As filed with the Securities and Exchange Commission on December 15, 2000
Registration No. 333-43550
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 1
ON
FORM S-8
TO
FORM S-4
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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NEWTEK CAPITAL, INC.
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(Exact Name of Registrant as Specified in Its Charter)
NEW YORK 11-3504638
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(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
1500 HEMPSTEAD TURNPIKE
EAST MEADOW, NY 11554
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(Address of Principal Executive Offices)
REXX ENVIRONMENTAL CORPORATION
NON-QUALIFIED STOCK OPTION PLAN
(Full title of the Plan)
BARRY SLOANE
CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER AND SECRETARY
NEWTEK CAPITAL, INC.
1500 HEMPSTEAD TURNPIKE
EAST MEADOW, NY 11554
---------------------
(Name and Address of Agent For Service)
(516) 390-2260
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(Telephone Number, Including Area Code, of Agent for Service)
COPIES TO:
MATTHEW ASH, ESQUIRE
KUTAK ROCK LLP
1101 CONNECTICUT AVENUE, N.W., SUITE 1000
WASHINGTON, D.C. 20036-4374
(202) 828-2400
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=========================================================================================
Title Of Amount Proposed Maximum Proposed Maximum Amount of
Securities To Be Offering Price Aggregate Offering Registration
To Be Registered Registered Per Share Price Fee
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<S> <C> <C> <C> <C>
Common Stock,
$.02 par value 230,000 (1) N/A N/A N/A (2)
=========================================================================================
</TABLE>
(1) This Post-Effective Amendment No. 1 on Form S-8 to Form S-4 covers 230,000
shares of common stock originally registered on the Registration Statement on
Form S-4 to which this Amendment relates. These 230,000 shares of common stock
are issuable pursuant to options granted to certain employees of REXX
Environmental Corporation, formerly Oak Hill Sportswear Corporation, assumed by
the Registrant. See "Purpose of Amendment."
(2) The Registrant previously paid $2,539 upon the initial filing of this
Registration Statement to register 2,699,576 shares of common stock issuable to
the stockholders of REXX Environmental Corporation, including 230,000 shares of
common stock which may be issued pursuant to exercises of the above described
options.
<PAGE>
The purpose of this Post-Effective Amendment No. 1 is to register, on Form
S-8, 230,000 shares of common stock, par value $.02 per share, of the Registrant
previously registered on Form S-4 (Registration No. 333-43550) for issuance upon
the exercise of options granted to certain employees of REXX Environmental
Corporation pursuant to the terms and conditions of the REXX Environmental
Corporation Non-Qualified Stock Option Plan and pursuant to the terms and
conditions of the Agreement and Plan of Merger between the Registrant and REXX
Environmental Corporation, which provided for the acquisition of REXX
Environmental Corporation by the Registrant. The acquisition was consummated on
September 19, 2000.
PART I
INFORMATION REQUIRED IN THE SECTION
10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION*
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ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION*
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*Documents containing the information required by Part I of this
Registration Statement will be sent or given to participants in REXX
Environmental Corporation Non-Qualified Stock Option Plan (the "Plan") in
accordance with Rule 428(b)(1) of the General Rules and Regulations under the
Securities Act of 1933. In accordance with the Note to Part I of Form S-8, such
documents are not filed with the Securities and Exchange Commission ("the
Commission") either as part of this Registration Statement or as prospectuses or
prospectus supplements.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
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Newtek Capital, Inc. (the "Company") is subject to the informational
requirements of the Securities Exchange Act of 1934, as amended (the "1934 Act")
and, accordingly, files periodic reports and other information with the
Commission. Reports, proxy statements and other information concerning the
Company filed with the Commission may be inspected and copies may be obtained
(at prescribed rates) at the Commission's Public Reference Section, Room 1024,
450 Fifth Street, N.W., Washington, D.C. 20549. The Commission also maintains a
Web site that contains reports, proxy and information statements and other
information regarding registrants that file electronically with the Commission,
including the Company. The address for the Commission's Web site is
"http://www.sec.gov".
The following documents are incorporated by reference in this Registration
Statement:
(a) the Company's Registration Statement on Form S-4 dated August 15, 2000
(Commission File No. 333-43550), as amended by the Company's
Prospectus dated August 18, 2000;
(b) Quarterly Report on Form 10-Q for the quarter ended June 30,2000;
(c) Quarterly Report on Form 10-Q for the quarter ended September 30,
2000;
(d) Current Report on Form 8-K dated October 4, 2000;
(e) the description of the Company's securities contained in the Company's
Registration Statement on Form 8-A dated September 18, 2000.
ALL DOCUMENTS FILED BY THE COMPANY PURSUANT TO SECTIONS 13(A), 13(C), 14
AND 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED, PRIOR TO THE
FILING OF A POST-EFFECTIVE AMENDMENT WHICH INDICATES THAT ALL SECURITIES OFFERED
HAVE BEEN SOLD OR WHICH DEREGISTERS ALL SECURITIES THEN REMAINING UNSOLD, SHALL
BE DEEMED TO
<PAGE>
BE INCORPORATED BY REFERENCE IN THIS REGISTRATION STATEMENT, AND TO BE A PART
HEREOF FROM THE DATE OF FILING OF SUCH DOCUMENTS.
ITEM 4. DESCRIPTIONS OF SECURITIES
------
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
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Kutak Rock LLP has given an opinion upon the validity of the securities
being registered. Attorneys in the firm beneficially own 40,000 shares of
Registrant's common stock in the aggregate.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
------
The Company's Restated Articles of Incorporation contain a provision,
authorized by the New York Business Corporation Law ("NBCL"), designed to
eliminate in certain circumstances the personal liability of officers and
directors for monetary damages to Newtek or its stockholders for breach of their
fiduciary duty as officers or directors. This provision, however, does not limit
the liability of any officer or director who breached his or her duty of loyalty
to the Company or its stockholders, acted in bad faith, or whose actions were
the result of active and deliberate dishonesty and were material to the cause of
action to be adjudicated, or that he or she personally gained in fact a
financial profit or other advantage to which he or she was not legally entitled.
This provision will not limit or eliminate the rights of the Company or any
stockholder to seek an injunction or any other nonmonetary relief in the event
of a breach of an officer or director's duty of care. In addition, this
provision applies only to claims against an officer or director arising out of
his or her role as officer or director and does not relieve an officer or
director from liability unrelated to his fiduciary duty of care or from a
violation of statutory law such as certain liabilities imposed on officers and
directors under the federal securities laws.
The Company's Restated Articles of Incorporation and Restated Bylaws also
provide that the Company shall indemnify all directors and officers of the
Company to the full extent permitted by the NBCL. Under the provisions of the
NBCL, any director or officer who, in his or her capacity as such, is made or
threatened to be made a party to any suit or proceeding, may be indemnified if
the Board determines such director or officer acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best
interests of the Company or its stockholders, and in criminal actions or
proceedings, in addition had no reasonable cause to believe that his conduct was
unlawful.
Officers and directors are covered within specified monetary limits by
insurance against certain losses arising from claims made by reason of their
being directors or officers of the Company or of the Company's subsidiaries and
the Company's officers and directors are indemnified against such losses by
reason of their being or having been directors or officers of another
corporation, partnership, joint venture, trust or other enterprise at the
Company's or its subsidiaries' request.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
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Not Applicable.
ITEM 8. EXHIBITS
------
For a list of all exhibits filed or included as part of this Registration
Statement, see "Index to Exhibits" at the end of this Registration Statement.
2
<PAGE>
ITEM 9. UNDERTAKINGS
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1. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising 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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective 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;
provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
(b) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(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.
2. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
3. The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report, to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
4. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is
3
<PAGE>
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
4
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned thereunto duly
authorized, in the City of New York, State of New York, on this 12th day of
December, 2000.
NEWTEK CAPITAL, INC.
By: /s/ Barry Sloane
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Barry Sloane, Chairman of the Board, Chief Executive
Officer, and Secretary(Duly Authorized Representative)
POWER OF ATTORNEY
We, the undersigned directors and officers of the registrant, hereby
severally constitute and appoint Barry Sloane our true and lawful attorney and
agent, to do any and all things in our names in the capacities indicated below
which said person may deem necessary or advisable to enable the registrant to
comply with the Securities Act of 1933, as amended, and any rules, regulations
and requirements of the Securities and Exchange Commission, in connection with
the registration statement on Form S-8 relating to the offering of the
registrant's Common Stock, including specifically, but not limited to, power and
authority to sign for us in our names in the capacities indicated below the
registration statement and any and all amendments (including post-effective
amendments) thereto; and we hereby approve, ratify and confirm all that said
person shall do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
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/s/ Barry Sloane Chairman of the Board and Chief December 12, 2000
---------------------- Executive Officer and Secretary
Barry Sloane
/s/ Jeffrey G. Rubin President, Chief Investment December 12, 2000
---------------------- Officer and Director
Jeffrey G. Rubin
/s/ Brian A. Wasserman Treasurer, Chief Financial December 12, 2000
---------------------- Officer and Director
Brian A. Wasserman
/s/ John Cox
---------------------- Director December 14, 2000
John Cox
/s/ Steven A. Shenfeld
---------------------- Director December 14, 2000
Steven A. Shenfeld
/s/ Matthew Burns
---------------------- Director December 12, 2000
Matthew Burns
5
<PAGE>
INDEX TO EXHIBITS
Exhibit Description
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5 Opinion of Kutak Rock LLP as to the legality of the Common Stock being
registered
23.1 Consent of Kutak Rock LLP (appears in their opinion filed as Exhibit 5)
23.2 Consent of PricewaterhouseCoopers LLP
24 Power of Attorney (contained in the signature page to this registration
statement)
99.1 REXX Stock Option Plan (Oak Hill Sportswear Corporation Non-Qualified
Stock Option Plan)
6
