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U.S. Securities and Exchange Commission

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

May 2001

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.


In September 2000, the SEC Government-Business Forum on Small Business Capital Formation met in San Antonio, Texas. The recommendations from the 19th Annual Forum follow. We believe that many worthwhile proposals are evidenced. Participants gave careful consideration to a wide range of issues. 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
19th Annual SEC Government-Business Forum on
Small Business Capital Formation

Table of Contents

Executive Committee


  1. Introduction

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

    1. Taxation

    2. Securities Regulation

    3. Other

  3. Forum Participants

Executive Committee

Chairman: Richard K. Wulff, Chief, Office of Small Business
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
Edgar M. Norris Company, 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

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

Mark Keam, Assistant Chief Counsel for Advocacy
U.S. Small Business Administration

Charles Ludlam, Executive Director
Biotechnology Industry Organization

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)

Allen Neece
Neece, Cator & Associates, Inc.

Karen O'Brien, General Counsel
North American Securities Administrators Association, Inc.

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


Opening Panel - September 11, 2000

"The Quest for Early Stage Capital by a `Clicks' Company & a `Bricks and Mortar' Company"

Co-Moderators: Jerry Feigen
Jerry Feigen & Associates, Inc.
2000 Century Plaza, Suite 308
Columbia, MD 21044

Philip Feigen
PattonBoggs, LLP
2550 M Street, N.W.
Washington, DC 20036

"Clicks" Company: Karl Ware
Founder and EVP of Operations
BioNetrix Systems Corporation
1953 Gallows Road Suite 500
Vienna, VA 22182
"Bricks and Mortar" Company: Robert Cooper
Chief Executive Officer
All Components, Inc.
13717 Beta Road
Dallas, TX 75244

"Clicks" and "Bricks" Panel - September 11, 2000

"Finding Early Stage Capital for a `Clicks' and `Bricks' Company and Consideration of Legal, Tax, Accounting and Other Issues"

Co-Moderators: Jerry Feigen
Jerry Feigen & Associates, Inc.
2000 Century Plaza, Suite 308
Columbia, MD 21044

Philip Feigen
PattonBoggs LLP
2550 M Street, N.W.
Washington, DC 20036

Jeff Blanchard
Managing Partner
First Capital Group of Texas II, LP
750 East Mulberry, Suite 350
San Antonio, TX 78212

Robert Cooper
Chief Executive Officer
All Components, Inc.
13717 Beta Road
Dallas, TX 75244

Daryl Jackson
Deloitte & Touche LLP
701 Poydras Street Suite 3700
New Orleans, LA 70139 - 3700

Bob Kay
President - Austin Region
Texas Capital Bank
600 Congress Avenue Suite 250
Austin, TX 78701

Marc Morgenstern
Kahn, Kleinman, Yanowitz & Arnson Co., L.P.A.
Suite 2600, Tower at Erieview
1301 East 9th Street
Cleveland, OH 44114

Lynn Naefach
Pennsylvania Securities Commission
Eastgate Office Building
1010 North 7th Street - 2nd Floor
Harrisburg, PA 17102-1410

Till Philips
National Rural Advocate
U.S. Small Business Administration
4300 Amon Carter Blvd. Suite 108
Fort Worth, TX 76155

Karl Ware
Founder and EVP of Operations
BioNetrix Systems Corporation
1953 Gallows Road Suite 500
Vienna, VA 22182

Morning Panel - September 12, 2000

"The Quest for Later Stage Financing by a `Clicks' Company"

Co-Moderators: Jerry Feigen
Jerry Feigen & Associates, Inc.
2000 Century Plaza, Suite 308
Columbia, MD 21044

Philip Feigen
PattonBoggs LLP
2550 M Street, N.W.
Washington, DC 20036

"Clicks" Company: Andrew Rosen
General Counsel and
Acting Chief Financial Officer
Blackboard, Inc.
1899 L Street N.W. 5th Floor
Washington, DC 20036

"Clicks" and "Bricks" Panel - September 12, 2000

"Later Stage Financing for a `Clicks' and `Bricks' Company & Consideration of Legal, Accounting and Tax Issues"

Co-Moderators: Jerry Feigen
Jerry Feigen & Associates, Inc.
2000 Century Plaza, Suite 308
Columbia, MD 21044

Philip Feigen
PattonBoggs LLP
2550 M Street, N.W.
Washington, DC 20036

Jerry Arnold
Professor of Accounting
Leventhal School of Accounting
University of Southern California
Los Angeles, CA

Charles L. Bennett
Vice-President Syndicate
Edgar M. Norris & Co., Inc.
15 South Main Street, Suite 810
Greenville, SC 29601

Denise Crawford
Securities Commissioner
Texas State Securities Board
200 East 10th Street, 5th Floor
Austin, TX 78701

Joseph Galligan
Director of Finance
Forrest Binkley & Brown
840 Newport Center Drive Suite 480
Newport Beach, CA 92660-6321

Marc Morgenstern
Kahn, Kleinman, Yanowitz & Arnson Co., L.P.A.
Suite 2600, Tower at Erieview
Cleveland, OH 44114

Andrew Rosen
General Counsel and Acting Chief Financial Officer
Blackboard, Inc.
1899 L Street N.W. 5th Floor
Washington, DC 20036

Tim Smith
Vice President and Secretary/Treasurer
Capital Southwest Corporation
12900 Preston Road Suite 700
Dallas, TX 75230


Moderator: Daryl Jackson
Deloitte Touche, LLP
Deloitte & Touche LLP
701 Poydras Street Suite 3700
New Orleans, LA 70139
Along with: Russ Orban
Assistant Chief Counsel for Tax Policy
Office of Advocacy
U.S. Small Business Administration
409 Third Street, S.W.
Washington, DC 20416

2000 Forum Staff

Barbara C. Jacobs, Staff Director
Regina Baker
James Budge
Janice McGuirk
Twanna Young


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 19 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; and in recent years, the Forum has typically included this feature. The 19th Annual Forum was held in San Antonio, Texas on September 11 and 12, 2000. 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 topic areas of taxation and capital raising issues and dichotomies encountered by traditional companies ("bricks") and the types of companies illustrative of the "new economy" ("clicks") were selected as the focus of this year's Forum. The Executive Committee had determined that the format of the morning sessions would present several panel discussions. As in prior years, time would be devoted to discussion in small interactive break-out groups in order to permit Forum participants sufficient opportunity to develop thoughtful recommendations.

Welcoming remarks on behalf of the Executive Committee at this year's Forum were offered by Richard K. Wulff, Chief of the Office of Small Business of the U.S. Securities and Exchange Commission. Jere Glover, Chief Counsel for Advocacy of the U.S. Small Business Administration, presented his views regarding the outlook for small business.

An opening panel discussion entitled, "The Quest for Early Stage Capital by a `Clicks' Company & a `Bricks and Mortar' Company," was offered, followed by a discussion of legal, tax, accounting and other issues. Jeff Krisel, Director of Operations for Dell Ventures gave the luncheon address. Break-out sessions among the Forum participants were conducted throughout the afternoon.

Patrick Von Bargen, Executive Director of the National Commission on Entrepreneurship, opened the second day's session with remarks regarding the trends and transformations driving the new economy. The panel following was entitled "The Quest for Later Stage Financing by a `Clicks' Company." Then a discussion of the legal, accounting and tax issues was presented by the panelists. Peter Freudenthal, Chairman, President, Chief Executive Office and Co-founder of meVC, gave the luncheon address. Break-out sessions among the Forum participants were conducted in the afternoon. 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


Changes to Qualified Small Business Stock (changes refer to: Internal Revenue Code Sections 1202 and 1045)

  • 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 shall be available for investors in a "Subchapter S Corporation" and other forms of legal entities, such as Limited Liability Corporations (LLCs) and Limited Liability Partnerships (LLPs) where the subject entities meet all other requirements of section 1202.

  • The Alternative Minimum Tax should not apply to investors for the purpose of computing the amount of tax on a gain under section 1202. Under the current Alternative Minimum Tax structure 99% of the tax incentives created by section 1202 are taken away by Alternative Minimum Tax.

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

  • 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.

Electronic Commerce

Electronic Commerce has become a major factor that must be addressed by small businesses in their pursuit of capitalization. The lines of taxing authority giving rights to one government jurisdiction to tax an entity located in another governmental jurisdiction (known as nexus and/or attributable nexus) have become blurred with the explosive growth of electronic commerce that instantly crosses all boundaries. Without uniform, international, national and state guidelines that lay out how electronic commerce will be taxed fairly, a small business will be at a continuing disadvantage in its ability to allocate its resources to meet future taxation and compliance expenses.

We recommend that the federal government and the state governments adopt the position that until concrete, dependable and uniform guidelines are created, all taxes generated by inter-jurisdictional commerce that have or may accrue be abated. Where possible we request that the US government exert influence to have international government tax authorities follow the above recommendation.

IRS Audit - Statute of Limitations Reduced

We recommend that the statute of limitation for IRS to select returns for audit should be reduced from 3 to 2 years. Shortening this time period will reduce the exorbitant administrative costs connected to maintaining the records, preparing and planning for audit by promoting a quick resolution of disputes. Assurance of rapid review and determination will help remove uncertainty and guesswork about the future availability of capital and other resources within the company that can be devoted to business pursuits.

OMB/IRS Studies of Tax Complexity

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. We endorse the most recent IRS/OMB effort ("Annual Report from the Commissioner of the Internal Revenue Service on Tax Law Complexity") and its findings. 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 OMB /IRS 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. We agree with the proposal of Senator Moynihan that this process be the starting point for the complete overhaul of the Internal Revenue Code and Regulations. He has suggested that a bipartisan Blue Ribbon Panel would be needed to review the problems and recommend a new structure and ensure that the process has a solid foundation to move through the political process.

Tax Recommendations Currently Under Consideration

We note that on the date of the forum, September 2000, while we confer about incentives and methods to raise and preserve capital for small businesses, Congress and the President are negotiating a tax package that includes the following items that have our strong support:

  • Work Opportunity Tax Credit (WOTC) - Compromise to extend the WOTC through 2004 to assist businesses in hiring disadvantaged workers.

  • Section 179 Increase - Allow small business to expense qualifying property costs up to $35,000.

  • Meals and Entertainment Expenses - Immediately repeal the limitation of businesses in deducting business meals and entertainment expenses incurred in the ordinary course of business; limit the required/IRC Section 274 bookkeeping and record keeping requirements that specifically are required for the deductibility of business related meals, entertainment, and auto expenses.

  • FUTA Surtax Repeal - Repeal outdated .2% FUTA surtax.

  • Health Insurance Deductibility 100% for Self-employed - Make the health insurance immediately deductible for the self employed and treat it as a business related deduction under section 162.

  • Installment Sales Restored - The 1999 Act prohibiting installment sales treatment for accrual basis taxpayers has severely impacted capital transactions for small businesses. This provision should be repealed, and installment sales treatment should be allowed for the sale of assets that are not normally offered for sale in the normal course of the taxpayer's business but only for businesses with gross revenues gross revenues less than $100 million. (Note: a provision similar to this installment sales provision was passed during the 106th Congress.)

  • Reforestation - Provide tax relief for reforestation expenses to create and maintain jobs. The House Bill increases maximum reforestation expenses qualifying for amortization and credit for 10k to 25k; removes the cap on amortization cost in 2001 and 2003.

Most of these items (except the last two) have been strongly recommended in the past by this annual forum and it is our opinion that these proposals would contribute significantly to small business' ability to preserve and build capital. They continue to have our strong support. We urge the President and the Congress to include these important, small business items in any tax bill that is passed and signed into law.

Incentive Stock Options (ISOs) and Employee Stock Purchase PlaNS (ESPP)

To help small businesses utilize ISOs that can help them attract qualified personnel and retain capital, the IRS has taken the position that an unqualified disposition of an ISO is not subject to payroll withholding taxes, thereby relieving small business of a significant administrative burden especially in those cases where an employee may have left the company.

The IRS has taken the contrary position that a disqualifying disposition of an ESPP is subject to payroll withholding taxes thereby imposing an administrative burden. This burden can be very drastic especially in cases where the employee may have already left the company. ISOs and ESPPs are based on the same Internal Revenue Code section and essentially are identical. Yet, the IRS has taken a different position in their treatment.

We recommend that the IRS take a consistent position in regard to ISOs and ESPPs and that they adopt the current treatment of ISOs.

Small Businesss Participating Debentures

Small businesses often need creative and innovative financing instruments to attract capital. Congress should authorize the use of Small Business Participating Debentures (SBPD), which would allow lenders to participate in a small business' success. Any SBPD would be a subordinated debt instrument that would pay a set rate of interest plus a negotiated percentage of profits. The equity issuer would be able to deduct as interest all payments to the lender and the lender would treat payments as ordinary income. The recipient would treat any repurchase in excess of par or issue price as capital gain income. These instruments should be made available for use by all qualified small businesses with gross assets less than $100 million and should not disqualify an S Corporation status as a second class of stock.

Section 83b Elections and Recognition

Small businesses use non-qualifying stock options as well as qualifying stock options to attract "human technology". A "Section 83b" election is an active component in establishing a competitive compensation packaged in the tight human technology marketplace. (Section 83b of the Internal Revenue Code allows an employee to elect to take into wage income the fair market value of the option as of the date of issuance. Future appreciation beyond the issuance value is capital gain to the employee.) In cases where a holder of a non-qualifying stock option makes a timely 83b election, that holder includes value in his appropriate return value of the option as compensation and pays the appropriate taxes. The amount of the compensation declared is the basis in the stock when granted.

The elector runs the risk that any loss that results from an 83b election is characterized as a capital loss. We recommend that any loss that results from an 83b election be characterized as an ordinary loss that can be utilized without limitation against any other ordinary income.

We recommend that a section 83b election be deemed to have been made at the time of the granting of the option. Further, that the recipient of the option then has until the end of the quarter after the granting of the option to revoke the deemed election.

Alternative Minimum Tax (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 abundant capital sources to encourage small business growth, this Forum urges Congress to exempt all components of personal AMT, which is generated by "small business". For the purpose of this exemption, a "small business" shall be defined as one that meets the capitalization requirement as defined by Congress in Internal Revenue Code section 1202 dealing with special Small Business Stock. (e.g., capitalization of less than $100 million).

Net Operating Loss - The Application of Internal Revenue Code Section 382

So as not to artificially impede the acquisition, merger or other consolidation of loss companies, Congress shall repeal section 382 as it applies to companies that have less than $100 million in gross assets and would remain a going concern.

Treasury Compliance With the Regulatory Flexibility Act

The Treasury Department should be required to perform an initial regulatory flexibility analysis on any proposed regulation or temporary regulation regardless of the type of regulation when the proposal would have a significant impact or impose a collection of information requirement on a substantial number of small businesses.

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 is held less than 5 years.

The Forum recommends that the Internal Revenue Service develop targeted tax credits for net operating losses.

Estate Tax

Estate taxes negatively impact small businesses in capital formation and business continuity. In view of the fact that complete repeal has not received the support necessary to become law, the Forum recommends that Congress raise the unified credit to $10 million (In the alternative, the $10 million could apply to family business assets.)

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.

Federal Advisory Boards and Commissions - Small Business Representation

The Forum requests that any federal advisory commission include at least one representative from the small business community. The concerns and issues that relate to small businesses must be reviewed prior to a policy paper being issued. This would create parity among businesses and other entities since many more powerful groups such as large businesses, organized labor, tax exempt organizations, academic institutions have enjoyed a strong presence on advisory commissions for years. Representation on these boards and commissions would at least help make them aware that frequently federal policy decisions have significant cost implications for small businesses or can impair their competitiveness and their ability to raise capital.

Securities Regulation

In order to alleviate some of the problems encountered by multi-jurisdictional companies, the SEC should review Section 3(a)(11) and Rule 147 provisions with the view to making the intra-state exemptions less restrictive and more useful or provide for an alternative exemption. For example, issuers should be allowed to sell at least 75% of their offering to investors within the state who provide at least 75% of the funds; and reduce or eliminate the "in state" revenue requirements.

In addition to the current exemption provided under Rule 506, the SEC should allow general solicitation under Rule 506 so long as sales are made to accredited investors only. The SEC should adopt a uniform form for use by issuers to determine accredited investor status, which shall act as a "safe harbor."

SEC should amend the dollar amount limitations in Regulation D by raising them based on consumer price index (CPI) level adjustments.

The SEC should shorten the length of time that must elapse between private offerings (currently six months) to avoid "integration" of the offerings.

The SEC should expand Rule 701 to allow sales under that exemption to persons other than de facto employees or professionals to allow the issuer to compensate more individuals that supply services to the issuer.

To facilitate capital formation by bringing together investors and small business owners, the SEC should mandate that the NASD create a special category of licensing to be known as finders-broker-dealers to be licensed through an appropriate examination process.

The Forum recognizes the role that small business securities issuers play in providing access to capital for a segment of the small business community. However, there is general dissatisfaction with the Rule 15c2-11 regulations, which have stymied the flow of capital to these issuers. So in order to continue the flow of capital to micro/mini cap issuers, we would recommend creating a self-regulatory organization that would serve as a clearinghouse for disclosure by these organizations thus satisfying the reporting requirements of 15c2-11.

To improve shareholder confidence in small business issuers, a SRO-type organization should be formed for the purpose of standardizing annual disclosure for these companies, serving as a clearinghouse for such disclosure, the purpose of which is to satisfy the requirements of 15c2-11. This organization would also coordinate the NASD's Form 211 listing requirements for market-maker members with the new issuer SRO disclosure standards and expedite issuers' ability to create rule 15c2-11 clearinghouse standard documents that would be more acceptable on first filing with the NASD by the member broker-dealer. This entity would investigate the feasibility of providing funded insurance to protect investors from issuer-originated fraud.

The Forum recommends that a "de minimis" broker/dealer exemption be provided for finders who occasionally arrange for investors of securities as an adjunct to other securities business.

The SEC should change Section 2(a)51A of the Investment Company Act of 1940 to read, "who is an Accredited Investor" to make it easier to form pools of accredited investors.

The Forum recommends that Congress modernize the Business Development Company statute and expand the definition of an eligible portfolio company to include a greater number of publicly held companies, provide greater flexibility on BDC staff compensation, and streamline the exemptive order application process.

The Forum recommends that Congress assess the impact of the Gramm Leach Bliley (GLB) Financial Modernization Act on the formation of SBIC's and the financing of small business, in general. Questions have been raised about the impact of the Federal Reserve Board's GLB merchant banking capital requirements on venture capital and the impact of raising SBIC capital requirements from 8% to 50%.

The Forum also recommends that the Congress direct that a study be prepared examining the impact of the GLB Financial Modernization Act on the formation of SBIC's by banks.

States other than California should adopt legislation to authorize new "Capital Access Companies" which are private equity funds run by professional investment advisors and exempt under Section 6(a)(5) of the 1940 Act.

SEC should adopt an exemption under the 1933 Act to allow general solicitation to accredited investors to invest in new "Capital Access Companies" which will not be regulated as investment companies under Section 6(a)(5) of the 1940 Act.

Congress and state legislatures should provide a statutory limitation on liability incurred by underwriters and broker-dealers who sell small offerings of $10,000,000 or less.

The SEC, SBA and NASAA should undertake a joint study to consider ways in which the federal securities laws and regulations can be amended to facilitate small business capital formation.

Congress shall appropriate funds to permit the SEC to initiate a nationwide education and training process for investors and small business issuers.

The SEC shall create a task force with representatives from the SBA and NASAA to review the capital raising process under the 1933 Act for small business and to report on the progress of implementing former recommendations of this body in connection with that review.

The SEC should develop and maintain an e-mail distribution of Forum participants and e-mail the 2000 Forum proceedings to participants.

By June of the following year, the SEC should report to Forum participants the status of any accomplishments and/or reasons for not adopting the Forum's recommendations. The SEC should also publish a public release listing all of the recommendations that were developed at the Forum.

Representatives of the Forum should make in-person presentations to decision-makers at the SEC to emphasize the importance of the recommendations and to respond to any objections raised by the SEC.

SEC and state securities regulators should expend more resources on investor and entrepreneurial education.

Modify the anti-fraud regulations relating to solicitations in connection with primary offerings of start-up companies to permit broad disclosure of start-up activities.

Eliminate the anti-fraud regulations that govern solicitations in connection with primary offerings of private placements if all of the purchasers are accredited investors.

Clarify the liability of a company under the "entanglement theory" when it has been "involved in the preparation" of third-party information which can be accessed by shareholders via hyperlink from the issuer's website.

The SEC and the SBA should develop a program designed to promote entrepreneurial and legal education of the capital formation process and work through small business development companies to promote and deliver the training over the Internet.


Banking Regulations

Recommend that the Office of the Comptroller of the Currency establish standards for the evaluation of loans to small businesses.

Valuation Disclosure

The SEC should consider requiring issuers of equity securities to disclose their valuation in the prospectus, given the terms set forth in an offering. Such a disclosure could help attract investors to small companies and also provide an important investor protection, in the same manner that any fundamental disclosure can.

Valuation is a measure routinely used by sophisticated investors to evaluate an investment opportunity. It is calculated using the terms of an offering (shares outstanding multiplied by offering price). As such, it is objectively determined, just like earnings per share or book value. Thus, valuation is not a subjective measure of worth nor is it an appraisal. In public markets, a company's valuation is often referred to as its capitalization.

Valuation disclosure could encourage investors to invest in small companies because they generally have relatively low valuations. Small issuers may also have more success in raising capital if investors have more confidence evaluating offering terms, which can be confusing.

In theory, this proposal presumes investors will favor small companies in the same manner that consumers prefer food from companies who make more nutritious products. The enabler is information: nutritional disclosure for food products and valuation disclosure for issuers.

There are precedents to show that better consumer information creates an environment that creates opportunities for less established providers. They include: loans (disclosure of effective annual interest rate), autos (mileage standards) and appliances (energy efficiency). Investors as a whole can be expected to discriminate in favor of companies with low valuations because it is precisely what sophisticated, that is, valuation-aware, investors do.

It is recommended, therefore, that the SEC initiate broader discussion on the:

  • general proposition of valuation disclosure

  • definition of valuation, and

  • valuation reporting formats.

III. Forum Participants

Clyde Bailey
Clyde Bailey PC
10924 Vance Jackson, #404
San Antonio, TX 78230

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

R. Cash Barlow
Law Offices of R. Cash Barlow
3948 S. 3rd. St. PMB 316
Jacksonville Beach, FL 32250

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

Steven Becerra
South Valley SBDC
700 4th Street S.W., Suite A
Albuquerque, NM 87102

Seth Ben-Ezra
Goldstein & Ben-Ezra, LLP
500 North Broadway, Suite 243
Jericho, NY 11753

Tom Bellante
Pender Newkirk & Company, CPA's
100 S. Ashley, Suite 1650
Tampa, FL 33618

Michael Bennett
Hunton & Williams
1751 Pinnacle Drive
McLean, VA 22102

Barbara D. Boyan
The University of Texas Health
Science Center
7703 Floyd Curl Drive, MS-7823
San Antonio, TX 78229-3900

John D. Braden
Braden, Bennink, Goldstein, Gazaway
& Company, PLLC
12941 Interstate 45 North, Suite 422
Houston, TX 77060

Steve Bradford
University of Nebraska College of Law
Ross McCollum Hall, Room 214
P.O. Box 830902
Lincoln, NE 68583-0902

Dennis R. Cassell
Haynes & Boone
600 Congress Avenue, Suite 1600
Austin, TX 78701

Marilyn Chastain
Idaho Dept. of Finance
700 W. State St., 2nd Floor
Boise, ID 83720-0031

Priscilla Chesler, CPA
Priscilla A. Chesler, CPA, PC
2120 N. 124th Drive
Avondale, AZ 85323

Sam Cordovano
Cordovano and Harvey, P.C.
201 Steele Street, Suite 300
Denver, CO 80206

Sharolyn Craft
University of Nevada
Las Vegas Nevada Small Business
Development Center
3720 Howard Hughes Parkway #130
Las Vegas, NV 89101

Rolando Cuadrado
Sticks & Stones
7117 Blanco Road
San Antonio, TX 78216

Mark S. Deion
Deion Associates & Strategies, Inc.
106 Tyler Street
Warwick, RI 02888-2704

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

John A. Demetrius
Demetrius & Company, L.L.C.
145 Route 46 West
Wayne Interchange Plaza I
Wayne, NJ 07470

Gerard S. DiFiore
Reed Smith Shaw & McClay LLP
One Riverfront Plaza
Newark, NJ 07102

Stephen H. Durland, CPA
Durland & Company, CPAs, P.A.
340 Royal Palm Way 3rd Floor
Palm Beach, FL 33480

James B. Evans
University of Houston
Small Business Development Center
2302 Fannin, #200
Houston, TX 77002

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

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

Mikiel R. Featherston
The Featherston Group
P.O. Box 91117
Austin, TX 78709-1117

Peter H. Friedman
366 Captain Clark
Wilton, NH 03086

Joseph Galligan
Forrest Binkley & Brown
840 Newport Center Drive, Suite 480
Newport Beach, CA 92660-6321

Dane George
Haynes and Boone LLP
600 Congress Avenue, Suite 1600
Austin, TX 78701

Joe H. Glover
The Strateia Group
2925 LBJ Frwy. Ste. 188
Dallas, TX 75234

Larry Goldsmith
Kupferberg, Goldberg & Neimark, LLC
225 N. Michigan Avenue, 11th Floor
Chicago, IL 60601

Russell Grimes
BioNetrix Systems Corporation
1953 Gallows Road, Suite 500
Vienna, VA 22192

William F. Habermann
Virginia State Corporation Commission
1300 East Main St. 9th Floor
Richmond, VA 23219

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

Scott W. Hatfield
SW Hatfield CPA
P.O. Box 820395
Dallas, TX 75382

Michael C. Hill
Clearcast, Inc.
1914 24th Avenue
Gulfport, MS 39501

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

Victor Hollander
Hollander, Lumer & Co., LLP
15260 Ventura Blvd., Suite 940
Sherman Oaks, CA 91403

Rob H. Holt
Rob H. Holt, Attorney at Law
1716 Briarcest Drive, Suite 625
Bryan, TX 77802

Judith Ingalls
University of Texas at San Antonio
SBDC Technology Center
1222 N. Main , Ste. 450
San Antonio, TX 78212

Preston B. Kavanagh
Conning Capital Partners
185 Asylum St.
Hartford, CT 06103

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

Larry Leathers
Delivery & Communications, Inc.
4310 Tejasco
San Antonio, TX 78218

Dixon Lee
Dickson V. Lee CPAs, LLC
26318 127th Ave
Kent, WA 98031

Wilhelm Liebmann
Akin, Gump, Strauss,
Hauer & Feld, LLP
300 Convent Street, Suite 1500
San Antonio, TX 78205

Marc Lumer
1670 S. Amphett Blvd., Ste. 306
San Mateo, CA 94402

Connie L. Luthy
The Luthy Group-Drug Research
& Development Consultants
P.O. Box 140644
Dallas, TX 75214

Paul R. Madden
Gallagher & Kennedy, P.A.
2575 East Camelback Road
Phoenix, AZ 85016-9225

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

Dennis A. Manshack
Louisiana Economic Development Corporation
P.O. Box 44153
Baton Rouge, LA 70804-4153

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

Donald McGhie
McGhie Consulting
100 California Avenue, Suite One
Reno, NV 89509

Larry Melby
Labor Locators
P.O. Box 1276
Carpinteria, CA 93014

Donovan J. Miller
Donovan J. Miller, CPA, PC
2086 Atlas Drive
Troy, MI 48083

Girard P. Miller
Lindquist & Vennum P.L.L.P.
4200 IDS Center
Minneapolis, MN 55402

Dan Mitchell
Executive Director - Ace-Net
University of Southern Connecticut
501 Crescent Street
New Haven, CT 06515

Dave M. Muchnikoff
Silver, Freedman & Taff, LLP
1100 New York Avenue, N.W.
7th Floor-East
Washington, DC 20005

Martin Mushkin
Pomeranz, Gottlieb & Mushkin, LLC
205 Lexington Avenue
New York, NY 10016

Lynn Naefach
Pennsylvania Securities Commission
1010 N. Seventh Street
Harrisburg, PA 17102

Irwin Pomerantz
Irwin Pomerantz and Associates
7700 Sunset Blvd. Suite 205
Los Angeles, CA 90046

John Rice
Technology Commercialization International Inc.
1650 University Blvd., N.E. Suite 200
Albuquerque, NM 87102

Fred Rogers
Select University Technologies, Inc.
3151 Airway Avenue, K-240
Costa Mesa, CA 92626

Leo Rosas
University of Texas at San Antonio
SBDC Technology Center
1222 N. Main, Ste. 450
San Antonio, TX 78212

L. Hunter Rost
Waller Lansden Dortch & Davis, PLLC
511 Union Street, Suite 2100
P.O. Box 198966
Nashville, TN 37219-8966

Stephen E. Rounds
The Law Firm of Stephen E. Rounds
4635 East 18th Avenue
Denver, CO 80220

Lisa Roys
WI Department of Financial Institutions
345 W. Washington Avenue
P.O. Box 8861
Madison, WI 53708-8861

John R. Sarkisian
PSA Security Systems
1570 W. Mission Boulevard
Pomona, CA 91766

Bruce W. Shewmaker
CrossBow Ventures
12 Briarwood Drive
Short Hills, NJ 07078

Karl M. Sjogren
Fairshare, Inc.
1072 Sundance Drive
Fremont, CA 94539

Dean Sperantsas
Florida Atlantic University
Small Business Development Center
777 Glades Road, P.O. Box 3091
Boca Raton, FL 33431

Tom Stewart-Gordon
Stewart-Gordon Associates
4131 Fawn Hollow
Dallas, TX 75244

Michael P. Thompson
Thompson Dugan
1580 McLaughlin Run Road
Pittsburgh, PA 15241

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

Patrick Valenzuela
California Office of Small Business
801 K Street, Suite 1700
Sacramento, CA 95814

Syver Vinje
North Dakota Securities Commissioner
State Capitol - 5th Floor
600 E. Boulevard Ave.
Bismarck, ND 58505

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

Dan Weaver
Weaver & Martin LLC
801 W. 47th Ste. 208
Kansas City, MO 64112

Dan Weston
League of American Investors
2804 Camino Dos Rios #205
Thousand Oaks, CA 91320

Neil Whittey
Las International
3811 Lockport St.
Bismark, ND 58501

Franklin L. Widmann
New Jersey Bureau of Securities
P.O. Box 47029, 153 Halsey St.,
6th Floor
Newark, NJ 07101

Grafton "Cap" H. Willey, IV
Rooney, Plotkin & Willey, LLP
10 Dorrance Street
Providence, RI 02903

Mike Williams
Louisiana Economic Development Corp.
P.O. Box 44153 - 331 Florida Street
Baton Rouge, LA 70904

John G. Wilson
Fairshare, Inc.
6718 Callaghan Road, Suite 208
San Antonio, TX 78229

Morrison Woods
UTSA Small Business Development Center
1222 N. Main, Suite 450
San Antonio, TX 78212

Mike Young
University of Houston
Small Business Development Center
2302 Fannin, Suite 200
Houston, TX 77002


Modified: 06/08/2001