UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
May
16, 2006
Date
of
Report (date of Earliest Event Reported)
NEWTEK
BUSINESS SERVICES, INC.
(Exact
Name of Company as Specified in its Charter)
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NEW
YORK
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001-16123
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11-3504638
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(State
or Other Jurisdiction of Incorporation or Organization)
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(Commission
File No.)
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(I.R.S.
Employer Identification No.)
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462
Seventh Avenue, 14th
floor,
New York, NY 10018
(Address
of principal executive offices and zip code)
(212)
356-9500
(Company’s
telephone number, including area code)
NEWTEK
CAPITAL, INC.
(Former
name or former address, if changed from last report)
Check
the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
¨ Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
¨ Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
ITEM
3.01 Notice
of Delisting or Failure to Satisfy a Continued Listing Rule or Standard;
Transfer of Listing.
(b) On
May
16, 2006 Newtek Business Services, Inc. (“Newtek”) notified The Nasdaq Stock
Market (“Nasdaq”) that it would be unable to file its Quarterly Report on Form
10-Q for the period ended March 31, 2006 within the time permitted by applicable
law in violation of continued listing requirement in Nasdaq Marketplace Rule
4310(c)(14). On May 17, 2006 a notice of noncompliance with the cited Rule
was
received from Nasdaq. Such notice indicated that the non-timely filing
constituted basis for the delisting of Newtek’s Common Shares on Nasdaq. As
previously disclosed, Newtek received such a notice on April 18, 2006 in
connection with its failure to file timely its Annual Report on Form 10-K and
Newtek has appealed this delisting determination and requested a hearing before
the Nasdaq Listing Qualifications Panel to be held on June 1, 2006. A copy
of
Newtek’s May 16, 2006 letter to Nasdaq and the notice of May 17, 2006 received
from Nasdaq are filed as Exhibit 99.1 to this Form 8-K.
ITEM
4.01 Changes
in Registrant’s Certifying Accountant
(a)(i) On
May
16, 2006 Newtek announced that it had dismissed its independent registered
public accounting firm of PricewaterhouseCoopers, LLP (“PwC”) for its fiscal
year ending December 31, 2006.
(ii) PwC’s
report on Newtek’s financial statements for the years ended December 31, 2004
and 2005 did not contain an adverse opinion or a disclaimer of opinion, nor
were
such opinions qualified or modified as to uncertainty, audit scope or accounting
principle.
(iii) The
decision to dismiss PwC and to retain the services of a new independent
registered public accounting firm was made by unanimous action of Newtek’s Audit
Committee of its Board of Directors acting pursuant to authority delegated
to it
by the Charter previously adopted by the Board of Directors.
(iv) During
the years ended December 31, 2004 and 2005 and through May 16, 2006, there
were
no disagreements with PwC on any matter of accounting principles or practices,
financial statement disclosure or auditing scope or procedure, which
disagreements if not resolved to the satisfaction of PwC would have caused
PwC
to make reference thereto in their reports on the financial statements for
such
years.
(v) During
the years ended December 31, 2004 and 2005 and through May 16, 2006, there
was
one “reportable event” as such term is defined by Item 304(a)(1)(v) of
Regulation S-K promulgated by the Securities and Exchange Commission (“SEC”). As
previously reported in Newtek’s Annual Report on Form 10-K, in Item 9A, as of
December 31, 2005 Newtek did not maintain a sufficient complement of financial
personnel with adequate training and experience in accounting and financial
reporting commensurate with our financial reporting requirements resulting
in a
disclosure control weakness as of that date.
This
control deficiency constituted a material weakness which resulted in audit
adjustments in our accounts within the consolidated financial statements as
finally prepared and audited. Newtek has noted that the material weakness in
disclosure controls related to the non-timely manner in which the disclosure
procedures were implemented and not to any weakness related to the accuracy
of
the financial reports. No restatements of any previously disclosed financial
statements were necessary.
Newtek
has placed significant emphasis on remediation of this disclosure control
weakness and has undertaken to increase the number of qualified staff available
to assist in the assembly and preparation of its financial statements and to
supplement the training of existing personnel. On May 16, 2006 Newtek announced
the hiring of Andrew Lewin, formerly a general counsel of a AMEX listed company,
in the newly created position of Chief Legal Officer to have responsibility
for
the implementation of procedures to assist in the timely completion of our
financial reporting obligations.
Newtek
has requested that PwC furnish it with a letter addressed to the SEC stating
whether or not it agrees with the above statements. A copy of such letter,
dated
May 18, 2006 is filed as Exhibit 16 to this Form 8-K.
(b) On
May
16, 2006 Newtek announced that it has entered into an engagement letter with
the
independent certified public accounting firm of J.H. Cohn, LLP. The J.H. Cohn
firm was not consulted with respect to any of the items specified in Item
304(a)(2)(i) or (ii) of Regulation S-K. A copy of the press release regarding
this announcement is filed as Exhibit 99.2 to this Form 8-K.
ITEM
8.01 Other
Events.
On
May
11, 2006 Newtek Business Services, Inc. issued a press release regarding the
filing of its Annual Report on Form 10-K for the year ended December 31, 2006
and indicated as well that it did not expect to file the Quarterly Report on
Form 10-Q for the March 31, 2006 quarter within the time permitted by applicable
SEC rules. A copy of the press release is filed as Exhibit 99.3 to this Form
8-K.
ITEM
9.01. Financial Statements and Exhibits
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16 |
Letter
of PricewaterhouseCoopers, LLP, May 18,
2006.
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99.1
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Letter
of Newtek Business Services, Inc. to The Nasdaq Stock Market, May
16,
2006; letter of May 17, 2006 from The Nasdaq Stock Market to
Newtek.
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99.2
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Press
Release, Newtek Business Services, Inc. retains J.H. Cohn, LLP, May
16,
2006
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99.3 |
Press
release, Newtek Business Services, Inc. files 10-K, May 11,
2006
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SIGNATURES
In
accordance with the requirements of the Securities Exchange Act of 1934, the
registrant has caused this report to be signed on its behalf by the undersigned,
thereunto duly authorized.
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NEWTEK BUSINESS SERVICES,
INC. |
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| Date:
May 18, 2006 |
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/s/
Barry Sloane |
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Barry
Sloane |
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Chairman
of the Board, Chief Executive Officer,
and
Secretary
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