EXHIBIT 2.3
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER ("Agreement"), dated as of August 5,
1998, among United Rentals, Inc., a Delaware corporation (the "Company"), United
Rentals Holdings, Inc., a Delaware corporation ("URH") and a direct,
wholly-owned subsidiary of the Company, and United Rentals Merger Co., Inc., a
Delaware corporation ("Mergeco") and a direct, wholly-owned subsidiary of URH.
RECITALS
WHEREAS, as of the close of business on August 4, 1998, the
authorized capital stock of the Company consisted of (i) 75,000,000 shares of
common stock, par value $0.01 per share ("Company Common Stock"), of which
34,535,967 shares were issued and outstanding, 4,429,775 shares were reserved
for issuance under the Company's 1997 Stock Option Plan, 6,519,058 shares were
reserved for issuance in connection with the Company's outstanding warrants,
16,133 shares were reserved for issuance in connection with the Company's 7.0%
convertible notes due October 2002, and no shares were held in treasury, and
(ii) 5,000,000 shares of preferred stock, par value $0.01 per share, of which
none is outstanding.
WHEREAS, as of the date hereof, the authorized capital stock of URH
consists of (i) 75,000,000 shares of common stock, par value $0.01 per share
("URH Common Stock"), of which 1,000 shares are issued and outstanding and no
shares are held in treasury, and (ii) 5,000,000 shares of preferred stock, par
value $0.01 per share, of which none is outstanding.
WHEREAS, the designations, rights, powers and preferences, and the
qualifications, limitations and restrictions thereof, of the URH Common Stock
are the same as those of the Company Common Stock.
WHEREAS, the Certificate of Incorporation and the By-laws of URH
immediately after the Effective Time (as hereinafter defined) will contain
provisions identical to
the Amended and Restated Certificate of Incorporation and By-laws of the Company
immediately before the Effective Time (other than with respect to matters
excepted by Section 251(g) of the General Corporation Law of the State of
Delaware (the "DGCL")).
WHEREAS, the directors of the Company immediately prior to the
Merger (as hereinafter defined) will be the directors of URH as of the Effective
Time.
WHEREAS, URH and Mergeco are newly formed corporations organized for
the purpose of participating in the transactions herein contemplated.
WHEREAS, the Company desires to create a new holding company
structure by merging Mergeco with and into the Company with the Company being
the surviving corporation (sometimes hereinafter referred to as the "Surviving
Corporation"), and converting each outstanding share of Company Common Stock
into one share of URH Common Stock, all in accordance with the terms of this
Agreement.
WHEREAS, the Boards of Directors of URH, Mergeco and the Company
have approved this Agreement and the merger of Mergeco with and into the Company
upon the terms and subject to the conditions set forth in this Agreement (the
"Merger").
NOW, THEREFORE, in consideration of the premises and the covenants
and agreements contained in this Agreement, and intending to be legally bound
hereby, the Company, URH and Mergeco hereby agree as follows:
ARTICLE I
THE MERGER
Section 1.1 The Merger. In accordance with Section 251(g) of the
DGCL and subject to and upon the terms and conditions of this Agreement, Mergeco
shall, at the Effective Time, be merged with and into the Company, the separate
corporate existence of Mergeco shall cease and the Company shall continue as the
surviving corporation. The Company as the surviving corporation after the Merger
is hereinafter sometimes referred to as the "Surviving
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Corporation." At the Effective Time, the effect of the Merger shall be as
provided in Section 259 of the DGCL.
Section 1.2 Effective Time. The Merger shall become effective upon
the filing, on or after the date hereof and on or before August 5, 1998, of a
copy of this Agreement with the Secretary of State of the State of Delaware (the
time of such filing being referred to herein as the "Effective Time").
Section 1.3 Amended and Restated Certificate of Incorporation of the
Surviving Corporation. From and after the Effective Time, the Amended and
Restated Certificate of Incorporation of the Company, as in effect immediately
prior to the Effective Time, shall be the certificate of incorporation of the
Surviving Corporation until thereafter amended as provided by law; provided,
however, that, from and after the Effective Time:
(a) Article I thereof shall be amended so as to read in its entirety
as follows:
"The name of the Corporation is United Rentals (North America),
Inc."
(b) Article III thereof shall be amended so as to read in its
entirety as follows:
"The aggregate number of shares which the Corporation shall have
authority to issue shall be three thousand (3,000), consisting of three thousand
(3,000) shares of Common Stock, par value $0.01 per share."
(c) A new Article XI shall be added thereto which shall be and read
in its entirety as follows:
"Any act or transaction by or involving the Corporation that
requires for its adoption under the General Corporation Law of the State of
Delaware or this certificate of incorporation the approval of the stockholders
of the Corporation shall, by virtue of this reference to Section 251(g) of the
General Corporation Law of the State of Delaware, require, in addition, the
approval of the stockholders of United Rentals, Inc., a Delaware corporation, or
any successor thereto by merger, by the same vote that is required by the
General Corporation Law of the
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State of Delaware and/or the certificate of incorporation of this Corporation."
Section 1.4 By-laws. From and after the Effective Time, the By-laws
of the Company, as in effect immediately prior to the Effective Time, shall be
the By-laws of the Surviving Corporation until thereafter amended as provided
therein or by applicable law.
Section 1.5 Directors. The directors of the Company immediately
prior to the Effective Time shall be the initial directors of the Surviving
Corporation and will hold office from the Effective Time until their successors
are duly elected or appointed and qualified in the manner provided in the
Certificate of Incorporation and the By-laws of the Surviving Corporation or as
otherwise provided by law.
Section 1.6 Officers. The officers of the Company immediately prior
to the Effective Time shall be the initial officers of the Surviving Corporation
and will hold office from the Effective Time until their successors are duly
elected or appointed and qualified in the manner provided in the Certificate of
Incorporation and the By-laws of the Surviving Corporation or as otherwise
provided by law.
Section 1.7 Additional Actions. Subject to the terms of this
Agreement, the parties hereto shall take all such reasonable and lawful action
as may be necessary or appropriate in order to effectuate the Merger. If, at any
time after the Effective Time, the Surviving Corporation shall consider or be
advised that any deeds, bills of sale, assignments, assurances or any other
actions or things are necessary or desirable to vest, perfect or confirm, of
record or otherwise, in the Surviving Corporation its right, title or interest
in, to or under any of the rights, properties or assets of either of Mergeco or
the Company acquired or to be acquired by the Surviving Corporation as a result
of, or in connection with, the Merger or otherwise to carry out this Agreement,
the officers of the Surviving Corporation shall be authorized to execute and
deliver, in the name and on behalf of each of Mergeco and the Company, all such
deeds, bills of sale, assignments and assurances and to take and do, in the name
and on behalf of each of Mergeco and the Company or otherwise, all such other
actions
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and things as may be necessary or desirable to vest, perfect or confirm any and
all right, title and interest in, to and under such rights, properties or assets
in the Surviving Corporation or otherwise to carry out this Agreement.
Section 1.8 Conversion of Securities. At the Effective Time, by
virtue of the Merger and without any action on the part of URH, Mergeco, the
Company or the holder of any of the following securities:
(a) Each issued and outstanding share of URH Common Stock owned of
record by the Company immediately prior to the Effective Time shall be cancelled
and retired without payment of any consideration therefor and shall cease to
exist and no Company Common Stock or other consideration shall be delivered in
exchange for any such URH Common Stock.
(b) Each share or fraction of a share of Company Common Stock issued
and outstanding immediately prior to the Effective Time shall be converted into
one, or an equal fraction of one, duly issued, fully paid and nonassessable
share of URH Common Stock.
(c) Each share of common stock, par value $0.01 per share, of
Mergeco issued and outstanding immediately prior to the Effective Time shall be
converted into and thereafter represent one duly issued, fully paid and
nonassessable share of common stock, par value $0.01 per share, of the Surviving
Corporation.
(d) From and after the Effective Time, holders of certificates
formerly evidencing Company Common Stock shall cease to have any rights as
stockholders of the Company, except as provided by law; provided, however, that
such holders shall have the rights set forth in Section 1.9 herein.
Section 1.9 No Surrender of Certificates; Stock Transfer Books. At
the Effective Time, the designations, rights, powers and preferences, and
qualifications, limitations and restrictions thereof, of the capital stock of
URH, will, in each case, be identical with those of the Company immediately
prior to the Effective Time. Accordingly, until thereafter surrendered for
transfer or exchange in the ordinary course, each outstanding
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certificate that, immediately prior to the Effective Time, evidenced Company
Common Stock shall, from the Effective Time, be deemed and treated for all
corporate purposes to evidence the ownership of the same number of shares of URH
Common Stock.
Section 1.10 Certificate of Incorporation of URH. The Company hereby
consents to the use of the name "United Rentals, Inc." by URH from and after the
Effective Time. URH shall, at the Effective Time or immediately thereafter, file
an Amendment to the Certificate of Incorporation with the Secretary of State of
the State of Delaware changing the corporate name of URH to "United Rentals,
Inc."
ARTICLE II
ACTIONS TO BE TAKEN IN
CONNECTION WITH THE MERGER
Section 2.1 Assumption of Plan. URH and the Company hereby agree
that they will, at the Effective Time, execute, acknowledge and deliver an
assumption agreement pursuant to which URH will, from and after the Effective
Time, assume and agree to perform all obligations of the Company pursuant to (x)
the Company's 1997 Stock Option Plan (the "Plan").
Section 2.2 Reservation of Shares. On or prior to the Effective
Time, URH will reserve sufficient shares of URH Common Stock to provide for the
issuance of URH Common Stock upon exercise of options outstanding under the
Plan, exercise of all outstanding warrants, in connection with the acquisitions
of U.S. Rentals, Inc., Rental Tools and Equipment Co. International, Inc.,
McClinch, Inc., McClinch Equipment Services, Inc. and Grey Fox Equipment, Inc.,
and in connection with the 7.0% convertible notes due October 2002.
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ARTICLE III
CONDITIONS OF MERGER
Section 3.1 Conditions Precedent. The obligations of the parties to
this Agreement to consummate the Merger and the transactions contemplated by
this Agreement shall be subject to fulfillment or waiver by the parties hereto
at or prior to the Effective Time of each of the following conditions:
(a) The URH Common Stock to be issued pursuant to the Merger shall
have been approved for listing, upon official notice of issuance, by the New
York Stock Exchange.
(b) No order, statute, rule, regulation, executive order,
injunction, stay, decree, judgment or restraining order that is in effect shall
have been enacted, entered, promulgated or enforced by any court or governmental
or regulatory authority or instrumentality which prohibits or makes illegal the
consummation of the Merger or the transactions contemplated hereby.
(c) Weil, Gotshal & Manges LLP, special tax counsel to the Company,
shall not have withdrawn its opinion that holders of the Company Common Stock
will not recognize gain or loss for United States federal income tax purposes as
a result of the Merger.
ARTICLE IV
COVENANTS
Section 4.1 Election of Directors. Prior to the Effective Time, the
Company, in its capacity as the sole stockholder of URH, will, if necessary to
comply with Section 251(g) of the DGCL, remove each of the then directors of
URH, cause the board of directors of URH to effect such amendments to the bylaws
of URH as are necessary to increase the number of directors of URH to equal the
number of directors of the Company immediately prior to the Effective Time, and
elect each person who is then a member of the board of directors of the Company
as a director of URH, each of whom shall serve until the next annual meeting of
stockholders of URH and until his successor shall have been elected and
qualified.
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Section 4.2 Listing of URH Common Stock. URH will use its best
efforts to obtain, at or before the Effective Time, authorization to list, upon
official notice of issuance, on the New York Stock Exchange URH Common Stock
issuable pursuant to the Merger.
Section 4.3 The Plan. The Company and URH will take or cause to be
taken all actions necessary or desirable in order for URH to assume the Plan and
to assume (or become a participating employer in) each other existing employee
benefit plan and agreement of the Company, with or without amendments, or to
adopt comparable plans, all to the extent deemed appropriate by the Company and
URH and permitted under applicable law.
ARTICLE V
TERMINATION AND AMENDMENT
Section 5.1 Termination. This Agreement may be terminated and the
Merger contemplated hereby may be abandoned at any time prior to the Effective
Time by action of the Board of Directors of the Company, the Board of Directors
of URH or the Board of Directors of Mergeco if such Board of Directors should
determine that for any reason the completion of the transactions provided for
herein would be inadvisable or not in the best interest of such corporation or
its stockholders. In the event of such termination and abandonment, this
Agreement shall become void and neither the Company, URH or Mergeco nor their
respective stockholders, directors or officers shall have any liability with
respect to such termination and abandonment.
Section 5.2 Amendment. This Agreement may be supplemented, amended
or modified by the mutual consent of the Boards of Directors of the parties to
this Agreement to the fullest extent permitted by law.
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ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 6.1 Governing Law. This Agreement shall be governed by and
construed and enforced under the laws of the State of Delaware.
Section 6.2 Counterparts. This Agreement may be executed in one or
more counterparts, each of which when executed shall be deemed to be an original
but all of which shall constitute one and the same agreement.
Section 6.3 Entire Agreement. This Agreement, including the
documents and instruments referred to herein, constitutes the entire agreement
and supersedes all other prior agreements and undertakings, both written and
oral, among the parties, or any of them, with respect to the subject matter
hereof.
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IN WITNESS WHEREOF, URH, Mergeco and the Company have caused this
Agreement to be executed as of the date first written above by their respective
officers thereunto duly authorized.
UNITED RENTALS, INC.
By: /s/ Sandra E. Welwood
--------------------------------
Name: Sandra E. Welwood
Title: Vice President
UNITED RENTALS HOLDINGS, INC.
By: /s/ Sandra E. Welwood
--------------------------------
Name: Sandra E. Welwood
Title: Vice President
UNITED RENTALS MERGER CO., INC.
By: /s/ Sandra E. Welwood
--------------------------------
Name: Sandra E. Welwood
Title: Vice President
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CERTIFICATE OF THE SECRETARY
OF
UNITED RENTALS MERGER CO., INC.
I, John N. Milne, the Secretary of United Rentals Merger Co., Inc.,
hereby certify that the Agreement and Plan of Merger to which this certificate
is attached, after having been first duly signed on behalf of the corporation by
the Vice President under the corporate seal of said corporation, was duly
approved and adopted by written consent of the sole shareholder of United
Rentals Merger Co., Inc. on August 5, 1998.
Witness my hand and seal of said United Rentals Merger Co., Inc. on
August 5, 1998.
/s/ John N. Milne
--------------------------------
Name: John N. Milne
Secretary
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CERTIFICATE OF THE SECRETARY
OF
UNITED RENTALS, INC.
I, John N. Milne, the Secretary of United Rentals, Inc., hereby
certify that the Agreement and Plan of Merger to which this certificate is
attached has been adopted pursuant to Section 251(g) of the General Corporation
Law of the State of Delaware and that the conditions of the first sentence of
such subsection have been met.
Witness my hand and seal of said United Rentals, Inc. on August 5,
1998.
/s/ John N. Milne
--------------------------------
Name: John N. Milne
Secretary
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