SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14D-1
AMENDMENT NO. 5
Tender Offer Statement
Pursuant to Section 14(d)(1) of the Securities Exchange Act of 1934
RENTAL SERVICE CORPORATION
(Name of Subject Company)
UR ACQUISITION CORPORATION
UNITED RENTALS, INC.
(Bidders)
COMMON STOCK, PAR VALUE $.01 PER SHARE
(Title of Class of Securities)
76009V 10 2
(CUSIP Number of Class of Securities)
UNITED RENTALS, INC.
FOUR GREENWICH OFFICE PARK
GREENWICH, CT 06830
ATTN.: BRADLEY S. JACOBS
CHAIRMAN OF THE BOARD AND
CHIEF EXECUTIVE OFFICER
TELEPHONE:(203) 622-3131
FACSIMILE:(203) 622-6080
(Name, Address and Telephone Number of Person authorized to
Receive Notices and Communications on Behalf of Bidders)
COPY TO:
MILTON G. STROM, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
919 THIRD AVENUE
NEW YORK, NEW YORK 10022
TELEPHONE: (212) 735-3000
FACSIMILE: (212) 735-2000
UR Acquisition Corporation, a Delaware corporation (the "Purchaser")
and a wholly owned subsidiary of United Rentals, Inc., a Delaware
corporation ("Parent"), hereby amend and supplement their Tender Offer
Statement on Schedule 14D-1 (the "Schedule 14D-1"), filed with the
Securities Exchange Commission (the "Commission") on April 5, 1999, with
respect to the Purchaser's offer to purchase all of the shares of common
stock, par value $0.01 per share (the "Shares"), of Rental Service
Corporation, a Delaware corporation (the "Company"), at a price of $22.75
per Share, net to the seller in cash, (such price, or such higher price per
Share as may be paid in the Offer, the "Offer Price") upon the terms and
subject to the conditions set forth in the Offer to Purchase and in the
related Letter of Transmittal (which, as amended from time to time,
together constitute the "Offer").
ITEM 1. SECURITY AND SUBJECT COMPANY.
The information set forth in Item 1(b) of the Schedule 14D-1 is hereby
amended and supplemented by the following information:
All references to the term "Shares" shall include the associated
preferred share purchase rights (the "Rights") issuable to holders of
Shares under the Rights Agreement, dated as of April 16, 1999, between the
Company and ChaseMellon Shareholder Services, L.L.C., as Rights Agent.
Valid tenders of Shares in the Offer shall include the tender of any
associated Rights issued or issuable in connection therewith.
ITEM 10. ADDITIONAL INFORMATION.
The information set forth in Item 10(e) of the Schedule 14D-1 is
hereby amended and supplemented by the following information:
On April 16, 1999, the Company (i) answered the complaint
filed by Parent and Purchaser with respect to the litigation initiated by
Parent and Purchaser in the United States District Court for the District
of Connecticut on April 7, 1999 (the "Connecticut Litigation"), and (ii)
filed a counterclaim (collectively with the answer described in the
previous clause (i), the "Counterclaim") against Parent and Purchaser
seeking declaratory and injunctive relief. The Counterclaim alleges, among
other things, that Parent violated Sections 14(d) and 14(e) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), by
allegedly misstating, concealing and failing to adequately disclose certain
material terms of the Offer relating to the financing thereof. In the
Counterclaim, the Company claimed that Parent and its representatives have
stated that the Offer is "fully financed" and provides "certainty" while
allegedly failing to state that the Offer is subject to what the Company
claims is a financing condition. The Counterclaim further alleges that
Parent's alleged effort to conceal the "financing condition" and "financing
uncertainty" deprives the Company's stockholders of the protections of
Section 14(e) of the Exchange Act and seeks, among other things, to enjoin
the Offer and compel Parent to make corrective disclosures.
Parent has received a commitment letter (the "Commitment Letter")
from Goldman Sachs Credit Partners L.P., a copy of which has been filed as
Exhibit (b)(i) to this Schedule 14D-1, and as such, Parent considers the
Offer to be "fully financed". As disclosed in the Offer to Purchase, the
Offer is subject to Parent receiving the funds contemplated by the
Commitment Letter; however, the Offer is not subject to Parent seeking any
other commitment for, or sources of, any financing necessary to consummate
the Offer and the Proposed Merger. While the Company alleges that Parent
failed to prominently state that the Offer is subject to a financing
condition, the "Introduction" to the Offer to Purchase states that the
Offer is conditioned on "receipt of the financing pursuant to the
Commitment Letter" and the customary conditions to the Commitment Letter
are summarized in "Section 10--Source and Amount of Funds" of the
Offer to Purchase. As a result of the foregoing, Parent believes the
Counterclaim is without merit and intends to vigorously defend itself
against this action.
The foregoing is qualified in its entirety by reference to the text of
the Counterclaim, a copy of which is filed as Exhibit (g)(3) hereto and is
incorporated by reference herein.
The information set forth in Item 10(f) of the Schedule 14D-1 is
hereby amended and supplemented by the following information:
On April 16, 1999, Parent issued a press release in response to the
Company's rejection of the Offer, a copy of which press release is filed as
Exhibit (a)(12) hereto and is incorporated by reference herein.
Unless otherwise indicated herein, each capitalized term used but not
defined herein shall have the meaning ascribed to such term in the Schedule
14D-1 or in the Offer to Purchase referred to therein.
ITEM 11. MATERIALS TO BE FILED AS EXHIBITS.
(a)(12) Press Release of Parent dated April 16, 1999.
(g)(3) Answer, Counterclaim and Jury Demand, dated April 16, 1999,
filed by the Company in the United States District Court for
the District of Connecticut.
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete
and correct.
UR Acquisition Corporation
By: /s/ John N. Milne
------------------------
Name: John N. Milne
Title: President
United Rentals, Inc.
By: /s/ Bradley S. Jacobs
---------------------------
Name: Bradley S. Jacobs
Title: Chairman and Chief Executive
Officer
Date: April 19, 1999
INDEX TO EXHIBITS
Exhibit
Number Exhibit
------- -------
(a)(12) Press Release of Parent dated April 16, 1999.
(g)(3) Answer, Counterclaim and Jury Demand, dated April 16, 1999, filed
by the Company in the United States District Court for the District
of Connecticut.
FOR IMMEDIATE RELEASE
UNITED RENTALS URGES REMOVAL OF RENTAL SERVICE BOARD
Urges Rental Service Stockholders To Tender Shares At $22.75 Per Share
GREENWICH, CT, April 16, 1999 - United Rentals, Inc. (NYSE: URI) said
today that it is proceeding as previously announced with its $22.75 per
share all cash tender offer for the shares of Rental Service Corp. (NYSE:
RSV), and for the removal of the Rental Service board through a consent
solicitation.
Bradley Jacobs, chairman and chief executive officer of United
Rentals, said, "Rental Service's actions today confirm our view that the
current Rental Service board is not acting in the best interests of Rental
Service stockholders. We urge the Rental Service stockholders to express
their disapproval with the Rental Service board's decisions by tendering
their shares to United Rentals."
Noting Rental Service's first quarter earnings release today and its
14D-9 filing, Mr. Jacobs continued, "We are carefully reviewing the
documents and have numerous concerns. Among other things, we question
Rental Service's estimates of accretion and other measures of value."
"We strongly believe that the Rental Service stockholders will see
the superiority of our $22.75 per share, all cash tender offer, which
represents a 32% premium over Rental Service's closing price prior to the
announcement of our offer," said Mr. Jacobs.
United Rentals is the largest equipment rental company in North
America and serves over 900,000 customers through its network of 470
locations in 40 states, Canada and Mexico.
This press release is neither an offer to purchase nor a solicitation
of an offer to sell any shares of Rental Service Corp. Such offer is made
solely by the Offer to Purchase dated April 5, 1999 of United Rentals, Inc.
and UR Acquisition Corporation and the related Letter of Transmittal. In
addition, this press release should not be construed to constitute a
solicitation of proxies for any meeting of the stockholders of Rental
Service, nor should this press release be construed to constitute a
solicitation of any consent. Any such solicitation which United Rentals or
any affiliate thereof might make would be made only pursuant to separate
proxy or consent materials prepared and filed with the Securities and
Exchange Commission in compliance with the requirements of the Securities
Exchange Act of 1934.
Investor contact: Media contact:
Robert Miner Fred Bratman or Tracy Williams
United Rentals Sard Verbinnen & Co.
Phone: 203-622-3131 Phone: 212-687-8080
Fax: 203-622-6080 Fax: 212-687-8344
E-mail: [email protected] E-mail: [email protected]
or [email protected]
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
- - - - - - - - - - - - - - - - -x
UR ACQUISITION CORPORATION and :
UNITED RENTALS, INC., :
:
Plaintiffs, :
: CIVIL ACTION NO.
-against- : 399CV00625 (DJS)
: April 16, 1999
JAMES L. KIRK, RENTAL SERVICES :
CORPORATION and NATIONSRENT, :
INC., :
:
Defendants. :
- - - - - - - - - - - - - - - - -x
ANSWER, COUNTERCLAIM AND JURY DEMAND
OF RENTAL SERVICE CORPORATION
Rental Service Corporation ("RSC") answers the verified complaint
of UR Acquisition Corporation and United Rentals, Inc. (collectively,
"Plaintiffs"), as follows:
1. RSC denies that Plaintiffs have properly alleged any claim
for relief or any violation of Sections 14(a), 14(d) or 14(e) of the
Securities Exchange Act of 1934, 15 U.S.C. (SS) 78n(a), (d), (e) or the
rules and regulations promulgated thereunder by the Securities and Exchange
Commission (the "SEC").
2. In response to the allegations regarding the content and
effect of the Merger Agreement, RSC respectfully refers the Court to the
Merger Agreement which speaks for itself. RSC denies the remaining
allegations of paragraph 2.
3. RSC admits that the Merger Agreement with NationsRent, Inc.
("NRI") is subject to approval by the stockholders of RSC and NRI, and that
RSC has filed preliminary proxy materials with the SEC. RSC also admits
that it has not distributed its preliminary proxy materials to its
stockholders or the public. RSC denies all other allegations of paragraph 3.
4. RSC admits that on April 5, 1999, Plaintiffs commenced a
highly conditional tender offer and RSC issued a press release. In
response to the allegations regarding the content and effect of Plaintiffs'
tender offer and RSC's press release, RSC respectfully refers the Court to
those documents, which speak for themselves.
5. RSC admits that news media reported comments by James L.
Kirk and NRI, stating that the proposed merger is superior to Plaintiffs'
tender offer. RSC denies the remaining allegations of paragraph 5.
6. RSC denies the allegations of paragraph 6.
7. The allegations of paragraph 7 state legal conclusions to
which no response is necessary.
8. RSC denies the allegations of paragraph 8.
9. RSC denies the allegations of paragraph 9.
10. RSC admits that this Court has jurisdiction over this
action. RSC denies all remaining allegations of paragraph 10.
11. RSC admits that RSC and NRI engage in the equipment rental
business. RSC is without sufficient information and knowledge to form a
belief as to the truth of the remaining allegations of paragraph 11, and
therefore denies those allegations.
12. RSC is without sufficient information and knowledge to form
a belief as to the truth of the allegations of paragraph 12, and therefore
denies those allegations.
13. RSC admits the allegations of paragraph 13.
14. RSC admits the allegations of paragraph 14.
15. RSC admits the allegations of paragraph 15.
16. RSC admits that on January 21, 1999, RSC and NRI announced
that they entered into a Merger Agreement. RSC also admits that it filed a
Form 8-K with the SEC on January 28, 1999. In response to the allegations
regarding the content and effect of the Merger Agreement and RSC's 8-K, RSC
respectfully refers the Court to the Merger Agreement and the 8-K, which
speak for themselves.
17. RSC denies the allegations of paragraph 17.
18. RSC admits that the proposed merger between RSC and NRI is
subject to the approval of the stockholders of RSC and NRI, and that RSC
has filed preliminary proxy materials with the SEC. RSC denies the
remaining allegations of paragraph 18.
19. RSC admits that on April 5, 1999, Plaintiffs announced a
highly conditional tender offer to acquire RSC's outstanding common stock.
In response to the allegations regarding the content and effect of
Plaintiffs' tender offer, RSC respectfully refers the Court to Plaintiffs'
April 5, 1999 tender offer, which speaks for itself.
20. RSC admits that it issued a press release on April 5, 1999.
In response to the allegations regarding the content and effect of RSC's
April 5, 1999 press release, RSC respectfully refers the Court to the April
5, 1999 press release, which speaks for itself. RSC further admits that its
board has not yet issued a recommendation regarding Plaintiffs' tender
offer. RSC is taking all necessary and legally required steps in response
to Plaintiffs' April 5, 1999 tender offer. The remaining allegations of
paragraph 20 are denied.
21. RSC denies the allegations of paragraph 21.
22. The allegations of paragraph 22 concern a press release
purportedly issued by NRI which was not written or authorized by RSC. In
response to the allegations regarding the content and effect of the NRI's
press release, RSC respectfully refers the Court to the press release,
which speaks for itself.
23. RSC denies the allegations of paragraph 23.
24. RSC denies the allegations of paragraph 24.
25. RSC incorporates by reference its responses to paragraphs 1
through 24 as if fully set forth herein.
26. The allegations of paragraph 26 state legal conclusions to
which no response is necessary.
27. RSC denies the allegations of paragraph 27.
28. The allegations of paragraph 28 state legal conclusions to
which no response is necessary.
29. RSC denies the allegations of paragraph 29.
30. RSC denies the allegations of paragraph 30.
31. RSC incorporates by reference its responses to paragraphs 1
through 30 as if fully set forth herein.
32. The allegations of paragraph 32 state legal conclusions to
which no response is necessary.
33. RSC denies the allegations of paragraph 33.
34. RSC denies the allegations of paragraph 34.
35. RSC denies the allegations of paragraph 35.
36. RSC incorporates by reference its responses to paragraphs 1
through 35 as if fully set forth herein.
37. The allegations of paragraph 37 state legal conclusions to
which no response is necessary.
38. RSC denies the allegations of paragraph 38.
39. RSC denies the allegations of paragraph 39.
40. RSC incorporates by reference its responses to paragraphs 1
through 39 as if fully set forth herein.
41. The allegations of paragraph 41 state legal conclusions to
which no response is necessary.
42. RSC denies the allegations of paragraph 42.
43. RSC denies the allegations of paragraph 43.
44. RSC denies the allegations of paragraph 44.
ADDITIONAL DEFENSES
45. RSC pleads, as additional and affirmative defenses, each of
the following:
First Additional Defense
(Failure to State a Claim)
46. Plaintiffs' complaint and each claim for relief fail to
allege facts sufficient to state a claim upon which relief may be granted.
Second Additional Defense
(Unclean Hands)
47. Plaintiffs' claims are barred by the equitable doctrine of
unclean hands.
Third Additional Defense
(Fault of Third Parties)
48. To the extent that URI has suffered any alleged injury, such
injury was proximately caused by the actions or conduct of parties other
than RSC.
Fourth Additional Defense
(Independent Action)
49. NRI was not RSC's agent in connection with making the
statements alleged in Plaintiffs' complaint. NRI's alleged statements were
not made on behalf of RSC.
Fifth Additional Defense
(Materiality)
50. Plaintiffs' claims against RSC must fail because RSC's
alleged actions or omissions were not material.
COUNTERCLAIM
51. As a counterclaim against UR Acquisition Corporation, United
Rentals, Inc. and Bradley Jacobs (collectively, "URI"), Rental Service
Corporation ("RSC") alleges as follows:
INTRODUCTION
1. RSC has filed this counterclaim to obtain declaratory and
injunctive relief halting URI's unlawful scheme to mislead RSC stockholders
by concealing the financing condition in URI's April 5, 1999 tender offer.
Concurrently with its tender offer, URI's chairman and chief executive
officer stated publicly that URI's offer was "fully financed" and offered
"certainty." URI's summary advertisement and press release concerning the
offer described several conditions of the offer, but never mentioned any
need to secure financing or any financing condition. URI's voluminous
Securities and Exchange Commission filing similarly failed to set forth the
financing condition in its summary of the conditions to the offer; instead,
URI set forth this key condition at the very end of a boilerplate
description of the conditions to the offer at the back of its filing. By
misstating and concealing the material terms of its tender offer, URI has
violated federal laws and regulations; only prompt injunctive relief
requiring curative disclosure can ensure that RSC's stockholders will not
be mislead.
JURISDICTION AND VENUE
2. The Court has jurisdiction over this action pursuant to 15
U.S.C. (S) 78aa and 28 U.S.C. (S) 1331. Venue in this Court is proper
pursuant to 15 U.S.C. (S) 78aa and 28 U.S.C. (S) 1391(b).
THE PARTIES
3. Counterclaimant RSC is a Delaware corporation with its
principal executive offices in Scottsdale, Arizona. RSC rents construction
and industrial equipment. RSC's common stock is registered pursuant to
Section 12(g) under the Securities Exchange Act of 1934 (the "Exchange
Act") and is traded on the American Stock Exchange.
4. Counterdefendant UR Acquisition Corporation is a Delaware
corporation and is a wholly owned subsidiary of Counterdefendant United
Rentals, Inc.
5. Counterdefendant United Rentals, Inc. is a Delaware
corporation with its principal executive offices in Greenwich, Connecticut.
6. Counterdefendant Bradley Jacobs is the Chairman and Chief
Executive Officer for United Rentals, Inc.
URI'S MISLEADING PUBLIC STATEMENTS AND TENDER OFFER
7. On April 5, 1999, URI announced an unsolicited, highly
conditional tender offer for all of the outstanding shares of RSC common
stock (the "Offer"). URI announced the Offer through several media,
including: (a) an interview given by Bradley Jacobs to Reuters, a major
news agency; (b) a formal press release; (c) a summary advertisement in the
Wall Street Journal; and (d) filings with the SEC.
8. In his interview with Reuters, Jacobs asserted that URI had
secured the financing required to purchase RSC, stating:
"We're prepared to move quickly, it's all cash and it's all fully
financed. . . . We offer certainty and no lingering doubts
because it's a cash offer" (emphasis added)
9. URI's April 5, 1999 press release stated:
"United Rentals has a firm commitment from Goldman, Sachs & Co.
to provide $2 billion in financing to complete the transaction
and for other corporate purposes."
URI's press release also stated that the Offer was subject to
certain conditions:
"The offer is conditioned on, among other things, the tender to
United Rentals of a majority of Rental Service shares on a
fully-diluted basis, the termination of the merger agreement
between Rental Service and NationsRent Inc., the agreement by the
board of directors of Rental Service to enter into a merger
agreement for the acquisition of Rental Service by United
Rentals, the expiration or termination of the waiting period
under the Hart-Scott-Rodino Antitrust Improvements Act of 1976,
and the termination or invalidation of a 19.9% lock-up option and
break-up fee provided to NationsRent in its merger agreement with
Rental Service."
10. In a Summary Advertisement for the Offer, published in the
Wall Street Journal on April 5, 1999, URI again described the conditions to
the Offer:
"The Offer is conditioned upon, among other things, (1) there
being validly tendered and not withdrawn prior to the expiration
of the Offer that number of Shares which constitutes a majority
of the Shares outstanding on a fully diluted basis (the "Minimum
Condition"), (2) the stockholders of the Company not having
approved the Agreement and Plan of Merger, dated as of January
20, 1999 (the "NationsRent Merger Agreement"), between the
Company and NationsRent, Inc., a Delaware corporation
("NationsRent"), (3) Purchaser being satisfied, in its sole
discretion, that the NationsRent Merger Agreement has been
terminated in accordance with its terms, and the Company having
entered into a definitive merger agreement with Parent and
Purchaser, to provide for the acquisition of the Company pursuant
to the Offer and the proposed merger described in the Offer to
Purchase, (4) Purchaser being satisfied, in its sole discretion,
that the provisions of Section 203 of the Delaware General
Corporation Law, as amended, are inapplicable to the Offer and
the proposed merger described in the Offer to Purchase, (5) the
Company not having entered into or effectuated any agreement or
transaction with any person or entity having the effect of
impairing Purchaser's ability to acquire the Company or otherwise
diminishing the expected economic value to Purchaser of the
acquisition of the Company, (6) any applicable waiting period
under the Hart-Scott-Rodino Antitrust Improvements Act of 1976,
as amended, having expired or been terminated prior to the
expiration of the Offer, and (7) the option held by NationsRent
to purchase up to 19.9% of the outstanding Shares having been
terminated or invalidated without any Shares having been issued
thereunder. The Offer is also subject to other terms and
conditions set forth in the Offer to Purchase."
Securing financing was not one of the listed conditions.
11. Also, on April 5, 1999, URI filed with the SEC a Tender
Offer Statement on Schedule 14D-1 (the "Schedule 14D-1"), which provided
further information regarding the Offer, including URI's Offer to Purchase.
The first page of the Offer to Purchase again listed a number of conditions
of the Offer, but did not mention any financing condition. In the
introduction of the Offer to Purchase, under the heading "CERTAIN
CONDITIONS TO THE OFFER," URI described the eight conditions of the Offer.
Once again, no financing condition was set forth.
12. Buried deep within the Offer to Purchase, URI revealed that
it can elect not to proceed with the purchase of RSC stock, if, in its sole
judgment, certain conditions arise that make it inadvisable to proceed with
the purchase. (Offer to Purchase, pp. 27-30, (P) 14(a)-(j).) The tenth and
last of the listed conditions was URI's failure to obtain the requisite
financing. (Offer to Purchase, p. 30, (P) 14(j).) Even more troubling, the
Offer to Purchase states:
"Although [URI] expects that the [financing] will be available to
provide funds for the consummation of the Offer . . . there can
be no assurance that the [financing] will be consummated." (Offer
to Purchase, p. 20.)
13. The Offer to Purchase also reveals that Goldman, Sachs'
financing is subject to many conditions, including: (a) the completion of
loan documents, (b) Goldman, Sachs' determination of whether there has been
any adverse change to URI's or RSC's general affairs, management, prospects
or financial position, (c) no disruption of financial or capital markets,
and (d) no litigation that may have a material impact on URI's or RSC's
general affairs, management, prospects or financial position.
FIRST COUNTERCLAIM FOR RELIEF
(Violation of Section 14(e) of the Exchange Act, 15 U.S.C. (S) 78n(e))
14. RSC realleges and incorporates by reference each and every
allegation contained in paragraphs 1-13, inclusive, as though fully set
forth herein.
15. Section 14(e) of the Exchange Act, 15 U.S.C. (S) 78n(e),
makes it unlawful for any person to make any untrue statement or to engage
in any fraudulent, deceptive, or manipulative acts in connection with any
tender offer.
16. In connection with the Offer, URI has violated Section 14(e)
in at least the following ways:
(a) URI has publicly asserted in the financial press that the
Offer is "fully financed" and "all cash," when in fact, URI has no
assurances that its financing will be consummated;
(b) Jacobs asserted in his Reuters' interview, and URI asserted
in its Press Release and Summary Advertisement, that the Offer does
not include a financing condition, when in fact, buried deep within
the Offer to Purchase, URI has reserved the right to withdraw or
abandon the Offer if it cannot obtain satisfactory financing; and
(c) URI has publicly stated that the Offer provides "certainty"
and is "fully financed," when in fact, the Offer is subject to
multiple conditions that cannot possibly be fulfilled before the
expiration of the Offer.
17. Through the above described acts and omissions, URI engaged
in fraudulent, deceptive, or manipulative practices in connection with its
Offer in violation of Section 14(e).
18. The provisions of Section 14(e) of the Exchange Act were
designed to protect stockholders by ensuring that they have adequate and
accurate information on which to base their decisions whether to sell,
tender or hold their shares. URI's effort to conceal its financing
condition and financing uncertainty is depriving RSC, its stockholders and
the investing public of the protections of Section 14(e). URI's conduct has
harmed RSC's and the public's interest in full disclosure in connection
with tender offers and sound financial markets.
19. Unless URI is ordered to make corrective disclosures and is
enjoined from such further actions, RSC and its stockholders will be forced
to make decisions with respect to the Offer based on inaccurate and
misleading information that does not comply with the federal regulatory
scheme. RSC has no adequate remedy at law.
SECOND COUNTERCLAIM FOR RELIEF
(Violation of Section 14(d) of the Exchange Act, 15 U.S.C. (S) 78n(d))
20. RSC realleges and incorporates by reference each and every
allegation contained in paragraphs 1-13, inclusive, as though fully set
forth herein.
21. Section 14(d) of the Exchange Act, 15 U.S.C. (S) 78n(d) and
the SEC's rules promulgated thereunder, mandate that a tender offer must
disclose certain specified information to investors, and the offeror must
file such information with the SEC on a Schedule 14D-1. Pursuant to Section
14(d), the offeror must disclose all known material information regarding
financing for the tender offer.
22. In connection with the Offer, URI has violated Section 14(d)
because it has failed to adequately disclose all material information
regarding the financing for the Offer known to URI at the time of the
Offer.
23. The provisions of Section 14(d) of the Exchange Act were
designed to protect stockholders by ensuring that they have adequate and
accurate information on which to base their decisions to sell, tender or
hold their shares. URI's effort to conceal its financing condition and
uncertainty is depriving RSC, its stockholders and the investing public of
the protections of Section 14(d). URI's conduct has harmed RSC's and the
public's interest in full disclosure in connection with tender offers and
sound financial markets.
24. Unless URI is ordered to make corrective disclosures and is
enjoined from such further actions, RSC and its stockholders will be forced
to make decisions with respect to the Offer based on inaccurate and
misleading information that does not comply with the federal regulatory
scheme. RSC has no adequate remedy at law.
JURY DEMAND
25. RSC hereby demands a jury trial as provided by Rule 38(a) of
the Federal Rules of Civil Procedure.
PRAYER FOR RELIEF
WHEREFORE, RSC prays for judgment against URI as follows:
1. Dismissing Plaintiffs' claims and granting judgment in favor
of RSC;
2. Declaring that URI has violated Sections 14(e) and 14(d) of
the Exchange Act and the rules promulgated thereunder;
3. Ordering URI to make all appropriate disclosures and to
correct all false or misleading statements and omissions of material fact
regarding its Offer;
4. Temporarily, preliminarily and permanently enjoining URI
from proceeding with its Offer or any future tender offer for the purchase
of RSC's outstanding shares, unless and until URI complies with all
applicable provisions of the federal securities laws and the effects of
URI's unlawful conduct have dissipated;
5. Awarding RSC its costs and attorneys' fees incurred in this
action; and
6. Granting all further relief as the Court may deem just and
proper.
Dated: April 16, 1999
DEFENDANT AND COUNTERCLAIMANT
RENTAL SERVICE CORPORATION
By /s/ William H. Champlin III
William H. Champlin III
CT04202
TYLER COOPER & ALCORN LLP
City Place, 35th Floor
Hartford, CT 06103-3488
(860) 725-6200
(Fax) (860) 278-3802
Its Attorneys
OF COUNSEL
Marc W. Rappel
James J. Farrell
LATHAM & WATKINS
633 W. 5th Street, Suite 4000
Los Angeles, CA 90071
(213) 485-1234
(213) 891-8763
