<PAGE>
Registration No. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
__________
NATIONAL EQUIPMENT SERVICES, INC.
(Exact name of registrant as specified in its charter)
Delaware 36-4087016
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
1800 Sherman Avenue
Evanston, Illinois 60201
Telephone: (847) 733-1000
(Address of principal executive offices)
__________
NATIONAL EQUIPMENT SERVICES, INC. 1998 LONG TERM INCENTIVE PLAN
(Full title of the plan)
__________
Paul R. Ingersoll
Vice President
National Equipment Services, Inc.
1800 Sherman Avenue
Evanston, Illinois 60201
Telephone: (847) 733-1000
(Name, address and telephone number of agent for service)
Copy to:
H. Kurt von Moltke
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
Telephone: (312) 861-2000
<TABLE>
<CAPTION>
Calculation of Registration Fee
===================================================================================================
Proposed maximum Proposed maximum Amount of
Title of securities to Amount to be offering price per aggregate offering registration
be registered registered share (1) price (1) fee (1)
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<S> <C> <C> <C> <C>
Common Stock, par 2,200,000 shares $6.19 $13,618,000 $4,018
value $0.01 per share
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</TABLE>
(1) Estimated pursuant to Rule 457(h) solely for the purpose of calculating the
aggregate offering price and the amount of the registration fee based upon
the high and low prices reported for the shares on the New York Stock
Exchange on October 1, 1998.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing information specified in Part I (plan information
and registrant information) will be sent or given to each director, officer and
key employee of National Equipment Services, Inc. (the "Company" or the
"Registrant") selected to participate in the National Equipment Services, Inc.
1998 Long Term Incentive Plan (the "Plan") as specified by Rule 428(b)(1) under
the Securities Act of 1933, as amended (the "Securities Act"). Such documents
need not be filed with the Securities and Exchange Commission (the "Commission")
either as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424 under the Securities Act. These documents and
the documents incorporated by reference in this Registration Statement pursuant
to Item 3 of Part II of this Registration Statement, taken together, constitute
a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents filed by the Registrant with the Commission are
incorporated in and made a part of this Registration Statement by reference, as
of their respective dates:
(a) Prospectus dated September 16, 1998 filed pursuant to Rule
424(b)(3) (File No. 333-43553).
(b) Quarterly Report on Form 10-Q for the quarterly period ended June
30, 1998.
(c) Current Report on Form 8-K dated September 17, 1998.
(d) The description of the Registrant's common stock under the caption
"Item 1. Description of Registrant's Securities to be Registered" contained
in the Registrant's Registration Statement on Form 8-A (File No. 001-14163)
filed with the Commission on May 26, 1998 pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), including any
amendments or reports filed for the purpose of updating such descriptions.
(e) All reports and other documents filed by the Registrant pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, subsequent to
the date of this Registration Statement and prior to the filing of a post-
effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference herein and to be a part hereof
from the date of filing of such reports and documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is
incorporated or deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
Item 4. Description of Securities.
Not applicable.
<PAGE>
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Company is incorporated under the laws of the State of Delaware.
Section 145 of the General Corporation Law of the State of Delaware ("Section
145") provides that a Delaware corporation may indemnify any persons who are, or
are threatened to be made, parties to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of such corporation), by
reason of the fact that such person is or was an officer, director, employee or
agent of such corporation, or is or was serving at the request of such
corporation as a director, officer, employee or agent of another corporation or
enterprise. The indemnity may include expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with such action, suit or proceeding, provided such
person acted in good faith and in a manner he reasonably believed to be in or
not opposed to the corporation's best interests and, with respect to any
criminal action or proceeding, had no reasonable cause to believe that his
conduct was illegal. A Delaware corporation may indemnify any persons who are,
or are threatened to be made, a party to any threatened, pending or completed
action or suit by or in the right of the corporation by reason of the fact that
such person was a director, officer, employee or agent of such corporation, or
is or was serving at the request of such corporation as a director, officer,
employee or agent of another corporation or enterprise. The indemnity may
include expenses (including attorney's fees) actually and reasonably incurred by
such person in connection with the defense or settlement of such action or suit,
provided such person acted in good faith and in a manner he reasonably believed
to be in or not opposed to the corporation's best interests except that no
indemnification is permitted without judicial approval if the officer or
director is adjudged to be liable to the corporation. Where an officer or
director is successful on the merits or otherwise in the defense of any action
referred to above, the corporation must indemnify him against the expenses which
such officer or director has actually and reasonably incurred.
Section 145 further provides that the indemnification provisions of Section
145 shall not be deemed exclusive of any other rights to which those seeking
indemnification may be entitled under any bylaw, agreement, vote of stockholders
or disinterested directors or otherwise, both as to action in such person's
official capacity and as to action in another capacity while holding such
office. The certificate of incorporation of the Company provides that, to the
fullest extent permitted by the General Corporation Law of the State of
Delaware, no director of the corporation shall be liable to the corporation or
its stockholders for monetary damages arising from a breach of fiduciary duty
owed to the corporation or its stockholders.
Article V of the by-laws of the Company provides that any person who was or
is a party or is threatened to be made a party to or is involved in any action,
suit or proceeding, whether civil, criminal, administrative or investigative by
reason of the fact that he or she, or a person of whom he or she is the legal
representative, is or was a director or officer of such corporation, or is or
was serving at the request of such corporation as a director, officer, employee,
fiduciary or agent of another corporation or of a partnership, joint venture,
trust or other enterprise, shall be indemnified and held harmless by the
corporation to the fullest extent to which it is empowered to do so unless
prohibited from doing so by the General Corporation Law of the State of
Delaware, as may be amended (but only to the extent such amendment permits the
corporation to provide broader indemnification rights than were permitted prior
to such amendment) against expense, liability and loss (including attorneys'
fees actually and reasonably incurred by such person in connection with such
proceeding) and such indemnification shall continue as to an indemnitee who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the indemnitee's heirs, executors and administrators, provided that,
such person shall be indemnified only (subject to certain limited exceptions) in
connection with a proceeding initiated by such person only if such proceeding
was authorized by the board of directors of the corporation. The right to
indemnification of such person shall be a contract right and shall include the
right to be paid expenses incurred in defending any proceeding in advance of its
final disposition.
Section 145 further authorizes a corporation to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation or enterprise,
against any liability asserted against him or her and incurred by him or her in
any such capacity, arising out of his or her status as such, whether or not the
corporation would otherwise have the power to indemnify him or her under Section
145.
2
<PAGE>
Article V further provides that the Company may purchase and maintain
insurance on its own behalf and on behalf of any person who is or was a
director, officer, employee, fiduciary, or agent of the Company or was serving
at the request of the Company as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against him or her and incurred by him or her in
any such capacity, whether or not the Company would have the power to indemnify
such person against such liability under Article V. All of the directors and
officers of the Company are covered by insurance policies maintained and held in
effect by the Company against certain liabilities for actions taken in such
capacities, including liabilities under the Securities Act of 1933.
The Company has agreed to indemnity and hold harmless Mr. Grove against all
expense, liability and loss reasonably incurred or suffered by Mr. Grove in
connection with any allegation that his membership on the Board conflicts with
or breaches the terms of a noncompetition covenant to which Mr. Grove is a
party.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The Exhibits to this Registration Statement are listed in the Exhibit Index
of this Registration Statement, which Exhibit Index is incorporated herein by
reference.
Item 9. Undertakings.
(a) 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:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act;
(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% change in the maximum aggregate ofering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement;
(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 the undertakings set forth in paragraphs (i) and
(ii) above do not apply if the Registration Statement is on Form S-3 or
Form S-8 and 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 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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.
(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.
3
<PAGE>
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of any employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the Registration Statement shall be deemed to be a new registration
statement relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act 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 against public policy as expressed in the Securities 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 Securities Act and will be governed by the final
adjudication of such issue.
4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Evanston, State of Illinois, on October 6, 1998.
NATIONAL EQUIPMENT SERVICES, INC.
/s/ Dennis O'Connor
By:____________________________________
Name: Dennis O'Connor
Title: Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints each of Kevin Rodgers, Dennis O'Connor and Paul
Ingersoll his true and lawful attorney-in-fact, each with full power of
substitution and revocation, for him and in his name, place and stead, in any
and all capacities (including his capacity as a director and/or officer of
National Equipment Services, Inc.), to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto each such attorney-in-fact and
agent, full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as such
person might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement and Power of Attorney have been signed on October 6,
1998, by the following persons in the capacities indicated.
<TABLE>
<CAPTION>
Signature Capacity
--------- --------
<S> <C>
/s/ Kevin Rodgers
- ---------------------- Chief Executive Officer and
Kevin Rodgers Director (principal executive officer)
/s/ Dennis O'Connor
- ---------------------- Chief Financial Officer
Dennis O'Connor (principal financial and accounting officer)
/s/ Carl Thoma
- ---------------------- Chairman of the Board
Carl Thoma
/s/ William Kessinger
- ---------------------- Director
William Kessinger
/s/ John Grove
- ---------------------- Director
John Grove
/s/ Ronald St. Clair
- ---------------------- Director
Ronald St. Clair
</TABLE>
5
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------- -----------
<C> <S> <C>
4.1 Form of certificate representing shares of Common Stock of the (1)
Company.
4.2 Restated Certificate of Incorporation of the Company. (1)
4.3 Restated By-laws of the Company. (1)
4.4 National Equipment Services, Inc. 1998 Long Term Incentive Plan. (1)
5.1 Opinion of Kirkland & Ellis.
23.1 Consent of Kirkland & Ellis (included in Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP.
Registration Statement).
24.1 Powers of Attorney (included on the signature page of this
Registration Statement)
</TABLE>
- -------------------------------
(1) Incorporated by reference to the Company's Registration Statement on Form
S-1 (File No. 333-49223).
6
<PAGE>
Exhibit 5.1
-----------
KIRKLAND & ELLIS
Partnerships Including Professional Corporations
200 East Randolph Drive
Chicago, Illinois 60601
312 861-2000
To Call Writer Direct: Facsimile:
312 861-2000 312 861-2200
October 6, 1998
National Equipment Services, Inc.
1800 Sherman Avenue
Evanston, Illinois 60201
Re: National Equipment Services, Inc.
Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
We have acted as special counsel to National Equipment Services, Inc.
(the "Company") in connection with the proposed registration by the Company of
up to 2,200,000 shares of the Company's common stock, par value $.01 per share
(the "Common Stock"), issuable upon exercise of stock options granted under the
National Equipment Services, Inc. 1998 Long Term Incentive Plan (the "Plan"),
pursuant to a Registration Statement on Form S-8 filed with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Act") (such Registration Statement, as amended or supplemented, is
hereinafter referred to as the "Registration Statement").
The opinions contained in this letter (herein called "our opinions")
are based exclusively upon the General Corporation Law of the State of Delaware,
as now constituted. We express no opinion as to the applicability of,
compliance with, or effect of any other law or governmental requirement with
respect to the Company. For purposes of our opinions we have assumed without
independent investigation that factual information supplied to us for purposes
of our opinions is complete and accurate.
Based upon and subject to the foregoing, we hereby advise you that in
our opinion:
(1) The Company is a corporation existing and in good standing under
the General Corporation Law of the State of Delaware.
(2) Each share of Common Stock registered under the Registration
Statement and issuable under the Plan, when issued as authorized by the
Company upon payment of the
<PAGE>
National Equipment Services, Inc.
October 6, 1998
Page 2
consideration to be paid therefor (in an amount at least equal to the par
value of the related shares), will be validly issued, fully paid and non-
assessable.
For purposes of this letter we have relied without any independent
verification upon (i) information contained in one or more certificates provided
by the Secretary of State of the State of Delaware and (ii) factual information
supplied to us by the Company. We have assumed without investigation that there
has been no relevant change or development between the dates as of which the
information cited in the preceding sentence was given and the date of this
letter and that the information upon which we have relied is accurate and does
not omit disclosures necessary to prevent such information from being
misleading. For purposes of the opinion in numbered paragraph 1, we have relied
exclusively upon a certificate issued by the Secretary of State of the State of
Delaware, and such opinion is not intended to provide any conclusion or
assurance beyond that conveyed by that certificate.
We hereby consent to the filing of this opinion with the Commission as
Exhibit 5.1 to the Registration Statement. We also consent to the reference to
our firm under the heading "Legal Matters" in the related Prospectus. In giving
this consent, we do not thereby admit that we are in the category of persons
whose consent is required under Section 7 of the Act or the rules and
regulations of the Commission thereunder.
We do not find it necessary for the purposes of this opinion, and
accordingly we do not purport to cover herein, the application of the securities
or "Blue Sky" laws of the various states to the issuance and sale of each share
of Common Stock registered under the Registration Statement.
This opinion is limited to the specific issues addressed herein, and
no opinion may be inferred or implied beyond that expressly stated herein. We
assume no obligation to revise or supplement this opinion should the present
laws of the State of Delaware be changed by legislative action, judicial
decision or otherwise.
Sincerely,
/s/ Kirkland & Ellis
Kirkland & Ellis
<PAGE>
Exhibit 23.2
------------
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 and the related Prospectus of our report dated April 1,
1998, except for the information in Note 13 as to which the date is September 8,
1998, relating to the financial statements of National Equipment Services, Inc.
and Subsidiaries, which report appears in the Prospectus of National Equipment
Services, Inc. dated September 16, 1998 and filed with the Securities and
Exchange Commission pursuant to Rule 424(b)(3).
/s/ PricewaterhouseCoopers
Chicago, Illinois
October 5, 1998
