UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
SCHEDULE 13D/A
(Amendment No. 2)
Under the Securities Exchange Act of 1934
United Rentals, Inc.
----------------------
(Name of issuer)
Common Stock
-----------------------
(Title of Class and Securities)
911363109
-----------------------
(CUSIP Number of Class of Securities)
Richard D. Colburn
c/o O'Melveny & Myers LLP
1999 Avenue of the Stars, Ste. 700
Los Angeles, CA 90067-6035
(310) 553-6700
Kent V. Graham
O'Melveny & Myers LLP
1999 Avenue of the Stars, 7th Floor
Los Angeles, CA 90067
(310) 553-6700
-----------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
March 4, 1999
(Date of Event Which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D and is
filing this schedule because of Rule 13D-1(b)(3) or (4), check the
following box: [ ]
<PAGE>
(1) NAME OF REPORTING PERSON
Richard D. Colburn
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
(a) [X]
(b) [ ]
(3) SEC USE ONLY
(4) SOURCE OF FUNDS
not applicable
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e)
[ ]
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
U.S.
: (7) SOLE VOTING POWER
: -0- shares of Common Stock
:
: (8) SHARED VOTING POWER
Number Of Shares : 14,088,662 shares of Common Stock (See Item 5)
Beneficially Owned :
By Each Reporting : (9) SOLE DISPOSITIVE POWER
Person With : -0- shares of Common Stock
:
: (10) SHARED DISPOSITIVE POWER
: 14,088,662 shares of Common Stock (See Item 5)
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
14,088,662 shares of Common Stock (See Item 5)
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES [ ]
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
19.9% (See Item 5)
(14) TYPE OF REPORTING PERSON
IN
<PAGE>
(1) NAME OF REPORTING PERSON
Ayr, Inc.
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
(a) [X]
(b) [ ]
(3) SEC USE ONLY
(4) SOURCE OF FUNDS
not applicable
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e)
[ ]
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
California
: (7) SOLE VOTING POWER
: -0- shares of Common Stock
:
: (8) SHARED VOTING POWER
Number Of Shares : 13,798,662 shares of Common Stock
Beneficially Owned :
By Each Reporting : (9) SOLE DISPOSITIVE POWER
Person With : -0- shares of Common Stock
:
: (10) SHARED DISPOSITIVE POWER
: 13,798,662 shares of Common Stock
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
13,798,662 shares of Common Stock
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES [ ]
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
19.5%
(14) TYPE OF REPORTING PERSON
CO
<PAGE>
(1) NAME OF REPORTING PERSON
Colburn Foundation
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
(a) [X]
(b) [ ]
(3) SEC USE ONLY
(4) SOURCE OF FUNDS
not applicable
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e)
[ ]
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
U.S.
: (7) SOLE VOTING POWER
: -0- shares of Common Stock
:
: (8) SHARED VOTING POWER
Number Of Shares : 290,000 shares of Common Stock (See Item 5)
Beneficially Owned :
By Each Reporting : (9) SOLE DISPOSITIVE POWER
Person With : -0- shares of Common Stock
:
: (10) SHARED DISPOSITIVE POWER
: 290,000 shares of Common Stock (See Item 5)
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
290,000 shares of Common Stock (See Item 5)
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES [ ]
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.4% (See Item 5)
(14) TYPE OF REPORTING PERSON
CO
<PAGE>
This Amendment No. 2 amends and supplements the Schedule 13D,
as amended by Amendment No. 1,(the "Schedule 13D") initially filed
with the Securities and Exchange Commission on November 4, 1998
by Ayr, Inc., a California corporation, and Richard D. Colburn,
an individual. Except as set forth in this Amendment No. 2,
the information previously set forth in the Schedule 13D, remains
applicable. Any statement contained in the Schedule 13D, will
be deemed to modified or superseded to the extent that a statement
contained herein modifies or supersedes such statement.
Item 1. Security and Issuer
The equity securities to which this statement relates are Common
Stock, par value $.01 per share (the "Common Stock") of United Rentals,
Inc. ("URI"), a Delaware corporation with its principal executive
offices at Four Greenwich Office Park, Greenwich, Connecticut 06830.
As of March 4, 1999, URI had outstanding 70,736,806 shares of Common
Stock, according to information provided by URI in a registration
statement on Form S-3 (Registration No. 333-71775) filed on
February 4, 1999, as amended (the "Registration Statement").
Item 4. Purpose of Transaction
On March 4, 1999, the Colburn Foundation (the "Foundation"),
consummated the sale of 5,710,000 shares of Common Stock in an
underwritten public offering pursuant to the Registration Statement.
Item 5. Interest in Securities of the Issuer
(a) As of the date hereof, Ayr, Inc. ("Ayr") is the record and
beneficial owner of 13,798,662 shares of Common Stock, which constitutes
19.5% of the outstanding shares of Common Stock (based upon the number
of shares that were reported to be outstanding in the Registration
Statement upon completion of the offering contemplated thereby).
Richard D. Colburn ("Colburn") does not directly own any Common
Stock but, by virtue of his position, through the Trust, as the sole
stockholder of Ayr, may be deemed to beneficially own the shares of
Common Stock held by Ayr. The Foundation is the record and beneficial
owner of 290,000 shares of Common Stock, which constitutes 0.4% of
the outstanding shares of Common Stock (based upon the number of
shares that were reported to be outstanding in the Registration
Statement upon completion of the offering contemplated thereby).
As the sole director and the President of the Foundation, Colburn
may be deemed to beneficially own the shares of Common Stock held
by the Foundation. Therefore, Colburn is the indirect beneficial
owner of 14,088,662 shares of Common Stock, which constitutes 19.9%
of the outstanding shares of the Common Stock. Colburn disclaims
beneficial ownership of the shares held by the Foundation.
(b) Ayr and Colburn may be deemed to share the power to vote
or to direct the vote and to dispose or to direct the disposition
of the shares of Common Stock held by Ayr. The Foundation and
Colburn may be deemed to share the power to vote or to direct the
vote and to dispose or to direct the disposition of the shares of
Common Stock held by the Foundation.
(c) On March 4, 1999, the Foundation consummated the sale of
5,710,000 shares of Common Stock in an underwritten public offering
pursuant to the Registration Statement.
(d) The Foundation is a charitable organization under
Section 501(c)(3) of the Internal Revenue Code of 1986. As such,
the proceeds from the sale of the shares of Common Stock held by
the Foundation must be used for specified charitable purposes.
To the best of Reporting Persons' knowledge, except as set forth
herein no other person has the right to receive or the power to
direct the receipt of dividends from, or the proceeds from the
sale of, any shares of URI that the Reporting Persons may be
deemed to own beneficially.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings of Relationships
with Respect to Securities of Issuer
Ayr and URI entered into a Registration Rights Agreement
under which Ayr (and certain permitted transferees, including
the Foundation) will be entitled to certain rights with respect
to the registration of its shares of Common Stock under the
Securities Act.
On March 4, 1999, the Foundation, Ayr, and Colburn entered
into an Underwriting Agreement and an International Underwriting
Agreement with the several underwriters named therein for the
sale by the Foundation of 5,710,000 shares of Common Stock.
(See Item 7.)
Item 7. Material to be filed as Exhibits
1. Joint Filing Statement (incorporated by reference from
Amendment No. 1 to the Schedule 13D).
2. Registration Rights Agreement (incorporated by reference
from URI Registration Statement on Form S-4 (Registration
No. 333-63171) - agreement was filed as Exhibit 10(kk)).
3. Underwriting Agreement (incorporated by reference from URI
Registration Statement on Form S-3 (Registration No. 333-71775) -
agreement was filed as Exhibit 1(a)).
4. Underwriting Agreement (International Version).
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of each of the
undersigned's knowledge and belief, each of the undersigned certifies
that the information set forth in this statement is true, complete
and correct.
Dated: April 13, 1999
Ayr, Inc.
By: /s/ Richard D. Colburn
Richard D. Colburn
Chairman of the Board
/s/ Richard D. Colburn
RICHARD D. COLBURN
Colburn Foundation
By: /s/ Richard D. Colburn
Richard D. Colburn
President
EXHIBIT INDEX
Exhibit No. Description Page
1. Joint Filing Statement *
2. Registration Rights Agreement *
3. Underwriting Agreement *
4. Underwriting Agreement
(International Version) 8
*Incorporated by reference. (See Item 7.)
<PAGE>
EXHIBIT 4
United Rentals, Inc.
Common Stock, $.01 par value
Underwriting Agreement
(International Version)
March 4, 1999
Goldman Sachs International,
Donaldson, Lufkin & Jenrette International
c/o Goldman Sachs International
Peterborough Court,
133 Fleet Street,
London EC4A 2BB, England.
Ladies and Gentlemen:
United Rentals, Inc., a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue
and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") an aggregate of 458,000 shares and, at the election
of the Underwriters, up to 240,000 additional shares of Common
Stock, $.01 par value (the "Common Stock"), of the Company and the
stockholder of the Company named in Schedule II hereto (the "Selling
Stockholder") proposes, subject to the terms and conditions stated
herein, to sell to the Underwriters an aggregate of 1,142,000
shares of Common Stock. The aggregate of 1,600,000 shares to be
sold by the Company and the Selling Stockholder is herein called
the "Firm Shares" and the aggregate of 240,000 additional shares to be
sold by the Company is herein called the "Optional Shares". The Firm
Shares and the Optional Shares that the Underwriters elect to purchase
pursuant to Section 2 hereof are herein collectively called the "Shares".
It is understood and agreed to by all parties that the Company,
the Selling Stockholder, Ayr, Inc., a California corporation ("Ayr")
and Richard D. Colburn are concurrently entering into an agreement,
a copy of which is attached hereto (the "U.S. Underwriting Agreement"),
providing for the sale by the Company and the Selling Stockholder of
up to a total of 6,400,000 shares of Common Stock (the "U.S. Shares"),
including the overallotment option thereunder, through arrangements
with Goldman, Sachs & Co. and Donaldson, Lufkin & Jenrette Securities
Corporation (the "U.S. Underwriters") in the United States. Anything
herein or therein to the contrary notwithstanding, the respective
closings under this Agreement and the U.S. Underwriting Agreement
are hereby expressly made conditional on one another. The Underwriters
hereunder and the U.S. Underwriters are simultaneously entering into
an Agreement between U.S. and International Underwriting Syndicates
(the "Agreement between Syndicates") which provides, among other
things, for the transfer of shares of Stock between the two
syndicates and for consultation by the International Underwriters
hereunder with Goldman, Sachs & Co. prior to exercising the rights
of the Underwriters under Section 7 hereof. Two forms of prospectus
are to be used in connection with the offering and sale of shares of
Stock contemplated by the foregoing, one relating to the Shares
hereunder and the other relating to the U.S. Shares. The latter
form of prospectus will be identical to the former except for
certain substitute pages as included in the registration statement
and amendments thereto as mentioned below. Except as used in
Sections 2, 3, 4, 9 and 11 herein, and except as context may
otherwise require, references hereinafter to the Shares shall
include all of the shares of Stock which may be sold pursuant to
either this Agreement or the U.S. Underwriting Agreement, and
references herein to any prospectus whether in preliminary or
final form, and whether as amended or supplemented, shall include
both the U.S. and the international versions thereof.
In addition, this Agreement incorporates by reference certain
provisions from the U.S. Underwriting Agreement (including the related
definitions of terms, which are also used elsewhere herein) and, for
purposes of applying the same, references (whether in these precise
words or their equivalent) in the incorporated provisions to the
"Underwriters" shall be to the Underwriters hereunder, to the "Shares"
shall be to the Shares hereunder as just defined, to "this Agreement"
(meaning therein the U.S. Underwriting Agreement) shall be to this
Agreement (except where this Agreement is already referred to or as the
context may otherwise require) and to the Underwriters or to Goldman,
Sachs & Co. shall be to the addressees of this Agreement and to
Goldman Sachs International ("GSI"), and, in general, all such
provisions and defined terms shall be applied mutatis mutandis as
if the incorporated provisions were set forth in full herein having
regard to their context in this Agreement as opposed to the U.S.
Underwriting Agreement.
1. The Company, the Selling Stockholder, Richard D. Colburn
and Ayr hereby make to the Underwriters the same respective
representations, warranties and agreements as are set forth in
Section 1 of the U.S. Underwriting Agreement, which Section is
incorporated herein by this reference.
2. Subject to the terms and conditions herein set forth, (a) the
Company and the Selling Stockholder agree, severally and not jointly,
to sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company and the Selling
Stockholder, at a purchase price per share of $28.725, the number of Firm
Shares (to be adjusted by you so as to eliminate fractional shares)
determined by multiplying the aggregate number of Firm Shares to be sold
by the Company and the Selling Stockholder as set forth opposite their
respective names in Schedule II hereto by a fraction, the numerator of
which is the aggregate number of Firm Shares to be purchased by such
Underwriter as set forth opposite the name of such Underwriter in
Schedule I hereto and the denomina-tor of which is the aggregate number
of Firm Shares to be purchased by all the Underwriters from the Company
and the Selling Stockholder hereunder and (b) in the event and to the
extent that the Underwriters shall exercise the election to purchase
Optional Shares as provided below, the Company agrees to sell to each
of the Underwriters, and each of the Underwriters agrees, severally
and not jointly, to purchase from the Company, at the purchase price
per share set forth in clause (a) of this Section 2, that portion of
the number of Optional Shares as to which such election shall have been
exercised (to be adjusted by you so as to eliminate fractional shares)
determined by multiplying such number of Optional Shares by a fraction
the numerator of which is the maximum number of Optional Shares which
such Underwriter is entitled to purchase as set forth opposite the
name of such Underwriter in Schedule I hereto and the denominator of
which is the maximum number of Optional Shares that all of the
Underwriters are entitled to purchase hereunder.
The Company, as and to the extent indicated in Schedule II hereto,
hereby grants, severally and not jointly, to the Underwriters the right
to purchase at their election up to 240,000 Optional Shares, at the
purchase price per share set forth in the paragraph above, for the sole
purpose of covering overallotments in the sale of the Firm Shares. Any
such election to purchase Optional Shares may be exercised only by written
notice from you to the Company, given within a period of 30 calendar days
after the date of this Agreement and setting forth the aggregate number of
Optional Shares to be purchased and the date on which such Optional Shares
are to be delivered, as determined by you but in no event earlier than the
First Time of Delivery (as defined in Section 4 hereof) or, unless you and
the Company otherwise agree in writing, earlier than two or later than ten
business days after the date of such notice.
3. Upon the authorization by GSI of the release of the Firm Shares,
the several Underwriters propose to offer the Firm Shares for sale upon
the terms and conditions set forth in the Prospectus and in the forms of
Agreement among Underwriters (International Version) and Selling
Agreements, which have been previously submitted to the Company by you.
Each Underwriter hereby makes to and with the Company and the Selling
Stockholder the representations and agreements of such Underwriter as a
member of the selling group contained in Sections 3(d) and 3(e) of the
form of Selling Agreements.
4. (a) The Shares to be purchased by each Underwriter hereunder,
in definitive form, and in such authorized denominations and registered
in such names as Goldman, Sachs & Co. may request upon at least forty-eight
hours' prior notice to the Company and the Selling Stockholder shall be
delivered by or on behalf of the Company and the Selling Stockholder to
Goldman, Sachs & Co., through the facilities of The Depository Trust
Company ("DTC"), for the account of such Underwriter, against payment by
or on behalf of such Underwriter of the purchase price therefor by wire
transfer of Federal (same-day) funds to the account specified by the
Company and the Custodian, as their interests may appear, to Goldman,
Sachs & Co. at least forty-eight hours in advance. The Company will
cause the certificates representing the Shares to be made available for
checking and packaging at least twenty-four hours prior to the Time of
Delivery (as defined below) with respect thereto at the office of Goldman,
Sachs & Co., 85 Broad Street, New York, New York 10004 (the "Designated
Office"). The time and date of such delivery and payment shall be, with
respect to the Firm Shares, 9:30 a.m., New York City time, on March 9,
1999 on such other time and date as Goldman, Sachs & Co. and, the Company
and the Selling Stockholder may agree upon in writing, and, with respect
to the Optional Shares, 9:30 a.m., New York time, on the date specified by
Goldman, Sachs & Co. in the written notice given by Goldman, Sachs & Co.
of the Underwrit-ers' election to purchase such Optional Shares, or such
other time and date as Goldman, Sachs & Co. and the Company may agree upon
in writing. Such time and date for delivery of the Firm Shares is herein
called the "First Time of Delivery", such time and date for delivery of
the Firm Optional Shares, if not the First Time of Delivery, is herein
called the "Second Time of Delivery", and each such time and date for
delivery is herein called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery
by or on behalf of the parties hereto pursuant to Section 7 of the U.S.
Underwriting Agreement, including the cross-receipt for the Shares and
any additional documents requested by the Underwriters pursuant to
Section 7(l) of the U.S. Underwriting Agreement, will be delivered at
the offices of Skadden, Arps, Slate, Meagher & Flom LLP, 919 Third Avenue,
New York, New York 10022 (the "Closing Location"), and the Shares will be
delivered at the Designated Office, all at each Time of Delivery. A
meeting will be held at the Closing Location prior to such Time of
Delivery, at which meeting the final drafts of the documents to be
delivered pursuant to the preceding sentence will be available for
review by the parties hereto.
5. The Company hereby makes with the Underwriters the same
agreements as are set forth in Section 5 of the U.S. Underwriting
Agreement, which Section is incorporated herein by this reference.
6. The Company, the Selling Stockholder and the Underwriters
hereby agree with respect to certain expenses on the same terms as
are set forth in Section 6 of the U.S. Underwriting Agreement, which
Section is incorporated herein by this reference.
7. Subject to the provisions of the Agreement between Syndicates,
the obligations of the Underwriters hereunder shall be subject, in their
discretion, at each Time of Delivery to the condition that all
representations and warranties and other statements of the Company,
and the Selling Stockholder, Ayr and Richard D. Colburn herein are, at
and as of such Time of Delivery, true and correct, the condition that
the Company and the Selling Stockholder shall have performed all of
their respective obligations hereunder theretofore to be performed,
and additional conditions identical to those set forth in Section 7 of
the U.S. Underwriting Agreement, which Section is incorporated herein
by this reference.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to
which such Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or any amendment
or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending
any such action or claim as such expenses are incurred; provided, however,
that the Company shall not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon
an untrue statement or alleged untrue statement or omission or alleged
omission made in any Preliminary Prospectus, the Registration Statement
or the Prospectus or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by
any Underwriter through GSI expressly for use therein.
(b) The Selling Stockholder and Richard D. Colburn, jointly
and severally, will indemnify and hold harmless each Underwriter against
any losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus,
the Registration Statement or the Prospectus, or any amendment or
supplement thereof, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission
was made in any Preliminary Prospectus, the Registration Statement, or
the Prospectus, or any such amendment or supplement in reliance upon and
in conformity with written information furnished to the Company by or
on behalf of such Selling Stockholder expressly for use therein; and will
reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that the Selling Stockholder and Richard D. Colburn shall not be
liable in any such case to the extent that such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through GSI
expressly for use therein. Notwithstanding anything herein to the
contrary, the aggregate liability of the Selling Stockholder and
Richard D. Colburn pursuant to this Section will be limited to an amount
equal to the total proceeds (before deducting underwriting discounts and
commissions) received by such Selling Stockholder pursuant to this
Agreement and the U.S. Underwriting Agreement. The Company, the Selling
Stockholder, Ayr and Richard D. Colburn have and may enter into other
agreements amongst themselves with respect to the indemnity obligations
hereunder.
(c) Each Underwriter will indemnify and hold harmless the
Company, the Selling Stockholder and Richard D. Colburn against any
losses, claims, damages or liabilities to which the Company, such
Selling Stockholder or Richard D. Colburn may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or
the Prospectus, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent,
but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through GSI
expressly for use therein; and will reimburse the Company, the Selling
Stockholder, Ayr and Richard D. Colburn for any legal or other expenses
reasonably incurred by the Company, the Selling Stockholder, Ayr or
Richard D. Colburn in connection with investigating or defending any
such action or claim as such expenses are incurred.
(d) Promptly after receipt by an indemnified party under
subsection (a), (b) or (c) above of notice of the commencement of
any action, such indemnified party shall, if a claim in respect
thereof is to be made against an indemnifying party under such
subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying
party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case
any such action shall be brought against any indemnified party and
it shall notify the indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to participate therein and,
to the extent that it shall wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party
to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified
party under such subsection for any legal expenses of other counsel
or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall,
without the written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect
of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party
from all liability arising out of such action or claim and (ii) does
not include a statement as to or an admission of fault, culpability or
a failure to act, by or on behalf of any indemnified party.
(e) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party
under subsection (a), (b) or (c) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received,
in the case of the Company, the Selling Stockholder and Richard D.
Colburn, by the Company and the Selling Stockholder on the one hand and
the Underwriters on the other from the offering of the Shares. If,
however, the allocation provided by the immediately preceding sentence
is not permitted by applicable law or if the indemnified party failed
to give the notice required under subsection (d) above, then each
indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect
not only such relative benefits but also the relative fault of the
Company, the Selling Stockholder and Richard D. Colburn on the one
hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received
by the Company and the Selling Stockholder on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering of the Shares purchased
under this Agreement (before deducting expenses) received by the
Company and the Selling Stockholder bear to the total underwriting
discounts and commissions received by the Underwriters with respect
to the Shares purchased under this Agreement, in each case as set
forth in the table on the cover page of the Prospectus. The relative
fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company, the Selling Stockholder or
Richard D. Colburn on the one hand or the Underwriters on the other
and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company, the Selling Stockholder, Richard D. Colburn and the
Underwriters agree that it would not be just and equitable if
contributions pursuant to this subsection (e) were determined by
pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to
above in this subsection (e). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in
this subsection (e) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (e), no Underwriter
shall be required to contribute any amount in excess of the amount by
which the total price at which the Shares underwritten by it and
distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The Underwriters' obligations
in this subsection (e) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(f) The obligations of the Company, the Selling
Stockholder and Richard D. Colburn under this Section 8 shall be in
addition to any liability which the Company, the Selling Stockholder
and Richard D. Colburn may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of
the Underwriters under this Section 8 shall be in addition to any
liability which the respective Underwriters may otherwise have and
shall extend, upon the same terms and conditions, to each officer
and director of the Company and the Selling Stockholder and to each
person, if any, who controls the Company or the Selling Stockholder
within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Shares which it has agreed to purchase hereunder at a
Time of Delivery, you may in your discretion arrange for you or
another party or other parties to purchase such Shares on the terms
contained herein. If within thirty-six hours after such default by
any Underwriter you do not arrange for the purchase of such Shares,
then the Company and the Selling Stockholder shall be entitled to a
further period of thirty-six hours within which to procure another
party or other parties satisfactory to you to purchase such Shares
on such terms. In the event that, within the respective prescribed
periods, you notify the Company and the Selling Stockholder that you
have so arranged for the purchase of such Shares, or the Company and
the Selling Stockholder notify you that they have so arranged for
the purchase of such Shares, you or the Company and the Selling
Stockholder shall have the right to postpone such Time of Delivery
for a period of not more than seven days, in order to effect whatever
changes may thereby be made necessary in the Registration Statement
or the Prospectus, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments to the Registration
Statement or the Prospectus which in your opinion may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall
include any person substituted under this Section with like effect
as if such person had originally been a party to this Agreement with
respect to such Shares.
(b) If, after giving effect to any arrangements for the
purchase of the Shares of a defaulting Underwriter or Underwriters
by you and the Company and the Selling Stockholder as provided in
subsection (a) above, the aggregate number of such Shares which remains
unpurchased does not exceed one-eleventh of the aggregate number of
all the Shares to be purchased at such Time of Delivery, then the
Company and the Selling Stockholder shall have the right to require
each non-defaulting Underwriter to purchase the number of shares which
such Underwriter agreed to purchase hereunder at such Time of Delivery
and, in addition, to require each non-defaulting Underwriter to purchase
its pro rata share (based on the number of Shares which such Underwriter
agreed to purchase hereunder) of the Shares of such defaulting Underwriter
or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Shares of a defaulting Underwriter or Underwriters by
you and the Company and the Selling Stockholder as provided in subsection
(a) above, the aggregate number of such Shares which remains unpurchased
exceeds one-eleventh of the aggregate number of all the Shares to be
purchased at such Time of Delivery, or if the Company and the Selling
Stockholder shall not exercise the right described in subsection (b)
above to require non-defaulting Underwriters to purchase Shares of a
defaulting Underwriter or Underwriters, then this Agreement (or, with
respect to the Second Time of Delivery, the obligations of the
Underwriters to purchase and of the Company and to sell the Optional
Shares) shall thereupon terminate, without liability on the part of
any non-defaulting Underwriter or the Company or the Selling
Stockholder, except for the expenses to be borne by the Company and
the Selling Stockholder and the Underwriters as provided in Section 6
hereof and the indemnity and contribution agreements in Section 8
hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company, the Selling Stockholder,
Ayr, Richard D. Colburn and the several Underwriters, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant
to this Agreement, shall remain in full force and effect, regardless
of any investigation (or any statement as to the results thereof) made
by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Company, the Selling Stockholder, Ayr or Richard D.
Colburn or any officer or director or controlling person of the Company,
the Selling Stockholder or Ayr, and shall survive delivery of and
payment for the Shares.
11. If this Agreement shall be terminated pursuant to Section 9
hereof, neither the Company nor the Selling Stockholder shall then be
under any liability to any Underwriter except as provided in Section 6
and Section 8 hereof; but, if for any other reason, any Shares are not
delivered by or on behalf of the Company and the Selling Stockholder
as provided herein, the Company and the Selling Stockholder pro rata
(based on the number of Shares to be sold by the Company and such
Selling Stockholder hereunder) will reimburse the Underwriters
through GSI for all out-of-pocket expenses approved in writing by
GSI, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase,
sale and delivery of the Shares not so delivered, but the Company
and the Selling Stockholder shall then be under no further liability
to any Underwriter in respect of the Shares not so delivered except
as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of
each of the Underwriters, and the parties hereto shall be entitled
to act and rely upon any statement, request, notice or agreement on
behalf of any Underwriter made or given by you jointly or by GSI on
behalf of you as the Underwriters; and in all dealings with the
Selling Stockholder hereunder, you and the Company shall be entitled
to act and rely upon any statement, request, notice or agreement on
behalf of such Selling Stockholder made or given by any or all of
the Attorneys-in-Fact for such Selling Stockholder.
All statements, requests, notices and agreements hereunder shall
be in writing, and if to the Underwriters shall be delivered or sent
by mail, telex or facsimile transmission to the Underwriters in care
of GSI, Peterborough Court, 133 Fleet Street, London EC4A 2BB,
England, Attention: Equity Capital Markets, Telex No. 94012165,
facsimile transmission No. (071) 774-1550; if to any Selling
Stockholder shall be delivered or sent by mail, telex or facsimile
transmission to counsel for such Selling Stockholder at its address
set forth in Schedule II hereto; and if to the Company shall be
delivered or sent by mail, telex or facsimile transmission to the
address of the Company set forth in the Registration Statement,
Attention: Secretary, with a copy to Oscar D. Folger, 521 Fifth
Avenue, 24th Floor, New York, New York 10175; provided, however, that
any notice to an Underwriter pursuant to Section 8(c) hereof shall
be delivered or sent by mail, telex or facsimile transmission to
such Underwriter at its address set forth in its Underwriters'
Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Company or the Selling Stockholder
by GSI upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely
to the benefit of, the Underwriters, the Company and the Selling
Stockholder and, to the extent provided in Sections 8 and 10 hereof,
the officers and directors of the Company and each person who
controls the Company, the Selling Stockholder, Ayr, Richard D.
Colburn or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No
purchaser of any of the Shares from any Underwriter shall be
deemed a successor or assign by reason merely of such purchase.
14. Time shall be of the essence of this Agreement.
15. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, United States
of America.
16. This Agreement may be executed by any one or more of the
parties hereto in any number of counterparts, each of which shall
be deemed to be an original, but all such counterparts shall together
constitute one and the same instrument.
If the foregoing is in accordance with your understanding,
please sign and return to us one for the Company and one for each of
the International Underwriters plus one for each counsel and the
Custodian, if any, counterparts hereof, and upon the acceptance
hereof by you, on behalf of each of the Underwriters, this letter and
such acceptance hereof shall constitute a binding agreement among
each of the Underwriters, the Company, the Selling Stockholder, Ayr
and Richard D. Colburn. It is understood that your acceptance of
this letter on behalf of each of the Underwriters is pursuant to the
authority set forth in a form of Agreement among Underwriters
(International Version), the form of which shall be furnished to the
Company and the Selling Stockholder for examination upon request,
but without warranty on your part as to the authority of the signers
thereof.
Any person executing and delivering this Agreement as Attorney-in-Fact
for a Selling Stockholder represents by so doing that he has been duly
appointed as Attorney-in-Fact by such Selling Stockholder pursuant to a
validly existing and binding Power of Attorney which authorizes such
Attorney-in-Fact to take such action.
Very truly yours,
UNITED RENTALS, INC.
By:
Name:
Title:
COLBURN FOUNDATION
By:
Name:
Title: Attorney-in-Fact
Richard D. Colburn
AYR, INC.
By:
Name:
Title:
Accepted as of the date hereof at ,
________________:
Goldman Sachs International
Donaldson, Lufkin & Jenrette International
By: Goldman Sachs International
By:
(Attorney-in-fact)
On behalf of each of the Underwriters
SCHEDULE I
<TABLE>
<S> <C> <C>
Number of Optional
Shares to be
Total Number of Purchased if
Firm Shares Maximum Option
Underwriter to be Purchased Exercised
Goldman Sachs International 800,000 120,000
Donaldson, Lufkin & Jenrette International 800,000 120,000
Total 1,600,000 240,000
</TABLE>
SCHEDULE II
<TABLE>
<S> <C> <C>
Total Number of Number of
Firm Shares Optional Shares
to be Sold to be Sold if
Maximum Option
Exercised
The Company 458,000 240,000
The Selling Stockholder:
Colburn Foundation (a) 1,142,000 0
Total 1,600,000 240,000
</TABLE>
_______________
(a) This Selling Stockholder is represented by O'Melveny &
Myers LLP and has appointed Richard D. Colburn and Robert B. Egelston
and each of them, as the Attorneys-in-Fact for such Selling Stockholder.
<PAGE>
