SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):September 12, 2002
Newtek Capital, Inc.
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(Exact Name of Registrant as Specified in Charter)
New York 001-16123 11-3504638
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(State or Other Jurisdiction (Commission (I.R.S. Employer
of Incorporation) File Number) Identification No.)
100 Quentin Roosevelt Blvd., Garden City, New York 11554
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (516) 390-2260
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FORWARD-LOOKING STATEMENTS
This Form 8-K contains "forward-looking statements" within the meaning
of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the
Securities Exchange Act of 1934, as amended, which are intended to be covered by
the safe harbors created thereby. The words "believe," "will be able,"
"anticipate," "estimate," "should," "will," "expect," "continue," "intend" or
similar words are intended to identify forward-looking statements. Such
statements involve risks and uncertainties that exist in the Company's
operations and business environment that could render actual outcomes and
results materially different than predicted. The Company's forward-looking
statements are based on assumptions about many factors, including, but not
limited to: changes in interest rates or the general economy of the markets in
which the Company operates; economic, technological or regulatory changes
affecting the businesses conducted and to be conducted by the Company; the
Company's ability to employ and retain qualified employees; changes in
government regulations that are applicable to the Company's regulated small
business lending; management businesses; the Company's ability to identify and
complete
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acquisitions and successfully integrate the businesses it acquires; changes in
the demand for the Company's services; the degree and nature of the Company's
competition; and general volatility of the capital markets and the market price
of the Company's common stock. While the Company believes that its assumptions
are reasonable at the time forward-looking statements were made, it cautions
that it is impossible to predict the actual outcome of numerous factors and,
therefore, readers should not place undue reliance on such statements.
Forward-looking statements speak only as of the date they are made and the
Company undertakes no obligation to update such statements in light of new
information or otherwise.
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
On August 8, 2002 the Company signed an agreement to acquire Comcap
Holding Corp. and its wholly-owned subsidiary, Commercial Capital Corporation
("Commercial Capital") (collectively "Comcap") in exchange for up to 463,450
shares of its common stock (380,471 shares currently, 82,980 contingently upon
achieving certain milestones). The purchase is subject to a number of conditions
including the approval of the U.S. Small Business Administration for the change
in ownership of Commercial Capital.
If the transaction is completed, the business of Comcap will be
combined with a start up business recently funded by one of the Company's Capcos
and owned and managed by two individuals with combined experience of over 50
years in the small business loan industry. The Chief Executive Officer will be
John R. Cox, formerly Deputy Administrator of the SBA who will resign his
position as a director of the Company in order to participate in this
transaction.
A copy of this Agreement is attached hereto as Exhibit 2.1. The
foregoing description of the transaction is qualified in its entirety by
reference to the full text of the Agreement, which is incorporated herein by
reference.
Commercial Capital was organized in 1994 and grew to be the 15/th/
largest originator of SBA guaranteed loans in 2000 with license to operate
nationwide as a participant in the SBA's "preferred lender program."
Set forth as Exhibit 99.4, and incorporated herein, is an unaudited pro
forma condensed consolidated balance sheet for the Company as of June 30, 2002,
assuming the Company acquired Comcap on that date, and unaudited pro forma
condensed consolidated statements of operations for the Company for the year
ended December 31, 2001 and the six-month period ended June 30, 2002, assuming
the Company acquired Comcap on January 1, 2001, and also including certain
assumptions in connection with the transaction. For example, the actions of
holders of rights to "put" their stock to Comcap, the actions of Commercial
Capital's warehouse lenders, and similar factors as noted in the notes
accompanying the unaudited condensed consolidated financial information.
However, not included in the unaudited pro forma condensed consolidated
financial information are any effects which the Company expects would have
occurred in Comcap's business had it had the benefit of the loan restructuring,
new management, additional capital and additional business generation that the
Company's business model is expected to provide. Nor does the unaudited pro
forma condensed consolidated financial information reflect the
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resumption of normal business operations which would result from the
transaction, as Comcap has suspended virtually all new business operations since
early in 2001.
ITEM 7. FINANCIAL STATEMENTS, PROFORMA FINANCIAL INFORMATION AND EXHIBITS
(a) Consolidated Financial Statements of Business to be Acquired
The audited consolidated financial statements of Comcap Holding Corp.
and its subsidiaries as of and for the years ended December 31, 2001
and 2000, appear as Exhibit 99.1 to this Form 8-K and are incorporated
herein by reference.
Comcap Holding Corp.'s consolidated financial statements as of and for
the year ended December 31, 2000 included in this Form 8-K have been
audited by Arthur Andersen LLP, independent public accountants ("Arthur
Andersen"), in reliance upon the authority of that firm as experts in
accounting and auditing in giving said reports. We have not been able
to obtain, after reasonable efforts, the written consent of Arthur
Andersen to our naming the firm in this Form 8-K, to the inclusion of
their reports in this form 8-K or to the incorporation by reference of
their reports in our registration statements on Form S-3 (Nos.
333-63364, 333-43550, and 333-66128) and we have not included Arthur
Andersen's consent herein.
(b) Unaudited Pro Forma Condensed Consolidated Financial
Information
The unaudited pro forma condensed consolidated financial information
set forth herein gives effect to the pending acquisition of Comcap by
the Company.
The unaudited pro forma condensed consolidated financial information as
of June 30, 2002 and for the year ended December 31, 2001 and the
six-month period ended June 30, 2002 appear as Exhibit 99.4 to this
Form 8-K and are incorporated herein by reference.
(c) Exhibits
EXHIBIT NUMBER DESCRIPTION
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2.1 Agreement and Plan of Merger, dated August 8,
2002, among Newtek Capital, Inc., Wilshire New
York Partners III, L.L.C., Comcap Holding Corp.,
Charles Freeman and Craig Reynolds, the Majority
Stockholders of Comcap Holding Corp. and The Green
Family Entities, and to be joined by SBA Holdings,
Inc.
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99.1. Audited consolidated financial statements of
Comcap Holding Corp. and its subsidiaries, as of
and for the year ended December 31, 2001
99.2 Audited consolidated financial statements of
Comcap Holding Corp. and its subsidiaries, as of
and for the years ended December 31, 2000 and
December 31, 1999.
99.3 Unaudited condensed consolidated balance sheet of
Comcap Holding Corp. and its subsidiaries as of
June 30, 2002 and the unaudited condensed
consolidating statements of operations and cash
flows for each of the six-month periods ended June
30, 2002 and June 30, 2001.
99.4 Unaudited condensed consolidated pro forma
financial information for the year ended December
31, 2001, and as of and for the six-month period
ended June 30, 2002.
99.5 Press Release of the Registrant, dated
September 10, 2002.
ITEM 9. REGULATION FD DISCLOSURE
The Company incorporates by reference into this Item 9 the information
in its Press Release attached hereto as Exhibit 99.4. The information in this
Item 9, including the Press Release, is being furnished, not filed, pursuant to
Regulation FD. Accordingly, the information in Item 9 of this Form 8-K will not
be incorporated by reference into any registration statement filed by the
Company under the Securities Act of 1933, as amended, unless specifically
identified therein as being incorporated by reference. The furnishing of the
information in this Form 8-K is not intended to, and does not, constitute a
determination or admission by the Company that the information in this Form 8-K
is material or complete, or that investors should consider this information
before making an investment decision with respect to any security of the
Company.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the registrant has duly caused this report to be signed on its behalf
by the undersigned thereunto duly authorized.
Date: September 30, 2002
NEWTEK CAPITAL, INC.
By: /s/ Barry Sloane
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Name: Barry Sloane
Title: Chairman of the Board, Chief Executive
Officer, and Secretary
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EXHIBIT INDEX
EXHIBIT NUMBER DESCRIPTION
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2.1 Agreement and Plan of Merger, dated August 8,
2002, among Newtek Capital, Inc., Wilshire New
York Partners III, L.L.C., Comcap Holding Corp.,
Charles Freeman and Craig Reynolds, the Majority
Stockholders of Comcap Holding Corp. and The Green
Family Entities, and to be joined by SBA Holdings,
Inc.
99.1 Audited consolidated financial statements of
Comcap Holding Corp. and its subsidiaries, as of
and for the years ended December 31, 2001.
99.2 Audited consolidated financial statements of
Comcap Holding Corp. and its subsidiaries, as of
and for the years ended December 31, 2000 and
December 31, 1999.
99.3 Unaudited condensed consolidated balance
sheet of Comcap Holding Corp. and its subsidiaries
as of June 30, 2002 and the unaudited condensed
consolidating statements of operations and cash
flows for each of the six-month periods ended June
30, 2002 and June 30, 2001.
99.4 Unaudited Condensed Consolidated pro forma
financial information for the year ended December
31, 2001, and as of and for the six-month period
ended June 30, 2002.
99.5 Press Release of the Registrant, dated
September 8, 2002.
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