SECURITIES AND EXCHANGE COMMISSION
Washington, D.c. 20549
SCHEDULE 14D-1
Amendment No. 10
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"), and Parent hereby amend and supplement their Tender
Offer Statement on Schedule 14D-1 (as amended from time to time, the
"Schedule 14D-1"), filed with the Securities and 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
(collectively with the associated preferred stock purchase rights issued
pursuant to the Rights Agreement, dated as of April 16, 1999, between
Rental Service Corporation and ChaseMellon Shareholder Services, L.L.C.,
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"). 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 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 30, 1999, NationsRent filed a complaint (the "NationsRent
Complaint") against Parent, Purchaser, Bradley S. Jacobs (Chairman and
Chief Executive Officer of Parent), John N. Milne (Vice Chairman and Chief
Acquisition Officer of Parent) and Goldman, Sachs & Co. (Parent's financial
advisor) in the Circuit Court of the 17th Judicial Circuit in and for
Broward County, Florida (the "Florida Litigation") seeking injunctive and
other relief against Parent and to enjoin Parent from, among other things,
allegedly tortiously interfering with the NationsRent Merger Agreement.
NationsRent also seeks an unspecified amount of money damages and punitive
damages. Parent believes the Florida Litigation is without merit, and
intends to vigorously defend against this action.
The foregoing is qualified in its entirety by reference to the
complete text of the NationsRent Complaint, a copy of which is filed as
Exhibit (g)(9) hereto, which 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 May 4, 1999, Parent issued a press release regarding the Florida
Litigation. The full text of the press release is filed as Exhibit (a)(17)
hereto and is incorporated by reference herein.
The information set forth in Item 10(f) of the Schedule 14D-1 is
hereby further amended and supplemented by the following information:
All references to the Merger Agreement Condition and the Section 203
Condition are hereby amended to delete from any definition or explanation
of each such condition the phrase "in its sole discretion" and to replace
it with the phrase "in its reasonable judgment."
The first paragraph of Section 14 of the Offer to Purchase is hereby
amended to replace the phrase "in the sole judgment of Parent or Purchaser"
with the phrase "in the reasonable judgment of Parent or Purchaser."
Paragraphs (a) - (j) of Section 14 of the Offer to Purchase are
hereby amended to replace the phrase "in the sole judgment of Parent or
Purchaser" with the phrase "in the reasonable judgment of Parent or
Purchaser."
The penultimate paragraph of Section 14 of the Offer to Purchase is
hereby deleted.
Section 10 of the Offer to Purchase is hereby amended to insert the
following paragraph immediately prior to the current penultimate paragraph:
"In the event that the conditions to the Commitment Letter are
satisfied, Parent plans to issue a press release through Dow Jones
News Service notifying stockholders of the satisfaction of such
condition. Parent intends to extend the Offer, to the extent
necessary, to ensure that there are at least five business days
remaining until the expiration of the Offer following such press
release."
The the third paragraph of Section 16 of the Offer to Purchase is
hereby amended to delete the third sentence of such paragraph and replace
it with the following four sentences:
"If Parent or an affiliate of Parent acquires less than 50% of the
Shares or the Company's assets (based on the book value thereof),
Parent will pay Goldman Sachs a mutually acceptable transaction fee.
While Parent expects that any such fee would be commensurate with
transactions of this nature and size, no fee has yet been agreed upon
and the determination of such fee will be based upon arm's length
negotiations between Parent and Goldman Sachs. Accordingly, the
amount of the fee, if any, which would be payable to Goldman Sachs in
the event that Parent acquired less than 50% of the Shares or the
Company's assets (based upon the book value thereof) is not presently
capable of being predicted. However, Parent does not expect that a
fee based on the acquisition of less than 50% of the Shares would
ever need to be negotiated with Goldman Sachs because (i) Parent
believes that it is unlikely that it would waive the Minimum
Condition (which requires that more than 50% of the Shares be
tendered), (ii) Parent does not intend to waive the Section 203
Condition, and (iii) Parent does not intend to waive the Defensive
Action Condition (which is presently not satisfied due to the
Company's implementation of its Stockholder Rights Plan)."
Item 11. Materials to be Filed as Exhibits.
(a)(17) Press Release of Parent dated May 4, 1999.
(g)(9) NationsRent Complaint, filed April 30, 1999, by NationsRent in
the Circuit Court of the 17th Judicial Circuit in and for
Broward County, Florida.
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: May 4, 1999
INDEX TO EXHIBITS
Exhibit
Number Exhibit
- ------- -------
(a)(17) Press Release of Parent dated May 4, 1999.
(g)(9) NationsRent Complaint, filed April 30, 1999, by NationsRent in
the Circuit Court of the 17th Judicial Circuit in and for
Broward County, Florida.
FOR IMMEDIATE RELEASE
UNITED RENTALS, INC. COMMENTS ON NATIONSRENT LAWSUIT
----------------------------------------------------
GREENWICH, CT, MAY 4, 1999 - United Rentals, Inc. (NYSE: URI) today
issued the following statement regarding NationsRent, Inc.'s (NYSE: NRI)
lawsuit in Florida:
"The NationsRent lawsuit in Florida is entirely without merit and
nothing more than a diversionary tactic. This lawsuit appears to be a
desperate attempt by NationsRent to try to prevent Rental Service
shareholders from choosing between our all-cash premium offer or
transferring control to Wayne Huizenga, James Kirk and the other
controlling persons of NationsRent in a no-premium stock transaction of
uncertain value. Our tender is continuing and our solicitation to unseat
the Rental Service Board will begin soon."
United Rentals, Inc. is the largest equipment rental company in North
America and serves over 900,000 customers through its network of 482
locations in 41 states, Canada and Mexico.
Certain Information Concerning Participants
United Rentals, Inc. ("United Rentals"), UR Acquisition Corporation
("UR Acquisition") and the following persons named below may be deemed to
be "participants" in the solicitation of consents and/or proxies from
stockholders of Rental Service Corporation ("Rental Service"): the
directors of United Rentals (Bradley Jacobs (Chairman of the Board and
Chief Executive Officer), Wayland Hicks (Vice Chairman and Chief Operating
Officer), John Milne (Vice Chairman, Chief Acquisition Officer and
Secretary), William Berry (President), John McKinney (Vice President,
Finance), Leon Black, Richard Colburn, Ronald DeFeo, Michael Gross, Richard
Heckmann, Gerald Tsai, Jr. and Christian Weyer); the following executive
officers and employees of United Rentals: Michael Nolan (Chief Financial
Officer) and Robert Miner (Vice President, Strategic Planning); and the
nominees of United Rentals (the "Nominees") to stand for election to the
Board of Directors of Rental Service (Messrs. Richard Daniel, Raymond
Troubh, William Aaron, David Bronner, Peter Gold, David Katz, Elliot Levine
and Jeffrey Parker and Ms. Stephanie Joseph).
As of the date hereof, United Rentals is the beneficial owner of 100
shares of common stock, par value $0.01 per share (the "Common Stock"), of
Rental Service. Other than set forth herein, as of the date hereof, neither
United Rentals, UR Acquisition nor any of the persons listed above, has any
interest, direct or indirect, by security holding or otherwise, in Rental
Service.
United Rentals has retained Goldman, Sachs & Co. ("Goldman Sachs") to
act as its financial advisor and the Dealer Managers in connection with the
tender offer (the "Offer") by United Rentals and UR Acquisition to purchase
the shares of Common Stock of Rental Service for $22.75 per share in cash,
for which Goldman Sachs may receive substantial fees, as well as
reimbursement of reasonable out-of-pocket expenses. In addition, United
Rentals has agreed to indemnify Goldman Sachs and certain related persons
against certain liabilities, including certain liabilities under the
federal securities laws, arising out of its engagement. United Rentals has
also entered into a commitment letter with Goldman Sachs Credit Partners
L.P. ("GSCP") relating to the financing of the Offer pursuant to which GSCP
may receive substantial fees, as well as reimbursement of reasonable
out-of-pocket expenses. Goldman Sachs does not admit that it or any of its
partners, directors, officers, employees, affiliates or controlling
persons, if any, is a "participant" as defined in Schedule 14A promulgated
under the Securities Exchange Act of 1934, as amended, in the solicitation
of consents and/or proxies, or that Schedule 14A requires the disclosure of
certain information concerning Goldman Sachs. In connection with Goldman
Sachs' role as financial advisor to United Rentals, the following
investment banking employees of Goldman Sachs may communicate in person, by
telephone or otherwise with a limited number of institutions, brokers or
other persons who are stockholders of Rental Service and may solicit
consents and/or proxies from these institutions, brokers or other persons:
Bruce Evans, Robert Lipman, Jeffrey Moslow and Cody Smith. Goldman Sachs
engages in a full range of investment banking, securities trading,
market-making and brokerage services for institutional and individual
clients. In the normal course of its business Goldman Sachs may trade
securities of Rental Service for its own account and the accounts of its
customers, and accordingly, may at any time hold a long or short position
in such securities. Goldman Sachs has informed United Rentals that, as of
the date hereof, Goldman Sachs holds no shares of the Common Stock of
Rental Service for its own account. Goldman Sachs and certain of its
affiliates may have voting and dispositive power with respect to certain
shares of Rental Service Common Stock held in asset management, brokerage
and other accounts. Goldman Sachs and such affiliates disclaim beneficial
ownership of such shares of Rental Service Common Stock.
###
Investor contact: Media contact:
Robert Miner Fred Bratman or Tracy Williams
United Rentals, Inc. 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]
IN THE CIRCUIT COURT OF THE
17TH JUDICIAL CIRCUIT IN AND
FOR BROWARD COUNTY, FLORIDA
NATIONSRENT, INC., a Delaware
corporation,
Plaintiff,
vs.
UNITED RENTALS, INC., a Delaware
corporation, UR ACQUISITION
CORPORATION, a Delaware
corporation, BRADLEY S. JACOBS,
JOHN N. MILNE, and GOLDMAN
SACHS & CO., a New York limited
partnership,
Defendants.
- ---------------------------------/
COMPLAINT
Plaintiff NationsRent, Inc. ("NationsRent"), by counsel, alleges for
its Complaint, upon knowledge with respect to its own acts and upon
information and belief as to all other matters, as follows:
Nature of the Action
1. NationsRent brings this action for injunctive and other relief
against defendant United Rentals, Inc. ("URI"), to stop URI's tortious
interference with NationsRent's January 20, 1999, merger agreement with
Rental Service Corp. (the "Merger Agreement").
2. NationsRent is a publicly-traded company headquartered at 450
East Las Olas Boulevard, Ft. Lauderdale, Florida. NationsRent is engaged in
the business of renting construction and other heavy equipment. Defendant
United Rentals, Inc. ("URI"), is the largest equipment rental company in
North America, with annual revenues exceeding $1 billion. URI has acted
unlawfully, and continues to act unlawfully, in an effort to prevent
NationsRent from completing an agreed-upon merger with Rental Service
Corporation ("RSC"). RSC, like NationsRent, is a significantly smaller
rival of URI's in the equipment rental industry. On January 20, 1999,
NationsRent and RSC entered into the Merger Agreement to create a new
combined company that could achieve business efficiencies and more
effectively compete against rivals including URI, the largest company in
the industry, thereby maximizing shareholder value and benefitting both
companies and their employees.
3. The January 20, 1999, Merger Agreement was not meant to
foreclose either party from considering, in certain circumstances, other
mergers or business combinations that might be proposed prior to
consummation of the NationsRent - RSC merger. NationsRent and RSC agreed,
however, that neither party would withdraw from the proposed NationsRent -
RSC merger unless genuinely offered a truly "Superior Proposal." As defined
in the agreement, a "Superior Proposal" is one that, in the good faith
determination of the board of either company, is "more favorable," after
taking into account certain specified criteria, including, among other
things, financing of the proposal.
4. In addition, the parties agreed that if either party accepted
such a "Superior Proposal" and thereby terminated the NationsRent - RSC
merger, that party would reimburse the other party for expenses and pay the
other party liquidated damages in the form of a $35 million termination
fee.
5. After NationsRent and RSC had announced the Merger Agreement,
URI, using a specially created takeover vehicle called UR Acquisition
Corp., announced a hostile tender offer to purchase all of RSC's stock and
took other actions to interfere with the NationsRent - RSC merger. URI
premised its actions on fundamental misrepresentations to RSC shareholders.
Among these representations were public statements by URI's Chairman and
Chief Executive Officer, Bradley Jacobs, and URI's Chief Acquisition
Officer, John N. Milne, that URI had firmly secured $2 billion in financing
for its proposed acquisition of RSC. For example, Mr. Jacobs asserted in a
press release on April 5, 1999, that "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." In fact, URI admits in its
"Offer to Purchase" filed with the Securities and Exchange Commission that
"there can be no assurance the [financing] will be consummated."
6. URI has also sought to coerce RSC into disavowing its Merger
Agreement with NationsRent by commencing near simultaneous lawsuits in
Delaware and Connecticut (URI's home jurisdiction) and engaging in
harassing and abusive litigation tactics. Among other things, URI engaged
private investigators to follow and surveil the CEO of RSC, knowing that he
is suffering from a serious medical condition. This conduct was so
egregious that when the Delaware Court learned of URI's tactics, it entered
a protective order to stop them. URI has also solicited RSC shareholders'
consent to appoint six current URI board members to the RSC Board. In
response, RSC has filed a claim in the Connecticut lawsuit discussed above
asserting that such an action, and the interlocking boards of directors
that URI seeks, is a violation of the federal antitrust laws.
7. The obvious intention of URI's conduct is to break up the
NationsRent - RSC deal and destroy NationsRent's rights under the Merger
Agreement. In fact, the URI tender offer is specifically conditioned on a
requirement that RSC breach an obligation to NationsRent - namely, the
payment of a termination fee - included in the Merger Agreement. Under
Florida law, URI's actions are clearly tortious. Among other things,
defendants falsely represented that URI has a "firm commitment" for
financing its hostile tender offer, URI seeks to have RSC's board and
shareholders view its offer as a "Superior Proposal" that would justify
terminating the merger with NationsRent. The Merger Agreement expressly
identifies financing as a factor in determining whether a proposal is
"superior." In fact, URI's offer is not fully financed, and is not a
"Superior Proposal."
8. By this suit, NationsRent seeks to prevent the defendants from
continuing to interfere with its contractual rights under the Merger
Agreement and with the advantageous business relationship between
NationsRent and RSC. Absent injunctive relief, NationsRent also seeks in
the alternative to recover from URI and the other defendants the
substantial damages that NationsRent has sustained, and/or will sustain in
the future, by reason of defendants' wrongful acts.
Parties
9. NationsRent is a Delaware corporation with its principal place
of business in Broward County, Florida. It is one of Broward County's
largest businesses and has 24 existing locations throughout the state of
Florida (with 4 construction locations planned for 1999). NationsRent
currently employs more than 440 people in Florida and has an estimated 1999
payroll in Florida of more than $16 million.
10. Defendant URI is a Delaware corporation. URI (i) is present in,
and conducts business in, Broward County, and (ii) owns or operates at
least eighteen stores in the State of Florida.
11. Defendant UR Acquisition Corp. ("UR Acquisition") is a Delaware
corporation. UR Acquisition is a wholly-owned subsidiary of URI set up as a
part of defendants' plan to tortiously interfere with NationsRent's
existing and prospective business relationships with RSC.
12. Defendant Bradley S. Jacobs ("Jacobs") is Chairman, Chief
Executive Officer, and a director of URI.
13. Defendant John N. Milne ("Milne") is Vice Chairman, Chief
Acquisition Officer, and a director of URI.
14. Defendant Goldman Sachs & Co. ("Goldman"), an investment
banking firm headquartered in New York City, is a limited partnership
organized under the laws of the State of New York. Goldman is present in
and conducts business in the State of Florida. Goldman maintains offices in
Miami, Florida, and has designated a registered agent located in
Plantation, Florida. In exchange for "substantial fees," Goldman has
knowingly permitted URI to make repeated public announcements that Goldman
has "committed" $2 billion to finance a purported offer by URI to purchase
RSC, and has otherwise counseled and assisted URI and the other defendants
in their unlawful acts described herein. URI has agreed to indemnify
Goldman in the event that Goldman is sued in connection with its role in
the URI offer.
Jurisdiction and Venue
15. This is an action for equitable relief in which the amount in
controversy exceeds Fifteen Thousand Dollars ($15,000) exclusive of costs,
interest, and attorneys' fees. This Court has jurisdiction pursuant to
Sections 26.012, 48.193(1), and 48.193(2), Florida Statutes, and otherwise.
16. Defendants' acts, individually and collectively, have caused
and will continue to cause substantial harm in Broward County.
17. Each defendant was and is a voluntary, knowing, and willing
participant in the conspiracy charged herein. Personal jurisdiction is
proper over each defendant based on the acts of the co-conspirators. Each
defendant knew or should have known that the defendant's own acts and the
acts of the co-conspirators would have substantial effects in furtherance
of the conspiracy in Florida. Each defendant knew or should have known that
acts committed outside Florida would have substantial effects in Florida.
Finally, the effects in Florida were a direct and foreseeable result of
each defendant's conduct in furtherance of the conspiracy.
18. Venue is appropriate in Broward County pursuant to Sections
47.011 and 47.051, Florida Statutes, and otherwise.
Factual Background
The Merger Agreement
19. In an agreement dated as of January 20, 1999, NationsRent and
RSC agreed to merge in a stock-for-stock exchange. (A copy of the Merger
Agreement is attached as Exhibit A) The Merger Agreement was executed in
writing, formally approved by both boards of directors, signed on behalf of
each corporation by its respective president, and made public in a press
release on January 20, 1999.
20. Section 6.2.1 of the Merger Agreement between NationsRent and
RSC contemplates that either party may consider an "Acquisition Proposal"
under certain circumstances. See App. Ex. A at 00028-30. Specifically, the
Agreement permits "negotiating with or furnishing information to any Person
who has made a bona fide written Acquisition Proposal" or "recommending
(and in connection therewith, withdrawing or modifying its approval or
recommendation of this Agreement, the Merger or the other transactions
contemplated hereby) such an Acquisition Proposal to its shareholders" so
long as any "such Acquisition Proposal is a Superior Proposal." Id. at
00029.
21. A "Superior Proposal" is defined as any "Acquisition Proposal"
that the board of directors "in its good faith judgment" considers "to be
more favorable" to its shareholders and to the Company. Id. The Agreement
expressly provides that among the factors a board should consider in making
such a determination are "all legal, financial (including the financing
terms of any such proposal), regulatory and other aspects of such
proposal." Id. (emphasis supplied).
22. The Merger Agreement also includes customary termination
provisions. These provisions, provide, among other things, that in the
event either of the parties is unwilling or unable to consummate the merger
for certain specified reasons - including acceptance of a "Superior
Proposal" under the conditions discussed above - the other party is
entitled: (i) to $5,000,000 as reimbursement for "expenses in connection
with the negotiation and execution of, and its performance of its
obligations under this Agreement" and (ii) $35,000,000 "as liquidated
damages" (the "Termination Provisions"). See App. Ex. A at 00045.
Uri Launches a Tender Offer Conditioned
Upon the Elimination of Nationsrent's
Rights Under the Merger Agreement
23. On April 5, 1999, more than two months after the Merger
Agreement was publicly announced, defendants announced a tender offer (the
"URI Tender Offer") purporting to offer to purchase all of the outstanding
shares of RSC common stock at $22.75 per share.
24. URI's Offer to Purchase, filed with the Securities and Exchange
Commission as part of a Tender Offer Statement, also reveals that the URI
Tender Offer is conditioned upon the elimination of RSC's obligations under
the binding Merger Agreement with NationsRent.
25. The Offer to Purchase expressly states that it is conditioned
upon (i) "the Merger Agreement [having] been terminated" and (ii) "the
termination fee and expense reimbursement provisions in the Merger
Agreement having been invalidated, or the obligation to pay any amounts
pursuant to such provisions having been terminated, without any termination
fee or expense reimbursement, or any portion thereof, having been paid by
the company or any of its affiliates pursuant to the Merger Agreement or
otherwise."
26. Similarly, with respect to NationsRent's option to acquire
19.9% of the stock of RSC pursuant to the Merger Agreement, the Offer to
Purchase states that URI's Tender Offer is conditioned upon "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."
27. Simply put, URI announced on April 5, 1999, that the
uncompensated elimination and destruction of NationsRent's rights under the
Merger Agreement is a fundamental condition precedent to URI's bid to buy
RSC.
Defendants' Misleading Statements
28. Both at the time of the URI Tender Offer and repeatedly since
the URI Tender Offer was announced, defendants have made a number of public
statements (through press releases, media interviews, and other public
pronouncements) which dramatically mischaracterize the terms of the URI
Tender Offer, misrepresent and/or conceal material conditions of the URI
Tender Offer, and are designed to mislead RSC shareholders into believing
that the URI Tender Offer is more advantageous to RSC shareholders than the
Merger Agreement between NationsRent and RSC. These public statements were
disseminated into, and received in, among other places, Broward County,
Florida.
29. By way of example only, Jacobs has repeatedly and publicly
stated that the URI Tender Offer was "fully financed" and offered
"certainty." In an interview with Reuters at the time the URI Tender Offer
was made (on April 5, 1999), Jacobs asserted that URI had secured all of
the financing necessary to purchase the outstanding common stock of RSC,
stating:
We are prepared to move quickly, it's all cash and its
all fully financed . . . . We offer certainty and no
lingering doubts because it's a cash offer.
30. In press release issued by URI on the same day (April 5, 1999),
Jacobs said that "we have asked that the Rental Service Board carefully
consider the certainty . . . we are offering to RSC shareholders."
31. The URI press release also stated that:
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.
32. Similarly, in a presentation to investment analysts on April
14, 1999, Milne described the URI Tender Offer as "attractive" because of
the "certainty of getting cash."
33. The April 5, 1999, press release and the April 14, 1999,
presentation, as well as defendants' other false and misleading public
statements, were disseminated into, and received by, the entire investment
community, including, but not limited to, the investment community in
Broward County, Florida.
The Concealed Financing Contingency
34. Despite the repeated public announcements made by defendants
regarding the URI Tender Offer, URI does not have a firm, unconditional
financing commitment from Goldman, or from any other financing source.
35. On April 5, 1999, URI filed with the SEC a Tender Offer
Statement on Schedule 14D-1. This filing provided further information
regarding the URI Tender Offer, including a description of URI's "Offer to
Purchase." 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."
36. The Offer to Purchase also reveals that Goldman's financing is
subject to many material and unilateral conditions, including: (i) the
completion of loan documents; (ii) Goldman's determination of whether there
has been any adverse change to URI's or RSC's general affairs, management,
prospects, or financial position; (iii) no disruption of financial or
capital markets; and, (iv) no litigation that may have a material impact on
URI's or RSC's general affairs, management, prospects, or financial
position.
37. Despite the conditional nature of Goldman's financing, the
first page of the Offer to Purchase - which lists a number of conditions of
the URI Tender Offer - did not mention any financing condition. Similarly,
in the introduction to the Offer to Purchase, under the heading "CERTAIN
CONDITIONS TO THE OFFER," URI describes a number of conditions to the URI
Tender Offer. Again, however, no financing condition is discussed.
38. By contrast, buried deep within the Offer to Purchase, URI
reveals that it can elect not to proceed with the purchase of RSC stock
pursuant to the URI Tender Offer if, in its sole judgment, certain
conditions arise that make it inadvisable to proceed with the purchase. The
tenth and last of the listed conditions is URI's failure to obtain the
requisite financing.
39. Notwithstanding the numerous material conditions and
contingencies to Goldman's financing, Goldman has knowingly allowed URI
and/or the other defendants to state publicly that the URI Tender Offer is
a "fully financed . . . cash offer," that it offer[s] certainty and no
lingering doubts," and that it includes a "commitment from Goldman Sachs &
Co. to provide $2 billion in financing to complete the transaction . . . ."
Goldman has nowhere contradicted these public statements.
40. Goldman is receiving substantial fees for its strategic advice
and participation in the Tender Offer, and stands to receive even larger
payments in the event URI succeeds in breaking up the merger between
NationsRent and RSC. In this regard, Goldman shares, and has sought to
advance, a common purpose with the other defendants, through the actions
described herein and otherwise.
The Offer to Purchase is Illusory and Intended to Mislead
Rsc Shareholders Into Abandoning the Nationsrent Merger
41. In connection with the Offer to Purchase, URI has attempted to
lure RSC shareholders into accepting the URI Tender Offer and cause RSC to
abandon its merger agreement with NationsRent. For example: (i) URI has
publicly asserted in the financial press that the Tender Offer is "fully
financed" and "all cash," when, in fact, URI has no assurance that its
financing will be consummated; (ii) Jacobs has suggested, in his Reuters'
interview and otherwise, that the URI Tender 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 URI Tender
Offer if it cannot obtain satisfactory financing; and, (iii) URI has
publicly stated that it is "prepared to move quickly," that the URI Tender
Offer is "fully financed," and that it provides the "certainty of getting
cash," when, in fact, the URI Tender Offer is subject to multiple
conditions that cannot possibly be fulfilled before the expiration of the
Tender Offer.
42. With these concealed contingencies, the URI Tender Offer is a
sham. By making the offer contingent on the termination of RSC's
contractual obligations without performance or compensation to NationsRent
- - an event which almost certainly will never occur - URI's offer is both
misleading and illusory.
43. Moreover, URI and the other defendants are fully aware that the
contingencies which would require and permit URI to acquire RSC are not
likely to happen but, upon information and belief, have nevertheless
undertaken their course of action for the wrongful purpose of undermining
the merger and the relationship between NationsRent and RSC, irrespective
of the consequences.
Uri's Improper Tactics
44. Not satisfied to rely solely upon a campaign of
misrepresentations to procure the wrongful breach of the Merger Agreement
and destroy the advantageous business relationships between NationsRent and
RSC, the defendants also have sought to advance their goal through abusive
litigation tactics designed to coerce and harass the RSC board of
directors.
45. In a cynical move to portray itself as representing the
interests of the target in connection with its hostile takeover bid, URI
recently bought 100 shares of RSC stock. Then, on the day of its Tender
Offer, URI - adopting the guise of a representative of RSC's shareholders -
sued the RSC board of directors in Delaware Chancery Court claiming that
the decision by RSC to enter into the Merger Agreement in January 1999
constituted a breach of fiduciary duty. The suit named the principal
officers and directors of RSC as individual defendants and was plainly
calculated to harass and pressure RSC into acceding to URI's demand that
RSC breach its agreement with NationsRent.
46. URI's litigation tactics in the Delaware action included
assigning private investigators to follow and harass the chairman of RSC,
knowing he was suffering from a serious medical condition. URI's actions
were brought to the attention of the Delaware court, which felt compelled
to enter a protective order to stop them.
47. On April 7, 1999, URI filed a separate suit in federal court in
Connecticut and, simultaneously, sought via a consent solicitation to
replace the current RSC board of directors with its own slate of directors
- - six of whom are directors of URI. If URI had been successful in replacing
RSC's directors with its own directors, URI and RSC would be controlled by
the same group of directors. In its response to URI's Connecticut
complaint, RSC filed a counterclaim charging that URI's misrepresentations
regarding its tender offer are unlawful under Sections 14(d) and 14(e) of
the Exchange Act, 15 U.S.C. ss.ss. 78(n)d & 78(n)e, and that its attempt to
install six URI directors as RSC directors would result in a violation of
Section 16 of the Clayton Act, 15 U.S.C. ss. 19, which prohibits
interlocking directorships.
48. The conduct of the defendants has irreparably harmed and,
unless enjoined, will continue to irreparably harm NationsRent by depriving
it of the unique opportunity to merge with RSC. NationsRent's resulting
injury is not adequately compensable in monetary damages and, therefore,
NationsRent has no adequate remedy at law.
49. NationsRent has retained the undersigned counsel to represent
it in this action and is obligated to pay its counsel a reasonable fee for
their services on its behalf.
50. All conditions precedent to the bringing of this action have
been performed, have been waived, or have occurred.
COUNT I
(Tortious Interference With Contract)
51. The allegations in paragraphs 1 through 50, inclusive, are
incorporated herein by reference.
52. The Merger Agreement is a binding contract between NationsRent
and RSC.
53. At all material times, each of the defendants had knowledge of
the Merger Agreement.
54. Each of the defendants has intentionally, directly, improperly,
and without any justification or privilege interfered with the contractual
rights of NationsRent contained in the Merger Agreement.
55. NationsRent has been damaged as a result of the intentional and
unjustified actions of defendants.
COUNT II
(Tortious Interference With Advantageous Business Relationships)
56. The allegations in paragraphs 1 through 50, inclusive, are
incorporated herein by reference.
57. Through the Merger Agreement and otherwise, NationsRent has
formed valuable existing and prospective advantageous business
relationships with RSC, the board of directors of RSC, and RSC
shareholders.
58. At all material times, defendants knew that NationsRent had
valuable existing and prospective advantageous business relationships with
RSC, the board of directors of RSC, and RSC shareholders.
59. Notwithstanding their knowledge of these valuable existing and
prospective advantageous business relationships, defendants intentionally,
directly, improperly, and without any justification or privilege interfered
with the aforementioned existing and prospective advantageous business
relationships.
60. As a direct and proximate result of defendants' intentional
interference with NationsRent's existing and prospective advantageous
business relationships with RSC, the board of directors of RSC, and RSC
shareholders, NationsRent has incurred actual and substantial damages, and
will continue to incur damages.
COUNT III
(Civil Conspiracy to Tortiously Interfere With Contract and
With Existing and Prospective Advantageous Business Relationships)
61. The allegations in paragraphs 1 through 50, inclusive, are
incorporated herein by reference.
62. Through the Merger Agreement and otherwise, NationsRent has
formed valuable existing and prospective advantageous business
relationships with RSC, the board of directors of RSC, and RSC
shareholders.
63. At all material times, defendants knew that NationsRent had a
contract and existing and prospective advantageous business relationships
with RSC, the board of directors of RSC, and RSC shareholders.
64. Notwithstanding their knowledge of the contract and the
valuable existing and prospective advantageous business relationships,
defendants intentionally, directly, improperly, and without any
justification or privilege interfered with the aforementioned existing and
prospective advantageous business relationships.
65. Defendants conspired together to accomplish the aforementioned
tortious interference by acting in combination, each sharing in the common
purpose of improperly undermining the Merger Agreement between NationsRent
and RSC and of wrongfully terminating and destroying NationsRent's existing
and prospective advantageous business relationships with RSC, the board of
directors of RSC, and RSC shareholders all to the detriment of NationsRent.
66. As a direct and proximate result of defendants' conspiracy to
intentionally and tortiously interfere with NationsRent's contract and
existing and prospective advantageous business relationships, NationsRent
has incurred actual and substantial damages, and will continue to incur
damages.
Prayer for Relief
WHEREFORE plaintiff NationsRent, Inc., respectfully prays that the
Court enter judgment in its favor and against defendants, as follows:
A. Temporarily, preliminarily, and permanently enjoining URI, UR
Acquisition, Goldman, and each of the individual defendants, as well as
their respective employees, agents, and all persons acting on their behalf,
from taking any further action to interfere with the Merger Agreement;
B. Awarding NationsRent, in the alternative, money damages resulting
from defendants' unlawful conduct, including costs, prejudgment interest,
and, upon motion to be filed by NationsRent pursuant to Section 768.72,
Florida Statutes, punitive damages; and,
C. Granting such other and further relief to NationsRent as the Court
may deem just and proper.
JURY DEMAND
Plaintiff NationsRent, Inc., hereby demands trial by jury as to all
issues triable by right to a jury.
Respectfully submitted,
Dated: April 30, 1999 AKERMAN, SENTERFITT & EIDSON, P.A.
Attorneys for NationsRent, Inc.
Las Olas Center, Suite 950
450 East Las Olas Boulevard
Fort Lauderdale, Florida 33301-4200
Telephone: (954) 463-2700
Facsimile: (954) 463-2224
- and -
SunTrust International Center
Suite 2800
One Southeast Third Avenue
Miami, Florida 33131-1704
Telephone: (305) 374-5600
Facsimile: (305) 374-5095
By: /s/ John F. O'Sullivan
_____________________________
Of Counsel: LARRY A. STUMPF
Florida Bar No. 280526
David Boies JOHN F. O'SULLIVAN
Stephen R. Neuwirth Florida Bar No. 0143154
Eric J. Brenner PAUL R. REGENSDORF
BOIES & SCHILLER LLP Florida Bar No. 0152395
Attorneys for NationsRent
80 Business Park Avenue James Fox Miller
Armonk, New York 10504 MILLER, SCHWARTZ AND MILLER, P.A.
Telephone: (914) 273-9800 4040 Sheridan Street
Facsimile: (914) 273-9810 P.O. Box 7259
- - and - Hollywood, Florida 33081-1259
2435 Hollywood Boulevard Telephone: (954) 962-2000
Hollywood, Florida 33020 Facimile: (954) 961-2124
