As filed with the Securities and Exchange Commission on July 3, 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. 1
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. 1 to the Registration Statement on Form N-2 (File No. 333-224976) of Newtek Business Services Corp. 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. 1 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. 1 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. 1 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 | ||
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| 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 | ||
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2. Exhibits
| C-3 |
| C-4 |
| C-5 |
| C-6 |
* Filed herewith.
| C-7 |
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”).
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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 15th 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.
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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. |
| (2) | Not applicable. |
| (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. |
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| (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. |
| (5) | Not Applicable. |
| (6) | Not Applicable. |
| (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. |
| C-11 |
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 July 3, 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. 1 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 | July 3, 2018 | ||
| Barry Sloane | Board of Directors (Principal Executive Officer) | |||
| /s/ Jennifer Eddelson | Executive Vice President and Chief Accounting Officer | July 3, 2018 | ||
| Jennifer Eddelson | (Principal Financial and Accounting Officer) | |||
| /s/ Richard J. Salute* | Director | July 3, 2018 | ||
| Richard J. Salute | ||||
| /s/ Gregory L. Zink* | Director | July 3, 2018 | ||
| Gregory L. Zink | ||||
| /s/ Salvatore F. Mulia* | Director | July 3, 2018 | ||
| Salvatore F. Mulia | ||||
| /s/ Peter Downs* | Director | July 3, 2018 | ||
| Peter Downs |
| * | Signed by Barry Sloane pursuant to the power of attorney previously filed with this Registration Statement on May 16, 2018. |
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Exhibit h.6
Newtek Business Services Corp.
First Supplement to the Amended and Restated Equity Distribution Agreement
Dated as of
July 3, 2018
JMP Securities LLC
600 Montgomery Street
Suite 1100
San Francisco, California 94111
Attention: Equity Securities
Compass Point Research & Trading, LLC
1055 Thomas Jefferson Street NW
Suite 303
Washington, D.C. 20007
Attention: Jody Rosen, General Counsel
Ladenburg Thalmann & Co. Inc.
570 Lexington Avenue
Floor 12
New York, NY
Attention: Equity Securities Desk
D.A. Davidson & Co.
8 Third Street North,
Great Falls, MT 59401
Attention: Equity Syndicate
Ladies and Gentlemen:
Newtek Business Services Corp., a Maryland corporation (the “Company”), and JMP Securities LLC, Compass Point Research & Trading, LLC, Ladenburg Thalmann & Co. Inc., and D.A. Davidson & Co. (each a “Placement Agent,” or collectively “Placement Agents”) hereby agree and confirm that this First Supplement to the Amended and Restated Equity Distribution Agreement (this “First Supplement”) supplements the Amended and Restated Equity Distribution Agreement, dated as of September 6, 2017, by and among the Company and the Placement Agents (the “Amended and Restated Equity Distribution Agreement”), as follows:
1. The fourth full paragraph in Section 1 of the Amended and Restated Equity Distribution Agreement is replaced in its entirety with the following:
The Company has prepared and filed with the Commission a registration statement on Form N-2 (File No. 333-224976), covering the registration of the offering and sale of the Securities (defined below) and certain of the Company’s other securities under the Securities Act of 1933, as amended (including the rules and regulations of the Commission promulgated thereunder, the “Securities Act”), which registration statement has been declared effective by the Commission. Such registration statement, including any post-effective amendments thereto, the exhibits thereto and any schedules thereto, at the time the registration statement or any post-effective amendments thereto became effective, and including any information that is deemed to be part thereof pursuant to Rule 430C of the Securities Act, is herein called the “Initial Registration Statement.” Any registration statement filed pursuant to Rule 462(b) under the Securities Act is herein called the “Rule 462(b) Registration Statement,” and after such filing the term “Registration Statement” (defined below) shall include the Rule 462(b) Registration Statement. The Company also has prepared a prospectus supplement (the “Prospectus Supplement”) specifically relating to the up to 2,900,000 shares of Common Stock (the “Securities”), which Prospectus Supplement supplements the base prospectus, dated June 26, 2018 (the “Base Prospectus”), included as part of the Registration Statement. The Base Prospectus included in the Initial Registration Statement, as it may be supplemented by the Prospectus Supplement, in the form in which such Prospectus Supplement has most recently been filed by the Company with the Commission pursuant to Rule 497 under the Securities Act is herein called the “Prospectus.”
2. The Company and each Placement Agent agree to be bound by and comply with the terms and provisions of the Amended and Restated Equity Distribution Agreement (as amended by paragraph 1 hereof).
3. This First Supplement will inure to the benefit of and be binding upon the parties hereto, and their respective successors, and to the benefit of the employees, officers, and directors and controlling persons referred to in Section 11(a) and Section 11(b) of the Amended and Restate Equity Distribution Agreement, and in each case their respective successors, and personal representatives, and no other person will have any right or obligation hereunder. The term “successors” shall not include any purchaser of the Securities (as defined in the Amended and Restated Equity Distribution Agreement) as such from any of the Placement Agents merely by reason of such purchase.
4. The invalidity or unenforceability of any section, paragraph, or provision of this First Supplement shall not affect the validity or enforceability of any other section, paragraph, or provision hereof or of the Amended and Restated Equity Distribution Agreement. If any section, paragraph, or provision of this First Supplement is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and only such minor changes) as are necessary to make it valid and enforceable.
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5. This First Supplement, and any claim, dispute or action arising out of or relating hereto, shall be governed by and construed in accordance with the internal laws of the State of New York applicable to agreements made and to be performed in such state.
6. This Agreement may be executed in two or more counterparts, each one of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this First Supplement to be executed in their names and on their behalf by and through their duly authorized persons, effective as of the date set forth above.
| NEWTEK BUSINESS SERVICES CORP. | ||
| By: | ||
| Name: | Barry Sloane | |
| Title: | Chief Executive Officer & President | |
| JMP Securities LLC | ||
| By: | ||
| Name: | ||
| Title: | ||
| Compass Point Research & Trading, LLC | ||
| By: | ||
| Name: | ||
| Title: | ||
| Ladenburg Thalmann & Co. Inc. | ||
| By: | ||
| Name: | ||
| Title: | ||
| D.A. Davidson & Co. | ||
| By: | ||
| Name: | ||
| Title: | ||
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