As filed with the Securities and Exchange Commission on July 20, 1999
Registration No. 333-_____
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
----------------------------
NEFF CORP.
(Exact name of Registrant as specified in its charter)
Delaware 7353 65-0626400
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
3750 N.W. 87th Avenue
Miami, Florida 33178
(305) 513-3350
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
Neff Corp. 1998 Stock Incentive Plan
(Full title of the plan)
Neff Corp. 1999 Stock Incentive Plan
(Full title of the plan)
Kevin P. Fitzgerald, President and Chief Executive Officer
Neff Corp.
3750 N.W. 87th Avenue
Miami, Florida 33178
(305) 513-3350
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
-------------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum
Title of Each Class of Securities Amount to be Offering Price Aggregate Offering Amount of
to be Registered Registered(1) per Share(2) Price(1) Registration Fee(3)
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1998 Stock Incentive Plan, 73,775(5) $14.66 $1,081,542 $319.05
Class A Common Stock, $.01 par
value and Preferred Share
Purchase Rights(4)
1998 Stock Incentive Plan, 371,225(6) $14.00 $5,197,150 $1,534
Class A Common Stock, $.01 par
value and Preferred Share
Purchase Rights(4)
1998 Stock Incentive Plan, 3,000(7) $9.75 $29,250 $9
Class A Common Stock, $.01
par value and Preferred Share
Purchase Rights(4)
<PAGE>
1998 Stock Incentive Plan, 1,000(8) $7.88 $7,880 $3
Class A Common Stock, $.01
par value and Preferred Share
Purchase Rights(4)
1998 Stock Incentive Plan, 531,000(9) $6.19 $3,286,890 $970
Class A Common Stock, $.01
par value and Preferred Share
Purchase Rights(4)
1998 Stock Incentive Plan, 20,000(10) $6.00 $120,000 $35.40
Class A Common Stock, $.01
par value and Preferred Share
Purchase Rights(4)
1999 Stock Incentive Plan, 1,000,000(5) $14.66 $14,660,000 $4,324.70
Class A Common Stock, $.01 par
value and Preferred Share Purchase
Rights(4)
- ----------------------------------------------------------------------------------------------------------------
Total 2,000,000
- ----------------------------------------------------------------------------------------------------------------
</TABLE>
(1) The number of shares of Class A Common Stock, par value $.01 per share (the
"Common Stock") stated above consists of the aggregate number of shares
which may be sold upon the exercise of options which have been granted
and/or may hereafter be granted under the Neff Corp. 1998 Stock Incentive
Plan or the Neff Corp. 1999 Stock Incentive Plan (the "Plans"), plus such
indeterminate number of shares as may be issued under the Plans to prevent
dilution resulting from stock splits, stock dividends or similar
transactions in accordance with Rule 416 under the Securities Act of 1933.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(f) under the Securities Act of 1933 as follows: (i) in
the case of shares of Common Stock which may be purchased upon exercise of
outstanding options, the fee is calculated on the basis of the price at
which the options may be exercised; and (ii) in the case of shares of
Common Stock for which options have not yet been granted and the option
price of which is therefore unknown, the fee is calculated on the basis of
the average of the high and low sale prices per share of the Common Stock
on the New York Stock Exchange ("NYSE") as of a date (July 14, 1999) within
5 business days prior to the filing of this Registration Statement.
(3) The Registration Fee is calculated by multiplying the product of the
exercise price per share and the number of shares subject to option at such
exercise price, by .000295.
(4) The Preferred Share Purchase Rights, which are attached to the shares of
Class A Common Stock being registered, will be issued for no additional
consideration; no additional registration fee is required.
(5) Consists of shares of Class A Common Stock with respect to which options
have not yet been granted.
(6) Consists of shares of Class A Common Stock with respect to which options
have been granted under stock option agreements under the Neff 1998 Stock
Incentive Plan at an exercise price of $14.00.
(7) Consists of shares of Class A Common Stock with respect to which options
have been granted under stock option agreements under the Neff 1998 Stock
Incentive Plan at an exercise price of $9.75.
(8) Consists of shares of Class A Common Stock with respect to which options
have been granted under stock option agreements under the Neff 1998 Stock
Incentive Plan at an exercise price of $7.88.
(9) Consists of shares of Class A Common Stock with respect to which options
have been granted under stock option agreements under the Neff 1998 Stock
Incentive Plan at an exercise price of $6.19.
(10) Consists of shares of Class A Common Stock with respect to which options
have been granted under stock option agreements under the Neff 1998 Stock
Incentive Plan at an exercise price of $6.00.
2
<PAGE>
EXPLANATORY NOTE
In accordance with the Note to Part I of Form S-8, the information
specified by Part I has been omitted from this Registration Statement.
3
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed by the Company with the Securities
and Exchange Commission (the "Commission") are incorporated by reference in this
Registration Statement:
1. The Company's Report on Form 10-K for the fiscal year ended December 31,
1998 filed on March 22, 1999.
2. The Company's Report on Form 10-Q for the fiscal quarter ended March 31,
1999, filed on May 6, 1999.
4. The description of the Common Stock contained in the Company's
Registration Statement No. 333-48077 on Form S-1 filed March 17, 1998, as
amended, including any amendment or report filed for the purpose of updating
such description.
In addition, all documents subsequently filed by the Company pursuant to
Section 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") 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 be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such 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 or is
deemed to be incorporated by reference 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.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Company's Certificate of Incorporation provides that the Company shall
indemnify to the fullest extent authorized by the Delaware General Corporation
Law (the "DGCL"), each person who is involved in any litigation or other
proceeding because such person is or was a director or officer of the Company,
against all expense, loss or liability reasonably incurred or suffered in
connection therewith. The Company's Certificate of Incorporation provides that a
director or officer may be paid expenses incurred in defending any proceeding in
advance of its final disposition upon receipt by the Company of an undertaking,
by or on behalf of the director or officer, to repay all amounts so advanced if
it is ultimately determined that such director or officer is not entitled to
indemnification.
Section 145 of the DGCL permits a corporation to indemnify any director or
officer of the corporation against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
in connection with any action, suit or proceeding brought by reason of the fact
that such person is or was a director or officer of the corporation, if such
person acted in good faith and in a manner that 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, if he had no reason to believe his conduct
was unlawful. In a derivative action, (i.e., one brought by or on behalf of the
4
<PAGE>
corporation), indemnification may be made only for expenses, actually and
reasonably incurred by any director or officer in connection with the defense or
settlement of such an action or suit, if such person acted in good faith and in
a manner that he reasonably believed to be in or not opposed to the best
interests of the corporation, except that no indemnification shall be made if
such person shall have been adjudged to be liable to the corporation, unless and
only to the extent that the court in which the action or suit was brought shall
determine that the defendant is fairly and reasonably entitled to indemnity for
such expenses despite such adjudication of liability.
Pursuant to Section 102(b)(7) of the DGCL, the Company's Certificate of
Incorporation eliminates the liability of a director to the corporation or its
stockholders for monetary damages for such breach of fiduciary duty as a
director, except for liabilities arising (i) from any breach of the director's
duty of loyalty to the corporation or its stockholders; (ii) from acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law; (iii) under Section 174 of the DGCL; or (iv) from any
transaction from which the director derived an improper personal benefit.
The Company has obtained primary and excess insurance policies insuring the
directors and officers of the Company and its subsidiaries against certain
liabilities they may incur in their capacity as directors and officers. Under
such policies, the insurer, on behalf of the Company, may also pay amounts for
which the Company has granted indemnification to the directors or officers.
Additionally, reference is made to the Registration Rights Agreement filed
as Exhibit 1.1 hereto, which provides for indemnification by the Participants
(as defined in the Registration Rights Agreement) of the Company, its directors
and officers who sign the Registration Statement and persons who control the
Company, under certain circumstances.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following documents are filed as exhibits to this registration
statement:
Exhibit Description
3.1 Certificate of Incorporation of the Company, as amended and restated, filed
as Exhibit 3.1 to the Company's Registration Statement on Form S-4
(Registration No. 333-59313), dated July 17, 1998, incorporated herein by
reference.
3.2 By-Laws of the Company, as amended and restated, filed as Exhibit 3.1 to
the Company's Registration Statement on Form S-4 (Registration No.
333-59313), dated July 17, 1998, incorporated herein by reference.
4.1 Form of Certificate of Class A Common Stock, filed as Exhibit 4.1 to the
Company's Registration Statement on Form S-1 (Registration No. 333-48077),
dated March 17, 1998, incorporated herein by reference.
4.2 Registration Rights Agreement, by and between Neff Corp. and GECFS, Inc.,
dated as of March 25, 1998, filed as Exhibit 4.2 to the Company's
Registration Statement on Form S-1 (Registration No. 333-48077), dated
March 17, 1998, incorporated herein by reference.
4.3 Registration Rights Agreement, by and between Neff Corp. and Santos Fund I,
L.R, dated as of March 25, 1998, filed as Exhibit 4.3 to the Company's
Registration Statement on Form S-1 (Registration No. 333-48077), dated
March 17, 1998, incorporated herein by reference.
4.4 Registration Rights Agreement, by and between Neff Corp. and Santos Capitol
Advisors, Inc., dated as of March 25, 1998, filed as Exhibit 4.4 to the
Company's Registration Statement on Form S-1 (Registration No. 333-48077),
dated March 17, 1998, incorporated herein by reference.
5
<PAGE>
4.5 Amended and Restated Stockholders' Agreement by and among Jorge Mas, Juan
Carlos Mas, Jose Ramon Mas, General Electric Capital Corporation, GECFS,
Inc., Kevin P Fitzgerald, Santos Fund I, L.P, Santos Capital Advisors, Inc.
and Neff Corp., dated as of March 25, 1998, filed as Exhibit 4.5 to the
Company's Registration Statement on Form S-1 (Registration No. 333-48077),
dated March 17, 1998, incorporated herein by reference.
4.6 Form of Rights Agreement, filed as Exhibit 10.13 to the Company's
Registration Statement on Form S-1 (Registration No. 333-48077), dated
March 17, 1998, incorporated herein by reference.
5.1 Opinion of Fried, Frank, Harris, Shriver & Jacobson.
23.1 Consent of Deloitte & Touche, LLP
23.2 Consent of Fried, Frank, Harris, Shriver & Jacobson (included in Exhibit
5.1 above).
24.1 Power of Attorney (included on Signature Page of this Registration
Statement).
99.1 Neff Corp. 1998 Incentive Stock Plan, filed as Exhibit 10.10 to the
Company's Registration Statement on Form S-1 (Registration No. 333-48077),
dated March 17, 1998, incorporated herein by reference.
99.2 Neff Corp. 1999 Incentive Stock Plan, filed as Exhibit 99.1 to the
Company's Definitive Proxy Statement, Schedule 14A, dated April 16, 1999,
incorporated herein by reference.
- ----------
Item 9. 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:
(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; 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 (1)(i) and (1)(ii) 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 Company pursuant to
Section 13 of the Exchange Act that are incorporated by reference into 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.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual reports pursuant to section 13(a) or section 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.
6
<PAGE>
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 SEC such indemnification is 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.
7
<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 Miami, State of Florida, on July 19, 1999.
NEFF CORP.
By: /s/ Kevin P. Fitzgerald
---------------------------
Kevin P. Fitzgerald
Chief Executive Officer
The undersigned directors and officers of Neff Corp. hereby constitute and
appoint Kevin P. Fitzgerald and Mark Irion and each of them with full power to
act without the other and with full power of substitution and resubstitution,
our true and lawful attorneys-in-fact with full power to execute any and all
amendments thereto and to file the same, with all exhibits thereto and other
documents in connection therewith, with the SEC and hereby ratify and confirm
that all such attorneys-in-fact, or any of them, or their substitutes shall
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
Signature Title Date
/s/ JORGE MAS
- -------------
Jorge Mas Chairman of the Board July 19, 1999
/s/ KEVIN P. FITZGERALD Director, President and
- ---------------------- Chief Executive Officer
Kevin P. Fitzgerald (Principal Executive Offered) July 19, 1999
/s/ JOSE RAMON MAS
- ------------------
Jose Ramon Mas Director July 19, 1999
/s/ ARTHUR B. LAFFER
- --------------------
Arthur B. Laffer Director July 19, 1999
/s/ JOEL-TOMAS CITRON
- ---------------------
Joel-Tomas Citron Director July 19, 1999
/s/ MARK H. IRION Chief Financial Officer
- ----------------- Principal Financial Officer
Mark H. Irion and Accounting Officer) July 19, 1999
8
Exhibit 5.1
July 16, 1999
Neff Corp.
3750 NW 87th Avenue
Suite 400
Miami, Florida 33178
Ladies and Gentlemen:
We have acted as special counsel for Neff Corp., a Delaware corporation
(the "Company"), in connection with the registration, pursuant to a Registration
Statement on Form S-8 (the "Registration Statement") of 2,000,000 shares of the
Company's Class A Common Stock, par value $0.01 per share ("Common Stock")
issuable upon exercise of options or awards which have been or may be granted
under the Company's 1999 Stock Incentive Plan (the "1999 Plan") and the
Company's 1998 Stock Incentive Plan, (the "1998 Plan," and together with the
1999 Plan, the "Plans"). All assumptions and statements of reliance herein have
been made without any independent investigation or verification on our part
except to the extent otherwise expressly stated, and we express no opinion with
respect to the subject matter or accuracy or such assumptions or items relied
upon.
On May 24, 1999, the Company's shareholders approved the 1999 Plan, which
had been adopted by the Company's Board of Directors as of April 6, 1999. On May
20, 1998, the Company's shareholders approved the 1998 Plan, which had also been
adopted by the Company's Board of Directors on May 20, 1998.
This opinion is delivered to you pursuant to Item 601(b)(5) of Regulation
S-K under the Securities Act of 1933, as amended. All assumptions and statements
of reliance herein have been made without any independent investigation or
verification on our part except to the extent otherwise expressly stated, and we
express no opinion with respect to the subject matter or accuracy of such
assumption or items relied upon.
In connection with this opinion, we have (i) investigated such questions of
law, (ii) examined originals or certified, conformed or reproduction copies of
such agreements, instruments, documents and records of the Company and its
subsidiaries, such certificates of public officials, officers or other
representatives of the Company and its subsidiaries and other persons and such
other documents and (iii) reviewed such information from officers and
representatives of the Company and others as we have deemed necessary or
appropriate for the purposes of this opinion.
In all our examinations, we have assumed the legal capacity of all natural
persons executing documents (other than the capacity of officers of the Company
executing documents in such capacity), the genuineness of all signatures, the
authenticity of original and certified documents and the conformity to original
or certified documents of all copies submitted to us as conformed or
reproduction copies. As to various questions of fact relevant to the opinions
expressed herein, we have relied upon, and assumed the accuracy of, certificates
and oral or written statements and other information of or from public
officials, officers or other representatives of the Company and others and
assume compliance on the part of all parties to a document with their covenants
and agreements contained therein. Insofar as statements herein are based upon
our knowledge, such phrase means and is limited to the conscious awareness of
facts or other information by lawyers in this firm who gave substantive
attention to representation of the Company in connection with the Plans.
Based upon the foregoing, and subject to the limitations, qualifications
and assumptions set forth herein, we are of the opinion that:
The shares of Common Stock, when issued, delivered and paid for (with the
consideration received by the Company being not less than the par value thereof)
in accordance with the Plans and any agreement applicable to such shares, will
be validly issued, fully paid and non-assessable.
The opinions expressed herein are limited to the General Corporation Law of
the State of Delaware, as currently in effect. The opinions expressed herein are
given as of the date hereof, and we undertake no obligation to supplement this
letter if any applicable laws change after the date hereof or if we become aware
of any facts that might change the opinions expressed herein after the date
hereof or for any other reason.
The opinions expressed herein are solely for your benefit and may not be
relied on in any manner or for any purpose by any other person or entity and may
not be quoted in whole or in part without our prior written consent.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement relating to the registration of the shares. In giving
this consent, we do not admit that we are in the category of persons whose
consent is required under Section 7 of the Act.
Very truly yours,
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON
By: /s/ Stephen I. Glover
------------------------------------------
Stephen I. Glover
Exhibit 23.1
July 16, 1999
Deloitte & Touche LLP
200 South Biscayne Boulevard, Suite 400
Miami, Florida 33131
Gentlemen:
The following representations, made to the best of our knowledge and
belief, are being provided to you in connection with your review of financial
and accounting matters of Neff Corp. (the "Company") as to transactions and
events after December 31, 1998 and to the date of this letter, your review
having been performed in connection with the Company's Registration Statement on
Form S-8 for shares of common stock (the "Registration Statement"). This
Registration Statement, dated July 19, 1999, is herein referred to as the
Registration Statement.
1. The audited financial statements incorporates by reference in the
Registration Statement present fairly the financial position, results of
operations, and cash flows of the Company for the periods given.
2. No events have occurred subsequent to December 31, 1998 that have a
material effect on the financial statements that are in the Registration
Statement or that should be disclosed in order to keep those statements
from being misleading except, which have been appropriately recorded or
disclosed in the financial statements.
3. Financial statements, as prepared by our Accounting Department, for the
period subsequent to December 31, 1998 have been prepared on a basis
consistent with the financial statements included in the Registration
Statement.
4. The Company has made available to you (a) all financial records and related
data that would have a bearing on the purpose of your review and (b) all
minutes of meetings of stockholder, directors, and committees of directors,
or summaries of actions of recent meetings for which minutes have not yet
been prepared.
5. In connection with your audit of the Company's annual financial statements
for the year ended December 31, 1998, we have previously provided
representations to you dated February 16, 1999. No matters have since come
to our attention that would cause us to believe that any of those
representations are no longer true.
6. We understand that you have not attempted to audit any of the records or
transactions subsequent to December 31, 1998, but you have performed
certain limited procedures, principally those called for by AICPA Statement
on Auditing Standards No. 37, Filings Under Federal Securities Statutes.
Sincerely,
/s/Kevin P. Fitzgerald
- ----------------------------------
President, Chief Executive Officer
/s/Mark H. Irion
- -----------------------
Chief Financial Officer
