SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14D-1
Amendment No. 2
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 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 7, 1999, Parent and Purchaser filed a complaint against
the Company, NationsRent, Inc., a Delaware corporation ("NationsRent"), and
James L. Kirk, the Chairman and Chief Executive Officer of NationsRent in
the United States District Court for the District of Connecticut alleging,
among other things, various violations of the proxy and tender offer rules
following the commencement of the Offer.
The foregoing is qualified in its entirety by reference to the text
of the Complaint, a copy of which is filed as Exhibit (g)(2) 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)(9) Press Release of Parent dated April 7, 1999.
(g)(2) Complaint, filed April 7, 1999, by Parent and Purchaser 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 7, 1999
INDEX TO EXHIBITS
Exhibit
Number Exhibit
(a)(9) Press Release of Parent dated April 7, 1999.
(g)(2) Complaint, filed April 7, 1999, by Parent and Purchaser in
the United States District Court for the District of
Connecticut.
FOR IMMEDIATE RELEASE
UNITED RENTALS FILES SUIT AGAINST RENTAL SERVICE CORP.
AND NATIONSRENT ALLEGING VIOLATIONS OF
PROXY AND TENDER RULES
GREENWICH, CT, April 7, 1999--United Rentals, Inc. (NYSE: URI) said
today that it has filed a complaint in U.S. District Court in Hartford, CT
against NationsRent, Inc. (NYSE: NRI) and Rental Service Corp. (NYSE: RSV)
alleging various violations of the proxy and tender offer rules following
the commencement of United Rentals' tender offer. The suit also names James
L. Kirk, chairman and chief executive officer of NationsRent.
The complaint will be contained as an exhibit to United Rental's
14D-1 Amendment #2, which is being filed today with the Securities and
Exchange Commission. A copy of this filing including the complaint will be
available at the Securities and Exchange Commision's website, www.sec.gov.
United Rentals announced Monday that it had commenced an all cash
$22.75 per share tender offer for all the outstanding shares of Rental
Service.
United Rentals, Inc. is the largest equipment rental company in North
America and serves over 900,000 customers through its present network of 470
locations in 40 states, Canada and Mexico.
###
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
UR ACQUISITION CORPORATION :
and UNITED RENTALS, INC., :
:
Plaintiffs, :
: CIVIL ACTION NO.
-against- :
:
JAMES L. KIRK, RENTAL SERVICES :
CORPORATION and NATIONSRENT, :
INC., :
:
Defendants. : April 7, 1999
VERIFIED COMPLAINT
Plaintiffs UR Acquisition Corporation ("UR Acquisition") and
United Rentals, Inc. ("URI"), by their attorneys, allege for their
complaint for declaratory, injunctive and other relief against James L.
Kirk ("Kirk"), Rental Services Corporation ("RSC") and NationsRent, Inc.
("NationsRent") upon knowledge as to themselves and upon information and
belief as to all other matters, as follows:
NATURE OF THIS ACTION
1. This is an action for injunctive, declaratory and other
relief for violations of Sections 14(a), 14(d) and 14(e) of the Securities
Exchange Act of 1934 (the "Exchange Act"), 15 U.S.C. sections 78n(a), (d),
(e), and the rules and regulations promulgated thereunder by the Securities
and Exchange Commission (the "SEC").
2. By agreement dated January 20, 1999 (the "Merger
Agreement"), defendant RSC agreed to merge with defendant NationsRent in a
stock-for-stock exchange. Pursuant to that transaction --which according
to public sources was valued at approximately $360 million --NationsRent
shareholders will receive .355 share of RSC stock for each share of
NationsRent stock. The Merger Agreement was entered into less than one
week after URI representatives were advised by RSC's Chairman and Chief
Executive Officer that RSC was not "for sale."
3. The proposed RSC/NationsRent transaction is subject to
approval by both RSC and NationsRent shareholders. RSC and NationsRent
have filed preliminary proxy materials with the SEC on a confidential basis
in contemplation of soliciting shareholder votes on the proposed merger.
However, these proxy materials have not been disseminated or made
available, even in preliminary or draft form, to RSC or NationsRent
shareholders. RSC's counsel stated yesterday that RSC does not anticipate
being in a position to disseminate final proxy materials for a two to three
week time period. In fact, defendants have not made even the Merger
Agreement itself public.
4. On April 5, 1999, plaintiffs commenced a tender offer (the
"Tender Offer") to purchase all of the outstanding shares of RSC common
stock at $22.75 per share, for a total of $553 million. That same day, RSC
issued a press release announcing that its board would meet and issue a
recommendation on the Tender Offer by April 16, and stating that RSC
shareholders should do nothing until the board has had an opportunity to
evaluate the offer.
5. RSC's message that its shareholders should "stop, look and
listen" was a facade. Beginning on April 5, the very day on which the
Tender Offer was announced, defendants began to make public statements
designed to encourage RSC shareholders to vote in favor of the proposed
RSC/NationsRent merger and to refrain from tendering their shares into the
Tender Offer. Among other things, defendant NationsRent and its Chairman
and CEO Kirk, respectively, stated that the NationsRent/RSC transaction was
"far superior" and a "superior transaction" to the Tender Offer.
6. In addition, RSC's Chief Financial Officer stated
ambiguously that his company "had intended" to schedule a vote on the
RSC/NationsRent merger "sometime between May 15 and May 31, 1999," without
disclosing that the vote is not now anticipated to occur until mid June at
the earliest.
7. Under the federal securities laws, defendants and their
affiliates may not lawfully engage in a "solicitation" of proxies at this
time. Similarly, RSC or persons acting on its behalf may not lawfully
solicit or make recommendations to shareholders with respect to the Tender
Offer until a Solicitation/Recommendation Statement on Schedule 14D-9 has
been filed.
8. Moreover, defendants' statements were materially misleading
and, therefore, violate Sections 14(a) and 14(e) of the Exchange Act in
connection with the proxy solicitations and the Tender Offer, and
applicable rules and regulations thereunder. Among other things,
defendants' statement fails to disclose material information necessary for
RSC shareholders to truthfully and fully evaluate the position that the
NationsRent/RSC transaction was "far superior" to the $22.75 tender offer.
RSC also falsely suggests that the shareholders meeting on the
NationsRent/RSC proposed merger transaction will occur by the end of May.
9. Plaintiffs, as well as RSC's shareholders and the investing
public, have been and, unless defendants are enjoined from continuing their
illegal activities, will continue to suffer immediate and irreparable
injury, in that, among other things, they will continue to be deprived of
the protections Congress and the SEC have determined they should be
afforded in connection with proxy solicitations and tender offers.
JURISDICTION
10. This Court has jurisdiction over this action pursuant to
Section 27 of the Exchange Act, 15 U.S.C. section 78aa, and 28 U.S.C.
section 1331. The claims alleged herein arise under Sections 14(a), 14(d)
and 14(e) of the Exchange Act and the rules and regulations of the SEC
thereunder. In connection with the unlawful conduct complained of herein,
defendants have directly and indirectly used the means and
instrumentalities of interstate commerce and the mails.
THE PARTIES
11. Plaintiff URI is a Delaware corporation with its principal
executive offices in Greenwich, Connecticut. URI, an owner of RSC stock,
is primarily engaged in the equipment rental business, as are RSC and
NationsRent.
12. Plaintiff UR Acquisition is a Delaware corporation with its
principal executive offices in Greenwich, Connecticut. UR Acquisition is a
wholly owned subsidiary of URI.
13. Defendant RSC is a Delaware corporation with its principal
place of business in Arizona.
14. Defendant NationsRent is a Delaware corporation with its
principal place of business in Florida.
15. Defendant Kirk is Chairman and Chief Executive Officer of
NationsRent.
BACKGROUND
A. The Merger Agreement
16. On January 21, 1999, RSC and NationsRent announced that they
had entered into a Merger Agreement, pursuant to which RSC would merge with
NationsRent in a stock-for-stock transaction valued, according to public
reports, at approximately $360 million when the Agreement was announced.
According to a current report on Form 8-K of RSC filed on January 28, 1999,
pursuant to the Merger Agreement each share of NationsRent would be
converted into 0.355 share of RSC common stock.
17. The complete terms of the Merger Agreement and related
documents remain unknown to the investing public because the document has
not been publicly filed or disclosed.
18. The Merger Agreement is subject to approval by votes of the
shareholders of both RSC and NationsRent. Moreover, while RSC and
NationsRent have filed preliminary proxy materials on a confidential basis,
those materials have not been made publicly available to RSC or NationsRent
shareholders. To date, RSC has not scheduled or announced the date of any
shareholders meeting. In a statement made on April 5, 1999, however, RSC
indicated that it had intended to schedule the vote sometime between May 15
and May 31, 1999.
B. The Tender Offer
19. On April 5, 1999, plaintiffs commenced a Tender Offer to
acquire 100% of RSC's outstanding common stock at an all-cash price of
$22.75 per share --or a total of $553 million. The Tender Offer is
scheduled to expire on April 30, 1999.
20. The RSC board of directors has not yet met to consider its
recommendation to shareholders concerning the Tender Offer. On April 5,
RSC announced that its board would meet and issue such a recommendation by
April 16, the last date it is legally permitted to do so. RSC also issued
a press release in which it ostensibly urged that RSC shareholders do
nothing until the board had an opportunity to evaluate the Tender Offer.
C. Defendants' Unlawful Solicitation
21. Notwithstanding its professed attitude that shareholders
should "stop, look and listen" until the RSC board made and publicized its
recommendation, RSC and NationsRent appropriately recognized that RSC
shareholders, if given a free choice, would decisively prefer United
Rentals' $22.75 all-cash tender to the stock-for-stock merger with
NationsRent under the Merger Agreement that is the RSC board's preferred
transaction. Therefore, defendants almost immediately began to make public
statements that were reasonably calculated to influence RSC shareholders
with respect to their votes on the RSC/NationsRent transaction and their
positions with respect to the Tender Offer, in advance of the time that the
RSC board would analyze and make a recommendation concerning the Tender
Offer. These statements constituted "solicitations" within the meaning of
the SEC Rules governing both proxy materials and target company responses
to tender offers.
22. Specifically, according to a press release issued by
Nations-Rent and publicly disseminated on the PR News Wire via Dow Jones
and elsewhere:
NationsRent Reaffirms Commitment to Complete 'Superior' Merger
Transaction With Rental Service Corporation
PR News Wire via Dow Jones
FORT LAUDERDALE, Fla., April 5/PRNewswire/ NationsRent, Inc. (NYSE:
NRI) said it remains committed to completing its tax-free merger with
Rental Service Corporation, calling it "far superior to United
Rentals' unsolicited taxable $22.75 cash offer for RSC."
James L. Kirk, Chairman of Chief Executive Officer of NationsRent,
said, "The combination of NationsRent and Rental Service Corporation,
approved by the boards of both companies, is intended to create the
preeminent company in the equipment rental industry. NationsRent is
prepared to work with RSC's board and shareholders to ensure the
completion of our merger. We believe that our tax-free merger of
equals with RSC is superior to United Rentals' taxable offer and will
allow shareholders of Rental Service to participate in the substantial
growth opportunities of the combined companies."
23. These statements, made by Kirk and NationsRent but under
circumstances which strongly indicate that the statements were made in
RSC's interest and on RSC's behalf as well, constitute both (i) unlawful
solicitations of RSC shareholders' proxies with respect to the upcoming
merger vote in advance of RSC's having made the proxy disclosures required
by law and regulation; and (ii) unlawful solicitation of RSC shareholders
with respect to the Tender Offer in advance of the RSC board's having made
a recommendation to RSC shareholders and disseminated the materials
concerning that recommendation required by law and regulation.
24. In addition, it was reported that RSC's Chief Financial
Officer had said that RSC "had planned to schedule the shareholder meeting
some time between May 15 and May 31, after the [SEC] had approved the
merger documents." However, RSC failed to advise its shareholders that
(according to statements made by its counsel) they now do not expect the
SEC to approve the proxy statement for at least another two to three weeks,
and do not expect to schedule a meeting until mid-June, if not later.
AS AND FOR A
FIRST CLAIM FOR RELIEF
[For Violations of Section 14(a) of the Exchange Act
and SEC Rule 14a-3(a)]
25. Plaintiffs incorporate the preceding paragraphs as if fully
set forth herein.
26. SEC Rule 14a-1(l) broadly defines "solicit" and
"solicitation" as including any "communication to security-holders under
circumstances reasonably calculated to result in the procurement,
withholding or revocation of a proxy." 17 CFR section 240.14a-1(l)(iii).
27. Defendants' solicitation, effected through NationsRent both
on its own behalf and as agent for RSC, including the statement that the
proposed NationsRent/RSC merger is far superior for RSC shareholders to the
Tender Offer, were disseminated under circumstances reasonably calculated
to result in the procurement or withholding of a proxy in connection with
the RSC shareholder meeting to vote on the NationsRent/RSC transaction.
28. Rule 14a-3(a) mandates that no solicitation "shall be made
unless each person solicited is concurrently furnished or has previously
been furnished with a publicly-filed preliminary or definitive written
proxy statement containing the information specified in Schedule 14A . . .
. " 17 CFR section 240.14a-3(a).
29. Defendants' solicitations have violated the proxy rules
adopted by the SEC in that, among other things, persons solicited were not
concurrently or previously furnished with a publicly-filed preliminary or
definitive written proxy statement containing the information specified in
SEC Schedule 14A, in violation of Rule 14a-3(a), 17 CFR
section 240.14a-3(a).
30. Plaintiffs have no adequate remedy at law.
AS AND FOR A
SECOND CLAIM FOR RELIEF
[For Violations of Section 14(a) of the Exchange Act
and SEC Rule 14a-9]
31. Plaintiffs incorporate the preceding paragraphs as if fully
set forth herein.
32. Section 14(a) of the Exchange Act and Rule 14a-9 were
adopted to ensure that the proxy solicitation process is truthful and to
enable shareholders to evaluate the information provided in proxy materials
fully. Rule 14a-9 provides that:
No solicitation subject to this regulation shall be made by means of
any proxy statement . . . or other communication, written or oral,
containing any statement which at the time and in the light of the
circumstances under which it is made, is false or misleading with
respect to any material fact, or which omits to state any material
fact necessary in order to make the statements therein not false or
misleading . . . .
17 CFR section 240.14a-9.
33. Defendants' solicitations were materially misleading in
stating that NationsRent believed that the proposed merger between RSC and
NationsRent is "far superior," from the point of view of RSC's
shareholders, to the Tender Offer without having also disclosed information
necessary for shareholders to fully evaluate the basis for this statement
including, among other things, all of the bases for defendants' assertion.
34. In addition, the statement alleged in paragraph 24 was
materially false and misleading for the reasons stated.
35. Plaintiffs have no adequate remedy at law.
AS AND FOR A
THIRD CLAIM FOR RELIEF
[For Violations of Section 14(d) of the Exchange Act
and Rule 14d-9]
36. Plaintiffs incorporate the preceding paragraphs as if fully
set forth herein.
37. SEC Rule 14d-9, promulgated by the SEC pursuant to Section
14(d) of the Exchange Act, prohibits the target corporation (here, RSC)
from making any solicitation or recommendation concerning a tender offer to
the target company shareholders unless, as soon as practicable on the date
any such solicitation or recommendation is made, a Schedule 14D-9 is filed
with the SEC and a copy is delivered to the offeror. The Schedule 14D-9
must contain the information requested in Rule 14d-9, including among other
things the nature of the solicitation or recommendation, particularized
reasons for the solicitation or recommendation, and recent transactions in
respect of the target company's securities by the target company or by its
officers and directors.
38. The statements made by NationsRent and Kirk, on behalf of
RSC, constitute solicitations with respect to the Tender Offer, without a
Schedule 14D-9 being on file, in violation of Section 14(d) and Rule 14d-9.
39. Plaintiffs have no adequate remedy at law.
AS AND FOR A
FOURTH CLAIM FOR RELIEF
[For Violations of Section 14(d) and 14(e) of the Exchange Act]
40. Plaintiffs incorporate the preceding paragraphs as if fully
set forth herein.
41. Section 14(e) of the Exchange Act, 15 U.S.C. section 78n(e),
makes it unlawful
for any person to make any untrue statement of a materi
fact or omit to state any material fact necessary in order to make the
statements made, in the light of the circumstances under which they are
made, not misleading, or to engage in any fraudulent, deceptive, or
manipulative acts or practices, in connection with any tender, or any
solicitation of security holders in opposition to or in favor of any such
officer, request, or invitation.
42. Defendants' statements as alleged above were materially
false or misleading.
43. Plaintiffs have no adequate remedy at law.
IRREPARABLE HARM
44. By virtue of defendants' failure to comply with federal
securities laws, United Rentals, as well as all of RSC's other shareholders
and the investing public, are being deprived of the protections and of the
accurate and truthful information to which Sections 14(a), 14(d) and 14(e)
of the Exchange Act and the applicable SEC rules and regulations entitles
them. Unless defendants are ordered to make corrective disclosure and are
enjoined from such further actions, RSC shareholders will be forced to
exercise their voting rights and to make decisions with respect to the
Tender Offer based on information that does not comply with --indeed, was
discriminated in violation of --the federal regulatory scheme.
WHEREFORE, plaintiffs demand judgment against the defendants as
follows:
I. Declaring that defendants have violated Sections 14(a),
14(d) and 14(e) of the Exchange Act and the rules and regulations
promulgated thereunder.
II. Ordering defendants to make all appropriate disclosures and
correct all false or misleading statements and omissions of material fact
heretofore made by them regarding the proposed merger and/or the Tender
Offer.
III. Temporarily, preliminarily and permanently enjoining
defendants, their officers, employees, agents, nominees and affiliates, and
all other persons acting in concert with them or on their behalf, directly
or indirectly, from taking any steps to, or in connection with:
(a) soliciting from any RSC shareholder any proxy, consent
or authorization to vote any shares of RSC stock at the shareholder
vote to be held in connection with the proposed RSC/NationsRent
merger, unless and until defendants comply, in full, with all
applicable provisions of the federal securities laws; and unless and
until such time in the future as the Court may determine that the
effects of defendants' unlawful conduct have disseminated; and
(b) soliciting any RSC shareholder with respect to whether
or not to tender shares into the Tender Offer, unless and until
defendants comply, in full, with all applicable provisions of the
federal securities laws; and unless and until such time in the future
as the Court may determine that the effects of defendants' unlawful
conduct have dissipated.
IV. Granting plaintiffs such other and further relief as
this Court may deem just and proper, including reasonable attorneys'
fees, costs and disbursements of this action.
PLAINTIFFS,
UR ACQUISITION CORPORATION and
UNITED RENTALS, INC.
By: /s/ Thomas J. Groark, Jr.
________________________________
Thomas J. Groark, Jr. (ct04245)
Richard M. Reynolds (ct06124)
Philip S. Wellman (ct09636)
DAY, BERRY & HOWARD LLP
CityPlace I
Hartford, Connecticut 06103
(860) 275-0100
Their Attorneys
OF COUNSEL:
Jay B. Kasner
Steven J. Kolleeny
SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP
919 Third Avenue
New York, New York 10022
(212) 735-3000
VERIFICATION
Bradley S. Jacobs, declares as follows:
I am the Chairman and Chief Executive Officer of United
Rentals, Inc., one of the plaintiffs in this action.
I have reviewed the foregoing Complaint; its contents are
true, except insofar as matters are stated to be pleaded upon
information and belief; and as to those matters I believe it to be
true.
I declare under penalty of perjury that the foregoing is
true and correct.
/s/ Bradley S. Jacobs
____________________________
BRADLEY S. JACOBS
Executed on April 7, 1999
