Exhibit (d)(4)
CONFIDENTIAL
Clean Team Confidentiality Agreement
This Clean Team Confidentiality Agreement (this “Agreement”) is entered into this 20th day of December 2024, by and between H&E Equipment Services, Inc., a Delaware corporation (“Disclosing Party”, and together with its subsidiaries and affiliates, the “Company”), and United Rentals, Inc., a Delaware corporation (together with its subsidiaries and affiliates, “Receiving Party”, and together with Disclosing Party, the “Parties”, and each, a “Party”), in connection with Receiving Party’s possible acquisition, whether via merger, sale of equity interests, sale of assets or otherwise, of the Company (the “Potential Transaction”), and related due diligence as set forth herein, and in furtherance of the Confidentiality Agreement entered into between Disclosing Party and Receiving Party on the 14th day of November, 2024 (the “NDA”). Capitalized terms used in this Agreement that are not otherwise defined shall have the meanings set forth in the NDA.
To further advance the discussions related to the Potential Transaction, certain representatives of Receiving Party (“Permitted Representatives”), as defined in Paragraph 2 below, may need to review certain competitively sensitive information (“Clean Team Information”). This information will be disclosed to Receiving Party’s Permitted Representatives on the following terms and conditions:
| 1. | Clean Team Information shall include Confidential Information that Disclosing Party determines in its sole discretion contains non-public, competitively sensitive information that is (i) placed in a clean room to be designated by Disclosing Party (the “Clean Room”) or otherwise communicated in written or other tangible form and marked “Clean Team” at the time of disclosure, or (ii) if a verbal disclosure is made to a Permitted Representative, information that is so identified at the time of disclosure. Where only portions of a document or verbal communication are designated as competitively sensitive, only those portions so designated will comprise “Clean Team Information.” To the extent that Receiving Party believes certain information or documents designated as Clean Team Information may not be competitively sensitive, the Parties’ respective outside antitrust counsel shall confer in good faith to determine whether specific information should be reclassified. |
| 2. | “Permitted Representatives” shall mean (i) the employees listed on Exhibit A, which may be supplemented by Receiving Party from time to time, subject to Disclosing Party’s prior written approval; and (ii) Receiving Party’s outside legal counsel, economists, financial advisors, consultants, lenders and insurers retained in connection with the Potential Transaction (“Outside Advisors”) listed on Exhibit A, which may be supplemented by Receiving Party from time to time, subject to Disclosing Party’s prior written approval. Receiving Party represents, warrants and covenants that the employees identified as Permitted Representatives do not, and, until the earlier of (a) two (2) years following the date hereof in the event that the Potential Transaction is not consummated or (b) consummation of the Potential Transaction, will not participate in or have day-to-day responsibility at Receiving Party for sales, pricing, bidding, procurement with respect to products or services provided to the Parties by vendors or suppliers that overlap or in which they compete that potentially implicate Receiving Party’s procurement-side competitive practices or strategies, contracting with customers or suppliers with respect to products or services of Receiving Party competitive with products or services of Disclosing Party, marketing, or employee compensation or benefits where the Parties compete or may compete for employees. Receiving Party agrees that it will be responsible for any violation of this Agreement by its Permitted Representatives. |
| 3. | Receiving Party shall limit disclosure and access to its Clean Room and to Clean Team Information to its Permitted Representatives in accordance with this Agreement. Any breach or attempted breach of this Agreement by Receiving Party and/or Permitted Representatives shall be promptly reported in writing (email being sufficient) to Disclosing Party. |
| 4. | Receiving Party shall, and shall cause its Permitted Representatives to, keep all Clean Team Information strictly confidential and to not disclose any Clean Team Information (including any notes based on Clean Team Information) to any other person or entity, except to the extent permitted by this Agreement. Receiving Party shall, and shall cause Permitted Representatives to, refrain from reproduction or distribution of document(s) and data containing Clean Team Information to any third party or to any representative, employee, or advisor of Receiving Party who is not a Permitted Representative (provided that the foregoing shall not restrict disclosure, dissemination, reproduction, or distribution among Permitted Representatives). |
| 5. | Permitted Representatives may prepare reports or other work product or analyses of the Potential Transaction including aggregated or high level analyses of Clean Team Information (“Reports”) for distribution to persons employed by the Receiving Party who are not Permitted Representatives provided that such Reports sufficiently aggregate or summarize Clean Team Information so that they do not disclose or otherwise reveal any Clean Team Information in compliance with the antitrust laws. Any such Report shall be reviewed and approved by Receiving Party’s outside antitrust counsel prior to distribution to persons employed by the Receiving Party who are not Permitted Representatives and shall be used only for purposes related to the Potential Transaction (e.g., due diligence, internal approvals, regulatory approvals, financing, integration planning). |
| 6. | Permitted Representatives will promptly destroy or return to Disclosing Party any Clean Team Information in the event that (i) the Potential Transaction does not proceed, (ii) Disclosing Party or its affiliates executes definitive transaction documentation related to the Potential Transaction with any other person other than Receiving Party or (iii) they cease to be a Permitted Representative. |
| 7. | This Agreement shall be effective as of the date hereof. The obligations of confidentiality and non-use related to the Clean Team Information received under this Agreement shall be binding and continue in force until the earlier of the consummation of the Potential Transaction and the expiration of the NDA; provided that Receiving Party’s obligations with respect to any provision of this Agreement that specified the duration of such provision shall terminate or expire at the end of the applicable specified duration period. Reports are Confidential Information as defined within the NDA and the obligations of confidentiality and non-use related to Reports shall be governed by the provisions of the NDA. |
| 8. | This Agreement shall be binding upon and shall inure to the benefit of the Parties and their permitted successors and assigns. |
| 9. | Failure to enforce any provisions of this Agreement shall not constitute a waiver of any of the terms and conditions hereof. |
| | The Parties acknowledge and agree that a breach of the provisions of this Agreement would cause Disclosing Party to suffer irreparable harm that could not be adequately remedied by an action at law. Accordingly, the Parties agree that Disclosing Party is entitled to specific performance of the provisions of this Agreement to enjoin a breach or attempted breach of the provisions thereof and to any other remedy awarded by a court of competent jurisdiction. |
| 10. | No amendment, modification, or waiver of the terms or conditions of this Agreement shall be binding unless placed in writing and duly executed by the party(s) to be bound thereto. |
| 11. | In the event of conflict between this Agreement and any other agreements between the Parties, including but not limited to the NDA, this Agreement shall control unless a subsequent agreement explicitly states otherwise. Except as otherwise provided herein, the Parties’ rights and obligations with respect to the Confidential Information disclosed pursuant to this Agreement shall be governed by the NDA. |
| 12. | This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to the conflict of laws principles thereof. Exclusive jurisdiction over and venue of any suit arising out of or relating to this Agreement will be in the state and federal courts located in the State of Delaware, and each of the Parties consents to the personal jurisdiction of, and venue in, those courts. |
[Signature page follows]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date and year first above written.
| | H&E Equipment Services, Inc. |
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| | By: | /s/ Bradley W. Barber |
| | | Bradley W. Barber |
| | | Chief Executive Officer |
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| | United Rentals, Inc. |
| | |
| | By: | /s/ Joli Gross |
| | | Joli Gross |
| | | SVP, CLSO, Corporate Secretary |
EXHIBIT A
Clean Team Permitted Representatives from Receiving Party
Permitted Representatives, as defined in Paragraph 2 above, include the following employees and Outside Advisors of Receiving Party (which may be supplemented from time to time pursuant to the Agreement):
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