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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
Under the Securities Exchange Act of 1934
(Amendment No. 1 )*
PRIME SERVICE, INC.
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(Name of Issuer)
Common Stock
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(Title of Class of Securities)
74157E1
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(CUSIP Number)
E. Michael Greaney, Gibson, Dunn & Crutcher,
200 Park Avenue, New York, N.Y. 10166-0193
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(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
June 8, 1997
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(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 / /.
Check the following box if a fee is being paid with the statement / /. (A fee
is not required only if the reporting person: (1) has a previous statement on
file reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such
class.) (See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are
to be sent.
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section
of the Act but shall be subject to all other provisions of the Act (however,
see the Notes).
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Schedule 13D
CUSIP No. 74157E1 Page 2 of 7 Pages
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
INVESTCORP S.A.
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
Not Applicable (b) / /
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
WC
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e)
Not Applicable
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Luxembourg
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7 SOLE VOTING POWER
NUMBER OF 0
SHARES ----------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 8,049,432
EACH ----------------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON 0
WITH ----------------------------------------------------------
10 SHARED DISPOSITIVE POWER
8,049,432
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,049,432
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* / /
Not Applicable
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
28.75%
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14 TYPE OF REPORTING PERSON*
CO
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
* Filed jointly pursuant to Rule 13d-1(f)(1) of the Securities Exchange Act
of 1934, as amended.
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Schedule 13D
CUSIP No. 74157E1 Page 3 of 7 Pages
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
SIPCO Limited
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
Not Applicable (b) / /
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
WC
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e)
Not Applicable
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Cayman Island
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7 SOLE VOTING POWER
NUMBER OF 0
SHARES ----------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 8,049,432
EACH ----------------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON 0
WITH ----------------------------------------------------------
10 SHARED DISPOSITIVE POWER
8,049,432
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,049,432
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES*
Not Applicable
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
28.75%
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14 TYPE OF REPORTING PERSON*
CO
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
* Filed jointly pursuant to Rule 13d-1(f)(1) of the Securities Exchange Act of
1934, as amended.
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CUSIP NO. 74157E1 SCHEDULE 13D Page 4 of 7
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This Amendment No. 1 to Schedule 13D relates to the Common Stock, par
value $0.01 per share (the "Common Stock"), of Prime Service, Inc., a
Delaware corporation ("Prime").
This Amendment No. 1 to Schedule 13D is being filed pursuant to Rule
13d-2(a) of Regulation 13D-G of the General Rules and Regulations under the
Securities Exchange Act of 1934, as amended, on behalf of Investcorp S.A., a
Luxembourg corporation, ("Investcorp"), and Sipco Limited, a Cayman Islands
corporation ("Sipco" and collectively, the "Reporting Persons") to amend the
Reporting Persons' Schedule 13D as indicated herein to report, among other
things, that the entities that are record owners of the shares over which the
Reporting Persons have beneficial ownership and certain other shareholders of
Prime Common Stock have agreed to tender all of the shares of Prime Common
Stock owned by them to a subsidiary of Atlas Copco North America, Inc. ("Atlas
Copco") at a price of at least $32.00 per share and have granted Atlas Copco a
proxy with respect to such shares.
The Reporting Persons previously filed a Schedule 13D respecting their
indirect beneficial ownership of approximately 28.75% of the Common Stock of
Prime Services Inc. Except as otherwise indicated herein, all defined terms
used herein shall have the meaning ascribed to them in such Schedule 13D.
ITEM 1. SECURITY AND ISSUER.
No material change.
ITEM 2. IDENTITY AND BACKGROUND.
No material change.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
No material change.
ITEM 4. PURPOSE OF TRANSACTION.
Two indirect wholly-owned subsidiaries of Investcorp which in the
aggregate own 1,089,658 shares of Prime Common Stock (the "Investcorp
Subsidiaries"), certain other entities (the "Managed Entities") that in the
aggregate own 6,960,274 shares of Prime Common Stock as to which Investcorp
may be deemed to share beneficial ownership, and certain other shareholders
of Prime Common Stock (collectively with the Investcorp Subsidiaries and the
Managed Entities, the "International Investors") each have entered into a
Stockholder Agreement with Atlas Copco North America, Inc. ("Atlas Copco")
dated as of June 8, 1997 (the "Stockholder Agreement") (filed herewith) in
connection with the execution by Atlas Copco, PS Acquisition Corp. ("Newco")
and Prime of an Agreement and Plan of Merger dated June 8, 1997 (the "Merger
Agreement"). In connection with the Stockholder Agreement, Investcorp has
executed the Investcorp Bank E.C. Guaranty (the "Investcorp Guaranty") (filed
herewith as part of the Stockholder Agreement), guaranteeing the performance
of the International Investors of their respective obligations and agreements
under the Stockholder Agreement. The Investcorp Guaranty terminates
immediately following the merger.
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CUSIP NO. 74157E1 SCHEDULE 13D Page 5 of 7
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Pursuant to the Stockholder Agreement, each of the International
Investors has agreed to vote in favor of the merger provided for under the
Merger Agreement and has granted and appointed Atlas Copco as irrevocable
proxy and attorney-in-fact to vote the International Investor's respective
shares in favor of such merger. Pursuant to the Stockholder Agreement, each
of the International Investors also has agreed to tender and sell to Newco
all of its respective shares of Prime Common Stock pursuant to and in
accordance with the terms of the Offer to Purchase to be made by Newco
pursuant to the Merger Agreement. Pursuant to the Merger Agreement and
subject to the terms and conditions set forth therein, Newco will merge into
Prime, with Prime continuing as the surviving corporation (the "Surviving
Corporation"). At the time of the merger all shares of Prime Common Stock
will be canceled and retired and the common stock of Newco will be converted
into common stock of the Surviving Corporation, resulting in Atlas Copco
holding all outstanding shares of common stock of the Surviving Corporation.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) No material change.
(b) (i) See Cover Page Items 7 and 8. Investcorp does not have the
sole power to vote or to dispose of any shares of the Common Stock. Investcorp
shares the power to direct the voting and to direct the disposition of over
1,089,658 shares of the Common Stock held by the Investcorp Subsidiaries. In
addition, Investcorp may be deemed to share the power to direct the voting and
to direct the dispositon of an additional 6,960,274 shares of the Common Stock
owned by the Managed Entities, because such entities or their shareholders or
principals have entered into revocable management services or similar
agreements with an affiliate of Investcorp pursuant to which each such entity
or person indirectly has granted such affiliate the authority to direct the
voting and disposition of the Common Stock owned by such entity for so long as
such agreement is in effect. Pursuant to the Stockholder Agreement, the power
to vote or to direct the vote and the power to direct the disposition of the
shares of Prime Common Stock owned by the Investcorp Subsidiaries and the
Managed Entities is shared with respect to certain matters and subject to
certain terms and conditions with Atlas Copco and/or Newco.
(ii) SIPCO does not directly own any Common Stock. The shares listed as
beneficially owned by SIPCO consist of the shares Investcorp may be deemed to
beneficially own. SIPCO, which is a passive holding company entity without
operations or employees, may be deemed to control Investcorp through its
ownership of a majority of the stock of a company which indirectly owns a
majority of Investcorp's outstanding stock. Pursuant to the Stockholder
Agreement, the power to vote or to direct the vote and the power to direct
the disposition of the shares owned by the Investcorp Subsidiaries and the
Managed Entities is shared with respect to certain matters and subject to
certain terms and conditions with Atlas Copco and/or Newco.
(c) No material change.
(d) The response to Item 6 is incorporated herein by reference.
(e) Not applicable.
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CUSIP NO. 74157E1 SCHEDULE 13D Page 6 of 7
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ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
The response to Item 4 is incorporated herein by reference.
Pursuant to the Stockholder Agreement each International Investor also
agreed that (i) if the Merger Agreement is terminated because Prime's Board
of Directors exercises its fiduciary duties and if the International Investor
receives consideration of more than $32.00 a share from a third party in
connection with or following any public announcement of a Third Party
Business Combination (as defined in the Stockholder Agreement), the
International Investor shall pay to Atlas Copco 100% of (A) the excess of (1)
such consideration up to and including $36.00, over (2) $32.00, multiplied by
(B) the number of shares with respect to which such consideration was
received; (ii) if the International Investor receives consideration of more
than $32.00 a share from Atlas Copco in connection with or following any
public announcement of a Third Party Business Combination (as defined in the
Stockholder Agreement), the International Investor shall pay to Atlas Copco
an amount equal to (A) 100% of the excess of (1) the consideration up to and
including $34.00, over (2) $32.00 and (B) 50% of the excess of (1) the
consideration up to and including $36.00 over (2) $34.00, in each case
multiplied by the number of shares with respect to which such consideration
was received; and (iii) if Atlas Copco pays the International Investor more
than $32 a share and sells the stock or assets of Prime within 180 days,
Atlas Copco shall pay to the International Investor the excess of the sales
proceeds in connection with such sale over the aggregate price paid for the
shares by Atlas Copco. Under management service and other agreements with
certain of the International Investors' shareholders, Investcorp has a
contingent right to a fee based upon the investment return realized on the
portfolio of securities managed by Investcorp's subsidiaries.
In the Stockholder Agreement, each International Investor also agreed,
among other things, not to solicit, initiate, enter into or participate in
any inquiries, proposals, offers or negotiations from any person other than
Atlas Copco and its affiliates relating to any Transaction Proposal (as
defined in the Merger Agreement) and not to offer for sale, sell, transfer,
tender, pledge, encumber, assign or otherwise dispose of any shares of Prime
Common Stock owned by it.
ITEM 7. MATERIALS TO BE FILED AS EXHIBITS.
1. Stockholder Agreement dated as of June 8, 1997 between Atlas Copco and
the International Investors (includes the Investcorp Bank E.C. Guaranty)
2. Agreement and Plan of Merger dated as of June 8, 1997 among Atlas
Copco, PS Acquisition Corp. and Prime (incorporated herein by reference
to Exhibit 99.1 to the Schedule 14D-9 filed June 9, 1997 by Prime.)
ITEM 8. CERTIFICATION AND SIGNATURE:
After reasonable inquiry and to the best of my knowledge and belief, the
undersigned certifies that the information set forth in this statement is
true, complete and correct.
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CUSIP NO. 74157E1 SCHEDULE 13D Page 7 of 7
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INVESTCORP S.A.
By: /s/ Gary S. Long June 9, 1997
Title: Authorized Representative
SIPCO LIMITED
By: /s/ Gary S. Long June 9, 1997
Title: Authorized Representative
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Exhibits
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99.1 Stockholder Agreement dated as of June 8, 1997
between Atlas Copco and the International
Investors.
<PAGE>
Exhibit 99.1
STOCKHOLDER AGREEMENT
STOCKHOLDER AGREEMENT (this "Agreement"), dated as of June 8, 1997,
by and between ATLAS COPCO NORTH AMERICA INC., a Delaware corporation
("Parent"), CHASE NOMINEES (GUERNSEY) LIMITED, a Guernsey (Channel Islands)
corporation, and ARLINGTON LIMITED, BALLET LIMITED, DENARY LIMITED, EQUIPMENT
RENTAL LIMITED, EQUITY PEA LIMITED, EQUITY PEB LIMITED, EQUITY PEC LIMITED,
EQUITY PED LIMITED, FLEET EQUITY LIMITED, FREEPORT LIMITED, GLEAM LIMITED,
HIGHLANDS LIMITED, INVESTCORP INVESTMENT EQUITY LIMITED, LAPORTE LIMITED,
NOBLE LIMITED, OUTRIGGER LIMITED, PLANO LIMITED, QUILL LIMITED, RADIAL
LIMITED, SHORELINE LIMITED, RENTAL HOLDINGS LIMITED, RENTAL EQUITY LIMITED,
PRIME HOLDINGS LIMITED, PRIME EQUITY LIMITED, PE INVESTMENTS LIMITED, PE
HOLDING LIMITED, NEW PRIME INVESTMENTS LIMITED, NEW PRIME EQUITY LIMITED,
EQUIPMENT INVESTMENTS LIMITED, EQUIPMENT HOLDINGS LIMITED, EQUIPMENT EQUITY
LIMITED, and ZINNIA LIMITED (each a Cayman Islands corporation and together
with Chase Nominees (Guernsey) Limited each referred to as an "International
Investor," and, collectively, the "International Investors").
W I T N E S S E T H:
WHEREAS, concurrently herewith, Parent, PS Acquisition Corp., a
Delaware corporation and a wholly owned subsidiary of Parent ("Newco"), and
Prime Service, Inc., a Delaware corporation (the "Company"), will enter into
an Agreement and Plan of Merger of even date herewith (as such agreement may
be amended from time to time, the "Merger Agreement"; capitalized terms used
but not defined herein shall have the meanings set forth in the Merger
Agreement), pursuant to which (and subject to the terms and conditions
specified therein) Newco will be merged with and into the Company, with the
Company continuing as the surviving corporation and as a wholly owned
subsidiary of Parent (the "Merger"), whereby each share of common stock, par
value $0.01 per share, of the Company ("Company Common Stock") issued and
outstanding immediately prior to the Effective Time of the Merger will be
converted into the right to receive the Merger Consideration, other than (i)
shares of Company Common Stock owned, directly or indirectly, by the Company
or any subsidiary of the Company or by Parent, Newco or any other Affiliate
of Parent and (ii) Dissenting Shares; and
WHEREAS, as a condition to Parent and Newco entering into the Merger
Agreement, Parent requires that each International Investor enter into, and
each International Investor has agreed to enter into, this Agreement with
Parent;
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NOW, THEREFORE, in consideration of the representations and
warranties and covenants set forth herein and in the Merger Agreement, Parent
and the International Investors, each intending to be legally bound, hereby
agree as follows:
1. Representations and Warranties of the International Investors. Each
International Investor hereby represents and warrants to Parent as follows:
1.1 Organization; Authorization; Validity of Agreement. Such
International Investor is a corporation duly organized and validly existing
under the laws of its jurisdiction of incorporation and has the corporate
power and authority to enter into this Agreement and to carry out its
obligations hereunder. The execution and delivery of this Agreement by such
International Investor and the consummation by such International Investor of
the transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of such International Investor and no
other corporate proceedings on the part of such International Investor are
necessary to authorize this Agreement or any of the transactions contemplated
hereby. This Agreement has been duly executed and delivered by such
International Investor and constitutes a valid and binding obligation of such
International Investor enforceable against such International Investor in
accordance with its terms, except that (a) such enforcement may be subject to
applicable bankruptcy, insolvency or other similar laws, now or hereafter in
effect, affecting creditors' rights generally, and (b) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject
to equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
1.2 Consents and Approvals; No Violations. The execution, delivery
and performance of this Agreement by such International Investor shall not
(a) conflict with or result in any breach of the certificate of
incorporation, by-laws or other corporate organizational documents of such
International Investor, (b) result in a violation or breach of, or constitute
(with or without notice or lapse of time or both) a default (or give rise to
any third party right of termination, cancellation, material modification or
acceleration) under any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, license, contract, commitment, arrangement,
understanding, agreement or other instrument or obligation of any kind to
which such International Investor is a party or by which such International
Investor or any of its properties or assets is bound or affected or (c)
violate any order, writ, injunction, decree, judgment, statute, rule or
regulation applicable to such International Investor or any of its properties
or assets. No consent, approval, order or authorization of, or registration,
declaration or filing with, or notice to, any state, federal or foreign
public body or authority is required by or with respect to such International
Investor in connection with the execution and delivery of this Agreement by
such International Investor or the consummation by such International
Investor of any of the transactions contemplated by this Agreement.
1.3 Ownership of International Shares. (a) Such International
Investor is the record and/or beneficial owner of that number of shares of
Company Common Stock set forth opposite such International Investor's name on
Annex 1 attached hereto (such shares hereinafter referred to as the "Existing
Shares," and together with any shares of Company Common Stock acquired of
record or beneficially by such International Investor in any
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capacity after the date hereof and prior to the termination hereof, whether
upon exercise of options, conversion of convertible securities, purchase,
exchange or otherwise, referred to as the "International Shares").
(b) On the date hereof, the Existing Shares constitute all of
the outstanding shares of Company Common Stock owned of record and/or
beneficially by such International Investors.
(c) Such International Investor has sole power of disposition
with respect to all of the Existing Shares owned by it and sole voting
power with respect to the matters set forth in Section 3.1 hereof and
sole power to demand dissenter's or appraisal rights, in each case with
respect to all of the Existing Shares owned by it with no restrictions on
such rights, subject to applicable federal securities laws and the terms
of this Agreement.
(d) Such International Investor will have sole power of
disposition with respect to shares of Company Common Stock other than
Existing Shares, if any, which become beneficially owned by such
International Investor and will have sole voting power with respect to
the matters set forth in Section 3.1 hereof and sole power to demand
dissenter's or appraisal rights, in each case with respect to all such
shares, if any, which become beneficially owned by such International
Investor with no restrictions on such rights, subject to applicable
federal securities laws and the terms of this Agreement.
1.4 No Encumbrances. The Existing Shares and the certificates
representing such shares are now, and the International Shares and the
certificates representing such shares at all times during the term hereof
will be, held by such International Investor, free and clear of all claims,
liens, charges, security interests, proxies, voting trusts or agreements,
understandings or arrangements and any other encumbrances of any kind or
nature whatsoever, except as otherwise provided in this Agreement.
1.5 Brokers and Intermediaries. No broker, investment banker,
financial adviser or other person is entitled to any broker's, finder's,
financial advisor's or other similar fee or commission in connection with the
transactions contemplated hereby based upon arrangements made by or on behalf
of such International Investor.
1.6 Reliance. Such International Investor understands and
acknowledges that Parent and Newco are entering into the Merger Agreement in
reliance upon such International Investor's execution and delivery of this
Agreement with Parent.
2. Representations and Warranties of Parent. Parent hereby represents
and warrants to the International Investors as follows:
2.1 Organization; Authorization; Validity of Agreement. Parent is
a corporation duly organized, validly existing and in good standing under the
laws of Delaware and has the corporate power and authority to enter into this
Agreement and to carry out its obligations hereunder. The execution and
delivery of this Agreement by Parent and the
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consummation by Parent of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of Parent and no
other corporate proceedings on the part of Parent are necessary to authorize
this Agreement or any of the transactions contemplated hereby. This
Agreement has been duly executed and delivered by Parent and constitutes a
valid and binding obligation of Parent enforceable against Parent in
accordance with its terms, except that (a) such enforcement may be subject to
applicable bankruptcy, insolvency or other similar laws, now or hereafter in
effect, affecting creditors' rights generally, and (b) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject
to equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
2.2 Consents and Approvals; No Violations. The execution, delivery
and performance of this Agreement by Parent shall not (a) conflict with or
result in any breach of the certificate of incorporation or by-laws of
Parent, (b) result in a violation or breach of, or constitute (with or
without notice or lapse of time or both) a default (or give rise to any third
party right of termination, cancellation, material modification or
acceleration) under any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, license, contract, commitment, arrangement,
understanding, agreement or other instrument or obligation of any kind to
which Parent is a party or by which Parent or any of its properties or assets
is bound or affected or (c) violate any order, writ, injunction, decree,
judgment, statute, rule or regulation applicable to Parent or any of Parent's
properties or assets. Except as provided in the Merger Agreement, no
consent, approval, order or authorization of, or registration, declaration or
filing with, or notice to, any state, federal or foreign public body or
authority is required by or with respect to Parent in connection with the
execution and delivery of this Agreement by Parent or the consummation by
Parent of any of the transactions contemplated by this Agreement.
3. Agreement to Vote; Proxy.
3.1 Voting. Each International Investor hereby agrees that, until
the Termination Date (as defined in Section 9), at any meeting of the
stockholders of the Company, however called, or in connection with any
written consent of the stockholders of the Company, such International
Investor shall vote (or cause to be voted) the International Shares held of
record or beneficially by such party (a) in favor of the Merger, the
execution and delivery by the Company of the Merger Agreement and the
approval of the terms thereof and each of the other actions contemplated by
the Merger Agreement and this Agreement and any actions required in
furtherance hereof and thereof; (b) against any action or agreement that
would result in a breach of any covenant, representation or warranty or any
other obligation or agreement of the Company under the Merger Agreement or
this Agreement; and (c) except as specifically requested in writing by Parent
in advance, against the following actions (other than the Merger and the
transactions contemplated by the Merger Agreement): (i) any extraordinary
corporate transaction, such as a merger, consolidation or other business
combination involving the Company; (ii) a sale, lease or transfer of a
material amount of assets of the Company or reorganization, recapitalization,
dissolution or liquidation of the Company; (iii)(A) any change in the
majority of the board of directors of the Company; (B) any material change in
the present capitalization of the Company or any amendment of the Company's
Certificate of Incorporation or By-Laws; (C) any other material change in the
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Company's corporate structure or business; or (D) any other action which is
intended, or could reasonably be expected, to impede, interfere with, delay,
postpone, discourage or adversely affect the Offer, the Merger or the
transactions contemplated by the Merger Agreement or this Agreement or the
contemplated economic benefits of any of the foregoing. No International
Investor shall enter into any agreement or understanding with any person or
entity prior to the Termination Date to vote or give instructions after the
Termination Date in any manner inconsistent with clauses (i), (ii) or (iii)
of the preceding sentence.
3.2 PROXY. EACH INTERNATIONAL INVESTOR WHICH IS A RECORD OR
BENEFICIAL OWNER OF ANY OF THE INTERNATIONAL SHARES, HEREBY GRANTS TO, AND
APPOINTS, PARENT AND MARK COHEN, EXECUTIVE VICE PRESIDENT OF PARENT, AND
SIXTEN NORDMARK, GENERAL COUNSEL OF PARENT, IN THEIR RESPECTIVE CAPACITIES AS
OFFICERS OF PARENT, AND ANY INDIVIDUAL WHO SHALL HEREAFTER SUCCEED TO ANY
SUCH OFFICE OF PARENT, AND ANY OTHER DESIGNEE OF PARENT, EACH OF THEM
INDIVIDUALLY, SUCH INTERNATIONAL INVESTOR'S IRREVOCABLE (UNTIL THE
TERMINATION DATE) PROXY AND ATTORNEY-IN-FACT (WITH FULL POWER OF
SUBSTITUTION) TO VOTE THE INTERNATIONAL SHARES AS INDICATED IN SECTION 3.1
ABOVE. EACH INTERNATIONAL INVESTOR INTENDS THIS PROXY TO BE IRREVOCABLE
(UNTIL THE TERMINATION DATE) AND COUPLED WITH AN INTEREST AND WILL TAKE SUCH
FURTHER ACTION AND EXECUTE SUCH OTHER INSTRUMENTS AS MAY BE NECESSARY TO
EFFECTUATE THE INTENT OF THIS PROXY AND HEREBY REVOKES ANY PROXY PREVIOUSLY
GRANTED BY SUCH INTERNATIONAL INVESTOR WITH RESPECT TO THE INTERNATIONAL
SHARES.
4. Certain Covenants of the International Investors. Except in
accordance with the terms of this Agreement, Each International Investor
hereby agrees as follows:
4.1 Tender of International Shares. Each International Investor
agrees to tender and sell to Newco all of the International Shares pursuant
to and in accordance with the terms of the Offer. Each International
Investor agrees that such party shall deliver to the depositary for the
Offer, no later than the fifth Business Day (as defined below) following the
commencement of the Offer pursuant to Section 1.01 of the Merger Agreement, a
letter of transmittal together with any and all certificates representing the
International Shares owned by it. Notwithstanding any term of the Offer to
the contrary, each International Investor agrees not to withdraw any
International Shares tendered into the Offer pursuant to this Section 4.1
during the term of this Agreement. Each International Investor hereby
acknowledges and agrees that Newco's obligation to accept for payment and pay
for the International Shares in the Offer is subject to the terms and
conditions of the Offer. Each International Investor hereby permits Parent
and Newco to publish and disclose in the Offer Documents (including, without
limitation, all documents and schedules filed with the SEC), the identity of
the International Investors and the nature of their commitments, arrangements
and understandings under this Agreement. Notwithstanding anything in this
Section 4.1 to the contrary, the foregoing shall not restrict any director,
officer or employee of an International Investor who is also a director of
the Company from taking actions in such person's capacity as a director of
the Company to the extent and in the circumstances
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permitted by Section 6.07 of the Merger Agreement. For purposes of this
Agreement, "Business Day" shall mean a day on which banks are not required or
authorized to be closed in the City of New York.
4.2 No Solicitation. Prior to the Termination Date, no
International Investor shall (directly or indirectly through advisors, agents
or other intermediaries, nor shall such International Investor authorize or
permit any of their officers, directors, agents, representatives or advisors
to (a) solicit, initiate or take any action knowingly to facilitate the
submission of inquiries, proposals or offers from any Person (other than
Parent or any of its affiliates) relating to any Transaction Proposal or (b)
enter into or participate in any discussions or negotiations regarding any of
the foregoing, or furnish to any other Person any information with respect to
the business, properties or assets or any of the foregoing, or otherwise
cooperate in any way with, or knowingly assist or participate in, facilitate
or encourage, any effort or attempt by any other Person (other than Parent or
any of its affiliates) to do or seek any of the foregoing; provided, however,
that the foregoing shall not restrict any director, officer or employee of an
International Investor who is also a director of the Company from taking
actions in such person's capacity as a director of the Company to the extent
and in the circumstances permitted by Section 6.07 of the Merger Agreement.
If an International Investor receives any such inquiry or proposal, then such
International Investor shall promptly inform Parent of the terms and
conditions, if any, of such inquiry or proposal and the identity of the
person making it. Each International Investor will immediately cease and
cause its advisors, agents and other intermediaries to cease any and all
existing activities, discussions or negotiations with any parties conducted
heretofore with respect to any of the foregoing, and shall use its reasonable
best efforts to cause any such parties in possession of confidential
information about the Company that was furnished by or on behalf of the
Company to return or destroy all such information in the possession of any
such party or in the possession of any agent or advisor of such party.
4.3 Restriction on Transfer, Proxies and Non-Interference;
Restriction on Withdrawal. Prior to the Termination Date, no International
Investor shall directly or indirectly: (a) except pursuant to the terms of
the Offer and the Merger Agreement, and to Parent pursuant to this Agreement,
offer for sale, sell, transfer, tender, pledge, encumber, assign or otherwise
dispose of, enforce or permit the execution of the provisions of any
redemption agreement with the Company or enter into any contract, option or
other arrangement or understanding with respect to or consent to the offer
for sale, sale, transfer, tender, pledge, encumbrance, or other disposition
of, or exercise any discretionary powers to distribute, any or all of the
International Shares owned by it or any interest therein; (b) except as
contemplated hereby, grant any proxies or powers of attorney with respect to
any International Shares, deposit any International Shares into a voting
trust or enter into a voting agreement with respect to any International
Shares; or (c) take any action that would make any representation or warranty
of any International Investor contained herein untrue or incorrect or have
the effect of preventing or disabling any International Investor from
performing its obligations under this Agreement.
4.4 Waiver of Appraisal and Dissenter's Rights. Each International
Investor hereby waives any rights of appraisal or rights to dissent from the
Merger that such International Investor may have.
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<PAGE>
5. Third Party Business Combination; Remedy.
(a)(i) If the Merger Agreement is terminated in accordance with
Section 8.01(e) or Section 8.01(f) of the Merger Agreement, and, upon or
following any such termination, any International Investor receives from any
Person (other than Parent, Newco or any of their affiliates) any cash or
non-cash consideration in an amount greater than $32.00 per share (the "Third
Party Consideration") in respect of all or any portion of the International
Shares in connection with or following any public announcement of a Third
Party Business Combination (as defined below) during the period commencing on
the date hereof and ending twelve months from the date the Merger Agreement
is terminated (provided that the contract or agreement relating to such Third
Party Business Combination was entered into within six months after the
Merger Agreement is terminated), then such International Investor shall
within two (2) Business Days of receipt thereof pay to Parent or its designee
an aggregate amount equal to one hundred percent (100%) of (A) the excess of
(1) the Third Party Consideration up to and including $36.00 over (2) $32.00
multiplied by (B) the number of International Shares with respect to which
such Third Party Consideration was received, or
(ii) if any International Investor receives from Parent, Newco or
any of their affiliates any cash or non-cash consideration pursuant to the
Offer or otherwise in an amount greater than $32.00 per share (the "Alternate
Consideration") in respect of all or any portion of the International Shares
owned by it following any public announcement of a Third Party Business
Combination (as defined below) during the period commencing on the date
hereof and ending twelve months from the date of such public announcement,
then such International Investor shall within two (2) Business Days of
receipt thereof pay to Parent or its designee an aggregate amount equal to
(A) one hundred percent (100%) of the excess of (1) the Alternate
Consideration up to and including $34.00 over (2) $32.00; and (B) fifty
percent (50%) of the excess, if any, of (1) the Alternate Consideration up to
and including $36.00 over (2) $34.00; in each case multiplied by the number
of International Shares with respect to which such Alternative Consideration
was received;
provided that, in each case, (x) if the consideration received by an
International Investor shall be securities listed on a national securities
exchange or traded on the NASDAQ National Market ("NASDAQ"), the per share
value of such consideration shall be equal to the closing price per share
listed on such national securities exchange or NASDAQ on the date such
transaction is consummated and (y) if the consideration received by an
International Investor shall be in a form other than such listed securities,
the per share value shall be determined in good faith as of the date such
transaction is consummated by Parent or its designee and such International
Investor, or, if Parent or its designee and such International Investor
cannot reach agreement, by a nationally-recognized investment banking firm
reasonably acceptable to the parties. The term "Third Party Business
Combination" with respect to the Company means the occurrence of any of the
following events: (i) the Company or any subsidiary of the Company whose
assets constitute twenty percent (20%) or more of the Company's consolidated
assets is acquired by merger or otherwise by any person or group, other than
Parent or any affiliate thereof (a "Third Party"); (ii) the Company or any
subsidiary of the Company enters into an agreement with a Third Party which
contemplates the acquisition of twenty percent (20%) or more of the total
assets of the Company and its subsidiaries, taken
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<PAGE>
as a whole; (iii) the Company, or any International Investor enters into a
merger or other agreement with a Third Party which contemplates the
acquisition of more than twenty percent (20%) of the outstanding shares of
Company Common Stock; or (iv) a Third Party acquires more than twenty percent
(20%) of the outstanding Company Common Stock.
(b) If, within one hundred eighty (180) days after the acquisition
by Parent, Newco or any of their affiliates (the "Acquiring Company") of the
International Shares for an amount greater than $32.00 per share (as
contemplated by Section 5(a)(ii)), the Acquiring Company sells all or
substantially all of the outstanding shares of capital stock or assets of the
Company, then the Acquiring Company shall within two (2) Business Days of
receipt thereof pay to each International Investor or its designees an amount
equal to the excess of the sales proceeds received by the Acquiring Company
in connection with such sale attributable to the percentage ownership
interest in the Company represented by the International Shares purchased by
the Acquiring Company from such International Investor over the aggregate
price paid by the Acquiring Company to such International Investor for such
International Shares.
6. Further Assurances. From time to time, at any other party's request
and without further consideration, each party hereto shall execute and
deliver such additional documents and take all such further action as may be
necessary or desirable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this
Agreement.
7. Certain Events. Each International Investor agrees that this
Agreement and the obligations hereunder shall attach to all International
Shares and shall be binding upon any person or entity to which legal or
beneficial ownership of such International Shares shall pass, whether by
operation of law or otherwise.
8. Stop Transfer. Each International Investor agrees with, and
covenants to Parent that it shall not request that the Company register the
transfer (book-entry or otherwise) of any certificate or uncertificated
interest representing any of the International Shares.
9. Termination. The obligations of each International Investor under
Sections 3, 4.1, 4.2 , 4.3 and 8.1 shall terminate upon the first to occur of
(a) the Effective Time of the Merger and (b) the date the Merger Agreement is
terminated in accordance with its terms (such earlier date being the
"Termination Date"). Except as set forth in this Section 9, all other
agreements and obligations of the parties hereto shall survive the Effective
Time of the Merger and/or the Termination Date, as applicable, and in the
case of Section 5 hereof, to the extent set forth in such section.
10. Miscellaneous.
10.1 Entire Agreement; Assignment. This Agreement (a) constitutes
the entire agreement between the parties with respect to the subject matter
hereof and supersedes all other prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter
hereof and (b) shall not be assigned by operation of law or
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<PAGE>
otherwise without the prior written consent of the other parties, provided
that Parent may assign, in its sole discretion, its rights and obligations
hereunder to any affiliate of Parent, but no such assignment shall relieve
Parent of its obligations hereunder if such assignee does not perform such
obligations.
10.2 Amendments. This Agreement may not be modified, amended,
altered or supplemented, except upon the execution and delivery of a written
agreement executed by the parties hereto.
10.3 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telegram,
telex or telecopy, or by mail (registered or certified mail, postage prepaid,
return receipt requested) or by any courier service, such as Federal Express,
providing proof of delivery. All communications hereunder shall be delivered
to the respective parties at the following addresses:
(a) if to Parent,to
Atlas Copco North America Inc.
1211 Hamburg Turnpike
Suite 214
Wayne, New Jersey 07470
Telephone: (973) 633-8600
Telecopy: (973) 633-9722
Attention: Mr. Mark Cohen
with a copy to
Winthrop, Stimson, Putnam & Roberts
One Battery Park Plaza
New York, New York 10004-1490
Telephone: (212) 858-1000
Telecopy: (212) 858-1500
Attention: Stephen R. Rusmisel, Esq.
(b) if to the International Investors or any of them, to
c/o Investcorp Management Services Limited
P.O. Box 5430
Investcorp House
Manama, Bahrain
Telephone: 011 973 532 000
Telecopy: 011 973 530 816
-9-
<PAGE>
Attention: H. Richard Lukens, III
with a copy to:
Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, New York 10166-0193
Telephone: (212) 351-4000
Telecopy: (212) 351-4035
Attention: E. Michael Greaney, Esq.
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
10.4 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflicts
of laws thereof.
10.5 Enforcement. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached.
It is accordingly agreed that the parties shall be entitled to an injunction
or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions of this Agreement.
10.6 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of
which shall constitute one and the same Agreement.
10.7 Descriptive Headings. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part of
or to affect the meaning or interpretation of this Agreement.
10.8 Severability. Whenever possible, each provision or portion of
any provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of
any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or portion of any provision in such jurisdiction, and
this Agreement will be reformed, construed and enforced in such jurisdiction
as if such invalid, illegal or unenforceable provision or portion of any
provision had never been contained herein.
10.9 Definitions. For purposes of this Agreement:
(a) "beneficially own" or "beneficial ownership" with respect to
any securities shall mean having "beneficial ownership" of such securities
(as determined pursuant to Rule 13d-3 under the Exchange Act), including
pursuant to any agreement,
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<PAGE>
arrangement or understanding, whether or not in writing. Without duplicative
counting of the same securities by the same holder, securities beneficially
owned by a Person shall include securities Beneficially Owned by all other
Persons with whom such Person would constitute a "group" as described in
Section 13(d)(3) of the Exchange Act.
(b) "Person" shall mean an individual, corporation, limited
liability company, partnership, joint venture, association, trust,
unincorporated organization or other entity.
(c) In the event of a stock dividend or distribution, or any change
in the Company Common Stock by reason of any stock dividend, split-up,
recapitalization, combination, exchange of shares or the like, the term
"International Shares" shall be deemed to refer to and include the
International Shares as well as all such stock dividends and distributions
and any shares into which or for which any or all of the International Shares
may be changed or exchanged.
10.10 Stockholder Capacity. Notwithstanding anything herein to the
contrary, no person who is a director, officer or employee of an
International Investor who is, or becomes during the term hereof, a director
of the Company makes any agreement or understanding herein in his or her
capacity as such director, and the agreements set forth herein shall in no
way restrict any director in the exercise of his or her fiduciary duties as a
director of the Company. Each International Investor has executed this
Agreement solely in its capacity as the record and/or beneficial holder of
International Shares.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
ARLINGTON LIMITED BALLET LIMITED
By: /s/ By: /s/ H. Richard Lukens III
-------------------------------- ---------------------------------
Name: Martonmere Services Ltd. Name: H. Richard Lukens III
Title: Director Title: Authorized Signatory
CHASE NOMINEES (GUERNSEY) DENARY LIMITED
LIMITED
By: /s/ A. Williams By: /s/ H. Richard Lukens III
-------------------------------- ---------------------------------
Name: A. Williams Name: H. Richard Lukens III
Title: Secretary Title: Authorized Signatory
EQUIPMENT RENTAL LIMITED EQUITY PEA LIMITED
By: /s/ Sydney J. Coleman By: /s/ Sydney J. Coleman
-------------------------------- ---------------------------------
Name: Sydney J. Coleman Name: Sydney J. Coleman
Title: The Director Ltd. Director Title: The Director Ltd. Director
EQUITY PEB LIMITED EQUITY PEC LIMITED
By: /s/ Sydney J. Coleman By: /s/ Sydney J. Coleman
-------------------------------- ---------------------------------
Name: Sydney J. Coleman Name: Sydney J. Coleman
Title: The Director Ltd. Director Title: The Director Ltd. Director
EQUITY PED LIMITED FREEPORT LIMITED
By: /s/ Sydney J. Coleman By: /s/
-------------------------------- ---------------------------------
Name: Sydney J. Coleman Name: Martonmere Services Ltd.
Title: The Director Ltd. Director Title: Director
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<PAGE>
GLEAM LIMITED HIGHLANDS LIMITED
By: /s/ H. Richard Lukens III By: /s/ H. Richard Lukens III
------------------------------ -------------------------------
Name: H. Richard Lukens III Name: H. Richard Lukens III
Title: Authorized Signatory Title: Authorized Signatory
INVESTCORP INVESTMENT EQUITY LAPORTE LIMITED
LIMITED
By: /s/ Sydney J. Coleman By: /s/
------------------------------ --------------------------------
Name: Sydney J. Coleman Name: Martonmere Services Ltd.
Title: The Director Ltd. Director Title: Director
NOBLE LIMITED OUTRIGGER LIMITED
By: /s/ H. Richard Lukens III By: /s/ H. Richard Lukens III
------------------------------ --------------------------------
Name: H. Richard Lukens III Name: H. Richard Lukens III
Title: Authorized Signatory Title: Authorized Signatory
PLANO LIMITED QUILL LIMITED
By: By: /s/ H. Richard Lukens III
------------------------------ --------------------------------
Name: Martonmere Services Ltd. Name: H. Richard Lukens III
Title: Director Title: Authorized Signatory
RADIAL LIMITED SHORELINE LIMITED
By: /s/ H. Richard Lukens III By: /s/ H. Richard Lukens III
------------------------------ ---------------------------------
Name: H. Richard Lukens III Name: H. Richard Lukens III
Title: Authorized Signatory Title: Authorized Signatory
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<PAGE>
RENTAL EQUITY LIMITED PRIME HOLDINGS LIMITED
By: /s/ Ray Iler By: /s/ Rory Mohammed
----------------------------- -------------------------------
Name: Ray Iler Name: Rory Mohammed
Title: Director Title: Alternate Director
PRIME EQUITY LIMITED PE INVESTMENTS LIMITED
By: /s/ Sydney J. Coleman By: /s/ Christopher J. Bowring
----------------------------- -------------------------------
Name: Sydney J. Coleman Name: Christopher J. Bowring
Title: The Director Ltd. Director Title: Director
PE HOLDING LIMITED NEW PRIME INVESTMENTS LIMITED
By: /s/ Michael Pilling By: /s/ Simon James
----------------------------- -------------------------------
Name: Michael Pilling Name: Simon James
Title: Director Title: Director
NEW PRIME EQUITY LIMITED EQUIPMENT INVESTMENTS LIMITED
By: /s/ Jessie Bush By: /s/ Dale Babiuk
----------------------------- -------------------------------
Name: Jessie Bush Name: Dale Babiuk
Title: Director Title: Director
EQUIPMENT HOLDINGS LIMITED EQUIPMENT EQUITY LIMITED
By: /s/ Mark Rutkowski By: /s/ Glen Wigney
----------------------------- -------------------------------
Name: Mark Rutkowski Name: Glen Wigney
Title: Director Title: Director
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<PAGE>
ZINNIA LIMITED RENTAL HOLDINGS LIMITED
By: /s/ H. Richard Lukens III By: /s/ Bruce Stirling
--------------------------- --------------------------
Name: H. Richard Lukens III Name: Bruce Stirling
Title: Authorized Signatory Title: Director
FLEET EQUITY LIMITED ATLAS COPCO NORTH AMERICA INC.
By: /s/ Richard E. Douglas By: /s/ Mark Cohen
--------------------------- --------------------------
Name: Richard E. Douglas Name: Mark Cohen
Title: Director Title: Exec. V.P.
-15-
