-787-5401

Jim Oakley
Oakley Company
P.O. Box 1947
Porterville, CA 93258
559-781-9262

Irwin Pomerantz
Irwin Pomerantz and Associates
50 North La Cienega Blvd., Ste. 203
Beverly Hills, CA 90211
310-652-9232

Mariana Prieto
Foley Hoag
1747 Pennsylvania Avenue, NW
Suite 1200
Washington, DC 20006
202-261-7313

Richard H. Rowe
Proskauer Rose LLP
1233 20th Street, NW., #800
Washington, DC 20036
202-416-6820

John R. Sarkisian
PSA Security Systems
1570 W. Mission Boulevard
Pomona, CA 91766
909-629-5455

Randall Schumann
Wisconsin Division of Securities
Department of Financial Institutions
345 West Washington Avenue, 4th Flr.
Madison, WI 53703
608-266-3414

Bruce W. Shewmaker
Managing Director
CrossBow Ventures
12 Briarwood Drive
Short Hills, NJ 07078
973-564-7695

Wayne E. Silverman
Manning Silverman & Co.
175 Olde Half Day Rd. #290
Lincolnshire, IL 60069
847-459-8850

Mary M. Sjoquist
Patton & Boggs LLP
2550 M Street, N.W.
Washington, DC 20037
202-457-6404

Brad M. Smith
WBS&A, Ltd.
3 Glenway Dr.
Austin, TX 78738
512-261-5200

James Snell
Illinois Securities Department
520 S. 2nd St., Ste 200
Springfield, IL 62701
217-524-9636

Ernest M. Stern
Piper, Marbury, Rudnick & Wofle LLP
1200 19th Street, N.W.
Washington, DC 20036
202-861-6672

Tom Stewart-Gordon
Stewart-Gordon Associates
4131 Fawn Hollow Drive
Dallas, TX 75244
972-620-2489

Michael Trokey
Michael Trokey & Company, P.C.
Certified Public Accountants
10411 Clayton Road
St. Louis, MO 63131
314-432-0996

Garrett Vogel
Garrett Vogel, CPA
3767 Forest Lane, Suite 124, PMB-415
Dallas, TX 75244
214-350-6422

Robert E. Ward
Robert E. Ward & Associates, P.C.
7700 Old Georgetown Road, Suite 800
Bethesda, MD 20814
301-986-2200

Dan Weston
League of American Investors
2804 Camino Dos Rios #205
Newbury Park, CA 91320
805-375-1400

http://www.sec.gov/info/smallbus/gbfor20.htm