As filed with the Securities and Exchange Commission on May 12, 2005
Registration No. 333- 124043
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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NELNET, INC.
(Exact name of registrant as specified in its charter)
___________________
Nebraska 84-0748903
(State or other jurisdiction (I.R.S. Employer Identification Number)
of incorporation or organization)
Terry J. Heimes
Chief Financial Officer
Nelnet, Inc.
121 South 13th Street, Suite 201
121 South 13th Street, Suite 201 Lincoln, Nebraska 68508
Lincoln, Nebraska 68508 Telephone: (402) 458-2303
Telephone: (402) 458-2370 Facsimile: (402) 458-2294
(Address, including zip code, and telephone number, (Name, address, including zip code, and telephone
including area code, of registrant's principal number, including area code, of agent for service)
executive office)
Copies to:
Gerald S. Tanenbaum, Esq. Daniel F. Kaplan, Esq.
Cahill Gordon & Reindel LLP Perry, Guthery, Haase & Gessford, P.C., L.L.O.
80 Pine Street 233 South 13th Street, Suite 1400
New York, New York 10005 Lincoln, Nebraska 68508
Telephone: (212) 701-3000 Telephone: (402) 476-9200
Facsimile: (212) 269-5420 Facsimile: (402) 476-0094
Approximate date of commencement of proposed sale to the public: From time
to time after the registration statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, please check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, as amended, or until this registration statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
Explanatory Note
The sole purpose of this Amendment is to file Exhibits 25.1 and 25.2 and to
amend Exhibits 4.1 and 4.3 to the Registration Statement. Accordingly, this
Amendment consists only of the facing page, this explanatory note and Part II of
the Registration Statement. The Prospectus is unchanged and has been omitted.
PART II INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, incurred in connection with the
distribution of the securities being registered (all amounts are estimated
except the SEC registration fee).
SEC registration fee................................ $ 88,275
Printing and engraving expenses..................... 200,000
Legal fees and expenses............................. 250,000
Rating agency fees.................................. 200,000
Accounting fees and expenses........................ 250,000
Trustees and transfer agents fees................... 100,000
Miscellaneous....................................... 50,000
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Total............................................... $1,138,275*
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* All expenses, except the SEC registration fee, are estimated.
Item 15. Indemnification of Directors and Officers.
Under the Nebraska Business Corporation Act, a Nebraska corporation may
provide indemnification to directors and officers for judgments, fines,
settlements and expenses, including attorney's fees, incurred in connection with
any threatened, pending or completed action, suit or proceeding other than an
action by or in the right of the corporation. This applies to any civil,
criminal, investigative or administrative action provided that the director or
officer involved acted in good faith, in a manner he reasonably believed to be
in or not opposed to the best interests of the corporation and, with respect to
any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The corporation may also provide indemnification to
directors and officers for judgments, fines, settlements and expenses, including
attorney's fees, incurred in connection with any threatened, pending or
completed action or suit by or in the right of the corporation if such director
or officer acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the corporation. However, no
indemnification shall be made in respect of any claim, issue or matter in which
such person is adjudged to be liable for negligence or misconduct in the
performance of his duties to the corporation unless the court in which the
action is brought deems indemnity proper. The grant of indemnification to a
director or officer shall be determined by a majority of a quorum of
disinterested directors, by a written opinion from independent legal counsel or
by the shareholders. Indemnification shall be provided to any directors and
officers for expenses, including attorney's fees, actually and reasonably
incurred in the defense of any action, suit or proceeding to the extent that he
or she has been successful on the merits.
The registrant's amended and restated articles of incorporation provide
that the registrant shall, to the maximum extent and in the manner permitted by
the Nebraska Business Corporation Act, indemnify each of its directors,
officers, employees and agents against expenses, including attorney's fees,
judgments, fines, settlements and other amounts actually and reasonably incurred
in connection with any proceeding arising by reason of the fact that such person
is or was an agent of the registrant. The registrant shall pay expenses incurred
in defending any civil or criminal action or proceeding for which
indemnification is available in advance of the final disposition of such action
or proceeding, following authorization thereof by the board of directors in the
case of an employee or agent, upon receipt of an undertaking by or on behalf of
the indemnified party to repay such amount if it shall be ultimately determined
by final judicial
In addition, the registrant's amended and restated articles of
incorporation provide that the registrant may purchase and maintain insurance on
behalf of any person who is or was an agent of the registrant against any
liability asserted against or incurred by such person in such capacity arising
out of such person's status as such, whether or not the registrant would have
the power to indemnify him or her against such liability under the registrant's
amended and restated articles of incorporation and the Nebraska Business
Corporation Act. The registrant has obtained insurance for the benefit of its
officers and directors insuring such persons against liabilities, including
liabilities under the securities laws.
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The registrant's amended and restated articles of incorporation also limit
the personal liability of the directors and officers of the registrant for
breaches of fiduciary duty to the registrant or its shareholders, except in
certain circumstances including (1) breach of the duty of loyalty to the
registrant or its shareholders, (2) acts or omissions not in good faith or
involving intentional misconduct or a knowing violation of law, (3) acts or
omissions for which the Nebraska Business Corporation Act does not permit
indemnity for directors under Section 21-2018(2)(e) of the Nebraska Business
Corporation Act, which include intentional infliction of harm on the registrant
or its shareholders, voting for or assenting to an unlawful distribution and
intentional violation of criminal law, or (4) any transaction from which the
director derived an improper personal benefit.
Item 16. Exhibits.
See Exhibit Index immediately preceding the Exhibits.
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(a) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(b) 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 the 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% change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
registration statement; and
(c) 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 (1)(a) and (1)(b) do not apply if
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment will be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time will
be deemed to be the initial bona fide offering thereof.
(3) 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.
(4) 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 section 15(d) of the Securities Exchange Act of 1934
that is incorporated by reference in the registration statement will
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time will be deemed to be the initial bona fide offering thereof.
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(5) 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.
(6) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as
part of a registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the registrant pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities Act will be
deemed to be part of this registration statement as of the time it was
declared effective.
(7) For the purposes of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of
prospectus will be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities
at that time will be deemed to be the initial bona fide offering
thereof.
(8) To file an application for the purpose of determining the eligibility
of the trustee to act under subsection (a) of section 310 of the Trust
Indenture Act in accordance with the rules and regulations prescribed
by the SEC under section 305(b)(2) of the Trust Indenture Act.
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 provisions described under Item 15 above, or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 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
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Lincoln, Nebraska on May 12, 2005.
NELNET, INC.
By: /s/ Michael S. Dunlap
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Name: Michael S. Dunlap
Title: Chairman and Co-Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Pre-Effective Amendment No. 1 to the Registration Statement has been signed by
the following persons in the capacities and on the date indicated.
Signature Title Date
--------- ----- ----
Chairman and
/s/ Michael S. Dunlap Co-Chief Executive Officer May 12, 2005
----------------------------------- (Co-Principal Executive Officer)
Michael S. Dunlap
Vice Chairman and Co-Chief
* Executive Officer May 12, 2005
----------------------------------- (Co-Principal Executive Officer)
Stephen F. Butterfield
Chief Financial Officer
* (Principal Financial Officer and Principal May 12, 2005
----------------------------------- Accounting Officer)
Terry J. Heimes
* Director May 12, 2005
-----------------------------------
Don R. Bouc
Director May 12, 2005
-----------------------------------
James P. Abel
* Director May 12, 2005
-----------------------------------
Michael D. Reardon
* Director May 12, 2005
-----------------------------------
Arturo Moreno
* Director May 12, 2005
-----------------------------------
Brian J. O'Connor
* Director May 12, 2005
-----------------------------------
Thomas E. Henning
* Director May 12, 2005
-----------------------------------
James H. VanHorn
* By: /s/ Michael S. Dunlap
-----------------------------
Name: Michael S. Dunlap
Title: Attorney-in-Fact
EXHIBITS
Exhibit
Number Description
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1.1* Form of Underwriting Agreement (Nelnet, Inc. Equity)
1.2* Form of Underwriting Agreement (Nelnet, Inc. Debt)
1.3* Form of Underwriting Agreement (Nelnet, Inc. Stock Purchase Contracts)
1.4* Form of Underwriting Agreement (Nelnet, Inc. Stock Purchase Units)
4.1** Form of Nelnet, Inc. Senior Debt Securities Indenture
4.2* Form of Nelnet, Inc. Senior Debt Security
4.3** Form of Nelnet, Inc. Subordinated Debt Securities Indenture
4.4* Form of Nelnet, Inc. Subordinated Debt Security
4.5* Form of Nelnet, Inc. Standard Stock Warrant Agreement
4.6* Form of Nelnet, Inc. Standard Stock Warrant Certificate
4.7* Form of Standard Stock Purchase Contract Agreement
5.1*** Opinion of Perry, Guthery, Haase & Gessford, P.C., L.L.O. regarding
legality of certain securities being offered
5.2*** Opinion of Cahill Gordon & Reindel LLP regarding legality of certain
securities being offered
12.1*** Statement of Ratio of Earnings to Fixed Charges and Preferred Stock
Dividends
23.1*** Consent of Perry, Guthery, Haase & Gessford, P.C., L.L.O. (included as
part of Exhibit 5.1)
23.2*** Consent of Cahill Gordon & Reindel LLP (included as part of Exhibit 5.2)
23.3*** Consent of KPMG LLP, Independent Registered Public Accounting Firm
24.1*** Powers of Attorney authorizing execution of registration statement on
Form S-3 on behalf of certain directors and officers of Nelnet, Inc.
25.1** Form T-1 Statement of Eligibility of Trustee (Nelnet, Inc. Senior Debt
Securities Indenture)
25.2** Form T-1 Statement of Eligibility of Trustee (Nelnet, Inc. Subordinated
Debt Securities Indenture)
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* To be filed as an amendment to this registration statement or as an exhibit
to an Exchange Act report of the registrant and incorporated herein by
reference.
** Filed herewith.
*** Previously filed.