Post-effective Amendment Filed Solely to Add Exhibits to a Registration Statement (pos Ex)
August 31 2018 - 4:48PM
Edgar (US Regulatory)
As filed with the Securities and Exchange
Commission on August 31, 2018
Securities Act File No. 333-224976
U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM N-2
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
x
(Check appropriate box or boxes)
Pre-Effective Amendment No.
Post-Effective Amendment No. 2
NEWTEK BUSINESS SERVICES CORP.
(Exact name of Registrant as specified
in charter)
1981 Marcus Avenue, Suite 130
Lake Success, NY 11042
(Address of Principal Executive Offices)
Registrant’s telephone number,
including Area Code: (212) 356-9500
Barry Sloane
Chief Executive Officer and President
Newtek Business Services Corp.
1981 Marcus Avenue, Suite 130
Lake Success, NY 11042
(Name and address of agent for service)
COPIES TO:
Steven B. Boehm
Cynthia M. Krus
Eversheds Sutherland (US) LLP
700 Sixth Street NW, Suite 700
Washington, DC 20001
(202) 383-0100
Fax: (202) 637-3593
Approximate date of proposed public offering:
From time to time after the effective date of this Registration Statement.
If any securities being registered on this
form will be offered on a delayed or continuous basis in reliance on Rule 415 under the Securities Act of 1933, other than securities
offered in connection with a dividend reinvestment plan, check the following box.
x
EXPLANATORY NOTE
This Post-Effective Amendment No. 2 to
the Registration Statement on Form N-2 (File No. 333-224976
) of Newtek Business Services Corp. (“Newtek”)
is being filed pursuant to Rule 462(d) under the Securities Act of 1933, as amended (the “Securities Act”), solely
for the purpose of adding exhibits to such Registration Statement. Accordingly, this Post-Effective Amendment No. 2 consists
only of a facing page, this explanatory note and Part C of the Registration Statement on Form N-2. This Post-Effective Amendment
No. 2 does not change the form of prospectus relating to the Registration Statement on Form N-2 previously filed with the Securities
and Exchange Commission (the “SEC”). Pursuant to Rule 462(d) under the Securities Act, this Post-Effective Amendment
No. 2 shall become effective immediately upon filing with the SEC.
PART C — OTHER INFORMATION
ITEM 25. FINANCIAL STATEMENTS AND EXHIBITS
1. Financial Statements
The following financial statements of Newtek
Business Services Corp. are included in Part A “Information Required to be in the Prospectus” of the Registration Statement.
NEWTEK BUSINESS SERVICES CORP. AND SUBSIDIARIES
INDEX TO FINANCIAL STATEMENTS
Table of Contents
|
|
PAGE
NO.
|
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
|
|
|
Report of Independent Registered Public Accounting Firm
|
|
F-3
|
Report of Independent Registered Public Accounting Firm on Internal Control Over Financial Reporting
|
|
F-4
|
Consolidated Statements of Assets and Liabilities as of December 31, 2017 and 2016
|
|
F-5
|
Consolidated Statements of Operations for the years ended December 31, 2017, 2016 and 2015
|
|
F-6
|
Consolidated Statements of Changes in Net Assets for the years ended December 31, 2017, 2016 and 2015
|
|
F-7
|
Consolidated Statements of Cash Flows for the years ended December 31, 2017, 2016 and 2015
|
|
F-9
|
Consolidated Schedules of Investments as of December 31, 2017 and 2016
|
|
F-11
|
Notes to Consolidated Financial Statements
|
|
F-156
|
Universal
Processing Services of Wisconsin, LLC
Financial
Statements
2017 Financial Statements (unaudited)
|
|
|
Balance Sheet
|
|
F-191
|
Statement of Income
|
|
F-192
|
Statement of Changes in Member’s Deficit
|
|
F-193
|
Statement of Cash Flows
|
|
F-194
|
Notes to Financial Statements
|
|
F-195
|
2016 Financial Statements (audited)
|
|
|
Independent Auditor’s Report
|
|
F-204
|
Balance Sheet
|
|
F-205
|
Statement of Income
|
|
F-206
|
Statement of Changes in Member’s Deficit
|
|
F-207
|
Statement of Cash Flows
|
|
F-208
|
Notes to Financial Statements
|
|
F-209
|
2015 Financial Statements (audited)
|
|
|
Independent Auditor’s Report
|
|
F-218
|
Consolidated Balance Sheet
|
|
F-219
|
Consolidated Statement of Income
|
|
F-220
|
Consolidated Statement of Changes in Member’s Deficit
|
|
F-221
|
Consolidated Statement of Cash Flows
|
|
F-222
|
Notes to Consolidated Financial Statements
|
|
F-223
|
|
|
PAGE
NO.
|
INDEX TO CONSOLIDATED INTERIM FINANCIAL STATEMENTS
|
|
|
Condensed Consolidated Statements of Assets and Liabilities as of March 31, 2018 (Unaudited) and December 31, 2017
|
|
F-230
|
Condensed Consolidated Statements of Operations (Unaudited) for the three ended March 31, 2018 and 2017
|
|
F-231
|
Condensed Consolidated Statement of Changes in Net Assets (Unaudited) for the three months ended March 31, 2018
|
|
F-232
|
Condensed Consolidated Statements of Cash Flows (Unaudited) for the three months ended March 31, 2018 and 2017
|
|
F-233
|
Consolidated Schedule of Investments as of March 31, 2018 (Unaudited) and December 31, 2017
|
|
F-234
|
Notes to Condensed Consolidated Financial Statements (Unaudited)
|
|
F-399
|
2. Exhibits
Exhibit
Number
|
|
Description
|
|
|
|
a.
|
|
Amended and Restated Articles of Incorporation of Newtek (Incorporated by reference to Exhibit A to Newtek’s Pre-Effective Amendment No. 3 to its Registration Statement on Form N-2, No. 333-191499, filed November 3, 2014).
|
|
|
|
b.
|
|
Bylaws of Newtek (Incorporated by reference to Exhibit 2 to Newtek’s Registration Statement on Form N-14, No. 333-195998, filed September 24, 2014).
|
|
|
|
c.
|
|
Not applicable.
|
|
|
|
d.1
|
|
Form of Common Stock Certificate (Incorporated by reference to Exhibit 5 to Newtek’s Registration Statement on Form N-14, No. 333-195998, filed September 24, 2014).
|
|
|
|
d.2
|
|
Base Indenture, dated as of September 23, 2015, between Newtek, as issuer, and U.S. Bank National Association, as trustee (Incorporated by reference to Exhibit D.2 to Newtek’s Post-Effective Amendment No. 1 to its Registration Statement on Form N-2, No. 333-204915, filed September 23, 2015).
|
|
|
|
d.3
|
|
First Supplemental Indenture, dated as of September 23, 2015, between Newtek, as issuer, and U.S. Bank National Association, as trustee (Incorporated by reference to Exhibit D.3 to Newtek’s Post-Effective Amendment No. 1 to its Registration Statement on Form N-2, No. 333-204915, filed September 23, 2015).
|
|
|
|
d.4
|
|
Form of Global Note with respect to the 7.5% Notes due 2022 (Included as Exhibit A of Exhibit D.3) (Incorporated by reference to Exhibit D.4 to Newtek’s Post-Effective Amendment No. 1 to its Registration Statement on Form N-2, No. 333-204915, filed September 23, 2015).
|
|
|
|
d.5
|
|
Second Supplemental Indenture, dated as of April 22, 2016, between Newtek, as issuer, and U.S. Bank National Association, as trustee (Incorporated by reference to Exhibit D.6 to Post-Effective Amendment No. 3 to its Registration Statement on Form N-2, No. 333-204915, filed April 22, 2016).
|
|
|
|
d.6
|
|
Form of Global Note with respect to the 7.00% Notes due 2021 (Included as Exhibit A of Exhibit D.5) (Incorporated by reference to Exhibit D.6 to Post-Effective Amendment No. 3 to its Registration Statement on Form N-2, No. 333-204915, filed April 22, 2016).
|
|
|
|
d.7
|
|
Third Supplemental Indenture, dated as of February 21, 2018, between Newtek, as issuer, and U.S. Bank National Association, as trustee (Incorporated by reference to Exhibit d.8 to Newtek’s Post-Effective Amendment No. 7 to its Registration Statement on Form N-2, No. 333-212436, filed February 21, 2018).
|
|
|
|
d.8
|
|
Form of Global Note with respect to the 6.25% Notes due 2023 (Incorporated by reference to Exhibit d.8 to Newteks Post-Effective Amendment No. 7 to its Registration Statement on Form N-2, No 333-212436, filed February 21, 2018)
|
|
|
|
d.9
|
|
Statement of Eligibility of Trustee on Form T-1 (Incorporated by reference to Exhibit d.9 to Newtek’s Registration Statement on Form N-2, No. 333-224976, filed May 16, 2018).
|
|
|
|
e.
|
|
Form of Dividend Reinvestment Plan (Incorporated by reference to Exhibit E to Newtek’s Pre-Effective Amendment No. 3 to its Registration Statement on Form N-2, No. 333-191499, filed November 3, 2014).
|
f.1
|
|
Lease and Master Services Agreement dated March 15, 2007 between CrystalTech Web Hosting, Inc. and i/o Data Centers (Incorporated by reference to Exhibit 10.4 to Newtek’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2007, filed May 15, 2007).
|
|
|
|
f.2.1
|
|
Guaranty of Payment and Performance, dated as of April 30, 2010, between Newtek Business Services, Inc. and Capital One Bank, N.A. (Incorporated by reference herein to Exhibit 10.16.2 to Newteks Current Report on Form 8-K, filed May 5, 2010).
|
|
|
|
f.3.1
|
|
Loan and Security Agreement, dated as of December 15, 2010, between Newtek Small Business Finance, Inc. and Capital One Bank, N.A. (Incorporated by reference herein to Exhibit 10.18.1 to Newteks Current Report on Form 8-K, filed December 20, 2010, as amended on March 2, 2011).
|
|
|
|
f.3.2
|
|
Guaranty Agreement, dated as of December 15, 2010, between Newtek Business Services, Inc. and Capital One Bank, N.A. (Incorporated by reference herein to Exhibit 10.18.2 to Newtek’s Current Report on Form 8-K, filed December 20, 2010, as amended on March 2, 2011).
|
|
|
|
f.3.3
|
|
Amended and Restated Loan and Security Agreement, dated as of June 16, 2011, by and between Newtek Small Business Finance, Inc. and Capital One, N.A. (Incorporated by reference herein to Exhibit 10.8.3 to Newtek’s Current Report on Form 8-K, filed June 21, 2011).
|
|
|
|
f.3.4
|
|
Amended and Restated Guaranty of Payment and Performance, dated as of June 16, 2011, by and between Newtek Business Services, Inc., and Capital One, N.A. (Incorporated by reference herein to Exhibit 10.8.4 to Newtek’s Current Report on Form 8-K, filed June 21, 2011).
|
|
|
|
f.3.5
|
|
Amendment to Loan Documents, dated October 6, 2011, by and among Newtek Small Business Finance, Inc., Capital One Bank, N.A. and each of the guarantors listed on the signature pages thereto (Incorporated by reference herein to Exhibit 10.8.5 to Newtek’s Current Report on Form 8-K, filed October 11, 2011).
|
|
|
|
f.3.6
|
|
Amended and Restated Loan and Security Agreement, dated as of July 16, 2013, by and between Newtek Small Business Finance, Inc. and Capital One, National Association (Incorporated by reference herein to Exhibit 10.1 to Newtek’s Current Report on Form 8-K, filed July 19, 2013).
|
|
|
|
f.3.7
|
|
Guaranty and Security Agreement Letter Amendment, dated as of July 16, 2013, by and between Capital One, National Association and Newtek Business Services, Inc. (Incorporated by reference herein to Exhibit 10.2 to Newtek’s Current Report on Form 8-K, filed July 19, 2013).
|
|
|
|
f.3.8
|
|
Amended and Restated Loan and Security Agreement, dated as of October 29, 2014, by and between Newtek Small Business Finance, Inc. and Capital One, National Association (Incorporated by reference herein to Exhibit 10.1 to Newtek’s Current Report on Form 8-K, filed October 30, 2014).
|
|
|
|
f.3.9
|
|
Guaranty and Security Agreement Letter Agreement, dated as of October 29, 2014, by and between Capital One, National Association and Newtek Business Services, Inc. (Incorporated by reference herein to Exhibit 10.2 to Newtek’s Current Report on Form 8-K, filed October 30, 2014).
|
|
|
|
f.3.10
|
|
First Amendment, dated as of June 18, 2015, to the Amended and Restated Loan and Security Agreement dated as of October 29, 2014, by and between Newtek Small Business Finance, LLC (successor-in-interest by merger to Newtek Small Business Finance, Inc.), Capital One, National Association and Newtek Business Services Corp. (Incorporated by reference herein to Exhibit 10.1 to Newtek’s Current Report on Form 8-K, filed June 24, 2015).
|
|
|
|
f.3.11
|
|
Amended and Restated Guaranty of Payment and Performance, dated as of June 18, 2015, by Newtek Business Services Corp. (successor-in-interest to Newtek Business Services, Inc.) in favor of Capital One, National Association (Incorporated by reference herein to Exhibit 10.2 to Newtek’s Current Report on Form 8-K, filed June 24, 2015).
|
f.3.12
|
|
Fourth Amended and Restated Loan and Security Agreement, dated as of May 11, 2017, by and among Newtek Small Business Finance, LLC, Capital One, National Association and UBS Bank USA as Lenders, and Capital One, National Association as Administrative Agent, Sole Bookrunner and Sole Lead Arranger (Incorporated by reference herein to Exhibit 10.1 to Newtek’s Current Report on Form 8-K, filed May 16, 2017).
|
|
|
|
f.3.13
|
|
Second Amended and Restated Guaranty of Payment and Performance, dated as of May 11, 2017, delivered by Newtek Business Services Corp. in favor of Capital One, National Association, in its capacity as administrative agent, and the Lenders under the Fourth Amended and Restated Loan and Security Agreement (Incorporated by reference herein to Exhibit 10.2 to Newtek’s Current Report on Form 8-K, filed May 16, 2017).
|
|
|
|
f.4.1
|
|
Newtek Small Business Loan Trust Class A Notes, dated December 22, 2010 (Incorporated by reference herein to Exhibit 10.19.1 to Newtek’s Current Report on Form 8-K, filed December 23, 2010).
|
|
|
|
f.4.2
|
|
Amended Newtek Small Business Loan Trust Class A Notes, dated December 29, 2011 (Incorporated by reference herein to Exhibit 10.19.2 to Newtek’s Current Report on Form 8-K, filed January 5, 2012).
|
|
|
|
f.4.3
|
|
Additional Newtek Small Business Loan Trust Class A Notes, dated December 29, 2011 (Incorporated by reference herein to Exhibit 10.19.3 to Newtek’s Current Report on Form 8-K, filed January 5, 2012).
|
|
|
|
f.5.1
|
|
Loan and Security Agreement, dated as of February 28, 2011, by and between CDS Business Services, Inc. and Sterling National Bank (Incorporated by reference herein to Exhibit 10.10.1 to Newtek’s Current Report on Form 8-K, filed March 3, 2011).
|
|
|
|
f.5.2
|
|
Guaranty, dated as of February 28, 2011, by and between Newtek Business Services, Inc. and Sterling National Bank (Incorporated by reference herein to Exhibit 10.10.2 to Newtek’s Current Report on Form 8-K, filed March 3, 2011).
|
|
|
|
f.5.3
|
|
Amendment No. 1, dated December 5, 2012, to Loan and Security Agreement, dated as of February 28, 2011, by and between CDS Business Services, Inc. and Sterling National Bank (Incorporated by reference herein to Exhibit 10.9.3 to Newtek’s Current Report on Form 8-K, filed December 11, 2012).
|
|
|
|
f.5.4
|
|
Amendment No. 2, dated August 27, 2015, to Loan and Security Agreement, dated as of February 28, 2011, by and between CDS Business Services, Inc. and Sterling National Bank (Incorporated by reference herein to Exhibit 10.1 to Newtek’s Current Report on Form 8-K filed September 1, 2015).
|
|
|
|
f.5.5
|
|
Loan and Security Agreement, dated as of August 27, 2015, by and between CDS Business Services, Inc., as borrower, Sterling National Bank, as administrative agent and collateral agent, and Newtek, as a guarantor (Incorporated by reference herein to Exhibit 10.2 to Newtek’s Current Report on Form 8-K filed September 1, 2015).
|
|
|
|
f.5.6
|
|
Guaranty, dated as of August 27, 2015, by and between Newtek and Sterling National Bank (Incorporated by reference herein to Exhibit 10.3 to Newtek’s Current Report on Form 8-K filed September 1, 2015).
|
|
|
|
f.5.7
|
|
Amendment No. 2 to the Loan and Security Agreement, dated as of August 27, 2015, by and between CDS Business Services, Inc. and Sterling National Bank (Incorporated by reference herein to Exhibit 10.1 to Newtek’s Current Report on Form 8-K, filed December 9, 2015).
|
f.5.8
|
|
Amended and Restated Loan and Security Agreement, dated as of December 1, 2015, by and between CDS Business Services, Inc., Sterling National Bank and BankUnited, N.A. (Incorporated by reference herein to Exhibit 10.2 to Newtek’s Current Report on Form 8-K, filed December 9, 2015).
|
|
|
|
f.5.9
|
|
Guaranty, dated as of December 1, 2015, by and between Newtek and Sterling National Bank (Incorporated by reference herein to Exhibit 10.3 to Newtek’s Current Report on Form 8-K, filed December 9, 2015).
|
|
|
|
f.6
|
|
Credit Agreement by and between Newtek Business Services, Inc. and Capital One, National Association, dated as of June 26, 2014 (Incorporated by reference to Exhibit 10.1 to Newtek’s Current Report on Form 8-K filed July 1, 2014).
|
|
|
|
f.7
|
|
Credit
and Guaranty Agreement, dated as of June 23, 2015, by and between Universal Processing Services of Wisconsin LLC, CrystalTech
Web Hosting, Inc., as borrowers, Goldman Sachs Bank USA, as Administrative Agent, Collateral Agent and Lead Arranger, various
lenders, and Newtek, Newtek Business Services Holdco 1, Inc. and certain subsidiaries of Newtek Business Services Holdco 1,
Inc., as guarantors (Incorporated by reference herein to Exhibit 10.1 to Newtek’s Current Report on Form 8-K, filed
June 25, 2015).
|
|
|
|
f.8
|
|
Amended
and Restated Credit and Guaranty Agreement, dated June 21, 2017, by and among Universal Processing Services of Wisconsin
LLC, CrystalTech Web Hosting, Inc., Small Business Lending, LLC, ADR Partners, LLC, Premier Payments LLC, Newtek Business
Services Corp., Wilshire Holdings I, Inc., The Whitestone Group, LLC, Newtek Business Services Holdco 1, Inc., Banc-Serv Acquisition,
Inc., certain subsidiaries of Newtek Business Services Holdco 1, Inc. and Banc-Serv Acquisition, Inc., including Newtek LSP
Holdco, LLC, CRY Sales, LLC and UPSWI Sales, LLC, the Lenders party thereto from time to time, Goldman Sachs Bank USA, as
Administrative Agent and Collateral Agent, and Goldman Sachs Specialty Lending Group, L.P., as Lead Arranger (incorporated
by reference to Exhibit 10.1 to Newtek’s Current Report on Form 8-k, filed June 23, 2017).
|
|
|
|
g.
|
|
Not Applicable.
|
|
|
|
h.1
|
|
Form of Equity
Underwriting Agreement (Incorporated by reference to Exhibit h.1 to Newtek’s Pre-Effective Amendment No. 2 to its Registration
Statement on Form N-2, No 333-212436, filed August 25, 2016).
|
|
|
|
h.2
|
|
Form of Debt
Underwriting Agreement (Incorporated by reference to Exhibit h.2 to Newtek’s Pre-Effective Amendment No. 2 to its Registration
Statement on Form N-2, No 333-212436, filed August 25, 2016).
|
|
|
|
h.3
|
|
Form of Equity
Distribution Agreement (Incorporated by reference to Exhibit h.3 to Newtek’s Pre-Effective Amendment No. 2 to its Registration
Statement on Form N-2, No 333-212436, filed August 25, 2016).
|
|
|
|
h.4
|
|
Equity Distribution
Agreement, dated as of March 20, 2017, by and among Newtek, JMP Securities LLC, Compass Point Research & Trading,
LLC, and Ladenburg Thalmann & Co. Inc. (Incorporated by reference to Exhibit h.5 to Newtek’s Post-Effective Amendment
No. 2 to its Registration Statement on Form N-2, No. 333-212436, filed March 21, 2017).
|
|
|
|
h.5
|
|
Amended
and Restated Equity Distribution Agreement, dated as of September 6, 2017, by and among Newtek, JMP Securities LLC,
Compass Point Research & Trading, LLC, Ladenburg Thalmann & Co. Inc., and D.A. Davidson & Co. (Incorporated
by reference Exhibit h.6 to Newtek’s Post-Effective Amendment No. 6 to its Registration Statement on Form N-2, No.
212436, filed September 8, 2017).
|
h.6
|
|
First Supplement to the Amended and Restated Equity Distribution Agreement, dated as of July 3, 2018, by and among Newtek, JMP Securities LLC, Compass Point Research & Trading, LLC, Ladenburg Thalmann & Co. Inc., and D.A. Davidson & Co. (Incorporated by reference to Exhibit h.6 to Newtek’s Post-Effective Amendment No. 1 to its Registration Statement on Form N-2, No. 333-224976, filed July 3, 2018.
|
|
|
|
h.7
|
|
Second Amended and Restated Equity Distribution Agreement, dated as of August 31, 2018, by and among Newtek and the several Placement Agents named in Schedule A thereto.*
|
|
|
|
i.
|
|
Newtek 2014
Stock Incentive Plan (Incorporated by reference to Exhibit 8.6 to Newtek’s Pre-Effective Amendment No. 2
to its Registration Statement on Form N-14, No. 333-195998, filed September 24, 2014).
|
|
|
|
j.1
|
|
Amended and
Restated Form of Custodian Agreement (Incorporated by reference to Exhibit 99.1 to Newtek’s Quarterly Report on
Form 10-Q for the quarter ended September 30, 2015, filed November 5, 2015).
|
|
|
|
k.1
|
|
Employment
Agreement with Barry Sloane, dated April 1, 2018, (Incorporated by reference to Exhibit 10.1 to Newtek’s Current
Report on Form 8-K filed April 30, 2018).
|
|
|
|
k.2
|
|
Employment
Agreement with Jennifer C. Eddelson, dated April 1, 2018 (Incorporated by reference to Exhibit 10.2 to Newtek’s
Current Report on Form 8-K filed April 30, 2018).
|
|
|
|
k.3
|
|
Employment
Agreement with Michael A. Schwartz, dated April 1, 2018, (Incorporated by reference to Exhibit 10.3 to Newtek’s
Current Report on Form 8-K filed April 30, 2018).
|
|
|
|
k.4
|
|
Revolving Credit and Security Agreement, dated as of July 31, 2018, by and among Newtek Business Lending,
LLC and Capital One, National Association.*
|
|
|
|
k.5
|
|
Guaranty of Payment and Performance, dated as of July 31, 2018, by and among Newtek and Capital One,
National Association.*
|
|
|
|
l.1
|
|
Opinion of Eversheds Sutherland (US) LLP (Incorporated by reference herein to Newtek’s Pre-Effective Amendment No. 1 to its Registration Statement on Form N-2, No. 224976
, filed June 26, 2018).
|
|
|
|
l.2
|
|
Opinion of Eversheds Sutherland (US) LLP related to issuance and sale, from time to time, of up to 4,400,000
shares of Newtek’s common stock.*
|
|
|
|
m.
|
|
Not applicable.
|
|
|
|
n.1
|
|
Consent of Eversheds Sutherland (US) LLP (Incorporated by reference to Exhibit l.1).
|
|
|
|
n.2
|
|
Report of Independent Registered Public Accounting Firm (Incorporated by reference herein to Newtek’s Pre-Effective Amendment No. 1 to its Registration Statement on Form N-2, No. 224976
, filed June 26, 2018).
|
|
|
|
n.3
|
|
Consent of Independent Registered Public Accounting Firm (Incorporated by reference herein to Newtek’s Pre-Effective Amendment No. 1 to its Registration Statement on Form N-2, No. 224976
, filed June 26, 2018).
|
|
|
|
n.4
|
|
Consent of Independent Auditor (Incorporated by reference herein to Newtek’s Pre-Effective Amendment No. 1 to its Registration Statement on Form N-2, No. 224976
, filed June 26, 2018).
|
|
|
|
n.5
|
|
Consent of Independent Auditor (Incorporated by reference herein to Newtek’s Pre-Effective Amendment No. 1 to its Registration Statement on Form N-2, No. 224976
, filed June 26, 2018).
|
|
|
|
o.
|
|
Not applicable.
|
|
|
|
p.
|
|
Not applicable.
|
|
|
|
q.
|
|
Not applicable.
|
|
|
|
r.
|
|
Code of Ethics (Incorporated by reference to Exhibit R to Newteks Registration Statement on Form N-2, No. 333-191499, filed November 3, 2014).
|
|
|
|
99.1
|
|
Code of Business Conduct and Ethics of Registrant (Incorporated by reference to Exhibit 99.1 to Newtek’s Registration Statement on Form N-2, No. 333-191499, filed November 3, 2014).
|
|
|
|
99.2
|
|
Form of Prospectus Supplement for Common Stock Offerings (Incorporated by reference to Exhibit 99.2 to Newtek’s Pre-Effective Amendment No. 2 to its Registration Statement on Form N-2, No 333-212436, filed August 25, 2016).
|
|
|
|
99.3
|
|
Form of Prospectus Supplement for Preferred Stock Offerings (Incorporated by reference to Exhibit 99.3 to Newtek’s Pre-Effective Amendment No. 2 to its Registration Statement on Form N-2, No 333-212436, filed August 25, 2016).
|
|
|
|
99.4
|
|
Form of Prospectus Supplement for At-the-Market Offerings (Incorporated by reference to Exhibit 99.4 to Newtek’s Pre-Effective Amendment No. 2 to its Registration Statement on Form N-2, No 333-212436, filed August 25, 2016).
|
|
|
|
99.5
|
|
Form of Prospectus Supplement for Rights Offerings (Incorporated by reference to Exhibit 99.5 to Newtek’s Pre-Effective Amendment No. 2 to its Registration Statement on Form N-2, No 333-212436, filed August 25, 2016).
|
|
|
|
99.6
|
|
Form of Prospectus Supplement for Warrants (Incorporated by reference to Exhibit 99.6 to Newtek’s Pre-Effective Amendment No. 2 to its Registration Statement on Form N-2, No 333-212436, filed August 25, 2016).
|
|
|
|
99.7
|
|
Form of Prospectus Supplement for Retail Note Offerings (Incorporated by reference to Exhibit 99.7 to Newtek’s Pre-Effective Amendment No. 2 to its Registration Statement on Form N-2, No 333-212436, filed August 25, 2016).
|
|
|
|
99.8
|
|
Form of Prospectus Supplement for Institutional Note Offering (Incorporated by reference to Exhibit 99.8 to Newtek’s Pre-Effective Amendment No. 2 to its Registration Statement on Form N-2, No 333-212436, filed August 25, 2016).
|
* Filed herewith.
ITEM 26. MARKETING ARRANGEMENTS
The information contained under the heading
“Underwriting” on this Registration Statement is incorporated herein by reference.
ITEM 27. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
SEC registration fee
|
|
$
|
37,350
|
*
|
FINRA filing fee
|
|
$
|
45,500
|
*
|
Nasdaq Global Market
|
|
$
|
30,000
|
**
|
Printing and postage
|
|
$
|
150,000
|
**
|
Legal fees and expenses
|
|
$
|
250,000
|
**
|
Accounting fees and expenses
|
|
$
|
250,000
|
**
|
Total
|
|
$
|
762,850
|
|
*
|
This amount has been offset against filing fees associated with unsold securities registered under a previous registration statement.
|
**
|
Estimated for filing purposes.
|
ITEM 28. PERSONS CONTROLLED BY OR UNDER COMMON CONTROL
See “Management,” “Certain
Relationships and Transactions,” “Portfolio Companies” and “Control Persons and Principal Stockholders”
in the Prospectus contained herein.
ITEM 29. NUMBER OF HOLDERS OF SECURITIES
The following table sets forth the number
of record holders of the Registrant’s common stock at June 25, 2018:
Title of Class
|
|
Number of
Record Holders
|
|
Common Stock, par value $0.02 per share
|
|
|
124
|
|
ITEM 30. INDEMNIFICATION
Directors and Officers
Reference is made to Section 2-418 of the
Maryland General Corporation Law, Article VII of the Registrant’s charter and Article XI of the Registrant’s bylaws.
Maryland law permits a Maryland corporation
to include in its charter a provision limiting the liability of its directors and officers to the corporation and its stockholders
for money damages except for liability resulting from (a) actual receipt of an improper benefit or profit in money, property or
services or (b) active and deliberate dishonesty established by a final judgment as being material to the cause of action. The
Registrant’s charter contains such a provision which eliminates directors’ and officers’ liability to the maximum
extent permitted by Maryland law, subject to the requirements of the Investment Company Act of 1940, as amended (the “1940
Act”).
The Registrant’s charter authorizes
the Registrant, to the maximum extent permitted by Maryland law and subject to the requirements of the 1940 Act, to indemnify any
present or former director or officer or any individual who, while serving as the Registrant’s director or officer and at
the Registrant’s request, serves or has served another corporation, real estate investment trust, partnership, joint venture,
trust, employee benefit plan or other enterprise as a director, officer, partner or trustee, from and against any claim or liability
to which that person may become subject or which that person may incur by reason of his or her service in any such capacity and
to pay or reimburse their reasonable expenses in advance of final disposition of a proceeding. The Registrant’s bylaws obligate
the Registrant, to the maximum extent permitted by Maryland law and subject to the requirements of the 1940 Act, to indemnify any
present or former director or officer or any individual who, while serving as the Registrant’s director or officer and at
the Registrant’s request, serves or has served another corporation, real estate investment trust, partnership, joint venture,
trust, employee benefit plan or other enterprise as a director, officer, partner or trustee and who is made, or threatened to be
made, a party to the proceeding by reason of his or her service in that capacity from and against any claim or liability to which
that person may become subject or which that person may incur by reason of his or her service in any such capacity and to pay or
reimburse his or her reasonable expenses in advance of final disposition of a proceeding. The charter and bylaws also permit the
Registrant to indemnify and advance expenses to any person who served a predecessor of the Registrant in any of the capacities
described above and any of the Registrant’s employees or agents or any employees or agents of the Registrant’s predecessor.
In accordance with the 1940 Act, the Registrant will not indemnify any person for any liability to which such person would be subject
by reason of such person’s willful misfeasance, bad faith, gross negligence or reckless disregard of the duties involved
in the conduct of his or her office.
Maryland law requires a corporation (unless
its charter provides otherwise, which the Registrant’s charter does not) to indemnify a director or officer who has been
successful in the defense of any proceeding to which he or she is made, or threatened to be made, a party by reason of his or her
service in that capacity. Maryland law permits a corporation to indemnify its present and former directors and officers, among
others, against judgments, penalties, fines, settlements and reasonable expenses actually incurred by them in connection with any
proceeding to which they may be made, or threatened to be made, a party by reason of their service in those or other capacities
unless it is established that (a) the act or omission of the director or officer was material to the matter giving rise to the
proceeding and (1) was committed in bad faith or (2) was the result of active and deliberate dishonesty, (b) the director or officer
actually received an improper personal benefit in money, property or services or (c) in the case of any criminal proceeding, the
director or officer had reasonable cause to believe that the act or omission was unlawful. However, under Maryland law, a Maryland
corporation may not indemnify for an adverse judgment in a suit by or in the right of the corporation or for a judgment of liability
on the basis that a personal benefit was improperly received unless, in either case, a court orders indemnification, and then only
for expenses. In addition, Maryland law permits a corporation to advance reasonable expenses to a director or officer in advance
of final disposition of a proceeding upon the corporation’s receipt of (a) a written affirmation by the director or officer
of his or her good faith belief that he or she has met the standard of conduct necessary for indemnification by the corporation
and (b) a written undertaking by him or her or on his or her behalf to repay the amount paid or reimbursed by the corporation if
it is ultimately determined that the standard of conduct was not met.
ITEM 31. BUSINESS AND OTHER CONNECTIONS OF INVESTMENT ADVISER
Not applicable.
ITEM 32. LOCATION OF ACCOUNTS AND RECORDS
All accounts, books, and other documents
required to be maintained by Section 31(a) of the 1940 Act, and the rules thereunder are maintained at the offices of:
|
(1)
|
the Registrant, Newtek Business Services Corp., 1981 Marcus Avenue, Suite 130, Lake Success, NY 11042;
|
|
(2)
|
the Transfer Agent, American Stock Transfer and Trust Company, 6201 15
th
Avenue, Brooklyn, NY 11219; and
|
|
(3)
|
the Custodian, U.S. Bank National Association, 615 East Michigan Street, Milwaukee, Wisconsin 53202
|
ITEM 33. MANAGEMENT SERVICES
Not applicable.
ITEM 34. UNDERTAKINGS
(1)
|
Registrant undertakes to suspend the offering of the shares covered hereby until it amends its prospectus contained herein if (a) subsequent to the effective date of this Registration Statement, its net asset value declines more than 10% from its net asset value as of the effective date of this Registration Statement, or (b) its net asset value increases to an amount greater than its net proceeds as stated in the prospectus contained herein.
|
(3)
|
Registrant undertakes in the event that the securities being registered are to be offered to existing stockholders pursuant to warrants or rights, and any securities not taken by shareholders are to be reoffered to the public, to supplement the prospectus, after the expiration of the subscription period, to set forth the results of the subscription offer, the transactions by the underwriters during the subscription period, the amount of unsubscribed securities to be purchased by underwriters, and the terms of any subsequent underwriting thereof. Registrant further undertakes that if any public offering by the underwriters of the securities being registered is to be made on terms differing from those set forth on the cover page of the prospectus, the Registrant shall file a post-effective amendment to set forth the terms of such offering.
|
(4)
|
The Registrant hereby undertakes:
|
|
(a)
|
To file, during any period in which offers or sales are being made, a post-effective amendment to the registration statement:
|
|
(i)
|
to include any prospectus required by Section 10(a)(3)of the 1933 Act;
|
|
(ii)
|
to reflect in the prospectus any facts or events after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; and
|
|
(iii)
|
to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement.
|
|
(b)
|
That, for the purpose of determining any liability under the 1933 Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of those securities at that time shall be deemed to be the initial bona fide offering thereof; and
|
|
(c)
|
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering; and
|
|
(d)
|
That, for the purpose of determining liability under the 1933 Act to any purchaser, if the Registrant is subject to Rule 430C: Each prospectus filed pursuant to Rule 497(b), (c), (d) or (e) under the 1933 Act as part of a registration statement relating to an offering, other than prospectuses filed in reliance on Rule 430A under the 1933 Act, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness; Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.
|
|
(e)
|
That, for the purpose of determining liability of the Registrant under the 1933 Act to any purchaser in the initial distribution of securities, the undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to the purchaser:
|
|
(i)
|
any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 497 under the 1933 Act;
|
|
(ii)
|
the portion of any advertisement pursuant to Rule 482 under the 1933 Act relating to the offering containing material information about the undersigned Registrant or its securities provided by or on behalf of the undersigned Registrant; and
|
|
(iii)
|
any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser.
|
|
(f)
|
To file a post-effective amendment to the registration statement, and to suspend any offers or sales pursuant the registration statement until such post-effective amendment has been declared effective under the 1933 Act, in the event the shares of the Registrant is trading below its net asset value and either (i) Registrant receives, or has been advised by its independent registered accounting firm that it will receive, an audit report reflecting substantial doubt regarding the Registrant’s ability to continue as a going concern or (ii) Registrant has concluded that a material adverse change has occurred in its financial position or results of operations that has caused the financial statements and other disclosures on the basis of which the offering would be made to be materially misleading.
|
(7)
|
The Registrant undertakes to file a post-effective amendment to the registration statement during any period in which offers or sales of the Registrant’s securities are being made at a price below the net asset value per share of the Registrant’s common stock as of the date of the commencement of such offering and such offering will result in greater than 15% dilution to the net asset value per share of the Registrant’s common stock.
|
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, as amended, the Registrant has duly caused this Registration Statement on Form N-2 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of New York, in the State of New York, on August 31, 2018.
|
NEWTEK BUSINESS SERVICES CORP.
|
|
|
|
|
BY:
|
/s/ Barry Sloane
|
|
|
Barry Sloane
|
|
|
Chief Executive Officer, President and Chairman of the Board of Directors
|
Pursuant to the requirements of the Securities
Act of 1933, as amended, Amendment No. 2 to this Registration Statement on Form N-2 has been signed by the following persons in
the capacities and on the dates indicated.
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/ Barry Sloane
|
|
Chief Executive Officer, President and Chairman of the Board of Directors
|
|
August 31, 2018
|
Barry Sloane
|
|
(Principal Executive Officer)
|
|
|
|
|
|
|
|
/s/ Jennifer Eddelson
|
|
Executive Vice President and Chief Accounting Officer
|
|
August 31, 2018
|
Jennifer Eddelson
|
|
(Principal Financial and Accounting Officer)
|
|
|
|
|
|
|
|
/s/ Richard J. Salute*
|
|
Director
|
|
August 31, 2018
|
Richard J. Salute
|
|
|
|
|
|
|
|
|
|
/s/ Gregory L. Zink*
|
|
Director
|
|
August 31, 2018
|
Gregory L. Zink
|
|
|
|
|
|
|
|
|
|
/s/ Salvatore F. Mulia*
|
|
Director
|
|
August 31, 2018
|
Salvatore F. Mulia
|
|
|
|
|
|
|
|
|
|
/s/ Peter Downs*
|
|
Director
|
|
August 31, 2018
|
Peter Downs
|
|
|
|
|
*
|
Signed by Barry Sloane pursuant to the power of attorney previously filed with this Registration Statement on May 16, 2018.
|
NewtekOne (NASDAQ:NEWT)
Historical Stock Chart
From Aug 2024 to Sep 2024
NewtekOne (NASDAQ:NEWT)
Historical Stock Chart
From Sep 2023 to Sep 2024