If you cannot view this message, you can read the newsletter on the Middle Market and Small Business Committee website.
Newsletter of the ABA Business Law Section Middle Market and Small Business Committee
  Business Visions
Join the Committee Online

Message from the Chair

Committee
  Committee Mission Statement
  Meeting News
  Meeting Schedule
  Contact Us

Articles
  Renting the Space that's Right for Your Business: Things for Tenants to Consider in a Commercial Lease
  Captive Insurance Companies for Small and Mid-Sized Businesses

Newsletter Editor

    David Wicker
    Law Office of J. David Wicker, PLLC

    dwicker@wickerpllc.com

  Message from the Chair
  Gregory Yadley, Committee Chair

Greetings from Sunny Florida!

Spring is already here in Tampa and, hopefully, not far away for many of you. If you have not yet registered for the ABA Spring Meeting in Washington, DC, now is the time to do so: cherry blossoms, CLE programs, museums, informative meetings and the excitement of being in the Nation's Capital.

For the most up-to-date schedule of CLE programs, see here, and for the Master Chronological Schedule, see here.

You certainly don't want to miss our Committee Dinner on Thursday, April 4, which we will share with the Private Equity & Venture Capital Committee.

With your participation, the Middle Market & Small Business Committee will continue to be "the best damn committee in the ABA." Please attend our Committee and subcommittee meetings and CLE programs. You all have much to contribute, and I know you also will learn a great deal.

Until we meet in Washington, all the best!

Gregory C. Yadley, Chair
Middle Market and Small Business Committee


back to top ↑

 
  Committee
 
Committee Mission Statement

The mission of the Middle Market and Small Business Committee is to serve corporate and transactional lawyers who counsel small and mid-sized enterprises controlled by families, entrepreneurs, PEGs or VC firms, and smaller publicly-held companies.
  1. entity organization and owner agreements;

  2. capital formation, financing and strategic partnering;

  3. employment and compensation matters;

  4. intellectual property protection;

  5. corporate governance;

  6. securities law compliance;

  7. international expansion and cross-border transactions; and

  8. business combinations, restructurings, and breakups.

Our Subcommittees . . . . .

The Committee also maintains four substantive subcommittees focusing on Closely Held Business Entities, Emerging Companies, International Transactions and Securities Regulation.

The Committee has long been an advocate before the Securities and Exchange Commission, the Internal Revenue Service and other regulatory agencies of reforms to address the special problems in capital formation confronted by small businesses, including smaller public companies. The annual Government-Business Forum on Small Business Capital Formation, sponsored by the SEC, is one result of past Committee initiatives and was a leading force in the SEC's adoption of Regulation D. A present Committee initiative, through the Private Placement Broker Dealer Task Force, advocates a simplified registration system for finders of financing for early stage companies.



Committee Meeting News

Fall Meeting, Business Law Section, Washington, D.C., November 16-17, 2012

During the 2012 ABA Annual Meeting held in Chicago, IL, the Committee sponsored the CLE program titled "Implementing the JOBS Act - What We Know, What We Don't and When We Will," which featured the Director of the SEC's Division of Corporation Finance, Meredith Cross and members of her senior staff. Also participating were Stanley Keller, David Lynn, Michael Hermsen and Bonnie Roe. The program reviewed the SEC's interpretations that relate to the integration of private and public offerings and the challenges they impose for the capital formation process. For those unable to attend, the CLE materials are available on the ABA website (in pdf form with mp3 audio of the presentation).

Several Committee members also participated in the SEC Government-Business Forum on Small Business Capital Formation on Thursday, November 15 at the SEC's headquarters. Committee President Gregory C. Yadley co-moderated the morning panel which covered implementation of the JOBS Act. The forum provided an excellent chance for our Committee members to provide meaningful input to the Commission as it promulgates rules to implement the JOBS Act. The 2012 Forum materials are available for review here.

SEC Comment Letters

The Middle Market and Small Business Committee has been involved in four ABA comment letters to the SEC relating to the JOBS Act. Two of these comment letters are posted on the SEC website: a letter dated October 5, 2012 on the SEC's proposed rules relating the elimination of the prohibition on general solicitation and general advertising in Rule 506 and Rule 144A offerings and a letter dated September 7, 2012 on new Section 3(b)(2) of the Securities Act (Section 401 of the JOBS Act), creating a Regulation A-type exemption for offerings up to $50 million. The other two letters are still in progress. One relates to crowdfunding and is presumably close to final. The other, relating to the amendments to Section 12(g), is still in the very early stages of drafting.

Working on comment letters is always an interesting process. These have been unusual because they have preceded the SEC's own rulemaking process (except in the case of the letter concerning the elimination of the prohibition on general solicitation, which was begun before, but revised and submitted after, the SEC's rule proposal). Participation in the process as part of the Middle Market and Small Business Committee is open to everyone in the Committee. Members interested in becoming involved in the process are invited to contact Bonnie J. Roe (BRoe@CohenGresser.com).

Business Entities Governance Subcommittee

The Business Entities Governance Subcommittee is currently working with the Corporate Documents and Process Committee on a model shareholders' agreement drafting project. Our model document is designed to address closely held corporations held by non-related owners. There will be a drafting session at the ABA Business Law Section Spring Meeting on Thursday, April 4, 2013, from 10:30 am to 12:30 pm, in the Morgan Room of the Washington Hilton. All committee members are welcome to attend and there will be plenty of opportunities to get involved.

The Business Entities Governance Subcommittee is always open to ideas for CLE programs and drafting projects. Additionally, members are welcome to raise ideas for this subcommittee at our Middle Market and Small Business Committee meeting or individually to Randy McClanahan (rdm@johnstonbarton.com) or Eric Vendt (evendt@wtplaw.com).

Partnership and Alternative Business Entities Subcommittee

The Partnership and Alternative Business Entities Subcommittee has completed its work on Chapter 17 - General Partnerships, Joint Ventures, Limited Partnerships and Limited Liability Companies - for the Annual Review of Developments in Business and Corporation Litigation. We are also pleased to announce that we will be hosting a CLE program at the 2013 Spring Meeting in Washington, D.C., titled "Alternative Entities from Start to Finish: What Business Lawyers Need to Know about Formation, Governance, Litigation and Dissolution." The program, scheduled for April 4, from 10:30 a.m. to 12:30 p.m., will cover a variety of alternative entity issues from both a transactional and litigation perspective, including governance, fiduciary duties, squeeze outs and exit mechanisms, among others. The Corporate Counsel Committee and the Corporate Governance Committee are co-sponsoring the program. We continue to look for new members.

If you, or someone you know, is interested in joining our subcommittee, please do so through the ABA website. If you have questions, please contact the Partnership and Alternative Business Entities Subcommittee Chair, Dominick Gattuso (dgattuso@proctorheyman.com) or the subcommittee's Vice Chairs, Jason Jowers (jjowers@morrisjames.com) and Steve Brauerman (sbrauerman@bayardlaw.com). We look forward to seeing you at the Spring Meeting in Washington, D.C.



Committee Meeting Schedule

Thursday, April 4

Middle Market and Small Business Luncheon - Ticket Required
12:30PM - 2:00PM
Columbia 7, Terrace Level

International Expansion and Cross-Border Transactions
2:00PM - 3:00PM
Embassy, Terrace Level

Meeting of Vice Chairs and Subcommittee Chairs
3:00PM - 4:00PM
Dupont, Terrace Level

Securities Regulation and Task Force on Private Placement Broker Joint Meeting
4:30PM - 5:30PM
Gunston, Terrace Level

Friday, April 5

CLE Program: Complex Entity Structures Simplified
8:00AM - 10:00AM
Lincoln West, Concourse Level

Middle Market and Small Business Joint Meeting
10:30AM - 11:30AM
Fairchild, Terrace Level

Business Entities and Governance
1:00PM - 2:00PM
Independence, Lobby Level

Task Force on Securities Regulation
2:00PM - 3:00PM
L'Enfant, Lobby Level

Emerging Companies
3:00PM - 4:00PM
L'Enfant, Lobby Level

Saturday, April 6

CLE Program: Avoiding Ethical Traps and Pitfalls Most Transactions Attorneys Didn't Know Were There - But Should!
8:00AM - 10:00AM
Jefferson West, Concourse Level

Printable Master Schedule of Events for the Spring Meeting.

Committee Luncheon

The Committee on Middle Market and Small Business is pleased to invite you to attend their luncheon, on Thursday, April 4, 2013 during the Spring Meeting of the ABA Business Law Section in Washington, D.C. Our guest speaker for the luncheon will be Daniel L. Goelzer. Daniel is one of the original members of the Public Company Accounting Oversight Board and a former acting chairman. Goelzer retired from the PCAOB last year after serving for 10 years on the board and has returned to Baker & McKenzie's Washington, D.C., offices where he will be taking on a strategic role in Baker & McKenzie's global corporate, securities and banking compliance practices.

Join the Committee on Middle Market and Small Business:

Where: Columbia 7, Terrace Level
When: Thursday, April 4, 12:30PM - 2:00PM
RSVP: You must be registered for the Spring Meeting to attend this event. Register for the Spring Meeting or click here to add the Middle Market and Small Business Luncheon to your existing registration.

Committee Dinner

The Middle Market & Small Business Committee and Private Equity & Venture Capital Committee are pleased to invite you to attend their joint dinner, on Thursday, April 4, 2013 during the Spring Meeting of the ABA Business Law Section in Washington, D.C. The dinner will be held at Smith & Wollensky on Thursday, April 4, 2013 beginning with a cocktail reception at 7:00 p.m. followed by dinner at 8:00 p.m. It's the perfect setting to unwind and catch up with friends.

Where: Smith & Wollensky
When: Thursday, April 4, at 7:00 p.m. for cocktails, dinner to follow at 8:00 p.m.
RSVP: You must be registered for the Spring Meeting to attend this event. Register for the Spring Meeting or click here to add the Middle Market and Small Business/Private Equity and Venture Capital Dinner to your existing registration. Please click here to download the reservation form.

Plenary Meeting

Middle Market and Small Business Committee Meeting
Chair: Gregory C. Yadley
Friday, April 5 at 4:00 p.m. to 6:00 p.m.
Columbia 11, Terrace Level

The plenary meeting of the Middle Market and Small Business Committee is an opportunity to learn about the Committee and opportunities for involvement, as well as consider the important issues facing the Committee. This is an open meeting and all committee members are encouraged to attend.


Contact Us
Committee Chair
Gregory C. Yadley
Shumaker Loop & Kendrick, LLP
Bank of American Plaza
101 East Kennedy Boulevard
Suite 2800
Tampa, FL 33602
T: (813) 229-7600
F: (813) 229-1660
gyadley@slk-law.com


Vice Chairs
Mary M. Sjoquist
Public Company Accounting Oversight Board
1666 K Street, NW
Washington, DC 20006-2803
T: (202) 207-9100
F: (202) 862-8430
sjoquistm@pcaobus.org


Thomas J. Walsh Jr.
Brody Wilkinson PC
2507 Post Road
Southport, CT 06890
T: (203) 319-7100
F: (203) 254-1772
twalsh@brodywilk.com


Business Visions Co-Editors
David Wicker
Law Office of J. David Wicker, PLLC
1720 West End Avenue, Suite 400
Nashville, Tennessee 37203
T: (615) 942-1663
F: (615) 942-1663
dwicker@wickerpllc.com


Lawrence A. Goldman
Gibbons P.C.
One Gateway Center
Newark, NJ 07102-5310
T: (973) 596-4645
F: (973) 639-6283
lgoldman@gibbonslaw.com




back to top ↑

 
  Articles
   
Renting the Space thatís Right for Your Business: Things for Tenants to Consider in a Commercial Lease
Katherine Grossi

Your client's business has flourished and it is poised for new challenges and expansion. It has decided to expand and capture demand in a target market outside of your country. Product is ready, recruitment is in progress, and your client has identified the perfect location to set up shop - Ontario, Canada.

Determining whether to lease or buy space in this new territory is one of the first decisions your client will need to make. Any person purchasing commercial property in Ontario will be required to pay land transfer tax on the purchase price of the property. The purchase will also be subject to 13% tax known as Goods and Services Tax/Harmonized Sales Tax (GST/HST).

In our experience, most businesses setting up shop in Ontario initially choose to lease. Before your client gets the keys to its new office or retail space, it is important to ensure that the commercial lease has been carefully reviewed and negotiated. A grey area can mean extra costs or misunderstandings regarding the space your client is entitled to use. Making sure these grey areas are eliminated is essential to the success of your client's venture.

Captive Insurance Companies for Small and Mid-Sized Businesses
Sara K. Stock

What happens when you couple a desire to decrease tax liability with a desire to manage risks that are currently uninsured? If you are a small or mid-sized business, the result could be a microcaptive insurance company.

Section 831(b) of the Internal Revenue Code provides for the creation of small property and casualty insurance companies writing annual premiums less than $1.2 million, commonly referred to as microcaptive insurance companies ("MIC"). MICs are a form of self-insurance, but there is an official risk shifting mechanism, corporate structure, clearly defined roles for officers and third parties, rules of governance, and operations that are documented and reported. If structured appropriately, risk can be converted into tax-deductible premiums which are paid into the captive. The risk may then be addressed through the pre-tax fund. If there are few or no claims, the captive can produce a significant tax advantaged surplus to use as coverage funding for future business risks, or may be distributed.

back to top ↑

 
You are receiving this Committee Newsletter because you are a member of the ABA Business Law Section Middle Market and Small Business Committee.
To opt-out of this publication, please visit the ABA Subscription Portal.
*        *        *
You can access the Middle Market and Small Business Committee website here.
*        *        *
Your e-mail address will only be used within the ABA and its entities. We do not sell or rent e-mail addresses to anyone outside the ABA.
Update your profile | Manage your publication/email preferences | Unsubscribe | Privacy Policy | Contact Us

American Bar Association: 321 N Clark | Chicago, IL 60654 | 800-285-2221
Business Law Section: 312-988-5588 | Section Staff | businesslaw@americanbar.org | www.ababusinesslaw.org
Copyright © 2012