-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, PTMF1Y3RR5LWNNmPM6n5IngSXlCFEflarS2f8V+eBLnCWICZgqr/YLZ7OmTeQblC bW8mImcuyfpsqJVXhfCg1w== 0000950172-99-000561.txt : 19990517 0000950172-99-000561.hdr.sgml : 19990517 ACCESSION NUMBER: 0000950172-99-000561 CONFORMED SUBMISSION TYPE: SC 14D1/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19990514 GROUP MEMBERS: UNITED RENTALS INC /DE GROUP MEMBERS: UR ACQUISITION CORPORATION SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: RENTAL SERVICE CORP CENTRAL INDEX KEY: 0001016572 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-EQUIPMENT RENTAL & LEASING, NEC [7359] IRS NUMBER: 330569350 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 14D1/A SEC ACT: SEC FILE NUMBER: 005-49011 FILM NUMBER: 99621262 BUSINESS ADDRESS: STREET 1: 6929 EAST GREENWAY PARKWAY STREET 2: STE 200 CITY: SCOTTSDALE STATE: AZ ZIP: 85254 BUSINESS PHONE: 6029053300 MAIL ADDRESS: STREET 1: 6929 GREENWAY PARKWAY STREET 2: SUITE 200 CITY: SCOTTSDALE STATE: AZ ZIP: 85254 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: UNITED RENTALS INC /DE CENTRAL INDEX KEY: 0001067701 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-EQUIPMENT RENTAL & LEASING, NEC [7359] IRS NUMBER: 061522496 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 14D1/A BUSINESS ADDRESS: STREET 1: FOUR GREENWICH OFFICE PARK CITY: GREENWICH STATE: CT ZIP: 06830 BUSINESS PHONE: 2036223131 MAIL ADDRESS: STREET 1: FOUR GREENWICH OFFICE PARK CITY: GREENWICH STATE: CT ZIP: 06830 SC 14D1/A 1 SCHEDULE 14D1 AMENDMENT NO. 13 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 14D-1 AMENDMENT NO. 13 Tender Offer Statement Pursuant to Section 14(d)(1) of the Securities Exchange Act of 1934 RENTAL SERVICE CORPORATION (Name of Subject Company) UR ACQUISITION CORPORATION UNITED RENTALS, INC. (Bidders) COMMON STOCK, PAR VALUE $.01 PER SHARE (Title of Class of Securities) 76009V 10 2 (CUSIP Number of Class of Securities) UNITED RENTALS, INC. FOUR GREENWICH OFFICE PARK GREENWICH, CT 06830 ATTENTION: BRADLEY S. JACOBS CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER TELEPHONE: (203) 622-3131 FACSIMILE: (203) 622-6080 (Name, Address and Telephone Number of Person authorized to Receive Notices and Communications on Behalf of Bidders) COPY TO: MILTON G. STROM, ESQ. SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP 919 THIRD AVENUE NEW YORK, NEW YORK 10022-3897 TELEPHONE: (212) 735-3000 FACSIMILE: (212) 735-2000 UR Acquisition Corporation, a Delaware corporation (the "Purchaser") and a wholly owned subsidiary of United Rentals, Inc., a Delaware corporation ("Parent"), and Parent hereby amend and supplement their Tender Offer Statement on Schedule 14D-1 (as amended from time to time, the "Schedule 14D-1"), filed with the Securities and Exchange Commission (the "Commission") on April 5, 1999, with respect to the Purchaser's offer to purchase all of the shares of common stock, par value $0.01 per share (collectively with the associated preferred stock purchase rights (the "Rights") issued pursuant to the Rights Agreement, dated as of April 16, 1999 (the "Rights Agreement"), between Rental Service Corporation and ChaseMellon Shareholder Services, L.L.C., the "Shares"), of Rental Service Corporation, a Delaware corporation (the "Company"), at a price of $22.75 per Share, net to the seller in cash (such price, or such higher price per Share as may be paid in the Offer, the "Offer Price"), upon the terms and subject to the conditions set forth in the Offer to Purchase and in the related Letter of Transmittal (which, as amended from time to time, together constitute the "Offer"). Unless otherwise indicated herein, each capitalized term used but not defined herein shall have the meaning ascribed to such term in the Schedule 14D-1 or in the Offer to Purchase referred to therein. ITEM 10. ADDITIONAL INFORMATION. The information set forth in Item 10(e) of the Schedule 14D-1 is hereby amended and supplemented by the following information: On May 11, 1999, NationsRent filed a motion for summary judgment (the "NationsRent Summary Judgment Motion") with respect to the litigation initiated by Parent and Purchaser in the Chancery Court of the State of Delaware (the "Delaware Court") on April 5, 1999. The NationsRent Summary Judgment Motion attempts to dismiss Parent's and Purchaser's claims against NationsRent set forth in Parent's and Purchaser's first amended and supplemental complaint filed in the Delaware Court on May 10, 1999. Parent believes the NationsRent Summary Judgment Motion is without merit and intends to vigorously defend against this action. The text of the NationsRent Summary Judgment Motion, a copy of which is filed as Exhibit (g)(13) hereto, is incorporated by reference herein. On May 13, 1999, Parent and Purchaser filed a memorandum of law in opposition to the Company's motion for a preliminary injunction (the "Preliminary Injunction Opposition Motion") with respect to the Company's Clayton Act counterclaims in the litigation initiated by Parent and Purchaser in the United States District Court for the District of Connecticut (the "Connecticut Court"). In the Preliminary Injunction Opposition Motion, Parent states that the Connecticut Court should reject the Company's motion for a preliminary injunction because the Company cannot satisfy any of the standards required to be met for the issuance of a preliminary injunction. The text of the Preliminary Injunction Opposition Motion, a copy of which is filed as Exhibit (g)(14) hereto, is incorporated by reference herein. The information set forth in Item 10(f) of the Schedule 14D-1 is hereby amended and supplemented by the following information: On May 13, 1999, Parent commenced mailing its Consent Solicitation Statement to stockholders of record of the Company as of the close of business on May 13, 1999. Unless otherwise indicated herein, each capitalized term used but not defined herein shall have the meaning ascribed to such term in the Schedule 14D-1 or in the Offer to Purchase referred to therein. ITEM 11. MATERIALS TO BE FILED AS EXHIBITS. (g)(13) Motion for Summary Judgment, dated May 11, 1999, filed by NationsRent in the Court of Chancery of the State of Delaware. (g)(14) Memorandum of Law in Opposition to the Company's Motion for a Preliminary Injunction, dated May 13, 1999, filed by Parent and Purchaser in the United States District Court for the District of Connecticut. SIGNATURE After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. UR Acquisition Corporation By: /s/ John N. Milne ------------------------- Name: John N. Milne Title: President United Rentals, Inc. By: /s/ Bradley S. Jacobs ------------------------- Name: Bradley S. Jacobs Title: Chairman and Chief Executive Officer Date: May 13, 1999 INDEX TO EXHIBITS EXHIBIT NUMBER EXHIBIT -------- ------- (g)(13) Motion for Summary Judgment, dated May 11, 1999, filed by NationsRent in the Court of Chancery of the State of Delaware. (g)(14) Memorandum of Law in Opposition to the Company's Motion for a Preliminary Injunction, dated May 13, 1999, filed by Parent and Purchaser in the United States District Court for the District of Connecticut. EX-99 2 EXHIBIT (G)(13) - MOTION FOR SUMMARY JUDGMENT IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY UR ACQUISITION CORPORATION, a Delaware ) corporation, and UNITED RENTALS, INC., a ) Delaware corporation, ) ) Plaintiffs, ) ) v. ) Civil Action No. 17090NC ) MARTIN R. REID, WILLIAM M. BARNUM, JR., ) JAMES R. BUCH, DAVID P. LANOHA, ) CHRISTOPHER A. LAURENCE, ERIC L. ) MATTSON, BRITTON H. MURDOCH, JOHN M. ) SULLIVAN, RENTAL SERVICE CORPORATION, a ) Delaware corporation, and NATIONSRENT, INC., a ) Delaware corporation, ) ) Defendants. ) ) ) NOTICE OF MOTION TO: David J. Margules, Esquire Lewis H. Lazarus, Esquire Wolf, Block, Schorr & Solis-Cohen LL Morris, James, Hitchens & Williams 920 Market Street 222 Delaware Avenue One Rodney Square, 3rd Floor Wilmington, Delaware 19801 Wilmington, DE 19801 Edward P. Welch, Esquire Skadden, Arps, Slate, Meagher & Flom One Rodney Square, 7th Floor Wilmington, DE 19801 PLEASE TAKE NOTICE that the attached Motion for Summary Judgment will be presented to the Court at the earliest convenience of Court and counsel. OF COUNSEL: /s/ Daniel A. Dreisbach ------------------------------------ Jesse A. Finkelstein William Snipes Daniel A. Dreisbach Sullivan & Cromwell Srinivas M. Raju 125 Broad Street Holly June Stiefel New York, New York 10004 Richards, Layton & Finger (212) 558-4000 One Rodney Square P.O. Box 551 Wilmington, Delaware 19899 (302) 658-6541 Attorneys for Defendant NationsRent, Inc. Dated: May 11, 1999 IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY UR ACQUISITION CORPORATION, a Delaware ) corporation, and UNITED RENTALS, INC., a ) Delaware corporation, ) ) Plaintiffs, ) ) v. ) Civil Action No. 17090NC ) MARTIN R. REID, WILLIAM M. BARNUM, JR., ) JAMES R. BUCH, DAVID P. LANOHA, ) CHRISTOPHER A. LAURENCE, ERIC L. ) MATTSON, BRITTON H. MURDOCH, JOHN M. ) SULLIVAN, RENTAL SERVICE CORPORATION, a ) Delaware corporation, and NATIONSRENT, INC., a ) Delaware corporation, ) ) Defendants. ) ) ) MOTION FOR SUMMARY JUDGMENT NationsRent, Inc. ("NationsRent") by its undersigned counsel, hereby moves pursuant to Court of Chancery rule 56 for summary judgment against Plaintiffs on the grounds that there is no genuine issue of material fact and that NationsRent is entitled to judgment as a matter of law. The grounds for this motion are set forth more fully in NationsRent's brief to be filed contemporaneously herewith. OF COUNSEL: /s/ Daniel A. Dreisbach ------------------------------------ Jesse A. Finkelstein William Snipes Daniel A. Dreisbach Sullivan & Cromwell Srinivas M. Raju 125 Broad Street Holly June Stiefel New York, New York 10004 Richards, Layton & Finger (212) 558-4000 One Rodney Square P.O. Box 551 Wilmington, Delaware 19899 (302) 658-6541 Attorneys for Defendant NationsRent, Inc. Dated: May 11, 1999 IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY UR ACQUISITION CORPORATION, a Delaware ) corporation, and UNITED RENTALS, INC., a ) Delaware corporation, ) ) Plaintiffs, ) ) v. ) Civil Action No. 17090NC ) MARTIN R. REID, WILLIAM M. BARNUM, JR., ) JAMES R. BUCH, DAVID P. LANOHA, ) CHRISTOPHER A. LAURENCE, ERIC L. ) MATTSON, BRITTON H. MURDOCH, JOHN M. ) SULLIVAN, RENTAL SERVICE CORPORATION, a ) Delaware corporation, and NATIONSRENT, INC., a ) Delaware corporation, ) ) Defendants. ) ) ) ORDER Upon the motion by NationsRent, Inc. ("NationRent") for summary judgment, the Court having considered the motion and arguments of the parties: IT IS HEREBY ORDERED this ____ day of _______________, 1999, that NationsRent's motion for summary judgment is hereby GRANTED. ___________________________________ Vice Chancellor CERTIFICATE OF SERVICE I hereby certify this 11th day of May, 1999, that I caused copies of the foregoing documents to be served by hand upon the following counsel: Lewis H. Lazarus, Esquire Morris, James, Hitchens & Williams 222 Delaware Avenue Wilmington, DE 19801 Edward P. Welch, Esquire Skadden, Arps, Slate, Meagher & Flom LLP One Rodney Square Wilmington, DE 19801 David J. Margules, Esquire Wolf, Block, Schorr & Solis-Cohen LLP Suite 300 920 King Street Wilmington, DE 19801 /s/ Srinivas Raju ---------------------------------- Srinivas Raju EX-99 3 EXHIBIT (G)(14) - PRELIMINARY INJUNCTION OPPOSITION MOTION UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT UR ACQUISITION CORPORATION : and UNITED RENTALS, INC., : : Plaintiffs, : : CIVIL ACTION NO. -against- : 399CV00625(DJS) : JAMES L. KIRK, RENTAL SERVICE : CORPORATION, and NATIONSRENT, : INC., : : Defendants. : May 13, 1999 MEMORANDUM OF LAW IN OPPOSITION TO RENTAL SERVICE CORPORATION'S MOTION FOR A PRELIMINARY INJUNCTION Plaintiffs and Counter Defendants UR Acquisition Corporation and United Rentals, Inc. (collectively, "United Rentals") and individual Counter Defendants Bradley S. Jacobs, Richard J. Heckmann, Wayland R. Hicks, John N. Milne, Michael J. Nolan and Gerald Tsai, Jr. (collectively the "Individual Defendants") respectfully submit this memorandum of law in opposition to the Motion for a Preliminary Injunction dated April 22, 1999 by Defendant Rental Service Corporation ("Rental Service"). Defendant and Counter Plaintiff Rental Service seeks a preliminarily injunction barring United Rentals from electing the Individual Defendants to the Board of Directors of Rental Service on the ground that they would create an officer or director interlock allegedly in violation of Section 8 of the Clayton Act, 15 U.S.C. section 19. However, as discussed below, the Individual Defendants are former nominees; they have been replaced by six independent nominees who are neither officers nor directors of United Rentals. Therefore, Rental Service's Motion for a Preliminary Injunction must be denied because, without an interlock, Rental Service cannot demonstrate irreparable harm, or a likelihood of success on the merits of its claims, or sufficiently serious questions going to the merits to make such claims a fair ground for litigation, or that the balance of hardships tips decidedly in its favor.(1) STATEMENT OF FACTS United Rentals is a Delaware corporation with its principal executive offices in Greenwich, Connecticut. Declaration of Robin L. Smith ("Smith Decl.") paragraph 3. Rental Service is a Delaware Corporation with its principal executive offices in Scottsdale, Arizona. Rental Service Memorandum of Points and Authorities at 2. On April 5, 1999, United Rentals commenced a non-discriminatory, non-coercive, all cash offer to purchase all outstanding shares of Rental Service common stock at a price of $22.75 per share, representing a 32% premium over the closing price of such shares on the last trading day prior to the offer ("Tender Offer"). On that day, United Rentals filed with the SEC the following documents and information required to be disclosed by Section 14(d) of the Securities Exchange Act of 1934 and the rules and regulations promulgated thereunder: a Schedule 14D-1, together with exhibits thereto, including an Offer to Purchase dated April 5, 1999, Summary Advertisement dated April 5, 1999, Press Release dated April 5, 1999, and Commitment Letter from Goldman Sachs Credit Partners L.P. dated April 4, 1999. United Rentals also took steps to exercise its rights to solicit other Rental Service shareholders to act by written consent to replace the Rental Service Board of Directors. On April 13, 1999, United Rentals filed a preliminary Schedule 14A Consent Solicitation Statement with the Securities and Exchange Commission ("SEC") (attached as Exhibit A to Smith Decl.), which included nine proposed nominees to the Rental Service Board of Directors, six of whom were the Individual Defendants. In an April 19, 1999 letter to Rental Service (received by Rental Service prior to the time Rental Service filed its amended counterclaims and motion for a preliminary injunction), United Rentals identified six alternate nominees for election -------------------- (1) On April 29, 1999, United Rentals moved to dismiss Rental Service's Amended Counterclaims pursuant to Federal Rule of Civil Procedure 12(b)(6). That motion is pending before this Court. to the Rental Service Board of Directors who would serve if its nominees, including the Individual Defendants, were "unable or unwilling to serve, or [were] otherwise disqualified from serving, as directors of Rental Service." Exhibit B to Smith Decl.(2) On April 27, 1999, United Rentals replaced the Individual Defendants with the six alternates and filed a revised Schedule 14A Consent Solicitation Statement with the SEC (attached as Exhibit D to Smith Decl.) disclosing this information. On May 13, 1999, United Rentals filed a definitive Schedule 14A Consent Solicitation Statement (attached as Exhibit E to Smith Decl.), which states that United Rentals' "primary purpose in seeking to elect the Nominees to the Rental Service Board is to . . . facilitate the consummation of the [Tender] Offer and the Proposed United Rentals Merger." Exhibit E to Smith Decl. at 3.(3) As this public filing makes absolutely clear, all of the United Rentals nominees now are individuals who are not United Rentals officers or directors. Specifically, the six independent nominees who replaced the Individual Defendants are: William E. Aaron, President of Executive Monetary Management, Inc.; David A. Bronner, Esq., partner in Katten, Muchin and Zavis; Peter Gold, certified public accountant at Peter Gold CPA; David C. Katz, business consultant; Elliot H. Levine, certified public accountant at Levine & Seltzer LLP; and Jeffrey M. Parker, President of Financial Advisory Services of Genesis Capital, Inc. Exhibit E to Smith Decl. at 4-5. ------------------- (2) United Rentals also identified the six alternate nominees in an April 21, 1999 filing with the SEC (also prior to the filing of Rental Service's amended counterclaims and motion for preliminary injunction). United Rentals' Sixth Amend- ment to Schedule 14D-1 (attached as Exhibit C to Smith Decl.). (3) The record date for the consent solicitation is May 13, 1999. Exhibit E to Smith Decl. at iii. ARGUMENT A. THE STANDARD FOR THE ISSUANCE OF A PRELIMINARY INJUNCTION The standard for the issuance of a preliminary injunction is well established in the Second Circuit: "The party seeking the injunction must demonstrate (1) irreparable harm should the injunction not be granted, and (2) either (a) a likelihood of success on the merits, or (b) sufficiently serious questions going to the merits and a balance of hardships tipping decidedly toward the party seeking the injunction." Able v. United States, 44 F.3d 128, 130 (2d Cir. 1995) (citing Resolution Trust Corp. v. Elman, 949 F.2d 624, 626 (2d Cir. 1991)). Because Rental Service cannot satisfy any of the above requirements, its motion for a preliminary injunction must be denied.(4) B. SINCE THERE IS NO PENDING OR THREATENED OFFICER OR DIRECTOR INTERLOCK, RENTAL SERVICE'S MOTION FOR A PRELIMINARY INJUNCTION MUST BE DENIED ON THE MERITS Section 8 of the Clayton Act prohibits any person from serving simultaneously as a director or officer of any two competing corporations if elimination of competition between them would constitute a violation of U.S. antitrust laws. 15 U.S.C. section 19(a)(1); see BankAmerica Corp. v. United States, 462 U.S. 122, 124-28 (1983) (reviewing the history of Section 8); see also White v. Central Vt. Pub. Serv. Corp., 958 F. Supp. 174, 176-78 (D. Vt. 1996) (construing 1990 amendments to Section 8); Protectoseal Co. v. Barancik, 1994-1 Trade Cas. (CCH) paragraph 70,494 (N.D. Ill. 1993) (same), aff'd, 23 F.3d 1184 (7th Cir. 1994).(5) ------------------ (4) Notably, nowhere in its Memorandum of Points and Authorities does Rental Service address the balance of hardships. (5) Section 8 contains certain de minimis exceptions which, given that there are no interlocks, need not be addressed. Even assuming that Rental Service and United Rentals are competitors and do not fall within any of the de minimis exceptions to Section 8, the Individual Defendants are no longer nominees, and the actual nominees do not present a pending or threatened violation of Section 8. Simply put, there is no interlock since no nominee is an officer or director of United Rentals or, for that matter, any firm in the same business as Rental Service. Without such an interlock, Rental Service cannot demonstrate a likelihood of success on the merits of its claims or sufficiently serious questions going to the merits to make such claims a fair ground for litigation. See In re Penn Central Securities Litigation, 367 F. Supp. 1158, 1168 (E.D. Pa. 1973) (Section 8 claims are moot where no interlock exists); see also Fallis v. Ambach, 710 F.2d 49, 54 (2d Cir. 1983) (appellants could not demonstrate a likelihood of success on the merits or sufficiently serious questions going to the merits of their claim because they failed to state a claim upon which relief can be granted). C. RENTAL SERVICE CANNOT DEMONSTRATE THAT IT WILL BE IRREPARABLY HARMED UNDER THE ANTITRUST LAWS BY THE NOMINATION OF NINE INDEPENDENT DIRECTORS In the Second Circuit, irreparable harm is the "single most important prerequisite for the issuance of a preliminary injunction." Rodriguez v. DeBuono, Nos. 97-9152(L) et al., __ F.3d __, 1999 WL 247113, at *4 (2d Cir. Mar. 23, 1999) (per curiam). "The movant must demonstrate an injury that is neither remote nor speculative, but actual and imminent . . . ." Id. "In the absence of a showing of irreparable harm, a motion for a preliminary injunction should be denied." Id. United Rentals has disclosed that its "primary purpose in seeking to elect the Nominees to the Rental Service Board is to . . . facilitate the consummation of the [Tender] Offer and the Proposed United Rentals Merger." Exhibit E to Smith Decl. at 3. The nomination by United Rentals of independent directors who have no interlocks, to achieve this legitimate business purpose, cannot form the basis of "actual and imminent" injury under the antitrust laws. Rental Service argues that it will suffer irreparable harm because the allegedly interlocking directors will "have the effect of lessening competition" between United Rentals and Rental Service. Rental Service Memorandum of Points and Authorities at 9. However, since there are no interlocking directors and therefore no pending or threatened violation of Section 8, Rental Service cannot show any injury, let alone meet the high "actual and imminent" injury standard required for injunctive relief. See United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953) (affirming trial court's refusal to grant injunctive relief where there was no threat of a violation). Finally, United Rentals' nomination of independent directors is part of the public record, and its nominees could not be replaced without having a serious negative impact on the timing and success of its consent solicitation, and ultimately the Tender Offer.(6) As disclosed in the definitive Consent Solicitation Statement dated May 13, 1999: United Rentals believes the Amended Counterclaim and motion for preliminary injunction are without merit and intends to vigorously defend against such motion. However, United Rentals believes that it is in the best interests of Rental Service stockholders that United Rentals be able to move forward expeditiously with its solicitation of consents and afford Rental Service stockholders the opportunity to act on the Proposals. Accordingly, in order to avoid delay in the consent solicitation, each nominee originally designated by United Rentals who is an officer and/or director of United Rentals has withdrawn as a nominee, and a total of nine persons who are not directors or officers of United Rentals or its affiliates have been designated by United Rentals as Nominees. Exhibit E to Smith Decl. at 4. Obviously, there is no "cognizable danger" that an interlock will occur in the future. See W.T. Grant Co., 345 U.S. at 633. Accordingly, since Rental Service cannot show that "relief is needed," SEC v. Keller Indus., Inc., 342 F. Supp. 654, 660 (S.D.N.Y. 1972), it has failed to satisfy its burden and its motion for injunctive relief must be denied. - --------------- (6) The record date for the consent solicitation is May 13, 1999. In order to replace any of its proposed nominees, which United Rentals has no intention of doing, United Rentals would be required, among other things, to request a new record date and modify its consent solicitation statement. D. THE BALANCE OF HARDSHIPS TIPS DECIDEDLY IN FAVOR OF UNITED RENTALS As demonstrated above, Rental Service has completely failed to demonstrate that it will suffer any injury, let alone irreparable injury, if its motion for injunctive relief is denied. In contrast, United Rentals would suffer severe harm from the entry of an injunction: The risk of an erroneous issuance of an injunction under such circumstances must be weighed against the harm, itself perhaps irreparable, the injunction may cause the parties enjoined. There exists the danger that shareholders may view an injunction inaccurately as a final determination of wrongdoing on the part of First Union and influence the election in this way. The equities do not warrant undertaking such a risk here. Unicorp Financial Corp. v. First Union Real Estate Equity & Mortgage Investments, 515 F. Supp. 249, 263 (S.D. Ohio 1981); accord Kennecott Copper Corp. v. Curtiss-Wright Corp., 584 F.2d 1195, 1200 (2d Cir. 1978) ("There is a very strong likelihood, however, that the election results were influenced by the criticism of Curtiss-Wright contained in the district court's election-eve decision."); Pantry Pride, Inc. v. Rooney, 598 F. Supp. 891, 902 (S.D.N.Y. 1984) (drastic relief requested by plaintiff would send wrong message to Pantry Pride stockholders). Since the balance of hardships tips decidedly in favor of United Rentals and Rental Service cannot demonstrate irreparable harm, or a likelihood of success on the merits, or sufficiently serious questions going to the merits to make such claims a fair ground for litigation, Rental Service's motion for injunctive relief must be denied. CONCLUSION For the foregoing reasons, this Court must deny Rental Service's motion for a preliminary injunction. PLAINTIFFS-COUNTER DEFENDANTS UR ACQUISITION CORPORATION and UNITED RENTALS, INC. and COUNTER- DEFENDANTS BRADLEY S. JACOBS, RICHARD J. HECKMANN, WAYLAND R. HICKS, JOHN N. MILNE, MICHAEL J. NOLAN AND GERALD TSAI, JR. By: /s/ Robin L. Smith --------------------------------- Thomas J. Groark, Jr. (ct04245) Richard M. Reynolds (ct06124) Philip S. Wellman (ct09636) Robin L. Smith (ct13345) DAY, BERRY & HOWARD LLP CityPlace I Hartford, Connecticut 06103 (860) 275-0100 OF COUNSEL: Jay B. Kasner Clifford H. Aronson Steven J. Kolleeny SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP 919 Third Avenue New York, New York 10022 (212) 735-3000 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been served on the following counsel and parties this date, via overnight courier: Marc W. Rappel, Esquire LATHAM & WATKINS 633 West Fifth Street Suite 4000 Los Angeles, CA 90071 Joseph B. Frumkin, Esquire SULLIVAN & CROMWELL 125 Broad Street New York, NY 10004 and via hand delivery to: William H. Champlin III, Esquire Mark V. Connolly, Esquire TYLER, COOPER & ALCORN, LLP CityPlace I 35th Floor Hartford, CT 06103-3488 Robert A. Izard, Esquire Bradford S. Babbitt, Esquire ROBINSON & COLE LLP 280 Trumbull Street Hartford, CT 06103-3597 /s/ Robin L. Smith ------------------------------------ Robin L. Smith -----END PRIVACY-ENHANCED MESSAGE-----