The foregoing description of the 2014 Plan Amendment does not purport to be complete and is subject to and qualified in its entirety by reference to the 2014 Plan Amendment, a copy of which is attached hereto as Exhibit10.3, and the terms of which are incorporated herein by reference.

Conditions to Consummation of the Merger

Under the Merger Agreement, consummation of the Merger is subject to the satisfaction or waiver of certain customary closing conditions, including, among others: (i)the information statement of Neff in connection with the Merger shall have been mailed to stockholders of Neff at least twenty (20) days prior to the closing of the Merger; (ii)the absence of any injunction which prohibits the consummation of the Merger and any statute, rule, regulation, judgment, decision, decree or other order that has the effect of making the Merger illegal or otherwise prohibits its consummation; (iii)subject to certain materiality and material adverse effect exceptions, the accuracy of the parties’ respective representations and warranties and compliance with the parties’ respective covenants; and (iv)the expiration or termination of the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.

Solicitations of Acquisition Proposals

Go-Shop Period

From the execution of the Merger Agreement and until 11:59 p.m.(New York City time) on August20, 2017 (the period until such date, the “Go-Shop Period”), Neff, its subsidiaries and their respective representatives have the right to solicit, initiate, encourage or facilitate any inquiry or the making of any alternative acquisition proposal (an “Acquisition Proposal”), including by providing information (including non-public information and data) regarding, and affording access to the business, properties, assets, books, records and personnel of, Neff and its subsidiaries to any person to a confidentiality agreement, and engage in, enter into, continue or otherwise participate in any discussions or negotiations with any persons or group of persons with respect to any Acquisition Proposals and cooperate with or assist or participate in or facilitate any such inquiries, proposals, discussions or negotiations or any effort or attempt to make any Acquisition Proposal.

No-Shop Period

Except with respect to an Acquisition Proposal that is subject to a holdover period of up to five business days for certain Acquisition Proposals received during the Go-Shop Period, from 12:00 a.m.(New York City time) on August21, 2017 (the “No-Shop Period Start Date”) until the earlier of (a)the Effective Time and (b)the termination of the Merger Agreement, Neff has agreed that it will not, and will cause its subsidiaries and their representatives not to, (i)solicit, encourage, discuss or negotiate any Acquisition Proposal or potential Acquisition Proposal, (ii)participate in any negotiations regarding an Acquisition Proposal with, or furnish any non-public information regarding an Acquisition Proposal to, any person or group of persons that is considering making an Acquisition Proposal, (iii) approve, endorse or recommend any Acquisition Proposal or (iv)enter into any definitive agreement with respect to a Superior Proposal (as defined in the Merger Agreement).

Superior Proposals

In the event that the Neff Board or a duly authorized committee receives an Acquisition Proposal that it determines is a Superior Proposal, Neff may, prior to the end of the Go—Shop Period (subject to its receipt during the Go-Shop Period of certain Acquisition Proposals that are subject to a “holdover” period of up to five business days) subject to compliance with notice, providing for a period for H&E to match such proposal, payment of a termination fee and other conditions set forth in the Merger Agreement, terminate the Merger Agreement to accept the applicable Superior Proposal.

Termination Rights; Termination Fees

The Merger Agreement contains certain customary termination rights, including that each of H&E and Neff has the right to terminate the agreement after January14, 2018 if the Merger has not been consummated, provided that if all of the conditions to closing have been satisfied other than having obtained HSR clearance, each of H&E and Neff may extend such outside date to April10, 2018. In the event that Neff terminates the Merger Agreement in accordance with the go-shop procedures described above to enter into a definitive agreement for a Superior Proposal, Neff will be required to pay H&E a cash termination fee in the amount of

$13,165,000. In the event that Neff or H&E terminates the Merger Agreement under certain other specified circumstances, Neff will be required to pay H&E a cash termination fee in the amount of $18,430,000.

Representations, Warranties and Covenants

The Merger Agreement includes customary representations, warranties and covenants of Neff, H&E and Merger Sub. Among other things, Neff has agreed to conduct its business in the ordinary course of business consistent with past practice in all material respects until the Merger is consummated.

The foregoing descriptions of the Merger Agreement and the transactions contemplated thereby do not purport to be complete and are subject to and qualified in their entirety by reference to the Merger Agreement, a copy of which is attached hereto as Exhibit2.1, and the terms of which are incorporated herein by reference.

Support Agreement

Also on July14, 2017, concurrently with the execution of the Merger Agreement, H&E entered into a support agreement (the “Support Agreement”) with Wayzata Opportunities Fund II, L.P. and Wayzata Opportunities Fund Offshore II, L.P. (together, the “Key Holders”). The Key Holders beneficially own 14,951,625 shares of ClassB common stock, par value $0.01 per share, of the Company (“ClassB Common Stock” and together with ClassA Common Stock, “Neff Common Stock”) representing approximately 62.7% of the outstanding Neff Common Stock. Concurrently with the execution of the Support Agreement, the Key Holders executed and delivered a written consent effective immediately following execution of the Merger Agreement (the “Written Consent”) adopting the Merger Agreement and approving the Merger. Under the Support Agreement, the Key Holders agreed during the term of the Support Agreement, subject to certain limitations set forth therein, to vote all of their shares of Neff Common Stock against any action or agreement that is intended to prevent, interfere with, impair or delay the Merger. The Key Holders are permitted to engage in go-shop activities to the extent those activities are permitted by Neff under the Merger Agreement as described above, and the Support Agreement otherwise restricts the Key Holders from discussions, negotiations and other actions related to acquisition proposals. The Support Agreement terminates on the earliest of (i)the mutual written consent of H&E and the Key Holders, (ii)the date the Merger Agreement is terminated in accordance with its terms, and (iii)the closing of the Merger. Additionally, each Key Holder has the right to terminate the Support Agreement following certain material amendments to the Merger Agreement.

As a result of the execution and delivery of the Written Consent, the required approval of the Merger by the stockholders of Neff has been obtained and no additional stockholder approvals are required to complete the Merger. The Written Consent will be deemed null and void and will have no further force or effect if the Support Agreement is terminated in accordance with its terms, including if the Merger Agreement is terminated to its terms.

The foregoing descriptions of the Support Agreement and the actions contemplated thereby do not purport to be complete and are subject to and qualified in their entirety by reference to the Support Agreement, a copy of which is attached hereto as Exhibit99.1, and the terms of which are incorporated herein by reference.

Exchange and Termination Agreements

On July14, 2017, concurrently with execution and delivery of the Merger Agreement, the Key Holders entered into an Exchange and Termination Agreement (the “Key Holder Exchange and Termination Agreement”) with Neff, H&E and Neff Holdings LLC, a Delaware limited liability company (“Neff Holdings”), and the LLC Optionholders (as defined therein) entered into an Exchange and Termination Agreement (the “LLC Optionholder Holder Exchange and Termination Agreement” and, together with the Key Holder Exchange and Termination Agreement, the “Exchange and Termination Agreements”), with Neff, H&E, Neff Holdings and the Management Representative (as defined therein). to the Exchange and Termination Agreements, immediately prior to the Effective Time, the Tax Receivable Agreement, dated as of November26, 2014 (the “Tax Receivable Agreement”), by and among Neff, Holdings, each of the members from time to time party thereto, the LLC Optionholders and the Management Representative, will be terminated without any payment by Neff. Under the Tax Receivable Agreement, Neff previously agreed to make certain payments to the Key Holders based upon the reduction of Neff’s liability for U.S. federal, state, local and franchise taxes arising from adjustments to Holding’s basis in its assets and imputed interest.

to the Key Holder Exchange and Termination Agreement, immediately prior to the Effective Time, all of the Common Units (the “LLC Units”) in Holdings owned by each of the Key Holders shall be

exchanged (the “Key Holder Exchange”) directly with the Company for shares of ClassA Common Stock (on a one-for-one basis with the number of LLC Units) in accordance with the Second Amended and Restated Limited Liability Company Agreement of Neff Holdings, dated as of November26, 2014 (the “LLC Agreement”). Simultaneous with the consummation of the Key Holder Exchange, all of the related ClassB Common Stock of Neff owned by each of the Key Holders will be cancelled by Neff to Neff’s Amended and Restated Certificate of Incorporation for no consideration. Additionally, to the LLC Optionholder Exchange and Termination Agreement, immediately prior to the Effective Time, all of the options convertible into LLC Units (the “LLC Options”) held by the LLC Optionholders shall be converted on a cashless basis into LLC Units and such LLC Units shall be exchanged (the “LLC Optionholder Exchange” and together with the Key Holder Exchange, the “Exchange”) directly with the Company for shares of ClassA Common Stock (on a one-for-one basis with the number of LLC Units) in accordance with the LLC Agreement.

Additionally, to the Exchange and Termination Agreements, immediately prior to the Effective Time, the Registration Rights Agreement, dated as of November26, 2014, by and among Neff, the Key Holders, and certain other individuals, will be terminated.

The foregoing descriptions of the Exchange and Termination Agreements and the transactions contemplated thereby do not purport to be complete descriptions and are subject to and qualified in their entirety by reference to the Exchange and Termination Agreements, copies of which are attached hereto as Exhibits 10.1 and 10.2, respectively, and the terms of which are incorporated herein by reference.

The Merger Agreement, the Support Agreement and the Termination and Exchange Agreements and the summaries of each have been included to provide investors and security holders with information regarding their terms. Factual disclosures about the Company contained in this Current Report on Form8-K or in the Company’s other public reports filed with the U.S. Securities and Exchange Commission (“SEC”) may supplement, update or modify the factual disclosures about the Company contained in the Merger Agreement, the Support Agreement and the Termination and Exchange Agreements, as applicable. In addition, such factual disclosures (a)have been made only for purposes of these agreements, (b)may be subject to limits or exceptions agreed upon by the contracting parties, (c)are subject to materiality qualifications contained in the agreements which may differ from what may be viewed as material by investors, (d)were made only as of the date of such agreements or other specific dates and (e)have been included in such agreements for the purpose of allocating risk between the contracting parties rather than establishing matters as facts. Additionally, the representations, warranties, covenants, conditions and other terms of these agreements may be subject to subsequent waiver or modification. Matters may change from the state of affairs contemplated by the representations and warranties contained in these agreements. The Company will provide additional disclosure in its public reports to the extent that it is aware of the existence of any material facts that are required to be disclosed under federal securities law and that might otherwise contradict the terms and information contained in these agreements and will update such disclosure as required by federal securities laws. Accordingly, the representations and warranties of the Company contained in these agreements should not be read alone but instead should be read together with the information provided elsewhere in this Current Report on Form8-K, the Company’s other reports, statements and filings that it publicly files with the SEC from time to time. Please refer to the disclosure in this Current Report on Form8-K under the heading “Additional Important Information About the Proposed Merger and Where to Find It”

Item 5.03. Amendments to Certificate of Incorporation or Bylaws; Change in Fiscal Year.

On July14, 2017, the Neff Board, having determined that it was in the best interests of the Company and its stockholders to amend the Amended and Restated By-Laws of the Company (the “Bylaws”), by resolution authorized, approved and adopted an amendment to the Bylaws that became effective on July14, 2017 (the “Bylaw Amendment”).

The Bylaw Amendment provides that, unless the Company consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware (the “Court of Chancery”) shall, to the fullest extent permitted by law, be the sole and exclusive forum for (i)any derivative action or proceeding brought on behalf of the Company, (ii)any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee or stockholder of the Company to the Company or the Company’s stockholders, (iii)any action asserting a claim arising to any provision of the General Corporation Law of the State of Delaware (the “DGCL”), the Bylaws or the Company’s Amended and Restated Certificate of Incorporation or

as to which the DGCL confers jurisdiction on the Court of Chancery, or (iv)any action governed by the internal affairs doctrine.

The foregoing description of the Bylaw Amendment does not purport to be a complete description and is subject to and qualified in its entirety by reference to the Bylaw Amendment, a copy of which is attached hereto as Exhibit3.1 and is incorporated herein by reference.

Item 5.07. Submission of Matters to a Vote of Security Holders.

On July14, 2017, the Key Holders, holders of 14,951,625 shares of ClassB Common Stock representing approximately 62.7% of the outstanding Neff Common Stock at such time, executed the Written Consent adopting the Merger Agreement and approving the Merger. The Written Consent will terminate in the event that the Support Agreement is terminated in accordance with its terms. No further approval of the stockholders of Neff is required to adopt the Merger Agreement or approve the Merger. Neff will file with the SEC as promptly as reasonably practicable, and mail to its stockholders, an information statement describing the Merger Agreement and the transactions contemplated thereby, including the Merger.

Item 8.01. Other Events.

On July14, 2017, Neff and H&E issued a joint press release regarding its entry into the Merger Agreement. A copy of the press release is attached hereto as Exhibit99.2 and is incorporated by reference herein.

Cautionary Statement Regarding Forward-Looking Statements

This communication contains forward-looking statements within the meaning of Section27A of the Securities Act of 1933 and Section21E of the Securities Exchange Act of 1934 (the “Exchange Act”). Forward-looking statements are based on Neff’s current plans or expectations that are inherently subject to significant business, economic and competitive uncertainties and contingencies. These uncertainties and contingencies can affect actual results and could cause actual results to differ materially from those expressed in any forward-looking statements made by, or on behalf of, Neff. In particular, statements using words such as “may,” “should,” “estimate,” “expect,” “anticipate,” “intend,” “believe,” “predict,” “potential,” or words of similar import generally involve forward-looking statements. The inclusion of forward-looking statements in this communication should not be considered as a representation by Neff or any other person that Neff’s current plans or expectations will be achieved. Numerous factors could cause actual results to differ materially from those in such forward-looking statements, including, but not limited to: the occurrence of any event, change or other circumstances that could give rise to the termination of the Merger Agreement; changes in the business or operating prospects of Neff; the failure to satisfy conditions to completion of the Merger, including receipt of regulatory approvals; risks that the proposed transaction disrupts Neff’s current plans and operations, including the occurrence of an event, circumstance, occurrence, fact, condition, development, effect or change that constitutes a Company Material Adverse Event (as defined in the Merger Agreement); the ability to retain key personnel; the ability to recognize the benefits of the Merger; the amount of the costs, fees, expenses and charges related to the Merger; risks relating to operating in a highly competitive environment; risks relating to deteriorating market conditions; the risk of failures of Neff’s customers, suppliers or other counterparties to honor their obligations to Neff; the effect on Neff’s business of potential changes in the regulatory system under which it operates; risks relating to potential adverse tax developments; risks relating to adverse legislative developments; losses that Neff could face from terrorism, political unrest and war; changes in economic conditions or inflation; and other factors affecting future results disclosed in Neff’s filings with the SEC, including but not limited to those discussed under Item 1A, “Risk Factors”, in Neff’s Annual Report on Form10-K for the year ended December31, 2016 and in other reports filed by Neff with the SEC.

Additional Important Information About the Proposed Merger and Where to Find It

This communication relates to a proposed Merger between H&E and Neff that will become the subject of an information statement for Neff’s stockholders containing information with respect to the Merger specified in Schedule 14C promulgated under the Exchange Act and describing the proposed Merger, to be filed with the SEC. When completed, an information statement will be mailed to Neff’s stockholders. This communication is not a substitute for the information statement or any other document that H&E or Neff may file with the SEC or that Neff may send to its stockholders in connection with the proposed Merger. Neff stockholders are urged to read the information statement and all other relevant documents filed with the SEC or sent to Neff stockholders as they become available because they will contain important information about the proposed Merger. All

documents, when filed, will be available free of charge at the SEC’s website (www.sec.gov). You may also obtain copies of documents filed by Neff with the SEC by visiting Neff’s website at www.neffrental.com.

This communication does not constitute an offer to sell or the solicitation of an offer to buy any securities or a solicitation of any vote or approval.

Item 9.01. Financial Statements and Exhibits.

(d)

Exhibits

*Schedules and exhibits have been omitted to Item 601(b)(2)of Regulation S-K. Neff agrees to furnish supplementally to the Securities and Exchange Commission a copy of any omitted schedule or exhibit upon request, subject to Neff’s right to request confidential treatment of any requested schedule or exhibit.

to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

ExhibitIndex

*Schedules and exhibits have been omitted
Neff Corp Exhibit
EX-2.1 2 a17-17963_1ex2d1.htm EX-2.1 Exhibit 2.1   AGREEMENT AND PLAN OF MERGER   by and among   H&E EQUIPMENT SERVICES,…
To view the full exhibit click here

About Neff Corporation (NYSE:NEFF)

Neff Corporation is an equipment rental company. The Company offers various equipment rental solutions for its customer base, including non-residential construction, oil and gas, and residential construction customers. The Company’s fleet of equipment includes earthmoving, material handling, aerial and other rental equipment. The Company’s operations are focused on the Sunbelt states of Virginia, North Carolina, South Carolina, Florida, Georgia, Alabama, Tennessee, Louisiana, Texas, Arizona, Nevada and California. The Company’s operations are engaged in rental fleet, equipment sales, and parts and service in approximately five regions in the United States, including Florida, Atlantic, Central, Southeastern and Western. The Company operates over 65 branches. Its rental fleet consisted of over 14,000 major units of equipment. Its earthmoving equipment include excavators, backhoes, loaders, bulldozers, mini-excavators, trenchers, sweepers and tractors, track loaders and skid steers.